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/raid1/www/Hosts/bankrupt/CAR_Public/181025.mbx C L A S S A C T I O N R E P O R T E R Thursday, October 25, 2018, Vol. 20, No. 214 Headlines 377 GREENWICH: Faces Nixon Suit in NY Asserting ADA Breach ACADIA HEALTHCARE: Dec. 3 Lead Plaintiff Bid Deadline Set ALL MARKET: Judge Dismisses Coconut Water Class Action ALLTRAN FINANCIAL: Judgment on Pleadings Bid in Taylor Denied ALNYLAM PHARMA: Pomerantz LLP Files Securities Fraud Suit ALPHA RECOVERY: Finell Suit Asserts FDCPA Violation AMAZON.COM INC: Dismissal of Arizona Claims in Labor Suit Affirmed AMCOR RIGID PLASTICS: Faces Cornejo Class Action in Illinois AMERICAN AIRLINES: Class Action Over Late Check-Ins Tossed APPLE INC: Court Partly Grants Bid to Certify Class in Grace Suit APPLIED OPTOELECTRONICS: Nov. 30 Lead Plaintiff Bid Deadline ASSET RECOVERY: Amelchenko Suit Asserts FDCPA Violation AT&T: Judge Tosses Class Action Over Coaxial Cable Contamination BEACON HOTEL: Breeze Files Civil Rights Class Suit BLUE LINE: Seeks Dismissal of Speed Camera Ticket Class Action BRISTOL-MYERS: Barnes & Thornburg Attorneys Discuss Ruling BURGERVILLE: Faces Class Action Over Cybersecurity Breach CANADA: Ex-Inmates File Class Action Over Solitary Confinement CATHOLIC GUARDIAN: Fernandez Class Has Conditional Certification CHEGG INC: Kaskela Law Files Class Action Lawsuit CHEGG INC: Kirby McInerney Files Securities Class Action Lawsuit CHEGG INC: Rigrodsky & Long Files Securities Fraud Class Suit CHICKEN OF THE SEA: Faces Class Action Over Tuna Price-Fixing CITIGROUP INC: Averts TCPA Class Action in Illinois COLACEM CANADA: Jan. 28 Settlement Approval Hearing COSTCO WHOLESALE: Settlement in Backer Law Suit Has Prelim Approval DAMYE GROUP: Gonzales Garcia Files Labor Class Suit in New York DOORDASH INC: Bessard Suit Seeks Payment of Overtime Wages DOORDASH INC: Workchow Development Files Suit in Tennessee ELITE MGT: Dismissal of Unjust Enrichment Claim in Barger Flipped EVENTBRITE: Faces Class Action Over Ticketfly Cyber-Attack EXCELSIOR HOTEL: Faces Civil Rights Suit in New York FAITH AND FREEDOM: Wijesinha Sues Over Unsolicited Text Campaign FIRSTSOURCE ADVANTAGE: American Express Can Intervene in Brown Suit FORESTRY MGMT: Partial Summary Judgment Bid in Montford Denied GLENMORE & CENTRE: To Pay $2MM in Partial Class Action Settlement GLOBAL DOC: Benhayon Files Suit in Florida Court GLOBAL POWER: Shareholder Class Action Dismissed GMRI INC: Liggins Files Labor Class Action California GOOGLE INC: Averts UK Suit Over iPhone User Data Collection GOOGLE INC: Google+ to Shut Down Following User Data Exposure GOOGLE INC: Matic Sues Over Data Leak Exposing Users' Info GOOGLE INC: Settles Applicants' Age Discrimination Class Action HALSTON OPERATING: Figueroa Files ADA Suit in NY Ct. HASBRO INC: Robbins Geller Rudman Files Class Action Suit HUAZHU GROUP: Glancy Prongay Files Securities Fraud Class Action HYCROFT MINING: Class of Shareholders Certified in Canada IMPINJ INC: Robbins Arroyo Files Securities Fraud Suit INSURANCE SERVICES: Lap Seeks to Stop Sending of Unwanted Fax Ads JIA XING: Settlement in Kang FLSA Suit Has Court Approval JOY GLOBAL: Settlement in Duncan Suit Has Prelim Approval JPMORGAN CHASE: Employees File Class Action Over 401(k) Plan KERYX BIOPHARMACEUTICALS: Corwin Sues Over Akebia Merger KINDRED HEALTHCARE: Bryce Suit Removed to C.D. California KKW TRUCKING: $550K Deal in Demmings FCRA Suit Has Final Approval LIVING INTENTIONS: Ruiz Files Class Suit Over Product Mislabeling MACMAHON HOLDINGS: Settles Class Action for $6.7MM MACY'S RETAIL: Can Compel Arbitration in Davis FLSA Suit MAINE: Magistrate Recommends Dismissal of Gladu Prisoners Suit MGT CAPITAL: Bernstein Liebhard Files Class Action Lawsuit MGT CAPITAL: Gainey McKenna Files Class Action Lawsuit MIDLAND CREDIT: Gaspar Suit Asserts FDCPA Violation MILWAUKEE COUNTY, WI: Court Dismisses Bogan Prisoners Suit MISSISSIPPI: Bryant Seeks Writ of Mandamus in Stallworth Suit MOORE LAW: Violates FDCPA, Black Suit Asserts NATIONAL AUSTRALIA: Slater & Gordon Files Insurance Class Action NAVIENT: Faces Class Action Over Alleged Forgiveness Obstructions NERIUM INT'L: Can Compel Arbitration in Jia RICO Suit NEW PRIME: Supreme Court Hears Arguments in Arbitration Dispute NFL: Court to Consider Super Bowl Ticketing Claims OCH-ZIFF CAPITAL: Class in Menaldi Securities Fraud Suit Certified OCH-ZIFF CAPITAL: Settles Shareholder Class Action for $28.75MM ODWALLA INC: Court Narrows Claims in Casey FDCA Suit PCL CONSTRUCTION: Final Judgment in Power Outage Suit Entered PETSMART INC: Nov. 6 Hearing on Milburn Deal Prelim Approval Bid PORTFOLIO RECOVERY: Court Denies Bid to Dismiss Madinya FDCPA Suit PROFESSIONAL FRAME: Accused by Ventura of Not Paying Overtime Wages PROFLOWERS: 9th Cir. Vacates $8.7MM Attorneys' Fees Award PROGRESSIVE BUSINESS: Faces Consumer Credit Suit in Ca. PROGRESSIVE CASUALTY: Mitchell Dismissed from Jones TAC PROLOG CORP: Podzemelnyy Seeks to Recoup Minimum & Overtime Wages SCHARFMAN ORGANIZATION: Tenants File Rent Fraud Class Action SCHWAB INVESTMENTS: Dismissal of Northstar Suit Partly Affirmed SENTRY LIFE: Emerson Suit Stayed Pending Resolution of Maxon Suit SHELL OIL: Class Action Over Ski Slopes Coupons Settled SHERMAN'S 1400: Faces Disabilities Breach Suit in New York SHILOH INDUSTRIES: Thomas SACAC Dismissed with Prejudice SNSA INC: Daniels Suit Seeks Overtime Pay Under FLSA, AMWA STARBUCKS CORP: Marten Sues Over White Choco Drink Deceptive Ad SYRACUSE, NY: Settles Class Action Over Water Shut-Off Policy TESLA INC: Must Face Foreign Workers' Labor Class Action TICKETFLY: Faces Class Action in Illinois Over Data Breach TINTRI INC: Relief from Stay Bid V. Non-Debtors in Tuller Denied U-TEC: 2 More Potential Class Suits Filed Under Illinois BIPA UBER TECHNOLOGIES: Schnader Harrison Discusses Arbitration Ruling UNDER ARMOUR: Court Grants Bids to Dismiss Securities Suit UNION PACIFIC: Settlement in Hollis Labor Suit Has Final Approval UNITED HEALTHCARE: Court Enters Judgment in Teva Antitrust Suit USA DIVING: Faces Class Action Over Diving Coach Sexual Abuse USA TECHNOLOGIES: Kaplan Fox Files Securities Class Action USA TECHNOLOGIES: Nov. 13 Lead Plaintiff Bid Deadline WAFFLE HOUSE: Court Sustains Bid to Dismiss Amended Diamond Suit YIN WALL CITY: Settlement in Baumann Farms Suit Has Prelim Approval ZILLOW GROUP: Judge Tosses Securities Fraud Class Action ********* 377 GREENWICH: Faces Nixon Suit in NY Asserting ADA Breach ---------------------------------------------------------- Donald Nixon has filed a class action lawsuit against 377 Greenwich LLC. The case is styled as Donald Nixon on behalf of himself and all others similarly situated, Plaintiff v. 377 Greenwich LLC, Defendant, Case No. 1:18-cv-05861 (E.D. N.Y., Oct. 19, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. The Greenwich Hotel LLC was founded in 2008. The company's line of business includes operating public hotels and motels. It is located at 377 Greenwich St, New York, NY 10013, United States.[BN] The Plaintiff appears pro se. ACADIA HEALTHCARE: Dec. 3 Lead Plaintiff Bid Deadline Set --------------------------------------------------------- Bronstein, Gewirtz & Grossman, LLC, notified investors that a class action lawsuit has been filed against Acadia Healthcare Company, Inc. ("Acadia" or the "Company") (NASDAQ: ACHC) on behalf of shareholders who purchased or otherwise acquired Acadia securities between February 23, 2017 and October 24, 2017,(the "Class Period"). Such investors are encouraged to join this case by visiting the firm's site: www.bgandg.com/achc. 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, specifically: (1) misleading statements regarding Acadia's business and operations, including by falsely stating that the quality of Acadia's U.K. operations gave it a "competitive strength" that would drive future growth and profitability; (2) misleading guidance regarding its actual and projected 2017 revenue, earnings before interest, taxes, depreciation and amortization ("EBITDA") and earnings per share ("EPS"); and (3) consequently, Acadia stock traded at artificially inflated prices of over $52 per share during the Class Period. While Acadia stock was trading at these artificially inflated prices, Company CEO and President sold 706,000 shares of their Acadia stock for roughly $35 million. On October 24, 2017, Acadia revealed its financial results for the third quarter of 2017, exposing a severe deficit in EBITDA for its U.K. operations, resulting from "lower census and higher operating costs." As a result, Acadia lowered its 2017 financial guidance, and lowered its EPS guidance as much as $0.24 per share. Following these revelations, Acadia stock dropped 26%, from to close at $32.68 per share on October 25, 2017. A class action lawsuit has already been filed. If you wish to review a copy of the Complaint you can visit the firm's site: www.bgandg.com/achc or you may contact Peretz Bronstein, Esq. or his Investor Relations Analyst, Yael Hurwitz of Bronstein, Gewirtz & Grossman, LLC at 212-697-6484. If you suffered a loss in Acadia you have until December 3, 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 is a corporate litigation boutique. Its primary expertise is the aggressive pursuit of litigation claims on behalf of our clients. In addition to representing institutions and other investor plaintiffs in class action security litigation, the firm's expertise includes general corporate and commercial litigation, as well as securities arbitration. [GN] ALL MARKET: Judge Dismisses Coconut Water Class Action ------------------------------------------------------ Raychel Lean, writing for Law.com, reports that Robert N. Scola, a federal judge in the Southern District of Florida, dismissed a lawsuit and class action certification against All Market Inc. (AMI), the parent company of coconut water manufacturer Vita Coco, which plaintiffs claimed had misled the public with Brazil-themed packaging. Things got hairy for the coconut water manufacturer in April 2016 when plaintiffs Joshua Wasser, Ila Gold and Alyssa Rechtman filed a lawsuit alleging that "Born in Brazil," a slogan printed on certain containers, was "deceptive" because many of the company's coconuts came from other countries, including the Philippines, Indonesia, Thailand, Sri Lanka and Malaysia. As a result, the "plaintiffs purchased and drank Vita Coco that was not sourced or manufactured in Brazil, and that was made with non-Brazilian coconuts," the complaint said. Vita Coco argued that "Born in Brazil" referred to the birth of the company itself, not the origin of its ingredients. "Brazil is where the brand and the idea for Vita Coco was born. It quite literally was born on the beaches of Brazil," said Melissa Pallett-Vasquez, who defended Vita Coco with the help of Lori Lustrin, Raquel M. Fernandez, Jennifer Junger and Jerry Goldsmith of Bilzin Sumberg in Miami. Judge Scola ruled that the plaintiffs had not proved sufficient "injury" and therefore lacked standing. "AMI has not forced the plaintiff to buy Vita Coco," Judge Scola wrote. "If and when the plaintiffs choose to purchase Vita Coco in the future, they will do so with knowledge that the "born in Brazil" slogan does not reflect the location the beverage was manufactured in or sourced from." Judge Scola also noted that the plaintiffs didn't supply records or data of any other consumers of Vita Coco, or receipts of their own purchases that would have shown their experiences were "typical of the injuries suffered by other members" of the proposed class action. Richard I. Segal -- rich@segalzuckerman.com -- of Segal Zuckerman in Miami represented the plaintiffs with Philippe Lieberman and Steve I. Silverman of Kluger, Kaplan, Silverman, Katzen & Levine in Miami, neither of whom responded to requests for comment before deadline. According to Ms. Pallett-Vasquez, the premise of the lawsuit was "troubling" for Vita Coco. "The idea that somehow a product from Southeast Asia was 'less than' is absolutely and categorically not correct," she explained. "They are incredibly proud of the partnership that they have with their farmers in Southeast Asia. It's something they tout very proudly on their website. The suggestion that somehow the company was trying to hide that is just categorically false." Vita Coco containers no longer include the slogan due to a rebranding effort that the company said began before the lawsuit. "There was a move away from having a lot of wording on the packaging," Ms. Pallett-Vasquez said. She also noted that the company had complied with a federal regulation that dictates that country of origin must be clearly marked on packaging. The plaintiffs also alleged that Vita Coco had used the Brazil link to elevate its prices, and they "would not have paid as much for the product" if they'd known. "Because of this deception, AMI is able to sell Vita Coco at prices substantially higher than those of other coconut water brands that are manufactured in other parts of the world," the complaint said. But Ms. Pallett-Vasquez disputed that. "We know that that not only wasn't true before but it's not true today, because even in the absence of that statement on the packaging the pricing continues to be the same." The most "surprising" aspects of the case, she added, were "the factual positions" taken by the named plaintiffs. "In one of the depositions, a woman took everything that was on the package as absolute truth, including a catchy phrase that said, 'More potassium than a banana (don't tell the monkeys),' " Ms. Pallett-Vasquez said. "I inquired as to whether or not she thought that Vita Coco was asking her to talk to monkeys, or not to tell the monkeys, and she said, 'Yes, I do.'" [GN] ALLTRAN FINANCIAL: Judgment on Pleadings Bid in Taylor Denied ------------------------------------------------------------- In the case, EDWARD TAYLOR, Plaintiff, v. ALLTRAN FINANCIAL, LP, LVNV FUNDING, LLC, Defendants, Case No. 1:18-cv-00306-JMS-MJD (S.D. Ind.), Judge Jane Magnus-Stinson of the U.S. District Court for the Southern District of Indiana, Indianapolis Division, denied the Defendants' Motion for Judgment on the Pleadings. Taylor and a class of similarly situated people received a form debt collection letter from Defendant Alltran. On Feb. 1, 2018, they brought suit under the Fair Debt Collection Practices Act ("FDCPA"), contending that the letters are unclear as to whether Alltran was collecting on behalf of Defendant LVNV Funding, LLC or nonparty Springleaf Financial Services. Mr. Taylor brought suit on his own behalf and on behalf of a class of others who received the same debt collection letter, alleging that the letter fails to effectively identify the current creditor and therefore violates the FDCPA. On July 27, 2018, Defendants, Alltran and LVNV, filed their Motion for Judgment on the Pleadings. They argue that Mr. Taylor's FDCPA claim fails as a matter of law because the letter clearly identifies LVNV as the current creditor. They further argue that an unsophisticated consumer would realize that the letter was sent on behalf of LVNV because the "Privacy Notice" on the second page lists LVNV and does not include Springleaf. Judge Magnus-Stinson concludes that Mr. Taylor has plausibly alleged that the dunning letter he received from the Defendants failed to clearly identify LVNV as the creditor to whom his debt was owed. Rather, the unsophisticated consumer may read the letter and believe based upon the reference to the "judgment awarded on your Springleaf Financial Services Inc. account" that Springleaf, rather than LVNV, was the current creditor. The Defendants also gloss over dispositive differences between the cases they cite and the facts of the case. Mr. Taylor's allegations state a claim under the FDCPA. For these reasons, the Judge denied theDefendants' Motion for Judgment on the Pleadings. A full-text copy of the Court's Sept. 19, 2018 Entry is available at https://is.gd/M8J9l8 from Leagle.com. EDWARD TAYLOR, individually and on behalf of all others similarly situated, Plaintiff, represented by Angie K. Robertson , PHILIPPS AND PHILIPPS, LTD., Carissa Rasch -- carissa@philippslegal.com -- PHILIPPS AND PHILIPPS, LTD., David J. Philipps -- davephilipps@aol.com -- PHILIPPS AND PHILIPPS, LTD., John Thomas Steinkamp, JOHN T. STEINKAMP AND ASSOCIATES & Mary E. Philipps -- mephilipps@aol.com -- PHILIPPS AND PHILIPPS, LTD. ALLTRAN FINANCIAL, LP, a Texas limited partnership & LVNV FUNDING, LLC, a Delaware limited liability company, Defendants, represented by Daniel C. Fanaselle -- FANASELLED@BALLARDSPAHR.COM -- BALLARD SPAHR LLP & Kevin Dale Koons -- kkoons@kgrlaw.com -- KROGER GARDIS & REGAS LLP. ALNYLAM PHARMA: Pomerantz LLP Files Securities Fraud Suit --------------------------------------------------------- Pomerantz LLP on Sept. 26 disclosed that a class action lawsuit has been filed against Alnylam Pharmaceuticals, Inc. ("Alnylam" or the "Company") (NASDAQ: ALNY) and certain of its officers. The class action, filed in United States District Court, Southern District of New York, and index under 18-cv-08845, is on behalf of a class consisting of all persons other than Defendants who purchased or otherwise acquired Alnylam securities between February 22, 2017 and July 19, 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 Alnylam securities between February 22, 2017, and July 19, 2018, both dates inclusive, you have until November 26, 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. Alnylam is a global biopharmaceutical company developing therapeutics based on RNA interference ("RNAi"). RNAi is a naturally occurring biological pathway within cells for sequence-specific silencing and regulation of gene expression. Alnylam purports to harness the RNAi pathway to develop a potential new class of innovative medicines, known as RNAi therapeutics. RNAi therapeutics are comprised of small interfering RNA, or siRNA, and function upstream of today's medicines by potently silencing messenger RNA, or mRNA, that encode for disease-causing proteins, thus preventing them from being made. In December 2017, Alnylam submitted its first new drug application and marketing authorization application for Onpattro (patisiran) to the U.S. Food and Drug Administration ("FDA"). Patisiran is an intravenously administered RNAi therapeutic targeting transthyretin ("TTR") for the treatment of hereditary ATTR amyloidosis. It is designed to target and silence specific messenger RNA, potentially blocking the production of TTR protein before it is made. In August 2018, patisiran received FDA approval for the treatment of the polyneuropathy of hereditary transthyretin-mediated amyloidosis in adults, having been reviewed by the FDA under Priority Review and previously granted Breakthrough Therapy and Orphan Drug Designations. The complaint alleges that throughout the Class Period, Defendants made materially false and misleading statements regarding the Company's business, operational and compliance policies. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: (i) Alnylam overstated the efficacy and safety of its Onpattro (patisiran) lipid complex injection; and (ii) as a result, Alnylam's public statements were materially false and misleading at all relevant times. On September 12, 2018, Nomura/Instinet analyst Christopher Marai stated that a review document released by the FDA's Center for Drug Evaluation and Research "highlights greater risk" with respect to certain trials of Alnylam's ONPATTRO (patisiran) lipid complex injection, as well as "a limited market opportunity in TTRcardiomyopathy, and a potential platform safety risk." Specifically, Marair asserted that "[t]he document highlights FDA reviewers' concerns over cardiac deaths in patients treated with ONPATTRO and suggests that the drug should be limited to patients with polyneuropathy only (i.e., not patients with cardiac manifestations and polyneuropathy). Furthermore, we believe some comments on the lack of cardiac efficacy call into question claims made by [Alnylam] in this regard." On this news, Alnylam's stock price fell $5.60 per share, or over 5.5%, to close at $94.75 per share on September 12, 2018. With offices in New York, Chicago, Los Angeles, and Paris, The Pomerantz Firm -- http://www.pomerantzlaw.com-- concentrates its practice in the areas of corporate, securities, and antitrust class litigation. Founded by the late Abraham L. Pomerantz, known as the dean of the class action bar, the Pomerantz Firm pioneered the field of securities class actions. Today, more than 80 years later, the Pomerantz Firm continues in the tradition he established, fighting for the rights of the victims of securities fraud, breaches of fiduciary duty, and corporate misconduct. The Firm has recovered numerous multimillion-dollar damages awards on behalf of class members. [GN] ALPHA RECOVERY: Finell Suit Asserts FDCPA Violation --------------------------------------------------- A class action lawsuit has been filed against Alpha Recovery Corp. The case is styled as Debbie Finnell on behalf of herself and all others similarly situated, Plaintiff v. Alpha Recovery Corp., Defendant, Case No. 1:18-cv-05832-DLI-ST (E.D. N.Y., Oct. 18, 2018). The Plaintiff filed the case under the Fair Debt Collection Practices Act. Alpha Recovery Corp was established in 2010 as a full service Accounts Receivable Management (ARM) firm located in Greenwood Village, CO.[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 AMAZON.COM INC: Dismissal of Arizona Claims in Labor Suit Affirmed ------------------------------------------------------------------ In the cases, IN RE: AMAZON.COM, INC., FULFILLMENT CENTER FAIR LABOR STANDARDS ACT (FLSA) AND WAGE AND HOUR LITIGATION. JESSE BUSK; LAURIE CASTRO; SIERRA WILLIAMS; MONICA WILLIAMS; VERONICA HERNANDEZ, Plaintiffs-Appellants, v. INTEGRITY STAFFING SOLUTIONS, INC.; AMAZON.COM, INC., Defendants-Appellees, Case Nos. 17-5784, 17-5785 (6th Cir.), Judge Eric L. Clay of the U.S. Court of Appeals for the Sixth Circuit (i) reversed the district court's summary judgment with regard to the Nevada claims, and (ii) affirmed the district court's dismissal of the Plaintiffs' Arizona claims. The Plaintiffs in the purported class action seek compensation under Nevada and Arizona law for time spent undergoing or waiting to undergo mandatory onsite security screenings at the Amazon facilities where they worked. Integrity provides warehouse labor services to businesses throughout the United States where hourly workers fill orders, track merchandise, and process returns. It employs thousands of hourly warehouse employees like the Plaintiffs at each of Defendant Amazon's facilities. Some Plaintiffs in the case were hourly employees of Integrity at warehouses in Nevada and Arizona. Other Plaintiffs were directly employed by Amazon. According to the Plaintiffs, Amazon.com exercises direct control over the hours and other working conditions of all the Plaintiffs and all similarly-situated hourly shift employees who are paid on the payroll of Integrity working at all Amazon.Com's warehouse locations nationwide. The case concerns a security clearance policy that is enforced by both Integrity and Amazon at all Amazon locations throughout the United States. Under the policy, the Plaintiffs and all other hourly paid, non-exempt employees were required to undergo a daily security clearance check at the end of each shift to discover and/or deter employee theft of the employer's property and to reduce inventory shrinkage. The Plaintiffs allege that the Defendants' policy of requiring hourly warehouse employees to undergo a thorough security clearance before being released from work and permitted to leave the employer's property was solely for the benefit of the employers and their customers. They further allege that this screening process took approximately 25 minutes each day. They were also required to undergo the same security clearance prior to taking their lunch breaks, thereby reducing the full thirty-minute break they were supposed to receive. Because employees were required to "clock out" before undergoing the security screening, they were not compensated for their time spent waiting in line for and then undergoing the screenings. In 2010, the Plaintiffs filed a putative class action in the District Court of Nevada against Integrity on behalf of similarly situated employees in the Nevada warehouses for alleged violations of the Fair Labor Standards Act ("FLSA") and Nevada labor laws. The district court dismissed the Plaintiffs' first amended complaint for failure to state a claim, holding that the time spent waiting for and undergoing the security screenings was not compensable under the FLSA. The Plaintiffs appealed to the Ninth Circuit, which affirmed the dismissal of the meal-period claims but reversed as to the security-check claims. The case was then appealed to the Supreme Court, which held that the time related to the security checks was not compensable under the FLSA. Following the Supreme Court's reversal, the Ninth Circuit remanded the remainder of the Plaintiff's state law claims to the district court. The Plaintiffs again amended their complaint, and the case was then transferred to an ongoing multidistrict litigation in the Western District of Kentucky. Consistent with the Supreme Court's decision, the Plaintiffs' third amended complaint eliminates the claims for compensation under federal law and asserts claims under Nevada and Arizona law for unpaid wages and overtime, as well as minimum wage violations. The Plaintiffs asserted their claims as a class action under Rule 23 of the Federal Rules of Civil Procedure on behalf of the following persons: a. Nevada Class: All person employed by the Defendants, and/or each of them, as hourly paid warehouse employees who worked for the Defendant(s) within the State of Nevada at anytime within three years prior to the original filing date of the complaint in the action. b. Arizona Class: All person employed by the Defendants, and/or each of them, as hourly paid warehouse employees who worked for the Defendants within the State of Arizona at any time from within three years prior to the filing of the original complaint until the date of judgment after trial, and will encompass all claims by such persons for the entire tenure of their employment as provided in A.R.S. 23-364 (G). The Nevada Plaintiffs allege claims on behalf of themselves and the Nevada Class for failing to pay for all the hours worked, daily and weekly overtime, and a minimum wage claim under the Nevada Constitution. They seek continuation wages in the amount of 30-days of additional wages for failing to pay employees all their wages due and owing at the time of separation from employment. The Arizona Plaintiffs allege claims on behalf of themselves and the Arizona Class for failing to pay regular and minimum wages. These Plaintiffs also seek continuation wages under A.R.S. Section 23-353 et seq. The Defendants filed a motion to dismiss the claims, which the district court granted. The district court dismissed the Nevada claims on three grounds: first, there was no private right of action to assert claims under Nevada's wage-hour statutes; second, Nevada law incorporated the FLSA in relevant part and the Plaintiffs' Nevada state claims were barred by Nevada's incorporation of the Portal-to-Portal Act and the Supreme Court's decision in Busk; and third, the Plaintiffs' claims for minimum wages failed because they failed to identify any workweek in which they were paid less than the minimum wage. The district court concluded the same with respect to the Arizona claims, holding that Arizona impliedly adopted the Portal-to-Portal Act and thus the Plaintiffs have not demonstrated that they are entitled to compensation under Arizona law for time spent undergoing, or waiting to undergo, security screenings. It also concluded that Arizona minimum wage claims failed because the Plaintiffs had failed to identify a particular workweek in which they were paid less than the minimum wage. The Plaintiffs filed a timely notice of appeal. Because Judge Clay concluded that time spent undergoing mandatory security checks is compensable under Nevada law, he reversed the district court's judgment with regard to the Nevada claims and remanded for further proceedings. Because he concluded that the Arizona Plaintiffs have failed to satisfy Arizona's "workweek requirement," he affirmed the district court's dismissal of the Plaintiffs' Arizona claims. The Judge found that (i) the Nevada Plaintiffs do have a private cause of action for unpaid wages; (ii) because there is no reason to believe that the Nevada legislature intended to adopt the Portal-to-Portal Act, he's reluctant to infer an entirely unsupported legislative intent; and (iii) there is insufficient reason to hold that Nevada adopted the federal workweek requirement. A full-text copy of the Court's Sept. 19, 2018 Opinion is available at https://is.gd/ryeVDh from Leagle.com. ARGUED: Joshua D. Buck, THIERMAN BUCK LLP, Reno, Nevada, for Appellants. Rick D. Roskelley -- rroskelley@littler.com -- LITTLER MENDELSON, Las Vegas, Nevada, for Appellee Integrity Staffing Solutions. Richard G. Rosenblatt -- richard.rosenblatt@morganlewis.com -- MORGAN, LEWIS & BOCKIUS, LLP, Princeton, New Jersey, for Appellee Amazon.com. ON BRIEF: Joshua D. Buck , Mark R. Thierman, THIERMAN BUCK LLP, Reno, Nevada, for Appellants. Rick D. Roskelley, LITTLER MENDELSON, Las Vegas, Nevada, Cory G. Walker -- cgwalker@littler.com -- LITTLER MENDELSON, Phoenix, Arizona, for Appellee Integrity Staffing Solutions. Richard G. Rosenblatt, MORGAN, LEWIS & BOCKIUS, LLP, Princeton, New Jersey, for Appellee Amazon.com. AMCOR RIGID PLASTICS: Faces Cornejo Class Action in Illinois ------------------------------------------------------------ A class action lawsuit has been filed against Amcor Rigid Plastics USA, LLC. The case is styled as David Cornejo individually and on behalf of all others similarly situated, Plaintiff v. Amcor Rigid Plastics USA, LLC, Defendant, Case No. 1:18-cv-07018 (N.D. Ill., Oct. 19, 2018). Amcor Rigid Plastics USA, Inc. manufactures and delivers packaging solutions for beverages, food, pharmaceuticals, spirits, wine and beer, and personal and home care markets in the United States and Canada.[BN] The Plaintiff appears pro se. AMERICAN AIRLINES: Class Action Over Late Check-Ins Tossed ---------------------------------------------------------- David Matthews, writing for Law360, reports that an Illinois federal judge has struck down class action allegations over American Airlines' alleged unwritten policy of booting passengers who check in too close to their departure time. [GN] APPLE INC: Court Partly Grants Bid to Certify Class in Grace Suit ----------------------------------------------------------------- In the case, CHRISTINA GRACE, et al., Plaintiffs, v. APPLE, INC., Defendant, Case No. 17-CV-00551-LHK (N.D. Cal.), Judge Lucy H. Koh of the U.S. District Court for the Northern District of California, San Jose Division, (i) granted in part and denied in part the Plaintiffs' motion for class certification, and (ii) denied the Plaintiffs' motion to strike the report of Apple's technical expert. The Plaintiffs bring the putative class action against Apple for trespass to chattels and violation of California's Unfair Competition Law ("UCL") on Feb. 2, 2017. Grace sought to represent a class consisting of all owners of Apple iPhone 4 or Apple iPhone 4S devices in the United States who on April 16, 2014, had the iOS6 or earlier operating system on their iPhone 4 or iPhone 4S. The complaint alleged causes of action against Apple for (1) trespass to chattels, and (2) violations of the UCL, each based on Apple's intentional disabling of FaceTime on iOS 6 and earlier operating systems. On March 22, 2017, Apple moved to dismiss the complaint. According to Apple, Grace lacked standing under Article III and the UCL because Grace had no right to uninterrupted FaceTime service under the terms of Apple's Software License Agreement. Further, Apple argued that Grace lacked standing to bring claims based on the use of iPhone 4S, which Grace did not own, and that Grace lacked standing to raise issues relating to the upgrade to iOS 7, which Grace never alleged that she downloaded. In addition, it argued that Grace failed to state a claim for trespass to chattels or violations of the UCL. Rather than oppose Apple's motion to dismiss, Grace filed the FAC on April 5, 2017. The FAC added Potter as a named Plaintiff. Potter alleged that he upgraded to iOS 7 on one of his iPhone 4 devices, and that Potter experienced lost functionality as a result of his upgrade. Grace's amendment of the complaint on April 5, 2017 was an amendment as of right under Federal Rule of Civil Procedure 15(a)(1)(B) because Grace amended the complaint within 21 days of Apple's motion to dismiss the original complaint. Accordingly, on April 6, 2017, the Court denied as moot Apple's motion to dismiss the original complaint. On April 19, 2017, Apple filed a motion to dismiss the FAC, which largely raised the same arguments that Apple raised in its motion to dismiss the original complaint. On May 3, 2017, the Plaintiffs filed an opposition to Apple's motion to dismiss. On May 10, 2017, Apple filed a reply. On July 28, 2017, the Court denied Apple's motion to dismiss. It found that the Plaintiffs possessed Article III standing, that the Plaintiffs had stated claims for violation of the UCL's "unfair" prong and trespass to chattels, and that the Plaintiffs had adequately alleged entitlement to restitution and injunctive relief. On May 4, 2018, the Plaintiffs filed a motion for class certification. They seek to certify the nationwide class under Rule 23(b)(2) and Rule 23(b)(3). The class is defined as all owners of Apple iPhone 4 or Apple iPhone 4S devices in the United States who on April 16, 2014, had iOS 6 or earlier operating systems on their iPhone 4 or iPhone 4S devices. In the alternative, the Plaintiffs seek to certify a California class under Rule 23(b)(2) and Rule 23(b)(3). The class is defined as all owners of Apple iPhone 4 or Apple iPhone 4S devices in California who on April 16, 2014, had iOS 6 or earlier operating systems on their iPhone 4 or iPhone 4S devices. On June 15, 2018, Apple filed its opposition. On July 13, 2018, the Plaintiffs filed their reply. On July 19, 2018, the Plaintiffs filed a motion to strike the Declaration of Dr. Avi Rubin, Apple's technical expert. On Aug. 2, 2018, Apple filed its opposition. On Aug. 9, 2018, tje Plaintiffs filed their reply. On July 20, 2018, Apple filed objections to evidence submitted in connection with the Plaintiffs' reply. Apple opposes the Plaintiffs' motion for class certification on four main grounds. First, Apple argues that the Plaintiffs cannot demonstrate Rule 23(a)(3) typicality because the proposed class representatives' iPhone usage is not typical of the class. Second, Apple advances a series of challenges to Rule 23(b)(3) predominance. Third, Apple briefly argues that the Plaintiffs cannot demonstrate Rule 23(b)(3) superiority. Fourth, Apple argues that no Rule 23(b)(2) injunctive class can be certified. Judge Koh rejects Apple's Rule 23(a)(3) typicality argument. She also rejects most of Apple's Rule 23(b)(3) arguments. In particular, she finds that individual inquiries are not necessary for the Plaintiffs' trespass to chattels claim and the Plaintiffs' UCL claim, and the Judge rejects Apple's Comcast challenge to the Plaintiffs' damages model. However, she agrees with Apple that California's choice of law test precludes certification of a nationwide class, and agrees further that no Rule 23(b)(2) class is warranted. Finally, the Judge closes by denying the Plaintiffs' motion to strike the report of Apple's expert and rejecting Apple's evidentiary objections. For the foregoing reasons, Judge Koh granted in part and denied in part the Plaintiffs' motion for class certification. She certified the class seeking restitution and damages for violation of the UCL and trespass to chattels pursuant to Rule 23(b)(3) defined as all owners of non-jailbroken Apple iPhone 4 or Apple iPhone 4S devices in California who on April 16, 2014, had iOS 6 or earlier operating systems on their iPhone 4 or iPhone 4S devices. The Jduge appointed Ken Potter, only as to his 16 GB iPhone 4, and Grace as the representatives of the class. As Apple does not challenge the adequacy of proposed class counsel, she also appointed as the class counsel Jill M. Manning of Steyer Lowenthal Boodrookas Alvarez & Smith LLP, Daniel L. Warshaw of Pearson, Simon & Warshaw LLP, John Austin Curry of Caldwell Cassady & Curry LLP, and David F.E. Tejtel of Friedman Oster & Tejtel PLLC. A full-text copy of the Court's Sept. 18, 2018 Order is available at https://is.gd/2kKsTa from Leagle.com. Christina Grace, Plaintiff, represented by Alexander Lee Simon -- asimon@pswlaw.com -- Pearson Simon & Warshaw, LLP, Bradley Wayne Caldwell -- bcaldwell@caldwellcc.com -- Caldwell Cassady Currry P.C., pro hac vice, Bruce Lee Simon -- bsimon@pswlaw.com -- Pearson Simon & Warshaw, LLP, Christopher S. Stewart, Caldwell Cassady Curry, pro hac vice, Daniel Rollins Pearson, Caldwell Cassady and Curry, Daniel L. Warshaw -- dwarshaw@pswlaw.com -- Pearson, Simon & Warshaw, LLP, David F.E. Tejtel -- dtejtel@fotpllc.com -- Friedman Oster & Tejtel PLLC, Donald Scott Macrae -- smacrae@steyerlaw.com -- Steyer Lowenthal Boodrookas Alvarez & Smith LLP, Jason Dodd Cassady -- jcassady@caldwellcc.com -- Caldwell Cassady and Curry, pro hac vice, Jill Michelle Manning -- jmanning@steyerlaw.com -- Steyer Lowenthal Boodrookas Alvarez & Smith LLP, John Austin Curry -- acurry@caldwellcc.com -- Caldwell Cassady Curry P.C., pro hac vice, John Summers, Caldwell Cassady Curry, pro hac vice, Suneel Jain, Steyer Lowenthal, Warren Joseph McCarty, III, Caldwell Cassady Curry P.C. & Allan Steyer -- asteyer@steyerlaw.com -- Steyer Lowenthal Boodrookas Alvarez & Smith LLP. Ken Potter, Individually and on Behalf of All Others Similarly Situated, Plaintiff, represented by Alexander Lee Simon, Pearson Simon & Warshaw, LLP, Bruce Lee Simon, Pearson Simon & Warshaw, LLP, Daniel Rollins Pearson, Caldwell Cassady and Curry, Daniel L. Warshaw, Pearson, Simon & Warshaw, LLP, Donald Scott Macrae, Steyer Lowenthal Boodrookas Alvarez & Smith LLP, Jill Michelle Manning, Steyer Lowenthal Boodrookas Alvarez & Smith LLP, Suneel Jain, Steyer Lowenthal, Warren Joseph McCarty, III, Caldwell Cassady Curry P.C. & Allan Steyer, Steyer Lowenthal Boodrookas Alvarez & Smith LLP. Apple, Inc., Defendant, represented by Robert Alexander Pilmer -- alexander.pilmer@kirkland.com -- Kirkland & Ellis LLP, Ashley Elizabeth Neglia -- ashley.neglia@kirkland.com -- Kirkland and Ellis LLP, Eugene Novikov -- enovikov@durietangri.com -- Durie Tangri LLP, Jacob Johnston -- jacob.johnston@kirkland.com -- Kirkland Ellis LLP, Joseph Allen Loy -- joseph.loy@kirkland.com -- Kirkland & Ellis LLP, pro hac vice, Joshua H. Lerner -- jlerner@durietangri.com -- Durie Tangri LLP, Sonal N. Mehta -- smehta@durietangri.com -- Durie Tangri LLP, Stephen J. Elkind, Durie Tangri LLP, pro hac vice & Tanya Louise Greene -- tanya.greene@kirkland.com -- Kirkland and Ellis LLP. BrightStar Corporation, Non-Party, Miscellaneous, represented by Joseph M. Wahl -- Joseph.Wahl@btlaw.com -- Barnes and Thornburg LLP. Akamai Technologies, Inc., Miscellaneous, represented by James L. Day -- jday@fbm.com -- Farella Braun Martel. APPLIED OPTOELECTRONICS: Nov. 30 Lead Plaintiff Bid Deadline ------------------------------------------------------------ The law firm of Kessler Topaz Meltzer & Check, LLP, disclosed that a securities fraud class action lawsuit has been filed in the United States District Court for the Southern District of Texas (Houston Division) against Applied Optoelectronics, Inc. (Nasdaq: AAOI) ("Applied Optoelectronics") on behalf of purchasers of Applied Optoelectronics securities between August 7, 2018 and September 27, 2018, inclusive (the "Class Period"). Important Deadline: Investors who purchased Applied Optoelectronics securities during the Class Period may, no later than November 30, 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/applied-optoelectronics-securities-class-action According to the complaint, Applied Optoelectronics purports to design and to manufacture fiber-optic networking products, primarily for four networking end-markets: internet data center, cable television, telecommunications, and fiber-to-the-home. The Class Period commences on August 7, 2018, when Applied Optoelectronics published a press release announcing the second quarter 2018 financial results. The complaint alleges that, on September 27, 2018, an analyst with Loop Capital Markets downgraded Applied Optoelectronics stock, reporting that the company was experiencing product quality issues with certain transceivers in which its lasers fail after thousands of hours of operation. The analyst also lowered gross margin and revenue expectations because the product quality issues suggested that Applied Optoelectronics would start procuring lasers externally through 2019. Following this news, Applied Optoelectronics' share price fell $2.98 per share, more than 9%, to close at $28.36 per share on September 27, 2018. Then, on September 28, 2018, Applied Optoelectronics cut its revenue guidance for the third quarter 2018 because it had identified an issue with its lasers that caused them to temporarily suspend shipments of certain transceivers. Following this news, Applied Optoelectronics' share price fell $3.70 per share, more than 13%, to close at $24.66 per share on September 28, 2018, on unusually high trading volume. The complaint alleges that throughout the Class Period, the defendants failed to disclose to investors that: (1) certain of Applied Optoelectronics' lasers were susceptible to fail prematurely; (2) certain of Applied Optoelectronics' transceivers utilizing these lasers would be materially affected; and (3) as a result of the foregoing, the defendants' positive statements about the company's business, operations, and prospects, were materially misleading and/or lacked a reasonable basis. If you wish to discuss this securities fraud class action or have any questions concerning this notice or your rights or interests with respect to these matters, please contact Kessler Topaz Meltzer & Check (James Maro, Jr., Esq. or Adrienne Bell, Esq.) at (888) 299–7706 or (610) 667–7706, or via e-mail at info@ktmc.com. Applied Optoelectronics investors may, no later than November 30, 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. Kessler Topaz Meltzer & Check -- http://www.ktmc.com-- prosecutes class actions in state and federal courts throughout the country involving securities fraud, breaches of fiduciary duties and other violations of state and federal law. Kessler Topaz Meltzer & Check is a driving force behind corporate governance reform, and has recovered billions of dollars on behalf of institutional and individual investors from the United States and around the world. The firm represents investors, consumers and whistleblowers (private citizens who report fraudulent practices against the government and share in the recovery of government dollars). The complaint in this action was not filed by Kessler Topaz Meltzer & Check. [GN] ASSET RECOVERY: Amelchenko Suit Asserts FDCPA Violation ------------------------------------------------------- Asset Recovery Solutions, LLC is a facing a class action lawsuit in New York under the Fair Debt Collection Practices Act. The case is captioned Yuriy Amelchenko on behalf of himself and all others similarly situated, Plaintiff v. Asset Recovery Solutions, LLC, Defendant, Case No. 1:18-cv-05864-DLI-SMG (E.D. N.Y., Oct. 19, 2018). Asset Recovery Solutions, LLC is a debt collection agency located in Des Plaines , Illinois.[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 AT&T: Judge Tosses Class Action Over Coaxial Cable Contamination ---------------------------------------------------------------- Mark Curriden, writing for Dallas Business Journal, reports that a federal judge in Houston has refused to grant class action certification to a lawsuit claiming that hundreds of property owners between Dallas and Houston were contaminated by 200 miles of coaxial cable buried 70 years ago by AT&T (NYSE: T). U.S. District Judge Alfred H. Bennett ruled on Sept. 25 that the lawsuit filed by prominent Houston trial attorney Tony Buzbee against the Dallas-based telecomm giant lacked "commonality" of issues and damages and does not qualify for class action status. The lawsuit, Kenneth Cook, et al, v. AT&T Corp., claims that the coaxial cable that AT&T placed underground "is deteriorating and leaking lead and copper onto plaintiffs' properties." The suit says the cable is polluting the property. Buzbee sought to have the class action case to include all people and companies owning property between Houston and Dallas with the AT&T cable under its ground. He sought $35 million in damages.In an 11-page decision, Judge Bennett found that the questions of law and fact -- such as whether individual properties have actually been contaminated -- were not common enough among the hundreds of potential members of the proposed class. "Highly individualized issues of both causation and damages that predominate over common issues make class certification inappropriate," Judge Bennett wrote. "Class action is not the proper vehicle to resolve this case." AT&T is represented in the case by Haynes and Boone partner Thad Behrens -- thad.behrens@haynesboone.com -- of Dallas. Mark Trachtenberg, a partner in the Houston office of Haynes and Boone, and associates Michelle Jacobs and Billy Marsh -- william.marsh@haynesboone.com -- also worked on the matter for AT&T. David McAtee, AT&T's general counsel, is a former partner at Haynes and Boone. This is AT&T's third big courtroom victory in the past four months. In August, a federal judge dismissed most of the Federal Trade Commission's $4 billion false advertising case against AT&T. In June, a federal judge in Washington, D.C. rejected the U.S. Justice Department's antitrust case seeking to block AT&T's acquisition of Time Warner. [GN] BEACON HOTEL: Breeze Files Civil Rights Class Suit -------------------------------------------------- Byron Breeze, Jr. filed a civil rights class action lawsuit against Beacon Hotel L.L.C. in New York. The case is styled as Byron Breeze, Jr. on behalf of himself, and all similarly situated individuals, Plaintiff v. Beacon Hotel L.L.C. a New York limited liability company, Defendant, Case No. 1:18-cv-09615 (S.D. N.Y., Oct. 19, 2018). Located at the corner of Broadway and W 75th, Beacon Hotel is the jewel of the Upper West Side. It's one of the few remaining residential hotels, and one of the few places in Manhattan where you can find spacious rooms and numerous two-bedroom suites.[BN] The Plaintiff is represented by: Erik Mathew Bashian, Esq. Bashian & Papantoniou, P.C 500 Old Country Road, Suite 302 Garden City, NY 11530 Phone: (516) 279-1555 Fax: (516) 213-0339 Email: eb@bashpaplaw.com BLUE LINE: Seeks Dismissal of Speed Camera Ticket Class Action -------------------------------------------------------------- Samantha Phillips, writing for The Vindicator, reports that Blue Line Solutions, a Tennessee-based speed camera operation company, contends it should not be included in a class-action lawsuit regarding drivers who, an attorney alleges, were wrongfully issued speed camera tickets. The company argued in Trumbull County Common Pleas Court in a motion to dismiss the lawsuit that the city issued the speed camera tickets, not BLS, so the company should be dropped from the complaint. The litigation against the city and BLS revolves around the contested speed limit on a portion of Interstate 80 between Dec. 7, 2017, and Jan. 8, 2018, after construction ended. The city still enforced the temporary lower speed limit. The class-action suit was filed by Atty. Marc Dann on behalf of drivers he maintains shouldn't have been ticketed for abiding by the normal speed limit. Mr. Dann said communities are cash-starved because of the state cutting local government funds, and turn to methods such as speed cameras to supplement the lost revenue. "This is about enriching people in Tennessee," he said. "The state of Ohio has failed to properly fund local governments . . . I understand why Girard needs the money, but I think the people should be really skeptical of a for-profit company exploiting that problem and taking 40 to 50 percent of the profits." Copies of the traffic tickets that were issued to the drivers involved in the lawsuit prove fines were issued by Girard, the court document says, and the fines were paid to the city. The citations have Girard's address on them. The company used that argument in attempt to disparage Mr. Dann and the drivers' claims in the lawsuit. Mr. Dann disagrees with the company's assertions. He said Blue Line, which supplies the speed cameras, is responsible for sending tickets to drivers, and receives payments directly from drivers. The Vindicator's calls to Blue Line Solutions were not returned on Sept. 25. The motion was filed by Robert Yallech with Youngstown-based Reminger Co., serving as legal counsel for the company. The Vindicator's calls to Mr. Yallech were not returned. The city's motion to dismiss in August was at odds over the claims made by drivers, including that their due process rights had been violated. Robert Cahill -- rcahill@sutter-law.com -- an attorney with Sutter O' Connell Co. who is representing the city, had no comment about the litigation. [GN] BRISTOL-MYERS: Barnes & Thornburg Attorneys Discuss Ruling ---------------------------------------------------------- Christine E. Skoczylas, Esq. and Amy R. Michelau, Esq., of Barnes & Thornburg LLP, in an article for The National Law Review, report that whether a non-resident defendant may be hauled into court to defend itself against non-resident plaintiffs who have no connection to the forum can have enormous implications, whether tactical, financial, or otherwise. Last year, in Bristol Myers-Squibb Co. v. Superior Court (BMS), the U.S. Supreme Court addressed the issue of whether a state court may exercise personal jurisdiction over non-resident defendants in a mass tort action. 137 S. Ct. 1773 (2017). In BMS, a group of mostly non-resident plaintiffs brought product liability claims in California state court against BMS, a non-resident defendant, relating to Plavix, a blood-thinning drug manufactured by BMS. The non-resident plaintiffs did not purchase or use Plavix in California, and BMS's only connection to the state was that it sold Plavix in California. The California Supreme Court found that it had "case-linked" specific personal jurisdiction over the non-resident plaintiffs' claims because they mirrored the claims brought by the California plaintiffs. The U.S. Supreme Court disagreed, holding that continuous activity in a state, alone, does not create jurisdiction; instead, there must be a link between the forum and the individual lawsuit for a court to assert jurisdiction over a non-resident defendant. The BMS decision provides clear guidance for mass tort actions involving non-resident plaintiffs. The U.S. Supreme Court, however, declined to address whether the BMS holding extends to class actions. Indeed, in her dissent, Justice Sonia Sotomayor noted that whether the BMS decision "[w]ould also apply to a class action in which a plaintiff injured in the forum State seeks to represent a nationwide class of plaintiffs" remained an open question. 137 S. Ct. at 1789 n.4 (Sotomayor, J., dissenting). Unsurprisingly, following BMS, there has been discord among lower federal courts regarding the application of the BMS holding to class action claims. Despite the split in authority, thus far, the District Courts that have extended the BMS holding to class action claims outnumber the District Courts that have declined to do so. Those courts applying the BMS holding have refused to exercise personal jurisdiction over the claims of unnamed, non-resident class members against non-resident defendants. The U.S. District Court for the Northern District of Illinois has been leading the charge. For example, in January 2018, the DeBernardis court held that it is more likely than not that courts will apply BMS to "outlaw nationwide class actions" in forums in which general jurisdiction does not exist over foreign defendants. DeBernardis v. NBTY, Inc., No. 17 C 6125, 2018 WL 461228 (N.D. Ill. Jan. 18, 2018). In fact, federal courts in Illinois have consistently held that BMS prevents federal courts from exercising specific jurisdiction over non-resident class members whose claims have no connection to the forum state. See, e.g., Am.'s Health & Res. Ctr., Ltd. v. Promologics, Inc., No. 16 C 9281, 2018 WL 3474444 (N.D. Ill. July 19, 2018); Al Haj v. Pfizer Inc., No. 17 C 6730, 2018 WL 1784126 (N.D. Ill. April 13, 2018); Practice Mgmt. Support Servs., Inc. v. Cirque du Soleil, Inc., 301 F. Supp. 3d 840 (N.D. Ill. 2018); LDGP, LLC v. Cynosure, Inc., No. 15 C 50148, 2018 WL 439122 (N.D. Ill. Jan. 16, 2018); McDonnell v. Nature's Way Prods., LLC, No. 16 C 5011, 2017 WL 4864910 (N.D. Ill. Oct. 26, 2017). Federal courts in various other jurisdictions have also rejected arguments that personal jurisdiction requirements should be relaxed in the class action context. See, e.g., In re Dental Supplies Antitrust Litig., No. 16 Civ. 696, 2017 WL 4217115 (E.D.N.Y. Sept. 20, 2017); Spratley v. FCA US LLC, No. 3:17-CV-0062, 2017 WL 4023348 (N.D.N.Y. Sept. 12, 2017); Maclin v. Reliable Reports of Texas, Inc., No. 1:17-CV-2612, 2018 WL 1468821 (N.D. Ohio Mar. 26, 2018); Wenokur v. AXA Equitable Life Ins. Co., No. CV-17-165, 2017 WL 4357916 (D. Ariz. Oct. 2, 2017). Other federal District Courts, relying upon a panoply of justifications and led by the U.S. Court of Appeals for the Ninth Circuit and other California federal courts, have declined to extend BMS to nationwide class actions. In Fitzhenry-Russell, for example, the U.S. District Court for the Northern District of California held that absent class members are not parties, or fully "present," for purposes of personal jurisdiction evaluation and, thus, need not be considered. Fitzhenry-Russel v. Dr. Pepper Snapple Group, Inc., No. 17-cv-00564, 2017 WL 4224723 (N.D. Cal. Sept. 22, 2017). The same court later held that BMS did not require the dismissal of claims by non-resident plaintiffs who did not have a case-specific connection to the forum, relying upon the conclusion that the federalism rationale outlined in BMS applies only to state court cases. Sloan v. General Motors, LLC, 287 F. Supp. 3d 840 (N.D. Cal. 2018). In In re Chinese-Manufactured Drywall Products, the U.S. District Court for the Eastern District of Louisiana held that procedural differences between mass actions and class actions rendered BMS inapplicable to class actions. See In re Chinese-Manufactured Drywall Prod. Liab. Litig., No. MDL 09-2047, 2017 WL 5971622 (E.D. La. Nov. 30, 2017). These justifications, however, seem to ignore the underlying question of whether a defendant's due process rights are implicated by the claims of absent class members. Other district courts have been reluctant to address the question in similar actions, perhaps waiting until the various appeals courts further consider the issue. We anticipate that the case law surrounding application of the BMS decision to class action claims will continue to evolve. At first blush, the post-BMS trends observed in the District Courts should be encouraging to companies conducting business across the country and seeking to evade nationwide class actions claims brought in plaintiff-friendly forums. However, the BMS decision may ultimately result in a decrease in the consolidation of claims, prompting more plaintiffs to bring numerous state-specific class action cases and resulting in a multiplication of cases that a defendant may be forced to litigate. Either way, the inconsistency in the application of BMS by the federal courts creates uncertainty for defendants and creates a dangerous opportunity for forum-shopping plaintiffs. We will continue to monitor the shifting landscape in order to evaluate the evolving implications of BMS in the class action context. [GN] BURGERVILLE: Faces Class Action Over Cybersecurity Breach --------------------------------------------------------- Molly Solomon, writing for OPV, reports that Burgerville says it has discovered a "sophisticated" cybersecurity breach that may have affected customers who paid with a credit card at any restaurant location in the last year. Shortly after the company announced the breach on Oct. 3, a customer sought a class-action lawsuit against Burgerville. The Vancouver, Washington-based burger chain is urging all customers who used a debit or charge card between September 2017 to September 2018 to review their statements for suspicious activity. Compromised customer information could include names, card numbers, expiration dates and the CVV numbers on the back of most cards. It's not clear exactly how many customers could have had their data compromised, according to a Burgerville spokesperson. "The tactics of this particular group of hackers make it very difficult to know exactly how many people were directly affected and exactly which card numbers were stolen. They are adept at concealing their digital footprints," spokesperson Chris Crabb wrote in an email to OPB. The group behind the attack is called Fin7, a cyber-crime ring out of Eastern Europe that has attacked more than 100 U.S. companies. The U.S. Justice Department arrested three members of Fin7 in August. The group is believed to have stolen more than 15 million customer card records in 47 states and has been linked to other major hacks at Chipotle, Arby's and other restaurants. In a news release, Burgerville said it first learned of the breach from the FBI on Aug. 22. The company agreed to keep the hack from the public so the FBI could fully investigate, Mr. Crabb said. "Burgerville agreed to maintain the confidentiality of the breach as part of an active law enforcement investigation," she explained. "Though this investigation, Burgerville was able to provide valuable evidence to the FBI." That investigation revealed what was originally believed to be a brief intrusion by hackers was actually still active. On Sept. 19, Burgerville began removing the malware from its payment system. The company said it finished removing malware from its system Sept. 30. Mr. Crabb said the company did not let the public know because hackers could have created a backdoor into Burgerville's system if they had known the problem was being addressed. Within hours of the hack being announced, Oregon resident Cassandra Nelson filed a class-action complaint in Multnomah County court. The complaint alleges that Ms. Nelson had her financial card information compromised by Burgerville after purchasing food at various restaurants around the Portland metro area. It also alleges that the restaurant "collected and stored credit and debit card information" from Nelson at its sale systems. "In an attempt to increase profits, Burgerville negligently failed to maintain adequate technological safeguards to protect plaintiff's information from unauthorized access by hackers," Nelson's complaint states. The complaint also alleges that Burgerville violated Oregon law by not informing customers as soon as it learned about the hack. Nelson is seeking monetary damages and a full accounting of how hackers gained access to customer information. "We realize that this intrusion was not only on Burgerville's system, but also on your life. This isn't what you expected to happen when you came to visit one of our locations," wrote interim Burgerville CEO Jill Taylor in a statement about the attack on the restaurant's website. The company is advising people who may have been impacted to obtain a copy of their credit report and consider freezing their credit out of an "abundance of caution." A customer support line has been set up at 1-855-336-6688. [GN] CANADA: Ex-Inmates File Class Action Over Solitary Confinement -------------------------------------------------------------- CBC News reports that around-the-clock electric light, even at night. Mats on the floor in place of beds. Robes instead of clothing. These are some of the conditions that former inmates say exist in solitary confinement at Nova Scotia's jails, conditions that have prompted them to file a proposed class-action lawsuit against the province. The claim alleges that the use of solitary confinement for more than 15 days at a time constitutes cruel and unusual punishment, breaching the Charter of Rights and Freedoms. "They never turn the lights off, and so there's no windows, you never see the outside, you never go to yard, you never get a breath of fresh air," Robert Bailey, one of two plaintiffs involved in the class action, told CBC's Information Morning. "It changes you." 'You lose track of time' Mr. Bailey, who has been incarcerated in provincial institutions at different points for charges including breach of conditions, said he was first placed in solitary confinement at the Burnside jail because he was found in possession of a controlled substance. Every subsequent time he went back to jail, he said he was put in solitary confinement. The nature of solitary confinement makes it difficult to say how long he spent there, he said. "You lose track of time," he said. "I [went] into a different state of mind." Mr. Bailey said he was placed in solitary confinement without anything to occupy his mind, such as a pencil or book, and was given a robe designed to prevent a suicide attempt, instead of his own clothes. "[You're] completely left with nothing and ridiculed." Department policies violate charter Michael Dull, the lawyer for the proposed class action, said the focus on the case is to shine a light on what's happening in Nova Scotia's jails -- including the way that practices around the use of solitary confinement constitute torture, according to the U.N.'s definition of confinement exceeding 15 days. Nova Scotia's Correctional Services division does have policies dictating the allowable limits for some kinds of solitary confinement. A report in May by Auditor General Michael Pickup found that in nine of 47 cases, offenders were placed in solitary confinement longer than allowed by department policy. Nova Scotia puts hundreds of inmates in segregation each year But Dull said that since "administrative segregation" -- solitary confinement that's not for disciplinary purposes -- can be extended indefinitely, even the allowable limit for the use of solitary confinement violates the charter. "Corrections has a policy that the auditor general found is not being met, so that speaks to negligence," said Dull. "But if the policy in and of itself is in breach of the charter -- then the policy should be changed." Solitary confinement counterproductive Mr. Bailey said at the moment, the way solitary confinement is being used is putting inmates' well-being at risk. "People that I've met, you know, at one time and then talked to them three months later, after they've been [in solitary confinement], they're not the same person." "If there's no threat to anyone, and no violence, I don't believe putting [offenders] in such a severe, traumatizing situation is going to help them in any way." In May, the Department of Justice agreed to all 12 recommendations made by Pickup. As part of that, Nova Scotia's Office of the Ombudsman was to do regular review and audits to make sure the use of "close confinement" is properly approved and that inmates have access to recreation and showers. In a statement, Justice spokesperson Heather Fairbairn said "close confinement is a measure of last resort. It is utilized in situations that protect inmates and staff." She said once the province is served with the legal action it will consider what to do next. [GN] CATHOLIC GUARDIAN: Fernandez Class Has Conditional Certification ---------------------------------------------------------------- In the case, THANIA FERNANDEZ, individually, and on behalf of all others similarly situated, Plaintiff, v. CATHOLIC GUARDIAN SERVICES, CRAIG LONGLEY, individually, GRACE POPPE, individually, and DOLORES ORTIZ, individually, Defendants, Case No. 17 Civ. 03161 (ER) (S.D. N.Y.), Judge Edgardo Ramos of the U.S. District Court for the Southern District of New York granted the Plaintiff's Motion for Conditional Certification and Leave to Distribute Notice Pursuant to 29 U.S.C. Section 216(b). Fernandez brings the putative collective action on behalf of all similarly situated employees against the Defendants, alleging failure to pay overtime in violation of the Fair Labor Standards Act ("FLSA"). The Plaintiff also alleges violations of New York Labor Law ("NYLL"). From July 2007 until May 2014, the Defendants employed the Plaintiff as a foster care case planner. The Plaintiff alleges that, as a case planner, she worked 48 hours a week at least one week a month between April 2011 and May 2014 and did not receive overtime pay. In May 2014, the Plaintiff became a case manager. As was true when she was a case planner, the Plaintiff also worked 48 hours a week at least one week a month between May 2014 and December 2016 and did not receive overtime pay. From 2014 and 2016, Plaintiff also responded to emergencies after hours. On April 28, 2017, the Plaintiff commenced the instant FLSA collective action, seeking to vindicate her rights and those of similarly situated employees. Between March 2017 and June 2018, 14 people, including the Plaintiff, signed the Plaintiff consent forms. Of the 14 people who signed the Plaintiff consent forms, four submitted declarations to describe their employment in more detail. According to their declarations, all four declarants, including the laintiff, worked as case managers with the same duties, hours, and compensation scheme that did not provide for overtime pay. Two of the declarants, Plaintiff and Jissette A. Vargas, also had worked as case planners with the same duties, hours, and compensation system that did not include overtime wages. On Aug. 30, 2017, the Plaintiffs moved for (a) a conditional certification of an FLSA collective action composed of all current and former foster care case planners and case managers employed by the Defendants from April 28, 2011 until the present; (b) an order requiring the Defendants to provide the Plaintiff with information about potential class members; and (c) an order granting the Plaintiff leave to disseminate notice to potential class members. Among other things, the Defendants claim that the Court should not grant the Plaintiff's motion because the FLSA does not cover either the Plaintiff or the Defendants. Judge Ramos finds that he does not regard the argument as convincing at this stage in the proceedings. The Court only examines the pleadings and affidavits to determine whether the named Plaintiffs and putative class members are similarly situated. The Defendants also argue that the Court should stay the Motion for Conditional Class Certification until the parties have complete[d] limited and/or expedited discovery as to FLSA coverage and the professional exemption. The Judge declines this invitation because it misconstrues the collective action certification process in the FLSA context. Next, the Defendants ask the Court to order the Plaintiff to remove the references to the NYLL in the proposed notice because the Plaintiff seeks a conditional collective action certification pursuant to FLSA's collective action provision, and because that provision can only combine FLSA claims. The Judge agrees, as other courts have as well. Accordingly, the Proposed Notice and Consent must be revised to remove the references to the NYLL. As a result, the Plaintiff should remove references to New York law on pages 2, 3, and 4 of the notice. If the Plaintiff wishes to create a class action of related state claims, she may move for a Rule 23 class action in accordance with the Rules. The Defendants assert that the Court may not conditionally certify a collective action dating back six years even though Plaintiff has brought claims under both FLSA and NYLL before the Court. However, three years is the maximum time period to join FLSA collective actions, and no New York state class action has been certified. The Defendants write that the Plaintiffs' request for e-mail addresses and cell/text numbers is overly broad. The Judge disagrees. He holds that courts in the District commonly grant requests for the production of names, mailing addresses, email addresses, telephone numbers, and dates of employment in connection with the conditional certification of an FLSA collective action. He will therefore grant the Plaintiff's request for the email addresses and cellular telephone numbers of potential collective action members. For the foregoing reasons, Judge Ramos granted the Plaintiff's request for conditional certification of her FLSA collective action and approves the notice, as set forth. The Clerk of Court is respectfully directed to terminate the motion. A full-text copy of the Court's Sept. 19, 2018 Opinion and Order is available at https://is.gd/AHaZKI from Leagle.com. Thania Fernandez, on behalf of herself, Plaintiff, represented by Alexander Todd Coleman -- atc@employmentlawyernewyork.com -- Law Offices of Borrelli & Associates, Jeffrey Robert Maguire -- jrm@employmentlawyernewyork.com -- Borelli & Associates P.L.L.C. & Michael John Borrelli -- mjb@employmentlawyernewyork.com -- Law Offices of Borrelli & Associates. Thania Fernandez, On behalf of all others similarly situated, Plaintiff, represented by Jeffrey Robert Maguire, Borelli & Associates P.L.L.C. Catholic Guardian Services, formerly known as, Craig Longley, individually, Grace Poppe, individually & Dolorez Ortiz, individually, Defendants, represented by Joseph Blaise Cartafalsa -- joseph.cartafalsa@ogletree.com -- Ogletree Deakins. CHEGG INC: Kaskela Law Files Class Action Lawsuit ------------------------------------------------- Kaskela Law LLC disclosed that an investor class action lawsuit has been filed against Chegg, Inc. (NYSE: CHGG) ("Chegg" or the "Company") on behalf of purchasers of the Company’s securities between July 30, 2018 and September 25, 2018, inclusive (the "Class Period"). IMPORTANT DEADLINE: Investors who purchased Chegg’s securities during the Class Period and suffered a financial loss may, no later than November 26, 2018, seek to be appointed as a lead plaintiff representative of the investor class. Chegg investors with financial losses in excess of $50,000 are encouraged to contact Kaskela Law LLC (D. Seamus Kaskela, Esq.) at (888) 715-1740, or via email at skaskela@kaskelalaw.com, to discuss this action and their legal rights and options. For additional information or to learn how to participate in this action please visit http://kaskelalaw.com/case/chegg/. Chegg is a direct-to-student learning platform that provides educational materials and services to high school and college students. On September 25, 2018, the Company reported that an unauthorized party had gained access on or around April 29, 2018 to approximately 40 million users' data, including username, email address, shipping address, and hashed Chegg password. On this news, the Company’s share price fell $3.91, or approximately 12%, to close at $28.42 per share on September 26, 2018, on unusually heavy trading volume. The investor class action complaint alleges that defendants violated the federal securities laws during the Class Period by making false and misleading statements and failing to disclose to investors that: (i) the Company lacked adequate security measures to protect users’ data; (ii) the Company lacked the internal controls and procedures to detect unauthorized access to its systems and to its data; and (iii) at as a result, the Company would incur additional expenses and litigation risks. The complaint further alleges that, as a result of the foregoing, investors purchased Chegg’s securities at artificially inflated values during the Class Period, and have suffered financial damages as a result of defendants’ actions. Chegg investors with financial losses in excess of $50,000 are encouraged to contact Kaskela Law LLC to discuss this action and their legal rights and options. Kaskela Law LLC exclusively represents investors in state and federal courts throughout the country. For additional information about Kaskela Law LLC please contact: D. Seamus Kaskela, Esq. KASKELA LAW LLC 201 King of Prussia Road Suite 650 Radnor, PA 19087 Telephone: (484) 258-1585 (888) 715-1740 Email: skaskela@kaskelalaw.com [GN] CHEGG INC: Kirby McInerney Files Securities Class Action Lawsuit ---------------------------------------------------------------- The law firm of Kirby McInerney LLP disclosed that a class action lawsuit has been filed in the U.S. District Court for the Northern District of California on behalf of all persons or entities who purchased or otherwise acquire Chegg, Inc. ("Chegg" or the "Company") (NYSE:CHGG) securities between July 30, 2018 and September 25, 2018 (the "Class Period"). Investors have until November 26, 2018 to apply to the Court to be appointed as lead plaintiff in the lawsuit. The lawsuit alleges that 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 could have been obtained and that an investigation into the incident was ongoing. On this news, the price of Chegg shares fell $3.91, or over 12%, to close at $28.42 on September 26, 2018. If you purchased or otherwise acquired Chegg securities during the Class Period, have information, or would like to learn more about these claims, please contact Thomas W. Elrod of Kirby McInerney LLP at 212-371-6600, by email at investigations@kmllp.com, or by filling out this contact form, to discuss your rights or interests with respect to these matters without any cost to you. Thomas W. Elrod, Esq. Kirby McInerney LLP Telephone: 212-371-6600 Website: www.kmllp.com Email: investigations@kmllp.com [GN] CHEGG INC: Rigrodsky & Long Files Securities Fraud Class Suit ------------------------------------------------------------- Rigrodsky & Long, P.A., disclosed that a complaint has been filed in the United States District Court for the Northern District of California on behalf of all persons or entities that purchased the common stock of Chegg, Inc. (Chegg or the Company) (NYSE: CHGG) between July 30, 2018 and September 25, 2018, inclusive (the Class Period), alleging violations of the Securities Exchange Act of 1934 against the Company and certain of its officers (the Complaint). If you purchased shares of Chegg during the Class Period, or purchased shares prior to the Class Period and still hold Chegg, and wish to discuss this action or have any questions concerning this notice or your rights or interests, please contact Seth D. Rigrodsky or Timothy J. MacFall at Rigrodsky & Long, P.A., 300 Delaware Avenue, Suite 1220, Wilmington, Delaware 19801, by telephone at (888) 969-4242, or by e-mail at info@rl-legal.com. The Complaint alleges that throughout the Class Period, defendants made materially false and misleading statements, and omitted materially adverse facts, about the Company's business, operations and prospects. Specifically, the Complaint alleges that the defendants concealed from the investing public that: (1) the Company lacked adequate security measures to protect users data; (2) the Company lacked the internal controls and procedures to detect unauthorized access to its systems and to its data; (3) as a result, the Company would incur additional expenses and litigation risks; and (4) 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.. As a result of defendants alleged false and misleading statements, the Company's stock traded at artificially inflated prices during the Class Period. According to the Complaint, 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 declined over 12%, closing at $28.42 per share on September 26, 2018, on heavy trading volume. If you wish to serve as lead plaintiff, you must move the Court no later than November 26, 2018. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. Any member of the proposed 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. [GN] CHICKEN OF THE SEA: Faces Class Action Over Tuna Price-Fixing ------------------------------------------------------------- Stephanie Ritenbaugh, writing for Pittsburgh Post-Gazette, reports that dozens of grocers, wholesalers, restaurants and other businesses across the country are seeking to create three separate class-action certifications in the lengthy legal fight with the "big three" tuna companies, alleging that they have been overcharged for canned and packaged seafood. Lawyers for Chicken of the Sea and Bumble Bee Foods argued that the plaintiffs shouldn't get that green light. It's the latest round in an ongoing court battle alleging price fixing in the tuna industry. Pittsburgh-based StarKist Co, which is owned by South Korea's Dongwon, is accused of colluding with Bumble Bee Foods and Tri-Union Seafoods, which trades under Chicken of the Sea. The latter companies are both based in San Diego. Company executives have been accused of spending years conspiring to keep the price of packaged tuna artificially high. The packaged seafood market, which also includes salmon, shrimp, clams and the like, is a multi-billion dollar industry in the United States. Tuna represents about 73 percent of the market and generates about $1.7 billion in annual sales, according to court documents. The three big tuna players combined controlled 80 to 85 percent of the U.S. market between 2003-2015, according to legal documents. The civil case, which began as many individual lawsuits in 2015 and was later consolidated, is underway in U.S. District Court of Southern District of California under Judge Janis Sammartino. The plaintiffs -- among whom are familiar names like O'Hara-based Giant Eagle; national retailers Dollar General, Target, and Walmart; food distribution giants U.S. Foods and Sysco -- want to be certified in separate classes: commercial food preparers; end-payer consumers and direct purchasers. Class-action certifications generally allow multiple plaintiffs to combine their efforts and handle their cases more efficiently. Some of the details of the fight are being kept out of the public eye. In court documents with large blocks of text redacted, lawyers for Chicken of the Sea argued, that the commercial food preparers class -- a group that would include companies that indirectly purchased large sizes of tuna products from one of six distributors -- "fall short of carrying their heavy burden of proving that they satisfy all of the prerequisites for class certification . . ." "The [commercial food preparers] now acknowledge that their putative class would include members as disparate as distributors who bought the product for resale; restaurants, delis, nursing homes, and caterers who buy and use the product for commercial food preparation; and individuals who bought the product for personal consumption," the attorneys wrote in documents filed Oct. 2. Meanwhile, in another partially redacted document, lawyers for Bumble Bee Foods argued the "end-payer plaintiffs" failed to show whether there was an antitrust violation; whether all the class members were "injured by the violation"; and "how much each member was injured by the violation." Those arguments also were filed Oct. 2. Judge Sammartino is expected to weigh the arguments in December. The U.S. Department of Justice has launched its own investigation into the issue. In May, a federal grand jury indicted Christopher Lischewski, former president and CEO of Bumble Bee Foods LLC, on a one-count felony charge that he carried out the conspiracy by agreeing to fix the prices of packaged seafood during meetings and other communications between 2010 and 2013. Mr. Lischewski stepped down from the company. He has pleaded not guilty. Three former executives at tuna companies were previously charged and have pleaded guilty: W. Scott Cameron, a former senior vice president of sales for Bumble Bee; Kenneth Worsham, a former senior vice president of trade marketing for Bumble Bee; and Stephen Hodge, former senior vice president of sales for StarKist. In August 2017, Bumble Bee Foods pleaded guilty to its role in the conspiracy and agreed to pay a $25 million criminal fine. [GN] CITIGROUP INC: Averts TCPA Class Action in Illinois --------------------------------------------------- Artin Betpera, writing for TCPAland, reports that CitiGroup, Inc. ("Citi") just defeated certification in a massive class action in the consumer-friendly Northern District of Illinois in the case of Tomeo v. CitiGroup, Inc., No. 13-C-4046, 2018 U.S. Dist. LEXIS 166117 (N.D. Ill. Sept. 27, 2018). The lawyers and experts for Citi did a clinical job of dismantling Plaintiff's bid to certify potentially massive revocation and wrong number classes, both of which were ultimately felled based on the predominance of individualized issues of consent. Below is our play-by-play of Citi's huge win in this case. The Putative Classes Plaintiff sought to represent two classes in this case. The first -- a revocation class -- defined as all persons who were called by Citi using its Aspect UIP or Genesys dialers between October 27, 2010 and November 30, 2014 where Citi's business records indicate the person requested not to be called. The second -- a wrong number class -- defined as all persons who were called by Citi using its Aspect UIP or Genesys dialers between October 27, 2010 and November 30, 2014 where Citi's business records indicate that Citi was told that it had called the wrong number. The size of these potential classes were massive. Just based on a limited universe of dialer data spanning calls made from October 2013 to August 2015, there were 138.7 million outbound calls made by Citi with just its Aspect UIP dialer. And even if a small fraction of these calls were made without consent, in the aggregate that spells hundreds of millions, if not over a billion in potential exposure to statutory damages. The Records As is the case with most (if not all) TCPA class actions, certification came down to whether consent could be determined by common proof based on Citi's own business records. According to the Court's ruling, three different types of computerized records contained information relevant to whether Citi had the necessary consent to contact a phone number. The first, the CitiLink loan system, which contains basic accountholder information and Individual Note Screens where Citi representatives record the details of their interactions with the accountholder. The second, Citi's default-related loan servicing system which contains similar information as CitiLink, but only for accounts in default. The third, FileNet -- the imaging system used by Citi to store digital versions of correspondence, contracts, and other paper documents relevant to accounts. These documents contained not only records and documentation concerning consent, but also revocation of consent. Specifically, Citi had three types of flags relating to TCPA compliance: a "Do Not Call" flag, which is placed when an accountholder asks Citi to stop contacting a specific number, a "Cease and Desist" and "Case 998" flag relating to requests to stop all communications, and subsequent investigations relating to those requests, and a "WRNG" flag for when a Citi representative is informed that Citi called the wrong number. Within this universe of documents, records, and data, the experts fought out whether issues of consent could be determined by common proof. And Citi's experts ultimately won the day. The Experts In Plaintiff's corner -- Jeff Hansen. And if you're a regular reader of this site, or involved in TCPA class litigation, then you've heard of the guy. In Citi's corner -- Ken Sponsler and John Taylor. As you'll see below, these experts packed a potent 1-2 punch. Taylor broadly analyzed and opined on class data, while Sponsler drilled deep into the files for the four class representatives to show that there was no way to determine consent on a class-wide basis without a file-by-file review. The Opinions The Court started by addressing Citi's challenge to the Hansen's opinions. Long story short, the Court threw out the portion of Hansen's opinion relating to ATDS use. It found that his opinions were not reliable because he never inspected or tested the system, and that his report contained impermissible legal conclusions that the dialers used by Citi were an ATDS. Hmm . . . . That sounds familiar. However, it found that the other, more critical aspects of Mr. Hansen's report concerning class data passed the Daubert relevance and reliability tests, as they were "reasoned and founded on data", and would assist the trier of fact because the report "identifies which calls and texts Citi made to cell phones using the Aspect and Genesys dialers, and which of those calls and texts occurred after the individual associated with that phone number requested that Citi stop contacting them or told Citi that it had the wrong number." And in this part of the report, Mr. Hansen opined that consent could be determined on a class-wide basis by reference to the codes contained in Citi's records described above. But not so fast. In rebutting Hansen's opinions, Citi presented "specific evidence establishing that a significant percentage of the putative class consented to receiving calls." Through Taylor's opinion, Citi established that the existence of each of the three flags/codes in its records did not necessarily constitute individuals who did not consent to be called. Mr. Taylor started with a sample of over 1,000 Individual Note Screens, and established that consumers frequently went back and forth between consenting, and revoking consent, so the only way to determine consent for each accountholder was to individually review Citi's files. Mr. Taylor pointed to data which showed that in 17% of the files reviewed by Mr. Hansen, the accountholder had later re-consented to contact. And with respect to the "WRNG" (wrong number) codes, Taylor similarly found that 15% of the time the number actually belonged to a borrower (whether indicated by a later incoming call by the borrower from the same number, or where multiple phone numbers for an account were flagged as wrong number). Then to back up Mr. Taylor's opinions, Citi introduced the report of Sponsler, who had done a more exhaustive review of the four original named plaintiffs and found that Citi had consent to call three of four Plaintiffs. And with respect to the fourth Plaintiff, Citi had obtained the phone number when it was provided by the Plaintiff's mother. Thus, Sponsler opined, it would be necessary to consider information in the files beyond the Individual Notes Screens to determine whether there was consent. The Court agreed, finding that "[t]he level of potential error within both classes is significant." Plaintiff's Response In response to the Taylor/Sponsler opinions, Plaintiff argued that Hansen had provided a common way of addressing the issue of consent because "he could automatically search the Individual Note Screens for evidence that the accountholder re-consented to a phone call," by devising a keyword search for "re-consent phrases". But the Court rejected the idea, finding that "Hansen was unable to execute this mass-search to show that it could be done," and that in any event "there is no one word that Hansen could search to determine the consent status for each potential class member at the time of each potential violation." The Court found this approach to be "equally problematic" with respect to the wrong number class, and was not convinced that Hansen had developed a common way to isolate those who had already consented to calls. This is due to a circumstance present in many wrong number debt-collection classes: many customers would falsely claim that Citi had called the wrong number to avoid calls, and if the customer provided a number belonging to another person -- say a family member -- an inquiry into that customer's authority to provide consent to call that number would be required. But above it all, the Court was left unpersuaded by Hansen's proposals because he "ha[d] not actually executed any of the methods that he proposes for determining consent or actual wrong numbers," and Plaintiff could not "establish predominance based on Hansen's proposed, but unexecuted and unproven analysis." Key Findings by the Court After reviewing, analyzing, and digesting the parties' respective evidence and expert reports, the Court denied class certification because "individualized issues of consent predominate, and thus [Plaintiff] has not carried his burden under Rule 23(b)(3)". And in reaching its holding, the Court made five key findings: It didn't matter that consent was an affirmative defense versus an element of Plaintiff's claim: "The need for individualized inquires with respect to an affirmative defense may still defeat the predominance requirement." The issue of consent eclipsed any other common issues because "most or even all class members will require this inquiry," and the issue directly affected "whether [Citi] was liable for some violation of the law." Consent is inextricably intertwined with the primary issue of liability to the point where it predominates over the other common issues in the case, and other common issues would not "sufficiently drive the resolution of the litigation to convince the Court to look past the issue of consent." Although the Taylor report was based on a statistical sampling which found consent issues with 15-17% of the class, the purpose of those reports were to identify some flaws in the potential classes, not all the flaws. The point being, is these samplings were enough to establish that that individualized inquiries into consent would be required. As explained above, in the face of Citi's evidence that it had consent for a significant percentage of the potential class members, Plaintiff failed to establish a way to determine consent on a classwide basis. As we've seen before, weak showings of individualized issues of consent are bound to result in class certification. Defeating certification in revocation or wrong number TCPA class actions instead requires a robust showing -- supported by "specific evidence" -- not only that members of the class consented, but that those issues of consent cannot be resolved on a class-wide basis without individualized inquiries. Citi and its lawyers put on quite the clinic in this case on how that can -- and should -- be done in these sorts of cases. [GN] COLACEM CANADA: Jan. 28 Settlement Approval Hearing --------------------------------------------------- Siskinds, Desmeules s.e.n.c.r.l., disclosed that on September 19, 2018, a settlement agreement was reached in a class action against Colacem Canada inc. ("Colacem") alleging inter alia neighborhood disturbances. Colacem has denied and continues to deny any misconduct or liability of any kind in relation to the exercise of this class action. The rights of residents and owners or lessees of a piece of land, an immoveable or a business in the municipalities of Grenville-sur-la-Rouge and Harrington, between June 8, 2008 and January 29, 2015, might be affected. Under the settlement agreement, an amount of $1,3 million will be paid to resolve these claims, as well as an amount of $135 000 to cover the cost of disbursements incurred by Class Counsel (defined below) in litigating this class action. Colacem has also agreed to pay notice costs and the costs of administering the settlement agreement. An information meeting about the settlement agreement will take place on Sunday, October 14, 2018, at Harrington Golden Age Center (HGAC), located at 259, Harrington Road, Grenville-sur-la-Rouge, at 1:00 PM. The settlement agreement is conditional on approval by the Superior Court of Québec. The approval hearing will take place on January 28, 2019, at 9:30 a.m., in room 1.156 of the Montréal Courthouse. At this hearing, Class Counsel will also be asking the Court to approve a protocol for distributing the settlement funds to class members and to approve their legal fees. If you would like to submit comments on/or object to the proposed settlement agreement or distribution protocol, you must send your written submissions to Class Counsel at the email or mailing address provided below so that they are received on or before January 14, 2019. For more information and/or to view copies of the proposed settlement agreement and distribution protocol, visit : www.siskinds.com/colacem-canada/. For further information: Please contact: Siskinds, Desmeules, s.e.n.c.r.l. 43, rue de Buade, bureau 320 Quebec G1R 4A2 Tel: (418) 694-2009 Email: recours@siskindsdesmeules.com For media inquiries, please contact: Karim Diallo Tel: (418) 694-2009 Email: karim.diallo@siskindsdesmeules.com [GN] COSTCO WHOLESALE: Settlement in Backer Law Suit Has Prelim Approval ------------------------------------------------------------------- In the case, THE BACKER LAW FIRM, LLC, on behalf of itself and all those similarly situated, Plaintiff, v. COSTCO WHOLESALE CORPORATION, Defendant, Case No. 4:15-CV-00327-SRB (W.D. Mo.), Judge Stephen R. Bough of the U.S. District Court for the Western District of Missouri, Western Division, granted the Plaintiff's Amended Motion for Preliminary Approval of Class Action Settlement. The Judge ordered that the action will be maintained as a class action under Rule 23, on behalf of the Plaintiff class of all persons or entities appearing in the List of Class Members to whom the Defendant sent one or more facsimiles promoting its products, services, or memberships between April 2, 2011 and April 2, 2015. Plaintiff The Backer Law Firm, LLC remains the appointed Class Representative; and Noah K. Wood and Ari N. Rodopoulos of Wood Law Firm, LLC remain the appointed counsel for the Class. The Judge approved the Class Notices. The Administrator is directed to issue the Class Notices no later than 10 days after entry of the Order. The long notice will be posted on the website for the class members to review as set forth in the Settlement Agreement. The short notice will be mailed to the class members. If the Administrator is unable to provide the short notice to any class members by mail, the Administrator will send the short notice by facsimile to such class members. As stated in the Settlement Agreement, Class members will be entitled to exclude themselves by written statement requesting exclusion from the settlement on or before the applicable Objection/Opt-Out Date. To be valid, the Request for Exclusion must contain the name and address (telephone number is optional) of the person or business requesting exclusion and must be returned by First Class Mail to the Administrator, postmarked on or before the Objection/Opt-Out Date. The Class members will be entitled to object to the proposed settlement on or before Oct. 29, 2018. The Final Approval Hearing is set for Nov. 13, 2018, at 2:30 p.m. A full-text copy of the Court's Sept. 19, 2018 Order is available at https://is.gd/YJwBiq from Leagle.com. The Backer Law Firm, on behalf of itself and all those similarly situated, Plaintiff, represented by Aristotle N. Rodopoulos -- ari@woodlaw.com -- Wood Law Firm LLC & Noah K. Wood -- noah@woodlaw.com. Costco Wholesale Corporation, Defendant, represented by Rebecca J. Schwartz -- rschwartz@shb.com -- Shook, Hardy & Bacon, LLP & Todd W. Ruskamp -- truskamp@shb.com -- Shook, Hardy & Bacon, LLP. DAMYE GROUP: Gonzales Garcia Files Labor Class Suit in New York --------------------------------------------------------------- A class action lawsuit has been filed against Damye Group Corp., et al. The case is styled as Melquiades Gonzalez Garcia individually and on behalf of others similarly situated, Plaintiff v. Damye Group Corp. doing business as: Subsational, Ralab-232 Corp. doing business as: Subsational, SBSP Corp. doing business as: Subsational, Gary Gani, Defendants, Case No. 1:18-cv-05870 (E.D. N.Y., Oct. 19, 2018). The Plaintiff filed the case under the Fair Labor Standards Act. Subsational is a Glatt Kosher meat restaurant established in 1998 serving Brooklyn NYC. It is located at 2901 Campus Road, Brooklyn, NY 11210.[BN] The Plaintiff appears pro se. DOORDASH INC: Bessard Suit Seeks Payment of Overtime Wages ---------------------------------------------------------- SHAZAE BESSARD, on Behalf of Herself and on Behalf of All Others Similarly Situated, Plaintiff, v. DOORDASH, INC., Defendant, Case No. 4:18-cv-03846 (S.D. Tex., Oct. 16, 2018), seeks minimum wages for all hours worked up to 40 per week; overtime compensation for all hours worked in excess of forty 40 per week at the rate of one and a half times the regular rate of pay; an equal amount as liquidated damages; reasonable and necessary attorneys' fees, costs, and expenses of this action; and such other and further relief as may be required by law. The complaint says DOORDASH does not pay Plaintiff or its other delivery drivers (a/k/a Dashers) an hourly wage or a salary. Rather, the Plaintiff receives the "delivery fee" that is paid by DOORDASH'S customers, as well as any gratuity that the customer pays to the Dasher. The Defendant misclassifies Plaintiff and its Dashers as "independent contractors" rather than "employees" and fails to pay them for all hours worked. It also fails to pay appropriate overtime wages when Dashers work more than forty 40 hours in a workweek as required by the Fair Labor Standards Act. In addition, the Defendant has required Plaintiff and its other Dashers to pay business expenses (including expenses incurred to own/lease a vehicle, maintain it, and fuel it) causing Plaintiff to be paid less than the statutory minimum and overtime wage required by Sections 206 and 207 of the FLSA. As a result, Defendant violates the minimum and overtime wage provisions of the FLSA, says the complaint. DOORDASH is a food delivery service which provides home and office food delivery to its customers. Plaintiff was hired to work as a delivery driver/Dasher for Defendant. Plaintiff Shazae Bessard lives in the Southern District of Texas. Plaintiff is currently employed by Defendant as a Dasher and has worked there since August 2016. The class of similarly situated employees consists of all delivery drivers (i.e. Dashers) who worked for Defendant within the last three years. The Plaintiff is represented by: Robert R. Debes, Jr., Esq. Todd Slobin, Esq. Ricardo Prieto, Esq. SHELLIST LAZARZ SLOBIN LLP 11 Greenway Plaza, Suite 1515 Houston, TX 77046 Telephone: (713) 621-2277 Facsimile: (713) 621-0993 DOORDASH INC: Workchow Development Files Suit in Tennessee ---------------------------------------------------------- Doordash, Inc. is facing a class action lawsuit in Tennessee. The case is styled as Workchow Development, LLC, on behalf of itself and all others similarly situated, Plaintiff v. Doordash, Inc., Defendant, Case No. 3:18-cv-01142 (M.D. Tenn., Oct. 18, 2018). DoorDash, Inc. provides on-demand restaurant food delivery services connecting customers with local businesses in Honolulu and Ottawa areas. It also serves customers in Rochester, Greenville, and Reno. DoorDash, Inc. was formerly known as Palo Alto Delivery and changed its name to DoorDash, Inc. in October 2014.[BN] The Plaintiff is represented by: E. Adam Webb, Esq. Webb & Porter, LLC 2625 Cumberland Parkway, SE, Suite 220 Atlanta, GA 30339 Phone: (770) 444-0773 Email: eadamwebb@hotmail.com - and - William F. Burns, Esq. Watson Burns, PLLC 11 S Idlewild Street Memphis, TN 38104 Phone: (901) 529-7996 Fax: (901) 529-7998 Email: bburns@watsonburns.com ELITE MGT: Dismissal of Unjust Enrichment Claim in Barger Flipped ----------------------------------------------------------------- In the case, NICOLE McCLENDON BARGER, Individually, and on behalf of those similarly situated, Plaintiff-Appellant, v. ELITE MANAGEMENT SERVICES, INC., Defendant-Appellee, Appeal No. C-170322 (Ohio App.), Judge Charles M. Miller of the Court of Appeals of Ohio First District, Hamilton County, (i) affirmed the trial court's dismissal of Barger's claims for breach of contract, violations of the Ohio Consumer Sales Practices Act ("OCSPA") and the Ohio Planned Community Law ("OPCL"), and for declaratory judgment; and (ii) reversed trial court's the dismissal of Barger's unjust enrichment claim. Barger owned a home in the Fairfield Ridge Subdivision. As such, she was a member of the Fairfield Ridge Homeowners Association ("HOA"). The HOA is not a party to the lawsuit. As is customary, Barger was required to pay HOA assessments to cover the costs of operating, maintaining and governing the subdivision. According to Barger's complaint, to sell her house, Barger had to provide the title company a letter certifying the amount of any HOA fees Barger may have owed, or the sale would not have closed. Under the HOA's Declaration, the HOA could levy a "reasonable charge" to provide such certification letters to its members. The HOA had contracted with EMS to provide certain management services for the HOA. EMS provided Barger with the required certification letter. EMS allegedly charged Barger $395 for the letter, along with a $100 fee to expedite the letter for the closing. According to Barger, other companies typically charged $25 to $50 for this service, making EMS's fee unreasonable. Barger sued EMS on behalf of herself and others similarly situated. In pertinent part, she claimed that the fee breached EMS' management contract with the HOA and the HOA's Declaration, violated the OPCL and the OCSPA, and constituted unjust enrichment. EMS moved for and was granted dismissal of Barger's complaint under Civ.R. 12(B)(6) for the failure to state a claim upon which relief could be granted. In a sole assignment of error, Barger contends that the trial court erred, and its judgment must be reversed. Judge Miller affirmed in part and reversed in part. He sustained in part and overruled in part Barger's assignment of error. He reversed that part of the judgment dismissing her unjust enrichment claim, and remanded the cause for further proceedings. In all other respects, the trial court's judgment is affirmed. He found that the trial court incorrectly dismissed the unjust enrichment claim on the basis that Barger was not a party to the management agreement between the HOA and EMS, and was also not a third-party beneficiary of it. Thus, the court determined EMS did not breach a duty to Barger by charging an allegedly exorbitant fee for the letter. While this was the proper basis for dismissing Barger's breach of the management agreement claim, Barger's unjust enrichment claim lies outside of that agreement. The claim is sufficiently plead and stands on its own. He therefore reversed that part of the trial court's judgment dismissing Barger's unjust enrichment claim. A full-text copy of the Court's Sept. 19, 2018 Opinion is available at https://is.gd/yzji1x from Leagle.com. Montgomery, Rennie & Jonson, George D. Jonson -- GJonson@mrjlaw.com -- and Anthony P. McNamara -- AMcNamara@mrjlaw.com -- and Statman, Harris & Eyrich, L.L.C.,, Alan J. Statman -- ajstatman@statmanharris.com -- and Sylvie Derrien -- sderrien@statmanharris.com -- for Plaintiff-Appellant. Stagnaro, Saba, & Patterson Co., L.P.A., Jeffrey M. Nye -- jmn@sspfirm.com -- and Christopher R. Jones -- crj@sspfirm.com -- for Defendant-Appellee. EVENTBRITE: Faces Class Action Over Ticketfly Cyber-Attack ---------------------------------------------------------- Jessica Haworth, writing for Portswigger.net, reports that Eventbrite is facing a class action lawsuit over a cyber-attack on its subsidiary website Ticketfly, which exposed the details of up to 27 million users. The website was compromised by unknown hackers at the end of May, who left the ticketing site's homepage defaced with the message: 'Your Security Down im (sic) Not Sorry'. Ticketfly admitted that "some client and customer information" had been compromised, and later said that this figure was close to 27 million. Now, the US company is facing further drama as angry victims launched a class action lawsuit. The suit reportedly states that Eventbrite 'failed to prevent, detect, or otherwise act in a reasonable manner or within a reasonable time' with regards to the breach. It also alleges that information including names, phone numbers, passwords, email addresses, and home addresses were accessed in the hack. The plaintiff, reported to be a woman named Shanice Kloss, claims that Eventbrite did not put adequate safety measures in place in an effort to save money. Eventbrite has not yet commented on the lawsuit. So far, the culprit has not been formally identified, and in a message to Ticketfly named themselves only as 'IsHaKdZ'. The hackers spoke to Motherboard in June and alleged that they had reached out to Ticketfly alerting them of a vulnerability and demanded one bitcoin in exchange for details. Ticketfly failed to respond to emails, the hackers said, leading to the attack. [GN] EXCELSIOR HOTEL: Faces Civil Rights Suit in New York ---------------------------------------------------- A class action lawsuit has been filed against Excelsior Syndicate Inc. asserting civil rights violation. The case is styled as Byron Breeze, Jr. on behalf of himself, and all similarly situated individuals, Plaintiff v. Excelsior Syndicate Inc. a New York corporation, Defendant, Case No. 1:18-cv-09622 (S.D. N.Y., Oct. 19, 2018). Excelsior Syndicate Inc. (trade name Excelsior Hotel) is in the Residential Hotel Operation business. It is located at 45 W 81st St New York, NY 10024-6025.[BN] The Plaintiff is represented by: Erik Mathew Bashian, Esq. Bashian & Papantoniou, P.C 500 Old Country Road, Suite 302 Garden City, NY 11530 Phone: (516) 279-1555 Fax: (516) 213-0339 Email: eb@bashpaplaw.com FAITH AND FREEDOM: Wijesinha Sues Over Unsolicited Text Campaign ---------------------------------------------------------------- SHEHAN WIJESINHA individually and on behalf of all others similarly situated v. FAITH AND FREEDOM COALITION, INC., Case No. 1:18-cv-24134-CMA (S.D. Fla., October 8, 2018), arises from the Defendant's alleged violations of the Telephone Consumer Protection Act by embarking on an unsolicited text message campaign, causing the Plaintiff and class members injuries, including invasion of their privacy, aggravation, annoyance, intrusion on seclusion, trespass, and conversion. FFC is a 501(c)(4) non-profit organization with its principal office located in Duluth, Georgia. FFC is a political non-profit organization whose goals are to "influence public policy and enact legislation that strengthens families, promotes time-honored values, protects the dignity of life and marriage, lowers the tax burden on small business and families, and requires government to tighten its belt and live within its means."[BN] The Plaintiff is represented by: Ignacio J. Hiraldo, Esq. IJH LAW 1200 Brickell Ave., Suite 1950 Miami, FL 33131 Telephone: (786) 496-4469 E-mail: ijhiraldo@ijhlaw.com - and - Manuel S. Hiraldo, Esq. HIRALDO P.A. 401 E. Las Olas Boulevard, Suite 1400 Ft. Lauderdale, FL 33301 Telephone: (954) 400-4713 E-mail: mhiraldo@hiraldolaw.com FIRSTSOURCE ADVANTAGE: American Express Can Intervene in Brown Suit ------------------------------------------------------------------- In the case, DAYO BROWN, pleading on his own behalf and on behalf of all similarly situated consumers, Plaintiff, v. FIRSTSOURCE ADVANTAGE, LLC, Defendant, Civil Action No. 17-5760 (E.D. Pa.), Judge Gerald J. Pappert of the U.S. District Court for the Eastern District of Pennsylvania granted American Express Bank, FSB's motion to intervene as a Defendant pursuant to Federal Rule of Civil Procedure 24(a)(2). Brown sued Firstsource alleging improper and deceptive debt collection activity in violation of the Fair Debt Collection Practices Act ("FDCPA"). Brown's claims arise from Firstsource's efforts to collect his American Express credit card debt. Between Dec. 30, 2016 and April 3, 2017, Brown received four letters signed by "American Express Global Collections" inviting him to settle his debt. He alleges that Firstsource mailed and sent those letters, intentionally masquerading as American Express. Brown brought a putative class action against Firstsource on Dec. 18, 2017, alleging unfair and deceptive acts in violation of the FDCPA. When Brown opened his Gold Delta SkyMiles credit card account on Jan. 30, 2015, he entered into a Cardmember Agreement with American Express that contains an arbitration provision. American Express moved to intervene as a Defendant on Feb. 21, 2018. It contends that Brown's claim threatens its ability to use third-party vendors like Firstsource to collect consumer debt. It also argues that Brown's Cardmember Agreement with American Express governs disputes between consumers and third-party vendors, and Brown's putative class action thus threatens American Express' ability to enforce the Agreement's arbitration provision. Brown opposes the Motion. Firstsource does not. Judge Pappert finds that American Express has alleged sufficient interest in the litigation, namely an interest in defending its ability to collect debt using third-party vendors and its interest in enforcing the arbitration provision of its contract with Brown. The fact that Brown's claim does not directly target American Express does not render its interests insufficient or general. As Brown's creditor, American Express is uniquely positioned between Brown and Firstsource. Brown's claim challenges the way American Express's vendors communicate with consumers. And if the arbitration provision of the Cardmember Agreement does govern disputes between consumers and vendors, American Express has a specific interest in ensuring that those claims are resolved in its chosen forum. He also finds that American Express has demonstrated a tangible threat that its interests will be impaired, as a practical matter, by the disposition of the case. Regardless of the outcome, its interest in arbitrating these types of disputes with not only Brown, but all American Express cardholders, will be impaired if it is not given the chance to argue that the arbitration provision of its Cardmember Agreement applies to FDCPA claims against its vendors. A ruling for Brown that Firstsource violated the FDCPA would also directly affect the way American Express uses vendors to communicate with consumers and collect debt. Finaly, he finds that American Express has met its burden to show that Firstsource may not adequately represent its interests in the case. Firstsource has an interest in defending its own compliance with the FDCPA. That interest is distinct from and narrower than American Express' interest in defending the way its vendors communicate with its cardholders using American Express' name. Moreover, only American Express can enforce the arbitration provision of its contract with Brown. Brown's argument that the parties cannot have divergent interests if they are represented by the same counsel also misses the mark. While it may show that American Express and Firstsource's interests are not adverse, American Express could still raise defenses, like the arbitration provision of the Cardmember Agreement, that Firstsource is unable to invoke. For these reasons, Judge Pappert granted American Express' Motion. An appropriate order follows. A full-text copy of the Court's Sept. 21, 2018 Memorandum is available at https://is.gd/TAsUhV from Leagle.com. DAYO BROWN, PLEADING ON HIS OWN BEHALF AND ON BEHALF OF ALL OTHER SIMILAR SITUATED CONSUMERS, Plaintiff, represented by ALEXANDER R. FERRANTE -- arf@goldferrantelaw.com -- GOLD & FERRANTE & DANIEL ZEMEL, ZEMEL LAW LLC. FIRSTSOURCE ADVANTAGE, LLC, Defendant, represented by CHRISTOPHER R. FREDRICH -- cfredrich@stroock.com -- STROOCK & STROOCK & LAVAN LLP, DAVID W. MOON -- dmoon@stroock.com -- STROOCK & STROOCK & LAVAN LLP & CASEY GREEN -- cg@greatlawyers.com -- SIDKOFF, PINCUS & GREEN, P.C. AMERICAN EXPRESS BANK, FSB, Movant, represented by CASEY GREEN, SIDKOFF, PINCUS & GREEN, P.C.. FORESTRY MGMT: Partial Summary Judgment Bid in Montford Denied -------------------------------------------------------------- In the case, JOHN MACK MONTFORD, on behalf of himself and others similarly situated who consent to their inclusion in a collective action, Plaintiffs, v. FORESTRY MANAGEMENT SERVICE, LLC and BRANDAN SPILLERS, Defendants, Civil Action No. 5:18-CV-19 (MTT) (M.D. Ga.), Judge Marc T. Treadwell of the U.S. District Court for the Middle District of Georgia, Macon Division, denied as premature the Plaintiffs' motion for partial summary judgment. The case is a putative class action asserting claims for overtime violations under the Fair Labor Standards Act ("FLSA"). On March 23, 2018, the Court issued its Scheduling Order, setting Sept. 24, 2018 as the deadline for discovery. On July 11, 2018, the Plaintiffs moved for partial summary judgment as to liability for overtime for themselves as well as all similarly situated employees and ex-employees of the Defendants. In response, the Defendants point out that the Court recently granted conditional certification of the FLSA collective action, the potential opt-in Plaintiffs have not yet been added to the case, and discovery is ongoing. They also note that the depositions have not yet begun, and the facts (uncontested and otherwise) have yet to be developed. Thus, the Defendants contend that the Plaintiffs' motion for partial summary judgment is premature at this stage. Judge Treadwell agrees. He explains that as acknowledged by the Plaintiffs in the parties' joint supplemental discovery status report, which was filed on Aug. 24, 2018, the parties have not yet conducted depositions and expect to seek an extension of the discovery deadline to allow the additional Plaintiffs sufficient time to opt in and appropriate written and deposition discovery to take place. In fact, on Sept. 21, 2018, the parties filed a joint motion seeking to extend the discovery period for 60 days after the end of the opt-in period. The Judge granted that motion. Clearly, at this stage, the Defendants have not had an adequate opportunity to develop the facts necessary to oppose the Plaintiffs' motion for partial summary judgment. Accordingly, Judge Treadwell denied the Plaintiffs' motion as premature. The Plaintiffs may move for summary judgment after the discovery period ends and after the additional Plaintiffs have opted in. A full-text copy of the Court's Sept. 21, 2018 Order is available at https://is.gd/Oc8jDQ from Leagle.com. JOHN MACK MONTFORD, Individually and on behalf of all others similarly situated who consent to their inclusion in a collective action, WINIFRED WORSHAM, RICHARD TURNER, LAFONZA TOWNS, ALDWIA TOOKES, DAVID COLBERT, JEREMY KENNINGTON & JAMIE KENNINGTON, Plaintiffs, represented by MCNEILL STOKES -- mcstokes@bellsouth.net. FORESTRY MANAGEMENT SERVICE LLC & BRANDAN SPILLERS, formerly known as BRAND SPILLER, Defendants, represented by ALYSSA K. PETERS -- apeters@constangy.com -- Constangy Brooks Smith & Prophete, LLP & William J. Martin, II -- jmartin@constangy.com -- Constangy Brooks Smith & Prophete, LLP. GLENMORE & CENTRE: To Pay $2MM in Partial Class Action Settlement ----------------------------------------------------------------- Reid Southwick, writing for CBC News, reports that a company owned by real estate developer Riaz Mamdani will pay more than $2 million in a partial settlement over a class-action lawsuit, allowing investors to recoup roughly half of what they lost in an alleged conspiracy. But the deal states Mr. Mamdani and his companies don't accept any guilt or liability in the alleged scheme at the centre of the case, which involved a complex web of investments in a southeast Calgary strip mall. As a result of the settlement, approved by Court of Queen's Bench Justice Alan Macleod earlier in September, all of the claims against Mr. Mamdani and his companies are dismissed. Partner denies allegations The class action continues against the remaining defendants, including Shariff Chandran, Mr. Mamdani's former business partner who denies the allegations against him. "We see it as a real win for class members," said Andrew Sunter, a lawyer representing investors in the lawsuit. "In a lot of these types of cases, they get pennies on the dollar, and this is a partial settlement with one of the defendants, and we're seeing a recovery of close to 50 per cent [of lost investments]." But Frank Percival, a Calgary man who claims he lost $50,000 in the strip mall investment in 2008, said he has mixed emotions about the settlement. "We can say we're happy that we won, but what did we win? We got half our money or less, and it's taken 10 years to do it," Percival said. Mr. Mamdani declined an interview request. In a statement, he said he hopes investors will recoup their losses from the remaining defendants. The real estate developer was shot six times outside his Upper Mount Royal mansion in December 2016 in what police later called an attempted murder, but investigators have made no arrests. A long list of people had grievances against Mr. Mamdani, given that he, his wife and his companies have been involved in dozens of lawsuits. But it's unknown whether those cases had anything to do with the shooting. The partial settlement involves a strip mall called Glenmore & Centre, located at 6624 and 6626 Centre Street S.E. According to the lawsuit, people who invested in the development were told they'd get steady returns every three months and would also receive a share of revenues from an eventual sale of the property. Mr. Sunter said several investors put up hundreds of thousands of dollars for the project -- in some cases their life savings -- and allegedly never saw their initial investment again. According to Mr. Sunter, an estimated 110 investors are owed roughly $4.5 million. His firm filed the lawsuit in 2012 and it was certified as a class action more than a year later. None of the claims have been proven. Mr. Mamdani and Mr. Chandran are named in a separate omnibus class action lawsuit that alleges 2,200 investors lost $180 million in a conspiracy involving 21 other projects. They both deny the allegations. The Glenmore & Centre case was carved out of the larger class action by court order. Mr. Chandran said in an interview the strip mall case has been dragging through the courts. "If [the plaintiffs] want to continue with it, we'll see where it goes," he said, adding he'll keep fighting the allegations. According to court records, the partial settlement over the Glenmore & Centre lawsuit is a "compromise of disputed claims." Strategic Group says case 'fully resolved' The Strategic Group, Mr. Mamdani's flagship real estate firm, noted in a press release the case is now fully resolved against the company and its chief executive. "It is our hope the plaintiffs will recover their losses," Mr. Mamdani said in the statement. The release doesn't mention the multimillion-dollar settlement but notes the court approved a "mechanism" allowing for the payment of legal fees. Glenmore & Centre Ltd., another of Mr. Mamdani's companies, agreed to pay $2.25 million in the partial settlement. While lawyers will take roughly $357,000, plus administrative costs, the remaining funds will go to investors. They have until the end of November to file claims, which Mr. Sunter will review to ensure they're valid before submitting them to court for approval. Mr. Sunter expects investors will start receiving money by late January 2019. "Once we have administered this payout, we'll focus on seeing what additional recovery we can get for our clients," he said. [GN] GLOBAL DOC: Benhayon Files Suit in Florida Court ------------------------------------------------ A class action lawsuit has been filed against Global Doc Prep, Inc. The case is styled as Michael Benhayon individually and on behalf of all others similarly situated, Plaintiff v. Global Doc Prep, Inc., Defendant, Case No. 0:18-cv-62516-RNS (S.D. Fla., Oct. 19, 2018). Global Doc Prep was founded with the sole purpose of providing the essential services needed in order to navigate, prepare and follow through with the Federal Student Loan documentation process.[BN] The Plaintiff is represented by: Manuel Santiago Hiraldo, Esq. Hiraldo P.A. 401 E. Las Olas Blvd. Ste 1400 Fort Lauderdale, FL 33394 Phone: (954) 400-4713 Email: mhiraldo@hiraldolaw.com GLOBAL POWER: Shareholder Class Action Dismissed ------------------------------------------------ Ambrogio Visconti, writing for Global Legal Chronicle, reports that a Cahill litigation team has prevailed on behalf of Global Power Equipment Group Inc. (now Williams Industrial Services Group Inc.) in obtaining the dismissal with prejudice of a putative shareholder class action. Williams Industrial Services Group Inc. provides general and specialty construction, maintenance and modification, and plant management support services to the nuclear, hydro and fossil power generation, pulp and paper, refining, petrochemical, and other process and manufacturing industries. The action was filed in 2015 following Global Power's announcement of its intent to restate certain of its prior financial statements. The complaint asserted claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. On September 11, 2018, Chief Judge Barbara Lynn of the U.S. District Court for the Northern District of Texas granted the Company's motion to dismiss the complaint in its entirety with prejudice. Cahill advised with a team including Bradley J. Bondi, David G. Januszewski, Tammy L. Roy and John Cycon. [GN] GMRI INC: Liggins Files Labor Class Action California ----------------------------------------------------- A labor class action lawsuit has been filed against GMRI, Inc., et al. The case is styled as Adrienne Liggins individually and on behalf of others similarly situated and aggrieved, Plaintiff v. GMRI, INC., a Florida corporation doing business as Olive Garaden Italian Restaurant, Olive Garden Holdings, LLC, a Florida limited liability company, Olive Garden, LLC a California limited liability Company, Darden Restaurants, Inc. a Flordia corporation, Olive Garden Italian Restaurant-Manhattan Beach an entity of unknown form, and Olive Garden Italian Restaurant-Huntington Beach an entity of unknown form, Defendants, Case No. 2:18-cv-09000 (C.D. Cal., Oct. 18, 2018). GMRI, Inc. owns and operates a network of fresh grill and wine bars in the United States. Its wine bars offer custom flatbreads, mini indulgences, lunch and dinner menus, bar menus, private dining services, chef's table menus, and alternative menus; and various organic and biodynamic wines. GMRI, Inc. was formerly known as General Mills Restaurants Inc.[BN] The Plaintiff appears pro se. GOOGLE INC: Averts UK Suit Over iPhone User Data Collection ----------------------------------------------------------- Deutshce Well reports that the UK's High Court ruled on Oct. 8 not to go ahead with a mass lawsuit against internet giant Google for allegedly collecting sensitive data from 4.4 million iPhone users in England and Wales. The High Court judgement stated, "there is no dispute that it is arguable that Google's alleged role in the collection, collation, and use of data obtained via the Safari Workaround was wrongful, and a breach of duty." Justice Mark Warby overseeing the case said it had been blocked because the claim that people had suffered damages were not supported by the facts, as well as the impossibility of calculating the number of iPhone users affected. The collection of data was "wrongful and a breach of duty," he said, but ruled that there was insufficient evidence "damages" had been incurred. Allegations The legal challenge from a group calling itself Google You Owe Us was a representative action -- a claim brought by an individual on behalf of a group of people. It alleged that Google, a unit of the US tech company Alphabet, had bypassed privacy settings on iPhones between August 2011 and February 2012 to collect data for advertisers. It launched legal action last November. The group said it had hoped to win GBP1 billion (EUR1.1 billion, $1.3 billion) in compensation. A lawyer for the group told the judge in the case that the same alleged activity had been exposed in 2012 and that Google had already paid millions to settle claims in the US. Its leader, Richard Lloyd, called the decision "extremely disappointing" and said there were plans to appeal. "The judgement effectively leaves millions of people without any practical way to seek redress and compensation when their personal data has been misused," he said. Google happy "The privacy and security of our users is extremely important to us. This claim is without merit, and we're pleased the Court has dismissed it," a Google spokesperson said. [GN] GOOGLE INC: Google+ to Shut Down Following User Data Exposure ------------------------------------------------------------- Erin Corbett, writing for Fortune, reports that a Google+ security bug gave outside developers access to the private data of hundreds of thousands of the social network's users between 2015 and March 2018, according to a Wall Street Journal report. Google neglected to report the issue to the public, allegedly out of fear that the company would face regulations and damage to its reputation, according to sources and documents obtained by the Journal. In a memo cited by the paper, Google's legal and policy staff warned against disclosing the bug, fearing it would draw comparisons to Facebook's mishandling of user data, when more than 50 million Facebook users had their personal information leaked to the data firm Cambridge Analytica. The information exposed in the Google+ incident included full names, email addresses, birth dates, gender, profile photos, places lived, occupation, and relationship status. Though this incident wasn't technically a breach -- there was no hack or signs of abuse -- Google has recently been at the center of a number of privacy breaches. The company was the target of a massive class action lawsuit in the U.K. after 4 million users had their personal data collected and allegedly used for targeted advertising. The lawsuit was blocked in the High Court on Oct. 8. The Google+ data vulnerability was discovered in March of this year during an audit of the company's APIs, conducted by a privacy task force codenamed Project Strobe. A bug in the API could have allowed outside developers to access the data of 496,951 users who had only opted to share their private profile data with friends. Google was expected to announce the bug on Oct. 8, as well as its plans shut down Google+, according to the Journal. [GN] GOOGLE INC: Matic Sues Over Data Leak Exposing Users' Info ---------------------------------------------------------- Matt Matic, an individual and California Resident, and Zak Harris, an individual and California Resident v. GOOGLE, INC. and ALPHABET, INC., Case No. 5:18-cv-06164 (N.D. Cal., October 8, 2018), is brought on behalf of the Plaintiffs and all others similarly situated users alleging violations of the Consumer Records Act, Online Privacy Protection Act and Federal Trade Commission Act. The case involves the data leak Google and Alphabet announced on October 8, 2018, wherein the Personal Information of up to 500,000 users was exposed due to a software glitch that gave third-party application developers access to private Google+ profile data between 2015 and March 2018. The Plaintiff contends that while this information was supposed to be protected, and shared only with expressed permissions and limitations, the Defendants allowed third-party application developers to improperly collect the Personal Information of up to 500,000 Google+ users. Google, Inc., is a Delaware corporation with its principal headquarters in Mountain View, California. Alphabet, Inc., is a Delaware corporation with its principal headquarters in Mountain View. Alphabet is a public holding company formed in a corporate reorganization by Google. Through the corporate restructuring, Google is now a direct, wholly owned subsidiary of Alphabet. Launched in June 2011, Google+ (or Google Plus) is a social network owned and operated by Google for consumers with Google accounts. Google+ facilitates the sharing of information, photographs, weblinks, conversations, and other shared content similar in many respects to the Facebook news feed or Twitter stream.[BN] The Plaintiffs are represented by: Clayeo C. Arnold, Esq. Joshua H. Watson, Esq. CLAYEO C. ARNOLD, A PROFESSIONAL LAW CORPORATION 865 Howe Avenue Sacramento, CA 95825 Telephone: (916) 777-7777 Facsimile: (916) 924-1829 E-mail: carnold@justice4you.com jwatson@justice4you.com - and - John A. Yanchunis, Esq. Jean S. Martin, Esq. Ryan J. McGee, Esq. MORGAN & MORGAN COMPLEX LITIGATION GROUP 201 N. Franklin Street, 7th Floor Tampa, FL 33602 Telephone: (813) 223-5505 Facsimile: (813) 223-5402 E-mail: jyanchunis@ForThePeople.com jeanmartin@ForThePeople.com rmcgee@ForThePeople.com GOOGLE INC: Settles Applicants' Age Discrimination Class Action --------------------------------------------------------------- Daniel Wiessner, writing for Reuters, reports that Google has reached a tentative deal with a class of older job applicants to settle claims that the tech giant interviewed them to give the impression that it cared about diversity, but then passed them over for engineering jobs because of their age. U.S. District Judge Beth Labson Freeman in San Jose, California on Oct. 5 granted a joint motion filed earlier in the day by Google and the plaintiffs to stay the case pending a final deal. They did not disclose any details of the tentative settlement, and said they would file a proposal in the next 90 days. [GN] HALSTON OPERATING: Figueroa Files ADA Suit in NY Ct. ---------------------------------------------------- A class action lawsuit has been filed against Halston Operating Company, LLC. The case is styled as Jose Figueroa on behalf of himself and all others similarly situated, Plaintiff v. Halston Operating Company, LLC doing business as: Halston Heritage, Defendant, Case No. 1:18-cv-09583 (S.D. N.Y., Oct. 18, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. Halston Operating Company, LLC, doing business as Halston Heritage, designs, manufactures, and retails apparel. The Company offers dresses, tops, sweaters, skirts and shorts, pants, jumpsuits, jackets, coats, and accessories.[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 HASBRO INC: Robbins Geller Rudman Files Class Action Suit --------------------------------------------------------- Robbins Geller Rudman & Dowd LLP disclosed that a class action has been commenced by an institutional investor on behalf of purchasers of Hasbro, Inc. (NASDAQ:HAS) common stock during the period between April 24, 2017 and October 23, 2017 (the "Class Period"). This action was filed in the District of Rhode Island and is captioned City of Warren Police and Fire Retirement System v. Hasbro, Inc., et al., No. 18-cv-00543. The Private Securities Litigation Reform Act of 1995 permits any investor who purchased Hasbro common stock during the Class Period to seek appointment as lead plaintiff. A lead plaintiff acts on behalf of all other class members in directing the litigation. The lead plaintiff can select a law firm of its choice. An investor's ability to share in any potential future recovery is not dependent upon serving as lead plaintiff. If you wish to serve as lead plaintiff, you must move the Court no later than 60 days from today. If you wish to discuss this action or have any questions concerning this notice or your rights or interests, please contact plaintiff's counsel, Samuel H. Rudman or David A. Rosenfeld of Robbins Geller at 800/449-4900 or 619/231-1058, or via e-mail at djr@rgrdlaw.com. You can view a copy of the complaint as filed at http://www.rgrdlaw.com/cases/hasbro/ The complaint charges Hasbro and certain of its officers and directors with violations of the Securities Exchange Act of 1934. Hasbro is a global play and entertainment company that promotes its brands through immersive storytelling across mediums, including television, film, digital and more. Hasbro's biggest customers are Wal-Mart Stores, Inc., Toys "R" Us, Inc. and Target Corporation, which accounted for approximately 18%, 9%, and 9% respectively, of its consolidated net revenues in fiscal year 2016. The complaint alleges that during the Class Period, defendants made false and misleading statements and/or failed to disclose adverse information regarding Hasbro's business and prospects. Specifically, defendants knew or recklessly disregarded that Hasbro's relationship with Toys "R" Us was becoming increasingly important to Hasbro's business, as Toys "R" Us was the primary retail brick-and-mortar toy store in the United States, and that Toys "R" Us was in far worse financial condition than was being publicly reported and it would have to dramatically scale back its operations or file for bankruptcy and liquidate. In addition, Hasbro was experiencing significant undisclosed adverse sales issues in two key markets -- the United Kingdom and Brazil -- which were negatively impacting the Company's efforts to grow sales in those markets. As a result of this information being withheld from the market, the price of Hasbro common stock was artificially during the Class Period to over $115 per share and Hasbro insiders were able to sell $147 million worth of their personally held Hasbro stock to the public at inflated prices. Then on October 23, 2017, Hasbro announced its third quarter 2017 financial results for the period ended October 1, 2017. Hasbro reported that the United States and Canada were negatively impacted by the Toys "R" Us bankruptcy. This contributed to a 5% decline in the U.S. and Canada segment quarterly operating profit to $217.3 million, or 21.9% of net revenues, compared to $228 million, or 24.4% of net revenues in 2016. Hasbro's CEO stated that, "[a]s a result of the Toys "R" Us bankruptcy filing in the U.S. and Canada, there was a negative impact on our quarterly revenues and operating profit." And the Company's CFO warned that the challenges in the U.K. and Brazil were anticipated to continue for the remainder of the year and sales would be up only 4% to 7% from a year ago in the fourth quarter. On this news, the price of Hasbro common stock declined from $92.69 per share to $89.75 per share, a 22% decline from the stock's Class Period high of $115.95 per share. Plaintiff seeks to recover damages on behalf of all purchasers of Hasbro common stock during the Class Period (the "Class"). The plaintiff is represented by Robbins Geller, which has extensive experience in prosecuting investor class actions including actions involving financial fraud. Visit http://www.rgrdlaw.comfor more information. Samuel H. Rudman, Esq. David A. Rosenfeld, Esq. Robbins Geller Rudman & Dowd LLP Telephone: 800-449-4900 Email: djr@rgrdlaw.com SRudman@rgrdlaw.com [GN] HUAZHU GROUP: Glancy Prongay Files Securities Fraud Class Action ---------------------------------------------------------------- National law firm Glancy Prongay & Murray LLP (GPM) on Oct. 8 disclosed that it has filed a class action lawsuit in the United States District Court for the Central District of California on behalf of persons and/or entities that acquired Huazhu Group Limited (Huazhu or the Company) (NASDAQ: HTHT) securities between May 14, 2018 and August 28, 2018, inclusive (the Class Period). Plaintiff pursues claims against the Defendants, under the Securities Exchange Act of 1934. Huazhu investors are hereby notified that they have 60 days from October 8, 2018, to move the Court to serve as lead plaintiff in this action. On August 28, 2018, media outlets reported that Chinese police were investigating a possible leak of client information from Huazhu, stating that nearly 500 million pieces of customer-related information, including registration information, personal data, and booking records, had emerged in an online post. On this news, the Companys share price fell $1.55 per share, or approximately 4.36%, to close at $33.98 per share on August 28, 2018. 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 Companys business, operations, and prospects. Specifically, Defendants failed to disclose to investors: (1) that the Company lacked adequate security measures to protect customer information; (2) that, as a result of the foregoing, the Company would be susceptible to increased litigation risk and higher expenses; (3) that, as a result of the foregoing, the Companys goodwill would potentially suffer, leading to lower revenues; and (4) that, as a result of the foregoing, Defendants positive statements about the Companys 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 Huazhu securities during the Class Period, you may move the Court no later than 60 days from October 8, 2018, 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 wish to learn more about this action, or if you have any questions concerning this announcement or your rights or interests with respect to these matters, please contact Lesley Portnoy, Esquire, of GPM, 1925 Century Park East, Suite 2100, Los Angeles California 90067 at 310-201-9150, Toll-Free at 888-773-9224, by email to shareholders@glancylaw.com, or visit our website at www.glancylaw.com. If you inquire by email please include your mailing address, telephone number and number of shares purchased. [GN] HYCROFT MINING: Class of Shareholders Certified in Canada --------------------------------------------------------- THE CLASS: This Notice is directed to: All persons, other than Excluded Persons, who purchased common shares of Hycroft Mining Corporation ("Hycroft") between May 9, 2013 and May 17, 2013 pursuant to its May 17, 2013 secondary public offering ("SPO") under the Canadian Prospectus, and who continued to hold some or all of those common shares on July 22, 2013 (the "Class" and "Class Member(s)"). Excluded Person means Hycroft, Cormark Securities Inc. and Dundee Securities Ltd.'s subsidiaries, affiliates, officers, directors, senior employees, legal representatives, heirs, predecessors, successors and assigns, and any member of the immediate families of Scott A. Caldwell and Robert M. Buchan (collectively, the "Individual Defendants") and any entity in which any of the foregoing has or had an interest during the distribution period for the Prospectus, or at any time that a document incorporated by reference in the Prospectus was released, and, with respect to the Class definition found at paragraph 1(g) of the Second Fresh as Amended Statement of Claim, means United States citizens or residents who acquired Hycroft's securities in the SPO in a trade under the U.S. prospectus. SUMMARY OF THE LAWSUIT: In 2014, a proposed securities class action was commenced against Hycroft and its former Presidents and Chief Executive Officers, Scott A. Caldwell and Robert M. Buchan, in the Ontario Superior Court of Justice (the "Court"). The lawsuit alleges that Hycroft and the Individual Defendants released documents and made other statements in the period leading up to the SPO and released the Prospectus for the SPO containing misrepresentations about the Company’s business and operations concerning: (1) its ability to process and leach ore placed on Hycroft's Lewis Leach Pad and resulting unreasonable gold-production and cash-cost guidance projections; and (2) the retention of a third-party engineering firm to investigate material problems with the Lewis Leach Pad weeks prior to releasing the Prospectus for the SPO. The lawsuit further alleges that when the Company issued statements correcting these misrepresentations on July 22, August 6, and August 7, 2013, the price of Hycroft's stock declined to reflect the true state of events, thereby harming Class Members. The lawsuit asks the Court to award monetary damages to Class Members for the alleged misrepresentations in Hycroft's public disclosures. If the Plaintiff is successful in its lawsuit, you may be eligible to receive compensation from Hycroft or the Individual Defendants for damage or loss which you may have incurred as a result of the alleged misrepresentations. A copy of the latest version of the Statement of Claim, as well as other legal documents associated with this action, can be found at www.morgantico.com. THE CERTIFICATION ORDER: On October 24, 2017, the Honourable Justice Perell of the Ontario Superior Court of Justice certified the action: LBP Holdings Ltd. v Hycroft Mining Corporation, et al., Court File No.: CV-14-50851300-CP (the "Class Action") as a class proceeding against Hycroft and the Individual Defendants on consent, and appointed LBP Holdings Ltd. as the representative plaintiff. The Class Action has been certified on behalf of the Class (described above) composed of "Class Members" other than Excluded Persons. WHAT DOES CERTIFICATION MEAN: The Certification Order means that the lawsuit may proceed to pre-trial discovery and may eventually advance to trial as a class action on behalf of all Class Members for damages arising out of alleged misrepresentations in certain Hycroft disclosure documents. Certification is a procedural step that defines the form of the litigation, allowing it to be pursued on behalf of the Class. The substance of the litigation (i.e. the allegation that the Defendants made misrepresentations in their public disclosure documents) has not been adjudicated by the Court. The Defendants deny the allegations. WHO IS INCLUDED IN THE LAWSUIT: YOU DO NOT NEED TO DO ANYTHING TO PARTICIPATE IN THE CLASS ACTION Class Members are automatically included in a class action once certified, and you do not need to do anything at this time if you wish to participate in this Class Action. This includes Class Members who reside anywhere in Canada, not just in Ontario. As a Class Member, you will not be required to pay any costs in the event that this Class Action is unsuccessful. YOU MUST OPT-OUT IF YOU DO NOT WANT TO BE BOUND BY THE OUTCOME OF THE CLASS ACTION Class Members who wish to pursue their own action or who do not want to be bound by the outcome of the Class Action MUST OPT-OUT of the Class Action. If you want to opt-out of the Class Action, you must send an OPT-OUT FORM stating that you elect to opt-out of the Class in the Hycroft Mining Corporation Class Action. The Opt-Out Form is available at www.morgantico.com, or by calling Morganti & Co., P.C. at (647) 344-1900. Any Class Member who wishes to opt-out of the Class Action shall deliver a completed Opt-Out Form by email to hdavarinia@morgantilegal.com or by regular mail or courier to: Morganti & Co., P.C. One Yonge Street, Suite 1506 Toronto Ontario, M5E 1E5 The Opt-Out Form must be postmarked if sent by mail, or received if sent by e-mail or courier, on or before November 30, 2018 at 5:00pm E.S.T. Each Class Member who does not opt-out of the Class Action will be bound by the terms of any judgement or settlement, whether favourable or not, and will not be allowed to pursue an independent action. If the Class Action is successful, you may be entitled to share in the amount of any award or settlement recovered. In order to determine if you are entitled to share in the award or settlement and the amount, if any, of your share, it may be necessary to conduct an individual determination. There may be costs payable by you if you submit a claim and it is determined that you are not entitled to share in the award or settlement. You will have the opportunity to decide if you wish to proceed with your individual entitlement determination before it begins. No person may opt-out a minor or mentally incapable Member of the Class without permission of the courts after notice to the Children's Lawyer and/or the Public Guardian and Trustee, as appropriate. If you wish to pursue other claims against the Defendants relating to the matters at issue in the Class Action, you should immediately seek independent legal advice. If you do not exclude yourself from participating in this Class Action, all of your claims relating to the subject matter of this litigation will be determined by the result obtained in the Class Action, whether by settlement or judgement. Please see the "Additional Information" section for directions to obtain further detail on the scope of the certified Class Action and the claims that will be advanced against the Defendants. CLASS COUNSEL AND LEGAL FEES: The Plaintiff and the Class in this Class Action are represented by Morganti & Co., P.C. ("Class Counsel"). Morganti & Co., P.C. is acting on a contingency basis, such that legal fees, disbursements and applicable taxes will only be payable in the event of success in the Class Action. Morganti & Co., P.C. is also paying all disbursements incurred in the Class Action, subject to reimbursement in the event of success. In the event of success in the Class Action, Class Counsel will make a motion to the Court to have their fees and disbursements approved. As stated above, as a Class Member, you will not be required to pay any costs in the event that the Class Action is unsuccessful. ADDITIONAL INFORMATION: This Notice was approved by the Ontario Superior Court of Justice. The Court office cannot answer any questions about the matters in this Notice. The order of the Court and other information are available at www.morgantico.com. Questions relating to the Class Action should be directed by email or telephone to Class Counsel: Contact: Morganti & Co., P.C. Attn: Hadi Davarinia, Esq. One Yonge Street, Suite 1506 Toronto Ontario, M5E 1E5 Telephone: 647-344-1900 ext. 5 Website: www.morgantico.com. Email: hdavarinia@morgantilegal.com Personal Legal Advice: Class Members who seek the advice or guidance of their personal lawyers may do so at their own expense. The publication of this notice was authorized by the Ontario Superior Court of Justice. Questions about this Notice should NOT be directed to the Court. Contacts: Hadi Davarinia, Esq. Morganti & Co., P.C. Email: hdavarinia@morgantilegal.com [GN] IMPINJ INC: Robbins Arroyo Files Securities Fraud Suit ------------------------------------------------------ Shareholder rights law firm Robbins Arroyo LLP disclosed that purchasers of Impinj, Inc. (NasdaqGS: PI) have filed a class action complaint against the company's officers and directors for alleged violations of the Securities Exchange Act of 1934 between November 3, 2016 and February 15, 2018. Impinj operates a platform that enables wireless connectivity to everyday items by delivering each item's unique identity, location, and authenticity to business and consumer applications. View this information on the law firm's Shareholder Rights Blog: https://www.robbinsarroyo.com/impinj-inc-oct-2018/ Impinj Accused of Misleading Investors Regarding Product Demand According to the complaint, Impinj told investors that the company was increasing inventory levels to meet rising market demands. In reality, the increased sales Impinj boasted about were the result of customers temporarily purchasing more inventory to account for longer production lead times. On August 3, 2017, the company reduced its full-year forecasts, projecting approximately half the growth of its endpoint ICs from what it provided the prior quarter, blaming customers' delayed expansion as opposed to decline in demand. Then, on November 1, 2017, the company lowered fourth quarter guidance due to "a decline in endpoint IC demand" attributable to customers "adjusting from a transition where we had constrained supply and long lead times to us having a buffer stock in short lead times now." This news caused the price of Impinj stock to decline approximately 34%. On February 1, 2018, Impinj pre-announced its fourth quarter 2017 earnings, disclosing a revenue miss, causing its stock to drop nearly 47%. After the company's February 15, 2018, earnings call noted a reduction in order backlog and a further reduction in inventory by Impinj's partners, the stock fell another 18%. Impinj Shareholders Have Legal Options Concerned shareholders who would like more information about their rights and potential remedies can contact attorney Leonid Kandinov at (800) 350-6003, LKandinov@robbinsarroyo.com, or via the shareholder information form on the firm's website. Robbins Arroyo LLP -- http://www.robbinsarroyo.com-- is a nationally recognized leader in shareholder rights law. The firm represents individual and institutional investors in shareholder derivative and securities class action lawsuits, and has helped its clients realize more than $1 billion of value for themselves and the companies in which they have invested. [GN] INSURANCE SERVICES: Lap Seeks to Stop Sending of Unwanted Fax Ads ----------------------------------------------------------------- LAP DISTRIBUTORS, INC., a Pennsylvania corporation, individually and on behalf of all others similarly situated v. INSURANCE SERVICES FOR YOU INC., a Delaware corporation, Case No. 1:18-cv-01267-TSE-IDD (E.D. Va., October 8, 2018), seeks to stop the Defendant's alleged practice of sending unauthorized and unwanted fax advertisements, in violation of the Telephone Consumer Protection Act. Insurance Services is a corporation incorporated and existing under the laws of the state of Delaware and maintains its principal office in Fairfax, Virginia 22030. Insurance Services is a national company that markets health insurance plans for individuals, families, and small businesses.[BN] The Plaintiff is represented by: Matthew B. Kaplan, Esq. THE KAPLAN LAW FIRM PLLC 1100 N Glebe Rd., Suite 1010 Arlington, VA 22201 Telephone: (703) 665-9529 E-mail: MBKaplan@thekaplanlawfirm.com - and - Adam T. Savett, Esq. SAVETT LAW OFFICES LLC 2764 Carole Lane Allentown, PA 18104 Telephone: (610) 621-4550 Facsimile: (610) 978-2970 E-mail: adam@savettlaw.com JIA XING: Settlement in Kang FLSA Suit Has Court Approval --------------------------------------------------------- In the case, QI JUN KANG, Plaintiff, v. JIA XING 39th INC., et al., Defendants, Case No. 18 Civ. 1 (HBP) (S.D. N.Y.), Judge Henry Pitman of the U.S. District Court for the Southern District of New York granted the parties' joint application to approve their settlement. On Sept. 11, 2018, the Judge presided over a settlement conference attended by the parties and their counsel at which a settlement was reached. The matter is now before the Court on the parties' joint application to approve their settlement. The Plaintiff, who alleges that he worked at the Defendants' restaurant, brought the action under the Fair Labor Standards Act ("FLSA"), and the New York Labor Law ("NYLL"). The Plaintiff claims that the Defendants failed to pay him the minimum wage during his employment and failed to pay him overtime premium pay. He also asserts claims based on the Defendants' alleged failure to maintain certain payroll records and to provide certain notices as required by the NYLL. He claims that he is entitled to a total of approximately $34,000 in damages, plus attorney's fees. He calculates his total unpaid wages and overtime pay to be approximately $11,000. The Defendants dispute all of the Plaintiff's claims. Although the Plaintiff claims that he worked for the Defendants for six days a week from January through July 2015, the Defendants claim that the Plaintiff worked a total of only 23 days over 7 weeks during that period. They claim that the total amount of any unpaid wages or overtime is negligible. Following a protracted discussion at the settlement conference of the strengths and weaknesses of the parties' respective positions, the parties agreed to resolve the dispute for the total amount of $11,000, to be paid thirty days after the entry of an Order approving the settlement. The parties also agreed that an amount between $500 and $600 will be paid to the Plaintiff's counsel to reimburse her for the filing fee and the cost of service and that one-third of the remainder -- an amount between $10,400 and $10,500 -- will be paid to the Plaintiff's counsel as a fee. The net remainder -- approximately $6,966.67 -- will be paid to the Plaintiff. Judge Pitman finds that the FLSA settlement is appropriate. First, the total settlement represents approximately all of the Plaintiff's allegedly unpaid wages and overtime pay, exclusive of pre-judgment interest and liquidated damages. Given the risks these issues present, the settlement amount is reasonable. Second, the settlement will entirely avoid the expense and aggravation of litigation. Third, the settlement will enable the Plaintiff to avoid the risk of litigation. Fourth, because he presided over the settlement conference that immediately preceded the Plaintiff's acceptance of the settlement, he knows that the settlement is the product of arm's-length bargaining between experienced counsel. Fifth, there are no factors here that suggest the existence of fraud. Finally, the settlement provides that 33.3% of the net settlement fund -- approximately $3,483 -- will be paid to the Plaintiff's counsel as a contingency fee. Accordingly, for all the foregoing reasons, Judge Pitman approves the settlement in the matter. In light of the settlement, the action is dismissed with prejudice and without costs. The Clerk is respectfully requested to mark the matter closed. A full-text copy of the Court's Sept. 21, 2018 Opinion and Order is available at https://is.gd/fZw5GV from Leagle.com. Qi Jun Kang, individually and on behalf of all other employees similarly situated, Plaintiff, represented by Keli Liu -- kliu@hanglaw.com -- Hang & Associates, PLLC. Jia Xing 39th Inc., Li Xing Inc., Xing Wong Gourmet Inc., Xing Yue Inc., Cheng Zhong Huang, Zheng Jing Huang, Xing Huang, Liao Lili & Xue Yan Wang, Defendants, represented by Joey Tsai -- dmin@tsaipllc.com -- Tsai PLLC. JOY GLOBAL: Settlement in Duncan Suit Has Prelim Approval --------------------------------------------------------- In the case, STEVEN DUNCAN, et al., Individually and on Behalf of All Others Similarly Situated, Plaintiffs, v. JOY GLOBAL INC., et al., Defendants, Case No. 16-cv-1229-pp (E.D. Wis.), Judge Pamela Pepper of the U.S. District Court for the Eastern District of Wisconsin granted the parties' motions to preliminarily approve the settlement agreement. The Plaintiffs filed the class-action complaint on Sept. 13, 2016, alleging a breach of fiduciary duties and violations of Sections 14 (a) and 20(A) of the Securities Exchange Act. Dkt. They filed an amended complaint on April 26, 2017. The Defendants filed a motion to dismiss the amended complaint. Post-briefing -- while the Court had the motion under advisement -- the parties informed the Court that they had reached a settlement agreement. On May 23, 2018, the parties filed an unopposed motion for preliminary approval of settlement agreement, along with a proposed order. The Court somehow missed this in the press of its docket, and failed to act. So the parties filed another motion, and provided the Court with an amended proposed order. Judge Pepper has read and considered the settlement agreement and the attached exhibits. She granted the parties' motions to preliminarily approve the settlement agreement. The Final Approval Hearing is set for Dec. 20, 2018 at 2:00 p.m. Under Rules 23(a) and (b)(3) of the Federal Rules of Civil Procedure, and for purposes of the settlement only, the Judge preliminarily certified the litigation as a class action on behalf of all those who purchased, sold or held Joy Global common stock during the period from and including Sept. 1, 2016, the record date for Joy Global's special stockholder meeting regarding the acquisition of Joy Global by Komatsu Ltd. and certain of its subsidiaries, through and including April 5, 2017, the date the Acquisition closed. The Judge appointed the Lead Plaintiffs as the class representatives; Robbins Geller Rudman 85 Dowd LLP and Bronstein, Gewirtz 85 Grossman, LLC as the Lead Counsel; and the firm of Gilardi 85 Co., LLC as the Claims Administrator. She approved the form, substance, and requirements of the Notice of Pendency and Proposed Settlement of Class Action and Proof of Claim and Release; and the form of the summary notic. The Judge ordered that the Claims Administrator (i) will make reasonable efforts to identify all Persons who are Members of the Class and not later than seven calendar days after the court signs and enters the Order (the "Notice Date"), and (ii) will commence mailing of the Notice and Proof of Claim and Release to the Class Members. Not later than 10 calendar days after the Notice Date, the Claims Administrator will cause the Summary Notice to be published once in the national edition of The Wall Street Journal and once over a national newswire service. She also ordered that not later than seven business days prior to the Final Approval Hearing, the Lead Counsel will serve on the Defendants' Counsel and file with the court proof, by affidavit or declaration, of such mailing and publishing. Those Nominees who held, purchased or acquired Joy Global common stock for the benefit of another Person during the Class Period will be requested to send the Notice and Proof of Claim and Release to such beneficial owners of Joy Global common stock within 15 calendar days after receipt thereof, or, send a list of the names and addresses of such beneficial owners to the Claims Administrator within 15 calendar days of receipt thereof, in which event the Claims Administrator will promptly mail the Notice and Proof of Claim and Release to such beneficial owners. The date and time of the Final Approval Hearing will be included in the Notice and Summary Notice before they are mailed and published, respectively. All fees, costs, and expenses incurred in notifying Class Members will be paid from the Settlement Fund and in no event will any of the Defendants or Related Parties bear any responsibility for such fees, costs or expenses. The Lead Counsel will provide to the Defendants' Counsel copies of all Requests for Exclusion and a list of all Class Members who have requested exclusion, and any written revocation of Requests for Exclusion, as expeditiously as possible and in any event no later than 17 calendar days prior to the Final Approval Hearing. All funds held by the Escrow Agent will be deemed and considered to be in custodia legis of the Court, and will remain subject to the jurisdiction of the Court, until such time as such funds will be distributed pursuant to the Stipulation and/or further order(s) of the court. Judge Pepper directed that all papers in support of the settlement, Plan of Allocation, and any application by the Lead Counsel for attorneys' fees and expenses and payment of time and expenses to the Lead Plaintiffs will be filed and served no later than 35 calendar days prior to the Final Approval Hearing and any reply papers will be filed and served no later than seven calendar days prior to the Final Approval Hearing. At or after the Final Approval Hearing, the court will determine whether the Plan of Allocation proposed by Lead Counsel, and any application for attorneys' fees and expenses, should be approved. All reasonable expenses incurred in identifying and notifying Class Members as well as administering the Settlement Fund will be paid as set forth in the Stipulation. The Judge stayed all proceedings in the Litigation until further order of the Court. A full-text copy of the Court's Sept. 14, 2018 Order is available at https://is.gd/wpoSQH from Leagle.com. Steven Duncan, Lead Plaintiff, represented by David T. Wissbroecker -- DWissbroecker@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, Edward M. Gergosian, Robbins Geller Rudman & Dowd LLP, Frank J. Johnson -- FrankJ@JohnsonFistel.com -- Johnson & Weaver LLP, Shimon Yiftach -- shimony@bgandg.com -- Bronstein Gewirtz & Grossman LLC, William Scott Holleman -- ScottH@JohnsonFistel.com -- Johnson & Weaver LLP, David A. Knotts -- dknotts@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, Peretz Bronstein -- peretz@bgandg.com -- Bronstein Gewirtz & Grossman LLC, Philip C. Babler -- pcbabler@foley.com -- Foley & Lardner LLP & K. Scott Wagner -- ksw@wagner-lawgroup.com -- Mallery & Zimmerman SC. Charles Caparelli & Peter Cahill, Lead Plaintiffs, represented by David T. Wissbroecker, Robbins Geller Rudman & Dowd LLP, Edward M. Gergosian, Robbins Geller Rudman & Dowd LLP, Frank J. Johnson, Johnson & Weaver LLP, Shimon Yiftach, Bronstein Gewirtz & Grossman LLC, William Scott Holleman, Johnson & Weaver LLP, David A. Knotts, Robbins Geller Rudman & Dowd LLP, Eugene Bykhovsky, Bykhovsky Law LLC, Peretz Bronstein, Bronstein Gewirtz & Grossman LLC, Philip C. Babler, Foley & Lardner LLP & K. Scott Wagner, Mallery & Zimmerman SC. Joy Global Inc, Defendant, represented by Catherine B. Schumacher -- catherine.schumacher@arnoldporter.com -- Arnold & Porter Kaye Scholer LLP, Daphne Morduchowitz -- daphne.morduchowitz@arnoldporter.com -- Arnold & Porter Kaye Scholer LLP, Elissa J. Preheim -- elissa.preheim@arnoldporter.com -- Arnold & Porter Kaye Scholer LLP, Kate E. Gehl -- kgehl@foley.com -- Foley & Lardner LLP, Philip C. Babler -- pcbabler@foley.com -- Foley & Lardner LLP, Thomas L. Shriner, Jr. -- tshriner@foley.com -- Foley & Lardner LLP, Vincent A. Sama -- vincent.sama@arnoldporter.com -- Arnold & Porter Kaye Scholer LLP & Bryan B. House -- bhouse@foley.com -- Foley & Lardner LLP. Edward L Doheny, II, John Nils Hanson, Steven L Gerard, Mark J Gliebe, John T Gremp, Gale E Klappa, Richard B Loynd, P Eric Siegert & James H Tate, Defendants, represented by Kate E. Gehl, Foley & Lardner LLP, Peter C. Hein, Wachtell Lipton Rosen & Katz, Philip C. Babler, Foley & Lardner LLP, Thomas L. Shriner, Jr., Foley & Lardner LLP & Bryan B. House, Foley & Lardner LLP. JPMORGAN CHASE: Employees File Class Action Over 401(k) Plan ------------------------------------------------------------ Jacklyn Wille, writing for Bloomberg BNA, reports that a proposed class action challenging the funds in JPMorgan Chase & Co.'s 401(k) plan could involve the retirement benefits of about 300,000 people, court documents show. The JPMorgan employees who filed suit in 2017 asked a federal judge on Oct. 1 to certify their case as a class action. The proposed class contains between 266,439 and 301,076 people who had assets in JPMorgan's 401(k) plan, the employees said in their motion. The lawsuit claims JPMorgan and its affiliates profited at the expense of workers' retirement savings by filling the company's 401(k) plan with funds managed by JPMorgan or by affiliated entities like BlackRock Institutional Trust Co. Judge Jesse M. Furman of the U.S. District Court for the Southern District of New York in March issued a one-paragraph order allowing most of the lawsuit to proceed over the bank's motion to dismiss. Dozens of recent cases have challenged financial companies that offer affiliated funds in their 401(k) plans, with workers claiming these funds carry higher fees and perform worse than unaffiliated funds. The lawsuits so far have been largely allowed to advance, except in cases against Wells Fargo, Capital Group, and Putnam Investments. Financial giants such as Deutsche Bank, Allianz SE, TIAA, New York Life Insurance Co., and Principal Life Insurance Co. have settled. JPMorgan's 401(k) plan had more than $27 billion in assets in 2017, making it one of the largest plans targeted in this litigation wave. The employees are represented by Kessler Topaz Meltzer & Check LLP, Nichols Kaster PLLP, Keller Rohrback LLP, Robbins Geller Rudman & Dowd LLP, and Levi & Korinsky LLP. JPMorgan is represented by Skadden Arps Slate Meagher & Flom LLP. The case is Beach v. JPMorgan Chase Bank, S.D.N.Y., No. 1:17-cv-00563-JMF, motion for class certification 10/1/18. [GN] KERYX BIOPHARMACEUTICALS: Corwin Sues Over Akebia Merger -------------------------------------------------------- GREGORY CORWIN, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. KERYX BIOPHARMACEUTICALS, INC., KEVIN J. CAMERON, MARK J. ENYEDY, STEVEN C. GILMAN, MICHAEL T. HEFFERNAN, JODIE MORRISON, DANIEL P. REGAN, and MICHAEL ROGERS, Defendants, Case No. 1:18-cv-01589-UNA (D. Del., Oct. 16, 2018) is a class action against Keryx and the members of the Company’s board of directors for their violations of the Securities Exchange Act of 1934 in connection with the acquisition of Keryx by Akebia Therapeutics, Inc. On June 28, 2018, Keryx, Akebia, and Alpha Therapeutics Merger Sub, Inc., a wholly owned subsidiary of Akebia, entered into an Agreement and Plan of Merger. To convince Keryx's public common shareholders to vote in favor of the Proposed Transaction, Defendants authorized the filing of a materially incomplete and misleading Registration Statement on a Form S-4 with the SEC, in violation of Sections 14(a) and 20(a) of the Exchange Act, says the complaint. In particular, the Proxy contains materially incomplete and misleading information concerning: (i) financial projections for Keryx; (ii) the valuation analyses conducted by MTS Securities, LLC an affiliate of the Company's financial advisor, MTS Health Partners, L.P., in support of its fairness opinion; and (iii) the Board's potential conflict of interest. The special meeting of Keryx's public common shareholders to vote on the Proposed Transaction is forthcoming. It is imperative that the material information that has been omitted from the Proxy is disclosed to the Company's shareholders prior to the forthcoming shareholder vote so that they can properly exercise their corporate suffrage rights, says the Plaintiff. For these reasons, the Plaintiff asserts claims against Defendants for violations of Sections 14(a) and 20(a) of the Exchange Act and Rule 14a-9. Plaintiff seeks to enjoin Defendants from taking any steps to consummate the Proposed Transaction unless and until the material information is disclosed to Keryx's public common shareholders sufficiently in advance of the upcoming shareholder vote or, in the event the Proposed Transaction is consummated, to recover damages resulting from the Defendants' violations of the Exchange Act. The Plaintiff is a shareholder of Keryx common stock. Defendant Keryx is a Delaware corporation with its principal executive offices at One Marina Park Drive, 12th Floor, Boston, Massachusetts 02210. Keryx is a commercial stage biopharmaceutical company focused on bringing innovative medicines to people with kidney disease. The individual defendants are directors and officers of Keryx. 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 Tel.: (302) 984-3800 Email: bbennett@coochtaylor.com - and - Juan E. Monteverde, Esq. MONTEVERDE & ASSOCIATES PC The Empire State Building 350 Fifth Avenue, Suite 4405 New York, NY 10118 Tel.: (212) 971-1341 Fax: (212) 202-7880 Email: jmonteverde@monteverdelaw.com KINDRED HEALTHCARE: Bryce Suit Removed to C.D. California --------------------------------------------------------- The class action styled as Jeffrey Bryce individually, and on behalf of all others similarly situated, Plaintiff v. Kindred Healthcare Operating, Inc., newly converted to Kindred Healthcare Operating, LLC, THC-Orange County, LLC a California limited liability corporation, as separate entities erroneously sued as THC-Orange County, LLC and THC-Orange County, Inc., Does 1-100, Defendants, Case No. BC722120, was removed from the Los Angeles County Superior Court, to the U.S. District Court for the Central District of California on October 18, 2018, and assigned Case No. 2:18-cv-09019-SJO-FFM. The nature of suit is stated as Civil Rights and was filed for Employment Discrimination. Kindred Healthcare Operating, Inc. owns, operates, and manages Cordova Rehabilitation and Nursing Center. It was formerly known as Vencor Operating, Inc. and it changed its name to Kindred Healthcare Operating, Inc. in April 2001. THC - Orange County, Inc. operates as a subsidiary of Kindred Healthcare Operating, Inc.[BN] The Plaintiff is represented by: Danny Yadidsion, Esq. Labor Law PC 100 Wilshire Boulevard Suite 700 Santa Monica, CA 90401 Phone: (213) 689-0404 Fax: (877) 775-2267 Email: danny@laborlawpc.com The Defendants are represented by: Jyoti Mittal, Esq. Littler Mendelson PC 2049 Century Park East 5th Floor Los Angeles, CA 90067-3107 Phone: (310) 553-0308 Fax: (310) 553-5583 Email: jmittal@littler.com - and - Elizabeth Staggs Wilson, Esq. Littler Mendelson PC 633 West Fifth Street 63rd Floor Los Angeles, CA 90071 Phone: (213) 443-4300 Fax: (213) 443-4299 Email: estaggs-wilson@littler.com - and - James Elliot Bangert Payer, Esq. Littler Mendelson PC 633 West 5th Street 63rd Floor Los Angeles, CA 90071 Phone: (213) 443-4300 Fax: (213) 443-4299 Email: jpayer@littler.com - and - Maggy Mokhles Athanasious, Esq. Littler Mendelson PC 2049 Century Park East 5th Floor Los Angeles, CA 90067-3107 Phone: (310) 553-0308 Fax: (310) 553-5583 Email: mathanasious@littler.com KKW TRUCKING: $550K Deal in Demmings FCRA Suit Has Final Approval ----------------------------------------------------------------- In the case, RODERICK DEMMINGS, on behalf of himself and all others similarly situated, Plaintiff, v. KKW TRUCKING, INC., Defendant, Case No. 3:14-cv-0494-SI (D. Or.), Judge Michael H. Simon of the U.S. District Court for the District of Oregon (i) granted the Plaintiff's motion for final approval of the Settlement Agreement, and (ii) granted in part his motion for fees and costs. The case is a class action under Rule 23 of the Federal Rules of Civil Procedure brought by Demmings individually and on behalf of others similarly situated. The Plaintiff alleges that Defendant KKW violated the Fair Credit Reporting Act ("FCRA"). He alleges that KKW obtained consumer reports without providing proper notice or obtaining appropriate consent and took adverse action against Class Members based on the content of the consumer reports without providing appropriate notice. On March 25, 2014, Neil C. Scott filed the original complaint in this case, on behalf of himself and all others similarly situated. On June 12, 2015, the complaint was amended to add Roderick C. Demmings as a named Plaintiff and purported class representative. Mr. Scott later withdrew as a named Plaintiff, leaving only Mr. Demmings. Mr. Demmings filed his Second Amended Complaint on Nov. 9, 2016. KKW filed a motion to dismiss, primarily based on standing and the Supreme Court's decision in Spokeo, Inc. v. Robins. The Court denied KKW's motion, primarily based on the Ninth Circuit's then-recent decision in Syed v. M-I, LLC. The Court found the reasoning of Syed to be persuasive and that the provisions under which the Plaintiff brought his claims created similar rights to information and privacy. The parties engaged in formal discovery. KKW provided the Class Counsel with thousands of pages of documents. These documents included, among other things, its hiring practices, the applicants who were the subject of Consumer Reports during the Class Period, and the documents used by KKW to obtain applicants' Consumer Reports. The parties conducted depositions. The parties also participated in three mediations. The first mediation took place on March 30, 2015, with Jeff Batchelor in Portland, Oregon. The second mediation occurred on Nov. 2, 2015, with Judge Terry Lukens in Seattle, Washington. The third mediation was on Nov. 10, 2017, with Rodney Max in Los Angeles, California. The parties continued to discuss settlement after the third mediation with the assistance of Mr. Max. The parties first negotiated a $330,000 "Class Recovery Fund" to pay the Class Members, the settlement administrative fees, the incentive award for the Class Representative, and approved litigation costs up to $50,000. The parties then separately negotiated a $220,000 amount to pay attorney's fees, with the understanding that any amount not awarded by the Court to counsel would go the Class Recovery Fund. The $550,000 total comprises the Settlement Fund. On March 30, 2018, the Plaintiff filed an unopposed motion for preliminary approval of class action settlement. The Court denied the motion on April 16, 2018, identifying a number of issues, concerns, and deficiencies raised by the proposed settlement agreement and notice process. After the Court's denial of the first motion for preliminary approval, the parties participated in further negotiations and reached the Amended Stipulation. On May 17, 2018, the Plaintiff filed a renewed motion for preliminary approval. The Court granted the motion, preliminarily approving the Amended Stipulation and the Settlement Class; appointing Matthew A. Dooley, Anthony R. Pecora, and Justin Baxter as Class Counsel; authorizing the Class Counsel to hire a third-party claims administrator; approving the Class Notice for distribution; and requiring that the Class Notice be mailed and posted on the internet on a website dedicated to the settlement. The Court also set deadlines for opting out of the Settlement Class and objecting to the Settlement Agreement or proposed attorney's fees and incentive award. The Class Counsel hired Dahl Administration, LLC as the claims administrator. Dahl mailed the Class Notice to all 942 Class Members. The post office returned 118 notices as undeliverable and 851 Class Members received the Class Notice. These actions sufficiently notified the Class Members of the proposed settlement of the alleged FCRA violations, the proposed attorney's fees and incentive awards, the right to opt out of the settlement, the right to object to the Settlement Agreement or fee or incentive awards, the process and deadline for lodging an objection, that a final approval hearing on the proposed settlement was scheduled for Sept. 5, 2018, and the process and deadline for requesting participation in the final approval hearing. The Plaintiff also filed his unopposed motions for Final Approval of Class Action Settlement and for Attorney's Fees, Costs, and Service Award before the deadline for objections. Only six Class Members opted-out of the Settlement Class. No objections were filed to the Amended Stipulation, proposed attorney's fees or expenses, or proposed incentive award. After considering the relevant factors and circumstances, Judge finds that the Amended Stipulation is fair, reasonable, and adequate to the Class Members and that each Class Member (except those six who have timely submitted a valid request for exclusion) will be bound by the Amended Stipulation and the Opinion and Order. The six individuals who have timely requested exclusion from the Settlement Class are not Class Members, will have no rights or interests with respect to the Amended Stipulation, and will not be bound by any orders or judgments entered in respect to the Amended Stipulation. They are identified in the Opt-Out list that was filed in the case. Considering all of the factors, the Judge finds that an upward departure to 30% of the common fund is appropriate in the case. The Judge acknowledges that this results in a greater negative multiplier than the 40% fee requested by the Plaintiff. At the Plaintiff's requested 40 award of $220,000, the negative multiplier would be 0.6763. The 30% award of $165,000 results in a negative multiplier of 0.5072. Nonetheless, he finds that the fee of $165,000 is fair, reasonable, and adequate compensation given all of the circumstances of the case. The Judge will award attorney expenses in the amount of $18,908.50. He finds these expenses have been reasonably and necessarily incurred and are recoverable from the proceeds of the common fund. Finally, the Judge finds that the requested costs in the amount of $10,338 have been reasonably and necessarily incurred and are recoverable from the proceeds of the common fund. Further, payment of these costs was already factored into the allocation and communicated to the Class Members. For these reasons, Judge Simon granted the Plaintiff's unopposed motion for Final Approval of Class Action Settlement, and granted in part the Plaintiff's unopposed motion for Attorney's Fees, Costs and Service Award. The Plaintiff is awarded $165,000 in attorney's fees. The remaining funds set aside for attorney's fees will revert to the Class Recovery Fund. The Plaintiff is additionally awarded, to be paid from the Class Recovery Fund, the following: $18,908.50 in attorney expenses; $7,500 to the Class Representative as an incentive award; and $10,338 to pay the claims administrator. The case is dismissed, but the Court retains jurisdiction over the parties and all matters relating to the Lawsuit and the Amended Stipulation, including the administration, interpretation, construction, effectuation, enforcement, and consummation of the settlement and this Opinion and Order. A full-text copy of the Court's Sept. 19, 2018 Opinion and Order is available at https://is.gd/64qB4Y from Leagle.com. Roderick Demmings, on Behalf of Himself and All Others Similarly Situated, Plaintiff, represented by Justin M. Baxter -- justin@baxterlaw.com -- Baxter & Baxter, LLP & Matthew A. Dooley -- mdooley@omdplaw.com -- at O'Toole McLaughlin Dooley & Pecora Co. KKW Trucking, Inc., Defendant, represented by Adam E. Brauner -- abrauner@littler.com -- Littler Mendelson, PC, Chad J. Kaldor -- ckaldor@littler.com -- Little Mendelson PC, pro hac vice, Rod M. Fliegel -- rfliegel@littler.com -- Little Mendelson PC, pro hac vice & LeiLani J. Hart -- lhart@littler.com -- Littler Mendelson, PC. LIVING INTENTIONS: Ruiz Files Class Suit Over Product Mislabeling ----------------------------------------------------------------- CHARID RUIZ, individually, and on behalf of all others similarly situated v. LIVING INTENTIONS, LLC, Case No. 1:18-cv-09200 (S.D.N.Y., October 8, 2018), is a consumer protection action arising out of the alleged deceptive and otherwise improper business practices that the Company engages in with respect to the labeling of their Activated Superfood Nut Blend White Chocolate. According to the complaint, the Product is advertised and sold to mislead consumers into believing that it contains white chocolate, when in fact, it does not, the Plaintiff alleges. The Product is marketed extensively throughout the United States, numerous retail stores, and on the Defendant's online Web sites. Living Intentions, LLC, is a limited liability company organized under the laws of California, with its headquarters in Richmond, California. The Defendant distributes, markets and sells their Product throughout the 50 states and the District of Columbia.[BN] The Plaintiff is represented by: C.K. Lee, Esq. Anne Seelig, Esq. LEE LITIGATION GROUP, PLLC 30 East 39th Street, Second Floor New York, NY 10016 Telephone: (212) 465-1188 Facsimile: (212) 465-1181 E-mail: cklee@leelitigation.com MACMAHON HOLDINGS: Settles Class Action for $6.7MM -------------------------------------------------- Rachael Jones, writing for Finance News Network, reports that underground mining company Macmahon Holdings (ASX:MAH) has reached an agreement to settle the class action proceedings that started against them in the Federal Court of Australia in November 2015. The proceedings related to market disclosures by Macmahon in 2012 regarding a construction project in that year. Macmahon's Chairman, Mr Jim Walker, said: "The decision to settle was a purely commercial matter, taken in the best interests of our shareholders. He said Macmahon continues to deny any wrongdoing in this matter and it is important to note that the settlement is not an admission of any liability, nor a finding against the company or any individuals." Macmahon will pay $6.7 million in full and final settlement of the proceedings, inclusive of interest and the applicant's legal costs. [GN] MACY'S RETAIL: Can Compel Arbitration in Davis FLSA Suit -------------------------------------------------------- In the case, Andrew Davis, on behalf of himself and all others similarly situated, Plaintiff, v. Macy's Retail Holdings, Inc., a/k/a Macy's Inc., Defendant, Civil No. 3:17-cv-1807 (JBA) (D. Conn.), Judge Janet Bond Arterton of the U.S. District Court for the District of Connecticut granted the Defendant's motion to stay all claims and compel individual arbitration based on an arbitration agreement to which the Plaintiff and the Defendant are parties. Davis brings suit against his former employer Macy's individually and as a collective action under the Fair Labor Standards Act ("FLSA"), alleging failure to properly compensate the Plaintiff and other similarly situated employees for hours worked in excess of 40 hours per week (Count One), and as a class action pursuant to Fed. R. Civ. P. 23(a) and (b)(3) alleging unlawful classification of the Plaintiff and the members of the Class as exempt employees and failure to pay proper overtime compensation under the Connecticut Minimum Wage Act (Count Two). The Defendant uses a four-step employment dispute resolution program called "Solutions InSTORE." The first three steps are internal, but the fourth step is binding arbitration administered by the American Arbitration Association ("AAA"). Within 30 days of hire, employees must choose whether they wish to participate in the arbitration step in any future employment disputes. If employees want to retain their right to litigate in court, they must complete an election form provided by Defendant and mail it to Solutions InSTORE, postmarked within thirty days of hire. If they agree to resolve any future disputes by arbitration under the InSTORE program and relinquish their right to litigate those disputes in court, the employee simply refrains from completing and returning the election form within the 30-day period. The Plaintiff electronically signed the acknowledgement form when he was hired, but subsequently did not return a completed election form opting out of the arbitration step. The Defendant moves to stay all claims and compel individual arbitration based on an arbitration agreement to which the Plaintiff and the Defendant are parties. It maintains that the Court should compel arbitration because the InSTORE program materials constitute a valid agreement to arbitrate employment disputes which covers the FLSA and Connecticut Minimum Wage Act claims asserted by the Plaintiff. The Plaintiff maintains that the purported arbitration agreement is not an enforceable contract and that there exist such grounds at law or in equity for the revocation of the agreement under the savings clause of the FAA. Specifically, he argues that any assent to the agreement was induced by the Defendant's fraudulent misrepresentations. The Plaintiff does not dispute that the agreement covers the asserted claims. Judge Arterton finds that the Defendants' documents plainly state the terms of the InSTORE Program. Although the InSTORE program materials emphasize the benefits of arbitration while minimizing the consequences in a manner somewhat akin to an advertisement, and although certain phrases in those materials might better have been avoided, those rhetorical choices do not render the materials so incomprehensible or ambiguous that they constitute an invalid offer. Davis signed the acknowledgement form, reflecting his understanding that if he did nothing, i.e., if he did not return the election form within 30 days of his hire date, he would be agreeing to resolve all future disputes in arbitration. Thus, the Judge finds that the Plaintiffs circumstance is not, as he argues, the same as a person receiving an unsolicited item in the mail, doing nothing about it, and then receiving an invoice from the sender. While the Plaintiff was silent, he was specifically informed of the consequence of silence and the Court finds his inaction to constitute acceptance. The Judge holds that the arbitration agreement is supported by valid consideration as it requires both parties to arbitrate employment-related disputes. That the Defendant was free to unilaterally modify or cancel the InSTORE program with 30 days' notice to employees does not invalidate that consideration because, upon cancellation or modification, the arbitration obligation still applies to all claims arising during the notification period. The Plaintiff, therefore, cannot avoid arbitration on the grounds that the agreement is not supported by consideration. As to other grounds of unenforceability, the Judge finds that because there is no evidence that the Defendant was then aware of any falsity in its representation, the Plaintiff's fraudulent misrepresentation defense fails as to the ACLU endorsement even if the representation was false and induced the Plaintiffs reliance. The Plaintiff also has not demonstrated that any of the alleged misrepresentations were "known to be untrue" by the Defendant, as is required for the contract defense of fraudulent misrepresentation. In the absence of evidence that the program materials were false and that the Defendant knew they were false, the Plaintiff's claims of fraudulent inducement fail. For the foregoing reasons, Judge Arterton granted the Defendant's Motion to Compel Arbitration and Stay Proceedings. The clerk is directed to stay the case pending arbitration. A full-text copy of the Court's Sept. 19, 2018 Ruling is available at https://is.gd/6eQOhj from Leagle.com. Andrew Davis, on behalf of himself and all others similarly situated, Plaintiff, represented by Daniel E. Sobelsohn -- dsobelsohn@sobelsohnlaw.com -- The Sobelsohn Law Firm. Macy's Retail Holdings, Inc., also known as Macy's, Inc., Defendant, represented by David R. Golder -- David.Golder@jacksonlewis.com -- Jackson Lewis, Mara E. Finkelstein -- Mara.Finkelstein@jacksonlewis.com -- Jackson Lewis PC & Michael C. Christman -- michael.christman@macys.com -- Macy's Law Department. MAINE: Magistrate Recommends Dismissal of Gladu Prisoners Suit -------------------------------------------------------------- In the case, NICHOLAS A. GLADU, Plaintiff, v. JOSEPH FITZPATRICK, et al., Defendants, Case No. 1:18-cv-00274-GZS (D. Maine), Judge Magistrate John C. Nivison of the U.S. District Court for the District of Maine recommended that the Court dismisses the Plaintiff's class action allegations and all of his claims except for his claim against Defendant Manning. In the action, the Plaintiff, an inmate in the custody of the Maine Department of Corrections at the Maine State Prison, alleges the Defendants violated his constitutional rights following an incident in February 2018. He also attempts to assert a class action on behalf of others who are similarly situated. The Plaintiff filed an application to proceed in forma pauperis, which application the Court granted. The Plaintiff alleges that on Feb. 11, 2018, he received two heavy applications of pepper spray when he refused to "cuff up" for a cell extraction, and that he was subsequently denied access to a shower for three days after he was placed in Emergency Observation Status ("EOS"). In particular, he alleges that Defendant Manning, identified as a sergeant at the Maine State Prison, denied his request for a shower for a period of three days, even though he reported to the Defendant that his skin was burning from head-to-toe. Additionally, the Plaintiff alleges that Defendant Manning denied him access to other means of decontamination in his cell (i.e., wash cloths and towels), even though prison policy does not deny EOS prisoners access to such items. He asserts that Defendants Liberty and Ross, alleged to be the warden and deputy warden of security, are liable as supervisors. He further alleges that Defendants Fitzpatrick and Thornell have supervisory liability because they are, respectively, Commissioner and Deputy Commissioner of the Maine Department of Corrections. The Plaintiff asserts that Department of Corrections' policy requires officers to provide reasonable opportunity for a prisoner to be decontaminated, by means of a shower and clean change of clothing, following any direct exposure to chemical agents. He also alleges that the supervisory Defendants nevertheless tolerate or condone a practice in which prisoners are denied the ability to decontaminate after exposure to pepper spray because, based on information and belief, other prisoners have had experiences similar to Plaintiff's experience. The Plaintiff seeks to assert a class action on behalf of all male prisoners at MSP who were or will be exposed to chemical agents and then deprived of meaningful opportunity to decontaminate by means of a shower and clean change of clothing. Magistrate Nivison holds that the Plaintiff cannot assert a claim on behalf of other individuals. As a pro se litigant, the Plaintiff cannot represent other prisoners in the Court, though he may provide advice and assistance to his fellow inmates on their legal matters. To the extent the Plaintiff proposes not only to serve as the representative of the class, but also as a legal representative of the other class members, his request to certify a class fails. The Plaintiff's request to certify a class also fails because he has not otherwise satisfied the requirements for class certification. Significantly, the Plaintiff, as the sole proposed representative of the class, has not alleged that he has claims that are "typical" of all of the class. Although he has not established the prerequisites for class certification, the Plaintiff has alleged sufficient facts to support an individual claim. Specifically, the Plaintiff has alleged facts sufficient to state a plausible Section 1983 claim against Defendant Manning based on the alleged denial of means by which to decontaminate from the application of pepper spray. He has not, however, alleged facts to state plausible claims against any of the other Defendants. His allegations against the supervisory Defendants are conclusory and not fact-based. Based on the foregoing analysis, Magistrate Judge Nivison recommended the Court dismisses the Plaintiff's class action allegations, dismisses the Plaintiff's claims against Defendants Fitzpatrick, Thornell, Liberty, Ross, Cassese, and Burns, and permit the Plaintiff, based on the alleged denial of means by which to decontaminate from the application of pepper spray, to proceed on a claim under 42 U.S.C. Section 1983 against Defendant Manning. A full-text copy of the Court's Sept. 19, 2018 Recommended Decision is available at https://is.gd/fzxla7 from Leagle.com. NICHOLAS A GLADU, and Others Similarly Situated, Plaintiff, pro se. MGT CAPITAL: Bernstein Liebhard Files Class Action Lawsuit ---------------------------------------------------------- Bernstein Liebhard LLP, a nationally acclaimed investor rights law firm, announces that a securities class action lawsuit has been filed on behalf of those who purchased or acquired the securities of MGT Capital Investments, Inc. ("MGT" or the "Company") (OTCMKTS: MGTI) between October 9, 2015 and September 7, 2018, both dates inclusive (the "Class Period"). The lawsuit seeks to recover MGT shareholders' investment losses. If you purchased MGT securities, and/or would like to discuss your legal rights and options, please visit MGT Shareholder Class Action Lawsuit or contact Daniel Sadeh toll free at (877) 779-1414 or dsadeh@bernlieb.com. According to the lawsuit, throughout the Class Period Defendants made false and/or misleading statements and/or failed to disclose that: (1) defendants were engaged in a pump-and-dump scheme to artificially inflate MGT's stock price; (2) this illicit scheme caused MGT to make false and misleading statements, which would result in governmental scrutiny, including from the SEC; (3) certain of the scheme defendants exercised control over MGT and its management; (4) consequently, the illicit scheme would ultimately cause MGT's stock to become delisted from the NYSE MKT; and (5) as a result, defendants' statements about MGT's business and prospects were materially false and misleading and/or lacked a reasonable basis at all relevant times. When the true details entered the market, the lawsuit claims that investors suffered damages. On September 7, 2018, the U.S. Securities and Exchange Commission ("SEC") filed a lawsuit against a former officer of MGT as well as other individuals and corporations, alleging violations of the federal securities laws. The SEC complaint alleges that defendants were participants in "highly profitable 'pump-and-dump' schemes . . . . from 2013 through 2018" in the stock of three public companies, including MGT. The SEC complaint further alleges that the schemes "enrich[ed] Defendants by millions of dollars, [and] left retail investors holding virtually worthless shares." On this news, MGT stock fell $0.195 per share, or over 33%, over the next two trading days to close at $0.395 per share on September 10, 2018, damaging investors. If you wish to serve as lead plaintiff, you must move the Court no later than November 27, 2018. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. Your ability to share in any recovery doesn't require that you serve as lead plaintiff. If you choose to take no action, you may remain an absent class member. If you purchased MGT securities, and/or would like to discuss your legal rights and options, please visit https://www.bernlieb.com/cases/mgt-capital-investments-inc-mgti-lawsuit-class-action-fraud-stock-85/ or contact Daniel Sadeh toll free at (877) 779-1414 or dsadeh@bernlieb.com. Since 1993, Bernstein Liebhard LLP has recovered over $3.5 billion for its clients. In addition to representing individual investors, the Firm has been retained by some of the largest public and private pension funds in the country to monitor their assets and pursue litigation on their behalf. As a result of its success litigating hundreds of lawsuits and class actions, the Firm has been named to The National Law Journal's "Plaintiffs' Hot List" thirteen times and listed in The Legal 500 for ten consecutive years. Daniel Sadeh, Esq. Bernstein Liebhard LLP Website: www.bernlieb.com Email: dsadeh@bernlieb.com [GN] MGT CAPITAL: Gainey McKenna Files Class Action Lawsuit ------------------------------------------------------ Gainey McKenna & Egleston disclosed that a class action lawsuit has been filed against MGT Capital Investments, Inc. ("MGT Capital" or the "Company") (OTC: MGTI) in the United States District Court for the District of New Jersey on behalf of a class consisting of investors who purchased or otherwise acquired MGT Capital securities between October 9, 2015 through September 7, 2018, both dates inclusive (the "Class Period"), seeking to recover damages caused by Defendants' violations of the federal securities laws and to pursue remedies under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act") and Rule 10b-5 promulgated thereunder. The Complaint alleges that Defendants made false and/or misleading statements and/or failed to disclose that: (1) Defendants were engaged in a pump-and-dump scheme to artificially inflate MGT Capital's stock price; (2) this illicit scheme caused MGT Capital to make false and misleading statements, which would result in governmental scrutiny, including from the SEC; (3) certain of the scheme Defendants exercised control over MGT Capital and its management; (4) consequently, the illicit scheme would ultimately cause MGT Capital's stock to become delisted from NYSE MKT; and (5) as a result, Defendants' statements about MGT Capital's business and prospects were materially false and misleading and/or lacked a reasonable basis at all relevant times. When the true details entered the market, the lawsuit claims that investors suffered damages. Investors who purchased or otherwise acquired shares during the Class Period should contact the Firm prior to the November 27, 2018 lead plaintiff motion deadline. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. If you wish to discuss your rights or interests regarding this class action please contact: Thomas J. McKenna, Esq. Gregory M. Egleston, Esq. Gainey McKenna & Egleston Telephone: (212) 983-1300, Email: tjmckenna@gme-law.com gegleston@gme-law.com. [GN] MIDLAND CREDIT: Gaspar Suit Asserts FDCPA Violation --------------------------------------------------- A class action lawsuit has been filed against Midland Credit Management, Inc. The case is styled as Keoni Gaspar individually and on behalf of all others similarly situated, Plaintiff v. Midland Credit Management, Inc., Defendant, Case No. 3:18-cv-06411 (N.D. Cal., Oct. 19, 2018). The Plaintiff filed the case under the Fair Debt Collection Practices Act. Midland Credit Management, Inc., a licensed debt collector, assists customers in resolving past-due financial obligations through various education and payment plans. The company was founded in 1953 and is based in San Diego, California. Midland Credit Management, Inc. operates as a subsidiary of Encore Capital Group, Inc.[BN] The Plaintiff is represented by: Jonathan A Stieglitz, Esq. 11845 W. Olympic Blvd., Suite 750 Los Angeles, CA 90064 Phone: (323) 979-2063 Fax: (323) 488-6748 Email: jonathan.a.stieglitz@gmail.com MILWAUKEE COUNTY, WI: Court Dismisses Bogan Prisoners Suit ---------------------------------------------------------- Magistrate Judge William E. Duffin of the U.S. District Court for the Eastern District of Wisconsin granted Bogan's motion to dismiss the case, ANTWAN BOGAN, Plaintiff, v. MILWAUKEE COUNTY CIRCUIT COURT, ET AL., Defendants, Case No. 18-CV-1204 (E.D. Wis.). Bogan, who is confined at the Milwaukee County House of Correction, is representing himself. He filed a "class action complaint" which also named as the Plaintiffs 10 other individuals. On Aug. 8, 2018, the Court assessed Bogan an initial partial filing fee, determined that Bogan was the only Plaintiff who filed the "class action complaint" because he was the only Plaintiff who signed it, and advised Bogan that he probably would not be permitted to proceed with a class action because he does not have an attorney. The Court advised him of the implications of joint prisoner litigation and ordered that, if he and the other individuals named as the Plaintiffs wanted to file a joint amended complaint, they should file it by Aug. 29, 2018. The Court stated that, if a joint amended complaint was not filed by Aug. 29, 2018, it would screen the current complaint once Bogan paid the initial partial filing fee. On Aug. 22, 2018, Bogan filed an amended complaint on his own, and two days later the Court received his initial partial filing fee. On Sept. 13, 2018, Bogan filed a motion to dismiss the case. He states that he thinks the case is premature. Judge Duffin notes that on Aug. 27, 2018, five individuals who were named as Plaintiffs in the original complaint filed a proposed joint amended complaint. They attached to the pleading two pages from the Court's Aug. 8, 2018 order that advised Bogan and other individuals named as the Plaintiffs that they could file a joint amended complaint if they wanted to proceed jointly. However, while these five individuals were named as the Plaintiffs in the original complaint, the Court did not consider them Plaintiffs because they had not signed the original complaint. Moreover, the Court ordered that Bogan and the other individuals named as the Plaintiffs could file a joint amended complaint, not just the other individuals named as the Plaintiffs. These Plaintiffs' proposed amended complaint is not properly before the Court in the case and the Judge will therefore not consider it. They may file a new case if they want to proceed on their joint amended complaint. For these reasons, Judge Duffin granted Bogan's motion to dismiss. The case is dismissed pursuant to Federal Rule of Civil Procedure 41(a)(1). He ordered the Clerk's Office mail copies of the Order to the other individuals named as the Plaintiffs in the original complaint for whom the Court has addresses. A full-text copy of the Court's Sept. 19, 2018 Order is available at https://is.gd/fGYHEJ from Leagle.com. Antwan Bogan, Plaintiff, pro se. MISSISSIPPI: Bryant Seeks Writ of Mandamus in Stallworth Suit ------------------------------------------------------------- Defendant Dewey Phillip "Phil" Bryant filed with the U.S. Court of Appeals for the Fifth Circuit a petition for writ of mandamus in connection with a court ruling in the lawsuit styled Jeffery A. Stallworth v. Bryant, et al., Case No. 3:16-CV-246, in the U.S. District Court for the Southern District of Mississippi, Jackson. Mr. Bryant is the Governor of the state of Mississippi. The appellate case is captioned as In re: Dewey Bryant, Case No. 18-60703, in the U.S. Court of Appeals for the Fifth Circuit. As previously reported in the Class Action Reporter, Jeffery A. Stallworth filed the lawsuit to challenge Senate Bill 2162, a proposed law that at the time was working its way through the Mississippi Legislature. His suit claims that SB 2162 will, among other things, violate his rights under the Fifth and Fourteenth Amendments to the United States Constitution. Mr. Stallworth seeks monetary, declaratory, and injunctive relief. Other parties have intervened and filed an appeal in the lawsuit.[BN] Defendant-Petitioner GOVERNOR DEWEY PHILLIP "PHIL" BRYANT is represented by: Justin Lee Matheny, Esq. OFFICE OF THE ATTORNEY GENERAL 550 High Street Walter Sillers Building Jackson, MS 39201 Telephone: (601) 359-3825 Facsimile: (601) 359-2003 E-mail: Jmath@ago.state.ms.us - and - Krissy C. Nobile, Esq. OFFICE OF THE ATTORNEY GENERAL P.O. Box 220 Jackson, MS 39205 Telephone: (601) 359-3824 E-mail: knobi@ago.state.ms.us Respondent TATE REEVES, in his Official Capacity as Lieutenant Governor of the State of Mississippi, is represented by: Phil B. Abernethy, Esq. Patrick Ryan Beckett, Esq. Charles E. Griffin, Esq. BUTLER SNOW, L.L.P. 1020 Highland Colony Parkway Ridgeland, MS 39158 Telephone: (601) 985-4536 E-mail: phil.abernethy@butlersnow.com ryan.beckett@butlersnow.com charles.griffin@butlersnow.com Respondent MADISON COUNTY, MISSISSIPPI, is represented by: Katherine Bryant Snell, Esq. BUTLER SNOW, L.L.P. 1020 Highland Colony Parkway Ridgeland, MS 39158 Telephone: (601) 985-4578 Respondent RANKIN COUNTY, MISSISSIPPI, is represented by: William Trey Jones, III, Esq. Leland K. Williams, Esq. BRUNINI, GRANTHAM, GROWER & HEWES, P.L.L.C. P.O. Drawer 119 Jackson, MS 39205-0000 Telephone: (601) 948-3101 E-mail: tjones@brunini.com kwilliams@brunini.com - and - Craig Lawson Slay, Esq. ADAMS & EDENS PA 2101 Courtside Drive Brandon, MS 39042-0000 Telephone: (601) 825-9505 Respondents JOSH HARKINS, DEAN KIRBY, PHILLIP MORAN, CHRIS CAUGHMAN, NICKEY BROWNING, JOHN A. POLK, MARK BAKER and ALEX MONSOUR are represented by: Charles Edward Cowan, Esq. Michael Brunson Wallace, Esq. WISE CARTER CHILD & CARAWAY, P.A. 401 E. Capitol Street Heritage Building Jackson, MS 39201-2688 Telephone: (601) 968-5500 E-mail: cec@wisecarter.com mbw@wisecarter.com Respondent MAYOR TONY T. YARBER, Mayor of the City of Jackson, Mississippi on behalf of the Citizens of the City of Jackson, Mississippi, is represented by: Kimberly C. Banks, Esq. P.O. Box 471 Jackson, MS 39205 Telephone: (601) 316-3600 E-mail: cantoncityattorney1@gmail.com Respondents MAYOR TONY T. YARBER, Mayor of the City of Jackson, Mississippi on behalf of the Citizens of the City of Jackson, Mississippi; MELVIN V. PRIESTER, JR., in his official capacity as elected member of the City Council of the City of Jackson, Mississippi, from his respective ward; ASHBY FOOTE, in his official capacity as elected member of the City Council of the City of Jackson, Mississippi, from his respective ward; KENNETH I. STOKES, in his official capacity as elected member of the City Council of the city of Jackson, Mississippi, from his respective ward; DE' KEITHER STAMPS, in his official capacity as elected member of the City Council of the City of Jackson, Mississippi, from his respective ward; CHARLES TILLMAN, in his official capacity as elected member of the City Council of the City of Jackson, Mississippi, from his respective ward; TYRONE HENDRIX, in his official capacity as elected member of the City Council of the City of Jackson, Mississippi, from his respective ward; and MARGARET BARRETT-SIMON, in her official capacity as elected member of the City Council of the City of Jackson, Mississippi, from her respective ward, are represented by: Kristen N. Blanchard, Esq. OFFICE OF THE CITY ATTORNEY 455 E. Capitol Street Jackson, MS 39201 Telephone: (601) 960-1799 E-mail: kblanchard@city.jackson.ms.us - and - LaShundra Jackson-Winters, Esq. CITY ATTORNEY'S OFFICE P.O. Box 2779 Jackson, MS 39207-2779 Telephone: (601) 960-1799 E-mail: lwinters@city.jackson.ms.us Respondents MELVIN V. PRIESTER, JR., individually as citizen of the City of Jackson, MS, on behalf of himself and others similarly situated; ASHBY FOOTE, individually as citizen of the City of Jackson, MS, on behalf of himself and others similarly situated; KENNETH I. STOKES, individually as citizen of the City of Jackson, MS, on behalf of himself and others similarly situated; DE'KEITHER STAMPS, individually as citizen of the City of Jackson, MS, on behalf of himself and others similarly situated; CHARLES TILLMAN, individually as citizen of the City of Jackson, MS, on behalf of himself and others similarly situated; and TYRONE HENDRIX, individually as citizen of the City of Jackson, MS, on behalf of himself and others similarly situated, are represented by: LaToya Cheree Merritt, Esq. PHELPS DUNBAR, L.L.P. 4270 I-55, N. Jackson, MS 39211-6391 Telephone: (601) 352-2300 E-mail: merrittl@phelps.com - and - Aisha Arlene Sanders, Esq. Everett T. Sanders, Esq. SANDERS LAW FIRM, P.L.L.C. 604 Franklin Street Natchez, MS 39120 Telephone: (601) 445-5570 E-mail: asanders@sanlaw.net esanders@sanlaw.net Respondents MARGARET BARRETT-SIMON, individually as citizen of the City of Jackson, MS, on behalf of herself and others similarly situated; JACKSON MUNICIPAL AIRPORT AUTHORITY; BOARD OF COMMISSIONERS OF THE JACKSON MUNICIPAL AIRPORT AUTHORITY, each in his or her official capacity as a Commissioner on the Board of Commissioners of the Jackson Municipal Airport Authority; DOCTOR ROSIE L. T. PRIDGEN, in her official capacity as a Commissioner on the Board of Commissioners of the Jackson Municipal Airport Authority; REVEREND JAMES L. HENLEY, JR., in his official capacity as a Commissioner on the Board of Commissioners of the Jackson Municipal Airport Authority; LAWANDA D. HARRIS, in her official capacity as a Commissioner on the Board of Commissioners of the Jackson Municipal Airport Authority; VERNON W. HARTLEY, SR., in his official capacity as a Commissioner on the Board of Commissioners of the Jackson Municipal Airport Authority; and EVELYN O. REED, in her official capacity as a Commissioner on the Board of Commissioners of the Jackson Municipal Airport Authority, are represented by: Fred L. Banks, Jr., Esq. PHELPS DUNBAR, L.L.P. 4270 I-55, N. Jackson, MS 39211-6391 Telephone: (601) 352-2300 E-mail: fred.banks@phelps.com - and - John L. Walker, Esq. WALKER GROUP, P.C. P.O. Box 22489 Jackson, MS 39225 Telephone: (601) 948-4589 E-mail: jwalker@walkergrouppc.com Respondents DOCTOR ROSIE L. T. PRIDGEN, individually as citizen of the City of Jackson, MS, on behalf of herself and all others similarly situated; LAWANDA D. HARRIS, individually as citizen of the City of Jackson, MS, on behalf of herself and all others similarly situated; VERNON W. HARTLEY, SR., individually as citizen of the City of Jackson, MS, on behalf of himself and all others similarly situated; and EVELYN O. REED, individually as citizen of the City of Jackson, MS, on behalf of herself and all others similarly situated, are represented by: Tylvester O. Goss, Esq. GOSS & WILLIAMS, P.L.L.C. 1441 Lakeover Road Jackson, MS 39213 Telephone: (601) 981-2800 E-mail: tgoss@dgwlaw.com MOORE LAW: Violates FDCPA, Black Suit Asserts --------------------------------------------- A class action lawsuit has been filed against Moore Law Group. The case is styled as Alicia Black individually and on behalf of all others similarly situated, Plaintiff v. Moore Law Group, The Moore Law Group A Professional Corporation, Defendant, Case No. 5:18-cv-06408 (N.D. Cal., Oct. 19, 2018). The Plaintiff filed the case under the Fair Debt Collection Practices Act. The Moore Law Group is a full service business, business litigation and creditor’s rights law firm with clients that range from Fortune 500 lenders to regional and local businesses and individuals.[BN] The Plaintiff appears pro se. NATIONAL AUSTRALIA: Slater & Gordon Files Insurance Class Action ---------------------------------------------------------------- Misa Han, writing for Australian Financial Review, reports that National Australia Bank has been sued in a consumer class action for selling junk credit card insurance to students and welfare recipients, with more banks likely to be hit by similar actions. Class action law firm Slater and Gordon said on Sept. 27 it has filed a class action in the Federal Court against NAB and MLC for selling worthless credit card insurance to customers. The action comes on the eve of the banking royal commission's interim report, which will identify policy issues in consumer credit. The action alleges NAB and its wealth arm MLC acted unconscionably in breach of the Australian Securities and Investment Commission Act by pushing credit card insurance to customers who would be ineligible to claim the main benefits from the policy. These customers included students, unemployed people and people on disability pensions. Slater and Gordon is running the action on a no win, no fee basis and there is no litigation funder involved. It is also considering further actions against the other banks. Slaters does not have a dollar value attached to this particular action, however it says it had registrations from "hundreds of customers" and "believe that there are thousands out there with similar claims". When Commonwealth Bank was pinged for similar conduct, it refunded $10 million to more than 65,000 customers in 2017. Pressure selling Joining the class action will be customers such as Jessica Purcell, who was a full-time university student when she was pressured to take out consumer credit insurance. She was a casual employee at the time and therefore ineligible to claim the policy if she became unemployed. "It was sold to me like it was something that I had to take out," she said. The class action comes after Slater and Gordon announced in March it is investigating potential class actions against banks for selling tens of millions of dollars worth of insurance that offered people little or no coverage. The action also comes after the banking royal commission revealed Commonwealth Bank had been selling CreditCard Plus insurance since at least 2003 to people who couldn't claim the policy as they were already unemployed when they took out the policy. Little or no benefit Slater and Gordon's Andrew Paull said NAB pushed the insurance policy, "reaping millions in premiums while doing so". "Most were existing NAB customers and the bank should have known the insurance was likely to be of little or no benefit to them," he said. Mr Paull said NAB admitted in the royal commission the life cover for the policy provided minimal value to many customers. "Both NAB and MLC were in much stronger bargaining positions than any of the people they were contacting and selling this insurance to. "They have taken advantage of hundreds, potentially thousands of their loyal customers." Rolling litigation NAB is the first bank to be hit by a consumer class action following the banking royal commission hearings. Slaters said in September it will sue CBA and AMP on behalf of their super fund members to recover at least $500 million, however it has not filed a lawsuit yet. This is likely to be only the beginning of years of rolling litigation and potentially billions of dollars out of the Hayne royal commission, as Slaters' rival Maurice Blackburn is going after the bigger pie of banks over mortgage lending. NAB chief legal and commercial counsel Sharon Cook said the bank has not been served with any legal documents from Slaters yet. "We will consider carefully any allegations when we receive the claim. We encourage NAB customers who have questions regarding our products and services to talk to their banker or contact us," she said. The bank has a dedicated hotline for NAB credit card insurance customers, the bank said. [GN] NAVIENT: Faces Class Action Over Alleged Forgiveness Obstructions ----------------------------------------------------------------- Colby Hamilton, writing for Law.com, reports that kike so many teaching professionals, New York City public school teacher Melissa Garcia says she took out loans to help meet the expense of earning a master's degree. And like so many students everywhere, those loans were ultimately serviced by Navient, the legacy student loan behemoth. Born out of the privatization of its predecessor Sallie Mae, Navient held a portfolio of nearly $88 billion worth of federally backed student loans at the end of 2016. Ms. Garcia says that she trusted Navient to provide truthful, accurate information about her loan repayment options, specifically because, as a teacher, she hoped to become eligible for the federal Public Service Loan Forgiveness program. The program is marketed to employees of government and not-for-profit entities who make 120 monthly payments, under specific conditions, who are then potentially able to have their remaining balance forgiven. According to a complaint in a new class-action suit filed in Manhattan federal court on Oct. 3, Ms. Garcia and eight other borrowers working in public service positions that they hoped qualified them for forgiveness later claim Navient failed in its duties to help them and others remain in good standing on their loans. Ms. Garcia claims that over the years the loan servicing company made suggestions that hurt her ability to eventually realize loan forgiveness. She claims Navient's suggestion in 2013 to consolidate her loans would help her save money. In reality, she alleges, the consolidation caused her to lose 37 qualifying payments she'd make toward to PSLF program. A year later in 2014, Ms. Garcia asked Navient about her eligibility for loan forgiveness, and she was told by the company that PSLF would be her best bet. Yet when she told Navient she'd completed her employment certification form for the program, she claims the company told her not to submit the form until she was through with all 120 qualified payments. According to the complaint, Navient's suggestion hid a self-serving motive. Once the employment certification form is submitted, loans are no longer serviced by Navient, which means a loss of servicing fees. By not submitting the form, she missed an opportunity to qualify for PSLF, Garcia claims. These are among the numerous complaints made by the plaintiff's against Navient, which they claim has been misleading borrowers in ways that help Navient's bottom line but do substantial damage to borrowers' prospects for receiving loan relief in the future. "Since 1983, the cost of higher education has risen more than 700 percent and over 40 million people have taken out student loans totaling over $1.5 trillion," Selendy & Gay name attorney Faith Gay -- fgay@selendygay.com -- who leads the plaintiff's legal team, said in a statement. "But Navient has obstructed loan forgiveness at alarming rates, with horrifying effects on borrowers, their families and communities." A spokeswoman for Navient declined to comment on the suit. Recent reports suggest that those seeking forgiveness under PSLF are, at the very least, struggling to overcome the law's hurdles. According to those reports, PSLF, which is just now seeing the first wave of potentially eligible students seek forgiveness, has a rejection rate of 99 percent. Out of the 28,000 loan borrowers who submitted forgiveness requests as of June 30, only 300 have been approved. As a loan service provider, Navient has a material role in assisting borrowers, something made clear through its contract with the U.S. Department of Education, according to the complaint. This holds for guiding those seeking assistance navigating the PSLF process. As the complaint notes, through its company leadership and public statements, Navient presents itself as being committed to assist borrowers. The reality, the complaint claims, is that Navient is incentivized to prevent borrowers from enrolling in PSLF, as a way to keep servicing fees coming to it and its profits on an upward trajectory. "Navient places Plaintiffs, along with those similarly situated, in imminent danger of future irreparable harm by continuing its pattern of providing false information to borrowers," the complaint states. The suit brings 15 causes of action against the company, including breach of contract and fiduciary duties, negligent misrepresentation, and violations of consumer laws in four different states, including New York and California. The suit is also being supported by the American Federation for Teachers, which says many of its members are being harmed by Navient's practices. "We are proud to be represented by the powerful women-led team at Selendy & Gay, a firm that shares AFT's commitment to the public good," ATF president Randi Weingarten said in a statement. [GN] NERIUM INT'L: Can Compel Arbitration in Jia RICO Suit ----------------------------------------------------- In the case, HELEN JIA, an individual, and SARAH SORMILLON, an individual, and all those similarly situated, Plaintiffs, v. NERIUM INTERNATIONAL LLC, et al., Defendants, Case No. 3:17-CV-03057-S (N.D. Tex.) Judge Karen Gren Scholer of the U.S. District Court for the Northern District of Texas, Dallas Division, granted the Defendants' Motion to Compel Arbitration and Dismiss or Stay Action. The case was transferred from the docket of Judge Ed Kinkeade to the docket of the Court on March 12, 2018. Plaintiffs Jia and Sormillon bring the action against the Defendants. Jia became a Nerium Brand Partner in August 2013. Sormillon became a Brand Partner in September 2016. Nerium sells skincare and other products through a network of Brand Partners. Brand partners are independent, non-exclusive distributors of Nerium skincare products. According to the Defendants, Nerium's direct-sales model allows the Brand Partners to earn money both by selling products and by recruiting new Brand Partners who, in turn, also sell products. The Brand Partners receive commissions from the sales of the Brand Partners they recruit, and each Brand Partner whom those recruits in turn recruit, and so forth. the Plaintiffs, however, allege that Nerium generates its revenue using a product-based pyramid scheme. The Defendants move to compel arbitration of all claims asserted against them by the Plaintiffs and to dismiss the lawsuit, or in the alternative, to stay the lawsuit pending resolution of the arbitration process. According to them, the Brand Partner relationship is governed by a series of agreements, including Nerium's Policies and Procedures and Terms of Agreement. They assert that enrollment as a Brand Partner requires submitting an application to Nerium and executing an Electronic Signature Agreement, which includes clicking "I agree" to, among other things, the Agreements. In addition, the Terms contained a Dispute Resolution Provision reaffirming a Brand Partner's agreement to arbitrate any dispute under Texas law. When Jia enrolled online as a Brand Partner on Aug. 9, 2013, she agreed to the same Arbitration Provision in the Policies as Sormillon. Additionally, the Terms contained an identical Dispute Resolution Provision, except for a typographical error referencing Section 11.06 of the Policies instead of Section 11.09. The Plaintiffs oppose the Motion, alleging that their claims are not subject to arbitration. According to them, the Motion should be denied because (1) the Plaintiffs did not assent to the Arbitration Policy, (2) the Agreements are illusory, (3) Nerium's right to compel arbitration expired, (4) the factual allegations fall outside the scope of the Arbitration Policy, (5) the Agreements are unconscionable, (6) contracts void against public policy cannot be compelled to arbitration, and (7) the Arbitration Policy improperly limits the Plaintiffs' statutory rights. Judge Scholer finds that the Defendants have provided sufficient evidence to establish that a contract, including an arbitration provision, exists between the parties. The Plaintiffs have provided no reliable evidence to the contrary -- only highly suspect, misleading, and conclusory allegations. Assent through an affirmative "click" is sufficient to bind the parties under Texas law. Given the plain language of the Arbitration Provision and her finding that the Plaintiffs are not precluded from seeking injunctive relief in arbitration, the Judge finds that there is a plausible argument that the arbitration agreement requires the merits of the claim to be arbitrated. Both the Arbitration Provision and Dispute Resolution Provision incorporate the AAA Rules, evincing clear and unmistakable evidence of the parties' intent to delegate threshold questions to an arbitrator, including questions regarding the validity and scope of the arbitration provision itself. Therefore, it is for the arbitrator, and not the Court, to decide threshold questions, including the scope of the arbitration. Finally, in the absence of a challenge specifically to a delegation clause, validity and enforceability challenges must be sent to the arbitrator. Because she finds there is an agreement to arbitrate, a delegation clause, and no specific challenge to that delegation clause, the Plaintiffs' additional arguments are for an arbitrator to resolve. For the reasons outlined, Judge Scholer granted the Defendants' Motion to Compel Arbitration and Dismiss or Stay Action. She finds that an agreement, including an arbitration provision, exists between the parties. The Arbitration Policy incorporates the AAA Rules, evincing clear and unmistakable evidence of the parties' intent to have the arbitrator decide whether a given claim must be arbitrated. Any challenges to the enforceability or scope of the Arbitration Policy must be decided by the arbitrator. The action will be stayed and administratively closed pending the outcome of arbitration. She directed the Clerk of Court to administratively close the case until such time as the Court orders it to be reopened. A full-text copy of the Court's Sept. 18, 2018 Memorandum Opinion and Order is available at https://is.gd/2oBiDW from Leagle.com. Helen Jia, an individual & Sarah Sormillon, an individual and all those similarly situated, Plaintiffs, represented by Blake J. Lindemann -- blake@lawbl.com -- Lindemann Law Firm APC, pro hac vice, Jamie Jean McKey -- jmckey@kendalllawgroup.com -- Kendall Law Group PLLC & Joe Kendall -- jkendall@kendalllawgroup.com -- Kendall Law Group PLLC. Nerium International LLC, a Texas Limited Liability Company, Jeff Olson, an individual, Renee Olson, an individual & Amber Olson Rourke, an individual, Defendants, represented by Joshua A. Huber, Blank Rome LLP, Anahit Tagvoryan -- atagvoryan@blankrome.com -- Blank Rome LLP, pro hac vice, Harrison Maxwell Brown -- hbrown@blankrome.com -- Blank Rome LLP, pro hac vice, Mike Margolis -- margolis@winlaw.com -- Blank Rome LLP, pro hac vice, Monica Wiseman Latin, Carrington Coleman Sloman & Blumenthal LLP, Naki Margolis -- nmargolis@blankrome.com -- Blank Rome LLP, pro hac vice & Parker Lee Graham , Carrington Coleman Sloman & Blumenthal LLP. Nerium Skincare Inc, a Texas Corporation, Nerium Biotechnology Inc & Natural Technology Inc, doing business as Naturtech, Defendants, represented by Jonathan R. Mureen , Squire Patton Boggs (US) LLP, Alexander J. Toney , Squire Patton Boggs LLP, Brian Matthew Gillett, Squire Patton Boggs (US) LLP & Samuel Genovese, Squire Patton Boggs (US) LLP. Michael Shouhed, an individual, Defendant, represented by Jeffrey S. Jacobson -- jjacobson@KelleyDrye.com -- Kelley Drye & Warren LLP, pro hac vice, Daniel H. Charest, Burns Charest LLP, Mallory Toby Biblo, Burns Charest LLP & William James Jackson, Kelley Drye & Warren LLP. NEW PRIME: Supreme Court Hears Arguments in Arbitration Dispute --------------------------------------------------------------- Alison Noon, writing for Law360, reports that the U.S. Supreme Court heard a truck driver's arguments on Oct. 3 that Congress had the foresight in the 1920s to prohibit commerce employers such as New Prime Inc. from forcing independent contractors. [GN] NFL: Court to Consider Super Bowl Ticketing Claims -------------------------------------------------- The Associated Press reports that the NFL's Super Bowl ticketing policies will be put under a microscope when New Jersey's Supreme Court considers claims that the league violated state consumer fraud laws leading up to the 2014 game at MetLife Stadium. If Josh Finkelman's challenge succeeds and the case ultimately prevails as a class action, the NFL could be liable for millions in damages to him and other ticketholders, his attorney said. "He was forced to pay thousands of dollars a ticket where the face value is $800," Bruce Nagel said. "People were paying five to 10 times the face value of the tickets. That's not right." Mr. Finkelman's lawsuit, filed in the weeks after Super Bowl XLVIII, cuts to the core of an issue that has bedeviled sports fans for decades: the league's practice of releasing roughly 1 percent of available tickets through a lottery, with the rest going to the teams, sponsors and other insiders. Mr. Finkelman claims the practice violates a New Jersey law -- since repealed -- that required 95 percent of tickets to be made available to the public. His suit was dismissed twice by a U.S. District judge sitting in New Jersey who said Mr. Finkelman hadn't demonstrated the NFL's policies had caused him economic harm, partly since he hadn't entered the lottery. But after Mr. Finkelman refiled the suit, the 3rd U.S. Circuit Court of Appeals in Philadelphia ruled last December that the suit could go forward and directed New Jersey's Supreme Court to hear arguments on the applicability of the state law. Those arguments were scheduled for Sept. 27. Mr. Finkelman "has overcome a very significant hurdle in that he's shown his legal standing to sue, meaning he's shown a cognizable injury," said Daniel Wallach, a Miami-based attorney specializing in sports industry law. "But he now has a second obstacle that must be overcome." In his amended suit, Mr. Finkelman cited research by University of San Francisco sports economist Daniel Rascher alleging that insiders are more likely to re-sell tickets through brokers, who are more likely to charge higher prices than fans would charge to other fans. The NFL prohibits fans who win tickets through a lottery from re-selling tickets. If more tickets were available to the public, the suit contends, the prices on the secondary market would be lower. The NFL called Mr. Rascher's theories speculative and wrote in a court filing that "there is simply no way of knowing whether the people and entities to whom the NFL distributed tickets to Super Bowl XLVIII were any less likely to sell their tickets on the secondary market than members of the general public would have been." An NFL spokesman didn't return a message seeking comment. According to Mr. Nagel, 95 percent of the roughly 82,000 tickets to the game could be subject to damages calculated by the difference between their face value and what the secondary market charged. That potential figure, well into the tens of millions, would be trebled under rules governing class actions, he said. More hurdles await Mr. Finkelman if the state Supreme Court sides with him, however. He would have to persuade a federal judge to grant class-action status, and survive additional motions by the NFL to throw the case out. Then he would have to prevail in front of a jury, unless the league opts to settle out of court. "To use a football phrase, the game is barely in the middle of the first quarter, and the NFL remains a prohibitive favorite," Mr. Wallach said. [GN] OCH-ZIFF CAPITAL: Class in Menaldi Securities Fraud Suit Certified ------------------------------------------------------------------ Judge J. Paul Oetken of the U.S. District Court for the Southern District of New York granted the Plaintiffs' motion to certify the securities fraud class action, ARTHUR MENALDI, individually and on behalf of all others similarly situated, Plaintiff, v. OCH-ZIFF CAPITAL MANAGEMENT GROUP LLC, DANIEL S. OCH, and JOEL M. FRANK, Defendants, Case No. 14-CV-3251 (JPO) (S.D. N.Y.). The putative class consists of shareholders of Och-Ziff. The Plaintiffs claim that Och-Ziff misrepresented the impact of a federal investigation into its bribery of African officials. Beginning in 2007, Och-Ziff employees allegedly bribed various African officials. The federal government subsequently launched an investigation. In 2012 and 2013, while the investigation was ongoing, Och-Ziff's public filings suggested that it was not facing any investigations that could have a material impact on the company. Plaintiffs allege that these statements violated securities laws. The key factual issues relate mostly to dueling experts: Dr. Zachary Nye for Plaintiffs, and Dr. Allan Kleidon for Och-Ziff. After the last motion to dismiss, two claims remain: (1) a Rule 10b-5 claim against Och-Ziff and two of its executives based on allegedly misleading statements regarding the government investigation, and (2) a Section 20(a) control-person claim against the two executives, also based on those statements. The Plaintiffs seek to certify the class of all persons other than defendants who purchased Och-Ziff securities between Feb. 9, 2012 and Aug. 22, 2014, both dates inclusive. Judge Oetken finds that the Plaintiffs' satisfy the Rule 23 requirements. He also finds that both of the law firms representing the proposed class are experienced securities litigators. Pomerantz LLP and The Rosen Law Firm, P.A. would adequately represent the class. Judge Oetken granted the motion for class certification. The motions at Docket Numbers 157 and 175 are also GRANTED. He appointed Ralph Langstandt and Julie Lemond as the lead Plaintiffs, and Pomerantz LLP and The Rosen Law Firm, P.A. as the class counsel. The Clerk of Court is directed to close the motions at Docket Numbers 60, 157, and 175. A full-text copy of the Court's Sept. 14, 2018 Opinion and Order is available at https://is.gd/uUB8zH from Leagle.com. Ralph Langstadt & Julie Lemond, Lead Plaintiffs, represented by Jeremy Alan Lieberman -- jalieberman@pomlaw.com -- Pomerantz LLP, Phillip C. Kim -- pkim@rosenlegal.com -- The Rosen Law Firm P.A., Emma Gilmore, Pomerantz LLP, Laurence Matthew Rosen -- lrosen@rosenlegal.com -- The Rosen Law Firm, P.A., Michele S. Carino, Pomerantz LLP, Patrick Vincent Dahlstrom, Pomerantz LLP, & Sara Esther Fuks -- sfuks@rosenlegal.com -- Milberg LLP. Arthur Menaldi, Individually and on Behalf of All Others Similarly Situated, Plaintiff, represented by Jeremy Alan Lieberman, Pomerantz LLP, Michele S. Carino, Pomerantz LLP, Patrick Vincent Dahlstrom, Pomerantz LLP & Tamar Aliza Weinrib, Pomerantz LLP. Och-Ziff Capital Management Group LLC, Defendant, represented by Robert F. Serio -- rserio@gibsondunn.com -- Gibson, Dunn & Crutcher, LLP, Aric Hugo Wu -- awu@gibsondunn.com -- Gibson, Dunn & Crutcher, LLP & Gabriel Herrmann -- gherrmann@gibsondunn.com -- Gibson, Dunn & Crutcher, LLP. Daniel S. Och, Defendant, represented by Alan Mark Vinegrad -- avinegrad@cov.com -- Covington & Burling LLP & Stephen James Dee -- sdee@cov.com -- Covington & Burling LLP. Joel M. Frank, Defendant, represented by Richard John Morvillo -- rmorvillo@morvillolaw.com -- Morvillo LLP, Elizabeth Anne Marshall -- emarshall@morvillolaw.com -- Morvillo LLP & Ellen Marie Murphy -- emurphy@morvillolaw.com -- Morvillo LLP. OCH-ZIFF CAPITAL: Settles Shareholder Class Action for $28.75MM --------------------------------------------------------------- Jonathan Stempel, writing for Reuters, reports that Och-Ziff Capital Management Group LLC has reached a $28.75 million class-action settlement with shareholders who said the company misled them about U.S. probes into its involvement in alleged bribery in five African countries. The settlement with one of the largest publicly-traded hedge fund companies was made public on Oct. 2 in the U.S. District Court in Manhattan and requires court approval. It followed Och-Ziff's $412 million settlement in Sept. 2016 of a U.S. Department of Justice criminal probe, and came 18 days after U.S. District Judge Paul Oetken said the investors could sue the New York-based company as a group. The defendants also included Chief Executive Daniel Och and former Chief Financial Officer Joel Frank. They denied wrongdoing in agreeing to settle. An Och-Ziff spokesman declined to comment. Och-Ziff now has $32.8 billion of assets under management. Investors accused Och-Ziff of inflating its stock price by concealing Justice Department and Securities and Exchange Commission probes that uncovered bribes to government officials in Libya, the Democratic Republic of Congo, Chad, Guinea and Niger. Och-Ziff entered a deferred prosecution agreement and its OZ Africa Management unit pleaded guilty to a criminal conspiracy charge as part of the Justice Department settlement. Och, a former Goldman Sachs Group Inc trader, agreed to pay $2.2 million at the time to settle a SEC civil recordkeeping charge, without admitting wrongdoing. In July, another federal judge dismissed a separate SEC case accusing former Och-Ziff executives Michael Cohen and Vanja Baros of using bribes to win business in Africa. The Oct. 2 settlement covers investors led by Ralph Langstadt and Julie Lemond, who bought Och-Ziff securities from Feb. 9, 2012 to Aug. 22, 2014. They could recover more than 41 cents per share, before legal fees are deducted. Och-Ziff had set aside $10 million for a possible settlement in the second quarter. The case is Menaldi v. Och-Ziff Capital Management Group LLC et al, U.S. District Court, Southern District of New York, No. 14-03251. [GN] ODWALLA INC: Court Narrows Claims in Casey FDCA Suit ---------------------------------------------------- In the case, TARA CASEY, on behalf of herself and all others similarly situated, Plaintiff, v. ODW ALLA, INC. and THE COCA-COLA COMPANY, Defendants, Case No. 17-CV-2148 (NSR) (S.D. N.Y.), Judge Nelson S. Roman of the U.S. District Court for the Southern District of New York granted in part and denied the Defendants' motion to transfer pursuant to 28 U.S.C. Section 1404(a), or in the alternative for dismissal for failure to state a cause of action pursuant to Federal Rule of Civil Procedure 12(b)(6) and for dismissal of the Plaintiff's request for injunctive relief pursuant to Federal Rule of Procedure 12(b)(1) for lack of standing. The Plaintiff instituted the putative class action by filing a federal complaint on March 24, 2017, on behalf of herself and others similarly situated. The Plaintiff asserts that the Defendants violated the Food, Drug and Cosmetic Act of 1983 ("FDCA") and the New York General Business Law ("GBL") Sections 349 and 350 and misled consumers when they labeled certain juice products "100% Juice" with "No Added Sugar." The Plaintiff also asserts a claim for unjust enrichment. Odwalla is a subsidiary of Coca-Cola that manufactures over 40 varieties of premium juices, smoothies, protein shakes and snack bars. Of the various products it produces, Odwalla manufactures and sells premium Odwalla "100% Juice" juices which contain the phrase "No Added Sugar" on the label. The Plaintiff does not dispute that the label is correct; as such, she concedes that the Juices do not contain added sugar. The Plaintiff is a health conscious New York resident who purchased the Juices, including Groovin' Greens 100% and Berry Greens 100% Juice. In purchasing the Juices, she relied on the Defendants' misleading statements that the product contained 'No Added Sugar.' The Plaintiff would not have purchased the product in absence of the "No Added Sugar" label. She contends that the Defendants' inclusion of this phrase is impermissible under the FDCA, because the Juices do not resemble or substitute for a food that normally contains added sugar because fruit and vegetable juices do not normally contain added sugar. Consequently, she contends that the inclusion of "No Sugar Added" on the Juices is misleading, as it makes consumers believe that other 100% Juices without the "No Added Sugar" label contain added sugar and are therefore not as healthy. As a result of this deceptive labeling, consumers pay a premium for the Defendants' products. The Defendants' moved to transfer the matter to the Central District of California, or in the alternative, to dismiss the Complaint for failure to state a cause of action. After the motion was fully submitted, the Defendants filed a request asking the Court to take judicial notice of a letter dated Aug. 31, 2017 written by Douglas A. Balentine, Director of the Office of Nutrition and Food Labeling, Center for Food Safety and Applied Nutrition, at the United States Food & Drug Administration. The letter was written to the Center for Science in the Public Interest ("CSPI"), in response to the CSPI's May 24, 2017 letter requesting that the FDA take action to enforce its regulation to prohibit companies from labeling 100% juices as "No Added Sugar." The letter is not published on the FDA's website, but was obtained by the Defendants through a Freedom of Information Act request. Judge Roman granted in part and denied in part the Defendants' Motion. He granted it insofar as it seeks dismissal of the Plaintiff's unjust enrichment claim and an Order precluding the Plaintiff from seeking injunctive relief. He denied it in all other respects. As venue would not be proper in the Central District of California, transfer would not be appropriate. Additionally, the Judge cannot consider the FDA Letter on the motion to dismiss and it therefore finds that, on the facts alleged and matters of which he may take judicial notice, the Plaintiff's claims are not preempted by the FDCA because the Plaintiff sufficiently alleges that the Defendants' labeling violates the FDCA and the Defendants have not convinced the Court that their labeling is in compliance therewith. Nevertheless, the Judge acknowledges the potential import of the FDA Letter and believes it is more properly considered on a motion for summary judgment. The Defendants must answer the Complaint on or before Oct. 12, 2018. The parties are also directed to appear for a status conference on Oct. 19, 2018 at 11:30 a.m. at which time the Defendants can seek leave to file a motion for summary judgment if they so choose. The Clerk of the Court is respectfully directed to terminate the motion at ECF No. 23. A full-text copy of the Court's Sept. 19, 2018 Opinion and Order is available at https://is.gd/SxE0Dy from Leagle.com. Tara Casey, on behalf of herself and all others similarly situated, Plaintiff, represented by Douglas Gregory Blankinship -- gblankinship@fbfglaw.com -- Finkelstein Blankinship, Frei- Pearson & Garber, LLP & Todd Seth Garber -- tgarber@fbfglaw.com -- Finkelstein Blankinship, Frei- Pearson & Garber, LLP. Odwalla, Inc. & The Coca-Cola Company, Defendants, represented by Desiree Marie Ripo -- desiree.ripo@alston.com -- Alston & Bird, LLP & Jeffrey A. Rosenfeld -- jeffrey.rosenfeld@alston.com -- DLA Piper LLP, pro hac vice. PCL CONSTRUCTION: Final Judgment in Power Outage Suit Entered ------------------------------------------------------------- Judge James C. Dever, III of the U.S. District Court for the Eastern District of North Carolina, Eastern Division, has entered the Final Judgment in the case, IN RE: OUTER BANKS POWER OUTAGE LITIGATION, This Document Relates To: All Actions, Master File No. 4:17-CV-141-D (E.D. N.C.). On Sept. 21, 2018, the Court granted the Plaintiffs' motion for final approval of a class action settlement, and entered a Final Approval Order. It finds that the Settlement Class as defined in the Settlement Agreement meets the requirements of Federal Rules of Civil Procedure 23(a) & (b)(3). Thus, it certified the Settlement Class. The Court finds that class notice satisfied the requirements of Rule 23 and the Due Process Clause. It also finds that the Settlement Agreement is fair, reasonable, and adequate under Federal Rule of Civil Procedure 23(e). Accordingly, the Court approved the final class action settlement. The Settlement Classes includes: A. Business Class: All businesses located and/or operating on Hatteras and Ocracoke Islands during the time of the Incident. The class does not include persons or entities renting homes to vacationers. B. Rental/Vacationer Class: All persons who rented a vacation property on Hatteras or Ocracoke Islands during the time of the Incident, together with all persons or entities that rented homes to Vacationers. C. Resident Class: All permanent residents of Hatteras and Ocracoke Islands at the time of the Incident. Regardless of whether the Settlement Class Members make claims under the Settlement Agreement, the Court's Final Approval Order and Final Judgment dismissed with prejudice the Plaintiffs' and Settlement Class Members' claims and pursuant to the Settlement Agreement. All the Settled Claims as against the Defendants and the Released Parties are dismissed with prejudice. The Judge expressly directed the Clerk of Court immediately to enter the Final Judgment. Upon entry, the Court decreed that the document be deemed a Final Judgment. A full-text copy of the Court's Sept. 21, 2018 Final Judgment is available at https://is.gd/oCiZBe from Leagle.com. Island Vibe Cafe, Morning Star Stables, TBM Construction & Michael Janssen, Plaintiffs, represented by Jean S. Martin, Law Office of Jean Sutton Martin, PLLC, John A. Yanchunis, Morgan & Morgan Complex Litigation Group, Joseph G. Sauder -- jgs@mccunewright.com -- McCune Wright Arevalo LLP & Daniel K. Bryson -- dan@wbmllp.com -- Whitfield, Bryson & Mason, LLP. Rhonda Derring, Robert Case & Marissa Gross, d/b/a Down Creek Galleries, Plaintiffs, represented by Daniel K. Bryson, Whitfield, Bryson & Mason, LLP, Matthew E. Lee -- matt@wbmllp.com -- Whitfield, Bryson & Mason, LLP, Scott C. Harris -- scott@wbmllp.com -- Whitfield, Bryson & Mason, LLP & Joseph G. Sauder, McCune Wright Arevalo LLP. Miss Ocracoke, Inc., Stephen J Wilson, Hatteras Blue, Inc., Steven J. Harris, Steven Wright, Charles Edward Hofmann & Alex Daniel Garrish, Plaintiffs, represented by John R. Taylor, Zaytoun Law Firm, PLLC, Matthew David Ballew, Zaytoun Law Firm, PLLC, Robert E. Zaytoun, Zaytoun Law Firm, PLLC, Joseph G. Sauder, McCune Wright Arevalo LLP & Daniel K. Bryson, Whitfield, Bryson & Mason, LLP. Matthew Breveleri, Plaintiff, represented by Jean S. Martin, Law Office of Jean Sutton Martin, PLLC, Patrick Donovan -- donovan@whafh.com -- Wolf Haldenstein Alder Freeman & Herz LLP, Thomas H. Burt -- burt@whafh.com -- Wolf Haldenstein Alder Freeman & Herz LLP, Joseph G. Sauder, McCune Wright Arevalo LLP & Daniel K. Bryson, Whitfield, Bryson & Mason, LLP. Thomas Edgar, Nina Edgar, Edward Waas & Jack Lewis, Plaintiffs, represented by J. Michael Malone, Hendren, Redwine & Malone, PLLC, Joseph G. Sauder, McCune Wright Arevalo LLP & Daniel K. Bryson, Whitfield, Bryson & Mason, LLP. Briggs McEwan, Las Olas, Inc., Tri-V Conery, Inc., Tami Lynette Gray, d/b/a Family Water Adventures, Daniel Spaventa, Karen Fitzpatrick & Edwin Fitzpatrick, Plaintiffs, represented by Dennis C. Rose, Rose Harrison & Gilreath, P.C., John S. Hughes, Wallace and Graham, P.A., M. Peebles Harrison, Rose Harrison & Gilreath, P.C., Mona Lisa Wallace, Wallace and Graham, P.A., Joseph G. Sauder, McCune Wright Arevalo LLP & Daniel K. Bryson, Whitfield, Bryson & Mason, LLP. Mike Warren, William Bailey & Kerry Fitzgerald, Plaintiffs, represented by Daniel K. Bryson, Whitfield, Bryson & Mason, LLP. PCL Construction Enterprises, Inc., PCL Civil Constructors, Inc., PCL Construction Services, Inc. & PCL Construction Resources (U.S.A.), Inc., Defendants, represented by Alexandra L. Couch -- acouch@ymwlaw.com -- Yates, McLamb & Weyher, LLP, David Michael Fothergill -- dfothergill@ymwlaw.com -- Yates, McLamb & Weyher, LLP & Rodney E. Pettey -- rpettey@ymwlaw.com -- Yates, McLamb & Weyher, LLP. PETSMART INC: Nov. 6 Hearing on Milburn Deal Prelim Approval Bid ---------------------------------------------------------------- In the case, WILLIAM L. MILBURN, individually and on behalf of others similarly situated, Plaintiff, v. PETSMART, INC., and Does 1 through 50, inclusive, Defendants, Case No. 1:18-CV-00535-DAD-SKO (E.D. Cal.), Judge Sheila K. Oberto of the U.S. District Court for the Eastern District of California, Fresno Division, granted the parties' Joint Stipulation for Further Extension of Time to File Plaintiff's Motion for Preliminary Approval of Class Action Settlement. Pursuant to the parties' stipulation, the filing deadline for the Plaintiff's Motion for Preliminary Approval of Class Action Settlement, currently due Sept. 19, 2018, will be extended seven days to Sept. 26, 2018. In further accordance with the parties' stipulation, the hearing on the Plaintiff's Motion for Preliminary Approval of Class Action Settlement is set for Nov. 6, 2018, at 9:30 a.m. in Courtroom 5 (DAD) before District Judge Dale A. Drozd. A full-text copy of the Court's Sept. 19, 2018 Order is available at https://is.gd/eOnKa9 from Leagle.com. William L. Milburn, individually and on behalf of all other current and former similarly situated and aggrieved employees of Defendants in the State of California, Plaintiff, represented by Geoffrey Drew La Val, Graham Hollis APC & Graham S.P. Hollis, GrahamHollis, APC. PetSmart, Inc., Defendant, represented by Alexander L. Grodan -- alexander.grodan@morganlewis.com -- Morgan Lewis & Bockius LLP & Carrie Anne Gonell -- carrie.gonell@morganlewis.com -- Morgan Lewis & Bockius LLP. PORTFOLIO RECOVERY: Court Denies Bid to Dismiss Madinya FDCPA Suit ------------------------------------------------------------------ In the case, SANDRA MADINYA, on behalf of herself and all others similarly situated, Plaintiff, v. PORTFOLIO RECOVERY ASSOCIATES, LLC, Defendant, Case No. 18-cv-61138-BLOOM/Valle (S.D. Fla.), Judge Beth Bloom of the U.S. District Court for the Southern District of Florida denied both the Defendant's Motion to Dismiss Complaint with Incorporated Memorandum of Law and Motion to Transfer Related Case with Incorporated Memorandum of Law. Madinya filed the putative class action against the Defendant under the Fair Debt Collection Practices Act ("FDCPA"), stemming from a letter sent to the Plaintiff on Feb. 21, 2018 to collect on a time-barred debt. The Plaintiff alleges that she used a Capital One Bank, N.A., credit card to purchase household items, incurring a consumer debt under 15 U.S.C. Section 1692a(5). The Defendant was assigned to collect the debt. At the time she received the Letter in the mail related to the Capital One credit card debt, the debt was time-barred. The Plaintiff alleges that the letter violates the FDCPA because it fails to disclose to her that should she make a partial payment on the debt, the Defendant's right to sue for the debt would be "revived" under Florida law. The Complaint further includes allegations on behalf of a putative class of all consumers in the state of Florida who were sent a Collection Letter from PRA substantially similar or materially identical to the Letter delivered to the Plaintiff, within the applicable limitations period. Based on these allegations, the Plaintiff alleges in a single count violations of 15 U.S.C. Sections 1692e, 1692e(2)(A), 1692e(10), and 1692f. According to her, although it may not be improper for the Defendant to seek repayment for a time-barred debt, in doing so, the Defendant must avoid creating a misleading impression regarding the consequences of making partial payment on a time-barred debt, and clearly and prominently disclose that partial payment would revive the statute of limitations. The Defendant seeks to dismiss the Complaint, arguing that it fails to state a claim under the FDCPA, and that in any event, it is protected by the safe harbor provision in the FDCPA. The Defendant also seeks a transfer, based upon similarities between the instant case and Gomes v. Portfolio Recovery Associates, LLC, Case No. 18-cv-21872, currently pending before Judge Altonaga. Judge Bloom is unpersuaded by the Defendant's argument that CFPB's own research indicating that a disclosure regarding revival of the statute of limitations may confuse consumers and suggesting instead that the Consumer Financial Protection Bureau ("CFPB") issue a regulation requiring collectors to actively waive the right to sue, should be dispositive in the case. As alleged by the Plaintiff, notwithstanding the Disclaimer Language, the Defendant's Letter may mislead the least sophisticated consumer to believe that partial payment is better than no payment at all, and entice unsuspecting consumers to make partial payments in order to revive its ability to pursue legal action. While this may not be the only way to read Defendant's Letter, it is certainly a plausible interpretation. The mere assertion that the law limits how long a consumer can be sued and that Defendant will not sue, does not communicate the legal reality that the Plaintiff, by making a partial payment may revive the statute of limitations, and therefore, the Defendant's right to sue. As a result, contrary to the Defendant's assertion, the Judge finds that the language in the Letter does not entitle the Defendant to protection under the FDCPA's safe harbor provision. For the reasons set forth, Judge Bloom denied the Defendant's Motion to Dismiss and Motion to Transfer. The Defendant will file its Answer to the Complaint by Sept. 28, 2018. A full-text copy of the Court's Sept. 19, 2018 Order is available at https://is.gd/Wy1ZNR from Leagle.com. Sandra Madinya, on behalf of herself and all others similarly situated, Plaintiff, represented by Darren R. Newhart -- darren@cloorg.com -- Consumer Law Organization, P.A. & Jordan Alexander Shaw -- jshaw@zpllp.com -- ZEBERSKY PAYNE. Portfolio Recovery Associates, LLC, Defendant, represented by Sara F. Holladay-Tobias -- stobias@mcguirewoods.com -- McGuire Woods & Brittney Lauren Difato -- bdifato@mcguirewoods.com -- McGuireWoods LLP. PROFESSIONAL FRAME: Accused by Ventura of Not Paying Overtime Wages ------------------------------------------------------------------- LIBERATO VENTURA, and all others similarly situated under 29 U.S.C. Section 216(b) v. PROFESSIONAL FRAME AND HOME and WILLIAM LINARES, Case No. 3:18-cv-02659-B (N.D. Tex., October 8, 2018), accuses the Defendants of willfully and intentionally refusing to pay the Plaintiff's overtime wages as required by the Fair Labor Standards Act. Professional Frame and Home is a company that regularly transacts business within the Northern District of Texas. William Linares is a corporate officer, owner or manager of Professional Frame.[BN] The Plaintiff is represented by: J.H. Zidell, Esq. Robert L. Manteuffel, Esq. Joshua A. Petersen, Esq. J.H. ZIDELL, P.C. 6310 LBJ Freeway, Suite 112 Dallas, TX 75240 Telephone: (972) 233-2264 Facsimile: (972) 386-7610 E-mail: zabogado@aol.com rlmanteuffel@sbcglobal.net josh.a.petersen@gmail.com PROFLOWERS: 9th Cir. Vacates $8.7MM Attorneys' Fees Award --------------------------------------------------------- Dorothy Atkins, writing for Law360, reports that a Ninth Circuit panel on Oct. 3 vacated a $8.7 million attorneys' fees award in a $38 million settlement resolving claims against the company behind the websites Proflowers.com and RedEnvelope.com. [GN] PROGRESSIVE BUSINESS: Faces Consumer Credit Suit in Ca. ------------------------------------------------------- A class action lawsuit has been filed against Progressive Business Funding, Inc. The case is styled as Virgil E. Brown Insurance for itself and on behalf of all others similarly situated, Modern Hearing Solutions of Canton, Inc. for itself and on behalf of all others similarly situated, Plaintiffs v. Progressive Business Funding, Inc., Defendant, Case No. 3:18-cv-02386-LAB-KSC (S.D. Cal., Oct. 18, 2018). The nature of suit is stated as consumer credit for unsolicited telephone sales. Virgil E. Brown Insurance is an independent Insurance agency on the East Side of Cleveland, selling home, auto, umbrella, and small business insurance. Progressive Business Funding provides loan solutions including working capital loans, small business loans, equipment financing & merchant cash advance.[BN] The Plaintiffs are represented by: Bryan Kenton Theis, Esq. Theis Law Group 533 Second Street, Suite 400 Encinitas, CA 92024 Phone: (213) 261-4240 Fax: (833) 276-7001 Email: bryan@theislaw.com PROGRESSIVE CASUALTY: Mitchell Dismissed from Jones TAC ------------------------------------------------------- In the case, BOBBY JONES, individually, and on behalf of all others similarly situated Plaintiff, v. PROGRESSIVE CASUALTY INSURANCE COMPANY, et al., Defendants, Case No. 16-cv-06941-JD (N.D. Cal.), Judge James Donato of the U.S. District Court for the Northern District of California granted in part and denied in part the remaining Defendants' motion to dismiss the Third Amended Complaint ("TAC") under Federal Rule of Civil Procedure 12(b)(6). In the putative class action, named Plaintiff Jones has sued Defendants Progressive Casualty Insurance Co. and Progressive Select Insurance Co., and Mitchell International, Inc., for fraud and other consumer claims relating to automobile insurance. Jones alleges that Progressive and Mitchell, a provider of claim services, surreptitiously used low-value salvage vehicles to determine payments to insureds whose cars had been declared a total loss. Two other Progressive entities, Progressive Corp. and Progressive Direct Dnsurance Co., have been dismissed without prejudice. The remaining Defendants move to dismiss the TAC under Federal Rule of Civil Procedure 12(b)(6). As alleged in the TAC, Jones bought a 1999 Chevrolet Venture in 2015 for $3,250. He insured his car with Progressive. Less than a month after the purchase, Jones got into an accident that totaled the car and sent him and his wife to the hospital. He filed an insurance claim with Progressive, which it eventually settled over the "total loss" of his vehicle for $2,800. The complaint focuses on Progressive's and Mitchell's conduct during the claim settlement process. To determine the coverage payment to Jones, Progressive engaged Mitchell to find valuations of "comparable vehicles." Progressive gave Jones a search report from Mitchell that stated a value of $2,413.41 for a car of the same year, make, and model as Jones's. The report did not disclose that the vehicle in the report had a "salvage title," which meant it was itself a total loss. Another report listed other low-valuation comparables from dealerships that Jones alleges were never actually contacted by Mitchell. Jones asked Progressive to use the price of his own vehicle, which he had bought just a few weeks before the accident, but Progressive declined. Jones says the reports misled him about the value of his claim, and that he relied on them to settle for less than he was entitled to recover. He alleges seven California state law claims on behalf of himself and a putative class of Progressive policyholders in California for fraud, misrepresentation, breach of contract, breach of the implied covenant of good faith and fair dealing, intentional interference with contractual relations, and violations of the Unfair Competition Law ("UCL") and Consumers Legal Remedies Act ("CLRA"). Progressive and Mitchell move to dismiss all the claims against them under Rule 12(b)(6). Judge Donato granted in part and denied in part the motion. The CLRA claim against Progressive is dismissed without prejudice. Progressive's motion to dismiss is denied in all other respects. Because the TAC is the fourth complaint in the case, the Judge will not automatically grant further leave to amend for the CLRA. Jones has had ample opportunity to tee up that claim. If future circumstances warrant, he may file a motion for leave to amend. The Judge granted Mitchell's motion to dismiss , and all claims against it are dismissed without prejudice. Because this is the fourth time around on the complaint, he would be well within his discretion to dismiss with prejudice. Even so, the Judge indicated at the hearing that it would dismiss without prejudice and allow Jones to request leave to amend if warranted by discovery. The Court will stick with that course of action. Judge Donato finds that the TAC expressly alleges that Jones relied on the valuation statements and reports provided by Progressive to accept the payment it tendered. Jones provides enough specificity about the reports and statements he alleges were false or misleading to give fair notice of the claim. Progressive challenges the veracity of these allegations, but that question is reserved for summary judgment or trial. He also finds that Jones' UCL claim is predicated on the fraud and misrepresentations claims that Progressive settled coverage claims on the basis of misleading valuation reports. That is enough under the UCL. Progressive's argument under the Unfair Insurance Practices Act ("UIPA") does not change this conclusion. The statute does not grant a private right to sue, and the California Supreme Court has warned against UIPA claims dressed in other robes. Nevertheless, claims premised on fraud and breach of contract may proceed under the UCL even if the relevant conduct arguably violated the UIPA. The UCL claim fits comfortably within these parameters, and so dismissal is denied. Jones acknowledges that he did not comply with these procedural requirements but says he should be excused because the Defendants had actual notice of the claims against them. That is a questionable proposition because the TAC is the first complaint to assert a CLRA claim. In any event, the statute requires a literal application of the notice provisions. Consequently, the CLRA claim is dismissed. In contrast to Progressive, the claims against Mitchell are not sufficiently plausible to go forward. To start, the complaint generally lumps Mitchell together with Progressive, with no meaningful distinctions drawn between them. That will not do. This problem is all the more striking in the TAC because Jones was advised before filing it to clarify the misrepresentations attributable to Mitchell. Consequently, the fraud and misrepresentation claims against Mitchell are dismissed. The UCL claim, which is predicated on the same conduct, is dismissed for the same reason. And becasuse Jones does not plausibly allege that Mitchell intended to breach or disrupt his insurance contract with Progressive, or knew its actions would likely lead to that result, the claim is dismissed. The CLRA claim against Mitchell suffers from the same procedural deficiencies as the one against Progressive. It too is dismissed. A full-text copy of the Court's Sept. 19, 2018 Order is available at https://is.gd/kUYnD0 from Leagle.com. Bobby Jones, Individually, and on behalf of all others similarly situated, Plaintiff, represented by David Alexander Kleczek -- david.kleczek@kleczeklaw.com -- Kleczek Law Office & Herbert Paul Bryant -- hpaulbryantlaw@gmail.com -- Law Offices of H. Paul Bryant. Progressive Casualty Insurance Company & The Progressive Corporation, Defendants, represented by Julia Constance Barrett -- jbarrett@kslaw.com -- King and Spalding LLP, pro hac vice, Zachary Andrew McEntyre -- jbarrett@kslaw.com -- King and Spalding LLP, Jeffrey S. Cashdan -- jcashdan@kslaw.com -- pro hac vice & Timothy Tully Scott -- tscott@kslaw.com -- King & Spalding LLP. Mitchell International, Inc., Defendant, represented by Scott Thomas Schutte -- scott.schutte@morganlewis.com -- Morgan, Lewis and Bockius LLP, pro hac vice, Gregory Thomas Fouts -- gregory.fouts@morganlewis.com -- Morgan Lewis Bockius LLP, Phillip Jared Wiese -- phillip.wiese@morganlewis.com -- Morgan, Lewis and Bockius & Tedd Macrae Warden -- tedd.warden@morganlewis.com -- Morgan Lewis Bockius LLP. PROLOG CORP: Podzemelnyy Seeks to Recoup Minimum & Overtime Wages ----------------------------------------------------------------- ALEXANDER PODZEMELNYY, and other similarly situated individuals v. PROLOG CORP., VOLODYMYR HENDRIK, and NATALIYA HENDRIK, Case No. 0:18-cv-62395-FAM (S.D. Fla., October 8, 2018), seeks to recover money damages for unpaid minimum and overtime wages under the Fair Labor Standards Act. Prolog Corp. is a Florida company with its main place of business located in Broward County, Florida. The Corporate Defendant is a trucking company. The Individual Defendants are owners or officers of the Corporate Defendant.[BN] The Plaintiff is represented by: R. Martin Saenz, Esq. SAENZ & ANDERSON, PLLC 20900 NE 30th Avenue, Suite 800 Aventura, FL 33180 Telephone: (305) 503-5131 Facsimile: (888) 270-5549 E-mail: msaenz@saenzanderson.com SCHARFMAN ORGANIZATION: Tenants File Rent Fraud Class Action ------------------------------------------------------------ Will Parker, writing for The Real Deal, report that it's been a slow march in the state courts, but two class action lawsuits generated by the Housing Rights Initiative achieved class certification -- the first of the group's cases to reach this milestone. Over the last two years HRI has organized more than 40 lawsuits against landlords, most alleging "schemes" to up rents more than prevailing laws allow. The first of the two landlords in the class actions, Scharfman Organization, is alleged to have defrauded tenants of 260 Convent Avenue in Hamilton Heights. In the second, Richard Albert is similarly accused by his tenants at 3045 Godwin Terrace in the Bronx. Both lawsuits allege the landlords' companies broke the law by accepting the J-51 property tax benefit while deregulating rent-stabilized apartments. Keeping apartments rent-stabilized is a required condition of tax program, according to state law. Should they win their cases, the more than 100 current and former tenants of both buildings could receive rent overcharge refunds and damages. "My constituents living at 3045 Godwin Terrace deserve better!" Bronx City Council member Andrew Cohen said in a statement. "They deserve to have their rent-stabilized leases rightfully restored to their apartments." Albert was not reachable by phone and Mark Scharfman declined to comment. This is the ninth complaint HRI has helped put together against Mr. Scharfman's companies. Apart from J-51 cases, HRI has ventured into less tested waters by filing class actions against landlords alleged to have overcharged on rent by exaggerating the cost of apartment renovations, or "Individual Apartment Improvements." A couple of these cases were dismissed by lower courts and then refiled. One, against Harlem property owner Big City Realty, faced an appeals court panel in July. The majority of the panel decided the complaint should have survived a motion to dismiss so that discovery could first be granted to the tenant plaintiffs to help prove their claims. [GN] SCHWAB INVESTMENTS: Dismissal of Northstar Suit Partly Affirmed --------------------------------------------------------------- In the case, NORTHSTAR FINANCIAL ADVISORS, INC., on behalf of itself and all others similarly situated, Plaintiff-Appellant, v. SCHWAB INVESTMENTS; MARIANN BYERWALER; DONALD F. DORWARD; WILLIAM A. HASLER; ROBERT G. HOLMES; GERALD B. SMITH; DONALD R. STEPHENS; MICHAEL W. WILSEY; CHARLES R. SCHWAB; RANDALL W. MERK; JOSEPH H. WENDER; JOHN F. COGAN; CHARLES SCHWAB INVESTMENT MANAGEMENT, INC., Defendants-Appellees, Case No. 16-15303 (9th Cir.), Judge Kathleen M. O'Malley of the U.S. Court of Appeals for the Ninth Circuit affirmed in part and reversed in part the district court's dismissal of all of Northstar's claims. Northstar is a registered investment advisory and financial planning firm that manages accounts on behalf of investors. During the relevant time period, Northstar traded through Charles Schwab's Institutional Advisor Platform, where it purchased shares in the Schwab Total Bond Market Fund ("Fund") for its clients. The Schwab Trust ("Trust") is a Massachusetts Business Trust having assets held by a group of trustees who manage and supervise the Fund's operations for the benefit of its shareholders, the Trust's beneficiaries. Charles Schwab Investment Management, Inc. ("Schwab Advisor"), an investment advisory firm affiliated with the Trust, has acted as the manager of, and investment advisor to, the Trust in accordance with a June 1994 Investment Advisory Agreement ("IAA"). The Schwab Advisor oversees the dayto-day operations of the Fund, including selection of investments. Northstar's core allegations have remained the same across its five complaints. In a July 1997 Proxy Statement, the Trustees sought a shareholder vote on two proposals relevant to the appeal. Proposal No. 2 would amend the Fund's fundamental investment objective to track the investment results of the Lehman Brothers Aggregate Bond Index. Proposal No. 3 would change the Fund's fundamental investment policies and investment restrictions regarding the concentration of investments to incorporate the SEC's interpretation of concentration from the Investment Company Act of 1940 ("ICA"), which was and is 25% of the available assets in a fund. A majority of Fund shareholders voted to approve the proposals. As a result, the Trust was obligated to seek to track the Index and to invest no more than 25% of the Fund's total assets in any one industry. From August 1997 through August 2007 -- which Northstar refers to as the "Pre-Breach period" -- the Fund's investments performed in a manner substantially consistent with the Index. During this period, the Fund continuously offered its shares to the public pursuant to annual prospectuses, which affirmed to potential and current shareholders that the Trust was following the fundamental investment objectives set forth in the 1997 Proxy Statement. From August 2007 until February 2009 -- which Northstar refers to as the "Breach period" -- the Trust continued to represent in Fund prospectuses and other public filings that the Fund would be managed conservatively and passively, and would be invested in the same securities as the Index, pursuant to its fundamental investment objective. In September 2007, however, the Trust caused the Fund to deviate from its fundamental investment policies by investing in collateralized mortgage obligations that were not part of the Index, and by concentrating more than 25% of the Fund's total assets in mortgage-backed securities and collateralized mortgage obligations. The Fund deviated from its fundamental investment policies until about the end of February 2009. Fund shareholders suffered financial injury due to the Fund's deviation, as the Fund underperformed the Index during this time. The case has a lengthy procedural history that includes the dismissal of successive amended complaints for failures to state claims. In June 2015, Northstar filed its Fourth Amended Complaint. In that complaint, Northstar asserted claims on behalf of Fund shareholders who purchased shares during the Breach period, as well as those who purchased shares during the Pre-Breach period but held them during the Breach period. The complaint alleges 14 causes of action: seven pertaining to the Pre-Breach class, and seven pertaining to the Breach class. With respect to each class, Northstar alleged breach of fiduciary duties against both the Trust and the Trustees; breach of fiduciary duty against the Schwab Advisor; aiding and abetting breach of fiduciary duty against the Trustees and the Schwab Advisor; breach of contract as third-party beneficiary to the IAA against the Schwab Advisor; breach of contract against the Trust; and breach of the covenant of good faith and fair dealing against the Schwab Advisor and the Trustees. Northstar alleged that its claims, if barred by Securities Litigation Uniform Standards Act ("SLUSA"), are nonetheless preserved by the Delaware carve-out. The district court granted in part and denied in part the Defendants' motion to dismiss. In particular, it granted the motion to dismiss, with prejudice, Northstar's claims for breach of contract and breach of the covenant of good faith and fair dealing, concluding that SLUSA barred those claims and that they did not fall within the Delaware carve-out. The district court also granted the motion to dismiss, with prejudice, Northstar's breach of fiduciary duty claims insofar as these claims pertain to an alleged breach of fiduciary duty by the Trust. The district court reasoned that any such duties were owed by the Trustees, rather than by the Trust itself. It further granted the motion to dismiss, with prejudice, Northstar's third-party beneficiary claims, breach of contract claims, and breach of the covenant of good faith and fair dealing claims, concluding that SLUSA also barred those claims and that they did not fall within the Delaware carve-out. The district court denied the motion to dismiss the remaining claims, however, which alleged breaches of fiduciary duties by the Trustees and the Schwab Advisor, and aiding and abetting such breaches. The district court reasoned that the Defendants could not assert a SLUSA defense to these claims in a Rule 12(b)(6) motion, but that they could raise such a defense by filing a motion for judgment on the pleadings. The Defendants subsequently moved for judgment on the pleadings, arguing that the breach of fiduciary duty and aiding and abetting claims were barred by SLUSA, and the district court granted the motion. The appeal timely followed. In the appeal, Judge O'Malley considers whether the SLUSA precludes class claims brought under state law by Northstar against the Defendants"). She concludes that SLUSA precludes all of Northstar's claims, and that the district court therefore correctly dismissed them. The district court erred, however, in dismissing the claims with prejudice. She finds that the Pre-Breach class claims arise from more than the alleged fact of the Defendants' breaches; their claims are only possible because of their concealment of those breaches. The claims are no less tied to the Defendants' misstatements and omissions during the Breach Period than are the Breach Class claims themselves. She therefore concludes that the Pre-Breach class claims are barred by SLUSA. And because the Breach class claims depend on a misrepresentation or omission of a material fact, these claims are barred by SLUSA. The Breach class claims are also not permissible actions under the statute, because they likewise do not involve any communication that concerns decisions of those equity holders with respect to voting their shares. The Breach class claims that are subject to SLUSA are based on misrepresentations that occurred between 2007 and 2009. The only vote that occurred with respect to these securities occurred in 1997. The misrepresentations that underlie the Breach class claims were thus not made to shareholders in advance of, or to influence, any vote. Those communications therefore do not concern any decisions of shareholders with respect to voting their securities. The carve-out does not save Northstar's claims. The Judge therefore affirms the district court's dismissal of all of Northstar's claims. However, she finds that the district court erred in dismissing Northstar's claims with prejudice. Northstar should be granted leave to amend its complaint. To the extent that SLUSA bars a plaintiff's claims, it does so by depriving the district court of jurisdiction to hear his state-law claims on a class-wide basis. Thus, it is error to dismiss such claims under Rule 12(b)(6); they should be dismissed under Rule 12(b)(1) without prejudice. She therefore reverses the district court's contrary ruling and remands to give Northstar the opportunity to amend its complaint. Each party shall bear its own costs. A full-text copy of the Court's Sept. 14, 2018 Opinion is available at https://is.gd/fokvIm from Leagle.com. Robert C. Finkel (argued), Wolf Popper LLP, New York, New York; Joseph J. Tabacco Jr. -- jtabacco@bermandevalerio.com -- and Christopher T. Heffelfinger -- cheffelfinger@bermandevalerio.com -- Berman DeValerio, San Francisco, California; Marc J. Gross -- mgross@greenbaumlaw.com -- Greenbaum Rowe Smith & Davis LLP, Roseland, New Jersey; for Plaintiff-Appellant. Matthew L. Larrabee (argued), Joshua D.N. Hess -- joshua.hess@dechert.com -- and Brian C. Raphel , Dechert LLP, San Francisco, California; Richard A. Schirtzer , Karin A. Kramer -- karinkramer@quinnemanuel.com -- and Arthur M. Roberts -- arthurroberts@quinnemanuel.com -- Quinn Emanuel Urquhart & Sullivan LLP, San Francisco, California; for Defendants-Appellees. SENTRY LIFE: Emerson Suit Stayed Pending Resolution of Maxon Suit ----------------------------------------------------------------- In the cases, ANNELIESE EMERSON, on behalf of herself and all others similarly situated, Plaintiff, v. SENTRY LIFE INSURANCE COMPANY, Defendant. PRUDENCE F. MAXON, on behalf of herself and all others similarly situated, Plaintiff, v. SENTRY LIFE INSURANCE COMPANY, Defendant, Case Nos. 18-cv-379-jdp, 18-cv-254-jdp (W.D. Wis.), Judge James D. Peterson of the U.S. District Court for the Western District of Wisconsin (i) granted Sentry's motion to stay Emerson's case pending the resolution of Maxon v. Sentry Life Insurance Company, No. 18-cv-254 (W.D. Wis.), and (ii) denied Emerson's cross-motion to consolidate her suit with Maxon. Emerson filed a lawsuit against Sentry Life Insurance Company for breach of contract on behalf of herself and a proposed class of other Sentry life insurance policyholders. Her case is substantively identical to a previously filed proposed class action, Maxon, which was filed in the Middle District of Florida in August 2017 and transferred to the Western District of Wisconsin this past April. Maxon and Emerson are both longtime holders of Sentry universal life insurance policies. Both allege that Sentry has improperly increased the cost of insurance ("COI") charges that Sentry deducts from policyholders' accounts each month by considering factors unrelated to mortality expectations. Maxon filed first, bringing class-wide claims for breach of contract, conversion, and declaratory and injunctive relief. The parties conducted substantial discovery in the Middle District of Florida before a motion to transfer landed the case here. A little more than a month after the change of venue, and nine months after the Maxon case was filed, Emerson filed a suit of her own against Sentry in the district. She pleaded the same class-wide breach of contract claim as Maxon, and proposed an identical briefing and trial schedule. Neither Emerson nor Sentry disputes that the two proposed class actions are substantively identical. But they disagree about how to proceed. Sentry has moved for a stay, and asks the Court not to allow the simultaneous prosecution of redundant lawsuits. Emerson has responded with a motion to consolidate under Federal Rule of Civil Procedure 42(a), arguing that consolidation will serve judicial economy and avoid undue prejudice. The Court also received briefing from Maxon, who opposes consolidation and joins Sentry in advocating that Emerson be stayed while her first-filed case is litigated. Judge Peterson finds that all of the relevant factors in the case counsel in favor of granting a stay and denying the motion to consolidate. First, Emerson is at an early stage of litigation, whereas Maxon is considerably further along. Second, Emerson is unlikely to suffer prejudice as a result of a stay. As to the third and fourth factors, granting a stay seems likely to simplify the issues, whereas consolidating the actions seems likely to further complicate matters and increase the burdens of litigation. These considerations militate in favor of a stay and against consolidation. The Judge holds that the Court has broad managerial discretion to prevent unnecessary duplication of effort in related cases through consolidation or other means. Here, a stay provides the other means to prevent the inevitable duplication that Emerson's suit would create. For these reasons, Judge Peterson (i) granted the Defendant Sentry's motion to stay, and (ii) denied Emerson's cross-motion to consolidate. Case No. 18cv-379-jdp is stayed pending resolution of No. 18-cv-254-jdp. If the court denies class certification in No. 18-cv-254-jdp, Emerson may move to lift the stay at that time. A full-text copy of the Court's Sept. 14, 2018 Opinion and Order is available at https://is.gd/tLyGxg from Leagle.com. Prudence F. Maxon, Individually and On Behalf of all Others Similarly Situated, Plaintiff, represented by Angelica M. Ornelas, Girard Gibbs LLP, pro hac vice, Daniel C. Girard, Girard Gibbs LLP, pro hac vice, Elizabeth A. Kramer -- eak@girardgibbs.com -- Girard Gibbs, LLP, pro hac vice, Ethan M. Lange -- lange@stuevesiegel.com -- Stueve Siegel Hanson LLP, pro hac vice, Jason Toji Calabro -- calabro@stuevesiegel.com -- Stueve Siegel Hanson LLP, pro hac vice, John Schirger -- JSCHIRGER@MILLERSCHIRGER.COM -- Miller Schirger, LLC, pro hac vice, John Allen Yanchunis, Sr., Morgan & Morgan, Tampa P.A., Joseph Michael Feierabend -- JFEIERABEND@MILLERSCHIRGER.COM -- Miller Schirger LLC, pro hac vice, Matthew W. Lytle -- MLYTLE@MILLERSCHIRGER.COM -- Miller Schirger LLC, pro hac vice, Norman E. Siegel -- siegel@stuevesiegel.com -- Stueve Siegel Hanson LLP, pro hac vice, Patrick J. Stueve -- stueve@stuevesiegel.com -- Stueve Siegel Hanson LLP, pro hac vice & Andrew W. Erlandson -- aerlandson@hurleyburish.com -- Hurley, Burish & Stanton, S.C. Sentry Life Insurance Company, Defendant, represented by Benjamine Reid -- breid@carltonfields.com -- Carlton Fields Jorden Burt, PA, Clifton Richard Gruhn -- cgruhn@carltonfields.com -- Carlton Fields Jorden Burt, P.A., Shaunda Patterson-Strachan -- spatterson-strachan@carltonfields.com -- Carlton Fields Jorden Burt, PA, pro hac vice, Waldemar Jacob Pflepsen, Jr. -- wpflepsen@carltonfields.com -- Carlton Fields Jorden Burt, PA, pro hac vice & Kendall W. Harrison -- kharrison@gklaw.com -- Godfrey & Kahn, S.C.. SHELL OIL: Class Action Over Ski Slopes Coupons Settled ------------------------------------------------------- Beth Farnsworth, writing for KEYT, reports that false promises of a free day on the ski slopes lead to a settlement in a class action lawsuit. Reporter Beth Farnsworth obtained a copy of a flyer posted several years ago by a vendor at Shell gas stations near ski resorts in Northern California. "This advertising, they were coupons given out at Shell Oil gas stations in California, Oregon, Washington and Michigan," said Rick Coplan, President of Santa Barbara, San Luis Obispo and Ventura Counties Better Business Bureau. "It had to do with skiing for free; If you bought 10 gallons worth of gas, you got a free lift ticket. However, the other important conditions weren't disclosed." Including the requirement that the consumer had to buy a full-priced ticket as well, and that there were "blackout" day restrictions, none of which was advertised. Robert Curtis -- rcurtis@foleybezek.com -- an attorney with Foley Bezek Behle & Curtis in Santa Barbara, handled the case and said none of our local Shell stations were involved. Mr. Curtis revealed details of the settlement in the amount of nearly $600,000 dollars which will be split between two organizations known for their devotion to fighting fraud: The Better Business Bureau (BBB) and The Association of American Retired People (AARP). "(Misled) people who bought tickets were refunded $40 dollars per person," Mr. Curtis said. "Whatever was left was distributed by court order." The BBB and AARP were the two charities chosen to split nearly $600,000 dollars. Each will receive $287,771.50 from the 2016 settlement. Mr. Coplan said the BBB funds will be divided between their respective areas for the purpose of consumer education. The funds were set to be handed over on Sept. 27 at 9:30 a.m. during a presentation by Mr. Curtis under the arch at the historic Santa Barbara County Courthouse. [GN] SHERMAN'S 1400: Faces Disabilities Breach Suit in New York ---------------------------------------------------------- A class action lawsuit has been filed against Sherman's 1400 Broadway N.Y.C., LLC. The case is styled as Jose Figueroa on behalf of himself and all others similarly situated, Plaintiff v. Sherman's 1400 Broadway N.Y.C., LLC doing business as: Nat Sherman, Defendant, Case No. 1:18-cv-09584 (S.D. N.Y., Oct. 18, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. Shermans 1400 Broadway NYC Ltd operates as a private company. The Company works in the manufacturing and sales industry. Shermans 1400 Broadway NYC Ltd specializes in the production and sale of cigarettes. Shermans 1400 Broadway NYC Ltd works from its headquarters in the state of New York.[BN] The Plaintiff is represented by: Joseph H. Mizrahi, Esq. Cohen & Mizrahi LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Phone: (917) 299-6612 Fax: (929) 575-4195 Email: joseph@cml.legal SHILOH INDUSTRIES: Thomas SACAC Dismissed with Prejudice -------------------------------------------------------- In the case, RAYMOND THOMAS and WILLIAM PORTER, individually and on behalf of all others similarly situated, Plaintiffs, v. SHILOH INDUSTRIES, INC., RAMZI HERMIZ, and THOMAS M. DUGAN, Defendants, Case No. 1:15-CV-7449 (KMW) (S.D. N.Y.), Judge Kimba M. Wood of the U.S. District Court for the Southern District of New York granted the Defendants' motion to dismiss the Plaintiffs' Second Amended Class Action Complaint ("SACAC"). The case arises from alleged fraudulent financial reporting by Shiloh, a publicly-traded manufacturer of automotive materials. In 2015, an accountant at Shiloh's Wellington, Ohio, Facility sounded the alarm on possible fraudulent accounting. In response, Shiloh launched an internal investigation. The investigation revealed that the Wellington Facility's Controller, Eric Halterman, had been intentionally understating the Facility's costs. When Halterman's data was consolidated into the Company's financial reports, the effect was to falsely inflate Shiloh's net income. After Shiloh publicly announced the investigation, its share price fell. The share price dropped again after the Company restated its financials and admitted to investors that its internal controls on reporting were materially weak. A putative class of Shiloh shareholders then filed the suit. The Court dismissed the Plaintiffs' initial complaint because it failed to plead with particularity that any Defendant had the requisite scienter to be held liable for securities fraud. On a motion for reconsideration, the Court declined to vacate the dismissal, but granted the Plaintiffs leave to amend their initial complaint for the limited purpose of alleging facts demonstrating that Shiloh (as a corporate Defendant) had the requisite scienter. The Plaintiffs filed the SACAC on Aug. 4, 2017, which the Defendants now move to dismiss. The new allegations in the SACAC focus on the scienter of Halterman, the Wellington Facility Controller, and on Brian Harvey, Halterman's boss at the time of the alleged fraud. As the Wellington Facility Controller, Halterman was responsible for accounting at the Wellington Facility, overseeing four employees. Halterman reported to Group Controller Harvey. In his role as the Wellington Controller, Halterman was tasked with providing updates on the Wellington Facility's financials during weekly two-to-three hour meetings at which controllers from Shiloh's various plants discussed their budgets and financial forecasts with Shiloh's Vice President. According to the Plaintiffs, this task meant that Halterman "functionally" reported directly to Shiloh's Vice President. In 2014 and 2015, Halterman perpetrated an accounting fraud that resulted in Shiloh overstating its net income in public securities filings. He was fired "after it all blew up" at the Wellington Facility. Turning now to Harvey, the Plaintiffs allege that he was complicit in Halterman's fraud, or at least reckless in not discovering it. As Group Controller, Harvey worked one step below senior management, reporting directly to Shiloh's Vice President. In his role, Harvey oversaw approximately 25% to 30% of the company's plants, including the Wellington Facility. His responsibilities included reviewing Halterman's reports. The Plaintiffs allege that the day after an accountant at Wellington confronted Harvey about the fraud, Harvey stated that he was planning to resign; he did so within the month. A confidential witness stated that Harvey left as a result the investigation into the Wellington Plant. Taking the allegations as a whole, Judge Wood finds that the Plaintiffs still have not demonstrated that Halterman was sufficiently senior at Shiloh for his scienter to be imputed to the Company. In his role, Halterman was at least two levels removed from Shiloh's executive-level management: He reported to Harvey, the Group Controller, who in turn reported to the Company's Vice President of Finance. Far from being in charge of an entire division or region, Halterman supervised accounting at just one of Shiloh's twenty-one plants. The fact that Halterman updated Shiloh's executives on the Wellington Facility's financials during weekly calls does not change the nature of his role within the Company -- that is, he remained a low- to mid-level manager responsible for just a slice of the Company's accounting. The Plaintiffs' assertion that Shiloh managed the Wellington Facility (and thus Halterman) in a "hands-off' way does not alter this conclusion. Even crediting this conclusory allegation, the Judge finds that the Plaintiffs fail to explain why hands-off management would elevate Halterman's relative role within the company in a way that changes the imputation analysis. As to Harvey, the Judge finds that taken together the facts the Plaintiffs allege about Harvey's conduct do not give rise to a "strong inference" of scienter. The logical conclusion from the allegations in the SACAC is that Harvey was, at worst, negligent in failing to detect Halterman's fraud. Even assuming Harvey left as a result of the Company's investigation into the Wellington plant, that fact does not give rise to the inference that Harvey was aware of the fraud before the accountants at the Wellington Plant alerted him to it, or that he acted highly unreasonably in failing to detect it. He also finds that the Plaintiffs do not identify any reports, statements, or the like to which Harvey had access that would have alerted him to the Halterman's misreporting prior to one of the Wellington Plant accountant bringing it to his attention. Rather, the inference that Shiloh' fraudulent public statements were the result of merely careless mistakes at the management level based on false information fed it from below is more plausible than the inference of scienter that the Plaintiffs would have the Court draw. Such careless mistakes and poor oversight would have given Harvey a reason to preemptively resign and seek other employment, providing a more likely explanation for Harvey's departure than the one the Plaintiffs offer. In sum, the Plaintiffs fail to plead facts that lend themselves to an inference of scienter that is cogent and at least as compelling as any opposing inference as any opposing inference one could draw from the facts alleged. Accordingly, the Plaintiffs have not alleged that Shiloh had the requisite scienter to be liable for securities fraud. Finally, the Judge finds that leave to amend in the case would be futile. The Plaintiffs have already had one opportunity to amend, and were made aware of the deficiency in the FACAC, namely, the failure to plead corporate scienter. This same deficiency persists in the SACAC. Because they have thus far been unable to cure this defect, and offer no indication as to how they might do so in the future, the Plaintiffs' request for leave to amend is denied. For the foregoing reasons, Judge Wood granted the Defendant's motion to dismiss the SACAC in its entirety. He dismissed with prejudice and withoout leave to amend the Plaintiffs' SACAC. The Clerk of Court is directed to close the case. A full-text copy of the Court's Sept. 19, 2018 Opinion and Order is available at https://is.gd/WxxrWn from Leagle.com. Raymond Thomas, Individually and on behalf of all others similarly situated, Lead Plaintiff, represented by Phillip C. Kim -- pkim@rosenlegal.com -- The Rosen Law Firm P.A., Robert Vincent Prongay -- RProngay@glancylaw.com -- Glancy Prongay & Murray LLP, pro hac vice, Charles H. Linehan -- clinehan@glancylaw.com -- Glancy Prongay & Murray LLP, Sara Esther Fuks -- sfuks@rosenlegal.com -- The Rosen Law Firm, P.A. & Lesley Frank Portnoy -- lportnoy@glancylaw.com -- Glancy Prongay & Murray LLP. William Porter, Individually and on behalf of all others similarly situated, Plaintiff, represented by Charles H. Linehan, Glancy Prongay & Murray LLP & Robert Vincent Prongay, Glancy Prongay & Murray LLP, pro hac vice. Shiloh Industries, Inc., Ramzi Hermiz & Thomas M. Dugan, Defendants, represented by Geoffrey J. Ritts -- gjritts@jonesday.com -- Jones Day, pro hac vice & Robert C. Micheletto -- rmicheletto@jonesday.com -- Jones Day. SNSA INC: Daniels Suit Seeks Overtime Pay Under FLSA, AMWA ---------------------------------------------------------- SHEQUITA DANIELS, Individually and On Behalf of Others Similarly Situated v. SNSA, INC., FARHANA ALI, KNM HOLDINGS, LLC, KHALID KHAN, and NASRULLAH MANJI, Case 4:18-cv-00771-SWW, (E.D. Ark., Oct. 16, 2018) seeks declaratory judgment, monetary damages, liquidated damages, prejudgment interest, civil penalties and costs, including reasonable attorneys' fees as a result of Defendant's failure to pay Plaintiff and all others similarly situated overtime compensation for all hours worked in excess of 40 per workweek. The complaint says the Defendant classified Plaintiff and those similarly situated as hourly employees non-exempt from the overtime requirements of the Fair Labor Standards Act and the Arkansas Minimum Wage Act. However, the Defendant does not pay the Plaintiff and other hourly employees overtime wages at a rate of one and one-half times their regular rates of pay for hours worked over forty per week, but rather pays overtime wages in a lesser amount. The Plaintiff was an hourly-paid employee at Defendant's restaurant in North Little Rock, Arkansas. SNSA, Inc., is a Missouri, for-profit corporation, operating Church's Chicken franchised restaurants in the State of Arkansas. SNSA, Inc.'s registered agent for service of process is Farhana Ali. KMN Holdings, LLC, is a Texas limited liability company, operating Church's Chicken franchised restaurants in the State of Arkansas. KMN Holdings, LLC's registered agent for service of process is Nasrullah Manji. The Plaintiff is represented by: Chris Burks, Esq. Josh Sandford, Esq. SANFORD LAW FIRM, PLLC ONE FINANCIAL CENTER 650 SOUTH SHACKLEFORD, SUITE 411 LITTLE ROCK, AR 72211 Tel: (501) 221-0088 Fax: (888) 787-2040 Email: chris@sanfordlawfirm.com josh@sanfordlawfirm.com STARBUCKS CORP: Marten Sues Over White Choco Drink Deceptive Ad --------------------------------------------------------------- JUAN RAFAEL MARTEN, on behalf of himself and others similarly situated v. STARBUCKS CORPORATION, Case No. 1:18-cv-09201-JGK (S.D.N.Y., October 8, 2018), is a consumer protection action seeking redress for, and a stop to, the Defendant's alleged unfair and deceptive practice of advertising and marketing its Starbucks White Chocolate Doubleshot Energy Drink. The Product is advertised and sold to mislead consumers into believing that the drink contains white chocolate, when it in fact does not, Mr. Marten contends. He points out that the Defendant markets the Product in a way that is deceptive to consumers under consumer protection laws of New York, the other 49 states, and the District of Columbia. Starbucks is a corporation organized under the laws of Washington with its headquarters located in Seattle, Washington. Starbucks develops and markets the Products throughout the United States. The Products are available at numerous retail and online outlets.[BN] The Plaintiff is represented by: C.K. Lee, Esq. Anne Seelig, Esq. LEE LITIGATION GROUP, PLLC 30 East 39th Street, Second Floor New York, NY 10016 Telephone: (212) 465-1188 Facsimile: (212) 465-1181 E-mail: cklee@leelitigation.com SYRACUSE, NY: Settles Class Action Over Water Shut-Off Policy ------------------------------------------------------------- Chris Baker, writing for Syracuse.com, reports that the City of Syracuse has ended its 10-year-old policy of shutting off a tenant's water if a landlord doesn't pay the bill, following a federal lawsuit. The city also agreed to pay $35,000 in legal fees as well as $650 to Jacqueline Winston, a woman whose water was shut off for three days in 2016 after her landlord fell behind on payments. The policy change and payment are part of a settlement agreement in a class action lawsuit filed against the city by Legal Services of Central New York. The Common Council will vote on the settlement. According to the settlement, the city will no longer shut off the water in cases like Winston's. The city will also update its water shut-off notices to include clear instructions for tenants to contact the Syracuse Water Department or Legal Services of Central New York to have water service restored. The city will instead add an unpaid water bill to a property owner's tax bill. If that bill goes unpaid, the city can seize the house and turn it over to the Land Bank. The policy change applies only to tenants in rental properties, not to owner-occupied properties. Kristen Smith, corporation counsel for the city, said the change is the right thing to do. Officials will still work to collect water bills, but won't punish tenants whose landlords are delinquent. "Everyone really struggled with this internally, trying to balance the rights of tenants," she said. "We view water as a human right and our administration is focusing on housing stability. Shutting off water to a tenant creates instability." Ms. Winston's attorney, Joshua Cotter, said the settlement will have an impact on other municipalities as well. "We are delighted to have now resolved this matter in the U.S District Court and applaud the City of Syracuse for its commitment to holding landlords accountable for unpaid water bills," Mr. Cotter said in a statement. Ms. Winston sued the city in federal court in February 2016 after her family went three days without water. She claimed the city violated her Constitutional right to due process. Ms. Winston received a notice from the city in January 2016 telling her of a $473 outstanding water bill. She was told she had 30 days to pay the bill. According to the lawsuit, Ms. Winston informed her maintenance person, who assured her the landlord would take care of it. A month later, the city shut off her water. Her family had to use gallons of bottled water to cook, clean and brush their teeth. She became the lead plaintiff in the federal class action lawsuit from Legal Services of Central New York, an agency that advocates for things like housing justice through civil lawsuits. The lawsuit said the city's policy of shutting off a tenant's water was unjust. Last September, a federal judge ruled against Ms. Winston. She appealed. In April, the appeals court ruled Winston's case could move forward. At that point, the city started negotiating a settlement, Smith said. The settlement amount includes $35,000 in attorneys fees to Legal Services of Central New York. Ms. Winston will received $650, the amount she lost in rent when she had to move out of her apartment. After the appeal ruling in April, the city temporarily stopped shutting off water for tenants whose landlords failed to pay their water bill. That policy change will become permanent once the council approves the settlement. The water shut-off policy dates back to 2008, when the Common Council decided to put pressure on bad landlords who didn't pay water bills. The new, more aggressive shut-off policy increased city revenue by more than $1 million in its first year. But it often left tenants dealing with the consequences, like a dry tap. Tenants then had to navigate a confusing bureaucratic maze to have water service reinstated. Ms. Smith emphasized that despite the policy change, the city will still work to collect water bills. "This doesn't mean we're not collecting water any more," she said. "We have one tool going away but we're going to be more aggressive with other tools. We don't want taxpayers subsidizing the water of a few property owners who don't want to pay their bills." [GN] TESLA INC: Must Face Foreign Workers' Labor Class Action -------------------------------------------------------- Clark Schultz, writing for Seeking Alpha, reports that a federal district judge dismissed most of the seven claims against Tesla (NASDAQ:TSLA) in a class action labor case, but allowed two claims to survive. A RICO charge was one of the claims tossed. Judge Lucy Koh ruled that the company must defend itself over the allegation it knew foreign workers at the Fremont plant were threatened with deportation if they reported labor violation laws. The lawsuit was originally filed in 2016 on behalf of workers with B-1 visas working at U.S. automobile factories. [GN] TICKETFLY: Faces Class Action in Illinois Over Data Breach ---------------------------------------------------------- David Matthews, writing for Law360, reports that a new proposed class action in Illinois state court takes aim at Ticketfly, accusing the concert ticketing service of shoddy cybersecurity and failing to inform users they were hacked. [GN] TINTRI INC: Relief from Stay Bid V. Non-Debtors in Tuller Denied ---------------------------------------------------------------- In the case, LANCE TULLER, Plaintiff, v. TINTRI, INC., ET AL., Defendants, Case No. 17-cv-05714-YGR (N.D. Cal.), Judge Yvonne Gonzalez Rogers of the U.S. District Court for the Northern District of California denied the Plaintiffs' motion for relief from the stay with respect to their claims against the Non-Debtors. The Plaintiffs bring the putative class action against Defendants Debtor Tintri and Ken Klein, Ian Halifax, and Kieran Harty, as well as various underwriters for alleged material misrepresentations related to Tinri's June 30, 2017 initial public offering ("IPO") in violation of federal securities laws. Tuller filed his complaint, individually and on behalf of all others similarly situated, on Sept. 18, 2017 alleging that Tintri and the Individual Defendants engaged in material misrepresentations related to Tinri's June 30, 2017 IPO in violation of federal securities laws. On Oct. 6, 2017, the Court issued an order relating the action to two similar lawsuits, Clayton v. Tintri, Inc., Case No. 17-cv-05683-YGR and Nurlybayev v. Tintri, Inc., Case No. 17-cv-05684-CRB. On Dec. 13, 2017, the Court granted the motion of Henrick Thørring for appointment as the lead Plaintiff and approval of Glancy Prongay & Murray LLP as the lead counsel. On Feb. 2, 2018, lead Plaintiff Thørring filed a consolidated class action complaint against Tintri, the Individual Defendants, and the Underwriter Defendants for alleged material misrepresentations regarding Tintri's June 30, 2017 IPO in violation of federal securities laws. On March 30, 2018, the Defendants' filed two motions to dismiss, one by Tinri and the Individual Defendants and another by the Underwriter Defendants. These motions were set for hearing on Aug. 14, 2018. On July 10, 2018, the Tintri Defendants filed a Notice informing the Court that Tinri had filed a voluntary Chapter 11 petition in the U.S. Bankruptcy Court for the District of Delaware. Subsequently, on July 12, 2018, the Court stayed the instant lawsuit pending resolution of the Bankruptcy Action. Shortly thereafter, on July 30, 2018, lead Plaintiff Henrick Thørring filed a motion for relief from the stay solely with respect to the Plaintiffs' claims against the Non-Debtors. Judge Rogers finds that the complaint does not attribute the basis of the alleged misconduct, material misrepresentations made in the registration statement accompanying Debtor Tintri's IPO, to specific Defendants or groups of Defendants such that one could parse between a determination as to the liability of the Non-Debtors as compared to a determination as to the liability of the Debtor Tintri. There can be no determination as to the liability of the Individual Defendants or the Underwriter Defendants without first resolving whether Debtor Tintri has made a material misrepresentation in violation of the securities laws at issue. Thus, any judgment against the Non-Debtors will in effect be a judgment or finding against Debtor Tintri. Accordingly, the Plaintiffs' allegations present a special circumstance under which the automatic stay under Section 362(a)(1) of the U.S. Bankruptcy Code may apply to the Defendants other than the Debtor. Moreover, the Judge finds that a stay of the instant action as it applies to Non-Debtors is in the interest of efficiency and will avoid relitigation of the issues presented. For the reasons discussed, Judge Rogers denied the Plaintiffs' motion for relief from the stay with respect to their claims against the Non-Debtors. Her Order terminates Docket Number 69. A full-text copy of the Court's Sept. 14, 2018 Order is available at https://is.gd/0rOA9P from Leagle.com. Lance Tuller, Individually and on behalf of all others similarly situated, Plaintiff, represented by Laurence M. Rosen -- lrosen@rosenlegal.com -- The Rosen Law Firm. P.A. Tintri, Inc., Defendant, pro se. Ken Klein, Ian Halifax & Kieran Harty, Defendants, represented by Adam Christopher Trigg -- atrigg@be-law.com -- Bergeson LLP, Daniel J. Bergeson -- dbergeson@be-law.com -- Bergeson, LLP & John D. Pernick -- jpernick@be-law.com -- Bergeson LLP. Morgan Stanley & Co. LLC, Merrill Lynch, Pierce, Fenner & Smith Inc., Pacific Crest Securities, Needham & Co., LLC, Piper Jaffray & Co., Raymond James & Associates, Inc. & William Blair & Co., L.L.C., Defendants, represented by Jonathan Rosenberg -- jrosenberg@omm.com -- O'Melveny & Myers LLP & Matthew W. Close -- mclose@omm.com -- O'Melveny & Myers LLP. Rustam Mustafin, Movant, represented by Robert Vincent Prongay -- RProngay@glancylaw.com -- Glancy Prongay & Murray LLP & Shimon Yiftach -- shimony@bgandg.com -- Bronstein Gewirtz & Grossman. Fattorini and Dail, Movant, represented by Laurence M. Rosen, The Rosen Law Firm. P.A. Henrik Thorring, Movant, represented by Kara M. Wolke -- kwolke@glancylaw.com -- Glancy Prongay & Murray LLP & Robert Vincent Prongay, Glancy Prongay & Murray LLP. U-TEC: 2 More Potential Class Suits Filed Under Illinois BIPA ------------------------------------------------------------- Chris Burt, writing for Biometric Update.com, reports that proposed class-action law suits have been filed under Illinois' Biometric Information Privacy Act (BIPA) against both fingerprint door-lock maker U-Tec and the Chicago Loews hotel. The plaintiff in the U-Tec suite alleges the company never provided the required disclosures about how information would be stored, how long for, or how it would eventually be disposed of. U-Tec provides door locks and an associated smartphone app which can store up to 95 fingerprints, and the plaintiff alleges that the lack of legally required disclosure led him to chose a lock which could allow a criminal to enter his home in the case that U-Tec suffers a data breach, and that he would not have done so if provided with the necessary information. The suit against Loews hotel was filed in federal court and, like most BIPA suits, has been brought by an employee, who alleges that the hotel never informed him that fingerprints collected as part of a time and attendance system would be shared with a third party, or how long it would be kept for. A similar potential class action suit was filed against Loews was filed in state court earlier this year, which has been stayed, pending a decision by the Illinois Supreme Court in Rosenbach v. Six Flags, according to an attorney involved in the case. The State Supreme Court is expected to rule on what qualifies a plaintiff as "aggrieved" under BIPA. Around the same time as the earlier suit against Loews hotel was announced, U.S. District Judge Virginia Kendall said that notice and consent violations, without disclosure of the information, do not constitute injury under BIPA, though the court's decision to throw out the suit was based on the pre-emptive authority of the collected bargaining agreement in the labor dispute. A BIPA suit was filed against burger chain Wendy's earlier this month.[GN] UBER TECHNOLOGIES: Schnader Harrison Discusses Arbitration Ruling ----------------------------------------------------------------- Scott J. Wenner, Esq. -- swenner@schnader.com -- of Schnader Harrison Segal & Lewis LLP, in an article for Mondaq, reports that a panel of the Court of Appeals for the Ninth Circuit unanimously decided that a properly-drafted arbitration clause that waives class actions and reserves to the arbitrator the determination of whether a dispute is properly arbitrable, will defeat class action certification and require the granting of an order compelling arbitration, even in California, which is historically hostile to class waivers and mandatory arbitration. The case was closely-watched both because of the size of the class and to understand the impact in California of the U.S. Supreme Court decision last term in Epic Systems. O'Connor v. Uber Technologies disposed of consolidated appeals in multiple actions brought by Uber drivers on behalf of crisscrossing putative classes. In that opinion the appellate panel reversed orders of Judge Edward Chen of the Northern District of California, who had denied Uber's motion to compel arbitration, certified a class of 160,000 drivers and restricted Uber's use of arbitration agreements for new drivers. Despite its facially striking disposition of the issues presented, the panel broke no new ground in enforcing Uber's arbitration agreement, relying principally on its own 2016 decision in Mohamed v. Uber Technologies, 848 F.3d 1201, and on the U.S. Supreme Court's recent opinion in Epic Systems, which the panel awaited before it published its decision. The class that Judge Chen certified included drivers who had entered into agreements with Uber to arbitrate their claims, and who had waived their right to participate in a class action with respect to those claims. The appellate panel observed that Judge Chen's conclusion that the drivers satisfied Federal Rule 23's class certification requirements was premised on his finding that Uber's arbitration agreements were unconscionable and, therefore, unenforceable. However, that conclusion ignored the holding in Mohamed v. Uber -- binding precedent authored two years ago by the same panel. That panel held that the enforceability of Uber's arbitration agreements in question was not properly for the court to answer, because the agreements specifically, and properly, reserved the question of arbitrability for the arbitrator to determine. The Ninth Circuit earlier had held in Momot v. Mastro, 652 F.3d 982 (2011) that language "delegating to the arbitrators the authority to determine the validity or application of any of the provisions of the arbitration clause[]constitutes an agreement to arbitrate threshold issues concerning the arbitration agreement." In addition to arguing that the arbitration clause was unconscionable, the drivers also contended that the class waiver provision contravened Section 7 of the National Labor Relations Act -- an argument that the Supreme Court's Epic Systems decision resolved against them. The question raised by the result in O'Connor is "what now?" The Massachusetts lawyer who represented the largest class and argued the case on behalf of the various classes reportedly says she already is prepared to present "thousands" of individual claims to arbitrators and is urging drivers to contact her for representation. Whether this will prove true and how Uber will respond are left for the next chapter in this saga. The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. [GN] UNDER ARMOUR: Court Grants Bids to Dismiss Securities Suit ---------------------------------------------------------- In the case, In re UNDER ARMOUR SECURITIES LITIGATION, Civil Action No.: RDB-17-0388 (D. Md.), Judge Richard D. Bennett of the U.S. District Court for the District of Maryland (i) granted the Under Armour Defendants' Motion to Dismiss Plaintiffs' Consolidated Amended Complaint, and (ii) granted the Underwriter Defendants' Notice of Motion to Dismiss the Consolidated Amended Complaint. Plaintiffs Aberdeen City Council as Administrating Authority for the North East Scotland Pension Fund ("Exchange Act Plaintiff" or "Lead Plaintiff") and Bucks County Employees Retirement Fund ("Securities Act Plaintiff") bring the putative class action against Under Armour, Kevin A. Plank ("Plank"), Lawrence P. (Chip) Molloy, Brad Dickerson, the named directors, and the named underwriters ("Underwriter Defendants") alleging violations of federal securities laws. The Plaintiffs bring the federal class action under the Securities Exchange Act of 1934, and Rule 10b-5 promulgated thereunder, against Under Armour, Plank, Molloy, and Dickerson ("Exchange Act Defendants"). Separately, the Securities Act Plaintiff brings the federal class action under the Securities Act of 1933, and the rules promulgated thereunder, against Under Armour, Plank, Molloy, the Director Defendants, and the Underwriter Defendants ("Securities Act Defendants"). Currently pending before the Court are two dismissal motions: (1) the Under Armour Defendants' Motion to Dismiss Plaintiffs' Consolidated Amended Complaint; and (2) the Underwriter Defendants' Notice of Motion to Dismiss the Consolidated Amended Complaint. Under Armour, based in Maryland, is a large sports apparel company that sells branded athletic apparel, footwear, and accessories primarily in North America, although their products are available worldwide. Since its formation in 1996, Under Armour's market share has grown to compete with the leaders in the sector, Nike and Adidas. By 2014, Under Armour surpassed Adidas and became the number two sportswear brand by revenue in the United States. By capitalizing on its premium brand image and reputation for state-of-the-art fabrics, Under Armour reported 26 consecutive quarters of 20% or more compounded annual growth between 2010 and 2016. Led by its founder, Plank, who also serves as CEO and Chairman of the Board, Under Armour had an aggressive growth strategy, declaring its intent to become the "No. 1" brand. During the Company's Investor Day on Sept. 16, 2015, Plank boasted that the demand for their brand has never been stronger, and Under Armour's net revenue was projected to grow 25% in 2016. However, the Plaintiffs allege that by the fall of 2015, customer demand for Under Armour's apparel products was declining, partly due to the Company's failure to compete early in the athletic leisure apparel trend. Excess inventory in Under Armour's basic sports apparel, which had historically provided the majority of sales, led the Company to begin competing on price rather than brand strength as it had done in the past. At the same time, the trend away from consumer sports-apparel purchases at traditional sporting goods stores towards online shopping and large discount chains led to bankruptcies for some of Under Armour's traditional sporting goods customers, which put further pressure on sales and margins. Under Armour expanded its footwear and international sales, but with lower margins and high promotional expenses, overall margins declined. On Jan. 10, 2016, Morgan Stanley issued a detailed report with point-of-sale data from Under Armour's retail customers illustrating declines in the Company's growth, average sales price ("ASP"), and market share. The next month, February 2016, Under Armour's Chief Financial Officer ("CFO") Dickerson left the Company. However, the Company's first quarter 2016 financial results, announced in an April 21, 2016 press release, were positive. In May 2016, the Company's Chief Merchandising Officer, Henry Stafford, and the Chief Digital Officer, Robin Thurston, abruptly departed. As Under Armour's sales problems became publicly known, stock prices declined. On June 1, 2016, the Company announced a reduced expectation of 2016 revenues related to the bankruptcy of one of its major sporting goods customers, the Sports Authority,5 which triggered further stock price declines. On June 6, 2016, Under Armour filed the Registration Statement with the Securities Exchange Commission ("SEC") in connection with its Bond offering. It offered the Bonds pursuant to the Offering materials, which incorporated Under Armour's 2015 Annual Report on Form 10-K and first quarter 2016 Quarterly Report on Form 10-Q. The Offering was completed on June 8, 2016 with the Company receiving $593.6 million in total net proceeds. Each of the Underwriter Defendants allegedly acted as an underwriter of the Offering. On July 26, 2016, Under Armour reported growth below 20% for the first time in more than seven years and forecast the slowest quarterly growth in over six years. On Oct.r 25, 2016, Under Armour revealed a further slowdown in growth in the third quarter. On Jan. 31, 2017, Under Armour revealed that the 2016 slowdown was more severe than previously reported and also announced the sudden departure of Molloy, who served as CFO after Dickerson. The next day, on Feb. 1, 2017, S&P Global Ratings downgraded the Company's Bonds to junk status, and Moody's Investors Service changed Under Armour's rating outlook from stable to negative. The Bond price fell in response and slid further in August 2017 when the Company revealed slow North American growth, reduced its 2017 guidance, and announced a massive restructuring. The initial Complaints alleging violations of federal securities law were filed in February and March 2017 and were consolidated on March 23, 2017. A Consolidated Amended Complaint was filed on Aug. 9, 2017. The Plaintiffs claim four causes of action: (i) Count I - For Violation of Section 11 of the Securities Act Against All of the Securities Act Defendants; (ii) Count II - For Violation of Section 15 of the Securities Act Against Plank, Molloy, and the Director Defendants; (iii) Count III - Violations of Section 10(b) of the Exchange Act and Rule 10b-5 promulgated thereunder Against All of the Exchange Act Defendants;a nd (iv) Count IV - For Violations of Section 20(a) of the Exchange Act Against the Individual Defendants. The Exchange Act Plaintiffs purport to represent a class of all persons or entities that purchased or acquired publicly traded securities of Under Armour between Sept. 16, 2015 to Jan. 30, 2017, inclusive, and who were damaged thereby. The Securities Act Plaintiff purports to represent all persons or entities that purchased or acquired 3.250% senior unsecured notes of Under Armour due June 15, 2026 pursuant or traceable to the Registration Statement filed with the SEC on June 6, 2016. The Plaintiffs allege that the Defendants concealed their sales and revenue problems during the Class Period, making false claims of explosive growth and strong customer demand while downplaying the ballooning inventory, liquidations, and gross margin compression. They also allege that Plank personally cashed in on the artificial inflation by selling shares of his Company stock for total proceeds of $138.2 million during the Class Period. Further, the Plaintiffs allege that the Defendants raised nearly $600 million from the sale of then-investment grade Bonds by making various untrue and misleading statements in the materials provided to the SEC on June 6-9, 2016. By the instant motion, the Under Armour Defendants seek dismissal with prejudice of all claims pursuant to Rules 9(b) and 12(b)(6) of the Federal Rules of Procedure, and the Private Securities Litigation Reform Act ("PSLRA"). The Underwriter Defendants join in the motion, and separately move the Court to dismiss the claims against them under Section 11 of the Securities Act for the additional reason that the claims are barred by the Securities Act one-year statute of limitations. Judge Bennett granted the Defendants' motions. He granted the Under Armour Defendants' Motion to Dismiss Plaintiffs' Consolidated Amended Complaint, and Counts III and IV of the Corrected Consolidated Amended Complaint are dismissed without prejudice. He also granted the Underwriter Defendants' Notice of Motion to Dismiss the Consolidated Amended Complaint, and dismissed without prejudice Counts I and II of Corrected Consolidated Amended Complaint as to all the Defendants. Among other things, the Judge finds that (i) the Section 11 claims against all the Securities Defendants are time-barred; (ii) the Securities Act Plaintiff has failed to sufficiently allege a Section 11 violation as to all the Defendants in Count I; (iii) because violations of Section 15 depend on an underlying violation of the Securities Act, and the Securities Act Plaintiff fails to state a claim for an underlying violation of the Securities Act, Count Two is also subject to dismissal; (iv) the Plaintiffs fail to plead sufficient facts to establish a cogent and compelling inference that Under Armour or any of the Individual Defendants acted knowingly or recklessly with intent to deceive, manipulate, or defraud; and (v) the Plaintiffs have failed to adequately plead a viable underlying 10(b) or Rule 10b-5 violation. A full-text copy of the Court's Sept. 19, 2018 Memorandum Opinion is available at https://is.gd/yjKcSt from Leagle.com. Brian Breece, Individually and on Behalf of All Others Similarly Situated, Plaintiff, represented by Charles J. Piven -- piven@browerpiven.com -- Brower Piven, A Professional Corporation, Yelena Trepetin -- trepetin@browerpiven.com -- Brower Piven A Professional Corporation, Austin P. Brane -- ABrane@rgrdlaw.com -- Robbins Geller Rudman and Dowd LLP, pro hac vice, Christopher R. Kinnon -- ckinnon@rgrdlaw.com -- Robbins Geller Rudman and Dowd LLP, pro hac vice, Elizabeth A. Shonson -- eshonson@rgrdlaw.com -- Robbins Geller Rudman and Dowd LLP, pro hac vice, Mark J. Dearman -- mdearman@rgrdlaw.com -- Robbins Geller Rudman and Dowd LLP, pro hac vice, Robert R. Henssler, Jr. -- bhenssler@rgrdlaw.com -- Robbins Geller Rudman and Dowd LLP, pro hac vice, Stephen R. Astley -- SAstley@rgrdlaw.com -- Robbins Geller Rudman and Dowd LLP, pro hac vice & William Nelson Sinclair -- bsinclair@mdattorney.com -- Silverman Thompson Slutkin and White LLC. Jodie Hopkins, Individually and on behalf of all others similarly situated, Plaintiff, represented by Adam Heider Farra, Cohen Milstein Sellers & Toll PLLC, Daniel Stephen Sommers, Cohen Milstein Sellers and Toll PLLC, Steven J. Toll, Cohen Milstein Sellers and Toll PLLC, Austin P. Brane, Robbins Geller Rudman and Dowd LLP, pro hac vice, Christopher R. Kinnon, Robbins Geller Rudman and Dowd LLP, pro hac vice, Elizabeth A. Shonson, Robbins Geller Rudman and Dowd LLP, pro hac vice, Mark J. Dearman, Robbins Geller Rudman and Dowd LLP, pro hac vice, Robert R. Henssler, Jr., Robbins Geller Rudman and Dowd LLP, pro hac vice, Stephen R. Astley, Robbins Geller Rudman and Dowd LLP, pro hac vice & William Nelson Sinclair, Silverman Thompson Slutkin and White LLC. Ben Stenger, Individually and on Behalf of All Others Similarly Situated, Plaintiff, represented by Nicholas Ian Porritt -- nporritt@zlk.com -- Levi & Korsinsky LLP, Austin P. Brane, Robbins Geller Rudman and Dowd LLP, pro hac vice, Christopher R. Kinnon, Robbins Geller Rudman and Dowd LLP, pro hac vice, Elizabeth A. Shonson, Robbins Geller Rudman and Dowd LLP, pro hac vice, Mark J. Dearman, Robbins Geller Rudman and Dowd LLP, pro hac vice, Robert R. Henssler, Jr., Robbins Geller Rudman and Dowd LLP, pro hac vice, Stephen R. Astley Robbins Geller Rudman and Dowd LLP, pro hac vice & William Nelson Sinclair, Silverman Thompson Slutkin and White LLC. Aberdeen City Council as Administrating Authority for the North East Scotland Pension Fund, Plaintiff, represented by Andrew C. White, Silverman Thompson Slutkin and White LLC, Austin P. Brane, Robbins Geller Rudman and Dowd LLP, pro hac vice, Christopher R. Kinnon, Robbins Geller Rudman and Dowd LLP, pro hac vice, Elizabeth A. Shonson, Robbins Geller Rudman and Dowd LLP, pro hac vice, Jack Reise, Robbins Geller Rudman and Dowd LLP, pro hac vice, Mark J. Dearman, Robbins Geller Rudman and Dowd LLP, pro hac vice, Pierce Christopher Murphy, Silverman Thompson Slutkin & White LLC, Robert R. Henssler, Jr., Robbins Geller Rudman and Dowd LLP, pro hac vice, Stephen R. Astley, Robbins Geller Rudman and Dowd LLP, pro hac vice & William Nelson Sinclair, Silverman Thompson Slutkin and White LLC. Bucks County Employees Retirement Fund, Plaintiff, represented by Christopher R. Kinnon, Robbins Geller Rudman and Dowd LLP, pro hac vice, Elizabeth A. Shonson, Robbins Geller Rudman and Dowd LLP, pro hac vice, Stephen R. Astley, Robbins Geller Rudman and Dowd LLP, pro hac vice & William Nelson Sinclair, Silverman Thompson Slutkin and White LLC. Under Armour, Inc., Defendant, represented by G. Stewart Webb, Jr. -- gswebb@Venable.com -- Venable LLP, James D. Wareham -- james.wareham@friedfrank.com -- Fried Frank Harris Shriver & Jacobson LLP, Samuel P. Groner -- samuel.groner@friedfrank.com -- Fried Frank Harris Shriver and Jacobson LLP, pro hac vice & Michael P. Sternheim -- michael.sternheim@friedfrank.com -- Fried Frank Harris Shriver and Jacobson LLP, pro hac vice. Kevin A. Plank, Defendant, represented by Scott R. Haiber -- scott.haiber@hoganlovells.com -- Hogan Lovells US LLP & Jon Myer Talotta -- jon.talotta@hoganlovells.com -- Hogan Lovells US LLP, pro hac vice. Lawrence P. Molloy & Brad Dickerson, Defendants, represented by Adam Abelson, Zuckerman Spaeder LLP, Eric Robert Delinsky, Zuckerman Spaeder LLP & Steven Mark Salky, Zuckerman Spaeder LLP. Byron K. Adams, Jr., George W. Bodenheimer, Douglas E. Coltharp, Anthony W. Deering, Karen W. Katz, A.B. Krongard, William R. McDermott, Eric T. Olson & Harvey L. Sanders, Defendants, represented by G. Stewart Webb, Jr., Venable LLP. J.P. Morgan Securities LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Wells Fargo Securities, LLC, HSBC Securities (USA) Inc., PNC Capital Markets, LLC, BB&T Capital Markets, SunTrust Robinson Humphrey, Inc., Citigroup Global Markets Inc., Goldman Sachs & Co. LLC, Regions Securities LLC & SMBC Nikko Securities America, Inc., Defendants, represented by Amanda F. Davidoff , Sullivan & Cromwell LLP. Bernardo Medellin, Robert Ross & William Dent, Movants, represented by Yelena Trepetin, Brower Piven A Professional Corporation. Sacramento City Employees Retirement System, Movant, represented by Thomas Joseph Minton, Goldman and Minton PC. UNION PACIFIC: Settlement in Hollis Labor Suit Has Final Approval ----------------------------------------------------------------- In the case, Rick Hollis, Plaintiff, v. Union Pacific Railroad Co., et al., Defendants, Case No. EDCV 17-02449 JGB (SHKx) (C.D. Cal.), Judge Jesus G. Bernal of the U.S. District Court for the Central District of California, Eastern Division, granted the Plaintiff's Motion for Final Approval of Class Action Settlement. The Judge awarded (i) the Class Counsel attorneys' fees in the amount of $361,321; (ii) the Class Counsel costs in the amount of $6,592.05; and (iii) Plaintiff Hollis $7,500. He ordered the payment of (i) $37,500 to the California Labor and Workforce Development Agency, and (ii) $25,000 to the claims administrator. The Judge dismissed the Complaint with prejudice. A full-text copy of the Court's Sept. 19, 2018 Judgment is available at https://is.gd/1uzk79 from Leagle.com. Rick Hollis, individually and on behalf of all others similarly situated, Plaintiff, represented by Craig J. Ackermann, Ackermann and Tilajef PC, David S. Winston, Winston Law Group PC, Jonathan Melmed -- jmelmed@kslaw.com -- Melmed Law Group PC & Sam Vahedi, Ackermann and Tilajef PC. Union Pacific Railroad Company, a Delaware Corporation, Defendant, represented by Koree Blyleven -- kblyleven@jonesday.com -- Jones Day, Amanda C. Sommerfeld -- asommerfeld@jonesday.com -- Jones Day & Donald J. Munro -- dmunro@jonesday.com -- Jones Day, pro hac vice. UNITED HEALTHCARE: Court Enters Judgment in Teva Antitrust Suit --------------------------------------------------------------- Judge Mitchell S. Goldberg of the U.S. District Court for the Eastern District of Pennsylvania has entered judgment in favor of the Plaintiffs, the Cephalon Parties, and against the Defendant on the entirety of the case, TEVA PHARMACEUTICAL INDUSTRIES, LTD., et al., Plaintiffs, v. UNITEDHEALTHCARE SERVICES, INC., Defendant, Civil Action No.16-4870 (E.D. Pa.). The question before the Court is whether a Memorandum of Understanding ("MOU") pertaining to a $125 million antitrust resolution constitutes a binding settlement agreement. United claims that it did not give the outside counsel authority to settle, therefore, it is not bound to any settlement agreement. The Cephalon Parties respond that the MOU is enforceable against United on several bases. First, they contend that United gave its outside counsel authority to settle, both by (a) expressly granting such authority and (b) cloaking outside counsel with apparent authority. Second, they posit that United ratified outside counsel's signatures on the MOU. The dispute arises from several antitrust claims, brought pursuant to FTC v. Actavis, Inc., involving reverse settlement payments between the brand name manufacturer of the drug Provigil® and various generic drug manufacturers. On June 1, 2015, the Judge denied class certification for the end-payor Plaintiffs in the case of Vista Healthplan v. Cephalon, Inc. et al. Thereafter, the putative class Plaintiffs and a separate group of third-party payers -- of which United was a part -- reached a settlement agreement, memorialized in an MOU, with brand manufacturer Cephalon, Inc. and two generic manufacturers Teva Pharmaceutical Industries/Teva Pharmaceuticals USA, Inc. and Barr Pharmaceuticals, Inc. ("Cephalon Parties"). United has renounced the settlement, claiming that the terms set out in the MOU did not constitute a binding and enforceable contract and that its lawyers were not authorized to enter into such an agreement. The Cephalon Parties have sued to enforce the agreement. The Cephalon Parties respond that the MOU is enforceable against United on several bases. First, they contend that United gave its outside counsel authority to settle, both by (a) expressly granting such authority and (b) cloaking outside counsel with apparent authority. Second, they posit that United ratified outside counsel's signatures on the MOU. In an opinion issued April 20, 2018, the Judge determined that the MOU contained the essential terms of a settlement and constituted a binding, enforceable, and unambiguous contract. Thereafter, from April 23-27, 2018, a bench trial was held on the issues of (a) whether United's attorneys were cloaked with either express or apparent authority to sign the MOU, and (b) whether UHS's actions subsequent to the signing of the MOU constituted a ratification of the MOU. Upon consideration of the evidence presented at trial and additional videotaped depositions and documentary evidence entered into the trial record, Judge Goldberg concludes that the settlement is binding upon United. The Judge holds that United knew or should have known that outside counsel was acting on its behalf, that the Cephalon Parties reasonably believed that outside counsel were being permitted by United to act on its behalf, and that United made affirmative gestures to confirm outside counsel's apparent authority to settle the case. While United may now claim that it never intended that outside counsel settle its claims, it remains bound because, under the apparent authority doctrine, where one of two innocent parties must suffer from the wrongful act of another, the loss should fall upon the one who, by his conduct, created the circumstances which enabled the third party to perpetrate the wrong and cause the loss. As he findd that United was wholly responsible for the circumstances that cloaked outside counsel with apparent authority to settle, United must bear the consequences of its counsel's actions The Judge also holds that United ratified the MOU by failing to repudiate counsel's authority to settle in a timely fashion. He concludes that United ratified the contract by delaying any dispute of outside counsel's authority until after it decided to pursue affirmative litigation. The MOU was a brief, six-page, double-spaced document containing unambiguous language expressly indicating in plain language that the settlement was binding and enforceable. Once United's in-house lawyers had the MOU in hand, United had full knowledge of the material facts and circumstances regarding the transaction to be ratified. United's failure to promptly repudiate the settlement after receiving clear recitation of its terms constitutes a ratification of the MOU and renders it binding. Having fully considered the trial testimony, exhibits, deposition transcripts, and attorney argument, Judge Goldberg concludes that United is bound to the MOU signed on its behalf. Aside from the fact that United clearly cloaked its outside counsel with apparent authority to reach a settlement agreement, it also ratified the MOU by failing to repudiate it despite having all of the relevant facts in its possession. Therefore, he entered judgment in favor of the Plaintiffs the Cephalon Parties and against Defendant United on the entirety of the Complaint. An appropriate Order follows. A full-text copy of the Court's Sept. 18, 2018 Memorandum is available at https://is.gd/2yDb1k from Leagle.com. TEVA PHARMACEUTICAL INDUSTRIES LTD., Plaintiff, represented by BRADLEY H. WEIDENHAMMER -- radley.weidenhammer@kirkland -- KIRKLAND & ELLIS LLP, BRITT CRAMER -- britt.cramer@kirkland.com -- KIRKLAND & ELLIS LLP, JAY P. LEFKOWITZ , KIRKLAND & ELLIS, JOSEPH E. WOLFSON -- jwo@stevenslee.com -- STEVENS & LEE, ADAM T. HUMANN -- adam.humann@kirkland.com -- KIRKLAND & ELLIS LLP & BRENDAN E. RYAN -- brendan.ryan@kirkland.com -- KIRKLAND & ELLIS LLP. TEVA PHARMACEUTICALS USA, INC. & BARR PHARMACEUTICALS, INC., Plaintiffs, represented by BRADLEY H. WEIDENHAMMER, KIRKLAND & ELLIS LLP, BRITT CRAMER, KIRKLAND & ELLIS LLP, JOSEPH E. WOLFSON, STEVENS & LEE, ADAM T. HUMANN, KIRKLAND & ELLIS LLP & BRENDAN E. RYAN, KIRKLAND & ELLIS LLP. CEPHALON, INC., Plaintiff, represented by BRADLEY H. WEIDENHAMMER, KIRKLAND & ELLIS LLP, BRITT CRAMER, KIRKLAND & ELLIS LLP, JOSEPH E. WOLFSON, STEVENS & LEE, ADAM T. HUMANN, KIRKLAND & ELLIS LLP & BRENDAN E. RYAN, KIRKLAND & ELLIS LLP. PENNSYLVANIA TURNPIKE COMMISSION, ON BEHALF OF ITSELF AND ALL OTHERS SIMILARLY SITUATED, PENNSYLVANIA EMPLOYEES BENEFIT TRUST FUND, ON BEHALF OF ITSELF AND ALL OTHERS SIMILARLY SITUATED & DISTRICT COUNCIL 37 HEALTH & SECURITY PLAN, Intervenor Plaintiffs, represented by DIANA J. ZINSER -- dzinser@srkattorneys.com -- SPECTOR ROSEMAN & KODROFF, P.C., JEFFREY L. KODROFF -- jkodroff@srkattorneys.com -- SPECTOR ROSEMAN & KODROFF PC, JOHN A. MACORETTA -- jmacoretta@srkattorneys.com -- SPECTOR ROSEMAN & KODROFF, P.C., JOSEPH H. MELTZER -- jmeltzer@ktmc.com -- Kessler Topaz Meltzer & Check, LLP & TERENCE S. ZIEGLER , Kessler Topaz Meltzer & Check, LLP. SHIRLEY PANEBIANO, Intervenor Plaintiff, represented by KEVIN B. LOVE , HANZMAN CRIDEN & LOVE, P.A., DIANA J. ZINSER , SPECTOR ROSEMAN & KODROFF, P.C., JEFFREY L. KODROFF , SPECTOR ROSEMAN & KODROFF PC, JOHN A. MACORETTA , SPECTOR ROSEMAN & KODROFF, P.C., JOSEPH H. MELTZER , Kessler Topaz Meltzer & Check, LLP & TERENCE S. ZIEGLER -- tziegler@ktmc.com -- Kessler Topaz Meltzer & Check, LLP. UNITEDHEALTHCARE SERVICES, INC., Defendant, represented by ABBY L. DENNIS, BOIES SCHILLER & FLEXNER LLP, ERIC W. BUETZOW -- ebuetzow@zelle.com -- ZELLE LLP, HAMISH P.M. HUME -- hhume@bsfllp.com -- BOIES SCHILLER & FLEXNER LLP, JONATHAN M. WATKINS, ZELLE LLP, JUDITH A. ZAHID -- jzahid@zelle.com -- ZELLE LLP, KYLE SMITH -- ksmith@bsfllp.com -- BOIES SCHILLER & FLEXNER LLP, MARTHA L. GOODMAN, BOIES SCHILLER FLEXNER LLP & JONATHAN R. MACBRIDE -- jmacbride@zelle.com -- ZELLE LLP. VISTA HEALTHPLAN, INC., ON BEHALF OF ITLSELF AND ALL OTHERS SIMILARLY SITUATED & JEFFREY R. KRINSK, AN INDIVIDUAL, Movants, represented by JEFFREY L. KODROFF, SPECTOR ROSEMAN & KODROFF PC & JOHN A. MACORETTA, SPECTOR ROSEMAN & KODROFF, P.C. USA DIVING: Faces Class Action Over Diving Coach Sexual Abuse ------------------------------------------------------------- Rich Nye, writing for WTHR, reports that two women have filed a class action lawsuit against Indianapolis-based USA Diving, as well as a local diving program and coaches. The lawsuit accuses former Olympic diving coach John Wingfield of enabling sexual abuse at RipFest, his Indiana Diving Academy with a dryland facility and dormitory for athletes in Arcadia. The lawsuit charges that USA Diving knew there was a problem, but failed to adopt any policies, rules or procedures that would protect its athletes from sexual abuse. The lawsuit was filed by two women in U.S. District Court in Indianapolis against USA Diving, RipFest Diving in Hamilton County and owner John Wingfield, and Johel Ramirez Suarez. Mr. Ramirez Suarez is the RipFest coach who was arrested last November on 32 counts of child sexual abuse against other teenage girls in the program. Mr. Ramirez Suarez pled guilty last month to three counts of battery. The lawsuit claims Mr. Wingfield, RipFest president and 2008 U.S. Olympic diving coach, received numerous complaints about Ramirez Suarez sexually abusing divers. But Wingfield allegedly dismissed the allegations. RipFest issued a statement through spokesman Roger Harvey: "Johel Ramirez's conduct is completely unacceptable, and RipFest Diving has zero tolerance for this type of behavior. Last year, when we became aware of allegations against Ramirez, we immediately removed him from our program, instructed him not to return to our facility pending the outcome of the investigation and terminated him. RipFest Diving remains committed to providing the highest quality training for our diving students in an extremely professional and safe environment." But the lawsuit claims the environment at RipFest actually enabled sexual abuse. One plaintiff who worked for RipFest says she was sleeping in the dorm in the fall of 2016 when she awoke to Mr. Ramirez Suarez sexually assaulting her. She fought Ramirez off of her. The other plaintiff, Amy Stevens, was 16 years old in 2015 when she says Mr. Ramirez Suarez recruited her to move from Michigan to join the RipFest program. Within a couple of months, she says he was routinely sexually assaulting her during stretching exercises at the pool. Ms. Stevens testified before a U.S. Senate subcommittee on Oct. 3. The lawsuit also alleges that Ramirez Suarez was having sex with another underage diver, which was widely known in the program. The lawsuit also claims yet another coach sent nude photos of himself to underage RipFest divers. The lawsuit charges that USA Diving obstructed or covered up complaints of sexual abuse and deferred or diverted investigations. Earlier this year, other divers filed a similar lawsuit against USA Diving and the Ohio State Diving Club as the result of alleged sexual abuse by coach Will Bohonyi, a former Indiana Diving Club coach. [GN] USA TECHNOLOGIES: Kaplan Fox Files Securities Class Action ---------------------------------------------------------- Kaplan Fox & Kilsheimer LLP disclosed that it has filed a class action suit in the United States District Court for the District of New Jersey against USA Technologies, Inc. ("USA Technologies" or the "Company") (Nasdaq: USAT), its CEO and Chairman, Stephen P. Herbert, and its CFO, Priyanka Singh. The complaint alleges that defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act") and Rule 10b-5 promulgated thereunder by the SEC, and is brought by plaintiff on behalf of all persons who purchased the publicly traded common stock of USA Technologies between November 9, 2017 and September 10, 2018, inclusive (the "Class Period"). The complaint further alleges that, throughout the Class Period, defendants "represented that the Company maintained adequate controls over financial reporting, and that there were no changes in internal controls over financial reporting that occurred that materially affected, or are reasonably likely to materially affect, the Company's internal controls over financial reporting." The complaint further alleges that on September 11, 2018, "before the market opened, USA Technologies shocked investors when it disclosed that it would delay the filing of its annual report for the fiscal year 2018 (ended June 30, 2018)" and that the Company's "Audit Committee of the Company's Board of Directors, with the assistance of independent legal and forensic accounting advisors, is in the process of conducting an internal investigation of current and prior period matters relating to certain of the Company's contractual arrangements, including the accounting treatment, financial reporting and internal controls related to such arrangements. The Audit Committee is working closely with its advisors to complete its investigation in as timely a manner as possible. The Company will not be in a position to file its Form 10-K until the Audit Committee completes its investigation and the Company and its independent auditor assess the results of that investigation." On September 11, 2018, USA Technologies shares declined from a closing price on September 10, 2018 of $15.30 per share, to close at $9.20 per share, a decline of approximately 40% on heavier than usual volume. If you are a member of the proposed Class, you may move the court no later than NOVEMBER 13, 2018 to serve as a lead plaintiff for the proposed Class. You need not seek to become a lead plaintiff in order to share in any possible recovery. Plaintiff seeks to recover damages on behalf of the proposed Class and is represented by Kaplan Fox & Kilsheimer LLP (www.kaplanfox.com). Our firm, with offices in New York, San Francisco, Los Angeles, Chicago, and New Jersey, has decades of experience in prosecuting investor class actions and actions involving violations of the Federal securities laws. If you have any questions about this Notice, the action, your rights, or your interests, please e-mail attorneys Jeff Campisi (jcampisi@kaplanfox.com), or Larry King (lking@kaplanfox.com), or contact them by phone, regular mail, or fax: Jeffrey P. Campisi KAPLAN FOX & KILSHEIMER LLP 850 Third Avenue, 14th Floor New York, NY 10022 Toll-Free Telephone: (800) 290-1952 Telephone: (212) 687-1980 Fax: (212) 687-7714 E-mail address: jcampisi@kaplanfox.com Laurence D. King KAPLAN FOX & KILSHEIMER LLP 350 Sansome Street, Suite 400 San Francisco, CA 94104 Telephone: (415) 772-4700 Fax: (415) 772-4707 E-mail address: lking@kaplanfox.com [GN] USA TECHNOLOGIES: Nov. 13 Lead Plaintiff Bid Deadline ----------------------------------------------------- ClaimsFiler, a FREE shareholder information service, reminds investors that they have until November 13, 2018 to file lead plaintiff applications in a securities class action lawsuit against USA Technologies, Inc. (NasdaqGM: USAT), if they purchased the Company's securities between November 9, 2017 and September 11, 2018, inclusive (the "Class Period"). This action is pending in the United States District Court for the District of New Jersey. Get Help USA Technologies investors should visit us at https://www.claimsfiler.com/cases/view-usa-technologies-inc-securities-litigation-1 or call toll-free (844) 367-9658. Lawyers at Kahn Swick & Foti, LLC are available to discuss your legal options. About the Lawsuit USA Technologies and certain of its executives are charged with failing to disclose material information during the Class Period, violating federal securities laws. September 11, 2018, pre-market, the Company disclosed that it would be unable to timely file its Form 10-K annual report for the fiscal year ended June 30, 2018 because it was "conducting an internal investigation of current and prior period matters relating to certain of the Company’s contractual arrangements, including the accounting treatment, financial reporting and internal controls related to such arrangements." On this news, the price of USA Technologies’ shares plummeted. About ClaimsFiler ClaimsFiler has a single mission: to serve as the information source to help retail investors recover their share of billions of dollars from securities class action settlements. At ClaimsFiler.com, investors can: (1) register for free to gain access to information and settlement websites for various securities class action cases so they can timely submit their own claims; (2) upload their portfolio transactional data to be notified about relevant securities cases in which they may have a financial interest; and (3) submit inquiries to the Kahn Swick & Foti, LLC law firm for free case evaluations. [GN] WAFFLE HOUSE: Court Sustains Bid to Dismiss Amended Diamond Suit ---------------------------------------------------------------- In the case, PAUL DIAMOND, et al., Plaintiffs, v. WAFFLE HOUSE, INC., et al., Defendants, Civil Action No. 18-49-HRW (E.D. Ky.), Judge Henry R. Wilhoit, Jr. of the U.S. District Court for the Eastern District of Kentucky, Northern Division, Ashland, sustained Defendant WH Capital, L.L.C.'s Motion for Partial Dismissall; and Defendants Waffle House, Inc., Riverside Restaurant Group, LLC, and WH Capital, L.L.C.'s Motion for Partial Dismissal of the Amended Complaint. The class action is premised upon certain individuals' exposure to Hepatitis A "(HAV") while dining at the Waffle House restaurants #1808 and 1657, located in Ashland and Catlettsburg, Kentucky, respectively. The Plaintiffs allege that an employee of Waffle House was infected with HAV and worked at both locations between Feb. 12 and 28, 2018, thereby exposing all individuals who dined there to Hepatitis A. The Plaintiffs' filed a class action Complaint on March 20, 2018, in Boyd Circuit Court asserting negligence/negligence per se and strict liability against Waffle House, Inc., Riverside Restaurant Group, LLC and WH Capital, L.L.C. ("Defendants"). The Defendants filed their Notice of Removal on April 16, 2018. Upon motion of the Defendants, the Court entered an order extending their time for filing a responsive pleading up to and including May 16, 2018, and extending the Plaintiffs' time to file a Motion to Remand up to and including June 15, 2018. Following the filing of the Defendants' dispositive motion but prior to any jurisdictional motion, the Plaintiffs sought leave to file an Amended Complaint, which the Court granted. Their Amended Complaint asserts the aforementioned tort claims and adds a claim for breach of implied warranty for merchantability pursuant to KRS 355.2-314. The Plaintiffs name five subclasses in their Amended Complaint: (1) those that were exposed to the Defendants' Hepatitis A positive employee; (2) those who consumed food or drink that was manufactured, served and/or sold by the Defendants' restaurants between Feb. 12, 2018, and Feb. 28, 2018; (3) those who obtained an Hepatitis A vaccination, an IG shot, or Hepatitis A blood test because of their exposure; (4) individuals in (1), (2) and/or (3) above that suffered physical symptoms or sickness; and/or (5) individuals in (1), (2), and/or (3) above that contracted HAV a result of their exposure. The Defendants seek dismissal of the tort claims of Subclasses 1, 2, 3 and 4, the breach of implied warranty of merchantability claims of Subclass 1, 4 and 5 as well as the breach of implied warranty of merchantability claims of all the Subclasses against Defendants Waffle House, Inc. and WH Capital, L.L.C. ("WH Capital"). By separate motion, WH Capital also seeks dismissal of all claims alleged against it. Judge Wilhoit concludes that the Plaintiffs have failed to sufficiently allege (i) claims of Subclasses 1-4 premised on Strict Liability and Negligence/Negligence Per Se; (ii) claims of Subclass 1 premised on Breach of the Implied Warranty of Merchantability; (iii) claims of Subclasses 4 and 5, who are members of Subclass 1 premised on Breach of the Implied Warranty of Merchantability; (iv) claims of Subclasses 1-5 against Defendants, WH Capital L.L.C., and Waffle House, Inc., premised on Breach of the Implied Warranty of Merchantability; and (v) all claims against Defendant WH Capital, L.L.C. Accordingly, he sustained the Motions. His Order is an interlocutory and non-appealable order. A full-text copy of the Court's Sept. 14, 2018 Memorandum Opinion and Order is available at https://is.gd/l47SsG from Leagle.com. Paul Diamond, Anne Diamond, Paul Diamond, a legally disabled adult, individually and on behalf of all those similarly situated & Rebekah Diamond, Plaintiffs, represented by Lee L. Coleman , Hughes & Coleman, Mariana Torres Goff -- mgoff@hughesandcoleman.com -- Hughes & Coleman & Richard Wade Hartsock -- hartsock@boamlaw.com -- Hughes & Coleman. Waffle House, Inc., Riverside Restaurant Group, LLC & WH Capital, LLC, Defendants, represented by D.C. Offutt, Jr. -- dcoffutt@ofnlaw.com -- Offutt Nord Ashworth, PLLC & Ira Matthew Mains -- immains@onalegal.com -- Offutt Nord Ashworth, PLLC. YIN WALL CITY: Settlement in Baumann Farms Suit Has Prelim Approval ------------------------------------------------------------------- In the case, BAUMANN FARMS, LLP a Wisconsin limited liability partnership; GLENN HEIER; and AARON KAISER, Plaintiffs, v. YIN WALL CITY, INC., an Illinois corporation; SUT I. FONG; CHEONG SAT O; YIN WALL CITY, DALLAS, INC., a Texas Corporation, Defendants, YIN WALL CITY, INC. (Illinois), YIN WALL CITY, INC. (Texas), and YIN WALL CITY DALLAS, INC., Counterclaim and Third-Party Plaintiffs, v. BAUMANN FARMS, LLP; GLENN HEIER; and AARON KAISER, Counterclaim Defendants, and GINSENG BOARD OF WISCONSIN, INC.; THOMAS HACK, JOE HEIL and KURT BAUMANN, Third-Party Defendants, Case No. 16-CV-605 (E.D. Wis.), Magistrate Judge William E. Duffin of the U.S. District Court for the Eastern District of Wisconsin granted the Parties' Joint Motion for Preliminary Approval of Class Action Settlement. Upon review of the Declarations submitted by the counsel for the parties, the Magistrate Judge is satisfied that the terms of the Stipulated Settlement Agreement and Release ("SAR") entered into between the parties are fair and reasonable. The SAR provides a minimum payment of approximately $350 to each member of the Settlement Class, which he finds to be adequate and reasonable given the claims presented and the evidence produced during discovery. To the extent individuals opt out of the settlement, such additional funds will be divided among the remaining members of the Settlement Class. None of the $160,000 in settlement funds will revert to the Defendants. Consistent with the Court's prior class certification, the Magistrate certified the Settlement Class defined as all individuals and entities engaged in the business of cultivating ginseng in the State of Wisconsin who have registered as ginseng growers with Wisconsin's DATCP as mandated by Wis. Stats. Section 94.50(2), during the calendar years 2010 through 2015. Because of the limited and known size of the Settlement Class, and the Class Counsel's prior experience of mailing the initial Notice of Class Action to the Certified Class members, the settlement will be administered by the Class Counsel, Attorney Michael T. Hopkins. A Notice of Proposed Settlement will be provided to the Settlement Class by Oct. 15, 2018. The Notice of Proposed Settlement will include reference to a "Ginseng Class Action Settlement Webpage" (URL: www.ip-lit.us/ginseng-ywc), which will contain downloadable .pdf copies of the Order; the SAR; the Parties' Joint Motion for Approval of Settlement; Class Counsel's Motion for an Award of Attorney's Fees and Costs; the Class Representatives' Motion for a Participation Award; and any other document or matter required by the Court. Said webpage will be operational as of the date the Notice of Proposed Settlement is mailed. The Class Counsel's Motion for an Award of Attorney's Fees and Costs, and the Class Representatives' Motion for a Participation Award will be filed (and posted on Ginseng Class Action Settlement Webpage) by Oct. 15, 2018. Any Settlement Class member wishing not to participate in the proposed settlement may opt-out of the settlement no later than Nov. 14, 2018. Additionally, any Settlement Class member may object to the terms of the Settlement; and/or may object to the proposed attorney fee or class representative participation awards no later than Nov. 14, 2018. The Final Fairness Hearing will be conducted on Jan. 23, 2018, at 9:30 am. A full-text copy of the Court's Sept. 14, 2018 Decision and Order is available at https://is.gd/gdhcBq from Leagle.com. Baumann Farms LLP, Glenn Heier & Aaron Kaiser, Plaintiffs, represented by Michael T. Hopkins -- mth@ip-lit.us -- IP-Litigation US LLC. Yin Wall City Inc, an Illinois Corporation, Sut I Fong, Choeng Sat O, Yin Wall City Inc, a Texas Corporation & Yin Wall City Dallas Inc, Defendants, represented by Peter J. Phillips -- pjphillips@lmiplaw.com -- Lucas & Mercanti LLP, Eric V.C. Jansson, Jansson Munger McKinley & Kirby LTD, Molly H. McKinley, Jansson Munger McKinley & Kirby LTD & Peter N. Jansson, Jansson Munger McKinley & Kirby LTD. Yin Wall City Inc, a Texas Corporation, Yin Wall City Dallas Inc & Yin Wall City Inc, an Illinois Corporation, Third Party Plaintiffs, represented by Peter J. Phillips, Lucas & Mercanti LLP, Eric V.C. Jansson, Jansson Munger McKinley & Kirby LTD, Molly H. McKinley, Jansson Munger McKinley & Kirby LTD & Peter N. Jansson, Jansson Munger McKinley & Kirby LTD. Thomas Hack, Joe Heil, Ginseng Board of Wisconsin Inc. & Kurt Baumann, Third Party Defendants, represented by Michael T. Hopkins, IP-Litigation US LLC. Yin Wall City Inc, a Texas Corporation, Yin Wall City Dallas Inc & Yin Wall City Inc, an Illinois Corporation, Counter Claimants, represented by Peter J. Phillips , Lucas & Mercanti LLP, Eric V.C. Jansson, Jansson Munger McKinley & Kirby LTD, Molly H. McKinley, Jansson Munger McKinley & Kirby LTD & Peter N. Jansson, Jansson Munger McKinley & Kirby LTD. Baumann Farms LLP, Glenn Heier & Aaron Kaiser, Counter Defendants, represented by Michael T. Hopkins, IP-Litigation US LLC. ZILLOW GROUP: Judge Tosses Securities Fraud Class Action -------------------------------------------------------- Jessica Guerin, writing for Housing Wire, reports that a federal judge dismissed a securities fraud class action suit against Zillow Group Inc. on Oct. 2. The suit alleged that the real estate giant defrauded investors by not disclosing that the Consumer Financial Protection Bureau was investigating its co-marking program for possible violations of the Real Estate Settlement Procedures Act. U.S. District Judge John C. Coughenour tossed out the suit, stating that the investor plaintiffs, in their attempt to prove that Zillow knowingly violated RESPA, actually proved otherwise. "The Court concludes that the allegations in the amended complaint, taken collectively, support a contrary and more compelling inference -- that Defendants believed the co-marketing program did not violate RESPA," Judge Coughenour wrote. Judge Coughenour said the plaintiffs can file again if they can prove that Zillow designed the program to intentionally violate the Real Estate Settlement Procedures Act; that it instructed third parties to commit RESPA violations; that it made false or misleading statements about the program being in compliance with RESPA; and that its false statements led to the alleged loss in stock value. The decision comes after it was revealed in June that the CFPB had closed its three-year investigation into Zillow's co-marketing program. Under the program, lenders paid Zillow to show their ads alongside a real estate agent, making it appear as though the lenders or agents were endorsing one another. At issue was whether Zillow's program violated regulations against kickbacks by enabling lenders and agents to funnel business to each other. A spokesperson for Zillow said the company was pleased that the court dismissed the meritless suit. "We are pleased that the court agreed with our motion to dismiss the claims of this lawsuit, which we believe to be without merit," the spokesperson said. "Our mission has always been to arm consumers with information that helps them make decisions when finding their next home, which this program does by providing consumers with an easy, transparent way to connect with agents and lenders." [GN] ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2018. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000. *** End of Transmission ***