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/raid1/www/Hosts/bankrupt/CAR_Public/181101.mbx C L A S S A C T I O N R E P O R T E R Thursday, November 1, 2018, Vol. 20, No. 219 Headlines A TO Z COATINGS: Kobesky Suit Alleges FLSA Violation AETNA: Pays Civil Penalty to Settle Envelope Breach Claims ALLERGAN PLC: Appeals Court Overturns Class Action Certification ALLIED INTERSTATE: Ct. Stays Further Proceedings in "Voeks" Suit ALLIED POWER: Actions in "Blackburn" Stayed to Allow Negotiations AMERICAN FAMILY: Wins Bid for Summary Judgment in Anderson Suit AMERICAN TRAFFIC: Class Certification Sought in Pincus Suit ANTHEM CO: Settlement in Curtis Labor Suit Has Final Approval ANTHEM: Settles Data Breach Class Action for $16MM APPLE INC: iTunes Subscribers File Bait-and-Switch Class Action AT&T CORP: Faces Suit Over Failure to Remit 911 Charges AUSTRALIA: Sued Over Separation of Asylum Seeker Families BARCLAYS PLC: "Dark Pool" Case Continues at New York Court BELMONT CONFECTIONS: Does Not Pay Overtime Wages, Says Still BIG BLOCK: Made Unsolicited Calls, Sousa Suit Says BNY MELLON: Appeals Ruling in Henderson to First Circuit BROTHERS MOTHERS: Gets OK to Send Class Notice in Buckler Suit BURGER KING: Faces Class Action Over "No Poaching" Rule CALIFORNIA CHECK CASHING: Gonzales Hits Illegal Account Debiting CAMBIUM LEARNING: Law Firm Investigates Fiduciary Breach Claims CAPITAL FITNESS: Sent Unauthorized Text Msgs, Says Abuisneineh CELGENE: AMF Named Lead Plaintiff in Consolidated Securities Suits CENTURYLINK: 401(k) Plan Investors Seek Class Certification CHARTER COMMUNICATIONS: Maceda Suit Alleges TCPA Violation COBALT INTERNATIONAL: Settles Class Action for $147MM CONSUMER SAFETY: Johnson Sues Over Interlock Device Charges CONWAY URBAN: Dey Sues Over Unpaid Overtime Wages CULVER, CA: Faces Class Action Over Excessive Fines Clause D & S RESIDENTIAL: Lockhart Files Labor Class Action DA-VINCI HOTEL: Breeze Suit Asserts Civil Rights Breach DELAWARE: Saunder's Request for Counsel in Inmates Suit Denied DENKA PERFORMANCE: Butler Moves to Certify Class of Residents DIRECT FLOW: Reynolds' Bid to Certify Class Nixed Due to Accord DISH NETWORK: Challenges Uninjured Class Members' Certification EMERGENCY CONSULTANTS: Keller Seeks Certification of FLSA Class ENGEL & VOLKERS: Dominguez Files ADA Suit in New York ERBA DIAGNOSTICS: Jan. 23 Settlement Fairness Hearing Set EVANGELINE PARISH, LA: Faces Class Suit Over Investigative Holds EXCELSIOR TRANSPORTATION: McHenry Files Suit Over FLSA Breach FACEBOOK INC: Colorado Residents Join Security Breach Class Suit FANDUEL INC: Obtains Favorable Ruling in Fantasy Sports Case FINISAR CORP: OK Firefighters Fund Move to Certify Securities Class FIRE SPRINKLER: Faces Class Action Over Viking 457 Product FIRST RESPONSE: Does Not Pay Minimum Wage, Cubias Suit Alleges FUNKO: Scott & Scott Fails to Class Action Lead Counsel Role FUYAO GLASS: Discovery Process Limited to 120 Opt-in Plaintiffs GAP INC: Bid to Remand Coladonato Suit Over Bogus Discounts Nixed GOOGLE INC: UK Court Ruling to Impact Large-Scale Class Actions GRAIN PROCESSING: Court Documents Show Settlement Fund Details HASBRO INC: Shareholders File Securities Class Action HEALTHSOURCE GLOBAL: Does Not Properly Pay Workers, Price Suit Says HMS HOST: Flores Suit Seeks to Recover Unpaid Overtime IMPERVA INC: RM Law Firm Investigates Fiduciary Breach Claims IMPINJ INC: Baton Rouge Employees' Fund Files Securities Class Suit JACOB TRANSPORTATION: Greene Suit Settlement Has Final Approval JRC VENTURES: Smith Seeks to Certify Companionship Workers Class JUST BORN: Escobar's Bid to Certify Class Taken Under Submission KERYX BIOPHARMA: Investors Sue Over $1.3BB Akebia Merger KMG CHEMICALS: Faruqi & Faruqi Files Securities Class Action KRAFT HEINZ: Faces Class Action Over Capri Sun Drinks KRISHNA SCHAUMBURG: Biometric Privacy Lawsuit Reinstated KURZ REAL ESTATE: Murias Suit Asserts Invasion of Privacy LONDON TERRACE: Blech and Chassman Orderded to Pay $12K in Dugan MARYSVILLE, CA: Faces Class Action Over Property Destruction MASSACHUSETTS INSTITUTE: Judge Certifies Class of Employees MASSACHUSETTS: Gets Favorable Ruling in Homeless Class Action MCKESSON CORP: Evanston Police Fund Files Securities Class Action MIDLAND CREDIT: Eleventh Circuit Appeal Filed in Trichell Suit MISSOURI: Ordered to Give Juvenile Lifers Parole Chance NAVIGATORS GROUP: Faces Class Action Over Disclosure Violations NESTLE USA: Must Face Child Slave Labor Class Action, Court Rules NORTHLAND GROUP: Fleming Suit Alleges FDCPA Violation NORTHROP GRUMMAN: Court to Rule on Carlson's Bid to Certify Soon NORTHSHORE UNIVERSITY: Fights Antitrust Class Action PAULS VALLEY: Employees Mull Class Action Over Job Loss PFIZER INC: Settles Deceptive Co-Pay Coupon Class Action POLARITYTE INC: Shareholders File Securities Class Action POWERCOR: Seeks Dismissal of St. Patrick's Day Fire Class Action PREMIER MORTGAGE: Fabricant Files Suit for Invasion of Privacy PUFFY LLC: Diamond Suit Alleges TCPA Violation QED INTERNATIONAL: Felder Suit Alleges FLSA Violation QUALCOMM: Challenges Cellphone Buyers' Class Action SA GEAR: Voluntary Dismissal of Williamson Suit Denied SAMSUNG ELECTRONICS: Schilling Sues Over Defective Phone SENSA PRODUCTS: Judge Denies Certification Without Prejudice SERVICOM LLC: Did Not Provide Proper Termination Notice, Says Suit SHAW COMMUNICATIONS: Sued Over "Unlawful Pricing Scheme" SIMM ASSOCIATES: Must Face Class Action Over Excessive Fees SMALL PLANET: Evans Sues Over Deceptive Product Labels SOUTHWEST AIRLINES: 9th Cir. Hears Argument in Class Action STATE STREET: Labaton Chastised Over $75MM Fee Request STITCH FIX: Dec. 10 Lead Plaintiff Motion Deadline Set SUSHI 21: Bid to Preclude Witnesses at Trial in Chen Suit Denied T.L. CANNON: Hicks Labor Suit Transferred to N.D.N.Y. TD AMERITRADE: Krukever Seeks to Certify Class of Accountholders TICKETMASTER: Ballard Spahr Attorneys Discuss Double Dipping Suit TREVENA INC: Kaskela Law Files Shareholder Class Action UBER TECHNOLOGIES: Faces Class Action in Canada UNITED STATES: 200+ Children from Immigrant Families in Custody UNITED STATES: Young Immigrants Win Right to Seek Special Status VITAL PHARMA: Faces Class Action Over Energy Drink Claims VIZIO: Settles Class Action Over Embedded TV Software WELLS FARGO: Nakamura Moves for Prelim. Nod of Class Settlement YAHOO! INC: Settles Data Breach Class Action for $50MM [*] Companies Have Edge When Choosing Arbitrators, Report Says [*] Skadden Arps Provides Mid-Year Class Action Update ********* A TO Z COATINGS: Kobesky Suit Alleges FLSA Violation ---------------------------------------------------- Scott Kobesky, on behalf of himself and similarly situated v. A to Z Coatings Inc., Case No. 3:18-cv-01705 (M.D. Pa., August 28, 2018), is brought against the Defendant for violations of the Fair Labor Standards Act and the Pennsylvania Minimum Wage Act. The Plaintiff alleges that the Defendant failed to pay Plaintiff and other hourly employees any overtime premium compensation for hours worked over 40 per week. The Plaintiff currently resides in Scranton, PA. The Plaintiff worked for the Defendant as an hourly employee. The Defendant is a contractor in the business of, inter alia, applying insulations and sealants to buildings and structures in Pennsylvania, New York, [BN] The Plaintiff is represented by: Peter Winebrake, Esq. R. Andrew Santillo, Esq. Mark J. Gottesfeld, Esq. WINEBRAKE & SANTILLO, LLC 715 Twining Road, Suite 211 Dresher, PA 19025 Tel: (215) 884-2491 E-mail: pwinebrake@winebrakelaw.com - and - Brian Petula, Esq. CROSSOVER LAW, PLLC 1143 Northern Boulevard, No. 121 Clarks Summit, PA 18411 Tel: (570) 561-1080 E-mail: brian@crossoverlaw.com AETNA: Pays Civil Penalty to Settle Envelope Breach Claims ---------------------------------------------------------- Susan Morse, writing for Healthcare Finance, reports that Aetna has reached an agreement in New Jersey to pay a $365,211.59 civil penalty to settle claims that it allowed the private health information of individuals to be viewed through transparent envelope windows. The insurer will also reportedly pay $100,000 in Connecticut and $175,000 in the District of Columbia for a total of $640,000. Aetna inadvertently disclosed the HIV/AIDS-related information on thousands of beneficiaries, including about 647 New Jersey residents, according to New Jersey Attorney General Gurbir S. Grewal, in an agreement announced October 10. The fine is on top of the $17 million expected to be paid by the insurer in compensation to individuals who filed a class action lawsuit. The settlement with New Jersey resolves two separate privacy breaches. One occurred in 2017 and involved a mailing that potentially revealed information about the recipients' HIV or AIDS status. The second was a mailing that may have revealed the identity of patients with atrial fibrillation who were taking part in a study. Aetna not only violated federal HIPAA law, but also state laws. New Jersey conducted the investigation and negotiated the resolution with Connecticut, Washington and the District of Columbia. WHY THIS MATTERS Aetna promotes the safeguarding of private health information on its website through "extensive operational and technical protections," the AG's office said. It slipped up on HIPAA law through a relatively simple mistake. Aetna failed to ensure that the envelopes used by a claims administrator it hired for sending out notices on the ability for HIV/AIDS members to fill prescriptions in person or by mail were secure. The third party, in turn, said Aetna knew the envelopes it was using for the mailing had a transparent window. Lawsuits were traded. Whatever the resolution, the HIPAA violation is costing Aetna time, money and the trust of affected beneficiaries. THE TREND In April, CVS Health suffered a similar security breach by allowing letters containing information about HIV benefits to be sent in envelopes that had a clear window. In unrelated news, CVS Health and Aetna received conditional approval to move forward with their $69 billion merger. Under the terms of the New Jersey settlement, Aetna will put in place policy, protocol and training reforms designed to safeguard individuals' protected health information, and ensure the confidentiality of mailings containing that information. The company also will hire an independent consultant to evaluate and report on its privacy protection practices, and to monitor its compliance with the settlement's injunctive terms. ON THE RECORD "Companies entrusted with individuals' protected health information have a duty to avoid improper disclosures," said Attorney General Gurbir Grewal. "Aetna fell short here, potentially subjecting thousands of individuals to the stigma and discrimination that, unfortunately, still may accompany disclosure of their HIV/AIDS status. I am pleased that our investigation has led Aetna to adopt measures to prevent this from happening again." [GN] ALLERGAN PLC: Appeals Court Overturns Class Action Certification ---------------------------------------------------------------- Nate Raymond, writing for Reuters, reports that a federal appeals court has overturned the certification of a class of purchasers of Asacol, an ulcerative colitis drug, who accused drug manufacturer Warner Chilcott, now owned by Allergan PLC, of suppressing generic competition for the medication. The 1st U.S. Circuit Court of Appeals in Boston on Oct. 15 ruled the class could not be certified because many of the health plans who would have been treated as class members may not have been injured by the company's conduct. [GN] ALLIED INTERSTATE: Ct. Stays Further Proceedings in "Voeks" Suit ---------------------------------------------------------------- The Hon. William E. Duffin grants the Plaintiff's motion to stay further proceedings in the lawsuit captioned JULIE VOEKS, JOSEPH FOTE, TROY NORTON, and MARLENE KANEHL, Individually and on Behalf of All Others Similarly Situated v. ALLIED INTERSTATE, LLC, Case No. 2:18-cv-01567-WED (E.D. Wisc.). On October 4, 2018, the Plaintiff filed a class action complaint. At the same time, she filed what the Court commonly refers to as a "protective" motion for class certification. In this motion, the Plaintiff moved to certify the class described in the complaint but also moved the court to stay further proceedings on that motion. In Damasco v. Clearwire Corp., 662 F.3d 891, 896 (7th Cir. 2011), the court suggested that class-action plaintiffs "move to certify the class at the same time that they file their complaint," Judge Duffin notes. "The pendency of that motion protects a putative class from attempts to buy off the named plaintiffs." However, Judge Duffin adds, because parties are generally unprepared to proceed with a motion for class certification at the beginning of a case, the Damasco court suggested that the parties "ask the district court to delay its ruling to provide time for additional discovery or investigation." Accordingly, Judge Duffin grants the Plaintiff's motion to stay further proceedings. The parties are relieved from the automatic briefing schedule set forth in Civil Local Rule 7(b) and (c). Moreover, Judge Duffin states, for administrative purposes it is necessary that the Clerk terminate the Plaintiff's motion for class certification. However, Judge Duffin opines, this motion will be regarded as pending to serve its protective purpose under Damasco.[CC] ALLIED POWER: Actions in "Blackburn" Stayed to Allow Negotiations ----------------------------------------------------------------- The Clerk of the U.S. District Court for the Northern District of Illinois made a docket entry on October 15, 2018, in the case titled Jeffrey Blackburn Jr., et al. v. Allied Power Resources, LLC, et al., Case No. 1:18-cv-00347 (N.D. Ill.), relating to a hearing held before the Honorable Jorge L. Alonso. The minute entry states that: -- Parties' joint motion to stay all proceedings to facilitate settlement negotiations is granted to January 15, 2019; -- Accordingly, Plaintiff's motion for Stage−One Conditional Certification and Notice to Putative Class Members is denied without prejudice with leave to reinstate at a later time if settlement is not reached; -- Motion hearing date of October 16, 2018 is stricken; and -- Status hearing previously set for October 23, 2018, is stricken and reset to January 23, 2019, at 9:30 a.m.[CC] AMERICAN FAMILY: Wins Bid for Summary Judgment in Anderson Suit --------------------------------------------------------------- The Hon. Marc T. Treadwell granted the Defendant's motion for summary judgment in the lawsuit styled GARTH ANDERSON v. AMERICAN FAMILY INSURANCE COMPANY, Case No. 5:15-cv-00475-MTT (M.D. Ga.). AFIC moved for summary judgment on the claims of Plaintiff Garth Anderson. The motion is granted, and Mr. Anderson's claims are dismissed with prejudice. Accordingly, his motion to certify class and the parties' Daubert motions are moot, according to the Order. The lawsuit is one of several putative class action cases filed in the Court by insureds, all represented by the same lawyers, who claim that their insurers have failed to pay for the diminished value their homes suffered as the result of a loss that is otherwise covered by their insurance policies. In this context, the Court noted, diminished value has a very specific meaning: the loss in value of a property notwithstanding full repairs due to an intangible stigma owing to the circumstances of the loss. Judge Treadwell opines that Mr. Anderson has not presented any evidence that would allow a reasonable jury to find that AFIC is liable to him for failure to pay for diminished value due to stigma.[CC] AMERICAN TRAFFIC: Class Certification Sought in Pincus Suit ----------------------------------------------------------- The Plaintiff in the lawsuit entitled STEVEN J. PINCUS, an individual, on behalf of himself and all others similarly situated v. AMERICAN TRAFFIC SOLUTIONS, INC., a Kansas corporation, Case No. 9:18-cv-80864-DMM (S.D. Fla.), seeks certification of a class defined as: All persons who paid the $158 civil penalty along with an additional fee to American Traffic Solutions, Inc. in connection with a Notice of Violation for an alleged photo-enforced red light violation in Florida during the four-year period prior to the filing of the complaint in this action through the date of certification. Mr. Pincus also asks the Court to appoint him as class representative and his counsel as class counsel. American Traffic Solutions, Inc. ("ATS") is a government contractor in the business of operating so-called "road safety cameras" for governments throughout North America. In 2008, ATS began contracting with local governments in Florida to operate their so-called "photo-enforced" red light programs. One of ATS's responsibilities in this role is to accept civil penalty payments from alleged violators of photo-enforced red lights, and then forward those payments to the appropriate government body. Mr. Pincus alleges that for years, ATS has systematically abused this position to unlawfully impose and collect a surcharge on civil penalty payments made by Floridians photographed running red lights. He asserts that ATS collects these surcharges for its own profit, even though it is separately paid for its services under its contracts with local governments.[CC] The Plaintiff is represented by: Bret L. Lusskin, Esq. 20803 Biscayne Blvd., Suite 302 Aventura, FL 33180 Telephone: (954) 454-5841 Facsimile: (954) 454-5844 E-mail: blusskin@lusskinlaw.com ANTHEM CO: Settlement in Curtis Labor Suit Has Final Approval ------------------------------------------------------------- In the case, WONDRA CURTIS AND REBECCA MIDLIK, individually and on behalf of all others similarly situated, Plaintiffs, v. THE ANTHEM COMPANIES, INC. and DOES 1 to 50, inclusive, Defendants, Case No. 8:16-cv-01654-DOC-JCG (C.D. Cal.), Judge David O. Carter of the U.S. District Court for the Central District of California granted the Plaintiffs' Motion for an Order Granting Final Approval of Class Action Settlement, Conditionally Certifying Proposed Settlement Class, Approving Motion for Attorneys' Fees and Costs, and granting Incentive Award. On May 2, 2018, the Court entered an Order Granting Preliminary Approval of Settlement, resulting in certification of the provisional Settlement Class of any individual, currently or formerly employed by Defendant as non-exempt hourly employees at the 3080 Bristol Street, Suite 200, Costa Mesa, California 92626 from Jan. 1, 2014 through Dec. 31, 2017. The Court further approved the form of, and directed the parties to provide, the proposed Class Notice to the Class. No objections had been made, timely or otherwise, pursuant to the Class Notice sent to the Settlement Class members, nor did any objectors appear at the time of the hearing. The matter having come before the Court for hearing pursuant to the Order of the Court dated May 2, 2018, for approval of the settlement set forth in the Stipulation and Settlement Agreement of Class Action Claims, and due and adequate notice having been given to the Putative Class Members as required in said Order, Judge Carter granted the Plaintiffs' Motion for an Order Granting Final Approval of Class Action Settlement, Conditionally Certifying Proposed Settlement Class, Approving Motion for Attorneys' Fees and Costs, and granting Incentive Award. In addition to any recovery that the Plaintiffs may receive under the Settlement, and in recognition of their efforts and risks taken on behalf of the Settlement Class, the Judge approved the payment of an incentive award to them, in the amount of $5,000 each. He approved the payment of (i) the attorneys' fees to the Class Counsel in the sum of $45,000; (ii) the reimbursement of litigation expenses to Class Counsel in the sum of $7,685.41; and (iii) $10,000 to KCC for performance of its settlement claims administration services. Upon completion of administration of the Settlement, the parties will file a declaration setting forth that claims have been paid and that the terms of the settlement have been completed. The Judgment is intended to be a final disposition of the action in its entirety, and is intended to be immediately appealable. A full-text copy of the Court's Sept. 26, 2018 Order is available at https://is.gd/KeOLN2 from Leagle.com. Wondra Curtis, individually, and on behalf of all others similarly situated & Rebecca Midlik, individually, and on behalf of all others similarly situated, Plaintiffs, represented by Todd M. Friedman -- tfriedman@toddflaw.com -- Todd M Friedman Law Offices PC & Adrian Robert Bacon -- abacon@toddflaw.com -- Law Offices of Todd Friedman PC. The Anthem Companies, Inc., Defendant, represented by Steven B. Katz -- skatz@constangy.com -- Constangy Brooks Smith and Prophete LLP & Matthew Aaron Scholl -- mscholl@constangy.com -- Constangy Brooks Smith and Prophete LLP. ANTHEM: Settles Data Breach Class Action for $16MM -------------------------------------------------- Erica Teichert, writing for Modern Healthcare, reports that Anthem has agreed to pay the federal government $16 million in a settlement over its 2015 data breach that hit nearly 79 million people, HHS said on Oct. 15. The agreement is by far the largest settlement reached by HHS' Office for Civil Rights for a Health Insurance Portability and Accountability Act breach. Hackers stole the names, birth dates, Social Security numbers, home addresses and other personal information in the 2015 cyberattack. As part of the settlement, Anthem agreed to a corrective action plan where it will conduct a risk analysis and fix any deficiencies. HHS will oversee Anthem's work. Office for Civil Rights Director Roger Severino acknowledged that healthcare companies are attractive targets for hacks, and they're expected to have adequate cybersecurity defenses. "The largest health data breach in U.S. history fully merits the largest HIPAA settlement in history," Severino said in a statement. "Unfortunately, Anthem failed to implement appropriate measures for detecting hackers who had gained access to their system to harvest passwords and steal people's private information." Anthem did not admit liability for the incident. The insurer on Oct. 15 said it isn't aware of any identity theft stemming from the 2015 attack. "Anthem takes the security of its data and the personal information of consumers very seriously," the company said in a statement. "We have cooperated with (the government) throughout their review and have now reached a mutually acceptable resolution." In 2017, Anthem agreed to shell out $115 million to settle a class-action lawsuit over the breach, the largest data-breach settlement ever at the time. Anthem also offered class-action members two years of credit protection -- in addition to the two years of monitoring they already received -- and put $15 million aside for customers' out-of-pocket costs stemming from the breach. The Associated Press contributed to this report. [GN] APPLE INC: iTunes Subscribers File Bait-and-Switch Class Action --------------------------------------------------------------- Patricia Howard, writing for NoCable, reports that no one likes to feel like they're getting duped with the promise of a great deal, only to find that the product isn't exactly what they paid for. This is what allegedly happened to a group of iTunes subscribers responsible for filing a class action lawsuit against Apple. The focus of the lawsuit is on the way that Apple advertised their season passes to the public. Users claim that the company used promotional clips of complete seasons of their favorite shows to entice them to purchase the season pass. After paying for access, they were only able to watch a portion of what was initially advertised. The formal complaint states: "Consumers purchase the Season Features, reasonably believing that each episode is a standard, plot-based episode and that, by purchasing the Season Features, they are receiving a significant discount over purchasing each episode individually. However, because many of the episodes in the Season Features are promotional clips, consumers are not receiving the number of episodes and the discount they expected." Joseph Coyle of New York, New York, is one of the primary plaintiffs named in the class action suit. Mr. Coyle claims that he purchased the season pass for "Killing Eve" from Apple's iTunes store in May after seeing 11 episodes advertised for that season. He paid $19.99, which seemed like a bargain as the individual episodes sold for $2.99 apiece. Upon completing his purchase, Coyle learned that there were only 5 full episodes of "Killing Eve" included, and the rest were only partial promotional clips. Gabriela Zaragoza of Davis, California, had a similar complaint with her purchase of the season pass for "Genius: Einstein." Both Zaragoza and Coyle claim that, had they known what was really included in their purchases, they would've never completed them. This is the primary basis for restitution. Consumers across the country feel the same way, lending some social weight to the class action lawsuit. The complaint is written to include "all persons in the United States who, within the relevant statute of limitations periods, purchased for personal, family, or household, purposes any of the Season Features on Apple TV 4 or 4k, for TV shows containing fewer episodes than represented at the time of purchase." The law offices of Faruqi & Faruqi LLP will be spearheading the suit; which includes accusations of fraud, breach of warranty, unfair competition practices, and several other violations. Plaintiffs are looking for restitution, but the primary focus has been on motivating Apple to change the language used to advertise their season passes. "Until Apple redesigns its iTunes store, or Apple is enjoined from making further false and misleading representations, Plaintiffs and other consumers will continue to bear this ongoing injury." Apple has yet to respond publicly, but this lawsuit could set a legal precedent for other similar cases involving the advertising used by streaming services. There's little doubt that big names like Netflix, Hulu, Amazon and HBO will defer to the decision in the future. [GN] AT&T CORP: Faces Suit Over Failure to Remit 911 Charges ------------------------------------------------------- County of Dorchester, South Carolina, and Town of Summerville, South Carolina, on behalf of themselves and all similarly situated local governments in South Carolina v. AT&T Corp. and BellSouth Telecommunications, LLC, Case No. 2:18-cv-02890 (D.S.C., October 25, 2018), is brought against the Defendants for violation of the 911 charge statute, and for breach of statutory and fiduciary duties. This is a proposed class action for compensatory and punitive damages, for injunctive relief, and for any other relief deemed appropriate by this Court, arising out of Defendants' failure to properly bill, collect, and remit 911 charges as required by South Carolina law and local ordinances. The Plaintiff County of Dorchester, South Carolina, is a county and political subdivision of the State of South Carolina. It is a "local government" as defined by applicable law. The Plaintiff Town of Summerville, South Carolina, is a town and political subdivision of the State of South Carolina, also residing in Dorchester County. It is a "local government" as defined by applicable law. The Defendant AT&T Corp. is a telecommunications company and "service supplier," as defined by applicable law. AT&T Corp. provides telecommunications services to subscribers in Dorchester County, South Carolina and the Town of Summerville, South Carolina. AT&T Corp. provides telecommunication services in at least forty-one of South Carolina’s forty-six counties, as well as various towns and cities that maintain their own PSAPs. The Defendant BellSouth Telecommunications, LLC is a telecommunications company and "service supplier," as defined by applicable law. BellSouth Telecommunications, LLC provides telecommunications services to subscribers in Dorchester County, South Carolina and the Town of Summerville, South Carolina. BellSouth Telecommunications, LLC provides telecommunication services in at least forty-one of South Carolina’s forty-six counties, as well as various towns and cities that maintain their own PSAPs. [BN] The Plaintiffs are represented by: Marlon E. Kimpson, Esq. Lance V. Oliver, Esq. Max Gruetzmacher, Esq. Annie E. Kouba, Esq. MOTLEY RICE LLC 28 Bridgeside Blvd. Mt. Pleasant, SC 29464 Tel: (843) 216-9000 Fax: (843) 216-9450 E-mail: mkimpson@motleyrice.com loliver@motleyrice.com mgruetzmacher@motleyrice.com akouba@motleyrice.com AUSTRALIA: Sued Over Separation of Asylum Seeker Families --------------------------------------------------------- Lisa Cornish, writing for Devex, reports that more than 60 parents and children seeking asylum have filed a complaint against the Australian government with the United Nations Human Rights Committee, asking for the body to rule on the legality of families separated as part of Australia's policy of offshore detention. The submission is expected to be followed by humanitarian groups globally to determine how it could impact other immigration policies. Family separation has been under the spotlight in the United States, where children have been taken from their parents as part of harsh new immigration policies. While children are not separated from both parents in Australia, it is not uncommon for them to be separated from their fathers, who remain in Manus Island or Nauru awaiting the procedure of refugee claims. The case is being brought to the U.N. on behalf of 14 families -- 63 people in total -- women, men, and children. It is one of the largest ever U.N. actions brought against the Australian government and is likely to take the shine off the government's first year as a member of the U.N. Human Rights Council. Families have been separated because they arrived in Australia on different dates -- some just prior to the commencement of offshore detention, a hardline policy brought into place in 2013 to deter asylum seekers arriving by boat. For others, medical emergencies have seen children on Nauru, along with their mothers, evacuated to Australia while other family members stay behind. The Human Rights Law Centre is spearheading the class action along with barristers Kylie Evans, John Maloney, and Marion Isobel. The barristers argue that the separation was designed to force those women and children in Australia to return to offshore detention, and to a life in limbo. "The Department has repeatedly stated that individuals who have temporarily transferred to Australia, including for medical treatment, are expected to return to Nauru or PNG [Papua New Guinea] when the reason they transferred is complete," a spokesperson for the Department of Home Affairs said in a media statement. "Medical transfer is not a pathway to settlement in Australia." Among those the action is to support, are five babies born in Australia with fathers indefinitely detained on Nauru. Daniel Webb, director of legal advocacy with the Human Rights Law Centre, said the medical evidence of this separation is "harrowing." "Some of these kids are permanently grief-stricken -- in their minds every single day it's like someone they love has died," he said. "Imagine being a child and growing up permanently grief-stricken, hearing your mum crying in bed every night because she doesn't know if you will ever get to meet your dad. It's just brutal." The policy has been in place for five years. Evidence as part of the petition that has been sent to the U.N. Human Rights Committee includes the impact on families and argues that the Australian government is violating the International Covenant on Civil and Political Rights in its actions. The case will ask for the immediate reunion of each family in Australia and will be assessed by 18 independent international law experts from around the world, with Australia required to accept the findings of the committee and act in accordance with the findings -- a requirement under Australia's ratification of the optional protocol to the convention. "Every one of these families has a heartbreaking separation moment -- a moment when they realized our government was permanently tearing them apart," Mr. Webb said. "One of the dads told me he felt like his entire body froze. He said he couldn't move or even breathe and just collapsed to the floor and had to be carried away." The U.N. Human Rights Committee will next decide whether the cause should be registered and seek a response from Australia if it proceeds. The cause then needs to be assessed for admissibility and merit before being considered in a closed session. For the families that have been waiting to be reunited, there is still a long way to go. But one worth the effort. "Right now there are 14 families the Australian government has deliberately and routinely kept apart between Australia and offshore detention on Nauru or Manus," Freya Dinshaw, senior lawyer with the Human Rights Law Centre, told Devex. "Sixty-three mothers, fathers and children permanently separated. These families just want what every family in the world wants — to be together with the people they love the most." Update, October 16, 2018: This article was updated to clarify the complaint against the Australian government was made to the United Nations Human Rights Committee. [GN] BARCLAYS PLC: "Dark Pool" Case Continues at New York Court ---------------------------------------------------------- Maria Nikolova, writing for Finance Feeds, reports that the "dark pool" case against Barclays PLC (LON:BARC), its United States subsidiary Barclays Capital Inc. and William White, former Head of Equities Electronic Trading at Barclays Capital and currently the Managing Director and Head of Product Development and Platforms for Markets, within the Investment Bank at Barclays, continues at the New York Southern District Court. Earlier on Oct. 16, the lead plaintiffs in the action -- Mohit Sahni and Joseph Waggoner, filed a number of documents that aim to give notice to potential class members of the pendency of this action. If one has purchased Barclays plc American Depository Shares (ADSs) during the period of August 2, 2011 through June 25, 2014, both dates inclusive (the Class Period), he/she may be a member of the Class. The notice to potential class members offers a summary of the action. It restates allegations made in the Second Amended Complaint, according to which, during the Class Period, the defendants issued misstatements concerning the operation of Barclays' dark pool, known as Barclays' Liquidity Cross or LX. More particularly, the Complaint alleges that Barclays continuously misled investors by touting LX as a safe trading venue "built on transparency," with "built in safeguards to manage toxicity of aggressive traders" who could victimize other dark pool investors by trading ahead of anticipated purchase and sell orders, thereby rapidly capitalizing on proprietary information regarding trading patterns. The Complaint also says that Barclays touted its Liquidity Profiling tool, which Mr White (who managed the business unit that operated LX) described, as "a sophisticated surveillance framework that protects clients from predatory trading activity in LX." The Complaint further alleges that Barclays failed to disclose that it did not in fact effectively protect LX clients from predatory trading with Liquidity Profiling partly because Barclays applied manual overrides to move "aggressive" clients to more "passive" categories, failed to police LX to prevent/punish toxic trading, intentionally altered marketing materials to omit reference to the largest predatory high frequency trader in LX, preferentially routed dark orders to LX where those orders rested for two seconds seeking a "fill" vulnerable to toxic traders, and did not include the NYSE and EDGX direct feeds to construct the national best bid and best offer ("NBBO") used to update the prices of orders resting in LX. According to the Complaint, investors learned the truth on June 25, 2014, when the New York State Office of the Attorney General commenced a lawsuit against Barclays over misrepresentations regarding the operation of LX. The Complaint alleges that after the announcement of the NYAG's action, Barclays' ADS fell 7.38% on June 26, 2014. The defendants have denied all claims and wrongdoing asserted in the complaint and any liability arising out of the conduct alleged therein. Specifically, among other defenses, Barclays contended that the alleged misstatements in the Complaint were immaterial and that it had no duty to disclose the allegedly omitted information. No trial has yet occurred in this Action, the notice to class members says, and no findings of fault or liability have been made as to any of the parties. There is no assurance that a judgment in favor of the Class will be granted. Those who fit the description of a Class Member, have a choice whether or not to remain members of the Class. Those who wish to remain a Class Member are not required to do anything at this time. Those willing to be excluded will have to state so in writing. Mohit Sahni and Joseph Waggoner on Oct. 16 moved the Court for an order establishing the program and schedule for notice to the Class of this pending class action. Under the proposed program, Class Counsel shall cause to be mailed, by first class mail, the individual Notice of Pendency of Class Action to all class members who can be identified through reasonable effort within 20 calendar days after the date of production of the class member identification records. The case is captioned Strougo v. Barclays PLC et al (1:14-cv-05797). [GN] BELMONT CONFECTIONS: Does Not Pay Overtime Wages, Says Still ------------------------------------------------------------ Alora Still, on behalf of herself and all others similarly situated v. Belmont Confections, Inc., Case No. 4:18-cv-01990 (N.D. Ohio, August 29, 2018), is brought against the Defendant for violation of the Fair Labor Standards Act and the Ohio Minimum Fair Wage Standards Act. The Plaintiff alleges that the Plaintiff and other similarly-situated employees were not paid overtime compensation for all of the hours they worked over forty each workweek. The Plaintiff is a resident of Youngstown, Ohio. The Plaintiff was employed by the Defendant through the temporary agency Peopleready, Inc. The Defendant is an Ohio corporation that is located in Youngstown, Ohio and that specializes in the development and manufacturing of private label nutritional bars. [BN] The Plaintiff is represented by: Hans A. Nilges, Esq. Shannon M. Draher, Esq. NILGES DRAHER LLC 7266 Portage Street, N.W., Suite D Massillon, OH 44646 Tel: (330) 470-4428 Fax: (330) 754-1430 E-mail: hans@ohlaborlaw.com sdraher@ohlaborlaw.com BIG BLOCK: Made Unsolicited Calls, Sousa Suit Says -------------------------------------------------- Karla Y. Sousa, on behalf of herself and all others similarly situated v. Big Block Realty, Inc., Luis Avalos and Cali Bear Homes, Case No. 3:18-cv-02015 (S.D. Calif., August 29, 2018), seeks damages and injunctive relief under the Telephone Consumer Protection Act. The Plaintiff brings this action for damages, and other legal and equitable remedies, resulting from the illegal actions of the Defendants in negligently, knowingly, and willfully contacting Plaintiff and the Class Members on their cellular telephones without their prior express consent within the meaning of the Telephone Consumer Protection Act. The Plaintiff Karla Sousa is an individual citizen of the State of California, who resides in San Diego, California. The Big Block Realty, Inc. is a real estate brokerage firm. It is headquartered in this district, at 2820 Camino Del Rio South, #314, San Diego, California. [BN] The Plaintiff is represented by: Douglas J. Campion, Esq. LAW OFFICES OF DOUGLAS J. CAMPION, APC 17150 Via Del Campo, Suite 100 San Diego, CA 92127 Tel: (619) 299-2091 Fax: (619) 858-0034 E-mail: doug@djcampion.com BNY MELLON: Appeals Ruling in Henderson to First Circuit -------------------------------------------------------- Defendant BNY Mellon, N.A., filed an appeal from a court ruling in the lawsuit styled Henderson, et al. v. BNY Mellon, N.A., Case No. 1:15-cv-10599-PBS, in the U.S. District Court for the District Court of Massachusetts, Boston. As reported in the Class Action Reporter on Oct. 24, 2018, Judge Patti S. Saris (i) granted in part and denied in part the Plaintiffs' motion for class certification; (ii) granted in part and denied in part BNY Mellon's motion for summary judgment; and (iii) denied the Plaintiffs' motion for partial summary judgment. The proposed class action claims that BNY Mellon breached its fiduciary duty to its trust beneficiaries by charging excessive and undisclosed fees for the preparation of the trusts' tax returns. Plaintiffs Ashby Henderson and Thomas Hershenson both seek to represent the proposed class. Henderson is a beneficiary of the Walter H. Wesson Trust, a trust created under Massachusetts law. Hershenson is a beneficiary of T/D of Morris A. Hershenson Trust, for the benefit of Lee M. Hershenson, a trust created under Pennsylvania law.1 Both trusts are irrevocable trusts. The trustee of both trusts is BNY Mellon. BNY Mellon administers thousands of trusts, with tens of thousands of trust beneficiaries. The appellate case is captioned as Henderson, et al. v. BNY Mellon, N.A., Case No. 18-8018, in the United States Court of Appeals for the First Circuit.[BN] Plaintiffs-Respondents ASHBY HENDERSON, individually and on behalf of all others similarly situated, and THOMAS J. HERSHENSON are represented by: Derek G. Howard, Esq. DEREK G. HOWARD LAW FIRM, INC. 42 Miller Ave. Mill Valley, CA 94941 Telephone: (415) 432-7192 E-mail: derek@derekhowardlaw.com - and - Derek G. Howard, Esq. MURRAY & HOWARD, LLP 436 14th Street Oakland, CA 94612-0000 Telephone: (510) 444-2660 E-mail: dhoward@murrayhowardlaw.com - and - Benjamin Lajoie, Esq. John J. Roddy, Esq. Elizabeth A. Ryan, Esq. BAILEY & GLASSER LLP 99 High Street, Suite 304 Boston, MA 02110 Telephone: (617) 439-6730 E-mail: blajoie@baileyglasser.com jroddy@baileyglasser.com eryan@baileyglasser.com - and - Michael Murphy, Esq. Gregory Y. Porter, Esq. BAILEY & GLASSER LLP 1054 31st St., NW, Suite 230 Washington, DC 20007 Telephone: (202) 463-2101 E-mail: mmurphy@baileyglasser.com gporter@baileyglasser.com - and - Regina M. Markey, Esq. J. Brian McTigue, Esq. MCTIGUE & VEIS LLP 4530 Wisconsin Ave. NW Washington, DC 20016 Telephone: (202) 364-6900 E-mail: rmarkey@mctiguelaw.com jmctigue@mctiguelaw.com Defendant-Petitioner BNY MELLON, N.A.; and Interested Parties BANK OF NEW YORK MELLON CORPORATION and BANK OF NEW YORK MELLON TRUST COMPANY, N.A., are represented by: Mary J. Hackett, Esq. Nellie E. Hestin, Esq. Melissa M. Taylor, Esq. K. Issac deVyver, Esq. MCGUIREWOODS LLP 260 Forbes Avenue, Suite 1800, Tower Two-Sixty Pittsburgh, PA 15222 Telephone: (412) 667-7909 E-mail: mhackett@mcguirewoods.com nhestin@mcguirewoods.com mmtaylor@mcguirewoods.com kdevyver@mcguirewoods.com Interested Parties JOHN BERNARD and WILLIAM BERNARD are represented by: Kathryn C. Ellsworth, Esq. David J. Grais, Esq. GRAIS & ELLSWORTH LLP 950 3rd Avenue, 24th Floor New York, NY 10022 Telephone: (212) 755-3590 E-mail: kellsworth@graisellsworth.com dgrais@graisellsworth.com - and - Peter E. Gelhaar, Esq. Alexander R. Zwillinger, Esq. DONNELLY CONROY & GELHAAR LLP 260 Franklin Street, Suite 1600 Boston, MA 02110 Telephone: (617) 720-2880 E-mail: peg@dcglaw.com arz@dcglaw.com BROTHERS MOTHERS: Gets OK to Send Class Notice in Buckler Suit -------------------------------------------------------------- The Hon. Richard B. Farrer granted the Parties' Joint Motion for Approval of Notice to Potential Class Members in the lawsuit titled JUSTIN A. BUCKLER, AND LONDON MORTON, INDIVIDUALLY AND ON BEHALF OF OTHER EMPLOYEES SIMILARLY SITUATED ET AL., v. BROTHERS, MOTHERS, AND OTHERS CORPORATION, D/B/A CYPRESS GRILLE AND PAUL G. THOMPSON, Case No. 5:17-cv-00603-OLG-RBF (W.D. Tex.). The Court approves the proposed Notice and Consent forms, attached to the Parties' Joint Motion. The Defendants shall produce to the Plaintiffs' counsel the following information in electronic format: the names, all known addresses, all known phone numbers, all known e-mail addresses, and dates of employment of all current and former employees of Brothers, Mothers & Others Corporation d/b/a Cypress Grille who worked as wait staff at any time during the period of June 25, 2015, to the present. The Plaintiffs' counsel shall mail a copy of the "Notice of Rights" and "Notice of Consent" forms via regular U.S. Mail and via electronic mail to all persons contained on the list as soon as possible but no later than 10 days after receiving the list from the Defendants. The Plaintiffs' counsel shall also include a self-addressed stamped envelope in the mailing. The Plaintiffs' counsel will pay the up-front charges for said notice (postage, copying, etc.). The Plaintiffs' counsel may hire, if necessary, a third-party class action administration company to conduct the actual mailing of the notice and forms. All consent forms shall be returned to Plaintiffs' counsel, who in turn will be responsible for filing them with the Court. The Class Members shall have the option of either executing their consent form electronically via Adobe E-Signature or mailing the form to the Plaintiffs' counsel. The Class Members shall have 60 days from the date of the mailing of the Notice to file their Notice of Consent opting-in to this action as plaintiffs, unless good cause can be shown as to why the consent was not postmarked prior to the deadline. Notice shall be sent to the putative class members twice, both via regular mail and electronically. The first time should be within 10 days after the Plaintiffs' counsel receives the list of putative class members from the Defendants. The second time should be within 30 days after that same date, but this second notification should go only to those individuals who have not opted-in to the lawsuit. Within 10 days from the date of this order, the parties shall confer and jointly submit proposed scheduling recommendations to govern the remainder of this action.[CC] BURGER KING: Faces Class Action Over "No Poaching" Rule ------------------------------------------------------- Ron Hurtibise, writing for South Florida Sun Sentinel, reports that Burger King workers have been denied pay raises and opportunities for advancement because the fast-food giant illegally required franchise owners to agree not to hire each other's workers during their employment or for six months afterward, a federal lawsuit charges. The so-called "no hire" and "no solicitation" rules have been included in standard franchise agreements since at least 2010, according to the suit filed in early October in U.S. District Court in Miami. The suit, which seeks class-action status on behalf of all U.S. Burger King workers past and present since 2010, was filed by Miami-based law firm Podhurst Orseck PA and Radnor, Pa.-based Kessler Topaz Meltzer & Check LLP. It names Burger King Corp. and Burger King Worldwide Inc., both headquartered in Miami, as defendants. Jarvis Arrington, a former line cook at a Chicago-area Burger King restaurant, is the lead plaintiff. Mr. Arrington was earning $10 an hour when he attempted "to increase his pay rate and better his working conditions" by trying and failing to get a job at another Burger King restaurant in Chicago, the suit states. After being told his transfer would need to be approved, he did not hear back from the restaurant to which he had applied and sought employment outside of Burger King, the suit said. Burger King Corp. on Oct. 15 did not respond to requests for comment about the lawsuit. "No solicitation" clauses have been a common part of franchise contracts within the fast-food industry and have recently come under fire for suppressing wages and opportunities for already low-paid workers throughout the United States. Unlike "non-compete" clauses that employees are often required to sign when they begin a job, workers are often unaware of the existence of "no solicitation" clauses until they try to move to a location owned by another franchisee. In October 2016, the Department of Justice Antitrust Division and the Federal Trade Commission jointly issued guidance warning that "naked wage-fixing or no-poaching agreements among employers, whether entered into directly or through a third-party intermediary, are per se illegal under the antitrust laws." The guidance adds that "firms that compete to hire or retain employees are competitors in the employment marketplace," and it is "unlawful for competitors to expressly or implicitly agree not to compete with one another, even if they are motivated by a desire to reduce costs." While all Burger King restaurants benefit from shared distribution, operational and promotional strategies, franchisees are told by the company that they are competitors of other franchisees and company-owned restaurants, the suit states. In September, Washington state's attorney general announced it had forged agreements with 23 well-known, fast-food chains, including Burger King, to stop enforcing no solicitation clauses, also known as "no poaching" pacts, within their companies. The other companies included McDonald's, Pizza Hut, Papa John's, Denny's, Cinnabon, Arby's, Buffalo Wild Wings, and Jimmy John's. Although Burger King said it agreed to immediately stop enforcing the clause and would omit it from new and renewing franchise agreements, the lawsuit asserts it remains in force within "numerous franchises" continuing to operate under previous versions of the company's standard franchise agreement. Asked how the plaintiff's attorneys know this, Kimberly A. Justice of Kessler Topaz Meltzer & Check said by phone: "It's more the impact of the conspiracy. Just because they agreed to stop doesn't mean wages have returned to a normal competitive level. [Plus] they're not changing the language of the franchise agreements until they are up for renewal." Similar class-action lawsuits have been filed against McDonald's, Jimmy John's and Little Caesars. A Feb. 15 story posted by The Nation described how enforcement of the clause hampered efforts by a plaintiff in the McDonald's suit to advance through the company's ranks to a general manager job. When managers at an Apopka, Fla., McDonald's franchise discovered in 2015 that department manager of guest services Leinani Deslandes was pregnant, they canceled her planned week-long training course at the company's Hamburger University in Illinois, her suit claims. The franchise used the "no solicitation" clause to block Ms. Deslandes from taking a job at another McDonald's for higher pay, telling her she was "too valuable," her suit states. In June, an Illinois federal judge denied McDonald's motion to dismiss the case, stating Ms. Deslandes had adequately claimed that the company's no solicitation clause was a violation of Sherman Act antitrust law. [GN] CALIFORNIA CHECK CASHING: Gonzales Hits Illegal Account Debiting ---------------------------------------------------------------- Melanie Gonzales, individually and on behalf of all others similarly situated, Plaintiffs, v. California Check Cashing Stores, LLC and Does 1-10, Defendants, Defendants, Case No. 18-cv-08482, (C.D. Cal., October 2, 2018), seeks damages, restitution, and all other relief resulting from unjust enrichment and violation of the Electronic Funds Transfer Act. Sometime in September 2017, Plaintiff obtained a loan from California Check Cashing Stores and provided her debit account information for the purposes of automatically debiting her account to make payments on the account upon signing up for the loan. After a month, Gonzales then requested to stop the automatic debit facility, thereby revoking consent for such withdrawals. However, despite her clear revocation of authorization, Defendant continued to deduct funds from her account. California Check Cashing Stores, was a company engaged in the business of providing loans to consumers. [BN] Plaintiff is represented by: Todd M. Friedman, Esq. Meghan E. George, Esq. Adrian R. Bacon, Esq. Tom E. Wheeler, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St. Suite 780, Woodland Hills, CA 91367 Phone: (877) 206-4741 Fax: (866) 633-0228 Email: tfriedman@toddflaw.com mgeorge@toddflaw.com abacon@toddflaw.com twheeler@toddflaw.com CAMBIUM LEARNING: Law Firm Investigates Fiduciary Breach Claims --------------------------------------------------------------- Andrews & Springer LLC, a boutique securities class action law firm focused on representing shareholders nationwide, is investigating potential breach of fiduciary duty claims against the Board of Directors of Cambium Learning Group, Inc. (NASDAQCM: ABCD) ("Cambium Learning" or the "Company") relating to the sale of the Company to private equity firm Veritas Capital ("Veritas"). On October 12, 2018, the two parties signed a definitive merger agreement pursuant to which Veritas will acquire Cambium Learning in a merger worth approximately $685 million. As a result of the merger, Cambium Learning's shareholders are only anticipated to receive $14.50 per share in cash in exchange for each share of Cambium Learning. Our Firm's investigation has so far uncovered that the consideration Cambium Learning shareholders are expected to receive is inadequate. Andrews & Springer is also investigating whether Cambium Learning's directors are breaching their fiduciary duties by failing to adequately shop the company and maximize shareholder value. If you own shares of Cambium Learning and want to receive additional information and protect your investments free of charge, please visit us at http://www.andrewsspringer.com/cases-investigations/cambium-learning-group-class-action-investigation/ or contact Craig J. Springer, Esq. at cspringer@andrewsspringer.com, or call toll free at 1-800-423-6013. You may also follow us on: LinkedIn www.linkedin.com/company/andrews-&-springer-llc Twitter www.twitter.com/AndrewsSpringer Facebook www.facebook.com/AndrewsSpringer for future updates. Andrews & Springer -- http://www.andrewsspringer.com-- is a boutique securities class action law firm representing shareholders nationwide who are victims of securities fraud, breaches of fiduciary duty or corporate misconduct. Having formerly defended some of the largest financial institutions in the world, our founding members use their valuable knowledge, experience, and superior skill for the sole purpose of achieving positive results for investors. These traits are the hallmarks of our innovative approach to each case our Firm decides to prosecute. [GN] CAPITAL FITNESS: Sent Unauthorized Text Msgs, Says Abuisneineh -------------------------------------------------------------- Alaa Abuisneineh, individually and on behalf of a class of similarly situated individuals v. Capital Fitness, Inc. dba X Sport Fitness, Case No. 2018CH10924 (Ill. Cir., August 29, 2018), seeks an injunction against the Defendant for violation of the Telephone Consumer Protection Act. The Plaintiff alleges that in a misguided effort to re-enlist gym members who had previously discontinued their membership, XSport, an operator of gyms, engaged in an invasive and unlawful form of marketing through the transmission of unauthorized text message and calls to the cellular telephones of consumers throughout the nation. The Plaintiff is a resident of the State of Illinois. The Defendant is an operator of gyms across Illinois, Virginia and New York, and offers gym memberships and other related services such as personal training and massage therapy. The Defendant is an Illinois corporation with its principal place of business located in Illinois. [BN] The Plaintiff is represented by: Eugene Y. Turin, Esq. William P.N. Kingston, Esq. MCGUIRE LAW, P.C. 55 W. Wacker Drive, 9th Flr. Chicago, IL 60601 Tel: (312) 893-7002 Fax: (312) 275-7895 E-mail: eturin@mcgpc.com wkingston@mcgpc.com CELGENE: AMF Named Lead Plaintiff in Consolidated Securities Suits ------------------------------------------------------------------ In the cases, CITY OF WARREN GENERAL, EMPLOYEES' RETIREMENT SYSTEM, Plaintiff, v. CELGENE CORP., INC., et al., Defendants, CHARLES H. WITCHCOFF, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. CELGENE CORP., INC., et al., Defendants, Civil Action Nos. 18-4772 (JMV)(JBC), 18-8785 (JMV)(JBC)(D. N.J.), Judge John Michael Vazquez of the U.S. District Court for the District of New Jersey granted AMF Pensionsforsakring AB's motion to appoint the lead Plaintiff, for consolidation of related actions, and approval or selection of the counsel. On March 29, 2018, Plaintiff City of Warren General Employees' Retirement System ("Warren") filed a class action complaint seeking remedies under the Securities Exchange Act of 1934. Warren alleged that Defendants Celgene and certain Celgene officers made false statements that concealed adverse information and misled investors about Celgene's current and prospective business. Warren brought suit on behalf of all persons or entities who purchased Celgene common stock between Sept. 12, 2016 and Feb. 27, 2018. On May 3, 2018, Plaintiff Charles H. Witchcoff also filed a class action complaint under the 1934 Act against Celgene and certain Celgene executives, alleging that Celgene and certain Celgene executive officers made false statements concerning Celgene's current and long-term financial outlook. Witchcoff brought suit on behalf of all persons and entities who purchased or acquired Celgene common stock between Jan. 12, 2015 and Feb. 27, 2018. On May 29, 2018, 10 separate motions were filed in the Warren case and one was filed in the Witchcoff matter; each sought to consolidate the two cases, and appoint a lead Plaintiff and a class counsel. By June 18, 2018, however, every movant except AMF had withdrawn its motion or filed a notice of non-opposition to AMF's motion. As a result, only AMF's motion remains. Judge Vazquez finds that the two suits at issue rely on the same public statements and reports regarding Celgene's pipeline products, name similar Defendants, and assert claims arising out of Section 10(b) and Section 20(a) of the 1934 Act. The two matters clearly involve common questions of law and fact, and consolidation will promote efficiency and avoid unnecessary costs or delay. As a result, the Judge will grant AMF's motion to consolidate. The Judge will also grant AMF's motion to be appointed the lead Plaintiff. AMF is the presumptive lead Plaintiff. It allegedly lost $25,072,826 as a result of Celgene's material misstatements and omissions. Moreover, AMF also satisfies the requirements of Rule 23(a) based on the information currently available. Finally, no party has made any argument suggesting that AMF will not fairly and adequately protect the class interests, or that it would be subject to any unique defenses. AMF has selected and retained Kessler Topaz Meltzer & Check LLP to serve as the Lead Counsel, and Carella Byrne Cecchi Olstein Brody & Agnello, PC and Seeger Weiss, LLP to serve as the Co-Liaison Counsel for the class. The Judge finds that Kessler Topaz specializes in prosecuting complex class actions and is currently serving as lead or co-lead counsel in several securities class actions. Carella Byrne and Seeger Weiss also have substantial experience litigating class actions. As a result, he will grant AMF's motion to appoint the lead counsel. For the foregoing reasons, Judge Vazquez granted AMF's motion to appoint the lead Plaintiff, for consolidation of related actions, and approval or selection of the counsel. He consolidated the securities class actions filed as Civil Action Nos. 18-4772 and 18-8785 will be consolidated for all purposes including trial under Civil Action No. 18-4772, and will bear the following caption: IN RE CELGENE CORPORATION, INC. SECURITIES LITIGATION Civil Action No. 18-cv-4772 (JMV) (JBC). All papers filed in connection with the Consolidated Action need only be filed in Civil Action No. 18-4772. AMF is appointed as the lead Plaintiff; Kessler Topaz Meltzer & Check LLP is appointed the lead counsel; and Carella Byrne Cecchi Olstein Brody & Agnello, PC along with Seeger Weiss, LLP will serve as the Co-Liaison Counsel for the class. The Judge designated the lead counsel as the spokesperson for the Plaintiffs with respect to all substantive communications with the Court and with opposing counsel. No motion, request for discovery, or other pretrial proceeding will be initiated or filed by any Plaintiff without the approval of the lead counsel, so as to prevent duplicative pleadings or discovery by the Plaintiffs. The Judge denied the pending motions filed at D.E. 9, 10, 14, 17, 20, 21, 21, 22, and 23 in Civil Action No. 18-4772 and D.E. 10 in Civil Action No. 18-8785 as either voluntarily withdrawn or due to non-opposition to AMF's motion. A full-text copy of the Court's Sept. 26, 2018 Opinon and Order is available at https://is.gd/rIg0gW from Leagle.com. Chester County Employees' Retirement Fund, Movant, represented by LAURENCE M. ROSEN -- lrosen@rosenlegal.com -- THE ROSEN LAW FIRM, PA. ALLEN E. DAVIS, Movant, represented by JEFFREY MORROW POLLOCK -- jmpollock@foxrothschild.com -- FOX ROTHSCHILD LLP. PHILIP K UEHISA, Movant, represented by EVAN JASON SMITH -- esmith@brodskysmith.com -- BRODSKY & SMITH, LLC. City of St. Petersburg Police Retirement System, Movant, represented by KENNETH MARK REHNS -- krehns@saxenawhite.com -- Saxena White P.A. Celgene Investor Group, Movant, represented by EDUARD KORSINSKY -- ek@zlk.com -- LEVI & KORSINSKY LLP. ERSTE-SPARINVEST KAPITALANLAGEGESELLSCHAFT M.B.H., Movant, represented by JOSEPH J. DEPALMA -- jdepalma@litedepalma.com -- LITE, DEPALMA, GREENBERG, LLC. GENERAL RETIREMENT SYSTEM OF THE CITY OF DETROIT, Movant, represented by GARY S. GRAIFMAN, KANTROWITZ, GOLDHAMER & GRAIFMAN, ESQS. AMF Pensionsfrskring AB, Movant, represented by JAMES E. CECCHI -- JCecchi@carellabyrne.com -- CARELLA BYRNE CECCHI OLSTEIN BRODY & AGNELLO, P.C. CITY OF WARREN GENERAL EMPLOYEES' RETIREMENT SYSTEM, Individually and on behalf of all others similarly situated, Plaintiff, represented by JAMES E. CECCHI, CARELLA BYRNE CECCHI OLSTEIN BRODY & AGNELLO, P.C. DONALD J. FRITSCHIE, GEORGE MCGAHREN, KEVIN MATZKE, CHARLES MATTHEWS & KRISTINE MATTHEWS, Plaintiffs, represented by ANDREW R. WOLF -- awolf@wolflawfirm.net -- The Wolf Law Firm, LLC & MARK A. FISHER -- MFisher@wolflawfirm.net -- THE WOLF LAW FIRM, LLC. MENORA MIVTACHIM INSURANCE LTD. & MENORA MIVTACHIM PENSIONS AND GEMEL LTD., Plaintiffs, represented by PETER S. PEARLMAN , COHN, LIFLAND, PEARLMAN, HERRMANN & KNOPF, LLP. CELGENE CORPORATION, MARK J. ALLES, PETER N. KELLOGG, SCOTT A. SMITH, NADIM AHMED & TERRIE CURRAN, Defendants, represented by LAWRENCE S. LUSTBERG -- llustberg@gibbonslaw.com -- GIBBONS, PC & CYMETRA MONIQUE WILLIAMS, GIBBONS PC. JACQUALYN A. FOUSE & ROBERT J. HUGIN, Defendant Consolidateds, represented by LAWRENCE S. LUSTBERG, GIBBONS, PC. CHARLES H. WITCHCOFF, Defendant Consolidated, represented by CHRISTOPHER A. SEEGER -- cseeger@seegerweiss.com -- SEEGER WEISS LLP. CENTURYLINK: 401(k) Plan Investors Seek Class Certification ----------------------------------------------------------- Adam Lidgett, writing for Law360, reports that two investors in a 401(k) plan who have accused CenturyLink Inc. and the investment fiduciary of mismanaging the retirement fund have urged a Colorado federal court to certify the case as class action. [GN] CHARTER COMMUNICATIONS: Maceda Suit Alleges TCPA Violation ---------------------------------------------------------- Lynda Maceda, individually and on behalf of a class of similarly situated individuals v. Charter Communications, Inc. and Bright House Networks, LLC dba Spectrum, Case No. 5:18-cv-00452 (M.D. Fla., August 28, 2018), seeks damages against the Defendants for violations of the Telephone Consumer Protection Act. The Plaintiff alleges that the Defendants sent, or caused to be sent unsolicited calls to the Plaintiff's cellular telephone. The Plaintiff is a resident of Sumter County, Florida. The Defendant Charter Communications, Inc. is a Delaware corporation whose principal office is located at 400 Atlantic Street, Stamford, CT 06901. The Defendant Bright House Networks, LLC is a Delaware limited liability company whose principal office is located at 12405 Powerscourt Drive, St. Louis, MO 63131. [BN] The Plaintiff is represented by: Scott D. Owens, Esq. SCOTT D. OWENS, P.A. 3800 S. Ocean Dr., Ste 235 Hollywood, FL 33019 Tel: (954) 589-0588 Fax: (954) 337-0666 E-mail: scott@scottdowens.com COBALT INTERNATIONAL: Settles Class Action for $147MM ----------------------------------------------------- Kelly Swanson, writing for Global Investigations Review, reports that a group of financial backers for Cobalt International Energy, including Goldman Sachs, have agreed to pay $147 million to settle several claims including an allegation that the oil company misled investors about the involvement of Angolan officials in an oil deal. [GN] CONSUMER SAFETY: Johnson Sues Over Interlock Device Charges ----------------------------------------------------------- Kurt Johnson, on behalf of himself and all others similarly situated, Plaintiff, v. Consumer Safety Technology, LLC, Defendant, Case No. 2018CH12361 (Ill. Cir., October 2, 2018), seeks full refund of all unfair amounts charged and collected, compensatory and punitive damages, attorneys' fees and costs and other relief under the Illinois Consumer Fraud Act. Consumer Safety Technology (CST) is engaged in the business of selling ignition interlock devices, a device that determines blood alcohol level and is installed on vehicles whose drivers were charged with Driving While Intoxicated. On April 24, 2015, Johnson was ordered to have said device installed on his car for one year for a $10 installation cost and CST would only charge $89.95 per month for use of the device. CST would allow the consumer to cancel the contract at any time and would recalibrate the device wirelessly and remove the device without charging any additional fee. Johnson and CST did not enter into a written agreement. On or about November 30, 2015, Johnson attempted to terminate the agreement but CST would not honor the termination and continued to charge him for services, notes the complaint. [BN] Plaintiff is represented by: Keith E. Allen, Esq. MANDELL MENKES LLC One North Franklin, Suite 3600 Chicago, IL 60606 Tel: (312) 251-1000 Email: kallen@mandellmenkes.com CONWAY URBAN: Dey Sues Over Unpaid Overtime Wages -------------------------------------------------- Emily Dey, Samantha McBride and Madison Barnhill, individually and on behalf of all others similarly situated v. Conway Urban Air, LLC and UATP Management, LLC, Case No. 4:18-cv-00790 (E.D. Ark., October 25, 2018), is brought against the Defendants for violations of the Fair Labor Standards Act and the Arkansas Minimum Wage Act. The Plaintiffs brought this action as a result of the Defendants' failure to pay the Plaintiffs and other hourly-paid employees lawful overtime compensation for hours worked in excess of 40 hours per week. The Plaintiffs are residents of the State of Arkansas and worked for the Defendants' indoor amusement center in Conway. The Defendant Conway Urban Air, LLC is a domestic limited liability company located in Conway. Defendant UATP Management, LLC is a Texas limited liability company with a principal address of 317 S Jenkins Street, Suite C, Grapevine, Texas 76051. The Defendants Conway Urban Air and UATP constitute an integrated enterprise because Defendants' related activities of jointly owning and operating Urban Air indoor amusement centers. [BN] The Plaintiffs are represented by: Josh Sanford, Esq. SANFORD LAW FIRM, PLLC One Financial Center 650 South Shackleford Road, Ste 411 Little Rock, AK 72211 Tel: (501) 221-0088 Fax: (888) 787-2040 E-mail: josh@sanfordlawfirm.com CULVER, CA: Faces Class Action Over Excessive Fines Clause ---------------------------------------------------------- Milt Policzer, writing for Courthouse News Service, reported that a class-action complaint was filed in federal court in Los Angeles over an alleged violation of the excessive fines clause. The fine was $490. Is that excessive? If nothing else, this is an interesting illustration of the fact that time is not money. A 20-year sentence for jaywalking is a lot for anyone. A $1,000 fine is a lot for some people and not for others. You can't compare the two. So should the excessiveness of a fine of $490 be determined by the defendant's income level or spending habits? Would it be worth imposing $490 fines if you had to investigate everyone's salaries, side-gigs and bank accounts? In case you're wondering, the class action was filed on behalf of people caught making right turns in Culver City at red lights without stopping first. Not only did this violate the Eighth Amendment, according to the complaint, but it was also just plain wrong, because state law set the fine for red light right turns at $238. It seems, said the suit, that Culver City was automatically charging the higher amount -- the amount for just plain running a red light -- for anyone caught by intersection cameras. "Typical of persons who received such citations, plaintiff trusted the Culver City Police Department, and was ignorant of the fact that defendants were grotesquely betraying the public's trust by deliberately charging right hand turners with violating California Vehicle Code Section 21453(a) as opposed to California Vehicle Code Section 21453(b) for purposes of collecting $490 as opposed to $238." Anyway, this is not chump change. The complaint goes on to claim that more than 75 percent of the violations caught by the cameras are for right turns (in other words, there aren't all that many people whizzing straight through red lights) and that the number of class plaintiffs "is in the range of tens of thousands and probably exceeds 50,000 individuals." [GN] D & S RESIDENTIAL: Lockhart Files Labor Class Action ---------------------------------------------------- Angela Lockhart, on behalf of herself and all others similarly situated v. D & S Residential Services, LP, Case No. 2:18-cv-02586 (W.D. Tenn., August 28, 2018), is brought against the Defendant for violation of the Fair Labor Standards Act. The Plaintiff brings this action against the Defendant for unpaid overtime compensation, working "off-the clock," and related penalties and damages under the Fair Labor Standards Act. The Plaintiff is a resident of Cordova, Shelby County, Tennessee and is a former employee of the Defendant. The Defendant D & S Residential Services, LP is a Limited Partnership registered to do business in the State of Tennessee. D & S Residential Services, LP's principal office is in Austin, Texas. [BN] The Plaintiff is represented by: Alan G. Crone, Esq. Laura Ann E. Bailey, Esq. Bailey H. Dorsey, Esq. THE CRONE LAW FIRM, PLC 88 Union Avenue, 14th Floor Memphis, TN 38103 Tel: (901) 737-7740 Fax: (901) 474-7926 E-mail: acrone@cronelawfirmplc.com lbailey@cronelawfirmplc.com bdorsey@cronelawfirmplc.com DA-VINCI HOTEL: Breeze Suit Asserts Civil Rights Breach ------------------------------------------------------- Byron Breeze, Jr. has filed a class action lawsuit against Da-Vinci Hotel Corp. in New York. The case is styled as Byron Breeze, Jr. on behalf of himself, and all similarly situated individuals, Plaintiff v. Da-Vinci Hotel Corp. a New York corporation, Defendant, Case No. 1:18-cv-09817 (S.D. N.Y., Oct. 24, 2018). The nature of suit is stated as Other Civil Rights. Da Vinci Hotel is a European–style boutique hotel which is located at 244 West 56th Street.[BN] The Plaintiff is represented by: Byron Breeze, Jr., Esq. 39 Broadway, Ste. 2250 New York, NY 10006 c/o Law Offices of Nolan Klein, P.A. PRO SE DELAWARE: Saunder's Request for Counsel in Inmates Suit Denied -------------------------------------------------------------- In the case, ROBERT SAUNDERS a/k/a Shamsidin Ali, Plaintiff, v. DEPARTMENT OF CORRECTION, et al., Defendants, Civ. Action No. 15-1184-CFC (D. Del.), Judge Colm F. Connolly of the U.S. District Court for the District of Delaware denied the Plaintiff's (i) third request for counsel, (ii) two motions to compel, and (ii) motion for a revised scheduling order. The Plaintiff, a prisoner housed at the James T. Vaughn Correctional Center ("JTVCC") in Smyrna, Delaware, filed the action pursuant to 42 U.S.C. Section 1983 and the Americans with Disabilities Act. Pending are several motions filed by the Plaintiff including a third request for counsel, two motions to compel, and a motion for a revised scheduling order. The Plaintiff has filed a document titled "Class Action Allegations." His previous motions seeking class certification were denied on Dec. 2, 2016. The filing seeks no relief and, therefore, it is not clear if he again seeks class certification, if the allegations are intended to persuade the Court to reconsider its previous denial of class certification, or if he is merely briefing the issue. Judge Connolly takes no action on the filing but notes that, given the Complaint's allegations, the class certification is not appropriate. The Plaintiff appears pro se and has been granted permission to proceed in forma pauperis pursuant to 28 U.S.C. Section 1915. He has previously been denied counsel. He seeks counsel on the grounds that he is unable to afford counsel, he has attempted to secure counsel, the case involves investigations and obtaining depositions, and records are required that are not available to him based upon his inmate status. He also indicates that he has serious medical issues which result in pain and discomfort. Assuming, solely for the purpose of deciding this motion, that the Plaintiff's claims have merit in fact and law, the Judge finds that several of the Tabron v. Grac factors militate against granting his request for counsel. After reviewing the Plaintiff's Complaint, the Judge concludes that the case is not so factually or legally complex that requesting an attorney is warranted. In addition, the Plaintiff has ably represented himself to date. Further, nothing has changed since the Court last denied the Plaintiffs requests for counsel. Therefore, he denied the Plaintiffs request for counsel without prejudice to renew. Should the need for counsel arise later, one can be sought at that time. The Court entered a scheduling order on Nov. 3, 2016, setting a deadline for discovery to be initiated so that it would be completed on or before May 3, 2017. All deadlines have passed, although the Plaintiff recently filed a motion to extend all deadlines by 21 days. The Plaintiff moves for an order compelling Defendant Department of Correction ("DOC") to respond to his first set of interrogatories. This is the Plaintiffs second motion to compel responses to the same interrogatories. On Jan. 26, 2017, he sought to compel the Defendants to answer interrogatories 4, 5, 8, 11, 13, 14, 16-23, and 26-28. The motion was denied. In the instant motion, he again seeks responses to the DOC's answers to many of same interrogatories raised in the January 26, 2017 motion. In addition, he moves to compel answers to Interrogatories 10, 24, and 25. The Court previously addressed many of the DOC's answers to the interrogatories and found them adequate. Judge Connolly finds that the Plaintiff could have sought to compel answers to Interrogatories 10, 24, and 25 in his second motion to compel filed on Jan. 26, 2017. He did not. Nor did he file the instant motion to compel until May 17, 2018, one year after the expiration of the discovery deadline. The Plaintiff provides no reason for the delay in filing the motion. Therefore, the Judge denide the motion as duplicative and untimely. The Plaintiff moves to compel answers to interrogatories propounded upon Defendant Roxanne Kinlock on April 10, 2018. He sought discovery from Kinlock long after the expiration of the discovery deadline and, when there was no response, filed a motion to compel. The interrogatories were untimely served upon Kinlock, and she was not required to respond to them. Therefore, the Judge denied the motion to compel. Finally, the Plaintiff moves to revise the "Briefing or Scheduling Order." As mentioned, all deadlines have passed. Currently pending motion is a motion for summary judgment filed by State Defendants. The Judge denied the Plaintiff's motion without prejudice to renew, following a ruling on the dispositive motion. A full-text copy of the Court's Sept. 26, 2018 Memorandum is available at https://is.gd/cxTGvw from Leagle.com. Shamsidin Ali, also known as, Plaintiff, pro se. Department of Corrections & Dr. Vincent Carr, Defendants, represented by Joseph Clement Handlon -- joseph.handlon@state.de.us -- Department of Justice. William Lynch, Dr. Laurie Spraga & Roxanne Kinlock, Defendants, represented by Nicholas Robert Wynn -- wynnn@whiteandwilliams.com -- White & Williams & Randall Shaw MacTough -- randall.mactough@saul.com -- Saul Ewing Arnstein & Lehr LLP. Dr. Vincent Carr, Cross Claimant, represented by Joseph Clement Handlon, Department of Justice. DENKA PERFORMANCE: Butler Moves to Certify Class of Residents ------------------------------------------------------------- The Plaintiffs in the lawsuit styled JUANEA L. BUTLER, et al. v. DENKA PERFORMANCE ELASTOMER LLC, et al., Case No. 2:18-cv-06685-MLCF-KWR (E.D. La.), move the Court for certification to proceed as a class action on brought on behalf of a class defined as: "(1) Those persons who, at any time from January 1, 2011 through the present, have lived, worked, attended school, and/or actually resided within a geographical boundary of St. John the Baptist Parish (hereinafter referred to as "St. John"), starting at the northwest corner of zip code 70084, then proceeding eastward along I-10 through zip code 70084 and the southside part of zip code 70068, to the northeast corner of the class boundary where Interstate-10 meets the St. John line within zip code 70068 of St. John, then proceeding southward within St. John along the St. John boundary line over the Mississippi River and through zip code 70057 in St. John to LA Hwy. 3127 within zip code 70049, then proceeding west/southwest along LA Highway 3127 within zip code 70049, to the southwest corner of the class boundary where LA Highway 3127 meets the St. John parish line within zip code 70049, then proceeding northward within St. John along the St. John parish line, through zip codes 70049, 70090 70051, and 70084 to I-10 within zip code 70084 (hereinafter referred to as "defined areas"); and (2) who experienced one or more of the following physical symptoms: headaches; sinus problems; dizziness; insomnia; trouble breathing, respiratory irritation, or other respiratory problems; chest pains; acute cardiac palpitations; acute gastrointestinal disorder; acute bronchitis; acute onset of asthma; exacerbation of pre-existing asthma; fatigue; nausea; skin rash; temporary hair loss; chronic coughing; chronic nasal discharge; chronic cardiovascular disorder; chronic throat irritation; chronic eye irritation; chronic thyroid disorder; anxiety; and depression, resulting from their exposure to chloroprene or other chemical substance released from the Pontchartrain Works Facility." The Plaintiffs also move for appointment of Danny Russell, Esq., and the Russell Law Firm, LLC, as class counsel. The Plaintiffs further ask the Court to defer hearing until such time as the parties have had a reasonable opportunity to obtain discovery on class certification issues.[CC] The Plaintiffs are represented by: Danny Russell, Esq. RUSSELL LAW FIRM, LLC 733 E. Airport Ave., Suite 201 Baton Rouge, LA 70806 Telephone: (225) 307-0088 Facsimile: (225) 307-0087 E-mail: danny@dannyrusselllaw.com DIRECT FLOW: Reynolds' Bid to Certify Class Nixed Due to Accord --------------------------------------------------------------- The Hon. Kandis A. Westmore terminated the motion for class certification in the lawsuit styled J. JASON REYNOLDS v. DIRECT FLOW MEDICAL, INC., et al., Case No. 4:17-cv-00204-KAW (N.D. Cal.). On September 21, 2018, Plaintiff J. Jason Reynolds filed a motion for class certification, with the hearing set for December 20, 2018. On October 11, 2018, the parties filed a joint notice of settlement and request to continue the hearing on the motion for class certification. In light of the notice of settlement, the Court terminates the motion for class certification. This terminates the opposition and reply dates, as well as the hearing date. If the settlement is not approved, the Court will re-open the motion and set a new briefing and hearing schedule.[CC] DISH NETWORK: Challenges Uninjured Class Members' Certification --------------------------------------------------------------- Amanda Bronstad, writing for Law.com, reports that a defense bar organization is urging a federal appeals court to find that unnamed members in a class action against Dish Network should not have been certified because they did not have the same injuries as lead plaintiffs in the case. DRI-The Voice of the Defense Bar, in an amicus brief filed on Oct. 10, urged the U.S. Court of Appeals for the Fourth Circuit to de-certify the class and reverse judgment against Dish Network in a Telephone Consumer Protection Act class action. The group seeks clarity amid scattered case law on a key issue in class actions: whether uninjured class members who are not the named plaintiffs have standing under Article III of the U.S. Constitution. "There are some courts that have said that you can't have class certification for proposed classes where some of the putative unnamed class members are not injured," said Felix Shafir -- fshafir@horvitzlevy.com -- of Horvitz & Levy in Burbank, California, who filed the brief for DRI. "And there are other courts that have disagreed with that. There's been a circuit split that's continuing to grow, and it doesn't appear the Fourth Circuit has taken a position on this." The Products Liability Advisory Council filed a separate brief in the case in support of Dish Network. Dish Network filed its opening brief on Oct. 4 after U.S. District Judge Catherine Eagles of the Middle District of North Carolina issued a $61.3 million final judgment against it. Eagles had earlier granted certification of the case, which alleged that Dish, through marketing company Satellite Systems Network, illegally made several telemarketing sales calls to plaintiff Thomas Krakauer, whose phone number was on the Do Not Call Registry. The complaint sought statutory damages of at least $500 per call, which the TCPA allows for individuals who receive "more than one telephone call within any 12-month period" by the same company. In 2017, a jury sided with the plaintiff, awarding $400 per telephone call, which Eagles trebled for "willful or knowing violations" of the TCPA. The judge noted that Dish had agreed in 2009 with 46 attorneys general to monitor its telemarketers, including SSN. "The evidence shows that Dish's TCPA compliance policy was decidedly two-faced," she wrote. In its appeal, Dish argued the class included members who were not telephone subscribers as described under the TCPA. Instead, Eagles certified a class of anyone "associated with" a phone number that SSN called. "That impermissibly broad class definition encompasses au pairs, former boyfriends, and children who have long since moved away—indeed, potentially anyone ever linked to the phone number," wrote Dish attorney Eric Shumsky -- eshumsky@orrick.com -- a partner at Orrick, Herrington & Sutcliffe in Washington D.C. Mr. Shumsky did not respond to a request for comment. Mr. Krakauer's attorney, John Barrett of Bailey & Glasser, said in an email, "The amicis' briefs presented one side of the story. When all sides are presented, as they will be when we file our brief, the issues will look very different, and we believe the district court's rulings will be affirmed." Mr. Shafir, DRI's attorney, said other appellate courts have split on the issue of whether unnamed class members need to have the same injuries as class representatives. The U.S. Court of Appeals for the Eighth Circuit, in its 2013 decision in Halvorson v. Auto-Owners Insurance, and the Second Circuit, in its 2006 ruling in Denney v. Deutsche Bank AG, have found that judges can't certify classes that include uninjured class members, he said. But other courts, like the First Circuit's In re Nexium Antitrust Litigation decision in 2015, found that classes could be certified so long as the uninjured members are "de minimis." "The courts are really all over the place on these issues," Mr. Shafir said. The Third Circuit, in a 2015 decision in Neale v. Volvo Cars of North America LLC, ruled that only the lead plaintiffs need to have standing, he said, and the U.S. Supreme Court has yet to address the issue directly. "What the Supreme Court previously indicated is if you have variations of injury between the named plaintiff and unnamed class members, that would be a problem from a constitutional standing requirement and, in some cases, the court has indicated that goes to class certification," he said. "In other cases, the court has dealt with it in other ways. The Supreme Court has recognized the case law in this area is a little bit of a mess, but has not been entirely consistent with how it dealt with that issue." The Products Liability Advisory Council, in its amicus brief, addressed a different issue: Whether Dish was vicariously liable for the actions of SSN, a "third party independent marketing company." In its opening brief, Dish also argued that it lacked complete control over SSN. PLAC made a similar argument in an amicus brief before the Seventh Circuit in a case brought by the Federal Trade Commission. In that case, a federal judge last year ordered Dish to pay $200 million to the FTC and four states: California, Illinois, North Carolina and Ohio. U.S. District Judge Sue Myerscough of the Central District of Illinois found that Dish, through independent contractors, violated state and federal "Do Not Call" regulations. The Seventh Circuit heard oral arguments in that case on Sept. 17. [GN] EMERGENCY CONSULTANTS: Keller Seeks Certification of FLSA Class --------------------------------------------------------------- The Plaintiff in the lawsuit entitled ROBERT M. KELLER, for himself and on behalf of all others similarly situated v. EMERGENCY CONSULTANTS, LLC, a Michigan Limited Liability Company (f/k/a Emergency Consultants, Inc.) and DERIK K. KING, an individual, Case No. 1:18-cv-00448-RJJ-RSK (W.D. Mich.), pursuant to Section 16(b) of the Fair Labor Standards Act, moves for entry of an order from the Court conditionally certifying a proposed collective FLSA class defined as: All those individuals identified in plaintiff's Exhibit 1 (ECI Bates No. 000132-000138). Mr. Keller also asks the Court to: 1) require the Defendants to, within 14 days of this Court's order, provide a list in electronic and importable format, of the names, addresses, phone numbers and e-mail addresses of all potential opt-in plaintiffs; 2) implement a procedure whereby court-approved notice of the Plaintiff's FLSA claims is sent via U.S. Mail and via e-mail to his proposed class; and 3) preserve the equitable tolling the statute of limitations issue for the putative collective class members for later consideration when the record is more fully developed.[CC] The Plaintiff is represented by: Andrew J. Blodgett, Esq. Anders J. Gillis, Esq. PARKER HARVEY PLC 901 S. Garfield Avenue, Suite 200 Traverse City, MI 49686 Telephone: (231) 929-4878 E-mail: ablodgett@parkerharvey.com agillis@parkerharvey.com - and - Matthew L. Wikander, Esq. Charissa Huang, Esq. SMITH HAUGHEY RICE & ROEGGE, P.C. 100 Monroe Center NW Grand Rapids, MI 49503-2802 Telephone: (616) 774-8000 E-mail: mwikander@shrr.com chuang@shrr.com The Defendants are represented by: Allan S. Rubin, Esq. Daniel C. Waslawski, Esq. JACKSON LEWIS P.C. 2000 Town Center, Suite 1650 Southfield, MI 48075 Telephone: (248) 936-1900 E-mail: rubina@jacksonlewis.com daniel.waslawski@jacksonlewis.com ENGEL & VOLKERS: Dominguez Files ADA Suit in New York ----------------------------------------------------- A class action lawsuit has been filed against Engel & Volkers Americas, Inc. The case is styled as Yovanny Dominguez on behalf of himself and all others similarly situated, Plaintiff v. Engel & Volkers Americas, Inc., Defendant, Case No. 1:18-cv-09794 (S.D. N.Y., Oct. 24, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. Engel & Volkers is one of the world's service companies specialising in the brokerage of premium residential property, commercial real estate, yachts and aircraft. Based in over 800 locations in total, Engel & Volkers offers both private and institutional clients a professionally tailored range of services.[BN] The Plaintiff appears pro se. ERBA DIAGNOSTICS: Jan. 23 Settlement Fairness Hearing Set --------------------------------------------------------- The Rosen Law Firm, P.A. on Oct. 15 disclosed that the United States District Court Southern District of Florida has approved the following announcement of a proposed class action settlement that would benefit purchasers of securities of ERBA Diagnostics, Inc. (OTCMKTS:ERBA): SUMMARY NOTICE OF PENDENCY AND PROPOSED CLASS ACTION SETTLEMENT TO: ALL PERSONS WHO PURCHASED OR OTHERWISE ACQUIRED SECURITIES OF ERBA DIAGNOSTICS, Inc. ON NYSE FROM June 14, 2013 and November 20, 2015, INCLUSIVE. YOU ARE HEREBY NOTIFIED, pursuant to an Order of the United States District Court for the Southern District of Florida, that a hearing will be held on January 23, 2019, at 2:00 p.m. before the Honorable Marcia G. Cooke, United States District Judge of the Southern District of Florida, Wilkie D. Ferguson, Jr. United States Courthouse, 400 North Miami Avenue, Room 11-2, Miami, Florida 33128, for the purpose of determining: (1) whether the proposed settlement of the claims in the above-captioned Action for consideration including the sum of $1,215,000 should be approved by the Court as fair, reasonable, and adequate; (2) whether the proposed plan to distribute the settlement proceeds is fair, reasonable, and adequate; (3) whether the application of Class Counsel for an award of attorneys' fees of up to one third of the Settlement Amount, reimbursement of expenses of not more than $35,000 and an incentive payment of no more than $5,000 to Class Representative, should be approved; and (4) whether this Action should be dismissed with prejudice as set forth in the Stipulation of Settlement dated June 28, 2018 (the "Settlement Stipulation"). If you purchased the securities of ERBA Diagnostics, Inc. ("ERBA") on NYSE during the period from June 14, 2013 and November 20, 2015, both dates inclusive (the "Settlement Class"), your rights may be affected by this Settlement, including the release and extinguishment of claims you may possess relating to your ownership interest in ERBA securities. If you have not received a detailed Notice of Pendency and Proposed Settlement of Class Action ("Notice") and a copy of the Proof of Claim and Release Form, you may obtain copies by writing to or calling the Claims Administrator at: In re ERBA Diagnostics, Inc. Securities Litigation, c/o Strategic Claims Services, 600 N. Jackson St., Ste. 205, P.O. Box 230, Media, PA 19063; (Tel) (866)274-4004; (Fax) (610)565-7985; info@strategicclaims.net, or going to the website, www.strategicclaims.net. If you are a member of the Settlement Class, in order to share in the distribution of the Net Settlement Fund, you must submit a Proof of Claim and Release Form postmarked no later than December 10, 2018 to the Claims Administrator, establishing that you are entitled to recovery. Unless you submit a written exclusion request, you will be bound by any judgment rendered in the Action whether or not you make a claim. If you desire to be excluded from the Settlement Class, you must submit a request for exclusion in the manner and form explained in the detailed Notice so that it is received no later than December 10, 2018, by the Claims Administrator. All members of the Settlement Class who have not requested exclusion from the Settlement Class will be bound by any judgment entered in the Action pursuant to the Settlement Stipulation. Any objection to the Settlement, Plan of Allocation, or Class Counsel's request for an award of attorneys' fees and reimbursement of expenses and award to Class Representative must be in the manner and form explained in the detailed Notice and received no later than January 9, 2019, by the following: The Rosen Law Firm, P.A. Laurence M. Rosen, Esq. 275 Madison Avenue, 34th Floor New York, NY 10016 Class Counsel STEARNS WEAVER MILLER WEISSLER ALHADEFF & SITTERSON, P.A David C. Pollack, Esq. Andrea N. Nathan, Esq. Museum Tower Suite 2200 150 West Flagler Street Miami, FL 33130 Counsel for ERBA Defendants MCDERMOTT WILL & EMERY LLP Seth L. Friedman, Esq. 340 Madison Avenue New York, NY 10173 Counsel for Mayer Hoffman McCann P.C. If you have any questions about the Settlement, you may call or write to the Claims Administrator or Class Counsel at the addresses provided above. PLEASE DO NOT CONTACT THE COURT OR THE CLERK'S OFFICE REGARDING THIS NOTICE. Dated: September 28, 2018 BY ORDER OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA [GN] EVANGELINE PARISH, LA: Faces Class Suit Over Investigative Holds ---------------------------------------------------------------- WRAL.com reports that six people who accused law enforcement officers in a rural Louisiana community of illegally detaining and secretly jailing them will share settlement proceeds totaling nearly $50,000. The settlement terms are disclosed in documents that The Associated Press obtained through public records requests. The six plaintiffs sharing $47,500 in settlement proceeds represent a fraction of the cases in which law enforcement officers in Evangeline Parish have been accused of using unconstitutional "investigative holds" to detain people for questioning. A Justice Department report said the Ville Platte Police Department and Evangeline Parish Sheriff's Office used the practice more than 900 times between 2012 and 2014. A settlement agreement resolved one of the lawsuits before a judge could decide whether to certify it as a class action that could benefit many more people. [GN] EXCELSIOR TRANSPORTATION: McHenry Files Suit Over FLSA Breach ------------------------------------------------------------- Cornelle McHenry, individually and on behalf of others similarly situated v. Excelsior Transportation, Inc., Case No. 4:18-cv-02982 (S.D. Tex., August 28, 2018), is brought against the Defendant for violation of the Fair Labor Standards Act. The Plaintiff filed this complaint on his behalf and on behalf of other drivers and similar individuals who were not paid one and one-half times their regular hourly rate for hours worked in excess of forty in the workweek at any time from August 28, 2015, to the present. The Plaintiff is a resident of Harris County, Texas and worked as a driver for the Defendant. The Defendant Excelsior Transportation, Inc. is a Texas corporation with its principal place of business in Harris County, Texas. [BN] The Plaintiff is represented by: Andrew W. Reed, Esq. G. Scott Fiddler, Esq. FIDDLER & ASSOCIATES, P.C. 1004 Congress, 3rd Floor Houston, TX 77002 Tel: (713) 228-0070 Fax: (713) 228-0078 E-mail: areed@fiddlerlaw.com scott@fiddlerlaw.com FACEBOOK INC: Colorado Residents Join Security Breach Class Suit ---------------------------------------------------------------- Janet Oravetz, writing for 9NEWS.com, reports that several Facebook users affected by the social media giant's latest security breach have filed a federal class-action lawsuit against the company, a release from Franklin D. Azar & Associates said. The lawsuit alleges that a flaw that allowed hackers access to personal data has exposed millions of people to the risk of identity theft. Franklin D. Azar & Associates filed the suit in the Northern District of California on behalf of plaintiffs in Colorado, California and New Jersey. Two Colorado residents are listed in the lawsuit. Facebook announced in late September that it had discovered a vulnerability in its code that allowed hackers to access and take over as many as 50 million user accounts, although it had not yet determined the extent to which linked accounts, passwords, or financial data were compromised or misused. (The company has since estimated that the breach affects 30 million users, including 14 million who had personal information stolen from their profiles.) The lawsuit complaint notes that the company had learned of the breach, which involved a feature that lets users see what their profile looks like to others, nearly two weeks before the public announcement. It also accuses Facebook of "failing to maintain adequate security measures." They're requesting a jury trial. Attackers exploited a vulnerability in Facebook's code that affected "View As," a feature that lets people see what their own profile looks like to someone else. The feature was built to give users more control over their privacy. Three software bugs in Facebook's code connected to this feature allowed attackers to steal Facebook access tokens they could then use to take over people's accounts. These access tokens are like digital keys that keep people logged in to Facebook so they don't need to re-enter their password every time they use Facebook. [GN] FANDUEL INC: Obtains Favorable Ruling in Fantasy Sports Case ------------------------------------------------------------ David Wells, writing for Courthouse News Service, reported that the Indiana Supreme Court ruled on Oct. 24 that fantasy sports websites do not violate the state's publicity-rights law by using the names and pictures of college athletes without their consent. Akeem Daniels and Cameron Stingily both played football for Northern Illinois University, and were joined as plaintiffs by former Indiana University football player Nicholas Stoner in a lawsuit claiming fantasy sports websites FanDuel and DraftKings used their likenesses without permission. FanDuel and DraftKings run fantasy sports games where users pay an entry fee and assemble virtual sports teams to compete against other users for cash prizes. The games use the names of real athletes and use real-world stats to determine points for the assembled teams. Following the filing of the original lawsuit, DraftKings and FanDuel suspended their offering of games based upon collegiate sports, but brought back such contests this year. Messrs. Daniels, Stingily and Stoner argued that the use of their names in the fantasy games and advertisements violated their rights to publicity as they did not agree to be involved with the websites. They sought $5 million in damages. The players associations for the NFL, NBA, WNBA, MLB, NHL, U.S. Women's National Soccer Team and Major League Soccer filed a joint amicus brief with the Indiana Supreme Court in support of the former college players, arguing that the fantasy contests are "games, not a reference source." "They differ substantially from products that courts have previously found exempt as products designed to promote ‘the free dissemination of information' about newsworthy matters of public interest," the brief states. The case made its way to the Seventh Circuit, but the Chicago-based appeals court punted it back to the Indiana Supreme Court in March. On Oct. 24, the five-judge panel of the state's high court unanimously ruled in favor of the websites, finding that the use of the plaintiff's likenesses and the use of their statistics were exempted from the state's publicity-rights law because that information is considered "newsworthy." Justice Steven David authored the 13-page opinion and wrote that the websites' "use of players' names, images, and statistics in conducting fantasy sports competitions bears resemblance to the publication of the same information in newspapers and websites across the nation." David went on to write that the information was not "stripped" of its news value simply because the information is being used in the context of a fantasy sports game. In regards to the use of the collegiate athletes' likenesses in advertising, the court again ruled in favor of FanDuel and DraftKings, finding that the information is not presented in a way to make the public think that the athletes are endorsing the product. The court did not totally shut the door on future lawsuits regarding advertisements, "Importantly, however, this finding does not foreclose a court from closely scrutinizing the actions of a particular defendant to ensure no unauthorized endorsements are being made," David wrote. David was joined by Chief Justice Loretta Rush and Justices Mark Massa, Geoffrey Slaughter and Christopher Goff in handing down the ruling. A copy of the Opinion is available at https://is.gd/ghkYjX FINISAR CORP: OK Firefighters Fund Move to Certify Securities Class ------------------------------------------------------------------- Lead Plaintiff Oklahoma Firefighters Pension and Retirement System moves the Court for an order certifying the case captioned In re FINISAR CORPORATION SECURITIES LITIGATION, Case No. 5:11-cv-01252-EJD (N.D. Cal.), as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure. The Oklahoma Firefighters seeks certification of a class of all persons and entities, who purchased or acquired the publicly traded common stock of Finisar Corporation during the period from December 2, 2010, through March 8, 2011, inclusive (the "Class Period"), and who were damaged thereby (the "Class"). The Plaintiff also ask the Court to appoint it as Class Representative, and to designate Abraham, Fruchter & Twersky, LLP, as counsel for the certified Class. The Plaintiff requests oral argument for this Motion, as well as an evidentiary hearing, including examination of the experts. The Court will commence a hearing on March 7, 2019, at 9:00 a.m., to consider the Motion.[CC] The Lead Plaintiff is represented by: Ian D. Berg, Esq. Takeo A. Kellar, Esq. ABRAHAM, FRUCHTER & TWERSKY, LLP 11622 El Camino Real, Suite 100 San Diego, CA 92130 Telephone: (858) 764-2580 Facsimile: (858) 764-2582 E-mail: iberg@aftlaw.com tkellar@aftlaw.com - and - Mitchell M.Z. Twersky, Esq. ABRAHAM, FRUCHTER & TWERSKY, LLP One Penn Plaza, Suite 2805 New York, NY 10119 Telephone: (212) 279-5050 Facsimile: (212) 279-3655 E-mail: mtwersky@aftlaw.com FIRE SPRINKLER: Faces Class Action Over Viking 457 Product ---------------------------------------------------------- Joe Bartels, writing for KTNV, reports that the popular fire sprinkler that some have dubbed "a ticking time bomb" is now at the center of a new nationwide class action lawsuit. The Viking 457 has been under investigation after multiple homeowners have come forward with complaints the sprinkler head has deployed without a fire or heat present. The issue was first reported by 13 Action News when Megan Murray came forward to explain how her home was heavily damaged. "Nothing was on fire, and obviously that was a clue," Ms. Murray told 13 Action News in September. The fire sprinkler flooded the lower level of the Henderson home with multiple inches of water, according to Ms. Murray. A new class action lawsuit has been filed in United States District Court seeking damages and attorneys fees stemming from more claims the same sprinkler head is to responsible for damages in additional homes. "We want a proactive program that we can implement through litigation so everyone has the comfort and peace of mind that they do not have a ticking time bomb in their homes and that [The Viking 457] can be removed at Viking's expense," said Attorney Joe Sauder. Mr. Sauder says the true number of homes with the Viking 457 installed nationwide is unknown. Mr. Sauder estimates the sprinkler is installed in 'tens of thousands' of homes. 13 Action News has confirmed the sprinkler head in question was installed in at least 15,000 homes in California and Nevada. Specifically in Nevada, there were at least 588 homes, according to Fire Sprinkler Systems Inc., which installed the device in homes between 2013 and 2015. There are new claims of similar sprinkler deployments in Maryland, California and Nevada that have caused damage. "There is a failure internally, related to a deficiency in the assembly," explained Mr. Sauder. "So this is not something that can be blamed on excessive heat as Viking has taken the position that it has tested some of these and it is [caused by] excessive heat," added Mr. Sauder. Viking Corp. has denied an claims their product is defective. A company spokesperson released a statement regarding the class action lawsuit to 13 Action News: "Viking is aware of the class action. We strongly dispute the claims and will defend ourselves vigorously. However, we cannot comment further on pending legal matters." Viking Corp. Spokesperson Mr. Sauder says the next step in the legal process is for Viking to issue a challenge to the complaint. HERE'S WHAT TO KNOW ABOUT THE VIKING 457 SITUATION: * The sprinklers were installed between Jan. 1, 2013 and December 31, 2015 by Fire Sprinkler Systems Inc. (could be installed by other companies outside these dates) * Visit Fire Sprinkler Systems Inc.'s website to verify your address if you have VK457 sprinklers installed * Viking no longer manufactures the sprinkler heads in question 13 Action News has learned the Viking 457 was at the center of a civil lawsuit in Clark County District Court, in which the sprinkler was blamed for damaging a multi-million dollar custom home under construction. [GN] FIRST RESPONSE: Does Not Pay Minimum Wage, Cubias Suit Alleges -------------------------------------------------------------- Roberto Rodas Cubias, individually and on behalf of all others similarly situated v. First Response Cleaning Corp., The Coastal Group Inc., Carl Walsh, and Charlotte Walsh, Case No. 1:18-cv-06021 (E.D. N.Y., October 27, 2018), is brought against the Defendants for violations of the Fair Labor Standards Act and the New York Labor Law. The Plaintiff alleges that the Defendants failed to pay proper minimum wage compensation required by the federal and state law and regulations to the Plaintiff. The Plaintiff worked for the Defendant as a laborer. The Defendants are a damage restoration contractor servicing Brooklyn and its environs. The Defendants share employees and provide joint restoration services to customers through Defendant First. [BN] The Plaintiff is represented by: Michael Taubenfeld, Esq. FISHER TAUBENFELD LLP 225 Broadway, Suite 1700 New York, NY 10007 Tel: (212) 571-0700 Fax: (212) 505-2001 FUNKO: Scott & Scott Fails to Class Action Lead Counsel Role ------------------------------------------------------------ Dean Seal, writing for Law360, reports that a Washington federal judge on Oct. 15 denied an investor's lead plaintiff motion asking for Scott & Scott Attorneys at Law LLP to be appointed lead counsel in a proposed class action against Funko. [GN] FUYAO GLASS: Discovery Process Limited to 120 Opt-in Plaintiffs --------------------------------------------------------------- Thomas Gnau, writing for Dayton Daily News, reports that it appears that the U.S. District Court in Cincinnati is setting up the rules of the road for the discovery process in a workers' class-action lawsuit against Fuyao Glass America. According to a report filed with the court Monday, the discovery process will be limited to 120 "opt-in" plaintiffs. Fuyao, one of the Dayton area's fastest growing manufacturers, is being sued by 636 current and former workers in a legal bid to change the way the company schedules and pays employees. For the "opt-in" class, Fuyao gets to choose 80 plaintiffs, the plaintiffs themselves get to choose 20 opt-in plaintiffs and another 20 will be randomly selected, the court said in the new report. In a lawsuit's discovery phase, before the trial happens, lawyers for each side depose or interview participants in the case, request documents and gather information to build their respective cases. "It's customary to do what we call a discovery sample class," said Bob DeRose, the Columbus attorney representing plaintiffs in the case. The idea is to save time by selecting a set of "representative" plaintiffs, avoiding the need to depose all of the more than 600 plaintiffs in the case. Tied to the case also are 4,000 plaintiffs in a possible "putative Ohio class," a number that includes both current and former Fuyao employees. "They do (have 4,000 putative class members), because I can go back three years," Mr. DeRose said. "Fuyao is a huge case." According to the report, Fuyao can take up to 30 depositions of the opt-in plaintiffs in the discovery class, as well as depose three additional plaintiffs. Depositions will not take more than four hours, the report also says. No trial has been scheduled yet. Fuyao has about 2,300 workers today making automobile safety glass at a plant in Moraine. The case goes back to the original plaintiff, Julia Staggs, who filed her suit in June 2017 in Dayton's federal court. Staggs worked at Fuyao from September to December 2016, according to her suit. Ms. Staggs has alleged that she worked overtime at Fuyao without being paid a time-and-a-half wages for that overtime work. She also claimed that she and others were not completely relieved of duties during what were supposed to be breaks from work. Mr. DeRose and the plaintiffs have said that Fuyao automatically deducts from payroll for lunch breaks -- whether or not employees actually take the breaks. Some employees work through lunch or they don't take the entire 30 minutes as an uninterrupted break from work, they claim. "They're not paying for all the hours worked," DeRose has told the Dayton Daily News. "We are maintaining this is a company-wide policy." Attorneys for Fuyao have denied the allegations. A message seeking comment for this story was sent to them on Oct. 16. In February 2018, a federal judge granted class-action status to plaintiffs in the case. [GN] GAP INC: Bid to Remand Coladonato Suit Over Bogus Discounts Nixed ----------------------------------------------------------------- Judge Joseph H. Rodriguez of the U.S. District Court for the District of New Jersey denied the Plaintiff's motion to remand the case, CARON COLADONATO, Individually and on behalf of All Others Similarly Situated, Plaintiff, v. THE GAP, INC., et al., Defendants, Civil Action No. 17-11998 (D. N.J.). The purported class action was filed in the Superior Court of New Jersey, Law Division, Camden County, seeking injunctive relief against the Defendants. The Plaintiff alleges that she purchased goods on numerous occasions from the Defendants' Gap Factory and Banana Republic Factory stores in New Jersey and contends that the Defendants violated New Jersey's Consumer Fraud Act by allegedly advertising arbitrary and false base prices for items in New Jersey stores, advertising items for sale at percentages that misrepresented the actual discounts received, and charging full price on items advertised at discounted rates. The Plaintiff seeks declaratory relief whereby the Court adjudges the Defendants' past conduct to be in violation of federal and state pricing regulations and injunctive relief enjoining the Defendants from continuing these complained of practices in their Gap Factory and Banana Republic Factory stores in New Jersey. The Plaintiff's Complaint defines the class to include herself as well as a putative class consisting of all New Jersey citizens who purchased any purportedly discounted item from a Gap Factory or Banana Republic Factory store in New Jersey between Oct. 9, 2011 and the present. She also alleges that the putative class is composed of at least 1,000 persons. The Defendants timely removed the matter to the Court pursuant to the Class Action Fairness Act. The Plaintiff's complaint specifically states that the total amount in controversy for its claims, including attorney's fees, is less than $5 million. She argues that the Complaint does not seek money damages or any relief to remedy past misconduct, including refunds; rather, declaratory and injunctive relief are sought prospectively only. Judge Rodriguez finds that to demonstrate that the amount in controversy exceeds $5 million, the Defendants have submitted a sworn statement from a Senior Director indicating that as of the end of 2017, the Banana Republic Factory Stores located in New Jersey had sales over $20 million since October 2011, the proposed starting date for the putative class. Based on the volume of sales during the proposed class period and the Plaintiff's allegation that she suffered damages in the amount of her purchase price, the Defendants arrive at an amount in controversy exceeding $20 million. While Plaintiff argues that this amount is speculative, she has put forth no proof of the amount in controversy to counter the Defendants' valuation of her claim. As such, the Judge finds, by a preponderance of the evidence, that the amount-in-controversy requirement has been satisfied. Accordingly, Judge Rodriguez denied the Plaintiff's motion to remand the matter. A full-text copy of the Court's Sept. 26, 2018 Memorandum Opinion and Order is available at https://is.gd/ZYIz2d from Leagle.com. CARON COLADONATO, on behalf of herself and all others similarly situated, Plaintiff, represented by JOSEPH A. OSEFCHEN, DeNITTIS OSEFCHEN, P.C., ROSS H. SCHMIERER, DeNittis Osefchen Prince, P.C. & STEPHEN PATRICK DENITTIS -- sdenittis@denittislaw.com -- DENITTIS OSEFCHEN, PC. THE GAP, INC., GAP (APPAREL) LLC, GAP INTERNATIONAL SALES, INC., BANANA REPUBLIC, LLC & BANANA REPUBLIC (APPAREL) LLC, Defendants, represented by KRISTIN MCKEON HADGIS -- kristin.hadgis@morganlewis.com -- MORGAN LEWIS BOCKIUS LLP. GOOGLE INC: UK Court Ruling to Impact Large-Scale Class Actions --------------------------------------------------------------- Rory Lynch, writing for computing.co.uk, reports that a recent decision by the English High Court has made large-scale class actions for misuse of personal internet data more difficult to litigate. In Lloyd v Google LLC [2018] EWCH 2599 (QB), the consumer protection campaigner and former Executive Director of Which?, Richard Lloyd, started a class action against Google in relation to their 'Safari Workaround' and 'Double-Click Cookie'. Google's underhand activities in relation to the Safari Workaround were identified back in 2012 by PhD researcher, Jonathan Mayer. This led to litigation in both the US and UK, with Google paying out $39.5 million in fines and damages in the United States alone. The scandal involved the acquisition and use of browser generated information ("BGI") from third party cookies that enabled the placer of the cookies to track the internet activity of the device in question. Such cookies can be used to monitor internet activity so as to facilitate tailored advertising targeted at that user. These are known as 'internet based adverts'. In the period of June 2011 to February 2012, one of Google's third party cookies was known as the 'Double-Click Cookie'. It would be placed on a device if the user visited a website that contained content from the company's 'Double-Click' domain. During this period, Apple's Safari browser was set by default to block third party cookies. However, Apple created some exceptions to this default setting and Google created the 'Safari Workaround' via their Double-Click Cookie to take advantage of this exception. Consequently, until 2012 when Apple removed these exceptions, Google were able to surreptitiously collect BGI via Safari and aggregate this data into useful categories such as 'football lovers' or 'current affairs enthusiasts'. Controversially, such BGI could also reveal users' more intimate and personal likes and dislikes. Google was then able to sell this data to marketers and advertisers and profit from the deception. Lloyd's claim related to the "secret tracking and collation by Google" of information as to individuals' internet usage. He claimed that this constituted the processing of personal data in breach of the statutory duty imposed by section 4 of the UK Data Protection Act. This section of the Act stipulates that personal data should be processed fairly and lawfully. In the case of sensitive personal data, this should be obtained only for "specified and lawful purposes" and "shall not be processed in any manner incompatible with that purpose". Mr Lloyd was not only suing Google on his own behalf, but also on behalf of a class of other residents in England and Wales who he deemed to be victims of the Safari Workaround. It was estimated that, due to the ubiquity of iPhones, this 'class' of residents would total approximately 4.4 million persons. Lloyd argued that each of these residents should be entitled to GBP750 each in damages, which would cost Google in the region of GBP1 and GBP3 billion. [GN] GRAIN PROCESSING: Court Documents Show Settlement Fund Details -------------------------------------------------------------- Meredith Ecklund, writing for Muscatine Journal, reports that court documents filed on Oct. 12 detail how money from the $45 million settlement fund from the Grain Processing Corp. class action lawsuit will be distributed and what claim forms look like. The document also included a plain-language notice that will go to class members and a request for the court to set a date for a fairness hearing. Plaintiffs previously asked for an order granting preliminary approval of the settlement that would provide a total $50 million settlement. In addition to the settlement fund, GPC would pay another $6.5 million in pollution controls at the plant. Pending preliminary approval of the agreement, claims notices will be distributed to class members. There are more than 2,000 households in the affected area surrounding GPC in the Southend. A deadline for class members to object also is included for preliminary approval. "Toxic air has blanketed Muscatine for decades," resident and class member Jessica Brackett said. "Harm caused by GPC far surpasses $51 million. I live on the edge of the class boundary and still have to close my windows numerous times a week in attempts to keep the smell of pollution out." Ms. Brackett and 10,000 to 16,000 other residents who lived in the 1.5 mile radius of the plant between April 24, 2007 and Sept. 1, 2017 may file claims to receive a portion of the settlement fund, settlement documents read. According to the settlement, every person living in those homes during that time -- adults and children -- are considered class members unless they opted out of the class action or were only guests in the affected residences. The time frame for filing claims is proposed to be 120 days and will begin 28 days after preliminary approval is granted. Notification of the claims process will go out 35 days following a mailing of the notice. The documents also advise claimants not wait until the last minute to file. The fairness hearing will determine if the settlement is "fair, adequate and reasonable," according to the settlement documents. If the court determines those criteria were not met, the settlement will be void and the class will prepare for trial, the documents read. The class action began in 2012 by residents citing "smoke, odor and haze" coming from GPC as a nuisance. [GN] HASBRO INC: Shareholders File Securities Class Action ----------------------------------------------------- Shareholder rights law firm Robbins Arroyo LLP on Oct. 16 disclosed that purchasers of Hasbro, Inc. (NasdaqGS: HAS) have filed a class action complaint against the company's officers and directors for alleged violations of the Securities Exchange Act of 1934 between April 24, 2017 and October 23, 2017. Hasbro, together with its subsidiaries, operates as a play and entertainment company. View this information on the law firm's Shareholder Rights Blog: https://www.robbinsarroyo.com/hasbro-inc/ Hasbro Accused of Misleading Investors About Impact of Toys "R" Us Bankruptcy According to the complaint, Toys "R" Us, Inc. is one of Hasbro's biggest customers, accounting for 9% of the company's consolidated net revenues in fiscal year 2016. Although Hasbro was experiencing sales issues in two key markets and likely knew that Toys "R" Us would file for bankruptcy and liquidate, Hasbro represented that the company was well-positioned to deliver profitable growth. Before the extent of the issues Hasbro faced became publicly known, Hasbro insiders sold $147 million of their personally held Hasbro stock. On September 19, 2017, Toys "R" Us filed for bankruptcy protection. Then, on October 23, 2017, Hasbro admitted that the company's financials had been negatively impacted by the Toys "R" Us bankruptcy, including a 5% decline in Hasbro's U.S. and Canada segment quarterly operating profit. On this news, Hasbro's stock fell from the class period high of $115.95 to only $89.75 per share on October 23, 2017, and has yet to recover. [GN] HEALTHSOURCE GLOBAL: Does Not Properly Pay Workers, Price Suit Says ------------------------------------------------------------------- Cathryn-Lucy Price, on behalf of herself and all others similarly situated v. Healthsource Global Staffing, Inc. and Does 1-100, Case No. RG18918770 (Calif. Super., August 29, 2018), is brought against the Defendants for violations of the Fair Labor Standards Act and the California Labor Code. The Plaintiff alleges that the Defendants have for years, failed to pay class and collective members for work performed including regular hours, overtime hours, and minimum wage for hours worked. The Plaintiff is a resident of Fremont in Alamaeda County. The Plaintiff worked as a Traveling Credentialing Analyst for the Defendants from May 2016 to August 2016. The Defendant provides healthcare staffing for hospitals and other medical facilities in California. [BN] The Plaintiff is represented by: Matthew S. Da Vega, Esq. Matthew Fisher, Esq. Ted Mechtenberg, Esq. DA VEGA FISHER MECHTENBERG, LLP 232 E. Anapamu St. Santa Barbara, CA 93101 Tel: (805) 232-4471 Fax: (877) 535-9358 E-mail: mdavega@mdmflaw.com HMS HOST: Flores Suit Seeks to Recover Unpaid Overtime ------------------------------------------------------ Rolando Flores, individually, on behalf of himself and other similarly situated current and former employees v. HMS Host Corporation, HMS Host USA, Inc., Case No. 8:18-cv-03312 (D. Md., October 26, 2018), seeks to recover unpaid overtime compensation and other damages under the Fair Labor Standards Act. The Plaintiff brings this action on behalf of the following similarly situated persons: All current and former hourly-paid non-exempt Warehouse Runner/Receiver/Utility employees of HMS Host USA, Inc., and HMS Host Corporation employed in the United States at any time during the applicable limitations period covered by this Collective Action Complaint. The Plaintiff was employed by Defendants as a non-exempt Warehouse Runner/Receiver/Utility employee of Defendants, who performed duties of unloading carts located within the airports where HMS operates, and delivering to HMS owned restaurants/facilities. The Defendant, HMS Host Corporation is a Delaware corporation with its corporate headquarters located at 6600 Rockledge Drive, Bethesda, Maryland 20817-1080. HMS Host Corporation is a multinational, multibillion-dollar corporation. HMS Host USA, Inc. owns and operates food and beverage franchises, including, but not limited to, Starbucks, Moe's, P.F. Chang's, Pei Wei, Carrabba's, Burger King, Outback Steakhouse, Longhorn Steakhouse, and Chick-fil-A, in major airports across the United States and in malls and travel centers located in the northeastern United States. [BN] The Plaintiff is represented by: Timothy F. Maloney, Esq. Alyse L. Prawde, Esq. JOSEPH, GREENWALD & LAAKE PA 6404 Ivy Lane Suite 400 Greenbelt, MD 20770 Tel: (301) 220-2200 Fax: (240) 553-1737 E-mail: tmaloney@jgllaw.com aprawde@jgllaw.com IMPERVA INC: RM Law Firm Investigates Fiduciary Breach Claims ------------------------------------------------------------- RM LAW, P.C. is investigating potential claims against the board of directors of Imperva, Inc. ("Imperva" or the "Company") (NASDAQ: IMPV) concerning possible breaches of fiduciary duty and other violations of law related to the Company's efforts to sell the Company to Thoma Bravo LLC in a transaction valued at approximately $2.1 billion. If you own shares of Imperva and would like to learn more about this class action or if you wish to discuss these matters and have any questions concerning this announcement or your rights, contact Richard A. Maniskas, Esquire toll-free at (844) 291-9299 or to sign up online, click here. You may also email Mr. Maniskas at rm@maniskas.com. Under the terms of the agreement, shareholders of Imperva will receive $55.75 in cash for each share of Imperva common stock. Our investigation concerns possible breaches of fiduciary duty and other violations of state law by the board of directors of Imperva for not acting in the Company's shareholders' best interests in connection with the sale process. RM LAW, P.C. -- http://www.rmclasslaw.com-- is a national shareholder litigation firm. RM LAW, P.C. is devoted to protecting the interests of individual and institutional investors in shareholder actions in state and federal courts nationwide. [GN] IMPINJ INC: Baton Rouge Employees' Fund Files Securities Class Suit ------------------------------------------------------------------- Employees' Retirement System of the City of Baton Rouge and Parish of East Baton Rouge, Plaintiff, v. Impinj, Inc., Chris Diorio, Evan Fein and Eric Brodersen, Defendants, Case No. 18-cv-01447, (W.D. Wash., October 2, 2018) alleges violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. Employees' Retirement System of the City of Baton Rouge and Parish of East Baton Rouge is a defined benefit pension plan that provides retirement allowances and other benefits to regular employees of the City of Baton Rouge. It purchased publicly traded securities of Impinj between November 3, 2016 and February 15, 2018. The Plaintiff claims that Impinj's stock traded at artificially inflated prices due to continued concealment, and misrepresentation of material facts regarding their business metrics, operations and financial prospects. Impinj sells integrated circuit tags that provides wireless information about tagged items, usually for apparel, medical supplies, automobile parts, driver's licenses, food and luggage. [BN] The Plaintiff is represented by: Bradley S. Keller, Esq. BYRNES & KELLER LLP 1000 Second Avenue, 38th Floor Seattle, WA 98104 Telephone: (206) 622-2000 Facsimile: (206) 622-2522 Email: bkeller@byrneskeller.com - and - Avi Josefson, Esq. Michael D. Blatchley, Esq. BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP 1251 Avenue of the Americas, 44th Floor New York, NY 10020 Tel: (212) 554-1493 Fax: (212) 554-1444 Email: avi@blbglaw.com mikeb@blbglaw.com JACOB TRANSPORTATION: Greene Suit Settlement Has Final Approval --------------------------------------------------------------- In the case, ROBERT GREENE, THOMAS SCHEMKES, and GREGORY GREEN on behalf of themselves and all others similarly situated, Plaintiffs, v. JACOB TRANSPORTATION SERVICES, LLC, a Nevada Corporation, doing business as Executive Las Vegas; JAMES JIMMERSON, an individual, CAROL JIMMERSON, an individual, and Does 1 through 50, inclusive, Defendants, Lead Case No. 2:09-CV-00466-GMN-CWH, Member Case No. 2:11-CV-00355-JAD-NJK (D. Nev.), Judge Gloria M. Navarro of the U.S. District Court for the District of Nevada granted the Motion for Final Approval of Class Action Settlement. On Sept. 21, 2018, the Court considered the Motion for Final Approval of Class Action Settlement. The counsel for the Plaintiffs and the Defendants appeared at the hearing. Judge Navarro adopted the defined terms in the Settlement Agreement. he confirmed as final the settlement class, pursuant to Nev. R. Civ. P. 23(b)(2), defined as all Limousine Driver employees who worked for Jacob Transportation Services, LLC, doing business as Executive Las Vegas, at any time from March 10, 2006 through May 31, 2018. She confirmed the appointment of Robert Greene, Thomas Schemkes, and Gregory Green as the Class Representatives and the enhancement payments of $20,000 to Robert Greene and $5,000 each to Thomas Schemkes and Gregory Green. She further confirmed the appointment of Thierman Buck LLP as the class counsel for the settlement class and approved their requests for attorneys' fees and litigation costs of $401,666.67 and $80,000, respectively. 6. The class notice was distributed to class members, pursuant to this Court's orders, and fully satisfied the requirements of Nev. R. Civ. P. 23 and any other applicable law. Pursuant to Nev. R. Civ. P. 23(e), the Judge granted final approval to the settlement and finds that the settlement is fair, reasonable, and adequate in all respects, including the attorneys' fees, costs, and incentive award provisions. She finds that, as of the date of the Order, each and every class member has waived and released claims as set forth in the Settlement Agreement and Notice of Class Action Settlement. She also finds that the settlement administrator Simpluris is entitled to $40,000 for administrative fees. The Judge directed the Parties to effectuate the settlement terms as set forth in the Settlement Agreement and the settlement administrator to calculate and pay the claims of the class members in accordance with the terms set forth in the Settlement Agreement. She finds that the following individuals are not included in the class and are expressly excluded from the settlement: (1) Patrick Nixon because his claim form was incomplete; (2) Mensur Maruff because he was not employed with the company during the relevant time period; (3) Abay Gebremariam because he did not meet the extension deadline; (4) Tadele Wolderiam because he was a shuttle bus driver and does not qualify for the class; and (5) Shimelis Wube because he was a shuttle bus driver and does not qualify for the class. The Judge further finds that the following individuals are included in the class: (1) Ellen Russell; (2) Vally Grigore, who is deceased, but his estate will be included in the class; (3) Francine Ferrero, who the Court finds has proof that she timely submitted her claim form; and (4) Jon Ferguson, who was sent the appropriate documents to his last known address and he failed to provide notice to the parties of his change his address and to submit a claim form before the deadline, but the Court will allow him to submit his claim form, because he came to court, with his current address, email, and/or phone number no later than Oct. 3, 2018, 5:00 p.m. Pacific Standard Time. Pursuant to the Settlement Agreement, the Defendants will fund the settlement by April 21, 2019. The Clerk of Court will enter judgment accordingly. A full-text copy of the Court's Sept. 26, 2018 Order is available at https://is.gd/Obu5EL from Leagle.com. Robert Greene, Gregory Green & Thomas Schemkes, Plaintiffs, represented by Mark R. Thierman -- mark@thiermanbuck.com -- Thierman Buck, LLP, Jason J. Kuller -- jason@kullerlaw.com -- Kuller Law PC, Joshua D. Buck -- josh@thiermanbuck.com -- Thierman Buck, LLP, Joshua R. Hendrickson, Thierman Buck, LLC & Leah Lin Jones -- leah@thiermanbuck.com -- Thierman Buck, LLP. Carol Jimmerson & Jacob Transportation Services, LLC, doing business as Executive Las Vegas, Defendants, represented by James J. Jimmerson -- jjj@jimmersonlawfirm.com -- Jimmerson Hansen, P.C. James Jimmerson, Defendant, pro se. James Jimmerson, Defendant, represented by Kevin Hejmanowski , The Jimmerson Law Firm PC. Jacob Transportation Services, LLC, Unconsolidated (Order # 159), Consol Counter Claimant, represented by Ikenna K. Odunze, Jimmerson Hansen, PC & James J. Jimmerson, Jimmerson Hansen, P.C. Thomas Thatcher Schemkes, Unconsolidated (Order # 159), Consol Counter Defendant, represented by Jason J. Kuller, Kuller Law PC, Joshua D. Buck , Thierman Buck, LLP & Mark R. Thierman, Thierman Buck, LLP. JRC VENTURES: Smith Seeks to Certify Companionship Workers Class ---------------------------------------------------------------- Merrie Smith seeks an order conditionally certifying a collective action in the matter styled MERRIE SMITH and JESSICA BROOKE RUSSELL, individually and on behalf of others similarly situated v. JRC VENTURES, INC., JACQUE R. COLLETT, GRUBB & ASSOCIATES, INC., and JOSEPH GRUBB, Case No. 1:16-cv-00499-CHS (E.D. Tenn.). Ms. Smith moves for class certification pursuant to the Fair Labor Standards Act and seeks authority to send notice of the right to join this lawsuit to all companionship employees, who worked for JRC from January 1, 2015, through January 1, 2017. The Plaintiff also requests a period of 90 days to distribute the Notice and file consent forms with the Court. She asks the Court to enter an Order directing JRC to provide telephone numbers and e-mail addresses of potential opt-in plaintiffs no later than seven days after the date of the entry of the Order granting the Motion. She further requests that the Court permit her to provide the Notice to potential opt-in plaintiffs via e-mail, in addition to U.S. mail.[CC] The Plaintiff is represented by: Frank P. Pinchak, Esq. Doug S. Hamill, Esq. BURNETTE, DOBSON & PINCHAK 711 Cherry Street Chattanooga, TN 37402 Telephone: (423) 266-2121 E-mail: fpinchak@bdplawfirm.com dhamill@bdplawfirm.com - and - Michael A. Wagner, Esq. WAGNER, NELSON & WEEKS 701 Market Street, Suite 1418 Chattanooga, TN 37402 Telephone: (423) 756-7923 E-mail: maw@wagnerinjury.com JUST BORN: Escobar's Bid to Certify Class Taken Under Submission ---------------------------------------------------------------- The Hon. Terry J. Hatter, Jr., entered an order in the lawsuit titled STEPHANIE ESCOBAR v. JUST BORN, INC., ET AL., Case No. 2:17-cv-01826-TJH-PJW (C.D. Cal.), and has taken under submission these motions: -- Plaintiff's motion for class certification, filed on May 3, 2018; -- Defendant's motion to exclude, filed on August 2, 2018; -- Defendant's motion to exclude opinions of Plaintiffs' proposed expert Forrest V. Morgeson III, filed on August 2, 2018; and -- Defendant's motion to exclude opinions of Plaintiffs' proposed expert Claire K. Sand, filed on August 2, 2018.[CC] KERYX BIOPHARMA: Investors Sue Over $1.3BB Akebia Merger -------------------------------------------------------- Reenat Sinay, writing for Law360, reports that Keryx Biopharmaceuticals Inc. misled investors about the company's financial future in documents related to its $1.3 billion acquisition by Akebia Therapeutics Inc., shareholders alleged in a proposed securities class action. [GN] KMG CHEMICALS: Faruqi & Faruqi Files Securities Class Action ------------------------------------------------------------ Faruqi & Faruqi, LLP, on Oct. 15 disclosed that it has filed a class action lawsuit in the United States District Court for the Northern District of Texas, No. 4:18-cv-00785, on behalf of shareholders of KMG Chemicals, Inc. ("KMG" or the "Company") (NYSE:KMG) who have been harmed by KMG's and its board of directors' (the "Board") alleged violations of Sections 14(a) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act") in connection with the proposed merger of the Company with Cabot Microelectronics Corporation ("Cabot"). On August 14, 2018, the Board caused the Company to enter into an Agreement and Plan of Merger ("Proposed Transaction") under which each share of KMG common stock will be exchanged for $55.65 in cash and 0.2 shares of Cabot common stock (the "Merger Consideration"). The shareholder vote on the Proposed Transaction is expected to occur on November 13, 2018. The complaint alleges that the Form S-4 Registration Statement (the "S-4") filed with the Securities and Exchange Commission ("SEC") on September 12, 2018, violates Sections 14(a) and 20(a) of the Exchange Act because it provides materially incomplete and misleading information about the Company and the Proposed Transaction, including information concerning the Company's financial projections and analysis, on which the Board relied to recommend the Proposed Transaction as fair to KMG shareholders. If you wish to obtain information concerning this action, you can do so by clicking here: www.faruqilaw.com/KMGnotice. Take Action Plaintiff is represented by Faruqi & Faruqi, LLP, a law firm with extensive experience in prosecuting class actions, and significant expertise in actions involving corporate fraud. Faruqi & Faruqi, LLP, was founded in 1995 and the firm maintains its principal office in New York City, with offices in Delaware, California, Georgia, and Pennsylvania. If you wish to serve as lead plaintiff, you must move the Court no later than 60 days from the date of this notice. Any member of the putative class may move the Court to serve as lead plaintiff through counsel of their choice, or may choose to do nothing and remain an absent class member. If you wish to discuss this action, or have any questions concerning this notice or your rights or interests, please contact: Nadeem Faruqi, Esq. James M. Wilson, Jr., Esq. FARUQI & FARUQI, LLP 685 3rd Avenue, 26th Floor New York, NY 10017 Telephone: (877) 247-4292 or (212) 983-9330 E-mail: nfaruqi@faruqilaw.com jwilson@faruqilaw.com [GN] KRAFT HEINZ: Faces Class Action Over Capri Sun Drinks ----------------------------------------------------- Courthouse News Service reported that a federal class action accuses Kraft Heinz of falsely claiming that its Capri Sun drinks are free of preservatives when they actually contain citric acid, a well-known preservative. A copy of the Complaint is available at https://is.gd/BlRIVK KRISHNA SCHAUMBURG: Biometric Privacy Lawsuit Reinstated -------------------------------------------------------- Jeffrey D Neuburger, Esq. -- jneuburger@proskauer.com -- of Proskauer Rose LLP, in an article for The National Law Review, reports that an Illinois appellate court reversed a lower court's dismissal of biometric privacy claims against a tanning salon franchisee that had collected the plaintiff's fingerprint to allow entry in its own salon and any L.A. Tan salon location nationwide. (Sekura v. Krishna Schaumburg Tan, Inc., 2018 IL App (1st) 180175 (Ill. App. Sept. 28, 2018)). The plaintiff alleged that the tanning salon violated the Biometric Information Privacy Act (BIPA), which regulates the collection, retention, and disclosure of personal biometric identifiers and biometric information, by collecting her fingerprints without obtaining the required written release and providing the required disclosure concerning its retention policy, and further by disclosing her fingerprints to a third-party vendor. [Note: In 2016, in a separate suit, the same plaintiff settled BIPA claims with L.A. Tan Enterprises, Inc., operator (directly and through franchisees) of L.A. Tan tanning salons]. In allowing the suit to go forward, the appellate court held that a litigant may sue for a violation of BIPA without proving additional harm. BIPA expressly provides that "any person aggrieved by a violation" of the statute may pursue money damages and injunctive relief against the offending party. Notably, the Sekura court distinguished the Rosenbach decision -- the only Illinois state appellate panel to rule on the "aggrieved" party issue under BIPA, and which held that a person "aggrieved" by a violation of the Act must allege an injury or harm in addition to the violation of the Act. In Sekura, the court held that even it were to follow its sister court's decision in Rosenbach, the plaintiff's allegations that the tanning salon disclosed her fingerprint to a third-party vendor constituted harm enough to make plaintiff an "aggrieved" party. "To be clear, we find that the statutory violations to plaintiff's privacy constituted harm even without disclosure, but the disclosure in the case at bar makes it distinguishable from Rosenbach." Interestingly, the Sekura court also stated that the plaintiff's allegations of mental anguish over what would happen to her biometric data if the tanning salon went bankrupt also constituted an injury or adverse effect. The outcome of Sekura is in line with the Dixon case from this summer, where an Illinois federal court followed Rosenbach yet still declined to dismiss a BIPA suit brought by a former employee who asserted BIPA and negligence claims against a senior living center, among others, over the scanning of her fingerprints onto an employee biometric timekeeping device and the alleged disclosure of the data to an out-of-state vendor. The Dixon court noted that the allegation that the defendant disclosed plaintiff's fingerprint data to its third-party vendor without informing her distinguished this case from others in which alleged violations of BIPA were determined insufficiently concrete. Looking ahead, it remains to be seen how courts will interpret the meaning of "aggrieved" under BIPA (and how such interpretation will affect class certification issues). Regardless, we will likely see more plaintiffs' lawyers drafting complaints, where factually appropriate, to allege third-party disclosure of biometric data and mental anguish claims to overcome standing and statutory challenges. Some clarity will presumably arrive soon, as this past May the Illinois Supreme Court accepted the appeal of the Rosenbach decision where the high court will answer the question of whether a person "aggrieved" by a violation of BIPA must allege some injury or harm beyond a procedural violation (Note: the appeal is fully briefed, including numerous amicus briefs submitted in support of both parties; oral argument has not been scheduled). Still, even if the Illinois Supreme Court returns a business-friendly ruling that an aggrieved party must show a harm beyond a procedural violation of BIPA, we will likely be left with a dichotomy of sorts -- what we might call Rosenbach claims and Rosenbach+ claims. The current appeal will likely resolve issues of pure procedural violations (Rosenbach claims), where plaintiffs are generally on notice about the collection and use of biometric data but do not allege any purported harms beyond violations of statutory rights under BIPA, but may not answer exactly what is a concrete harm under the statute. Indeed, as we've seen in the Sekura decision, litigants have adapted since the decision and have managed, in several instances, to survive dismissal motions by asserting that employers or companies not only failed to follow BIPA's procedural notice and consent requirements but also disclosed biometric data to outside vendors for processing without consent (Rosenbach+ claims). It is the latter harm (and now perhaps even claims of mental anguish as well) where courts may distinguish Rosenbach to allow BIPA suits to survive dismissal. Ultimately, perhaps the Sekura decision will be appealed and joined with the Rosenbach appeal, but we will have to wait and see. Proskauer Rose will continue to monitor these emerging developments in biometric privacy litigation, including the important biometric privacy litigation still ongoing in California. [GN] KURZ REAL ESTATE: Murias Suit Asserts Invasion of Privacy ---------------------------------------------------------- Daniel Murias, individually and on behalf of all others similarly situated v. Kurz Real Estate, Corporation, Case No. 1:18-cv-23494 (S.D. Fla., August 28, 2018), seeks damages against the Defendant for violations of the Telephone Consumer Protection Act. The Plaintiff seeks injunctive relief to halt Defendant's illegal conduct, in sending unsolicited marketing, which has resulted in the invasion of privacy, harassment, aggravation, and disruption of the daily life of thousands of individuals, notes the complaint. The Plaintiff is a resident of Broward County, Florida. The Defendant is a real estate company. The Defendant is a Florida corporation whose principal office is located at 3692 Grand Ave, Miami FL 33133. [BN] The Plaintiff is represented by: Andrew J. Shamis, Esq. SHAMIS & GENTILE, P.A. 14 NE 1st Avenue, Suite 400 Miami, FL 33132 Tel: (305) 479-2299 E-mail: ashamis@shamisgentile.com - and - Scott Edelsberg, Esq. EDELSBERG LAW, PA 19495 Biscayne Blvd #607 Aventura, FL 33180 Tel: (305) 975-3320 E-mail: scott@edelsberglaw.com LONDON TERRACE: Blech and Chassman Orderded to Pay $12K in Dugan ---------------------------------------------------------------- In the case, WILLIAM DUGAN, MASHA D'YANS, GEORGETTE GAGNON, LOWELL D. KERN, MICHAEL McCURDY, JOSE PELAEZ, TRACY SYNDER, MICHAEL J. WALSH, LESLIE M. MACK, ANITA ZITIS and JAMES DOERR, ON BEHALF OF THEMSELVES and ALL OTHERS SIMILARLY SITUATED, Plaintiff, v. LONDON TERRACE GARDENS, L.P., Defendant, Case No. 603468/2009 (N.Y. Sup.), Judge Carmen Victoria St. George of the Supreme Court, New York County granted in part and denied in part the Defendant's motion for (1) judgment of possession for the premises in dispute and back rent; (2) provisional relief in additional rent if it ultimately satisfies its burden of proof on one additional issue; (3) possession of the premises; and (4) use and occupancy of $15,198.44 per month during the pendency of the motion. London Terrace began receiving J-51 tax benefits on July 1, 2003. The benefits ended on June 30, 2014. Because of these benefits, all rental apartments in the building were deemed rent-stabilized throughout this period. In 2009, William Dugan and others brought the lawsuit, a proposed class action against London Terrace, alleging that the Defendant had not treated the apartments as rent-stabilized units exempt from luxury decontrol while the building received J-51 tax benefits and therefore had overcharged their rent. Justice Lucy Billings, who then presided over the lawsuit, granted class certification and consolidated the action with another lawsuit for the same relief, which also had been brought as a proposed class action. Justice Billings' defined the class as all past and current tenants of London Terrace Gardens who have been charged or continue to be charged deregulated rents during defendant's receipt of J-51 tax benefits under New York Real Property Tax Law Section 489 (1) (a) and New York City Administrative Code Sections 11-243 and 11-244. Since 2005, tenants David Blech and Margie Chassman have been the tenants of 16AB and 16EF. A few years after Justice Billings certified the class in the New York State Supreme Court, London Terrace commenced a nonpayment proceeding in Housing Court against Blech and Chassman, who rented apartments 16AB and 16EF (London Terrace Gardens, L.P. v Blech [L & T Index No. 059254/2015]). Said had been combined into one unit, as had apartments 16A and 16B. All four apartments subsequently were combined into one unit, 16ABEF. The tenants' answer to the Housing Court proceeding alleged as affirmative defenses and counterclaims that 1) London Terrace improperly treated the apartment as non-rent-stabilized from the commencement of their tenancy, in 2005, onward, and the landlord also did not reduce their rent when it discontinued their access to the complex' swimming pool, and thus owed the tenant rent abatement and treble damages; 2) the landlord increased the rent illegally during their tenancy and filed false rent registrations; 3) the landlord breached the warranty of habitability; and 4) pursuant to the lease, the landlord owed the Defendant legal fees for commencing the eviction proceeding. In 2016, Justice Billings granted London Terrace's motion to remove the Blech/Chassman proceeding from Housing Court and consolidate it with the Dugan class action. On Nov. 13, 2017, Justice Billings issued a decision which established a formula for computing the rent overcharges and the rent due for each apartment in the class. As is relevant in the case, the decision addressed the leases of tenants who rent apartments which were subject to rent stabilization before London Terrace began receiving J-51 tax benefits. The court concluded that these tenants were entitled to a rent stabilized lease continuing after the J-51's expiration until London Terrace lawfully deregulated the apartment under the Rent Stabilization Code ("RSC")(Dugan v London Terrace Gardens, L.P., 2017 NY Misc LEXIS 5391, ("Dugan 6")). In Dugan v. London Terrace Gardens, (Index No. 603468/2008, Billings, J. [2017] ("Dugan 10"), the Defendant moved for past due rent against Blech and Chassman as well as ongoing use and occupancy payments for their apartments. The court held that London Terrace had the right to collect payments from these tenants during the pendency of the action. The court therefore directed that the Defendant must calculate the payments for use and occupancy of apartments 16AB and 16EF separately, using the computation she set forth in Dugan 6. Both Dugan 6 and Dugan 10 have been appealed, with the litigants currently scheduled to submit their papers in January 2019. The orders, however, have not been stayed. In the current motion and cross-motion, the Defendant seeks (1) judgment of possession for the premises in dispute and back rent; (2) provisional relief in additional rent if it ultimately satisfies its burden of proof on one additional issue; (3) possession of the premises; and (4) use and occupancy of $15,198.44 per month during the pendency of the motion. It seeks a hearing, if necessary, to determine the base rent. The Defendant alleges that not only have Blech and Chassman failed to pay rent since the order in Dugan 10, but they have not paid any rent since October 2014. The papers continue to argue that when the apartments were combined a "new" apartment was created, and the computation therefore operates on the assumption that it was appropriate to lease the units to Blech and Chassman at an initial rent of $12,800. London Terrace states that, if the rent increases are calculated as mandated by the rent stabilization laws, Blech and Chassman owe back rent of $479,598.75. Blech and Chassman oppose the motion and cross-move for a money judgment against London Terrace in the amount of $2,772,932.88 along with legal fees and interest. They point out that Justice Billings rejected the Defendants' argument that Units 16AB and 16EF should be treated as one combined unit, and therefore the premise of the Defendant's calculation is flawed. Instead, pursuant to Justice Billings' decision in Dugan 10, they claim that, using the rents that should have been charged, the proper combined rents for apartments 16AB and 16EF should be $5,738.70. Using the amount that they claim they owe under Owens 10, they state that they owe London Terrace $188,040.51. Deducting this from the purported amount due to them, they state they are owed $2,772,932.88. Finally, the Court notes that there is conflicting case law in this Department concerning the proper method to determine the legal base rent. More recently, in a 3-2 decision, the First Department rejected its own precedent and found that absent evidence of fraud, it is improper to consider rents charged prior to the four-year limitations period to determine the base rent. It also notes that, as Justice Billings indicated in her rulings, Blech and Chassman cannot seek treble damages in the context of the class action litigation. For all these reasons, and after consideration of all papers submitted in connection with the motion, Judge St. George determines that it is premature to make a final determination about the rent, back rent, and overcharge issues at this time. Any determination would be inappropriate in light of the fact that appeals are pending in two critical issues in the motion. She does note that the Defendant's proposed method of computation conflicts with Justice Billings' conclusion that defendant has yet to establish that combining the two apartments created a "new" apartment and that the base rent should be that in the last stabilized lease. In addition, Blech and Chassman's proposed judgment includes treble damages -- which, as the Dfendant notes, are not available in the class action -- and also conflicts with the First Department's ruling in Regina (which, in turn, is inconsistent with the First Department's prior precedent). Despite this, and consistent with Justice Billings' orders in Dugan 10 and Dugan 13, the latter of which determined the proper back rent and monthly rent due to London Terrace for other apartments in the class action, Blech and Chassman. The Judge notes that, by stipulation, the parties previously agreed that for four months Blech and Chassman would pay a monthly use and occupancy of $12,000 from April 2018 through July 2018. When the Court attempted to mediate the issue of use and occupancy, Blech and Chassman did not agree to extend the stipulation. She determines that this is a reasonable rent -- subject, of course, to its return if the Defendant ultimately owes Blech and Chassman back rent and damages. Accordingly, Judge St. George granted the motion is to the limited extent that Blech and Chassman will pay London Terrace $12,000, retroactive to Sept. 1, 2018; and denied the remainder of the motion, and the cross-motion. A full-text copy of the Court's Sept. 26, 2018 Order is available at https://is.gd/KtSqh6 from Leagle.com. Borah, Goldstein, Altschuler, Nahins & Goidel, P.C. -- dvernon@vgllp.com -- 377 Broadway, 6th Floor, New York, NY 10013, for London Terrace Gardens, L.P., defendant. Vernon & Ginsburg, LLP -- RGoldstein@borahgoldstein.com -- 261 Madison Avenue, New York, NY 10016, for plaintiffs Blech and Chassman. MARYSVILLE, CA: Faces Class Action Over Property Destruction ------------------------------------------------------------ Rachel Rosenbaum, writing for Appeal-Democrat, reports that a Berkeley-based attorney stood on the steps of Marysville City Hall on Oct. 15, reading aloud the story of Rhonda Thomson and how she became homeless after her husband lost his job and couldn't find work. "We're telling stories in this complaint -- true stories," said Anthony Prince, who filed a federal class-action lawsuit against Marysville, Yuba County and others in connection with the destruction of property when homeless encampments were cleared out in 2016. It was filed in the U.S. District Court in Sacramento on Oct. 14 and seeks monetary damages as well as an injunction against the city and county from enforcing a no-camping ordinance. It also seeks an injunction commanding both entities to declare a shelter crisis and immediately make available city and county-owned buildings to the homeless. The 40-page complaint outlines the backgrounds of the 13 plaintiffs and how they came to be homeless, ranging from loss of work, injury and family circumstances. Those plaintiffs are Raelynn Butcher (known as the "mayor" of the former Hollywood homeless encampment); Billy Reid; Jolene Reid; Susan Extein; Stanley Extein; Michael Elliott; Crystal Motley; Dennis Owens; Dereck Dempsey; Carrie Antrapp; Wilbur Bartholomew; Dick Veit; and Annette Skeen. They were listed as plaintiffs individually and as representatives of all Yuba County homeless whose structures and personal belongings have been or will be seized and destroyed by employees of the defendants with little or no effective notice. Defendants named in the suit include the city of Marysville; Yuba County; Yuba County Water Agency; Marysville Mayor Ricky Samayoa; City Council members Dale Whitmore and Chris Pedigo (who was listed on the complaint as Don Pettigo); City Attorney Brant Bordsen (listed in the complaint as Brent); Marysville Police Chief Chris Sachs; H&H Trenching Company; Yuba County Code Enforcement Director Jeremy Strang; and Yuba County Code Enforcement officers Chris Monaco and Tracey Clark. In 2016, it was alleged, hundreds of homeless people were "forcibly removed" from a number of homeless encampments and their property seized or destroyed when the city and county cleared out and cleaned up the areas with bulldozers and dump trucks. The suit called it "state-created danger" of exiling the homeless further into the backroads and wilds of Yuba County, risking cold, hunger and physical injury. The suit also alleges that it was common practice for Marysville police to "either suggest, order, and/or physically transport people . . . to Hollywood Trailer Park and other encampments" and in doing so, defendants acted like owners or de facto custodians over the camps. In April 2016, city officials posted 35-day eviction notices in the former Hollywood Trailer Park and Horseshoe area, and cleaned out the encampments that fall. Most people who left Hollywood simply moved across town to the "Jungle" or "Thorntree" encampments, according to Appeal-Democrat archives. In 2017, work focused on Thorntree, southeast of Jack Slough, along the Feather River near 14th Street and Ellis Lake Drive. The city designated two respite sites -- one behind Juvenile Hall on the other side of the levee, and the other on the south end of town west of the railroad crossing -- where people must alternate locations each day. The cleanups of the encampments stemmed from health, safety and environmental concerns, officials had said. They said the homeless were informed of the approaching cleanup, as well as available services, according to archives. The suit demands a jury trial and seeks a temporary restraining order and injunction against the city and county, damages, attorney fees and other relief. Though a specific monetary amount is not listed, Prince said in an email it is seeking "millions of dollars." Yuba County spokesman Russ Brown, and Marysville Police Chief Chris Sachs said they do not comment on pending litigation. Marysville City Manager Marti Brown said the city does not have a comment at this time. Yuba County Water Agency Communications Manager DeDe Cordell said the agency hasn't had the chance to review the suit, and can't address it at this time. A group of around 30 people marched from Washington Square Park to Marysville City Hall then the Yuba County Government Center on Oct. 15 wearing yellow California Homeless Union T-shirts. Butcher addressed the group, saying the city and county have "got to stop hurting my people." Her partner, Bryan Brown, said this case would set a precedent. Earlier this year, he filed a federal lawsuit against Marysville also in connection with the 2016 clearing out of encampments. In 2017, he sued Yuba County for property lost in fall 2016. Mr. Prince has filed similar cases involving homeless in Salinas. He told the group on Oct. 15 that the homeless aren't looking for charity, but solidarity. He also referenced 14Forward, temporary emergency housing on 14th Street. "Tuff Sheds are for tools, not human beings," Mr. Prince said. [GN] MASSACHUSETTS INSTITUTE: Judge Certifies Class of Employees ----------------------------------------------------------- Robert Kahn, writing for Courthouse News Service, reported that a federal judge certified a class of employees who claim that the Massachusetts Institute of Technology charged excessive fees and made poor investments in their retirement plan. MASSACHUSETTS: Gets Favorable Ruling in Homeless Class Action ------------------------------------------------------------- Christian M. Wade, writing for The Salem News, reports that the state's highest court has buoyed Gov. Charlie Baker's effort to reduce the use of hotel rooms to shelter homeless families by tossing out a class-action lawsuit by a group of individuals who say the program is illegal. In a decision, the Supreme Judicial Court overturned a Suffolk Superior Court order that temporarily blocked efforts to move homeless families out of hotels. Attorney Ruth Bourquin, who represented several families on behalf of the American Civil Liberties Union of Massachusetts, argued that the state violates the federal Americans with Disabilities Act and its own right-to-shelter law by eliminating the placements. Ms. Bourquin said the high court's ruling is a mixed bag because it at least acknowledges that hotels and motels can provide reasonable shelter for families with disabilities "in appropriate cases." The Baker administration has expanded the number of shelters to reduce the use of hotels and motels for the homeless, though it says they're still needed as a "safety valve." A statement released by the state Department of Housing and Economic Development on Oct. 15 said the SJC's ruling "validates the department's efforts to work closely with individual families to best meet their needs." "The administration believes homelessness is a human tragedy and that sheltering homeless families in motel rooms is the most disruptive and least effective way of meeting this tragedy," the statement read. Last year, Suffolk Superior Court Judge Douglas H. Wilkins ruled that efforts to move hundreds of families from hotels and motels into shelters and permanent housing was too disruptive, especially for people with disabilities. He ordered the state to house families with disabilities in a hotel if shelters couldn't accommodate their needs. Baker, a Swampscott Republican, had vowed to reduce the number of homeless families staying in motels to zero by the end of his first term in office. To that aim, his administration has added nearly 1,700 family housing units over the last five years as part of a broader effort to reduce homelessness. It has also funded programs that help families at risk of becoming homeless get child care, transportation and job training. When Baker took office in January 2015, about 1,500 families were living in hotels, at a cost of about $50 million a year. As of Oct. 15, 38 families were staying in one Waltham hotel, according to the Office of Housing and Community Development. The practice of lodging families in hotels dates to the late 1990s and was revived by former Gov. Deval Patrick in 2011 as a path out of homelessness for families with school-age children. The program was supposed to be temporary. But the policy led to friction between the state and city and town officials who complained about the burden on schools and local services. At one point, three hotels in Danvers housed 8 percent of the state's homeless population. State officials point out that Massachusetts, as the only "right-to-shelter" state, is required to provide temporary housing for homeless families even when its nearly 2,000 beds at permanent shelters are taken, as they are most days. On any given day, the state shelters an average of 3,500 families, costing about $180 million a year, according to budget figures. To qualify for temporary housing, a family's income must be close to or below the federal poverty level. Its homelessness must stem from a natural disaster or illegal eviction; a family member must be a victim of domestic violence; or its members must face health and safety risks in shelters. The law requires homeless families to be housed within 20 miles of their last address, and the state must attempt to keep children in housing close to the school district in which they were previously enrolled. Family members with disabilities must have proper accommodations, such as wheelchair accessibility. "Just reducing hotel usage doesn't resolve the issue of homelessness," said Kelly Turley, associate director of the Massachusetts Coalition for the Homeless. "Right now, the capacity of shelters doesn't meet the demand for families that have disabilities but also those that are being placed far from their home communities, schools and support network." [GN] MCKESSON CORP: Evanston Police Fund Files Securities Class Action ------------------------------------------------------------------ Evanston Police Pension Fund, individually and on behalf of all others similarly situated v. McKesson Corporation, John H. Hammergren, and James Beer, Case No. 3:18-cv-06525 (N.D. Calif., October 25, 2018), is brought against the Defendants for violations of the Securities Exchange Act of 1934. This is a class action on behalf of persons and entities that purchased or acquired McKesson common stock between October 24, 2013 and January 25, 2017, inclusive. The Plaintiff alleges that throughout the Class Period, Defendants participated in a price-fixing and anticompetitive scheme in the sale and distribution of generic pharmaceutical drugs with manufacturers and other wholesalers. Specifically, the Defendants made false and/or misleading statements and/or failed to disclose that: (i) McKesson and several of its industry peers colluded to fix the price of certain generic drugs; (ii) the collusive conduct constituted a violation of federal antitrust laws; (iii) consequently, McKesson’s revenues during the Class Period were, in part, the result of illegal conduct and were therefore unsustainable; (iv) McKesson lacked effective internal controls over financial reporting; and (v) as a result, McKesson’s public statements were materially false and misleading at all relevant times. The Plaintiff Evanston Police Pension Fund provides and distributes pension funds for retired police officers of the city of Evanston, Illinois as well as the families of deceased police officers. The Defendant McKesson delivers pharmaceutical and medical products and business services to retail pharmacies and institutional healthcare providers such as hospitals and health systems throughout North America and internationally. The Defendant McKesson is incorporated in Delaware and its corporate headquarters are in San Francisco, California. McKesson’s common stock trades on the New York Stock Exchange under the ticker symbol "MCK." The Individual Defendants are officers of McKesson. [BN] The Plaintiff is represented by: Lesley Elizabeth Weaver, Esq. BLEICHMAR FONTI & AULD LLP 555 12th Street, Suite 1600 Oakland, CA 94607 Tel: (415) 445-4003 Fax: (415) 445-4020 E-mail: lweaver@bfalaw.com MIDLAND CREDIT: Eleventh Circuit Appeal Filed in Trichell Suit -------------------------------------------------------------- Plaintiff John Trichell filed an appeal from a court ruling in his lawsuit styled John Trichell v. Midland Credit Management, Inc., et al., Case No. 4:18-cv-00132-ACA, in the U.S. District Court for the Northern District of Alabama. As reported in the Class Action Reporter on Oct. 15, 2018, Judge Annemarie Carney Axon granted the Defendants' motion to dismiss the case. Mr. Trichell filed the putative class action suit on behalf of himself and others similarly situated, naming as the Defendants two debt collectors: Midland Credit Management, Inc. and its sister company Midland Funding, LLC. He alleges that the Defendants violated the Fair Debt Collection Practices Act by sending deceptive or misleading debt collection letters seeking repayment of legally unenforceable debts. The appellate case is captioned as John Trichell v. Midland Credit Management, Inc., et al., Case No. 18-14144, in the United States Court of Appeals for the Eleventh Circuit. The briefing schedule in the Appellate Case is set as follows: -- The appellant's brief is due on or before November 7, 2018; and -- The appendix is due no later than 7 days from the filing of the appellant's brief.[BN] Plaintiff-Appellant JOHN TRICHELL, Individually and on behalf of all others similarly situated, is represented by: David J. Philipps, Esq. PHILIPPS & PHILIPPS, LTD. 9760 S Roberts Rd., Suite 1 Palos Hills, IL 60465 Telephone: (708) 974-2900 E-mail: davephilipps@aol.com Defendants-Appellees MIDLAND CREDIT MANAGEMENT, INC., A Kansas Corporation, and MIDLAND FUNDING, LLC, A Delaware Limited Company, are represented by: Chase T. Espy, Esq. Jason Brent Tompkins, Esq. BALCH & BINGHAM, LLP 1901 6th Avenue N, Suite 1500 PO Box 306 Birmingham, AL 35203 Telephone: (205) 251-8100 E-mail: cespy@balch.com jtompkins@balch.com MISSOURI: Ordered to Give Juvenile Lifers Parole Chance ------------------------------------------------------- The Associated Press reports that a federal judge has ordered Missouri to develop a plan to provide inmates who were sentenced to life in prison without the possibility of parole for crimes committed as minors with "a meaningful and realistic opportunity" for release, finding the state's current system unfair. U.S. District Judge Nanette K. Laughrey issued her order on Oct. 12 and gave state officials 60 days in which to submit their plan, the St. Louis Post-Dispatch reported. The order came as part of a class-action lawsuit filed on behalf of four inmates who received such sentences and who were later denied the possibility of parole during hearings. Roderick & Solange MacArthur Justice Center of St. Louis, which represents the inmates, said in a news release that the ruling could affect more than 90 Missouri inmates, and that other inmates could join the suit. In 2012, the U.S. Supreme Court ruled that mandatory life sentences without the possibility of parole for crimes committed as juveniles were unconstitutional. Four years later, Missouri enacted a law allowing inmates who received such sentences as juveniles to have parole hearings. "The U.S. Supreme Court has made clear that individuals who commit crimes as juveniles must be provided a realistic opportunity for release from prison based on demonstrated rehabilitation," Amy Breihan, the center's director, said in a news release. The lawsuit contends that the parole hearings have been stacked against the prisoners. The judge noted that state officials won't let inmates view their parole files. The inmate can only have one attorney or delegate, who can't take notes and can only discuss the inmate's transition to the community. Victims may be accompanied by multiple supporters and get to speak first for as long as they want. Prosecutors, who also can speak for as long as they wish, are free to present arguments and unproven theories regarding the crimes, the judge wrote. Judge Laughrey wrote that the state needs to come up with revised policies, procedures and customs that will ensure that inmates who committed crimes as juveniles have a meaningful and realistic opportunity for release based on demonstrated maturity and rehabilitation. The ruling applies to inmates who already had unsuccessful parole hearings. [GN] NAVIGATORS GROUP: Faces Class Action Over Disclosure Violations --------------------------------------------------------------- Vince Sullivan, writing for Law360, reports that a shareholder of The Navigators Group Inc. alleges in a Delaware federal court suit filed on Oct. 15 that the insurance company and its directors omitted important information from a proxy statement. Rigrodsky & Long, P.A. on Oct. 17 disclosed that it is investigating potential legal claims against the board of directors of The Navigators Group, Inc. ("Navigators" or the "Company") (NASDAQ GS: NAVG) regarding possible breaches of fiduciary duties and other violations of law related to the Company's entry into an agreement to be acquired by The Hartford Financial Services Group, Inc. ("Hartford") (NYSE: HIG) in a transaction valued at approximately $2.1 billion. Under the terms of the agreement, shareholders of Navigators will receive $70.00 in cash for each share of Navigators common stock. If you own common stock of Navigators and purchased any shares before August 22, 2018, if you would like to learn more about this investigation, or if you have any questions concerning this announcement or your rights or interests, please contact Seth D. Rigrodsky or Gina M. Serra 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. Rigrodsky & Long, P.A., with offices in Wilmington, Delaware, Garden City, New York, and San Francisco, California, has recovered hundreds of millions of dollars on behalf of investors and achieved substantial corporate governance reforms in numerous cases nationwide, including federal securities fraud actions, shareholder class actions, and shareholder derivative actions. [GN] NESTLE USA: Must Face Child Slave Labor Class Action, Court Rules ----------------------------------------------------------------- Helen Christophi, writing for Courthouse News Service, reported that Nestle and Cargill must face claims they approved the use of child slaves on Ivory Coast plantations and bribed slave masters to get cheap cocoa, a panel of the Ninth Circuit ruled on Oct. 23. Reversing a Los Angeles federal judge's dismissal of a proposed class action brought by six anonymous plaintiffs who were forced to work as slaves on Ivory Coast cocoa plantations, the unanimous three-judge panel ruled the plaintiffs' claims for aiding and abetting slavery abroad may be adjudicated in the United States under the Alien Tort Statute (ATS) if the challenged conduct occurred in the United States. "[T]he allegations paint a picture of overseas slave labor that defendants perpetuated from headquarters in the United States," Senior U.S. Circuit Judge Dorothy Nelson wrote for the panel, referring to allegations the defendants gave slave masters personal spending money despite their use of child slaves. "We thus hold that [the] foregoing narrow set of domestic conduct is relevant to the ATS's focus." The plaintiffs, identified in the lawsuit only as John Doe, were kidnapped from Mali as children in the 1990s and forced to work on Ivory Coast cocoa plantations for up to 14 hours per day, six days per week. They say they were given only scraps of food to eat and beaten and whipped with tree branches. Children who tried to escape were forced to drink urine or had their feet cut open and pepper rubbed into the wounds, they say. They also claim representatives from Nestle and Cargill visited the farms several times each year and knew farmers used child slave labor. U.S. District Judge Steven Wilson dismissed the case in March 2017, finding the plaintiffs hadn't shown sufficient domestic conduct to sue under the Alien Tort Statute. He found the provision of spending money, along with advance payments, equipment and training, and exclusive purchasing deals were "activities that ordinary international businesses engage in." But Judge Nelson called the money "akin to ‘kickbacks'" under Mastafa v. Chevron Corp., a 2014 decision by the Second Circuit, and "outside the ordinary business contract and given with the purpose to maintain ongoing relations with the farms so that defendants could continue receiving cocoa at a price that would not be obtainable without employing child slave labor." Judge Nelson also noted the companies' employees routinely inspected the plantations and reported back to headquarters in the United States, where financing decisions originated. The panel ordered the plaintiffs to drop the defendants' foreign parent companies from the suit because they can't be sued under the Alien Tort Statute in light of the Supreme Court's decision earlier this year in Jesner v. Arab Bank, and to specify which domestic company is potentially liable for what culpable conduct. "We are mindful that this case has lingered for over a decade, and that delay does not serve the interests of any party," Nelson wrote of the remand. "But we cannot conclude that amendment would be futile." Plaintiffs' attorney Paul Hoffman, of Schonbrun Seplow Harris & Hoffman in Los Angeles, agreed with Nelson about the delay. "The former child slaves have waited too long for justice in this case," Mr. Hoffman said by email, but added his clients were pleased with the panel's decision. Wilson first dismissed the case in 2010, reasoning a corporation couldn't be sued under the Alien Tort Statute. In 2014, a divided Ninth Circuit reversed in part and held the violation of universal norms may be a basis for an Alien Tort Statute claim against a corporation. The ruling created a circuit split between the Fourth and Ninth Circuits and the Second and Fifth Circuits. A year later, the Ninth Circuit denied en banc review over the dissent of U.S. Circuit Judge Carlos Bea and seven other judges, who accused their colleagues of "substitut[ing] sympathy for legal analysis." The Supreme Court also denied review. U.S. Circuit Judge Morgan Christen and U.S. District Judge Edward Shea, sitting by designation from the Eastern District of Washington, joined Nelson on the panel. Nestle USA, represented by Theodore Boutrous Jr. of Gibson, Dunn & Crutcher in Los Angeles, says it may appeal yet again to the Supreme Court. "Plaintiffs' counsel should not be given a fourth opportunity to try to manufacture a case against Nestle USA after having failed to do so for more than a decade," the company said in an emailed statement. "Regrettably, in bringing such lawsuits, the plaintiffs' class action lawyers are targeting the very organizations trying to fight forced labor," the company said, adding, "Forced child labor is unacceptable and has no place in our supply chain. We have explicit policies against it and are working with other stakeholders to combat this global social problem." Cargill also says it may fight the decision. "We are disappointed the Ninth Circuit rejected the district court's well-reasoned dismissal of the plaintiffs' claims, and intend to consider all legal options, including appeal, to continue to defend against these unproven allegations," the company said in an emailed statement. "We continue to strongly refute the unsubstantiated claims, as we do not tolerate the use of human trafficking, forced labor or child labor in our operations or supply chains." Andrew Pincus of Mayer Brown in Washington represents Cargill. He had no immediate comment on Oct. 23. NORTHLAND GROUP: Fleming Suit Alleges FDCPA Violation ----------------------------------------------------- Thomas Fleming, on behalf of himself and all others similarly situated v. Northland Group, LLC, now known as Radius Global Solutions, LLC and John Does, Case No. 1:18-cv-01700 (E.D. Wis., October 25, 2018), is brought against the Defendant for violation of the Fair Debt Collection Practices Act. The Plaintiff brings this action for the illegal practices of the Defendants when attempting to collect an alleged debt from them. The Plaintiff is a resident of the City of Appleton, Outagamie County, Wisconsin. The Defendant maintains its principal place of business at 7831 Glenroy Road, Suite 250, Edina, Minnesota. The Defendant regularly engages in the collection of defaulted consumer debts. [BN] The Plaintiff is represented by: Francis R. Greene, Esq. Philip D. Stern, Esq. Andrew T. Thomasson, Esq. STERN THOMASSON LLP 150 Morris Avenue, 2nd Floor Springfield, NJ 07081 Tel: (973) 379-7500 E-mail: Philip@SternThomasson.com Andrew@SternThomasson.com Francis@SternThomasson.com NORTHROP GRUMMAN: Court to Rule on Carlson's Bid to Certify Soon ---------------------------------------------------------------- The Honorable Andrea R. Wood ruled that the Plaintiffs' motion to certify class will be issued in short order in the lawsuit entitled Alan K. Carlson, et al. v. Northrop Grumman Severance Plan, et al., Case No. 1:13-cv-02635 (N.D. Ill.). Status hearing is set for November 6, 2018, at 9:00 a.m.[CC] NORTHSHORE UNIVERSITY: Fights Antitrust Class Action ---------------------------------------------------- Dan Churney, writing for Cook County Record, reports that NorthShore University Health System wants a judge to strip the class-action status from an antitrust lawsuit against the hospital chain, which alleges NorthShore's acquisition of a suburban hospital rubbed out competition and jacked up prices for patients, saying the sole remaining class representative has no standing to push the suit, because he suffered no injury. On Oct. 10 in Chicago federal court, Evanston-based NorthShore filed a motion that asked Judge Edmond Chang to decertify the suit's class action status, which had been granted in December 2013. NorthShore, which already had hospitals in Evanston and Glenbrook, merged in 2000 with Highland Park Hospital. In 2007, the Federal Trade Commission ruled the addition of Highland Park breached antitrust law by eliminating competition in that region, allowing NorthShore to sharply raise prices. NorthShore has since also acquired Skokie Hospital. Soon after the FTC ruling in 2007, the suit was lodged against NorthShore, with plaintiffs alleging patients and insurers were forced to pay more than they would have if market competition had been maintained. This alleged price increase came despite NorthShore's promise the merger would benefit consumers, managed care organizations and communities served by the hospitals, the suit said. NorthShore has unsuccessfully tried several times to have the case thrown out, but has succeeded in having several class representative eliminated, because they were not directly affected by NorthShore's alleged wrongdoing. NorthShore is now aiming at the last remaining class representative, David Freedman, alleging he is "fatally flawed" like the others. Mr. Freedman was hit by a car in April 2013 and treated at NorthShore's hospitals in Highland Park and Evanston, but said the charges were too high, according to court papers. However, Mr. Freedman negotiated a discount for part of the bill that "more than wiped out any alleged overcharge," according to NorthShore. As a consequence, Freedman suffered no alleged injury to serve as a representative of the class or to even have a claim, in NorthShore's view. Without Freedman having a claim, the class has no claim, NorthShore asserted. NorthShore presented other arguments why Freedman is not a qualified representative. Mr. Freedman sued the party he alleged hit him with the car, which ended in settlement. Mr. Freedman's attorneys in that suit, Kupets & DeCaro, of Chicago, negotiated another discount with NorthShore and themselves paid the remainder of Mr. Freedman's bill, according to court papers. Kupets & DeCaro recouped the payment through its cut of Freedman's settlement. As a result, part of Freedman's bill was covered by another party, further undercutting any alleged injury Freedman suffered. In addition, Mr. Freedman's insurer failed to renegotiate with NorthShore pursuant to the FTC's 2008 order that entitled insurers to such renegotiation of bills, NorthShore claimed. The second discount arranged through and paid by Kupets & DeCaro also disqualifies Freedman on grounds he is not typical of most class members, who only experienced one discount and directly paid NorthShore, NorthShore argued. Plaintiffs included Amit Berkowitz, Steven J. Messner, Henry W. Lahmeyer and Painters District Council No. 30 Health and Welfare Fund. Plaintiffs are represented by the Chicago firms of Wolf Haldenstein Adler Freeman & Herz, Miller Law and Grant Eisenhofer, as well as by lawyers David Balto, of Washington, D.C., and Mary Jane Fait, of Chicago. Mr. Freedman is representing himself. NorthShore is defended by Winston & Strawn, of Chicago. [GN] PAULS VALLEY: Employees Mull Class Action Over Job Loss ------------------------------------------------------- Sarah Stewart, writing for Kfor.com, reports that Pauls Valley City Manager James Frizell went to Pauls Valley General Hospital on Oct. 15 to try and answer angry questions from employees who found out on Oct. 12 they no longer had jobs. The hospital authority, which is made up of the city council members, voted late on Oct. 12 to close the hospital's doors, saying there is no money left to keep it open. "We couldn't pay bills. We couldn't meet the demands any more. That's where we're at," Mr. Frizell told the employees gathered in a conference room. "There's no money to pay. I mean there is no money." "Did you get a paycheck?" shouted someone in the crowd. "Because, if you got a paycheck, we should all get a paycheck, also." Employees taxes have not paid, and their insurance premiums have not been paid for months either, even though the money has been deducted from recent paychecks. "I don't have PTOs. I don't have freaking insurance that I paid for, and I don't have my short-term disability. You gonna tell me what I'm supposed to do?" asked another employee. "Ma'am, I don't have an answer for that," Mr. Frizell responded. In July, Alliance Health stepped in to try and save the hospital but they said part of the problem is the hospital's accounts receivable money can't be touched. It's tied up in litigation with the previous management company. The CEO is calling on the attorney general to investigate. "Until the state of Oklahoma steps up and starts licensing management companies like mine, it's going to continue," said CEO of Alliance Health Frank Avignone. Mr. Avignone also said he's hearing reports of a death that could be partially attributed to the abrupt closure of the hospital. "My understanding was there was an elderly person here in town that may have suffered some sort of cardiac event, be it a heart attack, what have you. They were not able to raze EMS, and they had to go to Purcell and, by the time they did get to Purcell hospital, the patient had unfortunately expired," he said. And, Mr. Avignone said that trend will likely continue. But, for now, he's also worried about his former employees. "We have employees who can't pay their electric bill, can't pay their car payment, can't feed their children," he said. "It's been very, very stressful for me and my family," said Melody Williams, who was employed as a nurse at Pauls Valley General Hospital. Ms. Williams was recently diagnosed with an aggressive form of breast cancer. Ten days before her double mastectomy a couple weeks ago, she discovered she had no insurance because the premiums had not been paid. "I'm not in any physical shape to go to work. So, I don't know what I'm supposed to do," she said. Several employees talked about filing a class action lawsuit. They plan to show up at the hospital authority's meeting. [GN] PFIZER INC: Settles Deceptive Co-Pay Coupon Class Action -------------------------------------------------------- Shannon M. McNulty, Esq., of Clifford Law Offices, in an article for The National Law Review, reports that Pfizer Inc. settled a case brought by New York's attorney general based on the world's largest pharmaceutical company misleading consumers with its drug co-payment coupon program. The global giant initiated a coupon program that led consumers into thinking they would be paying far less to fill prescriptions but then they ended up having to pay more from 2015-18. Pfizer agreed to pay $500,000 in fines and costs and to issue more than $200,000 in new restitution coupons to help consumers struggling with health insurance plans that carry high co-payments and deductibles for prescriptions. Pfizer's coupons would say in large print that consumers would "PAY NO MORE THAN" $15, $20 or $25 for certain drugs like Estring for vaginal atrophy and Flector patches for acute pain. New York's Attorney General Barbara Underwood said the practice was deceptive because the true price of the drugs was buried in fine print. Pfizer now changed its text to read that consumers could "pay as little as" certain specified amounts. Reimbursements would go to New York consumers who used the coupons within three years of Sept. 21, 2018, and paid more than $15 to $25 out of pocket, but the New York-based company did not admit or deny liability. [GN] POLARITYTE INC: Shareholders File Securities Class Action --------------------------------------------------------- Shareholder rights law firm Robbins Arroyo LLP on Oct. 15 disclosed that purchasers of PolarityTE, Inc. (NasdaqCM: PTE) have filed a class action complaint against the company's officers and directors for alleged violations of the Securities Exchange Act of 1934 between March 31, 2017 and June 22, 2018. PolarityTE operates as a commercial-stage biotechnology and regenerative biomaterials company in the United States. View this information on the law firm's Shareholder Rights Blog: https://www.robbinsarroyo.com/polarityte-inc-oct-2018/ PolarityTE Accused of Lying About the Status of Its Patent According to the complaint, on April 7, 2017, PolarityTE announced that the company bought Dr. Denver Lough's pending Patent #14/954,335 (the "Patent") in exchange for over $104 million of PolarityTE stock. Although Dr. Lough received a notice of non-final rejection of the Patent on March 31, 2017, PolarityTE never disclosed this fact to investors, and even represented the Patent was already patented. It therefore came as a surprise to investors when Citron Research published a report on June 25, 2018, revealing that PolarityTE failed to disclose that the U.S. Patent Trademark Office had issued a final rejection of the Patent on June 4, 2018. On this news, PolarityTE's stock plunged more than 27% to close at $28.14 per share on June 25, 2018, and currently trades at just about half that price. PolarityTE 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] POWERCOR: Seeks Dismissal of St. Patrick's Day Fire Class Action ---------------------------------------------------------------- Andrew Thomson, writing for The Standard, reports that Powercor has filed an application to dismiss the Supreme Court class action relating to the Gazette bushfire on St Patrick's Day this year. [GN] PREMIER MORTGAGE: Fabricant Files Suit for Invasion of Privacy -------------------------------------------------------------- Terry Fabricant, individually and on behalf of all others similarly situated v. Premier Mortgage Resources, LLC and Does 1 through 10 inclusive, Case No. 2:18-cv-09165 (C.D. Calif., October 25, 2018), seeks damages against the Defendants for violations of the Telephone Consumer Protection Act. The Plaintiff brings this action over the illegal actions of the Defendant, in negligently, knowingly, and willfully contacting the Plaintiff on Plaintiff's cellular telephone in violation of the TCPA, specifically the National Do-Not-Call provisions, thereby invading the Plaintiff's privacy and causing him to incur unnecessary and unwanted expenses. The Plaintiff Terry Fabricant is a resident Winnetka, California. The Defendant Premier Mortgage Resources, LLC is a housing mortgage lending company. [BN] The Plaintiff is represented by: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. Meghan E. George, Esq. Tom E. Wheeler, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St., Suite 780 Woodland Hills, CA 91367 Tel: (323) 306-4234 Fax: (866) 633-0228 E-mail: tfriedman@toddflaw.com abacon@toddflaw.com mgeorge@toddflaw.com twheeler@toddflaw.com PUFFY LLC: Diamond Suit Alleges TCPA Violation ---------------------------------------------- Greg Diamond, individually and on behalf of all others similarly situated v. Puffy, LLC, Case No. 9:18-cv-81457 (S.D. Fla., October 26, 2018), is brought against the Defendant for violation of the Telephone Consumer Protection Act. The Plaintiff alleges that to promote its services, the Defendant engages in unsolicited marketing, harming thousands of consumers in the process. The Plaintiff is a resident of Palm Beach County, Florida. The Defendant is an online vendor of luxury mattresses, pillows, and bedframes. The Defendant is a California Limited Liability Company whose principal office is located in Los Angeles, California. Defendant directs, markets, and provides its business activities throughout the State of Florida. [BN] The Plaintiff is represented by: Andrew J. Shamis, Esq. SHAMIS & GENTILE, P.A. 14 NE 1st Avenue, Suite 1205 Miami, FL 33132 Tel: (305) 479-2299 E-mail: ashamis@shamisgentile.com - and - Scott Edelsberg, Esq. EDELSBERG LAW, PA 19495 Biscayne Blvd #607 Aventura, FL 33180 Tel: (305) 975-3320 E-mail: scott@edelsberglaw.com QED INTERNATIONAL: Felder Suit Alleges FLSA Violation ----------------------------------------------------- Larry Felder, individually and for others similarly situated v. QED International, LLC, Case No. 4:18-cv-04081 (S.D. Tex., October 26, 2018), seeks to recover unpaid overtime and other damages under the Fair Labor Standards Act. The Defendant allegedly failed to pay the Plaintiff and other workers overtime pay as required by the FLSA. The Plaintiff worked as a commissioning manager for the Defendant. The Defendant is an engineering firm providing design, consulting, construction, and management services throughout the country. It is headquartered in Houston, Texas. [BN] The Plaintiff is represented by: Michael A. Josephson, Esq. Andrew Dunlap, Esq. JOSEPHSON DUNLAP 11 Greenway Plaza, Suite 3050 Houston, TX 77046 Tel: (713) 352-1100 Fax: (713) 352-3300 E-mail: mjosephson@mybackwages.com adunlap@mybackwages.com - and - Richard J. (Rex) Burch, Esq. BRUCKNER BURCH, PLLC 8 Greenway Plaza, Suite 1500 Houston, TX 77046 Tel: (713) 877-8788 Fax: (713) 877-8065 E-mail: rburch@brucknerburch.com QUALCOMM: Challenges Cellphone Buyers' Class Action --------------------------------------------------- Matthew Perlman, writing for Law360, report that Qualcomm has asked the Ninth Circuit to review the certification of a class estimated to cover 250 million cellphone buyers who allegedly paid overages stemming from the chipmaker's anti-competitive licensing practices. [GN] SA GEAR: Voluntary Dismissal of Williamson Suit Denied ------------------------------------------------------ Judge Staci M. Yandle of the U.S. District Court for the Southern District of Illinois denied the Plaintiffs' motion to dismiss pursuant to Rule 41(a)(2) the case, TEVE WILLIAMSON and RHONDA CHRISTINE LEMASTER, On Behalf of Themselves and All Others Similarly Situated, Plaintiffs, v. S.A. GEAR COMPANY, INC., AUTOZONE, INC., AUTOZONE PARTS, INC., and AUTOZONE STORES, INC., Defendants, Case No. 15-CV-365-SMY-DGW (S.D. Ill.). Plaintiffs Williamson and LeMaster, individually and on behalf of all similarly situated persons, filed a 15-Count Amended Class Action Complaint against the Defendants, alleging that the Defendants manufactured, distributed, advertised, and/or sold defective timing chain tensioners. After three years of litigation, the Plaintiffs now move to voluntarily dismiss the action without prejudice pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure. The Defendants filed responses in opposition. Judge Yandle finds that the Defendants' efforts and expenses to date militate against dismissal without prejudice when discovery has already been well underway. The case is over three years old, and the Defendants have expended an enormous amount of time and resources defending against the Plaintiff's claims and request for class certification. The parties have engaged in extensive discovery, including voluminous written discovery, expert witness disclosures and depositions, depositions of the Defendants' corporate representative, and depositions of both the Plaintiffs. The parties also submitted extensive briefing regarding class certification and Daubert motions. Significantly, only after the denial of the Plaintiffs' motion for class certification and the Plaintiffs' unsuccessful interlocutory appeal to the Seventh Circuit have the Plaintiffs moved to dismiss their case without prejudice. But, unfavorable rulings are not an acceptable basis to grant a voluntary dismissal or to facilitate the search for a perceivably more favorable state judicial climate. Finally, the Plaintiffs' primary argument for dismissal without prejudice does not ring true, and the Judge suspects that their true motive is to avoid the impending motions for summary judgment. While the Plaintiffs assert that they should be permitted to dismiss the action without prejudice because merit discovery is still necessary, there is significant overlap between class certification and merit discovery in the case. To the extent that the Plaintiffs actually require additional discovery to respond to the Defendants' summary judgment motions, the Judge will refer the matter to Magistrate Judge Wilkerson for entry of a revised Scheduling Order. For the foregoing reasons, the Judge holds that the voluntary dismissal without prejudice is unwarranted. Accordingly, she denied the Plaintiffs' motion to dismiss pursuant to Rule 41(a)(2). A full-text copy of the Court's Sept. 26, 2018 Memorandum and Order is available at https://is.gd/Qouikm from Leagle.com. Steve Williamson, On Behalf of Himself and All Others Similarly Situated & Rhonda Christine LeMaster, Plaintiffs, represented by Gregory J. Pals -- greg@thedriscollfirm.com -- Driscoll Firm, P.C. & John J. Driscoll -- john@thedriscollfirm.com -- Driscoll Firm, P.C. S.A. Gear Company, Inc., Defendant, represented by Jonathan H. Garside -- jgarside@greensfelder.com -- Greensfelder, Hemker & Gale, P.C. AutoZone, Inc., AutoZone Stores, Inc. & AutoZone Parts, Inc., Defendants, represented by Jonathan D. Jay -- jjay@hjlawfirm.com -- Hellmuth & Johnson, PLLC, Anne T. Regan -- aregan@hjlawfirm.com -- Hellmuth & Johnson, PLLC &Michael R. Cashman -- mcashman@hjlawfirm.com -- Hellmuth & Johnson, PLLC. SAMSUNG ELECTRONICS: Schilling Sues Over Defective Phone -------------------------------------------------------- Anna Schilling, on behalf of herself and all others similarly situated v. Samsung Electronics America, Inc. and Samsung Electronics Co., Ltd. and Does 1-100, Case No. 3:18-cv-02297 (N.D. Tex., August 29, 2018), is brought against the Defendants for strict product liability, negligence, breach of implied warranty, negligent product liability, failure to warn and negligent misrepresentation for the defective Samsung Galaxy Note 7 cell phone she purchased. The Plaintiff is a resident of Rockwall, Texas. On August 24, 2016 the Plaintiff purchased a Samsung Galaxy Note 7 cell phone from Best Buy in Texas. The Defendants are in the business of manufacturing, designing, testing, assembling, supplying, selling, importing, and distributing electronics, including the "Samsung Galaxy Note 7" cell phone and its component parts that are the subject of this lawsuit. The Defendants are registered to do business in Texas, and transacted a substantial amount of business throughout the United States, including Rockwall, Texas. [BN] The Plaintiff is represented by: Frank L. Branson, Esq. Eugene A. "Chip" Broker, Jr., Esq. LAW OFFICES OF FRANK L. BRANSON 4514 Cole Avenue, Suite 1800 Dallas, TX 75205 Tel: (214) 522-0200 Fax: (214) 521-5485 SENSA PRODUCTS: Judge Denies Certification Without Prejudice ------------------------------------------------------------ Malcolm Spicer, writing for Rose Sheet, reports that a federal judge denied certification without prejudice, allowing plaintiff's attorneys to file an amended complaint with arguments and evidence countering reasons for denying certification as a class. Two other complaints were resolved in settlements following FTC's settlement with Sensa Products and its parent firm in 2014 for $26.5m. [GN] SERVICOM LLC: Did Not Provide Proper Termination Notice, Says Suit ------------------------------------------------------------------ Debra Brown and Michelle Curtis, for themselves and all others similarly situated, Plaintiffs, v. Servicom, LLC and JNET Communications, LLC, Defendants, Case No. 18-cv-50323, (N.D. Ill., October 2, 2018), seeks to collect unpaid wages and benefits for sixty calendar days pursuant to the Workers Adjustment and Retraining Notification Act of 1988. Servicom provides next generation sales, customer care and billing services. Defendants failed to provide the Plaintiffs at least 60 days' advance notice of their termination, says the complaint. On or about September 29, 2018, the Defendants' Rockford Facility and Machesney Park Facility was unexpectedly shut down. [BN] Plaintiff is represented by: Gary Martoccio, Esq. SPIELBERGER LAW GROUP 202 S. Hoover Blvd. Tampa, FL 33609 Tel: (800) 965-1570 Fax: (866) 580-7499 Email: gary.martoccio@spielbergerlawgroup.com SHAW COMMUNICATIONS: Sued Over "Unlawful Pricing Scheme" -------------------------------------------------------- BIV reports that Shaw Communications Inc. and Shaw Cablesystems GP face a class action over an alleged "unlawful pricing scheme" under which the cable giant offered lower rates to Mandarin- and Cantonese-speaking customers. Martin Halliday filed a notice of civil claim under the Class Proceedings Act in BC Supreme Court on October 1 on behalf of Shaw customers "who were not the beneficiaries of the unlawful pricing scheme." Mr. Halliday claims Shaw operated the scheme through its "Multicultural Customer Care team" in the two years leading up to the lawsuit. "The defendants routinely discriminates [sic] against existing and potential customers by offering a discounted rate exclusively to individuals who communicate with Shaw in either Mandarin and/or Cantonese," the claim states. "Shaw has been providing its Chinese Medium Customers with significantly lower prices for its internet and/or cable services as compared to its customers who communicate in languages other than Mandarin or Cantonese in order to negotiate their prices." Mr. Halliday claims he called Shaw customer service this summer and a customer service employee allegedly described him the companies' "best package," which was "demonstrably worse than the pricing available to Chinese Medium Customers under the unlawful pricing scheme." "Shaw acquired additional monies from the class members as a result of unfairly and inequitably charging higher prices for same, or similar, services solely based on their choice not to speak Mandarin or Cantonese in negotiating price for services," the claim states. The class action comes a month and a half after a former employee sued Shaw for wrongful dismissal, detailing the alleged unlawful pricing scheme in her claim. Kwok Bo Daisy Halliday's claim in BC Supreme Court was filed on August 15, and both claimants are represented by Martin Sheard with Tevlin Gleadle Curtis Employment Law Strategies. (Sheard told Business in Vancouver on October 5 that he couldn't comment on either case absent instructions from his clients.) Mr. Halliday seeks class certification and damages for violations of the Business Practices and Consumer Protection Act. The allegations have not been tested or proven in court, and Shaw had not filed a response to the claim by press time. [GN] SIMM ASSOCIATES: Must Face Class Action Over Excessive Fees ----------------------------------------------------------- Nathan Hale, writing for Law360, reports that a Florida federal judge on Oct. 15 denied Simm Associates' bid to dismiss a proposed class action claiming Fair Debt Collection Practices Act violations for charging excessive fees. [GN] SMALL PLANET: Evans Sues Over Deceptive Product Labels ------------------------------------------------------ Barbara Evans, individually and on behalf of all others similarly situated v. Small Planet Foods, Inc., Case No. 1:18-cv-06009 (E.D. N.Y., October 26, 2018), is brought against the Defendant for false, unfair, deceptive and misleading representations in violation of the New York General Business Law. The Plaintiff alleges that the Defendant's products falsely convey they are made, from start to finish, from whole food ingredients -- "Food Made From Food". The Plaintiff is a citizen of Kings County, New York. The Defendant Small Planet Foods, Inc. manufactures, distributes, markets, labels and sells food bars under the LARABAR brand. [BN] The Plaintiff is represented by: Spencer Sheehan, Esq. SHEEHAN & ASSOCIATES, P.C. 891 Northern Blvd., Suite 201 Great Neck, NY 11021 Tel: (516) 303-0552 E-mail: spencer@spencersheehan.com SOUTHWEST AIRLINES: 9th Cir. Hears Argument in Class Action ----------------------------------------------------------- MetNews reports that Ninth U.S. Circuit Court of Appeals Judges A. Wallace Tashima and Mary H. Murguia are joined by Senior District Court Judge Robert Neil Chatigny of the District of Connecticut, sitting by designation, in hearing argument I a case in which the appellants seek reinstatement of their dismissed action over Southwest Airlines's policy with respect to future use of funds in payment for unused non-refundable tickets Judges of the Ninth U.S. Circuit Court of Appeals have signaled at oral argument that they have no intention of resuscitating a lawsuit against Southwest Airlines alleging that it rooks ticket-purchasers by proclaiming that if non-refundable tickets aren't used, a credit toward future bookings will be applied for up to one year, without advising, through conspicuous notice, of exceptions. The plaintiffs, attorney Jean Shrem and real estate agent Marni Fischer, both of Contra Costa County, on Oct. 2, 2015, brought a putative class action in the U.S. District Court for the Northern District of California against the airline on various theories. District Court Judge Haywood S. Gilliam Jr. whittled the case down to an action for breach of contract, then, after the plaintiffs replied, dismissed the action with prejudice. Ms. Shrem and Ms. Fischer had purchased Southwest tickets on Aug. 24, 2014, but cancelled their plans and accepted credit for future travel, with the credit expiring Aug. 23, 2015. On Feb. 21, 2015, they bought two roundtrip tickets, paying $784 and using their $16 in credit. Forfeit Declared They then cancelled the new tickets. On Sept. 15, 2015, they planned yet another trip and sought application of the credits from the cancelled tickets—$16 and $784—but were told that they had forfeited, entirely, the $800 in credits because the $16 credit had expired 23 days earlier. After suit was brought, Southwest agreed to honor the $800 credit the plaintiffs claimed; they declined the offer; Gilliam held that the matter was not moot. Southwest relied on a provision in the contract of carriage (available online) which says: "If a Ticket is purchased with multiple travel credits, the earliest expiration date will apply to the entire Ticket." Skepticism Expressed Attorney Peter Fredman presents argument to Ninth U.S. Circuit Court of Appeals. At oral argument on Oct. 11 in San Francisco, Circuit Judges A. Wallace Tashima and Mary H. Murguia provided clear signs of their rejection of contentions by the plaintiffs' attorney, Peter B. Fredman of Berkeley; Senior District Court Judge Robert Neil Chatigny of the District of Connecticut, sitting by designation, appeared to be in agreement with the regular members of the panel. "What are you saying, now?" Judge Tashima asked Mr. Fredman after he asserted that the 41-page contract would be difficult for the average traveler to comprehend, if it were even read. Was he contending, Judge Tashima asked, "[t]hat the contract shouldn't be construed to mean what it says?" Regulation Cited Mr. Fredman's position was that what mattered was the wording on the ticket. He pointed to a federal regulation (which Gilliam held was not incorporated into the contract of carriage) providing: "A carrier may not impose any terms restricting refunds of the ticket price, imposing monetary penalties on passengers, or raising the ticket price...unless the passenger receives conspicuous written notice of the salient features of those terms on or with the ticket." The lawyer maintained that language in small print on the ticket indicating that there were exceptions to the one-year availability of credits constituted "the opposite of conspicuous written notice" asserting: "It's a hidden limitation on the right to use the reusable fund." Murguia's Questioning Judge Murguia declared: "It's clear on the face of the ticket what the contract is." With apparent reference to the ticket purchased on Sept. 15, 2015, she asked: "Isn't that expiration date clearly noted on the face of the ticket, right next to the confirmation number?" Mr. Fredman agreed that it was, but insisted the customer would not understand the significance of the notation. "Why wouldn't it mean the date the ticket expires?" she asked. She went on to inquire: "What should the more conspicuous notice look like?" The lawyer replied: "It should say something like Southwest says now, which is: "'New reservations inherit the earliest expiration date from any funds applied from the old ticket. Therefore, the expiration date of your new reservation and all associated funds may be less than 12 months'—or something like that." Southwest's Attorney Dallas attorney Richard Barrett Phillips Jr., representing the Texas-based Southwest Airlines, told the judges: "It's clear on the face of the ticket what the contract is." He said the plaintiffs cited as an example of a conspicuous warning the statement in the ticket that reservations are forfeited if the passenger does not check in at least 10 minutes before boarding. That statement Mr. Phillips pointed out, is slightly above the warning on forfeiture of unused ticket funds, in the same typeface and same sized type. [GN] STATE STREET: Labaton Chastised Over $75MM Fee Request ------------------------------------------------------ Legal Newsline reports that the federal judge who unleashed a wide-ranging investigation into the fee practices of Labaton Sucharow was unimpressed by the class action firm's agreement to install an ethics monitor and revamp its rules, saying he was more concerned about getting to the bottom of misstatements Labaton and some of its co-counsel made when applying for a $75 million fee. In a lengthy and sometimes contentious hearing on Oct. 15 in Boston, U.S. District Judge Mark L. Wolf expressed lingering anger over inaccuracies in the documents and statements Labaton made to support its fee application in the $300 million settlement of foreign exchange claims against State Street Bank and Trust. He also repeatedly brought up the firm's failure to disclose a $4.1 million finder's fee it agreed to pay a lawyer who did no work in the case. The judge reminded the plaintiff lawyers in the room that he had the power to revisit the $75 million fee as well as decide how it should be divided among them. He dismissed as "enlightened self-interest" the measures Labaton agreed to in a tentative settlement with retired federal judge Gerald Rosen, the special master in charge of the investigation. "Perhaps (Labaton) can make itself a model for the profession -- that would be fine," Judge Wolf said. "I'm concerned about what was said to me and why." Judge Wolf also repeated his concern about Labaton and the Arkansas Teacher Retirement System's involvement in the State Street case, saying "in my mind Labaton is only class counsel for the purposes of administering the settlement." "The way things have evolved, I would not appoint Arkansas Teacher lead plaintiff, because of its relationship with Labaton, and I wouldn't appoint Labaton" to represent the class, he said. In a sign he is concerned about continuing improprieties with finder's fees, he ordered the firm to supply a list of contracts involving referral fees by Oct. 18, as well as any changes the firm has made to those contracts in the wake of the State Street scandal. Ted Frank, a lawyer with the Competitive Enterprise Institute who was invited to file friend-of-the-court briefs in the case, said he was worried no one is representing class members as the lawyers fight with Rosen and the court over the $75 million fee. The money legally belongs to class members until the judge makes a final decision on what the lawyers should have been paid. "There is nobody at the table in these negotiations representing the class," Mr. Frank said. "All the pushing is in one direction." Judge Wolf appointed Rosen to investigate Labaton and its co-counsel, The Thornton Law Firm and Lieff Cabraser, after the Boston Globe ran a series of stories detailing questionable practices including more than $4 million in double-billing and $400,000 in fees paid to a brother of a lead lawyer at Thornton who normally works as a public defender. Rosen began his probe by looking into the practices described in the Boston Globe articles. Only later did he learn about the finder's fee to Houston lawyer Damon Chargois, who arranged meetings between the New York law firm and politicians with influence over the Arkansas Teacher Retirement System, which served as lead plaintiff in the State Street case. Class action firms compete aggressively to sign up institutional investors as lead plaintiffs in financial lawsuits, mainly because Congress reformed securities class action laws to require judges to award control of such litigation to parties with the biggest stake in the case. Judge Wolf has raised pointed questions about how Labaton came to represent Arkansas Teachers, however. In a heated sidebar conference in May, he asked whether "all those millions of dollars stayed with Mr. Chargois," making an inference of corruption that offended Joan Lukey, a lawyer representing Labaton. The suggestion Chargois steered money to Arkansas politicians "shocks me," Ms. Lukey said at that May hearing. "If you're shocked because it occurred to me, then I've only prepared you for the shock you're going to have" when Rosen's report is made public, the judge responded. He continued along those lines on Oct. 15, repeatedly asking about emails between Labaton partner Eric Belfi and Chargois suggesting Chargois had recruited other clients for the firm, and even at one point asked whether Belfi was still employed by Labaton. (He is.) The judge also questioned the arrangement under which Labaton and Lieff Cabraser loaned staff attorneys to the Thornton firm to increase the number of billable hours Thornton could submit in the so-called lodestar report Labaton submitted to the court to justify the fees in the case. The three law firms don't have such a harmonious relationship now, with Lieff Cabraser and Thornton both objecting to paying more for the special master's investigation, which has cost $3.8 million so far and is being billed to the plaintiff firms. The judge suggested he won't rule on Labaton's tentative settlement until the other two firms have discussed their concerns with Rosen. He also reminded all the lawyers he might revisit the $75 million fee, both for the overall amount and how it is divided. "We appreciate the Court's goal of reaching a final resolution that is in the best interests of the customer class," the Labaton firm said. "We will work to address the outstanding issues raised by the Court in hopes that a final agreement can be approved soon." [GN] STITCH FIX: Dec. 10 Lead Plaintiff Motion Deadline Set ------------------------------------------------------ Federman & Sherwood on Oct. 15 disclosed that on October 11, 2018, a class action lawsuit was filed in the United States District Court for the Northern District of California against Stitch Fix, Inc. (NASDAQ: SFIX). The complaint alleges violations of federal securities laws, Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5, including allegations of issuing a series of material or false misrepresentations to the market which had the effect of artificially inflating the market price during the Class Period, which is June 8, 2018 through October 1, 2018. Plaintiff seeks to recover damages on behalf of all Stitch Fix, Inc. shareholders who purchased common stock during the Class Period and are therefore a member of the Class as described above. You may move the Court no later than Monday, December 10, 2018 to serve as a lead plaintiff for the entire Class. However, in order to do so, you must meet certain legal requirements pursuant to the Private Securities Litigation Reform Act of 1995. If you wish to discuss this action, obtain further information and participate in this or any other securities litigation, or should you have any questions or concerns regarding this notice or preservation of your rights, please contact: Robin Hester FEDERMAN & SHERWOOD 10205 North Pennsylvania Avenue Oklahoma City, OK 73120 Email to: rkh@federmanlaw.com Or, visit the firm's website at www.federmanlaw.com [GN] SUSHI 21: Bid to Preclude Witnesses at Trial in Chen Suit Denied ---------------------------------------------------------------- In the case, JUN CHEN, on behalf of himself and others similarly situated, Plaintiffs, v. SUSHI 21 NY INC., doing business as Sushi 21, and SHAN CHEN, also known as Sam Chen, Defendants, Case No. 17-CV-6153 (JGK) (OTW) (S.D. N.Y.), Magistrate Judge Ona T. Wang of the U.S. District Court for the Southern District of New York denied the Defendants' motion for preclusion of the witnesses at trial. The case was referred to the Magistrate Judge for general pretrial management, including discovery motions, non-dispositive pretrial motions, and settlement. On May 18, 2018, the Defendants filed a letter motion seeking discovery-related sanctions pursuant to Fed. R. Civ. P. 37, and the Plaintiff filed his response on May 25, 2018. The Plaintiff brings the action pursuant to the Fair Labor Standards Act and New York Labor Law, for the Defendants' alleged failure to pay the minimum wage, failure to pay the overtime premium and spread of hours pay, and for the Defendants' alleged failure to provide certain notices required by New York law. The Plaintiff claims that he was employed at Defendant Sushi 21 as a delivery person from June 1, 2015 to Oct. 6, 2016. The Defendants have apparently challenged, among other things, the length of time of the Plaintiff's employment. The Plaintiff provided Initial Disclosures pursuant to Fed. R. Civ. P. 26(a) to the Defendants on Dec. 15, 2017, in apparent compliance with Judge Koeltl's Scheduling Order of Nov. 28, 2017. The Court held discovery conferences on April 10 and May 3, 2018. On May 1, 2018, 13 days before the close of discovery, the Plaintiff provided amended Initial Disclosures that listed four new witnesses, all of whom were alleged to be witnesses to his work at Defendant Sushi 21, and none of whom had worked at Sushi 21 themselves. As a sanction for the Plaintiff's delayed and allegedly unjustified disclosure of these witnesses' identities, the Defendants seek preclusion of these witnesses at trial. They sought to depose all of these witnesses before the end of discovery and were only able to depose two out of four witnesses for a short time. One subpoenaed witness failed to appear. Although they did not attach the deposition transcript, the Defendants represent that one witness (Mr. Zheng) testified that he had been contacted by the Plaintiff's counsel as early as February or March concerning the subject matter of his potential testimony. In response, the Plaintiff's counsel suggests that they did not begin their inquiry into whether any of the Plaintiff's friends might be competent to testify to the Plaintiff's term of employment until mid-April 2018. As the Court indicated at the May 3, 2018 conference, the Plaintiff's counsel's failure to fully or timely investigate how they would prove the duration of the Plaintiff's alleged employment is not an acceptable excuse for such a delayed disclosure. Nonetheless, a sanction of preclusion is not warranted on the record before the Court at this time, the Magistrate holds. The parties have fully briefed a motion for summary judgment on another issue that is currently before Judge Koeltl that may dispose of the entire case. The Defendants' motion for summary judgment does not involve the proposed or actual testimony of any of these late disclosed witnesses; thus, the issue of whether their testimony should be precluded at trial -- or whether another remedy may be more appropriate -- may be considered after a decision on the motion for summary judgment, if such motion is denied. Accordingly, Magistrate Judge Wang denied without prejudice, as premature, the Defendants' motion for preclusion at this time. A full-text copy of the Court's Sept. 26, 2018 Opinion and Order is available at https://is.gd/7RFKEy from Leagle.com. Jun Chen, on behalf of himself and others similarly situated, Plaintiff, represented by John Troy -- johntroy@troypllc.com -- Troy Law, PLLC. Sushi 21 NY Inc., doing business as Sushi 21 & Shan Chen, also known as Sushi 21, Defendants, represented by Michael Aaron Brand, Law Offices of Vincent S. Wong & Vincent Wong -- vswlaw@gmail.com -- Vincent Wong, Law Offices. T.L. CANNON: Hicks Labor Suit Transferred to N.D.N.Y. ----------------------------------------------------- The case captioned Ashley Hicks and Kristin Raymond, on behalf of themselves and all other employees similarly situated, Plaintiffs, V. T.L. Cannon Corp., T.L. Cannon Management Corp., TLC West, LLC, TLC Central, LLC, TLC Utica, LLC, TLC North, LLC and David A. Stein, individually and as Owner and Chairman of T.L. Cannon Corp. and as Director and Chairman of T.L. Cannon Management Corp. Matthew I. Fairbairn, individually and as Owner and President of T.L. Cannon Corp. and as Director and Chief Executive Officer of T.L. Cannon Management Corp, and John A. Perry, individually and as Vice-President and Director of Operations of T.L. Cannon Corp. and as President of T.L- Cannon Management Corp., Defendants, Case No. 18-cv-00987, (W.D. N.Y., September 24, 2012), was transferred to the U.S. District Court for the Northern District of New York on October 1, 2018 under Case No. 18-cv-01177. The court granted a joint motion filed in the case to Change Venue For Purposes of Settlement. Plaintiffs had sought compensatory, declaratory and injunctive relief on behalf of current and former tipped employees of Applebee's restaurants against various owners and operators of those restaurants in New York for alleged violations of the New York Minimum Wage Act, New York Labor Law and the Fair Labor Standards Act. Wisconsin Hospitality Group operates as "Applebee's" or Applebee's Neighborhood Bar and Grill with 54 stores in New York. [BN] Plaintiffs are represented by: Frank S. Gattuso, Esq. O'HARA O'CONNELL & CIOTOLI 7207 East Genesee Street Fayetteville, NY 13066 Tel: (315) 451-3810 Fax: (315) 451-5585 Email: fsg@oharalaw.com - and - J. Nelson Thomas, Esq. THOMAS, SOLOMON LAW FIRM 693 East Avenue Rochester, NY 14607 Tel: (585) 272-0540 Fax: (585) 272-0574 Email: nthomas@theemploymentattorneys.com Defendants are represented by: Craig R. Benson, Esq. LITTLER, MENDELSON LAW FIRM - NEW YORK OFFICE 900 Third Avenue New York, NY 10022 US Tel: (212) 583-2682 Email: cbenson@littler.com - and - Jessica F. Pizzutelli, Esq. LITTLER, MENDELSON LAW FIRM - FAIRPORT NY OFFICE 375 Woodcliff Drive, 2nd Floor Fairport, NY 14450 Tel: (585) 203-3403 Email: jpizzutelli@littler.com TD AMERITRADE: Krukever Seeks to Certify Class of Accountholders ---------------------------------------------------------------- The Plaintiffs in the lawsuit captioned DIEGO KRUKEVER, KAREM SANDGARTEN and AMIR RAHIMI, individually and on behalf of all others similarly situated v. TD AMERITRADE, INC., and TD AMERITRADE FUTURES & FOREX LLC, Case No. 1:18-cv-21399-CMA (S.D. Fla.), ask the Court to certify this class: All persons, corporations and other legal entities that held "short put" positions in ES Options with TDAFF on February 5, 2018, who were damaged by TDAFF's forced liquidation of their ES Options between the hours of 3:15 pm Central time on February 5, 2018, and 8:30 a.m. Central time on February 6, 2018. According to the Motion, the Class that the Plaintiffs seek to certify is comprised of similarly situated TD accountholders aggrieved by the same wrongful course of conduct -- TD's reckless and commercially unreasonable liquidation of their ES Options in the highly illiquid and volatile After Hours Market on Feb. 5, 2018.[CC] The Plaintiffs are represented by: Frank R. Rodriguez, Esq. Paulino A. Nunez Jr., Esq. RODRIGUEZ TRAMONT & NUNEZ P.A. 255 Alhambra Circle, Suite 1150 Coral Gables, FL 33134 Telephone: (305) 350-2300 Facsimile: (305) 350-2525 E-mail: frr@rtgn-law.com pan@rtgn-law.com - and - Lawrence A. Kellogg, Esq. Jason K. Kellogg, Esq. Victoria J. Wilson, Esq. LEVINE KELLOGG LEHMAN SCHNEIDER + GROSSMAN LLP 201 South Biscayne Boulevard Citigroup Center, 22nd Floor Miami, FL 33131 Telephone: (305) 403-8788 Facsimile: (305) 403-8789 E-mail: lak@lklsg.com jk@lklsg.com vjw@lklsg.com The Defendants are represented by: Adam Michael Schachter, Esq. Gerald Edward Greenberg, Esq. GELBER SCHACHTER & GREENBERG, P.A. 1221 Brickell Ave., Suite 2010 Miami, FL 33131 Telephone: (305) 728-0950 Facsimile: (305) 728-0951 E-mail: aschachter@gsgpa.com ggreenberg@gsgpa.com - and - Richard Morvillo, Esq. Robert Stern, Esq. Daniel Streim, Esq. ORRICK, HERRINGTON & SUTCLIFFE LLP 1152 15th Street NW Washington, DC 20005 Telephone: (202) 339-8400 E-mail: rmorvillo@orrick.com rstern@orrick.com dstreim@orrick.com TICKETMASTER: Ballard Spahr Attorneys Discuss Double Dipping Suit ----------------------------------------------------------------- Scott M. Pearson, Esq. -- PearsonS@ballardspahr.com -- and Stephanie I. Awanyai, Esq. -- awanyais@ballardspahr.com -- of Ballard Spahr LLP, in an article for The National Law Review, report that piling on after undercover journalists published exposés on alleged misconduct involving Ticketmaster's TradeDesk reseller program, consumers have filed a wave of class actions against Ticketmaster, claiming that the company consciously disregards illegal conduct of brokers who resell tickets through the platform. Whether or not these allegations have any merit (Ticketmaster denies them), they underscore the need for ticketing companies, and perhaps also sports teams and event promoters who do business with them, to ensure their practices comply with applicable law. In September 2018, the Canadian Broadcasting Corporation and Toronto Star reported on discussions between Ticketmaster representatives and journalists posing as ticket brokers at the 2018 Ticket Summit in Las Vegas. The Ticketmaster personnel were marketing TradeDesk, an online platform brokers can use to easily resell tickets in volume, including by linking their Ticketmaster purchase and reseller accounts. They allegedly told the journalists that the reseller division "turns a blind eye to scalpers who use ticket-buying bots and fake identities to snatch up tickets and then resell them on the site for inflated prices." One representative, for example, allegedly said he has "brokers that have literally a couple of hundred accounts," but "[i]t's not something that we look at or report." By ignoring the source of tickets being resold on its platform, the reports claimed, Ticketmaster is able to earn two commissions on the same ticket: one for the original purchase and another for the resale. Ticketing practices have faced increased scrutiny in recent years from state and federal regulators and Congress. In January 2016, for example, the New York Attorney General discussed consumer protection issues associated with ticketing in a report titled "Obstructed View: What's Blocking New Yorkers From Getting Tickets." Later that year, Congress passed the Better Online Ticket Sales Act of 2016, 15 U.S.C. Sec. 45c, 114 P.L. 274 (BOTS Act), which sought "[t]o prohibit the circumvention of control measures used by Internet ticket sellers to ensure equitable consumer access to tickets for any given event . . . ." Specifically, the BOTS Act prohibits circumvention of a "security measure, access control system, or other technology" used to enforce an online service's posted ticket purchasing limit; and it prohibits selling or offering to sell tickets where the seller participated in, or had the ability to control, a ticket purchase that circumvented a ticket limit, or where the seller knew or should have known that the ticket was purchased after ticket limits were circumvented. 15 U.S.C. Sec. 45c(a)(1). The Federal Trade Commission, which also has been active in this area, will conduct a workshop in March 2019 to examine competition, price, and availability issues in the online ticket marketplace. The recently filed class actions generally allege claims for unlawful, unfair, and deceptive practices under state law, arguing that Ticketmaster is essentially aiding and abetting violations of the BOTS Act, and also harming consumers by charging two commissions on the same tickets. Notably, however, reseller programs are not inherently unlawful or harmful to consumers. For example, events with no ticket quantity limits can be resold without fear of violating the BOTS Act. The concern is that Ticketmaster's resale division allegedly knew that its broker customers were using multiple accounts to circumvent ticket limits, and ignored that knowledge to earn double commissions. In order to protect themselves in this environment, ticketing companies should revisit all aspects of their sales practice compliance programs, including employee training and monitoring. They should also ensure that arbitration provisions in their consumer contracts have been updated to ensure enforceability. [GN] TREVENA INC: Kaskela Law Files Shareholder Class Action ------------------------------------------------------- Kaskela Law LLC on Oct. 16 disclosed that it has filed a shareholder class action lawsuit against Trevena, Inc. (NASDAQ: TRVN) ("Trevena" or the "Company") on behalf of purchasers of the Company's securities between May 2, 2016 and October 8, 2018, inclusive (the "Class Period"). IMPORTANT DEADLINE: Investors who purchased Trevena's securities during the Class Period may, no later than December 10, 2018, seek to be appointed as a lead plaintiff representative of the class. Investors who purchased the Company's securities during the Class Period and suffered a financial loss in excess of $100,000 are encouraged to contact Kaskela Law LLC (D. Seamus Kaskela, Esq.) at (888) 715–1740, or skaskela@kaskelalaw.com, to discuss their legal rights and options, or to request a copy of the shareholder complaint filed in this action. Additional information about this action may also be found at http://kaskelalaw.com/case/trevena/. The class action complaint alleges that defendants made false and misleading statements during the Class Period and failed to disclose material adverse facts to investors about the Company's interactions with the U.S. Food and Drug Administration ("FDA") concerning Oliceridine (TRV 130). Specifically, on May 2, 2016, Trevena announced that it had "reached general agreement" with the FDA on key elements of its Phase 3 program for Oliceridine, and that it was "very pleased" with the outcome of discussions with the FDA. In reality, the FDA disagreed with Trevena on several key factors relating to whether Oliceridine would ultimately be approved for commercial distribution. On October 9, 2018, it was revealed that the FDA informed the Company in 2016 that it "did not agree with the proposed dosing in the Phase 3 studies," the proposed primary endpoint, or the "proposed non-inferiority (NI) margin for comparing morphine to Oliceridine." Following this news, shares of Trevena's common stock fell more than 64% on October 9, 2018 to close at $1.07 per share. Investors who purchased the Company's securities during the Class Period and suffered a financial loss in excess of $100,000 are encouraged to contact Kaskela Law LLC for additional information about this action and their legal rights and recovery options. Kaskela Law LLC exclusively represents investors in state and federal courts throughout the country. For additional information about Kaskela Law LLC please visit www.kaskelalaw.com. [GN] UBER TECHNOLOGIES: Faces Class Action in Canada ----------------------------------------------- Woods s.e.n.c.r.l./llp on Oct. 15 disclosed that an Application to Institute a Class Action (court docket: 500-06-000902-185) was filed on January 23, 2018 against Uber Canada inc. and four related companies, namely Uber Technologies inc., Uber B.V., Rasier Operations B.V. and Uber Portier B.V. These proceedings are brought on behalf of the members of the two following classes: "All persons residing in Quebec that, as users, provided personal information to Uber that was collected, held, retained and used by Uber and disclosed without authorization to a third party in October 2016." -- and -- "All persons residing in Quebec that, as drivers, provided personal information to Uber that was collected, held, retained and used by Uber and disclosed without authorization to a third party in October 2016." The proposed class action is brought following the Uber hack that occurred in October 2016, and which led to the disclosure of Uber users and drivers' personal information to unauthorized third parties. The Petitioner Mr. Pierre-Olivier Fortier is represented by the law firm Woods LLP in Montreal. Justice Gary D.D. Morrison of the Superior Court of Quebec has been assigned to the file for the authorization phase. For further information on this class action, please consult the website: https://www.classactions.ca/?p=192&lang=en. For further information: Mtre. Sarah Woods (Partner), Woods LLP, (514) 982-4519, swoods@woods.qc.ca; Mtre. Jessy Héroux (Associate), Woods LLP, (514) 982-4505, jheroux@woods.qc.ca [GN] UNITED STATES: 200+ Children from Immigrant Families in Custody --------------------------------------------------------------- CNN reports that more than 200 children from separated undocumented immigrant families remain in US custody, officials said in a court filing on Oct. 15. Most of the 245 children in custody have parents who were removed from the United States -- 175 children, according to the latest government tally. Of those, only 18 children are currently in the pipeline to reunite with their parents in their countries of origin, according to court documents. Deported parents of 125 kids in custody have said they don't want their children to be returned to the countries of origin. And there are 32 children in government custody for whom the American Civil Liberties Union has not yet provided notice of whether parents want to reunify or decline reunification, officials said. An additional approximately 70 children who remain in custody include 27 whose parents are in the US but have chosen not to be reunified with their children, as well as 26 whose parents have been deemed unfit to be reunified. That tally also includes 13 children the US government is working to discharge who have parents in the US. The government says three other children can't be reunited with parents who are in the US at this time because there are red flags for safety or a parent is in criminal detention. The new numbers appeared in the latest federal court filing in the ACLU class action case over family separations. They come as the Trump administration considers a new pilot program that could result in the separations of kids and parents once again. A status hearing in the family separations case was scheduled for Oct. 16. In June, US District Judge Dana Sabraw ordered the government to reunite most of the families it had divided, including parents and children who had been separated as a result of the government's now-reversed "zero tolerance" policy at the border and some separations that occurred before that policy was put in place. Since then, 2,070 children have been discharged from government custody and reunited with parents, according to the Oct. 15 court filing. And so far, 79 of those children have been reunited with parents in their countries of origin. Officials have faced major hurdles trying to reach the deported parents of children who remain in custody in the United States. The ACLU is still struggling to reach some parents -- at least five, according to the latest tally -- to determine whether they want their children sent back to them in their countries of origin or prefer for them to remain in the US to have a chance at winning asylum. Officials have stressed that the numbers are constantly changing, and attorneys are still debating them as they meet to sort out the next steps in the case. In the joint filing, attorneys raised several issues that will likely come up in court on Oct. 16: Government attorneys responded to concerns raised by plaintiffs' attorneys that they aren't doing enough to swiftly implement a settlement agreement that dictates the next steps for parents and children in reunified families who are seeking asylum. "Defendants have significant concerns -- legal, practical, and equitable -- with the complete and immediate implementation that Plaintiffs have demanded," the filing says. The ACLU noted that it remains concerned about government decisions to remove children and parents from lists of class members or children in government custody. Government attorneys noted they've been working on improving communication and advance notification about repatriation flights. The ACLU says it "continues to raise concerns about timely information for repatriations" with government attorneys as they arise. [GN] UNITED STATES: Young Immigrants Win Right to Seek Special Status ---------------------------------------------------------------- Courthouse News Service reported that young immigrants who were abused, neglected or abandoned by their parents won the right to seek special immigrant juvenile status -- and a pathway to legal residency -- on Oct. 24, after a federal judge blocked a Trump administration policy making it difficult for people over age 18 to obtain the status. A copy of the Order Granting Plaintiffs' Motion for PreliminaryInjunction is available at: https://is.gd/rde7rW VITAL PHARMA: Faces Class Action Over Energy Drink Claims --------------------------------------------------------- Rick Archer, writing for Law360, reports that a consumer has launched a putative class action against energy drink maker Vital Pharmaceuticals Inc. in Illinois federal court, alleging the company's Bang energy drinks contain none or only small amounts. [GN] VIZIO: Settles Class Action Over Embedded TV Software ----------------------------------------------------- Jason Knott, writing for CEPro, reports that Vizio has settled a class action lawsuit regarding its embedded TV software that secretly tracked viewers watching habits and sold the data to third parties without their permission. Vizio already shelled out $2.2 million in 2017 in a settlement with the Federal Trade Commission for the same indiscretion. The company argued that FTC settlement precluded it from having also pay in this class action suit, but the judge disagreed. Owners of Vizio smart TVs bought between Feb. 1, 2014 and Feb. 6, 2017 will receive between $13 and $31 each under the terms of the settlement, depending on the number of valid claims that are submitted, according to topclassactions.com. In addition, Vizio has agreed to turn over all the proceeds from the sale of the data, as well as delete all the data that was collected during that timeframe, according to the decision in Vizio Inc. Consumer Privacy Litigation, Case No. 8:16-ml-02693, in the U.S. District Court for the Central District of California. Back in 2015, CE Pro predicted the company's "Smart Interactivity" software could lead to trouble as Vizio warned investors when it went public that year. In 2018, Vizio has a 3 percent marketshare among the CE Pro 100 Brand Analysis, and the company is reportedly gaining traction in the market due to its partnership with the PowerHouse Alliance. "This is not only important relief for the class, it sets an important precedent for the entire consumer electronics industry at a time when companies are leveraging new technologies to track customers without their knowledge or consent," noted an attorney representing the Vizio settlement members. The plaintiffs in the case were represented by Eric H. Gibbs, Andre Mura and Linda Lam of Gibbs Law Group LLP and Joseph W. Cotchett, Adam J. Zapala and Adam J. Trott of Cotchett Pitre & McCarthy LLP. [GN] WELLS FARGO: Nakamura Moves for Prelim. Nod of Class Settlement --------------------------------------------------------------- Jin Nakamura moves to certify the case entitled JIN NAKAMURA, on behalf of himself and all others similarly situated v. WELLS FARGO BANK, NATIONAL ASSOCIATION d/b/a WELLS FARGO DEALER SERVICES, INC., Case No. 5:17-cv-04029-DDC-GEB (D. Kan.), as a class action for the purposes of settlement, and for preliminary approval of the parties' class-wide settlement. Mr. Nakamura also asks the Court to appoint him as Class Representative and to appoint his counsel as Class Counsel. Defendant Wells Fargo Bank, National Association, doing business as Wells Fargo Dealers Services, Inc., does not oppose this Motion.[CC] The Plaintiff is represented by: Rex A. Sharp, Esq. Ryan C. Hudson, Esq. Scott Goodger, Esq. REX A SHARP, P.A. 5301 W. 75th Street Prairie Village, KS 66208 Telephone: (913) 901-0505 Facsimile: (913) 901-0419 E-mail: rsharp@midwest-law.com rhudson@midwest-law.com sgoodger@midwest-law.com - and - Bryce B. Bell, Esq. Mark W. Schmitz, Esq. BELL LAW, LLC 2600 Grand Blvd., Suite 580 Kansas City, MO 64108 Telephone: (816) 886-8206 Facsimile: (816) 817-8500 E-mail: Bryce@BellLawKC.com MS@BellLawKC.com - and - A. Scott Waddell, Esq. WADDELL LAW FIRM LLC 2600 Grand Blvd., Suite 580 Kansas City, MO 64108 Telephone: (816) 914-5365 Facsimile: (816) 817-8500 E-mail: scott@aswlawfirm.com YAHOO! INC: Settles Data Breach Class Action for $50MM ------------------------------------------------------ Matthew Renda, writing for Courthouse News Service, reported that Yahoo has agreed to pay $50 million and provide credit monitoring services for the approximately 200 million customers whose personal information was compromised in the largest data breach in history. The settlement, which must be approved by U.S. District Court Judge Lucy Koh, would bring a close to the sprawling class action stemming from hacks that occurred in 2013 and 2014 but were not disclosed until 2016. Earlier this month, Yahoo -- acquired by Verizon after disclosure of the data breach -- announced that it believes nearly all of its 3 billion accounts were affected by the breach. The settlement covers about a billion accounts held by some 200 million people. The hackers, some of whom were linked to Russia by U.S. investigators, used a phishing scheme in which they imitated the login interface of Yahoo's email platform to trick people into divulging personal information. Customers' names, addresses, phone numbers, dates of births and other personal information were divulged. Oath, a Verizon subsidiary, said the hackers did not obtain credit card information, bank account information or passwords. This past April, the Securities and Exchange Commission levied a $35 million fine on the web services company. The Associated Press reported users could receive about $375 each if they provide the court with documentation of the time they spent dealing with fallout from the hack. Those without documentation will receive $125, the AP said. Credit monitoring service can run up to $360 for two years and will be provided by Yahoo free of charge. The hearing for preliminary approval is currently set for Nov. 29 in Judge Koh's courtroom. [*] Companies Have Edge When Choosing Arbitrators, Report Says -------------------------------------------------------------- Quentin Fottrell, writing for Marketwatch, reports that companies appear to have the edge when choosing arbitrators to rule on consumer complaints. Economists from Harvard Business School, Stanford University and the University of Austin, Texas collected data containing roughly 9,000 arbitration cases in securities arbitration to determine whether firms have an advantage in selecting arbitrators in those cases, and whether that selection process impacts the result for consumers. Some arbitrators are known to be more friendly to industry, while others are more likely to be more sympathetic to consumers. Firms are more likely to use the former in the arbitration process, the researchers wrote. "Despite a randomly generated list of potential arbitrators, industry-friendly arbitrators are 40% more likely to be selected than their consumer friendly counterparts." Last year, President Trump signed a resolution killing the Consumer Finance Protection Bureau -- the independent government agency charged with protecting consumer financial rights -- rule that made it easier for consumers to sue financial firms in a class-action lawsuit rather than go through mandatory arbitration, a process that takes place behind closed doors. Mandatory arbitration clauses are buried in many contracts for credit cards, bank accounts and other non-financial services. They prevent consumers from participating in group or "class action" lawsuits against companies. This benefits companies because they save time and money, avoid negative publicity, and avoid nuisance lawsuits. Consumer groups have long fought against mandatory arbitration. They argue that class-action lawsuits are cheaper for consumers and more effective. Businesses, on the other hand, argue that arbitration is a faster, cheaper dispute resolution process for everyone concerned. That view was supported by a 2011 Supreme Court ruling, AT&T Mobility T, -2.97% v. Concepcion. Also see: The Great Recession turned America's student-loan problem into a crisis The latest report, which concludes that businesses have the edge in arbitration, is supported by earlier research. In the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act, Congress required the CFPB to study the use of arbitration clauses in consumer financial markets. In 2015, that report concluded that arbitration clauses restrict consumers' relief for disputes. "Tens of millions of consumers are covered by arbitration clauses, but few know about them or understand their impact," former CFPB director Richard Cordray, who was appointed under the Obama administration, said. "These arbitration clauses restrict consumer relief in disputes with financial companies by limiting class actions that provide millions of dollars in redress each year." Consumer groups have long fought against mandatory arbitration in contracts. They argue that class-action lawsuits are cheaper for consumers and have proven to be more effective. Last February, the acting director of the CFPB Mick Mulvaney, traded barbs with Senator Elizabeth Warren, a Democrat from Massachusetts, insinuating that she voted against repealing the mandatory arbitration rule because she was influenced by campaign donations from trial lawyers; Warren said CFPB research showed that consumers benefit from class-action lawsuits. In the latest study on the issue, distributed on Oct. 15 by the National Bureau of Economic Research, the researchers said securities disputes present a good laboratory. "The selection mechanism is similar to other major arbitration forums," the said. "Arbitration is mandatory for all disputes, eliminating selection concerns, and the parties choose arbitrators from a randomly generated list." However, competition between arbitrators tends to favor companies over consumers, as the former are more likely to have experience dealing with arbitration and, as such, have a better understanding of what arbitrators are more business- rather than consumer-friendly. The researchers recommend limiting both industry and consumer roles in choosing arbitrators. [GN] [*] Skadden Arps Provides Mid-Year Class Action Update ------------------------------------------------------ Skadden, Arps, Slate, Meagher & Flom (UK) LLP released its recent edition focusing on rulings issued between February 16, 2018, and June 15, 2018. In this issue, the law firm covers three decisions granting motions to strike/dismiss class claims, five decisions denying such motions, 27 decisions denying class certification or reversing grants of class certification, 34 decisions granting or upholding class certification, 11 decisions denying motions to remand or reversing remand orders pursuant to the Class Action Fairness Act (CAFA), and seven decisions granting motions to remand or finding no jurisdiction under CAFA that were issued during the four-month period covered by this edition. Class Certification Decisions -- Decisions Granting/Affirming Motion to Strike or Dismiss -- Decisions Denying Motions to Strike -- Decisions Rejecting/Denying Class Certification -- Decisions Permitting/Granting Class Certification Class Action Fairness Act Decisions -- Decisions Denying Motions to Remand/Reversing Remand Orders/Finding CAFA Jurisdiction -- Decisions Granting Motions to Remand/Finding No CAFA Jurisdiction -- Other CAFA Decisions Class Certification Decisions Decisions Granting/Affirming Motion to Strike or Dismiss Walters v. Vitamin Shoppe Industries, Inc., No. 3:14-cv-1173-PK, 2018 WL 2424132 (D. Or. May 8, 2018), report and recommendation adopted, 2018 WL 2418544 (D. Or. May 29, 2018) The plaintiff asserted nationwide class claims for unjust enrichment and fraud and claims for violations of Oregon consumer protection law on behalf of a proposed subclass of Oregon purchasers, alleging the defendant misleadingly labeled its supplements in referring to volume per serving rather than the volume per individual pill, capsule or tablet. Judge Anna J. Brown of the U.S. District Court for the District of Oregon adopted the findings and recommendation of Magistrate Judge Paul Papak and granted the defendant's motion to strike the nationwide class allegations. The motion was not premature because determining variations in state law presented legal issues that could be resolved without discovery, and a motion to strike pursuant to Federal Rule of Civil Procedure 12(f) was "procedurally appropriate." The court further concluded that material variations in state law on fraud and unjust enrichment would produce different outcomes, and thus, under Oregon choice of law statutes, the law of the state of purchase would govern each proposed class member's claim. Rule 23(b)(3)'s predominance requirement could not be satisfied as to the unjust enrichment claim due to differences in state laws, such as the applicable statute of limitations, whether unjust enrichment is a standalone claim or a quasi-contract claim, and the accrual date. Material differences in state law such as the level of scienter necessary to show fraud, the plaintiff's burden of proof, statute of limitations and whether reliance may be presumed defeated predominance as to the fraud claim. The court's order striking the class allegations was without prejudice, however, to allow the plaintiff to narrow his class definition to include only residents of those states where the law does not materially differ. Reedy v. Phillips 66 Co., No. H-17-2914, 2018 WL 1413087 (S.D. Tex. Mar. 20, 2018) Judge Sim Lake of the U.S. District Court for the Southern District of Texas dismissed nationwide class claims brought on behalf of purchasers of allegedly defective aircraft fuel on the ground that the need to apply the laws of multiple states to the proposed class members' claims made a finding of predominance impossible. The plaintiffs in the case sought to assert claims for strict products liability, negligence, and breach of implied and express warranties on behalf of the nationwide class, and also sought certification of a statewide class of Kansas fuel purchasers alleging consumer fraud. The defendant moved to strike both proposed classes, and the court determined that the motion was properly treated as a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). With respect to the proposed nationwide class, the court granted the motion to dismiss in light of the need to apply the law of each proposed class member's home state to resolve his or her claims. While the plaintiffs argued that discovery may reveal that the proposed class members reside in fewer than 50 states -- and that those states may have overlapping laws -- the court rejected this argument and found that the "burden of applying the products liability and warranty laws of each class member's state defeats predominance and, thus, nationwide class certification." The court, however, refused to dismiss the proposed Kansas-only, consumer-fraud class for lack of factual predominance. In so holding, the court noted that the plaintiffs had not clearly alleged whether their consumer fraud claims were based on an alleged omission or misrepresentation, which would affect the elements they would have to prove at a class trial. The court therefore permitted the plaintiffs to amend their complaint and reallege their consumer fraud claims under Kansas law. Taylor v. Denka Performance Elastomer LLC, No. CV 17-7668, 2018 WL 1010186 (E.D. La. Feb. 22, 2018), 23(f) pet. denied Judge Martin L. C. Feldman of the U.S. District Court for the Eastern District of Louisiana denied the plaintiffs' motion to reconsider the court's order denying the motion for extension of time to file a motion for class certification and granted the defendant's motion to strike the plaintiffs' motion for class certification. The plaintiffs alleged that the production of synthetic rubber at the defendant's facility emitted a carcinogen, resulting in a significantly increased risk of cancer. The court found that the plaintiffs missed the deadline to file a motion for class certification, and their request for an extension to file was denied as untimely. The court also rejected the plaintiffs' argument that the filing of an amended notice of removal reset the 91-day clock for filing a class certification motion. Accordingly, the court dismissed the class allegations for failure to timely seek class certification. Decisions Denying Motions to Strike Doe v. Trinity Logistics, Inc., No. 17-53-RGA-MPT, 2018 WL 1610514 (D. Del. Apr. 3, 2018), report and recommendation adopted, 2018 WL 2684109 (D. Del. June 5, 2018) Judge Richard G. Andrews of the U.S. District Court for the District of Delaware adopted the report and recommendation of Chief Magistrate Judge Mary Pat Thynge and denied the defendants' motion to strike class claims under the federal Fair Credit Reporting Act (FCRA). The plaintiff, on behalf of putative class members, alleged that the defendants, a consumer reporting agency and an employer, created and used consumer reports to take adverse employment actions without informing potential employees or providing them with copies of the reports as required by law. In recommending that the motion to strike be denied, the magistrate judge essentially conducted a full class certification analysis under Rule 23. Specifically, she found that the proposed class satisfied the Rule 23(a) requirements, noting that common issues of fact and law — e.g., whether the uniform failure to timely provide a copy of employment reports violates the FCRA — existed and the claims were typical because all putative class members were similarly affected by the defendants' actions. The magistrate judge also indicated that the class satisfied the predominance and superiority requirements of Rule 23(b)(3) because common questions of law and fact, including whether the defendants willfully or negligently failed to provide class members notice before taking an adverse action against them, predominated over individual issues. The magistrate judge also found that the class definition was objective and not conclusory, rejecting the defendants' argument that because the class definition nearly parroted the statute's language, the court would have to conduct individualized inquiries to discern whether each putative class member fit in the class. Accordingly, the court ruled against striking the class claims. Butterline v. Bank of New York Mellon Trust Co., National Ass'n, No. 15-1429, 2018 WL 1705957 (E.D. Pa. Apr. 6, 2018) Judge Juan R. Sánchez of the U.S. District Court for the Eastern District of Pennsylvania denied a motion to strike class claims alleging that the defendant bank failed to give putative class members excess proceeds from foreclosure sales, in violation of state law. The court rejected the defendant's contention that the class was not ascertainable, accepting the plaintiffs' argument that class members could be identified from records of sheriff sales where the bank received excess proceeds. The court also postponed a decision on predominance until after class discovery given the scant amount of attention devoted to predominance in the parties' briefing. Casso's Wellness Store & Gym, L.L.C. v. Spectrum Laboratory Products, Inc., No. 17-2161, 2018 WL 1377608 (E.D. La. Mar. 19, 2018) Judge Kurt D. Engelhardt of the U.S. District Court for the Eastern District of Louisiana denied defendant Spectrum's motion to dismiss and/or strike class allegations (1) for lack of personal jurisdiction under Bristol-Myers Squibb Co. v. Superior Court of California, 137 S. Ct. 1773 (2017); (2) as inappropriate for class treatment under Rules 23(c)(1)(A) and 23(d)(1)(D); and (3) as unconstitutional under the Fifth Amendment's due process clause. The plaintiff had filed a putative class action, alleging violations of the Telephone Consumer Protection Act (TCPA), as amended by the Junk Fax Prevention Act (JFPA). The plaintiff sought damages and injunctive relief for Spectrum's massive faxing campaign that allegedly failed to comply with mandatory opt-out notice requirements under the TCPA, JFPA and Federal Communications Commission regulations. The plaintiff proposed a class defined as: "All persons and entities that are subscribers of telephone numbers to which within four years of filing of the Complaint, Defendant sent facsimile transmission with content that discusses, describes, promotes products and/or services offered by Defendant, and does not contain the opt-out notice required by [federal law]." First, the court held that Bristol-Myers did not foreclose the court's jurisdiction over non-Louisiana residents because (1) that opinion addressed mass torts, not class actions; (2) unlike a mass action, a plaintiff seeking to represent absent members in a class action is the only one in the complaint, and only his or her claims are relevant to the personal jurisdiction inquiry; (3) the named plaintiff had adequately alleged the court's personal jurisdiction over the defendant; and (4) Spectrum did not dispute the reasonableness of the court's exercise of personal jurisdiction. Second, the court denied without prejudice Spectrum's motion to strike the class allegations for failing to satisfy Rule 23's requirements, reasoning that the motion was premature. Spectrum had not filed its answer, discovery had not commenced and the plaintiff had not yet filed a motion for class certification. Accordingly, the court could not adequately ascertain whether the plaintiff could properly certify a class. Finally, the court rejected Spectrum's due process motion, reasoning that (1) the TCPA is "uniquely well-suited to class resolution"; and (2) other courts had "persuasively rejected" the argument that TCPA class actions violate the Fifth Amendment. Sos v. State Farm Mutual Automobile Insurance Co., No. 6:17-cv-890-Orl-40KRS, 2018 WL 1866097 (M.D. Fla. Mar. 12, 2018) Judge Paul G. Byron of the U.S. District Court for the Middle District of Florida, adopting the report and recommendation of Magistrate Judge Karla R. Spaulding, denied the defendant's motion to strike class allegations. The plaintiff's second amended complaint alleged that the defendant, an insurance company, failed to pay sales tax and regulatory fees in connection with the plaintiff's loss claim, in violation of state law and the insurance policy. The plaintiff sought to bring suit on behalf of both Florida and non-Florida insureds in a nationwide class. The defendant moved to strike on the grounds that the class would be impossible to certify since it would require analysis of the unique insurance policies and laws of all 50 states. Magistrate Judge Spaulding found that the defendant's motion to strike was premature due to the need for evidentiary review before determining the suitability of class certification, since it was not sufficiently clear from the face of the complaint whether class certification was appropriate. Judge Byron agreed and referenced U.S. Court of Appeals for the Eleventh Circuit precedent in which courts have held that striking class allegations on the pleadings alone was premature. Furthermore, while Judge Byron noted that class certification is generally not appropriate where claims must be decided on the laws of multiple states, he declined to consider the actual differences in the states' laws at this stage of the litigation. Accordingly, the court deferred the choice-of-law issue to the class certification stage and denied the defendant's motion to strike. MAO-MSO Recovery II, LLC v. Government Employees Insurance Co., Nos. PWG-17-711, PWG-17-964, 2018 WL 999920 (D. Md. Feb. 21, 2018) Judge Paul W. Grimm of the U.S. District Court for the District of Maryland denied the defendant's motion to dismiss class allegations filed on behalf of two nationwide classes of Medicare Advantage organizations seeking reimbursement for accident-related medical expenses paid to beneficiaries. The defendant argued that both classes were overbroad and that the plaintiffs had failed to assert specific facts in support of certification. The court held it was premature to rule on class certification because the requirements of Rule 23 could be met depending on the outcome of discovery. As such, it denied the defendant's motion to dismiss the class allegations without prejudice to renewal at the point of class certification. Decisions Rejecting/Denying Class Certification Gonzalez v. Corning, 885 F.3d 186 (3d Cir. 2018), as amended (Apr. 4, 2018) The U.S. Court of Appeals for the Third Circuit (Hardiman, Chagares and Jordan, JJ.) affirmed the denial of class certification where consumers alleged that the defendant sold defective roof shingles and misrepresented the shingles' expected useful life. In the district court, the plaintiffs moved to certify two classes: (1) a nationwide class to determine the legal standard on when the defendant can use a bankruptcy discharge defense to shield itself from liability; and (2) a class of property owners from Pennsylvania, Illinois, Texas and California (the four-state class) asserting various combinations of state law causes of action. The district court declined to certify either class. The court ruled the nationwide class failed the commonality requirement, finding the only common question was nonjusticiable. The lower court also held that the four-state class could not demonstrate that common issues of law or fact predominated over individual ones and certifying an issue class under Rule 23(c)(4) to decide issues of liability was inappropriate. The U.S. Court of Appeals for the Third Circuit agreed. On appeal, the plaintiffs first argued that two common issues predominated for the four-state class members: whether the shingles had a common defect and whether the defendant misrepresented their useful life. The defendant countered that these questions did not have common answers because of the wide variety of different shingles, some of which the plaintiffs admitted had no defect. The panel rejected the plaintiffs' argument that all class members shared a common risk of having defective singles because it "equate[d] the existence of a defect with the mere possibility that one might exist." The plaintiffs next argued that the district court improperly assessed the merits of the plaintiffs' claims at the class certification stage. But the panel pointed out that courts could look to merits issues that were intertwined with class certification questions. Finally, the plaintiffs argued that the district court should have certified a liability-only class because resolution of the common liability issues would materially advance the litigation. The panel held that a liability class was inappropriate because the plaintiffs offered no theories of liability common to the class. Accordingly, the Third Circuit affirmed the denial of class certification. Cochoit v. Schiff Nutrition International, Inc., No. SACV 16-01371-CJC(KESx), 2018 WL 3372751 (C.D. Cal. July 9, 2018) Judge Cormac J. Carney of the U.S. District Court for the Central District of California refused to certify a nationwide class and subclass of California purchasers alleging the defendants falsely advertised their "Digestive Advantage" products. In 2012, the plaintiff's attorney, Ronald Marron, negotiated the settlement of a related putative consumer class action against the same defendants, concerning nearly identical claims arising from nearly identical representations, and received $300,000 in attorneys' fees. The settlement agreement included a "notice and cure" provision, in which Marron agreed to notify and give the defendants' counsel 30 days to cure any advertising that they believed breached the settlement agreement until May 3, 2015. Marron did not contact any of the defendants during the cure period but brought this action in 2016 on behalf of the current plaintiff. The court concluded that while it was in the plaintiff and the class' interest to argue that all related advertisements were false, in asserting that argument, Marron would be forced to explain why he allowed a similar advertising scheme to continue and risk admitting a breach of the settlement and a disgorgement of the fees he received, creating a conflict of interest. Moreover, Marron's conduct and involvement in both cases were distractions from the merits of the plaintiff's claims, at the expense of the putative class members and their ability to litigate the merits of their claims. Based on the conflict of interest and Marron's inability to vigorously represent the absent class members, the court held the adequacy requirement was not satisfied and did not address the remaining Rule 23 factors in denying the plaintiff's certification motion. In re Seagate Technology LLC, No. 16-cv-00523-JCS, 2018 WL 3306192 (N.D. Cal. July 5, 2018) Chief Magistrate Judge Joseph C. Spero of the U.S. District Court for the Northern District of California declined to certify a nationwide damages class under California consumer protection laws, or eight subclasses under the laws of various states, on claims that Seagate failed to disclose information about the features and reliability of its hard drives. The court held that foreign law should apply based on other states' significant interest in regulating transactions within their borders and denied certification of the nationwide class. Regarding the state-based subclasses, the court noted that although variation of the alleged omissions over time and across products would pose difficulties in defining the subclasses, the evidence presented would not significantly vary across the eight states. However, common issues did not predominate under the plaintiffs' theories of liability. The plaintiffs failed to present a method of showing that suitability of the hard drives for particular configurations was material to consumers, and only a subset of the named plaintiffs stated that they relied on that feature when purchasing. The plaintiffs' other theory focused on Seagate's alleged failure to disclose that hard drives were unreliable and had high failure rates. The court held that the plaintiffs failed to present classwide proof that the failure rate was higher than represented or otherwise actionable; nor did the plaintiffs present a plan for addressing variations across time, product modifications and intended uses. As a result, the court held that common issues did not predominate and denied the motion without prejudice to moving to certify narrower, or more precisely defined, classes. Career Counseling, Inc. v. Amsterdam Printing & Litho, Inc., No. 3:15-cv-05061-JMC, 2018 WL 3241178 (D.S.C. July 3, 2018) Judge J. Michelle Childs of the U.S. District Court for the District of South Carolina denied without prejudice the plaintiff's amended motion for class certification in this Telephone Consumer Protection Act (TCPA) "junk fax" case because the proposed class was not sufficiently ascertainable. To determine prospective class members who were successfully sent faxes in violation of the TCPA, the plaintiff proposed an administrative system in which a list of targeted fax numbers was cross-referenced with a list of those numbers that were removed or for which delivery of the fax failed. The court determined that this method would require the court to look at each number individually, thus imposing a significant administrative burden on ascertaining the class. Therefore, the court denied class certification. Perisic v. Ashley Furniture Industries, Inc., No. 8:16-cv-3255-T-17MAP, 2018 WL 3391359 (M.D. Fla. June 27, 2018) The plaintiff sought certification of a class of Florida consumers who purchased DuraBlend® products from Ashley Furniture Industries (AFI), asserting the consumers were fraudulently led to believe the products were similar in quality to real leather items. The plaintiff filed claims under the Florida Deceptive and Unfair Trade Practices Act (FDUTPA) and for unjust enrichment. Magistrate Judge Mark Pizzo of the U.S. District Court for the Middle District of Florida refused to certify the class on ascertainability, typicality, commonality and predominance grounds. Specifically, Judge Pizzo held that the plaintiff failed to satisfy the ascertainability element because the evidence failed to demonstrate a systematic or uniform marketing scheme, requiring an examination of each potential class member's circumstances to determine whether the class member was deceived in violation of FDUTPA. Additionally, unlike the other proposed class members, the plaintiff -- who had a family of six people and five cats -- relied on specific statements by a salesperson regarding the durability of the furniture. The plaintiff also had not been exposed to the hangtags, marketing products or labels of AFI that she alleged to be deceptive. Therefore, the judge found that the plaintiff's experience was not typical of the class. The judge further found that the commonality element was not satisfied because class members had differing exposures to the allegedly deceptive representations, noting that the five class members who submitted declarations all had unique experiences. Finally, the judge found that the plaintiff failed to meet the predominance requirement because FDUTPA and unjust enrichment claims against AFI turned on unique facts. Because common questions of fact or law did not predominate, the court held that a class action was not superior to other methods of adjudication. Accordingly, the court held Rule 23(b)(3)'s requirements were not met and recommended that the court deny class certification. Rosenberg v. CCS Commercial, LLC, No. C17-476 MJP, 2018 WL 3105988 (W.D. Wash. June 25, 2018) The plaintiff alleged that the defendant collection service, employed by the co-defendant insurance company to collect payments from drivers involved in accidents with their insureds, sent debt collection-type notices identified as "subrogation claims" to class members in violation of the Washington Consumer Protection Act (CPA). Judge Marsha J. Pechman of the U.S. District Court for the Western District of Washington denied the plaintiff's motion for certification. The court held commonality and predominance were not satisfied because CCS employed a series of communications, including letters and phone scripts with varying responses, which meant the determination of whether, when and how an individual member was deceived would require case-by-case analyses. The court rejected as "outdated" the defendant's objections as to adequacy because the plaintiff's attorney was underwriting the lawsuit, but it held that typicality and adequacy were also not satisfied, because the plaintiff consulted a class action attorney prior to receiving any notice from CCS, volunteered to pay the requested amount (despite the fact that she contested liability) and then sued the other driver for all her losses except the money she paid to CCS. The court held that these facts "seriously call[] into question whether she was deceived at all . . . or was compelled by some circumstance other than liability to remit the requested sum," and noted it had "never seen a clearer case of 'subject to unique defenses.'" As to predominance, the court held many of the defendants' vagueness objections could be solved through rewording of the class definition, but individual issues predominated as to the motivation of class members who paid CCS, because an inquiry into the circumstances of every class member's case was required to ascertain whether he/she acknowledged fault in his/her particular accident, which would render the defendants immune from CPA/unjust enrichment liability. Victorino v. FCA US LLC, No. 16cv1617-GPC(JLB), 2018 WL 2967062 (S.D. Cal. June 13, 2018), 23(f) pet. pending Judge Gonzalo P. Curiel of the U.S. District Court for the Southern District of California denied a motion for class certification in an action alleging that several model years of Dodge Dart vehicles contained a transmission defect and asserting California breach of warranty and consumer protection claims. Regarding the proposed nationwide implied warranty class, because the federal implied warranty claim was based solely on California law, the court found the plaintiff failed to address -- and therefore meet his initial burden -- that California law actually applied to the nationwide class and that such application would not violate due process. For the proposed California implied warranty class, the court first noted that there is a district court split on whether a plaintiff seeking to certify a California implied warranty class must demonstrate, with evidence, an inherent defect that is "substantially certain to result in malfunction during the useful life of the product." The court held that such showing is not necessary, because the court should avoid determinations on the merits at the class certification stage. Nonetheless, the court found that the class definition, which included used vehicles, was overbroad because California's implied warranty law does not apply to used vehicles. The court declined to modify the class definition because the plaintiff failed to demonstrate that his damages model met the Rule 23(b)(3) predominance requirement, as it required an individualized assessment of the "difference in the value represented and the value actually received" of the transmission components. Additionally, the court denied the plaintiff's motion to certify an injunctive relief class under Rule 23(b)(2) to remedy the clutch defect because the alleged common injury was the overpayment of the purchase price of the vehicles, and thus monetary damages were the appropriate form of relief. Bohlke v. Green Star Capital Solutions, LLC, No. 17-CV-81379-MIDDLEBROOKS, 2018 WL 3413030 (S.D. Fla. June 7, 2018) Judge Donald M. Middlebrooks of the U.S. District Court for the Southern District of Florida denied the plaintiff's motion for class certification alleging violations of the Telephone Consumer Protection Act. Specifically, the plaintiff sought to certify two classes: (1) a class of plaintiffs who received automatic telephone dialing system solicitation calls from the defendant without consent; and (2) a class of plaintiffs who received certain calls from the defendant despite being on the National Do Not Call Registry. The court held that there was insufficient evidence to make a determination on the Rule 23 requirements for class certification. While the plaintiff alleged that the proposed class included thousands of members, he did not provide supporting evidence; the only support for his allegation consisted of declarations from his counsel and an expert who had not reviewed any discovery. Because the plaintiff could not provide sufficient evidence, the court denied the motion for class certification. Greene v. Mizuho Bank, Ltd., No. 14 C 1437, 2018 WL 2735112 (N.D. Ill. June 7, 2018) Judge Gary Feinerman of the U.S. District Court for the Northern District of Illinois denied class certification to plaintiffs seeking to hold the defendants liable for financial losses arising from the failure of the Mt. Gox bitcoin exchange. The plaintiffs brought claims of tortious interference with contract, unjust enrichment and fraudulent concealment related to the defendant bank's continued acceptance of international inbound wire transfers from Mt. Gox customers when it had stopped processing all outbound wire transfer requests for Mt. Gox customers. Put differently, the "gist of the claims" was that the bank's decision to stop processing outbound wire transfers created a "trap" for investors based in the United States. On review, the court found that the named plaintiff failed to show that his claims were typical of the proposed class or that he was an adequate representative of the proposed class. With respect to adequacy, the court found that the named plaintiff was subject to arguable defenses not applicable to the class as a whole. At his deposition, the named plaintiff indicated that he would have found a way to invest in bitcoin on the exchange even if he had known the bank had stopped processing outbound wire transfers, and if he had withdrawn his investment, he would have done so in bitcoin. This testimony "severely undermined" his ability to prove injury from the bank's conduct, as he "admitted that he did not perceive his money to be trapped at all." In addition, the named plaintiff's claims were not typical of the proposed class because the bank had offered the plaintiff an opportunity to cancel his wire transfer and recoup his funds. That opportunity was not available to members of the proposed class. Accordingly, the court denied class certification. Williamson v. S.A. Gear Co., No. 15-CV-365-SMY-DGW, 2018 WL 2735593 (S.D. Ill. June 7, 2018) Judge Staci M. Yandle of the U.S. District Court for the Southern District of Illinois denied class certification to plaintiffs alleging violations of state law express-and-implied warranty claims, the Illinois Consumer Fraud Act, common law fraud claims, strict liability claims and unjust enrichment. The plaintiffs alleged that the defendants sold a car part falsely claiming that it met Chrysler/Dodge/original equipment manufacturer specifications and that it was suitable for use in a particular Chrysler engine. Judge Yandle held that commonality was satisfied because "a single common question is sufficient," and whether the part's packaging was false or misleading was relevant to the claims and was capable of classwide resolution. Typicality, however, was not satisfied because the plaintiffs failed to demonstrate that their claims arose out of the same event or course of conduct as all putative class members' claims. Here, the plaintiffs did not identify a significant or meaningful number of complaints about the alleged defect or other evidence demonstrating any other consumer's belief that the part was defective or that representations about the part were misleading. Instead, the plaintiffs relied on three complaints, none of which mentioned the particular issue the named plaintiffs believed was defective, the O-ring. Finally, the proposed class failed the adequacy requirement because the record suggested that few, if any, potential class members shared the named plaintiffs' issues with the part. Accordingly, the court denied class certification. Teggerdine v. Speedway, LLC, No. 8:16-cv-03280-T-27TGW, 2018 WL 2451248 (M.D. Fla. May 31, 2018) Judge James Whittemore of the U.S. District Court for the Middle District of Florida declined to certify a class of retail gasoline purchasers alleging that the defendants were negligent by implementing a payment processing program that placed authorization holds on their accounts. The court held that the plaintiff failed to satisfy the predominance and superiority requirements, explaining that because the plaintiff's claims sounded in negligence -- a claim that varies among the 21 states in which the relevant transactions occurred -- individual issues regarding liability for negligence predominate. Furthermore, managing the litigation of the various state law negligence claims was not the superior method of litigation. Accordingly, the court denied the plaintiff's motion for class certification. Arthur v. United Industries Corp., No. 2:17-cv-06983-CAS(SKx), 2018 WL 2276636 (C.D. Cal. May 17, 2018) Judge Christina A. Snyder of the U.S. District Court for the Central District of California denied the plaintiff's motion to certify a nationwide class asserting California consumer protection law claims. The plaintiff alleged that the defendant misrepresented that each bottle of concentrate herbicide could be diluted to make a specified number of gallons. The court held that although numerosity was satisfied, the plaintiff and the proposed class members had suffered different alleged injuries. The plaintiff testified that he mixed the concentrate based on his own calculation and that the resulting solution did not perform as expected. By contrast, the class members allegedly mixed the concentrate according to the instructions and received less spray than advertised. The plaintiff also testified that he had failed to read the mixing instructions on the packaging. Thus, commonality, typicality and adequacy were not satisfied. The plaintiff also failed to satisfy the Rule 23(b) predominance requirements. He did not offer a classwide method of proving that the labeling constituted an actionable misrepresentation and failed to demonstrate reliance, as he had not read the packaging. His failure to read the label also meant he could not establish that material misrepresentations were made to the class members through common proof. The court declined to consider predominance of damages or superiority and adequacy in light of the other Rule 23 shortcomings. The court also refused to certify a class for injunctive relief, as the court had previously dismissed the plaintiff's claim for injunctive relief as pre-empted by the Federal Insecticide, Fungicide and Rodenticide Act. Davidson v. Apple, Inc., No. 16-CV-04942-LHK, 2018 WL 2325426 (N.D. Cal. May 8, 2018), 23(f) pet. voluntarily dismissed Judge Lucy H. Koh of the U.S. District Court for the Northern District of California declined to certify a class of iPhone 6 and iPhone 6 Plus purchasers asserting claims under various state consumer protection laws for alleged failure to disclose touchscreen defects. The court held that while Rule 23(a) was satisfied, Rule 23(b) was not. The court held that statements on the iPhone box were sufficient to demonstrate "uniform" prepurchase exposure and rejected Apple's argument that individual inquiries were required as to other causes for touchscreen malfunction or whether class members encountered the defect, because proof of manifestation is not a prerequisite to certification, and individual factors affecting performance did not affect the ultimate common question — whether the iPhones were sold with a defective touchscreen. However, the plaintiffs' damages model -- surveying customers to determine the value of various attributes and surmise the "negative" economic value of a generic "defect" -- was fatally flawed because it assumed the touchscreen defect will manifest in all iPhones when it only manifests in 5.6 percent of the iPhone 6 Plus, less for the iPhone 6. Because damages models must measure only those damages attributable to the plaintiffs' theory of liability, the model should have assumed a roughly 5.6 percent or less chance that consumers would experience the defect. The model also did not specify that the "defect" affected only the touchscreen and assumed the defect would render the iPhone inoperable, although none of the named plaintiffs experienced inoperability. The inadequate damages model thus did not satisfy Rule 23(b)(3)'s predominance requirement. The court also refused to certify a Rule 23(c)(4) issues class as to the existence and knowledge of a defect, duty to disclose and other liability issues because adjudication of those issues would not advance resolution, given the inability to prove damages on a classwide basis. Proctor v. District of Columbia, 310 F. Supp. 3d 107 (D.D.C. 2018) Judge Trevor N. McFadden of the U.S. District Court for the District of Columbia denied certification in this civil rights case alleging that the District of Columbia destroyed the property of homeless residents in violation of the Fourth Amendment during "encampment cleanups." The putative class included all homeless persons who reside in public spaces that are subject to district, rather than federal, government oversight and have been or will be subject to encampment cleanups by the district. After denying the plaintiffs' motion for a preliminary injunction, the court also denied the motion for class certification. It held that the plaintiffs had not adequately shown the class was sufficiently numerous. Though Census data showed about 900 homeless persons in the district, the plaintiffs could not define how many of them lived on federal property and therefore were subject to federal authority; nor could they show how many had been or will be subject to encampment cleanups. As such, the court found that the plaintiffs had not met their burden under Rule 23(a)(1) and denied class certification. Campbell v. National Railroad Passenger Corp., 311 F. Supp. 3d 281 (D.D.C. 2018) Judge Emmet G. Sullivan of the U.S. District Court for the District of Columbia denied class certification in this employment discrimination class action against Amtrak. As an initial matter, the court denied certification because all of the putative classes and subclasses were fail-safe classes, consisting by their terms of those employees who had suffered discrimination. Therefore, if the plaintiffs failed to prove discrimination on the merits, the classes would consist of no members and the defendant would be denied any preclusive effect. The court further concluded that even a properly pleaded class could not satisfy the class certification requirements because the plaintiffs alleged a patchwork of individual acts of discrimination by various supervisors and other employees, rather than a single common policy of discrimination. For this reason, the case could not provide common answers, and commonality was therefore not satisfied. Herron v. Best Buy Stores, LP, No. 2:12-cv-02103-TLN-CKD, 2018 WL 1960659 (E.D. Cal. Apr. 26, 2018), 23(f) pet. granted Judge Troy L. Nunley of the U.S. District Court for the Eastern District of California denied the plaintiff's amended motion for certification of a class of California laptop purchasers alleging violations of California consumer protection laws based on purported misrepresentations about battery life. The court previously refused to certify a class, as discussed in the summer 2016 issue of The Class Action Chronicle, because the plaintiff's damages model was not tied to his theory of liability. Noting the plaintiff must provide evidence of a damages model that could determine the price premium attributable to the defendant's use of the allegedly misleading battery-life representations, the court held that instead, the plaintiff only introduced evidence that an increase in battery life equals an increase in price by calculating "the difference in value of one alleged misrepresented hour of battery life against another alleged misrepresented hour of battery life." This failed to explain how the difference in the relative prices of various mislabeled laptops is helpful in determining whether a price premium is associated with the allegedly deceptive labels. The court rejected the plaintiff's reply argument that the correct way to measure restitution damages is the difference between what consumers were promised and what they actually received, because under a restitution theory, consumers are entitled not to what they were promised but rather, to the difference between the price they paid and the true market price of the laptops they received. Because the plaintiff provided no restitution model demonstrating that a change in the defendant's labeling would cause a change in market price, the damages model was not tied to his theory of liability and did not demonstrate a classwide basis for calculating damages as required under Rule 23(b)(3). Andren v. Alere, Inc., No. 16cv1255-GPC(AGS), 2018 WL 1920179 (S.D. Cal. Apr. 24, 2018) Judge Gonzalo P. Curiel of the U.S. District Court for the Southern District of California denied the plaintiffs' motion for reconsideration of the court's previous order denying class certification of six state subclasses, discussed in the spring 2018 issue of The Class Action Chronicle. The plaintiffs alleged deceptive and misleading advertising and marketing of the defendants' electronic blood-clotting testing devices. Recognizing that an order denying class certification may be altered or amended before final judgment, the court considered the plaintiffs' motion under Rule 23 and not the parameters of a motion for reconsideration. The plaintiffs argued that newly discovered facts demonstrated that predominance was satisfied with respect to the learned intermediary doctrine, statute of limitations and damages. Specifically, the plaintiffs argued that common issues predominated with respect to the learned intermediary doctrine because the defendants failed to warn any physicians about the devices, and the issue was therefore subject to common proof. Rejecting this argument, the court noted that the learned intermediary doctrine requires more than demonstrating a failure to warn; it also requires demonstrating proximate cause, leading to individual inquiries into each doctor's experience with the product. The court also held that the plaintiffs failed to demonstrate that each of the six subclass state's consumer protection statutes provide for a full refund recovery. Further, the court found that while the plaintiffs may be entitled to tolling of the statute of limitations under equitable tolling and/or the discovery rule, they had not sufficiently demonstrated its application to the six subclass states and whether these exceptions would allowing tolling for each of the potential class members, some of whom may have had earlier notice of issues with the testing devices. Craft v. South Carolina State Plastering, LLC, No. 9:15-cv-5080-PMD, 2018 WL 1993863 (D.S.C. Apr. 16, 2018), 23(f) pet. pending Judge Patrick Michael Duffy of the U.S. District Court for the District of South Carolina denied class certification in this putative class action alleging construction defects related to the stucco applied to homes. The court held that the predominance inquiry was fatal to the plaintiffs' class certification motion because individualized inquiries into liability and damages would require the destructive evaluation of each house. The court also explained that because the application of the defendant's statute of limitations affirmative defenses would vary depending on facts particular to each plaintiff's case, class certification was erroneous. Moreover, the court found that management difficulties counseled against a finding of superiority, and establishing subclasses and mini-trials would further cause issues. Finally, the court discounted certification of similar cases in South Carolina state court, noting that the South Carolina Rules of Civil Procedure took a more expansive view of class action availability than the federal rules. Accordingly, the court declined to certify the putative class. Theodore D'Apuzzo, P.A. v. United States, No. 16-62769-Civ-Scola, 2018 WL 2688760 (S.D. Fla. Apr. 12, 2018) Judge Robert N. Scola, Jr. of the U.S. District Court for the Southern District of Florida denied the plaintiff's motion for class certification alleging breach of contract, breach of the implied covenant of good faith and fair dealing, and illegal exaction. The claims arose in connection with the E-Government Act that provides for access to judicial "written opinions" on the Public Access to Court Electronic Records (PACER) database. According to the PACER Fee Schedule, users are not charged for accessing judicial opinions. The plaintiff sought to certify a class of PACER users who were allegedly charged for that access. Although the court held that the plaintiff met the Rule 23(a) requirements, it determined that the case was not suitable as a class action because it failed to satisfy the predominance and superiority requirements under Rule 23(b). Specifically, there was insufficient guidance with respect to the definition of a "written opinion" and whether the E-Government Act, or merely the PACER Fee Schedule, mandated free access to such opinions. Moreover, the authoring judge of each document has the responsibility to determine whether it qualifies as a "written opinion." Therefore, the court concluded that the plaintiff's claims were not subject to determination by generalized proof but would instead require individualized inquiry to determine which documents they paid for and whether those documents were "written opinions." Due to the difficulties in managing the proposed class, the court found that the plaintiff could not satisfy the predominance and superiority requirements and denied class certification. Gorss Motels, Inc. v. Safemark Systems, LP, No. 6:16-cv-01638-Orl-31DCI, 2018 WL 1635645 (M.D. Fla. Apr. 5, 2018), 23(f) pet. granted Judge Gregory Presnell of the U.S. District Court for the Middle District of Florida denied class certification in connection with the plaintiffs' Telephone Consumer Protection Act (TCPA) claims. Defendant Wyndham Hotel Group (WHG), one of the world's largest hotel franchise companies, entered into franchise agreements with the named plaintiffs. WHG developed an approved supplier program by which it identified and approved third-party suppliers and service providers, and recommended such suppliers to its franchisees. The plaintiffs received two faxes containing such approved supplier information -- one in 2013 and one in 2015 -- and sought to certify two classes, one for each fax that the defendant sent promoting its hotel safety products purportedly in violation of the TCPA. The court held that the predominance requirement could not be satisfied because determining whether putative class members consented to receiving the faxes would require a series of individual factual determinations. Specifically, because the plaintiffs entered into franchise agreements by which they agreed the franchisor could offer assistance with purchasing items and provided their fax information to their respective franchisors several times during the course of their franchise relationships, the court concluded that the consent issue would require individualized analysis of each class member's franchise agreements and business dealings with the defendant. Because the court would need to engage in an individualized inquiry to determine which recipients had consented to the faxes, the court held that common issues failed to predominate and denied class certification. The plaintiffs recently filed an appeal to the U.S. Court of Appeals for the Eleventh Circuit. Townsend v. Monster Beverage Corp., 303 F. Supp. 3d 1010 (C.D. Cal. Mar. 20, 2018), 23(f) pet. denied Judge Virginia A. Phillips of the U.S. District Court for the Central District of California denied the plaintiffs' motion to certify a nationwide damages class asserting California consumer protection law claims based on the plaintiffs' purchase of beverages with four on-label statements alleged to be misleading. The court held that the plaintiffs failed to satisfy Rule 23(b)(3) because there were significant individualized issues relating to proof of materiality of the statements, and the plaintiffs' damages model was deficient. The court held that to show materiality under the statutes at issue, the plaintiffs must demonstrate that the statements were a factor in consumers' purchasing decision. However, the admissible portions of the plaintiffs' expert reports principally addressed how consumers understood the statements at issue but not how the challenged statements impacted their purchasing decisions. Thus, the plaintiffs failed to meet their burden to show that whether a reasonable consumer would consider any of the statements material presented a common question. Regarding damages, the court held that the plaintiffs failed to present a model that could determine the price premium attributable to the defendants' use of the challenged statements. The only admissible evidence addressed damages associated with one of the four statements, and that model was inadequate for several reasons. Most critically, the survey evidence supporting the damages claim suffered from "focalism bias" because the survey failed to include attributes deemed important by consumers, thereby artificially inflating the importance of the limited attributes presented in the survey. Loughlin v. Amerisave Mortgage Corp., No. 1:14-CV-03497-LMM-LTW, 2018 WL 1887292 (N.D. Ga. Mar. 19, 2018) Judge Leigh Martin May of the U.S. District Court for the Northern District of Georgia adopted the report and recommendation of Magistrate Judge Linda T. Walker and denied the plaintiffs' motion for class certification. The plaintiffs sought to certify two classes in connection with an alleged kickback scheme in violation of the Real Estate Settlement Procedures Act (RESPA) in which the defendant required customers to use a certain appraisal management company that shared profits with the defendant. One proposed class consisted of customers who did not receive notice of the affiliated business relationship, and the second consisted of customers who received a defective notice. RESPA does not apply to loans being used for a commercial purpose. The court held that the plaintiffs' classes were not ascertainable because the plaintiffs offered no feasible method by which they could determine which loans were provided for owner-occupied residential mortgages and not for any business, commercial or agricultural purposes. Because the defendant did not track how customers spent their loan proceeds and the plaintiffs did not address how to determine whether each putative class member's loan involved a "cash-out" option that was used for business purposes (and thus outside the scope of RESPA), the court concluded that the proposed classes were not ascertainable. Similarly, the court found that the classes could not satisfy the predominance requirement because individualized inquiries predominated over common questions, including whether: a class member received a loan covered by RESPA, the defendant actually referred the class member to the appraisal company, cash-out proceeds were used for a business purpose and damages were offset from reimbursed appraisal fees. Long v. Nationstar Mortgage LLC, No. 2:15-cv-01202, 2018 WL 1247479 (S.D. W. Va. Mar. 9, 2018) Chief Judge Thomas E. Johnston of the U.S. District Court for the Southern District of West Virginia denied certification of a putative statewide class in this case alleging illegal debt collection. The named plaintiff had been a class member in a previous suit making similar allegations against the same defendant and had not opted out of the settlement. The court first granted summary judgment on several of the plaintiff's claims, finding that they were based on conduct that was included within the initial settlement and therefore claim-precluded. The court ruled that one claim survived summary judgment because a reasonable jury could find that it was premised on actions that post-dated the original settlement. The court then denied class certification on the surviving claim, finding that commonality, typicality and adequacy were not met under Rule 23(a). First, it found classwide proceedings could not demonstrate common answers because the defendant serviced each class member's loan individually. Second, the court found that the plaintiff was not typical of the class or an adequate representative because proving the named plaintiff's claim would not advance the claims of class members whose claims predated the settlement, and a genuine issue of material fact remained as to whether the plaintiff was even part of the purported class. Therefore, the court denied class certification. Bridge v. Credit One Financial, 294 F. Supp. 3d 1019 (D. Nev. 2018) Judge Lloyd D. George of the U.S. District Court for the District of Nevada declined to certify a putative class action alleging violations of the Telephone Consumer Protection Act and various state consumer laws. The plaintiff alleged that after he called the defendant's automatic operator service on behalf of his mother on his telephone, the defendant called his number without his consent more than 100 times. Numerosity and adequacy were met, as the defendant only argued that the proposed class size was "unprecedented" in the large number of potential class members. The court identified two questions that would generate common answers, namely whether debt collection calls constituted nonemergency calls and whether the defendant acted negligently or knowingly and willfully toward the class. But the court noted that whether the defendant used an automated telephone dialing system was not a common question due to differences in vendors and equipment used, which would vary as to individual class members and calls. Typicality was not met, as the plaintiff had called Credit One in connection with his mother's account, and account holders have agreed that Credit One can contact them at telephone numbers used by the account holder to contact Credit One. Finally, the court held that the Rule 23(b)(3) requirements were not met, highlighting individualized issues of consent and the difficulty in both managing the class action and identifying the class members. Ward v. Apple Inc., No. 12-cv-05404-YGR, 2018 WL 934544 (N.D. Cal. Feb. 16, 2018), 23(f) pet. granted Judge Yvonne Gonzalez Rogers of the U.S. District Court for the Northern District of California refused to certify a class of iPhone consumers purportedly injured by exclusivity agreements between Apple and AT&T, which locked class members into renewing AT&T service or else losing the cellular capabilities of their iPhones. Apple did not dispute that the plaintiffs satisfied the threshold requirements of Rule 23(a) or the superiority requirement of Rule 23(b)(3) but argued that the class definition was overbroad and that the plaintiffs had not established predominance. The plaintiffs' expert offered theories of impact and damages based on a preliminary review of certain data collected and techniques employed by a different expert in a separate litigation involving Apple, which he claimed he could apply in the instant case "to reliably assess the existence and amount of damages to the Class members without the need for individual inquiry." The court concluded that the expert's declaration "lack[ed] any data-driven analysis" and that this failure to provide "properly analyzed, reliable evidence that a common method of proof exists to prove impact on a class-wide basis" or any semblance of a "functioning model that is tailored to market facts in the case at hand" was fatal to the plaintiffs' certification motion under Rule 23(b)(3). Because the plaintiffs' deficiency with respect to antitrust injury was dispositive as to predominance, the court declined to address the scope of the proposed class definition. Usry v. Equity Experts.org, LLC, No. 1:16-cv-010, 2018 WL 934897 (S.D. Ga. Feb. 16, 2018) Chief Judge J. Randal Hall of the U.S. District Court for the Southern District of Georgia denied the plaintiffs' motion for class certification alleging violations of the Fair Debt Collection Practices Act (FDCPA) and Georgia usury law in connection with excessive homeowners' association late fees. The defendant was hired to collect unpaid homeowners' fees for a subdivision and sought to charge various service fees to homeowners who were delinquent on their payments. The plaintiffs moved to certify a class consisting of all persons to whom the defendant "sent collection letters asserting claims for delinquent assessments, interest, and fees in violation of the FDCPA and the Georgia usury statute." The court held that because the class membership could only be ascertained by a determination of the merits of the case -- whether there was a "violation of the FDCPA and the Georgia usury statute" -- the class was an impermissible "fail-safe" class. Furthermore, the court held that the plaintiffs' proposed subclasses also failed because the classes were impermissibly defined in terms of the ultimate question of liability. Huu Nguyen v. Nissan North America, Inc., No. 16-CV-05591-LHK, 2018 WL 1831857 (N.D. Cal. Apr. 9, 2018), 23(f) pet. granted Judge Lucy H. Koh of the U.S. District Court for the Northern District of California denied certification of a class of consumers alleging the defendant deceptively sold vehicles with defective transmissions. The court found that predominance under Rule 23(b)(3) was not satisfied because the plaintiff failed to provide a damages model susceptible to classwide proof. The plaintiff proposed a "benefit of the bargain" damages model, based on the liability theory that the class overpaid for the vehicles as a result of the undisclosed, defective transmission. The model proposed damages equivalent to the cost to replace the allegedly defective transmission, allegedly representing the difference between the value of the vehicle as represented by Nissan and the value received. The court found this model "problematic," as it would only reflect the value differential if all class members deemed the defective part completely valueless. Instead, the court noted that class members could have derived additional value from the part by selling it, repurposing it or driving with it before replacing it. Indeed, the evidence showed that the plaintiff drove using the purportedly defective transmission for several thousand miles before replacement. Thus, under the proposed model, the class members would have received the full benefit of the bargain in addition to the monetary value of the defective part, which was an improper measure of damages. Questions of individual damages would thus overwhelm questions common to the class. The court also declined to certify a class under Rule 23(c)(4), as proceeding with a classwide liability determination would not address the need for individualized proof of damages. Decisions Permitting/Granting Class Certification Belcher v. Ocwen Loan Servicing, LLC, No. 8:16-cv-690-T-23AEP, 2018 WL 1701963 (M.D. Fla. Mar. 9, 2018), report and recommendation adopted in part, 2018 WL 1701964 (M.D. Fla. Apr. 2, 2018), appeal denied, No. 18-90011, 2018 WL 3198552 (11th Cir. June 29, 2018) (per curiam); Ocwen Loan Servicing, LLC v. Belcher, No. 18-90011, 2018 WL 3198552 (11th Cir. June 29, 2018) (per curiam) The U.S. Court of Appeals for the Eleventh Circuit (Rosenbaum, Jordan and Pryor, JJ.) denied the defendant's motion for leave to appeal the district court's order granting class certification. The plaintiff alleged that the defendant regularly sent collections requests to consumers threatening to foreclose their homes or charge loan fees. Because the consumers were involved in the defendant's affordable loan program, the plaintiff contended that these communications violated the Fair Debt Collection Practices Act (FDCPA) and the Florida Consumer Collection Practices Act (FCCPA). For the FDCPA claim, the plaintiff sought to certify a class of consumers who received foreclosure and increased fee collection communications from the defendant while participating in the defendant's affordable loan program, and also a subclass consisting of Florida consumers for the FCCPA claim. At the district court level, Magistrate Judge Anthony Porcelli of the U.S. District Court for the Middle District of Florida recommended that the motion for class certification be granted. Regarding the ascertainability requirement, Judge Porcelli, noting a circuit split, applied the Eleventh Circuit's stringent "administratively feasible" standard and found that the plaintiff's proposed class and subclass were not administratively feasible because they would require individualized inquiries to determine whether the defendant actually threatened foreclosure or incurrence of fees through oral communications. Instead, Judge Porcelli narrowed the class definition to plaintiffs that received written delinquency notices. Because the class members could self-identify to receiving a letter, the modified definition was ascertainable. Judge Porcelli found that the self-identification process and the existing business records of the defendant would allow the court to determine which class members acquired debt for a person, family or household purpose, as required by the FDCPA and FCCPA. The decision also turned on the Rule 23(b)(3) predominance requirement. The defendant argued that individual questions would predominate over common questions because each class member's unique communications with the defendant would have affected the class members' understanding of the affordable loan program and whether they were actually deceived by the delinquency notices. However, Judge Porcelli found that the objective "least sophisticated consumer" test would apply to determine whether a customer perceived a delinquency notice as threatening foreclosure and therefore not require individualized inquiry. The rest of the FDCPA and FCCPA claims could be determined by generalized proof. As a result, Judge Porcelli recommended that the class be certified, and Judge Steven Merryday adopted the recommendation. The Eleventh Circuit denied the defendant's motion for leave to appeal the district court's order granting class certification pursuant to Rule 23(f). First, the judges considered the importance of legal questions in the case. Namely, the defendant asked the court to decide the standard for ascertainability and to clarify whether FDCPA or FCCPA claims can satisfy the predominance requirement under Rule 23(b)(3). Despite acknowledging the circuit split on the ascertainability issue, the judges concluded that solving the issue would have no consequence on the case since the "administratively feasible" standard is the most stringent and the plaintiff's class would also pass muster under alternative standards. The judges felt that consideration of this issue was more appropriate for a typical appeal process, not immediate interlocutory review. Additionally, the judges refused to determine a universal predominance standard for FDCPA and FCCPA cases because this inquiry requires case-by-case analysis. Second, the judges considered whether there was "substantial weakness" in the district court's decision. Although the defendant argued that individualized inquiries would be required to identify class members and determine the purpose of the loan in contravention of the Rule 23 requirements, the Eleventh Circuit was satisfied with the district court's reliance on self-identification. Most importantly, the judges noted that the decision to certify the class was not the "death knell" for either party since the decision did not end the case. With the class certification stage being early in the litigation, the judges acknowledged that the record was largely incomplete. Without any impending events necessitating the need for immediate review, the judges held that interlocutory appeal was inappropriate here and denied the defendant's Rule 23(f) motion. Bradach v. Pharmavite, LLC, Nos. 16-56598, 17-55064, 2018 WL 2250508 (9th Cir. May 17, 2018) The U.S. Court of Appeals for the Ninth Circuit (Bea and Murguia, JJ., and Keeley, district judge sitting by designation) reversed the lower court's refusal to certify a class of purchasers of dietary supplements in reliance on the statement "Helps Maintain a Healthy Heart," which allegedly violated California consumer protection laws. First, the panel concluded that the plaintiff's state law claims were not pre-empted by the Federal Food, Drug, and Cosmetic Act (FDCA) because the "heart health" representation the plaintiff was challenging was a "structure/function" claim about the product's benefits. Thus, the lower court's finding that the plaintiff did not satisfy Rule 23's typicality requirement because his claims were pre-empted was in error. The panel further rejected the district court's conclusion that the proposed classes did not satisfy Rule 23's ascertainability, commonality, predominance and superiority requirements because it would be difficult to determine whether the putative class members viewed the statement as a disease prevention claim, which is pre-empted by the FDCA, or a structure/function claim, which is not. The panel observed that under California law, class members in certain consumer protection class actions are not required to prove individual reliance on allegedly misleading statements, but rather, whether members of the public are likely to be deceived. Thus, the district court's conclusion that it would need to inquire into the motives of each individual class member was premised on an error of law. The panel remanded to the district court to reconsider the class allegations. Flynn v. FCA US LLC, No. 15-cv-0855-MJR-DGW, 2018 WL 3303267 (S.D. Ill. July 5, 2018), 23(f) pet. denied Chief Judge Michael J. Reagan of the U.S. District Court for the Southern District of Illinois granted class certification, in part, to plaintiffs claiming the breach of implied warranties related to purchases of 2013-2015 Chrysler vehicles. More specifically, the plaintiffs alleged that the defendants designed and installed an "infotainment system" that is vulnerable to hackers seeking to take remote control of the affected vehicles and that unremedied vulnerabilities could allow hackers to access critical and noncritical vehicle systems. After dismissing a number of claims on summary judgment, the court analyzed the remaining claims under Rule 23. Both the nationwide and state classes satisfied the requirements of Rule 23(a). The "low hurdle" of commonality was satisfied, as the claims all rested on the same basic allegations of the defendants' actions leading up to and following the production of vehicles with the infotainment system. Typicality was also satisfied, as the claims arose from the same practice or course of conduct. The nationwide class, however, did not satisfy predominance because of the differences in state laws that underlay the Magnuson-Moss Warranty Act claims. State laws differed, for example, on requirements for privity and the definition of merchantability. However, the proposed state classes satisfied predominance, as there appeared to be "no difference" among class members with respect to proving merchantability and the defectiveness of the vehicles. Accordingly, the court granted class certification to the state classes alleging claims of the breach of implied warranties. Damus v. Nielsen, 313 F. Supp. 3d 317 (D.D.C. 2018) Judge James E. Boasberg of the U.S. District Court for the District of Columbia preliminarily certified a class of asylum seekers for the purpose of adjudicating their motion for a preliminary injunction. The plaintiffs argued that the Department of Homeland Security (DHS) had adopted a de facto categorical policy of denying asylum seekers parole while their adjudication was pending, and that this policy contravened internal DHS regulations in violation of the Administrative Procedure Act. First, the court noted that the class certification inquiry was less demanding where, as here, the plaintiffs sought only preliminary certification. Next, the court concluded that all members of the putative class had standing, noting that the defendants' objection that not all asylum seekers had been injured by the challenged policy ignored the fact that the class was expressly limited to those who had been. The court also concluded that a common question of law and fact united the class members' claims where the plaintiffs challenged a common policy rather than a series of individualized determinations by various field offices. The court further rejected a defense argument that differing motives could defeat commonality because the court did not need to find a common intention in order to certify the class where the plaintiffs alleged violation of a common policy. Finally, the court concluded that the putative class was sufficiently cohesive to be certified to seek injunctive relief under Rule 23(b)(2) for largely the same reasons that it had found the prerequisites of Rule 23(a) to be met. Bassett v. Credit Management Services, Inc., No. 8:17CV69, 2018 WL 3159791 (D. Neb. June 28, 2018), 23(f) pet. denied Judge Joseph F. Bataillon of the U.S. District Court for the District of Nebraska granted class certification to a proposed class alleging violations of the Fair Debt Collection Practices Act and the Nebraska Consumer Protection Act. Specifically, the plaintiff alleged that the defendant miscast its causes of action in county court cases to obtain attorney fees, wrongfully sought and obtained fees for in-house counsel, and wrongfully collected and kept prejudgment interest and attorneys' fees as undisclosed collection fees related to county court collection complaints. On review, the court granted certification to this Rule 23(b)(3) class. The class could be ascertained by review of the defendant's records and court records for the short period of time. Commonality was satisfied, as the court concluded that the "core of the plaintiff's suit [wa]s based on common facts and law." The court had already determined on summary judgment that the defendant violated the statutes in miscasting its complaint and obtaining attorney fees. The named plaintiff's complaint was typical of the class, as the plaintiff alleged that the defendant utilized the "same form complaint." Questions of law and facts common to the class members on liability also predominated over any questions that affected individual members, principally damages. Accordingly, the court granted class certification. Fitzhenry-Russell v. Dr. Pepper Snapple Group, Inc., No. 17-cv-00564 NC, 2018 WL 3126385 (N.D. Cal. June 26, 2018), 23(f) pet. denied Magistrate Judge Nathanael Cousins of the U.S. District Court for the Northern District of California granted the plaintiffs' motion to certify a class of California consumers who purchased Canada Dry ginger ale products marketed with a "Made From Real Ginger" claim, alleging violations of California consumer protection statutes because the products contained only a ginger derivative. The court held that the plaintiffs were sufficiently typical of the class, rejecting the defendants' argument that one of the named plaintiffs could not show she was misled because it was not clear from her deposition testimony that she ever noticed the "Real Ginger" claim and that she believed the product had ginger root in it even before the claim. The court gave the named plaintiff the benefit of the doubt on this issue, both because she remembered a commercial with the "Real Ginger" claim that made her think the product contained ginger root, and because she never specifically testified that she always believed the product contained ginger root. The court also held that Rule 23(b)(3) was satisfied. Individual issues did not predominate because a consumer perception survey showed that 78.5 percent of respondents believed that "Made From Real Ginger" meant the product contained ginger root. The court cited the defendants' own internal marketing documents as support that the representation was material to a reasonable consumer, because those documents showed that a quarter of consumers listed the "Real Ginger" claim as one of the top five reasons they bought the product. Reyes v. BCA Financial Services, Inc., No. 16-24077-CIV-GOODMAN, 2018 WL 3145807 (S.D. Fla. June 26, 2018) Magistrate Judge Jonathan Goodman of the U.S. District Court for the Southern District of Florida granted in part and denied in part the plaintiff's motion for class certification in connection with the defendant's alleged violation of the Telephone Consumer Protection Act (TCPA), which prohibits the use of automatic telephone dialing systems and artificial voice to call a person's cellphone without consent. The defendant, a debt collector for health care companies, utilized "predictive dialer" and "interactive voice response" (IVR) technologies to contact debtors. According to the plaintiff, the defendant dialed wrong numbers using these technologies, in violation of the TCPA. The court held that the requirements of Rule 23 were satisfied. The court first held that the class was ascertainable and administratively feasible. In support of its motion for class certification, the plaintiff offered an expert, a managing director of a litigation support and data analysis management company who previously acted as a project director for a number of class action administrations. The expert opined that it was feasible to match telephone numbers with the proper class members using the defendant's telephone records. In response, the defendant sought to introduce its own rebuttal expert to challenge the plaintiff's methodology and moved to strike the expert's opinion. The court concluded that the plaintiff's expert was reliable, largely because numerous district courts had relied on her opinions in the past, and that ascertainability was therefore satisfied. Second, the court held that predominance was satisfied, rejecting the defendant's arguments that whether an intended caller gave consent, whether a called number belonged to a cellphone and to the name of the subscriber on the telephone account would all require individualized proof. Third, the court found that a class action was the superior method of adjudicating the plaintiff's claims, noting that TCPA claims are well-suited for class treatment. Finally, the court rejected the defendant's argument that the proposed class was defined as an impermissible fail-safe class. As an initial matter, the court noted that the U.S. Court of Appeals for the Eleventh Circuit has not addressed whether a fail-safe class could be certified, and there was a split of authority among the circuit courts. Additionally, the court also held that the class definition did not clearly and neatly fit into the fail-safe class doctrine as to warrant denial of class certification. The court did amend the class definition by excluding class members who received IVR calls, since the plaintiff failed to allege that the defendant called her using this technology. After limiting the class definition, the court granted the plaintiff's motion for class certification. Greene v. Sears Protection Co., No. 15-CV-2546, 2018 WL 3104300 (N.D. Ill. June 25, 2018), 23(f) pet. denied Judge Jorge L. Alonso of the U.S. District Court for the Northern District of Illinois granted class certification, in part, to plaintiffs alleging that they entered into and paid for appliance-service agreements with the defendants that did not actually cover their products. The plaintiffs alleged that the defendants breached their agreements, were unjustly enriched and engaged in a deceptive business practice by selling "repair or replace" agreements to the plaintiffs even though the defendants had no intention of repairing or replacing the appliances covered by the agreements. The plaintiffs sought to certify a nationwide class on the breach of contract and unjust enrichment claims as well as a Pennsylvania class under that state's Unfair Trade Practices and Consumer Protection Law. On review, the court first rejected the defendants' request to exclude the plaintiffs' expert's damages opinion, finding that the expert -- in contrast to the defendants' argument -- sufficiently accounted for Sears' provision of repairs and was not speculative. The court then granted the motion for class certification, after limiting the temporal component of the proposed class definitions to comport with the relevant statutes of limitations governing the breach-of-contract claims. The court found that commonality was satisfied because the claims were predicated "on alleged conduct that was uniform as to all class members" -- i.e., that Sears sold policies for products that it did not have any intention of covering. Predominance was also satisfied for the nationwide class even though the defendants asserted that they had no uniform coverage position because the plaintiffs also submitted evidence supporting their position that the defendants engaged in standardized conduct. In other words, the court rejected the defendants' chief contention that coverage determinations are fact-intensive and individual, thereby defeating predominance. The court also disagreed with the defendants' argument that predominance could not be met as to the Pennsylvania consumer protection claims based on the statute's justifiable reliance element. According to the court, the reliance element could be proven on a classwide basis based on class members' mere purchase of the agreements at issue. Accordingly, the court granted class certification. 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