/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/181211.mbx C L A S S A C T I O N R E P O R T E R Tuesday, December 11, 2018, Vol. 20, No. 247 Headlines 3M CO: 4,955 Bair Hugger Claims Filed as of Sept. 30 A-S MEDICATION: Court Enters Judgment in TCPA Suit AAC HOLDINGS: Final Judgment Entered in Tennessee Shareholder Suit ABBVIE INC: 3 Law Firms Vie for Lead Class Counsel Role ABERCROMBIE & FITCH: Court Grants Final Approval of Jones Deal AFFINION GROUP: Conn. Court Dismissed CUTPA Claims v. Webloyalty AHDS Bagel: Agapito et al. Suit Transferred to E.D. New York AHDS BAGEL: Patricio Suit Transferred to E.D. New York AKERS BIOSCIENCES: Still Defends Faulkner Class Lawsuit in N.J. AKERS BIOSCIENCES: Still Faces Gleason Class Action in N.J. AKORN INC: Continues to Defend Joshi Living Trust Class Suit ALABAMA: Ct. Reverses Certification of Individual-Capacities Claims ALIGN TECHNOLOGY: Lu Sues over Share Price Drop ALLTRAN EDUCATION: Proctor Sues over Debt Collection Practices ALTICE USA: Faces O'Neill Securities Suit over IPO, Fin'l Report ALTICE USA: Jan. 18 Lead Plaintiff Motion Deadline Set AMERICAN FINANCE: Appeal in Maryland Class Action Still Pending AMERICAN FINANCE: Faces Hibbard Securities Class Suit AMN SERVICES: Cal. App. Affirms Summary Judgment in Donohue Suit AMPIO PHARMA: 2 Putative Securities Class Suits Underway ATRIUM HEALTH: Employees File ERISA Class Action Over 401(k) Plan ATRIUM HEALTH: Plan Doesn't Comply with ERISA, Shore et al. Say AVANOS MEDICAL: Appeal in Bahamas Surgery Class Suit Still Pending AVINGER INC: Court Approves Settlement in Consolidated Cal. Suit AXA EQUITABLE: Brach Family Foundation Class Action Ongoing AXA EQUITABLE: Still Defends O'Donnell Class Action B RILEY FINANCIAL: Suit Against MLV & Co. Still Ongoing BANK OZK: Wood Sues over Misleading Financial Report BAUSCH HEALTH: Appeal in Afexa-Related Class Suit Underway BAUSCH HEALTH: Briefing in Contact Lens Case Underway BAUSCH HEALTH: Continues to Defend Class Suits in Canada BAUSCH HEALTH: Continues to Defend Shower to Shower Suits in Canada BAUSCH HEALTH: Third-Party Payor Class Suit Remains Stayed BBX CAPITAL: Bid for Protective Order vs. BVU Pending BBX CAPITAL: Landon et al. Class Action Underway BBX CAPITAL: Still Defends Vacation Ownership Interests Suit BLUE APRON: Employee File Class Action Over Labor Law Violations BRE SELECT: Still Defends Battaglia Class Suit in E.D.N.Y. BRIGHAM EXPLORATION: Denial of Boytim Bid to Certify Class Upheld BROOKDALE UNIVERSITY: K.B. Seeks Medical and Funeral Expenses BUCKEYE SHAKER: Faces Class Action Over Employees' Unpaid Wages BUFFALO, NY: BMHA Residents Mull Class Action Over Housing Issues CAFEPRESS INC: Beck Class Suit in Delaware Underway CALLOOH CALLAY: Fails to Pay OT to Ironers, Rivera Suit Says CANADA: Judge Approves '60s Scoop Class Action Legal Fees CANCER GENETICS: Bid to Dismiss NJ Securities Suit Due Dec. 31 CARILLON TOWER: Sued for Securities Fraud, Fiduciary Duty Breach CARLZ ZEISS: Fails to Pay for Overtime, Coleman Says CARRIZO OIL: McLelland Seeks Unpaid Overtime CENTENE MANAGEMENT: Court Narrows Claims in C. Harvey's CPA Suit CENTURYLINK INC: Averts Class Action Over 401(k) Plan CHAPARRAL ENERGY: Appeal in Naylor Farms Class Action Underway CHIPOTLE MEXICAN: To Furnish Class Contact Info in Guzman Suit CIRCLE K: Court Extends Deadline to File Bid for Settlement OK CLIFFORD PICKNEY: District Court Tosses McKinney Suit COFFEE MEETS BAGEL: Rrapo Sues over Dating Referral Services COMCAST CABLE: Blumenthal Nordrehaug Files Class Action COMMAND SECURITY: Franchi Balks at Merger Deal with Prosegur SIS CONTRACTOR MANAGEMENT: Wage & Hour Suit Sent to Arbitration CORIUM INTERNATIONAL: Kent Balks at Merger Deal with Gurnet Point COVIA HOLDINGS: Awaits Court OK on Settlement of Merger Suit CUSTOMERS BANCORP: Edelman Class Suit Dismissed CVS HEALTH: Agrees to Settle Kentucky Class Suit for $20 Million CVS HEALTH: Continues to Defend EpiPen ERISA Class Suit CVS HEALTH: Still Defends Bewley and Prescott Class Suits CVS HEALTH: Still Faces Corcoran and Podgorny Complaints DATAWATCH CORPORATION: Scarantino Balks at Merger Deal with Altair DAYMARK PROPERTIES: Catanzarite Law Firm Represents Investors DEFY MEDIA: YouTube Content Creators Hit by Sudden Closure DENMARK, SC: Faces Class Actions Over Quality of Drinking Water DENMARK, SC: To Obtain Legal Counsel to Defend Well Class Action DIAMONDBACK ENERGY: Files Supplemental Disclosures to Appease Suits DISH DBS: Appeal in Krakauer Action Still Pending in 4th Cir. DISH NETWORK: Accrues $61 Million in Relation to Krakauer Action DITECH HOLDING: Unit Still Defends Class Suit over TCPA Violations DITECH HOLDING: Unit Still Faces Kamimura Class Suit in Nevada DOLLAR TREE: Snipes Bid for Pretrial Scheduling Conference Granted DYNAMIC RECOVERY: Lee Files FDCPA Suit in California EGALET CORP: Appeal in Pennsylvania Consolidated Class Suit Stayed ELECTRONICS FOR IMAGING: Pipitone Case Dismissal Bid Pending EZCORP INC: Still Defends Consolidated Federal Securities Lawsuit FACEBOOK INC: May Face Class Action for Violating GDPR FAIRFIELD INDUSTRIES: Court Narrows Claims in Senegal Suit FAT BRANDS: Alden Class Suit Gets Merged with Rojany Case FAT BRANDS: Bid for Lead Plaintiff, Counsel Pending in "Vignola" FGF BRANDS: Faces Class Action Over Stonefire Naan Products FIFTH THIRD: Appeal in Early Access Cash Advance Suit Pending FIFTH THIRD: Approval of Damages Class Settlement Sought FIRST SOLAR: Trial Date in Smilovits Class Suit Vacated FLIK INT'L: Court Grants Protective Order in Clarke FLSA Suit GANNETT CO: Clark TCPA Suit Remanded to Ill. State Court GENERAL ELECTRIC: Sued over Microwave Oven Paint Peeling Problem GENERATIONS HEALTHCARE: Wins Bid to Decertify Class of HHAs GETSWIFT: Judge Upholds Ruling in Class Action Over Disclosures GILEAD SCIENCES: Sued for Allegedly Withholding HIV Drug GOLDSTONE FINANCIAL: Sued over Sales of Unregistered Securities GOOD GUY: Faces Parent Suit in New Jersey Superior Court GREENSKY INC: Faces Securities Class Action Over May 2018 IPO HEALTH INSURANCE: District Court Junks Moser Discovery Requests HELIX ENERGY: Hernandez Conditional Class Certification Bid OK'd HOME CARE: Wilkins Seeks Overtime Compensation HORTONWORKS INC: Plumley Balks at Merger Deal with Cloudera HUGOTON ROYALTY: Final Settlement Hearing Set for March 2019 ILLINOIS: Buck Files Prisoner Civil Rights Suit INDIANA UNIVERSITY: TRO Bid in Thomas Partly OK'd INFORMED ELECTORATE: Robinson Sues over Unwanted Telephone Calls INTERGLOBO NORTH: Genova Burns Attorney Discusses Court Ruling INVESTMENTS LIMITED: Sued over Mishandling of Security Deposits INVITATION HOMES: Faces Class Action in California Over Late Fees IPIC ENTERTAINMENT: Still Defends Ryan-Nielson Class Suit J.S.P. LIFE: Tackie Seeks Unpaid Overtime Wages JAGUAR HEALTH: Bid to Dismiss Tony Plant's Class Suit Underway JONES FINANCIAL: Anderson Class Action Still Ongoing JONES FINANCIAL: Class Action over 401(k) Plan Ongoing JONES FINANCIAL: Settlement Accounting in "White" Set for Jan. 2019 JONES MOTOR: 7th Cir. Tosses Daley Appeal for Lack of Jurisdiction LADENBURG THALMANN: Still Defends Class Suits vs. ARCP in New York LEXINGTON LAW: Starace Sues over Debiting of Bank Accounts LI YA NAIL: Mengni Sun Seeks Overtime Compensation LINCOLN ELECTRIC: Slaughter Seeks Overtime Pay LM FUNDING: Solaris Class Settlement Obtains Final Court Approval MAGICJACK VOCALTEC: Amended Freedman Suit Dismissed with Prejudice MAHABIR ENTERPRISES: Underpays Waitresses, Acteopan et al. Claim MALLINCKRODT PLC: Still Defends Consolidated Class Suit in D.C. MARTIN COUNTY, FL: Randolph at al. Suit Wins Class Certification MAXIMUS INC: Appeal in Virginia Class Action Pending MDL 2624: $8.3MM Settlement in Lenovo Adware Suit Has Prelim OK MDL 2785: West Va. State Law Claims in Antitrust Suit Dismissed MENLO THERAPEUTICS: Faces Savelstrov Securities Class Action MERCK & CO: Snell Sues over Zostavax Vaccine MGT CAPITAL: Faces 2 Class Suits Alleging Pump-and-Dump Scheme MIDLAND CREDIT: Padron Sues over Debt Collections Practices MITSUBISHI CHEMICAL: Court Dismisses FLSA Claims in Cress Suit MOVIEPASS INC: Tabas et al. Allege Fraud and Breach of Contract MUSEUM OF SEX: Website not Accessible to Blind, Figueroa Says MY SIZE: Suit Against Lightcom Dismissed MYLAN NV: Bid to Dismiss 2nd Amended N.Y. Securities Suit Pending MYLAN NV: Still Defends Antitrust Lawsuits Over Various Products NAMASTE TECHNOLOGIES: Sued over Misleading Financial Report NATIONAL GEOGRAPHIC: Faces Nixon ADA Class Suit in NY NATIONAL VISION: Amended Complaint Filed in Suit vs. FirstSight NATIONWIDE EXPRESS: Omar et al Seek Overtime Pay NEW JERSEY: Wahab Appeals D.N.J. Ruling to Third Circuit NFL: Court Won't Review Ruling in New England Patriot Fans' Suit NIRANJAN MITTAL: Rhoden Seeks Wages for Nurses & Technicians NLFIC: Failed to Reimburse Medicare Payments, MSP Recovery Says NOVUS THERAPEUTICS: Wu v. Tokai Class Suit Underway OCWEN FINANCIAL: Agreement in Principle Entered in McWhorter Suit OCWEN FINANCIAL: Appeal in Carvelli Class Suit Pending OCWEN FINANCIAL: Directed to Pay $53K to Claims Administrator OCWEN FINANCIAL: TCPA Class Action in Illinois Still Ongoing ORRSTOWN FINANCIAL: Pretrial & Settlement Conference on Dec. 11 OVASCIENCE INC: Adlard and Wheby Securities Class Suits Filed PANDORA MEDIA: Dawson Balks at Merger Deal with Sirius XM PANDORA MEDIA: Richard Irvin Balks at Merger Deal with Sirius PANDORA MEDIA: Staab Balks at Merger Deal with Sirius PAPA JOHN'S: Investors' Class Action Underway in New York PC SHIELD: Court Won't Certify TCPA Suit PDC ENERGY: Awaits Court OK on Bid to Dismiss Dufresne Class Suit PORTFOLIO RECOVERY: Ct. Partly Grants Bid for Judgment on Pleadings POULIN VENTURES: Meneses Sues over Telemarketing Text Messages PREMIUM DESTINATIONS: Sued over Unwanted Calls & Text Messages PROTHENA CORP: Two Securities Class Suits Consolidated QUALITY SYSTEMS: Court Approves Settlement in Securities Fraud Suit QWEST CORP: Sales Practices Suit v. CenturyLink Ongoing RCR TOMLINSON: Faces Class Action in Australia Over Share Drop RITE AID: District Court Dismisses Josten Lawsuit SANTANDER HOLDINGS: Merits Discovery in Deka Suit Still Stayed SANTANDER HOLDINGS: Settlement in Parmelee Suit Wins Initial Okay SEAWORLD ENTERTAINMENT: Discovery Ongoing in Baker Class Suit SEAWORLD ENTERTAINMENT: Trial in Anderson Suit Set for Oct. 2019 SECURUS TECH: Robert Teel Appointed Class Counsel in Romero Suit SELECT INCOME: Schwartz Sues over Misleading Report, Merger SEPHORA USA: Sued over Storage of Biometrics Information SERENDIPITY 3: Website not Accessible to Blind, Garey Says SERVICE EMPLOYEES: Oregon Civil Servants Sue Over Union Fees SOLID BIOSCIENCES: Watkins Class Action Voluntarily Dismissed SOUTHSTAR LLC: Thomas Seeks Overtime Pay SPAR GROUP: Appeal in Hogan Suit Pending SPITZER INDUSTRIES: Court Denies Bid to Alter Judgment in Sarabia SUMMIT RETAIL: Modeski Suit Moved to District of Massachusetts SUNPOWER CORP: Court Dismisses Shareholder Derivative Suit SYNERGETIC COMMUNICATION: Dist. Court Dismisses Jones FDCPA Suit TANDEM CORP: Telecommunications Subcontractors File Class Action TANGOE INC: Court Junks Bid to Dismiss Sciabacucchi Suit TECHNIPFMC PLC: Still Defends Prause Shareholder Class Suit TECOGEN INC: Judgment on Pleadings in Vardakas Suit Pending TESLA INC: Inter-Local Pension Fund Sues over Model 3 Production TIGER NATURAL: Court Allows 2nd Amended Answer in Fishman Suit TIGER NATURAL: Ct. Partly OK's Fishman Bid for Discovery Sanctions TIGER NATURAL: Fishman Bid for Class Certification Partly Granted TIVITY HEALTH: Bid to Dismiss Weiner Class Action Suit Ongoing TOTAL SYSTEM: Unit Still Defends Telexfree Securities Litigation TRAFFIC ENGINEERING: Underpays Traffic Control Workers, Suit Says TRINITY HEATING: Womble Bond Attorney Discusses Court Ruling TRUSTMARK CORP: TNB Still Faces Class Suit over Stanford Financial TURTLE BEACH: Shareholders Class Action Trial Set for Nov. 2019 UNIT CORP: Chieftain Royalty Class Suit Ongoing in Oklahoma UNIT CORP: Cockerell Oil Properties Class Action Ongoing UNITED STATES: 9th Cir. Remands Immigrant Bond Hearing Suit UNITED STATES: Class Certification Sought in Case v. Transport Dept VECTRUS INC: Settlement in Employee Suit Gets Final Approval VEREIT INC: Trial in ARCP Litigation to Begin Sept. 2019 VICTOR'S CAFE: Vasquez Seeks Unpaid Wages VISA U.S.A.: Rochin Sues over Multiple Debiting of Bank Accounts VITAL PHARMCEUTICALS: Faces Class Action Over Bang Energy Drinks VIVINT SOLAR: Continues to Defend Power Purchase-Related Class Suit WELLS FARGO: Judge Orders Class to Amend Claims in Consumer Suit WELLS FARGO: Lawsuits over Retail Sales Practices Ongoing WELLS FARGO: Still Defends Automobile Lending Related Suit WELLS FARGO: Still Defends Mortgage Rate Lock Extension Fees Suit WILLIAMS INDUSTRIAL: Budde Plaintiffs Seek Appeal from Nixed Suit ZEBRA TECHNOLOGIES: Class Suit over Symbol Acquisition Concluded ZESTFINANCE INC: Court Stays Titus Suit Pending Appeal ZICAM LLC: Court Approves Stipulation of Settlement in Melgar Suit ZILLOW GROUP: Wins Dismissal of Consolidated Class Action ZOE'S KITCHEN: Continues to Defend Four Class Suits ********* 3M CO: 4,955 Bair Hugger Claims Filed as of Sept. 30 ---------------------------------------------------- 3M Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 25, 2018, for the quarterly period ended September 30, 2018, that as of September 30, 2018, the Company is a named defendant in lawsuits involving approximately 4,955 plaintiffs (compared to approximately 4,270 plaintiffs at December 31, 2017) who allege the Bair Hugger(TM) patient warming system caused a surgical site infection. Nearly all of the lawsuits are pending in federal court in Minnesota. The plaintiffs claim they underwent various joint arthroplasty, cardiovascular, and other surgeries and later developed surgical site infections due to the use of the Bair Hugge(TM) patient warming system (the Bair Hugge(TM) product line was acquired by 3M as part of the 2010 acquisition of Arizant, Inc., a leading manufacturer of patient warming solutions designed to prevent hypothermia and maintain normal body temperature in surgical settings). The complaints seek damages and other relief based on theories of strict liability, negligence, breach of express and implied warranties, failure to warn, design and manufacturing defect, fraudulent and/or negligent misrepresentation/concealment, unjust enrichment, and violations of various state consumer fraud, deceptive or unlawful trade practices and/or false advertising acts. One case, from the U.S. District Court for the Western District of Tennessee is a putative nationwide class action. The U.S. Judicial Panel on Multidistrict Litigation (MDL) granted the plaintiffs' motion to transfer and consolidate all cases pending in federal courts to the U.S. District Court for the District of Minnesota to be managed in a multi-district proceeding during the pre-trial phase of the litigation. In 2017, the U.S. District Court and the Minnesota state courts denied the plaintiffs' motions to amend their complaints to add claims for punitive damages. At a joint hearing before the U.S. District Court and the Minnesota State court, on the parties' motion to exclude each other's experts, and 3M's motion for summary judgment with respect to general causation, the federal court did not exclude the plaintiffs' experts and denied 3M's motion for summary judgment on general causation. In January 2018, the state court, in hearing the same arguments, excluded plaintiffs' experts and granted 3M's motion for summary judgment on general causation, dismissing all 61 cases pending before the state court in Minnesota. Plaintiffs have appealed that ruling and the state court's punitive damages ruling, and oral argument before the Minnesota Court of Appeals is scheduled in November 2018. In April 2018, the federal court partially granted 3M's motion for summary judgment in the first bellwether case, leaving for trial a claim for strict liability based upon design defect. The court dismissed the plaintiff's claims for negligence, failure to warn, and common law and statutory fraud. In the trial of the first bellwether case in May 2018, the jury returned a unanimous verdict in 3M's favor finding that the Bair Hugger(TM) patient warming system was not defective and was not the cause of the plaintiff's injury. 3M Company operates as a diversified technology company worldwide. The company was founded in 1902 and is headquartered in St. Paul, Minnesota. A-S MEDICATION: Court Enters Judgment in TCPA Suit -------------------------------------------------- Judge Matthew F. Kennelly of the U.S. District Court for the Northern District of Illinois, Eastern Division, granted the Plaintiffs' motion for entry of judgment in the case, PHYSICIANS HEALTHSOURCE, INC., individually and as the representative of a class of similarly-situated persons, Plaintiff, v. A-S MEDICATION SOLUTIONS LLC and WALTER HOFF, Defendants, Case No. 12C5105 (N.D. Ill.). The TCPA case involves unsolicited advertisements sent by fax. Physicians Healthsource filed the case in state court in May 2012, and the Defendants removed it to federal court in June 2012. On Sept. 27, 2016, the judge to whom the case was previously assigned certified a Plaintiff class consisting of those who were successfully sent the advertisement between Feb. 10 and Feb. 28, 2010. In mid-October 2017, the case was transferred to Judge Kennelly. On Aug. 21, 2018, the Court granted summary judgment for the Plaintiff class on the question of liability; the class did not move for summary judgment on damages. It concluded that the fax was an unsolicited advertisement within the meaning of the TCPA; the Defendants sent it using a computer; and it was successfully delivered to 11,422 fax numbers. This left only the issue of whether the class would seek treble damages for willful or knowing violations of the TCPA or instead would seek the fixed statutory damages amount of $500 under 47 U.S.C. Section 227(b)(3). The Court set the case for a December trial date on any remaining issues. On Oct. 25, 2018, the Plaintiffs filed a statement saying that they are not seeking damages for willful or knowing violations and are instead seeking the statutory amount of $500 per fax. They then filed a motion for entry of judgment, saying that no issues remain to be tried to the Court. The Plaintiffs request entry of a judgment in the amount of $5,709,000, representing 11,418 violations (4 class members opted out) at $500 per violation, to be paid into the Court's registry as security for payment to the class members. They propose to thereafter submit a petition for attorney's fees, expenses, and an incentive award for the named Plaintiff. Once those matters are adjudicated, the Plaintiffs say, they will submit a plan for distribution, which will involve having a claims administrator send notice to the class members to allow them to turn down the money or provide updated information to facilitate distribution. The Defendants object. They say that before any judgment may be entered, there must be an opportunity for individualized challenges to claims of the purported class members. Specifically, they say that they want to be able to challenge the class members who lack standing or the right to recover. Judge Kennelly finds that there are records, which are not subject to legitimate dispute, showing the names and fax numbers of those to whom the fax at issue in the case was sent. These records served as the basis for sending notice to the members of the class following entry of the class certification order. In short, there is no mystery regarding the identity of the fax recipients/class members; the named recipients are the ones who are entitled to recover damages. No further process to determine the "right" recipients is needed prior to entry of judgment. He also notes that the Defendants did not oppose the Plaintiffs' proposal, approved by the judge to whom the case was previously assigned, to send notice of the pendency of the class action and certification of the class to the persons and entities named on the very same list, and only to them. If they had a legitimate objection that the class actually included more persons than the named recipients, that -- not now -- was the time to assert it. By failing to do so then, the Defendants forfeited the point. But even if they did not, their contention lacks meri. The appropriate procedure, at this point, the Judge finds, is the one specifically approved in Holtzman v. Turza ("Holtzman 1"): entry of a judgment requiring the defendants to pay the statutory damages award of $500 per class member into the Court's registry. The Judge will then determine attorney's fees and expenses, taxable costs, and a proposed incentive award for the named Plaintiff, as well as a plan for distribution of damages-- net of these amounts -- to the class members. He notes in this regard that it is clear that any distribution of fees to the class counsel must be based on funds that are actually distributed, not on the total amount deposited by defendants. The reason is that the TCPA is not a fee-shifting statute. Although the matter of attorney's fees (specifically, the amount) must be determined before distribution, the Judge holds he needs not decide it before entry of judgment. As is the case generally, determination of attorney's fees is collateral to the merits, and is dealt with following entry of judgment. Finally, there is a reasonable likelihood that not all of the class members will actually claim their recovery. The Judge will determine that point when it rules on any proposed plan for distribution or, perhaps, once there is a better idea of how much there is in the way of unclaimed funds. In sum, Judge Kennelly vacated the ruling date of Nov. 28, 2018, and granted the Plaintiffs' motion for entry of judgment. He directed the Clerk is directed to enter judgment in favor of the Plaintiff class and against the Defendants, jointly and severally, in the amount of $5,709,000, and directing the Defendants to deposit that sum into the registry of the Court by no later than Dec. 19, 2018. The Plaintiffs are given until Dec. 19, 2018, to file a petition for attorney's fees and expenses and any request for an incentive award -- all of which will come out of the amount of the judgment as previously stated. Also by Dec. 19, 2018, the Plaintiffs are to file a proposed plan for distribution of any amounts deposited pursuant to the judgment. The only amount recoverable over and above the judgment amount consists of taxable costs under Federal Rule of Civil Procedure 54(d) and 28 U.S.C. Section 1920. Any bill of costs must be filed by Dec. 19, 2018. The case is set for a status hearing on Dec. 20, 2018 at 9:30 a.m., at which time the Court will set a schedule for any further briefing that is appropriate on the matters of attorney's fees and expenses, incentive awards, and taxable costs. A full-text copy of the Court's Dec. 27, 2018 Memorandum Opinion and Order is available at https://is.gd/Za7YwP from Leagle.com. Physicians Healthsource, Inc., an Ohio corporation, individually and as the representative of a class of similarly-situated persons, Plaintiff, represented by Brian J. Wanca -- bwanca@andersonwanca.com -- Anderson & Wanca, Jeffrey Alan Berman -- jberman@andersonwanca.com -- Anderson Wanca, Ross Michael Good -- rgood@andersonwanca.com -- Anderson Wanca, Ryan M. Kelly- rkelly@andersonwanca.com -- Anderson & Wanca & Wallace Cyril Solberg -- wsolberg@andersonwanca.com -- Anderson Wanca. A-S Medication Solutions LLC & Walter Hoff, Defendants, represented by Eric L. Samore -- esamore@salawus.com -- Smith Amundsen LLC, Michael F. Coyle, Fraser Stryker Pc Llc, 409 S 17th St #500, Omaha, NE 68102, USA pro hac vice, Albert M. Bower -- abower@salawus.com -- Smith Amundsen LLC, Robert W. Futhey -- rfuthey@fraserstryker.com -- Fraser Stryker Pc Llo, pro hac vice & Yesha Sutaria Hoeppner -- yhoeppner@salawus.com -- Smithamundsen LLC. Allscripts Healthcare Solutions, Inc. & Allscripts Healthcare, LLC, Movants, represented by Livia McCammon Kiser -- LKISER@SIDLEY.COM -- Sidley Austin LLP. AAC HOLDINGS: Final Judgment Entered in Tennessee Shareholder Suit ------------------------------------------------------------------ AAC Holdings, 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 the court entered an order and final judgment in the consolidated class action suit in the U.S. District Court for the Middle District of Tennessee, consistent with the terms of the parties' Stipulation of Settlement. On August 24, 2015, a shareholder filed a purported class action in the United States District Court for the Middle District of Tennessee against the Company and certain of its current and former officers (Kasper v. AAC Holdings, Inc. et al.). The plaintiff generally alleged that the Company and certain of its current and former officers violated Sections 10(b) and/or 20(a) of the Securities Exchange Act of 1934, as amended, and Rule 10b-5 promulgated thereunder by making allegedly false and/or misleading statements and failing to disclose certain information. On September 14, 2015, a second class action against the same defendants asserting essentially the same allegations was filed in the same court (Tenzyk v. AAC Holdings, Inc. et al.). On October 26, 2015, the court entered an order consolidating these two described actions into one action. On April 14, 2016, the Company and the individual defendants filed a motion to dismiss the complaint for failure to state a claim. On July 1, 2016, the court denied the motion to dismiss. On July 14, 2017, the court granted the plaintiffs' motion for class certification. On December 28, 2017, the parties entered into a settlement term sheet with the plaintiffs' representatives to memorialize an agreement in principle to settle the litigation. On February 15, 2018, the parties entered into a Stipulation of Settlement, consistent with the December 28, 2017 agreement in principle, that provided for defendants' payment of an aggregate settlement amount of $25,000,000 (which includes attorneys' fees to be approved by the court) to establish a settlement fund (the "Settlement Fund"). The Stipulation of Settlement provides that the Settlement Fund was to be funded as follows: (a) defendant Jerrod N. Menz will sell 300,000 shares and contribute the cash derived from such sale(s) to the Settlement Fund; and (b) the Company and individual defendants will pay in cash the difference, if any, between the Settlement Fund and the stock component addressed in (a). The Stipulation of Settlement includes the dismissal of all claims against the Company and the individual defendants, a denial by defendants of any wrongdoing and no admission of liability. On March 7, 2018, the court entered an order preliminarily approving the settlement. On March 23, 2018, the Company paid the full amount of the Settlement Fund and is preserving its claim to recover the 300,000 shares that Jerrod N. Menz was supposed to contribute. On June 11, 2018, the court entered an order and final judgment consistent with the terms of the parties' Stipulation of Settlement. AAC Holdings, Inc. provides inpatient and outpatient substance use treatment services for individuals with drug addiction, alcohol addiction, and co-occurring mental/behavioral health issues in the United States. Its therapy services include motivational interviewing, cognitive behavioral therapy, rational emotive behavior therapy, dialectical behavioral therapy, solution-focused therapy, eye movement desensitization and reprocessing, and systematic family intervention. AAC Holdings, Inc. was founded in 2014 and is headquartered in Brentwood, Tennessee. ABBVIE INC: 3 Law Firms Vie for Lead Class Counsel Role ------------------------------------------------------- Lauraann Wood, writing for Law360, reports that three law firms representing investors suing AbbVie Inc. in a proposed class action over its allegedly illegal strategy to market its blockbuster drug Humira have each asked an Illinois federal judge to lead the suit. [GN] ABERCROMBIE & FITCH: Court Grants Final Approval of Jones Deal -------------------------------------------------------------- The United States District Court for the Central District of California, Western Division, issued a Judgment granting Motion for Final Approval of Class Action Settlement in the case captioned Samantha Jones, Plaintiff, v. Abercrombie & Fitch Trading Co.; Abercrombie & Fitch Stores Inc., Defendants. Case No. CV 15-00105 JGB (Ex). (C.D. Cal.). The Court awards the following: -- Class Counsel attorneys' fees in the amount of $2,400,000; -- Class Counsel costs in the amount of $43,323.69; and -- $10,000.00 to Plaintiffs Jones and Grob. The Court orders the payment of $37,500.00 to the California Labor and Workforce Development Agency and $154,500 to the claims administrator. A full-text copy of the District Court's November 19, 2018 Judgment is available at https://tinyurl.com/yb7plyag from Leagle.com. Samantha Jones, on behalf of herself and all persons similarly situated, Plaintiff, represented by Marc H. Phelps -- marc@phelpslawgroup.com -- The Phelps Law Group, Bianca A. Sofonio -- bianca@carterlawfirm.net -- The Carter Law Firm, Diana M. Khoury -- Ikhoury@ckslaw.com -- Cohelan Khoury and Singer, Isam C. Khoury -- Ikhoury@ckslaw.com -- Cohelan Khoury and Singer, Michael D. Singer -- msinger@ckslaw.com -- Cohelan Khoury and Singer & Roger Richard Carter, The Carter Law Firm. Abercrombie & Fitch Trading Co., an Ohio corporation, Defendant, represented by Mark D. Kemple -- kemplem@gtlaw.com -- Greenberg Traurig LLP & Ryan Christopher Bykerk -- bykerkr@gtlaw.com -- Greenberg Traurig LLP. Abercrombie & Fitch Stores Inc, Defendant, represented by Douglas R. Young -- dyoung@fbm.com -- Farella Braun and Martel LLP, Mark D. Kemple, Greenberg Traurig LLP & Ryan Christopher Bykerk, Greenberg Traurig LLP. AFFINION GROUP: Conn. Court Dismissed CUTPA Claims v. Webloyalty ---------------------------------------------------------------- Affinion Group Holdings, Inc. disclosed in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2018, that the Court in the Webloyalty suit has entered summary judgment for defendants on the Electronic Funds Transfer Act (EFT) claim, declined to exercise supplemental jurisdiction over the Connecticut Unfair Trade Practices Act (CUTPA) claim, and dismissed the CUTPA claim without prejudice. On August 27, 2010, a former member of Webloyalty's membership programs filed a putative class action lawsuit against Webloyalty, one of its former clients, and one of the credit card associations in the United States District Court for the District of Connecticut (the "Connecticut District Court"). The plaintiff alleged that Webloyalty's enrollment of the plaintiff using debit card information obtained from a third party via data pass, and not directly from the plaintiff, was deceptive. The Plaintiff seeks to represent a nationwide class of consumers whose credit or debit card data was transferred to Webloyalty via data pass on or after October 1, 2008. The complaint, which was amended several times, asserted, among others, claims for violations of the Electronic Funds Transfer Act ("EFT"), the ECPA, and CUTPA as well as other common law claims. On October 15, 2015, the Connecticut District Court entered judgment dismissing all claims with prejudice. The plaintiff appealed that judgment to the United States Court of Appeals for the Second Circuit (the "Second Circuit"). On December 20, 2016, the Second Circuit affirmed the District Court of Connecticut's dismissal in part, but reversed and remanded the dismissal of claims against Webloyalty and its former client under CUTPA and the EFT. The defendants have answered the remaining counts of the complaint and denied any liability. The defendants have also filed a motion for judgment on the pleadings on the Plaintiff's CUTPA claim, and for summary judgment on his EFT claim. On October 26, 2018, the Court entered summary judgment for defendants on the EFT claim, declined to exercise supplemental jurisdiction over the CUTPA claim, and dismissed the CUTPA claim without prejudice. The Court also directed the clerk to close the file. Affinion Group, Inc. designs, administers, and fulfills loyalty, customer engagement, and insurance programs and solutions. The company operates through four segments: Global Loyalty, Global Customer Engagement, Insurance Solutions, and Legacy Membership and Package. The company is headquartered in Stamford, Connecticut. Affinion Group, Inc. is a subsidiary of Affinion Group Holdings, Inc. AHDS Bagel: Agapito et al. Suit Transferred to E.D. New York ------------------------------------------------------------ The class action lawsuit captioned ADOLFO PATRICIO AGAPITO AND JOSE FRANCISCO REQUELME PLIEGO, individually and on behalf of others similarly situated, the Plaintiffs, vs. AHDS BAGEL LLC (d/b/a PICK A BAGEL), 1101 BAGEL CORP. (d/b/a PICK A BAGEL), ARIEY NUSSBAUM, AVI SHARABANI and HAIM WYSOKI, the Defendants, Case No.:1:16-cv-08170, was transferred from the U.S. District Court for the Southern District of New York, to the U.S. District Court for the Eastern District of New York (Brooklyn) on Nov 20, 2018. The Eastern District of New York Court Clerk assigned Case No. 1:18-cv-06620-CBA-RLM to the proceeding. The case is assigned to the Hon. Judge Carol Bagley Amon. The suit alleges Defendants denied overtime compensation. AHDS Bagel is in the retail bakeries industry in New York, NY.[BN] Attorneys for Plaintiffs: Joshua S. Androphy, Esq. Marisol Santos, Esq. Paul Hershan, Esq. Michael A. Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 2540 New York, NY 10165 Telephone: (212) 317-1200 Facsimile: (212) 317-1620 E-mail: jandrophy@faillacelaw.com msantos@faillacelaw.com phershan@faillacelaw.com faillace@employmentcompliance.com Attorneys for Defendants: Christopher Robert Travis, Esq. TRAVIS LAW PLLC 1 Penn Plaza, Suite 2430 New York, NY 10119 Telephone: (212) 248-2120 Facsimile: (212) 382-0920 E-mail: crt@ctravislaw.com - and - Lawrence F. Morrison, Esq. MORRISON TENENBAUM PLLC 87 Walker Street, Floor 2 New York, NY 10013 Telephone: (212) 620-0938 Facsimile: (646) 998-1972 E-mail: lmorrison@m-t-law.com - and - Robert L. Kraselnik, Esq. LAW OFFICES OF ROBERT L. KRASELNIK, PLLC 261 Madison Ave., 9th Floor New York, NY 10016 Telephone: (646) 342-2019 Facsimile: (646) 661-1317 robert@kraselnik.com AHDS BAGEL: Patricio Suit Transferred to E.D. New York ------------------------------------------------------ The class action lawsuit captioned MAXIMO PATRICIO, individually and on behalf of others similarly situated, the Plaintiff, vs. AHDS BAGEL LLC (d/b/a PICK A BAGEL), 1101 BAGEL CORP. (d/b/a PICK A BAGEL), ARIEY NUSSBAUM, ISLAM ABBAS (a/k/a SAMMY), and HAIM WYSOKI, the Defendants, Case No. 1:17-cv-04127, was transferred from the U.S. District Court for the Southern District of New York, to the U.S. District Court Eastern District of New York (Brooklyn) on Nov. 20, 2018. The Eastern District of New York Court Clerk assigned Case No. 1:18-cv-06621-AMD-VMS to the proceeding. The case is assigned to the Hon. Judge Ann M. Donnelly. The suit alleges Fair Labor Standards Act violation. AHDS Bagel LLC is in the retail bakeries industry in New York, NY.[BN] Attorneys for Plaintiff: Joshua S. Androphy, Esq. Marisol Santos, Esq. Paul Hershan, Esq. Sara Jacqueline Isaacson, Esq. Michael A. Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 2540 New York, NY 10165 Telephone: (212) 317-1200 Facsimile: (212) 317-1620 E-mail: jandrophy@faillacelaw.com msantos@faillacelaw.com phershan@faillacelaw.com sisaacson@faillacelaw.com faillace@employmentcompliance.com Attorneys for Defendants: Christopher Robert Travis, Esq. TRAVIS LAW PLLC 1 Penn Plaza, Suite 2430 New York, NY 10119 Telephone: (212) 248-2120 Facsimile: (212) 382-0920 E-mail: crt@ctravislaw.com - and - Lawrence F. Morrison, Esq. MORRISON TENENBAUM PLLC 87 Walker Street, Floor 2 New York, NY 10013 Telephone: (212) 620-0938 Facsimile: (646) 998-1972 E-mail: lmorrison@m-t-law.com AKERS BIOSCIENCES: Still Defends Faulkner Class Lawsuit in N.J. --------------------------------------------------------------- Akers Biosciences, Inc. disclosed in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2018, that it continues to defend itself in the class action suit styled Faulkner v. Akers Biosciences, Inc., No. 2:18-cv-10521 (D.N.J.). On June 13, 2018, Plaintiff Tim Faulkner filed a class action complaint alleging securities violations against Akers Biosciences, Inc. ("Akers"), John J. Gormally, and Gary M. Rauch ("Individual Defendants") (together with Akers, "Defendants") on behalf of all persons and entities who purchased publicly traded Akers securities from May 15, 2017 through June 5, 2018. The complaint alleges violations of Section 10(b) of the Exchange Act and Rule 10b-5 against all Defendants, and violations of Section 20(a) of the Exchange Act against the Individual Defendants. In particular, the complaint alleges that Defendants made false and/or misleading statements and/or failed to disclose in its first, second, and third quarter 2017 10-Qs and its 2017 10-K that: (1) Akers was improperly recognizing revenue for the fiscal year ended December 31, 2017; and, (2) Akers had downplayed weaknesses in its internal controls over financial reporting and failed to disclose the true extent of those weaknesses. On July 10, 2018, Plaintiff and Defendants entered into a stipulation that Defendants are not required to respond to the complaint until the court appoints a lead plaintiff and lead counsel for the class, and then after the lead plaintiff chooses whether to file an amended complaint or whether to designate the complaint as the operative complaint. Akers Bio develops, manufactures, and supplies rapid, point-of-care screening and testing products designed to bring health-related information directly to the patient or clinician in a timely and cost-efficient manner. The company is based in Thorofare, New Jersey. AKERS BIOSCIENCES: Still Faces Gleason Class Action in N.J. ----------------------------------------------------------- Akers Biosciences, Inc. disclosed in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2018, that it remains a defendant in the class action styled Gleason v. Akers Biosciences, Inc., No. 2:18-cv-10805 (D.N.J.). On June 20, 2018, Plaintiff David Gleason filed a class action complaint alleging securities violations against Akers Biosciences, Inc. ("Akers"), John J. Gormally, and Gary M. Rauch ("Individual Defendants") (together with Akers, "Defendants") on behalf of all persons and entities who purchased publicly traded Akers securities from May 15, 2017 through June 5, 2018. The complaint alleges violations of Section 10(b) of the Exchange Act and Rule 10b-5 against all Defendants, and violations of Section 20(a) of the Exchange Act against the Individual Defendants. In particular, the complaint alleges that Defendants made false and/or misleading statements and/or failed to disclose in its first, second, and third quarter 2017 10-Qs and its 2017 10-K that: (1) Akers was improperly recognizing revenue for the fiscal year ended December 31, 2017; and, (2) Akers had downplayed weaknesses in its internal controls over financial reporting and failed to disclose the true extent of those weaknesses. No Defendant has been served yet, and no response is due at this time. Akers Bio develops, manufactures, and supplies rapid, point-of-care screening and testing products designed to bring health-related information directly to the patient or clinician in a timely and cost-efficient manner. The company is based in Thorofare, New Jersey. AKORN INC: Continues to Defend Joshi Living Trust Class Suit ------------------------------------------------------------ Akorn, 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 the company continues to defend a putative class action suit entitled, Joshi Living Trust v. Akorn, Inc. et al. On March 8, 2018, a purported shareholder of the Company filed a putative class action complaint entitled Joshi Living Trust v. Akorn, Inc. et al., in the United States District Court for the Northern District of Illinois alleging violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. The complaint names as defendants the Company, Chief Executive Officer Rajat Rai, Chief Financial Officer Duane Portwood and Chief Accounting Officer Randall Pollard. The complaint alleges that defendants made materially false or misleading statements and/or material omissions by failing to disclose sooner the existence of investigations into data integrity at the Company. The Complaint seeks, among other things, an award of damages, attorneys' fees and expenses. The Company disputes these claims. On May 24, 2018, the Court ordered that the lead plaintiff file an amended complaint not later than September 5, 2018, that defendants respond to the amended complaint by November 5, 2018. On May 31, 2018, the Court issued an order appointing Gabelli & Co. Investment Advisors, Inc. and Gabelli Funds, LLC as lead plaintiffs pursuant to the Private Securities Litigation Reform Act ("PSLRA"), and approving their selection of lead counsel and liaison counsel. On June 14, 2018, lead plaintiffs filed a motion to lift the PSLRA stay of discovery. On June 22, 2018, the Company filed a memorandum in opposition to the motion to lift the PSLRA stay. On June 26, 2018, the Court denied the motion to lift the PSLRA stay, subject to entry of a preservation order. On September 5, 2018, lead plaintiffs filed an amended complaint. Defendants' deadline to respond to the amended complaint is November 5, 2018. Akorn, Inc., a specialty generic pharmaceutical company, develops, manufactures, and markets generic and branded prescription pharmaceuticals, over-the-counter (OTC) consumer health products, and animal health pharmaceuticals in the United States and internationally. The company operates in two segments, Prescription Pharmaceuticals and Consumer Health. The company was founded in 1971 and is headquartered in Lake Forest, Illinois. ALABAMA: Ct. Reverses Certification of Individual-Capacities Claims ------------------------------------------------------------------- Judge Lyn Stuart of the Supreme Court of Alabama affirmed in part and reversed in part the Madison Circuit Court's order certifying the class in the case, Deborah Barnhart, Brooke Balch, and Vickie Henderson, individually and in their official capacities as officers of the Alabama Space Science Exhibit Commission, v. Janice Ingalls, Milton Parker, and Kamara Bowling Davis, Case No. 1170253 (Ala.). Barnhart, Balch, and Henderson, current and former officers of the Alabama Space Science Exhibit Commission, petition the Court for a writ of mandamus directing the Madison Circuit Court to dismiss the claims asserted against them in the class action or, in the alternative, to vacate its order certifying those claims for class-action treatment. The Commission was created as a State agency in 1965 by the Alabama Legislature to provide for and manage facilities to house and display such visual exhibits of space exploration and hardware used therefor as may be made available by the National Aeronautics and Space Administration. In accordance with that purpose, the Commission opened the U.S. Space & Rocket Center in March 1970 and, since that time, has continued to operate the popular museum and learning center in Huntsville. At the time the action was initiated, the Commission employed approximately 120 individuals at the Rocket Center. The Commission is required by law to maintain records of its revenue and expenditures and to periodically make those records available for audit by the Department of Examiners of Public Accounts ("DEPA"). During the summer of 2013, DEPA conducted a financial and compliance audit of the Commission's records for the period spanning October 2007 through September 2012. In October 2013, DEPA representatives met with certain Commission representatives -- including Barnhart, the CEO, and Balch, the VP of finance -- to discuss the findings of the audit. Among those findings were the conclusions that the Commission had not complied with Alabama law (1) in its payment of annual longevity bonuses to Commission employees and (2) in the manner it compensated Commission employees for working on certain State holidays. DEPA concluded that the Commission had not been complying with Section 36-6-11(a) inasmuch as it had not increased the annual longevity bonuses paid to Commission employees in those years in which the Commission employees did not receive cost-of-living raises, and it accordingly recommended that the Commission re-compute longevity pay for each employee for all years in which they were qualified to receive longevity pay for reason of not having received a cost of living pay increase and the Commission should pay the employees the total amount ofall underpayments due them. With regard to the compensation of Commission employees who worked on State holidays, DEPA noted Section 1-3-8, Ala. Code 1975 and Subsection 1-3-8(e). In practice, however, the Commission observed only seven of the State holidays, and DEPA accordingly deemed the Commission to be out of compliance with Section 1-3-8. To become compliant, DEPA recommended that the Commission observe all the holidays enumerated in Section 1-3-8 and that it begin providing compensatory leave or appropriate paid compensation to employees working on those holidays. In January 2014, DEPA released the Commission audit to the public, at which time Commission employees became aware of the findings regarding their benefits. The Commission representatives, including Barnhart and Henderson, the vice president of human resources, thereafter held a meeting open to all Commission employees at which they stated that they had reviewed the audit and that they disagreed with its findings but that any changes that were required would be made. No changes were made, however, and on Oct. 16, 2015, several former Commission employees sued the Commission and the Commission officers, alleging that the plaintiffs, as well as other past and present Commission employees, had not received all the compensation to which they were entitled during their tenures as Commission employees. The instant action was initially filed in the Montgomery Circuit Court but was subsequently transferred to the Madison Circuit Court. As amended on March 10, 2017, the complaint filed by the former employees of the Commission alleged that they had not been paid the amount of longevity bonuses to which they were entitled when they were Commission employees and that they had not been properly compensated for working on State holidays that were not observed at the Rocket Center. The named Plaintiffs accordingly asserted claims against the Commission officers in their official capacities seeking (1) a judgment declaring that the Commission's existing policies and compensation plan did not comply with the plain terms of the benefits statutes ("declaratory-relief claim"); (2) an injunction requiring the Commission officers to henceforth comply with those statutes ("prospective-relief claim"); and (3) an award ofall moneys previously earned but not paid because of the failure to comply with the benefits statutes ("retrospective-relief claim"). They also asserted negligence/wantonness and breach-of-fiduciary-duty claims against the Commission officers in their individual capacities ("individual-capacities claims"). As directed by the trial court, the parties engaged in discovery related solely to the issue of class certification, and, on June 23, 2017, the named Plaintiffs formally moved for class certification of their claims. The Commission officers opposed that motion, arguing that class certification was inappropriate, while also moving the trial court to enter a summary judgment in their favor on immunity, standing, and statute-of-limitations grounds. The trial court initially scheduled a hearing on the class-certification and summary-judgment motions for the same day; however, after the named Plaintiffs objected to the trial court's considering the Commission officers' "merit-based defenses" before ruling on their motion for class certification, the trial court instructed the parties that it would not consider the Commission officers' summary-judgment motion until the class-certification issue was decided. On Nov. 17, 2017, the trial court partially granted the named Plaintiffs' motion for class certification. Specifically, the trial court certified for class-action treatment (1) the declaratory-relief claim; (2) the retrospective-relief claim; and (3) the individual-capacities claims. It declined, however, to certify the prospective-relief claim because none of the named Plaintiffs were current employees of the Commission and because they might, to the detriment of current Commission employees, accordingly be motivated to focus on recovering past damages as opposed to obtaining prospective injunctive relief that would not directly benefit them. On Dec. 27, 2017, the Commission officers petitioned the Court for a writ of mandamus directing the trial court to vacate its order certifying the class and to instead enter an order in favor of the Commission officers dismissing the named Plaintiffs' claims. On March 21, 2018, the Court stayed proceedings in the trial court pending a final decision on the Commission officers' petition and ordered the named Plaintiffs to file an answer to the Commission officers' arguments. Judge Stuart finds that the named Plaintiffs' retrospective-relief claim is not barred by Section 14. Ifit is ultimately determined that the named Plaintiffs should have received additional compensation pursuant to the benefit statutes, the Commission officers had a legal duty to make those payments all along, and in finally doing so they are merely performing a ministerial act. Next, the Judge finds that it is clear from the named Plaintiffs' statement of their individual-capacities claims that the duties allegedly breached by the Commission officers were owed to the putative class members only because of the positions the Commission officers held and that the Commission officers were, accordingly, acting only in their official capacities when they allegedly breached those duties by failing to give effect to the benefit statutes. Accordingly, the individual-capacities claims are, in effect, claims against the State that are barred by Section 14. The nature of the individual-capacities claims requires this holding, and any previous decisions of the Court containing language indicating that the State immunity afforded by Section 14 cannot apply when monetary damages are being sought from State officers in their individual capacities are overruled to the extent they support that proposition. The Judge then finds that although it is true that the named Plaintiffs would receive no benefit from an injunction requiring the Commission to henceforth abide by the benefits statutes because they no longer work for the Commission, they would benefit from a declaration that the Commission is bound by the benefits statutes because only then can they prevail on their retrospective-relief claim. The named Plaintiffs accordingly have a concrete stake in the declaratory-relief claim and standing to pursue it, and they have established that they can adequately represent the interests of other class members, whether current or former employees of the Commission, with regard to the retrospective-relief claim and the declaratory-relief claim. She further finds that the trial court did not exceed its discretion in concluding that the named Plaintiffs met the requirements of Rule 23(a) and Rule 23(b). Accordingly, in the absence of any specific argument that might indicate the trial court erred, the Judge affirms the trial court's certification of the retrospective-relief claim pursuant to Rule 23(b)(3). Finally, the Judge finds the Commission officers have not established that the named Plaintiffs' retrospective-relief and declaratory-relief claims are barred by the doctrine of State immunity set forth in Section 14, and the trial court did not err by not dismissing those claims for a lack of subject-matter jurisdiction. However, the individual-capacities claims are barred by Section 14 inasmuch as those claims are essentially claims against the State regardless of the manner in which they have been asserted, and the trial court accordingly erred by not dismissing those claims for lack of subject-matter jurisdiction. For these reasons, Judge Stuart reversed the trial court's order certifying the action for class treatment insofar as it certified the individual-capacities claims; and affirmed in all other respects it is affirmed. The case is remanded for proceedings consistent with her Opinion. A full-text copy of the Court's Nov. 21, 2018 Opinion is available at https://is.gd/16LUD0 from Leagle.com. ALIGN TECHNOLOGY: Lu Sues over Share Price Drop ----------------------------------------------- XIAOJIAO LU, Individually and On Behalf of All Others Similarly Situated, the Plaintiff, vs. ALIGN TECHNOLOGY, INC., JOSEPH M. HOGAN, JOHN F. MORICI, and RAPHAEL S. PASCAUD, the Defendants, Case No. 5:18-cv-06720-LHK (N.D. Cal.), seeks to pursue remedies under the Securities Exchange Act of 1934. According to the complaint, the case is a class action on behalf of persons and entities that purchased or otherwise acquired Align securities between July 25, 2018 and October 24, 2018, inclusive. On October 24, 2018, the Company announced its third quarter 2018 financial results and reported that its Invisalign Average Selling Price had declined from $1,315 to $1,230. The same day, the Company also announced that its Chief Marketing Officer would "reduce his responsibilities and transition to a part-time position." On this news, the Company's share price fell $58.76 per share, more than 20%, to 23 close at $232.07 per share on October 25, 2018, on unusually high trading volume. The share price continued to decline over the next two trading sessions, to close at $217.94 on October 29, 2018. The Defendants made materially false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, Defendants failed to disclose to investors: (1) that the Company would offer higher discounts to promote Invisalign; (2) that the promotions would materially impact revenue; and (3) that, as a result of the foregoing, Defendants' positive statements about the Company's business, operations, and prospects, were materially misleading and/or lacked a reasonable basis. As a result of Defendants' wrongful acts and omissions, and the precipitous decline in the market value of the Company's securities, Plaintiff and other Class members have suffered significant losses and damages. Align is a medical device company that purports to design, manufacture, and market products for the treatment of malocclusion or the misalignment of teeth. Invisalign is the proprietary name for the Company's clear aligners.[BN] Counsel for Plaintiff: Lionel Z. Glancy, esq. Robert V. Prongay, esq. Lesley F. Portnoy, esq. Charles H. Linehan, esq. GLANCY PRONGAY & MURRAY LLP 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 Telephone: (310) 201-9150 Facsimile: (310) 201-9160 E-mail: rprongay@glancylaw.com ALLTRAN EDUCATION: Proctor Sues over Debt Collection Practices -------------------------------------------------------------- JASMINE PROCTOR, individually and on behalf of all others similarly situated, the Plaintiff, vs. ALLTRAN EDUCATION, INC. and JOHN DOES 1-25, the Defendant(s), Case: 1:18-cv-07720 (N.D. Ill., Nov. 20, 2018), seeks to recover damages and declaratory relief under the Fair Debt Collection Practices Act. According to the complaint, some time prior to January 2, 2018, an obligation was allegedly incurred to Apollo Education Group. The Apollo obligation arose out of alleged educational services provided to Plaintiff. Thus, the alleged debt arising from these educational services was incurred by Plaintiff primarily for personal, family or household purposes. The alleged Apollo obligation is a "debt" as defined by 15 U.S.C. section 1692a(5). Apollo Education Group is a "creditor" as defined by 15 U.S.C. section 1692a(4). Apollo or a subsequent owner of the Apollo debt contracted with the Defendant to collect the alleged debt. The Defendant collects and attempts to collect debts incurred or alleged to have been incurred for personal, family or household purposes on behalf of creditors using the United States Postal Services, telephone and internet, the lawsuit says. Alltran Education is doing business in accounts receivable management industry.[BN] Attorneys for Plaintiff: 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 ALTICE USA: Faces O'Neill Securities Suit over IPO, Fin'l Report ---------------------------------------------------------------- O'NEILL, ANDREW , INDIVIDUALLY AND ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, the Plaintiff. Vs ALTICE USA, INC., ALTICE EUROPE N.V. (f/k/a ALTICE N.V.), PATRICK DRAHI, JEREMIE JEAN BONNIN, ABDELHAKIM BOUBAZINE, MICHEL COMBES, DAVID P. CONNOLLY, DEXTER G. GOEI, VICTORIA M. MINK, MARK CHRISTOPHER MULLEN, DENNIS OKHUIJSEN, LISA ROSENBLUM, CHARLES F. STEWART, RAYMOND SVIDER, GOLDMAN SACHS & CO. LLC, J.P. MORGAN SECURITIES LLC, MORGAN STANLEY & CO. LLC, CITIGROUP GLOBAL MARKETS INC., MERRILL LYNCH, PIERCE, FENNER & SMITH, INC., BARCLAYS CAPITAL INC., BNP PARIBAS SECURITIES CORP., CREDIT AGRICOLE SECURITIES (USA) INC., DEUTSCHE BANK SECURITIES INC., RBC CAPITAL MARKETS, LLC, SCOTIA CAPITAL (USA) LLC, SG AMERICAS SECURITIES LLC, and TD SECURITIES (USA) LLC, the Defendants, Case No. 711788/2018 (NY Sup. Ct., Queens County), asserts strict-liability, non-fraud claims under sections 11, 12, and 15 of the Securities Act of 1933 against Altice USA, its former controlling parent Altice N.V, certain current and former officers and directors of Altice USA and the former Altice N.V., and the underwriters of the initial public offering. According to the complaint, Altice USA is a broadband communications provider and, until approximately June 8, 2018, was the United States subsidiary of Altice N.V., a Netherlands-based multinational telecommunications company founded and controlled by Defendant Patrick Drahi. Altice USA and Altice N.V. were interdependent. They shared officers and directors. They jointly reported respective quarterly and yearly financial results. They jointly conducted earnings calls with analysts. Altice USA was majority-owned and controlled by Altice N.V. and Defendant Drahi; in turn, Altice N.V. was majority-owned and controlled by Defendant Drahi. Through related shell entities, Altice N.V. and Defendant Drahi owned 75.2% of Altice USA's issued and outstanding shares of common stock and held 98.5% of the voting power of Altice USA's outstanding capital stock. Indeed, Altice USA admitted its dependence on Altice N.V.; for example, claiming: “Our ability to attract and retain customers depends, in part, upon the external perceptions of Altice Group’s reputation, the quality of its products and its corporate and management integrity. In June 2017, Defendants commenced the Altice USA IPO, issuing over 71 million shares of Altice USA common stock to the investing public at $30 per share, all pursuant to the Registration Statement. The Offering Documents contained untrue statements of material fact and omitted to state material facts both required by governing regulations and necessary to make the statements made not misleading. The Offering Documents were replete with references to Altice USA's relationship to Altice N.V. as one of its "competitive strengths." They claimed Altice USA would "benefit from being part of an international media and communications group," that its "management team operates in a coordinated fashion with Altice N.V.'s management team," both "driven at all levels by the 'Altice Way'—[a] founder-inspired owner-operator culture and strategy of operational efficiency, innovation and long-term value creation for stockholders," and that Altice USA's "management team benefits from Altice Group's experience in implementing the Altice Way around the world." According to the complaint, the foregoing statements were false and misleading because, far from the touted "competitive advantage," Altice N.V. was, in truth, suffering severe customer attrition in its most important markets, France and Portugal, as a direct result of mismanaged price increases and shoddy network and customer support, all of which was having a materially negative impact Altice N.V.'s revenues, margins, and market share. The Offering Documents were false and misleading because they contained material omissions.[BN] Attorneys for Plaintiff: Thomas L. Laughlin, IV Rhiana L. Swartz SCOTT+SCOTT ATTORNEYS AT LAW LLP The Helmsley Building 230 Park Avenue, 17th Floor New York, NY10169 Telephone: (212) 233-6444 Facsimile: (212) 233-6334 E-mail: tlaughlin@scott-scott.com rswartz@scott-scott.com ALTICE USA: Jan. 18 Lead Plaintiff Motion Deadline Set ------------------------------------------------------ Bragar Eagel & Squire, P.C. on Nov. 19 disclosed that a class action lawsuit has been filed in the U.S. District Court for the Eastern District of New York on behalf of all persons or entities who purchased or otherwise acquired Altice USA, Inc. (NYSE: ATUS) shares pursuant to and/or traceable to Altice's Initial Public Offering ("IPO") on or about June 22, 2018. Investors have until January 18, 2019 to apply to the Court to be appointed as lead plaintiff in the lawsuit. The complaint alleges that the offering documents issued pursuant to the IPO failed to disclose and/or misstated material information, including that: (1) "The Altice Way" proprietary growth model previously developed in Europe and described in the offering documents as a means to achieve superior margin performance was falsely touting Altice's capacity to face already existing highly competitive environments and ever-changing consumer behaviors, (2) Altice was suffering from aggressively growing competition both in Europe and the United States, directly causing negative and decelerating revenue and EBITDA growth and impacting Altice's market share, (3) specifically, Altice was suffering from mismanaged rate events, regulatory compliance and poorly managed network and customer care both in its France and Portugal segments, thereby impacting its customer base and churn rate, (4) Altice USA could not simply replicate the "The Altice Way" in the U.S. and (5) as a result, Altice USA's offering documents were materially misleading at all relevant times. If you purchased or otherwise acquired Altice shares pursuant to and/or traceable to the IPO and suffered a loss, have information, would like to learn more about these claims, or have any questions concerning this announcement or your rights or interests with respect to these matters, please contact Brandon Walker or Melissa Fortunato by email at investigations@bespc.com, or telephone at (212) 355-4648, or by filling out this contact form. There is no cost or obligation to you. Bragar Eagel & Squire, P.C. -- http://www.bespc.com-- is a New York-based law firm concentrating in commercial and securities litigation. [GN] AMERICAN FINANCE: Appeal in Maryland Class Action Still Pending --------------------------------------------------------------- American Finance Trust, 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 the plaintiffs in the Maryland putative class action suit have filed a notice of appeal of the court's order, which appeal is still pending. On January 13, 2017, four affiliated stockholders of Retail Centers of America, Inc. (RCA) filed in the United States District Court for the District of Maryland a putative class action lawsuit against RCA, the Company, Edward M. Weil, Jr., Leslie D. Michelson, Edward G. Rendell (Weil, Michelson and Rendell, the "Director Defendants"), and AR Global, alleging violations of Sections 14(a) of the Securities Exchange Act of 1934 (the "Exchange Act") by RCA and the Director Defendants, violations of Section 20(a) of the Exchange Act by AR Global and the Director Defendants, breaches of fiduciary duty by the Director Defendants, and aiding and abetting breaches of fiduciary duty by AR Global and the Company in connection with the negotiation of and proxy solicitation for a shareholder vote on the proposed merger of the Company and RCA and an amendment to RCA's charter. The complaint sought on behalf of the putative class rescission of the merger transaction, which was voted on and approved by stockholders on February 13, 2017, and closed on February 16, 2017, together with unspecified rescissory damages, unspecified actual damages, and costs and disbursements of the action. On April 26, 2017, the Court appointed a lead plaintiff. Lead plaintiff, along with other stockholders of RCA, filed an amended complaint on June 19, 2017. The amended complaint named additional individuals and entities as defendants (David Gong, Stanley Perla, Lisa Kabnick ("Additional Director Defendants"), Nicholas Radesca and the RCA Advisor), added counts under Sections 11, 12(a)(2) and 15 of the Securities Act of 1933, as amended (the "Securities Act") in connection with the Registration Statement for the proposed merger, under Section 13(e) of the Exchange Act, and counts for breach of contract and unjust enrichment. The Company, RCA, the Director Defendants, the Additional Director Defendants and Nicholas Radesca deny wrongdoing and liability and intend to vigorously defend the action. On August 14, 2017, defendants moved to dismiss the amended complaint. On March 29, 2018, the Court granted defendants' motion to dismiss and dismissed the amended complaint. On April 26, 2018, the plaintiffs filed a notice of appeal of the court's order, which appeal is pending. American Finance said, "Due to the early stage of the litigation, no estimate of a probable loss or any reasonable possible losses are determinable at this time. No provisions for such losses have been recorded in the accompanying consolidated financial statements for the nine months ended September 30, 2018 or the year ended December 31, 2017." No further updates were provided in the Company's SEC report. American Finance Trust, Inc. is a publicly traded real estate investment trust listed on the Nasdaq focused on acquiring and managing a diversified portfolio of primarily service-oriented and traditional retail and distribution related commercial real estate properties in the U.S. AMERICAN FINANCE: Faces Hibbard Securities Class Suit ----------------------------------------------------- American Finance Trust, 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 the company faces a putative class action suit filed by Terry Hibbard, a purported stockholder of the Company. On October 26, 2018, Terry Hibbard, a purported stockholder of the Company, filed a putative class action complaint in New York State Supreme Court, New York County, against the Company, AR Global, the Advisor, Nicholas S. Schorsch, William M. Kahane, Edward M. Weil, Jr., Nicholas Radesca, David Gong, Stanley R. Perla, and Lisa D. Kabnick. The complaint alleges that the registration statement pursuant to which Retail Centers of America, Inc. (RCA) shareholders acquired shares of the Company during the Merger contained materially incomplete and misleading information. The complaint asserts violations of Section 11 of the Securities Act against Messrs. Weil, Radesca, Gong, and Perla, and Ms. Kabnick, violations of Section 12(a)(2) of the Securities Act against the Company and Mr. Weil, and control person liability against the Advisor, AR Global, and Messrs. Schorsch and Kahane under Section 15 of the Securities Act. The complaint seeks unspecified damages and rescission of the Company's sale of stock pursuant to the registration statement. American Finance said, "The Company believes the complaint is without merit and intends to defend vigorously. The Company has not yet answered or moved to dismiss the complaint. Due to the early stage of the litigation, no estimate of a probable loss or any reasonably possible losses are determinable at this time." American Finance Trust, Inc. is a publicly traded real estate investment trust listed on the Nasdaq focused on acquiring and managing a diversified portfolio of primarily service-oriented and traditional retail and distribution related commercial real estate properties in the U.S. AMN SERVICES: Cal. App. Affirms Summary Judgment in Donohue Suit ---------------------------------------------------------------- In the case, KENNEDY DONOHUE, Plaintiff and Appellant, v. AMN SERVICES, LLC, Defendant and Respondent, Case No. D071865 (Cal. App.), Judge Joan Kathleen Irion of the Court of Appeals of California for the Fourth District, Division One, affirmed the trial court's order (i) granting a motion for summary judgment brought by AMN, and (ii) denying the Plaintiffs' motions for summary adjudication of one cause of action and one affirmative defense. AMN, a healthcare services and staffing company, recruits nurses for temporary contract assignments. AMN employed Donohue as a nurse recruiter in its San Diego office between September 2012 and February 2014. Donohue earned a base hourly rate plus commissions, bonuses, and other forms of nondiscretionary performance-based pay. Donohue filed the underlying wage and hour action in April 2014. The operative second amended complaint, filed on behalf of Donohue individually and a class of similarly situated AMN employees and former employees, contains allegations in support of the following seven causes of action: (1) failure to provide meal and rest periods in violation of sections 226.7 and 1197.1; (2) failure to pay overtime and minimum wage in violation of sections 510 and 1197.1; (3) improper wage statements in violation of section 226; (4) unreimbursed business expenses in violation of section 2802; (5) waiting time penalties in violation of sections 201-203; (6) unfair business practices in violation of Business and Professions Code section 17200; and (7) civil penalties authorized by the Labor Code Private Attorneys General Act of 2004. In October 2015, the trial court certified five classes of nonexempt AMN employees with the title of "Recruiter": (1) the overtime class; (2) the meal period class; (3) the rest period policy class; (4) the itemized wage statement class; and (5) the ex-employee class (of former AMN employees who are entitled to relief based on violations proven to the four prior classes of current AMN employees). The court denied class certification to Donohue's claims related to unreimbursed business expenses, which were based on an employee's use of a personal cell phone for AMN business. Almost a year later, in September 2016, the parties filed cross-motions: AMN sought summary judgment, or in the alternative, summary adjudication of eight individual issues (which, if granted as to each issue, would result in summary judgment);8 and Donohue sought summary adjudication of two issues. AMN and Donohue filed numerous pleadings in support of their respective motions; AMN and Donohue filed numerous pleadings in opposition to their adversary's motion; AMN and Donohue filed replies to their adversary's oppositions; AMN and Donohue filed objections to specified evidence submitted by their adversary; and AMN and Donohue responded to the evidentiary objections of their adversary. Following oral argument, the court took the matter under submission, ultimately granting AMN's motion for summary judgment and denying Donohue's motion for summary adjudication. More specifically, the court sustained certain evidentiary objections, overruled other evidentiary objections, granted summary adjudication of all eight issues in AMN's motion -- thereby resulting in the grant of summary judgment -- and denied summary adjudication of the two issues raised in Donohue's motion. In December 2016, Donohue filed a motion for reconsideration of the order granting AMN's motion for summary judgment and denying the Donohue's motion for summary adjudication. Two days later, on Dec. 14, 2016, the trial court filed its judgment in favor of AMN and against Donohue, based on the grant of AMN's motion for summary judgment and the denial of Donohue's motion for summary adjudication. In January 2017, Donohue filed an ex parte application for an order striking the filing of the judgment (so that the court could hear her pending motion for reconsideration of the order granting AMN's motion for summary judgment and denying Donohue's motion for summary adjudication) and allowing her to file a supplemental brief in support of her motion for reconsideration. The court denied the application and "vacated" Donohue's pending motion for reconsideration. Donohue timely appealed from the judgment in February 2017. In her appeal from the judgment, Donohue challenges the grant of AMN's motion for summary judgment and the denial of her motion for summary adjudication of one of the causes of action. On appeal, she also challenges what she characterizes as the trial court's failure to hear a proper motion for reconsideration of the summary judgment and summary adjudication rulings. Judge Irion finds that (i) the Court lacks jurisdiction to consider the January 2017 postjudgment order and expresses no opinion on the merits of the ruling(s) in the order; (ii) the trial court did not err in ruling that, for purposes of the cross-motions, AMN's rounding policy complies with California law; (iii) the trial court did not err in deciding issues related to the meal period claims; (iv) the trial court did not err in summarily adjudicating Donohue's wage statement claim in favor of AMN; (v) the trial court did not err in summarily adjudicating Donohue's overtime claim in favor of AMN; (vi) the trial court did not err in summarily adjudicating Donohue's rest period claim in favor of AMN; (vii) the trial court did not err in summarily adjudicating Donohue's PAGA claim in favor of AMN; (viii) the trial court did not abuse its discretion in sustaining AMN's evidentiary objections to certain of Donohue's evidence; and (ix) Donohue did not retain her individual claims. The Judge concludes that the Court lacks jurisdiction to review the postjudgment order that resulted in the trial court's decision not to hear Donohue's motion for reconsideration, and in their de novo review of the summary judgment and summary adjudication rulings, she concludes that Donohue did not meet her burden of establishing reversible error. Accordingly, she affirmed affirmed the judgment. AMN is entitled to its costs on appeal. A full-text copy of the Court's Nov. 21, 2018 Order is available at https://is.gd/uobRIO from Leagle.com. Sullivan Law Group, William B. Sullivan, Eric K. Yaeckel and Clint S. Engleson -- clint.engleson@ogletree.com -- for Plaintiff and Appellant. DLA Piper, Mary Dollarhide -- mary.dollarhide@dlapiper.com -- and Betsey Boutelle -- betsey.boutelle@dlapiper.com -- for Defendant and Respondent. AMPIO PHARMA: 2 Putative Securities Class Suits Underway -------------------------------------------------------- Ampio Pharmaceuticals, Inc. is defending itself against two putative class action lawsuits in the United States District Court for the Central District of California, 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. On August 25, 2018 and August 31, 2018, two purported stockholders of the Company brought putative class action lawsuits in the United States District Court for the Central District of California, Shi v. Ampio Pharmaceuticals, Inc., et al., Case No. 2:18-cv-07476-SJO-RAO, and in the United States District Court for the District of Colorado, Shaffer v. Ampio Pharmaceuticals, Inc., et al., Case No. 1:18-cv-02252-KLM (the "Securities Class Actions"). Plaintiffs in the Securities Class Actions allege that the Company and certain of its current officers violated federal securities laws by misrepresenting and/or omitting information regarding the AP-003 Phase III clinical trials of Ampion. Plaintiffs in the Securities Class Actions assert claims under Sections 10(b) and 20(a) and Rule 10b-5 under the Securities Exchange Act of 1934, as amended (the "Exchange Act") on behalf of a putative class of purchasers of the Company's common stock from December 14, 2017 through August 7, 2018. The Securities Class Actions seek unspecified damages, pre-judgment and post-judgment interest, and attorneys' fees and costs. Ampio Pharmaceuticals, Inc., is a biopharmaceutical company focused primarily on developing compounds that decrease inflammation by (i) inhibiting specific pro-inflammatory compounds by affecting specific pathways at the protein expression and at the transcription level; (ii) activating specific phosphatase or depleting available phosphate needed for the inflammation process; and (iii) decreasing vascular permeability. ATRIUM HEALTH: Employees File ERISA Class Action Over 401(k) Plan ----------------------------------------------------------------- WSOCTV reports that a lawsuit against Charlotte's largest employer could involve thousands of local workers. The suit claims Atrium Health incorrectly acted as a government agency and underfunded pensions by $379 million. "If you're basing your retirement, your life, based upon what you think you're going to get for a retirement check and then you retire and all of a sudden you're getting half of it, it can be pretty devastating," said Karen L. Handorf, an attorney for the plaintiffs. The suit also claims atrium failed to operate the 401(k) plan in accordance with the Employee Retirement Income Security Act and that Atrium employees paid more for health care plan co-pays and deductibles than they could have. Atrium has 65,000 employees. The suit seeks class-action status, which would open it up to all of them, as well as former employees. A spokesperson for the health care system said Atrium Health has not yet been officially served with the complaint but that when they are, officials will review it and file a response with the court. [GN] ATRIUM HEALTH: Plan Doesn't Comply with ERISA, Shore et al. Say --------------------------------------------------------------- DELLA SHORE, LISA ENGEL, MARK RACZ, MICHAEL SCHWOB, AND LYDIA WALKER, on behalf of themselves, individually, and on behalf of all others similarly situated, and on behalf of the Atrium Plans, the Plaintiffs, vs. THE CHARLOTTE-MECKLENBURG HOSPITAL AUTHORITY (D/B/A Atrium f/k/a CAROLINAS HEALTHCARE SYSTEM, a North Carolina Non-profit Corporation, ATRIUM HEALTH RETIREMENT COMMITTEE, JOHN and JANE DOES 1-20, MEMBERS OF THE ATRIUM HEALTH RETIREMENT COMMITTEE, each an individual, MEDCOST LLC, and MEDCOST BENEFIT SERVICES, LLC, the Defendants, Case No. 1:18-cv-00961 (M.D.N.C., Nov. 19, 2018), alleges that Atrium does not currently and has never satisfied the definition of a governmental entity. The Plaintiffs ask the Court to require Atrium to bring its plans into compliance with Employee Retirement Income Security Act and afford the Class all the protections of ERISA. According to the complaint, Atrium has never satisfied the Federal law definition of a government of a state, a government of a political subdivision, or an agency or instrumentality of such and, therefore, the Plans do not qualify as ERISA-exempt Governmental Plans. Atrium’s Plans were not established by a governmental entity, and more importantly, the Plans are not maintained by any governmental entity, The lack of control over Atrium by any State, political subdivision, or agency or instrumentality of such has allowed Atrium unfettered growth to expand its operations to three states. For example, Atrium's governing body -- the Board of Atrium Commissioners -- is not controlled by any state or political subdivision. Atrium's daily operations are not controlled or overseen by officials of any state or political subdivision. Atrium's Board of Commissioners are not publicly nominated or elected -- incoming Atrium Commissioners are nominated by the Atrium Commissioners in a self-perpetuating cycle. Atrium's employees are not treated in the same manner as government employees of any state or employees of any political subdivision thereof. For instance, Atrium employees: (a) are not entitled to civil service protections; (b) are not subject to any state personnel act, which provides a system of personnel administration for state and local government employees; (c) do not have their salaries publicly available, compared to the salaries of state and local government employees; and (d) are paid salaries from Atrium’s revenue, not from any state funds or county funds collected from a taxpayer. No state nor any political subdivision of a state has fiscal responsibility for any debts or liabilities of Atrium. No state or political subdivision thereof provides any funding to Atrium, including any funding for Atrium’s employee benefit Plans. Atrium is not funded through tax revenues or other public sources. Atrium does not have the authority to levy taxes on any state residents or residents of any political subdivision to fund its operations or to raise revenue to fund its Plans rendering the claim to be a government plan all the more inapt. Rather, Atrium is a non-profit healthcare conglomerate that competes with other non-profit healthcare conglomerates in its commercial healthcare activities, the lawsuit says.[BN] Attorneys for Plaintiffs: Martha Geer, Esq. Karen L. Handorf, Esq. Julie Goldsmith Reiser, Esq. Jamie Bowers, Esq. COHEN MILSTEIN SELLERS & TOLL, PLLC 150 Fayetteville Street, Suite 980 Raleigh, NC 27601 Telephone: (919) 890-0560 Facsimile: (919) 890-0567 E-mail: mgeer@cohenmilstein.com khandorf@cohenmilstein.com jreiser@cohenmilstein.com jbowers@cohenmilstein.com AVANOS MEDICAL: Appeal in Bahamas Surgery Class Suit Still Pending ------------------------------------------------------------------ Avanos Medical, 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 the company's appeal in Bahamas Surgery Center, LLC v. Kimberly-Clark Corporation and Halyard Health, Inc., is still pending. Avanos Medical said, "We have an Indemnification Obligation for the matter styled Bahamas Surgery Center, LLC v. Kimberly-Clark Corporation and Halyard Health, Inc., No. 2:14-cv-08390-DMG-SH (C.D. Cal.) ("Bahamas"), filed on October 29, 2014. In that case, the plaintiff brought a putative class action asserting claims for common law fraud (affirmative misrepresentation and fraudulent concealment) and violation of California's Unfair Competition Law ("UCL") in connection with the company's marketing and sale of MicroCool surgical gowns. On April 7, 2017, a jury returned a verdict for the plaintiff, finding that Kimberly-Clark was liable for $4 million in compensatory damages (not including prejudgment interest) and $350 million in punitive damages, and that Avanos was liable for $0.3 million in compensatory damages (not including prejudgment interest) and $100 million in punitive damages. Subsequently, the court also ruled on the plaintiff's UCL claim and request for injunctive relief. The court found in favor of the plaintiff on the UCL claim but denied the plaintiff's request for restitution. The court also denied the plaintiff's request for injunctive relief. On May 25, 2017, the company filed three post-trial motions: a renewed motion for judgment as a matter of law; a motion to decertify the class; and a motion for new trial, remittitur, or amendment of the judgment. On March 30, 2018, the court ruled on the post-trial motions. The court denied all three, except it granted in part the motion to reduce the award of punitive damages to a 5 to 1 ratio with compensatory damages. On April 11, 2018, the court issued an Amended Judgment in favor of the plaintiff and against the company and Kimberly-Clark. The judgment against the company is $0.3 million in compensatory damages and pre-judgment interest and $1.3 million in punitive damages. The judgment against Kimberly-Clark is $3.9 million in compensatory damages, $1.3 million in pre-judgment interest and $19.4 million in punitive damages. On April 12, 2018, the company filed a notice of appeal to the Ninth Circuit Court of Appeals. Avanos Medical said, "We intend to continue our vigorous defense of the Bahamas matter." No further updates were provided in the Company's SEC report. Avanos Medical, Inc. operates as a medical technology company that focuses on eliminating pain, speeding recovery, and preventing infection for healthcare providers and patients worldwide. Its Medical Devices segment provides a portfolio of products that focuses on respiratory and digestive health, along with surgical and interventional pain management. Its products include post-operative pain management solutions, minimally invasive interventional pain therapies, closed airway suction systems, and enteral feeding tubes. Avanos Medical, Inc. was incorporated in 2014 and is headquartered in Alpharetta, Georgia. AVINGER INC: Court Approves Settlement in Consolidated Cal. Suit ---------------------------------------------------------------- said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 13, 2018, for the quarterly period ended September 30, 2018, that the court has approved the settlement in the consolidated class action suit entitled, Gonzalez v. Avinger, Inc., et al., No. 17-CIV-02284 Between May 22, 2017 and May 25, 2017, three purported class action lawsuits were filed in the Superior Court of the State of California, County of San Mateo ("State Court"), against the Company, certain of its officers and directors and the underwriters of the Company's January 2015 IPO. The actions were captioned Grotewiel v. Avinger, Inc., et al., No. 17-CIV-02240, Gonzalez v. Avinger, Inc., et al., No. 17-CIV-02284, and Olberding v. Avinger, Inc., et al., No. 17-CIV-02307. These lawsuits allege that the registration statement for the Company's initial public offering (IPO) made false and misleading statements and omissions in violation of the Securities Act of 1933. Plaintiffs seek to represent a class of purchasers of the company's common stock in and/or traceable to the company's IPO. Plaintiffs seek, among other things, unspecified compensatory damages, interest, costs, recission, and attorneys' fees. On June 12, 2017, defendants removed these actions to the United States District Court for the Northern District of California ("Federal Court"). On June 22, 2017, and June 23, 2017, plaintiffs Olberding and Gonzalez moved to remand their cases to the State Court. Defendants opposed these motions. On July 21, 2017, the Federal Court granted the motions to remand the Olberding and Gonzalez actions to the State Court. On August 9, 2017, the State Court consolidated the Olberding and Grotewiel actions under the caption Gonzalez v. Avinger, Inc., et al., No. 17-CIV-02284 ("State Action"). On September 22, 2017, an amended complaint was filed in the State Action. On October 31, 2017, the parties in the State Action stipulated to a stay of proceedings until judgment is entered in the Federal Action. On October 11, 2017, the Federal Court appointed a lead plaintiff and approved the selection of a lead counsel in the Grotewiel action ("Federal Action"). On November 2, 2017, pursuant to stipulation of the parties, the State Court entered an order staying proceedings in the State Action until judgment is entered in the Federal Action. On June 20, 2018, the State Court dismissed the State Action pursuant to the proposed settlement. On November 21, 2017, an amended complaint was filed in the Federal Action. Defendants filed a motion to dismiss that complaint on January 26, 2018. On March 19, 2018, plaintiff in the Federal Action filed a further amended complaint, on behalf of a class of purchasers of our common stock in and/or traceable to our IPO, as well as purchasers of our common stock during the period January 30, 2015, to April 10, 2017. The Company and its directors believe that the foregoing lawsuits were without merit; however, in the interest of avoiding the cost and disruption of continuing to defend against these lawsuits, the Company entered into a settlement of the actions. The settlement was for a total of $5.0 million. The Company's total contribution to the settlement fund was $1.76 million, which the Company paid in March 2018. On October 24, 2018, the court approved the settlement. Avinger, Inc., a commercial-stage medical device company, designs, manufactures, and sells image-guided and catheter-based systems used by physicians to treat patients with peripheral arterial disease (PAD) in the United States and Europe. Avinger, Inc. was founded in 2007 and is headquartered in Redwood City, California. AXA EQUITABLE: Brach Family Foundation Class Action Ongoing ----------------------------------------------------------- AXA Equitable Life Insurance Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 13, 2018, for the quarterly period ended September 30, 2018, that the company continues to defend itself against a consolidated class action suit entitled, Brach Family Foundation, Inc. v. AXA Equitable Life Insurance Company. In February 2016, a lawsuit was filed in the United States District Court for the Southern District of New York entitled Brach Family Foundation, Inc. v. AXA Equitable Life Insurance Company. This lawsuit is a putative class action brought on behalf of all owners of universal life ("UL") policies subject to AXA Equitable's COI increase. In early 2016, AXA Equitable raised COI rates for certain UL policies issued between 2004 and 2007, which had both issue ages 70 and above and a current face value amount of $1 million and above. A second putative class action was filed in Arizona in 2017 and consolidated with the Brach matter. The current consolidated class action complaint alleges the following claims: breach of contract; misrepresentations by AXA Equitable in violation of Section 4226 of the New York Insurance Law; violations of New York General Business Law Section 349; violations of the California Unfair Competition Law, and the California Elder Abuse Statute. Plaintiffs seek (a) compensatory damages, costs, and, pre- and post-judgment interest, (b) with respect to their claim concerning Section 4226, a penalty in the amount of premiums paid by the plaintiffs and the putative class, and (c) injunctive relief and attorneys' fees in connection with their statutory claims. Five other federal individual actions challenging the COI increase are also pending against AXA Equitable and have been consolidated with the Brach matter for the purposes of coordinating pre-trial activities. They contain similar allegations as those in Brach as well as additional allegations for violations of various states’ consumer protection statutes and common law fraud. Three state individual actions are also pending against AXA Equitable in New York and Virginia. AXA Equitable said, "We are in various stages of motion practice and are vigorously defending each of these matters." AXA Equitable Life Insurance Company, together with its subsidiaries, provides insurance, financial advisory, and investment management products and services in the United States and internationally. The company operates in two segments, Insurance and Investment Management. The company was founded in 1859 and is headquartered in New York, New York. AXA Equitable Life Insurance Company is a subsidiary of AXA Equitable Financial Services, LLC. AXA EQUITABLE: Still Defends O'Donnell Class Action --------------------------------------------------- AXA Equitable Life Insurance Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 13, 2018, for the quarterly period ended September 30, 2018, that the company continues to defend itself in the class action suit entitled Richard T. O'Donnell, on behalf of himself and all others similarly situated v. AXA Equitable Life Insurance Company. In November 2014, a lawsuit was filed in the Superior Court of New Jersey, Camden County entitled Arlene Shuster, on behalf of herself and all others similarly situated v. AXA Equitable Life Insurance Company. This lawsuit is a putative class action on behalf of all AXA Equitable variable life insurance policyholders who allocated funds from their policy accounts to investments in AXA Equitable's Separate Accounts, which were subsequently subjected to the volatility management strategy and who suffered injury as a result thereof. The action asserts that AXA Equitable breached its variable life insurance contracts by implementing the volatility management strategy. In February 2016, the Court dismissed the complaint. In March 2016, the plaintiff filed a notice of appeal. In April 2018, the Superior Court of New Jersey Appellate Division affirmed the trial court's decision. In August 2015, another lawsuit was filed in Connecticut Superior Court, Judicial Division of New Haven entitled Richard T. O'Donnell, on behalf of himself and all others similarly situated v. AXA Equitable Life Insurance Company. This lawsuit is a putative class action on behalf of all persons who purchased variable annuities from AXA Equitable, which were subsequently subjected to the volatility management strategy and who suffered injury as a result thereof. Plaintiff asserts a claim for breach of contract alleging that AXA Equitable implemented the volatility management strategy in violation of applicable law. In November 2015, the Connecticut Federal District Court transferred this action to the United States District Court for the Southern District of New York. In March 2017, the Southern District of New York granted AXA Equitable's motion to dismiss the complaint. In April 2017, the plaintiff filed a notice of appeal. In April 2018, the United States Court of Appeals for the Second Circuit reversed the trial court's decision with instructions to remand the case to Connecticut state court. In September 2018, the Second Circuit issued its mandate, following AXA Equitable's notification to the court that it would not file a petition for writ of certiorari. AXA Equitable said, "We are vigorously defending this matter." AXA Equitable Life Insurance Company, together with its subsidiaries, provides insurance, financial advisory, and investment management products and services in the United States and internationally. The company operates in two segments, Insurance and Investment Management. The company was founded in 1859 and is headquartered in New York, New York. AXA Equitable Life Insurance Company is a subsidiary of AXA Equitable Financial Services, LLC. B RILEY FINANCIAL: Suit Against MLV & Co. Still Ongoing ------------------------------------------------------- B. Riley Financial, 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 a putative class action suit against MLV & Co. is still ongoing. On January 5, 2017, complaints filed in November 2015 and May 2016 naming MLV & Co. ("MLV"), a broker-dealer subsidiary of FBR & Co., as a defendant in putative class action lawsuits alleging claims under the Securities Act, in connection with the offerings of Miller Energy Resources, Inc. ("Miller") have been consolidated. The Master Consolidated Complaint, styled Gaynor v. Miller et al., is pending in the United States District Court for the Eastern District of Tennessee, and, like its predecessor complaints, continues to allege claims under Sections 11 and 12 of the Securities Act against nine underwriters for alleged material misrepresentations and omissions in the registration statement and prospectuses issued in connection with six offerings (February 13, 2013; May 8, 2013; June 28, 2013; September 26, 2013; October 17, 2013 (as to MLV only) and August 21, 2014) with an alleged aggregate offering price of approximately $151,000. The plaintiffs seek unspecified compensatory damages and reimbursement of certain costs and expenses. In August 2017, the Court granted Defendant's Motion to Dismiss on Section 12 claims and found that the plaintiffs had not sufficiently alleged a corrective disclosure prior to August 6, 2015, when an SEC civil action was announced. Defendants' answer was filed on September 25, 2017. Plaintiffs have filed motions for class certification and to remand the case to state court following a positive ruling in an unrelated case by the U.S. Supreme Court. Although MLV is contractually entitled to be indemnified by Miller in connection with this lawsuit, Miller filed for bankruptcy in October 2015 and this likely will decrease or eliminate the value of the indemnity that MLV receives from Miller. No further updates were provided in the Company's SEC report. B. Riley Financial, Inc. provides financial services and solutions in North America, Australia, and Europe. The company operates in four segments: Capital Markets, Auction and Liquidation, Valuation and Appraisal, and Principal Investments - United Online. B. Riley Financial, Inc. was founded in 1973 and is headquartered in Woodland Hills, California. BANK OZK: Wood Sues over Misleading Financial Report ---------------------------------------------------- RYAN A. WOOD, Individually and On Behalf of All Others Similarly Situated, the Plaintiff, vs. BANK OZK, GEORGE GLEASON, and GREGORY MCKINNEY, the Defendants, Case No. 1:18-cv-10800 (S.D.N.Y., Nov. 19, 2018), seeks 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. According to the complaint, the case is a federal securities class action on behalf of a class consisting of all persons other than Defendants who purchased or otherwise acquired Bank OZK securities between February 19, 2016 through October 18, 2018, both dates inclusive. Bank OZK was founded in 1981 and is headquartered in Little Rock, Arkansas. The Company was formerly known as Bank of the Ozarks and changed its name to Bank OZK in July 2018. As of December 31, 2017, the Company operated through 253 offices in Arkansas, Georgia, Florida, North Carolina, Texas, Alabama, South Carolina, California, New York, and Mississippi. Bank OZK's common stock trades on the Nasdaq Global Select Market under the ticker symbol "OZK". Bank OZK provides a range of retail and commercial banking services to businesses, individuals, and non-profit and governmental entities. In addition to traditional savings and checking accounts, the Company offers various loan products, including real estate loans, such as loans secured by residential 1-4 family, non-farm/non-residential, agricultural, construction/land development, multifamily residential properties, and other land loans; small business and consumer loans; indirect consumer marine and RV loans; and government guaranteed loans comprising SBA and FSA guaranteed loans. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: (i) the Company lacked adequate internal controls to assess credit risk; (ii) as a result, certain of the Company's loans posed an increased risk of loss; (iii) certain substandard loans were reasonably likely to lead to charge-offs; and (iv) as a result, the Company’s public statements were materially false and misleading at all relevant times. On October 18, 2018, the Company reported that it had "incurred combined charge-offs of $45.5 million on two Real Estate Specialties Group credits” that had previously been classified as substandard. On this news, the Company's share price fell $9.33 per share, more than 26%, to close at $25.52 per share on October 19, 2018, on unusually heavy trading volume. As a result of Defendants' wrongful acts and omissions, and the precipitous decline in the market value of the Company's securities, Plaintiff and other Class members have suffered significant losses and damages, the lawsuit says.[BN] Attorneys for Plaintiff: Jeremy A. Lieberman, Esq. J. Alexander Hood II, Esq. Jonathan Lindenfeld, Esq. Patrick V. Dahlstrom, Esq. POMERANTZ LLP 600 Third Avenue, 20 th Floor New York, NY 10016 Telephone: (212) 661-1100 Facsimile: (212) 661-8665 E-mail: jalieberman@pomlaw.com ahood@pomlaw.com jlindenfeld@pomlaw.com pdahlstrom@pomlaw.com BAUSCH HEALTH: Appeal in Afexa-Related Class Suit Underway ---------------------------------------------------------- Bausch Health Companies 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 the company continues to defend itself from class action lawsuit in Canada. On March 9, 2012, a Notice of Civil Claim was filed in the Supreme Court of British Columbia which sought an order certifying a proposed class proceeding against the Company and a predecessor, Afexa Life Sciences Inc. ("Afexa") (Case No. NEW-S-S-140954). The proposed claim asserted that Afexa and the Company made false representations respecting Cold-FX(R) to residents of British Columbia who purchased the product during the applicable period and that the proposed class has suffered damages as a result. On November 8, 2013, the Plaintiff served an amended notice of civil claim which sought to re-characterize the representation claims and broaden them from what was originally claimed. On December 8, 2014, the Company filed a motion to strike certain elements of the Plaintiff's claim for failure to state a cause of action. In response, the Plaintiff proposed further amendments to its claim. The hearing on the motion to strike and the Plaintiff's amended claim was held on February 4, 2015. The Court allowed certain additional subsequent amendments, while it struck others. The hearing to certify the class was held on April 4-8, 2016 and, on November 16, 2016, the Court issued a decision dismissing the plaintiff's application for certification of this action as a class proceeding. On December 15, 2016, the plaintiff filed a notice of appeal in the British Columbia Court of Appeal appealing the decision to dismiss the application for certification. The plaintiff filed its appeal factum on March 15, 2017 and the Company filed its appeal factum on April 19, 2017. The appeal hearing was held on September 19, 2017 and, on April 30, 2018, the British Columbia Court of Appeal dismissed the appeal. On June 29, 2018, the plaintiff filed leave to appeal to the Supreme Court of Canada in this matter and the Company filed its reply on August 30, 2018. Bausch Health said, "The Company intends to continue to vigorously defend this matter." Bausch Health Companies Inc. develops, manufactures, and markets a range of pharmaceutical, medical device, and over-the-counter products primarily in the therapeutic areas of eye health, gastroenterology, and dermatology. The company was formerly known as Valeant Pharmaceuticals International, Inc. and changed its name to Bausch Health Companies Inc. in July 2018. Bausch Health Companies Inc. was founded in 1983 and is headquartered in Laval, Canada. BAUSCH HEALTH: Briefing in Contact Lens Case Underway ----------------------------------------------------- Bausch Health Companies 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 briefing related to the motion for summary judgment filed by the company in case entitled, In re Disposable Contact Lens Antitrust Litigation, Case No. 3:15-md-02626-HES-JRK, is scheduled to be completed on December 17, 2018. Beginning in March 2015, a number of civil antitrust class action suits were filed by purchasers of contact lenses against B&L Inc., three other contact lens manufacturers, and a contact lens distributor, alleging that the defendants engaged in an anticompetitive scheme to eliminate price competition on certain contact lens lines through the use of unilateral pricing policies. The plaintiffs in such suits alleged violations of Section 1 of the Sherman Act, 15 U.S.C. Section 1, and of various state antitrust and consumer protection laws, and further alleged that the defendants have been unjustly enriched through their alleged conduct. The plaintiffs sought declaratory and injunctive relief and, where applicable, treble, punitive and/or other damages, including attorneys' fees. By order dated June 8, 2015, the Judicial Panel for Multidistrict Litigation (JPML) centralized the suits in the Middle District of Florida, under the caption In re Disposable Contact Lens Antitrust Litigation, Case No. 3:15-md-02626-HES-JRK, before U.S. District Judge Harvey E. Schlesinger. After the Class Plaintiffs filed a corrected consolidated class action complaint on December 16, 2015, the defendants jointly moved to dismiss those complaints. On June 16, 2016, the Court granted the Defendants' motion to dismiss with respect to claims brought under the Maryland Consumer Protection Act, but denied the motion to dismiss with respect to claims brought under Sherman Act, Section 1 and other state laws. Discovery has been concluded. On March 3, 2017, the Class Plaintiffs filed their motion for class certification. On June 15, 2017, defendants filed a motion to oppose the plaintiffs' class certification motion, as well as motions to exclude plaintiffs' expert reports. An evidentiary hearing was held before Judge Schlesinger on August 1 and 2, 2018. On August 20, 2018, the Company filed a motion for summary judgment. Briefing related to the motion for summary judgment is scheduled to be completed on December 17, 2018. The Company intends to vigorously defend all of these actions. Bausch Health Companies Inc. develops, manufactures, and markets a range of pharmaceutical, medical device, and over-the-counter products primarily in the therapeutic areas of eye health, gastroenterology, and dermatology. The company was formerly known as Valeant Pharmaceuticals International, Inc. and changed its name to Bausch Health Companies Inc. in July 2018. Bausch Health Companies Inc. was founded in 1983 and is headquartered in Laval, Canada. BAUSCH HEALTH: Continues to Defend Class Suits in Canada -------------------------------------------------------- Bausch Health Companies 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 the company continues to defend itself from several class action suits in Canada. In 2015, six putative class actions were filed and served against the Company in Canada in the provinces of British Columbia, Ontario and Quebec. These actions are captioned: (a) Alladina v. Valeant, et al. (Case No. S-1594B6) (Supreme Court of British Columbia) (filed November 17, 2015); (b) Kowalyshyn v. Valeant, et al. (CV-15-540593-00CP) (Ontario Superior Court) (filed November 16, 2015); (c) Kowalyshyn et al. v. Valeant, et al. (CV-15-541082-00CP) (Ontario Superior Court) (filed November 23, 2015); (d) O'Brien v. Valeant et al. (CV-15-543678-00CP) (Ontario Superior Court) (filed December 30, 2015); (e) Catucci v. Valeant, et al. (Court File No. 540-17-011743159) (Quebec Superior Court) (filed October 26, 2015); and (f) Rousseau-Godbout v. Valeant, et al. (Court File No. 500-06-000770-152) (Quebec Superior Court) (filed October 27, 2015). The Alladina, Kowalyshyn, O'Brien, Catucci and Rousseau-Godbout actions also name, among others, certain current or former directors and officers of the Company. The Rosseau-Godbout action was subsequently stayed by the Quebec Superior Court by consent order. Each of the five remaining actions alleges violations of Canadian provincial securities legislation on behalf of putative classes of persons who purchased or otherwise acquired securities of the Company for periods commencing as early as January 1, 2013 and ending as late as November 16, 2015. The alleged violations relate to, among other things, alleged misrepresentations and/or failures to disclose material information about the Company's business and prospects, relating to drug pricing, the Company's policies and accounting practices, the Company's use of specialty pharmacies and, in particular, the Company's relationship with Philidor. The Alladina, Kowalyshyn and O'Brien actions also assert common law claims for negligent misrepresentation, and the Alladina claim additionally asserts common law negligence, conspiracy, and claims under the British Columbia Business Corporations Act, including the statutory oppression remedies in that legislation. The Catucci action asserts claims under the Quebec Civil Code, alleging the Company breached its duty of care under the civil standard of liability contemplated by the Code. The Company is aware of two additional putative class actions that have been filed with the applicable court but which have not yet been served on the Company. These actions are captioned: (i) Okeley v. Valeant, et al. (Case No. S-159991) (Supreme Court of British Columbia) (filed December 2, 2015); and (ii) Sukenaga v Valeant et al. (CV-15-540567-00CP) (Ontario Superior Court) (filed November 16, 2015), and the factual allegations made in these actions are substantially similar to those outlined above. The Company has been advised that the plaintiffs in these actions do not intend to pursue the actions. On June 10, 2016, the Ontario Superior Court of Justice rendered its decision on carriage motions (motions held to determine who will have carriage of the class action) heard on April 8, 2016, provisionally staying the O'Brien action, in favor of the Kowalyshyn action. On September 15, 2016, in response to an arrangement between the plaintiffs in the Kowalyshyn action and the O'Brien action, the court ordered both that the Kowalyshyn action be consolidated with the O'Brien action and that the consolidated action be stayed in favor of the Catucci action pending either the further order of the Ontario court or the determination of the motion for leave in the Catucci action. In the Catucci action, motions for leave under the Quebec Securities Act and for authorization as a class proceeding were heard the week of April 24, 2017, with the motion judge reserving her decision. Prior to that hearing, the parties resolved applications by the defendants concerning jurisdiction and class composition, with the plaintiffs agreeing to revise the definition of the proposed class to exclude claims in respect of Company securities purchased in the United States. On August 29, 2017, the judge released her reasons for judgment granting the plaintiffs leave to proceed with their claims under the Quebec Securities Act and authorizing the class proceeding. On October 12, 2017, the Company and the other defendants filed applications for leave to appeal from certain aspects of the decision authorizing the class proceeding. The applications for leave to appeal were heard on November 22, 2017 and were dismissed on November 30, 2017. On October 26, 2017, the plaintiffs issued their Judicial Application Originating Class Proceedings. A timetable for certain pre-trial procedural matters in the action has been set and the notice of certification has been disseminated to class members. Among other things, the timetable established a deadline of June 19, 2018 for class members to exercise their right to opt-out of the class. In addition to the class proceedings described above, on April 12, 2018, the Company was served with an application for leave filed in the Quebec Superior Court of Justice to pursue an action under the Quebec Securities Act against the Company and certain current or former officers and directors. This action is captioned BlackRock Asset Management Canada Limited et al. v. Valeant, et al. (Court File No. 500-11-054155-185). The allegations in the proceeding are similar to those made by plaintiffs in the Catucci class action. On June 18, 2018, the same BlackRock entities filed an originating application against the same defendants asserting claims under the Quebec Civil Code in respect of the same alleged misrepresentations. Bausch Health said, "The Company is aware that certain other members of the Catucci class exercised their opt-out rights prior to the June 19, 2018 deadline. The Company believes that it has viable defenses in each of these actions. In each case, the Company intends to defend itself vigorously." Bausch Health Companies Inc. develops, manufactures, and markets a range of pharmaceutical, medical device, and over-the-counter products primarily in the therapeutic areas of eye health, gastroenterology, and dermatology. The company was formerly known as Valeant Pharmaceuticals International, Inc. and changed its name to Bausch Health Companies Inc. in July 2018. Bausch Health Companies Inc. was founded in 1983 and is headquartered in Laval, Canada. BAUSCH HEALTH: Continues to Defend Shower to Shower Suits in Canada ------------------------------------------------------------------- Bausch Health Companies 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 the company continues to defend itself from two class action suits in Canada relating to Johnson & Johnson's Baby Powder or Shower to Shower. Two proposed class actions have been filed in Canada against the Company and various Johnson & Johnson entities (one in the Supreme Court of British Columbia and one in the Superior Court of Quebec). The Company also acquired the rights to the Shower to Shower product in Canada from Johnson & Johnson in September 2012. In the British Columbia matter, the plaintiff seeks to certify a proposed class action on behalf of persons in British Columbia and Canada who have purchased or used Johnson & Johnson's Baby Powder or Shower to Shower, including their estates, executors and personal representatives, and is alleging that the use of this product increases certain health risks. In the Quebec matter, the plaintiff sought to certify a proposed class action on behalf of persons in Quebec who have used Johnson & Johnson's Baby Powder or Shower to Shower, as well as their family members, assigns and heirs, and is alleging negligence in failing to properly test, failing to warn of health risks, and failing to remove the products from the market in a timely manner. A certification (also known as authorization) hearing in the Quebec matter was held on January 11, 2018. On May 2, 2018, the Court certified (or as stated under Quebec law, authorized) the bringing of a class action by a representative plaintiff on behalf of people in Quebec who have used Johnson & Johnson's Baby Powder and/or Shower to Shower in their perineal area and have been diagnosed with ovarian cancer and/or family members, assigns and heirs. The plaintiffs in these actions are seeking awards of general, special, compensatory and punitive damages. Bausch Health Companies Inc. develops, manufactures, and markets a range of pharmaceutical, medical device, and over-the-counter products primarily in the therapeutic areas of eye health, gastroenterology, and dermatology. The company was formerly known as Valeant Pharmaceuticals International, Inc. and changed its name to Bausch Health Companies Inc. in July 2018. Bausch Health Companies Inc. was founded in 1983 and is headquartered in Laval, Canada. BAUSCH HEALTH: Third-Party Payor Class Suit Remains Stayed ---------------------------------------------------------- Bausch Health Companies 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 the case entitled, In re Valeant Pharmaceuticals International, Inc. Third-Party Payor Litigation, No. 3:16-cv-03087, is still stayed. Between May 27, 2016 and September 16, 2016, three virtually identical actions were filed in the U.S. District Court for the District of New Jersey against the Company and various third parties, alleging claims under the federal Racketeer Influenced Corrupt Organizations Act ("RICO") on behalf of a putative class of certain third-party payors that paid claims submitted by Philidor for certain Company branded drugs between January 2, 2013 and November 9, 2015 (Airconditioning and Refrigeration Industry Health and Welfare Trust Fund et al. v. Valeant Pharmaceuticals International. Inc. et al., No. 3:16-cv-03087, Plumbers Local Union No. 1 Welfare Fund v. Valeant Pharmaceuticals International Inc. et al., No. 3:16-cv-3885 and N.Y. Hotel Trades Council et al v. Valeant Pharmaceuticals International. Inc. et al., No. 3:16-cv-05663). On November 30, 2016, the Court entered an order consolidating the three actions under the caption In re Valeant Pharmaceuticals International, Inc. Third-Party Payor Litigation, No. 3:16-cv-03087. A consolidated class action complaint was filed on December 14, 2016. The consolidated complaint alleges, among other things, that the Defendants committed predicate acts of mail and wire fraud by submitting or causing to be submitted prescription reimbursement requests that misstated or omitted facts regarding (1) the identity and licensing status of the dispensing pharmacy; (2) the resubmission of previously denied claims; (3) patient co-pay waivers; (4) the availability of generic alternatives; and (5) the insured's consent to renew the prescription. The complaint further alleges that these acts constitute a pattern of racketeering or a racketeering conspiracy in violation of the RICO statute and caused plaintiffs and the putative class unspecified damages, which may be trebled under the RICO statute. The Company moved to dismiss the consolidated complaint on February 13, 2017. Briefing of the motion was completed on May 17, 2017. On March 14, 2017, other defendants filed a motion to stay the RICO class action pending the resolution of criminal proceedings against Andrew Davenport and Gary Tanner. The Company did not oppose the motion to stay. On August 9, 2017, the Court granted the motion to stay and entered an order staying all proceedings in the case and accordingly terminating other pending motions. The Company believes these claims are without merit and intends to defend itself vigorously. Bausch Health Companies Inc. develops, manufactures, and markets a range of pharmaceutical, medical device, and over-the-counter products primarily in the therapeutic areas of eye health, gastroenterology, and dermatology. The company was formerly known as Valeant Pharmaceuticals International, Inc. and changed its name to Bausch Health Companies Inc. in July 2018. Bausch Health Companies Inc. was founded in 1983 and is headquartered in Laval, Canada. BBX CAPITAL: Bid for Protective Order vs. BVU Pending ----------------------------------------------------- BBX Capital Corporation 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 the plaintiffs' motion for protective order in the class action suit against Bluegreen Vacations Unlimited, Inc., is pending. On August 24, 2016, Whitney Paxton and Jeff Reeser filed a lawsuit against Bluegreen Vacations Unlimited, Inc. ("BVU"), a wholly-owned subsidiary of Bluegreen, and certain of its employees, seeking to establish a class action of former and current employees of BVU and alleging violations of plaintiffs' rights under the Fair Labor Standards Act of 1938 (the "FLSA") and breach of contract. The lawsuit also claims that the defendants terminated plaintiff Whitney Paxton as retaliation for her complaints about alleged violations of the FLSA. The lawsuit seeks damages in the amount of the unpaid compensation owed to the plaintiffs. During July 2017, a magistrate judge entered a report and recommendation that the plaintiffs' motion to conditionally certify collective action and facilitate notice to potential class members be granted with respect to certain employees and denied as to others. During September 2017, the judge accepted the recommendation and granted preliminary approval of class certification. Based on that conditional class certification, all potential class members were provided Consent Forms to opt-in to the lawsuit, which opt-in period has since expired, and a set number of opt-ins has been determined (approximately 80). Class-wide discovery was subsequently served and plaintiffs filed a Motion for Protective Order which is pending. BBX Capital said, "Bluegreen intends to seek to compel 59 of the currently named opt-in plaintiffs to submit their respective claims to arbitration on an individual basis. Bluegreen believes that the lawsuit is without merit and intends to vigorously defend the action." BBX Capital Corporation is an investment holding company investing through its subsidiaries BBX Capital Partners, LLC and BBX Capital Real Estate Corp. Through its subsidiaries the firm seeks to make investment in, acquisition, ownership, financing, development, and management of real estate and real estate related assets. It was formerly known as BankAtlantic Bancorp, Inc. and changed its name in July 2012. BBX Capital Corporation was founded in 1994 and is based in Fort Lauderdale, Florida. BBX Capital Corporation operates as a subsidiary of BFC Financial Corporation. BBX CAPITAL: Landon et al. Class Action Underway ------------------------------------------------ BBX Capital Corporation 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 the company is defending against a purported class action suit initiated by Melissa S. Landon, Edward P. Landon, Shane Auxier and Mu Hpare. On June 28, 2018, Melissa S. Landon, Edward P. Landon, Shane Auxier and Mu Hpare, individually and on behalf of all others similarly situated, filed a purported class action lawsuit against Bluegreen Vacations Corporation (Bluegreen) and Bluegreen Vacations Unlimited, Inc. (BVU) asserting claims for alleged violations of the Wisconsin Timeshare Act, Wisconsin law prohibiting illegal referral selling, and Wisconsin law prohibiting illegal attorney's fee provisions. Plaintiffs allegations include that Bluegreen failed to disclose the identity of the seller of real property at the beginning of its initial contact with the purchaser; that Bluegreen misrepresented who the seller of the real property was; that Bluegreen misrepresented the buyer's right to cancel; that Bluegreen included an illegal attorney's fee provision in the sales document(s); that Bluegreen offered an illegal "today only" incentive to purchase; and that Bluegreen utilizes an illegal referral selling program to induce the sale of Vacation ownership interests (VOIs). Plaintiffs seek certification of a class consisting of all persons who, in Wisconsin, purchased from Bluegreen one or more VOIs within six years prior to the filing of this lawsuit. Plaintiffs seek statutory damages, attorneys' fees and injunctive relief. Bluegreen believes the lawsuit is without merit and intend to vigorously defend the action. BBX Capital Corporation is an investment holding company investing through its subsidiaries BBX Capital Partners, LLC and BBX Capital Real Estate Corp. Through its subsidiaries the firm seeks to make investment in, acquisition, ownership, financing, development, and management of real estate and real estate related assets. It was formerly known as BankAtlantic Bancorp, Inc. and changed its name in July 2012. BBX Capital Corporation was founded in 1994 and is based in Fort Lauderdale, Florida. BBX Capital Corporation operates as a subsidiary of BFC Financial Corporation. BBX CAPITAL: Still Defends Vacation Ownership Interests Suit ------------------------------------------------------------ BBX Capital Corporation 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 the company continues to defend against a purported class action suit related to Vacation Ownership Interests. On September 22, 2017, Stephen Potje, Tamela Potje, Sharon Davis, Beafus Davis, Matthew Baldwin, Tammy Baldwin, Arnor Lee, Angela Lee, Gretchen Brown, Paul Brown, Jeremy Estrada, Emily Estrada, Michael Oliver, Carrie Oliver, Russell Walters, Elaine Walters, and Mike Ericson, individually and on behalf of all other similarly situated, filed a purported class action lawsuit against Bluegreen Vacations (Bluegreen) which asserted claims for alleged violations of the Florida Deceptive and Unfair Trade Practices Act and the Florida False Advertising Law. In the complaint, the plaintiffs alleged the making of false representations in connection with Bluegreen's sales of vacation ownership interests (VOIs), including representations regarding the ability to use points for stays or other experiences with other vacation providers, the ability to cancel VOI purchases and receive a refund of the purchase price and the ability to roll over unused points and that annual maintenance fees would not increase. The complaint sought to establish a class of consumers who, since the beginning of the applicable statute of limitations, purchased VOIs from Bluegreen, had their annual maintenance fees relating to Bluegreen VOIs increased, or were unable to roll over their unused points to the next calendar year. The plaintiffs sought damages in the amount alleged to have been improperly obtained by Bluegreen, as well as any statutory enhanced damages, attorneys' fees and costs, and equitable and injunctive relief. On November 20, 2017, Bluegreen moved to dismiss the complaint and, in response, the plaintiffs filed an amended complaint dropping the claims relating to the Florida Deceptive and Unfair Trade Practices Act and adding claims for fraud in the inducement and violation of the Florida Vacation Plan and Timesharing Act. On March 20, 2018, the plaintiffs withdrew their motion for class action certification and on March 23, 2018, the court ordered dismissal of the suit. On April 24, 2018, the plaintiffs filed a new lawsuit against BVU, for substantially the same claims, but only on behalf of the 18 named individuals and not as a class action. Bluegreen believes that the lawsuit is without merit and intends to vigorously defend the action. BBX Capital Corporation is an investment holding company investing through its subsidiaries BBX Capital Partners, LLC and BBX Capital Real Estate Corp. Through its subsidiaries the firm seeks to make investment in, acquisition, ownership, financing, development, and management of real estate and real estate related assets. It was formerly known as BankAtlantic Bancorp, Inc. and changed its name in July 2012. BBX Capital Corporation was founded in 1994 and is based in Fort Lauderdale, Florida. BBX Capital Corporation operates as a subsidiary of BFC Financial Corporation. BLUE APRON: Employee File Class Action Over Labor Law Violations ---------------------------------------------------------------- Caroline O'Donovan, writing for BuzzFeed News, reports that Blue Apron employees have filed a class-action lawsuit against the company, alleging that they weren't paid overtime, or for meal breaks, among other labor law violations. They are seeking back pay for missed wages and a trial by jury. The suit filed by Rashida Fairley on behalf of all hourly employees, was moved to a federal court in California. Ms. Fairley alleges that Blue Apron routinely forced hourly employees to clock out before their meal break, effectively cheating them out of thirty minutes of pay per shift, a practice known in the world of labor law as "time shaving." According to the lawsuit, Blue Apron claims on its website that "we win together, not alone; we operate with integrity." "If Blue Apron truly does operate with integrity and is accountable," the lawsuit reads, "then it will pay its employees all of their hard-earned wages." Blue Apron denied all of Ms. Fairley's claims in its initial response in court. In an email statement, a Blue Apron spokesperson said, "We cannot comment on pending litigation, though we intend to vigorously defend ourselves." Plaintiff's lawyers didn't respond to repeated requests for comment on the suit. According to court documents filed by Blue Apron, the number of employees represented in the suit, which covers the period between 2014 and 2018, is at least 2,805 and could cost the company over $5 million. Blue Apron employs thousands of low-wage workers in food processing plants in New Jersey, Texas, and California, where this suit was filed. State regulators fined its Richmond, California, facility for multiple health and safety violations during the time to which this lawsuit pertains. The UC Berkeley Labor Center recently published a report on working conditions in a meal-kit factory in California, which highlights long hours, low wages, uncomfortable working conditions, and safety accidents. Blue Apron recently laid off 4% of its staff ahead of its quarterly earnings report in hopes of saving $16 million and making a profit in 2019. The company is also being sued by an Iowa-based meat processing company, which claims the meal-kit company reneged on a $26 million contract to purchase free-range chickens, necessitating mass layoffs and the closure of a plant in Arkansas. Blue Apron went public in 2017 with a share price of $10; it is currently trading at $1.09. [GN] BRE SELECT: Still Defends Battaglia Class Suit in E.D.N.Y. ---------------------------------------------------------- BRE Select Hotels Corp. is still facing the putative class action suit styled Battaglia v. BRE Select Hotels Corp., 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, as the successor to Apple Six, is subject to claims for alleged acts of Apple Six that occurred prior to the Merger. On February 24, 2017, a putative class action, captioned Wilchfort v. Knight, et al., Civil Action No. 17-cv-01046 (E.D.N.Y.), was filed in the United States District Court for the Eastern District of New York against BRE Select Hotels Corp, as successor-in-interest to Apple REIT Six, Inc., Apple Hospitality REIT, Inc., Apple REIT Seven, Inc., Apple REIT Eight, Inc. (together with Apple REIT Six, Inc. and Apple REIT Seven, Inc., the "Apple REITs"), certain of the Apple REITs' directors, officers and advisors, and Apple Fund Management, LLC. Plaintiff seeks to represent a class of all persons and entities who elected to participate in Apple REITs' Dividend Reinvestment Plans ("DRIPs") between July 17, 2007 and the later of the termination and/or suspension of the respective DRIPs or February 12, 2014. The complaint alleges, among other things, that the prices at which plaintiff and the purported class members purchased additional shares through the DRIPs were artificially inflated and not indicative of the true value of units in the Apple REITs. Plaintiff asserts claims for breach of contract, tortious interference with contract and tortious interference with business expectancy and breach of implied duty of good faith and fair dealing and seeks, among other things, damages and other costs and expenses. On March 30, 2018, the court granted in part and denied in part the Company's motion to dismiss and, on April 13, 2018, plaintiffs filed an amended complaint, captioned Wilchfort et al. v. BRE Select Hotels Corp., Civil Action No. 17-cv-1046 (E.D.N.Y.). On May 31, 2018, plaintiff filed a Second Amended Class Action Complaint, captioned Battaglia v. BRE Select Hotels Corp., Civil Action No. 17-cv-01046 (E.D.N.Y.), which, among other things, narrowed the putative class period to February 24, 2011 through November 29, 2012. On June 4, 2018, plaintiff filed a motion for class certification. On June 27, 2018, the Company filed an Answer to the Second Amended Class Action Complaint. BRE Select said, "The Company believes that any claims against it are without merit, and it intends to defend against them vigorously. At this time, the Company cannot reasonably predict the outcome of this proceeding or provide a reasonable estimate of the possible loss or range of loss due to this proceeding." BRE Select Hotels Corp is a non-listed real estate investment trust (REIT) focused on the ownership of upscale, extended-stay and select-service hotels. The company is based in New York, New York. BRIGHAM EXPLORATION: Denial of Boytim Bid to Certify Class Upheld ----------------------------------------------------------------- The Court of Appeals of Texas affirmed the trial court's order denying a motion to certify a class filed by plaintiffs--Raymond Boytim, Hugh Duncan, Walter Schwimmer, the Edward J. Goodman Life Income Trust, the Edward J. Goodman Generation Skipping Trust, Jeffrey Whalen, and Howard Weissberg ("Appellants "). Appellants filed suit against appellees Brigham Exploration Company, Ben M. Brigham, David T. Brigham, Harold D. Carter, Stephen C. Hurley, Stephen P. Reynolds, Hobart A. Smith, Scott W. Tinker, Statoil ASA, and Fargo Acquisition, Inc. for breach of fiduciary duty in connection with the sale of Brigham Exploration Company. Appellees have filed a conditional cross-appeal "to the extent necessary to preserve all arguments for affirming the trial court's order" in the event that the Court disagrees with the particular grounds reflected in the trial court's order. It is undisputed in this case that while Delaware substantive law governs Plaintiffs' claims, Texas procedural law governs class certification. All class actions must satisfy the four threshold requirements contained within Rule 42(a) of the Texas Rules of Civil Procedure: (1) numerosity ("the class is so numerous that joinder of all members is impracticable"); (2) commonality ("there are questions of law or fact common to the class"); (3) typicality ("the claims or defenses of the representative parties are typical of the claims or defenses of the class"); and (4) adequacy of representation ("the representative parties will fairly and adequately protect the interests of the class"). In addition to the subsection (a) prerequisites, class actions also must satisfy at least one of the subdivisions of Rule 42(b). Appellants assert that, contrary to the determinations made in the trial court's Order, this class action satisfies Rule 42(b)(3), which requires (1) common questions of law or fact to predominate over questions affecting only individual members and (2) class treatment to be "superior to other available methods for the fair and efficient adjudication of the controversy." Here, the Court considers whether the trial court abused its discretion in determining that Plaintiffs had not met their burden of establishing the predominance and superiority requirements. The affirmative defenses of acquiescence and ratification, raised here, would likely require inquiry into individual stockholders' actions or words--including but not limited to the tendering of some number of shares and a determination of the number of shares tendered versus those untendered--that might evidence ratification of or acquiescence in the merger. Because the proposed class members likely comprise a variety of shareholders exhibiting multiple combinations of shares that were sold, retained, and tendered--in a variety of quantities and timelines--it is probable that the different proposed class members' intentions and actions with respect to their shares would differ widely from one class member to another and, thus, require individual inquiries. Moreover, trial of appellees' affirmative defenses will likely require individual inquiries into other actions taken by shareholders that might demonstrate acquiescence, ratification, waiver, accord and satisfaction, or the application of equitable estoppel. The Court conclude that the trial court acted within its discretion in concluding that it could not determine that common issues would predominate over individual ones and, therefore, in refusing to certify the class. The Court additionally concludes that the trial court did not err in finding that it "cannot determine whether class action is superior to individual actions to achieve a fair and efficient adjudication of the controversy." On appeal, appellants cite to the record as indicating the "immense" amount of discovery that has already occurred, the desirability of a Texas forum, and the familiarity of the trial court with the facts and claims at issue. While some of these assertions may be true, the trial court was within its discretion to weigh the sole factor on which Plaintiffs focused their effort below-- whether class members have an interest in resolving common issues by class action--against class certification. There was a lack of evidence demonstrating the estimated number of potential class members and the estimated value of potential class members' damages. As the trial court observed, Plaintiffs' argument was premised on assumptions that Plaintiffs have not demonstrated to be true or even likely. Evidence in the record shows that there was an extraordinarily high trading volume during the tender period, which makes it unclear how many shareholders, if any, will fall into the category of "holding continuously" throughout the tender period. The evidence also fails to show how many of those continuously holding shareholders, if any, will be those who held only a small number of shares and would, therefore, face prohibitively expensive individual lawsuits. From the evidence in the record, it is equally possible that there are only a small number of shareholders who meet the class definition and that those few potential class members owned a large number of shares. On this record, the Court cannot conclude that the trial court abused its discretion in concluding that "it cannot determine whether class action is superior to individual actions to achieve a fair and efficient adjudication of the controversy." In sum, the Court finds that the trial court did not abuse its discretion in denying appellants' motion for class certification. Accordingly, the trial court's order denying Plaintiffs' renewed motion for class certification is affirmed. The appeals case is Raymond Boytim, Hugh Duncan, Walter Schwimmer, the Edward J. Goodman Life Income Trust and the Edward J. Goodman Generation Skipping Trust, Jeffrey Whalen, and Howard Weissberg, Appellants, Brigham Exploration Company, Ben M. Brigham, David T. Brigham, Harold D. Carter, Stephen P. Reynolds, Stephen C. Hurley, Hobart A. Smith, Scott W. Tinker, Statoil ASA, and Fargo Acquisition, Inc., Cross-Appellants, v. Brigham Exploration Company, Ben M. Brigham, David T. Brigham, Harold D. Carter, Stephen C. Hurley, Stephen P. Reynolds, Hobart A. Smith, Scott W. Tinker, Statoil ASA, and Fargo Acquisition, Inc., Appellees, Raymond Boytim, Hugh Duncan, Walter Schwimmer, the Edward J. Goodman Life Income Trust and the Edward J. Goodman Generation Skipping Trust, Jeffrey Whalen, and Howard Weissberg, Cross-Appellees, No. 03-17-00722-CV (Tex. App.). A copy of the Court's Memorandum Opinion dated Nov. 20, 2018 is available at https://bit.ly/2zG0pAq from Leagle.com. Michael D. Marin -- mmarin@boulettegolden.com -- Hamilton Lindley, Randall J. Baron, Mark S. Reich, Denis F. Sheils -- dsheils@kohnswift.com -- Marc L. Ackerman, James M. Ficaro, Willie Charles Briscoe, Samuel H. Rudman, Richard A. Maniskas, Katherine M. Ryan, Shane T. Rowley, Evan J. Smith, Patricia C. Weiser, Michael G. Capeci -- mcapeci@rgrdlaw.com -- for Jeffrey Whalen, Howard Weissberg, The Edward J. Goodman Life Income Trust and the Edward J. Goodman Generation Skipping Trust, Walter Schwimmer, Raymond Boytim and Hugh Duncan, Appellants. Nathan Palmer -- nrp@racinelaw.net -- Mackenzie Wallace -- Mackenzie.Wallace@tklaw.com -- Melissa M. Davis, Debora B. Alsup -- Debora.Alsup@tklaw.com -- Michael Warren Stockham, Timothy R. McCormick, for Stephen C. Hurley, Appellees. Timothy R. McCormick , Mackenzie Wallace, Michael Warren Stockham, Nathan Palmer, Timothy Eugene Hudson, Debora B. Alsup, Melissa M. Davis, for Stephen P. Reynolds, Brigham Exploration Company, Ben M. Brigham, Hobart A. Smith, Harold D. Carter, David T. Brigham, Appellees. Fields Alexander, Russell S. Post, Timothy R. McCormick, Parth S. Gejji, Debora B. Alsup, Timothy Eugene Hudson, Michael Warren Stockham, Christopher Cowan, for Scott W. Tinker, Statoil ASA and Fargo Acquisition, Inc., Appellees. BROOKDALE UNIVERSITY: K.B. Seeks Medical and Funeral Expenses ------------------------------------------------------------- EUGENNIE SPRINGER AS ADMINISTRATOR OF THE ESTATE OF K.B., AN INFANT (DECEASED), INDIVIDUALLY, AND BEHALF OF ALL THOSE SIMILARLY SITUATED, the Plaintiff, vs. BROOKDALE UNIVERSITY HOSPITAL AND MEDICAL CENTER; AND, MAIMONIDES MEDICAL CENTER, the Defendants, Case No.: 523379/2018 (N.Y. Sup. Ct., Nov. 19, 2018), seeks to recover damages in the form of medical and funeral expenses. According to the complaint, on or about January 27, 2017, decedent K.B., came under the medical care of Brookdale University Hospital & Medical Center. The Decedent K.B. sustained personal injuries as a result of the improper medical and surgical care rendered to her. The personal injuries sustained by decedent occurred as a result of the negligence on the part of the Defendant. Decedent, K.B., suffered conscious pain and suffering and resulting damages prior to her death and said conscious pain and suffering, damages and wrongful death were caused by the Defendants' negligence recklessness and/or wanton disregard of the safety and rights of others in an amount that exceeds the jurisdictional limits of all lower courts, the lawsuit says.[BN] Attorneys for Plaintiff: CELLINO & BARNES, P.C. 532 Broadhollow Road, Suite 107 Melville, NY 11747 Telephone: (800) 888-8888 BUCKEYE SHAKER: Faces Class Action Over Employees' Unpaid Wages --------------------------------------------------------------- According to an article posted by Sam Allard at Cleveland Scene, on Nov. 18, attorney Scott Perlmuter with the Tittle & Perlmuter law firm filed a class-action suit seeking unpaid wages for hourly employees who worked at the Buckeye Shaker Square Development Corporation this summer. The suit alleges that as many as 50 employees worked hours, primarily doing grass cutting and other manual labor, for which they received no compensation beginning in July, 2018. Further, the suit alleges that CDC's Executive Director John Hopkins, along with Councilman Ken Johnson and Johnson's assistant Garnell Jamison, officially "employers," transferred BSSDC's assets to themselves and their associates -- "insiders" -- in violation of the Ohio Fraudulent Transfer Act. These transfers, including exorbitant salaries that the suit claims are not commensurate with services performed, were made "with ill will toward the hourly employees, or with conscious disregard for their rights that had a great probability of causing substantial harm." The lead plaintiff in the case is Brian Coffey, who worked as an hourly employee for BSSDC for several years and through August, 2018. The suit comes on the heels of extensive reporting about Ward 4 Councilman Ken Johnson's presumed misconduct in office. Mark Naymik at Cleveland.com reported that residents were being unpaid for their labor at the CDC, whose federal funding had been cut off after a failure to produce recent audits. The mother of a 16-year-old said that Garnell Jamison, (who works for both Johnson and BSSDC), told her son to keep working despite the lack of funds. Another man said that he was still owed roughly $1,000 for work performed. This information appeared in a story about Mr. Johnson's monthly council reimbursements. He had been receiving $1,200 per month, the maximum allowable amount, continuously for 11 years. He had allegedly been paying a moonlighting city employee for "ward services" that included checking to make sure grass-cutting work was being performed. Any employee who worked for BSSDC this summer who is "similarly situated" -- i.e., who has not been paid for work performed -- may opt-in to the class-action suit. It's being pursued as a class-action suit because many of the claims are small enough that potential plaintiffs would be "reluctant to incur the substantial cost, expense, and risk of pursuing their claims individually." [GN] BUFFALO, NY: BMHA Residents Mull Class Action Over Housing Issues ----------------------------------------------------------------- Claudine Ewing, writing for 2 On Your Side, reports that people living in the Buffalo Municipal Housing Authority's Commodore Perry housing development are so frustrated, they took their concerns to City Hall. And they were loud in their demand for action. Several residents are dealing with lead, bedbugs, and mold in their homes. They say housing authority maintenance workers are not addressing the problem. Jacqueline Taylor says she is battling cancer, and while she can't say her cancer is linked to her conditions at home, she believes it is. Which is why she came to a Common Council committee meeting to speak out. "I've got lead and mold in my apartment," and she said there are problems with the window frames and flooding. Community activist Nate Boyd told 2 On Your Side a class action suit is in the works. "People who have tested positive for mold, we're reaching out to get others to join in. We have a place for them to get tested." He says a lack of maintenance and the claim of people with health problems will be the focus of the lawsuit. The Buffalo Common Council took the heat from tenants. And although it is not the Council that can make changes, they can press for them. This led to an interesting exchange between Mr. Boyd and Councilman Ulysees Wingo. Mr. Wingo accused Boyd of grandstanding and exploiting the pain of the residents. Boyd does not live in BMHA. Councilman Rasheed Wyatt said it's time for BMHA to listen to the tenants and address all of the concerns. Council President Darius Pridgen said, "We (the city) have a responsibility to keep fighting." Jeanette Knightner said she was moved from an apartment with mold to another apartment that had roaches. "We were living with garbage under our building." BMHA Executive Director Gillian Brown attended an afternoon meeting and said, "I do try to be responsive, but that is on us and we have to do a better job of reaching out to tenants and meeting with them on a more regular basis." He promised to take care of work orders that are called in as quickly as possible and get relocation offers. Ms. Brown said he has no documents that residents have been infected or sick because of mold. "These people in the BMHA Perry building 341 need to get tested for lead and mold. How come you don't demand that these people are moved right now? Excuse my passion, but these people are dying," said Mr. Boyd. [GN] CAFEPRESS INC: Beck Class Suit in Delaware Underway --------------------------------------------------- Cafepress Inc. disclosed in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2018, that it is facing a putative class action complaint filed by Henri Beck in Delaware. On October 29, 2018, Henri Beck, a purported stockholder of the Company, filed a putative class action complaint in the United States District Court for the District of Delaware, captioned Henri Beck v. CafePress Inc. et al., Civil Action No.1:18-cv-01694-UNA(the "Beck Complaint") against the Company and all members of the Board. Among other things, the Beck Complaint alleges that the Company, and the members of the Board, omitted to state material information in the Schedule14D-9, rendering it false and misleading and in violation of Sections 14(d)(4), 14(e) and 20(a) of the Exchange Act and SEC Rule14d-9. The alleged omissions concern certain standstill agreements, alleged discussions and negotiations between Snapfish and CafePress executive officers concerning continued employment and inputs and assumptions underlying the fairness opinion given by Needham & Company. In addition, the Beck Complaint alleges that the members of the Board acted as controlling persons of the Company within the meaning and in violation of Section 20(a) of the Exchange Act to influence and control the dissemination of the allegedly defective Schedule14D-9. The Beck complaint also alleges that the individual defendants breached their fiduciary duties by engaging in an inadequate sales process, agreeing to an inadequate price, agreeing to an excessive termination fee and no-solicitation and matching-offer provisions said to deter topping offers, and agreeing to receive cash for their stock and under their severance packages. The Beck Complaint seeks, among other things, an order that the action may be maintained as a class action, an order enjoining the Offer and the Merger, rescission of the Offer and the Merger if they have already been consummated or rescissory damages, a declaration that the Merger Agreement was agreed to in breach of fiduciary duties and therefore is unenforceable, an order directing the individual defendants to commence a better sales process designed to maximize shareholder value and to account for damages, and an award of costs, including attorneys' fees and experts' fees. CafePress Inc. operates as retailer of personalized products in the United States and internationally. The Company was formerly known as CafePress.com, Inc. and changed its name to CafePress Inc. in June 2011. CafePress Inc. was founded in 1999 and is headquartered in Louisville, Kentucky. CALLOOH CALLAY: Fails to Pay OT to Ironers, Rivera Suit Says ------------------------------------------------------------ MARILU RIVERA, individually and on behalf of all others similarly situated, Plaintiff v. CALLOOH CALLAY INC. d/b/a PRESSED CLEANERS; and JEFFREY CURTIS, Defendants, Case No. 2:18-cv-06042-JFB-GRB (E.D.N.Y., Oct. 29, 2018) is an action against the Defendants to recover minimum wages and overtime compensation for hours worked in excess of 40 hours per week. The Plaintiff Rivera was employed by the Defendants as ironers. Callooh Callay Inc. d/b/a Pressed Cleaners is a corporation organized and existing under the laws of New York. [BN] The Plaintiff is represented by: Roman Avshalumov, Esq. HELEN F. DALTON & ASSOCIATES, P.C. 69-12 Austin Street Forest Hills, NY 11375 Telephone: (718) 263-9591 CANADA: Judge Approves '60s Scoop Class Action Legal Fees --------------------------------------------------------- The Canadian Press reports that an Ontario justice who raised flags over the $75 million the federal government agreed to pay the lawyers who successfully pursued the '60s Scoop class action has approved the arrangement despite his misgivings. The legal fees, which the government is paying separately from the compensation to the survivors, became a flashpoint earlier this year when Ontario Superior Court Justice Edward Belobaba said they were far too high. Beyond the amount of the fees, Justice Belobaba was particularly upset a group of lawyers who had acted for Scoop victims in Federal Court were pocketing half the total even though they had done comparatively little work toward the settlement. Justice Belobaba has now, albeit reluctantly, signed off on his end. Given that a Federal Court judge approved the fee arrangement for the lawyers in that court, Justice Belobaba said it would be "unfair in the extreme" to award anything less to the two lawyers who spent the better part of a decade in Superior Court fighting for the Indigenous victims. "I cannot in good conscience limit class counsel in (the Ontario action), who truly deserve many millions more than class counsel in (the federal action)," Justice Belobaba said, adding he didn't understand why the Federal Court had acted as it did. That means Jeffery Wilson and Morris Cooper, who sued on behalf of Scoop victims for the loss of their cultural heritage, will get their $37.5-million share -- half the fee total. Mr. Cooper said on Nov. 19 he was pleased with the ruling and that Justice Belobaba had been "clearly very complimentary of our efforts." Separately, the last legal hurdle holding up payouts to the victims was also cleared with a deal over who pays for a failed appeal against the class-action settlement, documents show. The deal lets the lawyers off the hook for the costs of their unsuccessful effort on behalf of a small group unhappy with the $750-million settlement. In exchange, they have agreed to take no further steps to challenge the settlement or otherwise hold up its implementation. Earlier in November, the Federal Court of Appeal rejected the proposed appeal fronted by lawyer Jai Singh Sheikhupura with Vancouver-based Watson Goepel, which had been shut out of the $75 million awarded to the lawyers. Judge John Laskin decided evidence the applicants had filed in support was "inadequate in the extreme." While it is normal in litigation for the losing party to cover the legal costs incurred by the winners, the winning lawyers in this case took the unusual step of seeking costs personally from Mr. Sheikhupura given the serious misconduct allegations he and one of his clients had made against them. Judge Laskin rejected the accusations as unfounded and asked for submissions on the costs issue. The documents seen by The Canadian Press show the dispute has now been settled with both sides pulling back. "The applicants' solicitors will not seek to appeal nor seek leave to appeal the decision rendered by the Federal Court of Appeal in this matter on Nov. 8, 2018, or any other decision made in connection with the '60s Scoop settlement agreement," the deal states. "Counsel for the respondents will not seek costs against the applicants' solicitors." Mr. Sheikhupura did not respond to a request for comment. Kirk Baert, with one of the three law firms waiting to collect $37.5 million as their share of the class-action fees, said the parties advised Mr. Laskin on Nov. 19 of the costs agreement. The federal government had warned it would not proceed with payouts to Scoop survivors -- each stands to get as much as $50,000 -- until the legal squabbling had ended. The parties to the new deal have now made it explicit their dispute is done. "They will not take any further steps of any kind whatsoever to delay implementation of the settlement," the agreement states. The request to appeal the class-action agreement finalized over the summer rather than opt out -- fewer than a dozen class members did so -- came from 11 claimants who said they were Scoop victims, although two dropped out of the proceeding. Among other things, they alleged they were excluded from the process that led to court approval of the long-fought settlement for the harms done when they, as children, were taken from their Indigenous families and placed with non-Indigenous ones. They also expressed unhappiness over the fees awarded to the lawyers who negotiated the deal. Mr. Laskin rejected their arguments. [GN] CANCER GENETICS: Bid to Dismiss NJ Securities Suit Due Dec. 31 -------------------------------------------------------------- Cancer Genetics, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 19, 2018, for the quarterly period ended September 30, 2018, that defendants' motion to dismiss the amended complaint entitled, In re Cancer Genetics, Inc. Securities Litigation, is due to be filed on or before December 31, 2018. On April 5, 2018 and April 12, 2018, purported stockholders of the Company filed nearly identical putative class action lawsuits in the U.S. District Court for the District of New Jersey, against the Company, Panna L. Sharma, John A. Roberts, and Igor Gitelman, captioned Ben Phetteplace v. Cancer Genetics, Inc. et al., No. 2:18-cv-05612 and Ruo Fen Zhang v. Cancer Genetics, Inc. et al., No. 2:18-06353, respectively. The complaints allege violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and SEC Rule 10b-5 based on allegedly false and misleading statements and omissions regarding our business, operational, and financial results. The lawsuits seek, among other things, unspecified compensatory damages in connection with purchases of the company's stock between March 23, 2017 and April 2, 2018, as well as interest, attorneys' fees, and costs. On August 28, 2018, the Court consolidated the two actions in one action captioned In re Cancer Genetics, Inc. Securities Litigation and appointed shareholder Randy Clark as the lead plaintiff. On October 30, 2018, the lead plaintiff filed an amended complaint, adding Edward Sitar as a defendant and seeking, among other things, compensatory damages in connection with purchases of CGI stock between March 10, 2016 and April 2, 2018. Defendants' motion to dismiss the amended complaint is due to be filed on or before December 31, 2018. Cancer Genetics said, "The Company is unable to predict the ultimate outcome of these actions and therefore cannot estimate possible losses or ranges of losses, if any." Cancer Genetics, Inc. develops, commercializes, and provides molecular and biomarker-based tests and services in the United States, Europe, and Asia. Cancer Genetics, Inc. was founded in 1999 and is based in Rutherford, New Jersey. CARILLON TOWER: Sued for Securities Fraud, Fiduciary Duty Breach ---------------------------------------------------------------- Annabelle Yao, on behalf of herself and all others similarly situated, Plaintiffs, v. Carillon Tower/Chicago LP; Forefront EB-5 Fund (ICT) LLC; Tizi LLC d/b/a Local Government Regional Center of Illinois; TD Bank N.A.; Symmetry Property Development II LLC; Fordham Real Estate LLC; and Jeffrey L. Laytin, Defendants, Case No. 1:18-cv-07865 (N.D. Ill., November 28, 2018) is a class action complaint against Defendants for securities fraud, breach of contract, and breach of fiduciary duty. Plaintiff Annabelle Yao is one of ninety Chinese investors who signed investment documents totaling $49.5 million dollars to make a loan to "Carillon Tower", a to-be-realized-in-the-future 42-story tower at Superior and Wabash, housing a 200-unit Hilton hotel, 154 apartment units, a 225-seat Gibson's Restaurant, and parking spaces for 154 vehicles. The Chinese invested in 2015, but Carillon Towers was never built. It was rejected by the Alderman after a neighborhood outcry, and plans were never submitted to the Commissioner of Planning and Development. The Chinese investors never got their money back; in fact, no one will tell them where it is, says the complaint. Plaintiff Ying Yao is a Chinese national residing in China. Carillon Tower/Chicago LP is a New York limited partnership. Forefront EB-5 Fund (ICT) LLC is a New York limited liability company acting as the general partner of the LP. Tizi LLC is an Illinois limited liability company doing business under the assumed name of Local Government Regional Center of Illinois, a regional center authorized to help developers raise money from foreigners under the EB-5 program. TD Bank N.A. is a national banking association with a principal place of business in Cherry Hill, New Jersey, and the escrow agent who, under the terms of the Offering, was required to hold the investors' money until certain conditions were satisfied. Symmetry Property Development II LLC is a New York limited liability company that, under the terms of the Offering, was to be the co-developer of the Project. Fordham Real Estate LLC is an Illinois limited liability company that, under the terms of the Offering, was to be the co-developer (with Symmetry) to develop the Project. Defendant Jeffrey L. Laytin is the managing member of the GP and thereby had control of the GP. He is also listed in SEC filings as the manager of Symmetry, the co-developer of the Project.[BN] The Plaintiff is represented by: Glen J. Dunn, Jr., Esq. Glen J. Dunn & Associates, Ltd. 221 N. LaSalle Street, Suite 1414 Chicago, Illinois 60601 Phone: (312) 880-1010 Email: gdunn@gjdlaw.com - and - Douglas Litowitz, Esq. 413 Locust Place Deerfield, IL 60015 Phone: (312) 622-2848 Email: Litowitz@gmail.com CARLZ ZEISS: Fails to Pay for Overtime, Coleman Says ---------------------------------------------------- LORI COLEMAN, individually, and on behalf of other members of the general public similarly situated, the Plaintiff, vs. CARLZ ZEISS MEDITECH, INC., an unknown business entity; and DOES 1 through 100, inclusive, the Defendants, Case No.: RG18927500 (Cal. Super. Ct., Nov. 5, 2018), alleges that Defendants failed to pay overtime, meal period premiums and minimum wages pursuant to the California Labor Code. According to the complaint, the Defendants, jointly and severally, employed Plaintiff as an hourly-paid, non-exempt employee, from approximately February 2013 to approximately February 2016, in the State of California, County of San Diego. Defendants hired Plaintiff and the other class members, classified them as hourly-paid or non-exempt employees, and failed to compensate them for all hours worked and missed meal periods and/or rest breaks. The Plaintiff and the other class members worked over 8 hours in a day and/or 40 hours in a week during their employment with Defendants. The Plaintiff alleges that Defendants engaged in a pattern and practice of wage abuse against their hourly-paid or non-exempt employees within the State of California. This pattern and practice involved, failing to pay them for all regular and/or overtime wages earned and for missed meal periods and rest breaks in violation of California law, the lawsuit says.[BN] Attorneys for Plaintiff: Edwin Aiwazian, Esq. LAWYERS for JUSTICE, PC 410 West Arden Avenue, Suite 203 Glendale, CA 91203 Telephone: (818) 265 1020 Facsimile: (818) 265 1021 CARRIZO OIL: McLelland Seeks Unpaid Overtime -------------------------------------------- SKIPPER MCLELLAND, Individually and For Others Similarly Situated, the Plaintiff, v. CARRIZO OIL & GAS, INC, the Defendant, Case No. 4:18-cv-04214 (S.D. Tex., Nov. 6, 2018), seeks to recover unpaid overtime wages and other damages under the Fair Labor Standards Act. According to the complaint, Carrizo employs oilfield personnel, like McLelland, to carry out its work. McLelland, and the other workers like him, were typically scheduled for 12-hour shifts, 7 days a week, for weeks at a time. But Carrizo does not pay all of these workers overtime for hours worked in excess of 40 hours in a single workweek. Instead of paying overtime as required by the FLSA, Carrizo pays these workers a day-rate, without a guaranteed salary or overtime pay, and classifies them as independent contractors, the lawsuit says.[BN] Attorneys for Plaintiff: Michael A. Josephson, Esq. Andrew Dunlap, Esq. Richard M. Schreiber, Esq. JOSEPHSON DUNLAP, LLP 11 Greenway Plaza, Suite 3050 Houston, Texas 77046 Telephone: 713 352-1100 Facsimile: 713 352-3300 E-mail: mjosephson@mybackwages.com adunlap@mybackwages.com rschreiber@mybackwages.com - and - Richard J. (Rex) Burch, Esq. BRUCKNER BURCH , PLLC 8 Greenway Plaza, Suite 1500 Houston, TX 77046 Telephone: 713 877-8788 Facsimile: 713 877-8065 E-mail: rburch@brucknerburch.com CENTENE MANAGEMENT: Court Narrows Claims in C. Harvey's CPA Suit ---------------------------------------------------------------- In the case, CYNTHIA HARVEY, individually and on behalf of all others similarly situated, Plaintiff, v. CENTENE MANAGEMENT COMPANY LLC and COORDINATED CARE CORPORATION, Defendants, Case No. 2:18-CV-00012-SMJ (E.D. Wash.), Judge Salvador Mendoza, Jr. of the U.S. District Court for the Eastern District of Washington granted in part and denied in part the Defendants' motion to dismiss Harvey's class action complaint alleging breach of contract and violation of the Consumer Protection Act ("CPA"), chapter 19.86 of the Revised Code of Washington. Harvey, a purchaser of the Defendants' Ambetter health insurance policy, claims the Defendants misrepresented and made material omissions regarding the coverage actually provided by their Ambetter policy, which did not deliver the insurance services for which the Washington State Office of the Insurance Commissioner approved the filed rates. On Aug. 29, 2018, Harvey filed a Second Amended Complaint on behalf of herself and a putative class of Ambetter policyholders alleging the Defendants breached their contracts and violated the CPA by misrepresenting and making material omissions regarding the coverage actually provided by their Ambetter policy. The complaint alleges the Defendants target low-income customers who qualify for substantial government subsidies while simultaneously providing coverage well below both what is required by law and what they represent to customers. The provider network the Defendants represented was available to Ambetter policyholders was in material measure, if not largely, fictitious. In addition, the members have difficulty finding -- and in many cases cannot find -- medical providers who will accept Ambetter insurance. The Defendants misrepresent the number, location, and existence of purported providers by listing physicians, medical groups, and other providers as participants in their network and by listing nurses and other non-physicians as primary care providers. The Defendants have even copied entire physician directories into their purported network lists for some areas, and have, in fact, listed medical students as part of their primary care provider network. They listed those providers as being part of their network even though those providers were not actually part of the provider network for Ambetter. The complaint alleges the Defendants fail to disclose the true limitations of the coverage provided by its Ambetter policies. The Defendants' sales materials omit the fact that they do not adequately monitor their network of providers. The Ambetter documentation also fails to disclose that the Defendants do not consistently provide access to medically necessary care on a reasonable basis without charging for out-of-network services. Additionally, the Defendants routinely deny coverage for medical services, claiming that the provider did not show sufficient diagnostic evidence that the care was necessary. As a result of their failing to pay providers for legitimate claims, a large number of medical providers reject Ambetter insurance, further reducing the provider network available to Ambetter's members. The Defendants' provider network was and is so limited that holders of Ambetter policies would have to travel long distances to see a medical provider, if one legitimately within the Defendants' network could be found at all. Harvey purchased the Defendants' Ambetter policy in December 2016. In doing so, she relied in part on the Defendants' Ambetter plan brochure and plan summary. These documents represent that the healthcare providers listed in the Defendants' online directory are in network. The documents also purport to describe generally what services are covered and what are not, but are misleading by failing to indicate how few in-network providers would be available. Hrvey seeks compensatory or actual damages equal to: i. Benefit of the Bargain: a refund of the entire premium for the purchase of insurance that was not as represented and contracted for in order to restore Plaintiff and the Class to their position prior to purchasing the Ambetter policy; and/or ii. Partial Refund: the difference in value between the value of the policy as represented and contracted for and the value of the policy as actually accepted and delivered; and/or iii. Out-Of-Pocket Expenses: damages incurred as a result of having to pay for services that should have been covered by the Ambetter policy. The complaint alleges both Centene Management and Coordinated Care are wholly-owned subsidiaries of Centene Corporation, which is not a defendant to the civil action. Under a management services agreement between them, Centene Management effectuates, controls and handles the operations of Coordinated Care. Thus, Coordinated Care is a shell and alter ego of Centene Management, and the two operate so in concert and together in a common enterprise and through related activities so that the actions of one may be imputed to the other. The Defendants moved to dismiss Harvey's complaint on Sept. 12, 2018, arguing that Harvey fails to state a claim upon which relief can be granted. Harvey responded in opposition to the motion and the Defendants replied in support of it. The Court held a hearing regarding the motion on Nov. 20, 2018. Judge Mendoza granted in part and denied in part the Defendants' Motion to Dismiss Second Amended Complaint. He dismissed without prejudice the breach-of-contract claim against Centene Management. He concludes that Harvey states a facially plausible CPA claim against Centene Management but she fails to state a facially plausible breach-of-contract claim against it. While he dismisses Harvey's breach-of-contract claim against Centene Management, it does so without prejudice because Harvey requests leave to amend the complaint and expects discovery to reveal more details regarding the ways in which the two corporate entities interacted, comingled, or disregarded the corporate form. For the breach-of-contract claim against Coordinated Care, the Judge finds that the proper measure of compensatory damages based on the benefit-of-the-bargain rule is a sum equivalent to performance of the contract that places the injured party in the position he or she would occupy if the contract had been fulfilled rather than breached. He concludes that Harvey alleges a facially plausible breach-of-contract claim. Moreover, he concludes Harvey bases this claim on viable theories of damages that are familiar under Washington state law—compensatory damages equal to the benefit of the bargain had the contract not been breached, the difference between the contract price and the reduced value of the services received, or the out-of-pocket expenses incurred as a result of the breach. Harvey needs not allege precise figures of premiums paid and out-of-pocket expenses incurred for Coordinated Care to receive fair notice of what damages it allegedly caused. The Plaintiff will amend the complaint to make the correction no later than Nov. 30, 2018. All other claims may proceed as alleged. The Clerk's Office is directed to enter the Order and provide copies to all the counsel. A full-text copy of the Court's Nov. 21, 2018 Order is available at https://is.gd/jXxPmH from Leagle.com. Cynthia Harvey, individually and on behalf of all others similarly situated, Plaintiff, represented by Elizabeth A. Adams -- eadams@terrellmarshall.com -- Terrell Marshall Law Group PLLC, Jennifer Rust Murray -- jmurray@terrellmarshall.com -- Terrell Marshall Law Group PLLC, Seth Lesser, Klafter Olsen & Lesser LLP, pro hac vice & Beth E. Terrell -- bterrell@terrellmarshall.com -- Terrell Marshall Law Group PLLC. Centene Management Company LLC, Defendant, represented by J. Scott Pritchard -- scott.pritchard@stoel.com -- Stoel Rives LLP & Maren Roxanne Norton -- maren.norton@stoel.com -- Stoel Rives LLP. Coordinated Care Corporation, Defendant, represented by Brendan V. Sullivan, Jr. -- bsullivan@wc.com -- Williams & Connolly, pro hac vice, Steven M. Cady -- scady@wc.com -- Williams & Connolly, pro hac vice, J. Scott Pritchard -- scott.pritchard@stoel.com -- Stoel Rives LLP & Maren Roxanne Norton -- maren.norton@stoel.com -- Stoel Rives LLP. CENTURYLINK INC: Averts Class Action Over 401(k) Plan ----------------------------------------------------- BloombergLaw reports that a lawsuit challenging how CenturyLink Inc. managed its 401(k) plan should be dismissed, a federal magistrate judge recommended. The proposed class action, which could involve the retirement benefits of nearly 50,000 investors, was based on "unsupported and conclusory" allegations, the judge said in a Nov. 19 report. The complaint didn't offer facts supporting the idea that CenturyLink's in-house investment management company was unreasonable to use multiple fund managers for one of its 401(k) investments. [GN] CHAPARRAL ENERGY: Appeal in Naylor Farms Class Action Underway -------------------------------------------------------------- Chaparral Energy, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 13, 2018, for the quarterly period ended September 30, 2018, that the company is awaiting a ruling by the U.S. Court of Appeals for the Tenth Circuit in the class action lawsuit entitled, Naylor Farms, Inc., individually and as class representative on behalf of all similarly situated persons v. Chaparral Energy, L.L.C. On June 7, 2011, an alleged class action was filed against the company in the United States District Court for the Western District of Oklahoma ("Naylor Trial Court") alleging that the company improperly deducted post-production costs from royalties paid to plaintiffs and other royalty interest owners as categorized in the petition from crude oil and natural gas wells located in Oklahoma. Plaintiffs indicated they seek damages in excess of $5,000, the majority of which would be comprised of interest and may increase with the passage of time. The purported class includes non-governmental royalty interest owners in oil and natural gas wells the company operated in Oklahoma. The plaintiffs have alleged a number of claims, including breach of contract, fraud, breach of fiduciary duty, unjust enrichment, and other claims and seek termination of leases, recovery of compensatory damages, interest, punitive damages and attorney fees on behalf of the alleged class. The company responded to the Naylor Farms petition, denied the allegations and raised arguments and defenses. Plaintiffs filed a motion for class certification in October 2015. In addition, the plaintiffs filed a motion for summary judgment asking the court to determine as a matter of law that natural gas is not marketable until it is in the condition and location to enter an interstate pipeline. On May 20, 2016, the company filed a Notice of Suggestion of Bankruptcy with the Naylor Trial Court. As of November 9, 2018, the Tenth Circuit has not ruled. On January 17, 2017, the Naylor Trial Court certified a modified class of plaintiffs in the Naylor Trial Court with oil and gas leases containing specific language. The modified class constitutes less than 60% of the leases the plaintiffs originally sought to certify. After additional briefing on the subject, on April 18, 2017, the Naylor Trial Court issued an order certifying the class to include only claims relating back to June 1, 2006. On May 1, 2017, the company filed a Petition for Permission to Appeal Class Certification Order with the Tenth Circuit Court of Appeals (the "Tenth Circuit"), which was granted. Oral arguments were held on March 20, 2018. No further updates were provided in the Company's SEC report. Chaparral Energy, Inc. engages in the acquisition, exploration, development, production, and operation of onshore oil and natural gas properties primarily in Oklahoma, the United States. The company sells crude oil, natural gas, and natural gas liquids primarily to refineries and gas processing plant. The company was founded in 1988 and is headquartered in Oklahoma City, Oklahoma. CHIPOTLE MEXICAN: To Furnish Class Contact Info in Guzman Suit -------------------------------------------------------------- In the case, ADRIANA GUZMAN, et al., Plaintiffs, v. CHIPOTLE MEXICAN GRILL, INC., et al., Defendants, Case No. 17-cv-02606-HSG (KAW) (N.D. Cal.), Magistrate Judge Kandis A. Westmore of the U.S. District Court for the Northern District of California ordered the Defendants to furnish the contact information for a random sample of 2,000 potential class members in response to the Plaintiff's interrogatory within 14 days of the Order. Plaintiffs Guzman, Juan Pablo Aldana Lira, and Jonathan Poot filed the instant putative class action, alleging that Defendants Chipotle Mexican Grill, Inc. and Chipotle Services, LLC discriminated against their employees of Hispanic race and/or Mexican national origin. On Nov. 2, 2018, the parties filed a joint letter concerning the Plaintiffs' interrogatory seeking a class list of all the putative class members, including their name, job title(s), dates of employment, employment location(s), and last known contact information. The Plaintiffs seek identifying and contact information about the putative class members. The putative class is defined as all current and former hourly employees of Chipotle, who are Hispanic and/or of Mexican national origin, and worked at Chipotle restaurant locations in California. The Defendants have estimated that approximately 43,000 people employed in their over 400 California restaurants between Nov. 14, 2011 and Oct. 12, 2018 self-identified as Latino or Hispanic. The Defendants make four arguments opposing the Plaintiffs' discovery request. First, they argue that the Plaintiffs' request is overbroad because it seeks information on all of their current and former hourly employees of Hispanic and/or Mexican national origin employed in California. Second, they contend that the Plaintiffs have failed to show that discovery is likely to substantiate the class claims, relying on Doninger and Mantolete. Third, the Defendants argue that class discovery should be limited to the locations at which Plaintiffs work because the Plaintiffs have not produced evidence of companywide violations. Finally, they contend that the Court should only require a statistically significant sample. As an initial matter, Magistrate Judge Westmore notes that the joint discovery letter does not comply with the Court's standing order. The standing order requires that the parties draft and file their joint discovery letter within five business days of the lead trial counsels' meet and confer session. The parties met and conferred on Oct. 3 and 9, 2018, but did not file their letter until Nov. 2, 2018. Rather than terminate the discovery letter, however, she orders the parties to review the standing order prior to filing any other discovery letters. Future failure to comply with the standing order in its entirety may result in the Court terminating the discovery letter. The putative class is around 43,000 individuals in over 500 locations; a 20% sample would be 8,600 individuals. Given the large size of the putative class, he Magistrate finds that a sample of 2,000 individuals (approximately 5%) is appropriate. The Defendants will provide the names, job title(s), dates of employment, employment location(s), and last known contact information (including address, telephone number, and e-mail address) of each member of the ample, which will be obtained randomly. Furthermore, the Plaintiff's counsel is instructed to inform each potential class member that 1) he or she has a right not to talk to counsel, and 2) that, if he or she elects not to talk to counsel, the Plaintiff's counsel will terminate the contact and not contact them again. For the reasons she stated, Magistrate Judge Westmore directed the Defendants to furnish the contact information for a random sample of 2,000 potential class members in response to the Plaintiff's interrogatory within 14 days of the Order. A full-text copy of the Court's Nov. 21, 2018 Order is available at https://is.gd/IboPWW from Leagle.com. Adriana Guzman, Juan Pablo Aldana Lira & Jonathon Poot, on behalf of themselves and all others similarly situated, Plaintiffs, represented by Carolyn Hunt Cottrell -- ccottrell@schneiderwallace.com -- Schneider Wallace Cottrell Konecky Wotkyns LLP, Adalberto Corres-Morales -- adalberto@e-licenciados.com -- Villegas Carrera, LLP, David Christopher Leimbach, Schneider Wallace Cottrell Konecky Wotkyns LLP, Karen C. Carrera -- karen@e-licenciados.com -- Villegas Carrera, LLP, Mira Pearl Karageorge, Schneider Wallace Cottrell Konecky Wotkyns LLP, Ori Edelstein, Schneider Wallace Cottrell Konecky Wotkyns & Virginia Villegas -- virginia@e-licenciados.com -- Villegas Carrera, LLP. Chipotle Mexican Grill, Inc., Defendant, represented by Nima Darouian -- ndarouian@messner.com -- Messner Reeves LLP, Amish Ashok Shah -- ashah@messner.com -- Messner Reeves LLP, Charles C. Cavanagh -- ccavanagh@messner.com -- Messner Reeves LLP & Kathleen June Mowry -- kmowry@messner.com -- Messner Reeves, pro hac vice. CHIPOTLE SERVICES, LLC, Defendant, represented by Charles C. Cavanagh, Messner Reeves LLP, Nima Darouian, Messner Reeves LLP, Amish Ashok Shah, Messner Reeves LLP & Kathleen June Mowry, Messner Reeves. CIRCLE K: Court Extends Deadline to File Bid for Settlement OK -------------------------------------------------------------- The United States District Court for the District of Nevada issued an Order extending Deadline in which to provide the Court with the parties' Joint Motion for Class Action Settlement Approval and related documents in the case captioned CHARLES GRAHL, individually and on behalf of all others similarly situated, Plaintiff, v. CIRCLE K STORES, INC., a foreign corporation; DOES I through V, inclusive; and ROE corporations I through V, inclusive, Defendants. Case No. 2:14-cv-00305-VCF. (D. Nev.). A full-text copy of the District Court's November 19, 2018 Order is available at https://tinyurl.com/y7udraqa from Leagle.com. Charles Grahl, Plaintiff, represented by Andrew L. Rempfer, Law Offices of Steven J. Parsons, Anthony M. Carter -- acarter@tostrudlaw.com -- Tostrud Law Group, P.C., pro hac vice, Erik H. Langeland, Erik H. Langeland, P.C., pro hac vice, Jon A. Tostrud -- jtostrud@tostrudlaw.com -- Tostrud Law Group, P.C., pro hac vice, Joseph Nathan Mott, Law Offices of Steven J. Parsons, Scott E. Lundy, Law Offices of Steven J. Parsons & Steven J. Parsons, Law Office Of Steven J. Parsons. Circle K Stores, Defendant, represented by Anthony L. Martin -- anthony.martin@ogletree.com -- Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Dana B. Salmonson -- dana.salmonson@ogletreedeakins.com -- Ogletree Deakins Nash Smoak & Stewart, P.C., Patrick F. Hulla -- Ogletree Deakins, pro hac vice & Jill Garcia -- jill.garcia@ogletree.com -- Ogletree, Deakins, Nash, Smoak & Stewart, P.C.. CLIFFORD PICKNEY: District Court Tosses McKinney Suit ----------------------------------------------------- District Judge Solomon Oliver, Jr. dismissed the case captioned D'ORO R. McKINNEY, Pro Se, Plaintiff, v. CLIFFORD PICKNEY, SHERIFF, et al., Defendants, Case No. 1:18 CV 2429 (N.D. Ohio). Pro se Plaintiff D'Oro R. McKinney, a detainee in the Cuyahoga County Jail, has filed a "class action" Complaint against Cuyahoga County Sheriff Clifford Pickney, Director of Regional Corrections Kenneth Mills, and the "Cuyahoga County Sheriffs Department." The Complaint alleges of a number of conditions in the Jail to which the Plaintiff contends detainees are generally subjected, including "Red Zone" lock-downs, inadequate mental and physical health resources, food, access to the law library, sleeping and lodging arrangements, and other, generally inadequate "due process" and "safety" protections. The Plaintiff purportedly filed the Complaint on behalf of himself and multiple other detainees in the Jail, also identified as plaintiffs. He seeks "relief" from the alleged conditions, apparently including monetary damages. The Court holds that the Plaintiff's Complaint must be dismissed pursuant to section 1915A. First, to the extent the Plaintiff purports to bring this action on behalf of anyone other than himself, his Complaint must be dismissed. The Plaintiff "lacks standing to assert the constitutional rights of other prisoners," and pro se prisoners are not permitted to bring class action lawsuits concerning prison conditions. Second, although the Plaintiff has standing to assert alleged violations of his own constitutional rights, his Complaint fails to allege facts suggesting he has a plausible claim. All of his complaints regarding conditions in the Jail are generalized. No facts are alleged in his Complaint suggesting that, or how, he personally was deprived of a right secured by the Constitution or laws of the United States. Further, the Complaint does not allege facts suggesting that, or how, any named Defendant was specifically involved in such a deprivation. A copy of the Court's Memorandum Opinion and Order dated Nov. 20, 2018 is available at https://bit.ly/2KVHy8P from Leagle.com. D'oro R. McKinney, Plaintiff, pro se. COFFEE MEETS BAGEL: Rrapo Sues over Dating Referral Services ------------------------------------------------------------ PANDI RRAPO, individually and on behalf of a class of similarly situated individuals, the Plaintiff, vs. COFFEE MEETS BAGEL, INC., a Delaware corporation, the Defendant, Case No.: 2018CH13834 (Il.. Cir. Ct., Cook Cty, Nov. 5, 2018), seeks redress for CMB's violations of the Illinois Dating Referral Services Act. Plaintiff contends that CMB's violation of the DRSA constitutes unlawful and deceptive acts under the Illinois Consumer Fraud and Deceptive Business Practices Act. As a result of CMB's conduct, Plaintiff and other consumers who paid for CMB Premium or CMB Beans were deprived of the ability to exercise their statutory rights to cancel and obtain a refund. Plaintiff, on his own behalf, and on behalf of a class of purchasers in Illinois, seeks statutory, equitable, injunctive, and monetary relief. According to the complaint, Coffee Meets Bagel, Inc. owns and operates a dating service, primarily through a smartphone application called "Coffee Meets Bagel." CMB promotes its smartphone application through its website, https://site.coffeemeetsbagel.com, as well as through the Apple iOS App Store and the Google Play Store. The interface to use the CMB dating services is available through the iOS CMB mobiles application and the Android CMB mobile application. CMB advertises the CMB App. as being an effective way of meeting potential romantic partners by using a data-driven algorithm to match users based on their interests, location, and other criteria. Users are shown a profile of another user who uses the CMB App., which includes their pictures, occupation, and interests. CMB provides access to the CMB App. for free to anyone who signs up ("CMB Free Users"). A CMB Free User signs up via an email address or by connecting their Facebook account. Then, they are prompted to create a profile, directing them to upload photos of themselves, provide information about their career and education, and to list their interests. CMB also offers a paid, premium membership to CMB Free Users which gives users advanced features, such as activity reports of other users and the ability to see when a message has been "read" by another user. Both CMB premium members ("CMB Members") and CMB Free Users (collectively, "CMB Users") see the same profiles of other CMB Users in the CMB App. When shown a profile, the CMB User can either "pass" or "like" the profile. After a selection is made, the next profile in the queue is shown to the CMB User. Approximately 20 profiles are queued up for a CMB User everyday at noon. When two CMB Users have liked each other's profiles, a match is made and both CMB Users are able to chat with each other within the CMB App. A CMB Member has the added ability to see an "Activity Report" on a CMB User's profile. This Activity Report contains information such as how fast a particular CMB User responds to messages and how often they use the CMB App. CMB Members also gain the ability to see if a message has been "read" by the other CMB User when in the chat window of the CMB App. Additionally, CMB sells a digital currency called beans ("CMB Beans"), which can co be used for various in-app purchases through the CMB App. and can be purchased by both CMB Members and CMB Free Users. Potential purchases that can be made with CMB Beans include seeing if a dating profile has mutual friends with the CMB User and for "liking" profiles outside of the daily queue in the "Discover" section of the CMB App. Purchasing a CMB Premium subscription or purchasing CMB Beans is done within the CMB App. A CMB User is not presented with the terms of the agreement when they pay. They are instead directed to the CMB website to read the Terms and Conditions (https://coffeemeetsbagel.com/terms). The Terms and Conditions webpage does not expressly contain the required three-day cancellation provision, and CMB does not allow any refunds of CMB Premium subscription purchases, which is in violation of the DRSA and renders all contracts for CMB Premium subscriptions void and unenforceable, the lawsuit says.[BN] Attorneys for Plaintiff and the Putative Class: Eugene Y. Turin, Esq. David L. Gerbie, Esq. MCGUIRE LAW, P.C. 55 W. Wacker Drive, 9th Fl. Chicago, IL 60601 Telephone: (312) 893-7002 Facsimile: (312) 275-7895 E-mail: eturin@mcgpc.com dgerbie@mcgpc.com COMCAST CABLE: Blumenthal Nordrehaug Files Class Action ------------------------------------------------------- The San Francisco employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP filed a class action lawsuit against Comcast Cable Communications Management, LLC, alleging that the company failed to lawfully calculate and pay their employees the correct overtime. The class action lawsuit against Comcast is currently pending in the San Joaquin County Superior Court, Case No. STK-CV-UOE-2018-13207. The class action lawsuit alleges that Plaintiff and other California Class Members are not provided with overtime compensation and other benefits required by law as a result of being classified as "exempt" by COMCAST. The Complaint claims that as a matter of company policy, practice, and procedure, COMCAST has uniformly, unlawfully, unfairly and/or deceptively classified every Account Executive as exempt from overtime pay and other related benefits, fails to pay the required overtime compensation and otherwise fails to comply with all applicable labor laws with respect to these Account Executives. For more information about the class action lawsuit against Comcast Cable Communications Management, LLC, call (800) 568-8020 to speak to an experienced California employment attorney today. Blumenthal Nordrehaug Bhowmik De Blouw LLP, is a labor law firm with law offices located in San Diego County, Riverside County, Los Angeles County, Sacramento County, and San Francisco County. The firm has a statewide practice of representing employees on a contingency basis for violations involving unpaid wages, overtime pay, discrimination, harassment, wrongful termination and other types of illegal workplace conduct. [GN] COMMAND SECURITY: Franchi Balks at Merger Deal with Prosegur SIS ---------------------------------------------------------------- ADAM FRANCHI, On Behalf of Himself and All Others Similarly Situated, the Plaintiff, vs. COMMAND SECURITY CORPORATION, THOMAS P. KIKIS, CRAIG P. COY, JAMES P. HEFFERNAN, JERRY L. JOHNSON, JANET L. STEINMAYER, and MARK J. SULLIVAN, the Defendants, Case No.: 655494/2018 (N.Y. Sup. Ct., Nov. 5, 2018), seeks to enjoin a proposed transaction announced on September 18, 2018, pursuant to which Command Security will be acquired by Prosegur SIS (USA) Inc. and Crescent Merger Sub. According to the complaint, on September 18, 2018, the Board caused Command Security to enter into an agreement and plan of merger with Prosegur. Pursuant to the terms of the Merger Agreement, stockholders of Command Security will receive $2.85 in cash for each share of Command Security they own. In approving the Merger Agreement, the Individual Defendants breached their fiduciary duties to plaintiff and the Class. Command Security aided and abetted the Individual Defendants' breaches of fiduciary duties. Compounding the unfairness of the Proposed Transaction, defendants issued materially incomplete and misleading disclosures in the proxy statement filed with the United States Securities and Exchange Commission on October 5, 2018, the lawsuit says.[BN] Attorneys for Plaintiff: Timothy J. MacFall, Esq. Seth D. Rigrodsky, Esq. Timothy J. MacFall, Esq. Gina M. Serra, Esq. RIGRODSKY & LONG, P.A. 825 East Gate Boulevard, Suite 300 Garden City, NY 11530 Telephone: (516) 683-3516 E-mail: sdr@rl-legal.com tjm@rl-legal.com gms@rl-legal.com - and - Richard A. Maniskas, Esq. RM LAW, P.C. 1055 Westlakes Drive, Suite 300 Berwyn, PA 19312 Telephone: (484) 324-6800 E-mail: rm@maniskas.com CONTRACTOR MANAGEMENT: Wage & Hour Suit Sent to Arbitration ----------------------------------------------------------- Chief District Judge Nancy Torresen granted Defendants Contractor Management Services, LLC and 3RD Party Logistics ME, LLC's motions to compel arbitration in the case captioned ROBERT CURTIS and ROBERT LOWELL on behalf of themselves and all others similarly situated, Plaintiffs, v. CONTRACTOR MANAGEMENT SERVICES, LLC; 3RD PARTY LOGISTICS ME, LLC; and MICHAEL WILLIAMS, Defendants, Docket No. 1:15-cv-487-NT (D. Me.). Plaintiffs Robert Curtis and Robert Lowell filed the putative class and collective action against Defendants 3PL and Michael Williams and Defendant CMS to assert federal and state wage and hour law violations and related state-law tort claims. The Defendants assert that the Plaintiffs' claims must be submitted to arbitration under the binding terms of the Defendants' respective agreements with the Plaintiffs. "A party seeking to compel arbitration must demonstrate that a valid agreement to arbitrate exists, that the movant is entitled to invoke the arbitration clause, that the other party is bound by that clause, and that the claim asserted comes within the clause's scope.'" Through their motions, the Defendants have presented signed agreements between themselves and the Plaintiffs that purport to bind both parties and that allow either party to invoke arbitration, and the Defendants have asserted that the Plaintiffs' claims come within the Arbitration Provisions' scope. With respect to 3PL, the Plaintiffs contend that they cannot be compelled to arbitrate under the 3PL Agreement because they did not sign it and no valid contract was ever formed. The Plaintiffs further argue that the 3PL Agreement's arbitration provisions are invalid because enforcing them would prevent the Plaintiffs from effectively vindicating their statutory rights or, alternatively, because the arbitration provisions are unconscionable under applicable state law. The 3PL Defendants respond by providing the declaration of Mr. Greg Stultz, a CMS employee, and a set of transaction records from CMS. Mr. Stultz's declaration states that CMS provides and manages "ICMPower," the digital platform through which the Plaintiffs purportedly signed the 3PL Agreement. Mr. Stultz explains the process through which a user may access and sign an agreement using ICMPower. The user must first register for the platform by submitting her name, date of birth, and social security number. Then the user must create a unique electronic signature. To do that, the user must correctly answer three of four security questions related to her personal history. Once the electronic signature is created, in order to sign a document, the user must log in to ICMPower. ICMPower records users' interactions with the system, including registration, identity verification, and the affixing of an electronic signature to a document. Mr. Stultz asserts, and the records he provides corroborate, that both of the Plaintiffs completed ICMPower's identity verification process, created a unique electronic signature, and later reviewed and electronically signed the 3PL Agreement. This evidence overcomes the Plaintiffs' unsupported implication that 3PL forged the Plaintiffs' signatures. The Plaintiffs' remaining argument, that they do not recall authorizing anyone to affix their electronic signatures to the 3PL Agreement, does not suffice to call the agreement's formation into question under New York law. The Court, therefore, finds that the Plaintiffs have failed to establish that the 3PL Agreement's arbitration provisions are unconscionable under the laws of New York. The Plaintiffs offer no further arguments against enforcement of those arbitration provisions, and the 3PL Defendants' motion to compel arbitration is granted. As to CMS, the Plaintiffs do not contest that they signed the CMS Agreement. The Plaintiffs do argue that, as with the 3PL Agreement, the CMS Agreement's arbitration provisions prevent the Plaintiffs from vindicating their rights or are unconscionable. Anticipating the Plaintiffs' arguments, CMS has executed a covenant not to enforce the CMS Agreement's cost-splitting, forum selection, and confidentiality provisions. The Plaintiffs have presented authority that suggests that, in some circumstances, Maine's courts may find forum selection, cost-splitting, and confidentiality provisions in arbitration agreements to be unconscionable. The Plaintiffs cannot, however, avoid the fact that here, they did not need to agree to those restrictions. CMS gave the Plaintiffs 30 days to review the arbitration provisions and to opt out of them if they so desired. The Plaintiffs have not suggested that there were any express or implied adverse consequences to opting out of the arbitration provisions, nor have they shown that the Plaintiffs lacked the opportunity or ability to read the opt-out provision. Under "the whole circumstances," therefore, the Court does not find the arbitration agreement "to be grossly against conscience, or grossly unreasonable and oppressive." In turn, the Court finds that the CMS Agreement's arbitration provisions are enforceable and the Court grants CMS's motion to compel arbitration. The case is, therefore, dismissed as to Plaintiffs Curtis and Lowell. A copy of the Court's Oder dated Nov. 20, 2018 is available at https://bit.ly/2RukIHL from Leagle.com. ROBERT CURTIS, On behalf of himself and all others similarly situated & ROBERT LOWELL, On behalf of himself and all others similarly situated, Plaintiffs, represented by JEFFREY NEIL YOUNG, JOHNSON WEBBERT & YOUNG LLP & PHILLIP E. JOHNSON, JOHNSON WEBBERT & YOUNG LLP. CONTRACTOR MANAGEMENT SERVICES LLC, Defendant, represented by BRIAN S. KAPLAN -- brian.kaplan@dlapiper.com -- DLA PIPER LLP, pro hac vice & ERIC J. UHL, LITTLER MENDELSON, PC. 3RD PARTY LOGISTICS ME LLC & MICHAEL WILLIAMS, Defendants, represented by CHARLA B. STEVENS -- charla.stevens@mclane.com -- MCLANE MIDDLETON, PERFESSIONAL ASSOCIATION, pro hac vice, NICHOLAS F. CASOLARO -- nicholas.casolaro@mclaine.com -- MCLANE MIDDLETON, PERFESSIONAL ASSOCIATION, pro hac vice & PETER C. FELMLY , DRUMMOND WOODSUM. CORIUM INTERNATIONAL: Kent Balks at Merger Deal with Gurnet Point ----------------------------------------------------------------- MICHAEL KENT, Individually and On Behalf of All Others Similarly Situated, the Plaintiff, vs. CORIUM INTERNATIONAL, INC., DAVID L. GREENWOOD, ERIC H. BJERKHOLT, BHASKAR CHAUDHURI, RON EASTMAN, PHYLLIS GARDNER, IVAN GERGEL, PAUL GODDARD, PETER D. STAPLE, ROBERT THOMAS, GURNET HOLDING COMPANY, and GURNET MERGER SUB, INC., the Defendants, Case No. 1:18-cv-01744-UNA (D. Del., Nov. 5, 2018), seeks to enjoin Defendants and all persons acting in concert with them from proceeding with, consummating, or closing a proposed transaction, and in the event Defendants consummate the proposed transaction, rescinding it and setting it aside or awarding rescissory damages. According to the complaint, the action stems from a proposed transaction announced on October 11, 2018, pursuant to which Corium International, Inc. will be acquired by affiliates of Gurnet Point Capital. On October 11, 2018, Corium's Board of Directors caused the Company to enter into an agreement and plan of merger with Gurnet Holding Company and Gurnet Merger Sub, Inc. Pursuant to the terms of the Merger Agreement, Merger Sub commenced a tender offer to acquire all of Corium's outstanding common stock for $12.50 per share in cash. The Tender Offer is set to expire on November 26, 2018. On October 26, 2018, defendants filed a Schedule 14D-9 Solicitation/Recommendation Statement (the "Solicitation Statement") with the United States Securities and Exchange Commission in connection with the Proposed Transaction. The Solicitation Statement omits material information with respect to the Proposed Transaction, which renders the Solicitation Statement false and misleading. Accordingly, plaintiff alleges herein that defendants violated Sections 14(e), 14(d), and 20(a) of the Securities Exchange Act of 1934 in connection with the Solicitation Statement, the lawsuit says. Corium is a commercial-stage biopharmaceutical company focused on the development, manufacture, and commercialization of specialty pharmaceutical products that leverage the Company's broad experience with advanced transdermal and transmucosal delivery systems.[BN] Attorneys for Plaintiff: Gina M. Serra, Esq. Brian D. Long, Esq. RIGRODSKY & LONG, P.A. 300 Delaware Avenue, Suite 1220 Wilmington, DE 19801 Telephone: (302) 295-5310 Facsimile: (302) 654-7530 E-mail: bdl@rl-legal.com gms@rl-legal.com - and - Richard A. Maniskas RM LAW, P.C. 1055 Westlakes Drive, Suite 300 Berwyn, PA 19312 Telephone: (484) 324-6800 Facsimile: (484) 631-1305 E-mail: rm@maniskas.com COVIA HOLDINGS: Awaits Court OK on Settlement of Merger Suit ------------------------------------------------------------ Covia Holdings Corporation is awaiting the Court's preliminary approval of a stipulation to settle merger-related lawsuits, 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. On June 1, 2018 (the "Merger Date"), Unimin Corporation ("Unimin") completed its previously announced merger transaction (the "Merger") with Fairmount Santrol Holdings Inc. ("Fairmount Santrol"). Upon closing of the Merger, Fairmount Santrol was merged into a wholly owned subsidiary of Unimin and ceased to exist as a separate corporate entity. The combined entities began operating as Covia. Fairmount Santrol common stock was delisted from the New York Stock Exchange ("NYSE") prior to the market opening on June 1, 2018 and Covia commenced trading under the ticker symbol "CVIA" as of that date. Beginning on April 24, 2018, alleged stockholders of Fairmount Santrol filed class actions against Fairmount Santrol and its directors in the United States District Courts for the Northern District of Ohio and for the District of Delaware. The lawsuits generally alleged that Fairmount Santrol and its directors violated the federal securities laws by issuing allegedly misleading disclosures in connection with the Merger. The lawsuits sought, among other things, to enjoin the special meeting at which stockholders of Fairmount Santrol were scheduled to vote on, among other items, a proposal to adopt the Merger agreement. On May 14, 2018, counsel for the plaintiffs and counsel for the defendants entered into a memorandum of understanding that, among other things, provided for the dissemination of additional information to Fairmount Santrol stockholders and for dismissal with prejudice of the lawsuits. On May 15, 2018, Fairmount Santrol disseminated the supplemental disclosures to Fairmount Santrol stockholders through a Current Report on Form 8-K. Also on May 15, 2018, the plaintiffs withdrew their pending motions for a preliminary injunction. On May 25, 2018, at a special meeting of the stockholders of Fairmount Santrol, the holders of the majority of the outstanding shares of Fairmount Santrol voted to approve the Merger, among other things. On June 1, 2018, the Merger was effected pursuant to the Merger agreement. On November 9, 2018, the parties executed a stipulation of settlement and the plaintiffs filed a motion with the Court, seeking preliminary approval of the proposed settlement. The Company said, "Although the outcome of this lawsuit cannot be predicted with certainty, management does not believe that this pending lawsuit is reasonably likely to have a material adverse effect on the Company’s financial position, results of operations or cash flows." Covia Holdings Corporation provides minerals and material solutions for the industrial and energy markets. The company offers various mineral solutions to the glass, ceramics, coatings, polymers, construction, water filtration, sports, and recreation markets. Covia Holdings Corporation was founded in 1970 and is based in Chesterland, Ohio. CUSTOMERS BANCORP: Edelman Class Suit Dismissed ----------------------------------------------- Customers Bancorp, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 13, 2018, for the quarterly period ended September 30, 2018, that the Court in the case, Shaya Edelman, individually, and on behalf of all others similarly situated v. Higher One Holdings, Inc., WEX Bank, Inc., and Customers Bancorp, Inc., Case 2:17-cv-01700-RBS, has entered an order of dismissal pursuant to Federal Rule of Civil Procedure 41(A). On April 13, 2017, a class action complaint captioned Shaya Edelman, individually, and on behalf of all others similarly situated v. Higher One Holdings, Inc., WEX Bank, Inc., and Customers Bancorp, Inc., Case 2:17-cv-01700-RBS, was filed in the United States District Court for the Eastern District of Pennsylvania. The plaintiff generally alleged, among other things, violations of state consumer protection statutes and federal public policy promulgated in the Higher Education Act, Department of Education Regulations, the Electronic Funds Transfer Act, Regulation E and various common law violations through the offering and use of the Higher One checking account and debit card. Customers Bank, Higher One Holdings, Inc. and Wex Bank, Inc. filed a motion to compel arbitration and stay proceedings. On August 28, 2018, as a result of the Parties' voluntary resolution of the matter, the Court entered an order dismissing the case pursuant to Federal Rule of Civil Procedure 41(A). Customers Bancorp, Inc. operates as the bank holding company for Customers Bank that provides financial products and services to small and middle market businesses, not-for-profits, and consumers. Customers Bancorp, Inc. was founded in 1994 and is headquartered in Wyomissing, Pennsylvania. CVS HEALTH: Agrees to Settle Kentucky Class Suit for $20 Million ---------------------------------------------------------------- CVS Health Corporation 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 the Company has agreed to resolve the class action suit entitles, Indiana State District Council of Laborers and HOD Carriers Pension and Welfare Fund v. Omnicare, Inc., et al. (U.S. District Court for the Eastern District of Kentucky), for $20 million, funded by insurance proceeds. In February 2006, two substantially similar putative class action lawsuits were filed and subsequently consolidated. The consolidated complaint was filed against Omnicare, three of its officers and two of its directors and purported to be brought on behalf of all open-market purchasers of Omnicare common stock from August 3, 2005 through July 27, 2006, as well as all purchasers who bought shares of Omnicare common stock in Omnicare’s public offering in December 2005. The complaint alleged violations of the Securities Exchange Act of 1934 and Section 11 of the Securities Act of 1933 and sought, among other things, compensatory damages and injunctive relief. After dismissals and appeals to the United States Court of Appeals for the Sixth Circuit, the United States Supreme Court remanded the case to the district court. In October 2016, Omnicare filed an answer to plaintiffs' third amended complaint, and discovery commenced. In October 2018, the Company agreed to resolve this matter for $20 million, funded by insurance proceeds. The settlement is subject to the parties reaching agreement on the non-economic terms and court approval. CVS Health said, "The Company denies any wrongdoing, and agreed to a settlement to avoid the burden, uncertainty and distraction of litigation. CVS Health Corporation, together with its subsidiaries, provides integrated pharmacy health care services. It operates through Pharmacy Services and Retail/LTC segments. CVS Health Corporation was founded in 1892 and is headquartered in Woonsocket, Rhode Island. CVS HEALTH: Continues to Defend EpiPen ERISA Class Suit ------------------------------------------------------- CVS Health Corporation 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 the Klein, et al. v. Prime Therapeutics, et al. has been consolidated with another similar matter and is now proceeding as In re EpiPen ERISA Litigation. In June 2017, a putative class action complaint was filed against the Company and other pharmacy benefit managers on behalf of Employee Retirement Income Security Act (ERISA) plan members who purchased and paid for EpiPen or EpiPen Jr. Plaintiffs allege that the pharmacy benefit managers are ERISA fiduciaries to plan members and have violated ERISA by allegedly causing higher inflated prices for EpiPen through the process of negotiating increased rebates from EpiPen manufacturer, Mylan. This case was recently consolidated with a similar matter and is now proceeding as In re EpiPen ERISA Litigation. The Company is defending the lawsuit. No further updates were provided in the Company's SEC report. CVS Health Corporation, together with its subsidiaries, provides integrated pharmacy health care services. It operates through Pharmacy Services and Retail/LTC segments. CVS Health Corporation was founded in 1892 and is headquartered in Woonsocket, Rhode Island. CVS HEALTH: Still Defends Bewley and Prescott Class Suits --------------------------------------------------------- CVS Health Corporation 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 the company continues to defend itself in the cases, Bewley, et al. v. CVS Health Corporation, et al. and Prescott, et al. v. CVS Health Corporation, et al. (both pending in the U.S. District Court for the Western District of Washington). These putative class actions were filed in May 2017 against the Company and other pharmacy benefit managers and manufacturers of glucagon kits (Bewley) and diabetes test strips (Prescott). Both cases allege that, by contracting for rebates with the manufacturers of these diabetes products, the Company and other PBMs caused list prices for these products to increase, thereby harming certain consumers. The primary claims are made under federal antitrust laws, the federal Racketeer Influenced and Corrupt Organizations Act ("RICO"), state unfair competition and consumer protection laws, and the federal Employee Retirement Income Security Act ("ERISA"). These cases have both been transferred to the United States District Court for the District of New Jersey on defendants' motions. The Company is defending these lawsuits. No further updates were provided in the Company's SEC report. CVS Health Corporation, together with its subsidiaries, provides integrated pharmacy health care services. It operates through Pharmacy Services and Retail/LTC segments. CVS Health Corporation was founded in 1892 and is headquartered in Woonsocket, Rhode Island. CVS HEALTH: Still Faces Corcoran and Podgorny Complaints -------------------------------------------------------- CVS Health Corporation 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 the company continues to defend against a consolidated Corcoran et al. v. CVS Health Corporation (U.S. District Court for the Northern District of California) and Podgorny et al. v. CVS Health Corporation (U.S. District Court for the Northern District of Illinois). These putative class actions were filed against the Company in July and September 2015. The cases were consolidated in United States District Court in the Northern District of California. Plaintiffs seek damages and injunctive relief on behalf of a class of consumers who purchased certain prescription drugs under the consumer protection statutes and common laws of certain states. Several third-party payors filed similar putative class actions on behalf of payors captioned Sheet Metal Workers Local No. 20 Welfare and Benefit Fund v. CVS Health Corp. and Plumbers Welfare Fund, Local 130 v. CVS Health Corporation (both pending in the U.S. District Court for the District of Rhode Island) in February and August 2016. In all of these cases the plaintiffs allege the Company overcharged for certain prescription drugs by not submitting the price available to members of the CVS Health Savings Pass program as the pharmacy's usual and customary price. In the consumer case (Corcoran), the Court granted summary judgment to CVS on plaintiffs' claims in their entirety and certified certain subclasses in September 2017. The Corcoran plaintiffs have appealed to the Ninth Circuit. The Sheet Metal plaintiffs have amended their complaint to assert a Racketeer Influenced and Corrupt Organizations Act claim premised on an alleged conspiracy between the Company and other PBMs. The Company continues to defend these actions. CVS Health Corporation, together with its subsidiaries, provides integrated pharmacy health care services. It operates through Pharmacy Services and Retail/LTC segments. CVS Health Corporation was founded in 1892 and is headquartered in Woonsocket, Rhode Island. DATAWATCH CORPORATION: Scarantino Balks at Merger Deal with Altair ------------------------------------------------------------------ LOUIS SCARANTINO, Individually and On Behalf of All Others Similarly Situated, the Plaintiff, vs. DATAWATCH CORPORATION, CHRISTOPHER T. COX, DONALD R. FRIEDMAN, THOMAS H. KELLY, DAVID C. MAHONEY, JOAN MCARDLE, MICHAEL A. MORRISON, RICHARD DE J. OSBORNE, RANDALL P. SEIDL, ALTAIR ENGINEERING INC., and DALLAS MERGER SUB, INC., the Defendants, Case No. 1:18-cv-01827-UNA (D. Del., Nov. 20, 2018), alleges that Defendants violated Sections 14(e), 14(d), and 20(a) of the Securities Exchange Act of 1934 in connection with a solicitation statement. According to the complaint, the action stems from a proposed transaction announced on November 5, 2018, pursuant to which Datawatch Corporation will be acquired by Altair Engineering Inc. and Dallas Merger Sub, Inc. On November 5, 2018, Datawatch's Board of Directors caused the Company to enter into an agreement and plan of merger with Altair. Pursuant to the terms of the Merger Agreement, Merger Sub commenced a tender offer to acquire all of Datawatch's outstanding common stock for $13.10 per share in cash. The Tender Offer is set to expire on December 12, 2018. On November 14, 2018, the Defendants filed a Solicitation/Recommendation Statement with the United States Securities and Exchange Commission in connection with the Proposed Transaction. The Solicitation Statement omits material information with respect to the Proposed Transaction, which renders the Solicitation Statement false and misleading, the lawsuit says. Datawatch Corporation is an American software company that creates and sells self-service data preparation solutions. The entire platform includes Datawatch Monarch Complete, Monarch Server and Monarch Swarm.[BN] Attorneys for Plaintiff: Gina M. Serra, Esq. Brian D. Long, Esq. RIGRODSKY & LONG, P.A. 300 Delaware Avenue, Suite 1220 Wilmington, DE 19801 Telephone: (302) 295-5310 Facsimile: (302) 654-7530 E-mail: bdl@rl-legal.com gms@rl-legal.com - and - Richard A. Maniskas, Esq. RM LAW, P.C. 1055 Westlakes Drive, Suite 300 Berwyn, PA 19312 Telephone: (484) 324-6800 Facsimile: (484) 631-1305 E-mail: rm@maniskas.com DAYMARK PROPERTIES: Catanzarite Law Firm Represents Investors ------------------------------------------------------------- Catanzarite Law Corporation has filed multiple lawsuits on behalf of investors including proposed classes of investors (over 14,500 investors) against debtors Daymark Properties Realty, Inc., Daymark Realty Advisors, Inc. and Daymark Realty Management, Inc.; Todd Mikles ("Mikles"); "Sovereign"; his/its affiliates; and others including Northwood Investors, Cottonwood and Western Alliance Bank (Torrey Pines Bank). The cases are filed on behalf of 13,000 GREIT Trust Beneficiaries, 400 members of NNN Capital Fund I, LLC, 1818 Market Street investors, NNN Congress Center investors, 26 apartment tenant in common ("TIC") investments (1,000 investors) managed by DRMI, which contracts were, as alleged, sold to Cottonwood without notice for $8 million. These cases include claims that Debtors' assets were transferred, without consideration, to Mr. Mikles and Sovereign related companies. On October 16, 2018 the Judge in the GREIT Trust litigation overruled demurrers/motions to dismiss requiring answers by: (1) the trustees to a breach of fiduciary duty claim, and (2) Mr. Mikles affiliates to a fraudulent conveyance claim tracing millions into GCL which in turn owns 1,000 acres of land in San Diego County. About Daymark Realty Advisors/Daymark Properties Realty Based in Fort Laudersale, Florida, Daymark Realty Advisors Inc. is a provider of strategic asset management and structured finance services to private and institutional owners of commercial real estate. Daymark Realty and affiliates Daymark Properties Realty Inc. and Daymark Residential Management Inc. filed a Chapter 11 petition (Bankr. S.D. Fla. Lead Case No. 18-23750) on November 4, 2018. The petition was signed by Espen Schiefloe, chief restructuring officer. DEFY MEDIA: YouTube Content Creators Hit by Sudden Closure ---------------------------------------------------------- Natalie Jarvey, writing for Hollywood Reporter, reports that the stars behind Defy-owned Smosh and Clevver have taken control of their YouTube channels. The creators behind Defy-owned Smosh and Clevver have kept posting videos to the channels even as they await the fate of those brands. Ten days after Defy Media announced its abrupt closure, the effects of the shutdown are still rippling through the community of YouTube creators who worked closest with the company. Shocked and confused by the sudden end to the Defy business, many of the YouTubers who were part of its network have posted videos or Twitter threads claiming that Defy still owes them money and that there is no one left at the company to take their calls. Meanwhile, the stars behind Defy-owned Smosh and Clevver have taken control of their YouTube channels and told fans that they plan to continue posting videos while they await the fate of those brands. "It's surprising," says one source involved in discussions about what is next for the former network of creators. "We don't know anything." Lionsgate and Viacom-backed Defy said that it was shuttering on Nov. 6, revealing via a statement that it had "ceased operations" due to "market conditions" that "got in the way of us completing our mission." A spokeswoman said at the time that a small team would remain with the company to search for buyers for brands like Smosh and Clevver. Defy raised a round of funding as recently as 2016, cutting a deal with Wellington Management Co. for $70 million in backing. At one point the company had sales talks with Viacom, but they never became serious. And as late as mid-October, CEO Matthew Diamond and president Keith Richman had advanced conversations with prospective buyers to either sell the whole company or some of its brands, a knowledgeable source tells The Hollywood Reporter, but those deals fell through. Instead, the company shut down. The small group of some 50 YouTube creators who were part of Defy's network learned about the closure through press reports. For many of them, Defy had been a conduit for larger sponsored videos and also helped with the logistics of working with YouTube. In many instances, Defy took a 10 percent cut of that monthly ad revenue, known as AdSense, in exchange for its services. After Defy shut its doors, many creators began to worry that they would not receive checks for their September and October AdSense payments, which for some equates to tens of thousands, if not hundreds of thousands, in lost income. "It's a massive hit," says James Clement, who operates the Mr. Sunday Movies YouTube channel, which has 921,000 subscribers. Clement says that he and his wife, Claire Tonti, have diversified their business in recent years, including building out a podcast network, and won't be significantly hurt if they never receive those payments, but notes that not all creators are in his position. Chris Stuckmann, who has 1.3 million subscribers on his movie-focused channel, adds that in addition to the monthly AdSense money, he is also waiting on Defy to send him a check for a pair of videos. "That money was supposed to put a dent in my college tuition," he said. "Now I have to use my savings." Earlier, former Defy creators learned that the company was not yet in possession of the October AdSense payments and that YouTube plans to pay them directly. But even so, many creators have become frustrated by the lack of response from Defy about what has happened to the rest of the money. Some partner managers who were laid off are still responding to creators' requests via personal phone numbers and email addresses, say sources, but they have had few answers. A further snag for partners who say that Defy still owes them money is the possibility that the company will file for bankruptcy. As they wait for more information, creators have started to point fingers at the bank, Ally, that they believe is now in control of Defy's finances. Ryland Adams (3.1 million subscribers), for example, tweeted at the bank asking it to "please help get my fellow creators and I our hard earned money back that Defy Media took from us." Diamond did not respond to multiple requests for comment. A spokeswoman for Ally also did not respond to a THR's request for an interview. Complicating matters for creators, immediately following Defy's shutdown they realized that their channels were still connected to the company's network, meaning that any revenue they made in the days after the closure could potentially get sent to Defy. YouTube, per several of these creators, was quick in responding to their concerns and has released them from the Defy network. As the days drag on and the silence from Defy continues, several creators are now exploring what steps they can take to try to get back the money that they say they are owed. Several, including Stuckmann and Clement, have already posted videos about their experiences with the company -- "Let's talk about some shit," Stuckmann started his 22-minute video on the topic -- and more videos are expected. Some YouTubers are also exploring whether to take legal action. Defy's laid off workers have responded more quickly, with one filing a class-action lawsuit in Los Angeles against the company on Nov. 13 that claims Defy didn't provide the California mandated 60 days of advance notice of the layoffs. Defy did send a Worker Adjustment and Retraining Notification (WARN) letter to around 80 employees on the morning of Nov. 6, notifying them that the company's primary office in Beverly Hills would shut down by Jan. 2, but then proceeded to lay everyone off and cease operations by the end of the day. Georgina Guinane, a former writer and producer for Clevver who is bringing the case on behalf of her colleagues, is seeking 60 days of wages and benefits. Another lawsuit was filed Nov. 14 in Los Angeles by the co-founders of management firm Generate, a division of Defy. It alleges that Defy executives misrepresented plans to separate Generate into an independent company and withheld financial information that would have prompted the Generate founders, David Rath and Kara Welker, to terminate their relationship with Defy sooner. For the creators who worked at Defy-owned brands Smosh and Clevver, it had been unclear whether they would be able to post new videos while the company looked to offload those businesses. Ian Hecox, one of the co-founders of Smosh who sold the company to Defy's predecessor, posted a note on his Twitter on Nov. 6 telling fans, "We're already in the process of finding a new home and will update you all as soon as we can." Meanwhile, Clevver hosts Joslyn Davis and Erin Robinson posted videos to their personal YouTube channels updating fans on their situation. But after a period of silence on the brands' main channels, both have returned. Smosh posted a video Nov. 12 in which Hecox announced, "Smosh is homeless" but revealed that he had obtained access to the channels and would continue posting. The video has more than 1.6 million views. On Nov. 16, Ms. Davis and Ms. Robinson also posted an update on the main ClevverStyle account revealing that they, too, would release new videos. "We don't really have a plan so it may not be your regularly scheduled programming," Ms. Robinson explained. But, she added, "We are not going anywhere." [GN] DENMARK, SC: Faces Class Actions Over Quality of Drinking Water --------------------------------------------------------------- Megan Knowles of Becker's Hospital Review, citing CNN, reports that two lawsuits were filed on behalf of residents of Denmark, S.C., where a CNN investigation revealed a chemical was being added to the water supply for a decade without approval from the Environmental Protection Agency. The South Carolina city has been under scrutiny from residents wary of the rust-colored water coming from their taps despite assurance from government officials that it was safe to drink. The lawsuit filed on behalf of three city residents, representing the class, claims, "Plaintiffs were damaged by defendant's conduct as plaintiffs purchased and consumed water that included a chemical that was not approved by the EPA and was not determined to be safe to people or the environment," according to CNN. One of the lawsuits seeks reimbursement for water bills for the 10 years the chemical was added to the water supply, and it claims the local government had no right to make people pay for water that was not potable. [GN] DENMARK, SC: To Obtain Legal Counsel to Defend Well Class Action ---------------------------------------------------------------- Ron Baxley Jr., writing for The Times and Democrat, reports that Denmark City Council voted unanimously on Nov. 19 to authorize the mayor and the administrator to obtain legal counsel to defend the city against a class-action lawsuit brought against it by a group of residents over the use of the chemical HaloSan in one of its wells. The action was taken by the council after it met in closed, executive session to discuss a legal matter. The complaint filed by the residents describes HaloSan as "a disinfectant used to treat pools and spas" that is not approved by the EPA to disinfect drinking water. The lawsuit alleges Denmark had not "regulated the dosage of HaloSan in the administration process or filtered such water before distribution." Some Denmark residents, many of whom attended the Nov. 19 council meeting, believe the water is to blame for health issues they've experienced. Over the years, several of them have come to Denmark City Council meetings carrying bottles of rust-colored water from their taps to show officials and to question the quality and safety of their drinking water. More than 50 residents attended the Nov. 19 meeting following a report by CNN that the city, with approval of the S.C. Department of Health and Environmental Control, "was adding a substance to one of four wells, trying to regulate naturally occurring iron bacteria that can leave red stains or rust-like deposits in the water. The substance, known as HaloSan, was not approved by the U.S. Environmental Protection Agency to disinfect drinking water." The CNN report noted that several experts contacted said they could not find another instance where HaloSan was added to a drinking water system. Bamberg, D-Bamberg, told The Times and Democrat that he and Sen. Brad Hutto, D-Orangeburg, met with DHEC officials to determine how the decision was made to use the non-EPA approved product in drinking water. He said he would call for a special committee to investigate why HaloSan usage was allowed. At the Nov. 19 council meeting, Johnnie Ruth Rosa, a 30-year resident of Denmark, said she and others first brought in discolored city water to show Denmark officials in 2010. She said the water was unsuitable to bathe in, wash clothes in or drink, adding that many of the citizens had rashes from the water. Rosa She said former state representative Bakari Sellers contacted Earl Hunter, the commissioner of DHEC at the time, regarding the water quality. Many of the citizens had rashes from the water, Rosa said, adding that she has lead in her blood even though she has not used the city water for more than 20 years. "Denmark's water got the name ‘Denmark tea' because it was so dark," she said. Ms. Rosa asked how the city had used $490,500 it received several years ago for water system infrastructure. "We had three phases in the water system. We had two new wells. The second well was found to be contaminated," Mayor Gerald Wright told her. "Less than a year later, it was shut down. We went back to the Cox Mill well at that point." "At that point, we purchased water directly from Bamberg, piping (it) between the cities. It was there to service an industrial park. They provided water. When our new wells were completed, we no longer had to use that," Wright said. The mayor added, "Those two wells provided an adequate supply. The third one was a back-up. They are all running appropriately. It would be asinine on our part not to do that." "I use water from the city supply every day. We are going to make sure the water is of high quality. We are going to use every method to do that," he said. David Bell, a citizen and veteran, said, "I am not sure I am involved in this water issue or not. I recovered from a surgery. I put a jacuzzi in to help me . . . Now, my whole right side is in deep pain, and there is no visible injury." Mr. Bell continued, "I survived the military and war. The past eight months, things have been going downward. I heard some stuff (about the water) and wanted to see if somebody had the same kind of experiences." "We will try to assist you to see what the problem is," Wright told him. Councilman Calvin Odom told the citizens, "As a lifetime resident and former educator, I must say when you are doing your reading, if there are 30 pages, you cannot tell the story by reading the first three pages." "A lot of us are not seeking solutions. We are seeking payments," Mr. Odom told them. Wright added, "We have followed procedures by an agency in the state that has the responsibility to regulate water systems in this state. There are things that we test on a frequent basis -- monthly, quarterly and semi-annually. "In addition, we have self-testing, which we send to labs for analysis. When there is something we need to address, we have dealt with it expediently." Councilwoman Hope Weldon said, "I spoke with DHEC on Nov. 16. They said they would come (to this meeting). They changed their mind." "DHEC told me we needed to get in touch with Region 4 of the EPA in Atlanta, Georgia," she continued. From there, she said she was referred to a special assistant to the director of the EPA in Washington, D.C. "He referred us back to the Region 4 office," Ms. Weldon said. "They are going to get back with us." [GN] DIAMONDBACK ENERGY: Files Supplemental Disclosures to Appease Suits ------------------------------------------------------------------- Diamondback Energy, Inc. has voluntarily filed additional disclosures with the U.S. Securities and Exchange Commission in an effort to alleviate the costs, risks and uncertainties inherent in litigation related to its merger agreement with Energen Corporation, among other parties, according to Diamondback's Form 8-K filing with the U.S. Securities and Exchange Commission dated November 15, 2018. On August 14, 2018, Diamondback Energy, Inc. ("Diamondback") entered into an Agreement and Plan of Merger (the "Merger Agreement") with Energen Corporation ("Energen") and Sidewinder Merger Sub Inc., a wholly owned subsidiary of Diamondback ("Merger Sub"), providing for the merger of Merger Sub with and into Energen, with Energen surviving the merger as a wholly owned subsidiary of Diamondback (the "Merger"). On October 25, 2018, Diamondback and Energen filed with the Securities and Exchange Commission (the "SEC") a definitive joint proxy statement, which also constitutes a prospectus of Diamondback, for the solicitation of proxies in connection with special meetings Diamondback's stockholders and Energen shareholders, each to be held on November 27, 2018, for purposes of voting, among other things, on matters necessary to complete the Merger (the "Proxy Statement"). In connection with the Merger Agreement and the transactions contemplated thereby, a purported class action lawsuit (the plaintiff in such complaint, the "Gross Plaintiff") and an individual lawsuit (the plaintiff in such complaint, the "Stein Plaintiff") have been filed in the United States District Court for the Northern District of Alabama. Both complaints, captioned Gross v. Energen Corporation, et al., Case No. 2:18-cv-01711-RDP (filed October 17, 2018) and Stein v. Energen Corporation, et al., Case 2:18-cv-01746-JHE (filed October 22, 2018), assert claims against Energen and its directors. In general, the complaints allege that the defendants violated Sections 14(a) and 20(a) of the Exchange Act because the preliminary registration statement on Form S-4, as amended by Amendment No. 1 to the Form S-4, filed with the SEC (the "Registration Statement") allegedly misrepresents or omits material information. The complaints seek, among other things, injunctive relief preventing the consummation of the Merger until additional disclosures are made, and damages. On October 26, 2018, a purported shareholder derivative and class action complaint, captioned Rosenblatt v. Cohen, et al., Case No. 01-CV-2018-904321.00, was filed in the Circuit Court of Jefferson County, Alabama (the plaintiff in such complaint, the "Rosenblatt Plaintiff") against Energen, Energen's directors, Diamondback and Merger Sub in connection with the Merger. The complaint alleges state law breach of fiduciary duty claims against the Energen directors for, among other things, an allegedly inadequate price and alleged failure to disclose material information in the Registration Statement. The complaint also alleges that Diamondback aided and abetted the Energen directors' alleged breaches of fiduciary duty. The complaint seeks, among other things, injunctive relief preventing the consummation of the Merger, and damages. On November 15, 2018, Energen, Energen's directors, Diamondback and Merger Sub reached an agreement to resolve the three lawsuits (the "Actions"). In connection with the resolution of the Actions and in order to alleviate the costs, risks and uncertainties inherent in litigation and provide additional information to investors, Energen and Diamondback have determined to voluntarily supplement the Proxy Statement with various disclosures. These disclosures are provided in the Company's Current Report on Form 8-K, a full-text copy of which is available at https://bit.ly/2zGhLNH The Company said, "Nothing in this Current Report on Form 8-K will be deemed an admission of the legal necessity or materiality under applicable laws of any of the disclosures set forth herein. To the contrary, Energen, Energen's directors, Diamondback and Merger Sub believe that all of the claims alleged in the Actions are without merit and specifically deny all allegations in the foregoing complaints, including, without limitation, that any additional disclosure was or is required. As part of this resolution, the Actions will be dismissed with prejudice as to the named plaintiffs and without prejudice as to all others. It is possible that additional, similar complaints may be filed. If this occurs, Energen and Diamondback do not intend to announce the filing of each additional, similar complaint or any amended complaint unless it contains materially new or different allegations." Diamondback Energy, Inc., an independent oil and natural gas company, focuses on the acquisition, development, exploration, and exploitation of onshore oil and natural gas reserves in the Permian Basin in West Texas. The Company was founded in 2007 and is headquartered in Midland, Texas. DISH DBS: Appeal in Krakauer Action Still Pending in 4th Cir. ------------------------------------------------------------- The appeal of a DISH DBS Corporation subsidiary in the "Krakauer Action" remains pending in the U.S. Court of Appeals for the Fourth Circuit, 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. A portion of the alleged telemarketing violations by an independent third-party retailer at issue in the FTC Action are also the subject of a certified class action filed against DISH Network L.L.C. in the United States District Court for the Middle District of North Carolina (the "Krakauer Action"). Following a five-day trial, on January 19, 2017, a jury in that case found that the independent third-party retailer was acting as DISH Network L.L.C.'s agent when it made the 51,119 calls at issue in that case, and that class members are eligible to recover US$400 in damages for each call made in violation of the TCPA. On March 7, 2017, DISH Network L.L.C. filed motions with the Court for judgment as a matter of law and, in the alternative, for a new trial, which the Court denied on May 16, 2017. On May 22, 2017, the Court ruled that the violations were willful and knowing, and trebled the damages award to US$1,200 for each call made in violation of TCPA. On April 5, 2018, the Court entered a US$61 million judgment in favor of the class. On May 4, 2018, DISH Network L.L.C. filed a notice of appeal to the United States Court of Appeals for the Fourth Circuit. During the second quarter 2017, the Company recorded US$41 million of "Litigation expense" related to the Krakauer Action on its Condensed Consolidated Statements of Operations and Comprehensive Income (Loss). The Company recorded US$20 million of "Litigation expense" related to the Krakauer Action during the fourth quarter 2016. The Company's total accrual related to the Krakauer Action at September 30, 2018 was US$61 million and is included in "Other accrued expenses" on its Condensed Consolidated Balance Sheets. The Company said, "We intend to vigorously defend these cases. We cannot predict with any degree of certainty the outcome of these suits." DISH DBS Corporation, through its subsidiaries, provides pay-TV services under the DISH and Sling brands in the United States. Its DISH branded pay-TV services include the company's licensed Federal Communications Commission authorized direct broadcast satellite and fixed satellite service spectrum, as well as its owned and leased satellites, receiver systems, third-party broadcast operations, customer service facilities, a leased fiber optic network, and in-home service and call center operations. The company was founded in 1996 and is headquartered in Englewood, Colorado. DISH DBS Corporation is a subsidiary of DISH Network Corporation. DISH NETWORK: Accrues $61 Million in Relation to Krakauer Action ---------------------------------------------------------------- DISH Network Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 7, 2018, for the quarterly period ended September 30, 2018, that the company's total accrual related to the Krakauer Action is $61 million. A portion of the alleged telemarketing violations by an independent third-party retailer at issue in the Federal Trade Commission (FTC) Action are also the subject of a certified class action filed against DISH Network L.L.C. in the United States District Court for the Middle District of North Carolina (the "Krakauer Action"). Following a five-day trial, on January 19, 2017, a jury in that case found that the independent third-party retailer was acting as DISH Network L.L.C.'s agent when it made the 51,119 calls at issue in that case, and that class members are eligible to recover $400 in damages for each call made in violation of the TCPA. On March 7, 2017, DISH Network L.L.C. filed motions with the Court for judgment as a matter of law and, in the alternative, for a new trial, which the Court denied on May 16, 2017. On May 22, 2017, the Court ruled that the violations were willful and knowing, and trebled the damages award to $1,200 for each call made in violation of TCPA. On April 5, 2018, the Court entered a $61 million judgment in favor of the class. On May 4, 2018, DISH Network L.L.C. filed a notice of appeal to the United States Court of Appeals for the Fourth Circuit. DISH Network said, "During the second quarter 2017, we recorded $41 million of "Litigation expense" related to the Krakauer Action on our Condensed Consolidated Statements of Operations and Comprehensive Income (Loss). We recorded $20 million of "Litigation expense" related to the Krakauer Action during the fourth quarter 2016. Our total accrual related to the Krakauer Action at September 30, 2018 was $61 million and is included in "Other accrued expenses" on our Condensed Consolidated Balance Sheets." DISH Network Corporation, together with its subsidiaries, provides pay-TV services in the United States. The company operates in two segments, Pay-TV and Wireless. It offers video services under the DISH TV brand; and programming packages that include programming through national broadcast networks, local broadcast networks, and national and regional cable networks, as well as regional and specialty sports channels, premium movie channels, and Latino and international programming packages. DISH Network Corporation was founded in 1980 and is headquartered in Englewood, Colorado. DITECH HOLDING: Unit Still Defends Class Suit over TCPA Violations ------------------------------------------------------------------ Ditech Holding Corporation disclosed in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2018, that subsidiary Ditech Financial remains subject to several putative class action suits alleging violations of the Telephone Consumer Protection Act for placing phone calls to plaintiffs' cell phones using an automatic telephone dialing system without their prior consent. The plaintiffs in these suits, on behalf of themselves and others similarly situated, seek statutory damages for both negligent and knowing or willful violations of the TCPA. Ditech Holding Corporation operates as an independent servicer and originator of mortgage loans, and servicer of reverse mortgage loans. The company operates through three segments: Servicing, Originations, and Reverse Mortgage. Ditech Holding Corporation was founded in 1958 and is based in Fort Washington, Pennsylvania. DITECH HOLDING: Unit Still Faces Kamimura Class Suit in Nevada -------------------------------------------------------------- Ditech Holding Corporation's subsidiary continues to defend itself against the "Kamimura" class action lawsuit in Nevada, 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. In Kamimura, Lee C. v. Green Tree Servicing LLC, filed on April 8, 2016 in the U.S. District Court for the District of Nevada, Ditech Financial is subject to a putative nationwide class action suit alleging FCRA violations by obtaining credit bureau information without a permissible purpose after the discharge of debt owed to Ditech Financial pursuant to Chapter 13 of the Bankruptcy Code. The plaintiff in this suit, on behalf of himself and others similarly situated, seeks actual and punitive damages, statutory penalties, and attorneys' fees and litigation costs. No further updates were provided in the Company's SEC report. Ditech Holding Corporation operates as an independent servicer and originator of mortgage loans, and servicer of reverse mortgage loans. The company operates through three segments: Servicing, Originations, and Reverse Mortgage. Ditech Holding Corporation was founded in 1958 and is based in Fort Washington, Pennsylvania. DOLLAR TREE: Snipes Bid for Pretrial Scheduling Conference Granted ------------------------------------------------------------------ In the case captioned TERRY T. SNIPES, SR., an individual, Plaintiff, v. DOLLAR TREE DISTRIBUTION, INC., a Virginia corporation, and DOES 1 through 50, inclusive, Defendants, No. 2:15-cv-00878-MCE-DB (E.D. Cal.), District Judge Morrison C. England, Jr. granted Plaintiff's request for a Supplemental Pretrial Scheduling Order. Through the class action proceeding, Plaintiff Terry T. Snipes, Sr., challenges various wage and hour practices utilized by his employer, Defendant Dollar Tree Distribution, Inc., both on his own behalf and on behalf of others similarly situated. According to Plaintiff, Dollar Tree's uniform timekeeping practices wrongfully exclude compensable time and operate to deprive employees of their legally guaranteed uninterrupted rest and/or meal periods. On Nov. 28, 2017, the Court granted Plaintiff's Motion for Class Certification, certifying six classes and five subclasses related to various California Labor Code violations. Dollar Tree requested reconsideration of that ruling on Dec. 22, 2017, and that request was denied on Sept. 17, 2018. In the meantime, on August 28, 2018, Plaintiff filed a Motion to Request Scheduling Conference which, in the alternative, seeks to modify the Court's existing Pretrial Scheduling Order. Dollar Tree submitted a Statement of Non-Opposition to that Motion but nonetheless expresses several areas of concern. Since the class has been both certified and reconsideration of that determination has been denied, the Court believes that a Supplemental Scheduling Order is proper in order to allow Plaintiff to conduct such post-certification discovery as may be necessary. While Dollar Tree does not oppose Plaintiff's Motion as such, it nonetheless appears to argue that discovery may reveal that some employees signed arbitration agreements as a precondition to employment which could affect the size of discernible classes. That contention, however, even if true, does not justify any delay in initial class discovery, and can be asserted later in these proceedings should it be necessary to do so. In addition, since Dollar Tree failed to bring up the issue of alleged arbitration agreements at the class certification stage, it would be inappropriate to revisit the question now before discovery has even begun. Because Plaintiff's request for a Supplemental Pretrial Scheduling Order is, in essence, unopposed, Plaintiff's Motion is granted to that extent. Since Plaintiff, unlike Dollar Tree, has not proposed either dates or a framework for post-certification discovery, it should be permitted to do so. The Parties must meet and confer in that regard and submit a proposed Supplemental Scheduling Order for the Court's consideration not later than Jan. 8, 2019. A copy of the Court's Order dated Nov. 20, 2018 is available at https://bit.ly/2Pnwm5G from Leagle.com. Terry T. Snipes, Plaintiff, represented by Anthony Eugene Guzman, Sutton Hague Law Corporation, S. Brett Sutton, Sutton Hague Law Corporation, PC, Jared Hague, Sutton Hague Law Corporation, PC & Joseph Vidal Macias, Sutton Hague Law Corporation, PC. Dollar Tree Distribution, Inc., Defendant, represented by Jeffrey J. Mann -- jmann@littler.com -- Littler Mendelson, P.C., Kurt R. Bockes -- kbockes@littler.com -- Littler Mendelson, P.C., Lindbergh Porter, Jr. -- lporter@littler.com -- Littler Mendelson, Elena R. Baca -- elenabacca@paulhastings.com -- Paul Hastings LLP, George W. Abele, Paul Hastings LLP & Ryan David Derry -- ryanderry@paulhastings.com -- Paul Hastings LLP. DYNAMIC RECOVERY: Lee Files FDCPA Suit in California ---------------------------------------------------- A class action lawsuit has been filed against Dynamic Recovery Solutions, LLC. The case is styled as Sangshin Lee, individually and on behalf of all others similarly situated, Plaintiff v. Dynamic Recovery Solutions, LLC and John Does 1-25, Defendants, Case No. 2:18-cv-09931 (C.D. Cal., Nov. 27, 2018). The Plaintiff filed the case under the Fair Debt Collection Practices Act. Dynamic Recovery Solutions, LLC is a full-service collection agency based in South Carolina. Dynamic Recovery Solutions is experienced in collecting late-stage debt for small, medium, and high-volume businesses. Dynamic Recovery Solutions deals with delinquencies dating back as far as 2000.[BN] The Plaintiff is represented by: Jonathan Aaron Stieglitz, Esq. Law Offices of Jonathan A Stieglitz 11845 West Olympic Boulevard Suite 800 Los Angeles, CA 90064 Phone: (323) 979-2063 Fax: (323) 488-6748 Email: jonathan.a.stieglitz@gmail.com EGALET CORP: Appeal in Pennsylvania Consolidated Class Suit Stayed ------------------------------------------------------------------ Egalet Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 19, 2018, for the quarterly period ended September 30, 2018, that the appeal in the consolidated class action suit filed in the U.S. District Court for the Eastern District of Pennsylvania, was automatically stayed as to the Company upon the Chapter 11 filing. On January 27, 2017 and February 10, 2017, respectively, two putative securities class actions were filed in the U.S. District Court for the Eastern District of Pennsylvania that named as defendants Egalet Corporation and current officer Robert S. Radie and former officers Stanley J. Musial and Jeffrey M. Dayno (the "Officer Defendants" and together with Egalet Corporation, the "Defendants"). These two complaints, captioned Mineff v. Egalet Corp. et al., No. 2:17-cv-00390-MMB and Klein v. Egalet Corp. et al., No. 2:17-cv-00617-MMB, assert securities fraud claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act") on behalf of putative classes of persons who purchased or otherwise acquired Egalet Corporation securities between December 15, 2015 and January 9, 2017. On May 1, 2017, the Court entered an order consolidating the two cases (the "Securities Class Action Litigation") before it, appointing the Egalet Investor Group (consisting of Joseph Spizzirri, Abdul Rahiman and Kyle Kobold) as lead plaintiff and approving their selection of lead and liaison counsel. On July 3, 2017, the plaintiffs filed their consolidated amended complaint, which named the same Defendants and also asserted claims for purported violations of Sections 10(b) and 20(a) of the Exchange Act. Plaintiffs brought their claims individually and on behalf of a putative class of all persons who purchased or otherwise acquired shares of the Company between November 4, 2015 and January 9, 2017 inclusive. The consolidated amended complaint based its claims on allegedly false and/or misleading statements and/or failures to disclose information about the likelihood that ARYMO ER would be approved for intranasal abuse-deterrent labeling. The Defendants moved to dismiss the consolidated amended complaint on September 1, 2017 (the "Motion to Dismiss"), the plaintiffs filed their opposition on October 31, 2017, and the Defendants filed their reply on December 8, 2017. The Court heard oral arguments on the Motion to Dismiss on February 20, 2018, and entered an order pursuant to which the plaintiffs filed a motion for leave to file a second amended complaint on March 6, 2018. The Defendants responded on March 20, 2018 and the plaintiffs filed their reply on March 27, 2018. The Court heard oral arguments on the plaintiffs' motion for leave to file a second amended complaint on July 12, 2018. On August 2, 2018, the Court granted the Defendants' Motion to Dismiss and dismissed the Securities Class Action Litigation with prejudice. On August 31, 2018, plaintiffs filed their notice of appeal with the United States Court of Appeal for the Third Circuit. On November 7, 2018, the Defendants filed a notice of suggestion of bankruptcy and unopposed motion to stay the appeal as to the Officer Defendants (the appeal was automatically stayed as to the Company upon the Chapter 11 filing). Egalet Corporation, a specialty pharmaceutical company, develops, manufactures, and commercializes treatments for patients with pain and other conditions. Egalet Corporation was founded in 2010 and is headquartered in Wayne, Pennsylvania. ELECTRONICS FOR IMAGING: Pipitone Case Dismissal Bid Pending ------------------------------------------------------------ Electronics for Imaging, 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 a hearing on the company's motion to dismiss a class action lawsuit has not yet been scheduled. On August 10, 2017, a putative class action was filed against the Company and its two named executive officers in the United States District Court for the District of New Jersey, captioned Pipitone v. Electronics For Imaging, Inc., No. 2:17-cv-5992 (D.N.J.). A First Amended Complaint was filed on February 20, 2018. The plaintiffs allege, among other things, that statements by the Company and its officers about the Company's financial reporting, revenue recognition, internal controls, and disclosure controls and procedures were false or misleading. The complaint seeks an unspecified amount of damages, interest, attorneys' fees, and other costs, on behalf of a putative class of individuals and entities that purchased or otherwise acquired Electronics For Imaging, Inc. (EFI) securities from February 22, 2017 through August 3, 2017. EFI filed a motion to dismiss on April 23, 2018. The plaintiffs filed an opposition on May 23, 2018, and EFI filed its reply brief on June 13, 2018. A hearing on EFI's motion to dismiss has not yet been scheduled. Electronics for Imaging SAID, "At this time, we do not believe it is probable that we will incur a material loss in this matter. However, it is reasonably possible that our financial statements could be materially affected by an unfavorable resolution of this matter. Since this matter is in the preliminary stages, we are not yet in a position to estimate the amount or range of reasonably possible loss that may be incurred." No further updates were provided in the Company's SEC report. Electronics for Imaging, Inc. provides industrial format display graphics, corrugated packaging and display, textile, and ceramic tile decoration digital inkjet printers worldwide. Electronics for Imaging, Inc. was founded in 1988 and is headquartered in Fremont, California. EZCORP INC: Still Defends Consolidated Federal Securities Lawsuit ----------------------------------------------------------------- EZCORP, Inc. disclosed in its Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended September 30, 2018, that it still defends itself against a federal securities litigation. On July 20, 2015, Wu Winfred Huang, a purported holder of Class A Common Stock, for himself and on behalf of other similarly situated holders of Class A Common Stock, filed a lawsuit in the United States District Court for the Western District of Texas styled Huang v. EZCORP, Inc., et al. (Case No. 1:15-cv-00608-SS). The complaint names as defendants EZCORP, Inc., Stuart I. Grimshaw (chief executive officer) and Mark E. Kuchenrither (former chief financial officer) and asserts violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder. The original complaint related to the Company's announcement on July 17, 2015 that it will restate the financial statements for fiscal 2014 and the first quarter of fiscal 2015, and alleged generally that the Company issued materially false or misleading statements concerning the Company, its finances, business operations and prospects and that the Company misrepresented the financial performance of the Grupo Finmart business. On August 14, 2015, a substantially identical lawsuit, styled Rooney v. EZCORP, Inc., et al. (Case No. 1:15-cv-00700-SS) was also filed in the United States District Court for the Western District of Texas. On September 28, 2015, the plaintiffs in these two lawsuits filed an agreed stipulation to be appointed co-lead plaintiffs and agreed that their two actions should be consolidated. On November 3, 2015, the Court entered an order consolidating the two actions under the caption In re EZCORP, Inc. Securities Litigation (Master File No. 1:15-cv-00608-SS), and appointed the two plaintiffs as co-lead plaintiffs, with their respective counsel appointed as co-lead counsel. On January 11, 2016, the plaintiffs filed an Amended Class Action Complaint (the "Amended Complaint"). In the Amended Complaint, the plaintiffs seek to represent a class of purchasers of the Company's Class A Common Stock between November 6, 2012 and October 20, 2015. The Amended Complaint asserts that the Company and Mr. Kuchenrither violated Section 10(b) of the Securities Exchange Act and Rule 10b-5, issued materially false or misleading statements throughout the proposed class period concerning the Company and its internal controls, specifically regarding the financial performance of Grupo Finmart. The plaintiffs also allege that Mr. Kuchenrither, as a controlling person of the Company, violated Section 20(a) of the Securities Exchange Act. The Amended Complaint does not assert any claims against Mr. Grimshaw. On February 25, 2016, defendants filed a motion to dismiss the lawsuit. The plaintiff filed an opposition to the motion to dismiss on April 11, 2016, and the defendants filed their reply on May 11, 2016. The Court held a hearing on the motion to dismiss on June 22, 2016. On October 18, 2016, the Court granted the defendants' motion to dismiss and dismissed the Amended Complaint without prejudice. The Court gave the plaintiffs 20 days (until November 7, 2016) to file a further amended complaint. On November 4, 2016, the plaintiffs filed a Second Amended Consolidated Class Action Complaint ("Second Amended Complaint"). The Second Amended Complaint raises the same claims dismissed by the Court on October 18, 2016, except plaintiffs now seek to represent a class of purchasers of EZCORP's Class A Common Stock between November 7, 2013 and October 20, 2015 (instead of between November 6, 2012 and October 20, 2015). On December 5, 2016, defendants filed a motion to dismiss the Second Amended Complaint. The plaintiffs filed their opposition to the motion to dismiss on January 6, 2017, and the defendants filed their reply brief on January 20, 2017. On May 8, 2017, the Court granted the defendants' motion to dismiss with regard to claims related to accounting errors relating to Grupo Finmart's bad debt reserve calculations for "nonperforming" loans, but denied the motion to dismiss with regard to claims relating to accounting errors related to certain sales of loan portfolios to third parties. Following discovery on the surviving claims, the plaintiff filed a Motion for Leave to File a Third Amended Complaint, seeking to revive the "nonperforming" loan claims that the Court previously dismissed. The Company opposed that motion, and on May 14, 2018, the Court heard oral arguments on the motion, as well as plaintiff's Motion for Class Certification and Appointment of Class Representative and Class Counsel, which was also pending. On July 26, 2018, the Court granted the plaintiff's motion for leave to amend, thus accepting the Third Amended Consolidated Class Action Complaint, and the Company filed its answer on August 3, 2018. On August 31, 2018, the plaintiff filed an Amended Motion for Class Certification and Appointment of Class Representative and Class Counsel, and the Company filed its opposition on September 28, 2018. The Court had scheduled a hearing on that motion for November 15, 2018. The Company said, "We cannot predict the outcome of the litigation, but we intend to continue to defend vigorously against all allegations and claims." EZCORP, Inc. provides pawn loans. It operates through three segments: U.S. Pawn, Latin America Pawn, and Other International. EZCORP, Inc. was founded in 1989 and is headquartered in Austin, Texas. FACEBOOK INC: May Face Class Action for Violating GDPR ------------------------------------------------------ DLA Piper said that on November 8, 2018, French NGO Internet Society France sent Facebook a formal notice listing seven areas where it has allegedly infringed GDPR. The French Chapter of the Internet Society, a global organization that notably defends the rights of Internet users, formally requested that Facebook explain seven failures to comply with GDPR. The notice is addressed to both Facebook France, Facebook Ireland Ltd. and Facebook Inc., acting respectively as controllers or joint controllers, and concern the social networks Facebook, Instagram and Whatsapp. 1. The Legal basis of Internet Society France action This action is based on Article 43 ter of the French Data Protection Act, according to which, when several individuals who are in a similar situation suffer a loss resulting from a violation of GDPR or the French data protection law committed by a data controller or a data processor, a class action may be filed before a civil or administrative court having jurisdiction. Such class action may only be brought by certain categories of organizations, including associations that have been duly registered for at least 5 years and whose statutory purpose is the protection of privacy and personal data, which is the case of the Internet Society France. For additional information on the data protection class action in France, you can read our previous post here. It is the first time that article 43 ter is used as a basis to launch a judicial class action for compensation. In this respect, it must be recalled that before the adoption of the new French data protection law in June 2018, data protection class actions could only seek injunctive relief; the class action could not be used to claim damages. However, since June 20, class action litigants are entitled to both seek injunctive relief and claim compensation for their material and moral losses, in accordance with GDPR. 1. Seven grievances: recurring violations of freedoms and privacy The Internet Society France reproached Facebook for: * Failing to comply with its obligation to ensure the security of the personal data of its users, in relation with the breach of personal data that has impacted Facebook services in September 2018; * Failing to communicate the breach of personal data to the data subjects, notably for not having communicated the breach individually, using the contact details (email address and mobile phone number) provided by its users; * Failing to comply with the prohibition to process special categories of personal data, notably data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or concerning a person's sex life or sexual orientation, without the data subject's consent or any other acceptable legal basis; * Failing to comply with the notice, consent and legal basis requirements when installing DATR cookies or other tracking cookies and collecting personal data in a massive way; * Limiting its liability with respect to the processing of personal data in its terms of use; * Combining personal data of Whatsapp and Facebook users without their free, specific and informed consent and without an appropriate legal basis; and * Not providing users with a mechanism to exercise their right of objection to the processing of personal data. 1. The Internet Society France's demands The NGO enjoins Facebook, within 4 months, to: * Secure its services against personal data breaches in order to ensure a level of security appropriate to the risks and in line with the state of the art; * Communicate effectively the breach of personal data to the data subjects, notably by sending an individual notice using the contact details provided by the users; * Cease any processing of special categories of personal data that is not justified by the data subject's consent or another appropriate legal basis; * Properly inform data subjects about the processing relating to the DATR cookie or other tracking cookies, and cease combining Internet users, registered or not, connected or not, to the Facebook services, for advertising purposes without the users' specific, free, informed and unambiguous consent; * Remove any liability limitation clauses from its terms of use; * Obtain the specific, free, informed and unambiguous consent of Whatsapp and Facebook users for combining their data; * Implement an effective tool allowing data subjects to exercise their right to object. The Internet Society France also demands that the Internet giant compensate each data subject impacted by these violations by paying EUR 1000 per grievance, unless it can legally explain or justify them. 1. What does Facebook risk? If Facebook fails to respond within the allocated timeframe, the Internet Society France will file a judicial class action with the Paris High Court (tribunal de grande instance). The NGO considers that "the grievances -- if not refuted by Facebook -- could represent damages that could be compensated by up to 1,000 euros per person. So if 100,000 people join this lawsuit, 100 million euros will be demanded of Facebook. In Europe, Facebook alone had 278 million users in the third quarter of 2018. The Internet Society France, French chapter of an international NGO that federates Internet users from more than 100 countries, believes that it is the opportunity to ensure that a European civil society voice be heard". If it moves forward, this action could indeed be the opportunity to send a strong signal to the international community that the protection of personal data matters to people and that they are ready to take control of their data, as promoted by the European legislator. [GN] FAIRFIELD INDUSTRIES: Court Narrows Claims in Senegal Suit ---------------------------------------------------------- In the case, DARNELL SENEGAL, individually and on behalf of others similarly situated, Plaintiff, v. FAIRFIELD INDUSTRIES, INC., d/b/a FAIRFIELD NODAL, Defendant, Civil Action No. H-16-2113 (S.D. Tex.), Magistrate Judge Nancy K. Johnson of the U.S. District Court for the Southern District of Texas, Houston Division, (i) granted in part and denied in part the Plaintiff's Motion for Partial Summary Judgment; (ii) granted in part and denied in part the Defendant's Motion for Summary Judgment; and (iii) denied the Defendant's Motion for Decertification. Senegal filed the action against the Defendant under the Fair Labor Standards Act2 ("FLSA"). The Plaintiff alleged that the Defendant violated the FLSA by failing to pay the Plaintiff and other similarly situated employees their statutorily required overtime pay. The Defendant offers geological survey services to the oil and gas industry by using oceanographic seismic vessels to perform the surveys. These vessels had a marine crew and a seismic crew. The Plaintiffs worked as part of the seismic crew, which consisted of observers, the gun department, mechanics, navigators, and marine mammal observers. The Plaintiff was employed by the Defendant from August 1994 to May 2016, and worked as a lineman, boat operator, gun mechanic helper, and gun mechanic shift leader. The Defendant began paying its employees a day rate based on 12-hour days. The day-rate plan allegedly pays employees for 87.50 hours per week and incorporates 47.50 hours of overtime per week. Under the day-rate plan, employees made the same amount of pay regardless of the number of hours worked. A second component of the Defendant's pay plan included its accrued-days-off policy. In 2000, it began giving employees one paid day off per day worked. Thus, because its employees worked four-or five-week shifts followed by an equal amount of days off, they essentially received pay for every day whether they were working a shift or not. As a result of the policy, the Defendant's employees' day rate was decreased. The Defendant discontinued the day-rate and days-off policies on Dec. 19, 2015. It paid the Plaintiffs pursuant to the day-rate plan and days-off policy from 2000 through December 2015. The Defendant ceased all operation and ownership of vessels in May 2016. The Plaintiff filed his complaint on July 15, 2016, alleging violations of the FLSA. He filed an amended complaint on Sept. 26, 2016. The Plaintiff filed a motion to certify class on Nov. 14, 2016, seeking to certify the class of all current and former seismic crewmembers employed by the Defendant and paid on a day-rate basis at any time during the last three years. The proposed class of seismic crewmembers includes: observers (i.e., the linesman (or line chiefs), junior observers, shift lead observers, chief observers, and party managers); the gun department (i.e., gun mechanic helpers, gun mechanic trainees, gun mechanics, gun shift leaders, and gun mechanic chiefs); the mechanics (i.e., compressor mechanics and back deck mechanics); the navigators (i.e., the navigators, shift lead navigators, and chief navigators); and marine mammal observers. On March 27, 2017, in a memorandum opinion, the Court conditionally certified the Plaintiff's proposed class. However, at the same time, it dismissed all marine crewmembers who had opted into the Plaintiff's lawsuit as they were not seismic crewmembers. At the time of the Court's opinion, over 40 putative class members had opted into the lawsuit. Since the Court conditionally certified the Plaintiff's proposed class, over 90 additional putative class members have opted into the lawsuit. On April 11, 2018, the Plaintiff filed its pending motion for partial summary judgment and asks that the court find that: (1) the Defendant's pay practices violated the FLSA; (2) the Defendant's violation was willful; (3) there was not a goodfaith basis for the Defendant's pay practices; (4) the seismic crewmembers were not exempt executive, administrative or professional employees; (5) the seismic crewmembers were not exempt seamen; and (6) the seismic crewmembers did not qualify for the FLSA's foreign exemption. On May 4, 2018, the Defendant filed its pending motion for summary judgment. It requests that the Court finds that: (1) its pay practices did not violate the FLSA; (2) the Plaintiffs are not entitled to compensation for time spent unloading groceries, attending safety meetings, or participating in safety drills; (3) the Defendant's payments for accrued days off are excluded from the regular rate for overtime purposes; and (4) the Plaintiffs cannot prove damages because they failed to provide damages calculations. Additionally, on May 4, 2018, the Defendant moves for decertification of the Plaintiff's conditionally certified class on the basis that: (1) the Plaintiff cannot establish liability on a class-wide basis; (2) the Defendant has numerous individualized defenses that are not uniformly applicable to the entire class; and (3) fairness and procedural considerations require decertification. Following an unopposed motion, the Court dismissed seven inactive opt-in Plaintiffs on May 11, 2018. Magistrate Judge Johnson granted the Plaintiff's motion for partial summary judgment as to: (1) the Defendant's executive, administrative, and professional FLSA exemption defenses; (2) the Defendant's seamen FLSA exemption defense, except against the two Plaintiffs in a limited capacity; (3) the Defendant's foreign FLSA exemption defense against all the Plaintiffs who worked aboard an American flagged vessel throughout the relevant time period. She denied all other relief requested in the Plaintiff's motion for summary judgment. The Magistrate Judge granted in part the Defendant's motion for summary judgment such that that the Plaintiff cannot claim hours worked for time spent unloading groceries. The Magistrate denied all other relief requested by the Defendant's motion for summary judgment. She also denied the Defendant's motion for decertification. Among other things, she finds that the Plaintiffs claims arise from the Defendant's generally applicable pay policy. While the Defendant is correct that some individual issues are present, the predominant issue is whether the Defendant paid the Plaintiffs a fixed daily rate for varied amounts of work. A full-text copy of the Court's Nov. 21, 2018 Memorandum Opinion is available at https://is.gd/32t414 from Leagle.com. Darnell A. Senegal, Plaintiff, represented by Curt Christopher Hesse, Moore & Associates & Melissa Moore, Moore & Associates. Kenneth Butler, Gregory Carter, Rodney Erin Dockstader, Christopher J Briggs, Kelvin Myles, Ron Kyle Weaver, Justin Brown, Shane Bumstead, Richard Brian Case, Jason Celli, Francisco Randy Sanchez, Gregory D. Cantlon, William B. Lee, Daniel J. Anderson, Nathan Pearson, Paul D. Wilson, Clayborn Varnado, Neal J. Estay, Vincent M. Jacob, Joseph Elliott, Christopher Anderson, Antonio Alfaro, Stephen Lee, Jason LeMaster, Frank Johnson, Edward Willoughby, Christopher Michael Rohe, Carl J. Serie, Gerald Crum, Isaiah Elliott, Robert G Larson, Ethan McNelly, Jonathan Cary, Nicholas Bradford, Robert J. Williams, Sr., Timothy Allen Washington, Jason Clarke, Clinton Riether, Douglas Hood, Jr., Herbert Fisher, Joshua Douglas, Shawn Weltzin, Gregory C. Thibodeaux, Edward Toner, Joshua J. Gonzalez, James T. Lightning, Jr., Vincent Hayes, Jr., Kevin Robertson, Jr., Jeno Flores, Patrick Arvie, James R. Conwell, Jeffrey D. Litman, Norris J. Gessinger, Jr., William E. Nichols, Jason K Reed, Terry Elmore, Mark Watson, Ben Morgel, Jamieson Gilmore, Kevin Ferguson, Landon Lenard, Austin Calais, Josh Fisher, Delanious Harried, Reindon Paul Raymond, Thomas William Leach, II, Justin St. Germain, Mark S. Wooley, Brandon Lamb, Jason Farrar, Ishmael Surajballi, Leo Aguilar, Eric Gilcrease, Devin Andres Salemi, Jaime Emery, Adam Whitehead, Effery Freeman, Carlos Casildo, Sr., Clifton Heath Miller & Scott Tankersley, Plaintiffs, represented by Melissa Moore, Moore & Associates. Fairfield Industries Incorporated, Defendant, represented by Reed Lock Russell -- reed.russell@phelps.com -- Phelps Dunbar LLP, Thomas H. Kiggans -- tom.kiggans@phelps.com -- Phelps Dunbar LLP & Jessica C. Huffman -- jessica.huffman@phelps.com -- Phelps Dunbar LLP. FAT BRANDS: Alden Class Suit Gets Merged with Rojany Case --------------------------------------------------------- FAT Brands Inc. disclosed in its Form 10-Q filed with the U.S. Securities and Exchange Commission on November 14, 2018, for the quarterly period ended September 30, 2018, that two potential class action suits have been consolidated. The cases are: * Eric Rojany, et al. v. FAT Brands Inc., et al., Superior Court of California for the County of Los Angeles, Case No. BC708539; and * Daniel Alden, et al. v. FAT Brands Inc., et al., Superior Court of California for the County of Los Angeles, Case No. BC716017. On June 7, 2018, Eric Rojany filed a complaint, personally and on behalf of all others similarly situated, against the Company, Andrew Wiederhorn, Ron Roe, Fog Cutter Capital Group, Inc., Tripoint Global Equities, LLC and members of the Company's board of directors. The complaint asserts claims under Sections 12(a)(2) and 15 of the Securities Act of 1933, alleging that the defendants are responsible for false and misleading statements and omitted material facts in connection with the Company's initial public offering, which resulted in declines in the price of the Company's common stock. The plaintiff stated that he intends to certify the complaint as a class action and is seeking compensatory damages in an amount to be determined at trial. The Company and other defendants dispute the allegations of the lawsuit and intend to vigorously defend against the claims. On August 2, 2018, Daniel Alden and others filed a complaint, personally and on behalf of all others similarly situated, against the Company, Andrew Wiederhorn, Ron Roe, Fog Cutter Capital Group, Inc., Tripoint Global Equities, LLC and members of the Company's board of directors. The complaint asserts claims under Sections 12(a)(2) and 15 of the Securities Act of 1933, alleging that the defendants are responsible for false and misleading statements and omitted material facts in connection with the Company's initial public offering, which resulted in declines in the price of the Company's common stock. The plaintiff stated that he intends to certify the complaint as a class action and is seeking compensatory damages in an amount to be determined at trial. The Company and other defendants dispute the allegations of the lawsuit and intend to vigorously defend against the claims. On September 13, 2018, counsel to all parties in Rojany and Alden stipulated to the consolidation of Rojany and Alden under the Rojany case number. On September 17, 2018, the Court in Rojany confirmed that the two actions were related and ordered that Alden be transferred to the judge presiding over Rojany. On October 10, 2018, plaintiffs in these actions filed a consolidated amended complaint ("CAC"). Pursuant to the Court's order on September 17, 2018, defendants shall have until November 13, 2018 to file a response to the CAC. The Court scheduled the hearing for defendants' anticipated demurrer to the CAC for January 11, 2019. The Court also continued a stay of discovery in the action, pending its ruling on defendants' anticipated demurrer. Fat Brands Inc., a multi-brand franchising company, acquires, markets, and develops fast casual and casual dining restaurant concepts. The company was founded in 2017 and is headquartered in Beverly Hills, California. FAT Brands Inc. is a subsidiary of Fog Cutter Capital Group Inc. FAT BRANDS: Bid for Lead Plaintiff, Counsel Pending in "Vignola" ---------------------------------------------------------------- FAT Brands Inc. remains a defendant in a potential class action initiated by Adam Vignola, 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 case is styled Adam Vignola, et al. v. FAT Brands Inc., et al., United States District Court for the Central District of California, Case No. 2:18-cv-07469. On August 24, 2018, Adam Vignola filed a complaint, personally and on behalf of all others similarly situated, against the Company, Andrew Wiederhorn, Ron Roe, Fog Cutter Capital Group, Inc., Tripoint Global Equities, LLC and members of the Company's board of directors. The complaint asserts claims under Sections 12(a)(2) and 15 of the Securities Act of 1933, alleging that the defendants are responsible for false and misleading statements and omitted material facts in connection with the Company's initial public offering, which resulted in declines in the price of the Company's common stock. The plaintiff stated that he intends to certify the complaint as a class action and is seeking compensatory damages in an amount to be determined at trial. The Company and other defendants dispute the allegations of the lawsuit and intend to vigorously defend against the claims. On October 23, 2018, Charles Jordan and David Kovacs filed a motion for appointment as lead plaintiffs and approval of choice of counsel. On the same day, Randy Siade filed a motion for appointment as lead plaintiff and approval of choice of counsel. The hearing date for these motions was set for November 26, 2018. On November 1, 2018, Randy Siade withdrew his motion for appointment as lead plaintiff and approval of choice of counsel. All discovery and other proceedings in this action are currently stayed by operation of the Private Securities Litigation Reform Act of 1995. Fat Brands Inc., a multi-brand franchising company, acquires, markets, and develops fast casual and casual dining restaurant concepts. The company was founded in 2017 and is headquartered in Beverly Hills, California. FAT Brands Inc. is a subsidiary of Fog Cutter Capital Group Inc. FGF BRANDS: Faces Class Action Over Stonefire Naan Products ----------------------------------------------------------- Courthouse News Service reported that a class of consumers says FGF Brands falsely claimed that its Stonefire naan products were baked in a traditional tandoor oven, when they were actually mass-produced in a commercial conveyor-belt oven system. FIFTH THIRD: Appeal in Early Access Cash Advance Suit Pending ------------------------------------------------------------- Fifth Third Bank 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 plaintiffs in the case, In re: Fifth Third Early Access Cash Advance Litigation, have taken an appeal from a court ruling to the U.S. Court of Appeals for the Sixth Circuit. On August 3, 2012, William Klopfenstein and Adam McKinney filed a lawsuit against Fifth Third Bank in the United States District Court for the Northern District of Ohio (Klopfenstein et al. v. Fifth Third Bank), alleging that the 120% APR that Fifth Third disclosed on its Early Access program was misleading. Early Access is a deposit-advance program offered to eligible customers with checking accounts. The plaintiffs sought to represent a nationwide class of customers who used the Early Access program and repaid their cash advances within 30 days. On October 31, 2012, the case was transferred to the United States District Court for the Southern District of Ohio. In 2013, four similar putative class actions were filed against Fifth Third Bank in federal courts throughout the country (Lori and Danielle Laskaris v. Fifth Third Bank, Janet Fyock v. Fifth Third Bank, Jesse McQuillen v. Fifth Third Bank, and Brian Harrison v. Fifth Third Bank). Those four lawsuits were transferred to the Southern District of Ohio and consolidated with the original lawsuit as In re: Fifth Third Early Access Cash Advance Litigation (Case No. 1:12-CV-00851). On behalf of a putative class, the plaintiffs seek unspecified monetary and statutory damages, injunctive relief, punitive damages, attorney's fees, and pre- and post-judgment interest. On March 30, 2015, the court dismissed all claims alleged in the consolidated lawsuit except a claim under the TILA. On January 10, 2018, plaintiffs filed a motion to hear the immediate appeal of the dismissal of their breach of contract claim. On March 28, 2018, the court granted plaintiffs' motion and stayed the TILA claim pending that appeal. On April 26, 2018, plaintiffs filed their notice of appeal for the breach of contract claim with the U.S. Court of Appeals for the Sixth Circuit. Fifth Third Bank provides banking products and services for personal and business needs. Its personal banking products and services include checking accounts, savings accounts, preferred programs, credit cards, debit cards, real life rewards, reloadable prepaid cards, cash banking, mortgages, equity lines and loans, auto financing, personal lines of credit and loans, CDs, IRAs, investments, insurance strategies, planning center, Internet banking and online bill payment, mobile banking, overdraft coverage, early access, and identity theft protection. The company was founded in 1927 and is headquartered in Cincinnati, Ohio with locations in Ohio, Florida, Georgia, Illinois, Indiana, Kentucky, Michigan, Missouri, North Carolina, Pennsylvania, Tennessee, and West Virginia. Fifth Third Bank operates as a subsidiary of Fifth Third Financial Corporation. FIFTH THIRD: Approval of Damages Class Settlement Sought -------------------------------------------------------- Fifth Third Bank 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 the Plaintiff Damages Class filed a Motion for Preliminary Approval of the Amended Settlement Agreement. In April 2006, the Bancorp was added as a defendant in a consolidated antitrust class action lawsuit originally filed against Visa(R), MasterCard(R) and several other major financial institutions in the United States District Court for the Eastern District of New York (In re: Payment Card Interchange Fee and Merchant Discount Antitrust Litigation, Case No. 05-MD-1720). The plaintiffs, merchants operating commercial businesses throughout the U.S. and trade associations, claimed that the interchange fees charged by card-issuing banks were unreasonable and sought injunctive relief and unspecified damages. In addition to being a named defendant, the Bancorp is also subject to a possible indemnification obligation of Visa and has also entered into judgment and loss sharing agreements with Visa, MasterCard and certain other named defendants. In October 2012, the parties to the litigation entered into a settlement agreement. On January 14, 2014, the trial court entered a final order approving the class settlement. A number of merchants filed appeals from that approval. The U.S. Court of Appeals for the Second Circuit held a hearing on those appeals and on June 30, 2016, reversed the district court's approval of the class settlement, remanding the case to the district court for further proceedings. On March 27, 2017, the Supreme Court of the United States denied a petition for writ of certiorari seeking to review the Second Circuit's decision. Pursuant to the terms of the overturned settlement agreement, the Bancorp previously paid $46 million into a class settlement escrow account. Approximately 8,000 merchants requested exclusion from the class settlement, and therefore, pursuant to the terms of the overturned settlement agreement, approximately 25% of the funds paid into the class settlement escrow account were already returned to the control of the defendants. The remaining approximately 75% of the settlement funds paid by the Bancorp are maintained in the escrow account. More than 500 of the merchants who requested exclusion from the class filed separate federal lawsuits against Visa, MasterCard and certain other defendants alleging similar antitrust violations. These individual federal lawsuits were transferred to the United States District Court for the Eastern District of New York. While the Bancorp is only named as a defendant in one of the individual federal lawsuits, it may have obligations pursuant to indemnification arrangements and/or the judgment or loss sharing agreements noted above. On June 5, 2018, the defendants in the consolidated class action reached an agreement to settle in principle with the proposed plaintiffs' class seeking monetary damages (the "Plaintiff Damages Class"). On September 17, 2018, those parties signed a settlement agreement (the "Amended Settlement Agreement") superseding the original settlement agreement entered into in October 2012. The Amended Settlement Agreement includes, among other terms, a release from participating class members for liability for claims that accrue no later than five years after the Amended Settlement Agreement becomes final. The Amended Settlement Agreement provides for a total payment by all defendants of $6.24 billion, composed of approximately $5.3 billion held in escrow and an additional $900 million. The Bancorp’s allocated share of the putative settlement is within existing reserves. If more than 15% of class members (by payment volume) opt out of the class, up to $700 million of the settlement payment may be returned to the defendants. The settlement is subject to District Court approval, and on September 18, 2018, the Plaintiff Damages Class filed a Motion for Preliminary Approval of the Amended Settlement Agreement. This settlement does not resolve the claims of the separate proposed plaintiffs’ class seeking injunctive relief or the claims of merchants who are pursuing separate lawsuits. Fifth Third Bank provides banking products and services for personal and business needs. Its personal banking products and services include checking accounts, savings accounts, preferred programs, credit cards, debit cards, real life rewards, reloadable prepaid cards, cash banking, mortgages, equity lines and loans, auto financing, personal lines of credit and loans, CDs, IRAs, investments, insurance strategies, planning center, Internet banking and online bill payment, mobile banking, overdraft coverage, early access, and identity theft protection. The company was founded in 1927 and is headquartered in Cincinnati, Ohio with locations in Ohio, Florida, Georgia, Illinois, Indiana, Kentucky, Michigan, Missouri, North Carolina, Pennsylvania, Tennessee, and West Virginia. Fifth Third Bank operates as a subsidiary of Fifth Third Financial Corporation. FIRST SOLAR: Trial Date in Smilovits Class Suit Vacated ------------------------------------------------------- First Solar, Inc. said in its Form 8-K filing with the U.S. Securities and Exchange Commission filed on November 20 , 2018, 2018, that the Arizona District Court vacated the previously scheduled trial date in Smilovits v. First Solar, Inc., et al., until the outcome of the certiorari petition is clear. On March 15, 2012, a purported class action lawsuit titled Smilovits v. First Solar, Inc., et al., Case No. 2:12-cv-00555-DGC, was filed in the United States District Court for the District of Arizona (the "Arizona District Court") against the Company and certain of its current and former directors and officers (the "Defendants"). The complaint was filed on behalf of persons who purchased or otherwise acquired the Company's publicly traded securities between April 30, 2008 and February 28, 2012 (the "Class Action"). The complaint generally alleges that the Defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 by making false and misleading statements regarding the Company's financial performance and prospects. The action includes claims for damages, including interest, and an award of reasonable costs and attorneys' fees to the putative class. On August 11, 2015, the Arizona District Court granted Defendants' motion for summary judgment in part and denied it in part, and certified an issue for immediate appeal to the United States Court of Appeals for the Ninth Circuit (the "Ninth Circuit"). On January 31, 2018, the Ninth Circuit issued an opinion affirming the order of the Arizona District Court. On August 6, 2018, Defendants filed a petition for writ of certiorari to the U.S. Supreme Court. The Court has not yet ruled on that petition. On November 14, 2018, the Arizona District Court vacated the previously scheduled trial date until the outcome of the certiorari petition is clear. First Solar, Inc. provides photovoltaic solar energy solutions in the United States and internationally. It operates through two segments, Components and Systems. The company was formerly known as First Solar Holdings, Inc. and changed its name to First Solar, Inc. in 2006. First Solar, Inc. was founded in 1999 and is headquartered in Tempe, Arizona. FLIK INT'L: Court Grants Protective Order in Clarke FLSA Suit ------------------------------------------------------------- The United States District Court for the District of New Jersey issued an Order granting Defendant's Motion for Protective Order in the case captioned JAMES CLARKE, for himself and all others similarly situated, Plaintiff, v. FLIK INTERNATIONAL CORP. and COMPASS GROUP USA, INC., Defendants. Civil Action No. 17-1915 (SRC). (D.N.J.). This matter comes before this Court on the motion by Defendants for a protective order, in particular, an order which would direct counsel for Plaintiff James Clarke to revise its website insofar as the website publishes information concerning this action. The Plaintiff filed this FLSA action as a putative collective action, under FLSA Section 216(b), seeking recovery for (1) unpaid wages for alleged off-the-clock work performed by Clarke and other similarly situated employees and (2) uncompensated travel time and expenses. The Plaintiff's counsel proceeded to disseminate notice of this litigation to others who may wish to join the collective action. The method of communicating to prospective opt-ins has included publication of information related to this suit on the website belonging to Stephan Zouras LLP, the law firm representing Plaintiff Clarke. The Defendants have moved for this protective order on the grounds that the information published on the website contains misleading information about the instant lawsuit and includes references beyond the scope of the notice approved by the Court, for example to companywide policies resulting in off-the-clock work and to the law firm's investigation into possible wage violations at other Flik and Compass locations which number hundreds of locations nationwide. The Plaintiff invoked the Court's power to assist with providing notice to potential litigants who may wish to join this lawsuit. By doing so, the Plaintiff and his counsel subjected themselves to the reasonable limitations imposed by the Court on the Plaintiff's communications to notify others of this lawsuit and to solicit eligible individuals to opt in to this collective action. When this Court approved the notice that the Plaintiff was permitted to send to possible opt-in plaintiffs, the terms of that notice, by implication, applied to the substance of all other efforts by the Plaintiff and/or his counsel to solicit participation in this action. The Court has no doubt regarding its authority to require that the Plaintiff's notice to potential opt-ins as well as his communications related to this collective action be reasonably restricted and tailored to the class and claims which have been conditionally certified. It is apparent to the Court that the information concerning this lawsuit published on the Stephan Zouras website does not conform in numerous respects to the limitations which the Court set forth in its August 16, 2018 ruling on the Plaintiff's motion for conditional certification. The Court is satisfied that the Defendants are indeed entitled to a protective order limiting the information contained on any page or portion of the Stephan Zouras website which pertains to this lawsuit. In particular, any reference on the website to claims which the Court has refused to certify as part of this collective action is inappropriate and potentially confusing to individuals who may be considering whether or not to join the lawsuit. The Plaintiff's counsel is therefore directed to consult with counsel for the Defendants concerning the revision of the Stephan Zouras website content to conform to this Court's grant of conditional certification and related approval of notice of this collective action to prospective opt-ins. A full-text copy of the District Court's November 19, 2018 Opinion and Order is available at https://tinyurl.com/y9gmanay from Leagle.com. JAMES CLARKE, for himself and all others similarly situated, Plaintiff, represented by DAVID J. COHEN -- dcohen@stephanzouras.com FLIK INTERNATIONAL CORP. & COMPASS GROUP USA, INC, Defendants, represented by BRIAN JEFFREY GERSHENGORN -- bgershengorn@fisherphillips.com -- FISHER & PHILLIPS LLP. GANNETT CO: Clark TCPA Suit Remanded to Ill. State Court -------------------------------------------------------- In the case captioned RAMONA CLARK and DYLAN SCHLOSSBERG, Individually and on Behalf of All Others Similarly Situated, Plaintiffs-Appellees and Cross-Appellants, v. GANNETT CO., INC., a Delaware Corporation, Defendant-Appellee, (Gary Stewart, Objector-Appellant and Cross-Appellee; Christopher A. Bandas and C. Jeffrey Thut, Cross-Appellees), No. 1-17-2041 (Ill. App.), the Appellate Court of Illinois reverses the ruling of the trial court granting a motion in limine to exclude evidence of objector's counsel's pattern of conduct in representing objectors in class action lawsuits. Thus, the Court remands for new Rule 137 hearing at which this evidence will be admitted to determine whether the objection was filed for an improper purpose. Here, Plaintiffs alleged that Gannett violated the Telephone Consumer Protection Act by promoting the sale of its newspapers through unsolicited marketing calls to cellular telephones of a class of about 2.6 million individuals. Plaintiffs sought actual and statutory damages, an injunction on unsolicited calls, and declaratory relief. In January 2014, Richard Casagrand and Schlossberg filed an almost identical lawsuit in the U.S. District Court for the District of New Jersey. About two years later, during which little formal discovery appears to have been exchanged, the parties spent a full day in mediation with former federal Judge Wayne R. Andersen. In April, the parties held another full day with Judge Andersen. Next, Casagrand and Schlossberg voluntarily dismissed the New Jersey case, and in May 2016, Schlossberg along with Clark (in place of Casagrand) refiled the virtually identical case in the chancery division of the circuit court of Cook County. By July, the parties had signed a settlement agreement establishing a nonreversionary fund of $13.8 million. Gannett also promised to initiate various measures designed to ensure compliance with the Act and prevent future unwanted telemarketing calls to consumers. On the matter of class counsel's attorneys' fees, the settlement agreement provided: "Class Counsel will petition the Court for an award of reasonable attorneys' fees," which class counsel agreed "to limit" at "no more than 39% of the Settlement Fund." The following month, in August 2016, Judge Kathleen Kennedy preliminarily approved the settlement and directed notice to a settlement class. According to the parties, 99% of the settlement class of 2.6 million members received direct notice of the suit. About 50,000 members made claims to participate in the settlement. Absent from the record is a transcript of the preliminary hearing. In October, class counsel moved for an award of attorneys' fees, expenses, and an incentive award for the class representatives. The sole objector to the settlement was Stewart. His participation was solicited by a disbarred California attorney, Darrell Palmer, who referred Stewart to Texas attorney Christopher A. Bandas. In turn, Bandas contacted Chicago attorney C. Jeffrey Thut to act as his local counsel. On the last day for filing objections, Thut signed and filed an objection prepared by Bandas. After the trial court overruled objector counsel's boilerplate objections to the settlement agreement and attorneys' fees, class counsel Edelson PC decided to expose what they regarded as a farce by moving under Illinois Supreme Court Rule 137 for sanctions against objector's counsel. Edelson PC claims that Bandas-Thut's motive for objecting was nothing short of disingenuous and Bandas-Thut interposed the last-minute objection for their own pecuniary interests, their own self-interests; in other words, to extort a fee for themselves. For this reason, Edelson PC moved for Rule 137 sanctions against Bandas-Thut, asserting that the objection was filed for "an improper purpose." The trial court held a hearing on the Rule 137 motion. Objector Stewart, who had been ordered to appear at the hearing, was a no-show. The trial court held Stewart in contempt, fined him $500, and struck his objections to the settlement and attorneys' fees. The trial court also denied sanctions against objector's counsel. Stewart appeals the trial court's contempt order. But, his notice of appeal is defective. The notice of appeal identifies an order that had been withdrawn and omits mention of the superseding order issued four days later. Thus, this court lacks jurisdiction to review Stewart's contempt finding, and it stands. Stewart also appeals the trial court's order denying his objections to the class settlement and granting the full amount of class counsel's request for attorneys' fees. Because the contempt order stands, and that order struck his objections, the Court need not address his objections. After reviewing the records, the Court finds that Bandas and Thut, and Stewart by extension, have taken advantage of a situation described as "murky" and with "unpredictable" or "sporadic" enforcement, with a "vastly uncertain" scope of jurisdictional restrictions in various states. Both attorneys have engaged in a fraud on the court. Thus, the Court reverses the judgment of the circuit court of Cook County and remands for further proceedings. A copy of the Court's Opinion dated Nov. 20, 2018 is available at https://bit.ly/2zDxSvg from Leagle.com. GENERAL ELECTRIC: Sued over Microwave Oven Paint Peeling Problem ---------------------------------------------------------------- DANIEL SURIAGA, on behalf of himself and all others similarly situated, the Plaintiff, vs. GENERAL ELECTRIC COMPANY, the Defendant, Case No. 2:18-cv-16288 (D.N.J., Nov. 19, 2018), seeks to remedy violations of the New Jersey Consumer Fraud Act and the Magnuson-Moss Warranty Act in connection with Defendant's design, manufacture, marketing, advertising, selling, warranting, servicing and repairing of its Microwaves, which contain serious design and/or manufacturing defects, causing bubbling, peeling, cracking, flaking, and/or chipping of the coating of the interior cavity of the Microwaves ("Paint Peeling Problem'), which begins to manifest shortly after first use and renders them unfit for further use. According to the complaint, GE has known (or reasonably should have known) for many years that these Microwaves were defective. GE has known of the Paint Peeling Problem since at least 2005. GE has undertaken a deliberate and willful pattern of conduct (including taking of active measures) aimed at hiding the defects in its Microwaves from consumers, including Plaintiff and the proposed Class. The GE Microwaves fail prematurely, which requires consumers to discontinue using the Microwaves and to replace them at their own expense. As a result of Defendant's unfair, deceptive, fraudulent, and misleading practices, the Plaintiff and Class Members have been deceived into purchasing the Microwaves which they would not otherwise have purchased; did not receive the benefit of their bargain; or purchased at a substantially higher price than they would have paid, had they known of Defendant's deception, the lawsuit says. General Electric Company is an American multinational conglomerate incorporated in New York and headquartered in Boston.[BN] Attorneys for Plaintiff and the Class: Jason T. Brown, Esq. Patrick S. Almonrode, Esq. BROWN, LLC 111 Town Square Place, Suite 400 Jersey City, NJ 07310 Telephone: (877) 561 0000 Facsimile: (855) 582 5297 E-mail: jtb@jtblawgroup.com GENERATIONS HEALTHCARE: Wins Bid to Decertify Class of HHAs ----------------------------------------------------------- The United States District Court for the Southern District of Ohio, Eastern Division, issued an Opinion and Order granting in part and denying in part Defendants' Motion to Decertify Conditional Class Certification and for Dismissal of Opt-In Plaintiffs in the case captioned DEANGELA SMITH, Plaintiff, v. GENERATIONS HEALTHCARE SERVICES, LLC, et al., Defendants. Case No. C2-16-CV-0807. (S.D. Ohio). Plaintiff DeAngela Smith worked as a home health aide for Generations Healthcare Services, LLC and Generations Too, LLC. She alleges that the Defendants did not pay her overtime in violation of the Department of Labor's 2015 rule that "made overtime mandatory for home health aides." The Defendants have moved to decertify the class. The Defendants argue that when the opt-in period closed, two plaintiffs, Jessica Climer and Charles Hollins, had opted in to the suit. Plaintiff Smith does not dispute these facts and does not oppose decertifying the class. Because the parties agree to this matter and three individuals would be an insufficient number to support a class under Federal Rule of Civil Procedure 23(A), Defendants' Motion is granted. Because the parties have agreed to decertification, this Court does not decide whether three individuals are enough to support an FLSA collective action under Section 216(b), which imposes requirements separate from class requirements under Federal Rule of Civil Procedure 23. The Defendants have also moved to dismiss Plaintiffs Jessica Climer and Charles Hollins from this suit. Plaintiff Smith acknowledges counsel's difficulty in making or maintaining contact with these opt-in Plaintiffs. Plaintiff Smith has not specifically responded to Defendants' Motion to Dismiss these Plaintiffs, only stating that Plaintiff Smith cannot oppose what Defendants seek because of Plaintiffs Climer and Hollins failing to cooperate and agreeing that a party's failure to appear at depositions obviously constitutes good grounds for some kind of sanction. Whether to dismiss a claim is informed by four factors: (1) whether the party's failure is due to willfulness, bad faith, or fault (2) whether the adversary was prejudiced by the dismissed party's conduct (3) whether the dismissed party was warned that failure to cooperate could lead to dismissal and (4) whether less drastic sanctions were imposed or considered before dismissal was ordered. The Defendants' reliance on Jourdan v. Jabe, Murray v. Target Dep't Stores, and Oakes v. J.F.Bernard, Inc., 2012 WL 3552651, at *1 (N.D. Ohio Aug. 1, 2012), is misplaced as those cases are distinguishable. In Jourdan, the party had requested two extensions and subsequently missed court deadlines of which he was well-aware and comprehended their significance. Here, neither Plaintiff Smith nor the Defendants provide evidence of whether Plaintiffs Climer and Hollins were well-aware of court deadlines. The parties negotiated between themselves for extensions of time in contacting Plaintiffs Climer and Hollins. Plaintiff Smith intimates that at least one Plaintiff failed to appear for a deposition. But it is not clear that Plaintiffs Climer and Hollins were aware that they were out of alignment with court deadlines or understood the importance of appearing at depositions. This Court has not previously issued any directive to the Plaintiffs that would constitute notice that their failure to participate in discovery would result in dismissal. As such, the Defendants' Motion to Dismiss is denied. Plaintiffs Climer and Hollins are put on notice, however, that they must comply with proper discovery requirements and that further failure to respond to proper discovery could result in sanctions, including dismissal. Accordingly, the Defendants' Motion is granted as to decertifying the class and DENIED as to dismissing Plaintiffs Climer and Hollins. A full-text copy of the District Court's November 19, 2018 Opinion and Order is available at https://tinyurl.com/yb57ncwy from Leagle.com. Richard Nicholas Coglianese, Mediator, pro se. DeAngela Smith, Plaintiff, represented by William Franklin Cash, III -- bcash@levinlaw.com -- Levin Papantonio Thomas Mitchell et al & Jacob R. Rusch, pro hac vice. Generations Healthcare Services LLC & Generations Too, LLC, Defendants, represented by Renny Joe Tyson, Renny J. Tyson Co., LPA. GETSWIFT: Judge Upholds Ruling in Class Action Over Disclosures --------------------------------------------------------------- Eleanor Dickinson, writing for ARN, reports that the Federal Court of Australia has upheld a judgement that allows only one of the three class actions bought against beleaguered Australian technology start-up GetSwift to proceed. The class actions, served by three separate law firms between February and April this year, concern allegedly deceptive disclosures by the publicly-listed firm about certain customer contract agreements. The first two were led by the law firms Squire Patton Boggs, on behalf of Dwayne Perera and other investors, alongside Corrs Chambers Westgarth Lawyers, on behalf of Shaun McTaggart. One month later, Justice Lee ruled that these -- known as the Perera Proceeding and the McTaggart Proceeding -- should be dropped, a ruling the two law firms subsequently appealed. Meanwhile, the third class action, dubbed the Webb Applicant, launched by law firm Phi Finney McDonald on behalf of Raffaele Webb, will be able to continue its litigation for an alleged undisclosed quantum of loss. The judgement added that it was unlikely the three cases would be consolidated due to an absence of agreement between the different applicants, funders and solicitors. In a notice filled with the Australian Securities Exchange, GetSwift said it will be seeking its costs incurred in respect of this carriage motion. "As previously advised, the company strongly disputes the allegations made, including any alleged loss, and is vigorously defending the proceedings," the statement added. Founded in 2015, GetSwift provides an internally-developed "last mile" software-as-a-service (SaaS) logistics solutions. In May, the Federal Court of Australia had agreed to let one of the three class actions being levelled against GetSwift proceed. [GN] GILEAD SCIENCES: Sued for Allegedly Withholding HIV Drug -------------------------------------------------------- Jacksonville Free Press reports that a new federal lawsuit against Gilead Sciences exposes how the pharmaceutical giant is putting profits over people, especially oppressed groups including black and LGBT communities, said renowned civil rights attorney Ben Crump. Mr. Crump, along with co-counsel at the Hilliard Martinez Gonzales, Hagens Berman Sobol Shapiro LLP, and Morgan & Morgan law firms, announced the lawsuit against Gilead Sciences, accusing the company of intentionally withholding a safer HIV drug from hundreds of thousands of patients in order to extend the profitability of the patent it held on an older, more risky drug. The tactic, Mr. Crump said, unjustly affected patients in the black, minority, and LGBT communities. In the lawsuit, Mr. Crump and co-counsel Bob Hilliard and Steve Berman, assert that Gilead withheld a second-generation HIV drug that was safer and produced fewer side effects and complications, in order to prevent competition with its harmful first-generation drug until its patent expires in 2021. Gilead's first-generation drug, known as TDF, can cause life-threatening side effects such as bone demineralization and kidney toxicity. For a person already living with HIV/AIDS, these side effects and toxicities turn a manageable condition into one that is potentially life-threatening. The HIV epidemic is characterized by extraordinary disparity regarding minority groups. Despite representing less than 13% of the U.S. population, in 2017black and African-American residents made up 44% of those who were newly diagnosed with HIV. Similarly, while Hispanics and Latino Americans made up 17% of the U.S. population in 2015, they made up 22% of people living with HIV. African-Americans have the highest rate of new HIV diagnoses compared to other races and ethnicities. More than seventy percent of all new HIV diagnoses in 2017 were in gay and bisexual men, as well as transgender women, of all races. "Gilead's chosen path of inaction is causing tremendous harm to persons with HIV, particularly black and LGBT minorities, by keeping drugs that would reduce deadly symptoms off the market and unavailable to those who need them the most," said Mr. Crump. "This lawsuit is a major step in the right direction toward racial equity in communities unevenly affected by HIV and exploited by pharmaceutical Goliaths like Gilead." Because Gilead willfully grips the market with its monopoly, it is able to charge exorbitant prices -- more than $3,700 a month -- at the expense of the populations who need it most. "This new lawsuit seeks justice for underrepresented communities, providing a voice to those who may not have ever received one otherwise," Mr. Crump said. "As long as Gilead continues to cravenly value profits over people, people living with HIV/AIDS will suffer from a lower quality of life. This must stop." For more information about the class action lawsuit, visit http://www.tdflawsuit.com/.[GN] GOLDSTONE FINANCIAL: Sued over Sales of Unregistered Securities --------------------------------------------------------------- EUGENE SIMMONS, ALEXANDRA EIVA, CAROL HARMS, ROSEMARY MAZIARZ IRA, and RANDALL M. THOMPSON, IRA, individually and on behalf of all others similarly situated, the Plaintiffs, vs. GOLDSTONE FINANCIAL GROUP, L.L.C., ANTHONY PELLEGRINO, and MICHAEL PELLEGRINO, the Defendants, Case No. 2018CH13978 (Ill. Cir. Ct., Cook Cty.), alleges that the Defendants actively promoted, marketed, and sold unlawful and unregistered securities offered by Global Capital LLC in breach of their fiduciary duties to their clients -- Plaintiffs and members of the proposed Class -- without first conducting adequate due diligence and through untrue statements and omissions of material fact as to the true risks and nature of an investment in Global. According to a lawsuit by the Securities and Exchange Commission, Global fraudulently raised more than $287 million from more than 3,400 investors in at least 25 states, including Plaintiffs and members of the proposed Class, through the offer and sale of those unregistered securities, purportedly to fund its business of offering short-term financing to small and medium sized businesses. Global used a network of brokers, registered and unregistered investment advisers, and other sales agents, including Defendants, to offer and sell those unregistered securities, and Global paid its sales agents millions of dollars in referral fees or commissions in return. Global, through the use of uniform marketing materials distributed to sales agents, and marketing materials prepared by the sales agents based on information Global provided them, promised investors a safe, low-risk investment paying an attractive return, in which Global would use investor money to make short-term cash advances called Merchant Cash Advances ("MCAs") to businesses that could not obtain more traditional financing such as bank loans. Global touted a rigorous underwriting process through which it purportedly approved only one in ten merchants who applied for a loan, and an electronic collection process that would allow investors to make a profit. In reality, according to the SEC Case, Global used a substantial amount of investor money for purposes other than MCAs, including paying operating expenses and purchasing already distressed, long-term credit card debt. In addition, the SEC alleged that Global misappropriated at least $35 million of investor money, at least $28 million of which was paid: (a) directly to Global's founder, Chairman, and CEO Carl Ruderman ("Ruderman"), the Ruderman Family Trust, and other entities he owned or controlled; (b) to companies owned or operated by Ruderman's relatives and acquaintances that had nothing to do with Global's cash advance business; and (c) to fund Ruderman's lavish expenses such as a luxury vacation to Greece and monthly payments for his Mercedes-Benz. According to the SEC Case, Global and its sales representatives made numerous material misrepresentations and omissions to investors, including: (a) that investments in Global were not "securities"; (b) that the company would only use investor money to fund MCAs; (c) falsely representing the amount of investor money the company would take for its own use; (d) sending monthly account statements to investors that falsely represented their portfolio balances, rates of return, and the amount of their cash Global had in the bank to fund merchant loans; and (e) falsely representing the company had an independent auditor that verified the numbers set forth in each investor's monthly statement. The SEC alleged that largely as a result of Global's misappropriation and improper use of investor funds, by no later than October 2017, Global experienced a shortage of investor funds approximating $23 million that should have been in the company's bank accounts and available for merchant loans. This shortfall continued and increased with time, so that by June 30, 2018, Global' s financial records showed approximately $50 million in missing investor funds. Less than a month later, I Global and a sister company, 1 West Capital LLC (which Global used to make merchant loans in California), filed for Chapter 11 bankruptcy protection, placing investors at risk of losing significant funds. An independent management team is now operating Global and 1 West Capital LLC. Defendants aggressively marketed and promoted Global securities to their customers, hundreds of whom purchased Global securities through Goldstone. Among other things, Goldstone hosted seminars in the Chicago area during which it adopted and repeated Global's false and misleading statements, and promoted Global as a safe investment suitable for retirees and IRA investors. Goldstone also distributed a brochure, which displayed Goldstone's name and address, and while it did not mention Global by name, it described an investment in Global repeating the false and misleading statements approved by Global, and also including a range of expected returns that Defendant Michael Pellegrino determined based on allegedly fake documents shown to him by a friend who also sold and promoted Global securities. Goldstone's materials also repeated Global's false statement that Global notes sold to investors were not securities. The Plaintiffs and the members of the proposed Class invested in Global securities directly through Goldstone, and have lost most or all of the value of their investments.[BN] Counsel for Plaintiffs: James B. Zouras, Esq. STEPHAN ZOURAS, LLP 100 N Riverside Plaza, Suite 2150 Chicago, IL 60606 Telephone: 312-233-1550 E-mail: jzouras@stephanzouras.com - and - Alan L. Rosca, Esq. Paul Scarlato, Esq. GOLDMAN SCARLATO & PENNY PC Eight Tower Bridge, 161 Washington St Conshohocken, PA 19428 Telephone: (484) 342-0700 E-mail: rosca@lawgsp.com scarlato@lawgsp.com - and - J. Barton Goplerud, Esq. Brian 0. Marty, Esq. SHINDLER ANDERSON GOPLERUD & WEESE PC 5015 Grand Ridge Dr, Ste 100 West Des Moines, IA 50265 Telephone: (515) 223-4567 Facsimile: (515) 223-8887 E-mail: goplerud@sagwlaw.com marty@sagwlaw.com GOOD GUY: Faces Parent Suit in New Jersey Superior Court -------------------------------------------------------- A class action lawsuit has been filef against I. Good Guy Vape. The lawsuit is captioned as MICHAEL PARENT, the Plaintiff, vs. I. GOOD GUY VAPE, D. SAMSUNG SDI, U. ABC BATTERY M, T. DEF BATTERY C, T. GHI BATTERY D, JKL BATTERY P, and JOHN DOES 1-2, the Defednants, Case No. L-002292-18 (N.J. Sup. Ct., Nov. 20, 2018). Attorneys for Plaintiff: REBENACK, ARONOW & MASCOLO, LLC 111 Livingston Ave. New Brunswick, NJ 08901-0000 Telephone: (732) 247-3600 GREENSKY INC: Faces Securities Class Action Over May 2018 IPO ------------------------------------------------------------- Shareholder rights law firm Robbins Arroyo LLP on Nov. 19 disclosed that purchasers of GreenSky, Inc. (NasdaqGS: GSKY) have filed a class action complaint against the company's officers and directors for alleged violations of the Securities Act of 1933 pursuant to the company's May 2018 initial public offering ("IPO"). GreenSky, a technology company, provides point-of-sale financing and payment solutions to merchants, consumers, and banks. View this information on the law firm's Shareholder Rights Blog: https://www.robbinsarroyo.com/greensky-inc/ GreenSky Accused of Depleting Company Assets Ahead of IPO According to the complaint, prior to the IPO company insiders caused Greensky to enter into a series of special cash distribution agreements, which resulted in the distribution of over $581 million. Company insiders also caused Greensky to enter into an agreement that provides for the distribution of 85% of the tax savings the company realizes as a result of the reorganization transactions that preceded the IPO, which was estimated at $928 million. GreenSky held its IPO on May 29, 2018, generating over $1 billion in gross proceeds, based on a misleading Registration Statement. The misinformation came to light when GreenSky began reporting dismal financial results less than three months later on August 7, 2018, citing a merchant business mix shift from solar panel merchants to merchants in the elective healthcare industry. Consequently, GreenSky was subject to an increased risk that its earnings growth would suffer and its adjusted EBITDA would decline in a high interest rate environment. GreenSky again reported disappointing results and lowered its guidance on November 6, 2018, revealing the company's adjusted EBITDA represented a 46% sequential decline and a 35% year-over-year decline as compared to the company's fourth quarter 2017 results. On this news, GreenSky's Class A shares fell to $9.28 per share on November 6, 2018, nearly 60% below the company's IPO price. GreenSky Shareholders Have Legal Options Concerned shareholders who would like more information about their rights and potential remedies can contact attorney Leonid Kandinov at (800) 350-6003, LKandinov@robbinsarroyo.com, or via the shareholder information form on the firm's website. Robbins Arroyo LLP -- http://www.robbinsarroyo.com-- is a shareholder rights law firm. The firm represents individual and institutional investors in shareholder derivative and securities class action lawsuits. [GN] HEALTH INSURANCE: District Court Junks Moser Discovery Requests --------------------------------------------------------------- In the case captioned KENNETH J. MOSER, individually, and on behalf of all others similarly situated, Plaintiff, v. HEALTH INSURANCE INNOVATIONS, INC., a Delaware corporation, et al., Defendants, AND RELATED COUNTERCLAIMS, Case No. 17cv1127-WQH(KSC) (S.D. Cal.), Magistrate Judge Karen S. Crawford denied plaintiff's motion for an order compelling HII to provide further responses to certain interrogatories and document requests. In the parties' Joint Motion for Determination of Discovery, defendant HII represents that it is "a third party administrator for health insurance and related products." HII maintains its principal place of business in Florida and is incorporated in Delaware. "HII is not a resident of California." Prior to the filing of the parties' Joint Motion, plaintiff deposed two witnesses designated by HII pursuant to Federal Rule of Civil Procedure 30(b)(6) on the topics of compliance and "sales for Donisi Jax, Inc. and Helping Hand Health Group, Inc." The Scheduling Order filed in this case states that: "All discovery motions must be filed within 45 days of the service of an objection, answer, or response which become the the subject of dispute. . . ." HII has represented that it responded to plaintiff's discovery requests on July 16, 2018. As HII contends, the 45-day deadline expired on or about August 30, 2018. The instant Joint Motion raising discovery disputes as to HII's responses was not filed until September 4, 2108, after the August 30, 2018 deadline. Accordingly, the Court finds that plaintiff's request for an order compelling defendants to provide further responses to his discovery requests must be denied as untimely. Even if the parties' Joint Motion was timely filed and the parties satisfied the meet and confer requirements, the Court would deny plaintiff's request for an order compelling HII to provide further responses to the disputed discovery requests. First, as to some of the discovery requests included in the Joint Motion, there is no dispute for the Court to resolve at this time. Second, with the exception of Interrogatory No. 5 and Request for Production No. 5, all of the discovery requests at issue in the Joint Motion are objectionable for at least three reasons: (1) they are overly broad on their face; (2) they fail to meet the reasonable particularity standard in Federal Rule of Civil Procedure 34(b)(1)(A); and/or (3) they do not appear to seek documents and information that meet the relevance standard of Federal Rule 26(b)(1). In this Court's view, HII responded to these requests to the extent possible under the circumstances. Third, with few exceptions, the Court was unable to determine whether the discovery being sought in response to the requests at issue are relevant to class-related issues. Most of the discovery requests at issue appear to be related to issues other than class certification. While it is true that discovery is not bifurcated under the Scheduling Order in this case, the focus of discovery at this stage of the litigation is class-related discovery, and plaintiff should have time to pursue the type of discovery at issue in the Joint Motion after class certification issues are resolved. However, plaintiff must do so with narrowly tailored requests. A copy of the Court's Order dated Nov. 20, 2018 is available at https://bit.ly/2G0Ri2I from Leagle.com. Kenneth J. Moser, individually and on Behalf of All Others Similarly Situated, Plaintiff, represented by Christopher Reichman -- chrisr@prato-reichman.com -- Prato & Reichman, APC, Jeffrey Braillard Cereghino -- jbc@rocklawcal.com -- Cereghino Law Group, Justin M. Prato -- jmprato@gmail.com -- Prato & Reichman, APC & Matt J. Malone , Rock Law LLP. Health Insurance Innovations, Inc., a Delaware Corporation, Defendant, represented by Anton N. Handal -- tony.handal@gmlaw.com -- Greenspoon Marder LLP, Dariel Jonathan Abrahamy -- dariel.abrahamy@gmlaw.com -- Greenspoon Marder LLP, pro hac vice & Garry W. O'Donnell -- -- garry.odonnell@gmlaw.com -- Greenspoon Marder, P.A., pro hac vice. National Congress of Employers, Inc., a Delaware Corporation, Defendant, represented by Barton H. Hegeler -- mail@hegeler-anderson.com -- Hegler & Anderson, Ethan T. Litney, Hegeler & Anderson, A.P.C. & Sarah M. Reddiconto, Hegeler & Anderson, A.P.C. Companion Life Insurance Company, a South Carolina Corporation, Defendant, represented by Chad R. Fuller -- chad.fuller@troutman.com -- Troutman Sanders LLP & Virginia B. Flynn -- virginia.flynn@troutman.com -- Troutman Sanders LLP, pro hac vice. Donisi Jax, Inc., a Florida Corporation, Defendant, represented by Jennifer L. Meeker -- jmeeker@nossaman.com -- Nossaman LLP, Maya Hamouie -- mhamouie@nossaman.com -- Nossaman LLP & Stephen P. Wiman -- swiman@nossaman.com -- Nossaman, LLP. HELIX ENERGY: Hernandez Conditional Class Certification Bid OK'd ---------------------------------------------------------------- Gerald Hernandez in the case captioned GERALD HERNANDEZ, individually and on behalf of all others similarly situated, Plaintiff, v. HELIX ENERGY SOLUTIONS GROUP, INC., Defendant, Civil Action No. H-18-1588 (S.D. Tex.) sued Helix Energy Solutions Group, Inc., alleging a failure to pay overtime wages, in violation of the Fair Labor Standards Act. Hernandez moved for conditional certification of a class he defines as "[a]ll current and former electricians who worked for Helix during the last three years and who were paid on a day-rate basis." Hernandez also moved for issuance of notice and expedited discovery of the contact information for the electricians who worked for Helix during the last three years. Based on the pleadings, the motion, and the applicable legal standards, Chief District Judge Lee H. Rosenthal granted the motion for conditional class certification and granted the motion for expedited discovery in part. A pretrial conference will be held on April 23 at 8:30 a.m. in Courtroom 11-B. Courts recognize two methods for determining whether to certify a collective action on a conditional basis or authorize notice to similarly situated employees: the spurious class action Shushan approach, or the two-step Lusardi approach. Most courts use the Lusardi approach. The first step of the Lusardi analysis, the notice stage, requires a minimal showing by the plaintiff that (1) there is a reasonable basis for crediting the assertions that aggrieved individuals exist, (2) those aggrieved individuals are similarly situated to the plaintiff in relevant respects given the claims and defenses asserted, and (3) those individuals want to opt in to the lawsuit. Hernandez asserted that he has alleged and presented affidavits describing Helix policies and practices that denied the proposed class members overtime compensation that they were entitled to under the FLSA. These policies and practices included refusing to pay overtime for hours worked in excess of 40 hours in a work week and failing to maintain accurate time records. Hernandez has submitted affidavits and consent forms of two other Helix HV electricians, George Sowell and Christopher Smith, who allege that they were not paid overtime and state that they wish to join the class. A third Helix HV electrician, Larry Swell, submitted a consent to become a party plaintiff, but he did not submit an affidavit. Helix argued that the "three cursory declarations are . . . insufficient," but the case law is clear that the evidentiary burden at this state is lenient. The first element is met. Hernandez also submitted declarations from himself, George Sowell, and Christopher Smith that describe in identical terms the Helix HV electrician positions they held. They duties were "setting up and disconnecting electrical systems, repair and maintenance of the electrical systems on the job site." Each declaration explains that the job involves "manual labor." Each declaration also explains that Helix HV electricians were paid on a day-rate basis and did not receive overtime pay for hours worked over 40 hours per week. Hernandez included his pay stubs as an exhibit showing that his wage was based on a daily rate regardless of the number of hours worked in a week. The evidence that other HV electricians with similar job responsibilities to those of Hernandez were subject to the same pay policy is sufficient to meet the threshold for conditional class certification. The second element is met. The third Lusardi question is whether evidence shows that other aggrieved employees would want to join the class. Hernandez's declaration states that he "believe[s] that there would be others that would want to join this lawsuit if they were made aware of it and given an opportunity to join." The affidavits from Sowell and Smith, both Helix HV electricians, support that assertion. George Sowell, Christopher Smith, and Larry Sowell have already filed their consents to join the class action. The third element is met. Hernandez's motion for expedited discovery is also granted, but only as to the names, current or last-known mailing addresses, telephone numbers, and dates of employment of HV electricians working for Helix in the last three years. The requests for social-security numbers, email addresses, locations of employment, and nature of employment are overbroad and unsupported by the current record. The court grants the motion for conditional certification of a class of "[a]ll current and former electricians who worked for Helix during the last three years and who were paid on a day-rate basis." By Dec. 21, 2018, Helix must produce the names, current or last-known mailing addresses, telephone numbers, and dates of employment for these individuals. The court approves the form of notice. A copy of the Court's Memorandum and Order dated Nov. 20, 2018 is available at https://bit.ly/2PiUo1k from Leagle.com. Gerald Hernandez, Plaintiff, represented by Bridget Dale Davidson, Moore and Associates, Curt Christopher Hesse, Moore & Associates & Melissa Moore, Moore & Associates. Helix Energy Solutions Group, Inc., Defendant, represented by Michael Carter Crow -- carter.crow@nortonrosefulbright.com -- Norton Rose Fulbright US LLP & Kimberly Frances Cheeseman -- kimberly.cheeseman@nortonrosefulbright.com -- Norton Rose Fulbright US LLP. HOME CARE: Wilkins Seeks Overtime Compensation ---------------------------------------------- BARBARA WILKINS, and all others similarly situated under 29 U.S.C. 216(b), Plaintiff(s), v. HOME CARE GIVER SERVICES, INC. d/b/a HOME CARE ONE, a Florida corporation, and ANTHONY J. PERSICO, individually, the Defendants, Case 9:18-cv-81514-BB (S.D. Fla., Nov. 2, 2018), alleges that Defendants have unlawfully deprived Plaintiff, and all other employees similarly situated, of federal overtime compensation during the course of their employment, pursuant to the Fair Labor Standards Act. According to the complaint, on or about August 1, 2018, the Plaintiff began working for Defendant, and was assigned to work an average of 50 hours per week. Plaintiff's agreed regular hourly rate during this initial time period was $10.00 an hour. During the first four weeks of her employment, Plaintiff worked 50 hours each week. During this initial employment period worked by Plaintiff, HOME CARE ONE paid Plaintiff a straight $10.00 an hour regardless of the number of hours Plaintiff worked. The Defendant failed to pay plaintiff one-and-one-half times her regular hourly rate for any hours worked in excess of 40 in any given workweek. Accordingly, during this initial employment period, Plaintiff is owed half-time in the amount of $5.00 per hour for 10 hours per week for four weeks. In total, during the initial employment period of the first four weeks, Plaintiff is entitled to recover $50.00 per week for a total of $200.00 in unliquidated damages. However, Defendants' actions were intentional and/or willful and Plaintiff is therefore entitled to an additional amount of liquidated (double) damages for wages in the amount of $200.00, the lawsuit says.[BN] Counsel for Barbara Wilkins: Jordan Richards, Esq. USA EMPLOYMENT LAWYERS JORDAN RICHARDS, PLLC 805 East Broward Blvd. Suite 301 Fort Lauderdale, FL 33301 Telephone: (954) 871-0050 E-mail: jordan@jordanrichardspllc.com melissa@jordanrichadrspllc.com livia@jordanrichardspllc.com jake@jordanrichardspllc.com HORTONWORKS INC: Plumley Balks at Merger Deal with Cloudera ----------------------------------------------------------- The case, PATRICK PLUMLEY, Individually and On Behalf of All Others Similarly Situated, the Plaintiff, vs. HORTONWORKS, INC., ROB BEARDEN, PAUL CORMIER, PETER FENTON, MARTIN FINK, KEVIN KLAUSMEYER, JAY ROSSITER, MIKE VOLPI, CLOUDERA, INC., and SURF ACQUISITION CORPORATION, the Defendants, Case No. 1:18-cv-01845-UNA (D. Del., Nov. 20, 2018), stems from a proposed transaction announced on October 3, 2018, pursuant to which Hortonworks, Inc. will be acquired by Cloudera, Inc. and Surf Acquisition Corporation. On October 3, 2018, Hortonworks' Board of Directors caused the Company to enter into an agreement and plan of merger with Cloudera. Pursuant to the terms of the Merger Agreement, Hortonworks' stockholders will receive 1.305 shares of Parent common stock for each share of Hortonworks they own. On November 5, 2018, Defendants filed a Form S-4 Registration Statement with the United States Securities and Exchange Commission in connection with the Proposed Transaction. The Registration Statement omits material information with respect to the Proposed Transaction, which renders the Registration Statement false and misleading, the lawsuit says. Hortonworks is a data software company based in Santa Clara, California that develops, supports, and provides expertise on a set of open-source software designed to manage data and processing for things such as IOT, single view of X, and advanced analytics and machine learning.[BN] Attorneys for Plaintiff Gina M. Serra, Esq. Brian D. Long, Esq. Gina M. Serra, Esq. RIGRODSKY & LONG, P.A. 300 Delaware Avenue, Suite 1220 Wilmington, DE 19801 Telephone: (302) 295-5310 Facsimile: (302) 654-7530 E-mail: bdl@rl-legal.com gms@rl-legal.com - and - Richard A. Maniskas, Esq. RM LAW, P.C. 1055 Westlakes Drive, Suite 300 Berwyn, PA 19312 Telephone: (484) 324-6800 Facsimile: (484) 631-1305 E-mail: rm@maniskas.com HUGOTON ROYALTY: Final Settlement Hearing Set for March 2019 ------------------------------------------------------------ Hugoton Royalty Trust 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 claims related to the Chieftain settlement are tentatively scheduled for a final hearing beginning in March 2019. In December 2010, a royalty class action lawsuit was filed against XTO Energy styled Chieftain Royalty Company v. XTO Energy Inc. in Coal County District Court, Oklahoma. XTO Energy removed the case to federal court in the Eastern District of Oklahoma. The plaintiffs allege that XTO Energy wrongfully deducted fees from royalty payments on Oklahoma wells, failed to make diligent efforts to secure the best terms available for the sale of gas and its constituents, and demanded an accounting to determine whether they have been fully and fairly paid gas royalty interests. The case was certified as a class action in April 2012, then decertified in July 2013. XTO Energy advised the Trustee that in December 2017, it reached a tentative settlement with the plaintiffs for $80 million and an additional $750 thousand for costs to administer the settlement following final approval. In March 2018, XTO Energy advised the Trustee that it believed the portion of the settlement that relates to the Trust could be as much as $20 million, but the settlement allocable to the Trust could not be finally determined until after the judge approved the plaintiffs’ final plan of allocation. On July 27, 2018, plaintiffs submitted their final plan of allocation which was approved by the court on the same date. Based on the final plan of allocation XTO Energy has advised the Trustee that it believes approximately $24.3 million in additional production costs should be allocated to the Trust. On May 2, 2018, the Trustee submitted a demand for arbitration styled Simmons Bank (successor to Southwest Bank and Bank of America, N.A.) vs. XTO Energy Inc. (the "Arbitration") through the American Arbitration Association seeking a declaratory judgment that the Chieftain settlement is not a production cost and that XTO Energy is prohibited from charging the settlement as a production cost under the conveyance or otherwise reducing the Trust's payments now or in the future as a result of the Chieftain litigation. In the Arbitration, the Trustee also made claims for disputed amounts on the computation of the Trust's net proceeds for 2014 through 2016 in excess of $5 million. XTO Energy filed its answer denying the Trustee's claims. The Arbitration panel has been selected. Claims related to the Chieftain settlement are tentatively scheduled for a final hearing beginning in March 2019. The remaining claims related to the computation of the Trust's net proceeds were bifurcated and will be heard at a later date, which is still to be determined. Hugoton Royalty said, "If the approximately $24.3 million allocated portion of the Chieftain settlement results in an adjustment to the Trust's share of net proceeds, it would result in additional excess costs under the Oklahoma conveyance that would likely result in no distributions under the Oklahoma conveyance for several years while these additional excess costs are recovered." Certain of the underlying properties are involved in various other lawsuits and governmental proceedings arising in the ordinary course of business. XTO Energy has advised the Trustee that it does not believe that the ultimate resolution of these claims will have a material effect on the financial position or liquidity of the Trust, but may have an effect on annual distributable income. Hugoton Royalty Trust is an express trust created under the laws of Texas pursuant to the Hugoton Royalty Trust Indenture entered into on December 1, 1998 between XTO Energy Inc. (formerly known as Cross Timbers Oil Company), as grantor, and NationsBank, N.A., as trustee. Southwest Bank is now the trustee of the Trust. ILLINOIS: Buck Files Prisoner Civil Rights Suit ----------------------------------------------- A class action lawsuit has been filed against Baldwin, et al. The case is styled as William Buck, John Doe and others similarly situated, Plaintiffs v. John Baldwin Director, IDOC, Debbie Knauer Admin. Rev. Board Member, Sgt. Rigdon Menard CC, C/O Puxdom Menard CC, C/O Edwards Menard CC, C/O Mallory Menrad CC, C/O Halle Menard CC, C/O Weaver Menard CC, Hunzicker FRT, Federal Response Transportation, Lt Long Pontiac CC, Sabrina Fox Nurse, Pontiac CC Cheryl Hanson Nurse Practitioner, Pontiac CC, Emily Ruskins Asst. Warden, Pontiac CC, Lt. Samuels Menard CC, I.A. Gardiner Internal Affairs, Menard CC, A. Phelps Internal Affairs, Menard CC, Unknown Party Miss R – Mental Health Professional, Menard CC, Ms. Pappas Mental Health Professional, Menard CC, Sharon Simpson Grievance Officer, Pontiac CC, Michael Melvin Warden, Pontiac CC, Defendants, Case No. 3:18-cv-02125-SMY (S.D. Ill., Nov. 28, 2018). The nature of suit is stated as Prison Condition for Prisoner Civil Rights. John Baldwin was named director of the Illinois Department of Corrections August 14, 2015, by Governor Bruce Rauner. Director Baldwin is responsible for overseeing the management and operations of more than 35 Illinois state prisons, work camps, boot camps and transition centers as well as the supervision of parolees.[BN] The Plaintiff appears pro se: William Buck, Esq. 700 West Lincoln Street PO Box 99 Pontiac, IL 61764 R21689 PONTIAC CORRECTIONAL CENTER PRO SE INDIANA UNIVERSITY: TRO Bid in Thomas Partly OK'd ------------------------------------------------- In the case, JADEN THOMAS, RYAN BRAVERMAN, KATIE DEDELOW, JAKE RAMSEY, ISABELLA BLACKFORD, MICHAEL DUKE, LINDSAY FREEMAN individuals, each on behalf of himself/herself and all others similarly situated, Plaintiffs, v. THE TRUSTEES OF INDIANA UNIVERSITY, Defendant, Case No. 1:18-cv-03305-TWP-DML (S.D. Ind.), Judge Tanya Walton Pratt of the U.S. District Court for the Southern District of Indiana, Indianapolis Division, granted in part and denied in part the Plaintiffs' Application for Temporary Restraining Order and Preliminary Injunction. The Plaintiffs are freshman students at Indiana University ("IU") in Bloomington, Indiana. They reside in either the McNutt dormitory or the Foster dormitory. After discovering mold infestation in their dorm rooms at IU, the Plaintiffs initiated the lawsuit on Oct. 17, 2018 on behalf of themselves and other similarly situated IU students against the Trustees of Indiana University. They assert claims for breach of contract, breach of implied warranty of habitability, and declaratory judgment on behalf of themselves and other similarly situated IU students. More than 1,200 rooms have been cleaned or remediated in the McNutt and Foster dormitories so that they can be reoccupied. This work was completed by Nov. 2, 2018. Approximately 39 rooms are still receiving enhanced remediation, and there are 24 rooms that have yet to be inspected. Additionally, there are about 391 rooms in the Teter dormitory that the Defendant intends to inspect if needed and to take appropriate action. The Defendant established a website (http://buildings.iu.edu)to provide information to students, students' family members, and the public about the mold problem and remediation efforts. The website addresses many frequently asked questions and also allows students to obtain updated information about the status of their particular dorm room. It also provides access to the detailed laboratory data for individuals interested in seeing that level of information. The website is updated daily and also provides information about a mold remediation call center that provides additional resources. Nine days after the Plaintiffs initiated the lawsuit, on Oct. 26, 2018, the Defendant filed a notice of removal, thereby removing the lawsuit from Monroe Circuit Court to the Court. The Class Action Fairness Act of 2005 erved as the basis of Defendant's removal. Soon thereafter, the Plaintiffs filed their Application for Temporary Restraining Order and Preliminary Injunction on Nov. 9, 2018. The Plaintiffs seek a temporary restraining order directing the Defendant to (i) refrain from making misleading, inaccurate, coercive or confusing statements to members of the putative class regarding the dangers posed by Mold or the effectiveness of remedies offered or implemented by IU; and (ii) refrain from spoliation of evidence and take necessary steps to video or photograph, and also retain physical viable samples of, the mold found in IU's dorms prior to its removal during remediation. Judge Pratt, having considered the parties' briefs and having heard oral arguments on Nov. 19, 2018, granted in part and denied in part the Plaintiffs' Application. She denied the Application for Temporary Restraining Order as to the Defendant's communications with its students and the public. She granted the Application as to the spoliation of evidence. The Plaintiffs' request for a preliminary injunction remains under advisement, pending a hearing, which will be held at a later date. The Plaintiffs' counsel has requested that the Plaintiffs be relieved of any bond. Until the Court can consider the appropriateness of a bond more fully, the Judge granted that request. The Temporary Restraining Order applies to Defendant Trustees of Indiana University and its officers, agents, servants, employees, attorneys, and other persons who are in active concert and participation with any of these individuals or entities. It will remain in effect for 14 days after the date of issuance or until a ruling on the Plaintiffs' motion for preliminary injunction, whichever is earlier, or until any earlier additional order of the Court, or until a later date if the Defendant consents to a longer extension. The parties are ordered to promptly contact the Magistrate Judge to schedule a conference to finalize an expedited discovery plan and briefing schedule and pursue resolution of any other remaining issues. A hearing on the Plaintiffs' request for a preliminary injunction will be set following the parties' conference with the Magistrate Judge. A full-text copy of the Court's Nov. 21, 2018 Order is available at https://is.gd/QqMINl from Leagle.com. JADEN THOMAS, RYAN BRAVERMAN, KATIE DEDELOW, JAKE RAMSEY, ISABELLA BLACKFORD, MICHAEL DUKE & LINDSAY FREEMAN, individuals, each on behalf of himself/herself and all others similarly situated, Plaintiffs, represented by Jacob R. Cox, COX LAW OFFICE, Jonathon Noyes -- jnoyes@wkw.com -- WILSON KEHOE & WININGHAM & William E. Winingham -- winingham@wkw.com -- WILSON KEHOE & WININGHAM. THE TRUSTEES OF INDIANA UNIVERSITY, Defendant, represented by Ann O. McCready -- amccready@taftlaw.com -- TAFT STETTINIUS & HOLLISTER LLP, Frank J. Deveau -- fdeveau@taftlaw.com -- TAFT STETTINIUS & HOLLISTER LLP, Scott R. Alexander -- salexander@taftlaw.com -- TAFT STETTINIUS & HOLLISTER LLP & Thomas A. Barnard -- tbarnard@taftlaw.com -- TAFT STETTINIUS & HOLLISTER LLP. INFORMED ELECTORATE: Robinson Sues over Unwanted Telephone Calls ---------------------------------------------------------------- FREDERICK ROBINSON, individually and on behalf of all others similarly situated, the Plaintiff, vs. INFORMED ELECTORATE and DOES 1 through 10, inclusive, and each of them, Case No. 2:18-cv-09705 (C.D. Cal., Nov. 16, 2018), seeks damages and any other available legal or equitable remedies resulting from the illegal actions of Defendant, in negligently, knowingly, and/or willfully contacting Plaintiff on Plaintiff's cellular telephone in violation of the Telephone Consumer Protection Act, thereby invading Plaintiff's privacy and causing him to incur unnecessary and unwanted expenses. According to the complaint, beginning in or around July of 2018, the Defendant contacted Plaintiff on Plaintiff's home telephone number ending in -6241, in an attempt to solicit Plaintiff to purchase Defendant's services. The Defendant used an "automatic telephone dialing system" as defined by 47 U.S.C. section 227(a)(1) to place its call to Plaintiff seeking to solicit its services. The Defendant contacted or attempted to contact Plaintiff from telephone numbers (813) 295-2840, (646) 813-2670, and (617) 581-0895, confirmed to belong to Defendant. The Defendant's calls constituted calls that were not for emergency purposes as defined by 47 U.S.C. section 227(b)(1)(A). Defendant's calls were placed to telephone number assigned to a cellular telephone service for which Plaintiff incurs a charge for incoming calls pursuant to 47 U.S.C. section 227(b)(1). The Defendant did not possess Plaintiff's "prior express consent" to receive calls using an automatic telephone dialing system or an artificial or prerecorded voice on his telephone pursuant to 47 U.S.C. section 2 227(b)(1)(A). The Plaintiff received multiple calls from Defendant beginning in or around July 2018, the lawsuit says.[BN] Attorneys for Plaintiff: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. Meghan E. George, Esq. Tom E. Wheeler, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St., Suite 780 Woodland Hills, CA 91367 Telephone: 323 306-4234 Facsimile: 866 633-0228 E-mail: tfriedman@ toddflaw.com abacon@ toddflaw.com mgeorge@toddflaw.com twheeler@toddflaw.com INTERGLOBO NORTH: Genova Burns Attorney Discusses Court Ruling -------------------------------------------------------------- Patrick McGovern, Esq. -- pmcgovern@genovaburns.com -- of Genova Burns LLC, in an article for JDSupra, reports that on October 29, 2018 a N.J. Appellate Division panel reversed a dismissal of class action overtime pay claims brought against a freight-forwarding company that convinced the lower court that the company's drivers and deliverers lacked standing to sue because they signed independent contractor agreements to provide services through their separate corporations. In an unpublished opinion, the Appellate Division found that the court below prematurely ended its inquiry into whether the plaintiff was an employee or an independent contractor, and directed the lower court to look beyond the terms of the contract to consider the totality of the circumstances surrounding the relationship between the drivers and the company. Veras v. Interglobo North America, Inc., et al., Docket No. A-3313-16T1 (Oct. 29, 2018). In 2014, Raymond Veras, through his corporation J&K Trucking Solution, signed a "Contractor Lease Agreement" (CLA) with Interglobo and then provided driver services to Interglobo. He claimed that he routinely worked in excess of 40 hours each week but received no overtime pay, and that Interglobo took illegal deductions from his pay. In 2015 he filed a class action under the N.J. Wage and Hour Law (WHL) and the Wage Payment Law (WPL) against two Interglobo entities. The CLA clearly stated that J&K was an independent delivery operator. However, Veras's complaint alleged that, despite the CLA which his corporation signed, he was an employee protected by the WHL and WPL since he took direction from Interglobo and its employees, wore its uniforms, dealt with its customers' invoices, and was subject to discipline and termination by Interglobo. The lower court dismissed Veras's complaint on the grounds that he lacked standing to bring the action. The Appellate Division reversed and held that the A-B-C test articulated by the N.J. Supreme Court's 2015 decision in Hargrove v. Sleepy's applied to determine whether Veras' relationship with Interglobo was that of an employee as opposed to an independent contractor. The Appellate Division held that "a court is not limited to the terms of the contract between the parties" and the court should review "the substance, not the form of the relationship . . . to determine if [the relationship] is exempt from the WPL and WHL." The A-B-C test presumes that a service provider is an employee, unless the service recipient can prove A, B and C: (A) the service provider is free from direction or control by the service recipient, (B) the services rendered to the recipient are outside the recipient's usual course of business, or are performed outside all places of the recipient's business, and (C) the service provider is customarily engaged in an independently established trade, occupation, profession, or business. Interglobo argued that the A-B-C test did not apply because Veras's employer was his own corporation, J&K Trucking Solution, and under the economic realities test, Interglobo was not the employer. The court rejected this argument, too, and held that the economic realities test does not apply to WHL and WPL claims. The Appellate Division held that the A-B-C test applied to Veras regardless of whether the CLA was signed by Veras as an individual or by his corporation, and stated that the A-B-C test presumes that Veras was an employee, not an independent contractor. The Appellate Division reasoned that even if the economic realities test did apply, dismissal of the complaint at the motion to dismiss stage was not warranted solely because of the CLA, because this test is fact-intensive, and courts rarely decide a worker's status on a summary judgment motion, let alone on a motion to dismiss before discovery is taken. Ultimately, this Appellate Division panel decided that the mere fact that the service provider's corporation, and not the driver himself, signed an independent contractor agreement with the service recipient was not dispositive of the issue of employee versus independent contractor status at the motion to dismiss stage, and the underlying facts must be examined to determine whether, despite the contract, the service provider is an employee and has standing to sue the service recipient under the WHL or the WPL. As businesses attempt to create more separateness between themselves and their service providers, this court cautions that employee status will not depend on the existence of a contract alone, but will be analyzed under the rigorous A-B-C test. [GN] INVESTMENTS LIMITED: Sued over Mishandling of Security Deposits --------------------------------------------------------------- THOMAS PELKEY and CHLOE WALKER on behalf of themselves and all others similarly situated, vs. INVESTMENTS LIMITED MANAGEMENT, INC., and JHB MASSACHUSETTS PROPERTIES, LLC, the Defendants, Case No. 18-3165 (Mass. Super. Ct., Nov. 5. 2018), seeks to stop Defendants' unlawful practices of mishandling and failing to provide the required written receipts, properly maintain, and/or promptly return residential tenants' security deposits in violation of G.L. c. 186, section l5B (the "Security Deposit Law"). Plaintiffs contend that Defendants failed to pay interest on last month's rent deposits and security deposits in violation of the Security Deposit Law; and included unlawful lease terms, including unlawful late fees. According to the complaint, Thomas Pelkey and Chloe Walker rented unit No. 3 at 364 Riverway in Boston, Massachusetts from Defendants since June 2016, and continue to reside in the unit. Investments Limited Management, Inc. is a Florida corporation and has its principal place of business in Boca Raton, Florida, and is the landlord and manager of the 2Riverway property. The Plaintiffs paid a $700 security deposit at the inception of their tenancy in 2016. The Plaintiffs never received any receipt from Defendants stating where their security deposit was being held. The Plaintiffs, though counsel, sent a letter dated September 24, 2018, to Defendants demanding the return of their security deposit. The Defendants, in a letter dated October 17, 2018, responded to Plaintiffs stating that the security deposit would be returned after Plaintiffs vacate the property and only if the unit was left in condition required by the lease. To date Defendants have not returned Plaintiffs' security deposit, the lawsuit says. According to "The Security Deposit Law", Massachusetts law allows landlords to collect only 4 types of payment at the commencement of the rental term -- first month's rent, last month's rent, lock installation and key costs, and "a security deposit provided that such security deposit is deposited as required by [the law], and the tenant is given the statement of condition as required by [the law]." G.L. c. 186, section l5B (1) (b). Security deposits continue to be the property of the tenant and cannot be commingled with the landlord's other assets. A landlord that accepts security deposits must provide tenants a written statement concerning the condition of the premises upon commencement of the lease term, and must retain records that contain a detailed description of any damage done by a tenant during the lease term, including receipts for 3any work performed. These records must be kept for two years after termination of the tenancy. See G.L. c. 186 section l 5B (2) (d).[BN] Attorneys for Plaintiffs: Josh Gardner, Esq. GARDNER & ROSENBERG, P.C. One State St., Fourth Floor Boston, MA 02109 Telephone: (617) 390-7570 E-mail: josh@gardnerrosenberg.com - and - Edward Rice, Esq. 45 Pierce Street Malden MA 02148 Telephone: (617) 475-0909 E-mail: ed@edricelaw.com - and - Christopher Saccardi, Esq. 58 Day St., #441538 Somerville, MA 02144 Telephone: (617) 500-3198 chris@attomeysaccardi.com INVITATION HOMES: Faces Class Action in California Over Late Fees ----------------------------------------------------------------- Linda Liberatore, writing for Think Realty, reports that recently, industrial single-family home companies are getting some very bad press and facing some pretty nasty class-action accusations. For example, Invitation Homes, a Blackstone vehicle that began buying distressed single-family properties and rehabbing them for rent in 2012, faces a potential class-action suit in California that claims the company's late fees violate the law in each of the dozen states in which the company does business. The suit hinges on alleged "fee-stacking" of $95 late fees that compound over time even, plaintiffs say, if the late rent is due to malfunctioning company payment portals. The same company has been swamped with negative publicity as tenants come forward to local press to complain of terrible property neglect and under- and unperformed maintenance. As you read this, you might be tempted to think simply, "At least it's them, not me," but don't forget this topic so quickly. The same issues that institutional landlords face are issues for individual landlords as well. No matter the size of your portfolio, establishing certain key, consistent practices will help protect you from allegations and lawsuits like the ones currently troubling corporate landlords. 1. Establish the Process for Fee Assessments at Lease-Signing One "black mark" many media outlets are reporting against Invitation Homes is that residents say they are unfairly charged for late rent payments. To be clear: At present, there is no public evidence to this effect, so this is not a statement about whether or not the accusations are true. What you can learn from these accusations, however, could save you a great deal of time and money if one of your residents ever accuses you of the same. How to protect yourself: Establish a formal fee-assessment process and explain it in detail to tenants via a recorded video that they must affirm they viewed either via their signature on the lease or via a cloud-based confirmation that goes in their electronic record. This not only keeps your process entirely consistent across every tenant's experience, but it creates a clear, indisputable record that your tenants understand when, how, and under what circumstances they will be charged late fees. 2. Incorporate Discussion of the Maintenance Process into Your Leasing Procedures One of the biggest issues Invitation Homes is facing right now is an onslaught of allegations that it simply does not respond to maintenance requests in an effective or timely manner. To make matters worse, residents' accounts of issues and the company's written documentation of the same issues simply do not match up. As more residents go to the press, the corporate landlord's public perception worsens. How to protect yourself: Establish the process for reporting maintenance requests at the earliest possible point in your relationship with a resident. You may list individual processes in the lease or distribute a handbook to the tenant when they sign. Either way, address the following: How to report a maintenance request, including different protocols for emergency and non-emergency issues Tenant responsibilities once an issue is reported, including permitting a maintenance team to access the property to address the problem A detailed list of common maintenance issues and associated protocols Information on municipal issues like pet clean-up or yard clean-up fines Instructions for proper maintenance and care for appliances and fixtures, including how to change filters and lightbulbs, if tenants are expected to perform these basic duties Specific delineation of appliance responsibilities You must note if appliances will be repaired at tenant's or owner's expense. A Word of Warning Making repairs as a favor or "on the fly" may well come back to haunt you. Asking tenants to follow your processes for making maintenance requests protects you and them. Making exceptions can expose you to fair housing complaints and increases your risk of facing litigation. Our Preferred Maintenance Request Process at Secure Pay One: Fill out an online request through the tenant portal. All progress on the request is tracked online and in real time, and every tenant uses an identical process to file requests and have them addressed. 4. Do Not Fail in Your Documentation Document everything. No exceptions. For example, if your pest control company or your service team goes out to a property and identifies housekeeping issues contributing to a maintenance problem, you cannot afford to be shy about documenting tenant contributions to the issue. Once the issue is documented, you have a responsibility to share that information with your tenant for your own protection and theirs. How to protect yourself: Develop a system to document and communicate these issues in writing. Housekeeping issues are a sensitive topic, and most team members will shy away from anything that feels like criticizing a tenant. You must have clear documentation of the specific issues that a resident must address and an equally clear, consistent procedure for bringing those issues and action items to the resident's attention. Our Preferred Documentation Process: Use a resident portal and/or texting system where images may be uploaded and interactions documented. Tenant-provided images will also help you gauge the severity of maintenance requests and protect you in the event that residents wish to litigate, alleging ignored maintenance. Setting communication expectations about how and when a visit will be scheduled also keeps residents and maintenance teams in the loop so that if something does slip, it is addressed quickly. For example, if a resident describes an urgent leak in the home but documents that the leak does not fill a standard water glass in a 24-hour period, you will be able to prioritize maintenance on that leak based on that information. Of course, it is imperative to contain the leak as quickly as possible in order to prevent damage, but this information and documentation will enable you to share a timeline with your resident that will set expectations for when and how maintenance will address the problem. Big Landlords' Troubles Will be Yours as Well This article is not intended to pass judgment on Invitation Homes or any other corporate landlord, nor is it intended to be a negative series of observations about tenants. This content should simply serve all landlords as educational material that can help you standardize your processes regardless of your portfolio size. Whether you own one property, 100 properties, or more than 1,000, when big headlines hit the press about "bad blood" between tenants and landlords, a certain population of tenants will start wondering if they, too, have been mistreated by you, and a certain population of litigious attorneys will be all too eager to help them start the process of suing you if it appears that there is any chance of a big payout at the end. Protect yourself from these complaints and your tenants from predatory litigators by making all processes from rent collection to maintenance requests clear, consistent, and nonnegotiable. Using the many methods available to communicate with your residents from tenant portals to text messaging keeping open professional and transparent dialogue may help you avoid the court room. [GN] IPIC ENTERTAINMENT: Still Defends Ryan-Nielson Class Suit --------------------------------------------------------- iPic Entertainment 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 the company continues to defend itself from a class action suit entitled, Mary Ryan and Johanna Nielson v. iPic-Gold Class Entertainment, LLC. The Company currently is a defendant in a class action lawsuit captioned Mary Ryan and Johanna Nielson v. iPic-Gold Class Entertainment, LLC, Case No. BC 688633, which was filed in Superior Court of the State of California, County of Los Angeles, on December 29, 2017. This lawsuit asserts failure to pay minimum wage, pay overtime wages, provide meal breaks and rest periods, and provide accurate itemized wage statements with respect to certain workers. The Company reserves for costs related to contingencies when a loss is probable and the amount is reasonably estimable. iPic Entertainment said, "As of this date, the Company has not made a provision for the claim described above, due to the fact that it is currently not probable nor reasonably estimable. However, the outcome of the legal proceeding is uncertain, and depending upon what the facts reveal once the Company completes its investigation of the claim, it may choose to contest the suit or settle this claim. In either scenario, the Company could be subject to paying an amount that could have a material adverse impact on its results of operations in any given future reporting period." No further updates were provided in the Company's SEC report. iPic Entertainment Inc. operates restaurants and theaters in the United States. The company operates casual restaurants, farm-to-glass full-service bars, and theater auditoriums with in-theater dining. It operates restaurants under the City Perch Kitchen + Bar, Tanzy, The Tuck Room, The Tuck Room Tavern, and iPic Express brands. The company was founded in 2010 and is headquartered in Boca Raton, Florida. J.S.P. LIFE: Tackie Seeks Unpaid Overtime Wages ----------------------------------------------- GWENDOLYN TACKIE, individually and on behalf of all others similarly situated, the Plaintiff, vs. J.S.P. LIFE AGENCY, INC., the Defendant, Case 1:18-cv-10786 (S.D.N.Y., Nov. 19, 2018), seeks to recover unpaid overtime wages under the New York Labor Law and Fair Labor Standards Act. Specifically, the available payroll records show that for pay periods in which the plaintiff was owed overtime pay, for working more than 40 hours in a workweek, the Defendant intentionally manipulated and reduced her applicable hourly rates in order to compute less overtime compensation than she was owed and should have been paid. This deliberate scheme to avoid paying overtime premiums to the plaintiff violated federal and state labor laws, the lawsuit says.[BN] Attorneys for Plaintiff: Steven M. Warshawsky, Esq. THE WARSHAWSKY LAW FIRM Empire State Building 350 Fifth Avenue, 59th Floor New York, NY 10118 Telephone: (212) 601-1980 E-mail: smw@warshawskylawfirm.com - and - Tomasz J. Piotrowski, esq. T.J. PIOTROWSKI LAW FIRM 176 Kent Street, Suite 2L Brooklyn, NY 11222 Telephone: (917) 612-0788 E-mail: tomjerzy@msn.com JAGUAR HEALTH: Bid to Dismiss Tony Plant's Class Suit Underway -------------------------------------------------------------- Jaguar Health, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 19, 2018, for the quarterly period ended September 30, 2018, that plaintiff's memorandum of law in opposition to the defendants' motion to dismiss is due on December 21, 2018. On July 20, 2017, a putative class action complaint was filed in the United States District Court, Northern District of California, Civil Action No. 3:17‑cv‑04102, by Tony Plant (the "Plaintiff") on behalf of shareholders of the Company who held shares on September 30, 2017 and were entitled to vote at the 2017 Special Shareholders Meeting, against the Company and certain individuals who were directors as of the date of the vote (collectively, the "Defendants"), in a matter captioned Tony Plant v. Jaguar Animal Health, Inc., et al., making claims arising under Section 14(a) and Section 20(a) of the Exchange Act and Rule 14a‑9, 17 C.F.R. Section 240.14a‑9, promulgated thereunder by the SEC. The claims alleged false and misleading information provided to investors in the Joint Proxy Statement/Prospectus on Form S‑4 (File No. 333‑217364) declared effective by the Commission on July 6, 2017 related to the solicitation of votes from shareholders to approve the merger and certain transactions related thereto. The Company accepted service of the complaint and summons on behalf of itself and the United States-based director Defendants on November 1, 2017. The Company has not accepted service on behalf of, and Plaintiff has not yet served, the non-U.S.-based director Defendants. On October 3, 2017, Plaintiff filed a motion seeking appointment as lead plaintiff and appointment of Monteverde & Associates PC as lead counsel. That motion was granted. Plaintiff filed an amended complaint against the Company and the United States-based director Defendants on January 10, 2018. The Defendants filed a motion to dismiss on March 12, 2018, for which oral arguments were held on June 14, 2018. The court dismissed the complaint on September 20, 2018. Plaintiff was entitled to amend the complaint within 20 days from the date of dismissal. On October 10, 2018, Plaintiff amended the complaint to focus on the Company's commercial strategy in support of Equilevia. On November 6, 2018, the Defendants moved to dismiss the second amended complaint. The Defendants argue in their motion that the complaint fails to state a claim upon which relief can be granted because the omissions and misrepresentations alleged in the complaint are immaterial as a matter of law. Plaintiff's memorandum of law in opposition to the Defendants' motion to dismiss is due on December 21, 2018. If the Plaintiff were able to prove its allegations in this matter and to establish the damages it asserts, then an adverse ruling could have a material impact on the Company. Jaguar Health said, "The Company believes that it is not probable that an asset has been impaired or a liability has been incurred as of the date of the financial statements and the amount of any potential loss is not reasonably estimable." Jaguar Health, Inc., a commercial stage natural-products pharmaceuticals company, focuses on developing gastrointestinal products for human prescription use and animals worldwide. The company, through its wholly-owned subsidiary, Napo Pharmaceuticals, Inc., focuses on developing and commercializing proprietary human gastrointestinal pharmaceuticals for the global marketplace from plants used traditionally in rainforest areas. Jaguar Health, Inc. is headquartered in San Francisco, California. JONES FINANCIAL: Anderson Class Action Still Ongoing ---------------------------------------------------- The Jones Financial Companies, L.L.L.P. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 13, 2018, for the quarterly period ended September 28, 2018, that Edward D. Jones & Co., L.P. continues to defend itself in a class action suit entitled, Anderson, et. al. v. Edward D. Jones & Co., L.P., et. al. On March 30, 2018, Edward D. Jones & Co., L.P. and its affiliated entities and individuals were named as defendants in a putative class action (Anderson, et. al. v. Edward D. Jones & Co., L.P., et. al.) filed in the U.S. District Court for the Eastern District of California. The lawsuit was brought under the Securities Act of 1933 and the Securities Exchange Act of 1934, as well as Missouri and California law and alleges that the defendants inappropriately transitioned clients from commission-based accounts to fee-based programs. The plaintiffs have requested declaratory, equitable, and exemplary relief, and compensatory damages. Edward Jones and its affiliated entities and individuals deny the allegations and intend to vigorously defend this lawsuit. No further updates were provided in the Company's SEC report. The Jones Financial Companies, L.L.L.P., through its subsidiary, Edward D. Jones & Co., L.P., operates as a registered broker-dealer. The company provides investment advisory services; shareholder accounting services, including maintaining client account information and other administrative services for the mutual funds; insurance contract services to insurance companies; and custodial and other account services. The Jones Financial Companies, L.L.L.P. was founded in 1871 and is headquartered in Des Peres, Missouri. JONES FINANCIAL: Class Action over 401(k) Plan Ongoing ------------------------------------------------------ The Jones Financial Companies, L.L.L.P. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 13, 2018, for the quarterly period ended September 28, 2018, that the company continues to defend itself in a class action suit involving the Edward D. Jones & Co. Profit Sharing and 401(k) Plan. On August 19, 2016, JFC, Edward Jones and certain other defendants were named in a putative class action lawsuit (McDonald v. Edward D. Jones & Co., L.P., et al.) filed in the U.S. District Court for the Eastern District of Missouri brought under Employee Retirement Income Security Act (ERISA), by a participant in the Edward D. Jones & Co. Profit Sharing and 401(k) Plan (the "Retirement Plan"). The lawsuit alleges that the defendants breached their fiduciary duties to Retirement Plan participants and seeks declaratory and equitable relief and monetary damages on behalf of the Retirement Plan. The defendants filed a motion to dismiss the McDonald lawsuit which was granted in part dismissing the claim against JFC, and denied in part as to all other defendants on January 26, 2017. On November 11, 2016, a substantially similar lawsuit (Schultz, et al. v. Edward D. Jones & Co., L.P., et al.) was filed in the same court. The plaintiffs consolidated the two lawsuits by adding the Schultz plaintiffs to the McDonald case, and the Schultz action was dismissed. The plaintiffs filed their first amended consolidated complaint on April 28, 2017. The defendants filed a motion to dismiss the lawsuit on May 26, 2017, which was denied on March 27, 2018. No further updates were provided in the Company's SEC report. The Jones Financial Companies, L.L.L.P., through its subsidiary, Edward D. Jones & Co., L.P., operates as a registered broker-dealer. The company provides investment advisory services; shareholder accounting services, including maintaining client account information and other administrative services for the mutual funds; insurance contract services to insurance companies; and custodial and other account services. The Jones Financial Companies, L.L.L.P. was founded in 1871 and is headquartered in Des Peres, Missouri. JONES FINANCIAL: Settlement Accounting in "White" Set for Jan. 2019 ------------------------------------------------------------------- The Jones Financial Companies, L.L.L.P. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 13, 2018, for the quarterly period ended September 28, 2018, that the final settlement accounting in White v. Edward D. Jones & Co., L.P., is scheduled to be completed in January 2019. On September 22, 2017, Edward Jones was named as a defendant in a purported collective and class action lawsuit (White v. Edward D. Jones & Co., L.P.) filed in the U.S. District Court for the Northern District of Ohio by a former branch office administrator. The lawsuit was brought under the Fair Labor Standards Act as well as Ohio law and alleges that Edward Jones underpaid overtime compensation to branch office administrators. The lawsuit seeks compensatory damages in the amount of the unpaid wages as well as liquidated damages in an equal amount. On April 24, 2018, the court approved the parties' settlement and issued its final order of dismissal, without prejudice. The case will be considered to be dismissed with prejudice in late December 2018. The final settlement accounting is scheduled to be completed in January 2019. The Jones Financial Companies, L.L.L.P., through its subsidiary, Edward D. Jones & Co., L.P., operates as a registered broker-dealer. The company provides investment advisory services; shareholder accounting services, including maintaining client account information and other administrative services for the mutual funds; insurance contract services to insurance companies; and custodial and other account services. The Jones Financial Companies, L.L.L.P. was founded in 1871 and is headquartered in Des Peres, Missouri. JONES MOTOR: 7th Cir. Tosses Daley Appeal for Lack of Jurisdiction ------------------------------------------------------------------ The United States Court of Appeals, Seventh Circuit dismissed the appeals case captioned MICHAEL DALEY, Plaintiff-Appellant, v. JONES MOTOR COMPANY, INCORPORATED and ZURICH AMERICAN INSURANCE COMPANY, Defendants-Appellees, No. 18-1924 (7th Cir.) for lack of subject matter jurisdiction. Michael Daley worked for Jones Motor Company as a truck driver. During that time, he alleged that Jones Motor improperly classified him and his fellow drivers as independent contractors rather than employees, resulting in an illicit denial of workers' compensation benefits. He further alleged that Jones Motor forced the drivers to purchase their own insurance policies from Zurich American Insurance Company. The workers paid for these policies through weekly deductions of about $38 from their paychecks. Finally, Daley alleged that Jones Motor and Zurich conspired to prevent workers from filing claims with the Illinois Workers Compensation Commission by settling the claims, effectively buying the injured workers' silence and avoiding governmental scrutiny of Jones Motor's practice. Daley filed a class action suit in federal court. He alleged six counts, including civil conspiracy between Jones Motor and Zurich, violations of the Illinois Consumer Fraud and Deceptive Business Practices Act, unjust enrichment, and violations of the Illinois Wage Payment and Collection Act. But before Daley could obtain class certification, the district court dismissed the case for failure to state a claim upon which relief can be granted. The district court determined that although Daley might theoretically prosecute his claims in federal court, he first had to obtain a factual determination that he was an employee and not an independent contractor. Illinois law seems to reserve that question to the Commission. As a result, the district court dismissed the case without prejudice. Daley appealed that question of law. Because Daley's proposed class does not contain at least 100 members, the Court lack subject matter jurisdiction under section 1332(d). As well, because complete diversity does not exist between the parties, the Court lack diversity jurisdiction under section 1331(a). The Court, therefore, vacates the opinion of the district court and modifies the district court's judgment of dismissal without prejudice to reflect dismissal for lack of subject matter jurisdiction. A copy of the Seventh Circuit's Order dated Nov. 20, 2018 is available at https://bit.ly/2zFiX3S from Leagle.com. Roy C. Dripps for Plaintiff-Appellant. Michael Todd Blotevogel -- mikeb@adwblaw.com -- for Plaintiff-Appellant. Beth Ann Berger Zerman -- bethann.berger@lewisbrisbois.com -- for Defendant-Appellee. Emily Collins Fess for Defendant-Appellee. David M. Krueger -- dkrueger@beneschlaw.com -- for Defendant-Appellee. Joseph N. Gross for Defendant-Appellee. LADENBURG THALMANN: Still Defends Class Suits vs. ARCP in New York ------------------------------------------------------------------ Ladenburg Thalmann Financial Services Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 7, 2018, for the quarterly period ended September 30, 2018, that the company continues to defend itself as one of the 17 underwriters in two purported class action suits filed against American Realty Capital Partners, Inc. ("ARCP"). In December 2014 and January 2015, two purported class action suits were filed in the U.S. District Court for the Southern District of New York against American Realty Capital Partners, Inc. ("ARCP"), certain affiliated entities and individuals, ARCP's auditing firm, and the underwriters of ARCP's May 2014 $1,656,000 common stock offering ("May 2014 Offering") and three prior note offerings. The complaints have been consolidated. Ladenburg was named as a defendant as one of 17 underwriters of the May 2014 Offering and as one of eight underwriters of ARCP's July 2013 offering of $300,000 in convertible notes. The complaint alleges, among other things, that the offering materials were misleading based on financial reporting of expenses, improperly-calculated AFFO (adjusted funds from operations), and false and misleading Sarbanes-Oxley certifications, including statements as to ARCP's internal controls, and that the underwriters are liable for violations of federal securities laws. The plaintiffs seek an unspecified amount of compensatory damages, as well as other relief. In June 2016, the court denied the underwriters' motions to dismiss the complaint. In August 2017, the court granted the plaintiffs' motion for class certification. Ladenburg intends to vigorously defend against these claims. No further updates were provided in the Company's SEC report. Ladenburg Thalmann Financial Services Inc. operates as a diversified financial services company in the United States. Its Independent Advisory and Brokerage Services segment offers advisory and securities brokerage services for clients, including advisor managed accounts, general securities, mutual funds, and variable and fixed annuities; brokerage support services, such as access to stock, bond, ETF, and options execution; products comprising insurance, non-traded real estate investment trusts, and unit trusts; and research, compliance, supervision, accounting, and related services. Ladenburg Thalmann Financial Services Inc. was founded in 1876 and is based in Miami, Florida. LEXINGTON LAW: Starace Sues over Debiting of Bank Accounts ---------------------------------------------------------- MARTIN STARACE, individually and on behalf of all others similarly situated, the Plaintiff, vs. LEXINGTON LAW FIRM and DOES 1-10, the Defendants, Case No. 1:18-at-00844 (E.D. Cal., Nov. 19, 2018), seeks damages, injunctive relief, and any other available legal or equitable remedies, resulting from the illegal actions of Defendants debiting Plaintiff's bank accounts on a recurring basis without obtaining a written authorization signed or similarly authenticated for preauthorized electronic fund for violation of the Electronic Funds Transfer Act, and violation of the Unfair Competition Law. According to the complaint, in or around, 2018, the Plaintiff contacted Defendant in an attempt to repair Plaintiff's credit. The Defendant's agent informed Plaintiff that he could initiate service with Defendant by providing his debt card information. The Plaintiff provided Defendant's agent with his debit card number. However, without Plaintiff's knowledge or consent, Defendant continued to deduct funds from Plaintiff's account multiple times on a reoccurring basis, without providing Plaintiff a written authorization to do so. The Plaintiff was only given an update on the disputes Defendant had filed for him. The Plaintiff never provided Defendant with any authorization to deduct these sums of money on a regular recurring basis from Plaintiff's banking account. The Defendants did not provide to Plaintiff, nor did Plaintiff execute, any written or electronic writing memorializing or authorizing these recurring or automatic payments, the lawsuit says.[BN] Attorneys for Plaintiff: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. Meghan E. George, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St., Suite 780 Woodland Hills, CA 91367 Telephone: (323) 306-4234 Facsimile: 866-633-0228 E-mail: tfriedman@toddflaw.com abacon@toddflaw.com mgeorge@toddflaw.com LI YA NAIL: Mengni Sun Seeks Overtime Compensation -------------------------------------------------- Mengni Sun, individually and on behalf of all other Employees similarly situated, the Plaintiff(s), vs. LI YA NAIL SPA INC. d/b/a. LI YA NAIL SPA, AILLEN NAIL & SPA INC d/b/a BAI LI NAIL, Jane Doe a/k/a Lily Gao, John Doe and Jane Doe No. 1-10, the Defendants, Case No. 2:18-cv-06609 (E.D.N.Y., Nov. 19, 2018), alleges that Defendants have willfully and intentionally committed widespread violations of the Fair Labor Standards Act and the New York Labor Law by engaging in a pattern and practice of failing to pay their employees, including Plaintiff, overtime compensation for all hours worked over 40 each workweek. According to the complaint, Defendants failed to provide Ms. Sun with written notices providing the information required by the Wage Theft Prevention Act -- including, inter alia, Defendants' contact information, her regular and overtime rates, and intended allowances claimed -- and failed to obtain her signatures acknowledging the same, upon her hiring or at any time thereafter, in violation of the Wage Theft Prevention Act in effect at the time. The Defendants knew that the nonpayment of overtime and the "spread of hours" premium would economically injure Plaintiff and the Collective Members by their violation of federal and state laws, the lawsuit says.[BN] Attorneys for Plaintiff(s): Hui Chen, Esq. HUI CHEN AND ASSOCIATES, P.L.L.C. 136-20 38th Ave., Suite 9E Flushing, NY 11354 Telephone: (718) 463-2666 E-mail: hui.chen@alum.cardozo.yu.edu LINCOLN ELECTRIC: Slaughter Seeks Overtime Pay ---------------------------------------------- QUINTIN SLAUGHTER, on behalf of himself and all others similarly situated, the Plaintiff, vs. THE LINCOLN ELECTRIC COMPANY, the Defendant, Case No. 1:18-cv-02705 (N.D. Ohio, Nov. 20, 2018), challenges policies and practices of Defendant that violate the Fair Labor Standards Act and concerns underpayment of overtime to non-exempt employees, pursuant to the the Ohio Minimum Fair Wage Standards Act. The Plaintiff was employed by Defendant as a non-exempt production employee at Defendant's Euclid, Ohio location since approximately June 25, 2018. Other employees similarly-situated to Plaintiff are or were employed at Defendant's Euclid and Mentor, Ohio locations. The Plaintiff and other similarly-situated employees were non-exempt employees under the FLSA and the OMFWSA, who were paid piece rate or hourly wages and who were paid non-discretionary bonuses. The Plaintiff and other similarly situated employees routinely worked 40 or more hours per workweek. Defendant's failure to pay Plaintiff and those similarly situated resulted in Plaintiff and those similarly situated being denied overtime compensation, the lawsuit says. Lincoln Electric is an American multinational and a global manufacturer of welding products, arc welding equipment, welding consumables, plasma and oxy-fuel cutting equipment and robotic welding systems.[BN] Counsel for Plaintiff: Hans A. Nilges, Esq. Shannon M. Draher, Esq. Robi J. Baishnab, Esq. 7266 Portage Street, N.W., Suite D Massillon, OH 44646 Telephone: (330) 470-4428 Facsimile: (330) 754-1430 E-mail: hans@ohlaborlaw.com sdraher@ohlaborlaw.com rbaishnab@ohlaborlaw.com LM FUNDING: Solaris Class Settlement Obtains Final Court Approval ----------------------------------------------------------------- In the action entitled Solaris at Brickell Bay Condominium Association, Inc. v. LM Funding, LLC, the Court entered an order on November 6, 2018 granting Plaintiff's Motion for Final Approval of Class Action Settlement, according to LM Funding America, Inc.'s Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2018. The New Settlement Agreement will also reimburse the Plaintiff's opposing counsel US$99,000 plus an administrative fee. The Company said, "We were a defendant in an action entitled Solaris at Brickell Bay Condominium Association, Inc. v. LM Funding, LLC, which was brought before the Circuit Court of the Eleventh Judicial Circuit, Miami-Dade Civil Division on July 31, 2014. In this matter, which was initially preliminarily settled in August 2017, the plaintiff (an association under contract with us) alleged claims such as a usurious loan transaction, state and federal civil Racketeer Influenced and Corrupt Organization Act claims, Florida Deceptive and Unfair Trade Practices Act ("FDUTPA") violations, and other related claims, and the plaintiff requested rescission of their agreement with us, forfeiture of all amounts lent by us to the plaintiff, a declaratory judgment that we have violated FDUTPA, other damages for breach of contract and violations of FDUTPA, and attorneys' fees. On August 4, 2017, an order by the court was entered on Plaintiff's Motion for Preliminary Approval of Class Action Settlement Agreement. In the order, the motion of the Plaintiff, Solaris at Brickell Bay Condominium Association, Inc., individually and on behalf of the certified plaintiff class ("Plaintiffs"), for approval of the Class Action Settlement Agreement (the "Settlement Agreement") with Defendant LM Funding, LLC was granted. "Despite our belief that we are not liable for the claims asserted and that we have good defenses thereto, we nevertheless agreed to enter into the Settlement Agreement in order to: (1) avoid any further expense, inconvenience, and distraction of burdensome and protracted litigation and its consequential negative financial effects to our operations; (2) obtain the releases, orders, and final judgment contemplated by the Settlement Agreement; and (3) put to rest and terminate with finality all claims that had been or could have been asserted against us by the Plaintiffs arising from the facts alleged in the lawsuit. Pursuant to the agreement subsequently reached between counsel, all required actions and deadlines set forth in the Settlement Agreement are currently stayed. On March 1, 2018 a continuation of the abatement was granted until April 2, 2018. As of December 31, 2017, the Company had accrued costs of US$505,000 as part of the Settlement Agreement. The settlement amount was contingent upon the Company obtaining sufficient financing within the allotted timeframe of the Settlement Agreement. On April 2, 2018, the Plaintiffs withdrew from the Settlement Agreement. "On August 14, 2018, the parties to the Solaris class action litigation entered into a revised settlement in which the Plaintiffs amended their complaint (the Fourth Amended Complaint) to reflect no demand for damages and only a claim for declarative and injunctive relief and amended the class definition to reflect a requirement that class members must have active units still under contract with LMF under a "Traditional Model" waterfall in the Allocation of Collection Proceeds. This was submitted to the court who approved the amended Complaint and Class Action Settlement Agreement. On November 6, 2018, the court entered an order granting Plaintiff's Motion for Final Approval of Class Action Settlement. The New Settlement Agreement will also reimburse the Plaintiff's opposing counsel US$99,000 plus an administrative fee. "As such, the Company adjusted the class action accrual to US$100,000 and recorded a US$405,000 class action reversal to the statement of operations. The amount was paid in the third quarter ended September 30, 2018. "The Company received a US$200,000 insurance reimbursement for a previously resolved case that is reflected as a reduction of professional fees for the three and nine months ended September 30, 2018." LM Funding America, Inc., through its subsidiary, LM Funding, LLC, operates as a specialty finance company. It provides funding to nonprofit community associations (Associations) primarily located in the state of Florida, as well as in the states of Washington, Colorado, and Illinois. The company offers funding to Associations by purchasing their rights under delinquent accounts that are selected by the Associations arising from unpaid Association assessments. The company is based in Tampa, Florida. MAGICJACK VOCALTEC: Amended Freedman Suit Dismissed with Prejudice ------------------------------------------------------------------ In the case, ROBERT FREEDMAN, individually and on behalf of all others similarly situated, Plaintiffs, v. MAGICJACK VOCALTEC LTD., an Israeli corporation; DON C. BELL III; GERALD VENTO; DONALD A. BURNS; RICHARD HARRIS; YUEN WAH SING; ALAN HOWE; IZHAK GROSS; and TALI YARON-ELDAR, Defendants, Case No. 9:17-CV-80940-ROSENBERG/REINHART (S.D. Fla.), Judge Robin L. Rosenberg of the U.S. District Court for the Southern District of Florida granted the Defendants' Motion to Dismiss Second Amended Complaint. Freedman brought te action on Aug. 11, 2017 by filing a Class Action Complaint against magicJack, YMax Corp., Bell, Vento, Burns, Harris, Sing, Howe, Gross, Yaron-Eldar and Yoseph Daube. On Jan. 2, 2018, the Plaintiff voluntarily dismissed all claims against Dauber, and filed an amended complaint. On April 19, 2018, the remaining Defendants moved to dismiss the amended complaint. By Order dated Au. 9, 2018; the Court dismissed the amended complaint without prejudice, and permitted the Plaintiff one more opportunity to amend. The Plaintiff subsequently filed his Second Amended Complaint against all the remaining Defendants except for YMax. Defendant magicJack is a publicly-traded company organized under the laws of Israel, with its principal place of business in Florida. The Individual Defendants are current or former directors of magicJack. On Nov. 9, 2017, magicJack entered into an agreement under which the Company would be sold to B. Riley & Co. for a price of $8.71 per share. On Feb. 8, 2018, magicJack issued a proxy statement in connection with a shareholder meeting to be held on March 19, 2018 for the purpose of voting on whether to approve the B. Riley Transaction. The transaction was approved by shareholders. The Complaint alleges that the Defendants made material misrepresentations, or omitted material facts, in two proxy statements regarding the valuation and financial prospects of a company known as Broadsmart, which magicJack acquired in March 2016 for $40 million. The Plaintiff seeks damages to redress an injury suffered relating to the $8.71 per share price, which the Plaintiff argues is less than an earlier non-binding, pre-due diligence offer for the Company. However, the Plaintiff does not allege that the proxy statement regarding the B. Riley Transaction contained any misleading statements or omissions, and does not challenge that proxy statement in the Complaint in any way. The Plaintiff brings the action on behalf of himself and a putative class of all holders of magicJack common stock who were or will be harmed by the Defendants' actions as described in the Complaint, which refers to a class of shareholders who received proxy statements in connection with shareholder votes in the spring of 2017. The Plaintiff also defines the putative class as all purchasers of the common stock of magicJack during the Class Period. The Complaint contains two counts: one against all the Defendants, for violations of Section 14(a) of the Securities Exchange Act of 1934 and SEC Rule 14a-9, and the other against the individual Defendants for control-person liability under Section 20(a) of the Exchange Act. The Defendants argue that the Plaintiff's claims are derivative in nature and that the claims should be dismissed for failure to allege a demand made upon the defendant corporation. Judge Rosenberg agrees. In its August 2018 Order, the Court provided the Plaintiff with a clear directive, after the Plaintiff already had amended his complaint once on Jan. 2, 2018, DE 37, that he would need to allege direct injuries to proceed with an individual action, given that he failed to allege that he made a demand on the corporation. The Plaintiff was specifically instructed by the Court to amend the Complaint in a manner that would make it clear that the alleged injuries in the case flowed to the Plaintiff and not the Defendant corporation. The Plaintiff's failure to follow those instructions and cure the pleading deficiencies warrants the Court's dismissal of the Second Amended Complaint without further leave to amend. Furthermore, the case has been pending since Aug. 11, 2017, thus providing the Plaintiff with ample opportunity to sufficiently allege a cause of action against the Defendants. As the Plaintiff has not attempted to plead a corporate derivative claim, but rather has persisted in his efforts to allege an individual claim, this dismissal does not address the Plaintiff's ability to bring a derivative action. Accordingly, Judge Rosenberg granted the Defendants' Motion to Dismis. The Second Amended Complaint as pled as an individual action is dismissed with prejudice. She denied the request for oral argument. The Clerk is ordered to close the case. A full-text copy of the Court's Nov. 21, 2018 Order is available at https://is.gd/VJv4iL from Leagle.com. Robert Freedman, individually and on behalf of all others similarly situated, Plaintiff, represented by Jeffrey R. Krinsk -- jrk@classactionlaw.com -- Finkelstein and Krinsk, LLP, pro hac vice & Kyle Charles Young -- kcy@lawyer.com -- Kyle Charles Young PL. Magicjack Vocaltec Ltd., Don C. Bell, III, Gerald Vento, Donald A. Burns, Richard Harris, Yuen Wah Sing, Alan Howe, Izhak Gross & Tali Yaron-Eldar, Defendants, represented by Chris LaRocco -- chris.larocco@bclplaw.com -- Bryan Cave LLP, pro hac vice, Eric Rieder -- ERieder@bclplaw.com -- Bryan Cave LLP, pro hac vice, Glenn B. Coleman -- GBColeman@bclplaw.com -- Bryan Cave LLP, pro hac vice & David Axelman -- David.Axelman@bclplaw.com -- Bryan Cave Leighton Paisner LLP. MAHABIR ENTERPRISES: Underpays Waitresses, Acteopan et al. Claim ---------------------------------------------------------------- BERNARDINA ACTEOPAN, and ANA KAREN RAMIREZ ACTEOPAN, individually and on behalf of others similarly situated, Plaintiffs v. MAHABIR ENTERPRISES LLC D/B/A SOPHIE'S CUBAN CUISINE; SOPHIE'S RESTAURANT #3 LLC D/B/A SOPHIE'S CUBAN CUISINE; PATRICIA MAHABIR SANTOS; EDUARDO MAREO; VIVIANA SANTACRUZ; MANUELA MATOS; JUANITO DOE; HELEN DOE; and SELENA DOE, Defendants, Case No. 1:18-cv-09971 (S.D.N.Y., Oct. 29, 2018) is an action against the Defendants for unpaid regular hours, overtime hours, minimum wages, wages for missed meal and rest periods. The Plaintiff were employed by the Defendants as waitresses. Mahabir Enterprises LLC d/b/a Sophie's Cuban Cuisine owns, operate, and control two Cuban restaurants in New York, New York. [BN] The Plaintiffs are represented by: Michael Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 4510 New York, NY 10165 Telephone: (212) 317-1200 Facsimile: (212) 317-1620 MALLINCKRODT PLC: Still Defends Consolidated Class Suit in D.C. --------------------------------------------------------------- Mallinckrodt public limited company said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 6, 2018, for the quarterly period ended September 28, 2018, that the company continues to defend a consolidated class action suit in the U.S. District Court for the District of Columbia. On January 23, 2017, a putative class action lawsuit was filed against the Company and its CEO in the U.S. District Court for the District of Columbia, captioned Patricia A. Shenk v. Mallinckrodt plc, et al. The complaint purports to be brought on behalf of all persons who purchased Mallinckrodt's publicly traded securities on a domestic exchange between November 25, 2014 and January 18, 2017. The lawsuit generally alleges that the Company made false or misleading statements related to H.P. Acthar Gel and Synacthen to artificially inflate the price of the Company's stock. In particular, the complaint alleges a failure by the Company to provide accurate disclosures concerning the long-term sustainability of H.P. Acthar Gel revenues, and the exposure of H.P. Acthar Gel to Medicare and Medicaid reimbursement rates. On January 26, 2017, a second putative class action lawsuit, captioned Jyotindra Patel v. Mallinckrodt plc, et al. was filed against the same defendants named in the Shenk lawsuit in the U.S. District Court for the District of Columbia. The Patel complaint purports to be brought on behalf of shareholders during the same period of time as that set forth in the Shenk lawsuit and asserts claims similar to those set forth in the Shenk lawsuit. On March 13, 2017, a third putative class action lawsuit, captioned Amy T. Schwartz, et al., v. Mallinckrodt plc, et al., was filed against the same defendants named in the Shenk lawsuit in the U.S. District Court for the District of Columbia. The Schwartz complaint purports to be brought on behalf of shareholders who purchased shares of the Company between July 14, 2014 and January 18, 2017 and asserts claims similar to those set forth in the Shenk lawsuit. On March 23, 2017, a fourth putative class action lawsuit, captioned Fulton County Employees' Retirement System v. Mallinckrodt plc, et al., was filed against the Company and its CEO and CFO in the U.S. District Court for the District of Columbia. The Fulton County complaint purports to be brought on behalf of shareholders during the same period of time as that set forth in the Schwartz lawsuit and asserts claims similar to those set forth in the Shenk lawsuit. On March 27, 2017, four separate plaintiff groups moved to consolidate the pending cases and to be appointed as lead plaintiffs in the consolidated case. Since that time, two of the plaintiff groups have withdrawn their motions. Lead plaintiff was designated by the court on March 9, 2018. Lead Plaintiff filed a consolidated complaint on May 18, 2018, alleging a class period from July 14, 2014 to November 6, 2017, the Company, its CEO, its CFO, and Executive Vice President, Hugh O'Neill, as defendants, and containing similar claims, but further alleging misstatements regarding payer reimbursement restrictions for H.P. Acthar Gel. On August 30, 2018, Lead Plaintiff voluntarily dismissed the claims against Mr. O'Neill without prejudice. The Company intends to vigorously defend itself in this matter. Mallinckrodt public limited company develops, manufactures, markets, and distributes branded pharmaceutical products in Canada and the European Union, as well as in Latin American, the Middle Eastern, African, and the Asia-Pacific regions. The company markets branded pharmaceutical products for autoimmune and rare diseases in the specialty areas of neurology, rheumatology, nephrology, ophthalmology, and pulmonology; and immunotherapy and neonatal respiratory critical care therapies, as well as analgesics and gastrointestinal products. The company is based in Staines-Upon-Thames, the United Kingdom. MARTIN COUNTY, FL: Randolph at al. Suit Wins Class Certification ---------------------------------------------------------------- DIANA RANDOLPH, DANA LIBERANTE & LISA EWELL, and all other similarly-situated individuals, the Plaintiffs, v. WILLIAM D. SNYDER, in his official capacity as SHERIFF OF MARTIN COUNTY, the Defendant, Case No. 2:18-cv-14120-RLR (S.D. Fla.), the Hon. Judge Robin L. Rosenberg entered an order granting Plaintiffs' motion for authorized class notification and collective action certification of: "all current and former officers of Defendant who, since January of 2018, were required to attend mandatory briefings and were not paid for overtime for such attendance." The Court said, "First, Defendant requests that instead of being addressed to "All Custodial Officers," the notice should be addressed to "Corrections Deputies." The Court disagrees -- the Court has conditionally certified a collective action for all officers -- not just correctional officers -- who were required to attend briefings and who were not compensated accordingly. Second, Defendant argues that Plaintiffs' affidavits are vague and conclusory. The Court does not agree. Third and finally, Defendant argues that Plaintiffs have not shown that there are more similarly-situated employees who desire to opt-in to this suit. In light of the large number of officers employed by Defendant and that thirteen Plaintiffs have already joined this suit, the Defendant's argument on this point is unpersuasive."[CC] MAXIMUS INC: Appeal in Virginia Class Action Pending ---------------------------------------------------- Maximus, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on November 20, 2018, for the fiscal year ended September 30, 2018, that the plaintiffs in the putative class action suit filed in the U.S. District Court for the Eastern District of Virginia, have filed a notice of appeal to the U.S. Circuit Court for the Fourth Circuit. That appeal is pending. In August 2017, the Company and certain officers were named as defendants in a putative class action lawsuit filed in the U.S. District Court for the Eastern District of Virginia. The plaintiff alleged the defendants made a variety of materially false and misleading statements, or failed to disclose material information, concerning the status of the Company's Health Assessment Advisory Service project for the U.K. Department for Work and Pensions from the period of October 20, 2014 through February 3, 2016. In August 2018, the defendants' motion to dismiss the case was granted, and the case was dismissed. In October 2018, the plaintiffs filed a notice of appeal to the U.S. Circuit Court for the Fourth Circuit. That appeal is pending. Maximus said, "At this time, it is not possible to reasonably predict whether this matter will be permitted to proceed as a class or to reasonably estimate the value of the claims asserted, and we are unable to estimate the potential loss or range of loss." Maximus, Inc. provides business process services (BPS) to government health and human services programs worldwide. The company was founded in 1975 and is headquartered in Reston, Virginia. MDL 2624: $8.3MM Settlement in Lenovo Adware Suit Has Prelim OK --------------------------------------------------------------- In the case, IN RE: LENOVO ADWARE LITIGATION. This Document Relates to All Cases, Case No. 15-md-02624-HSG (N.D. Cal.), Judge Haywood S. Gilliam, Jr. of the U.S. District Court for the Northern District of California granted the Plaintiffs' unopposed motion for preliminary approval of class action settlement. The Plaintiffs bring the consumer class action against Defendants Lenovo, Inc. and Superfish, Inc., asserting claims under federal, California, and New York law. The Plaintiffs allege that Superfish's VisualDiscovery software, which Lenovo had preinstalled on its laptops, created performance, privacy, and security issues. Id. Plaintiffs allege several causes of action against Superfish and Lenovo for violations of: (1) the Computer Fraud and Abuse Act; (2) California's Unfair Competition Law; (3) California's Consumer Legal Remedies Act; (4) California's Computer Crime Law; (5) California's Invasion of Privacy Act; (6) trespass to chattels under California law; (7) New York's Deceptive Acts and Practices Statute; and (8) trespass to chattels under New York law. The Plaintiffs also allege a violation of the Wiretap Act against Superfish. On Jan. 21, 2016, the Defendant filed a motion to dismiss the Plaintiffs' claims for lack of standing and failure to state a claim. On July 22, 2016, the Plaintiffs filed a motion for class certification. On Oct. 27, 2016, the Court granted the Defendant's motion to dismiss in part. It also granted the Plaintiffs' motion for class certification in part, certifying an indirect purchaser class and California class. The "Indirect Purchaser Class" includes all persons who purchased one or more Lenovo computer models, on which VisualDiscovery was installed, in the United States from someone other than Lenovo. The "California Class" includes all persons who purchased one or more Lenovo computer models, on which VisualDiscovery was installed in California. The Court denied the Plaintiffs' motion to certify a direct purchaser class. In response, the Plaintiffs filed an amended consolidated class action complaint ("ACCAC") on Decber 7. 2016. On Jan. 17, 2017, Lenovo moved to dismiss only the Plaintiffs' realleged claim under New York's Deceptive Acts and Practices Statute. On Jan. 30, 2018, the Court granted Lenovo's partial motion to dismiss. The Plaintiffs initially reached a settlement with Superfish and filed a motion for preliminary approval of class action settlement as to Superfish on Dec. 9, 2016. The parties agreed to hold the motion for preliminary approval of that partial settlement in abeyance until the Court ruled on further motions regarding class certification. The Plaintiffs withdrew their motion for preliminary approval of the Superfish settlement when the currently pending motion for preliminary approval, which covers settlements with both Superfish and Lenovo, was filed. Following extensive formal discovery and with the assistance of a mediator, the Plaintiffs and Superfish entered into a settlement agreement in October 2015. Superfish has since been dissolved. The key terms of the Superfish settlement are as follows: a. Class Definition: The Settlement Class is defined as all persons who purchased a Lenovo computer in the United States on which VisualDiscovery was installed by Lenovo. b. Settlement Benefits: Superfish agreed to pay $1 million to settle the claims against it. Superfish agreed to provide substantial cooperation to the Plaintiffs, including producing additional documents and discovery relevant to the litigation, providing assistance to establish the authenticity and admissibility of documents, making knowledgeable persons then-employed by Superfish available for interviews, responding to requests for assistance in understanding the facts at issue, producing at trial in person, by deposition or affidavit, representatives to testify, and assisting in seeking certification of the Settlement Class. c. The Settlement Fund will be used to: (i) pay all necessary expenses associated with the Escrow Account; (ii) pay all necessary expenses to administer the Settlement, including the cost of a settlement administrator and notice costs; (iii) pay any award to the Class Counsel of attorneys' fees and reimbursement of litigation expenses; (iv) pay the class members pursuant to a plan of allocation; (v) pay any cy pres recipients; and (vi) pay any taxes and tax expenses, which are treated as costs of administration of the Settlement Fund. Unless the Settlement does not become final, no portion of the Settlement Fund will revert to Superfish. d. Release: The Class members release any and all claims arising out of the installation and operation of Superfish VisualDiscovery software on certain laptop computers as alleged in the litigation. e. Class Notice, Opt-Out: The class notice will be provided in accordance with the Lenovo Settlement Agreement. f. Incentive Award, Attorneys' Fees and Costs: The Superfish Settlement Agreement does not limit the potential amount sought for an incentive award, or for attorneys' fees. The Plaintiffs and Lenovo, also after extensive discovery and with the assistance of a mediator, entered into a settlement agreement on April 27, 2018. The key terms are as follows: a. Class Definition: The Settlement Class is defined as all Persons who purchased one or more of the following computers, not for resale, within the United States between Sept. 1, 2014 and Feb.y 28, 2015: (i) G Series: G410, G510, G710, G40-70, G50-70, G40-30, G50-30, G50-45; (ii) U Series: U430P, U430Touch, U530Touch; (iii) Y Series: Y40-70, Y50-70; (iv) Z Series: Z50-75, Z40-70, Z50-70; (v) Flex Series: Flex2 14D, Flex2 15D, Flex2 14, Flex2 15, Flex2 15(BTM), Flex 10; (vi) MIIX Series: MIIX2-10, MIIX2-11; and (vii) YOGA Series: YOGA2Pro-13, YOGA2-13, YOGA2-11BTM, YOGA2-11HSW. b. Settlement Benefits: Lenovo will make a $7.3 million non-reversionary payment that will be added to the $1 million non-reversionary payment Superfish previously made. The two payments will constitute the Settlement Fund from which any class member may make a claim. c. Lenovo has separately entered into a consent decree with the Federal Trade Commission and 32 attorneys general. The consent decree forbids Lenovo from misrepresenting any features of software preloaded on laptops to inject advertising into browsing sessions or to transmit sensitive consumer information to third parties. If Lenovo preinstalls such software, it must obtain consumers' affirmative consent before the software runs on their laptops, and Lenovo also must implement a comprehensive security program for 20 years for most consumer software preloaded on its laptops. d. Release: All settlement class members will release: any and all claims, rights, causes of action, liabilities, actions, suits, damages, or demands of any kind whatsoever, known or unknown, matured or unmatured, at law or in equity, existing under federal or state law, that relate to the installation of VisualDiscovery on a Class Computer between Sept. 1, 2014, and Feb. 28, 2015 and that were or could have been alleged in the Litigation against the Defendant, including Unknown Claims. The Released Claims does not include claims relating to the enforcement of the settlement. e. Class Notice: A third-party settlement administrator will send class notices via U.S. mail and/or email based on lists provided by Lenovo and third parties. The settlement administrator will also implement a digital media campaign targeting approximately 3,410,000 Lenovo users. f. Opt-Out Procedure: The parties initially proposed that any putative class member who does not wish to participate in the settlement must submit a request for exclusion from the class no later than 75 days after entry of the Preliminary Approval Order. The parties agreed at hearing that the deadline for a putative class member to submit a request for exclusion would be 75 days after the mailing of class notice. g. Incentive Award: Although the Lenovo Settlement Agreement does not include a limit on the incentive awards that the Named Plaintiffs may seek, the exemplar notice forms indicate that each of the Named Plaintiffs will apply for an incentive award of $5,000. h. Attorneys' Fees and Costs: Neither settlement agreement includes a limit on attorneys' fees and costs. One exemplar notice form indicates that attorneys' fees will not exceed 30% of the Settlement Fund, and the Plaintiffs' counsel confirmed at hearing that counsel will not seek attorneys' fees beyond 30% of the Settlement Fund. Judge Gilliam granted the Plaintiffs' motion for preliminary approval of class action settlement. He directed the parties to meet and confer and stipulate to a schedule of dates for each event listed, which will be submitted to the Court within seven days of the date of the Order: a. Deadline for Settlement Administrator to mail notice to all putative class members b. Filing Deadline for attorneys' fees and costs motion c. Filing deadline for incentive payment motion d. Deadline for class members to opt-out or object to settlement and/or application for attorneys' fees and costs and incentive payment e. Filing deadline for final approval motion f. Final fairness hearing and hearing on motions The parties are further directed to implement the proposed class notice plan. A full-text copy of the Court's Nov. 21, 2018 Order is available at https://is.gd/9Z32P8 from Leagle.com. In Re: Lenovo Adware Litigation, In Re, represented by Jonathan Krasne Levine -- jkl@pritzkerlevine.com -- Pritzker Levine, LLP. Sterling International Consulting Group, Plaintiff, represented by Elizabeth Cheryl Pritzker -- ecp@pritzkerlevine.com -- Pritzker Levine LLP & Jonathan Krasne Levine , Pritzker Levine, LLP. David Hunter, Plaintiff, represented by Benjamin Harris Richman -- brichman@edelson.com -- Edelson PC, Jay Edelson , Edelson PC, Rafey Sarkis Balabanian -- rbalabanian@edelson.com -- Edelson PC & Samuel Lasser -- samlasser@hotmail.com -- Law Office of Samuel Lasser. Lenovo Inc., Defendant, represented by Daniel James Stephenson -- dan.stephenson@klgates.com -- K&L Gates, Amanda G. Ray , Womble Carlyle Sandridge & Rice, PLLC, Betsy Cook Lanzen , Womble Carlyle Sandridge & Rice, PLLC, Hayden J. Silver, III , Womble Carlyle Sandridge & Rice, PLLC, Matthew N. Lowe -- matthew.love@klgates.com -- KL Gates LLP, pro hac vice, Raymond M. Bennett , Womble Carlyle Sandridge & Rice, PLLC, & Rebecca Liu -- Rebecca.liu@klgates.com -- KL Gates LLP. Superfish, Inc., defendant STAYED re Order, Defendant, represented by Rodger R. Cole -- rcole@fenwick.com -- Fenwick & West LLP, Annasara Guzzo Purcell -- apurcell@fenwick.com -- Fenwick and West LLP & Tyler Griffin Newby -- tnewby@fenwick.com -- Fenwick & West LLP. MDL 2785: West Va. State Law Claims in Antitrust Suit Dismissed --------------------------------------------------------------- In the case, IN RE: EpiPen (Epinephrine Injection, USP) Marketing, Sales Practices and Antitrust Litigation. (This Document Applies to Consumer Class Cases), MDL No 2785, Case No. 17-md-2785-DDC-TJJ (D. Kan.), Judge Daniel D. Crabtree of the U.S. District Court for the District of Kansas granted the the Mylan and the Pfizer Defendants' Joint Motion to Dismiss Class Plaintiffs' West Virginia State Law Claims. On Oct. 22, 2018, the Mylan and Pfizer Defendants jointly filed the Motion to Dismiss, asking the Court to dismiss the class Plaintiffs' claims asserted under the West Virginia Consumer Credit and Protection Act (Count VII.UU) and their antitrust and unjust enrichment claims asserted under West Virginia law (Counts III-VI & IX) because the Class Complaint no longer includes any named Plaintiff who resides in West Virginia. On Aug. 20, 2018, the Court issued a Memorandum and Order that, among other things, dismissed the class Plaintiffs' state law claims for which the Class Complaint includes no named Plaintiff from those states. As it explained, the Circuit has held that prior to class certification, the named Plaintiffs' failure to maintain a live case or controversy is fatal to the case as a whole -- that unnamed Plaintiffs might have a case or controversy is irrelevant. So, following that reasoning, the Court and others have concluded that where the only named plaintiff in a putative class action lacks standing from the outset of the case, and a class is yet to be certified, the proper course is dismissal. After the Court issued its Aug. 20, 2018, Order, the Class Complaint's only named Plaintiff residing in West Virginia voluntarily dismissed his claims without prejudice. Thus, the Class Complaint no longer includes a named Plaintiff who resides in West Virginia. As a consequence, the Defendants argue, the Court should dismiss the Plaintiffs' West Virginia state law claims for the same reasons that it already has dismissed the state law claims for which the Class Complaint includes no named Plaintiff from those states. The state court's local rules required the class Plaintiffs to respond to the Defendants' motion within 21 days, or by Nov. 12, 2018. Because that deadline fell on a federal holiday, the class Plaintiffs' deadline was extended to Nov. 13, 2018. That deadline now has expired. And, to date, the class Plaintiffs have filed no response to the Defendants' motion. Ordinarily, the Court will grant the motion without further notice. Because the class Plaintiffs never have responded to the Defendants' Motion to Dismiss Class Plaintiffs' West Virginia State Law Claims and the time for doing so has expired, and for the reasons explained in the Court's Aug. 20, 2018, Memorandum and Order, Judge Crabtree dismissed the class Plaintiffs' claims asserted under the West Virginia Consumer Credit and Protection Act (Count VII.UU) and their antitrust and unjust enrichment claims asserted under West Virginia law (Counts III-VI & IX) because the Class Complaint no longer includes any named Plaintiff who resides in West Virginia. A full-text copy of the Court's Nov. 21, 2018 Memorandum and Order is available at https://is.gd/AyYMuq from Leagle.com. All Plaintiffs, In Re, represented by Amanda Klevorn -- aklevorn@burnscharest.com -- Burns Charest LLP, Lynn Lincoln Sarko -- lsarko@kellerrohrback.com -- Keller Rohrback, LLC, Paul J. Geller -- PGeller@rgrdlaw.com -- Robbins Geller Rudman & Dowd, LLP, Rex A. Sharp -- Rex A. Sharp, PA, Ryan C. Hudson -- rhudson@midwest-law.com -- Rex A. Sharp, PA & Warren T. Burns -- wburns@burnscharest.com -- Burns Charest, LLP. Mylan N.V., Defendant, represented by Adam K. Levin -- adam.levin@hoganlovells.com -- Hogan Lovells US LLP, pro hac vice, Benjamin Frederick Holt -- benjamin.holt@hoganlovells.com -- Hogan Lovells US LLP, Brian C. Fries -- bfries@lathropgage.com -- Lathrop Gage LLP, Brian R. Richichi -- brian.richichi@hoganlovells.com -- Hogan Lovells US LLP, Carolyn Anne DeLone -- carrie.delone@hoganlovells.com -- Hogan Lovells US LLP, Chad E. Blomberg -- cblomberg@lathropgage.com -- Lathrop Gage, LLP, Christopher D. Edelman, Hogan Lovells US LLP, Daniel Thomas Graham -- dgraham@clarkhill.com -- Clark Hill, PLC, pro hac vice, David M. Foster -- david.foster@hoganlovells.com -- Hogan Lovells US LLP, pro hac vice, James Moloney -- jmaloney@lathropgage.com -- Lathrop Gage LLP, Jon Myer Talotta -- jon.talotta@hoganlovells.com -- Hogan Lovells US LLP, Justin Bernick -- justin.bernick@hoganlovells.com -- Kathryn M. Ali -- kathryn.ali@hoganlovells.com -- Hogan Lovells US LLP, pro hac vice, Sue Lin -- tony.lin@hoganlovells.com -- Hogan Lovells US LLP, Timothy Robert Herman -- therman@clarkhill.com -- Clark Hill, PLC, pro hac vice & Yuri Fuchs -- yuri.fuchs@hoganlovells.com -- Hogan Lovells US, LLP. MENLO THERAPEUTICS: Faces Savelstrov Securities Class Action ------------------------------------------------------------ Menlo Therapeutics Inc. said in its Form 8-K filing with the U.S. Securities and Exchange Commission filed on November 13, 2018, 2018, that the company has been named as defendant in a putative securities class action lawsuit entitled, Pavel Savelstrov v. Menlo Therapeutics, Inc., et al. On November 8, 2018, a putative securities class action complaint captioned Pavel Savelstrov v. Menlo Therapeutics, Inc., et al., Case No.18-CIV-06049, was filed in state court in the Superior Court of the State of California, County of San Mateo, against Menlo Therapeutics, Inc. (the "Company"), certain of its current executive officers and its directors, and certain underwriters in the Company's initial public offering. The complaint alleges violations of Sections 11, 12(a)(2) and 15 of the Securities Act of 1933 due to allegedly false and misleading statements in connection with the Company's initial public offering. Menlo Therapeutics said, "The Company believes that the lawsuit is without merit and intends to vigorously defend itself." Menlo Therapeutics Inc., a late-stage biopharmaceutical company, focuses on the development and commercialization of serlopitant for the treatment of pruritus associated with dermatologic conditions in the United States. Menlo Therapeutics Inc. was founded in 2011 and is headquartered in Redwood City, California. MERCK & CO: Snell Sues over Zostavax Vaccine -------------------------------------------- Carolyn Snell, Plaintiff, vs. MERCK & CO., INC., MERCK SHARP & DOHME CORP., the Defendants, Case No.: 2:18-cv-00749-SPC-CM (M.D. Fla., Nov. 5, 2018), alleges that Merck failed to warn the Plaintiffs and other consumers of the defective condition of Zostavax, as manufactured and/or supplied by Merck. According to the complaint, in October, 2015, Plaintiff was treated by a healthcare provider at Millenium Physician Group located in Fort Myers, Florida for Shingles. Plaintiff was diagnosed with Shingles and/or other zoster-related injuries after and despite being inoculated with the Zostavax vaccine, and suffered serious physical, emotional, and economic damages as a result of Plaintiff's injuries. As a direct and proximate result of the Zostavax vaccine, Plaintiff has and will continue suffer ongoing injuries, including but not limited to: mental and physical pain and suffering; extensive medical care and treatment for these injuries; significant medical and related expenses as a result of these injuries, including but not limited to medical losses and costs include care for hospitalization, physician care, monitoring, treatment, medications, and supplies; diminished capacity for the enjoyment of life; a diminished quality of life; increased risk of premature death, aggravation of preexisting conditions and activation of latent conditions; and other losses and damages; and will continue to suffer such losses, and damages in the future. Zostavax vaccine was defective due to inadequate warnings or instructions because Defendants knew or should have known that the product created significant risks of serious bodily harm to consumers an d they failed to adequately warn consumers and/or their healthcare providers of such risks. Defendants failed to provide adequate warnings to healthcare providers and users, including Plaintiff and Plaintiff's healthcare providers, of the increased risk of developing severe and permanent injuries, including, but not limited to, the risk of contracting shingles and suffering from zoster-related injuries associated with Zostavax, the lawsuit says. Merck developed, tested, designed, set specifications for, licensed, manufactured, prepared, compounded, assembled, packaged, processed, labeled, marketed, promoted, distributed, and/or sold the Zostavax vaccine to be administered to patients throughout the United States, including New Jersey.[BN] Attorneys for Plaintiff: Carmen A. DeGisi, Esq. Marc J. Bern & Partners LLP 101 West Elm Street, Suite 215 Conshohocken, PA 19428 Telephone: (610) 941-9880 Facsimile: (610) 941-1088 E-mail: cdegisi@bernllp.com MGT CAPITAL: Faces 2 Class Suits Alleging Pump-and-Dump Scheme -------------------------------------------------------------- MGT Capital Investments, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 19, 2018, for the quarterly period ended September 30, 2018, that the company faces two class action lawsuits related to a pump-and-dump scheme to artificially inflate the company's stock price. In September 2018 and October 2018, various shareholders of the Company filed two putative class action lawsuits against the Company, its former CEO and certain of its individual officers and shareholders, alleging violations of federal securities laws and seeking damages. The lawsuits followed, and referenced allegations made against the Company's former CEO and others in a complaint filed by the SEC on September 7, 2018. The first putative class action lawsuit was filed on September 28, 2018, in the United States District Court for the District of New Jersey, and alleges generally that defendants were engaged in a pump-and-dump scheme to artificially inflate MGT's stock price and that, as a result, defendants' statements about MGT's business and prospects were materially false and misleading and/or lacked a reasonable basis at all relevant times. The second action was filed on October 9, 2018, in the United States District Court for the Southern District of New York and makes similar allegations. The Company intends to defend against the actions vigorously. MGT Capital Investments, Inc. engages in bitcoin mining operations in the Wenatchee Valley area of central Washington. The company was founded in 1979 and is headquartered in Durham, North Carolina. MIDLAND CREDIT: Padron Sues over Debt Collections Practices ----------------------------------------------------------- LIZETH PADRON, individually and on behalf of all others similarly situated, the Plaintiff, vs. MIDLAND CREDIT MANAGEMENT, INC., MIDLAND FUNDING, LLC and JOHN DOES 1-25, the Defendants, Case No. 4:18-cv-04407 (S.D. Tex., Nov. 20, 2018), seeks to recover damages and declaratory relief under the Fair Debt Collections Practices Act. According to the complaint, Midland Funding is a company that uses the mail, telephone, and facsimile and regularly engages in business the principal purpose of which is to attempt to collect debts alleged to be due another. Some time prior to November 30, 2017, an obligation was allegedly incurred to Wells Fargo Bank, N.A. The Wells Fargo Bank obligation arose out of a Wells Fargo credit card involving the use of credit funds for transactions in which money, property, insurance or services were primarily for personal, family or household purposes. Due to her financial constraints, the Plaintiff could not pay the alleged debt, and it went into default. Sometime thereafter, Defendant Midland Funding purportedly purchased the alleged debt. The Defendant, a subsequent owner of the Wells Fargo debt, contracted with the Defendant MCM to collect the alleged debt. MCM and Defendant Midland Funding collect and attempt to collect debts incurred or alleged to have been incurred for personal, family or household purposes on behalf of creditors using the United States Postal Services, telephone and internet. On or about November 30, 2017, Defendant MCM sent Plaintiff a collection letter regarding the alleged debt owed to Defendant Midland Funding. The very bottom of the Collection Letter states in part: "The law limits how long you can be sued on a debt. Due to the age of this debt, we will not sue you for it." The alleged debt is time-barred, meaning that no party can legally sue to collect this debt. The Letter implies that Defendant MCM has chosen not to sue ("we will not sue you"), instead of the true fact that neither Defendant MCM, nor Defendant Midland Funding, nor any subsequent creditor/collector can file a lawsuit. In fact, the Letter is patently false as Defendant MCM is merely the debt collector in this instance and does not possess legal standing to sue the consumer on the debt. Only the creditor or entity who owns the debt has the legal right to sue -- a right which has been time-barred, and Defendant MCM fails to advise Plaintiff of this, only deceptively advising that it is choosing not to sue. The statement contained in Defendant MCM's letter is materially false and deceptive to the unsophisticated consumer, who would believe that Defendant MCM or Midland Funding or a subsequent creditor has the option to change its mind should he/she not pay the alleged debt, the lawsuit says.[BN] Counsel for Lizeth Padron: Jonathan Kandelshein, Esq. 18208 Preston Rd, Suite D-9 No. 256 Dallas, TX 75252 Telephone: 469 677-7863 Facsimile: 972 380-8118 E-mail: jonathan.kandelshein@gmail.com MITSUBISHI CHEMICAL: Court Dismisses FLSA Claims in Cress Suit -------------------------------------------------------------- The United States District Court for the Eastern District of California issued an Order dismissing the FLSA Claims in the case captioned HENRY CRESS and JEANINE ROBERTS as individuals and on behalf of all others similarly situated, Plaintiffs, v. MITSUBISHI CHEMICAL CARBON FIBER AND COMPOSITES, INC., a California Corporation; and DOES 1 to 100, inclusive, Defendant. Case No. 2:18-CV-01854-KJM-EFB. (E.D. Cal.). The Plaintiffs filed a Class Action against Defendant in the Superior Court of California for the County of Sacramento, Case No. 34-2017-00222101 on November 13, 2017. The Parties have met and conferred regarding these matters and agreed that the Plaintiffs' FLSA claims will be dismissed without prejudice, that supplemental jurisdiction of the remaining state law claims should be denied pursuant to 28 U.S.C. Section 1367(c)(2)-(3) and Rodriguez v. Emeritus Corp., 2018 U.S. Dist. LEXIS 151295 (E.D. Cal. 2018), and that the Court should remand the lawsuit back to the Superior Court of California for the County of Sacramento, Case No. 34-2017-00222101. Accordingly, the Plaintiffs' FLSA claims are dismissed without prejudice. The Court will decline supplemental jurisdiction of the Plaintiffs' remaining state law claims. The case is remanded to the Superior Court of California for the County of Sacramento, Case No. 34-2017-00222101. A full-text copy of the District Court's November 19, 2018 Order is available at https://tinyurl.com/y7l8lmln from Leagle.com. Henry Cress & Jeanine Roberts, Plaintiffs, represented by Galen T. Shimoda -- attorney@shimodalaw.com -- Shimoda Law Corp. & Justin Paul Rodriguez -- jrodriguez@shimodalaw.com -- Shimoda Law Corp. Mitsubishi Chemical Carbon Fiber and Composites, Inc., Defendant, represented by Julie A. Totten -- jatotten@orrick.com -- Orrick, Herrington & Sutcliffe LLP. MOVIEPASS INC: Tabas et al. Allege Fraud and Breach of Contract --------------------------------------------------------------- JACKIE TABAS AND KATHERINE ROSENBERG-WOHL, ON BEHALF OF THEMSLEVES AND ALL OTHERS SIMILARLY SITUATED, the Plaintiff, vs. MOVIEPASS, INC., HELIOS AND MATHESON ANALYTICS INC., TED FARNSWORTH, STUART BENSON, MITCH LOWE, AND DOES 1-10, the Defendants, Case 3:18-cv-07087 (N.D. Cal., Nov. 21, 2018), alleges that Moviepass breached Plaintiffs' contracts by violating the terms of good faith and fair dealing implied by fact and law of contracts. According to the complaint, Moviepass is a company, as its name implies, that sells consumers subscriptions to go out to see movies in movie theaters. For a subscription, a consumer pays Moviepass a monthly fee, for which she gains access to the movies in showing in movie theaters, nationwide. Using an app that the consumer downloads to his or her phone, the consumer identifies the movies playing in the area, selects a movie of choice at a showtime of choice, goes to the theater and uses the Moviepass card as a debit card, transferring payment for the movie selected from Moviepass to the theater. From its start in 2011, Moviepass has struggled to find its proper model, both in terms of what it offers and its price. As it grew in size, Moviepass tried several pricing structures, from 2-3 films/month, to "unlimited" plans with pricing based on market size. In December 2016, the service had 20,000 subscribers. On August 15, 2017, a majority interest in Moviepass was purchased by the data analytics firm Helios and Matheson Analytics Inc. Moviepass had a growing customer database. HMNY had money. The prize sought by HMNY's investment was the moviegoing habit data of Moviepass customers. HMNY wanted to sell this data. HMNY subsequently doubled down on its bet, increasing its ownership of Moviepass to 91.8% and initiating a merger of Moviepass into HMNY. The cash infusion allowed Moviepass growth to explode. Following HMNY's investment in August 2017, Moviepass membership shot up from the 20,000 subscribers of December 2016 to 400,000 in September 2017. The number was 600,000 in October 2017, 1 million in December 2017, 2 million in February 2018, and 3 million in June 2018. To fund this growth, HMNY has mortgaged its future. While Moviepass membership continues to increase, the company has struggled to find a model that allows it to be profitable. Moviepass survives on HMNY cash, and HMNY has increasingly bet its company on the ultimate profitability of Moviepass data. The net income of HMNY in 2017 was $151 million. In April 2018 HMNY sold $150 million in stock. A considerable portion of the proceeds went to fund Moviepass. In May 2018, HMNY lost $40 million. In July, HMNY filed to raise another $1.2 billion to keep Moviepass alive. In August, HMNY reported a loss of $100 million in the second quarter. Simultaneously with its fraud and breach of contract, HMNY made it virtually impossible for consumers to resolve any concerns. HMNY itself was nonexistent on Moviepass websites. HMNY directed Moviepass to offer customer service in name, but in fact responses to email inquiries would consist of boilerplate language. Moviepass, at the direction of HMNY, continually changed its language and removed the prior versions of terms and conditions from the Moviepass website, making it impossible for consumers to know the terms that actually applied when they signed up. Originally not offering arbitration as a way of resolving disputes, once it did so, even if a consumer wished to arbitrate a dispute, HMNY made sure that it was never clear just where a consumer was to submit this request and what the consumer was supposed to do to commence arbitration. And when consumers did submit a request to arbitrate with Moviepass, HMNY made sure that Moviepass met those requests with silence. As a result of Moviepass' conduct, the Plaintiffs have paid for a product they did not seek out, did not agree to, and have never been given adequate opportunity to cancel, the lawsuit says.[BN] Attorneys for Plaintiff: David M. Rosenberg-WOHL, Esq. HERSHENSON ROSENBERG-WOHL, 315 Montgomery St., 8 th Fl. San Francisco, CA 94104 Telephone: (415) 829-4330 E-mail: david@hrw-law.com MUSEUM OF SEX: Website not Accessible to Blind, Figueroa Says ------------------------------------------------------------- JOSE FIGUEROA, on behalf of himself and all others similarly situated, the Plaintiffs, vs. THE MUSEUM OF SEX LLC, the Defendant, Case No. 1:18-cv-10841-JGK (S.D.N.Y., Nov. 19, 2018), alleges that Defendant's failed to design, construct, maintain, and operate its website to be fully accessible to and independently usable by Plaintiff and other blind or visually-impaired people. Defendant's denial of full and equal access to its website, and therefore denial of its goods and services offered thereby, is a violation of Plaintiff's rights under the Americans with Disabilities Act ("ADA"). The Plaintiff is a visually-impaired and legally blind person who requires screen-reading software to read website content using his computer. Plaintiff uses the terms "blind" or "visually-impaired" to refer to all people with visual impairments who meet the legal definition of blindness in that they have a visual acuity with correction of less than or equal to 20 x 200. Some blind people who meet this definition have limited vision. Others have no vision. Based on a 2010 U.S. Census Bureau report, approximately 8.1 million people in the United States are visually impaired, including 2.0 million who are blind, and according to the American Foundation for the Blind's 2015 report, approximately 400,000 visually impaired persons live in the State of New York. Because Defendant's website, www.museumofsex.com, is not equally accessible to blind and visually-impaired consumers, it violates the ADA, the lawsuit says.[BN] Attorneys for Plaintiff: Joseph H. Mizrahi, Esq. COHEN & MIZRAHI LLP 300 Cadman Plaza West, 12 Fl. Brooklyn, N.Y. 11201 Telephone: (929) 575-4175 Facsimile: (929) 575-4195 E-mail: Joseph@cml.legal - and - Jeffrey M. Gottlieb, Esq. Dana L. Gottlieb, Esq. GOTTLIEB & ASSOCIATES 150 East 18th Street, Suite PHR New York, N.Y. 10003-2461 Telephone: (212) 228-9795 E-mail: nyjg@aol.com danalgottlieb@aol.com MY SIZE: Suit Against Lightcom Dismissed ---------------------------------------- My Size, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 19, 2018, for the quarterly period ended September 30, 2018, that with respect to the litigation with Lightcom (Israel) Ltd., on October 16, 2018 the appellants in two cases pending before the Israeli Supreme Court withdrew their appeals without prejudice, following the Supreme Court's recommendation. The Supreme Court commented that it appears that the lower courts' judgments in the cases before him, which accepted arguments similar to the Company's arguments in its motion to dismiss, appear to be correct. The Supreme Court recommended that to avoid additional future doubts, the legislator should attend to the matter of the proper choice of law applicable to foreign companies with dual listings. Following the dismissal of the Supreme Court pending cases, at a hearing held on November 19, 2018, the court ordered dismissal of the class action with prejudice. No order for costs was made. My Size, Inc., a technology company, engages in the development of applications to take measurements of various items through a smartphone in Israel. It offers MySizeID, an application, which enables consumers to create a secure online profile of their personal measurements to get the right fit; and SizeUp app, which allows users to utilize their smartphone as a tape measurer. The company was formerly known as Knowledgetree Ventures, Inc. and changed its name to My Size, Inc. in January 2014. My Size, Inc. was founded in 1999 and is based in Airport City, Israel. MYLAN NV: Bid to Dismiss 2nd Amended N.Y. Securities Suit Pending ----------------------------------------------------------------- Mylan N.V. 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 defendants' motion to dismiss the second amended complaint in federal securities litigation remains pending. Purported class action complaints were filed in October 2016 against Mylan N.V., Mylan Inc. and certain of their current and former directors and officers (collectively, for purposes of this paragraph, the "defendants") in the United States District Court for the Southern District of New York on behalf of certain purchasers of securities of Mylan N.V. and/or Mylan Inc. on the NASDAQ. The complaints alleged that defendants made false or misleading statements and omissions of purportedly material fact, in violation of federal securities laws, in connection with disclosures relating to Mylan N.V. and Mylan Inc.'s classification of their EpiPen(R) Auto-Injector as a non-innovator drug for purposes of the Medicaid Drug Rebate Program (MDRP). The complaints sought damages, as well as the plaintiffs' fees and costs. On March 20, 2017, after the actions were consolidated, a consolidated amended complaint was filed, alleging substantially similar claims and seeking substantially similar relief, but adding allegations that defendants made false or misleading statements and omissions of purportedly material fact in connection with allegedly anticompetitive conduct with respect to EpiPen(R) Auto-Injector and certain generic drugs, and alleging violations of both federal securities laws (on behalf of a purported class of certain purchasers of securities of Mylan N.V. and/or Mylan Inc. on the NASDAQ) and Israeli securities laws (on behalf of a purported class of certain purchasers of securities of Mylan N.V. on the Tel Aviv Stock Exchange). On March 28, 2018, defendants' motion to dismiss the consolidated amended complaint was granted in part (including the dismissal of claims arising under Israeli securities laws) and denied in part. On July 6, 2018, the Plaintiffs filed a second amended complaint, including certain current and former directors and officers and additional allegations in connection with purportedly anticompetitive conduct with respect to EpiPen(R) Auto-Injector and certain generic drugs. On August 6, 2018, defendants filed a motion to dismiss the second amended complaint, which is currently pending. Mylan said, "We believe that the claims in this lawsuit are without merit and intend to defend against them vigorously." No further updates were provided in the Company's SEC report. Mylan N.V., together with its subsidiaries, develops, licenses, manufactures, markets, and distributes generic, brand name, and over-the-counter (OTC) products worldwide. The company operates through three segments: North America, Europe, and Rest of World. It offers pharmaceutical products in tablet, capsule, injectable, transdermal patch, gel, nebulized, and cream or ointment forms. The company was formerly known as New Moon B.V. Mylan N.V. was founded in 1961 and is headquartered in Canonsburg, Pennsylvania. MYLAN NV: Still Defends Antitrust Lawsuits Over Various Products ---------------------------------------------------------------- Mylan N.V. 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 the company continues to defend itself from civil lawsuits over antitrust matters related to various products. The Company, along with other manufacturers, has been named as a defendant in putative class action lawsuits filed in 2016 and 2017 generally alleging anticompetitive conduct with respect to doxycycline hyclate (regular and delayed release), digoxin, divalproex, levothyroxine, propranolol, clomipramine, albuterol, benazepril and amitriptyline products (as well as a number of non-Mylan products). The lawsuits have been filed by putative classes of direct purchasers, indirect purchasers and indirect resellers and allege harm under federal and state antitrust laws, state consumer protection laws and unjust enrichment. These lawsuits have been consolidated in an MDL proceeding in the U.S. District Court for the Eastern District of Pennsylvania (EDPA). The Court has sequenced these lawsuits into three separate product groups. Defendants filed motions to dismiss complaints in the first product group. On October 16, 2018, the Court denied the motions with respect to the federal law claims and a decision on the state law claims remains pending. On January 22, 2018, three direct purchaser retailers filed a complaint against Mylan and other manufacturers asserting similar allegations with respect to the products identified above, as well as doxycycline monohydrate, glipizide-metformin, and verapamil (as well as other non-Mylan products). Subsequently, putative classes of direct purchasers, indirect purchasers, and indirect resellers filed complaints against Mylan and other manufacturers alleging harm under federal and state antitrust laws, state consumer protection laws and unjust enrichment and asserting similar allegations with respect to a number of products, including Mylan’s doxycycline products, glipizide-metformin, and verapamil (as well as other non-Mylan products). These complaints also name Mylan's President as a defendant and include allegations against him with respect to doxycycline hyclate delayed release. On August 3, 2018, a complaint was filed by a plaintiff claiming to be a direct and indirect purchaser against Mylan and other defendants alleging anti-competitive conduct with respect to certain of the products identified above as well as pravastatin. On September 25, 2018, a complaint was filed by plaintiffs on behalf of putative classes of direct and indirect purchasers against Mylan and other defendants alleging anti-competitive conduct with respect to generic drugs. Mylan N.V. said, "The Company believes that the claims in these lawsuits are without merit and intends to defend against them vigorously." Mylan N.V., together with its subsidiaries, develops, licenses, manufactures, markets, and distributes generic, brand name, and over-the-counter (OTC) products worldwide. The company operates through three segments: North America, Europe, and Rest of World. It offers pharmaceutical products in tablet, capsule, injectable, transdermal patch, gel, nebulized, and cream or ointment forms. The company was formerly known as New Moon B.V. Mylan N.V. was founded in 1961 and is headquartered in Canonsburg, Pennsylvania. NAMASTE TECHNOLOGIES: Sued over Misleading Financial Report ----------------------------------------------------------- WILLARD WORKMAN, Individually and On Behalf of All Others Similarly Situated, the Plaintiff, vs. NAMASTE TECHNOLOGIES INC., SEAN DOLLINGER, PHILIP VAN DEN BERG and KENNETH NGO, the Defendants, Case No. 1:18-cv-10830 (S.D.N.Y., Nov. 19, 2018), seeks to recover compensable damages caused by Defendants' violations of the federal securities laws under the Securities Exchange Act of 1934. According to the complaint, the case is a class action on behalf of persons or entities who purchased or otherwise acquired publicly traded Namaste securities between November 29, 2017 and October 4, 2018, inclusive. The company retails vaporizers and smoking accessories through e-commerce sites in 26 countries. It is also involved in the product design and manufacturing activities; and distribution of medical cannabis products. On November 28, 2017, Namaste announced that it had signed a stock purchase agreement to sell its wholly owned U.S. subsidiary, Dollinger Enterprises US Inc. Specifically, the Defendants made false and/or misleading statements and/or failed to disclose that: (i) Namaste failed to disclose that it had sold its wholly-owned U.S. subsidiary to Namaste executives; (ii) consequently, Namaste did not sell its U.S. subsidiary in an arm's length transaction; and (iii) as a result, Namaste's public statements were materially false and misleading at all relevant times. On October 4, 2018, Citron Research published an article entitled "Namaste: Citron has exposed complete Fraud that underpins the 'Business' of Namaste," stating that the Company had entered into an "undisclosed related party" transaction. The Citron report alleged, among other issues, that Namaste's Chief Executive Officer had falsely "promised investors as Nasdaq listing" and had falsely represented that Namaste had divested the Company of its U.S. assets in a sale to an "arm's length" purchaser, when the purchaser was in reality a Namaste executive. Following publication of the Citron report, Namaste's stock price fell $0.19 per share, or roughly 10.5% over the next two trading days, to close at $1.62 per share on October 5, 2018. As a result of Defendants' wrongful acts and omissions, and the precipitous decline in the market value of the Company’s securities, Plaintiff and other Class members have suffered significant losses and damages, the lawsuit says.[BN] Attorneys for Plaintiff: Jeremy A. Lieberman, Esq. J. Alexander Hood II, Esq. Jonathan D. Lindenfeld, Esq. Patrick V. Dahlstrom, Esq. POMERANTZ LLP 600 Third Avenue, 20 th Floor New York, NY 10016 Telephone: (212) 661-1100 Facsimile: (212) 661-8665 E-mail: jalieberman@pomlaw.com ahood@pomlaw.com jlindenfeld@pomlaw.com pdahlstrom@pomlaw.com - and - Peretz Bronstein, Esq. BRONSTEIN, GEWIRTZ & GROSSMAN, LLC 60 East 42 nd Street, Suite 4600 New York, NY 10165 Telephone: (212) 697-6484 Facsimile (212) 697-7296 E-mail: peretz@bgandg.com NATIONAL GEOGRAPHIC: Faces Nixon ADA Class Suit in NY ----------------------------------------------------- A class action lawsuit has been filed against National Geographic Partners, LLC. The case is styled as Donald Nixon on behalf of himself and all others similarly situated, Plaintiff v. National Geographic Partners, LLC, Defendant, Case No. 1:18-cv-06770 (E.D. N.Y., Nov. 28, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. National Geographic Partners operates television channels. The Company engages in the business of magazine and book publishing, digital and social media platforms, archival sales, e-commerce businesses, and studios. National Geographic Partners serves customers worldwide.[BN] The Plaintiff is represented by: Jonathan Shalom, Esq. 124-04 Metropolitan Avenue Kew Gardens, NY 11374 Phone: (718) 971-9474 Email: jshalom@jonathanshalomlaw.com NATIONAL VISION: Amended Complaint Filed in Suit vs. FirstSight --------------------------------------------------------------- National Vision Holdings, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 13, 2018, for the quarterly period ended September 30, 2018, that its subsidiary FirstSight Vision Services, Inc., continues to defend itself in a class action suit filed in the U.S. District Court for the Southern District of California The Company's FirstSight subsidiary is a defendant in a purported class action in the U.S. District Court for the Southern District of California that alleges that FirstSight participated in arrangements that caused the illegal delivery of eye examinations and that FirstSight thereby violated, among other laws, the corporate practice of optometry and the unfair competition and false advertising laws of California. The lawsuit was filed in 2013 and FirstSight was added as a defendant in 2016. In March 2017, the court granted the motion to dismiss previously filed by FirstSight and dismissed the complaint with prejudice. The plaintiffs filed an appeal to the U.S. Court of Appeals for the Ninth Circuit in April 2017. In July 2018, the U.S. Court of Appeals for the Ninth Circuit vacated in part, and reversed in part, the district court's dismissal and remanded for further proceedings. In October 2018, the plaintiffs filed a second amended complaint with the district court. National Vision said, "The Company believes that the claims are without merit and intends to continue to defend the litigation vigorously." National Vision Holdings, Inc., through its subsidiaries, operates as an optical retailer primarily in the United States. The company operates in two segments, Owned & Host and Legacy. It offers eyeglasses and contact lenses under the America's Best, Eyeglass World, Walmart Vision Center, Vista Optical Fred Meyer, and Vista Optical Military brand stores, as well as provides optometric services. National Vision Holdings, Inc. was founded in 1990 and is based in Duluth, Georgia. NATIONWIDE EXPRESS: Omar et al Seek Overtime Pay ------------------------------------------------ ABDULLAHI WARFA, and OMAR OMAR, on behalf of themselves and all others similarly situated, and on behalf of the Minnesota Rule 23 Class, the Plaintiffs, vs. NATIONWIDE EXPRESS, LLC, and AMAZON LOGISTICS, INC., the Defendants, Case 0:18-cv-03103, (D. Minn., Nov. 5, 2018), seeks unpaid overtime compensation for hours worked over 40 in a workweek. According to the complaint, the Defendants have engaged in a pattern of violating the Fair Labor Standards Act and the Minnesota Fair Labor Standards Act, by failing to pay delivery drivers overtime compensation as required by law. The Defendants knowingly, willfully, or in reckless disregard of the law, maintained an illegal practice of failing to pay Plaintiffs and those similarly situated proper overtime compensation for all hours worked over 40, the lawsuit says. Nationwide Express is a courier services company headquartered in Minnesota. According to its website, Amazon Logistics, Inc. is Amazon's franchise model for a courier delivery service.[BN] Attorneys for Plaintiffs: Michele R. Fisher, Esq. Neil D. Pederson, Esq. NICHOLS KASTER, PLLP 4600 IDS Center, 80 S. 8th Street Minneapolis, MN 55402 Telephone: (612) 256-3200 E-mail: fisher@nka.com npederson@nka.com - and - Gregory Walz, Esq. WALZ LAW OFFICE 1411 West Saint Germain, No. 206 P.O. Box 1794 Saint Cloud, MN 56302 Telephone: (320) 251-5000 E-mail: greg@walzlaw.com NEW JERSEY: Wahab Appeals D.N.J. Ruling to Third Circuit -------------------------------------------------------- Plaintiff Atiya Wahab filed an appeal from a court ruling in her lawsuit titled Atiya Wahab v. State of New Jersey, et al., Case No. 3-18-cv-06067, in the U.S. District Court for the District of New Jersey. The nature of suit is stated as other civil rights. The appellate case is captioned as Atiya Wahab v. State of New Jersey, et al., Case No. 18-3526, in the United States Court of Appeals for the Third Circuit.[BN] Plaintiff-Appellant ATIYA WAHAB, on behalf of herself and others similarly situated, is represented by: Donald F. Burke, Esq. LAW OFFICE OF DONALD F. BURKE 45 Gale Road Brick, NJ 08723 Telephone: (732) 966-4922 E-mail: donaldburkeesq@gmail.com Defendants-Appellees STATE OF NEW JERSEY; NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION; GURBIR S. GREWAL, Attorney General of the State of New Jersey; and PHILIP DUNTON MURPHY, Governor of the State of New Jersey, are represented by: Nicole E. Adams, Esq. Rachel S. Frey, Esq. OFFICE OF ATTORNEY GENERAL OF NEW JERSEY 25 Market Street Richard J. Hughes Justice Complex Trenton, NJ 08625 Telephone: (609) 633-1971 E-mail: Nicole.adams@law.njoag.gov NFL: Court Won't Review Ruling in New England Patriot Fans' Suit ---------------------------------------------------------------- The Appeals Court of Massachusetts issued an Order affirming the judgment of the District Court denying Plaintiffs’ Motion for Postjudgemnt Relief in the case captioned NEW ENGLAND PATRIOTS FANS, vs. NATIONAL FOOTBALL LEAGUE & others. No. 18-P-269. (Mass. App.). The plaintiffs purported to bring a class action seeking damages and injunctive relief against the defendants concerning forfeiture of the New England Patriots's first round draft choice as punishment for an incident commonly referred to as Deflategate. After their case was dismissed, the plaintiffs sought post-judgment relief, which was denied. The Court reviews the order denying the motion for reconsideration for abuse of discretion. A judge's discretionary decision constitutes an abuse of discretion where the Court conclude the judge made 'a clear error of judgment in weighing' the factors relevant to the decision such that the decision falls outside the range of reasonable alternatives. A notice of appeal must be filed within thirty days of the date of the entry of the judgment appealed from. In this case, the plaintiffs filed the first appeal on April 12, 2017, forty-four days after the February 27, 2017, entry of judgment. The plaintiffs argue that their first appeal nonetheless is timely because the postjudgment motion for findings tolled the deadline to file the first appeal. However, certain postjudgment motions including motions for findings, as was filed here only toll the appeal period when the motion is made within ten days of the entry of judgment. In this case, the postjudgment motion for findings was not made within ten days of the entry of judgment; the plaintiffs served the postjudgment motion for findings on March 10, 2017, eleven days after the entry of judgment on February 27, 2017. On appeal, the plaintiffs do not dispute that their postjudgment motion for findings was filed more than ten days after entry of judgment. Instead, the plaintiffs argue that the judge erred in denying the motion for reconsideration because Mass. R. Civ. P. 6 (d), 365 Mass. 747 (1974), commonly known as the mailbox rule, provided them with three additional days to serve the postjudgment motion for findings. Specifically, the plaintiffs assert that they did not receive the February 27, 2017, judgment by mail until March 2, 2017; thus, their March 10, 2017, postjudgment motion for findings was within the ten-day deadline. The Court disagrees. As the judge explained in a well-reasoned memorandum, the three-day extension due to service by mail does not apply to the plaintiffs' deadline for filing their postjudgment motion for findings. Rule 6 (d) provides, in pertinent part: Whenever a party is required to do some act within a prescribed period after the service of a notice or other papers upon him and the notice or paper is served upon him by mail, 3 days shall be added to the prescribed period. Here, however, the plaintiffs were not responding to a notice or paper served upon them by mail; thus, rule 6 (d) by its terms does not apply. Accordingly, the Court concludes that the judge did not abuse his discretion in denying the plaintiffs' motion for reconsideration. A full-text copy of the Mass. App.'s November 19, 2018 Memorandum and Order is available at https://tinyurl.com/ycn74hfd from Leagle.com. Seth Carey, Esquire , for New England Patriots Fans, Plaintiff/Appellant. John P. Bueker - John.Bueker@ropesgray.com - Esquire , John D. Donovan, Jr. -John.Donovan@ropesgray.com - Esquire , for Roger Goodell and National Football League, Defendants/Appellees. Daniel L. Goldberg - daniel.goldberg@morganlewis.com - Esquire , Charles L. Solomont- carl.solomont@morganlewis.com - Esquire , Emma Diamond Hall - emma.hall@morganlewis.com - Esquire , for Robert Kraft, Defendant/Appellee. NIRANJAN MITTAL: Rhoden Seeks Wages for Nurses & Technicians ------------------------------------------------------------ SHAKEYA RHODEN, and and other similarly situated current and former nurses and technicians, the Plaintiff, vs. NIRANJAN MITTAL, NIRANJAN K. MITTAL, PHYSICIAN, PLLC, the Defendant, Case 1:18-cv-06613 (E.D.N.Y., Nov. 19, 2018), seeks to recover unpaid overtime compensation and earned wages under the Fair Labor Standards Act and New York Labor Law. According to the complaint, the Plaintiff and the collective class are current and former nurses and technicians, who have worked at Defendants. As part of its regular business practice, the Defendants have intentionally, willfully and repeatedly harmed Plaintiff and the FLSA Collective by engaging in a pattern and/or policy of violating the FLSA. The policy includes, failing to pay employees the applicable overtime rate for all time worked in excess of 40 hours per week; failing to keep accurate records of hours worked by employees as required by the FLSA and NYLL, the lawsuit says.[BN] Attorneys for Plaintiff: THE LAW OFFICE OF JASON TENENBAUM P.C. 595 Stewart Avenue, Suite 400 Garden City, New York 11750 Telephone: (516) 750-0595 NLFIC: Failed to Reimburse Medicare Payments, MSP Recovery Says --------------------------------------------------------------- MSP RECOVERY CLAIMS, SERIES LLC, a Delaware entity, and SERIES 16-08-483, a Designated Series of MSP Recovery Claims, Series LLC, a Delaware series limited liability company, the Plaintiffs, v. NATIONAL LIABILITY AND FIRE INSURANCE COMPANY, a Connecticut entity, the Defendant, Case 3:18-cv-01827 (D. Conn., Nov. 6, 2018), is a lawsuit over Defendant's systematic and uniform failure to reimburse conditional Medicare payments under the Medicare Secondary Payer. According to the complaint, Defendant has failed to fulfill its statutory duties under the MSP Law as a "no-fault" insurer. Specifically, Defendant has repeatedly failed to provide primary payment, or reimburse secondary payments made by Plaintiffs' assignors and Class Members, on behalf of Medicare beneficiaries enrolled in Part C of the Medicare Act (the "Enrollees") for medical expenses resulting from injuries sustained in automobile accidents (the "accident-related medical expenses"). The Enrollees were enrolled in Medicare Advantage health plans offered by Plaintiffs' assignors and Class Members, i.e., Medicare Advantage Organizations, which suffered an injury-in-fact from Defendant's failure to reimburse, and accordingly, have standing to sue under 42 U.S.C. section 1395y(b)(3)(A). The Plaintiffs' assignors and the putative Class Members are MAOs that provided Medicare benefits to the Enrollees. These Enrollees suffered injuries related to an accident and Plaintiffs' assignors and the putative Class Members paid for medical items and/or services required by the Enrollees as a result of the accident. Because the Plaintiffs' assignors and Class Members' Enrollees were also covered by no-fault policies issued by the Defendant, the Defendant is a primary payer under the MSP Law and must reimburse Plaintiffs and the putative Class Members for their payment of accident-related medical expenses, the lawsuit says.[BN] Attorneys for Plaintiffs: Daniel S. Jo, Esq. RAO & JO, LLC 115 Technology Drive, Suite A303 Trumbull, Connecticut 06611 Telephone: 203-880-5999 E-mail: djo@raojo.com - and - John Boundas, Esq. Brian Abramson, Esq. Margot Trevino, Esq. Walt Cubberly, Esq. WILLIAMS KHERKHER HART BOUNDAS, LLP 8441 Gulf Freeway, Suite 600 Houston, TX 77017 Telephone: 713 230-2200 E-mail: jboundas@williamskherkher.com babramson@williamskherkher.com mtrevino@williamskherkher.com wcubberly@williamskherkher.com NOVUS THERAPEUTICS: Wu v. Tokai Class Suit Underway --------------------------------------------------- Novus Therapeutics, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 13, 2018, for the quarterly period ended September 30, 2018, that the company continues to defend a putative class action suit entitled, Wu v. Tokai Pharmaceuticals, Inc., et al., 16-3725 BLS. On December 5, 2016, a putative securities class action was filed in the Massachusetts State Court, entitled Wu v. Tokai Pharmaceuticals, Inc., et al., 16-3725 BLS ("Wu Action"). The plaintiff seeks to represent a class of purchasers of Tokai common stock in or traceable to Tokai's IPO. On December 19, 2016, defendants removed the Wu Action to the U.S. District Court for the District of Massachusetts, where it was captioned Wu v. Tokai Pharmaceuticals, Inc., et al., 16-cv-12550. On January 6, 2017, plaintiff filed a motion to remand the Wu Action to Massachusetts State Court. On September 28, 2017, the court stayed the case pending a decision by the United States Supreme Court in Cyan, Inc. v. Beaver County Employees Retirement Fund, S. Ct. Case No. 15-1439. On March 20, 2018, the United States Supreme Court ruled in Cyan that state courts have subject matter jurisdiction over covered class actions alleging only Securities Act claims and that such actions are not removable to federal court. On March 22, 2018, plaintiff moved for leave to submit the Cyan decision in support of plaintiff's remand motion. On March 27, 2018 the Wu Action was remanded to the Massachusetts State Court. On May 3, 2018, plaintiff filed an amended class action complaint. Following the refiling of the Jackie888, Inc. v. Tokai Pharmaceuticals, Inc., et al., No. CGC-16-553796 in Massachusetts State Court, on June 28, 2018, plaintiff Wu moved to consolidate the Jackie888 Action with the Wu Action. On June 29, 2018, plaintiffs Jackie888 and Wu filed a consolidated complaint. On July 6, 2018, the Jackie888 Action was consolidated with the Wu Action. Defendants moved to dismiss the consolidated complaint on August 15, 2018, plaintiffs filed their opposition thereto on September 28, 2018, and defendants filed their reply in support of their motion on October 19, 2018. In addition, Defendants moved to strike the class allegations in the consolidated complaint on August 15, 2018, plaintiffs filed their opposition thereto on September 11, 2018, and defendants filed their reply in support of their motion on September 21, 2018. The court set a hearing for November 15, 2018 on defendants' motion to dismiss and motion to strike. Novus Therapeutics, Inc., a pharmaceutical company, focuses on developing products for patients with disorders of ear, nose, and throat. Novus Therapeutics, Inc. is headquartered in Irvine, California. OCWEN FINANCIAL: Agreement in Principle Entered in McWhorter Suit ----------------------------------------------------------------- Ocwen Financial Corporation 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 the company has entered into an agreement in principle to resolve McWhorter et al. v. Ocwen Loan Servicing, LLC, 2:15-cv-01831 (N.D. Ala.). In 2014, plaintiffs filed a putative class action against Ocwen in the United States District Court for the Northern District of Alabama, alleging that Ocwen violated the Fair Debt Collection Practices Act (FDCPA) by charging borrowers a convenience fee for making certain loan payments. The case is entitled, McWhorter et al. v. Ocwen Loan Servicing, LLC, 2:15-cv-01831 (N.D. Ala.). The plaintiffs are seeking statutory damages under the FDCPA, compensatory damages and injunctive relief. The presiding court previously ruled on Ocwen's motions to dismiss, and Ocwen answered the operative complaint. Ocwen subsequently entered into an agreement in principle to resolve this matter, and the presiding court is considering motions to approve the settlement. Ocwen Financial said, "While Ocwen believes that it has sound legal and factual defenses, Ocwen has agreed to this settlement in principle in order to avoid the uncertain outcome of litigation and the additional expense and demands on the time of its senior management that such litigation would involve. There can be no assurance that the court will finally approve the settlement. In the event the settlement is not finally approved, the litigation would continue, and we would vigorously defend the allegations made against Ocwen. Our accrual with respect to this matter is included in the $53.4 million legal and regulatory accrual referenced above. We cannot currently estimate the amount, if any, of reasonably possible loss above the amount accrued." Ocwen Financial Corporation, a financial services holding company, originates and services loans in the United States, the United States Virgin Islands, India, and Philippines. Ocwen Financial Corporation was founded in 1988 and is headquartered in West Palm Beach, Florida. OCWEN FINANCIAL: Appeal in Carvelli Class Suit Pending ------------------------------------------------------ Ocwen Financial Corporation 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 plaintiffs' notice of appeal in the case, Carvelli v. Ocwen Financial Corporation et al., is pending Several putative securities fraud class action lawsuits were filed against Ocwen and certain of its officers that contain allegations in connection with Ocwen's statements concerning its efforts to satisfy the evolving regulatory environment, and the resources it devoted to regulatory compliance, among other matters. Those lawsuits were consolidated in the United States District Court for the Southern District of Florida in the matter captioned Carvelli v. Ocwen Financial Corporation et al., 9:14-cv-9:17-cv-80500-RLR (S.D. Fla.). On April 27, 2018, the court in Carvelli granted the company's motion to dismiss, and dismissed the consolidated case with prejudice. Plaintiffs thereafter filed a notice of appeal, and that appeal remains pending. Ocwen and the other defendants intend to defend themselves vigorously. Ocwen Financial said, "Additional lawsuits may be filed against us in relation to these matters. At this time, Ocwen is unable to predict the outcome of this existing lawsuit or any additional lawsuits that may be filed, the possible loss or range of loss, if any, associated with the resolution of such lawsuits or the potential impact such lawsuits may have on us or our operations. If additional lawsuits are filed, Ocwen intends to vigorously defend itself against such lawsuits. If our efforts to defend the existing lawsuit or any future lawsuit are not successful, our business, financial condition, liquidity and results of operations could be materially and adversely affected." Ocwen Financial Corporation, a financial services holding company, originates and services loans in the United States, the United States Virgin Islands, India, and Philippines. Ocwen Financial Corporation was founded in 1988 and is headquartered in West Palm Beach, Florida. OCWEN FINANCIAL: Directed to Pay $53K to Claims Administrator ------------------------------------------------------------- Plaintiffs George and Claudia Camberis filed the class action lawsuit captioned GEORGE L. CAMBERIS, et al., Plaintiffs, v. OCWEN LOAN SERVICING LLC, Defendant, Case No. 14-cv-02970-EMC (N.D. Cal.) against Defendant Ocwen Financial Corporation alleging that Ocwen failed to report negative amortization mortgage interest that Plaintiffs and other similarly situated homeowners had paid to the IRS for tax year 2013, causing them to lose substantial tax deductions. The parties reached a proposed settlement agreement, and the Court granted final approval of the agreement on Dec. 7, 2015. To date, approximately $108,000 in settlement funds have not been claimed. Ocwen filed a motion for court approval of its proposed distribution plan for the unclaimed funds. Upon analysis, District Judge Edward M. Chen orders the following: (1) Ocwen must pay the $53,014.01 owed to the Claims Administrator for the initial distribution; (2) The parties must carry out a secondary distribution sending $6.76 to each of the 16,047 class members who cashed their initial checks; (3) Any remaining funds unclaimed after the secondary distribution must be allocated to cover the administrative costs of the secondary distribution, and Ocwen must bear any additional costs not covered by the unclaimed funds; (4) If the funds unclaimed after the secondary distribution exceed the administrative costs of the distribution, the leftover funds will be donated to HomeFree USA via cy pres. Ocwen proposed that all unclaimed funds should be donated to charity under the cy pres doctrine. Alternatively, Ocwen admitted that a secondary distribution to class members is possible, but argued that the administrative cost of such a distribution should be deducted from the residual fund, rather than borne by Ocwen (although Ocwen agreed to pay all fees and costs for the first distribution). It suggests that any remaining funds unclaimed after the secondary distribution be donated to the charities described above, instead of being processed in a third round of distributions. Plaintiffs proposed that the remaining funds be distributed to class members, and that Ocwen should cover the administrative costs of the secondary distribution. Plaintiffs agree with Ocwen that any funds remaining after the secondary distribution can be donated to "an appropriate charity," without indicating that they approve of the two organizations Ocwen proposed. Ocwen argued that it should not have to pay the costs of the secondary distribution for two reasons. First, the settlement agreement apparently only contemplated one round of distribution. Second, the Court's Order granting final approval of the settlement agreement noted that the expected class administration costs would be $55,000, and Ocwen has already agreed to pay the $53,014.01 owed to the Claims Administrator for the initial distribution. While there is some merit to Ocwen's position, the settlement agreement also provides, without any limitations, that "Ocwen shall also pay the Claims Administrator's fees and costs." Moreover, although Ocwen characterizes the difference between each class member receiving $6.76 and $5.05 in the secondary distribution as "de minimum," that difference in fact represents an approximate decrease of 25%. On balance, the Court determined that it would be equitable to distribute the full $6.76 amount to each class member and use any funds still unclaimed after the secondary distribution to cover the administrative costs. In the event that unclaimed funds still remain after the costs of the secondary distribution are paid, donation to a cy pres recipient is appropriate. Ocwen also proposed HomeFree USA and Habitat for Humanity Buffalo as cy pres recipients. The Ninth Circuit has instructed that a cy pres distribution must be guided by "the objectives of the underlying statute(s)", the "interests of the silent class members," and "the nature of the plaintiffs' lawsuit." Plaintiffs here primarily allege violations of 26 U.S.C. section 6050H, which "requires any individual who receives interest aggregating over $600 on a mortgage in a given year from another individual to furnish the Internal Revenue Service with an information return identifying the amount of interest received." The objective of section 6050H is to "assist the [IRS] in verifying the accuracy of claimed mortgage interest deductions." By doing so, section 6050H benefits homeowners by allowing them to obtain tax deductions. HomeFree USA, as an organization that promotes homeownership by providing financial and mortgage literacy resources to homebuyers and homeowners, comports with the purpose of section 6050H. HomeFree USA, therefore, relates to the nature of Plaintiffs' lawsuit, which concerns homeowners' awareness of their rights regarding mortgage loans, and aligns with the interests of the silent class members. Moreover, although HomeFree USA's nationwide network of affiliates includes "ethnically and culturally diverse faith and community-based nonprofit partners," there is nothing to suggest that HomeFree USA is itself a faith-based organization, contrary to Plaintiffs' objection. Accordingly, the Court determines that HomeFree USA shall be the cy presrecipient of any settlement funds remaining after the secondary distribution. A copy of the Court's Order dated Nov. 20, 2018 is available at https://bit.ly/2Rz6MMG from Leagle.com. George L. Camberis, individually, and on behalf of the class and all others similarly situated & Claudia Camberis, individually and on behalf of the class of all others similarly situated, Plaintiffs, represented by Michael R. Brown , Michael R. Brown APC & David James Vendler, Morris Polich & Purdy LLP. Ocwen Loan Servicing LLC, Defendant, represented by Jeff Eric Scott -- scottj@gtlaw.com -- Greenberg Traurig, LLP, Jennifer Lee Gray -- grayj@gtlaw.com -- Greenberg Traurig, LLP & Sarah Elizabeth Barrows -- barrows@gtlaw.com -- Greenberg Traurig LLP. OCWEN FINANCIAL: TCPA Class Action in Illinois Still Ongoing ------------------------------------------------------------ Ocwen Financial Corporation 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 the parties in Snyder v. Ocwen Loan Servicing, LLC, and Beecroft v. Ocwen Loan Servicing, advised the Court of their intention to further mediate the dispute, in an effort to address certain issues raised by the Court. Ocwen has been named in putative class actions and individual actions related to its compliance with the Telephone Consumer Protection Act (TCPA). Generally, plaintiffs in these actions allege that Ocwen knowingly and willfully violated the TCPA by using an automated telephone dialing system to call class members' cell phones without their consent. On July 28, 2017, Ocwen entered into an agreement in principle to resolve two such putative class actions, which have been consolidated in the United States District Court for the Northern District of Illinois. Snyder v. Ocwen Loan Servicing, LLC, 1:14-cv-08461-MFK (N.D. Ill.); Beecroft v. Ocwen Loan Servicing, LLC, 1:16-cv-08677-MFK (N.D. Ill.). Subject to final approval by the court, the settlement will include the establishment of a settlement fund to be distributed to impacted borrowers that submit claims for settlement benefits pursuant to a claims administration process. While Ocwen believes that it has sound legal and factual defenses, Ocwen agreed to this settlement in principle in order to avoid the uncertain outcome of litigation and the additional expense and demands on the time of its senior management that such litigation would involve. In October 2017, the court preliminarily approved the settlement and, thereafter, the company paid the settlement amount into an escrow account held by the settlement administrator. However, on September 28, 2018, the Court denied the motion for final approval. On October 9, 2018, the parties advised the Court of their intention to further mediate the dispute, in an effort to address certain issues raised by the Court. Ocwen Financial said, "There can be no assurance that the Court will finally approve the settlement or any revisions to it to which the parties may agree. In the event the settlement or any agreed upon revisions are not finally approved, the litigation would continue, and we would vigorously defend the allegations made against Ocwen. Additional lawsuits may be filed against us in relation to these matters. At this time, Ocwen is unable to predict the outcome of these existing lawsuits or any additional lawsuits that may be filed, the possible loss or range of loss, if any, associated with the resolution of such lawsuits or the potential impact such lawsuits may have on us or our operations. Ocwen intends to vigorously defend against these lawsuits. If our efforts to defend these lawsuits are not successful, our business, financial condition liquidity and results of operations could be materially and adversely affected." Ocwen Financial Corporation, a financial services holding company, originates and services loans in the United States, the United States Virgin Islands, India, and Philippines. Ocwen Financial Corporation was founded in 1988 and is headquartered in West Palm Beach, Florida. ORRSTOWN FINANCIAL: Pretrial & Settlement Conference on Dec. 11 --------------------------------------------------------------- Orrstown Financial Services, 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 the mandatory pretrial and settlement conference in the SEPTA Putative Class Action suit is set for December 11, 2018. On May 25, 2012, SEPTA filed a putative class action complaint in the U.S. District Court for the Middle District of Pennsylvania against the Company, the Bank and certain current and former directors and executive officers (collectively, the "Defendants"). The complaint alleges, among other things, that (i) in connection with the Company's Registration Statement on Form S-3 dated February 23, 2010 and its Prospectus Supplement dated March 23, 2010, and (ii) during the purported class period of March 24, 2010 through October 27, 2011, the Company issued materially false and misleading statements regarding the Company's lending practices and financial results, including misleading statements concerning the stringent nature of the Bank's credit practices and underwriting standards, the quality of its loan portfolio, and the intended use of the proceeds from the Company's March 2010 public offering of common stock. The complaint asserts claims under Sections 11, 12(a) and 15 of the Securities Act of 1933, Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder, and seeks class certification, unspecified money damages, interest, costs, fees and equitable or injunctive relief. Under the Private Securities Litigation Reform Act of 1995 ("PSLRA"), motions for appointment of Lead Plaintiff in this case were due by July 24, 2012. SEPTA was the sole movant and the Court appointed SEPTA Lead Plaintiff on August 20, 2012. Pursuant to the PSLRA and the Court's September 27, 2012 Order, SEPTA was given until October 26, 2012 to file an amended complaint and the Defendants until December 7, 2012 to file a motion to dismiss the amended complaint. SEPTA's opposition to the Defendant's motion to dismiss was originally due January 11, 2013. Under the PSLRA, discovery and all other proceedings in the case were stayed pending the Court's ruling on the motion to dismiss. The September 27, 2012 Order specified that if the motion to dismiss were denied, the Court would schedule a conference to address discovery and the filing of a motion for class certification. On October 26, 2012, SEPTA filed an unopposed motion for enlargement of time to file its amended complaint in order to permit the parties and new defendants to be named in the amended complaint time to discuss plaintiff's claims and defendants' defenses. On October 26, 2012, the Court granted SEPTA's motion, mooting its September 27, 2012 scheduling Order, and requiring SEPTA to file its amended complaint on or before January 16, 2013 or otherwise advise the Court of circumstances that require a further enlargement of time. On January 14, 2013, the Court granted SEPTA's second unopposed motion for enlargement of time to file an amended complaint on or before March 22, 2013. On March 4, 2013, SEPTA filed an amended complaint. The amended complaint expands the list of defendants in the action to include the Company's independent registered public accounting firm and the underwriters of the Company's March 2010 public offering of common stock. In addition, among other things, the amended complaint extends the purported 1934 Exchange Act class period from March 15, 2010 through April 5, 2012. Pursuant to the Court's March 28, 2013 Second Scheduling Order, on May 28, 2013, all defendants filed their motions to dismiss the amended complaint, and on July 22, 2013, SEPTA filed its "omnibus" opposition to all of the defendants' motions to dismiss. On August 23, 2013, all defendants filed reply briefs in further support of their motions to dismiss. On December 5, 2013, the Court ordered oral argument on the Orrstown Defendants' motion to dismiss the amended complaint to be heard on February 7, 2014. Oral argument on the pending motions to dismiss SEPTA's amended complaint was held on April 29, 2014. The Second Scheduling Order stayed all discovery in the case pending the outcome of the motions to dismiss, and informed the parties that, if required, a telephonic conference to address discovery and the filing of SEPTA's motion for class certification would be scheduled after the Court's ruling on the motions to dismiss. On April 10, 2015, pursuant to Court order, all parties filed supplemental briefs addressing the impact of the U.S. Supreme Court's March 24, 2015 decision in Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund on defendants' motions to dismiss the amended complaint. On June 22, 2015, in a 96-page Memorandum, the Court dismissed without prejudice SEPTA's amended complaint against all defendants, finding that SEPTA failed to state a claim under either the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended. The Court ordered that, within 30 days, SEPTA either seek leave to amend its amended complaint, accompanied by the proposed amendment, or file a notice of its intention to stand on the amended complaint. On July 22, 2015, SEPTA filed a motion for leave to amend under Local Rule 15.1, and attached a copy of its proposed second amended complaint to its motion. Many of the allegations of the proposed second amended complaint are essentially the same or similar to the allegations of the dismissed amended complaint. The proposed second amended complaint also alleges that the Orrstown Defendants did not publicly disclose certain alleged failures of internal controls over loan underwriting, risk management, and financial reporting during the period 2009 to 2012, in violation of the federal securities laws. On February 8, 2016, the Court granted SEPTA's motion for leave to amend and SEPTA filed its second amended complaint that same day. On February 25, 2016, the Court issued a scheduling Order directing: all defendants to file any motions to dismiss by March 18, 2016; SEPTA to file an omnibus opposition to defendants' motions to dismiss by April 8, 2016; and all defendants to file reply briefs in support of their motions to dismiss by April 22, 2016. Defendants timely filed their motions to dismiss the second amended complaint and the parties filed their briefs in accordance with the Court-ordered schedule. The February 25, 2016 Order stays all discovery and other deadlines in the case (including the filing of SEPTA's motion for class certification) pending the outcome of the motions to dismiss. The allegations of SEPTA's proposed second amended complaint disclosed the e OVASCIENCE INC: Adlard and Wheby Securities Class Suits Filed ------------------------------------------------------------- OvaScience Inc., said in its Form 8-K filing with the U.S. Securities and Exchange Commission filed on November 19, 2018, that the company is facing two class action suits entitled, Adlard v. OvaScience, Inc., et al., No. 1:18-cv-12332-WGY (D. Mass. filed Nov. 6, 2018) and Wheby v. OvaScience, Inc., et al., No. 1:18-cv-01811 (D. Del. filed Nov. 16, 2018. On November 5, 2018, OvaScience, Inc. ("OvaScience" or the "Company") filed a final proxy statement, prospectus and information statement (the "Definitive Proxy Statement") with the Securities and Exchange Commission (the "SEC") with respect to the special meeting of OvaScience's stockholders scheduled to be held on December 4, 2018 in order to, among other things, obtain the stockholder approvals necessary to complete the planned merger of Millendo Therapeutics, Inc. ("Millendo") with and into Orion Merger Sub, Inc., a wholly owned subsidiary of OvaScience ("Merger Sub"), under an Agreement and Plan of Merger and Reorganization dated as of August 8, 2018, as amended (the "Merger Agreement"), pursuant to which, among other matters, and subject to the satisfaction or waiver of the conditions set forth in the Merger Agreement, Merger Sub will merge with and into Millendo, with Millendo continuing as a wholly owned subsidiary of OvaScience and the surviving corporation of the merger (the "Millendo Transaction"). In connection with the Millendo Transaction, two putative securities class actions have been filed in the U.S. District Court for the District of Massachusetts and the U.S. District Court for the District of Delaware, respectively, against OvaScience, Christopher Kroeger, Richard Aldrich, Jeffrey D. Capello, Mary Fisher, John Howe, III, Marc Kozin and John Sexton. The complaints are captioned as follows: Adlard v. OvaScience, Inc., et al., No. 1:18-cv-12332-WGY (D. Mass. filed Nov. 6, 2018) ("Adlard") and Wheby v. OvaScience, Inc., et al., No. 1:18-cv-01811 (D. Del. filed Nov. 16, 2018) ("Wheby"). The lawsuits allege that the Definitive Proxy Statement made false and misleading statements and omissions in connection with the Millendo Transaction, in violation of the Securities Exchange Act of 1934 and Rule 14a-9 promulgated thereunder. The Adlard plaintiff seeks to represent a class of all persons and entities that own OvaScience common stock. Similarly, the Wheby plaintiff seeks to represent a class of all public stockholders of OvaScience. The lawsuits seek, among other things, preliminary and permanent injunctions of the Millendo Transaction unless OvaScience discloses certain information requested by plaintiffs, rescission and unspecified damages if the Millendo Transaction is consummated, and attorneys' fees. The Company believes that no supplemental disclosures are required under applicable laws. However, to avoid the risk of the Stockholder Litigation delaying or adversely affecting the closing of the Millendo Transaction and to minimize the expense of defending the Stockholder Litigation, and without admitting any liability or wrongdoing, the Company is making certain disclosures that supplement and revise those contained in the Definitive Proxy Statement, which the company refers to as the "litigation-related supplemental disclosures." The litigation-related supplemental disclosures contained below should be read in conjunction with the Definitive Proxy Statement, which is available on the Internet site maintained by the SEC at http://www.sec.gov,along with periodic reports and other information the Company files with the SEC. The Company and the other named defendants deny that they have committed or assisted others in committing any violations of law or breaches of duty to Company stockholders, and expressly maintain that they have complied with their fiduciary and other legal duties and are providing the litigation-related supplemental disclosures below solely to try to eliminate the burden and expense of further litigation, to put the claims that were or could have been asserted to rest, and to avoid any possible delay to the closing of the Millendo Transaction that might arise from further litigation. Nothing in the litigation-related supplemental disclosures shall be deemed an admission of the legal necessity or materiality under applicable laws of any of the litigation-related supplemental disclosures. To the extent that the information set forth differs from or updates information contained in the Definitive Proxy Statement, the information set forth shall supersede or supplement the information in the Definitive Proxy Statement. References to sections and subsections herein are references to the corresponding sections or subsections in the Definitive Proxy Statement, all page references are to pages in the Definitive Proxy Statement, and terms used herein, unless otherwise defined, have the meanings set forth in the Definitive Proxy Statement. A copy of the company's supplement to the definitive proxy statement is available at https://goo.gl/KmrBRB. OvaScience, Inc., a fertility company, discovers, develops, and commercializes fertility treatment options for women and families struggling with infertility worldwide. The company was formerly known as Ovastem, Inc. and changed its name to OvaScience, Inc. in May 2011. OvaScience, Inc. was founded in 2011 and is headquartered in Waltham, Massachusetts. PANDORA MEDIA: Dawson Balks at Merger Deal with Sirius XM --------------------------------------------------------- WILLIAM DAWSON, Individually and on Behalf of All Others Similarly Situated, the Plaintiff, vs. PANDORA MEDIA, INC., ROGER LYNCH, ROGER FAXON, DAVID FREAR, JASON HIRSCHHORN, TIMOTHY LEIWEKE, MICHAEL LYNTON, GREGORY MAFFEI, JAMES MEYER, MICKIE ROSEN, WHITE OAKS ACQUISITION CORP., and SIRIUS XM HOLDINGS INC., the Defendants, Case 3:18-cv-07001-JST (N.D. Cal., Nov. 19, 2018), alleges that Defendants violated Section 14(a) and 20(a) of the Securities Exchange Act of 1934, and SEC Rule 14a-9, 17 C.F.R. 240.14a-9, arising out of company's Board of Directors' attempt to sell the Company to Sirius XM Holdings Inc. through its wholly-owned subsidiary White Oaks Acquisition Corp. According to the complaint, the Defendants have violated the above-referenced Sections of the Exchange Act by causing a materially incomplete and misleading registration statement to be filed with the Securities and Exchange Commission on October 31, 2018. The S-4 recommends that Pandora shareholders vote in favor of a proposed transaction whereby Pandora is acquired by SiriusXM. The Proposed Transaction was first disclosed on September 24, 2018, when Pandora and SiriusXM announced that they had entered into a definitive merger agreement pursuant to which SiriusXM will acquire all of the outstanding shares of common stock of Pandora for 1.44 shares of SiriusXM common stock. The deal is valued at approximately $3.5 billion and is expected to close in the first quarter of 2019. The Proposed Transaction is unfair to Pandora's shareholders, as it offers an unfair price for their investment and is the result of an unfair process. The Merger Consideration is considerably less than analyst target prices for the Company, with one analyst setting a target price as high as $13.00 per share. The Merger Consideration fails to compensate Pandora's shareholders for the significant benefits the Proposed Transaction provides to SiriusXM. And three of the Company's directors, who are fiduciaries of SiriusXM, pressured the Board into considering a sale of Pandora to SiriusXM. Furthermore, the S-4 is materially incomplete and contains misleading representations and information in violation of Sections 14(a) and 20(a) of the Exchange Act. Specifically, the S-4 contains materially incomplete and misleading information concerning the sales process and the financial analyses conducted by Centerview Partners LLC and LionTree Advisors LLC, Pandora's financial advisors, the lawsuit says.[BN] Attorneys for Plaintiff: Evan J. Smith, Esq. Ryan P. Cardona, Esq. BRODSKY & SMITH, LLC 9595 Wilshire Boulevard, Suite 900 Beverly Hills, CA 90212 Telephone: (877) 534-2590 Facsimile: (310) 247-0160 E-mail: esmith@brodskysmith.com rcardona@brodskysmith.com - and - Shane T. Rowley, Esq. Danielle Rowland Lindahl, Esq. ROWLEY LAW PLLC 50 Main Street, Suite 1000 White Plains, NY 10606 Telephone: (914) 400-1920 Facsimile: (914) 301-3518 PANDORA MEDIA: Richard Irvin Balks at Merger Deal with Sirius ------------------------------------------------------------- RICHARD IRVIN, on behalf of himself and all others similarly situated, the Plaintiff, vs. PANDORA MEDIA, INC., GREGORY B. MAFFEI, ROGER CONANT FAXON, DAVID J. FREAR, JASON HIRSCHHORN, TIMOTHY LEIWEKE, ROGER J. LYNCH, MICHAEL M. YNTON, JAMES E. MEYER, MICKIE ROSEN, SIRIUS XM HOLDINGS INC., and WHITE OAKS ACQUISITION CORP., the Defendants, Case No. R618927947 (Cal. Super. Ct., Nov. 8, 2018) contends that the Defendants' transaction is the result of an unfair process for unfair price. The lawsuit seeks to enjoin an upcoming stockholder vote on the proposed all-stock transaction valued at approximately $3.5 billion. The terms of the Proposed Transaction were memorialized in a September 24, 2018, filing with the Securities and Exchange Commission on Form 8-K attaching definitive Agreement and Plan of Merger. Under the terms of the Merger and Agreement, Pandora will become an indirect wholly-owned subsidiary of Sirius, Pandora stockholders will receive 1.44 shares of Sirius common stock for each share of Pandora common stock. they own, resulting in a merger consideration of approximately $10.14 per share of Pandora common stock based upon the 30-day volume-weighted average price of$7.04 per Sirius common stock preceding entry into the merger agreement. Thereafter, on October 31, 2018, Sirius filed a Registration Statement Form S-16 with the SEC in support of the Proposed Transaction. The Proposed Transaction represents an effort by Sirius, which already wins 15.6% of Pandora, to freeze out all other public stockholders of Pandora. To that end the Proposed Transaction was orchestrated by Sirius, whose own executives and Board members, the lawsuit says. Pandora Media Inc. is a music streaming and automated music recommendation internet radio service powered by the Music Genome Project. As of August 1, 2017, the service, operated by Pandora Media, Inc., is available only in the United States. The service plays songs that have similar musical traits.[BN] Attorneys for Plaintiff: Evan J. Smith, Esq. Ryan P. Cardona, Esq. BRODSKY & SMITH, LLC Two Bala Plaza, Suite 510 Bala Cynwyd, PA 19004 Telephone: (610) 667 6200 E-mail: esmith@brodskysmith.com rcardona@brodskysmith.com PANDORA MEDIA: Staab Balks at Merger Deal with Sirius ----------------------------------------------------- DOUG STAAB, Individually and on Behalf of All Others Similarly Situated, the Plaintiff, vs. PANDORA MEDIA, INC., GREGORY B. MAFFEI, ROGER CONANT FAXON, DAVID J. FREAR, JASON HIRSCHHORN, TIMOTHY LEIWEKE, ROGER J. LYNCH, MICHAEL M. LYNTON, JAMES E. MEYER, and MICKIE ROSEN, the Defendants, Case No. 1:18-cv-01830-UNA (D. Del., Nov. 20, 2018), seeks to enjoin Defendants from taking any steps to consummate a proposed transaction or, in the event the proposed transaction is consummated, to recover damages resulting from Defendants' conduct. According to the complaint, the action stems from a proposed transaction announced on September 24, 2018, pursuant to which Pandora Media, Inc. will be acquired by Sirius XM Holdings Inc., through its wholly owned subsidiary, White Oaks Acquisition Corp. Sirius currently owns 15.6% of Pandora. On September 23, 2018, the Company's Board of Directors caused the Company to enter into an Agreement and Plan of Merger and Reorganization with Sirius XM and White Oaks. Pursuant to the Merger Agreement, in an all-stock transaction valued at approximately $3.5 billion, the owners of the outstanding shares in Pandora that Sirius XM does not currently own will receive a fixed exchange ratio of 1.44 newly issued Sirius XM shares for each share of Pandora they hold. Upon completion of the Merger, Pandora will be integrated into Sirius XM as a wholly owned subsidiary of Sirius XM, and Pandora's shareholders will own approximately 8.6% of Sirius. On October 31, 2018, the Defendants and Sirius XM filed a registration statement on a Form S-4 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, the lawsuit says. Pandora Media Inc. is a music streaming and automated music recommendation internet radio service powered by the Music Genome Project. As of August 1, 2017, the service, operated by Pandora Media, Inc., is available only in the United States. The service plays songs that have similar musical traits.[BN] Attorneys for Plaintiff: Brian D. Long, Esq. Gina M. Serra, Esq. RIGRODSKY & LONG, P.A. 300 Delaware Avenue, Suite 1220 Wilmington, DE 19801 Telephone: (302) 295-5310 Facsimile: (302) 654-7530 E-mail: bdl@rl-legal.com gms@rl-legal.com - and - 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 PAPA JOHN'S: Investors' Class Action Underway in New York --------------------------------------------------------- Papa John's 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 the company is defending against a class action lawsuit filed in the United States District Court, Southern District of New York. On August 30, 2018, a class action lawsuit was filed in the United States District Court, Southern District of New York, on behalf of a class of investors who purchased or acquired stock in Papa John's through a period up to and including July 19, 2018. The complaint alleges violations of Sections l0(b) and 20(a) of the Securities Exchange Act of 1934. The Company believes that it has valid and meritorious defenses to these suits and intends to vigorously defend against them. The Company has not recorded any liability related to these lawsuits as of September 30, 2018 as it does not believe a loss is probable or estimable. Papa John's International, Inc. operates and franchises pizza delivery and carryout restaurants under the Papa John's trademark in the United States and internationally. It operates through five segments: Domestic Company-Owned Restaurants, North America Commissaries, North America Franchising, International Operations, and All Others. The company was founded in 1984 and is headquartered in Louisville, Kentucky. PC SHIELD: Court Won't Certify TCPA Suit ---------------------------------------- The United States District Court for the Western District of Pennsylvania denying Plaintiffs' Motion for Class Certification in the case captioned WENDELL H. STONE COMPANY, INC. individually and on behalf of all others similarly situated doing business as STONE & COMPANY, Plaintiff, v. PC SHIELD INC. an Oklahoma corporation, Defendant. No. 18cv1135. (W.D. Pa.). The Plaintiff's putative class action is brought pursuant to the Telephone Consumer Protection Act of 1991, as amended by the Junk Fax Prevention Act of 2005 (TCPA). The Plaintiff alleges that in August 2017, the Defendant caused one unsolicited facsimile to be transmitted by telephone facsimile machine to the Plaintiff. What was sent was an advertisement of the Defendant's computer protection software and other products, which the Defendant created or caused to be created, and which the Defendant intended to, and did distribute to the Plaintiff. Thus, to bring a class action, a plaintiff must sufficiently establish the prerequisites set forth in Federal Rule of Civil Procedure 23(a), the first of which is that the class is so numerous that joinder of all members is impracticable. The numerosity requirement was recently addressed by the Court of Appeals in Mielo v. Steak'n Shake Operations, Inc., 897 F.3d 467 (3d Cir. 2018): Rule 23(a)(1) requires that the proposed class be so numerous that joinder of all members is impracticable. The class Plaintiff seeks to certify is: No Consent Class: All persons who (1) on or after four years prior to the filing of this action, (2) were sent, by Defendant or on Defendant's behalf an unsolicited telephone facsimile message substantially similar to Exhibit A [the faxed advertisement sent from Defendant to Plaintiff, (3) from whom Defendant claims it obtained prior express permission or invitation to send those faxes in the same manner as Defendant claims it obtained prior express consent to fax Plaintiff. Significantly, the Plaintiff did not submit any evidence in support of the number of class members, relying upon its allegation that Defendant sent unlawful fax advertisements to hundreds or thousands of consumers: Hence, the proposed Class satisfies the numerosity requirement and discovery can confirm this if needed. Clearly, the Plaintiff has not established by a preponderance of the evidence that the proposed class is so numerous that joinder of all members is impracticable. Accordingly, Plaintiff's Motion for Class Certification will be denied. A full-text copy of the District Court's November 19, 2018 Memorandum Order is available at https://tinyurl.com/yaxneo2z from Leagle.com. WENDELL H. STONE COMPANY, INC., individually and on behalf of all others similarly situated, Plaintiff, represented by Patrick H. Peluso -- ppeluso@woodrowpeluso.com -- Woodrow & Peluso, LLC, pro hac vice & Stuart C. Gaul, Jr. -- stuart.gaul@gaul-legal.com PDC ENERGY: Awaits Court OK on Bid to Dismiss Dufresne Class Suit ----------------------------------------------------------------- PDC Energy, 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 the company has filed a motion to dismiss the second amended complaint in Dufresne, et al. v. PDC Energy, et al., and is now awaiting court's decision. In December 2017, the company received an action entitled Dufresne, et al. v. PDC Energy, et al., filed in the United States District Court for the District of Colorado. The complaint states that it is a derivative action brought by a number of limited partner investors seeking to assert claims on behalf of the company's two affiliated partnerships, Rockies Region 2006 LP and Rockies Region 2007 LP, against PDC and includes claims for breach of fiduciary duty and breach of contract. The plaintiffs also included claims against two of the company's senior officers for alleged breach of fiduciary duty. The lawsuit accuses PDC, as the managing general partner of the two partnerships, of, among other things, failing to maximize the productivity of the partnerships' crude oil and natural gas wells. The company filed a motion to dismiss the lawsuit on February 1, 2018, on the grounds that the complaint is deficient, including because the plaintiffs failed to allege that PDC refused a demand to take action on their claims. On March 14, 2018, the motion was denied as moot by the court because the plaintiffs requested leave to amend their complaint. In late April 2018, the plaintiffs filed an amendment to their complaint. Such amendment primarily alleges additional facts to support the plaintiffs' claims and purports to add direct class action claims in addition to the original derivative claims. The amendment also adds three new individual defendants, all of whom are currently independent members of the company's Board of Directors. The company moved to dismiss the claims against the individuals named as defendants and in response, the plaintiffs filed a second amended complaint on July 10, 2018. The company filed a motion to dismiss the second amended complaint and the claims against the individuals named as defendants on July 31, 2018 and are awaiting a ruling at this time. PDC Energy said, "We are currently unable to estimate any potential damages resulting from this lawsuit." PDC Energy, Inc., an independent exploration and production company, acquires, explores for, develops, and produces crude oil, natural gas, and natural gas liquids in the United States. The company’s operations are primarily located in the Wattenberg Field in Colorado and the Delaware Basin in Texas. The company was formerly known as Petroleum Development Corporation and changed its name to PDC Energy, Inc. in June 2012. PDC Energy, Inc. was founded in 1969 and is headquartered in Denver, Colorado. PORTFOLIO RECOVERY: Ct. Partly Grants Bid for Judgment on Pleadings ------------------------------------------------------------------- Plaintiffs Carlos Beaufrand, Bonnie Meyer, Jacqueline Olson, and Mary Schneider in the case captioned CARLOS BEAUFRAND, BONNIE MEYER, JACQUELINE OLSON, and MARY SCHNEIDER, Individually and on Behalf of All Other Similarly Situated, Plaintiffs, v. PORTFOLIO RECOVERY ASSOCIATES, LLC Defendant, Case No. 18-CV-214 (E.D. Wis.) filed an amended class action complaint against Portfolio Recovery Associates, LLC alleging that PRA sent debt validation notices that violated the Fair Debt Collection Practices Act, (the "FDCPA"). PRA submitted its answer, and also moved for judgment on the pleadings under Federal Rule of Civil Procedure 12(c). Magistrate Nancy Joseph denies the motion as to Count I, but grants the motion for all other counts. The Plaintiffs' two motions for leave to submit additional authority pursuant to Civil Local Rule 7(h) is granted. The amended complaint alleges that Plaintiff Beaufrand received a collection letter from PRA dated March 30, 2018 that contained a validation notice. Count I alleges that the notices violated sections 1692e, 1692e(10), 1692f, 1692g(a)(4), 1692g(a)(5), and 1692g(b). Count II claims that the notices sent to all the plaintiffs failed "to unambiguously inform the consumer that, in order to invoke his or her right to obtain validation of the debt, the consumer must make the request in writing to PRA, not the original creditor." The amended complaint alleges that including the name and address of the original creditor near PRA's name at the top of the notices might confuse an unsophisticated consumer as to the owner of the debt or the address to which to direct correspondence, including payments or disputes. Thus, Count II alleges that PRA violated 15 U.S.C. sections 1692g, 1692g(a), and 1692g(b). Similarly, Count III claims that listing the address of the original creditor next to the name of the current owner of the debt "is false, misleading and confusing to the unsophisticated consumer. Including the address of the former creditor who has no interest in the alleged debt misleads the consumer into directing disputes to the wrong party." Count IV claims that the validation notice to Schneider "falsely states the date on which PRA purchased Schneider's account from Comenity," and that "the unsophisticated consumer would be misled as to who owned the debt and to which address to send payment." Thus, Count IV claims that PRA violated sections 1692e, 1692e(2) and 1692e(10). Here, the Court finds that PRA's defense of the language in the letters to Plaintiff Beaufrand is unavailing. In essence, PRA argues that this letter does not overshadow the validation notice because it falls outside several categories of overshadowing or contradictory language discussed in other cases. But simply distinguishing this case from other cases of overshadowing or contradiction does not answer the relevant question, which is whether the unsophisticated consumer would be materially confused or misled. Applying that standard directly, I find that the language is sufficiently ambiguous to confuse or mislead an unsophisticated consumer into disputing a debt by phone instead of in writing. Because the Court finds that allegations in the amended complaint support a reasonable inference that an unsophisticated consumer would be materially confused by PRA's notices, the Court denies the defendant's motion for judgment on the pleadings with respect to Count I. On Count II, the Court finds that there are other characteristics of PRA's letters that minimize potential confusion. The bottom of the page of PRA’s letter consists of a detachable coupon with PRA's name and address; in other words, PRA pre-filled the payment address for the consumer. On the reverse side, the first item is an instruction to make all checks payable to PRA and send all payments to PRA at its listed mailing address. It then gives the company address, followed by an instruction to send written disputes to PRA's disputes address. In light of these factors, the Plaintiffs' claim that consumers would be confused or misled into directing payments or disputes to the original creditor seems implausible. Thus, the Court must conclude that these letters are clear and not misleading on their face. For this reason, the Court grants PRA's motion for judgment on the pleadings with respect to Counts II and III. In light of the overwhelming consistency between the letters, the Court does not find that the Plaintiffs have asserted a claim for relief that is plausible on its face simply because, upon close scrutiny, there was some ambiguity as to the exact date of the sale. Thus, the Court grants the defendants' motion for judgment on the pleadings with respect to Count IV. A copy of the Court's Decision and Order dated Nov. 20, 2018 is available at https://bit.ly/2QyybkL from Leagle.com. Bonnie Meyer, Jacqueline Olson, Mary Schneider & Carlos Beaufrand, Plaintiffs, represented by Ben J. Slatky -- bslatky@ademilaw.com -- Ademi & O'Reilly LLP, Jesse Fruchter -- jfruchter@ademilaw.com -- Ademi & O'Reilly LLP, Mark A. Eldridge -- meldridge@ademilaw.com -- Ademi & O'Reilly LLP & John D. Blythin -- jblythin@ademilaw.com -- Ademi & O'Reilly LLP. Portfolio Recovery Associates LLC, Defendant, represented by Avanti D. Bakane -- abakane@grsm.com -- Gordon Rees Scully Mansukhani LLP & Chirag Haresh Patel, Gordon Rees Scully Mansukhani LLP. POULIN VENTURES: Meneses Sues over Telemarketing Text Messages -------------------------------------------------------------- JEANETTE MENESES, individually and on behalf of all others similarly situated, the Plaintiff, vs. POULIN VENTURES, LLC D/B/A LADY BOSS, a New Mexico Liability Company, the Defendant, Case No. 5:18-cv-00593 (M.D. Fla., Nov. 20, 2018), seeks injunctive relief to halt Defendant's illegal conduct, which has resulted in the invasion of privacy, harassment, aggravation, and disruption of the daily life of thousands of individuals, and seeks statutory damages on behalf of herself and members of the class, and any other available legal or equitable remedies, for violations of the Telephone Consumer Protection Act. According to the complaint, the Defendant is an online global weight loss system for women. To promote its services, Defendant engages in unsolicited marketing, harming thousands of consumers in the process. On or about September 5, 2018 and September 7, 2018, the Defendant sent telemarketing text messages to Plaintiff's cellular telephone number ending in 9814. Defendant's text messages constitute telemarketing because they encouraged the future purchase or investment in property, goods, or services, i.e., selling Plaintiff diet plans and coaches. The information contained in the text message advertises Defendant's "Certified Results Coach" and other individuals results working with Defendant which Defendant sends to promote its business, the lawsuit says.[BN] Counsel for Plaintiff and the Class: Andrew J. Shamis, Esq. SHAMIS & GENTILE, P.A. 14 NE 1 st Avenue, Suite 1205 Miami, FL 33132 Telephone: 305-479-2299 E-mail: ashamis@shamisgentile.com - and - Scott Edelsberg, Esq. EDELSBERG LAW, PA 19495 Biscayne Blvd No. 607 Aventura, FL 33180 Telephone: 305-975-3320 E-mail: scott@edelsberglaw.com PREMIUM DESTINATIONS: Sued over Unwanted Calls & Text Messages -------------------------------------------------------------- CEBIL RILEY, on behalf of himself and all others similarly situated, the Plaintiff, vs. PREMIUM DESTINATIONS, LLC, the Defendant, Case No. 6:18-cv-02017 (M.D. Fla., Nov. 20, 2018), seeks to recover damages and other equitable relief resulting from the unlawful conduct of Defendant in negligently or knowingly and/or willfully placing calls and sending text messages to the cellular telephones of Plaintiff and putative Class Members for non-emergency purposes, using an automatic telephone-dialing system without their prior express consent, in violation of the Telephone Consumer Protection Act. According to the complaint, the Plaintiff has been an AT&T subscriber since at least November 1, 2008, and holder of his cellular telephone number, (904) XXX-8024, since that time. The Plaintiff was the called party and recipient of Defendant’s calls and text messages, as described herein. Between August 3, 2018 and the present, Defendant placed at least 10 automated calls and sent at least 2 text messages to Plaintiff's cellular telephone number using an automatic telephone dialing system or pre-recorded or artificial voice. The automated calls were initiated from several different telephone numbers, including (888) 912-4484, (754) 967-8487 and (407) 603-0495, and the text messages were sent from (916) 573-5898, which are telephone numbers assigned to Defendant. The calls and text messages were placed and sent regarding the telemarketing of vacation club and travel services product. As a result of each of the calls and text messages, Plaintiff and putative Class Members suffered an invasion of privacy, as well as particularized and concrete injuries, including the inducement of stress, anxiety, nervousness, embarrassment, distress, and/or aggravation. Plaintiff and putative Class Members also suffered out-of-pocket losses, including the monies paid to their wireless carriers for the receipt of such calls and text messages. Additionally, due to both the answered and unanswered calls placed and text messages sent by Defendant, the Plaintiff and putative Class Members suffered the expenditure of their time, exhaustion of their cellular telephone batteries, unavailability of their cellular telephones while Defendant's calls and text messages were incoming, and trespass upon their respective chattels, the lawsuit says. Premium Destinations LLC is in the travel agencies business.[BN] Attorneys for Plaintiff: John A. Yanchunis, Esq. Jonathan B. Cohen, Esq. MORGAN & MORGAN COMPLEX LITIGATION GROUP 201 N. Franklin St., 7th Floor Tampa, FL 33602 Telephone: (813) 223-5505 Facsimile: (813) 222-2434 E-mail: jyanchunis@forthepeople.com jcohen@forthepeople.com PROTHENA CORP: Two Securities Class Suits Consolidated ------------------------------------------------------ Prothena Corporation plc 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 the court has consolidated the cases Simon James v. Prothena Corporation plc, et al. and Granite Point Capital v. Prothena Corporation plc, et al. and is now entitled In re Prothena Corporation plc Securities Litigation. ase seeking to be appointed as the lead plaintiffs in that purported class action. That motion was granted on October 31, 2018, and that proceeding is now entitled In re Prothena Corporation plc Securities Litigation. On May 17, 2018, a purported class action lawsuit entitled Arkansas Teacher Retirement System v. Prothena Corporation plc, et al., Civil Action No. 18-cv-2865-WHA, was filed in the U.S. District Court for the Northern District of California against the Company and certain of its current and former officers; the plaintiff voluntarily dismissed that case on July 10, 2018. On July 5, 2018, another purported class action lawsuit, entitled Michael Ramezani v. Prothena Corporation plc, et al., Civil Action No. 3:18-cv-04035-WHA, was filed in the same court against the same parties; the plaintiff voluntarily dismissed that case on July 13, 2018. On July 16, 2018, an additional purported class action lawsuit, entitled Simon James v. Prothena Corporation plc, et al., Civil Action No. 18-cv-04261-JST, was filed in the same court against the same parties; the plaintiff voluntarily dismissed that case on August 7, 2018. On July 16, 2018, another purported class action lawsuit, entitled Granite Point Capital v. Prothena Corporation plc, et al., Civil Action No. 18-cv-06425, was filed against the same parties, but in the U.S. District Court for the Southern District of New York. The plaintiff in this case, as in the previously-filed cases, seeks compensatory damages, costs and expenses in an unspecified amount on behalf of a putative class of persons who purchased the Company's ordinary shares between October 15, 2015 and April 20, 2018, inclusive. The complaint alleges that the defendants violated federal securities laws by allegedly making false and misleading statements and omitting certain material facts in certain public statements and in the Company's filings with the U.S. Securities and Exchange Commission during the putative class period, regarding the clinical trial results and prospects for approval of the Company's NEOD001 drug development program. On September 17, 2018, the plaintiff in the Granite Point Capital case, together with the plaintiff in the previously-dismissed Simon James lawsuit, filed a motion with the court in the Granite Point Capital case seeking to be appointed as the lead plaintiffs in that purported class action. That motion was granted on October 31, 2018, and that proceeding is now entitled In re Prothena Corporation plc Securities Litigation. Prothena Corporation plc, a late-stage clinical biotechnology company, focuses on the discovery, development, and commercialization of novel immunotherapies for the treatment of diseases in the neuroscience and orphan categories. Prothena Corporation plc was incorporated in 2012 and is headquartered in Dun Laoghaire, Ireland. QUALITY SYSTEMS: Court Approves Settlement in Securities Fraud Suit ------------------------------------------------------------------- The United States District Court for the Central District of California, Southern Division, issued a Judgment and Order granting Final Approval of Settlement Agreement in the case captioned In re QUALITY SYSTEMS, INC. SECURITIES LITIGATION. Case No. SACV 13-01818-CJC-JPR. (C.D. Cal.). This matter came before the Court for hearing pursuant to the Order of this Court, dated July 30, 2018, on the application of the Settling Parties for approval of the Settlement set forth in the Stipulation of Settlement dated July 16, 2018 (Stipulation). Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the Court hereby affirms its determinations in the Preliminary Approval Order, which certified, for purposes of effectuating the Settlement, a Class defined as all persons or entities who purchased or otherwise acquired QSI common stock during the period from May 26, 2011 through July 25, 2012, inclusive, and were damaged thereby. With respect to the Class, the Court finds for the purposes of effectuating the Settlement that: (a) the Members of the Class are so numerous that joinder of all Class Members in the Litigation is impracticable; (b) there are questions of law and fact common to the Class; (c) the claims of Lead Plaintiffs are typical of the claims of the Class; (d) Lead Plaintiffs and their counsel have fairly and adequately represented and protected the interests of the Class Members; (e) the questions of law and fact common to the Class predominate over any questions affecting only individual Members of the Class; and (f) a class action is superior to other available methods for the fair and efficient adjudication of the controversy. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the Court certifies Lead Plaintiffs as representatives of the Class. Lead Counsel are also certified as counsel to Lead Plaintiffs and the Class in the Litigation. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the Court approves the Settlement set forth in the Stipulation and finds that: (a) the Stipulation and the Settlement contained therein are, in all respects, fair, reasonable and adequate; (b) there was no collusion in connection with the Stipulation; (c) the Stipulation was the product of informed, arm's-length negotiations among competent, able counsel; and (d) the record is sufficiently developed and complete to have enabled Lead Plaintiffs and Defendants to have adequately evaluated and considered their positions. A full-text copy of the District Court's November 19, 2018 Judgment and Order is available at https://tinyurl.com/y9zyg2dx from Leagle.com. Deerfield Beach Police Pension Fund, Individually and on Behalf of all Others Similarly Situated, Plaintiff, represented by Benjamin Galdston -- BenG@blbglaw.com -- Bernstein Litowitz Berger and Grossmann LLP. Quality Systems, Inc., Steven T Plochocki, Paul A Holt & Sheldon Razin, Defendants, represented by Peter Allen Wald -- peter.wald@lw.com -- Latham and Watkins LLP, Andrew Gray -- andrew.gray@lw.com -- Latham and Watkins LLP, Kathryn K. George -- kathryn.george@lw.com -- Latham and Watkins LLP, pro hac vice, Michele D. Johnson -- Emichele.johnson@lw.com -- Latham and Watkins LLP, Nicholas J. Siciliano -- nicholas.siciliano@lw.com -- Latham and Watkins LLP, pro hac vice & Whitney Bruder Weber -- whitney.weber@lw.com -- Latham and Watkins LLP. Fredric Firehammer, Interested Party, represented by Jeff S. Westerman -- jwesterman@jswlegal.com -- Westerman Law Corp & Jordanna G. Thigpen -- jthigpen@jjllplaw.com -- Johnson & Johnson LLP. QWEST CORP: Sales Practices Suit v. CenturyLink Ongoing ------------------------------------------------------- Qwest Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 13, 2018, for the quarterly period ended September 30, 2018, that the CenturyLink, Inc. continues to defend itself against a consolidated class action suit entitled, In Re: CenturyLink Sales Practices and Securities Litigation. In June 2017, McLeod v. CenturyLink, a putative consumer class action, was filed against CenturyLink, Inc. in the U.S. District Court for the Central District of California alleging that CenturyLink charged some of its retail customers for products and services they did not authorize. A number of other complaints asserting similar claims have been filed in other federal and state courts, as well. The lawsuits assert claims including fraud, unfair competition, and unjust enrichment. Also, in June 2017, Craig. v. CenturyLink, Inc., et al., a putative securities investor class action, was filed in U.S. District Court for the Southern District of New York, alleging that CenturyLink failed to disclose material information regarding improper sales practices, and asserting federal securities law claims. A number of other cases asserting similar claims have also been filed. Both the putative consumer class actions and the putative securities investor class actions have been transferred to the U.S. District Court for the District of Minnesota for coordinated and consolidated pretrial proceedings as In Re: CenturyLink Sales Practices and Securities Litigation. No further updates were provided in the Company's SEC report. Qwest Corporation, an integrated communications company, provides communications services to business and residential customers in Arizona, Colorado, Idaho, Iowa, Minnesota, Montana, Nebraska, New Mexico, North Dakota, Oregon, South Dakota, Utah, Washington, and Wyoming. The company was incorporated in 1911 and is based in Monroe, Louisiana. Qwest Corporation operates as a subsidiary of CenturyLink, Inc. RCR TOMLINSON: Faces Class Action in Australia Over Share Drop -------------------------------------------------------------- Ewen Hosie, writing for Australian Mining, reports that engineering firm RCR Tomlinson has requested an extension to its voluntary market suspension following news of a class action filed by a law firm on behalf of its shareholders. Litigators Quinn Emanuel Urquhart & Sullivan (Quinn Emanuel for short) filed the class action proceedings in the Supreme Court of New South Wales on November 16. The action relates to a large fall in RCR's share price that occurred in August this year. While RCR's share price had seen a gradual decline since April, it suffered a sharp fall throughout August; on July 28, RCR's share price was $2.12 but fell to $1.05 by September 3. The August drop was largely related to issues arising from the company's solar farm investments in Northern Queensland, which helped contribute to a statutory post-tax loss of $16.1 million in the 2018 financial year. The Daydream and Hayman solar farm projects have suffered cost overruns and time delays resulting in a cumulative write-down of $57 million on the original tendered margin. The year-to-date fall is even larger -- from the start of 2018 to today, RCR's share price has plunged over 70 per cent from $3.03 to just 85 cents. "It's unlikely that the recent alarming disclosures by the company could have come as a surprise to management -- if they did, that's worse," said Quinn Emanuel partner Damian Scattini. "RCR shareholders have seen a catastrophic decline in their share value." The class action pertains to shareholders who acquired ordinary shares in the company between August 11 2017 and July 27 2018. RCR initially filed a trading suspension on November 14 pending the release of its earnings in the 2019 financial year. It has now requested an extension of this suspension until whichever date comes first of either the company announcing its 2019 financial results or November 27. [GN] RITE AID: District Court Dismisses Josten Lawsuit ------------------------------------------------- District Judge Anthony J. Battaglia granted Defendant Rite Aid Corporation's motion to dismiss the case captioned ROBERT JOSTEN, on Behalf of Himself and All Others Similarly Situated, Plaintiff, v. RITE AID CORPORATION, Defendant, Case No. 18-cv-0152-AJB-JLB (S.D. Cal.). Rite Aid moved to dismiss plaintiff Robert Josten's complaint, asserting nearly identical arguments made in its motion to dismiss filed in a related case, Stafford v. Rite Aid Corp. The crucial missing piece in Josten's complaint, like Stafford's, is his failure to plead tolling with specificity. Plaintiff's claims are all based on the assertion that he was forced to pay an inflated copayment under his insurance plan because Rite Aid reported prescription drug prices to his insurance carrier that were not its "usual and customary" prices for those drugs. About 90% of all United States citizens are now enrolled in private or public health insurance plans that cover at least a portion of the costs of medical and prescription drug benefits. A feature of most of these health insurance plans is the shared cost of prescription drugs. Typically, when a consumer fills a prescription for a medically necessary prescription drug under his or her health insurance plan, the third-party payor (TPP) pays a portion of the cost and the consumer pays the remaining portion of the cost directly to the pharmacy in the form of a copayment, coinsurance, or deductible payment. In an effort to control their prescription drug costs, many insurance companies and TPPs require consumers to purchase generic prescription drugs when available because generic drugs often cost less than the brand-name version. Plaintiff alleged that he and the members of the Class are paying much more for certain generics than Rite Aid's cash-paying customers who fill their generic prescriptions through Rite Aid's discount generic drug program, called the "Rx Savings [P]rogram" ("Rx Program" or "RSP"), without using health insurance. Plaintiff alleged causes of action for violations of: (1) Negligent Misrepresentation; (2) Unjust Enrichment; (3) Unfair Competition law ("UCL") based on unfair acts and practices; (4) UCL based on unlawful acts and practices; (5) Consumer Legal Remedies Act ("CLRA"); and (6) Declaratory and Injunctive Relief. In his prayer for relief, Plaintiff requested the Court certify his action as a class action, award compensatory, consequential, and general damages, grant permanent injunctive relief and award statutory treble, punitive, or exemplary damages, among other things. Rite Aid argued that the complaint should be dismissed for the following reasons: (1) Plaintiff failed to plead any element of the negligent misrepresentation claim; (2) Plaintiff failed to plead CLRA and UCL standing; (3) Plaintiff failed to plead a CLRA claim; (4) Plaintiff failed to plead a UCL claim; (5) Plaintiff wrongfully makes a claim for unjust enrichment; (6) Plaintiff failed to overcome third-party issues; and (7) some of Plaintiff's claims are time-barred. Upon analysis of the facts and evidence presented, the Court finds Josten plausibly alleged claims for negligent misrepresentation and under the UCL's unfair prong. Further, Josten has alleged standing under the UCL and the CLRA. However, the Court also finds that Josten failed to specifically allege the discovery of the scheme such that his claims under the CLRA, for negligent misrepresentation, and unjust enrichment cannot be tolled as currently pled. Accordingly, those claims are dismissed leaving his UCL unlawful claim to be dismissed as well since he has not pleaded an underlying violation. Nevertheless, the Court grants Josten leave to amend. The first amended complaint is due by Dec. 11, 2018. A copy of the Court's Order dated Nov. 20, 2018 is available at https://bit.ly/2rkwhWM from Leagle.com. Robert Josten, on behalf of himself and all others similarly situated,, Plaintiff, represented by Erin Green Comite , Scott+Scott, Attorneys at Law, LLP, pro hac vice, Hal D. Cunningham -- hcunningham@scott-scott.com -- Scott Scott LLP, Joseph P. Guglielmo -- jguglielmo@scott-scott.com -- Scott+Scott, Attorneys at Law, LLP, pro hac vice, Julie A. Kearns -- jkearns@scott-scott.com -- Scott+Scott Attorneys at Law LLP & Walter W. Noss -- wnoss@scott-scott.com -- ScottScott LLP. Rite Aid Corporation, Defendant, represented by Joseph H. Bias -- joseph.bias@morganlewis.com -- Morgan Lewis & Bockius & Tera Marie Heintz – tera.heintz@morganlewis.com -- Morgan, Lewis & Bockius. SANTANDER HOLDINGS: Merits Discovery in Deka Suit Still Stayed -------------------------------------------------------------- Santander Holdings USA, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 13, 2018, for the quarterly period ended September 30, 2018, that the court has vacated the order staying the Deka Investment GmbH et al. v. Santander Consumer USA Holdings Inc. et al. suit, but ordered that merits discovery be stayed until the court ruled on the issue of class certification. Santander Consumer USA Inc. (SC) is a defendant in a purported securities class action lawsuit (the "Deka Lawsuit") in the United States District Court, Northern District of Texas, captioned Deka Investment GmbH et al. v. Santander Consumer USA Holdings Inc. et al., No. 3:15-cv-2129-K. The Deka Lawsuit is against SC, certain of its current and former directors and executive officers and certain institutions that served as underwriters in SC's initial public offering (the "IPO"), including Santander Investment Securities Inc. (SIS), on behalf of a class consisting of those who purchased or otherwise acquired SC securities between January 23, 2014 and June 12, 2014. The amended class action complaint alleges, among other things, that the IPO registration statement and prospectus and certain subsequent public disclosures violated federal securities laws by containing misleading statements concerning SC's ability to pay dividends and the adequacy of SC's compliance systems and oversight. In December 2015, SC and the individual defendants moved to dismiss the lawsuit, which was denied. In December 2016, the plaintiffs moved to certify the proposed classes. In July 2017, the court entered an order staying the Deka Lawsuit pending the resolution of the appeal of a class certification order in In re Cobalt Int'l Energy, Inc. Sec. Litig., No. H-14-3428, 2017 U.S. Dist. LEXIS 91938 (S.D. Tex. June 15, 2017). In October 2018, the court vacated the order staying the Deka Lawsuit but ordered that merits discovery be stayed until the court ruled on the issue of class certification. Santander Holdings USA, Inc. operates as the holding company for Santander Bank, National Association that provides various banking products and services primarily in the Mid-Atlantic and Northeastern United States. The company was founded in 1984 and is headquartered in Boston, Massachusetts. Santander Holdings USA, Inc. is a subsidiary of Banco Santander, S.A. SANTANDER HOLDINGS: Settlement in Parmelee Suit Wins Initial Okay ----------------------------------------------------------------- Santander Holdings USA, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 13, 2018, for the quarterly period ended September 30, 2018, that the court has entered an order granting the motion for preliminary approval of the settlement of the Parmelee v. Santander Consumer USA Holdings Inc. et al. lawsuit. Santander Consumer USA Inc. (SC) is a defendant in two purported securities class action lawsuits filed in March and April 2016 in the United States District Court, Northern District of Texas. The lawsuits were consolidated and are now captioned Parmelee v. Santander Consumer USA Holdings Inc. et al., No. 3:16-cv-783. The lawsuits were filed against SC and certain of its current and former directors and executive officers on behalf of a class consisting of all those who purchased or otherwise acquired SC securities between February 3, 2015 and March 15, 2016. The complaint alleges that SC violated federal securities laws by making false or misleading statements, as well as failing to disclose material adverse facts, in its periodic reports filed under the Exchange Act and certain other public disclosures, in connection with, among other things, SC's change in its methodology for estimating its ACL and the correction of such ACL for prior periods. In January 2018, the court granted SC's motion to dismiss the lawsuit as to defendant Ismail Dawood (SC's former Chief Financial Officer) and denied the motion as to all other defendants. In July 2018, the lead plaintiffs filed an unopposed motion for preliminary approval of a class action settlement of the lawsuit for a cash payment of $9.5 million. In September 2018, the court entered an order granting the motion for preliminary approval of the settlement of the lawsuit. Santander Holdings USA, Inc. operates as the holding company for Santander Bank, National Association that provides various banking products and services primarily in the Mid-Atlantic and Northeastern United States. The company was founded in 1984 and is headquartered in Boston, Massachusetts. Santander Holdings USA, Inc. is a subsidiary of Banco Santander, S.A. SEAWORLD ENTERTAINMENT: Discovery Ongoing in Baker Class Suit ------------------------------------------------------------- SeaWorld Entertainment, 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 discovery is currently ongoing in the case entitled, Baker v. SeaWorld Entertainment, Inc., et al., with the trial scheduled for 2019. On September 9, 2014, a purported stockholder class action lawsuit consisting of purchasers of the Company's common stock during the periods between April 18, 2013 and August 13, 2014, captioned Baker v. SeaWorld Entertainment, Inc., et al., was filed in the U.S. District Court for the Southern District of California against the Company, the Chairman of the Company's Board, certain of its executive officers and Blackstone. On February 17, 2015, Court-appointed Lead Plaintiffs, Pensionskassen For Borne―Og Ungdomspedagoger and Arkansas Public Employees Retirement System, together with additional plaintiffs, Oklahoma City Employee Retirement System and Pembroke Pines Firefighters and Police Officers Pension Fund (collectively, "Plaintiffs"), then filed an amended complaint against the Company, the Chairman of the Company's Board, certain of its executive officers, Blackstone, and underwriters of the initial public offering and secondary public offerings. The amended complaint alleges, among other things, that the prospectus and registration statements filed contained materially false and misleading information in violation of the federal securities laws and seeks unspecified compensatory damages and other relief. Plaintiffs contend that defendants knew or were reckless in not knowing that Blackfish was impacting SeaWorld's business at the time of each public statement. On May 29, 2015, the Company and the other defendants filed motions to dismiss the amended complaint, which the Court granted on March 31, 2016. On May 31, 2016, Plaintiffs filed a second amended consolidated class action complaint ("Second Amended Complaint"), which, among other things, no longer names the Company's Board or underwriters as defendants. The Court later denied a renewed motion to dismiss the Second Amended Complaint. In May 2017, Plaintiffs filed a motion for class certification which the Court granted on November 29, 2017. On December 13, 2017, Defendants filed a petition for permission to appeal the Court's class certification order with the United States Court of Appeals for the Ninth Circuit, which was denied on June 28, 2018. Discovery is currently ongoing with the trial scheduled for 2019. No further updates were provided in the Company's SEC report. SeaWorld Entertainment, Inc., together with its subsidiaries, operates as a theme park and entertainment company in the United States. The company operates marine-life theme park under the SeaWorld brand in San Diego, Orlando, and San Antonio; Busch Gardens theme parks, which are family-oriented destinations with foreign geographic settings in Tampa and Williamsburg; and water parks under the Aquatica brand name in Orlando, San Antonio, and San Diego. SeaWorld Entertainment, Inc. was founded in 1959 and is headquartered in Orlando, Florida. SEAWORLD ENTERTAINMENT: Trial in Anderson Suit Set for Oct. 2019 ---------------------------------------------------------------- SeaWorld Entertainment, 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 trial in the case, Marc Anderson, et. al., v. SeaWorld Parks & Entertainment, Inc., is currently scheduled for October 2019. On April 13, 2015, a purported class action was filed in the Superior Court of the State of California for the City and County of San Francisco against SeaWorld Parks & Entertainment, Inc., captioned Marc Anderson, et. al., v. SeaWorld Parks & Entertainment, Inc., (the "Anderson Matter"). The putative class consisted of all consumers within California who, within the past four years, purchased tickets to SeaWorld San Diego. The complaint (as amended) alleges causes of action under the California False Advertising Law, California Unfair Competition Law and California CLRA. Plaintiffs' claims are based on their allegations that the Company misrepresented the physical living conditions and care and treatment of its orcas, resulting in confusion or misunderstanding among ticket and orca plush purchasers with intent to deceive and mislead the plaintiffs and purported class members. The complaint seeks actual damages, equitable relief, attorneys' fees and costs. Based on plaintiffs' definition of the class, the amount in controversy exceeds $5.0 million, but the liability exposure is speculative. On May 14, 2015, the Company removed the case to the United States District Court for the Northern District of California. The Company filed a motion for summary judgment on October 30, 2017 which the Court granted in part and denied in part. All three named plaintiffs continue to have claims for individual restitution and injunctive relief. The case is in the preliminary stages of discovery. On May 23, 2018, the Plaintiffs represented to the Court that they will not file a motion for class certification. Trial is currently scheduled for October 2019. No further updates were provided in the Company's SEC report. SeaWorld Entertainment, Inc., together with its subsidiaries, operates as a theme park and entertainment company in the United States. The company operates marine-life theme park under the SeaWorld brand in San Diego, Orlando, and San Antonio; Busch Gardens theme parks, which are family-oriented destinations with foreign geographic settings in Tampa and Williamsburg; and water parks under the Aquatica brand name in Orlando, San Antonio, and San Diego. SeaWorld Entertainment, Inc. was founded in 1959 and is headquartered in Orlando, Florida. SECURUS TECH: Robert Teel Appointed Class Counsel in Romero Suit ---------------------------------------------------------------- In the case, JUAN ROMERO; FRANK TISCARENO; and KENNETH ELLIOTT, on behalf of themselves and all others similarly situated, Plaintiffs, v. SECURUS TECHNOLOGIES, INC., Defendant, Case No. 16cv1283 JM (MDD) (S.D. Cal.), Judge Jeffrey T. Miller of the U.S. District Court for the Southern District of California (i) denied the Plaintiffs' motion for partial summary judgment; and (ii) granted in part their renewed motion for class certification. Romero, Tiscareno, and Elliot filed the putative class action on May 27, 2016, alleging Securus unlawfully recorded detainee-attorney calls. Securus provides inmate communication services for correctional facilities throughout California. The Plaintiffs are two former inmates and a criminal defense attorney, all of whom used Securus' telephone systems to make calls to and from certain correctional facilities in California and allege that their calls were recorded. On Oct. 10, 2017, the Plaintiffs filed a motion for class certification. The Court denied the motion, finding that the Plaintiffs failed to sufficiently identify an ascertainable class as the proposed class may have included anywhere between 22 and thousands of members. On April 20, 2018, Securus filed a motion to alter or amend the order denying the Plaintiffs' motion for class certification arguing that, contrary to the court's order, Securus had produced call logs by the time briefing on the Plaintiffs' motion for class certification was complete. The Court denied Securus' motion, stating that Securus could raise any arguments regarding factual discrepancies in its opposition to the Plaintiffs' renewed motion for class certification. Presently before the Court are the Plaintiffs' motion for partial summary judgment, and their renewed motion for class certification. The Defendant opposes both motions. The Plaintiffs seek to certify the class of every person who was a party to any portion of a conversation between a person who was in the physical custody of a law enforcement officer or other public officer in California, and that person's attorney, on a telephone number designated or requested not to be recorded, any portion of which was eavesdropped on or recorded by Defendant Securus Technologies, Inc. by means of an electronic device during the period from July, 10, 2008 to the applicable opt-out date, inclusive. They seek class certification pursuant to Rule 23(b)(3). With respect to their motion for partial summary judgment, the Plaintiff seek partial summary judgment on one element of their claims -- whether violation of California Penal Code Section 636(a) requires Securus to intentionally record a conversation between a detainee and his or her attorney without permission. They argue that violation of California Penal Code Secion 636(a) does not require a defendant to intentionally record a conversation between a detainee and his or her attorney without permission. Securus makes two arguments in opposition. First, Securus argues that ruling on Pthe laintiffs' motion would be an advisory opinion. Second, Securus argues that Section 636 has an intent requirement. Judge Miller denied the Plaintiffs' motion for summary judgment as Section 636(a) is not a strict liability offense and the Plaintiffs fail to establish there is no genuine issue of material fact as to whether Securus had the intent necessary to violate the statute. The Judge granted in part and denied in part their renewed motion for class certification. The Plaintiffs' requests for monetary damages under CIPA are certified pursuant to Rule 23(b)(3) and their requests for injunctive and declaratory relief are certified pursuant to Rule 23(b)(2). The Judge certified the class is of every person who was a party to any portion of a conversation between a person who was in the physical custody of a law enforcement officer or other public officer in California, and that person's attorney, on a telephone number designated or requested not to be recorded, any portion of which was eavesdropped on or recorded by Defendant Securus Technologies, Inc. by means of an electronic device during the period from July, 10, 2008 to the applicable opt-out date, inclusive. The Law Office of Robert L. Teel, the Law Offices of Ronald A. Marron, APLC, and Foley & Lardner, LLP are appointed as the class counsel; and Plaintiffs Romero, Tiscareno, and Elliot are appointed as the class representatives. A full-text copy of the Court's Nov. 21, 2018 Order is available at https://is.gd/AjLjfH from Leagle.com. Juan Romero, on behalf of himself, and all others similarly situated, Plaintiff, represented by Geoffrey M. Raux -- graux@foley.com -- Foley & Lardner LLP, pro hac vice, Kas L. Gallucci -- admin@consumersadvocates.com -- Law Offices of Ronald A. Marron, Michael Houchin -- mike@consumersadvocates.com -- Law Offices of Ronald A. Marron, Robert L. Teel -- lawoffice@rlteel.com -- Law Office of Robert L. Teel, Ronald Marron -- ron@consumersadvocates.com -- Law Office of Ronald Marron & Adam Belsey -- adam@consumersadvocates.com -- Law Offices of Ronald A. Marron. Frank Tiscareno, on behalf of himself, and all others similarly situated & Kenneth Elliott, Plaintiffs, represented by Geoffrey M. Raux, Foley & Lardner LLP, pro hac vice, Kas L. Gallucci, Law Offices of Ronald A. Marron, Michael Houchin, Law Offices of Ronald A. Marron, Robert L. Teel, Law Office of Robert L. Teel, Ronald Marron, Law Office of Ronald Marron, Eileen Regina Ridley, Foley and Lardner LLP, J. Mark Waxman, Foley & Lardner LLP & Nicholas J. Fox, Foley & Lardner, LLP. Securus Technologies, Inc., Defendant, represented by Adam R. Fox -- adam.fox@squirepb.com -- Squire Patton Boggs (US) LLP. SELECT INCOME: Schwartz Sues over Misleading Report, Merger ----------------------------------------------------------- MELVIN SCHWARTZ, Individually and on Behalf of All Others Similarly Situated, the Plaintiff, vs. SELECT INCOME REIT, DONNA D. FRAICHE, WILLIAM A. LAMKIN, JEFFREY P. SOMERS, ADAM D. PORTNOY, and DAVID M. BLACKMAN, the Defendants, Case No. 1:18-cv-10790 (S.D.N.Y., Nov. 19, 2018), alleges that Defendants violated Section 14(a) and 20(a) of the Securities Exchange Act of 1934 in connection with a proposed merger of the Company with Government Properties Income Trust. According to the complete, on September 14, 2018, the Company announced that it had entered into an agreement and plan of merger with Government Properties, pursuant to which the Company's shareholders will receive 1.04 Government Properties common shares per Select Income common share. Once the Proposed Transaction is consummated, Government Properties will change its ticker symbol to "OPI." The special meeting of shareholders to vote on whether to approve the Proposed Transaction is currently scheduled to take place on December 20, 2018. On October 1, 2018 the Board authorized the filing of a materially incomplete and misleading registration statement on form S-4 by Government Properties with the SEC in connection with the Proposed Transaction (subsequently amended on October 26, 2018, November 9, 2018, and November 15, 2018). Thereafter, on November 16, 2018, the Company filed a joint materially incomplete and misleading proxy statement on Form DEFM14A with the SEC, which omits material information regarding the Proposed Transaction, the lawsuit says.[BN] Attorneys for Plaintiff Joshua M. Lifshitz, Esq. LIFSHITZ & MILLER LLP 821 Franklin Avenue, Suite 209 Garden City, NY 11530 Telephone: (516) 493-9780 Facsimile: (516) 280-7376 E-mail: jml@jlclasslaw.com SEPHORA USA: Sued over Storage of Biometrics Information -------------------------------------------------------- AUSTE SALKAUSKAITE, individually and on behalf of similarly situated individuals, the Plaintiff, vs. SEPHORA USA, INC., a Delaware corporation, and MODIFACE, INC., a Toronto corporation, the Defendants, Case No. 2018CH14379 (Ill. Cir. Ct., Cook Cty., Nov. 19, 2018), seeks to recover damages and other legal and equitable remedies resulting from the illegal actions of Defendants in capturing, collecting, storing, using, and transmitting Plaintiff's biometrics, and those of thousands of consumers throughout the state of Illinois, without informed written consent, and without informing them through a publicly available written policy of how it was going to store and dispose of this irreplaceable information, in direct violation of the Illinois Illinois Biometric Information Privacy Act. According to the complaint, the Defendants failed to honestly inform their customers, including Plaintiff, the unlawful nature of the face scanning system in which they would be required to participate in or knowingly be subjected to, thus failing to obtain the necessary consent to disseminate their biometrics to third parties; failing to maintain a lawful biometric storage program which deletes biometric information in the proscribed period; failing to provide the required disclosures at the time of collection; and failing to provide a retention and destruction schedule. To the extent Defendants are still retaining Plaintiffs biometrics, such retention is unlawful and an ongoing infringement of her right to privacy regarding her biometrics as afforded by the BIPA. The Plaintiff would not have provided her biometrics to Defendants had she known that Defendants would retain such information for an indefinite period without her consent or subject such information to unauthorized disclosure to unknown third parties, the lawsuit says.[BN] Attorneys for Plaintiff and the Putative Class: Myles McGuire, Esq. Jad Sheikali, Esq. David L. Gerbie, Esq. MCGUIRE LAW, P.C. 55 W. Wacker Drive, 9th Fl. Chicago, IL 60601 Telephone: (312) 893-7002 E-mail: mmcguire@mcgpc.com jsheikali@mcgpc.com dgerbie@mcgpc.com SERENDIPITY 3: Website not Accessible to Blind, Garey Says ---------------------------------------------------------- KEVIN GAREY, on behalf of himself and all others similarly situated, the Plaintiffs, vs. SERENDIPITY 3, INC., the Defendant, Case No. 1:18-cv-10511 (S.D.N.Y., Nov. 13, 2018), seeks to put an end to systemic civil rights violations committed by Defendant, against sight-impaired, disabled individuals under the Americans with Disability Act. According to the complaint, the Plaintiff is a visually-impaired and legally blind person who requires screen-reading software to access and read website content using his computer. The Plaintiff uses the terms "blind" or "visually-impaired" to refer to all individuals with visual impairments who meet the legal definition of blindness in that they have a visual acuity with correction of less than or equal to 20/200. Some blind individuals who meet this definition have limited vision. Based on a 2010 U.S. Census Bureau report, approximately 8.1 million individuals in the United States are visually impaired, including 2.0 million who are blind, and according to the American Foundation for the Blind's 2015 report, approximately 400,000 visually impaired persons live in the State of New York. The Plaintiff commences this civil rights action against the Defendants for the Defendants' failure to design, construct, maintain, and operate its website to be fully accessible to and independently usable by the Plaintiff and other similarly situated 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 ADA. Because the Defendants' website is not equally accessible to blind and visually-impaired individuals, it violates the ADA, the lawsuit says.[BN] Attorneys for Plaintiff: 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 SERVICE EMPLOYEES: Oregon Civil Servants Sue Over Union Fees ------------------------------------------------------------ The National Right to Work Legal Defense Foundation on Nov. 20 disclosed that a group of Oregon public employees have filed a federal class action complaint against two public sector unions and their employers. The lawsuit seeks to end union officials' "window period" policies that block thousands of workers from exercising their constitutional right under the U.S. Supreme Court Janus decision to refrain from financially supporting a union. The case was filed at the United States District Court for the District of Oregon by ten public employees with free legal representation from staff attorneys at the National Right to Work Legal Defense Foundation and the Freedom Foundation. The lawsuit names as defendants Service Employees International Union (SEIU) Local 503, Oregon Public Employees Union; American Federation of State, Local, and Municipal Employees (AFSCME) Local 75; and the employers who continue to extract money from the workers' wages under the "window period" policies without the workers' consent. After the Supreme Court decision in Janus v. AFSCME, briefed and won by Foundation staff attorneys, held that public sector workers cannot be forced to pay union fees without their affirmative consent, each plaintiff employee resigned his or her union membership and notified the union and their employer that they no longer authorized deductions of union dues and fees from their paychecks. However, union officials refused to allow the workers to stop paying union dues. Instead, union officials informed them that they could only stop payments during a short annual "window period" of just a few days. Despite the workers' asserting their rights under Janus, the government agencies continue to deduct union dues from their wages at the unions' behest. The case challenges the union officials' "window period" policies as a violation of the First Amendment. In the landmark Janus decision, the Court ruled that it is unconstitutional to require government workers to pay any union dues or fees as a condition of employment. Additionally, the Court clarified that no union dues or fees can be taken from those workers without their affirmative consent and knowing waiver of their First Amendment right to refrain from financially supporting a union. The class action lawsuit argues that the workers' deduction authorizations signed before Janus were not and could not have been knowing waivers of their First Amendment rights, as the Janus protections had not been recognized at the time. The suit also argues that the unions' policies restricting workers' First Amendment rights to a window of time is unconstitutional. The complaint asks that the court certify classes to include all employees under the monopoly bargaining contracts of SEIU Local 503 and AFSCME Council 75 who were blocked from exercising their First Amendment rights when they resigned union membership and attempted to halt dues deductions after the Janus decision. Only the union officials know the exact number of employees who have attempted to but have been blocked by the policies, but the classes potentially include hundreds or thousands of victims. "These public sector workers join many others across the country in standing up to Big Labor's coercive tactics," commented National Right to Work Foundation President Mark Mix. "Union officials have a long history of manipulating ‘window period' schemes, arbitrary union-enacted limitations trapping workers into forced dues, and other obstacles designed to block individuals from exercising their constitutional rights. The Foundation's victory in Janus at the Supreme Court provided much-needed protection, but as this case shows union bosses are now defying the Supreme Court to continue their abusive practices." National Right to Work Foundation staff attorneys have filed similar class action lawsuits enforcing the Janus ruling across the country, and are receiving more calls from workers seeking to exercise their rights under the Janus precedent. To assist public employees in learning about their First Amendment rights under Janus, the Foundation established a special website: MyJanusRights.org. The National Right to Work Legal Defense Foundation is a nonprofit, charitable organization providing free legal aid to employees whose human or civil rights have been violated by compulsory unionism abuses. The Foundation, which can be contacted toll-free at 1-800-336-3600, assists thousands of employees in more than 250 cases nationwide per year. [GN] SOLID BIOSCIENCES: Watkins Class Action Voluntarily Dismissed ------------------------------------------------------------- Solid Biosciences Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 13, 2018, for the quarterly period ended September 30, 2018, that Mr. James Watkins voluntarily dismissed his claims without prejudice to his ability to participate in any putative class action as an absent class member. On March 27, 2018, James Watkins, a purported stockholder of the company, filed a putative class action complaint alleging violations of the federal securities laws, in the United States District Court for the District of Massachusetts (Case No. 18-10587), against the company, Ilan Ganot, its Chief Executive Officer, Jennifer Ziolkowski, its Chief Financial Officer, and the underwriters in its initial public offering, J.P. Morgan Securities LLC, Goldman Sachs & Co. LLC, Leerink Partners, LLC, Nomura Securities Co., LLC and Chardan Capital Markets LLC. The plaintiff in this suit claims to represent purchasers of the company's common stock during the period from January 25, 2018 to March 14, 2018 and seeks unspecified damages arising out of the alleged failure to disclose risks associated with toxicity and potential for adverse events related to the company's lead product candidate. On May 29, 2018, the plaintiff, Mr. Watkins, and Ashish Bhandari, another purported stockholder, filed separate motions each seeking his appointment as lead plaintiff and approval of his selected lead counsel. On June 5, 2018, Mr. Watkins withdrew his motion. On August 14, 2018, Mr. Bhandari withdrew his motion. On October 16, 2018, Mr. Watkins voluntarily dismissed his claims without prejudice to his ability to participate in any putative class action as an absent class member. Solid Biosciences Inc. engages in identifying and developing therapies for duchenne muscular dystrophy in the United States. The company was founded in 2013 and is headquartered in Cambridge, Massachusetts. SOUTHSTAR LLC: Thomas Seeks Overtime Pay ---------------------------------------- JAMES THOMAS, individually and on behalf of all others similarly situated, the Plaintiff, vs. SOUTHSTAR LLC, the Defendant, Case 4:18-cv-00937-A (N.D. Tex., Nov. 20, 2018), alleges that Defendant failed to pay Plaintiff in accordance with the Fair Labor Standards Act. Specifically, Plaintiff was not paid time-and-one-half of his regular rate of pay for all hours worked in excess of 40 hours per workweek. Rather, Defendant misclassified Plaintiff as exempt from the requirements of the Fair Labor Standards Act and paid him primarily on a salaried basis and without regard to the number of hours Plaintiff actually worked. According to the complaint, the Plaintiff and Class Members are Defendant's current and former "Warehouse Supervisors" (or individuals who performed similar duties but were employed under distinct titles) and were paid primarily on salaried basis and/or not compensated for all hours worked, including overtime hours. While employed in this capacity, the Plaintiff was employed as a "Warehouse Supervisor" for Defendant at a Tarrant County warehouse that supplies groceries to Kroger stores in North Texas. In this capacity, the Plaintiff was primarily responsible for overseeing Defendant's shipping services and was a task, rather than people, manager. The Plaintiff did not possess the actual authority to hire, fire, or discipline employees. Defendant maintains a human resource department that is responsible for such "executive" functions. Plaintiff was also responsible for other routine and nondiscretionary duties associated with providing Defendant's services to Defendant’s clients, such as Kroger. Plaintiff was not employed in a recognized "administrative" capacity as he did not exercise independent judgment and discretion in performing these job duties but was subject to the guidelines, command and control of an Operations Manager (or individuals who performed similar supervisory duties over Plaintiff and the Class Members under distinct titles). The Plaintiff was neither required to possess a professional degree nor to have obtained a particular educational level in order to be employed by Defendant in this capacity. Consequently, the Plaintiff was not employed in a "professional" capacity as recognized by the FLSA, the lawsuit says. SouthStar LLC operates as a commercial real estate development company. The company focuses on commercial and mixed use developments.[BN] Attorneys for Plaintiff: Jay Forester, Esq. D. Matthew Haynie, Esq. FORESTER HAYNIE PLLC 1701 N. Market Street, Suite 210 Dallas, TX 75202 Telephone: (214) 210-2100 Facsimile: (214) 346-5909 SPAR GROUP: Appeal in Hogan Suit Pending ---------------------------------------- SPAR Group, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 19, 2018, for the quarterly period ended September 30, 2018, that the company is currently awaiting the decision of the U.S. Court of Appeals for the First Circuit on its appeal from a class action case ruling. Paradise Hogan was engaged by and provided services to SBS as an independent contractor pursuant to the terms of an "Independent Contractor Master Agreement" with SBS (prepared solely by SBS) acknowledging his engagement as an independent contractor. On January 6, 2017, Hogan filed suit against SBS and SPAR Group, Inc. (SGRP) (and part of the Company), styled Civil Action No. 1:17-cv-10024-LTS, in the U.S. District Court for District of Massachusetts. Hogan initially asserted claims on behalf of himself and an alleged nationwide class of similarly situated individuals who provided services to SBS and SGRP as independent contractors. Hogan alleged that he and other alleged class members were misclassified as independent contractors, and as a result of this purported misclassification, Hogan asserted claims on behalf of himself and the alleged Massachusetts class members under the Massachusetts Wage Act and Minimum Wage Law for failure to pay overtime and minimum wages, as well as state law claims for breach of contract, unjust enrichment, quantum meruit, and breach of the covenant of good faith and fair dealing. In addition, Hogan asserted claims on behalf of himself and the nationwide class for violation of the Fair Labor Standards Act's overtime and minimum wage provisions. On March 28, 2017, the Company moved to refer Hogan's claim to arbitration pursuant to his agreement, to dismiss or stay Hogan's case pending arbitration, and to dismiss Hogan's case for failure to state a specific claim upon which relief could be granted. On November 13, 2017, the Court convened a status conference call with the parties to discuss the impact on the case of the Supreme Court's pending decision in Epic Systems Corp. v. Lewis, in which the Supreme Court heard arguments in October 2017 and ultimately will decide whether arbitration clauses that include a waiver of a worker's right to bring or participate in a class action violate the National Labor Relations Act. On March 12, 2018, the Court denied both defendants' Motion to Dismiss for failure to state a claim, denied the Motion to Compel Arbitration as to SGRP, denied the Motion to Stay as to SGRP, and allowed the Motion to Stay as to SBS pending the outcome of the Supreme Court's decision in Epic Systems), which (depending on the Supreme Court's ruling) could result in all SBS disputes being sent to arbitration. On April 24, 2018, SGRP filed a notice of appeal with the First Circuit of the District Court's decision. The Parties have agreed to stay the District Court litigation pending the First Circuit's decision on SGRP's appeal. Briefing on SGRP's appeal closed on August 8, 2018 and the appeal hearing was heard by the First Circuit on September 11, 2018. SGRP is currently awaiting the First Circuit's decision on its appeal. If SGRP's appeal is unsuccessful, SGRP will vigorously defend itself against all claims. SPAR Group, Inc., together with its subsidiaries, provides merchandising and marketing services worldwide. SPAR Group, Inc. was founded in 1967 and is headquartered in White Plains, New York. SPITZER INDUSTRIES: Court Denies Bid to Alter Judgment in Sarabia ----------------------------------------------------------------- The United States District Court for the Southern District of Texas, Houston Division, issued a Memorandum and Order denying Objectors' Motion for Relief from Judgment or Motion to Alter or Amend Judgment in the case captioned AGAPITO SARABIA, et al, Plaintiffs, v. SPITZER INDUSTRIES, INC., Defendant. Civil Action No. 4:17-CV-2092. (S.D. Tex.). Agapito Sarabia filed suit against Spitzer Industries, Inc., on behalf of himself and other similarly situated parties. The Plaintiffs are a group of welders who alleged that the Defendant misclassified them as independent contractors and failed to pay them overtime compensation. The Plaintiffs' and Defendant's counsel agreed on the settlement after a day-long mediation with an experienced FLSA mediator. They state that the settlement award represents more than one hundred percent (100%) of the overtime compensation allegedly owed to the Class Members by Defendant. The eleven Objectors now argue that the Plaintiffs' class counsel never gave them notice of the settlement, notice that they had the opportunity to object, or any opportunity to provide input into the settlement negotiations. They also argue that the Court should not have approved the settlement because: (1) there was no bona fide dispute present in this case; and (2) the settlement was not fair or reasonable. Federal Rule of Civil Procedure 60 states: "On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b) (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party (4) the judgment is void (5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable or (6) any other reason that justifies relief." The Court finds that the Objectors have not met the high standards of either Rule 59(e) or Rule 60. As a starting point, the Court is mindful that there is a strong presumption that the Plaintiffs' counsel validly agreed to the settlement on behalf of the class. An attorney of record is presumed to have authority to compromise and settle litigation on behalf of his client, and a judgment entered upon by the attorney of record will be set aside only upon affirmative proof of the party seeking to vacate the judgment that the attorney had no right to consent to its entry. Although the Objectors express legitimate concerns about communications with their attorneys, they have not explicitly argued that their attorneys lacked authority to enter into the settlement or offered any affirmative proof thereof. Indeed, four of the Objectors specifically authorized class representative Sarabia and Plaintiffs' class counsel to make all decisions regarding this litigation, including all decisions regarding settlement. Accordingly, there is a strong presumption that Plaintiffs' counsel had authority to consent to the settlement on behalf of the class. The Objectors have not shown that the Court committed made any manifest error of law or fact or manifest injustice in approving the settlement. Nor have they provided new evidence that warrants reconsideration of the judgment. In order to approve a settlement of FLSA claims, the Court must determine: (1) whether a bona fide dispute exists between the parties, (2) whether the settlement agreement is a fair and reasonable resolution of the dispute, and (3) whether the requested attorney's fees are fair and reasonable. The Plaintiffs have also offered evidence that there is a bona fide dispute about the number of hours that the class members actually worked because many of their pay records were destroyed or missing. Objectors' only counter evidence consists of a single objector's business records and affidavit describing the hours that he worked. This is inadequate to establish that there was no bona fide dispute over Plaintiffs' hours. Plaintiffs also argue that there is a bona fide dispute over whether they were independent contractors or employees. Throughout this litigation, the Defendant has consistently denied that the Plaintiffs were employees. Although the Objectors disagree, the affidavits of class members describing their working conditions are not, as they claim, adequate to establish as a matter of law that the Plaintiffs were employees. As the parties discussed at the October 30, 2018 hearing, there are numerous factual disputes about Plaintiffs' status. Accordingly, Objectors have failed to show that the Court committed a manifest error of law or fact in concluding that the settlement resolved bona fide disputes between the parties. There is no evidence that the settlement was obtained by fraud or collusion. The Plaintiffs and the Defendant argue that the case was complex and would have resulted in long and expensive litigation. Indeed, when the parties settled, the case was already approximately ten months old and would have continued for at least fourteen more months had they gone to trial. Moreover, there were a number of critical issues in dispute, including whether the Plaintiffs were independent contractors or employees and whether the alleged violations of the FLSA were willful. It was therefore uncertain whether or how much Plaintiffs would have been able to recover absent settlement. A full-text copy of the District Court's November 19, 2018 Order is available at https://tinyurl.com/ycbxmen9 from Leagle.com. Agapito Sarabia, Plaintiff, represented by Andrew Wells Dunlap -- adunlap@mybackwages.com -- Josephson Dunlap Law Firm, Richard Mark Schreiber -- rschreiber@mybackwages.com -- Josephson Dunlap Law Firm & Michael A. Josephson -- mjosephson@mybackwages.com -- Josephson Dunlap Law Firm. Pascual Rosario, Plaintiff, represented by Kenneth T. Ward , Attorney at Law, 9639 Hillcroft St # 864 Houston, TX 77096-3805 & Michael A. Josephson , Josephson Dunlap Law Firm. Desiderio Donan, Plaintiff, represented by Kenneth T. Ward , Attorney at Law. Spitzer Industries, Inc., Defendant, represented by John Michael Rose -- mrose@lockelord.com -- Locke Lord et al, Jeffrey M. McPhaul -- jmcphaul.lockelord.com -- Locke Lord LLP & Kristin Noel Volentine -- kristin.volentine@lockelord.com -- Locke Lord. Arnold Pena, Luis Cavazos, Roberto Cavazos, Carlos Valdez, Jorge Andres, David San Miguel, Ignacio Perez, Jose Antonio Perez & Arnulfo Rodriguez, Interested Partys, represented by Kenneth T. Ward , Attorney at Law. SUMMIT RETAIL: Modeski Suit Moved to District of Massachusetts -------------------------------------------------------------- JOSEPH MODESKI 4058 Saint Augustine Lane Baltimore, Maryland 21222 Resident of Baltimore City; GIOVANNI ZAMMITO, 7518 189th Street Flushing, New York 11366 Resident of New York City; and NATHAN DAMBOISE 589 East Market Street Marietta, Pennsylvania 17547 Resident of Lancaster County, the Plaintiffs, Individually and on Behalf of All Similarly Situated Employees, vs. SUMMIT RETAIL SOLUTIONS, INC. 227 Union Street New Bedford, Massachusetts 02740 Serve: Allstate Corporate Services Corp. 9 E. Loockerman Street, Suite 311 Dover, Delaware 19901, the Defendants, Case No. 1:18-cv-01099, was removed from the U.S. District Court for the District of Maryland, to the U.S. District Court for the District of Massachusetts (Boston) on Nov. 15.2018. The District of Massachusetts assigned Case No.: 1:18-cv-12383-FDS to the proceeding. The case is assigned to the Hon. Judge F. Dennis Saylor, IV. The Plaintiffs sought to recover from Defendant, unpaid wages, liquidated damages, interest, reasonable attorneys' fees and costs under the Federal Fair Labor Standards Act of 1938, the Maryland Wage and Hour Law, and the Pennsylvania Minimum Wage Act.[BN] Attorneys for Plaintiffs: Benjamin L Davis, III, Esq. George Edward Swegman, Esq. LAW OFFICES OF PETER T. NICHOLL Charles Center South 36 South Charles Street, Suite 1700 Baltimore, MD 21201 Telephone: (410) 244-7005 Facsimile: (410) 244-8454 E-mail: bdavis@nicholllaw.com gswegman@nicholllaw.com SUNPOWER CORP: Court Dismisses Shareholder Derivative Suit ---------------------------------------------------------- Upon the stipulation agreed by the parties, District Judge Richard Seeborg dismissed without prejudice the case captioned IN RE SUNPOWER CORPORATION SHAREHOLDER DERIVATIVE LITIGATION, Case No. 3:16-cv-05312-RS, Consolidated with Case Nos. 5:16-cv-05381-RS, 3:16-cv-05988-RS (N.D. Cal.). Plaintiffs Bernard Stern, Peter Moscone, and Melvin Brenner, defendants Thomas H. Werner, Charles D. Boynton, Bernard Clement, Ladislas Paszkiewicz, Daniel Laure, Catherine A. Lesjak, Thomas R. McDaniel, Pat Wood III, Arnaud Chaperon, Denis Giorno, Jean-Marc Otero del Val, and Humbert de Wendel and nominal defendant SunPower Corporation met and conferred regarding coordination of the Consolidated Action with the related Securities Action and agreed that it was in the best interests of SunPower to temporarily stay the Consolidated Action pending resolution of defendants' anticipated motion to dismiss in the Securities Action. Plaintiffs wished to voluntarily dismiss the Consolidated Action without prejudice, with each party to bear their own costs and fees, and Defendants do not oppose such a dismissal. The Parties submit that notice of said dismissal is unnecessary to protect the interests of SunPower and its shareholders for the following reasons: (i) Plaintiffs seek dismissal without prejudice; (ii) there has been no settlement or compromise between the Parties nor attempts to seek such; (iii) there has been no collusion among the Parties; and (iv) neither Plaintiffs nor their counsel have received nor will receive any consideration from Defendants for the dismissal. Acting on the agreed stipulation, the Court dismisses the consolidation action without prejudice. Each party must bear their own costs, fees, and expenses, including attorneys' fees. A copy of the Court's Order dated Nov. 20, 2018 is available at https://bit.ly/2KVHy8P from Leagle.com. Bernard Stern, derivatively on behalf of Sunpower Corporation, Plaintiff, represented by Evan Jason Smith -- esmith@brodskysmith.com -- Brodsky & Smith LLC, Alfred Glenn Yates, Jr. , Law Office of Alfred G. Yates Jr, P.C, David M. Promisloff -- david@prolawpa.com -- Profy Promisloff & Ciarlanto, P.C., Gerald L. Rutledge , Law Offices of Alfred G. Yates, Jr., Jeffrey Joseph Ciarlanto , The Weiser Law Firm, P.C. & Joseph Mark Profy , Profy Promisloff & Ciarlanto, P.C. Melvin Brenner, Derivatively on Behalf of SunPower Corporation, Plaintiff, represented by Ashley Rawlins Rifkin -- arifkin@robbinsarroyo.com -- Robbins Arroyo LLP, Brian J. Robbins -- brobbins@robbinsarroyo.com -- Robbins Arroyo LLP & George Carlos Aguilar -- gaguilart@robbinsarroyo.com -- Robbins Arroyo LLP. Thomas H. Werner, Charles D. Boynton, Arnaud Chaperon, Bernard Clement, Denis Giorno, Daniel Laure, Catherine A. Lesjak, Thomas R. McDaniel, Humbert De Wendell, Pat Wood, III, SunPower Corporation, Nominal Defendant, Ladislas Paszkiewicz & Jean-Marc Otero del Val, Defendants, represented by Steven Mark Schatz -- Sschatz@wsgr.com -- Wilson Sonsini Goodrich & Rosati, Katherine Leigh Henderson --khenderson@wsgr.com -- Wilson Sonsini Goodrich & Rosati A Professional Corporation & Michael Roland Petrocelli , Wilson Sonsini Goodrich & Rosati. SYNERGETIC COMMUNICATION: Dist. Court Dismisses Jones FDCPA Suit ---------------------------------------------------------------- District Judge Cynthia Bashant granted Defendants Synergetic Communication, Inc. and Collecto, Inc. d/b/a EOS CCA's motions to dismiss the case captioned STEPHEN JONES, Plaintiff, v. SYNERGETIC COMMUNICATION, INC., et al., Defendants, Case No. 18-cv-1860-BAS-RBB (S.D. Cal.) in its entirety. Plaintiff Stephen Jones is a California resident. Prior to Jan. 5, 2018, "an obligation was allegedly incurred to AT&T Mobility" by Plaintiff. Plaintiff "could not pay the alleged debt, and it went into default." EOS "purchased the alleged debt" and "contracted with [] Synergetic to collect" it. On Jan. 5, 2018, Synergetic sent Plaintiff a letter. The Letter indicated that "[o]ur client, EOS Cca, has placed" the alleged debt "with our office for collection in the amount of $691.60." The second paragraph notified Plaintiff how he could dispute the validity of the debt. The middle portion of the letter stated that the "Client has agreed to offer" a "settlement" of the debt for $276.64 the payment of which "must be received by" Feb. 19, 2018. The Letter continued that "upon receipt of the settlement, our client will report the account has been settled in full." The final sentence of the Letter stated that "[t]he law limits how long you can be sued on a debt. Because of the age of your debt, the creditor listed on the debt will not sue you for it . . ." Plaintiff has filed a putative class action complaint on behalf of California consumers against alleged debt collectors Synergetic and EOS for alleged violations of the Federal Debt Collection Practices Act ("FDCPA"). Plaintiff seeks damages, declaratory relief, and attorneys' fees. Plaintiff asserts two FDCPA claims. "There are four elements to an FDCPA cause of action: (1) the plaintiff is a 'consumer' under 15 U.S.C. section 1692a(3); (2) the debt arises out of a transaction entered into for personal purposes; (3) the defendant is a 'debt collector' under 15 U.S.C. section 1692a(6); and (4) the defendant violated one of the provisions contained in 15 U.S.C. sections 1692a-1692o." Synergetic and EOS moved to dismiss on the ground that Plaintiff has failed to allege violations of Section 1692e and Section 1692g. The Court agrees with Defendants. Plaintiff alleges violations of Sections 1692e(2)(A) and 1692e(10) based on: (1) an alleged misleading and deceptive representation about the nature of the statute of limitations applicable to Plaintiff's alleged debt because the Letter states that Defendants "will not sue" for a time-barred debt instead of stating "cannot sue;" (2) an alleged failure to disclose that any payment by Plaintiff of the settlement amount would result in a novation that would reset the statute of limitations applicable to the alleged debt; and (3) an alleged omission regarding Synergetic's purported rights to sue on the debt. Synergetic and EOS moved to dismiss the Section 1692e claim in its entirety on the ground that the Letter is not misleading or deceptive as a matter of law. The Court finds persuasive the line of authorities which have sustained FDCPA claims concerning debt collection letters that contain the disclaimer but which have other language which may mislead the least sophisticated consumer. But Plaintiff's other allegations regarding the Letter, in this case, do not state an FDCPA claim and thus this line of authority cannot sustain Plaintiff's Complaint. Plaintiff alleges that Defendants have violated Section 1692 because the Letter fails to disclose that the previously-lapsed statute of limitations . . . will recommence upon payment by Plaintiff." Synergetic and EOS moved to dismiss on the ground that "the Letter does not create a novation that would reset the statute of limitations." In effect, Defendants contend that Plaintiff has not plausibly alleged a failure to disclose a novation because the Letter does not create one. Although the Complaint does not expressly use the term "novation," both sides agree that the alleged failure to disclose concerns a novation. The Court agrees that Plaintiff has failed to state a Section 1692e claim on this basis. The Complaint also alleges that Defendants have violated Section 1692e because "the Letter is completely silent as to the rights of debt collector, Defendant Synergetic, to file a lawsuit against the consumer." Synergetic contends that it "does not own the debt and only the owner can sue on the debt." In opposition, Plaintiff fails to respond to this assertion by Synergetic and argues the sufficiency of his Section 1692e claim based only on the prior two bases, i.e. misrepresentation regarding the statute of limitations and failure to disclose the creation of a novation. The Court construes Plaintiff's failure to respond as a concession to dismissal of the Section 1692e claim insofar as it is premised on the alleged omission regarding Synergetic's purported "rights" to file a lawsuit against him. Moreover, on the merits, a Section 1692e claim on this basis is not plausible. Synergetic does not own the debt and "merely being retained to collect a debt does not convey the ownership of the debt to the debt collector" that would permit a party to sue on the debt. The Court also finds that the caption and the factual allegations gave Defendants fair notice that Plaintiff's FDCPA allegations might also state an RFDCPA claim. Even so, because Plaintiff has failed to state any violations of the FDCPA, he has failed to state any claim pursuant to the RFDCPA. Accordingly, the Court dismisses his RFDCPA claims without prejudice. A copy of the Court's Order dated Nov. 20, 2018 is available at https://bit.ly/2QzhuWj from Leagle.com. Stephen Jones, individually and on behalf of all others similarly situated, Plaintiff, represented by Jonathan Stieglitz . Synergetic Communication, Inc. & Collecto, Inc. dba EOS CCA, Defendants, represented by Timothy P. Johnson , Law Offices of Timothy P. Johnson. TANDEM CORP: Telecommunications Subcontractors File Class Action ---------------------------------------------------------------- Damian McIver, writing for ABC, reports that telecommunications workers have launched what lawyers have called an "unprecedented" class action, alleging they are victims of sham contracting. The case is against workforce management company ISGM (now trading as Tandem Corporation), which supplies subcontractors to Telstra, Foxtel and NBN Co. "In terms of class actions, we think this particular action is the biggest in Australia [involving workers] and probably quite unprecedented," said Vicky Antzoulatos, a special counsel for Shine Lawyers, which is running the case. "We expect that there's over 4,000 people that are eligible to join the claim." In documents filed to the Federal Court, lawyers alleged that the subcontractors engaged by ISGM from 2011 onwards were legally entitled to be treated as employees and should thus receive significant compensation. They said the company had overarching control of the workers, including the hours in which they were available to work, and the circumstances in which they could work for others. "The central allegation against ISGM will be that it set up a system of work that was designed to avoid paying workers their lawful entitlements," Ms Antzoulatos said. "Those rights include the right to receive a wage, to annual leave, long-service leave, to overtime and other allowances." Tandem (ISGM) denied the allegations and said its arrangements with subcontractors had been approved by regulators. "Tandem cares for its staff and subcontractors and is committed to ensuring that all forms of engagement are managed in a compliant way," the company said in a statement. Shine Lawyers first began investigating the company after the ABC's 730 program reported on the company's treatment of vulnerable young workers. The lead applicant in the case is Victorian man Robert Mutch, who said his experience working for the company had a devastating impact on his mental health. "Unfortunately, I tried self-harming not so long ago, believing it would be easier if I just gave up," he told 7.30 earlier this year. Implications are 'considerable' Andrew Stewart from the University of Adelaide's law school said the case had the potential to significantly alter the industrial relations landscape. "We've seen a few class actions started but covering very different kinds of workers. For example, there's a class action going on to cover telemarketers. This is a very different case," Professor Stewart said. "It's involving much more highly skilled work and the implications are really considerable -- if these workers are found to be employees they're going to be owed potentially a lot of money. "For other companies in the telecommunications industry who have been engaging technicians of this sort as contractors, this really could have major ramifications." Ms Antzoulatos was unwilling to disclose the damages being sought for each individual worker, but said "we do expect the quantum of the claim to be significant". The national president of the Communication Workers Alliance, Len Cooper, is advising Shine Lawyers, and said plenty of industries would be following the case closely. "I would imagine every employer organisation in the land will be interested in this one," he said. "I've been in the union business and telecommunications for decades now and I haven't seen a worse case of exploitation of workers than this. Ms Antzoulatos said workers across the country have reported similar stories. "Many of the workers have been personally and financially devastated by these events, to the point where some of them have attempted to take their own lives," she said. "ISGM prescribed the clothes they were to wear, the equipment they were going to use and the car they had to drive. "They often had to take out large personal loans and go into large personal debt in order to buy this equipment and the cars and this ultimately put many of them into personal and financial hardship." Toxic environment ISGM was formed in 2010 and said its business model was based on the idea that "large workforces could be managed in a better way." After establishing itself in telecommunications, it has recently branched out into insurance, trade and in-home services. It turned over $650 million last financial year and owners recently considered listing the company on the ASX. Critics said the company's growth had been fuelled by the exploitation of workers. Bill Makalovski is a former subcontractor with ISGM who's been in the industry for almost 30 years. "I decided to get into contracting because of the flexibility of managing your own time . . . being your own boss, basically," Mr Makalovski said. "All those things that appealed to me in contracting were taken away from us to the point that a toxic environment was created," he said. "Our time was no longer managed by ourselves but was managed by a computer that dictated when we start and when we finish in a day. "They had exclusivity to our time right across the day and it prevented us from being able to do any other work." Professor Stewart said it was difficult to predict how the Federal Court would view the case. "When a court has to work out whether someone is an employee, there's no single test or single question they ask," he said. "They look at a number of different factors and it's all very impressionistic. "Among the factors they consider is how much control is being exercised over the workers. "They look at whether the workers are visibly associated with the organisation with which they're working -- for example, do they drive a company vehicle? Do they wear a company uniform?" The only certainty appears to be that the allegations will be vigorously defended and the case is likely to drag on for some time. "There's no question of resources at our end but to prosecute the case will take two to three years I expect," Ms Antzoulatos said. Regardless of the outcome, Bill Makalovski is happy the company has now been called upon to defend its conduct. "Finally someone's going to be held accountable," he said. "I hope that it cleans the whole industry up." [GN] TANGOE INC: Court Junks Bid to Dismiss Sciabacucchi Suit -------------------------------------------------------- The Court of Chancery of Delaware denied the motion to dismiss the case captioned IN RE TANGOE, INC. STOCKHOLDERS LITIGATION, Consolidated C.A. No. 2017-0650-JRS (Del. Ch.) filed by the members of Tangoe's Board. Lead Plaintiff Matthew Sciabacucchi, a former stockholder of Tangoe, Inc., alleges that former members of Tangoe's Board of Directors breached their fiduciary duties to Tangoe stockholders by steering the Company into an ill-advised take-private acquisition by TAMS Inc., Asentinel, LLC and Marlin Equity Partners. According to Plaintiff, the members of Tangoe's Board (the "Director Defendants") recommended the transaction to stockholders in the midst of a storm conjured by the Board's false filings with the Securities and Exchange Commission, a failed effort to restate the Company's financials and correct the false filings, the subsequent delisting of the Company's stock by the NASDAQ exchange, the near deregistration of the stock by the SEC due to the Board's ongoing failure to file the restatement, rumblings of a proxy contest that threatened the Director Defendants' Board seats and, finally, the enticement of significant equity awards to the Director Defendants that would be triggered only by a change of control. Rather than navigate through or around the storm, according to Plaintiffs, the Director Defendants sailed Tangoe directly "into an iceberg and then faithlessly commandeered the lifeboats, leaving stockholders to drown." The Complaint pleads a single count against the Director Defendants for breaching their fiduciary duties by: (1) "agreeing to sell Tangoe to Marlin for an inadequate price, pursuant to an unreasonable process, while they were inadequately informed, ultimately failing to maximize stockholder value"; and (2) failing to "disclose to Plaintiff and the Class all information material to Tangoe stockholders' decision on whether to tender their shares and agree to the sale of the Company." The Director Defendants have moved to dismiss the Complaint. Their showcase argument is that they are entitled to business judgment rule deference under Corwin v. KKR Fin. Hldgs. LLC because a majority of disinterested, fully informed and uncoerced stockholders approved the Transaction. Alternatively, they maintain that because Tangoe's certificate of incorporation contained a Section 102(b)(7) exculpatory provision, Plaintiff was obliged, but failed, to plead a non-exculpated claim for breach of the duty of loyalty. Plaintiff sees his Complaint in a different light. He argues that he has pled facts from which it may reasonably be inferred that stockholders were either coerced to tender or did so without the benefit of material information. Moreover, he maintains that he has pled facts to support a reasonably conceivable breach of the duty of loyalty claim that is not, as a matter of law, subject to Section 102(b)(7) exculpation. The Court concludes that that Corwin "cleansing" is not available at the pleading stage because it is reasonably conceivable that the stockholders' approval of the transaction was uninformed. The Court also concludes that Plaintiff has adequately pled a non-exculpated claim for breach of the duty of loyalty against the Director Defendants because it is reasonably conceivable they approved the Transaction and recommended it to stockholders for self-interested reasons. The Director Defendants may ultimately demonstrate that they discharged their duty of full disclosure and discharged their duty of loyalty in recommending the Transaction to Tangoe stockholders. At this pleading stage, however, Plaintiff has stated a viable breach of fiduciary claim and is entitled to take discovery to support it. Accordingly, the Motion to Dismiss must be denied. A copy of the Court's Memorandum Opinion dated Nov. 20, 2018 is available at https://bit.ly/2AKD7sM from Leagle.com. Kurt M. Heyman Esquire -- kheyman@hegh.law -- and Melissa N. Donimirski Esquire -- mdonimirski@hegh.law -- of Heyman Enerio Gattuso & Hirzel LLP, Wilmington, Delaware; Jason M. Leviton Esquire -- jason@blockesq.com -- and Joel A. Fleming Esquire -- joel@blockesq.com -- of Block & Leviton LLP, Boston, Massachusetts; and Jeremy S. Friedman, Esquire -- jfriedman@fotpllc.com -- Spencer Oster Esquire -- soster@fotpllc.com -- and David F.E. Tejtel Esquire -- dtejtel@fotpllc.com -- of Friedman Oster & Tejtel PLLC, New York, New York, Attorneys for Plaintiff. Catherine G. Dearlove Esquire -- dearlove@rlf.com -- and Sarah A. Galetta Esquire -- galetta@rlf.com -- of Richards, Layton & Finger, P.A., Wilmington, Delaware and William H. Paine, Esquire -- william.paine@wilmerhale.com -- Timothy J. Perla, Esquire -- timothy.perla@wilmerhale.com -- Peter A. Spaeth Esquire -- peter.spaeth@wilmerhale.com -- and Alexander C. Boudreau Esquire -- alexandra.boudreau@wilmerhale.com -- of Wilmer Cutler Pickering Hale and Dorr LLP, Boston, Massachusetts, Attorneys for Defendants. TECHNIPFMC PLC: Still Defends Prause Shareholder Class Suit ----------------------------------------------------------- TechnipFMC plc 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 the company continues to defend itself from a purported shareholder class action suit entitled, Prause v. TechnipFMC, et al. A purported shareholder class action filed in 2017 and amended in January 2018 and captioned Prause v. TechnipFMC, et al., No. 4:17-cv-02368 (S.D. Texas) is pending in the U.S. District Court for the Southern District of Texas against the Company and certain current officers and a former employee of the Company. The suit alleges violations of the federal securities laws in connection with the Company's restatement of our first quarter 2017 financial results and a material weakness in our internal control over financial reporting announced on July 24, 2017. TechnipFMC said, "The Company is vigorously contesting the litigation and cannot predict its duration or outcome." No further updates were provided in the Company's SEC report. TechnipFMC plc engages in the oil and gas projects, technologies, and systems and services businesses. It operates through three segments: Subsea, Onshore/Offshore, and Surface Technologies. TechnipFMC plc was founded in 1958 and is headquartered in London, the United Kingdom. TECOGEN INC: Judgment on Pleadings in Vardakas Suit Pending ----------------------------------------------------------- Tecogen Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 13, 2018, for the quarterly period ended September 30, 2018, that the parties in the case, Vardakas v. American DG Energy, Inc., Case No. 17-CV-10247(LTS), are awaiting a decision on the motion for judgment on the pleadings. On or about February 15, 2017, a lawsuit was filed in the United States District Court for the District of Massachusetts by Lee Vardakas ("Vardakas"), individually and on behalf of other stockholders of American DG Energy (ADGE), naming ADGE, John N. Hatsopoulos, George N. Hatsopoulos, Benjamin Locke, Charles T. Maxwell, Deanna M. Petersen, Christine M. Klaskin, John Rowe, Joan Giacinti, Elias Samaras, Tecogen., Merger Sub., and Cassel Salpeter and Co., LLC, as defendants (the "Defendants"). The action is captioned Vardakas v. American DG Energy, Inc., Case No. 17-CV-10247(LTS). At the time Vardakas commenced the action, his complaint challenged the proposed Merger between Tecogen and ADGE. Following the consummation of the Merger (and the appointment of May, from the Massachusetts Superior Court Action, as lead plaintiff), Vardakas filed an Amended Class Action Complaint (the "Amended Complaint"). The Amended Complaint discontinued the claims against Cassel Salpeter & Co., LLC but asserted against the remaining defendants claims under Section 14(a) of the Securities Exchange Act of 1934 (the "Exchange Act") and SEC Rule 14a-9; claims against certain defendants for control person liability under Section 20(a) of the Exchange Act (collectively, the "Federal Securities Law Claims"); and common law claims for breach of fiduciary duty and aiding and abetting (the "State Law Claims"). The Federal Securities Law Claims allege, in substance, that defendants made material nondisclosure in the proxy statement about the process leading to the Merger and about the fairness opinion relied upon by ADGE's Board of Directors in recommending the Merger to shareholders. The State Law Claims assert, in substance, that defendants breached their fiduciary duties in negotiating and approving the Merger, which, plaintiff claims, deprived ADGE's nonaffiliated shareholders of fair value for their shares. On July 19, 2017, defendants moved to dismiss the Amended Complaint. In their motion papers, defendants contended that the Federal Securities Law Claims are not sufficiently pleaded and fail to state a viable claim. On February 28, 2018, the parties presented their oral arguments on the defendant's motion to dismiss. On March 2, 2018, the district court rendered its decision, dismissing the Federal Securities Law Claims, but retaining the State Law Claims. The district court exercised supplemental jurisdiction over the State Law Claims and ordered the Defendants to file an answer to the Amended Complaint addressing the State Law Claims. On March 12, 2018, the Defendants filed their first answer. On May 2, 2018, the Defendants filed their amended answer to assert further defenses, and the judge in the district court ordered the parties to hold a mediation session. On May 21, 2018, defendants filed a motion for judgment on the pleadings. A hearing on the motion for judgment on the pleadings was held on November 2, 2018, and the parties are awaiting a decision on the motion. On July 6, 2018 plaintiff filed a motion for class certification and plaintiff and defendants filed briefs regarding class certification in August and September 2018. The parties are awaiting a hearing or a decision on the class certification motion if defendants' motion for judgment on the pleadings is not granted. The Company believes that the lawsuit is without merit and intends to defend vigorously. The Amended Complaint does not specify the amount of damages claimed and the likelihood of an unfavorable outcome is not reasonably estimable. Tecogen Inc. designs, manufactures, and sells industrial and commercial cogeneration systems that produce combinations of electricity, hot water, and air conditioning in the United States and internationally. It operates through two segments, Products and Services and Energy Production. The company was incorporated in 2000 and is headquartered in Waltham, Massachusetts. TESLA INC: Inter-Local Pension Fund Sues over Model 3 Production ---------------------------------------------------------------- INTER-LOCAL PENSION FUND GCC/IBT, Individually and on Behalf of All Others 11 Similarly Situated, the Plaintiff, vs. TESLA, INC., ELON MUSK, GOLDMAN SACHS & COMPANY, LLC, MORGAN STANLEY & COMPANY, LLC, BARCLAYS CAPITAL, INC., MERRILL LYNCH, PIERCE, FENNER & 17 SMITH INC., CITIGROUP GLOBAL MARKETS, INC., DEUTSCHE BANK SECURITIES, INC., RBC CAPITAL MARKETS, LLC, and DOES 1-25, Inclusive, the Defendants, Case No. 18CV337109 (Cal. Super. Ct., Nov. 2, 2018), asserts strict liability claims under sections 12 and 15 of the Securities Act of 1933. According to the complaint, the Plaintiff brought this class action on behalf of purchasers of Tesla's 5.3% Senior Notes due 2025. Pursuant to a materially misleading offering circular dated August 11, 2017, Tesla issued and sold $1.8 billion worth of the Notes. The Offering closed on or about August 18, 2017. The Offering Circular contained misleading statements regarding the production of Tesla's Model 3 line of vehicles. In particular, the Offering Circular claimed that Tesla would be able to quickly scale its production of the Model 3 to 5,000 vehicles per week by the end of 2017 and 10,000 vehicles per week by the end of 2018 with the help of its Gigafactory 1. Just two months after the issuance of the Notes, the Company admitted that it would be unable to make 5,000 vehicles per week by 2017. Further, as first reported by The Wall Street Journal, rather than using the high tech assembly line described in the Offering Circular, Tesla was still making a significant portion of the Model 3s by hand. Since that time, Tesla has continually moved back when it will be able to consistently produce 5,000 Model 3s per week. In addition, the Company has since admitted that its battery factory, the "Gigafactory 1," did not have the ability to make the batteries in the needed amounts for the Model 3 throughout 2017, and still did not as of February 2018. The Defendants offered and sold the Notes to plaintiff and the Class. In offering and selling the Notes, the Defendants made written untrue statements of material fact and omitted to state material facts to plaintiff that was necessary in order to make the statement made in light of the circumstances under which they were made, not misleading. These misstatements and omissions were "material facts" because there was a 19 substantial likelihood that, under all the circumstances, a reasonable investor would consider it important in reaching an investment decision, the lawsuit says.[BN] Attorneys for Plaintiff: Brian J. Robbins, Esq. Stephen J. Oddo, Esq. ROBBINS ARROYO LLP 600 B Street, Suite 1900 3 San Diego, CA 92101 Telephone: (619) 525-3990 Facsimile: (619) 525-3991 E-mail: brobbins@robbinsarroyo.com soddo@robbinsarroyo.com TIGER NATURAL: Court Allows 2nd Amended Answer in Fishman Suit -------------------------------------------------------------- The United States District Court for the Northern District of California issued an Order granting Defendant's Motion to for Leave to Amend Answer in the case captioned EMILY FISHMAN and SUSAN FARIA, individually and on behalf of all others similarly situated, Plaintiffs, v. TIGER NATURAL GAS, INC., an Oklahoma corporation; COMMUNITY GAS CENTER INC., a Colorado corporation; JOHN DYET, an individual; and DOES 3-100, Defendants. No. C 17-05351 WHA. (N.D. Cal.) to include additional factual allegations to support its affirmative defenses. The controversy allegedly began when defendant Tiger Natural Gas, Inc., through defendant Community Gas Center Inc. (CGC), called each of plaintiffs Emily Fishman and Susan Faria to solicit them to buy natural gas from Tiger through its price protection program. Plaintiffs' allegations have been summarized in prior orders. The Plaintiffs moved to strike Tiger's affirmative defenses to the operative third amended complaint. A September 18 order granted in part and denied in part the plaintiffs' motion to strike without a hearing, striking thirty-four of Tiger's thirty-five affirmative defenses. That order gave Tiger until October 4 to file a motion for leave to amend its answer. Tiger timely moved for leave to amend and submitted a proposed amended answer. At oral argument the undersigned judge indicated his tentative view that Tiger asserted too many conclusory affirmative defenses which lacked sufficient facts. Tiger was allowed to submit a new proposed answer, limited to pleading additional relevant facts supporting only those affirmative defenses previously asserted in its proposed amended answer. Tiger timely submitted a second proposed amended answer. The judge has reviewed the proposed amendments to Tiger's six affirmative defenses and concludes they are not entirely futile. Although they may or may not operate to bar one or more of plaintiffs' claims to relief, that can be determined at trial or on a motion for summary judgment. For present purposes, these defenses have been sufficiently pleaded. Accordingly, Tiger's motion for leave to amend is granted. A full-text copy of the District Court's November 19, 2018 Order is available at https://tinyurl.com/yb4aqbzb from Leagle.com. Emily Fishman, individually and on behalf of all others similarly situated & Susan Faria, individually and on behalf of all others similarly situated, Plaintiffs, represented by Daniel L. Balsam -- calbar@danbalsam.com -- The Law Offices of Daniel Balsam, Jacob N. Harker -- harkerjacob@gmail.com -- Law Offices of Jacob Harker, Kathleen Styles Rogers -- krogers@kraloweclaw.com -- Kralowec Law, P.C. & Kimberly Ann Kralowec -- kkralowec@kraloweclaw.com -- Kralowec Law, P.C. Tiger Natural Gas, Inc., an Oklahoma corporation, Defendant, represented by Janet Chung -- janet.chung@hklaw.com -- Holland and Knight LLP, John Andrew Canale -- John.Canale@hklaw.com -- Holland and Knight LLP, Leah E. Capritta -- Leah.Capritta@hklaw.com -- Holland & Knight LLP, Thomas Drew Leland -- Thomas.Leland@hklaw.com -- Holland and Knight LLP & Vince Lee Farhat, Holland and Knight LLP. TIGER NATURAL: Ct. Partly OK's Fishman Bid for Discovery Sanctions ------------------------------------------------------------------ District Judge William Alsup granted in part and denied in part plaintiffs' motion for discovery sanctions in the case captioned EMILY FISHMAN, individually and on behalf of all others similarly situated, and SUSAN FARIA, individually and on behalf of all others similarly situated, Plaintiffs, v. TIGER NATURAL GAS, INC., an Oklahoma corporation, COMMUNITY GAS CENTER, INC., a Colorado corporation, JOHN DYET, an individual; and DOES 3-100, Defendants, No. C 17-05351 WHA (N.D. Cal.). Tiger hired defendant Community Gas Center, Inc. to conduct telemarketing. Defendant John Dyet owned several telemarketing companies, including CGC. Beginning in 2014, CGC called PG&E customers to promote Tiger's capped-rate program, pursuant to which program Tiger's supply rate for natural gas would be capped at $0.69 per therm (and the gas would be delivered via the PG&E system). This case stems from alleged misrepresentations made during these phone solicitations to PG&E's customers. FRCP 37(e) sanctions are available when "electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and [the information] cannot be restored or replaced through additional discovery." Two categories of sanctions exist. First, where the district court finds that the loss of information has prejudiced the moving party, the district court may order "measures no greater than necessary to cure the prejudice." Second, where the district court finds that the offending party "acted with the intent to deprive another party of the information's use in the litigation," the district court may require an adverse evidentiary presumption, dismiss the case, or enter default judgment. The issue presented is the extent to which CGC's call to Fishman should be considered representative of calls made to all putative class members. As an initial matter, where a customer enrolled in Tiger's program over the phone, Tiger had an obligation under Gas Rule 23 to "retain the audio recording of the sales call for one (1) year and the TPV of the Customer's enrollment for two years" Although Tiger maintained copies of all TPV recordings, it has eventually developed that Tiger did not retain recordings of the sales pitches made to putative class members. Attempting to skirt this responsibility under Gas Rule 23, Tiger argues that it operated on the understanding that CGC retained copies of the sales pitches. In support, Tiger points to a provision in its marketing agreement with CGC by which both parties agreed to "comply with all utility, federal, state, and local laws, regulations and rules as well as industry accepted business practices." But nothing in Gas Rule 23 indicated that Tiger's responsibility to maintain recordings was delegable. In fact, the text of Gas Rule 23 indicated the opposite. Certain provisions of Gas Rule 23, such as Rule 23.D.1's consumer protection provisions, imposed obligations on "the CTA or its authorized agent(s)." Rule 23.E.2.i, by contrast, imposed its obligations directly on the CTA (and the CTA only) to retain audio recordings. As plaintiffs' parallel motion for class certification demonstrates, plaintiffs have been prejudiced by Tiger's failure to take reasonable steps to preserve recorded sales calls. This order rejects Tiger's argument that plaintiffs have failed to show that these recordings "cannot be restored or replaced through additional discovery," FRCP 37(e), as Tiger offers no suggestions as to an evidentiary substitute. Although Tiger has produced telemarketing scripts it contends were used by CGC during sales pitches, the call to Fishman indisputably deviated from those scripts, rendering them suspect. To ameliorate the prejudice to plaintiffs, the litigation will proceed as follows. At trial, jury will be informed of the foregoing destruction of evidence and the jury will be permitted to decide whether or not the call made to Fishman was representative of the sales pitches made to the putative class members (both in terms of content and the fact that the call was recorded). The jury could alternatively decide, for example, that the telemarketing scripts produced by Tiger are more representative of the calls made to the putative class. Whether the same course of conduct occurred class-wide will be for the jury to determine. Moreover, the Fishman sales pitch arguably failed to request consent to record as required by Section 632 of the California Penal Code. The jury will likewise be allowed to infer that the other sales calls, had they been preserved, would have similarly been recorded without consent obtained up front. To this extent, plaintiffs' motion for discovery sanctions is granted. Because the record thus far fails to demonstrate that Tiger "acted with the intent to deprive another party of the information's use in the litigation," FRCP 37(e)(2), the motion is otherwise denied, subject to revisiting if the trial evidence proves to be stronger. A copy of the Court's Order dated Nov. 20, 2018 is available at https://bit.ly/2RtJ1FH from Leagle.com. Emily Fishman, individually and on behalf of all others similarly situated & Susan Faria, individually and on behalf of all others similarly situated, Plaintiffs, represented by Daniel L. Balsam , The Law Offices of Daniel Balsam, Jacob N. Harker -- jacob@harkercounsel.com -- Law Offices of Jacob Harker, Kathleen Styles Rogers -- krogers@kraloweclaw.com -- Kralowec Law, P.C. & Kimberly Ann Kralowec -- kkralowec@kraloweclaw.com -- Kralowec Law, P.C. Tiger Natural Gas, Inc., an Oklahoma corporation, Defendant, represented by Janet Chung -- Janet.chung@hkalw.com -- Holland and Knight LLP, John Andrew Canale -- john.canale@hklaw.com -- Holland and Knight LLP, Leah E. Capritta -- leah.capritta@hklaw.com -- Holland & Knight LLP, Thomas Drew Leland -- thomas.leland@hklaw.com -- Holland and Knight LLP & Vince Lee Farhat -- vince.farhat@hklaw.com -- Holland and Knight LLP. John Dyet, Defendant, pro se. TIGER NATURAL: Fishman Bid for Class Certification Partly Granted ----------------------------------------------------------------- District Judge William Alsup granted in part and denied in part plaintiffs' motion for class certification in the case captioned EMILY FISHMAN, individually and on behalf of all others similarly situated, and SUSAN FARIA, individually and on behalf of all others similarly situated, Plaintiffs, v. TIGER NATURAL GAS, INC., an Oklahoma corporation, COMMUNITY GAS CENTER, INC., a Colorado corporation, JOHN DYET, an individual, and DOES 2-100, Defendants, No. C 17-05351 WHA (N.D. Cal.). The Court also granted plaintiffs' motion for relief from failing to meet their filing deadline. Plaintiffs' operative complaint asserted the following claims: (1) violations of California's Recording Law (California Penal Code sections 632 et seq.); (2) breach of oral contract; (3) violations of PG&E Gas Rule 23; (4) breach of third-party beneficiary contract; (5) violations of California's Consumers Legal Remedies Act; (6) fraud; (7) negligent misrepresentation; (8) violations of the Regulations on Core Transport Agents (California Public Utilities Code sections 980-989.5); (9) violations of California's False Advertising Law; and (10) violations of California's Unfair Competition Law Plaintiffs sought to certify the following classes: 1. Tiger/PG&E Customer Class: All California consumers and businesses that were customers of PG&E at the time they enrolled in Tiger's capped-rate price protection program after receiving a telemarketing call advertising the program between August 18, 2013, and the present. 2. Tiger/PG&E Consumer Sub-Class: All California consumers that were customers of PG&E at the time they enrolled in Tiger's capped-rate price protection program after receiving a telemarketing call advertising the program between August 18, 2013, and the present. Following oral argument, at the Court's request, plaintiffs submitted a proposed trial plan which narrowed the issues plaintiffs sought to certify for class treatment. Plaintiffs then sought certification of the following claims only: (1) violations of California's Recording Law; (2) violations of California's Consumers Legal Remedies Act; and (3) violations of California's Unfair Competition Law. Class certification under FRCP 23(b)(3) is appropriate only if class resolution "is superior to other available methods for fairly and efficiently adjudicating the controversy." Tiger does not contest superiority and this order finds the superiority element satisfied. Given the relatively low recovery at issue, class members will not have an interest in individually controlling the prosecution of separate actions. Neither party identifies any pending litigation regarding plaintiffs' Recording Law claim. A class action is accordingly a superior method of resolving this claim. Plaintiffs also sought to certify claims under California's Unfair Competition Law, California Business and Professions Code Section 17200 et seq., and California's Consumer Legal Remedies Act, California Business and Professions Code Section 1750 et seq. These claims are primarily based on plaintiffs' allegations that defendants made fraudulent or misleading statements during telemarketing calls to putative class members. The dispositive issue is whether these claims may be certified under FRCP 23(b)(3) and accordingly this order need only address whether individual questions predominate. In light of Tiger's stipulation that Fishman's TPV call was substantially the same as those made to other putative class members, the parallel order granting in part plaintiffs' motion for discovery sanctions substantially aided plaintiffs in showing a common course of conduct with respect to the class. Nevertheless, because plaintiffs have failed to show that injury can be established on a classwide basis, they have not met their burden of demonstrating that FRCP 23(b)(3)'s requirements are met. Thus, these claims will not be certified on the current record. In the event that plaintiffs obtain the necessary proof from PG&E, the Court would consider a supplemental motion for class certification so long as doing so would not otherwise disrupt orderly case management. In sum, plaintiffs' motion for class certification is granted in part and denied in part. The following class is certified: 1. Tiger/PG&E Customer Class: All California consumers and businesses that were customers of PG&E at the time they enrolled in Tiger's capped-rate price protection program after receiving a telemarketing call advertising the program between August 18, 2013, and the present. The Customer Class is certified only with respect to plaintiffs' Recording Law claim. Emily Fishman and Susan Faria are appointed as class representatives. A copy of the Court's Order dated Nov. 20, 2018 is available at https://bit.ly/2Uf27S3 from Leagle.com. Emily Fishman, individually and on behalf of all others similarly situated & Susan Faria, individually and on behalf of all others similarly situated, Plaintiffs, represented by Daniel L. Balsam -- legal@danbalsam.com -- The Law Offices of Daniel Balsam, Jacob N. Harker, Law Offices of Jacob Harker -- jacob@harkercounsel.com -- Kathleen Styles Rogers -- krogers@kraloweclaw.com -- Kralowec Law, P.C. & Kimberly Ann Kralowec -- kkralowec@kraloweclaw.com -- Kralowec Law, P.C. Tiger Natural Gas, Inc., an Oklahoma corporation, Defendant, represented by Janet Chung -- Janet.chung@hklaw.com -- Holland and Knight LLP, John Andrew Canale -- john.canale@hklaw.com -- Holland and Knight LLP, Leah E. Capritta -- leah.capritta@hklaw.com -- Holland & Knight LLP, Thomas Drew Leland -- Thomas.leland@hklaw.com -- Holland and Knight LLP & Vince Lee Farhat -- vince.farhat@hklaw.com -- Holland and Knight LLP. John Dyet, Defendant, pro se. TIVITY HEALTH: Bid to Dismiss Weiner Class Action Suit Ongoing -------------------------------------------------------------- Tivity Health, 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 the Company has sought dismissal of the first amended complaint filed by Eric Weiner. On November 20, 2017, Eric Weiner, claiming to be a stockholder of the Company, filed a complaint on behalf of stockholders who purchased the Company's common stock between February 24, 2017 and November 3, 2017 ("Weiner Lawsuit"). The Weiner Lawsuit was filed as a class action in the U.S. District Court for the Middle District of Tennessee, naming as defendants the Company, the Company's chief executive officer, chief financial officer and a former executive who served as both chief accounting officer and interim chief financial officer. The complaint alleges that the defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act") and Rule 10b-5 promulgated under the Exchange Act in making false and misleading statements and omissions related to the United Press Release. The complaint seeks monetary damages on behalf of the purported class. On April 3, 2018, the Court entered an order appointing the Oklahoma Firefighters Pension and Retirement System as lead plaintiff, designated counsel for the lead plaintiff, and established certain deadlines for the case. On June 4, 2018, Plaintiff filed a first amended complaint. On August 3, 2018, the Company filed a motion to dismiss the first amended complaint and a memorandum in support of motion to dismiss seeking dismissal on grounds that the first amended complaint fails to plead any actionable statement or omission and fails to allege facts sufficient to give rise to a strong inference of scienter (the "Motion to Dismiss"). Tivity Health, Inc. provides fitness and health improvement programs in the United States. The company offers SilverSneakers senior fitness program to the members of Medicare advantage, Medicare supplement, and group retiree plans; and Prime fitness, a fitness facility access program through commercial health plans and employers. The company was formerly known as Healthways, Inc. and changed its name to Tivity Health, Inc. in January 2017. Tivity Health, Inc. was founded in 1981 and is headquartered in Franklin, Tennessee. TOTAL SYSTEM: Unit Still Defends Telexfree Securities Litigation ---------------------------------------------------------------- Total System Services, 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 ProPay, a company's subsidiary continues to defend a consolidated class action suit entitled, In Re: Telexfree Securities Litigation (4:14-md-02566-TSH) (D. Mass.). ProPay, Inc. ("ProPay"), a subsidiary of the Company, has been named as one of a number of defendants (including other merchant processors) in several purported class action lawsuits relating to the activities of TelexFree, Inc. and its affiliates and principals. TelexFree is a former merchant customer of ProPay. With regard to TelexFree, each purported class action lawsuit generally alleges that TelexFree engaged in an improper multi-tier marketing scheme involving voice-over Internet protocol telephone services. The plaintiffs in each of the purported class action complaints generally allege that the various merchant processor defendants, including ProPay, aided and abetted the improper activities of TelexFree. TelexFree filed for bankruptcy protection in Nevada. The bankruptcy proceeding was subsequently transferred to the Massachusetts Bankruptcy Court. Specifically, ProPay has been named as one of a number of defendants (including other merchant processors) in each of the following purported class action complaints relating to TelexFree: (i) Waldermara Martin, et al. v. TelexFree, Inc., et al. (Case No. BK-S-14-12524-ABL) (Bankr. D. Nev.); (ii) Anthony Cellucci, et al. v. TelexFree, Inc., et. al. (Case No. 4:14-BK-40987) (Bankr. D. Mass.); (iii) Maduako C. Ferguson Sr., et al. v. Telexelectric, LLP, et. al (Case No. 5:14-CV-00316-D) (E.D.N.C.); (iv) Todd Cook v. TelexElectric LLP et al. (Case No. 2:14-CV-00134) (N.D. Ga.); (v) Felicia Guevara v. James M. Merrill et al., CA No. 1:14-cv-22405-DPG) (S.D. Fla.); (vi) Reverend Jeremiah Githere, et al. v. TelexElectric LLP et al. (Case No. 1:14-CV-12825-GAO) (D. Mass.); (vii) Paulo Eduardo Ferrari et al. v. Telexfree, Inc. et al. (Case No. 14-04080) (Bankr. D. Mass); (viii) Magalhaes v. TelexFree, Inc., et al., No. 14-cv-12437 (D. Mass.); (ix) Griffith v. Merrill et al., No. 14-CV-12058 (D. Mass.); (x) Abelgadir v. Telexelectric, LLP, No. 14-09857 (S.D.N.Y.); and (xi) Rita Dos Santos, v. TelexElectric, LLP et al., 2:15-cv-01906-NVW (D. Ariz.) (together, the "Actions"). On October 21, 2014, the Judicial Panel on Multidistrict Litigation ("JPML") transferred and consolidated the Actions filed before that date to the United States District Court for the District of Massachusetts (the "Consolidated Action"). The JPML subsequently transferred the remaining Actions to the Consolidated Action. The Consolidated Action is styled In Re: Telexfree Securities Litigation (4:14-md-02566-TSH) (D. Mass.). The plaintiffs in the Consolidated Action filed a First Consolidated Amended Complaint on March 31, 2015 and filed a Second Consolidated Amended Complaint (the "Second Amended Complaint") on April 30, 2015. The Second Amended Complaint, which supersedes the complaints filed prior to consolidation of the Actions, purports to bring claims on behalf of all persons who purchased certain TelexFree "memberships" and suffered a "net loss" between January 1, 2012 and April 16, 2014. With respect to ProPay, the Second Amended Complaint alleges that ProPay aided and abetted tortious acts committed by TelexFree, and that ProPay was unjustly enriched in the course of providing payment processing services to TelexFree. Several defendants, including ProPay, moved to dismiss the Second Amended Complaint on June 2, 2015. The court held a hearing on the motions to dismiss on November 2, 2015, but has not yet issued a ruling on the vast majority of the motions. The court did, however, deny the motion to dismiss filed by Defendant Katia Wanzeler, the wife of one of the principals of TelexFree, in an order dated May 7, 2018. The court has not ruled on any motions to dismiss since that time. No further updates were provided in the Company's SEC report. Total System Services, Inc. provides payment processing, merchant, and related payment services to financial and nonfinancial institutions worldwide. The company operates through three segments: Merchant Solutions, Issuer Solutions, and Netspend. Total System Services, Inc. was founded in 1983 and is headquartered in Columbus, Georgia. TRAFFIC ENGINEERING: Underpays Traffic Control Workers, Suit Says ----------------------------------------------------------------- ALEX BELLAUS, individually and on behalf of others similarly situated, Plaintiff v. TRAFFIC ENGINEERING SERVICES, LLC, Defendant, Case No. 5:18-cv-04639-JLS (E.D. Pa., Oct. 29, 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 Bellaus was employed by the Defendant as traffic control worker. Traffic Engineering Services, LLC is a for-profit entity created and existing under and by virtue of the laws of the State of Maryland. [BN] The Plaintiff is represented by: Jason T. Brown, Esq. Nicholas Conlon, Esq. Ching-Yuan Teng, Esq. BROWN, LLC 155 2nd Street, Suite 4 Jersey City, NJ 07302 Telephone: (877) 561-0000 Facsimile: (855) 582-5297 E-mail: jtb@jtblawgroup.com nicholasconlon@jtblawgroup.com tonyteng@jtblawgroup.com TRINITY HEATING: Womble Bond Attorney Discusses Court Ruling ------------------------------------------------------------ Eric Troutman, Esq., of Womble Bond Dickinson (US) LLP, in an article for The National Law Review, reports that can a named class representative continue to represent a putative TCPA class action even after a Defendant pays the Plaintiff the highest amount he/she could possibly recover on their individual claim? That question was left open in the U.S. Supreme Court's decision in Campbell-Ewald Co. v. Gomez,136 S. Ct. 663 (2016) but was answered affirmatively by a district court in Maryland in Boger v. Trinity Heating & Air, Inc., Case No. 17-7729, 2018 WL 6050886 (D. Md. Nov. 16, 2018.) Setting the stage. Supreme Court precedent counsels that a named class representative must have standing at all stages of the litigation. Black letter law also dictates that an uncertified class is not a legal entity capable of pursuing a claim on its own. So if a named class representative's claim is mooted, the entire action -- including the class components -- should go away. At least in theory. In practice appellate courts over the years have concocted numerous "relation back" doctrines designed to save class actions from efforts by Defendants to "pick off" class representatives by paying them the full amount recoverable on their individual claims. The fear is that class actions under Rule 23 would evaporate if a Defendant could always just throw few bucks at a class representative and make the claim disappear. The law in this area continues to be in flux. In Campbell-Ewald the Supreme Court confirmed that an offer to settle a claim exceeding the amount recoverable by a class representative is insufficient to moot a claim at all -- a rejected offer is a legal nullity with no effect on an underlying claim (probably). But the divided Supreme Court in Campbell-Ewald reserved the issue of whether mootness can be bought with an effective delivery of the necessary sums to the Plaintiff. Since Cambpell Ewald, many have tried and failed to pick off TCPA claims using the old "deposit-money-with-the-court trick." The Ninth Circuit was first to determine that class representatives cannot be forcefully bought off in Chen v. Allstate Insurance Company, 819 F.3d 1136 (9th Cir. 2016). The Seventh and Second Circuits have followed suit–although the Seventh Circuit has suggested that a pick off move may create valid grounds to challenge a class representative's adequacy to represent the class. See Fulton Dental v. Bisco, Inc., 860 F.3d 541 (7th Cir. 2017). That brings us to Boger. In that case a named class representative received 3 faxes. It sued on behalf of thousands of others that had received similar faxes. The Defendant deposited $6,000.00 with the court for Plaintiff's benefit–more than Plaintiff could have ever recovered on its individual claim. Defendant then moved to dismiss on the ground that the claim had been mooted by the tender of complete relief. The Boger court disagreed. Following Chen the court concluded "a class action plaintiff should have the opportunity to seek class certification before a defendant can force a settlement." Even if a complete payment is made, therefore, the Boger court finds that it does not "necessarily satisfy Boger's interest in pursuing a class action, which simply cannot be met by any offer that precludes him from seeking class certification." Boger at *5. The idea that a Plaintiff has a non-pecuniary "interest" in representing a class that cannot be mooted is curious and does not appear to derive from Rule 23 or any other federal statute. Nonetheless, this notion has cropped up time and again in TCPA "pick off" cases. Keep it in mind folks. [GN] TRUSTMARK CORP: TNB Still Faces Class Suit over Stanford Financial ------------------------------------------------------------------ Trustmark Corporation 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 Trustmark National Bank (TNB) continues to defend itself from a class action suit related to the collapse of the Stanford Financial Group. Trustmark's wholly-owned subsidiary has been named as a defendant in three lawsuits related to the collapse of the Stanford Financial Group. The first is a purported class action complaint that was filed on August 23, 2009 in the District Court of Harris County, Texas, by Peggy Roif Rotstain, Guthrie Abbott, Catherine Burnell, Steven Queyrouze, Jaime Alexis Arroyo Bornstein and Juan C. Olano (collectively, Class Plaintiffs), on behalf of themselves and all others similarly situated, naming TNB and four other financial institutions unaffiliated with Trustmark as defendants. The complaint seeks to recover (i) alleged fraudulent transfers from each of the defendants in the amount of fees and other monies received by each defendant from entities controlled by R. Allen Stanford (collectively, the Stanford Financial Group) and (ii) damages allegedly attributable to alleged conspiracies by one or more of the defendants with the Stanford Financial Group to commit fraud and/or aid and abet fraud on the asserted grounds that defendants knew or should have known the Stanford Financial Group was conducting an illegal and fraudulent scheme. Plaintiffs have demanded a jury trial. Plaintiffs did not quantify damages. In November 2009, the lawsuit was removed to federal court by certain defendants and then transferred by the United States Panel on Multidistrict Litigation to federal court in the Northern District of Texas (Dallas) where multiple Stanford related matters are being consolidated for pre-trial proceedings. In May 2010, all defendants (including TNB) filed motions to dismiss the lawsuit. In August 2010, the court authorized and approved the formation of an Official Stanford Investors Committee (OSIC) to represent the interests of Stanford investors and, under certain circumstances, to file legal actions for the benefit of Stanford investors. In December 2011, the OSIC filed a motion to intervene in this action. In September 2012, the district court referred the case to a magistrate judge for hearing and determination of certain pretrial issues. In December 2012, the court granted the OSIC's motion to intervene, and the OSIC filed an Intervenor Complaint against one of the other defendant financial institutions. In February 2013, the OSIC filed a second Intervenor Complaint that asserts claims against TNB and the remaining defendant financial institutions. The OSIC seeks to recover: (i) alleged fraudulent transfers in the amount of the fees each of the defendants allegedly received from Stanford Financial Group, the profits each of the defendants allegedly made from Stanford Financial Group deposits, and other monies each of the defendants allegedly received from Stanford Financial Group; (ii) damages attributable to alleged conspiracies by each of the defendants with the Stanford Financial Group to commit fraud and/or aid and abet fraud and conversion on the asserted grounds that the defendants knew or should have known the Stanford Financial Group was conducting an illegal and fraudulent scheme; and (iii) punitive damages. The OSIC did not quantify damages. In July 2013, all defendants (including TNB) filed motions to dismiss the OSIC's claims. In March 2015, the court entered an order authorizing the parties to conduct discovery regarding class certification, staying all other discovery and setting a deadline for the parties to complete briefing on class certification issues. In April 2015, the court granted in part and denied in part the defendants' motions to dismiss the Class Plaintiffs' claims and the OSIC's claims. The court dismissed all of the Class Plaintiffs' fraudulent transfer claims and dismissed certain of the OSIC's claims. The court denied the motions by TNB and the other financial institution defendants to dismiss the OSIC's constructive fraudulent transfer claims. On June 23, 2015, the court allowed the Class Plaintiffs to file a Second Amended Class Action Complaint (SAC), which asserted new claims against TNB and certain of the other defendants for (i) aiding, abetting and participating in a fraudulent scheme, (ii) aiding, abetting and participating in violations of the Texas Securities Act, (iii) aiding, abetting and participating in breaches of fiduciary duty, (iv) aiding, abetting and participating in conversion and (v) conspiracy. On July 14, 2015, the defendants (including TNB) filed motions to dismiss the SAC and to reconsider the court's prior denial to dismiss the OSIC's constructive fraudulent transfer claims against TNB and the other financial institutions that are defendants in the action. On July 27, 2016, the court denied the motion by TNB and the other financial institution defendants to dismiss the SAC and also denied the motion by TNB and the other financial institution defendants to reconsider the court's prior denial to dismiss the OSIC's constructive fraudulent transfer claims. On August 24, 2016, TNB filed its answer to the SAC. On October 20, 2017, the OSIC filed a motion seeking an order lifting the discovery stay and establishing a trial schedule. On November 7, 2017, the court denied the OSIC's motion seeking class certification and designation of class representatives and counsel, finding that common issues of fact did not predominate. The court granted the OSIC's motion to lift the discovery stay that it had previously ordered. No further updates were provided in the Company's SEC report. Trustmark Corporation operates as the bank holding company for Trustmark National Bank that provides banking and other financial solutions to individuals and corporate institutions in the United States. The company offers checking, savings, and money market accounts; individual retirement accounts; certificates of deposits; financing for commercial and industrial projects, income producing commercial real estate, owner-occupied real estate, and construction and land development; and installment and real estate loans, and lines of credit. Trustmark Corporation was founded in 1889 and is headquartered in Jackson, Mississippi. TURTLE BEACH: Shareholders Class Action Trial Set for Nov. 2019 --------------------------------------------------------------- A shareholder class action lawsuit is set for trial in November 2019, Turtle Beach Corporation 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. On August 5, 2013, VTB Holdings, Inc. (VTBH) and the Company (f/k/a Parametric) announced that they had entered into the Merger Agreement pursuant to which VTBH would acquire an approximately 80% ownership interest and existing shareholders would maintain an approximately 20% ownership interest in the combined company (the "Merger"). Following the announcement, several shareholders filed class action lawsuits in California and Nevada seeking to enjoin the Merger. The plaintiffs in each case alleged that members of the Company's Board of Directors breached their fiduciary duties to the shareholders by agreeing to a merger that allegedly undervalued the Company. VTBH and the Company were named as defendants in these lawsuits under the theory that they had aided and abetted the Company's Board of Directors in allegedly violating their fiduciary duties. The plaintiffs in both cases sought a preliminary injunction seeking to enjoin closing of the Merger, which, by agreement, was heard by the Nevada court with the California plaintiffs invited to participate. On December 26, 2013, the court in the Nevada cases denied the plaintiffs' motion for a preliminary injunction. Following the closing of the Merger, the Nevada plaintiffs filed a second amended complaint, which made essentially the same allegations and sought monetary damages as well as an order rescinding the Merger. The California plaintiffs dismissed their action without prejudice, and sought to intervene in the Nevada action, which was granted. Subsequent to the intervention, the plaintiffs filed a third amended complaint, which made essentially the same allegations as prior complaints and sought monetary damages. On June 20, 2014, VTBH and the Company moved to dismiss the action, but that motion was denied on August 28, 2014. On September 14, 2017, a unanimous en banc panel of the Nevada Supreme Court granted defendants' petition for writ of mandamus and ordered the trial court to dismiss the complaint but provided a limited basis upon which plaintiffs could seek to amend their complaint. Plaintiffs amended their complaint on December 1, 2017 to assert the same claims in a derivative capacity on behalf of the Company, as a well as in a direct capacity, against VTBH, Stripes Group, LLC, SG VTB Holdings, LLC, and the former members of the Company's Board of Directors. All defendants moved to dismiss this amended complaint on January 2, 2018, and those motions were denied on March 13, 2018. Defendants petitioned the Nevada Supreme Court to reverse this ruling on April 18, 2018. On June 15, 2018, the Nevada Supreme Court denied defendants' writ petition without prejudice. The district court subsequently entered a pretrial schedule and set trial for November 2019. No further updates were provided in the Company's SEC report. Turtle Beach Corporation operates as an audio technology company. It provides various gaming headset solutions for various platforms, including video game and entertainment consoles, handheld consoles, personal computers, and mobile and tablet devices under the Turtle Beach brand. The company was founded in 1975 and is headquartered in San Diego, California. UNIT CORP: Chieftain Royalty Class Suit Ongoing in Oklahoma ----------------------------------------------------------- Unit Corp.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 the company continues to defend itself from a putative class action suit entitled, Chieftain Royalty Company v. Unit Petroleum Company, No. CJ-16-230, District Court of LeFlore County, Oklahoma. On November 3, 2016, a putative class action lawsuit was filed against Unit Petroleum Company styled Chieftain Royalty Company v. Unit Petroleum Company in LeFlore County, Oklahoma. Plaintiff alleges that Unit Petroleum breached its duty to pay royalties on natural gas used for fuel off the lease premises. The lawsuit seeks actual and punitive damages, an accounting, injunctive relief, and attorney's fees. Plaintiff is seeking relief on behalf of Oklahoma citizens who are or were royalty owners in the company's Oklahoma wells. The company filed a motion to dismiss on the basis that the claims asserted by the Plaintiff and the putative class are barred because they have already been asserted by the putative class in the Panola lawsuit and are subject to its reversal of class certification. The court denied the company's motion to dismiss and the company has asked the court to certify its order so that it can be immediately appealed. That issue is still pending before the court. Unit Corp. said, "If we do not ultimately prevail on our claim of issue preclusion, we have several other defenses, including that the case cannot be properly certified as a class action because of the wide variety of circumstances that determine whether a royalty payment was wrongfully withheld. At this point, the issue of class certification has not been set before the court." Unit Corp. further said, "We continue to vigorously defend against each of the pending claims. At this time we are unable to express an opinion with respect to the likelihood of an unfavorable outcome or provide an estimate of potential losses, if any." No further updates were provided in the Company's SEC report. Unit Corp. engages in onshore contract drilling of oil and gas wells (for its own account as well as for other companies), exploration and production of oil and gas, and the gathering and transportation of natural gas primarily in the U.S. It also explores, develops, acquires, and produces oil and natural gas, and buys, sells, gathers, processes, and treats natural gas. Unit was founded in 1963 and is based in Tulsa, Oklahoma. UNIT CORP: Cockerell Oil Properties Class Action Ongoing -------------------------------------------------------- Unit Corp.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 the company continues to defend itself from a putative class action suit entitled, Cockerell Oil Properties, Ltd., v. Unit Petroleum Company, No. 16-cv-135-JHP, United States District Court for the Eastern District of Oklahoma. On March 11, 2016, a putative class action lawsuit was filed against Unit Petroleum Company styled Cockerell Oil Properties, Ltd., v. Unit Petroleum Company in LeFlore County, Oklahoma. The company removed the case to federal court in the Eastern District of Oklahoma. The plaintiff alleges that Unit Petroleum wrongfully failed to pay interest with respect to untimely royalty payments under Oklahoma's Production Revenue Standards Act. The lawsuit seeks actual and punitive damages, an accounting, disgorgement, injunctive relief, and attorney's fees. Plaintiff is seeking relief on behalf of royalty owners in the company's Oklahoma wells. Unit Corp. said, "We have asserted several defenses including that the case cannot be properly certified as a class action because of the wide variety of circumstances that determine whether a royalty payment was timely made or has accrued interest under Oklahoma law. At this point, the court has not taken any action on the issue of class certification." No further updates were provided in the Company's SEC report. Unit Corp. engages in onshore contract drilling of oil and gas wells (for its own account as well as for other companies), exploration and production of oil and gas, and the gathering and transportation of natural gas primarily in the U.S. It also explores, develops, acquires, and produces oil and natural gas, and buys, sells, gathers, processes, and treats natural gas. Unit was founded in 1963 and is based in Tulsa, Oklahoma. UNITED STATES: 9th Cir. Remands Immigrant Bond Hearing Suit ----------------------------------------------------------- The United States Court of Appeals, Ninth Circuit, issued an Order remanding to the District Court the case captioned ALEJANDRO RODRIGUEZ, for himself and on behalf of a class of similarly-situated individuals; ABDIRIZAK ADEN FARAH, for himself and on behalf of a class of similarly-situated individuals; JOSE FARIAS CORNEJO; YUSSUF ABDIKADIR; ABEL PEREZ RUELAS, Petitioners-Appellees/Cross-Appellants, and EFREN OROZCO, Petitioner, v. DAVID MARIN, Field Office Director, Los Angeles District, Immigration and Customs Enforcement; KIRSTJEN NIELSEN, Secretary, Homeland Security; MATTHEW G. WHITAKER, Acting Attorney General; WESLEY LEE, Assistant Field Office Director, Immigration and Customs Enforcement; RODNEY PENNER, Captain, Mira Loma Detention Center; SANDRA HUTCHENS, Sheriff of Orange County; NGUYEN, Officer, Officer-in-Charge, Theo Lacy Facility; DAVIS NIGHSWONGER, Captain, Commander, Theo Lacy Facility; MIKE KREUGER, Captain, Operations Manager, James A. Musick Facility; ARTHUR EDWARDS, Officer-in-Charge, Santa Ana City Jail; RUSSELL DAVIS, Jail Administrator, Santa Ana City Jail; JAMES MCHENRY, Director, Executive Office for Immigration Review, Respondents-Appellants/Cross-Appellees. Nos. 13-56706, 13-56755. (9th Cir.). Alejandro Rodriguez is a Mexican citizen. Since 1987, he has also been a lawful permanent resident of the United States. In April 2004, after Rodriguez was convicted of a drug offense and theft of a vehicle, the Government detained him under Section 1226 and sought to remove him from the country. At his removal hearing, Rodriguez argued both that he was not removable and, in the alternative, that he was eligible for relief from removal. In July 2004, an Immigration Judge ordered Rodriguez deported to Mexico. Rodriguez chose to appeal that decision to the Board of Immigration Appeals, but five months later the Board agreed that Rodriguez was subject to mandatory removal. Once again, Rodriguez chose to seek further review, this time petitioning the Court of Appeals for the Ninth Circuit for review of the Board's decision. In May 2007, while Rodriguez was still litigating his removal in the Court of Appeals, he filed a habeas petition in the District Court for the Central District of California, alleging that he was entitled to a bond hearing to determine whether his continued detention was justified. Rodriguez's case was consolidated with another, similar case brought by Alejandro Garcia, and together they moved for class certification. The District Court denied their motion, but the Court of Appeals for the Ninth Circuit reversed, concluding that the proposed class met the certification requirements of Rule 23 of the Federal Rules of Civil Procedure. In Jennings v. Rodriguez, 138 S.Ct. 830 (2018), the Supreme Court held that the Court misapplied the canon of constitutional avoidance to hold that certain immigration detention statutes, namely 8 U.S.C. Sections 1225(b), 1226(a), and 1226(c), implicitly contain a reasonableness determination after which due process concerns require that persons in prolonged mandatory detention are entitled to individualized bond hearings and possibly, conditional release. Although the Court sought and received briefing on the straightforward constitutional question, i.e. without the implicit requirement of due process for persons in arbitrary prolonged detention, whether these detention statutes are constitutional, it declined to reach the constitutional question. The Court instead chose to answer only the question whether the statutory text itself included a limit on prolonged detention or a requirement of individual bond hearings. In an opinion authored by Justice Alito, the Court concluded that as a matter of statutory construction, the only exceptions to indefinite detention were those expressly set forth in the statutes or related regulations. The Court also decided to give the Ninth Circuit some homework on issues not raised by the parties, asking the appellate court to reexamine whether the class should remain certified for consideration of the constitutional issues and available class remedies and whether a Rule 23(b)(2) class action remains the appropriate vehicle in light of Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), and as a means for resolving petitioners' due process clause claims. The composition of the various subclasses may also require reconsideration. Because district courts have vastly more experience with class litigation than appellate courts, the Ninth Circuit also remands these questions to the district court to be decided in the first instance. The Court need not remand the question of jurisdiction over this habeas claim, as it is clear that the Ninth Circuit has jurisdiction over petitioners' claims, as does the district court. First, the Court have jurisdiction under 8 U.S.C. Section 1252(f)(1), which states that no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of Sections 1221-1232, other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated All of the individuals in the putative class are individuals against whom proceedings under such part have been initiated and are pursuing habeas claims, albeit as a class, which nowhere appear affected by Section 1252(f)(1). Second, 8 U.S.C. Section 1252(b)(9) does not preclude jurisdiction. Section 1252(b)(9) restricts judicial review of all questions of law and fact arising from any action taken or proceeding brought to remove an alien, except review of final orders of removal. Here, Petitioners are not asking for review of an order of removal; they are not challenging the decision to detain them in the first place or to seek removal; and they are not even challenging any part of the process by which their removability will be determined. Like the Supreme Court, the Court will not vacate the permanent injunction pending the consideration of these vital constitutional issues. The Court have grave doubts that any statute that allows for arbitrary prolonged detention without any process is constitutional or that those who founded our democracy precisely to protect against the government's arbitrary deprivation of liberty would have thought so. Arbitrary civil detention is not a feature of our American government. Liberty is the norm, and detention prior to trial or without trial is the carefully limited exception. The Court therefore remand with instructions to the district court to consider and determine: (1) whether the class certified by the district court should remain certified for consideration of the constitutional issue and available class remedies; (2) whether classwide injunctive relief is available under 8 U.S.C. Section 1252(f)(1); (3) whether a Rule 23(b)(2) class action (a) remains the appropriate vehicle in light of Walmart Stores, Inc. v. Duke, 564 U.S. 338 (2011), and (b) whether such a class action is appropriate for resolving Petitioners' due process claims; (4) whether composition of the previously identified subclasses should be reconsidered; (5) the minimum requirements of due process to be accorded to all claimants that will ensure a meaningful time and manner of opportunity to be heard; and (6) a reassessment and reconsideration of both the clear and convincing evidence standard and the six-month bond hearing requirement. A full-text copy of the Court of Appeals' November 19, 2018 Order is available at https://tinyurl.com/y8tox67h from Leagle.com. UNITED STATES: Class Certification Sought in Case v. Transport Dept ------------------------------------------------------------------- In the class action lawsuit captioned ANDREW J. BRIGIDA, POLLYANNA L. WANG, SUZANNE M. REBICH; MATTHEW L. DOUGLAS-COOK, the Plaintiffs, vs. ELAINE L. CHAO, Secretary, U.S. Department of Transportation, the Defendant, Case No. 1:16-cv-02227-DLF (D. Colo.), the Plaintiffs move the Court for an Order: a. certifying a class of: "all persons who met the requirements for graduation from a Federal Aviation Administration ("FAA") approved Air Traffic Collegiate Training Initiative ("AT-CTI") program and U.S. Office of Personnel Management qualification standards for employment as an air traffic control specialist on, or prior to, December 31, 2013 and who: (1) were on, or eligible to be on, the FAA's AT-CTI Qualified Applicant Register; (2) received, or was eligible to receive, a recommendation from an AT-CTI institution; and (3) have not been employed by the FAA as an air traffic control series, GS-2152, air traffic control specialist. b. appointing Plaintiffs class representative(s); and c. appointing their attorneys as class counsel.[CC] Attorneys for Plaintiffs: William Perry Pendley, Esq. Christian B. Corrigan, Esq. MOUNTAIN STATES LEGAL FOUNDATION 2596 South Lewis Way Lakewood, CO 80227 Telephone: (303) 292-2021 VECTRUS INC: Settlement in Employee Suit Gets Final Approval ------------------------------------------------------------ Vectrus, 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 28, 2018, that the Company has received final approval of the class settlement in the class action suit initiated by the company's employee, by the District Court following a fairness hearing. Vectrus said, "We are defending a class action employment lawsuit that was initiated in the United States District Court for the Western District of Washington in April 2010 against the predecessor of our Former Parent by individuals who worked on a particular contract in Kuwait after April 12, 2009." The plaintiffs are alleging a breach of employment contract by the predecessor of the company's Former Parent due to an alleged violation of Kuwait labor law. In November 2016, following an interlocutory appeal by Vectrus, the Ninth Circuit Court of Appeals affirmed the District Court's decision certifying a class of plaintiffs. Although the company continues to dispute liability, the parties have negotiated a settlement, the terms of which include a settlement fund of up to $3.75 million, plus payroll taxes for wages paid to class members. The settlement fund includes the judge's award of attorney's fees, costs and class representative fees, with the remainder available to eligible class members pursuant to an allocation formula. The Company received final approval by the District Court following a fairness hearing on October 16, 2018. Vectrus, Inc. provides facility and logistics, and information technology and network communication services to the U.S. government worldwide. It offers facility and logistics services, such as airfield management, ammunition management, civil engineering, communications, emergency services, life support activities, public works, security, transportation operations, warehouse management and distribution, and equipment maintenance, repair, and services for U.S. Army, Air Force, Navy, and Marines. The company was incorporated in 2014 and is headquartered in Colorado Springs, Colorado. VEREIT INC: Trial in ARCP Litigation to Begin Sept. 2019 --------------------------------------------------------- Vereit, 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 a trial date has been set for September 9, 2019, in the case entitled, In re American Realty Capital Properties, Inc. Litigation, No. 15-MC-00040 (AKH). Between October 30, 2014 and January 20, 2015, the Company and certain of its former officers and directors, among other individuals and entities, were named as defendants in ten securities class action complaints filed in the United States District Court for the Southern District of New York. The court consolidated these actions under the caption In re American Realty Capital Properties, Inc. Litigation, No. 15-MC-00040 (AKH) (the "SDNY Consolidated Securities Class Action"). The plaintiffs filed a second amended class action complaint on December 11, 2015, which asserted claims for violations of Sections 11, 12(a)(2) and 15 of the Securities Act of 1933 and Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder. Certain defendants, including the Company and the OP, filed motions to dismiss the second amended class action complaint (or portions thereof), which were granted in part and denied in part by the court. The Company and the OP answered the second amended class action complaint on July 29, 2016. On September 8, 2016, the court issued an order directing plaintiffs to file a third amended complaint to reflect certain prior rulings by the court. The third amended complaint was filed on September 30, 2016 and the defendants were not required to file new answers. Discovery is ongoing. Plaintiffs in the SDNY Consolidated Securities Class Action filed a motion for class certification and a hearing on the motion was held on August 24, 2017. On August 31, 2017, the court issued an order granting plaintiffs' motion for class certification. Defendants' petitions seeking leave to appeal the court's order granting class certification were denied on January 24, 2018. During a status conference with the court on June 11, 2018, the court ordered that all fact depositions should be completed by the end of 2018 and set a trial date for September 9, 2019. The next status conference with the court was scheduled for November 29, 2018. Vereit, Inc. is a full-service real estate operating company which owns and manages one of the largest portfolios of single-tenant commercial properties in the U.S. The Company has a total asset book value of $14.1 billion including approximately 4,000 properties and 93.9 million square feet. Vereit business model provides equity capital to creditworthy corporations in return for long-term leases on their properties. Vereit is a publicly traded Maryland corporation listed on the New York Stock Exchange. VICTOR'S CAFE: Vasquez Seeks Unpaid Wages ----------------------------------------- EUGENIO VASQUEZ, on behalf of himself, FLSA Collective Plaintiffs and the Class, the Plaintiff, vs. VICTOR'S CAFE 52ND STREET, INC. d/b/a VICTOR’S CAFE, and SONIA ZALDIVAR, the Defendants, Case No. 1:18-cv-10844 (S.D.N.Y., Nov. 19, 2018), seeks to recover unpaid wages due to improper rounding of hours worked, liquidated damages, and attorneys' fees and costs, pursuant to the Fair Labor Standards Act and the New York Labor Law. According to the complaint, Plaintiff did not receive proper wage and hour notice or wage statements with his wage payments each week. The wage statements failed to accurately reflect Plaintiff's actual hours worked each week due to Defendants' improper rounding of his hours worked. The Defendants knowingly and willfully operated their business with a policy of not paying Plaintiff, FLSA Collective Plaintiffs and Class Members for all regular or overtime hours due to Defendants' improper rounding of hours worked, in violation of the FLSA and NYLL, the lawsuit says.[BN] Attorneys for Plaintiff, FLSA Collective Plaintiffs and the Class: C.K. Lee, Esq. Anne Seelig, Esq. LEE LITIGATION GROUP, PLLC 30 East 39th Street, Second Floor New York, NY 10016 Telephone: (212) 465-1188 Facsimile: (212) 465-1181 VISA U.S.A.: Rochin Sues over Multiple Debiting of Bank Accounts ---------------------------------------------------------------- MARIA GUADALUPE ROCHIN, individually and on behalf of all others similarly situated, the Plaintiff, vs. VISA U.S.A., INC.; and DOES 1-10, inclusive, the Defendants, Case No. 2:18-cv-09725 (C.D. Cal., Nov. 19, 2018), seeks damages, injunctive relief, and any other available legal or equitable remedies, resulting from the illegal actions of Defendants debiting Plaintiff's bank accounts on a recurring basis without obtaining a written authorization signed or similarly authenticated for preauthorized electronic fund for violation of the Electronic Funds Transfer Act, and violation of the Unfair Competition Law. According to the complaint, on or about October 4, 2017, Plaintiff subscribed to a Personal Training Membership, at a local gym for $160.00 per month. Furthermore, the Training Membership was a month-to-month agreement that Plaintiff could cancel at any time. Plaintiff provided Defendant with very specific authorization to deduct funds from Plaintiff's account on a reoccurring basis. On or about October 5, 2017, Plaintiff cancelled her membership. However, Defendant VISA continued to permit unauthorized deductions funds from Plaintiff's account multiple times and without Plaintiff's consent or authorization. LA Fitness' automatic withdrawals caused Plaintiff to suffer a measurable and significant financial loss for which VISA has since and continually refused to reimburse Plaintiff, the lawsuit says. Visa U.S.A. Inc., a payments technology company, operates retail electronic payments network in the United States. It also administers Visa payment programs.[BN] Attorneys for Plaintiff: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. Kelsey L. Kuberka, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St., Suite 780 Woodland Hills, CA 91367 Telephone: (323) 306-4234 Facsimile: 866-633-0228 E-mail: tfriedman@ toddflaw.com abacon@ toddflaw.com kkuberka@toddflaw.com VITAL PHARMCEUTICALS: Faces Class Action Over Bang Energy Drinks ---------------------------------------------------------------- Rick Archer, writing for Law360, reports that energy drink maker Vital Pharmaceuticals Inc. is facing a new proposed class action -- this time, in Florida federal court relating to the company's Bang energy drinks. [GN] VIVINT SOLAR: Continues to Defend Power Purchase-Related Class Suit ------------------------------------------------------------------- Vivint Solar, 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 the company continues to defend itself from a putative class action suit related to its customers' power purchase agreements. In June 2018, four of the Company's customers, on behalf of themselves and a purported class, named the Company in a putative class action alleging violations of the Consumers Legal Remedies Act and California Business and Professions Code Section 17200 and requesting relief pursuant to Section 1689 of the California Civil Code. The complaint sought (1) rescission of their power purchase agreements' (PPAs) along with restitution to the plaintiffs individually and (2) declaratory and injunctive relief. Vivint Solar said, "Company disputes the allegations in the complaint and intends to vigorously defend itself. The Company is unable to estimate the amount or range of potential loss, if any, at this time." Vivint Solar, Inc. provides distributed solar energy to residential, commercial, and industrial customers in the United States. The company operates in two segments, Residential, and Commercial and Industrial. The company was formerly known as V Solar Holdings, Inc. and changed its name to Vivint Solar, Inc. in April 2014. Vivint Solar, Inc. was founded in 2011 and is headquartered in Lehi, Utah. WELLS FARGO: Judge Orders Class to Amend Claims in Consumer Suit ---------------------------------------------------------------- Robert Kahn, writing for Courthouse News Service, reported that a federal judge ordered a class on Nov. 19 to amend their claims that Wells Fargo encourages retailers to build the fees they must pay Wells Fargo to use its credit cards into the price of goods and services, while telling customers the goods and services are being financed at zero percent interest, unjustly enriching itself in violation of lending and consumer laws. WELLS FARGO: Lawsuits over Retail Sales Practices Ongoing --------------------------------------------------------- Wells Fargo & Company 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 the company continues to defend itself from various suits related to the company's retail sales practices. Federal, state, and local government agencies, including the Department of Justice, the United States Securities and Exchange Commission and the United States Department of Labor, and state attorneys general, including the New York Attorney General, and prosecutors' offices, as well as Congressional committees, have undertaken formal or informal inquiries, investigations or examinations arising out of certain retail sales practices of the Company that were the subject of settlements with the BCFP, the OCC and the Office of the Los Angeles City Attorney announced by the Company on September 8, 2016. These matters are at varying stages. The Company has responded, and continues to respond, to requests from a number of the foregoing and has discussed the resolution of some of the matters, including with a multi-state attorneys general group. In October 2018, the Company entered into an agreement to resolve the New York Attorney General's investigation pursuant to which the Company will pay $65 million to the State of New York. In addition, a number of lawsuits have also been filed by non-governmental parties seeking damages or other remedies related to these retail sales practices. First, various class plaintiffs purporting to represent consumers who allege that they received products or services without their authorization or consent have brought separate putative class actions against the Company in the United States District Court for the Northern District of California and various other jurisdictions. In April 2017, the Company entered into a settlement agreement in the first-filed action, Jabbari v. Wells Fargo Bank, N.A., to resolve claims regarding certain products or services provided without authorization or consent for the time period May 1, 2002 to April 20, 2017. Pursuant to the settlement, the Company will pay $142 million for remediation, attorneys' fees, and settlement fund claims administration. In the unlikely event that the $142 million settlement total is not enough to provide remediation, pay attorneys' fees, pay settlement fund claims administration costs, and have at least $25 million left over to distribute to all class members, the Company will contribute additional funds to the settlement. In addition, in the unlikely event that the number of unauthorized accounts identified by settlement class members in the claims process and not disputed by the claims administrator exceeds plaintiffs' 3.5 million account estimate, the Company will proportionately increase the $25 million reserve so that the ratio of reserve to unauthorized accounts is no less than what was implied by plaintiffs' estimate at the time of the district court's preliminary approval of the settlement in July 2017. The district court issued an order granting final approval of the settlement on June 14, 2018. Several appeals of the district court's order granting final approval of the settlement have been filed with the United States Court of Appeals for the Ninth Circuit. Second, Wells Fargo shareholders are pursuing a consolidated securities fraud class action in the United States District Court for the Northern District of California alleging certain misstatements and omissions in the Company's disclosures related to sales practices matters. The Company has entered into a settlement agreement to resolve this matter pursuant to which the Company will pay $480 million. The amount was fully accrued as of March 31, 2018. The district court issued an order granting preliminary approval of the settlement on September 4, 2018. Third, Wells Fargo shareholders have brought numerous shareholder derivative lawsuits asserting breach of fiduciary duty claims, among others, against current and former directors and officers for their alleged failure to detect and prevent sales practices issues. These actions have been filed or transferred to the United States District Court for the Northern District of California and California state court for coordinated proceedings. An additional lawsuit asserting similar claims in Delaware state court has been stayed. Fourth, multiple employment litigation matters have been brought against Wells Fargo, including an Employee Retirement Income Security Act (ERISA) class action in the United States District Court for the District of Minnesota on behalf of 401(k) plan participants that has now been dismissed; a class action in the United States District Court for the Northern District of California on behalf of team members who allege that they protested sales practice misconduct and/or were terminated for not meeting sales goals that has now been dismissed, and the company had entered into a framework with plaintiffs' counsel to address individual claims that have been asserted; various wage and hour class actions brought in federal and state court in California, New Jersey, and Pennsylvania on behalf of non-exempt branch based team members alleging that sales pressure resulted in uncompensated overtime; and multiple single plaintiff Sarbanes-Oxley Act complaints and state law whistle blower actions filed with the United States Department of Labor or in various state courts alleging adverse employment actions for raising sales practice misconduct issues. Wells Fargo & Company, a diversified financial services company, provides retail, commercial, and corporate banking services to individuals, businesses, and institutions. The company's Community Banking segment offers checking and savings accounts; credit and debit cards; and automobile, student, mortgage, home equity, and small business loans. Wells Fargo & Company was founded in 1852 and is headquartered in San Francisco, California. WELLS FARGO: Still Defends Automobile Lending Related Suit ---------------------------------------------------------- Wells Fargo & Company 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 the company continues to defend itself from a consolidated class action suit related to automobile lending. On April 20, 2018, the Company entered into consent orders with the Office of the Comptroller of the Currency (OCC) and the Bureau of Consumer Financial Protection (BCFP) to resolve, among other things, investigations by the agencies into the Company's compliance risk management program and its past practices involving certain automobile collateral protection insurance (CPI) policies and, certain mortgage interest rate lock extensions. The consent orders require remediation to customers and the payment of a total of $1 billion in civil money penalties to the agencies. In July 2017, the Company announced a plan to remediate customers who may have been financially harmed due to issues related to automobile collateral protection insurance (CPI) policies purchased through a third-party vendor on their behalf. Multiple putative class action cases alleging, among other things, unfair and deceptive practices relating to these CPI policies, have been filed against the Company and consolidated into one multi-district litigation in the United States District Court for the Central District of California. A putative class of shareholders also filed a securities fraud class action against the Company and its executive officers alleging material misstatements and omissions of CPI-related information in the Company's public disclosures. Former team members have also alleged retaliation for raising concerns regarding automobile lending practices. In addition, the Company has identified certain issues related to the unused portion of guaranteed automobile protection (GAP) waiver or insurance agreements between the dealer and, by assignment, the lender, which will result in refunds to customers in certain states. Allegations related to the CPI and GAP programs are among the subjects of shareholder derivative lawsuits pending in federal and state court in California. The court dismissed the state court action in September 2018, but granted plaintiffs leave to file an amended complaint by November 23, 2018. Wells Fargo said, "These and other issues related to the origination, servicing, and/or collection of consumer automobile loans, including related insurance products, have also subjected the Company to formal or informal inquiries, investigations, or examinations from federal and state government agencies, including a multi-state attorneys general group that is conducting an investigation into CPI and GAP. The Company anticipates it may continue to identify and remediate issues related to historical practices concerning the origination, servicing, and/or collection of consumer automobile loans." Wells Fargo & Company, a diversified financial services company, provides retail, commercial, and corporate banking services to individuals, businesses, and institutions. The company's Community Banking segment offers checking and savings accounts; credit and debit cards; and automobile, student, mortgage, home equity, and small business loans. Wells Fargo & Company was founded in 1852 and is headquartered in San Francisco, California. WELLS FARGO: Still Defends Mortgage Rate Lock Extension Fees Suit ----------------------------------------------------------------- Wells Fargo & Company 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 the company continues to defend itself from a class action suit related to mortgage rate lock extension fees. On April 20, 2018, the Company entered into consent orders with the Office of the Comptroller of the Currency (OCC) and the Bureau of Consumer Financial Protection (BCFP) to resolve, among other things, investigations by the agencies into the Company's compliance risk management program and its past practices involving certain automobile collateral protection insurance (CPI) policies and certain mortgage interest rate lock extensions. The consent orders require remediation to customers and the payment of a total of $1 billion in civil money penalties to the agencies. On October 4, 2017, the Company announced plans to reach out to all home lending customers who paid fees for mortgage rate lock extensions requested from September 16, 2013, through February 28, 2017, and to provide refunds, with interest, to customers who believe they should not have paid those fees. The Company was named in a putative class action, filed in the United States District Court for the Northern District of California, alleging violations of federal and state consumer fraud statutes relating to mortgage rate lock extension fees. The Company filed a motion to dismiss and the court granted the motion. Subsequently, a putative class action was filed in the United States District Court for the District of Oregon, raising similar allegations. In addition, former team members have asserted claims, including in pending litigation, that they were terminated for raising concerns regarding mortgage interest rate lock extension practices. Allegations related to mortgage interest rate lock extension fees are also among the subjects of two shareholder derivative lawsuits filed in California state court. Wells Fargo said, "This matter has also subjected the Company to formal or informal inquiries, investigations or examinations from other federal and state government agencies, including a multi-state attorneys general group." Wells Fargo & Company, a diversified financial services company, provides retail, commercial, and corporate banking services to individuals, businesses, and institutions. The company's Community Banking segment offers checking and savings accounts; credit and debit cards; and automobile, student, mortgage, home equity, and small business loans. Wells Fargo & Company was founded in 1852 and is headquartered in San Francisco, California. WILLIAMS INDUSTRIAL: Budde Plaintiffs Seek Appeal from Nixed Suit ----------------------------------------------------------------- Williams Industrial Services Group Inc. (formerly known as Global Power Equipment Group Inc. until June 2018) disclosed in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2018, that the "Budde" putative shareholder class action has been brought to the Fifth Circuit after the third amended complaint has been dismissed. The putative shareholder class action is captioned Budde v. Global Power Equipment Group Inc., and was filed in the U.S. District Court for the Northern District of Texas naming the Company and certain former officers as defendants. This action and another action were filed on May 13, 2015 and June 23, 2015, respectively, and on July 29, 2015, the court consolidated the two actions and appointed a lead plaintiff. On May 1, 2017, the lead plaintiff filed a second consolidated amended complaint that names the Company and three of its former officers as defendants. It alleges violations of the federal securities laws arising out of matters related to the Company's restatement of certain financial periods and claims that the defendants made material misrepresentations and omissions of material fact in certain public disclosures during the putative class period in violation of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, as amended, and Rule 10b-5, as promulgated thereunder. The plaintiffs seek class certification on behalf of persons who acquired the Company's stock between September 7, 2011 and May 6, 2015, monetary damages of "more than US$200 million" on behalf of the putative class and an award of costs and expenses, including attorneys' fees and experts' fees. The Company intends to defend against this action. On June 26, 2017, the Company and the individual defendants filed a motion to dismiss the complaint. After full briefing, on December 27, 2017, the court issued a memorandum opinion and order granting the motion to dismiss, allowing the plaintiffs until January 15, 2018 to file an amended complaint. The court found that, with respect to each of the defendants, plaintiffs failed to plead facts supporting a strong inference of scienter, or the required intent to deceive, manipulate or defraud, or act with severe recklessness. On January 15, 2018, the plaintiffs filed their third amended complaint, and in response the Company filed a renewed motion to dismiss. After full briefing and oral argument, on September 11, 2018, the court dismissed with prejudice the third amended complaint. The court found that, even with Plaintiffs' amended allegations, plaintiff failed to plead facts supporting a strong inference of scienter. Also on September 11, 2018, plaintiff filed a notice of appeal to the Fifth Circuit. The Company said, "Litigation is subject to many uncertainties, and the outcome of this action is not predictable with assurance. At this time, the Company is unable to predict the possible loss or range of loss, if any, associated with the resolution of this litigation, or any potential effect such may have on the Company or its business or operations." Formerly known as Global Power Equipment Group, Williams Industrial Services Group has been safely helping plant owners and operators enhance asset value for more than 50 years. The Company provides a broad range of general and specialty construction, maintenance and modification, and plant management support services to the nuclear, hydro and fossil power generation, pulp and paper, refining, petrochemical and other process and manufacturing industries. Williams' mission is to be the preferred provider of construction, maintenance, and specialty services through commitment to superior safety performance, focus on innovation, and dedication to delivering unsurpassed value to its customers. ZEBRA TECHNOLOGIES: Class Suit over Symbol Acquisition Concluded ---------------------------------------------------------------- Zebra Technologies Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 6, 2018, for the quarterly period ended September 29, 2018, that a court has entered the Final Judgment Approving Class Action Settlement and Order of Dismissal with Prejudice. In connection with the acquisition of the Enterprise business from Motorola Solutions, Inc., the Company acquired Symbol Technologies, Inc., a subsidiary of Motorola Solutions ("Symbol"). A putative federal class action lawsuit, Waring v. Symbol Technologies, Inc., et al., was filed on August 16, 2005 against Symbol Technologies, Inc. and two of its former officers in the United States District Court for the Eastern District of New York by Robert Waring. After the filing of the Waring action, several additional purported class actions were filed against Symbol and the same former officers making substantially similar allegations (collectively, "the New Class Actions"). The Waring action and the New Class Actions were consolidated for all purposes and on April 26, 2006, the Court appointed the Iron Workers Local No. 580 Pension Fund as lead plaintiff and approved its retention of lead counsel on behalf of the putative class. At a mediation held on March 15, 2018, the parties reached an agreement in principle to settle the matter, and Zebra reached agreements with certain of its insurers to fund the settlement and therefore, no amounts have been recorded. On October 30, 2018, the Court entered the Final Judgment Approving Class Action Settlement and Order of Dismissal with Prejudice. Zebra Technologies Corporation, together with its subsidiaries, designs, manufactures, and sells a range of automatic identification and data capture (AIDC) products worldwide. Zebra Technologies Corporation was founded in 1969 and is headquartered in Lincolnshire, Illinois. ZESTFINANCE INC: Court Stays Titus Suit Pending Appeal ------------------------------------------------------ The United States District Court for the Western District of Washington, Tacoma, issued an Order granting Defendants' Motion to Stay Proceedings Pending Appeal of Order Denying Arbitration in the case captioned TERESA TITUS, as an individual and as a representative of the class, Plaintiff, v. ZESTFINANCE, INC., BLUECHIP FINANCIAL, and DOUGLAS MERRILL, Defendants. Case No. 18-5373 RJB. (W.D. Wash.). This putative class action arises from a series of loans the Defendants made to the Plaintiff, which the Plaintiff alleges carry triple digit interest rates, sometimes exceeding 400%, that violate Washington State usury law, RCW 19.52.030, the Washington Consumer Protection Act (WCPA), and unjustly enriches the Defendants. The Plaintiff also makes a claim against the Defendants for violation of Racketeer Influenced Corrupt Organizations Act (RICO), asserting that the Defendants associated for the common purpose of profiting off of the collection of unlawful debt by offering and collecting on loans to consumers throughout the United States. A stay is not a matter of right, the Court held. It is instead an exercise of judicial discretion that is dependent upon the circumstances of the particular case. In deciding whether to issue a stay in the Ninth Circuit, courts consider four questions: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. Strong Showing of Likelihood of Success on the Merits The parties dispute the degree of success the Defendants must show to prevail on this factor. The Ninth Circuit acknowledges that there is some uncertainty regarding the degree of success a party seeking a stay must show. The Defendants here have shown at a minimum, that they have a substantial case for relief on the merits. The decision on whether to order arbitration was a close one. This factor weighs in favor of Defendants. Irreparable Injury Absent a Stay The Defendants point out that they will be injured absent a stay. They point out that they will be forced to engage in extensive discovery, especially if this case is certified as a class action) that will be significantly unnecessary if their motion to compel arbitration is granted. This factor weighs in favor of Defendants. Substantial Injury to Other Parties Interested in the Proceeding The Plaintiff points out that she will continue to have to pay what, in her view, is an illegal loan, if a stay is granted. She asserts that other potential members of the class are also injured by staying the case. She maintains that they will also have to pay on their illegal loans, and that the individuals who take these types of loans are often people of little means. While the Plaintiff's and other potential parties to the litigation are in a rough spot, it is not clear that granting a stay will materially change this situation quickly. This factor weighs slightly in favor of the Plaintiff. Public Interest There is a strong public policy in favor of arbitration. There is a strong policy in Washington against usurious loans. This factor is neutral on whether to grant a stay. Conclusion on Motion for a Stay The Defendants' Motion to Stay Proceedings Pending Appeal of Order Denying Arbitration should be granted. The Defendants have demonstrated that they have a substantial case for relief on the merits of their appeal. They have shown that, absent a stay, they would be forced to engage in at least some unnecessary discovery if the Ninth Circuit overturns this Court decision on the motion to compel. While the Plaintiff has shown that she and the other potential class members will be injured absent a stay, on balance, a stay is warranted. The motion for a stay should be granted. A full-text copy of the District Court's November 19, 2018 Order is available at https://tinyurl.com/ya4jk6gg from Leagle.com. Teresa Titus, an individual and as a representative of the class, Plaintiff, represented by Beth E. Terrell -- bterrell@terrellmarshall.com -- TERRELL MARSHALL LAW GROUP PLLC, Elizabeth Anne Adams -- eadams@terrellmarshall.com -- TERRELL MARSHALL LAW GROUP PLLC, E. Michelle Drake -- emdrake@bm.net -- BERGER & MONTAGUE, P.C., pro hac vice, Jennifer Rust Murray -- jmurray@terrellmarshall.com -- TERRELL MARSHALL LAW GROUP PLLC, John G. Albanese -- jalbanese@bm.net -- BERGER & MONTAGUE, P.C., pro hac vice & Matt Wessler, GUPTA WESSLER PLLC, pro hac vice. ZestFinance, Inc. & Douglas Merrill, Defendants, represented by Thomas C. Rubin - tomrubin@quinnemanuel.com - QUINN EMANUEL URQUHART & SULLIVAN LLP, John Baumann - johnwbaumann@gmail.com - QUINN EMANUEL URQUHART & SULLIVAN LLP, pro hac vice & Shon Morgan - shonmorgan@quinnemanuel.com - QUINN EMANUEL URQUHART & SULLIVAN LLP, pro hac vice. BlueChip Financial, Defendant, represented by Kay Fitz-Patrick -FITZPATRICKK BALLARDSPAHR.COM -BALLARD SPAHR LLP, pro hac vice, Scott M. Pearson - PEARSONS BALLARDSPAHR.COM - BALLARD SPAHR LLP, pro hac vice & Timothy E. Steen , BERESFORD BOOTH PLLC, A145 3rd Avenue South, Edmonds, WA 98020 ZICAM LLC: Court Approves Stipulation of Settlement in Melgar Suit ------------------------------------------------------------------ In the case captioned YESENIA MELGAR, on Behalf of Herself and all Others Similarly Situated, Plaintiff, v. ZICAM LLC and MATRIXX INITIATIVES, INC., Defendants, Case No. 2:14-cv-00160-MCE-AC (E.D. Cal.), District Judge Morrison C. England granted final approval of the proposed class action settlement between the parties ("Stipulation of Settlement"). The Settlement Class is defined as: all residents of the United States of America who, from February 15, 2011 through June 5, 2018, purchased any of the Zicam Products (Zicam RapidMelts Original, RapidMelts Ultra, Oral Mist, Ultra Crystals, Liqui-Lozenges, Lozenges Ultra, Soft Chews, Medicated Fruit Drops, and Chewables). Excluded from this definition are the Released Persons. On Nov. 15, 2018, the Court held a duly noticed final approval hearing to consider: (1) whether the terms and conditions of the Stipulation of Settlement are fair, reasonable and adequate; (2) whether a judgment should be entered dismissing the complaint on the merits and with prejudice in favor of Defendants and against all persons or entities who are Settlement Class members herein who have not requested exclusion from the Settlement Class; and (3) whether and in what amount to award attorneys' fees, costs and expenses to Class Counsel and whether and in what amount to make an incentive award to Plaintiff Yesenia Melgar. The Court, having considered all matters submitted to it at the hearing and otherwise, approves the Stipulation of Settlement as fair, reasonable and adequate, and the Settlement Class Members and the Parties are directed to consummate the Stipulation of Settlement in accordance with its terms and conditions. The Court awards Class Counsel attorneys' fees and expenses in the amount of $5,333,333.33. The Court also orders payment of an incentive award(s) in the amount(s) of $10,000 to Plaintiff Yesenia Melgar. These amounts are to be paid in the time and manner described in the Stipulation of Settlement. The Action is, therefore, dismissed with prejudice and without costs as against Defendants and the Released Persons. A copy of the Court's Order and Judgment dated Nov. 20, 2018 is available at https://bit.ly/2Ec7Pzb from Leagle.com. Yesenia Melgar, Plaintiff, represented by Joseph I. Marchese -- jmarchese@bursor.com -- Bursor & Fisher, P.A., pro hac vice, Lawrence Timothy Fisher -- lfisher@bursor.com -- Bursor and Fisher, PA, Scott A. Bursor -- sbursor@bursor.com -- Bursor & Fisher PA & Thomas Andrew Reyda -- treyda@bursor.com -- Bursor & Fisher, P.A. Zicam LLC & Matrixx Initiatives, Inc., Defendants, represented by Alan J. Lazarus -- alan.lazarus@dbr.com -- Drinker Biddle & Reath LLP, Ashley Neglia --ashley.neglia@kirkland.com -- Kirkland & Ellis LLP, Kathryn Michelle Jackson -- Kathryn.jackson@dbr.com -- Drinker Biddle & Reath, LLP, Leslie M. Smith -- leslie.smith@kirkland.com -- Kirkland & Ellis LLP, pro hac vice, Robyn E. Bladow , Kirkland & Ellis LLP & William A. Hanssen -- William.hanssen@dbr.com -- Drinker Biddle and Reath LLP. Patrick S. Sweeney, Claimant, pro se. ZILLOW GROUP: Wins Dismissal of Consolidated Class Action --------------------------------------------------------- Zillow Group, 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 the company's motion to dismiss the consolidated class action suit pending in U.S. District Court for the Western District of Washington has been granted. In August and September 2017, two purported class action lawsuits were filed against the company and certain of its executive officers, alleging, among other things, violations of federal securities laws on behalf of a class of those who purchased the company's common stock between February 12, 2016 and August 8, 2017. One of those purported class actions, captioned Vargosko v. Zillow Group, Inc. et al, was brought in the U.S. District Court for the Central District of California. The other purported class action lawsuit, captioned Shotwell v. Zillow Group, Inc. et al, was brought in the U.S. District Court for the Western District of Washington. The complaints allege, among other things, that during the period between February 12, 2016 and August 8, 2017, the company issued materially false and misleading statements regarding its business practices. The complaints seek to recover, among other things, alleged damages sustained by the purported class members as a result of the alleged misconduct. In November 2017, an amended complaint was filed against the company and certain of its executive officers in the Shotwell v. Zillow Group class action lawsuit, extending the beginning of the class period to November 17, 2014. In January 2018, the Vargosko v. Zillow Group purported class action lawsuit was transferred to the U.S. District Court for the Western District of Washington and consolidated with the Shotwell v. Zillow Group purported class action lawsuit. In February 2018, the plaintiffs filed a consolidated amended complaint, and in April 2018, the company filed its motion to dismiss the consolidated amended complaint. In May 2018, the plaintiffs filed their opposition to the company's motion to dismiss the consolidated amended complaint. In June 2018, the company filed its reply in support of its motion to dismiss the consolidated amended complaint. In October 2018, the company's motion to dismiss was granted, though the plaintiffs have 45 days to attempt to cure the defects in their consolidated amended complaint. Zillow Group said, "We have denied the allegations of wrongdoing and intend to vigorously defend the claims in this lawsuit. We have not recorded an accrual related to this lawsuit as of September 30, 2018 and December 31, 2017, as we do not believe a loss is probable." Zillow Group, Inc. operates real estate and home-related information marketplaces on mobile and the Web in the United States. The company offers a portfolio of brands and products to enable consumers find information about homes and connect with local professionals. Zillow Group, Inc. was incorporated in 2004 and is headquartered in Seattle, Washington. ZOE'S KITCHEN: Continues to Defend Four Class Suits --------------------------------------------------- Zoe's Kitchen, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 13, 2018, for the quarterly period ended September 30, 2018, that the Company is a defendant in four separate class actions. A first putative class action captioned Jonathan Reigrod, Individually and on Behalf of All Others Similarly Situated v. Zoe's Kitchen, Inc., Greg Dollarhyde, Kevin Miles, Thomas Baldwin, Sue Collyns, Cordia Harrington and Alec Taylor (Case No. 1:18-cv-01536-UNA), was filed in the United States District Court for the District of Delaware on October 3, 2018. The complaint alleges claims under Sections 14(a) and Section 20(a) of the Exchange Act 15 U.S.C. Sections 78n(a) and 78t(a) and SEC Rule 14a-9, 17 C.F.R. Section 240.14a-9, against the Company and the director defendants in connection with the proposed Merger. The complaint alleges that the preliminary proxy statement filed by the Company with the SEC on September 25, 2018 omitted certain material information. Specifically, plaintiff alleges, among other things, that the preliminary proxy statement omitted certain information relating to Mr. Ronald Shaich's role with the Company following the consummation of the Merger and his relationship with the Company's largest stockholder, and certain details concerning the financial analyses and valuation methodologies used by Piper Jaffray in connection with its fairness opinion. The complaint seeks (i) to preliminarily and permanently enjoin the defendants from proceeding with, and consummating, or closing the Merger unless and until the defendants disclose the information allegedly omitted from the preliminary proxy statement, (ii) rescission, to the extent already implemented, of the Merger Agreement or any of the terms thereof, or granting the plaintiff and the putative class rescissory damages, and (iii) the award of unspecified damages, costs and disbursements, including reasonable attorneys' and expert fees and expenses, to the plaintiff and the putative class. A second putative class action captioned Mary Toth, on Behalf of Herself and All Others Similarly Situated v. Zoe's Kitchen, Inc., Greg Dollarhyde, Thomas Baldwin, Sue Collyns, Cordia Harrington, Kevin Miles and Alec Taylor (Civil Action No. 4:18-cv-0706), was filed in the United States District Court for the Eastern District of Texas, Sherman Division on October 5, 2018. The complaint alleges claims for breach of fiduciary duties and claims under Section 20(a) of the Exchange Act against the director defendants, and claims under Section 14(a) of the Exchange Act and SEC Rule 14a-9, 17 C.F.R. Section 240.14a-9, against the Company and the director defendants in connection with the proposed Merger. The complaint alleges that the director defendants breached their fiduciary duties by entering into the Merger through a "flawed and unfair process", failing to take steps to maximize the value of the Company and failing to disclose certain material information. The complaint also alleges that the preliminary proxy statement filed by the Company with the SEC on September 25, 2018 omitted or misrepresented certain material information in violation of the Exchange Act, including, among other things, information regarding the following: any confidentiality agreements entered into between the Company and any interested third party; the role of the Special Committee; the role of Mr. Ronald Shaich in the sale process; and the financial analyses and valuation methodologies used by Piper Jaffray in connection with its fairness opinion. The complaint seeks (i) to enjoin defendants from proceeding with, and consummating, or closing the Merger; (ii) if the Merger is consummated, to rescind and set aside the Merger or to award plaintiff and the putative class rescissory damages; (iii) a declaration that the Merger Agreement was agreed to in breach of the director defendants' fiduciary duties and therefore unenforceable; (iv) to direct the director defendants to exercise their fiduciary duties to commence a sales process that is "reasonably designed to secure the best possible consideration for" the Company; (v) an accounting for the unspecified damages sustained by the plaintiff and the putative class; and (vi) unspecified costs, including reasonable attorneys' and expert fees and expenses, to the plaintiff. A third putative class action captioned Jo-Ann Calcagno, Individually and on Behalf of All Others Similarly Situated, v. Zoe’s Kitchen, Inc., Greg Dollarhyde, Thomas Baldwin, Sue Collyns, Cordia Harrington, Kevin Miles, and Alec Taylor, (Case No. 1:18-cv-01571-MN), was filed in the United States District Court for the District of Delaware on October 11, 2018. The complaint alleges claims under Sections 14(a) and Section 20(a) of the Exchange Act, 15 U.S.C. Sections 78n(a) and 78t(a), and SEC Rule 14a-9, 17 C.F.R. Section 240.14a-9, against the defendants in connection with the proposed Merger. The complaint alleges that the Proxy Statement omitted certain material information relating to the Merger, including, among other things, (i) certain details relating to the financial analyses and valuation methodologies used by Piper Jaffray in connection with its fairness opinion, (ii) certain provisions of the confidentiality agreements entered into by the Company and (iii) the fact that Ron Shaich will serve as Chairperson of the Surviving Corporation. The complaint seeks (i) to enjoin the defendants from proceeding with, and consummating, or closing the Merger, (ii) in the event the defendants consummate the Proposed Transaction, to rescind it and set it aside or award rescissory damages, (iii) to direct the defendants to file a proxy statement that states all material facts required in it or necessary to make the statements contained therein not misleading, (iv) to declare that the defendants violated Sections 14(a) and/or 20(a) of the Exchange Act and Rule 14a-9 promulgated thereunder, and (v) the award of unspecified costs, including reasonable attorneys' and experts' fees, to the plaintiff. A fourth putative class action captioned Jason Connole, Individually and on Behalf of All Others Similarly Situated, v. Zoe’s Kitchen, Inc., Greg Dollarhyde, Kevin Miles, Thomas Baldwin, Sue Collyns, Cordia Harrington and Alec Taylor (Case No. 1:99-mc-09999), was filed in the United States District Court for the District of Delaware on October 12, 2018. The complaint alleges claims under Sections 14(a) and Section 20(a) of the Exchange Act, 15 U.S.C. Sections 78n(a) and 78t(a), and SEC Rule 14a-9, 17 C.F.R. Section 240.14a-9, against the defendants in connection with the proposed Merger. The complaint alleges that the Proxy Statement omitted or misrepresents certain material information, including, among other things, certain information relating to (i) potential conflicts of interest faced by Company insiders and Piper Jaffray, (ii) the background process leading to the Merger and (iii) certain details concerning the financial analyses and valuation methodologies used by Piper Jaffray in connection with its fairness opinion. The complaint seeks (i) to preliminarily and permanently enjoin the defendants from proceeding with, consummating, or closing the Merger, unless and until the defendants disclose the information allegedly omitted from the proxy statement, (ii) in the event the defendants consummate the Merger, to rescind it and set it aside or award rescissory damages, (iii) ) to declare that the defendants violated Sections 14(a) and/or 20(a) of the Exchange Act and Rule 14a-9 promulgated thereunder, and (iv) the award of unspecified costs, including reasonable attorneys' and experts' fees, to the plaintiff. The Company and the director defendants deny the allegations, believe that each of the above-referenced lawsuits is wholly without merit, and intend to vigorously defend these actions, as necessary. The Company believes that no additional disclosure is required to supplement any of the disclosures contained in the Company's definitive proxy materials disseminated to holders of record of the Company's common stock to enable such holders to make a fully informed voting decision whether to adopt the Merger Agreement. As such, the Company has made no accruals for these matters. However, to eliminate certain administrative burdens, unnecessary Company expenses and uncertainties inherent in any pending litigation, the Company has voluntarily made certain additional disclosures set forth in response to plaintiffs' claims and allegations as referenced in the Company's Form 8-K filed on October 29, 2018. Zoe's Kitchen said, "We are currently involved in various claims and legal actions that arise in the ordinary course of our business, including claims resulting from employment related matters. None of these claims, most of which are covered by insurance, has had a material effect on us, and as of the date of this report, we are not party to any material pending legal proceedings and are not aware of any claims that could have a material adverse effect on our business, financial condition, results of operations or cash flows. However, a significant increase in the number of these claims or an increase in amounts owing under successful claims could materially and adversely affect our business, financial condition, results of operations or cash flows." Zoe's Kitchen, Inc., through its subsidiaries, develops and operates a chain of fast-casual restaurants. It operates a range of restaurant formats, including in-line, end-cap, and free-standing restaurants. Zoe's Kitchen, Inc. was founded in 1995 and is based in Plano, Texas. As of November 21, 2018, Zoe's Kitchen, Inc. operates as a subsidiary of Cava Group, Inc. ********* 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. 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