/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/181113.mbx C L A S S A C T I O N R E P O R T E R Tuesday, November 13, 2018, Vol. 20, No. 227 Headlines 60-10 BAKERY: Underpays Catering Staff, Capir Suit Alleges A/R RETAIL: Violates Disabilities Act, Nixon Suit Says ABBVIE INC: Levi & Korsinsky Files Class Action ACCESS WITH SUCCESS: Theodore Files ADA Suit in Massachusetts ACCOUNTABLE HEALTHCARE: Faces Juarez Suit in N.D. California ADECCO USA: Mo. App. Partly Affirms Campbell FCRA Suit Dismissal ALO LLC: Violates ADA, Crosson Suit Alleges AMERICAN AIRLINES: Court Strikes Class Claims in Huddleston Suit AMERICAN AUTO CARE: Hood Files TCPA Suit in Colorado AMERICAN EXPRESS: Denial of Rowsell Class Certification Flipped AMERICAN HONDA: Pretrial Events Sched in Aberin Suit Approved BAD BOY INC: Everetts Sues Over Unpaid Overtime Wages BLACKLAPEL CUSTOM: Fischler Files ADA Suit in E.D. New York C R BUNS INC: Fails to Pay Proper OT, McCoy Suit Alleges C.C. FILSON: Nixon Files ADA Suit in E.D. New York CALIFORNIA: Polk Files Class Action v. State Controller CAMPBELL SOUP: Bankalter Files Suit Over Share Price Drop CAPITOL HILL PUBLISHING: Sullivan Files ADA Suit in New York CECELIA WATER: La. App. Affirms Class Certification CHEMOURS COMPANY: Faces PFAS Class Action in Ohio Federal Court CHEMOURS COMPANY: Faces PFOS Class Action in N.J. Federal Court CNG RESTAURANTS: Alford Sues Over Unpaid Minimum, Overtime Wages COINBASE: Judge Tosses Insider Trading Class Action COMMONWEALTH FINANCIAL: Solis Files Class Suit Under FDCPA CONTRACT CALLERS: Bailey Suit Asserts FDCPA Violation CORECIVIC: Court Certifies Class of Diabetic Inmates in Dodson CORECIVIC: Dismissal Bid in Dodson Partly Granted COTY INC: Court Dismisses B. Franks Class Action Complaint CRITERION WORLDWIDE: Fenton Seeks Over Unpaid Overtime, Min. Wages CROCKETT & JONES: Nixon Suit Asserts ADA Breach DAIRYAMERICA INC: New Escrow Agent Established in Carlin Suit DOUGH JOE LLC: Underpays Kitchen Staffs, Espinoza and Sucup Say EQUIFAX INC: Red Cliff Band Files FCRA Suit in Wisconsin EVERYDAY BEAUTY: Court Allows 2nd Amended Yang FLSA Suit FAMILY FIRST LIFE: Albrecht Files Suit Over Unwanted Calls FARMERS UNION: Iowa Residents Mull Class Action Over Odors FINANCIAL INDEMNITY: Protective Order Bid in Bhasker Partly OK'd FLOWERS BAKING: Underpays Sales Managers, Button Suit Alleges FORD MOTOR: Must Face SUV Carbon Monoxide Class Action FORSTER & GARBUS: Court Dismisses Rueda Suit Without Prejudice FOUNDRY THEATRE: Faces Dominguez ADA Class Action in NY GODIVA CHOCOLATIER: Final Approval of Muransky Deal Affirmed GOOGLE LLC: Can Compel Arbitration in Trudeau Suit GOOGLE LLC: High Court to Take Hard Look at Cypres Deals GRAY TELEVISION: John O'Neil Suit Moved to N.D. Illinois GRENDENE NEW YORK: Olsen Files Suit Alleging ADA Breach HARVEY WEINSTEIN: Moves to Pause Canosa Sexual Harassment Case HEALTHRIGHT LLC: Nelson Files Labor Class Action in Florida HEALTHSOUTH BAKERSFIELD: Mortimer Files Suit in Cal. Super. Ct. HOUSTON, TX: Attorneys Look for More Flood Victims for Class-Action IXYS CORP: Sanchez Securities Suit Dismissed with Leave to Amend KEHE DISTRIBUTORS: Settlement in Russell Suit Has Final Approval KENYA POWER: Consumers Angered Over Out of Court Settlement LANDRY TREBBI: Honeywell Files ADA Suit in S.D. Florida LG ELECTRONICS: Acosta Sues Over Defective Washing Machines MACY'S INC: Court Narrows Claims in Hawes Suit MCCARTHY BURGESS: Sued Over Deceptive Collection Practices MGT CAPITAL: Levi & Korsinsky Files Class Action MISSOURI: Juvenile Parole Process Unconstitutional, Court Says MONEYMUTUAL LLC: Bid to Dismiss 2nd Amended Rilley Suit Denied NANO: Judge Tosses Crypto Investor's Class Action NEW YORK, NY: M.F. Files ADA Suit v. NYCDOE NEW YORK: DOE Faces Class Action Over Bullying Problems OCCIDENTAL PETROLEUM: Bid to File Cox Deal Under Seal Denied PAY-O-MATIC: Faces Nixon ADA Class Suit in NY PIZZA HUT: Can Compel Arbitration in Hobon FLSA Suit PLAZA ATHENEE: Dominguez Files ADA Suit in New York PRET A MANGER: Agrees to Pay $1MM to Shortchanged US Workers PROVIDE COMMERCE: Attys' Fees Award in Easysaver Suit Vacated PURDUE PHARMA: Reynolds Files RICO Class Action in Oregon RELIQ HEALTH: Rosen Law Firm Mulls Investors Class Action REYNOLDS AND REYNOLDS: Settles Antitrust Class Action for $29.5MM SATURDAYS SURF: Olsen Files ADA Suit in New York SATYA JEWELRY: Violates Disabilities Act, Nixon Suit Asserts SCANA: Can Afford to Compensate Ratepayers Over Failed Project SCANA: May Opt for Bankruptcy Amid Nuclear Meltdown Class Actions SONIC CORP: Federman Files Securities Suit Over Sonic Merger SOUTH FLORIDA INSTITUTE: Gomez Files Suit Under TCPA STEINHOFF: Law Firms Launch Investors Class Action STITCH FIX: Levi & Korsinsky Files Class Action SUGARFINA INC: Nixon Files ADA Suit in New York TASCHEN AMERICA: Dominguez Sues Book Publisher for ADA Breach TECHNOGYM USA: Dominguez Files Suit Asserting ADA Violation THURSTON COUNTY, WA: SSOSA Evaluation Ruling Reversed TIE BAR: Fischler Files ADA Suit in New York TRANS-INDIA PRODUCTS: Faces Orlowski Class Suit in Cal. Super. Ct. TRANSAM LEASING: Court Dismisses Fox Suit with Prejudice TREASURE ISLAND: Faces Class-Action From Non-Unionized Workers TREASURE ISLAND: TCPA Suit Challenges Use of A.I. TRUMAKER INC: Andrews Files ADA Suit in New York UNITED STATES: ICE Ordered to Unseal Iraqi Detainees' Documents UNIVERSITY OF SOUTHERN: 93 Additional Women File Sex Abuse Suits V.F. JEANSWEAR: Faces Fischler ADA Class Action VIP KIDZ: Castro Sues Over Unpaid Overtime Wages VOLKSWAGEN: Quinn Emanuel Files Class Action Over Airbags WELLS FARGO: Faces Class Action in San Francisco Over Robocalls WILLIAMS-SONOMA INC: Violates Disabilities Act, Nixon Suit Asserts YNAP CORPORATION: Violates ADA, Dominguez Suit Says ZILLOW GROUP: Court Grants Bid to Dismiss Securities Suit ZIMMER BIOMET: Judge Dismisses Securities Class Action ********* 60-10 BAKERY: Underpays Catering Staff, Capir Suit Alleges ---------------------------------------------------------- CELSO TECUN CAPIR, individually and on behalf of all others similarly situated, Plaintiff v. 60-10 BAKERY INC. d/b/a TOST CAFE, and SUMNDER SINGH, Defendants, Case No. CV18-5746 (E.D.N.Y., Oct. 15, 2018) is an action against the Defendants for unpaid regular hours, overtime hours, minimum wages, wages for missed meal and rest periods. Mr. Capir was employed by the Defendants as catering staff from January 2015 to May 2018. 60-10 Bakery Inc. d/b/a Tost Cafe is a corporation organized under the laws of the State of New York. The Company is engaged in catering food. [BN] The Plaintiff is represented by: Roman Avshalumov, Esq. HELEN F. DALTON & ASSOCIATES, P.C. 69-12 Austin Street Forest Hills, NY 11375 Telephone: (718) 263-9591 A/R RETAIL: Violates Disabilities Act, Nixon Suit Says ------------------------------------------------------- A class action lawsuit has been filed against A/R Retail, LLC. The case is styled as Donald Nixon on behalf of himself and all others similarly situated, Plaintiff v. A/R Retail, LLC, Defendant, Case No. 1:18-cv-06133 (E.D. N.Y., Nov. 1, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. A/R Retail LLC is a privately held company in New York, NY, categorized under Shopping Centers and Malls.[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 ABBVIE INC: Levi & Korsinsky Files Class Action ----------------------------------------------- Levi & Korsinsky, LLP disclosed that class action lawsuits have commenced on behalf of shareholders of AbbVie Inc. Shareholders interested in serving as lead plaintiff have until the deadlines listed to petition the court and further details about the cases can be found at the links provided. There is no cost or obligation to you. AbbVie Inc. (NYSE: ABBV) Class Period: October 25, 2013 - September 18, 2018 Lead Plaintiff Deadline: November 20, 2018 Join the action: https://www.zlk.com/pslra-1/abbvie-inc-loss-form?wire=3 The lawsuit alleges: AbbVie Inc. made materially false and/or misleading statements throughout the class period and/or failed to disclose that: (1) AbbVie's strategy to increase the sales growth of its blockbuster drug, HUMIRA, relied in part upon illegal kickbacks and unlawful sales and marketing tactics; (2) such practices would foreseeably lead to heightened scrutiny by State governments and agencies; and (3) as a result, Defendants' public statements were materially false and misleading at all relevant times. To learn more about the AbbVie Inc. class action contact jlevi@levikorsinsky.com. You have until the lead plaintiff deadlines to request the court appoint you as lead plaintiff. Your ability to share in any recovery doesn't require that you serve as a lead plaintiff. Joseph E. Levi, Esq. Levi & Korsinsky, LLP 55 Broadway, 10th Floor New York, NY 10006 Telephone: (212) 363-7500 Toll Free: (877) 363-5972 Fax: (212) 363-7171 Email: jlevi@levikorsinsky.com [GN] ACCESS WITH SUCCESS: Theodore Files ADA Suit in Massachusetts ------------------------------------------------------------- A class action lawsuit has been filed against Uber Technologies, Inc. The case is captioned as Dino N. Theodore, and Access With Success, Inc., individually and on behalf of all others similarly situated, Plaintiffs v. Uber Technologies, Inc., Defendant, Case No. 1:18-cv-12147-DPW (D. Mass., Oct. 15, 2018). The class action lawsuit alleges violation of the Americans with Disabilities Act. The case is assigned to Judge Douglas P. Woodlock. Uber Technologies, Inc. develops, markets, and operates a ridesharing mobile application which allows consumers to submit a trip request, which is routed to crowd-sourced partner drivers. The company was formerly known as UberCab Inc. and changed its name to Uber Technologies, Inc. in October 2010. Uber Technologies, Inc. was founded in 2008 and is based in San Francisco, California, with an engineering center in Bengaluru, India and a regional office in Singapore. [BN] The Plaintiff is represented by: Nicholas S. Guerrera, Esq. SHAHEEN GUERRERA & O'LEARY, LLC 820A Turnpike Street North Andover, MA 01845 Telephone: (978) 689-0800 Facsimile: (978) 794-0890 E-mail: nguerrera@sgolawoffice.com ACCOUNTABLE HEALTHCARE: Faces Juarez Suit in N.D. California ------------------------------------------------------------ An employment-related class action lawsuit has been filed against Accountable Healthcare Staffing, Inc. The case is captioned as SARAH REYNOSA-JUAREZ, individually and on behalf of all others similarly situated, Plaintiff v. ACCOUNTABLE HEALTHCARE STAFFING, INC.; and ACCOUNTABLE HEALTHCARE HOLDINGS CORP., Defendants, Case No. 5:18-cv-06302-NC (N.D. Cal., Oct. 15, 2018). The case is assigned to Nathanael M. Cousins. Accountable Healthcare Staffing, Inc. provides healthcare staffing services. The company offers personnel and resources to hospitals and other healthcare facilities. The company was founded in 1999 and is based in Boca Raton, Florida. As of July 25, 2012, Accountable Healthcare Staffing, Inc. operates as a subsidiary of Accountable Healthcare Holdings Corp. [BN] The Plaintiff is represented by: Nathan Bunnell Piller, Esq. Joshua Geoffrey Konecky, Esq. Schneider Wallace Cottrell Konecky Wotkyns LLP 2000 Emeryville Street, Suite 1400 Emeryville, CA 94608 Telephone: (415) 421-7100 Facsimile: (415) 421-7105 E-mail: npiller@schneiderwallace.com jkonecky@schneiderwallace.com ADECCO USA: Mo. App. Partly Affirms Campbell FCRA Suit Dismissal ---------------------------------------------------------------- In the case, HERNANDEZ CAMPBELL, Individually and on Behalf of All Others, Appellants, v. ADECCO USA, INC., Respondent, Case No. WD81324 (Mo. App.), Judge Lisa White Hardwick of the Court of Appeals of Missouri for the Western District affirmed in part and reversed in part the circuit court's judgment dismissing Campbell's putative class action lawsuit against Adecco for violations of the Fair Credit Reporting Act ("FCRA"). Campbell applied to work for Adecco, a staffing company with an office in Missouri, in August or September 2015. As part of his application, he electronically signed a document titled "Background Authorization and Release" on Sept. 28, 2015. In November 2015, Campbell received an interview with Adecco. Adecco hired him and placed him at Challenge MFG as a forklift driver and weld operator. Adecco ordered a consumer report on Campbell from First Advantage. First Advantage completed the report in late December 2015. On Dec. 24, 2015, Adecco informed Campbell that he should not report back to work at Challenge MFG and was no longer eligible for employment through Adecco due to information contained in the report from First Advantage. In January 2016, Campbell filed a putative class action complaint in the Circuit Court of Cole County alleging that Adecco violated the FCRA with regard to the consumer report that it obtained from First Advantage. In his complaint, Campbell alleged that Adecco did not comply with the FCRA requirements for procuring the consumer report and terminating his employment based upon that report. Adecco subsequently removed the case to the U.S. District Court for the Western District of Missouri. While the case was pending before the federal court, Campbell filed an amended complaint in December 2016. In his amended complaint, Campbell asserted three types of claims on behalf of himself and his proposed classes of the Plaintiffs: (1) Adverse Action; (2) Disclosure; and (3) Authorization. In his Adverse Action claim, Campbell alleged that Adecco violated the FCRA by failing to provide him a copy of the consumer report that was used to take adverse action against him; failing to provide him a copy of the FCRA-mandated summary of rights; and failing to provide him a reasonable time to address the consumer report and/or any inaccuracies within the report. He asserted that these FCRA violations resulted in an informational injury because he was denied the opportunity to review and discuss the contents of the consumer report before he was terminated, plus lost wages and lost opportunity. For all of his claims, Campbell requested statutory damages, punitive damages, attorney's fees, and costs. Adecco moved to dismiss Campbell's amended complaint in the federal court. Adecco asserted, among other things, that the amended complaint showed that Campbell had not suffered any concrete injury and, therefore, lacked Article III standing sufficient to establish subject matter jurisdiction. In response, Campbell asserted that his amended complaint sufficiently alleged his injuries. Campbell also filed a motion to remand the case back to the Circuit Court of Cole County on the basis that the parties agreed that the federal court lacked subject matter jurisdiction. The federal court determined that Campbell failed to allege a concrete injury sufficient to establish standing. Specifically, with regard to his Adverse Action claim, the federal court concluded that any alleged loss he suffered could not have resulted from Adecco's failure to give him a reasonable amount of time to address what was revealed in his consumer report. As for the informational injury asserted in his Disclosure and Authorization claims, the federal court found that Campbell alleged only that Adecco's form was not in the format required by statute, and he did not allege that the form failed to contain the information required by the FCRA. W ith regard to the invasion of privacy injury asserted in his Disclosure and Authorization claims, the federal court found that Campbell had failed to allege that he or a reasonable person would have been confused by the extraneous information in the consent form or that he would not have signed the form had he known that some information in it was inaccurate. Because Campbell alleged only "bare procedural violations" and not a concrete injury sufficient to establish standing, the court found that it lacked subject matter jurisdiction over his claims. The federal court remanded the case back to the Circuit Court of Cole County. On remand, Adecco moved to dismiss Campbell's amended complaint for lack of standing and for failure to state a claim upon which relief could be granted. Following a hearing, the circuit court granted Adecco's motion and dismissed the amended complaint with prejudice. Campbell appeals. In his sole point on appeal, Campbell contends the circuit court erred in dismissing his amended complaint based on lack of standing. Although Campbell contends that his allegations were sufficient to establish a concrete injury, Judge Hardwick disagrees. She finds that Campbell failed to identify what the alleged errors in the consumer report were or how those alleged errors caused him harm or presented a material risk of causing harm. Moreover, Campbell's assertion that, if he had been provided a copy of the consumer report and the summary of rights and had been able to address the alleged errors with Adecco, he may have been able to maintain his employment and/or maintain his ability to work for Adecco, was purely conjectural and hypothetical. Neither Campbell's vague assertion that the consumer report was not maximally accurate nor his speculative contention that, absent the FCRA violations, he "may have been able to maintain his employment" alleged an injury that actually existed. Therefore, she finds that Campbell failed to allege a concrete injury sufficient to confer standing on his Adverse Action claim. The court properly dismissed the claim. The Judge also finds that Campbell has sufficiently alleged a concrete injury. Campbell did not simply complain that the disclosure was not in the statutorily-required format; rather, he contended that Adecco's failure to follow the required format by including extraneous, misleading, and inaccurate information confused him and would confuse a reasonable person such that no reasonable person would believe that the document was a disclosure that a consumer report would be procured. The Judge finds that Campbell's contentions that he was confused by the disclosure, that no reasonable person would believe it was a disclosure, and that he never authorized Adecco to obtain a consumer report on him identified actual harms from Adecco's alleged FCRA violations. The harms were that, as a result of the FCRA violations, the disclosure failed to inform Campbell that Adecco intended to obtain a consumer report on him, which would constitute an informational injury, and Adecco procured the consumer report without his authorization, which would constitute an invasion of privacy injury. Campbell alleged concrete injuries sufficient to satisfy Missouri's standing requirements on his Disclosure and Authorization claims. Therefore, the circuit court erred in dismissing those claims. Accordingly, Judge Hardwick affirmed the circuit court's judgment dismissing Campbell's Adverse Action claim for lack of standing. She reversed the judgment dismissing Campbell's Disclosure and Authorization claims and remanded. A full-text copy of the Court's Oct. 2, 2018 Order is available at https://is.gd/55tpJN from Leagle.com. Charles J. Brown -- cbrown@gsbblaw.com -- Jayson A. Watkins, Gower, for appellants. Frederick H. Riesmeyer, II -- friesmeyer@sb-kc.com -- Benjamin A. Reed -- breed@sgrlaw.com -- Kansas City for respondent. ALO LLC: Violates ADA, Crosson Suit Alleges ------------------------------------------- A class action lawsuit has been filed against ALO, LLC. The case is styled as Aretha Crosson individually and as the representative of a class of similarly situated persons, Plaintiff v. ALO, LLC doing business as: Alo Yoga, Defendant, Case No. 1:18-cv-06275 (E.D. N.Y., Nov. 5, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. Alo Yoga manufactures and sells yoga wear & accessories for yoga and working out that combines luxury and performance in each collection.[BN] The Plaintiff is represented by: Dan Shaked, Esq. Shaked Law Group, P.C. 44 Court Street, Suite 1217 Brooklyn, NY 11217 Phone: (917) 373-9128 Fax: (718) 504-7555 Email: shakedlawgroup@gmail.com AMERICAN AIRLINES: Court Strikes Class Claims in Huddleston Suit ---------------------------------------------------------------- In the case, LUCAS HUDDLESTON, on behalf of himself and all others similarly situated, Plaintiff, v. AMERICAN AIRLINES, INC., Defendant, Case No. 16-cv-09100 (N.D. Ill.), Judge Abdrea R. Wood of the U.S. District Court for the Northern District of Illinois, Eastern Division, granted American Airlines' motion to strike Huddleston's class allegations. On January 16, 2016, Plaintiff Huddleston arrived at the Hong Kong airport and attempted to check in for his American Airlines flight to Dallas, Texas 50 minutes before its scheduled departure time. To his dismay, he was told that his reservation had been cancelled because he was too late. According to Huddleston, although American Airlines includes in its contract with customers a requirement that international passengers be at their departure gate 30 minutes before takeoff or else their reservation will be cancelled, there is no similar rule concerning the time passengers must check in. Nonetheless, American Airlines enforces a policy under which it cancels the reservations of passengers who fail to check in 60 minutes before flights departing from an international airport to a domestic airport or 45 minutes before flights departing from a domestic airport to an international airport. Huddleston believes that American Airlines' enforcement of this policy breaches its contract with its passengers. Thus, he has filed the present lawsuit seeking to represent a putative class of passengers who have had their reservations cancelled as a result of this policy. The class he seeks to represent includes all persons in the United States who bought tickets on flights marketed and operated by American Airlines, traveled without checked baggage, and were refused travel because they either: (1) attempted to check in for a flight departing from an international airport and arriving at a U.S. airport more than thirty minutes but within sixty minutes before the scheduled departure time; or (2) attempted to check in for a flight departing from a U.S. airport and arriving at an international airport more than thirty minutes but within forty-five minutes before the scheduled departure time. According to Huddleston, American Airlines breached its contract with him and the class members by refusing to allow them to travel on their ticketed flights based on "arbitrary" deadlines that are not specified in the contract. That breach caused the class members to suffer damages in the form of potential additional fees associated with rescheduling flights, forfeiture of benefits for which passengers already paid, and out-of-pocket expenses resulting from being forced to travel on later flights. American Airlines now moves to strike Huddleston's class allegations. It asserts that because of the unique circumstances surrounding the cancellation of Huddleston's reservation, he fails to meet the typicality requirement of Rule 23(a)(3). Furthermore, American Airlines argues that the class allegations should be stricken because Huddleston cannot satisfy the commonality requirement of Rule 23(a)(2) and the predominance requirement of Rule 23(b)(3). At the pleading stage, Judge Wood is unable to conclude that Huddleston would not meet the typicality requirement. A class discovery is needed to test American Airlines' claim that such screening takes no less than 30 minutes. If this claim proves true, then Huddleston would not be able to satisfy typicality because that additional 30 minutes means that if he checked in at any time after the 60-minute cutoff, he would definitely not reach his departure gate in time. Yet, it may also be the case that the additional screening might entail only a delay of an additional minute or two. In that case, this additional circumstance would not be so unique as to render him atypical as a class representative. For this reason, the Judge cannot strike class allegations at this stage due to failure of typicality. American Airlines also argues that the class allegations should be stricken because there would need to be countless individualized inquiries to resolve each class member's claim. The Judge finds it clear from the pleadings that determining American Airlines' liability to the proposed class members would require individualized factual inquiries as to each member. Thus, Huddleston's proposed class does not meet the predominance requirement of Rule 23(b)(3). For that reason, his class allegations must be stricken. For the foregoing reasons, Judge Wood granted American Airlines' motion to strike class allegations. A full-text copy of the Court's Oct. 2, 2018 Memorandum Opinion and Order is available at https://is.gd/kiOlS9 from Leagle.com. Lucas Huddleston, on behalf of himself and all others similarly situated, Plaintiff, represented by Benjamin Gordon Edelman -- ben@benedelman.org -- Law Offices of Benjamin Edelman, pro hac vice, James L. Thompson -- jthompson@lynchthompson.com -- Lynch Thompson, LLP, John E. Sindoni -- jsindoni@bonizack.com -- Boni & Zack LLC, pro hac vice, Joshua David Snyder -- jsnyder@bonizack.com -- Boni, Zack & Snyder LLC, pro hac vice, Michael J. Boni -- mboni@bonizack.com -- Boni, Zack & Snyder LLC, pro hac vice & Oren S. Giskan -- ogiskan@gslawny.com -- Giskan Solotaroff & Anderson, LLP. American Airlines, Inc., Defendant, represented by Livia McCammon Kiser -- lkiser@kslaw.com -- King and Spalding LLP, Mark Bruce Blocker, Sidley Austin LLP & Jessica Johnson Fishfeld -- JFISHFELD@SIDLEY.COM -- Sidley Austin Llp. AMERICAN AUTO CARE: Hood Files TCPA Suit in Colorado ---------------------------------------------------- A class action lawsuit has been filed against American Auto Care, LLC, et al. The case is styled as Alexander Hood on behalf of himself and all similarly situated persons, Plaintiff v. American Auto Care, LLC a Florida limited liability company, Beacon Financial Solutions, LLC a Florida limited liability company, Jessie Britt individual, Kylie Britt individual, David Glenwinkel individual, Ramin Amirebrahimi individual, Defendants, Case No. 1:18-cv-02807-SKC (D. Colo., Nov. 2, 2018). The Plaintiff filed the case under the Telephone Consumer Protection Act. American Auto Care LLC is a privately held company in North Andover, MA and is a Single Location business, categorized under Car Repair and Services. Beacon Financial Planning Services, LLC, serves clients in several states. It offers comprehensive financial planning and consulting and a full range of services and products.[BN] The Plaintiff is represented by: Dustin Thomas Lujan, Esq. 1603 Capitol Avenue, Suite 310 A559 Cheyenne, WY 82001 Phone: (970) 999-4225 Email: wyoadvocate@gmail.com AMERICAN EXPRESS: Denial of Rowsell Class Certification Flipped --------------------------------------------------------------- In the case, C.D. ROWSELL et al., Cross-complainants and Appellants, v. AMERICAN EXPRESS BANK, FSB et al., Cross-defendants and Respondents, Case No. A142306 (Cal. App.), Judge Timothy A. Reardon of the Court of Appeals of California for the First District, Division Four, reversed the trial court's order denying the Appellants' motion for class certification. In this cross-action arising out of an underlying collection suit, Cross-complainants and Appellants Rowsell and Bosonda International Ltd. (Bosonda) seek a declaratory judgment on behalf of themselves and a putative class of American Express credit and charge cardholders that the arbitration provisions in their cardmember agreements are unconscionable and unenforceable. Cross-defendant and Respondent American Express Bank, FSB ("AEFSB") is a federally chartered savings bank engaged in the business of, among other things, issuing American Express credit cards and charge cards. The Appellants are former cardmembers on three AEFSB business credit accounts that were opened on various dates in 2006 and 2007. At the time the accounts were opened, Bosonda was incorporated in Delaware and doing business in California, with its principal place of business in China. Rowsell is Bosonda's founder, president, and chairman of the board. The Appellants failed to make timely and sufficient payments on their accounts, and AEFSB cancelled the accounts as of June 2009. The total current balance due on the accounts is $84,423.18. In July 2010, AEFSB filed a collection action against Rowsell to recover the balance owed on one of the accounts. In response, Rowsell filed a motion to compel arbitration seeking, counterintuitively, a ruling that the arbitration provision was unconscionable. After AEFSB voluntarily dismissed the collection action, Rowsell filed a demand for arbitration with the American Arbitration Association ("AAA") seeking to arbitrate the issue of whether the arbitration provision in the cardmember agreement was unconscionable. AAA declined Rowsell's demand for arbitration, and Rowsell later filed a demand for arbitration with JAMS. In December 2010, AEFSB filed the underlying collection action against Rowsell. Rowsell filed a putative class action cross-complaint against AEFSB and two other American Express card issuers, American Express Centurion Bank ("AECB") and American Express Travel Related Services Company, Inc. ("AETRSC"), alleging the arbitration provision in the cardmember agreement was unconscionable and unlawful under the Unfair Competition Law, and seeking a declaratory judgment to that effect. Rowsell again moved to compel arbitration, but the motion was stricken as a sham. After a demurrer to the cross-complaint was partially sustained with leave to amend, the Appellants filed the operative first amended cross-complaint against AEFSB, AECB, AETRSC, and American Express Co. They alleged the arbitration provisions drafted and inserted by respondents into cardmember agreements and gift card terms and services agreements were unconscionable and in violation of the UCL. The first amended cross-complaint contained seven causes of action, six under the UCL and the seventh for declaratory judgment. In October 2012, during the pendency of the litigation, the Respondents sent some of their cardmembers a change-in-terms notice informing them that effective Jan. 1, 2013, the arbitration provision in the cardmember agreement would be replaced with a new section entitled "Claims Resolution" (modified arbitration provision). Meanwhile, the Respondents prevailed in court on several challenges to the Appellants' causes of action. The trial court sustained without leave to amend their demurrer to the UCL claims pertaining to the gift card allegations (second, fourth, and sixth causes of action). In May 2013, the trial court granted the Respondents' motion for summary adjudication of the remaining UCL claims (first, third, and fifth causes of action) on the grounds that the Appellants lacked standing because they did not allege or present evidence of a nontrivial monetary loss that resulted from the alleged UCL violations. The trial court denied summary adjudication of the seventh cause of action for declaratory judgment. Thereafter, the Appellants moved for a determination of class issues on their sole surviving claim for declaratory judgment. They sought to certify the class of all persons and entities residing in California and having a California billing address who/which, according to the records of American Express Co. (including its subsidiaries, affiliates, or licensees), have paid or are paying annual fees to American Express for American Express charge cards and/or credit cards bearing the American Express name or the American Express trade or service mark or logo issued by American Express pursuant to a card agreement containing an arbitration provision during all or any part of the period covered by the applicable limitations period and pendency of the action. On May 12, 2014, the trial court issued a detailed order denying the motion for class certification. It denied class certification on the grounds that (1) Rowsell was not an adequate representative and did not have claims typical of the putative class, (2) individualized issues would predominate regarding whether the arbitration provisions were procedurally unconscionable and the requested declaratory relief was necessary or proper, and (3) a class action would not be superior to individual actions. On June 30, 2014, the Appellants filed a timely notice of appeal. Among other things, Judge Reardon feels that the trial court did not give due consideration to the allegations and theory of relief advanced by the Appellants and failed to take a broader, systemic view concentrating on the Respondents' policies and practices. To the extent the trial court implicitly rejected the Appellants' theory of an overarching dispute with respondents as not a necessary or proper basis for granting declaratory relief, it was an adjudication of the merits that was not essential to decide the class certification issues. For these reasons, the Judge finds that the trial court's decision as to the declaratory relief claim rested on improper criteria. The trial court also improperly ignored allegations of procedural unconscionability in the first amended cross-complaint and erroneously assumed that the procedural unconscionability determination would necessarily involve unalleged circumstances of contract formation for each putative class member. The Judge accordingly concludes that the court used improper criteria and made erroneous assumptions in finding that the determination of procedural unconscionability would involve predominantly individualized issues. On the record before him, the Judge finds that the proper disposition is to reverse the order and remand with instructions for the trial court to reconsider the propriety of the class certification motion in a manner consistent with the determinations expressed above, and to consider the other certification requirements that the trial court did not previously determine. He therefore reversed the order denying the Appellants' motion for class certification, and remanded the matter for further consideration consistent with his Opinion. A full-text copy of the Court's Oct. 2, 2018 Opinion is available at https://is.gd/1sDwlx from Leagle.com. AMERICAN HONDA: Pretrial Events Sched in Aberin Suit Approved ------------------------------------------------------------- In the case, LINDSAY and JEFF ABERIN (a married couple), DON AWTREY, CHARLES BURGESS, JOHN KELLY, YUN-FEI LOU, JOY MATZA, and MELISSA YEUNG, individually and on behalf of all others similarly situated, Plaintiffs, v. AMERICAN HONDA MOTOR COMPANY, INC., Defendant, Case No. 3:16-cv-04384-JST (N.D. Cal.), Judge Jon S. Tigar of the U.S. District Court for the Northern District of California approved the Parties' Schedule of Pretrial Events through Briefing Related to Plaintiffs' Motion for Class Certification. The Parties, through their respective counsel and pursuant to the direction of the Court, propose a schedule to govern the litigation through to the completion of briefing related to the Plaintiffs' Motion for Class Certification. The schedule adopts the Schedule of Pretrial Events through Decision on Plaintiffs' Motion for Class Certification which approved a schedule based on the then-undetermined date of the close of pleadings as the starting point of deadlines for the close of discovery and the subsequent briefing related to the class certification. The pleadings closed on May 28, 2018 when the Defendant filed its Answer to Plaintiffs' Third Amended Class Action Complaint. Judge Tigar approved the following pretrial events schedule: i. Close of Discovery in Advance of Class Certification: a. Close of Fact Discovery - Feb. 28, 2019 (Close of Pleadings + 9 months) b. Close of Expert Discovery in Advance of and Related to Class Certification - April 29, 2019 (Close of Fact Discovery + 2 Months). ii. Briefing Related to Plaintiffs' Motion for Class Certification: a. Motion in Support of Class Certification - May 29, 2019 (Close of Expert Discovery + 30 days). b. Opposition to Motion for Class Certification - July 15, 2019 (Motion for Class Certification + 45 days). c. Reply in Support of Class Certification - Aug. 14, 2019 (Opposition to Class Certification + 30 days). A full-text copy of the Court's Oct. 2, 2018 Stipulated Order is available at https://is.gd/kPOBtt from Leagle.com. Yun-Fei Lou, Lindsey Aberin, Don Awtrey, John Kelly & Melissa Yeung, individually and on behalf of all others similarly situated, Plaintiffs, represented by Shana E. Scarlett -- shanas@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, Catherine Gannon -- catherineg@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, pro hac vice, Christopher A. Seeger -- cseeger@seegerweiss.com -- Seeger Weiss LLP, pro hac vice, Daniel R. Leathers -- DLeathers@seegerweiss.com -- Seeger Weiss LLP, pro hac vice, David Brian Fernandes- dfernandes@baronbudd.com -- Baron & Budd, P.C., James E. Cecchi -- jcecchi@carellabyrne.com -- Carella Byrne Cecchi Olstein Brody & Agnello, P.C., James C. Shah -- jshah@sfmslaw.com -- Shepherd Finkelman Miller & Shah, LLP, Lindsey H. Taylor, Carella Byrne Cecchi Olstein Brody & Agnello, P.C., Mark Philip Pifko -- mpifko@baronbudd.com -- Baron & Budd, P.C., Roland K. Tellis -- rtellis@baronbudd.com -- Baron Budd, P.C., Scott Alan George -- sgeorge@seegerweiss.com -- Seeger Weiss LLP, pro hac vice, Stephen A. Weiss -- cseeger@seegerweiss.com -- Seeger Weiss LLP & Steve W. Berman -- steve@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, pro hac vice. Jeff Aberin, Plaintiff, represented by Catherine Gannon, Hagens Berman Sobol Shapiro LLP, Christopher A. Seeger, Seeger Weiss LLP, pro hac vice, Stephen A. Weiss, Seeger Weiss LLP & Steve W. Berman, Hagens Berman Sobol Shapiro LLP, pro hac vice. Joy Matza, Plaintiff, represented by Catherine Gannon, Hagens Berman Sobol Shapiro LLP, Christopher A. Seeger, Seeger Weiss LLP, pro hac vice, Scott Alan George , Seeger Weiss LLP, Stephen A. Weiss, Seeger Weiss LLP & Steve W. Berman, Hagens Berman Sobol Shapiro LLP, pro hac vice. Charles Burgess, individually and on behalf of all other similarly situated, Consol Plaintiff, represented by Christopher A. Seeger Seeger Weiss LLP, pro hac vice, Shana E. Scarlett, Hagens Berman Sobol Shapiro LLP, Amanda M. Steiner, Terrell Marshall Law Group PLLC, Catherine Gannon, Hagens Berman Sobol Shapiro LLP, Daniel R. Leathers, Seeger Weiss LLP, pro hac vice, David Brian Fernandes, Baron & Budd, P.C., James E. Cecchi, Carella Byrne Cecchi Olstein Brody & Agnello, P.C., James C. Shah, Shepherd Finkelman Miller & Shah, LLP, Lindsey H. Taylor, Carella Byrne Cecchi Olstein Brody & Agnello, P.C., Mark Philip Pifko, Baron & Budd, P.C., Roland K. Tellis, Baron Budd, P.C., Scott Alan George, Seeger Weiss LLP, pro hac vice, Stephen A. Weiss, Seeger Weiss LLP, Steve W. Berman, Hagens Berman Sobol Shapiro LLP, pro hac vice & Toby James Marshall, Terrell Marshall Law Group PLLC, pro hac vice. American Honda Motor Company, Inc., Defendant, represented by Livia M. Kiser -- lkiser@sidley.com -- King & Spalding LLP & Michael Brian Shortnacy -- mshortnacy@kslaw.com -- King & Spalding LLP. BAD BOY INC: Everetts Sues Over Unpaid Overtime Wages ----------------------------------------------------- Chad Everetts, individually and on behalf of all others similarly situated, Plaintiff v. Bad Boy, Inc., and Bad Boy Mowers, Inc., Defendants, Case No. 1:18-cv-00085-DPM (E.D. Ark., November 2, 2018) was filed pursuant to the Fair Labor Standards Act and the Arkansas Minimum Wage Act for declaratory judgment, monetary damages, liquidated damages, prejudgment interest, civil penalties and costs, including a reasonable attorney's fee as a result of Defendants' failure to pay Plaintiff and other hourly-paid employee's proper overtime compensation for hours worked in excess of 40 hours per week. The Defendants refused to pay Plaintiff and other hourly-paid manufacturing plant employees for all hours worked, even though Defendants were aware of all hours worked, says the complaint. Plaintiff Chad Everetts is a citizen and resident of Independence County. Plaintiff worked for Defendants as an hourly-paid manufacturing plant employee from around February of 2012 until August of 2018 at Defendants' manufacturing facility in Batesville. Defendants operate a mower manufacturing facility in Batesville, Arkansas. Defendant Bad Boy, Inc. is a domestic, for-profit corporation registered to do business in the State of Arkansas.[BN] The Plaintiff is represented by: Vanessa Kinney, Esq. Josh Sanford, Esq. SANFORD LAW FIRM, PLLC One Financial Center 650 South Shackleford, Suite 411 Little Rock, AR 72211 Phone: (501) 221-0088 Facsimile: (888) 787-2040 Email: vanessa@sanfordlawfirm.com josh@sanfordlawfirm.com BLACKLAPEL CUSTOM: Fischler Files ADA Suit in E.D. New York ----------------------------------------------------------- A class action lawsuit has been filed against Blacklapel Custom Clothiers, Inc. The case is styled as Brian Fischler individually and on behalf of all other persons similarly situated, Plaintiff v. Blacklapel Custom Clothiers, Inc., Defendant, Case No. 1:18-cv-06264 (E.D. N.Y., Nov. 4, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. Black Lapel makes custom suits and shirts for men of all shapes and sizes.[BN] The Plaintiff is represented by: Douglas Brian Lipsky, Esq. Lipsky Lowe LLP 630 Third Avenue Fifth Floor New York, NY 10017 Phone: (212) 392-4772 Fax: (212) 444-1030 Email: doug@lipskylowe.com - and - Christopher Howard Lowe, Esq. Lipsky Lowe LLP 630 Third Avenue New York, NY 10017 Phone: (212) 392-4772 Fax: (212) 444-1030 Email: chris@lipskylowe.com C R BUNS INC: Fails to Pay Proper OT, McCoy Suit Alleges -------------------------------------------------------- ROBERT MCCOY, individually and on behalf of all others similarly situated, Plaintiff v. C R BUNS, INC.; and DOES 1 to 50, inclusive, Defendants, Case No. STK-CV-VOE-2018-12898 (Cal. Super., San Joaquin Cty., Oct. 15, 2018) is an action against the Defendants for unpaid regular hours, overtime hours, minimum wages, wages for missed meal and rest periods. Mr. McCoy was employed by the Defendants as an hourly-paid, non-exempt employee. C R BUNS, INC. is a corporation organized and existing under the laws of the State of California. [BN] The Plaintiff is represented by: Darren M. Cohen, Esq. KINGSLEY & KINGSLEY, APC 16133 Ventura Blvd., Suite 1200 Encino, CA 91436 Telephone: (818) 990-8300 Facsimile: (818) 990-2903 C.C. FILSON: Nixon Files ADA Suit in E.D. New York -------------------------------------------------- A class action lawsuit has been filed against C.C. FILSON CO. The case is styled as Donald Nixon on behalf of himself and all others similarly situated, Plaintiff v. C.C. FILSON CO., Defendant, Case No. 1:18-cv-06269 (E.D. N.Y., Nov. 5, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. C.C. Filson is a Seattle, Washington based, privately owned outfitter and manufacturer of goods for outdoor enthusiasts. The company designs, manufactures, distributes and sells men's and women's outdoor clothing, accessories and luggage.[BN] The Plaintiff is represented by: Jonathan Shalom, Esq. 124-04 Metropolitan Avenue Kew Gardens, NY 11374 Phone: (718) 971-9474 Email: jshalom@jonathanshalomlaw.com CALIFORNIA: Polk Files Class Action v. State Controller ------------------------------------------------------- A civil rights class action has been filed against the State Controller of California. The case is styled as Delores Polk on behalf of herself and similarly situated, Plaintiff v. Betty Yee in her official capacity as State Controller of California, SEIU Local 2015, Defendants, Case No. 2:18-cv-02900-KJM-KJN (E.D. Cal., Nov. 1, 2018). Betty T. Yee is an American politician and member of the Democratic Party who has served as California State Controller since 2015. She previously served as a member of the California Board of Equalization from 2004 to 2015. She won the open seat for Controller in the 2014 election, with 54% of the vote.[BN] The Plaintiff is represented by: Steven R. Burlingham, Esq. Gary, Till, Burlingham & Lynch 1380 Lead Hill Blvd, Suite 200 Roseville, CA 95661 Phone: (916) 332-8122 Fax: (916) 332-8153 Email: steveb@gtblaw.com CAMPBELL SOUP: Bankalter Files Suit Over Share Price Drop --------------------------------------------------------- Michael Bankalter, individually and on behalf of all others similarly situated, Plaintiff, v. Campbell Soup Company, Denise M. Morrison, and Anthony P. DiSilvestro, Defendants, Case No. 1:18-cv-15694 (D. N.J. November 5, 2018) seeks to recover damages caused by Defendants' violations of the federal securities laws and to pursue remedies under the Securities Exchange Act of 1934. The complaint says Defendants made materially false and misleading statements regarding the Company's business, operational and compliance policies. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: (i) the Company's Campbell Fresh division was suffering from known business headwinds, negatively impacting its profitability; and (ii) as a result, the Company's public statements were materially false and misleading at all relevant times. Due to the Defendants' wrongful acts and omissions, and the precipitous decline in the market value of the Company's securities, Plaintiff and other Class members suffered significant losses and damages, says the complaint. Plaintiff acquired Campbell securities at artificially inflated prices during the Class Period and was damaged upon the revelation of the alleged corrective disclosures. Campbell is a global food company that sells soups, packaged meals, beverages, snacks, and packaged fresh foods. The Company's Campbell Fresh division includes: Bolthouse Farms fresh carrots, carrot ingredients, refrigerated beverages and refrigerated salad dressings; Garden Fresh Gourmet salsa, hummus, dips and tortilla chips; and the U.S. refrigerated soup business. Denise M. Morrison was the President and Chief Executive Officer of Campbell from the beginning of the Class Period through May 18, 2018. Anthony P. DiSilvestro is and, throughout the Class Period, was the Senior Vice President and Chief Financial Officer of Campbell.[BN] The Plaintiff is represented by: Jonathan Lindenfeld, Esq. Jeremy A. Lieberman, Esq. J. Alexander Hood II, Esq. 600 Third Avenue, 20th Floor New York, NY 10016 Phone: (212) 661-1100 Facsimile: (212) 661-8665 Email: jlindenfeld@pomlaw.com jalieberman@pomlaw.com ahood@pomlaw.com - and - Patrick V. Dahlstrom, Esq. POMERANTZ LLP 10 South La Salle Street, Suite 3505 Chicago, IL 60603 Phone: (312) 377-1181 Facsimile: (312) 377-1184 Email: pdahlstrom@pomlaw.com - and - Peretz Bronstein, Esq. BRONSTEIN, GEWIRTZ & GROSSMAN, LLC 60 East 42nd Street, Suite 4600 New York, NY 10165 Phone: (212) 697-6484 Email: peretz@bgandg.com CAPITOL HILL PUBLISHING: Sullivan Files ADA Suit in New York ------------------------------------------------------------ A class action lawsuit has been filed against Capitol Hill Publishing Corp. The case is styled as Phillip Sullivan, Jr. on behalf of himself and all others similarly situated, Plaintiff v. Capitol Hill Publishing Corp., Defendant, Case No. 1:18-cv-10243 (S.D. N.Y., Nov. 5, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. Capitol Hill Publishing Corp. publishes newspapers. The company profiles lawmakers and aides, sociology and politics, book and restaurant reviews, and inner workings of Congress. It provides opinion view news by various subjects, such as defense and homeland security, energy and environment, healthcare, finance and economy, technology, foreign policy, labor, and transportation and infrastructure.[BN] The Plaintiff is represented by: C.K. Lee, Esq. Lee Litigation Group, PLLC 30 East 39th Street 2nd Floor New York, NY 10016 Phone: (212) 465-1188 Fax: (212) 465-1181 Email: cklee@leelitigation.com CECELIA WATER: La. App. Affirms Class Certification --------------------------------------------------- In the case, CAJUNS FOR CLEAN WATER, LLC ET AL. v. CECELIA WATER CORPORATION D/B/A CECILIA WATER CORPORATION, ET AL, Case No. 18-185 (La. App.), Judge Sylvia R. Cooks of the Court of Appeal of Louisiana for the Third Circuit affirmed the trial court's judgment granting the Plaintiffs' motion for class certification. Jacqueline Berard, Brandi Berard1 and Cajuns filed suit against Cecelia Water Corp. ("CWC") and their insurer, American Alternative Insurance Corp., alleging damages as a result of poor water quality, no and/or low water pressure, arsenic contamination, bacterial contamination, and insufficient water supplied to meet ordinary daily needs of the Plaintiffs. In the "First Supplemental and Amending Petition," Glenn Richardson and Laci Soileau joined as additional Plaintiffs adopting all claims made by the original Plaintiffs and seeking the same relief for damages. The Plaintiffs filed a "Motion to Certify Class" seeking to convert the suit to a class action pursuant to the provisions of La.Code Civ.P. art. 591, asserting there are approximately 11,700 potential putative class members who have sustained injuries as a result of the Defendant's alleged actions and inactions concerning their supplying water to the local population served by CWC. After a full hearing on the matter the trial court rendered judgment granting the Plaintiffs' motion for class certification. The trial court defined the class as all persons, businesses, or entities who belong to at least one of the following three groups, and who as a direct result of receiving their water service from Cecelia Water Corp. between Dec. 1, 2010 and February 2015, have at least one of the following claims: mental and emotional distress; non-reimbursed personal expenses, non-reimbursed business expenses; loss of personal income; loss of business income; nuisance, annoyance, discomfort, and inconvenience; trespass; personal injury including fear of contraction of disease or illness; economic damages or property damage. 1. Households and their residents who at any time between Dec. 1, 2010 and Feb. 28, 2015, were receiving their water supply from the Cecelia Water Corp; 2. Owners and/or occupants of businesses, schools or health care facilities who at any time between Dec. 1, 2010 and Feb. 28, 2015, were receiving their water supply to that business, school, or health care facility from the Cecelia Water Corp.; and 3. Lessor/Lessees of residential and/or commercial property who at any time between Dec. 1, 2010 and Feb. 28, 2015, were receiving their water supply to that property from the Cecelia Water Corp. The trial court also confirmed Jacqueline Berard and Glenn Richardson as the representatives of the class and confirmed Jacques Pierre Soileau and W. Glenn Soileau as the counsel for the Class. Further, the trial court prohibited any contact between the defense counsel and the class representatives or class members regarding the class action suit unless otherwise approved by the Court in advance. The trial court rendered an eight-page written reasons for judgment setting forth its findings of fact and detailing its reasons for concluding the Plaintiffs satisfied the numerosity, commonality, typicality, and adequacy requirements of La.CodeCiv.P. art 591(A) as well as its reasons for identifying an objectively definable class of claimants. The Plaintiffs also presented evidence satisfying one or more criteria of La.C.C.P. art. 591(B) according to the trial court. The Defendants appeal the trial court's order granting class certification and the trial court's definition of the class, asserting the trial court failed to perform a rigorous analysis of the claims and defenses presented. They also assert the Plaintiffs failed to establish commonality, predominance and superiority because they cannot prove breach, causation, and damages on a class-wide basis. Additionally, the Defendants maintain the trial court erroneously based its finding of numerosity on the number of potentially aggrieved parties rather than on the number of individuals actually aggrieved. Judge Cooks is convinced that the record supports the trial court's findings and she find sthe procedural requirements for certification of the suit as a class action are fully met. She also finds the trial court's class definition sufficiently identifies an objectively definable class of claimants. Therefore, she affirmed the judgment of the trial court in all respects and the costs of the appeal are assessed against the Defendants. A full-text copy of the Court's Oct. 3, 2018 Order is available at https://is.gd/S4qUvo from Leagle.com. John Michael Parker -- john.parker@taylorporter.com -- L. Adam Thames -- adam.thames@taylorporter.com -- Taylor, Porter, Brooks & Phillips, LLP, P. O. Box 2471, Baton Rouge, LA 70821, (225) 381-0272, Attorneys for Defendant/Appellant. Cecelia Water Corporation. Rachael S. Kellogg -- rkellogg@schafer-law.com -- Schafer & Schafer, LLP, 328 Lafayette Street, New Orleans, LA 70130, (504) 522-0011, Attorney for Defendant/Appellant, American Alternative Insurance Corporation. Jacques P. Soileau, P. O. Box 344, Breaux Bridge, LA 70517, (337) 332-4561, Attorney for Plaintiffs/Appellees, Jacqueline Berard, Glenn Richardson, Laci Soileau and Cajuns for Clean Water, LLC. CHEMOURS COMPANY: Faces PFAS Class Action in Ohio Federal Court --------------------------------------------------------------- The Chemours Company disclosed in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2018, that a putative class action was filed in October 2018 in Ohio federal court against 3M Company (3M), DuPont, Chemours, and other defendants seeking class action status for U.S. residents having a detectable level of perfluoroalkyl and polyfluoroalkyl substances (PFAS) in their blood serum. The complaint seeks declaratory and injunctive relief, including the establishment of a PFAS Science Panel. The Chemours Company provides performance chemicals in North America, the Asia Pacific, Europe, the Middle East, Africa, and Latin America. It operates through three segments: Titanium Technologies, Fluoroproducts, and Chemical Solutions. The Chemours Company was founded in 2014 and is headquartered in Wilmington, Delaware. CHEMOURS COMPANY: Faces PFOS Class Action in N.J. Federal Court --------------------------------------------------------------- The Chemours Company said in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2018, that a putative class action was filed in October 2018 in New Jersey federal court against 3M, DuPont, and Chemours alleging causes of action, including negligence, nuisance, and trespass and seeking damages including property diminution, remediation, treatment, and abatement with compensatory and punitive damages. The purported class includes private drinking water and well owner-occupants within two to five miles of the Company's Chambers Works, New Jersey site containing any detectable level of PFOA or perfluorooctane sulfonic acid (PFOS). The Chemours Company provides performance chemicals in North America, the Asia Pacific, Europe, the Middle East, Africa, and Latin America. It operates through three segments: Titanium Technologies, Fluoroproducts, and Chemical Solutions. The Chemours Company was founded in 2014 and is headquartered in Wilmington, Delaware. CNG RESTAURANTS: Alford Sues Over Unpaid Minimum, Overtime Wages ---------------------------------------------------------------- Ashleigh Alford, Stephanie Mendez-Mmartinez, and Brittany Ozment, on behalf of themselves and all other similarly situated employees, Plaintiffs, v. CNG Restaurants, LLC, and Front Burner Restaurants, LP, Defendants, Case No. 3:18-cv-01225 (M.D. Tenn., November 1, 2018) seeks to recover unpaid (or underpaid) minimum and overtime wages, an equal amount of liquidated damages, costs, attorneys' fees, and all other legal or equitable relief to which they and other similar situated employees who join this action are entitled. The complaint says the Defendants have had a uniform policy and practice of requiring, suffering, or permitting Plaintiffs and all other similarly situated employees to perform compensable work even though Defendants failed to record or compensate the employees for these "off the clock" work hours. Plaintiffs each reside in this judicial district. Plaintiffs are former Twin Peaks Girls who worked at the Brentwood, Tennessee location as servers, hostesses, and bartenders. CNG is a franchisee of Twin Peaks branded restaurants and operates a location in Brentwood, Tennessee. Front Burner operates the Twin Peaks branded restaurants, maintaining strict controls over the concept, including the service standards, appearance and training of "Twin Peaks Girls" such that Front Burner is a joint employer of Plaintiffs and all other similarly situated employees.[BN] The Plaintiffs are represented by: Charles P. Yezbak, III, Esq. YEZBAK LAW OFFICES PLLC 2002 Richard Jones Road, Suite B-200 Nashville, TN 37215 Phone: 615-250-2000 Fax: 615-250-2020 Email: yezbak@yezbaklaw.com - and - Douglas B. Janney III, Esq. Law Office of Douglas B. Janney III 2002 Richard Jones Road, Suite B-200 Nashville, TN 37215 Phone: (615) 742-5900 Email: doug@janneylaw.com COINBASE: Judge Tosses Insider Trading Class Action --------------------------------------------------- Molly Jane Zuckerman, writing for Coin Telegraph, reports that a U.S. district judge has dismissed the lawsuit over alleged insider trading against crypto wallet and exchange Coinbase during its launch of Bitcoin Cash support last year. The lawsuit alleged that Coinbase employees had benefited from insider trading in the process of adding support for the altcoin. However, the judge noted that the plaintiff didn't have a sufficient legal basis for his claims in the complaint, and dismissed the class action without prejudice. [GN] COMMONWEALTH FINANCIAL: Solis Files Class Suit Under FDCPA ----------------------------------------------------------- A class action lawsuit has been filed against Commonwealth Financial System, Inc., et al. The case is styled as Marisol Solis v. Commonwealth Financial System, Inc., Pendrick Capital Partners, LLC, Defendants, Case No. 2:18-cv-06130 (E.D. N.Y., Nov. 1, 2018). The Plaintiff filed the case under the Fair Debt Collection Practices Act. Commonwealth Financial Systems, Inc., doing business as NCC, operates as a collection agency. It provides account receivable management and financial services in Northeastern Pennsylvania. The company's account receivable management services comprise first party outsourcing, check collections, third party collections, skip tracing, billing services, on-site collections, debt purchasing, and credit bureau reporting. Pendrick Capital Partners provides consumer debt underwriting and servicing services. The company is based in the United States.[BN] The Plaintiff is represented by: Craig B. Sanders, Esq. Sanders Law, PLLC 100 Garden City Plaza, Suite 500 Garden City, NY 11530 Phone: (516) 203-7600 Fax: (516) 281-7601 Email: csanders@sanderslawpllc.com CONTRACT CALLERS: Bailey Suit Asserts FDCPA Violation ----------------------------------------------------- Patricia Bailey, individually and on behalf of all others similarly situated, Plaintiff, v. Contract Callers Inc. and John Does 1-25, Defendants, Case No. 2:18-cv-04773-AB (E.D. Penn. November 5, 2018) is a class action on behalf of a class of Pennsylvania consumers seeking damages under the Fair Debt Collections Practices Act. Plaintiff is a resident of the Commonwealth of Pennsylvania, Bucks, residing at 208 Rocksville Road, Holland, PA 18966. Contract Callers is a "debt collector" as the phrase is defined in 15 U.S.C. and used in the FDCPA with an address at 501 Greene Street, 3rd Floor, Suite 302, Augusta, Georgia 30901. Defendant is a company that uses the mail, telephone, and facsimile and regularly engages in business the principal purpose of which is to attempt to collect debts alleged to be due another. John Does 1-25, are fictitious names of individuals and businesses alleged for the purpose of substituting names of Defendants whose identities will be disclosed in discovery and should be made parties to this action.[BN] The Plaintiff is represented by: Antranig Garibian, Esq. GARIBIAN LAW O.FFICES, P.C. 1800 JFK Blvd, Suite 300 Philadelphia, PA 19103 Email: ag@garibianlaw.com CORECIVIC: Court Certifies Class of Diabetic Inmates in Dodson -------------------------------------------------------------- In the case, DOUGLAS DODSON, et al., Plaintiffs, v. CORECIVIC, et al., Defendants, Case No. 3:17-cv-00048 (M.D. Tenn.), Judge William A. Campbell, Jr. of the U.S. District Court for the Middle District of Tennessee, Nashville Division, granted the Plaintiffs' Motion for Class Certification. The Plaintiffs and the potential class members are inmates who are, or have been, incarcerated at Trousdale Turner Correctional Facility, a private prison owned and operated by Defendant CoreCivic ("CCA"), formerly Corrections Corporation of America. The Plaintiffs and the proposed class are persons with insulin-dependent diabetes who require blood sugar monitoring and insulin administration in coordination with regular mealtimes. They assert that the Defendants have deprived, and continue to deprive, them of access to this basic diabetes care at Trousdale. The Plaintiffs allege that Defendants Tennessee Department of Corrections ("TDOC"), Parker (as Commissioner), and CCA have denied them and the potential class members accommodations for their disabilities as required by the Rehabilitation Act and Title II of the Americans with Disabilities Act ("ADA") by assigning them to incarceration at Trousdale. They also aver that CCA has subjected them and the potential class members to cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the U.S. Constitution, through policies and practices that manifest deliberate indifference to the Plaintiffs' serious medical needs, specifically access to basic diabetes care -- blood sugar monitoring and insulin administration in coordination with regular mealtimes. The Plaintiffs contend that these actions by all the Defendants have caused them serious injury. The Plaintiffs' purported class action seeks declaratory and injunctive relief only. They ask the Court to certify a class of all persons with insulin-dependent diabetes who are, have been, or may become housed at Trousdale. They ask the Court to certify the class under Fed. R. Civ. P. 23(a) and 23(b)(1) or (b)(2). Judge Campbell finds that the Plaintiffs have met the requirements of Rule 23(a), Rule 23(b)(1) and 23(b)(2). He therefore certified the class of all inmates with Type I and insulin-dependent Type II diabetes who are or may become housed at Trousdale Turner Correctional Facility and who require access to blood sugar checks and insulin administration in coordination with regular mealtimes. A full-text copy of the Court's Oct. 3, 2018 Order is available at https://is.gd/BYTlvA from Leagle.com. Douglas Dodson & Jasper L. Vick, Plaintiffs, represented by Charles P. Yezbak, III, Yezbak Law Offices, Jon C. Goldfarb, Wiggins, Childs, Quinn & Pantazis, PLLC, Justin S. Gilbert, Gilbert McWherter Scott Bobbitt PLC, L. William Smith, Wiggins, Childs, Quinn & Pantazis, PLLC & Rachel McGinley -- rmcginley@wigginschilds.com -- Wiggins, Childs, Quinn & Pantazis, PLLC. Edward Judd, Plaintiff, represented by Jon C. Goldfarb -- jcg@wigginschilds.com -- Wiggins, Childs, Quinn & Pantazis, PLLC & L. William Smith -- wsmith@wigginschilds.com -- Wiggins, Childs, Quinn & Pantazis, PLLC. CoreCivic, doing business as Corrections Corporation of America, Defendant, represented by Erin Palmer Polly -- Erin.Polly@butlersnow.com -- Butler Snow LLP, Joseph F. Welborn, III -- Joe.Welborn@butlersnow.com -- Butler Snow LLP & Kyle V. Miller -- kyle.miller@butlersnow.com -- Butler Snow LLP. Tennessee Department of Correction & Tony Parker, Commissioner of Tennessee Department of Correction, Defendants, represented by Jennifer L. Brenner -- jennifer.brenner@ag.tn.gov -- Tennessee Attorney General's Office & Torrey Samson -- torrey.samson@ag.tn.gov -- Tennessee Attorney General's Office. American Diabetes Association, Intervenor Plaintiff, represented by Alan L. Yatvin, Popper & Yatvin, Justin S. Gilbert, Gilbert McWherter Scott Bobbitt PLC & Sarah Fech-Baughman, American Diabetes Association. CORECIVIC: Dismissal Bid in Dodson Partly Granted ------------------------------------------------- In the case, DOUGLAS DODSON, et al., Plaintiffs, v. CORECIVIC, et al., Defendants, Case No. 3:17-cv-00048 (M.D. Tenn.), Judge William A. Campbell, Jr. of the U.S. District Court for the Middle District of Tennessee, Nashville Division, (i) denied Defendants Tennessee Department of Corrections ("TDOC") and Tony Parker's Supplemental Motion to Dismiss; and (ii) granted in part and denied in part CoreCivic's Supplemental Motion to Dismiss and for Summary Judgment. Dodson and Jasper Vick are inmates who were incarcerated at Trousdale Turner Correctional Facility, a private prison owned and operated by Defendant CoreCivic ("CCA"), formerly Corrections Corporation of America. The Plaintiffs and the proposed class members are persons with insulin-dependent diabetes who require access to blood sugar monitoring and insulin administration in coordination with regular mealtimes. They assert that the Defendants have deprived, and continue to deprive, inmates with insulin-dependent diabetes access to basic diabetes care at Trousdale. The Plaintiffs allege that Defendants TDOC, Parker (as Commissioner) ("State Defendants"), and CCA have denied the Plaintiffs and the potential class members reasonable accommodations for their disabilities, as required by the Rehabilitation Act and Title II of the Americans with Disabilities Act ("ADA"), by assigning them to incarceration at Trousdale. The Plaintiffs also aver that CCA has subjected them and the potential class members to cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the U.S. Constitution by policies and practices that manifest deliberate indifference to their serious medical needs, specifically access to basic diabetes care -- blood sugar monitoring and insulin administration in coordination with regular mealtimes. The Plaintiffs contend that these actions by all the Defendants have caused them serious injury. They seek declaratory and injunctive relief only. Pending before the Court are CoreCivic's Supplemental Motion to Dismiss and for Summary Judgment; and Defendants TDOC and Parker's Supplemental Motion to Dismiss. The State Defendants ask the Court to dismiss the action based on failure to exhaust administrative remedies. They assert that Plaintiff Dodson failed to exhaust his administrative remedies, as required by the Prison Litigation Reform Act ("PLRA"). Judge Campbell cannot resolve the disputed issue of fact on a motion to dismiss. Moreover, he cannot treat the Motion to Dismiss as one for summary judgment in accordance with Fed. R. Civ. P. 12(d), because the State Defendants have not complied with Fed. R. Civ. P. 56 and Local Rule 56.01. Therefore, the Judge will deny the State Defendants' Supplemental Motion to Dismiss for failure to exhaust administrative remedies. As to CoreCivic's Motion for Summary Judgment, the Judge finds that there is no persuasive evidence that the Defendants intentionally "picked off" the named Plaintiffs in order to strategically avoid litigation. At best, there are genuine issues of material fact concerning this allegation. In any event, he finds that the Plaintiffs' claims are not moot. Given the length of litigation and the shortage of judges in the district, any challenged action (or lack thereof) at Trousdale could be too short to be fully litigated before the named Plaintiffs or other class members are transferred. Accordingly, the Plaintiffs may rely upon the "inherently transitory" exception to mootness in order to show standing in the case. The Judge will deny CCA's motion on the mootness issue. The Judge is contemporaneously certifying a class in the action pursuant to Fed. R. Civ. P. 23(a), (b)(1) and (b)(2). Therefore, pursuant to the authorities, the Plaintiffs have, at a minimum, raised genuine issues of material fact as to whether Dodson and other members of the class may rely upon Vick's exhaustion to proceed. CCA's motion on the exhaustion issue will be denied. Finally, the Plaintiffs agree with the dissent in Edison v. Douberly and argue that CCA should be subject to suit under Title II of the ADA. They contend that cases that have held to the contrary are wrongly decided. The Judge will not depart from the majority view, however, unless and until the Sixth Circuit holds otherwise. Hence, the Plaintiffs' Title II ADA claims against CCA will be dismissed. For all these reasons, Judge Campbell denied Defendants TODC and Parker's Supplemental Motion to Dismiss; and granted in part and denied in part CoreCivic's Supplemental Motion to Dismiss and for Summary Judgment. The Plaintiff's ADA claims against CCA are dismissed. A full-text copy of the Court's Oct. 3, 2018 Memorandum is available at https://is.gd/sNzXdU from Leagle.com. Douglas Dodson & Jasper L. Vick, Plaintiffs, represented by Charles P. Yezbak, III, Yezbak Law Offices, Jon C. Goldfarb, Wiggins, Childs, Quinn & Pantazis, PLLC, Justin S. Gilbert, Gilbert McWherter Scott Bobbitt PLC, L. William Smith, Wiggins, Childs, Quinn & Pantazis, PLLC & Rachel McGinley -- rmcginley@wigginschilds.com -- Wiggins, Childs, Quinn & Pantazis, PLLC. Edward Judd, Plaintiff, represented by Jon C. Goldfarb -- jcg@wigginschilds.com -- Wiggins, Childs, Quinn & Pantazis, PLLC & L. William Smith -- wsmith@wigginschilds.com -- Wiggins, Childs, Quinn & Pantazis, PLLC. CoreCivic, doing business as Corrections Corporation of America, Defendant, represented by Erin Palmer Polly -- Erin.Polly@butlersnow.com -- Butler Snow LLP, Joseph F. Welborn, III -- Joe.Welborn@butlersnow.com -- Butler Snow LLP & Kyle V. Miller -- kyle.miller@butlersnow.com -- Butler Snow LLP. Tennessee Department of Correction & Tony Parker, Commissioner of Tennessee Department of Correction, Defendants, represented by Jennifer L. Brenner -- jennifer.brenner@ag.tn.gov -- Tennessee Attorney General's Office & Torrey Samson -- torrey.samson@ag.tn.gov -- Tennessee Attorney General's Office. American Diabetes Association, Intervenor Plaintiff, represented by Alan L. Yatvin, Popper & Yatvin, Justin S. Gilbert, Gilbert McWherter Scott Bobbitt PLC & Sarah Fech-Baughman, American Diabetes Association. COTY INC: Court Dismisses B. Franks Class Action Complaint ---------------------------------------------------------- In the case, SHAMIKA JONES, on behalf of herself and all others similarly situated, et al., Plaintiffs, v. COTY INC., et al., Defendants, Civil Action No. 16-0622-WS-B (S.D. Ala.), Judge William H. Steele of the U.S. District Court for the Southern District of Alabama, Southern Division, dismissed without prejudice Plaintiff Brianna Franks' class action complaint. The matter comes before the Court sua sponte. On Sept. 14, 2018, the Judge entered an omnibus Order addressing numerous pending motions, including six summary judgment motions, in these consolidated cases. With respect to Plaintiff Brianna Franks, the September 14 Order directed the parties to show cause, on Sept. 28, 2018, why Franks' surviving individual claims should not be dismissed for lack of federal subject-matter jurisdiction. The September 28 deadline has expired with no response from any parties to the show-cause portion of the omnibus Order. In her Class Action Complaint originally filed in the U.S. District Court for the Southern District of Mississippi, prior to consolidation in the Court, Franks alleged that federal jurisdiction was proper pursuant to 28 U.S.C. Section 1332(d) because there are more than 100 Class members, the aggregate amount in controversy exceeds $5 million, exclusive of interest, fees, and costs, and at least one Class member, Plaintiff Breonna Franks, is a citizen of a state different from at least one Defendant. Judge Steele holds that Franks' Class Action Complaint lacked any other jurisdictional allegations. The Court now knows that Franks has chosen not to pursue any class claims, but instead advances purely individual claims as set forth in her Complaint. In the wake of the summary judgment ruling, her only remaining causes of action against defendants are purely individual claims under Mississippi law for unjust enrichment (Count I) and breach of express warranty (Count III). Obviously, jurisdiction cannot lie pursuant to 28 U.S.C. Section 1332(d) as to Franks' Complaint because Franks is no longer pursuing any class claims. While Franks' individual state-law claims might be subject to supplemental jurisdiction under 28 U.S.C. Section 1367, the subsequent dismissal/abandonment of her class claims weighs in favor of the Court declining to exercise such supplemental jurisdiction and instead dismissing the remaining claims without prejudice. The propriety of this result is reinforced by the facts that: (i) no party elected to be heard in response to the Show Cause Order; and (ii) Franks' claims are brought under Mississippi law, whereas the only remaining class claims joined in this action sound exclusively under Alabama law (for violation of the Alabama Deceptive Trade Practices Act). Such Mississippi claims are best resolved by Mississippi courts. For all of the foregoing reasons, Judge Steele in his discretion elects not to exercise supplemental jurisdiction over Plaintiff Brianna Franks' remaining individual state-law claims asserted against the Defendants. Accordingly, he dismissed Franks' Class Action Complaint without prejudice to her ability to refile in state court. A full-text copy of the Court's Oct. 2, 2018 Order is available at https://is.gd/JrvZTa from Leagle.com. Carrie Bowens, Plaintiff, represented by Joseph L. Tucker, Jackson & Tucker, P.C., K. Stephen Jackson, Jackson & Tucker, P.C., W. Lewis Garrison, Jr. -- lewis@hgdlawfirm.com -- Heninger Garrison Davis LLC & Brandy Lee Robertson -- brandy@hgdlawfirm.com -- Heninger Garrison Davis LLC. Coty, Inc., The Procter & Gamble Manufacturing Co., Inc., The Procter & Gamble Distributing, L.L.C., Procter and Gamble Hair Care, L.L.C. & The Procter & Gamble Company, Inc., Defendants, represented by Jeffrey B. Cannon, Jr., Huie Fernambucq & Stewart, LLP, Walter J. Price, III -- wprice@huielaw.com -- Huie, Fernambucq & Stewart, LLP & Hugh Cannon Lawley -- Cannon@huielaw.com -- Huie, Fernambucq & Stewart. CRITERION WORLDWIDE: Fenton Seeks Over Unpaid Overtime, Min. Wages ------------------------------------------------------------------ Siobhan Fenton, individually and on behalf of all others similarly situated, Plaintiffs, v. Criterion Worldwide and Lewis Morton, Defendants, Case No. 1:18-cv-10224 (S.D. N.Y., November 2, 2018) seeks damages and other legal and equitable relief from Defendants for violations of the Fair Labor Standards Act and The New York Labor Law. Plaintiff brought this action on behalf of 2 collectives of persons who are and were employed by Defendants as Account Executives during the past 3 years through the final date of the disposition of this action who: (i) are/were not paid the statutorily required overtime rate of 1 1/2 times their regular hourly rate for all hours worked in excess of 40 hours per workweek in violation of the FLSA; and (ii) are/were not paid the statutorily required federal minimum wage for all hours worked per workweek in violation of the FLSA and who are entitled to recover unpaid and incorrectly paid wages for all hours worked in a workweek, as required by law, unpaid overtime wages, unpaid minimum wages, liquidated damages, interest, attorneys' fees and costs, and such other and further relief as the Court finds necessary and proper, says the complaint. Plaintiff was an employee of the Defendant within the meaning of the FLSA and the NYLL and a resident of New York County, New York. Defendant Criterion Worldwide is an entity operating within the State of New York and within this judicial district. Criterion's principal place of business is located within in New York County, New York. Defendant Lewis Morton is a British citizen and resides in New York County, New York and is the Owner, President, Shareholder, Officer, and/or Director of Defendant Criterion.[BN] The Plaintiff is represented by: Matthew L. Berman, Esq. James Vagnini, Esq. Robert J. Valli, Jr., Esq. Sara Wyn Kane, Esq. Valli Kane & Vagnini LLP 600 Old Country Road, Suite 519 Garden City, NY 11530 Phone: (516) 203-7180 Fax: (516) 706-0248 CROCKETT & JONES: Nixon Suit Asserts ADA Breach ----------------------------------------------- A class action lawsuit has been filed against Crockett & Jones U.S.A., Inc. The case is styled as Donald Nixon on behalf of himself and all others similarly situated, Plaintiff v. Crockett & Jones U.S.A., Inc., Defendant, Case No. 1:18-cv-06271 (E.D. N.Y., Nov. 5, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. Crockett & Jones is a shoe manufacturing company. It specializes in the manufacture of Goodyear-welted footwear. It is currently being run by the great grandson of its co-founder, Charles Jones. Crockett & Jones produces both men's and women's footwear with three collections offered for men and a limited range of boots and low heeled shoes produced for women.[BN] The Plaintiff is represented by: Jonathan Shalom, Esq. 124-04 Metropolitan Avenue Kew Gardens, NY 11374 Phone: (718) 971-9474 Email: jshalom@jonathanshalomlaw.com DAIRYAMERICA INC: New Escrow Agent Established in Carlin Suit ------------------------------------------------------------- In the case, GERALD CARLIN, JOHN RAHM, PAUL ROZWADOWSKI and DIANA WOLFE, individually and on behalf of themselves and all others similarly situated, Plaintiffs, v. DAIRYAMERICA, INC. and CALIFORNIA DAIRIES, INC., Defendants, Case No. 1:09 CV 00430-AWI (EPG) (E.D. Cal.), Judge Anthony W. Ishii of the U.S. District Court for the Eastern District of California, Fresno Division, granted the named Plaintiffs' unopposed motion to substitute the escrow agent and to extend the date by when the Defendants are to pay the first settlement payment-installment. The Judge ordered that the paragraph 8.1 of the Settlement Agreement is modified to state: 8.1 The Escrow Account will be established at Huntington National Bank (Escrow Agent), such escrow to be administered under the Court's continuing supervision and control. Class Counsel will insist on an escrow agreement that requires appropriate accounting records to be maintained to reflect all transactions involving the Settlement Fund which will be kept on a calendar year, as required by Treas. Reg. Section 1.468B-2(j). He also ordered that paragraph 7.1 of the Settlement Agreement is modified to state: 7.1 Monetary Payment. Defendants will pay an aggregate of $40,000,000 (the Settlement Amount) in two payment-installments of $20,000,000 each. The first payment installment of $20,000,000 in U.S. dollars (First Payment-Installment), will be paid no later than ten (10) business days following completion of all of the following events: (1) the entry of the Preliminary Approval Order; (2) entry of an order adopting this Jointly Agreed-Upon Modification No. 1 to Settlement Agreement; and (3) receipt by Defendants of complete payee information, including an executed Form W-9, and complete payment instructions. The second payment-installment of $20,000,000 in U.S. dollars (Second Payment Installment) will be paid by the later of (a) ten (10) business days following the Effective Date or (b) January 11, 2019. 3. The deadline for Defendants to wire the first payment installment of $20,000,000 in U.S. dollars is extended from September 28, 2018 to ten (10) business days from the completion of both of the following events: (1) entry of this order; and (2) the receipt by Defendants of complete payee information, including an executed Form W-9, and complete payment instructions. A full-text copy of the Court's Oct. 2, 2018 Order is available at https://is.gd/OwCvdZ from Leagle.com. Gerald Carlin, individually and on behalf of themselves and all others similarly situated, John Rahm, individually and on behalf of themselves and all others similarly situated & Paul Rozwadowski, individually and on behalf of themselves and all others similarly situated, Plaintiffs, represented by A. Chowning Poppler -- apoppler@bermantabacco.com -- Berman Tabacco, Anthony David Phillips -- aphillips@bermandevalerio.com -- Berman DeValerio, Benjamin Doyle Brown -- bbrown@cohenmilstein.com -- Cohen Milstein Sellers & Toll PLLC, Brent W. Johnson, Cohen Milstein Hausfeld and Toll PLLC, pro hac vice, Cari C. Laufenberg -- claufenberg@kellerrohrback.com -- Keller Rohrback L.L.P., pro hac vice, Christopher Heffelfinger -- cheffelfinger@bermantabacco.com -- Berman Tabacco, George F. Farah, Cohen Milstein Hausfeld and Toll PLLC, pro hac vice, Juli E. Farris -- jfarris@kellerrohrback.com -- Keller Rohrback LLP, Justin N. Saif -- jsaif@bermandevalerio.com -- Berman DeValerio, pro hac vice, Leslie M. Kroeger, Cohen Milstein Sellers & Toll PLLC, pro hac vice & Ryan McDevitt -- rmcdevitt@kellerrohrback.com, -- Keller Rohrback L.L.P., pro hac vice. Diana Wolfe, Plaintiff, represented by A. Chowning Poppler, Berman Tabacco, Anthony David Phillips, Berman DeValerio, Benjamin Doyle Brown, Cohen Milstein Sellers & Toll PLLC, Brent W. Johnson, Cohen Milstein Hausfeld and Toll PLLC, pro hac vice, Cari C. Laufenberg, Keller Rohrback L.L.P., pro hac vice, Christopher Heffelfinger, Berman Tabacco, George F. Farah, Cohen Milstein Hausfeld and Toll PLLC, pro hac vice, Juli E. Farris, Keller Rohrback LLP, Justin N. Saif, Berman DeValerio, pro hac vice & Ryan McDevitt, Keller Rohrback L.L.P., pro hac vice. DairyAmerica, Inc., Defendant, represented by Charles M. English, Davis Wright Tremaine LLP, pro hac vice, E. John Steren -- esteren@ebglaw.com -- Ober Kaler, pro hac vice, Joseph Michael Marchini -- jmm@bmj-law.com -- Baker, Manock & Jensen, Wendy M. Yoviene -- wyoviene@bakerdonelson -- Ober Kaler, pro hac vice, Allison Ann Davis -- allisondavis@dwt.com -- Davis Wright Tremaine LLP, Joy G. Kim -- joykim@dwt.com -- Davis Wright Tremaine LLP & Sanjay Mohan Nangia -- sanjaynangia@dwt.com -- Davis Wright Tremaine LLP. California Dairies, Inc., Defendant, represented by by Lawrence Michael Cirelli -- lcirelli@hansonbridgett.com -- Hanson Bridgett, Shannon Marie Nessier, Hanson Bridgett LLP & Megan Oliver Thompson, Hanson Bridgett LLP. Bimemiller Candice, Non-Party Candice Bimemiller, Unknown, represented by Edward Zusman, Markun Zusman Freniere & Compton LLP. James Rehberg & Ronald Hayek, ThirdParty Plaintiffs, represented by J. Barton Goplerud, Hudson Law Firm, pro hac vice & Jon A. Tostrud, Tostrud Law Group, P.C. Michael K. Schugg, ThirdParty Plaintiff, represented by J. Barton Goplerud, Hudson Law Firm, pro hac vice & Juli E. Farris, Keller Rohrback LLP. Timothy L. Rawlings, ThirdParty Plaintiff, represented by J. Barton Goplerud, Hudson Law Firm, pro hac vice, Juli E. Farris, Keller Rohrback LLP, Mark A. Griffin, Keller Rohrback LLP, pro hac vice & Raymond J. Farrow, Keller Rohrback LLP, pro hac vice. Land O' Lakes, Inc., Amicus, represented by Gregory M. Schweizer -- gschweizer@eimerstahl.com -- Eimer Stahl LLP, pro hac vice, Scott C. Solberg --ssolberg@eimerstahl.com -- Eimer Stahl LLP, pro hac vice & Seth D. Hilton -- sethhilton@stoel.com -- Stoel Rives LLP. California Farmers Union & California Dairy Campaign, Amicuss, represented by Daniel Bennett Harris. Lani Ellingsworth, Movant, represented by Darin M. Dalmat -- dmdalmat@jamhoff.com -- James & Hoffman, P.C. & Glenn Rothner, Rothner, Segall & Greenstone. DOUGH JOE LLC: Underpays Kitchen Staffs, Espinoza and Sucup Say --------------------------------------------------------------- SELVIN ESPINOZA, and ALEJANDRO SUCUP, individually and on behalf of all others similarly situated, Plaintiffs v. DOUGH JOE LLC D/B/A HINOMARU RAMEN; and MIN LEE, Defendants, Case No. CV18-5745 (E.D.N.Y., Oct. 15, 2018) is an action against the Defendants for unpaid regular hours, overtime hours, minimum wages, wages for missed meal and rest periods. The Plaintiffs were employed by the Defendants as kitchen staff. Dough Joe LLC d/b/a Hinomaru Ramen is a corporation oraganized under the laws of the State of New York. The Company is engaged in the restaurant business. [BN] The Plaintiff is represented by: Roman Avshalumov, Esq. HELEN F. DALTON & ASSOCIATES, P.C. 69-12 Austin Street Forest Hills, NY 11375 Telephone: (718) 263-9591 EQUIFAX INC: Red Cliff Band Files FCRA Suit in Wisconsin -------------------------------------------------------- A class action lawsuit has been filed against Equifax, Inc. The case is styled as Red Cliff Band of Lake Superior Chippewa individually and on behalf of its members and class representatives for similarly situated federally recognized Indian Tribes and Nations, Plaintiff v. Equifax, Inc., Defendant, Case No. 3:18-cv-00903 (W.D. Wis., Nov. 1, 2018). The Plaintiff filed the case under the Fair Credit Reporting Act. Equifax Inc. provides information solutions and human resources business process outsourcing services for businesses, governments, and consumers. The company operates through four segments: U.S. Information Solutions (USIS), International, Workforce Solutions, and Global Consumer Solutions.[BN] The Plaintiff is represented by: David Michael Ujke, Esq. Red Cliff Band of Lake Superior Chippewa 88385 Pike Road, Hwy 13 Bayfield, WI 54814 Phone: (715) 779-3725 Email: dujke@redliff-nsn.gov - and - James Nixon Daniel, III, Esq. Beggs & Lane RLLP 501 Commendencia Street Pensacola, FL 32502 Phone: (850) 469-3306 Email: jnd@beggslane.com - and - Thomas Roe Frazer, II, Esq. Frazer, PLC 1 Burton Hills Blvd., Suite 215 Nashville, TN 37215 Phone: (615) 647-0990 x1 Email: roe@frazer.law EVERYDAY BEAUTY: Court Allows 2nd Amended Yang FLSA Suit -------------------------------------------------------- In the case, LINGMAIN YANG, et al., Plaintiffs, v. EVERYDAY BEAUTY AMORE INC., et al., Defendants, Case No. 18-cv-729 (BMC) (E.D. N.y.), Judge Brian M. Cogan of the U.S. District Court for the Eastern District of New York granted the Plaintiffs' motion for leave to amend their complaint. The Plaintiffs bring the action under the Fair Labor Standards Act and the New York Labor Law, seeking to represent both a collective and a class of similarly situated employees. The Plaintiffs are former in-store salespersons at the Defendants' cosmetic stores. Specifically, the named Plaintiffs claim that they were employed at stores located at 6301 8th Avenue, store #21, in Brooklyn, New York (owned and operated by named Defendant Everyday Beauty Aritaum Inc.); 6301 8th Avenue, store #12-13, in Brooklyn, New York (owned and operated by named Defendant Everyday Beauty Amore Inc.); 40-24 College Point Boulevard, Suite B211, in Flushing, New York (owned and operated by named Defendant Everyday Beauty Amore LLC); and 136-20 Roosevelt Avenue, Unit 202-205 in Flushing, New York (owned and operated by named Defendant Everyday Beauty Missha Corp.). The Plaintiffs also name Xiu Qing Su and Xin Lin as individual Defendants, alleging that they are the owners, officers, directors, and managing agents of the corporate Defendants, and make all business decisions with respect to employees' salaries and the number of hours they work. The Plaintiffs' (currently operative) first amended complaint alleges that the Defendants are a single enterprise under the FLSA. However, at a premotion conference on Aug. 15, 2018, the Court deferred ruling on the Plaintiff's motion to conditionally certify a collective action until the Plaintiff alleged additional, non-conclusory facts to support its theory of single enterprise liability in a proposed second amended complaint. The Defendants generally deny the Plaintiffs' claims and raise several counterclaims, including that the Plaintiffs fraudulently diverted customer reward points for their personal use and stole the company's confidential customer lists. They also contest the fact that named Plaintiff Yang Lingmin is an employee; rather, they contend that Lingmin is an employer under the FLSA, and thus cannot adequately represent a collective or class action of employees. The Defendants also filed a third-party complaint against Mei Hui Jiang, alleging that Jiang was also liable to defendants for the alleged fraud and theft. The Plaintiffs move for leave to amend their complaint to (1) add a named Plaintiff, (2) add 19 corporate Defendants, (3) plead additional facts to support their claim that the corporate Defendants constitute a single enterprise, (4) remove their claim for spread-of-hours pay, and (5) disclaim named Plaintiff Yang Lingmin's desire to act as a representative of the other Plaintiffs in the putative collective and class actions. The Defendants oppose the Plaintiffs' motion to the extent it seeks to add the 19 proposed corporate Defendants on the ground that the Plaintiffs lack Article III standing. Judge Cogan finds that the Plaintiffs have sufficiently pleaded that the corporate Defendants (including the 19 proposed entities) constitute a single enterprise under the FLSA. First, the Plaintiffs have included facts to support the point that the corporate defendants engage in the same or similar activities. Second, they have made a sufficient showing at this stage of common operation and control. Finally, they've sufficiently alleged that the corporate Defendants share a common business purpose -- namely, to compete in commercial activity for the sale of beauty supplies. Although the Plaintiffs have established their standing to sue the 19 proposed corporate Defendants, the Judge must still grant the Plaintiffs leave to amend their complaint. He finds that the Plaintiffs have good cause to amend the complaint in this instance. Their previous counsel withdrew on June 25, 2018 and their current counsel appeared on July 6, 2018. The new facts alleged in the proposed second amended complaint were obtained through a good faith investigation conducted by the Plaintiff's new counsel, and they should be able to amend their complaint accordingly. Put simply, the Plaintiffs' delay was not due to their lack of diligence. Further, as the case is still in its infancy, allowing the amendment will not severely prejudice the Defendants. Therefore, Judge Cogan granted the Plaintiffs' motion to amend. A full-text copy of the Court's Oct. 3, 2018 Memorandum Decision and Order is available at https://is.gd/r56gDR from Leagle.com. Lingmin Yang, Lanqing Lin, Yong Shan Su, Lixian Qian & En Lin Xiao, individually and on behalf of all other employees similarly situated, Plaintiffs, represented by Aaron Schweitzer, Troy Law, PLLC & John Troy , Troy & Associates, PLLC. Mei Hui Jiang, Plaintiff, represented by John Troy, Troy & Associates, PLLC. Everyday Beauty Amore Inc., Beauty Aritaum Corp., Xiu Qing Su, Everyday Amore LLC & Everyday Beauty Missha Corp., Defendants, represented by Felice B. Ekelman -- Felice.Ekelman@jacksonlewis.com -- Jackson Lewis, P.C., Christine Lee Hogan -- clhogan@littler.com -- Littler Mendelson, P.C., Douglas J. Klein -- Douglas.Klein@jacksonlewis.com -- Jackson Lewis LLP & Kevin K. Yam -- kyam@littler.com -- Littler Mendelson P.C. Everyday Beauty Amore Inc., Everyday Amore LLC, Everyday Beauty Missha Corp., Beauty Aritaum Corp. & Xiu Qing Su, ThirdParty Plaintiffs, represented by Felice B. Ekelman, Jackson Lewis, P.C., Christine Lee Hogan, Littler Mendelson, P.C., Douglas J. Klein, Jackson Lewis LLP & Kevin K. Yam, Littler Mendelson P.C. Mei Hui Jiang, ThirdParty Defendant, represented by Aaron Schweitzer, Troy Law, PLLC & John Troy, Troy & Associates, PLLC. Everyday Beauty Amore Inc., Everyday Amore LLC, Everyday Beauty Missha Corp., Beauty Aritaum Corp. & Xiu Qing Su, Counter Claimants, represented by Felice B. Ekelman, Jackson Lewis, P.C., Christine Lee Hogan, Littler Mendelson, P.C., Douglas J. Klein, Jackson Lewis LLP & Kevin K. Yam, Littler Mendelson P.C. Lanqing Lin, Lixian Qian, Yong Shan Su & En Lin Xiao, individually and on behalf of all other employees similarly situated, Counter Defendants, represented by Aaron Schweitzer , Troy Law, PLLC, John Troy, Troy & Associates, PLLC & Keli Liu, Hang & Associates, PLLC. Lingmin Yang, Counter Defendant, represented by Aaron Schweitzer, Troy Law, PLLC & John Troy, Troy & Associates, PLLC. FAMILY FIRST LIFE: Albrecht Files Suit Over Unwanted Calls ---------------------------------------------------------- Peter Albrecht and Joshua Berger, individually and on behalf of all others similarly situated, Plaintiffs, v. Family First Life, LLC, and Wellcare Health Plans of New Jersey, Inc. Defendants, Case No. 8:18-cv-01967 (C.D. Cali., November 1, 2018) seeks damages, injunctive relief, and any other available legal or equitable remedies, resulting from the illegal actions of Defendant in negligently and/or willfully contacting Plaintiff on Plaintiffs' telephone, in violation of the Telephone Consumer Protection Act. The consumers have complained about calls from Well Care, and that calls have been placed "continuously" or for the purpose of selling. There are also numerous consumer reports online of unwanted calls from Defendants, notes the complaint. Family First contracted with WellCare to have WellCare place calls to consumers for the purpose of providing Family First with the contact information of consumers who are likely to want to purchase life insurance. Family First directed and had control over when these calls were made to consumers, as well as the content of the scripts that Defendant WellCare's agents were to use in placing the calls. Plaintiffs are, and at all times mentioned herein were, a citizen and resident of the State of California. Family First is a limited liability company whose corporate headquarters is in Connecticut. WellCare is a corporation that is incorporate in New Jersey.[BN] The Plaintiffs are represented by: Nicholas R. Barthel, Esq. Jason A. Ibey, Esq. Abbas Kazerounian, Esq. KAZEROUNI LAW GROUP, APC 245 Fischer Avenue, Suite D1 Costa Mesa, CA 92626 Phone: (800) 400-6808 Facsimile: (800) 520-5523 Email: ak@kazlg.com jason@kazlg.com nicholas@kazlg.com FARMERS UNION: Iowa Residents Mull Class Action Over Odors ---------------------------------------------------------- Amy H. Peterson, writing for Estherville News, reports that on Oct. 25, many local residents received a letter from James Larew of the Larew Law Office with locations in Des Moines, Muscatine and in eastern Iowa. The letter, clearly marked as Advertising Material, invited local residents to attend a meeting with Larew Nov. 3 in Estherville. Retired attorney Max Pelzer said, "This is just a way to drum up business. There was a time lawyers were very restricted on how they could advertise and what they could say in their ads. Now they advertise on TV and radio and make all kinds of claims." According to Bankrate, class action lawsuits rarely end with significant payouts to the little guys. The attorneys and the named plaintiffs may receive a large payout, but plaintiffs not named in the suit (known as class members) could be one of thousands of plaintiffs with the judgment money divided as such. Forty million class members in a recent suit against Target received $0.25 each after the $10 million was divided. Researchers at Mayer Brown looked up every consumer class action in federal court in 2009 reported by two major commercial lawsuit journals. They discovered that in five of six cases where data was available, the percentage of class members who actually got money ranged from a high of 12 percent to a low of 0.000006 percent. If the more appealing prospect is a day in court, telling a judge and perhaps a jury how the odor has affected one's family, as an example, not a single case studied by Mayer Brown went to trial. It's all in the process. Once a judge certifies a case as an action on behalf of a class of thousands of consumers, attorneys for the company usually find the stakes too high for companies to consider anything less than settling. Sometimes plaintiff attorneys settle voluntarily, at which point the records become confidential so that class members never find out how much their onetime lawyers were paid to drop what once seemed like a promising case. There is some protection from the Class Action Fairness Act of 2005, which limited some of the most egregious practices of the class action bar. The Iowa State Bar Association recommends contacting your own attorney, because participating in a class action lawsuit will affect your right to file an action on your own. Class action lawsuits can also take years to wind down. The Emmet County Board of Supervisors is taking action. They are going on a private tour of Central Bi-Products' Estherville rendering plant, then convening in closed session for discussion of pending litigation. Oct. 1, county attorney Doug Hansen filed a petition for a civil penalty against Farmers Union Industries, doing business as Central Bi-Products. That demand seeks $4,750 in the form of a civil penalty plus court costs for committing a county infraction, a civil offense, and four repeat offenses. $750 is sought for leaving carcasses on the open air on semi trailers June 27, a violation of the Conditional Use Permit. $1,000 is sought for the company allegedly allowing fluids from dead carcasses to spill onto its property and draining onto adjacent property. $1,000 is sought for failure to process carcasses in an enclosed facility and failing to clean up and dispose of fluid that had spilled on July 10. $1,000 is sought for all day July 11 in which at least 19 citizens in the area of the plant called the county to complain of the odor. $1.000 is sought for dates from July 12 to July 23 in which at least 38 citizens called to complain about the odor. All of these infractions would constitute a violation of the requirement in the Conditional Use Permit to "make all reasonable effort to control odor." Farmers Union Industries filed a boilerplate answer to the petition in which they deny the statements in the petition and seek a hearing on the matter. [GN] FINANCIAL INDEMNITY: Protective Order Bid in Bhasker Partly OK'd ---------------------------------------------------------------- In the case, HELEN BHASKER, on behalf of herself and all others similarly situated, Plaintiff, v. FINANCIAL INDEMNITY COMPANY, Defendant, CIV No. 17-260 JB/JHR (D. N.M.), Magistrate Judge Jerry R. Ritter of the U.S. District Court for the District of New Mexico granted in part and denied in part the Defendant's Motion for Protective Order. Bhasker, was rear-ended by a third party while traveling eastbound on I-40 on June 24, 2015, and sustained bodily injuries and other damages as a result of the collision. The Plaintiff received the full extent of liability coverage carried by the tortfeasor ($25,000), and turned to her own insurance carrier, Defendant Financial Indemnity Co., to recover underinsured motorist benefits. The parties agree that the Plaintiff's damages exceed $50,000. However, the Plaintiff's insurance policy with the Defendant only contained minimal underinsured motorist coverage of $25,000 per person and $50,000 per accident; therefore, the Defendant denied her claim, reasoning that New Mexico is a difference state. Having received no value from the coverage she purchased from the Defendant, the Plaintiff claims that the underinsured motorist coverage she purchased from the Defendant was, accordingly, illusory under New Mexico law. The Plaintiff filed her Class Action Complaint for Breach of Statutory, Common Law, and Contractual Duties in New Mexico state court on Dec. 30, 2016. The Defendant removed the case to the Court on Feb. 24, 2017, citing the Class Action Fairness Act and diversity of the parties. In her Complaint, the Plaintiff alleges that Defendant failed to act honestly and in good faith when it solicited and sold superfluous and illusory minimal limits underinsured motorist coverage to their insureds (in whole or in part) in violation of New Mexico law, and/or denied claims for the benefits of that coverage. The Plaintiff brings the following claims on her own behalf and on behalf of the putative class: negligence (Count I); violation of New Mexico's Unfair Trade Practices Act (Count II); violation of New Mexico's Unfair Insurance Practices Act (Count III); breach of contract (Count IV); breach of the covenant of good faith and fair dealing (Count V); and claims for declaratory and injunctive relief (Counts VI-VII). The Plaintiff defines the putative class as all persons (and their heirs, executors, administrators, successors, and assigns) who, in the prior six years from the date of the filing of the complaint, were a policy holder and/or insured, of a Motor Vehicle Policy issued by the Defendant where that policy did not and does not provide underinsured coverage paid for by the policyholder, and sold and solicited by the dDfendant, due to the application of an offset as set forth in NMSA 66-5-301, otherwise known as the New Mexico offset law or being a difference state. The current dispute involves the Defendant's Rule 30(b)(6) deponents: specifically, the Plaintiff's 19 proposed deposition topics for the witnesses. While it indicates in its Motion and Reply that it will provide witnesses to discuss most of the Plaintiff's topics, the Defendant asks the Court to limit those topics on a number of grounds and preclude questioning in certain areas. The Plaintiff opposes a protective order and asks that the Defendant be compelled to provide testimony as initially requested. Magistrate Judge Ritter granted the Defendant's motion only insofar as the Plaintiff's topics exceed the permissible scope of discovery, which, in the lawsuit, is restricted to underinsured motorist coverage. Otherwise, the Defendant has failed to show good cause to preclude questioning on many of the topics the Plaintiff proffered. He recognizes that preparing its witnesses may prove burdensome in light of these rulings. However, while the counsel will have to carefully prepare the 30(b)(6) representative, they must always do so. Wherefore, the Magistrate Judge granted in part and denied in part the Defendant's Motion seeking a protective order. A full-text copy of the Court's Oct. 3, 2018 Memorandum Opinion and Order is available at https://is.gd/zejITz from Leagle.com. Helen Bhasker, Plaintiff, represented by Kedar Bhasker & Corbin Hildebrandt, Corbin Hildebrandt, P.C. Financial Indemnity Company, Defendant, represented by Kerri Lee Allensworth , O'Brien & Padilla, Alicia M. Santos -- asantos@obrienlawoffice.com -- O'Brien & Padilla, PC & Mark L. Hanover -- mark.hanover@dentons.com -- Dentons, pro hac vice. FLOWERS BAKING: Underpays Sales Managers, Button Suit Alleges ------------------------------------------------------------- RICHARD BUTTON, individually and on behalf of all others similarly situated, Plaintiff v. FLOWERS BAKING CO. OF HENDERSON, LLC; FBC OF HENDERSON, LLC; and DOES 1 through 50, inclusive, Defendants, Case No. 18STCV00865 (Cal. Super., Los Angeles Cty., Oct. 15, 2018) is an action against the Defendants for unpaid regular hours, overtime hours, minimum wages, wages for missed meal and rest periods. Mr. Button was employed by the Defendants as sales manager. Flowers Caking Co. of Henderson, LLC operates as a bakery and manufactures baked products. The Company is headquartered in Henderson, Nevada. [BN] The Plaintiff is represented by: David Yeremian, Esq. Alvin B. Lindsay, Esq. DAVID YEREMIAN & ASSOCIATES, INC. 535 N. Brand Blvd., Suite 705 Glendale, CA 91203 Telephone: (818) 230-8380 Facsimile: (818) 230-0308 E-mail: david@yeremianlaw.com alvin@yeremianlaw.com - and - Walter Haines, Esq. UNITED EMPLOYEES LAW GROUP, PC 5500 Bolsa Ave., Suite 201 Huntington Beach, CA 92649 Telephone: (310) 652-2242 E-mail: whaines@uelg.com FORD MOTOR: Must Face SUV Carbon Monoxide Class Action ------------------------------------------------------ David A. Wood, writing for CarComplaints.com, reports that a Ford Explorer carbon monoxide lawsuit won't be dismissed after the plaintiffs adequately pleaded claims the SUVs have defects that allow dangerous exhaust fumes into the cabins. One plaintiff claims he took his Explorer to a dealer after he smelled exhaust fumes in the SUV. The dealer allegedly drove the vehicle and couldn't detect the fumes, so the plaintiff says technicians refused to repair the Explorer. The other two named plaintiffs claim they smelled exhaust odors in the cabins but never took the vehicles to dealers to have the vehicles examined. The Explorer lawsuit alleges occupants are poisoned by their 2016-2017 Ford SUVs because of defects in the HVAC (heating, ventilation and air conditioning) and exhaust systems. According to the plaintiffs, Ford concealed knowledge of the carbon monoxide problems even though dealers were sent technical service bulletins (TSBs) warning of exhaust fumes. Ford issued TSB 12-12-4 in December 2012 about exhaust fume complaints made by owners of 2011-2013 Ford Explorers, then TSB 14-0130 was issued in July 2014 to include 2014-2015 Explorers. The bulletin referred to exhaust and sulfur smells reported when the auxiliary climate control systems were on. Although the bulletins didn't talk about carbon monoxide dangers, the plaintiffs claim the TSBs prove Ford knew the SUVs had problems and that dealers had no idea how to repair the Explorers. The lawsuit alleges the fumes enter the cabins by way of the drain valves in the liftgates and the sheet metal panels and overlaps. In addition, carbon monoxide allegedly reaches occupants through the rear air extractors, auxiliary air conditioning systems and through faulty joints and seams. While Ford was sending attorneys to court, the automaker was answering questions from the National Highway Traffic Safety Administration (NHTSA) about exhaust fumes and carbon monoxide in Explorers used by police departments. NHTSA opened an investigation in 2016 concerning exhaust fumes entering 2011-2015 Explorers and later expanded the investigation following hundreds of complaints. By July 2017, the government had received about 800 complaints about 2011-2017 consumer and police Explorers. Ford tried to convince the judge to dismiss the lawsuit but the judge ruled the class-action can move forward after the automaker's arguments fell through. Ford told the judge the plaintiffs failed to state a claim for breach of express warranty because they do not allege they experienced a problem within the warranty period, but the judge ruled this isn't the case. According to the ruling, the lawsuit clearly says, "Plaintiffs and members of the Classes experienced the Exhaust Fume Defect within the warranty periods." Ford also urged the judge to dismiss breach of express warranty claims since the plaintiffs did not give Ford mandatory pre-suit written notice according to Pennsylvania law. The law says, "a plaintiff, specifically a buyer, must provide notification of the alleged product defect to the manufacturer prior to bringing suit on a breach-of-warranty theory." However, the judge found under Pennsylvania law the filing of a complaint may constitute sufficient pre-suit notice. Additionally, the judge says a jury should decide whether the plaintiffs gave timely notice of the lawsuit. The plaintiffs also prevailed in their claim concerning violations of express warranties after Ford argued the lawsuit alleges only a design defect which is exempt from the Ford Explorer express warranty. However, while the plaintiffs admit they do allege the vehicles have design defects, the judge says they also allege the exhaust fumes and carbon monoxide could be caused by defects in materials or workmanship. According to the judge, at this stage of the lawsuit the plaintiffs' allegations are sufficient to allege the exhaust fume problems are covered by the express warranties. In its motion to dismiss, Ford contends implied warranty claims fail because the plaintiffs do not plead the exhaust issues occurred during the warranty period of 3 years/36,000 miles. Again the judge ruled this isn't the case because the plaintiffs claim they suffered from the problems soon after purchasing the Explorers. In a separate issue, Ford told the judge the plaintiffs fail at their breach of implied warranty claims because the plaintiffs never allege the exhaust fume problems render the SUVs "un-merchantable." But the judge ruled against this argument by saying the Explorers can't be considered safe to sell if they allow carbon monoxide and exhaust fumes into the cabins. Ford further told the judge the plaintiffs shouldn't label the exhaust fumes as a safety hazard, but the judge found at this stage of the case, the plaintiffs only need to plausibly allege the defects impact the safe operation of the SUVs. According to the judge, the plaintiffs did just that. In the end, Judge Terrence G. Berg also ruled against Ford concerning Magnuson-Moss Warranty Act, unjust enrichment, fraudulent concealment and negligent misrepresentation claims. The Ford Explorer carbon monoxide lawsuit was filed in the U.S. District Court for the Eastern District of Michigan, Southern Division - Suresh Persad, et al., v. Ford Motor Company. The plaintiffs are represented by the Miller Law Firm, P.C., and Kessler Topaz Meltzer & Check, LLP. CarComplaints.com has exhaust complaints about Ford Explorers: 2016 Ford Explorer 2017 Ford Explorer [GN] FORSTER & GARBUS: Court Dismisses Rueda Suit Without Prejudice -------------------------------------------------------------- Judge Ronald A. Guzman of the U.S. District Court for the Northern District of Illinois, Eastern Division, granted the Defendant's motion to dismiss without prejudice the case, MELISSA RUEDA, individually and on behalf of others similarly situated, Plaintiff, v. FORSTER & GARBUS, LLP, Defendant, Case No. 18 C 4586 (N.D. Ill.), under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. The case is a putative class action against a law firm that acts as a debt collector, Forster, for violation of the Fair Debt Collection Practices Act ("FDCPA"). Rueda, alleges that in July 2017, Forster mailed her a collection letter regarding a debt she had incurred on a Target credit card. According to the letter, says the Plaintiff, Forster is not licensed to practice law in the state of Illinois, meaning that Forster cannot sue the Plaintiff. The Plaintiff alleges that Forster's statement violates Section 1692e of the FDPCA for two reasons: (1) it states that Forster has chosen not to sue ('will not commence a suit') instead of the true fact that it cannot sue as a matter of law, and is thus materially deceptive; and (2) it threatens legal action against the Plaintiff that could not be taken, considering that Forster is not licensed to practice law in Illinois, cannot initiate a suit against the Plaintiff, and is not authorized to make legal threats on behalf of companies in Illinois. Judge Guzman finds that the Plaintiff's interpretation of the language "our firm will not commence a suit against you" is idiosyncratic. The language is a negative promise that Forster will refrain from taking legal action; it is simply not reasonably construed as a comment on any reason behind the promise or an implication of choice. On its face, Forster's promise that it would not sue the Plaintiff would not lead even an unsophisticated consumer to believe the opposite -- that Forster was threatening legal action. Next, the Judge considers whether the language "if we are not able to resolve this account with you, our client may consider additional remedies to recover the balance due" can be reasonably interpreted as an implication that Forster was "threatening to take legal action against the Plaintiff that could not be taken, that is, that Forster would sue the Plaintiff. The Judge finds that the Plaintiff's interpretation of the statement is also idiosyncratic, particularly considering that it follows the statement that Forster would not commence a suit against the Plaintiff. The Plaintiff's theory is that the statement deceptively suggests that Forster may sue plaintiff, but that is not a reasonable reading when the entire statement explicitly states the contrary. This is true regardless of the fact that Forster identified itself as a law firm. Therefore, Judge Guzman will dismiss the complaint for failure to state a claim. Forster seeks a dismissal with prejudice, but the Plaintiff asks the Court for leave to amend her complaint in the event of dismissal. Under Federal Rule of Civil Procedure 15, such leave is granted, provided that the Plaintiff can amend consistent with this ruling and the dictates of Federal Rule of Civil Procedure 11. Accordingly, the Judge granted the Defendant's motion to dismiss the complaint, and dismissed without prejudice the complaint. He gave the Plaintiff leave to file an amended complaint by Oct. 23, 2018. A full-text copy of the Court's Oct. 3, 2018 Memorandum Opinion and Order is available at https://is.gd/EJUzGa from Leagle.com. Melissa Rueda, individually and on behalf of others similarly situated, Plaintiff, represented by Celetha Chatman -- cchatman@communitylawyersgroup.com -- Community Lawyers Group, Ltd. & Michael Jacob Wood -- mwood@communitylawyersgroup.com -- Community Lawyers Group, Ltd. Forster & Garbus, LLP, Defendant, represented by Nicole Marie Strickler -- nstrickler@messerstrickler.com -- Messer Strickler, Ltd. & Andrew Galper Fullett -- afullett@messerstrickler.com -- Messer Strickler. FOUNDRY THEATRE: Faces Dominguez ADA Class Action in NY ------------------------------------------------------- A class action lawsuit has been filed against The Foundry Theatre, Inc. The case is styled as Yovanny Dominguez on behalf of himself and all others similarly situated, Plaintiff v. The Foundry Theatre, Inc., Defendant, Case No. 1:18-cv-10161 (S.D. N.Y., Nov. 1, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. The Foundry Theatre, Inc. commission, develop, premiere, and tour theatrical works that explore the impossibilities of theatre. In addition, The Foundry hosts ongoing dialogue series and community collaborations that bring artists together with stakeholders from other communities to unpack issues and ideas of contemporary social and political resonance.[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 GODIVA CHOCOLATIER: Final Approval of Muransky Deal Affirmed ------------------------------------------------------------ In the case, DR. DAVID S. MURANSKY, individually and on behalf of all others similarly situated, Plaintiff-Appellee, JAMES H. PRICE, ERIC ALAN ISAACSON, Interested Parties-Appellants, v. GODIVA CHOCOLATIER, INC., a New Jersey corporation, Defendant-Appellee, Case Nos. 16-16486, 16-16783 (11th Cir.), Judge Beverly B. Martin of the U.S. Court of Appeals for the Eleventh Circuit affirmed the approval of a class-action settlement. Dr. Muransky filed a class action against Godiva for violating the Fair and Accurate Credit Transactions Act ("FACTA"). The operative complaint alleges that after Dr. Muransky made a purchase at a Godiva store, Godiva gave him a receipt that showed his credit card number's first six and last four digits. He sought to represent a class of customers whose credit card numbers Godiva printed on receipts in violation of FACTA. These violations, the complaint says, exposed Dr. Muransky and the class to an elevated risk of identity theft. According to the complaint, Godiva's violation of FACTA was willful, so the class was entitled to statutory and punitive damages, as well as attorney's fees and costs. Godiva moved to dismiss the complaint on the ground that it did not plausibly allege a willful violation of FACTA. The District Court denied Godiva's motion. After that, the parties engaged in discovery then mediated the case. In late November 2015, the parties notified the court of an agreement in principle to settle the case on a class-wide basis. They requested a stay, which the court granted. Two months after that request, Dr. Muransky moved for preliminary approval of the class-action settlement. He explained that the parties agreed to a settlement fund of $6.3 million from which all fees, costs, and class members would be paid. He estimated that class members who submitted a timely claim form would receive around $235 as their pro-rata share of the settlement fund. None of the money would revert to Godiva. Dr. Muransky indicated he intended to apply for an incentive award of up to $10,000 and that the class counsel would move for an award of attorney's fees of up to one-third of the settlement fund, which would be $2.1 million. The District Court granted the motion for preliminary approval, certified the class under Rule 23(b)(3), and approved the form of notice. On Sept. 7, Dr. Muransky moved for final approval of the class settlement and requested an award of $2.1 million in attorney's fees as well as $10,000 as an incentive award. At the court's direction, Dr. Muransky filed a separate motion for attorney's fees and expenses. The Magistrate Judge issued a report and recommendation ("R&R") on the attorney's fee motion just four days later, before the objectors filed opposition briefs. The R&R recommended that the District Court grant the motion and award the full amount of $2.1 million. Although the R&R was issued before the objectors filed opposition briefs, the Magistrate Judge considered Mr. Price's and Mr. Isaacson's previously filed objections to the settlement. In addition, soon after the R&R was issued, the objectors filed briefs in opposition to the motion for attorney's fees. They later filed objections to the R&R as well. On Sept. 21, the District Court held a fairness hearing, during which the objectors' counsel made their case. Soon after the hearing, the District Court approved the settlement and awarded the incentive award and attorney's fees to Dr. Muransky and the class counsel respectively. The court also granted the $10,000 incentive award for Dr. Muransky's "efforts in the case." The objectors appealed. They say the District Court abused its discretion by finding that the notice satisfied Rule 23(h), by awarding $2.1 million in attorney's fees, and by awarding $10,000 as an incentive to Dr. Muransky. Mr. Isaacson raises a fourth issue: he challenges Dr. Muransky's Article III standing to pursue a FACTA claim against Godiva. Judge Martin finds that the complaint alleges two concrete injuries: one based on the statutory violation and its relationship to common law causes of action and another based on Godiva giving Dr. Muransky an untruncated receipt. Mr. Isaacson has not challenged any other aspect of Dr. Muransky's standing, and she concludes the other Article III standing requirements are satisfied. She also concludes that the District Court did not abuse its discretion by awarding attorney's fee, despite the Rule 23(h) violation. Although she concludes that the District Court erred by requiring the class members to object before they could assess the attorney's fee motion, she holds that the error does not warrant reversal under the particular facts of the case. And on the record, she has no reason to think the other unnamed class members would have made arguments besides those made by Mr. Price and Mr. Isaacson. The class members were not therefore prejudiced by the objection schedule established by the District Court. The Judge further concludes that the District Court properly assessed the risks faced by the class and the compensation secured by class counsel. Under the circumstances, the District Court did not abuse its discretion by awarding an above-benchmark percentage of the common fund. The attorney's fee award is therefore affirmed. Finally, Judge Martin holds that the District Court did not abuse its discretion by granting the $10,000 incentive award, finding that the record supports it. At the District Court, Dr. Muransky argued that an incentive award was justified by the size of the settlement. The District Court found that the class settlement confers substantial benefits on the class members. And at the fairness hearing, the District Court observed that Dr. Muransky was subjecting himself to inconvenience and time delays that didn't materialize as much as they might have, but they still were a possibility when he signed on as the class representative. These statements, she says, give meaning to the court's $10,000 incentive award to Dr. Muransky "for his efforts in the case." For these reasons, the Judge affirmed. A full-text copy of the Court's Oct. 3, 2018 Order is available at https://is.gd/xycUTj from Leagle.com. Charles Philip Flick -- charles.flick@bowmanandbrooke.com -- for Defendant-Appellee. Eric Alan Isaacson, for Defendant-Appellee. Michele L. Stocker -- stockerm@gtlaw.com -- for Defendant-Appellee. John W. Davis, for Defendant-Appellee. Linda M. Reck -- reckl@gtlaw.com -- for Defendant-Appellee. Scott D. Owens -- info@ScottDOwens.com -- for Plaintiff-Appellee. Wallace Allen McDonald, for Interested Party-Appellant. Bret Leon Lusskin, Jr., for Plaintiff-Appellee. David S. Almeida -- dalmeida@beneschlaw.com -- for Defendant-Appellee. Brian Melendez -- brian.melendez@btlaw.com -- for Defendant-Appellee. Patrick Christopher Crotty -- patrick.crotty@myfloridalegal.com -- for Plaintiff-Appellee. Shawn Y. Libman -- shawn.libman@bowmanandbrooke.com -- for Defendant-Appellee. Michael S. Hilicki, for Plaintiff-Appellee. Keith J. Keogh, for Plaintiff-Appellee. GOOGLE LLC: Can Compel Arbitration in Trudeau Suit -------------------------------------------------- In the case, MARK TRUDEAU, ET AL., Plaintiffs, v. GOOGLE LLC, Defendant, Case No. 18-cv-00947-BLF (N.D. Cal.), Judge Beth Labson Freeman of the U.S. District Court for the Northern District of California, San Jose Division, (i) granted the Defendant's Motion to Compel Arbitration, (ii) granted in part and terminated as moot in the its Motion to Dismiss Plaintiffs' First Amended Class Action Complaint, and (iii) dismissed the action without prejudice. Trudeau and Troy Martial Arts Inc. bring claims on behalf of themselves and a putative class of others similarly situated in connection with the Defendant's alleged misrepresentations to advertisers using its AdWords program. Google runs an advertising program called AdWords, which allows an advertiser to tie his advertisement to specific keywords, such that users of Google see the advertisement when they search for those keywords. AdWords also allows the advertiser to select certain negative keywords, such that users of Google cannot see the advertisement when they search for those negative keywords. But Trudeau claims that this negative keyword functionality does not work as promised. Specifically, when a user misspells a negative keyword in his or her search, Google allegedly corrects that misspelling and then runs the search results for that word. In that scenario, AdWords displays the advertisement, even though the search includes the negative keyword. Trudeau thus claims that Google makes material misrepresentations about AdWords' functionality. He brings the following causes of action on behalf of himself and a putative class: (1) breach of contract; (2) breach of implied covenant of good faith and fair dealing; (3) violation of the Unfair Competition Law; (4) violation of the False Advertising Law; (5) declaratory relief that the arbitration clause included in the 2017 AdWords Terms of Service is procedurally and substantively unconscionable and unenforceable; and (6) unjust enrichment. Trudeau first began using the AdWords program in January 2012, when he accepted the AdWords Terms of Service via a clickwrap agreement. At the time, the 2006 Terms of Service ("TOS") were in effect. In 2013, Google modified the Terms and pre-existing advertisers were given notice and asked to review and accept these terms. The Terms were modified again in September 2017. Like other versions of the Terms of Service, the 2017 TOS includes provisions relating to changes to the terms. The 2017 TOS also included, for the first time, an arbitration provision and a class action waiver. Google notified Trudeau of the 2017 TOS by both email and an alert in his AdWords account. Trudeau accepted the 2017 TOS on Sept. 15, 2017 and did not attempt to opt out of the arbitration provision. Before the Court is the Defendant's Motion to Compel Arbitration or Alternatively Dismiss Plaintiffs' First Amended Class Action Complaint. The Court heard oral argument on the motion on Sept. 27, 2018. Judge Freeman finds that the 2017 TOS provided a meaningful opportunity to opt out of the arbitration provision. Trudeau does not meaningfully dispute the voluntariness of the opt out procedure. Thus, the arbitration provision is not procedurally unconscionable and thus not unconscionable. As a result, she will dismisses Trudeau's claim for declaratory relief under Rule 12(b)(6). Because the Court has taken judicial notice of the facts relevant to Trudeau's unconscionability argument -- namely, the existence of and procedure for the voluntary opt-out, as well as the 2017 TOS -- the Judge finds that further amendment would be futile and will dismiss with prejudice the claim for declaratory relief. Trudeau argues that, on its face, the new arbitration clause in Section 13(A) does not apply retroactively. The Judge finds that Trudeau's argument misses the mark, as argued by Google. She says nothing about the potential retroactivity or nonretroactivity of future changes to the 2017 TOS changes the fact that Section 13(A)'s scope, by its plain terms, covers claims that accrued prior to enactment. That is, Section 13(A) need not apply retroactively in order to cover previously accrued claims. As such, the Judge finds no conflict or ambiguity in the terms of the 2017 TOS and holds that Section 12 does not preclude Section 13(A) from covering previously accrued claims. Trudeau's final argument is that the arbitration provision is invalid under California's implied covenant of good faith and fair dealing because every Court of Appeal to have considered whether a party may unilaterally modify an arbitration clause to retroactively cover claims that have already accrued has agreed that the covenant bars such retroactive application. The Judge agrees with Google that California law does not bar enforcement of the arbitration provision. Because none of Trudeau's arguments is sufficient to rebut the plain language of the 2017 TOS and because Trudeau expressly accepted those terms and refused to opt out, she finds that he is bound by the arbitration provision. For the foregoing reasons, Judge Freeman granted the Defendant's Motion to Compel Arbitration. Each claim that Trudeau has asserted in the action, except his claim for declaratory relief, is subject to arbitration according to the terms of the 2017 Terms of Service. The Judge granted in part Google's Motion to Dismiss as to Trudeau's claim for declaratory relief that the arbitration provision is unconscionable, and terminated as moot in part as to his other claims which are subject to arbitration. There being no remaining claims outside of arbitration, the entire action is dismissed without prejudice to filing a later action to confirm or vacate the arbitration award. A full-text copy of the Court's Oct. 3, 2018 Order is available at https://is.gd/1ZFPLC from Leagle.com. Mark Trudeau & Troy Martial Arts Inc., Plaintiffs, represented by Randolph Gaw -- gontact@gawpoe.com -- Gaw & Poe LLP, David M. Honigman -- dhonigman@manteselaw.com -- Mantese Honigman, P.C., pro hac vice, Gerard V. Mantese -- gmantese@manteselaw.com -- Mantese Honigman, P.C., pro hac vice & Mark Weylin Poe, Gaw & Poe LLP. Google LLC, Defendant, represented by Michael Graham Rhodes -- rhodesmg@cooley.com -- Cooley LLP, Whitty Somvichian -- wsomvichian@cooley.com -- Cooley LLP, Kelly Elizabeth Fabian -- kfabian@cooley.com -- Cooley LLP & Matthew Michael Brown -- brownmd@cooley.com -- Cooley LLP. GOOGLE LLC: High Court to Take Hard Look at Cypres Deals -------------------------------------------------------- Natalie Rodriguez, writing for Law360, reports that surprise funding in the form of class action settlements has helped legal aid groups close budget shortfalls and provide more services, but a pending U.S. Supreme Court case could change all of that. On Oct. 31, the high court will take a hard look at cy pres deals, in which class action settlements allocate a portion of the funds to nonprofits when the parties and the judge have agreed the money can't be feasibly distributed to class members. Most often, these are the leftover, unclaimed portions of settlement funds. But a challenge to an $8.5 million privacy settlement that has Google LLC paying millions to third parties -- and nothing to class members -- opens the door for the Supreme Court to issue a broad ruling that could wipe out even these driplike funding streams for legal aid organizations that have come to value the small windfalls. Many cy pres opponents argue that the tool is ripe for abuse, allowing lawyers and even defendants to inappropriately funnel money to favored institutions. They also say legal aid organizations are a poor substitute for direct restitution and that the growing popularity of cy pres is encouraging plaintiffs' attorneys to file questionable class actions. But legal aid organizations and other nonprofits are concerned the case, Frank v. Gaos , could wrongfully widen the justice gap. Those backing cy pres -- especially when it's used solely as a tool to deal with leftover settlement cash -- say legal aid groups are the next best use for such funds. "They have this theory that cy pres is some underhanded way that the companies are handing money to organizations. That's not true, and that does a great disservice to the judges approving it," said Sally Greenberg, executive director of the National Consumers League, which does both advocacy and legal services work on behalf of consumers. Justice Gap The use of cy pres -- pronounced "sigh pray" -- in class action settlements is a relatively modern phenomenon. The practice arose about three decades ago out of desire to keep settlement money from reverting to a defendant if there were any unclaimed funds. Often, settlement funds in major class actions never get fully used because many plaintiffs who could claim a share of the cash never bother to, especially if the piece of the pie is just a few dollars. Cy pres took off after Congress in 2005 curtailed the use of coupons in settlements as a substitute for direct cash, a practice that had led to a proliferation of unclaimed funds. These days, about $15.5 million of cy pres distributions are funneled to legal services organizations every year, according to the American Bar Association. Twenty-three states and Puerto Rico have enacted rules authorizing cy pres awards from class action settlements to be distributed to legal services organizations, often at the urging of ABA-backed state access to justice commissions. In Washington state, a change to a court rule helped spur cy pres awards to the Legal Foundation of Washington, which last year used $321,900 in awards to help close a budget shortfall, according to the organization's annual report. The rule has boosted the portion of class action residuals in the state court system specifically earmarked for the organization from 25 percent to 50 percent. But while these residual deals make up the bulk of cy pres arrangements every year, there have also been an increasing number of mega-settlements, such as the Google one at the heart of the pending Supreme Court case, that give more money to nonprofits than to class members. The petitioners in the case, Theodore Frank and Melissa Ann Holyoak, see the Google settlement -- which is funneling money to some of the lawyers' alma maters -- as an abuse of the class action system. The ABA supports neither party in the case, but it filed an amicus brief calling on the high court to find that legal services organizations are proper recipients of cy pres awards. In a climate where legal aid organizations are often struggling for funding, the unexpected windfalls can be a buffer for lean times. "It gives us some stability that we can put some money in the bank, maybe earn some interest on that and use the money also to hire staff, to keep the lights on and keep computers buzzing," Greenberg said. Several legal aid organizations have used sizable cy pres infusions to launch significant programs aimed at broadening access to justice for indigent people. Equal Justice Works launched a fellowship program in 1992 for post-graduate lawyers working in underserved communities with the help of a cy pres award, and the Chicago Bar Foundation uses some of its cy pres awards every year to operate courthouse "help desks" to assist pro se litigants, according to an amicus brief filed by those groups and six other legal aid organizations in support of the respondents. An attorney for the groups declined to comment on the case ahead of the Supreme Court's oral arguments. Equal Justice Works, the Chicago Bar Foundation and other nonprofits have asked the high court to find that cy pres distributions to legal aid organizations are appropriate given courts' developing rules to rein in abuses and legal aid's nexus with the same access to justice principles as class actions. "Legal aid organizations do reasonably approximate class actions because they do the same thing, and that's access to justice. Class actions provide access to justice in a lawsuit that they couldn't pursue individually," said Cindy Cohn, executive director of the Electronic Frontier Foundation. An Inviting Target Mr. Frank and Ms. Holyoak, the petitioners asking the high court to rein in cy pres, contend that this practice of funneling settlement money to nonprofits has opened the door to improper class actions including, they say, the one at the heart of the Supreme Court petition. "The fact that legal aid organizations do good things and could use the money doesn't justify the means," said Frank, who is also director of the Center for Class Action Fairness at the Competitive Enterprise Institute. At the core of their petition, Mr. Frank and Ms. Holyoak are attacking "cy-pres only" settlements like the one in the underlying Gaos v. Google case, which accused Google of selling user search terms containing personally identifiable information to advertisers. The negotiated $8.5 million settlement divided among a potential 130 million class members would yield 4 cents per class member — an administratively infeasible situation, even before attorneys' fees and administrative costs. So instead, the funds will go to a host of nonprofits. Opponents of cy pres are encouraging the justices to use this case to firmly define when and where the tool can be used in class actions. They contend cy pres has encouraged the plaintiffs bar to file expansive class actions that can rarely feasibly provide direct benefits to class members, which they consider an abuse of the class action tool. While Frank does not entirely oppose unclaimed settlement funds going to legal aid organizations, he argues it should only happen when it is entirely impossible to distribute those funds to class members, in order to deter the filing of questionable class actions. Million-dollar cy pres distributions of residuals, such as the $2.7 million leftover from a settlement with Bank of America several years ago in a nationwide securities class action, should not exist, according to Frank. Courts and counsel need to work harder at finding ways to distribute those funds directly to class members, Mr. Frank said. In support of this, Mr. Frank and Ms. Holyoak have also proposed the Supreme Court embrace a so-called "proportionality rule," where class counsel are only paid attorneys fees based on direct benefits to class members and not including cy pres distributions. "It's unfortunate if legal aid organizations haven't found a more honest way to fund themselves," Mr. Frank said. How Much Will It Matter? By and large, most legal aid and other nonprofits contend that they don't -- and can't -- budget for cy pres since it comes in at such sporadic and random intervals. "There have been years where we have gotten significant cy pres and other years where its dropped down to nothing, so it's not something you can count on at all," said F. Paul Bland Jr., the executive director of Public Justice, a legal advocacy nonprofit that files lawsuits -- including class actions -- on issues such as civil liberties, consumer rights and workers rights. The funds rarely make up a majority or even a significant chunk of legal aid groups' annual budgets. A review of tax return forms from the last three years for several nonprofits that disclosed cy pres contributions, including the Legal Aid Society of New York and Greater Boston Legal Services, showed cy pres usually accounted for less than 10 percent of an organization's budget. In many ways, the Supreme Court has already helped curb some of the worst abuses of cy pres. In 2013, it declined to take up Marek v. Lane , an appeal of a $10 million settlement in a class action over Facebook's short-lived Beacon program, which broadcast users' purchases. The deal was controversial for much the same reason the Google case is in that cash was not given directly to consumers but instead was directed to various organizations. But in maintaining the Ninth Circuit's decision not to meddle in the settlement, Chief Justice John Roberts made the unusual move of issuing a statement, saying the court would be willing to take on a future case that provided the "opportunity to address more fundamental concerns surrounding the use of such remedies in class action litigation." Several organizations and experts have noted a decline in cy pres-heavy settlements since that message from the court, which in turn has already forced legal aid organizations to rely less on such distributions. Last year, the Chicago Bar Foundation rejiggered its budget because starting in 2014, cy pres -- which had formerly been a stable revenue source responsible for about $1 million, or 20 percent, of its annual budget -- declined significantly, according to its 2017 annual report. Among the adjustments it made were a mix of reductions to grants, operating expenses and other programs. Additionally, as a greater spotlight has been placed on cy pres abuses -- such as funds that are allocated to charities affiliated with judges or class counsel involved in the settlement -- many nonprofits have become more careful about the distributions they accept. Public Justice, for example, has turned away cy pres proposals that they felt would be wrongly coming to them at the expense of the class members or other groups that were better aligned with the class's interests. In one instance, the group realized that plaintiffs' counsel had the names and addresses for class members but chose to subtract a proposed cy pres award earmarked for Public Justice from the larger settlement while it was still being distributed. "I think they felt we did good work and were trying to be supportive. We just felt like it was the wrong approach," Mr. Bland said. "We felt it was inappropriate." Still, cy pres distributions can have a significant impact in aiding consumers, particularly in lower income brackets, through legal aid organizations and make more sense than letting that money revert back to a defendant, Bland said. "There are people who want to eliminate cy pres entirely, which we think would be a mistake and terrible policy," Mr. Bland said. [GN] GRAY TELEVISION: John O'Neil Suit Moved to N.D. Illinois -------------------------------------------------------- The class action lawsuit titled JOHN O'NEIL JOHNSON TOYOTA, LLC, individually and on behalf of all others similarly situated, Plaintiff v. GRAY TELEVISION, INC.; HEARST COMMUNICATIONS; NEXSTAR MEDIA GROUP, INC.; TEGNA INC.; TRIBUNE MEDIA COMPANY; SINCLAIR BROADCAST GROUP, INC., Defendants, Case No. 1:18-cv-06883 (D. Md., Sept. 19, 2018), was removed from the U.S. District Court for the District of Maryland, to the U.S. District Court for the Northern District of Illinois on October 15, 2018. The District Court Clerk assigned Case No. 1:18-cv-02913 (N.D. Ill., Oct. 15, 2018) to the proceeding. The Case is assigned to the Hon. Deborah K. Chasanow. Gray Television, Inc., a television broadcast company, owns and operates television stations and digital assets in the United States. The company was formerly known as Gray Communications Systems, Inc. and changed its name to Gray Television, Inc. in August 2002. Gray Television, Inc. was founded in 1897 and is headquartered in Atlanta, Georgia. The Plaintiff is represented by: Paul Mark Sandler, Esq. Eric R. Harlan, Esq. SHAPIRO SHER GUINOT & SANDLER 250 West Pratt Street, Suite 2000 Baltimore, Maryland 21201 Telephone: (410) 385-0202 Facsimile: (410) 539-7611 E-mail: pms@shapirosher.com erh@shapirosher.com - and - Jonathan W. Cuneo, Esq. Victoria Romanenko, Esq. CUNEO GILBERT & LaDUCA, LLP 507 C Street, N.E. Washington, DC 20002 Telephone: (202) 789-3960 E-mail: jonc@cuneolaw.com vicky@cuneolaw.com - and - Don Barrett, Esq. Katherine Barrett Riley, Esq. Sarah Starns, Esq. David McMullan, Esq. BARRETT LAW GROUP, P.A. P.O. Box 927 404 Court Square Lexington, MS 39095 Telephone: (662) 834-2488 E-mail: dbarrett@barrettlawgroup.com KBRiley@BarrettLawGroup.com sstarns@barrettlawgroup.com dmcmullan@barrettlawgroup.com - and - Shawn M. Raiter, Esq. LARSON KING, LLP 2800 Wells Fargo Place 30 East Seventh Street St. Paul, MN 55101 Telephone: (651) 312-6500 E-mail: sraiter@larsonking.com GRENDENE NEW YORK: Olsen Files Suit Alleging ADA Breach -------------------------------------------------------- A class action lawsuit has been filed against Grendene New York, L.L.C. The case is styled as Thomas J. Olsen individually and on behalf of all other persons similarly situated, Plaintiff v. Grendene New York, L.L.C., Defendant, Case No. 1:18-cv-06138 (E.D. N.Y., Nov. 1, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. Grendene New York LLC is a privately held company in New York, NY and is a Single Location business, categorized under Restaurants.[BN] The Plaintiff is represented by: Christopher Howard Lowe, Esq. Lipsky Lowe LLP 630 Third Avenue New York, NY 10017 Phone: (212) 392-4772 Fax: (212) 444-1030 Email: chris@lipskylowe.com HARVEY WEINSTEIN: Moves to Pause Canosa Sexual Harassment Case -------------------------------------------------------------- Eriq Gardner, writing for Hollywood Reporter, reports that the embattled movie mogul points to how judges in civil litigation against Bill Cosby allowed his criminal case to proceed first. On Oct. 27, Harvey Weinstein made a move to pause a lawsuit brought by Alexandra Canosa, a former associate producer on the Netflix show Marco Polo, who alleges being the victim of sexual harassment. "Mr. Weinstein should not be forced to make the difficult choice between being prejudiced in the civil litigation, if he asserts his Fifth Amendment privilege, or from being prejudiced in the criminal litigation if he . . . waives that privilege in the civil litigation," states a motion. Mr. Weinstein is facing a wrath of litigation, and he previously attempted to stay lawsuits brought by insurers. This is his first move to pause a lawsuit from one of his female accusers. According to a declaration from Weinstein attorney Benjamin Brafman, New York prosecutors have provided formal notice that they will seek to introduce evidence of "uncharged similar acts of sexual conduct at trial" and that means Weinstein "cannot give testimony and evidence concerning these allegations regardless of whether [Canosa] is involved" in the criminal case. Mr. Weinstein is leaning on precedent in the Bill Cosby scandal. His attorneys point to how judges overseeing civil lawsuits against Cosby granted a motion for a stay. "The California Superior Court's decision in Judy Huth v. William Henry Cosby, Jr. is instructive," states the motion. "The defendant in that case was in a very similar situation as Mr. Weinstein, in that he was being sued civilly and criminally prosecuted for sexual assault. In Huth, the court granted defendant's motion to stay pending a resolution of a related criminal proceeding over plaintiff's objection that the facts and allegations in the civil case were distinct from those in the criminal matter." The Canosa lawsuit was previously stayed not because of the criminal case but rather because of the Chapter 11 bankruptcy of The Weinstein Company. (In her legal action, Ms. Canosa is also suing Weinstein's former studio, along with members of its board.) Ms. Canosa got the case unpaused, but not before attorneys for other women suing TWC argued against a lifting of the stay on the grounds that the company's insurers weren't picking up the tab for defending this one and it would deplete resources, potentially hampering their own recovery. So far, Mr. Weinstein hasn't moved for a similar pause in the class action, but the newest move in the Canosa case could portend that's about to occur. [GN] HEALTHRIGHT LLC: Nelson Files Labor Class Action in Florida ----------------------------------------------------------- A labor class action lawsuit has been filed against Healthright, LLC. The case is styled as Candie Nelson, Plaintiff v. Healthright, LLC, Defendant, Case No. 8:18-cv-02678-JSM-CPT (M.D. Fla., Nov. 1, 2018). HealthRight, LLC provides health care solutions and services for its members. It offers on-demand doctor visits, dental care, health advocacy, lab testing, prescription services, imaging services, in-person doctor discounts, and business services.[BN] The Plaintiff is represented by: Wolfgang M. Florin, Esq. Florin Gray Bouzas Owens, LLC 16524 Pointe Village Dr Ste 100 Lutz, FL 33558 Phone: (727) 254-5255 Fax: (727) 483-7942 Email: wolfgang@fgbolaw.com - and - Miguel Bouzas, Esq. Florin Gray Bouzas Owens, LLC 16524 Pointe Village Dr Ste 100 Lutz, FL 33558 Phone: (727) 254-5255 Fax: (727) 483-7942 Email: Miguel@fgbolaw.com HEALTHSOUTH BAKERSFIELD: Mortimer Files Suit in Cal. Super. Ct. --------------------------------------------------------------- A class action lawsuit has been filed against Healthsouth Bakersfield Rehabilitation Hospital, LLC. The case is styled as Dannette Mortimer, individually, on behalf of herself and on behalf of all persons similarly situated, Plaintiff v. Healthsouth Bakersfield Rehabilitation Hospital, LLC, a limited liability company, Defendant, Case No. BCV-18-102761 (Cal. Super. Ct., Kern Cty., Nov. 2, 2018). HealthSouth Bakersfield Rehabilitation Hospital is a 86-bed rehabilitation hospital that provides a higher level of comprehensive rehabilitation services.[BN] The Plaintiff is represented by: Norman B. Blumenthal, Esq. HOUSTON, TX: Attorneys Look for More Flood Victims for Class-Action ------------------------------------------------------------------- Katherine Mozzone, writing for Fox 8 Local First, reports that attorneys representing victims in the August 2017 flood want more people to join a class-action suit. They believe there's enough evidence to prove that the Sewerage and Water Board (S&WB) should pay out. One attorney met with affected residents Oct. 10. "Public transportation, walking, catching Lyft and Uber," explained Antranette Scott. Scott found ways of getting around after losing her car in the August 5 flood. "I got home from work, took a little nap. I woke up, thundering, lightning and I open my front door and my car. The water had already passed my door," Scott recalled. When it was all said and done, the water was past the hood, near the windshield. "It was a total loss," said Scott. Just five months from having it all paid off, Scott couldn't even start over. The insurance money wasn't enough to buy her a new car. Yet, that's not why she decided to get on board a class-action lawsuit against the Sewerage and Water Board. "We're all working-class people, but for me, the city needs to be held accountable for the people who live here," Scott said. Attorneys filed the suit in August, just a day before the city released a report prepared by a Houston engineering company detailing what went wrong during the months leading up to the flood. It addresses the power generator turbines, the operational pumps that failed and the readiness of the equipment. "To my mind, the Sewerage and Water Board is a dysfunctional organization that is failing to serve the citizens of the city, and I think this root cause analysis report is some of the purported evidence that establishes that fact," said Attorney Michael Whitaker, Esq. Whitaker is an attorney for some of the plaintiffs in the suit. He met with flood-affected residents to ensure this becomes a class-action case and to get more people to sign up - people like David Donze, who suffered property damage in the flood. "It's encouraging. I think a class-action lawsuit is the way to go because you've got a lot of people that have been victimized, really, by Sewerage and Water Board's negligence," explained Donze. We reached out to Sewerage and Water Board. Representatives sent us a statement that reads, in part: "We appreciate the thorough examination of the ABS Group into the Sewerage & Water Board. The...analysis outlined many challenges the Sewerage & Water Board faced and gave us direction forward. Since the release of the report, the Sewerage & Water Board has taken major steps to improve the agency including heavy investment over the last year, major improvements to pumps and turbines... and many organizational changes. These reforms and others have put New Orleans in a much better position with much better resources than we were in August 2017." Representatives go on to say the board is proud of its advancements but realize there's more work to do. Attorneys have 120 days to get the case class-action certified. They have to show the court there are a lot of claims, and they're all virtually identical.[GN] IXYS CORP: Sanchez Securities Suit Dismissed with Leave to Amend ---------------------------------------------------------------- Judge William H. Orrick of the U.S. District Court for the Northern District of California dismissed with leave to amend the case, JERRY SANCHEZ, Plaintiff, v. IXYS CORPORATION, et al., Defendants, Case No. 17-cv-06441-WHO (N.D. Cal.). Sanchez alleges that Defendants IXYS and various of its officers and directors violated federal securities laws by issuing a proxy prior to IXYS's merger with Littelfuse, Inc. that contained material omissions, rendering it false and misleading. Sanchez was a stockholder of IXYS, a Delaware corporation headquartered in California that was in the technology and semiconductor business. Littelfuse, which produces fuses, semiconductors, polymers, ceramics, relays, and sensors for the electronics, automotive, and industrial markets, approached IXYS to express interest in exploring a strategic combination between the two companies. After several months of discussions, IXYS hired Needham & Co. in June 2017 to serve as IXYS' financial advisory for the potential sale of IXYS. After receiving a non-binding offer from Littelfuse, IXYS solicited bids from 13 potential acquirers. Littelfuse eventually submitted a written offer of $23 per share. On August 25, the IXYS board of directors met to review Littelfuse's offer. Needham presented its financial analysis of the proposed transaction. After further discussion, the IXYS board of directors declared it advisable for IXYS to enter into the merger agreement. On Dec. 13, 2017, IXYS filed its proxy statement with the Securities and Exchange Commission, recommending that IXYS stockholders vote in favor of the merger. The proxy did not disclose the particular research analyst projections for Littelfuse presented by Needham to Littelfuse management, which Littelfuse management confirmed represented reasonable estimates of the future financial performance of Littelfuse. It also did not disclose the individual multiples Needham utilized in its selected companies' analysis. Sanchez's Amended Class Action Complaint brings two causes of action. First, he argues that the IXYS violated Section 14(a) of the Securities and Exchange Act of 1934 and SEC Rule 14a-9. Sanchez claims that IXYS' proxy was materially incomplete and misleading due to its failure to disclose: (1) the research analyst projections for Littelfuse presented by Needham to Littelfuse management, which Littelfuse management confirmed represented reasonable estimates of the future financial performance of Littelfuse and (2) the individual multiples Needham calculated in connection with its selected companies analysis. Second, Sanchez argues that individual Defendants violated Section 20(a) of the Securities and Exchange Act of 1934 because they had the ability to exercise control over and did control a person or persons who violated Section 14(a) and Rule 14a-9 as alleged. The Defendants move to dismiss because the omitted information was already publicly available to Sanchez in the total mix of information or otherwise not material. Judge Orrick agrees with the Defendants. He finds that Sanchez has failed to state a claim under Section 14(a) or Rule 14a-9 because the proxy omissions are immaterial. As there is no primary violation, Sanchez has failed to state a claim under Section 20(a). Accordingly, he granted IXYS's motion to dismiss. Sanchez may have leave to amend within 20 days of the date of the Order. A full-text copy of the Court's Oct. 2, 2018 Order is available at https://is.gd/yjIKlJ from Leagle.com. Jerry Sanchez, Individually and on Behalf of all Others Similarly Situated, Plaintiff, represented by David Eldridge Bower -- dbower@monteverdelaw.com -- Monteverde & Associates PC & Juan E. Monteverde -- jmonteverde@monteverdelaw.com -- Monteverde & Associates PC, pro hac vice. IXYS Corporation, Defendant, represented by Stephen R. DiPrima -- SRDiPrima@wlrk.com -- Wachtell Lipton, pro hac vice, Andrew Richard Gray -- andrew.gray@lw.com -- Latham Watkins LLP, Michele D. Johnson -- michele.johnson@lw.com -- Latham & Watkins & Nathaniel Cullerton -- NDCullerton@wlrk.com -- Wachtell Lipton, pro hac vice. Nathan Zommer, Uzi Sasson, Donald L. Feucht, Samuel Kory, S. Joon Lee, Timothy A. Richardson, James M. Thorburn, Kenneth D. Wong & IXYS, LLC, Defendants, represented by Andrew Richard Gray, Latham Watkins LLP & Michele D. Johnson, Latham & Watkins. KEHE DISTRIBUTORS: Settlement in Russell Suit Has Final Approval ---------------------------------------------------------------- In the case, STEPHEN RUSSELL, an individual, Plaintiff, v. KEHE DISTRIBUTORS, INC. and DOES 1-100, inclusive, Defendants, Case No. 2:17-CV-01182-JAM-GGH (E.D. Cal.), Judge John A. Mendez of the U.S. District Court for the Eastern District of California granted Russell's Motion for Final Approval of Class and Collective Action Settlement and Motion for Attorneys' Fees, Costs, and Service Payment. Russell's Motion for Final Approval and Fee Motion came on for hearing on Oct. 2, 2018, at 1:30 p.m. Having fully and carefully considered Plaintiff's Motions, the memoranda and declarations in support thereof, the Parties' Settlement Agreement, and the oral arguments made at the hearing, the Judge finds that the Settlement was reached after arm's-length negotiations between the Parties. As embodied in the terms of the Settlement, he finally approved the Settlement of the action as fair, reasonable, and adequate and in compliance with all applicable requirements of the Federal Rules of Civil Procedure and any other applicable law, and in the best interests of the Class Members. The Judge confirmed Russell as the Class Representative; Mayall Hurley P.C., by and through Lead Counsel Robert J. Wasserman, William J. Gorham, III, Nicholas J. Scardigli, Vladimir J. Kozina, and John P. Briscoe, as the Class Counsel; and Atticus Administration, LLC as Administrator of the Settlement. The class of employees covered by the Parties' Settlement consists of (i) all hourly, nonexempt employees of the Defendant that (a) received non-discretionary bonuses and commissions, (b) worked given overtime during at least one pay period from June 7, 2013 through April 7, 2018, and (c) the non-discretionary bonuses or commissions were not included in their regular rate of pay when calculating their overtime, and (ii) all California employees of Defendant that received one or more electronic wage statements between June 7, 2016 and July 10, 2017. The Judge finds that final certification as to the following subclasses, collectively referred to the California Class is appropriate under Rule 23: A. California Regular Rate Class: All hourly, non-exempt employees of Defendant that worked in California, and (a) received non-discretionary bonuses or commissions, (b) worked over 8 hours in a day or 40 hours in a week during at least one pay period from June 7, 2013 through April 7, 2018, and (c) the non-discretionary bonuses or commissions were not included in their regular rate of pay when calculating their overtime. B. California Former Employee Class: All hourly, non-exempt employees of Defendant that worked in California, and (a) received non-discretionary bonuses or commissions, (b) worked over 8 hours in a day or 40 hours in a week during at least one pay period from June 7, 2013 through April 7, 2018, (c) the non-discretionary bonuses and commissions were not included in their regular rate of pay when calculating their overtime, and (d) no longer work for the Defendant. C. California Wage Statement Class: All employees of the Defendant that worked in California and both (a) were paid by direct deposit and (b) received their wage statement(s) electronically rather than along with live paychecks during at least one pay period from June 7, 2016 through July 10, 2017 and are not part of the California Regular Rate Class or the California Former Employee Class. Pursuant to 29 U.S.C. Section216(b), the Judge certifies the FLSA Class, conditionally certified in the Court's Order of Preliminary Approval, and defined as all hourly, non-exempt employees of Defendant that worked outside of California, and (a) received non-discretionary bonuses or commissions, (b) worked over 40 hours in a week during at least one pay period from June 7, 2013 through April 7, 2018, and (c) the non-discretionary bonuses or commissions were not included in their regular rate pay when calculating their overtime ("FLSA Class"). Judge Mendez concludes that adequate notice was provided to the vast majority of the class. Of the 2,188 FLSA Class Members, 619 individuals claimed $163,718.29; or 41% of the $396,270 made available to them. The Settlement contemplates a PAGA allocation of $20,000 of which 75% ($15,000) will be paid to the LWDA, and the remaining 25% ($5,000) will be returned to the QSF for distribution to Participating Class Members. The Judge also approved the payment to the Administrator in the amount of $26.233. The proposed Service Payment of $7,500 or .55% of the Maximum Settlement Amount, to the Plaintiff for his service as the Class Representative is denied. The Service Payment of $5,000 to the Plaintiff as the Class Representative is approved. The Class Counsel's request of attorneys' fees in the amount of 25% of the Maximum Settlement Amount, or $337,500, and declared cost of $19,622.65 are approved. The Judge entered the Final Judgment is on the Parties' Settlement. A full-text copy of the Court's Oct. 2, 2018 Order is available at https://is.gd/cSRqtr from Leagle.com. Stephen Russell, Plaintiff, represented by Robert Joshua Wasserman -- rwasserman@mayallaw.com -- Mayall Hurley, PC, John Paul Briscoe -- jbriscoe@mayallaw.com -- Mayall Hurley, PC, Nicholas John Scardigli -- nscardigli@mayallaw.com -- Mayall Hurley, PC & William J. Gorham, III -- wgorham@mayallaw.com -- Mayall Hurley, PC. KeHE Distributors, Inc., Defendant, represented by Jeffrey Paul Fuchsman -- jfuchsman@brgslaw.com -- Ballard Rosenberg Golper & Savitt LLP & John Bruce Golper -- jgolper@brgslaw.com -- Ballard Rosenberg Golper & Savitt LLP. Edward Andrade & Marcus Thompson, Intervenors, represented by David Elliot Webb Gonzalez -- elliot@lfjpc.com -- Lawyers for Justice, PC. KENYA POWER: Consumers Angered Over Out of Court Settlement ----------------------------------------------------------- Evelyne Musambi, writing for Nairobi News, reports that activists have renewed calls to get Kenya Power to compensate all customers who received inflated bills. The #SwitchoffKPLC hashtag has been revived after lawyer Apollo Mboya and the power distributor agreed on an out of court settlement that angered Kenyans. Jerotich Seii, who was working closely with Mr Mboya in the class action suit, claimed the out of court deal was struck in her absence. She has now partnered with Wanjeri Nderu to give a new life to the campaign. Ms Seii assured Kenyans that Kenya Power will not run away from refunding all consumers who were overcharged. "Below is a non-exhaustive list of outstanding demands; Demand 1: Fair consumer tariffs -- not #OimekeTariffLies. Demand 2: Refund all consumers who paid excess bills as part of the illegal recovery of Sh 10.1B -- KPLC 2017 Annual Report. Demand 3: No more 3rd party vendor cartels & mobile money systems tampering. Demand 4: End of KPLC dominance & consumer freedom to choose preferred Distributor. Demand 5: A systems & financial forensic audit of KPLC since 1999, & of ERC since 2007," she wrote. The #SwitchoffKPLC campaign lost steam after Mr Mboya agreed with Kenya Power that customers would be given 30 days to appeal inflated bills, that the power distributor will stick to the gazetted tariffs and that the company pays all costs incurred in filing the suit. Kenyans lashed out at the lawyer, saying it was a class action suit that required participating Kenyans to have a say on what would be agreed out of court. The participants have since regrouped under Ms Seii and will open up avenues to have a stronger and all inclusive class action that will ensure all overcharged customers get refunded and electricity costs lowered. [GN] LANDRY TREBBI: Honeywell Files ADA Suit in S.D. Florida ------------------------------------------------------- A class action lawsuit has been filed against Landry Trebbi Investment Corp. The case is styled as Cheri Honeywell individually and on behalf of all others similarly situated, Plaintiff v. Landry Trebbi Investment Corp. a Florida Corporation, Defendant, Case No. 0:18-cv-62687-WPD (S.D. Fla., Nov. 5, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. Landry Trebbi Investments Corporation provides investment management services.[BN] The Plaintiff is represented by: Jessica Lynn Kerr, Esq. Jessica L.Kerr, P.A. dba The Advocacy Group 200 S.E. 6th Street, Suite 504 Fort Lauderdale, FL 33301 Phone: (954) 282-1858 Fax: (844) 786-3694 Email: service@advocacypa.com LG ELECTRONICS: Acosta Sues Over Defective Washing Machines ----------------------------------------------------------- Joann Acosta, Farrah Gilbert, and Daniel Schwartz, on behalf of themselves and all others similarly situated, Plaintiffs, v. LG Electronics USA, Inc., Defendant, Case No. 2:18-cv-15584 (D. N.J., November 1, 2018) seeks to recover damages sustained by consumers arising from a manufacturing defect that causes the tops of most LG top-loading washers to rust within months or a few shorts years of purchase, which ruins clothes due to rust stains and paint chips, rendering the washers useless. The complaint relates that hundreds or thousands of consumers have reported that the washer tops develop rust around the bleach dispenser within just months or a few short years of purchase. Once it begins, the rust inevitably spreads throughout the top of the washer to the point that rust seeps into the laundry bin and stains clothing during the wash cycle. Mr. Daniel Schwartz is a citizen of California and on May 25, 2013, Mr. Schwartz purchased an LG washer, model number WT5070CW, bearing serial number 304KWQW09244. Ms. Farrah Gilbert is a citizen of Missouri and on November 15, 2014, Ms. Gilbert purchased an LG washer, model number WT5480CW, bearing serial number 409PNBM07197 from a Home Depot in Springfield, Missouri. Ms. Joann Acosta is a citizen of California and on November 10, 2016, Ms. Acosta purchased an LG washer, model number WT7600HKA and bearing serial number 609KWRE88166, and an LG dryer from a HomeDepot in Santa Maria, California. LG Electronics USA, Inc. is a Delaware corporation that sells home appliances, mobile communications devices, and other electronics in the United States. LG's primary corporate offices are located at 1000 Sylvan Avenue, Englewood Cliffs, NJ, 07632. Defendant maintains a website at www.LG.com/us. Defendant markets, distributes, and sells its washers throughout the United States. All significant decision concerning the design, marketing, and sale of the washers at issue were made at Defendant's New Jersey headquarters.[BN] The Plaintiffs are represented by: Timothy N. Mathews, Esq. Benjamin F. Johns, Esq. Zachary P. Beatty, Esq. CHIMICLES & TIKELLIS LLP One Haverford Centre 361 West Lancaster Avenue Haverford, PA 19041 Phone (610) 642-8500 Facsimile (610) 649-3633 Email: tnm@chimicles.com MACY'S INC: Court Narrows Claims in Hawes Suit ---------------------------------------------- In the case, SARA HAWES, et al., Plaintiffs, v. MACY'S INC., et al., Defendants, Case No. 1:17-cv-754 (S.D. Ohio), Judge Timothy S. Black of the U.S. District Court for the Southern District of Ohio, Western Division, granted in part and denied in part Macy's' motion to dismiss for lack of standing and failure to state a claim. Hawes and Amy Hill are unsatisfied customers who claim that the bed sheets they purchased in California and Missouri, respectively, were labeled with inflated thread counts. Plaintiff Hawes claims that her 900 thread-count sheets were actually 249 thread-count and Plaintiff Hill claims that her 1000 thread-count sheets were "far less." The Plaintiffs claim that Defendants Macy's, AQ Textiles, LLC, and Creative Textile Mills Pvt. Ltd. are responsible for deceiving, misleading, and inducing them -- and the American consumer public -- into buying these bed sheets with false, inflated thread counts. The Plaintiffs claim that Macy's was aware that consumers associate higher thread counts with being higher in quality, being softer, and being more comfortable. Macy's allegedly made misleading statements regarding the bedding products on its website and in its retail stores. The Plaintiffs claim Macy's knew or should have known that thread counts were being inaccurately reported. They allege they have suffered because the products they purchased with inaccurate thread counts did not perform with the same characteristics as sheets with the thread counts as advertised, and that the products were not fit for use. The Plaintiffs assert 10 claims against Macy's: (1) violation of the Magnuson-Moss Warranty Act ("MMWA"); (2) violation of the Missouri Merchandising Practices Act ("MMPA"); (3)-(5) violations of the California Unfair Competition Law ("UCL"), (6) violation of California's Fair Advertising Law ("FAL") (California Business and Professions Code); (7) violation of the California Consumer Legal Remedies Act ("CLRA"); (8) breach of the implied warranty of merchantability; (9) breach of express warranty; and (10) fraud. The civil action is before the Court upon Macy's' motion to dismiss for lack of standing and failure to state a claim and the parties' responsive memoranda. Judge Black granted in part and denied in part Defendant Macy's' motion to dismiss. He (i) denied the Defendant's motion to dismiss for lack of standing as to products not actually purchased by the Plaintiffs; (ii) granted the Defendant's motion to dismiss Counts I and VIII, and dismissed those claims with prejudice; (iii) granted the Defendants' motion to dismiss Counts VII and IX, and dismissed those claims without prejudice; and (iv) denied the Defendants' motion to dismiss Counts II, III, IV, V, VI, X , and those claims will proceed. Among other things, the Judge finds that the Plaintiffs have alleged facts demonstrating that a reasonable consumer could be misled by Macy's thread count misrepresentations, and the Plaintiffs have alleged those facts with sufficient specificity. Accordingly, Macy's motion to dismiss Counts II, III, IV, V, VI, VII, X for failing to plead with particularity is denied. He also finds that the Plaintiffs have failed to adequately plead a claim for breach of express warranty and violation of the CLRA because they failed to properly plead notice. First, in the Plaintiffs' opposition to the motion to dismiss, they state that they did provide notice to Macy's on June 27, 2017, over four months before filing the complaint. However, the complaint contains no such allegation. Second, the Plaintiffs argue that prelitigation notice was not necessary because it would have been futile. But they do not cite any case law indicating that the notice requirement can be waived for futility. While the Court finds that the Plaintiffs failed to provide notice for breach of warranty and under the CLRA, dismissal with prejudice of a damages claim filed without the requisite notice is not required to satisfy this purpose. Accordingly, the Defendants' motion to dismiss Counts VII and IX is granted and those counts are dismissed without prejudice. A full-text copy of the Court's Sept. 28, 2018 Order is available at https://is.gd/IFpfT1 from Leagle.com. Sara Hawes, Individually, and on behalf of all others similarly situated & Amy Hill, Individually, and on behalf of all others similarly situated, Plaintiffs, represented by Charles E. Schaffer -- cschaffer@lfsblaw.com -- Levin Sedran & Berman, pro hac vice, Drew T. Legando -- drew@lgmlegal.com -- Landskroner - Grieco - Merriman, LLC, Brendan S. Thompson , Cuneo Gilbert & LaDuca, LLP, David L. Black , Cuneo Gilbert & LaDuca LLP, pro hac vice, Stuart L. Cochran -- stuart@stecklerlaw.com -- Steckler Gresham Cochran PLLC, pro hac vice & Jack Landskroner -- jack@lgmlegal.com -- Landskroner - Grieco - Merriman, LLC. Macy's, Inc., Defendant, represented by Andrew L. Rodenbough -- arodenbough@brookspierce.com -- Brooks Pierce, pro hac vice, Beth A. Bryan -- bryan@taftlaw.com -- Taft Stettinius & Hollister, Jennifer K. Van Zant -- jvanzant@brookspierce.com -- Brooks Pierce, pro hac vice, Reid L. Phillips -- rphillips@brookspierce.com -- Brooks Pierce, pro hac vice & Ryan C. Fairchild -- rfairchild@brookspierce.com -- Brooks Pierce, pro hac vice. MCCARTHY BURGESS: Sued Over Deceptive Collection Practices ---------------------------------------------------------- Kristine Gonzales-Abella, writing for Southeast Texas Record, reports that a consumer has filed a class-action lawsuit against McCarthy, Burgess & Wolff, citing misrepresentations and false threats. Terry Hamilton, individually and on behalf of all others similarly situated, filed a complaint on Oct. 2, in the U.S. District Court for the Eastern District of Texas, against McCarthy, Burgess & Wolff Inc., alleging that the Ohio corporation violated the Fair Debt Collection Practices Act. The plaintiff alleges that on Oct. 16, 2017, and Nov. 20, 2017, she received a computerized collection letter from defendant, offering to settle her past due account for 45 percent off. As a result of defendant's misrepresentations, she has suffered fear, stress, mental anguish, emotional stress and loss of time as well as attorneys' fees paid for advice regarding this matter. The plaintiff holds McCarthy, Burgess & Wolff, Inc. responsible because the defendant allegedly offered her discount with the same exact deal twice and implying on both times that the offer would not be extended again. The plaintiff requests a trial by jury and seeks actual and statutory damages, costs, and reasonable attorneys' fees and such other and further relief as deemed just and proper. She is represented by Joel S. Halvorsen of Halvorsen Klote in St. Louis. U.S. District Court for the Eastern District of Texas Case number 6:18-cv-00521[GN] MGT CAPITAL: Levi & Korsinsky Files Class Action ------------------------------------------------ Levi & Korsinsky, LLP disclosed that class action lawsuits have commenced on behalf of shareholders of MGT Capital Investments Inc. Shareholders interested in serving as lead plaintiff have until the deadlines listed to petition the court and further details about the cases can be found at the links provided. There is no cost or obligation to you. MGT Capital Investments Inc. (OTCMKTS: MGTI) Class Period: October 9, 2015 - September 7, 2018 Lead Plaintiff Deadline: November 27, 2018 Join the action: https://www.zlk.com/pslra-1/mgt-capital-investments-inc-loss-form?wire=3 The lawsuit alleges: MGT Capital Investments Inc. made materially false and/or misleading statements and/or failed to disclose that: (1) Defendants were engaged in an illegal pump-and-dump scheme to artificially inflate MGT Capital's stock price; (2) the "Scheme Defendants"--Defendants Ladd, Honig, Stetson, Brauser, O'Rourke, and Groussman--had a history of engaging in illegal conduct in connection with the purchase and sale of securities; (3) the Scheme Defendants were a “group”, pursuant to Section 13 of the Exchange Act; (4) the Scheme Defendants exercised control over the Company; (5) the Company's acquisition of D-Vasive Inc. was part of Defendants' illegal pump-and-dump scheme to artificially inflate MGT Capital's stock price; (6) Defendants' illicit scheme caused MGT Capital to make false and misleading statements, which would result in governmental and regulatory scrutiny; (7) the scheme would result in the delisting of MGT Capital's stock from NYSE MKT; and (8) as a result, Defendants' statements about MGT Capital's business and prospects were materially false and misleading and/or lacked a reasonable basis at all relevant times. To learn more about the MGT Capital Investments Inc. class action contact jlevi@levikorsinsky.com. You have until the lead plaintiff deadlines to request the court appoint you as lead plaintiff. Your ability to share in any recovery doesn't require that you serve as a lead plaintiff. Joseph E. Levi, Esq. Levi & Korsinsky, LLP 55 Broadway, 10th Floor New York, NY 10006 Telephone: (212) 363-7500 Toll Free: (877) 363-5972 Fax: (212) 363-7171 Email: jlevi@levikorsinsky.com [GN] MISSOURI: Juvenile Parole Process Unconstitutional, Court Says -------------------------------------------------------------- RJ Vogt, writing for Law360, reports that two years after the U.S. Supreme Court's landmark Montgomery decision ordered resentencing or parole hearings for thousands of inmates sentenced to life without parole as juveniles, litigation like a recent class action by Missouri prisoners shows how some states are struggling to offer those inmates meaningful opportunities for release. In one of the latest examples of the battle between convicts, their advocates and the state agencies that control their freedom, a Missouri federal judge ruled in October that the state's parole process for juveniles sentenced to life in prison fails to consider their maturity and rehabilitation, in violation of their constitutional rights. The Oct. 12 ruling came in a class action brought by more than 90 Missouri Department of Corrections prisoners initially given mandatory life without parole sentences as juveniles. The Supreme Court found such mandatory sentencing unconstitutional in 2012's Miller v. Alabama ruling, a finding it then made retroactive in 2016's Montgomery v. Louisiana decision. Montgomery added that affected prisoners "must be given the opportunity to show their crime did not reflect irreparable corruption," either via parole or resentencing. After Montgomery was decided, Missouri lawmakers passed legislation enabling those serving juvenile life without parole, or JLWOP, sentences to petition for parole after 25 years. But according to U.S. District Judge Nanette K. Laughrey, the parole board has not met "the requirement that maturity and rehabilitation be considered" for such petitioners, 85 percent of whom have been denied a release date. "Permitting the board to base a denial of parole . . . on the 'circumstances of the offense' alone necessarily authorizes the board to disregard evidence of the inmate's subsequent rehabilitation and maturity -- in contravention of the Supreme Court's edict," the judge wrote. The case is one of several in federal and state courts around the country that challenge the ways different states have responded to the high court rulings. According to class counsel Amy E. Breihan of the MacArthur Justice Center, states like Pennsylvania have decided to resentence the so-called "Miller kids," while others, like Missouri, have taken the parole route. "Inevitably, there's a disagreement over 'What does this parole consideration have to look like?'" she said. "In Missouri, for all intents and purposes, they were really doing things the way that they were doing for everybody else. And that just was not adequate. So unfortunately, I think that the decision by the Supreme Court in Montgomery kind of helped create some of the discrepancy as far as how to implement the decision." Ms. Breihan's named clients in the Missouri case -- Norman Brown, Ralph McElroy, Sidney Roberts and Theron Roland -- were all sentenced to mandatory JLWOP for homicide offenses before they turned 18. Each petitioned for parole after Missouri passed its post-Montgomery law, but according to court documents, they were largely blocked from presenting evidence of the way they have matured during the past quarter-century behind bars. The inmates said they were only allowed one "delegate" in their hearings, who was barred from discussing anything other than "issues related to transition to the community," such as home plans. The board also kept the prisoners and their attorneys from viewing the parole files guiding the hearings and the board's ultimate decision. All four petitioners were denied parole. For Judge Laughrey, this lack of access to things like victim and prosecutor statements, as well as the muzzling of petitioners' delegates, meant "the Miller-impacted inmate cannot have the 'meaningful' opportunity that the law requires." Her ruling gave the Missouri DOC 60 days to present a compliance plan to bring its process for Miller kids in line with constitutional requirements. The plan must also include a proposal for giving a "meaningful and realistic opportunity for release" to those whose prior bids were already denied. "The Supreme Court has said repeatedly, 'Youth are categorically different from adults,'" Ms. Breihan said. "So it stands to reason that when they have parole hearings, their parole hearings should be categorically different from adult parole hearings, as a matter of constitutional law." This month's ruling could be a sign of things to come, according to Heather Renwick, legal director for the Campaign for the Fair Sentencing of Youth. In Flores et al. v. Stanford et al., a New York federal suit by a class of Miller kids against the Empire State's parole board, the prisoners have brought allegations similar to the Missouri prisoners', claiming parole board officers regularly deny release to juvenile lifers "with short conclusory opinions citing only factors present at the time of conviction" without speaking to whether they demonstrate reform. "District court judges will have to look to the specific facts in the states where other litigation has been brought, but I think that this decision sets an important, if not legal precedent, I think conceptual precedent, that will be cited in other cases around the country," Renwick said. In its defense, the Missouri DOC had argued Montgomery's citation to a Wyoming statute, which permitted juvenile homicide offenders to apply for parole after 25 years but did not provide any special parole procedures, demonstrated that there are no special requirements for Miller kids in parole proceedings. But Judge Laughrey quoted the sentence immediately following that citation in her order, noting that the high court included maturity as a factor when it said allowing parole ensures that "juveniles . . . who have since matured" will not be forced to serve a disproportionate sentence. The Missouri DOC declined to comment on whether it planned to comply with the court's order or appeal. Matthew Knepper of Husch Blackwell LLP, who served as pro bono co-counsel for the plaintiffs, said that while the October ruling is validating, "the battle's not over." Ms. Breihan filed a motion to clarify whether she, Mr. Knepper and the other attorneys for the Miller kids would be allowed to weigh in on what the proper remedy should be. "It's a nice victory to have someone say that Miller does apply to my clients, and they do get meaningful relief," Mr. Knepper said. "That's what we've been searching for for a long time. I never dreamed when we took these cases on initially, that six years later, we'd still be battling it. The state of Missouri has 60 days . . . we'll see what their plan is." The Missouri DOC is represented by Michael Joseph Spillane and Andrew J. Crane of the Missouri Attorney General's Office. The inmates are represented by Amy E. Breihan of the MacArthur Justice Center at St. Louis, and Matthew D. Knepper -- matt.knepper@huschblackwell.com -- Carlota Hopinks-Baul -- coty.hopinks-baul@huschblackwell.com -- Denyse L. Jones, Jordan T. Ault and Sarah L. Zimmerman of Husch Blackwell LLP. The case is Norman Brown et al. v. Anne L. Precythe et al., case number 2:17-cv-04082, in the U.S. District Court for Western Missouri. The related case in New York is Flores et al. v. Tina M. Stanford et al., case number 7:18-cv-02468, in the U.S. District Court for Southern New York. [GN] MONEYMUTUAL LLC: Bid to Dismiss 2nd Amended Rilley Suit Denied -------------------------------------------------------------- In the case, Scott Rilley, Michelle Kunza, Venus Colquitt-Montgomery, Jonathan Aldrich, and Kendra Buettner, on behalf of themselves and those similarly situated, Plaintiffs, v. MoneyMutual, LLC, Selling Source, LLC, and PartnerWeekly, LLC, Defendants, Civil No. 16-4001 (DWF/LIB) (D. Minn.), Judge Donovan W. Frank of the U.S. District Court for the District of Minnesota denied the Defendants' Motion to Dismiss Plaintiffs' Second Amended Class Action Complaint in its entirety for lack of personal jurisdiction. The Defendants collectively are entities that operate a lead-generating business for various payday lenders. Consumers would go to the Defendants' website to fill out an application, and then the Defendants would sell the application to lenders. The lenders would independently decide whether to lend consumers money. The Plaintiffs are consumer-borrowers who have filed a purported class action against the Defendants related to the payday loans. They first filed their complaint in Minnesota state court, naming only MoneyMutual as a Defendant. MoneyMutual moved to dismiss for lack of personal jurisdiction. In Rilley v. MoneyMutual, LLC ("Rilley I"), the Minnesota Supreme Court affirmed the Dakota County District Court's and Minnesota Court of Appeals' findings of personal jurisdiction. After the U.S. Supreme Court denied MoneyMutual's petition for certiorari,the Plaintiffs amended the complaint to add Defendants PartnerWeekly and Selling Source. The Plaintiffs then filed their First Amended Complaint, bringing claims for: (1) violating Minnesota's payday-lending statutes; (2) violating Section 1962(c) of the federal Racketeer Influenced and Corrupt Organizations Act ("RICO"); (3) violating the Minnesota Consumer Fraud Act, and the Minnesota False Statement in Advertising Act; (4) violating the Minnesota Uniform Deceptive Trade Practices Act; (5) unjust enrichment; (6) civil conspiracy and aiding and abetting; and (7) alter ego/piercing the corporate veil. The Defendants then removed the case to the Court and again moved to dismiss for lack of personal jurisdiction. In the Aug. 30, 2017 Order, the Court denied the motion, but dismissed the RICO claim under Fed. R. Civ. P. 12(b)(6). Since the Aug. 30, 2017 Order, discovery has also revealed facts clarifying the nature of Selling Source's relationship with MoneyMutual and PartnerWeekly, as well as its role in the payday-lending scheme. Selling Source is the sole owner of MoneyMutual and PartnerWeekly. PartnerWeekly and Selling Source have shared numerous employees, including: (1) Glenn McKay, who was simultaneously President of PartnerWeekly and CEO of Selling Source; and (2) a Chief Technology Officer. Finally, the counsel for Selling Source provides input for and approves the content of e-mails sent to consumers, and Selling Source employees are responsible for sending out the e-mails. On March 21, 2018, the Plaintiffs filed their Second Amended Complaint, which added Plaintiffs Jonathon Aldrich, Venus Colquitt-Montgomery, and Kendra Buettner, omitted the previously dismissed claims, and did not add any new claims or theories of recovery. The Defendants now move to dismiss the Second Amended Complaint in its entirety. Judge Frank finds that (i) the nature and quality of the Defendants' contacts with Minnesota weigh in favor of exercising personal jurisdiction; (ii) the quantity of the Defendants' contacts weighs in favor of exercising personal jurisdiction; (iii) the Plaintiffs' causes of action are sufficiently related to the Defendants' contacts with the forum state; and (iv) exercising personal jurisdiction over the Defendants is reasonable and does not offend traditional notions of fair play and substantial justice. The Judge also finds that the discovery has revealed evidence sufficient for the Court to conclude that it is proper to exercise personal jurisdiction over Selling Source. Selling Source wholly facilitates the Minnesota-related payday-lending activities of MoneyMutual and PartnerWeekly. Evidence also indicates that Selling Source and PartnerWeekly also shared a Chief Technology Officer. Taken together, these facts indicate that for the purposes of jurisdiction, Selling Source is sufficiently indistinguishable from MoneyMutual and PartnerWeekly. He therefore concludes that the Defendants have sufficient minimum contacts with Minnesota to support the exercise of personal jurisdiction. Based upon the foregoing, Judge Frank denied the Defendants' Motion to Dismiss Plaintiffs' Second Amended Class Action Complaint. A full-text copy of the Court's Oct. 3, 2018 Memorandum Opinion and Order is available at https://is.gd/pGZLZu from Leagle.com. Scott Rilley, on behalf of themselves and those similarly situated, Michelle Kunza, on behalf of themselves and those similarly situated, Linda Gonzales, individually and on behalf of the putative classes & Michael Gonzales, individually and on behalf of the putative classes, Plaintiffs, represented by E. Michelle Drake -- emdrake@bm.net -- Berger & Montague, P.C., Jeffrey Laurence Osterwise -- josterwise@bm.net -- Berger & Montague, P. C., pro hac vice, John G. Albanese -- jalbanese@bm.net -- Berger & Montague, PC & Mark L. Heaney -- mark@heaneylaw.com -- Heaney Law Firm, LLC. Venus Colquitt-Montgomery, on behalf of themselves and those similarly situated, Jonathon Aldrich, on behalf of themselves and those similarly situated & Kendra Buettner, on behalf of themselves and those similarly situated, Plaintiffs, represented by John G. Albanese, Berger & Montague, PC. MoneyMutual, LLC, Selling Source, LLC & PartnerWeekly, LLC, Defendants, represented by Christina Rieck Loukas -- cloukas@winthrop.com -- Winthrop & Weinstine, PA, Donald J. Putterman -- ayoung@plylaw.com -- Putterman Landry & Yu LLP, pro hac vice, Joseph M. Windler -- jwindler@winthrop.com -- Winthrop & Weinstine, PA, Michelle L. Landry, Putterman Landry & Yu LLP, pro hac vice & Tobias G. Snyder, Putterman Landry & Yu LLP, pro hac vice. NANO: Judge Tosses Crypto Investor's Class Action ------------------------------------------------- Molly Jane Zuckerman, writing for Coin Telegraph, reports that a class action lawsuit brought on by a crypto investor against the development team of altcoin Nano was dismissed by a New York judge. According to court documents, the lawsuit alleged that the developers had lured him to trade in Nano on a platform that lost hundreds of millions of dollars' worth of the cryptocurrency. The lawsuit had asked that Nano do a "rescue fork" to return investors' missing money. However, in the dismissal, the judge notes that the case had lacked merit. [GN] NEW YORK, NY: M.F. Files ADA Suit v. NYCDOE ------------------------------------------- A class action lawsuit has been filed against New York City Department of Education. The case is styled as M. F., a minor, by and through his parent and natural guardian Yelena Ferrer, M. R. a minor, by and through her parent and natural guardian Jocelyne Rojas, I. F. a minor, by and through her parent and natural guardian Jennifer Fox, on behalf of themselves and a class of those similarly situated, American Diabetes Association, Plaintiffs v. New York City Department of Education, New York City Department of Health and Mental Hygiene, Office of School Health, City of New York, Bill de Blasio in his official capacity as Mayor of New York City, Richard A. Carranza in his official capacity as Chancellor of the New York City Department of Education, Oxiris Barbot in her capacity as Acting Commissioner of the New York City Department of Health and Mental Hygiene, Roger Platt in his official capacity as Chief Executive Officer of the Office of School Health, Defendants, Case No. 1:18-cv-06109 (E.D. N.Y., Nov. 1, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. The New York City Department of Education is the department of the government of New York City that manages the city's public school system. The City School District of the City of New York is the largest school system in the United States, with over 1.1 million students taught in more than 1,800 separate schools. The New York City Department of Health and Mental Hygiene is the department of the government of New York City responsible for public health along with issuing birth certificates, dog licenses, and conducting restaurant inspection and enforcement. The New York City Board of Health is part of the department.[BN] The Plaintiffs appear pro se. NEW YORK: DOE Faces Class Action Over Bullying Problems ------------------------------------------------------- Noah Manskar, writing for Patch, reports that Bobbi Jo Gonzalez's son and daughter have never known a school without bullies. A group of kids started tormenting her son, now 13, when he was in first grade at P.S. 97Q in Woodhaven, Queens. They would call him "cancer boy" whenever he got his hair cut short and threatened to physically hurt him. "Sometimes they were nice, but they wanted me to let my guard down so that way they could take advantage of it," said the boy, whose name Patch is not publishing to protect his privacy. "Since then, I never have." School staff apparently tried to wrangle one of the bullies with detention, but that didn't stop them. Gonzalez said she felt "brushed off" by the school's principal when she raised concerns. "She just completely ignored the whole situation," the Woodhaven mom said. The teen's story is one of hundreds of examples of unchecked bullying that causes millions of students to stay home from school every day. Patch is taking a yearlong look at this confounding national crisis with a goal of providing parents like Gonzalez the tools they need to help their children navigate these horrible situations, which affect as many as one in three middle and high school students. Gonzalez is one of three New York City parents who described to Patch how their kids endured bullying for months or years amid uneven responses from school staff. The parents said they felt dismissed when they reported behavior that harmed their children. In one case, a principal waited more than a month to report that a kid had threatened suicide, according to a parent and city records. The Department of Education said it is investigating the cases in which schools did not take appropriate action and "will ensure necessary disciplinary action is taken." "Schools are required to treat any allegation of bullying with the utmost seriousness, including immediately reporting and thoroughly investigating each incident, and anything less than that is unacceptable," DOE spokeswoman Miranda Barbot said in a statement. But the parents that spoke to Patch aren't alone. A "pervasive" failure to remedy bullying in schools across the city led to a class-action lawsuit against the DOE in 2016. "The problems were acute," said Jim Walden, a lawyer who represented the plaintiff parents and interviewed dozens of parents and students during his work on the case. "They ranged from simply ignoring the complaint, sometimes blaming the victim, sometimes retaliating against parents whom they believed were squeaky wheels." School staff sometimes fail to nip bullying in the bud, minimizing small incidents that grow into more harmful patterns of behavior, said Dawn Yuster of Advocates for Children of New York, an education advocacy group. And even though kids may be suspended or otherwise punished, the schools sometimes don't do enough to address the problem, Ms. Yuster said. "A lot of times principals and schools don't really know what to do to stop it," said Ms. Yuster, the director of AFC's School Justice Project. ". . . They will try different things but they're not effective and they don't really know the best strategies to use to address it." The DOE has touted its efforts to tackle bullying and give training to staff. The department last fall pledged to spend $8 million on anti-bullying initiatives after a Bronx high schooler who was reportedly bullied stabbed two of his classmates, killing one of them. The DOE also agreed to investigate bullying more promptly and track it more closely in a settlement to Walden's federal lawsuit filed this March. Parents have options for reporting bullying beyond going directly to the school, the department said, including an online form that was launched in April. "We recognize the deep impact bullying can have on the emotional and academic well-being of our students, and it has absolutely no place in our schools," Ms. Barbot said. But the problem has persisted. More than 8 in 10 sixth- through 12th-graders reported that bullying happened in their schools last year, an all-time high rate, according to a city comptroller's report published in June. School staff get annual training on the DOE's anti-bullying policies and procedures, the department said. That includes entering allegations into the DOE's central tracking system within 24 hours; conducting an investigation within five school days; and determining the appropriate follow-up for the involved students. The city puts $47 million a year toward "school climate" initiatives and mental health support, including hiring 100 consultants that lack on-site mental health services, the DOE said. The department also touted its Respect for All initiative, through which students are provided information about bullying at the start of each school year. Every school also has posters with contact information for its Respect for All liaison, who handles bullying reports, the DOE said. "We are making investments that foster safe and supportive environments in our schools, and remain laser-focused on this work," Ms. Barbot said. But the amount of resources the DOE has put toward fighting bullying is "woefully deficient," Ms. Yuster said, often leaving staff unequipped to recognize and address it. And the department's broken system seemed to extend more protection to the students who bully than to their targets, Walden said, leaving parents angry and frustrated while their kids were left with emotional scars. "Some of these kids were still torn up. They felt as though they were marked," Walden said. "They felt completely helpless and hopeless." 'I Was Like The Enemy' A student saying he wants to take his own life should be enough to spark immediate action. But Renee Di Re says it wasn't enough when it came to her son. The boy first said he wanted to suffocate himself in his third-grade classroom at PS/IS 266 on Feb. 7, 2017, his mom said. But the guidance counselor who was in the room never reported it as DOE regulations require. The principal heard the boy, then 8, make a similar threat the next day but didn't file a report about the incident for more than a month, according to Di Re and DOE records she shared with Patch. Di Re's son, a special education student, had struggled with bullying since the previous fall. He's heavy-set and tall for his age, his mom said, so he'd get teased because he's not very fast or athletic. One day he found a note in his chair with a blunt message: "You're dumb." "He'd come home agitated, wouldn't want to do homework, would rip up his papers from school, wanted no part of any extracurricular activities in the school," she said. "He just wanted nothing to do with school work or school." The boy's parents noticed his mood change around Halloween, and he revealed what was dealing with a few weeks later, Di Re said. But teachers shrugged off or ignored the bullying when it was brought to their attention, she said. When the boy brought the note in his chair to one teacher, she "didn't even look at it, just put it away," his mother said. When he asked for his seat to be moved in music class because another kid was bothering him, the teacher told him to "get along," according to Di Re. The official account is that the boy handed the folded-up Post-It note to the teacher at the end of the day. The teacher met with his parent and gave a group lesson that discussed with the kids how notes can make someone feel good or bad. In the music class, the teacher tried working with the group Di Re's son was in but ultimately changed his seat, according to DOE records and Di Re. The school's principal, Christina Catalano, didn't report the suicide threat until March 21, more than a month after it happened, records show. That was the day after Di Re said she met with a parent support group about the matter. The principal or another designated staffer should have reported it within one school day under one of the DOE's Chancellor's Regulations. Ms. Catalano resigned in August 2017, according to the DOE. Allegations against the other staff involved were unsubstantiated, Di Re said. The guidance counselor denied ever hearing the boy make the initial suicide threat in the classroom, DOE records show. Records from an investigator's interview with Di Re's son show him saying he "doesn't recall" if someone was bullying him, and that he "does not recall saying he was going to hurt himself in front of his class." But Di Re said her son admitted to his initial threat the following day. Another parent whose student was in the class also corroborated what happened, she said. The boy was likely "intimidated" when the investigator interviewed him months after the incident, she said. Ms. Catalano concluded the incidents that the boy's parents described as bullying and cited as the cause of his suicide threat were separate occurrences that were addressed appropriately by each involved teacher. Mr. Walden, the attorney, encountered some cases that involved that kind of "segmentation," he said, "where DOE found multiple slices of bread and tried to argue that it wasn't a loaf." Di Re says she was ostracized after calling attention to the situation, which she believes the school mishandled. "No one would talk to me anymore," Di Re said. "I walked in, no hellos, no nothing. So I was like the enemy." The bullying finally stopped for Di Re's son in the spring of last year, she said, when he physically defended himself against his primary nemesis. But Di Re is troubled by issues with bullying at the school and started a Facebook page last year to air them. Other parents have pulled their kids out of the school, she said, but she wants things to actually change and has kept her son there. "First you have to educate yourself, know your rights," she said. "And second, you can't make them discount it." "They discount it, they blow it off, because they don't want to have to make it bullying, because then they have to report it, their numbers go down," she added. "It's all about the numbers." 'Like Talking To A Wall' Bobbi Jo Gonzalez's children's struggle with bullying unfolded around 2011, a few months into their first school year at PS 97Q in Woodhaven. She said her daughter, then a kindergartner, was having trouble with another kid who would slap her, pinch her and take her things. It had been going on for about a week when Gonzalez approached the principal. At the meeting, the principal took out a legal pad to take notes, but only jotted down "bits and pieces" of the 10-minute conversation, Gonzalez said. "Talking to her was pretty much like talking to a wall," Gonzalez said. "But in my opinion you'd probably get a better response from the wall." The principal told the mom that she'd talk to the culprit, and claimed she did in a follow-up conversation a couple days later, Gonzalez said. But the problem continued. Gonzalez's son revealed his own bullying problem a couple weeks after her initial chat with the principal, she said. It started with name-calling and escalated in later years with pushing and the "cancer boy" taunts, his mother said. Things got so bad that at one point in his fifth-grade year he made up an alarming story about a neighbor killing a cat to try to "get away" from the school, his mom said. "I said, 'Why exactly did you make up that story?' I already knew but I wanted to hear it in his words," she said. "He's like, ' 'Cause I don't like it there and I don't want to go there no more.' " Gonzalez and her husband brought the bullying concerns to school staff frequently but got the "run-around" from the principal and teachers who never proactively followed up, she said. An assistant principal offered more, Gonzalez said, outlining what she had done to address the problem. One of her son's bullies got detention once or twice, she said. But nothing ultimately put a stop to the torment. Gonzalez asked for the children to be transferred out of their classes and away from the kids who were tormenting them, she said, but they were stuck — both are special-education students who had to be in a certain classroom setting and could not be moved. The kids still deal with bullying at their middle school, Gonzalez said, where the staff addresses it more effectively. But the toll on their emotional well-being continues -- her son was diagnosed with anxiety in fifth grade "because of that school," Gonzalez said, and he and her daughter are both more sensitive to teasing. "Even when somebody just calls him a name, he'll come home and he'll be frustrated and upset and then he'll start crying," she said. 'Outcast' James was an active, well-liked kid who's now in fifth grade. He's a soccer player, an actor and a hip-hop dancer. But a one-time friend-turned-bully made him into something of an "outcast" at school, said his mother, who requested anonymity to avoid causing any trouble for her son. Patch is using a pseudonym for the boy to protect his privacy. The torment started in April 2017, when James and his bully were in third grade at PS 173Q in Fresh Meadows. James didn't tell his parents what was going on at first, though his mother said she noticed unusual bruises on his legs when he would go to shower. It turned out James was being punched and abused, his mom said. A friend who saw he wasn't sticking up for himself was the first to report it to a teacher, she said. James "likes to be friends with everyone," his mother said. "He's got a great personality and he felt that if you had to tell on someone then you get called down to the principal's office." He didn't want that, she said. "But finally when the teacher approached me and told me what had been going on, that's when I started to open my eyes and question everything," his mom added. The physical attacks continued through the end of the third grade. His mother said she was present for one herself in May 2017 -- the bully chased James in a playground outside the school and hit him with a back scratcher. The mom said she and her son went to the school and said, "What kind of nonsense is this?" The two kids were separated into different classes at the beginning of the following school year, but James' mother said the bully took to a new tactic -- isolating him on the playground. When James' friends came over to play with him, she said, the bully would command them to stay away. "They don't have a choice," his mother said. He "knows how to push people's buttons." James' mother and her husband approached the principal and assistant principals four or five times about the bullying of their son, she said. The responses seemed uneven. To her knowledge, the bully was once given detention but may not have actually gone. Staff told James' mom they would try to keep an eye on the kids outside the school, she said. Regardless, the bullying continued. "All they've done is put a Band-Aid on this," she said. "This kid has not been reprimanded at all." The bully would deny the allegations when school staff call him in to discuss them, James' mother said, and so would other kids. In one case, James came home with his new shoes stepped on and dirtied, his mom said, but school staff told her they couldn't do anything because there was no witness. "I think if something was happening the kid would stop, and obviously the kid is not stopping." To add insult to injury, James' mother said staff started avoiding her in the school. She's considered moving the boy to a different school for middle school, she said, as she worries the treatment will continue when James and the bully both move up. "I shouldn't be running away because of this bully," she said. "But he hasn't been taught a lesson, and apparently this kid will do whatever he wants." Through the end of the 2018, Patch will continue its in-depth look at society's roles and responsibilities in bullying, which can lead to a child's unthinkable decision to end their own life, in hopes we might offer solutions that save lives. [GN] OCCIDENTAL PETROLEUM: Bid to File Cox Deal Under Seal Denied ------------------------------------------------------------ In the case, ROBER COX, individually and on behalf of all others similarly situated, Plaintiff, v. OCCIDENTAL PETROLEUM CORP. and DOES 1 through 10, inclusive, Defendants, Case No. 1:17-cv-00913-LJO-JLT (E.D. Cal.), Judge Lawrence J. O'Neill of the U.S. District Court for the Eastern District of California denied without prejudice the parties' requests (i) for dismissal, and (ii) to file the settlement agreement under seal. On Sept. 25, 2018, the parties filed a stipulation and proposed order for voluntary dismissal of the class and collective actions in the case. The class action claims arise under California law, while the collective action claim is brought under Section 16(b) of the Fair Labor Standards Act ("FLSA"). The parties represent that the claims of the named Plaintiff and the two Plaintiffs who joined the collective action have been settled, and seek dismissal with prejudice as to those three Plaintiffs and dismissal without prejudice as to all other individuals. Judge O'Neill explains that collective action claims for back wages under the FLSA can be settled or compromised only through a repayment plan supervised by the Secretary of Labor under 29 U.S.C. Section 216(c), or by a settlement agreement that has been approved by a district court under 29 U.S.C. Section 216(b). As the fairness of the settlement cannot be determined if the Court is unable to review the agreement, the parties are directed to file the agreement with the Court. Accordingly, he denied without prejudice the request for dismissal. The parties suggest that the settlement agreement should be filed under seal. As the Court has found in a prior case, the Judge holds that a motion to approve a settlement and enter a stipulated judgment is a dispositive motion closely related to the merits of a case, and may be sealed only for compelling reasons. He is not aware of any basis on which to conclude that the proposed settlement is not more than tangentially related to the merits of the case, and accordingly the presumptive compelling reasons requirement applies to the sealing request made. The parties have also not yet demonstrated any compelling reasons to justify sealing the settlement. Accordingly, he also denied without prejudice the parties' request to file the settlement agreement under seal. A full-text copy of the Court's Oct. 2, 2018 Decision and Order is available at https://is.gd/X4HeM1 from Leagle.com. Robert Cox, Individually and on behalf of all others similarly situated, Plaintiff, represented by Lauren Elizabeth Braddy -- lauren@a2xlaw.com -- Anderson2x, PLLC, pro hac vice, Stephanie E. Yasuda -- syasuda@yoonlaw.com -- Law Offices of Kenneth Yoon, William Clifton Alexander -- clif@a2xlaw.com -- Anderson2x, PLLC, pro hac vice & Kenneth Yoon, Law Offices Of Kenneth H. Yoon. Occidental Petroleum Corporation, Defendant, represented by Laura E. Hayward -- lhayward@littler.com -- Littler Mendelson & R. Brian Dixon -- bdixon@littler.com -- Littler Mendelson. PAY-O-MATIC: Faces Nixon ADA Class Suit in NY --------------------------------------------- A class action lawsuit has been filed against The Pay-O-Matic Corp. The case is styled as Donald Nixon on behalf of himself and all others similarly situated, Plaintiff v. The Pay-O-Matic Corp., Defendant, Case No. 1:18-cv-06132 (E.D. N.Y., Nov. 1, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. The Pay-O-Matic Corporation provides check cashing, money transfer, and billpayment services. It offers prepaid card, direct deposit, prepaid, money order, deposit/withdrawal, and other services.[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 PIZZA HUT: Can Compel Arbitration in Hobon FLSA Suit ---------------------------------------------------- In the case, JOHN HOBON, individually and on behalf of all others similarly situated, Plaintiffs, v. PIZZA HUT OF SOUTHERN WISCONSIN, INC., d/b/a PIZZA HUT, et al., Defendants, Case No. 17-cv-947-slc (W.D. Wis.), Magistrate Judge Stephen L. Crocker of the U.S. District Court for the Western District of Wisconsin (i) granted the Defendants' consolidated motion to compel those Plaintiffs with agreements to arbitrate with PHSW to arbitrate their individual claims pursuant to the Federal Arbitration Act; and (ii) stayed their motion to strike the collective and class allegations contained in the Third Amended Complaint to allow the Plaintiffs an opportunity to file an amended complaint that redefines the proposed class. Before the court are two motions by the Defendants: (1) a motion under Fed. R. Civ. P. 12(b)(3) and the Federal Arbitration Act to compel the Plaintiffs who signed arbitration agreements to arbitrate their individual claims; and (2) a motion brought under Fed. R. Civ. P. 12(f) and 23 for an order striking the collective and class allegations contained in the Third Amended Complaint. The case is a putative collective and class action for damages alleging violations of the Fair Labor Standards Act ("FLSA"), and Wisconsin and Illinois wage and hour laws. Hobon brings the collective and class action for damages on behalf of himself and all other similarly situated current and former employees who work or have worked as delivery drivers at Pizza Hut of Southern Wisconsin, Inc., doing business as Pizza Hut, or of its Wisconsin and Illinois affiliates since Dec. 20, 2014. Hobon alleges that PHSW subjected its delivery drivers to a vehicle reimbursement policy that failed to reasonably approximate their actual expenses, in violation of the FLSA, and Wisconsin and Illinois wage and hour laws. The complaint was filed on Dec. 20, 2017. On May 21, 2018, the Supreme Court issued its decision in Epic Systems Corp. v. Lewis, holding that arbitration agreements must be enforced as written and are not unenforceable merely because they prohibit employees from engaging in a collective or class action. As it turns out, three of the eight Plaintiffs who have opted in to the suit so far and about 65 of the entire putative class executed such arbitration agreements with PHSW. In reliance on Epic Systems, on June 21, 2018, PHSW filed the instant motion to compel these opt-in Plaintiffs to arbitrate their claims on an individual basis and for an order striking the class allegations contained in the Third Amended Complaint. The Plaintiffs concede that they have agreements with PHSW to arbitrate employment disputes on an individual basis and that these agreements are now enforceable under Epic Systems, but say PHSW waived its right to arbitrate by willingly participating in the litigation on a collective basis. The Plaintiffs say that by participating in pretrial conferences, allowing the court to set a schedule and engaging in discovery without mentioning arbitration or asking the Court to stay the case pending a decision from the Supreme Court in Epic Systems, PHSW has indicated anintent to proceed in a judicial forum that is inconsistent with a right to arbitrate. Judge Crocker finds that the circumstances of the case do not support a finding that PHSW engaged in conduct inconsistent with its right to arbitrate. First, PHSW raised the possibility of arbitration in its answer and affirmative defenses. Second, until the Supreme Court issued its ruling in Epic Systems, PHSW had no "right" of arbitration to assert. Third, the fact that PHSW participated in scheduling conferences and discovery without mentioning arbitration or demanding a stay pending a decision in Epic Systems does not suggest that it abandoned its wish to arbitrate. Finally, the Plaintiff has not been prejudiced by PHSW's delay in moving to compel arbitration. In sum, having considered the totality of the circumstances, the Judge find sthat PHSW's conduct in the case does not support a finding of waiver. In response to PHSW's motion to strike, the Plaintiff asserts that there remains a readily identifiable class of 502 delivery drivers who did not sign an arbitration agreement. Therefore, the Plaintiff asks that, in lieu of the Court striking the class allegations in their entirety, he be allowed seven days to amend his complaint to narrow the defined class to those drivers for whom PHSW cannot produce a signed arbitration agreement. PHSW does not object to this request, but reserves its right to both contest the anticipated motions for conditional class certification and Fed. R. Civ. P. 23 certification in the event the court allows plaintiff to amend. Accordingly, not later than Oct. 10, 2018, the Plaintiff should file an amended complaint which redefines the class to include only those PHSW delivery drivers who did not sign arbitration agreements with PHSW. The parties are advised to confer on the wording of the amended complaint to avoid further delays in the case. As a final matter, the Plaintiff asks the Court (in the event it does not find waiver) to strike the arbitration agreements' confidentiality provision, which provides that the parties agree to submit their disputes to confidential binding arbitration, instead of going to Court. Apart from extracting quotes from various courts that have been critical of confidentiality provisions, the Plaintiff does not develop any specific facts or even suggest what state's law should control in deciding the question of unconscionability, which is a common law contract defense governed by state law principles. Further, it is not clear that the alleged unfairness of the confidentiality provision is an appropriate subject for the Court, rather than the arbitrator. Absent more than general arguments from the Plaintiff as to why confidentiality provisions are disfavored, the Judge declines to strike the confidentiality provision. For the reasons set forth, Judge Crocker granted the Defendants' motion to compel, and stayed the motion to strike the collective and class allegations contained in the Third Amended Complaint to allow the Plaintiffs an opportunity to file an amended complaint that redefines the proposed class. Not later than Oct. 10, 2018, the Plaintiff will file a Fourth Amended complaint, redefining the class to include only those PHSW delivery drivers who did not sign arbitration agreements with PHSW. In the event the Plaintiff files an amended complaint as ordered, the Defendants' motion to strike the collective and class allegations contained in the Third Amended Complaint will be denied as moot. The Judge denied the Plaintiff's request for an order striking the confidentiality provision of the Agreement to Arbitrate. A full-text copy of the Court's Oct. 3, 2018 Order is available at https://is.gd/TwKUoa from Leagle.com. John Hobon, Individually and on behalf of all others similarly situated, Plaintiff, represented by Larry A. Johnson -- ljohnson@hq-law.com -- Hawks Quindel, S.C., Summer Hart Murshid -- smurshid@hq-law.com -- Hawks Quindel Ehlke & Perry, S.C. & Timothy Peter Maynard -- tmaynard@hq-law.com. Pizza Hut of Southern Wisconsin, Inc., d/b/a Pizza Hut & Rockford Pizza, LLC, Defendants, represented by Brian C. Spahn -- bspahn@gklaw.com -- Godfrey & Kahn, Joshua Lee Johanningmeier -- jjohanningmeier@gklaw.com -- Godfrey & Kahn S.C., Erin M. Cook -- mcook@gklaw.com -- Godfrey & Kahn, S.C. & Rebeca M. Lopez -- rlopez@gklaw.com -- Godfrey & Kahn, S.C. MSG Delco, LLC, Pizza Hut of Madison, Inc., Pizza Hut of Rock County, Inc., Divo Enterprises, Inc., Pizza Hut of Waunakee, Inc., Pizza Hut of Platteville, Inc., Pizza Hut of Mauston, LLC & Southing Grange, Inc., Defendants, represented by Brian C. Spahn, Godfrey & Kahn. PLAZA ATHENEE: Dominguez Files ADA Suit in New York --------------------------------------------------- A class action lawsuit has been filed against Plaza Athenee Hotel Company Limited. The case is styled as Yovanny Dominguez on behalf of himself and all others similarly situated, Plaintiff v. Plaza Athenee Hotel Company Limited, Defendant, Case No. 1:18-cv-10154 (S.D. N.Y., Nov. 1, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. Plaza Athenee Hotel Company Limited owns and operates a hotel in New York. It offers various guestrooms and suites, as well as fitness and business center, restaurant and lounge, and spa facilities.[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 PRET A MANGER: Agrees to Pay $1MM to Shortchanged US Workers ------------------------------------------------------------ August Graham, writing for City A.M., reports that Pret A Manger will pay almost $1m (£779,000) to US workers who claim they were underpaid while working for the company. The sandwich chain has been accused of rounding down the hours that staff at its New York outlets were reimbursed for. It is the second time the UK-based firm has been hit by accusations of so-called time-shaving in New York. In 2014 it settled a class action lawsuit by paying out $910,000, but did not admit liability. This time the company has agreed to pay $875,000 to staff affected by the practices, which include rounding down their work hours, the Sunday Times reported. Pret A Manger told City A.M: "We are absolutely committed to making sure all our team members are paid for all the hours that they work." The decision will add pressure on Pret's management team, which is already facing criticism for its handling of teenager Natasha Ednan-Laperouse's death. The 15-year-old died in 2016 from an allergic reaction a Pret baguette. [GN] PROVIDE COMMERCE: Attys' Fees Award in Easysaver Suit Vacated ------------------------------------------------------------- In the case, IN RE EASYSAVER REWARDS LITIGATION. JOSUE ROMERO; DEANNA HUNT; KIMBERLY KENYON; GINA BAILEY; ALISSA HERBST; GRANT JENKINS; BRADLEY BERENTSON; JENNIFER LAWLER; DANIEL COX; JONATHAN WALTER; CHRISTOPHER DICKEY, Plaintiffs-Appellees, v. BRIAN PERRYMAN, Objector-Appellant, v. PROVIDE COMMERCE, INC.; REGENT GROUP, INC., a California corporation, DBA Encore Marketing International; ENCORE MARKETING INTERNATIONAL, INC., a Delaware corporation, Defendants-Appellees, Case No. 16-56307 (9th Cir.), Judge Michelle Friedland of the U.S. Court of Appeals for the Ninth Circuit (i) vacated the district court's approval of the award of attorney's fees but (ii) otherwise affirmed its approval of the settlement. In 2009, the Plaintiffs filed a putative class action against the Defendants in the Southern District of California, alleging violations of various state laws arising from the Defendants' operation of their membership rewards program. After more than two years of litigation, including extensive discovery and mediation, the parties agreed to settle. The settlement established a $12.5 million fund from which the Defendants would pay up to $8.7 million in attorney's fees; $80,000 in enhancement awards to the named Plaintiffs; and $200,000 in litigation costs. The approximately $3.5 million remaining would be available to fund the settlement's administration costs and to reimburse the class members for their membership fees on a pro rata basis up to the full amount owed. To receive such a refund, the class members had to submit a claim affirming that they had neither intended to enroll in the program nor used any program benefits other than the initial discount code. After the refunds were issued, any remaining funds were to be distributed as a cy pres award to San Diego State University, the University of California at San Diego, and the University of San Diego School of Law for a chair, professorship, fellowship, lectureship, seminar series or similar funding, gift, or donation program regarding internet privacy or internet data security. The settlement also directed the Defendants to email every class member a $20 credit that could be used to purchase items on Defendants' websites. Unlike with the refund, the class members were not required to submit a claim to receive the credit. In June 2012, the district court preliminarily approved the settlement. The parties informed the court that the class contained approximately 1.3 million consumers who had been enrolled in the rewards program at some point since August 2005. In January 2013, the district court held a final settlement approval hearing at which class member, Brian Perryman, objected to the settlement. The court rejected these objections and issued a final order approving both the settlement and the class counsel's accompanying fee request. The district court's order placed the full settlement value at $38 million, including $12.5 million for the cash fund and $25.5 million for the $20 credits to be distributed to the approximately 1.3 million class members. The Objector appealed, and the Appellate Court vacated and remanded for further proceedings in light of its decision in In re Online DVDRental Antitrust Litigation, which addressed CAFA's coupon settlement provisions. Again using $38 million as the total value of the settlement, the court then approved the fee award based on both percentage-of-recovery and lodestar calculations. Under the percentage-of-recovery method, it concluded that an $8.7 million attorney's fee award was reasonable. As a result, the court reinstated its prior approval of the settlement and the fee award. The Objector has appealed again to challenge the attorney's fee and cy pres awards. With respect to the fee award, he argues that the district court erred by failing to comply with CAFA's requirements for coupon settlements and, relatedly, that the settlement provides class counsel with a disproportionate share of the recovery. With respect to the cy pres award, he contends that cy pres relief is not appropriate here and that, even if it were, the district court should have rejected the particular cy pres beneficiaries chosen in the settlement. Judge Friedland holds that the Objector's challenge to the attorney's fee award succeeds because the district court failed to treat the $20 credits as coupons under CAFA, but rejects the Objector's cy pres arguments. The Judge finds that the fact that the In re Online DVD plaintiffs had a choice between cash and a gift card worth the same amount made it easier for her to assess the value of the gift cards. The class members who selected gift cards must have valued them at close to face value, because they selected them over essentially the same value in cash. It was therefore appropriate to treat the In re Online DVD settlement as similar to an all-cash settlement. Here, however, it is impossible to draw the same conclusion -- nothing in the record could have given the district court reason to believe that any class member, let alone all the class members, would have viewed the $20 credit as equivalently useful to $20 in cash. Therefore, she concludes that the only logical conclusion under the correct legal rule is that these credits are coupons under CAFA. Because the district court incorporated the full face value of the coupons into both its percentage-of-recovery calculation and lodestar calculation of the attorney's fee award, this error requires recalculation of the fee award. Accordingly, the attorney's fee award must be vacated. On remand, the award should be recalculated in a manner that treats the $20 credits as coupons under CAFA. Because she holds that the fee award must be recalculated, the Judge holds she needs not address Objector's separate argument that the settlement disproportionately benefits the class counsel at the expense of the class. And, in any event, that argument largely collapses into the Objector's challenge to the fee award under CAFA. The Objector also challenges the use of cy pres to distribute the remaining settlement funds, and, if cy pres is to be used at all, the choice of recipients. The Judge holds that it was not an abuse of discretion for the district court to approve the use of cy pres or to approve these particular recipients. First, the Objector's geographic challenge fails because these beneficiaries have a nationwide reach sufficient to justify their receipt of the cy pres award. Second, the alumni connections of three of the (many) involved attorneys did not impermissibly taint the selection process. Finally, given both the structure of the settlement agreement and the focus of Objector's challenges, the Judge holds that it is unnecessary to reverse the entire settlement approval in conjunction with their vacatur of the fee award. For the foregoing reasons, Judge Friedland vacated and remanded the award of attorney's fees but otherwise affirmed approval of the settlement. A full-text copy of the Court's Oct. 3, 2018 Opinion is available at https://is.gd/8kbq5k from Leagle.com. Theodore H. Frank -- info@cei.org -- (argued) and Adam E. Schulman, Competitive Enterprise Institute, Center for Class Action Fairness, Washington, D.C., for Objector-Appellant Brian Perryman. Bruce Steckler -- bruce@stecklerlaw.com -- (argued), Steckler Law Group LLP, Dallas, Texas; Jennie Lee Anderson -- jennie@andrusanderson.com -- Andrus Anderson LLP, San Francisco, California; James R. Patterson, The Patterson Law Group, San Diego, California; and Michael Singer -- msinger@ckslaw.com -- Cohelan Khoury & Singer, San Diego, California, for Plaintiffs-Appellees Josue Romero, Deanna Hunt, Kimberly Kenyon, Gina Bailey, Alissa Herbst, Grant Jenkins, Bradley Berentson, Jennifer Lawler, Daniel Cox, Jonathan Walker, and Christopher Dickey. Leo P. Norton -- lnorton@cooley.com -- (argued), Michael G. Rhodes -- rhodesmg@cooley.com -- and Michelle C. Doolin -- mdoolin@cooley.com -- Cooley LLP, San Diego, California, for Defendant-Appellee Provide Commerce, Inc. Myron M. Cherry -- mcherry@cherry-law.com -- and Jacie C. Zolna -- jzolna@cherry-law.com -- Myron M. Cherry & Associates LLC, Chicago, Illinois, for Defendant-Appellee Regent Group, Inc. Oramel H. (O.H.) Skinner (argued), Paul N. Watkins, and Dana R. Vogel, Assistant Attorneys General; Mark Brnovich, Attorney General; Office of the Arizona Attorney General, Phoenix, Arizona; for Amici Curiae Thirteen State Attorneys General. Wilber H. Boies and Timothy M. Kennedy, McDermott Will & Emery LLP, Chicago, Illinois; Jessica Mariani, McDermott Will & Emery LLP, Los Angeles, California; Robert Kline, McDermott Will & Emery LLP, Miami, Florida; for Amici Curiae National Legal Aid and Defender Association, Association of Pro Bono Counsel, Legal Aid Association of California and 24 of its member organizations, California Bar Foundation, Equal Rights Advocates, Family and Children's Law Center, Columbia Legal Services, Hawaii Justice Foundation, Legal Aid Center of Southern Nevada, Montana Justice Foundation, Northwest Immigrant Rights Project, Washoe Legal Services, and William E. Morris Institute for Justice. PURDUE PHARMA: Reynolds Files RICO Class Action in Oregon --------------------------------------------------------- A class action lawsuit has been filed against Purdue Pharma L.P., et al. The case is styled as Jason Reynolds individually and on behalf of all others similarly situated, Plaintiff v. Purdue Pharma LP, Purdue Pharma Inc., Purdue Frederick Company Inc., Insys Therapeutic Inc., Teva Pharmaceutical Industries Ltd, Teva Pharmaceuticals USA Inc., Cephalon Inc., Johnson & Johnson, Janssen Pharmaceuticals Inc., Endo Health Solutions Inc., Endo Pharmaceuticals Inc., Actavis PLC, Actavis Inc., Watson Pharmaceuticals Inc., Watson Laboratories Inc., McKesson Corporation, Cardinal Health Inc., Amerisourcebergen Corporation, Defendants, Case No. 3:18-cv-01911-MO (D. Ore., Nov. 1, 2018). The Plaintiff filed the case under the Racketeer Influenced and Corrupt Organizations Act. Purdue Pharma L.P. is a privately held pharmaceutical company owned principally by parties and descendants of Mortimer and Raymond Sackler. The company's branches include Purdue Pharma Inc., The Purdue Frederick Company, Purdue Pharmaceutical Products L.P., and Purdue Products L.P. The Frederick Purdue Company provides research, development, production, marketing, sales, and licensing of prescription and non-prescription medicines and healthcare products. The Company offers specializes in pain medication research, as well as other therapeutic areas, including sleep and gastrointestinal disorders. The Frederick Purdue operates in the United States. Insys Therapeutics, Inc., a specialty pharmaceutical company, develops and commercializes supportive care products. The company markets SUBSYS, a sublingual fentanyl spray for breakthrough cancer pain in opioid-tolerant adult patients; and SYNDROS, an orally administered liquid formulation of dronabinol for the treatment of chemotherapy-induced nausea and vomiting, and anorexia associated with weight loss in patients with AIDS. Teva Pharmaceutical Industries Limited, a pharmaceutical company, develops, manufactures, markets, and distributes generic medicines and a portfolio of specialty medicines worldwide. It operates through two segments, Generic Medicines and Specialty Medicines. The Generic Medicines segment offers sterile products, hormones, narcotics, high-potency drugs, and cytotoxic substances in various dosage forms, including tablets, capsules, injectables, inhalants, liquids, ointments, and creams. This segment also develops, manufactures, and sells active pharmaceutical ingredients. Teva Pharmaceuticals USA, Inc. manufactures and markets generic drugs in the United States. It offers generic products for various therapeutic options, such as cardiovascular, anti-infective, central nervous system, anti-inflammatory, oncolytic, anti-diabetic, analgesic, dermatologic, respiratory, and women's health. The company offers its products in various dosage forms, such as tablets, capsules, injectables, creams, ointments, inhalants, solutions, and suspensions. It serves patients through distributors. Teva Pharmaceuticals USA, Inc. was formerly known as Lemmon Pharmacal Company and changed its name to Teva Pharmaceuticals USA, Inc. in 1996. Cephalon, Inc. engages in the discovery and development of medicines for central nervous system disorders, pain, and cancer. It offers NUVIGIL (armodafinil) tablets for improving wakefulness in patients with excessive sleepiness associated with treated obstructive sleep apnea and shift work disorder, also known as shift work disorder and narcolepsy; TREANDA (bendamustine HCl) for injection for the treatment of patients with chronic lymphocytic leukemia; and AMRIX (Cyclobenzaprine Hydrochloride extended-release capsules), which is indicated as an adjunct to rest and physical therapy for relief of muscle spasm associated with acute and painful musculoskeletal conditions. Johnson & Johnson is an American multinational medical devices, pharmaceutical and consumer packaged goods manufacturing company founded in 1886. Its common stock is a component of the Dow Jones Industrial Average and the company is listed among the Fortune 500. Janssen Pharmaceuticals, Inc. manufactures and markets prescription pharmaceutical products. It provides medicines for health concerns in various therapeutic areas, including attention deficit hyperactivity disorder, pain management, acid reflux and infectious diseases, women's health, and mental health (bipolar I disorder and schizophrenia); neurologics, including Alzheimer's disease, epilepsy, and migraine prevention and treatment; and SYMTUZATM, a darunavir-based single-tablet regimen for the treatment of human immunodeficiency virus type 1 (HIV-1) in treatment-naïve and certain virologically suppressed adults. Endo Health Solutions Inc. provides specialty healthcare solutions in the United States and internationally. The company's Endo Pharmaceuticals segment offers branded prescription products, including Lidoderm, Opana ER, Percocet, Voltaren Gel, Frova, Supprelin LA, Vantas, Valstar, and Fortesta Gel for pain, urology, endocrinology, and oncology. Its Qualitest segment provides non-branded generic products in the pain management, urology, central nervous system disorders, immunosuppression, oncology, women's health, and hypertension markets. Endo Pharmaceuticals Inc. engages in the research and development, production, sale, and marketing of branded and generic pharmaceutical products primarily in the United States. It offers injections, sustained release capsules, gels, tablets, oral suspensions, nasal sprays, extended-release tablets, capsules, mucoadhesive for buccal administration, subcutaneous implants, and sterile solutions for intravesical instillation; and clinical research services. Actavis Generics is a global pharmaceutical company focused on developing, manufacturing and commercializing branded pharmaceuticals, generic and over-the-counter medicines, and biologic products. Actavis has a commercial presence across approximately 100 countries. Watson Laboratories, Inc. manufactures pharmaceutical drugs. The company was incorporated in 1992 and is based in Corona, California. Watson Laboratories, Inc. operates as a subsidiary of Teva Pharmaceutical Industries Limited. McKesson Corporation provides pharmaceuticals and medical supplies in the United States and internationally. It operates in three segments: U.S. Pharmaceutical and Specialty Solutions, European Pharmaceutical Solutions, and Medical-Surgical Solutions. The company distributes branded, generic, specialty, biosimilar, and over-the-counter pharmaceutical drugs, as well as other healthcare-related products; and offers practice management, technology, clinical support, and business solutions to community-based oncology and other specialty practices. Cardinal Health, Inc. operates as an integrated healthcare services and products company in the United States and internationally. It provides medical products and pharmaceuticals, and solutions that enhance supply chain efficiency for hospitals, healthcare systems, pharmacies, ambulatory surgery centers, clinical laboratories, and physician offices. AmerisourceBergen Drug Corporation distributes pharmaceuticals products, equipment, and systems. The company provides global product sourcing, generic purchasing programs, technology solutions, pharmacy network and programs, and pharmaceutical packaging solutions. The company serves healthcare providers, independent retailers, and pharmacies. AmerisourceBergen Drug Corporation was formerly known as AmeriSource Corporation and changed its name to AmerisourceBergen Drug Corporation in January 1995.[BN] The Plaintiff is represented by: Steve D. Larson, Esq. Stoll Stoll Berne Lokting & Shlachter P.C. 209 SW Oak Street, Suite 500 Portland, OR 97204 Phone: (503) 227-1600 Fax: (503) 227-6840 Email: slarson@stollberne.com RELIQ HEALTH: Rosen Law Firm Mulls Investors Class Action --------------------------------------------------------- Jayson Maclean, writing for Cantech Letter, reports that Reliq Health Technologies (Reliq Health Stock Quote, Chart TSXV:RHT, OTC:RQHTF) is in dire straits as the healthcare software company faces scrutiny over its financial disclosures and a class action lawsuit on behalf of shareholders. The issues raise too many red flags, says Peter Imhof of AGF Investments, who has serious doubts concerning Reliq's overall management. On October 16, news broke that Reliq was intending to restate aspects of its financial information for the quarter ended March 31, 2018, saying that the decision followed an audit which revealed problems over the "timing and certainty of receiving the revenue invoiced to clients," said management in a statement. Market reaction was immediate, with the stock losing more than half of its value overnight. After reaching a high of $2.62 earlier this year, RHT currently sits at $0.48, down nine per cent in the Oct. 26 trading. Imhof, vice-president and portfolio manager at AGF Investments, says that while his firm did extremely well by Reliq over the past year and a half, the company's current issues are too big to ignore. "They came out recently and said that they couldn't recognize a lot of the revenue that was supposedly coming through and that it would be delayed," says Imhof to BNN Bloomberg. "There were some governance issues probably with the company. Unfortunately, we ended up selling the stock here on the downturn -- there were just too many red flags. There are going to be lots of lawsuits against the company." On Oct. 24, Reliq announced the firing of Giancarlo De Lio, the company's Chief Visionary Officer, while at the same time reporting that it has taken on Sophic Capital as its investor relations firm. "These changes reflect Reliq's commitment to improving our investor communications and to ensuring transparency, accountability and execution within the organization going forward," said Dr. Lisa Crossley, CEO of Reliq. Imhof said, "When there's no visibility, there are lawsuits going on, I don't have a tonne of confidence in the overall management in terms of operations so we just decided to exit and move on." "Sometimes you have to do that in small caps, you have to take your lumps," he said. At this point, investor rights law firm Rosen Law Firm has stated that it would be filing a class action lawsuit on behalf of Reliq investors, "resulting from allegations that Reliq may have issued materially misleading business information to the investing public." [GN] REYNOLDS AND REYNOLDS: Settles Antitrust Class Action for $29.5MM ----------------------------------------------------------------- David Muller, writing for Automotive News, reports that Reynolds and Reynolds Co. has agreed to pay $29.5 million to settle a class-action lawsuit with dealers, but when that money is distributed -- and whether there will be more -- depends on continued litigation with CDK Global Inc. The settlement needs approval of Judge Robert Dow in U.S. District Court for the Northern District of Illinois, where multidistrict, class-action lawsuits by dealers and by rivals to the dealer management system companies were consolidated. The litigation alleges the two companies conspired to eliminate competition in the DMS and data integration services markets. Together, Reynolds and CDK control more than 70 percent of the DMS market. The dealer plaintiffs submitted the motion for preliminary approval of the settlement. Reynolds declined to comment. The preliminary agreement does not affect plaintiffs' claims against CDK, which has so far made no indication that it plans to settle. "We continue to believe that these cases are without merit," the company said in an emailed statement. "We intend to continue to contest the claims vigorously. We will not provide further comment on matters in litigation." Leonard Bellavia -- LBellavia@DealerLaw.com -- of Bellavia Blatt & Crossett, a Mineola, N.Y.-based firm representing the plaintiffs, said if the settlement amount is approved, most of the money will be put in escrow while the litigation with CDK continues. If CDK were to settle, the $29.5 million Reynolds has agreed to pay would likely be applied to CDK's potentially much larger settlement amount before distribution to plaintiffs, he said. If only Reynolds settles, the money would still be paid out to the thousands of franchised dealerships that have been customers of the company. The amounts and timing of payments would be set by the court. Dealers who participate in the class-action suit would typically get a premium in the settlement distribution but "not a huge amount," Mr. Bellavia said. Dealers would also have the option to opt out of any potential settlement. Meanwhile, discovery on both companies continues, though Reynolds would be released from any further liability if the settlement is approved. There are more than 25 dealers acting as plaintiffs in the suit, including early litigants such as Teterboro Automall of Little Ferry, N.J; Hartley Buick-GMC Truck of Jamestown, N.Y.; Hoover Automotive of Summerville, S.C.; and John O'Neil Johnson Toyota of Meridian, Miss. They allege that manipulation of the data integration market by CDK and Reynolds has cost them dearly. The proposed Reynolds settlement doesn't involve non-dealership firms that have also sued. [GN] SATURDAYS SURF: Olsen Files ADA Suit in New York ------------------------------------------------ A class action lawsuit has been filed against Saturdays Surf LLC. The case is styled as Thomas J. Olsen individually and on behalf of all other persons similarly situated, Plaintiff v. Saturdays Surf LLC, Defendant, Case No. 1:18-cv-10184 (S.D. N.Y., Nov. 1, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. Saturdays Surf is a New York based menswear clothing and lifestyle brand.[BN] The Plaintiff is represented by: Christopher Howard Lowe, Esq. Lipsky Lowe LLP 630 Third Avenue New York, NY 10017 Phone: (212) 392-4772 Fax: (212) 444-1030 Email: chris@lipskylowe.com SATYA JEWELRY: Violates Disabilities Act, Nixon Suit Asserts ------------------------------------------------------------ A class action lawsuit has been filed against Satya Jewelry III, LLC. The case is styled as Donald Nixon on behalf of himself and all others similarly situated, Plaintiff v. Satya Jewelry III, LLC, Defendant, Case No. 1:18-cv-06135 (E.D. N.Y., Nov. 1, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. Satya Jewelry III, LLC sells jewelry including necklaces, bracelets and earrings with symbols and semi-precious gemstones.[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 SCANA: Can Afford to Compensate Ratepayers Over Failed Project -------------------------------------------------------------- The Post and Courier reports that little of what we learned from the recent deposition of Ken Browne, who helped oversee work on the failed V.C. Summer nuclear project, could be considered new information. That doesn't make it any less troubling. Mr. Browne's sworn statement as part of a class-action lawsuit against SCANA offers yet another inside perspective of what increasingly appears to have been a conscious effort on the part of the utility company's leaders to keep state regulators and investors in the dark about mounting challenges facing the multibillion-dollar reactor project. "The health of the project was not good," Mr. Browne said in his deposition, according to a report on Oct. 25 by The Post and Courier's Andrew Brown and Thad Moore. "But if you read in the reports, the health of the project was always good, a positive outlook." Mr. Browne's account would seem to confirm the narrative gleaned from hundreds of SCANA corporate emails and other documents released earlier in October by the state Office of Regulatory Staff, a watchdog agency. In those documents, SCANA officials, attorneys and staff members debated, among other things, whether and how to keep a critical report from going public. That report, by the engineering firm Bechtel, was only released at the demand of Gov. Henry McMaster after SCANA and project partner Santee Cooper had already abandoned construction on the reactors. Ever since construction stopped last year, SCANA ratepayers have wondered how much more they would have to pay for reactors that would never generate electricity. Only in June did state lawmakers pass a temporary rate cut that slashed the surcharge in monthly bills that customers had been paying toward the nuclear project. For longer-term relief, the question is how much of the $9 billion spent on the abandoned reactors was "prudent." The more information that comes to light, the less prudent things seem. To that end, Circuit Judge John Hayes is weighing whether to require SCANA to repay the roughly $2 billion customers have already contributed to its reactor project and make lower rates permanent. The Post and Courier believes ratepayers merit the fullest possible relief. It's nevertheless important to proceed with caution. In past discussions over rate cuts, SCANA has threatened that overly punitive action could push it toward bankruptcy, which could disrupt the state economy and leave customers paying even higher rates at the end of the day. However, SCANA's continuing profitability undermines that narrative. Even with the 15 percent rate cut legislators passed this summer, SCANA reported net income for the third quarter of this year totaling $67 million. That's actually an increase from the same period last year. In other words, they can probably afford to give their customers a break. And given the steady trickle of damning evidence that keep emerging from the ongoing investigation into the nuclear failure, they're not likely to have much choice. [GN] SCANA: May Opt for Bankruptcy Amid Nuclear Meltdown Class Actions ----------------------------------------------------------------- BrianHicks, writing for The Post and Courier, reports that what a difference a decade has made for SCANA. Ten years ago in October, SCE&G's parent company was sitting pretty. It won approval from the Public Service Commission to begin site work on a couple of nuclear reactors in Fairfield County, and didn't even have to pay for them. Armed with the legislatively enacted Base Load Review Act, the utility was able to bill its 700,000 South Carolina customers for the construction costs. After all, why eat into their own profits? And there were profits. The company has extracted $2 billion from ratepayers since then, and shareholders pocketed more than a quarter of that money. Company officials took a tidy sum in bonuses, too. But in July 2017, SCANA announced it was abandoning the project. There were problems with construction and escalating costs — maladies the company willfully hid from regulators and investors. Still, it insisted its customers pay another $5 billion for its losses, and the Base Load Review Act allowed it. Fast forward another year. The FBI and SLED are investigating these shenanigans, and a judge is expected to declare the Base Load Review Act unconstitutional. Will that bring an end to this fiasco? Probably not. But it's a good sign South Carolina residents won't be picking up SCANA's $5 billion tab anytime soon. Decade of decadence Word of the pending ruling leaked out, and SCANA stock stumbled. That's actually a pity, because a lot of South Carolina residents -- including SCE&G customers and employees -- own some of those shares. It will likely hurt them more than the golden parachute crowd. Particularly the former executive paid more than $1 million for undocumented consulting. Of course, until the court files its order, there's no telling what might happen. "As a lawyer, I know better than to publicly predict which way a judge may rule," says state Sen. Sandy Senn. "But as a senator, I would welcome a ruling that the law is unconstitutional as it opens the door for more complete relief to the ratepayers. Do I think ratepayers will ever be made 100 percent whole? No. Should they be? Yes." Earlier this year, the Legislature ordered the company to stop billing customers for most of the nuclear surcharge and pay back several months' worth of payments. The PSC could wipe out the surcharge completely before year's end, and if the judge rules the law unconstitutional, it probably will. But over a decade of decadence, ratepayers put an average of $2,000 into those plants. Will we get that money back? Don't bet on it. "The bottom line is, we all got taken for a ride by top level SCANA executives and thinking that we will be wholly repaid is akin to thinking Bernie Madoff will pay back his ill-gotten spoils," Sen. Senn says. "It should happen, but it won't." That's because many people assume the company will run for the protection of bankruptcy court, despite its recent profit reports. No remorse State Rep. Peter McCoy, who led the legislative committee that investigated SCANA's nuclear meltdown, says bankruptcy is one possible outcome. He believes a ruling against the Base Load Review Act will likely spark a stampede to the courthouse. And SCANA will seek the protection of bankruptcy court. "There are several class-action lawsuits being filed now," Mr. McCoy says. "I don't see that stopping if the law is ruled unconstitutional. If that happens, the floodgates will open." The Post and Courier has uncovered a plethora of evidence that could convince a jury that SCANA has not acted in good faith, perhaps enough to make the courts refund everyone's money. Another former employer corroborated that narrative. Then there's this: The utility's attorneys and lobbyists actually wrote the legislation that allowed it to use its customers like a credit card, and persuaded the General Assembly to pass it. It doesn't look nearly as good for SCANA as it did 10 years ago. And in some ways, that's a shame. "I don't enjoy seeing a South Carolina business going broke, but they have done their employees and their customers wrong, and they have shown no remorse," McCoy says. He's absolutely right. SCANA was sitting pretty. It had a monopoly and a legal guarantee of at least 10 percent profits. That's a pretty good deal, but apparently it wasn't good enough. The company may never pay back the money it fleeced from ratepayers, who have no choice where they get their electricity. But, hopefully, a judge will teach SCANA a little something about paybacks. [GN] SONIC CORP: Federman Files Securities Suit Over Sonic Merger ------------------------------------------------------------ Eric Federman, on behalf of himself and all others similarly situated, Plaintiff, v. Sonic Corp., J. Clifford Hudson, Tony D. Bartel, R. Neal Black, Steven A. Davis, Lauren R. Hobart, S. Kirk Kinsell, Kate S. Lavelle, Federico F. Peña, Jeffrey H. Schutz, Kathryn L. Taylor, and Susan E. Thronson, Defendants, Case No. 1:18-cv-01740-UNA (D. Del., November 2, 2018) is a stockholder class action brought by Plaintiff on behalf of himself and all other public stockholders of Sonic Corp. against Sonic and the members of Sonic's Board of Directors for their violations of the Securities Exchange Act of 1934 and U.S. Securities and Exchange Commission. On September 24, 2018, according to the complaint, Sonic and Inspire issued a joint press release announcing their entry into an Agreement and Plan of Merger to sell Sonic to Inspire. On October 22, 2018, Sonic filed a Preliminary Proxy Statement on Schedule 14A with the SEC containing a joint proxy statement/prospectus. The Proxy Statement, which recommends that Sonic stockholders vote in favor of the Proposed Transaction, omits or misrepresents material information concerning, among other things: (i) Sonic management's financial projections, relied upon by Sonic's financial advisor, Guggenheim Securities, LLC in its financial analyses; (ii) the valuation analyses prepared by Guggenheim in connection with the rendering of its fairness opinion; (iii) the background process leading to the Proposed Transaction; and (iv) Company insiders' potential conflicts of interest. Sonic's public stockholders will be forced to make a voting or appraisal decision on the Proposed Transaction without full disclosure of all material information concerning the Proposed Transaction being provided to them, asserts the complaint. Plaintiff seeks to enjoin the stockholder vote on the Proposed Transaction unless and until such Exchange Act violations are cured. Plaintiff is, and has been at all times relevant hereto, a continuous stockholder of Sonic. Sonic is a Delaware corporation with its principal executive offices located at 300 Johnny Bench Drive, Oklahoma City, Oklahoma 73104. Sonic operates and franchises a chain of quick-service drive-in restaurants in the United States. Sonic trades on the NASDAQ Global Select Market under the ticker symbol "SONC." J. Clifford Hudson has been Sonic's Chief Executive Officer since April 1995, Chairman of the Board since January 2000, and a director of the Company since August 1993. Tony D. Bartel has been a director of the Company since 2014. Defendant R. Neal Black has been a director of the Company since 2016. Defendant Steven A. Davis has been a director of the Company since 2017. Defendant Lauren R. Hobart has been a director of the Company since 2014. Defendant S. Kirk Kinsell has been a director of the Company since 2018. Defendant Kate S. Lavelle has been a director of the Company since 2012. Defendant Federico F. Peña has been a director of the Company since 2001. Defendant Jeffrey H. Schutz has been a director of the Company since 2010. Defendant Kathryn L. Taylor has been a director of the Company since 2010. Defendant Susan E. Thronson has been a director of the Company since 2015.[BN] The Plaintiff is represented by: Ryan M. Ernst, Esq. O'KELLY ERNST & JOYCE, LLC 901 N. Market St., Suite 1000 Wilmington, DE 19801 Phone: (302) 778-4000 Direct Phone/Fax: (302) 778-4002 Email: rernst@oelegal.com SOUTH FLORIDA INSTITUTE: Gomez Files Suit Under TCPA ---------------------------------------------------- Gaston Gomez, individually and on behalf of all others similarly situated, Plaintiff, v. South Florida Institute of Technology Inc., a Florida Corporation, Defendant, Case No. 1:18-cv-24599-KMW (S.D. Fla., November 2, 2018) seeks to secure redress for violations of the Telephone Consumer Protection Act. This case arises from Defendant's unauthorized text messages to cellular subscribers who never provided Defendant with prior express consent, as well as cellular subscribers who expressly requested not to receive Defendant's text messages, says the complaint. Defendant caused thousands of text messages to be sent to the cellular telephones of Plaintiff and Class Members and caused them injuries, including invasion of their privacy, aggravation, annoyance, intrusion on seclusion, trespass, and conversion, it adds. Plaintiff is a natural person who, at all times relevant to this action, was a resident of Miami-Dade County, Florida. Defendant is a Florida corporation whose principal office is located at 720 NW 27th Ave., 2nd Floor, Miami, Florida 33125. Defendant directs, markets, and provides its business activities throughout the State of Florida.[BN] The Plaintiff is represented by: Andrew J. Shamis, Esq. SHAMIS & GENTILE, P.A. 14 NE 1st Avenue, Suite 1205 Miami, FL 33132 Phone: 305-479-2299 Email: ashamis@shamisgentile.com - and - Scott Edelsberg, Esq. EDELSBERG LAW, PA 19495 Biscayne Blvd #607 Aventura, FL 33180 Phone: 305-975-3320 Email: scott@edelsberglaw.com STEINHOFF: Law Firms Launch Investors Class Action -------------------------------------------------- ENCA reports that several law firms from Europe and South Africa were holding meetings in the country for investors who lost money as a result of the Steinhoff scandal. The law firms are launching a class action lawsuit on behalf of investors in a bid to recoup some of the money lost. The consortium of law firms has applied to the South Gauteng High Court for a class action suit for investors who are seeking damages. At least R187-billion was wiped off the value of Steinhoff after accounting irregularities came to light in December last year. [GN] STITCH FIX: Levi & Korsinsky Files Class Action ----------------------------------------------- Levi & Korsinsky, LLP disclosed that class action lawsuits have commenced on behalf of shareholders of Stitch Fix, Inc. Shareholders interested in serving as lead plaintiff have until the deadlines listed to petition the court and further details about the cases can be found at the links provided. There is no cost or obligation to you. Stitch Fix, Inc. (NASDAQ: SFIX) Class Period: June 8, 2018 - October 1, 2018 Lead Plaintiff Deadline: December 10, 2018 Join the action: https://www.zlk.com/pslra-1/stitch-fix-inc-loss-form?wire=3 The lawsuit alleges: Stitch Fix, Inc. made materially false and/or misleading statements throughout the class period and/or failed to disclose that: (1) Stitch Fix's active client growth had slowed to a crawl; (2) Stitch Fix had completely shut down its television advertising campaign for 10 of the 13 weeks in fourth quarter 2018, dramatically decreasing the number of new active client additions; and (3) as a result, the Company's current business metrics and financial prospects were not as strong as it had led the market to believe during the Class Period. To learn more about the Stitch Fix, Inc. class action contact jlevi@levikorsinsky.com. You have until the lead plaintiff deadlines to request the court appoint you as lead plaintiff. Your ability to share in any recovery doesn't require that you serve as a lead plaintiff. Joseph E. Levi, Esq. Levi & Korsinsky, LLP 55 Broadway, 10th Floor New York, NY 10006 Telephone: (212) 363-7500 Toll Free: (877) 363-5972 Fax: (212) 363-7171 Email: jlevi@levikorsinsky.com [GN] SUGARFINA INC: Nixon Files ADA Suit in New York ----------------------------------------------- A class action lawsuit has been filed against Sugarfina, Inc. The case is styled as Donald Nixon on behalf of himself and all others similarly situated, Plaintiff v. Sugarfina, Inc., Defendant, Case No. 1:18-cv-06134 (E.D. N.Y., Nov. 1, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. Sugarfina, Inc. operates candy stores in the United States. It also serves customers online. The company was founded in 2012 and is based in Inglewood, California.[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 TASCHEN AMERICA: Dominguez Sues Book Publisher for ADA Breach ------------------------------------------------------------- A class action lawsuit has been filed against Taschen America LLC. The case is styled as Yovanny Dominguez on behalf of himself and all others similarly situated, Plaintiff v. Taschen America LLC, Defendant, Case No. 1:18-cv-10171 (S.D. N.Y., Nov. 1, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. Taschen is an art book publisher founded in 1980 by Benedikt Taschen in Cologne, Germany. As of January 2017, Taschen is co-managed by Benedikt and his eldest daughter, Marlene Taschen.[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 TECHNOGYM USA: Dominguez Files Suit Asserting ADA Violation ----------------------------------------------------------- A class action lawsuit has been filed against Technogym USA Corp. The case is styled as Yovanny Dominguez on behalf of himself and all others similarly situated, Plaintiff v. Technogym USA Corp., Defendant, Case No. 1:18-cv-10169 (S.D. N.Y., Nov. 1, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. Technogym USA Corp was founded in 1996. The company's line of business includes the manufacturing of sporting and athletic goods.[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 THURSTON COUNTY, WA: SSOSA Evaluation Ruling Reversed ----------------------------------------------------- In the case, JOHN DOE P; JOHN DOE Q; JOHN DOE R; and JOHN DOE S, as individuals and on behalf of others similarly situated, Respondents, v. THURSTON COUNTY, a municipal organization, and its departments the THURSTON COUNTY PROSECUTING ATTORNEY, and THURSTON COUNTY SHERIFF, Respondents, DONNA ZINK, a married woman, Appellant, Case No. 48000-0-II (Wash. App.), Judge Jill M. Johanson of the Court of Appeals of Washington, Division II, (i) reversed the superior court's summary judgment ruling that unredacted special sex offender sentencing alternative ("SSOSA") evaluations are exempt from disclosure; (ii) reversed the ruling allowing the Does to proceed under pseudonyms and remanded for further proceedings; and (iii) otherwise affirmed the Court's holdings in John Doe P, 199 Wn.App. 280. In 2014, Donna Zink submitted a Public Records Act ("PRA") request for level one sex offenders' records held by Thurston County. The John Does, representing a class of level one offenders whose records were among those requested, sued the County to prevent the records' release and obtained summary judgment and a permanent injunction barring the release of requested unredacted level one records. After the Court's opinion in John Doe P v. Thurston County, the Supreme Court decided John Doe G v. Department of Corrections, accepted review of John Doe P, and remanded it to the Court for reconsideration in light of John Doe G. In 2015, the Does filed a class action complaint to prevent the County from disclosing level one sex offender registration records and SSOSA/special sex offender disposition alternative ("SSODA") evaluations. They also requested permission to proceed under pseudonyms, a request that Zink did not oppose. The superior court granted the Does' motion to proceed under pseudonyms. In its written order, the superior court did not apply the Ishikawa factors. Because it found that the Does' interest in proceeding anonymously outweighed the public interest in their names and because this was the least restrictive means to protect the Does' interests, the superior court granted the Does' motion. The superior court also ruled that the Does had satisfied CR 23 and certified the class. The Does then moved for summary judgment and a permanent injunction barring the requested level one offender records' release. The superior court granted the Does' motion. In doing so, the superior court ruled that (1) former RCW 4.24.550, regarding public notification, was an "other statute" exemption to the PRA that barred evaluations' and registration forms' disclosure, (2) the Uniform Health Care Information Act ("UHCIA") exemption to the PRA barred the evaluations' disclosure, (3) ch. 13.50 RCW, regarding juvenile records, was an "other statute" exemption to the PRA barring SSODA evaluations' disclosure, and (4) there was no genuine dispute of material fact that disclosure would not be in the public interest and would substantially and irreparably harm the class members. The superior court did not rule on whether redacted records could be disclosed. Zink appealed. In light of John Doe G, Judge Johanson reconsiders the Court's holding that unredacted SSOSA/SSODA evaluations are exempt under the PRA's UHCIA exemption. She holds that under John Doe G, unredacted SSOSA/SSODA evaluations are not exempt from disclosure under the PRA's UHCIA exemption. By statute, SSODA evaluations must include the same information as SSOSA evaluations, such as a proposed treatment plan. The same WAC provision governs the required contents of both SSOSA and SSODA evaluations. A SSOSA evaluation is not directly related to health care so that SSOSA evaluations do not contain health care information and accordingly do not fit within the PRA's exemption incorporating the UHCIA. Thus, she will reverse the superior court's ruling that SSOSA evaluations were exempt from disclosure under the UHCIA as a PRA exemption. And, because the superior court also ruled that unredacted SSODA evaluations are exempt under a separate PRA exemption, ch. 13.50 RCW as an "other statute" exemption, the Judge must also consider whether this ruling was correct. On appeal, Zink argues that court-ordered SSODA evaluations are part of the juvenile court file and, therefore, they must be available for public inspection. The County argues that SSODA evaluations are juvenile records governed by ch. 13.50 RCW and not found within the official juvenile court file, so that unless redacted, they could not be disclosed under the PRA. The Does agree with the County that SSODA evaluations are exempt from disclosure under ch. 13.50 RCW as an "other statute" exemption. The Judge agrees with the County and the Does that unredacted SSODA evaluations are exempt from disclosure and will affirm the superior court's ruling in this regard. The superior court properly ruled that unredacted SSODA evaluations in the County's possession were records related to the commission of juvenile offenses not found within the official juvenile court file and accordingly were confidential. Judge Johanson will reverse the Court's holding in John Doe P that unredacted SSOSA evaluations are exempt under the UHCIA exemption to the PRA. Thus, the superior court must allow release of SSOSA evaluations. However, she holds that unredacted SSODA evaluations are exempt under ch. 13.50 RCW as an "other statute" PRA exemption and that the superior court properly ruled that unredacted SSODA evaluations were exempt from disclosure. Finally, reconsidering the Court's holding that Zink waived her argument that the superior court erred when it allowed the Does to proceed under pseudonyms, the Judge finds that the Supreme Court's holding that the order in John Doe G was insufficient to justify allowing the offenders to proceed under pseudonyms applies to the similar superior court ruling in the case. In light of John Doe G, the Judge reconsiders the Court's holding that Zink waived her argument related to allowing the Does to proceed under pseudonyms. She will reverse the order granting permission to proceed under pseudonyms. Accordingly, Judge Johanson (i) reversed the superior court's summary judgment ruling that unredacted SSOSA evaluations are exempt from disclosure; (ii) reversed the ruling allowing the Does to proceed under pseudonyms and we remand for further proceedings consistent with her Opinion; and (iii) otherwise affirmed the Court's holdings in John Doe P, 199 Wn.App. 280. A full-text copy of the Court's Oct. 2, 2018 Unpublished Opinion is available at https://is.gd/47NZED from Leagle.com. Donna Zink (Appearing Pro Se), P. O. Box 263, Mesa, WA, 99343, Counsel for Appellant. Salvador Alejo Mungia II -- smungia@gth-law.com -- Gordon Thomas Honeywell, Po. Box 1157, Tacoma, WA, 98401-1157, Reuben Schutz -- rschutz@gth-law.com -- Gordon Thomas Honeywell, 1201 Pacific Ave. Ste. 2100, Tacoma, WA, 98402-4314, Vanessa Torres Hernandez, ACLU of Washington, 901 5th Ave. Ste. 630, Seattle, WA, 98164-2086, Prachi Vipinchandra Esq Dave, Attorney at Law, 901 5th Ave. Ste. 630, Seattle, WA, 98164-2086, Karen A. Horowitz, Thurston County Prosecuting Attys Office, 2000 Lakeridge Dr. Sw. Bldg 2, Olympia, WA, 98502-6045, Counsel for Respondents. TIE BAR: Fischler Files ADA Suit in New York -------------------------------------------- A class action lawsuit has been filed against The Tie Bar Operating Company, LLC. The case is styled as Brian Fischler individually and on behalf of all other persons similarly situated, Plaintiff v. The Tie Bar Operating Company, LLC, Defendant, Case No. 1:18-cv-06265 (E.D. N.Y., Nov. 4, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. The Tie Bar.com designs neckties. It offers striped, plaid, geometric/polka dot, paisley/floral, solid, and conversational ties, skinny ties, and bowties; pre-tied or self-tie bowties; ties for weddings; custom neckties; ties for groups; tie bars (pinch and slide clasps); and cufflinks.[BN] The Plaintiff is represented by: Douglas Brian Lipsky, Esq. Lipsky Lowe LLP 630 Third Avenue Fifth Floor New York, NY 10017 Phone: (212) 392-4772 Fax: (212) 444-1030 Email: doug@lipskylowe.com - and - Christopher Howard Lowe, Esq. Lipsky Lowe LLP 630 Third Avenue New York, NY 10017 Phone: (212) 392-4772 Fax: (212) 444-1030 Email: chris@lipskylowe.com TRANS-INDIA PRODUCTS: Faces Orlowski Class Suit in Cal. Super. Ct. ------------------------------------------------------------------ A class action lawsuit has been filed against Trans-India Products, Inc. The case is styled as Orlowski, Brianna and all others similarly situated, Plaintiff v. Trans-India Products, Inc. dba: Shikai, Defendant, Case No. SCV-263450 (Cal. Super. Ct., Sonoma Cty., Nov. 1, 2018). Trans-India Products, Inc. was founded in 1974. The company's line of business includes the manufacturing of perfumes, cosmetics, and other toilet preparations.[BN] The Plaintiff is represented Seyed Abbas Kazerounian, Esq. and David James Mcglothlin, Esq. TRANSAM LEASING: Court Dismisses Fox Suit with Prejudice -------------------------------------------------------- Judge John W. Broomes of the U.S. District Court for the District of Kansas granted the Plaintiffs' unopposed motion to dismiss the case, CANDACE FOX; ANTHONY GILLESPIE; CHARLES SCHRECKENBACH, Individually and on behalf of a class of all others similarly situated, Plaintiffs, v. TRANSAM LEASING, INC.; TRANSAM TRUCKING, INC., Defendants, Case No. 12-2706-JWB (D. Kan.). The Plaintiffs' initial complaint alleged, among numerous other claims, that the Defendants violated federal regulations by requiring them and other independent truckers to pay a communications fee to enter lease agreements with Defendants. The complaint included class action allegations under Fed. R. Civ. P. 23(b)(2), for purposes of obtaining declaratory relief, and under Fed. R. Civ. P. 23(b)(3), for purposes of recovering money damages. The Plaintiffs only moved for certification of a class under Rule 23(b)(3), however, and the Court subsequently certified a class action on the regulatory claim pursuant to Fed. R. Civ. P. 23(b)(3). It also allowed the Plaintiffs to amend their complaint and approved a form of notice to the class. The Court later granted the Plaintiffs' motion for partial summary judgment on the regulatory claim. In an interlocutory appeal, the Tenth Circuit ruled that the Court correctly concluded the communication fee violated federal regulations, but the Defendants were entitled to summary judgment on the class action claim for damages because the Plaintiffs failed to produce evidence of damages. Upon remand, and following the disposition of multiple other claims, the Court granted the Plaintiffs' motion for partial summary judgment, finding they were entitled to a declaratory judgment that the imposition of the communication fee was a violation of the regulations. The Court then requested a status report to determine if final judgment should be entered, but the parties could not agree upon a report. Meanwhile, the Plaintiffs filed a motion for attorneys' fees. The Defendants then filed a notice of appeal to the Tenth Circuit. The parties eventually resolved their dispute and the appeal was dismissed. The Plaintiffs then moved in the Court to withdraw their motion for attorneys' fees and that the case be closed. The Court subsequently held a status hearing to address concerns about granting the motion or entering judgment without first notifying the class. After reviewing the history of the case, and the Plaintiffs' unopposed motion to dismiss, Judge Broomes is satisfied that the motion to dismiss can be granted and judgment can be entered without prior notice to the class. He finds that the Plaintiffs' claim for damages, which was certified under Rule 23(b)(3), was disposed of on the merits by the Tenth Circuit, and no aspect of that claim is subject to Rule 23 (e). The claim for declaratory relief was potentially a class action claim under Rule 23(b)(2), but was never certified for class action treatment. Even had it been certified, notice to class members is not mandatory in a Rule 23(b)(2) claim, as Plaintiffs point out. At any rate, the absence of certification on this claim means that no part of the claim for declaratory relief, or of the related motion for attorneys' fees, is subject to the notice requirements of Rule 23. For these reasons, he granted the Plaintiffs' Unopposed Motion to Dismiss, and dismissed with prejudice the action pursuant to Fed. R. Civ. P. 42(a)(2). He denied as moot all other pending motions, including Docs. 197, 207, 215, 225, 226, and 230. A full-text copy of the Court's Oct. 3, 2018 Memorandum and Order is available at https://is.gd/Yyzwfe from Leagle.com. Candace Fox, Individually and on Behalf of a Class of All Others Similarly Situated, Anthony Gillespie, Individually and on Behalf of a Class of All Others Similarly Situated & Charles Schreckenbach, Individually and on Behalf of a Class of All Others Similarly Situated, Plaintiffs, represented by Daniel M. Runion -- drunion@sls-law.com -- Shaffer Lombardo Shurin PC, Gregory P. Forney, Shaffer Lombardo Shurin PC, Gregory Leyh , Gregory Leyh, PC & Richard F. Lombardo -- rlombardo@sls-law.com -- Shaffer Lombardo Shurin PC. Transam Leasing, Inc. & TransAm Trucking, Inc., Defendants, represented by Christopher Marshall McHugh -- cmchugh@sb-kc.com -- Sigfreid Bingham, PC, Gregory S. Gerstner, Seigfreid Bingham, PC, James C. Sullivan, Polsinelli PC, Rachel H. Baker, Seigfreid Bingham, PC & Shannon Cohorst Johnson -- sjohnson@sb-kc.com -- Seigfreid Bingham, PC. TransAm Trucking, Inc. & Transam Leasing, Inc., Counter Claimants, represented by Christopher Marshall McHugh, Seigfreid Bingham, PC, Gregory S. Gerstner , Seigfreid Bingham, PC, James C. Sullivan, Polsinelli PC, Rachel H. Baker, Seigfreid Bingham, PC & Shannon Cohorst Johnson, Seigfreid Bingham, PC. Candace Fox, Individually and on Behalf of a Class of All Others Similarly Situated, Anthony Gillespie, Individually and on Behalf of a Class of All Others Similarly Situated & Charles Schreckenbach, Individually and on Behalf of a Class of All Others Similarly Situated, Counter Defendants, represented by Daniel M. Runion, Shaffer Lombardo Shurin PC, Gregory P. Forney, Shaffer Lombardo Shurin PC, Gregory Leyh, Gregory Leyh, PC & Richard F. Lombardo, Shaffer Lombardo Shurin PC. TREASURE ISLAND: Faces Class-Action From Non-Unionized Workers -------------------------------------------------------------- Greg Trotter, writing for Chicago Tribune, reports that Treasure Island Foods is facing another lawsuit -- this one from nonunionized workers who say they weren't given sufficient layoff notice under state and federal law. The lawsuit, which is seeking class-action status, was filed in federal court in Chicago on October 11. The 10 former Treasure Island workers who filed the lawsuit allege the company violated the state and federal Worker Adjustment and Retraining Notification acts because it didn't give workers the 60-day notice that's typically required for mass layoffs. The workers also allege that Treasure Island violated the Illinois Wage Payment and Collection Act because it didn't pay employees for accrued but unused paid time off, according to the lawsuit filed on October 11. Treasure Island, which first opened in 1963, ended its long run in Chicago on October 10 by closing the last of its remaining six stores. The company notified workers late last month that the company would close all stores by Oct. 12. The former workers who filed the lawsuit are Mark Gossett, Sandra Roman, Telia Wilson, Timikii Coburn, Antonia Morales, Antonio Munoz, Jesse Lofton, David Leon, Kevin Jackson and Lorenzo Escamilla Jr. The lawsuit estimates the allegations apply to about 400 former Treasure Island employees. They're suing the corporate entities that operated the Treasure Island stores, CEO Maria Kamberos and President Christ Kamberos. Patrick Cavanaugh, a partner in High Ridge Partners, the liquidation firm now managing the company's assets, also was named in the suit. Arthur Stamas, Esq. attorney for the Kamberos family, couldn't be immediately reached for comment. A similar lawsuit was filed by the United Food and Commercial Workers International Union, which represents 28 employees. The union also alleged Treasure Island violated the WARN legal requirements. Longtime produce wholesaler Anthony Marano Co. sued Treasure Island last week over more than $450,000 in allegedly unpaid produce. Recent court filings indicate the grocery company owes $900,000 in total to its produce vendors.[GN] TREASURE ISLAND: TCPA Suit Challenges Use of A.I. ------------------------------------------------- Eric J. Troutman, writing for TCPland, reports that in what may be a TCPAland first, an artificial intelligence SMS platform powered by Watson and known as "Ivy" is being tested in a TCPA class action. Although numerous hotels are known to use Ivy, the case filed yesterday in a Las Vegas federal court is against famed resort Treasure Island, LLC. The suit is entitled Jessica Demesa v. Treasure Island, LLC. According to the complaint Ivy is a sophisticated A.I. platform that can help meet a hotel guest’s needs, thus enhancing customer experience and ultimately driving revenue. The complaint explains that IBM’s Watson technology drives Ivy and helps the A.I. platform communicate with guests to fulfill requests such as obtaining towels and hotel restaurant recommendations. Plaintiff alleges that she received a text message from Ivy shortly after checking in at the Treasure Island resort. According to the complaint she did not consent to be texted. The complaint alleges a putative class of: All persons who, during the four years prior to the filing of the Complaint in this action through the date of class certification, received one or more text messages from the Ivy concierge by TI. It will be very interesting to see how this case develops and we will keep an eye on it for you.[GN] TRUMAKER INC: Andrews Files ADA Suit in New York ------------------------------------------------ A class action lawsuit has been filed against Trumaker, Inc. The case is styled as Victor Andrews individually and as the representative of a class of similarly situated persons, Plaintiff v. Trumaker, Inc., Defendant, Case No. 1:18-cv-06273 (E.D. N.Y., Nov. 5, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. Trumaker, Inc. designs and manufactures shirts and blazers for men in the United States. The company also offers sweaters, tees, belts, ties, casuals, and accessories. It sells its products online. Trumaker, Inc. was formerly known as Archer & Reed, Inc.[BN] The Plaintiff is represented by: Dan Shaked, Esq. Shaked Law Group, P.C. 44 Court Street, Suite 1217 Brooklyn, NY 11217 Phone: (917) 373-9128 Fax: (718) 504-7555 Email: shakedlawgroup@gmail.com UNITED STATES: ICE Ordered to Unseal Iraqi Detainees' Documents --------------------------------------------------------------- Sarah Kominek, writing for The Arab American News, reports that per the request of the American Civil Liberties Union of Michigan, U.S. District Judge Mark A. Goldsmith ordered U.S. Immigration and Customs Enforcement to unseal secret documents that show ICE's prior statements to the court. ACLU attorneys appeared before Judge Goldsmith on Wednesday, Oct. 24 to argue for immigration authorities' release of more than 100 Iraqi nationals who have been detained since June 2017. "We are delighted that the detainees, their families and the public, all of whom deserve to know the truth, will finally be able to learn what is really happening in this case," ACLU senior staff attorney Miriam Aukerman said in a statement before the hearing. "Now everyone can see the evidence for themselves. And what that evidence shows is that ICE provided false information to the Court in order to keep these Iraqis locked up, separated from the families, for the past 16 months." The ACLU requested sanctions against ICE for submitting prior false statements to the court, which resulted in continued detention of the Iraqis. According to the ACLU's press release on Oct. 23, the recent ruling by Judge Goldsmith is the latest development in Hamama v. Adduci, the nationwide class action filed in June 2017 on behalf of hundreds of Iraqi nationals who were arrested and threatened with immediate deportation. The lawsuit argues that many of the Chaldean Christian Iraqis would face persecution or death if they returned to Iraq. "The purpose of immigration detention in this case is to break people's spirits," Ms. Aukerman said, "to make them give up their cases and agree to go to a country where they're likely to be persecuted, tortured or killed. It's solely to separate them from their families, to leave the country which for many of them is the only one they've known since they were children. It's a horrible choice that people are being forced to make, between indefinite detention here and removal to country where death may await." During the hearing, ACLU attorneys told Judge Goldsmith the detainees should go free. Ms. Aukerman said the ACLU asked for their release because, "their incarceration was founded on lies and blatant misrepresentation to the court." "The issues on the table were honesty and freedom," Ms. Aukerman told The AANews. "ICE lied to the court. Individuals are supposed to be released if the country that they're supposed to be expatriated to won't take them back. ICE knew that it could not return these individuals and told the court that there was an agreement for the return." Ms. Aukerman said that when the ACLU approached the court for the release of the detainees about six months after their incarceration, ICE responded with a sworn statement that Iraq did plan to receive them. "It turned out that was just lies," she said. "We didn't know it at the time. But when we saw the documents we saw that they were providing false information to the court." ICE attorney Joseph Darrow told the court that delays are either results of court orders or difficulties obtaining travel documents. He said ICE plans to remove those with appropriate travel documents and plans to deport some Iraqis by the end of November. ICE also denied making any falsehoods to the court. "Under our Constitution, we don't lock people up indefinitely and throw away the key," Ms. Aukerman said. "People are only locked up for a reason. Typically that's because they're locked up for punishment, but with immigration people are supposed to be in detention for a short time until they can get the documents together and get them on a plane to leave the country. "It's incarceration without trial," she added. "We were very hopeful that the court understood that, being 16 months into this case." She also said these are people under orders of supervision and reporting regularly to ICE. "There's absolutely no reason they should be locked up this long," she said. "We are very hopeful that at long last these families will get to be reunited and the individuals will be able to return home after this much time. We very much hope [Judge Goldsmith] will reunite these families who have been separated for far too long." Judge Goldsmith did not issue a ruling at the hearing. [GN] UNIVERSITY OF SOUTHERN: 93 Additional Women File Sex Abuse Suits ---------------------------------------------------------------- Joseph H. Saunders, writing for The Legal Examiner, reports that on Thursday October 18, 93 additional women filed lawsuits against the University of Southern California University claiming the school purposefully concealed sexual abuse by former campus gynecologist George Tyndall. This brings the total number of Tyndall accusers to about 500. The following day, The University of Southern California announced it had reached a tentative class action settlement agreement worth $215 million over allegations of sexual harassment and abuse by Tyndall. According to a university lawyer, the proposed settlement would provide $2500 to any of the approximately 17,000 students and alumnae who were treated by Tyndall over his three-decade tenure. They won't be required to provide additional information about their interaction with Tyndall to receive those funds. Any former student who alleges they were abused can seek additional money up to $250,000 by detailing their experience with Tyndall. This proposed settlement by USC only applies to the federal class-action lawsuit and does not automatically resolve more than 400 other suits against Tyndall and USC playing out in Los Angeles Superior Court. Critics immediately accused USC of using the settlement to shut down the investigation of the schools handling of Tyndall. Investigations have revealed that USC had received complaints against Tyndall as early as 2000. Other victims have since come forward with earlier abuse claims dating back as far as the 1990's. Despite all the complaints filed against Tyndall, the doctor wasn't fired until 2016, and that only came after colleagues discovered a box full of pictures of female genitalia in his office. It is easy to see why USC might want to end the inquiry and avoid releasing more documents supporting the claims of a cover-up. The university has been dogged by accusations of secrecy since the investigation into Tyndall began. His departure came after an internal investigation into allegations of sexual harassment and racially inappropriate remarks. An investigation by the Los Angeles Times subsequently revealed that Tyndall left under a secret deal that included a financial payout. But most troublesome is the incredibly low amount of the settlement. After being allowed to prey on students for almost three decades, $250 million doesn't even begin to adequately compensate the victims of George Tyndall. By comparison, the 332 women and girls who say they were sexually assaulted by sports doctor Larry Nassar were given a $500-million settlement by Michigan State University. All indications are that USC is making the proposed settlement because they want the abuse cases to go away as soon as possible. and thus avoid more disclosure and adverse publicity. This offer wasn't made to benefit the victims, but rather to help the university save face. If this $250 million settlement is accepted, the big winner will be the USC. Meanwhile prosecutors in the Los Angeles County district attorney's sex crimes division are still evaluating whether to file criminal charges against George Tyndall in at least 56 potential cases. USC knowingly allowed a sexual predator to continue to prey on young women and then went so far as to silence complaints regarding Tyndall while he continued to molest victims. At Saunders & Walker we have a long history representing victims of sexual assault and realize how difficult it may for victims to come forward. George Tyndall victimized and sexually abused young women at the University of Southern California for almost three decades while they knowingly allowed this predator to continue practicing. If you were a patient of Doctor Tyndall. Please contact Saunders & Walker at 1-800-748-7115 to discuss your legal options. All legal discussions will be strictly confidential and your identity will be protected in any subsequent lawsuit. [GN] V.F. JEANSWEAR: Faces Fischler ADA Class Action ----------------------------------------------- A class action lawsuit has been filed against V.F. Jeanswear, Inc. The case is styled as Brian Fischler individually and on behalf of all other persons similarly situated, Plaintiff v. V.F. Jeanswear, Inc. doing business as: Wrangler, Defendant, Case No. 1:18-cv-06263 (E.D. N.Y., Nov. 4, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. VF Jeanswear Limited Partnership manufactures and markets denim, casual pants, shirts, fleece, and knit apparel for men and women under brand names Lee, Wrangler, Rustler, Riders, and Vans. The company was incorporated in 2000 and is based in Greensboro, North Carolina. VF Jeanswear Limited Partnership operates as a subsidiary of V.F. Corporation.[BN] The Plaintiff is represented by: Douglas Brian Lipsky, Esq. Lipsky Lowe LLP 630 Third Avenue Fifth Floor New York, NY 10017 Phone: (212) 392-4772 Fax: (212) 444-1030 Email: doug@lipskylowe.com - and - Christopher Howard Lowe, Esq. Lipsky Lowe LLP 630 Third Avenue New York, NY 10017 Phone: (212) 392-4772 Fax: (212) 444-1030 Email: chris@lipskylowe.com VIP KIDZ: Castro Sues Over Unpaid Overtime Wages ------------------------------------------------ Dagma Daniel Castro on behalf of herself and similarly situated employees, Plaintiff, v. VIP Kidz, LLC, a Florida limited liability company, Defendant, Case No. 9:18-cv-81518-RLR (S. D. Fla. November 5, 2018) seeks recovery of unpaid overtime compensation owed to Plaintiff and similarly situated employees, pursuant to the Fair Labor Standards Act. On many occasions throughout her employment with Defendant, Plaintiff worked in excess of forty hours per week and was not paid overtime, says the complaint. Plaintiff is an individual residing in Palm Beach County, Florida. Castro was at all material times hereto an employee of VIP Kidz. Defendant does business in South Florida as an owner and operator of two day care facilities in West Palm Beach and Loxahatchee Groves, Florida, that caters to and provides skilled nursing care to children ages birth to 21 years of age with special medical needs.[BN] The Plaintiff is represented by: Christopher C. Copeland, Esq. CHRISTOPHER C. COPELAND, P.A. 824 W. Indiantown Road Jupiter, FL 33458 Phone: 561-691-9048 Fax: 866-259-0719 Primary email: Chris@,CopelandPA.com Secondary email: Carla@CopelandPA.com VOLKSWAGEN: Quinn Emanuel Files Class Action Over Airbags --------------------------------------------------------- Quinn Emanuel Urquhart and Sullivan (Quinn Emanuel) has expanded its class actions to include a seventh car manufacturer who sold cars with deadly airbags to consumers. In October Quinn Emanuel filed class action proceedings against Volkswagen (VW). This is the seventh class action. Actions have already been commenced against Toyota, Mazda, Honda, Subaru, BMW and Nissan. These proceedings are being heard concurrently in the Supreme Court of New South Wales. Quinn Emanuel is expecting to file against Ford and Audi shortly, covering an expected 2.5 million Australian drivers who are driving cars fitted with the defective airbags. The defective airbags have been linked to the deaths of at least 24 people worldwide, including one in Sydney last year, as well as injuring hundreds of others. Quinn Emanuel Partner Damian Scattini said, "These airbags are ticking time bombs. Over time they degrade. As they degrade they become unsafe. On our case, these manufacturers knew these airbags were dangerous, but kept using them in their vehicles – putting profits before the safety of their customers." "Car manufacturers have known about this problem for years. These airbags need to be off the road," Mr Scattini said. Consumers are being urged to check if their vehicle is subject to the recall and to act immediately, if a replacement airbag is available. Due to a global shortage of airbags however, many Australian drivers are only being offered a temporary fix, with a like for like replacement meaning that their airbag will have to be replaced again in the future. In many cases, the replacement airbags contain the same propellant used in the defective airbags, ammonium nitrate, which deteriorates over time. Consumers are still encouraged to obtain a temporary fix, as a newer defective airbag is preferable to an older defective airbag. "It's about responsibility and accountability. Car manufacturers need to make good the harm they've done to their customers. No more. No less", said Mr Scattini. If you are a consumer whose vehicle was, or is, subject to the Takata airbag recall, you may be entitled to participate in the class action proceedings. You are not excluded from participating if you have acted to have your faulty airbag replaced. Please register your interest at: www.AirbagRecall.com.au [GN] WELLS FARGO: Faces Class Action in San Francisco Over Robocalls --------------------------------------------------------------- KITV4 ABC reports that a proposed class action lawsuit in San Francisco federal court accuses Wells Fargo of making tens of thousands of automatically dialed, or 'robo,' calls to cell phones without consumers' consent. [GN] WILLIAMS-SONOMA INC: Violates Disabilities Act, Nixon Suit Asserts ------------------------------------------------------------------- A class action lawsuit has been filed against Williams-Sonoma, Inc. The case is styled as Donald Nixon on behalf of himself and all others similarly situated, Plaintiff v. Williams-Sonoma, Inc., Defendant, Case No. 1:18-cv-06136 (E.D. N.Y., Nov. 1, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. Williams-Sonoma, Inc., is an American publicly traded consumer retail company that sells kitchenwares and home furnishings. It is headquartered in San Francisco, California, United States. It is one of the largest e-commerce retailers in the U.S., and one of the biggest multi-channel specialty retailers in the world.[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 YNAP CORPORATION: Violates ADA, Dominguez Suit Says ---------------------------------------------------- A class action lawsuit has been filed against YNAP Corporation. The case is styled as Yovanny Dominguez on behalf of himself and all others similarly situated, Plaintiff v. YNAP Corporation, Defendant, Case No. 1:18-cv-10165 (S.D. N.Y., Nov. 1, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. YNAP Corporation designs and sells fashion products under the Karl Lagerfeld brand name worldwide. The company offers ready-to-wear for men and women, accessories, bags, watches, and eyewear; urban menswear and fragrances; and kids wear. It also operates Karl.com, an online store for women. YNAP Corporation offers products through its retail stores and wholesale locations. The company was incorporated in 2002 and is based in New York, New York. YNAP Corporation operates as a subsidiary of YOOX Net-A-Porter Group S.p.A.[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 ZILLOW GROUP: Court Grants Bid to Dismiss Securities Suit --------------------------------------------------------- In the case, In re Zillow Group, Inc. Securities Litigation, Case No. C17-1387-JCC (W.D. Wash.), Judge John C. Coughenour of the U.S. District Court for the Western District of Washington, Seattle, (i) granted the Defendants' motion to dismiss, and (ii) granted in part and denied in part their requests for judicial notice. The Plaintiffs bring the putative class action against Zillow on behalf of purchasers of Zillow securities, alleging violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, Securities and Exchange Commission Rule 10b-5, and Sections 11 and 15 of the Securities Act of 1933. The Plaintiffs also name as Defendants, Spencer Rascoff and Kathleen Phillips, Zillow's CEO and CFO/Chief Legal Officer, respectively. They've filed a consolidated amended complaint. Zillow is an online leader in real estate marketing. Through its website and online applications, the company provides users with information about homes, real estate listings, and mortgages. Zillow's primary source of revenue comes from real estate agents who pay to have their properties listed on Zillow's digital platforms. In 2013, Zillow created an advertising product known as the "co-marketing program." Essentially, the program allows participating mortgage lenders to pay a percentage of a real estate agent's advertising costs directly to Zillow in exchange for appearing on the agent's listings and receiving some of the agent's leads. On April 1, 2015, Zillow received a subpoena from the Consumer Financial Protection Bureau ("CFPB") requesting information about some of the company's products, including the co-marketing program. In February 2017, Zillow received a Notice and Opportunity to Respond and Advise ("NORA") letter from the CFPB, which stated that the agency was considering whether to recommend legal action against Zillow for violation of Section 8 of the Real Estate Settlement Procedures Act ("RESPA"). Zillow responded to the NORA in March 2017, and the following month received another civil investigative demand from the CFPB. On May 4, 2017, Zillow revealed in a quarterly filing with the SEC that it had received the NORA and civil investigative demand from the CFPB. On Aug. 8, 2017, it revealed the updated status of the CFPB's investigation in a filing with the SEC. In the two trading days following Zillow's update regarding the CFPB's investigation into the co-marketing program, the company's Class A shares fell 15.7% and its Class C shares fell 15.5%. Plaintiffs Harris, Offut, and Choy purchased Zillow shares between June 2017 and Aug. 8, 2017. They allege that they purchased Zillow shares at an artificially inflated price, and were damaged when the Defendants' material misrepresentations regarding the co-marketing program and CFPB investigation were ultimately disclosed in Zillow's August 2017 SEC filing. The matter comes before the Court on the Defendants' motion to dismiss and requests for judicial notice. They ask the Court to consider several documents that they assert are either judicially noticeable or that are incorporated by reference in the amended complaint. They ask the Court to consider the following documents: (1) Zillow's Form 10-K filed February 7, 2014; (2) materials published by the Department of Housing and Urban Development; (3) Zillow's Form 10-K filed February 17, 2015; (4) Zillow's Form 10-Q filed May 4, 2017; (5) Zillow's Form 10-Q filed August 8, 2017; (6) Zillow's Form 10-Q filed November 7, 2017; (7) a certified transcript from a Zillow webinar presented on March 23, 2015; (8) a transcript of a May 4, 2017 earnings conference call; (9) Zillow's Form 4 filed May 9, 2017 concerning Phillips' sale of Zillow stock; (10) Zillow's Schedule 14A Proxy Statement filed April 26, 2017; (11) Zillow's Form 4 filed February 17, 2015 concerning Phillips' sale of Zillow stock; and (13) excerpts from the Merger and Agreements between Zillow, Zebra Holdco, Inc., and Trulia, Inc., from July 28, 2014. They separately request that the Court considers a Form 8-K filed by Zillow with the SEC on June 25, 2018. Among other things, Judge Coughnour finds that the amended complaint does not contain particularized facts that demonstrate Zillow designed the co-marketing program to violate RESPA and to allow lenders and agents to conceal such violations. Nor does the amended complaint sufficiently allege that the co-marketing program was facilitating RESPA violations. Turning to the specific statements the Plaintiffs assert were false or misleading, the Judge finds (i) that the Plaintiffs have failed to provide particularized facts to demonstrate that the Defendants' statements regarding Zillow's legal compliance were misleading; (ii) that Phillips' failure to disclose the April 2015 subpoena did not render her statements to investors, or any previous statement by Zillow, misleading; (iii) without additional particularized facts regarding the reasons Zillow altered the comarketing program, the Plaintiffs have failed to allege that Phillips and Rascoff's statements were misleading or false; and (iv) all of the statements, particularly in light ofthe Plaintiffs' failure to allege a RESPA violation, demonstrate that the allegations in the amended complaint do not support a strong inference of scienter. For these reasons, Judge Coughenoour granted the Defendants' motion to dismiss. The Judge granted in part and denied in part the Defendants' request for judicial notice. The Plaintiffs' Exchange Act claims as pled in counts I and II are dismissed without prejudice and with leave to amend. In accordance with the Court's rulings, if the Plaintiffs choose to file a second amended complaint, they must assert particularized facts that demonstrate that Zillow designed the co-marketing program to violate RESPA, and that Zillow was instructing and encouraging third-parties to commit such violations. The Plaintiffs must additionally allege with particularity that the Defendants made material false or misleading statements regarding the co-marketing program's compliance with RESPA, that the Defendants' statements evinced a strong inference of scienter, and that such statements caused the loss alleged by the Plaintiffs. The second amended complaint will be filed within 45 days of the Order. The Plaintiffs' Securities Act claims as alleged in counts III and IV are dismissed with prejudice. A full-text copy of the Court's Oct. 2, 2018 Order is available at https://is.gd/lrelXg from Leagle.com. James Shotwell, individually and on behalf of all others similarly situated, Plaintiff, represented by Clifford A. Cantor -- cliff.cantor@outlook.com. Jo Ann Offutt, Raymond Harris & Johanna Choy, Plaintiffs, represented by Jonathan Stern -- tern@rosenlegal.com -- THE ROSEN LAW FIRM, PA, pro hac vice, Laurence M. Rosen -- lrosen@rosenlegal.com -- THE ROSEN LAW FIRM PA, pro hac vice, Colin M. George -- cgeorge@hallgeorge.com -- HALL & GEORGE PLLC & Spencer Hall, Jr., HALL & GEORGE PLLC. Stephen Vargosko, Individually and on behalf of all othes similarly situated, Consol Plaintiff, represented by Jonathan Stern, THE ROSEN LAW FIRM, PA, pro hac vice, Laurence M. Rosen, THE ROSEN LAW FIRM PA, pro hac vice & Colin M. George, HALL & GEORGE PLLC. Zillow Group, Inc, Spencer M. Rascoff & Kathleen Philips, Defendants, represented by Alexander Mircheff -- amircheff@gibsondunn.com -- GIBSON DUNN & CRUTCHER LLP, pro hac vice & Meryl L. Young -- myoung@gibsondunn.com -- GIBSON DUNN & CRUTCHER, pro hac vice. ZIMMER BIOMET: Judge Dismisses Securities Class Action ------------------------------------------------------ Ambrogio Visconti, writing for Global Legal Chronicle, reports that on September 27, 2018, Judge Philip P. Simon of the U.S. District Court for the Northern District of Indiana dismissed all claims against Simpson Thacher client KKR Biomet LLC in Shah v. Zimmer Biomet Holdings, Inc. The putative class action asserts securities fraud claims against Zimmer Biomet Holdings, Inc. ("ZBH"), its officers and directors, alleging that ZBH misstated or failed to disclose regulatory compliance problems at one of its manufacturing facilities. Plaintiffs also asserted claims against KKR Biomet and other former private equity investors in ZBH which sold their shares in two public offerings during the relevant period. Plaintiff asserted these claims under Section 12(a)(2) of the Securities Act, alleging misstatements in the offering documents, and 20A of the Exchange Act, alleging that the sponsors sold stock while in possession of material non-public information. The court dismissed the Section 12(a)(2) claims on the ground that KKR Biomet LLC and the other private equity defendants were not "statutory sellers" because they sold their stock to underwriters, not to the public. The court dismissed the Section 20A claims because the Plaintiffs failed to allege that the private equity defendants actually possessed material non-public information. The Simpson Thacher team included Peter Kazanoff and Daniel Stujenske -- dstujenske@stblaw.com -- (Litigation). Involved fees earner: Peter Kazanoff – Simpson Thacher & Bartlett; Daniel Stujenske – Simpson Thacher & Bartlett; Law Firms: Simpson Thacher & Bartlett; Clients: KKR Biomet LLC [GN] ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2018. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000. *** End of Transmission ***