/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/181108.mbx C L A S S A C T I O N R E P O R T E R Thursday, November 8, 2018, Vol. 20, No. 224 Headlines 3M COMPANY: Grubb Files PI Class Action in Del. 3M COMPANY: Hardwick Sues Over Exposure Toxic Substances A&E PLUMBING: Aguirre Files Labor Class Action ACKER AUCTION: Faces Dominguez ADA Class Action in NY ADVANCED MICRO: 9th Circuit Appeal Filed in "Ha" Shareholder Suit AIG DIRECT: Abrantes Files Suit Over TCPA Breach ASSET RECOVERY: Bid to Dismiss Amended Meola FDCPA Suit Denied ATASCADERO STATE: Court Dismisses Pines Without Leave to Amend AUDI OF AMERICA: Nixon Files Suit Asserting ADA Breach AVALON HOLDINGS: Matusky Class Gets Conditional Certification AVIS BUDGET: Denial of Bid for Leave to Amend in Mendez Affirmed BASF AG: Bryn Hill Industries Files Anti-trust Class Action BCA FINANCIAL: Court Dismisses Ferrulli FDCPA Suit BENEFICIAL BANCORP: Dappollone Suit Challenges Sale to WSFS BENSUSAN RESTAURANT: Faces Fischler Suit in S.D. New York BIRCH TELECOM: Court Denies Certification of Huskey Class BLUE DIAMOND: Campbell-Clark Hits Misleading Product Labels BROADWAY ENERGY: Danconia Management Hits Illegally-faxed Ads BUCKHEAD PARKING: Steward Suit Remanded to Georgia State Court CAPITAL FITNESS: Court Denies Class Certification in Gooden Suit CAROLINA QUARRIES: Shortchanged on Pay, Workers Claim CELLSAVERS: Denied Overtime Pay, Wage Statements, Says Krasnow CHARLOTTE SCHOOL: Bid to File Under Seal in Barchiesi Granted CHEESECAKE FACTORY: Fails to Pay Proper Wages, Castillo Says CHRISTOFLE SILVER: Figueroa Files Class Suit Under ADA CHW GROUP: Moore Seeks to Stop Placement of Unconsented Calls CIRCA INC: Dominguez Suit Asserts ADA Violation COLLECTO INC: Dentinger Sues Over Debt Collection Practices COMMERCE ENERGY: $2.7MM Attys' Fees Awarded in Hurt FLSA Suit CONSULATE HEALTH CARE: Knapp Sues Over Forfeited Leave Benefits CORIUM INT'L: Monteverde & Assoc Probing Securities Laws Violations CVS HEALTH CORPORATION: Removes Hyams Suit to N.D. California DART CONTAINER: Fails to Pay Proper Wages, Prado Suit Alleges DAVOL INC: Removes MSP Suit From Miami-Dade Cir. to S.D. Florida DEUTSCHE BANK: Appeals Ruling in Securities Suit to 2nd Circuit DNC SERVICES: Sweigert Appeals Class Suit Dismissal DOUGH JOE: Espinoza Suit Seeks to Recover Overtime Pay Under FLSA DR. CATHERINE E. CRIM: Faces Smallwood et al. Suit in D. Oregon EC MOBILE: Faces Class Action in New York for ADA Breach ESCAPE THE ROOM: Figueroa Sues Over Blind-Inaccessible Web Site EUBA CORP: Does Not Properly Pay Workers, Buckles Suit Says FACEBOOK INC: Failed to Secure Users' Personal Info, Wiik Says FEDEX GROUND: Bid to Seal Doc in Padovano Denied w/o Prejudice FEDEX GROUND: Fails to Pay Overtime and Minimum Wages, Dolan Says FLAGSHIP FACILITY: De Orozco Suit Moved to S. D. California FLOWERS FOODS: Rios' Claims in Medrano Dismissed w/o Prejudice GATES CORPORATION: Lundine Seeks Conditional Class Certification GENERAL MILLS: Jackson Sues over Sale of Mislabeled Cereal GENESIS FS: Wright Sues over Marketing Telephone Calls GLK FOODS: Settlement in Jimenez Suit Has Final Approval HILLCREST PHARMACY: Advanced Dermotology Hits Illegally-faxed Ads HOWELL OILFIELD: Beck Sues Over Unpaid Overtime Wages HUAZHU GROUP: Hayes Sues Over Share Drop from Data Breach HUME ENTERPRISES: Milosevic Seeks to Recover Minimum and OT Wages INDEPENDENT RECOVERY: Furia Sues Over Debt Collection Practices J C TREE: Marte Seeks to Recover Overtime Pay Under FLSA, NYLL JAX DIRTWORKS: Accused by Gurney of Not Paying Overtime Wages JEFFREY CAMPBELL: Violates ADA, Kiler Suit Says JILDOR SHOES: Fischler Sues Footwear Retailer Under ADA JULIAN SPENCE: Heberle Seeks to Certify Class of Purchasers KROGER CO: Bid to Decertify Class in Hardesty FLSA Suit Denied LAKE CHASE CONDOMINIUM: Sues over Unlawful Towing of Vehicle LANGSTON COMPANIES: Bonds Sues to Recover Unpaid Overtime Wages LEGACY TREATMENT: Chudzinski Files Suit Over Retaliatory Discharge LIBERTY MUTUAL: Amended Childress TCPA Suit Dismissed w/ Prejudice LYFT INC: Accused by Ganji of Illegally Sending Unsolicited Texts MAC COSMETICS: Johnson Seeks Overtime Pay for Hrs. Worked Over 40 MARRIOTT INT'L: Alward Suit Seeks Overtime Pay for Pre-shift Work MDL 2741: Russ Suit v. Monsanto over Roundup Consolidated MONSANTO COMPANY: Johnson Suit Moved to N.D. California MONSANTO COMPANY: Miller et al. Suit Moved to N.D. California MORGENTHAL-FREDERICS: Nixon Asserts ADA Class Action in NY MOTOR VEHICLE: Court Narrows Claims in Heaton TCPA Suit NATHAN'S FAMOUS: Figueroa Sues Over Blind-Inaccessible Web Site NATIONAL DELIVERY: Sanchez-Lopez Suit Moved to E.D. North Carolina NATIONAL RESTORATIONS: Workers' Suit Seeks to Recover Overtime Pay NAVIENT CORP: Kahn Swick Probes Securities Laws Violations NAVIGATORS GROUP: Kent Files Securities Class Action NEILSON FINANCIAL: Layoff Notice Untimely, Merriweather Suit Says OMNI SPECIAL: Denied Meal Breaks and Overtime Pay, Garcia Suit Says OPKO HEALTH: Camhi Hits Share Price Drop Over Pump-and-Dump Scheme P&E IRON: Fails to Pay Overtime Wages, Zavalla Says PATIENT INNOVATION: Tomala's Bid to Certify Class Shelved PENN NATIONAL: Sued by Jessop in M.D. Florida for Violating FCRA PEOPLE'S UNITED: Illegally Broke Escrow Agreements, Investors Say PHYSICIAN LABORATORIES: Rivas Seeks to Certify Class PRIDE BUS: Scorcia Seeks Unpaid Wages under Labor Law PROFESSIONAL PLACEMENT: Court Stays Bid for Class Certification REAL AGENT PRO: Accused by Gomes Class Suit of Violating TCPA RELIASTAR LIFE: Advance Trust Sues Over Excessive Insurance Charges RUNNING SPECIALTY: Violates ADA, Nixon Suit Asserts SECRET STASH: Stinnett Sues over Telemarketing Text Messages SENOMYX INC: Kim Seeks to Halt Merger Deal; Seeks Financials SERGEANT'S PET: Bietsch Appeals Class Cert. Bid Denial to 7th Cir. SERVICE EXPERTS: Court Allows Amended Donato FLSA Suit SINCLAIR BROADCAST: Judge Consolidates 17 Antitrust Lawsuits SODEXO INC: Court Grants Summary Judgment Bid in Lazo Suit SPRINGFIELD, MA: Appeals Order in Disability Law Suit to 1st Cir. STEAK N SHAKE: Summary Judgment Bid in Drake FLSA Suit Denied STUCKY & LAUER: Settlement of Maloy Class Suit Approved TIMES SQUARE: Flores Sues over Tip Skimming TMT LITTLE ROCK: Dolphin Seeks Damages for FLSA Violation TREVENA INC: Faces Mastopietro Securities Suit in E.D. Pa. TUCKER ENERGY: Court Denies Conditional Certification in McElroy US ARMY: Court Wants Calixto Complaint, Class Cert. Bid Revised VERIZON PENNSYLVANIA: Compelled to Produce Docs in Monroeville Suit VITAL PHARMACEUTICALS: Madison Files Product False Labeling Suit WALMART INC: Reaches $65MM Settlement With Cashiers Over Seating WE BEGG TO DIFFER: Failed to Pay Minimum Wage, Hunt et al Say WRF SERVICES: Jackson Suit to Recover Unpaid Overtime Pay YAKULT USA: Court Nixes Torrent Class Certification Denial Appeal ********* 3M COMPANY: Grubb Files PI Class Action in Del. ----------------------------------------------- A class action lawsuit has been filed against The 3M Company for personal injury. The case is styled as Nicole Grubb, Laurence Curly for themself and on behalf of all others similarly situated, Plaintiffs v. The 3M Company formerly known as: Minnesota Mining and Manufacturing, Co, Tyco Fire Products L.P. successor in interest to The Ansul Company, Buckeye Fire Protection Co., Chemguard, National Foam, Inc., Kidde Fire Fighting, Inc. formerly known as: Chubb National Foam, Inc. formerly known as: National Foam Inc. individually and as successor in interest to National Foam, Inc., Kidde PLC, Inc. formerly known as: Williams US Inc. formerly known as: Williams Holdings, Inc. individually and as successor in interest to National Foam, Inc., Kidde-Fenwal, Inc. Individually and as successor in interest to National Foam, Inc., UTC Fire & Security Americas Corporation, Inc. formerly known as: GE Interlogix, Inc., Defendants, Case No. 1:18-cv-01711-UNA (D. Del., Oct. 30, 2018). The 3M Company, formerly known as the Minnesota Mining and Manufacturing Company, is an American multinational conglomerate corporation operating in the fields of industry, health care, and consumer goods. Tyco Fire Products L.P. manufactures fire protection systems. Buckeye Fire Equipment Company develops, manufactures, and markets fire protection products. It offers hand-held, wheeled, and spot protection extinguishers; and kitchen suppression systems, foam equipment and concentrates, mounting hardware, extinguishing agents, and spare parts. Chemguard, Inc. develops and manufactures fire suppression foams, equipment and systems, specialty foam pumps, and fluorosurfactant specialty chemicals for industrial, military, municipal, offshore, petrochemical/energy, transportation/freight, and airport hangar applications worldwide. Kidde Fire Fighting, Inc. develops, manufactures, and supplies firefighting products and systems. Kidde-Fenwal, Inc. designs, manufactures, and supplies fire protection systems for commercial, residential, and vehicle applications worldwide. UTC Fire & Security Americas Corporation, Inc. was incorporated in 2001 and is based in Arden Hills, Minnesota. UTC Fire & Security Americas Corporation, Inc. operates as a subsidiary of United Technologies Corp.[BN] The Plaintiff is represented by: R. Joseph Hrubiec, Esq. Napoli Shkolnik, LLC 919 North Market Street, Suite 1801 Wilmington, DE 19801 Phone: (302) 330-8025 Fax: (302) 295-4801 Email: rhrubiec@napolilaw.com 3M COMPANY: Hardwick Sues Over Exposure Toxic Substances -------------------------------------------------------- Kevin D. Hardwick Plaintiff, v. 3M Company, Dyneon, LLC, E.I. Du Pont De Nemours and Company, The Chemours Company LLC, Archroma Management LLC, Arkema, Inc., Arkema France, S.A., AGC, Inc. (f/k/a Asahi Glass Co. Ltd.), Daikin Industries Ltd., Daikin America, Inc., and Solvay Specialty Polymers, USA, LLC, Defendants, Case No. 18-cv-01185, (S.D. Ohio, October 4, 2018), seeks injunctive, equitable, and declaratory relief resulting from negligence. Hardwick has worked as a firefighter for more than forty years, during which he has used firefighting foams containing synthetic, toxic per- and polyfluoroalkyl substances, used equipment/gear treated and/or coated with materials containing and/or contaminated with the same. Defendants marketed, developed, manufactured, distributed released, trained users, produced instructional materials, sold and/or otherwise handled and/or used polyfluoroalkyl substances. These allegedly resulted in various adverse health effects among multiple species of laboratory animals, including toxic effects to the liver, testes, adrenals, and other organs and bodily systems, notes the complaint. [BN] Plaintiff is represented by: David J. Butler, Esq. TAFT STETTINIUS & HOLLISTER LLP 65 East State Street, Suite 1000 Columbus, OH 43215-4213 Tel: (614) 221-2838 Fax: (614) 221-2007 Email: dbutler@taftlaw.com - and - Robert A. Bilott, Esq. TAFT STETTINIUS & HOLLISTER LLP 425 Walnut Street, Suite 1800 Cincinnati, OH 45202-3957 Tel: (513) 381-2838 Fax: (513) 381-0205 Email: bilott@taftlaw.com - and - Ned McWilliams, Esq. Levin Papantonio Thomas Mitchell Rafferty & Proctor P.A. 316 South Baylen Street Pensacola, FL 32502 Tel: (850) 435-7138 Email: nmcwilliams@levinlaw.com A&E PLUMBING: Aguirre Files Labor Class Action ---------------------------------------------- A class action lawsuit has been filed against A & E Plumbing Corp. pursuant to the Fair Labor Standards Act. The case is styled as Jean Carlos Aguirre, Hector Aguilar, Edwin Palacios, Elvis Palacios on behalf of themselves and all others similarly situated, Plaintiffs v. A & E Plumbing Corp., A & E Plumbing and Heating Corp., Dimitri Tsioulidis, Nico Tsioulidis, Estella Tsioulidis jointly and severally, Defendants, Case No. 1:18-cv-06086 (E.D. N.Y., Oct. 31, 2018). A & E Plumbing And Heating Corporation is a privately held company in Whitestone, NY and is a Single Location business, categorized under Plumbers and Plumbing Contractors.[BN] The Plaintiffs appear pro se. ACKER AUCTION: Faces Dominguez ADA Class Action in NY ----------------------------------------------------- A class action lawsuit has been filed against Acker Auction, Inc. The case is styled as Yovanny Dominguez on behalf of himself and all others similarly situated, Plaintiff v. Acker Auction, Inc., Defendant, Case No. 1:18-cv-10115 (S.D. N.Y., Oct. 31, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. Acker Merrall & Condit Company, Inc. engages in the sale of wines in America. It offers auction, education, tasting, and wine club services.[BN] The Plaintiff is represented by: Joseph H. Mizrahi, Esq. Cohen & Mizrahi LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Phone: (917) 299-6612 Fax: (929) 575-4195 Email: joseph@cml.legal ADVANCED MICRO: 9th Circuit Appeal Filed in "Ha" Shareholder Suit ----------------------------------------------------------------- Plaintiff Jake Ha filed an appeal from a court ruling in the lawsuit styled Jake Ha v. John Caldwell, et al., Case No. 4:15-cv-04485-YGR, in the U.S. District Court for the Northern District of California, Oakland. As previously reported in the Class Action Reporter, the lawsuit is brought against Advanced Micro Devices, Inc., and certain directors and officers for their alleged failure to implement necessary policies and protocols to ensure the accurate dissemination of material information to its shareholders and the broader investment community, concerning a Company product called Llano. Advanced Micro Devices, Inc., is a corporation that designs and distributes technology for high-tech appliances such as personal computers, tablets and game consoles. The appellate case is captioned as Jake Ha v. John Caldwell, et al., Case No. 18-17005, in the United States Court of Appeals for the Ninth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Transcript must be ordered by November 14, 2018; -- Transcript is due on December 14, 2018; -- Appellant Jake Ha's opening brief is due on January 23, 2019; -- Appellees Advanced Micro Devices, Inc., John E. Caldwell, Henry W.K. Chow, Bruce L. Claflin, Nora M. Denzel, Nicholas M. Donofrio, Martin L. Edelman, John R. Harding, Joseph A. Householder, Michael J. Inglis, Lisa T. Su and Ahmed Yahia's answering brief is due on February 22, 2019; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Plaintiff-Appellant JAKE HA, derivatively and on behalf of himself and all others similarly situated, is represented by: Lionel Z. Glancy, Esq. Kara Wolke, Esq. GLANCY BINKOW & GOLDBERG, LLP 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 Telephone: (310) 201-9150 Facsimile: (310) 201-9160 E-mail: lglancy@glancylaw.com kwolke@glancylaw.com - and - Matthew M. Houston, Esq. GLANCY PRONGAY & MURRAY LLP 712 5th Avenue, 31st Floor New York, NY 10019 Telephone: (212) 935-7400 E-mail: mhouston@glancylaw.com - and - Avraham Wagner, Esq. THE WAGNER FIRM 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 Telephone: (310) 491-7949 E-mail: avi@thewagnerfirm.com Defendants-Appellees JOHN E. CALDWELL, HENRY W.K. CHOW, BRUCE L. CLAFLIN, NORA M. DENZEL, NICHOLAS M. DONOFRIO, MARTIN L. EDELMAN, JOHN R. HARDING, JOSEPH A. HOUSEHOLDER, MICHAEL J. INGLIS, LISA T. SU, AHMED YAHIA and ADVANCED MICRO DEVICES, INC., Nominal Defendant, are represented by: Matthew Rawlinson, Esq. LATHAM & WATKINS LLP 140 Scott Drive Menlo Park, CA 94025 Telephone: (650) 328-4600 E-mail: matt.rawlinson@lw.com - and - Melanie Blunschi, Esq. LATHAM & WATKINS LLP 355 South Grand Avenue, Suite 100 Los Angeles, CA 90071-1560 Telephone: (213) 485-1234 E-mail: melanie.blunschi@lw.com - and - Jason C. Hegt, Esq. LATHAM & WATKINS LLP 885 Third Avenue New York, NY 10022-4834 Telephone: (212) 906-1200 E-mail: jason.hegt@lw.com - and - Patrick Edward Gibbs, Esq. COOLEY LLP 3175 Hanover Street Palo Alto, CA 94304 Telephone: (650) 843-5535 E-mail: pgibbs@cooley.com AIG DIRECT: Abrantes Files Suit Over TCPA Breach ------------------------------------------------ Jogert Abrantes, individually and on behalf of all others similarly situated, Plaintiff, v. AIG Direct Insurance, Inc., and Does 1 through 10, inclusive, and each of them, Defendants, Case No. 1:18 at-00799 (E.D. Cal., October 31, 2018) seeks damages and any other available legal or equitable remedies resulting from the illegal actions of Defendant in negligently, knowingly, and/or willfully contacting Plaintiff on Plaintiff's cellular phone in violation of the Telephone Consumer Protection Act. The Defendant used an "automatic Phone dialing system" to place its call to Plaintiff seeking to solicit its services. The Defendant did not possess Plaintiff's "prior express consent" to receive calls using an automatic Phone dialing system or an artificial or prerecorded voice on his cellular Phone, says the complaint. Plaintiff is a natural person residing in Fresno, California. AIG Direct Insurance, Inc. is a life insurance company.[BN] The Plaintiff is represented by: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. Meghan E. George, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St., Suite 780 Woodland Hills, CA 91367 Phone: 323-306-4234 Fax: 866-633-0228 Email: tfriedman@ toddflaw.com abacon@ toddflaw.com mgeorge@toddflaw.com ASSET RECOVERY: Bid to Dismiss Amended Meola FDCPA Suit Denied -------------------------------------------------------------- Judge Margo K. Brodie of the U.S. District Court for the Eastern District of New York denied the Defendants' motion to dismiss the case, LEONARDO MEOLA, Plaintiff, v. ASSET RECOVERY SOLUTIONS, LLC, and BUREAUS INVESTMENT GROUP PORTFOLIO NO. 15, LLC, Defendants, Case No. 17-CV-1017 (MKB) (RER) (E.D. N.Y.). Meola commenced the putative class action against Defendants Asset Recovery Solutions, LLC ("ARS") and Bureaus Investment Group Portfolio No. 15, LLC ("BIG") on Feb. 23, 2017. On Aug. 18, 2017, the Plaintiff filed an Amended Complaint against ARS and BIG, alleging violations of the Fair Debt Collection Practices Act ("FDCPA"). On Nov. 28, 2016, ARS sent the Plaintiff a letter dated Nov. 28, 2016, seeking to collect a credit card debt. BIG authorized ARS to send the Letter. According to the Plaintiff, the Letter does not accurately reflect the debt amount because the financial information listed is inconsistent and does not]make sense. He contends that a debt that was $10,848.95 at chargeoff that has accrued interest of $10,848.95 and miscellaneous fees of $1,214.50 cannot possibly have a current balance of $12,063.45. In addition, the Letter also does not contain a warning that the debt may increase in the future due to interest. The Plaintiff alleges that BIG or its affiliate, The Bureaus, Inc. ("TBI"), provided the amounts described to ARS. The Defendants moved to dismiss the Complaint for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The Plaintiff opposed the motion. On April 5, 2018, the Court referred the Defendants' motion to Magistrate Judge Ramon E. Reyes for a report and recommendation. By report and recommendation dated Aug. 15, 2018 ("R&R"), Magistrate Judge Reyes recommended that the Court denies the Defendants' motion to dismiss the Amended Complaint. He found that that the Amended Complaint sufficiently pleads violations by ARS and a claim of vicarious liability against BIG. He also found that the Plaintiff sufficiently alleges that the Letter violated the FDCPA because the least sophisticated consumer would be unable to deduce the actual amount of the debt as of the date of the letter, and would not know whether interest or fees on the debt would continue to accrue in the future. Judge Reyes further found that the Plaintiff sufficiently alleges a claim of vicarious liability against BIG because it is a debt collector for purposes of the FDCPA, and is engaged in a principal-agent relationship with ARS to collect debts on BIG's behalf, and that ARS was acting within the scope of the authority granted to it by BIG. On Aug. 29, 2018, the Defendants timely filed an objection to the R&R against BIG. On Sept. 12, 2018, the Plaintiff filed a response to the Defendants' objection. The Defendants also urge the Court to take judicial notice of an alleged fact found by the court in Zambrana v. Pressler & Pressler, LLP, No. 16-CV-2907, (S.D.N.Y. Dec. 2, 2016), that TBI is BIG's master servicer. They contend that the court in Zambrana found that TBI is the master servicer of BIG. No party objected to Judge Reyes' recommendation that the Court denies the Defendants' motion to dismiss the claim against ARS. Judge Brodie has reviewed the unopposed portion of the R&R and, finding no clear error, she will adopt R&R. Accordingly, she will deny the Defendants' motion to dismiss the Amended Complaint against ARS. The Defendants object to Judge Reyes' recommendation that the Court denies the motion to dismiss the claim against BIG. The Defendants argue that Judge Reyes erred by failing to take judicial notice of the fact that TBI is BIG's master servicer and that as such, an agency relationship exists between TBI and BIG and not between ARS and BIG. Had Judge Reyes taken judicial notice of the relationship between TBI and BIG, the Defendants argue that the Plaintiff's claim against BIG under a theory of vicarious liability would fail. Judge Brodie declines to take judicial notice of the factual findings made in Zambrana because facts adjudicated in a prior case do not meet either test of indisputability contained in Rule 201(b): they are not usually common knowledge, nor are they derived from an unimpeachable source. The "fact" the Defendants point to in Zambrana is a quote from the Plaintiff's amended complaint. Neither the Plaintiff's mere allegation in Zambrana, nor the Court's reliance on that allegation, meet the requirements of Rule 201, which is limited to facts that are either well-known or readily verifiable, and the sources of which cannot be reasonably questioned. For the foregoing reasons, Judge Brodie adopted Magistrate Judge Reyes' R&R, and denied the Defendants' motion to dismiss the Amended Complaint. A full-text copy of the Court's Sept. 28, 2018 Memorandum and Order is available at https://is.gd/bmoRyz from Leagle.com. Leonardo Meola, individually and on behalf of a class, Plaintiff, represented by Dan Shaked -- shakedlawgroup@gmail.com -- Shaked Law Group, P.C. & Tiffany N. Hardy -- thardy@edcombs.com -- Edelman Combs Latturner & Goodwin LLC. Asset Recovery Solutions, LLC & Bureaus Investment Group Portfolio No. 15, LLC, Defendants, represented by Dara C. Tarkowski -- dara.tarkowski@actuatelaw.com -- Actuate Law, LLC, pro hac vice, Scott Michael Kessler -- scott.kessler@akerman.com -- Akerman Senterfitt LLP, Benjamin Reid Joelson -- benjamin.joelson@akerman.com -- Akerman Senterfitt, LLP & Mark S. Lafayette -- mark.lafayette@akerman.com -- Akerman Senterfitt LLP. ATASCADERO STATE: Court Dismisses Pines Without Leave to Amend -------------------------------------------------------------- In the case, MICHAEL T. PINES, Plaintiff, v. DIR. of ATASCADERO STATE HOSPITAL, et al., Defendants, Case No. CV 18-6854 RGK (MRW) (C.D. Cal.), Magistrate Judge R. Gary Klausner of the U.S. District Court for the Central District of California denied the Plaintiff's request for in forma pauperis treatment and dismissed the action without leave to amend. The Plaintiff is currently housed at the state mental health facility in Atascadero, California. He filed a civil rights class action (originally presented in the federal court in the Northern District of California, later transferred to the Central District for venue reasons) alleging that he and other similarly situated inmates are being held illegally. He also submitted an application to proceed in forma pauperis. The Plaintiff is a disbarred attorney with considerable admitted mental health problems. He purports to bring the action on behalf of a class of inmates and detainees in state hospitals. The gist of his claim is that individuals at the facility are allegedly held beyond their proper release date. The Plaintiff estimates that the class he wishes to represent consists of more than 100,000 members. The Plaintiff's original complaint was effectively screened twice. District Judge Illston of the Northern District of California noted several key problems with the complaint in an order transferring the case to the Central District. When the action was opened in the district, Magistrate Judge Wilner issued an order to show cause why the action should not be dismissed for the reasons stated in Judge Illston's order and additional observed defects with the complaint. Those reasons collectively included: the Plaintiff's inability to represent a class of individuals; the conclusory nature of the complaint; and the failure to plead specific facts regarding his claims. After the Court issued the OSC, the Plaintiff filed a First Amended Complaint. The FAC purports to represent the same class of state hospital detainees and inmates. The amended complaint offers no specific facts about the Plaintiff or any of the detainees. Neither the FAC nor the Plaintiff's response to the OSC addresses the propriety of a pro se litigant acting on behalf of a class as flagged in the Illston and Wilner screening orders. Magistrate Judge Klausner explains that (i) a pro se litigant has no ability to bring a class action on behalf of others; (ii) a complaint may be dismissed for failure to state a claim based on the lack of a cognizable legal theory or the absence of facts alleged; and (iii) a pleading will be rejected if it offers labels, conclusions, or a formulaic recitation of the elements of a cause of action. The Magistrate finds that both of the Plaintiff's complaints must be dismissed. The Plaintiff vaguely claims that a massive group of individuals are being held illegally in state mental health facilities. Yet, in neither his original complaint nor his amended pleading does he offer any facts or comprehensible information to support the contention that he or anyone else is improperly in custody. As a result, the complaints patently fail to state a claim upon which relief could plausibly be granted. And, despite the clear statements of the screening judges, Plaintiff continues to assert class claims even though he has no ability or entitlement to do so. The Plaintiff made no effort to explain why he continued to assert his frivolous request to represent others in this way. The Magistrate concludes that these factors warrant dismissal of the action without further leave to amend. The Plaintiff's violation of Rule 41 also supports dismissal of the action. Despite clear instructions from the Court, the Plaintiff's amended complaint (a) reasserted his frivolous class claim, (b) failed to give a colorable reason for its inclusion, and (c) gave fewer facts about the claim than its inadequate predecessor pleading. The public, the court, and any to-be-served defendant are entitled to be free of such frivolous litigation. To that end, the Plaintiff offered no non-speculative pleading basis to conclude that he or others are truly being held in violation of the Constitution. And, given the Plaintiff's personal circumstances and patent inability to properly plead a claim in light of the Court's instructions, no remedy short of dismissal seems appropriate to advance the disposition of the case. Therefore, Magistrate Judge Klausner denied the Plaintiff's request for in forma pauperis status, and denied without leave to amend the action. A full-text copy of the Court's Sept. 28, 2018 Order is available at https://is.gd/5OGlRm from Leagle.com. Michael T Pines, Plaintiff, pro se. AUDI OF AMERICA: Nixon Files Suit Asserting ADA Breach ------------------------------------------------------ Audi of America, LLC is facing a class action lawsuit in New York under the Americans with Disabilities Act. The case is styled as Donald Nixon on behalf of himself and all others similarly situated, Plaintiff v. Audi of America, LLC, Defendant, Case No. 1:18-cv-06097 (E.D. N.Y., Oct. 31, 2018). Audi of America, LLC owns and operates Audi brand car dealerships in the United States. It offers sedan, SUV, crossover and wagon, coupe, and convertible model cars. The company also offers briefcases and bags, apparel, golf and tennis, vehicle, and other accessories and products online, as well as through stores.[BN] The Plaintiff is represented by: Jonathan Shalom, Esq. Shalom Law, PLLC 124-04 Metropolitan Avenue Kew Gardens, NY 11374 Phone: (516) 807-1748 Email: jonathan.shalom25@gmail.com AVALON HOLDINGS: Matusky Class Gets Conditional Certification ------------------------------------------------------------- In the case, JESSICA MATUSKY, et al., Plaintiffs, v. AVALON HOLDINGS CORPORATION, et al., Defendants, Case No. 4:17CV1535 (N.D. Ohio), Judge Benita Y. Pearson of the U.S. District Court for the Northern District of Ohio, Eastern Division, granted the Plaintiffs' motion for conditional class certification. The Plaintiffs move the Court to conditionally certify the case at bar as a Fair Labor Standards Act ("FLSA") collective action and direct that notice be sent by U.S. mail and email to similarly situated persons defined as all present and former hourly banquet employees of the Defendants during the period of three years preceding the commencement of the action to the present for whom the Defendants took a tip credit. In July 2017, Matusky brought the (1) collective action under the FLSA for minimum wage pay and (2) class action under the Ohio Minimum Fair Wage Standards Act and Pennsylvania Minimum Wage Act for minimum wage pay. An Amended Collective Action Complaint, which adds Opt-in Plaintiffs John Stahl and Zackary Kerr, was deemed served and filed as of Feb. 22, 2018. The Amended Collective Action Complaint alleges additional facts obtained through discovery and reflects depositions which concluded on Feb. 8, 2018. The amended pleading also reduces the number of allegations and claims at issue by removing the Fed. R. Civ. P. 23 class action allegations entirely. It narrows the focus of the case at bar to tip credit violations, already alleged in the Complaint, for both regular and overtime hours. It further restricts the class definition to the tipped banquet servers at the Defendants' four banquet facilities in Ohio and Pennsylvania based on the testimony of Avalon Holding's designated Rule 30(b)(6) representative that there are other tipped employees employed elsewhere in Defendants' organization. The Plaintiff's FLSA claims are based on their allegations that Avalon improperly takes a tip credit the day of an event for work they perform before and after the banquet or party. The Plaintiffs assert that, during those times, the duties they perform are non-tipped duties and that work takes up more than 20% of their workweek. In the three-year period preceding the filing of the Complaint in the action, the Defendants employed approximately 242 people as banquet servers, banquet bartenders, and banquet bussers. Matusky worked for the Defendants as a banquet server, a banquet bartender, and as a set-up person from October 2014 to April 2017. While working as a banquet server, Ms. Matusky was paid at a rate of $6.50 per hour and Defendants used a tip credit to make up the difference between that rate and the minimum wage. While working as a banquet bartender, Ms. Matusky was paid at a rate of $4.05 or $4.08 per hour, depending upon the Ohio minimum wage then in effect, during the time she worked for Defendants and the defendants used a tip credit to make up the difference between this rate and the minimum wage. Opt-in Plaintiff Stahl worked for the Defendants as a banquet server or busser and a set-up person from May, 2015 to May, 2017. While working as a banquet server or busser, he was paid at a rate of $6.50 per hour and the Defendants used a tip credit to make up the difference between that rate and the minimum wage. Opt-in Plaintiff Zachary Kerr worked for the Defendants in various positions, including banquet server and banquet bartender from November, 2014 to present. While working as a banquet bartender, he was paid at a rate of $4.05 or $4.08 per hour, depending upon the Ohio minimum wage then in effect, during the time he worked for Defendants and the defendants used a tip credit to make up the difference between this rate and the minimum wage. The Defendants' time-clock system permits employees to clock in and out under different categories of work, including banquet server, banquet busser, banquet bartender, and set-up. If an employee clocked in under set-up on the day before or after an event, they would be paid the applicable minimum wage rate. The Defendants argue that the Plaintiffs do not have sufficient knowledge as to the similarity of the employees located at Defendants' Pennsylvania location, Avalon Country Club at Sharon, Inc., because Matusky and Stahl only worked there twice, and Kerr was never employed at that location. Judge Pearson holds Klingle's declarations were not limited to the running of Avalon's Ohio locations, but described a general policy for payment. Though the facts may vary slightly, the basis of the claim does not vary from state to state. Therefore, the Judge will not exempt Avalon's Pennsylvania employees from the conditional certification. Judge Pearson granted the Plaintiffs' Motion for Conditional Certification and Court-Authorized Notice. She directed the parties to meet and confer in good faith for the purpose of negotiating the language of the notice that is to be issued to the proposed collective and the procedure for issuing the notice. If they are able to agree upon the form of the notice, within 10 days of the date of this Memorandum of Opinion and Order, the parties will submit a joint proposed notice for the Court's final approval. If the parties are unable to agree, the Plaintiffs will submit a notice and any objections remaining after conference will be indicated by the Defendants in a redlined version showing its proposed alterations. Thereafter, the Court will resolve the conflict. The Court further directed that, within 30 days of the approval of the form of the notice by the Court, said notice will be sent to all the potential collective members. At a later date, the Court will separately issue a ruling on the Defendants' Motion for Summary Judgment. A full-text copy of the Court's Sept. 28, 2018 Memorandum of Opinion and Order is available at https://is.gd/9Ns5X4 from Leagle.com. Jessica Matusky, On behalf of herself and all others similarly situated, John R. Stahl & Zackary Kerr, Plaintiffs, represented by Joseph F. Scott -- jscott@ohiowagewlawyers.com -- Scott & Winters, Ryan A. Winters -- rwinters@ohiowagelawyers.com -- Scott & Winters & Kevin M. McDermott, II, Scott & Winters. Avalon Holdings Corporation, Avalon Resort and Spa LLC, Avalon Golf and Country Club, Inc., Avalon Country Club at Sharon, Inc. & Ronald Klingle, Defendants, represented by Anastasia J. Wade -- awade@brouse.com -- Brouse McDowell, Peter B. Grinstein, Nadler, Nadler & Burdman & Christopher John Carney -- ccarney@brouse.com -- Brouse McDowell. AVIS BUDGET: Denial of Bid for Leave to Amend in Mendez Affirmed ---------------------------------------------------------------- In the case, JOSE MENDEZ, individually and on behalf of all others similarly situated, Plaintiff, v. AVIS BUDGET GROUP, INC., et al., Defendants, Civil Action No. 11-6537 (JLL) (D. N.J.), Judge Jose L. Linares of the U.S. District Court for the District of New Jersey affirmed the Order of the Magistrate Judge, entered on Aug. 15, 2018, denying the Defendants' motion pursuant to Rule 15(a)(2) for leave to amend their answer to assert a late statute-of-limitations defense and a late voluntary-payment-doctrine defense. Judge Linares has reviewed the complaint, all of the papers underlying the August 2018 Order, and the papers filed in support of and in opposition to the instant appeal. He will resolve the appeal upon a review of the papers and without oral argument. Accordingly, he affirmed the August 2018 Order. The action has been brought on behalf of those who allegedly were wrongfully charged for non-discounted tolls and for convenience fees when they rented vehicles equipped with an electronic system to pay tolls known as "e-Toll." It was filed on Nov. 7, 2011, and it asserted in four separate paragraphs that the "e-Toll" systems at issue were installed in the rented vehicles beginning in 2006. The defendants filed their initial answer on April 27, 2012, and asserted an estoppel defense therein. The fact discovery period in the action closed on June 5, 2014, and the expert discovery period closed on Jan. 30, 2016. On Nov. 17, 2017, the Court granted the Plaintiff's motion to certify the action as a class action for a class period beginning on April 1, 2007 and ending on Dec. 31, 2015 for a nationwide class, a Florida subclass, and a New Jersey subclass. On Jan. 12, 2018, the Defendants moved before the Magistrate Judge to amend their answer to assert a statute-of-limitations defense and a voluntary-payment doctrine defense for the first time in the litigation, and they argued that those defenses were not applicable until class claims were certified. As to the statute of limitations, they argued that the District Court did not provide guidance on what state's law would apply to the nationwide class members' causes of action. As to the voluntary payment doctrine, which they argue is a form of estoppel, the Defendants assert that there may be many class members who were aware of the charges at issue and paid them voluntarily, and thus those class members should be estopped from now claiming otherwise. The Magistrate Judge denied the Defendants' motion for leave to amend the answer. In so doing, the Magistrate Judge noted that the Defendants had unduly delayed in filing their motion until: (a) more than 5 1/2 years after they filed their initial answer; (b) 3 1/2 years after the deadline for the completion of fact discovery; and (c) almost 2 years after the deadline for the completion of expert discovery. The Magistrate Judge also found that the Defendants engaged in undue delay in asserting the voluntary-payment-doctrine defense, as they were well aware of the evidence that justified the assertion of that defense when fact discovery concluded in June 2014, which was 3 1/2 years before they finally moved to amend. The August 2018 Order did not address matters that were dispositive, and thus such an Order could be entered by the Magistrate Judge. Judge Linares finds that the determinations of the Magistrate Judge in the August 2018 Order were not clearly erroneous, and they were not the result of either a mistake or the misapplication of applicable law. It is well-settled that an affirmative defense should, if not pleaded in the answer, be raised at the earliest practicable, or possible, or feasible, moment thereafter. The Magistrate Judge did not abuse his discretion in denying leave to amend the answer based on the Defendants' undue delay in asserting the two aforementioned defenses at this late juncture in the litigation. Although not noted by the Magistrate Judge in the August 2018 Order, Judge Linares points out that the complaint, which was filed in 2011, asserts in four separate paragraphs that the allegedly offending electronic system for paying tolls was put into use in the rented vehicles by the Defendants as of 2006. Furthermore, even though the claims that applied to the named Plaintiff in the action may not have been barred by the relevant statute of limitations, a plain reading of the complaint itself reveals that the named plaintiff was attempting to bring a class action on behalf of all affected class members. Thus, the Defendants were on notice as of 2011 that the statute-of-limitations defense might indeed apply in the action, as the contours of the class period and the potential class members could possibly extend as far back as 2006. In addition, the Defendants should have been on notice that the voluntary payment doctrine could apply based on any complaints that they had received about unwanted charges in fees over the five years preceding the filing of the complaint in 2011. As a result, these defenses were not merely hypothetical, and it would have been reasonable for the Defendants to assert them in their initial answer in 2012 or soon thereafter. In conclusion, the Judge holds that the Magistrate Judge committed neither an abuse of discretion nor an error of law in making the determinations set forth in the August 2018 Order. Accordingly, he affirmed the Magistrate Judge's August 2018 Order, from which the appeal has been filed. The Clerk of the Court will designate the appeal as terminated. A full-text copy of the Court's Sept. 28, 2018 Opinion and Order is available at https://is.gd/VEcnHg from Leagle.com. JOSE MENDEZ, Individually and On Behalf Of All Others Similarly Situated, Plaintiff, represented by -- kcarroll@litedepalma.com -- LITE DEPALMA GREENBERG, LLC, SUSANA CRUZ HODGE -- scruzhodge@litedepalma.com -- LITE DEPALMA GREENBERG LLC & JOSEPH J. DEPALMA -- jdepalma@litedepalma.com -- LITE, DEPALMA, GREENBERG, LLC. AVIS BUDGET GROUP, INC., doing business as BUDGET RENT A CAR SYSTEM, INC., AVIS RENT A CAR SYSTEM, LLC & HIGHWAY TOLL ADMINISTRATION, LLC, Defendants, represented by PAUL J. HALASZ -- phalasz@daypitney.com -- DAY PITNEY LLP. BASF AG: Bryn Hill Industries Files Anti-trust Class Action ----------------------------------------------------------- An anti-trust class action suit has been filed against BASF AG, et al. The case is styled as Bryn Hill Industries, Inc. on behalf of itself and all others similarly situated, Plaintiff v. BASF AG, BASF CORP., BAYER A.G., BAYER CORP., COVESTRO AG, COVESTRO LLC, DOW CHEMICAL CO., DOWDUPONT INC, HUNTSMAN CORP., HUNTSMAN CORP., HUNTSMAN INTERNATIONAL LLC, MCNS POLYURETHANES USA INC, MITSUI CHEMICALS, INC, MITSUI CHEMICALS AMERICA, INC, MITSUI CHEMICALS & SKC POLYURETHANES, INC, WANHUA CHEMICAL GROUP CO. LTD, WANHUA CHEMICAL AMERICA CO. LTD, WANHUA CHEMICAL US HOLDING, INC., Defendant, Case No. 2:18-cv-01454-LPL (W.D. Penn., Oct. 30, 2018). BASF SE is a German chemical company and the largest chemical producer in the world. The BASF Group comprises subsidiaries and joint ventures in more than 80 countries and operates six integrated production sites and 390 other production sites in Europe, Asia, Australia, the Americas and Africa. Covestro AG manufactures polymers and high performance plastics. The Company manufactures, markets, and distributes coatings, adhesives, insulating materials, sealants, polycarbonates, and polyurethanes. Covestro markets its products to industries including automotive, construction, health, electronics, and medical engineering. The Dow Chemical Company manufactures and sells chemical materials worldwide. Huntsman Corporation is an American multinational manufacturer and marketer of chemical products for consumers and industrial customers. Huntsman manufactures assorted polyurethanes, performance products, and adhesives for customers like BMW, GE, Chevron, Procter & Gamble, and Unilever. Mitsui Chemicals, Inc. provides various technologies and materials for automotive, electronics and information, life, environment and energy, and packaging industries. The company operates through four segments, such as Mobility, Health Care, Food & Packaging, and Basic Chemicals. Wanhua Chemical Group Co., Ltd. engages in the research and development, production, and sale of PU series products, liquefied petroleum gas-based petrochemical products, functional materials, and specialty chemicals worldwide.[BN] The Plaintiff is represented by: William Christopher Carmody, Esq. Susman Godfrey LLP (NYC) 1301 Avenue of the Americas, 32nd Floor New York, NY 10019 Phone: (212) 336-8330 Fax: (212) 336-8340 Email: bcarmody@susmangodfrey.com BCA FINANCIAL: Court Dismisses Ferrulli FDCPA Suit -------------------------------------------------- Judge Katherine S. Hayden of the U.S. District Court for the District of New Jersey granted the Defendant's motion to dismiss the case, GINO FERRULLI, Plaintiff, v. BCA FINANCIAL SERVICES, INC., Defendant, Civil No. 17-cv-13177 (KSH) (CLW) (D. N.J.). The matter comes before the Court on Defendant's motion to dismiss Ferrulli's class action complaint in which he alleges that BCA sent him and others similarly situated a debt collection letter that violates two provisions of the Fair Debt Collection Practices Act ("FDCPA"): 15 U.S.C. Section 1692e(10) and 15 U.S.C. Section 1692g(a). Ferrulli incurred a $780 debt to Saint Barnabas Medical Center, which was referred to BCA for collection purposes. BCA proceeded by sending Ferrulli a collection letter dated May 2, 2017. Ferrulli claims the collection letter uses false, deceptive, or misleading representations or means in connection with the collection of a debt, violating 15 U.S.C. Section 1692e(10), and fails to provide the consumer-recipient with a proper notice, as required by 15 U.S.C. Section 1692g(a)(3). Central to his argument is the letter's second paragraph: "If you have any questions regarding this debt you may speak to an account representative by calling our office." Ferrulli asserts that the language could mislead the recipient into thinking that a debt may be disputed either by calling BCA or by writing to BCA. Since an effective debt dispute must be in writing, Ferrulli argues that this language renders the letter false and misleading, and so the letter provides ineffective notice. Judge Hayden finds that the substance and the form of BCA's collection letter do not overshadow or contradict the validation notice such that the least sophisticated debtor could conclude the debt could be disputed by either writing or calling. The relaxed standard protects naïve consumers, but it still prevents liability for bizarre or idiosyncratic interpretations of collection notices by preserving a quotient of reasonableness and presuming a basic level of understanding and willingness to read with care. Additionally, the Judge finds that Ferrulli's Sections 1692e and 1692g claims are premised on the same allegation -- that the letter could lead the least sophisticated debtor inaccurately to conclude there are two valid methods of disputing the debt-writing and calling. The Court has held that the letter is not susceptible to two different meanings; it follows that the contested language cannot be labeled a false, deceptive, or misleading representation, and does not violate Section 1692e. For these reasons, Judge Hayden finds that BCA's collection letter provides proper notice as mandated by 15 U.S.C. Section 1692g(a)(3) and does not contain a false, deceptive, or misleading representation, barred by 15 U.S.C. Section 1692e(10). Accordingly, she granted BCA's motion to dismiss. An appropriate order will follow. A full-text copy of the Court's Sept. 28, 2018 Opinion is available at https://is.gd/dMdeVZ from Leagle.com. GINO FERRULLI, on behalf of himself and all others similarly situated, Plaintiff, represented by BENJAMIN JARRET WOLF -- info@legaljones.com -- Jones, Wolf & Kapasi, LLC & JOSEPH K. JONES, Jones, Wolf & Kapasi, LLC. BCA FINANCIAL SERVICES, INC., Defendant, represented by ANDREW MICHAEL SCHWARTZ -- amschwartz@mdwcg.com -- MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN, PC. BENEFICIAL BANCORP: Dappollone Suit Challenges Sale to WSFS ----------------------------------------------------------- MARK DAPPOLLONE, Individually and on Behalf of All Others Similarly Situated v. BENEFICIAL BANCORP, INC., FRANK A. FARNESI, EDWARD G. BOEHNE, KAREN DOUGHERTY BUCHHOLZ, MICHAEL J. DONAHUE, DONALD F. GAYHARDT, JR., ELIZABETH H. GEMMILL, THOMAS J. LEWIS, and ROY D. YATES, Case No. 1:18-cv-09395 (S.D.N.Y., October 15, 2018), accuses the Defendants of violating the Securities Exchange Act of 1934 in connection with the acquisition of Beneficial by WSFS Financial Corporation. On August 7, 2018, Beneficial and WSFS entered into an Agreement and Plan of Reorganization (the "Merger Agreement"), pursuant to which Beneficial will merge with and into WSFS, with WSFS continuing as the surviving corporation (the "Proposed Transaction"). Pursuant to the terms of the Merger Agreement, each share of Beneficial common stock issued and outstanding will be converted into the right to receive (i) 0.3013 shares of WSFS common stock and (ii) $2.93 in cash (the "Merger Consideration"). The Plaintiff alleges that the Defendants issued a materially incomplete and misleading Form S-4 Registration Statement (the "Proxy") with the SEC to convince shareholder to support the Proposed Transaction. In particular, he contends, the Proxy contains materially incomplete and misleading information concerning: (i) financial projections for Beneficial; and (ii) the valuation analyses performed by Beneficial's financial advisor, Sandler O'Neill & Partners, L.P. ("Sandler"), in support of their fairness opinion. Beneficial is a Maryland corporation with its principal executive offices located in Philadelphia, Pennsylvania. The Individual Defendants are directors and officers of Beneficial. Beneficial is a community-based, diversified financial services company providing consumer and commercial banking services. The Company's principal subsidiary, Beneficial Bank, has served individuals and businesses in the Delaware Valley area since 1853. WSFS is a savings and loan holding company headquartered in Wilmington, Delaware, and the parent to WSFS Bank, one of the ten oldest bank and trust companies in the United States continuously operating under the same name. WSFS Bank is also the largest locally-managed bank and trust company headquartered in the Delaware Valley.[BN] The Plaintiff is represented by: Juan E. Monteverde, Esq. MONTEVERDE & ASSOCIATES PC The Empire State Building 350 Fifth Avenue, Suite 4405 New York, NY 10118 Telephone: (212) 971-1341 Facsimile: (212) 202-7880 E-mail: jmonteverde@monteverdelaw.com BENSUSAN RESTAURANT: Faces Fischler Suit in S.D. New York --------------------------------------------------------- A class action lawsuit has been filed against Bensusan Restaurant Corp. The case is captioned as Brian Fischler, individually and on behalf of all other persons similarly situated, Plaintiff v. Bensusan Restaurant Corp. d/b/a as Blue Note, Defendants, Case No. 1:18-cv-09376-JGK (S.D.N.Y., Oct. 13, 2018). The lawsuit alleges violation of the Americans with Disabilities Act. The case is assigned to Judge John G. Koeltl. Bensusan Restaurant Corp was founded in 1982. The company's line of business includes operating of bars, night clubs, and other locations that sell alcoholic drinks. [BN] The Plaintiff is represented by: Douglas Brian Lipsky, Esq. LIPSKY LOWE LLP 630 Third Avenue Fifth Floor New York, NY 10017 Telephone: (212) 392-4772 Facsimile: (212) 444-1030 E-mail: doug@lipskylowe.com BIRCH TELECOM: Court Denies Certification of Huskey Class --------------------------------------------------------- In the case, RICHARD HUSKEY, et al., Plaintiffs, v. BIRCH TELECOM OF MISSOURI, INC., et al., Defendants, Case No. 4:17-CV-02415 JAR (E.D. Mo.), Judge John A. Ross of the U.S. District Court for the Eastern District of Missouri, Eastern Division, denied the Huskey's Motion to Certify a Class Pursuant to Federal Rule of Civil Procedure 23 and Missouri Supreme Court Rule 52.08. The Plaintiff filed suit on behalf of himself and the thousands of individuals allegedly harmed when the Defendants engaged in a deceptive marketing scheme designed to trap consumers in an unconscionable contract, in violation of the Missouri Merchandising Practices Act. Specifically, the Plaintiff alleges that the contract is procedurally unconscionable because the Defendants "cold-called" consumers and used high-pressure sales tactics and misleading information to induce them into accepting a telephone services contract they had not, and could not have, reviewed. In addition, the Plaintiff alleges that the contract included substantively unconscionable terms relating to canceling the service and price increases. He asserts that the Defendants' contract improperly caused economic damage to him and the class members in several various manners: a relatively enormous 'initiation' fee totaling upwards of $150; unilateral price increases, which, in the Plaintiff's case, were around $140; exorbitant 'early termination fee(s),' upwards of $400 in many cases; and, specifically in the case of the Plaintiff, attorneys' fees and expenses in bringing the action. The Plaintiff moves to certify a class defined as all past or present residential Birch customers that are citizens of Missouri, and who the Defendant deemed bound by the terms of their Master Services Agreement, or MSA at any time during the Class Period. The Plaintiff states that the class period runs from Aug. 17, 2012 to Aug. 17, 2017. The Defendants challenge nearly every one of the Plaintiff's assertions. They argue that the class definition is so broad that it would include customers who have not suffered any of the economic injuries the Plaintiff alleges. They also assert that the Plaintiff failed to adequately establish the numerosity, typicality, or adequacy requirements of Rule 23. Judge Ross concludes that the Plaintiff has failed to meet the requirements for class certification. He finds that (i) the Plaintiff's proposed class definition is not fatally broad; (ii) a bare assertion that there are "thousands of persons in the Class" is not a reasonable estimate; (iii) those procedural differences are less relevant than the class-wide determination of the substantive unconscionability of the MSA; (iv) when more than half of the questions common to the class may not apply to the proposed representative, his claim is not typical; and (v) the Plaintiff's atypical claim renders him an inadequate class representative. Accordingly, the Judge denied Huskey's Motion to Certify a Class Pursuant to Federal Rule of Civil Procedure 23 and Missouri Supreme Court Rule 52.08. However, the Plaintiff's individual claim may proceed. A full-text copy of the Court's Sept. 28, 2018 Order is available at https://is.gd/pOUmaZ from Leagle.com. Richard W. Huskey, Plaintiff, represented by Daniel F. Harvath -- dharvath@harvathlawgroup.com -- HARVATH AND HARVATH, LLC. Birch Telecom of Missouri, Inc. & Ionex Communications, Inc., Defendants, represented by Gardiner B. Davis -- gdavis@spencerfane.com -- SPENCER FANE LLP, Richard D. Lageson -- rlageson@spencerfane.com -- SPENCER FANE LLP & Thomas Scott Hiatt -- thiatt@spencerfane.com -- SPENCER FANE LLP, pro hac vice. Birch Communications, Inc., Defendant, represented by Gardiner B. Davis, SPENCER FANE LLP. BLUE DIAMOND: Campbell-Clark Hits Misleading Product Labels ----------------------------------------------------------- Dakota Campbell-Clark individually and on behalf of all others similarly situated, Plaintiff, v. Blue Diamond Growers, Defendant, Case No. 18-cv-05577 (E.D. N.Y., October 5, 2018), seeks to recover obtained benefits and monies from artificially inflated ticket prices and restitution and disgorgement of such inequitably obtained profits; preliminary and permanent injunctive relief; monetary and punitive damages and interest; costs and expenses, including reasonable fees for attorneys and experts; and such other and further relief resulting from unjust enrichment. Blue Diamond Growers manufactures, distributes, markets, labels and sells "Almond Nut-Thins" crackers under the "Blue Diamond Almonds" brand. Campbell-Clark says the Defendant's labelling of "nut & rice cracker snacks" is misleading because there is more rice than nut ingredients; the amount of potatoes present closely approximates the amount of almond-based ingredients; and almonds is not its predominant ingredient. [BN] Plaintiff is represented by: Joshua Levin-Epstein, Esq. LEVIN-EPSTEIN & ASSOCIATES, P.C. 1 Penn Plaza, Suite 2527 New York, NY 10119 Tel: (212) 792-0046 Email: joshua@levinepstein.com - and - Spencer Sheehan, Esq. SHEEHAN & ASSOCIATES, P.C. 891 Northern Blvd., Suite 201 Great Neck, NY 11021 Tel: (516) 303-0552 Email: spencer@spencersheehan.com - and - Laurence D. Paskowitz, Esq. PASKOWITZ LAW FIRM, P.C. 208 East 51st Street, Suite 380 New York, NY 10022 Tel: (212) 685-0969 BROADWAY ENERGY: Danconia Management Hits Illegally-faxed Ads ------------------------------------------------------------- Danconia Management, LLC, individually and as the representative of a class of similarly situated persons, Plaintiff, v. Broadway Energy, Inc., Tassan Jayikusuma and John Does 1-10, Defendants, Case No. 18-cv-09199, (S.D. N.Y., October 8, 2018, seeks redress for violations of the Telephone Consumer Protection Act and N.Y. General Business Law. Broadway Energy -- http://broadwayenergyus.com/-- is an energy brokerage firm based in Hicksville, NY. Plaintiff received an unsolicited facsimile from Defendant on its office fax machine without consent, notes the complaint. [BN] The Plaintiff is represented by: Dan Shaked, Esq. SHAKED LAW GROUP, P.C. 44 Court St., Suite 1217 Brooklyn, NY 11201 Tel. (917) 373-9128 E-mail: ShakedLawGroup@Gmail.com BUCKHEAD PARKING: Steward Suit Remanded to Georgia State Court -------------------------------------------------------------- Judge Richard W. Story of the U.S. District Court for the Northern District of Georgia, Gainesville Division, remanded the case, MICHAEL STEWARD, Individually, and on behalf of a class of similarly situated persons, Plaintiffs, v. BUCKHEAD PARKING ENFORCEMENT, LLC; McDONALD'S CORPORATION; SUSO 3 NEWNAN LP; and SLATE PROPERTIES, LLC, Defendants, Civil Action No. 2:18-CV-00035-RWS (N.D. Ga.), to the State Court of Forsyth County, Georgia. On Jan. 25, 2018, the Plaintiff parked in a private parking lot located at 58 Bullsboro Drive, Newnan, GA 30263, which is within the territorial limits of the City of Newnan. He alleges that Buckhead Parking was hired by the owner of the property where he parked to immobilize vehicles. Buckhead Parking placed a boot on his vehicle and refused to remove it unless the Plaintiff paid a $500 fine, which the Plaintiff paid. The Plaintiff alleges that because the City of Newnan does not have a vehicle immobilization ordinance, Buckhead Parking booted the Plaintiff's vehicle without legal authority and caused damages to him. He alleges that Buckhead Parking systematically engages in immobilizing vehicles with similar boots in many other locations in Georgia that also lack vehicle immobilization ordinances. The Plaintiff further alleges that all other Defendants to the action own or occupy property where they hire Buckhead Parking and/or other individual entities to boot vehicles parked on their property. For that reason, he seeks to form a class of all people whose vehicles were booted by, or at the request of, the Defendants at any location within the State of Georgia where there are no vehicle immobilization ordinances, and who have paid fines for the removal of said boot, from Jan. 25, 2013, through Feb. 7, 2018. The Plaintiff originally filed the case in the State Court of Forsyth County, Georgia, on Feb. 7, 2018, seeking damages and other available remedies on behalf of themselves and a class of persons similarly situated pursuant to O.C.G.A Section 9-11-23. Defendant McDonald's Corp. filed a Notice of Removal on March 16, 2018, asserting that the Court has jurisdiction under the Class Action Fairness Act ("CAFA"). Subsequently, on March 20, 2018, the Plaintiff filed a Motion to Remand alleging that McDonald's failed to satisfy its burden to prove that the amount in controversy exceeded $5 million by a preponderance of evidence. The Court denied the Plaintiff's Motion to Remand on April 23, 2018, finding that based on the totality of the allegations in the Complaint, the amount in controversy exceeded $5 million. The Plaintiff then filed a Motion for Leave to Conduct Limited Discovery Related to Jurisdiction and Request for Extension of Time. On May 14, 2018, the Court vacated its April 23, 2018 Order and instructed the parties to complete limited jurisdictional discovery as to the issue of whether the CAFA amount in controversy requirement had been met. After limited discovery, the Plaintiff filed Supplemental Motion for Remand arguing that the amount in controversy requirement under the CAFA has not been met and that the total amount in controversy is only $435,350. Defendants McDonald's Corp., Suso 3 Newman LP, and Slate Properties, LLC, consent to remand. Buckhead Parking does not consent to remand. Based upon the amount of booting fees at issue and the rest of the record, Judge Story concludes that the jurisdictional threshold for CAFA is not met. In order to reach the $5 million jurisdictional threshold for CAFA jurisdiction, each member of the class would have to recover at least an additional $5,100.17 in additional compensatory or punitive damages, or the aggregate amount for the class would have to be at least an additional $4,564,650. While it may appear that recovery of about $5,586 per class member for claims by the Plaintiffs' illegal -- booting plus the false imprisonment claims and compensation for irritation, inconvenience, or insecurity -- is a low hurdle, the Judge cannot conclude that recovery will exceed even so low a total. Therefore, although Buckhead Parking has explained how the jurisdictional minimum could possibly be reached, it has failed to show, by a preponderance of the evidence, that the jurisdictional minimum under CAFA has been reached. For that reason, the Judge granted the Plaintiff's Supplemental Motion to Remand, and denied as moot the Plaintiff's Motion to Remand. The case is remanded to the State Court of Forsyth County, Georgia. A full-text copy of the Court's Sept. 28, 2018 Order is available at https://is.gd/9lMG8E from Leagle.com. Michael Stewart, Individually, and on behalf of a class of similarly situated persons, Plaintiff, represented by Matthew Q. Wetherington -- matt@wernerlaw.com -- Werner Wetherington, P.C. & Robert Neil Friedman -- Robert@wernerlaw.com -- Werner Wetherington, P.C. Buckhead Parking Enforcement, LLC, Defendant, represented by David C. Abbott, David C. Abbott, Esq. McDonald's Corporation, Defendant, represented by Lennon Haas -- haasl@ballardspahr.com -- Greenberg Traurig, LLP & Todd David Wozniak -- wozniakt@gtlaw.com -- Greenberg Traurig, LLP. Suso 3 Newnan LP & Slate Properties, LLC, Defendants, represented by Amanda Dawn Proctor -- aproctor@carltonfields.com -- Carlton Fields & Justan Caleaf Bounds -- jbounds@carltonfields.com -- Carlton Fields. CAPITAL FITNESS: Court Denies Class Certification in Gooden Suit ---------------------------------------------------------------- In the class action lawsuit captioned as Lundon Gooden, the Plaintiff, vs. Capital Fitness, Inc., the Defendant, Case: 1:18-cv-02200 (N.D. Ill.), the Hon. Judge Manish S. Shah entered an order denying Plaintiff's motion for conditional certification. According to the docket entry made by Clerk on October 25, 2018, Plaintiff's motion for conditional certification is denied for the same reasons as the Court's Oct. 24 2018 order. For the reasons stated in open Court, plaintiff's motion to amend/correct complaint is granted. The amended complaint should be filed as a separate entry by Nov. 8, 2018. Defendant's response is due by Nov. 29, 2018. The Dec. 13, 2018 status hearing at 9:30 a.m. remains as set. CAROLINA QUARRIES: Shortchanged on Pay, Workers Claim ------------------------------------------------------ Alejandro Sanchez Diaz and Alexis Ruiz, individually and on behalf of all others similarly situated, Plaintiffs, v. Carolina Quarries, Inc. and Rock Of Ages Corporation, Defendants, Case No. 18-cv-00849, (M.D. N.C., October 5, 2018), seeks to recover unpaid wages, unpaid overtime wages and unpaid spread of hours premiums pursuant to the Fair Labor Standards Act. Defendants are an integrated granite quarrier and manufacturer whose principal products are granite blocks with operations in North Carolina where Plaintiffs are quarry workers. The Plaintiffs claim they were not paid for all of their compensable time worked. They said they generally arrived for work by 6:30 a.m., but their work rendered between 6:30 and 7:00 a.m. was not reflected in their paycheck. [BN] The Plaintiff is represented by: John Hughes, Esq. Mona Lisa Wallace, Esq. Kayleigh Lynn Messersmith, Esq. WALLACE & GRAHAM, P.A. 525 N. Main Street Salisbury, NC 28144 Telephone: (704) 633-5244 Facsimile: (704) 633-9434 Email: mwallace@wallacegraham.com kmessersmith@wallacegraham.com jhughes@wallacegraham.com CELLSAVERS: Denied Overtime Pay, Wage Statements, Says Krasnow -------------------------------------------------------------- Jonathan Krasnow, individually and on behalf of other persons similarly situated, Plaintiff, v. Puls Technologies Inc., Cellsavers, Inc. (d/b/a Cellsavers iPhone Repairs) and Does 1 through 50, inclusive, Defendants, Case No. CGC-18-570330 (Cal. Super. October 5, 2018), seeks redress for Defendants' failure to pay overtime and minimum wages, failure to provide proper wage statements and failure to pay earned wages upon discharge including waiting time penalties under the Unfair Business Practices statures of the California Business and Professions Code, and the California Labor Code and Welfare Commission Orders. Krasnow worked for the Defendants from approximately August 25, 2015 until on or about September 6, 2018, as an electronics repair and installation technician. He claims to have been misclassif1ed as an independent contractor. Plaintiff is represented by: Alexander I. Dychter, Esq. S. Adam Spiewak, Esq. DYCHTER LAW OFFICES, APC 1010 Second Ave., Suite 1835 San Diego, CA 92101 Telephone: (619) 487-0777 Facsimile: (619) 330-1827 E-Mail: alex@dychterlaw.com adam@dychterlaw.com CHARLOTTE SCHOOL: Bid to File Under Seal in Barchiesi Granted ------------------------------------------------------------- In the case, ROBERT C. BARCHIESI and LEJLA HADZIC, Individually and in a representative capacity on behalf of a class of all persons similarly situated, v. CHARLOTTE SCHOOL OF LAW, LLC, and INFILAW CORPORATION, Defendants, Case No. 3:16CV861 (W.D. N.C.), Judge Graham C. Mullen of the U.S. District Court for the Western District of North Carolina, Charlotte Division, granted the Defendants' Motion to File Attachment H to their Class Action Fairness Act Notice Under Seal. The Plaintiffs do not object to the Defendants' Motion to Seal filed on Sept. 21, 2018. The motion has been accessible to the public. In accordance with the law of this Circuit as well as the Local Rules, the Judge has considered the Motion to Seal, the public's interest in access to such materials, and alternatives to sealing. He determines that no less restrictive means other than sealing is sufficient because a public filing of such materials would reveal personal information of students the dissemination of which to the general public is restricted as set forth in the Family Educational Rights and Privacy Act. He concludes that the sealing of the Attachment is narrowly tailored to serve the interest of protecting the confidential information. Therefore Judge Mullen granted the Motion to Seal. The Attachment H to the Defendants' Notice of Proposed Class Action Settlement Pursuant to 28 U.S.C. Section 1715 will be filed under seal until further Order of the Court. A full-text copy of the Court's Sept. 28, 2018 Order is available at https://is.gd/xWUqgA from Leagle.com. Robert C Barchiesi, Individually and in a Representative capacity on behalf of a class of all persons similarly situated & Lejla Hadzic, Individually and in a Representative capacity on behalf of a class of all persons similarly situated, Plaintiffs, represented by Angelique Adams, Shipman & Wright, LLP, Gary K. Shipman, Shipman & Wright, LLP, John Alan Jones, Martin and Jones, PLLC, Karl Joseph Amelchenko, Martin & Jones, Kyle Joseph Nutt, Shipman & Wright, LLP, Steven Dennis Corriveau, Martin & Jones & H. Forest Horne, Jr., Jones, Martin, Parris & Tessener. Raissa Levy, James Villanueva, Shanna Rivera, Andre McCoy & 17cv26 Levy Plaintiffs, Consol Plaintiffs, represented by Amanda A. Mingo, Rawls, Scheer, Foster, Mingo & Culp, PLLC, Brian Leighton Kinsley, Crumley Roberts, Daniel Ray Francis, Crumley Roberts, Philip Bohrer, Bohrer Brady LLC, pro hac vice, Robert Andre Fleury, Jr., Crumley Roberts & Scott E. Brady -- scott@bohrerbrady.com -- Bohrer Brady LLC, pro hac vice. Leah Ash & 17cv39 Ash Plaintiff, Consol Plaintiffs, represented by Michael John Messinger, Law Offices of Michael Messinger, PLLC. Spencer Krebs, Morgan Switzer, Dave Wyatt, Jacenta Marie Price, Krystal Horsley, Markisha Dobson & 17cv190 Plaintiffs, Consol Plaintiffs, represented by Anthony J. Majestro -- amajestro@powellmajestro.com -- Powell & Majestro, PLLC, pro hac vice, Douglas B. Abrams, Abrams & Abrams, P.A., Noah Abrams, Abrams & Abrams PA, Taylor M. Norman -- tnorman@bjc4u.com -- Bailey Javins & Carter, LC, pro hac vice & Timothy C. Bailey, Bailey Javins & Carter, LC, pro hac vice. Charlotte School of Law, LLC, Defendant, represented by David Edward Mills -- dmills@cooley.com -- Cooley LLP, Debbie W. Harden -- debbie.harden@wbd-us.com -- Womble Bond Dickinson (US) LLP, Johnny M. Loper -- johnny.loper@wbd-us.com -- Womble Bond Dickinson (US) LLP, Michael DeWayne Hays -- mhays@cooley.com -- Cooley LLP, pro hac vice, Rebecca Claire Fleishman -- rebecca.fleishman@wbd-us.com -- Womble Carlyle Sandridge & Rice, LLP, Robert Cahill -- rcahill@cooley.com -- Cooley LLP, pro hac vice & Sarah Motley Stone -- sarah.stone@wbd-us.com -- Womble Bond Dickinson (US) LLP. InfiLaw Corporation, Defendant, represented by David Edward Mills, Cooley LLP, Johnny M. Loper, Womble Bond Dickinson (US) LLP, Sarah Motley Stone, Womble Bond Dickinson (US) LLP, Debbie W. Harden, Womble Bond Dickinson (US) LLP, Michael DeWayne Hays, Cooley LLP, pro hac vice & Robert Cahill, Cooley LLP, pro hac vice. Jay Conison, Consol Defendant, represented by David Edward Mills, Cooley LLP, Johnny M. Loper, Womble Bond Dickinson (US) LLP, Sarah Motley Stone, Womble Bond Dickinson (US) LLP, Debbie W. Harden, Womble Bond Dickinson (US) LLP, Michael DeWayne Hays, Cooley LLP, pro hac vice & Robert Cahill, Cooley LLP, pro hac vice & Sarah Motley Stone, Womble Bond Dickinson (US) LLP. Chidi Ogene, Consol Defendant, represented by avid Edward Mills, Cooley LLP, Debbie W. Harden, Womble Bond Dickinson (US) LLP, Johnny M. Loper, Womble Bond Dickinson (US) LLP, Robert Cahill, Cooley LLP, pro hac vice & Sarah Motley Stone, Womble Bond Dickinson (US) LLP. Sterling Partners & Sterling Capital Partners IV, LLC, Consol Defendants, represented by Adam Karl Doerr -- adoerr@rbh.com -- Robinson Bradshaw & Hinson & Robert Evans Harrington, Robinson, Bradshaw & Hinson, P.A. CHEESECAKE FACTORY: Fails to Pay Proper Wages, Castillo Says ------------------------------------------------------------ Janet Campos Castillo, on behalf of herself and all others similarly situated, the Plaintiff, vs. THE CHEESECAKE FACTORY RESTAURANTS, INC, a California corporation; and DOES 1 through 10, inclusive, the Defendants, Case No. RG18925967 (Cal. Super. Ct., Oct. 24, 2018), alleges that Defendants failed to provide lawful meal periods, failed to authorize and permit lawful rest periods, and failed to pay all wages owed upon separation of employment, pursuant to the California Labor Code. According to the complaint, the Plaintiff and all hourly, non-exempt employees are employed by Defendants in their restaurants within the State of California. The Defendant consistently maintained and enforced against Cheesecake Factory non-exempt employees unlawful practices and policies in violation of California state wage and hour laws. Defendants implemented policies and practices which led to Defendants' (1) failure to provide lawful meal periods, (2) failure to provide compensation when lawful meal periods were not provided; (3) failure to authorize and permit lawful rest periods; (4) failure to provide compensation when lawful rest periods were not provided; (5) failure to timely pay all owed wages; (6) failure to provide accurate, itemized wage statements; and (7) failure to keep accurate records. In addition, Defendants violated Labor Code section 1198 and Wage Order 5-2001, section 14 27 by failing to provide suitable seats to Plaintiff and the subgroup of non-exempt employees that consists of non-exempt cashiers, the lawsuit says.[BN] Attorneys for Plaintiff: James R. Hawkins, Esq. Christina M. Lucio, Esq. 9880 Research Drive, Suite 200 Irvine, CA 92618 Telephone: (949) 387-7200 Facsimile: (949) 387-6676 E-mail: james@iameshawkinsaplc.com christina@iameshawkinsaplc.com CHRISTOFLE SILVER: Figueroa Files Class Suit Under ADA ------------------------------------------------------ Jose Figueroa has filed a class action against a manufacturer of fine silver flatware and home accessories. The case is captioned Jose Figueroa on behalf of himself and all others similarly situated, Plaintiff v. Christofle Silver, Inc., Defendant, Case No. 1:18-cv-10045 (S.D. N.Y., Oct. 31, 2018). The Plaintiff filed the case under the Americans with Disabilities Act.[BN] The Plaintiff is represented by: Joseph H Mizrahi, Esq. Cohen & Mizrahi LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Phone: (917) 299-6612 Fax: (929) 575-4195 Email: joseph@cml.legal CHW GROUP: Moore Seeks to Stop Placement of Unconsented Calls ------------------------------------------------------------- GEORGE MOORE, individually and on behalf of all others similarly situated v. CHW GROUP, INC., d/b/a Choice Home Warranty, a New Jersey corporation, Case No. 1:18-cv-06960 (N.D. Ill., October 16, 2018), seeks to stop the Defendant's alleged practice of, among other things, placing pre-recorded telephone calls to residential telephone numbers without the proper consent, all in violation of the Telephone Consumer Protection Act. Choice Home Warranty is a corporation incorporated and existing under the laws of the state of New Jersey with its principal office address located in Edison, New Jersey. Choice Home Warranty offers appliance service contracts that purport to protect homeowners against high repair and replacement costs.[BN] The Plaintiff is represented by: Stefan Coleman, Esq. LAW OFFICES OF STEFAN COLEMAN, P.A. 201 S. Biscayne Blvd., 28th Floor Miami, FL 33131 Telephone: (877) 333-9427 Facsimile: (888) 498-8946 E-mail: law@stefancoleman.com - and - Steven Owen Ross, Esq. STEVEN OWEN ROSS, ATTORNEY AT LAW 1235 South Prairie Avenue, Suite 1503 Chicago, IL 60605 Telephone: (312) 566-4170 E-mail: soratty1@aol.com - and - Steven L. Woodrow, Esq. Patrick H. Peluso, Esq. WOODROW & PELUSO, LLC 3900 East Mexico Ave., Suite 300 Denver, CO 80210 Telephone: (720) 213-0675 E-mail: swoodrow@woodrowpeluso.com ppeluso@woodrowpeluso.com CIRCA INC: Dominguez Suit Asserts ADA Violation ----------------------------------------------- A class action lawsuit has been filed against Circa Inc. The case is styled as Yovanny Dominguez on behalf of himself and all others similarly situated, Plaintiff v. Circa Inc., Defendant, Case No. 1:18-cv-10103 (S.D. N.Y., Oct. 31, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. CIRCA, Inc. buys pre-owned jewelry, gemstones, and watches from the public. The company purchases various types of jewelry, such as engagement ring, estate of rare art deco jewelry, and others; diamond wedding rings, diamond engagement rings, diamond bracelets, diamond necklaces, or diamond earrings; luxury and vintage timepieces; and estate jewelry from all eras.[BN] The Plaintiff is represented by: Joseph H Mizrahi, Esq. Cohen & Mizrahi LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Phone: (917) 299-6612 Fax: (929) 575-4195 Email: joseph@cml.legal COLLECTO INC: Dentinger Sues Over Debt Collection Practices ----------------------------------------------------------- A class action lawsuit has been filed against Collecto, Inc. The case is styled as Lourdes Dentinger on behalf of herself and all others similarly situated, Plaintiff v. Collecto, Inc. doing business as: EOS CCA, Defendant, Case No. 5:18-cv-01138-FB (W.D. Tex., Oct. 30, 2018). The Plaintiff filed the case under the Fair Debt Collection Practices Act. Collecto, Inc., doing business as EOS/CCA, Inc., operates as a debt management and recovery resource company. It offers receivables collection services for banks, colleges and universities, student loan lenders, telecommunications companies, and other companies.[BN] The Plaintiff is represented by: Marwan Rocco Daher, Esq. Sulaiman Law Group, Ltd. 2500 S. Highland Avenue, Suite 200 Lombard, IL 60148 Phone: (630) 537-1770 Email: mdaher@sulaimanlaw.com COMMERCE ENERGY: $2.7MM Attys' Fees Awarded in Hurt FLSA Suit ------------------------------------------------------------- In the case, DAVINA HURT, et al., Plaintiffs, v. COMMERCE ENERGY, INC., et al., Defendants, Case No. 1:12-cv-758 (N.D. Ohio), Judge James S. Gwin of the U.S. District Court for the Northern District of Ohio (i) granted in part and denied in part the Plaintiffs' motion for attorney's fees and costs, and (ii) granted in part and denied in part their motion for incentive awards. In this long-lingering bifurcated litigation, a jury found that the Defendants liable for violations of the Fair Labor Standards Act ("FLSA") and the Ohio Minimum Fair Wage Standards Act ("Ohio Wage Act"). After a long and complicated damage determination, the Court determined damages for the large collective action and class action. The Plaintiffs now move the Court for attorney's fees and costs. They seek $2,718,440.75 -- with a two times multiplier -- in attorney's fees. They also seek $217,120.16 in costs. The Plaintiffs also move for incentive awards. They seek $105,000 in incentive awards for twenty-three Plaintiffs who spent 186 hours on the case. On Sept.20, 2018, the Court held a hearing on these issues. Judge Gwin (i) granted in part and denied in part the Plaintiffs' motion for attorney's fees and costs, and (ii) granted in part and denied in part their motion for incentive awards. He ordered the Defendants to pay the Plaintiffs $2,718,440.75 in attorney's fees and $217,120.16 in costs. From those attorney's fees, he ordered the Plaintiffs' attorneys to pay $62,500 in incentive awards. Having won under the FLSA and Ohio Wage Act, the Judge holds that the Plaintiffs are entitled to reasonable attorney's fees. In determining the attorney's fees, he uses the lodestar calculation: the attorney's reasonable hourly rate multiplied by the number of hours reasonably spent on the case. The Plaintiffs supported their costs request with detailed entries, which the Judge has reviewed, and with an affidavit. Beyond broad categories of grievances, the Defendants fail to identify any particular expense as objectionable. He concludes that the sought costs were reasonably related and necessary to the litigation in the case and are thus granted. Finally, in the Court's experience, the sought incentive awards are too high. The awards should properly reward the Plaintiffs for their efforts, without creating a bounty for bringing suit. Thus, he granted $5,000 each to Davina Hurt and Dominic Hill, the Plaintiffs most involved in the case. And the Judge granted $2,500 each to the remaining Plaintiffs for whom incentive awards are sought. A full-text copy of the Court's Sept. 28, 2018 Opinion and Order is available at https://is.gd/wDxOLV from Leagle.com. Davina Hurt, Individually and on behalf of all other similarly situated & Dominic Hill, Individually and on behalf of all other similarly situated, Plaintiffs, represented by Frank A. Bartela -- fbartela@dworkenlaw.com -- Dworken & Bernstein, Murray Richelson, Law Office of David A. Katz, Nicole T. Fiorelli -- nfiorelli@dworkenlaw.com -- Dworken & Bernstein, Patrick J. Perotti -- pperotti@dworkenlaw.com -- Dworken & Bernstein, Daniel M. Katz , David Aron Katz , James A. DeRoche, Garson Johnson, James S. Timmerberg , Dworken & Bernstein, Kristen M. Kraus -- kmkraus@dworkenlaw.com -- Dworken & Bernstein & Richard N. Selby, II -- rselby@dworkenlaw.com -- Dworken & Bernstein. Commerce Energy, Inc, doing business as Just Energy, Commerce Energy of Ohio, Inc., Just Energy Marketing Corp & Just Energy Group, Inc., Defendants, represented by Jennifer L. Schilling -- jschilling@littler.com -- Littler Mendelson, Alexander R. Frondorf -- afrondorf@littler.com -- Littler Mendelson, Bradley A. Sherman -- bsherman@littler.com -- Sherman Boseman Legal Group, Edward H. Chyun -- echyun@littler.com -- Littler Mendelson, Robert M. Wolff -- rwolff@littler.com -- Littler Mendelson & Shannon K. Patton -- spatton@littler.com -- Littler Mendelson. Dworken & Bernstein's Custodian of Records & Dworken & Bernstein Co.L.P.A., Movants, represented by Nicole T. Fiorelli, Dworken & Bernstein. CONSULATE HEALTH CARE: Knapp Sues Over Forfeited Leave Benefits --------------------------------------------------------------- Wilma Knapp, on behalf of herself and others similarly situated, Plaintiff, v. Consulate Health Care, Defendant, Case No. 18-cv-01941, (M.D. Pa., October 8, 2018) seeks monetary damages, liquidated damages, prejudgment interest, costs, including reasonable attorneys' fees resulting from breach of contract, promissory estoppel and unjust enrichment under the Pennsylvania Wage Payment and Collection Law. Defendant operates a system of facilities providing skilled nursing, assisted living and rehabilitation services throughout several states. Knapp worked as a nurse at "The Manor at Susquehanna Village," a nursing home located at 990 Medical Road, Millersburg, PA 17061. In 2017, Defendant informed employees that their earned and accumulated leave time was being eliminated in order to facilitate Defendant's sale of the Millersburg facility to a nursing home company called Priority Healthcare Group. Knapp's 1,139 hours of leave time was summarily and unilaterally wiped-out. No consideration was offered or paid, the complaint relates. [BN] Plaintiff is represented by: Peter Winebrake, Esq. WINEBRAKE & SANTILLO, LLC 715 Twining Road, Suite 211 Dresher, PA 19025 Phone: (215) 884-2491 Facsimile: (215) 884-2492 Email: pwinebrake@winebrakelaw.com CORIUM INT'L: Monteverde & Assoc Probing Securities Laws Violations ------------------------------------------------------------------- Juan Monteverde, founder and managing partner at Monteverde & Associates PC, a national securities firm headquartered at the Empire State Building in New York City, is investigating Corium International, Inc. ("Corium" or the "Company") (NasdaqGM: CORI) relating to the sale of the Company to Gurnet Point Capital ("Gurnet Point"). Under the terms of the proposed transaction, Corium shareholders are only anticipated to receive $12.50 in cash for each share of Corium common stock they own. The agreement also provides for a Contingent Value Right of $0.50 per share payable upon certain conditions. The investigation focuses on whether Coirum and its Board of Directors violated securities laws and/or breached their fiduciary duties to the Company's stockholders by 1) failing to conduct a fair process, 2) whether and by how much this proposed transaction undervalues the Company. Monteverde & Associates PC is a national class action securities and consumer litigation law firm that has recovered millions of dollars and iscommitted to protecting shareholders and consumers from corporate wrongdoing. Monteverde & Associates lawyers have significant experience litigating Mergers & Acquisitions and Securities Class Actions, whereby they protect investors by recovering money and remedying corporate misconduct. Mr. Monteverde, who leads the legal team at the firm, has been recognized by Super Lawyers as a Rising Star in Securities Litigation in 2013 and 2017, an award given to less than 2.5% of attorneys in a particular field. He has also been selected by Martindale-Hubbell as a 2017 Top Rated Lawyer. If you own common stock in Corium and wish to obtain additional information and protect your investments free of charge please; Juan E. Monteverde, Esq. MONTEVERDE & ASSOCIATES PC The Empire State Building 350 Fifth Ave. Suite 4405 New York, NY 10118 United States of America Telephone: (212) 971-1341 Email: jmonteverde@monteverdelaw.com [GN] CVS HEALTH CORPORATION: Removes Hyams Suit to N.D. California ------------------------------------------------------------- The Defendant in the case of RYAN HYAMS, individually and behalf of all others similarly situated, Plaintiff v. CVS HEALTH CORPORATION; CVS PHARMACY INC.; GARFIELD BEACH CVS LLC; and CVS RX SERVICES, INC., Defendants, filed a notice to remove the lawsuit from the Superior Court of the State of California, County of San Francisco (Case No. CGC-18-569060) to the U.S. District Court for the Northern District of California on October 12, 2018. The clerk of court for the Northern District of California assigned Case No. 4:18-cv-06278-HSG (N.D. Cal., Oct. 12, 2018). The case is assigned to Judge Haywood S Gilliam, Jr. CVS Health Corporation, together with its subsidiaries, provides integrated pharmacy health care services. The company was formerly known as CVS Caremark Corporation and changed its name to CVS Health Corporation in September 2014. CVS Health Corporation was founded in 1892 and is headquartered in Woonsocket, Rhode Island. [BN] The Plaintiff is represented by: Beth Anne Gunn, Esq. GUNN COBLE LLP 101 S. 1st Street, Suite 407 Burbank, CA 91502 Telephone: (818) 900-0695 E-mail: beth@gunncoble.com - and - Catherine Jean Coble, Esq. GUNN COBLE LLP 101 S. First St., Suite 407 Burbank, CA 91502 Telephone: (818) 573-6392 Facsimile: (818) 900-0723 E-mail: cathy@gunncoble.com The Defendants is represented by: Jennifer Bates Zargarof, Esq. Sonia Andrea Vucetic SIDLEY AUSTIN LLP 555 West Fifth Street, Suite 4000 Los Angeles, CA 90013 Telephone: (213) 896-6058 Facsimile: (213) 896-6600 E-mail: jzargarof@sidley.com svucetic@sidley.com DART CONTAINER: Fails to Pay Proper Wages, Prado Suit Alleges ------------------------------------------------------------- MIGUEL PRADO, individually and on behalf of all others similarly situated, Plaintiff v. DART CONTAINER CORORATION OF CALIFORNIA; and DOES 1 through 50, inclusive, Defendants, Case No. 18CV336217 (Cal. Super., Santa Clara Cty., Oct. 12, 2018) is an action against the Defendants for failure to pay minimum wages, overtime compensation, authorize and permit meal and rest periods, and provide accurate wage statements. Mr. Prado was employed by the Defendants as non-exempt employee. Dart Container Corporation of California, doing business as DTX Inc., manufactures and markets plastic foam products. It offers plastic and polystyrene foam package materials and containers for the restaurants, franchise, and grocery industries, as well as provides cups and plates. The company is based in Corona, California. Dart Container Corporation of California operates as a subsidiary of Dart Container Corporation. [BN] The Plaintiff is represented by: Shaun Setareh, Esq. H. Scott Leviant, Esq. William M. Pao, Esq. SETAREH LAW GROUP 315 South Beverly Drive, Suite 315 Beverly Hills, CA 90212 Telephone: (310) 888-7771 Facsimile: (310) 888-0109 E-mail: shaun@setarehlaw.com scott@setarehlaw.com william@setarehlaw.com DAVOL INC: Removes MSP Suit From Miami-Dade Cir. to S.D. Florida ---------------------------------------------------------------- The Defendants removed on October 16, 2018, the putative class action lawsuit styled as MSP RECOVERY CLAIMS, SERIES LLC, a Delaware series limited liability company, MSPA CLAIMS 1, LLC, a Florida limited liability company, and SERIES PMPI, a designated series of MAO-MSO RECOVERY II LLC, a Delaware series limited liability company v. DAVOL, INC., a Delaware for-profit corporation, and C. R. BARD, INC., a New Jersey for-profit corporation, Case No. 2018-030379-CA-24, from the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County, Florida, to the U.S. District Court for the Southern District of Florida. The District Court Clerk assigned Case No. 1:18-cv-24246-FAM to the proceeding. On September 6, 2018, the Plaintiffs filed a "Complaint for Pure Bill of Discovery" against the Defendants in the Circuit Court. On September 13, 2018, the Plaintiffs filed an "Amended Complaint for Pure Bill of Discovery." The Plaintiffs (and their affiliates) bring putative class action lawsuits against the Defendants, pursuant to the federally-created private cause of action provision of the MSP Act, "seeking reimbursement for conditional payments made on behalf of Medicare Part C enrollees in accordance with the [MSP Act]." Davol, Inc., is a corporation incorporated under the laws of Delaware, and its principal place of business is in Rhode Island. C. R. Bard, Inc., is a corporation incorporated under the laws of New Jersey, and its principal place of business is in New Jersey.[BN] The Plaintiffs are represented by: John H. Ruiz, Esq. MSP RECOVERY LAW FIRM 5000 SW 75th Avenue, Suite 400 Miami, FL 33155 Telephone: (305) 614-2222 E-mail: jruiz@msprecovery.com The Defendants are represented by: Sabrina R. Gallo, Esq. Jay A. Yagoda, Esq. GREENBERG TRAURIG, P.A. 333 S.E. 2nd Avenue, Suite 4400 Miami, FL 33131 Telephone: (305) 579-0500 Facsimile: (305) 579-0717 E-mail: gallos@gtlaw.com yagodaj@gtlaw.com DEUTSCHE BANK: Appeals Ruling in Securities Suit to 2nd Circuit --------------------------------------------------------------- Defendants Deutsche Bank AG, et al., filed an appeal from a court ruling in the litigation titled In Re: Deutsche Bank AG Securities Litigation, Case No. 09-cv-1714, in U.S. District Court for the Southern District of New York (New York City). The Defendants-Petitioners are Deutsche Bank AG, Josef Ackermann, Bank of America Securities LLC, Detlef Bindert, Jonathan Blake, Citigroup Global Markets, Inc., Deutsche Bank Capital Funding LLC VIII, Deutsche Bank Capital Funding LLC X, Deutsche Bank Capital Funding Trust IX, Deutsche Bank Capital Funding Trust VIII, Deutsche Bank Capital Funding Trust X, Deutsche Bank Contingent Capital LLC II, Deutsche Bank Contingent Capital LLC III, Deutsche Bank Contingent Capital LLC V, Deutsche Bank Contingent Capital Trust II, Deutsche Bank Contingent Capital Trust III, Deutsche Bank Contingent Capital Trust III, Deutsche Bank Contingent Capital Trust V, Deutsche Bank Securities Inc., Deutsche BankD Capital Funding LLC IX, Anthony Di Iorio, Martin Edelmann, Banziger Hugo, Hermann-Josef Lamberti, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Morgan Stanley & Co. Incorporated, Rainer Rauleder, Peter Sturzinger, UBS Securities LLC, Tessen Von Heydebreck, Wachovia Capital Markets, LLC and Marco Zimmermann. As previously reported in the Class Action Reporter, the action involves a series of securities offerings between May 2007 and May 2008 where allegedly false or misleading offering materials were used to sell $5.4 billion of preferred securities in violation of Sections 11, 12(a)(2) and 15 of the Securities Act of 1933. The appellate case is captioned as In Re: Deutsche Bank AG Securities Litigation, Case No. 18-3036, in the United States Court of Appeals for the Second Circuit.[BN] Plaintiffs-Respondents Norbert G. Kaess, on behalf of themselves and all others similarly situated; Maria Farruggio, on behalf of themselves and all others similarly situated; Edward P. Zemprelli, on behalf of himself and all others similarly situated; Plumbers' Union Local No. 12 Pension Fund; Shirley Backrach, individually and on behalf of all others similarly situated; and George Gerson, individually and on behalf of all others similarly situated, are represented by: Lucas Olts, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 655 West Broadway San Diego, CA 92101 Telephone: (619) 231-1058 E-mail: lolts@rgrdlaw.com Defendants-Petitioners Deutsche Bank AG, Deutsche Bank Capital Funding Trust VIII, Deutsche Bank Capital Funding LLC VIII, Deutsche Bank Capital Funding Trust X, Deutsche Bank Capital Funding LLC X, Josef Ackermann, Anthony Di Iorio, Banziger Hugo, Tessen Von Heydebreck, Hermann-Josef Lamberti, Martin Edelmann, Peter Sturzinger, Detlef Bindert, Jonathan Blake, Marco Zimmermann, Deutsche Bank Securities Inc., Deutsche Bank Contingent Capital Trust III, Deutsche Bank Contingent Capital Trust V, Deutsche Bank Contingent Capital LLC V, Deutsche Bank Capital Funding Trust IX, Deutsche BankD Capital Funding LLC IX, Rainer Rauleder, Deutsche Bank Contingent Capital Trust III, Deutsche Bank Contingent Capital LLC III, Deutsche Bank Contingent Capital Trust II and Deutsche Bank Contingent Capital LLC II are represented by: Charles Gilman, Esq. CAHILL GORDON & REINDEL LLP 80 Pine Street New York, NY 10005 Telephone: (212) 701-3403 E-mail: cgilman@cahill.com Defendants-Petitioners UBS Securities LLC, Citigroup Global Markets, Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Wachovia Capital Markets, LLC, Morgan Stanley & Co. Incorporated and Bank of America Securities LLC are represented by: Scott Musoff, Esq. SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP 4 Times Square New York, NY 10036 Telephone: (212) 735-3000 E-mail: scott.musoff@skadden.com DNC SERVICES: Sweigert Appeals Class Suit Dismissal --------------------------------------------------- Plaintiff George Webb Sweigert filed an appeal from a court ruling in the lawsuit entitled George Sweigert, et al. v. John Podesta, et al., Case No. 1:17-cv-02330-RC, in the U.S. District Court for the District of Columbia. As reported in the Class Action Reporter on Oct. 8, 2018, the District Court issued a Memorandum Opinion granting the Defendant's motion to dismiss the case. Defendants Haseeb Rana, the DNC, the Podesta Group, Deborah Wasserman Schultz, Huma Abedin, and Imran Awan each moved to dismiss the complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the of the Federal Rules of Civil Procedure. The Plaintiff brings this putative class action against a host of individuals and entities purportedly associated with the Democratic National Party in connection with alleged actions taken by the Defendants during the Democratic primaries to the 2016 U.S. Presidential election. Mr. Sweigert, an alleged supporter of Bernie Sanders, asserts that the Defendants committed fraud and breach of fiduciary duty by, among other things, executing an undisclosed funding agreement with a not-for-profit associated with the Hillary Clinton campaign and by conducting a website-hacking conspiracy to promote Hillary Clinton's candidacy and to diminish the candidacy of Bernie Sanders. The appellate case is captioned as George Sweigert, et al. v. John Podesta, et al., Case No. 18-7156, in the United States Court of Appeals for the District of Columbia Circuit. Plaintiff-Appellant George Webb Sweigert, of Capitol Heights, Maryland, appears pro se.[BN] Defendants-Appellees John D. Podesta, Chairman, Hillary for America, and Tom Perez, DNC SERVICES CORP., doing business as Democratic National Committee, are represented by: Bruce V. Spiva, Esq. PERKINS COIE LLP 700 13th Street, NW, Suite 600 Washington, DC 20005-3960 Telephone: (202) 654-6200 E-mail: BSpiva@perkinscoie.com Defendants-Appellees Kim Fritts, CEO, Podesta Group & CEO ARMZ Uranium Holding Comp., and Podesta Group are represented by: Timothy Cone, Esq. LAW OFFICE OF TIMOTHY CONE 1509 16th Street, NW, Suite 507 Washington, DC 20036 Telephone: (202) 862-4333 Defendant-Appellee Kim Fritts, CEO, Podesta Group & CEO ARMZ Uranium Holding Comp., is represented by: Matthew C. Hicks, Esq. CAPLIN & DRYSDALE, CHARTERED One Thomas Circle, NW, Suite 1100 Washington, DC 20005-5802 Telephone: (202) 862-5000 E-mail: mhicks@capdale.com Defendant-Appellee Deborah Wasserman Schultz, "DEBBIE," is represented by: William Bullock Pittard, IV, Esq. KAISER DILLON PLLC 1401 K Street, NW, Suite 600 Washington, DC 20005 Telephone: (202) 683-6150 E-mail: wpittard@kaiserdillon.com Defendants-Appellees Imran Awan and Haseeb Rana are represented by: Jesse Isaac Winograd, Esq. GOWEN SILVA & WINOGRAD PLLC 513 Capitol Court, NE, Suite 100 Washington, DC 20002 Telephone: (202) 380-9355 E-mail: jwinograd@gowensilva.com Defendant-Appellee Huma Abedin is represented by: Karen L. Dunn, Esq. BOIES SCHILLER FLEXNER LLP 1401 New York Avenue, NW, Suite 1100 Washington, DC 20005 Telephone: (202) 237-2727 E-mail: kdunn@bsfllp.com DOUGH JOE: Espinoza Suit Seeks to Recover Overtime Pay Under FLSA ----------------------------------------------------------------- SELVIN ESPINOZA and ALEJANDRO SUCUP, individually and on behalf of all others similarly situated v. DOUGH JOE LLC D/B/A HINOMARU RAMEN and MIN LEE, an individual, Case No. 1:18-cv-05745-ENV-RML (E.D.N.Y., October 15, 2018), seeks to recover overtime wages under the Fair Labor Standards Act and the New York Labor Law. DOUGH JOE LLC, doing business as Hinomaru Ramen, is a corporation organized under the laws of New York with a principal executive office in Long Island City, New York. Min Lee owns and operates Dough Joe LLC. The Defendants operate a ramen restaurant.[BN] The Plaintiffs are represented by: Helen F. Dalton, Esq. Roman Avshalumov, Esq. HELEN F. DALTON & ASSOCRATES, P.C. 69-12 AUSfifi Street BROOKLYN OFFICE. Forest Hills, NY 11375 Telephone: (718) 263-9591 E-mail: HFDalton6912@Gmail.com avshalumovr@yahoo.com DR. CATHERINE E. CRIM: Faces Smallwood et al. Suit in D. Oregon --------------------------------------------------------------- RACHEL HANEY SMALLWOOD; CHANDRA LOVELAND; and LAURA WICKIZER, individually and on behalf of all others similarly situated, Plaintiff v. DR. CATHERINE E. CRIM; DR. STEVEN SHELTON; and D. BROWN, Defendants, Case No. 3:18-cv-01816-BR (D. Or., Oct. 14, 2018). The case is assigned to Judge Anna J. Brown. The Plaintiff Smallwood represented by: Leonard Randolph Berman, Esq. LAW OFFICE OF LEONARD R. BERMAN 9220 SW Barbur Blvd., Suite 119 Portland, OR 97219 Telephone: (503) 516-3715 Facsimile: (815) 642-9117 E-mail: easyrabbi@yahoo.com The Plaintiff Loveland and Wickizer appear pro se. EC MOBILE: Faces Class Action in New York for ADA Breach -------------------------------------------------------- A class action lawsuit has been filed against EC Mobile LLC. The case is styled as Jose Figueroa on behalf of himself and all others similarly situated, Plaintiff v. EC Mobile LLC doing business as: Cell Doc, Defendant, Case No. 1:18-cv-10048 (S.D. N.Y., Oct. 31, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. Cell Doc repairs electronic devices, including smartphones (iPhones, Samsung Galaxy, and more), iPads and other tablets, laptops, and gaming gadgets.[BN] The Plaintiff appears pro se. ESCAPE THE ROOM: Figueroa Sues Over Blind-Inaccessible Web Site --------------------------------------------------------------- JOSE FIGUEROA, on behalf of himself and all others similarly situated v. ESCAPE THE ROOM EXPERIENCE, LLC, Case No. 1:18-cv-09424 (S.D.N.Y., October 15, 2018), is a civil rights action against the Defendant for its alleged failure to design, construct, maintain, and operate its Web site -- http://www.escapetheroom.com/-- to be fully accessible to and independently usable by Plaintiff and other blind or visually-impaired people. Escape the Room Experience, LLC, is a New York Limited Liability Company doing business in New York. Escape the Room is an interactive Entertainment Venue that operates ESCAPE THE ROOM physical locations, as well as http://www.escapetheroom.com/, offering features, which should allow all consumers to access the goods and services which the Defendant offers in connection with their physical locations.[BN] The Plaintiff is represented by: Joseph H. Mizrahi, Esq. COHEN & MIZRAHI LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Telephone: (929) 575-4175 Facsimile: (929) 575-4195 E-mail: Joseph@cml.legal - and - Jeffrey M. Gottlieb, Esq. Dana L. Gottlieb, Esq. GOTTLIEB & ASSOCIATES 150 East 18th Street, Suite PHR New York, NY 10003-2461 Telephone: (212) 228-9795 E-mail: nyjg@aol.com danalgottlieb@aol.com EUBA CORP: Does Not Properly Pay Workers, Buckles Suit Says ----------------------------------------------------------- Mary Buckles, on behalf of herself and those similarly situated, Plaintiff, v. EUBA Corp., Steve DePugh, and David Sharpe, Defendants, Case No. 3:18-cv-355 (S.D. Ohio, October 30, 2018) seeks appropriate monetary, declaratory, and equitable relief based on Defendants' willful failure to compensate Plaintiff and similarly-situated individuals with minimum wages and overtime wages as required by the Fair Labor Standards Act, the Ohio Constitution, and the Ohio Minimum Wage Fairness Act. The Defendants repeatedly and willfully violated the Fair Labor Standards Act, the OMFWSA, the Ohio Constitution, and the Ohio Prompt Pay Act by failing to adequately reimburse delivery drivers for their delivery-related expenses, thereby failing to pay delivery drivers the legally mandated minimum wage wages for all hours worked, says the complaint. Mary Buckles is a resident of Ohio and was an employee of the Defendant. Defendants operate approximately 20 Domino's Pizza franchises in Ohio -- the EUBA stores. Defendants' EUBA stores are part of a single integrated enterprise called EUBA Corp. It was founded by its owners, Steve DePugh and David Sharpe.[BN] The Plaintiff is represented by: Andrew Biller, Esq. Andrew Kimble, Esq. Philip Krzeski. Esq. Markovits, Stock & DeMarco, LLC 3825 Edwards Road, Suite 650 Cincinnati, OH 45209 Phone: 513-651-3700 Fax: 513-665-0219 Email: abiller@msdlegal.com akimble@msdlegal.com pkrzeski@msdlegal.com FACEBOOK INC: Failed to Secure Users' Personal Info, Wiik Says -------------------------------------------------------------- CONNOR WIIK, on behalf of himself and all others similarly situated, the Plaintiff, vs. FACEBOOK, INC., the Defendant, Case 3:18-cv-06511 (N.D. Cal., Oct. 24, 2018), seeks to redress injuries suffered by Plaintiff and Class Members as a result of Facebook's failure to secure and safeguard the sensitive personally identifiable information ("PII") collected from Plaintiff and other Class Members by Facebook in connection with their use of Defendant's website and/or mobile device application. According to the complaint, Facebook requires its users to provide PII upon creating an account and in the course of its business, Facebook collects and maintains an extensive amount of its users' personal information including, without limitation, names, email addresses, telephone numbers, dates of birth, credit card numbers, private messages, application permissions, locations, education and work history, and photographs. Users expect Facebook to maintain strict confidentiality of the PII. However, Defendant failed, and continues to fail, to provide adequate protection of its users' PII and has egregiously failed to provide sufficient and timely notice or warning of potential and actual cybersecurity breaches to its users, the lawsuit says. On September 28, 2018, Facebook first issued a statement announcing that it had "discovered that an external actor attacked our systems and exploited a vulnerability" that allowed them to "steal Facebook access tokens which they could then use to take over people's accounts" (the "Data Breach"). The Data Breach impacted almost 50 million Facebook user accounts.[BN] Attorneys for Plaintiff and the Class: Marc L. Godino, Esq. Brian Murray, Esq. GLANCY PRONGAY & MURRAY LLP 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 Telephone: (310) 201-9150 Facsimile: (310) 432-1495 E-mail: mgodino@glancylaw.com bmurray@glancylaw.com - and - Paul C. Whalen, Esq. LAW OFFICE OF PAUL C. WHALEN, P.C. 768 Plandome Road Manhasset, NY 11030 Telephone: (516) 426-6870 Facsimile: (212) 658-9685 E-mail: paul@paulwhalen.com - and - Jasper D. Ward, Esq. JONES WARD PLC 1205 E Washington St, Suite 111 Louisville, KY 40206 Telephone: (502) 882-6000 E-mail: jasper@jonesward.com FEDEX GROUND: Bid to Seal Doc in Padovano Denied w/o Prejudice -------------------------------------------------------------- In the case, JEFFREY PADOVANO, CHRIS ARBER, MICHAEL TUTTLE and ANDREW MITRANO, on behalf of themselves and others similarly situated, Plaintiffs, v. FEDEX GROUND PACKAGE SYSTEM, INC., Defendant, Case No. 16-CV-17-FPG (W.D. N.Y.), Judge Frank P. Geraci, Jr. of the U.S. District Court for the Western District of New York denied without prejudice the Defendant's Motion to Seal. The named Plaintiffs, on behalf of themselves and others similarly situated, bring the putative class action against the Defendant. Pursuant to the Protective Order entered on June 23, 2017 by Magistrate Judge Schroeder, the Defendant seeks to seal a document submitted in connection with its opposition to the Plaintiffs' motion for class certification. The Plaintiffs have not filed any opposition to the Defendant's Motion to Seal. Judge Geraci finds that the Defendant provides no explanation as to why the document should be sealed, short of reference to the Protective Order. But such a reference is insufficient -- even if material is properly designated as Confidential or Highly Confidential by a protective order governing discovery, that same material might not overcome the presumption of public access once it becomes a judicial document. Moreover, the Protective Order itself contemplates that the parties submitting documents designated "confidential" in conjunction with a motion will seek leave of Court to submit it or file it under seal. Accordingly, the Judge denied without prejudice the Defendant's Motion to Seal. The Defendant may refile its motion to seal with accompanying support within 14 days of the Decision and Order. If no action is taken within those 14 days, the Court will issue further orders regarding the document submitted for sealing. A full-text copy of the Court's Sept. 28, 2018 Decision and Order is available at https://is.gd/MiSHBA from Leagle.com. Jeffrey Padovano, Chris Arber, Michael Tuttle & Andrew Mitrano, on behalf of themselves and others similarly situated, Plaintiffs, represented by Harold L. Lichten -- hlichten@llrlaw.com -- Lichten & Liss-Riordan, P.C., Matthew Thomson -- mthomson@llrlaw.com -- Lichten & Liss-Riordan, P.C., pro hac vice, Robert Friedman -- sam@legalsurvival.com -- Friedman & Ranzenhofer, P.C., Samuel A. Alba, Friedman & Ranzenhofer, P.C., Mark J. Gottesfeld -- mgottesfeld@winebrakelaw.com -- Winebrake & Santillo, LLC, Peter D. Winebrake -- pwinebrake@winebrakelaw.com -- Winebrake & Santillo, LLC, R. Andrew Santillo -- asantillo@winebrakelaw.com -- Winebrake & Santillo, LLC, Robert Eugene DeRose -- bderose@barkanmeizlish.com -- Barkan Meizlish Handleman Goodin DeRose Wentz, LLP & Shannon Liss-Riordan -- sliss@llrlaw.com -- Lichten & Liss-Riordan, P.C., pro hac vice. FEDEX Ground Package System, Inc., Defendant, represented by Joseph Peter McHugh, FedEx Ground Package System, Inc., Rosa Copeland Miller, FedEx Ground Package System, Inc. & Susan C. Roney -- sroney@nixonpeabody.com -- Nixon Peabody LLP. FEDEX GROUND: Fails to Pay Overtime and Minimum Wages, Dolan Says ----------------------------------------------------------------- PHILIP DOLAN, individually and on behalf of others similarly situated v. FEDEX GROUND PACKAGE SYSTEM, INC., a Delaware corporation; and DOES 1 through 100, inclusive, Case No. 18CV336258 (Cal. Super., Santa Clara Cty., October 16, 2018), accuses the Defendants of violating the California Labor Code by failing to, among other things, pay overtime, minimum wages and meal period premiums. FedEx Ground Package System, Inc., is a Delaware corporation. The Plaintiff is unaware of the true names or capacities of the Doe Defendants. FedEx Ground provides business-to-business package shipping and ground delivery services. The Company provides day-certain service to every business address in the United States and Canada, as well as residential delivery to through its FedEx Home Delivery service.[BN] The Plaintiff is represented by: Matthew R. Bainer, Esq. THE BAINER LAW FIRM 1901 Harrison St., Suite 1100 Oakland, CA 94612 Telephone: (510) 922-1802 Facsimile: (510) 844-7701 E-mail: mbainer@bainerlawfirm.com FLAGSHIP FACILITY: De Orozco Suit Moved to S. D. California ----------------------------------------------------------- Marta L. Ceron De Orozco, individually and on behalf of all similarly situated employees of Defendants in the State of California, the Plaintiff, vs. Flagship Facility Services, Inc. and Does 1 through 50, inclusive, the Defendants, Case No. 37-02018-00040481, was removed from the Superior Court of California, San Diego, to the U.S. District Court for the Southern District of California (San Diego) Oct. 18, 2018. The Southern District of California Court Clerk assigned Case No. 3:18-cv-02397-JLS-JLB. The case is assigned to the Hon. Judge Janis L. Sammartino. The suit alleges Fair Labor Standards Act violation.[BN] Attorneys for Plaintiff: Laura M. Supanich, Esq. 3555 Fifth Avenue, Suite 200 San Diego, CA 92103 Telephone: (619) 692-0800 Attorneys for Defendant: Arthur M. Eidelhoch, Esq. LITTLER MENDELSON, P.C. 333 Bush Street, 34th Floor San Francisco, CA 94104 Telephone: (415) 433-1940 Facsimile: (415) 399-8490 E-mail: aeidelhoch@littler.com FLOWERS FOODS: Rios' Claims in Medrano Dismissed w/o Prejudice -------------------------------------------------------------- In the case, PAUL MEDRANO, on his own behalf and on behalf of all others similarly situated, Plaintiff, v. FLOWERS FOODS, INC., and FLOWERS BAKING CO. OF EL PASO, LLC, Defendants, Civ. No. 16-350 JCH/KK (D. N.M.), Judge Judith C. Herrera of the U.S. District Court for the District of New Mexico (i) denied the Plaintiff's Motion for Leave to File Amended Complaint, and (ii) granted the Defendants' Opposed Motion to Dismiss or, in the Alternative, to Compel Individual Arbitration as to Plaintiff Jamie Rios. Flowers Foods, Inc. is a Georgia corporation that develops and markets bakery products for national sale through a network of subsidiary bakeries. One of these is Flowers Baking Co. of El Paso, which operates 13 warehouses throughout New Mexico and 10 warehouses in Texas. Like the other subsidiaries, Flowers El Paso is responsible for distributing baked goods in a specific geographical area and operating Flowers Foods' local sales and distribution operations. Individual distributors such as the Plaintiff are hired to sell and distribute the products to the Defendants' customers. In the case, the Plaintiffs claim that Flowers Foods and Flowers El Paso violated the Fair Labor Standards Act ("FLSA") by misclassifying lead Plaintiff Medrano and the opt-in Plaintiffs, who are bakery distributor drivers, as independent contractors. This misclassification, Medrano claims, has deprived them of overtime pay to which they are entitled. On April 27, 2016, Medrano filed his Complaint in the judicial district asserting claims that the Defendants had improperly characterized him (and those similarly situated) as independent contractors in order to escape their obligation to pay overtime, in violation of the FLSA, and the New Mexico Minimum Wage Act ("NMMWA"). On May 23, 2016, the Defendants filed their answer. Subsequently, numerous other distributors have filed their consents to become the named Plaintiffs in the case. On July 1, 2016, only weeks after Medrano filed suit, the parties submitted to the Court a Joint Status Report and Provisional Discovery Plan proposing a Sept. 1, 2016 deadline for amending pleadings and joining parties. On July 12, 2016, the Court adopted the parties' proposed Sept. 1, 2016 deadline to amend pleadings and join parties. The July 12, 2016 Order also required the parties, following the Court's ruling regarding conditional collective action certification, to submit a new, proposed case management order. On Oct. 14, 2016, the parties filed a Joint Motion to Amend/Correct the July 12, 2016 Order. Notably, the parties did not propose new deadlines regarding pleading amendments and joinder of parties. Five days later, the Court granted the Joint Motion to Amend/Correct. On July 3, 2017, the Court conditionally certified Medrano's FLSA claims as a collective action, but denied conditional certification of his NMMWA claims, concluding that if the Plaintiffs wish to pursue their NMMWA claim as a collective action, they must seek class certification under Rule 23. On Oct. 2, 2017, the opt-in period for those distributors wishing to join the FLSA collective action expired. On Oct. 3, 2017, the parties submitted a Joint Motion to Further Amend the Joint Amended Provisional Discovery Plan and to Amend Case Management Deadlines. Once again, the parties did not propose another deadline to amend pleadings or join parties. The next day, the Court granted that motion. On Oct. 20, 2017, Medrano filed the present motion for leave to amend his complaint. In his proposed amended complaint, Medrano seeks to add nine individuals as named Plaintiffs (all of whom are already opt-in plaintiffs with regard to the FLSA collective action) for the purpose of asserting their individual claims under the NMMWA. The proposed amended complaint would also add the individual retaliation claim of David Salas (one of the nine) under the NMMWA. The Defendants oppose the amendment on the grounds that the request is untimely and Medrano has not shown good cause for his failure to act in a timely manner. The Defendants' Opposed Motion to Dismiss or, in the Alternative, to Compel Individual Arbitration pertains only to opt-in Plaintiff Rios, who filed his Notice of Consent to Join Lawsuit on Sept. 22, 2017. The Defendants contend that under the Federal Arbitration Act ("FAA"), Rios' claims should be dismissed or stayed because he entered a valid and binding arbitration agreement, which includes a class action waiver. Rios did not file a response to the motion. Under our Local Rules for this district, failure to respond constitutes consent to grant the motion. Judge Herrera finds that Medrano has not adequately explained why he has good cause for failing to move for such an extension and modification of the scheduling order, as required under Rule 16(d). Instead, his arguments focus mainly on why Defendants will not be prejudiced by the amendment and why the amendment will not waste judicial resources. What is lacking from Medrano's briefs is an explanation of his failure to file a motion for extension of the deadline. He has failed to meet his burden under Rule 16(d) to show good cause to alter the scheduling order. Having concluded that Medrano has failed to show good cause under Rule 16(b)(4), the Judge says he needs not reach the question of whether leave to amend should be granted under Rule 15(a). The Judge is satisfied that the Arbitration Agreement is valid, enforceable, and applicable to Rios' claims against the Defendants in the case. It is not only signed by the parties and is unambiguous, but also is supported by adequate consideration. The Arbitration Agreement states that it applies to claims alleging that the distributor was misclassified as an independent contractor, any other claims premised up the distributor's alleged status as anything other than an independent contractor and claims for alleged unpaid compensation under either federal or state law. Thus, it applies to Rios' claims against the Defendants. Finally, in several places the Arbitration Agreement states in straightforward language that claims covered by the agreement must be resolved by an individual, binding arbitration and that the parties are giving up the right to a collective or class action. For the goregoing reasons, Judge Herrera (i) denied the Plaintiff's Motion for Leave to File Amended Complaint, and (ii) granted the Defendants' Opposed Motion to Dismiss or, in the Alternative, to Compel Individual Arbitration. The claims of Rios are dismissed without prejudice. A full-text copy of the Court's Sept. 28, 2018 Memorandum Opinion and Order is available at https://is.gd/av89CD from Leagle.com. Paul Medrano, on his own behalf and on behalf of all others similarly situated, Plaintiff, represented by Jenny Faye Kaufman -- jenny@thejonesfirm.com -- Jones, Snead, Wertheim & Clifford, P.A., Jerry Todd Wertheim, Jones, Snead, Wertheim & Wentworth PA & Samuel C. Wolf, Jones Snead Wertheim & Clifford PA. Flowers Food, Inc. & Flowers Baking Co. of El Paso, LLC, Defendants, represented by Amelia M. Willis, Esq. -- amie.willis@ogletree.com -- Ogletree Deakins Nash Smoak & Stewart PC, M. Katherine K. Paulus, Esq. -- Katherine.paulus@ogletree.com -- Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Nelson Franse, Esq. -- nfranse@rodey.com -- Rodey Dickason Sloan Akin & Robb PA & Patrick F. Hulla, Esq. -- Patrick.hulla@ogletree.com -- Ogletree, Deakins, Nash, Smoak & Stewart, P.C. GATES CORPORATION: Lundine Seeks Conditional Class Certification ---------------------------------------------------------------- In the class action lawsuit captioned as PEGGY LYNN LUNDINE on behalf of herself and others similarly situated, the Plaintiff, vs. GATES CORPORATION, the Defendant, Case 6:18-cv-01235-EFM-JPO (D. Ks.), the Plaintiff asks the Court for an order: a. granting conditional class certification regarding the Plaintiff’s claims under section 216(b) of the Fair Labor Standards Act regarding all nonexempt hourly manufacturing employees who worked at Defendant Gates Corporation’s plants three years from the date of the Court's order; b. directing the Defendant to provide a list of names of these persons within 14 days of the Court's order along with their last known home addresses, phone numbers, and email addresses, all in a workable electronic format for mailing purposes; c. providing the last four digits of social security numbers for all class members whose mailed notices are returned undeliverable so Plaintiff can locate a viable mailing address; d. authorizing the Plaintiff to send the notice of claims and right to opt-in forms; and e. granting other relief the Court deems just and proper.[CC] Attorneys for Plaintiff: Brendan J. Donelon, Esq. 420 Nichols Road, Suite 200 Kansas City, MI 64112 Telephone: (816) 221-7100 Facsimile: (816) 709-1044 E-mail: brendan@donelonpc.com - and - Daniel W. Craig 6614 Clayton Rd., #320 St. Louis, Missouri 63117 Telephone: (314) 297-8385 Facsimile: (816) 709-1044 E-mail: dan@donelonpc.com Attorneys for Defendant: David L. Heinemann, Esq. Christopher S. Shank, Esq. SHANK & MOORE, LLC 1968 Shawnee Mission Parkway, Suite 100 Mission Woods, KS 66205 Telephone: 816 471 0909 Facsimile: 816 471 3888 E-mail: davidh@shankmoore.com chris@shankmoore.com - and - Colin L. Barnacle, Esq. Christopher J. Eby, Esq. AKERMAN, LLP 1900 16 th Street, Ste. 1700 Denver, CO 80202 Telephone: (303) 260-7712 Facsimile: (303) 260-7714 E-mail: christopher.eby@akerman.com colin.barnacle@akerman.com GENERAL MILLS: Jackson Sues over Sale of Mislabeled Cereal ---------------------------------------------------------- CHARLENE M. JACKSON, individually and on behalf of all others similarly situated, Plaintiff v. GENERAL MILLS, INC.; and DOES 1 through 10, inclusive, Case No. 37-2018-00052079-CU-FR-CTL (Cal. Super., San Diego Cty., Oct. 12, 2018) is an action against the Defendants for intentionally packing its Annie's HOMEGROWN brand Cereal Products in opaque containers that contain 50% empty space in violation of the consumer protection and labeling laws. General Mills, Inc. manufactures and markets branded consumer foods worldwide. The company was founded in 1866 and is based in Minneapolis, Minnesota. [BN] The Plaintiff is represented by: Ronald A. Marron, Esq. Michael T. Houchin, Esq. LAW OFFICES OF RONALD A. MARRON 651 Arroyo Drive San Diego, CA 92103 Telephone: (619) 696-9006 Facsimile: (619) 564-6665 E-mail: ron@consumersadvocates.com mike@consumersadvocates.com GENESIS FS: Wright Sues over Marketing Telephone Calls ------------------------------------------------------ NICHOLAS WRIGHT, Individually and On Behalf of All Others Similarly Situated, the Plaintiff, vs. GENESIS FS CARD SERVICES, INC. d/b/a BANKCARD SERVICES, the Defendant, Case 3:18-cv-02375-BAS-JLB (S.D. Cal., Oct. 17, 2018), seeks damages, injunctive relief, and any other available legal or equitable remedies, resulting from the illegal actions of Defendants in negligently and/or willfully or knowingly contacting Plaintiff on his cellular telephone, in violation of the Telephone Consumer Protection Act, thereby invading Plaintiff's privacy. The Defendant provides merchant services, better known as credit card processing, which is the handling of electronic payment transactions for merchants. The Defendant regularly makes autodialed telephone calls to consumers, seeking potential merchants, in order to market its line of payment services and other related products. The Plaintiff is not and has never been a merchant, nor did he at any point shop for credit card processing services. The Plaintiff never provided authorization to receive autodialed marketing calls on his cellular telephone from the Defendant. According to the complaint, in November of 2016, the Defendant initiated repeated marketing telephone calls from the phone number, 559-282-2648, to Plaintiff's cellular phone ending with "1125," using an automatic telephone dialing system. The Defendants incessantly called Plaintiff, oftentimes, multiple times per day, to market and solicit Plaintiff's business. On at least two occasions, Plaintiff would answer the calls only to hear a pause, clicking, and dead air before the system disconnected his call. Returning the call to 559-282-2648 revealed a recorded message stating, "Thank you for calling Bankcard Services." The message was robotic, and no live representative was on the line. A live representative confirmed the number dialed 559-282-2648 was in fact Bankcard Services, the lawsuit says.[BN] Attorneys for Plaintiff: Yana A. Hart, Esq. HYDE & SWIGART, APC 2221 Camino Del Rio South, Suite 101 San Diego, CA 92108-3609 Telephone: (619) 233-7770 Facsimile: (619) 297-1022 E-mail: yana@westcoastlitigation.com - and - Daniel G. Shay, Esq. LAW OFFICE OF DANIEL G. SHAY 409 Camino Del Rio south, Suite 101B San Diego, CA 92108 Telephone: (619) 222-7492 Facsimile: (866) 431-3292 E-mail: danielshay@tcpafdcpa.com GLK FOODS: Settlement in Jimenez Suit Has Final Approval -------------------------------------------------------- In the case, ALEJANDRO JURADO JIMENEZ, et al., Plaintiffs, v. GLK FOODS, LLC and RYAN A. DOWNS, Defendants, and JOSE ENRIQUE RAMIREZ, et al., Plaintiffs, v. GLK FOODS, LLC and RYAN A. DOWNS, Defendants, Civil Action Nos. 12-cv-209, 12-cv-210 (E.D. Wis.), Judge William C. Griesbach of the U.S. District Court for the Eastern District of Wisconsin, Green Bay Division, granted the Plaintiffs' Unopposed Motion for Final Approval of Class Action Settlement. The Judge has reviewed Plaintiffs' motion and held a public hearing on the fairness of the Settlement Agreement, at which objectors have appeared or submitted written objections. Accordingly, he approved the Settlement as set forth in the Settlement Agreement. He directed the Fund Custodian/Administrator, Simpluris, and Claims Administrator, Centro de los Derechos del Migrante, Inc. to issue settlement payments to class members who have submitted valid claim forms pursuant to the process set out in the Order Regarding Distribution of Settlement Amounts entered June 29, 2018. Upon entry of the order, the Class Members as well as any unknown class members who timely file a claim and are approved by the counsel for the Plaintiffs and the counsel for the Defendants as provided in the Distribution Order, on behalf of themselves and each of their heirs, representatives, successors, assigns, and attorneys, will be deemed to release and forever discharge Defendants from any and all claims as outlined and described in the Settlement Agreement. The non-participating class members do not release any claims against the Defendants. As set out in the parties' Settlement Agreement, the Court will retain jurisdiction with respect to the implementation and enforcement of the terms of the Settlement Agreement, to the extent permitted by law, including over implementation and enforcement of the Distribution Order. A full-text copy of the Court's Sept. 28, 2018 Order is available at https://is.gd/7FhA5J from Leagle.com. Jose Enriquez Ramirez, Isidro Enriquez Ramirez, Jiovanni Mendez Lancon, Francisco Ruiz Figueroa, Javier Jimenez Vera, Salvador Chavez Jurado, Antonio Arroyo Jurado, Jacobo Martinez Gallardo, Jose Manuel Lancon Jurado, Alejandro Ruiz Rosas, Gustavo Moreno Ortiz, Javier Jimenez Ramirez, Jose Martinez Jurado, J Santos Soto Vazquez & Gustavo Vera Ramirez, Plaintiffs, represented by Bruce Goldstein, Farmworker Justice, Christopher J. Wilmes -- cwilmes@hsplegal.com -- Hughes Socol Piers Resnick & Dym Ltd, Jose J. Behar -- jbehar@hsplegal.com -- Hughes Socol Piers Resnick & Dym Ltd, Joshua Karsh -- jkarsh@hsplegal.com -- Hughes Socol Piers Resnick & Dym Ltd & Matthew J. Piers -- mpiers@hsplegal.com -- Hughes Socol Piers Resnick & Dym Ltd. Fermin Jimenez Rosas, Plaintiff, represented by Joshua Karsh, Hughes Socol Piers Resnick & Dym Ltd, Bruce Goldstein, Farmworker Justice, Christopher J. Wilmes, Hughes Socol Piers Resnick & Dym Ltd & Jose J. Behar, Hughes Socol Piers Resnick & Dym Ltd. Jonathan Vicente Baca Jurado, Plaintiff, represented by Joshua Karsh, Hughes Socol Piers Resnick & Dym Ltd, Matthew J. Piers, Hughes Socol Piers Resnick & Dym Ltd, Bruce Goldstein, Farmworker Justice & Jose J. Behar, Hughes Socol Piers Resnick & Dym Ltd. GLK Foods LLC & Ryan A Downs, Defendants, represented by Michael Aldana -- michael.aldana@quarles.com -- Quarles & Brady LLP & Steven M. Kruzel -- steven.kruzel@quarles.com -- Quarles & Brady LLP. HILLCREST PHARMACY: Advanced Dermotology Hits Illegally-faxed Ads ----------------------------------------------------------------- Advanced Dermotology, Plaintiff, v. Hillcrest Pharmacy, Inc., Defendant, Case No. 18-cv-02336 (N.D. Ohio, October 8, 2018), is a class action complaint alleging violations of the Telephone Consumer Protection Act. Defendant sells pharmaceutical drugs in the United States and solicits medical offices with its mail-service contact information and a supply list of prescription drugs in various concentrations available to order. Plaintiff received an unsolicited facsimile from Defendant on its office fax machine without consent, notes the complaint. [BN] Plaintiff is represented by: Ronald I. Frederick, Esq. Michael L. Berler, Esq. Michael L. Fine, Esq. FREDERICK & BERLER, LLC 767 East 185th Street Cleveland, OH 44119 Tel: (216) 502-1055 Fax: (216) 566-0750 Email: ronf@clevelandconsumerlaw.com mikeb@clevelandconsumerlaw.com HOWELL OILFIELD: Beck Sues Over Unpaid Overtime Wages ----------------------------------------------------- Craig Beck, individually and on behalf of all others similarly situated, Plaintiff v. Howell Oilfield Enterprises, LLC, Defendant, Case No. 7:18-cv-189 (W.D. Tex., October 30, 2018) is bought under the Fair Labor Standards Act for declaratory judgment, monetary damages, liquidated damages, prejudgment interest, civil penalties and costs, including reasonable attorneys' fees as a result of Defendant's failure to pay Plaintiff and other Operators and Lead Operators lawful overtime compensation for hours worked in excess of 40 hours per week. Craig Beck is a resident and citizen of Pope County, Arkansas. He was employed by Defendant as a Flowback Operator within the three years preceding the filing of this Complaint. Mr. Beck says the Defendant has willfully and intentionally committed violations of the FLSA for at least three years prior to the filing of this Complaint. Howell Oilfield Enterprises, LLC, is an Oklahoma limited liability company, created and existing under and by virtue of the laws of the State of Oklahoma.[BN] The Plaintiff is represented by: Chris Burks, Esq. Josh Sanford, Esq. SANFORD LAW FIRM, PLLC One Financial Center 650 South Shackleford Road, Suite 411 Little Rock, AR 72211 Telephone: (501) 221-0088 Facsimile: (888) 787-2040 Email: josh@sanfordlawfirm.com chris@sanfordlawfirm.com HUAZHU GROUP: Hayes Sues Over Share Drop from Data Breach --------------------------------------------------------- Branden Hayes, individually and on behalf of all others similarly situated, Plaintiff, v. Huazhu Group Ltd. and Min (Jenny) Zhang, Defendants, Case No. 18-cv-08633 (C.D. Cal., October 8, 2018), seeks to pursue remedies under the Securities Exchange Act of 1934. Huazhu operates hotels in China. On August 28, 2018, media outlets reported that Chinese police were investigating a possible leak of client information from Huazhu, stating that nearly 500 million pieces of customer-related information, including registration information, personal data, and booking records, had emerged in an online post. On this news, Huazhu's share price fell $1.55 per share, or approximately 4.36%, to close at $33.98 per share on August 28, 2018, dropping $1.09 per share on August 30, 2018, $0.67 per share on September 4, 2018, $2.46 per share on September 5, 2018, and $0.26 on September 6, 2018, to close at $31.03 on September 6, 2018. Defendants failed to disclose to investors that the Company lacked adequate security measures to protect customer information. Hayes purchased Huazhu securities and lost substantially, notes the complaint. Huazhu's American Depository Shares trade on the NASDAQ exchange. Min (Jenny) Zhang was the Chief Executive Officer of the Company at all relevant times. [BN] Plaintiff is represented by: Lionel Z. Glancy, Esq. Robert V. Prongay, Esq. Lesley F. Portnoy, Esq. Charles H. Linehan, Esq. GLANCY PRONGAY & MURRAY LLP 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 Telephone: (310) 201-9150 Facsimile: (310) 201-9160 Email: info@glancylaw.com - and - Howard G. Smith, Esq. LAW OFFICES OF HOWARD G. SMITH 3070 Bristol Pike, Suite 112 Bensalem, PA 19020 Telephone: (215) 638-4847 Facsimile: (215) 638-4867 HUME ENTERPRISES: Milosevic Seeks to Recover Minimum and OT Wages ----------------------------------------------------------------- CASSIE MILOSEVIC, and all others similarly situated under 29 U.S.C 206(B) v. HUME ENTERPRISES, LLC, a Florida Limited Liability Company, AARON HUME, individually and KEVIN HUME, individually, Case No. 1:18-cv-24231-RNS (S.D. Fla., October 15, 2018), seeks to recover alleged unpaid overtime and minimum wage compensation, as well as an additional amount as liquidated damages, costs and reasonable attorney's fees pursuant to the Fair Labor Standards Act. Hume Enterprises operated a business under the fictitious name of Toms NFL Sports Bar, which is registered with the Florida Division of Corporations as a Fictitious Name and reflects Hume Enterprises as the owner. Hume Enterprises employed the Plaintiff as a Waitress at Toms NFL Sports Bar located in Miami Springs, Florida. The Individual Defendants are officers or directors of Hume Enterprises.[BN] The Plaintiff is represented by: Henry Hernandez, Esq. LAW OFFICE OF HENRY HERNANDEZ, P.A. 2655 Le Jeune Road, Suite 802 Coral Gables, FL 33134 Telephone: (305) 771-3374 E-mail: Henry@HHLAWFLORIDA.com - and - Monica Espino, Esq. ESPINO LAW, PL 2655 S. LeJeune Road, Suite 802 Coral Gables, FL 33134 Telephone: (305) 704-3172 Facsimile: (305) 722-7378 E-mail: me@espino-law.com INDEPENDENT RECOVERY: Furia Sues Over Debt Collection Practices --------------------------------------------------------------- A class action lawsuit has been filed against Independent Recovery Resources, Inc. The case is styled as Joshua Furia on behalf of himself and all others similarly situated, Plaintiff v. Independent Recovery Resources, Inc., Defendant, Case No. 2:18-cv-06102 (E.D. N.Y., Oct. 31, 2018). The Plaintiff filed the case under the Fair Debt Collection Practices Act. Independent Recovery Resources, Inc. is a full-service debt collection agency dedicated to the collection and credit industry. IRR provides first party, third party, debt-acquisitions, call blasting and legal services.[BN] The Plaintiff is represented by: Mitchell L. Pashkin, Esq. 775 Park Avenue, Ste. 255 Huntington, NY 11743 Phone: (631) 335-1107 Email: mpash@verizon.net J C TREE: Marte Seeks to Recover Overtime Pay Under FLSA, NYLL -------------------------------------------------------------- ANTONY LAMAR MARTE, individually and on behalf of those individuals similarly situated v. J C TREE CARE NY CORP., MARTHA VELASCO, and JUAN CARLOS, Case No. 1:18-cv-05749 (E.D.N.Y., October 15, 2018), alleges that pursuant to the Fair Labor Standards Act and the New York Labor Law, the Plaintiff is entitled to recover from the Defendants overtime compensation for all hours worked in excess of 40 hours per week. J C Tree Care is a domestic limited liability company operating in Ridgewood, New York. The Individual Defendants are owners, principals or agents of J C Tree Care. J C Tree Care operates as a tree removal business.[BN] The Plaintiff is represented by: Christopher K. Collotta, Esq. ZABELL & COLLOTTA, P.C. 1 Corporate Drive, Suite 103 Bohemia, NY 11716 Telephone: (631) 589-7242 Facsimile: (631) 563-7475 E-mail: Ccollotta@laborlawsny.com JAX DIRTWORKS: Accused by Gurney of Not Paying Overtime Wages ------------------------------------------------------------- MICHAEL GURNEY, For Himself And All Others Similarly Situated v. JAX DIRTWORKS, INC., DRUE HOLDEMAN and JENNIFER HOLDEMAN, Case No. 3:18-cv-01217 (M.D. Fla., October 15, 2018), alleges that the Plaintiff earned, but did not receive, overtime wages calculated at time and one-half times his regular rate of pay for all time he spent working over 40 hours per week from the Defendants. Jax Dirtworks, Inc., is a Florida for-profit that conducts its for-profit business in Florida and maintains it office and principal place of business in Jacksonville, Duval County, Florida. The Individual Defendants are officers, owners and operators of Dirtworks. Dirtworks provides land clearing services, excavation services, grading, hauling and delivery.[BN] The Plaintiff is represented by: Brian H. Pollock, Esq. FAIRLAW FIRM 7300 N. Kendall Drive, Suite 450 Miami, FL 33156 Telephone: (305) 230-4884 Facsimile: (305) 230-4844 E-mail: brian@fairlawattorney.com JEFFREY CAMPBELL: Violates ADA, Kiler Suit Says ----------------------------------------------- A class action lawsuit has been filed against Jeffrey Campbell LLC, et al. The case is styled as Marion Kiler individually and as the representative of a class of similarly situated persons, Plaintiff v. Jeffrey Campbell LLC, ABC Internet, Inc. doing business as: Jeffrey Campbell, Defendants, Case No. 1:18-cv-06072 (E.D. N.Y., Oct. 30, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. Jeffrey Campbell is a contemporary shoe brand that offers a plethora of styles for people of all colors, shapes, and identities.[BN] The Plaintiff appears pro se. JILDOR SHOES: Fischler Sues Footwear Retailer Under ADA ------------------------------------------------------- A class action lawsuit has been filed against Jildor Shoes, Inc. under the Americans with Disabilities Act. The case is styled as Brian Fischler individually and on behalf of all other persons similarly situated, Plaintiff v. Jildor Shoes, Inc., Defendant, Case No. 1:18-cv-06107 (E.D. N.Y., Oct. 31, 2018). Jildor Shoes, Inc. is an e-tailer and retailer of fine footwear. The company's line of business includes the retail sale of mens, womens and childrens footwear.[BN] The Plaintiff appears pro se. JULIAN SPENCE: Heberle Seeks to Certify Class of Purchasers ----------------------------------------------------------- KEVIN HEBERLE, individually and On behalf of others similar situated, the Plaintiffs, vs. JULIAN SPENCE a/k/a JUVANE BRYAN SPENCE, the Defendant, Case No. 1:18-cv-02288 (N.D. Ill.), the Plaintiff seeks to certify a class of: "all purchasers of DRIP tokens from Defendant Spence". Excluded from the Class is: (1) Defendant, Defendant's agents, subsidiaries, parents, successors, predecessors, and any entity in which Defendant or its parents have a controlling interest, and those entities' current and former employees, officers, and directors; (2) the Judge to whom this case is assigned and the Judge's immediate family; (3) any person who executes and files a timely request for exclusion from the Class; (4) any person who has had their claims in this matter finally adjudicated and/or otherwise released; and (5) the legal representatives, successors and assigns of any such excluded person.[CC] Attorneys for Plaintiff: Adam S. Tracy, Esq. THE TRACY FIRM, LTD. 141 W. Jackson Blvd., Suite 2172 Chicago, IL 60604 Telephone: 312 754 9499 Facsimile: 630 689 9471 E-mail: at@tracyfirm.com KROGER CO: Bid to Decertify Class in Hardesty FLSA Suit Denied -------------------------------------------------------------- In the case, JOSEPH HARDESTY, et al., Plaintiffs, v. THE KROGER CO., et al., Defendants, Case No. 1:16-cv-298 (S.D. Ohio), Judge Timothy S. Black of the U.S. District Court for the Southern District of Ohio, Western Division, denied both (i) the Defendant's motion to decertify the Plaintiffs' Fair Labor Standards Act ("FLSA") collective action, and (ii) the Plaintiffs' motion for class certification pursuant to Federal Rule of Civil Procedure 23. The case is a lawsuit seeking unpaid overtime wages under the FLSA and Ohio law. The Plaintiffs were employed as Recruiters at Kroger's CoRE Center, which is a call center located in Blue Ash, Ohio, with over 300 employees. The CoRE Center makes outbound calls to and receives inbound calls from online applicants who have applied for employment at various Kroger-owned grocery and retail stores throughout the United States. The Plaintiffs, as CoRE Recruiters, primarily made telephone screening calls to individuals who had applied online to Kroger-owned stores throughout the United States. In 2014, Kroger made a single, uniform decision to classify all CoRE Recruiters as exempt under the FLSA. The Plaintiffs commenced the lawsuit alleging that Kroger's classification decision was unlawful and that they were wrongfully not compensated for hours worked over 40 hours per week. The Plaintiffs assert three claims against Kroger: (1) an FLSA violation premised on Kroger's misclassification of CoRE Recruiters and subsequent failure to compensate the Plaintiffs for overtime hours; (2) a claim under Ohio's Minimum Fair Wage Standards Act, for failure to timely pay those overtime wages, and (3) a claim for unjust enrichment. Kroger argues that CoRE Recruiters are exempt from the FLSA's overtime provisions under the "Administrative Exemption," which exempts employees who are paid at or above a certain salary level and (1) whose primary duty is the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer's customers, and (2) whose primary duty includes the exercise of discretion and independent judgment with respect to matters of significance. It argues, inter alia, that CoRE Recruiters exercise discretion when performing their duties by deciding which applicants to call for telephone interviews and determining which candidates to refer from telephone interviews to final, in-store interviews. The Plaintiffs seek class treatment of their claims. Because the certification methods for their FLSA claims and state law claims differ, there are two motions pending before the Court. First, Kroger has moved to decertify the Plaintiffs' FLSA collective action previously conditionally certified by the Court on July 19, 2016. Second, the Plaintiffs have moved for class certification of their state law claims under Federal Rule of Civil Procedure 23. The Plaintiffs' motion for class certification requests that the Court certifies their Ohio wage claims and approve notice to be sent to the following Ohio class: All employees classified as recruiters, who i) were employed at Kroger's Center of Recruiting Excellence ("CoRE") in Blue Ash, Ohio, at any time from the beginning of CoRE's operations in 2014 to Dec. 1, 2016, and ii) worked in excess of 40 hours during any given workweek. The primary issue in both motions is whether, in light of the fact that testimony from the Plaintiffs, the Opt-In Plaintiffs, and the proposed class-member declarants demonstrates that CoRE recruiters exercise varying amounts of discretion in performing their jobs, the Plaintiffs' claims (and Kroger's individualized Administrative Exemption defenses) should be tried collectively. Judge Black finds that finds that the Plaintiffs have not met the "commonality" requirement of Rule 23, but have met the less-stringent requirement under the FLSA that they be "similarly situated." The testimony before the Court demonstrates that members of the proposed class exercised varying levels of discretion in performing their tasks as CoRE Recruiters. In light of this varying and conflicting testimony, the common question of whether CoRE Recruiters were properly exempted from the FLSA due to the Administrative Exemption -- i.e., whether their primary duties included the exercise of discretion and independent judgment with respect to matters of significance -- cannot be answered on a classwide basis. Accordingly, the Plaintiffs have not met the requirements of Rule 26(a). Additionally, the Plaintiffs claim their proposed class consists of 180 members. Given the factual differences in the testimony from CoRE Recruiters relevant to the main legal issue in the case -- whether CoRE Recruiters were properly exempted from the FLSA -- the Judge finds the class certification to be undesirable and unmanageable. As Plaintiffs have not met the requirements of Rule 26(a) or Rule 26(b), the Plaintiffs' motion for class certification will be denied. Because collective actions under the FLSA are subject to a less stringent requirement than class actions under Rule 23, Kroger's motion is not well-taken. For the foregoing reasons, Judge Black denide both (i) the Plaintiffs' motion for class certification, and (ii) Kroger's motion for decertification of the Plaintiffs' collective action. Also pending before the Court is the Plaintiffs' motion to vacate the discovery deadline, which was previously scheduled for Nov. 17, 2017. They wish to extend the discovery deadline for the purpose of conducting any discovery that might be necessary after class certification. As the Judge denied the Plaintiffs' motion for class certification, their motion to vacate the discovery deadline is similarly denied. The Court will schedule a status conference forthwith, at which point both parties may address the need for additional discovery, if desired. A full-text copy of the Court's Sept. 28, 2018 Order is available at https://is.gd/F1jOyk from Leagle.com. Joseph Hardesty, Derek Chipman & Madeline Hickey, Plaintiffs, represented by Joshua Michael Smith -- jms@sspfirm.com -- Stagnaro Saba and patterson Co., LPA, Peter A. Saba -- pas@sspfirm.com -- FINNEY STAGNARO SABA & PATTERSON, CO. L.P.A. & Sharon J. Sobers -- sjs@sspfirm.com -- FINNEY STAGNARO SABA & PATTERSON, CO. L.P.A. Kroger Co. & Kroger G.O. LLC, Defendants, represented by David Kirsten Montgomery -- David.Montgomery@jacksonlewis.com -- Jackson Lewis LLP, Ryan Michael Martin -- Ryan.Martin@jacksonlewis.com -- Jackson Lewis P.C. & David P. Zins -- dzins@mofo.com -- Jackson Lewis P.C. LAKE CHASE CONDOMINIUM: Sues over Unlawful Towing of Vehicle ------------------------------------------------------------ CRISTINA SCHROER, individually and on behalf of all others similarly situated, Plaintiff v. LAKE CHASE CONDOMINIUM ASSOCIATION, INC., Defendant, Case No. 79290980 (Fla. Cir., Hillsborough Cty., Oct. 12, 2018) alleges that the Defendant violated the Florida statutes in unlawfully removing and towing the Plaintiff's motor vehicle without her consent. Lake Chase Condominium Association, Inc. is a not for profit Florida corporation engaged in the Apartment Building Operators business. [BN] The Plaintiff is represented by: Felipe B. Fulgencio, Esq. Megan N. Daniel, Esq. Courtney A. Umberger, Esq. FULGENCIO LAW, PLLC 105 S. Edison Avenue Tampa, FL 33606 Telephone: (813) 463-0123 Facsimile: (813) 670-1288 E-mail: Felipe@FulgencioLaw.com MDaniel@FulgencioLaw.com CU@FulgencioLaw.com LANGSTON COMPANIES: Bonds Sues to Recover Unpaid Overtime Wages --------------------------------------------------------------- Jaylin Bonds, individually and on behalf of all others similarly situated, v. Langston Companies, Inc., Defendant, Case No. 18-cv-00189, (W.D. Ark., October 5, 2018) seeks monetary damages, liquidated damages, prejudgment interest, costs, including reasonable attorneys' fees as a result of failure to pay lawful overtime compensation for hours worked in excess of forty hours per week under the Fair Labor Standards Act and the Arkansas Minimum Wage Act. Langston is a supplier of various types of bags and other packing-related products and services, including multiwall paper sacks, cotton bale packaging, flexible intermediate bulk containers and small woven polypropylene bags with six manufacturing facilities worldwide. Bonds worked as factory worker at their manufacturing facility in West Memphis. He claims to have regularly worked in excess of forty hours per week without overtime pay. [BN] Plaintiff is represented by: Daniel Ford, Esq. Josh Sanford, Esq. Chris Burks, Esq. SANFORD LAW FIRM, PLLC One Financial Center 650 S. Shackleford Road, Suite 411 Little Rock, AR 72211 Telephone: (501) 221-0088 Facsimile: (888) 787-2040 Email: josh@sanfordlawfirm.com chris@sanfordlawfirm.com daniel@sanfordlawfirm.com LEGACY TREATMENT: Chudzinski Files Suit Over Retaliatory Discharge ------------------------------------------------------------------ KYLE CHUDZINSKI v. LEGACY TREATMENT SERVICES, INC. and JOHN DOES 1-5 AND 6-10, Case No. CAM-L-003925-18 (N.J. Super., Camden Cty., October 16, 2018), is brought to ask the Court to order the Defendants to cease and desist unlawful conduct, including retaliatory discharge, both as to the Plaintiff and as to all other individuals similarly situated. The matter is opened to the Court under the New Jersey Conscientious Employee Protection Act alleging unlawful retaliatory discharge. The Plaintiff alleges that the Defendants terminated his employment because he pressed charges against their client, via a private criminal complaint, in connection with an incident wherein the client pushed him and punched him in the face. Legacy Treatment Services, Inc., is a New Jersey business with an address at 119 Creek Road, in Lumberton, New Jersey. The Doe Defendants are currently unidentified. The Plaintiff was employed by the Defendants as a residential counselor, whose job duties included caring for disabled and at-risk residents.[BN] The Plaintiff is represented by: Kevin M. Costello, Esq. COSTELLO & MAINS, LLC 18000 Horizon Way, Suite 800 Mount Laurel, NJ 08054 Telephone: (856) 727-9700 E-mail: kcostello@costellomains.com LIBERTY MUTUAL: Amended Childress TCPA Suit Dismissed w/ Prejudice ------------------------------------------------------------------ In the case, SID CHILDRESS, on behalf of herself and others similarly situated, Plaintiff, v. LIBERTY MUTUAL INSURANCE COMPANY, Defendant, Case No. 17-CV-1051 MV/KBM (D. N.M.), Judge Martha Vazquez of the U.S. District Court for the District of New Mexico granted the Defendant's Motion to Dismiss Plaintiff's Amended Complaint with Prejudice. On Aug. 14, 2017, at approximately 10:22 a.m. (MT), Childress received a telephone call on his cellular phone, which is listed on the national do-not-call registry. According to Plaintiff's caller identification, the telephone call came from telephone number 505-780-9813. When Plaintiff answered the call, he was greeted by a machine that played a pre-recorded message. The message indicated that the caller was "Jason" from "Cheap Insurance Experts." After listening to the prerecorded message and answering questions, the Plaintiff was transferred to a live person telemarketer employed by the Defendant who identified himself as "Steve Ross" and indicated that he was located at a call center in Dallas, Texas. The Plaintiff began asking "Steve Ross" questions related to his interest in why he was being robo-called and who the telemarketer was. "Steve Ross" then hung up the phone on him. An hour later, the Plaintiff filed in state court his pro se Complaint for Violations of the Telephone Consumer Protection Act ("TCPA"), the Unfair Practices Act and Torts against the Defendant. He amended the complaint once as a matter of right on Sept. 13, 2017, to correctly name the Defendant and to add conduct by "lead generators" for his claim of vicarious liability. The Defendant removed the case to the Court on Oct. 19, 2017. On Nov. 20, 2017, the Defendant filed the instant motion to dismiss the Plaintiff's Amended Complaint in its entirety. Thereafter, the Plaintiff retained the counsel, who entered an appearance on Dec. 7, 2017. On Dec. 8, 2017, the Plaintiff filed both a response in opposition to the Defendant's motion, and a motion for leave to file a second amended complaint. The Court referred the Plaintiff's motion for leave to amend to Magistrate Judge Karen B. Molzen. On May 1, 2018, Judge Molzen entered her Proposed Findings and Recommended Disposition ("PFRD"). In the PFRD, she found that the Plaintiff's untimely proposed Second Amended Complaint represents the type of 'moving target' that would introduce undue delay. The Magistrate noted that Plaintiff clearly knew all of the information on which the proposed changes were based. Further, the Magistrate found that the Defendant has already expended considerable fees and cost in pursuing its motion to dismiss, and that the proposed expansion of the lawsuit from a single, offending phone call to potential nationwide class action, would require even greater resources to bring the case to a conclusion. No objections were filed to the PFRD, and on June 4, the Court entered an Order adopting the PFRD. Thereafter, Defendant filed its reply in further support of its motion to dismiss. Judge Vaquez finds that in the Amended Complaint, there are no factual allegations that the Defendant actually made the telephone call at issue. The mere conclusion that the "robot machine" responsible for the call belonged to the Defendant, without any factual allegations to support that conclusion, does not constitute a factual allegation that, if proven, would establish that the Defendant "made," or "physically placed" the call to the Plaintiff's cell phone. Accordingly, the Amended Complaint is insufficient to state a claim that is plausible on its face under Section 227(b)(1)(A)(iii). In addition, the Judge finds that the Plaintiff's arguments to the contrary are unavailing. Their statements are not factual allegations but rather legal conclusions that merely recite the elements required to show an agency relationship. The case law is clear that such threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice to state a claim. She concludes that absent from the Amended Complaint is any factual content regarding the relationship between the initial caller and the Defendant. Mere conclusory allegations that the "robot machine" belonged to the Defendant, coupled with allegations that the initial call was transferred to the Defendant's in-house telemarketer, are insufficient to establish that it had the right to control the initiation of the telephone call to the Plaintiff. Accordingly, the Plaintiff's allegations fail to plead any relationship, let alone an agency relationship, between the Defendant and any other individual or entity sufficient to allege vicarious liability under Section 227(b)(1)(A)(iii). The Plaintiff has consented to dismissal of all of his claims save those under the TCPA. As set forth, the Plaintiff has failed to state a claim of direct or vicarious liability under the TCPA. Accordingly, the Plaintiff's Amended Complaint is subject to dismissal in its entirety. Judge Vazquez granted the Defendant's Motion to Dismiss Plaintiff's Amended Complaint with Prejudice, and the Plaintiff's claims are dismissed with prejudice. A full-text copy of the Court's Sept. 28, 2018 Memorandum Opinion and Order is available at https://is.gd/RNhJ7p from Leagle.com. Sid Childress, Plaintiff, represented by Clayton Ewing Crowley -- info@crowleygribble.com -- Crowley & Gribble PC & Anthony Paronich -- anthony@broderick-law.com -- Broderick & Paronich, PC. Liberty Mutual Insurance Company, Defendant, represented by Meena H. Allen , Allen Law Firm, LLC, Brian J. Spano -- bspano@lrrc.com -- Lewis Roca Rothgerber LLP, pro hac vice & Jessica L. Fuller -- jfuller@lrrc.com -- Lewis Roca Rothgerber LLP, pro hac vice. LYFT INC: Accused by Ganji of Illegally Sending Unsolicited Texts ----------------------------------------------------------------- A. Ganji, an individual and on behalf of all others similarly situated v. Lyft, Inc., Case No. 4:18-cv-06321-KAW (N.D. Cal., October 16, 2018), arises from the Defendant's alleged illegal actions in negligently, knowingly or willfully transmitting unsolicited, autodialed SMS or MMS text messages, en masse, to the Plaintiff's cellular device and the cellular devices of numerous other individuals across the county, in violation of the Telephone Consumer Protection Act. Headquartered in San Francisco, California, Lyft, Inc., is a transportation company that provides rides to its customers throughout the United States via a mobile application.[BN] The Plaintiff is represented by: Marcelo Di Mauro, Esq. LAW OFFICE OF MARCELO DI MAURO 2719 Wilshire Blvd., Suite 200 Santa Monica, CA 90403 Telephone: (310) 876-2723 E-mail: marcelodimaurolaw@gmail.com MAC COSMETICS: Johnson Seeks Overtime Pay for Hrs. Worked Over 40 ----------------------------------------------------------------- Stanley Johnson, individually, and on behalf of all others similarly-situated, Plaintiff, v. MAC Cosmetics, Inc. and The Estee Lauder Companies, Inc., Defendants, Case No. 18-cv-09157, (S.D. N.Y., October 5, 2018), seeks monetary damages, liquidated damages, prejudgment interest, costs, including reasonable attorneys' fees as a result of failure to pay lawful overtime compensation for hours worked in excess of forty hours per week under the Fair Labor Standards Act and the Wage Theft Prevention Act of the New York Labor Code. MAC, an Estee Lauder subsidiary, is a cosmetics manufacturer and retailer. Johnson worked as a manager in MAC's retail location in Queens Center Mall in Elmhurst, New York and Roosevelt Field Mall in East Garden City. She frequently logged over 40 hours in a week but was not paid overtime, says the complaint. [BN] Plaintiff is represented by: Salvatore C. Badala, Esq. Paul J. Napoli, Esq. NAPOLI SHKOLNIK PLLC 360 Lexington Avenue, Eleventh Floor New York, NY, 10017 Tel: (212) 397-1000 Email: sbadala@napolilaw.com pnapoli@napolilaw.com MARRIOTT INT'L: Alward Suit Seeks Overtime Pay for Pre-shift Work ----------------------------------------------------------------- Marni Alward, on behalf of herself and similarly situated employees, Plaintiff, v. Marriott International, Inc., Defendant, Case No. 18-cv-02337, (N.D. Ohio, October 8, 2018), seeks to recover overtime wages, unpaid minimum wages, liquidated damages and attorneys' fees and costs pursuant to the Fair Labor Standards Act of 1938, Ohio Minimum Fair Wage Standards Act and the Ohio Prompt Pay Act. Defendant is a global lodging company with more than 6,700 properties across 130 countries and territories, operating a Global Reservation Sales and Customer Care Center in Solon, OH. Alward was employed by Defendant at the Solon Call Center as an operator from approximately May 2017 until approximately July 2018. Prior to the beginning of each paid shift and prior to the end of each unpaid meal break, Plaintiffs must arrive at their assigned work station, boot-up their assigned computers, and access computer systems, databases and programs. It generally takes 10-15 minutes to complete but they were not compensated for time spent performing Start-Up Activities, asserts the complaint. [BN] Plaintiff is represented by: Peter Winebrake, Esq. WINEBRAKE & SANTILLO, LLC 715 Twining Road, Suite 211 Dresher, PA 19025 Phone: (215) 884-2491 Facsimile: (215) 884-2492 Email: pwinebrake@winebrakelaw.com MDL 2741: Russ Suit v. Monsanto over Roundup Consolidated --------------------------------------------------------- The class action lawsuit titled GAYLE RUSS, the Plaintiffs, v. MONSANTO COMPANY, Defendant, Case No. 4:18-cv-01473, was transferred from the U.S. District Court for the Eastern District of Missouri, to the U.S. District Court for the Northern District of California (San Francisco) on Oct. 24, 2018. The Northern District of California Court Clerk assigned Case No. 3:18-cv-06488-VC to the proceeding. This is an action for damages suffered by Plaintiffs as a direct and proximate result of Defendant negligent and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, advertising, distribution, labeling, and/or sale of the herbicide Roundup (TM), containing the active ingredient glyphosate. The Russ case is being consolidated with MDL 2741 in re: Roundup Products Liability Litigation. The MDL was created by Order of the United States Judicial Panel on Multidistrict Litigation on October 3, 2016. These actions share common factual questions arising out of allegations that Monsanto's Roundup herbicide, particularly its active ingredient, glyphosate, causes non-Hodgkin's lymphoma. Plaintiffs each allege that they or their decedents developed non-Hodgkin's lymphoma after using Roundup over the course of several or more years. Plaintiffs also allege that the use of glyphosate in conjunction with other ingredients, in particular the surfactant polyethoxylated tallow amine (POEA), renders Roundup even more toxic than glyphosate on its own. Issues concerning general causation, the background science, and regulatory history will be common to all actions. In its October 3, 2016 Order, the MDL Panel found that the actions in this MDL involve common questions of fact, and that centralization in the Northern District of California will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation. Centralization will eliminate duplicative discovery; prevent inconsistent pretrial rulings (including with respect to discovery, privilege, and Daubert motion practice); and conserve the resources of the parties, their counsel, and the judiciary. Presiding Judge in the MDL is Hon. Judge Vince Chhabria. The lead case is 3:16-md-02741-VC.[BN] Attorneys for Plaintiff: Eric D. HollandD, Esq. HOLLAND LAW FIRM 300 North Tucker, Suite 801 St. Louis, MO 63101 Telephone: 314 241-8111 Facsimile: 314 241-5554 E-mail: eholland@allfela.com - and - Jessica L. Richman, Esq. PARKER WAICHMAN LLP 6 Harbor Park Drive Port Washington, NY 11050 Telephone: (516) 723-4627 Facsimile: (516) 723-4727 E-mail: jrichman@yourlawyer.com MONSANTO COMPANY: Johnson Suit Moved to N.D. California ------------------------------------------------------- The class action lawsuit titled DEAN C. JOHNSON, individually and on behalf of all others similarly situated, Plaintiff v. MONSANTO COMPANY, Case No. 4:18-cv-01450, was removed from the U.S. District Court for the Eastern District of Missouri, to the U.S. District Court for the Northern District of California on October 2, 2018. The District Court Clerk assigned Case No. 3:18-cv-06025 (N.D. Cal., Oct. 2, 2018) to the proceeding. The Case is assigned to the Hon. Vince Chhabria. Monsanto Company, together with its subsidiaries, provides agricultural products for farmers worldwide. The company was formerly known as Monsanto Ag Company and changed its name to Monsanto Company in March 2000. Monsanto Company was founded in 2000 and is based in St. Louis, Missouri. As of June 7, 2018, Monsanto Company operates as a subsidiary of Bayer Aktiengesellschaft. [BN] The Plaintiff is represented by: Seth S. Webb, Esq. BROWN & CROUPPEN, P.C. 211 North Broadway, Suite 1600 St. Louis, MO 63102 Telephone: (314) 222-2222 Facsimile: (314) 421-0359 E-mail: sethw@getbc.com MONSANTO COMPANY: Miller et al. Suit Moved to N.D. California ------------------------------------------------------------- The class action lawsuit titled FAYE MILLER, and CARL MERRIETT, individually and on behalf of all others similarly situated, Plaintiffs v. MONSANTO COMPANY, Defendant, Case No. 4:18-cv-01454, was removed from the U.S. District Court for the Eastern District of Missouri, to the U.S. District Court for the Northern District of California on October 11, 2018. The District Court Clerk assigned Case No. 3:18-cv-06219 (N.D. Cal., Oct. 11, 2018) to the proceeding. The Case is assigned to the Hon. Vince Chhabria. Monsanto Company, together with its subsidiaries, provides agricultural products for farmers worldwide. The company was formerly known as Monsanto Ag Company and changed its name to Monsanto Company in March 2000. Monsanto Company was founded in 2000 and is based in St. Louis, Missouri. As of June 7, 2018, Monsanto Company operates as a subsidiary of Bayer Aktiengesellschaft. [BN] The Plaintiffs are represented by: Seth S. Webb, Esq. BROWN & CROUPPEN, P.C. 211 North Broadway, Suite 1600 St. Louis, MO 63102 Telephone: (314) 222-2222 Facsimile: (314) 421-0359 E-mail: sethw@getbc.com MORGENTHAL-FREDERICS: Nixon Asserts ADA Class Action in NY ---------------------------------------------------------- A class action lawsuit has been filed against Morgenthal-Frederics Optical Stores, Inc. The case is styled as Donald Nixon on behalf of himself and all others similarly situated, Plaintiff v. Morgenthal-Frederics Optical Stores, Inc., Defendant, Case No. 1:18-cv-06066 (E.D. N.Y., Oct. 30, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. Morgenthal Frederics specializes in creating luxurious optical frames by handcrafting them using the finest materials. Utilizing buffalo horn, acetate and titanium, these frames bring together comfort and aesthetics to produce a first-class optical experience for those who wear them.[BN] The Plaintiff is represented by: Jonathan Shalom, Esq. Shalom Law, PLLC 124-04 Metropolitan Avenue Kew Gardens, NY 11374 Phone: (516) 807-1748 Email: jonathan.shalom25@gmail.com MOTOR VEHICLE: Court Narrows Claims in Heaton TCPA Suit ------------------------------------------------------- Judge Timothy S. Hillman of the U.S. District Court for the District of Massachusetts granted in part and denied in part the Defendants' motions to dismiss the case, JOHN HEATON and CHRISTOPHER HORIGAN, on behalf of themselves and others similarly situated, Plaintiffs, v. MOTOR VEHICLE ASSURANCE, NATIONAL AUTO PROTECTION CORP. and SUNPATH LTD., Defendants, Civil Action No. 17-40169-TSH (D. Mass.). Heaton and Horigan have filed suit against Motor Vehicle Assurance, National Auto Protection Corp. ("NAPC") and Sunpath LTD to enforce the consumer-privacy provisions of the Telephone Consumer Protection Act ("TCPA"). More specifically, the Plaintiffs allege that the Defendants made unsolicited telephone calls to their cellular phones and/or landlines. They also allege a claim against the Defendants under the Massachusetts Consumer Protection Act ("Chapter 93A"). Sunpath is a company that offers extended warranties on automobiles. To generate new clients, Sunpath relies on telemarketing. However, Sunpath's contact with the potential new customers is limited, and the telemarketing is conducted by third parties. One of Sunpath's strategies for telemarketing involve hiring third parties that make use of an automatic telephone dialing system ("ATDS") to solicit potential customers through the use of a predictive dialer. NAPC provides marketing services for Sunpath. In making calls, NAPC utilizes leads generated from sources with whom it has contracted and who provide marketing-like banner advertisements and informational landing pages on websites. On April 27, 2017, a Colleen Korniotes visited a website entitled "wehaveautoloans.com." and consented in writing to receive telephone calls from ATDS to a wireless telephone number associated with Horigan. The person who visited the site checked the appropriate boxes indicating that s/he consented to receive telephone calls, including ATDS calls. The website permits consumers to supply information, including their telephone number(s), addresse(s) and email addresse(s), but it will not accept this information unless the consumer checks the two boxes on the website by which the consumer gives his or her permission to be, among other things, contacted on their wireless telephones through telephone calls generated by automated telephone dialing systems. NAPC placed a pre-recorded telemarketing call to Heaton on July 7, 2017 to cellular telephone number (508) XXX-4142. When the call was answered, there was a lengthy pause and a click followed by silence before a pre-recorded message came on the line. Horigan believes that the call was made using an ATDS. When Horigan sought to identify the company that was calling him, he was told the company was "www.sunpath.com." During the conversation, Horigan identified himself as "Christopher Miller" and had and extensive conversation with the caller (and other persons who he was transferred to speak to) regarding his vehicle. Horigan avers that he did not go on the "wehaveautoloans.com" on April 27, 2017, and that the computer IP address associated with the computer that went on the site that day is not the IP address of his home computer. The Plaintiffs alleged they were temporarily deprived of legitimate use of their phones because the phone line was tied up, they were charged for the calls and their privacy was improperly invaded. Moreover, these calls injured them because they were frustrating, obnoxious, annoying, were a nuisance and disturbed their solitude. Sunpath and NAPC have each filed motions to dismiss the Complaint pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6), on the grounds that (1) Horrigan lacks standing to assert a claim under the TCPA, and therefore, this Court lacks subject matter jurisdiction over his claim, and (2) both Defendants fail to state a claim upon which relief can be granted pursuant to Chapter 93A. Judge Hillman granted in part and denied in part the Defendants' motions to dismiss. He granted NAPC's Motion For An Order Dismissing The Complaint Pursuant To Federal Rule Of Civil Procedure 12(B)(1) as to the Plaintiffs' claim brought pursuant to Mass.Gen.L. ch. 93A and, is otherwise, denied. He also granted Sunpath'S Motion To Dismiss Complaint as to the Plaintiffs' claim brought pursuant to Mass.Gen.L. ch. 93A and, is otherwise, denied. The Judge finds that Horigan has filed a sworn affidavit saying that he did not visit the website, wehaveautoloans.com, as alleged by the Defendants. On this record, the he cannot find that the Plaintiff consented to receiving calls from Sunpath and its agents, including NAPC. Therefore, the Defendants motion to dismiss for lack of subject matter jurisdiction is denied. Likewise, the Judge does not find that, as a matter of law, the Plaintiffs' allegations of a single call made to their cellular telephones, which tied up their phone lines for a brief period and were frustrating, obnoxious, annoying, were a nuisance and disturbed their] solitude, establish that the Defendants engaged in any unfair or deceptive acts or practices. Therefore, the Defendants' motions to dismiss the Plaintiffs' Chapter 93A claims is granted. A full-text copy of the Court's Sept. 28, 2018 Order and Memorandum of Decision is available at https://is.gd/Fhcf3M from Leagle.com. John Heaton, on behalf of themselves and others similarly situtated & Christopher Horigan, on behalf of themselves and others similarly situtated, Plaintiffs, represented by Anthony I. Paronich -- anthony@broderick-law.com -- Broderick & Paronich, P.C. Motor Vehicle Assurance, Defendant, represented by Lawrence M. Kraus -- lkraus@foley.com -- Foley & Lardner LLP, Matthew N. Fiorovanti -- mfiorovanti@ghclaw.com -- Giordano, Halleran & Ciesla, P.C., pro hac vice, Steven W. Ward -- sward@ghclaw.com -- Giordano, Halleran & Ciesla, P.C., pro hac vice & Olivia B. Luckett -- oluckett@foley.com -- Foley & Lardner LLP. Sunpath, Ltd., Defendant, represented by Beth-Ann E. Krimsky -- beth-ann.krimsky@gmlaw.com -- Greenspoon Marder, LLP, pro hac vice, Lawren A. Zann -- lawren.zann@gmlaw.com -- Greenspoon Marder, P.A., pro hac vice & Stephen D. Riden -- sriden@beckreed.com -- Beck Reed Riden LLP. National Auto Protection Corp, Defendant, represented by Gino A. Zonghetti -- gzonghetti@kdvlaw.com -- Kenny, Stearns, & Zonghetti. NATHAN'S FAMOUS: Figueroa Sues Over Blind-Inaccessible Web Site --------------------------------------------------------------- JOSE FIGUEROA, on behalf of himself and all others similarly situated v. NATHAN'S FAMOUS INC., Case No. 1:18-cv-09425-DAB (S.D.N.Y., October 15, 2018), accuses the Defendant of failure to design, construct, maintain, and operate its Web site -- http://www.nathansfamous.com/-- to be fully accessible to and independently usable by the Plaintiff and other blind or visually-impaired people. Nathan's Famous Inc. is a Delaware Corporation doing business in New York. The Defendant is a restaurant chain that operates Nathan's Famous restaurants, as well as the Nathan's Famous Web site offering features, which should allow all consumers to access the goods and services, which the Defendant offers in connection with their physical locations.[BN] The Plaintiff is represented by: Joseph H. Mizrahi, Esq. COHEN & MIZRAHI LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Telephone: (929) 575-4175 Facsimile: (929) 575-4195 E-mail: Joseph@cml.legal - and - Jeffrey M. Gottlieb, Esq. Dana L. Gottlieb, Esq. GOTTLIEB & ASSOCIATES 150 East 18th Street, Suite PHR New York, NY 10003-2461 Telephone: (212) 228-9795 E-mail: nyjg@aol.com danalgottlieb@aol.com NATIONAL DELIVERY: Sanchez-Lopez Suit Moved to E.D. North Carolina ------------------------------------------------------------------ Jose Sanchez-Lopez, on behalf of himself and all other similarly situated, the Plaintiff, vs. National Delivery Systems, Inc., Santi Multiservices, Inc., Santi Staffing Solution, Inc., and Human Link Staffing, LLC, the Defendants, Case No. 3:18- cv-00502, was transferred from the U.S. District Court for the Western District of North Carolina, to the U.S. District Court for the Eastern District of North Carolina on Oct. 24, 2018. The Eastern District of North Carolina Court Clerk assigned Case No. 5:18-cv-00502-FL to the proceeding. The case is assigned to the Hon. Judge Louise Wood Flanagan. The suit alleges Fair Labor Standards Act violation.[BN] Attorneys for Plaintiff: Andrew J. Henson, Esq. Michael A. Kornbluth, Esq. TAIBI KORNBLUTH LAW GROUP, P.A. 3100 Tower Boulevard, Suite 800 Durham, NC 27707 Telephone: (919) 401-4100 E-mail: ahenson@TKLawNC.com mak@tklawnc.com Attorneys for National Delivery Systems, Inc.: Jerry Howard Walters , Jr., Esq. LITTLER MENDELSON, P.C. 100 North Tryon Street, Suite 4150 Charlotte, NC 28202 Telephone: (704) 972-7013 Facsimile: (704) 333-4005 NATIONAL RESTORATIONS: Workers' Suit Seeks to Recover Overtime Pay ------------------------------------------------------------------- Marco Contreras, Francisco Rico and Manuel Ortiz, individually and on behalf of others similarly situated, Plaintiffs, v. National Restorations, Inc., Design Installation Systems, Inc. and Michael Tracy, Defendant, Case No. 18-cv-06761, (N.D. Ill., October 5, 2018), seeks to recover unpaid wages, liquidated damages, state law statutory penalties, prejudgment and post-judgment interest and attorney's fees and costs under the Fair Labor Standards Act and the Illinois Minimum Wage Law. National Restorations is an Illinois contractor engaged in masonry restoration, repair and landscaping and snow removal. Defendants employed Plaintiffs as non-exempt laborers but failed to pay them premium overtime wages for hours worked in excess of 40 in a workweek, asserts the complaint. [BN] The Plaintiff is represented by: Matthew J. Piers, Esq. Christopher J. Wilmes, Esq. HUGHES, SOCOL, PIERS, RESNICK &DYM, LTD. 70 W. Madison St., Suite 4000 Chicago, IL 60602 Tel: (312) 580-0100 Email: mpiers@hsplegal.com cwilmes@hsplegal.com - and - Alexandria Santistevan, Esq. FARMWORKER & LANDSCAPER ADVOCACY PROJECT 33 N. LaSalle, Suite 900 Chicago, IL 60602 Tel: (312) 784-3541 Email: litigation@flapillinois.org NAVIENT CORP: Kahn Swick Probes Securities Laws Violations ---------------------------------------------------------- Former Attorney General of Louisiana, Charles C. Foti, Jr., Esq., a partner at the law firm of Kahn Swick & Foti, LLC ("KSF"), disclosed that KSF has commenced an investigation into Navient Corporation (NasdaqGS: NAVI). Throughout 2017 and 2018, the Company was named as a defendant in several civil lawsuits filed by the U.S. Consumer Financial Protection Bureau and Attorneys General from Illinois, Pennsylvania, Washington, California and Mississippi for violations of state and federal consumer protection laws, based on allegations of widespread acts of misconduct detrimental to borrowers of the loans it services. On October 16, 2017, the Company was sued in a securities class action lawsuit for failing to disclose material information, violating federal securities laws, which is ongoing. Recently, on October 3, 2018, the Company was sued in federal court in a consumer class action lawsuit for misleading borrowers regarding the terms and options for their loans in violation of numerous state and federal laws. The actions of the Company's executives have exposed it to the expense of defending the Company against numerous investigations and lawsuits by public officials, consumers and shareholders as well as the potential penalties, fines and other financial losses that could result from them. KSF's investigation is focusing on whether Navient's officers and/or directors breached their fiduciary duties to Navient's shareholders or otherwise violated state or federal laws. If you have information that would assist KSF in its investigation, or have been a long-term holder of Navient shares and would like to discuss your legal rights, you may, without obligation or cost to you, call toll-free at 1-877-515-1850 or email KSF Managing Partner Lewis Kahn ( lewis.kahn@ksfcounsel.com ), or visit https://www.ksfcounsel.com/cases/nasdaqgs-navi/ to learn more. View source version on businesswire.com:https://www.businesswire.com/news/home/20181012005030/en/ Lewis Kahn, Esq. Kahn Swick & Foti, LLC Managing Partner Telephone: 1-877-515-1850 Email: lewis.kahn@ksfcounsel.com [GN] NAVIGATORS GROUP: Kent Files Securities Class Action ---------------------------------------------------- MICHAEL KENT, Individually and On Behalf of All Others Similarly Situated v. THE NAVIGATORS GROUP, INC., SAUL L. BASCH, TERENCE N. DEEKS, STANLEY A. GALANSKI, MERYL D. HARTZBAND, GEOFFREY E. JOHNSON, ROBERT V. MENDELSOHN, DAVID M. PLATTER, PATRICIA H. ROBERTS, JANICE C. TOMLINSON, and MARC M. TRACT, Case No. 1:18-cv-01580-UNA (D. Del., October 15, 2018), stems from a proposed transaction pursuant to which the Company will be acquired by The Hartford Financial Services Group, Inc. and Renato Acquisition Co. On August 22, 2018, Navigators' Board of Directors caused the Company to enter into an agreement and plan of merger with Hartford. Pursuant to the terms of the Merger Agreement, if the Proposed Transaction is approved by Navigators' shareholders and completed, Navigators' stockholders will receive $70 in cash for each share of the Navigators common stock they hold. On October 12, 2018, defendants filed a proxy statement with the United States Securities and Exchange Commission in connection with the Proposed Transaction. The Plaintiff alleges that the Proxy Statement, which scheduled a stockholder vote on the Proposed Transaction for November 16, 2018, omits material information with respect to the Proposed Transaction, which renders the Proxy Statement false and misleading and in violation of the Securities Exchange Act of 1934. Navigators Group is a Delaware corporation and maintains its principal executive offices located in Stamford, Connecticut. The Individual Defendants are directors and officers of the Company. Navigators is a global specialty insurance holding company. The Company provides customized insurance solutions designed to protect clients from complex risks. The Company serves these industries: maritime, construction, energy, environmental, professional services, and life sciences.[BN] The Plaintiff is represented by: Brian D. Long, Esq. Gina M. Serra, Esq. RIGRODSKY & LONG, P.A. 300 Delaware Avenue, Suite 1220 Wilmington, DE 19801 Telephone: (302) 295-5310 Facsimile: (302) 654-7530 E-mail: bdl@rl-legal.com gms@rl-legal.com - and - Richard A. Maniskas, Esq. RM LAW, P.C. 1055 Westlakes Drive, Suite 300 Berwyn, PA 19312 Telephone: (484) 324-6800 Facsimile: (484) 631-1305 E-mail: rm@maniskas.com NEILSON FINANCIAL: Layoff Notice Untimely, Merriweather Suit Says ----------------------------------------------------------------- TANISHA MERRIWEATHER, individually and on behalf of all others similarly situated, Plaintiff v. NEILSON FINANCIAL SERVICES LLC; NFS INSURANCE AGENCY LLC; and DOES 1 through 10, Defendants, Case No. 18STCV00421 (Cal. Super., Los Angeles Cty., Oct. 11, 2018) is an action against the Defendants for failure to provide the required 60 days advance notice of layoffs in violation of the Worker Adjustment and Retraining Notification Act. Neilson Financial Services LLC is engaged in providing insurance agent and broker services for a range of insurance types. [BN] The Plaintiff is represented by: Steven M. Tindall, Esq. Aaron Blumenthal, Esq. GIBBS LAW GROUP LLP 505 14th Street, Suite 1110 Oakland, CA 94612 Telephone: (510) 350-9700 Facsimile: (510) 350-9701 E-mail: smt@classlawgroup. com ab@classlawgroup.com OMNI SPECIAL: Denied Meal Breaks and Overtime Pay, Garcia Suit Says ------------------------------------------------------------------- Marbella Gonzalez Garcia and Melanie Karczewski, Individually and on behalf of other employees similarly situated, Plaintiff v. Omni Special Services, LLP, Syntecos and Guido Costantini, Defendants, Case No. 18-cv-03644, (S.D. Tex., October 5, 2018), seeks to recover unpaid overtime wages, declaratory relief, back pay and liquidated damages, attorney's fees and taxable costs of court pursuant to the Fair Labor Standards Act. Omni Special Services operates as Metro Clean, a cleaning company based out of Houston TX and is a subsidiary of Syntecos. Defendants automatically deducted lunch breaks for all office workers and custodians even if they did not avail them, notes the complaint. Defendants would allegedly edit the time sheets to reduce hours worked and any overtime, it adds. [BN] Plaintiff is represented by: Trang Q. Tran, Esq. Scott Stambush, Esq. TRAN LAW FIRM 2537 South Gessner Road, Suite 104 Houston, TX 77063 Tel: (713) 223–8855 Fax: (713) 623–6399 Email: ttran@tranlawllp.com service@tranlawllp.com Stambush@tranlf.com OPKO HEALTH: Camhi Hits Share Price Drop Over Pump-and-Dump Scheme ------------------------------------------------------------------ Paul Camhi, individually and on behalf of all others similarly situated, Plaintiff, v. OPKO Health, Inc. and Phillip Frost, Defendants, Case No. 18-cv-24137 (S.D. Fla., October 8, 2018), seeks to recover compensable damages caused by violations of the federal securities laws and to pursue remedies under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. OPKO, a healthcare company, engages in the diagnostics and pharmaceuticals business in the United States and internationally. Phillip Frost has been its Chief Executive Officer and Chairman since March 2007. The complaint says the Defendants failed to disclose that Frost and OPKO were involved in orchestrating the acquisition of large quantities of stock at steep discounts and after securing a substantial ownership interest in them, engaged in illegal promotional activity and manipulative trading to artificially boost its stock price and to give the stock the appearance of active trading volume and eventually dump their shares into the inflated market, reaping millions of dollars at the expense of unsuspecting investors. On this news, shares of OPKO fell $1.01 or over 18%, before NASDAQ halted the trading of OPKO on September 7, 2018 at $4.58. To date, trading in OPKO remains halted, making the stock illiquid and virtually worthless. [BN] Plaintiff is represented by: Jack Reise, Esq. Robert J. Robbins, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 120 East Palmetto Park Road, Suite 500 Boca Raton, FL 33432 Telephone: (561) 750-3000 Fax: (561) 750-3364 Email: jreise@rgrdlaw.com - and - Samuel H. Rudman, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 58 South Service Road, Suite 200 Melville, NY 11747 Telephone: (631) 367-7100 Fax: (631) 367-1173 Email: SRudman@rgrdlaw.com - and - Brian E. Cochran, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 655 West Broadway, Suite 1900 San Diego, CA 92101-8498 Tel: (619) 231-1058 Fax: (619) 231-7423 Email: bcochran@rgrdlaw.com - and - Jeffrey K. Brown, Esq. LEEDS BROWN LAW, P.C. One Old Country Road, Suite 347 Carle Place, NY 11514 Telephone: (516) 873-9550 Fax: (516) 747-5024 P&E IRON: Fails to Pay Overtime Wages, Zavalla Says --------------------------------------------------- PEDRO ZAVALLA, individually and on behalf of all others similarly situated , the Plaintiff, vs. P&E IRON WORK CORPORATION and YUWANA HUAMAN, as an individual, the Defendant, Case 7:18-cv-09777 (S.D.N.Y., Oct, 24, 2018), seeks compensatory damages and liquidated damages in an amount exceeding $100,000 under the New York Labor Law and the Fair Labor Standards Act. According to the complaint, Mr. Zavalla was employed by Defendants at P&E Iron Work Corp., as iron worker and installer from June 2015 to March 2018. Zavalla worked about 72 hours or more per week during his employment. However, Defendant did not pay him 1.5 times for hours worked over 40 hours, a blatant violation of the overtime provisions contained in the FLSA and NYLL, the lawsuit says.[BN] Attorneys for Plaintiff: Roman Avshalumov, Esq. HELEN F. DALTON & ASSOCIATES, P.C. 69-12 Austin Street Forest Hill, NY 11375 Telephone: (718) 263 9591 PATIENT INNOVATION: Tomala's Bid to Certify Class Shelved --------------------------------------------------------- In the class action lawsuit captioned as Boguslawa Tomala, the Plaintiff, vs. Patient Innovation Center, NFP, et al., the Defendant, Case: 1:17-cv-08530 (N.D. Ill.), the Hon. Judge Joan H. Lefkow entered an order on Oct. 17, 2018 holding Plaintiff's motion to certify class in abeyance. According to the docket entry made by the Clerk on October 17, Plaintiff's motion to strike affirmative defenses is granted. Defendants' motion for judgment on the pleadings is denied. Defendants' motion to stay is denied as moot. Defendants must produce documents responsive to the applicability of the Fair Labor Standards Act and the McNamara−O'Hara Service Contract Act by Oct. 30, 2018. Status hearing and hearing on motion to compel were continued to Oct. 31.[CC] PENN NATIONAL: Sued by Jessop in M.D. Florida for Violating FCRA ---------------------------------------------------------------- MAT JESSOP, individually, and on behalf of others similarly situated v. PENN NATIONAL GAMING, INC., a Pennsylvania corporation, Case No. 6:18-cv-01741 (M.D. Fla., October 15, 2018), arises from the Defendant's alleged violation of the Fair and Accurate Credit Transactions Act amendment to the Fair Credit Reporting Act, which requires Penn National to truncate certain credit card and debit card information on printed receipts provided to consumers. Despite the clear language of the statute, Penn National willfully, knowingly, or with reckless disregard, failed to comply with FCRA but printed eight of the credit card or debit card numbers on printed receipts provided to consumers, the Plaintiff alleges. As a result of Penn National's unlawful conduct, the Plaintiff and the Class, who have conducted business with the Defendant, have suffered a violation of their statutory rights, an invasion of their privacy and have been burdened with an elevated risk of identity theft, according to the complaint. Penn National is a Pennsylvania corporation whose principal address is located in Wyomissing, Pennsylvania. Penn National owns, operates or has ownership interests in gaming and racing facilities and video gaming terminal operations with a focus on slot machine entertainment. Penn National conducts business in the state of Florida as the principal owner and operator of Sanford Orlando Kennel Club, located in Longwood, Florida.[BN] The Plaintiff is represented by: Scott D. Owens, Esq. SCOTT D. OWENS, P.A. 3800 S. Ocean Dr., Suite 235 Hollywood, FL 33019 Telephone: (954) 589-0588 Facsimile: (954) 337-0666 E-mail: scott@scottdowens.com - and - Kira M. Rubel, Esq. LAW OFFICES OF KIRA M. RUBEL 3615 Harborview Drive, Suite C Gig Harbor, WA 98332-2129 Telephone: (800) 836-6531 Facsimile: (206) 238-1694 E-mail: krubel@kmrlawfirm.com PEOPLE'S UNITED: Illegally Broke Escrow Agreements, Investors Say ----------------------------------------------------------------- Almasood Qureshi, Alexandre Daccache, Carlos Enrique Hiller Sanchez, Phillip Calderwood, Jose Antonio Pietri, Jose R. Casseres-Pinto and Tong Yi Wang, on behalf of themselves and all others similarly situated, Plaintiffs, V. People's United Financial, Inc., as successor-in-interest to Chittenden Trust Company, People's United Bank, Mitchell Silberberg & Knupp, LLP, as successor-in-interest to Richardson & Patel, LLP, Mitchell Silberberg & Knupp, LLP, David B. Gordon and David B. Gordon, A Professional Corporation, Defendants, Case No. 18-cv-00163, (D. Vt., October 5, 2018), is a class action on behalf of 836 individuals, who invested in the development of the Jay Peak Ski Resort, alleging fraud under federal security laws. Plaintiffs and all 836 investors in the scheme were limited partners of eight different Vermont limited partnerships involved in the development of Jay Peak, and subsequently another Vermont ski resort known as Burke Mountain. They claim that the bank breached escrow agreements entered into with the Plaintiffs, and all the individual investors, and breached fiduciary duties arising under those agreements by permitting the misappropriation of escrowed funds held by the Defendants for uses other than those mandated under the escrow agreements and subscription agreements for the various limited partnerships. [BN] Plaintiff is represented by: Lisa B. Shelkrot LANGROCK SPERRY & WOOL LLP PO Box 721, 210 College Street Burlington, VT 05402 Phone: (802) 864-0217 Email: lshelkrot@langrock.com - and - Harley S. Tropin, Esq. Dyanne E. Feinberg, Esq. Tal J. Lifshitz, Esq. Maia Aron, Esq. Rachel Sullivan, Esq. KOZYAK TROPIN & THROCKMORTON LLP 2525 Ponce de Leon Blvd., 9th Floor Coral Gables, FL 33134 Telephone: (305) 372-1800 Facsimile: (305) 372-3508 Email: hst@kttlaw.com tjl@kttlaw.com gfranjola@kttlaw.com rs@kttlaw.com def@kttlaw.com ma@kttlaw.com - and - Daniel C. Girard, Esq. Angelica M. Ornelas, Esq. GIRARD SHARP LLP 601 California Street, Suite 1400 San Francisco, CA 94108 Phone: (415) 981-4800 Fax: (415) 981-4846 Email: dgirard@girardsharp.com aornelas@girardsharp.com - and - Paul Aiello, Esq. Michael P. Bennett, Esq. BENNETT AIELLO The Ingraham Building, Eighth Floor 25 Southeast Second Avenue Miami, FL 33131 Telephone: (305) 358-9011 Facsimile: (305) 358-9012 Email: paiello@bennettaiello.com mbennett@bennettaiello.com PHYSICIAN LABORATORIES: Rivas Seeks to Certify Class ---------------------------------------------------- In the class action lawsuit captioned as MELISSA RIVAS, on behalf of herself and all others similarly situated, the Plaintiff, vs. PHYSICIAN LABORATORIES, INC., an Arizona corporation; MDX LOGISTICS, a Michigan corporation; SEBAPHARMA GmbH & CO. KG, a corporation organized under the laws of Germany; COSTCO WHOLESALE CORPORATION, a Washington corporation; RITE AID CORPORATION, a Delaware corporation; ALEX FAZELI, an individual; MONROE FAZELI, an individual; and DOES l through 100, Case 8:18-cv-00729-DOC-AGR (C.D. Cal.), the Plaintiff will move the Court on December 17, 2018, for an order certifying a class defined as: "all persons similarly situated or class members consists of all persons who, between 2014 and 2018, purchased Sebamed Products in California that were unlawfully represented, inter alia, as exactly 5.5 -- precisely the pH of healthy skin; " "meticulously formulated to a pH balance of exactly 5.5; " "essential in maintaining your skin's natural hydrolipid barrier against environmental stress; " and related fraudulent misrepresentations." According to the Plaintiff, the persons similarly situated or in the class are so numerous, consisting of thousands of individuals, that the joinder of all such persons is impracticable and that the disposition of their claims in a representative or class action rather that in individual actions will benefit the parties and the Court.[CC] Counsel for Plaintiff Melissa Rivas and the Proposed Class: Jeffrey S. Benice, Esq. BENICE LAW Website: wvvw.JeffreyBenice.com 3080 Bristol Street Sixth Floor, Suite 630 Costa Mesa, CA 92626 Telephone No.: (714) 641-3600 Facsimile No.: (714) 641-3604 E-Mail: JSB@JeffreyBenice.com PRIDE BUS: Scorcia Seeks Unpaid Wages under Labor Law ----------------------------------------------------- VINCENZO SCORCIA, on behalf of himself and all others similarly situated, the Plaintiffs, vs. PRIDE BUS CORP., and AGOSTINO VONA, individually, the Defendants, Case No. 159851/2018 (N.Y. Sup. Ct., Oct. 24, 2018), seeks to recover damages and other legal and equitable relief, under the New York State Labor Law, and the New York Wage Theft Prevention Act. According to the complaint, the Defendants own and operate buses that drive routes throughout New York State. The Defendants employed Plaintiff as a driver in New York. The Plaintiff was, throughout his entire employment with Defendants, a covered, non- exempt employee within the meaning of the NYLL. As such, Plaintiff was entitled to be paid in full for all hours worked, the lawsuit says.[BN] Attorneys for Plaintiffs: Mark Gaylord, Esq. BOUKLAS GAYLORD LLP 400 Jericho Turnpike Suite 226 Jericho, NY 11753 Telephone: (516) 742-4949 Facsimile: (516) 742-1977 PROFESSIONAL PLACEMENT: Court Stays Bid for Class Certification --------------------------------------------------------------- In the class action lawsuit captioned THOMAS WHALEN, the Plaintiff, vs. PROFESSIONAL PLACEMENT SERVICES, LLC and CAPITAL ONE NA, the Defendant, Case No. 18-CV-1488 (E.D. Wisc.), the Hon. Judge Lynn Adelman entered an order granting Plaintiff's motions to stay the class certification motion and for relief from the local rules. The court said, "Plaintiff's motion for class certification is hereby stayed. The Plaintiff brings this putative class action, alleging violations of the Fair Debt Collection Practices Act. To prevent defendants from mooting the action, plaintiff moves for class certification and to stay that motion. See Damasco v. Clearwire Corp., 662 F.3d 891, 896 (7th Cir. 2011), overruled on other grounds by Chapman v. First Index, Inc., 796 F.3d 783 (7th Cir. 2015); see also Campbell–Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016). Plaintiff also moves for relief from local rules requiring every motion to be accompanied by a supporting memorandum and imposing a briefing schedule."[CC] REAL AGENT PRO: Accused by Gomes Class Suit of Violating TCPA ------------------------------------------------------------- Carla Gomes, on behalf herself and others similarly situated v. Real Agent Pro, LLC d/b/a Advantage U, Case No. 1:18-cv-12145 (D. Mass., October 15, 2018), alleges that the Defendant routinely violates the Telephone Consumer Protection Act by using an automatic telephone dialing system to place non-emergency calls to telephone numbers assigned to a cellular telephone service without prior express consent. Real Agent Pro, LLC, doing business as Advantage U, is a corporation located in Rochester New York. The Defendant refers to itself as an "all-in-one real estate sales and marketing solution." The Defendant offers services that include "cold calling prospective home sellers."[BN] The Plaintiff is represented by: Kevin K. Crick, Esq. RIGHTS PROTECTION LAW GROUP, PLLC 8 Faneuil Hall Marketplace, Third Floor Boston, MA 02109 Telephone: (844) 574-4487 Facsimile: (888) 622-3715 E-mail: k.crick@rightsprotect.com - and - Aaron D. Radbil, Esq. GREENWALD DAVIDSON RADBIL PLLC 106 East Sixth Street, Suite 913 Austin, TX 78701 Telephone: (561) 826-5477 Facsimile: (561) 961-5684 E-mail: aradbil@gdrlawfirm.com RELIASTAR LIFE: Advance Trust Sues Over Excessive Insurance Charges ------------------------------------------------------------------- Advance Trust & Life Escrow Services, LTA, as securities intermediary for Life Partners Position Holder Trust, on behalf of itself and all others similarly situated, Plaintiff, v. Reliastar Life Insurance Company, Defendant, Case No. 18-cv-02863 (D. Minn., October 5, 2018), seeks to recover compensatory damages, pre-judgment and post-judgment interest resulting from breach of contract. ReliaStar policyholders have been forced to pay unlawful and excessive cost of insurance charges, says the complaint. Defendant failed to base cost of insurance rates on its expectations as to future mortality experience, and instead used cost of insurance charges as a way to bolster its profits, the complaint adds. [BN] Plaintiff is represented by: Thomas J. Leach, Esq. Michael A. Erbele, Esq. MERCHANT & GOULD P.C. 3200 IDS Center 80 South 8th Street Minneapolis, MN 55402 Phone: (612) 332-5300 Fax: (612) 332-9081 E-mail: tleach@merchantgould.com merbele@merchantgould.com - and - Peter A. Gergely, Esq. MERCHANT & GOULD P.C. 1801 California Street, Suite 3300 Denver, CO 80202 Phone: (303) 357-1670 Fax: (612) 332-9081 E-mail: pgergely@merchantgould.com - and - Seth Ard, Esq. Ryan Christopher Kirkpatrick, Esq. SUSMAN GODFREY L.L.P. 1301 Avenue of the Americas, 32nd Floor New York, NY 10019 Phone: (212) 729-2017 Fax: (212) 336-8340 E-mail: sard@susmangodfrey.com rkirkpatrick@susmangodfrey.com - and - Steven G. Sklaver, Esq. Glenn C. Bridgman, Esq. SUSMAN GODFREY L.L.P. 1900 Avenue of the Stars, Suite 1400 Los Angeles, CA 90067 Phone: (310) 789-3100 Fax: (310) 789-3150 E-mail: ssklaver@susmangodfrey.com gbridgman@susmangodfrey.com RUNNING SPECIALTY: Violates ADA, Nixon Suit Asserts ---------------------------------------------------- Donald Nixon filed a class action lawsuit against The Running Specialty Group, LLC under the Americans with Disabilities Act. The case is styled as Donald Nixon on behalf of himself and all others similarly situated, Plaintiff v. The Running Specialty Group, LLC, Defendant, Case No. 1:18-cv-06068 (E.D. N.Y., Oct. 30, 2018). The Running Specialty Group, LLC owns and operates retail stores for running products which include apparels and shoes. The company was incorporated in 2011 and is based in Indianapolis, Indiana.[BN] The Plaintiff is represented by: Jonathan Shalom, Esq. Shalom Law, PLLC 124-04 Metropolitan Avenue Kew Gardens, NY 11374 Phone: (516) 807-1748 Email: jonathan.shalom25@gmail.com SECRET STASH: Stinnett Sues over Telemarketing Text Messages ------------------------------------------------------------ DENISE STINNETT, individually and on behalf of all others similarly situated, the Plaintiff, vs. P2C3 LLC d/b/a The Secret Stash: Progressive Medicine, a Colorado Limited Liability Company, the Defendant, Case 9:18-cv-81399-DMM (S.D. Fla, Oct. 17, 2018), seeks injunctive relief to halt Defendant's illegal conduct, which has resulted in the invasion of privacy, harassment, aggravation, and disruption of the daily life of thousands of individuals. and also seeks statutory damages on behalf of herself and members of the class, and any other available legal or equitable remedies for Defendants' violations of the Telephone Consumer Protection Act. According to the complaint, the Defendant is an entity that specializes in selling cannabis products. To promote its services, Defendant engages in unsolicited marketing, harming thousands of consumers in the process. On or about June 17, 2017, June 20, 2017, December 29, 2017, March 9, 2018, March 12, 2018, March 19, 2018, and April 20, 2018, Defendant sent telemarketing text messages to Plaintiff's cellular telephone number ending in 2818. Defendant's text messages were transmitted to Plaintiff’s cellular telephone. Defendant's text messages constitute telemarketing because they encouraged the future purchase or investment in property, goods, or services, i.e., selling Plaintiff cannabis products. At no point in time did Plaintiff provide Defendant with his express written consent to be contacted using an ATDS. The Plaintiff is the subscriber and sole user of the 2818 Number, and is financially responsible for phone service to the 2818 Number. Plaintiff has been registered with the national do-not-call registry since 2014, the lawsuit says.[BN] Counsel for Plaintiff and the Class: Andrew J. Shamis, Esq. SHAMIS & GENTILE, P.A. 14 NE 1 st Avenue, Suite 400 Miami, FL 33132 Telephone: 305-479-2299 E-mail: ashamis@shamisgentile.com - and - Scott Edelsberg, Esq. EDELSBERG LAW, PA 19495 Biscayne Blvd No. 607 Aventura, FL 33180 Telephone: 305-975-3320 E-mail: scott@edelsberglaw.com SENOMYX INC: Kim Seeks to Halt Merger Deal; Seeks Financials ------------------------------------------------------------ Cornelia Kim, individually and on behalf of all others similarly situated, Plaintiff, v. Senomyx, Inc., Kent Snyder, Stephen A. Block, Tom Erdmann, Mary Ann Gray, John W. Poyhonen, Dan Stebbins, Christopher Twomey, Firmenich Incorporated and Sentry Merger Sub, Inc., Defendants, Case No. 18-cv-01547, (D. Del., October 8, 2018), seeks to enjoin defendants and all persons acting in concert with them from proceeding with, consummating or closing the acquisition of Senomyx, Inc. by Firmenich Inc. and Sentry Merger Sub, Inc., or rescinding it in the event defendants consummate the merger. The Plaintiff also seeks rescissory damages, costs of this action, including reasonable allowance for plaintiff's attorneys' and experts' fees and such other and further relief under the Securities Exchange Act of 1934. Senomyx stockholders will receive $1.50 in cash per share under the proposed transaction. Senomyx is into flavor ingredients and natural high intensity sweeteners for food and beverage under the Complimyx, Sweetmyx, Savorymyx and Bittermyx brand. Defendants have allegedly locked up the deal and have precluded other bidders from making successful competing offers for the company. Said consideration also appears inadequate given the intrinsic value of the company, the Plaintiff contends. Moreover, the solicitation statement omitted the analyses performed by Needham & Company, LLC, the Defendant's financial adviser with respect to discounted cash flow analyses, the range of illustrative terminal enterprise values, the specific inputs and assumptions underlying the discount rates and Senomyx's cash and debt. These are all needed for the shareholders to make a sound decision on the merger deal. [BN] Plaintiff is represented by: Seth D. Rigrodsky, Esq. Brian D. Long, Esq. Gina M. Serra, Esq. RIGRODSKY & LONG, P.A. 300 Delaware Avenue, Suite 1220 Wilmington, DE 19801 Tel: (302) 295-5310 Facsimile: (302) 654-7530 Email: sdr@rl-legal.com bdl@rl-legal.com gms@rl-legal.com SERGEANT'S PET: Bietsch Appeals Class Cert. Bid Denial to 7th Cir. ------------------------------------------------------------------- Plaintiffs Ryan Bietsch, et al., filed an appeal from a court ruling in their lawsuit titled Ryan Bietsch, et al. v. Sergeant's Pet Care Products, Incorporated, Case No. 1:15-cv-05432, in the U.S. District Court for the Northern District of Illinois, Eastern Division. The appellate case is captioned as Ryan Bietsch, et al. v. Sergeant's Pet Care Products, Incorporated, Case No. 18-8018, in the U.S. Court of Appeals for the Seventh Circuit. As reported in the Class Action Reporter on Oct. 8, 2018, the Hon. Judge Sara L. Ellis entered an order: 1. denying the Plaintiffs' motion for class certification of: National Class: "all persons in the United States who purchased Pur Luv Grande Bones and/or Mini Bones Treats within the Class Period of June 19, 2010, through the present"; and Consumer Fraud Multistate Class: "all persons residing in California, Florida, Illinois, Massachusetts, Michigan, Minnesota, Missouri, New Jersey, New York, Ohio, and Washington who purchased Pur Luv Grande Bones and/or Mini Bones Treats within the Class Period of June 19, 2010, through the present." 2. denying Sergeant's motion to exclude Dr. Kelly Swanson's expert opinions and testimony; and 3. granting in part and denying in part Plaintiffs' motion to exclude Dr. Jorg Steiner's expert opinion and testimony. The Court said, "The Plaintiffs make no real effort to address the issue of injury. Standing to pursue prospective injunctive relief requires a threat of future harm that is not conjectural or hypothetical. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992). "Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief, however, if unaccompanied by any continuing, present adverse effects." O'Shea v. Littleton, 414 U.S. 488, 495â€"96, 94 S. Ct. 669, 38 L. Ed. 2d 674 (1974). The Plaintiffs do not explain how the mere presence of the Pur Luv Treats on the market will cause them continuing adverse effects. Without such a showing, they have no standing to pursue an injunction. Therefore, the Court finds this case unsuitable for certification under Rule 23."[BN] Plaintiffs-Petitioners RYAN BIETSCH, MICHAEL PFORTMILLER, JUSTIN MILLER and SELIM FREIHA, individually and on behalf of all others similarly situated, are represented by: Todd L. McLawhorn, Esq. SIPRUT PC 17 N. State Street Chicago, IL 60602 Telephone: (312) 236-0000 Facsimile: (312) 878-1342 E-mail: jsiprut@siprut.com Defendant-Respondent SERGEANT'S PET CARE PRODUCTS, INCORPORATED, a Michigan corporation, is represented by: Russell S. Jones, Jr., Esq. POLSINELLI PC 900 W. 48th Place Kansas City, MO 64112 Telephone: (816) 753-1000 E-mail: rjones@polsinelli.com - and - Rodney L. Lewis, Esq. POLSINELLI PC 150 N. Riverside Plaza Chicago, IL 60606 Telephone: (312) 819-1900 E-mail: rodneylewis@polsinelli.com SERVICE EXPERTS: Court Allows Amended Donato FLSA Suit ------------------------------------------------------ In the case, JOSEPH DONATO, individually and on behalf of all other persons similarly situated, Plaintiff, v. SERVICE EXPERTS, LLC, doing business as Service Experts Heating and Air Conditioning; and SERVICE EXPERTS HEATING & AIR CONDITIONING NEW YORK, LLC; Defendants, Case No. 1:17-CV-436 (DNH/CFH) (N.D. N.Y.), Judge David N. Hurd of the U.S. District Court for the Northern District of New York (i) granted the Plaintiff's motion to amend, and (ii) granted the Defendants' motion to dismiss. Donato brings the putative class action on behalf of himself and others similarly situated against Defendants Service Experts, LLC, doing business as Service Experts Heating and Air Conditioning, and Service Experts Heating & Air Conditioning New York, LLC. The Plaintiff alleges violations of the Fair Labor Standards Act ("FLSA"), and the New York State Labor Law ("NYLL"), and seeks to recover federal and state mandated wages and overtime pay owed, but never paid, to the Plaintiff and others similarly situated who have worked as plumbers and/or HVAC technicians at the Defendants' locations within the applicable time periods. Donato's employment with the Defendants as a plumbing technician began on July 12, 2013 through the present. The Defendants' business provides residential and commercial HVAC service and replacement, ancillary residential home services, including plumbing, indoor air quality and energy audits, commercial HVAC service, maintenance and replacement, and HVAC installation in commercial and residential new construction through the United States. It is undisputed that the Plaintiff is a non-exempt employee under federal and state labor laws and thus entitled to overtime for hours worked in excess of forty a week, in accordance with the applicable law. Donato alleges that because he was only compensated for time spent responding to service calls, he repeatedly and routinely worked in excess of 40 hours per workweek during his regular workweeks and while "on call," including when he was engaged to wait for dispatch calls. The Defendants moved to dismiss the Plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state any claims upon which relief could be granted. The Plaintiff opposed and the Defendants replied in further support. Later, the Plaintiff moved to amend his complaint and for equitable tolling of the statute of limitations for putative opt-in Plaintiffs, as of Oct. 19, 2017, until the date that the Court sets f or the expiration of the opt-in period in the matter. The crux of his amended complaint is that the Defendants failed to pay employees for all hours worked and also failed to pay overtime for hours worked over 40 in a given week, all because the Defendants do not take into account the time employees are required to wait at home for dispatch calls. Thus, the Plaintiff asserts claims for both unpaid wages and unpaid overtime in violation of the FLSA. The Defendants opposed and the Plaintiff replied in further support. An oral argument was heard on Dec. 15, 2017, in Utica, New York. The decision was reserved. Judge Hurd finds that even taking the Plaintiff's allegations as true which must be done on a motion to dismiss, he was "waiting to be engaged" rather than "engaged to wait" during the time periods in question. Accordingly, he was not working under the FLSA during that inactive time and hours not actually worked are not required to be compensated under the FLSA nor counted toward overtime calculations for hours worked over 40 in a week. As Donato's own time records and pay stubs demonstrate he was compensated for all hours worked and compensated a premium overtime rate for all hours worked over 40 in a given week, he has not provided sufficient support to allow the court to infer his entitlement to overtime. For these reasons, the Defendants' motion to dismiss the Plaintiff's FLSA claim will be granted and the First cause of action will be dismissed. In addition, there are no exceptional circumstances present in the case that might warrant a different conclusion. Because the Defendants' motion to dismiss will be granted as to the federal FLSA claim, the continued exercise of supplemental jurisdiction over Donato's state law claims will be declined. Accordingly, the Plaintiff's NYLL claims will be dismissed without prejudice. As the Plaintiff's FLSA claim will be dismissed and supplemental jurisdiction declined over the NYLL claims, there is no need to consider any remaining arguments. For these reasons, Judge Hurd granted the Plaintiff's motion to amend, and the amended complaint is accepted. He also granted the Defendants' motion to dismiss. The Plaintiff's First cause of action under the FLSA is dismissed. The Judge declined the supplemental jurisdiction over the Second, Third, and Fourth causes of action, and dismissed those claims without prejudice. The Clerk is directed to enter judgment accordingly and close the file. A full-text copy of the Court's Sept. 28, 2018 Memorandum-Decision and Order is available at https://is.gd/oi0KVG from Leagle.com. Joseph Donato, individually and on behalf of all other persons similarly situated, Plaintiff, represented by Benjamin David Light -- Blight@callagylaw.com -- Maggs & McDermott, LLC, pro hac vice, Carlo Alexandre C. de Oliveira -- CdeOliveira@coopererving.com -- Cooper, Erving Law Firm - Albany Office & Phillip G. Steck, Cooper, Erving Law Firm - Albany Office. Service Experts, LLC, doing business as Service Experts Heating and Air Conditioning & Service Experts Hearting & Air Conditioning New York, LLC, Defendants, represented by William J. Anthony -- William.Anthony@jacksonlewis.com -- Jackson Lewis P.C. - Albany Office, Christopher John Stevens -- Christopher.Stevens@jacksonlewis.com -- Jackson Lewis P.C. - Albany Office, Stephanie L. Goutos -- Stephanie.Goutos@jacksonlewis.com -- Jackson Lewis P.C. - Albany Office & Vincent E. Polsinelli -- Vincent.Polsinelli@jacksonlewis.com -- Jackson Lewis P.C. - Albany Office. SINCLAIR BROADCAST: Judge Consolidates 17 Antitrust Lawsuits ------------------------------------------------------------ Lorraine Mirabella, writing for The Baltimore Sun, reports that a panel of federal judges has consolidated 17 lawsuits accusing Sinclair Broadcast Group and other media companies of scheming to artificially raise prices for local television advertisements. Cases pending in federal court in Maryland and Illinois will be combined with 15 related cases and heard in Illinois, a panel on multidistrict litigation ordered. "The actions commonly allege that the conspiracy was effectuated by sharing competitively sensitive information through . . . . advertising sales teams in order to raise advertising prices to supracompetitive levels," said the order, filed on October 9. Sinclair had no comment on the lawsuit consolidations, a spokesman said. In late July, Clay, Massey & Associates, an Alabama law firm that advertised on TV, filed an antitrust class action lawsuit in Illinois accusing the six biggest owners of local television stations televisions of inflating ad prices. Besides Hunt Valley-based Sinclair, defendants include Tribune Media Co., Gray Television Inc., Hearst Corp., Nexstar Media Group Inc. and Tegna Inc., which collectively own, operate or offer service to more than 443 local stations as of 2016, the lawsuit says. The law offices of Peter Miller, Esq. -- pmiller@petermillerlaw.com -- in Little Rock, Ark., filed a similar lawsuit against Sinclair and Tribune, also at the end of July. "Instead of competing with each other on price for advertising sales as horizontal competitors typically would, defendants and their co-conspirators shared proprietary information and conspired to fix prices and stifle competition in the market," the Peter MIller lawsuit alleged. Sinclair and other defendants had asked the court for additional time to respond to the lawsuits while the court decided whether to consolidate cases. Sinclair also is involved in litigation with Tribune, its former partner in a failed $3.9 billion deal to combine the two media giants. Sinclair filed a counter-lawsuit against Tribune at the end of August. Tribune had canceled the planned merger and sued Sinclair for $1 billion, alleging breach of contract. [GN] SODEXO INC: Court Grants Summary Judgment Bid in Lazo Suit ---------------------------------------------------------- In the case, TRACEY LAZO, JAMEN HARPER, MUSTAPHA JARRAF, NY'COLE YOUNG THOMAS, and all others similarly situated, Plaintiffs, v. SODEXO, INC., Defendant, Civil Action No. 15-13366-GAO (D. Mass.), Judge George A. O'Toole, Jr. of the U.S. District Court for the District of Massachusetts the Defendant's Motion for Summary Judgment. The named Plaintiffs bring suit against Sodexo for alleged violations of the Massachusetts Tips Act, Mass. Gen. Laws ch. 149, Section 152A. The Plaintiffs claim that Sodexo unlawfully retained money collected from patrons as service charges, rather than remitting the monies to wait staff and service employees as the statute requires. Sodexo has moved for summary judgment. Harper worked as a wait staff and banquet support employee in the EDR at One Lincoln from November 2014 to May 2015. Lazo worked as a wait staff employee, cashier, and barista at One Lincoln from May 2008 until June 2015. Jarraf worked at One Lincoln and at Plimoth Plantation. At Plimoth Plantation, Jarraf worked as a server. At One Lincoln, he was employed as a banquet captain in the EDR from August 2009 through September 2015. Sodexo provides a number of different food service options at One Lincoln Street, Boston, for the two companies located in the building, State Street Bank and K&L Gates LLP. It operates a cafeteria for State Street and K&L Gates employees, which offers traditional cafeteria-style food service and delivery of items, such as boxed lunches, to meetings throughout the building. It also operates an Executive Dining Room ("EDR"). At least two Sodexo employees, Jarraf and a co-worker, Constance Passanisi, aver that they were told by customers that they wanted to leave a tip, but that it had already been paid as part of the bill. Additionally, Passanisi avers that Sodexo management told customers that they did not need to tip and would not permit wait staff or bartenders to put out a tip jar. Jarraf avers that he was told by a customer that the customer wished to leave a tip but that the tip was already included with the price. The gravamen of the Plaintiffs' claim is that the fees charged at One Lincoln for EDR services and at Plimoth Plantation are "service charges" under the statute because customers would have reasonably expected those fees to be given to the wait staff employees. The Defendants move for summary judgment, arguing generally that in relevant part that (1) the administrative charge at the EDR was not a "service charge" within the meaning of the Tips Act because it was not presented to "patrons" and, even if State Street and K&L Gates are considered "patrons," Sodexo made clear the administrative charge was not a tip or gratuity; and (2) it did not impose a "service charge" at Plimoth Plantation. As to the EDR, Judge O'Toole finds that the record shows that Sodexo managers made State Street and K&L Gates aware of the purpose of the administrative charge and that it was not distributed to wait staff. That is sufficient to dispel the possibility that a patron would reasonably believe that the fee is a gratuity, and the Plaintiffs have not offered any contradicting factual evidence suggesting otherwise. Because the undisputed facts show that Sodexo informed the patrons or other persons receiving the invoices for the EDR that the administrative fee did not represent a tip or service charge for wait staff employees, Sodexo is entitled to judgment a matter of law on the Plaintiffs' EDR claim. As to Plimoth Plantation, the Defendant contends that it was in compliance with the Tips Act at Plimoth Plantation under the safe harbor provision of the statute. The Judge agrees. He says, the explanation on catering invoices describing that the "Staffing Charge" or "Support Charge" was "not a gratuity" in its early iteration and does not represent at tip or service charge paid directly to wait staff, employees or bartenders in its later iteration is sufficient to bring the charge within the Section 152A(d) safe harbor provision. Both versions explicitly state that the charge is not a gratuity, and the second version takes the further step of notifying customers that the fee is not remitted to employees. Consequently, Sodexo has demonstrated as a matter of law that it satisfied the requirements of the Section 152A(d) safe harbor provision with respect to the Plimoth Plantation fees and is therefore entitled to summary judgment on Jarraf's Plimoth Plantation Tips Act claim. For the foregoing reasons, Judge O'Toole granted the Defendant's Motion for Summary Judgment. The Judgment will enter in favor of the Defendant. A full-text copy of the Court's Sept. 28, 2018 Opinion and Order is available at https://is.gd/ZiXHDw from Leagle.com. Tracey Lazo, Jamen Harper, Mustapha Jarraf & Ny'Cole Young Thomas, Plaintiffs, represented by Edward A. Prisby, Raipher D. Pellegrino Associates, P.C. & John P. Regan, Jr., The Employee Rights Group, LLC. Sodexo, Inc., Defendant, represented by Douglas J. Hoffman -- Douglas.Hoffman@jacksonlewis.com -- Jackson Lewis PC & Jonathan R. Shank -- Jonathan.Shank@jacksonlewis.com -- Jackson Lewis PC. SPRINGFIELD, MA: Appeals Order in Disability Law Suit to 1st Cir. ----------------------------------------------------------------- Defendants Springfield Public Schools and Springfield, Massachusetts, filed an appeal from a court ruling in the lawsuit entitled Parent/Professional Advocacy League, et al. v. City of Springfield, et al., Case No. 3:14-cv-30116-MGM, in the U.S. District Court for the District Court of Massachusetts, Springfield. The appellate case is captioned as Parent/Professional Advocacy League, et al. v. City of Springfield, et al., Case No. 18-1976, in the United States Court of Appeals for the First Circuit. As reported in the Class Action Reporter on Sept. 20, 2018, Plaintiffs Disability Law Center, Inc., M. W. and Parent/Professional Advocacy League filed an appeal from a court ruling in the lawsuit. That appellate case is styled as M.W., a minor, by his parents, et al. v. City of Springfield, et al., Case No. 18-1867. The District Court previously granted the Defendants' Motion for Judgment on the Pleadings based on the Absence of IDEA Exhaustion in the case. The one-count complaint alleged the Defendants violated Title II of the Americans with Disabilities Act (ADA), with respect to S.S. and members of the proposed class by failing to provide the educational programs and services that would have allowed them equal access to the educational resources offered students attending neighborhood schools. In the course of arguing that the Plaintiffs lack standing, the Defendants raised concerns about IDEA exhaustion. The Cross-Appeal briefing schedule is set as follows: -- First Brief: Appellants PPAL, DLC, and M.W.'s principal brief and appendix are due on or before November 13, 2018; -- Second Brief: Appellees City of Springfield and Springfield Public Schools' principal/response brief must be filed within 30 days of service of the first brief; -- Third Brief: Appellants PPAL, DLC, and M.W.'s response/reply must be filed within 30 days of service of the second brief; and -- Fourth Brief: Appellees City of Springfield and Springfield Public Schools' reply brief must be filed within 14 days of service of the third brief.[BN] Plaintiff S. S., a minor, by his mother, S.Y., on behalf of himself and other similarly situated students; and Plaintiffs-Appellants/Cross-Appellees DISABILITY LAW CENTER, INC., and PARENT/PROFESSIONAL ADVOCACY LEAGUE are represented by: Alison Barkoff, Esq. CENTER FOR PUBLIC REPRESENTATION 1825 K St. NW, Suite 600 Washington, DC 20006 Telephone: (202) 854-1270 E-mail: abarkoff@cpr-us.org - and - Deborah Alyse Dorfman, Esq. Sandra J. Staub, Esq. CENTER FOR PUBLIC REPRESENTATION 22 Green St. Northampton, MA 01060-0000 Telephone: (413) 586-6024 E-mail: ddorfman@cpr-ma.org sstaub@cpr-ma.org Plaintiff S. S., a minor, by his mother, S.Y., on behalf of himself and other similarly situated students; and Plaintiffs-Appellants/Cross-Appellee DISABILITY LAW CENTER, INC., PARENT/PROFESSIONAL ADVOCACY LEAGUE and M. W., a minor, by his parents, L.N. and A.N., on behalf of himself and other similarly situated students, are represented by: Matthew T. Bohenek, Esq. Elizabeth M. Bresnahan, Esq. Jeff Goldman, Esq. Robert E. McDonnell, Esq. MORGAN LEWIS & BOCKIUS LLP 1 Federal Street Boston, MA 02110-1726 Telephone: (617) 951-8945 E-mail: matthew.bohenek@morganlewis.com elizabeth.bresnahan@morganlewis.com jeff.goldman@morganlewis.com robert.mcdonnell@morganlewis.com - and - Ira A. Burnim, Esq. Jennifer Mathis, Esq. BAZELON CENTER FOR MENTAL HEALTH LAW 1101 15th St, NW, Suite 1212 Washington, DC 20005-5002 Telephone: (202) 467-5730 E-mail: irab@bazelon.org jenniferm@bazelon.org Michael D. Blanchard, Esq. MORGAN LEWIS & BOCKIUS LLP 1 State Street Hartford, CT 06103-0000 Telephone: (860) 240-2700 E-mail: michael.blanchard@morganlewis.com Defendant DOMENIC J. SARNO, JR., in his official capacity as Mayor of City of Springfield, is represented by: Melinda Marsh Phelps, Esq. BULKLEY RICHARDSON & GELINAS LLP 1500 Main Street, Suite 2700 Springfield, MA 01115-5507 Telephone: (413) 272-6237 E-mail: mphelps@bulkley.com Defendants DOMENIC J. SARNO, JR., in his official capacity as Mayor of City of Springfield, and DANIEL J. WARWICK, in his official capacity as Superintendent of Springfield Public Schools; and Defendants-Appellees/Cross-Appellants SPRINGFIELD PUBLIC SCHOOLS and SPRINGFIELD, MA, are represented by: Edward M. Pikula, Esq. CITY OF SPRINGFIELD 36 Court St., Room 210 Springfield, MA 01103-0000 Telephone: (413) 787-6085 E-mail: attyemp@aol.com - and - Lisa Caryl deSousa, Esq. CITY OF SPRINGFIELD 1600 E Columbus Ave. Springfield, MA 01103 Telephone: (413) 886-5205 E-mail: ldsousa@springfieldcityhall.com Defendants-Appellees/Cross-Appellants SPRINGFIELD PUBLIC SCHOOLS and SPRINGFIELD, MA, are represented by: Stephen L. Holstrom, Esq. Mary Jane Kennedy, Esq. Melinda Marsh Phelps, Esq. BULKLEY RICHARDSON & GELINAS LLP 1500 Main Street, Suite 2700 Springfield, MA 01115-5507 Telephone: (413) 781-2820 E-mail: sholstrom@bulkley.com mkennedy@bulkley.com mphelps@bulkley.com Defendant-Appellee/Cross-Appellant SPRINGFIELD, MA, is represented by: Mary Ellen MacDonald, Esq. BULKLEY RICHARDSON & GELINAS LLP 1500 Main Street, Suite 2700 Springfield, MA 01115-5507 Telephone: (617) 368-2500 E-mail: mmacdonald@bulkley.com Interested Party S. B. is represented by: Elizabeth M. Bresnahan, Esq. MORGAN LEWIS & BOCKIUS LLP 1 Federal Street Boston, MA 02110-1726 Telephone: (617) 951-8638 E-mail: elizabeth.bresnahan@morganlewis.com Interested Party UNITED STATES is represented by: Karen L. Goodwin, Esq. U.S. ATTORNEY'S OFFICE 300 State St., Suite 230 Springfield, MA 01105-2926 Telephone: (413) 785-0269 E-mail: karen.goodwin@usdoj.gov - and - Anne Langford, Esq. U.S. DEPARTMENT OF JUSTICE 950 Pennsylvania Ave NW Washington, DC 20530-0001 Telephone: (202) 616-2727 E-mail: anne.langford@usdoj.gov - and - Michelle L. Leung, Esq. Cynthia A. Young, Esq. U.S. ATTORNEY'S OFFICE 1 Courthouse Way, Suite 9200 Boston, MA 02110-0000 Telephone: (617) 748-3626 E-mail: Michelle.Leung@usdoj.gov STEAK N SHAKE: Summary Judgment Bid in Drake FLSA Suit Denied ------------------------------------------------------------- In the case, SANDRA DRAKE and RANDY SMITH, on behalf of themselves and others similarly situated, Plaintiffs, v. STEAK N SHAKE OPERATIONS, INC., Defendant, Case No. 4:14-cv-01535-JAR (E.D. Mo.), Judge John A. Ross of the U.S. District Court for the Eastern District of Missouri, Eastern Division, denied SnS' Motion for Summary Judgment as to opt-in Plaintiff Katrina Wolfshoefer. On Oct. 25, 2017, the Court granted the Plaintiffs' Motion to Stay Briefing on two SnS motions for summary judgment until it ruled on the parties' competing motions to certify/decertify the Plaintiffs' class action. One of those motions for summary judgment was directed at Wolfshoefer on the ground that her deposition testimony conclusively establishes that she was an overtime-exempt managerial and/or administrative employee. On Dec. 22, 2017, the Court granted the Plaintiffs' Motion to Certify a class consisting of all persons who worked as SnS Managers at all corporate owned retail restaurants located in the State of Missouri at any time from Sept. 8, 2012 to the present. On Jan. 10, 2018, the Court lifted the stay on briefing. Rather than respond to SnS' Motion for Summary Judgment, the Plaintiffs moved to dismiss it, arguing that the Court's order granting certification rendered the motion moot. The Court denied the Plaintiffs' Motion to Dismiss and directed them to respond to SnS' Motion for Summary Judgment. They did so, and SnS replied. Judge Ross finds that Wolfshoefer's testimony creates a genuine issue of material fact as to what her primary job duties are, such that summary judgment is not appropriate. Moreover, the Court has already certified a class that includes Wolfshoefer and all other persons who worked as SnS Managers at all corporate owned retail restaurants located in the State of Missouri at any time from Sept. 8, 2012 to the present. In so doing, the Court determined that the material aspects of the class members' employment experiences were more alike than different, and that the differences SnS identified did not outweigh the similarities the Plaintiffs described The Judge finds that Wolfshoefer's experience is not so unlike the other class members' that she is uniquely recognizable as exempt. Thus, SnS has not shown that a reasonable jury would not have a legally sufficient evidentiary basis to find that SnS is liable to Wolfshoefer and therefore SnS is not entitled to judgment as a matter of law as to her claims. A full-text copy of the Court's Sept. 28, 2018 Memorandum and Order is available at https://is.gd/ODHFGo from Leagle.com. Sandra Drake & Randy Smith, on behalf of themselves and others similarly situated, Plaintiffs, represented by Brendan J. Donelon, DONELON, P.C. & Daniel W. Craig, DONELON, P.C. Steak N Shake Operations, Inc., an Indiana Corporation themselves and others similarly situated, Defendant, represented by Rene Leigh Duckworth -- rene.duckworth@ogletree.com -- OGLETREE DEAKINS. Steak N Shake Operations, Inc., an Indiana Corporation, Defendant, represented by Rodney A. Harrison -- rodney.harrison@ogletree.com -- OGLETREE DEAKINS, Erin E. Williams -- erin.williams@ogletree.com -- OGLETREE DEAKINS & Mallory M. Stumpf -- mallory.stumpf@ogletree.com -- OGLETREE DEAKINS. STUCKY & LAUER: Settlement of Maloy Class Suit Approved ------------------------------------------------------- In the class action lawsuit captioned SAMUEL MALOY on behalf of Himself and others similarly situated, the Plaintiff, v. STUCKY, LAUER & YOUNG, LLP, the Defendant, Case No. 1:17-cv-00336-TLS (N.D. Ind.), the Hon. Judge Theresa L. Springmann entered an order dated Oct. 25, 2018, approving the proposed class settlement agreement and certifying a class of: "all natural persons with an Indiana address to whom Defendant sent a letter based on a template in connection with the collection of a consumer debt on or after August 9, 2016 through August 9, 2017." The Settlement Agreement requires the Defendant to pay $1,000 to the named Plaintiff for his service as class representative and $5,000 to be distributed among the 889 class members for whom the parties possess valid addresses. The anticipated recovery for the 889 class members is $5.62 each. Pursuant to the Settlement Agreement, the Defendant agrees not to contest an award of attorneys' fees up to $30,000, and reasonable costs and expenses up to $3,000 to Class Counsel. Regarding the award of attorney's fees and expenses, the parties note that "the Settlement, however, is not conditioned upon such an award, and the amount ultimately awarded will be let [sic] to the Court's discretion." The Court withhods its ruling regarding Class Counsel's requests for attorney's fees and expenses until the parties submit briefing.[CC] TIMES SQUARE: Flores Sues over Tip Skimming ------------------------------------------- JOB FLORES, on behalf of himself and all others similarly situated, the Plaintiff, vs, TIMES SQUARE BARBEQUE, INC., LITTLE FISH CORP., and ALICART GROUP LLC, the Defendants, Case No. 520892/2018 (N.Y. Sup. Ct., Oct. 17, 2018), seeks to recover minimum wages, overtime compensation, and other damages for Plaintiff and his similarly situated co-workers, wait staff, servers, bussers, runners, bartenders, barbacks, and other similarly situated non-exempt employees who work or have worked at Virgil's Real Barbeque-Times Square restaurant located at 152 West 44th Street, New York, New York, and Carmine's Italian Restaurant-Times Square located at 200 West 44th Street, New York, New York. According to the complaint, Defendants took a tip credit towards its minimum wage obligations to Tipped Workers and thus paid Tipped Workers a cash wage lower than the applicable minimum wage. The Defendants, however, did not satisfy the requirements under the New York Labor Law or the Fair Labor Standards Act for which it could take a tip credit towards the hourly rates paid to Tipped Workers. Defendants failed to provide Plaintiff and other Tipped Workers with proper notification of the tipped minimum wage rate or tip credit provisions of the NYLL or the FLSA, or of their intent to apply a tip credit to Plaintiffs and other Tipped Workers' wages. Defendants also required Tipped Workers to perform non-tip producing side work, including, but not limited to, general cleaning of the restaurant and stocking and cleaning service areas, for more than 2 hours and/or 20% of their shifts, the lawsuit says.[BN] Attorneys for Plaintiff and the Putative Class: Brian S. Schaffer, Esq. Arsenio D. Rodriguez, Esq. FITAPELLI & SCHAFFER, LLP 28 Liberty Street, 30th Floor New York, NY 10005 Telephone: (212) 300-0375 TMT LITTLE ROCK: Dolphin Seeks Damages for FLSA Violation --------------------------------------------------------- Ian Dolphin, individually and on behalf of all others similarly situated, Plaintiff v. TMT Little Rock, Inc., and Ben Darnell Defendants, Case No. 4:18-cv-00810-SWW (E.D. Ark., October 30, 2018) is bought under the Fair Labor Standards Act and the Arkansas Minimum Wage Act for declaratory judgment, monetary damages, liquidated damages, prejudgment interest, costs, including a reasonable attorney's fee as a result of Defendants' failure to pay Plaintiff and other movers lawful overtime compensation for hours worked in excess of 40 hours per week. TMT Little Rock, Inc. is a for-profit corporation created and existing under and by virtue of the laws of the State of Arkansas, providing moving services. Ian Dolphin is a citizen and resident of Pulaski County, and worked for Defendants as a mover within 3 years preceding the filing of this complaint. Mr. Dolphin asserts that the Defendants have willfully and intentionally committed violations of the FLSA as described for at least three years prior to the filing of this Complaint.[BN] The Plaintiff is represented by: Chris Burks, Esq. Josh Sanford, Esq. SANFORD LAW FIRM, PLLC One Financial Center 650 South Shackleford, Suite 411 Little Rock, AK 72211 Phone: (501) 221-0088 Facsimile: (888) 787-2040 Email: chris@sanfordlawfirm.com josh@sanfordlawfirm.com TREVENA INC: Faces Mastopietro Securities Suit in E.D. Pa. ---------------------------------------------------------- TONY MASTOPIETRO, Individually and On Behalf of All Others Similarly Situated v. TREVENA INC., MAXINE GOWEN, and ROBERTO CUCA, Case No. 2:18-cv-04426-CMR (E.D. Pa., October 15, 2018), seeks damages caused by the Defendants' alleged violations of federal securities laws and to pursue remedies under the Securities Exchange Act of 1934. Throughout the Class Period, the Defendants made materially false and misleading statements regarding the Company's business, operational and compliance policies, the Plaintiff alleges. Specifically, the Plaintiff contends, the Defendants made false and/or misleading statements and/or failed to disclose that: (i) the U.S. Food and Drug Administration had not agreed to key elements of the Company's Phase 3 trial for oliceridine (TRV130); (ii) the FDA was unlikely to approve oliceridine (TRVIBO) based on the Company's Phase 3 trial; and (iii) as a result, Trevena's public statements were materially false and misleading at all relevant times. Trevena is incorporated in Delaware, with its principal executive offices located in Chesterbrook, Pennsylvania. The Individual Defendants are directors and officers of the Company. Trevena is a biopharmaceutical company developing innovative therapies based on breakthrough science to benefit patients and healthcare providers confronting serious medical conditions. The Company is currently developing OLINVO (oliceridine) Injection, touted as a next generation IV analgesic for the management of moderate-to-severe acute pain in the hospital and similar settings and has been granted Breakthrough Therapy designation by the FDA.[BN] The Plaintiff is represented by: D. Seamus Kaskela, Esq. KASKELA LAW LLC 201 King of Prussia Road, Suite 650 Radnor, PA 19087 Telephone: (484) 258-1585 Facsimile: (484) 258-1585 E-mail: skaskela@kaskelalaw.com - and - Jeremy A. Lieberman, Esq. J. Alexander Hood II, Esq. POMERANTZ LLP 600 Third Avenue, 20th Floor New York, NY 10016 Telephone: (212) 661-1100 Facsimile: (212) 661-8665 E-mail: jalieberman@pomlaw.com ahood@pomlaw.com - and - Patrick V. Dahlstrom, Esq. POMERANTZ LLP 10 South La Salle Street, Suite 3505 Chicago, IL 60603 Telephone: (312) 377-1181 Facsimile: (312) 377-1184 E-mail: pdahlstrom@pomlaw.com - and - Corey D. Holzer, Esq. HOLZER & HOLZER, LLC 1200 Ashwood Parkway, Suite 410 Atlanta, GA 30338 Telephone: (770) 392-0090 Facsimile: (770) 392-0029 E-mail: cholzer@holzerlaw.com TUCKER ENERGY: Court Denies Conditional Certification in McElroy ---------------------------------------------------------------- In the class action lawsuit captioned as BRANDON MCELROY, ROBERT HARRINGTON, AVERIL OWENS, MICHAEL RIDER, the Plaintiffs, vs. TUCKER ENERGY SERVICES, INC., TUCKER ENERGY SERVICES U.S.A., INC., the Defendants., Case No. 5:18-cv-00010-FB-ESC (W.D. Tex.), the Hon. Judge Elizabeth s. Chestney entered an order on Oct. 25, 2018, denying without prejudice Plaintiffs' motion for conditional certification with incorporated brief in support and Plaintiffs' motion for approval and distribution of notice and for disclosure of contact information. The Court said, "Although McElroy indicates he has traveled to Tucker's well sites in Texas, Oklahoma, and Louisiana, this fact still does not establish that a nationwide class of all oilfield workers is warranted, and the declarations submitted by Tucker raise further doubts as to the similarity of the proposed class. Christina Van Buren-Schele, Tucker's Corporate Human Resources Manager, states that Tucker is divided into several distinct and unique operating divisions -- stimulation, coiled tubing, and wireline -- each with its own managers, supervisors, and operators. McElroy's declaration does not identify these divisions or attempt to reconcile any differences between them. The declaration of Andrew Massey, a Senior Operator in the Wireline Division, states that his division does not have an Equipment Operator position and describes the divisions at Tucker as well separated. Massey describes his duties as handling explosives for the purpose of shooting perforated guns, a duty he does not believe is shared by any Equipment Operator in the Stimulation or Coiled Tubing Divisions, as they do not handle explosives or the wireline truck. The declaration of Richard Eaves, a Coil Operator in the Coil Tubing Division, states that his Division does not have Equipment Operators. "The Plaintiffs have not put forth substantial evidence that all oilfield workers, regardless of division, job title, or location, perform the same basic tasks. Nor is the Court convinced that the certification of a more narrow class of all Equipment Operators is appropriate, as Plaintiffs have failed to provide sufficient support for their allegation that the proposed class was subject to a single policy of denying overtime compensation. McElroy's declaration states that he and other Equipment Operators were made to work off the clock and were not properly compensated for these hours. Yet Plaintiffs have not submitted any other declarations aside from McElroy's. The Court only has knowledge as to the fact that the other named Plaintiffs were also Equipment Operators like McElroy from consulting the evidence attached to Tucker's response. Tucker submitted to the Court the declarations of five other non-Plaintiff Equipment Operators, all of whom uniformly state that they were responsible for keeping track of all hours worked, often using an app entitled Kronos to do so on their phones; that Tucker had a policy of paying overtime compensation to its Equipment Operators; and they were regularly paid for all hours worked, including time and a half for overtime approximately 100 hours of overtime during a long week and 58 hours of overtime on a medium week, an exorbitant amount of overtime hours in his position as Sand Coordinator and that he consistently received pay for all hours worked, including extensive amount of overtime hours, as an Equipment Operator. "All five of these Equipment Operators also stated that, if there was ever an error related to performing work prior to clocking in or other issues with regular or overtime compensation, Tucker promptly fixed the issues. In light of this record, the Court is unable to credit McElroy's sole statement that Equipment Operators were made to work overtime without compensation for purposing of conditional certifying this case as a collective action. Plaintiffs have failed to come forth with substantial allegations that the putative class members were together the victims of a single decision, policy or plan of Tucker to deny its workers overtime compensation. The Plaintiff's allegations fall short of convincing the Court that there is a nationwide class of victims subject to the same pay practice or plan, whether the expansive requested class of all oilfield workers or a more narrow class of Equipment Operators. Finally, the Court would be remiss is not again mentioning that the declaration filed in support of Plaintiffs‘ motion by McElroy is virtually identical to declarations filed by Plaintiffs' counsel in other cases pending before this Court and other courts seeking conditional certification under the FLSA. Conditional certification of a larger class of workers and the issuance of notice is not warranted at this time. However, this denial will be without prejudice to refile an amended motion for conditional certification in the event that Plaintiffs are later able to submit more."[CC] US ARMY: Court Wants Calixto Complaint, Class Cert. Bid Revised --------------------------------------------------------------- In the class action lawsuit captioned LUCAS CALIXTO, et al., the Plaintiffs, v. UNITED STATES DEPARTMENT OF THE ARMY, et al., the Defendants, Case 1:18-cv-01551-ESH (D.C.), the Hon. Judge Ellen S. Huvelle has entered an order: 1. denying without prejudice Plaintiffs' motion for preliminary injunction and provisional class certification; 2. denying without prejudice Plaintiffs' motion for class certification and appointment of class counsel; 3. denying as moot Defendants' motion to stay their response to the amended complaint; 4. granting Plaintiffs' motion for a briefing schedule; 5. granting Plaintiffs leave to further amend their complaint; 6. directing Plaintiffs to file their second amended complaint no later than Tuesday, November 13, 2018 at 12 p.m.; and 7. directing Plaintiffs to file any renewed motion for class certification no later than November 13 at 12 p.m. The Defendants were required to file last month a report listing every MAVNI who has received a discharge order from the U.S. Army Recruiting Command (USAREC) and/or U.S. Army Reserve Command (USARC) that was effective on or after July 20, 2018; a report detailing the status of the MAVNI soldier who is the subject of the U.S. Army Recruiting Battalion discharge order; a report clarifying whether any DEP or DTP MAVNI is expected to be discharged (or has been discharged within the past year) due to reaching the three-year time-out; and a bi-weekly status report regarding the Army's new policy.[CC] VERIZON PENNSYLVANIA: Compelled to Produce Docs in Monroeville Suit ------------------------------------------------------------------- Judge David Stewart Cercone of the U.S. District Court for the Western District of Pennsylvania granted the Plaintiff's motion to compel in the case, MUNICIPALITY OF MONROEVILLE, TOWNSHIP OF EAST BRANDYWINE, and TOWNSHIP OF WEST BRADFORD, on behalf of themselves and all others similarly situated, Plaintiffs, v. VERIZON PENNSYLVANIA LLC and VERIZON COMMUNICATIONS INC., Defendants, Case No. 2:15cv1100 W.D. Pa.). Defendant Verizon Communications, Inc. ("VCI"), will designate adequate deponents for all of the topics listed in the Plaintiffs' Rule 30(b)(6) Notice Directed to VCI and for topics 5-9 of the Plaintiffs' Second Rule 30(b)(6) Notice Directed to VCI. To the extent VCI is unable to designate adequate deponents it will explain in detail why it cannot. VCI also will respond in full to RFP Nos. 4, 6 and 7 of the Plaintiffs' First Set of Requests for Production of Documents to VCI; RFP Nos. 8-20, 23 and 25 of the Plaintiffs' Second Set of Requests for Production of Documents to VCI; and ROG No. 24 to the Plaintiffs' Second Set of Interrogatories to VCI. The Counsel will work in good faith to narrow the scope of production pursuant to First Request No. 6. Judge Cercone finds that the Plaintiffs' Reply Brief persuasively sets forth the reasons why the discovery ordered (1) is relevant to the matters currently at issue and (2) is not disproportionate or unduly burdensome given the nature and backdrop of the putative class action; the importance of the information in resolving the claims, defenses and issues surrounding class certification; the parties' respective access to the information; and its benefit in that process when contrasted with the anticipated expense of compliance. Moreover, he says, the central components of the Defendant's opposition are unavailing. While the argument can be advanced that complete compliance with all discovery needed to calculate with precision the detailed mathematical damage calculations for each LFA that potentially is within the scope of the contemplated class for which the Plaintiff will seek class certification was not within the scope of Phase I discovery, that argument is not a basis for avoiding the discovery the Plaintiffs currently seek. The Case Management Order likewise authorized discovery on the class certification, which encompasses the clear identification of potential class members and the information needed to make competent assessments about whether the Plaintiffs share common and typical claims with potential class members that can meet the requirements for certification. Similarly, the Court gave careful consideration to the separate corporate entity and the inability to establish an agency relationship defenses at the motion to dismiss stage. The completion of the ordered discovery is necessary to conduct these adjudications on the merits. Finally, the Judge finds that the contention that the discovery is somehow duplicative or unduly burdensome in light of the completed discovery is unconvincing. The outstanding Requests for Production similarly are central to resolution of the issue of agency and related corporate entity defense (and the manner in which these issues will impact class certification) and compliance is mandated regardless of which way the substantive information tips the scale. Such discovery must be produced in order for the case to progress to the point where meaningful consideration can be given to those issues/defenses. The Judge recognizes that the ordered discovery will require the parties to engage in significant undertakings. Status conferences with the counsel will be scheduled to assist both sides in working through these undertakings. In the case, MUNICIPALITY OF MONROEVILLE, TOWNSHIP OF EAST BRANDYWINE, and TOWNSHIP OF WEST BRADFORD, on behalf of themselves and all others similarly situated, Plaintiffs, v. VERIZON PENNSYLVANIA LLC and VERIZON COMMUNICATIONS INC., Defendants, A full-text copy of the Court's Sept. 28, 2018 Memorandum Order is available at https://is.gd/2K2X4K from Leagle.com. MUNICIPALITY OF MONROEVILLE, TOWNSHIP OF EAST BRANDYWINE & TOWNSHIP OF WEST BRADFORD, Plaintiffs, represented by Edwin J. Kilpela -- ekilpela@carlsonlynch.com -- Carlson Lynch LTD, Gary F. Lynch -- glynch@carlsonlynch.com -- Carlson Lynch Sweet & Kilpela, LLP, Jamisen A. Etzel -- jetzel@carlsonlynch.com -- Carlson Lynch Sweet & Kilpela, LLP & Natausha M. Horton, Cohen Law Group. VERIZON PENNSYLVANIA LLC & VERIZON COMMUNICATIONS INC., Defendants, represented by Michael F. Eichert -- michael.eichert@obermayer.com -- Obermayer Rebmann Maxwell & Hippel LLP, pro hac vice, Andrew J. Horowitz -- andrew.horowitz@obermayer.com -- Obermayer Rebmann Maxwell & Hippel, LLP & Bruce C. Fox -- bruce.fox@obermayer.com -- Obermayer Rebmann Maxwell & Hippel LLP. VITAL PHARMACEUTICALS: Madison Files Product False Labeling Suit ---------------------------------------------------------------- KUUMBA MADISON, individually and on behalf of all others similarly situated v. VITAL PHARMACEUTICALS, INC., d/b/a VPX Sports, a Florida corporation, Case No. 3:18-cv-06300-LB (N.D. Cal., October 15, 2018), alleges that the Defendant's deceptive marketing and labeling of certain "BANG" products violate the Food, Drug, and Cosmetic Act. Defendant formulates, manufactures, advertises and sells the popular "BANG" branded caffeinated and non-caffeinated energy drink products throughout the United States, including in California. The Plaintiff contends that the Defendant markets its Products in a systematically misleading manner, by misrepresenting that its Products contain ingredients that they do not in fact contain, and that the ingredients are potent, when in fact they are present, if at all, in doses so low as to be ineffective. Vital Pharmaceuticals, Inc., doing business as VPX Sports, is a Florida corporation with its principal place of business located in Weston, Florida.[BN] The Plaintiff is represented by: Jonathan Shub, Esq. Kevin Laukaitis, Esq. KOHN, SWIFT & GRAF, P.C. 1600 Market Street, Suite 2500 Philadelphia, PA 19103 Telephone: (215) 238-1700 E-mail: jshub@kohnswift.com klaukaitis@kohnswift.com - and - Nick Suciu III, Esq. BARBAT, MANSOUR & SUCIU PLLC 1644 Bracken Rd. Bloomfield Hills, MI 48302 Telephone: (313) 303-3472 E-mail: nicksuciu@bmslawyers.com - and - Gregory F. Coleman, Esq. GREG COLEMAN LAW PC First Tennessee Plaza 800 S. Gay Street, Suite 1100 Knoxville, TN 37929 Telephone: (865) 247-0080 E-mail: greg@gregcolemanlaw.com WALMART INC: Reaches $65MM Settlement With Cashiers Over Seating ---------------------------------------------------------------- Thomas Barrabi, writing for Fox Business, reports that Walmart reached a preliminary agreement to pay $65 million to settle a class-action lawsuit from roughly 100,000 California-based cashiers who accused the retail giant of failing to provide seating during their shifts, a company official confirmed on October 12. Originally filed in 2009, the suit alleged that Walmart violated state law by failing to provide the seats. Walmart argued seats were not a reasonable accommodation because cashiers' responsibilities often require movement, such as scanning and bagging items. "Both sides are pleased to have reached a proposed resolution," a Walmart spokesman said, noting that the terms were still subject to approval by a federal judge. Reuters was first to report the proposed settlement. The case had been scheduled to go to trial later this year. Walmart allows cashiers with medical conditions to sit on stools during their shifts, Reuters reported. Store managers can also grant permission for seating. [GN] WE BEGG TO DIFFER: Failed to Pay Minimum Wage, Hunt et al Say ------------------------------------------------------------- Nicole Wasilishin and Felicia Hunt, individually, and on behalf of all others similarly situated, the Plaintiffs, v. We Begg to Differ LLC, an Arizona Limited Liability Company, We Begg to Differ DC Ranch LLC, an Arizona Limited Liability Company, We Begg to Differ Mercado LLC, an Arizona Limited Liability Company, We Begg to Differ Watermark LLC, an Arizona Limited Liability Company, and Prokopios Verros and Jane Doe Verros,a married couple, Case 2:18-cv-03328-SMM (D. Ariz., Oct. 17. 2018), alleges that Defendants unlawfully failed to pay minimum wage in violation of the Fair Labor Standards Act. According to the complaint, the Plaintiffs bring this action on behalf of themselves and all similarly-situated current and former servers and bartenders of Defendants who were compensated at a rate of less than the applicable Arizona and federal minimum wage on account of receiving tips in a given workweek.[BN] Attorneys for Plaintiffs: Clifford P. Bendau, II, Esq. Christopher J. Bendau, Esq. BENDAU & BENDAU PLLC P.O. Box 97066 Phoenix, AZ 85060 Telephone: (480) 382-5176 Facsimile: (480) 304-3805 E-mail: cliffordbendau@bendaulaw.com chris@bendaulaw.com WRF SERVICES: Jackson Suit to Recover Unpaid Overtime Pay --------------------------------------------------------- Nakia Jackson, individually and on behalf of all others similarly situated, v. WRF Services, Inc., Defendant, Case No. 18-cv-00528, (E.D. Tex., October 5, 2018) seeks monetary damages, liquidated damages, prejudgment interest, costs, including reasonable attorneys' fees as a result of failure to pay lawful overtime compensation for hours worked in excess of forty hours per week under the Fair Labor Standards Act and the Arkansas Minimum Wage Act. WRF Services, Inc., does business as Buteo Enterprises and engages in oil and gas field services. Jackson worked for WRF as an hourly-paid driver. He claims to have regularly worked in excess of forty hours per week without overtime pay. [BN] Plaintiff is represented by: Josh Sanford, Esq. SANFORD LAW FIRM, PLLC One Financial Center 650 S. Shackleford Road, Suite 411 Little Rock, AR 72211 Telephone: (501) 221-0088 Facsimile: (888) 787-2040 Email: josh@sanfordlawfirm.com YAKULT USA: Court Nixes Torrent Class Certification Denial Appeal ----------------------------------------------------------------- In the case, NICOLAS TORRENT, on Behalf of Himself and All Others Similarly Situated, Plaintiff-Appellant, v. YAKULT U.S.A., INC., Defendant-Appellee, Case No. 16-56338 (9th Cir.), the U.S. Court of Appeals for the Ninth Circuit granted Yakult's motion to dimiss Torrent's appeal from the district court's orders denying his motions for class certification and reconsideration. Torrent brought a putative class action against Yakult, claiming false advertising under California state law based on Yakult's alleged misrepresentations regarding its probiotic yogurt beverage. The district court denied Torrent's motions for class certification and reconsideration and, later, granted his motion to voluntarily dismiss the operative complaint with prejudice. Torrent appealed, seeking review of the district court's orders denying certification and reconsideration. Yakult moves to dismiss the appeal. Yakult argues that the Court lack appellate jurisdiction in light of Microsoft Corp. v. Baker, which held that appellate courts lack jurisdiction to review orders denying class certification after the named plaintiffs have voluntarily dismissed their individual claims with prejudice. Judge, the Court agrees, finding no meaningful distinction between the voluntary dismissal and the tactic rejected in Baker. Accordingly, it granted Yakult's motion. The Court notes that dismissal of the appeal does not necessarily end the litigation. When Torrent sought to voluntarily dismiss the case, the law of the circuit was that a plaintiff could secure an appealable order by that means. Baker was pending in the Supreme Court at that time, but had not yet been decided. Under appropriate circumstances, a district court may grant relief from a voluntary dismissal under Federal Rule of Civil Procedure 60(b)(6) based on an intervening change in the law. Torrent sought a voluntary dismissal specifically to pursue an appeal, thus negating any claim that setting aside the dismissal would disturb the parties' reliance interest in the finality of the case. Furthermore, he is a member of a limited set of the Plaintiffs whose appeals were pending when Baker was decided. Granting relief to such Plaintiffs would not indefinitely render preexisting judgments subject to potential challenge. Finally, there is an intimately close connection between the case and Baker. Torrent relied on circuit authority clearly approving his chosen means of pursuing an appeal. Baker directly abrogated that authority. Considerations such as these led one district judge to vacate a pre-Baker voluntary dismissal under Rule 60(b)(6). A full-text copy of the Court's Sept. 28, 2018 Memorandum is available at https://is.gd/ftGn0n from Leagle.com. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2018. All rights reserved. ISSN 1525-2272. 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