/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/181116.mbx C L A S S A C T I O N R E P O R T E R Friday, November 16, 2018, Vol. 20, No. 230 Headlines 212 SERVICES: Sanchez-Marin Seeks Unpaid Wages under FLSA AARGON AGENCY: Stone Class Settlement Has Prelim Court Approval ABC CORPORATION: Rubi et al. Seek Unpaid Wages under FLSA ADVANCED MICRO: Bid to Dismiss Kim Class Suit Underway AIR CANADA: Supreme Court Clears Way for Class-Action Lawsuit ALABAMA: Court Clarifies ADOC Staffing Increases in Remedial Order ALDEN SHOE: Website Not Accessible, Figueroa Suit Alleges ALLERGAN PLC: All Claims in Botox(R) Litigation Dismissed ALLERGAN PLC: Appeal Pending in Massachusetts Celexa/Lexapro Suit ALLERGAN PLC: Asacol Litigation Remanded to Massachusetts Court ALLERGAN PLC: Bid to Dismiss Suit vs. Warner Chilcott Pending ALLERGAN PLC: Court Denies Bid to Dismiss in Restasis(R) Class Suit ALLERGAN PLC: Court Grants Bid to Dismiss ERISA Complaint ALLERGAN PLC: Discovery Still Ongoing in Loestrin(R) 24 Litigation ALLERGAN PLC: Still Defends Namenda(R) Litigation AMERICAN AIRLINES: Settles Travelers' Class Action AMIGONE FUNERAL: Tonawanda Residents File Class Action Lawsuit ANTHEM INC: Appeals Filed in 9th Cir. after Settlement Approval ANTHEM INC: Still Defends Express Scripts/Anthem ERISA Litigation ASPIRE MARKETING: Rivera Sues over Unsolicited Text Messages ATLANTIC CREDIT: Vedernikov Sues over Debt Collection Practices ATRIUM HOSPITALITY: Fails to Pay Proper Wages, Hurtado Suit Says BANK OF AMERICA: Ct. Narrows Claims in 2nd Amended Antitrust Suit BARNSTORMERS BASKETBALL: Sued Over Ex-Coach's Sexual Exploitation BASF CORP: Tri-Iso Tryline Suit Moved to W.D. Pennsylvania BAU OF ILLINOIS: Underpays Kitchen Staff, Rodriquez Alleges BAY AREA: Montgomery Stayed Pending Kendrick/Kelly Appeal Ruling BAYER A.G.: Finishing Solutions Suit Moved to W.D. Pennsylvania BHP BILLITON: Faces Class Action Over Samarco Disaster BIRD RIDES: Faces Class-Action Lawsuit Over Gross Negligence BIRNER DENTAL: David Pill Balks at Merger Deal with Mid-Atlantic BLACKROCK: Employees Sue Over High Fees on 401(k)s BLUE CROSS: Sued for Denying Mental Health Services Claims BLUE LINE: Attorney Responds to Bid to Dismiss Speed-Camera Suit BOK FINANCIAL: Unit Defending Against Oklahoma Class Suit CALPERS: June 10 Trial Set for Insurance Plan Class Action CAMPING WORLD: Dec. 18 Lead Plaintiff Bid Deadline CAMPING WORLD: Kaskela Law Files Securities Class Action CAMPING WORLD: Robbins Geller Files Securities Class Action Suit CARDIFF BAY: Nivelle Seeks Unpaid Overtime Pay under FLSA CEMEX CONSTRUCTION: Grigoryan Labor Suit Remains in District Court CENTRE COUNTY: Removes Sheffer Suit to M.D. Pennsylvania CEPHALON INC: Summary Judgment in TCPA Suit Granted CHURCHILL DOWNS: Awaits Court Decision on Writ of Certiorari CHURCHILL DOWNS: Continues to Defend Kater Class Suit CITIGROUP INC: Bid for Approval of Settlement Filed in Libor Suit CITIGROUP INC: Bid to Dismiss SSA-Related Suit Okayed CITIGROUP INC: Contant Plaintiffs Seek Initial Settlement Approval CITIGROUP INC: Court Affirms Order Denying Bid to Expand Class CORIUM INTERNATIONAL: Wang Balks at Merger Deal with Gurnet CRAFTWORKS RESTAURANTS: Court Compels Arbitration in FLSA Suit CRAWFORD & CO: Court Determines Settlement Administrator's Role CREDIT PROTECTION: Court Grants Filing of Amended FDCPA Complaint DEVON ENERGY: 5th Cir. Flips Class Certification in Seeligson Suit DJ KHALED: Faces Class Suit as Endorser of Crypto Scam EDISON INTERNATIONAL: Appeal in 401(k) Plan-Related Suit Ongoing EDISON INTERNATIONAL: Appeal in Securities Class Suit Underway EDISON INTERNATIONAL: Faces 102 Suits Related to Thomas Fire EMERY FEDERAL: Court Approves $9MM Settlement in Palombaro Suit EXPRESS SCRIPTS: Awaits Court Decision on Plaintiffs' Appeal EXPRESS SCRIPTS: Bewley Suit Underway in District of New Jersey EXPRESS SCRIPTS: Claims in EpiPen ERISA Suit Narrowed EXPRESS SCRIPTS: Continues to Defend Beeman Suit EXPRESS SCRIPTS: Multiple Suits Related to Cigna Merger Underway EXPRESS SCRIPTS: Prescott Suit Underway in Dist. of New Jersey EXPRESS SCRIPTS: Still Defends Securities Class Suit F.H. CANN: Cosar Sues over Wrongful Debt Collection Practices FACEBOOK INC: Juggling GBP500,000 Fine for Analytica Scandal FACEBOOK INC: Wants Cambridge Analytica Class Action Tossed FIRST RATE: Fails to Pay Proper Wages, Esparza de Perez Alleges FORD MOTOR: Removes Payne Suit to Northern District of Ohio FOUR SEASONS: Fails to Pay Proper OT to Mechanics, Perez Claims FREDDIE MAC: Continues to Defend Jacobs and Hindes Suit FREDDIE MAC: Suit Over Preferred Stock Purchase Deal Ongoing FRITO-LAY INC: Sanchez Deal Prelim Approval Hearing Moved to Dec. 4 GENERAL ELECTRIC: Bid to Dismiss Mahar Class Suit Underway GENERAL ELETRIC: Bid to Dismiss 401(k) Plan-Related Suit Denied GENWORTH FINANCIAL: Unit Faces TVPX ARX INC. Suit in Virginia GMS REST: Pinguil Seeks Unpaid Overtime Pay under FLSA GOOGLE INC: Supreme Court Hears Arguments in Settlement Dispute GOOGLE LLC: Weeks et al Seek to Certify Class HAIN CELESTIAL: Faces Class Action Over Alba Botanica Sunscreen HAIN CELESTIAL: Removes Lindquist et al. Suit to N.D. California HERTZ TRANSPORTING: Class Certification Denied Without Prejudice HOLLINGSWORTH LOGISTICS: Fails to Pay Proper Wages, Laqui Claims HOLY SMOKE: Class Action Status Sought for Lawsuit HONDA MOTOR: Faces Class Action Over Vehicle CVT Problems HONEYWELL INT'L: Jan. 2 Lead Plaintiff Motion Deadline Set HOSOPO CORP: Loses Bid to Dismiss Keifer TCPA Suit HUMAN DEVELOPMENT: Dziura Seeks Unpaid Wages under Labor Law HUNTER TERRELL: Hernandez Seeks Unpaid Overtime Wages under FLSA INDIA GLOBALIZATION: Jan. 2 Lead Plaintiff Motion Deadline Set INTERCONTINENTAL EXCHANGE: Awaits Court OK on Bid to Dismiss Suit INTERNATIONAL BUSINESS: Appeal in NY ERISA Suit Still Pending JOHN HANCOCK: Faces Davydov Suit in Southern District of New York JOHNSON & JOHNSON: Arbitration in Remicade Antitrust Suit Junked JOHNSON & JOHNSON: Continues to Defend Contact Lens-Related Suit JOHNSON & JOHNSON: Continues to Defend Glucose Test Strips Suit JOHNSON & JOHNSON: Plaintiffs Refile Class Suit in Illinois JOHNSON & JOHNSON: Settlement in Blood Reagent Granted Initial OK JOHNSON & JOHNSON: Suits over Ethicon Pelvic Mesh Devices Pending JOHNSON & JOHNSON: XARELTO Suit in Louisiana Court Still Ongoing JPMORGAN CHASE: Court Grants Revised Settlement in FX-Related Suit JPMORGAN CHASE: Seeks Initial Approval of Interchange Case Accord JUNO THERAPEUTICS: Class Plaintiffs Can File Over-Length Motions KPMG LLP: Court Denies Bid to Dismiss Jones Suit LANDERS MCLARTY: Court Narrows Claims in Wilson Suit LEGACY PARTNERS: Underpays Maintenance Technicians, Suit Says LEGACY RESERVES: Court Approves Doppelt Settlement in Full LJM PARTNERS: Owes for 80% Loss to Fund, Class Suit Says LOUISIANA: Class Action Lawsuit Seeks Compensation MARCUS & MILLICHAP: Cox Suit Remanded to State Court MASSACHUSETTS: Trial Court Sued over Unpaid Wages & Overtime MATIMEX CORPORATION: Walsh Sues over Unwanted Text Messages MCDERMOTT INT'L: Unit Faces Cantrell Class Suit in Texas MDL 1720: Approval of New Interchange Fee Case Settlement Pushed MDL 2724: Court Disposes of Group 1 Dismissal Bids MDL 2862: Emma vs. BASF AG et al. over Isocyanate Sales Moved METRO-GOLDWYN-MAYER: Johnson Suit Settlement Has Final Approval MONITRONICS INT'L: Pays Remaining $23,000,000 in Telemarketing Suit MONSANTO COMPANY: Brunson Sues over Sale of Herbicide Roundup MONSANTO COMPANY: Kathryn Hill Sues over Herbicide Roundup Sales MSG HOLDINGS: Fraticelli FLSA/NYLL Suit Settlement Has Approval NESTLE USA: Coffee-mate Has Unsafe Additive, Beasley Claims NOBLE HOUSE: Court Certifies 2 Classes in Holt Suit NOBLES COUNTY, MN: Making Unlawful Immigrant Arrests, Judge Rules OKLAHOMA: Lawsuit Targets Medical Marijuana Registration P.A.M. TRANSPORT: Bid to Strike Offer of Judgment in Browne Denied PANERA BREAD: FLSA & DCMWA Classes in Meyer Conditionally Certified PBF ENERGY: Continues to Defend Goldstein Class Action PBF ENERGY: Faces Class Action by Michelle & Jim Kendig PEACEHEALTH: Sued for Allegedly Overbilling Medicare Patients POINT BLANK: Court Denies Motion for Class Certification PROVIDENT CAPITAL: Court Approves $28.5MM Class Action Settlement RAYMOND JAMES: Judge Grants Former Client's Lawsuit Class Status REMINGTON: Settlement in Class Suit Will Replace Defective Trigger RIPPLE LABS: Consolidated Class Action Moves to Federal Court SACRAMENTO CTY, CA: Protective Order Issued in Mays Prisoners Suit SIERRA TRADING: Chen Suit Moved to Western District of Washington SKAGIT REGIONAL: Faces McLean and Range Suit in W.D. Washington SONIC CORP: Patrick Balks at Inspire Brands Merger Deal SONY CORP: Supreme Court to Hear Antitrust Case on Dec. 11 SPAR GROUP: Clothier Seeks Unpaid Wages under Labor Code ST. JOSEPHS: Court Approves $11.9MM Settlement STEPHEN EINSTEIN: Henry Alleges Wrongful Debt Collections STUCKY LAUER: Court Approves Settlement in Maloy FDCPA Suit SUUNTO: Settles Class-Action Lawsuit for Certain Dive Computers TENNESSEE: Prelim Injunction Bid in Robinson Suit Partly Okayed TESLA INC: Class Action Settlement Obtains Final Court Okay TEXAS: 5th Cir. Vacates Certification of 2 Classes in J. Ward Suit TRANS EXPRESS: Fails to Pay OT to Drivers, Simmons Suit Claims TRUNKETT & TRUNKETT: Wins Dismissal of FDCPA Suit ULTRA SONIC: Underpays Car Wash Attendants, Blanco et al. Claim UNITED KINGDOM: Court Rules in Favor of PSNI, Police Authority UNITED STATES: Veterans File Class Action Over Benefits UNLIMITED HEIGHTS: Govantes Seeks Unpaid Wages under FLSA US EDUC DEPARTMENT: Secretary Faces Quero et al. Suit in S.D.N.Y. US METALS: Court Denies Filing of 2nd Amended Duarte Suit VALLEY BROOK, OK: Attorneys File Class Action Lawsuit VERMYCK LLC: Gomes et al. Sue over Rental Tax Incentives WINS FINANCE: Opposition to Desta Class Cert. Bid Due Dec. 1 YMCA: Class Action Over Evictions Thwarted by Missing Agreement ZOAN MANAGEMENT: Or. High Court Remands Arbitration Matters [*] ALRC Chief Takes Aim at "Trafficking" of Class Actions [*] IMF Bentham to Fund Property Owners' Cladding Class Action [*] JND Bags Settlement Service Contracts with Federal Agencies [*] Langlois Lawyer Discusses Steps to Minimize Privacy Class Suit [*] Opting Out of Class Action Makes More Sense in Some Situations [*] US Chamber of Commerce Urges Reform for Securities Law Asbestos Litigation ASBESTOS UPDATE: 3M Accrues $29MM Aearo-Related Costs at Sept. 30 ASBESTOS UPDATE: 3M Co. Accrues $600MM for Respirator Lawsuits ASBESTOS UPDATE: 3M Co. Still Faces 2,255 Claimants at Sept. 30 ASBESTOS UPDATE: 5th Cir. Dismisses Williams Consolidated Appeals ASBESTOS UPDATE: Carlisle Cos. Still Faces Claims at Sept. 30 ASBESTOS UPDATE: Colfax Had $54.6MM Accrued Liability at Sept. 28 ASBESTOS UPDATE: Colfax Had 16,269 Unresolved Claims at Sept. 28 ASBESTOS UPDATE: Equity LifeStyle, DAs Still in Talks at Sept. 30 ASBESTOS UPDATE: Ingersoll-Rand Had $561MM Liabilities at Sept. 30 ASBESTOS UPDATE: Lopez P.I. Claims vs. McDermott Dismissed ASBESTOS UPDATE: Michel P.I. Suit Remains in District Court ASBESTOS UPDATE: MSA Safety Unit Has 1,517 Exposure Lawsuits ASBESTOS UPDATE: Norfolk Southern Still Defends Asbestosis Claims ********* 212 SERVICES: Sanchez-Marin Seeks Unpaid Wages under FLSA --------------------------------------------------------- ELVIA SANCHEZ-MARIN, individually and on behalf of all others similarly situated, the Plaintiff, vs. 212 SERVICES, LLC and ADESANOLA OLADIRAN, as an individual, Case 1:18-cv-06050-DLI-SJB (E.D.N.Y., Oct. 29, 2018), seeks compensatory damages and liquidated damages in an amount exceeding $100,000.00, interest, attorneys' fees, costs, and all other legal and equitable remedies this Court deems appropriate, as a result of Defendants violations of the Fair Labor Standards Act and the Federal and New York State labor laws. According to the complaint, although Plaintiff worked approximately 90 or more per week during her employment by Defendants from in or around March 2017 until in or around April 2018, the Defendants did not pay Plaintiff time and a half (1.5) for hours worked over 40, a blatant violation of the overtime provisions contained in the FLSA and NYLL. The Defendants willfully failed to post notices of the minimum wage and overtime wage requirements in a conspicuous place at the location of their employment as required by both the NYLL and the FLSA, the lawsuit says.[BN] Attorneys for Plaintiffs: Roman Avshalomuv, Esq. HELEN F. DALTON & ASSOCIATES, P.C. 69-12 Austin Street Forest Hills, NY 11375 Telephone: (718) 263-9591 Facsimile: (718) 263-9598 AARGON AGENCY: Stone Class Settlement Has Prelim Court Approval --------------------------------------------------------------- The United States District Court for the District of Minnesota issued an Order granting Plaintiffs' Motion for Preliminarily Approving Class Action Settlement in the case captioned Gregory Love Stone, on behalf of himself and all others similarly situated, Plaintiff, v. Aargon Agency, Inc., d/b/a Aargon Collection Agency, Defendant. Case No. 17-cv-02314-KMM. (D. Minn.). The Court, having held a Final Approval hearing, notice of the hearing having been duly given in accordance with this Court's Order (1) Preliminarily Approving Class Action Settlement, (2) Approving Class Action Notice, (3) Certifying a Settlement Class, (4) Appointing Class Counsel and a Class Representative, and (5) Setting Final Approval Hearing (Preliminary Approval Order), and having considered all matters submitted to it at the Final Approval Hearing and otherwise, and finding no just reason for delay in entry of this Final Approval Order and good cause appearing therefore, The Court finally approves the Settlement and finds that the terms constitute, in all respects, a fair, reasonable, and adequate settlement as to all Settlement Class Members in accordance with Rule 23 of the Federal Rules of Civil Procedure. The Court finally certifies the Settlement Class for settlement purposes. The Court finds for settlement purposes that the Action satisfies all the requirements of Rule 23 of the Federal Rules of Civil Procedure. The Court approves the plan of distribution for the Settlement Award as set forth in the Agreement. The Settlement Administrator is ordered to comply with the terms of the Agreement with respect to distribution of Settlement Awards, and the disposition of any remaining funds thereafter. Should any remaining funds be distributed, the Court approves the University of Minnesota Law School Consumer Law Clinic as the cy pres recipient. This Court dismisses this Action, with prejudice, without costs to any Party, except as expressly provided for in the Agreement. A full-text copy of the District Court's October 25, 2018 Order is available at https://tinyurl.com/yc93pkou from Leagle.com. Gregory Love Stone, on behalf of himself and all others similarly situated, Plaintiff, represented by Adam R. Strauss, Tarshish Cody, PLC, Scott Matthew Cody, Tarshish Cody, PLC & Thomas J. Lyons, Jr. , Consumer Justice Center P.A. Aargon Agency, Inc., doing business as Aargon Collection Agency, Defendant, represented by Christopher R. Morris -- cmorris@bassford.com -- Bassford Remele, Jessica L. Klander -- jklander@bassford.com -- Bassford Remele & Michael A. Klutho -- mklutho@bassford.com -- Bassford Remele. ABC CORPORATION: Rubi et al. Seek Unpaid Wages under FLSA --------------------------------------------------------- JOSE RUBI, EDUAR ALMENDAREZ, and REYNALDO REYES, individually and on behalf of all others similarly situated, the Plaintiff, vs. "ABC CORPORATION" D/B/A RIVER HOUSE GRILLE, name of the corporation being fictitious and unknown to Plaintiffs, and GENNARO VILLANI and ANTHONY VILLANI, as individuals, the Defendants, Case No. 2:18-cv-06040-JMA-AKT (E.D.N.Y., Oct. 29, 2018), seeks compensatory damages and liquidated damages in an amount exceeding $100,000.00, interest, attorneys' fees, costs, and all other legal and equitable remedies this Court deems appropriate, as a result of Defendants' violations of the Fair Labor Standards Act and the Federal and New York State labor laws. According to the complaint, although the Plaintiff worked approximately 78 hours per week from in or around April 2013 until in or around October 2015, during his employment with Defendants, they did not pay Plaintiff 1.5 times for hours worked over 40, a blatant violation of the overtime provisions contained in the FLSA and NYLL. Furthermore, although Plaintiff worked approximately 13 or more hours per day. Defendants did not pay Plaintiff an extra hour at the legally prescribed minimum wage for each day worked over 10 hours, a blatant violation of the spread of hours provisions contained in the NYLL. ABC Corporation manufactures and markets housekeeping, janitorial, and engineering products for the cleaning industry.[BN] Attorneys for Plaintiffs: Roman Avshalomuv, Esq. HELEN F. DALTON & ASSOCIATES, P.C. 69-12 Austin Street Forest Hills, NY 11375 Telephone: (718) 263-9591 Facsimile: (718) 263-9598 ADVANCED MICRO: Bid to Dismiss Kim Class Suit Underway ------------------------------------------------------ Advanced Micro Devices, 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 29, 2018, that company is awaiting a ruling on its motion to dismiss the Kim et al. v. AMD, et al. class action complaint. On January 16, 2018, a putative class action lawsuit captioned Kim et al. v. AMD, et al., Case No. 3:18-cv-00321 was filed against the Company in the United States District Court for the Northern District of California. The complaint purports to assert claims against the Company and certain individual officers for alleged violations of Sections 10(b) and 20(a) of the Exchange Act, and Rule 10b-5 of the Exchange Act. The plaintiff seeks to represent a proposed class of all persons who purchased or otherwise acquired the Company's common stock during the period February 21, 2017 through January 11, 2018. The complaint seeks damages allegedly caused by alleged materially misleading statements and/or material omissions by the Company and the individual officers regarding a security vulnerability (Spectre), which statements and omissions, the plaintiff claims, allegedly caused the Company's common stock price to be artificially inflated during the purported class period. The complaint seeks unspecified compensatory damages, attorneys' fees and costs. On August 3, 2018, plaintiffs filed an amended complaint with similar allegations and shortening the class period to June 29, 2017 through January 11, 2018. The Company filed a motion to dismiss plaintiffs' claims on September 25, 2018. Based upon information presently known to management, the Company believes that the potential liability, if any, will not have a material adverse effect on its financial condition, cash flows or results of operations. Advanced Micro Devices, Inc. operates as a semiconductor company worldwide. It operates in two segments, Computing and Graphics; and Enterprise, Embedded and Semi-Custom. Advanced Micro Devices, Inc. was founded in 1969 and is headquartered in Santa Clara, California. AIR CANADA: Supreme Court Clears Way for Class-Action Lawsuit ------------------------------------------------------------- Christopher Reynolds, writing for The Globe And Mail, reports that the Supreme Court of Canada has cleared the way for a class-action lawsuit against Air Canada and British Airways to proceed by dismissing an appeal by Canada's largest airline. Air Canada had sought to overturn a 2017 Ontario Court of Appeal ruling that provincial courts could hear the class-action case even though it includes foreign claimants. The decade-old lawsuit from three companies alleges price fixing on international cargo shipments by major airlines between 2000 and 2006. Linda Visser, Esq. -- linda.visser@siskinds.com -- a lawyer for the plaintiffs, says they have reached settlements totalling more than $29-million with all 14 defendants except Air Canada and British Airways. "From an access to justice perspective it's a significant decision, because there are few jurisdictions that actually have class action regimes. And often these types of claims are not economical to bring on an individual basis," Visser said. The lawsuit involves up to tens of thousands of class members, many of them exporters and freight forwarders that handle shipments ranging from flowers to fruits to zoo animals, she said. The plaintiffs are Ontario's Airia Brands Inc., Britain's StarTech.com Ltd. and Germany's Quick Cargo Service. Air Canada declined to comment, saying the case is before the courts. "The case confirms that the Ontario courts are a place where foreign claimants from around the world can come and start class actions," said Ranjan Agarwal, Esq. -- agarwalr@bennettjones.com -- a class-action defence lawyer at Bennett Jones. "It's been going on a long time, and it could still go on a lot longer. But now that the defendants have lost their big fight over jurisdiction, and given that the case has been certified" -- green-lighted by a lower court judge -- "most people would believe that this would lead to a settlement." In 2012, Air Canada paid $8-million in a U.S. class-action settlement agreement following allegations of anti-competitive air freight pricing, though the company did not admit liability. In March 2017, the European Commission fined Air Canada $30-million -- 11 airlines were fined about $1.2-billion in total -- for allegedly running a price-fixing cartel on cargo fuel and security surcharges between 1999 and 2006. An appeal to the General Court of the European Union is pending. Investigations by the U.S. Department of Justice and Canada's Competition Bureau into alleged price fixing wrapped up without charges. As of Dec. 31, 2016, Air Canada had set aside $17-million "relating to outstanding claims," according to a management document on the company's finances. "This provision is an estimate based upon the status of investigations and proceedings at this time and Air Canada's assessment as to the potential outcome for certain of them," the document states. October 25 dismissal by the Supreme Court orders Air Canada and British Airways to pay the three respondents' costs. Of the defendants that have settled, Air France -- KLM and Deutsche Lufthansa AG paid the most, shelling out $6.5 million and $6.2 million respectively, according to Siskinds law firm, which represents the plaintiffs. Appeal court justice Sarah Pepall's ruling from October of last year states Ontario courts have jurisdiction in the class action because there is a "substantial connection" between the claims and the province and the "absent foreign claimants" share "common issues" with the plaintiffs. [GN] ALABAMA: Court Clarifies ADOC Staffing Increases in Remedial Order ------------------------------------------------------------------ The United States District Court for the Middle District of Alabama, Northern Division, issued an Opinion and Order granting Defendants' Motion for Clarification in the case captioned EDWARD BRAGGS, et al., Plaintiffs, v. JEFFERSON S. DUNN, in his official capacity as Commissioner of the Alabama Department of Corrections, et al., Defendants. Civil Action No. 2:14cv601-MHT. (M.D. Ala.). At the contempt hearing, the defendants orally moved for clarification as to what staffing increases the remedial order required. The Plaintiffs in this class-action lawsuit include a group of mentally ill prisoners in the custody of ADOC. Defendants are Alabama Department of Correction (ADOC) Commissioner Jefferson Dunn and ADOC Associate Commissioner of Health Services Ruth Naglich, who are both sued in only their official capacities. This court found that ADOC's mental-health care for prisoners in its custody was, simply put, horrendously inadequate. The court issued an Understaffing Remedial Order that established deadlines by which the Alabama Department of Corrections (ADOC) was to increase its mental-health staffing. Subsequently, in a motion to require defendants to show cause why they should not be held in contempt, plaintiffs alleged that defendants have failed to meet these deadlines. The dispositive question here is what staffing increases the Understaffing Remedial Order required defendants to make by the third deadline. The Plaintiffs contend that the contract and court order require 263.2 FTE (full-time equivalent) mental-health staff by July 1, 2018. The route to this conclusion is straightforward. The contract mentioned in the order refers to the Healthcare Services Agreement that ADOC signed with its vendor Wexford Health Sources, Inc. for the latter to provide healthcare services to inmates in ADOC's custody. This contract expressly incorporates the Request for Proposal for Comprehensive Inmate Healthcare Services (RFP) issued by ADOC in July 2017, pursuant to which ADOC ultimately selected Wexford. Therefore, according to the plaintiffs, the order to "fill the mental-health staffing positions consistent with the contract" meant that defendants had to ensure that all 263.2 mental-health FTEs, by position types and locations as set forth in Appendix F, were filled by July 1, 2018. By contrast, defendants invoke a staffing paybacks provision in the contract to argue that the order did not require them to fill all of the 263.2 mental-health FTEs by July 1, 2018. Under the staffing-paybacks provision, Wexford must pay a penalty to ADOC if it fails to fill at an 85 % rate certain staff positions enumerated in the Minimum Staffing Requirements. Defendants claim that the 85 % threshold for triggering penalties on their vendor Wexford means that the order does not require filling 100 % of the 263.2 mental-health FTEs. The Plaintiffs' interpretation is correct and defendants' is unreasonable. The Order Requires Defendants to Ensure that All of the Mental-Health Positions Are Filled To start, a plain reading of the term Minimum Staffing Requirements in the contract shows that the order requires filling all 263.2 FTEs listed for the 25 positions. As discussed above, Appendix F of the contract, titled Minimum Staffing Requirements, ists how many FTE staff for each of the 25 positions must be placed at the central office and each facility. The word minimum means the smallest acceptable or possible quantity in a given case. The word requirement" means something that must be done an imperative command. Therefore, by providing in the Minimum Staffing Requirements the specific numbers of FTEs needed for each position at each facility, the contract creates an imperative command that the number of FTEs listed for each position at each facility amounting in total to 263.2 FTEs is the smallest acceptable quantity of FTEs. Failing to fill all 263.2 of the FTEs listed for the 25 types of positions is unacceptable. Perhaps more importantly, defendants' argument that the staffing payback provision's 85 % threshold means that the order requires less than 100 % and as low as 85 % of the 263.2 FTEs to be filled conflicts in two fundamental ways with how the contract says the staffing-payback provision actually functions. First, the contract establishes that payback penalties are imposed based on whether the required FTEs for a particular position at a particular facility are filled at an 85 % rate during a set period, not on whether globally 85 % of all 263.2 FTEs are filled. Second, the contract explicitly states and Associate Commissioner Naglich confirmed that whether Wexford meets the 85 % threshold is calculated based on the number of hours worked during a period, not the number of FTE staff that are employed to fill the positions at each facility. This fact is fatal to defendants' argument: the order to fill the mental-health staffing positions consistent with the contract" cannot mean to fill 85 % of the FTEs required for the 25 types of positions, given that the contract's 85 % threshold refers to the percentage of hours worked, not the percentage of required staff that is employed. To summarize, defendants' contention that the order to fill the mental-health staffing positions consistent with the contract allows Wexford to fill fewer than 263.2 FTEs is belied by a plain reading of the term Minimum Staffing Requirements in the contract, as well as the fact that the contract provides and Naglich confirmed that the 85 % threshold (1) is assessed on a position-by-position rather than global basis and (2) measures hours worked not the number of FTE staff that are employed to fill the positions at each facility. Accordingly, the court formally declares that the Understaffing Remedial Order required that, by July 1, 2018, defendants were to have filled all 263.2 of the mental-health FTEs. Measuring Compliance The next question is how to determine whether all 263.2 mental-health FTEs for the 25 types of positions are filled, in compliance with the order. First, in assessing compliance, the inquiry is not whether 263.2 mental-health FTEs of any kind are employed; rather, it is whether the FTE requirements for each position at each facility are met. In other words, defendants are not in compliance if Wexford employs 263.2 FTE mental-health clerks. To comply, Wexford must employ 0.50 FTE psychiatrists and 2.80 FTE licensed MHPs at the Easterling facility, and 2.0 FTE observers for the Bibb facility, and so forth, as enumerated by the Minimum Staffing Requirements. Second, determining whether Wexford employs all 263.2 FTEs is not a head count, that is, does not mean 263.2 individual employees. Instead, the contract indicates that one FTE equals 40 hours worked per week. Therefore, to determine whether Wexford is employing the 2.0 FTE psychiatrists at the Bullock facility (excluding outpatient) that the contract requires, the court assesses whether, adding together all the hours per week (or month) specified in Wexford's contracts with psychiatrists hired to work at Bullock, they amount to 2.0 FTEs. That is, the court evaluates whether Wexford has entered into contracts with psychiatrists to work at Bullock 80 (2 x 40) hours per week, or 320 (2 x 160) hours per month, etc., depending on what the appropriate measuring time period is. Accordingly, the Court ordered that the defendants' oral motion to clarify, made in open court on September 19, 2018, is granted to the extent that it is declared that the Phase 2A Understaffing Remedial Order and the ADOC contract referred to in it required that defendants were to ensure that all 263.2 mental-health FTEs listed in the contract's minimum staffing requirements were filled by July 1, 2018. A full-text copy of the District Court's October 29, 2018 Opinion and Order is available at https://tinyurl.com/yan92852 from Leagle.com. Edward Braggs, on behalf of himself and all others similarly situated, Tedrick Brooks, on behalf of himself and all others similarly situated, Gary Lee Broyles, on behalf of himself and all others similarly situated, Chandler Clements, on behalf of himself and all others similarly situated, Christopher Gilbert, on behalf of himself and all others similarly situated, Dwight Hagood, on behalf of himself and all others similarly situated, Sylvester Hartley, on behalf of himself and all others similarly situated, Christopher Jackson, on behalf of himself and all others similarly situated, Brandon Johnson, on behalf of himself and all others similarly situated, John Maner, on behalf of himself and all others similarly situated, Rick Martin, on behalf of himself and all others similarly situated, Willie McClendon, on behalf of himself and all others similarly situated, Roger McCoy, on behalf of himself and all others similarly situated, Jermaine Mitchell, on behalf of himself and all others similarly situated, Tommie Moore, on behalf of himself and all others similarly situated, Matthew Mork, on behalf of himself and all others similarly situated, Bradley Pearson, on behalf of himself and all others similarly situated, Leviticus Pruitt, on behalf of himself and all others similarly situated, Turner Rogers, on behalf of himself and all others similarly situated, Timothy Sears, on behalf of himself and all others similarly situated, Brian Sellers, on behalf of himself and all others similarly situated, Augustus Smith, on behalf of himself and all others similarly situated, Hubert Tollar, on behalf of himself and all others similarly situated, Daniel Tooley, on behalf of himself and all others similarly situated, Joseph Torres, on behalf of himself and all others similarly situated, Donald Ray Turner, on behalf of himself and all others similarly situated, Jamie Wallace, on behalf of himself and all others similarly situated, Robert Myniasha Williams, on behalf of himself and all others similarly situated, Roger Moseley, Quang Bui, Charlie Henderson, Sheila Allen, on behalf of herself and all others similarly situated, William Sullivan, on behalf of himself and all others similarly situated, Serena English, Valerie Wheeler, Justin Hall, Raymond Bosarge, Cordara Dunner, Karen Norris, Cherritha Harris, Brittany Ellis & Tomas Snyder, Plaintiffs, represented by Andrew Philip Walsh -- awalsh@bakerdonelson.com -- Baker Donelson Bearman Caldwell & Berkowitz PC, Jack Richard Cohen -- Richard.cohen@splcenter.org -- Southern Poverty Law Center, Latasha Lanette McCrary -- Latasha.mccrary@splcenter.org -- Southern Poverty Law Center, Maria Viette Morris, Southern Poverty Law Center, Patricia Clotfelter -- pclotfelter@bakerdonelson.com -- Baker Donelson Bearman Caldwell & Berkowitz PC, Rhonda C. Brownstein -- Rhonda.brownstein@splcenter.org -- Southern Poverty Law Center, William Glassell Somerville, III -- wsomerville@bakerdonelson.com -- Baker Donelson Bearman Caldwell & Berkowitz & William Van Der Pol, Jr. -- wvanderpoljr@adap.ua.edu -- Alabama Disabilities Advocacy Program. Ruth Naglich, in her official capacity as Associate commissioner of health Services for the Alabama Department of Corrections & Jefferson S. Dunn, in his official capacity as Commissioner of the Alabama Department of Corrections, Defendants, represented by David Randall Boyd -- dboyd@balch.com -- Balch & Bingham LLP, Elizabeth Anne Sees, Alabama Department of Corrections Legal Division, John Garland Smith -- jgsmith@balch.com -- Balch & Bingham LLP, Joseph Gordon Stewart, Jr., Alabama Dept of Corrections, Luther Maxwell Dorr, Jr. -- rdorr@maynardcooper.com -- Maynard, Cooper & Gale, P.C., Matthew Reeves -- mreeves@maynardcooper.com -- Maynard Cooper & Gale PC, Mitesh Bansilal Shah -- mshah@maynardcooper.com -- Maynard, Cooper & Gale, PC, Steven C. Corhern -- scorhern@balch.com -- Balch & Bingham, William Richard Lunsford -- blunsford@maynardcooper.com -- Maynard Cooper & Gale PC, Alyson Lee Smith -- asmith@maynardcooper.com -- Maynard Cooper & Gale PC, Gary Lee Willford, Jr., Alabama Department of Corrections Legal Division, Melissa K. Marler -- mmarler@maynardcooper.com -- Maynard, Cooper & Gale PC, Melissa Neri -- mneri@maynardcooper.com -- Maynard Cooper & Gale PC, pro hac vice & Stephen Clarence Rogers -- srogers@maynardcooper.com -- Maynard Cooper and Gale PC. ALDEN SHOE: Website Not Accessible, Figueroa Suit Alleges --------------------------------------------------------- JOSE FIGUEROA, individually and on behalf of all others similarly situated, Plaintiffs v. ALDEN SHOE COMPANY, INC., Defendant, Case No. 1:18-cv-05942 (E.D.N.Y., Oct. 24, 2018) alleges violation of the Americans with Disabilities Act The Plaintiff allege in the complaint that the Defendants' failed to design, construct, maintain, and operate its website, www.aldenshoe.com and www.aldenmadison.com, to be fully accessible to and independently usable by the Plaintiff and other blind or visually-impaired persons. The Defendants' denial of full and equal access to its website, and therefore denial of its products and services offered thereby and in conjunction with its physical locations, is a violation of the Plaintiff's rights under the Americans with Disabilities Act. Alden Shoe Company, Inc. designs and manufactures men's shoes and orthopedic shoes in New England. It offers moccasins, oxfords, slip-ons, flex welts, walkers, and dress casual footwear, as well factory restoration service kits. The company also provides accessories, such as belts, leather products, and shoe care products. It sells its products through retail stores and dealers in North America, Europe, and the Asia Pacific, as well as directly to consumers. Alden Shoe Company, Inc. was founded in 1884 and is based in Lakeville, Massachusetts. [BN] The Plaintiff is represented by: Jonathan Shalom, Esq. SHALOM LAW, PLLC 124-04 Metropolitan Avenue Kew Gardens, NY 11415 Telephone: (718) 971-9474 Facsimile: (718) 865-0943 E-mail: Jshalom@jonathanshalomlaw.com ALLERGAN PLC: All Claims in Botox(R) Litigation Dismissed --------------------------------------------------------- Allergan plc 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 a court has dismissed with prejudice all claims against Allergan in Botox(R) Litigation. A class action complaint was filed in federal court in California on February 24, 2015, and amended May 29, 2015, alleging unlawful market allocation in violation of Section 1 of the Sherman Act, 15 U.S.C. Section 1, agreement in restraint of trade in violation of 15 U.S.C. Section 1 of the Sherman Act, unlawful maintenance of monopoly market power in violation of Section 2 of the Sherman Act, 15 U.S.C. Section 2 of the Sherman Act, violations of California's Cartwright Act, Section 16700 et seq. of Calif. Bus. and Prof. Code, and violations of California's unfair competition law, Section 17200 et seq. of Calif. Bus. and Prof. Code. In the complaint, plaintiffs seek an unspecified amount of treble damages. On November 30, 2017, the parties reached a tentative settlement. On March 8, 2018, the court granted plaintiffs' motion for preliminary approval of class action settlement and set a final fairness hearing for August 24, 2018. On August 27, 2018, the court granted plaintiffs’ motion for final approval of class settlement. On September 10, 2018, the court dismissed with prejudice all claims against Allergan. Allergan plc, a pharmaceutical company, develops, manufactures, and commercializes branded pharmaceutical, device, biologic, surgical, and regenerative medicine products worldwide. It operates through US Specialized Therapeutics, US General Medicine, and International segments. Allergan plc was founded in 1983 and is headquartered in Dublin, Ireland. ALLERGAN PLC: Appeal Pending in Massachusetts Celexa/Lexapro Suit ----------------------------------------------------------------- Allergan plc 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 plaintiffs appeal in Celexa(R)/Lexapro(R) Class Actions, is still pending. Forest and certain of its affiliates were named as defendants in multiple federal court actions relating to the promotion of Celexa(R) and/or Lexapro(R) all of which were consolidated in the Celexa(R)/Lexapro(R) MDL proceeding in the federal district court in Massachusetts. Actions were filed in the federal district courts in Minnesota and Washington in November 2013 and August 2014, respectively, seeking to certify a nationwide class of third-party payor entities and consumers that purchased Celexa(R) and Lexapro(R) for pediatric use. The complaints each assert claims under the federal Racketeer Influenced and Corrupt Organizations ("RICO") Act, alleging that Forest engaged in an off-label marketing scheme and paid illegal kickbacks to physicians to induce prescriptions of Celexa(R) and Lexapro(R). The court denied both plaintiffs' class certification motions and entered summary judgment in favor of the Company in both actions. Plaintiffs in both cases have filed a Notice of Appeal of the summary judgment order and the order denying class certification. No further updates were provided in the Company's SEC report. Allergan plc, a pharmaceutical company, develops, manufactures, and commercializes branded pharmaceutical, device, biologic, surgical, and regenerative medicine products worldwide. It operates through US Specialized Therapeutics, US General Medicine, and International segments. Allergan plc was founded in 1983 and is headquartered in Dublin, Ireland. ALLERGAN PLC: Asacol Litigation Remanded to Massachusetts Court --------------------------------------------------------------- Allergan plc 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 appellate court in Asacol(R) Litigation, issued its decision reversing the lower court's decision on class certification and remanding the case back to the Massachusetts federal district court. Two class action complaints were filed on June 22, 2015, and three more on September 21, 2015, in federal court in Massachusetts on behalf of a putative class of indirect purchasers. Complaints were also filed on behalf of a putative class of direct purchasers of Asacol(R) making similar allegations to the complaints filed by the indirect purchaser plaintiffs. Those matters have been consolidated with the indirect purchaser cases. In each complaint plaintiffs allege that they paid higher prices for Warner Chilcott's Asacol(R) HD and Delzicol(R) products as a result of Warner Chilcott's alleged actions preventing or delaying generic competition in the market for Warner Chilcott's older Asacol(R) product in violation of U.S. federal antitrust laws and/or state laws. Plaintiffs seek unspecified injunctive relief, treble damages and/or attorneys' fees. The Company has settled the claims brought by the direct purchaser plaintiffs. The court granted the indirect purchaser plaintiffs' motion for class certification. The Company filed a motion for summary judgment seeking dismissal of the indirect purchaser plaintiffs' claims which the court denied on November 9, 2017. Trial was set to being on January 22, 2018. However, on January 17, 2018, the Court of Appeals for the First Circuit issued an order granting the Company's motion under Fed.R.Civ.P. 23(f) to appeal the district court's decision to certify the proposed class. The appellate court thereafter issued a decision staying the trial in the district court. On October 15, 2018, the appellate court issued its decision reversing the lower court's decision on class certification and remanding the case back to the district court. Allergan plc, a pharmaceutical company, develops, manufactures, and commercializes branded pharmaceutical, device, biologic, surgical, and regenerative medicine products worldwide. It operates through US Specialized Therapeutics, US General Medicine, and International segments. Allergan plc was founded in 1983 and is headquartered in Dublin, Ireland. ALLERGAN PLC: Bid to Dismiss Suit vs. Warner Chilcott Pending ------------------------------------------------------------- Allergan plc 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 motion to dismiss in Warner Chilcott Marketing Practices Litigation is pending. On February 13, 2018, a class action complaint was filed against Warner Chilcott and certain of its affiliates in the U.S. District Court for the District of Massachusetts. The Complaint asserts claims under the federal RICO statute, violations of number of state consumer protection statutes, common law fraud, and unjust enrichment with respect to the sale and marketing of certain products. The complaint seeks to certify a nationwide class of private payer entities, or their assignees, that paid Medicare benefits on behalf of their beneficiaries. On April 9, 2018, the plaintiffs filed an Amended Complaint, adding certain other Allergan subsidiaries as defendants. Defendants filed a motion to dismiss the Amended Complaint on June 11, 2018. Allergan plc, a pharmaceutical company, develops, manufactures, and commercializes branded pharmaceutical, device, biologic, surgical, and regenerative medicine products worldwide. It operates through US Specialized Therapeutics, US General Medicine, and International segments. Allergan plc was founded in 1983 and is headquartered in Dublin, Ireland. ALLERGAN PLC: Court Denies Bid to Dismiss in Restasis(R) Class Suit ------------------------------------------------------------------- Allergan plc 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 a New York court has denied the company's motion to dismiss in Restasis(R) Class Action Litigation. Between November 7, 2017, and February 26, 2018, 17 putative class actions were filed in federal district courts against Allergan alleging that the company unlawfully harmed competition by engaging in conduct to delay the market entry of generic versions of Restasis(R). Twelve of the complaints were filed on behalf of putative classes of end-payors, and five were filed on behalf of putative classes of direct purchasers. One direct purchaser complaint and two end-payor complaints were later voluntarily dismissed. The cases have all been consolidated in a multidistrict litigation in the federal court in the Eastern District of New York. The complaints challenge Allergan(R)s conduct in prosecuting and obtaining patents covering Restasis(R), listing those patents in the U.S. Food and Drug Administration's (FDA's) Orange Book, asserting those patents against potential generic competitors in patent-infringement litigation, filing citizens petitions with the FDA concerning generic companies' drug applications for generic Restasis(R), and transferring patents to the sovereign Native American Saint Regis Mohawk Tribe. Both the end-payors and the direct purchasers allege that these actions violated federal antitrust laws, and the end-payors further allege violations of state antitrust and consumer-protection laws and unjust enrichment. All plaintiffs seek damages, declaratory relief, and injunctive relief. Plaintiffs have filed a consolidated amended complaint which the Company has since moved to dismiss. On September 18, 2018, the court denied Allergan's motion to dismiss the complaint. Allergan plc, a pharmaceutical company, develops, manufactures, and commercializes branded pharmaceutical, device, biologic, surgical, and regenerative medicine products worldwide. It operates through US Specialized Therapeutics, US General Medicine, and International segments. Allergan plc was founded in 1983 and is headquartered in Dublin, Ireland. ALLERGAN PLC: Court Grants Bid to Dismiss ERISA Complaint --------------------------------------------------------- Allergan plc 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 a court has granted the Company's motion to dismiss the Employee Retirement Income Security Act (ERISA) complaint in its entirety in Generic Drug Pricing Securities and ERISA Litigation. On November 4, 2016, a class action was filed by a putative class of Allergan shareholders in federal court in California against the Company and certain of its current and former officers alleging that the Company and certain of its current and former officers made materially false and misleading statements. Additional similar class action complaints and one complaint by an individual defendant have been filed and these cases have been consolidated in the federal district court in New Jersey. The complaints allege generally that between February 2014 and November 2016, Allergan and certain of its officers made materially false and misleading statements regarding the Company's internal controls over its financial reporting and failed to disclose that its Actavis generics unit had engaged in illegal, anticompetitive price-fixing with its generic industry peers. The complaint seeks unspecified monetary damages. After the Company filed a motion to dismiss plaintiffs filed a second amended consolidated complaint on November 28, 2017. The Company's motion to dismiss the second amended complaint, filed on January 22, 2018, is still pending. A complaint was filed in California state court, premised on the same underlying allegations, by an individual opt-out plaintiff on February 2, 2018. Two complaints were filed, one in the federal district court in California and one in the federal district court in New Jersey, that are premised on the same alleged underlying conduct that is at issue in the securities litigation but that assert claims under the Employee Retirement Income Security Act of 1974 ("ERISA"). These complaints also have been consolidated in the district court in New Jersey. The ERISA complaints assert claims on behalf of a putative class of individuals who participated in the Company's retirement plans and seek an unspecified amount of damages and other injunctive relief. On October 23, 2017, the ERISA litigation Plaintiffs filed an amended consolidated complaint which the Company moved to dismiss on February 2, 2018. Only July 3, 2018, the court granted the Company's motion to dismiss the ERISA complaint in its entirety. Allergan plc, a pharmaceutical company, develops, manufactures, and commercializes branded pharmaceutical, device, biologic, surgical, and regenerative medicine products worldwide. It operates through US Specialized Therapeutics, US General Medicine, and International segments. Allergan plc was founded in 1983 and is headquartered in Dublin, Ireland. ALLERGAN PLC: Discovery Still Ongoing in Loestrin(R) 24 Litigation ------------------------------------------------------------------ Allergan plc 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 parties in Loestrin(R) 24 Litigation are currently engaged in discovery. On April 5, 2013, two putative class actions were filed on behalf of putative classes of end-payors in the federal district court against Warner Chilcott and certain affiliates alleging that Warner Chilcott's 2009 patent lawsuit settlements with Watson Laboratories and Lupin related to Loestrin(R) 24 Fe were unlawful. The complaints generally allege that Watson and Lupin improperly delayed launching generic versions of Loestrin(R) 24 in exchange for substantial payments from Warner Chilcott in violation of federal and state antitrust and consumer protection laws. The complaints each seek declaratory and injunctive relief and damages. Additional complaints making the same types of allegations have been filed by different plaintiffs, including a class of direct payors and by direct purchasers in their individual capacities. All the cases have been consolidated in the federal court for the District of Rhode Island. The parties are currently engaged in discovery. No further updates were provided in the Company's SEC report. Allergan plc, a pharmaceutical company, develops, manufactures, and commercializes branded pharmaceutical, device, biologic, surgical, and regenerative medicine products worldwide. It operates through US Specialized Therapeutics, US General Medicine, and International segments. Allergan plc was founded in 1983 and is headquartered in Dublin, Ireland. ALLERGAN PLC: Still Defends Namenda(R) Litigation ------------------------------------------------- Allergan plc 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 itself from the Namenda(R) Litigation. In September 2014, the State of New York, through the Office of the Attorney General of the State of New York, filed a lawsuit in the United States District Court for the Southern District of New York alleging that Forest was acting to prevent or delay generic competition to Forest's immediate-release product Namenda(R) in violation of federal and New York antitrust laws and committed other fraudulent acts in connection with its commercial plans for Namenda(R) XR. The district court granted the state's motion for a preliminary injunction which was later affirmed by the Court of Appeals for the Second Circuit. Forest and the New York Attorney General reached a settlement on November 24, 2015. On May 29, 2015, a putative class action was filed on behalf of a class of direct purchasers in the federal district court in New York. Since that time, additional complaints have been filed on behalf of putative classes of direct and indirect purchasers. The class action complaints make claims similar to those asserted by the New York Attorney General and also include claims that Namenda(R) patent litigation settlements between Forest and generic companies also violated the antitrust laws. Plaintiffs moved for summary judgment on two of the counts of their complaint. The Court granted plaintiffs' motion in part as to the collateral estoppel effect of a prior finding of anti-competitive conduct and denied the motions on whether the Company's obtaining pediatric exclusivity was anti-competitive conduct. On August 2, 2018, the court denied the Company's motion for summary judgment. No further updates were provided in the Company's SEC report. Allergan plc, a pharmaceutical company, develops, manufactures, and commercializes branded pharmaceutical, device, biologic, surgical, and regenerative medicine products worldwide. It operates through US Specialized Therapeutics, US General Medicine, and International segments. Allergan plc was founded in 1983 and is headquartered in Dublin, Ireland. AMERICAN AIRLINES: Settles Travelers' Class Action -------------------------------------------------- ABC5 Eyewitness reports that if you have flown a major airline in the past seven years, you could be cashing in as part of a lawsuit. The class action lawsuit was filed against American, Delta, Southwest and United, where passengers allege the airlines improperly worked together to limit the number of seats available on domestic flights to drive up ticket prices. "I'm not surprised," said Blaine resident Sally Anderson ,who was leaving from Minneapolis-St. Paul International Airport on Nov. 5. "The airlines are not doing stuff for us to make it more convenient or more comfortable. They're doing it for the money." Emails are popping up in passengers' inboxes telling them a settlement agreement might possibly mean they will get some money back. A notice of the class action suit is also spreading through social media outlets. But even with millions being offered in settlement, the millions of flyers in the last seven years make a big payday very unlikely. "It's important to remember there are millions and millions of people who've flown American Airlines, who have flown Southwest Airlines" said Charles Moore -- moore@halunenlaw.com -- a class action attorney with Halunen Law in Minneapolis. So far, reports say American and Southwest have agreed to pay a total of $60 million in the settlement, while denying they did anything wrong. Southwest will pay $15 million. American has agreed to pay $45 million. The lawsuits are continuing against Delta and United. People who purchased flights within the United States from American, Delta, Southwest, United, Continental or US Airways at any time between July 1, 2011 and Dec. 20, 2017 for the Southwest settlement; and between July 1, 2011 and June 14, 2018 for the American settlement could be eligible. "And what one individual may recover, it might be somewhat small," Moore said. The website also said it's possible that ticket buyers will never get any money from the lawsuit. "After deductions for any attorneys' fees, litigation expenses, settlement administration expenses, and class representative incentive awards approved by the Court, the remaining amount will be distributed to charities, governmental entities or other beneficiaries approved by the Court," the website states. In order to get a possible payment, airline passengers will have to file a claim. However, claims are not being accepted yet. [GN] AMIGONE FUNERAL: Tonawanda Residents File Class Action Lawsuit -------------------------------------------------------------- Fadia Patterson, writing for Spectrum News Buffalo, reports that word about Amigone Funeral Home's crematory being back in business traveled fast. "You're stuck with staying indoors which I don't think is fair," said Robin Stein, who lives close to the business in Tonawanda. Even faster, according to Paul Siepierski, is the smell of death leaving the stacks and circulating in the air. "There are children living in this neighborhood and they this stuff coming into their lungs." Residents like Ron Iabuda have complained about the ghastly odor, difficulty breathing and eye irritation. Amigone had stopped operating its crematory in 2012, after neighbors complained of dust and ash. However, in 2014, the business was sold to a new owner, who set about improving and modifying its equipment. The company resumed offering cremation services this past summer. Now people who live close to the business are filing a class-action lawsuit against the funeral home, seeking to cease this practice again. "They're fighting for their community's health and their quality of life," said attorney Kevin Stockey, Esq. who represents the residents. He said the suit also will challenge New York's law that prevents grandfathered combinations of funeral homes and crematories from moving out of residential areas. "We think the permit that has been issued is unlawful in the sense that what was grandfathered is 778 bodies a year now we're up over 2,900," he said. "Their grandfather status, in our opinion, has been violated." A representative from Amigone said the company has no comment at this time. "We're getting rid of Tonawanda Coke and now we're not going to have someone come in here and turn this neighborhood into 1950s Lackawanna," Siepierski said. "We have a right to good air."[GN] ANTHEM INC: Appeals Filed in 9th Cir. after Settlement Approval --------------------------------------------------------------- Anthem, 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 a number of appeals have since been filed with the Ninth Circuit Court of Appeals by class-member objectors challenging the final approval of a litigation settlement granted by the U.S. District Court in August 2018. In February 2015, the company reported that it was the target of a sophisticated external cyber attack. The attackers gained unauthorized access to certain of the company's information technology systems and obtained personal information related to many individuals and employees, such as names, birth dates, healthcare identification/social security numbers, street addresses, email addresses, phone numbers and employment information, including income data. To date, there is no evidence that credit card or medical information, such as claims, test results or diagnostic codes, were targeted, accessed or obtained, although no assurance can be given that we will not identify additional information that was accessed or obtained. Upon discovery of the cyber attack, the company took immediate action to remediate the security vulnerability and retained a cybersecurity firm to evaluate its systems and identify solutions based on the evolving landscape. The company have provided credit monitoring and identity protection services to those who have been affected by this cyber attack. The company have continued to implement security enhancements since this incident. The company have incurred expenses subsequent to the cyber attack to investigate and remediate this matter and expect to continue to incur expenses of this nature in the foreseeable future. The company recognize these expenses in the periods in which they are incurred. Federal and state agencies, including state insurance regulators, state attorneys general, the Health and Human Services, or HHS, Office of Civil Rights and the Federal Bureau of Investigation, are investigating, or have investigated, events related to the cyber attack, including how it occurred, its consequences and our responses. In connection with the resolution of the National Association of Insurance Commissioners' multistate targeted market conduct and financial exam in December 2016, the company agreed to provide a customized credit protection program, equivalent to a credit freeze, for its members who were under the age of eighteen on January 27, 2015. No fines or penalties were imposed on the company. In October 2018, the company resolved the investigation by the HHS Office of Civil Rights. The resolution included a monetary settlement along with an agreement to a two-year Corrective Action Plan. Additionally, an ongoing investigation by a multi-state group of Attorneys General remains outstanding. Although the company is cooperating in these investigations, the company may be subject to additional fines or other obligations, which may have an adverse effect on how the company operates its business and an adverse effect on ouits results of operations and financial condition. Civil class actions were filed in various federal and state courts by current or former members and others seeking damages that they alleged arose from the cyber-attack. In June 2015, the Judicial Panel on Multidistrict Litigation entered an order transferring the consolidated civil actions to the U.S. District Court for the Northern District of California, or the U.S. District Court in a matter captioned In Re Anthem, Inc. Data Breach Litigation. The parties agreed to settle plaintiffs' claims on a class-wide basis for a total settlement payment of $115. In August 2017, the U.S. District Court issued an order of preliminary approval of the settlement. The U.S. District Court held hearings on plaintiffs' motion for final approval and class counsel's fee petition in February and June 2018 and appointed a special master to review class counsel's fee petition. Final approval of the settlement was granted by the U.S. District Court in August 2018. A number of appeals have since been filed with the Ninth Circuit Court of Appeals by class-member objections challenging that approval, several of which have been resolved. The three state court cases related to the cyber attack that were proceeding outside of this multidistrict litigation have been resolved and dismissed with prejudice. Anthem said, "We have contingency plans and insurance coverage for certain expenses and potential liabilities of this nature and will pursue coverage for all applicable losses; however, the ultimate outcome of our pursuit of insurance coverage cannot be presently determined. We intend to vigorously defend the remaining regulatory actions related to the cyber attack; however, their ultimate outcome cannot be presently determined." Anthem, Inc., through its subsidiaries, operates as a health benefits company in the United States. It operates through three segments: Commercial & Specialty Business, Government Business, and Other. Anthem, Inc. was founded in 1944 and is headquartered in Indianapolis, Indiana. ANTHEM INC: Still Defends Express Scripts/Anthem ERISA Litigation ----------------------------------------------------------------- Anthem, 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, In Re Express Scripts/Anthem ERISA Litigation. The company is a defendant in a class action lawsuit that was initially filed in June 2016 against Anthem, Inc. and Express Scripts, which has been consolidated into a single multi-district lawsuit captioned In Re Express Scripts/Anthem ERISA Litigation, in the U.S. District Court for the Southern District of New York. The consolidated complaint was filed by plaintiffs against Express Scripts and the company on behalf of all persons who are participants in or beneficiaries of any ERISA or non-ERISA healthcare plan from December 1, 2009 to the present in which the company provided prescription drug benefits through the PBM Agreement with Express Scripts and paid a percentage based co-insurance payment in the course of using that prescription drug benefit. The plaintiffs allege that the company breached its duties, either under ERISA or with respect to the implied covenant of good faith and fair dealing implied in the health plans, (i) by failing to adequately monitor Express Scripts' pricing under the PBM Agreement and (ii) by placing the company's own pecuniary interest above the best interests of the company's insureds by allegedly agreeing to higher pricing in the PBM Agreement in exchange for the purchase price for our NextRx PBM business, and (iii) with respect to the non-ERISA members, by negotiating and entering into the PBM Agreement with Express Scripts that was allegedly detrimental to the interests of such non-ERISA members. Plaintiffs seek to hold the company and Express Scripts jointly and severally liable and to recover all losses suffered by the proposed class, equitable relief, disgorgement of alleged ill-gotten gains, injunctive relief, attorney's fees and costs and interest. In April 2017, the company filed a motion to dismiss the claims brought against it, and it was granted, without prejudice, in January 2018. Plaintiffs filed a notice of appeal with the United States Court of Appeals for the Second Circuit, which was heard in October 2018. Anthem said, "We intend to vigorously defend this suit; however, its ultimate outcome cannot be presently determined." Anthem, Inc., through its subsidiaries, operates as a health benefits company in the United States. It operates through three segments: Commercial & Specialty Business, Government Business, and Other. Anthem, Inc. was founded in 1944 and is headquartered in Indianapolis, Indiana. ASPIRE MARKETING: Rivera Sues over Unsolicited Text Messages ------------------------------------------------------------ MISMA RIVERA, individually and on behalf of all others similarly situated, the Plaintiff, vs. ASPIRE MARKETING ENTERPRISES, LLC, the Defendant, Case 0:18-cv-62603-WPD (S.D. Fa., Oct. 29, 2018), seeks injunctive relief to halt Defendant's illegal conduct, and statutory damages on behalf of herself and members of the class, and any other available legal or equitable remedies resulting from the illegal actions of Defendant under the Telephone Consumer Protection Act. According to the complaint, the Defendant owns and operates a medical practice that specializes in cosmetic surgery and procedures. In efforts to inject a new stream of revenue into its business, Defendant would often send marketing text messages providing various types of promotional offers and savings for future purchases of nutritional supplements to consumers without first obtaining express written consent to send such marketing text messages as required to do so under the TCPA. These messages were sent using mass-automated technology through a third-party company hired by Defendant to send marketing text messages on its behalf en masse. In sum, Defendant knowingly and willfully violated the TCPA, causing injuries to Plaintiff and members of the putative class, including invasion of their privacy, aggravation, annoyance, intrusion on seclusion, trespass, and conversion, the lawsuit says.[BN] Attorneys for Plaintiff: Jibrael S. Hindi, Esq. THE LAW OFFICE OF JIBRAEL S. HINDI , PLLC. 110 SE 6th Street Ft. Lauderdale, FL 33301 Telephone: (954) 907-1136 Facsimile: (855) 529-9540 E-mail: jibrael@jibraellaw.com ATLANTIC CREDIT: Vedernikov Sues over Debt Collection Practices --------------------------------------------------------------- IGOR VEDERNIKOV, individually and on behalf of all other similarly situated, Plaintiff v. ATLANTIC CREDIT & FINANCE INC.; MIDLAND FUNDING LLC; and JOHN DOES 1-25, Defendants, Case No. 3:18-cv-15273-MAS-TJB (D.N.J., Oct. 24, 2018) seeks to stop the Defendant's unfair and unconscionable means to collect a debt. The case is assigned to Judge Michael A. Shipp and referred to Magistrate Judge Tonianne J. Bongiovanni. Atlantic Credit & Finance, Inc. purchases and manages unsecured and consumer-distressed assets. Atlantic Credit & Finance, Inc. was founded in 1996 and is headquartered in Roanoke, Virginia with branch offices in Roanoke and Richmond, Virginia; and Phoenix, Arizona. As of August 6, 2014, Atlantic Credit & Finance, Inc. operates as a subsidiary of Encore Capital Group, Inc. [BN] The Plaintiff is represented by: Yaakov Saks, Esq. Stein Saks, PLLC 285 Passaic Street Hackensack, NJ 07601 Telephone: (201) 282-6500 Facsimile: (201) 282-6501 E-mail: ysaks@steinsakslegal.com ATRIUM HOSPITALITY: Fails to Pay Proper Wages, Hurtado Suit Says ---------------------------------------------------------------- RAMIRO HURTADO, individually and on behalf of all others similarly situated, Plaintiff v. ATRIUM HOSPITALITY, L.P.; and DOES 1 to 100, Defendants, Case No. 18STCV02036 (Cal. Super., Los Angeles Cty., Oct. 23, 2018) is an action against the Defendants for failure to pay minimum wages, overtime compensation, authorize and permit rest periods, provide accurate wage statements and pay sick days. The Plaintiff Hurtado was employed by the Defendants as exempt employee. Atrium Hospitality LP owns and operates hotels in the United States. The company was founded in 2015 and is based in Alpharetta, Georgia. [BN] The Plaintiff is represented by: Preston H. Urn, Esq. LIM LAW GROUP, P.C. 3435 Wilshire Blvd., Suite 2350 Los Angeles, CA 90010 Telephone: (213) 900-3000 Facsimile: (213)204-3000 E-mail: phl@limlawgroup.com - and - Kyle Todd, Esq. Shelby Miner, Esq. LAW OFFICES OF KYLE TODD 1055 West Seventh Street, Suite 1920 Los Angeles, CA 90017 Telephone: (323) 208-9171 Facsimile: (323) 693-0822 E-mail: kyle@kylctodd.com shelby@kyletodd.com BANK OF AMERICA: Ct. Narrows Claims in 2nd Amended Antitrust Suit ----------------------------------------------------------------- The United States District Court for the Southern District of New York issued an Opinion and Order granting in part and denying in part the Plaintiffs' Proposed Second Consolidated Class Action Complaint pursuant to Federal Rule of Civil Procedure 15(a)(2) in the case captioned JAMES CONTANT, et al., the Plaintiffs, v. BANK OF AMERICA CORPORATION, et al., the Defendants. No. 17 Civ. 3139 (LGS). (S.D.N.Y.). The Plaintiffs move for leave to file their Proposed Second Consolidated Class Action Complaint (Proposed Complaint) pursuant to Federal Rule of Civil Procedure 15(a)(2). The Plaintiffs, a group of individuals and businesses that purchased foreign exchange (FX) instruments from retail foreign exchange dealers (Retail Dealers), filed this putative class action against 18 banks and their affiliates2 seeking injunctive relief under the Sherman Antitrust Act and damages under certain state antitrust and consumer protection laws. The Plaintiffs allege that they paid inflated prices for various financial instruments because of the Defendants' alleged conspiracy to fix prices in the FX spot market. The Proposed Complaint claims that the Defendants' price-fixing agreements violated Section 1 of the Sherman Antitrust Act; the state antitrust statutes of Arizona, California, Illinois, Minnesota, New York and North Carolina and the consumer protection statutes of California, Florida and Massachusetts. Sherman Act Claim The Proposed Complaint's Sherman Act claim once again fails for lack of Article III standing. The irreducible constitutional minimum of standing contains three elements. The plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision. The Plaintiffs assert three arguments why the Proposed Complaint pleads a sufficient threat of future harm; none are persuasive. First, the Plaintiffs point to recent developments in government investigations into the price fixing conspiracy. This argument fails, because the Government's uncovering of further details with respect to the the Defendants' past misconduct does not imply that the misconduct is continuing or likely to recur. Second, the Plaintiffs argue that allegations that the same market conditions that facilitated the Conspiracy continue today are sufficient, because if the Defendants continue to be able to manipulate FX prices, those the Plaintiffs will continue to be harmed. This argument assumes without reason that, despite being caught and punished for manipulating the market, the Defendants will continue to manipulate the market simply because they allegedly still can. Third, as evidence of an ongoing threat, the Plaintiffs point to a paragraph in the Proposed Complaint that alleges ongoing regulatory violations that included failing to segregate client funds, failing to report FX transactions, failure to report Credit Suisse's short positions, selling risky investment products to clients, and the charging of incorrect rates and commissions to FX clients. But this allegation does not describe an ongoing threat from the same FX-related misconduct that catalyzed the present lawsuit i.e., collusion amongst the Defendants to rig FX benchmarks. Because the Plaintiffs cannot obtain damages or injunctive relief under the Sherman Act, their alleged injury is not likely to be redressed by a favorable judicial decision and leave to amend is denied. State Law Claims - Proximate Cause Proximate cause is required for all of the Plaintiffs' state law claims, which are unchanged in the Proposed Complaint. Proximate cause under the rubric of directness is also n effect a requirement for antitrust standing for at least the California, Illinois and New York antitrust claims. A proximate cause determination does not require a jury to identify the liable party as the sole cause of harm, it only asks that the identified cause be a substantial factor in bringing about the injury. The harm alleged need have only a sufficiently close connection to the conduct the statute prohibits, proximate causation does not demand total causation. Accepting the Proposed Complaint's allegation that retail FX prices move in nearperfect correlation with FX benchmarks, because FX benchmarks constitute the predominant component of FX retail prices, a direct link connects the alleged anticompetitive conduct and the Plaintiffs' injury; any engineered increase in FX benchmark rates galvanized an equivalent increase in the price paid by retail consumers. The Defendants argue that the Proposed Complaint does not sufficiently plead proximate cause or directness because the Plaintiffs' purchases cannot be traced to the Defendants. Contrary to the Defendants' argument, these transactions are not impossible to identify because of the fungible nature of currency. By mirroring the "Direct Settlement Class" in FOREX, the putative class in this case does not include the Plaintiffs who purchased fungible currency notes from a Retail Dealer to use in buying goods and services. It includes only the Plaintiffs who purchased a traceable FX instrument from a Retail Dealer. The Proposed Complaint alleges that every FX instrument the Plaintiffs purchased from a Retail Dealer is traceable back to a Defendant liquidity provider, which is plausible given the recordkeeping requirements imposed on Retail Dealers by the Commodity Futures Trading Commission. Accordingly, the Proposed Complaint alleges that the Plaintiffs' losses were proximately caused by, and flowed directly from, the Defendants' misconduct. State Law Claims - Due Process Requirements The Proposed Complaint pleads consumer and antitrust claims under the law of 8 different states (New York, Arizona, California, Florida, Illinois, Massachusetts, Minnesota, North Carolina), in each case on behalf of one or more named the Plaintiffs who both reside in that state and purchased FX instruments in that state, and on behalf of a putative class of those who purchased an FX Instrument from a Defendant or co-conspirator in that state and/or while domiciled in that state. Under the Fourteenth Amendment Due Process Clause, a state law may not be applied unless that state has a significant contact or significant aggregation of contacts, creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair. The Proposed Complaint satisfies these due process requirements by alleging facts relevant to the first three factors. Factor (d) is inapplicable because, as alleged, the Plaintiffs did not transact with the Defendants and had no relationship with them. The Proposed Complaint alleges that at least one Plaintiff lives in each of the states in question, and that Plaintiff purchased an FX instrument while physically located in their respective states of residence. The Plaintiffs were therefore injured in their home states. The Proposed Complaint alleges that the the Defendants each maintain a significant corporate presence in each of the states. Accordingly, application of the laws of each Plaintiff's home state to that Plaintiff's claims comports with due process. State-Specific Arguments The Defendants raise arguments specific to the antitrust laws of six of the states. For the reasons below, leave to replead the Florida and Illinois claims is denied with respect to Bank of America, N.A., HSBC Bank USA, N.A. and JPMorgan Chase Bank, N.A. Leave to amend is otherwise granted. Arizona The Proposed Complaint asserts a claim under Arizona's Uniform State Antitrust Act (AUSAA), on behalf of an Arizona resident and an Arizona putative class. The Defendants argue that the Proposed Complaint fails to state a claim under the AUSAA, because the Plaintiffs did not serve Arizona's Attorney General with a copy of the CCAC contemporaneously with its filing, as required by the statute. Even those courts that have held that service requirements are substantive, and hence enforceable in federal court, have dismissed without prejudice to renewal after proper service. The Plaintiffs have already served the Arizona Attorney General the CCAC, which in any event was dismissed, and presumably they will timely serve the new complaint filed pursuant to this Opinion. No reason exists to deny leave to file an amended complaint that includes the AUSAA claim. California The Proposed Complaint asserts two claims for violation of the Cartwright Act and California's Unfair Competition Law (UCL), respectively, on behalf of the California the Plaintiffs and a California putative class. The Defendants argue that the Proposed Complaint is deficient as to these claims because it pleads no specific intrastate conduct within California. This argument fails because it misstates the law. To state a valid Cartwright Act or UCL claim, a plaintiff must allege either (1) that the antitrust misconduct occurred within California or (2) that the plaintiff suffered antitrust injury in California. Here, the Proposed Complaint alleges that the California the Plaintiffs were injured in California when they purchased overpriced FX instruments while in California. Accordingly, the Proposed Complaint's California claims are adequately pleaded. Florida The Proposed Complaint pleads a cause of action under the Florida Deceptive and Unfair Trade Practices Act (FDUTPA), on behalf of the Florida residents in the purported class. The Defendants argue that the Proposed Complaint fails to state a claim under the FDUTPA because (1) the Plaintiffs are not consumers within the meaning of the statute and (2) the FDUTPA does not apply to federally regulated banks. Neither argument merits denial of leave to amend. Consumers The Defendants argue that, for purposes of FDUTPA, consumers are those who purchased goods and services for personal, family or household use. This argument misstates the law. FDUTPA defines the terms consumer and trade or commerce as: "Consumer means an individual; child, by and through its parent or legal guardian; business; firm; association; joint venture; partnership; estate; trust; business trust; syndicate; fiduciary; corporation; any commercial entity, however denominated; or any other group or combination.Trade or commerce means the advertising, soliciting, providing, offering, or distributing, whether by sale, rental, or otherwise, of any good or service, or any property, whether tangible or intangible, or any other article, commodity, or thing of value, wherever situated. Trade or commerce shall include the conduct of any trade or commerce, however denominated, including any nonprofit or not-for-profit person or activity." Given these broad definitions, Florida courts have clarified that the FDUTPA is not limited to contracts for personal, family or household purposes as defined in the Uniform Commercial Code. The Plaintiffs' purchase of FX instruments falls within these definitions because the Plaintiffs are individuals, businesses or associations; and the Plaintiffs purchased FX instruments, which are, at minimum, a thing of value. Banking Exception The Plaintiffs argue that this statutory exception to FDUTPA only applies where the specific activities at issue were subject to federal banking laws. The Parties dispute which the Defendants are banks within the meaning of the exemption. The Defendants fall into three categories: (1) three the Defendants are federally chartered national associations (NAs); (2) twenty-four the Defendants are bank holding companies (BHCs) or their subsidiaries and (3) twenty-four the Defendants are foreign banks, foreign banking organizations or subsidiaries thereof (the Foreign the Defendants). All of the NAs are banks within the meaning of the FDUTPA, and the Plaintiffs concede as much. But ambiguity exists with respect to what non-NA entities constitute banks for the purposes of the FDUTPA exemption. In light of this definition, and lacking any other, leave to amend is granted with respect to both the BHCs and the Foreign the Defendants. Accepting the facts pleaded in the Proposed Complaint, and drawing all inferences in the Plaintiffs' favor, it is plausible that the BHCs do not qualify as banks under this definition because a a substantial part of their business does not consist of receiving deposits and making loans and discounts or of exercising fiduciary powers similar to those permitted to national banks. Likewise, it is plausible to infer that some of the Foreign the Defendants will not qualify as banks because they do not operate in Florida pursuant to chapter 663. Determining which, if any, of the BHCs and Foreign the Defendants qualify as banks will require discovery and need to be resolved at a later stage. Leave to amend is therefore granted in substantial part with respect to the FDUTPA claim, except that the Proposed Complaint shall not include the NAs as the Defendants in the Florida cause of action. Illinois The Proposed Complaint asserts violations of the Illinois Antitrust Act (IAA), 740 Ill. Comp. Stat. 10/1, et seq., on behalf of the Illinois Plaintiff and an Illinois putative class. The Defendants argue that the Proposed Complaint fails to state a claim under the IAA because (1) the IAA does not allow for class actions and (2) the IAA does not apply to banks. Neither argument merits denial of leave to amend. Class Actions The IAA states, no person shall be authorized to maintain a class action in any court of this State for indirect purchasers asserting claims under this Act, with the sole exception of this State's Attorney General, who may maintain an action parens patriae as provided in this subsection. If, as the Defendants argue, this provision is substantive under the doctrine of Shady Grove, 599 U.S. at 397-406, then it must be applied in federal court. But if, as the Plaintiffs argue, the provision is procedural under the doctrine of Shady Grove, 599 U.S. at 397-406, then only the dictates of Rule 23 would apply. District courts have reached conflicting conclusions about whether indirect purchasers' class action claims raised under the IAA in federal court can proceed. For two reasons, the IAA allows for class actions in federal court. First, it is unnecessary to reach the Shady Grove question, because the statute, by its terms, does not apply in federal court; the statute states, no person shall be authorized to maintain a class action in any court of this Statefor indirect purchasers asserting claims under this Act. Second, even if it is necessary to reach the Shady Grove analysis, the statute is procedural, not substantive, and does not apply in federal court. In Shady Grove, the New York statute, which the Supreme Court held to be procedural, stated that an action to recover a penalty, or minimum measure of recovery created or imposed by statute may not be maintained as a class action. Banking Exemption The Defendants next argue that they are exempt under the IAA's banking exemption, which states, No provisions of this Act shall be construed to make illegal the activities of any state or national bank to the extent that such activities are regulated or supervised by officers of the state or federal government under the banking laws of this State or the United States. It appears that no court has ever applied the IAA banking exemption as the parties have not cited any case, nor has the Court found one. For purposes of interpreting the IAA's banking exemption, this Opinion uses the definition of national bank from the Illinois Banking Act (IBA), 205 Ill. Comp. Stat. Ann. 5/2, which is specifically referenced in the IAA exemption, i.e., the banking laws of this State. Under the IBA, National bank' means a national banking association without regard to its location. State bank' means any banking corporation that has a banking charter issued by the Banking Commissioner of Illinois under this Act. This reading of the IAA comports with the Illinois Bar Committee's 1967 comments to the IAA exemptions, which state. It is assumed that all of the provisions of Section 5 will be strictly construed and narrowly applied. Furthermore, unlike the FDUTPA, which exempts banks, the IAA exempts any state or national bank. The modifiers state or national are presumed to carry significance and limit the definition of bank. Leave to amend is denied with respect to the NAs, which clearly are within the definition of national bank, but granted with respect to the BHCs and the Foreign the Defendants. Massachusetts The Plaintiffs assert a claim under Chapter 9 of the Massachusetts Consumer Protection Act (MCPA), on behalf of the Massachusetts Plaintiff and a putative Massachusetts class. The Defendants argue that the Plaintiffs are not consumers entitled to bring a claim under Chapter 9 of the MCPA, because trading in foreign currency instruments is not a consumer-oriented activity. This argument fails for two reasons. The definitions chapter of MCPA states in broad terms: Trade and commerce shall include the advertising, the offering for sale, rent or lease, the sale, rent, lease or distribution of any services and any property, tangible or intangible, real, personal or mixed, any security and any contract of sale of a commodity for future delivery, and any other article, commodity, or thing of value wherever situate, and shall include any trade or commerce directly or indirectly affecting the people of this commonwealth. Accordingly, the purchase of FX instruments is not automatically outside of Chapter 9 of the MCPA simply because it is an investment. If the Plaintiffs purchased investment instruments for their personal portfolios, then FX instruments are, at minimum, a thing of value within the ambit of Chapter 9. Second, the Plaintiffs here are not billion dollar hedge funds that trade directly with liquidity providers on the FX spot market. They are individuals who purchased FX instruments from a Retail Dealer. The Plaintiffs use FX instruments for a variety of purposes, including long and short-term investing, portfolio diversification, and to hedge their foreign investments against risks of foreign currency fluctuations. This small-scale purchasing of FX instruments in the retail market qualifies as a consumer activity. North Carolina The Proposed Complaint asserts a claim under the North Carolina Unfair Trade Practice Act (NCUTPA), on behalf of the North Carolina Plaintiff and a putative North Carolina Class. The Defendants seek dismissal of the NCUTPA claim on the grounds that (1) application of the NCUTPA is precluded by the statute's regulatory scheme exception and (2) the Proposed Complaint does not plead a sufficient effect on North Carolina in state business. Both arguments fail. In State Effects The Defendants also argue that the proposed NCUTPA claim does not plead an adequate effect on in state business. This argument fails because the Proposed Complaint alleges that the the Plaintiffs, who are North Carolina residents, were injured in North Carolina when they purchased FX instruments at inflated prices while located in North Carolina.12 This in state injury is sufficient to state a claim under the NCUTPA. Both of the cases cited by the Defendants illustrate that an injury that occurs in North Carolina is sufficient to sustain a NCUTPA claim. Leave to amend the NCUTPA claim is granted. Accordingly, the Plaintiffs' motion to amend is denied with respect to the Sherman Act claim. The Plaintiffs' motion for leave to amend is granted with respect to all state law claims, except to the extent that the Proposed Complaint raises claims against the NAs under Florida and Illinois law. A full-text copy of the District Court's October 25, 2018 Opinion and Order is available at https://tinyurl.com/ybxjeuop from Leagle.com. James Contant, on behalf of themselves and all others similarly situated, Plaintiff, represented by Frank Burton Ulmer, McCulley Mccluer PLLC, Michael C. Dell'Angelo -- mdellangelo@bm.net -- Berger Montague PC, pro hac vice, R. Bryant McCulley, McCulley McCluer PLLC, Stuart Halkett McCluer, McCulley Mccluer PLLC & Joshua Ripley -- jripley@bm.net -- Berger Montague PC, pro hac vice. Martin-Han Tran, on behalf of themselves and all others similarly situated, Carlos Gonzalez, on behalf of themselves and all others similarly situated, Ugnius Matkus, on behalf of themselves and all others similarly situated, Jerry Jacobson, on behalf of themselves and all others similarly situated, Paul Vermillion, on behalf of themselves and all others similarly situated, Sandra Lavender, Victor Hernandez, FX Primus Ltd., Charles Hitchcock, III & Tina Porter, the Plaintiffs, represented by Michael C. Dell'Angelo, Berger Montague PC, pro hac vice, R. Bryant McCulley, McCulley McCluer PLLC, Stuart Halkett McCluer, McCulley Mccluer PLLC &Joshua Ripley, Berger Montague PC, pro hac vice. Bank Of America Corporation, Bank of America, N.A. & Merrill Lynch, Pierce, Fenner & Smith Inc., the Defendants, represented by Adam Selim Hakki -- ahakki@shearman.com -- Shearman & Sterling LLP, Jeffrey Jason Resetarits -- jeffrey.resetarits@shearman.com -- Shearman & Sterling LLP & Richard Franklin Schwed -- rschwed@shearman.com -Shearman & Sterling LLP. The Bank of Tokyo Mitsubishi UFJ Ltd., Defendant, represented by Kenneth Anthony Gallo - kgallo@paulweiss.com -- Paul, Weiss, Rifkind, Wharton & Garrison LLP, Michael E. Gertzman - mgertzman@paulweiss.com -- Paul Weiss, Anand Sithian -- asithian@paulweiss.com -- Paul Weiss & Maxwell Arlie Halpern Kosman -- mkosman@paulweiss.com -- Paul, Weiss, Rifkind, Wharton & Garrison. BARNSTORMERS BASKETBALL: Sued Over Ex-Coach's Sexual Exploitation ----------------------------------------------------------------- Stephen Gruber-Miller, writing for Des Moines Register, reports that a class-action lawsuit has been filed against a former Iowa youth basketball coach who admitted to secretly recording nude videos of hundreds of boys. Greg Stephen, a founder and former head coach of the Iowa Barnstormers youth basketball club, pleaded guilty on Oct. 18 to five counts of sexual exploitation of a child as well as transportation and possession of child pornography. Guy Cook, a Des Moines attorney, said he filed the class-action lawsuit on Nov. 2 in Johnson County District Court. The documents were not available in the state's online court system on Nov. 2, but a copy was provided to the Register. The plaintiff is identified only as John Doe, and includes "all others similarly situated." In addition to Stephen, John Doe is suing Barnstormers Basketball of Iowa and the Amateur Athletic Union of the United States. The lawsuit accuses Stephen of intrusion on his victims' seclusion and says the Barnstormers and AAU were negligent in their duty to protect the safety and privacy of their athletes and to implement procedures that would have stopped Stephen's behavior. Stephen was cut off from the Barnstormers program when news of an investigation became public in February. He was arrested in March. The class definition includes all Barnstormers players who have traveled with the team from 2005 to the present who stayed in rooms that were reserved by or accessible by Stephen, or who shared rooms with Stephen. John Doe played on several Barnstormers teams from March 2014 through July 2016 and attended a basketball tournament in Las Vegas in 2016. He stayed in a hotel room for seven nights with four or five other members of the team, where he says Stephen secretly recorded them, including when they were dressing and showering. Doe's father was told by the U.S. Attorney's office for the southern district of Iowa that Doe was one of Stephen's victims, the lawsuit states. Mr. Cook said in a statement that the case is about getting justice for hundreds of youth athletes who were victimized by Stephen's "despicable conduct." He was set hold a news conference at 10 a.m. Monday, Nov. 5, in Des Moines to discuss the lawsuit in more detail. According to the copy of the lawsuit provided to the Register, Stephen was responsible for booking hotel rooms for Barnstormers players when they traveled out of state for games and tournaments. He regularly arrived at the hotel rooms early, allowing him to place hidden cameras in the hotel room bathrooms, pointed towards the shower. He often shared a room and a bed with Barnstormer student athletes, the suit alleges. None of those boys were aware they were being recorded, the suit states. Many of the details in the lawsuit cite information in Stephen's 19-page signed plea agreement in his criminal case. In that agreement, Stephen admitted to possessing a hard drive with more than 400 folders labeled with boys' names that contained nude images and videos of the boys' genitalia. Many of the videos show the boys masturbating. The victims include players from as recently as 2018, as well as players and friends of players going back several years and minors involved in other sports, according to the plea agreement. Other videos show Stephen touching the genitals of his unconscious victims, the lawsuit states. In one August 2017 case, Stephen admitted to giving an 11- or 12-year-old boy medication to make him drowsy, then recording himself touching the boy's penis with his hand while his mouth was on or near the boy's penis. Stephen admitted to using the identities of three teenage girls to send nude and clothed photos and videos to boys over social media sites like Snapchat and Facebook and encourage the boys to send explicit images in return. Stephen will be sentenced on his criminal charges at a later date, but he faces a minimum of 15 years in federal prison and a maximum of 180 years in prison if Judge C.J. Williams chooses to run the sentences for each crime consecutively. On Oct. 31, U.S. District Judge C.J. Williams denied a motion from Stephen to reconsider an earlier decision allowing prosecutors to use evidence from a seized USB device in Stephen's criminal case. Stephen's guilty plea was conditional on his ability to appeal the use of the evidence from the device, which his former brother-in-law, Vaughn Ellison, discovered in a bathroom when he was remodeling Stephen's Monticello home and later gave to police. His lawyers have argued police violated his rights by holding the device for two days before getting a warrant and that Ellison was acting as a government agent when he took the device. [GN] BASF CORP: Tri-Iso Tryline Suit Moved to W.D. Pennsylvania ---------------------------------------------------------- The class action lawsuit titled TRI-ISO TRYLINE, LLC, individually and on behalf of all others similarly situated, Plaintiff v. BASF CORP.; BASF SE.; BAYER AG; BAYER CORP.; COVESTRO AG; COVESTRO LLC; DOWDUPONT INC.; DOW CHEMICAL CO.; HUNTSMAN CORP.; HUNTSMAN INTERNATIONAL LLC.; MCNS POLYURETHANES USA INC.; MITSUI CHEMICALS, INC.; MITSUI CHEMICALS AMERICA, INC.; MITSUI CHEMICALS & SKC POLYURETHANES, INC.; WANHUA CHEMICAL GROUP CO., LTD.; WANHUA CHEMICAL (AMERICA) CO. LTD.; and WANHUA CHEMICAL US HOLDING, INC., Defendants,, Case No. 2:18-cv-14043, was removed from the U.S. District Court for the District of New Jersey, to the U.S. District Court for the Western District of Pennsylvania on October 25, 2018. The Western District of Pennsylvania Court Clerk assigned Case No. 2:18-cv-01417 to the proceeding. The Case is assigned to the Hon. Donetta W. Ambrose and referred to Judge Lisa Pupo Lenihan. BASF Corporation manufactures and supplies basic chemicals and intermediates ranging from solvents, plasticizers, and monomers to glues and electronic chemicals, as well as raw materials for detergents, plastics, textile fibers, paints and coatings, plant protection, and pharmaceuticals. The company was founded in 1865 and is headquartered in Florham Park, New Jersey. BASF Corporation operates as a subsidiary of BASF SE. [BN] The Plaintiff is represented by: Steven N. Williams JOSEPH SAVERI LAW FIRM, INC. 601 California Street, Suite 1000 San Francisco, CA 94108 Telephone: (415) 500-6800 Facsimile: (415) 395-9940 E-mail: swilliams@saverilawfirm.com BAU OF ILLINOIS: Underpays Kitchen Staff, Rodriquez Alleges ----------------------------------------------------------- YUNIOR RODRIGUEZ, individually and on behalf of all others similarly situated, Plaintiff v. BAU OF ILLINOIS, INC. d/b/a BLUEBERRY HILL BREAKFAST CAFE; O.T.M. RESTAURANT, INC. d/b/a BLUEBERRY HILL BREAKFAST CAFE; D.S.B. RESTAURANTS, INC. d/b/a BLUEBERRY HILL BREAKFAST CAFE; L.T.D. RESTAURANT, INC. d/b/a BLUEBERRY HILL BREAKFAST CAFE; K.O.W. RESTAURANTS, INC.; BLUEBERRY HILL BREAKFAST CAFE; M.I.H. RESTAURANT GROUP, INC. d/b/a BLUEBERRY HILL BREAKFAST CAFE; C.I.K. RESTAURANT, INC. d/b/a BLUEBERRY HILL BREAKFAST CAFE; D.I.R. RESTAURANT, INC. d/b/a BLUEBERRY HILL BREAKFAST CAFE; STEVENN ZERVAKIS; and GEORGE NIKOLOPOULOS, Defendants, Case No. 1:18-cv-07131 (N.D. Ill., Oct. 24, 2018) seeks to recover from the Defendant unpaid overtime compensation, prejudgment interest, maximum liquidated damages, reasonable attorneys' fees, and costs under the Fair Labor Standards Act. The Plaintiff Rodriquez was employed by the Defendants as kitchen staff. Bau of Illinois, Inc. d/b/a Blueberry Hill Breakfast Cafe is engaged in the restaurant business in Illinois. [BN] The Plaintiff is represented by: Carlos G. Becerra, Esq. BECERRA LAW GROUP, LLC 11 E. Adams St., Suite 1401 Chicago, IL 60603 Telephone: (312)957-9005 Facsimile: (888)826-5848 E-mail: cbecerra@law-rb.com BAY AREA: Montgomery Stayed Pending Kendrick/Kelly Appeal Ruling ---------------------------------------------------------------- Judge Richard Seeborg of the U.S. District Court for the Northern District of California, Oakland Division, stayed the case, WILLIAM MONTGOMERY, individually and on behalf of those similarly situated, Plaintiff, v. BAY AREA TOLL AUTHORITY; GOLDEN GATE BRIDGE, HIGHWAY AND TRANSPORTATION DISTRICT; XEROX STATE AND LOCAL SOLUTIONS, INC.; and DOES 1-100, Defendants, Case No. 3:18-cv-05518-RS (N.D. Cal.), pending final resolution of the Ninth Circuit Appeal in the Kendrick/Kelly Action (including a stay of the Defendants' deadlines to respond to the Plaintiffs' Amended Complaint and Motion to Remand). The Plaintiff filed the matter on July 13, 2018 in San Francisco Superior Court and Conduent timely removed the matter to Federal Court on Sept. 7, 2018. Bay Area Toll Authority ("BATA") contends it was not properly served by the Plaintiff. The Plaintiff filed an Amended Complaint in the matter on Oct. 5, 2018. He filed a Motion to Remand Action To The San Francisco Superior Court on Oct. 8, 2018, and set the matter for hearing on Nov. 15, 2018. Sumatra Kendrick and Michelle Kelly filed a putative class action on Nov. 21, 2017 in San Francisco County Superior Court against the same Defendants. Both Kendrick/Kelly and the Plaintiff assert a claim under California Street & Highway Code Section 31490. The Kendrick/Kelly Action was also removed to the Northern District of California by Conduent, and was assigned federal case number 3:18-cv-00213-RS. Kendrick/Kelly and the Plaintiff are represented by the same attorneys. Kendrick/Kelly filed a motion to remand the case to San Francisco Superior Court, which was granted by Hon. Richard Seeborg on April 3, 2018. Conduent State and Local Solutions, Inc. filed a Petition to the Ninth Circuit to hear an appeal on the order granting Kendrick/Kelly's motion to remand to the Ninth Circuit Court of Appeals, which was assigned appellate case number 18-80047. The Ninth Circuit Petition remains pending and the Ninth Circuit has not decided whether it will allow an appeal to be heard. The Parties stipulated and Judge Seeborg granted that the counsel for BATA accepted service of the Amended Complaint on BATA's behalf as of the date the Stipulation is filed with the Court. For purposes of judicial economy and to preserve the Parties' resources, the action is stayed pending final resolution of the Ninth Circuit Appeal in the Kendrick/Kelly Action (including a stay of the Defendants' deadlines to respond to the Plaintiffs' Amended Complaint and Motion to Remand). Within 30 days of a final resolution of the Ninth Circuit Petition and/or decision by the Ninth Circuit Appeal, the Parties will file a joint brief in the Court to inform the Court of the final decision and explain how the decision should impact the case, if at all. The Parties' joint filing will also set forth the Defendants' deadline for responding to the Amended Complaint and a proposed briefing schedule for the Plaintiff's Motion to Remand. A full-text copy of the Court's Oct. 16, 2018 Order is available at https://is.gd/RLhCol from Leagle.com. William Montgomery, Plaintiff, represented by Helen I. Zeldes -- helen@coastlaw.com -- Coast Law Group LLC, Andrew J. Kubik, Coast Law Group LLP, Ben Travis -- ben@coastlaw.com -- Coast Law Group LLP & S. Clinton Woods, Audet & Partners, LLP. Bay Area Toll Authority, Defendant, represented by Samantha D. Wolff -- swolff@hansonbridgett.com -- Hanson Bridgett LLP. Golden Gate Bridge, Highway and Transportation District, Defendant, represented by Alexandra V. Atencio -- aatencio@hansonbridgett.com -- Hanson Bridgett LLP & Samantha D. Wolff, Hanson Bridgett LLP. Conduent State & Local Solutions, Inc., Defendant, represented by Barbara Louise Lyons -- blyons@lkclaw.com -- Lafayette and Kumagai LLP & Gary T. Lafayette -- glafayette@lkclaw.com -- Lafayette & Kumagai LLP. BAYER A.G.: Finishing Solutions Suit Moved to W.D. Pennsylvania --------------------------------------------------------------- The class action lawsuit titled FINISHING SOLUTIONS, LLC, individually and on behalf of all others similarly situated, Plaintiff v. BAYER A.G.; BAYER CORPORATION; COVESTRO LLC; BASF SE; BASF CORPORATION; DOW CHEMICAL COMPANY; HUNTSMAN INTERNATIONAL LLC; HUNTSMAN CORPORATION; WANHUA CHEMICAL GROUP CO., LTD.; WANHUA CHEMICAL AMERICA CO. LTD.; MITSUI CHEMICALS, INC.; MITSUI CHEMICALS AMERICA, INC.; MCNS; and MCNS POLYURETHANES USA INC., Defendants, Case No. 2:18-cv-01391-RDP (N.D. Ala., Aug. 29, 2018), was removed from the U.S. District Court for the Northern District of Alabama, to the U.S. District Court for the Western District of Pennsylvania on October 25, 2018. The District Court Clerk assigned Case No. 2:18-cv-01439 to the proceeding. The Case is assigned to the Hon. Donetta W. Ambrose and referred to Judge Lisa Pupo Lenihan. Bayer Aktiengesellschaft operates as a life science company worldwide. Bayer Aktiengesellschaft has a collaboration agreement with The University of Texas MD Anderson Cancer Center to develop cancer treatments, as well as Haplogen GmbH. The company was founded in 1863 and is headquartered in Leverkusen, Germany. [BN] The Plaintiff is represented by: Chris T. Hellums, Esq. Jonathan S. Mann, Esq. PITTMAN DUTTON & HELLUMS, P.C. 2001 Park Place North, Suite 1100 Birmingham, AL 35203 Telephone: (205) 322-8880 Facsimile: (205) 328-2711 E-mail: chrish@pittmandutton.com jonm@pittmandutton.com - and - James F. Barger, Jr., Esq. Ben Bucy, Esq. FROHSIN BARGER & WALTHALL 100 Main Street St. Simons Island, GA 31522 Telephone: (205) 933-4006 Facsimile: (205) 933-4008 E-mail: jim@frohsinbarger.com ben@frohsinbarger.com - and - J. Elliott Walthall, Esq. FROHSIN BARGER & WALTHALL 402 Office Park Drive, Suite. 270 Birmingham, AL 35223 Telephone: (205) 933-4006 Facsimile: (205) 933-4008 E-mail: elliott@frohsinbarger.com BHP BILLITON: Faces Class Action Over Samarco Disaster ------------------------------------------------------ Press Association reports that mining giant BHP Billiton is facing a multibillion-pound lawsuit over the Samarco dam catastrophe in Brazil in one of the largest claims in British legal history. The class action, which is being handled by SPG Law, counts more than 240,000 claimants including several Brazilian municipalities, the Roman Catholic Archdiocese of Mariana and members of the Krenak indigenous community. SPG said that it is filing the suit at the High Court in Liverpool because FTSE 100 listed BHP is a UK registered company. The case is being brought for damages both on behalf of individuals, communities, foundations and indigenous peoples collectively, SPG said on Nov. 5. SPG Law partner Tom Goodhead said: "Three years on from the tragedy, nearly a million Brazilian citizens affected by the disaster have either not been compensated at all or have received low financial settlements. "In essence they have been ignored and forgotten. The process of compensation has so far been in the hands of the defendants. This is about putting the claimants in control." In 2015, BHP's Samarco iron-ore mine in the Minas Gerais state in south eastern Brazil saw a dam collapse, killing 19 people and displacing 700. A torrent of mud unleashed by the burst also wiped out a small village, Bento Rodrigues, and contaminated the Atlantic Ocean. The deadly stain of red mud, water and debris flowed downstream into the Doce River, where it devastated wildlife and compromised the drinking water source for hundreds of thousands of people. The stain flowed through the neighbouring Espirito Santo state, before it reached the Atlantic. BHP has already paid out millions to bankroll compensation and remediation programmes. It is also facing legal action in Australia on behalf of shareholders. SPG Law's US partner Glenn Phillips added: "BHP Billiton PLC are liable for the massive damage caused by the Bento Rodrigues dam disaster because Brazil's laws provide both for strict liability for environmental torts and for parent companies to be liable for the acts and omissions of their subsidiaries".[GN] BIRD RIDES: Faces Class-Action Lawsuit Over Gross Negligence ------------------------------------------------------------ Peter Holley, writing for The Washington Post, reports that the nation's electronic-scooter companies are facing more blowback as concerns rise about the safety of these devices -- this time in the form of a class-action lawsuit filed on October 19 in California. The lawsuit, filed in Los Angeles County Superior Court, accuses two of the largest e-scooter companies, Lime and Bird, as well as other e-scooter firms, of "gross negligence" and "aiding and abetting assault." The lawsuit, filed on behalf of eight initial plaintiffs, says the companies' practices have contributed to injuries in multiple ways. By "dumping" scooters on public streets without an appropriate warning, the suit alleges e-scooter companies acted negligently and should have known that their devices would become a dangerous "public nuisance." Three plaintiffs claim they were walking when e-scooter riders crashed into them from behind, resulting in severe injuries. The suit alleges that e-scooter companies knew their riders were injuring pedestrians and -- by failing to stop the collisions from occurring -- assisted and encouraged scooter riders as they committed "assaults." The suit also states that both companies' scooters contain defective electronics and mechanical parts, as well inadequate safety instructions for riders and that they have "a wanton disregard for the safety of others." The risks posed by the devices, the suit states, "were known and/or knowable" based on "professional knowledge" known within the transportation community. The suit makes numerous claims about scooters' mechanical issues, but does not provide concrete evidence for those claims. The suit also names scooter manufacturers Xiaomi United States and Segway as defendants. "While acting under the guise of the commendable goals of furthering personal freedom and mobility and protecting the environment, the Defendants, and each of them, are endangering the health, safety and welfare of riders, pedestrians and the general public," the suit states. The suit adds that "scores (if not hundreds) of riders and pedestrians and members of the public have suffered, are continuing to suffer and will to continue to suffer egregious and avoidable injuries and damage to their person and property." Spokespersons for Segway and Xiaomi United States did not respond to a request for comment. A Lime spokesperson said the company is in the process of reviewing the complaint. "While we don't comment on pending litigation, safety has always been at the very core of everything we do at Lime -- as is our mission of reducing cars from city streets and making them safer and greener for pedestrians, bike and scooter riders alike," the spokesperson said, adding that the company "prides itself on taking proactive steps relating safety wherever we have a presence." In a statement released by Bird, the company pointed out that the complaint has been brought "against the entire e-scooter industry" and said shared e-scooters have become an important transportation mode "for hundreds of thousands of people in 100 cities worldwide." "We believe that the climate crisis and our car dependency demand a transportation mode shift, and clean energy vehicles like e-scooters are already replacing millions of short car trips," the statement said. "There is no evidence that riding an e-scooter presents a greater level of danger to riders than riding a bike. Cars remain the greatest threat to commuters, killing over 40,000 people in the US yearly." Since their sudden arrival in recent months, e-scooters have been linked to an uptick in severe injuries in hospitals around the country, according to emergency-room physicians. As the value and popularity of companies such as Bird and Lime have soared, a growing number of critics -- including doctors, former riders and scooter mechanics -- claim that e-scooter fleets are poorly maintained and prone to dangerous mechanical failures. Two e-scooter riders -- one in Dallas and another in the District -- have been involved in accidents that led to their deaths, authorities say. The class-action suit adds a new category of people to the list of those fiercely opposed to the latest form of controversial transportation sweeping the country: pedestrians. Among the plaintiffs is David Petersen, a 62-year-old street performer known as "Davy Rocks," who alleges that he was severely injured after being struck by an e-scooter rider in June. Dancing for onlookers near the Santa Monica pier in California, Petersen, clad in his trademark "gladiator outfit," told The Washington Post that he was hit from behind by a man on a Bird scooter; the man fled the scene. Petersen said the force of the collision knocked him down, but he managed to lessen the impact by catching himself with his right hand. Had he been an elderly person or a small child, he said, he could've been killed. Petersen said he suffered a fractured arm and a severed biceps, an injury that caused him to miss weeks of work. The muscle had to be surgically reattached using a cadaver graft, he said. "My arm is never going to be the same, not to mention the five-inch-long scar it's got now," he said, noting that his arm has lost rotation and feels stiff. "If Bird is going to profit off the human meat grinder they've created in Santa Monica, they should be held responsible for the suffering they've caused." Additionally, the lawsuit accuses Bird and Lime of multiple breaches of each company's warranty and alleges that their vehicles were "not suitable" for repeated use in public places. Stating that the deployment of e-scooters is unlawful, the suit claims that each company should be prohibited from continuing to deploy scooters in California. Beyond seeking damages, the suit claims that scooter companies should be required to include "adequate warnings and/or instructions" to their apps and vehicles. Catherine Lerer, Esq. -- clerer@mcgeelerer.com -- a personal-injury lawyer from Santa Monica who is representing the plaintiffs with lawyer Jeffrey Lee Costell, Esq. -- jlcostell@costell-law.com -- said she has received more than 100 calls from people injured by scooters in recent months. Whether they involve riders or pedestrians, she said, the injuries are consistent: broken noses, legs, arms, wrists, hands and ribs, as well as head injuries and tears to anterior cruciate ligaments and rotator cuffs that require surgery. "We filed this class-action lawsuit against Bird and Lime and the manufacturers of their electric scooters to address the terrible injuries they have inflicted on their riders and pedestrians, and the continuing harm they are causing," Lerer said.[GN] BIRNER DENTAL: David Pill Balks at Merger Deal with Mid-Atlantic ---------------------------------------------------------------- DAVID PILL, Individually and on Behalf of All Others Similarly Situated, the Plaintiff, vs. BIRNER DENTAL MANAGEMENT SERVICES, INC., FREDERIC W.J. BIRNER, JOSHUA S. HOROWITZ, BURTON J. RUBIN, BRADLEY TIRPAK, GREGORY GALE FULTON, JOHN M. CLIMACO, and THOMAS D. WOLF, the Defendants, Case 1:18-cv-02757 (D. Colo, Oct. 29, 2018), seeks to enjoin Defendants from taking any steps to consummate a proposed acquisition transaction or, in the event the proposed transaction is consummated, to recover damages resulting from Defendants' conduct. The proposed transaction was announced on October 3, 2018, pursuant to which Birner Dental Management Services, Inc. will be acquired by Mid-Atlantic Dental Service Holdings LLC through its wholly owned subsidiary, Bronco Acquisition, Inc. According to the complaint, on October 3, 2018, the Company's Board of Directors caused the Company to enter into an Agreement and Plan of Merger with Mid-Atlantic Dental and Bronco. Pursuant to the Merger Agreement, Mid-Atlantic Dental will acquire all of the outstanding shares of Birner for (i) $10.62 per share in cash, and (ii) one contractual Contingent Value Right per share of Birner common stock, which will entitle shareholders to an additional cash payment of up to $0.13 per share under certain circumstances following the closing of the Proposed Transaction, for a total enterprise value of approximately $38.4 million. Upon completion of the Merger, Birner will be integrated into Mid-Atlantic Dental as a wholly owned subsidiary of Mid-Atlantic Dental. On October 25 2018, Defendants filed a proxy statement on a Schedule 14A with the United States Securities and Exchange Commission. The Proxy omits certain material information with respect to the Proposed Transaction, which renders it false and misleading, in violation of Sections 14(a) and 20(a) of the Securities Exchange Act of 1934, 15 U.S.C. sections 78n(a), 78t(a), and SEC Rule 14a-9, 17 C.F.R. 140.14a-9 ("Rule 14a-9") promulgated thereunder, the lawsuit says.[BN] Counsel for Plaintiff: Jeffrey A. Berens, Esq. BERENS LAW LLC 2373 Central Park Boulevard, Suite 100 Denver, CO 80238 Telephone: (303) 861-1764 Facsimile: (303) 395-0393 E-mail: jeff@jberenslaw.com - and - Carl L. Stine, Esq. Fei-Lu Qian, Esq. WOLF POPPER LLP 845 Third Avenue New York, NY 10022 Telephone: (212) 759-4600 Facsimile: (212) 486-2093 E-mail: cstine@wolfpopper.com fqian@wolfpopper.com BLACKROCK: Employees Sue Over High Fees on 401(k)s -------------------------------------------------- Leslie Albrecht, writing for Market Watch, reports that employees at big fund companies say they're being charged excessive fees on their 401(k) plans and that the plans are loaded with expensive, underperforming funds, Barron's reported. Big firms including Fidelity, Blackrock, T. Rowe Price, and Invesco, are facing class-action lawsuits from their own workers accusing them of putting the firms' financial interests ahead of employees when it comes to their retirement investments. The suits allege that the firms are using their employees' 401(k) retirement plans as money makers for their own funds. They're falling short on picking out the best funds for the plans and not overseeing them properly, the suits charge. The firms say they're following regulatory rules. The funds are selected by committees with a fiduciary duty to do right by employees. "At financial institutions, it's a matter of pride that they put people like their chief economist, chief financial officer, and treasurer on the benefits committees that are making these decisions," David Tetrick, Esq. -- dtetrick@kslaw.com -- a partner at law firm King & Spalding, which specializes in 401(k) defense cases, told Barron's.[GN] BLUE CROSS: Sued for Denying Mental Health Services Claims ---------------------------------------------------------- Morgan Haefner, writing for Becker's Hospital Review, reports that Blue Cross Blue Shield of Massachusetts is facing a class-action lawsuit that claims the health insurer systematically denied hundreds of members' claims for mental health services. The complaint, filed Oct. 31 in the United States District Court for the District of Massachusetts, accused BCBSMA of violating the terms of its insurance policies and self-funded medical benefit plans by denying claims for inpatient intermediate mental health residential treatment. BCBSMA covers intermediate inpatient treatment for mental health and substance use disorders, which may include acute residential treatment, according to the lawsuit. However, the plaintiffs argue BCBSMA's "restrictive interpretation" of what an intermediate treatment is leads to the exclusion of sub-acute residential treatment that is medically necessary. The plaintiffs argue this reading violates contract terms as well as federal mental health parity laws and the Employee Retirement Income Security Act. The lawsuit projects 100 BCBSMA members have had residential treatment claims improperly denied and that thousands others could face similar denials in the future. Becker's requested comment from BCBSMA on the allegations. [GN] BLUE LINE: Attorney Responds to Bid to Dismiss Speed-Camera Suit ---------------------------------------------------------------- Samantha Phillips, writing for The Vindicator, reports that Marc Dann, Esq., argued in a court document Blue Line Solution's claim it doesn't issue citations to speeding drivers is invalid because court documents show BLS cashes checks from drivers and provides customer service regarding the citations. BLS is the Tennessee-based speed-camera company that operates the cameras for Girard and a handful of other municipalities in the Mahoning Valley. Dann's arguments, filed in Trumbull County Common Pleas Court, were in response to Blue Line's motion to dismiss a class-action suit filed against the company. The company claimed it should not be included in Dann's lawsuit, filed on behalf of six drivers, because "the city issued the citations, not BLS." The litigation against the city and Blue Line revolves around the contested speed limit on a portion of Interstate 80 between Dec. 7, 2017, and Jan. 8, 2018, after construction ended. The city enforced the temporary reduced speed limit, and Dann contends people who were driving at the normal speed limit were wrongfully issued citations. In Dann's response, he called Blue Line's dispute over which entity issued the citations "an evasive argument." Attached to the documents were excerpts from the website www.violationpayment.net, which allows drivers to pay their speeding citations. A section on the website states, "All transactions are processed by Blue Line Solutions, located in Athens, Tenn., on behalf of governmental agencies." Blue Line argued last month that Girard's logo and contact information were on the citations, not the company's information. But a check from a driver paying her citation had Blue Line's stamp on the back, and it was attached to the court documents. The Vindicator's calls to Blue Line and Robert Yallech, Esq. -- ryallech@reminger.com -- of Youngstown-based Reminger Co., who is serving as legal counsel for the company, were not returned on October 19. The documents also pointed out that Blue Line "generates, mails, collects and provides customer services relating to the citations on behalf of the city of Girard." "It is disingenuous for BLS to even attempt to argue or suggest that it was not involved in this revenue-generating scheme," Dann's response stated. In last month's motion to dismiss, BLS responded to a section of the lawsuit's complaint that claimed Girard and BLS formed a conspiracy to collect the tickets by saying BLS didn't collect the money. Dann maintained, however, "The city of Girard and BLS formed a conspiracy by combining the city of Girard's status as a governmental entity with BLS' technology and logistics to issue the improper citations." Girard filed its motion to dismiss the suit in August. Attorneys with the Cleveland-based firm Sutter O'Connell Co. working as legal counsel for the city argued Dann's claims had no legal basis. City Law Director Brian Kren said the Ohio Department of Transportation didn't take down the reduced-speed signs until a month after construction ended, so he believes the city enforcing the lower limit with speed cameras was legitimate.[GN] BOK FINANCIAL: Unit Defending Against Oklahoma Class Suit --------------------------------------------------------- BOK Financial Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 30, 2018, for the quarterly period ended September 30, 2018, that BOKF NA faces a putative class action suit in Oklahoma District Court for Tulsa County Oklahoma alleging that BOKF NA breached its Demand Deposit Agreements. On July 6, 2018, a plaintiff served a petition in a putative class action in the Oklahoma District Court for Tulsa County Oklahoma alleging BOKF NA breached its Demand Deposit Agreements by charging overdraft and not sufficient funds fees to deposit accounts on the day of the transaction triggering the fee and by the bank's debit hold process causing overdraft fees. Management is advised by counsel that a loss is not probable and that the loss, if any, cannot be reasonably estimated. BOK Financial Corporation operates as the financial holding company for BOKF, NA that provides various financial products and services in Oklahoma, Texas, New Mexico, Northwest Arkansas, Colorado, Arizona, and Kansas/Missouri. It operates through three segments: Commercial Banking, Consumer Banking, and Wealth Management. BOK Financial Corporation was founded in 1910 and is headquartered in Tulsa, Oklahoma. CALPERS: June 10 Trial Set for Insurance Plan Class Action ---------------------------------------------------------- Sacramento Bee reports that a class-action lawsuit that could cost CalPERS $1 billion is headed to trial in June, and many of the 122,000 retirees who bought an insurance plan at the center of the case are receiving small checks from an agreement that settled a portion of the claims. . . . Michael Bidart, the attorney representing CalPERS members who allege the pension fund carried out a contract-breaking rate hike on their long-term health care plans five years ago, anticipates that the trial will go forward as scheduled. [GN] CAMPING WORLD: Dec. 18 Lead Plaintiff Bid Deadline -------------------------------------------------- Kahn Swick & Foti, LLC ("KSF") and KSF partner, former Attorney General of Louisiana, Charles C. Foti, Jr., remind investors that they have until December 18, 2018 to file lead plaintiff applications in a securities class action lawsuit against Camping World Holdings, Inc. (NYSE: CWH), if they purchased the Company's Class A shares between March 8, 2017 and August 7, 2018, inclusive (the "Class Period"). This action is pending in the United States District Court for the Northern District of Illinois. What You May Do If you purchased Class A shares of Camping World and would like to discuss your legal rights and how this case might affect you and your right to recover for your economic loss, you may, without obligation or cost to you, contact KSF Managing Partner Lewis Kahn toll-free at 1-877-515-1850 or via email (lewis.kahn@ksfcounsel.com), or visit https://www.ksfcounsel.com/cases/nyse-cwh/ to learn more. If you wish to serve as a lead plaintiff in this class action, you must petition the Court by December 18, 2018. About the Lawsuit Camping World and certain of its executives are charged with failing to disclose material information during the Class Period, violating federal securities laws. On August 7, 2018, the Company disclosed a wide range of disappointing results for the quarter ended June 30, 2018 including a decline in same-store revenue, adjusted EBITDA 9% below guidance, a continuing decline in its adjusted EBITDA margin of 250 basis points year-over-year, and additional complications with its Gander Mountain Co. operations. On this news, the price of Camping World's Class A shares plummeted 14%, to close at $19.04 per share on August 8, 2018. Lewis Kahn, Esq. Managing Partner Kahn Swick & Foti, LLC 1100 Poydras St., Suite 3200 New Orleans, LA 70163 Telephone: 1-877-515-1850 Email: lewis.kahn@ksfcounsel.com [GN] CAMPING WORLD: Kaskela Law Files Securities Class Action -------------------------------------------------------- Kaskela Law LLC disclosed that a shareholder class action lawsuit has been filed against Camping World Holdings, Inc. (NYSE: CWH) ("Camping World" or the "Company") on behalf of purchasers of the Company's Class A common stock between March 8, 2017 and August 7, 2018, inclusive (the "Class Period"). Camping World investors who suffered financial losses in excess of $100,000 are encouraged to contact Kaskela Law LLC (D. Seamus Kaskela, Esq.) at (888) 715-1740, or skaskela@kaskelalaw.com, for information about this action and their legal rights and recovery options. Additional information about this action may also be found at http://kaskelalaw.com/case/camping-world-holdings-inc/. IMPORTANT DEADLINE: Investors who purchased Camping World's Class A common stock during the Class Period may, no later than December 18, 2018, seek to be appointed as a lead plaintiff representative of the class. The shareholder class action complaint alleges that defendants made materially false and misleading statements during the Class Period, and failed to disclose to investors: (i) that the Company's disclosure controls and controls over financial reporting suffered from a host of material weaknesses; (ii) that the Company's historical financial results had been materially misstated; (iii) that the Company's Gander Mountain Co. ("Gander") stores had encountered integration setbacks, adversely impacting the Company's earnings growth and profit margins; and (iv) that the Company's core RV business was experiencing decelerating growth as the Company lagged industry trends and was losing market share to competitors. The complaint further alleges that, as a result of the foregoing, investors purchased Camping World's Class A common stock at artificially inflated prices as high as $47.19 per share during the Class Period, and suffered significant investment losses as a result of defendants' alleged misconduct. On May 8, 2018, Camping World reported disappointing First Quarter Fiscal 2018 financial and operational results, and revealed adverse trends in its core RV business indicating that the Company had lost significant market share to its competitors. On this news, shares of the Company's Class A common stock fell $4.60 per share, or nearly 17%, to close on May 8, 2018 at $23.02 per share. Then, on August 7, 2018, Camping World reported disappointing Second Quarter Fiscal 2018 financial and operational results and revealed that problems in its Gander operations were more extensive than previously disclosed. On this news, shares of the Company's Class A common stock fell an additional $3.17 per share, or over 14%, to close on August 8, 2018 at $19.04 per share. Camping World investors who suffered financial losses in excess of $100,000 are encouraged to contact Kaskela Law LLC for information about this action and their legal rights and recovery options. Additional information about this action may also be found at http://kaskelalaw.com/case/camping-world-holdings-inc/. D. Seamus Kaskela, Esq. KASKELA LAW LLC 201 King of Prussia Road Suite 650 Radnor, PA 19087 Telephone: (484) 258-1585 (888) 715-1740 Website: www.kaskelalaw.com Email: skaskela@kaskelalaw.com [GN] CAMPING WORLD: Robbins Geller Files Securities Class Action Suit ---------------------------------------------------------------- Robbins Geller Rudman & Dowd LLP disclosed that a class action has been commenced on behalf of purchasers of Camping World Holdings, Inc. (NYSE:CWH) Class A common stock during the period between March 8, 2017 and August 7, 2018 (the "Class Period"). This action was filed in the Northern District of Illinois and is captioned Ronge v. Camping World Holdings, Inc., et al., No. 18-cv-7030. The Private Securities Litigation Reform Act of 1995 permits any investor who purchased Camping World Class A common stock during the Class Period to seek appointment as lead plaintiff. A lead plaintiff acts on behalf of all other class members in directing the litigation. The lead plaintiff can select a law firm of its choice. An investor's ability to share in any potential future recovery is not dependent upon serving as lead plaintiff. If you wish to serve as lead plaintiff, you must move the Court no later than 60 days from today. If you wish to discuss this action or have any questions concerning this notice or your rights or interests, please contact plaintiff's counsel, Darren Robbins of Robbins Geller at 800/449-4900 or 619/231-1058, or via e-mail at djr@rgrdlaw.com. You can view a copy of the complaint as filed at http://www.rgrdlaw.com/cases/campingworld/. The complaint charges Camping World, certain of its officers and directors and controlling shareholders with violations of the Securities Exchange Act of 1934. Historically, the Company specialized in selling recreational vehicles ("RVs") and related services. In October 2016, Camping World went public in a $261 million initial public offering. In the months that followed, Camping World engaged in a number of strategic acquisitions. Most significantly, in May 2017, Camping World announced that it would be expanding its operations to include retail stores for outdoor sporting supplies and accessories by acquiring certain assets of Gander Mountain Co. ("Gander") from bankruptcy. The complaint alleges that during the Class Period, defendants made false and misleading statements and/or failed to disclose adverse information regarding Camping World's business, operations and financial condition. Specifically, the complaint alleges defendants failed to disclose, among other things, that the Company's disclosure controls and controls over financial reporting suffered from a host of material weaknesses; that the Company's historical financial results had been materially misstated; that the Gander stores had encountered integration setbacks, adversely impacting the Company's earnings growth and profit margins; and that the Company's core RV business was experiencing decelerating growth as the Company lagged industry trends and was losing market share to competitors. As a result of this information being withheld from the market, the price of Camping World Class A common stock was artificially inflated to a high of $47.19 per share during the Class Period. On February 27, 2018, the Company issued a release revealing that the Company had "recently identified material weaknesses in [its] internal control over financial reporting." The release also revealed that Camping World would need to revise prior reporting periods due to various "errors." The cumulative impact of these misstatements required the Company to restate and reduce its 2016 basic earnings per share from $0.11 per share to $0.08 per share, as the prior reported basic earnings per share had been overstated by more than 37%. Thereafter, on March 1, 2018, Camping World announced that it would be unable to timely file its 2017 Form 10-K due to expected material weaknesses in its internal control over financial reporting. On this news, between February 26, 2018 and March 2, 2018, the price of Camping World Class A common stock dropped $4.63 per share, or more than 10%. On May 8, 2018, Camping World reported disappointing financial results for the quarter ended March 31, 2018, including a decrease in adjusted EBITDA and adjusted EBITDA margin. In addition, the Company revealed adverse trends in its core RV business indicating that it had lost significant market share to its competitors. On this news, the price of Camping World Class A stock fell 17%. On May 22, 2018, Camping World announced it had replaced its auditor of 13 years, causing the price of the stock to decline another 10%. Then, on August 7, 2018, Camping World reported disappointing financial results for the quarter ended June 30, 2018, including adjusted EBITDA of only $140.2 million for the quarter, 9% below its previous guidance. In addition, Camping World revealed that its adjusted EBITDA margin had continued to deteriorate and had fallen 250 basis points year-over-year, while its same-store revenues had experienced a "modest decline," again underperforming the broader market. In addition, the Company revealed that problems in its Gander operations were more extensive than previously disclosed. On this news, the price of Camping World Class A stock fell $3.17 per share, or 14%, to close at $19.04 per share on August 8, 2018. Plaintiff seeks to recover damages on behalf of all purchasers of Camping World Class A common stock during the Class Period (the "Class"). The plaintiff is represented by Robbins Geller, which has extensive experience in prosecuting investor class actions including actions involving financial fraud. Robbins Geller, Esq. Darren Robbins, Esq. Telephone: 800/449-4900 619/231-1058 Email: djr@rgrdlaw.com [GN] CARDIFF BAY: Nivelle Seeks Unpaid Overtime Pay under FLSA --------------------------------------------------------- Ceela Nivelli, Individually, and on behalf of all others similarly situated, the Plaintiff, vs. Cardiff Bay Center, LLC, the Defendant, Case No. 1:18-cv-06028 (E.D.N.Y., Oct. 29, 2018), seeks to recover unpaid wages from Defendant for working more than 40 hours in a week and not being paid an overtime rate of at least 1.5 times the regular rate for each and all such hours over 40 in a week, and maximum liquidated damages and attorneys' fees pursuant to the Fair Labor Standards Act, the New York Minimum Wage Act, and the New York Labor Law. According to the complaint, the Plaintiff was employed by Defendant to provide care and assistance to its elderly residents and patients -- a variety of manual work involved in handling elderly and physically-challenged residents. In fact, given the significant manual aspects of her work, Plaintiff was seriously injured while helping to lift and move one of the residents while working for Defendant. The Plaintiff was paid at her straight regular rate for each and all hours worked in a week including some overtime hours worked (hours over 40 in a week), except that Plaintiff was not paid at all for about 5-8 hours weekly. For example, for the bi-weekly pay period ending December 16, 2017, Plaintiff worked more than 81 hours but was paid at her straight regular hourly rate of $43.59 an hour for 81 hours by Defendant. This example is reflective of Defendant's payment pattern throughout Plaintiff's employment and the Class periods, the lawsuit says. Cardiff Bay Center LLC is a skilled nursing facility.[BN] Counsel for Plaintiff: Abdul Hassan, Esq. 215-28 Hillside Avenue Queens Village, NY 11427 Telephone: 718 740-1000 Facsimile: 718 355-9668 E-mail: abdul@abdulhassan.com CEMEX CONSTRUCTION: Grigoryan Labor Suit Remains in District Court ------------------------------------------------------------------ Judge Manuel L. Real of the U.S. District Court for the Central District of California denied the Plaintiff's Motion to Remand the case, KAREN GRIGORYAN; et al., Plaintiffs, v. CEMEX CONSTRUCTION MATERIALS PACIFIC, LLC; et al., Defendants, Case No. CV 18-1563-R (C.D. Cal.). On Dec. 1, 2017, the Plaintiff, individually and on behalf of all others similarly situated, filed a purported Class Action Complaint against Defendants in the Superior Court of the State of California, County of San Bernardino. On Feb. 5, 2018, she filed a First Amended Class Action Complaint against the Defendants. On March 26, 2018, the San Bernardino County Superior Court granted the Plaintiff leave to file a Second Amended Complaint. The Plaintiff's Second Amended Class Action Complaint alleges claims of failure to provide meal periods, failure to authorize and permit rest periods, failure to provide accurate itemized wage statements, unfair competition, and penalties under the Private Attorneys General Act of 2004. On July 20, 2018, the Defendants filed a Notice of Removal, alleging jurisdiction under the Class Action Fairness Act of 2005 ("CAFA"). The Plaintiff now moves to remand for lack of jurisdiction under CAFA. The Plaintiff does not contest that the parties are diverse or that there is sufficient numerosity for the putative Class under CAFA. The Plaintiff specifically challenges removal jurisdiction alleging that the Defendants have failed to satisfy CAFA's amount in controversy requirement. She argues that the Defendants' contention that the aggregate amount to be recovered by the Plaintiff and the other putative class members exceeds the sum of $5 million is an inaccurate assumption based on erroneous calculations which are supported by conclusory and speculative assertions. Judge Real is not persuaded by the Plaintiff's argument. However, he agrees with the Defendants that the Defendants' Notice of Removal established the amount in controversy to total at least an estimated $5,276,960, based on the allegations pled in the Plaintiff's Second Amended Complaint for the First, Second, and Third Causes of Action. The Plaintiff contends that Defendants' amount in controversy falls short of the excess of $5 million threshold by, at most, $56,631.40. He concludes that the Second Amended Complaint does not state an amount in controversy for the first four causes of action except to state in its Prayer for Relief for the Fourth Cause of Action that the Plaintiff seeks an amount according to proof, but not less than $3 million. Thus, the pleading does not reveal on its face that the amount in controversy met CAFA's threshold. Accordingly, he denied the Plaintiff's Motion to Remand. A full-text copy of the Court's Oct. 16, 2018 Order is available at https://is.gd/MgJny3 from Leagle.com. Karen Grigoryan, individually and on behalf of all others similarly situated, Plaintiff, represented by Amaras Zargarian, Law Offices of Erica A. Boyajian APC, Eric Albert Boyajian, Law Offices of Eric A. Boyajian APC, Gregory E. Mauro -- greg@jameshawkinsaplc.com -- James Hawkins APLC, James R. Hawkins -- james@jameshawkinsaplc.com -- James Hawkins APLC & Michael J.S. Calvo -- michael@jameshawkinsaplc.com -- James Hawkins APLC. Cemex Construction Materials Pacific, LLC, a Delaware Limited Liability Company & Cemex, Inc., a Louisiana Corporation, Defendants, represented by Emily Jane Leahy -- ELeahy@hansonbridgett.com -- Hanson Bridgett LLP, Jennifer M. Martinez -- jmartinez@hansonbridgett.com -- Hanson Bridgett LLP & Dorothy Sheng-Ing Liu -- dliu@hansonbridgett.com -- Hanson Bridgett LLP. Max Pina, Defendant, represented by Dorothy Sheng-Ing Liu, Hanson Bridgett LLP & Jennifer M. Martinez, Hanson Bridgett LLP. CENTRE COUNTY: Removes Sheffer Suit to M.D. Pennsylvania -------------------------------------------------------- The Defendants in the case of MATTHEW JOHN SHEFFER, individually and on behalf of all others similarly situated, Plaintiff v. CENTRE COUNTY; KATHERINE V. OLIVER, Common Pleas Judge; BRIAN K. MARSHALL, Common Pleas Judge; PAMELA A. RUEST, Common Pleas Judge; THOMAS KING KISTLER, Common Pleas Judge; CARMINE W. PRESTIA, Magisterial District Judge; THOMAS JORDAN, Magisterial District Judge; CRYSTAL HUNDT, Assistant District Attorney; JEFFERY EBECK, PA State Trooper; and STEPHANIE L. COOPER, Defendants, filed a notice to remove the lawsuit from the Centre County Court of the State of Pennsylvania (Case No. 2018-cv-2276) to the U.S. District Court for the Middle District of Pennsylvania on October 24, 2018. The clerk of court for the District of Pennsylvania assigned Case No. 4:18-cv-02080-MWB-KM. The case is assigned to Honorable Matthew W. Brann and referred to Magistrate Judge Karoline Mehalchick. Centre County is a county in the U.S. state of Pennsylvania. [BN] The Plaintiff is represented pro se. The Defendants are represented by: Robert Allen Mix, Esq. LEE GREEN & REITER, INC. 115 E. High Street Lock Drawer 179 Bellefonte, PA 16823 Telephone: (814) 355-4769 Facsimile: (814) 355-5024 E-mail: bmix@lmgrlaw.com - and - Keli M. Neary, Esq. Office of Attorney General 15th Floor, Strawberry Square Harrisburg, PA 17120 Telephone: (717) 787-1180 Facsimile: (717) 772-4526 E-mail: kneary@attorneygeneral.gov CEPHALON INC: Summary Judgment in TCPA Suit Granted --------------------------------------------------- The United States District Court for the Eastern District of Pennsylvania issued a Memorandum granting Defendant's Motion for Summary Judgment in the case captioned PHYSICIANS HEALTHSOURCE, INC., individually and as the representative of a class of similarly-situated persons, v. CEPHALON, INC., et al., Defendants, and SCIMEDICA GROUP, LLC, et al., Defendants/Third Party Plaintiffs, v. BLITZ RESEARCH, INC., Third Party Defendant. Civil Action No. 12-3753. (E.D. Pa.). Before the Court are the Motion for Summary Judgment filed by Defendants Cephalon, Inc., Cephalon Clinical Partners, L.P., and Cephalon Development Corporation (Cephalon). Plaintiff, Physicians Healthsource, Inc. (PHS), has brought this putative class action pursuant to the Telephone Consumer Protection Act of 1991 (TCPA), as amended by the Junk Fax Prevention Act (JFPA), asserting that it was damaged by its receipt of two unsolicited advertisements sent to it by facsimile transmission (fax) on behalf of Cephalon, Inc. in 2009. LEGAL STANDARD Summary judgment is appropriate if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. An issue is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. The JFPA The JFPA bans the faxing of unsolicited advertisements. An advertisement is unsolicited if it advertises the commercial availability or quality of any property, goods, or services and is transmitted to any person without that person's prior express invitation or permission, in writing or otherwise. There is one exception to the JFPA's ban on unsolicited faxes. The exception applies only if the following three elements are present: (1) the sender has an established business relationship with the recipient (2) the recipient voluntarily provided the number of its telephone facsimile machine to the sender in the context of their established business relationship or voluntarily made its facsimile telephone number available for public distribution through a directory, advertisement, or site on the internet and (3) the unsolicited advertisement contains an opt-out notice that meets certain requirements. PHS argues that we should deny the Motions for Summary Judgment even if the faxes at issue were solicited advertisements because Bais Yaakov is not binding in this Circuit and the Solicited Fax Rule consequently applies here until the United States Court of Appeals for the Third Circuit finds that it is unlawful. The Unites States Court of Appeals for the Sixth Circuit rejected a similar argument in Sandusky Wellness Center, LLC v. ASD Specialty Healthcare, Inc., 863 F.3d 460 (6th Cir. 2017), cert. denied, 138 S.Ct. 1284 (2018), because the D.C. Circuit's decision in Bais Yaakov did not only decide the administrative petition filed by Bais Yaakov, but also decided administrative petitions challenging the Solicited Fax Rule that had been filed by other parties including Cephalon, which were assigned to the D.C. Circuit by the Judicial Panel on Multidistrict Litigation. The Sixth Circuit explained that once the Multidistrict Litigation Panel assigned petitions challenging the Solicited Fax Rule to the D.C. Circuit, that court became the sole forum for addressing the validity of the FCC's rule. The Sixth Circuit further explained that this result is in keeping with the intent of Congress in regulating the procedure for challenging FCC rules pursuant to the Hobbs Act, stating that by consolidating petitions into a single circuit court, the statute promotes judicial efficiency and ensures uniformity nationwide. The United States Court of Appeals for the Ninth Circuit also rejected an argument similar to PHS's in True Health Chiropractic, Inc. v. McKesson Corp., 896 F.3d 923 (9th Cir. 2018), explaining that, when the Judicial Panel on Multidistrict Litigation consolidates challenges to an agency regulation and transfers them to a court of appeals, the court to which they are transferred becomes the sole forum for addressing the validity of the FCC's rules. The decision of that court is then binding on all circuits. Thus, the Ninth Circuit agreed with the reasoning of the Sixth Circuit and [held] that it is bound by Bais Yaakov. District Courts in the First, Seventh, and Eleventh Circuits have also considered this issue and determined that they are bound by the decision of the D.C. Circuit in Bais Yaakov. The KHS Court also found the reasoning of Bais Yaakov to be sufficiently persuasive that it adopted that reasoning. The are persuaded by the reasoning of the Sixth Circuit in Sandusky, the Ninth Circuit in True Health Chiropractic, and by the district court opinions listed above, and we conclude that the decision of the D.C. Circuit invalidating the Solicited Fax Rule in Bais Yaakov is binding in this case. Accordingly, the Court conclude that the Solicited Fax Rule does not apply in this case. Burden of Proof Since the Solicited Fax Rule does not apply in this case, Cephalon and SciMedica assert that PHS can only survive the instant Motion for Summary Judgment as to its JFPA claim if it can establish that the January 16 and August 27, 2009 faxes were sent without its consent. A faxed advertisement is unsolicited if it is transmitted to any person without that person's prior express invitation or permission, in writing or otherwise. PHS maintains, however, that it does not have the burden of proving that the faxes were sent without its consent, because the existence of prior express permission is as an affirmative defense to a claim brought pursuant to Section 227(b)(1)(C).5 PHS relies on a decision of the Third Circuit that concluded that a similar exception to the application of Section 227(b)(1)(A) of the TCPA is an affirmative defense. Section 227(b)(1)(A) prohibits the use of an automatic telephone dialing system or artificial prerecorded voice in specific circumstances unless the call is made for emergency purposes or made with the prior express consent of the called party. In Evankavitch, the Third Circuit considered which party has the burden of proof with respect to whether a telephone call that was subject to Section 227(b)(1)(A)(iii) was made with the recipient's prior express consent. The Third Circuit concluded that, while the TCPA is silent about the burden of proving the exceptions to the restrictions provided by 47 U.S.C. Section 227(b)(1)(A), the exceptions should be treated as affirmative defenses because, to the extent a caller seeks to avail itself of an exemption to a general ban on a certain category of calls, the caller is in the best position to generate and maintain records of those communications. Thus, the defendant, as the party claiming that the plaintiff provided prior express consent to receive autodialed or prerecorded calls, would have the burden of proving that prior express consent at trial. Prior Express Permission Cephalon and SciMedica argue that they are entitled to summary judgment because Cephalon had prior express permission to fax to PHS the two advertisements at issue in this case and, thus, the faxes were not unsolicited and are not subject to Section 227(b)(1)(C). Here, Cephalon and SciMedica rely on Dr. Martinez's deposition testimony regarding his contacts with representatives of Cephalon to establish that he gave prior permission to Cephalon to send him information by fax. As we mentioned above, Dr. Martinez was employed by PHS as a primary care physician in the area of pain management. Dr. Martinez testified that PHS encouraged its doctors to meet with drug company representatives to obtain information about the drug companies' products. Representatives from Cephalon generally met with doctors at PHS's office once a month. Dr. Martinez met with approximately half of the representatives that Cephalon sent to PHS and primarily discussed muscle relaxers for musculoskeletal pain syndromes, diuretics, and narcotic drugs for chronic pain. They discussed both Cephalon's established drugs and new product and services offered by Cephalon. Dr. Martinez specifically recalls talking to representatives of Cephalon about Amrix, Fentora, Provigil, Actiq, and Gabatril. Cephalon's representatives left product information with Dr. Martinez and also obtained his permission to follow up by sending him additional information. At the same time, PHS left business cards containing its office fax number on its receptionist's desk, so that patients and drug company representatives could use that number to contact Dr. Martinez. Approximately once a month, Dr. Martinez received a follow-up fax from Cephalon's representatives. In addition to providing Dr. Martinez with information about Cephalon's products, Cephalon's representatives also gave product samples to Dr. Martinez, including samples of Amrix. The Court finds that the Defendants have submitted undisputed evidence that establishes that Dr. Martinez gave Cephalon's representatives permission to send him additional information about the subject matters they discussed. The Court further finds that Defendants have submitted undisputed evidence that establishes that PHS provided business cards containing its fax number to drug company representatives to enable those representatives to fax information to Dr. Martinez. Because the Defendants have established that the two faxed advertisements at issue in this case were sent with the prior express permission of an employee of PHS, the Court concludes that the faxes were not unsolicited and that the provisions of Section 227(b)(1)(C) requiring the inclusion of opt-out information did not apply to those faxes. Accordingly, the Court concludes that the Defendants are entitled to the entry of judgment in their favor as a matter of law as to PHS's claim for violation of Section 227(b)(1)(C) and the Court grants Defendants' Motions for Summary Judgment. A full-text copy of the District Court's October 29, 2018 Memorandum is available at https://tinyurl.com/y83gxcmu from Leagle.com. PHYSICIANS HEALTHSOURCE, INC., INDIVIDUALLY AND AS THE REPRESENTATIVE OF A CLASS OF SIMILARLY-SITUATED PERSONS, Plaintiff, represented by ANN M. CALDWELL, CALDWELL LAW OFFICE LLC, BRIAN J. WANCA -- bwanca@andersonwanca.com -- ANDERSON & WANCA & RYAN M. KELLY -- rkelly@andersonwanca.com -- ANDERSON & WANCA. CEPHALON, INC., CEPHALON CLINICAL PARTNERS, L.P. & CEPHALON DEVELOPMENT CORPORATION, Defendants, represented by JOSEPH E. WOLFSON -- jwo@stevenslee.com -- STEVENS & LEE & NICHOLAS H. PENNINGTON -- nhp@stevenslee.com -- STEVENS & LEE PC. SCIMEDICA GROUP, LLC & SCIMEDICA GROUP MARKETING RESEARCH AND CONSULTING, LLC, Defendants, represented by JEFFREY S. DOWNS & SHERYL S. LEVY, Halpern & Levy, P.C. CHURCHILL DOWNS: Awaits Court Decision on Writ of Certiorari ------------------------------------------------------------ Churchill Downs Incorporated 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 parties in Louisiana Horsemens' Purses Class Action Suit are awaiting the court's decision on the Fair Grounds Defendants' petition for Writ of Certiorari. The Fair Grounds Defendants filed a Writ of Certiorari to the Louisiana Supreme Court seeking review of a Fourth Circuit Court of Appeal's decision. Briefing is complete and a decision is pending. The parties participated in unsuccessful non-binding mediation on October 18, 2018. On April 21, 2014, John L. Soileau and other individuals filed a Petition for Declaratory Judgment, Permanent Injunction, and Damages-Class Action styled John L. Soileau, et. al. versus Churchill Downs Louisiana Horseracing, LLC, Churchill Downs Louisiana Video Poker Company, LLC (Suit No. 14-3873) in the Parish of Orleans Civil District Court, State of Louisiana (the "District Court"). The petition defined the "alleged plaintiff class" as quarter-horse owners, trainers and jockeys that have won purses at the "Fair Grounds Race Course & Slots" facility in New Orleans, Louisiana since the first effective date of La. R.S. 27:438 and specifically since 2008. The petition alleged that Churchill Downs Louisiana Horseracing, L.L.C. and Churchill Downs Louisiana Video Poker Company, L.L.C. ("Fair Ground Defendants") have collected certain monies through video draw poker devices that constitute monies earned for purse supplements and all of those supplemental purse monies have been paid to thoroughbred horsemen during Fair Grounds' live thoroughbred horse meets. La. R.S. 27:438 requires a portion of those supplemental purse monies to be paid to quarter-horse horsemen during Fair Grounds' live quarter-horse meets. The petition requested that the District Court declare that Fair Grounds Defendants violated La. R.S. 27:438, issue a permanent and mandatory injunction ordering Fair Grounds Defendants to pay all future supplements due to the plaintiff class pursuant to La. R.S. 27:438, and to pay the plaintiff class such sums as it finds to reasonably represent the value of the sums due to the plaintiff class. On August 14, 2014, the plaintiffs filed an amendment to their petition naming the Horsemen's Benevolent and Protective Association 1993, Inc. ("HBPA") as an additional defendant and alleging that HBPA is also liable to plaintiffs for the disputed purse funds. On October 9, 2014, HBPA and Fair Grounds Defendants filed exceptions to the suit, including an exception of primary jurisdiction seeking referral to the Louisiana Racing Commission. By Judgment dated November 21, 2014, the District Court granted the exception of primary jurisdiction and referred the matter to the Louisiana Racing Commission. On January 26, 2015, the Louisiana Fourth Circuit Court of Appeals denied the plaintiffs' request for supervisory review of the Judgment. On August 24, 2015, the Louisiana Racing Commission ruled that the plaintiffs did not have standing or a right of action to pursue the case. On September 18, 2015, the plaintiffs filed a Petition for Appeal of Administrative Order Dismissing Case for No Right of Action in the District Court seeking a reversal of the Louisiana Racing Commission’s ruling. On July 13, 2016, the plaintiffs filed their brief with the District Court and Fair Grounds Defendants filed its brief on August 12, 2016. A hearing was held at the District Court on September 15, 2016 and the District Court affirmed the Louisiana Racing Commission's ruling. The plaintiffs filed an appeal with the Louisiana Fourth Circuit Court of Appeals on December 7, 2016. By Order dated August 23, 2017, the Louisiana Fourth Circuit Court of Appeals dismissed the plaintiffs' appeal without prejudice because the District Court's Judgment did not contain the necessary decretal language. To correct this deficiency, the District Court entered an Amended Judgment on September 19, 2017. On December 11, 2017, the plaintiffs appealed the Amended Judgment to the Louisiana Fourth Circuit Court of Appeals. On June 13, 2018, the Louisiana Fourth Circuit Court of Appeals reversed the Louisiana Racing Commission's ruling and remanded the matter to the Louisiana Racing Commission for further proceedings. On June 27, 2018, the Fair Grounds Defendants filed a Motion for Rehearing with the Louisiana Fourth Circuit Court of Appeals which was denied on July 12, 2018. On August 10, 2018, the Fair Grounds Defendants filed a Writ of Certiorari to the Louisiana Supreme Court seeking review of the Fourth Circuit Court of Appeal's decision. Briefing is complete and a decision is pending. The parties participated in unsuccessful non-binding mediation on October 18, 2018. Churchill Downs Incorporated operates as a racing, gaming, and online entertainment company in the United States. It operates through Racing, Casinos, TwinSpires, and Other Investments segments. Churchill Downs Incorporated was founded in 1928 and is headquartered in Louisville, Kentucky. CHURCHILL DOWNS: Continues to Defend Kater Class Suit ----------------------------------------------------- Churchill Downs Incorporated 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 purported class action suit entitled, Cheryl Kater v. Churchill Downs Incorporated. On April 17, 2015, a purported class action styled Cheryl Kater v. Churchill Downs Incorporated (the "Kater litigation") was filed in the United States District Court for the Western District of Washington (the "District Court") alleging, among other claims, that the Company's "Big Fish Casino" operated by the Company's then-wholly owned mobile gaming subsidiary Big Fish Games violated Washington law, including the Washington Consumer Protection Act, by facilitating unlawful gambling through its virtual casino games (namely the slots, blackjack, poker, and roulette games offered through Big Fish Casino), and seeking among other things, return of monies lost, reasonable attorney’s fees and injunctive relief. On November 19, 2015, the District Court dismissed the case with prejudice and, on December 7, 2015, Plaintiff's motion for reconsideration was denied. Plaintiff filed a notice of appeal on January 5, 2016 to the United States Court of Appeals for the Ninth Circuit. On January 9, 2018, the Company sold Big Fish Games to Aristocrat Technologies, Inc., a Nevada corporation (the "Purchaser"), an indirect, wholly owned subsidiary of Aristocrat Leisure Limited, an Australian corporation pursuant to the Stock Purchase Agreement, dated as of November 29, 2017, by and among the Company, Big Fish Games and the Purchaser. Pursuant to the terms of the Stock Purchase Agreement, the Company agreed to indemnify the Purchaser for the losses and expenses associated with the Kater litigation for Big Fish Games, which is referred to in the Stock Purchase Agreement as the "Primary Specified Litigation." On February 6, 2018, oral arguments on Plaintiff's appeal of the dismissal of the Kater litigation took place before the United States Court of Appeals for the Ninth Circuit. On March 28, 2018, the United States Court of Appeals for the Ninth Circuit reversed and remanded the District Court's dismissal of the complaint against the Company. On June 12, 2018, the United States Court of Appeals for the Ninth Circuit denied the Company's Petition for Rehearing En Banc filed by the Company on May 11, 2018. On July 13, 2018, the parties filed a Joint Status Report and Discovery Plan in the District Court. On July 20, 2018, the Company filed a Motion to Compel Arbitration in the District Court. Churchill Downs said, "In accordance with the terms of the Stock Purchase Agreement, the Company is working closely with the Purchaser to vigorously defend this matter in both the District Court and in any further appellate proceedings, and the Company believes that there are meritorious legal and factual defenses against Plaintiff's allegations and requests for relief." No further updates were provided in the Company's SEC report. Churchill Downs Incorporated operates as a racing, gaming, and online entertainment company in the United States. It operates through Racing, Casinos, TwinSpires, and Other Investments segments. Churchill Downs Incorporated was founded in 1928 and is headquartered in Louisville, Kentucky. CITIGROUP INC: Bid for Approval of Settlement Filed in Libor Suit ----------------------------------------------------------------- Citigroup Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 30, 2018, for the quarterly period ended September 30, 2018, that investors who transacted in Eurodollar futures or options on exchanges are seeking court approval of a settlement to resolve their class action lawsuit. On July 19, 2018, in IN RE LIBOR-BASED FINANCIAL INSTRUMENTS ANTITRUST LITIGATION, the court granted preliminary approval of the settlement between a putative class of plaintiffs (lending institutions with interests in loans tied to USD LIBOR) and Citigroup and Citibank. On August 1, 2018, the court granted final approval of the settlement between the largest plaintiffs' class (investors who purchased over-the-counter derivatives from USD LIBOR panel banks) and Citigroup and Citibank. On September 8, 2018, a putative class of plaintiffs (investors who transacted in Eurodollar futures or options on exchanges) filed motions for approval of a settlement with Citigroup, Citibank, CGMI and other settling defendants. Additional information concerning these actions and related actions and appeals is publicly available in court filings under the docket numbers 11 MD 2262 (S.D.N.Y.) (Buchwald, J.) and 16-1189 (2d Cir.). Citigroup Inc., a diversified financial services holding company, provides various financial products and services for consumers, corporations, governments, and institutions. The company operates through two segments, Global Consumer Banking (GCB) and Institutional Clients Group (ICG). The company operates in North America, Latin America, Asia, Europe, the Middle East, and Africa. Citigroup Inc. was founded in 1812 and is based in New York, New York. CITIGROUP INC: Bid to Dismiss SSA-Related Suit Okayed ----------------------------------------------------- Citigroup Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 30, 2018, for the quarterly period ended September 30, 2018, that defendants' motion to dismiss the consolidated putative class action complaints related to the supranational, sub-sovereign and agency (SSA) bond market was granted on August 24, 2018. Plaintiffs may file a second amended complaint by November 6, 2018. Additional information relating to this action is publicly available in court filings under the docket number 16 Civ. 3711 (S.D.N.Y.) (Ramos, J.). Citigroup Inc., a diversified financial services holding company, provides various financial products and services for consumers, corporations, governments, and institutions. The company operates through two segments, Global Consumer Banking (GCB) and Institutional Clients Group (ICG). The company operates in North America, Latin America, Asia, Europe, the Middle East, and Africa. Citigroup Inc. was founded in 1812 and is based in New York, New York. CITIGROUP INC: Contant Plaintiffs Seek Initial Settlement Approval ------------------------------------------------------------------ Citigroup Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 30, 2018, for the quarterly period ended September 30, 2018, that the plaintiffs in CONTANT, ET AL. v. BANK OF AMERICA CORPORATION, ET AL., moved on August 21, 2018, for preliminary approval of a proposed class settlement with Citigroup, Citibank, Citicorp and CGMI. Additional information concerning this action is publicly available in court filings under the docket number 17 Civ. 3139 (S.D.N.Y.) (Schofield, J.). Citigroup Inc., a diversified financial services holding company, provides various financial products and services for consumers, corporations, governments, and institutions. The company operates through two segments, Global Consumer Banking (GCB) and Institutional Clients Group (ICG). The company operates in North America, Latin America, Asia, Europe, the Middle East, and Africa. Citigroup Inc. was founded in 1812 and is based in New York, New York. CITIGROUP INC: Court Affirms Order Denying Bid to Expand Class -------------------------------------------------------------- Citigroup Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 30, 2018, for the quarterly period ended September 30, 2018, that in NYPL v. JPMORGAN CHASE & CO., ET AL., the court on June 20, 2018, denied plaintiffs' request to expand their class to include credit card, wire and ATM transactions with a foreign currency exchange component. On September 6, 2018, the court denied plaintiffs' motion for reconsideration. Additional information concerning this action is publicly available in court filings under the docket numbers 15 Civ. 2290 (N.D. Cal.) (Chhabria, J.) and 15 Civ. 9300 (S.D.N.Y.) (Schofield, J.). Citigroup Inc., a diversified financial services holding company, provides various financial products and services for consumers, corporations, governments, and institutions. The company operates through two segments, Global Consumer Banking (GCB) and Institutional Clients Group (ICG). The company operates in North America, Latin America, Asia, Europe, the Middle East, and Africa. Citigroup Inc. was founded in 1812 and is based in New York, New York. CORIUM INTERNATIONAL: Wang Balks at Merger Deal with Gurnet ----------------------------------------------------------- ELAINE WANG, on behalf of herself and all others similarly situated, the Plaintiff, vs. CORIUM INTERNATIONAL, INC., ERIC H. BJERKHOLT, BHASKAR CHAUDHURI, PH.D., RONALD EASTMAN, PHYLLIS GARDNER, M.D., IVAN GERGEL, M.D., PAUL GODDARD, PH.D., DAVID L. GREENWOOD, PETER D. STAPLE, ROBERT W. THOMAS, the Defendants, Case 4:18-cv-06590-JSW (N.D. Cal., Oct. 29, 2018), seeks to enjoin Defendants from taking any steps to consummate a proposed transaction unless, and until, all material information is disclosed to Corium stockholders sufficiently in advance of the expiration of the tender offer period or, in the event the Proposed Transaction is consummated without corrective disclosures, to recover damages resulting from the Defendants' violations of the Exchange Act. According to the complaint, the case is a shareholder class action brought by Plaintiff on behalf of herself and all other similarly situated public shareholders of Corium to enjoin the Proposed Transaction whereby the Board has agreed to sell Corium to Gurnet Merger Sub, Inc. a wholly owned subsidiary of Gurnet, for (i) $12.50 in cash for each share of Corium stock owned plus (ii) one contingent value right per share ("CVR"), which shall represent the right to receive $0.50 per share upon the approval of the New Drug Application for the Company's lead product candidate, the drug Corplex Donepezil by the United States Food and Drug Administration on or prior to March 31, 2020. The Proposed Transaction is at an unfair price and on grossly unfair and inadequate terms. The total equity value of the Proposed Transaction is approximately $504 million. The Board has unanimously recommended to the Company's stockholders that they vote for the Proposed Transaction. The Defendants expect to complete the Proposed Transaction in the last quarter of 2018. The tender offer is scheduled to expire at one minute after 11:59 p.m. Eastern Time, on November 26, 2018, unless extended or earlier terminated in accordance with the terms of the merger agreement. The Proposed Transaction is the product of a hopelessly flawed process that is designed to ensure the sale of Corium to Gurnet on terms preferential to Defendants and other Corium insiders and to subvert the interests of Plaintiff and the other public stockholders of the Company. The Proposed Transaction is being driven by the Company's current Board and management, who collectively hold 30.8% of Corium's outstanding shares. The Board and other Company insiders seek liquidity for their illiquid holdings in Corium stock, and the Proposed Transaction offers significant liquidity for their illiquid shares. If the Proposed Transaction closes, the Board and the Company management will receive $121,803,437.50 plus $4,872,137.50 in cash pursuant to the CVR Agreement. In addition, the Board and management will receive golden parachute and severance payments in the event of a qualifying termination, in 11 addition to acceleration of unvested stock. Corium's largest stockholder, Essex Woodlands Health Ventures Fund VII, L.P., has entered into a Tender and Support Agreement to tender its shares into the tender offer. EW Fund owns 26% of the outstanding shares of the Company. Its sole partner is Essex Woodlands Healthcare Partners, where defendant Eastman is one of its Managing Directors. To convince Corium stockholders to tender their shares, on October 26, 2018, the Board authorized the filing of a materially incomplete and misleading 14D-9. Defendants have failed to disclose certain material information necessary for Corium stockholders to properly assess the fairness of the Proposed Transaction, thereby violating SEC rules and regulations and rendering certain statements in the 14D-9 materially incomplete and misleading. In particular, the 14D-9 contains materially incomplete and misleading information concerning the financial forecasts for the Company and Gurnet that were both prepared and relied upon by the Board in recommending the Company's stockholders to tender their shares. The same forecasts were used by Corium’s financial advisor, Guggenheim Securities, LLC, in conducting its valuation analyses in support of its fairness opinions. Also omitted and/or misleading is information regarding Guggenheim's financial analysis, and the background of the 28 Proposed Transaction. The material information that has been omitted from the 14D-9 must be disclosed prior to the tender offer in order to allow the stockholders to make an informed decision regarding whether to tender their shares, the lawsuit says. Corium is a commercial-stage biopharmaceutical company.[BN] Attorneys for Plaintiff: Rachele R. Byrd, Esq. Marisa C. Livesay, Esq. Brittany N. Dejong, Esq. WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP 750 B Street, Suite 2770 San Diego, CA 92101 Telephone: (619) 239-4599 Facsimile: (619) 234-4599 E-mail: byrd@whafh.com livesay@whafh.com dejong@whafh.com - and - Gloria Kui Melwani, Esq. WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP 270 Madison Avenue New York, NY 10016 Telephone: (212) 545-4600 Facsimile: (212) 686-0114 CRAFTWORKS RESTAURANTS: Court Compels Arbitration in FLSA Suit -------------------------------------------------------------- The United States District Court, District of Columbia, issued a Memorandum Opinion granting in part Defendant's Motion to Compel Arbitration in the case captioned VASILIKI MITCHELL, Individually and on Behalf of All Other Persons Similarly Situated, Plaintiff, v. CRAFTWORKS RESTAURANTS & BREWERIES, INC., d/b/a GORDON BIERSCH BREWERY RESTAURANT, Defendant. Civil Action No. 18-879 (RC). (D.D.C.). Plaintiff Vasiliki Mitchell has filed a collective action complaint against her former employer, Defendant Craftworks Restaurants & Breweries Group, Inc., alleging that Craftworks violated the overtime provisions of the Fair Labor Standards Act (FLSA) and District of Columbia Minimum Wage Revision Act (D.C. Minimum Wage Act). Craftworks argues that the digitally signed Arbitration Agreement and these other personnel documents, when viewed in light of the online security procedures employed, prove that Ms. Mitchell agreed to sign the onboarding documents electronically and assented to the terms of the Arbitration Agreement. The Federal Arbitration Act (FAA) reflects a liberal federal policy favoring arbitration agreements, notwithstanding any state substantive or procedural policies to the contrary. By providing that arbitration agreements shall be valid, irrevocable, and enforceable, save upon any grounds as exist at law or in equity, the Act places arbitration agreements on an equal footing with other contracts and requires courts to enforce them according to their terms. The Formation of the Arbitration Agreement As noted above, when a party moves to compel arbitration under the FAA, that moving party bears the initial burden of presenting evidence sufficient to demonstrate the formation of an agreement to arbitrate under applicable state law, which the parties here agree is D.C. law. To meet this burden, Craftworks originally submitted a declaration by its Director of Human Resources, Ms. Fulmer, which states that, based on Ms. Fulmer's personal review of business records. Plaintiff Vasiliki Mitchell entered into a written Mutual Arbitration Agreement with CraftWorks. The submitted Arbitration Agreement containing Ms. Mitchell's electronic signature is a one-page, standalone document, which greatly reduces the risk that she could have electronically signed unwittingly. If the Court was presented with an agreement to arbitrate that was one inconspicuous provision of an extended form contract, the Court's view might be different, particularly because the DCUETA cautions that a party that agrees to conduct a transaction by electronic means may refuse to conduct other transactions by electronic means. This case does not present that concern, though, and given the simplicity of the Arbitration Agreement, the Court thinks that Ms. Mitchell's electronic signature, in and of itself, shows that she consented to conduct this particular transaction electronically. Thus, Craftworks's evidence, while not exhaustive, is alone sufficient to demonstrate the formation of an agreement to arbitrate and shift the burden to Ms. Mitchell. Turning to Ms. Mitchell's evidence, it does little to challenge the idea that she agreed to conduct this transaction by electronic means and that she electronically signed the Arbitration Agreement. She states that she does not remember signing an authorization to sign documents electronically, but as explained above, an express agreement to conduct transactions electronically is not necessary under the DCUETA. She also acknowledges that, in October and early November 2016, she signed many `onboarding' forms in order to initiate her employment and that she signed certain of these onboarding documents electronically. Instead of creating doubt, this admission only lends further support to the Court's initial conclusion that Ms. Mitchell agreed to conduct the transaction by electronic means. Critically, Ms. Mitchell does not outright deny that she electronically signed the Arbitration Agreement either; she merely states that she has no recollection of signing, reading, or negotiating it. Given the evidence that Craftworks submitted, this qualified denial is not enough to create a genuine dispute regarding her assent to the Agreement. Rather, to defeat Craftworks's motion, Ms. Mitchell must make an unequivocal denial that an arbitration agreement exists and must also show sufficient facts in support. She has done neither. In sum, then, regardless of whether the Court considers Craftworks's reply evidence, it finds that Craftworks has met its burden of presenting sufficient evidence to demonstrate the formation of an agreement to arbitrate. Ms. Mitchell, meanwhile, may not remember signing the Arbitration Agreement, but she has not produced any evidence that casts doubt on the Agreement's existence. Thus, the Court concludes that she has failed to establish a genuine dispute as to the Agreement's formation. The Enforceability of the Arbitration Agreement Ms. Mitchell also argues that the terms of the Agreement are unenforceable. As alluded to above, this contention focuses on Craftworks's Team Member Handbook, which includes an Acknowledgement of Receipt form providing that Craftworks retains the sole right to modify, suspend, interpret, or cancel in whole, or in part, any of its published or unpublished company guidelines or practices without advance notice and without having to give justification. The executed Arbitration Agreement, meanwhile, is, on its face, a standalone, enforceable document that does not reference the Handbook. Ms. Mitchell does not allege that the Agreement was provided to her at the same time that she was presented the Handbook or that Craftworks treated the two documents as interdependent. The Agreement provides that Craftworks and Ms. Mitchell each agree to resolve [the covered] disputes through binding arbitration before an arbitrator experienced in employment law. And nowhere in the Agreement does Craftworks retain the right to modify or revoke its half of this promise. That each party takes on reciprocal obligations is sufficient consideration to make the Agreement an enforceable contract. Craftworks's performance under the Agreement therefore is not optional, and its promise is not illusory. Taking all of this together, the Handbook advises employees of Craftworks's general practices and policies without obligating Craftworks to maintain those practices in the future. But Craftworks's right to modify, suspend, interpret, or cancel its policies does not override its preexisting, independent contractual obligations. Thus, though Craftworks may, for instance, suddenly decide to stop presenting its new hires with arbitration agreements, it still must perform under all of the arbitration agreements it has already executed including the Arbitration Agreement with Ms. Mitchell. Regardless of what the Handbook says, Craftworks is bound by its promise to arbitrate under the Arbitration Agreement, and the Agreement is enforceable. Craftworks's Litigation Conduct and the Issue of Waiver of Arbitration Rights Ms. Mitchell makes one other argument as to why the Court should not enforce the Arbitration Agreement an argument that has thus far gone unmentioned. She contends that Craftworks has waived its right to arbitration by asking this Court to strike her collective action claim and force her to proceed on an individual basis. The only question for the Court is whether Craftworks's error of initially asking for judicial action on class availability constitutes conduct that waives its right to arbitration. The Court has little trouble concluding that no waiver occurred. A party waives its right to arbitration by acting `inconsistently with the arbitration right. When determining whether a party has so acted, the inquiry is "inherently fact-bound and involves few bright-line rules. Rather, courts look at the totality of the circumstances . They assess, among other things, whether a party timely sought arbitration; whether the party now moving for arbitration engaged in litigation activity that induced the other party and `the district court to expend time and effort on disputes, the resolution of which would not' move the dispute toward arbitration; and whether the party opposing arbitration would suffer prejudice from the movant's delay in seeking arbitration. None of these considerations weigh in favor of waiver in this case. Notwithstanding its initial error regarding class availability, Craftworks still sought to compel arbitration promptly; it filed its motion to compel in place of filing an answer to Ms. Mitchell's complaint. Though its erroneous request for relief may have caused Ms. Mitchell to expend some time and effort responding in her memorandum in opposition, any such time and effort was surely minimal. And given that Craftworks has withdrawn the erroneous request, it has not caused the Court to devote time and resources to an issue that does move the dispute toward arbitration. In short, Craftworks did not substantially invoke the litigation machinery before communicating its intention to arbitrate. Thus, taking into account the totality of the circumstances, Craftworks has not waived its right to arbitration, and, for the reasons provided above, it is entitled to enforcement of the Arbitration Agreement. The Court's Authority to Compel Arbitration Outside of the District of Columbia Having concluded that an enforceable agreement to arbitrate exists, the Court is required under Section 3 of the FAA to stay all proceedings related to Ms. Mitchell's lawsuit until arbitration has completed. Under Section 4 of the FAA, the Court also has the general authority to issue an order directing the parties to proceed to arbitration in accordance with the terms of the Arbitration Agreement. But Section 4 includes an important limitation on that authority: it provides that the resulting arbitration proceedings shall be within the district in which the petition for an order directing such arbitration was filed. Here, this limitation is relevant because the Arbitration Agreement between Craftworks and Ms. Mitchell contemplates arbitration taking place outside the District of Columbia. The Agreement states that arbitration will be conducted in Denver County, Colorado or Hamilton County, Tennessee, unless otherwise mutually agreed. In other words, if the Court were to enforce the Arbitration Agreement by its terms and order arbitration in one of the designated forums, the Court would potentially exceed its statutory authority. The D.C. Circuit has not yet confirmed this concern, but multiple other courts of appeals have, holding that where parties have agreed to arbitrate in a particular forum only a district court in that forum has authority to compel arbitration under Section 4. The Court agrees that this is the correct interpretation. The relevant part of Section 4 uses mandatory language, and any other construction renders that language meaningless. A full-text copy of the District Court's October 25, 2018 Memorandum Opinion is available at https://tinyurl.com/y8ehchda from Leagle.com. VASILIKI MITCHELL, Plaintiff, represented by Nicholas A. Migliaccio -- nmigliaccio@classlawdc.com -- MIGLIACCIO & RATHOD LLP, Seth Richard Lesser , BERNSTEIN LITOWITZ BERGER & GROSSMAN, LLP, Bethany A. Hilbert , HEAD LAW FIRM, LLC, pro hac vice, Charles Andrew Head , HEAD LAW FIRM, LLC, 8730 Wilshire Boulevard, Suite 210, Beverly Hills, California 90211, pro hac vice & Jason Samuel Rathod -- jrathod@classlawdc.com -- MIGLIACCIO & RATHOD LLP. CRAFTWORKS RESTAURANTS & BREWERIES, INC., doing business as GORDON BIERSCH BREWERY RESTAURANT, Defendant, represented by Joshua B. Waxman -- arobinson@littler.com -- LITTLER MENDELSON, P.C. & Sarah Elizabeth Henninger -- lhenninger@littler.com -- LITTLER MENDELSON, P.C.. CRAWFORD & CO: Court Determines Settlement Administrator's Role --------------------------------------------------------------- Epiq, in an article for JDSupra, reports that settlement administrators often play a crucial role in reaching and finalizing class action settlements. These administrators can help efficiently manage settlements by ensuring precision and thoroughness. If a firm has not retained an administrator to help with a class action, there is a good chance that the court will appoint one. A court in Canada recently determined what obligations a class action settlement administrator has when evaluating an individual Class Member's claim. The court concluded that the settlement agreement terms will play the biggest part in establishing an administrator's role. (DePagie v Crawford & Company Inc., 2018 ABCA 326) Summary of DePagie Decision Affecting Class Action Settlement Administration The DePagie decision stems from a class action lawsuit centered on blood transfusions that transmitted Hepatitis-C to several individuals treated in Canada. The class action spanned over multiple jurisdictions for several years, yielding a number of settlements. The settlement in question listed six disease levels where compensation increased at each level. The Class Member submitted a claim seeking compensation, which the court approved in May 2010 at level 2 based on his physician's evaluation. The claimant passed away in March 2012. His son, as the estate's personal representative, asked the court for leave to sue the settlement administrator based on improper evaluation. The estate argued that the claimant should have received compensated at a level 3 and that the administrator had a duty under the settlement agreement to delve further into the claim. The chambers judge analyzed the request for leave based on whether the estate would have a "reasonable possibility of success" if the action proceeded. The judge denied the petition for leave and the estate appealed to the Court of Appeal of Alberta. The estate maintained that the court should have evaluated the petition under the "actionable wrong" test, which was a much lower standard. The appellate judge dismissed the appeal and concluded that the chambers judge applied the correct test, explaining: The "reasonable possibility of success" test is consistent with the purposes that are served by class action settlement agreements; namely certainty and finality. Pretrial settlement of class proceedings is in the public interest, as it reduces legal costs and enables efficient use of court resources. Applying a lesser test would defeat the gate-keeping function for class action settlements, the purpose of which is to maintain the integrity of settlements and ensure conclusiveness. The court also agreed with the chambers judge, who concluded that the settlement administrator fulfilled their duties under the agreement. In short, the claimant's physician was the party who was responsible under the settlement agreement for determining disease level, and the administrator was not required to challenge this qualified and complete determination or independently investigate. How This Decision Affects Future Class Action Settlement Disputes This decision will significantly affect Canadian litigators and settlement administrators who deal with class actions. In the present case, the estate pointed out that a Canadian court has never decisively determined what an administrator's duties are under settlement agreements. Even though the petition was denied, the court still offered guidance about the extent of these duties. The important takeaways are: 1. When determining whether to authorize suit against an administrator, courts should give significant weight to the underlying objective of maintaining finality for class action settlement agreements. 2. Courts should look to the text of the specific settlement agreement at issue to ascertain an administrator's duties. If the settlement agreement does not impose certain obligations on the administrator, courts should not hold them responsible for performing these additional duties. 3. Courts should continue to analyze challenges against administrators under a stricter standard so only claims with merit will be approved for further litigation. After a class action ensues, the members, parties, administrator, and court have the same goal: reaching a favorable conclusion in order to remedy any wrongdoings in a fair and just manner. Administrators are an important element to the class action process that help carry out this objective. Since there are so many moving parts in class action proceedings, it makes sense that the court would confine an administrator's duties to what the parties agreed upon in the written agreement. Placing extra duties requiring settlement administrators to essentially doubt the role of others (here, the physician) would open the floodgates for endless challenges and never provide finality for the Class Members and defendants. [GN] CREDIT PROTECTION: Court Grants Filing of Amended FDCPA Complaint ----------------------------------------------------------------- The United States District Court for the Eastern District of Pennsylvania issued an Opinion granting in part Plaintiffs' Motion to File a First Amended Complaint in the case captioned ELIZABETH McROBIE, Plaintiff, v. CREDIT PROTECTION ASSOCIATION, Defendant. No. 5:18-cv-00566. (E.D. Pa.). Plaintiff filed a Motion to File a First Amended Complaint together with a proposed Amended Complaint. Plaintiff Elizabeth McRobie alleges that Defendant Credit Protection Association sent her and similarly situated people a mailer that violated the Fair Debt Collection Practices Act (FDCPA) in numerous ways. The proposed Amended Complaint adds additional factual allegations learned during discovery and includes two new counts not present in the original Complaint that allege violations of two additional provisions of the FDCPA. Additionally, the proposed Amended Complaint contains a narrowed class definition which restricts the class membership to residents of Pennsylvania, New Jersey, or Delaware. Federal Rule of Civil Procedure 15 governs amendment of pleading. Under Rule 15(a), a court should grant a party's motion for leave to amend where justice so requires. In determining if justice requires that the court allow the amendment, the court may consider undue delay, bad faith, prejudice to the opposing party, and futility. Undue Delay/Bad Faith The Defendant argues that the Plaintiff's proposed amendment is unduly delayed because Plaintiff moves to add claims that she could have brought at the beginning of this litigation. However, Plaintiff has sought leave to amend her complaint within the window this Court set to allow amendment of pleadings. Thus, her motion for leave to amend is not unduly delayed. Nor has the Defendant shown any evidence of bad faith or improper motive on the Plaintiff's part. Although the Defendant argues that the Plaintiff knew of all the facts underlying her proposed amended claims at the outset of the litigation, the Plaintiff explains that her new claims only became viable after certain details became clear during discovery. Specifically, the Plaintiff states that she confirmed during discovery that the numerical code displayed on the mailer corresponded to the creditor on whose behalf the Defendant sent the particular mailer and that the Defendant did not send the mailer on behalf of any government entity. This explanation is at least plausible, and previous courts have accepted similar explanations for delayed requests for leave to amend. This Court can discern no improper motive on the Plaintiff's part that would justify denying leave to amend. Prejudice to Defendant Prejudice to the non-moving party is the touchstone for the denial of an amendment. When evaluating prejudice, the Third Circuit considers whether amendment would impair the non-moving party's ability to present its case. Specifically, courts consider whether the amendment would force the opponent to expend significant additional resources to conduct discovery and prepare for trial, as well as whether it would significantly delay resolution of the action. Defendant offers no argument as to how amended pleadings would impair its ability to present its case, nor can this Court discern any way that amendment would prejudice the Defendant. This factor favors granting leave to amend. Futility To state an FDCPA claim, a plaintiff must allege that (1) she is a consumer, (2) the defendant is a debt collector, (3) the defendant's challenged practice involves an attempt to collect a debt as the FDCPA defines it, and (4) the defendant has violated a provision of the FDCPA in attempting to collect the debt. The Defendant argues that the Plaintiff has not alleged sufficiently that the Defendant violated the FDCPA and therefore has not satisfied the fourth element. The Plaintiff responds that she has stated claims for violations of two separate provisions of the FDCPA. Amendment is futile with respect to Count III of the Plaintiff's proposed Amended Complaint because she has not stated a claim under Section 1692e(9). Section 1692e prohibits a debt collector from using any false, deceptive, or misleading representation or means in connection with the collection of a debt and lists specific examples of prohibited conduct. Among these examples is the use or distribution of any written communication which simulates or is falsely represented to be a document authorized, issued, or approved by any court, official, or agency of the United States or any State, or which creates a false impression as to its source, authorization, or approval. In Count III of her proposed Amended Complaint, Plaintiff claims that Defendant violated this section by sending Plaintiff a mailer with OFFICIAL NOTICE written on the front exterior in red, white, and blue font, together with the phrase IMPORTANT INFORMATION ENCLOSED. Plaintiff contends that this language and font simulates and/or falsely represents that the mailers were authorized, issued, or approved by a court, official, or agency of the United States or a State. By contrast, the mailer Plaintiff received does not look like a government document. Although it bears the designation Official Notice and uses red, white, and blue font, the mailer contains no features that suggest it was sent by a government agency or that resemble official court documents. Nor does it suggest in any way that Defendant sent it on behalf of a specific government entity. Moreover, the mailer bears the Defendant's logo, a return address listing the return addressee as Credit Protection Association, LP and a logo stating that Defendant is a member of the International Association of Credit and Collections Professionals. Despite the mailer's patriotic color scheme, even the least sophisticated consumer would recognize it as coming from a collections agency and not the government. Accordingly, the Plaintiff's proposed Amended Complaint fails to state a claim under Section 1692e(9). Amendment is futile and will be denied with respect to Count III of Plaintiff's proposed Amended Complaint. Amendment is not futile with respect to Count II of Plaintiff's proposed Amended Complaint because Plaintiff has stated a claim under Section 1692f(8). The Plaintiff also seeks leave to add a claim under Section 1692f(8), which prohibits using any language or symbol, other than the debt collector's address, on any envelope when communicating with a consumer by use of the mails or by telegram. Plaintiff's proposed Amended Complaint asserts that Defendant violated this section by including on the front of its mailer a numerical code that corresponds to the creditor on whose behalf Defendant sought to collect the debt. The Defendant argues that the numerical code on the mailer in this case is benign. The Defendant contends that the numeric code does not disclose Plaintiff's financial predicament or invade her privacy and emphasizes that a third party viewing the mailer would not understand the numeric code or conclude that the mailer was a debt collection letter. Nor does Defendant offer a persuasive reason to depart from Douglass. It is doubtful whether, even if the Third Circuit Court of Appeals did adopt a benign language exception, it would sweep broadly enough to include the text at issue here. Indeed, Douglass recognized that courts should not interpret Section 1692f(8) to create absurd results. 765 F.3d at 306 n.9. The Supreme Court has long recognized the canon against absurdities as a necessary accommodation of the fact that laws operate in the real world, and has cautioned courts not to adopt statutory constructions that would put a stop to the ordinary business of life. If a literal construction of the words of a statute be absurd, the act must be so construed as to avoid the absurdity. The court must restrain the words. However, courts should employ the canon only where the result of applying the plain language would be, in a genuine sense, absurd, i.e., where it is quite impossible that Congress could have intended the result and where the alleged absurdity is so clear as to be obvious to most anyone. This Court, too, can only construe the law, and is bound by the language of the statue and the Third Circuit's decision in Douglass. Applying Section 1692f(8) in this case does not yield an absurd result, so this Court will enforce the plain language of the statute, which prohibits Defendant from printing the numerical code. Plaintiff has stated a FDCPA claim under Section 1692f(8), so amendment is not futile and will be permitted with respect to Count II of the proposed Amended Complaint. A full-text copy of the District Court's October 29, 2018 Opinion is available at https://tinyurl.com/y8x5n7mq from Leagle.com. ELIZABETH MCROBIE, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED, Plaintiff, represented by JOSHUA MARKOVITS , LEMBERG LAW LLC & SERGEI LEMBERG, LEMBERG LAW LLC. CREDIT PROTECTION ASSOCIATION, Defendant, represented by JUSTIN M. PENN -- jpenn@hinshawlaw.com -- HINSHAW & CULBERTSON LLP, ERICK V. VIOLAGO -- eviolago@defensecounsel.com -- MINTZER SAROWITZ ZERIS LEDVA & MEYERS, LLP,GEORGE W. VOKOLOS -- gvokolos@defensecounsel.com -- MINTZER SAROWITZ ZERIS LEDVA & MEYERS & JASON G. WEHRLE -- jwehrle@defensecounsel.com -- MINTZER SAROWITZ ZERIS LEDVA & MEYERS, LLP. DEVON ENERGY: 5th Cir. Flips Class Certification in Seeligson Suit ------------------------------------------------------------------ In the case, HENRY SEELIGSON; JOHN M. SEELIGSON; SUZANNE SEELIGSON NASH; SHERRI PILCHER, Plaintiffs-Appellees, v. DEVON ENERGY PRODUCTION COMPANY, L.P., Defendant-Appellant, Case No. 17-10320 (5th Cir.), the U.S. Court of Appeals for the Fifth Circuit reversed the district court's order granting the Plaintiffs' motion for class certification. The Plaintiffs-Appellees in the class action case are royalty owners who allege that Defendant-Appellant, Devon Energy Production Company, L.P. ("DEPCO"), breached its royalty obligations by violating the duty to market implied in the class members' mineral leases. According to the Plaintiffs, DEPCO breached this duty by selling the raw, unprocessed gas to its corporate affiliate at the wellheads at a price artificially reduced by an unreasonably high processing fee. They aver that DEPCO then passed this processing fee on to the royalty owners. The Plaintiffs sought to certify a class comprising royalty owners who claim that their royalty payments were reduced by DEPCO's pricing scheme. The district court held an evidentiary hearing, then certified the Class of all person or entities who, between Jan. 1, 2008 and Feb. 28, 2014, (i) are or were royalty owners in Texas wells producing natural gas that was processed through the Bridgeport Gas Processing Plant by Devon Gas Services, LP (DGS); (ii) received royalties from Devon Production Company, L.P. (DEPCO) on such gas; and (iii) had oil and gas leases that were on one of the specific forms. DEPCO now appeals the district court's certification decision. The Appellate Court finds that the district court did not abuse its discretion in concluding that the Plaintiffs satisfied Federal Rule of Civil Procedure 23's commonality requirement. Because the court failed to address whether the applicable statute of limitations and potential tolling questions would raise individual issues, it abused its discretion in certifying the class as written. The Fifth Circuit therefore reversed and remanded for further proceedings consistent with its Opinion. A full-text copy of the Court's Oct. 16, 2018 Order is available at https://is.gd/DaLPvG from Leagle.com. Craig A. Haynes -- Craig.Haynes@tklaw.com -- for Defendant-Appellant. George L. McWilliams, for Plaintiff-Appellee. Jeffrey Charles King, for Plaintiff-Appellee. Pervis Jefferson Ballew, Jr. -- Jeff.Ballew@tklaw.com -- for Defendant-Appellant. Brad E. Seidel, for Plaintiff-Appellee. Richard Barrett Phillips, Jr., for Defendant-Appellant. David J. Drez, III -- david.drez@wickphillips.com -- for Plaintiff-Appellee. Edward W. Ciolko, for Plaintiff-Appellee. Geoffrey C. Jarvis, for Plaintiff-Appellee. Elizabeth L. Tiblets, for Plaintiff-Appellee. Julie Christine Abernethy -- Julie.Abernethy@tklaw.com -- for Defendant-Appellant. Britton Dale McClung, for Plaintiff-Appellee. Joshua L. Hedrick, for Plaintiff-Appellee. Donald Mattson Keil -- mkeil@kglawfirm.com -- for Plaintiff-Appellee. Brian L. Cramer -- brian@mroklaw.com -- for Plaintiff-Appellee. Matthew Tyler Shoop , for Plaintiff-Appellee. Melissa L. Troutner , for Plaintiff-Appellee. DJ KHALED: Faces Class Suit as Endorser of Crypto Scam ------------------------------------------------------ XBT Network reports that according to news published by TMZ, DJ Khaled and Floyd Mayweather face a class action lawsuit resulting from their role as high-profile endorsers of the multi-million dollar crypto scam. Both celebrities were on the forefront of trumping up support for the coin on social media, allegedly taking advantage of their massive influence and millions of fans to get people investing in the token sale. At the time of the 2017 ICO, DJ Khaled (in a post that has since been deleted shown below) reached out to about 12 million Instagram fans and referred to the Centra ICO as a "game changer." In a September tweet, DJ Khaled touted Centra's debit card and wallet app, writing on Instagram that Centra Card was the"ultimate winner in Cryptocurrency debit cards." Mayweather, then an undisputed boxing champion, advertised Centra Coin on Twitter and Instagram. He told about 8 million of his Twitter followers to "get" the token before missing out. He wrote: "Centra's ICO starts in a few hours. Get yours before they sell out, I got mine." The U.S Securities and Exchange Commission (SEC) then issued a warning to celebrities from endorsing ICOs, saying that such actions could be liable for court action if deemed "unlawful." The SEC said at the time that ICO endorsements by celebrities could violate federal securities laws where those involved failed to disclose any arrangements regarding the nature, source, and amount of money paid as compensation. CENTRA TECH - A CRYPTO SCAM The class-action lawsuit follows on an earlier indictment where the founders Sohrab Sharma and Robert Farkas faced charges of committing securities fraud, wire fraud, and intentionally misleading investors. The SEC accusation against the ICO team was that its promoters touted "nonexistent relationships" between the ICO and some well-known financial institutions. These actions were calculated towards hoodwinking the public. While promoting Centra before the token sale, the founders had claimed partnerships were in place with both Visa and Mastercard, and that they would soon launch a crypto debit card. Sharma had reportedly said at the time: "Internationally we currently have our license with Mastercard to service international clients; domestically we have a Visa partnership, so we're able to issue Visa cards domestically." Visa later refuted the claims, going on to issue a cease-and-desist letter to the startup's founders. In its filing, the SEC said that both Sharma and Farkas were "reckless" or "negligent," essentially saying they knew there was no relationship between their ICO and either of Visa or Mastercard. The Centra Tech team had even put up a fake front, appointing a non-existent CEO to lend the project more credibility. In June, a magistrate's report that declared the CTR token was a securities token under federal laws. Investors in the ICO filed a lawsuit against the crypto platform, claiming that Centra Tech had violated federal securities laws. The lawsuit sought compensation for the losses, which at the time was over $67 million. The Centra Tech founders face a jail term for the fraud, while the lawsuit's details indicate that investors want DJ Khaled and Floyd Mayweather to pay for damages. CENTRA TECH REFUTES FRAUD CHARGES IN AUGUST BLOG POST In a post titled Dear Centra Community -- Let the Truth be known, the author claims that the SEC's charges were bogus: "We allege, think, and/orbelieve that the comments from SEC Chief of Enforcement, Robert Cohen, regarding our technology are down right wrong. " The author explains that Centra was, in fact, working with the SEC and intended to refund ICO investors. The company was ordered by the SEC that they couldn't spend the funds raised during the ICO, which they claim they didn't. With regards to the false claims about fake contracts with credit card processors, the company explained: "One processor who was supposed to issue our branded Visa cards domestically, and one processor that was going to issue our white-label MasterCard worldwide (the black cards that ICO contributors have gotten since Dec 2017..that actually worked unlike the false statements made). The processor we had to issue our branded US based Visa cards had told us since on or around August of 2017 we were "all good to go," sent us contracts and term sheets, etc." We will keep monitoring the situation and the outcome of the class-action lawsuit against the two high-profile celebrities. [GN] EDISON INTERNATIONAL: Appeal in 401(k) Plan-Related Suit Ongoing ---------------------------------------------------------------- Edison International said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 30, 2018, for the quarterly period ended September 30, 2018, that the plaintiff in the Edison 401(k)Savings Plan-related suit has appealed the judgment of the federal court. In November 2015, a purported class action lawsuit was filed in federal court against Edison International, its then Chief Executive Officer and its Treasurer by an Edison International employee, alleging claims under the Employee Retirement Income Security Act. The complaint purports to be filed on behalf of a class of Edison International employees who were participants in the Edison 401(k) Savings Plan and invested in the Edison International Stock Fund between March 27, 2014 and June 24, 2015. The complaint alleges that defendants breached their fiduciary duties because they knew or should have known that investment in the Edison International Stock Fund was imprudent because the price of Edison International common stock was artificially inflated due to Edison International's alleged failure to disclose certain ex parte communications with California Public Utilities Commission (CPUC) decision-makers related to the San Onofre OII. In July 2016, the federal court granted the defendants' motion to dismiss the lawsuit with an opportunity for the plaintiff to amend her complaint. Plaintiff filed an amended complaint in July 2016, which dismissed Edison International as a named defendant and the remaining defendants filed a motion to dismiss in August 2016. In June 2017, the federal court again granted defendants' motion to dismiss the lawsuit with an opportunity for the plaintiff to amend her complaint. Plaintiff filed another amended complaint in July 2017. Defendants filed a motion to dismiss the amended complaint and, in May 2018, the federal court again granted defendants' motion to dismiss the lawsuit with an opportunity for the plaintiff to amend her complaint. Plaintiff elected not to amend her complaint and the federal court granted judgment in favor of the defendants in August 2018. Plaintiff has appealed the judgment. Edison International, through its subsidiaries, engages in the generation, transmission, and distribution of electricity in the United States. It generates electricity through hydroelectric, diesel/liquid petroleum gas, natural gas, nuclear, and photovoltaic sources. Edison International was founded in 1886 and is based in Rosemead, California. EDISON INTERNATIONAL: Appeal in Securities Class Suit Underway -------------------------------------------------------------- Edison International said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 30, 2018, for the quarterly period ended September 30, 2018, that the plaintiff in the purported securities class suit has appealed the dismissal of its complaint. In July 2015, a purported securities class action lawsuit was filed in federal court against Edison International, its then Chief Executive Officer and its then Chief Financial Officer. The complaint was later amended to include Southern California Edison Company's (SCE's) former President as a defendant. The lawsuit alleges that the defendants violated the securities laws by failing to disclose that Edison International had ex parte contacts with California Public Utilities Commission (CPUC) decision-makers regarding the San Onofre OII that were either unreported or more extensive than initially reported. The complaint covers a class of persons who acquired Edison International common stock between March 21, 2014 and August 10, 2015. In September 2016, the federal court granted defendants' motion to dismiss the complaint, with an opportunity for plaintiff to amend the complaint. Plaintiff filed a second amended complaint in October 2016, which the federal court dismissed again with an opportunity for the plaintiff to amend the complaint. Plaintiff filed a third amended complaint in May 2017. In March 2018, the federal court dismissed the third amended complaint with prejudice and entered judgment in defendants' favor. Plaintiff has appealed the dismissal. Edison International, through its subsidiaries, engages in the generation, transmission, and distribution of electricity in the United States. It generates electricity through hydroelectric, diesel/liquid petroleum gas, natural gas, nuclear, and photovoltaic sources. Edison International was founded in 1886 and is based in Rosemead, California. EDISON INTERNATIONAL: Faces 102 Suits Related to Thomas Fire ------------------------------------------------------------ Edison International said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 30, 2018, for the quarterly period ended September 30, 2018, that the company, together with Southern California Edison Company (SCE), is facing 102 lawsuits related to Thomas Fire. As of October 26, 2018, Southern California Edison Company (SCE) was aware of at least 102 lawsuits, representing approximately 2,000 plaintiffs, related to the Thomas Fire naming SCE as a defendant. Thirty-eight of these lawsuits also name Edison International as a defendant and at least four of the lawsuits were filed as purported class actions. The lawsuits, which have been filed in the superior courts of Ventura, Santa Barbara and Los Angeles Counties allege, among other things, negligence, inverse condemnation, trespass, private nuisance, and violations of the public utilities and health and safety codes. By order of the Chair of the California Judicial Council, the lawsuits have been coordinated in the Los Angeles Superior Court. Edison International, through its subsidiaries, engages in the generation, transmission, and distribution of electricity in the United States. It generates electricity through hydroelectric, diesel/liquid petroleum gas, natural gas, nuclear, and photovoltaic sources. Edison International was founded in 1886 and is based in Rosemead, California. EMERY FEDERAL: Court Approves $9MM Settlement in Palombaro Suit --------------------------------------------------------------- The United States District Court for the Southern District of Ohio, Western Division, issued an Order granting Plaintiffs' Motion for Final Approval of Emery Federal Credit Union Class Action Settlement in the case captioned Frank A. and Shelly Palombaro, Jr., Plaintiffs, v. Emery Federal Credit Union, Defendant. Case No. 1:15-cv-792. (S.D.Ohio). This case involves an alleged mortgage kickback scheme in which Genuine Title, LLC (Genuine Title) by itself and through sham companies, provided cash payments, marketing materials, and other benefits to mortgage brokers employed by Emery Federal Credit Union (Emery). In return, the Emery mortgage brokers referred clients to Genuine Title for title and settlement services. This scheme is alleged to violate the Real Estate Settlement Procedures Act (RESPA) Final Approval of the Settlement Agreement Settlement Agreement Terms The Settlement Agreement establishes a $9,000,000 common fund of which the Emery Class will receive a proportionate share after the deduction for payment of a settlement administrator, payment of class counsel's costs, expenses, and fees, and payment of class representatives' service awards. Class counsel may petition the court for approval of attorneys' fees and expenses not to exceed 30% of the common fund and for expenses actually incurred, and class representatives may petition the Court for service awards not to exceed $5,000 per award. Plaintiffs estimate that taking all the deductions into consideration, class members are projected to recover approximately $1,160 per loan. Final Approval Under Federal Rule of Civil Procedure 23(e) In determining whether the terms of the settlement are fair, reasonable, and adequate under Rule 23, the Court considers several factors, including: (1) the risk of fraud or collusion; (2) the complexity, expense, and likely duration of the litigation; (3) the amount of discovery engaged in by the parties; (4) the likelihood of success on the merits; (5) the opinions of class counsel and class representatives; (6) the reaction of absent class members; and (7) the public interest. The Court finds that all of these criteria are met here, for the reasons set forth by class counsel in their brief and as stated on the record at the final approval hearing. First, the risk of fraud or collusion is low, as the parties' negotiations were at arms-length and preceded by adversarial litigation, including disputed briefing over dismissal and class certification. Plaintiffs spent months investigating Genuine Title's practices and developing their claims through extensive discovery practice. Settlement was reached after a full-day conference with Magistrate Judge Stephanie K. Bowman, which reflect the arms-length nature of such negotiations. Second, the complexity, expense and likely duration of the underlying litigation supports approval as well. Taking this case to trial presented serious risks to both class members and Emery. Discovery and motion practice have been contentious, and Emery raised limitations and other affirmative defenses. In addition, both parties faced the complexity and logistical difficulty of trying a 5,000-member class action to a jury. Emery's petition to the Sixth Circuit also was pending at the time the parties reached settlement. Plaintiffs' expert advised that if Plaintiffs succeeded on appeal and recovered a judgment greater than the settlement amount, such a judgment would have likely resulted in Emery's involuntary liquidation by its regulator, the National Credit Union Administration (NCUA), and rendered the judgment uncollectible. Thus, this Settlement Agreement secures a tangible recovery while avoiding the significant regulatory risk Plaintiffs faced if they succeeded at trial. In addition, the settlement avoids the additional fees, costs, and delay of an appeal to the Sixth Circuit, which likely would have added years to recovery. Third, the discovery engaged in by the parties to date has been extensive and weighs in favor of final approval. Discovery involved tremendous efforts to uncover the size and scope of the alleged scheme, which was detailed at length at the final fairness hearing. Class counsel represent that they served 39 third-party records subpoenas, reviewed tens of thousands of bank records and loan documents, conducted thirteen depositions, and conducted land records research across more than twenty-five states. This discovery was instrumental in allowing Plaintiffs to evaluate the strengths and weaknesses of the claims and defenses to make an informed decision regarding settlement. Fourth, the settlement provides relief to class members and eliminates the risks of trial. Although success at trial could have yielded treble damages, class members faced a risk of not being able to recover any potential judgment, as previously noted. Fifth, class counsel and class representatives find the settlement to be fair and favorable, which weighs in favor of approval. Sixth, there have been no objections to the settlement, and one exclusion request has been submitted by Dean and Dolores Bakken. The class members on 5,289 out of 5,290 class loans have sought to participate in the settlement, which the Court interprets as demonstrating satisfaction among class members. Thus, factors four, five, and six weigh in favor of approval. Finally, seventh, the settlement serves the public interest by ensuring a real recovery to the maximum number of affected consumers, conserving resources of the parties and the Court, eliminating the risk of non-recovery, and protecting consumers from the harm of unnecessarily high settlement charges and abusive practices. This factor, too, weighs in favor of approval. In all, the Court is satisfied that the settlement is certainly fair, reasonable, and adequate under Rule 23. Notice and Objections The Court concludes that the settlement administrator has timely completed the notice plan described in the Settlement Agreement by the timely mailing of the Court-approved mailed notice to the members of the Emery Class and by establishing the settlement website. Further, Emery has complied with 28 U.S.C. Section 1715 and Section 17.2 of the Settlement Agreement by sending a Notice of Proposed Class Action Settlement to all required agencies under the Class Action Fairness Act, and none of the notice recipients have filed objections to the settlement. A full-text copy of the District Court's October 25, 2018 Order is available at https://tinyurl.com/yalro9ww from Leagle.com. Edward J. Fangman, Vickie Fangman, Damon M. Oliver, Betty M. Howard, Clayton J. Anthony, Janice M. Manuel, Eric L. Haynes, Joseph J. Quinn, Deloris F. Woods, Jameson Cooper, Katherine Cooper, Geraldine R. Walters, Rose A. Lease, James Pipp, Dana Pipp, Lawrence Crupi, Concetta Crupi, Charles Milburn, Frank Cherry, Sammie Cherry, Helen L. Householder, Barbara J. Boyd, Preston Johnson, Beatrice Johnson, Gerald Jones, Ann Jones, John Mahoney, Tinna Mahoney, Patricia Gibson, Bruce Eisenstein, Margaret Eisenstein, Claude Monegeon, Carol J. Shaw, Lusetha Rolle, Patricia M. Marshall, Ruby B. Coggins, John H. Reinheimer, Jamie B. Reinheimer, Jill Monegeon & Gerald F. Coggins, Plaintiffs, represented by Gregory Michael Utter -- gmutter@kmklaw.com -- Keating Muething & Klekamp, Melissa L. English -- menglish@sgs-law.com -- pro hac vice, Michael Paul Smith -- mpsmith@sgs-law.com -- Smith Gildea and Schmidt LLC, pro hac vice, Sarah A. Zadrozny -- szadrozny@sgs-law.com -- Smith, Gildea & Schmidt, LLC, pro hac vice, Timothy Francis Maloney -- tmaloney@jgllaw.com -- Joseph Greenwald and Laake PA, pro hac vice & Veronica Byam Nannis -- vnannis@jgllaw.com -- Joseph Greenwald and Laake PA, pro hac vice. Frank A. Palombaro, Jr., David Alvarado, Shelly Palombaro & Melinda Alvarado, Plaintiffs, represented by Gregory Michael Utter , Keating Muething & Klekamp, Melissa L. English , pro hac vice, Melissa Schaub Matthews , Keating Muething & Klekamp, PLL, Michael Paul Smith , Smith Gildea and Schmidt LLC, pro hac vice, Sarah A. Zadrozny , Smith, Gildea & Schmidt, LLC, pro hac vice, Timothy Francis Maloney , Joseph Greenwald and Laake PA, pro hac vice &Veronica Byam Nannis , Joseph Greenwald and Laake PA, pro hac vice. Emery Federal Credit Union, Defendant, represented by Carolyn Ann Taggart -- ctaggart@porterwright.com -- Porter Wright Morris & Arthur, LLP, David M. Souders -- souders@thewbkfirm.com -- Weiner Brodsky Kider PC, pro hac vice, Jeffrey Paul Blackwood -- blackwood@thewbkfirm.com -- Weiner Brodsky Kider PC, pro hac vice & Michael Yaakov Kieval -- brodsky@thewbkfirm.com -- Weiner Brodsky Kider PC, pro hac vice. Jennifer L McAlpin, Defendant, represented by Gregory Michael Utter , Keating Muething & Klekamp. EXPRESS SCRIPTS: Awaits Court Decision on Plaintiffs' Appeal ------------------------------------------------------------ Express Scripts Holding 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 is awaiting the court's decision in the plaintiffs' appeal in the, In re Express Scripts/Anthem ERISA Litigation (consolidating John Doe One and John Doe Two v. Express Scripts, Inc. and Karen Burnett, Brendan Farrell, and Robert Shullich v. Express Scripts, Inc. and Anthem, Inc.). Plaintiffs filed a Second Amended Consolidated Class Action Complaint on behalf of health plan beneficiaries who are enrolled in health care plans that are insured or administered by Anthem. Plaintiffs allege that the Company and Anthem breached fiduciary duties and otherwise violated their legal obligations under ERISA, that the Company engaged in mail fraud, wire fraud and other racketeering activity through its invoicing system with Anthem, that the Company breached its contract with Anthem, that plaintiffs are entitled to equitable relief under theories including unjust enrichment, that the Company violated unfair and deceptive trade practices statutes, that Anthem breached the covenant of good faith and fair dealing implied in health plans, and that ESI violated the anti-discrimination provisions of the Affordable Care Act. Plaintiffs adopt many of Anthem's Allegations in support of their claim. Plaintiffs seek compensatory damages, declaratory relief, equitable relief and attorneys' fees and costs. The Company's motion to dismiss was granted on January 5, 2018. On April 11, 2018, plaintiffs filed an appellate brief. On May 2, 2018, an amicus brief in support of appellants was filed by the American Association of Retired Persons and National Employment Lawyers Association. On May 30, 2018, appellees' briefs were filed. On June 20, 2018, an amicus brief in support of appellees was filed by Pharmaceutical Care Management Association, Association of Health Insurance Plans, and the Chamber of Commerce. On July 5, 2018, appellants filed a reply brief, and the appeal is now fully briefed. Express Scripts said, "The court held oral argument on October 19, 2018 and we await the court's decision." Express Scripts Holding Company operates as a pharmacy benefit management (PBM) company in the United States and Canada. Express Scripts Holding Company was founded in 1986 and is headquartered in Saint Louis, Missouri. EXPRESS SCRIPTS: Bewley Suit Underway in District of New Jersey --------------------------------------------------------------- Express Scripts Holding 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 court granted defendants' motion to transfer the Michael Bewley, et al. v. CVS Health Corporation, et al. action to the United States District Court for the District of New Jersey, where it remains pending. Plaintiffs allege, inter alia, that the defendants entered into "exclusionary" agreements that granted exclusive formulary placement for certain glucagon products in return for higher rebate payments. The complaint alleges that these agreements had the effect of driving up the costs of such products for the putative class members and violated Sections 1 and 3 of the Sherman Act, RICO, ERISA and the competition and consumer protection laws of various states, U.S. territories and the District of Columbia. Plaintiffs seek treble damages, equitable relief and attorneys' fees and costs. On November 7, 2017, the court granted defendants' motion to transfer this action to the United States District Court for the District of New Jersey. No further updates were provided in the Company's SEC report. Express Scripts Holding Company operates as a pharmacy benefit management (PBM) company in the United States and Canada. Express Scripts Holding Company was founded in 1986 and is headquartered in Saint Louis, Missouri. EXPRESS SCRIPTS: Claims in EpiPen ERISA Suit Narrowed ----------------------------------------------------- Express Scripts Holding 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 defendants' motion to dismiss in the case, In re: EpiPen ERISA Litigation, has been granted in part and denied in part. Plaintiffs filed a consolidated class action complaint on April 2, 2018, alleging that defendants violated legal obligations under The Employee Retirement Income Security Act of 1974 (ERISA) by negotiating increasingly large rebates from Mylan, which allegedly caused an increase in the price of EpiPen products. Plaintiffs further allege that defendants retained a significant portion of rebates, rather than passing them on to class members (who are participants in, or beneficiaries of, health insurance plans governed by ERISA who purchased EpiPen products). On June 1, 2018, defendants filed a motion to dismiss, which was granted in part and denied in part on October 26, 2018. Express Scripts Holding Company operates as a pharmacy benefit management (PBM) company in the United States and Canada. Express Scripts Holding Company was founded in 1986 and is headquartered in Saint Louis, Missouri. EXPRESS SCRIPTS: Continues to Defend Beeman Suit ------------------------------------------------ Express Scripts Holding 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 a class action suit entitled, Jerry Beeman, et al. v. Caremark, et al. Plaintiffs allege that the Company and the other defendants failed to comply with statutory obligations to provide California clients with the results of a bi-annual survey of retail drug prices. On November 14, 2016, the district court denied plaintiffs' motion for class certification, holding that the proposed class representatives and counsel were inadequate to represent a class. On October 6, 2017, defendants moved for sanctions against plaintiffs for destroying evidence, requesting the case be dismissed with prejudice, which the court granted on January 4, 2018. On August 21, 2018, plaintiffs filed an appellate brief. On October 22, 2018, appellees’ brief was filed. Express Scripts Holding Company operates as a pharmacy benefit management (PBM) company in the United States and Canada. Express Scripts Holding Company was founded in 1986 and is headquartered in Saint Louis, Missouri. EXPRESS SCRIPTS: Multiple Suits Related to Cigna Merger Underway ---------------------------------------------------------------- Express Scripts Holding 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 is facing securities class actions suits related to its merger with Cigna Corporation. On March 8, 2018, the company entered into an Agreement and Plan of Merger, as amended by Amendment No. 1, dated as of June 27, 2018, and as it may be further amended from time to time (the "Merger Agreement"), with Cigna Corporation ("Cigna") and certain subsidiaries of Cigna whereby Cigna will acquire Express Scripts Holding Company ("Express Scripts" or the "Company") in a cash and stock transaction valued on announcement at approximately $67.0 billion, including Cigna's assumption of approximately $15.0 billion in Express Scripts debt. The company is the subject of shareholder securities cases relating to the proposed merger with Cigna, including: Abraham Neufeld, et al, v. Express Scripts Holding Company, et al.; Lawrence Zucker, et al. v. Express Scripts Holding Company, et al.; Walter Stern, et al. v. Express Scripts Holding Company, et al.; Kurt Wilson, et al. v. Express Scripts Holding Company, et al.; Phillip Buckingham, et al. v. Express Scripts Holding Company, et al.; and Robert Wolfe, et al. v. Express Scripts Holding Company, et al. Plaintiffs filed putative class action complaints against Express Scripts and the members of its board of directors alleging the registration statements filed in connection with the mergers of Express Scripts and Cigna omitted material information in violation of Sections 14(a) and 20(a) of the Exchange Act, rendering the registration statements false and misleading. Among other remedies, the complaints seek to enjoin the Express Scripts special meeting and the closing of the mergers, as well as damages, costs and attorneys' fees. On August 29, 2018, plaintiff in the Stern action filed a notice of voluntary dismissal, and the court closed the case on August 30, 2018. On October 17, 2018, plaintiff in the Wilson action filed a notice of voluntary dismissal, and the court closed the case on October 17, 2018. Express Scripts Holding Company operates as a pharmacy benefit management (PBM) company in the United States and Canada. Express Scripts Holding Company was founded in 1986 and is headquartered in Saint Louis, Missouri. EXPRESS SCRIPTS: Prescott Suit Underway in Dist. of New Jersey -------------------------------------------------------------- Express Scripts Holding 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 court has granted the motion of certain defendants, including the Company, to transfer the Jeanine Prescott, et al. v. CVS Health Corporation, et al. action to the United States District Court for the District of New Jersey, where it remains pending. Plaintiffs allege, inter alia, that the defendants entered into "exclusionary" agreements that granted exclusive formulary placement for certain blood glucose test strips in return for higher rebate payments. The complaint alleges that these agreements had the effect of driving up the costs of such test strips for the putative class members and violated RICO, ERISA and the competition and consumer protection laws of various states. Plaintiffs seek treble damages, equitable relief and attorneys' fees and costs. On November 28, 2017, the court granted the motion of certain defendants, including the Company, to transfer this action to the United States District Court for the District of New Jersey. No further updates were provided in the Company's SEC report. Express Scripts Holding Company operates as a pharmacy benefit management (PBM) company in the United States and Canada. Express Scripts Holding Company was founded in 1986 and is headquartered in Saint Louis, Missouri. EXPRESS SCRIPTS: Still Defends Securities Class Suit ---------------------------------------------------- Express Scripts Holding 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 a securities class action suit entitled, In re Express Scripts Holding Company Securities Litigation. Plaintiff filed this putative securities class action complaint on behalf of all persons or entities that purchased or otherwise acquired the Company's publicly traded common stock between February 24, 2015 and March 21, 2016, and alleges the Company and named individuals violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 ("the Exchange Act") and Rule 10b-5 thereunder by carrying out a scheme to defraud the investing public. Plaintiff seeks compensatory damages in favor of plaintiff and other class members, attorneys' fees and costs, and equitable relief. Plaintiff adopts many of Anthem's Allegations in support of their claim. On August 1, 2017, the court granted the Company's motion to dismiss the complaint in its entirety. On August 30, 2017, Plaintiff filed an amended complaint alleging similar claims, and defendants moved to dismiss. On May 22, 2018, the court granted defendants' motion to dismiss. On September 10, 2018, plaintiffs filed an appellate brief. Express Scripts Holding Company operates as a pharmacy benefit management (PBM) company in the United States and Canada. Express Scripts Holding Company was founded in 1986 and is headquartered in Saint Louis, Missouri. F.H. CANN: Cosar Sues over Wrongful Debt Collection Practices ------------------------------------------------------------- YASIN COSAR, individually and on behalf of all others similarly situated, Plaintiff v. F.H. CANN & ASSOCIATES, INC.; and JOHN DOES 1-25, Case No. 2:18-cv-15229-WJM-MF (D.N.J., Oct. 23, 2018) seeks to stop the Defendant's unfair and unconscionable means to collect a debt. The case is assigned to Judge William J. Martini and referred to Magistrate Judge Mark Falk. F.H. Cann and Associates Inc., a receivables management company, provides account receivables and debt collection services. The company was founded in 1999 and is based in North Andover, Massachusetts. [BN] The Plaintiff is represented by: Ben A. Kaplan, Esq. 280 Prospect Ave. 6G Hackensack, NJ 07601 Telephone: (201) 803-6611 Facsimile: (866) 596-4973 E-mail: benkap232@aol.com FACEBOOK INC: Juggling GBP500,000 Fine for Analytica Scandal ------------------------------------------------------------ Nathaniel Mott, writing for Tom's Hardware, reports that Facebook brings in GBP500,000 easily. At this point, even if everyone at the company disappeared via technological rapture, its ad platform would still churn out cash. That makes the UK Information Commissioner's Office (ICO) GBP500,000 ($641,878) fine against the company over the Cambridge Analytica incident seem inconsequential, but that's actually the highest fine the regulator can levy. And on top of that, Facebook also has a class-action lawsuit on its hands. Here's a quick recap: Cambridge Analytica was revealed to have collected information about 50 million people in the U.S. by exploiting Facebook's laissez-faire data policies. This in turn raised questions about those policies and how Facebook planned to make sure researchers weren't gathering -- and using -- people's information without oversight. Regulators around the world quickly criticized Facebook over this failure. ICO announced in July that it planned to levy the maximum GBP500,000 fine against Facebook over the scandal; now it's actually issued that fine. While that may seem low, especially in light of the stricter GDPR rules that went into effect in May, the regulator noted that it issued the highest fine it could based on the previous Data Protection Act legislation. That's because the incidents that provoked the fine occurred between 2007 and 2014. Instead of retroactively applying GDPR, which would incur a much higher fine, ICO had to rely on a decade-old law. Information Commissioner Elizabeth Denham explained: "We considered these contraventions to be so serious we imposed the maximum penalty under the previous legislation. The fine would inevitably have been significantly higher under the GDPR. One of our main motivations for taking enforcement action is to drive meaningful change in how organisations handle people's personal data. . . . . Our work is continuing. There are still bigger questions to be asked and broader conversations to be had about how technology and democracy interact and whether the legal, ethical and regulatory frameworks we have in place are adequate to protect the principles on which our society is based." Class-Action Lawsuit Against Facebook But there are signs that Facebook users aren't content to wait around for regulators to manage Facebook and other companies' data practices. A class-action lawsuit filed complains that Facebook continued to track users' location via its smartphone apps and share it with advertisers even if they disabled that feature. Claiming Facebook violated the U.S. Federal Stored Communications Act, the lawsuit, in part, seeks $1,000 per violation of that act, an explanation of how affected users were impacted, destruction of user data accumulated and a commitment to not do these acts again. This is the latest in a long series of lawsuits; maybe they'll help nudge things in the direction of privacy reform. [GN] FACEBOOK INC: Wants Cambridge Analytica Class Action Tossed ----------------------------------------------------------- Wendy Davis, writing for MediaPost, reports that policy questions stemming from the Cambridge Analytica debacle, including questions concerning how Facebook explains data sharing to users, should be settled in "robust public discourse" as opposed to the courts, Facebook says. "The Cambridge Analytica events drew public attention to the policy implications of sharing data on the Internet, sparking an important and ongoing discussion about the ways in which people's data can be used (and misused)," the company writes in papers asking U.S. District Court Judge Vince Chhabria in the Northern District of California to dismiss a class-action privacy complaint . . "But Facebook's role in these events does not give rise to a viable cause of action." The social networking service adds that the broad questions raised by the lawsuit shouldn't be decided "on a piecemeal basis in courts." "The very kind of policy and social issues raised in the complaint . . . are the subject of Congressional hearings, regulatory inquiries, and robust public discourse. That is where those discussions belong," Facebook writes in its new papers, filed late on Nov. 2. The company's argument comes in a lawsuit over this year's revelations that President Trump's data consultancy, Cambridge Analytica, obtained personal information for as many as 87 million Facebook users. Cambridge Analytica, how defunct, received the data from researcher Aleksandr Kogan, who obtained the information in 2014 through the personality quiz app "thisisyourdigitallife." Only 270,000 Facebook users downloaded Kogan's app, but he was able to gather data about many of those users' contacts. In April of 2015, Facebook stopped allowing developers to access data about users' friends. But in 2014, when Kogan's app scraped the data, Facebook allowed developers to glean information about users' friends, subject to their privacy settings. Facebook's terms of service prohibited developers from sharing that information. News of Cambridge Analytica's data grab sparked an ongoing Federal Trade Commission investigation, Congressional scrutiny and a class-action privacy lawsuit on behalf of Facebook's users. Facebook is now urging Judge Chhabria to dismiss the lawsuit for numerous reasons. Among others, Facebook contends that users whose data was taken agreed to share that data with developers. "Facebook users consent to their data being shared with third-party apps and have the option to limit such sharing or turn it off entirely," the company writes. "The problem with Cambridge Analytica . . . was that the app developer, Dr. Kogan, obtained the user data (with consent) but then sold it to Cambridge Analytica in violation of Facebook's policies. And even that risk was fully disclosed." Facebook also contends that the users shouldn't be able to proceed in court because they weren't injured by the data sharing. Judge Chhabria is expected to hold a hearing on the matter in January. [GN] FIRST RATE: Fails to Pay Proper Wages, Esparza de Perez Alleges --------------------------------------------------------------- MARTHA SUSANA ESPARZA DE PEREZ, individually and on behalf of all others similarly situated, Plaintiff v. FIRST RATE STAFFING CORPORATION; SUGARFINA, INC.; and DOES 1 through 10, Defendants, Case No. 18STCV02057 (Cal. Super., Los Angeles Cty., Oct. 23, 2018) is an action against the Defendants for failure to pay minimum wages, overtime compensation, and provide accurate wage statements. The Plaintiff Esparza de Perez was employed by the Defendants as an hourly-paid, non-exempt employee. First Rate Staffing Corporation provides recruiting and staffing services for temporary positions in light industrial, distribution center, assembly, and clerical businesses in California, Arizona, and Nevada. The company was formerly known as Moosewood Acquisition Corporation and changed its name to First Rate Staffing Corporation in May 2012. First Rate Staffing Corporation was incorporated in 2011 and is based in Phoenix, Arizona. [BN] The Plaintiff is represented by: Zorik Mooradian, Esq. Haik Hacopian, Esq. MOORADIAN LAW, ARC 5023 N. Parkway Calabasas Calabasas, CA 91302 Telephone: (818) 876-9627 Facsimile: (888) 783-1030 E-mail: zorik@mooradianUiw.com haik@ni.ooradianIaw.com FORD MOTOR: Removes Payne Suit to Northern District of Ohio ----------------------------------------------------------- The Defendants in the case of Kellie Payne, individually and on behalf of all others similarly situated, Plaintiff v. Kistler Ford; and Ford Motor Company, Defendants, filed a notice to remove the lawsuit from the Court of Common Pleas of the State of Ohio, County of Lucas (Case No. G-4801-CI-020183708-000) to the U.S. District Court for the Northern District of Ohio on October 23, 2018. The clerk of court for the Northern District of Ohio assigned Case No. 3:18-cv-02451-JJH. The case is assigned to Judge Jeffrey J. Helmick. Ford Motor Company is a corporation organized and in existence under the laws of the State of Delaware with a principal place of business in Palo, Alto, California. Defendant was engaged in the business of designing, manufacturing, constructing, assembling, marketing, distributing, and selling automobiles and other motor vehicles and motor vehicle components in Fresno, County. [BN] The Plaintiff is represented by: Michael D. Portnoy, Esq. 810 West South Boundary Road Perrysburg, OH 43551 Telephone: (419) 874-2775 Facsimile: (419) 874-2777 E-mail: hawkport@aol.com The Defendants are represented by: Brianna W. Stuart, Esq. Conor A. McLaughlin, Esq. Elizabeth B. Wright, Esq. THOMPSON HINE – CLEVELAND 3900 Key Tower 127 Public Square Cleveland, OH 44114 Telephone: (216) 566-5500 Facsimile: (216) 566-5800 E-mail: brianna.stuart@thompsonhine.com conor.mclaughlin@thompsonhine.com elizabeth.wright@thompsonhine.com FOUR SEASONS: Fails to Pay Proper OT to Mechanics, Perez Claims --------------------------------------------------------------- HINBIR PEREZ, individually and on behalf of all others similarly situated, Plaintiff v. FOUR SEASONS TEMP CONTROL, INC.; and ASHER PUTTER, Defendants, Case No. 2:18-cv-05918-DRH-ARL (E.D.N.Y., Oct. 23, 2018) is an action against the Defendants for failure to pay minimum wages, overtime compensation, authorize and permit meal and rest periods, provide accurate wage statements, and reimburse necessary business expenses. The Plaintiff Perez was employed by the Defendants as mechanic from August 2004 to March 26, 2018. Four Seasons Temp Control Inc. is a privately held company in East Meadow, NY and is a single location business. The Company is engaged as air conditioning contractors. [BN] The Plaintiff is represented by: Dong Phuong V. Nguyen, Esq. Alexander T. Coleman, Esq. Michael J. Borrelli, Esq. BORRELLI & ASSOCIATES, P.L.L.C. 910 Franklin Avenue, Suite 200 Garden City, New York 11530 Telephone: (516) 248-5550 Facsimile: (516) 248-6027 FREDDIE MAC: Continues to Defend Jacobs and Hindes Suit ------------------------------------------------------- Federal Home Loan Mortgage 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 entitled, Jacobs and Hindes vs. FHFA and Treasury. This case was filed on August 17, 2015 as a putative class action lawsuit purportedly on behalf of a class of holders of preferred stock or common stock issued by Freddie Mac or Fannie Mae. The case was also filed as a shareholder derivative lawsuit, purportedly on behalf of Freddie Mac and Fannie Mae as "nominal" defendants. The complaint alleges, among other items, that the August 2012 amendment to the Purchase Agreement violated applicable state law and constituted a breach of contract, as well as a breach of covenants of good faith and fair dealing. Plaintiffs seek equitable and injunctive relief (including restitution of the monies paid by Freddie Mac and Fannie Mae to Treasury under the net worth sweep dividend), compensatory damages, attorneys' fees, costs and expenses. On November 27, 2017, the Court dismissed the case with prejudice after defendants filed a motion to dismiss. On December 21, 2017, plaintiffs filed a notice of appeal to the U.S. Court of Appeals for the Third Circuit. On September 7, 2018, the Court of Appeals heard oral argument. Federal Home Loan Mortgage Corporation operates in the secondary mortgage market in the United States. The company purchases residential mortgage loans originated by lenders, as well as invests in mortgage loans and mortgage-related securities. Federal Home Loan Mortgage Corporation was founded in 1970 and is headquartered in McLean, Virginia. FREDDIE MAC: Suit Over Preferred Stock Purchase Deal Ongoing ------------------------------------------------------------ Federal Home Loan Mortgage 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 consolidated class action suit entitled, In re Fannie Mae/Freddie Mac Senior Preferred Stock Purchase Agreement Class Action Litigations. This case is the result of the consolidation of three putative class action lawsuits: Cacciapelle and Bareiss vs. Federal National Mortgage Association, Federal Home Loan Mortgage Corporation and Federal Housing Finance Agency (FHFA), filed on July 29, 2013; American European Insurance Company vs. Federal National Mortgage Association, Federal Home Loan Mortgage Corporation and FHFA, filed on July 30, 2013; and Marneu Holdings, Co. vs. FHFA, Treasury, Federal National Mortgage Association and Federal Home Loan Mortgage Corporation, filed on September 18, 2013. (The Marneu case was also filed as a shareholder derivative lawsuit.) A consolidated amended complaint was filed in December 2013. In the consolidated amended complaint, plaintiffs allege, among other items, that the August 2012 amendment to the Purchase Agreement breached Freddie Mac's and Fannie Mae's respective contracts with the holders of junior preferred stock and common stock and the covenant of good faith and fair dealing inherent in such contracts. Plaintiffs sought unspecified damages, equitable and injunctive relief, and costs and expenses, including attorney and expert fees. The Cacciapelle and American European Insurance Company lawsuits were filed purportedly on behalf of a class of purchasers of junior preferred stock issued by Freddie Mac or Fannie Mae who held stock prior to, and as of, August 17, 2012. The Marneu lawsuit was filed purportedly on behalf of a class of purchasers of junior preferred stock and purchasers of common stock issued by Freddie Mac or Fannie Mae over a not-yet-defined period of time. No further updates were provided in the Company's SEC report. Federal Home Loan Mortgage Corporation operates in the secondary mortgage market in the United States. The company purchases residential mortgage loans originated by lenders, as well as invests in mortgage loans and mortgage-related securities. Federal Home Loan Mortgage Corporation was founded in 1970 and is headquartered in McLean, Virginia. FRITO-LAY INC: Sanchez Deal Prelim Approval Hearing Moved to Dec. 4 ------------------------------------------------------------------- In the case, ELIAZAR SANCHEZ, on behalf of himself and all others similarly situated, Plaintiff, v. FRITO-LAY, INC., Defendant, Case No. 1:14-cv-00797-DAD-BAM (E.D. Cal.), Judge Dale A. Drozd of the U.S. District Court for the Eastern District of California has issued an order extending time for the Plaintiff's filing of a motion for preliminary approval of the class action until Nov. 9, 2018, and continuing the hearing on the preliminary approval to Dec. 4, 2018. On Oct. 15, 2018, the parties filed a stipulation to extend time for the Plaintiff's filing of a motion for preliminary approval of the class action. The Judge notes that it was almost 16 months ago that the Plaintiff's renewed motion for preliminary approval of class action settlement and conditional class certification was denied. Accordingly, no further extensions of time will be granted for this purpose absent a compelling showing of good cause. A full-text copy of the Court's Oct. 16, 2018 Order is available at https://is.gd/kkdYg2 from Leagle.com. Eliazar Sanchez, on behalf of himself and all others similarly situated, Plaintiff, represented by Brian D. Chase -- bchase@bisnarchase.com -- Bisnar Chase, LLP & Jerusalem F. Beligan -- jbeligan@bisnarchase.com -- Bisnar Chase, LLP. Frito-Lay, Inc., Defendant, represented by Samantha D. Hardy -- shardy@sheppardmullin.com -- Mullin Richter & Hampton LLP, Ashley Teiko Hirano -- ahirano@sheppardmullin.com -- Sheppard Mullin Richter & Hampton LLP & Daniel Francisco De La Cruz -- ddelacruz@sheppardmullin.com -- Sheppard Mullin Richter & Hampton LLP. GENERAL ELECTRIC: Bid to Dismiss Mahar Class Suit Underway ---------------------------------------------------------- General Electric Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 30, 2018, for the quarterly period ended September 30, 2018, that the company has filed a motion to dismiss a putative class action suit filed by Kevin Mahar. In July 2018, an additional putative class action (the Mahar case) was filed in New York state court naming as defendants GE, Jeffrey R. Immelt, Jeffrey S. Bornstein, Jan R. Hauser, John L. Flannery, Douglas A. Warner III and KPMG. It alleges violations of Sections 11, 12 and 15 of the Securities Act of 1933 based on alleged misstatements related to insurance reserves and performance of GE's business segments in GE Stock Direct Plan registration statements and documents incorporated therein by reference and seeks damages on behalf of shareowners who acquired GE stock between July 20, 2015 and July 19, 2018 through the GE Stock Direct Plan. In October 2018, GE filed a motion to dismiss on behalf of all defendants. General Electric Company operates as a digital industrial company worldwide. It operates through Power, Renewable Energy, Oil & Gas, Aviation, Healthcare, Transportation, Lighting, and Capital segments. General Electric Company was founded in 1892 and is headquartered in Boston, Massachusetts. GENERAL ELETRIC: Bid to Dismiss 401(k) Plan-Related Suit Denied --------------------------------------------------------------- General Electric Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 30, 2018, for the quarterly period ended September 30, 2018, that the court has denied the company's motion to dismiss the consolidated 401(k) Plan class action suit. On September 27, 2017, three individual plaintiffs filed a putative class action lawsuit in the U.S. District Court for the Southern District of California with claims regarding the oversight of GE's 401(k) plan (the GE RSP). From October 30 to November 15, 2017, three similar class action suits were filed in the U.S. District Court for the District of Massachusetts. All four actions have been consolidated into a single action in the District of Massachusetts. The consolidated complaint names as defendants GE, GE Asset Management, current and former GE and GE Asset Management employees who served on fiduciary bodies responsible for overseeing the GE RSP during the class period and current and former members of GE's Board of Directors. Like similar lawsuits that have been brought against other companies in recent years, this action alleges that the defendants breached their fiduciary duties under the Employee Retirement Income Security Act of 1974 (ERISA) in their oversight of the GE RSP, principally by retaining five proprietary funds that plaintiffs allege were underperforming as investment options for plan participants and charging higher management fees than some alternative funds. The plaintiffs seek unspecified damages on behalf of a class of GE RSP participants and beneficiaries from October 30, 2011 through the date of any judgment. In August 2018, the court issued an order denying GE's motion to dismiss as to a majority of the counts and taking GE's motion under further advisement regarding two counts. General Electric said, "We believe we have defenses to the claims and are responding accordingly." General Electric Company operates as a digital industrial company worldwide. It operates through Power, Renewable Energy, Oil & Gas, Aviation, Healthcare, Transportation, Lighting, and Capital segments. General Electric Company was founded in 1892 and is headquartered in Boston, Massachusetts. GENWORTH FINANCIAL: Unit Faces TVPX ARX INC. Suit in Virginia ------------------------------------------------------------- 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 Genworth Life and Annuity Insurance Company is facing a putative class action suit filed by TVPX ARX INC. In September 2018, Genworth Life and Annuity Insurance Company was named as a defendant in a putative class action lawsuit pending in the United States District Court for the Eastern District of Virginia captioned TVPX ARX INC., as Securities Intermediary for Consolidated Wealth Management, LTD. on behalf of itself and all others similarly situated v. Genworth Life and Annuity Insurance Company. The Plaintiff is alleging unlawful and excessive cost of insurance ("COI") charges were imposed on policyholders. The complaint asserts claims for breach of contract, alleging that Genworth improperly considered non-mortality factors when calculating COI rates and failed to decrease COI charges in light of improved expectations of future mortality. 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. GMS REST: Pinguil Seeks Unpaid Overtime Pay under FLSA ------------------------------------------------------ MANUEL PINGUIL, individually and on behalf of all others similarly situated, the Plaintiff, vs. GMS REST. CORP. D/B/A HEIGHTS CAFE and GREG S. MARKMAN and JOSEPH SECONDINO, as individuals, the Defendants, Case 1:18-cv-06051-BMC (E.D.N.Y., Oct. 29, 2018), seeks compensatory damages and liquidated damages in an amount exceeding $100,000.00, interest, attorneys' fees, costs, and all other legal and equitable remedies this Court deems appropriate, as a result of the Defendants violations of the Fair Labor Standards Act and the Federal and New York State labor laws. According to the complaint, although the Plaintiff worked approximately 72 or more hours per week during his employment by Defendants, Defendants did not pay Plaintiff 1.5 times for hours worked over 40, a blatant violation of the overtime provisions contained in the FLSA and NYLL. The Defendants willfully failed to post notices of the minimum wage and overtime wage requirements in a conspicuous place at the location of their employment as required by both the NYLL and the FLSA. The Defendants also willfully failed to keep accurate payroll records.[BN] Attorneys for Plaintiff: Roman Avshalumov, Esq. HELEN F. DALTON & ASSOCIATES, P.C. 69-12 Austin Street Forest Hills, NY 11375 Telephone: 718-263-9591 GOOGLE INC: Supreme Court Hears Arguments in Settlement Dispute --------------------------------------------------------------- Natalie Rodriguez and Jimmy Hoover, writing for Law360, report that the U.S. Supreme Court's look at a class action settlement with Google could rock the world of legal aid funding, and while that possibility went largely undiscussed during recent oral arguments, the justices' skepticism of payouts from such deals to charities raises concerns for legal aid providers. In the Oct. 31 arguments for the case, Frank v. Gaos, several justices criticized the fact that the $8.5 million deal settling privacy claims against Google would pay millions to attorneys and charities, but nothing to consumers. Attorneys from the underlying Gaos v. Google case have argued that it would be infeasible to mete out the award to a prospective 130 million-person size class, so earmarked the money for six separate charities instead. Such arrangements, called cy pres deals, involve class action settlements in which a portion of the funds are allocated to nonprofits when the parties and the judge have agreed the money can't be feasibly distributed to class members. While the breadth of the high court's ultimate ruling remains to be seen, the scrutiny of these deals indirectly threatens a system that the American Bar Association estimates sends approximately $15.5 million every year to legal aid service organizations. In debating the designation of charities as the next best recipients for the funds, several justices questioned whether the indirect benefits of cy pres -- pronounced "sigh pray" -- settlements runs afoul of Rule 23(e) of the Federal Rules of Civil Procedure, which requires that class action settlements be "fair, reasonable, and adequate." "And at the end of the day, what happens? The attorneys get money, and a lot of it. The class members get no money whatsoever. And money is given to organizations that they may or may not like and that may or may not ever do anything that is of even indirect benefit to them," Justice Samuel Alito said during arguments. "So how can -- how can such a system be regarded as a sensible system?" Small But Valuable Funds While often delivered in the form of small payouts from leftover pots of settlement funds after a claims process, money from cy pres deals can be windfalls for lean-operating legal aid organizations, according to several amici briefs that had urged the high court to preserve cy pres as a tool. The amount of funding legal aid organizations receive from cy pres deals varies widely from year to year. A review of tax return forms from the last three years for several nonprofits that disclosed cy pres contributions, including the Legal Aid Society of New York and Greater Boston Legal Services, showed cy pres usually accounted for less than 10 percent of an organization's budget. Last year, the Legal Foundation of Washington used $321,900 in cy pres awards to help close a budget shortfall, according to the organization's annual report. But at the Oct. 31 oral arguments, Chief Justice John Roberts questioned whether it's appropriate to hand out funds to charities -- which may make political or other speech -- that class members have not approved. Justices Alito and Brett Kavanaugh also questioned whether indirect benefits for third-party organizations are better than direct benefits for at least some class members. Justice Kavanaugh even chewed on petitioners' suggestion that a lottery system would be preferable to not giving anything to claimants just because the class size is so large. "Isn't it always better to at least have a lottery system than that one of the plaintiffs, one of the injured parties gets it, rather than someone who's not injured? Why isn't that always more reasonable?," Justice Kavanaugh said. The plaintiffs in the underlying case, however, fought back against the criticism of using charities to provide indirect relief to class members. "When you have a possibility of getting millions of dollars of indirect relief, it is better, it is fair, reasonable, and adequate, to get that when the alternative is likely nothing or the nominal equivalent of nothing," Jeffrey Lamken, a MoloLamken LLP attorney representing the plaintiffs, told the justices. Justice Sonia Sotomayor pointed out that the Google settlement at issue is a rare all-cy pres deal and that there have only been a handful of such deals in recent years. She also questioned petitioner Theodore Frank, who represented himself, on claims that cy pres is rampantly abused in class action deals. "You do point to some potentially abusive situations, but in all those situations, it's the cases where the circuit court rejected a cy pres award. It seems like the system is working, not not working," Justice Sotomayor said. Frank argued that the Ninth Circuit's blessing of the Google settlement creates a "perverse" incentive to divert money away from clients and to third-parties and that courts' too-welcoming embrace of cy pres have led to counsel making it too hard for class members to file claims for their slice of the pie. He argued cy pres funds should not be used in calculations for attorneys' fees. In the Google deal, $2.15 million went to class counsel, $5.3 million to internet privacy nonprofits, and the rest was used for administrative costs payments to the named plaintiffs. High Potential for Narrow Ruling Experts watching the case say they can't predict whether the high court will ultimately use the fight over the settlement as a vehicle to make a broad ruling on cy pres, or instead decide the case based on other issues raised in the appeal. Chief Justice Roberts previously expressed interest in weighing in on the growing use of largely cy pres settlements when declining a 2013 appeal of a similar deal involving Facebook. Much of Oct. 31, however, was spent, not on the question presented to the court about whether cy pres deals violate Rule 23, but on whether the plaintiffs in the underlying Gaos v. Google case have standing following the high court's landmark decision in Spokeo Inc v. Robins. The standing issue might "muck up the case" and push the justices to punt on the issue of whether cy pres violates Rule 23, said Jonah Knobler -- jknobler@pbwt.com -- a Patterson Belknap Webb & Tyler LLP attorney who regularly represents class action defendants. Instead, the court could rule on the standing question, remand the case to the lower court or decide the petition was improvidently granted, Mr. Knobler said. The U.S. Solicitor General's office, which represents the interests of the federal government before the U.S. Supreme Court, argued the standing issue should be revisited given the court's 2016 Spokeo decision holding that plaintiffs need to allege more than just the violation of a statute to have standing to sue. "It seems like there's a decent chance they won't decide the merits here," Mr. Knobler said. "But I'm not that worried the issue will continue to be unresolved, because there are other cases in the pipeline." Mr. Knobler expects that even if the court does rule on the cy pres question, it will likely take the form of narrower resolution on the all-cy pres award, rather than a broad stroke dismissal of the use of cy pres to do away even with residuals. "Generally, with exceptions, the court likes to rule in steps and not cause earthquakes," Mr. Knobler said. For now, many legal aid and advocacy groups are watching and hoping that the court does not rein in the use of cy pres distribution as the next best use of class action settlement funds. "The cy pres doctrine provides courts with an indispensable framework for distributing these funds in a way that benefits absent class members and consumers as a whole while also effectively serving the disgorgement and deterrence goals of consumer protection statutes," said Stuart Rossman, director of litigation at the National Consumer Law Center. While all rules can be abused, Mr. Rossman believes existing guidelines governing the use of cy pres in the courts have been working. "In deciding this case, we believe that the court should be mindful of the implications for low-income consumers of unduly hampering class actions, which constitute the most effective -- and very often the sole -- means of vindicating their rights as enshrined in consumer protection statutes," Mr. Rossman said. [GN] GOOGLE LLC: Weeks et al Seek to Certify Class --------------------------------------------- In the class action lawsuit captioned as Patricia Weeks, Alicia Helms, Brian McCloy, and Adrian Alcaraz, on behalf of themselves and all others similarly situated, the Plaintiff, vs. GOOGLE LLC, the Defendant, Case No. 5:18-cv-00801-NC (N.D. Cal.), the Plaintiffs will move the Court on March 13, 2019, for an order: 1. certifying a class of: "all individuals in the United States who purchased from Google or an authorized reseller, other than for resale, a Google Pixel or Pixel XL smartphone that was manufactured before January 5, 2017 ("Class Phones"); alternately -- "all individuals in the United States who purchased from Google or an authorized reseller, other than for resale, directly from Google anywhere in the United States or from Google or an authorized retailer in California. Excluded from the class are Google, its officers, directors, employees, subsidiaries; the parties' counsel in this litigation; and any individuals who received a full cash refund or non-Class Phone as a replacement for the purchased Class Phone. 2. appointing themselves as Class Representative; and 3. appointing Girand Sharp LLP and Chimicles & Tikellis LLP as class counsel.[CC] Counsel for Plaintiffs: Daniel C. Girard, Esq., Jordan Elias, Esq. Adam E. Polk, Esq. Simon S. Grille, Esq. GIRAND SHARP LLP 601 California Street, Suite 1400 San Francisco, CA 94108 Telephone: (415) 981 4800 E-mail: dgirard@girardsharp.com jelias@girardsharp.com apolk@girardsharp.com sgrille@girardsharp.com - and - Benjamin F, Johns, Esq. Andrew W. Ferich, Esq. Zachary P. Beatty, Esq. CHIMICLES & TIKELLIS LLP One Haverford Center 361 West Lancaster Avenue Haverford, PA 19041 Telephone: (610) 19041 E-mail: bfj@chimicles.com awf@chimicles.com zpb@chimicles.com HAIN CELESTIAL: Faces Class Action Over Alba Botanica Sunscreen --------------------------------------------------------------- Jenie Mallari-Torres, writing for Legal Newsline, reports that a Lake Forest, Illinois consumer alleges the maker of the Alba Botanica sunscreen brand failed to represent that consumers should shake the product 10 seconds before applying and that improper application would result in inadequate sun protection. Katy Manley filed a complaint individually and on behalf of all others similarly situated on Oct. 23 in the U.S. District Court for the Northern District of Illinois, Eastern Division against The Hain Celestial Group alleging violation of the Illinois Consumer Fraud and Deceptive Business Practices Act and other counts. According to the complaint, the plaintiff alleges that the defendant's Alba Botanica Very Emollient Mineral Spray Sunscreen has less protection than advertised and that the defendant made misleading claims regarding the proper application of the product. The plaintiff alleges the product is now sold in new packaging as Alba Botanica Refreshing Mineral Spray and has updated directions that consumers should shake the product for 10 seconds before use and blend well into the skin with their hands. The plaintiff alleges the Alba Botanica Very Emollient Mineral Spray Sunscreen does not include these instructions, and as a result she suffered sunburn. The plaintiffs hold The Hain Celestial Group responsible because the defendant allegedly falsely represented the product provided sun protection. The plaintiffs request a trial by jury and seek judgment against the defendant, certify the class action, actual and treble damages, interest, disgorgement, injunctive and declaratory relief, and further available relief and any other relief the court deems just. She is represented by William M. Sweetnam and Natasha Singh of Sweetnam LLC in Chicago, Illinois. U.S. District Court for the Northern District of Illinois Eastern Division case number 18-cv-07101 [GN] HAIN CELESTIAL: Removes Lindquist et al. Suit to N.D. California ---------------------------------------------------------------- The Defendant in the case of ERIN LINDQUIST, DAVID SWARTZ, and MARTHA VALENTINE, individually and on behalf of all others similarly situated, Plaintiffs, v. THE HAIN CELESTIAL GROUP, INC., Defendant, filed a notice to remove the lawsuit from the Superior Court of the State of California, County of San Francisco (Case No. CGC-18-569306) to the U.S. District Court for the Northern District of California on October 23, 2018. The clerk of court for the Northern District of California assigned Case No. 3:18-cv-06465-EDL (N.D. Cal., Oct. 23, 2018). The Hain Celestial Group, Inc. manufactures, markets, distributes, and sells organic and natural products. The company sells its products through specialty and natural food distributors, supermarkets, natural food stores, mass-market and e-commerce retailers, food service channels and clubs, and drug and convenience stores in approximately 80 countries worldwide. The Hain Celestial Group, Inc. was founded in 1993 and is headquartered in Lake Success, New York. [BN] The Defendant is represented by: Kenneth K. Lee, Esq. Christina A. Aryafar, Esq. JENNER & BLOCK LLP 633 West 5th Street, Suite 3600 Los Angeles, CA 90071 Telephone: (213) 239-5100 Facsimile: (213) 239-5199 E-mail: klee@jenner.com caryafar@jenner.com - and - Dean N. Panos, Esq. JENNER & BLOCK LLP 353 N. Clark Street Chicago, IL 60654-3456 Telephone: (312) 222-9350 Facsimile: (312) 527-0484 E-mail: dpanos@jenner.com HERTZ TRANSPORTING: Class Certification Denied Without Prejudice ---------------------------------------------------------------- In the class action lawsuit captioned as Janice Dawson, the Plaintiff, vs. Hertz Transporting, Inc., et al., the Defendants, Case 2:17-cv-08766-GW-JEM (C.D. Cal.), the Hon. Judge George H. Wu entered an order Nov. 5, 2018, denying Plaintiff's motion for class certification without prejudice. If Plaintiff wishes to file an amended motion, she must do so within 45 days of the ruling, according to the civil minutes. The Court denied certification of the following class and four subclasses: (1) a class of all hourly, non-exempt Hertz employees in California from October 16, 2013 through the date of certification ("Class Members"); (2) all Class Members who were not provided compliant and lawful meal periods; (3) all Class Members who were not provided timely and uninterrupted rest periods in which they were free to leave the premises; (4) all Class Members for whom Hertz automatically deducted 30 minutes from employee timecards; and (5) all current and former non-exempt or hourly employees who worked for Hertz in California at any time from October 16, 2016 through certification.[CC] Attorneys for Plaintiffs: Vincent Calderone, Esq. CALDERONE LAW FIRM 2321 Rosecrans Ave Ste 1265 El Segundo, CA 90245-4991 Telephone: (424) 348-8290 E-mail: vcalderone@calemploymentattorney.com - and - Ashley Allison Davenport, Esq. Patricia T. Barrera, Esq. BARRERA & ASSOCIATES 2298 E Maple Ave, El Segundo, CA 90245-6507 Telephone: (310) 802-1500 Facsimile: (310) 802-0500 E-mail: davenport@baattorneys.com Attorneys for Defendants: Robert A. Dolinko, Esq. Irene S. Tatevosyan, Esq. NIXON PEABODY LLP San Francisco, CA Telephone: 415 984-8494 Facsimile: 866 464-8397 HOLLINGSWORTH LOGISTICS: Fails to Pay Proper Wages, Laqui Claims ---------------------------------------------------------------- JOHN LAQUI, individually and on behalf of all others similarly situated, Plaintiff v. HOLLINGSWORTH LOGISTICS GROUP; HOLLINGSWORTH LOGISTICS GROUP-MTESC, LLC; and DOES 1 through 100, inclusive, Defendants, Case No. STK-CV-KUVE-2018-13252 (Cal. Super., San Joaquin Cty., Oct. 23, 2018) is an action against the Defendants for failure to pay minimum wages, overtime compensation, authorize and permit meal and rest periods, provide accurate wage statements, and reimburse necessary business expenses. The Plaintiff Laqui was employed by the Defendants as an hourly-paid, non-exempt employee from June 2017 to February 2018. Hollingsworth Logistics Group, LLC (HLG) provides transportation services. The Company contract packaging, light assembly, quality testing, modular build-up and sequencing, procurement, distribution, program management, freight management, and logistics services. [BN] The Plaintiff is represented by: Edwin Aiwazian, Esq. LAWYERS FOR JUSTICE, PC 410 West Arden Avenue, Suite 203 Glendale, CA 91203 Telephone: (818) 265-1020 Facsimile: (818) 265-1021 HOLY SMOKE: Class Action Status Sought for Lawsuit -------------------------------------------------- Elizabeth Doran, writing for Syracuse.com, reports that a lawsuit seeking class-action status has been filed in state Supreme Court against a caterer who provided food for a wedding reception in 2015 where numerous guests became violently ill. A judge is scheduled to decide Dec. 6 if the case warrants class-action status, said Thomas Cerio, Esq. who represents the bride, Melissa Conarton, and the guests. The class-action suit comes on the heels of an earlier lawsuit filed in July by the bride -- against the caterer, Holy Smoke BBQ & Catering LLC. The bride would be excluded from the class-action suit, Cerio said. "The class-action is not about her -- it was never about her," Cerio said. "It's about what she wants to get for her wedding guests who were sick." The bride's father, James Conarton, would be the lead plaintiff in the class action lawsuit. Melissa Conarton said only that wants her wedding guests' bills paid, which she has estimated to be about $12,000. A Holy Smoke's owner declined comment when contacted by Syracuse.com Matthew E. Whritenour, Esq. -- mew@knychwhritenourlaw.com -- of Knych & Whritenour, lawyers for Holy Smoke, did not return a call from Syracuse.com. Both lawsuits allege that Holy Smoke, of Earlville in Madison County, provided food -- specifically macaroni and cheese -- for the July 31, 2015 wedding reception of Melissa Conarton and Jesse Abbott that allegedly caused numerous wedding guests to become violently ill. Nine ambulances were called, and numerous guests were taken to the hospital. The case attracted national attention on television and other media outlets. The class-action suit names the macaroni cheese as the food allegedly causing the food-poisoning. According to the papers filed in the suit, at least 45 guests (and potentially more than 100) suffered food poisoning after consuming the dish. The health department investigated and determined there was an outbreak of staphylococcus aureus, including 45 primary cases, according to the lawsuit. At least 40 people vomited and at least 32 people had diarrhea, the papers said, and all the people who were sick after eating the macaroni and cheese represent the proposed class, the lawsuit says. Lawyers for Holy Smoke in court papers deny it was the caterer's macaroni and cheese that caused the food poisoning. Instead, they allege that the investigating health departments didn't have "sufficient data or proof" that the illnesses were linked to any of the caterer's food, including the mac and cheese. They said while the investigating health departments may have suspected the mac and cheese might have been linked to the illnesses, they never made that conclusion. The lawyers for Holy Smoke also say the health departments were unable to rule out any of the food, beverages or ice brought to the reception by guests as the cause of the outbreak. The Onondaga and Chenango county health departments confirmed the outbreak, and determined the macaroni and cheese was statistically significant - no other foods at at the reception were implicated, the lawsuit filed by the bride says. The bride's lawsuit alleges it was the second container of macaroni and cheese served to guests that made them ill. The mac and cheese was pre-cooked and then transported to the wedding reception an hour away, the papers say. The temperature of the mac and cheese - and any other food - on the buffet line was not taken, the suit alleges. Because there weren't enough bathrooms at the venue, "guests were forced to vomit in public areas and and had diarrhea in their pants, in plain view of other guests,'' the bride's lawsuit says. Nine ambulances were called, and took guests to various hospitals, the papers say. Holy Smoke's lawyers also dispute the number of wedding guests (estimated at 220) and also disputes the need for a class-action suit. The lawyers allege that only eight of the wedding guests tested positive for the staphylococcus aureus, pathogen, while the cause of illness in others who got sick is unknown. In addition, they allege the lead plaintiff, James Conarton, doesn't meet the minimum requirement of damages of at least $25,000. His bill, after insurance, was $35 - and stacking the others' claims isn't proper, the lawyers allege. Cerio said class-action lawsuits are "judicially economic'' because it prevents numerous individual lawsuits from being filed and instead groups them together. Holy Smoke originally agreed to cover the cost of the co-pays of the guests, according to court papers. [GN] HONDA MOTOR: Faces Class Action Over Vehicle CVT Problems --------------------------------------------------------- David A. Wood, writing for CarComplaints.com, reports that Honda Civic CVT problems have caused a lawsuit that alleges the cars roll away even though the gear shifters indicate the cars are in PARK. The Honda Civic proposed class-action lawsuit includes consumers in the U.S. who purchased or leased 2016-2018 Civics equipped with continuously variable transmissions (CVTs). Plaintiffs Sheryl Tenzyk and Larry Allen claim the CVTs fool drivers into believing the cars are in PARK and are safe to exit. In addition, the Civics fail to automatically activate the electric parking brakes when drivers exit or when the doors are opened. Owners complain they knew their cars were in PARK only to cope with the aftermath of the cars rolling away. "I was in the back seat . . .the car rolled down my driveway, across my street and into a tree on my neighbors property. I was thrown around the vehicle before being flung backwards out of the door that was still open. Once I came to, I thought I was crazy and had maybe neglected to put the car in Park, but when I checked inside the vehicle, the car was still sitting in Park." - 2017 Honda Civic owner In 2016, Honda recalled about 350,000 model year 2016 Civics after the automaker found if the "EPB (electric parking brake) isn't properly set and a parking gear is not selected by the driver, the vehicle could potentially roll away, increasing risk of a crash." Honda said dealers would update software to ensure the parking brakes engaged when the Civics were parked and before drivers exited the cars. However, the plaintiffs claim the recall did nothing to fix the CVT problems or the rollaway dangers. The lawsuit alleges Honda didn't do enough with the recall considering only model year 2016 Civics were included, even though owners also were complaining about 2017 models. "My new car will let you turn off (push button) and get out and walk away while still being in gear. I exited my vehicle in this situation and it rolled down the drive and hit a tree. It was 3 feet from rolling into a highway that could have resulted in serious injury or death." - 2017 Honda Civic owner "When pulling into a parking spot I put the car into park but the car kept moving forward, over a sidewalk and into a building. I put the car in reverse and could not stop the car until it hit another object. Had damage to the front bumper and grill." - 2017 Honda Civic owner Sheryl Tenzyk says she leased a 2016 Honda Civic and in November 2017 she started the car in her driveway and then went inside her home. She came back outside only to see the Civic had rolled down her driveway, then across the street and into another yard. She says she ran to the Civic to find it still running and in NEUTRAL. The plaintiff alleges the car hit a cable pole and damaged the front part of the bumper, causing her to take the Civic to a body shop. The plaintiff says she paid about $700 to repair the bumper and couldn't figure out how the Civic had rolled away because she knew it was in PARK when she exited the car. In May 2018, she drove the car to a business and when she left the business she noticed the Civic had rolled backward into a handicapped parking spot. Ms. Tenzyk says she called Honda corporate and was assigned a case number, but the automaker allegedly never contacted her other than by a letter that said her case was closed. She then contacted a Honda dealer and described both rollaway incidents, but the technician allegedly told her nothing was wrong with her car. Additionally, the plaintiff claims she was told the problem was likely caused by "user error," but she was never asked to bring in the car for inspection. According to the plaintiffs, they wouldn't have purchased the cars or would have paid less for them if Honda would have told them about the gear shift and CVT problems. The Honda Civic lawsuit alleges Honda knew there were better gear shifter designs that included safeguards such as automatically putting the vehicle in park when the driver's door opens or when the ignition is turned off. According to the lawsuit, nearly a million 2016-2018 Honda Civics contain the gear shift and CVT problems. The Honda Civic gear shift and CVT lawsuit was filed in the U.S. District Court for the Eastern District of New York - Sheryl Tenzyk and Larry Allen, et al., v. American Honda Motor Co., Inc. The plaintiffs are represented by Ahdoot & Wolfson, PC, Greg Coleman Law, and Whitfield, Bryson & Mason LLP. CarComplaints.com has complaints from drivers of the 2016 Honda Civic, 2017 Civic and 2018 Honda Civic. [GN] HONEYWELL INT'L: Jan. 2 Lead Plaintiff Motion Deadline Set ---------------------------------------------------------- The law firm of Kessler Topaz Meltzer & Check, LLP on Nov. 5 disclosed that a securities fraud class action lawsuit has been filed in the United States District Court for the District of New Jersey against Honeywell International Inc. (NYSE: HON) ("Honeywell" or the "Company") on behalf of purchasers of Honeywell securities between February 9, 2018 through October 19, 2018, inclusive (the "Class Period"). Important Deadline: Investors who purchased Honeywell securities during the Class Period may, no later than January 2, 2019, seek to be appointed as a lead plaintiff representative of the class. For additional information or to learn how to participate in this action please visit www.ktmc.com/honeywell-securities-class-action According to the complaint, Honeywell is a multinational conglomerate that makes a variety of commercial and consumer products, engineering services, and aerospace systems. Honeywell previously owned Bendix Friction Materials ("Bendix"), a manufacturer of automotive, truck and industrial brakes. Despite known health hazards, Bendix used asbestos in its brake- and clutch-pad products until 2001. Honeywell sold Bendix in 2014. The Class Period commences on February 9, 2018, when Honeywell filed an annual report on a Form 10-K with the U.S. Securities and Exchange Commission ("SEC"), announcing the Company's financial and operating results for the quarter and year ended December 31, 2017, and reported asbestos related liabilities attributable to Bendix of $616 million as of December 31, 2017. On August 23, 2018, Honeywell disclosed that "the Company's Bendix asbestos-related liability is estimated to be $1,693 million as of June 30, 2018. This is $1,083 million higher than the Company's prior estimation." According to the complaint, on October 19, 2018, Honeywell issued a press release announcing its third quarter 2018 earnings, and filed its quarterly report with the SEC for the quarter ended September 30, 2018. In its quarterly report, Honeywell disclosed that the SEC's Division of Corporate Finance had reviewed Honeywell's prior accounting for liability for unasserted Bendix-related asbestos claims, and that "on September 13, 2018, following completion of Corporation Finance's review, the SEC Division of Enforcement advised that it has opened an investigation related to this matter." Further, Honeywell revised its Bendix-related asbestos liability, disclosing that "the Company's revised estimated asbestos-related liabilities are now $2,610 million as of December 31, 2017, which is $1,087 million higher than the Company's prior estimate." Following this news, Honeywell's stock price fell $1.72 per share, or 1.11%, to close at $153.47 per share on October 19, 2018. Over the following three trading sessions, Honeywell's stock price fell by an additional $7.87, or 5.3%, to close at $140.72 per share on October 24, 2018. The complaint alleges that throughout the Class Period, the defendants made false and/or misleading statements and/or failed to disclose that: (i) Honeywell's Bendix asbestos-related liability was greater than initially reported; (ii) Honeywell maintained improper accounting practices in connection with its Bendix asbestos-related liability; and (iii) as a result, Honeywell's public statements were materially false and misleading at all relevant times. If you wish to discuss this securities fraud class action or have any questions concerning this notice or your rights or interests with respect to these matters, please contact Kessler Topaz Meltzer & Check (James Maro, Jr., Esq. or Adrienne Bell, Esq.) at (888) 299–7706 or (610) 667–7706, or via e-mail at info@ktmc.com. Honeywell investors may, no later than January 2, 2019, seek to be appointed as a lead plaintiff representative of the class through Kessler Topaz Meltzer & Check, or other counsel, or may choose to do nothing and remain an absent class member. A lead plaintiff is a representative party who acts on behalf of all class members in directing the litigation. In order to be appointed as a lead plaintiff, the Court must determine that the class member's claim is typical of the claims of other class members, and that the class member will adequately represent the class. Your ability to share in any recovery is not affected by the decision of whether or not to serve as a lead plaintiff. Kessler Topaz Meltzer & Check -- http://www.ktmc.com-- prosecutes class actions in state and federal courts throughout the country involving securities fraud, breaches of fiduciary duties and other violations of state and federal law. Kessler Topaz Meltzer & Check is a driving force behind corporate governance reform, and has recovered billions of dollars on behalf of institutional and individual investors from the United States and around the world. The firm represents investors, consumers and whistleblowers (private citizens who report fraudulent practices against the government and share in the recovery of government dollars). The complaint in this action was not filed by Kessler Topaz Meltzer & Check. [GN] HOSOPO CORP: Loses Bid to Dismiss Keifer TCPA Suit -------------------------------------------------- The United States District Court for the Southern District of California issued an Order denying Defendant's Motion to Dismiss in the case captioned MICHAEL KEIFER, individually and on behalf of all others individually situated, Plaintiff, v. HOSOPO CORPORATION d/b/a HORIZON SOLAR POWER; and DOES 1 through 10, inclusive, Defendant. Case No. 3:18-cv-1353-CAB-(KSC). (S.D. Cal.). This matter comes before the Court on Defendant HOSOPO Corporation's (HOSOPO) motion to dismiss. The FAC alleges that the Plaintiff received at least 14 unsolicited calls from the Defendant to his cellular phone. The Plaintiff contends that these calls were made using an automatic telephoned dialing system (ATDS) and that on one or more occasions an artificial or prerecorded voice was utilized during these calls. Legal Standard Under Rule 12(b)(6), a party may bring a motion to dismiss based on the failure to state a claim upon which relief may be granted. A Rule 12(b)(6) motion challenges the sufficiency of a complaint as failing to allege enough facts to state a claim to relief that is plausible on its face. The Defendant moves to dismiss under Rule 12(b)(6) on the grounds that all of Plaintiff's claims have not been pled with the requisite specificity. Alternatively Defendant moves to strike under Rule 12(f) the request for treble damages and the class allegations. The TCPA violations To successfully plead a TCPA claim, a plaintiff must allege defendant (1) called a cellular telephone number; (2) using an ATDS or an artificial or prerecorded voice; (3) without the recipient's prior express consent. To make a call under the TCPA the person must either (1) directly make the call, or (2) have an agency relationship with the person who made the call. An ATDS is equipment which has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator. Here, the Plaintiff alleges that the Defendant called his cell phone without his prior consent. He also alleges that the Defendant used an automatic telephone dialing system as defined by 47 U.S.C. Section 227(a)(1) to place its calls to Plaintiff in an attempt to solicit Plaintiff to purchase HOSOPO's services. The Defendant's contention that the Plaintiff has failed to establish that it, or any agent, made any of the alleged 14 calls is unavailing. For purposes of the motion to dismiss, the Court accepts as true the factual allegations of the FAC that Defendant placed multiple calls to Plaintiff trying to solicit his business and that it owned the telephone number from which Plaintiff was contacted. Furthermore, since the FAC alleges that the purpose of the calls was to sell HOSOPO's services, the Court also finds it reasonable at this stage of the proceedings to infer that if the calls were not made by Defendant, they were made by entities utilized by Defendant, acting as its agents, to place the calls on its behalf. Thus, the Plaintiff has met the first element of the TCPA claim and adequately allegedly that Defendant called his cellular number. Turning to the question of whether an ATDS was used, the Defendant dedicates five pages of briefing to discussing the case law and history surrounding the definition of an ATDS. The Defendant argues that in light of the case law, the Plaintiff's claims should be dismissed because he does not allege that Defendant used equipment that had the ability to generate numbers randomly or sequentially. But, the Defendant's position that the dialing system at issue must create or develop numbers on its own is not supported by a recent Ninth Circuit decision published after briefing was submitted. The Court has concluded that the Plaintiff has either adequately alleged the elements necessary to state a TCPA claim, or stated enough facts from which a plausible inference can be drawn the Defendant was responsible for the calls being made to the Plaintiff. Accordingly, the Defendant's motion to dismiss the first and third causes of action is denied. Knowing and Willfull Violation of the TCPA Claims The Defendant also argues that the knowing and/or wilful violations of the TCPA must be dismissed because all that is offered are bare conclusory allegations with insufficient facts to suggest the Defendant willfully or knowingly violated the TCPA. In support the Defendant has cited Blikken v. Risen Capital, LLC, No. 8:15-cv-1693-T-27MAP, 2016 WL 7423411 (M.D. Fla. Nov. 28, 2018) , the magistrate judge did, as Defendant contends, find the complaint failed to allege facts showing that defendant acted knowingly or willingly and therefore concluded an award treble damages was inappropriate and only recommended entry of default on the TCPA violations in the amount of $15,000. In contrast, courts within this circuit have held allegations similar to those made in the FAC, regarding the knowing and willfulness on the part of defendant, sufficient to withstand a motion to dismiss. The Defendant's motion to strike the request for treble damages from the FAC is DENIED. Class Allegations Claims Defendant asks the Court to strike the class allegations in the FAC claiming they create impermissible fail safe classes. Class allegations can be stricken or dismissed at the pleading stage. However, dismissing class allegations at the pleading stage, is rare because the parties have not yet engaged in discovery and the shape of a class action is often driven by the facts of a particular case. The more appropriate vehicle for testing the validity of class claims is a motion for class certification. At this stage of the proceedings, the Court cannot say that the class claims are unsuitable for class treatment. Accordingly, the Defendant's motion to strike the class allegations in the FAC is denied. A full-text copy of the District Court's October 25, 2018 Order is available at https://tinyurl.com/ydadowgf from Leagle.com. Michael Kiefer, individually and on behalf of all others similarly situated, Plaintiff, represented by Todd M. Friedman -- tfriedman@toddflaw.com -- Law Offices of Todd M. Friedman, P.C. HOSOPO Corporation, doing business as Horizon Solar Power, Defendant, represented by Patrick J. Mulkern -- pmulkern@gordonrees.com -- Gordon & Rees LLP & Thomas C. Blatchley -- tblatchey@grsm.com -- Gordon & Rees, LLP, pro hac vice. HUMAN DEVELOPMENT: Dziura Seeks Unpaid Wages under Labor Law ------------------------------------------------------------ MARIANNA DZIURA, individually and on behalf of all other persons similarly situated who were employed by HUMAN DEVELOPMENT ASSOCIATION, INC., HDA, HUMAN DEVELOPMENT ASSOCIATION, INC., and H.D.A. Inc., the Plaintiffs, vs. HUMAN DEVELOPMENT ASSOCIATION, INC., HDA, HUMAN DEVELOPMENT ASSOCIATION, INC., and H.D.A. Inc., the Defendants, Case No. 159998/2018 (N.Y. Sup. Ct., Oct. 29, 2018), seeks to recover minimum wages, overtime compensation, "spread of hours" compensation, as well as damages arising from Defendant's breach of contract, which they were deprived of, plus interest, attorneys' fees, and costs pursuant to the New York Labor Law. According to the complaint, the Plaintiffs are citizens of the State of New York and are presently or were formerly employed by Defendant to provide personal care, assistance, health-related tasks and other home care services to Defendant's clients within the State of New York. The Defendant has maintained a policy and practice of requiring Plaintiffs to regularly work in excess of 10 hours per day, without providing the proper hourly compensation for all hours worked, overtime compensation for all hours worked in excess of 40 hours in any given week, and "spread of hours" compensation, the lawsuit says.[BN] Attorneys for Plaintiff and the Putative Class: LaDonna Lusher, Esq. Jack Newhouse, Esq. VIRGINIA & AMBINDER, LLP 40 Broad Street, 7th Floor New York, NY 10004 Telephone: (212) 943 9080 HUNTER TERRELL: Hernandez Seeks Unpaid Overtime Wages under FLSA ---------------------------------------------------------------- ORLANDO HERNANDEZ, Individually and On Behalf of All Others Similarly Situated, the Plaintiff, vs. HUNTER TERRELL SOLUTIONS, LLC, the Defendant, Case 4:18-cv-00050 (W.D. Tex., Oct. 29, 2018), seeks to recover unpaid overtime wages from the Defendant under the Fair Labor Standards Act of 1938. According to the complaint, HTS violated the FLSA by employing Plaintiff and other similarly situated nonexempt employees for a workweek longer than forty hours but refusing to compensate them for their employment in excess of 40 hours at a rate not less than one and one-half times the regular rate at which they are or were employed. HTS violated the FLSA by failing to maintain accurate time and pay records for Plaintiff and other similarly situated nonexempt employees as required by 29 U.S.C. section 211(c) and 29 C.F.R. pt. 516. HTS is liable to Plaintiff for his unpaid overtime wages, liquidated damages and attorney's fees and costs pursuant to 29 U.S.C. section 216(b). All flowback operators employed by HTS are similarly situated to Plaintiff because they have similar job duties; regularly work in excess of 40 hours per week; are not paid overtime for the hours they work in excess of 40 per week as required by 29 U.S.C. section 207(a)(1); and are entitled to recover their unpaid overtime wages, liquidated damages and attorneys' fees and costs from HTS pursuant to 29 U.S.C. section 216(b), the lawsuit says. Hunter Terrell is in the steel wire and related products business.[BN] The Plaintiffs are represented by: Melissa Moore, Esq. Curt Hesse, Esq. Bridget Davidson, Esq. MOORE & ASSOCIATES Lyric Center 440 Louisiana Street, Suite 675 Houston, TX 77002 Telephone: (713) 222-6775 Facsimile: (713) 222-6739 INDIA GLOBALIZATION: Jan. 2 Lead Plaintiff Motion Deadline Set -------------------------------------------------------------- Pomerantz LLP on Nov. 5 disclosed that a class action lawsuit has been filed against India Globalization Capital, Inc. ("India Globalization" or the "Company") (NYSE: IGC) and certain of its officers. The class action, filed in United States District Court, District of Maryland, and index under 18-cv-03408, is on behalf of a class consisting of all persons and entities, other than Defendants and their affiliates, who purchased or otherwise, acquired India Globalization securities between June 21, 2018 through October 29, 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 India Globalization securities between June 21, 2018, and October 29, 2018, both dates inclusive, you have until January 2, 2019, 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. India Globalization purports to be focused on the development and commercialization of cannabinoid based alternative therapies for indications such as Alzheimer's disease, Parkinson's disease, and pain. Its lead product is Hyalolex, an alternative oral therapy for the treatment of symptoms associated with Alzheimer's disease. The Company has filed several patents for its pipeline of products including ones for the treatment of Parkinson's Central Nervous System related disorders, eating disorders, and seizures in cats and dogs. Since its inception, the Company operates a legacy business that involves trading commodities and heavy equipment rental. 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) India Globalization substantially discontinued the business that it conducted at the time it began trading on the NYSE American; (ii) the Company had become engaged in ventures or promotions which have not developed to a commercial stage; (iii) consequently, the Company is not an operating company for the purposes of continued trading and listing on the NYSE American; and (iv) as a result, India Globalization's public statements were materially false and misleading at all relevant times. On Sunday, October 28, 2018, an article was published on the financial news website Marketwatch, titled "All the potential red flags for investors in IGC, the pot stock that jumped 1,000% in three months." The article discussed the "alarming number of red flags" it uncovered which "undermine" claims made by the Company. Then, on October 29, 2018, the NYSE American announced "that the staff of NYSE Regulation has determined to commence proceedings to delist the common stock of India Globalization Capital, Inc. (NYSE: IGC) -- ticker symbol IGC -- from the Exchange. Trading in the Company's common stock on the NYSE American will be suspended immediately." The NYSE American also said that the "Company or its management have engaged in operations which, in the opinion of the Exchange, are contrary to the public interest." Following this news, the Company's common stock ceased trading on the NYSE American, resulting in significant damages to the Company's stockholders and the Class. With offices in New York, Chicago, Los Angeles, and Paris, The Pomerantz Firm -- http://www.pomerantzlaw.com-- concentrates its practice in the areas of corporate, securities, and antitrust class litigation. Founded by the late Abraham L. Pomerantz, known as the dean of the class action bar, the Pomerantz Firm pioneered the field of securities class actions. Today, more than 80 years later, the Pomerantz Firm continues in the tradition he established, fighting for the rights of the victims of securities fraud, breaches of fiduciary duty, and corporate misconduct. The Firm has recovered numerous multimillion-dollar damages awards on behalf of class members. [GN] INTERCONTINENTAL EXCHANGE: Awaits Court OK on Bid to Dismiss Suit ----------------------------------------------------------------- Intercontinental Exchange, 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 parties are awaiting a decision on a motion to dismiss filed by the defendant exchanges. The company's 2017 Form 10-K included a description of the purported class action lawsuit against two of the company's subsidiary NYSE exchanges, and other U.S. exchanges, by the City of Providence, Rhode Island and other plaintiffs. As reported in the company's 2017 Form 10-K, the defendant exchanges filed a petition for rehearing and/or rehearing en banc of the U.S. Court of Appeals for the Second Circuit's December 2017 decision vacating the dismissal of the case and on March 13, 2018, the Second Circuit denied the company's petition. On August 10, 2018, the defendant exchanges filed a petition in the U.S. Supreme Court seeking review of the Second Circuit's December 2017 decision. On October 9, 2018, the Supreme Court denied the petition. Intercontinental Exchange said, "Additionally, the parties are awaiting a decision on a motion to dismiss filed by the defendant exchanges in the district court seeking dismissal on grounds other than those considered by the Second Circuit in its December 2017 decision." Intercontinental Exchange, Inc. operates regulated exchanges, clearing houses, and listings venues for financial and commodity markets in the United States, the United Kingdom, Continental Europe, Asia, Israel, and Canada. It operates through two segments, Trading and Clearing; and Data and Listings. Intercontinental Exchange, Inc. was founded in 2000 and is headquartered in Atlanta, Georgia. INTERNATIONAL BUSINESS: Appeal in NY ERISA Suit Still Pending ------------------------------------------------------------- International Business Machines Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 30, 2018, for the quarterly period ended September 30, 2018, that the appeal made in the Employee Retirement Income Security Act-related class action suit filed in the U.S. District Court for the Southern District of New York, is still pending. In May 2015, a putative class action was commenced in the United States District Court for the Southern District of New York related to the company's October 2014 announcement that it was divesting its global commercial semiconductor technology business, alleging violations of the Employee Retirement Income Security Act ("ERISA"). Management's Retirement Plans Committee and three current or former IBM executives are named as defendants. On September 29, 2017, the Court granted the defendants' motion to dismiss the first amended complaint. Plaintiffs appealed to the Second Circuit Court of Appeals and the matter remains pending. No further updates were provided in the Company's SEC report. International Business Machines Corporation operates as an integrated technology and services company worldwide. International Business Machines Corporation was founded in 1911 and is headquartered in Armonk, New York. JOHN HANCOCK: Faces Davydov Suit in Southern District of New York ----------------------------------------------------------------- A class action lawsuit has been filed against John Hancock Life Insurance Company of New York. The case is captioned as YURIY DAVYDOV, individually and on behalf of all others similarly situated, Plaintiff v. JOHN HANCOCK LIFE INSURANCE COMPANY OF NEW YORK; and JOHN HANCOCK LIFE INSURANCE COMPANY (U.S.A.), Defendants, Case No. 1:18-cv-09825-AKH (S.D.N.Y., Oct. 24, 2018). The case is assigned to Judge Alvin K. Hellerstein and referred to Magistrate Judge Stewart D. Aaron. John Hancock Life Insurance Company of New York provides retirement plan and life insurance products and services. John Hancock Life Insurance Company of New York was formerly known as The Manufacturers Life Insurance Company of New York and changed its name to John Hancock Life Insurance Company of New York in 2005. The company was founded in 1992 and is based in Valhalla, New York. John Hancock Life Insurance Company of New York operates as a subsidiary of John Hancock Life Insurance Company (U.S.A.). [BN] The Plaintiff is represented by: Joseph R. Santoli, Esq. Stephen John Fearon , Jr. SQUITIERI & FEARON LLP 32 East 57th Street, 12th Floor New York, NY 10022 Telephone: (212) 575-2092 Facsimile: (212) 575-2184 E-mail: josephsantoli@aol.com stephen@sfclasslaw.com JOHNSON & JOHNSON: Arbitration in Remicade Antitrust Suit Junked ---------------------------------------------------------------- The United States District Court for the Eastern District of Pennsylvania issued a Memorandum denying the Defendants' Motion to Compel Individual Arbitration and Stay Proceedings in the case captioned IN RE REMICADE ANTITRUST LITIGATION. This document relates to Direct Purchaser Actions. Civil Action No. 18-cv-00303 (consolidated). (E.D. Pa.). The Plaintiff filed an action on behalf of themselves and a proposed class of direct purchasers of infliximab products asserting claims against the Defendants for violations of federal antitrust statutes, the Sherman Act and Clayton Act. The Plaintiff claims they sustained antitrust injury through overcharges they paid as a result of the Defendants' monopolizing the biologic infliximab drug market and artificially inflating infliximab prices marketwide. LEGAL STANDARD When it is apparent, based on the face of a complaint, and documents relied upon in the complaint, that certain of a party's claims are subject to an enforceable arbitration clause, a motion to compel arbitration should be considered under a Rule 12(b)(6) standard without discovery's delay. Scope of the Arbitration Clause Whether a dispute falls within the scope of an arbitration clause depends upon the relationship between (1) the breadth of an arbitration clause, and (2) the nature of the given claim. Here, the Dispute Resolution section of the Agreement begins with an arbitration provision directing that any controversy or claim arising out of or relating to this agreement shall be resolved by arbitration. The Defendants argue first that the arbitration provision is broad enough to encompass statutory claims, although they are not mentioned, and second, that the jury waiver establishes there can be no doubt that Rochester was aware it was giving up the right to a jury trial. The Restatement of Contracts Section 202 provides guidance that a word changes meaning when it becomes part of a sentence, the sentence when it becomes part of a paragraph. So the Court finds that the word issue in the jury trial waiver does not broaden the scope of arbitrable disputes, and applies only to those disputes arising out of or relating to this agreement. The scope of the class action waiver providing that there shall be no right or authority for any claims to be arbitrated on a class action basis is similarly limited to claims arising out of or relating to this agreement. The arbitration clause does not expressly exempt certain kinds of claims, therefore, only claims arising out of this agreement are subject to arbitration. The Court read the arbitration clause within context, related to the relevant circumstances and the apparent objects the parties were striving to attain and find no intention to include statutory antitrust claims within the scope of arbitrable disputes. Whether Plaintiff's Antitrust Claims Arise Out Of the Agreement The Defendants argue that Plaintiff's antitrust claims must be arbitrated because they would not have standing to sue without having entered the Distributor Agreement, while the Plaintiff argues their statutory claims are not arbitrable because they arise out of the Defendants' Biosimilar Readiness Plan, distinct from the Agreement. It is settled that claims under the Sherman Act are appropriate for arbitration. Here, J&J argues that Rochester's statutory claims are arbitrable because they will, according to the Defendants, need to reference the Distributor Agreement in order to assert their status as direct purchasers. However, the Court find Ford persuasive. The factual relationship test for determining whether a statutory claim is sufficiently related to an agreement to be arbitrable is not done to identify whether the facts in support of the action will implicate the agreement as an item of evidence but to uncover whether an action formally labeled a statutory tort is in essence a breach of contract claim or based on a breach of contract. Neither party has alleged or claimed that the Distributor Agreement is integral to the Defendants' anticompetitive conduct. As Plaintiff argues, resolving the antitrust claims will not require interpretation of the Distributor Agreement because the Agreement is irrelevant to the allegations that Defendant undertook anticompetitive conduct to maintain supracompetitive prices for Remicade and block lower-priced competitor biosimilars. For these reasons, the Agreement here is not like the agreement in Simula, which was integral to the anticompetitive conduct at the heart of the Plaintiffs' antitrust claims. It is more like the agreement in CardioNet, separate and distinct from statutory claims. Thus the statutory claims do not arise from the Distributor Agreement and therefore are beyond the scope of arbitrable disputes. The find that Plaintiff's antitrust claims do not arise from their Distributor Agreement with Defendant. J&J's Motion to Compel Arbitration is denied. A full-text copy of the District Court's October 25, 2018 Memorandum is available at https://tinyurl.com/y99krky5 from Leagle.com. ROCHESTER DRUG COOPERATIVE, INC., ON BEHALF OF ITSELF AND ALL OTHERS SIMILARLY SITUATED, Plaintiff, represented by DAVID F. SORENSEN -- dsorensen@bm.net -- BERGER MONTAGUE PC, ANDREW COYNE CURLEY -- acurley@bm.net -- BERGER MONTAGUE PC, ARCHANA TAMOSHUNAS -- atamoshunas@tcllaw.com -- TAUS CEBULASH & LANDAU LLP, BRADLEY J. DEMUTH -- bdemuth@faruqilaw.com -- Faruqi & Faruqi, LLP, DANIEL J. WALKER -- dwalker@bm.net -- BERGER MONTAGUE PC, KARISSA J. SAUDER -- ksauder@bm.net -- BERGER MONTAGUE PC., NEILL WILSON CLARK -- nclark@faruqilaw.com -- FARUQI & FARUQI LLP, PETER R. KOHN -- pkohn@faruqilaw.com -- FARUQI & FARUQI, LLP & ZACHARY D. CAPLAN -- zcaplan@bm.net -- BERGER MONTAGUE PC. JOHNSON & JOHNSON & JANSSEN BIOTECH, INC., the Defendants, represented by ADEEL A. MANGI -- aamangi@pbwt.com -- PATTERSON BELKNAP WEBB & TYLER LLP, ASHLEY E. BASS -- abass@cov.com -- COVINGTON & BURLING LLP, BENJAMIN F. JACKSON -- bjackson@pbwt.com -- PATTERSON BELKNAP WEBB TYLER LLP, GEORGE A. LOBIONDO -- globiondo@pbwt.com -- PATTERSON BELKNAP WEBB & TYLER LLP, JONATHAN H. HATCH -- jhatch@pbwt.com -- PATTERSON BELKNAP WEBB & TYLER LLP, LESLIE E. JOHN -- JOHN BALLARDSPAHR.COM -- BALLARD SPAHR ANDREWS & INGERSOLL LLP, MATTHEW VAHEY -- VAHEYM BALLARDSPAHR.COM -- BALLARD SPAHR, SARA A. ARROW -sarrow@pbwt.com -- PATTERSON BELKNAP WEBB & TYLER LLP, THOMAS O. BARNETT -- tbarnett@cov.com -- COVINGTON & BURLING LLP & WILLIAM F. CAVANAUGH, Jr. -- wfcavanaugh@pbwt.com -- PATTERSON, BELKNAP, WEBB AND TYLER. JOHNSON & JOHNSON: Continues to Defend Contact Lens-Related Suit ---------------------------------------------------------------- Johnson & Johnson 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 in Contact Lens-related suit held a hearing on the motion for class certification in August 2018. In March and April 2015, over 30 putative class action complaints were filed by contact lens patients in a number of courts around the United States against Johnson & Johnson Vision Care, Inc. (JJVCI) and other contact lens manufacturers, distributors, and retailers, alleging vertical and horizontal conspiracies to fix the retail prices of contact lenses. The complaints allege that the manufacturers reached agreements with each other and certain distributors and retailers concerning the prices at which some contact lenses could be sold to consumers. The plaintiffs are seeking damages and injunctive relief. All of the class action cases were transferred to the United States District Court for the Middle District of Florida in June 2015. The plaintiffs filed a consolidated class action complaint in November 2015. In June 2016, the Court denied motions to dismiss filed by JJVCI and other defendants. Discovery is ongoing. In March 2017, the plaintiffs filed a motion for class certification. The court held a hearing on the motion for class certification in August 2018. Johnson & Johnson, together with its subsidiaries, researches and develops, manufactures, and sells various products in the health care field worldwide. Johnson & Johnson was founded in 1885 and is based in New Brunswick, New Jersey. JOHNSON & JOHNSON: Continues to Defend Glucose Test Strips Suit --------------------------------------------------------------- Johnson & Johnson 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 has retained liability involving the LifeScan business prior to the closing of that unit's divestiture. In May 2017, a purported class action was filed in the United States District Court for the Western District of Washington against LifeScan Inc., Johnson & Johnson, other diabetes test strip manufacturers and certain Pharmacy Benefit Managers (PBMs). The complaint alleges that consumers paid inflated prices for glucose monitor test strips as a consequence of undisclosed rebates and other incentives paid by manufacturers to PBMs. The complaint includes RICO, ERISA, and state consumer protection claims. The complaint seeks equitable relief and damages. In November 2017, the case was ordered transferred to United States District Court for the District of New Jersey. The LifeScan business was divested in October 2018 and Johnson & Johnson retained liability that may result from these claims prior to the closing of the divestiture. Johnson & Johnson, together with its subsidiaries, researches and develops, manufactures, and sells various products in the health care field worldwide. Johnson & Johnson was founded in 1885 and is based in New Brunswick, New Jersey. JOHNSON & JOHNSON: Plaintiffs Refile Class Suit in Illinois ----------------------------------------------------------- Johnson & Johnson 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 voluntarily dismissed Illinois class action suit has been refiled. In May 2014, two purported class actions were filed in federal court, one in the United States District Court for the Central District of California and one in the United States District Court for the Southern District of Illinois, against Johnson & Johnson and Johnson & Johnson Consumer Companies, Inc. (now known as Johnson & Johnson Consumer Inc.) (JJCI) alleging violations of state consumer fraud statutes based on nondisclosure of alleged health risks associated with talc contained in JOHNSON'S(R) Baby Powder and JOHNSON'S(R) Shower to Shower (a product no longer sold by JJCI). Both cases seek injunctive relief and monetary damages; neither includes a claim for personal injuries. In October 2016, both cases were transferred to the United States District Court for the District Court of New Jersey as part of a newly created federal multi-district litigation. In July 2017, the Court granted Johnson & Johnson's and JJCI's motion to dismiss one of the cases. In September 2018, the United States Court of Appeals for the Third Circuit affirmed this dismissal. In September 2017, the plaintiff in the second case voluntarily dismissed their complaint. In March 2018, the plaintiff in the second case refiled in Illinois State Court. Johnson & Johnson, together with its subsidiaries, researches and develops, manufactures, and sells various products in the health care field worldwide. Johnson & Johnson was founded in 1885 and is based in New Brunswick, New Jersey. JOHNSON & JOHNSON: Settlement in Blood Reagent Granted Initial OK ----------------------------------------------------------------- Johnson & Johnson 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 in the case entitled, In re Blood Reagent Antitrust Litigation, has granted preliminary approval of the settlement. In June 2009, following the public announcement that Ortho-Clinical Diagnostics, Inc. (OCD) had received a grand jury subpoena from the United States Department of Justice, Antitrust Division, in connection with an investigation that has since been closed, multiple class action complaints were filed against OCD by direct purchasers seeking damages for alleged price fixing. These cases were consolidated for pre-trial purposes in the United States District Court for the Eastern District of Pennsylvania as In re Blood Reagent Antitrust Litigation. OCD was divested in 2014 and Johnson & Johnson retained any liability that may result from these cases. Following the appeal and reversal of its initial grant of a motion for class certification, on remand, the District Court in October 2015 again granted a motion by the plaintiffs for class certification. In July 2017, the Court issued an opinion granting in part and denying in part OCD's motion for summary judgment. The Court granted summary judgment concerning allegations of price fixing in 2005 and 2008, and denied summary judgment concerning allegations of price fixing in 2001. In May 2018, OCD and the plaintiffs reached a settlement on all claims. The court granted preliminary approval of the settlement in July 2018. Johnson & Johnson, together with its subsidiaries, researches and develops, manufactures, and sells various products in the health care field worldwide. Johnson & Johnson was founded in 1885 and is based in New Brunswick, New Jersey. JOHNSON & JOHNSON: Suits over Ethicon Pelvic Mesh Devices Pending ----------------------------------------------------------------- Johnson & Johnson 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 multiple class action suits related to Ethicon's pelvic mesh devices. Claims for personal injury have been made against Ethicon, Inc. (Ethicon) and Johnson & Johnson arising out of Ethicon's pelvic mesh devices used to treat stress urinary incontinence and pelvic organ prolapse. The Company continues to receive information with respect to potential costs and additional cases. Cases filed in federal courts in the United States have been organized as a multi-district litigation in the United States District Court for the Southern District of West Virginia. The Company has settled or otherwise resolved a majority of the United States cases and the costs associated with these settlements are reflected in the Company's accruals. In addition, class actions and individual personal injury cases or claims have been commenced in various countries outside of the United States, including claims and cases in the United Kingdom, the Netherlands and Belgium, and class actions in Israel, Australia and Canada, seeking damages for alleged injury resulting from Ethicon's pelvic mesh devices. In Australia, a trial of class action issues has been completed and a decision is expected in 2018. Johnson & Johnson said, "The Company has established accruals with respect to product liability litigation associated with Ethicon's pelvic mesh products." Johnson & Johnson, together with its subsidiaries, researches and develops, manufactures, and sells various products in the health care field worldwide. Johnson & Johnson was founded in 1885 and is based in New Brunswick, New Jersey. JOHNSON & JOHNSON: XARELTO Suit in Louisiana Court Still Ongoing ---------------------------------------------------------------- Johnson & Johnson 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 In August 2015, two third-party payors filed a purported class action in the United States District Court for the Eastern District of Louisiana against Janssen Research & Development, LLC, Janssen Ortho LLC, Janssen Pharmaceuticals, Inc., Ortho-McNeil-Janssen Pharmaceuticals, Inc. and Johnson & Johnson (as well as certain Bayer entities), alleging that the defendants improperly marketed and promoted XARELTO(R) as safer and more effective than less expensive alternative medications while failing to fully disclose its risks. The complaint seeks damages. No further updates were provided in the Company's SEC report. Johnson & Johnson, together with its subsidiaries, researches and develops, manufactures, and sells various products in the health care field worldwide. Johnson & Johnson was founded in 1885 and is based in New Brunswick, New Jersey. JPMORGAN CHASE: Court Grants Revised Settlement in FX-Related Suit ------------------------------------------------------------------ JPMorgan Chase & Co. 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 has granted final approval of the settlement agreement in Foreign Exchange Investigations and Litigation. The Firm previously reported settlements with certain government authorities relating to its foreign exchange ("FX") sales and trading activities and controls related to those activities. FX-related investigations and inquiries by government authorities, including competition authorities, are ongoing, and the Firm is cooperating with and working to resolve those matters. In May 2015, the Firm pleaded guilty to a single violation of federal antitrust law. In January 2017, the Firm was sentenced, with judgment entered thereafter and a term of probation ending in January 2020. The Department of Labor has granted the Firm a five-year exemption of disqualification that allows the Firm and its affiliates to continue to rely on the Qualified Professional Asset Manager exemption under the Employee Retirement Income Security Act ("ERISA") until January 2023. The Firm will need to reapply in due course for a further exemption to cover the remainder of the ten-year disqualification period. Separately, in February 2017 the South Africa Competition Commission referred its FX investigation of the Firm and other banks to the South Africa Competition Tribunal, which is conducting civil proceedings concerning that matter. The Firm is also one of a number of foreign exchange dealers named as defendants in a class action filed in the United States District Court for the Southern District of New York by U.S.-based plaintiffs, principally alleging violations of federal antitrust laws based on an alleged conspiracy to manipulate foreign exchange rates (the "U.S. class action"). In January 2015, the Firm entered into a settlement agreement in the U.S. class action. Following this settlement, a number of additional putative class actions were filed seeking damages for persons who transacted FX futures and options on futures (the "exchanged-based actions"), consumers who purchased foreign currencies at allegedly inflated rates (the "consumer action"), participants or beneficiaries of qualified ERISA plans (the "ERISA actions"), and purported indirect purchasers of FX instruments (the "indirect purchaser action"). Since then, the Firm has entered into a revised settlement agreement to resolve the consolidated U.S. class action, including the exchange-based actions. The Court granted final approval of that settlement agreement in August 2018. Certain members of the settlement class have filed requests to the Court to be excluded from the class. The District Court has dismissed one of the ERISA actions, and the United States Court of Appeals for the Second Circuit affirmed that dismissal in July 2018. The District Court has also dismissed the indirect purchaser action, and the plaintiffs have sought leave to replead their complaint. The consumer action and a second ERISA action remain pending in the District Court. JPMorgan Chase & Co. operates as a financial services company worldwide. It operates through four segments: Consumer & Community Banking, Corporate & Investment Bank, Commercial Banking, and Asset & Wealth Management. JPMorgan Chase & Co. was founded in 1799 and is headquartered in New York, New York. JPMORGAN CHASE: Seeks Initial Approval of Interchange Case Accord ----------------------------------------------------------------- JPMorgan Chase & Co. 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 parties to the class action seeking monetary relief have finalized an agreement which amends and supersedes the prior settlement agreement, and the plaintiffs have filed a motion seeking preliminary approval of the modified settlement. A group of merchants and retail associations filed a series of class action complaints alleging that Visa and MasterCard, as well as certain banks, conspired to set the price of credit and debit card interchange fees and enacted respective rules in violation of antitrust laws. The parties settled the cases for a cash payment, a temporary reduction of credit card interchange, and modifications to certain credit card network rules. In December 2013, the District Court granted final approval of the settlement. A number of merchants appealed the settlement to the United States Court of Appeals for the Second Circuit, which, in June 2016, vacated the District Court's certification of the class action and reversed the approval of the class settlement. In March 2017, the U.S. Supreme Court declined petitions seeking review of the decision of the Court of Appeals. The case was remanded to the District Court for further proceedings consistent with the appellate decision. The original class action was divided into two separate actions, one seeking primarily monetary relief and the other seeking primarily injunctive relief. In September 2018, the parties to the class action seeking monetary relief finalized an agreement which amends and supersedes the prior settlement agreement, and the plaintiffs filed a motion seeking preliminary approval of the modified settlement. This settlement provides for the defendants to contribute an additional $900 million to the approximately $5.3 billion currently held in escrow from the original settlement. Upon preliminary approval by the District Court, $600 million of that additional amount will be funded from the litigation escrow account established under the Visa defendants' Retrospective Responsibility Plan, and $300 million will be paid by Mastercard and certain banks in accordance with an agreement among themselves regarding their respective shares. In June 2018, Visa deposited an additional $600 million into its litigation escrow account, which in turn led to a corresponding change in the conversion rate of Visa Class B to Class A shares. Of the Mastercard-related portion, the Firm's share is approximately $36 million. The class action seeking primarily injunctive relief continues separately. In addition, certain merchants have filed individual actions raising similar allegations against Visa and Mastercard, as well as against the Firm and other banks, and those actions are proceeding. JPMorgan Chase & Co. operates as a financial services company worldwide. It operates through four segments: Consumer & Community Banking, Corporate & Investment Bank, Commercial Banking, and Asset & Wealth Management. JPMorgan Chase & Co. was founded in 1799 and is headquartered in New York, New York. JUNO THERAPEUTICS: Class Plaintiffs Can File Over-Length Motions ---------------------------------------------------------------- In the case, In re JUNO THERAPEUTICS, INC., Case No. C16-1069RSM (W.D. Wash.), Judge Ricardo S. Martinez of the U.S. District Court for the Western District of Washington, Seattle, granted in part Class Plaintiffs Gilbert Nguyen and Susan Tan's unopposed motion pursuant to LCR 7(f) for leave to file two over-length motions. The Plaintiffs seek 20 pages of briefing for both a motion for final approval of the settlement and a motion for attorneys' fees. Both motions would normally be limited to 12 pages under LCR 7(e)(4). The Plaintiffs cite as good cause the following: first, that the case involves complex facts involving alleged statements, misstatements, and/or omissions concerning clinical trials for cancer treatments; and second, because the Ninth Circuit case law sets forth multi-factored tests for district courts to use in evaluating whether to approve (1) class-action settlements, and (2) fee requests. Judge Martinez finds that the Plaintiffs have established good cause to add pages to their motion for final approval of settlement, but have failed to establish good cause for the attorneys' fees motion. Although the case may have an unusually complex fact pattern, the standards for granting fees are not particularly unique or onerous in the case, and it is the Court's experience that skilled counsel can make the arguments they need to make in 12 pages. For these reasons, the Judge granted in part and denied in part the Plaintiffs' unopposed motion for leave to file two over-length motions. He granted the Plaintiffs leave to file up to 20 pages for their forthcoming motion for final approval of the settlement and plan of distribution. He urged the Plaintiffs to stick as close to the original 12 page limit as possible. Any brief in opposition is automatically allowed an equal number of pages. The Judge denied the motion to file an overlength motion regarding attorney's fees. A full-text copy of the Court's Oct. 16, 2018 Order is available at https://is.gd/JvvwRP from Leagle.com. Man Nguyen, Movant, represented by Clifford A. Cantor. Gilbert Hoang Nguyen, Movant, represented by Jeremy A. Lieberman -- jalieberman@pomlaw.com -- POMERANATZ LLP, pro hac vice, Joseph Alexander Hood, II -- ahood@pomlaw.com -- POMERANTZ LLP, pro hac vice, Leigh Handelman Smollar -- lsmollar@pomlaw.com -- POMERANTZ LLP, pro hac vice, Omar Jafri -- ojafri@pomlaw.com -- POMERANTZ LLP, pro hac vice & Clifford A. Cantor. Goce Veljanoski, Plaintiff, represented by Janissa Ann Strabuk -- jstrabuk@tousley.com -- TOUSLEY BRAIN STEPHENS, Jeffrey C. Block -- jeff@blockesq.com -- BLOCK & LEVITON LLP, pro hac vice, Joel Fleming -- joel@blockesq.com -- BLOCK & LEVITON LLP, pro hac vice & Kim D. Stephens -- kstephens@tousley.com -- TOUSLEY BRAIN STEPHENS. Liberata Paradisco, individually and on behalf of all others similarly situated, Plaintiff, represented by Duncan Calvert Turner -- duncanturner@badgleymullins.com -- BADGLEY MULLINS TURNER PLLC. Gilbert Hoang Nguyen, Plaintiff, represented by Patrick V. Dahlstrom -pdahlstrom@pomlaw.com -- POMERANTZ LLP, pro hac vice & Clifford A. Cantor. Susan Tan, Plaintiff, pro se. Juno Therapeutics Inc, Hans E Bishop, individually and on behalf of the marital community, Steven D. Harr & Mark J. Gilbert, Defendants, represented by Daniel Slifkin -- dslifkin@cravath.com -- CRAVATH SWAINE & MOORE, pro hac vice, Drew Liming -- dliming@wsgr.com -- WILSON SONSINI GOODRICH & ROSATI, pro hac vice, Ignacio E. Salceda -- Isalcedo@wsgr.com -- WILSON SONSINI GOODRICH & ROSATI, pro hac vice, Joni Ostler -- jostler@wsgr.com -- WILSON SONSINI GOODRICH & ROSATI, pro hac vice, Karin A. DeMasi -- kdemasi@cravath.com -- CRAVATH SWAINE & MOORE, pro hac vice, Lauren M. Rosenberg -- lrosenberg@cravath.com -- CRAVATH SWAINE & MOORE, pro hac vice, Morgan J. Cohen, CRAVATH SWAINE & MOORE, pro hac vice, Nina F. Locker -- NLocker@wsgr.com -- WILSON SONSINI GOODRICH & ROSATI, pro hac vice & Gregory Lewis Watts -- Gwatts@wsgr.com -- WILSON SONSINI GOODRICH & ROSATI. KPMG LLP: Court Denies Bid to Dismiss Jones Suit ------------------------------------------------ Judge Louis Guirola, Jr. of the U.S. District Court for the Southern District of Mississippi, Southern Division, denied KMPG's Motion to Dismiss the case, THOMAS JONES, JOSEPH CHARLES LOHFINK, SUE BEAVERS, RODOLFOA REL, and HAZEL REED THOMAS, on behalf of themselves and others similarly situated, Plaintiffs, and MARTHA EZELL LOWE, individually and on, behalf of a class of similarly situated employees, Consolidated Plaintiff, v. KPMG LLP and TRANSAMERICA RETIREMENT SOLUTIONS CORP., Defendants, Cause No. 1:17CV319-LG-RHW (S.D. Miss.). The putative class action arose out of the alleged under-funding of the Singing River Health System Employees' Retirement Plan and Trust. Lowe has sued KPMG, the company that audited the annual financial statements of Singing River Health System ("SRHS") and the Plan. Lowe alleges that KPMG was either aware of the fact that SRHS had stopped contributing to the Plan, or in the alternative, it recklessly disregarded the fact that SRHS had made no contribution to the pension plan since 2009. The Plaintiff alleges that despite this knowledge, KPMG's audit report for 2011 attributed SRHS's growing pension liability to a downturn in investment returns and a change in actuarial assumptions rather than SRHS' failure to make the required payments to the pension plan. Lowe also alleges that KPMG provided consulting services related to the $70 million purchase of a new electronic record retention system that allegedly contributed to SRHS' inability to fund the Plan. The sole claim against KPMG is that it knowingly participated in and/or aided and abetted in a breach of fiduciary duty by the Individual Trustees in its 2010 and 2011 audit reports by allowing or failing to correct misleading statements that attributed the Trust's under-funding to returns on investments and changed actuarial assumptions. KPMG challenges the legal sufficiency of the claim, arguing that 1) no Mississippi court has ever recognized a claim of aiding and abetting breach of fiduciary duty; 2) even if there were such a claim, the plaintiff's allegations of KPMG's inaction do not rise to the level of aiding and abetting liability; and 3) in any event, the claim is barred by Mississippi's three-year statute of limitations. The Plaintiff responds that her claim should be construed as an aiding and abetting breach of trust claim, which Mississippi common law recognizes. She further argues that the applicable limitations period for her claim is one year from her receipt in November 2014 of a memo sent to plan participants, as set out in the Mississippi Uniform Trust Code. Judge Guirola has considered all of the parties' arguments. He finds that those not specifically addressed would not have changed the outcome. He assumes that Mississippi would recognize a cause of action for aiding and abetting breach of fiduciary duty under Restatement (Second) of Torts Section 876(b). Lowe has sufficiently alleged a timely cause of action for aiding and abetting breach of fiduciary duty against KPMG. Therefore, the Motion to Dismiss is denied. A full-text copy of the Court's Oct. 16, 2018 Memorandum Opinion and Order is available at https://is.gd/rKxNFW from Leagle.com. Thomas Jones, on behalf of themselves and others similarly situated, Joseph Charles Lohfink, on behalf of themselves and others similarly situated, Sue Beavers, on behalf of themselves and others similarly situated, Rodolfoa Rel, on behalf of themselves and others similarly situated & Hazel Reed Thomas, on behalf of themselves and others similarly situated, Plaintiffs, represented by David G. Wirtes, Jr. -- DGW@CUNNINGHAMBOUNDS.COM -- CUNNINGHAM BOUNDS, LLC, George W. Finkbohner, III -- GWF@CUNNINGHAMBOUNDS.COM -- CUNNINGHAM BOUNDS, LLC, pro hac vice, James R. Reeves, Jr., REEVES & MESTAYER, PLLC, Lucy Elizabeth Tufts -- LET@CUNNINGHAMBOUNDS.COM -- CUNNINGHAM BOUNDS, LLC, pro hac vice, Matthew G. Mestayer, REEVES & MESTAYER, PLLC, Steven L. Nicholas -- SLN@CUNNINGHAMBOUNDS.COM -- CUNNINGHAM BOUNDS, LLC, pro hac vice & Leilani Leith Tynes, REEVES & MESTAYER, PLLC. Martha Ezell Lowe, individually and on behalf of a class of similarly situated employees, Consol Plaintiff, represented by Angelique M. Cooper, A. COOPER, ATTORNEY AT LAW, LLC, pro hac vice, Joe R. Whatley, Jr. -- jwhatley@whatleykallas.com -- WHATLEY KALLAS, LLP, Richard P. Rouco , QUINN, CONNOR, WEAVER, DAVIES & ROUCO, LLP, pro hac vice, Roger K. Doolittle , ROGER K. DOOLITTLE, ATTORNEY & James R. Reeves, Jr., REEVES & MESTAYER, PLLC. KPMG, LLP, Defendant, represented by Amelia Toy Rudolph -- amyrudolph@eversheds-sutherland.com -- EVERSHEDS SOUTHERLAND (US) LLP, pro hac vice, Patricia Anne Gorham -- patriciagorham@eversheds-sutherland.com -- EVERSHEDS SOUTHERLAND (US) LLP, pro hac vice, R. David Kaufman -- dkaufman@brunini.com -- BRUNINI, GRANTHAM, GROWER & HEWES, PLLC & Taylor B. McNeel -- tmcneel@brunini.com -- BRUNINI, GRANTHAM, GROWER & HEWES, PLLC. Transamerica Retirement Solutions Corporation, Defendant, represented by Armin J. Moeller, Jr. -- amoeller@balch.com -- BALCH & BINGHAM, LLP, Ashley Eley Cannady -- acannady@balch.com -- BALCH & BINGHAM, LLP, Marianne Hogan, MORGAN, LEWIS & BOCKIUS, LLP, pro hac vice & William J. Delany, MORGAN, LEWIS & BOCKIUS, LLP, pro hac vice. LANDERS MCLARTY: Court Narrows Claims in Wilson Suit ---------------------------------------------------- The United States District Court for the District of Kansas issued a Memorandum and Order granting in part and denying in part Defendants' Motion to Dismiss Plaintiff's First Amended Class Action Complaint in the case captioned MELVIN WILSON, Plaintiff, v. LANDERS McLARTY OLATHE KS, LLC d/b/a OLATHE DODGE CHRYSLER JEEP RAM, et al., Defendants. Case No. 18-2051-JAR-GEB. (D. Kan.). Plaintiff Melvin Wilson brings this putative class action against Defendants Landers McLarty Olathe KS, LLC, d/b/a Olathe Dodge Chrysler Jeep Ram (Olathe Dodge) and Hopkins and Raines, Inc. (HRI), relating to advertising mailers Olathe Dodge sent to Plaintiff and other similarly situated consumers. Plaintiff alleges claims under the Racketeer Influenced and Corrupt Organizations Act (RICO) and Kansas Consumer Protection Act (KCPA). The Plaintiff alleges two causes of action: (1) Count One, for deceptive acts and practices and for unconscionable acts and practices, in violation of the KCPA; and (2) Count Two, for violating RICO. He seeks damages in excess of $75,000. Motion to Dismiss RICO Claim for Failure to State a Claim Standard To survive a motion to dismiss brought under Fed. R. Civ. P. 12(b)(6), a complaint must contain factual allegations that, assumed to be true, raise a right to relief above the speculative level and must include enough facts to state a claim for relief that is plausible on its face. Under this standard, the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims. RICO created a private right of action to vindicate a person's right to avoid injury to business or property caused by a pattern of racketeering activity. To maintain a private cause of action under 18 U.S.C. Section1964(c), a plaintiff must plead and ultimately prove, inter alia, that the defendant violated Section 1962. Section 1962(c) makes it unlawful for a person employed by or associated with an enterprise to conduct the enterprise's affairs through a pattern of racketeering activity. To maintain a private right of action based on a violation of Section 1962(c), the plaintiff must plausibly allege' that the defendants each (1) conducted the affairs (2) of an enterprise (3) through a pattern (4) of racketeering activity. Here, the Plaintiff alleges that under Section 1962(c), the Defendants belong to an association-in-fact enterprise that has engaged in a scheme to defraud consumers for purposes of enriching themselves by sending out mailers purporting to guarantee prizes and other consumer prizes on Olathe Dodge's property. As to the pattern element of his RICO claim, the Plaintiff alleges that the Defendants engaged in an intentional scheme to defraud consumers, most recently from July 13 to 22, 2017, by creating and executing an advertising campaign with fraudulent and false promises on a mailer for a sale at Defendant Landers as described in specificity in Paragraphs 19-29 of this Amended Complaint. The Defendants engaged in a series of similar schemes to defraud or deceive consumers from at least March, 2010 (when the Johnson County District Attorney sued Defendant Landers over a deceptive mailer) to July 22, 2017, which establishes a pattern of racketeering activity and mail fraud. On a motion to dismiss, the Court may not address facts not included in the operative pleading. Therefore, the Court must disregard the Plaintiff's assertions about the scale of Olathe Dodge's business, and its annual revenue. But even if the Court considers the facts about Olathe Dodge's commercial success, the Plaintiff fails to explain how they show a threat of continuous conduct. The mail fraud alleged here occurred over a closed period of time between June 13-22, 2017. By any measure, this is not a substantial period of time, and the Supreme Court was clear that such predicate acts without threats of future conduct will not suffice. There are no facts alleged in the Amended Complaint demonstrating a threat of repetition. The Supreme Court has suggested that a Plaintiff may show continuity by demonstrating that the predicate acts are a regular way of conducting defendant's ongoing legitimate business or of conducting or participating in an ongoing and legitimate RICO enterprise. But the alleged facts do not show that the mailers, which were sent over several days in June 2017, constitute a regular way of conducting Olathe Dodge's business. At best, the alleged facts show that on two occasions seven years apart, Olathe Dodge used advertising mailers to promote its business. This falls short of demonstrating a regular way of conducting business. Moreover, the Plaintiff fails to plausibly explain how the Olathe Dodge employee's alleged comment that the Attorney General approved the mailer indicates a specific threat of future criminal conduct Because Plaintiff fails to allege facts sufficient to state a plausible claim of continuity, his RICO claim must be dismissed. Motion to Dismiss KCPA Claim for Lack of Jurisdiction The Defendant contends that if the RICO claim is dismissed, only supplemental jurisdiction would remain over the KCPA claim and the Court should decline to exercise such jurisdiction. However, in the Amended Complaint Plaintiff asserts diversity jurisdiction under 28 USC Section 1332(a)(1). Diversity jurisdiction requires complete diversity of citizenship between the parties, and an amount in controversy in excess of $75,000. Complete diversity is lacking when any of the plaintiffs has the same residency as even a single defendant. Here, the Plaintiff alleges that he is domiciled in Kansas, HRI is domiciled in Texas, and Olathe Dodge is domiciled in Arkansas. He also alleges the amount in controversy exceeds $75,000. Because Plaintiff asserts sufficient facts to support diversity jurisdiction over the KCPA claim in this matter, the Court need not exercise supplemental jurisdiction over that claim, and Defendants' jurisdictional challenge is therefore denied. Defendants Olathe Dodge and HRI's Motion to Dismiss Count 2 of the Complaint and to Strike Class Allegations is granted in part and denied in part. The motion to dismiss is granted as to Count 2 under RICO and denied as to Count 1 under the KCPA. A full-text copy of the District Court's October 29, 2018 Memorandum and Order is available at https://tinyurl.com/yb952u8q from Leagle.com. Melvin Wilson, Plaintiff, represented by Ashley Scott Waddell, Waddell Law Firm, LLC & Paul H. Mose -- Pablo@moselaw.com -- Rebein Brothers PA. Landers McLarty Olathe KS, LLC, doing business as Olathe Dodge Chrysler Jeep Ram, Defendant, represented by Hillary Hyde -- hhyde@mwcattorneys.com -- Morrow Willnauer Church, LLC, Jacob L. Kurtz, Case Linden, PC, James Christian Morrow -- jmorrow@mwcattorneys.com -- Morrow Willnauer Church, LLC & Patric S. Linden, Case Linden, PC. Hopkins and Raines Inc., Defendant, represented by James Christian Morrow. LEGACY PARTNERS: Underpays Maintenance Technicians, Suit Says ------------------------------------------------------------- RAUL ACEVES, and FRANCISCO ALCAZAR, individually and on behalf of all others similarly situated, Plaintiffs v. LEGACY PARTNERS, INC.; and DOES 1 through 50, inclusive, Defendants, Case No. 18CV336963 (Cal. Super., Santa Clara Cty., Oct. 24, 2018) is an action against the Defendants for failure to pay minimum wages, overtime compensation, authorize and permit meal and rest periods, and provide itemized wage statements. The Plaintiffs were employed by the Defendants as maintenance technicians. Legacy Partners, Inc. is a principal investment firm which provides commercial and residential real estate services. It offers property acquisition, development, and management. The company has offices in San Francisco, Los Angeles, Irvine and San Diego, California; Phoenix, Arizona; Denver, Colorado; and Seattle, Washington. It was formerly known as Lincoln Property Company N.C., Inc. Legacy Partners was founded in 1965 and is headquartered in Foster City, California. [BN] The Plaintiffs are represented by: Ashley N. Pellouchoud, Esq. Robert W. Ottinger, Esq. THE OTTINGER FIRM, P.C. 535 Mission Street San Francisco, CA 94105 Telephone: (415) 262-0096 Facsimile: (212) 571-0505 E-mail: ashley@ottingerlaw.com robert@ottingerlaw.com LEGACY RESERVES: Court Approves Doppelt Settlement in Full ---------------------------------------------------------- Legacy Reserves Inc. said in its Form 20-F report filed with the U.S. Securities and Exchange Commission on October 31, 2018, for the fiscal year ended September 1, 2018, that the Court overseeing the Doppelt consolidated class action lawsuit has entered an order and final judgment approving the Settlement Agreement in full. On March 28, 2018, a purported holder of Legacy LP's Preferred Units filed a putative class action challenging the Merger against Legacy LP, the General Partner and Legacy Inc. (the "Doppelt Action"). The Doppelt Action contained two causes of action challenging the Merger, including breach of the Fifth Amended and Restated Agreement of Limited Partnership of Legacy LP (the "Partnership Agreement") and breach of the implied covenant of good faith and fair dealing. The plaintiff in the Doppelt Action sought injunctive relief prohibiting consummation of the Merger or, in the event the Merger is consummated, rescission or rescissory damages, as well as reasonable attorneys' and experts' fees and expenses. Additionally, on April 4, 2018, a motion to expedite was filed in connection with the Doppelt Action, by which the plaintiff sought a hearing on a motion for a preliminary injunction prior to the close of the Merger and requested that the court set an expedited discovery schedule prior to any such hearing. The plaintiff in the Doppelt Action also filed a lawsuit against Legacy LP and the General Partner in 2017 for breach of the Partnership Agreement based on the treatment of the accrued but unpaid preferred distributions as "guaranteed payments" for tax purposes (the "Doppelt Tax Action"). A second putative class action lawsuit challenging the Merger was filed on April 3, 2018, against Legacy LP, the General Partner and Legacy Inc. (the "Chammah Ventures Action"). The Chammah Ventures Action contained the same causes of action and that plaintiff sought substantially the same relief as the plaintiff in the Doppelt Action. On April 13, 2018, the Court issued an order consolidating the Doppelt and Chammah actions (together, the "Consolidated Action") and appointing Plaintiff Doppelt as lead plaintiff and his counsel as lead counsel for the putative class action. On April 13, 2018, the Court also granted the motion to expedite the consolidated action. On April 23, 2018, Plaintiff Doppelt filed an Amended Complaint, adding an additional count for breach of the Partnership Agreement. A hearing on Plaintiff's motion for a preliminary injunction and Legacy's motion to dismiss occurred on June 4, 2018. A third putative class action lawsuit challenging the Merger was filed against Legacy LP, the General Partner, Legacy Inc. and Merger Sub on April 27, 2018, by Patrick Irish in the District Court in Midland County, Texas (the "Irish Action"). The Irish Action contained the same general causes of action as the initial complaint filed in the Consolidated Action and sought the same relief. On June 22, 2018, Legacy LP, Legacy Inc., the General Partner and the plaintiff in the Consolidated Action reached an agreement in principle to settle the Consolidated Action. The parties submitted the Settlement Agreement to the Court on July 6, 2018. On September 12, 2018, the Court held a settlement fairness hearing, during which it considered (i) the fairness of the Settlement Agreement; (ii) whether a judgment should be entered dismissing the Consolidated Action with prejudice; (iii) the plaintiff's counsel's application for fees and expenses; and (iv) any objections to the Settlement Agreement. Following the hearing, the Court entered an order and final judgment (the "Final Order") approving the Settlement Agreement in full. The Final Order granted holders of Series A Preferred Units and Series B Preferred Units approximately 10,730,000 shares of common stock in Legacy Inc. in addition to the approximately 16,913,592 shares those holders would collectively receive pursuant to the exchange ratios that were included in the initial merger agreement. In exchange, the class of holders of Preferred Units (dating back to January 21, 2016 through the consummation of the Merger) agreed to release Legacy LP, the General Partner and Legacy Inc., and any of their parent entities, controlling persons, associates, affiliates, including any person or entity owning, directly or indirectly, any portion of the General Partner, or subsidiaries and each and all of their respective officers, directors, stockholders, employees, representatives, advisors, consultants and other released parties, from liability for any claims related to or arising out of the rights inhering to the Preferred Units (subject to limited exceptions related to tax liabilities), including all claims brought in the Consolidated Action. As part of the Settlement Agreement, the Doppelt Tax Action was also dismissed with prejudice. Each of the administrative agent for the Credit Agreement and the majority lenders under the Term Loan Credit Agreement consented to the terms of the Settlement Agreement, as required pursuant to the terms of the Credit Agreement and the Term Loan Credit Agreement, respectively. The deadline for any appeal of the Final Order to be filed expired on October 12, 2018. Additionally, on September 20, 2018, the plaintiff in the Irish Action voluntarily dismissed his action with prejudice as a result of the entry of the Final Order. Legacy Reserves Inc. operates as an energy company. The Company focuses on development, production, and acquisition of oil and natural gas properties. Legacy Reserves serves customers in the United States. The company. is based in Midland, Texas. LJM PARTNERS: Owes for 80% Loss to Fund, Class Suit Says -------------------------------------------------------- Bree Gonzales, writing for Cook County Record, reports that a Florida man alleges the trading strategy of a Chicago corporation and an introducing broker caused an 80 percent loss in a partnership earlier this year. Barney C. Guttman filed a complaint on behalf of himself and all persons similarly situated, on Oct. 10 in Cook County Circuit Court against LJM Partners LTD, Pacific Futures and Capital LLC, alleging breach of fiduciary duty, breach of contract and other counts. According to the complaint, the plaintiff alleges he invested $350,000 to acquire an interest in the PFC-LJM Fund LP and had a total investment in the partnership of approximately $1 million as of Jan. 31. The suit states defendant LJM and Pacific Futures and Capital LLC are general partners and founders of the partnership. The suit states on Feb. 5 and Feb. 6, the partnership lost 80 percent of its value. The plaintiff alleges the defendants employed a highly aggressive trading strategy that exposed the partnership of the risk of volatility. instead of a carefully hedged strategy as marketed. The plaintiff alleges the defendants misled the plaintiff as to the actual trading strategy of the PFC-LJM Fund. The plaintiff requests a trial by jury and seeks certifying this class action, awarded damages in favor of plaintiff and the class jointly and severally and costs and expenses including counsel and expert fees. He is represented by Michael J. Freed, Esq. -- mfreed@fklmlaw.com -- William H. London, Esq. -- blondon@fklmlaw.com -- and Brian M. Hogan, Esq. -- bhogan@fklmlaw.com -- of Freed Kanner London & Millen LLC in Bannockburn. Cook County Circuit Court case number 2018CH12701 [GN] LOUISIANA: Class Action Lawsuit Seeks Compensation -------------------------------------------------- Amber Smith, writing for brproud, reports that a class action lawsuit filed in St. James Parish seeks financial compensation for those affected by the Sunshine Bridge closure. Last October 12, crane on top of a barge hit the Sunshine Bridge. Upon further inspection, the Louisiana Department of Transportation and Development discovered the estimated cost for repairs to be around $5 million. Crews are set to begin repair work. In the meantime, the bridge remains closed. That has caused the estimated 25,000 people who used to travel the bridge daily to find an alternate route, often doubling or even tripling their commutes. White Castle resident Charles Jones was waiting in line for the Plaquemine Ferry. He said it has been taking him two hours to get from White Castle to Port Allen. That's a trip he said he needs to take every morning. In addition to the extra commute time, residents are complaining that the closure is costing them more money for gas. "I put $40 in this morning and $40 again this afternoon," Jones said. The Marvin Gros Law Firm filed a lawsuit on October 15 against the companies involved. The owner of Donaldsonville Glass and Body Works and the owner of First and Last Chance restaurant are listed as plaintiffs on the lawsuit, as well as any and all persons and/or businesses who use the Sunshine Bridge. "We know that the officials here didn't cause the damage to the bridge, but whoever did, they should be held responsible," Assumption Parish resident Mable Parker said. Attorney Martin Maley, Esq. warns it will be an uphill battle. A precedent set back in 1927 makes it difficult to win the case, but Maley said he will try nonetheless. Robins Dry Dock Repair v. Flint set the precedent that economic damages cannot be awarded without physical evidence of damage to that plaintiff's personal property. A spokesperson with the LaDOTD said the department will be seeking legal action for the money the department will have to spend on repairs.[GN] MARCUS & MILLICHAP: Cox Suit Remanded to State Court ---------------------------------------------------- Judge William F. Jung of the U.S. District Court for the Middle District of Florida, Tampa Division, remanded the case, THE ESTATE OF SHIRLEY T. COX, by and through Betty M. Smith as personal representative, JOHN E. BALLEW, by and through Judith A. Ballew as attorney-in-fact, and THE ESTATE OF ROGER J. LAPP, by and through Mark F. Lapp as personal representative, Plaintiffs, v. MARCUS & MILLICHAP, INCORPORATED and MICHAEL BOKOR, Defendants, Case No. 8:18-cv-381-T-02AAS (M.D. Fla.), to the Thirteenth Judicial Circuit, in and for Hillsborough County, Florida. The case was timely removed from state court on Feb. 14, 2018, by Defendant Michael Bokor. Defendant Marcus & Millichap, Inc. ("MMI") joined in the removal. The removal was based on the Class Action Fairness Act of 2005, ("CAFA"). The complaint alleges a class of 3,000 members, actual losses in excess of $900 million, and the class members' citizenship as Florida and Defendant MMI's citizenship as Delaware or California. The action alleges that both the Defendants were part of a scheme to market and sell twenty-two skilled nursing facilities in Florida that they knew were operating with invalid licenses. MMI is a highly sophisticated real estate and business broker with much of its business directed to seniors housing investment properties. Bokor has worked in the seniors housing industry for more than ten years ranging from CFO in the Avante Group to an operator of multiple nursing home management companies. The facilities at issue are marketed as a portfolio managed by TL Management, LLC, a Florida LLC with its principal place of business in New York. TL Management is owned and managed by two individuals, Eliezer Scheiner and Teddy Lichtschein. The individuals owned, either jointly or individually, the real and personal property of the facilities. The complaint refers to the facilities' ownership structure by the individuals as the "landowner entities." These landowner entities allegedly operated as a common enterprise, together with Bokor's two management companies, SNF Management, Inc. and Reliant Health Care Services, Inc., as well as TL Management. The common enterprise allegedly aimed to increase the profit of the facilities at the expense of the health and welfare of the residents, including Plaintiffs and the Class members. The residents suffered from substandard levels of daily care, which placed their health at risk. The facilities were allegedly each operated by a licensed Medicaid provider. The landowner entities, however, controlled the licenses, certifications, and certificates of need for the facilities through lease agreements. As part of the various schemes, the Plaintiffs allege undercapitalized shell entities were formed to evade reporting requirements and obtain licenses. The shell entity licensees used either Bokor's two management companies or TL Managemen to run the facilities without disclosing the companies to the Agency for Health Care Administration. The Plaintiffs claim the purpose of concealment was to defraud residents to receive payments and reimbursements from them and Medicaid or Medicare despite the facilities' operating under void licenses. The five-count complaint alleges two counts against MMI for aiding and abetting breach of fiduciary duties to the residents and civil remedies for criminal practices, two counts against Bokor for the same two claims, and one count against both for civil conspiracy. The facilities are located solely in Florida. Although, as the Defendants point out, some of the studies may not focus specifically on Florida, Judge Jung finds that the data concerning nursing homes nationwide, together with the specific Florida studies, is sufficient to attribute citizenship to the putative class in Florida. Faced with the persuasive submissions of the Plaintiffs, who carry the burden of proof of the exception to the CAFA, he finds that the Plaintiffs have shown by a preponderance of the evidence that two-thirds of the class members are citizens of Florida. Comparing the relief sought between MMI and Bokor, the Florida Defendant, the Jduge finds that there is no evidence that Bokor is any less or more significant with respect to liability. Indeed, the alleged scheme was meted out by equal wrongdoers. Nor is there anything that would indicate that Bokor with his various entities is any less capable of paying a potential judgment than MMI. Whether Bokor forms a "significant basis" as opposed to MMI for the Plaintiffs' claims, again, rests on the alleged scheme that contemplates each Defendant as equally culpable. Hence, remand is warranted under the local controversy exception. As to discretionary exception under 28 U.S.C. Section 1332(d)(3), the Judge finds that the matter is purely local and is not one considered of national importance. The claims will be governed by the laws of Florida and were not pled to avoid federal jurisdiction. There is a distinct nexus between the Florida action involving only Florida facilities, and the alleged torts committed and injuries sustained. No the other class actions asserting these claims have been brought in the preceding three years. Finally, having already determined that the Plaintiffs met their burden of proving an exception to CAFA applies, the Judge will deny the motion for discovery. For these reasons, Judge Jung (i) denied the Plaintiffs' Opposed Motion for Leave to Conduct Limited Jurisdictional Discovery; (ii) granted the Plaintiffs' Motion to Remand; (iii) denied as moot the Plaintiffs' Motion to Stay and to Extend the Time for Moving for Class Certification. 4) The Clerk is directed to remand the case to the Thirteenth Judicial Circuit, in and for Hillsborough County, Florida, and to close the case after remand is effected. A full-text copy of the Court's Oct. 16, 2018 Order is available at https://is.gd/jzjv5T from Leagle.com. Betty M. Smith, as personal representative of the estate of Shirley T. Cox, Judith A. Ballew, Attorney-in-Fact of John E. Ballew & Mark F. Lapp, as personal representative of the estate of Roger J. Lapp, Plaintiffs, represented by James L. Wilkes, II -- james@wilkesmchugh.com -- Wilkes & McHugh, PA & Rainey Cawthon Booth, Jr. -- rbooth@wilkesmchugh.com -- Wilkes & McHugh, PA. Marcus & Millichap, Incorporated, Defendant, represented by Allan Joseph -- ajoseph@fidjlaw.com -- Fuerst Ittleman David & Joseph, PL, Christopher M. David -- cdavid@fidj.com -- Fuerst Ittleman David & Joseph, PL & Michael B. Kornhauser -- mkornhauser@fidjlaw.com -- Fuerst Ittleman David & Joseph, PL. Michael Bokor, Defendant, represented by Diana Nicole Evans -- dnevans@bradley.com -- Bradley Arant Boult Cummings LLP, Michael R. Pennington -- mpennington@bradley.com -- Bradley, Arant, Boult & Cummings, LLP & Zachary A. Madonia -- zmadonia@bradley.com -- Bradley, Arant, Boult & Cummings, LLP. MASSACHUSETTS: Trial Court Sued over Unpaid Wages & Overtime ------------------------------------------------------------ WILLIAM DONAHUE, on behalf of Himself and other similarly situated, the Plaintiff, vs. THE TRIAL COURT OF THE COMMONWEALTH OF MASSACHUSETTS (OR THE ADMINISTRATOR THEREOF), the Defendants, Case No.: 18-3386G (Mass. Super. Ct., Oct. 19, 2018), seeks to recover unpaid wages and overtime under the Fair Labor Standards Act. According to the complaint, the Trial Court has not paid Mr. Donahue and other court officers, associate court officers and probation officers wages and overtime compensation. Such amounts have been due but remain unpaid. The Trial Court has recorded the overtime hours but simply has refused to pay. No plaintiff ever consented in any way to the withholding of overtime or regular compensation, the lawsuit says.[BN] Attorneys for Plaintiff: Christopher J. Trombetta, Esq. LAW OFFICE OF CHRISTOPHER J. TROMBETTA 121 North Main Street, Suite 12 Mansfield, MA 02048 Telephone: (508) 339-5900 Telephone: (508) 339-3111 E-mail: chris@trombettalaw.com MATIMEX CORPORATION: Walsh Sues over Unwanted Text Messages ----------------------------------------------------------- MICHAEL WALSH, individually and on behalf of all others similarly situated, the Plaintiff, vs. MATIMEX CORPORATION, a Florida corporation, the Defendant, Case No. 1:18-cv-24520-CMA (S.D. Fla., Oct. 29, 2018), seeks to stop Defendant's practice of sending unauthorized and unwanted text messages to consumers promoting its realty brokerage services, and to obtain redress for all persons similarly injured by its conduct in violation of the Telephone Consumer Protection Act. According to the complaint, Defendant's conduct caused Plaintiff and putative members of the Class to suffer actual harm, including the aggravation, nuisance, loss of time, and invasions of privacy that result from the receipt of such text messages, lost value of cellular services paid for, and a loss of the use and enjoyment of their phones, including wear and tear to their phones' data, memory, software, hardware, and battery components, among other harms, the lawsuit says. Matimex Corporation is engaged in real estate agents and managers business.[BN] Counsel for Plaintiff Michael Walsh and all others similarly situated: Avi R. Kaufman, Esq. KAUFMAN P.A. 400 NW 26th Street Miami, FL 33127 Telephone: (305) 469-5881 E-mail: kaufman@kaufmanpa.com MCDERMOTT INT'L: Unit Faces Cantrell Class Suit in Texas -------------------------------------------------------- McDermott International, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 30, 2018, for the quarterly period ended September 30, 2018, that the company's subsidiary is facing a class action suit entitled, Cantrell v. Lutech Resources, Inc. A former employee of one of the company's subsidiaries commenced a class action lawsuit under the Fair Labor Standards ACT ("FLSA") entitled Cantrell v. Lutech Resources, Inc., (S.D. Texas 2017) Case No. 4:17-CV-2679 on or about September 5, 2017, alleging that he and his fellow class members were not paid one and one half times their normal hourly wage rates for hours worked that exceeded 40 hours in a work week. The company's subsidiary has yet to answer the allegations in the complaint, as agreed by the parties, in order to allow mediation to take place. The first mediation session commenced in October 2018 and is ongoing. McDermott International said, "We do not believe a risk of material loss is probable related to this matter, and, accordingly, our reserves were not significant at September 30, 2018. While it is possible that a loss may be incurred, we are unable at this time, to estimate the range of potential loss, if any." McDermott International, Inc. provides engineering, procurement, construction and installation, front-end engineering and design, and module fabrication services for upstream field developments. It operates through three segments: the Americas, Europe and Africa; the Middle East; and Asia. McDermott International, Inc. was founded in 1923 and is headquartered in Houston, Texas. MDL 1720: Approval of New Interchange Fee Case Settlement Pushed ---------------------------------------------------------------- Citigroup Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 30, 2018, for the quarterly period ended September 30, 2018, that the plaintiffs purporting to act on behalf of the putative class primarily seeking damages (the Damages Class) moved on September 18, 2018, for preliminary approval of a proposed amended settlement agreement that supersedes the original settlement agreement as of October 19, 2012 to resolve claims of the Damages Class in IN RE PAYMENT CARD INTERCHANGE FEE AND MERCHANT DISCOUNT ANTITRUST LITIGATION. Additional information regarding this matter is publicly available under the docket number MDL 05-1720 (E.D.N.Y.) (Brodie, J.). Citigroup Inc., a diversified financial services holding company, provides various financial products and services for consumers, corporations, governments, and institutions. The company operates through two segments, Global Consumer Banking (GCB) and Institutional Clients Group (ICG). The company operates in North America, Latin America, Asia, Europe, the Middle East, and Africa. Citigroup Inc. was founded in 1812 and is based in New York, New York. MDL 2724: Court Disposes of Group 1 Dismissal Bids -------------------------------------------------- In the case, IN RE: GENERIC PHARMACEUTICALS PRICING ANTITRUST LITIGATION. THIS DOCUMENT RELATES TO: IN RE: CLOBETASOL CASES All Direct Purchaser, End-Payer, and Indirect Reseller Actions IN RE: DIGOXIN CASES All Direct Purchaser, End-Payer, and Indirect Reseller Actions IN RE: DIVALPROEX ER CASES All Direct Purchaser, End-Payer, and Indirect Reseller Actions IN RE: DOXYCYCLINE CASES All Direct Purchaser, End-Payer, and Indirect Reseller Actions IN RE: ECONAZOLE CASES All Direct Purchaser, End-Payer, and Indirect Reseller Actions IN RE: PRAVASTATIN CASES All Direct Purchaser, End-Payer, and Indirect Reseller Actions, Case Nos. MDL 2724, 16-MD-2724, Nos. 16-CB-27240, 16-CB-27241, 16-CB-27242, 16-CB-27243, Nos 16-DG-27240, 16-DG-27241,16-DG-27242, 16-DG-27243, Nos. 16-DV-27240, 16-DV-27241,16-DV-27242, 16-DV-27243, Nos. 16-DX-27240, 16-DV-27241,16-DX-27242, 16-DX-27243, Nos. 16-EC-27240, 16-EC-27241,16-EC-27242, 16-EC-27243, Nos. 16-PV-27240, 16-PV-27241,16-PV-27242, 16-PV-27243 (E.D. Pa.), Judge Cynthia M. Rufe of the U.S. District Court for the Eastern District of Pennsylvania has issued an order disposing of Group 1 Motions to Dismiss to the extent that they seek to dismiss the Sherman Act claims brought by the Group 1 Direct Purchaser Plaintiffs ("DPPs"), End-Payer Plaintiffs ("EPPs"), and Indirect Reseller Plaintiffs ("IRPs"). A. Clobetasol Actions: 1. Defendants' Joint Motion to Dismiss the DPPs' Class Action Complaint is denied; 2. Defendants' Joint Motion to Dismiss the EPPs' Class Action Complaint is denied to the extent that it seeks to dismiss the first count of the clobetasol EPPs' Class Action Complaint; 3. Defendants' Joint Motion to Dismiss the IRPs' Class Action Complaint is denied to the extent that it seeks to dismiss the first count of the clobetasol IRPs' Class Action Complaint; 4. Defendants Wockhardt USA LLC's and Morton Grove Pharmaceuticals, Inc.'s Individual Motion to Dismiss the DPPs', EPPs', and IRPs' Class Action Complaints is denied to the extent that it seeks to dismiss the Sherman Act claims brought by the Group 1 clobetasol DPPs, EPPs, and IRPs; 5. Defendants Akorn, Inc.'s and Hi-Tech Pharmacal Co., Inc.'s Individual Motion to Dismiss the DPPs', EPPs', and IRPs' Class Action Complaints is denied to the extent that it seeks to dismiss the Sherman Act claims brought by the Group 1 clobetasol DPPs, EPPs, and IRPs; 6. Defendant Perrigo New York Inc.'s Individual Motion to Dismiss the DPPs', EPPs', and IRPs' Class Action Complaintsis denied to the extent that it seeks to dismiss the Sherman Act claims brought by the Group 1 clobetasol DPPs, EPPs, and IRPs. 7. Defendants Actavis Holdco U.S., Inc.'s and Actavis Pharma, Inc.'s Individual Motion to Dismiss the DPPs', EPPs', and IRPs' Class Action Complaints is denied to the extent that it seeks to dismiss the Sherman Act claims brought by the Group 1 clobetasol DPPs, EPPs, and IRPs. B. Digoxin Actions 1. Defendants' Joint Motion to Dismiss the DPPs' Class Action Complaint is denied; 2. Defendants' Joint Motion to Dismiss the EPPs' Class Action Complaint is denied to the extent that it seeks to dismiss the first count of the digoxin EPPs' Class Action Complaint; 3. Defendants' Joint Motion to Dismiss the IRPs' Class Action Complaint is denied; to the extent that it seeks to dismiss the first count of the digoxin IRPs' Class Action Complaint; 4. Defendant West-Ward Pharmaceuticals Corp.'s Individual Motion to Dismiss the Class Action Complaints is denied to the extent that it seeks to dismiss the Sherman Act claims brought by the Group 1 digoxin DPPs, EPPs, and IRPs; 5. Defendant Impax Laboratories, Inc.'s Individual Motion to Dismiss the DPPs', EPPs', and IRPs' Class Action Complaints is denied to the extent that it seeks to dismiss the Sherman Act claims brought by the Group 1 digoxin DPPs, EPPs, and IRPs; 6. Defendant Par Pharmaceutical Inc.'s Individual Motion to Dismiss the DPPs', EPPs', and IRPs' Class Action Complaints is denied to the extent that it seeks to dismiss the Sherman Act claims brought by the Group 1 digoxin DPPs, EPPs, and IRPs; 7. Defendants Mylan Inc.'s and Mylan Pharmaceuticals Inc.'s Individual Motion to Dismiss the DPPs', EPPs', and IRPs' Class Action Complaints is denied to the extent that it seeks to dismiss the Sherman Act claims brought by the Group 1 digoxin DPPs, EPPs, and IRPs. C. Divalproex ER Actions 1. Defendants' Joint Motion to Dismiss the DPPs' Class Action Complaint is denied; 2. Defendants' Joint Motion to Dismiss the EPPs' Class Action Complaint is denied to the extent that it seeks to dismiss the first count of the divalproex ER EPPs' Class Action Complaint; 3. Defendants' Joint Motion to Dismiss the IRPs' Consolidated Class Action Complaint is denied to the extent that it seeks to dismiss the first count of the divalproex ER IRPs' Class Action Complaint; 4. Defendants Dr. Reddy's Laboratories, Inc.'s and Zydus Pharmaceuticals [USA], Inc.'s Individual Motion to Dismiss the DPPs', EPPs', and IRPs' Class Action Complaints is denied to the extent that it seeks to dismiss the Sherman Act claims brought by the Group 1 divalproex ER DPPs, EPPs, and IRPs; 5. Defendants Mylan Inc.'s and Mylan Pharmaceuticals Inc.'s Individual Motion to Dismiss the DPPs', EPPs', and IRPs' Class Action Complaints is denied to the extent that it seeks to dismiss the Sherman Act claims brought by the Group 1 divalproex ER DPPs, EPPs, and IRPs. D. Doxycycline Actions 1. Defendants' Joint Motion to Dismiss the DPPs' Class Action Complaint is denied; 2. Defendants' Joint Motion to Dismiss the EPPs' Class Action Complaint is denied to the extent that it seeks to dismiss the first count of the doxycycline EPPs' Class Action Complaint; 3. Defendants' Joint Motion to Dismiss the IRPs' Class Action Complaint is denied to the extent that it seeks to dismiss the first count of the doxycycline IRPs' Class Action Complaint; 4. Defendant Mayne Pharma Inc.'s Individual Motion to Dismiss the DPPs', EPPs', and IRPs' Class Action Complaints is denied to the extent that it seeks to dismiss the Sherman Act claims brought by the Group 1 doxycycline DPPs, EPPs, and IRPs; 5. Defendant West-Ward Pharmaceuticals Corp.'s Individual Motion to Dismiss the DPPs', EPPs', and IRPs' Class Action Complaints is denied to the extent that it seeks to dismiss the Sherman Act claims brought by the Group 1 doxycycline DPPs, EPPs, and IRPs; 6. Defendant Par Pharmaceutical, Inc.'s Individual Motion to Dismiss the DPPs', EPPs', and IRPs' Class Action Complaints is denied to the extent that it seeks to dismiss the Sherman Act claims brought by the Group 1 doxycycline DPPs, EPPs, and IRPs; 7. Defendants Mylan Inc.'s and Mylan Pharmaceuticals Inc.'s Individual Motion to Dismiss the DPPs', EPPs', and IRPs' Class Action Complaints is denied to the extent that it seeks to dismiss the Sherman Act claims brought by the Group 1 doxycycline DPPs, EPPs, and IRPs; 8. Defendant Actavis Holdco U.S., Inc.'s and Actavis Pharma, Inc.'s Individual Motion to Dismiss the DPPs', EPPs', and IRPs' Class Action Complaints is denied to the extent that it seeks to dismiss the Sherman Act claims brought by the Group 1 doxycycline DPPs, EPPs, and IRPs. E. Econazole Actions 1. Defendants' Joint Motion to Dismiss the DPPs' Class Action Complaint is denied; 2. Defendants' Joint Motion to Dismiss the EPPs' Class Action Complaint is denied to the extent that it seeks to dismiss the first count of the econazole EPPs' Class Action Complaint; 3. Defendants' Joint Motion to Dismiss the IRPs' Class Action Complaint is denied to the extent that it seeks to dismiss the first count of the econazole IRPs' Class Action Complaint; 4. Defendant Teligent, Inc.'s Individual Motion to Dismiss the DPPs', EPPs', and IRPs' Class Action Complaints is granted. The Sherman Act claims of the econazole DPPs, EPPs, and IRPs against Defendant Teligent are dismissed without prejudice. Econazole Plaintiffs may seek leave to amend their Sherman Act claims against Teligent pursuant to the provisions of Pretrial Order No. 51. F. Pravastatin Actions 1. Defendants' Joint Motion to Dismiss the DPPs' Class Action Complaint is denied; 2. Defendants' Joint Motion to Dismiss the EPPs' Class Action Complaint is denied to the extent that it seeks to dismiss the first count of the pravastatin EPPs' Class Action Complaint; 3. Defendants' Joint Motion to Dismiss the IRPs' Class Action Complaint is denied to the extent that it seeks to dismiss the first count of the pravastatin IRPs' Class Action Complaint; 4. Apotex Corp.'s Individual Motion to Dismiss the DPPs', EPPs', and IRPs' Class Action Complaints is denied to the extent that it seeks to dismiss the Sherman Act claims brought by the Group 1 pravastatin DPPs, EPPs, and IRPs. 5. Glenmark Pharmaceuticals, Inc. USA's Individual Motion to Dismiss the DPPs', EPPs', and IRPs' Class Action Complaints is denied to the extent that it seeks to dismiss the Sherman Act claims brought by the Group 1 pravastatin DPPs, EPPs, and IRPs. 6. Sandoz Inc.'s Individual Motion to Dismiss the DPPs', EPPs', and IRPs' Class Action Complaints is denied to the extent that it seeks to dismiss the Sherman Act claims brought by the Group 1 pravastatin DPPs, EPPs, and IRPs. A full-text copy of the Court's Oct. 16, 2018 Order is available at https://is.gd/bx3jrf from Leagle.com. DEFENSE LIAISON COUNSEL, Defendant, represented by CHUL PAK -- cpak@wsgr.com -- WILSON SONSINI GOODRICH & ROSATI PC, JAN P. LEVINE -- levinej@pepperlaw.com -- PEPPER HAMILTON LLP, LAURA S. SHORES -- laura.shores@arnoldporter.com -- ARNOLD & PORTER KAYE SCHOLER LLP, SAUL P. MORGENSTERN -- saul.morgenstern@arnoldporter.com -- ARNOLD & PORTER KAYE SCHOLER LLP & SHERON KORPUS -- skorpus@kasowitz.com -- KASOWITZ BENSON TORRES LLP. DIRECT PURCHASER PLAINTIFFS PSC, Plaintiffs, represented by DAVID F. SORENSEN -- dsorensen@bm.net -- BERGER & MONTAGUE, P.C., DIANNE M. NAST -- dnast@nastlaw.com -- NASTLAW LLC, LINDA P. NUSSBAUM -- lnussbaum@nussbaumpc.com -- NUSSBAUM LAW GROUP PC, MICHAEL L. ROBERTS -- mlr@alabamatortlaw.com -- ROBERTS LAW FIRM, ROBERT N. KAPLAN -- rkaplan@kaplanfox.com -- KAPLAN FOX & KILSHEIMER, LLP, THOMAS M. SOBOL -- tom@hbsslaw.com -- HAGENS BERMAN SOBOL SHAPIRO LLP & ROBERTA D. LIEBENBERG -- mail@finekaplan.com -- FINE, KAPLAN AND BLACK. END-PAYER PLAINTIFFS PSC, Plaintiffs, represented by ADAM J. ZAPALA -- azapala@cpmlegal.com -- COTCHETT PITRE & MCCARTHY LLP, BONNY SWEENEY -- bsweeney@hausfeld.com -- HAUSFELD LLP, DENA C. SHARP -- Dena Sharp -- GIRARD GIBBS LLP, ELIZABETH JOAN CABRASER -- ecabraser@lchb.com -- LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP, GREGORY S. ASCIOLLA -- gasciolla@labaton.com -- LABATON SUCHAROW LLP, HEIDI M SILTON -- hmsilton@locklaw.com -- LOCKRIDGE GRINDAL NAUEN PLLP, JAMES R. DUGAN, II, THE DUGAN LAW FIRM, JAYNE A. GOLDSTEIN, SHEPHERD FINKELMAN MILLER & SHAH LLP, JOSEPH R. SAVERI -- jsaveri@saverilawfirm.com -- JOSEPH SAVERI LAW FIRM, MICHAEL M. BUCHMAN -- mbuchman@motleyrice.com -- MOTLEY RICE LLC & MINDEE J. REUBEN -- mreuben@litedepalma.com -- LITE DEPALMA GREENBERG LLC. INDIRECT RESELLERS PSC, Plaintiffs, represented by DANIEL S. MASON, FURTH SALEM MASON & LI LLP, ELIZABETH TIPPING -- info@nealharwell.com -- NEAL & HARWELL, PLC, FRANCIS O. SCARPULLA -- fos@scarpullalaw.com -- LAW OFFICES OF FRANCIS O. SCARPULLA & JONATHAN W. CUNEO -- jonc@cuneolaw.com -- CUNEO GILBERT & LADUCA LLP. INDIRECT RESELLERS PSC, plaintiffs represented by DON BARRETT -- donbarrettpa@gmail.com -- BARRETT LAW OFFICES. STATE ATTORNEYS GENERAL, Plaintiffs, represented by W. JOSEPH NIELSEN, ATTORNEY GENERAL'S OFFICE, LAURA JOHNSON MARTELLA, ATTORNEY GENERAL'S OFFICE, MAX M. MILLER, OFFICE OF THE ATTORNEY GENERAL OF IOWA, ROBERT L. HUBBARD, ATTORNEY GENERAL OF NEW YORK, TIMOTHY M. FRASER, FL OFFICE OF THE ATTORNEY GENERAL & WADE ELLIS BEAVERS, OFFICE OF THE NEVADA ATTORNEY GENERAL. DAVID H. MARION, Special Master, pro se. BRUCE P. MERENSTEIN, Special Master, pro se. LINDA D. PERKINS, Special Master, pro se. UNITED STATES OF AMERICA, Intervenor, represented by ANDREW J. EWALT, U.S. DEPT OF JUSTICE, ELLEN R. CLARKE, U.S. DEPT OF JUSTICE, JAY OWEN, U.S. DEPT OF JUSTICE, JOSEPH C. FOLIO, III, U.S. DEPT OF JUSTICE & RYAN J. DANKS, U.S. DEPARTMENT OF JUSTICE ANTITTRUST DIVISION. MDL 2862: Emma vs. BASF AG et al. over Isocyanate Sales Moved ------------------------------------------------------------- EMMA CHEMICALS CO., INC., individually and on behalf of all those similarly situated, the Plaintiff, vs. BASF AG; BASF CORP.; BAYER AG; BAYER CORP., COVESTRO AG; COVESTRO LLC; DOWDUPONT INC.; DOW CHEMICAL CO.; HUNTSMAN CORP.; HUNTSMAN INTERNATIONAL LLC.; LANXESS AG, LANXESS CO.; MCNS POLYURETHANES USA INC.; MITSUI CHEMICALS, INC.; MITSUI CHEMICALS AMERICA, INC.; MITSUI CHEMICALS & SKC POLYURETHANES, INC.; WANHUA CHEMICAL GROUP CO., LTD.; WANHUA CHEMICAL (AMERICA) CO. LTD.; WANHUA CHEMICAL US HOLDING, INC., the Defendants, Case No.: 2:18-cv-02958, was transferred from the U.S. District Court for the the Eastern District of Pennsylvania, to the U.S. District Court Western District of Pennsylvania (Pittsburgh). The Western District of Pennsylvania Court Clerk assigned Case No. 2:18-cv-01427-DWA-LPL to the proceeding on Oct. 14, 2018. The case is assigned to the Hon. Judge Donetta W. Ambrose. The case is being consolidated with MDL 2862 in re: DIISOCYANATES ANTITRUST LITIGATION. The MDL was created by Order of the United States Judicial Panel on Multidistrict Litigation on Oct. 3, 2018. The MDL Panel find that these actions involve common questions of fact, and that centralization will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation. All actions share complex factual questions arising from allegations that defendants engaged in a conspiracy to fix, raise, maintain, or stabilize the price of methylene diphenyl diisocyanate (MDI) and toluene diisocyanate (TDI) sold in the United States, from early 2015 or 2016 through the present, including through 3 agreements to limit supply of MDI and TDI through planned manufacturing shutdowns at plants worldwide and implementing coordinated price increases. The record indicates that discovery is likely to be international in scope and will include a significant number of nonparties. Centralization will eliminate duplicative discovery; prevent inconsistent pretrial rulings, especially with respect to class certification and Daubert motions; and conserve the resources of the parties, their counsel and the judiciary. In its Oct. 3 Order, the MDL Panel concludes that the Western District of Pennsylvania is an appropriate transferee forum. One defendant has its U.S. headquarters in this district, and five other defendants have their headquarters in adjacent or nearby districts. Relevant documents and witnesses therefore are likely to be located in or close to this area. Nearly all responding defendants agree that the Western District of Pennsylvania is an appropriate venue, along with plaintiffs in one action on the motion and one potential tag-along action. Judge Donetta W. Ambrose is an experienced transferee judge with the ability and willingness to manage this litigation efficiently. "We are confident she will steer this matter on a prudent course," the Panel says.[BN] Counsel for Plaintiff Emma Chemicals Co., Inc. and the Proposed Class: Linda P. Nussbaum, Esq. Bart D. Cohen, Esq. Fred T. Isquith, Jr., Esq. NUSSBAUM LAW GROUP, P.C. 1211 Avenue of the Americas, 40th Floor New York, NY 10036-8718 Telephone: (917) 438-9102 E-mail: lnussbaum@nussbaumpc.com bcohen@nussbaumpc.com fisquith@nussbaumpc.com METRO-GOLDWYN-MAYER: Johnson Suit Settlement Has Final Approval --------------------------------------------------------------- In the case, MARY L. JOHNSON, individually and on behalf of all others similarly situated, Plaintiff, v. METRO-GOLDWYN-MAYER STUDIOS INC., AND TWENTIETH CENTURY FOX HOME ENTERTAINMENT, LLC, Defendants, Case No. C17-541RSM (W.D. Wash.), Judge Ricardo S. Martinez of the U.S. District Court for the Western District of Washington, Seattle, (i) granted the Plaintiff's Unopposed Motion for Final Approval of Stipulation and Agreement of Settlement and Final Certification of the Settlement Class, and (ii) granted in part the Plaintiff's Unopposed Motion for Attorneys' Fees and Expenses and Named Plaintiff Enhancement Award. The Defendants marketed several James Bond DVD and Blu-ray boxsets as containing "all the Bond films" and "every gorgeous girl, nefarious villain and charismatic star." However, the boxsets did not include two James Bond movies -- Casino Royale and Never Say Never Again. The Plaintiff relied on the advertising, but did not receive the product she was led to believe she purchased. Accordingly, the Plaintiff instituted the action on behalf of a nationwide class of consumers, alleging a violation of Washington's Consumer Protection Act, breach of express warranties, and breach of the implied warranty of merchantability. The Plaintiff originally filed suit in Washington's King County Superior Court and Defendants removed the action to the Court on April 7, 2017. Thereafter, the Court partially granted the Defendants' motion to dismiss, dismissing the claim for breach of the implied warranty of merchantability, dismissing the Defendants' corporate parents, and granting the Plaintiff leave to amend. The Plaintiff filed an amended complaint that re-alleged the dismissed claims and claims against the corporate parents. This prompted the parties to mediate, stipulate to dismissal of the corporate parents, and ultimately reach a preliminary settlement which the Court approved. The settlement entitles the approximately 300,000 class members to digital copies of the two films that were omitted from the original boxsets upon making a valid claim. If a class member attests that the class member does not have the capability to use digital copies, physical DVDs will be provided. To submit a valid claim, the class members must fill out a claim form and submit proof of purchase. The Settlement Administrator approved relief for 6431 claims. Of those claims, 278 were initially submitted without valid proof of purchase, but the Settlement Administrator was instructed to deem the claims valid. Under the settlement, the Defendants also agree to alter their use of "all" and "every" with regard to future marketing of James Bond movie collections. The settlement agreement provides that the Defendants will not oppose or submit any evidence or argument challenging or undermining an application by the Class Counsel for attorneys' fees, costs, or expenses in an amount not to exceed $350,000. The Class Counsel seeks attorneys' fees and costs in the amount of $350,000 ($334,690.56 in fees and $15,309.44 in expenses). The Plaintiff also seeks approval of a $5,000 award to the class representative. No class members have opted-out of the settlement or objected to the settlement or the Motion for Fees. Judge Martinez concludes that the case demonstrates a common dissatisfaction with class actions: small relief for the class and big attorneys' fees for the class counsel. He believes that basing the Class Counsel's attorneys' fee award off of a portion of the amount actually claimed by the class would better align the interests of the class and the Class Counsel. The interests of the class and the Class Counsel were simply not aligned. The Class Counsel accepted compensation of an uncertain value and agreed to claim procedures that likely resulted in fewer claims. At the same time, the Class Counsel removed any incentive they had to assure high class participation by insulating their fee from the benefit obtained for the class. However, the Judge finds that the recovery provided for in the case does not lend itself to a percentage-ofrecovery calculation and he is left with the lodestar method to calculate attorneys' fees. While reductions appropriately decreased the lodestar amount to $184,665, the award still seems unreasonably large relative to the relief obtained for the class. But the case does not warrant continued action and he takes solace in the hope that all things being equal, it seems more defensible that the class attorneys, rather than the Defendants, receive the excess, as they will likely reinvest it in future class action cases. Making adjustments to the amount requested by the Plaintiff, the Judge will award total costs of $12,159.37. And finding that some award is appropriate on account of the Plaintiff's involvement with the action, he will accordingly award the Plaintiff an incentive payment of $1,500. For all these reasons, Judge Martinez granted hte Plaintiff's Unopposed Motion for Final Approval of Stipulation and Agreement of Settlement and Final Certification of the Settlement Class. He approved the Stipulation and Agreement of Settlement. The Judge certified, consistent with the Stipulation and Agreement of Settlement, the settlement class defined as all persons and entities (and their successors-in-interest, assigns, and heirs) in the United States that purchased one or more of the James Bond Sets prior to Jan. 31, 2018. He granted in part the Plaintiff's Unopposed Motion for Attorneys' Fees and Expenses and Named Plaintiff Enhancement Award. He awarded (i) attorneys' fees in the amount of $184,665; (ii) costs in the amount of $12,159.37; (iii) the named plaintiff in the amount of $1,500. The matter is now closed. A full-text copy of the Court's Oct. 16, 2018 Order is available at https://is.gd/p0qb3k from Leagle.com. Mary L. Johnson, individually and on behalf of all others similarly situated, Plaintiff, represented by Alan J. Statman -- ajstatman@statmanharris.com -- STATMAN, HARRIS & EYRICH, LLC, pro hac vice, Alexander Sether Kleinberg -- akleinberg@eisenhowerlaw.com -- EISENHOWER & CARLSON & Sylvie Derrien -- sderrien@statmanharris.com -- STATMAN, HARRIS & EYRICH, LLC, pro hac vice. Metro-Goldwyn-Mayer Studios, Inc & Twentieth Century Fox Home Entertainment, LLC, Defendants, represented by Ariel Green -- Ariel.Green@mto.com -- MUNGER TOLLES & OLSON, pro hac vice, John S. Devlin, III -- devlinj@lanepowell.com -- LANE POWELL PC & Tamerlin J. Godley -- Tamerlin.Godley@mto.com -- MUNGER TOLLES & OLSON, pro hac vice. MONITRONICS INT'L: Pays Remaining $23,000,000 in Telemarketing Suit ------------------------------------------------------------------- Monitronics International, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 6, 2018, for the quarterly period ended September 30, 2018, that in the third quarter of 2018, the Company paid the remaining $23,000,000 of the settlement amount in the consolidated telemarketing-class action related suit. The Company was named as a defendant in multiple putative class actions consolidated in U.S. District Court (Northern District of West Virginia) on behalf of purported class(es) of persons who claim to have received telemarketing calls in violation of various state and federal laws. The actions were brought by plaintiffs seeking monetary damages on behalf of all plaintiffs who received telemarketing calls made by a Brinks Home Security Authorized Dealer, or any Authorized Dealer's lead generator or sub-dealer. In the second quarter of 2017, the Company and the plaintiffs agreed to settle this litigation for $28,000,000 ("the Settlement Amount"). In the third quarter of 2017, the Company paid $5,000,000 of the Settlement Amount pursuant to the settlement agreement with the plaintiffs. In the third quarter of 2018, the Company paid the remaining $23,000,000 of the Settlement Amount. The Company is actively seeking to recover the Settlement Amount under its insurance policies held with multiple carriers. On November 1, 2018, the company settled its claim against one such carrier in which the carrier agreed to pay the company $9,750,000 in the fourth quarter of 2018. Monitronics International said, "This amount will be recognized in the consolidated statement of operations at such time. We continue to seek to recover additional funds under our insurance policies from the remaining carriers." Monitronics International, Inc., together with its subsidiaries, provides security alarm monitoring and related services to residential and commercial customers in the United States, District of Columbia, Canada, and Puerto Rico. The company operates through two segments, MONI and LiveWatch. The company was founded in 1994 and is headquartered in Farmers Branch, Texas. Monitronics International, Inc. is a subsidiary of Ascent Capital Group, Inc. MONSANTO COMPANY: Brunson Sues over Sale of Herbicide Roundup ------------------------------------------------------------- SARAH C. BRUNSON, the Plaintiffs, v. MONSANTO COMPANY, the Defendant, Case No. 4:18-cv-01843 (E.D. Mo., Oct. 29, 2018), seeks to recover damages suffered by Plaintiff, as a direct and proximate result of the Defendant's negligent and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, advertising, distribution, labeling, and/or sale of the herbicide Roundup (TM), containing the active ingredient glyphosate. The Plaintiffs maintain that Roundup (TM) and/or glyphosate is defective, dangerous to human health, unfit and unsuitable to be marketed and sold in commerce, and lacked proper warnings and directions as to the dangers associated with its use. The Plaintiff's injuries, like those striking thousands of similarly situated victims across the country, were avoidable. The Plaintiffs bring this action for personal injuries sustained by exposure to Roundup (TM), which contains the active ingredient glyphosate and the surfactant polyethoxylated tallow amine (POEA). As a direct and proximate result of being exposed to Roundup, the Plaintiff developed diffuse Non-Hodgkin's Lymphoma. Roundup refers to all formulations of Defendant's Roundup products, including, but not limited to, Roundup Concentrate Poison Ivy and Tough Brush Killer 1, Roundup Custom Herbicide, Roundup D-Pak Herbicide, Roundup Dry Concentrate, Roundup Export Herbicide, Roundup Fence & Hard Edger 1, Roundup Garden Foam Weed & Grass Killer, Roundup Grass and Weed Killer, Roundup Herbicide, Roundup Original 2k Herbicide, Roundup Original II Herbicide, Roundup Pro Concentrate, Roundup Pro Dry Herbicide, and Roundup Promax.[BN] The Plaintiffs are represented by: Seth S. Webb #51236 BROWN & CROUPPEN, P.C. 211 North Broadway, Suite 1600 St. Louis, MO 63102 Telephone: (314) 222-2222 Facsimile: (314) 421-0359 E-mail: sethw@getbc.com MONSANTO COMPANY: Kathryn Hill Sues over Herbicide Roundup Sales ---------------------------------------------------------------- KATHRYN L. HILL, the Plaintiffs, v. MONSANTO COMPANY, the Defendant, Case No. 4:18-cv-01852 (E.D. Mo., Oct. 29, 2018), seeks to recover damages suffered by Plaintiff, as a direct and proximate result of the Defendant's negligent and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, advertising, distribution, labeling, and/or sale of the herbicide Roundup (TM), containing the active ingredient glyphosate. The Plaintiffs maintain that Roundup (TM) and/or glyphosate is defective, dangerous to human health, unfit and unsuitable to be marketed and sold in commerce, and lacked proper warnings and directions as to the dangers associated with its use. The Plaintiff's injuries, like those striking thousands of similarly situated victims across the country, were avoidable. The Plaintiffs bring this action for personal injuries sustained by exposure to Roundup (TM), which contains the active ingredient glyphosate and the surfactant polyethoxylated tallow amine (POEA). As a direct and proximate result of being exposed to Roundup, the Plaintiff developed diffuse Non-Hodgkin's Lymphoma. Roundup refers to all formulations of Defendant's Roundup products, including, but not limited to, Roundup Concentrate Poison Ivy and Tough Brush Killer 1, Roundup Custom Herbicide, Roundup D-Pak Herbicide, Roundup Dry Concentrate, Roundup Export Herbicide, Roundup Fence & Hard Edger 1, Roundup Garden Foam Weed & Grass Killer, Roundup Grass and Weed Killer, Roundup Herbicide, Roundup Original 2k Herbicide, Roundup Original II Herbicide, Roundup Pro Concentrate, Roundup Pro Dry Herbicide, and Roundup Promax.[BN] The Plaintiffs are represented by: Seth S. Webb No. 51236 BROWN & CROUPPEN, P.C. 211 North Broadway, Suite 1600 St. Louis, MO 63102 Telephone: (314) 222-2222 Facsimile: (314) 421-0359 E-mail: sethw@getbc.com MSG HOLDINGS: Fraticelli FLSA/NYLL Suit Settlement Has Approval --------------------------------------------------------------- In the case, CHRISTOPHER FRATICELLI, individually and on behalf of other persons similarly situated who were employed by MSG HOLDINGS, L.P. and THE MADISON SQUARE GARDEN COMPANY and/or any other entities affiliated with or controlled by MSG HOLDINGS, L.P. and THE MADISON SQUARE GARDEN COMPANY, Plaintiff, v. MSG HOLDINGS, L.P. and THE MADISON SQUARE GARDEN COMPANY, and/or any other entities affiliated with or controlled by MSG HOLDINGS, L.P. and THE MADISON SQUARE GARDEN COMPANY, Defendants, Case No. 13 Civ. 6518 (HBP) (S.D. N.Y.), Magistrate Judge Henry Pitman of the U.S. District Court for the Southern District of New York granted the parties' joint application to approve their settlement. Plaintiffs Oritt Blum, Scott Winter, Kristin Slattery, Fernando Herrera and Chris Fraticelli commenced the action pursuant to the Fair Labor Standards Act ("FLSA"), and the New York Labor Law ("NYLL"), to recover unpaid minimum wages and overtime premium pay. The Plaintiffs worked for the Defendants as unpaid interns in various departments and allege that they were uniformly misclassified by defendants as exempt from the federal and state minimum wage and overtime requirements. The Plaintiffs seek to recover, among other things, unpaid wages, attorneys' fees and liquidated damages pursuant to the FLSA and NYLL. The Defendants deny the Plaintiffs' claims and maintain that the Plaintiffs were properly classified as exempt under the trainee exception to the FLSA and, thus, are not owed any damages. The Plaintiffs moved three separate times for conditional certification of the FLSA collective pursuant to 29 U.S.C. Section 216(b); however, the Hon. Jesse M. Furman, United States District Judge, denied this motion on May 7, 2014 and Magistrate Judge Pitman signed denied it on Dec. 10, 2015 and again on July 2, 2018. The parties thereafter reached a settlement with respect to named Plaintiffs Blum, Winter, Slattery, Herrera and Fraticelli only. The Named Plaintiffs' total alleged damages, exclusive of attorneys' fees and costs, are $5,751. The parties memorialized the terms of the settlement in a written settlement agreement. Under the proposed Settlement Agreement, the Defendants agree to pay a net settlement amount of $5,414 -- $667 being paid to Blum, $593 being paid to Winter, $542 being paid to Slattery, $209 being paid to Herrera and $3,403 being paid to Fraticelli. The Settlement Agreement further provides that the Defendants will pay to the Plaintiffs' Counsel such fees/expenses approved by the Court, not to exceed $50,000. The Magistrate Judge explains that in determining whether a proposed FLSA settlement is fair and reasonable, a court should consider the totality of circumstances, including but not limited to the following factors: (1) the plaintiff's range of possible recovery; (2) the extent to which the settlement will enable the parties to avoid anticipated burdens and expenses in establishing their claims and defenses; (3) the seriousness of the litigation risks faced by the parties; (4) whether the settlement agreement is the product of arm's length bargaining between experienced counsel; and (5) the possibility of fraud or collusion. He finds that the settlement satisfies these criteria. First, Blum and Winter will recover 48% of their individual alleged damages and Slattery and Herrera will recover 37% of their individual alleged damages. These percentages are reasonable. Second, the settlement will entirely avoid the expense and aggravation of litigation. Third, the settlement will enable the Plaintiffs to avoid the risk of litigation. Fourth, the counsel represents that the settlement is the product of arm's-length bargaining between an experienced counsel and that the counsel advocated zealously on behalf of their respective clients during negotiations. There is no evidence to the contrary. Fifth, there are no factors that suggest the existence of fraud. Moreover, the Magistrate he holds that despite the numerous problematic entries, as well as, the small monetary amount recovered by the Plaintiffs in the action, he is required to award the Plaintiffs' counsel an appropriate lodestar figure based on these remaining hours. For these reasons, Magistrate Judge Pitman approved the Settlement Agreement and awarded $50,000 in attorneys' fees and costs. A full-text copy of the Court's Oct. 16, 2018 Opinion and Order is available at https://is.gd/xmAxHs from Leagle.com. Christopher Fraticelli, individually and on behalf of other persons similarly situated who were employed by MSG Holdings, L.P. and The Madison Square Garden Company and/or any other entities affiliated with or controlled by MSG Holdings, L.P. and The Madison Square Garden Compan, Plaintiff, represented by Lloyd Robert Ambinder -- lambinder@vandallp.com -- Virginia & Ambinder, LLP, Charles R. Virginia -- cvirginia@vandallp.com -- Virginia & Ambinder, LLP, Daniel Harris Markowitz, Leeds Brown Law PC, Jeffrey Kevin Brown, Leeds Morelli & Brown, LaDonna Marie Lusher -- llusher@vandallp.com -- Virginia & Ainbinder, LLP, Michael Alexander Tompkins, Leeds Brown Law PC & Suzanne Brooke Klein, Virginia & Ambinder, LLP. Oritt Blum, Fernando Herrera, Scott H. Winter & Kristin Slattery, Plaintiffs, represented by Lloyd Robert Ambinder, Virginia & Ambinder, LLP. MSG Holdings, L.P., The Madison Square Garden Company, and/or any other entities affiliated with or controlled by MSG Holdings, L.P. & The Madison Square Garden Company, Defendants, represented by Ira G. Rosenstein -- ira.rosenstein@morganlewis.com -- Morgan Lewis & Bockius, LLP & Sam Scott Shaulson -- sam.shaulson@morganlewis.com -- Morgan, Lewis & Bockius LLP. NESTLE USA: Coffee-mate Has Unsafe Additive, Beasley Claims ----------------------------------------------------------- MARK BEASLEY, on behalf of himself and all others similarly situated, the Plaintiff, vs. LUCKY STORES, INC., NESTLE USA, INC., SAVE MART SUPER MARKETS, THE KROGER COMPANY, and THE SAVE MART COMPANIES, INC., the Defendants, Case No. CGC-18-570953 (Cal. Super. Ct., Oct. 29, 2018), alleges that Nestle unlawfully made Coffee-mate with the unsafe food additive known as partially hydrogenated oil ("PHO"). According to the complaint, Nestle manufactures, markets, and sells a line of coffee creamer products under the Coffee-mate brand name. Lucky, Save Mart, SMCI, and Kroger unlawfully sold Coffee-mate at their grocery stores throughout California. On June 16, 2015, the Food and Drug Administration issued a final regulation and declaratory order, after extensive public comment, declaring PHO unsafe for any use in food. The FDA came to the same conclusion when it initially proposed the regulation in 2013. The Defendants were aware that PHO was unsafe even before this time, yet still harmed their customers by manufacturing, distributing, and selling Coffee-mate. During the entire class period, inexpensive and commercially viable alternatives to PHO existed, and indeed were even in used by the primary competitor to Coffee-mate, International Delight. In order to increase profits, Defendants instead sold an unsafe and illegal product, and such behavior was an unfair business practice. For much of the class period, Defendants also defrauded the class by using the false and unauthorized "0 g Trans Fat" nutrient content claim on Coffee-mate packaging. All PHO, however, contains trans fat, and the amount in Coffee-mate was not "0 g," but a substantial and dangerous amount, the lawsuit says. Nestle is a Swiss transnational food and drink company headquartered in Vevey, Vaud, Switzerland. It is the largest food company in the world, measured by revenues and other metrics, since 2014. Lucky Stores is an American supermarket chain founded in San Leandro, California, in 1935. Counsel for Plaintiff: Gregory S. Weston, Esq. Andrew C. Hamilton, Esq. THE WESTON FIRM 1405 Morena Blvd., Suite 201 San Diego, CA 92110 Telephone: (619) 798-2006 Facsimile: (619) 343-2789 E-mail: greg@weston.firm.com andrew@weston.firm.com NOBLE HOUSE: Court Certifies 2 Classes in Holt Suit --------------------------------------------------- In the case, KATHLEEN HOLT, individually and on behalf of all others similarly situated, Plaintiff, v. NOBLE HOUSE HOTELS & RESORT, LTD, Defendant, Case No. 17cv2246-MMA (BLM) (S.D. Cal.), Judge Michael M. Anello of the U.S. District Court for the Southern District of California granted the Plaintiff's motion for class certification. Holt, individually and on behalf of all others similarly situated, filed the putative class action against the Defendant, alleging causes of action for violations of California's False Advertising Law, California Business and Professions Code sections 17500, et seq.; California's Unfair Competition Law, California Business and Professions Code sections 17200, et seq.; and California's Consumers Legal Remedy Act ("FAC"). On Aug. 6, 2017, the Plaintiff was charged a 3.5% surcharge of $1.38 on her bill at Acqua California Bistro. She contests the legality of Noble House's 3.5% surcharge on menu items within three Hilton hotel restaurants managed by Noble House in San Diego, California: (1) Acqua; (2) Olive Bar; and (3) Fresco's. The Plaintiff alleges the surcharge practice is misleading and deceiving because it advertises prices for food and drinks in its menus and then adds the surcharge to the balance of the bill total at checkout when it is too late for the consumer to make an informed decision about the increased amount on the bill total. The Plaintiff alleges Noble House adds the surcharge instead of raising the prices on its menu. Noble House contends the surcharge was added to help cover increasing labor costs and in support of the recent increases in minimum wage and benefits. It places a notice on the bottom of its menus, on signs throughout the premises, and at the bottom of all bills stating that a 3.5% surcharge will be added to all Guest checks to help cover increasing labor costs and in our support of the recent increases in minimum wage and benefits for our dedicated team members. The Plaintiff filed a motion to certify a Federal Rule of Civil Procedure 23(b)(2) class and a Rule 23(b)(3) class. Noble House filed its response in opposition, and the Plaintiff replied. The classes that the Plaintiff seeks to certify are different from the class alleged in the FAC. In the FAC, she sought to represent a class of all consumers who ate or drank at a restaurant in California, owned, managed, or operated by Noble House, who were charged a surcharge on their bill in addition to the costs of the food or drinks. However, the motion for class certification seeks to represent a California-only Rule 23(b)(2) class consisting of all persons who were charged a surcharge on their bill, between Feb. 1, 2017 and present, at a restaurant in California managed by Noble House," and a Rule 23(b)(3) class consisting of all residents of California who were charged a surcharge on their bill at one or more of the following three Hilton San Diego Resort and Spa restaurants: (1) Acqua, (2) Olive Bar, or (3) Fresco's, between Feb. 1, 2017 and Sept. 20, 2017, where payment was processed by credit card. Judge Anello finds that the Plaintiff's California-only Rule 23(b)(2) class may be certified under Rule 23(b)(2) and Rule 23(b)(3). Therefore he granted the Plaintiff's motion for class certification. The Judge certified the following Plaintiff's classes: a. Rule 23(b)(2) Class: All persons who were charged a surcharge on their bill, between Feb. 1, 2017 and the present, at a restaurant in California managed by the Defendant. b. Rule 23(b)(3) Class: All residents of California who were charged a surcharge on their bill at one or more of the following three Hilton San Diego Resort and Spa restaurants: (1) Acqua California Bistro, (2) Olive Bar, or (3) Fresco's, between Feb. 1, 2017 and Sept. 20, 2017, where payment was processed by credit card. The Judge appointed Plaintiff Kathleen Holt as the Class Representative, and Abbas Kazerounian and Jason A. Ibey of Kazerouni Law Group, APC as the Class Counsel. A full-text copy of the Court's Oct. 16, 2018 Order is available at https://is.gd/jyM07Z from Leagle.com. Kathleen Holt, individually and on behalf of all others similarly situated, Plaintiff, represented by Kevin Lemieux -- kevin@westcoastlitigation.com -- The Law Office of Kevin Lemieux, APC, Yana A. Hart -- yana@westcoastlitigation.com -- Hyde & Swigart, Abbas Kazerounian -- ak@kazlg.com -- Kazerounian Law Group, APC, Clark Robert Conforti, Kazerouni Law Group APC, Joshua B. Swigart -- josh@westcoastlitigation.com -- Hyde & Swigart & Robert Lyman Hyde -- bob@westcoastlitigation.com -- Hyde & Swigart. Noble House Hotels & Resort, LTD, doing business as Noble House Hotels & Resort, LTD, LP, Defendant, represented by Darin Murl Sands -- sandsd@lanepowell.com -- Lane Powell PC & Heidi Brooks Bradley -- bradleyh@lanepowell.com -- Lane Powell PC. NOBLES COUNTY, MN: Making Unlawful Immigrant Arrests, Judge Rules ----------------------------------------------------------------- West Central Tribune reports that Minnesota District Court Judge Gregory Anderson issued a temporary restraining order and injunction on Oct. 19, against Nobles County Sheriff Kent Wilkening in a class-action lawsuit filed by the American Civil Liberties Union of Minnesota on an issue of jailing immigrants, an ACLU press release states. The ACLU sued Nobles County in southwestern Minnesota this year saying Wilkening and the county are violating Minnesota law by refusing to release some immigrants from the county jail when they post bond or otherwise should be released, then re-arresting them for Immigrations and Customs Enforcement. The ACLU said Wilkening doesn't have the authority to re-arrest people and detain them on behalf of ICE.. The judge's order requires Wilkening to release people when they are eligible for release under Minnesota law and the Minnesota and U.S. constitutions. If they are re-arrested and placed in federal custody, an ICE officer must do it, the judge ruled. Nobles County, home to a high immigrant population, has a contract to house ICE detainees. "We are pleased the court acted quickly and decisively to issue this temporary restraining order against the Nobles County Sheriff," ACLU-MN Executive Director John Gordon said in the release. "Every day immigrants have been at risk of unlawful arrest because of the sheriff's egregious behavior. "As courts have held over and over, Minnesotans have constitutional rights regardless of their immigration status," Gordon said. "When sheriffs flout the law and try to act as federal immigration officials, it not only harms our community but it also violates the law. This unlawful behavior needs to end immediately — not only in Nobles County but across the state. "This order sends a clear message that these actions will not be tolerated, and provides immediate relief to all immigrants in Nobles County. We look forward to making that relief permanent." Anderson specifically held in his order that "there is a substantial likelihood" that the plaintiffs will win when the case comes to trial. That trial is anticipated to occur early next spring.[GN] OKLAHOMA: Lawsuit Targets Medical Marijuana Registration -------------------------------------------------------- Meg Wingerter, writing for News OK, reports that a Tulsa medical marijuana grower is suing the state over what it calls excessive fees and taxes. Caulfield Holdings Botanicals, a Tulsa company that intends to grow marijuana for the medical market, and Alicia Vargas, a medical marijuana patient from Weatherford, filed a lawsuit on October 19 and will ask an Oklahoma County district judge to make it a class-action case. In the suit, they argue the Oklahoma State Department of Health overstepped its bounds when it required growers to register with the Oklahoma Bureau of Narcotics and Dangerous Drugs Control. A narcotics license for a grower costs $500, on top of the $2,500 that cannabis businesses must pay to the Oklahoma Medical Marijuana Authority. Ron Durbin, Esq. a Tulsa attorney representing Caulfield Holdings, estimated the licenses will bring in about $1 million in revenue for the Bureau of Narcotics, and said it was inappropriate to require medical marijuana businesses to register with the bureau, which publicly opposed legalizing medical marijuana through State Question 788. "There's a reason these businesses are being required to register with the Bureau of Narcotics," he said. "One is to extract more money. Another is to allow the OBN to go on a crusade when these businesses start to take off." The Oklahoma State Department of Health and the Oklahoma Attorney General's office declined comment on October 19, saying they hadn't seen the lawsuit. The Bureau of Narcotics didn't respond to a request for comment before deadline. Caulfield Holdings also took issue with the state's decision to treat the 7 percent tax allowed under State Question 788 as an excise tax, rather than sales tax. What that means in practice is that everyone who buys medical marijuana will pay a 7 percent tax plus the 4.5 percent state sales tax, but people who live in an area with a local sales tax will pay more. SQ 788 "doesn't say '7 percent in addition to any existing sales tax,'" Durbin said. "It says '7 percent.'" Paula Ross, spokeswoman for the Oklahoma Tax Commission, said that as SQ 788 was written, it created a 7 percent excise tax on medical marijuana. Sales tax applies to all products, unless the law specifically states otherwise, she said. "There's not an exemption in the law for medical marijuana sales," she said. Lawsuits abound The newest lawsuit is at least the fifth related to medical marijuana implementation. Durbin's law firm is involved with four of them. Vargas, the medical marijuana patient involved in the newest lawsuit, also filed a suit on October 17 against the city of Weatherford with her husband, Michael Vargas, who wants to open a dispensary. The lawsuit seeks to prevent the city from enforcing two ordinances it passed that would restrict medical marijuana businesses. The ordinances would require dispensary owners to obtain a business permit from the city, allow the city to conduct surprise inspections, limit their hours and prohibit dispensaries from opening on certain blocks of Main Street, within 500 feet of a library or museum, or within 1,000 feet of a child care center or another dispensary. They also ban businesses that grow or process marijuana from city limits and forbid business signs that indicate marijuana is available. Another suit related to local ordinances came to an end on October 17. Austin Miller, owner of marijuana business Cloudi Mornings, had sued the city of Broken Arrow over zoning restrictions and local fees. Tulsa County District Court Judge Patrick Pickerell ruled Broken Arrow couldn't enforce its ordinances, and Cloudi Mornings agreed to dismiss its complaint that city officials had violated the Oklahoma Open Meeting Act. A second lawsuit relying on the Open Meeting Act is in a holding pattern. Kenneth Wogoman, a Muskogee County man, sued the Oklahoma State Department of Health and several Board of Health members in July, after the board voted on amendments to proposed medical marijuana rules that never had been discussed publicly. There's been no action on that case since August, when Wogoman filed an amended petition. The amendments would have required dispensaries to hire pharmacists and prohibited selling smokable forms of marijuana. The board voted to scuttle both amendments after Attorney General Mike Hunter's office said they likely exceeded the board's authority. The fifth lawsuit, filed by 14 individuals and three businesses in Cleveland County, argued the Board of Health exceeded its authority and failed to follow proper procedures with the medical marijuana rules passed in July. The Oklahoma Attorney General's office has asked the court to dismiss the case, saying that the plaintiffs haven't shown the rules will harm them. The case, which is the only one not involving Durbin, is pending.[GN] P.A.M. TRANSPORT: Bid to Strike Offer of Judgment in Browne Denied ------------------------------------------------------------------ In the case, DAVID BROWNE; ANTONIO CALDWELL; and LUCRETIA HALL, on behalf of themselves and all those similarly situated Plaintiffs, v. P.A.M. TRANSPORT, INC., Defendant, Case No. 5:16-CV-5366 (W.D. Ark.), Judge Timothy L. Brooks of the U.S. District Court for the Western District of Arkansas, Fayetteville Division, denied the named Plaintiffs' Motion to Strike or Otherwise Invalidate Defendants' Attempted Rule 68 Offer of Judgment. The Plaintiffs' operative complaint in the case asserts claims against PAM under the Fair Labor Standards Act ("FLSA") and the Arkansas Minimum Wage Law ("AMWL"). The case was brought as a putative collective action under the FMLA and a putative class action under Fed. R. Civ. P. 23. See id. In May of 2017, the Court conditionally certified the collective action,and around 3,000 individuals subsequently opted in as Plaintiffs in the collective action. The deadline for the Plaintiffs to move for class certification under Rule 23 is Oct. 19, 2018. On May 31, 2018, PAM conveyed an offer of judgment to the Plaintiffs under Fed. R. Civ. P. 68. The Plaintiffs contend that PAM's May 31 offer of judgment is invalid, because it purports to bind putative Rule 23 class members even though the Court has not yet certified any Rule 23 class. This contention rests on two related arguments: first, that a putative class member is not an adverse party as required by Rule 68, and second, that the Court cannot enter judgment on behalf of absentee class members. The Court has been unable to find any binding authority that squarely addresses these issues. But Judge Brooks thinks the greater weight of persuasive authority runs counter to the Plaintiffs' arguments. The Plaintiffs cite five cases that explicitly or implicitly recognize that Rule 68 offers of judgment are invalid when made only with respect to individual claims (rather than to the claims of the putative class as a whole) while the issue of class certification is pending. However, the Judge finds that none of these cases say anything about the propriety of Rule 68 offers of judgment that are made not only with respect to the individual Plaintiffs but also to the putative classes they seek to represent. PAM, for its part, cites several cases holding that it is not improper to enforce Rule 68 offers of judgment that are made with respect to an entire putative class (rather than only to the individual Plaintiffs). The reasoning provided in these cases is that when an offer of judgment is made to an entire putative class, any potential conflict between the mandates of Rules 23 and 68 is eliminated so long as the court certifies a class, provides notice to its members, and conducts a fairness analysis under Rule 23(e) before accepting and entering the proposed judgment. The Judge Court agrees with the reasoning of those cases. In other words, if the Plaintiffs were to accept a Rule 68 offer of judgment from PAM that purports to bind putative class members, the Court would not enter the agreed-to judgment unless and until it certified the proposed class(es) and followed the procedures set forth in Rule 23(e) for approval of class settlement agreements. So as to the question of whether any putative class members will be bound, unfairly or otherwise, by a judgment in their absence -- they will not be. Similarly, as to the question of whether putative class members are "opposing parties" for purposes of Rule 68 -- either they will have become "opposing parties" who are actually-certified class members that received notice and an opportunity to be heard by the time any class settlement is approved under Rule 23(e), or otherwise they will not be bound the judgment. It seems, then, the Judge finds, that the real question lurking beneath all of this might be whether it would be proper for the Plaintiffs to be required to pay PAM's costs under Rule 68(d) if they were ultimately to obtain a judgment that is less favorable than PAM's preclass-certification Rule 68 offer. However, he says the Plaintiffs have not explicitly framed the matter that way, and no motion for costs is presently before the Court. Thus that issue is not ripe at this time. But on the issue that is presently ripe, the Judge finds it would not be appropriate to strike or otherwise invalidate PAM's Rule 68 offer of judgment. For these reasons, Judge Brooks denied the Plaintiffs' Motion to Strike or Otherwise Invalidate Defendants' Attempted Rule 68 Offer of Judgment. A full-text copy of the Court's Oct. 16, 2018 Opinion and Order is available at https://is.gd/HgLhWJ from Leagle.com. David Browne, on behalf of himself and all those similarly situated, Antonio Caldwell, on behalf of himself and all those similarly situated & Lucretia Hall, on behalf of herself and all those similarly situated, Plaintiffs, represented by Joshua S. Boyette -- jboyette@swartz-legal.com -- Swartz Swudler LLC, pro hac vice, Justin L. Swidler -- jswidler@swartz-legal.com -- Swartz Swidler LLC, pro hac vice, Richard Swartz -- rswartz@swartz-legal.com -- Swartz Swidler LLC, pro hac vice & Travis Martindale-Jarvis -- tmartindale@swartz-legal.com -- Swartz Swudler LLC, pro hac vice. PAM Transport Inc, Defendant, represented by Amber Prince -- aprince@cwlaw.com -- Conner & Winters, Martin D. Holmes -- mdholmes@dickinsonwright.com -- Dickinson Wright PLLC, Morris Reid Estes, Jr. -- restes@dickinsonwright.com -- Dickinson Wright PLLC, Peter Fredrick Klett -- pklett@dickinsonwright.com -- Dickinson Wright PLLC, Robert L. Jones, III -- bjones@cwlaw.com -- Conner & Winters, K. Scott Hamilton -- khamilton@dickinsonwright.com -- Dickinson Wright PLLC & Kerri E. Kobbeman -- kkobbeman@cwlaw.com -- Conner & Winters, LLP. John Does, Defendant, represented by Martin D. Holmes , Dickinson Wright PLLC, Morris Reid Estes, Jr., Dickinson Wright PLLC, Peter Fredrick Klett, Dickinson Wright PLLC & K. Scott Hamilton, Dickinson Wright PLLC. PANERA BREAD: FLSA & DCMWA Classes in Meyer Conditionally Certified ------------------------------------------------------------------- In the case, ALAN MEYER and DAVID CORNELIUS, Individually and on behalf of all others similarly situated, Plaintiffs, v. PANERA BREAD CO., Defendant, Case No. 17-cv-2565 (EGS/GMH) (D. D.C.), Magistrate Judge G. Michael Harvey of the U.S. District Court for the District of Columbia granted in part and denied in part the Plaintiffs' Motion for Conditional Certification and Court-Authorized Notice Pursuant to Section 216(b) of the Fair Labor Standards Act ("FLSA") and the District of Columbia Minimum Wage Act ("DCMWA"). The Plaintiffs, who were assistant managers at two restaurants owned by the Defendant, claim that they and other assistant managers employed by the Defendant were misclassified as exempt employees under the FLSA and DCMWA and therefore were illegally denied overtime wages for hours that they worked in excess of forty hours per week. The Plaintiffs further allege that the Defendant failed to keep accurate records of the time that they worked and failed to keep required payroll records, and that all of these violations were willful. The Plaintiffs filed their original complaint on March 29, 2017. On Jan. 30, 2018, they filed their original motion for conditional certification and the Defendant filed a motion to dismiss the Plaintiffs' original complaint. On May 17, 2018, the Plaintiffs, with the Defendant's consent, filed the operative Amended Complaint, which substituted Panera, LLC, as the Defendant for Panera Bread Co., and clarified the scope of the proposed collectives. According to the Amended Complaint, the Defendant is a Delaware corporation operating hundreds of restaurants in the United States and Canada, and which had an annual revenue of over $2.5 billion in 2015. The Plaintiffs allege that they were employed as assistant managers at two different Panera Bread restaurants: Mr. Meyer worked at a location in Washington, D.C., from April 2015 until October 2015; Mr. Cornelius worked at a location in Birmingham, Alabama, from October 2013 until September 2015. The Plaintiffs assert that, as assistant managers of restaurants operated by the Defendant, they predominantly performed non-managerial work but were nevertheless classified as exempt from the overtime provisions of the FLSA (and, in Mr. Meyers' case, the D.C. Wage Laws). They further contend that each of them regularly worked more than forty hours per week and, as a consequence of their misclassification, did not receive overtime pay. The Amended Complaint alleges a collective under the FLSA consisting of all similarly situated assistant managers whom the Defendant classified as exempt from overtime requirements, who worked more than 40 hours per week for the Defendant in the United States. It further alleges a collective under the DCMWA consisting of all similarly situated assistant managers classified as exempt, who worked more than 40 hours per week for the Defendant in Washington, D.C., from March 25, 2014, through Feb. 27, 2015, and who elect to join the action. After the Amended Complaint was filed, the Court denied as moot the Defendant's motion to dismiss the original complaint. The Plaintiffs' original motion for conditional certification was similarly denied as moot. The Plaintiffs thereafter filed a renewed Motion for Conditional Certification on June 5, 2018. That motion requests conditional certification of the FLSA Collective and the DCMWA Collective, as well as ancillary relief, including authorizing notice to potential collective members. The Court's denial of the Defendant's motion to strike is the subject of a Memorandum Opinion and Order filed contemporaneously with the Memorandum Opinion and Order. Magistrate Judge Harvey finds that the Plaintiffs have presented evidence that the assistant managers in the putative collective were classified as exempt from the FLSA's overtime provisions although the bulk of the work that they performed was non-managerial. They have further presented evidence that assistant managers regularly worked more than 40 hours per week. The Plaintiffs have also presented evidence through declarations that Panera's corporate headquarters exerted significant control over the operations of its restaurants. Therefore, he will conditionally certify a collective pursuant to the FLSA. With respect to the DCMWA Collective, the Magistrate finds that because neither party has suggested that conditional certification should be decided differently under the FLSA and D.C. law, he assumes for the purposes of the decision that there is no material difference between them. Therefore, he will conditionally certify a collective under the DCMWA. The notice of the pendency of the FLSA action will be sent to employees who worked at Panera restaurants operated by the Defendant nationwide (with the exception of New York, New Jersey, California, and Massachusetts) as assistant managers beginning on March 25, 2014 -- which is three years plus 249 days prior to the filing of the action -- and the date of the Opinion. The notice of the pendency of the DCMWA action will be sent to employees who worked at Panera restaurants operated by Defendant in the District of Columbia as assistant managers between March 25, 2014, and Feb. 27, 2015. The Magistrate directs that the Defendant will produce only the last known email addresses in its possession of potential collective members. And because the Plaintiffs have not explained any particular need for the potential Plaintiffs' social security numbers, the request for production of social security numbers is denied at this time. In the event that the Plaintiffs can show that methods of direct communication are unsuccessful and the parties are not able to agree on less intrusive means of handling any such issues if they should arise, they may seek permission from the Court to require production of more personal information. The Plaintiff also seeks an order requiring the Defendant to include notice in current assistant managers' pay envelopes and authorization to create a stand-alone website through which putative collective members could opt-in to the action by submitting their forms electronically. The Magistrate finds that the Plaintiffs fail to respond to the concerns. Therefore, at this time, when there is no indication that more traditional opt-in procedures will be insufficient, the request is denied. The Plaintiffs are authorized to send a reminder notice via first class mail and email to potential collective members 30 days after the beginning of the opt-in period. For the foregoing reasons, Margistrate Judge Harvey granted in part and denied in part the Plaintiffs' Motion for Conditional Certification and Court-Authorized Notice Pursuant to Section 216(b) of the FLSA and the DCMWA. The Magistrate directed the parties to meet and confer to agree on the form and content of the opt-in notice, reminder notice, and consent-to-sue forms, and submit those proposed documents to the Court within 14 days of the date of this Memorandum Opinion and Order. If the parties are unable to agree on the form and content of the noticed and consent to sue forms, within 14 days of the date of the Memorandum Opinion and Order, they will submit a joint filing to the Court presenting each side's positions on the remaining disputes, which the undersigned will thereafter resolve expeditiously. A full-text copy of the Court's Oct. 16, 2018 Memorandum Opinion and Order is available at https://is.gd/x81gbf from Leagle.com. ALAN MEYER & DAVID CORNELIUS, Individually and on behalf of all others similarly situated, Plaintiffs, represented by Sally Jasmine Abrahamson -- sabrahamson@outtengolden.com -- OUTTEN & GOLDEN LLP, Justin M. Swartz -- jms@outtengolden.com -- OUTTEN & GOLDEN LLP, pro hac vice & Lucy Brierly Bansal -- lbansal@outtengolden.com -- OUTTEN & GOLDEN, LLP. PANERA, LLC, Defendant, represented by Alexander J. Passantino -- apassantino@seyfarth.com -- SEYFARTH SHAW, LLP, Jade M. Gilstrap -- jgilstrap@seyfarth.com -- SEYFARTH SHAW, LLP, pro hac vice, Brett C. Bartlett -- bbartlett@seyfarth.com -- SEYFARTH SHAW LLP, pro hac vice & Kevin M. Young -- kyoung@seyfarth.com -- SEYFARTH SHAW LLP. PBF ENERGY: Continues to Defend Goldstein Class Action ------------------------------------------------------ PBF Energy 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 a class action suit entitled, Arnold Goldstein, et al. v. Exxon Mobil Corporation, et al. On February 17, 2017, in Arnold Goldstein, et al. v. Exxon Mobil Corporation, et al., the company and PBF Energy Company LLC, and the company's subsidiaries, PBF Energy Western Region LLC and Torrance Refining Company LLC and the manager of our Torrance refinery along with Exxon Mobil Corporation were named as defendants in a class action and representative action complaint filed on behalf of Arnold Goldstein, John Covas, Gisela Janette La Bella and others similarly situated. The complaint was filed in the Superior Court of the State of California, County of Los Angeles and alleges negligence, strict liability, ultrahazardous activity, a continuing private nuisance, a permanent private nuisance, a continuing public nuisance, a permanent public nuisance and trespass resulting from the February 18, 2015 electrostatic precipitator ("ESP") explosion at the Torrance refinery which was then owned and operated by ExxonMobil. The operation of the Torrance refinery by the PBF entities subsequent to our acquisition in July 2016 is also referenced in the complaint. To the extent that plaintiffs' claims relate to the ESP explosion, Exxon has retained responsibility for any liabilities that would arise from the lawsuit pursuant to the agreement relating to the acquisition of the Torrance refinery. On July 2, 2018, the Court granted leave to plaintiffs' to file a Second Amended Complaint alleging groundwater contamination. PBF Energy said, "With the filing of the Second Amended Complaint, Plaintiffs' added an additional plaintiff. As this matter is in the class certification phase, we cannot currently estimate the amount or the timing of its resolution. We presently believe the outcome will not have a material impact on our financial position, results of operations or cash flows." PBF Energy Inc., together with its subsidiaries, engages in the refining and supply of petroleum products. The company operates through two segments, Refining and Logistics. PBF Energy Inc. was founded in 2008 and is based in Parsippany, New Jersey. PBF ENERGY: Faces Class Action by Michelle & Jim Kendig ------------------------------------------------------- PBF Energy 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 PBF Energy Limited is one of the defendants in the class action suit filed by Michelle Kendig and Jim Kendig. On September 18, 2018, in Michelle Kendig and Jim Kendig, et al. v. ExxonMobil Oil Corporation, et al., PBF Energy Limited and Torrance Refining Company LLC along with ExxonMobil Oil Corporation and ExxonMobil Pipeline Company were named as defendants in a class action and representative action complaint filed on behalf of Michelle Kendig, Jim Kendig and others similarly situated. The complaint was filed in the Superior Court of the State of California, County of Los Angeles and alleges failure to authorize and permit uninterrupted rest and meal periods, failure to furnish accurate wage statements, violation of the Private Attorneys General Act and violation of the California Unfair Business and Competition Law. Plaintiffs seek to recover unspecified economic damages, statutory damages, civil penalties provided by statute, disgorgement of profits, injunctive relief, declaratory relief, interest, attorney's fees and costs. To the extent that plaintiffs' claims accrued prior to July 1, 2016, ExxonMobil has retained responsibility for any liabilities that would arise from the lawsuit pursuant to the agreement relating to the acquisition of the Torrance refinery and logistics assets. PBF Energy said, "As this matter was recently filed, we cannot currently estimate the amount or the timing of its resolution. We presently believe the outcome will not have a material impact on our financial position, results of operations or cash flows." PBF Energy Inc., together with its subsidiaries, engages in the refining and supply of petroleum products. The company operates through two segments, Refining and Logistics. PBF Energy Inc. was founded in 2008 and is based in Parsippany, New Jersey. PEACEHEALTH: Sued for Allegedly Overbilling Medicare Patients ------------------------------------------------------------- Morgan Haefner, writing for Becker's Hospital Review, reports that an Oregon man filed a lawsuit against Vancouver, Wash.-based PeaceHealth, alleging the health system secretly overbilled Medicare patients involved in accidents, according to The Lund Report. The lawsuit, filed in the U.S. District Court for the District of Oregon, claims PeaceHealth overbilled Donald Griffith nearly $15,000 for treatment related to a car accident he was involved in during November 2015. Mr. Griffith, who is disabled and has insurance through Medicare, claims after being treated at Eugene, Ore.-based PeaceHealth Sacred Heart Medical Center University District, the hospital bypassed billing Medicare and instead billed him for $14,574.83 in October 2017. A $98,691 settlement from his liability insurer for the accident was finalized the same month, and he received it in February 2018. Under an exception to federal law that only applies to Oregon, Medicare providers like PeaceHealth must bill a settlement only if a health plan pays a member injured in an accident within 120 days after the individual files a claim or is treated, whichever comes first, according to the lawsuit. "Since they didn't do that in this case, they cannot come back more than 120 days later and try to collect from the settlement," Michael Fuller, a class-action specialist and lawyer in the case, told The Lund Report. A PeaceHealth spokesperson told The Lund Report the health system does not comment on pending litigation. The lawsuit seeks class-action status and three times the losses Mr. Griffith claims he suffered. The complaint alludes to hundreds of others who could join the case. [GN] POINT BLANK: Court Denies Motion for Class Certification -------------------------------------------------------- On October 29, 2018, The United States Federal Court, in the southern district of Florida denied a motion for class certification filed against Point Blank Enterprises, Inc., and dismissed the case. In the case (OSTA, et al. v. Point Blank Enterprises, Inc., 0:17-cv-62051-UU, S.D. Fla.), a few individual Ohio police officers and two law enforcement associations alleged that a nationwide class should be certified to pursue claims that Point Blank's Self-Suspending Ballistic System (SSBS) for shoulder straps used on bulletproof vests were defective. Notably, the plaintiffs in the case did not claim that any wearer had been injured because of the SSBS, and did not allege any deficiency with the ballistics or bullet-stopping power of the vests. Instead, the plaintiffs' lawyers alleged a defect in the "hook and loop" closure portion of the SSBS when a wearer used the SSBS in a certain way, allegedly causing the shoulder straps to wear out prematurely. The denial of the class motion, and the associated dismissal of the claims asserted by the plaintiffs, enables Point Blank to continue to design, manufacture, and sell its body armor utilizing the SSBS. Point Blank has provided millions of vests to the U.S. military and U.S. law enforcement and no officer has been injured as a result of the manufacturing and/or design defect the plaintiffs allege, and in fact many officers' lives have been saved. Over 100 law enforcement officers' lives have been saved since 2012 and many more as a result of wearing Point Blank Body Armor over the past 45-years. Point Blank Body Armor is the most popular body armor worn by Officers in America today with the largest agencies in the country today using Point Blank Body Armor as the personal protection of choice. Point Blank body armor with SSBS has been the model of choice for American law enforcement over the past 10-years. Executive Vice President, Hoyt Schmidt, stated, "We have been committed to the law enforcement community for more than 45 years, offering vast experience and expertise in saving and protecting the lives of law enforcement officers, corrections officers, and first responders. Point Blank provides high performance and quality body armor products in many different models and styles. The ruling reaffirms Point Blank's position that the SSBS is a safe shoulder strapping system for its ballistic vests, and underscores just one more reason why Point Blank Body Armor is preferred by the majority of law enforcement users. We stand behind the performance, the durability and the safety of those products, and we appreciate and value our end-users as they protect and defend the United States and our communities. Point Blank is committed to customer service, and has a process in place for reviewing customer complaints and warranty claims regarding Point Blank products and working directly with its customers to resolve any issues in a timely manner. We appreciate your continued support of Point Blank products and remain dedicated to customer satisfaction." About Point Blank Enterprises, Inc. Point Blank Enterprises, Inc. -- http://www.pointblankenterprises.com-- is a provider of high performance protective solutions, including bullet, fragmentation and stab resistant apparel and related accessories. Through its key brands, Point Blank Body Armor, Protective Apparel Corporation of America (PACA), Protective Products, PARACLETE®, The Protective Group (TPG), Advanced Technology Group (ATG), and First Tactical, the Company ranks as the largest global supplier of ballistic armor systems in the world. The Company's ballistic solutions have been credited with saving countless lives for the most important customers in the world, including the U.S. Armed Forces, Department of Defense, Federal Government and law enforcement, corrections and security personnel, both domestically and abroad. [GN] PROVIDENT CAPITAL: Court Approves $28.5MM Class Action Settlement ----------------------------------------------------------------- Sol Dolor, writing for Austalasian Lawyer, reports that the Supreme Court of New South Wales has approved the $28.5m settlement in the class action brought by Slater and Gordon against the trustees of Provident Capital Ltd. Slater and Gordon brought the class action on a no-win, no-fee basis on behalf of about 1,900 Australians financially hit by the collapse of the debenture issuer. The settlement was first confirmed by the firm on 31 July, the first day of trial, but without details of the payout. Slater and Gordon, which began investigating the case in 2012, filed the class action in 2014 in the Federal Court and headed to the Supreme Court in 2015. The firm alleged that Australian Executor Trustees Ltd, the trustees of Provident, failed to ensure that the company would have enough property available to repay debenture holders. The suit alleged that if the trustees acted sooner, substantial losses could have been avoided for some investors and minimised for others. "This was a unique case and there has only ever been one other similar in terms of precedent. The length and complexity of this case was compounded by numerous cross claims and third-party claims, as well as a complex opt-out process ordered by the court halfway through," said Ben Hardwick, Esq. Slater and Gordon head of class actions. Compensation from this settlement is in addition to that already provided by receivers. "We will now ensure that this compensation gets into the hands of investors as soon as possible," Hardwick said. "We have a strong record of getting compensation into the hands of claimants swiftly. Indeed, the recent Manus Island distribution was one of the fastest and most efficient settlement distribution processes ever." Last year, the firm won $70 million in a conditional settlement for Manus Island detainees. [GN] RAYMOND JAMES: Judge Grants Former Client's Lawsuit Class Status ---------------------------------------------------------------- Jessica Mathews, writing for Financial Planning, reports that a legal fight over fees charged by Raymond James is moving to the next round thanks in part to the firm's own detailed spreadsheets. Judge William Dimitrouleas granted ex-client Jyll Brink's lawsuit class action status, a motion Raymond James opposed, which could reel in nearly 59,000 current and former clients of the firm. Brink's lawsuit, which was filed in a federal court in Florida mid-September against the St. Petersburg-based regional BD, accuses Raymond James & Associates of overcharging its "processing fees," on certain accounts, sometimes by up to 10 times. The judge's approval follows a recent effort by Raymond James to keep the lawsuit out of the courtroom. A spokeswoman at Raymond James declined to comment. Brink will act as a representative for all current and former Raymond James passport account holders that have been charged a fee within the past four to five years, depending on whether the claim is for breach of contract or negligence, according to the court order. A lawyer representing Raymond James argued that it was impossible to identify whether a client or advisor had paid the processing fee, according to the order. However, Brink's attorney said the firm had executed over 1 million trades for nearly 59,000 account holders, citing thorough documentation from a Raymond James' excel spreadsheet. Additionally, the attorney argued that the account holders paid for the entire processing fee themselves 94% of the time, without the help of their advisor, according to court documents. Judge Dimitrouleas excluded a little over 2,800 of the passport account holders from the class certification, determining that a financial advisor had paid for all, or part, of the processing fee, but will include the rest of the passport account clients in the class certification. The judge asked both sides to present proposals by Nov. 5 for a notice to all clients deemed to be class members, according to court documents. Neither attorney in the case responded to a request for further comment on the matter. [GN] REMINGTON: Settlement in Class Suit Will Replace Defective Trigger ------------------------------------------------------------------ Nicholas Sakelaris, writing for UPI, reports that after several accidental deaths and serious injuries, an estimated 7.5 million Remington gun owners have 18 months to get a defective trigger replaced. A class-action lawsuit was filed against Remington saying the guns went off without anyone pulling the trigger. The deadline for Remington to appeal the case to the Supreme Court passed on October 23, meaning the settlement goes into effect, CNBC reported. The settlement affects any gun owner who has a Model 700 or similar rifle. "Anyone with one of these guns should take advantage of this opportunity to get the trigger fixed," said Eric Holland, Esq. -- eholland@allfela.com -- a lead attorney for the plaintiffs. "I've encouraged everyone to put these guns away. Don't use these guns. Make the claims now." Remington set up a website and a hotline, 1-800-876-5940, with more information. The country's oldest gun maker has said its rifles are safe. A CNBC investigation discovered that engineers have warned Remington about problems with the trigger design since 1948. Remington didn't modify the design or launch a recall while accidents and complaints mounted. This settlement comes 18 years after 9-year-old Gus Barber was killed in a hunting accident when the trigger went off. The family settled a wrongful death claim against Remington. The boy's father, Richard Barber, has been critical of the class-action lawsuit, saying it wasn't tough enough on Remington, and he doesn't believe the settlement goes far enough. Still, he encouraged rifle owners to send their guns in for repairs, even though peak hunting season starts soon. "Why would somebody take a chance endangering the lives of their family members and friends, just because it may inconvenience them, that they may have to use a different rifle?" Barber asked. Remington filed for bankruptcy in March after being weighed down with leveraged buyout debt and public outcry over mass shootings and the class action suit. Survivors of the Sandy Hook Elementary School mass shooting in Newtown, Conn., in 2012 filed a lawsuit against Remington because the shooter used one of its guns, a Bushmaster, in the massacre. [GN] RIPPLE LABS: Consolidated Class Action Moves to Federal Court ------------------------------------------------------------- Nikhilesh De, writing for CoinDesk, reports that an ongoing legal battle between XRP investors and payments startup Ripple is entering its next phase. Attorneys for Ripple Labs and its affiliated defendants filed to move a consolidated class-action lawsuit from its previous venue at the San Mateo Superior Court to the U.S. District Court, Northern District of California, according to court documents published on Nov. 7. The defendants argued that the consolidated suit matches the requirements for a case to be brought before the higher, federal court. In addition to the request to change the venue, Ripple's attorneys hinted at the company's defense against the suit, which alleges that the XRP token is a security issued by Ripple. As part of the removal process, they wrote: "Plaintiffs do not allege that they lacked information about the nature of these transactions. Nevertheless, Plaintiffs claim that they were somehow injured because the Defendants were allegedly required to register XRP as a 'security' with the Securities & Exchange Commission ('SEC') but failed to do so." The consolidated class action combines previous class-action lawsuits filed by plaintiffs Avner Greenwald, David Oconer and Vladi Zakinov, according to the document. A fourth suit filed by Ryan Coffey was voluntarily dismissed by the plaintiff in August, though Ripple's attorneys later filed to have it related to Zakinov's suit. The defendants now include Ripple Labs and its subsidiary XRP II, as well as Bradley Garlinghouse, Christian Larsen, Ron Will, Antoinette O'Gorman, Eric van Miltenburg, Susan Athey, Zoe Cruz, Ken Kurson, Ben Lawsky, Anja Manuel and Takashi Okita. Why the move? Ripple's attorneys argue that, under the U.S. Class Action Fairness Act (CAFA), the case can now be shifted to federal court. Specifically, they cite the fact that there are more than 100 members of the suing class, at least one plaintiff is a citizen of a different state than the defendants and the total amount being sued for exceeds $5 million. One of the lawsuits, originally brought by Israeli resident Avner Greenwald, states that there are "thousands" of individuals who lost money after buying XRP. The plaintiffs are also asking for Ripple to pay $167.7 million in damages. Simply the act of seeking to move the case to district court means the case is now before that federal court, said Stephen Palley -- spalley@andersonkill.com -- a partner at the D.C.-based law firm Anderson Kill. Mr. Palley told CoinDesk that plaintiffs can try to move the case back before a state-level court by filing a motion to remand. And indeed, a subsequent filing entered on Nov. 8 indicates that the plaintiffs will file a motion to remand the case back to the San Mateo Superior Court. As such, the next deadline for Ripple to respond to the complaint itself will either be two weeks from the date the motion to remand is denied (if it is denied) or two weeks from when the San Mateo court receives the case (if the motion to remand is approved). Speaking about class-action lawsuits in general, Mr. Palley explained that "the conventional wisdom is that state court juries and judges tend to be more sympathetic to plaintiffs," possibly in part because state-level courts will draw from a more local jury pool. "There's also a perception that sometimes a state court judge … may be more political," he said, noting that some state-level judges are elected. "Defendants, on the other hand, have a perception that they'll get a more fair shake in federal court." [GN] SACRAMENTO CTY, CA: Protective Order Issued in Mays Prisoners Suit ------------------------------------------------------------------ Magistrate Judge Kendall J. Nemwan of the U.S. District Court for the Eastern District of California has issued a Stipulated Protective Order in the case, LORENZO MAYS, RICKY RICHARDSON, JENNIFER BOTHUN, ARMANI LEE, LEERTESE BEIRGE, and CODY GARLAND, on behalf of themselves and all others similarly situated, Plaintiffs, v. COUNTY OF SACRAMENTO, Defendant, Case No. 2:18-cv-02081 TLN KJN (PC) (E.D. Cal.). The action is likely to involve sensitive information for which special protection from public disclosure and from use for any purpose other than prosecution of the action is warranted. Such confidential and proprietary materials and information consist of protected health information and otherwise sensitive personal information pertaining to Plaintiffs and members of the purported class and other information otherwise generally unavailable to the public, or which may be privileged or otherwise protected from disclosure under state or federal statutes, court rules, case decisions, or common law. Accordingly, to expedite the flow of information, to facilitate the prompt resolution of disputes over confidentiality of discovery materials, to adequately protect information the parties are entitled to keep confidential, to ensure that the parties are permitted reasonable necessary uses of such material in preparation for and in the conduct of trial, to address their handling at the end of the litigation, and serve the ends of justice, a protective order for such information is justified in the matter. The Defendant asserts that it will only designate materials as "Confidential" under the Protective Order if they contain sensitive health or other personal information, or if they contain information that has been deemed confidential by the Sacramento County Sheriff's Department or other relevant agency for safety and security reasons and has been restricted from general distribution, including but not limited to inmates and the public. It agrees that the Plaintiffs may request, and it will provide, inmate custody and/or health records upon such request. Documents and information provided to Disability Rights California ("DRC") pursuant to DRC's statutory access authority during the course of its investigation preceding the litigation may be submitted to the Court. Such materials will be presumed to be "Confidential" pursuant to the Agreement and Protective Order, except to the extent that the Parties agree the materials do not warrant such designation or where a Party disputes the designation, in which case that Party must employ the dispute resolution procedure outlined. The protections conferred by the Stipulation and Order cover not only Protected Material, but also (1) any information copied or extracted from Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, conversations, or presentations by Parties or their Counsel that might reveal Protected Material. Any use of Protected Material at trial will be governed by a separate agreement or order. Any Party or Non-Party may challenge a designation of confidentiality at any time that is consistent with the Court's Scheduling Order. Unless a prompt challenge to a Designating Party's confidentiality designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to challenge a confidentiality designation by electing not to mount a challenge promptly after the original designation is disclosed. A Receiving Party may use Protected Material that is disclosed or produced by another Party or by a Non-Party in connection with the case only for prosecuting, defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to the categories of persons and under the conditions described in the Order. The Counsel of Record are entitled to retain an archival copy of all documents, pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work product, and consultant and expert work product, even if such materials contain Protected Material. The Counsel of Record is not required to destroy or return copies of Protected Material that may be stored on back-up tapes created in the Receiving Party's normal course of business and retained for disaster-recovery purposes. Any such archival or back-up tape copies that contain or constitute Protected Material remain subject to the Protective Order. Any violation of the Order may be punished by appropriate measures including, without limitation, contempt proceedings and/or monetary sanctions. A full-text copy of the Court's Oct. 16, 2018 Protective Order is available at https://is.gd/L8XdvV from Leagle.com. Armani Lee, Leertese Beirge, Ricky Lee Richardson, Jr., Cody Garland, Lorenzo Mays & Jennifer Bothun, Plaintiffs, represented by Donald Specter, Prison Law Office, Jessica Valenzuela Santamaria -- jvs@cooley.com -- Cooley LLP, Addison Mills Litton -- alitton@cooley.com -- Cooley LLP, Anne Hadreas -- anne.Hadreas@disabilityrightsca.org -- Disability Rights California, Kathlyn Anne Querubin -- kquerubin@cooley.com -- Cooley LLP, Margot Knight Mendelson -- mmendelson@prisonlaw.com -- Prison Law Office, Mark Anthony Zambarda -- mzambarda@cooley.com -- Cooley LLP, Sophie Jedeikin Hart -- sophieh@prisonlaw.com -- Prison Law Office, Tifanei Ressl-Moyer -- Tifanei.Ressl-Moyer@disabilityrightsca.org -- Disability Rights California & Aaron Joseph Fischer -- Aaron.Fischer@disabilityrightsca.org -- Disability Rights California. County of Sacramento, Defendant, represented by Todd Holton Master -- tmaster@hrmrlaw.com -- Howard Rome Martin & Ridley LLP & Shawn M. Ridley -- sridley@hrmrlaw.com -- Howard Rome Martin & Ridley. SIERRA TRADING: Chen Suit Moved to Western District of Washington ----------------------------------------------------------------- Weimin Chen, for himself and all others similarly situated, the Plaintiff, vs. Sierra Trading Post, Inc., vs. Does 1-20, inclusive , the Defendants, Case No.: 18-00002-25019-6-SEA, was removed from the King County Superior Court, to the U.S. District Court for District of Western District of Washington (Seattle) on Oct 29, 2018. The Western District of Washington Court Clerk assigned Case No.: 2:18-cv-01581 to the proceeding. Sierra Trading is an online, brick-and-mortar, and catalog retailer of off-price merchandise operated by the TJX Companies.[BN] The Plaintiff appears pro se. Attorneys for Sierra Trading Post, Inc.: Erin M Wilson, Esq. Rudy Albert Englund, Esq. LANE POWELL PC 1420 Fifth Avenue, Suite 4200 Seattle, WA 98101-2338 Telephone: (206) 233-7432 E-mail: wilsonem@lanepowell.com englundr@lanepowell.com SKAGIT REGIONAL: Faces McLean and Range Suit in W.D. Washington --------------------------------------------------------------- A class action lawsuit has been filed against Skagit Regional Health. The case is captioned WILLA MCLEAN, and DANETTE RANGE, individually and on behalf of all others similarly situated, Plaintiff v. SKAGIT REGIONAL HEALTH; and CASCADE VALLEY HOSPITAL, Defendants, Case No. 2:18-cv-01567-RSL (W.D. Wash., Oct. 24, 2018). The case is assigned to Judge Robert S. Lasnik. Skagit Regional Health operates as multi-specialty medical group that provides a range of medical specialties and services. [BN] The Plaintiffs are represented by: Abbas Kazerounian, Esq. KAZEROUNI LAW GROUP APC 2633 E Indian School Road, Suite 460 Phoenix, AZ 85016 Telephone: (800) 400-6808 Facsimile: (800) 520-5523 E-mail: ak@kazlg.com - and - Joshua Swigart, Esq. HYDE & SWIGART (CA) 2221 Camino del Rio South, Suite 101 San Diego, CA 92108 Telephone: (619) 233-7770 Facsimile: (619) 297-1022 E-mail: josh@westcoastlitigation.com - and - Ryan Lee McBride, Esq. KAZEROUNI LAW GROUP APC 2633 E Indian School Road, Suite 460 Phoenix, AZ 85016 Telephone: (602) 900-1288 E-mail: ryan@kazlg.com SONIC CORP: Patrick Balks at Inspire Brands Merger Deal ------------------------------------------------------- KENNETH PATRICK, Individually and on Behalf of All Others Similarly Situated, the Plaintiff, vs. SONIC CORP., STEVEN A. DAVIS, S. KIRK KINSELL, KATE S. LAVELLE, TONY D. BARTEL, R. NEAL BLACK, LAUREN R. HOBART, J. CLIFFORD HUDSON, FEDERICO F. PENA, JEFFREY H. SCHUTZ, KATHRYN L. TAYLOR, and SUSAN E. THRONSON, the Defendants, Case No. 5:18-cv-01063-G (W.D. Okla, Oct. 29, 2018), seeks to enjoin Defendants from holding shareholder vote on a proposed merger transaction and from taking any steps to consummate the proposed transaction unless, and until, the material information is disclosed to Sonic shareholders sufficiently in advance of the vote on the proposed transaction or, in the event the proposed transaction is consummated, to recover damages resulting from the Defendants’ violations of the Exchange Act. The proposed transaction is in connection with proposed acquisition of Sonic by Inspire Brands, Inc. According to the complaint, on September 24, 2018, the Sonic Board caused the Company to enter into an agreement and plan of merger, pursuant to which Sonic's stockholders will receive $43.50 in cash for each share of Sonic common stock they hold. On October 22, 2018, to convince Sonic shareholders to vote in favor of the Proposed Transaction, the Board authorized the filing of a materially incomplete and misleading Proxy Statement on Schedule 14A with the Securities and Exchange Commission, in violation of Sections 14(a) and 20(a) of the Exchange Act. While Defendants are touting the fairness of the Merger Consideration to the Company's shareholders in the Proxy, they have failed to disclose certain material information that is necessary for shareholders to properly assess the fairness of the Proposed Transaction, thereby rendering certain statements in the Proxy false and/or misleading. In particular, the Proxy contains materially incomplete and misleading information concerning the financial projections for the Company, which were developed by the Company's management and utilized by the Company's financial advisor, Guggenheim Securities, LLC in rendering its fairness opinion, both of which were relied upon by the Board in recommending shareholders vote in favor of the Proposed Transaction. Additionally, the Proxy contains materially incomplete and misleading information regarding the sale process leading up to the Proposed Transaction. It is imperative that the material information that has been omitted from the Proxy is disclosed to the Company's shareholders prior to the forthcoming shareholder vote, so that they can properly exercise their corporate suffrage rights, the lawsuit says.[BN] Counsel for Plaintiff: Jack L. Brown, Esq. C. Michael Copeland, Esq. JONES GOTCHER 3800 First Place Tower 15 East Fifth Street Tulsa, OK 74103-4309 Telephone: (918) 581-8200 E-mail: mcopeland@jonesgotcher.com jbrown@jonesgotcher.com - and - Nadeem Faruqi, Esq. James M. Wilson, Jr., Esq. FARUQI & FARUQI, LLP 685 Third Ave., 26th Fl. New York, NY 10017 Telephone: (212) 983-9330 E-mail: nfaruqi@faruqilaw.com jwilson@faruqilaw.com SONY CORP: Supreme Court to Hear Antitrust Case on Dec. 11 ---------------------------------------------------------- Mohsen Seddigh, writing for Law360, reports that on Dec. 11, 2018, the Supreme Court of Canada will hear Godfrey v. Sony Corporation, an appeal that could be one of the most important antitrust cases to ever come before. [GN] SPAR GROUP: Clothier Seeks Unpaid Wages under Labor Code -------------------------------------------------------- MELISSA J. CLOTHIER, on behalf of herself, and all others similarly situated, the Plaintiff, vs. SPAR GROUP, INC.; and DOES 1 through 10, inclusive, the Defendant, Case No. RG18926494 (Cal. Super. Ct., Oct. 29, 2018), alleges that Defendants are engaging in unlawful, unfair, deceptive and/or fraudulent business practices including, but not limited failure to pay all wages, including overtime and minimum wage; failure to provide itemized wage statements; failure to pay all wages at time of discharge; and failure to reimburse business expenses pursuant to the California Labor Code. As a direct and proximate result of those acts and practices, Defendants have received and continue to hold ill-gotten gains and property belonging to Plaintiff and the proposed class, the lawsuit says. SBS provided onsite merchandising services throughout California. SBS employed merchandisers who travel to various client locations to provide merchandising services, such as placing coupons on retail products, setting up in-store displays, and stocking movie kiosks with new releases while removing old releases.[BN] Attorneys for Plaintiff: Eric A. Grover, Esq. Robert W. Spencer, Esq. KELLER GROVER LLP 111965 Market Street San Francisco, CA 94103 Telephone: (415) 543-1305 Facsimile: (415) 543-7861 - and - Kenneth S. Gaines, Esq. Daniel F. Gaines, Esq. Alex P. Katofsky, Esq. GAINES & GAINES Agoura Road, Suite 101 Calabasas, CA 91301 Telephone: (818) 703-8985 Facsimile: (818) 703-8984 ST. JOSEPHS: Court Approves $11.9MM Settlement ---------------------------------------------- The Superior Court of Rhode Island, PROVIDENCE, SC, issued a decision granting Plaintiffs' Petition for Approval of Proposed Settlement Agreement in the case captioned ST. JOSEPH HEALTH SERVICES OF RHODE ISLAND, INC. v. ST. JOSEPHS HEALTH SERVICES OF RHODE ISLAND RETIREMENT PLAN, as amended. C.A. No. PC-2017-3856. (R.I. Super.). Stephen Del Sesto, Permanent Receiver (Receiver) for the St. Josephs Health Services of Rhode Island Retirement Plan (Plan), petitions this Court (Petition) for approval of a proposed settlement agreement (PSA) regarding claims asserted by the Receiver in a federal lawsuit (Federal Court Action), pending in the United States District Court for the District of Rhode Island. SJHSRI, owner and operator of Our Lady of Fatima Hospital (Fatima), sponsored the Plan as a retirement benefit for its employees. After years of financial distress and in the pursuit of operational efficiencies, SJHSRI entered into an affiliation agreement with RWH, a corporation that formerly owned and operated Roger Williams Hospital. The Objectors contest various terms and assignments contained in the PSA. The PSA contemplates the following pertinent terms: 1. An immediate payment of a lump sum (Lump Sum) of at least $11,150,000, which represents 95% of the Settling Defendants' combined liquid operating assets, up to a maximum of $11,900,000 if the Rhode Island Department of Labor and Training agrees to release, prior to the due date for payment of the Lump Sum, the entirety of certain funds held in escrow (approximately $750,000); 2. An assignment of CCCB's rights in CCF9; 3. An assignment to the Receiver the beneficial interest in CCCB's interest in PCC,10 including the right to request CCCB exercise the put option11; 4. An obligation that the Settling Defendants not object to the Plaintiffs' intervention in the Cy Pres proceedings; 5. An admission by the Settling Defendants regarding some of the claims asserted in the Complaint, including an admission that the Plaintiffs' damages are at least $125,000,000; 6. An obligation that the Settling Defendants, upon the Receiver's request, petition the Rhode Island Superior Court for judicial liquidation; 7. A provision providing the Settling Defendants and the Receiver will execute a security agreement and file a UCC-1 financing statement to secure payment of the Lump Sum and the Settling Defendants' other obligations under the PSA. Standard of Review In considering a motion to compromise under Rule 9019(a), a bankruptcy judge must assess and balance the value of the claims being compromised against the value of the compromise proposal. A bankruptcy judge must consider the following factors: (i) the probability of success in the litigation being compromised (ii) the difficulties, if any, to be encountered in the matter of collection (iii) the complexity of the litigation involved, and the expense, inconvenience and delay attending it and, (iv) the paramount interest of the creditors and a proper deference to their reasonable views in the premise. Whether the Receiver Acted Within his Authority To determine whether the Receiver exceeded his authority, this Court must consider the concept of receivership generally. The use of receivers originated in the English chancery court and was considered an important inherent power of the equity courts. The Appointment Order, which controls the Receiver's duties in this case, gives the Receiver broad authority to prosecute and compromise claims on the Plan's behalf: said Receiver is authorized, empowered, and directed to collect and receive the debts, property and other assets and effects of said Respondent (the Plan), with full power to prosecute, defend, adjust and compromise all claims and suits of, by, against or on behalf of said Respondent. In light of the Appointment Order's breadth, this Court can find no usurpation of authority on the Receiver's part. The Prospect Entities argue that the Receiver has presented the PSA to this Court as a fait accompli; however, the terms of the PSA express an agreement to the contrary. Paragraph 2 of the PSA best illustrates the point where it states the PSA will be null and void and the Settling Parties will return to their respective positions absent this Court's approval. Because the Receiver has the authority to settle claims on the Plan's behalf and the terms of the PSA dictate the agreement is contingent upon this Court's approval, the Receiver did not exceed the scope of his authority by conditionally entering into the PSA. In a recent bankruptcy case, the First Circuit held that the failure to seek bankruptcy-court approval for a settlement pursuant to Bankruptcy Rule 9019(a) does not render the settlement agreement nonbinding; rather, sidestepping court approval merely renders the agreement unenforceable. The implication of the Manuel Court's ruling is that merely executing a settlement without court approval is perfectly permissible; however, if either of the parties later wishes to enforce the settlement, the failure to seek bankruptcy court approval would preclude that party from doing so. Accordingly, this Court can find no usurpation of authority on the Receiver's part by merely executing the PSA in advance of this Court's approval. Whether the Objectors' Claims Are Presently Justiciable Standing Standing is a threshold inquiry into whether a party is properly before a court. When standing is at issue, the focal point shifts to the claimant, not the claim and a court must decide if the party whose standing is in question is a proper party to request an adjudication of a particular issue and not whether the issue itself is justiciable. Turning to the present context, a nonsettling defendant does not ordinarily have standing to object to a court order approving a partial settlement since the nonsettling defendant is generally not affected by the settlement and therefore, suffers no injury. The weight of authority suggests a non-settling defendant can only object to a partial settlement where it can demonstrate that it will sustain some formal legal prejudice as a result of the settlement. Ripeness Much like the standing requirement that a party must suffer an injury in fact, ripeness requires that a party present a dispute evidencing a real adverseness. A claim is not ripe when it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all. The ripeness doctrine is peculiarly a question of timing. The concept of ripeness is grounded in the idea that a court will not render advisory opinions or function in the abstract. The Objectors' Ability to Contest the PSA Prospect Entities Here, the Prospect Entities argue in chief that they are injured by the PSA's provisions assigning to the Receiver CharterCARE Community Board (CCCB)’s beneficial interest in PCC sufficient to confer standing as such an assignment violates PCC's LLC agreement. Clearly, the Prospect Entities are not parties to the PSA. Therefore, Rhode Island law dictates that the Prospect Entities would only have standing to object to the PSA's substantive terms in the homeowner context. Unlike in the foreclosure cases where banks actually instituted foreclosure proceedings and homeowners faced a present threat of eviction, here, the PSA does not even mandate CCCB exercise the put option or take any other action arising out of CCCB's interest in Prospect CharterCARE, LLC, (PCC); thus, the Prospect Entities suffer from no comparably imminent threat. As stated, whether a party has or has not suffered an injury in fact is a black-and-white proposition, the Prospect Entities cannot possibly point to any injury in fact, much less legal prejudice, because CCCB has not even attempted to exercise any rights in favor of the Receiver. Ripeness is the underlying defect with the Prospect Entities' claims: any potential injury to the Prospect Entities depends on future contingent events. This Court understands that the Receiver, if granted Rule 23(e) approval by the federal court, might request that CCCB exercise the put, for instance. However, for strategic reasons, the Receiver might choose not to do so. Further, if the Receiver is successful in the Federal Court Action in asserting that PCC received the subject assets in a fraudulent transfer, then the base of assets under PCC's charge may change significantly a put option in PCC might have considerably less value. Unless and until the Receiver attempts to enforce any rights in PCC (through CCCB), this Court does not have the luxury of rendering advisory opinions whereas here, the points are of an academic nature only. The Prospect Entities have not suffered formal legal prejudice that would justify this Court engaging in the non-traditional task of dissecting a settlement agreement like the PSA. Thus, the Prospect Entities do not have standing to object to the PSA; their objections to the PSA are not ripe; and the Prospect Entities do not have party in interest status sufficient to interject themselves into this receivership proceeding. CharterCARE Foundation (CCF) Turning to CCF's alleged basis for standing, this Court is similarly unpersuaded. CCF argues that the PSA impairs CCF's rights because it would require its purported sole member, CCCB, to discharge all CCF's directors and irrevocably assign CCF's Foundation Interest to the Receiver. The weakness of CCF's argument is that CCCB's rights in CCF are heavily disputed. Once unpacked, it appears logically impossible for CCF to suffer injury from the PSA, either now or anytime in the future. Assuming without deciding that CCCB abandoned or never had a membership interest in CCF then, by definition, CCCB cannot elect a new CCF board or liquidate the Foundation Interest. On the other hand, if CCCB did not abandon its membership interest, as succinctly stated by the Receiver, then whoever is objecting to the PSA under the name of CCF clearly will suffer no legally cognizable impact of the PSA because they have no lawful interest in CCF. Because CCF has not alleged an injury in fact or legal prejudice, it has no standing to object to the PSA. Attorney General (AG) Turning first to standing, it is well-settled that the AG has a unique role as overseer of public charities. Some courts have gone so far as to say an Attorney General is a necessary party to proceedings affecting the disposition of the assets of a charitable trust. In terms of the party in interest analysis, at least one bankruptcy court was more inclined to afford party in interest status to an attorney general where the state had a statutory basis for involving itself in reorganization. As a practical matter, allowing a single governmental body, the AG, to interject in receivership proceedings would hardly frustrate the efficiency of this Court's receivership process. In other words, this Court can contain its narrow inquiry into whether a settlement is in the best interest of a receivership estate while allowing the AG to raise objections. Nevertheless, for the same reasons explained above regarding CCF and the Prospect Entities' objections, the AG prematurely anticipates the distribution of charitable trust funds to Plan participants. Granting the Petition would not give the Receiver carte blanche to liquidate CCF in favor of the Plan; the AG even recognized the prematurity issue, which is why counsel for the AG proposed that this Court delay its ruling on the Petition before hearing the Receiver's arguments on the motion to vacate the Cy Pres Order. Therefore, even assuming the AG has standing to object to the distribution of charitable trust funds to Plan participants and satisfies the party in interest analysis, the AG's underlying objections are not ripe for dispute in this Petition. Whether the PSA is in the Best Interest of the Plan's Estate Probability of Success This Court need not even engage in the typical balancing of strengths and weaknesses of the Receiver's underlying claims to assess whether they raise a serious question. The only reason to engage in such a balancing test, weighing the pros and cons of proceeding to trial or compromising a claim, is to determine whether a receiver is satisfying his or her obligation to realize the largest possible amount of money/assets for a receivership estate. The PSA presents the rare settlement agreement where the terms are so favorable to the Plan's estate that the Receiver is unlikely to recover a higher sum by proceeding to, and prevailing at, trial. Pursuant to the PSA, the Settling Defendants have agreed to pay to the Receiver 95% of the Settling Defendants' liquid assets in exchange for a release. Further, the PSA obligates the Settling Defendants to seek judicial liquidation with the hope that the remaining, non-liquid assets can be distributed in the Plan's favor. Hence, even assuming this Court was to conclude the Receiver had a 100% chance of prevailing in his claims against the Settling Defendants, in all likelihood, the Receiver could not net a higher sum by proceeding to judgment at trial. The probability factor weighs in favor of approving the PSA. Difficulties in Collection In addition to balancing the probable outcome of a claim, courts should consider any attendant difficulties that might complicate collection of a judgment. Although not contested in most cases, the principal inquiry under this prong is whether the defendant has the ability to satisfy a judgment. In this case, the difficulty of collection turns in favor of approving the PSA. As explained, the Defendant's ability to pay is a key consideration, and here, the Settling Defendants have a limited pool of assets that will only continue to deteriorate as litigation wears on. The PSA obligates the Settling Defendants to remit the bulk of their assets in favor of the Plan's estate and, therefore, it appears every dollar the Settling Defendants spend in continuing to litigate is a dollar less available to the Plan for the ultimate benefit of the Plan's beneficiaries. Stated differently, the Receiver would jeopardize the Plan's recovery by continuing to litigate against the Settling Defendants in lieu of accepting the PSA's terms. The Settling Defendants' solvency has always been a real and concrete concern, which is why the Settling Defendants entered into the 2014 Sale in the first place. Thus, the collection factor weighs in favor of approving the PSA. Complexity of the Litigation In terms of complexity whether involving expense, delay, or inconvenience courts consider the likelihood that any recovery would be offset by the fees and costs incurred in pursuing litigation. Here, the Federal Court Action is highly complex as it involves fourteen related entities, most, if not all, of which were involved in the 2014 Sale. At a minimum, the Federal Court Action presents many of the same complications underlying any multi-party suit. Many of the underlying counts involve allegations of bad intent and issues of first impression, which are necessarily difficult to establish. At the very least, the 139-page Complaint filed in the Federal Court Action will take a great deal of time to unwind, and protracted litigation is all but guaranteed. The Federal Court Action's associated complexity suggests settlement via the PSA is an approach that favors the Plan's estate. This way, even if the Receiver is unable to prevail against the remaining non-settling entities, the Receiver ensures some source of recovery for the underfunded Plan. Paramount Interest of Creditors The creditors' perspective also sheds light on the soundness of a proposed settlement, and courts afford deference to creditors' reasonable views. This does not mean a trustee is required to demonstrate a settlement agreement operates to the satisfaction of every individual creditor. This Court has received no objection to the PSA by any creditors with claims against the Plan, suggesting the PSA does an adequate job of sweeping assets into the Plan's estate for those parties ultimately entitled to possess them. Moreover, this Court has received widespread support of the PSA from the Plan's participants. In particular, Attorney Arlene Violet, lead counsel for over 285 participants in the Plan, stated the PSA is an excellent first step in attempting to secure additional funds to bolster the Plan. Similarly, Attorney Jeffrey W. Kasle, representative for over 200 Plan participants, wrote that he represents wholeheartedly and unequivocally his support for the PSA. Attorney Christopher Callaci, counsel for about 400 Plan participants, expressed similarly unwavering support for the PSA. The creditors' perspective favors approving the PSA for purposes of this proceeding. After canvassing the issues presented by the PSA, this Court can definitively say that the PSA falls well within a range of reasonableness and therefore, the Receiver did not abuse his discretion in entering into the settlement. Therefore, this Court hereby approves the PSA for purposes of this proceeding, subject to the following two conditions: (1) the Receiver refrains from exercising any rights under the PSA prior to the federal-court's determination of whether to approve the PSA; and (2) prior to implementing, or directing that CCCB implement, any rights, whatsoever, in favor of the Receiver or the Plan derivative of CCCB's rights in CCF or PCC, the Receiver provides all parties, including but not limited to the Objectors, with twenty (20) days written notice. These two conditions are designed to ensure the Objectors have an appropriate opportunity in an appropriate proceeding to contest objectionable terms prior to their implementation by the Receiver. A full-text copy of the Superior Court's October 29, 2018 Decision is available at https://tinyurl.com/yaxwovag from Leagle.com. STEPHEN EINSTEIN: Henry Alleges Wrongful Debt Collections --------------------------------------------------------- CONSTANTINE HENRY, individually on behalf of all others similarly situated, Plaintiff v. STEPHEN EINSTEIN & ASSOCIATES, P.C.; and JOHN DOES 1-25, Defendant, Case No. 3:18-cv-15192-BRM-TJB (D.N.J., Oct. 23, 2018) seeks to stop the Defendant's unfair and unconscionable means to collect a debt. The case is assigned to Judge Brian R. Martinotti and referred to Magistrate Judge Tonianne J. Bongiovanni. Stephen Einstein & Associates, P.C. is a debt collection company. [BN] The Plaintiff is represented by: Ben A. Kaplan, Esq. 280 Prospect Ave. 6G Hackensack, NJ 07601 Telephone: (201) 803-6611 Facsimile: (866) 596-4973 E-mail: benkap232@aol.com STUCKY LAUER: Court Approves Settlement in Maloy FDCPA Suit ----------------------------------------------------------- The United States District Court for the Northern District of Indiana, Fort Wayne Division, issued an Opinion and Order granting in part Parties' Joint Motion to Certify Class and Final Approval of Class Settlement in the case captioned SAMUEL MALOY (on behalf of Himself and others similarly situated), Plaintiff, v. STUCKY, LAUER & YOUNG, LLP, Defendant. Cause No. 1:17-CV-336-TLS. (N.D. Ind.). This matter is before the Court on the parties' Joint Motion for Final Approval, resolving the Plaintiff's claims under the Fair Debt Collection Practices Act (FDCPA). The Plaintiff, on behalf of himself and others similarly situated, filed suit against Stucky, Lauer & Young, LLP on August 9, 2017. The Plaintiff stated that the Defendant sent a letter in connection with an alleged debt owed, which violated the FDCPA because it failed to disclose the Plaintiff's rights under Section 1692g(a)(4). Pursuant to Rule 23, the Court will evaluate the notice provided to the class members, the adequacy of the settlement agreement, the additional payment to the Named Plaintiff, and the propriety of the attorney's fees. Notice Rule 23 requires that the Class Members receive "the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. Reasonable notice is required to all class members who would be bound by a proposed settlement. Of the 925 notices sent, 879 were successfully delivered in the first instance, 10 were forwarded to a new address, and 36 were returned to Class Counsel without any known forwarding address. Class Counsel states that all reasonable efforts were made to locate current addresses for all class members, in particular, by searching for such addresses using the National Change of Address Database. Individual notice, by mail, to all reasonably known class members is sufficient in the usual case. The parties identified 925 class members through discovery, made concerted efforts to identify current addresses for these individuals, and distributed the notice accordingly. Thus, the Court finds that due process and the notice requirements of Rule 23 have been satisfied. Adequacy of the Settlement Agreement A district court must scrutinize and evaluate a class action settlement to determine whether it is fair, reasonable, and adequate. In making these determinations, a court considers the strength of a plaintiff's case compared to the defendants' offered settlement amount; the likely complexity, length, and expense of the litigation; the amount of opposition to settlement among affected parties; the opinion of competent counsel and the stage of the proceedings and the amount of discovery completed at the time of settlement. Pursuant to 15 U.S.C. Section 1692k(a)(2)(B), the FDCPA imposes a limit on the amount of damages a debt collector may pay in a class action. In the case of a class action, (i) such amount for each named plaintiff as could be recovered under subparagraph (A), and (ii) such amount as the court may allow for all other class members, without regard to a minimum individual recovery, not to exceed the lesser of $500,000 or 1 per centum of the net worth of the debt collector. The Seventh Circuit holds that the statutory term net worth means book net worth or balance sheet net worth. The Defendant has represented to Class Counsel and produced business records demonstrating that its net worth is minimal or negative. Additionally, Class Counsel has determined that the Defendant's net worth does not and could not conceivably be found to exceed $500,000. Additional litigation over the Defendant's net worth is likely futile. The current settlement, which provides $5,000 for distribution among the class, likely represents the most damages available. The Court agrees that the Settlement Agreement is fair, reasonable, and adequate. Attorney's Fees and Payment to the Named Plaintiff Additional Payment to the Named Plaintiff Class Counsel requests that the Named Plaintiff be given $1,000 from the settlement fund, which is the maximum amount he can recover under the FDCPA. Incentive awards are justified when necessary to induce individuals to become named representatives. The Named Plaintiff testified in a declaration that he was an active participant in the litigation since before the initial complaint was filed. He stated that he reviewed a draft version of the complaint, discussed edits and revisions to the complaint with counsel, and regularly communicated with Class Counsel. Id. Given the contribution of the Named Plaintiff, the Court finds that the $1,000 payment is appropriate and within statutory bounds. Attorney's Fees Under Rule 23(h), the Court may award reasonable attorney's fees and nontaxable costs that are authorized by law or by the parties' agreement. Here, the parties have agreed that the Defendant will not object to up to $30,000 in attorney's fees and $3,000 in fees and expenses that Class Counsel requests, payments entirely separate from those made to class members. Courts favor the settlement of attorney's fees by the parties. Nevertheless, the Court must evaluate this amount to determine its reasonableness. As noted during the Fairness Hearing, the Court requested additional briefing on attorney's fees, due thirty days after the hearing. Accordingly, until the Court receives additional briefing regarding the calculation of attorney's fees, the Court WITHHOLDS its ruling regarding Class Counsel's requests for attorney's fees and expenses. The Court grants, in part, the parties' Joint Motion to Certify Class and Final Approval of Class Settlement. A full-text copy of the District Court's October 25, 2018 Opinion and Order is available at https://tinyurl.com/ya3e4e3b from Leagle.com. Samuel Maloy, on behalf of himself and all others similarly situated, Plaintiff, represented by Russell S. Thompson, IV -- rthompson@thompsonconsumerlaw.com -- Thompson Consumer Law Group PLLC. Stucky, Lauer & Young, LLP, Defendant, represented by Briane M. House -- bhouse@skilesdetrude.com -- Skiles DeTrude. SUUNTO: Settles Class-Action Lawsuit for Certain Dive Computers --------------------------------------------------------------- John Liang, writing for Deeper Blue, reports that Suunto has settled a class-action lawsuit in the United States regarding certain dive computer models that plaintiffs alleged were defective. The models in question were built between January 1st, 2006 and August 10th, 2018, and include the Cobra, Cobra 2, Cobra 3, Cobra 3 Black, Vyper, Vyper Novo, Vyper 2, Vyper Air, HelO2, Gekko, Vytec, Vytec DS, Zoop, Zoop Novo, Mosquito, D4, D6, D9, D4i, D6i, D4i Novo, D6i Novo, D9tx, and DX. The lawsuit claimed that those models that Suunto built and sold and Aqua Lung distributed and sold were defective, and the readings for depth and temperature were inaccurate. While both Suunto and Aqua Lung denied that any wrongdoing was done and that any defect with respect to the depth pressure sensors existed, "The parties agreed to resolve these matters before these issues were decided by the Court." So if you bought a new dive computer (not a used one) in the USA (and not another country) in the specified time frame and it turns out that the depth pressure sensor doesn't work properly, under the settlement you're entitled to a free inspection and repair or even getting your dive computer replaced. To find out if you qualify for the settlement, go to suuntodivecomputersettlement.com. [GN] TENNESSEE: Prelim Injunction Bid in Robinson Suit Partly Okayed --------------------------------------------------------------- In the case, FRED ROBINSON et al., Plaintiffs, v. DAVID W. PURKEY, Commissioner of the Tennessee Department of Safety and Homeland Security, in his official capacity, et al., Defendants, Case No. 3:17-cv-01263 (M.D. Tenn.), Judge Aleta Trauger of the U.S. District Court for the Middle District of Tennessee, Nashville Division, granted in part and denied in part Plaintiffs Robinson, Ashley Sprague, and Johnny Gibbs' Motion for Preliminary Injunction. The case is the second of two challenging Tennessee's practice of rescinding the driver's licenses of qualified Tennessee drivers who are unable, due to their indigence, to pay the fines, costs, and/or litigation taxes assessed against them in criminal cases or cases involving certain quasi-criminal civil offenses. In the first case, Thomas v. Haslam, a plaintiff class challenged the Commissioner's statutorily-mandated revocation of the driver's licenses of indigent debtors who, for a period of a year or more, were unable to pay the fines, costs, and/or litigation taxes assessed against them related to a criminal conviction. The Court concluded that the challenged statute ran afoul of a long line of Supreme Court precedents invalidating criminal procedures that, in effect, imposed harsher consequences on the defendants based on their indigence. The Court, therefore, granted summary judgment to the Thomas plaintiffs and enjoined the enforcement of the statute. The Court's decision in Thomas is currently on appeal to the Sixth Circuit. The statute at issue in the case, Tenn. Code Ann. Section 55-50-502(a)(1)(H), also empowers the Commissioner to take away the driver's licenses of some Tennessee drivers who, because of their indigence, cannot pay fines, costs, and/or litigation taxes against them. This statute differs from the statute at issue in Thomas, however, in that (1) the statute at issue here applies only to fines, costs, and litigation taxes related to convictions for traffic offenses—also known as "traffic debt"; (2) this statute does not require a year of nonpayment before a debtor's driver's license is taken away but, rather, empowers TDSHS to rescind the license as soon as it receives notice of nonpayment; (3) this statute merely authorizes the Commissioner to take the debtor's license but does not require him to do so—although, in practice, the Commissioner appears to treat the suspensions as automatic; and (4) the loss of the debtor's driver's license is classified as a "suspension" rather than a "revocation." Although the case has not advanced to the point where either party has moved for a final judgment, the Plaintiffs have sought a preliminary injunction to halt the suspensions at issue and provide relief to those whose licenses have already been suspended. Accordingly, the Court is called upon to determine whether (1) these Plaintiffs are likely to succeed in establishing that the rule that this court applied in Thomas would also prevail in the case; and, (2) if so, whether any other factors counsel against providing preliminary relief. Plaintiffs Robinson, Sprague, and Gibbs are among the thousands of Tennesseans who have had their driver's licenses suspended for failure to pay traffic debt. On Sept. 13, 2017, they filed the Class Action Complaint in the case against the Commissioner and a few representative local government Defendants involved in imposing traffic debt and informing TDSHS of drivers' eligibility for suspension. The Plaintiffs raised three constitutional challenges to the state's laws governing suspension of driver's licenses for nonpayment of traffic debt: 1. Count I alleges that the Defendants' effecting and continuing the suspension of people's driver's licenses for nonpayment of traffic debt without any inquiry into, or consideration of, the license holder's ability to pay violates the right to fundamental fairness guaranteed by the Equal Protection and Due Process Clauses of the Fourteenth Amendment; 2. Count II alleges that the Defendants' effecting the suspension of driver's licenses -- either with no notice or right to an ability-to-pay hearing, or with notice but only a right to a hearing on whether the license holder has failed to pay the relevant traffic debt -- violates the right to procedural fairness guaranteed by the Due Process Clause of the Fourteenth Amendment; and 3. Count III alleges that the Defendants' effecting and continuing the suspension of driver's licenses from indigent people who owe traffic debt to the state and its counties and municipalities, but not imposing similar sanctions on other judgment debtors, violates the Equal Protection Clause of the the Fourteenth Amendment. The Plaintiffs sought declaratory and injunctive relief, including reinstatement of the driver's licenses of Robinson, Sprague, and all members of the putative class, other than those facing additional legal barriers to having a driver's license, such as a suspension or revocation for a reason other than the failure to pay traffic debt. On Sept. 21, 2017, Robinson, Sprague, and Gibbs filed a Motion for Preliminary Injunction, as well as a contemporaneous, more narrowly tailored Motion for Temporary Restraining Order ("TRO") focusing on Robinson and Sprague. On Oct. 5, 2017, the court granted the requested TRO, ordering the Commissioner to restore Robinson's and Sprague's licenses. The Court set a hearing regarding whether the TRO should be converted to a preliminary injunction, but the parties came to an agreement to allow the TRO to remain in place until the resolution of the broader Motion for Preliminary Injunction. On Dec. 15, 2017, the plaintiffs filed an Amended Complaint, followed shortly thereafter by a Corrected Amended Complaint. The Plaintiffs' constitutional theory of the case remained the same, although they revised some facts and added a fourth Plaintiff, Brianna Booher, who has since voluntarily withdrawn from the case. Additional motions were filed, and, on June 11, 2018, the court issued a Memorandum and Order resolving several motions to dismiss, certifying a statewide class, and concluding that the Court could not resolve the Motion for Preliminary Injunction without an evidentiary hearing. The local government Defendants have since filed Motions to Dismiss as Moot, to which they attached affidavits, suggesting that their respective local government entities have adopted procedures consistent with the protections to which the Plaintiffs argue drivers are entitled. As a result of the new factual issues raised by the local government Defendants, the Plaintiffs have withdrawn their request for a preliminary injunction with regard to those Defendants, and a separate briefing schedule has been established with regard to those Defendants' motions. The Plaintiffs now seek a preliminary injunction only against the Commissioner. Because the Commissioner's policies affect all Tennesseans, the Plaintiffs' request for a preliminary injunction against the Commissioner is unaffected by changes in policies by any isolated local government or governments. With regard to the Commissioner, they ask the Court to grant a preliminary injunction providing for the following relief: a. On behalf of all the Named Plaintiffs and the Statewide Class, enjoining Defendant Purkey from suspending or permitting the suspension of any driver's license pursuant to Tenn. Code Ann. Section 55-50-502(a)(1)(H) or (I) without either notice to the licensee that includes the offer of a fact-based inquiry, with participation by the licensee, as to the licensee's ability to pay and, if such inquiry is requested, a factual determination, prior and as a prerequisite to license suspension, that the amount sought is within the licensee's ability to pay, or certification from the reporting county that notice containing such offer has been afforded and (if inquiry is requested) such factual determination has been made. b. On behalf of Plaintiffs Robinson and Sprague and the Statewide Class except for the members of the Multi-Barrier Subclass, enjoining Defendant Purkey to einstate all driver's licenses that were suspended for nonpayment of Traffic Debt prior to the date of entry of the preliminary injunction, at no cost to the license holders; waive all reinstatement fees; and notify all persons whose licenses were suspended of the reinstatement. A preliminary injunction hearing was set for Sept. 5, 2018, but, after the parties submitted the written and documentary materials on which they intended to rely, they concluded that an in-person hearing would be unnecessary and agreed to submit the question to the court on the written record. Judge Truager finds that the Plaintiffs have set forth a plausible legal framework pursuant to which they would succeed with regard to Counts I and III of their Corrected Amended Complaint, and the Commissioner has not articulated any affirmative defense or jurisdictional bar that would prevent the plaintiffs from prevailing on those claims. Moreover, if the Plaintiffs are correct with regard to Counts I and III, their theory would likely also entitle them to judgment on Count II. The Plaintiffs' arguments, however, are contingent on factual premises about the importance of driving to economic life in Tennessee that are amenable to corroboration or refutation. Because the Judge finds a high likelihood of success with regard to the Plaintiffs' constitutional challenges, she finds a low likelihood that the injunctive relief would intrude on any powers legitimately retained by the Commissioner. The possibility of injury to the public interest based on intrusion on the Commissioner's authority, therefore, weighs, at most, slightly against granting the Plaintiffs relief. Any such consideration, moreover, would be outweighed by the public interest in vindicating the constitutional rights guaranteed to Tennesseans, not merely by the drafters of the Constitution, but by the State of Tennessee itself. The Judge acknowledges that operating with large troves of sometimes years-old government data is often more difficult in practice than it would seem, to an outsider, that it should be in the abstract. Even if reinstatements went as smoothly as could possibly be hoped, it would still create at least some strain on TDSHS' resources. The administrative costs related to the Plaintiffs' requested relief regarding existing suspensions, therefore, weigh against granting the relief. As to lost revenue, the Judge it clear that the Plaintiffs' requested relief would, at least over the short term, disrupt a revenue stream on which TDSHS expected it could rely. Those lost revenues, therefore, weigh against granting injunctive relief under both the third and fourth preliminary injunction prongs. Finally, in light of the Plaintiffs' concession that they only seek retrospective relief with regard to individuals who currently cannot pay their traffic debt, the Judge will revise the relief requested regarding existing suspensions to permit TDSHS to continue to charge reinstatement fees to drivers if it, through its own auspices or in coordination with local authorities, adopts a system for identifying which applicants for reinstatement are indigent and which are not. She, moreover, will not, at this juncture, require TDSHS to engage in any ongoing efforts to affirmatively restore licenses en masse. For the foregoing reasons, Judge Trauger granted in part and denied in part the Plaintiffs' Motion for Preliminary Injunction. The Commissioner is ordered to grant the relief as set out in the accompanying order. A full-text copy of the Court's Oct. 16, 2018 Memorandum is available at https://is.gd/kQZGVa from Leagle.com. Fred Robinson, Ashley Sprague & Johnny Gibbs, on behalf of themselves and all others similarly situated,, Plaintiffs, represented by Claudia Wilner -- wilner@nclej.org -- National Center for Law and Econimic Justice, Edward P. Krugman -- krugman@nclej.org -- Civil Rights Corps, Eric Halperin, Civil Rights Corps, Jonas Wang -- jonas@civilrightscorp.org -- Civil Rights Corps, Jonathan Jacob Cole, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Josh Spickler -- josh@justcity.org -- Just City, Matthew G. White -- mwhite@bakerdonelson.com -- Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Premal Dharia -- premal@civilrightscorps.org -- Civil Rights Corps, Tara Mikkilineni, Civil Rights Corps & Theresa Lau, National Center for Law and Econimic Justice. David W. Purkey, Commisssioner of the Tennessee Department of Safety and Homeland Security, in his official capacity, Defendant, represented by Alexander Stuart Rieger, Tennessee Attorney General's Office, Andrew B. Campbell, Tennessee Attorney General's Office, Sara Ohlman, Tennessee Attorney General's Office & Scott C. Sutherland, Tennessee Attorney General's Office. Debby Moss, Circuit Court Clerk of Wilson County, Tennessee, in her official capacity, & Wilson County, Tennessee, Defendants, represented by Kristin Ellis Berexa, Farrar & Bates, Mark Ennis McGrady, Farrar & Bates & Michael Ray Jennings . Lebanon, Tennessee & Kim Chambers, Lebanon Municipal Court Clerk, Defendants, represented by Kristin Ellis Berexa, Farrar & Bates, Mark Ennis McGrady, Farrar & Bates & Phillip Andrew Wright, Jr., City of Lebanon. TESLA INC: Class Action Settlement Obtains Final Court Okay ----------------------------------------------------------- Perry Cooper, writing for Bloomberg Law, reports that Telsa Inc. and car owners won final approval Nov. 2 of a $5.4 million settlement resolving claims that advanced Model S and Model X features appeared later than promised. Each of the 33,000 class members who submits a valid claim will receive between $25 and $280. "Given those figures, the recovery obtained under this settlement is significant," Judge Beth Labson Freeman wrote for the U.S. District Court for the Northern District of California. [GN] TEXAS: 5th Cir. Vacates Certification of 2 Classes in J. Ward Suit ------------------------------------------------------------------ In the case, JOSEPH WARD, by his next friend Frances Bourliot; MICHAEL ANDERSON, by his next friend Phil Campbell; ISAAC LEMELLE, by his next friend Mark Westenhover; CECIL ADICKES, by his next friend Elsie Craven; MICHAEL GIBSON, by his next friend Mark Westenhover; MARC LAWSON, by his next friend Krista Chacona; JENNIFER LAMPKIN, by her next friend Elsie Craven, Plaintiffs-Appellees, v. DR. JOHN HELLERSTEDT, in his official capacity as Commissioner of the Texas Department of State Health Services, Defendant-Appellant, Case No. 17-50899 (5th Cir.), the U.S. Court of Appeals for the Fifth Circuit vacated the district court's class certification order and remanded for further proceedings consistent with its Opinion. Under Texas law, criminal defendants adjudged incompetent to stand trial and individuals acquitted of crimes by reason of insanity may, under certain circumstances specified by statute, be committed to facilities for inpatient mental health treatment, restoration services, evaluation and/or observation. The State of Texas does not have enough beds in its hospitals, which generally operate at full capacity, to accommodate at once all persons who have been committed for inpatient services. To equitably allocate available hospital beds, the State generally uses a "first-come, first-served" approach. Individuals who are awaiting admission to a state hospital are generally detained in county jails pending their transfer, sometimes for months. Joseph Ward, Michael Anderson, and Isaac Lemelle, the original Plaintiffs in the 42 U.S.C. Section 1983 suit, amended their complaint twice, adding Marc Lawson, Jennifer Lampkin, Cecil Adickes, and Michael Gibson as Plaintiffs. In the Plaintiffs' second amended complaint, Ward, Anderson, Lemelle, Lawson and Lampkin allege that, though they had been ordered committed for inpatient competency restoration services by Texas courts, they had been detained in county jails awaiting admission to state hospitals for periods ranging from 15 to 27 weeks. Adickes and Gibson allege that, though they had been acquitted of criminal charges by reason of insanity and ordered committed to maximum security unit ("MSU") facilities for evaluation and treatment, they had been detained in county jails awaiting admission to such facilities for two weeks and ten weeks, respectively. The Plaintiffs claim that Defendant has violated their Fourteenth Amendment due process rights by confining them in county jails for unreasonable periods of time without criminal convictions and failing to provide them with the appropriate mental health treatment and/or services during their confinement. They have further requested that the court certify two classes of similarly situated Plaintiffs; issue an order declaring that the Defendant has violated their Fourteenth Amendment due process rights; and issue preliminary and permanent injunctive relief prohibiting Defendant from violating such rights. On Nov.r 28, 2016, the Plaintiffs moved for class certification. The Defendant initially opposed Plaintiffs' motion under Rule 23 of the Federal Rules of Civil Procedure ("Rule 23"). Without responding to the Plaintiffs' request for guidance on how to proceed, on Sept. 1, 2017, over nine months after the Plaintiffs filed their motion for class certification, the district court entered an order purporting to certify the following two classes of Plaintiffs: (1) All persons who are now, or will be in the future, charged with a crime in the State of Texas, and (a) who are ordered to a Texas Department of State Health Services facility where they are to receive competency restoration services; and (b) for whom the Texas Department of State Health Services receives the court order; but (c) who remain detained in a Texas county jail ("Incompetent Detainee(s)"; and (2) All persons who are now, or will be in the future, charged with a crime in the State of Texas and who are found not guilty by reason of insanity, and (a) who are ordered to receive evaluation-and-treatment services at a Texas Department of State Health Services facility; (b) for whom the Texas Department of State Health Services receives the court order; but (c) who remain detained in a Texas county jail for more than 14 days ("Insanity Acquittee(s)". The district court did not, however, explicitly appoint the named Plaintiffs as the class representatives as they had requested. Instead, it ordered the Plaintiffs to file yet another amended complaint including the named Plaintiffs to be appointed as the class representatives for the two classes. On September 29, 2017, while the Defendant's Rule 23(f) request for permission to appeal the district court's class certification order was pending, the Plaintiffs filed their third amended complaint, in which they added the following named Plaintiffs: Kenneth Jones, a criminal defendant adjudged to be incompetent to withstand trial; and Mary Sapp, who had been acquitted of criminal charges due to insanity. On Oct. 17, 2017, the Plaintiffs filed a motion requesting that the district court appoint not only Jones and Sapp as the class Representatives, but also Lawson, Lampkin, Adickes, and Gibson, which the Defendant opposed. On the same date, the Defendant requested that the district court stays proceedings pending his appeal of the class certification order. The Plaintiffs agreed to the stay request. On Nov. 2, 2017, without ruling on the Plaintiffs' motion to appoint the class representatives, the district court entered an order staying all proceedings. While the Defendant appeals the district court's class certification order on multiple grounds, his primary arguments are that (1) the district court lacked jurisdiction to enter its class certification order because the Plaintiffs' claims, and therefore, the entire action, became moot prior to the district court entering such order; and (2) even if this case is not moot, the district court's class certification order is deficient under Rule 23. The Fifth Circuit holds that the district court failed to conduct a rigorous analysis of any of the Rule 23(a) factors and, therefore, erred in certifying the Incompetent Detainee and Insanity Acquittee classes. It finds that the district court's unsupported conclusion that typicality and adequacy are satisfied, coupled with its failure to identify specific class representatives and meaningfully analyze their fitness to serve in such capacity, defies the mandate to conduct a rigorous Rule 23(a) analysis including detailed written reasons that reference the facts and claims at hand. Thus, the district court erred on this basis also in certifying the Incompetent Detainee and Insanity Acquittee classes. In addition, the Court finds that while the plaintiffs seeking class certification are not required to spell out every jot and tittle of injunctive relief at the class certification stage, they must be able to explain how a court could define or enforce meaningful injunctive relief. It notes, therefore, that to comply with Rule 23(b)(2), the Plaintiffs will, at minimum, have to describe in some kind of detail from what actions or inactions the Defendant should be restrained. A general request that the Defendant be restrained from violating the Plaintiffs' Fourteenth Amendment protections is insufficient. For these reasons, the Fifth Circuit vacated the district court's class certification order and remanded the matter to the district court for further proceedings consistent with its Opinion. A full-text copy of the Court's Oct. 16, 2018 Opinion is available at https://is.gd/aMawTF from Leagle.com. Thomas A. Albright, for Defendant-Appellant. Peter Thomas Hofer, for Plaintiff-Appellee. Rance Craft, for Defendant-Appellant. Beth L. Mitchell, for Plaintiff-Appellee. John Michael Gaddis -- mgaddis@winston.com -- for Plaintiff-Appellee. Michael Abrams -- mabrams@lathropgage.com -- for Defendant-Appellant. Lisa Snead, for Plaintiff-Appellee. TRANS EXPRESS: Fails to Pay OT to Drivers, Simmons Suit Claims -------------------------------------------------------------- CHARLENE SIMMONS, individually and on behalf of all others similarly situated, Plaintiff v. TRANS EXPRESS INC., Defendants, Case No. 1:18-cv-05938-ENV-RLM (E.D.N.Y., Oct. 24, 2018) is an action against the Defendant's failure to pay the Plaintiff and the class overtime compensation for hours worked in excess of 40 hours per week. The Plaintiff Simmons was employed by the Defendant as driver. Trans Express Inc. is a bus shuttle and charter rental company in New York City. [BN] The Plaintiff is represented by: Abdul K. Hassan, Esq. ABDUL HASSAN LAW GROUP, PLLC 215-28 Hillside Avenue Queens Village, NY 11427 Telephone: (718) 740-1000 Facsimile: (718) 740-2000 E-mail: abdul@abdulhassan.com TRUNKETT & TRUNKETT: Wins Dismissal of FDCPA Suit ------------------------------------------------- Gabriel Neves, writing for Cook County Record, reports that U.S. District Judge Ruben Castillo issued a 12-page ruling Oct. 10 in the lawsuit filed by Katrina Jennings, on her and other customers' behalf, against law firm Trunkett & Trunkett PC. Castillo granted Trunkett & Trunkett's motion to dismiss the suit without prejudice. Jennings sued the firm in 2017 on allegations of abusing provisions of the Fair Debt Collection Practices Act when it attempted to collect debt of credit accounts from her issued by Maroon Financial Credit Union. In his ruling, Judge Castillo stated Jennings' claims were barred by the Rooker-Feldman doctrine, which "'prevents lower federal courts from exercising jurisdiction over cases brought by state-court losers challenging state-court judgments rendered before the district court proceedings commenced,'" the ruling states. The firm filed a suit on behalf of Maroon Financial last October against Jennings in an attempt to collect a debt. As stated in the ruling, "on Feb. 21, 2018, the Circuit Court of Cook County entered a default judgment against plaintiff of $3,182.53," as a result of the credit union's complaint, which alleged that "principal, interest, and attorneys' fees were 'presently due'" to the creditor. Two days after the state court ruling, Jennings filed the suit in federal court alleging the creditor violated the FDCPA in regards to how the creditor was stated in the summons (as Maroon Financial C.) and on the complaint (as Maroon Financial Credit Union), as well as the allegation it attempted to collect attorneys' fees that it had no right to, and misrepresented amount of the alleged debt. In April, Trunkett & Trunkett filed the motion to dismiss the lawsuit on the grounds the plaintiff had failed to state a claim for relief and that her claims were barred by res judicata, meaning that the matter has previously been handled by another court and may not be pursued further, and Rooker-Feldman. Jennings is represented by attorneys Celetha Chatman, Esq. -- cchatman@communitylawyersgroup.com -- and Michael J. Wood, Esq. of Community Lawyers Group Ltd., of Chicago. Trunkett & Trunkett is represented by attorneys James J. Sipchen, Esq. -- jsipchen@pretzel-stouffer.com -- and Thomas Vincent-Paul Draths, Esq. -- tdraths@pretzel-stouffer.com -- of Pretzel & Stouffer Chtd., of Chicago. U.S. District Court for the Northern District of Illinois case number 1:18-cv-01413 [GN] ULTRA SONIC: Underpays Car Wash Attendants, Blanco et al. Claim --------------------------------------------------------------- SELVIN BLANCO, and LEA CALEDONIO MORALES, individually and on behalf of all others similarly situated, Plaintiffs, v. ULTRA SONIC RVC, INC., and DONALD GELESTINO, Defendants, Case No. 2:18-cv-05962-SJF-GRB (E.D.N.Y., Oct. 24, 2018) seeks to recover from the Defendants unpaid overtime compensation under the Fair Labor Standards Act. The Plaintiffs Blanco and Morales were employed by the Defendants as car wash attendants. Ultra Sonic RVC, Inc. is a domestic corporation duly organized and existing under and by virtue of the laws of the State of New York. The Company offers car wash services. [BN] The Plaintiffs are represented by: Neil H. Greenberg, Esq. NEIL H. GREENBERG & ASSOCIATES, P.C. 4242 Merrick Road Massapequa, NY 11758 Telephone: (516) 228-5100 E-mail: nhglaw@nhglaw.com UNITED KINGDOM: Court Rules in Favor of PSNI, Police Authority -------------------------------------------------------------- BBC News reports that the PSNI and the Police Authority face a holiday pay bill of up to GBP30m after a tribunal ruled in favour of a class action brought by a group representing more than 3,700 officers and staff. A judge said staff were owed money as their holiday pay had been based on basic working hours, not the actual hours worked including overtime. He said the pay issue was "extremely serious" and breached European law. The PSNI has been contacted for comment by BBC News NI. The case was brought by a group of 14 lead claimants, 11 police officers and three civilian staff members. The group represents police constables and sergeants, to whom Chief Constable George Hamilton is answerable -- and civilian support workers, to whom the Northern Ireland Policing Board is answerable. The industrial tribunal's decision could result in the two bodies facing an estimated bill of GBP30m in relation to the unlawful deductions dating back 20 years. Solicitor John McShane, from McCartan Turkington Breen, represented 11 of the claimants. "The issue in question was whether these groups should have their overtime and other allowances included in the calculation of their normal pay, in order to work out their holiday pay entitlements," he said. "Up until now, holiday pay has been based on working basic contracted hours and has not taken into account the often extensive additional hours required by their work." He said the legal claim was based on a case in Britain in 2014 in which the Employment Appeal Tribunal ruled that overtime should be included in holiday pay. Legislation was introduced in England and Wales to limit backdated claims to two years, but Mr McShane said no equivalent legislation was passed by the Northern Ireland Assembly. 'Extremely serious' Delivering the industrial tribunal's decision, Judge Kelly said that overtime is often a requirement of working for the police service. But he said that the failure to provide the correct annual leave "is an extremely serious matter going to the heart of one of the fundamental rights of the European Union". In reaching his decision he said: "The present claims appear to highlight a situation where a clear entitlement under the Working Time Directive has been effectively ignored and avoided for a significant period of time and continues to be avoided. "It is particularly concerning that this has been done by a public authority." Mr McShane said the chief constable had previously written to claimants, proposing that in future staff would receive holiday pay, including overtime, averaged out over the year. "This offer was too little too late by the chief constable and we are therefore delighted on behalf of our clients that the tribunal has expressly stated that that there is no limit on the amount of deductions which can be ordered to be paid by the employer," said Mr McShane. "We will now be entering into negotiations to bring a financial conclusion to the matter." [GN] UNITED STATES: Veterans File Class Action Over Benefits ------------------------------------------------------- RJ Vogt, writing for Law360, reports that for decades, a quirk of America's legal system has blocked veterans from banding together in class action lawsuits over benefits. But after a string of recent court rulings leveled that hurdle, a newly proposed class suit is challenging the denial of medical reimbursements to veterans under a controversial new rule. The case, filed Oct. 30 by the National Veterans Legal Services Program on behalf of U.S. Coast Guard veteran Amanda Wolfe, takes aim at a regulation the Department of Veterans Affairs enacted earlier this year to forbid refunds for some costs incurred by those with third-party insurance when they receive emergency treatment at non-VA hospitals. Up until the past two years, such an ambitious suit -- seeking to keep billions of dollars in expenses from being pushed onto veterans -- could not have been filed with the U.S. Court of Appeals for Veterans Claims. In August, however, the CAVC issued a "watershed" decision, reversing its long-standing opposition to entertaining class actions and opening the door to Ms. Wolfe's case. According to her petition, the VA's new regulation violates the Emergency Care Fairness Act of 2010 by forcing veterans with health insurance to pay for expenses that veterans without health insurance would get refunded. If Wolfe is able to obtain class action certification, her suit could represent "hundreds of thousands of veterans" affected by the new rule. While the suit isn't the first putative class action filed in the wake of the CAVC decision, it's further proof of a new front in the fight for veterans' medical rights, some advocates suggest. Attorney Bart Stichman, executive director and co-founder of NVLSP, said the ability to file Wolfe's suit as a class action is a crucial change in the way veterans benefits claims are handled. "If our class is certified by the court, then all of these veterans who've been, we believe, wrongly denied, will have access to the lawyers serving as class counsel, whereas now they don't have access," he said. "We don't know who they are and they don't know who we are." Without class actions, veterans must navigate the complex legal system surrounding their benefits claims on a person-by-person basis — often without a lawyer. The lack of legal access for veterans has its roots in a Civil War-era statute that barred a lawyer from charging veterans more than $10 in legal fees for a benefits claim. Mr. Stichman said it was a fair price back in 1862 but eventually became an economic bar to attorneys representing veterans. In their stead, major veterans organizations like the American Legion and the Disabled American Veterans began providing free nonlawyers to represent veterans before the VA. Congress eventually began allowing attorneys to charge fees of up to 20 percent of past-due benefits in 2007, but according to the Board of Veterans' Appeals' most recent report to Congress, only 15.3 percent of the 52,000 cases the board handled in 2017 involved attorney representation -- as compared to 49 percent represented by the American Legion or Disabled American Veterans. "Class actions ensure that these veterans, the majority of whom are not represented by lawyers, have representation on a common legal issue that affects of a lot of similarly situated people," Mr. Stichman said. The CAVC, however, has refused to handle class actions for most of its 30-year history. Its 1991 decision in Harrison v. Derwinski concluded that it lacked authority for such cases due to statutory constraints that limited its jurisdiction to reviewing Board decisions on an individual basis. That ruling held until April 2017, when Vietnam War veteran Conley Monk's proposed class action over decision delays at the VA made it to the U.S. Court of Appeals for the Federal Circuit. There, a trio of circuit judges found "no persuasive indication that Congress intended to remove class action protection for veterans" when it created the CAVC, remanding the case. Although the CAVC denied Monk's bid to represent himself and a class of similarly situated vets in its August ruling, it did note that it would begin entertaining class actions in accordance with the Federal Circuit's findings. "This holding is a seismic shift in our precedent," wrote Chief Judge Robert N. Davis. "The Court's decision will shape our jurisprudence for years to come and, I hope, bring about positive change for our Nation's veterans and ensure that justice is done more efficiently and timely." Mr. Stichman estimated around 10 proposed class actions have been filed at the CAVC since it decided to start accepting them, but none has yet been certified. He hopes to change that with Wolfe's suit, which represents the latest salvo in a long-running fight over emergency medical care reimbursements. The battle dates back to 2014, when NVLSP filed suit on behalf of Air Force vet Richard Staab after he was denied reimbursement for $48,000 in emergency care costs because secondary insurance had covered part of the bill. That lawsuit, Staab v. McDonald , led the CAVC to invalidate the VA regulation blocking reimbursement. The court's April 2016 decision found that Congress intended the VA to step in as a "secondary payer" when other insurers covered only a portion of the cost of a veteran's emergency treatment. For the next 21 months, the VA put a moratorium on deciding tens of thousands of pending reimbursement claims. It didn't begin deciding the backlog until early this year, after issuing a new regulation in January to replace the one struck down in the Staab case. The amended rule expanded the Emergency Care Fairness Act's nonreimburseable expenses from only copayments or "similar payments" to include deductibles and coinsurance as well. When Wolfe needed an emergency appendectomy in September 2016 that cost $22,348.25, her employer-sponsored health insurance covered everything except $2,558.54, which she paid out of her own personal savings. After she filed a reimbursement claim with the VA, the department denied her bid because the remaining money owed fell under the category of copayments, deductibles and coinsurance. Had she not signed up for employer-sponsored health insurance in the first place, however, the VA would have paid the entire $22,348.25 without trouble. In a statement, Wolfe said "there's power in numbers." "This is not right, and many of the veterans who need this help from the VA are old and sick and not able to fight this battle," she added. A representative for the VA declined to comment on the case. Ms. Wolfe is represented by Barton F. Stichman and Patrick A. Berkshire of the National Veterans Legal Services Program and Mark B. Blocker, Kara L. McCall, Emily M. Wexler, Lindsay K. Eastman and Eric T. O'Brien of Sidley Austin LLP. Counsel for Secretary of Veterans Affairs' Robert Wilkie is not yet available. The case is Wolfe et al. v. Wilkie, number 18-6091 in the U.S. Court of Appeals for Veterans Claims. [GN] UNLIMITED HEIGHTS: Govantes Seeks Unpaid Wages under FLSA --------------------------------------------------------- JOSE ANTONIO GOVANTES and all others similarly situated under 29 U.S.C. 216(b), the Plaintiff, vs. UNLIMITED HEIGHTS SCAFFOLD SERVICES, LLC, RICARDO MARTINEZ, and JANETTE MARTINEZ, the Defendants, Case No. 1:18-cv-24532-MGC (S.D. Fla., Oct., 29, 2018), seeks to recover overtime and minimum wages under the Fair Labor Standards Act. According to the complaint, the Defendants have employed several other similarly situated employees, like Plaintiff, who have not been paid overtime and/or minimum wages for work performed in excess of 40 hours weekly. The Defendants willfully and intentionally refused to pay Plaintiff's overtime wages as required by the FLSA as Defendants knew of the overtime requirements of the FLSA and recklessly failed to investigate whether Defendants' payroll practices were in accordance with the FLSA, the lawsuit says. Unlimited Heights is is in rigging and scaffolding business.[BN] Attorney For Plaintiffs: J.H. Zidell, Esq. J.H. ZIDELL, P.A. 300 71 st Street, Suite 605 Miami Beach, FL 33141 Telephone: (305) 865-6766 Facsimile: (305) 865-7167 E-mail: ZABOGADO@AOL.COM US EDUC DEPARTMENT: Secretary Faces Quero et al. Suit in S.D.N.Y. ----------------------------------------------------------------- A class action lawsuit has been filed against the United States Department of Education. The case is captioned as CHRISTOPHER QUERO, COURTNEY FRANCIS, and KELLIN RODRIGUEZ, individually and on behalf of all others similarly situated, Plaintiff v. ELISABETH DEVOS, in her official capacity as Secretary of the United States Department of Education, Case No. 1:18-cv-09509-GBD (S.D.N.Y., Oct. 17, 2018). The case is assigned to Judge George B. Daniels. The United States Department of Education operates as a government agency which promotes student achievement and preparation for global competitiveness. The Agency establishes policies on federal financial aid for education, prohibits discrimination and ensures equal access to education, and collects data on America's schools and disseminating research. DE is based out of Washington, DC. [BN] The Plaintiffs are represented by: Danielle Feldman Tarantolo, Esq. NEW YORK LEGAL ASSISTANCE GROUP 7 Hanover Square New York, NY 10004 Telephone: (212) 613-5000 Facsimile: (212) 714-7589 E-mail: dtarantolo@nylag.org - and - Jane Greengold Stevens, Esq. NEW YORK LEGAL ASSISTANCE GROUP 7 Hanover Square New York, NY 10004 Telephone: (212) 613-5031 Facsimile: (212) 750-0820 E-mail: jstevens@nylag.org - and - Jessica Grace Ranucci, Esq. NEW YORK LEGAL ASSISTANCE GROUP 7 Hanover Square New York, NY 10004 Telephone: (617) 834-0769 E-mail: jranucci@nylag.org US METALS: Court Denies Filing of 2nd Amended Duarte Suit --------------------------------------------------------- In the case, JUAN DUARTE, et al., Plaintiffs, v. UNITED STATES METALS REFINING COMPANY, et al., Defendants, Civil Action No. 2:17-CV-01624-ES-SCM (D. N.J.), Magistrate Judge Steven C. Mannion of the U.S. District Court for the District of New Jersey denied the Plaintiffs' motion to file a second amended complaint. The class action arises from an environmental contamination dispute where the Juan Duarte, Betsy Duarte, N.D., Leroy Nobles, and Betty Nobles (the "Duarte Plaintiffs") allege that United States Metals, Freeport Mineral Corp. ("FMC"), Freeport Minerals Inc. ("FMI"), and AMAX Realty Development, Inc. released hazardous waste from their smelting operations located in Carteret, New Jersey. The release of hazardous waste included toxic levels of arsenic, copper, and lead, among other contaminants, allegedly contaminating the air in the community surrounding the smelting operation, including the Duarte Plaintiffs' persons and property. Although one or more of the Dsfendants took steps to remediate the contamination under the New Jersey Department of Environmental Protection Supervised Off-site Environmental Investigation and Remediation Program in 2012, the Duarte Plaintiffs allege that the Defendants downplayed the extent of the environmental contamination resulting in insufficient remediation of the environmental contamination. FMI, seeking to show that it played no part in the remediation program, provided an affidavit authored by Mr. Douglas N. Carrault II, Corporate Secretary for FMI. Mr. Carrault asserted that FMI did not direct, manage, or provide technical services for the environmental contamination remediation of the Duarte Plaintiffs' homes. Given Mr. Carrault's assertions, the Duarte Plaintiffs discontinued their class action lawsuit against FMI on Dec. 18, 2017. In May of 2018, the Duarte Plaintiffs received Mr. Joseph Brunner's custodian file. The Duarte Plaintiffs assert that Mr. Brunner's file contained new information regarding FMI's involvement in the remediation. At his deposition on June 6 and June 7, 2018, Mr. Brunner identified himself as the Project Manager for the contamination remediation and testified that he and his superior officers were FMC employees. However, the Duarte Plaintiffs alleged that Mr. Brunner and his superiors were listed or self-identified as FMI employees based on the contents of various social media pages, corporate websites, and businessrelated email addresses with FMI domains. Mr. Brunner's custodian file and his testimony at the June Deposition led the Duarte Plaintiffs to believe that the Carrault affidavit was misleading in that FMI, the parent of United States Metals, FMC, and AMAX, actually directed, managed, and controlled the remediation. The Duarte Plaintiffs subsequently asked for, and the Court granted, leave to move to amend. On July 10, 2018, the Duarte Plaintiffs filed their motion to amend seeking to rejoin FMI as a Defendant to the class action. United States Metals, FMC, and AMAX filed their opposition on July 24, 2018, and the Duarte Plaintiffs filed their reply on July 31, 2018. United States Metals, FMC, and AMAX argued in their reply that Mr. Brunner's and his superior's FMI email addresses were corporate branding and the Duarte Plaintiffs had access to their social media pages for months. Further, they argue that Mr. Brunner's emails, produced in November 2017, had the same email address information as his business card, and the Duarte Plaintiffs could have discovered the alleged misinformation earlier with proper diligence. They contend that preparation for additional depositions and theories of liability is prejudicial. Magistrate Judge Mannion finds that the Duarte Plaintiffs have not demonstrated that the FMC employee's Linkedln pages and employee biographies on FMI's website were not available at the start of litigation. Additionally, they have not shown that Mr. Brunner's FMI email address listed on his business card was newly discovered at the June Deposition or when they received his custodian file. The Duarte Plaintiffs did not exercise the necessary diligence in reviewing information readily available at the start of litigation, including information available on the internet or already in their possession. Thus, the Duarte Plaintiffs have provided insufficient justification for seeking leave to amend and have not met the Rule 16 "good cause" standard. In addition, the Magistrate finds that the Duarte Plaintiffs would not meet the Rule 15 standard because their claims are futile. T he Duarte Plaintiffs stated in their Motion to Amend that they received Mr. Brunner's custodian file in May 2018. However, nowhere in their Motion to Amend did the Duarte Plaintiffs identify what documentation within Mr. Brunner's custodian file was new and led them to suspect that the Carrault affidavit was misleading. The Duarte Plaintiffs also point to newly discovered LinkedIn pages and website biographies with FMC employees identifying themselves as FMI employees. First, the Duarte Plaintiffs do not show that the LinkedIn pages were created after the start of litigation. Second, they do not show that the FMI website or the website biographies were unavailable to them at the start of litigation. Third, the Duarte Plaintiffs do not identify the new documents in Mr. Brunner's custodian file. The Magistrate holds that their assertions are naked assertions devoid of further factual enhancement, and are insufficient to satisfy the 12(b)(6) standard. The Duarte Plaintiffs' assertions do not allow the Court to infer that FMI controls United States Metals, FMC, and AMAX and is, therefore, responsible for the contamination remediation. For the forgoing reasons, Magistrate Judge Mannion denied the Duarte Plaintiffs' motion to file an amended complaint. A full-text copy of the Court's Oct. 16, 2018 Opinion and Order is available at https://is.gd/JmnFJr from Leagle.com. JUAN DUARTE, BETSY DUARTE, N.D., infant, by Parents and Natural Guardians Juan Duarte, and Betsy Duarte, LEROY NOBLES & BETTY NOBLES, on behalf of themselves and all others similarly situated., Plaintiffs, represented by STEVEN J. GERMAN -- SGerman@germanrubenstein.com -- GERMAN RUBENSTEIN, BORIS SHMARUK, VLASAC & SHMARUK L.L.C. & JOHN M. VLASAC, JR., VLASAC & SHMARUK, LLC. UNITED STATES METALS REFINING COMPANY, FREEPORT MCMORAN COPPER & GOLD, INC., AMAX REALTY DEVELOPMENT, INC. & FREEPORT MINERALS CORPORATION, Defendants, represented by DAVID R. KOTT -- dkott@mccarter.com -- MCCARTER & ENGLISH, LLP. VALLEY BROOK, OK: Attorneys File Class Action Lawsuit ----------------------------------------------------- Steve Shaw, writing for News 9, reports that an Oklahoma County Judge will determine whether a class action lawsuit against the town of Valley Brook can continue. Attorneys Marvel Lewis, Esq. and Jeff Box, Esq. filed the lawsuit on September 10. The attorneys claim that dozens, maybe even hundreds of motorists, have been pulled over on a stretch of roadway that is technically not in Valley Brook's jurisdiction. But instead is considered to be in Oklahoma City. Lewis represents a man who was arrested for a DUI there in January. Last month, an Oklahoma County Judge tossed out that conviction, because Lewis and Box argued that Valley Brook lacked jurisdiction. October 24 night, both attorneys argued in front of Valley Brook's Municipal Court Judge that a careless driving charge against their client should also be thrown out. "Since the DUI has been dismissed in Oklahoma County, we believe that this case here should be dismissed," Lewis said. Municipal Court Judge Steve Haynes though rejected Lewis' argument. Lewis and Box say they will just appeal Haynes' ruling to the district court as well. [GN] VERMYCK LLC: Gomes et al. Sue over Rental Tax Incentives -------------------------------------------------------- JACOBUS GOMES, and KATHRYN GOMES, individually and on behalf of all others similarly situated, Plaintiff v. VERMYCK LLC, Defendant, Case No. 713219/2018 (N.Y. Sup., Queens Cty., Aug. 27, 2018) alleges violation of the Rent Stabilization Law and the Rent Stabilization Code. The Plaintiffs allege in the complaint that the Defendant received certain tax abatements and exemptions pursuant to the J-51 tax benefits program. The Defendant is required by the Rent Stabilization Law and the Rent Stabilization Code to provide the Plaintiff with rent-stabilized leases as a condition of receiving tax benefits. However, the Plaintiffs did not receive a rent-stabilized lease at the time they moved into their apartment at the Building, and have been provided with non-rent stabilized lease renewals by the Defendant. Vermyck LLC is a company engaged in real estate property management. [BN] The Plaintiff is represented by: Lucas A. Ferrara, Esq. Jarred I. Kassenoff, Esq. Roger A. Sachar Jr., NEWMAN FERRARA LLP 1250 Broadway, 27th Floor New York, NY 10001 Telephone: (212) 619-5400 E-mail: lferrara@nfllp.com jkasseno@nfllp.com rsachar@nfllp.com WINS FINANCE: Opposition to Desta Class Cert. Bid Due Dec. 1 ------------------------------------------------------------ Wins Finance Holdings Inc. said in its Form 20-F report filed with the U.S. Securities and Exchange Commission on June 30, 2018, for the fiscal year ended September 1, 2018, that the company's opposition to the motion for class certification in the case entitled, Desta v. Wins Finance Holdings, Inc., et al., is due on December 14, 2018. On April 20, 2017, Michel Desta filed a securities class action complaint in the District Court for the Central District of California seeking monetary damages against the company, Jianming Hao, Renhui Mu, Peiling (Amy) He, and Junfeng Zhao (entitled Desta v. Wins Finance Holdings, Inc., et al.; C.D. Cal. Case No. 2:17-cv-02983) (hereafter, the "California Action"). On June 26, 2017, the Court issued an Order appointing lead plaintiffs and lead counsel, and on August 25, 2017 lead plaintiffs filed an Amended Class Action Complaint. The Amended Complaint (which did not name Peiling (Amy) He as a defendant), alleges a claim against the company for securities fraud purportedly arising from alleged misrepresentations concerning Wins' principal executive offices (which alleged misrepresentations resulted in Wins being added to, and then removed from, the Russell 2000 index). On October 24, 2017, the company moved to dismiss the Amended Complaint for failure to state a claim as against uits. On March 1, 2018, the District Court for the Central District of California issued an Order denying the Company's motion to dismiss. Thus, the civil action has proceeded to the fact gathering "discovery" stage in respect to the Company. On August 31, 2018, defendants Renhui Mu and Junfeng Zhao moved to dismiss Plaintiffs' Amended Complaint in the California Action for failure to state a claim as against them. That motion is scheduled for hearing on November 5, 2018. Separately, on September 17, 2018, lead plaintiffs in the California Action filed a motion seeking class certification. The Company's opposition to that motion is currently due on December 14, 2018. On October 9, 2018, the Court entered an Order in the California Action dismissing the action as against Jianming Hao, without prejudice, for lead plaintiffs' failure to timely serve him with the Summons and Amended Complaint. Wins Finance said, "The Amended Complaint does not specifically allege the damages purportedly suffered by the class, and we are not yet able to provide a reliable estimate of any such damage claim. We believe that the claims from this proceeding are without merit and we are vigorously defending this proceeding. Wins Finance Holdings Inc., through its subsidiaries, provides financing solutions for small and medium enterprises in the People's Republic of China. It provides financial guarantee and leasing services, as well as financial advisory, consultancy, and agency services in Jinzhong City, Shanxi Province, and Beijing. The company is headquartered in New York, New York. Wins Finance Holdings Inc. is a subsidiary of Freeman FinTech Corporation Limited. YMCA: Class Action Over Evictions Thwarted by Missing Agreement --------------------------------------------------------------- Scott Holland, writing for Cook County Record, reports that a man who participated in a Chicago city program for the homeless failed to prove he was a YMCA tenant under Chicago's landlord ordinance, losing the opportunity to continue a class action suit against the Y over evictions, a state appeals panel has ruled. Sopuruchi Okeke Ewo filed a class action complaint in 2015 against the YMCA of Metropolitan Chicago, which he said didn't renew a lease he arranged through the Chicago Department of Family and Support Services, then wrongfully evicted him. The YMCA moved to dismiss, arguing that because the city paid Ewo's rent as part of a grant program, he doesn't have the same legal protections as an individual tenant, as defined in the Chicago Residential Landlord and Tenant Ordinance. Cook County Circuit Court Judge David Atkins had granted the dismissal. A three-justice panel of the Illinois First District Appellate Court ruled on Ewo's appeal of that ruling in an order issued Oct. 18. Justice Jesse Reyes wrote the decision; Justices Bertina Lampkin and Mary Rochford concurred. The order was issued under Supreme Court Rule 23, which restricts its use as precedent, except under very limited circumstances permitted by the Supreme Court rule. In arguing against the dismissal, Ewo noted he had a written program agreement with the city and an oral lease with the YMCA. But the YMCA said its only contract is with the city, which gives the YMCA a block grant to set aside 11 rooms for program participants, each of whom have six months to live in the space. The city determines each participant's exit date and communicates it directly through a case manager, Reyes noted in the decision.[GN] ZOAN MANAGEMENT: Or. High Court Remands Arbitration Matters ----------------------------------------------------------- The Supreme Court of Oregon issued an Opinion reversing the Court of Appeals' judgment dismissing the Plaintiffs' appeal of the Trial Court's Order granting Defendant's Motion to Compel Arbitration in the case captioned Jeff GIST, individually and on behalf of all similarly situated, Petitioner on Review, v. ZOAN MANAGEMENT, INC.; Senvoy, LLC; and Driver Resources, LLC, a domestic limited liability company, Respondents on Review. Nos. (CC 131115916) (CA A159509) (SC S064925). (Or.). This case requires the state Supreme Court to determine whether the Court of Appeals correctly dismissed plaintiff's appeal of a judgment dismissing his complaint with prejudice on the grounds that the appeal was barred by this court's decision in Steenson v. Robinson, 236 Or. 414, 385 P.2d 738 (1963). The Plaintiff worked as a driver for defendant Driver Resources, LLC. The other two defendants are related companies. The Plaintiff filed a class-action complaint against defendants, on behalf of himself and other similarly situated drivers. At issue was defendants' compliance with Oregon's wage and hour laws, as set out in ORS chapters 652 and 653. The Defendants filed a petition to compel arbitration, on the basis of an agreement that the plaintiff had signed with one defendant. Plaintiff responded to the petition by arguing that the agreement was unconscionable, and therefore that arbitration should not be compelled. The trial court granted defendants' petition, requiring plaintiff to proceed to arbitration. Plaintiff filed an appeal from that judgment in the Court of Appeals. Defendants moved to dismiss the appeal on two grounds. First, defendants argued that this court's decision in Steenson prevented appeal of a voluntary dismissal. Second, defendants argued that plaintiff's attempt to appeal an order granting a motion to compel arbitration is barred by ORS 36.730, which governs certain appeals in cases involving arbitration. They contended that that statute creates an exception to ORS 19.205(1), which generally permits appeal of a general judgment. The Appellate Commissioner rejected defendants' second argument, determining that ORS 19.205(1), in combination with ORS 19.245, provided a statutory basis allowing plaintiff to appeal the general judgment of dismissal. However, the Appellate Commissioner held that Steenson prevented plaintiff from taking an appeal and entered an order dismissing the appeal on that ground. Plaintiff petitioned for reconsideration of the Appellate Commissioner's decision by the Court of Appeals. That petition was denied. Plaintiff then filed a petition for review of the dismissal of the appeal in this court, which the Court allowed. As they did before the Court of Appeals, defendants argue that two separate legal rules bar plaintiff's appeal in this case. First, defendants argue that this court's decision in Steenson prevents plaintiff from appealing. Steenson announced a common law rule that a party may not appeal from a judgment which he voluntarily requested. Second, defendants argue that a provision of the Oregon Uniform Arbitration Act, ORS 36.730, bars plaintiff's appeal. The flaw in plaintiff's argument is that there is no material difference between the text of the statutes that plaintiff relies upon and the text of the equivalent statutes when Steenson was decided. Former 19.020 (1963), the analogous provision to ORS 19.245, stated that any party to a judgment or decree, other than a judgment or decree given by confession or for want of an answer, may appeal therefrom. And former ORS 19.010(1) (1963), the predecessor of ORS 19.205(1), provided that a judgment or decree may be reviewed on appeal as prescribed in this chapter. Plaintiff's second argument is that, even if Steenson does apply generally, it has an exception that is applicable to this case. In Steenson, this court suggested that the rule against appeal of a voluntary nonsuit might not apply if the plaintiff takes a nonsuit because of a ruling which precludes recovery. Having examined the Court cases, the Court turn to the task of clarifying the exception to the Steenson rule. That exception was initially articulated, very briefly and in a hypothetical statement, as one that would apply if the plaintiff takes a nonsuit because of a ruling which precludes recovery. That statement, however, was made in a case in which res judicata did notbar the plaintiff from refiling his claim and in the context of statutes that did not provide for voluntary dismissals with prejudice, or the equivalent, in actions at law. Read literally, as defendants propose, Steenson's articulation of the exception would suggest that we should examine the record to discern whether, as a factual matter, plaintiff still had some possibility of recovery on the claims that he moved to dismiss. But that is not how our subsequent cases have applied the exception, and that literal reading cannot be squared with the reasoning in Taylor or the result in Sheets. Nor is defendants' limited view of the exception necessary to advance the purpose of the Steenson rule. That rule was imposed only to prevent a plaintiff from both obtaining appellate review of a preliminary issue and retaining the ability to refile the same claim, should the plaintiff lose on appeal. A dismissal of all claims with prejudice fully prevents plaintiffs from employing that strategy. For those reasons, the Court holds that Steenson does not bar appeal when there is a judgment on all claims and any voluntarily dismissed claims were dismissed with prejudice. Applying that rule to these facts is straightforward. This case involves a dismissal with prejudice of all of plaintiff's claims. Plaintiff cannot refile those claims after this appeal. To the contrary, having voluntarily foregone the possibility of recovery through arbitration, plaintiff's action is at an end if he does not prevail on appeal. He is in a similar position to the plaintiffs in Taylor,who were willing to accept nonsuit of another, related, claim in order to obtain an appeal. In this case, had plaintiff not dismissed his claims with prejudice, he could have pursued them in arbitration. Plaintiff gave that up. Plaintiff's acceptance of that cost his willingness to forego litigation, Taylor, 279 Or at 144, distinguishes this case from an interlocutory appeal. For that reason, any dispute over whether plaintiff correctly judged that he would be unable to prevail on his claims through arbitration, or would actually have been unable to afford arbitration, is irrelevant. Plaintiff's appeal falls within the exception because, as in Taylor and Sheets, plaintiff's only opportunity to obtain relief is on appeal; plaintiff dismissed his claims with prejudice and cannot refile them if he is unsuccessful on appeal. The Court turns to defendants' second argument, that ORS 36.730 creates an exception to the general rule of ORS 19.205(1) that a party can appeal a general judgment and prohibits plaintiff from pursuing his appeal. ORS 36.730(1) allows the interlocutory appeal of orders denying a petition to compel arbitration or granting a petition to stay arbitration. But ORS 36.730(1) contains no provision permitting an interlocutory appeal of an order granting a petition to compel arbitration. Defendants argue that because of that omission, plaintiff's appeal must be dismissed. The Court disagrees. As the Court have discussed above, this case does not involve an interlocutory appeal. Instead, the trial court entered a judgment dismissing plaintiff's action with prejudice and plaintiff appealed that judgment. This appeal is therefore from a general judgment and is statutorily authorized by ORS 19.205(1) and ORS 19.245(1). Nothing in ORS 36.730(1) prevents plaintiff from appealing the final, general judgment in his case. The Court allowed review to consider only whether plaintiff's appeal was correctly dismissed, and the Court have concluded that it was not. The learned Appellate Commissioner pointed out in his order, however, that certain of defendants' arguments may more appropriately be directed to what issues the Court of Appeals may properly review on appeal rather than the appealability of the judgment. Those arguments, as well as the merits of plaintiff's assignments of error, are properly considered in the first instance by the Court of Appeals. The order of the Court of Appeals is reversed, and the case is remanded to the Court of Appeals for further proceedings. A full-text copy of the state Supreme Court's October 25, 2018 Opinion is available at https://tinyurl.com/ydegnaxf from Leagle.com. Lisa T. Hunt -- lthunt@lthuntlaw.com -- Law Office of Lisa T. Hunt, LLC, Eugene, argued the cause and filed the briefs for the petitioner on review. Charles J. Paternoster -- cpaternoster@pfglaw.com -- Parson Farnell & Grein, LLP, Portland, argued the cause and filed the brief for the respondents on review. [*] ALRC Chief Takes Aim at "Trafficking" of Class Actions ---------------------------------------------------------- Michael Pelly, writing for AFR News, reports that Australian Law Reform Commission president Sarah Derrington sprang a couple of surprises this week at a conference put on by a group of litigation funders. With the commission's class actions report in its final stages, Derrington -- a non-sitting judge of the Federal Court -- took aim at those who sell shares in the proceeds of any settlement. She cited the example of Burford Capital which recently sold off 25 per cent of its funding of a claim in the USA against the Argentinian government for nationalisation of an oil company for $106 million. Its original investment was $18 million. Burford, which is backing one of the five claims against AMP, has been talking up the development of a secondary market for litigation and arbitration risk. Derrington isn't so keen. Litigation trafficking The ALRC chief said Burford-style deals "might just meet the description of trafficking in litigation . . . the unjustified buying and selling of rights to litigation where the purchaser has no proper reason to be concerned with the litigation". In Australia, she said, such deals "won't render the proceedings liable to be dismissed or stayed but at the very least the securitisation agreement itself is likely to be unenforceable". Derrington was speaking at a half-day conference of the nascent Association of Litigation Funders Australia in Sydney on Monday. She will back up at another ALFA event in Melbourne. She noted since the High Court's 2006 decision in Fostif, it has been accepted that arrangements between funders and litigants are enforceable and not contrary to public policy "even when they yielded significant profit". "What has not been settled unequivocally is the limit of the consideration of public policy and illegality in the context of the development of securitisation in already funded litigation," Derrington said. Herbert Smith Freehills partner Jason Betts liked what he heard. Conflicts of interest "A secondary market trading in the outcome of a class action must surely cross the red line of conflicts of interest; and even in the post-Fostif 'free market' for class action funders, would be a practice so patently entrepreneurial that the integrity of our entire class action regime would be threatened," Betts said. KWM partner Justin McDonnell, who was on a panel with Betts for one session, said there was a legitimate concern that "funders, especially the overseas ones, are simply going to use this as another market to make money". "Such a step does really go to trafficking in litigation and that would offend public policy, so the judge's point is that Burford's underlying agreement to fund the action would be valid but not the on-sale of its share." ALFA chairman and class actions veteran John Walker was more interested in Derrington's suggestion the ALRC might propose a look at whether consideration should be given to terminating the rights of shareholders to sue by way of class action under the continuous disclosure provisions of the Corporations Act. "This seems an extraordinarily broad ambit to be proposing for an inquiry that is outside the ALRC's terms of reference, particularly in circumstances where no submissions calling for this have been made," Walker said. "It would mean ASX shareholders would be the only purchasers of securities without a right to enforce market protection regulations." Derrington said funders had backed all shareholder class actions since 2013 and 34 per cent of consumer protection and mass tort claims. The average fee is 28.5 per cent on settlements -- no cases have yet gone to trial in Australia – that have ranged from $6.75 million to $215 million. Her sign-off lines suggest the final report, which is due on December 21 but expected earlier, will have some bite. "The legitimate use of the court's processes . . . should not be undermined by proceedings that disproportionately benefit the funder and solicitor rather than the litigants. "Both the public function of class actions and the private interests of the litigants must take priority over the interests of those whose role it is to provide the services necessary to participate in this system." Indigenous law firm links with Norton Rose Norton Rose Fulbright disclosed that it was forming a majority Indigenous-owned commercial law firm -- known as Jaramer Legal -- in a joint venture with Mailman Law principals Bevan Mailman and Brian Bero. Bero said his firm wanted to "get involved in the larger infrastructure and commercial work out there, but we don't have the capacity". He cited the Develop the North initiative and the Indigenous economic strategy as two opportunities for Jaramer to take "a meaningful part in the development of wealth for our nation". Mailman said 79 per cent of the north was under Indigenous title: "It makes sense if we can help them better develop and steward their land assets." Norton Rose chief Wayne Spanner said he hoped it would help develop commercial law careers for Indigenous lawyers, most of which have gravitated to family law and criminal law. [*] IMF Bentham to Fund Property Owners' Cladding Class Action -------------------------------------------------------------- Insurancenews.com.au reports that litigation funder IMF Bentham and William Roberts Lawyers will launch a class action for property owners who have been forced to pay for the removal of combustible polyethylene-core cladding from their buildings. The action will represent owners of residential, commercial and other non-residential buildings. Another class action is being put together by law firm Adley Burstyner and building inspector Roscon Property Services, targeting construction companies that have used combustible cladding in residential buildings. Losses may include premiums on house and contents cover, which have increased dramatically for affected or potentially affected buildings. State governments are cracking down on the use of combustible cladding. The Victorian Government has shifted the cost of removing it to residents. More than 800 companies and individuals have been contacted under a state cladding audit. [GN] [*] JND Bags Settlement Service Contracts with Federal Agencies --------------------------------------------------------------- JND Legal Administration, a legal management and administration company serving law firms, corporations and government entities, on Nov. 14 disclosed that its government services business line has been awarded two independent contracts from both the Federal Trade Commission (FTC) Office of Claims and Refunds and the U.S. Securities Exchange Commission (SEC) Office of Distributions Division of Enforcement. "It is a very proud moment for JND to be entrusted to administer the enforcement actions of both the SEC and FTC," comments Neil Zola, executive co-chairman and co-founder of JND Legal Administration. "Through these contracts, JND will deliver timely and accurate settlement administration services for both federal entities, allowing them to concentrate on their missions of protecting consumers and investors." JND's government services business line is run by Senior Vice President Charles Lawson who was instrumental in securing the contracts. Under these contracts, JND will provide all personnel, equipment, tools, supervision, and other services necessary to ensure effective notice, claims administration, and funds distribution. "The Division of Enforcement's Office of Distributions ('OD') is responsible for administering and coordinating the SEC's distribution program," read the SEC statement of requirements for submission. "OD's objective is to return funds to eligible harmed investors as expeditiously and efficiently as possible given the circumstances of the particular matter." "Distributing these funds is a major undertaking," read the FTC statement of requirements for evaluation. "The FTC relies on private sector support for a portion of the administration of the claims processing and fund distribution." Federal agencies establish long-term contracts with settlement administration firms to develop and implement the distribution plan, including: developing a timeline for distribution; determining economic harm or loss and retaining an expert if needed; locating and identifying harmed investors; determining whether claimants are eligible to receive payment; communicating with potentially eligible claimants; and providing reporting and recordkeeping services. About JND Legal Administration JND Legal Administration -- http://www.jndla.com-- is a legal management and administration company led by industry veterans who are passionate about providing superior service to clients. Armed with decades of expertise and a powerful set of tools, JND has deep experience expertly navigating the intricacies of multiple, intersecting service lines including class action settlements, corporate restructuring, eDiscovery, mass tort claims and government services. JND is trusted by law firms, government agencies and Fortune 500 companies across the nation. The company is backed by Stone Point Capital and has offices in California, Colorado, Minnesota, New York, Washington and Washington, D.C. [*] Langlois Lawyer Discusses Steps to Minimize Privacy Class Suit ------------------------------------------------------------------ Caroline Deschenes, Esq. -- caroline.deschenes@langlois.ca -- of Langlois Lawyers LLP, in an article for Canadian Lawyer, reports that over the past decade, the number of privacy class actions has increased dramatically. This is because privacy breaches often affect a vast number of individuals who have suffered only a modicum of damages. With the coming into force of new obligatory notification regimes, such as that under the Personal Information Protection and Electronic Documents Act as of Nov. 1, this tendency is not going to subside any time soon. A class action can entail substantial costs, including defence fees and negative publicity, not to mention the cost of settlement or court-ordered compensation. So, what can organizations do to minimize these risks? The way an organization reacts to a privacy breach may be determinative of its consequences and the chances of a class action ensuing. A well-thought-out incident response plan is an indispensable tool in such circumstances. An IRP should include the following five steps. Incident identification Under the direction of the incident response team, the first step is to identify, as far as possible, the kind of information involved, the nature of the incident, whether the incident is ongoing or occurred in the past and the cause of the incident. This preliminary assessment will indicate the nature of the subsequent actions necessary to minimize the negative effects. Initial response and containment Measures should be taken immediately to contain the effects of the incident and prevent the loss of additional information or any other negative impact on the organization or third parties. The nature of these measures will depend on the type of breach that occurred. For example, the reaction to a cyberattack using ransomware will not be the same as that of an email erroneously sent by a distracted employee. Investigation Once the incident has been identified and contained, a more in-depth investigation is called for, in order to determine the type of information involved, as well as: -- the persons affected by the incident; -- whether the information has been lost, stolen, etc.; -- whether the information can be recovered or not; -- who has accessed the information (in order to be able to take steps to mitigate the risk of the information being more widely distributed; -- the cause of the incident (in order to determine if security measures can be implemented immediately). Notification Certain legislation, such as Alberta's Personal Information Protection Act, and as of Nov. 1, PIPEDA, provides for mandatory notification of privacy breaches to the privacy commissioner and/or the individuals concerned. There could also be contractual obligations to notify in the event of a breach. But even if not mandated by a statute or contract, notification may be desirable in order to allow affected individuals to mitigate their damages; for example, by taking steps to prevent identity theft. Under certain circumstances, affected organizations should offer assistance to individuals whose information has been compromised (such as free credit monitoring). If a class action ensues, the organization's reaction to the incident will be closely scrutinized, and if appropriate measures have been taken, this will allow it to significantly reduce its exposure. Communications A communications plan should be drawn up in order to limit the negative effects of the incident, particularly on the organization's reputation. Any communication should be carefully thought out, in order to ensure that (1) appropriate language is used, so as to minimize risks in the event of litigation; (2) sufficient information about the incident is provided; and (3) privileged information is not disclosed. Finally, the execution of all steps of the IRP should be recorded -- while ensuring that privilege and evidence are preserved -- as such information could prove to be useful in defending against a class action. While organizations have little control over developments in the law, they can compensate by adopting measures aimed at obviating the risk of privacy breaches and limiting the damages. [*] Opting Out of Class Action Makes More Sense in Some Situations ------------------------------------------------------------------ Marg. Bruineman, writing for Law Times, reports that the opportunity to opt out of a class action is offered in all Ontario class-action proceedings, but lawyers say there are some fact situations in which pursuing individual claims makes more sense than being part of a class. And while the law around certification has generally been tested and clearly developed, the areas around those who opt out because they don't want to be part of the class, along with settlement approval and competing class actions, are continuing to be defined, says Samaneh Hosseini -- shosseini@stikeman.com -- a partner in Stikeman Elliott LLP's litigation and dispute resolution group in Toronto. In this continuing evolution, there are cases in which a lawyer representing an individual seeks to opt out and not be part of the class in a class action, deciding instead to launch their own action, she says. The concern, she says, is the risk too many opting out could have on the actual class action. If there are several deciding not to be part of the class, she says, the defendant might feel the settlement will not adequately resolve their exposure and refuse to come to a settlement agreement. "That raises challenges because the settlement will commonly have an opt-out threshold," she says. The threshold means that if a certain percentage of the class opts out, the settlement may no longer be valid, which can "potentially interfere with the settlement," she adds. The ability to opt out is only available once, even if there are several cases being advanced on the same issue, says Linda Visser -- linda.visser@siskinds.com -- a plaintiff class action lawyer and a partner at Siskinds LLP in London, Ont. In price-fixing cases -- her particular area of concentration -- there is often more than one class action going on at once if the issue is relevant in several jurisdictions. And if a potential member of a class opts out, that person is opting out of all the class actions that are launched for that particular product. She points out that the window to opt out is only offered at a prescribed period during the process for a limited amount of time. "Typically, I would say, you would only really want to opt out if you want to pursue the litigation on your own or if you're reaching your own separate resolution with them," says Ms. Visser. Loretta Merritt -- lmerritt@torkinmanes.com -- of Torkin Manes LLP says that distinction around injuries is an important one and can make class actions inappropriate for some circumstances in which there was harm. She says the process is flawed and, therefore, not always adequate for those involving sexual assault, particularly historical institutional abuse. There have been several class actions certified for claims of historical sexual abuse in institutions, which Merritt says she finds troubling. She says the time restraints in class actions can deny access to justice to many of those who have been harmed and the damage awards end up being much smaller than those who pursue individual claims. Merritt says certifying institutional abuse cases as class actions started with Rumley v. British Columbia in 2001, which landed before the Supreme Court of Canada. Rumley involved abuse and systemic negligence at a residential school for deaf and blind children run by British Columbia. A class action was certified after a government-established compensation scheme was deemed inadequate, she says, and class members were ultimately granted a maximum of $125,000 each. Several institutional abuse cases have since been certified and settled, including three involving the Huronia Regional Centre, the Rideau Regional Centre and the Southwestern Regional Centre, which were residential facilities in Ontario for those with developmental disabilities. The maximum payout was $35,000 per class member. She says there's a gross disparity in damage awards between what members of a class are receiving in some settlements and the limited number of people coming forward versus what they can get if they pursue litigation individually. "I can think of a reason why someone may want to opt out. They might want $100,000 or $200,000 or $300,000 or $400,000 in damages, as opposed to $3,711," she says, referring to what some class members received in the Ontario residential facilities cases. Merritt is also concerned that the limited timeline potential class members have to opt out of a class action conflicts with legislation that removes limitation periods for historical sexual assaults. She says if people don't come forward on the timetable set by the lawyers and the court in class actions, they are deemed to be included in the class and are prohibited from filing a claim in the future and their rights to pursue a claim are extinguished. "A small fraction of the fund is being paid out because a small fraction of people are coming forward to collect their money and settlements paid are shockingly low . . . when you look at individual actions," she says. [*] US Chamber of Commerce Urges Reform for Securities Law ---------------------------------------------------------- Hazel Bradford, writing for Pio Online, reports that the U.S. Chamber of Commerce in a new paper is calling on Congress to reform securities class-action law, its first legislative foray on the issue since the Private Securities Litigation Reform Act was passed in 1995. The PSLRA was passed in response to complaints from the Chamber and others after a spike in filings in the 1990s that focused on technology companies. Today, the new report said, "the securities class-action system suffers from abuses eerily similar to those of the 1990s," when companies tended to settle rather than defend claims. While Congress created a lead-plaintiff process to give institutional investors more of a role in these types of lawsuits, "many institutional investors have remained on the sidelines," while plaintiffs' lawyers and "professional plaintiffs" have stepped up their involvement, said the report, "A Rising Threat: The New Class-Action Racket that Harms Investors and the Economy." In 2018, more than 8% of all public companies -- one out of 12 -- will be sued in a securities class action, according to the report. While the previous trend was stock-drop lawsuits, the report states "the trigger today is merger and acquisition deals valued over $100 million," with 85% of those deals resulting in a lawsuit. The bulk of those lawsuits, 87%, now wind up in federal courts, following a Delaware state court ruling in 2016 that limited settlements in such cases, the report said. Another trend noted in the report is "event-driven" lawsuits triggered by consumer lawsuits on product liability or in data breaches, followed by investor lawsuits alleging companies should have known the potential impact on share values. Annual filings of securities class-action lawsuits averaged 190 per year from 2008 through 2016. In 2017, filings increased 122% to 412, and are expected to stay at that level in 2018, the report said. "Securities class-action lawsuits are spiraling out of control: Plaintiffs' lawyers are filing more meritless lawsuits than ever before," Lisa A. Rickard, president of the U.S. Chamber Institute for Legal Reform, said in a statement. "This litigation racket inflicts serious harm on investors, companies and capital markets. Congress should enact reforms that deter the filing of meritless claims and ensure that securities cases actually benefit genuinely injured investors rather than the lawyers who bring the lawsuits." Asbestos Litigation ASBESTOS UPDATE: 3M Accrues $29MM Aearo-Related Costs at Sept. 30 ----------------------------------------------------------------- 3M Company, through its Aearo Technologies subsidiary, had accruals of US$29 million as of September 30, 2018, for product liabilities and defense costs related to current and future Aearo-related asbestos and silica-related claims, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2018. The Company states, "On April 1, 2008, a subsidiary of the Company purchased the stock of Aearo Holding Corp., the parent of Aearo Technologies ("Aearo"). Aearo manufactured and sold various products, including personal protection equipment, such as eye, ear, head, face, fall and certain respiratory protection products. "As of September 30, 2018, Aearo and/or other companies that previously owned and operated Aearo's respirator business (American Optical Corporation, Warner-Lambert LLC, AO Corp. and Cabot Corporation ("Cabot")) are named defendants, with multiple co-defendants, including the Company, in numerous lawsuits in various courts in which plaintiffs allege use of mask and respirator products and seek damages from Aearo and other defendants for alleged personal injury from workplace exposures to asbestos, silica-related, or other occupational dusts found in products manufactured by other defendants or generally in the workplace. "As of September 30, 2018, the Company, through its Aearo subsidiary, had accruals of US$29 million for product liabilities and defense costs related to current and future Aearo-related asbestos and silica-related claims. This accrual represents the Company's best estimate of Aearo's probable loss and reflects an estimation period for future claims that may be filed against Aearo approaching the year 2050. Responsibility for legal costs, as well as for settlements and judgments, is currently shared in an informal arrangement among Aearo, Cabot, American Optical Corporation and a subsidiary of Warner Lambert and their respective insurers (the "Payor Group"). Liability is allocated among the parties based on the number of years each company sold respiratory products under the "AO Safety" brand and/or owned the AO Safety Division of American Optical Corporation and the alleged years of exposure of the individual plaintiff. Aearo's share of the contingent liability is further limited by an agreement entered into between Aearo and Cabot on July 11, 1995. This agreement provides that, so long as Aearo pays to Cabot a quarterly fee of US$100,000, Cabot will retain responsibility and liability for, and indemnify Aearo against, any product liability claims involving exposure to asbestos, silica, or silica products for respirators sold prior to July 11, 1995. Because of the difficulty in determining how long a particular respirator remains in the stream of commerce after being sold, Aearo and Cabot have applied the agreement to claims arising out of the alleged use of respirators involving exposure to asbestos, silica or silica products prior to January 1, 1997. With these arrangements in place, Aearo's potential liability is limited to exposures alleged to have arisen from the use of respirators involving exposure to asbestos, silica, or silica products on or after January 1, 1997. To date, Aearo has elected to pay the quarterly fee. Aearo could potentially be exposed to additional claims for some part of the pre-July 11, 1995 period covered by its agreement with Cabot if Aearo elects to discontinue its participation in this arrangement, or if Cabot is no longer able to meet its obligations in these matters." A full-text copy of the Form 10-Q is available at https://is.gd/Kwy850 ASBESTOS UPDATE: 3M Co. Accrues $600MM for Respirator Lawsuits -------------------------------------------------------------- 3M Company had an accrual of US$600 million as of September 30, 2018, for liabilities associated with respirator mask and asbestos cases (excluding those related to Aearo Technologies), according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2018. 3M Co. states, "The Company regularly conducts a comprehensive legal review of its respirator mask/asbestos liabilities. The Company reviews recent and historical claims data, including without limitation, (i) the number of pending claims filed against the Company, (ii) the nature and mix of those claims (i.e., the proportion of claims asserting usage of the Company's mask or respirator products and alleging exposure to each of asbestos, silica, coal or other occupational dusts, and claims pleading use of asbestos-containing products allegedly manufactured by the Company), (iii) the costs to defend and resolve pending claims, and (iv) trends in filing rates and in costs to defend and resolve claims, (collectively, the "Claims Data"). As part of its comprehensive legal review, the Company regularly provides the Claims Data to a third party with expertise in determining the impact of Claims Data on future filing trends and costs. The third party assists the Company in estimating the costs to defend and resolve pending and future claims. The Company uses these estimates to develop its best estimate of probable liability. "Developments may occur that could affect the Company's estimate of its liabilities. These developments include, but are not limited to, significant changes in (i) the key assumptions underlying the Company's accrual, including, the number of future claims, the nature and mix of those claims, the average cost of defending and resolving claims, and in maintaining trial readiness (ii) trial and appellate outcomes, (iii) the law and procedure applicable to these claims, and (iv) the financial viability of other co-defendants and insurers. "As a result of the Company's review of its respirator mask/asbestos liabilities and as a result of the cost of resolving claims of persons who claim more serious injuries, including mesothelioma and other malignancies, the Company increased its accruals in the first nine months of 2018 for respirator mask/asbestos liabilities by US$56 million. In the first nine months of 2018, the Company made payments for legal fees and settlements of US$64 million related to the respirator mask/asbestos litigation. "As of September 30, 2018, the Company had an accrual for respirator mask/asbestos liabilities (excluding Aearo accruals) of US$600 million. This accrual represents the Company's best estimate of probable loss and reflects an estimation period for future claims that may be filed against the Company approaching the year 2050. The Company cannot estimate the amount or upper end of the range of amounts by which the liability may exceed the accrual the Company has established because of the (i) inherent difficulty in projecting the number of claims that have not yet been asserted or the time period in which future claims may be asserted, (ii) the complaints nearly always assert claims against multiple defendants where the damages alleged are typically not attributed to individual defendants so that a defendant's share of liability may turn on the law of joint and several liability, which can vary by state, (iii) the multiple factors that the Company considers in estimating its liabilities, and (iv) the several possible developments that may occur that could affect the Company's estimate of liabilities. "As of September 30, 2018, the Company's receivable for insurance recoveries related to the respirator mask/asbestos litigation was US$4 million. The Company continues to seek coverage under the policies of certain insolvent and other insurers. Once those claims for coverage are resolved, the Company will have collected substantially all of its remaining insurance coverage for respirator mask/asbestos claims." A full-text copy of the Form 10-Q is available at https://is.gd/Kwy850 ASBESTOS UPDATE: 3M Co. Still Faces 2,255 Claimants at Sept. 30 --------------------------------------------------------------- 3M Company remains a defendant in numerous lawsuits in various courts that purport to represent approximately 2,255 individual claimants as of September 30, 2018, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2018. The Company states, "The vast majority of the lawsuits and claims resolved by and currently pending against the Company allege use of some of the Company's mask and respirator products and seek damages from the Company and other defendants for alleged personal injury from workplace exposures to asbestos, silica, coal mine dust or other occupational dusts found in products manufactured by other defendants or generally in the workplace. A minority of the lawsuits and claims resolved by and currently pending against the Company generally allege personal injury from occupational exposure to asbestos from products previously manufactured by the Company, which are often unspecified, as well as products manufactured by other defendants, or occasionally at Company premises. "The Company's current volume of new and pending matters is substantially lower than it experienced at the peak of filings in 2003. The Company expects that filing of claims by unimpaired claimants in the future will continue to be at much lower levels than in the past. Accordingly, the number of claims alleging more serious injuries, including mesothelioma and other malignancies, will represent a greater percentage of total claims than in the past. The Company has prevailed in thirteen of the fourteen cases taken to trial, including eleven of the twelve cases tried to verdict (such trials occurred in 1999, 2000, 2001, 2003, 2004, 2007, 2015, and the cases tried in 2016, 2017, and 2018), and an appellate reversal in 2005 of the 2001 jury verdict adverse to the Company. The remaining case, tried in 2009, was dismissed by the court at the close of plaintiff's evidence, based on the court's legal finding that the plaintiff had not presented sufficient evidence to support a jury verdict. In August 2016, 3M received a unanimous verdict in its favor from a jury in state court in Kentucky, in 3M's first respirator trial involving coal mine dust. The estate of the plaintiff alleged that the 3M 8710 respirator is defective and caused his death because it did not protect him from harmful coal mine dust. The jury rejected plaintiff's claim and returned a verdict finding no liability against 3M. The verdict is final as the plaintiff did not file an appeal. In September 2017, 3M received a unanimous verdict in its favor from a jury in state court in Kentucky in 3M's second respirator trial involving coal mine dust. The jury ultimately determined that the plaintiff's claims were barred by the statute of limitations. In November 2017, the court denied the plaintiff's motion for a new trial. The plaintiff did not file an appeal, thereby ending the litigation. In February 2018, 3M received a verdict in its favor from a jury in state court in California. The plaintiff alleged that the 3M 8710 respirator was defective and caused his mesothelioma because it did not protect him from asbestos fibers. The jury rejected plaintiff's claim and returned a verdict finding no liability against 3M. In April 2018, a jury in state court in Kentucky found 3M's 8710 respirators failed to protect two coal miners from coal mine dust and awarded aggregate compensatory damages of approximately US$2 million and punitive damages totaling US$63 million. In August 2018, the trial court entered judgment and the Company has appealed. The Company believes liability in this case is not probable and estimable. In June 2018, the Company also settled a number of coal mine dust lawsuits for an amount that was not material to the Company. "The Company has demonstrated in these past trial proceedings that its respiratory protection products are effective as claimed when used in the intended manner and in the intended circumstances. Consequently, the Company believes that claimants are unable to establish that their medical conditions, even if significant, are attributable to the Company's respiratory protection products. Nonetheless the Company's litigation experience indicates that claims of persons with malignant conditions are costlier to resolve than the claims of unimpaired persons, and it therefore believes the average cost of resolving pending and future claims on a per-claim basis will continue to be higher than it experienced in prior periods when the vast majority of claims were asserted by medically unimpaired claimants." A full-text copy of the Form 10-Q is available at https://is.gd/Kwy850 ASBESTOS UPDATE: 5th Cir. Dismisses Williams Consolidated Appeals ----------------------------------------------------------------- The Fifth Circuit of the United States Court of Appeals has dismissed four consolidated appeals for lack of jurisdiction when the district court dismissed remaining defendants without prejudice and did not enter an order pursuant to Rule 54(b) of the Federal Rules of Civil Procedure. The appealed case is styled Tarsia Williams; Breck Williams, Plaintiffs-Appellants, v. Taylor-Seidenbach, Incorporated, Defendant-Appellee. Tarsia Williams; Breck Williams, Plaintiffs-Appellants, v. McCarty Corporation, Defendant-Appellee. Tarsia Williams; Breck Williams, Plaintiffs-Appellants, v. Boeing Company, Defendant-Appellee. Tarsia Williams; Breck Williams, Plaintiffs-Appellants, v. Lockheed Martin Corporation, individually and as successor-in-interest to Martin Marietta, Incorporated, Defendant-Appellee, No. 16-31233, consolidated with Nos. 16-31236, 17-30230, 17-30231, (5th Cir.). Decedent Frank Williams, Jr., a former employee of Lockheed Martin Corporation's predecessor, Martin Marietta Corporation, allegedly contracted malignant mesothelioma through exposure to asbestos. Williams claimed that such asbestos exposure occurred during the normal course of his employment as a mechanical engineer at the NASA Michoud Assembly Facility, beginning prior to 1974. In November 2008, Williams filed suit in Civil District Court for the Parish of Orleans, asserting multiple liability theories, such as negligence, intentional tort, fraud, strict liability and absolute liability, against several defendants, including Taylor-Seidenbach Incorporated, McCarty Corporation, Boeing Company, and Lockheed Martin. Thereafter, Lockheed Martin removed the action to the United States District Court for the Eastern District of Louisiana, alleging that federal subject matter exists under the federal officer removal statute. Subsequently, the Judicial Panel on Multidistrict Litigation transferred the action to the In re: Asbestos Products Liability Litigation, MDL No. 875, pending in the United States District Court for the Eastern District of Pennsylvania. While the matter was pending in the Asbestos MDL court, Williams' two children, Tarsia Williams and Breck Williams, were substituted as plaintiffs following their father's death. The Asbestos MDL court denied two motions to remand filed by the Williamses, issued various orders relevant to discovery matters, granted motions for summary judgment as to several defendants, and ultimately remanded the entire case (including the remaining claims) back to the E.D. La. for further proceedings. Following remand to the E.D. La., the Williamses moved to voluntarily dismiss their claims against four remaining defendants. The E.D. La. dismissed the claims against one remaining defendant with prejudice. However, neither the Williamses' motion nor the E.D. La.'s order of dismissal relevant to the other three defendants stated whether the dismissal was with or without prejudice. Thereafter, the Williamses filed several notices of appeal with the Fifth Circuit relevant to various orders concerning Boeing, TSI, McCarty, and Lockheed Martin. Subsequently, the Williamses filed a motion in the E.D. La., seeking a final judgment under Federal Rule of Civil Procedure 54. While that motion was pending in the E.D. La. However, Lockheed Martin and Boeing filed motions to dismiss the pending appeals in the Fifth Circuit for lack of jurisdiction, which the Court granted. In granting Lockheed Martin's motion, the Fifth Circuit explained that it did not have jurisdiction over the appeal because one of the orders of dismissal was silent as to whether the dismissal of certain defendants was with or without prejudice, and because the Williamses seemingly conceded that a Rule 54 order was necessary to invoke appellate jurisdiction by filing for such relief with the district court. Despite their pending Rule 54 motion, the Williamses then filed a "Motion to Request Final Judgment Under Rule 58" in the E.D. La., arguing that "judgments in favor of all Defendants be certified as final and appealable under the provisions of Rule 58(b)(1)(C)" because "all claims against all Defendants have been dismissed and there are no defendants left before the court." The E.D. La. granted the Williamses' Rule 58 motion and dismissed the Rule 54 motion as moot. Additionally, prior to the E.D. La.'s order on the Williamses' Rule 58 motion, the court consolidated Tarsia Williams, et al. v. Lockheed Martin Corp., Civil Action No. 09-65, with another civil action filed by the Williamses, which also concerned their deceased's father alleged exposure to asbestos at the MAF. The Williamses again filed notices of appeal relevant to various discovery orders and the grant of summary judgment motions in favor of Lockheed Martin and Boeing. The appellees now challenge whether the Fifth Circuit possesses appellate jurisdiction, arguing that the E.D. La. never rendered a final decision as contemplated by 28 U.S.C. Section 1291. Appellees TSI, McCarty, Boeing, and Lockheed Martin seek dismissal of the Williamses' appeals for lack of appellate jurisdiction. Appellees argue that: (1) the Fifth Circuit lacks jurisdiction because the district court did not render a final decision as contemplated by 28 U.S.C. Section 1291, and appellate jurisdiction cannot be manufactured by dismissing remaining defendants without prejudice; and (2) the consolidation of the Williamses' original civil action with another civil action renders the matters a single "judicial unit" for purposes of Rule 54 of the Federal Rules of Civil Procedure. Pursuant to 28 U.S.C. Section 1291 "the court shall have jurisdiction of appeals from all final decisions of the district courts of the United States . . . except where a direct review may be had in the Supreme Court." Prior to invoking the Fifth Circuit's jurisdiction under Section 1291, generally "all claims and issues in a case must be adjudicated in the district court, and a final judgment or order must be issued." Thus, the "final judgment rule" creates appellate jurisdiction only after a district court's "decision that ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.'" Consequently, a district court labeling a judgment final does not necessarily make it so. Moreover, well-settled is the rule that "appellate jurisdiction over a non-final order cannot be created by dismissing the remaining claims without prejudice," and for purposes of Section 1291, a dismissal without prejudice is not considered a "final decision." Under these settled principles, the Fifth Circuit determines that it lacks jurisdiction over the instant appeals. The E.D. La.'s order dismissing three remaining defendants was silent as to whether the dismissal was with or without prejudice, and this court presumes that a voluntary dismissal takes place without prejudice, unless stated otherwise. Thus, the E.D. La.'s order of dismissal, which did not indicate whether it was with or without prejudice, was not a "final decision" under Section 1291 and did not create appellate jurisdiction. Moreover, the E.D. La.'s grant of the Williamses' Rule 58 motion for entry of judgment similarly did not create appellate jurisdiction, as such order did not alter the district court's dismissal of multiple defendants without prejudice. While the Williamses argue that a district court granting a motion that requests final judgment under Rule 58(b)(1)(C) does in fact create a final judgment, this assertion is incorrect. Rule 58(b)(1)(C) only directs the clerk to "promptly prepare, sign, and enter the judgment when . . . the court denies all relief," but the rule specifically states that it is subject to Rule 54(b). Accordingly, the Fifth Circuit would have jurisdiction over the involuntary dismissals if the E.D. La. had certified them under Rule 54(b). A copy of the Per Curiam dated August 24, 2018, is available at https://tinyurl.com/y7cqph9r from Leagle.com. Caleb H. Didriksen, III -- caleb@dswplaw.com -- for Plaintiff-Appellant. Christopher Kelly Lightfoot , for Defendant-Appellee. Anne Elizabeth Medo , for Defendant-Appellee. Edward Lassus, Jr. , for Defendant-Appellee. ASBESTOS UPDATE: Carlisle Cos. Still Faces Claims at Sept. 30 ------------------------------------------------------------- Carlisle Companies Incorporated said in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2018, that the amount of "reasonably possible" additional asbestos claims, if any, "is not material to" its financial position and operations. The Company states, "Over the years, the Company has been named as a defendant, along with numerous other defendants, in lawsuits in various state courts in which plaintiffs have alleged injury due to exposure to asbestos-containing brakes, which Carlisle manufactured in limited amounts between the late-1940s and the mid-1980s. In addition to compensatory awards, these lawsuits may also seek punitive damages. Generally, the Company has obtained dismissals or settlements of its asbestos-related lawsuits with no material effect on its financial condition, results of operations, or cash flows. The Company maintains insurance coverage that applies to the Company's defense costs and payments of settlements or judgments in connection with asbestos-related lawsuits. At this time, the amount of reasonably possible asbestos claims, if any, is not material to the Company's financial position, results of operations, or operating cash flows, although these matters could result in the Company being subject to monetary damages, costs or expenses, and charges against earnings in particular periods." A full-text copy of the Form 10-Q is available at https://is.gd/dxLH70 ASBESTOS UPDATE: Colfax Had $54.6MM Accrued Liability at Sept. 28 ----------------------------------------------------------------- Colfax Corporation had accrued asbestos-related liability of US$54,580,000 and long-term asbestos liability of US$288,689,000 as of September 28, 2018, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 28, 2018. The accrued liability represents current accruals for probable and reasonably estimable asbestos-related liability costs that the Company believes the subsidiaries will pay, and unpaid legal costs related to defending themselves against asbestos-related liability claims and legal action against the Company's insurers, which is included in Accrued liabilities in the Condensed Consolidated Balance Sheets. The Company states, "Management's analyses are based on currently known facts and assumptions. Projecting future events, such as new claims to be filed each year, the average cost of resolving each claim, coverage issues among layers of insurers, the method in which losses will be allocated to the various insurance policies, interpretation of the effect on coverage of various policy terms and limits and their interrelationships, the continuing solvency of various insurance companies, the amount of remaining insurance available, as well as the numerous uncertainties inherent in asbestos litigation could cause the actual liabilities and insurance recoveries to be higher or lower than those projected or recorded which could materially affect the Company's financial condition, results of operations or cash flow." A full-text copy of the Form 10-Q is available at https://is.gd/VyYV6T ASBESTOS UPDATE: Colfax Had 16,269 Unresolved Claims at Sept. 28 ---------------------------------------------------------------- Colfax Corporation had 16,269 unresolved claims related to asbestos matters as of September 28, 2018, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 28, 2018. The Company also disclosed that in the nine months ended September 28, 2018, there were 2,982 claims filed and 4,450 claims resolved. The Company states, "Claims filed include all asbestos claims for which notification has been received or a file has been opened. "Claims resolved include all asbestos claims that have been settled, dismissed or that are in the process of being settled or dismissed based upon agreements or understandings in place with counsel for the claimants." A full-text copy of the Form 10-Q is available at https://is.gd/VyYV6T ASBESTOS UPDATE: Equity LifeStyle, DAs Still in Talks at Sept. 30 ----------------------------------------------------------------- Equity LifeStyle Properties, Inc. said in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2018, that they continue to assess the allegations and the underlying facts regarding to the alleged asbestos-related violations on its properties in California. The Company states, "In November 2014, we received a civil investigative subpoena from the office of the District Attorney for Monterey County, California ("MCDA"), seeking information relating to, among other items, statewide compliance with asbestos and hazardous waste regulations dating back to 2005 primarily in connection with demolition and renovation projects performed by third-party contractors at our California Properties. We responded by providing the information required by the subpoena. "On October 20, 2015, we attended a meeting with representatives of the MCDA and certain other District Attorneys' offices at which the MCDA reviewed the preliminary results of their investigation including, among other things, (i) alleged violations of asbestos and related regulations associated with approximately 200 historical demolition and renovation projects in California; (ii) potential exposure to civil penalties and unpaid fees; and (iii) next steps with respect to a negotiated resolution of the alleged violations. "No legal proceedings have been instituted to date and we are involved in settlement discussions with the District Attorneys' offices. We continue to assess the allegations and the underlying facts, and at this time we are unable to predict the outcome of the investigation or reasonably estimate any possible loss." A full-text copy of the Form 10-Q is available at https://is.gd/ozcckE ASBESTOS UPDATE: Ingersoll-Rand Had $561MM Liabilities at Sept. 30 ------------------------------------------------------------------ Ingersoll-Rand Public Limited Company has total asbestos-related liabilities of US$560.7 million as of September 30, 2018, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2018. Ingersoll-Rand states, "The Company's asbestos insurance receivables related to Ingersoll-Rand Company and Trane were US$130.5 million and US$119.0 million at September 30, 2018, respectively, and US$138.5 million and US$127.9 million at December 31, 2017, respectively. "The receivable attributable to Trane for probable insurance recoveries as of September 30, 2018 is entirely supported by settlement agreements between Trane and the respective insurance carriers. Most of these settlement agreements constitute "coverage-in-place" arrangements, in which the insurer signatories agree to reimburse Trane for specified portions of its costs for asbestos bodily injury claims and Trane agrees to certain claims-handling protocols and grants to the insurer signatories certain releases and indemnifications. "In 2012 and 2013, Ingersoll-Rand Company filed actions in the Superior Court of New Jersey, Middlesex County, seeking a declaratory judgment and other relief regarding the Company's rights to defense and indemnity for asbestos claims. The defendants were several dozen solvent insurance companies, including companies that had been paying a portion of Ingersoll-Rand Company's asbestos claim defense and indemnity costs. The responding defendants generally challenged the Company's right to recovery, and raised various coverage defenses. Since filing the actions, Ingersoll-Rand Company has settled with approximately two-thirds of the insurer defendants, and has dismissed one of the actions in its entirety. "The Company continually monitors the status of pending litigation that could impact the allocation of asbestos claims against the Company's various insurance policies. The Company has concluded that its Ingersoll-Rand Company insurance receivable is probable of recovery because of the following factors: * Ingersoll-Rand Company has reached favorable settlements regarding asbestos coverage claims for the majority of its recorded asbestos-related insurance receivable; * a review of other companies in circumstances comparable to Ingersoll-Rand Company, including Trane, and the success of other companies in recovering under their insurance policies, including Trane's favorable settlements; * the Company's confidence in its right to recovery under the terms of its policies and pursuant to applicable law; and * the Company's history of receiving payments under the Ingersoll-Rand Company insurance program, including under policies that had been the subject of prior litigation. "The amounts recorded by the Company for asbestos-related liabilities and insurance-related assets are based on currently available information. The Company's actual liabilities or insurance recoveries could be significantly higher or lower than those recorded if assumptions used in the calculations vary significantly from actual results. Key variables in these assumptions include the number and type of new claims to be filed each year, the average cost of resolution of each such new claim, the resolution of coverage issues with insurance carriers, and the solvency risk with respect to the Company's insurance carriers. Furthermore, predictions with respect to these variables are subject to greater uncertainty as the projection period lengthens. Other factors that may affect the Company's liability include uncertainties surrounding the litigation process from jurisdiction to jurisdiction and from case to case, reforms that may be made by state and federal courts, and the passage of state or federal tort reform legislation. "The aggregate amount of the stated limits in insurance policies available to the Company for asbestos-related claims acquired over many years and from many different carriers, is substantial. However, limitations in that coverage, primarily due to the considerations, are expected to result in the projected total liability to claimants substantially exceeding the probable insurance recovery." A full-text copy of the Form 10-Q is available at https://is.gd/s55JoI ASBESTOS UPDATE: Lopez P.I. Claims vs. McDermott Dismissed ---------------------------------------------------------- The Hon. Eldon E. Fallon of United States District Court for the Eastern District of Louisiana has granted Defendant McDermott, Inc.'s motion for summary judgment and dismissed Plaintiffs' claims against McDermott in the case styled Federico Lopez et al., v. McDermott, Inc. et al., Section "L" (5). Civil Action No. 17-8977. (E.D. La.), with prejudice. In June 2017, Plaintiff Federico Lopez brought strict liability/negligence claims against the Defendants as miners/manufacturers/sellers/suppliers distributors, premises owners, contractors, or employers alleging that he was exposed to asbestos by Defendants and contracted malignant mesothelioma. He alleged that he was exposed to asbestos from 1971-1973 while working as a gasket cutter for Defendant Lamons Gasket Company and then again from 1973-1986 while working for Kellogg Brown & Root as a welder/pipefitter. Following his death on November 9, 2017, his surviving spouse, Maricela Lopez, and surviving child, Federico Lopez III, assert a wrongful death claim on behalf of Plaintiff Federico Lopez and also ask for damages for medical expenses, lost earnings, pain and suffering, loss of consortium, and loss of quality of life. In September 2017, Defendants removed the suit arguing that Plaintiffs claims are based on Defendants' activities on the Outer Continental Shelf. In October 2017, Plaintiffs filed a motion to remand which was denied by the Court on January 24, 2018. Defendant McDermott, Inc. has filed a motion for summary judgment arguing that Plaintiffs have no facts supporting that Mr. Lopez was exposed to asbestos by their actions or on their premises. Mr. Lopez testified that he was only around McDermott employees on one project and that those employees' activities did not generate asbestos dust. Furthermore, Defendant asserts there are no records indicating that Mr. Lopez was ever an employee of McDermott or at a McDermott facility. Accordingly, Defendant McDermott argues that Plaintiffs cannot sustain a claim against it for exposure to asbestos. The Court explains that Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which the party will bear the burden of proof at trial. Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." If the moving party meets that burden, then the nonmoving party must use evidence cognizable under Rule 56 to demonstrate the existence of a genuine issue of material fact. Because Defendant's motion is unopposed, the Court finds that there are no genuine issues of material fact. By Plaintiff's own testimony he was not exposed to asbestos at a McDermott facility or because of the actions of McDermott employees. Accordingly, the Court sustains that Plaintiffs' claims against Defendant McDermott should be dismissed. Federico Lopez, Plaintiff, represented by Lindsey A. Cheek & Ryan M. Sweet , Flint Law Firm, LLC, pro hac vice. Maricela Lopez & Federico Lopez, III, Plaintiffs, represented by Ryan M. Sweet , Flint Law Firm, LLC, pro hac vice. Shell Oil Company & Tennessee Gas Pipeline Company, LLC, formerly known as Tenneco Inc., Defendants, represented by Gregory M. Anding -- greg.anding@keanmiller.com -- Kean Miller, Alexandra E. Rossi -- alexandra.rossi@keanmiller.com -- Kean Miller, Allison N. Benoit -- allison.benoit@keanmiller.com -- Kean Miller, Anthony M. Williams -- anthony.williams@keanmiller.com -- Kean Miller LLP, Bradley Joseph Schlotterer -- brad.schlotterer@keanmiller.com -- Kean Miller LLP, Gayla M. Moncla -- gayla.moncla@keanmiller.com -- Kean Miller, Jay Morton Jalenak, Jr. -- jay.jalenak@keanmiller.com -- Kean Miller, Robert E. Dille -- RDille@maronmarvel.com -- Maron Marvel Bradley Anderson & Tardy LLC, Sarah W. Anderson -- sarah.anderson@keanmiller.com -- Kean Miller & Sean T. McLaughlin -- sean.mclaughlin@keanmiller.com -- Kean Miller LLP. Boardwalk Petrochemical Pipeline LLC, formerly known as Chevron Petrochemical Pipeline LLC, formerly known as Texaco Petrochemical Pipeline LLC, Defendant, represented by Terrence Kent Knister -- tknister@gamb.law -- Gordon, Arata, Montgomery & Barnett, Ewell E. Eagan, Jr. -- eeagan@gamb.law -- Gordon, Arata, Montgomery & Barnett & James D. Rhorer -- jrhorer@gamb.law -- Gordon, Arata, Montgomery & Barnett. ExxonMobil Corporation, Incorrectly named Exxon Mobil Oil Corporation, Defendant, represented by David Mark Bienvenu, Jr. -- David.Bienvenu@bblawla.com -- Bienvenu, Bonnecaze, Foco, Viator & Holinga, APLLC, Erin Percy Tadie -- erin.tadie@bblawla.com -- Bienvenu, Bonnecaze, Foco, Viator & Holinga, APLLC, Anthony John Gambino , Bienvenu, Bonnecaze, Foco, Viator & Holinga, APLLC, James McClendon Williams -- JMW@CHEHARDY.COM -- Chehardy, Sherman, Williams, Murray, Recile, Stakelum & Hayes, LLC, John Allain Viator -- John.Viator@bblawla.com -- Bienvenu, Bonnecaze, Foco, Viator & Holinga, APLLC, Lexi T. Holinga -- lexi.holinga@bblawla.com -- Bienvenu, Bonnecaze, Foco, Viator & Holinga, APLLC & Melissa Jade Shaffer -- jade.shaffer@bblawla.com -- Bienvenu, Bonnecaze, Foco, Viator & Holinga, APLLC. Foster Wheeler, LLC, as the survivor to the merger with Foster Wheeler Corporation & General Electric Company, Defendants, represented by John Joseph Hainkel, III -- jhainkel@frilot.com -- Frilot L.L.C., Angela M. Bowlin -- abowlin@frilot.com -- Frilot L.L.C., James H. Brown, Jr. -- jbrown@frilot.com -- Frilot L.L.C., Kelly L. Long -- klong@frilot.com -- Frilot L.L.C., Kelsey A. Eagan -- keagan@frilot.com -- Frilot L.L.C. & Magali Ann Puente-Martin -- mpuente@frilot.com -- Frilot L.L.C. Goulds Pumps LLC & ITT LLC, formerly known as ITT Industries, Inc., Defendants, represented by Lauren Ann McCulloch -- lauren.mcculloch@morganlewis.com -- Morgan, Lewis & Bockius & Mitchell F. Tedesco -- mitchell.tedesco@morganlewis.com -- Morgan, Lewis & Bockius. John Crane Inc, Defendant, represented by Kenan Slade Rand, Jr. -- krand@pmpllp.com -- Plauche, Maselli, Parkerson, LLP, Elizabeth Attie Babin Carville -- acarville@pmpllp.com -- Plauche, Maselli, Parkerson, LLP, Katelyn W. Harrell -- kharrell@pmpllp.com -- Plauche, Maselli, Parkerson, LLP, Lacey Sarver Goss , Lacey Sarver Goss, Attorney at Law, Lauren B. Dietzen -- ldietzen@pmpllp.com -- Plauche, Maselli, Parkerson, LLP & Scott H. Mason -- smason@pmpllp.com -- Plauche, Maselli, Parkerson, LLP. Marathon Oil Company, Defendant, represented by Tim Gray -- tim.gray@formanwatkins.com -- Forman, Watkins & Krutz LLP, Amy Louise Maccherone -- amy.maccherone@formanwatkins.com -- Forman, Watkins & Krutz LLP, Etienne Francis Rene , Forman, Watkins & Krutz LLP, Melissa Desormeaux Fuller , Kuchler Polk Weiner, LLC, Michael H. Abraham -- michael.abraham@formanwatkins.com -- Forman, Watkins & Krutz LLP & Michelle Miller Roy -- michelle.roy@formanwatkins.com -- Forman, Watkins & Krutz LLP. Otto Candies, L.L.C., Defendant, represented by Rufus C. Harris, III , Harris & Rufty, LLC, Alfred Jackson Rufty, III , Harris & Rufty, LLC & Cindy Galpin Martin , Harris & Rufty, LLC. Reilly-Benton Co., Inc., Defendant, represented by Thomas L. Cougill , Willingham Fultz & Cougill, LLP, Jamie M. Zanovec , Willingham Fultz & Cougill, LLP, Jennifer H. McLaughlin , Willingham Fultz & Cougill, LLP & Jennifer D. Zajac , Willingham Fultz & Cougill, LLP. Taylor-Seidenbach, Inc., Defendant, represented by Christopher Kelly Lightfoot -- klightfoot@hmhlp.com -- Hailey, McNamara, Hall, Larmann & Papale, LLP, Edward J. Lassus, Jr. , Hailey, McNamara, Hall, Larmann & Papale, LLP & Richard J. Garvey, Jr. -- jgarvey@hmhlp.com -- Hailey, McNamara, Hall, Larmann & Papale, LLP. Crosby Valves, LLC, A Wholly owned subsidiary of Emerson Electric Co., Defendant, represented by John Joseph Hainkel, III -- jhainkel@frilot.com -- Frilot L.L.C., Angela M. Bowlin -- abowlin@frilot.com -- Frilot L.L.C., Barry C. Campbell , Frilot L.L.C., James H. Brown, Jr. -- jbrown@frilot.com -- Frilot L.L.C., Kelly L. Long -- klong@frilot.com -- Frilot L.L.C., Kelsey A. Eagan -- keagan@frilot.com -- Frilot L.L.C., Lacey Taylor McCoy -- lmccoy@frilot.com -- Frilot L.L.C. & Magali Ann Puente-Martin -- mpuente@frilot.com -- Frilot L.L.C. Chevron U.S.A. Inc., Defendant, represented by Tim Gray -- tim.gray@formanwatkins.com -- Forman, Watkins & Krutz LLP, Amy Louise Maccherone -- amy.maccherone@formanwatkins.com -- Forman, Watkins & Krutz LLP, Melissa Desormeaux Fuller , Kuchler Polk Weiner, LLC, Michael H. Abraham -- michael.abraham@formanwatkins.com -- Forman, Watkins & Krutz LLP & Michelle Miller Roy -- michelle.roy@formanwatkins.com -- Forman, Watkins & Krutz LLP. John Crane Inc & Lamons Gasket Company, Third Party Plaintiffs, represented by Kenan Slade Rand, Jr. -- krand@pmpllp.com -- Plauche, Maselli, Parkerson, LLP, Elizabeth Attie Babin Carville -- acarville@pmpllp.com -- Plauche, Maselli, Parkerson, LLP, Katelyn W. Harrell -- kharrell@pmpllp.com -- Plauche, Maselli, Parkerson, LLP, Lacey Sarver Goss , Lacey Sarver Goss, Attorney at Law, Lauren B. Dietzen -- ldietzen@pmpllp.com -- Plauche, Maselli, Parkerson, LLP & Scott H. Mason -- smason@pmpllp.com -- Plauche, Maselli, Parkerson, LLP. ASBESTOS UPDATE: Michel P.I. Suit Remains in District Court ----------------------------------------------------------- The Hon. Sarah S. Vance of the United States District Court for the Eastern District Louisiana denies Plaintiffs' motion to remand the case styled Victor Michel, et al., v. Ford Motor Company, et al., Section "R" (4), Civil Action No. 18-4738, (E.D. La.). The case arises out of Victor Michel's alleged asbestos exposure as a result of his work as a mechanic and generator service technician. He filed this action in state court on July 28, 2017 after being diagnosed with mesothelioma. Michel named numerous defendants in his complaint, including Taylor-Seidenbach, Inc. and Cummins, Inc. The only remaining defendant that is a citizen of Louisiana is Taylor-Seidenbach. In their state court petition, Plaintiffs make generic allegations that Taylor-Seidenbach and the other named defendants manufactured, supplied, or sold asbestos containing materials and were generally negligent in failing to provide a safe workplace. Plaintiffs also allege that Michel was exposed to asbestos from unspecified Taylor-Seidenbach products at unspecified locations. Plaintiffs do not assert specific fault allegations against Taylor-Seidenbach individually. The state court pleadings do not contain discrete facts that allow the court to determine the propriety of joining Taylor-Seidenbach in particular. On May 8, 2018, Cummins removed the action to the United States District Court for the Eastern District Louisiana after receiving a deposition transcript purportedly demonstrating that Taylor-Seidenbach was fraudulently joined to defeat diversity jurisdiction. Shortly thereafter, Michel died, and the Court substituted his survivors as plaintiffs. Two of the survivors are also Louisiana citizens. Plaintiffs have now filed a motion to remand asserting a lack of diversity jurisdiction. Cummins opposes the motion relying on several pieces of evidence to meet its burden. First, Cummins argues that plaintiffs have shaped this case to focus on gasket and friction products. None of the plaintiffs' experts reference products of the type produced by Taylor-Seidenbach in their testimony. Plaintiffs' witness list similarly does not contain witnesses who could establish a reasonable possibility of proving liability against Taylor-Seidenbach. Cummins also argues that the discovery deadline has passed, as has the deadline to file witness lists. Thus, it argues, plaintiffs cannot put forward new evidence that would establish a reasonable possibility of recovery against Taylor-Seidenbach. In response, plaintiffs cite an affidavit from another case, given by a former employee of Taylor-Seidenbach, Dwight Corcoran -- this affidavit was not included in the discovery materials exchanged by the parties in state court. It lists jobsites at which Corcoran worked with asbestos containing products, some of which Taylor-Seidenbach supplied. Michel testified that he visited sites on Corcoran's list in the course of his employment for Menge Pump & Machinery -- only occasionally to service standby generators located in their own sheds away from other machinery. Plaintiffs conclude that Corcoran's affidavit supplies a basis to find that he suffered mesothelioma from asbestos exposure to Taylor-Seidenbach products. The Court determines Corcoran's affidavit inadmissible at trial because the discovery deadline has passed. Even if it were admissible, it is insufficient to establish a reasonable chance of prevailing under state law, which requires a plaintiff to show that the defendant's products were a substantial factor in causing his injury. The Court finds instead Corcoran's affidavit (a) does not provide evidence that Michel worked with or was exposed to Taylor-Seidenbach's asbestos products; (b) does not establish that Taylor-Seidenbach supplied asbestos-containing pipe insulation to the sites on the list; and (c) merely states that Corcoran worked with corrugated asbestos panels, trim, and grout, and separately that he "worked closely with and next to the pipe insulators." The Court finds no evidence on record that Michel worked as a pipe insulator at these facilities, or that Taylor-Seidenbach provided asbestos pipe insulation there. Indeed, Corcoran does not even state that the pipe insulation at these facilities contained asbestos. At most, the Corcoran affidavit shows that Taylor-Seidenbach had asbestos products in the areas where Corcoran worked at these facilities, and Michel only occasionally worked somewhere on the premises at those same facilities. Thus, Cummins has proven that Plaintiffs have no reasonable basis for recovery and that it has met its burden and shown that Taylor-Seidenbach is improperly joined as a defendant in this case. In addition, Plaintiffs allege that, even if Taylor-Seidenbach is improperly joined, the case must be remanded because removal was untimely. Cummins had thirty days to remove from the date of receipt of "other paper" that allowed it to first ascertain that the case was removable. Plaintiffs argue that the Court should start the 30-day clock at the end of Michel's deposition on October 4, 2017, because Cummins had an opportunity to cross-examine Michel that day and could have determined the strength of the case against Taylor-Seidenbach through their examination. The Court explains that Michel's deposition is not determinative because plaintiffs still had the opportunity at that time to obtain evidence of Taylor-Seidenbach's liability through discovery. The Court concludes that the removal was within the 30-day "other paper" deadline because Plaintiffs' last opportunity to obtain additional evidence was on April 5, 2018 when plaintiffs' final witness, Dr. Brent Staggs, was deposed. The Court explains that neither Staggs deposition nor any previous discovery provided evidence raising a reasonable possibility of recovery against Taylor-Seidenbach. Cummins received the transcript of the Staggs deposition -- which constitutes "other paper" under 28 U.S.C. Section 1446(b) -- on April 9, 2018. Therefore, Cummins removed within the statute's 30-day deadline on May 8, 2018. Keith Michel, On behalf of Victor Michel, Norbert Michel, On Behalf of Victor Michel & Vickie Michel, On Behalf of Victor Michel, Plaintiffs, represented by Alex S. Dunn, Jr. -- adunn@gorijulianlaw.com -- Gori, Julian & Associates, P.C. & Ashley Lynette Page -- apage@gorijulianlaw.com -- Gori, Julian & Associates, P.C. Aurora Pump Company & Borg-Warner Morse Tec LLC, As successor-by-merger to Borg-Warner Corporation, Defendants, represented by Glenn L.M. Swetman , MG+M The Law Firm, Bradley Adam Hays -- ahays@mgmlaw.com -- MG+M The Law Firm, Brandie Mendoza Thibodeaux -- bthibodeaux@mgmlaw.com -- MG + M The Law Firm, Christopher O. Massenburg -- cmassenburg@mgmlaw.com -- MG+M The Law Firm, Danielle Mikel Sczesny , MG+M The Law Firm, David R. Frohn -- dfrohn@mgmlaw.com -- MGM Law Firm,Helen Meredith Buckley -- hbuckley@mgmlaw.com -- MG+M The Law Firm, Jeanette Seraile-Riggins -- jriggins@mgmlaw.com -- MG+M The Law Firm, Meghan B. Senter -- msenter@mgmlaw.com -- MG+M The Law Firm, Natasha Amber Corb -- ncorb@mgmlaw.com -- MG+M The Law Firm & Quinn Kelcie Brown , MG+M The Law Firm. Certain-Teed Corporation, Dana Companies LLC, formerly known as DCO, LLC & Pneumo Abex Corporation, Defendants, represented by Barbara Bourgeois Ormsby -- bormsby@deutschkerrigan.com -- Deutsch Kerrigan LLP, William Claudy Harrison, Jr. -- wharrison@deutschkerrigan.com -- Deutsch Kerrigan LLP, Arthur Wendel Stout, III -- wstout@deutschkerrigan.com -- Deutsch Kerrigan LLP, Jason P. Franco -- jfranco@deutschkerrigan.com -- Deutsch Kerrigan LLP & Jennifer E. Adams -- jadams@deutschkerrigan.com -- Deutsch Kerrigan LLP. Crane Company, Defendant, represented by Lawrence G. Pugh, III -- lpugh@pugh-law.com -- Pugh, Accardo, LLC, Donna M. Young -- dyoung@pugh-law.com -- Pugh, Accardo, LLC, Jacqueline Romero -- jromero@pugh-law.com -- Pugh, Accardo, LLC & Shelley L. Thompson -- sthompson@pugh-law.com -- Pugh, Accardo, LLC. Cummins Inc, Defendant, represented by Joseph Henry Hart, IV -- jhart@pugh-law.com -- Pugh, Accardo, LLC, Daniel E. Oser -- doser@pugh-law.com -- Pugh, Accardo, LLC & Thomas A. Porteous -- tporteous@pugh-law.com -- Pugh, Accardo, LLC. Dap, Inc., Defendant, represented by Kay Barnes Baxter , Cosmich Simmons & Brown, PLLC, Ashley A. Edwards , Cosmich Simmons & Brown, PLLC, Forrest Ren Wilkes -- ren@cs-law.com -- Cosmich Simmons & Brown, PLLC, Georgia Noble Ainsworth -- georgia@cs-law.com -- Cosmich Simmons & Brown, PLLC, Jason K. Elam -- jason.elam@cs-law.com -- Cosmich Simmons & Brown, PLLC, Margaret Adams Casey , Cosmich Simmons & Brown, PLLC & Martin James Dempsey, Jr. -- jimmy@cs-law.com -- Cosmich Simmons & Brown, PLLC. Ford Motor Company, Defendant, represented by Deborah DeRoche Kuchler -- dkuchler@kuchlerpolk.com -- Kuchler Polk Weiner, LLC, Amber B. Barlow -- abarlow@kuchlerpolk.com -- Kuchler Polk Weiner, LLC, Janika D. Polk -- jpolk@kuchlerpolk.com -- Kuchler Polk Weiner, LLC, Lee Blanton Ziffer -- lziffer@kuchlerpolk.com -- Kuchler Polk Weiner, LLC & Monique M. Weiner -- mweiner@kuchlerpolk.com -- Kuchler Polk Weiner, LLC. General Electric Company & Genuine Parts Company, Defendants, represented by John Joseph Hainkel, III -- jhainkel@frilot.com -- Frilot L.L.C., Angela M. Bowlin -- abowlin@frilot.com -- Frilot L.L.C., Barry C. Campbell , Frilot L.L.C., James H. Brown, Jr. -- jbrown@frilot.com -- Frilot L.L.C., Kelly L. Long -- klong@frilot.com -- Frilot L.L.C., Kelsey A. Eagan -- keagan@frilot.com -- Frilot L.L.C., Lacey Taylor McCoy -- LMcCoy@frilot.com -- Frilot L.L.C. & Magali Ann Puente-Martin -- mpuente@frilot.com -- Frilot L.L.C. Honeywell International, Inc., in its capacity as successor to Bendix and successor in Interest to AlliedSignal, Inc., Defendant, represented by Eric Shuman -- eshuman@mcglinchey.com -- McGlinchey Stafford, PLLC & Sarah Elizabeth McMillan -- semcmillan@mcglinchey.com -- McGlinchey Stafford, PLLC. Metropolitan Life Insurance Company, Defendant, represented by Jay Morton Jalenak, Jr. -- jay.jalenak@keanmiller.com -- Kean Miller & Patrick Dale Roquemore -- patrick.roquemore@keanmiller.com -- Kean Miller. Union Carbide Coporation, Defendant, represented by McGready Lewis Richeson -- mricheson@pugh-law.com -- Pugh, Accardo, Haas, Radecker & Carey, Ernest G. Foundas -- efoundas@pugh-law.com -- Pugh, Accardo, LLC, Francis Xavier deBlanc, III -- fdeblanc@pugh-law.com -- Pugh, Accardo, Haas, Radecker & Carey, Kathleen Erin Jordan -- kjordan@pugh-law.com -- Pugh, Accardo, Haas, Radecker & Carey, Milele N. St. Julien -- mstjulien@pugh-law.com -- Pugh, Accardo, Haas, Radecker & Carey & Perrey S. Lee , Pugh, Accardo, LLC. Taylor Seidenbach, Inc., Defendant, represented by Christopher Kelly Lightfoot -- klightfoot@hmhlp.com -- Hailey, McNamara, Hall, Larmann & Papale, LLP, Edward J. Lassus, Jr. , Hailey, McNamara, Hall, Larmann & Papale, LLP & Richard J. Garvey, Jr. -- jgarvey@hmhlp.com -- Hailey, McNamara, Hall, Larmann & Papale, LLP. Honeywell International, Inc., in its capacity as Honeywell, Inc, Defendant, represented by Glenn B. Adams -- gadams@phjlaw.com -- Porteous, Hainkel & Johnson, Matthew Edward Simmons -- msimmons@phjlaw.com -- Porteous, Hainkel & Johnson & Nancy Lee Cromartie -- ncromartie@phjlaw.com -- Porteous, Hainkel & Johnson. Crown Cork & Seal USA, Inc., Defendant, represented by Michael D. Lonegrass -- mlonegrass@gallowaylawfirm.com -- Galloway, Johnson, Tompkins, Burr & Smith & Rodger Gregory Green, Jr. -- rgreenjr@gallowaylawfirm.com -- Galloway, Johnson, Tompkins, Burr & Smith. Bridgestone Americas, Inc., Incorrectly named in the Plaintiff's petition as Bridgestone-Firestone America's Holding, Inc, Defendant, represented by Benjamin J. Guilbeau, Jr. -- bjguilbeau@ssvcs.com -- Stockwell, Sievert, Viccellio, Clements & Shaddock, LLP & John J. Simpson -- jjsimpson@ssvcs.com -- Stockwell, Sievert, Viccellio, Clements & Shaddock, LLP. ASBESTOS UPDATE: MSA Safety Unit Has 1,517 Exposure Lawsuits ------------------------------------------------------------ MSA Safety Incorporated's subsidiary remains a defendant in 1,517 cumulative trauma lawsuits at September 30, 2018, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2018. The Company states, "Our subsidiary, Mine Safety Appliances Company, LLC ("MSA LLC") was named as a defendant in 1,517 cumulative trauma lawsuits comprised of 2,392 claims at September 30, 2018. Cumulative trauma product liability claims involve exposures to harmful substances (e.g., silica, asbestos and coal dust) that occurred years ago and may have developed over long periods of time into diseases such as silicosis, asbestosis, mesothelioma or coal worker's pneumoconiosis. The products at issue were manufactured many years ago and are not currently offered by MSA LLC. A reserve has been established with respect to cumulative trauma product liability claims currently asserted and estimated incurred but not reported ("IBNR") cumulative trauma product liability claims. Because our cumulative trauma product liability risk is subject to inherent uncertainties, including unfavorable trial rulings or developments, an increase in newly filed claims, or more aggressive settlement demands, and since MSA LLC is largely self-insured, there can be no certainty that MSA LLC may not ultimately incur losses in excess of presently recorded liabilities. These losses could have a material adverse effect on our business, operating results, financial condition and liquidity. We will adjust the reserve relating to cumulative trauma product liability claims from time to time based on whether the actual numbers, types and settlement values of claims asserted differ from current projections and estimates or there are significant changes in the facts underlying the assumptions used in establishing the reserve. These adjustments may be material and could materially impact future periods in which the reserve is adjusted." A full-text copy of the Form 10-Q is available at https://is.gd/30thoG ASBESTOS UPDATE: Norfolk Southern Still Defends Asbestosis Claims ----------------------------------------------------------------- Norfolk Southern Corporation still defends itself against occupational claims, including asbestosis, by former or retired employees, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2018. The Company states, "Occupational claims (including asbestosis and other respiratory diseases, as well as conditions allegedly related to repetitive motion) are often not caused by a specific accident or event but rather allegedly result from a claimed exposure over time. Many such claims are being asserted by former or retired employees, some of whom have not been employed in the rail industry for decades. The independent actuarial firm provides an estimate of the occupational claims liability based upon our history of claim filings, severity, payments, and other pertinent facts. The liability is dependent upon judgments we make as to the specific case reserves as well as judgments of the actuarial firm in the quarterly studies. The actuarial firm's estimate of ultimate loss includes a provision for those claims that have been incurred but not reported. This provision is derived by analyzing industry data and projecting our experience. We adjust the liability quarterly based upon our assessment and the results of the study. However, it is possible that the recorded liability may not be adequate to cover the future payment of claims. Adjustments to the recorded liability are reflected in operating expenses in the periods in which such adjustments become known." A full-text copy of the Form 10-Q is available at https://is.gd/jMYMGh ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2018. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000. *** End of Transmission ***