/raid1/www/Hosts/bankrupt/CAR_Public/181115.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, November 15, 2018, Vol. 20, No. 229
Headlines
ADIENT PLC: Pomerantz Law Files Class Action Lawsuit
ADS ALLIANCE: Files Joint Bid w/ Al-Sabur for Certification, Notice
AEROHIVE NETWORKS: Continues to Defend McGovney Class Action
ALIBABA GROUP: Order on Redacted Docs in Securities Suit Issued
ALLIANCEONE RECEIVABLES: Class Certification Sought in Voeks Suit
ALNYLAM PHARMA: Vincent Wong Files Securities Class Action
ALPHABET INC: Vincent Wong Files Securities Class Action
AMERICAN WATER: $40MM Accrued Liabilities in Chemical Spill Suit
AMERICAN WATER: Court Issues Written Order Denying WVAWC Doctrine
ANALOGIC CORP: L. Buttny Named Lead Plaintiff in Securities Suit
ASSET CAMPUS: 9th Cir. Affirmed Summary Judgment in Jang Suit
BANK OF NEW YORK: Dismissal of Beverly with Prejudice Affirmed
BANNER BANK: Court Certifies 3 Classes in Bolding FLSA Suit
BITCONNECT: New Class Action Combines All Former Suits
CALIFORNIA: Court Denies Bid to Dismiss Minors' ADA Suit
CAMDEN COUNTY, GA: $12MM Agnone Suit Deal Prelim Approval Endorsed
CAMPBELL SOUP: Levi & Korsinsky Files Class Actions
CAPITAL TITLE: Moore Suit Dismissal with Prejudice Reversed
CARLYLE GROUP: Approval of Settlement in Cobalt Case Sought
CAVALRY PORTFOLIO: Berardi Dismissed w/ Prejudice from FCRA Suit
CENTERPLATE OF DELAWARE: Class Certification Sought in "Raquedan"
CF MANAGEMENT-IL: Certification of Personal Trainers Class Sought
CHAPIN SCHOOL: Court Certifies Class in Singer Equipment Suit
CHATHAM LODGING: Still Defends Ruffy and Doonan Class Suits
CHEGG INC: Bragar Eagel Files Class Action Lawsuit
CHESAPEAKE APPALACHIA: Court Refuses to Certify Class in Lutz Suit
CONSUMER PROTECTION: Sued Over Unwanted Cellular Telephone Calls
COWEN INC: Landol Fletcher Class Suit Remains Pending
CREDIT CONTROL: Thigpen Sues Over Erroneous Auto-dialed Calls
CSI COMPANIES: Udoewa Labor Suit to Recover Unpaid Overtime
DISCOVER FINANCIAL: Class Suit by B&R Supermarket Ongoing
DISTRICT OF COLUMBIA: Maldonado Seeks Certification of Class
DIVURGENT LLC: $2.45MM Hatzey Suit Settlement Has Court Approval
ELECTROLUX HOME: Certification of Classes Sought in Elward Suit
ENERGY TRANSFER: WeissLaw Files Class Action Lawsuit
FRONTIER AIRLINES: Ridgell Moves to Certify 2 Classes of Passengers
FUNKO INC: Kaskela Law Files Class Action Lawsuit
FUNKO INC: Rosen Law Firm Files Securities Class Action Lawsuit
GENERAL MOTORS: Continues to Defend Economic Loss-Related Suits
GENERAL MOTORS: Supreme Court Denies Objector's Appeal
GENKI SUSHI: $4.5MM Settlement Reached in Hepatitis A Lawsuit
GENWORTH FINANCIAL: Faces Burkhart Class Action in Delaware
GOLDMAN SACHS: Wants to Weed Out Women in Class-Action Suit
GOOGLE LLC: Singh Appeals N.D. California Ruling to Ninth Circuit
GROUPON INC: Bid to Remand Dancel Suit to State Court Denied
HASBRO INC: Vincent Wong Files Securities Class Action
HEALTH CARE SERVICE: Seeks Final OK of $3.75M ERISA Suit Deal
HENDERSON KITCHEN: Claims in Tong's FLSA Suit Narrowed
HUAZHU GROUP: Vincent Wong Files Securities Class Action
HYATT HOTELS: 3d Cir. Affirms Summary Judgment in Livi Labor Suit
HYATT HOTELS: Continues to Defend Illinois Class Suit
KRAFT HEINZ: Class Certification Bid in Vazquez Suit Partly Granted
LIQUIDITY SERVICES: $17MM Howard Suit Settlement Has Final Approval
LOGMEIN INC: Scott+Scott Attorneys Files Securities Class Action
MACQUARIE INFRASTRUCTURE: Expects 2 Class Suits to be Consolidated
MAGELLAN HEALTH: Court Conditionally Certifies Class in Deakin Suit
MARICOPA COUNTY, AZ: Summary Ruling in Hees Suit Affirmed
MDL 2286: Court OKs Cy Pres Distribution of Residual Deal Funds
MDL 2672: Court Issues Discovery Dispute Order in Clean Diesel Suit
MGT CAPITAL: Vincent Wong Files Securities Class Action
MICROCHIP TECHNOLOGY: Levi & Korsinsky Files Class Actions
MIDLAND CREDIT: Santiago Files Suit Over Autodialed Calls
MONTEREY FINANCIAL: Can Compel Arbitration in Cintron FDCPA Suit
MONTEREY FINANCIAL: Lagrou Moved to E.D. Wash.
MOVEMENT MORTGAGE: Blumenthal Nordrehaug Files Class Action Lawsuit
NATIONAL RESEARCH: Court Dismisses Consolidated Shareholder Suit
NISSAN NORTH AMERICA: Court Narrows Claims in Knotts Suit
OAKWOOD, OH: Restitution Summary Ruling Bid in Thompson Suit OK'd
OCEAN PRIME: AdCloud Replaces Mayer & Lee as Class Rep
ON MY OWN: Court Enters Show Cause Order in Hartley FLSA Suit
OPEN DOOR: $125K Settlement in "Jennings" FLSA Suit Has Approval
PETSMART INC: $700K Settlement in Lepine Suit Has Final Approval
PREMIER NUTRITION: Reaches $9MM Class Action Settlement
PREMIER PALLET: T. White FLSA Suit Settlement Has Court Approval
PRETIUM RESOURCES: Pomerantz Law Files Class Action
PROGRESSIONS BEHAVIORAL: Court Certifies Class in Charles FLSA Suit
RAYMOND JAMES: Class of Customers Certified in Brink Suit
RHODE ISLAND: Settlement with Drivers' Union Has Prelim Approval
SAVANNAH LAW SCHOOL: Cliff Suit Remanded to Georgia State Court
SCHELL & KAMPETER: Bid to Dismiss Briefing Sched in Grossman Issued
SCOTT FARMS: Certification of FLSA Class Sought in Mondragon Suit
SENOMYX INC: Rowe Seeks to Halt Sale to Firmenich
SOUTH AFRICA: Sick Miners to Bring Class Action Lawsuit
SPEEDSTER SERVICES: $4K O'Neill FLSA Suit Settlement Has Approval
SPIRIT AEROSYSTEMS: Boeing's Indemnification Suit Now Closed
SUNPOWER CORP: Securities Suit Dismissed Without Leave to Amend
SUPERCOM INC: New York Court Dismisses Securities Suit
SWIFT TRANSPORTATION: Slack Suit Settlement Has Prelim Approval
TD AMERITRADE: Court Narrows Claims in Krukever Suit
TEVA PHARMA: Valsartan Class Action Filed in New Jersey
TREVENA INC: Tomaszewski Hits Share Price Drop Over FDA Dispute
TRUNKETT & TRUNKETT: Jennings FDCPA Suit Dismissed w/o Prejudice
UBER TECHNOLOGIES: Faces Class Action in Victoria
UNILEVER US: Browning Moves to Certify Five Classes of Consumers
UNITED STATES: $422K Settlement in Courval Suit Has Final Approval
UNITED STATES: Wang's Class Cert. Bid Gets Provisional Approval
UNITEDHEALTHCARE: ERISA Suit Moved to Utah District Court
VIGO COUNTY, IN: Partial Summ. Judgment Bid in Huerta Suit Granted
VITALE'S PIZZERIA: Callier Moves to Certify Class Under FLSA
WALT DISNEY: Valenzuela Seeks Certification of 2 Employees Class
WECONNECT INC: Petitions Supreme Court for Writ of Certiorari
WINDSTREAM COMMS: Summary Judgment in Kimberling Suit Affirmed
WIRELESS VISION: Court Issues Protective Order in Arteaga FLSA Suit
*********
ADIENT PLC: Pomerantz Law Files Class Action Lawsuit
----------------------------------------------------
Pomerantz LLP disclosed that a class action lawsuit has been filed
against Adient plc. ("Adient or the "Company") (NYSE: ADNT) and
certain of its officers. The class action, filed in United States
District Court, Southern District of New York, and indexed under
18-cv-09630, is on behalf of a class consisting of all persons and
entities, other than Defendants and their affiliates, who purchased
or otherwise acquired Adient securities between October 31, 2016
and June 11, 2018, both dates inclusive (the "Class Period"),
seeking to recover damages caused by Defendants' violations of the
federal securities laws and to pursue remedies under Sections 10(b)
and 20(a) of the Securities Exchange Act of 1934 (the "Exchange
Act") and Rule 10b-5 promulgated thereunder, against the Company
and certain of its top officials.
If you are a shareholder who purchased Adient securities between
October 31, 2016, and June 11, 2018, both dates inclusive, you have
until December 3, 2018, to ask the Court to appoint you as Lead
Plaintiff for the class. A copy of the Complaint can be obtained
at www.pomerantzlaw.com. To discuss this action, contact Robert
S. Willoughby at rswilloughby@pomlaw.com or 888.476.6529 (or
888.4-POMLAW), toll-free, Ext. 9980. Those who inquire by e-mail
are encouraged to include their mailing address, telephone number,
and the number of shares purchased.
Adient is an Irish corporation headquartered in Dublin. The Company
was formed in late October 2016, when Johnson Controls
International plc ("Johnson") completed the spinoff of its
automotive seating and interiors business. Adient has 85,000
employees and operates 238 manufacturing/assembly plants in 34
countries worldwide. The Company designs, engineers, and
manufactures automotive seating for all vehicle classes and all
major original equipment manufacturers ("OEMs") and claims to be
the largest global automotive seating supplier in the world. Nearly
half of its annual revenues derived from the sale of metal
components used in seat frames produced by its seat structures and
mechanisms ("SS&M") group, also called the metals group.
From the date of its formation, Adient and certain of its senior
executives highlighted improvements in the efficiency of the
Company's capital-intensive metals business (a/k/a the SS&M
business) as a key driver of its success. For example, Defendants
repeatedly emphasized to investors that the Company was "solidly on
track" to deliver 200 basis point margin expansion by 2020, a feat
that depended in large part on operational and financial
improvements in its core SS&M business.
Throughout the Class Period, Defendants made materially false and
misleading statements regarding the Company's business, operational
and compliance policies. Specifically, Defendants made false and/or
misleading statements and/or failed to disclose that: (i) Adient's
core SS&M business faced significant operational problems such that
the repeatedly touted 200-basis-point margin expansion was not "on
track"; and (ii) as a result, Adient's public statements were
materially false and misleading at all relevant times.
The truth first began to emerge during a Deutsche Bank Global Auto
Industry Conference held on January 17, 2018, where Defendants made
several startling disclosures indicating Adient was not "solidly on
track" to achieve the previously-touted 200 basis point margin
expansion.
This news drove the price of Adient shares down $8.03, or
approximately 9.8%, to close at $74.15 on January 18, 2018.
On January 29, 2018, Defendants held Adient's Q1 2018 earnings
conference call with investors. On the call, Defendants cautioned
made certain statements calling the Company's ability to achieve
its 200-basis point margin expansion into question.
This news drove the price of Adient shares down $5.53, or
approximately 7.6%, to close at $66.77 that day.
Then, on May 3, 2018, Defendants announced Adient's Q2 2018
financial results in a Form 8-K filing with the SEC. This 8-K
revealed in part that Defendants recorded a net $279 million
impairment charge related to the Company's SS&M segment.
This news drove the price of Adient shares down $6.14, or
approximately 10%, to close at $55.84 that day.
Finally, on June 11, 2018, Defendants revealed that Defendant Bruce
McDonald ("McDonald") had stepped down from his role as Chairman
and Chief Executive Officer ("CEO") effective immediately and
slashed Adient's earnings guidance.
This news drove the price of Adient shares down $8.88, or
approximately 15.6%, to close at $48.10 that day.
Robert S. Willoughby, Esq.
Pomerantz LLP
Telephone: 888-476-6529 ext. 9980
Email: rswilloughby@pomlaw.com [GN]
ADS ALLIANCE: Files Joint Bid w/ Al-Sabur for Certification, Notice
-------------------------------------------------------------------
The parties in the lawsuit entitled ARSHAD AL-SABUR, on behalf of
himself and those similarly situated v. ADS ALLIANCE DATA SYSTEMS,
INC., Case No. 2:18-cv-00957-GCS-CMV (S.D. Ohio), file with the
Court a stipulation and proposed order for conditional
certification, notice, due diligence exchange and mediation.
The parties believe they can avoid substantial litigation costs by
entering into certain stipulations, exchanging due diligence
materials, and exploring the possibility of a global settlement
with a private mediator.
The stipulated matters consist of (1) conditional certification of
the case as a collective action under the Fair Labor Standards Act,
29 U.S.C. Section 216(b), on behalf of the Plaintiff and others
similarly situated, as defined herein, (2) provisions regarding the
distribution of notice to potential opt-ins, (3) informal exchange
of documents and information between the parties enabling them to
conduct due diligence regarding the claims and issues, and (4) the
proposed mediation.
The parties stipulate that this case may be conditionally certified
by the Court as a collective action under Section 216(b) on behalf
of the Plaintiff and others similarly situated, defined as:
All current and former hourly, non-exempt employees of
Defendant in its Alliance Data Cards Services line of
business, who received a Base Hourly Wage and Additional
Remuneration1 during any workweek that they worked over 40
hours in any workweek beginning three years preceding the
filing date of this stipulation and proposed order and
continuing through the date of final disposition of this
case (the "Section 216(b) Collective Class" or the
"Section 216(b) Collective Class Members").
Following the due diligence exchange, the parties will engage in
mediation with a mediator selected by mutual consent.
The parties further agree that applicable statutes of limitations
shall be tolled between the date of filing of this Stipulation and
Proposed Order and the last day of the mediation.[CC]
The Plaintiff is represented by:
Shannon M. Draher, Esq.
Hans A. Nilges, Esq.
NILGES DRAHER LLC
7266 Portage Street, N.W., Suite D
Massillon, OH 44646
Telephone: (330) 470-4428
Facsimile: (330) 754-1430
E-mail: sdraher@ohlaborlaw.com
hans@ohlaborlaw.com
- and -
Matthew J.P. Coffman, Esq.
COFFMAN LEGAL, LLC
1457 S. High St.
Columbus, OH 43207
Telephone: (614) 949-1181
Facsimile: (614) 386-9964
E-mail: mcoffman@mcoffmanlegal.com
- and -
Daniel I. Bryant, Esq.
BRYANT LEGAL, LLC
1457 S. High St.
Columbus, OH 43207
Telephone: (614) 704-0546
Facsimile: (614) 573-9826
E-mail: dbryant@bryantlegalllc.com
The Defendant is represented by:
Gregory V. Mersol, Esq.
Gilbert P. Brosky, Esq.
Dustin M. Dow, Esq.
BAKER & HOSTETLER LLP
Key Tower; 127 Public Square, Suite 2000
Cleveland, OH 44114-1214
Telephone: (216) 621-0200
Facsimile: (216) 696-0740
E-mail: gmersol@bakerlaw.com
gbrosky@bakerlaw.com
ddow@bakerlaw.com
AEROHIVE NETWORKS: Continues to Defend McGovney Class Action
------------------------------------------------------------
Aerohive Networks, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 31, 2018, for the
quarterly period ended September 30, 2018, that the company
continues to defend itself from a consolidated class action suit
entitled, McGovney v. Aerohive Networks, Inc., et al.
In January 2018, three purported class actions were filed in the
United States District Court for the Northern District of
California against the Company and two of its officers. Those
actions were subsequently consolidated into a single action titled
as McGovney v. Aerohive Networks, Inc., et al., Case No.
5:18-cv-00435.
The consolidated complaint, as amended, alleges that the defendants
made false and misleading statements, in particular regarding the
Company's financial outlook for the fourth quarter of 2017. The
complaint asserts claims for violations of Sections 10(b) and 20(a)
of the Exchange Act and SEC Rule 10b-5 on behalf of those who
purchased the Company's common stock between November 1, 2017 and
January 16, 2018, inclusive.
The complaint seeks monetary damages in an unspecified amount.
Aerohive Networks, Inc., together with its subsidiaries, designs
and develops cloud networking and enterprise Wi-Fi solutions in the
Americas, Europe, the Middle East and Africa, and the Asia Pacific.
The company provides hardware products, such as wireless access
points, branch routers, and switches; tiered maintenance and
support services comprising technical support, bug fixes, access to
priority hardware replacement service, and unspecified upgrades;
and Software as a Service subscriptions, including comparable
maintenance and support services. Aerohive Networks, Inc. was
incorporated in 2006 and is headquartered in Milpitas, California.
ALIBABA GROUP: Order on Redacted Docs in Securities Suit Issued
---------------------------------------------------------------
In the case, Christine Asia Co., Ltd. et al., Plaintiffs, v.
Alibaba Group Holding Limited et al., Defendants, Case No.
1:15-md-02631 (CM) (SDA) (S.D. N.Y.), Judge Stewart D. Aaron of the
U.S. District Court for the Southern District of New York granted
the portion of the Plaintiffs' Letter-Motion regarding
redactions.
The case is a class action on behalf of all those who purchased
American Depository Shares ("ADSs") or call options to purchase
ADSs of China-based Alibaba Group Holding Ltd. between Sept. 19,
2014, and Jan. 29, 2015. The Defendants named in the case are
Alibaba and certain of its officers.
The Plaintiffs sued the Defendants for securities fraud in
connection with Alibaba's initial public offering ("IPO") of its
securities, in violation of Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934. They allege that Alibaba failed
to disclose that, two months before Alibaba's IPO, it was subject
to an administrative guidance law enforcement proceeding
administered by certain regulators in China, i.e., the State
Administration of Industry and Commerce ("SAIC") and seven
provincial and local Administrations of Industry and Commerce
("AICs").
In the pending Letter-Motion, the Plaintiffs assert that Alibaba
has produced thousands of documents that it partially redacted
based on "relevancy and burden," and argue that such redactions are
impermissible.
On Oct. 8, 2018, the Defendants filed a letter in opposition to the
Plaintiffs' motion, arguing that the redacted information is
irrelevant to the Plaintiffs' claims because it pertains to
communications between Alibaba and Chinese regulators other than
the SAIC and AICs, and that it is burdensome for the Defendants to
produce unredacted documents because of the review and approval
process required by Chinese law. The Defendants attached as
Exhibit 1 to their October 8 letter an example of the type of
redacted report that they withheld in order to demonstrate that the
documents contained the context necessary to show that the redacted
information does not involve the SAIC or AICs.
The Plaintiffs replied on Oct. 9, 2018. Also on October 9, the
Court ordered the Defendants to provide the Court with an
unredacted version of the English-language translation of Exhibit 1
for in camera review. On October 10, 2018, the Defendants provided
the Court and the Plaintiffs with an unredacted copy of Exhibit 1
to the Defendants' October 8 letter.
An Oral argument was held by telephone on Oct. 11, 2018.
Judge Aaron finds no reason to depart from the general rule that
relevance redactions are improper. As noted, such redactions breed
suspicions and deprive the reader of context. The very exemplar
provided by the Defendants to the Court, Exhibit 1 to their October
9 letter, was improperly redacted.
In their October 9 letter, the Defendants stated that in order to
make the nature of the redactions clear, they kept headings or
other context necessary to show that the redacted information does
not involve the SAIC or AICs. However, as the Plaintiffs' counsel
noted during oral argument, and the Defendants' counsel conceded,
there were at least three or four redactions made to Exhibit 1 that
should not have been made since they referenced Alibaba's
interactions with the SAIC and AICs. Thus, certain of the
redactions made by the Defendants, by their own admission, were
improper.
The cases cited by the Defendants during the October 11, 2018 oral
argument do not counsel a different result. Moreover, the
Stipulation and Protective Order Regarding Confidential and Highly
Confidential Information that the Court entered on Jan. 19, 2018
addresses any concerns that the Defendants may have regarding the
confidential or sensitive nature of the information redacted from
documents.
Finally, the Judge finds that the Defendants' argument regarding
burden is not persuasive. Chief Judge McMahon already has made
clear that Alibaba is required to comply with the discovery laws of
the United States. Further, in view of the errors made in
redacting Exhibit 1 to their October 9 letter, the Defendants'
counsel offered during oral argument to assume the burden of
assuring the Court that Defendants' redactions do not relate to
Alibaba's interaction with the SAIC and AICs by having the
redactions re-reviewed and by submitting to the Court affidavits
from Alibaba, as well as its U.S. and Chinese counsel. The Judge
is not persuaded that the burden of producing the redacted
documents is meaningfully greater than the burden of what was
offered by the Defendants' counsel.
For the foregoing reasons, Judge Aaron granted the portion of the
Plaintiffs' Letter-Motion regarding redactions. He ordered the
Defendants to produce unredacted versions of the previously
redacted documents no later than Nov. 12, 2018.
A full-text copy of the Court's Oct. 12, 2018 Opinion and Order is
available at https://is.gd/Wzzv1F from Leagle.com.
Tai William & Christine Asia Co. Ltd., Lead Plaintiffs, represented
by Kevin F. Ruf -- kruf@glancylaw.com -- Glancy Binkow & Goldberg
LLP, pro hac vice, Laurence Matthew Rosen -- lrosen@rosenlegal.com
-- The Rosen Law Firm, P.A., Lionel Z. Glancy --
lglancy@glancylaw.com -- Glancy & Binkow Goldberg LLP, pro hac
vice, Phillip C. Kim -- pkim@rosenlegal.com -- The Rosen Law Firm
P.A., Robert Vincent Prongay -- RProngay@glancylaw.com -- Glancy
Binkow & Goldberg LLP, pro hac vice, Jing Chen --
jchen@rosenlegal.com -- The Rosen Law Firm, P.A., Kara M. Wolke ,
Glancy Prongay & Murray LLP, Melissa Wright --
mwright@glancylaw.com -- Glancy Prongay & Murray LLP, Robert Kelsey
Kry , MoloLamken LLP & Steven Francis Molo -- smolo@mololamken.com
-- MoloLamken, LLP.
Christine Asia Co. Ltd., Plaintiff, represented by Laurence Matthew
Rosen, The Rosen Law Firm, P.A., Phillip C. Kim, The Rosen Law Firm
P.A., Alexa J. Mullarky, Glancy Prongay & Murray LLP & Kara M.
Wolke, Glancy Prongay & Murray LLP.
Tai William, Plaintiff, represented by Laurence Matthew Rosen, The
Rosen Law Firm, P.A., Lesley Frank Portnoy, Glancy Prongay & Murray
LLP, Robert Vincent Prongay, Glancy Binkow & Goldberg LLP, pro hac
vice, Alexa J. Mullarky, Glancy Prongay & Murray LLP & Kara M.
Wolke, Glancy Prongay & Murray LLP.
Manishkumar Khunt, individually and on behalf of all others
similarly situated, Plaintiff, represented by David Avi Rosenfeld,
Robbins Geller Rudman & Dowd LLP, Mary Katherine Blasy, Robbins
Geller Rudman & Dowd LLP & Samuel Howard Rudman, Robbins Geller
Rudman & Dowd LLP.
James Ziolkowski & Christine Ziolkowski, Plaintiffs, represented by
David R. Scott -- DAVID.SCOTT@SCOTT-SCOTT.COM -- Scott & Scott,
LLC, Donald A. Broggi -- DBROGGI@SCOTT-SCOTT.COM -- Scott + Scott,
L.L.P. & Joseph Peter Guglielmo -- JGUGLIELMO@SCOTT-SCOTT.COM --
Scott + Scott, L.L.P.
Richard Houlihan, Movant, represented by Joseph Peter Guglielmo,
Scott + Scott, L.L.P.
Yangmin Zhang & Yiwei Zhang, Movants, represented by Jennifer
Pafiti , Pomerantz LLP, pro hac vice & Jeremy Alan Lieberman --
jalieberman@pomlaw.com -- Pomerantz LLP.
Gang Liu, Movant, represented by Adam M. Apton , Levi & Korsinsky
LLP, Jing Chen, The Rosen Law Firm, P.A., Kara M. Wolke, Glancy
Prongay & Murray LLP, Robert Kelsey Kry, MoloLamken LLP, Steven
Francis Molo, MoloLamken, LLP & Laurence Matthew Rosen, The Rosen
Law Firm, P.A.
William Yun Cheong Wong & Elke Lai-Hing Lee, Movants, represented
by Samuel Howard Rudman, Robbins Geller Rudman & Dowd LLP &
Danielle Suzanne Myers, Robbins Geller Rudman & Dowd LLP, pro hac
vice.
BABA Investor Group, Movant, represented by Jason Allen Zweig,
Hagens Berman Sobol Shapiro LLP.
Jack Yun Ma, Joseph C. Tsai, Jonathan Zhaoxi Lu, Maggie Wei Wu &
Alibaba Group Holding Limited, Defendants, represented by George S.
Wang -- gwang@stblaw.com -- Simpson Thacher & Bartlett LLP, James
Glenn Kreissman -- jkreissman@stblaw.com -- Simpson Thacher &
Bartlett LLP, Jonathan K. Youngwood -- jyoungwood@stblaw.com --
Simpson Thacher & Bartlett LLP, Simona Gurevich Strauss --
sstrauss@stblaw.com -- Simpson Thacher & Bartlett LLP & Stephen
Patrick Blake -- sblake@stblaw.com -- Simpson Thacher & Bartlett
LLP.
Richard Houlihan, Interested Party, represented by John Jasnoch,
Scott+Scott, Attorneys At Law, LLP, pro hac vice.
BABA Investor Group, Interested Party, represented by Peter E.
Borkon, Hagens Berman Sobol Shapiro LLP & Reed R. Kathrein, Hagens
Berman Sobol Shapiro LLP.
ALLIANCEONE RECEIVABLES: Class Certification Sought in Voeks Suit
-----------------------------------------------------------------
Julie Voeks and Jeffery Merkovich move the Court to certify the
class described in the complaint of their lawsuit styled JULIE
VOEKS and JEFFERY MERKOVICH, Individually and on Behalf of All
Others Similarly Situated v. ALLIANCEONE RECEIVABLES MANAGEMENT
INC., Case No. 2:18-cv-01682-JPS (E.D. Wisc.), and further ask that
the Court both stay the motion for class certification and to grant
them (and the Defendant) relief from the Local Rules setting
automatic briefing schedules and requiring briefs and supporting
material to be filed with the Motion.
Dicta in the Supreme Court's decision in Campbell-Ewald Co. v.
Gomez, left open the possibility that a defendant facing a class
action complaint could moot a class representative's case by
depositing funds equal to or in excess of the maximum value of the
plaintiff's individual claim with the court and having the court
enter judgment in the plaintiff's favor prior to the filing of a
class certification motion, the Plaintiffs assert, citing
Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016).
To avoid the risk of a defendant mooting a putative class
representative's individual stake in the litigation, the Seventh
Circuit instructed plaintiffs to file a certification motion with
the complaint, along with a motion to stay briefing on the
certification motion. Damasco v. Clearwire Corp., 662 F.3d 891,
896 (7th Cir. 2011), overruled on other grounds, Chapman v. First
Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015) ("The pendency of
that motion [for class certification] protects a putative class
from attempts to buy off the named plaintiffs.").
While the Seventh Circuit has held that the specific procedure
described in Campbell-Ewald cannot force the individual settlement
of a class representative's claims, the same decision cautions that
other methods may prevent a plaintiff from representing a class,
the Plaintiffs tell the Court, citing Fulton Dental, LLC v. Bisco,
Inc., No. 16-3574, 2017 U.S. App. LEXIS 10839 *9-10 (7th Cir. June
20, 2017). The Plaintiffs assert that one defendant has attempted
a similar tactic by sending a certified check to the proposed class
representative. Bonin v. CBS Radio, Inc., No. 16-cv-674-CNC (E.D.
Wis.); see also Severns v. Eastern Account Systems of Connecticut,
Inc., Case No. 15-cv-1168, 2016 U.S. Dist. LEXIS 23164 (E.D. Wis.
Feb. 24, 2016).
The Plaintiffs are obligated to move for class certification to
protect the interests of the putative class, the Plaintiffs
contend.
As the Motion to certify a class is a placeholder motion as
described in Damasco, the parties and the Court should not be
burdened with unnecessary paperwork and the resulting expense when
short motion to certify and stay should suffice until an amended
motion is filed, the Plaintiffs argue.
The Plaintiffs also ask the Court to appoint them as class
representatives, and to appoint Ademi & O'Reilly, LLP, as class
counsel.[CC]
The Plaintiffs are represented by:
John D. Blythin, Esq.
Mark A. Eldridge, Esq.
Jesse Fruchter, Esq.
Ben J. Slatky, Esq.
ADEMI & O'REILLY, LLP
3620 East Layton Avenue
Cudahy, WI 53110
Telephone: (414) 482-8000
Facsimile: (414) 482-8001
E-mail: jblythin@ademilaw.com
meldridge@ademilaw.com
jfruchter@ademilaw.com
bslatky@ademilaw.com
ALNYLAM PHARMA: Vincent Wong Files Securities Class Action
----------------------------------------------------------
The Law Offices of Vincent Wong disclosed that a class action has
commenced on behalf of shareholders of Alnylam Pharmaceuticals,
Inc. If you suffered a loss you have until the lead plaintiff
deadline to request that the court appoint you as lead plaintiff.
Alnylam Pharmaceuticals, Inc. (NASDAQGS: ALNY)
Lead Plaintiff Deadline: November 26, 2018
Class Period: February 15, 2018 and September 12, 2018
Get additional information about ALNY:
http://www.wongesq.com/pslra-1/alnylam-pharmaceuticals-inc-loss-submission-form?wire=3
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]
ALPHABET INC: Vincent Wong Files Securities Class Action
--------------------------------------------------------
The Law Offices of Vincent Wong disclosed that a class action has
commenced on behalf of shareholders of Alphabet Inc. If you
suffered a loss you have until the lead plaintiff deadline to
request that the court appoint you as lead plaintiff.
Alphabet Inc. (NASDAQ: GOOG)
Lead Plaintiff Deadline: December 10, 2018
Class Period: April 24, 2018 and October 10, 2018
Get additional information about GOOG:
http://www.wongesq.com/pslra-1/alphabet-inc-loss-submission-form?wire=3
Vincent Wong, Esq.
39 East Broadway
Suite 304
New York, NY 10002
Telephone: 212.425.1140
Fax: 866.699.3880
Email: vw@wongesq.com [GN]
AMERICAN WATER: $40MM Accrued Liabilities in Chemical Spill Suit
----------------------------------------------------------------
American Water Works Company, Inc. said in its Form 10-Q Report
filed with the Securities and Exchange Commission on October 31,
2018, for the quarterly period ended September 30, 2018, that on
June 8, 2018, the U.S. District Court for the Southern District of
West Virginia granted final approval of a settlement class and
global class action settlement (the "Settlement") for all claims
and potential claims by all putative class members (collectively,
the "Plaintiffs") arising out of the January 2014 Freedom
Industries, Inc. chemical spill in West Virginia. The effective
date of the Settlement is July 16, 2018.
Under the terms and conditions of the Settlement, West
Virginia-American Water Company ("WVAWC") and certain other Company
affiliated entities (collectively, the "American Water Defendants")
have not admitted, and will not admit, any fault or liability for
any of the allegations made by the Plaintiffs in any of the actions
that were resolved. Under federal class action rules, claimants had
the right, until December 8, 2017, to elect to opt out of the final
Settlement.
Less than 100 of the 225,000 estimated putative class members opted
out from the Settlement, and these claimants will not receive any
benefit from or be bound by the terms of the Settlement.
In June 2018, the Company and its remaining non-participating
general liability insurance carrier settled for a payment to the
Company of $20 million, out of a maximum of $25 million in
potential coverage under the terms of the relevant policy, in
exchange for a full release by the American Water Defendants of all
claims against the insurance carrier related to the Freedom
Industries chemical spill.
As a result, the aggregate pre-tax amount to be contributed by
WVAWC of the $126 million Settlement with respect to the Company,
net of insurance recoveries, is $23 million. As of September 30,
2018, $40 million of the aggregate settlement amount of $126
million, reflecting payments made by the Company under the terms of
the Settlement, is reflected in Accrued Liabilities, and the
offsetting insurance receivables are reflected in Other Current
Assets on the Consolidated Balance Sheet. The Company has funded
WVAWC’s contributions to the Settlement through existing sources
of liquidity.
American Water Works Company, Inc., through its subsidiaries,
provides water and wastewater services in the United States and
Canada. It offers water and wastewater services to approximately
1,600 communities in 16 states. The company was founded in 1886 and
is based in Voorhees, New Jersey.
AMERICAN WATER: Court Issues Written Order Denying WVAWC Doctrine
-----------------------------------------------------------------
American Water Works Company, Inc. said in its Form 10-Q Report
filed with the Securities and Exchange Commission on October 31,
2018, for the quarterly period ended September 30, 2018, that the
court issued a written order denying West Virginia-American Water
Company's motion to apply the primary jurisdiction doctrine.
On the evening of June 23, 2015, a 36-inch pre-stressed concrete
transmission water main, installed in the early 1970s, failed. The
water main is part of West Virginia-American Water Company's
(WVAWC's) West Relay pumping station located in the City of Dunbar.
The failure of the main caused water outages and low pressure to up
to approximately 25,000 WVAWC customers. In the early morning hours
of June 25, 2015, crews completed a repair, but that same day, the
repair developed a leak. On June 26, 2015, a second repair was
completed and service was restored that day to approximately 80% of
the impacted customers, and to the remaining approximately 20% by
the next morning.
The second repair showed signs of leaking but the water main was
usable until June 29, 2015 to allow tanks to refill. The system was
reconfigured to maintain service to all but approximately 3,000
customers while a final repair was completed safely on June 30,
2015. Water service was fully restored by July 1, 2015 to all
customers affected by this event.
On June 2, 2017, a class action complaint was filed in West
Virginia Circuit Court in Kanawha County against WVAWC on behalf of
a purported class of residents and business owners who lost water
service or pressure as a result of the Dunbar main break. The
complaint alleges breach of contract by WVAWC for failure to supply
water, violation of West Virginia law regarding the sufficiency of
WVAWC's facilities and negligence by WVAWC in the design,
maintenance and operation of the water system.
The plaintiffs seek unspecified alleged damages on behalf of the
class for lost profits, annoyance and inconvenience, and loss of
use, as well as punitive damages for willful, reckless and wanton
behavior in not addressing the risk of pipe failure and a large
outage.
On October 12, 2017, WVAWC filed with the court a motion seeking to
dismiss all of the plaintiffs' counts alleging statutory and common
law tort claims. Furthermore, WVAWC asserted that the Public
Service Commission of West Virginia, and not the court, has primary
jurisdiction over allegations involving violations of the
applicable tariff, the public utility code and related rules.
On May 30, 2018, the court, at a hearing, denied WVAWC's motion to
apply the primary jurisdiction doctrine, and on October 11, 2018,
the court issued a written order to that effect. The court will
issue a written order on the motion to dismiss, and has set a trial
date of August 26, 2019.
American Water Works Company, Inc., through its subsidiaries,
provides water and wastewater services in the United States and
Canada. It offers water and wastewater services to approximately
1,600 communities in 16 states. The company was founded in 1886 and
is based in Voorhees, New Jersey.
ANALOGIC CORP: L. Buttny Named Lead Plaintiff in Securities Suit
----------------------------------------------------------------
In the case, JEANETTE A. CARR, individually and on behalf of all
others similarly situated, Plaintiffs, v. ANALOGIC CORPORATION et
al., Defendants, Civil Action No. 18-cv-11301-ADB, No.
18-cv-11557-ADB (D. Ma.), Judge Allison N. Burroughs of the U.S.
District Court for the District of Massachusetts granted Louis
Buttny's motion to be appointed the lead Plaintiff and for approval
of his selection of counsel.
Carr, Arthur J. Rosenthal, Rosa Family Trust ("Group"), and Mr.
Buttny, putative class members, have filed competing motions to be
appointed the lead Plaintiff and for approval of their selection of
lead counsel in the class action lawsuit filed pursuant to the
Private Securities Litigation Reform Act of 1995 ("PSLRA"). Mr.
Buttny and the Group have also both moved to consolidate the
following action with the instant case: Russ Burcaw v. Analogic
Corporation et al., No. 18-cv-11557-ADB (D. Mass. July 24, 2018).
Judge Burroughs finds that both actions concern the same claims
brought under the same sections of the Securities and Exchange Act
of 1934, and are based on substantially identical allegations
regarding the purportedly inadequate and misleading proxy statement
filed in connection with the merger between Analogic Corp. and
Altaris Capital Partners, LLC. Accordingly, these two actions
involve common questions of law or fact and will be consolidated.
The Judge also finds that both Mr. Buttny and the Group
acknowledged in their opening briefs that the candidate with the
most shares holds the largest financial interest in this type of
action. On the record date to vote on the Merger, Mr. Buttny held
1,250 shares. Ms. Carr held 200 shares, Mr. Rosenthal held 500
shares, and the Rosa Family Trust held 100 shares. Even assuming
that the Group was permitted to pool its members' interests, the
Group collectively holds only 800 shares. Accordingly, Mr. Buttny
owned the most shares of Analogic on the record date to vote on the
Merger and therefore has the largest financial interest.
Mr. Buttny also meets the typicality and adequacy requirements of
Federal Rule of Civil Procedure 23.
Because Mr. Buttny has the largest financial interest and satisfies
the relevant requirements under Rule 23, and the Group has failed
to rebut the presumption that he is the most adequate plaintiff,
Mr. Buttny will be named the lead Plaintiff and his selection of
lead counsel will be approved.
For the foregoing reasons, Judge Burroughs consolidated the case
and the related action, Russ Burcaw v. Analogic Corporation et al.,
No. 18-cv-11557-ADB (D. Mass. July 24, 2018). She granted Mr.
Buttny's motion to be appointed the lead Plaintiff and for approval
of his selection of counsel. The Judge denied Group's competing
motion. In light of the Order and the consolidation of the related
actions, the motions pending in the Burcaw case are denied as
moot.
A full-text copy of the Court's Oct. 10, 2018 Memorandum and Order
is available at https://is.gd/FnasdE from Leagle.com.
Mr. Russ Burcaw, Individually and on behalf of all others similarly
situated, Consolidated Plaintiff, represented by Danielle S. Myers
-- danim@rgrdlaw.com -- Robbins Geller Rudman and Dowd LLP, pro hac
vice, David T. Wissbroecker -- DWissbroecker@rgrdlaw.com -- Robbins
Geller Rudman & Dowd LLP, Eun Jin Lee -- elee@rgrdlaw.com --
Robbins Geller Rudman & Dowd LLP, pro hac vice, Jason M. Leviton --
jason@blockesq.com -- Block & Leviton LLP, pro hac vice & Robert B.
Carmel-Montes, The Carmel Law Group.
Jeanette A. Carr, Individually And On Behalf Of All Others
Similarly Situated, Plaintiff, represented by Jason M. Leviton,
Block & Leviton LLP.
Analogic Corporation, Defendant, represented by Antony S. Burt --
aburt@schiffhardin.com -- Schiff Hardin LLP, pro hac vice, Eric D.
Wolkoff -- ERIC.WOLKOFF@WILMERHALE.COM -- Wilmer Hale LLP, Jin Yan
-- jyan@schiffhardin.com -- Schiff Hardin LLP, pro hac vice, Molly
L. Wiltshire -- mwiltshire@schiffhardin.com -- Schiff Hardin LLP,
pro hac vice, Patrick P. Dinardo -- pdinardo@sandw.com -- Sullivan
& Worcester LLP & Nicholas M. O'Donnell -- nodonnell@sandw.com --
Sullivan & Worcester LLP.
Fred B Parks, Bernard C. Bailey, Jeffrey P. Black, James J. Judge,
Michael T. Modic, Stephen A. Odland & Joseph E. Whitters,
Defendants, represented by Daniel W. Halston --
DANIEL.HALSTON@WILMERHALE.COM -- Wilmer Hale LLP, Eric D. Wolkoff,
Wilmer Hale LLP & Yavor L. Nechev -- YAVOR.NECHEV@WILMERHALE.COM
-- Wilmer Cutler Pickering Hale and Dorr LLP.
Louis Buttny, Movant, represented by Robert B. Carmel-Montes, The
Carmel Law Group.
ASSET CAMPUS: 9th Cir. Affirmed Summary Judgment in Jang Suit
-------------------------------------------------------------
The U.S. Court of Appeals for the Ninth Circuit affirmed the
district court's summary judgment in the case, ANDY JANG, on behalf
of himself and others similarly situated, Plaintiff-Appellant, v.
ASSET CAMPUS HOUSING, INC.; et al., Defendants-Appellees, Case No.
17-55757 (9th Cir.)
Jang appeals from the district court's summary judgment in his
putative class action alleging that a fee charged when he paid his
rent using a credit card violated California Civil Code Section
174S8.1. He argues that the district court erred in determining
that section 1748.1, as applied in the case, violated the First
Amendment.
The Ninth Circuit finds that the issue is controlled by its
intervening decision in Italian Colors Restaurant v. Becerra, 878
F.3d 1165, 1179 (9th Cir. 2018), which held that section 1748.1, as
applied to those Plaintiffs, violated the First Amendment.
Contrary to Jang's contention, Italian Colors is not
distinguishable. Therefore it affirmed the district court's
summary judgment.
Because it affirmed the district court's summary judgment, the
Court does not reach Jang's arguments concerning the denial of
class certification.
A full-text copy of the Court's Oct. 12, 2018 Memorandum is
available at https://is.gd/xliYzX from Leagle.com.
BANK OF NEW YORK: Dismissal of Beverly with Prejudice Affirmed
--------------------------------------------------------------
In the case, PATRICIA BEVERLY, individually and on behalf of all
others similarly situated, Plaintiff-Appellant, v. THE BANK OF NEW
YORK MELLON, FKA The Bank of New York, a New York corporation, as
Trustee for the Certificate-holders of the The CWABS, Inc.
Asset-Backed Certificates, Series 2005-16; DITECH FINANCIAL LLC,
FKA Green Tree Servicing; DOES, 1-10, Defendants-Appellees, Case
No. 17-55557 (9th Cir.), the U.S. Court of Appeals for the Ninth
Circuit affirmed the district court's order dismissing Beverly's
claims with prejudice.
Beverly bought a house in 2005, executing a promissory note and a
deed of trust secured by the property. Her complaint alleges that
in 2011 the Note and Deed of Trust were purportedly transferred to
Defendant Bank of New York Mellon ("BONY") as trustee for a Real
Estate Mortgage Investment Conduit ("REMIC") trust. In 2014, she
further alleges, BONY purported to substitute MTC Financial, Inc.,
doing business as Trustee Corps, for itself as trustee under the
Deed of Trust. After Beverly defaulted, BONY instructed Trustee
Corps to initiate foreclosure proceedings, which resulted in the
November 2015 sale of her house (to BONY) at public auction.
In 2016, Beverly filed a putative class action, arguing that the
2011 transfer failed because it occurred years too late for the
Deed of Trust to meet the requirements to be a qualified mortgage,
and therefore its transfer into the the Middle District of Florida,
sitting by designation.
REMIC trust was precluded both by the terms of that trust's Pooling
and Servicing Agreement ("PSA") and by the Internal Revenue Code.
Because the transfer failed, her argument continues, BONY never had
authority to initiate the foreclosure proceedings. In the
alternative, she argues that the foreclosure was improper because
of various problems with foreclosure-related documents, such as
notary signatures and notices of default that (wrongly, in her
view) showed BONY as the beneficiary of the Deed of Trust. She
asserted one claim for wrongful foreclosure and another for
violation of California's Homeowner Bill of Rights ("HBOR").
BONY and its co-defendant, Ditech Financial LLC, formerly known as
Green Tree Servicing, filed a Rule 12(b)(6) motion, arguing that
Beverly's claims were barred by res judicata based on an earlier
unlawful detainer action and that she lacked standing to challenge
the 2011 transfer to BONY. The district court rejected the res
judicata argument but found that Beverly lacked standing and
therefore dismissed her claims with prejudice.
Beverly timely appealed.
The Ninth Circuit finds no error in the district court's resolution
of the res judicata issue. After the foreclosure but before the
filing of the action, BONY filed an unlawful detainer action
against Beverly. She stipulated to an entry of judgment in favor of
BONY on October 26, 2016. The district court found that res
judicata did not apply because the issues resolved in the unlawful
detainer action did not encompass Beverly's failed-transfer theory.
As an additional ground for affirmance on appeal, the Defendants
argue that res judicata should have applied. However, they have
made no showing that the failed-transfer issue was actually
addressed in the unlawful detainer action.
The Court also finds that the district court did not err in finding
that Beverly lacked standing to pursue her wrongful foreclosure
claim. Relying on Yvanova v. New Century Mortgage Corp. the
district court found that Beverly lacked standing because her
allegation that the transfer occurred too late to satisfy both the
requirements of the PSA and the Internal Revenue Code's definition
of a "qualified mortgage" would result at most in a transaction
that was voidable, rather than void. On appeal, Beverly has not
cited any case law suggesting that the district court misconstrued
New York law. Neither has Beverly, as the district court pointed
out, cited any case law showing that, as a matter of law, only
qualified mortgages may be transferred into a REMIC trust.
The district court also found that Beverly lacked standing to
challenge the foreclosure based on the alleged forgery of the
notary signature on the 2014 document substituting Trustee Corps as
trustee on the Deed of Trust, as that also would result, at most,
in a voidable transaction. Beverly offers nothing to challenge
this conclusion on appeal.
Finally, the Court finds that the district court did not specify
the basis for its dismissal of Beverly's HBOR claim. But, the gist
of Beverly's HBOR claim is that the Deed of Trust and Note were not
transferred into the REMIC trust. She cannot raise these alleged
problems with the foreclosure procedure -- or, more precisely, she
cannot establish that they caused her to suffer economic
damages-without first challenging the 2011 transfer of the Deed of
Trust and Note. Based on the reasoning of Yvanova, her lack of
standing to attack the transfer in connection with a wrongful
foreclosure claim is also fatal to her ability to attack that
transfer in connection with an HBOR claim. As such, the district
court did not err in dismissing the HBOR claim.
For all these reasons, the Ninth Circuit affirmed.
A full-text copy of the Court's Oct. 17, 2018 Memorandum is
available at https://is.gd/otYJbL from Leagle.com.
BANNER BANK: Court Certifies 3 Classes in Bolding FLSA Suit
-----------------------------------------------------------
In the case, KELLY BOLDING, et al., Plaintiff, v. BANNER BANK,
Defendants, Case No. C17-0601RSL (W.D. Wash.), Judge Robert S.
Lasnik of the U.S. District Court for the Western District of
Washington, Seattle, granted in part the Plaintiffs' motion for
class certification.
The Plaintiffs are current and former mortgage loan officers, real
estate commissioned loan officers, and/or residential lenders
("MLOs") employed by Defendant Banner Bank and other financial
institutions acquired by Banner Bank. The Plaintiffs allege that
MLOs are required to work and have worked "off the clock" without
compensation.
The Court conditionally certified a collective action under the
Fair Labor Standards Act ("FLSA") based on the Plaintiffs'
substantial allegations that putative class members were the
victims of a single decision, policy, or plan. The Plaintiffs now
seek to certify four subclasses under Fed. R. Civ. P. 23 to pursue
state law wage claims arising from the same alleged conduct.
The proposed subclasses are comprised of all MLOs employed by
Banner Bank or its various predecessors and affiliates during the
relevant limitations periods in (1) Washington, (2) Oregon, (3)
California, and (4) Idaho. The Plaintiffs also seek to compel
Banner Bank to provide a list of all putative class members.
Banner Bank opposes the requested relief.
Among other things, Judge Lasnik finds that the Plaintiffs offer no
evidence that the Idaho class exceeds 15 putative class members,
however. The Idaho limitations period does not reach back before
December 2014, and, despite having ten months in which to conduct
discovery before filing their class certification motion,
plaintiffs offer nothing but conjecture about how many MLOs Banner
Bank may have hired in Idaho since December 2017. Based on the
existing record, the Idaho class is too small to warrant class
certification. If the claims of Idaho MLOs are to be pursued in
the litigation, it must be through joinder.
The Judge also finds that to the extent the Plaintiffs seek to
represent MLOs who worked at Island Bank, Bank of Sacramento,
PremierWest Bank, or Siuslaw Bank, they have not provided any
evidence suggesting that the overtime policies in place in those
companies were the same as the ones about which they complain or
that MLOs in the predecessor banks suffered injuries similar to
theirs. There is no reason to believe that the named Plaintiffs
are any more capable of pursuing claims on behalf of MLOs from
Island Bank, Bank of Sacramento, PremierWest Bank, or Siuslaw Bank
than a stranger off the street would be: they have not offered any
reason to suppose that their experiences were in any way mirrored
in these predecessor banks. The Plaintiffs are not, therefore,
adequate representatives to the extent they seek to pursue claims
arising from the compensation policies of Island Bank, Bank of
Sacramento, PremierWest Bank, or Siuslaw Bank.
Judge Lasnik granted in part the Plaintiffs' motion for class
certification. He certified these classes pursuant to Fed. R. Civ.
P. 23(a) and 23(b)(3):
a. All current and former Mortgage Loan Officers, Real Estate
Commissioned Loan Officers, and/or Residential Lenders who were
employed by Banner Bank or its predecessor, AmericanWest Bank, in
Washington State at any time from April 17, 2014 to the present.
b. All current and former Mortgage Loan Officers, Real Estate
Commissioned Loan Officers, and/or Residential Lenders who were
employed by Banner Bank or its predecessor, AmericanWest Bank, in
Oregon at any time from April 17, 2011 to the present.
c. All current and former Mortgage Loan Officers, Real Estate
Commissioned Loan Officers, and/or Residential Lenders who were
employed by Banner Bank or its predecessor, AmericanWest Bank, in
California at any time from April 17, 2013 to the present.
The Judge appointed Kelly Bolding, Michael Manfredi, and Sarah Ward
as the representatives of the class, and the Plaintiffs' counsel as
the counsel for the class. Banner Bank shall, within 14 days of
the date of the Order, produce contact information in electronic
and importable format (including names, addresses, and email
addresses) for all class members.
The Clerk of Court is directed to seal Dkt. # 90. The Judge also
granted the Plaintiffs' motion for leave to supplement the record.
He overruled without prejudice the Defendants' objections to the
form of the evidence submitted on short notice.
A full-text copy of the Court's Oct. 10, 2018 Order is available at
https://is.gd/dCDGUX from Leagle.com.
Kelly Bolding, individually and on behalf of a class of all others
similarly situated & Michael Manfredi, individually and on behalf
of a class of all others similarly situated, Plaintiffs,
represented by Charlotte Sanders -- blf@blankenshiplawfirm.com --
BLANKENSHIP LAW FIRM PS, Richard E. Goldsworthy, THE BLANKENSHIP
LAW FIRM & Scott Crispin Greco Blankenship --
sblankenship@blankenshiplawfirm.com -- THE BLANKENSHIP LAW FIRM.
Sarah Ward, individually and on behalf of a class of all others
similarly situated, Plaintiff, represented by Scott Crispin Greco
Blankenship, THE BLANKENSHIP LAW FIRM.
Banner Bank, a Washington Corporation, Defendant, represented by
Kenneth E. Payson -- kenpayson@dwt.com -- DAVIS WRIGHT TREMAINE,
Laura-Lee S. Williams -- lauraleewilliams@dwt.com -- DAVIS WRIGHT
TREMAINE, Ryan Coby Hess -- ryanhess@dwt.com -- DAVIS WRIGHT
TREMAINE & Sheehan H. Sullivan Weiss -- sulls@dwt.com -- DAVIS
WRIGHT TREMAINE.
BITCONNECT: New Class Action Combines All Former Suits
------------------------------------------------------
Jimmy Aki, writing for Bitcoin Magazine, reports that according to
recent court documents, an Amended Consolidated Class Action
Complaint has been filed at a U.S. District Court for the Southern
District of Florida against BitConnect. The new suit combines all
the lawsuits previously filed against the now-defunct pyramid
scheme.
The new class action names the law firm Silver Miller as the "Class
Counsel" and BitConnect owners and promoters as defendants in the
suit. Silver Miller has become famous for its efforts in handling
cryptocurrency-related cases, representing aggrieved clients who
have lost funds to crypto businesses and going head-to-head against
companies such as Coinbase, Kraken, BitConnect and Tezos.
The consolidated lawsuit names BitConnect International PLC,
BitConnect Ltd., BitConnect Public Limited, BitConnect Trading
Ltd., individuals affiliated with the scheme including Senior
BitConnect India promoter Divyesh Darji. It also names YouTube as a
defendant, which was sued earlier this year, for allowing
BitConnect promoters and affiliates to publish "over 70,000 hours
of unedited content, generating 58,000,000 views," luring
"thousands, if not hundreds of thousands of victims" into
BitConnect's Ponzi scheme.
The new lawsuit cites over 22 legal violations including selling of
unregistered securities under controlling federal law, breach of
contract, fraudulent inducement and more. The suit also provides a
complete overview of BitConnect and the allegations leveled against
it.
The consolidated suit reads in part:
"This is a class action on behalf of a class of investors
consisting of all individuals and entities who transferred to
BITCONNECT any fiat currency or cryptocurrency to invest in BCC
and/or the BitConnect Investment Programs(Defined Below) and who
suffered financial injury as a result thereof."
BitConnect's history was short and fraught with controversies and
drama. The company, which was suspected of running a ponzi scam,
solicited funds from investors who lent money to the business in
exchange for a 40 percent return per month and 1 percent per day,
regardless of the conditions in the market.
Investors who wanted to be a part of the scheme had to convert
their fiat or bitcoin into the platform's native token, the BCC.
As investor demand in the token grew, so did the value of the
digital asset, reaching an all-time high price of $430 with a
market cap of over $2.6 billion. When the company announced it was
shutting down its lending scheme, the value of the asset was wiped
out. Crypto exchanges also delisted the coin, leaving investors
with losses.
The company shut down operations on January 17, 2018, citing bad
press as well as two cease-and-desist orders from state securities
regulators in Texas and North Carolina which claimed the company
was selling unregistered securities and Distributed Denial of
Service (DDoS) attacks which, it claims, shook investor confidence
in their program.[GN]
CALIFORNIA: Court Denies Bid to Dismiss Minors' ADA Suit
--------------------------------------------------------
In the case, I.N., a minor, by and through her mother and Guardian
ad Litem, Zarinah F., and J.B., a minor, by and through his mother
and Guardian ad Litem, Alisa B., Plaintiffs, v. JENNIFER KENT,
Director of the Department of Health Care Services, and State of
California DEPARTMENT OF HEALTH CARE SERVICES, Defendants, Case No.
C 18-03099 WHA (N.D. Cal.), Judge William Alsup of the U.S.
District Court for the Northern District of California denied the
Defendants move to dismiss the amended complaint for lack of
subject-matter jurisdiction.
Suing through their parents, Plaintiffs I.N. and J.B. -- who are
seven and five years old, respectively -- have significant physical
disabilities. The Plaintiffs receive benefits under Medi-Cal,
California's Medicaid Act program. Defendants California
Department of Health Care Services and DHCS Director Jennifer Kent,
who operate Medi-Cal, authorized the Plaintiffs' receipt of in-home
nursing services. According to the complaint, the Plaintiffs risk
health crises and placement in an institutional setting absent
in-home nursing .
I.N. has resided with her adoptive family since infancy. Her
father worked as a firefighter and her mother was the primary
caregiver for I.N. and four other children. She has required total
assistance for all activities of daily living. The Defendants
authorized I.N. to receive 56 hours of in-home nursing services per
week. Nevertheless, I.N. has received fewer hours of services than
authorized. Missed nursing shifts occurred for a variety of
reasons, including illness, vacation, nurses being assigned to
multiple cases, or because I.N.'s parents could not find additional
nurses who would accept her as a patient. Over the past year and a
half, I.N. has experienced a shortfall of approximately 10% of her
authorized hours .
J.B.'s mother was an Engineer Corps Officer in the Navy before J.B.
was born but has since stayed home to care for J.B. His father
worked as a project manager/engineer with the Army Corps of
Engineers. J.B. has also required assistance with all activities
of daily living. The Defendants authorized him to receive 135
hours of in-home nursing per week and two hours of monthly RN case
management. J.B. has nonetheless experienced a 50% shortfall in
such hours for most of his life. Like I.N., J.B.'s parents have
been unable to find nurses to staff all of J.B.'s authorized
hours.
The Defendants knew that the Plaintiffs were not receiving their
authorized amounts of medically-necessary in-home nursing yet
failed to arrange for such services or assist their families in
seeking such services. Rather, they merely provided families with
outdated referral lists of home health agencies and independent
nurse providers. These lists often included providers outside of
the relevant geographic area and some who did not even accept
Medi-Cal.
The Plaintiffs initiated the action in May 2018. An order granted
the Olaintiffs' application to appoint their mothers as their
gardian ad litem. The Plaintiffs filed an amended complaint in
August 2018, asserting claims for: (1) violation of the Medicaid
Act's EPSDT provisions; (2) violation of the Medicaid Act's
reasonable promptness requirement; (3) violation of the Americans
with Disabilities Act; and (4) violation of Section 504 of the
Rehabilitation Act.
The Defendants now move to dismiss the amended complaint for lack
of subject-matter jurisdiction. They argue that the complaint
fails to allege facts plausibly suggesting that the Plaintiffs'
injuries are fairly traceable to the Defendants or that the
Plaintiffs' injuries would be redressed by a favorable ruling.
As alleged in the complaint, Judge Alsup finds that there are
qualified in-home shift nursing care providers in the Plaintiffs'
geographic areas but the Defendants steer the Plaintiffs away from
resources actually available via outdated lists of providers. Even
if a state delegates the responsibility to provide treatment to
other entities such as local agencies or managed care
organizations, the ultimate responsibility to ensure treatment
remains with the state. The Plaintiffs' allegations therefore
satisfy the causation prong.
In addition, based on the allegations in the amended complaint, it
is plausible that the Defendants have not done all that the statute
requires such that the Plaintiffs have been denied complete
benefits. Discovery into how the Defendants manage the program may
reveal that the fault lies with the bureaucracy and is curable
rather than simply being a shortage of nurses in California. At
this stage, it is too early to toss the case out.
For the reasons explained, Judge Alsuo denied the Dfendants' motion
to dismiss for lack of subject-matter jurisdiction. The Counsel
are well-advised to take discovery and to adhere to the case
management schedule. Extensions will rarely be granted.
A full-text copy of the Court's Oct. 10, 2018 Order is available at
https://is.gd/bsDTuL from Leagle.com.
I. N., a minor, by and through her mother and Guardian ad Litem,
Zarinah F. & J. B., a minor, by and through his mother and Guardian
ad Litem, Alisa B., Plaintiffs, represented by William Jordan
Leiner -- william.leiner@disabilityrightsca.org -- Disability
Rights California, Allen L. Lanstra, Skadden Arps Slate Meagher and
Flom LLP, Angelica Mae Bustamante-Galang, Disability Rights
California, Elissa Staci Gershon, Disability Rights California,
Maria Fernanda Iriarte -- maria.iriarte@disabilityrightsca.org --
Disability Rights California, Maria del Pilar Gonzalez Morales --
pilar.gonzalez@disabilityrightsca.org -- Disability Rights
California, Martha Jane Perkins, National Health Law Program,
Rachael Tara Schiffman, SKADDEN, ARPS, SLATE, MEAGHER, FLOM LLP,
Rau Mona Tawatao, Western Center On Law And Poverty, Rebecca Y.
Yang, Disability Rights California, Richard Adam Schwartz, Skadden,
Arps, Slate, Meagher & Flom LLP, Robert Dexter Newman, Jr., Western
Center on Law & Poverty, Salma E. Enan --
salma.enan@disabilityrightsca.org -- Disability Rights California &
Sarah Jane Somers, National Health Law Program, Inc.
Jennifer Kent, Director of the Department of Health Care Services &
State of California Department of Health Care Services, Defendants,
represented by Carolyn Ortler Tsai, Attorney General of State of
California, Hamsa M. Murthy, Office of the Attorney General of
California, Maryam Toossi Berona, California Department of Justice
Office of the Attorney General, Samona Leigh Anne Taylor,
Department of Justice Office of the Attorney General & Susan M.
Carson, Deputy Attorney General.
CAMDEN COUNTY, GA: $12MM Agnone Suit Deal Prelim Approval Endorsed
------------------------------------------------------------------
In the case, STEPHEN AGNONE & ENZO AGNONE; DOUGLAS & CYNTHIA
PORCELLI; BRIDGE POINTE AT JEKYLL SOUND COMMUNITY ASSOCIATION,
INC., et al., Plaintiffs, v. CAMDEN COUNTY, GEORGIA; WILLIS R.
KEENE, JR.; JIMMY STARLINE; CHUCK CLARK; TONY SHEPPARD; GARY
BLOUNT; DAVID L. RAINER; KATHERINE NISI ZELL; CHARLENE SEARS;
STEPHEN L. BERRY; STEPHEN L. HOWARD; O. BRENT GREEN; JOHN McDILL;
DAVID KEATING; SCOTT BRAZELL; LEXON INSURANCE COMPANY; THOMAS A.
DIERUF; DAVID E. CAMPBELL; JEKYLL SOUND DEVELOPMENT COMPANY, LLC;
and CAMDEN COUNTY DEVELOPMENT, LLC, Defendants, Civil Action No.
2:14-cv-00024-LGW-BKE (S.D. Ga.), Magistrate Judge Brian K. Epps of
the U.S. District Court for the Southern District of Georgia,
Brunswick Division, recommended that the Plaintiffs' Motion for
Preliminary Approval of Class Settlement and Certification of
Settlement Class and three supplements thereto, be granted on the
modified terms and conditions.
The parties have agreed to a settlement, the terms and conditions
of which are set forth in an executed Settlement Agreement. Under
the Settlement, if approved, the Settlement Class will receive a
total of $11.75 million (i) to construct infrastructure
improvements in Phase I in the Bridge Pointe at Jekyll Sound
Subdivision; (ii) to pay their attorneys' fees approved by the
Court; and (iii) to pay to the Class Representatives service fees
not to exceed $5,000 each for their service as such.
Pursuant to the terms and conditions of the Agreement, Lexon has
paid on behalf of Camden County: (i) $3.75 million into the
Registry of the Court to be held pending final approval of the
Settlement in this Action and disbursed in accordance with the
Agreement, and $250,000 to Bridge Pointe at Jekyll Sound Community
Association, Inc. to pay a portion of the Association's attorneys'
fees related to the litigation. The Lexon Defendants will also pay
all costs of notice to the Settlement Class. The Settlement will
collectively benefit the Class Members by providing funds to
construct infrastructure improvements in the Subdivision. A
description of how and when the Settlement Proceeds will be paid
and disbursed, if the Settlement is finally approved, is included
in the Agreement.
The Agreement has been filed with the Court, and the Class
Representatives and the Class Counsel have filed a Motion for
Preliminary Approval of Class Settlement and for Certification of
the Settlement Class as supplemented and revised, and the Joint
Statement of Class Counsel, in support of the Motion.
On Oct. 2, 2018, the Court recommended granting the Plaintiffs'
Motion for Preliminary Approval of Class Settlement and
Certification of Settlement Class and three supplements thereto.
The Court, therefore, preliminarily certified the Settlement Class
defined as all persons or entities who hold legal or equitable
title as of the date of preliminary approval of the Class Action
Settlement to any Unit or Parcel in the Bridge Pointe at Jekyll
Sound Subdivision and any transferees of any Unit or Parcel
following preliminary approval of the Class Action Settlement
(together the Lot Owners).
On Oct. 9, 2018, the Plaintiffs filed their Request for
Modification of Report and Recommendation. On Oct. 10, 2018, the
Defendants filed a Notice of Consent stating they have no objection
to either the October 2nd Report and Recommendation or the
modifications proposed by the Plaintiffs. On the same date, the
Court conducted a phone conference to propose one additional
modification to the Report and Recommendation. All parties
consented to the modification.
Accordingly, Magistrate Judge Epps reported and recommended that
the Plaintiffs' Motion for Preliminary Approval of Class Settlement
and Certification of Settlement Class and three supplements
thereto, be granted on the modified terms and conditions set
forth.
Two changes to the Notice are necessary for the sake of clarity and
completeness:
(a) The following sentence will be added as the second
sentence to Section 11, How will the lawyers be paid?: The
attorneys' fee award of not more than $400,000 to be sought from
the Court is in addition to $792,607.52 in attorneys' fees
previously paid to Class Counsel as referenced in Section 7 above
and the fee request filed by Class Counsel.
(b) The following sentence will be added as the final sentence
to Section 7, What does the Settlement provide?: For more
information regarding infrastructure costs, please see the W.H.
Gross Estimate dated September 24, ', a copy of which is available
at www.noticeclass.com/BridgePointeSettlement.
The Magistrate Judge recommended that Stephen Tilghman (Tilghman &
Co., P.C., Post Office Box 11250, Birmingham, Alabama 35202) be
appointed to act as the Settlement Administrator. Within the time
frames describe, the Settlement Administrator will send Notice by
United States Mail or email to all of the Settlement Class Members.
The Notice Program will commence on Oct. 15, 2018 and will be
completed by Nov. 5, 2018.
On Nov. 12, 2018, the Settlement Administrator will provide the
Class Counsel and the counsel for the Lexon Defendants an affidavit
or declaration that confirms the Notice Program was completed in a
timely manner. The Class Counsel will file such affidavit or
declaration with the Court in conjunction with Class
Representatives' Motion for Final Approval of the Settlement.
All fees and costs associated with the Notice Program will be paid
by the Lexon Defendants, as set forth in the Settlement.
The Settlement Administrator will establish a Settlement Website as
a means for Settlement Class Members to obtain notice of, and
information about, the Settlement. The Settlement Website will be
established by Oct. 15, 2018. The Settlement Website will include
links to the Settlement, the Notice, the Order, and such other
documents as the Settlement Class Counsel and the counsel for the
Lexon Defendants agree to post or that the Court orders posted on
the Settlement Website. These documents will remain on the
Settlement Website at least until final approval.
The Settlement Administrator will provide a help line for
Settlement Class Members to call with Settlement-related inquiries,
and will answer the questions of Settlement Class Members who call
with or otherwise communicate such inquiries.
The Magistrate Judge also recommended a Final Fairness Hearing.
Any member of the Settlement Class may object to the Settlement,
the Class Counsel's Fee Application and/or the request for service
fees for tge Class Representatives no later than Jan. 22, 2018, to
the Clerk of Court, the Settlement Class Counsel, and the counsel
for the Lexon Defendants, at the addresses provided below:
COURT CLASS COUNSEL DEFENSE COUNSEL Clerk of Court Robert G.
Aitkens W. Joseph McCorkle, Jr. United States District Court
Aitkens & Aitkens, P.C. Balch & Bingham LLP Brunswick Courthouse
1827 Powers Ferry Road P.O. Box 78 P.O. Box 1636 Building One,
Suite 100 Montgomery, Alabama 36101 Brunswick, GA 31521 Atlanta, GA
30339 Geremy W. Gregory John T. Sparks, Sr. Balch & Bingham LLP
Austin & Sparks, P.C. 841 Prudential Drive 2974 Lookout Place, N.E.
Suite 1400 Suite 200 Jacksonville, FL 32207 Atlanta, GA 30305
The Class Representatives and tge Class Counsel will file their
Motion for Final Approval of the Settlement no later than Feb. 1,
2019. The Class Representatives and the Class Counsel will file
their Request for Fee Application, and Request for Service Fees for
Class Representatives no later than Oct. 8, 2018. The Request for
Fee Application will identify an amount of attorneys' fees and
advanced expenses for each Law Firm and an aggregated amount of
requested fees and advanced expenses. The Fee Application of each
law firm will be amended no later than Feb. 1, 2019, to include the
amount of attorney's fees and advanced expenses provided since the
initial Request for Fee Application.
The Class Representatives and the Class Counsel will file their
responses to timely filed objections to the Motion for Final
Approval of the Settlement, Amended Request for Fee Application,
and Request for Service Fees for Class Representatives no later
than Feb. 1, 2019. If any of the Lexon Defendants chooses to file
a response to timely filed objections to the Motion for Final
Approval of the Settlement, he or it also must do so no later than
Feb. 1, 2019.
All proceedings in the Action are hereby stayed until further order
of the Court, except as may be necessary to implement the terms of
the Settlement.
Based on the foregoing, Magistrate Judge Epps recommended the
following schedule for the Final Fairness Hearing and the actions
which must precede it:
(a) Class Representatives and Class Counsel will file their
Request for Fee Application, and Request for Service Fees for Class
Representatives no later than Oct. 8, 2018.
(b) The Settlement Administrator will establish the Settlement
Website and help line as soon as practicable following Preliminary
Approval, but no later than Oct. 15, 2018;
(c) The Settlement Administrator will begin the Notice Program
no later than Oct. 15, 2018 and complete the Notice Program no
later than Nov. 5, 2018;
(d) The Settlement Class Members must file any objections to
the Settlement no later than Jan. 22, 2019;
(e) The Class Representatives and the Class Counsel will file
their responses to timely filed objections to Settlement no later
than Feb. 1, 2019;
(f) If any of the Lexon Defendants chooses to file a response
to timely filed objections to Settlement, he or it will do so no
later than Feb. 1, 2019;
(g) The Class Representatives and the Class Counsel will file
their Motion for Final Approval of the Settlement, Amended Request
for Fee Application, and Request for Service Fees for Class
Representatives no later than Feb. 1, 2019;
(h) The Fee Application of each law firm will be amended no
later than Feb. 1, 2019, to include the amount of attorneys' fees
and advanced expenses provided since the initial Request for Fee
Application; and
(i) The Final Fairness Hearing will be held on Feb. 20, 2019,
at 9:00 a.m. in Courtroom 1 of the Brunswick Courthouse, 801
Gloucester Street, Brunswick, GA 31520.
A full-text copy of the Court's Oct. 10, 2018 Amended Report &
Recommendation is available at https://is.gd/uRrD8V from
Leagle.com.
Stephen Agnone, Enzo Agnone, Douglas Porcelli, doing business as
ADVANTA IRA Properties, Cynthia Porcelli, Bridge Pointe at Jekyll
Sound Community Association, Inc., Jitendra Hirani, Carlos E.
Calvo, Monica B. Nunez De Calvo, Yogesh Patel, Ananta Patel, Ralph
H. Petrella, Tomi J. Petrella, Jamie Barnard, Mark Zurawel, Francis
G. O'Such, Valerie D. O'Such, Millicent Harwell-Cross, Totally
Free, Inc., Brian A. Donovan, Steven Sanders, William D. Turner,
Cheryle W. Turner, Rick A. Nutcher, Robert J. Bisnett, Carol Ann
Bisnett, Richard W. Garrison, Beryl K. Garrison, Michael B.
Randall, Alex S. Paulson, Robert W. Wilhelm, Roxanne M. Wilhelm,
Michael Danyus, MELS LLC/NUVIEW IRA, Victor Hernandez, Maria Vega,
Greg E. Murphy, Debra E. Murphy, Laura Donovan, Daniel D. Veal,
Elizabeth B. Veal, John P. Glish, Barbara K. Glish, Marilyn
Militscher, Cassandra R. Bowen, Joshua S. Bowen, John Murphey,
Laura Murphey, Jeanne Steinebrunner, The Steinebrunner Family
Trust, Bernd Steinebrunner, The Steinebrunner Family Trust, Lidia
Penalver, Dennis H. Thomas, Peggy E. Thomas, Michael A. Scott,
Equity Trust Company Custodian, FBO, Peter J. Veit-IRA, Vincent
Salierno, Deborah Salierno, BPJSCA, Inc., David Lewis, Sage Brook,
LLC, James C. Heller, Kathleen A. Heller, Dale Ellis, James Conrad
Bishop, Raymond Prescottano, Len A. Carter, BCCS Investments, LLP,
Clifford W. O'Neill, Pamela A. O'Neill, David Bishop, Eva Bishop,
Edward Wojciechowski, Ann Marie Wojciechowski, James M. Corcoran,
Dennis Vaccaro, Janet Vaccaro, Warren Mueger, Eve Mueger, Daniel K.
Harshman, Henry Huey, Huey Tran Trust, Palm Tree Partners, Curt L.
Riggen, Robert Bock, Diane Bock, Fiserv & Co., FBO, Robert A.
Jensen, IRA, Michael Wagner, David L. Emerson, Cynthia Joanne
Emerson, John Kazmerski, John H. Cherry, III, Phyllis A. Cherry,
Rosanna D. Clark, NUVIEW IRA, Danyus/Cavaliere, Louis Karvonidis,
Andy Rosolinski, Kate Zaluski, Robert L. English, Jr., Nancy T.
English, Timothy J. Walkley, Susan M. Walkley, Marla Scherker,
Marcia Rudderman, Doug Metcalfe, Karen Metcalfe, Dean Befumo,
Jeffrey Wienand, Sr., Edward J. Kulik, Pamela M. Kulik, Barbara
Zolli, Lawrence O'Hern, Jr., Jeff Thomas, E. Kipp Echols, Allen W.
Barley, Dorinda J. Barley, Robert Carpentier, Donna Carpentier,
Nicholas Franco, John A. King, JATN FLP, Erminio Torello, Rita
Torello, Jack Lupas, Bomber Investment, Peter Cavaliere, Frederick
W. Heidtman, Adrienne Heidtman, Dallen Atack, Kimber Atack, Andrew
J. Seeley, Sean P. Seeley, Alfonso DeRosa, III, George S. Merlo,
Georgianne Merlo, Thomas Trainor, Kristen N. Befumo, John T.
Bollinger, Jr., Patricia Nunez, Joseph N. Murdock, Margie A.
Murdock, William Moorhead, Carol Moorhead, Heidi Ruff, The Ruff
Trust, Douglas Windsor, Joanne Windsor, Walter W. Hoff, Jeanette S.
Ray, Robert Hileman, Cindy Hileman, Joseph E. Flynn, Jean Flynn,
Catherine Cruz, Richard E. Mumford, Sally Mumford, Allen M. Seeley,
Joan M. Seeley, Joseph Shanahan, Susan Shanahan, James Pace,
Jacqueline Pace, Eric Lee, Lee Trust, Lai-Fong Lee, Lee Trust,
Nicole Lam, Michael B. Sullivan, Pamela Manos Petkas, Arif Suwandi,
Jennifer Jung, Andrew Michael Petkas, Neil Arthur Kain, III, Kathy
Penn, Hugh Penn, Kevin Vogt, Emily Vogt, Philip C. Krebs, Aylin M.
Kerbs, Sena Properties, LLC, Sarita Hirani, Trustee, Ching-Kang
Chen, Yu-Jiun Chen, David L. Russell, Harriet T. Russell, Michael
O'Connell, Carol O'Connell, Neil Patel, Kenneth Kringle, Iva
Kringle, David Preston Bush, B. David Richardson, Richardson/Wright
Properties LLC, Bradley S. Shepherd, Joseph B. Manderson, John L.
Aitkens, Jr., Aitkens Realty Co. II, LLC, Richard M. Taylor, Mark
W. Carson, D. B. Richardson, Jr., Moody Williams, Freedom Property
Group II, LLC, Deborah Villm, Villm and Associates, Paul B. Roy,
Tammy R. Roy, Joseph P. Chanely, Marilyn A. Chanley, Dana K. Huie,
Jeanette E. Huie, Nancy A. Hodge, Aitkens Realty Co., LLC, David L.
Carlberg & Jean M. Carlberg, Plaintiffs, represented by Robert G.
Aitkens, Aitkens & Aitkens, PC, Teresa T. Aitkens, Aitkens &
Aitkens, PC, pro hac vice, John B. Austin, Austin & Sparks, PC &
John Thomas Sparks, Austin & Sparks, PC.
Joseph Moronese, Jr., Plaintiff, represented by Robert G. Aitkens,
Aitkens & Aitkens, PC & John Thomas Sparks, Austin & Sparks, PC.
Camden County, Georgia, Willis R. Keene, Jr., Jimmy Starline, Chuck
Clark, Tony Sheppard, Gary Blount, David L. Rainer, Katherine Nisi
Zell, Charlene Sears, Stephen L. Berry, Stephen L. Howard, O. Brent
Green, John McDill, David Keating & Scott Brazell, Defendants,
represented by G. Todd Carter -- tcarter@brbcsw.com -- Brown,
Readdick, Bumgartner, Carter, Strickland & Watkins, LLP & Garret W.
Meader -- gmeader@deflaw.com -- Drew, Eckl & Farnham, LLP.
Jekyll Sound Development Company, LLC, Thomas A. Dieruf, Camden
County Development, LLC, Lexon Insurance Company & David E.
Campbell, Defendants, represented by Geremy W. Gregory --
ggregory@balch.com -- Balch & Bingham, LLP, Hugh B. McNatt --
hmcnatt@balch.com -- Balch & Bingham & W. Joseph McCorkle, Jr. --
jmccorkle@balch.com -- Balch & Bingham, LLP, pro hac vice.
CAMPBELL SOUP: Levi & Korsinsky Files Class Actions
---------------------------------------------------
Levi & Korsinsky, LLP disclosed that a class action lawsuit has
commenced on behalf of shareholders of Campbell Soup Company.
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.
Campbell Soup Company (NYSE: CPB)
Class Period: August 31, 2017 - May 17, 2018
Lead Plaintiff Deadline: November 27, 2018
Join the action:
https://www.zlk.com/pslra-1/campbell-soup-company-loss-form?wire=3
About the lawsuit: Campbell Soup Company allegedly made materially
false and/or misleading statements and/or failed to disclose that:
(1) the defendants failed to disclose known trends that were
negatively impacting the profitability of the Campbell Fresh
division; and (2) as a result of the foregoing, the defendants'
positive statements about Campbell's and the Campbell Fresh
division's business, operations, and prospects were materially
false and/or misleading and/or lacked a reasonable basis.
To learn more about the Campbell Soup Company 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]
CAPITAL TITLE: Moore Suit Dismissal with Prejudice Reversed
-----------------------------------------------------------
In the case, MARJORIE MOORE, on behalf of herself and others
similarly situated, Plaintiff-Appellant, v. DAVID FISCHER, d/b/a
CAPITOL TITLE LOANS, Defendant-Respondent, Case No. A-4402-16T4
(N.J. Super. App. Div.), the Superior Court of New Jersey for the
Appellate Division reversed the May 12, 2017 Law Division order
dismissing with prejudice Moore's complaint against the Defendant
for failure to state a claim upon which relief may be granted.
In her pleading, the Plaintiff alleged that she saw an
advertisement for the Defendant's title loan company while perusing
the internet on her computer at her home in Hillsborough, New
Jersey. According to her, the Defendant's business provides small
consumer loans called title loans with interest of approximately
180% APR (Annual Percentage Rate). The Defendant secures its title
loans with the borrower's motor vehicles, taking possession of
their certificates of title, filing liens with the motor vehicle
agency where the borrower lives, and repossessing their vehicles in
the event of default.
While the Defendant maintains its four brick and mortar offices
exclusively in Delaware, the Plaintiff claimed that the Defendant
markets its title loans to residents of bordering states, including
New Jersey, and secures loans with motor vehicles located and
registered in New Jersey. On Dec. 22, 2013, the Plaintiff drove to
New Castle, and entered into a title loan contract with the
Defendant. Under the terms of the contact, the Plaintiff received
$3,000; was charged interest at an annual percentage rate of
180.34%, totaling $457.50; and was required to pay back $3542.50
one month later on Jan. 22, 2014.
The Plaintiff secured the loan using her 2007 Toyota Camry as
collateral, granting the Defendant a security interest in the
vehicle. The contract added to the loan balance an $85 fee for the
Defendant to file a lien on the Plaintiff's Toyota with the New
Jersey Motor Vehicle Commission. In the event of a dispute, the
contract set forth the following choice-of-law provision, the
Agreement will be construed, applied and governed by the internal
laws of the state in which it is executed.
After making two payments totaling $945, the Plaintiff defaulted on
the loan. On Jan. 20, 2015, the Defendant repossessed the
Plaintiff's car in New Jersey. The next day, the Defendant mailed
the Plaintiff a repossession notice stating that her Toyota would
be sold at auction or by private sale on Feb. 9, 2015, or any time
thereafter. The notice included a list of charges the Plaintiff
owed in order to redeem her vehicle prior to sale. Specifically,
$3,085 was listed as the principal balance due, plus interest
totaling $5048.25, repossession fees in the amount of $575, and a
daily storage fee of $25.
Following the Court's remand, the Plaintiff filed a four-count
amended class action complaint in the Law Division, seeking
certification of a class of New Jersey consumers who entered into
similar title loan contracts with the Defendant. She alleged that
the Defendant violated: (1) the New Jersey Consumer Fraud by
charging interest rates over 30% contrary to the limitations set
forth in the New Jersey's criminal usury statute (count one); (2)
the New Jersey Truth in Consumer Contract, Warranty, and Notice Act
by charging consumers more than 30% interest on the loans (count
two), and by sending deficient repossession notices to her and
other members of the putative class (count four); and (3) Article
9, Part 6 of the Uniform Commercial by, among other things, failing
to include required information in its repossession notices (count
three).
In lieu of filing an answer, the Defendant filed a motion to
dismiss the amended complaint for failure to state a claim under
Rule 4:6-2(e). The Defendant alleged that the title loan contract
specifically stated that Delaware law was to be applied in the
event of a dispute, yet the Plaintiff's legal claims were based
solely on New Jersey law. In response, the Plaintiff filed a
cross-motion to file a second amended complaint.
Having concluded that neither of the two exceptions set forth in
the Instructional Systems test applied, the judge granted the
Defendant's motion to dismiss the Plaintiff's complaint. The
judge's order stated that the dismissal was with prejudice, even
though the judge did not specifically address that issue in her
brief oral ruling. The judge also denied the Plaintiff's
cross-motion to amend her complaint, but merely stated that she was
doing so because the motion was "moot." The appeal followed.
On appeal, the Plaintiff argues that the motion judge erred by
dismissing her complaint with prejudice and denying her motion to
file a second amended complaint.
The Superior Court agrees. it finds that the judge mistakenly
neglected to convert the Defendant's motion to dismiss to a motion
for summary judgment as required by Rule 4:6-2 and consider the
additional factual assertions the Plaintiff made in the
certification she submitted in support of her motion to file a
second amended complaint. Based solely on the underdeveloped
factual underpinnings set forth in the Plaintiff's March 3, 2017
first amended complaint, it does appear that the Defendant had only
slight contacts with New Jersey in terms of giving this state
jurisdiction to consider this dispute in the absence of the
choice-of-law provision in the title loan contract.
Teh Court therefore reversed the trial court's May 12, 2017 order
and remanded to allow the Plaintiff to file an amended complaint.
After that, if the Defendant believes that the facts alleged by the
Plaintiff are insufficient to warrant an exception from the
choice-of-law rule established in Instructional Systems, it may
file the appropriate application anew before the trial court. The
Court expects that any decision by the court will contain detailed
findings of fact, conclusions of law, and citations to the
governing legal precedents on the choice-of-law question.
A full-text copy of the Court's Oct. 9, 2018 Order is available at
https://is.gd/CWUJEa from Leagle.com.
Henry P. Wolfe -- hwolfe@wolflawfirm.net -- argued the cause for
appellant (The Wolf Law Firm, LLC, attorneys; Henry P. Wolfe and
Andrew R. Wolf -- awolf@wolflawfirm.net -- on the briefs).
Randi A. Wolf -- rwolf@lawsgr.com -- argued the cause for
respondent (Spector Gadon & Rosen, PC, attorneys; Randi A. Wolf, on
the brief).
CARLYLE GROUP: Approval of Settlement in Cobalt Case Sought
-----------------------------------------------------------
The Carlyle Group L.P. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 31, 2018, for the
quarterly period ended September 30, 2018, that lead plaintiffs in
the case entitled, In re Cobalt International Energy, Inc.
Securities Litigation, moved the district court for approval of a
settlement with various parties, including the Partnership
Cobalt International Energy, Inc. ("Cobalt") was a company owned by
two of the Legacy Energy funds and funds advised by certain other
private equity sponsors. Cobalt and certain of its affiliates
filed for bankruptcy protection on December 14, 2017.
A federal securities class action against Cobalt (In re Cobalt
International Energy, Inc. Securities Litigation) was filed in
November 2014 in the U.S. District Court for the Southern District
of Texas, seeking monetary damages and alleging that Cobalt and its
directors made misrepresentations in certain of Cobalt's securities
offering filings relating to: (i) the value of oil reserves in
Angola for which Cobalt had acquired drilling concessions, and (ii)
its compliance with the Foreign Corrupt Practices Act regarding its
operations in Angola and a U.S. government investigation regarding
the same.
The securities class action also named as co-defendants certain
securities underwriters and the five private equity sponsors of
Cobalt, including Riverstone and the Partnership. The class action
alleged that the Partnership has liability as a "control person"
for the alleged misrepresentations in Cobalt's securities offerings
as well as insider trading liability. The federal court dismissed
the insider trading claim against the Partnership.
On October 12, 2018, lead plaintiffs in the securities class action
moved the district court for approval of a settlement with various
parties, including the Partnership, under which the Partnership
would receive a release but would not make any financial
contribution.
In addition to the class action in federal court, derivative claims
were also filed in Texas state court in Houston (Ira Gaines v.
Joseph Bryant, et al.) on similar grounds, alleging that the
private equity sponsors, including the Partnership, breached their
fiduciary duties by engaging in insider trading. On May 9, 2018,
the Plan Administrator for Cobalt filed a Notice of Nonsuit with
Prejudice, dismissing all the claims in the case (including the
claim against the Partnership) with prejudice. The court ordered
the nonsuit of all claims in an order entered that day.
The Carlyle Group L.P. is an investment firm specializing in direct
and fund of fund investments. The Carlyle Group L.P. was founded in
1987 and is based in Washington, District of Columbia with
additional offices in 20 countries across six continents (North
America, South America, Asia, Australia, Europe, and Africa).
CAVALRY PORTFOLIO: Berardi Dismissed w/ Prejudice from FCRA Suit
----------------------------------------------------------------
In the case, PHILIP BERARDI, individually and on behalf of all
others similarly situated, Plaintiff, v. CAVALRY PORTFOLIO
SERVICES, LLC, and DOES 1-10, inclusive, Defendants, Case No.
2:18-cv-05797-MRW (C.D. Cal.), Judge Michael R. Wilner of the U.S.
District Court for the Central District of California, pursuant to
the parties' stipulation, (i) dismissed with prejudice the matter
as to the named Plaintiff, Berardi, and (ii) without prejudice as
to the Putative Class alleged in the First Amended Class Action
Complaint, pursuant to Federal Rule of Civil Procedure
41(a)(1)(A)(ii),. Each party will bear their own costs and
attorneys' fees.
A full-text copy of the Court's Oct. 9, 2018 Order is available at
https://is.gd/9o1qcv from Leagle.com.
Philip Berardi, Plaintiff, represented by Todd M. Friedman, Law
Office of Todd M Friedman PC, Adrian Robert Bacon, Law Offices of
Todd M Friedman PC, Meghan Elisabeth George, Law Offices of Todd M
Friedman PC & Thomas Edward Wheeler -- twheeler@fbtlaw.com -- Law
Offices of Todd M Friedman PC.
Cavalry Portfolio Services, LLC, Defendant, represented by Tomio B.
Narita -- tnarita@snllp.com -- Simmonds and Narita LLP, Jeffrey A.
Topor -- jtopor@snllp.com -- Simmonds and Narita LLP & Liana
Mayilyan -- Liana@snllp.com -- Simmonds and Narita LLP.
CENTERPLATE OF DELAWARE: Class Certification Sought in "Raquedan"
------------------------------------------------------------------
The Plaintiff in the lawsuit entitled RODRIGO RAQUEDAN, on behalf
of himself, all others similarly situated v. CENTERPLATE OF
DELAWARE INC., and DOES 1-50, inclusive, Case No. 5:17-cv-03828-LHK
(N.D. Cal.), moves the Court for an order certifying a plaintiff
class defined as:
"All persons employed as hourly-paid employees by Defendant
to work at Levi Stadium, AT&T Park or Qualcomm Stadium at
any time on or after May 24, 2013 through the date of class
certification."
Mr. Raquedan also asks the Court to appoint Plaintiff Monique
Raquedan as representative of the class or and any other sub-class
the Court may devise, and to appoint Shaun Setareh, Esq., and
Thomas Segal, Esq., of Setareh Law Group as Class Counsel.
In this putative wage and hour class action, the Plaintiff seeks to
certify claims for: (1) failure to pay wages for off the clock work
performed as a result of security checks when employees enter the
facility where they work (the facilities are large sports arenas)
and (2) Defendant's failure to provide lawfully compliant meal and
rest breaks under California law.
The Court will commence a hearing on January 31, 2019, at 1:30
p.m., to consider the Motion.[CC]
The Plaintiff is represented by:
Shaun Setareh, Esq.
Thomas Segal, Esq.
Farrah Grant, Esq.
Ashley Batiste, Esq.
SETAREH LAW GROUP
315 S. Beverly Drive, Suite 315
Beverly Hills, CA 90212
Telephone: (310) 888-7771
Facsimile: (310) 888-0109
E-mail: shaun@setarehlaw.com
thomas@setarehlaw.com
farrah@setarehlaw.com
ashley@setarehlaw.com
CF MANAGEMENT-IL: Certification of Personal Trainers Class Sought
-----------------------------------------------------------------
The Plaintiffs in the lawsuit styled LUNDON GOODEN, et al., on
behalf of themselves and others similarly situated v. CF
MANAGEMENT-IL, LLC and CAPITAL FITNESS, INC. both d/b/a XSPORT
FITNESS, INC., Case No. 1:18-cv-02200 (N.D. Ill.), ask the Court to
conditionally certify and authorize judicial notice to this
collective class:
All employees who are or have been employed by Defendants CF
Management-IL, LLC and/or Capital Fitness, Inc., both doing
business as XSport Fitness, Inc. as personal trainers
between March 27, 2015 and the present.
Under the Fair Labor Standards Act, the Plaintiffs seek conditional
certification and judicial notice of a collective action.
The Plaintiffs also seeks an order that:
(a) authorizes the Plaintiffs' counsel to send judicial notice
and the reminders to the putative collective class, and
requires the posting of the notice at the various
workplaces;
(b) approves the Plaintiffs' proposed notice and reminder
notice;
(c) compels XSport to produce a list of the putative
collective class members;
(d) bars XSport from engaging in any and all forms of
communication to prospective class members concerning the
merits and issues of their FLSA claims and bar Defendant
from securing any waivers or releases of the putative
plaintiffs' FLSA claims; and
(e) authorizes a ninety-day notice period for the putative
class members to opt-in.[CC]
The Plaintiffs are represented by:
Richard R. Gordon, Esq.
GORDON LAW OFFICES, LTD.
111 West Washington Street, Suite 1240
Chicago, IL 60602
Telephone: (312) 332-5200
Facsimile: (312) 242-4966
E-mail: rrg@gordonlawchicago.com
- and -
Kristen E. Prinz, Esq.
Amit Bindra, Esq.
THE PRINZ LAW FIRM, P.C.
1 East Wacker Drive, Suite 550
Chicago, IL 60601
Telephone: (312) 212-4450
Facsimile: (312) 284-4822
E-mail: kprinz@prinz-lawfirm.com
abindra@prinz-lawfirm.com
CHAPIN SCHOOL: Court Certifies Class in Singer Equipment Suit
-------------------------------------------------------------
In the case, SINGER EQUIPMENT COMPANY, INC., Plaintiff, v. THE
CHAPIN SCHOOL, LTD, IBEX CONSTRUCTION COMPANY, LLC, ANDY FRANKL,
Defendant, Docket No. 654538/2017, Motion Seq. No. 001 (N.Y. Sup.),
Judge O. Peter Sherwood of the Supreme Court, New York County, (i)
denied Chapin's cross-motion to dismiss the complaint; and (ii)
granted the Plaintiff's motion for class certification.
The Plaintiff moves for the certification of a class of the
Plaintiffs who are beneficiaries of Lien Law Article 3-A trust
funds received by the Chapin and IBEX in connection with a
renovation and construction project at 100 East End Avenue, New
York City. Defendant Chapin opposes and cross-moves to dismiss the
two claims against it.
The Complaint in the action first alleges that Chapin has withheld
approximately $1,793,793 from funds earned by Ibex and its
subcontractors in connection with the Project and those funds
should be an asset of the contractor's trust and held for the
benefit of Ibex subcontractors and suppliers. The second claim
asserts that funds received by Chapin from municipal bonds should
be deemed assets of an owner's trust and held for the benefit of
Ibex and its subcontractors and suppliers.
Chapin cross-moves based on documentary evidence and the
Plaintiff's alleged failure to state a claim, arguing that any
funds held by Chapin for the Project are not contractor or owner
trust funds within the meaning of New York Lien Law.
Chapin argues that the second claim, which asserts funds received
by Chapin from municipal bonds should be deemed assets of an
owner's trust and held for the benefit of Ibex and its
subcontractors and suppliers, fails to state a claim because the
Complaint fails to allege the funds come from one of the sources
listed in Lien Law section 70(5). Singer points to allegations in
the Complaint that Chapin obtained financing in connection with the
Project thru tax-exempt bond financing with the bonds secured by a
mortgage on the property. Accordingly, the Judge finds that the
portion of the cross-motion to dismiss made pursuant to CPLR
3211(a) (7) fails.
Chapin then argues the claim, as well as the first cause of action,
should be dismissed pursuant to CPLR Section 3211 (a) (1). The
Judge holds that allegations consisting of bare legal conclusions
as well as factual claims flatly contradicted by documentary
evidence are not entitled to any such consideration. The
documentary evidence presented is the affidavit of Marc Bogursky,
the affirmation of Jose Aquino, and the attached exhibits. The
affidavit and affirmation are not the type of evidence generally
considered essentially undeniable, as required to qualify as
documentary evidence.
Chapin points to the letter from First American Title Insurance
Company National Commercial Services, which states that, as of May
3, 2018, there were no mortgages recorded against the premises at
the Premises. However, that document, the Judge finds, notes it
may not be used or relied upon by any person other than the one
requesting it, among other disclaimers. Accordingly, he will not
rely upon it. Chapin also fails to cite any specific language
which utterly refutes the Plaintiff's factual allegations or
conclusively establishes a defense to the second cause of action as
a matter of law.
As to the first cause of action, regarding the existence of a
contractor's trust, Chapin argues it cannot be a trustee of a
contractor's trust, as contemplated by Lien Law section 70 (1-2),
because it is not a contractor. However, the Court of Appeals of
New York has held that money owed to a contractor but held by the
one hiring the contractor (there, the City of New York) may be the
subject of an Article 3-A trust fund. Therefore, Chapin's argument
that the first cause of action should be dismissed because Chapin
is not a contractor fails, the Judge holds. That claim will also
survive.
For these reasons, Judge Sherwood denied the cross-motion to
dismiss the complaint, and granted the motion for class
certification. The action may be maintained as a class action,
with the class defined as all beneficiaries of Lien Law Article 3-A
trust funds received by Chapin and Ibex in connection with a
multi-phase renovation and construction project located at 100 East
End Avenue, New York, New York 10028.
Defendants Chapin and Ibex will furnish the Plaintiff with a
verified statement pursuant to Lien Law sections 75 and 76 within
10 days from the entry of the Order. They will provide a list of
all Lien Law Article 3-A trust beneficiaries to Singer. Plaintiff
Singer will propose a method of notice to members of the class to
the court within 20 days from the entry of the Order.
A full-text copy of the Court's Oct. 10, 2018 Decision and Order is
available at https://is.gd/X9Npxi from Leagle.com.
CHATHAM LODGING: Still Defends Ruffy and Doonan Class Suits
-----------------------------------------------------------
Chatham Lodging Trust said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 31, 2018, for the
quarterly period ended September 30, 2018, that Island Hospitality
Management LLC continues to defend itself from two class action
suits entitled, Ruffy, et al, v. Island Hospitality Management,
LLC, et al. and Doonan, et al, v. Island Hospitality Management,
LLC, et al.
The first class action lawsuit was filed on October 21, 2016 under
the title Ruffy, et al, v. Island Hospitality Management, LLC, et
al. Case No. 16-CV-301473 and the second class action was filed on
March 21, 2018 under the title Doonan, et al, v. Island Hospitality
Management, LLC, et al. Case No. 18-CV-325187.
The class actions relate to hotels operated by Island Hospitality
Management LLC (IHM) in the state of California and owned by
affiliates of the Company and the NewINK JV, and/or certain third
parties. The complaints allege various wage and hour law violations
based on alleged misclassification of certain hotel managerial
staff and violation of certain California statutes regarding
incorrect information contained on employee paystubs.
The plaintiffs seek injunctive relief, money damages, penalties,
and interest.
Chatham Lodging said, "None of the potential classes has been
certified and we are defending our case vigorously. As of September
30, 2018, included in accounts payable is $0.2 million which
represents an estimate of the Company’s total exposure to the
litigation."
No further updates were provided in the Company's SEC report.
Chatham Lodging Trust is a self-advised, publicly-traded real
estate investment trust focused primarily on investing in upscale,
extended-stay hotels and premium-branded, select-service hotels.
The company is based in West Palm Beach, Florida.
CHEGG INC: Bragar Eagel Files Class Action Lawsuit
--------------------------------------------------
Bragar Eagel & Squire, P.C. reminds investors that a class action
lawsuit has been commenced on behalf of stockholders of Skechers
U.S.A., Inc., USA Technologies, Inc., OPKO Health, Inc., and Chegg,
Inc. Stockholders have until the deadlines listed below to
petition the court to serve as lead plaintiff. Additional
information about each case can be found at the link provided.
Chegg, Inc. (NYSE: CHGG)
Class Period: July 30, 2018 - September 25, 2018
Lead Plaintiff Deadline: November 26, 2018
The complaint alleges that throughout the Class Period, defendants
made materially false and/or misleading statements, as well as
failed to disclose material adverse facts about the company’s
business, operations, and prospects. Specifically, defendants
failed to disclose to investors: (1) that the company lacked
adequate security measures to protect users data; (2) that the
company lacked the internal controls and procedures to detect
unauthorized access to its systems and to its data; (3) that as a
result, the company would incur additional expenses and litigation
risks; and (4) that, as a result of the foregoing, defendant’s
positive statements about the company’s business, operations, and
prospects were materially false and/or misleading and/or lacked a
reasonable basis.
To learn more about the Chegg class action go to:
https://bespc.com/chegg/.
Brandon Walker, Esq.
Melissa Fortunato, Esq.
Bragar Eagel & Squire, P.C.
Telephone: (212) 355-4648
Website: www.bespc.com
Email: fortunato@bespc.com
walker@bespc.com [GN]
CHESAPEAKE APPALACHIA: Court Refuses to Certify Class in Lutz Suit
------------------------------------------------------------------
In the case, REGIS F. LUTZ, et al., Plaintiffs, v. CHESAPEAKE
APPALACHIA, LLC, Defendant, Case No. 4:09-cv-2256 (N.D. Ohio),
Judge Sara Lioi of the U.S. District Court for the Northern
District of Ohio, Eastern Division, (i) denied the Plaintiffs'
renewed motion for class certification, and (ii) denied the
Plaintiffs' motion for leave to serve a supplemental damages
report, which belatedly seeks to add their expert's calculation of
class-wide damages.
The Plaintiffs initiated the putative class action on Sept. 30,
2009. There are five named Plaintiffs -- four individuals (Regis
F. Lutz, Marion L. Lutz, Leonard W. Yochman, and Joseph L. Yochman)
and one limited liability company (C.Y.V., LLC). Each Plaintiff is
a lessor of interests in natural gas estates in tracts of land --
the Lutzes' land and C.Y.V.'s land is in Trumbull County and the
Yochmans' land is in Mahoning County. The complaint generally
alleges that all of the Plaintiffs have been underpaid on their
natural gas royalties by Columbia Natural Resources, Inc. (renamed
Chesapeake Appalachia, L.L.C. when it was acquired by Chesapeake
Energy Corp. in 2005).
On June 10, 2018, the Court granted the Defendant's motion to
dismiss, finding the contract claim time-barred and finding no
independent basis for the remaining tort claims. On the
Plaintiffs' appeal, the Sixth Circuit held that each royalty
underpayment triggered a new accrual period, and concluded that the
contract claim in Count I of the complaint should survive as to any
claims for underpayment of royalties that occurred within four
years of the filing of the complaint, that is, back as far as Sept.
30, 2005. The court of appeals also held that the Plaintiffs may
be entitled to equitable tolling on the basis of fraudulent
concealment, but that this was a matter for summary judgment or
trial. The court affirmed the Court's dismissal in all other
respects.
On remand, the parties filed cross-motions for summary judgment,
and the Plaintiffs moved for class certification. On Oct. 30,
2014, on the parties' joint motion, the class certification
briefing was suspended and the motion was denied without prejudice
to renewal, pending the outcome of the dispositive motions. On
April 1, 2015, having consulted with the counsel, the Court
certified a question of Ohio law to the Ohio Supreme Court, which,
on June 3, 2015, accepted certification. But on Nov. 2, 2016,
Ohio's high court declined to answer the certified question.
On Aug. 18, 2017, the Defendant renewed its motion for partial
summary judgment. After full briefing, on Oct. 25, 2017, the Court
entered its ruling as to the four issues the Defendant's motion had
raised:
Chesapeake seeks partial summary judgment on the following issues:
(1) on its counterclaim seeking a declaration that, to the extent
plaintiffs have leases with royalty clauses valuing the royalty
payment at the well, royalties under such leases must be paid based
on the value of gas at the well, and not at any other location; (2)
on its counterclaim seeking a declaration that it has complied with
the Plaintiffs' at the well leases by paying a royalty based on the
market value of gas at the wellhead; (3) on the Plaintiffs' line
loss claim with respect to all of the Plaintiffs' leases; and (4)
on the Plaintiffs' claim that the statute of limitations was
equitably tolled due to fraudulent concealment.
The Court linked issues (1) and (2), holding that, for "at the
well" leases, the location for valuing the gas for purposes of
computing the royalty was "at the well." The Court decided only
the legal question raised by these first two issues, not any
factual question of whether the dollar amounts paid by the
Defendant at given time were correct under the legal interpretation
that was determined therein.
The third issue -- "line loss" -- was effectively mooted as to the
"at the well" leases, and, for the remaining leases, the Court
determined that the Plaintiffs' "three-sentence argument" was
insufficient and that they had provided no evidence to support the
allegations of line loss in their complaint and made no effort to
refute the Defendant's legal arguments, which the Court found
persuasive. Summary judgment was granted on the line loss claim as
to all leases.
Finally, as to the fourth issue, the Court determined that the
Plaintiffs had failed to establish that the doctrine of fraudulent
concealment entitled them to tolling of the four-year statute of
limitations.
As a result of the summary judgment ruling, the sole remaining
claim is the breach of contract claim in Count I of the complaint
and, in particular, assertions that the Defendant both (1) paid
royalties under all relevant leases based on an incorrect unit
price and, (2) made impermissible cost deductions on royalties paid
under leases that did not contain "at the well" language.
On Feb. 18, 2018, the Plaintiffs filed the instant renewed motion
for class certification under Fed. R. Civ. P. 23(a) and 23(b)(3).
The Defendant filed a memorandum in opposition. They assert that
there are 76 class leases, 43 of which do not have "at the well"
royalty language. As to the 43 leases, the Plaintiffs seek class
certification on both the claim as to incorrect price and the claim
as to wrongful cost deductions.
They seek to certify the following two sub-classes:
Sub-Class 1: All persons entitled to royalty payments by
Columbia Natural Resources, Inc., Columbia Natural Resources,
L.L.C. ("CNR") or Chesapeake Appalachia, LLC at any time from Sept.
30, 2005 to Oct. 10, 2010 pursuant to an oil and gas lease
previously held by CNR that grant rights to produce natural gas
from real property in the state of Ohio and the price used to
calculate the royalties in one or more months was the fixed price
in the Mahonia sale contracts.
Sub-Class 2: All persons entitled to royalty payments by
Columbia Natural Resources, Inc., Columbia Natural Resources,
L.L.C. ("CNR") or Chesapeake Appalachia, L.L.C. at any time from
Sept. 30, 2005 to Oct. 10, 2010 pursuant to an oil and gas lease
previously held by CNR that grant rights to produce natural gas
from real property in the state of Ohio, the lease does not include
at the well royalty language, and post production costs were
deducted in the calculation of the royalties.
In addition, the Plaintiffs seek to include in Sub-Class 1, the 32
"at the well" leases identified in their motion.
Also before the Court is the Plaintiffs' motion for leave to serve
a supplemental damages report, which belatedly seeks to add their
expert's calculation of class-wide damages. The Defendant opposes
this motion.
Among other things, Judge Lioi concludes that, at the very least,
the class representatives -- now consisting of C.Y.V., LLC
(apparently represented by Joseph Yochman) and Joseph Yochman,
individually -- are inadequate to represent either of the two
classes proposed by the Plaintiffs. That fact alone, even if the
counsel is adequate, would be reason under the case law to deny
certification.
And although the Plaintiffs claim that they were all underpaid on
their royalties, this is the type of "abstract level of
generalization" that has been criticized by the Sixth Circuit as an
insufficient basis to argue that there is a common question at
issue for the entire putative class.
For the reasons set forth, Judge Lioi denied the Plaintiffs'
renewed motion for class certification.
As to the Plaintiffs' motion for leave, in view of the ruling
denying class certification, the Judge holds that supplementation
of the Plaintiffs' expert report is not necessary; the original
report already contains the expert's damages calculations for the
named Plaintiffs. Therefore, the motion for leave to supplement is
denied.
A full-text copy of the Court's Oct. 5, 2018 Memorandum Opinion and
Order is available at https://is.gd/VHbVgl from Leagle.com.
Regis F. Lutz, Marion L. Lutz, Leonard W. Yochman, Joseph L.
Yochman & C.Y.V. LLC, Plaintiffs, represented by Robert C. Sanders
-- rcsanders@rcsanderslaw.com -- & James Allison Lowe --
jlowe@lewlaw.com -- Lowe, Eklund & Wakefield.
Chesapeake Appalachia, LLC, Defendant, represented by Alexandra I.
Russell -- alexandra.russell@kirkland.com -- Kirkland & Ellis,
Nicolle R. Snyder Bagnell -- nbagnell@reedsmith.com -- Reed Smith,
Daniel T. Donovan -- daniel.donovan@kirkland.com -- Kirkland &
Ellis, Jonathan T. Blank -- jblank@mcguirewoods.com -- McGuire
Woods, Kevin C. Abbott -- kabbott@reedsmith.com -- Reed Smith,
Leonard J. Marsico -- lmarsico@mcguirewoods.com -- McGuire Woods,
Ragan Naresh -- ragan.naresh@kirkland.com -- Kirkland & Ellis &
Yvette G. Harmon -- yharmon@mcguirewoodsemeritus.com -- INVALID
ADDRESS - McGuire Woods.
Chesapeake Appalachia, LLC, Counter-Claimant, represented by
Alexandra I. Russell, Kirkland & Ellis, Alexia R. Brancato,
Kirkland & Ellis, Nicolle R. Snyder Bagnell, Reed Smith, Stacy Lee
Williams, Reed Smith, Daniel T. Donovan, Kirkland & Ellis, Jonathan
T. Blank, McGuire Woods, Kevin C. Abbott, Reed Smith, Leonard J.
Marsico, McGuire Woods, Ragan Naresh, Kirkland & Ellis & Yvette G.
Harmon, McGuire Woods.
C.Y.V. LLC, Marion L. Lutz, Regis F. Lutz, Joseph L. Yochman &
Leonard W. Yochman, Counter-Defendants, represented by Robert C.
Sanders & James Allison Lowe, Lowe, Eklund & Wakefield.
CONSUMER PROTECTION: Sued Over Unwanted Cellular Telephone Calls
----------------------------------------------------------------
DAVID VACCARO, individually and on behalf of all others similarly
situated, the Plaintiff, vs. CONSUMER PROTECTION CORP. d/b/a
FUNDMERICA, and DOES 1 through 10, inclusive, and each of them, the
Defendant, Case No. 2:18-cv-09261 (C.D. Cal., Oct. 29, 2018), seeks
damages and any other available legal or equitable remedies
resulting from the illegal actions of Defendant, in negligently,
knowingly, and/or willfully contacting Plaintiff on Plaintiff's
cellular telephone in violation of the Telephone Consumer
Protection Act, and related regulations, specifically the National
Do-Not-Call provisions, thereby invading Plaintiff's privacy.
According to the complaint, beginning in or around July 12, 2018,
the Defendant contacted Plaintiff on Plaintiff's cellular telephone
number ending in -3928, in an attempt to solicit 22 Plaintiff to
purchase Defendant's services. Defendant used an "automatic
telephone dialing system" to place its call to Plaintiff seeking to
solicit its services.
Defendant did not possess Plaintiff's "prior express consent" to
receive calls using an automatic telephone dialing system or an
artificial or prerecorded voice on his cellular telephone. Further,
Plaintiff's cellular telephone number ending in -3928 was added to
the National Do-Not-Call Registry on or about July 2, 2003.
Defendant placed multiple calls soliciting its business to
Plaintiff on his cellular telephone ending in -3928 in or around
July 2018. Plaintiff received numerous solicitation calls from
Defendant within a 12-month period, the lawsuit says.[BN]
Attorneys for Plaintiff:
Todd M. Friedman, Esq.
Adrian R. Bacon, Esq.
Meghan E. George, Esq.
Tom E. Wheeler, Esq.
LAW OFFICES OF TODD M. FRIEDMAN, P.C.
21550 Oxnard St., Suite 780
Woodland Hills, CA 91367
Telephone: 323-306-4234
Facsimile: 866-633-0228
E-mail: tfriedman@ toddflaw.com
abacon@ toddflaw.com
mgeorge@toddflaw.com
twheeler@toddflaw.com
COWEN INC: Landol Fletcher Class Suit Remains Pending
-----------------------------------------------------
Cowen Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on October 31, 2018, for the quarterly
period ended September 30, 2018, that the company continues to
defend itself from a putative class action suit filed by Landol
Fletcher.
On December 27, 2013, Landol Fletcher filed a putative class action
lawsuit against Convergex Holdings, LLC, Convergex Group, LLC,
Cowen Execution, Convergex Global Markets Limited and G-Trade
Services LLC (collectively, "Convergex") in the United States
District Court for the Southern District of New York (Landol
Fletcher and all others similarly situated v. Convergex Group LLC,
Cowen Execution, Convergex Global Markets Ltd., Convergex Holdings
LLC, G-Trade Services LLC, & Does 1-10, No. 1:13-CV-09150-LLS).
The suit alleges breaches of fiduciary duty and prohibited
transactions under ERISA and seeks to maintain a class action on
behalf of all ERISA plan participants, beneficiaries and named
fiduciaries whose plans were impacted by net trading by Convergex
Global Markets Limited from October 2006 to December 2011. On April
11, 2014, Landol Fletcher and Frederick P. Potter Jr., filed an
amended complaint raising materially similar allegations. This
matter was assumed by the Company as a result of the Company's
previously announced acquisition of Convergex Group, which was
completed on June 1, 2017.
On February 17, 2016, the District Court granted Convergex's motion
to dismiss the amended complaint. Plaintiffs filed an appeal to the
Second Circuit, and the AARP and Department of Labor filed amicus
briefs on plaintiffs' behalf. The appeal was argued on December 12,
2016. On February 10, 2017, the Second Circuit Court of Appeals (1)
reversed the District Court, finding that plaintiff has
constitutional standing in a "representative" capacity to sue for
damages to the ERISA defined benefit plan in which he is a
participant, and (2) remanded to the District Court to reconsider,
in light of the Circuit Court's decision, the issue whether
plaintiff has standing to pursue claims on behalf of ERISA plans in
which plaintiff is not a participant. Convergex filed a petition
for rehearing, and the Court of Appeals denied the petition.
On June 30, 2017, the Company filed a notice of motion and
memorandum of law in support of a motion to stay the proceedings in
the District Court pending resolution of its petition for writ of
certiorari, which the Company intended to file with the U.S.
Supreme Court. On August 16, 2017, the District Court granted the
Company's motion to stay the proceedings in the District Court
pending resolution of the Company's petition for writ of
certiorari. On September 1, 2017, the Company filed a petition with
the United States Supreme Court for a writ of certiorari requesting
review of the decision of the Court of Appeals.
On January 8, 2018, the U.S. Supreme Court denied the Company's
petition for a writ of certiorari. The previously granted stay of
the proceedings in the District Court has been lifted, and the case
is proceeding in the District Court. Status conferences were held
on April 6, 2018 and October 12, 2018.
Cowen said, "We are indemnified against losses arising from this
matter pursuant to, and subject to, the provisions of the purchase
agreement relating to the acquisition of Convergex Group. Because
the case is in its preliminary stages, the Company cannot predict
the outcome at this time, but it does not currently expect this
case to have a material effect on its financial position or its
results of operations."
Cowen Inc. is a publicly owned asset management holding company.
Through its subsidiaries, the firm provides alternative investment
management, investment banking, research, and sales and trading
services for its clients. It manages separate client focused
portfolio through its subsidiaries. Cowen Group, Inc. was founded
in 1994 and is headquartered in New York, New York with additional
offices in Boston, Massachusetts, Chicago, Illinois, Cleveland,
Ohio, Dallas, Texas, and San Francisco, California.
CREDIT CONTROL: Thigpen Sues Over Erroneous Auto-dialed Calls
-------------------------------------------------------------
Christina Thigpen, individually and on behalf of all others
similarly situated, Plaintiffs, v. Credit Control, LLC, Defendant,
Case No. 18-cv-02498 (M.D. Fla., October 10, 2018), seeks damages,
injunctive relief, and any other available legal or equitable
remedies, resulting from violations of the Telephone Consumer
Protection Act.
Credit Control called Thigpen to inquire about a debt not owed by
her using an artificial and prerecorded voice and/or an automatic
telephone dialing system, notes the complaint.
Scott A. Bursor, Esq.
Joshua D. Arisohn, Esq.
Andrew Obergfell, Esq.
BURSOR & FISHER, P.A.
369 Lexington Avenue, 10th Floor
New York, NY 10017
Telephone: (212) 989-9113
Facsimile: (212) 989-9163
E-Mail: scott@bursor.com
jarisohn@bursor.com
aobergfell@bursor.com
CSI COMPANIES: Udoewa Labor Suit to Recover Unpaid Overtime
-----------------------------------------------------------
Patrick Udoewa, individually and on behalf of all others similarly
situated, Plaintiff, v. The CSI Companies, Inc., Defendants, Case
No. 18-cv-01199 (M.D. Fla., October 10, 2018), seeks to recover
compensation, overtime wages, liquidated damages, attorneys' fees
and costs pursuant to the Fair Labor Standards Act of 1938.
CSI provides staffing services to customers throughout the United
States, recruiting and hiring individuals to assist hospitals and
healthcare organizations. It also provides healthcare information
technology, training and support to medical facilities in
connection with the implementation of integrated health computer
systems, specifically, new electronic recordkeeping systems. Udoewa
worked for CSI as a consultant. He claims to have worked in excess
of 40 hours per week without being paid overtime premium. [BN]
Plaintiff is represented by:
Gregg I. Shavitz, Esq.
SHAVITZ LAW GROUP, P.A.
1515 South Federal Hiway, Suite 404
Boca Raton, FL 33432
Tel: (561) 447-8888
Fax: (561) 447-8831
Email: gshavitz@shavitzlaw.com
- and -
James B. Zouras, Esq.
Ryan F. Stephan, Esq.
STEPHAN ZOURAS, LLP
205 N. Michigan Avenue, Suite 2560
Chicago, IL 60601
Email: jzouras@stephanzouras.com
rstephan@stephanzouras.com
DISCOVER FINANCIAL: Class Suit by B&R Supermarket Ongoing
---------------------------------------------------------
Discover Financial Services said in its Form 10-Q Report filed with
the Securities and Exchange Commission on October 31, 2018, for the
quarterly period ended September 30, 2018, that the company still
defends a class action suit entitled, B&R Supermarket, Inc., d/b/a
Milam's Market, et al. v. Visa, Inc. et al.
On March 8, 2016, a class action lawsuit was filed against the
Company, other credit card networks, other issuing banks, and EMVCo
in the U.S. District Court for the Northern District of California
(B&R Supermarket, Inc., d/b/a Milam's Market, et al. v. Visa, Inc.
et al.) alleging violations of the Sherman Antitrust Act,
California's Cartwright Act, and unjust enrichment.
Plaintiffs allege a conspiracy by defendants to shift fraud
liability to merchants with the migration to the EMV security
standard and chip technology. Plaintiffs assert joint and several
liability among the defendants and seek unspecified damages,
including treble damages, attorneys' fees, costs and injunctive
relief.
On July 15, 2016, plaintiffs filed an amended complaint that
includes additional named plaintiffs, reasserts the original
claims, and includes additional state law causes of action. The
defendants filed motions to dismiss on August 5, 2016. On September
30, 2016, the court granted the motions to dismiss for certain
issuing banks and EMVCo but denied the motions to dismiss filed by
the networks, including the Company.
In May 2017, while discovery was proceeding and after class
certification was fully briefed but not yet ruled upon, the Court
entered an order transferring the entire action to a federal court
in New York that is presiding over certain related claims that are
pending in the actions consolidated as MDL 1720. In June 2017, the
federal court in New York declined to consolidate the B&R case with
MDL 1720, but ordered the parties to coordinate discovery across
the actions to the extent they involved related issues.
On July 6, 2017, the Company requested permission to file a motion
to dismiss the claims against it in the federal court in New York.
On August 24, 2017, the Court held a status conference at which it
set a briefing schedule on Discover's motion to dismiss. In
September 2017, Discover filed its motion to dismiss. On November
29, 2017, the Court heard argument on class certification and took
the motion under advisement. On January 23, 2018, the Court heard
argument on Discover's motion to dismiss. On March 11, 2018, the
Court entered an order denying the plaintiffs' motion of class
certification without prejudice to filing a renewed motion with
additional detail on the proposed class period and alleged
antitrust injuries.
Fact discovery closed on June 14, 2018, and plaintiffs filed a
renewed motion for class certification on July 16, 2018. Plaintiffs
filed their opening merits expert reports on October 5, 2018, and
class briefing will be complete by November 2018. The Court has not
yet set a hearing date on the class motion, and merits expert
discovery will close in 2019.
Discover Financial said, "The Company is not in a position at this
time to assess the likely outcome or its exposure, if any, with
respect to this matter, but will seek to vigorously defend against
all claims asserted by the plaintiffs."
Discover Financial Services, through its subsidiaries, operates as
a direct banking and payment services company in the United States.
The company was incorporated in 1960 and is based in Riverwoods,
Illinois.
DISTRICT OF COLUMBIA: Maldonado Seeks Certification of Class
------------------------------------------------------------
The Plaintiffs in the lawsuit styled ELSA MALDONADO, et al., on
behalf of themselves and all others similarly situated v. THE
DISTRICT OF COLUMBIA, Case No. 1:10-cv-01511-RJL (D.D.C.), renew
their motion to certify the plaintiff class:
All persons who have applied for, received, or are receiving
D.C. Medicaid who present a prescription to a
Medicaid-participating provider for a medication that is not
completely excluded from coverage under the D.C. Medicaid
program and who do not, or will not, receive timely and
adequate individualized written notice when the prescription
is denied or is not filled as written.
Elsa Maldonado, et al., first moved to certify the plaintiff class
on December 8, 2010. However, on February 14, 2011, the Court
issued a minute order staying the Defendants' response to the
Plaintiffs' motion for class certification until 12 days after the
Court ruled on the Defendants' motion to dismiss. Since then, the
case has twice been to the Court of Appeals for the District of
Columbia Circuit. Due to the passage of time, the Plaintiffs now
file this renewed motion for class certification.
The Plaintiffs bring this case on behalf of themselves and others
similarly situated to challenge the District of Columbia's alleged
systemic failure to provide individualized written notice to
persons whose prescriptions are denied Medicaid coverage at a
District of Columbia pharmacy. The Named Plaintiffs are four
individuals, who are eligible for Medicaid and presented a
Medicaid-participating pharmacy with a prescription for a
medically-necessary medication and did not receive individualized
written notice when the prescription was denied coverage or
otherwise not filled as written.[CC]
The Plaintiffs are represented by:
Kathleen L. Millian, Esq.
Stephanie A. Madison, Esq.
TERRIS, PRAVLIK & MILLIAN, LLP
1816 12th Street, NW, Suite 303
Washington, DC 20009-4422
Telephone: (202) 682-2100
E-mail: kmillian@tpmlaw.com
smadison@tpmlaw.com
- and -
Jane Perkins, Esq.
NATIONAL HEALTH LAW PROGRAM
101 East Weaver Street, Suite G-7
Carrboro, NC 27510
Telephone: (919) 968-6308
E-mail: perkins@healthlaw.org
DIVURGENT LLC: $2.45MM Hatzey Suit Settlement Has Court Approval
----------------------------------------------------------------
In the case, ALEXANDER HATZEY, individually and on behalf of all
others similarly situated Plaintiff, v. DIVURGENT, LLC, Defendant,
Case No. 2:18-cv-191 (E.D. Va.), Magistrate Judge Lawrence R.
Leonard of the U.S. District Court for the Eastern District of
Virginia, Norfolk Division, recommended that the Plaintiff's
Unopposed Motion for Settlement Approval be granted.
The Plaintiff worked for Divurgent as a consultant providing
support and training for use of new recordkeeping systems to
Divurgent clients at Lahey Medical Center in Boston, Massachusetts,
between March 2015 and September 2015. Divurgent is a corporation
that offers information technology education services for the
healthcare industry and maintains its headquarters in Virginia
Beach, Virginia.
During the period he worked for the Defendant at Lahey Medical
Center, the Plaintiff was classified as an independent contractor.
Hatzey was paid solely on an hourly basis, paid only for time he
actually worked, and was not paid overtime. Others similarly
situated to the Plaintiff worked for Divurgent providing the same
or similar training and support to medical facilities across the
United States for new electronic recordkeeping systems. These
individuals were also classified as independent contractors.
The Plaintiff filed a Complaint on April 10, 2018, for a collective
class action within which the Plaintiff alleges Hatzey, and all
those similarly situated were improperly classified as independent
contractors, rather than employees of Divurgent, and were not
exempt from the FLSA. The Complaint further alleged that, because
the Members were improperly classified as independent contractors,
they did not receive overtime pay for hours worked in excess of
forty hours per week to which they were entitled.
Divurgent filed an Answer to Plaintiff's Complaint on May 22, 2018.
On June 6, 2018, the parties filed a Stipulation to Stay
Litigation for ADR and Tolling Agreement, and the Court entered a
Stipulation and Order to Stay Litigation for ADR and Tolling
Agreement on July 13, 2018. The case was stayed until Aug. 10,
2018, at which time the Plaintiff filed a Motion for Settlement
Approval with an accompanying memorandum. The Motion was referred
to the Magistrate for a report and recommendation by the U.S.
District Judge on Aug. 13, 2018.
According to the proposed Settlement Agreement, the Defendant
agreed to pay a total amount of $2.45 million to settle the action.
In exchange, the named Plaintiff and all participating Members
agree to release their claims against Divurgent. Under the
Agreement Hatzey is to receive $10,000 for his efforts in bringing
and prosecuting the matter, the Plaintiff's counsel will receive
$816,666.67, which is one-third of the Gross Settlement Amount, and
the Plaintiff's counsel will be reimbursed for out-of-pocket costs
not to exceed $40,000.00.
The remaining amount of money is to be divided among the Members
proportionate to the number of unpaid hours of overtime worked by
each Member. The Members will receive a notice of settlement and a
check in an amount proportionate to the number of overtime hours
unpaid to that Member during the relevant period. Each Member must
cash his or her check within 180 days to participate in the
settlement and release his or her claim against Divurgent. Those
Members who do not cash their checks will not release their claims
against Divurgent. At the end of the 180-day period, if the amount
of uncashed checks exceeds $50,000, any money left over due to
uncashed checks will be redistributed among the participating
Members on a pro rata basis. If the uncashed amount is less than
$50,000, that amount will be donated to Public Justice, a legal
non-profit. If all 1,065 Members participate, the average payment
will be $1,486.70.
The Court held a hearing on the Plaintiff's Motion for Settlement
Approval on Aug. 30, 2018.
Given the strength of the Plaintiff's' claims, the defenses
advocated by the Defendant, the uncertainty of damages,
consideration of appropriate attorneys' fees and costs, and the
general uncertainty and expense that accompanies all litigation,
Magistrate Judge Leonard concludes that the proposed $2.45
settlement is fair and reasonable and in accordance with the
purposes of the FLSA. Therefore, he recommended that the
Plaintiff's Motion for Settlement Approval be granted.
The Magistrate Judge finds that the attorneys' fee request is fair
and reasonable based on their experience, competence, and the
nature of the FLSA litigation. The Defendant also does not
challenge the amount of the fee requested. He also finds that the
total costs not to exceed $40,000, when considering the amount of
incurred costs to date and expected future costs, appear
reasonable.
A full-text copy of the Court's Oct. 9, 2018 Report and
Recommendation is available at https://is.gd/IXu92h from
Leagle.com.
Alexander Hatzey individually and on behalf of all others,
Plaintiff, represented by Andrew Joseph Guzzo --
aguzzo@kellyandcrandall.com -- Kelly & Crandall PLC, Casey Shannon
Nash -- casey@kellyandcrandall.com -- Kelly & Crandall PLC, Kristi
Cahoon Kelly -- kkelly@kellyandcrandall.com -- Kelly & Crandall
PLC, Alexandra K. Piazza -- apiazza@bm.net -- Berger Montague, PC,
pro hac vice, David Michael Blanchard -- blanchard@bwlawonline.com
-- Blanchard & Walker PLLC, pro hac vice, Harold Louis Lichten --
hlichten@llrlaw.com -- Lichten & Liss-Riordan PC, pro hac vice,
Olena Savytska -- osavytska@llrlaw.com -- Lichten & Liss-Riordan
PC, pro hac vice, Sarah R. Schalman-Bergen --
sschalman-bergen@bm.net -- Berger Montague, PC, pro hac vice &
Shanon J. Carson -- scarson@bm.net -- Berger Montague, PC, pro hac
vice.
Cecilia Huynh, Christopher Lam, Iman Tatum, Jess Tseng, Kyrima
Davis, Lynn Casimir, Marvina Whethers, Melissa Brown, Nahom
Debessay, Taiwo Lamidi, Aishah Tatum, Bruno Fava, Hillary Ncheh,
Omoniyi Awofesobi, Shimiya Franklin, Vyanca Williams, Crystal E.
Ricard, Gregory Joseph, Crystal L. Young, Lawyer Alexander, Thomas
Lau, Ade Gboyega Salau, Akeem Adebayo, Alison Davis, Derick
Agyemang, Hassen Dagher, James Chung, John Tran, Kartina J. Myers,
Korey Stephens, Pauline Musa, Tiffany Collins, Victor Akinola,
Wendell Hicks, Catherine Bernardo, Larissa Collier, Nancy La, Tasha
Taylor, Vernell Logwood, Candice Bennett, Jimmy Jocelyn & Lawrence
Lisby, Plaintiffs, represented by Kristi Cahoon Kelly, Kelly &
Crandall PLC.
Brenton Walters, Jazmin Parker, Reginald Jean-Charles & Vanika
Poydras, Plaintiffs, represented by Andrew Joseph Guzzo, Kelly &
Crandall PLC, Casey Shannon Nash, Kelly & Crandall PLC & Kristi
Cahoon Kelly, Kelly & Crandall PLC.
Divurgent, LLC, Defendant, represented by Laura Denise Windsor --
lwindsor@williamsmullen.com -- Williams Mullen.
ELECTROLUX HOME: Certification of Classes Sought in Elward Suit
---------------------------------------------------------------
The Plaintiffs in the lawsuit entitled TERESA ELWARD, et al. v.
ELECTROLUX HOME PRODUCTS, INC., Case No. 1:15-cv-09882 (N.D. Ill.),
move for the entry of an order pursuant to Rule 23 of the Federal
Rules of Civil Procedure certifying the proposed classes in the
case.
The Plaintiffs also ask the Court to appoint their attorneys as
class counsel pursuant to Rule 23(g), and to direct notice to be
sent to class members pursuant to Rule 23(c).[CC]
The Plaintiffs are represented by:
Edward A. Wallace, Esq.
Tyler J. Story, Esq.
WEXLER WALLACE LLP
55 West Monroe Street, Suite 3300
Chicago, IL 60603
Telephone: (312) 346-2222
Facsimile: (312) 346-0022
E-mail: eaw@wexlerwallace.com
tjs@wexlerwallace.com
- and -
Gregory F. Coleman, Esq.
Mark E. Silvey, Esq.
Adam Edwards, Esq.
GREG COLEMAN LAW PC
First Tennessee Plaza
800 S. Gay Street, Suite 1100
Knoxville, TN 37929
Telephone: (865) 247-0080
Facsimile: (865) 522-0049
E-mail: greg@gregcolemanlaw.com
adam@gregcolemanlaw.com
mark@gregcolemanlaw.com
- and -
Shanon J. Carson, Esq.
Arthur Stock, Esq.
BERGER MONTAGUE PC
1818 Market Street
Philadelphia, PA 19103
Telephone: (215) 875-3000
Facsimile: (215) 875-4620
E-mail: scarson@bm.net
astock@bm.net
ENERGY TRANSFER: WeissLaw Files Class Action Lawsuit
----------------------------------------------------
WeissLaw LLP has filed a class action on behalf of unitholders of
Energy Transfer Partners, L.P. ("ETP") seeking to pursue remedies
under the Securities Exchange Act of 1934 (the "Exchange Act") in
connection with the proposed acquisition of ETP by Energy Transfer
Equity, L.P. ("ETE"). The class action was commenced in the United
States District Court for the Northern District of Texas, Dallas
Division.
On August 1, 2018, ETP and ETE issued a joint press release
announcing that they had entered into an Agreement and Plan of
Merger pursuant to which ETP unitholders will be entitled to
receive 1.28 common units of ETE for each ETP common unit held (the
"Proposed Transaction").
The complaint seeks injunctive and other relief on behalf of the
named plaintiff and all ETP unitholders, and alleges that in an
attempt to secure unitholder approval for the merger, the
defendants filed a materially incomplete and misleading proxy
statement with the Securities and Exchange Commission in violation
of the Exchange Act. The omitted and/or misrepresented information
is believed to be material to ETP unitholders' ability to make an
informed decision whether to vote in favor of the Proposed
Transaction. The plaintiff is represented by WeissLaw, which has
expertise in prosecuting investor class actions and extensive
experience in actions involving financial fraud.
If you wish to serve as lead plaintiff, you must move the Court no
later than sixty (60) days from today. If you wish to discuss this
action or have any questions concerning this notice or your rights
or interests, please contact plaintiff's counsel, Joshua M. Rubin
of WeissLaw at 888.593.4771, or by e-mail at
stockinfo@weisslawllp.com. Any member of the putative class may
move the Court to serve as lead plaintiff through counsel of their
choice, or may choose to do nothing and remain an absent class
member. [GN]
FRONTIER AIRLINES: Ridgell Moves to Certify 2 Classes of Passengers
-------------------------------------------------------------------
The Plaintiff in the lawsuit captioned ANDREA RIDGELL, on behalf of
herself and others similarly situated v. FRONTIER AIRLINES, INC. a
Colorado corporation; AIRBUS S.A.S., a foreign corporation doing
business in the State of California; AIRBUS GROUP HQ INC., a
corporation doing business in the State of California, Case No.
2:18-cv-04916-PA-AFM (C.D. Cal.), seeks certification of two
classes of passengers defined as:
* Nationwide Class:
All persons in the United States who have flown in one of
Defendants' aircraft that have experienced a bleed air
event. Specifically excluded from this Class are
Defendants, the officers, directors, or employees of
Defendants, any entity in which Defendants have a
controlling interest; and any affiliate, legal
representative, heir, or assign of Defendants. Also
excluded any federal, state, or local governmental entities,
any judicial officer presiding over this action and the
members of his/her immediate family and judicial staff, and
any juror assigned to this action; and
* Flight 1630 Class:
All passengers in the United States who were on Frontier
Airlines Flight 1630 on June 2, 2017.
The case arises from "fume" events, which occur as the result of
the defective design and manufacture of Frontier Airline's fleet of
Airbus aircrafts. Fume events occur when the air inside the
passenger cabin of an aircraft becomes contaminated with pyrolised
compounds, such as engine oil, de-icing or hydraulic fluid. Such
events are caused by the "bleed" air system used in the Defendants'
aircrafts, which draws pre-heated compressed air from the engine
and pumps this air straight into the cabin after being cooled. The
Plaintiff alleges these causes of action on behalf of some or all
of the members of the classes: (1) strict products liability; (2)
breach of warranties; (3) negligence; (4) false imprisonment; (5)
negligent infliction of emotional distress.
Ms. Ridgell also asks the Court to appoint her as class
representative and to appoint her counsel as class counsel.
The Court will commence a hearing on November 19, 2018, at 1:30
p.m., to consider the Motion.[CC]
The Plaintiff is represented by:
Marcus J. Bradley, Esq.
Kiley L. Grombacher, Esq.
Taylor L. Emerson, Esq.
BRADLEY/GROMBACHER, LLP
2815 Townsgate Road, Suite 130
Westlake Village, CA 91361
Telephone: (805) 270-7100
Facsimile: (805) 270-7589
E-mail: mbradley@bradleygrombacher.com
kgrombacher@bradleygrombacher.com
temerson@bradleygrombacher.com
- and -
Kristi D. Rothschild, Esq.
Julian Alwill, Esq.
ROTHSCHILD & ALWILL, APC
27 W. Anapamu Street, Suite 289
Santa Barbara, CA 93101
Telephone: (805) 845-1190
Facsimile: (805) 456-0132
E-mail: krothschild@kdrlawgroup.com
jalwill@kdrlawgroup.com
FUNKO INC: Kaskela Law Files Class Action Lawsuit
-------------------------------------------------
Kaskela Law LLC disclosed that a shareholder class action lawsuit
has been filed against Funko, Inc., on behalf of investors who
purchased the Company’s common stock on or after November 1,
2017.
Investors who purchased Funko’s common stock and suffered an
investment loss in excess of $50,000 are encouraged to contact
Kaskela Law LLC (D. Seamus Kaskela, Esq.) at (888) 715-1740, or
skaskela@kaskelalaw.com, to discuss their rights and recovery
options. Additional information about this shareholder action may
also be found at http://kaskelalaw.com/case/funko/.
IMPORTANT DEADLINE: Investors who purchased Funko’s common stock
on or after November 1, 2017 may, no later than December 17, 2018,
seek to be appointed as a lead plaintiff representative of the
class.
On or around November 1, 2017, Funko completed an initial public
offering ("IPO") of its stock, selling over 10 million shares of
common stock to investors at $12.00 per share. According to the
Complaint, the defendants failed to disclose, in connection with
the IPO, that: (i) Funko’s profits and growth were not as
positive as Funko represented; (ii) Funko’s business model and
customer base had not insulated it from adverse industry, sales,
and earnings trends; and (iii) as a result, defendants’
statements regarding Funko’s business, operations and prospects
were materially false and/or misleading. When the true details
entered the market, the lawsuit claims that investors suffered
damages.
Investors who purchased Funko’s common stock on or after November
1, 2017 and suffered an investment loss in excess of $50,000 are
encouraged to contact Kaskela Law LLC to discuss their legal rights
and options.
D. Seamus Kaskela, Esq.
KASKELA LAW LLC
201 King of Prussia Road
Suite 650
Radnor, PA 19087
Telephone: (484) 258-1585
(888) 715-1740
Email: skaskela@kaskelalaw.com [GN]
FUNKO INC: Rosen Law Firm Files Securities Class Action Lawsuit
---------------------------------------------------------------
Rosen Law Firm, a global investor rights law firm, disclosed it has
filed a class action lawsuit on behalf of purchasers of the
securities of Funko, Inc. (NASDAQ:FNKO) pursuant to and/or
traceable to the Registration Statement and Prospectus issued in
connection with Funko’s initial public offering on or about
November 1, 2017 (the "IPO"). The lawsuit seeks to recover damages
for Funko investors under the federal securities laws.
The lawsuit, styled as SatyanarayanaKanugonda v. Funko, Inc., et
al., Case No. 2:18-cv-00812, is pending before Chief Judge Ricardo
S. Martinez in the United States District Court for the Western
District of Washington, Seattle Division, 700 Stewart Street,
Seattle, Washington 98101.
To join the Funko class action, go to
https://www.rosenlegal.com/cases-1297.html or call Phillip Kim,
Esq. or Zachary Halper, Esq. toll-free at 866-767-3653 or email
pkim@rosenlegal.com or zhalper@rosenlegal.com for information on
the class action.
NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS
IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN
ONE. YOU MAY RETAIN COUNSEL OF YOUR CHOICE. YOU MAY ALSO REMAIN AN
ABSENT CLASS MEMBER AND DO NOTHING AT THIS POINT. AN INVESTOR’S
ABILITY TO SHARE IN ANY POTENTIAL FUTURE RECOVERY IS NOT DEPENDENT
UPON SERVING AS LEAD PLAINTIFF.
According to the lawsuit, the documents filed in connection with
the IPO contained materially false and/or misleading statements
and/or failed to disclose that: (1) Funko’s profits and growth
were not as positive as Funko represented; (2) Funko’s business
model and customer base had not insulated it from adverse industry,
sales, and earnings trends; and (3) as a result, defendants’
statements in the Registration Statement regarding Funko’s
business, operations and prospects were materially false and/or
misleading. When the true details entered the market, the lawsuit
claims that investors suffered damages.
A class action lawsuit has already been filed. If you wish to serve
as lead plaintiff, you must move the Court no later than December
17, 2018. A lead plaintiff is a representative party acting on
behalf of other class members in directing the litigation. If you
wish to join the litigation, go to
https://www.rosenlegal.com/cases-1297.html. You may also contact
Phillip Kim, Esq. or Zachary Halper, Esq. of Rosen Law Firm toll
free at 866-767-3653 or via e-mail at pkim@rosenlegal.com or
zhalper@rosenlegal.com to discuss your rights or interests
regarding this class action.
Laurence Rosen, Esq.
Phillip Kim, Esq.
Zachary Halper, Esq.
The Rosen Law Firm, P.A.
275 Madison Avenue, 34thFloor
New York, NY 10016
Telephone: (212) 686-1060
Toll Free: (866) 767-3653
Fax: (212) 202-3827
Email: lrosen@rosenlegal.com
pkim@rosenlegal.com
zhalper@rosenlegal.com [GN]
GENERAL MOTORS: Continues to Defend Economic Loss-Related Suits
---------------------------------------------------------------
General Motors Company said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 31, 2018, for the
quarterly period ended September 30, 2018, that the company
continues to defend itself from several economic-loss-related class
action suits.
The company is aware of over 100 putative class actions pending
against GM in U.S. and Canadian courts alleging that consumers who
purchased or leased vehicles manufactured by GM or Motors
Liquidation Company (formerly known as General Motors Corporation)
had been economically harmed by one or more of the 2014 recalls
and/or the underlying vehicle conditions associated with those
recalls (economic-loss cases).
In general, these economic-loss cases seek recovery for purported
compensatory damages, such as alleged benefit-of-the-bargain
damages or damages related to alleged diminution in value of the
vehicles, as well as punitive damages, injunctive relief and other
relief.
Many of the pending U.S. economic-loss claims have been transferred
to, and consolidated in, a single federal court, the U.S. District
Court for the Southern District of New York (Southern District).
These plaintiffs have asserted economic-loss claims under federal
and state laws, including claims relating to recalled vehicles
manufactured by GM and claims asserting successor liability
relating to certain recalled vehicles manufactured by Motors
Liquidation Company.
The Southern District has dismissed various of these claims,
including claims under the Racketeer Influenced and Corrupt
Organization Act, claims for recovery for alleged reduction in the
value of plaintiffs' vehicles due to damage to GM's reputation and
brand as a result of the ignition switch matter, and claims of
certain plaintiffs who purchased a vehicle before GM came into
existence in July 2009. The Southern District also dismissed
certain state law claims at issue.
In August 2017 the Southern District granted the company's motion
to dismiss the successor liability claims of plaintiffs in seven of
the sixteen states at issue on the motion and called for additional
briefing to decide whether plaintiffs' claims can proceed in the
other nine states. In December 2017 the Southern District granted
GM's motion and dismissed successor liability claims of plaintiffs
in an additional state, but found that there are genuine issues of
material fact that prevent summary judgment for GM in eight other
states.
In January 2018, GM moved for reconsideration of certain portions
of the Southern District's December 2017 summary judgment ruling.
That motion was granted in April 2018, dismissing plaintiffs'
successor liability claims in any state where New York law
applies.
In September 2018 the Southern District granted the company's
motion to dismiss claims for lost personal time (in 41 out of 47
jurisdictions) and certain unjust enrichment claims, but denied the
company's motion to dismiss plaintiffs' economic loss claims in 27
jurisdictions. Significant summary judgment, class certification,
and expert evidentiary motions remain at issue.
General Motors Company, together with its subsidiaries, designs,
builds, and sells cars, trucks, crossovers, and automobile parts
worldwide. The company operates through GM North America, GM
International, and GM Financial segments. It markets its vehicles
primarily under the Buick, Cadillac, Chevrolet, GMC, Holden,
Baojun, Jiefang, and Wuling brand names. General Motors Company was
founded in 1897 and is based in Detroit, Michigan.
GENERAL MOTORS: Supreme Court Denies Objector's Appeal
------------------------------------------------------
General Motors Company said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 31, 2018, for the
quarterly period ended September 30, 2018, that U.S. Supreme Court
subsequently denied the objector's petition seeking appellate
review.
In a putative shareholder class action filed in the United States
District Court for the Eastern District of Michigan (Eastern
District) on behalf of purchasers of the company's common stock
from November 17, 2010 to July 24, 2014, the lead plaintiff alleged
that GM and several current and former officers and employees made
material misstatements and omissions relating to problems with the
ignition switch and other matters in SEC filings and other public
statements.
In 2016 the Eastern District entered a judgment approving a
class-wide settlement of the class action for $300 million. One
shareholder filed an appeal of the decision approving the
settlement.
The United States Court of Appeals for the Sixth Circuit affirmed
the judgment approving the settlement in November 2017. The
objector subsequently filed petitions for rehearing and for en banc
review before the entire Sixth Circuit.
Both of those petitions were denied. The U.S. Supreme Court
subsequently denied the objector's petition seeking appellate
review.
General Motors Company, together with its subsidiaries, designs,
builds, and sells cars, trucks, crossovers, and automobile parts
worldwide. The company operates through GM North America, GM
International, and GM Financial segments. It markets its vehicles
primarily under the Buick, Cadillac, Chevrolet, GMC, Holden,
Baojun, Jiefang, and Wuling brand names. General Motors Company was
founded in 1897 and is based in Detroit, Michigan.
GENKI SUSHI: $4.5MM Settlement Reached in Hepatitis A Lawsuit
-------------------------------------------------------------
Hawaii News Now reports that a $4.5 million preliminary settlement
has been reached in a class-action lawsuit related to the Hepatitis
A outbreak linked to tainted scallops at Genki Sushi restaurants.
The state health department found the source of the outbreak came
from raw scallops served at Genki Sushi restaurants, but to be a
claimant in the settlement you don't need to have eaten the
scallops.
The virus was traced to a single company that supplied scallops to
Genki from the Philippines. The chain immediately closed down for
heavy cleaning and was cleared by the Health Department. 292 people
got Hep A, one person died and insurance records show 120,000
people got vaccinations as a precaution.
"The most suprising thing was how many people got shots. I had no
idea that basically a tenth of Hawaii's population could have
received shots," said Trevor Brown of Starn O'Toole Marcus and
Fisher.
Attorneys who sued Genki Sushi and its suppliers say the $4.5
million dollar settlement is not for people who got sick, but only
for the roughly 50,000 people who where potentially exposed and
then got the vaccine within two weeks.
"These are people who took that precaution when the Department of
Health annouced it and got the shot within 14 days of their
exposure to hepatitis A either through family members, eating at
Genki or eating at places where people who got sick at Genki were
working," said Brown.
Potential claimants can get $150 to $350 dollars depending on their
level of exposure. Attorneys say you don't need proof of when or
where you ate. You just need to sign an affidavit, provide
insurance information and evidence of getting the vaccine if you
paid out of pocket.
"That was our goal was to make it simple for people that had to go
through the inconvenience and time and expense of getting a shot,"
said Brown.
As for the roughly 80 individual hepatitis A claims where people
got sick, attorneys say most of them have been settled out of
court. Genki Sushi had no comment.
The deadline to file a claim on HawaiiHepA.com is November
29th.[GN]
GENWORTH FINANCIAL: Faces Burkhart Class Action in Delaware
-----------------------------------------------------------
Genworth Financial, Inc. said in its Form 10-Q Report filed with
the Securities and Exchange Commission on October 31, 2018, for the
quarterly period ended September 30, 2018, that the company faces a
putative class action suit entitled, Richard F. Burkhart, William
E. Kelly, Richard S. Lavery, Thomas R. Pratt, Gerald Green,
individually and on behalf of all other persons similarly situated
v. Genworth et al.
In September 2018, the company was named as a defendant in a
putative class action lawsuit pending in the Court of Chancery of
the State of Delaware captioned Richard F. Burkhart, William E.
Kelly, Richard S. Lavery, Thomas R. Pratt, Gerald Green,
individually and on behalf of all other persons similarly situated
v. Genworth et al.
The Plaintiffs are alleging that Genworth Life Insurance Company
("GLIC"), the company's indirect wholly-owned subsidiary, failed to
maintain adequate capital capable of meeting its obligations to
GLIC policyholders and agents. The complaint alleges causes of
action for intentional fraudulent transfer and constructive
fraudulent transfer, and seeks injunctive relief.
Genworth Financial said, "We intend to vigorously defend this
action."
Genworth Financial, Inc. provides insurance and homeownership
solutions in the United States and internationally. It operates
through five segments: U.S. Mortgage Insurance, Canada Mortgage
Insurance, Australia Mortgage Insurance, U.S. Life Insurance, and
Runoff. Genworth Financial, Inc. was founded in 2003 and is
headquartered in Richmond, Virginia.
GOLDMAN SACHS: Wants to Weed Out Women in Class-Action Suit
-----------------------------------------------------------
Kevin Dugan, writing for the New York Post, reports that Goldman
Sachs is trying to weed out women who are participating in a
class-action lawsuit against the Wall Street bank alleging that
it's a "boys club" ridden with sexual discrimination.
Goldman claims that some of the unnamed women who are suing the
bank, who claim they endured years of discrimination and
underpayment, may have signed arbitration agreements, according to
filings late October 17 in Manhattan federal court.
Goldman argued in the court filings that it has the right to figure
out if they do and force them to honor their agreements -- a
process that could drag out the 13-year-old court battle for years
to come.
"Should these class members refuse to honor their agreements to
arbitrate, Goldman Sachs will move to compel arbitration," the bank
said.
By including them in the class, the court would run afoul of
federal arbitration laws, and the court would have to weed them out
later anyway, Goldman argued.
The filing comes about a month after the Manhattan federal appeals
court ruled that the case, filed by four former female bankers, can
proceed.
Lawyers for the women claim in the October 17 filing that the bank
missed its chance to bring up arbitration agreements when
discussing the class certification.
"Plaintiffs have relied on the pleadings of the last eight years to
push their case, only to see Goldman now decide it would prefer a
new venue when the court’s decision did not go its way," lawyers
for the women wrote.
The back-and-forth between the bank and plaintiffs threatens to
delay any trial until 2019 or 2020, according to court documents.
"Goldman brazenly suggests that it will take discovery of each
woman who signed arbitration agreements -- essentially threatening
its current and former employees with individualized discovery that
is burdensome," lawyers for the plaintiffs, led by Adam T. Klein,
Esq. -- atk@outtengolden.com -- wrote in the filing.
The plaintiffs, led by former vice president Cristina Chen-Oster,
first filed a complaint with the Equal Employment Opportunity
Commission in 2005. A lawsuit was filed in Manhattan federal court
in 2010.
Michael DuVally, a spokesman for Goldman Sachs, referred to
language in the legal filing when asked for comment.[GN]
GOOGLE LLC: Singh Appeals N.D. California Ruling to Ninth Circuit
-----------------------------------------------------------------
Plaintiff Gurminder Singh filed an appeal from a court ruling in
the lawsuit titled Gurminder Singh v. Google LLC, Case No.
5:16-cv-03734-BLF, in the U.S. District Court for the Northern
District of California, San Jose.
As previously reported in the Class Action Reporter, the lawsuit
arises from Google's alleged conduct with respect to
"pay-per-click" advertisements on its online advertising platform,
AdWords.
Mr. Singh, a small business owner, signed up for AdWords in January
2008 and now manages three AdWords accounts. On behalf of himself
and others similarly situated, Mr. Singh alleges that Google makes
false and misleading statements to potential advertisers concerning
the extent of invalid or fraudulent clicks on the AdWords platform,
and then ultimately charges its advertisers for such clicks that
are not generated by real users at a much higher rate than
advertisers were led to believe.
The appellate case is captioned as Gurminder Singh v. Google LLC,
Case No. 18-17035, in the United States Court of Appeals for the
Ninth Circuit.
The briefing schedule in the Appellate Case is set as follows:
-- Transcript must be ordered by November 19, 2018;
-- Transcript is due on December 17, 2018;
-- Appellant Gurminder Singh's opening brief is due on
January 28, 2019;
-- Appellee Google LLC's answering brief is due on
February 25, 2019; and
-- Appellant's optional reply brief is due 21 days after
service of the answering brief.[BN]
Plaintiff-Appellant GURMINDER SINGH, individually and on behalf of
others similarly situated, is represented by:
Kolin C. Tang, Esq.
SHEPHERD FINKELMAN MILLER & SHAH LLP
201 Filbert Street, Suite 201
San Francisco, CA 94133
Telephone: (415) 429-5272
E-mail: ktang@sfmslaw.com
Defendant-Appellee GOOGLE LLC is represented by:
Brian M. Willen, Esq.
WILSON SONSINI GOODRICH & ROSATI
1301 Avenue of the Americas, 40th Floor
New York, NY 10019
Telephone: (212) 999-5800
E-mail: bwillen@wsgr.com
- and -
Dale Bish, Esq.
WILSON SONSINI GOODRICH & ROSATI
650 Page Mill Road
Palo Alto, CA 94304-1050
Telephone: (650) 849-3467
E-mail: DBish@wsgr.com
- and -
Sonal Mittal, Esq.
WILSON SONSINI GOODRICH & ROSATI
One Market Plaza
Spear Tower
San Francisco, CA 94105
Telephone: (415) 947-2182
E-mail: smittal@wsgr.com
GROUPON INC: Bid to Remand Dancel Suit to State Court Denied
------------------------------------------------------------
Judge Ronald A. Guzman of the U.S. District Court for the Northern
District of Illinois, Eastern Division, denied the Plaintiff's
motion to remand the case, Christine Dancel, individually and on
behalf of others similarly situated, Plaintiff, v. Groupon, Inc.,
Defendant, Case No. 18 C 2027 (N.D. Ill.), to the Circuit Court of
Cook County.
The Plaintiff, individually and on behalf of others similarly
situated, sued Groupon in state court, alleging that by using
individuals' photographs and likenesses as posted on Instagram
without their written consent for its own material gain, Groupon
has violated the Illinois Right of Publicity Act, 765 ILCS 1075/1
et seq. ("IRPA"). Groupon removed the case to the Court after it
was pending in state court for approximately two years.
Among several motions currently pending is the Plaintiff's motion
to remand the case to the Circuit Court of Cook County, asserting
in part that Groupon has not demonstrated that the Plaintiff has
Article III standing. While the parties dispute whether either of
them actually challenges the Plaintiff's standing-based on whether
she has suffered a sufficiently "concrete and particularized
injury" under Spokeo, Inc. v. Robins, Judge Guzman directed the
parties to brief the issue further given the Court's responsibility
to confirm that it has subject-matter jurisdiction over the case.
He concluded that Groupon has shown that the Plaintiff alleges a
concrete and particularized injury at this stage of the
litigation.
The Plaintiff also moves to remand the case to state court on the
ground that Groupon's removal was untimely. The class-action
complaint was originally filed in state court on Feb. 5, 2016,
seeking relief on behalf of Illinois residents who had their
Instagram images used by Groupon without their consent. On March
16, 2018, the Plaintiff filed an amended motion for class
certification, seeking certification of two classes: the Instagram
Class, comprising all persons who maintained an Instagram account
and whose photograph was used by Groupon for an Illinois business;
and the Personal Photo Subclass, comprising members of the
Instagram Class whose likeness appeared in any photograph acquired
and used by Instagram. Within 30 days of the amended motion for
class certification being filed, Groupon removed the action
pursuant to the Class Action Fairness Act ("CAFA").
Having reviewed the parties' briefs and conducted its own research
on this issue, the Judge concludes that additional briefing from
the parties will be helpful in resolving the remainder of the
Plaintiff's motion to remand. He directed the Plaintiff to file a
brief within 14 days of the date of entry of the order, addressing
the following: (1) what, if any, is the burden on a removing
Defendant to ascertain the citizenship of the Plaintiffs generally,
and more particularly, putative class members, both in an initial
pleading and when subsequent pleadings, motions, and papers are
filed; (2) other than the pleadings and interrogatory responses
pointed out by the Plaintiff as purportedly putting Groupon on
notice that minimal diversity existed under CAFA, is there any
other information provided in discovery (documents, deposition
testimony, etc.) or other correspondence that may have put Groupon
on notice that either the initial class included non-Illinois
citizens or that Plaintiff had a specific and concrete intention to
amend its class definition; and (3) are either the home-state or
local-controversy exceptions to CAFA implicated in the case, and
how, if so.
Judge Guzman acknowledged that the parties have covered some of
these issues to varying degrees, but directed the parties to focus
their additional briefing on CAFA cases (to the extent possible),
and to apply the law to the specific facts of the case. In the
event case law is lacking in the Seventh Circuit, he directed the
parties to expand their discussion to include other jurisdictions,
particularly if cases from other circuits are more on point with
the facts of this case.
Moreover, the parties are not restricted to the three issues
identified by the Court if they believe other issues should be
considered in resolving the remainder of the motion to remand.
Groupon will file a response within 14 days of the Plaintiff's
supplemental filing. No reply will be filed unless directed by the
Court.
A full-text copy of the Court's Oct. 10, 2018 Memorandum Opinion
and Order is available at https://is.gd/NPQfXZ from Leagle.com.
Christine Dancel, individually and on behalf of all others similary
situated, Plaintiff, represented by Rafey S. Balabanian --
rbalabanian@edelson.com -- Edelson PC, Ari Jonathan Scharg --
ascharg@edelson.com -- Edelson P.C., Benjamin Harris Richman,
Edelson PC, Benjamin Scott Thomassen, Edelson P.C. & Jay Edelson --
jedelson@edelson.com -- Edelson PC.
Groupon, Inc., a Delaware Corporation, Defendant, represented by
Brian E. Cohen -- BCohen@novackmacey.com -- Novack and Macey LLP,
Christopher S. Moore -- cmoore@novackmacey.com -- Novack and Macey,
LLP & Eric Neal Macey -- emacey@novackmacey.com -- Novack and
Macey, LLP.
HASBRO INC: Vincent Wong Files Securities Class Action
------------------------------------------------------
The Law Offices of Vincent Wong disclosed that a class action has
commenced on behalf of shareholders of Hasbro, Inc. If you
suffered a loss you have until the lead plaintiff deadline to
request that the court appoint you as lead plaintiff.
Hasbro, Inc. (NASDAQGS: HAS)
Lead Plaintiff Deadline: November 27, 2018
Class Period: April 24, 2017 and October 23, 2017
Get additional information about HAS:
http://www.wongesq.com/pslra-1/hasbro-inc-loss-submission-form?wire=3
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]
HEALTH CARE SERVICE: Seeks Final OK of $3.75M ERISA Suit Deal
-------------------------------------------------------------
In the case, JOHN DOE, a minor, by his next friend and parent,
LANDIS SEGER; and LANDIS SEGER, on their own behalf and on behalf
of all others similarly situated, Plaintiffs, v. HEALTH CARE
SERVICE CORPORATION, Defendant, Case No. 1:16-cv-04571 (N.D. Ill.),
the Plaintiffs asked Judge Virginia M. Kendall of the U.S. District
Court for the Northern District of Illinois, Eastern Division, to
approve their Motion for Final Approval and Judgment Approving
Settlement and Dismissing Action With Prejudice.
Plaintiffs Landis Seger and John Doe, on behalf of themselves and
all persons similarly situated, and on behalf of the provisionally
certified class, submit their memorandum in support of their Motion
for Final Approval. The Settlement will provide significant
monetary relief to participants in ERISA health plans administered
by Defendant Health Care Services Corp. ("HCSC"), whose claims for
insurance coverage for mental health treatment in residential
treatment centers ("RTCs") were denied because HCSC determined that
the service(s) were not shown to be medically necessary.
The Plaintiffs claim that HCSC, through its adoption and use of the
medical necessity criteria in the MCG Behavioral Health Care
Guidelines ("MCG Guidelines"), violated fiduciary duties under
Employment Retirement Income Security Act of 1974 ("ERISA"),
including duties to comply with the Paul Wellstone and Pete
Domenici Mental Health Parity and Addiction Equity Act of 2008,
incorporated into ERISA at 29 U.S.C. Section 1185a, and Section
2706 of the Affordable Care Act.
The Plaintiffs asserted claims under ERISA Section 502(a)(1)(B), 29
U.S.C. Section 1132, alleging that when HCSC denied coverage based
on the MCG Guidelines, it failed to comply with the Parity Act
along with its fiduciary duties under ERISA by applying medical
necessity criteria that are inconsistent with generally accepted
standards of care (and consequently inconsistent with the terms of
the plans HCSC administered) and/or more restrictive than the
criteria it applies when administering claims for medical and
surgical benefits.
The parties engaged in discussions of a potential settlement
framework over the course of many months and reached an agreement
in principle based on the establishment of a common settlement fund
to resolve claims denied under the 19th and earlier editions of the
MCG Guidelines. The parties executed the Settlement Agreement on
July 9, 2018.
The Settlement provides for monetary payments to Class Members
whose RTC claims were denied as not medically necessary during the
period when HCSC utilized the MCG Guidelines, up to and including
the 19th edition of the MCG Guidelines. As part of the Settlement,
HCSC agreed to create a common fund of $3.75 million. Under the
Plan of Allocation, each Settlement Class Member will receive a
proportionate share of the fund after agreed deductions, based
principally on the number of days for which he or she (or a covered
beneficiary, see supra note 3) received mental health residential
treatment during the Class Period.
The Plaintiffs moved for certification of the proposed class and
preliminary approval of the Settlement on July 13, 2018. On July
26, 2018, the Court entered an order preliminarily certifying the
settlement class under Federal Rule of Civil Procedure 23 (a),
approving the Settlement Agreement and the notice of settlement,
and setting the Fairness Hearing for Oct. 30, 2018.
On July 26, 2018, the Court preliminarily approved the Settlement
Agreement (including the Notice Plan) and provisionally approved
the Settlement Class. In the Preliminary Approval Order, the Court
approved the appointment of Dahl Administration, LLC as the
Settlement Administrator.
In accordance with the Settlement Agreement, HCSC made an initial
deposit of $25,000 into the Settlement Fund Account on Aug. 1,
2018. This First Deposit covered costs associated with
implementing the Notice Plan and the Settlement Fund Account, and
related fees and costs incurred by Dahl in administering the
Settlement prior to final approval. The total cost of Dahl's
settlement administration services, including distribution of
payments to the Settlement Class Members, is expected to be
approximately $17,083. HCSC will fund the balance of the
Settlement Fund (the Second Deposit) within 10 business days after
Final Judgment. The Settlement Fund will then be used to fund
payments to Class Members according to the Plan of Allocation,
after payment of the remaining administration costs, attorneys'
fees and expenses, and Service Awards in the amounts approved by
the Court.
The Plaintiffs filed their Motion for Attorneys' Fees, Expenses,
and Incentive Awards and accompanying papers on Aug. 27, 2018, in
accordance with the schedule in the Preliminary Approval Order. As
described in their memorandum in support of the fee petition, the
Plaintiffs ask that the Court award attorneys' fees and costs to
the Class Counsel equal to 30% of the settlement amount, or $1.125
million. They request that the Court confirms its preliminary
approval of an incentive award totaling $17,000 for the two named
Plaintiffs.
Thereafter, the Plaintiffs mailed notice directly to the Settlement
Class Members, and created a Settlement website that provided
additional resources to help Class Members evaluate the Settlement
and submit claims. Eight of the 1,281 Settlement Class Members, or
less than 1%, excluded themselves from the Settlement. None of the
Settlement Class Members objected to the Settlement or provided a
notice of intent to appear at the Fairness Hearing scheduled for
Oct. 30, 2018. One of the Settlement Class Representatives is
expected to attend the Fairness Hearing.
In short, the response of the Settlement Class, in addition to the
significant monetary payments that the Settlement will provide,
overwhelmingly supports final approval of the Settlement as fair,
reasonable, and adequate under Rule 23 of the Federal Rules of
Civil Procedure.
For the foregoing reasons, the Plaintiffs respectfully request that
the Court: (1) grants final certification of the Settlement Class
to allow implementation of the Settlement; (2) grants final
approval of the Parties' Settlement Agreement and all of the terms
and conditions contained therein and in all exhibits thereto; (3)
and dismisses the matter with prejudice.
A full-text copy of the Motion Oct. 9, 2018 Order is available at
https://is.gd/9rXonw from Leagle.com.
John Doe, a minor, by his next friend and parent & Landis Segar, on
their own behalf and on behalf of all others similarly situated,
Plaintiffs, represented by Daniel P. Moylan --
dmoylan@zuckerman.com -- Zuckerman Spaeder LLP, pro hac vice, Adam
Abelson -- aabelson@zuckerman.com -- Zuckerman Spaeder LLP, pro hac
vice, Caroline Elizabeth Reynolds -- creynolds@zuckerman.com --
Zuckerman Spaeder Llp, pro hac vice, D. Brian Hufford --
dbhufford@zuckerman.com -- Zuckerman Spaeder LLP, pro hac vice,
David Paul Baltmanis -- DBaltmanis@LawMBG.com -- Miner, Barnhill &
Galland P.C., George Freeman Galland, Jr. -- GGalland@LawMBG.com --
Miner Barnhill & Galland, P.C., Jason S. Cowart --
jcowart@zuckerman.com -- Zuckerman Spaeder LLP, Martin S. Himeles,
Jr. -- mhimeles@zuckerman.com -- Zuckerman Spaeder LLP, pro hac
vice & Meiram Bendat, Psych-Appeal, Inc., pro hac vice.
Health Care Service Corporation, Defendant, represented by Helen E.
Witt -- helen.witt@kirkland.com -- Kirkland & Ellis LLP, Brian
Patrick Kavanaugh -- brian.kavanaugh@kirkland.com -- Kirkland &
Ellis LLP, Catie Ventura, Kirkland & Ellis LLP & Devon McKechan
Largio -- devon.largio@kirkland.com -- Kirkland & Ellis LLP.
HENDERSON KITCHEN: Claims in Tong's FLSA Suit Narrowed
------------------------------------------------------
In the case, RUI TONG, WEIJIAN TANG, YA-TANG CHI a/k/a/ Tom Chi,
CHUAN GENG, KUN YANG, and JUNYI XIE, on behalf of themselves and
others similarly situated, v. HENDERSON KITCHEN INC. d/b/a Pinwei
Restaurant, CHAO HSIUNG KUO a/k/a Gary Kuo, and YENG-LUNG KUO,
Civil Action No. 17-1073 (E.D. Pa.), Judge R. Barclay Surrick of
the U.S. District Court for the Eastern District of Pennsylvania
granted in part and denied in part the Defendants' Motion to
Dismiss Counts I, II, V, VI, and VII of Plaintiffs' Amended
Complaint Pursuant to Fed. R. Civ. P. 12(b)(6).
Plaintiffs Rui Tong, Weijian Tang, Ya-Tang Chi, Chuan Geng, Kun
Yang, and Junyi Xie filed the putative collective and class action
against Defendants Henderson Kitchen Inc., doing business as Pinwei
Restaurant, Chao Hsiung Kuo, and Yeng-Lung Kuo, alleging that
Defendants' employee compensation practices violate the Fair Labor
Standards Act ("FLSA"); the Pennsylvania Minimum Wage Act ("PMWA");
and the Pennsylvania Wage Payment and Collection Law ("WPCL").
The Plaintiffs and the putative collective class they seek to
represent are employees and/or former employees of the Pinwei
Restaurant in King of Prussia, Pennsylvania. They allege that
Defendants Chao Hsiung Kuo and Yeng-Lung Kuo are the "boss" and
"lady boss," respectively, of Pinwei.
The Amended Complaint also makes a number of allegations both
individually and collectively. The Plaintiffs allege that the
Defendants failed to pay Geng, Xie, and similarly situated
employees the statutory minimum wage for each hour worked. Each of
the waiter-Plaintiffs alleges that the Defendants illegally
retained their tips. The waiter-Plaintiffs also allege that they
were required to perform non-tipped work for over 20% of the
workday, including custodial and delivery duties. The Plaintiffs
allege that their tips were used by the Defendants to pay
non-tipped employees, including hosts and cashiers.
All Plaintiffs allege that they were not informed of their hourly
pay rate, any tip deductions the Defendants were taking from them,
and whether the Defendants were taking a tip credit to go towards
satisfying the minimum wage requirement. The Plaintiffs also
allege that the Defendants intentionally failed to keep accurate
records of their hours and wages, intentionally failed to provide
them with any earnings statements, and intentionally denied them
any overtime pay.
The Amended Complaint contains seven counts: failure to pay the
statutory minimum wage in violation of the FLSA and PMWA with
respect to Plaintiffs Geng and Xie and the putative
collective/class (Counts I, II); violations of the FLSA and PMWA
overtime provisions with respect to all named Plaintiffs and the
putative collective/class (Counts III, IV); illegal retention of
tips in violation of the FLSA and PMWA with respect to the
waiter-Plaintiffs and the putative collective/class (Counts V, VI);
and failure to pay all wages owed in violation of the WPCL with
respect to all the named Plaintiffs and the putative
collective/class (Count VII).
The Plaintiffs filed their original Complaint on March 10, 2017.
The Defendants filed a Motion to Dismiss on April 11, 2017. The
Plaintiffs filed an Amended Complaint on May 2, 2017. The
Defendants filed the instant Motion to Dismiss on May 16, 2017.
The Plaintiffs filed a Response in Opposition on May 30, 2017. The
Defendants filed a Reply on June 12, 2017.
With the exception of the minimum wage claims made by Plaintiff
Geng, Judge Surrick granted without prejudice the Defendants'
Motion to Dismiss as to the Plaintiffs' minimum wage claims
asserted in Counts I and II. He denied the Defendants' Motion as
to the Plaintiffs' claims of illegal tip retention asserted in
Counts V and VI. He granted the Motion without prejudice as to the
Plaintiffs' WPCL claims asserted in Count VII.
The Judge finds that the Plaintiffs have made sufficient
allegations to state a claim for illegal retention of tips under
the FLSA/PMWA provisions. He finds the Defendants' argument about
the hourly rate unavailing. The Plaintiffs explicitly allege that
they were kept in the dark about the tip credit and tip amounts, so
they would not be able to allege with any specificity at this time
whether any portion of their income was derived from tips. The
Judge reiterates that the FLSA places the onus of record keeping on
employers.
A full-text copy of the Court's Oct. 12, 2018 Memorandum is
available at https://is.gd/4tM0rE from Leagle.com.
RUI TONG, WEIJIAN TANG, YA-TANG CHI, also known as TOM CHI, CHUAN
GENG, KUN YANG & JUNYI XIE, ON BEHALF OF THEMSELVES AND OTHERS
SIMILARLY SITUATED, Plaintiffs, represented by PHILIP A. DOWNEY --
downeyjustice@gmail.com -- THE DOWNEY LAW FIRM & JOHN TROY --
johntroy@troypllc.com -- TROY LAW, PLLC.
HENDERSON KITCHEN INC., doing business as PINWEI RESTAURANT, CHAO
HSIUNG KUO, also known as GARY KUO & YENG-LUNG KUO, Defendants,
represented by VINCENT J. PENTIMA, PENTIMA LAW FIRM.
HUAZHU GROUP: Vincent Wong Files Securities Class Action
--------------------------------------------------------
The Law Offices of Vincent Wong disclosed that a class action has
commenced on behalf of shareholders of Huazhu Group Limited. If
you suffered a loss you have until the lead plaintiff deadline to
request that the court appoint you as lead plaintiff.
Huazhu Group Limited (NASDAQ: HTHT)
Lead Plaintiff Deadline: December 7, 2018
Class Period: May 14, 2018 and August 28, 2018
Get additional information about HTHT:
http://www.wongesq.com/pslra-1/huazhu-group-limited-loss-submission-form?wire=3
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]
HYATT HOTELS: 3d Cir. Affirms Summary Judgment in Livi Labor Suit
-----------------------------------------------------------------
In the case, NANCY LIVI, on behalf of herself and all others
similarly situated, Appellant, v. HYATT HOTELS CORPORATION; HYATT
CORPORATION, DBA Hyatt At The Bellevue; BELLEVUE INC.; BELLEVUE
ASSOCIATES, Case No. 17-3646 (3d Cir.), Judge David Brookman Smith
of the U.S. Court of Appeals for the Third Circuit affirmed the
District Court's award of summary judgment to Hyatt Hotels Corp.,
et al.
Livi was employed as a banquet server at the Bellevue, a Hyatt
hotel in Philadelphia, from 1986 until 2014. In 2015, she filed a
class action complaint in the U.S. District Court for the Eastern
District of Pennsylvania on behalf of herself and those similarly
situated in which she alleged that: (1) she often worked more than
40 hours per week but was never paid overtime (one-and-a-half times
her hourly wage) for time in excess of 40 hours; and (2) she was
entitled to a contractual service charge of either 20% or 21% of
the banquet cost, but Hyatt always retained a portion of the
service charge for itself and did not pay the entirety to the
banquet servers.
Based upon these allegations, Livi brought claims for the unpaid
wages and service charges pursuant to the Pennsylvania Minimum Wage
Act ("PMWA"), the Pennsylvania Wage Payment and Collection Law
("WPCL"), and on grounds of unjust enrichment.
In a thoughtful opinion, the District Court awarded summary
judgment to Hyatt on all claims. Livi timely appealed.
Livi argues that Hyatt is not exempt from the overtime requirement
because the service charges do not represent commissions on goods
or services" under 34 Pa. Code Section 231.43(f). Judge Smith
finds that the District Court appropriately awarded summary
judgment to Hyatt on this claim. Looking to the FLSA's overtime
exemption, he agrees with the District Court that banquet service
charges represent commissions. In addition, the Department of
Labor has issued guidance to this effect, and Livi has not
identified a single case adopting a contrary interpretation.
Livi next contends that the banquet service charges are gratuities,
and that the PMWA mandates that gratuities are the property of the
employee. The Judge finds that it is undisputed that Livi's hourly
wage was well above the minimum wage and Hyatt never invoked the
tip credit provision. Livi presents no basis for the Court to
conclude that the provision extends to her circumstances.
Accordingly, the District Court correctly granted summary judgment
to Hyatt on this claim.
Finally, Livi contends she is entitled to unpaid overtime and
additional service charge payments on two additional theories: (1)
as a third-party beneficiary to Hyatt's banquet contracts, which
she claims entitles her to pursue a claim for the additional
portion of the service charge under the WPCL; and (2) on a theory
of unjust enrichment. The District Court disposed of both claims
in Hyatt's favor. The Judge agrees, and hasnothing to add to the
District Court's analysis.
In sum, Judge Smith concludes that Livi has not identified an
unsettled issue of Pennsylvania law of sufficient import to warrant
certification to the Supreme Court of Pennsylvania. He therefore
declined to certify a question to that Court. He affirmed the
grant of summary judgment to Hyatt for substantially the same
reasons set forth in the District Court's opinion.
A full-text copy of the Court's Oct. 12, 2018 Opinion is available
at https://is.gd/37wIOH from Leagle.com.
Noah I. Axler -- naxler@axgolaw.com -- [ARGUED], Marc A. Goldich --
mgoldich@axgolaw.com -- Axler Goldich, 1520 Locust Street, Suite
301, Philadelphia, PA 19102, Counsel for Appellant.
Noah A. Finkel -- nfinkel@seyfarth.com -- [ARGUED], Cheryl A. Luce
-- cluce@seyfarth.com -- Seyfarth Shaw, 233 South Wacker Drive,
Suite 8000, Chicago, IL 60606, Counsel for Appellees.
HYATT HOTELS: Continues to Defend Illinois Class Suit
-----------------------------------------------------
Hyatt Hotels Corporation said in its Form 10-Q Report filed with
the Securities and Exchange Commission on October 31, 2018, for the
quarterly period ended September 30, 2018, that the company
continues to defend itself from a putative class action suit filed
in Illinois.
In March 2018, a putative class action was filed against the
Company and several other hotel companies in federal district court
in Illinois seeking an unspecified amount of damages and equitable
relief for an alleged violation of the federal antitrust laws. The
Company disputes the allegations and will defend its interests
vigorously.
Hyatt Hotels said, "We currently do not believe the ultimate
outcome of this litigation will have a material effect on our
consolidated financial position, results of operation, or
liquidity."
No further updates were provided in the Company's SEC report.
Hyatt Hotels Corporation, a hospitality company, develops, owns,
operates, manages, franchises, licenses, or provides services to
hotels, resorts, residential, and other properties. It operates in
four segments: Owned and Leased Hotels, Americas Management and
Franchising, ASPAC Management and Franchising, and EAME/SW Asia
Management and Franchising. Hyatt Hotels Corporation was founded in
1957 and is headquartered in Chicago, Illinois.
KRAFT HEINZ: Class Certification Bid in Vazquez Suit Partly Granted
-------------------------------------------------------------------
In the case, ENRIQUE VAZQUEZ, SERGIO ALFONSO LOPEZ, and MARIA
VIVEROS, individually and on behalf of themselves and all others
similarly situated, Plaintiffs, v. KRAFT HEINZ FOODS COMPANY,
Defendant, Case No. 16-cv-2749-WQH-BLM (S.D. Cal.), Judge William
Q. Hayes of the U.S. District Court for the Southern District of
California (i) granted in part and denied in part the named
Plaintiffs' Motion for Class Certification, and (ii) denied their
Motion to Disqualify Defense Counsel Ford & Harrison LLP.
On May 9, 2017, the named Plaintiffs filed the Consolidated Class
Action Complaint ("CCAC") against the Defendant. The CCAC brings
claims for (1) failure to pay overtime wages, (2) minimum wage
violations, (3) meal period violations, (4) rest period violations,
(5) wage statement violations, (6) waiting time penalties, and (7)
unfair competition.
During Plaintiff Lopez's and Plaintiff Vasquez's employment with
the Defendants, they routinely worked in excess of eight hours per
workday and/or 40 hours per workweek, but did not receive overtime
compensation equal to one and one half times their regular rate of
pay for all overtime hours worked. Specifically, the Defendants
failed to properly calculate the Plaintiffs' regular rate of pay
for overtime purposes.
As a result of the Defendants' failure to pay all overtime wages,
minimum wages, as well as meal and rest period premium wages,
Defendants maintained inaccurate payroll records and issued
inaccurate wage statements to the Plaintiffs. As a further result
of te Defendants' failure to pay all overtime wages, minimum wages,
and meal and rest period premium wages, the Defendants failed to
pay all wages owed to the Plaintiffs upon their separation of
employment from them.
On March 16, 2018, the Plaintiffs filed the Motion for Class
Certification and the Compendium of Evidence in Support of
Plaintiffs' Motion for Class Certification. They seek to certify
11 classes of Kraft Heinz Foods Co. ("KHFC") employees based upon
allegations that certain employment policies and procedures
resulted in underpayment of wages. On April 6, 2018, KHFC filed an
Opposition to the Motion for Class Certification and a Compendium
of Employee Declarations.
The proposed classes 1a and 2a are defined as all current and
former non-exempt production employees of the Defendant's Legacy
Heinz locations, whose timekeeping records reflect a 30 minute
deduction of time worked for shifts worked in excess of 6 hours
where no meal period is reflected in the time punch records, during
the time period Sept. 8, 2012 to the present ("Automatic Deduction
Classes").
The Proposed classes 1b and 2b are defined as all current and
former non-exempt production employees of Defendant's Legacy Heinz
locations, whose timekeeping records include a manual edit to
include both a punch-out record and punch-in record for a purported
meal period (accompanied by the following notations: (i) O:
Punch-Forgot to Punch Out-Lunch and I: Punch-Forgot to Punch
In-Lunch; or (ii) O: Punch-Forgot to Punch Out and I: Punch-Forgot
to Punch In), during the time period Sept. 8, 2012 to the present.
The proposed class 1c is defined as all current and former
non-exempt production employees of Defendant's Legacy Heinz
locations whose timekeeping records reflect a deduction of time
from the employee's timekeeping records, accompanied by any of the
following notations: (i) UnApproved — Late Out; (ii) UnApproved
— Late Out — OT; (iii) UnApproved — Early In; or (iv)
UnApproved — Early In — OT, during the time period Sept. 8,
2012 to the present.
The proposed class 1d is defined as all current and former
non-exempt production employees at the Defendant's California
locations who were required to don protective gear prior to
clocking in for the scheduled start of their shift, during the time
period Sept. 8, 2012 to the present ("Pre-Shift Donning Class").
The proposed class 2c is defined as all current and former
non-exempt production employees of the Defendant's San Diego
location whose timekeeping records reflect a meal period commencing
after the employee had worked for 5 hours or more, during the time
period Sept. 8, 2012 to the present ("Late Meal Period Class").
The proposed class 3a is defined as a]ll current and former
non-exempt production employees of the Defendant's California
locations, who have worked a shift greater than 3.5 hours, during
the time period Sept. 8, 2012 to the present ("Rest Period
Equipment Class").
The proposed class 4 is defined as all members of Class 1a, 1b, 1c,
1d, 2a, 2b, 2c, 3a, and/or 3b, who meet the criteria for class
membership for the time period Sept. 8, 2015 to the present, and
who also received a wage statement from the Defendant during this
same time period ("Wage Statement Class").
On March 19, 2018, the Plaintiffs filed a Motion to Disqualify. On
April 9, 2018, KHFC filed an Opposition to the Plaintiffs' Motion
to Disqualify. On April 26, 2018, the Plaintiffs filed a Reply in
Support of the Motion to Disqualify.
On Aug. 8, 2018, the Court heard oral argument on the Plantiffs'
Motions.
Judge Hayes finds that finds that all the proposed classes meet the
numerosity, typicality, and adequacy requirements of Rule 23(a).
He finds that the requirements of Rule 23(a) and Rule 23(b)(3) are
met for the class 4 and class 5 as follows:
1. All members of Class 1a, 1c, 2a, and/or 2c, who meet the
criteria for class membership for the time period Sept. 8, 2015 to
the present, and who also received a wage statement from the
Defendant during this same time period.
2. All members of Class 1a, 1c, 2a, and/or 2c, who have
separated their employment from the Defendant during the time
period Sept. 8, 2013 to the present.
As to their Motion to Disqualify, the Judge finds that the
Plaintiffs have not demonstrated that Ford & Harrison's
representation of Jose and Bertha at their depositions so infects
the litigation that it impacts the Plaintiffs' interest in a just
and lawful determination of their claims. Accordingly, he will
deny the Plaintiffs' Motion for Disqualification.
For these reasons, Judge Hayes granted the Plaintiffs' Motion for
Class Certification as to Class 1a, 2a, 1c, 2c, Class 4 and Class
5, and otherwise denied. The Plaintiff will prepare a proposed
order, serve the proposed order on the Defendant, and submit the
order to the Court. The Judge denied the Plaintiffs' Motion to
Disqualify Defense Counsel Ford & Harrison LLP.
A full-text copy of the Court's Oct. 9, 2018 Order is available at
https://is.gd/3OrRru from Leagle.com.
Enrique Vazquez, individually and on behalf of himself and others
similarly situated, Plaintiff, represented by Marta Manus, Cohelan
Khoury & Singer, Michael D. Singer -- msinger@ckslaw.com --
Cohelan, Khoury & Singer & Paul K. Haines --
phaines@haineslawgroup.com -- Haines Law Group, APC.
Sergio Alfonzo Lopez, as an individual and on behalf of all others
similarly situated, Plaintiff, represented by Paul K. Haines,
Haines Law Group, APC, Sean M. Blakely, Haines Law Group, APC &
Tuvia Korobkin -- tkorobkin@haineslawgroup.com -- Haines Law Group,
APC.
Maria Viveros, individually and on behalf of himself and others
similarly situated, Plaintiff, represented by Paul K. Haines,
Haines Law Group, APC.
Kraft Heinz Foods Company, a Pennsylvania Corporation, Defendant,
represented by Daniel B. Chammas -- dchammas@venable.com -- Ford
& Harrison LLP, Alexandria Marie Witte -- awitte@fordharrison.com
-- Ford & Harrison LLP & David Lishian Cheng --
cheng@fordharrison.com -- Ford & Harrison LLP.
LIQUIDITY SERVICES: $17MM Howard Suit Settlement Has Final Approval
-------------------------------------------------------------------
In the case, LEONARD HOWARD, individually and on behalf of all
others similarly situated, Plaintiff, v. LIQUIDITY SERVICES INC.,
et al., Defendants, Civil Action No. 14-1183 (BAH) (D. D.C.), Judge
Beryl A. Howell of the U.S. District Court for the District of
Columbia granted both (i) the Unopposed Motion for Final Approval
of Class Action Settlement filed by the Class Representatives
Caisse de dépôt et placement du Québec and the City of Newport
News Employees' Retirement Fund; and (ii) Class Counsel Labaton
Sucharow LLP and Spector Roseman & Kodroff, P.C.'s Motion for an
Award of Attorneys' Fees and Payment of Litigation Expenses.
The Defendant provides online auction marketplaces for surplus and
salvage assets -- also known as a reverse supply chain -- for which
service the company retains a percentage of the sale proceeds. In
their complaint, the Class Representatives allege that LSI and the
individual Defendants William Angrick, LSI's CEO, and James Rallo,
LSI's CFO, constructed a story of sustained growth and expansion of
LSI's business -- specifically, in LSI's retail division -- by
issuing a series of fraudulent and misleading public statements
that artificially inflated stock prices throughout the class
period.
According to the complaint, the market learned the truth about the
declining growth in LSI's retail division and its troubles with
acquisitions through a series of partial corrective disclosures.
After the Defendants announced, on May 8, 2014, "below guidance"
financial results for the second quarter of fiscal year 2014, LSI's
stock price fell from $17.31 per share on May 7, 2014 to $12.17 per
share on May 8, 2014, a 29.7% drop.
After over four years of litigation, the parties in the securities
class action have reached a Settlement Agreement, pursuant to which
all of the Plaintiffs' claims will be resolved in exchange for a
cash payment of $17 million. The proposed Plan of Allocation
provides for distribution of the Net Settlement Fund among
Authorized Claimants on a pro rata basis based on 'Recognized Loss'
formulas tied to liability and damages, and the "Recognized Loss
Amount" for each authorized claimant will be calculated by the
Claims Administrator for each share of LSI common stock purchased
or acquired during the Class Period, as listed in the Claim Form,
and for which adequate documents is provided.
If any balance still remains in the Net Settlement Fund after such
distributions, and that balance is not feasible or economical to
reallocate, after payment of outstanding Notice and Administration
Expenses, Taxes, and attorneys' fees and expenses, that remainder
will be donated to one or more not-for-profit organizations
recommended by the Class Representatives, on notice to the
Defendants and the Defendants' Counsel, and approved by the Court.
The Class Counsel requests a fee of 25% of the Settlement Fund or
$4.25 million, as well as $790,897.81 in litigation expenses and a
collective request of $26,974.66 to reimburse Class Representatives
for their reasonable costs and expenses, including lost wages,
pursuant to the PSLRA.
On June 21, 2018, the Court preliminarily approved the settlement
agreement, appointed GCG as the Claims Administrator, scheduled the
final settlement hearing, and approved a plan for providing notice
of the proposed settlement to the Class. GCG began mailing "Claim
Packets" to potential class members, banks, brokerage firms, and
other third-party nominees on July 6, 2018, and, as of Sept. 27,
2018, had mailed 93,237 Claim Packets. The deadline for class
members to submit objections to the Settlement, the Plan of
Allocation, or the Fee and Expense Application was Sept. 14, 2018,
but, to date, no objections have been received.
On Aug. 31, 2018, the Class Representatives filed their Unopposed
Motion for Final Approval of Class Action Settlement and the Class
Counsel filed their Motion for an Award of Attorneys' Fees and
Payment of Litigation Expenses. The Court held a fairness hearing
on the record on Oct. 5, 2018.
Given the absence of any evidence of collusion or coercion on the
part of the parties, Judge Howell has no reason to doubt that the
settlement was the product of legitimate negotiation on behalf of
both sides, and a presumption of fairness, adequacy, and
reasonableness is warranted. A settlement that ranges from
approximately 4% to 14 of potentially recoverable damages compares
favorably with other similar securities class-action settlements,
thereby weighing in favor of approval.
Regarding awards in similar cases, the Judge finds that the $4.25
million fee award compares favorably to other action. The expenses
are the types of expenses that are necessarily incurred in complex
commercial litigation and routinely charged to clients billed by
the hour. As the Class Representatives correctly state, courts
regularly approve reasonable payments to the class representatives
to compensate them for the time, effort, and expenses they devoted
on behalf of a class.
For these reasons, Judge Howell granted both (i) the Class
Representatives' Unopposed Motion for Final Approval of Class
Settlement; and (ii) the Class Counsel's Motion for an Award of
Attorneys' Fees and Payment of Litigation Expenses
The appropriate Orders accompany the Memorandum Opinion.
A full-text copy of the Court's Oct. 5, 2018 Memorandum Opinion is
available at https://is.gd/Wg5Da6 from Leagle.com.
LEONARD HOWARD, Individually and on behalf of all others situated,,
Plaintiff, represented by Anita B. Kartalopoulos -- abk@whafh.com
-- WOLF, HALDENSTEIN, ADLER, FREEMAN & HERZ LLP, pro hac vice,
Elizabeth K. Tripodi -- etripodi@zlk.com -- LEVI & KORSINSKY LLP,
Benjamin Y. Kaufman -- kaufman@whafh.com -- WOLF, HALDENSTEIN,
ADLER, FREEMAN & HERZ LLP, Daniel Tepper -- tepper@whafh.com --
WOLF, HALDENSTEIN, ADLER, FREEMAN & HERZ LLP, pro hac vice, Jeffrey
G. Smith -- smith@whafh.com -- WOLF, HALDENSTEIN, ADLER, FREEMAN &
HERZ, pro hac vice & Nicholas Ian Porritt -- nporritt@zlk.com --
Levi & Korsinsky LLP.
CAISSE DE DEPOT ET PLACEMENT DU QUEBEC & NEWPORT NEWS EMPLOYEES'
RETIREMENT FUND, Plaintiffs, represented by Andrew D. Abramowitz --
aabramowitz@srkw-law.com -- SPECTOR, ROSEMAN & KODROFF, P.C., pro
hac vice, Andrew N. Dodemaide -- adodemaide@srkw-law.com --
SPECTOR, ROSEMAN & KODROFF, P.C., pro hac vice, Carol C. Villegas
-- cvillegas@labaton.com -- LABATON SUCHAROW LLP, pro hac vice,
Christopher M. Mooney, LABATON SUCHAROW LLP, pro hac vice, Jonathan
Gardner -- jgardner@labaton.com -- LABATON SUCHAROW LLP, pro hac
vice, Joshua Kaplan, SPECTOR, ROSEMAN & KODROFF, P.C., pro hac
vice, Mark S. Willis -- mwillis@srkw-law.com -- LABATON SUCHAROW
LLP, Samuel B.C. de Villiers, LABATON SUCHAROW LLP, pro hac vice,
Seth M. Jessee, LABATON SUCHAROW LLP, pro hac vice, Tom W. Watson
-- twatson@labaton.com -- LABATON SUCHAROW LLP, pro hac vice &
Nicole M. Zeiss, LABATON SUCHAROW LLP, pro hac vice.
LIQUIDITY SERVICES, INC., WILLIAM P. ANGRICK, III, JAMES M. RALLO &
KATHRYN A. DOMINO, Defendants, represented by Peter Dean Isakoff --
peter.isakoff@weil.com -- WEIL, GOTSHAL & MANGES, LLP, David P.
Byeff -- david.byeff@weil.com -- WEIL, GOTSHAL & MANGES, LLP, pro
hac vice, Irwin H. Warren -- irwin.warren@weil.com -- WEIL, GOTSHAL
& MANGES & Miranda S. Schiller -- miranda.schiller@weil.com --
WEIL, GOTSHAL & MANGES, LLP, pro hac vice.
CHRIS DEVLIN, LILIAN JAMROZINSKI & HENRY JAMROZINSKI, Movants,
represented by Monica E. Miller -- hello@cuneolaw.com -- CUNEO
GILBERT & LADUCA, LLP.
JONATHAN P. RODE, Movant, represented by Mark Hanna, MURPHY
ANDERSON PLLC.
TWIN CITY PIPES TRADE PENSION TRUST, Movant, represented by Brian
O. O'Mara -- bomara@rgrdlaw.com -- ROBBINS GELLER RUDMAN & DOWD
LLP.
LOGMEIN INC: Scott+Scott Attorneys Files Securities Class Action
----------------------------------------------------------------
Scott+Scott Attorneys at Law LLP, a national shareholder and
consumer rights litigation firm, is notifying investors that a
class action lawsuit has been filed against LogMeIn, Inc.
("LogMeIn" or the "Company") (NASDAQ: LOGM) and other defendants,
related to alleged violations of federal securities laws. The
lawsuit covers purchases of LogMeIn securities between March 1,
2017 and July 26, 2018. If you have questions, you are encouraged
to contact a Scott+Scott attorney at (844) 818-6980 for more
information. The lead plaintiff deadline is October 19, 2018.
LogMeIn provides a portfolio of cloud-based communication and
collaboration, identity and access, and customer engagement and
support solutions. On February 1, 2017, LogMeIn issued a press
release announcing the completion of its previously disclosed
merger with Citrix Systems, Inc.'s (CTXS) GoTo family of service
offerings, including GoToMeeting.
The lawsuit alleges that the defendants failed to disclose that:
(1) LogMeIn's business practices had negatively impacted renewal
rates for certain of its services; and (2) as a result, the
defendants' public statements were materially false and misleading
at all relevant times.
On July 26, 2018, after the market had closed, LogMeIn held an
earnings call to report its second quarter 2018 results. During the
call, William R. Wagner, LogMeIn's President and Chief Executive
Officer, and Edward K. Herdiech, LogMeIn's Chief Financial Officer,
detailed "executional missteps" related to the Citrix/GoTo merger.
Following this news, shares of LogMeIn fell $26.60 per share --
over 25% -- to close at $77.85 on July 27, 2018.
If you purchased LogMeIn securities, or if you have questions about
this notice please;
Rhiana Swartz, Esq.
Scott+Scott Attorneys at Law LLP
230 Park Ave, 17th Fl, NY, NY 10169
Telephone: (844) 818-6980
Email: rswartz@scott-scott.com [GN]
MACQUARIE INFRASTRUCTURE: Expects 2 Class Suits to be Consolidated
------------------------------------------------------------------
Macquarie Infrastructure Corporation said in its Form 10-Q Report
filed with the Securities and Exchange Commission on October 31,
2018, for the quarterly period ended September 30, 2018, that the
company expects the cases, City of Riviera Beach General Employees
Retirement System v. Macquarie Infrastructure Corp., et al. and
Daniel Fajardo v. Macquarie Infrastructure Corporation, et al.,
will be consolidated.
On April 23, 2018, a complaint captioned City of Riviera Beach
General Employees Retirement System v. Macquarie Infrastructure
Corp., et al., Case 1:18-cv-03608 (VSB), was filed in the United
States District Court for the Southern District of New York.
A substantially identical complaint captioned Daniel Fajardo v.
Macquarie Infrastructure Corporation, et al., Case No.
1:18-cv-03744 (VSB) was filed in the same court on April 27, 2018.
Both complaints assert claims under Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934 and Rule 10b-5 thereunder on behalf
of a putative class consisting of all purchasers of MIC common
stock between February 22, 2016 and February 21, 2018.
The named defendants in both cases are the Company and four current
or former officers of MIC and one of its subsidiaries, IMTT
Holdings LLC. The complaints in both actions, which are expected to
be consolidated, allege that the Company and the individual
defendants knowingly made material misstatements and omitted
material facts in its public disclosures concerning the Company's
and IMTT's business and the sustainability of the Company's
dividend to stockholders.
Macquarie Infrastructure said, "The Company intends to vigorously
contest the claims asserted in the City of Riviera Beach and
Fajardo complaints, which the Company believes are entirely
meritless."
Macquarie Infrastructure Corporation owns and operates a portfolio
of businesses that provide services to other businesses, government
agencies, and individuals. It operates through four segments:
International-Matex Tank Terminals (IMTT), Atlantic Aviation,
Contracted Power (CP), and MIC Hawaii. The company was founded in
2004 and is based in New York, New York.
MAGELLAN HEALTH: Court Conditionally Certifies Class in Deakin Suit
-------------------------------------------------------------------
In the case, MAUREEN DEAKIN, AND ALL OTHERS SIMILARLY SITUATED,
Plaintiff, v. MAGELLAN HEALTH, INC., MAGELLAN HEALTHCARE, INC.,
MAGELLAN HEALTH SERVICES OF NEW MEXICO INC., MERIT BEHAVIORAL
CORPORATION, & MAGELLAN HSRC, INC., Defendants, Case No.
17-CV-0773-WJ-KK (D. N.M.), Judge William P. Johnson of the U.S.
District Court for the District of New Mexico granted the
Plaintiffs' Motion for Notice to Potential Plaintiffs and
Conditional Certification.
Deakin is suing the Defendants to recover overtime wages that she
alleges the Defendants failed to pay her and other employees in
accordance with federal and state law. She asserts two counts:
Failure to Pay Wages in Accordance with the Fair Labor Standards
Act (Count I) and Violation of the New Mexico Wage Law (Count II).
The Plaintiff brings the action individually and on behalf of
similarly situated employees pursuant to the Fair Labor Standards
Act ("FLSA"), and also as a Rule 23 class action pursuant to the
New Mexico Wage Law. The current Motion seeks an Order allowing
notice to the potential Plaintiffs and conditional certification
pursuant to the collective action provision in the FLSA; the
present Motion is not for class certification pursuant to Federal
Rule of Civil Procedure 23.
After Plaintiff filed the present Motion for Conditional
Certification, the Defendants filed an Opposed Motion to Dismiss
for Failure to State a Claim. Upon receiving requests from both
parties for extensions in light of the Motion to Dismiss, U.S.
Magistrate Judge Kirtan Khalsa granted the Defendants' request that
the Defendants have 30 days from the entry of the Court's Order on
the Motion to Dismiss to file their response brief, if necessary,
to the Plaintiff's Motion for Conditional Certification.
On June 21, 2018, the Court denied the Defendants' Motion to
Dismiss and the parties resumed briefing the current Motion for
Conditional Certification. On July 23, 2018, the Defendants filed
their Response brief in opposition to the present Motion, and the
Plaintiff then filed her Reply brief to the Defendants' Response
brief.
The Defendants then requested that the Court grants them leave to
file a Surreply brief regarding the present Motion on the grounds
that the Plaintiff had narrowed the putative class in her Reply
brief. Upon receiving the parties' briefs for the Defendants'
request for leave, the Court granted Defendants' request to file a
Surreply, which the Defendants submitted on Sept. 5, 2018.
The Plaintiff seeks conditional certification and notice on the
grounds that a group of other similarly situated non-exempt
employees exists and that the Defendants knowingly subjected such
individuals to a single unlawful policy that denied payment for all
overtime hours worked by providing a salary.
Defendant Magellan Health is a managed health care company focused
on behavioral health, specialty health, and integrated care
management to health plans, employers, and the federal government.
Named Plaintiff Maureen Deakin was employed as a Care Coordinator
and Behavior Health Care Coordinator by the Defendants in New
Mexico. The Plaintiff has submitted the notices of individuals who
have consented to join the lawsuit prior to receiving any
Court-approved notice, and seven of those individuals have
submitted declarations to support the allegation that they are in
fact similarly situated to each other and to the putative class.
Because Jan. 9, 2018 until June 21, 2018, was the date that the
Court denied the Defendants' Motion to Dismiss, the limitations for
any future opt-in would be tolled by 163 days. On Sept. 30, 2018,
Deakin submitted her declaration supporting the collective action
proceedings.
Judge Johnson overruled the Defendants' objections to the method of
delivery of the Proposed Notice, and granted the Plaintiff's
request to send notice to the potential Plaintiffs by email and
text as well as by the United States Postal Service.
The parties are ordered to confer on and attempt to resolve the
following issues regarding the Proposed Notice and Consent Form,
some of which the Defendant addressed as objections in their
Response brief: (a) the blank spaces in the Proposed Notice, or
spaces that state "TBD," including the opt-in timeframe; (b) the
instances of "deceptive language" to which the Defendants object;
(c) the Defendants' objections to the "defective" nature of the
Notice; and (d) the Consent Form, which the Defendants failed to
address previously.
In addition, the Judge suggests that the parties use this time to
resolve the following issues that tend to come up regarding sending
Notice to the potential Plaintiffs: (a) the amount of time
Defendants have to provide employee information to the counsel for
Plaintiffs; (b) the contents of the electronic Notice to be sent
via email and text; and (c) the contents of the employee
information Defendants will disclose to the Plaintiffs' counsel.
Judge Johnson finds that the allegations in the First Amended
Complaint supported by the arguments and evidence in the Motion for
Notice to Potential Plaintiffs and Conditional Certification,
constitute substantial allegations that the putative class members
were, as a group, the victims of a single decision, policy, or plan
resulting in violations of the FLSA.
For the purpose of the Plaintiffs' FLSA claim, the case properly is
conditionally certified as a collective action on behalf of the
FLSA class members defined as the Defendants' current and former,
non-supervisory employees who worked for them in at least one
workweek for over 40 hours in one workweek over the past three
years; who received their pay on a salary basis; worked under a job
title within the Defendant's care management job family containing
the terms Care Coordinator or Care Manager; and whose job duties
included Care Management Work.
For these reasons, the Judge granted the Plaintiffs' Motion for
Notice to Potential Plaintiffs and Conditional Certification. He
ordered that the parties will have 10 days from the date of entry
of the Order to confer regarding the Proposed Notice and Consent
Form. They will submit within 14 days of the date of entry of the
Order a single Joint Proposed Notice and Consent Form reflecting
resolution of the items identified by the Court. The parties will
indicate resolution of each of the items identified, referring to
each by its respective number/letter.
Moreover, the parties will submit within 14 days of the date of
entry of the Order a single Joint Response containing the parties'
positions on the items addressed, again referring to each item by
its respective number/letter. Additionally, if the parties cannot
reach an agreement for each objection or issue, or some other issue
regarding the Proposed Notice and Consent Form, then the parties
will include their positions and why they could not reach a
resolution as to these narrow issues in their single Joint
Response.
A full-text copy of the Court's Oct. 5, 2018 Memorandum Order and
Opinion is available at https://is.gd/uzBf38 from Leagle.com.
Maureen Deakin, and all others similarly situated, Plaintiff,
represented by Jack L. Siegel -- jack@siegellawgroup.biz – Siegel
Law Group PLLC, Travis Andrew Gasper, Lee & Braziel, LLP & J. Derek
Braziel, Lee & Braziel LLP.
Magellan Health, Inc., Magellan Healthcare, Inc., Magellan Health
Services of New Mexico, Inc., Merit Behavioral Care Corporation &
Magellan HSRC, Inc., Defendants, represented by Mark D. Temple --
mtemple@reedsmith.com -- Reed Smith LLP, Randy S. Bartell --
abartell@montand.com -- Montgomery & Andrews, P.A. & Paige T.
Bennett -- pbennett@reedsmith.com -- Reed Smith, LLP, pro hac
vice.
MARICOPA COUNTY, AZ: Summary Ruling in Hees Suit Affirmed
---------------------------------------------------------
In the case, KERRY HEES, et al., Plaintiffs/Appellants, v. MARICOPA
COUNTY, Defendant/Appellee, Case No. 1 CA-TX 17-0004 (Ariz. App.),
Judge Jennifer B. Campbell of the Court of Appeals of Arizona,
Division One, affirmed the tax court's entry of judgment on the
pleadings dismissing their error correction claims against Maricopa
County.
In March 2015, Taxpayers Kerry Hees and Richard Zielinski filed
notices of claim with the Maricopa County Board of Supervisors
claiming an error in their property tax assessments. After the
County disputed their claims, the parties participated in a hearing
before the State Board of Equalization ("SBOE"). The SBOE denied
the Taxpayers' claims.
In January 2016, Taxpayers appealed the SBOE's decision to the tax
court. They titled their pleading a "class action petition" and
brought the action on behalf of themselves and all others similarly
situated. The Taxpayers' petition served as their notice of appeal
from the SBOE's decision. They named only one Defendant -- the
Maricopa County Assessor's Office. They served the Assessor three
days after filing their appeal.
The Assessor moved to dismiss Taxpayers' claims, asserting he is a
non-jural entity and, therefore, not subject to suit. The
Taxpayers cross-moved to amend their petition to name the County as
the proper Defendant. The tax court denied the Assessor's motion
to dismiss and granted the Taxpayers leave to amend. On June 23,
2016, Taxpayers filed a first amended class action petition, this
time properly naming the County as the defendant. The Taxpayers
did not serve the County, however, until Sept. 1, 2016, 70 days
later.
Thereafter, the County moved for judgment on the pleadings pursuant
to Arizona Rule of Civil Procedure 12(c), seeking dismissal of the
Taxpayers' appeal on several bases, including failure to timely
serve the County pursuant to A.R.S. Section 42-16209. The statute
requires service within 10 days after filing a notice of appeal to
tax court. Following oral argument, the court granted judgment on
the pleadings, dismissing the case for untimely service.
The Taxpayers appeal from the tax court's entry of judgment on the
pleadings dismissing their error correction claims against Maricopa
County.
Judge Cambelll finds that the amendment to the Taxpayers' petition
involved not merely a "caption correction," but the addition of a
new Defendant -- the County. The Rules require service on the
County through the Board of Supervisors' clerk. Simply providing a
copy of the amended petition to the Assessor's attorneys was not
sufficient. Accordingly, he affirmed the grant of judgment on the
pleadings.
She also finds that the tax court did not abuse its discretion in
determining that Taxpayers' failure to effect timely service did
not constitute excusable neglect. The tax court found that the
Taxpayers' failure to perfect service on the County until more than
six months after realizing they had the wrong Defendant did not
constitute excusable neglect. As the tax court noted, Arizona law
provides that the Board of Supervisors is the proper service entity
when naming the County as a Defendant. Arizona law also provides
that a taxpayer must serve the defendant with a copy of the notice
of appeal within 10 days after appealing to tax court.
A full-text copy of the Court's Oct. 9, 2018 Memorandum Decision is
available at https://is.gd/nejtXr from Leagle.com.
Hagens Berman Sobol Shapiro LLP, Phoenix, By E. Tory Beardsley,
Robert B. Carey -- ob@hbsslaw.com -- Leonard W. Aragon --
leonard@hbsslaw.com -- Co-Counsel for Plaintiffs/Appellants.
The Wilkins Law Firm PLLC, Scottsdale, By Amy M. Wilkins --
awilkins@wilkinslaw.net -- Co-Counsel for Plaintiffs/Appellants.
Maricopa County Attorney's Office, Phoenix, By Kathleen A.
Patterson, Joseph J. Branco, Co-Counsel for Defendant/Appellee.
Walker & Peskind, PLLC, Scottsdale, By Richard K. Walker,
Co-Counsel for Defendant/Appellee.
MDL 2286: Court OKs Cy Pres Distribution of Residual Deal Funds
---------------------------------------------------------------
In the case, IN RE: MIDLAND CREDIT MDL MANAGEMENT INC., TELEPHONE
CONSUMER PROTECTION ACT LITIGATION, MDL No. 2286, Member Case Nos.
10cv2261-MMA (MDD), 10cv2600-MMA (MDD), 11cv2368-MMA (MDD),
11cv2370-MMA (MDD) (S.D. Cal.), Judge Michael M. Anello of the U.S.
District Court for the Southern District of California granted the
parties' joint motion for approval of cy pres distribution of
remaining settlement funds to certain beneficiaries.
The individual Plaintiffs in the action generally allege that the
Defendants violated the rights of the Plaintiffs and the other
unnamed class members by illegally making debt collection calls to
them, through use of an automatic dialer or pre-recorded voice, on
their cellular telephones without first obtaining their prior
express consent in violation of the Telephone Consumer Protection
Act "TCPA"). All the Plaintiffs within the Multi-District
Litigation allege violations of the TCPA by the Defendants in
substantially the same manner.
A consolidated complaint was filed on July 11, 2012. The
consolidated complaint alleges that the Defendants violated the
TCPA by using a predictive dialer to call the Plaintiffs on their
cell phones regarding debts. The parties ultimately entered into a
settlement agreement and on Nov. 30, 2016, the Court granted final
approval of the class action settlement, as amended.
The Court certified the Settlement Class of all persons in the
United States who were called on a cellular telephone by the
Defendants or their subsidiaries, affiliates or related companies
(other than calls made by Asset Acceptance LLC, Atlantic Credit &
Finance, Inc. or Propel Financial Services) in connection with the
collection of an alleged debt using a dialer or by artificial or
prerecorded voice message without prior express consent during the
period from Nov. 2, 2006 through Aug. 31, 2014, inclusive.
Further, as part of the Settlement, the Defendants established a
Settlement Fund of approximately $21.5 million, to be allocated as
follows: (1) Net Settlement Amoun -- $15 million; (2) Attorneys'
Fees and Costs - $2.4 million; (3) Cost of Notice and Claims
Administration - $4,003,975.17; (4) Incentive Awards - $2,500 per
representative; and (5) Special Master Fees - $31,905.
The Net Settlement Amount was comprised of a $2 million Cash
Component and a $13 million Credit Component. The Cash Component
of the Settlement Fund was chiefly for those Settlement Class
Members who did not owe, or who disputed that they owed, the
Defendants any money. Each Settlement Class Member eligible to
receive a share of the Cash Component of the Settlement Fund was to
receive a pro rata share. Pursuant to the Settlement, any checks
distributed from the Cash Component of the Settlement Fund which
remained uncashed 180 days after they were issued would be
distributed to one or more cy pres recipients, to be agreed upon by
the parties, and upon Court approval.
Now, the Plaintiffs and the Defendants jointly move for Court
approval of cy pres distribution of the remaining balance of the
Settlement Fund, which amounts to approximately $284,719.98.
Specifically, they request that the balance be divided equally and
distributed to: (1) the University of Santa Clara Law School's
Privacy Law Certificate and High Tech Law Institute; and (2)
Jump$tart Coalition for Personal Financial Literacy.
The Privacy Law Certificate program at Santa Clara University
School of Law is a program committed to teaching lawyers how to
protect and enforce privacy laws. The the money would be used to
support faculty, staff and students to research and publish
scholarly, practitioner-oriented, and consumer-oriented
publications that will improve the public's understanding of their
privacy rights, and to create a new privacy-focused journal to
expand the discourse about privacy issues. The money would also
support privacy topic events to help educate practitioners and the
public about privacy issues.
Jump$tart Coalition for Personal Financial Literacy is a non-profit
organization that operates an online clearinghouse of financial
education resources, which is free to both users and resource
providers. If approved, the cy pres funds would be used to further
its efforts to educate and improve financial literacy of American
youth, including on the topic of credit and debt, which will
benefit the settlement Class Members by reducing future debt
collection calls.
Judge Anello granted the parties' joint motion for approval of cy
pres distribution. University of Santa Clara Law School's Privacy
Law Certificate and High Tech Law Institute, and Jump$tart
Coalition for Personal Financial Literacy are designated the cy
pres beneficiaries of the remaining balance of the Cash Component
of the Settlement Fund and must share equally in the cy pres award.
Kurtzman Carson Consultants, LLC, the claims administrator, must
promptly distribute the cy pres award to University of Santa Clara
Law School's Privacy Law Certificate and High Tech Law Institute,
and Jump$tart Coalition for Personal Financial Literacy in equal
amounts.
A full-text copy of the Court's Oct. 10, 2018 Order is available at
https://is.gd/NnPT5H from Leagle.com.
Christopher Robinson, Individually and on behalf of all others
similarly situated, Plaintiff, represented by Douglas J. Campion --
doug@djcampion.com -- Law Offices of Douglas J Campion, Abbas
Kazerounian, Kazerounian Law Group, APC & Joshua B. Swigart --
josh@westcoastlitigation.com -- Hyde & Swigart.
Eduardo Tovar, on behalf of himself and all others similarly
situated, Plaintiff, represented by Brian J. Trenz, Law Offices of
David Schafer PLLC, pro hac vice & David P. Schafer, Law Offices of
David Schafer PLLC, pro hac vice.
Nicholas Martin, on behalf of himself and others similarly
situated, Plaintiff, represented by Alexander H. Burk , Burke Law
Offices, LLC, pro hac vice.
Dave Scardina, individually and on behalf of a class, Plaintiff,
represented by Daniel A. Edelman, Edelman Combs Latturner & Goodwin
LLC, pro hac vice, James O. Latturner, Edelman, Combs, Latturner &
Goodwin, LLC, pro hac vice, Cassandra P. Miller, Edelman, Combs,
Latturner & Goodwin LLC, Cathleen M. Combs, Edelman, Combs,
Latturner & Goodwin, LLC, Curtis Charles Warner, Warner Law Firm,
LLC & Francis Richard Greene, Edelman Combs Latturner & Goodwin
LLC.
Chad R. Goetz, Plaintiff, pro se.
Midland Funding LLC, Defendant, represented by Aaron L. Vorce,
Dykema Gossett, Amy M. Gallegos , Jenner & Block LLP, Andrew
Michael Schwartz , Marshall, Dennehey, Warner, Coleman & Goggin,
P.C., Benjamin Michael Katz , Burr and Forman, Brett J Natarelli ,
Dykema Gossett PLLC, Bryan James Anderson, Dykema Gossett, PLLC,
Daniel Andrew Brown, WILLIAMS KASTNER & GIBBS, Danielle M.
Vugrinovich , Marshall, Dennehey, Warner, Coleman & Goggin, David
J. Elkanich , Holland & Knight, LLP, David M. Schultz , Hinshaw &
Culbertson, LLP, pro hac vice, Ethan A. Glickstein , Jenner & Block
LLP, Heather L. Kramer -- hkramer@dykema.com -- Dykema Gossett
PLLc, James Michael Golden, Dykema Gossett PLLC, John Anthony Love,
King and Spalding, pro hac vice, Joshua C. Dickinson, SPENCER FANE,
LLP, LATI WELLS SPENCE, MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN
PC, Lauren M. Burnette, Marshall Dennehey Warner Coleman & Goggin,
Matthew B. Ames, Balch & Bingham LLP, Matthew Brady Johnson,
Marshall Dennehey Warner Coleman & Goggin, Matthew W. McDade, BALCH
& BINGHAM, LLP, Michael Ronald Ayers, Hinshaw & Culbertson LLP,
Palak Naimesh Shah, Hinshaw & Culbertson LLP, Patrick Michael
DeLong, Marshall, Dennehey, Warner, Coleman & Goggin, Patrick T.
McLaughlin, SPENCER FANE LLP, Paul F. Labaki, Peltan Law, PLLC,
Paul A. Wilhelm, Dykema Gossett, Renee Lynn Zipprich, Dykema
Gossett PLLC, Stephen Michael Mahieu, Dykema Gossett, PLLC,
Theodore W. Seitz -- tseitz@dykema.com -- Dykema Gossett PLLC, pro
hac vice, Todd A Gale -- tgale@dykema.com -- Dykema Gossett PLLC,
Todd Philip Stelter, Hinshaw & Culbertson, Amanda Catherine
Fitzsimmons, DLA Piper LLP & Edward D Totino , DLA Piper LLP.
Midland Credit Management, Inc., Defendant, represented by Aaron L.
Vorce, Dykema Gossett, Aimee Guidry Szygenda, McGlinchey Stafford,
Amanda E Wilson, Amy M. Gallegos, Jenner & Block LLP, Amy R.
Jonker, DYKEMA GOSSETT PLLC, Andrew Michael Schwartz, Marshall,
Dennehey, Warner, Coleman & Goggin, P.C., Anthony J. Palermo,
Holland & Knight, LLP, Benjamin Michael Katz, Burr and Forman,
Brandon Stein, Hinshaw & Culbertson LLP, Brandon M. Wrazen, Peltan
Law, PLLC, Brett J Natarelli, Dykema Gossett PLLC, Bryan James
Anderson, Dykema Gossett, PLLC, Christopher David Johnsen, Holland
& Knight, Christopher Spain, Simmonds & Narita LLP, Cory W.
Eichhorn, Holland & Knight, LLP, pro hac vice, Daniel Andrew Brown,
WILLIAMS KASTNER & GIBBS, Danielle M. Vugrinovich, Marshall,
Dennehey, Warner, Coleman & Goggin, David J. Elkanich, Holland &
Knight, LLP, David George Peltan, Peltan Law, PLLC, David M.
Schultz, Hinshaw & Culbertson, LLP, pro hac vice, Erica Gooden
Bartimmo, Holland & Knight, LLP, Ethan A. Glickstein, Jenner &
Block LLP, Gennifer Lynn Bridges, Burr & Forman, LLP, Gregg D
Stevens, McGlinchey Stafford, Heather L. Kramer, Dykema Gossett
PLLc, James A. Byram, Jr., BALCH & BINGHAM, LLP, James Michael
Golden, Dykema Gossett PLLC, James S. Kreamer, Baker, Sterchi,
Cowden & Rice, LLC, James Lanter, James Lanter, P.C., Jared D.
Kemper, Dykema Gossett, PLLC, Jason Brent Tompkins, Balch & Bingham
LLP, pro hac vice, Jeffrey M. Sankey, Sankey Law Offices, Jennifer
L. Braster, Naylor & Braster Attorneys at Law, PLLC, John Anthony
Love , King and Spalding, pro hac vice, John M. Naylor , Naylor &
Braster Attorneys at Law, John Christopher Suedekum , Burr and
Forman, LLP, Jonathan Clayton Brown, Burr Forman LLP, Joseph L.
Francoeur, Wilson Elser Moskowitz Edelman & Dicker LLP, Joseph W
Letzer , Burr and Forman, Joshua C. Dickinson, SPENCER FANE, LLP,
Keasha Ann Broussard , King & Spalding, LLP, pro hac vice, LATI
WELLS SPENCER, MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN PC, Laura
Irene Hillerich, Marshall, Dennehey, Warner, Coleman & Goggin,
Laura Westerman Tanner , Burr & Forman, LLP, Lauren M. Burnette ,
Marshall Dennehey Warner Coleman & Goggin, Lauren Lynn Millcarek ,
Holland & Knight, LLP, Lawrence J. Bartel, III, MARSHALL DENNEHEY
WARNER COLEMAN & GOGGIN, Leah Suzanne Strickland , Solomon Ward
Seidenwurm & Smith LLP, M. Cory Nelson Lewis, Rice & Fingersh, pro
hac vice, Matthew B. Ames, Balch & Bingham LLP, Matthew J. Devine ,
Burr & Forman, LLP, Matthew Brady Johnson, Marshall Dennehey Warner
Coleman & Goggin, Mei-Ying M. Imanaka, Solomon Ward Seidenwurm &
Smith, LLP, Melissa S. Gutierrez, McGlinchey Stafford, Michael
Ronald Ayers, Hinshaw & Culbertson LLP, Nicole Strickler, Messer,
Stilp & Strickler, Ltd., pro hac vice, Palak Naimesh Shah, Hinshaw
& Culbertson LLP, Patrick Michael DeLong, Marshall, Dennehey,
Warner, Coleman & Goggin, Patrick T. McLaughlin , SPENCER FANE LLP,
Paul F. Labaki, Peltan Law, PLLC, Paul A. Wilhelm, Dykema Gossett,
Peter J. Caltagirone, Solomon, Ward, Seidenwurm and Smith, Rachel
R. Friedman, Burr & Forman LLP, Randy Jiro Aoyama, Hinshaw &
Culbertson LLP, Reid Stephens Manley, Burr Forman LLP, Renee Lynn
Zipprich, Dykema Gossett PLLC, Richard David Lane ,, Marshall
Dennehey Warner Coleman & Goggin, Robert Franklin Springfield, Burr
& Forman, LLP, Ronald Michael Metcho, II , Marshall, Dennehey,
Warner, Coleman & Goggin, P.C., pro hac vice, Russell S. Ponessa,
Hinshaw & Culbertson LLP, Stephen Michael Mahieu Dykema Gossett,
PLLC, Theodore J. Greeley, Dykema Gossett, PLLC, Theodore W. Seitz,
Dykema Gossett PLLC, pro hac vice, Thomas Butler Alleman , Dykema
Cox Smith, Thomas F. Landers, Solomon Ward Seidenwurm & Smith, LLP,
Thomas A. Leghorn, Wilson, Elser Law Firm, Thomas M. Martin , Lewis
Rice LLC, Todd A Gale, Dykema Gossett PLLC, Todd Philip Stelter,
Hinshaw & Culbertson, Tomio B. Narita, Simmonds & Narita LLP,
Amanda Catherine Fitzsimmons, DLA Piper LLP, Edward D Totino, DLA
Piper LLP, Jacqueline A. Simms-Petredis ,, Burr & Forman, LLP,
Tatiana Alexander Waits , McGlinchey Stafford LLP & Thomas Richard
DeBray, Jr. ,, Balch & Bingham, LLP.
Encore Capital Group, Inc., Defendant, represented by Amy M.
Gallegos, Jenner & Block LLP, Brett J Natarelli, Dykema Gossett
PLLC, Bryan James Anderson, Dykema Gossett, PLLC, Cory W. Eichhorn,
Holland & Knight, LLP, pro hac vice, Danielle M. Vugrinovich,
Marshall, Dennehey, Warner, Coleman & Goggin, Ethan A. Glickstein,
Jenner & Block LLP, James Michael Golden, Dykema Gossett PLLC,
Lauren Lynn Millcarek, Holland & Knight, LLP, Matthew B. Ames,
Balch & Bingham LLP, Rachel R. Friedman, Burr & Forman LLP, Renee
Lynn Zipprich, Dykema Gossett PLLC, Robert Franklin Springfield,
Burr & Forman, LLP, Theodore W. Seitz, Dykema Gossett PLLC, pro hac
vice, Amanda Catherine Fitzsimmons, DLA Piper LLP & Edward D
Totino, DLA Piper LLP.
Laura E. Hartman, an individual, Defendant, represented by Robert
W. Murphy, Law Office of Robert W. Murphy.
X, Y, Z Corporations, Defendant, represented by Lauren M. Burnette,
Marshall Dennehey Warner Coleman & Goggin.
Frederick J. Hanna & Associates, P. C., Defendant, represented by
Scot W. Groghan, Frederick J. Hanna & Associates, P.C.
MDL 2672: Court Issues Discovery Dispute Order in Clean Diesel Suit
-------------------------------------------------------------------
Magistrate Judge Jacqueline S. Corley of the U.S. District Court
for the Northern District of California has issued an order
regarding discovery dispute in the case, IN RE: VOLKSWAGEN "CLEAN
DIESEL" MARKETING, SALES PRACTICES, AND PRODUCTS LIABILITY
LITIGATION. This Order Relates To: Dkt. Nos. 5019, 5021, 5153, Case
MDL No. 2672 CRB (JSC) (N.D. Cal.).
The Magistrate Judge denied the Plaintiffs' request for an order
that would require Bosch to search for and produce responsive
documents for senior executives who have occupied six positions at
Bosch. She finds no indication from the record that these
executives were involved in developing or modifying the emissions
software at issue, and the Plaintiffs have not demonstrated that
these executives are likely to have "unique relevant information."
The Plaintiffs may renew their request if they obtain discovery
which supports that these executives are likely to have relevant
information that has not been provided by other custodians.
She granted the Plaintiffs' request for an order requiring Bosch to
search for and produce responsive documents for 10 additional
engineers. The discovery to date supports that the 10 engineers
were involved with the "acoustic function," a term that was
allegedly used by Bosch and VW to refer to the defeat device used
in VW's "clean diesel" cars. Because the defeat device is at the
center of the litigation, these engineers, according to the
Magistrate Judge, are likely to have information that is highly
relevant to the Plaintiffs' claims. Bosch has not convinced the
Court that the burden or expense of adding the engineers as
custodians would outweigh the likely benefit. The Plaintiffs and
Bosch will meet and confer to determine an appropriate schedule for
this search and production.
The Magistrate Judge granted the Plaintiffs' request for an order
requiring Bosch to search for and produce responsive documents
controlled by Bosch LLC's Director of Federal Government Affairs.
She finds that the Plaintiffs have cited to disclosures that
identify this Bosch employee as a lobbyist for issues related to
advanced diesel powered vehicles from at least 2013 to 2015, and as
someone who briefed a congressional subcommittee on "diesel
emissions" in 2016. Pro-diesel lobbying by Bosch may be relevant
to whether Bosch was a knowing participant in a scheme to defraud
U.S. regulators and the public about the benefits of VW's "clean
diesel" cars. Bosch has not explained why the burden or expense of
adding this individual as a custodian would outweigh the likely
benefit. The Magistrate directed the Plaintiffs and Bosch to meet
and confer to determine an appropriate schedule for this search and
production.
Finally, the Magistrate Judge granted the Plaintiffs' request for
an order requiring Bosch to identify the title and group
information for each of the 39 custodians currently being offered
as custodians by Bosch. She says this information would plausibly
assist the Plaintiffs in understanding Bosch's organizational
structure and the reporting relationships between the custodians.
Bosch has not explained why it cannot practically provide this
information. Bosch will provide the requested information by Oct.
19, 2018.
A full-text copy of the Court's Oct. 12, 2018 Order is available at
https://is.gd/PkEa5c from Leagle.com.
Nicholas Benipayo, Plaintiff, represented by Robert B. Carey --
rob@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, pro hac vice,
Steve W. Berman -- steve@hbsslaw.com -- Hagens Berman Sobol Shapiro
LLP, pro hac vice & Thomas Eric Loeser -- toml@hbsslaw.com --
Hagens Berman Sobol Shapiro LLP, pro hac vice.
David Fiol, Plaintiff, represented by William M. Audet, Audet &
Partners, LLP, Jeff D. Friedman, Hagens Berman Sobol Shapiro LLP,
Peter B. Fredman -- peter@peterfredmanlaw.com -- Law Office of
Peter Fredman, Robert B. Carey, Hagens Berman Sobol Shapiro LLP,
pro hac vice, Steve W. Berman, Hagens Berman Sobol Shapiro LLP, pro
hac vice & Thomas Eric Loeser, Hagens Berman Sobol Shapiro LLP, pro
hac vice.
Nadine Bonda, Plaintiff, represented by Adam M. Stewart --
astewart@shulaw.com -- Shapiro Haber & Urmy LLP & Thomas G. Shapiro
-- tshapiro@shulaw.com -- Shapiro Haber and Urmy, LLP.
Brian Connelly, Plaintiff, represented by Thomas G. Shapiro.
Nicholas Allen, Plaintiff, represented by Caleb Marker --
caleb.marker@zimmreed.com -- Zimmerman Reed LLP, pro hac vice &
Charles S. Zimmerman -- charles.zimmerman@zimmreed.com -- Zimmerman
Reed, PLLP, pro hac vice.
Brett Alters, Plaintiff, represented by Elizabeth J. Cabraser,
Lieff Cabraser Heimann & Bernstein, LLP, David S. Stellings, Lieff
Cabraser Heimann and Bernstein, Kevin R. Budner, Lieff, Cabraser,
Heimann and Bernstein, LLP, Nicholas Diamand, Lieff Cabraser
Heimann and Bernstein LLP, Phong-Chau Gia Nguyen, Lieff Cabraser
Heimann & Bernstein, LLP, Tana Lin -- tlin@kellerrohrback.com --
Keller Rohrback LLP & Todd A. Walburg, Lieff, Cabraser, Heimann,
Bernstein.
Donald Ardine, Plaintiff, represented by Amy Williams-Derry --
awilliams-derry@kellerrohrback.com -- Keller Rohrback L.L.P., Dean
Noburu Kawamoto -- dkawamoto@kellerrohrback.com -- Keller Rohrback
LLP, Derek William Loeser -- dloeser@kellerrohrback.com -- Keller
Rohrback, LLP, Gretchen Freeman Cappio --
gcappio@kellerrohrback.com -- Keller Rohrback, LLP, pro hac vice,
Lynn L. Sarko -- lsarko@kellerrohrback.com -- Keller Rohrback
L.L.P., pro hac vice & Tana Lin, Keller Rohrback LLP.
Annie Argento, Plaintiff, represented by Amy Williams-Derry, Keller
Rohrback L.L.P., Dean Noburu Kawamoto, Keller Rohrback LLP, Derek
William Loeser, Keller Rohrback, LLP, Gretchen Freeman Cappio,
Keller Rohrback, LLP, pro hac vice, Lynn L. Sarko, Keller Rohrback
L.L.P., pro hac vice & Tana Lin, Keller Rohrback LLP.
Arkansas State Highway Employees Retirement System, Plaintiff,
represented by Jai K. Chandrasekhar -- jai@blbglaw.com -- Bernstein
Litowitz Berger Grossmann LLP, pro hac vice, James A. Harrod --
jim.harrod@blbglaw.com -- Bernstein Litowitz Berger Grossmann LLP,
Matthew I. Henzi -- mhenzi@swappc.com -- Sullivan, War, Niki L.
Mendoza, Bernstein Litowitz Berger & Grossmann LLP, Ross M.
Shikowitz -- ross@blbglaw.com -- Bernstein Litowitz Berger
Grossmann LLP, pro hac vice & Susan Rebbeca Podolsky, The Law
Offices of Susan R. Podolsky.
Volkswagen Group of America, Inc., Defendant, represented by Amie
Adelia Vague -- avague@lightfootlaw.com -- Lightfoot Franklin &
White, Casey Erin Lucier -- clucier@mcguirewoods.com --
McGuireWoods LLP, Charles J. Baker, III -- cbaker@wcsr.com --
Womble Carlyle Sandridge and Rice, Colin Hampton Tucker --
chtucker@rhodesokla.com -- Rhodes Hieronymus Jones Tucker & Gable,
Dana Woodrum Lang -- wlang@wcsr.com -- Womble Carlyle Sandridge and
Rice, David M. Eisenberg, Baker, Sterchi, Cowden & Rice, LLC,
Elizabeth L. Deeley -- elizabeth.deeley@kirkland.com - - Kirkland &
Ellis LLP, Henry Buist Smythe, Jr., Womble Carlyle Sandridge and
Rice, Howard Feller, McGuireWoods LLP, Hugh J. Bode, Reminger &
Reminger Co LPA, J. Randolph Bibb, Jr., Lewis, Thomason, King,
Krieg & Waldrop, P.C., James K. Toohey, Johns & Bell LTD, Jeffrey
L. Chase, Chase Kurshan Herzfeld & Rufin LLC, Jeffrey S. Rugg,
Brownstein Hyatt Farber Schreck, LLP, Jennifer Marino Thibodaux,
Gibbons PC, John W. Cowden, Baker, Sterchi, Cowden & Ric, LLC-KCMO,
John W. Cowden, Baker Sterchi Cowden and Rice LLC, John L. Hone,
Lipshultz and Hone Chtd, John H. Tucker, Rhodes Hieronymus Jones
Tucker & Gable, Kerry R. Lewis, Rhodes Hieronymus Jones Tucker &
Gable, Kurt E. Lindquist, II, Womble Carlyle Sandridge & Rice,
PLLC, Larry Martin Roth, Rumberger,
Kirk & Caldwell, PA, Michael D. Begey, Rumberger, Kirk & Caldwell,
PA, Michael R. McDonald, Gibbons PC, Natalie Marie Lefkowitz, Chase
Kurshan Herzfeld & Rubin LLC, Ronald G. DeWald, Lipshultz and Hone
Chtd, Russ Ferguson, Womble Carlyle Sandridge & Rice LLP, Ryan
Nelson Clark, Lewis, Thomason, King, Krieg & Waldrop, P.C., Sara
Anne Ford, Lightfoot Ffanklin & White LLC, Seth Abram Schaeffer,
McGuireWoods LLP, Thomas R. Valen, Gibbons PC, William L. Boesch,
Sugarman Rogers Barshak & Cohen, Adam K. Bult, Brownstein Hyatt
Farber Schreck, Allison Rachel McLaughlin, Wheeler Trigg O'Donnell
LLP, Andrew Brian Clubok, Kirkland & Ellis, pro hac vice, Andrew R.
Levin, Sugarman Rogers Barshak & Cohen, PC, Andrew R. Levin,
Sugarman, Rogers, Barshak & Cohen, P.C., Anne Katherine Guillory,
Dinsmore & Shohl LLP, April L. Watson, Sessions, Fishman & Nathan,
Benjamin K. Reitz, Brownstein Hyatt Farber Schreck, Blake Adam
Gansborg, Wheeler Trigg O'Donnell, LLP, Brett R. Leland, Verrill
Dana LLP, Brian C. Langs, Johnson & Bell LTD, C. Vernon Hartline,
Jr., Hartline Dacus Barger Dreyer LLP, pro hac vice, Carine M.
Williams, Sullivan & Cromwell LLP, pro hac vice, Caroline M.
Tinsley, BAKER AND STERCHI, LLC, Charles William McIntyre, Jr.,
McGuireWoods LLP, Charles Pendleton Mitchell, Rumberger Kirk &
Caldwell, Christine Kingston, Nelson Mullins Riley & Scarborough
LLP, Christopher Edward Tribe, McGuireWoods LLP Gateway Plaza, Dan
R. Larsen, Dorsey and Whitney LLP, Darrell L. Barger, Hartline
Dacus Barger Dreyer LLP, David L. Ayers, Watkins and Eager PLLC,
David A. Barry, Esq., Sugarman Rogers Barshak & Cohen, David N.
May, Bradshaw Fowler Proctor & Fairgrove, David M.J. Rein, Sullivan
& Cromwell LLP, David T. Schaefer, Dinsmore & Shohl LLP, Edward W.
Hearn, JOHNSON & BELL, PC, Elena Lalli Coronado, Sullivan and
Cromwell, Elizabeth Righton Johnson, Balch & Bingham LLP, Emily
Anne Ellis, Brownstein Hyatt Farber Shreck, Eric R. Burris,
Brownstein Hyatt Farber Schreck, Erin Patricia Mead, Thorn,
Gershon, Tymann & Bonanni, LLP, Gail Ponder Gaines, Barber Law Firm
PLLC, Garrett L. Boehm, Jr., Johnson & Bell LTD, Harlan I. Prater,
IV, Lightfoot, Franklin & White, Hugh Brown McNatt, McNatt, Greene
& Peterson, J. Gordon Cooney, Jr., Morgan Lewis & Bockius LLP,
James L. Hollis, Balch & Bingham, Jeffrey L. Chase, Herzfeld &
Rubin PC, Jimmy B. Wilkins, WATKINS & EAGER, Jo E. Peifer, Lavin,
O'Neil, Ricci, Cedrone & DiSipio, John David Ayers, WATKINS &
EAGER, PLLC, John D. Donovan, Jr., Ropes and
Gray LLP, John Alan Knox, Williams Kastner & Gibbs, John Garrett
McCarthy, Sullivan and Cromwell LLP, pro hac vice, John Thomas
Prisbe, Venable LLP, Jonathan M. Hoffman, MB Law Group, LLP, Joy
Goldberg Braun, Sessions, Fishman, Nathan & Israel, Kenneth Abrams,
McGuire Woods LLP, Kevin P. Polansky, Nelson Mullins Riley &
Scarborough LLP, Laura Kabler Oswell, Sullivan & Cromwell LLP, Mark
A. Weissman, Herzfeld & Rubin, P.C., pro hac vice, Mary E. Bolkcom,
Hanson Bolkcom Law Group, Ltd., Matthew A. Schwartz, Sullivan and
Cromwell LLP, pro hac vice, Melissa Fletcher Allaman, Nelson,
Mullins, Riley & Scarborough, LLP, Meredith J. McKee, Womble
Carlyle Sandridge & RIice, PLLC, Meredith J. McKee, Womble Carlyle
Sandridge & Rice, Michael Thad Allen, Day Pitney LLP-HTFD, Michael
B. Gallub, Herzfeld and Rubin, pro hac vice, Michael E. Hale,
Barber Law Firm PLLC, Michael L. O'Don ell, Wheeler Trigg
O'Donnell, LLP, Michael H. Steinberg, Sullivan & Cromwell, LLP,
Michael A. Yoshida, MB Law Group, LLP, Mickey W. Greene, Hanson
Bolkcom Law Group, Ltd., Miranda Hanley, Smith Welch Webb & White,
LLC, Ningur Akoglu, Herzfeld & Rubin PC, Patricia Rodriguez
Britton, Nelson Mullins Riley Scarborough LLP, Patrick Demetrios
Grindlay, Paul T. Collins, Nelson Mullins Riley & Scarborough LLP,
pro hac vice, Paul E.D. Darsow, Hanson Bolkcom Law Group, Ltd.,
Paul D. Williams, Day Pitney LLP-Htfd-CT, Richard White Crews, Jr.,
Hartline Dacus Barger Dreyer LLP, Righton Johnson, Robert J.
Giuffra, Jr., Sullivan and Cromwell LLP, Ryan P. McCarthy, Morgan,
Lewis & Bockius LLP, Ryan A.
Morrison, Dinsmore & Shohl LLP, S. Keith Hutto, Nelson Mullins
Riley & Scarborough, Sarah Motley Stone, Womble Carlyle Sandridge &
Rice, PLLC, Sharon L. Nelles, Sullivan and Cromwell LLP, Sharon L.
Nelles, Sullivan & Cromwell LLP, pro hac vice, Shawn P. George,
George & Lorensen, Stanley Abbott Roberts, McGuireWoods LLP,
Stephen D. Bell, Dorsey & Whitney LLP, Steve S. Tervooren, Hughes
Gorski Seedorf Odsen & Tervooren LLC, Stuart A. Drake, Kirkland and
Ellis LLP, pro hac vice, Suhana S. Han, Sullivan and Cromwell LLP,
pro hac vice, Sverker K. Hogberg, Sullivan & Cromwell LLP, Thomas
R. Ferguson, III, Womble Carlyle Sandridge & Rice, PLLC, Thomas W.
Purcell, MB Law Group LLP, William B. Monahan, Sullivan and
Cromwell LLP, pro hac vice & William Henry Wagener, Sullivan and
Cromwell LLP, pro hac vice.
Audi AG, Defendant, represented by Elizabeth L. Deeley --
elizabeth.deeley@kirkland.com - Kirkland & Ellis LLP, Matthew Henry
Marmolejo -- mmarmolejo@mayerbrown.com -- Mayer Brown LLP, Michael
Howard Steinberg -- steinbergm@sullcrom.com -- Sullivan & Cromwell,
LLP, Andrew Brian Clubok - andrew.clubok@kirkland.com -- Kirkland &
Ellis, pro hac vice, Andrew R. Levin -- levin@sugarmanrogers.c0m -
Sugarman, Rogers, Barshak & Cohen, P.C., Brett R. Leland -
bleland@verrilldana.com -- Verrill Dana LLP, David Maxwell James
Rein -- reind@sullcrom.com -- Sullivan & Cromwell LLP, G. Stewart
Webb, Jr. -- gswebb@Venable.com -- Venable LLP, Garrett L. Boehm,
Jr. -- boehmg@jbltd.com -- Johnson & Bell LTD, J. Gordon Cooney,
Jr. -- gordon.cooney@morganlewis.com -- Morgan Lewis & Bockius
LLP,
James K. Toohey -- tooheyj@jbltd.com -- Johns & Bell LTD, John
Thomas Prisbe -- jtprisbe@venable.com -- Venable LLP, Laura Kabler
Oswell -- oswelll@sullcrom.com -- Sullivan & Cromwell LLP, Robert
J. Giuffra, Jr. -- giuffrar@sullcrom.com -- Sullivan and Cromwell
LLP, Ryan P. McCarthy -- ryan.mccarthy@morganlewis.com -- Morgan,
Lewis & Bockius LLP, Sharon L. Nelles -- nelless@sullcrom.com --
Sullivan and Cromwell LLP, Sharon L. Nelles, Sullivan & Cromwell
LLP, Stephen D. Bell -- bell.steve@dorsey.com -- Dorsey & Whitney
LLP, Stuart A. Drake -- stuart.drake@kirkland.com -- Kirkland and
Ellis LLP, pro hac vice & William B. Monahan --
monahanw@sullcrom.com -- Sullivan and Cromwell LLP.
Volkswagen AG, Defendant, represented by Elizabeth L. Deeley,
Kirkland & Ellis LLP, Matthew H. Marmolejo, Mayer Brown LLP,
Michael H. Steinberg, Sullivan & Cromwell, LLP, Andrew Brian
Clubok, Kirkland & Ellis, pro hac vice, Andrew R. Levin, Sugarman,
Rogers, Barshak & Cohen, P.C., Brett R. Leland, David M.J. Rein,
Sullivan & Cromwell LLP, G. Stewart Webb, Jr., Venable LLP, John D.
Donovan, Jr., Ropes and Gray LLP, Laura Kabler Oswell, Sullivan &
Cromwell LLP, Robert J. Giuffra, Jr., Sullivan and Cromwell LLP,
Sharon L. Nelles, Sullivan & Cromwell LLP, Stuart A. Drake,
Kirkland and Ellis LLP, pro hac vice & William B. Monahan, Sullivan
and Cromwell LLP.
Audi of America LLC, Defendant, represented by Matthew H.
Marmolejo, Mayer Brown LLP, Michael H. Steinberg, Sullivan &
Cromwell, LLP, Andrew Brian Clubok, Kirkland & Ellis, pro hac vice,
Andrew R. Levin, Sugarman, Rogers, Barshak & Cohen, P.C., Brett R.
Leland, David M.J. Rein, Sullivan & Cromwell LLP, G. Stewart Webb,
Jr., Venable LLP, John D. Donovan, Jr., Ropes and Gray LLP, Laura
Kabler Oswell, Sullivan & Cromwell LLP, Robert J. Giuffra, Jr.,
Sullivan and Cromwell LLP, Sharon L. Nelles, Sullivan & Cromwell
LLP, Stuart A. Drake, Kirkland and Ellis LLP, pro hac vice &
William B. Monahan, Sullivan and Cromwell LLP.
Volkswagen Group of America, a New Jersey corporation, Defendant,
represented by P. Arley Harrel, Williams Kastner & Gibbs, PLLC,
Gerard Cedrone, Lavin, O'Neil Ricci Cedrone & DiSipio, Kenneth
Abrams, McGuire Woods LLP, Laura Kabler Oswell, Sullivan & Cromwell
LLP & William B. Monahan, Sullivan and Cromwell LLP.
Audi of America, Inc., Defendant, represented by Matthew H.
Marmolejo, Mayer Brown LLP, Carine M. Williams, Sullivan & Cromwell
LLP, pro hac vice, Cheryl A. Bush, Bush, Seyferth & Paige, PLLC,
Colin H. Tucker, Rhodes Hieronymus Jones Tucker & Gable, David M.J.
Rein, Sullivan & Cromwell LLP, pro hac vice, John H. Tucker, Rhodes
Hieronymus Jones Tucker & Gable, Laura Kabler Oswell, Sullivan &
Cromwell LLP, Melissa Fletcher Allaman, Nelson, Mullins, Riley &
Scarborough, LLP, Michael R. Williams, Bush Seyferth & Paige PLLC,
Robert J. Giuffra, Jr., Sullivan and Cromwell LLP & William B.
Monahan, Sullivan and Cromwell LLP.
Dr. Ing. h.c.F. Porsche AG, Defendant, represented by Abby L.
Parsons, King & Spalding LLP, Adam G. Sowatzka, King & Spalding
LLP, Alexander K. Haas, King & Spalding LLP, Andrew R. Levin,
Sugarman, Rogers, Barshak & Cohen, P.C., Brett R. Leland, David M.
Fine, King, Spaulding Law Firm, G. Stewart Webb, Jr., Venable LLP,
Garrett L. Boehm, Jr., Johnson & Bell LTD, J. W. Codinha, Nixon
Peabody, LLP, James K. Toohey, Johns & Bell LTD, James K. Vines,
King & Spalding, John Thomas Prisbe, Venable LLP, Joseph Eisert,
King & Spalding LLP, Kenneth Yeatts Turnbull, King & Spalding LLP,
Matthew A. Goldberg, DLA Piper LLP, pro hac vice, Matthew A.
Holian, DLA Piper LLP, Nathan P. Heller, DLA Piper LLP, Sheldon T.
Bradshaw, KING & SPALDING, Sonya R. Braunschweig, DLA Piper LLP, W.
Scott O'Connell, Nixon Peabody LLP, pro hac vice & William F.
Kiniry, Jr., DLA Piper LLP, pro hac vice.
David Antellocy, Defendant, represented by Thomas Eric Loeser,
Hagens Berman Sobol Shapiro LLP, pro hac vice, Scott Moen,
Defendant, represented by Peter B. Fredman, Law Office of Peter
Fredman, Steve W. Berman, Hagens Berman Sobol Shapiro LLP, pro hac
vice & Thomas Eric Loeser, Hagens Berman Sobol Shapiro LLP, pro hac
vice.
Porsche AG, Defendant, represented by Alexander K. Haas, King &
Spalding LLP, Christina Courtney Sheehan, Modrall Sperling Roehl
Harris & Sisk PA, Joseph Eisert, King & Spalding LLP, Laura Kabler
Oswell, Sullivan & Cromwell LLP, Matthew A. Goldberg, DLA Piper
LLP, Nathan P. Heller, DLA Piper LLP, Susan Miller Bisong, Modrall
Sperling Roehl Harris & Sisk PA & William F. Kiniry, Jr., DLA Piper
LLP.
Robert Bosch GmbH, Defendant, represented by Matthew D. Slater,
Cleary Gottlieb Steen and Hamilton LLP, pro hac vice, Carmine D.
Boccuzzi, Jr., Cleary Gottlieb Steen & Hamilton LLP, pro hac vice &
David Lloyd Anderson, Sidley Austin LLP.
Bay Ridge Volvo-American, Inc, Defendant, represented by Natalie
Marie Lefkowitz, Chase Kurshan Herzfeld & Rubin LLC.
Audi USA, Defendant, represented by Laura Kabler Oswell, Sullivan &
Cromwell LLP.
MGT CAPITAL: Vincent Wong Files Securities Class Action
-------------------------------------------------------
The Law Offices of Vincent Wong disclosed that a class action has
commenced on behalf of shareholders of MGT Capital Investments Inc.
If you suffered a loss you have until the lead plaintiff deadline
to request that the court appoint you as lead plaintiff.
MGT Capital Investments Inc. (OTCMKTS: MGTI)
Lead Plaintiff Deadline: November 27, 2018
Class Period: October 9, 2015 and September 7, 2018
Get additional information about MGTI:
http://www.wongesq.com/pslra-1/mgt-capital-investments-inc-loss-submission-form?wire=3
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]
MICROCHIP TECHNOLOGY: Levi & Korsinsky Files Class Actions
----------------------------------------------------------
Levi & Korsinsky, LLP, disclosed that a class action lawsuit has
commenced on behalf of shareholders of Microchip Technology 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.
Microchip Technology Inc. (NASDAQGS: MCHP)
Class Period: March 2, 2018 - August 9, 2018
Lead Plaintiff Deadline: November 16, 2018
Join the action:
https://www.zlk.com/pslra-1/microchip-technology-inc-loss-form?wire=3
About the lawsuit: Throughout the class period, Microchip
Technology Inc. allegedly made materially false and/or misleading
statements and/or failed to disclose that: (1) Microsemi's
financial performance was underperforming Microchip's expectations;
and (2) as a result of the foregoing, Defendants' positive
statements about the Company's business, operations, and prospects,
including positive statements about Microsemi, were materially
misleading and/or lacked a reasonable basis.
To learn more about the Microchip Technology 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]
MIDLAND CREDIT: Santiago Files Suit Over Autodialed Calls
---------------------------------------------------------
Christina Santiago, individually and on behalf of other persons
similarly situated, Plaintiff, v. Midland Credit Management, Inc.,
Defendants, Case No. 18-cv-02331, (S.D. Cal., October 10, 2018),
seeks damages and other legal and equitable remedies, resulting
from violations of the Telephone Consumer Protection Act.
Defendant contacted Santiago on her cellular telephone without her
prior express consent, via an automatic telephone dialing system
and/or by using a prerecorded voice. Santiago has no previous
business dealings with Midland at any time.
Midland Credit Management is a debt collection agency located at
3111 Camino Del Rio North, Suite 103, San Diego, CA 92108. [BN]
Plaintiff is represented by:
L. Timothy Fisher, Esq.
BURSOR & FISHER, P.A.
1990 North California Blvd., Suite 940
Walnut Creek, CA 94596
Tel: (925) 300-4455
Fax: (925) 407-2700
Email: ltfisher@bursor.com
- and -
Scott A. Bursor, Esq.
Joshua D. Arisohn, Esq.
Andrew Obergfell, Esq.
BURSOR & FISHER, P.A.
369 Lexington Avenue, 10th Floor
New York, NY 10017
Telephone: (212) 989-9113
Facsimile: (212) 989-9163
E-Mail: scott@bursor.com
MONTEREY FINANCIAL: Can Compel Arbitration in Cintron FDCPA Suit
----------------------------------------------------------------
Judge Claire C. Cecchi of the U.S. District Court for the District
of New Jersey granted in part and denied in part as moot the
Defendant's motion to dismiss the case, LAZARAO CINTRON, Plaintiff,
v. MONTEREY FINANCIAL SERVICES, INC., Defendant, Civil Action No.
2:17-cv-11537 (D. N.J.), pursuant to Federal Rule of Civil
Procedure 12(b)(6).
The dispute arises out of a Retail Installment Contract between the
Plaintiff and third party Achieve Today, wherein Achieve Today
provided the Plaintiff with credit for personal, family or
household purposes. Sometime after signing the Contract, the
Plaintiff fell behind on payments owed, and thereafter, the Debt
was assigned or otherwise transferred to the Defendant.
The Contract contains an Agreement for Dispute Resolution. The
Plaintiff's electronic signature appears on both the third and
fourth pages of the Contract, one after the credit agreement
portion of the Contract, and one after the Arbitration Agreement
portion of the Contract.
On Nov. 10, 2017, the Plaintiff brought a complaint against the
Defendant alleging violations of the Fair Debt Collection Practices
Act ("FDCPA") for the Defendant's alleged attempt at collecting the
Debt in violation of such statute. In response, the Defendant
filed a motion to dismiss the Plaintiff's complaint or in the
alternative, compel arbitration.
With respect to the Defendant's motion to compel arbitration, the
Plaintiff challenges the validity of the Arbitration Agreement on
the bases that: (1) the Contract contains an electronic signature
rather than a printed signature; and (2) the two electronic
signatures on the third and fourth pages of the Contract contain
the same timestamp. The Plaintiff avers that the Defendant's
motion to compel arbitration should be denied because there would
at least be a triable question of fact as to whether the 'e-sign'
notations were affixed after the Plaintiff read the credit
agreement alone, or, after he had read the alleged Arbitration
Agreement.
Applying basic contract principles, Judge Cecchi finds the
Plaintiff's argument without merit. Failing to read a contract
does not excuse performance unless fraud or misconduct by the other
party prevented one from reading. The Plaintiff provides no
accusation of fraud or misconduct, and thus the Judge finds that
regardless of whether the Plaintiff signed the Contract before or
after he read both the credit agreement portion and the Arbitration
Agreement portion of the Contract, the Contract is valid.
Accordingly, she finds that the Arbitration Agreement is
enforceable and the Defendant's motion will be granted with respect
to arbitration.
For the foregoing reasons, Judge Cecchi granted in part and denied
in part as moot the Defendant's motion. The parties are directed
to proceed with arbitration, and the matter is dismissed. An
appropriate Order follows the Opinion.
A full-text copy of the Court's Oct. 10, 2018 Opinion is available
at https://is.gd/oG57PO from Leagle.com.
LAZARAO CINTRON, individually and on behalf of all others similarly
situated, Plaintiff, represented by TODD D. MUHLSTOCK --
tmuhlstock@bakersanders.com -- BAKER SANDERS LLC & MELISSA ANN
PIRILLO -- mpirillo@sanderslawpllc.com -- SANDERS LAW PLLC.
MONTEREY FINANCIAL SERVICES, INC., doing business as MONTEREY
COLLECTIONS, Defendant, represented by SEAN MICHAEL O'BRIEN --
sobrien@lippes.com -- LIPPES MATHIAS WEXLER FRIEDMAN LLP.
MONTEREY FINANCIAL: Lagrou Moved to E.D. Wash.
----------------------------------------------
In the case, CHRISTINA LAGROU, Plaintiff, v. MONTEREY FINANCIAL
SERVICES, LLC, d/b/a MONTEREY COLLECTIONS, Defendant, Case No.
3:18cv283-HEH (E.D. Va.), Judge Henry E. Hudson of the U.S.
District Court for the Eastern District of Virginia, Richmond
Division, granted the Plaintiff's Amended Motion to (1) Withdraw
Reference of Plaintiff's Amended Class Action Complaint from the
Bankruptcy Court and (2) Transfer Venue to the Eastern District of
Washington.
Health Diagnostic Laboratory, Inc. ("HDL") based in Richmond,
Virginia, was a provider of specialized laboratory services to
physicians and other health care providers throughout the United
States. In October 2014, Lagrou, a resident of Washington state,
received laboratory services from HDL in connection with medical
treatment, allegedly accruing a debt to HDL in the process.
Thereafter, in June 2015, HDL and its affiliated companies filed
for Chapter 11 Bankruptcy in the U.S. Bankruptcy Court of the
Eastern District of Virginia. In May 2016, the Bankruptcy Court
approved the Second Amended Plan of Liquidation and appointed
Richard Arrowsmith as the Liquidating Trustee. In this role, the
Liquidating Trustee engaged debt collection firms to assist HDL
with the recovery of outstanding assets that the Company believed
it was owed. Monterey Financial Services, LLC, a California
Limited Liability Company, was one of the debt collection firms
engaged by the Liquidating Trustee.
The Plaintiff's Class Action Complaint alleged that the Defendant,
while acting on behalf of the Liquidating Trustee, engaged in
illegal collection practices that violated the Fair Debt Collection
Practices Act ("FDCPA"). The Plaintiff's Complaint also contended
that she did not owe a debt to HDL. On March 10, 2017, the same day
that Plaintiff filed her Complaint, she moved to withdraw the
bankruptcy reference and to transfer venue to the Eastern District
of Washington.
Subsequently, on Oct. 26, 2017, the Plaintiff and the Liquidating
Trustee settled their dispute regarding any outstanding debt that
the Plaintiff allegedly owed HDL. Based on this settlement, the
Plaintiff filed an Amended Complaint. Significantly, the parties
both acknowledge in their respective legal memoranda that the
Plaintiff's claims in the Amended Complaint are no longer related
to the HDL bankruptcy action. The parties disagree, however, on
the appropriate means of extracting the Amended Complaint from the
Bankruptcy Court. As a result, the Plaintiff has renewed her
Motion to Withdraw the Reference and to Transfer Venue. The
Defendant, on the other hand, contends that the Amended Complaint
should be dismissed.
In light of the factors that the Court must consider, particularly
that the Plaintiff was required to file her case within the Eastern
District of Virginia, Judge Hudson finds that a transfer of venue
is appropriate because the claims that were related to the HDL
bankruptcy have been resolved.
In addition, the Judge notes that the inconvenience of having the
Defense counsel admitted pro hac vice in the Plaintiff's preferred
forum is not sufficiently burdensome to require the Plaintiff to
continue to prosecute her claims in the Eastern District of
Virginia -- on the opposite side of the country from her preferred
venue and where the underlying circumstances occurred.
Finally, while the Defendant argues that records in the case are
"voluminous," little if anything, has been done to advance the
adjudication of the Plaintiff's FDCPA claims. In fact, to the
contrary, it appears that the voluminous records referenced pertain
to the underlying bankruptcy matters that initially ensnared the
Plaintiff's claims.
Thus, for all the reasons stated, Judge Hudson granted the
Plaintiff's Motion and withdrew the bankruptcy reference in the
current matter. In addition, he finds it just and appropriate to
transfer venue to the District Court for the Eastern District of
Washington. An appropriate Order will accompany the Memorandum
Opinion.
A full-text copy of the Court's Oct. 9, 2018 Memorandum Opinion is
available at https://is.gd/KpcU4c from Leagle.com.
Christina Lagrou, Movant, represented by Ronald Allen Page, Jr. --
rpage@rpagelaw.com -- Ronald Page PLC & Stephen F. Taylor, Lemberg
Law LLC, pro hac vice.
Monterey Financial Services, LLC, Respondent, represented by James
Kerr Donaldson, Spotts Fain PC, Timothy George Moore --
tmoore@spottsfain.com -- Spotts Fain PC & Richard M. Scherer, Jr.
-- rscherer@lippes.com -- Lippes Mathias Wexler Friedman LLP, pro
hac vice.
MOVEMENT MORTGAGE: Blumenthal Nordrehaug Files Class Action Lawsuit
-------------------------------------------------------------------
The San Francisco employment law lawyers at Blumenthal Nordrehaug
Bhowmik De Blouw LLP, filed a class action complaint alleging that
Movement Mortgage, LLC, failed to provide their California
employees with meal and rest periods as required by California law.
The Movement Mortgage, LLC, class action lawsuit, Case No.
RG18924431, is currently pending in the Alameda County Superior
Court for the State of California. A copy of the Complaint can be
read here.
According to the lawsuit filed in the Alameda County Superior
Court, Movement Mortgage, LLC, allegedly failed to provide their
employees with meal and rest breaks because allegedly Movement
Mortgage, LLC, did not have a policy to provide their hourly
employees thirty (30) minute uninterrupted meal breaks prior to
their fifth (5th) hour of work. California labor laws require an
employer to provide an employee required to perform work for more
than five (5) hours during a shift with, a thirty (30) minute
uninterrupted meal break prior to the end of the employee's fifth
(5th) hour of work.
Additionally, the complaint further alleges Movement Mortgage, LLC,
committed acts of unfair competition in violation of the California
Unfair Competition Law, Cal. Bus. & Prof. Code §§ 17200, et seq.
(the "UCL"), by engaging in a company-wide policy and procedure
which failed to accurately calculate and record all missed meal and
rest periods by PLAINTIFF and other CALIFORNIA CLASS Members. As a
result of DEFENDANT's intentional disregard of the obligation to
meet this burden, DEFENDANT allegedly failed to properly calculate
and/or pay all required compensation for work performed by the
members of the CALIFORNIA CLASS and violated the California Labor
Code.
If you would like to know more about the Movement Mortgage, LLC,
lawsuit please;
Nicholas J. De Blouw, Esq.
Blumenthal Nordrehaug Bhowmik De Blouw LLP
Email: deblouw@bamlawca.com [GN]
NATIONAL RESEARCH: Court Dismisses Consolidated Shareholder Suit
----------------------------------------------------------------
In the case, In re NATIONAL RESEARCH CORPORATION Shareholder
Litigation, Case No. 4:17-CV-441 (D. Neb.), Judge John M. Gerrard
of the U.S. District Court for the District of Nebraska granted the
Defendants' motion to dismiss the Verified Consolidated Shareholder
Class Action and Derivative Complaint.
Gennaro commenced the matter as a Verified Shareholder Class Action
complaint, filed on Nov. 15, 2017, naming NRC, its CEO Michael D.
Hays, and members of its Board of Directors, Joann M. Martin,
Barbara J. Mowry, John N. Nunnelly, and Donald M Berwick, as the
Defendants. On Nov. 30, 2017, the Court ordered Gennaro's
complaint consolidated with a complaint filed by James Gerson
(4:17-CV-3152). On March 23, 2018, Gennaro and Gerson filed their
Verified Consolidated Shareholder Class Action and Derivative
Complaint, which is now the operative complaint and the object of
the Defendants' motions to dismiss.
Hays founded NRC in 1981. In 1997, he reincorporated NRC in
Wisconsin. Notwithstanding its reincorporation, NRC's headquarters
remained in Nebraska. In 2014, NRC engaged in a recapitalization
that resulted in two classes of stock -- Class A Stock and Class B
Stock -- with different voting and dividend rights. The holders of
Class B Stock received one vote per share, whereas the holders of
Class A Stock received 1/100th of a vote per share. Also, the
holders of Class B Stock had the right to receive six times the
dividend paid on a share of Class A Stock.
Hays is NRC's controlling shareholder. In 2017, he held
approximately 26% of the outstanding shares of the Class A Stock
and approximately 56% of the outstanding shares of the Class B
Stock. Because of his stock holdings, Hays held approximately 54.1
of the total voting power. The Michael and Karen Hays
Grandchildren's Trust was established by Hays and his wife and held
approximately 28% of the outstanding Class A Stock and
approximately 3.5% of the outstanding shares of the Class B Stock.
Combined, Hays and the Trust controlled approximately 54 of the
Class A Stock voting power, and 59.5 of the Class B Stock voting
power.
Sometime before August 2017, Hays and the Board began formulating a
plan to repurchase and retire all the outstanding Class B Stock,
except the Class B Stock owned by Hays. The Plaintiffs assert that
Hays and his family were the intended beneficiaries of the Hays
Transaction. According to them, when the Hays Transaction was
announced, Hays held a 40.8 "economic stake" in NRC and controlled
54.1% of NRC's voting power. Had the Hays Transaction come about,
Hays would have held a 51.9% economic interest in NRC and
controlled 92.3% of its voting power.
However, the Hays Transaction was never implemented. The
Plaintiffs credit their initial complaints and motions for
preliminary injunctive relief, filed between Nov. 15 and 17, 2017
with the NRC Board's announcement on Dec. 13, 2017 that it was
terminating the proposed Hays Transaction. The Plaintiffs allege,
at length, all sorts of damage and harm to NRC and its minority
shareholders that they say would have occurred had the Hays
Transaction taken effect. In addition, they allege that NRC
suffered damage notwithstanding the Board's abandonment of the Hays
Transaction. In this regard, the Plaintiffs claim that NRC
incurred over $1 million in unnecessary expenses, including over
$500,000 of Hays's personal expenses that the Board decided to
reimburse.
Although the Board abandoned the Hays Transaction, the Board did
not abandon the concept that the Class B Shares needed to be
retired. The Board developed what the Plaintiffs refer to as the
"Replacement Transaction" to address nearly all the criticisms the
Plaintiffs raised regarding the Hays Transaction.
The Board elected to solicit minority shareholder approval of the
Replacement Transaction even though Hays and his family constituted
a majority of the voting power. The Plaintiffs allege that the
proxy issued by the Board to solicit the minority shareholders'
approval failed to disclose material information because it did not
include NRC management's cash flow projections. They also allege
that the proxy appeared to mislead shareholders regarding
reimbursement of Hays' personal expenses by reporting that the
expenses were for legal, advisory, and financial modeling fees that
would have been borne directly by NRC had Hays not advanced the
costs.
The matter comes before the Court on the Defendants' motion to
dismiss the Plaintiffs' suit against them in its entirety pursuant
to Fed. R. Civ. P. 12(b)(6), or in the alternative, to dismiss
their federal claim and stay the their state claims in favor of a
parallel Wisconsin case docketed in Milwaukee County Circuit Court.
Judge Gerrard finds that the Plaintiffs failed to state any facts
giving rise to a strong inference that the NRC Directors or
management acted with the state of mind to mislead or deceive the
minority stockholders by not including management's cash flow
projections in the proxy. They allege no facts showing that the
proxy was misleading absent managements' cash flow projections --
in other words, they point to nothing in the proxy statement that's
untrue or even misleading unless the cash flow projections are also
included.
The Judge also finds that the Plaintiffs' bare assertion that the
expenses reimbursed to Hays were for personal expenses is, yet
again, a blanket assertion that does not live up to the
particularity requirements of the Reform Act. No facts were
pleaded showing a strong inference that the NRC Defendants acted
with an intent to deceive or acted recklessly to deceive
shareholders in connection with the disclosure concerning Hays'
expense reimbursement.
The Plaintiffs have not alleged any facts indicating that they
suffered a loss resulting from the disclosure of the reimbursement
to Hays found in the proxy statement. It is their burden to prove
their loss resulting from what they assert was a false or
misleading proxy. Having failed to plead any facts showing such
loss, the Plaintiffs are apparently without proof of a loss.
At best, the Plaintiffs complained that the Defendant Directors did
not do enough to vet the Hays Transaction before approving it. In
any event, while the Plaintiffs hypothesize everything they think
could have been done, they do not allege facts showing a willful
failure to deal fairly with shareholders, or a conflict of interest
of any kind, or an improper profit, or willful misconduct on the
part of any of the defendant Directors.
The Judge finds that the Plaintiffs' Section 14(a) claims and
Wisconsin state-law claims for breach of a fiduciary duty should be
dismissed for failure to state a claim upon which relief can be
granted pursuant to Rule 12(b)(6).
For these reasons, Judge Gerrard granted the Defendants' motion to
dismiss and dismissed the Plaintiffs' consolidated complaint. He
denied the Plaintiffs' motion for oral argument. A separate
judgment will be entered.
A full-text copy of the Court's Oct. 9, 2018 Memorandum and Order
is available at https://is.gd/ArzG93 from Leagle.com.
Anthony Gennaro, Jr., on Behalf of Himself and All Others Similarly
Situated, Plaintiff, represented by Blake E. Johnson --
blake@bruninglawgroup.com -- BRUNING LAW GROUP, Craig J. Springer
-- cspringer@andrewsspringer.com -- ANDREWS, SPRINGER LAW FIRM, pro
hac vice, David D. Cookson -- david@bruninglawgroup.com -- BRUNING
LAW GROUP, Eric L. Zagar -- ezagar@ktmc.com -- KESSLER, TOPAZ LAW
FIRM, pro hac vice, Grant D. Goodhart -- ggoodhart@ktmc.com --
KESSLER, TOPAZ LAW FIRM, pro hac vice & Michael C. Wagner --
mwagner@ktmc.com -- KESSLER, TOPAZ LAW FIRM, pro hac vice.
James D. Gerson, on behalf of himself and all other similarly
situated shareholders of National Reserarch Corporation, and
derivatively on behalf of Nominal Defendant National Research
Corporation, Plaintiff, represented by Blake E. Johnson, BRUNING
LAW GROUP, David D. Cookson, BRUNING LAW GROUP, Mark D. Richardson,
LABATON SUCHAROW LAW FIRM, pro hac vice, Ned Weinberger, LABATON
SUCHAROW LAW FIRM, pro hac vice & Thomas Curry, LABATON SUCHAROW
LAW FIRM, pro hac vice.
National Research Corporation, Michael D. Hays, JoAnn M. Martin,
Barbara J. Mowry, Donald M. Berwick & John N. Nunnelly, Defendants,
represented by Audrey R. Svane -- asvane@woodsaitken.com -- WOODS,
AITKEN LAW FIRM, Bryan B. House -- bhouse@foley.com -- FOLEY,
LARDNER LAW FIRM, pro hac vice, Kate E. Gehl -- kgehl@foley.com --
FOLEY, LARDNER LAW FIRM, pro hac vice, Terry C. Dougherty --
tdougherty@woodsaitken.com -- WOODS, AITKEN LAW FIRM & Thomas L.
Shriner, Jr. -- tshriner@foley.com -- FOLEY, LARDNER LAW FIRM, pro
hac vice.
NISSAN NORTH AMERICA: Court Narrows Claims in Knotts Suit
---------------------------------------------------------
In the case, Michael Knotts, on Behalf of Himself and All Others
Similarly Situated, Plaintiff, v. Nissan North America, Inc.,
Defendant, Case No. 17-cv05049 (SRN/SER) (D. Minn.), Judge Susan
Richard Nelson of the U.S. District Court for the District of
Minnesota (i) granted in part and denied in part the Defendant's
Motion to Dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6); and (ii) denied the Defendant's Motion to Strike or
Dismiss Plaintiff's Class Allegations based on the U.S. Supreme
Court's decision in Bristol-Myers Squibb Co. v. Superior Court of
California.
Knotts, a citizen of Minnesota, alleges that in approximately
October 2012, he purchased a new Nissan Versa from Morrie's Nissan,
an authorized Nissan dealership located in Brooklyn Park,
Minnesota. Defendant NNA is a California corporation with its
principal business office in Sacramento, California, and its North
American headquarters in Franklin, Tennessee. It markets, sells,
and warrants vehicles, including 2012 Nissan Versas, through an
established network of licensed dealers and distributors.
The subject vehicle that the Plaintiff purchased was built with a
continuously variable automatic transmission ("CVT"). NNA provides
its customers with a three-year, 36,000-mile limited vehicle
warranty and a five-year, 60,000-mile powertrain warranty on all of
its vehicles. The Warranty covers any repairs needed to correct
defects in materials or workmanship of all parts and components of
each new Nissan vehicle supplied by Nissan, including the engine,
transmission, drivetrain, and restraint system.
Knotts alleges that unbeknownst to him and the putative class
members, the subject vehicles' CVTs were "defective," and routinely
failed during and shortly after the expiration of the Warranty.
The alleged defect causes the vehicle to lose most, if not all, of
its ability to accelerate, putting the vehicle's occupants at
serious risk of harm. As a result of this defect, the Plaintiff
alleges that NNA's CVTs fail after an unreasonably low number of
miles have been driven -- frequently just after the expiration of
the Warranty.
In the Complaint, Knotts quotes 18 complaints filed with the NHTSA
involving acceleration failures in 2012 Nissan Versas. Knotts
asserts that despite these consumer complaints, NNA failed to
disclose the defective CVT to the Plaintiff and the Class members,
both before and after purchase.
The Plaintiff asserts that at all relevant times, Nissan had
exclusive possession of the information regarding the defective CVT
and its propensity to fail and malfunction based upon, inter alia,
Nissan's own testing, industry testing, and the numerous consumer
complaints it received. Moreover, the Plaintiff further alleges
that NNA has no viable fix for the CVT defect, other than
transmission replacement, after the failure manifests. The cost of
the defect, Knotts asserts, has been borne by the Plaintiff and the
class members.
The Plaintiff initiated the putative class action on Nov. 7, 2017,
on behalf of all current and former owners and lessees of model
year 2012 Nissan Versas that are equipped with a continuously
variable automatic transmission.
The Plaintiff proposes the following classes:
i. National Class: All current and former owners and lessees
of the Subject Vehicles purchased or leased in the United States.
ii. Minnesota Class: All current and former owners and lessees
of the Subject Vehicles purchased or leased in the State of
Minnesota.
Knotts asserts three Minnesota statutory claims on behalf of a
putative Minnesota Class. In Counts I and II, Knotts asserts
deceptive trade practices claims under the Minnesota Deceptive
Trade Practices Act ("MDTPA"). In Count III, he asserts violations
of the Minnesota False Statement in Advertising Act ("MFSAA").
In Counts IV through VII, Knotts asserts common law claims on
behalf of the both the putative national and Minnesota classes. In
Count IV, he asserts a claim for breach of express warranty; in
Count V, he asserts a claim for breach of the implied warranty of
merchantability and fitness; in Count VI, he asserts a claim of
fraudulent misrepresentation, concealment, and failure to disclose;
and in Count VII, Knotts pleads an alternative claim of unjust
enrichment.
In its Motion to Dismiss, NNA argues that the Plaintiff's claims
fail to state a claim upon which relief can be granted for several
reasons, including the following: (1) the express warranty claim
fails because Knotts does not allege that his vehicle was defective
in materials or workmanship; (2) the implied warranty claim fails
because Knotts' 2012 Versa successfully performed its ordinary
function for the duration of the express warranty; (3) there can be
no claim for unjust enrichment because there is an express contract
between the parties; (4) Plaintiff's common law fraudulent
misrepresentation claim does not allege an actionable
misrepresentation that Knotts relied upon, nor does he allege that
NNA had fiduciary obligations to him or was otherwise obliged to
make disclosures to him under Minnesota law; (5) the MFSAA claim
fails because Knotts does not identify any advertisement that he
saw, heard, or relied upon; (6) the MDTPA claim in Count I fails
because Knotts pleads no facts that would support injunctive
relief; and (7) Knotts' statutory claims in Counts I through III
fail because he alleges no public benefit.
In its Motion to Strike, NNA moves to strike, or in the
alternative, to dismiss, the nationwide-class definition and
accompanying allegations set forth in paragraphs 44-51 of the
Complaint. NNA argues that the Court lacks personal jurisdiction
over it as to the claims of absent members of the putative class
who did not purchase their automobiles in Minnesota and whose
claims lack a sufficient connection with Minnesota to allow them to
be adjudicated in a court of the state.
Judge Nelson (i) granted in part and denied in part the Defendant's
Motion to Dismiss. The Motion is granted as to Counts IV, VI, and
Count III.
The Judge finds that the Plaintiff's claim for relief under the
MFSAA fails to state a claim on which relief may be granted.
However, because these deficiencies may be cured through
re-pleading, she dismissed the claim without prejudice. She also
finds that the Plaintiff's current claim does not state the
necessary elements of fraudulent misrepresentation, concealment,
and failure to disclose. However, because an amended pleading
could correct these deficiencies, the claim is dismissed without
prejudice. As to Count IV, the Judge finds that because Knotts did
not take his vehicle to a Nissan-authorized dealer, re-pleading
would be futile. Accordingly the claim is dismissed with
prejudice. The Judge denied the Motion as to Counts V, VII, I and
II.
The Judge denied the Defendant's Motion to Strike or Dismiss
Plaintiff's Class Allegations. She finds that the efficient
administration of class actions would be compromised by requiring
the Court to make personal jurisdiction determinations for every
named and potential unnamed plaintiff, particularly at the outset
of the litigation. Such an unwieldy process would defeat the
purpose of the class action mechanism.
A full-text copy of the Court's Oct. 10, 2018 Memorandum Opinion
and Order is available at https://is.gd/7nZvji from Leagle.com.
Michael Knotts, On Behalf of Himself and All Others Similarly
Situated, Plaintiff, represented by James C. Shah, Shepherd,
Finkelman, Miller & Shah, LLC, pro hac vice, Melissa S. Weiner --
weiner@halunenlaw.com -- Pearson Simon & Warshaw, LLP & Natalie
Finkelman Bennett, Shepherd Finkelman Miller & Shah, LLP.
Nissan North America, Inc., Defendant, represented by Edwin Paul
Cauley, Jr. -- paul.cauley@dbr.com -- Drinker Biddle & Reath LLP,
pro hac vice, Mark A. Solheim -- msolheim@larsonking.com -- Larson
King, LLP & Sherman Vance Wittie -- vance.wittie@dbr.com -- Drinker
Biddle Reath LLP, pro hac vice.
OAKWOOD, OH: Restitution Summary Ruling Bid in Thompson Suit OK'd
-----------------------------------------------------------------
In the case, JASON THOMPSON, et al., Plaintiffs, v. CITY OF
OAKWOOD, OHIO, et al., Defendants, Case No. 3:16-cv-169 (S.D.
Ohio), Judge Thomas M. Rose of the U.S. District Court for the
Southern District of Ohio, Western Division, Dayton, (i) granted
Thompson and 2408 Hillview, LLC's Motion for Summary Judgment on
Restution Owed to Class Members; and (ii) granted in part Oakwood's
Motion for Order Setting Immediate Protocals under FRCP
23(d)(1)(A), 23(d)(1)(B)(ii) & 23(d)(1)(E) and to Adopt Proposed
Final Judgment Entry.
On Feb. 8, 2018, the Court granted summary judgment against Oakwood
as to liability on the Plaintiffs' claims and certified a class
under Fed. R. Civ. P. 23(b)(2) of all individuals and businesses
that have (1) sold houses within the City of Oakwood since May 25,
2010, and (2) paid pre-sale inspection fees to the City of Oakwood
in conjunction with the sale of their houses.
Now before the Court is the Plaintiffs' Motion for Summary Judgment
on the amount owed to class members under their restitution claim.
Oakwood did not file an opposition to the Plaintiffs' Motion.
Instead, it filed a Stipulation notifying the Court of its
agreement to pay the total amount of restitution requested. In a
separate motion, Oakwood asks for an order entering final judgment
on the Plaintiffs' claims and establishing a procedure for
distributing the restitution payments to the class members.
The Plaintiffs ask the Court to order a total of $72,780 in
restitution to the class members and issue additional
administrative and ministerial orders necessary to effectuate
restitution to the Class Members. They cite evidence showing that
the class consists of 1,055 unique members who were subject to
1,213 presale inspections and paid a total of $72,780 in inspection
fees. They argue that the class members are entitled to
reimbursement of the entire $72,780 paid -- not some lesser
percentage of that amount.
Judge Rose finds that the Plaintiffs' evidence and legal argument
is persuasive. Entering summary judgment for the Plaintiffs would
change the legal interests of the parties. The Plaintiffs would
have an enforceable judgment, instead of merely a representation
that Oakwood agrees to pay the requested restitution amount.
Despite the parties' extensive efforts to settle the matter, they
do not have a settlement agreement. A judgment in the Plaintiffs'
favor will provide class members a legal right to payment that they
do not currently have. The Judge will therefore summary judgment
for the Plaintiffs on their claim for return of $72,780 in presale
inspection fees to the 1,055 unique class members for a total of
1,213 presale inspections during the relevant period.
As to Oakwood's Motion for Order Setting Immediate Protocals, the
Judge holds he has no reason to believe that Oakwood would not
competently and honestly administer refunds to the class members.
He also finds that the Plaintiffs' list does contain substantially
more information than that referred to by Oakwood.
For these reasons, the Judge ordered the parties to retain a
neutral third-party administrator. In addition, the third-party
administrator must provide reasonable reports upon its activities
to the parties' counsel so that they may resolve and/or bring any
problems to the Court's attention, as necessary. The third-party
administrator must use the Plaintiffs' list of class members and
will be permitted to complete the refund process within the
timeline set forth in Oakwood's proposed entry.
The parties are further ordered to submit a revised proposed entry
and order, which reflects the Court's entry of summary judgment for
the Plaintiffs on the restitution amount and resolution of the
Plaintiffs' objections. As they will need to identify the
third-party administrator that will be handling the refund process,
the parties will have 14 days from the entry of the Order to submit
their revised proposed entry and order.
One final note, the parties have discussed the case as if the
resolution of the restitution amount and the Plaintiffs'
anticipated motion for attorneys' fees and costs were the only
remaining issues. The Plaintiffs' claims for damages on their
Section 1983 claims remain outstanding, although the Plaintiffs
might take the position that any damages on those claims would be
within the $60 per class member due on their restitution claim. If
the parties resolve the issue between themselves -- and it appears
that they already have -- they should incorporate that agreement
into the revised proposed entry and order to be submitted.
For the reasons stated, Judge Rose (i) granted the Plaintiffs'
Motion for Summary Judgment, (ii) granted in part Oakwood's Motion
for Order Setting Immediate Protocals.
A full-text copy of the Court's Oct. 9, 2018 Order is available at
https://is.gd/uuh14L from Leagle.com.
Jason Thompson & 2408 Hillview, LLC, Plaintiffs, represented by
Maurice A. Thompson -- mthompson@ohioconstitution.org
-- & Christopher P. Finney -- Chris@Finneylawfirm.com -- Finney
Law Firm, LLC.
City of Oakwood & Ethan Kroger, Defendants, represented by Lynnette
Dinkler, Dinkler Pregon LLC, Jamey T. Pregon, Dinkler Pregon, LLC &
Robert F. Jacques.
OCEAN PRIME: AdCloud Replaces Mayer & Lee as Class Rep
------------------------------------------------------
In the case, CAROLYN ROBERTS, ALEXANDER WOOD, and MAYER & LEE,
P.C., individually and on behalf of all other similarly situated
Plaintiffs, Plaintiffs. v. OCEAN PRIME, LLC, OCEAN PARTNERS LLC,
OCEAN PARTNERS SPE CORP., RESIDENTIAL MANAGEMENT GROUP, LLC d/b/a
DOUGLAS ELLIMAN PROPERTY MANAGEMENT, OCEAN CAR PARK, LLC d/b/a
GGMAC PARKING, LLC, BATTERY COMMERCIAL ASSOCIATES, LLC, and NEWMARK
KNIGHT FRANK GLOBAL MANAGEMENT SERVICES, LLC, Defendants, Docket
No. 150612/2013 (N.Y. Sup), Judge Lucy Billings of the New York
County Supreme Court granted the Plaintiffs' motion to withdraw
Mayer & Lee, P.C., as a named Plaintiff and a class representative
and to substitute in its place AdCloud, Inc., as a named Plaintiff
and a class representative.
The Plaintiffs, a class of residential and commercial tenants in
two buildings at 1 West Street and 17 Battery Place, New York
County, seek to recover damages caused by Superstorm Sandy in
October 2012 for which they claim the Defendants are responsible as
owners and managers of the buildings. The Plaintiffs allege that
the storm flooded the premises' basement and parking garage,
damaging the buildings' mechanical and electrical systems, and
causing 20,000 gallons of previously delivered heating oil to be
released into the water that entered the buildings, which damaged
their personal property and rendered the premises uninhabitable for
a month or more. The Plaintiffs claim the Defendants were
negligent in failing to take adequate measures to prepare the
premises for the storm and protect the premises from the storm.
In an order dated Jan. 21, 2016 , affirmed by the Appellate
Division, First Department, the Court granted the Plaintiffs'
motion to certify the class, finding that the Plaintiffs met the
requirements of C.P.L.R. Sections 901(a) and 902, and appointing
Plaintiffs Carolyn Roberts, Alexander Wood, and Mayer & Lee, P.C.,
as the class representatives.
The Plaintiffs now move to withdraw Mayer & Lee, P.C., as a named
Plaintiff and a class representative and to substitute in its place
AdCloud, Inc., principally owned by George Nassef, as a named
Plaintiff and a class representative. The Plaintiffs urge that the
opposition by Defendant Newmark Knight Frank Global Management
Services, LLC, to their motion be rejected because Newmark Knight
Frank filed its opposition one day late.
Judge Billing finds that the Plaintiffs were afforded ample time to
file a reply, did so, and have presented no evidence that the late
opposition prejudiced their preparation of their reply. She
therefore accepts the late opposition.
The Defendants maintain that Nassef, on behalf of AdCloud, Inc.,
does not meet the requirements for class certification. They also
claim that Plaintiff Mayer & Lee, P.C., may not withdraw as a class
representative because it has not explained or justified its
withdrawal.
The Judge finds that the Defendants present no other reasons why
AdCloud's or Nassef's defenses against Battery Commercial
Associates' action for nonpayment of rent or any other interests of
AdCloud conflict with the class' interests in pursuing damages for
the Defendants' negligence in the action. They also present no
authority requiring Mayer & Lee to justify its withdrawal. To the
contrary, the Court may not force an unwilling plaintiff to remain
a class representative, to the potential detriment of the class.
Insofar as Mayer & Lee has failed to respond to disclosure
requests, such conduct militates in favor of substituting another
class representative for Mayer & Lee, not against the result.
Consequently, for all the reasons she explained, Judge Billings
granted the Plaintiffs' motion to withdraw Mayer & Lee, P.C., as a
named Plaintiff and a class representative and to substitute in its
place AdCloud, Inc., as a named Plaintiff and a class
representative. Since Mayer & Lee is not discontinuing its claims
as a class member, the Judge granted the Plaintiffs' motion on the
condition that they produce Mayer & Lee, P.C., for its continued
deposition and respond to any outstanding requests for documents
regarding Mayer & Lee, insofar as the Defendants still seek that
disclosure.
Within seven days after entry of the Order, unless the parties
agree to a longer period, the Defendants will notify the Plaintiffs
in writing whether they still seek the continued deposition of
Mayer & Lee and what outstanding documents regarding Mayer & Lee
they still seek. The Plaintiffs will produce Mayer & Lee for its
continued deposition and respond to any outstanding document
requests regarding Mayer & Lee within 20 days after receipt of
notification that defendants still seek the deposition or
documents, unless the parties agree to a longer period. The
decision constitutes the Court's order.
A full-text copy of the Court's Oct. 12, 2018 Decision and Order is
available at https://is.gd/rkGVQw from Leagle.com.
ON MY OWN: Court Enters Show Cause Order in Hartley FLSA Suit
-------------------------------------------------------------
In the case, AMBER HARTLEY, et al., Plaintiffs, v. ON MY OWN
COMMUNITY SERVICES, et al., Defendants, Case No.
2:17-cv-00353-KJM-EFB (E.D. Cal.), Judge Kimberly J. Mueller of the
U.S. District Court for the Eastern District of California ordered
Plaintiff Janice Taylor to show cause within 14 days of the date of
the Order why her case should not be dismissed for her failure to
prosecute.
Hartley and Janice Taylor have brought the collective and class
action against Defendants On My Own Community Services, and On My
Own Independent Living Services. On Sept. 28, 2017, the counsel
for Ms. Taylor, Hoyer & Hicks, moved to withdraw from
representation of Ms. Taylor, citing that she "as failed to respond
to any and all of communications from counsel since approximately
April of that year. The court granted the motion on Nov. 6, 2017.
Since then, Ms. Taylor has proceeded pro se.
The clerk of Court attempted to serve Ms. Taylor with the Court's
order granting the motion to compel arbitration and stay
proceedings, but the mail was returned as undeliverable. On Sept.
7, 2018, Ms. Taylor was instructed to formally file a notice of
change of address, which she has yet to do. On Sept. 27, 2018, a
status conference was held before the Court, and Ms. Taylor was not
in attendance.
A full-text copy of the Court's Oct. 10, 2018 Order is available at
https://is.gd/MDLRn3 from Leagle.com.
Amber Hartley, Plaintiff, represented by Richard Anderson Hoyer --
rhoyer@hoyerlaw.com -- Hoyer & Hicks, Ryan Lee Hicks, Hoyer &
Hicks, Sean Desmond McHenry -- smchenry@hoyerlaw.com -- Hoyer &
Hicks & Walter L. Haines -- info@uelglaw.com -- United Employees
Law Group, PC.
Janice Taylor, Plaintiff, pro se.
On My Own Community Services & On My Own Independent Living
Services, Defendants, represented by Alden John Parker --
aparker@fisherphillips.com -- Fisher & Phillips, LLP & Katherine P.
Sandberg -- ksandberg@fisherphillips.com -- Fisher & Phillips LLP.
OPEN DOOR: $125K Settlement in "Jennings" FLSA Suit Has Approval
----------------------------------------------------------------
In the case, SHIKWANA JENNINGS, et al., Plaintiffs, v. OPEN DOOR
MARKETING, LLC, et al., Defendants, Case No. 15-cv-04080-KAW (N.D.
Cal.), Magistrate Judge Kandis A. Westmore of the U.S. District
Court for the Northern District of California granted the
Plaintiffs' motion for settlement approval
Jennings and Lisa Drake filed the putative class and collective
action against Defendants 20/20 Communications, Inc., Open Door
Marketing, Larry Clark, and Jerrimy Farris, alleging violations of
the Fair Labor Standards Act ("FLSA") and various California labor
laws.
Pending before the Court is the Plaintiffs' unopposed motion for
settlement approval, which seeks to settle the claims of the
Plaintiffs and the 176 individuals who opted in to the collective
action, as well as Plaintiff Jennings's representative claim for
civil penalties under the Private Attorneys General Act ("PAGA").
Under the terms of the settlement agreement, Defendant 20/20 agrees
to pay $125,000. Of this amount, the Plaintiff's counsel intends
to seek an award of $25,000, or 20% to cover both attorneys' fees
and costs. The settlement amount includes a $5,000 enhancement
payment to Plaintiff Jennings and a $3,000 enhancement payment to
Plaintiff Drake. Finally, the settlement amount includes $10,000
in PAGA penalties; $7,500 will go to the California Labor Workforce
Development Agency and $2,500 will be divided amongst the
California opt-in Plaintiffs, based on the number of weeks worked.
This leaves a net amount of $82,000 for distribution to the opt-in
Plaintiffs.
The settlement will be allocated based on the number of weeks
worked. Specifically, the Plaintiffs' counsel will calculate the
number of weeks each opt-in Plaintiff claims to have worked for the
Defendants in California and Nevada. Each week worked in Nevada
will count as one "share," and each week in California will
constitute two "shares." The total number of shares will be
calculated. The total shares of each individual opt-in Plaintiff
will then be divided by the total number of shares to determine the
percent of the net settlement amount to which the individual is
entitled.
The opt-in Plaintiffs will have 180 days to negotiate the checks.
The uncashed checks will be transferred to the California
Department of Industrial Relations - Unclaimed Wage Fund for the
California opt-in Plaintiffs, and to the Nevada Unclaimed Property
Division for the Nevada opt-in Plaintiffs.
After the hearing on the Plaintiff's motion, the parties agreed to
make certain changes to the Settlement Agreement.
First, the parties agreed to modify the communications section.
Originally, this section provided that the parties and counsel will
not have any communications regarding the settlement with any
person, subject to certain limited exceptions. The parties have
limited the clause to act more as a non-publicity section, removing
the prohibition on discussing the litigation or settlement with any
person.
Second, the parties have limited the scope of the released claims.
The Settlement Agreement initially sought to release all claims
pled in the operative complaint, as well as claims that could have
been pled in the operative complaint based on the factual
allegations in that complaint, including but not limited to any
claims under state or federal statutes or common law regarding the
payment of wages, including claims arising under the FLSA and any
in similar state law. The parties have since agreed to limit the
scope of the release in their settlement agreement to the claims
asserted in the operative complaint.
Having considered the papers filed by the parties, the relevant
legal authority, and the arguments advanced by counsel at the Aug.
16, 2018 hearing, Magistrate Judge Westmore granted the Plaintiffs'
motion for settlement approval, as modified by the parties. Within
60 days of the date of the order, the Plaintiffs will file either a
stipulation of dismissal of the entire case or a status report
regarding the execution of the Settlement Agreement.
A full-text copy of the Court's Oct. 3, 2018 Order is available at
https://is.gd/LSNqsg from Leagle.com.
Carlos Conde, individually and on behalf of all others similarly
situated, Shikwana Jennings, individually and on behalf of all
others similarly situated & Lisa Drake, individually and on behalf
of all others similarly situated, Plaintiffs, represented by
Shannon Liss-Riordan -- sliss@llrlaw.com -- Lichten & Liss-Riordan,
P.C.
Open Door Marketing, LLC, Larry Dale Clark & Jerrimy Farris,
Defendants, represented by Kristin Alexandria Smith --
ksmith@burnhambrown.com -- Law Offices of Burnham Brown & Michael
Leslie Thompson -- mthompson@lehrmiddlebrooks.com -- Lehr
Middlebrooks Vreeland and Thompson, P.C.
20/20 Communications, Inc., Defendant, represented by Christopher
William Decker -- christopher.decker@ogletree.com -- Ogletree
Deakins Nash Smoak & Stewart PC & Wendy V. Miller --
wendy.miller@ogletree.com -- Ogletree Deakins Law Firm, pro hac
vice.
PETSMART INC: $700K Settlement in Lepine Suit Has Final Approval
----------------------------------------------------------------
In the case, DEBORAH LEPINE, individually and on behalf of all
others similarly situated, Plaintiff, v. PETSMART, INC, a Delaware
Corporation, Defendant, Case No. 3:17-cv-05488-BHS (W.D. Wash.),
Judge Benjamin H. Settle of the U.S. District Court for the Western
District of Washington, Tacoma, granted both the Plaintiff's Motion
for Final Approval and the Plaintiff's Motion for Approval of Class
Counsel's Fees and Costs, and Enhancement Award for Class
Representative.
The Settlement was granted preliminary approval on July 26, 2018.
Now, the Judge made final the conditional class certification
contained in the Preliminary Approval Order, and thus made final
for purposes of the Settlement Agreement the certification,
pursuant to FRCP 23(g)(1)(A), of the class whose members consist of
all current and former PetSmart employees paid Groom Pay for work
performed in Washington State during at least one pay period
between June 26, 2014 and the July 26, 2018.
Having found that the Settlement Agreement is fair, reasonable, and
adequate, the Judge finally and unconditionally approved the
Settlement Agreement pursuant to FRCP 23(e)(1). Specifically, he
approved (i) the Settlement Amount of $700,000 as specified in and
subject to the terms of the Settlement Agreement; (ii) the
distribution of the Net Class Fund to Participating Class Members
in the manner specified in and subject to the terms of the
Settlement Agreement; (iii) the application for Class
Representative Award of $5,000 to Plaintiff/Class Representative
Deborah LePine to be paid from the Settlement Amount, subject to
the terms of the Settlement Agreement; (iv) the Class Counsel's
requested fees award of $210,000 which is 30% of, and to be paid
from, the Settlement Amount subject to the terms of the Settlement
Agreement; (v) the Class Counsel's request for reimbursement of
litigation expenses of $7,468.36 to be paid from the Settlement
Amount, subject to the terms of the Settlement Agreement; and (vi)
the payment to Simpluris, Inc., the Settlement Administrator, of
Settlement Administration Costs as incurred, in the amount of costs
and fees actually incurred and documented to the parties'
satisfaction, not to exceed $7,300 to be paid from the Settlement
Amount, subject to the terms of the Settlement Agreement.
Judge Settle ordered that, following the Settlement Effective Date
as defined in the Settlement Agreement, the Parties and the
Settlement Administrator will carry out the following
implementation schedule for further actions and proceedings:
a. Within 14 calendar days of Effective Date -- Settlement
Deadline for the Defendant to transfer Settlement Fund to the
Settlement Administrator
b. Within 21 calendar days of Effective Date -- Settlement
Deadline for Settlement Administrator to pay Attorneys' fees and
costs to Class Counsel; and Class Representative Award as specified
to the Plaintiff/Class Representative; Settlement payments to all
participating Settlement Class Members
c. Within 30 calendar days of Effective Date -- Settlement
Deadline for Settlement Administrator to issue Settlement payments
to the participating Settlement Class Members
d. 90 days after checks are mailed by the Settlement
Administrator -- Uncashed check are voided and funds will be
transmitted to the Washington State Department of Revenue Unclaimed
Property Fund in the name of the Settlement Class Members
The Judge dismissed with prejudice the action.
A full-text copy of the Court's Oct. 10, 2018 Order is available at
https://is.gd/29uVDt from Leagle.com.
Deborah LePine, individually and on behalf of all others similarly
situated, Plaintiff, represented by T. David Copley --
dcopley@kellerrohrback.com -- KELLER ROHRBACK, Tana Lin --
tlin@KellerRohrback.com -- KELLER ROHRBACK LLP & Julian Hammond --
jhammmond@hammondlawpc.com -- HAMMOND LAW, P.C.
PetSmart, Inc, a Delaware Corporation, Defendant, represented by
Chelsea D. Petersen -- CDPetersen@perkinscoie.com -- PERKINS COIE &
Emily A. Bushaw -- EBushaw@perkinscoie.com -- PERKINS COIE.
PREMIER NUTRITION: Reaches $9MM Class Action Settlement
-------------------------------------------------------
The following is being released by the Settlement Administrator of
the settlement reached in Gregorio v. Premier Nutrition
Corporation, No. 1:17-cv-05987-AT (S.D.N.Y.).
Premier Nutrition Corporation ("Defendant") and Plaintiff announced
a $9 million settlement to resolve a nationwide class action
lawsuit alleging that Defendant's Premier Protein ready-to-drink
protein shakes may not include as much protein as their product
labeling and advertising indicate. Defendant denies that it did
anything wrong. The Court has not made any ruling on Defendant's
liability, if any. With some exclusions, the settlement includes
all persons in the United States who purchased Premier Protein
ready-to-drink protein shakes from August 8, 2011 to October 12,
2018.
If the United States District Court for the Southern District of
New York approves the settlement, Defendant will pay $9 million
into a Settlement Fund to pay Settlement benefits to Class Members,
a service award to the Plaintiff, Class Counsel's fees, and costs
relating to settlement administration. Class Members who file a
qualified claim with valid proof of purchase will be entitled to $1
per purchased shake up to $40.00 in cash, subject to pro rata
adjustment. Class Members without proof of purchase who file valid
claims will be entitled to $0.50 per purchased shake up to $20.00
in cash, subject to pro rata adjustment.
Class Members may download a claim form or submit claims online at
www.ProteinShakeSettlement.com. Claims submitted electronically
online must be filed by December 20, 2018, and hard copy claim
forms must be postmarked by that date.
The Court will hold a hearing on January 17, 2019 to consider
whether to approve the settlement. The Court may adjourn the date
and time of this hearing at any time without further notice. Class
Members may contact Class Counsel at (646) 837-7150 to confirm the
date and time of the hearing. Class Members have until December
11, 2018 to exclude themselves from, or object to, the settlement.
[GN]
PREMIER PALLET: T. White FLSA Suit Settlement Has Court Approval
----------------------------------------------------------------
In the case, THAD WHITE, on behalf of himself and other similarly
situated, PLAINTIFFS, v. PREMIER PALLET AND RECYCLING, INC.,
DEFENDANT, Case No. 5:18-cv-1460 (N.D. Ohio), Judge Sara Lioi of
the U.S. District Court for the Northern District of Ohio, Eastern
Division, granted the parties' Joint Proposed Stipulated Order for
Approval of Settlement and Dismissal with Prejudice.
White filed a collective action complaint against the Defendant,
alleging that it violated the Fair Labor Standards Act ("FLSA") by
failing to pay overtime to him and other similarly-situated current
and former piece-rate employees. Plaintiff Jerry Toole opted-in to
become a Plaintiff class member. In its answer, the Defendant
denied that the Plaintiffs were entitled to any additional wages,
and denied that it violated the FLSA.
On Sept. 18, 2018, the parties participated in a mediation before
Magistrate Judge George J. Limbert, at which the parties agreed on
a settlement resolving the Plaintiffs' claims under the FLSA. Now
before the Court is the parties' Joint Motion, supported by the
Declaration of Hans. A. Nilges, filed under seal with leave of
Court.
Judge Lioi finds that the divergent views of the facts and the law
presented bona fide disputes that, had the parties not reached a
settlement, would have necessitated resolution by the Court and/or
a jury. Further, having reviewed the terms of the settlement in
camera, she finds that the settlement represents a fair and
reasonable resolution to bona fide disputes.
The Judge also finds that the award of attorney's fees to the
Plaintiffs' counsel, which is supported by a declaration by the
counsel, is reasonable, taking into consideration the course of
proceedings and the successful outcome on behalf of the members of
the collective. Moreover, she notes that the attorney's fee award
amount aligns with the amounts awarded in other FLSA collective
action cases in the Sixth Circuit.
Finally, she finds that both Plaintiffs White and Toole played an
active role in assisting the class counsel. As such, she will
approve the modest service awards to the representative Plaintiffs
in recognition of their service in the action.
For these reasons, Judge Lioi approved the settlement agreement,
including the award of attorneys' fees. She directed that the
Confidential Settlement Agreement and Release supplied in camera to
the Court be filed under seal as an attachment to the Memorandum
Opinion and Order. All claims in the lawsuit are dismissed with
prejudice, with each party to bear costs, expenses, and fees as per
the terms of the settlement agreement.
A full-text copy of the Court's Oct. 10, 2018 Memorandum Opinion
and Order is available at https://is.gd/XDenu1 from Leagle.com.
Thad White, on behalf of himself and all others similarly situated,
Plaintiff, represented by Shannon M. Draher, Nilges Draher & Hans
A. Nilges, Nilges Draher.
Premier Pallet and Recycling, Inc., Defendant, represented by Karen
Soehnlen McQueen -- kmcqueen@kwgd.com -- Krugliak, Wilkins,
Griffiths & Dougherty & Marcus L. Wainwright --
mwainwright@kwgd.com -- Krugliak, Wilkins, Griffiths & Dougherty.
PRETIUM RESOURCES: Pomerantz Law Files Class Action
---------------------------------------------------
Pomerantz LLP disclosed that a class action lawsuit has been filed
against Pretium Resources, Inc. ("Pretium" or the "Company") (NYSE:
PVG) and certain of its officers. The class action, filed in
United States District Court, Southern District of New York, and
index under 18-cv-09624, is on behalf of a class consisting of all
persons and entities, other than Defendants and their affiliates,
who purchased or otherwise acquired shares of Pretium securities
between July 21, 2016, and September 6, 2018, inclusive (the "Class
Period"), seeking to recover damages caused by Defendants'
violations of the federal securities laws and to pursue remedies
under Sections 10(b) and 20(a) of the Securities Exchange Act of
1934 (the "Exchange Act") and Rule 10b-5 promulgated thereunder,
against the Company and certain of its top officials.
If you are a shareholder who purchased Pretium securities between
July 21, 2016, and September 6, 2018, both dates inclusive, you
have until November 6, 2018, to ask the Court to appoint you as
Lead Plaintiff for the class. A copy of the Complaint can be
obtained at www.pomerantzlaw.com. To discuss this action, contact
Robert S. Willoughby at rswilloughby@pomlaw.com or 888.476.6529 (or
888.4-POMLAW), toll-free, Ext. 9980. Those who inquire by e-mail
are encouraged to include their mailing address, telephone number,
and the number of shares purchased.
Pretium acquires, explores, and develops precious metal resource
properties in the America.
The Brucejack Project, or Brucejack Mine, is a mine located in
northwestern British Columbia and is comprised of 4 mining leases
and 6 mineral claims currently totaling 3,304 hectares in area. The
Valley of the Kings zone is the "heart of the Brucejack Project."
This is the only material mineral project that Pretium is required
to report under Canadian reporting regulations governing mineral
properties. Accordingly, the Brucejack Project is essential to
Pretium's business and to the public market valuation of the
business.
Throughout the Class Period, Defendants made materially false and
misleading statements regarding the Company's business, operational
and compliance policies. Specifically, Defendants made false and/or
misleading statements and/or failed to disclose that: (i) that the
Brucejack Project is not a high-grade, high-output mine; and (ii)
that, as a result of the foregoing, Defendants' positive statements
about the Company's business, operations, and prospects were
materially false and/or misleading and/or lacked a reasonable
basis.
On January 23, 2018, the Company disclosed lower gold production
for the Brucejack Mine than previously projected, and also delayed
achievement of steady-state gold production and operation of the
grade control program.
On this news, the Company's share price fell $2.86 per share, or
over 26%, to close at $7.93 per share on January 23, 2018.
On September 6, 2018, Viceroy Research published a report entitled
"Pretium Resources -- digging up dirt," alleging, among other
things, that the Company's "reported grades and reserves are
significantly inflated, a much greater amount of waste is being
dumped into local lakes, and more explosives are being utilized."
The report further alleged that "management is scrambling to find
consistent, high-grade ore to maintain the charade that its debt
and equity are viable."
On this news, the Company's share price fell $0.77 per share, or
approximately 10%, to close at $6.94 per share on September 6,
2018.
Robert S. Willoughby, Esq.
Pomerantz LLP
Telephone: 888-476-6529 ext. 9980
Email: rswilloughby@pomlaw.com [GN]
PROGRESSIONS BEHAVIORAL: Court Certifies Class in Charles FLSA Suit
-------------------------------------------------------------------
In the case, TRACY CHARLES, ET AL., v. PROGRESSIONS BEHAVIORAL
HEALTH SERVICES, INC., ET AL, Civil Action No. 17-2439 (E.D. Pa.),
Judge John R. Padova of the U.S. District Court for the Eastern
District of Pennsylvania granted both (i) the Plaintiffs' Motion to
Proceed as a Collective Action and Facilitate Notice; and (ii) the
Plaintiffs' Motion for Equitable Tolling.
In this putative collective action brought pursuant to the Fair
Labor Standards Act ("FLSA"), Plaintiffs Charles, Shanna Griffin,
and Antonio Simon assert that their employers, Defendants
Progressions Behavioral Health Services, Inc. and Progressions
Companies, Inc., failed to pay them overtime wages to which they
were entitled.
They work for the Defendants both as Behavioral Health Workers
("BHWs") and Therapeutic Staff Support ("TSS"). As BHWs, the
Plaintiffs provide clinical behavioral health services for clients
in the Defendants' School Therapeutic Services Department,
assisting clinicians in providing behavioral modification and
crisis management services. As TSS, the Plaintiffs provide
clinical behavioral health services for clients of the Defendants'
Behavioral Health Rehabilitation Services Department, helping to
implement treatment plans.
During their employment, the Plaintiffs have regularly worked more
than 40 hours per week, but have not been paid overtime wages of
1.5 times their regular rate of pay for those hours they worked in
excess of forty per week. They assert that there were two reasons
for the Defendants' failure to pay them overtime.
First, the Defendants did not aggregate the Plaintiffs' hours in
their two positions (BHW and TSS) but, instead, calculated their
hours in the two positions separately for overtime purposes.
Second, the Defendants did not pay the Plaintiffs for certain work
it deemed "non-billable," such as time spent traveling, mandatory
job training, completing paperwork, submitting reports on the
Defendants' client management software, and interacting with
clients by phone or email.
Because the Defendants failed to pay Plaintiffs for non-billable
time, the Plaintiffs' non-billable time was not added to the total
hours worked for overtime purposes, and the Plaintiffs were
deprived of overtime pay for those weeks in which their billable
and non-billable hours combined exceeded 40 hours. The Plaintiffs
assert that neither of these reasons for denying them overtime pay
was legitimate and that Plaintiffs were therefore denied overtime
pay to which they were entitled under the FLSA.
Currently pending are (1) the Plaintiffs' Motion to Proceed as a
Collective Action and Facilitate Notice under 29 U.S.C. Section
216(b), in which they seek conditional certification as a
collective under the FLSA and ask that notice of the action be sent
to similarly situated persons; and (2) the Plaintiffs' Motion for
Equitable Tolling.
The Plaintiffs seek to maintain the action alleging FLSA violations
against the Defendants on behalf of the FLSA Collective defined as
all persons presently or formerly employed by the Defendants in the
positions of Behavioral Health Worker and/or Therapeutic Staff
Support who worked at least 32 hours of billable work in two or
more workweeks from May 30, 2014; to the present.
The Court held a Hearing on the Motion to Proceed as a Collective
Action and Facilitate Notice on Sept. 5, 2018.
Judge Padova concludes that, to the extent that the proposed
collective includes employees working as BHWs or TSS, it is
properly defined to identify similarly-situated individuals, and he
rejects Defendants' argument to the contrary. The Defendants
primarily argue that the proposed collective is not limited to
individuals who are "similarly situated" to the Plaintiffs because
it will include individuals who worked exclusively as BHWs or TSS,
not only those who worked simultaneously as BHWs and TSS as all
three Plaintiffs did.
The Judge also concludes that the combination of court delay and
the Defendants' actions constitute extraordinary circumstances that
make equitable tolling appropriate to ensure that the potential
opt-in Plaintiffs are permitted to pursue FLSA claims that
circumstances may have unfairly prevented them from recognizing and
pursuing. He will therefore equitably toll the statute of
limitations on the FLSA claim beginning on Feb. 19, 2018, when the
Motion for Conditional Certification was fully briefed, and ending
on the date of the Memorandum and Order.
For the foregoing reasons, Judge Padovan granted both (i) the
Plaintiffs' Motion to Proceed as a Collective Action and Facilitate
Notice; and (ii) the Plaintiffs' Motion for Equitable Tolling. An
appropriate Order follows.
A full-text copy of the Court's Oct. 9, 2018 Memorandum is
available at https://is.gd/2DkSdn from Leagle.com.
TRACY CHARLES, SHANNA GRIFFIN & ANTONIO SIMON, Plaintiffs,
represented by MICHAEL PATRICK MURPHY, Jr. --
murphy@phillyemploymentlawyer.com -- MURPHY LAW GROUP LLC & MICHAEL
GROH -- mgroh@phillyemploymentlawyer.com -- MURPHY LAW GROUP, LLC.
PROGRESSIONS BEHAVIORAL HEALTH SERVICES, INC., Defendant,
represented by LEAH A. LEWIS -- llewis@rmh-law.com -- REILLY
JANICZEK & MCDEVITT, MOLLY C. REILLY -- mreilly@rmh-law.com --
REILLY JANICZEK & MCDEVITT, PC & SUSAN M. VALINIS --
svalinis@rmh-law.com -- REILLY JANICZEK & MCDEVITT P.C..
PROGRESSIONS COMPANIES, INC., Defendant, represented by MOLLY C.
REILLY, REILLY JANICZEK & MCDEVITT, PC & SUSAN M. VALINIS, REILLY
JANICZEK & MCDEVITT P.C..
RAYMOND JAMES: Class of Customers Certified in Brink Suit
---------------------------------------------------------
The Hon. William P. Dimitrouleas granted the Plaintiff's Motion for
Class Certification, and to Appoint Class Representative and Class
Counsel in the lawsuit captioned JYLL BRINK, on her own behalf, and
on behalf of those similarly situated v. RAYMOND JAMES &
ASSOCIATES, INC., Case No. 0:15-cv-60334-WPD (S.D. Fla.).
The Court certifies a class consisting of:
All former and current Customers of Raymond James and
Associates, Inc. ("RJA") in the United States and its
territories who executed a "Passport Agreement" and owned a
Passport Account, and from whom RJA deducted, retained,
and/or charged a per transaction "Processing Fee" or "Misc.
Fee" on transactions involving "Fee Investments" at any time
(a) within 4 years preceding the filing of this lawsuit for
the negligence count; and/or (b) within 5 years of filing
this lawsuit for the breach of contract count (the "Class
Period"). Excluded from the Class are RJA, its parents,
subsidiaries, affiliates, officers and directors, any entity
in which RJA has a controlling interest, all Customers who
make a timely selection to be excluded, any Customer whose
financial advisor paid all or part of the Processing Fee on
any of their trades, governmental entities, all judges
assigned to hear any aspect of this litigation, as well as
their immediate family members, and any of the foregoing's
legal heirs and assigns.
Jyll Brink is certified as representative of the Class. Richman
Greer, P.A., Blum Law Group, Herskowitz Shapiro, PLLC, Sodhi
Spoont, PLLC, and Hanley Law, P.A., are certified as Class
Counsel.
The parties are directed to jointly file for approval by the Court
a proposed notice to Class members; alternatively, if the parties
cannot agree on a proposed notice, the Plaintiff shall file a
proposed notice, and the Defendant shall file any objections within
three days of the filing of the Plaintiff's proposed notice.[CC]
RHODE ISLAND: Settlement with Drivers' Union Has Prelim Approval
----------------------------------------------------------------
In the case, DIVISION 618, AMALGAMATED TRANSIT UNION, KEVIN COLE ET
AL., Plaintiffs, v. RHODE ISLAND PUBLIC TRANSIT AUTHORITY,
Defendant, C.A. No. 18-226-WES-PAS (D. R.I.), Judge William E.
Smith of the U.S. District Court for the District of Rhode Island
granted the parties' Motion for Certification of Settlement Class
and Preliminary Certification of Fair Labor Standards Act
Collective Action, and for Preliminary Approval of Proposed
Settlement.
The Judge recognizes that the parties have stipulated that the
individuals who make up both classes are in the Union's bargaining
unit and were employed as full-time bus operators for Rhode Island
Public Transit Authority ("RIPTA") between April 24, 2015 and the
date of the Settlement Agreement and General Release.
The Judge finds that the proposed settlement, as set forth in the
parties' Settlement Agreement, appears to be fair, reasonable, and
adequate. The settlement appears to have been entered into at
arm's-length by highly experienced and informed counsel. Also, the
factors supporting approval of a Rule 23 settlement of state wage
and hour claims may support approval of a collective action
settlement of FLSA claims. Therefore, he preliminarily approved
the proposed settlement.
The Judge certified the Rule 23 settlement class defined as all
individuals in the Union's bargaining unit who were employed as
full-time RIPTA bus operators and worked at any time between April
24, 2015 and the date of the Settlement Agreement. The Judge also
appointed Division 618, Amalgamated Transit Union and Kevin Cole,
James Thornley, and Tracey Blackledge as the class representatives;
and Gerard P. Cobleigh of Cobleigh and Giacobbe, Warwick, RI and
Douglas Taylor of Gromfine, Taylor & Tyler, P.C., Alexandria, VA as
the class counsel.
He also approved the parties' proposed schedule for dissemination
of the Notice, requesting exclusion from the Settlement Class or
objecting to the settlement, submitting papers in connection with
final approval, the deadline by which claim forms must be
postmarked, and the date of Final Approval Hearing, as follows:
i. Notice date: no more than 50 days after the entry of the
order preliminarily approving the settlement
ii. Deadline for returning requests for exclusion and filing
objections: 21 days prior to the Final Approval Hearing
iii. Deadline by which claim forms must be postmarked: 30 days
after the Final Approval Hearing
A Final Approval Hearing is set for Jan. 4, 2019 at 11:00 a.m. Any
member of the class that has not filed a timely request for
exclusion may appear at the final approval hearing in person or by
counsel and may be heard, to the extent allowed by the Court,
either in support of or in opposition to the fairness,
reasonableness, and adequacy of the Settlement Agreement.
The date and time of the Final Approval Hearing will be set forth
in the Notice to potential members, but will be subject to
adjournment by the Court without further notice to the members of
the class other than that which may be posted at the Court, on the
Court's website, and on the Class Counsel's website.
A full-text copy of the Court's Oct. 10, 2018 Order is available at
https://is.gd/tLKnOV from Leagle.com.
Kevin Cole, James Thornley, Tracey Blackledge & Amalgamated Transit
Union, Division 618, Plaintiffs, represented by Gerard P. Cobleigh,
Cobleigh & Giacobbe & Douglas Taylor, Gromfine, Taylor & Tyler,
P.C, pro hac vice.
Rhode Island Public Transit Authority, Defendant, represented by
Joseph D. Whelan -- jwhelan@whelancorrente.com -- Whelan, Corrente,
Flanders, Kinder & Siket LLP & Christopher N. Dawson --
cdawson@whelancorrente.com -- Whelan, Corrente, Flanders, Kinder &
Siket LLP.
SAVANNAH LAW SCHOOL: Cliff Suit Remanded to Georgia State Court
---------------------------------------------------------------
In the case, CAITLYN CLIFF; GEORGE DICKENS, III; MELANIE FENLEY;
ZACHARY GRUBER; PETER LEYH; MYLEE McKINNEY; and CASEY TUGGLE,
Individually and on behalf of others similarly situated,
Plaintiffs, v. SAVANNAH LAW SCHOOL, LLC, et al., Defendants, Civil
Action No. 4:18-cv-104 (S.D. Ga.), Judge R. Stan Baker of the U.S.
District Court for the Southern District of Georgia, Savannah
Division, (i) granted the Plaintiffs' Motion to Remand this case to
the State Court of Chatham County; (ii) dismissed as moot the
Defendants' Motion to Dismiss; and (iii) denied the Plaintiffs'
request for expenses including attorney fees.
The Plaintiffs filed the putative class action in the State Court
of Chatham County, Georgia against the Defendants on March 23,
2018, after Defendant Savannah Law School announced its closure.
The Plaintiffs defined their class as all persons who are citizens
of Georgia and who were enrolled in classes at Savannah Law School
during the 2017-2018 academic year or had applied for admission to
Savannah Law School for the Fall 2018 semester.
Then Plaintiffs allege numerous injuries caused by the closing of
the school and bring claims of negligence, breach of contract,
negligent misrepresentation, and civil conspiracy.
The Defendants are citizens of the State of Georgia and removed the
case to the Court pursuant to 28 U.S.C. Sections 1441 and 1332 on
May 3, 2018. In their Notice of Removal, the Defendants put forth
evidence that a named Plaintiff, Peter Leyh, is a citizen of New
Jersey, which they contend gave them a jurisdictional basis to
remove the case.
The Plaintiffs filed their Motion to Remand the case to the State
Court of Chatham County soon thereafter. On Oct. 9, 2018, the
parties presented arguments in a hearing before the Court on
whether the action should remain in federal court or be remanded to
state court.
Judge Baker finds that he cannot deviate from the unambiguous text
of CAFA or ignore the text of the Plaintiffs' Complaint. The plain
language of CAFA requires minimal diversity as to the proposed
class to remain in federal court and the plain language of the
Plaintiffs' Complaint reveals that no such diversity exists.
Accordingly, he will grant the Plaintiffs' Motion to Remand.
As to Plaintiffs' request for attorney fees, the Judge finds no
basis for awarding expenses including attorney fees. The case
presented a complex question of law on which neither the Eleventh
Circuit Court of Appeals nor the Supreme Court has ruled. Without
a case directly addressing the availability of CAFA jurisdiction
when a named Plaintiff is a non-citizen, the Defendants were able
to argue in good faith that the Court should look beyond the
Plaintiffs' class description to find minimal diversity.
Further, the Judge finds that the Defendants had a good faith basis
for believing Mr. Leyh is a citizen of New Jersey. Awarding
attorney fees in such an instance would discourage attorneys from
zealously representing their clients with creative arguments on
undecided issues of law. Accordingly, he will deny the Plaintiffs'
Motion for Attorney Fees.
For all the stated reasons, Judge Smith (i) granted the Plaintiffs'
Motion to Remand; (ii) dismissed as moot the Defendants' Motion to
Dismiss; and (iii) remanded the case back to the State Court of
Chatham County. However, the Judge denied the Plaintiffs' request
for expenses including attorney fees. He directed the Clerk of
Court to enter the appropriate judgment of remand and to close the
case.
A full-text copy of the Court's Oct. 12, 2018 Order is available at
https://is.gd/TOmyXR from Leagle.com.
Caitlyn Cliff, Individually and on behalf of all others similarly
situated, George Dickens, III, Individually and on behalf of all
others similarly situated, Melanie Fenley, Individually and on
behalf of all others similarly situated, Zachary Gruber,
Individually and on behalf of all others similarly situated, Peter
Leyh, Individually and on behalf of all others similarly situated,
Mylee McKinney, Individually and on behalf of all others similarly
situated & Casey Tuggle, Individually and on behalf of all others
similarly situated, Plaintiffs, represented by Jeffrey R. Harris,
Harris Penn Lowry, LLP, Stephen G. Lowry, Harris Lowry Manton LLP,
Madeline Elizabeth McNeeley, Harris Lowry Manton LLP & Thomas
Peyton Bell, Harris, Lowry & Manton, LLP.
Savannah Law School, LLC, John Marshall Law School, LLC, John
Marshall Law School, John Marshall University, John Marshall
Online, Inc. & JMLS 1422, LLC, Defendants, represented by Todd
Michael Baiad -- tmbaiad@bouhan.com -- Bouhan Falligant, LLP.
SCHELL & KAMPETER: Bid to Dismiss Briefing Sched in Grossman Issued
-------------------------------------------------------------------
In the case, MARTIN E. GROSSMAN, and RICHARD DAVID CLASSICK, JR.
Individually and on Behalf of All Others Similarly Situated,
Plaintiffs, v. SCHELL & KAMPETER, INC. d/b/a DIAMOND PET FOODS, and
DIAMOND PET FOODS INC., Defendants, Case No. 2:18-cv-02344-JAM-AC
(E.D. Cal.), Judge John A. Mendez of the U.S. District Court for
the Eastern District of California has entered an order (i) on the
filing of the Second Amended Complaint and (ii) setting Motion to
Dismiss briefing schedule.
On Aug.28, 2018, Grossman filed his Class Action Complaint in
federal court against the Defendant that included a claim for
violations of the California's Consumers Legal Remedies Act
("CLRA") and requested injunctive and equitable relief pursuant to
the CLRA. On Sept. 5, 2018, he filed an amended complaint, adding
Richard David Classick, Jr. as a named Plaintiff.
The Defendant's current deadline to respond to the Plaintiffs'
Amended Complaint is Oct. 18, 2018.
On Sept. 18, 2018, the Plaintiffs provided notice to the Defendant
of alleged violations of CLRA and requested relief within 30 days
of receipt, or the Plaintiffs would subsequently request damages
pursuant to the CLRA. They anticipate seeking to further amend the
complaint to add a claim for damages under the CLRA after the
expiration of the 30-day notice period.
The Counsel for the Parties conferred, and the Defendant does not
oppose the filing of the Plaintiffs' Second Amended Complaint,
without waiver of any and all objections Defendant may have to the
CLRA letter, including to the timeliness of the CLRA letter.
The Parties further conferred regarding a briefing schedule for the
Defendant's anticipated motion to dismiss the Plaintiffs' Second
Amended Complaint.
Therefore, the Parties agreed and stipulated, and Judge Mendez
approved that:
a. The Plaintiffs will file and serve their Second Amended
Complaint on Oct. 19, 2018;
b. The Defendant will file and serve its Motion to Dismiss
Plaintiffs' Second Amended Complaint on Nov. 20, 2018;
c. The Plaintiffs will file and serve their opposition to the
Defendants' Motion to Dismiss on Dec. 20, 2018;
d. The Defendant will file and serve a reply in support of its
Motion to Dismiss on Jan. 16, 2019; and
e. The Defendant's Motion to Dismiss will be set for hearing
Feb. 5, 2019 at 1:30 p.m.
A full-text copy of the Court's Oct. 12, 2018 Order is available at
https://is.gd/fFBaJX from Leagle.com.
Martin E. Grossman, Individually and on Behalf of All Others
Similarly Situated & Richard David Classick, Jr., Plaintiffs,
represented by Steven M. McKany -- smckany@robbinsarroyo.com --
Robbins Arroyo LLP & Rebecca A. Peterson -- rapeterson@locklaw.com
-- Lockridge Grindal Nauen P.L.L.P.
Schell & Kampeter, Inc., also known as Diamond Pet Foods,
Defendant, represented by Amir M. Nassihi -- anassihi@shb.com --
Shook Hardy and Bacon LLP & Emily M. Weissenberger --
eweissenberger@shb.com -- Shook Hardy & Bacon.
SCOTT FARMS: Certification of FLSA Class Sought in Mondragon Suit
-----------------------------------------------------------------
Plaintiffs Renato Romero Acuna and Abdon Quirasco Sixteco move the
Court for an order conditionally certifying the action captioned
RICARDO MONDRAGON, EUSTORGIO ESPINOBARROS FELICIANO, JUAN
CONTRERAS, CUTBERTO ORTIZ HERNANDEZ, RAMON ORTIZ HERNANDEZ,
ALEJANDRO JIMENEZ GONZALEZ, RENATO ROMERO ACUNA, JOSE TAPIA,
ANASTACIO LOPEZ SOLIS, and ABDON QUIRASCO SIXTECO, on behalf of
themselves and all other similarly situated person v. SCOTT FARMS,
INC., ALICE H. SCOTT LINWOOD H. SCOTT, JR., LINWOOD H. SCOTT III,
DEWEY R. SCOTT, JFT HARVESTING INC., JUAN F. TORRES OASIS
HARVESTING, INC., and RAMIRO B. TORRES, Case No. 5:17-cv-00356-FL
(E.D.N.C.), as a collective action pursuant to the Fair Labor
Standards Act for:
Plaintiffs and all other similarly situated persons who,
during the three year period prior to the date on which such
person files a Consent to Join in this action pursuant to
29 U.S.C. Section216(b), and ending with the date final
judgment is entered, were not paid at the required overtime
wage rate when they worked more than 40 hours in any
workweek unloading, storing, packing, and/or processing
sweet potatoes in the storage facilities or packinghouses of
the Scott Defendants when any part of that work involved
sweet potatoes that were and are produced by person(s) or
entities other than the Scott Defendants. ("FLSA Collective
Action").
Messrs. Acuna and Sixteco also move for an order:
1. approving the mailing of the attached Notice and Consent to
Join forms by Plaintiffs Renato Romero Acuna and Abdon
Quirasco Sixteco, within two weeks from the date on which
the Defendants provide contact information for the persons
whom the Court conditionally certifies as members of the
collective action under 29 U.S.C. Section 216(b), to the
last known address of each putative member of the
collective action;
2. ordering the Defendants to provide full names, date(s) of
employment, employer ID, last four digits of the Social
Security number, job title(s), address (local and Mexico),
telephone number (local and Mexico), location of employment
and date of birth for each putative member of the FLSA
Collective Action within two weeks after entry of the
Court's Order; and
3. ordering the Defendants to post the notice at the Scott
Farms sweet potato packing house and in the H2A worker
housing, and to provide the notice to current employees
with their paychecks within two weeks after entry of the
Court's Order.[CC]
The Plaintiffs are represented by:
Carol L. Brooke, Esq.
NORTH CAROLINA JUSTICE CENTER
P.O. Box 28068
Raleigh, NC 27611
Telephone: (919) 856-2144
Facsimile: (919) 856-2175
E-mail: carol@ncjustice.org
- and -
Robert J. Willis, Esq.
LAW OFFICE OF ROBERT J. WILLIS, P.A.
P.O. Box 1828
Pittsboro, NC 27312
Telephone: (919) 821-9031
Facsimile: (919) 821-1764
E-mail: rwillis@rjwillis-law.com
The Defendants are represented by:
Andrew M. Jackson, Esq.
ANDREW M. JACKSON, ATTORNEY AT LAW
407 College Street
PO Box 27
Clinton, NC 28329
Telephone: (910) 592-4121
E-mail: andy@andrewjacksonlaw.com
- and -
F. Marshall Wall, Esq.
Laura Dean, Esq.
CRANFILL SUMNER & HARTZOG LLP
5420 Wade Park Boulevard, Suite 300
Raleigh, NC 27607
Telephone: (919) 863-8743
E-mail: mwall@cshlaw.com
ldean@cshlaw.com
SENOMYX INC: Rowe Seeks to Halt Sale to Firmenich
-------------------------------------------------
Josephine Rowe, individually and on behalf of all others similarly
situated, Plaintiff, v. Senomyx, Inc., Kent Snyder, Stephen A.
Block, Tom Erdmann, Mary Ann Gray, John W. Poyhonen, Dan Stebbins
and Christopher Twomey, Defendants, Case No. 18-cv-02338, (S.D.
Cal., October 10, 2018), seeks to enjoin defendants and all persons
acting in concert with them from proceeding with, consummating or
closing the acquisition of Senomyx, Inc. by Firmenich Inc. and
Sentry Merger Sub, Inc., or rescinding it in the event defendants
consummate the merger. The Plaintiff further seeks rescissory
damages, costs of this action, including reasonable allowance for
plaintiff's attorneys' and experts' fees and such other and further
relief under the Securities Exchange Act of 1934.
Senomyx stockholders will receive $1.50 in cash per share under the
proposed transaction.
Senomyx is into flavor ingredients and natural high intensity
sweeteners for food and beverage under the Complimyx, Sweetmyx,
Savorymyx and Bittermyx brand.
Defendants have allegedly locked up the deal and have precluded
other bidders from making successful competing offers for the
company. Said consideration also appears inadequate given the
intrinsic value of the company, notes the complaint. The
solicitation statement omitted the analyses performed by Needham &
Company, LLC, the Defendant's financial adviser with respect to
discounted cash flow analyses, the range of illustrative terminal
enterprise values, the specific inputs and assumptions underlying
the discount rates and Senomyx's cash and debt. These are all
needed for the shareholders to make a sound decision on the merger
deal, the complaint asserts. [BN]
Plaintiff is represented by:
Joel E. Elkins, Esq.
WEISSLAW LLP
9107 Wilshire Blvd., Suite 450
Beverly Hills, CA 90210
Telephone: (310) 208-2800
Facsimile: (310) 209-2348
- and -
Richard A. Acocelli, Esq.
WEISSLAW LLP
1500 Broadway, 16th Floor
New York, NY 10036
Tel: (212) 682-3025
Fax: (212) 682-3010
Email: racocelli@weisslawllp.com
SOUTH AFRICA: Sick Miners to Bring Class Action Lawsuit
-------------------------------------------------------
Times Live reports that "I have four kids. Now I struggle to
survive through temporary jobs. I hope that we win the case against
the coal mines so that I can get enough money to pay for further
education for my children."
So says Ndou Tshifhwa Constance‚ a 51-year-old widow from
Limpopo‚ who is being helped by Catholic bishops to bring a class
action suit against South African coal mining companies. Her late
husband worked on the mines for more than 10 years. He was
retrenched due to his medical condition but never received any
compensation‚ and he died from black lung disease‚ according to
the Southern African Catholic Bishops' Conference.
Bishop Abel Gabuza said in a statement on October 18: "The mines
need to take both ethical and legal responsibility for the sick
miners."
Pneumoconiosis‚ also called black lung disease‚ is a
preventable but incurable disease that is contracted in coal mines
through inadequate protection from coal dust.
Richard Spoor, Esq. -- Info@richardspoorinc.co.za -- attorneys are
preparing the class action on behalf of the sick miners. Richard
Spoor was one of the lawyers involved in the silicosis class action
against gold mining companies‚ which resulted in a R5-billion
settlement.
The sick coal miners are from Limpopo‚ Eastern Cape‚ Free
State‚ Mpumalanga and KwaZulu-Natal‚ said Gabuza.
Ndwamato Ratshikakale is one of those involved as an applicant in
the class action. He worked in the Tshikondeni Coal Mine in Limpopo
for 22 years until he was retrenched. The bishops said he received
no compensation and tries to survive on subsistence farming.
Ratshikakale was quoted as saying: "I have tried to get work for
the last 20 years but my health has not allowed me to. My family
tries to survive through subsistence farming. However‚ recently
the doctors have told me to stop because of exposure to dust. I am
not alone in having this sickness -- there are hundreds of us."
The SACBC's Justice and Peace Commission said it hoped that the
legal action would ensure justice and restore dignity to the
miners.[GN]
SPEEDSTER SERVICES: $4K O'Neill FLSA Suit Settlement Has Approval
-----------------------------------------------------------------
In the case, JAKE O'NEILL, Plaintiff, v. SPEEDSTER SERVICES, LLC;
SHAILESH C. PATEL; and MAMTA S. PATEL, Defendants, Case No.
6:18-cv-120-Orl-37GJK (M.D. Fla.), Judge Roy B. Dalton, Jr. of the
U.S. District Court for the Middle District of Florida, Orlando
Division, granted the parties' Renewed Joint Motion for Approval of
FLSA Settlement Agreement and Incorporated Memorandum of Law, and
Settlement Agreement and Mutual General Release.
The Plaintiff initiated the putative class action against his
former employer alleging that it failed to compensate him for
overtime hours worked in violation of the Fair Labor Standards Act
("FLSA"). Before the Court now is the Renewed Joint Motion for
Approval of FLSA Settlement Agreement and Incorporated Memorandum
of Law and the settlement agreement, which the parties submit is
reasonable under Lynn's Food Stores, Inc. v. United States ex rel.
United States Department of Labor.
Under the terms of the Agreement, the Defendant will pay the
Plaintiff a total of $4,000: $1,150 in settlement of claims and
liquidated damages; $350 as separate consideration for the general
release; and $2,500 for attorney's fees and costs.
On referral, U.S. Magistrate Judge Gregory J. Kelly concludes that
the Payment, General Release, and Attorney Fees are fair and
reasonable. He also finds that the terms of the Agreement do not
affect the reasonableness of the settlement. With this, he
recommends approving the Motion for Settlement and dismissing the
action with prejudice.
The parties then filed a joint notice of no objection to Magistrate
Kelly's R&R. Absent objections, Judge Dalton has examined the R&R
only for clear error. Finding none, he concludes that the R&R is
due to be adopted in its entirety.
Accordingly, the Judge adopted, confirmed and made a part of the
Order, Magistrate Kelly's R&R. He granted the parties' Renewed
Joint Motion for Approval of FLSA Settlement Agreement and
Incorporated Memorandum of Law; and approved their Settlement
Agreement and Mutual General Release. The action is dismissed with
prejudice. The Judge directed the Clerk to close the file.
A full-text copy of the Court's Oct. 12, 2018 Order is available at
https://is.gd/xliYzX from Leagle.com.
Jake O'Neill, and all others similarly situated, Plaintiff,
represented by Ethan Brandon Babb -- babb@wamalaw.com -- Arcadier &
Associates, PA, Joseph C. Wood -- wood@wamalaw.com -- Arcadier &
Associates, PA, Mauricio Arcadier -- arcadier@wamalaw.com --
Arcadier & Associates, PA & Stephen J. Biggie -- biggie@wamalaw.com
-- Arcadier & Associates, PA.
Speedster Services, LLC, a Florida Limited Liability Company,
Shailesh C. Patel, Individually & Mamta S. Patel, Individually,
Defendants, represented by Brett A. Hyde -- brett@uslegalteam.com
-- Widerman Malek, PL & Scott David Widerman --
scott@uslegalteam.com -- Widerman Malek, PL.
SPIRIT AEROSYSTEMS: Boeing's Indemnification Suit Now Closed
------------------------------------------------------------
Spirit AeroSystems Holdings, Inc. said in its Form 10-Q Report
filed with the Securities and Exchange Commission on October 31,
2018, for the quarterly period ended September 30, 2018, that the
suit entitled The Boeing Co. v. Spirit AeroSystems, Inc., is now
closed.
On December 5, 2014, Boeing filed a complaint in Delaware Superior
Court, Complex Commercial Litigation Division, entitled The Boeing
Co. v. Spirit AeroSystems, Inc., No. N14C-12-055 (EMD) (the
"Complaint") seeking indemnification of approximately $139.0 from
Spirit for (a) damages assessed against Boeing in International
Union, United Automobile, Aerospace and Agricultural Workers of
America v. Boeing Co., AAA Case No. 54 300 00795 07 ("UAW
Arbitration"), which was brought on behalf of certain former Boeing
employees in Tulsa and McAlester, Oklahoma, (b) claims that Boeing
settled in Society of Professional Engineering Employees in
Aerospace v. Boeing Co., Nos. 05-1251-MLB, 07-1043-MLB (D. Kan.)
("Harkness Class Action"), and (c) attorneys' fees Boeing alleges
it expended to defend the UAW Arbitration and Harkness Class
Action, as well as reasonable fees, costs and expenses Boeing
expends litigating the case against Spirit.
Boeing's Complaint asserts that the damages assessed against Boeing
in the UAW Arbitration and the claims settled by Boeing in the
Harkness Class Action are liabilities that Spirit assumed under an
Asset Purchase Agreement between Boeing and Spirit, dated February
22, 2005 (the "APA"). Boeing asserts claims for breach of contract
and declaratory judgment regarding its indemnification rights under
the APA.
Spirit asserted a Counterclaim against Boeing, on the ground that
the liabilities at issue were Boeing's responsibility under the
APA. Spirit's Counterclaim alleges breach of contract and seeks a
declaratory judgment regarding Spirit's right to indemnification
from Boeing under the APA. Spirit's Counterclaim seeks to recover
the amounts that Spirit spent litigating the Harkness Class Action,
responding to Boeing's indemnification demands concerning the
Harkness Class Action and UAW Arbitration, and also litigating the
current lawsuit against Boeing.
On December 20, 2016, Boeing and Spirit moved for summary judgment.
On June 27, 2017, the Delaware Superior Court (the "Superior
Court") issued an order denying Boeing's Motion for Summary
Judgment and granting Spirit's Motion for Summary Judgment, finding
that the liabilities at issue were excluded liabilities under the
APA and holding that Spirit is entitled to recover reasonable
attorneys' fees, costs and other expenses from Boeing. The Court
granted Spirit's motion as to fees, costs, and expenses incurred as
a result of the litigation and underlying matters and denied the
motion as to pre- and post-trial interest.
Boeing appealed the Superior Court's decision to the Supreme Court
of the State of Delaware (the "Supreme Court"). On July 12, 2018, a
unanimous three judge panel of the Supreme Court ruled in favor of
Spirit and on July 26, 2018, the Supreme Court denied Boeing's
Motion for Reargument and returned the case to the Superior Court.
Spirit sought recovery of additional attorneys' fees, costs, and
other expenses incurred during the appellate process. On August 22,
2018, the Superior Court granted Spirit's motion. Spirit has since
recouped all amounts to which it was entitled by court order. This
matter is now closed.
Spirit AeroSystems Holdings, Inc., through its subsidiaries,
designs, manufactures, and supplies commercial aero structures
worldwide. It operates through three segments: Fuselage Systems,
Propulsion Systems, and Wing Systems. The company was formerly
known as Mid-Western Aircraft Systems Holdings, Inc. Spirit
AeroSystems Holdings, Inc. was founded in 1927 and is headquartered
in Wichita, Kansas.
SUNPOWER CORP: Securities Suit Dismissed Without Leave to Amend
---------------------------------------------------------------
In the case, IN RE SUNPOWER CORPORATION SECURITIES LITIGATION, Case
No. 16-cv-04710-RS (N.D. Cal.), Judge Richard Seeborg of the U.S.
District Court for the Northern District of California granted
without leave to amend the Defendants' motion to dismiss the
amended complaint.
The Defendant is an energy company delivering solar module
technology and solar power systems to residential, commercial, and
power plant customers worldwide. It is in the business of entering
into Power Purchase Agreements ("PPAs"), or contracts to build
solar power plants, and then selling the corresponding electricity
to commercial customers. After SunPower enters into a given PPA,
it sells the contract entitling it to receive payment for the
electricity to a financing partner.
In 2015, SunPower enjoyed a government subsidized Investment Tax
Credit and a bonus depreciation rule that gave tax advantages to
solar system owners. These benefits were originally going to
expire at the end of 2016, and SunPower issued guidance
optimistically expecting higher demand in this near-term. Against
SunPower's expectations, the Congress extended the ITC and bonus
depreciation rules.
In February 2016, SunPower issued a full-year guidance, and
remained optimistic despite the extension of the ITC and bonus
depreciation. The Plaintiffs, individuals who purchased SunPower
securities during the putative class period, aver SunPower was
aware extensions to ITC and bonus depreciation would reduce 2016
sales and revenue despite their optimistic forecast, resulting in
SunPower securities losing market value.
The Plaintiffs filed a putative class action complaint on Aug. 16,
2016, asserting claims under Section 10(b) and Section 20(a) of the
Securities Exchange Act of 1934 against SunPower and the individual
Defendants, Werner and Boynton. The Lead plaintiff was appointed
in December 2016, but withdrew a month later after deciding not to
pursue this case further. After a new lead Plaintiff was
appointed, the Plaintiffs filed an amended complaint on Oct. 17,
2017.
On April 18, 2018, the Defendants' motion to dismiss the amended
complaint was granted. The Plaintiff filed the most recent second
amended class action complaint on May 8, 2018, and the Defendants
responded with the present motion to dismiss.
In the prior Order granting the Defendants' motion to dismiss, the
Plaintiffs were given leave to amend to include sufficient factual
averments on the misleading statements or misrepresentations and
scienter required to proceed on their Section 10b and 20a claims
under the Securities Exchange Act. Because they have not overcome
their burden after an opportunity to amend, Judge Seeborg granted
the motion to dismiss without leave to amend.
Looking at the August 2016 press release, Judge Seeborg finds that
it is clear the realization that 2016 second quarter performance
was negatively affected by the extension was not immediate.
Rather, SunPower continued to meet its guidance even with
SunEdison's bankruptcy in April, with negotiations ending and
finding replacements, and with a buyer market realizing a higher
perceived risk several months after the extensions were announced.
The Plaintiffs still have pleaded nothing that calls into question
SunPower's methodology for making financial forecasts either when
the statements were made or in its disclosures at the close of the
class period.
The Judge also finds that averments in the complaint do not support
a strong inference the Defendants knew their projections or
guidance were groundless when made. While the Plaintiffs are
trying to argue that SunPower was aware of the decreased demand for
solar projects when they were offering generally optimistic public
statements, an equally plausible inference is that SunPower
management was not yet experiencing the effects of that decrease.
Another plausible inference is perhaps SunPower management believed
in its ability to close existing deals. If the deals are simply
harder to close because of the tax benefit extensions that is not
particularly new information the public would not have been aware
of. There were also reasons to believe that the global policy
environment would still fuel demand and favor long-term growth.
For the foregoing reasons, Judge Seeborg granted without leave to
amend the motion to dismiss.
A full-text copy of the Court's Oct. 9, 2018 Order is available at
https://is.gd/FZ2DQB from Leagle.com.
Kenneth Bristow, Individually and On Behalf of All Others Similarly
Situated, Plaintiff, represented by Robert Vincent Prongay
-- rprongay@glancylaw.com -- Glancy Prongay & Murray LLP, Charles
Henry Linehan -- clinehan@glancylaw.com -- Glancy Prongay and
Murray LLP, Howard G. Smith, Law Offices of Howard G. Smith, Lesley
F. Portnoy -- lportnoy@glancylaw.com -- Glancy Prongay and Murray
LLP, Lionel Z. Glancy -- lglancy@glancylaw.com -- Glancy Prongay &
Murray LLP & Quentin Alexandre Roberts, Levi & Korsinsky LLP.
Mundeog Seol, Plaintiff, represented by Rosemary M. Rivas , Levi &
Korsinsky LLP & Quentin Alexandre Roberts , Levi & Korsinsky LLP.
Jay Patel, Individually and on Behalf of All Others Similary
Situated, Plaintiff, represented by Jennifer Pafiti --
jpafiti@pomlaw.com -- Pomerantz LLP, Brian Schall, Goldberg Law PC,
J. Alexander Hood, II, Pomerantz, LLP, Jeremy A. Lieberman,
Pomerantz LLP, pro hac vice & Michael Goldberg, Goldberg Law PC.
Ricardo Manes, Lead, Padraig McGowan, Lead, James Nguyen, Lead,
Kevin Korbaylo, Lead & Jason Martinez, Lead, Plaintiffs,
represented by Laurence M. Rosen -- lrosen@rosenlegal.com -- The
Rosen Law Firm, P.A., Phillip C. Kim -- pkim@rosenlaw.com -- The
Rosen Law Firm, P.A., Robert Vincent Prongay, Glancy Prongay &
Murray LLP & Lionel Z. Glancy, Glancy Prongay & Murray LLP.
SunPower Corporation, Thomas H. Werner & Charles D. Boynton,
Defendants, represented by Steven Mark Schatz -- sschatz@wsgr.com
-- Wilson Sonsini Goodrich & Rosati & Diane Marie Walters --
dwalters@wsgr.com -- Wilson Sonsini Goodrich & Rosati.
Gregory Binkiewicz, Movant, represented by Adam Christopher McCall,
Levi Korsinsky, LLP & Jennifer Pafiti, Pomerantz LLP.
SunPower Investor Group, Movant, represented by Laurence M. Rosen,
The Rosen Law Firm, P.A., Phillip C. Kim, The Rosen Law Firm, P.A.,
Reed R. Kathrein, Hagens Berman Sobol Shapiro LLP, Robert Vincent
Prongay, Glancy Prongay & Murray LLP & Jonathan Stern , Rosen Law
Firm, pro hac vice.
JianFei Huang & Peter Makhlouf, Movants, represented by Jennifer
Pafiti, Pomerantz LLP.
Melvin Brenner, Interested Party, represented by George Carlos
Aguilar -- gaguilar@robbinsarroyo.com -- Robbins Arroyo LLP.
SUPERCOM INC: New York Court Dismisses Securities Suit
------------------------------------------------------
Judge Paul G. Gardephe of the U.S. District Court for the Southern
District of New York Defendants' motion to dismiss the case, IN RE:
SUPERCOM INC. SECURITIES LITIGATION, No. 15 Civ. 9650 (PGG) (S.D.
N.Y.).
The case is a consolidated class action brought on behalf of
purchasers of Defendant SuperCom Ltd.'s common stock between Jan.
21, 2015 and Nov. 27, 2015. According to the Consolidated Class
Action Amended Complaint, SuperCom and certain of its senior
officers and directors issued false and misleading statements in
connection with SuperCom's bold revenue and earnings projection for
2015, which included alleged misrepresentations about SuperCom's
revenue streams and sales pipeline in order to prevent investors
from learning the truth. The Amended Complaint asserts claims
under Sections 10(b) and 20(a) of the Securities Exchange Act of
1934 and SEC Rule 10b-5.
On Dec. 9, 2015, the first of three putative securities fraud class
action lawsuits was filed on behalf of stockholders in SuperCom
common stock during the Class Period. On Aug.22, 2016, the Court
consolidated the three actions and appointed the Lead Plaintiff and
the Lead Counsel. The Amended Complaint was filed on Oct. 7,
2016.
On Aug. 31, 2017, the Defendants moved to dismiss the Amended
Complaint, pursuant to Federal Rules of Civil Procedure 9(b) and
12(b)(6), and the Private Securities Litigation Reform Act of 1995
(the "PSLRA"). They argue that the Section 10(b) claims should be
dismissed because the challenged statements are protected under the
PSLRA's safe harbor for forward-looking statements that are
accompanied by meaningful cautionary language.
In the alternative, the Defendants contend that the Section 10(b)
claims fail because the Amended Complaint does not plead facts
supporting a strong inference of scienter. They also contend that
the Plaintiffs' Section 20(a) claims should be dismissed because
the Amended Complaint does not allege a primary violation of the
Securities Exchange Act.
In a Sept. 30, 2018 Order, the Court granted the Defendants' motion
to dismiss. In the opinion, Judge Gardephe sets forth the Court's
reasoning for granting the Defendants' motion to dismiss.
Judge Gardephe concludes that the statement about SuperCom's base
of recurring revenue was a misleading statement that does not fall
within the safe harbor. With respect to the statements about the
sales pipeline, however, he finds that these statements are not
actionable because they are inseparable from the forward-looking
projections. Finally, he finds that the Defendants'
forward-looking projections were accompanied by meaningful
cautionary language.
As to scienter, the Judge finds that (i) the Plaintiffs failed to
establish scienter the have not pled facts demonstrating that any
Defendant had a motive to commit fraud; (ii) none of the individual
scienter allegations gives rise to a strong inference of scienter;
(iii) because the inference that the Defendants acted recklessly is
less plausible than the non-culpable inference, the Plaintiffs have
not sufficiently alleged scienter with respect tothe Defendants'
non-forward-looking statements; and (iv) because they have not
established scienter with respect to the Defendants'
non-forward-looking statements, the Plaintiffs, a fortiori, have
failed to establish scienter with respect to the forward-looking
projections.
For these reasons, the Judge granted the Defendants' motion to
dismiss the Plaintiffs' Section 10(b) claims.
Finally, the Amended Complaint includes claims for alleged
violations of Section 20(a) of the Exchange Act. A claim for
control person liability under Section 20(a) is necessarily
predicated on a primary violation of securities law. Having found
that the Plaintiffs had not adequately pled a violation of the
securities laws, the Judge will granted the Defendants' motion to
dismiss the Plaintiffs' Section 20(a) claims.
For the reasons stated in the Sept. 30, 2018 Order, Judge Gardephe
Court granted the Defendants' motion to dismiss. The Clerk of
Court is directed to close this case.
A full-text copy of the Court's Oct. 10, 2018 Memorandum Opinion
and Order is available at https://is.gd/SORGIw from Leagle.com.
Arthur Seiden, Lead Plaintiff, represented by Jeremy Alan Lieberman
-- jalieberman@pomlaw.com -- Pomerantz LLP, Aatif Iqbal --
aiqbal@pomlaw.com -- Pomerantz LLP, Joseph Alexander Hood, II --
ahood@pomlaw.com -- Pomerantz LLP & Murielle Jacqueline Steven --
mjsteven@pomlaw.com -- Pomerantz LLP.
Brandon Coleman, Movant, represented by Phillip C. Kim --
pkim@rosenlegal.com -- The Rosen Law Firm P.A.
Uliel Dreyfuss Nathan Capital Investment Management LTD, Movant,
pro se.
SuperCom Inc., Arie Trabelsi, Tsviya Trabelsi, Ordan Trabelsi,
Barak Trabelsi & Simona Green, Defendants, represented by Jonathan
David Pressment -- nathan.koppel@haynesboone.com -- Haynes and
Boone, LLP & Sarah Elizabeth Jacobson -- sjacobson@benthamimf.com
-- Haynes and Boone, LLP.
SWIFT TRANSPORTATION: Slack Suit Settlement Has Prelim Approval
---------------------------------------------------------------
In the case, TROY SLACK, JACOB GRISMER, RICHARD ERICKSON, SCOTT
PRAYE, GARY H. ROBERTS, ROBERT P. ULLRICH, HENRY LEDESMA, TIMOTHY
HELMICK, DENNIS STUBER, ERIC DUBLINSKI, SEAN P. FORNEY,
individually and as Class Representatives, Plaintiffs, v. SWIFT
TRANSPORTATION CO. OF ARIZONA, LLC, Defendant, Case No.
3:11-cv-05843-BHS (W.D. Wash.), Judge Benjamin H. Settle of the
U.S. District Court for the Western District of Washington, Tacoma,
granted the Plaintiffs' Unopposed Renewed Motion for Preliminary
Approval of Class Action Settlement, filed Sept. 20, 2018.
The parties entered into their Class Action Settlement Agreement
and Release, dated Sept. 20, 2017, to settle the lawsuit. The
Court preliminarily approved the Settlement on Oct. 10, 2017. But
after preliminary approval, the Class Representatives and Swift
developed a disagreement about the scope of the Class included in
the Settlement Agreement, and the scope of the release of the
claims in the Settlement Agreement. Therefore, the Court vacated
preliminary approval on April 10, 2018.
The parties briefed the issues between them multiple times. The
Court issued an order directing the parties to meet and confer and
to propose a process for moving the matter forward on July 9, 2018.
After this order, the counsel for the Class Representatives and
Swift met and conferred over the outstanding issues and agreed to
resolve them with the clarifications set forth in Amendment No. 1
to Class Action Settlement Agreement and Release, dated Aug. 29,
2018. The Settlement Agreement, with the Amendment, sets forth the
terms and conditions for a proposed Settlement and dismissal with
prejudice of Swift.
Judge Settle preliminarily approved the Settlement Agreement and
the Amendment, finding that the proposed Settlement is sufficiently
fair, reasonable, and adequate to warrant providing notice to the
Class. He appointed Kurtzman Carson Consultants ("KCC") as the
Settlement Administrator.
The Judge approved the proposed notice plan. The Settlement
Administrator, using data supplied by Swift as provided in the
Settlement Agreement and the Amendment, will attempt in good faith
to identify the Class Members' last known mailing addresses. The
Class Counsel, by and through the Settlement Administrator, will
provide notice of the settlement to the Class Members. The Class
Counsel and the Settlement Administrator will use their best
efforts to complete the Class Notice process by the Mailed Notice
Date listed in the Order.
The Judge finds that the Class Members will be identified by the
methodology used by Ms. Angela Sabbe in the Expert Report of Angela
Sabbe (dated Sept. 15, 2016), as supplement with data provided by
Ms. Sabbe in October 2017, a methodology which was adopted and
employed by the Class Representatives and Swift in the case.
Judge Settle approved the Plan of Allocation of the class
settlement funds, as set forth in the Settlement Agreement and the
Settlement Notice, and finds that the proposed Plan of Allocation
is fair, reasonable, and adequate. He also approved the procedures
set forth in the Settlement Agreement and the Settlement Notice for
exclusions from and objections to the Settlement. Any Class Member
who wishes to be excluded from or object to the Settlement must
comply with the terms set forth in the Settlement Agreement and
Settlement Notice. The Class Members who wish to exclude
themselves from the Settlement must file by the Exclusion and
Objection Deadline, as provided in the Settlement Notice. The
Class Counsel will submit to the Court the name of all Class
Members who submit Exclusion Requests at the time Class Counsel
file their motion for final approval of the Settlement.
The Judge directed the Administrator promptly to furnish the Class
Counsel and the Swift counsel copies of any and all objections,
motions to intervene, notices of intention to appear, and other
communications that come into its possession.
All proceedings against Swift in the Lawsuit are stayed until
further order of the Court, except that the Parties may conduct
such limited proceedings as may be necessary to implement the
proposed Settlement or to effectuate its terms.
The Class Counsel will file (i) a petition for fees, expenses, and
incentive awards by the Fee Petition Deadline; and (ii) a motion
for final approval and responses to any objections/Fee Petition
replies by the Motion for Final Approval of Settlement and
Responses to Objections Deadline.
The Judge directed that the following deadlines are established by
the Order. The Court may, for good cause, extend any of the
deadlines set forth in this Order without further notice to the
Class.
a. Swift to Provide Class Data to Settlement Administrator:
Oct. 16, 2018 (within 7 days following entry of the Order)
b. Mailed Notice Date: Nov. 15, 2018 (within 30 days following
receipt of class data)
c. Exclusion and Objection Deadline: Dec. 18, 2018 (within 33
days following Mailed Notice Date)
d. Fee Petition Deadline: Dec. 14, 2018 (by 14 days before the
Exclusion and Objection Deadline)
e. Motion for Final Approval of Settlement and Responses to
Objections Deadline: Jan. 3, 2019 (two weeks after objection
deadline/at least 2 weeks prior to the Fairness Hearing)
f. Fairness Hearing: 10:00 a.m. on Jan. 22, 2019 (at least 100
days after the date of the Order)
A full-text copy of the Court's Oct. 9, 2018 Order is available at
https://is.gd/EUsMoV from Leagle.com.
Troy Slack, Jacob Grismer, Richard Erickson, Scott Praye,
individually, and as putative class representatives, Gary H
Roberts, individually, and as Putative Class Representatives,
Robert P Ulrich, individually, and as Putative Class
Representatives, Henry M Ledesma, individually, and as Putative
Class Representatives, Timothy Helmick, individually, and as
Putative Class Representatives, Dennis Stuber, individually, and as
Putative Class Representatives, Eric Dublinski, individually, and
as Putative Class Representatives & Sean P Forney, individually,
and as Putative Class Representatives, Plaintiffs, represented by
Angela J. Mason, THE COCHRAN FIRM, PC, pro hac vice, Deborah M.
Nelson, NELSON BOYD PLLC, J. Farrest Taylor, THE COCHRAN FIRM, PC,
pro hac vice, Jeffrey D. Boyd, NELSON BOYD PLLC, Jeniphr A.E.
Breckenridge -- jeniphr@hbsslaw.com -- HAGENS BERMAN SOBOL SHAPIRO
LLP, Joseph D. Lane, THE COCHRAN FIRM, PC, pro hac vice, Robert J.
Camp -- rcamp@wigginschilds.com -- WIGGINS, CHILDS, QUINN &
PANTAZIS, LLC, pro hac vice, Robert F. Lopez -- robl@hbsslaw.com --
HAGENS BERMAN SOBOL SHAPIRO LLP, Steve W. Berman --
steve@hbsslaw.com -- HAGENS BERMAN SOBOL SHAPIRO LLP & Thomas E.
Loeser -- toml@hbsslaw.com -- HAGENS BERMAN SOBOL SHAPIRO LLP.
Swift Transportation Co. of Arizona, LLC, doing business as,
Defendant, represented by David W. Wiley --
dwiley@williamskastner.com -- WILLIAMS KASTNER, Jeffery M. Wells --
jwells@williamskastner.com -- WILLIAMS KASTNER & Sheryl D.J.
Willert -- swillert@williamskastner.com -- WILLIAMS KASTNER.
TD AMERITRADE: Court Narrows Claims in Krukever Suit
----------------------------------------------------
In the case, DIEGO KRUKEVER, et al., Plaintiffs, v. TD AMERITRADE,
INC., et al., Defendants, Case No. 18-21399-CIV-ALTONAGA/Goodman
(S.D. Fla.), Judge Cecilia M. Altonaga of the U.S. District Court
for the Southern District of Florida granted in part and denied in
part TD Ameritrade, Inc. ("TDA") and TD Ameritrade Futures & Forex
LLC ("TDAFF")'s Motion to Dismiss Second Amended Class Action
Complaint.
The Plaintiffs are individual investors who opened brokerage and
commodities accounts with Defendants to trade "put options" on
"futures contracts" on the Globex electronic trading platform in
the Chicago Mercantile Exchange. The put options in which the
Plaintiffs invested have value tied to the Standard & Poor 500
stock index, which is comprised of stocks traded on the New York
Stock Exchange and the Nasdaq Exchange ("Underlying Markets").
To invest and trade in put options on futures contracts, the
Plaintiffs entered into a Futures Client Agreement with TDAFF. The
Agreement warned the Plaintiffs trading in commodity interests
"involves a high degree of risk, and is appropriate only for
persons who can assume risk of loss in excess of their margin
deposit.
The Plaintiffs' investments are generally traded on margin. For
customers trading on margin, the Agreement warned TDAFF had the
right to determine how much margin the Plaintiffs were required
keep in their accounts -- an amount which TDAFF could set and
revise without prior notice to Client. The Agreement gave TDAFF
the right without prior notice and in its sole discretion, to
liquidate any assets held by TD Ameritrade Clearing Inc. in a
Securities Account in the event of a margin deficiency or
insecurity. TDAFF also had "sole discretion" to decide whether a
margin deficiency or insecurity existed in the Plaintiffs'
accounts.
TDAFF exercised this right on Feb. 5, 2018, when it liquidated the
Plaintiffs' put option futures investments. The liquidation
happened after the Underlying Markets had closed for the day. The
Plaintiffs allege the time after the Underlying Markets close is an
"After Hours Market" for trading put options on futures contracts,
and that the After Hours Market does not exhibit the same trading
behavior as the regular market.
The After Hours Market on Feb. 5, 2018 was illiquid and
dysfunctional because of the volatile market conditions at the time
the Underlying Markets closed. In those volatile conditions, the
prices on put options "skyrocketed," as the S&P 500 index
fluctuated significantly. Because the Plaintiffs held "short" put
options on the futures contracts, any increase in the value of the
options had a "disastrous" effect on the value of their
investments.
When TDAFF liquidated the Plaintiffs' investments in the After
Hours Market, the Plaintiffs lost millions of dollars. They allege
their losses would have been far lower had TDAFF liquidated their
positions during the "daytime market" -- that is, when the
Underlying Markets are open for trading. The liquidation in the
After Hours Market was thus reckless and commercially unreasonable.
Plaintiffs' claims arise out of the losses incurred in the After
Hours Liquidation of their investments. Although Plaintiffs
understood and accepted the inherent risk stemming from investments
in put options on futures contracts, they did not know or accept
that TDA and TDAFF would expose them to even greater risk by
recklessly liquidating Plaintiffs' and class members' positions in
a commercially unreasonable way in an illiquid and dysfunctional
After-Hours Market that would exponentially increase their The
Plaintiffs did not know the commercially unreasonable and reckless
liquidation could occur because of two fraudulent omissions made by
TDAFF in the Futures Client Agreement: (1) the Agreement does not
state that TDAFF may liquidate at any time; and (2) the Agreement
does not disclose that the Defendants were reserving for themselves
the right to liquidate the Plaintiffs' commodities in an illiquid
and dysfunctional After-Hours Market.
The Plaintiffs bring the lawsuit under federal law, contending (1)
the two omissions made by TDAFF in the Agreement operated as a
fraud or deceit on the Plaintiffs; and (2) TDA aided and abetted
the omissions, which operated as a fraud or deceit on the
Plaintiffs. They also bring a single state-law claim for breach of
the implied covenant of good faith and fair dealing based on the
Agreement's allegedly fraudulent omissions.
Before the Court are the Defendants' Motion to Dismiss Second
Amended Class Action Complaint for failure to state a claim under
Federal Rule of Civil Procedure 12(b)(6), filed July 23, 2018.
Judge Altonaga finds that the Plaintiffs' SAC -- their third
pleading -- is deficient in numerous respects. The SAC in several
places improperly alleges TDAFF's actions on Feb. 5, 2018 were
fraudulent under section 6b(e)(3) and Rule 180.1, even though no
misleading statements or omissions were made by the Defendants on
that day. Counts I and II fail to meet Rule 9(b)'s heightened
pleading standard because they do not allege what the Defendants
obtained from the alleged omissions in the Agreement. Count I
fails because it does not allege the omissions proximately caused
the Plaintiffs' losses. Count II fails because it does not allege
scienter on the part of TDAFF. Count III merits dismissal because
it makes no allegations connecting TDA to the drafting of the
Agreement.
For these reasons, the Judge granted in part and denied in part the
Defendants' Motion. Given the deadline to amend pleadings passed
long ago, and the Plaintiffs did not in their Response seek leave
to amend to file a fourth complaint, the case proceeds as to Count
IV only.
A full-text copy of the Court's Oct. 5, 2018 Order is available at
https://is.gd/OkQSfh from Leagle.com.
Diego Krukever, indiviudally and on behalf of all others similarly
situated, Karem Sandgarten, indiviudally and on behalf of all
others similarly situated & Amir Rahimi, indiviudally and on behalf
of all others similarly situated, Plaintiffs, represented by
Francisco Ramon Rodriguez, Rodriguez Tramont & Nunez, P.A.,
Lawrence Allan Kellogg -- lak@lklsg.com -- Levine Kellogg Lehman
Schneider & Grossman LLP, Paulino Antonio Nunez, Jr., Rodriguez
Tramont & Nunez, Victoria Jean Wilson -- vjw@lklsg.com -- Levine
Kellogg Lehman Schneider Grossman LLP & Jason Kenneth Kellogg --
jk@lklsg.com -- Levine Kellogg Lehman Schneider Grossman LLP.
TD Ameritrade, Inc., TD Ameritrade Futures & Forex LLC & TD
Ameritrade Clearing, Inc., Defendants, represented by Adam Michael
Schachter -- aschachter@gsgpa.com -- Gelber Schachter & Greenberg,
P.A., Gerald Edward Greenberg -- ggreenberg@gsgpa.com -- Gelber
Schachter & Greenberg, P.A., Andrew Morris -- amorris@orrick.com --
Orrick, Herrington & Sutcliffe LLP, pro hac vice, Daniel Streim --
dstreim@orrick.com -- Orrick, Herrington & Sutcliffe LLP, pro hac
vice, Richard J. Morvillo -- rmorvillo@orrick.com -- Orrick,
Herrington & Sutcliffe LLP, pro hac vice & Robert Stern --
rstern@orrick.com -- Orrick, Herrington & Sutcliffe LLP, pro hac
vice.
TEVA PHARMA: Valsartan Class Action Filed in New Jersey
-------------------------------------------------------
Roopal Luhana, writing for The Legal Examiner, reports that a Texas
man has filed a new class-action lawsuit against makers of the
heart disease drug "valsartan." He brings the claim on behalf of
himself and hundreds of other patients who bought the drugs unaware
that they could be contaminated with "N-nitrosodimethylamine
(NDMA)," a chemical classified as a probable human carcinogen. The
case is pending in the U.S. District Court for the District of New
Jersey.
Chinese manufacturer Zhejiang Huahai Pharmaceuticals found the
impurity while conducting internal tests on the drugs. NDMA is a
by-product of some of the ingredients used to make the drug and is
believed to have been introduced after the company made changes in
how they were manufacturing valsartan.
Because of the NDMA contamination, in July 2018, the FDA issued a
recall of several drugs containing valsartan. They have continued
to investigate and to update their list of drugs and drug makers
affected by this recall.
Plaintiff Purchases Valsartan Unaware of Contamination
According to his complaint, the plaintiff started taking generic
valsartan made by Solco Healthcare LLC in March 2017. He bought it
again in June 2017. He later bought another version of the drug
made by Teva Pharmaceutical Industries. The plaintiff alleges that
he was unaware that the drugs could be contaminated with a
carcinogen.
Valsartan is prescribed to reduce blood pressure and is used in the
treatment of heart failure and to help prevent a second heart
attack. It is a generic version of the original drug Diovan, which
had been marketed by Novartis AG starting in 2001. After the patent
expired in 2012, generic companies stepped in to create their own
versions of the drug. Zhejiang Huahai Pharmaceuticals supplies many
different generic companies with valsartan.
Manufacturer Cited by the FDA for Quality Issues
Under federal law, drug companies must comply with "current Good
Manufacturing Practices (cGMPs)" to make sure they meet safety,
quality, purity, identity, and strength standards. Any drug that
fails to meet these standards is labeled "adulterated" and cannot
be sold in the U.S.
Zhejiang Huahai Pharmaceuticals is a subsidiary of Huahai
Pharmaceutical and is located in Linhai City, Zhejiang Province,
China. It is one of China's largest exporters of prescription
medications to Europe and the U.S. It is a contract manufacturer of
valsartan products for many generic drug companies. The plaintiff
claims, however, that the company has a history of deviating from
the required cGMPs during manufacturing.
In 2007, the FDA inspected the company's facilities and found
deviations from cGMPs. The company was supposed to have corrected
them, but in 2017, the FDA again inspected the facilities and found
additional problems. Specifically, the FDA found that the company
was not consistently documenting impurities found during analytical
testing and that their facilities and equipment were not adequately
maintained to ensure drug quality.
Plaintiff Claims Defendants Failed to Fulfill Quality Assurance
Obligations
The European Medicines Agency (EMA), which also recalled valsartan,
noted: "NDMA was an unexpected impurity believed to have formed as
a side product after Zhejiang Huahai introduced changes to its
manufacturing process in 2012." The plaintiff states that if the
drug manufacturers had fulfilled their quality assurance
obligations, they would have detected the impurity.
The plaintiff brings counts of breach of warranties, fraud,
violation of New Jersey Consumer Fraud Act, violation of
Pennsylvania Unfair Trade Practices and Consumer Protection Law,
violation of state consumer protection laws, negligence, and unjust
enrichment.[GN]
TREVENA INC: Tomaszewski Hits Share Price Drop Over FDA Dispute
---------------------------------------------------------------
Dr. William Tomaszewski, individually and on behalf of all others
similarly situated, Plaintiff, v. Trevena, Inc., Maxine Gowen and
Roberto Cuca, Defendants, Case No. 18-cv-04378, (E.D. Pa., October
10, 2018) seeks monetary damages, liquidated damages, prejudgment
interest, costs, including reasonable attorneys' fees for
violations of Sections 10(b) and 20(a) of the Securities Exchange
Act.
Trevena is a clinical stage biopharmaceutical company that
discovers, develops and intends to commercialize therapeutics that
use a novel approach to target G protein coupled receptors. Using
its proprietary product platform, Trevena has identified four
biased ligand product candidates, including oliceridine to treat
moderate to severe acute pain intravenously.
The complaint asserts that Defendants failed to disclose that the
FDA disagreed with Trevena on several key factors relating to
whether oliceridine would ultimately be approved for commercial
distribution. On this news, the company's stock plummeted by $1.91
or 64% to close at $1.07, eliminating over $145 million of
Trevena's market capitalization. [BN]
Plaintiff is represented by:
Deborah R. Gross, Esq.
KAUFMAN COREN & RESS, P.C.
Two Commerce Square, Suite 3900
2001 Market Street
Philadelphia, PA 19103
Tel: (215) 735-8700
Fax: (215) 735-5170
Email: dgross@kcr-law.com
- and -
Jeffrey C. Block
Jacob A. Walker,
Nathaniel Silver
BLOCK & LEVITON LLP
155 Federal Street, Suite 400
Boston, MA 02110
Tel: (617) 398-5600
Fax: (617) 507-6020
Email: jeff@blockesq.com
jake@blockesq.com
nate@blockesg.com
TRUNKETT & TRUNKETT: Jennings FDCPA Suit Dismissed w/o Prejudice
----------------------------------------------------------------
Judge Ruben Castillo of the U.S. District Court for the Northern
District of Illinois, Eastern Division, dismissed without prejudice
the case, KATRINA JENNINGS, individually and on behalf of a class
of similarly situated persons, Plaintiff, v. TRUNKETT & TRUNKETT,
P.C., Defendant, Case No. 18 C 1413 (N.D. Ill.), for lack of
subject-matter jurisdiction.
The brings the putative class action alleging that the law film of
the Defendant violated multiple provisions of the Fair Debt
Collection Practices Act ("FDCPA") in connection with its efforts
to collect a debt from her. The Plaintiff incurred a "debt" within
the meaning of the FDCPA on a credit account issued by Maroon
Financial Credit Union She subsequently defaulted on the debt.
In October 2017, the Defendant filed a lawsuit against the
Plaintiff on behalf of Maroon Financial Credit Union in the Circuit
Court of Cook County, Illinois, to collect the debt. In early
February 2018, the Plaintiff was served with a copy of the
complaint filed in the state court action and a summons to appear
in state court on Feb. 21, 2018. The state court complaint alleged
that principal, interest, and attorneys' fees were "presently due"
to Maroon Financial Credit Union. On Feb. 21, 2018, the Circuit
Court of Cook County entered a default judgment against the
Plaintiff in the amount of $3,182.53 plus costs.
Two days after the judgment was entered, the Plaintiff filed the
present lawsuit, alleging that the Defendant violated several
provisions of the FDCPA in connection with the state court action.
Specifically, she alleges that the Defendant violated Sections
1692e, e(2), and e(10) because the state court complaint listed the
plaintiff as "Maroon Financial Credit Union," while the summons
listed the plaintiff as "Maroon Financial C." Next, she alleges
that the Defendant violated Sections 1692e(5) and 1692f(1) when it
alleged in the state court complaint that attorneys' fees were
"presently due," because the Defendant had neither a contractual,
nor a statutory, right to attorneys' fees. Finally, the Plaintiff
claims that the Defendant made a false statement in violation of
Section 1692e(10) when it attached a "notice" to the state court
complaint advising her that if she contested the debt within 30
days, the Defendant would obtain verification of the debt or a copy
of the judgment against her and provide such documentation to her.
The Plaintiff further asserts that she was damaged as a direct and
proximate result of the Defendant's conduct in the State Action, in
that she incurred financial loss, and suffered emotional distress,
lost time, worry, embarrassment, aggravation, restlessness,
depression, nervousness, and inconvenience.
In April 2018, the Defendant filed the present motion seeking to
dismiss the action in its entirety. It first argues that the
Rooker-Feldman doctrine deprives this Court of jurisdiction over
the Plaintiff's FDCPA claims. It relatedly argues that the
Plaintiff's claims are barred by res judicata. The Defendant
alternatively argues that the Plaintiff has failed to state a claim
for relief under the FDCPA.
Judge Castillo finds that concludes that the Plaintiff's claims are
barred by Rooker-Feldman. Although the Plaintiff does not
expressly ask the Court to set aside the default judgment entered
by the state court, her claims are dependent upon and interwoven
with the merits of the state court action. The Court has no
authority to review the state court's judgment, either explicitly
or implicitly. Accordingly, the action must be dismissed for lack
of subject-matter jurisdiction.
In the event Rooker-Feldman does not apply, the Judge would find
that the Plaintiff's claims are barred by res judicata. Notably,
the Plaintiff has failed to respond to the Defendant's res judicata
argument. Dismissal would be warranted on that reason alone.
Because Plaintiff's complaint fails on these threshold issues, the
Judge does not reach the Defendant's alternative arguments that the
Plaintiff's allegations fail to state a claim for relief under the
FDCPA.
For the foregoing reasons, Judge Castillo granted the Defendant's
motion to dismiss, and dismissed the action without prejudice for
lack of subject-matter jurisdiction.
A full-text copy of the Court's Oct. 10, 2018 Memorandum Opinion
and Order is available at https://is.gd/iCamX6 from Leagle.com.
Katrina Jennings, on behalf of herself and all others similarly
situtated, Plaintiff, represented by Michael Jacob Wood, Community
Lawyers Group, Ltd. & Celetha Chatman --
cchatman@communitylawyersgroup.com -- Community Lawyers Group,
Ltd.
Trunkett & Trunkett, P.C., Defendant, represented by James Joseph
Sipchen -- jsipchen@pretzel-stouffer.com -- Pretzel & Stouffer,
Chtd. & Thomas Vincent-Paul Draths -- tdraths@pretzel-stouffer.com
-- Pretzel & Stouffer, Chartered.
UBER TECHNOLOGIES: Faces Class Action in Victoria
-------------------------------------------------
Asha McLean, writing for ZD Net, reports that controversial
ride-hailing service Uber is facing a class action in Victoria,
with around 1,000 taxi drivers backing the move from Maurice
Blackburn.
The law firm will lodge a class action in the Victorian Supreme
Court in the coming weeks into specifically Uber's "conspiracy to
act unlawfully", senior associate Elizabeth O'Shea, Esq., told
AAP.
"We expect it [the class action] to be worth hundreds of millions
of dollars," she said of the damages.
About 1,000 people who held a licence while Uber was "operating
unlawfully" -- and believe they lost income or licence value as a
result -- have joined the action.
"We are very close to finalising the timing but there is a bit of
paperwork yet to be done," O'Shea said.
According to O'Shea, the lawsuit will be bankrolled externally,
with AU$20 million already offered so drivers don't have to use
their own cash.
"We do not want the drivers to dip into their own pockets," she
said.
The full list of claimants is yet to be finalised and registration
to join the action over Uber's conduct between April 1, 2014, and
July 31, 2017, remains open.
Uber only received the green light to operate in the state in
August 2017, however a decision passed by a Victorian County Court
judge in favour of a Melbourne Uber driver in early 2016
effectively deemed the service as legal.
It had taken the state nearly three years to decide how to
legislate ride-hailing services such as Uber, announcing back in
September 2015 it was preparing to regulate the service amid
concerns from the local taxi industry.
The legal nod to operate in Victoria was coupled with a AU$1 levy
imposed on all commercial trips from the start of this year, with
the revenue raised touted as replacing licence fees and help
compensate taxi operators.
The Australian Taxpayers' Alliance previously condemned such levy
proposals as slugging Victorians with "yet another great new tax to
bail out the failing taxi industry".
"Victorians are already struggling with sluggish economic growth
and increasing unemployment," said executive director of the
alliance Tim Andrews said at the time. "The last thing they need is
hundreds of millions of dollars of new taxes to fund corporate
welfare."
After New South Wales deemed Uber as legal in December 2015, the
state government applied a AU$1 levy on all taxi and ride-sharing
trips, with the aim to contribute AU$100 million to pay for a
compensation scheme.
ACT was the first Australian state or territory to legalise
ride-sharing back in October 2015. Western Australia legalised the
service in May 2016, and South Australia followed suit two months
later.
In Tasmania, Uber was officially launched in November 2016, nearly
a month after receiving the legal green light, and the Northern
Territory changed its stance on the ride-sharing service in July
this year, with a few places throughout the territory allowing Uber
to operate. [GN]
UNILEVER US: Browning Moves to Certify Five Classes of Consumers
----------------------------------------------------------------
The Plaintiffs in the lawsuit styled KAYLEE BROWNING and SARAH
BASILE, on behalf of themselves and all others similarly situated
v. UNILEVER UNITED STATES, INC., Case No. 8:16-cv-02210-AG-KES
(C.D. Cal.), move for an order certifying classes defined as:
* California Consumer Protection Class:
All persons who purchased St. Ives Apricot Scrub in
California on or after December 17, 2012.
* New York Consumer Protection Class:
All persons who purchased St. Ives Apricot Scrub in New York
on or after December 17, 2013.
* Implied Warranty Class:
All persons who purchased St. Ives Apricot Scrub: (1) in
Alaska, Arkansas, California, Delaware, District of
Columbia, Hawaii, Indiana, Kansas, Michigan, Minnesota,
Montana, Nevada, New Hampshire, New Jersey, North Dakota,
Oklahoma, Oregon, Pennsylvania, Rhode Island, South
Carolina, South Dakota, Texas, Utah, Virginia, or Wyoming on
or after December 16, 2012; or (2) in Colorado or
Massachusetts on or after December 16, 2013.
* Preponderance of the Evidence Fraud Class:
All persons who purchased St. Ives Apricot Scrub in
California, Massachusetts or Texas on after December 16,
2013.
* Clear and Convincing Evidence Fraud Class:
All persons who purchased St. Ives Apricot Scrub in New
York, Colorado, Connecticut, Minnesota, Washington or
Wisconsin on or after December 16, 2013.
The Court will commence a hearing on December 10, 2018, at 10:00
a.m., to consider the Motion.[CC]
The Plaintiffs are represented by:
L. Timothy Fisher, Esq.
Joel D. Smith, Esq.
Thomas A. Reyda, Esq.
BURSOR & FISHER, P.A.
1990 North California Blvd., Suite 940
Walnut Creek, CA 94596
Telephone: (925) 300-4455
Facsimile: (925) 407-2700
E-mail: ltfisher@bursor.com
jsmith@bursor.com
treyda@bursor.com
- and -
Scott A. Bursor, Esq.
Joshua D. Arisohn, Esq.
Yitzchak Kopel, Esq.
BURSOR & FISHER, P.A.
888 Seventh Avenue
New York, NY 10019
Telephone: (212) 989-9113
Facsimile: (212) 989-9163
E-mail: scott@bursor.com
jarisohn@bursor.com
ykopel@bursor.com
UNITED STATES: $422K Settlement in Courval Suit Has Final Approval
------------------------------------------------------------------
In the case, KENNETH COURVAL, et al., For himself and As
Representative of a Class of Similarly Situated Persons,
Plaintiffs, v. UNITED STATES, Defendant, Case No. 12-482L (Fed.
Cl.), Judge Charles F. Lettow of the U.S. Court of Federal Claims
granted the parties’ motion for approval of the Settlement
Agreement.
The rails-to-trails case originally began in July 2012, when the
Plaintiffs filed their first complaint with the Court. The
complaint was based on the conversion of a railroad corridor in
Howard County, Indiana to a recreational trail under the Trails
Act. The land at issue spans 2.35 miles (not continuous) between
mileposts 55.66 and 58.5 in Howard County. The Central Railroad
Co. of Indianapolis previously held a right-of-way easement over
the Railroad Line for railroad purposes.
On June 15, 2012, the Surface Transportation Board ("STB") issued a
Notice of Interim Trail Use ("NITU") over the Railroad Line. The
class members are 41 landowners who own 49 parcels of land burdened
by the railroad easement and who allege they would have enjoyed
exclusive right of physical ownership of the land at issue if not
for the issuance of the NITU. They allege a taking of their
property by the United States government and pray for just
compensation as relief. All of the land at issue is within the
city limits of Kokomo, Indiana.
At the outset of the litigation, the Plaintiffs asserted they
brought the action for themselves and as the Representatives of a
Class of Similarly Situated Persons. They subsequently moved to
certify the case as an opt-in class action pursuant to Rule 23 of
the Rules of the Court of Federal Claims ("RCFC"). The government
did not oppose the class motion and the class was certified on
March 1, 2013.
Notwithstanding obstacles, the parties were able to work through
their differences and reach a tentative settlement on July 30,
2018. The Settlement Agreement sets out the specific amounts the
government has agreed to pay to the class. The sum of $150,000
will be paid to the class members, apportioned to each class member
depending on the size and type of property. The counsel for the
class and for the government negotiated the amount for each
property individually, starting with the jointly retained
appraiser's valuations. The compensation amount is coupled with an
additional $41,157.81 of interest for delay damages through Sept.
27, 2018, distributed on the basis of each class members' principal
amount.
The government has also agreed to pay statutory attorneys' fees and
costs of $230,966, for a total payment of $422,123.81 through Sept.
27, 2018. An additional $19.78 per day of interest is payable from
the date of Sept. 27, 2018 until judgment is actually paid. Upon
approval by the court, the settlement will be submitted by the
United States to the Department of Treasury for payment.
The parties then filed their Joint Motion for Preliminary Approval
of the Settlement and to Approve Notice to the Class Members
Regarding Proposed Class Settlement and Request to Set Date for
Public Hearing under RCFC 23(e) seeking preliminary approval of the
settlement and for notice to class members. After a hearing on
Aug. 14, 2018, the Court granted the Joint Motion and authorized
issuance of a notice of settlement to the class members.
Following notice to the class and receipt of the class members'
responses, a hearing on the fairness of the Settlement Agreement
was held at the Charles A. Halleck Federal Building in Lafayette,
Indiana on Sept. 28, 2018.
Judge Lettow concludes the settlement in the case is both
procedurally and substantively fair. The Settlement Agreement
negotiated by the parties would also provide members of the class
with a certain and definite resolution of the case by avoiding
further proceedings of resolving the case by trial. The litigation
is already over half a decade old -- any further delays would
operate to the detriment of the class members.
He also finds that the class counsel ushered the case through a
multi-year negotiation, the arm's-length settlement process
resulted in a jointly agreed amount for fees and costs between the
class counsel and the counsel for the government, and the amounts
agreed under the Uniform Relocation Act were disclosed to the class
members and no objections were recorded. The Judge will thus
approve the Settlement Agreement's provision for $230,966 in
attorneys' fees and costs.
For these reasons, Judge Lettow granted the parties' motion for
approval of the Settlement Agreement. The clerk is directed to
enter judgment in the total amount of $422,123.81, consisting of
$150,000 in principal and $41,157.81 in interest through Sept. 27,
2018 for the prevailing class members, and $219,052 in attorneys'
fees and $11,914 in litigation costs awarded to the class counsel
pursuant to the Uniform Relocation Act. After Sept. 27, 2018,
interest will accrue at a rate of $19.78 per day through the date
of payment by the Department of the Treasury. T he judgment is
payable to the class counsel for distribution to class according to
the terms of the Opinion and Order and the Settlement Agreement.
The clerk will enter judgment in accord with this disposition.
A full-text copy of the Court's Oct. 10, 2018 Opinion and Order is
available at https://is.gd/lEivSg from Leagle.com.
KENNETH COURVAL & TED L. TATE REVOCABLE TRUST DTD 02/16/1977, For
Themselves and As Representative of a Class of Similarly Situate
Persons, Plaintiffs, represented by John Robert Sears --
sears@bscr-law.com -- Baker, Sterchi, et al.
USA, Defendant, represented by Ragu-Jara Gregg, U.S. Department of
Justice - Law and Policy Section.
UNITED STATES: Wang's Class Cert. Bid Gets Provisional Approval
---------------------------------------------------------------
The Hon. Tanya S. Chutkan granted on a provisional basis the
Plaintiffs' motion for class certification in the lawsuit titled
FENG WANG, et al. v. MICHAEL R. POMPEO, et al., Case No.
1:18-cv-01732-TSC (D.D.C.).
Michael R. Pompeo is the United States Secretary of State.
Judge Chutkan ruled that the Plaintiffs' Motion for Class
Certification is granted on a provisional basis for the sole
purpose of resolving their Motion for Preliminary Injunction.
For the sole purpose of ruling on the Motion for Preliminary
Injunction, the Court provisionally certifies:
(1) a class that includes investors with approved or pending
I-526 petitions (and their spouses and children), whose
ability to obtain an immigrant visa or adjustment of
status is or will be adversely affected by Defendants'
Counting Policy;
(2) a subclass that includes children of investors who have or
will age-out of eligibility to immigrate to the United
States with their investor parent as a result of
Defendants' counting policy, along with the investor
parents of such children; and
(3) a subclass of Plaintiffs and their derivatives who have
suffered substantial loss of income, education, and
educational opportunities as a result of the inability to
obtain current priority dates due to the Defendants'
counting policy.
The Plaintiffs' counsel are appointed to represent the provisional
class.
Judge Chutkan also noted that because subsequent motions practice
may render any further class certification issues moot, the Court
stays any further briefing on class certification until after the
Plaintiffs' motion for preliminary injunction and any other
dispositive motions are resolved.[CC]
UNITEDHEALTHCARE: ERISA Suit Moved to Utah District Court
---------------------------------------------------------
In the case, K.H.B. by and through his father, K.D.B.,
individually, and on behalf of similarly situated individuals,
Plaintiff, v. UNITEDHEALTHCARE INSURANCE COMPANY, Defendant, Case
No. C 18-04175 WHA (N.D. Cal.), Judge William Alsup of the U.S.
District Court for the Northern District of California (i) granted
the Defendant's motion to transfer venue to the District of Utah,
and (ii) denied its motion to stay the action.
In May 2017, two beneficiaries of a health benefits plan filed a
putative nationwide class action lawsuit, Amy G. and Gary G. v.
United HealthCare and United Behavioral Health, No.
2:17-cv-00413-DN-EJF, in the U.S. District Court for the District
of Utah before Judge David Nuffer. In Amy G., the plaintiffs'
minor son received treatment for his mental health condition at a
wilderness therapy program, but United Healthcare Insurance Co. and
United Behavioral Health, which administered the Plaintiffs'
employer-provided group health benefits plan, denied coverage based
on an exclusion from coverage for experimental, investigational, or
unproven treatment.
The Utah case seeks to pursue a putative nationwide class of ERISA
beneficiaries whose claims for payment of mental health services at
wilderness programs have been wrongfully denied based on the
Defendants' systematic and erroneous application of the exclusion
for experimental, investigational, or unproven treatment. The
class certification discovery concluded on Sept. 14, 2018, and the
motion for class certification is due on Oct. 12, 2018.
The instant action is a competing proposed nationwide class action
brought in the Northern District of California by a different
plaintiff with a different lawyer but also against United
Healthcare over the same problem. Plaintiff K.H.B. was enrolled in
his parent's employer-sponsored health insurance plan, which UHC
underwrote and administered. Like the Plaintiffs' son in the Utah
action, K.H.B. received mental health treatment at a wilderness
therapy program located in Utah. The Plaintiff received, opposed,
and appealed a denial of coverage letter sent from and to the post
office box of UHC's affiliate UBH in Utah. The Plaintiff asserts
several ERISA claims under the theory that the program provided him
with medically necessary treatment covered by his plan.
The Plaintiff originally brought these claims on behalf of all
wrongfully denied ERISA beneficiaries who had sought coverage for
treatment at a wilderness mental healthcare program. But after the
Defendant filed the motion to transfer venue, the Plaintiff amended
his class definition via an amended complaint to bring these claims
on behalf of the same putative nationwide class of ERISA
beneficiaries, but only those who were not denied coverage on the
basis of an exclusion or the "medically necessary" prerequisite.
Defendant UHC now moves to transfer venue to the District of Utah
under either the fist-to-file rule or 28 U.S.C. Section 1404(a).
Alternatively, it moves to stay the action. The Plaintiff opposes.
Judge Alsup finds that transferring the action to the District of
Utah will be more efficient and convenient for the courts, the
witnesses, and the parties, particularly because one judge should
assess the upcoming Rule 23 class certification motion for both of
these similar actions predicated on similar sets of underlying
facts. The possibility of consolidation of the actions, or
coordination of discovery and other procedures, promotes the
Section 1404(a) goals of conserving time, energy, and money, and
avoids the risk of inconsistent judgments. Because the majority of
factors favor transfer to Utah, doing so does more than shift
inconvenience. The Utah judge has the problem at hand. It would
be counterproductive and potentially embarrassing for the
undersigned judge to second-guess his decisions from afar.
The Judge also finds that allowing the action, which the Plaintiff
urges is based only upon the coverage grant in his benefits plan,
to proceed independently in a different forum despite the
substantial overlap of issues with the Utah action presents a
significant possibility of inconsistent results. Centralized
adjudication of these factually similar actions will avoid the
possibility of any inconsistent judgments and facilitate efficient
navigation of discovery and procedural issues. Accordingly, his
order finds that the totality of the circumstances and reasons of
equity counsel in favor of transferring this action to the District
of Utah where venue is proper and a similar, first-filed action is
already underway.
For the foregoing reasons, Judge Alsup granted the Defendant's
motion to transfer, and denied its motion to stay. The Clerk will
transfer the action to the U.S. District Court for the District of
Utah.
A full-text copy of the Court's Oct. 10, 2018 Order is available at
https://is.gd/Tl6nUJ from Leagle.com.
VIGO COUNTY, IN: Partial Summ. Judgment Bid in Huerta Suit Granted
------------------------------------------------------------------
In the case, JAUSTON HUERTA, ET AL., Plaintiffs, v. GREG EWING, ET
AL., Defendants, Case No. 2:16-cv-00397-JMS-MJD (S.D. Ind.), Judge
Jane Magnus-Stinson of the U.S. District Court for the Southern
District of Indiana, Terre Haute Division, granted the Plaintiffs'
Motion for Partial Summary Judgment and granted certain injunctive
relief.
The case is brought on behalf of past and present inmates at the
Vigo County, Indiana Jail who claim that the Jail is overcrowded,
resulting in the violation of inmates' constitutional rights. The
Plaintiffs bring their lawsuit against Vigo County Sheriff Greg
Ewing, the Vigo County Commissioners, the Vigo County Council, and
several individual Commissioners and members of the Council.
There are many physical issues with the Jail, which the Defendants
do not dispute, including: (1) the HVAC system, which is old and
constantly in need of repair; (2) toilets and showers that are in
need of repairs; (3) an insufficient number of toilets and showers;
(4) inadequate lighting; (5) substandard air flow; (6) dirty air
vents; (7) a leaky roof, which results in wet floors; (8) the
existence of black mold; and (9) a kitchen that is inadequate to
serve the needs of the Jail population.
The Plaintiffs initiated the action on Oct. 13, 2016, and filed the
operative Amended Complaint on Nov. 22, 2016. They assert claims
for due process violations under the Eighth and Fourteenth
Amendments to the United States Constitution. They seek an
injunction prohibiting the Defendants from continuing to deprive
them of their constitutional rights, a mandate that the
Commissioners and the Council appropriate sufficient funds to
repair the present Jail or in the alternative, to mandate the Vigo
County Commissioners, and County Council members, to alleviate the
present conditions in the Jail or construct a new jail in
conformity with recommendations to be made by the Indiana
Department of Corrections, and damages.
On May 19, 2017, the Court certified -- only for the purposes of
declaratory and injunctive relief, and not for any personal injury
claims -- a class of all inmates in the care and custody of Vigo
County, Indiana from Oct. 13, 2016 to the present, including the
current and future inmates who are or will be incarcerated in the
Vigo County Jail and all current and future individuals who were
transported to other county jails as a result of the overcrowding
in the Vigo County Jail.
By agreement of the parties, the Court subsequently revised the
class definition to any and all persons currently confined, or who
will in the future be confined, in the Vigo County Jail.
The Plaintiffs have moved for partial summary judgment on their
declaratory and injunctive relief claims, leaving the damages
claims of the named Plaintiffs for trial. The Court held a hearing
on the motion on Sept. 21, 2018.
Judge Magnus-Stinson finds that the litigation has been pending
just a few days short of two years, and the issue of overcrowding
has been in litigation for nearly a decade. He is mindful that the
Indiana General Assembly compounded an already existing problem
with the passage of House Bill 1006. Nevertheless, until the
recent passage of the LOIT ordinance, there had been minimal
progress toward alleviating the unconstitutional conditions at the
Jail.
The Defendants -- and those who may succeed them on January 1 --
should understand that the Court's forbearance in the injunctive
relief it has crafted is in express reliance on the passage of the
ordinance and the stated intention to fund a new constitutionally
adequate jail. The Court will continue in its restraint as long as
the responsible elected officials, the Defendants, perform their
constitutional duty. But the time for a solution is now, not when
financial circumstances have improved or until all of Vigo County's
citizens agree on the size and location of a new jail. The Public
officials are accountable to the citizens, but they also are
accountable to an oath sworn to uphold the Constitution regardless
of dissent or dispute from the public.
The Judge holds that the objective now is to make demonstrable
progress toward a solution, without further delay. Delay risks the
establishment of a three-judge panel and even more draconian
outcomes such as mandated reduction in jail population or, at the
extreme, closure of the Jail. Surely no public official desires
such an outcome. The Court remains confident that Vigo County can
solve this problem. But, if it fails to do so, the Court will do
what the law permits to solve the problem for Vigo County.
For these reasons, Judge Magnus-Stinson granted the Plaintiffs'
Motion for Partial Summary Judgment as set forth.
A full-text copy of the Court's Oct. 10, 2018 Order is available at
https://is.gd/rUkWhC from Leagle.com.
JAUSTON HUERTA, Individually and o/b/o present and future inmates
of Vigo County Jail, THOMAS BOLTON, JR., Individually and o/b/o the
Present and Future Inmates of Vigo County Jail, CURTIS GILLIE,
Individually and o/b/o the Present and Future Inmates of Vigo
County Jail, CARL SHERB, Individually and o/b/o the Present and
Future Inmates of Vigo County Jail, DEREK HICKS, Individually and
o/b/o the Present and Future Inmates of Vigo County Jail & DURAND
RANDLE, Individually and o/b/o The Present and Future Inmates of
Vigo County Jail, Plaintiffs, represented by Kenneth J. Falk, ACLU
OF INDIANA & represented by Michael K. Sutherlin --
msutherlin@michaelsutherlin.com -- MICHAEL K. SUTHERLIN &
ASSOCIATES, PC.
GREG EWING, Individually and in his official capacity as Sheriff of
Vigo County, Defendant, represented by Craig Morris McKee --
cmmckee@wilkinsonlaw.com -- WILKINSON, GOELLER, MODESITT, WILKINSON
& DRUMMY, David P. Friedrich -- dpfriedrich@wilkinsonlaw.com --
WILKINSON GOELLER MODESITT WILKINSON AND DRUMMY & Michael James
Wright, MICHAEL J. WRIGHT, ATTORNEY AT LAW.
VIGO COUNTY COMMISSIONERS, VIGO COUNTY COUNCIL, BRAD ANDERSON, In
official role as Vigo County Commissioner, JUDY ANDERSON, In
official role as Vigo County Commissioner, JON MARVEL, In official
role as Vigo County Commissioner, MIKE MORRIS, In official role as
Vigo County Council, MARK D. BIRD, In official role as Vigo County
Council, RICK BURGER, In official role as Vigo County Council,
TIMOTHY CURLEY, In official role as Vigo County Council, KATHY
MILLER, In official role as Vigo County Council, ED PING, In
official role as Vigo County Council & BILL THOMAS, In official
role as Vigo County Council, Defendants, represented by David P.
Friedrich, WILKINSON GOELLER MODESITT WILKINSON AND DRUMMY &
Michael James Wright, MICHAEL J. WRIGHT,ATTORNEY AT LAW.
VITALE'S PIZZERIA: Callier Moves to Certify Class Under FLSA
------------------------------------------------------------
The Plaintiff in the lawsuit titled MONICA CALLIER v. VITALE'S
PIZZERIA OF HUDSONVILLE, LLC, Et Al., Case No. 1:18-cv-00804-ESC
(W.D. Mich.), seeks an order conditionally certifying a collective
action for unpaid wages pursuant to the Fair Labor Standards Act
defined as:
Current and former hourly employees of Vitale's Pizzeria of
Hudsonville, LLC, and/or Maurizio LoGiudice who worked in
excess of forty (40) hours during a workweek at any time
after July 19, 2015.
Ms. Callier also asks the Court to:
a. compel the Defendants to provide her with the names, all
known addresses, e-mail addresses and cell phone numbers of
the potential Collective members;
b. authorize notice to be sent to the Collective members with
a 90 day opt-in period; and
c. appoint Avanti Law Group, PLLC, as interim class
counsel.[CC]
The Plaintiff is represented by:
Robert Anthony Alvarez, Esq.
Agustin Henriquez, Esq.
AVANTI LAW GROUP, PLLC
600 28th St. SW
Wyoming, MI 49509
Telephone: (616) 257-6807
E-mail: ralvarez@avantilaw.com
- and -
Eric Matwiejczyk, Esq.
LAW OFFICES OF DUFF, CHADWICK AND ASSOCIATES
220 W Main St.
Ionia, MI 48846
Telephone: (616) 527-0020
E-mail: ericm@duffchadwickpc.com
WALT DISNEY: Valenzuela Seeks Certification of 2 Employees Class
----------------------------------------------------------------
The Plaintiffs in the lawsuit titled JOSE VALENZUELA and ERICA CHO,
individuals, on behalf of themselves, and on behalf of all persons
similarly situated v. WALT DISNEY PARKS AND RESORTS U.S., INC.; and
Does 1 through 50, Inclusive, Case No. 8:17-cv-01988-JVS-DFM (C.D.
Cal.), moves for certification of two classes of employees defined
as:
a. The "Overtime Class":
All individuals employed by Defendant in California as a
non-exempt employee during the time period September 22,
2013 to the date of the Court's Order certifying the
Overtime Class who in addition to their straight time
hourly wage rate received one or more premium payments in a
workweek for the performance of additional responsibilities
or for working during certain hours of operations ("Premium
Payments") and who worked more than 40 hours in that
workweek thereby entitling them to overtime compensation;
and
b. The "Meal/Rest Premium Class":
All individuals employed by Defendant in California as a
non-exempt employee during the time period September 22,
2013 to the date of the Court's Order certifying the
Meal/Rest Premium Class who received a 1-hour payment from
Defendant for a meal or rest period during the same pay
period they received one or more Premium Payments.
The Plaintiffs also ask the Court to approve them as class
representatives and to appoint Blumenthal Nordrehaug Bhowmik De
Blouw LLP as class counsel.
The Court will commence a hearing on December 17, 2018, at 1:30
p.m., to consider the Motion.[CC]
The Plaintiffs are represented by:
Norman B. Blumenthal, Esq.
Kyle R. Nordrehaug, Esq.
Aparajit Bhowmik, Esq.
Piya Mukherjee, Esq.
BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW LLP
2255 Calle Clara
La Jolla, CA 92037
Telephone: (858)551-1223
Facsimile: (858) 551-1232
E-mail: norm@bamlawca.com
Kyle@bamlawca.com
aj@bamlawlj.com
piya@bamlawca.com
WECONNECT INC: Petitions Supreme Court for Writ of Certiorari
-------------------------------------------------------------
Defendant WeConnect, Incorporated, filed with the Supreme Court of
United States petitions for a writ of certiorari in the matter
entitled WeConnect, Incorporated, Petitioner vs. Brooks Goplin,
Case No. 18-520.
Responses are due on November 19, 2018.
As previously reported in the Class Action Reporter, the Seventh
Circuit affirmed the District Court's judgment denying the
Defendant's Motion to Compel Arbitration in the case captioned
BROOKS GOPLIN, Plaintiff-Appellee v. WECONNECT, INCORPORATED,
Defendant-Appellant, No. 18-1193 (7th Cir.).
The decision of the District Court is affirmed and the case is
remanded for further proceedings. The District Court case is
styled BROOKS GOPLIN v. WECONNECT, INCORPORATED, Case No.
3:17-cv-00773-jdp, in the U.S. District Court for the Western
District of Wisconsin.
Brooks Goplin worked for WeConnect, Inc. When he began his
employment, he signed an arbitration agreement called the AEI
Alternative Entertainment Inc. Open Door Policy and Arbitration
Program. The agreement referred to an entity named AEI throughout;
it never mentioned We-Connect.
The District Court held that WeConnect failed to meet its burden of
demonstrating that it was a party to the arbitration agreement or
otherwise entitled to enforce it. It discounted the affidavit from
the Director of Human Resources as conclusory and noted that
WeConnect's own website indicates that AEI ceased to exist in
September 2016, when it merged with WeConnect Enterprise Solutions
to form We-Connect, Inc. Because the District Court found that AEI
isn't just another name for WeConnect, it denied WeConnect's motion
to compel arbitration.
WeConnect filed a motion for reconsideration. The District Court
denied the motion.[BN]
Defendant-Petitioner WeConnect, Incorporated, is represented by:
R. George Burnett, Esq.
LAW FIRM OF CONWAY, OLEJNICZAK & JERRY, S.C.
231 South Adams Street
Green Bay, WI 54301
Telephone: (920) 437-0476
E-mail: gb@lcojlaw.com
WINDSTREAM COMMS: Summary Judgment in Kimberling Suit Affirmed
--------------------------------------------------------------
In the case, Ronald Kimberling, Michael Corlis, Deborah Corlis,
Larry G. Hutcheson, Deborah Hutcheson, and D.A. Allen, a class of
persons similarly situated, Plaintiffs Below, Petitioners, v.
Windstream Communications, Inc., Defendant Below, Respondent, Case
No. 17-0763 (W.Va. App.), the Supreme Court of Appeals of West
Virginia affirmed the two orders of the Circuit Court of Braxton
County, entered on July 29, 2017, that denied the named Plaintiffs'
motion to certify a class and granted Windstream's motion for
partial summary judgment on the named Plaintiffs' claim for
trespass.
The Court has considered the parties' briefs and the record on
appeal. Upon consideration of the standard of review, the briefs,
and the record presented, it finds no substantial question of law
and no prejudicial error.
The Petitioners are owners of real property in Braxton County.
Their predecessors-in-title granted rights-of-way to Monongahela
Power Co. for the construction, maintenance, alteration or removal
of an electric distribution system and telephone system. Mon Power
later (as the designated "owner" of the poles and anchors) entered
into an agreement with the Respondent (the designated "licensee")
to allow for fiber optic cable installation for the provision of
broadband internet service.
The pole attachment agreement provided that Mon Power, as the
owner, could request of the licensee appropriate documentation
demonstrating that the licensee possesses a permit, franchise,
necessary rights-of-way or easements or other right to place its
facilities within private property or the public rights of way.
The Respondent was not granted easements or rights-of-way by the
Petitioners, and it relied on Mon Power's easements for its own
entry onto the Petitioners' land. After the Respondent began cable
installation, the Petitioners filed a complaint in the Circuit
Court of Braxton County asserting trespass.
The Petitioners moved to certify their trespass claim as a class
action. Around the same time that the Petitioners moved to certify
the class, the Respondent moved for partial summary judgment on the
claim asserted against it. The circuit court granted the motion by
order entered on July 29, 2017. It denied the motion for class
certification by order entered on the same date as the order
granting summary judgment. It explained that petitioners had
satisfied none of the four prerequisites to class certification set
forth in Rule 23 of the Rules of Civil Procedure.
On appeal, the Petitioners assert two assignments of error. They
argue, first, that the circuit court erred in granting summary
judgment because there are material disputes of fact on the
question of whether the Respondent could enter their land under Mon
Power's easements for the purpose of installing fiber optic cable.
They argue, second, that the circuit court erred in denying their
motion for class certification.
The Court finds that the facts presented by the Petitioners do not
degrade the easements between Mon Power and the landowners. Those
easements permitted entry onto the land for the construction,
maintenance, alteration or removal of an electric distribution
system and telephone system including all necessary rights to add
additional wires.
The Court agrees with the circuit court that the Respondent's use
did not exceed the authority of the easements and therefore did not
constitute trespass, which the Court has defined as an entry on
another man's ground without lawful authority, and doing some
damage, however inconsiderable, to his real property. The circuit
court did not err in granting the Respondent's motion for summary
judgment.
Having found the circuit court's grant of summary judgment
supported by the appendix record on appeal, the Court holds it need
not consider the circuit court's denial of the Petitioner's motion
to certify a class.
For these reasons, the Court affirmed.
A full-text copy of the Court's Oct. 10, 2018 Order is available at
https://is.gd/nmt1go from Leagle.com.
WIRELESS VISION: Court Issues Protective Order in Arteaga FLSA Suit
-------------------------------------------------------------------
Judge Pamela Pepper of the U.S. District Court for the Eastern
District of Wisconsin approved the parties' stipulation for entry
of protective order in the case, MERCEDES ARTEAGA, on behalf of
herself and all others similarly situated, Plaintiff, v. WIRELESS
VISION, LLC, a Michigan limited Liability Company, Defendant, Case
No. 18-cv-621-pp (E.D. Wis.).
On Oct. 3, 2018, the parties filed a stipulation for entry of a
protective order. Based on the parties' stipulation and the
factual representations set forth therein, the Judge finds that
exchange of sensitive information between or among the parties
and/or third parties other than in accordance with her Order may
cause unnecessary damage and injury to the parties or to others.
She further finds that the terms of the Order are fair and just and
that good cause has been shown for entry of a protective order
governing the confidentiality of documents produced in discovery,
answers to interrogatories, answers to requests for admission, and
deposition testimony.
All documents and materials produced or received in the course of
discovery of the case, including initial disclosures, responses to
discovery requests, all deposition testimony and exhibits, and
information obtained by third-party subpoenas, as well as all
copies, excerpts, quotes or summaries of such discovery, are
subject to the Protective Order concerning Confidential
Information. As there is a presumption in favor of open and public
judicial proceedings in the federal courts, the Protective Order
will be strictly construed in favor of public disclosure and open
proceedings wherever possible.
The deposition testimony will be deemed confidential only if
designated as such when the deposition is taken or within 14 days
after receipt of the deposition transcript by notifying all other
counsel in writing of the claim of confidentiality. Such
designation must be specific as to the portions of the transcript
and/or any exhibits to be protected. There will be no need to
re-designate documents or exhibits which have been previously
designated as Confidential Information.
The parties must take reasonable efforts to prevent unauthorized or
inadvertent disclosure of documents designated as containing
Confidential Information pursuant to the terms of the Protective
Order. Without written permission from the designating party or a
Court order secured after appropriate notice to all interested
persons, a party may not file in the public record in the action
any Confidential Information.
A party that elects to challenge a confidentiality designation may
file and serve a motion that identifies the challenged material and
sets forth in detail the basis for the challenge. The burden of
proving the necessity of a confidentiality designation remains with
the party asserting confidentiality. Until the Court rules on the
challenge, all parties must continue to treat the materials as
Confidential Information under the terms of the Protective Order.
Within 30 days after the litigation concludes by settlement, final
judgment, or final order, all documents designated as containing
Confidential Information, regardless of when designated, must be
returned to the party who previously produced the document.
With respect to any improper disclosure of Confidential Information
by the Plaintiff(s), including without limitation, the opt-in
Plaintiffs, the Defendant will be entitled to appropriate remedies
with respect to any action to enforce the provisions of the
Protective Order.
A full-text copy of the Court's Oct. 12, 2018 Protective Order is
available at https://is.gd/f8MuKd from Leagle.com.
Mercedes Arteaga, Plaintiff, represented by David M. Potteiger ,
Walcheske & Luzi LLC, James A. Walcheske --
jwalcheske@walcheskeluzi.com -- Walcheske & Luzi LLC, Matthew J.
Tobin -- mtobin@walcheskeluzi.com -- Walcheske & Luzi LLC & Scott
S. Luzi -- sluzi@walcheskeluzi.com -- Walcheske & Luzi LLC.
Wireless Vision LLC, Defendant, represented by Barry L. Chaet, Beck
Chaet Bamberger & Polsky SC & Joseph S. Streb --
streblaw@sbcglobal.net -- Joseph S Streb Co LPA.
*********
S U B S C R I P T I O N I N F O R M A T I O N
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Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors.
Copyright 2018. All rights reserved. ISSN 1525-2272.
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