/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/181213.mbx C L A S S A C T I O N R E P O R T E R Thursday, December 13, 2018, Vol. 20, No. 249 Headlines AAC HOLDINGS: Has Settlement with Former Officer Menz ALDI INC: Court Denies Bid to Dismiss Dieter ADA Suit ALLIED EAGLE: Bermudez Wants to Send Notice to FLSA Class Members ALPHA TECHNOLOGIES: Two Collectives Certified in Martinez FLSA Suit ANGIE'S LIST: Strauss Has Until Dec. 18 to File Notice of Appeal ATLANTIC CREDIT: Certification of Class Sought in Bencomo Suit ATLANTIC CREDIT: Proceedings in Bencomo's Class Cert. Bid Stayed BANK OF AMERICA: Vasquez Files Suit in Cal. Super. Ct. BARNES & NOBLE: Appeal in Bernardino Class Action Still Pending BARNES & NOBLE: Cafe Managers' Class Suit Ongoing BECTON DICKINSON: Defending Against 3,154 Hernia Product Claims BIG MIKE'S: Magistrate Recommends Conditional FLSA Certification BLACKBOARD INC: McMechen Suit Alleges Equal Pay Act Violation BONNIER CORP: Friske Seeks to Certify Class of Mich. Subscribers BOYSEN USA: Auto Shops Hit Overpriced Automotive Exhaust Systems BROOKS BROTHERS: Phipps Discrimination Suit Removed to C.D. Calif. CAESARS ENTERTAINMENT: Castillo TCPA Suit Moved to N.D. Nevada CAMBIUM LEARNING: Strahan Balks at Merger Deal with Veritas CAVALRY PORTFOLIO: Class Certification Sought in Montoya Suit COHEN & SLAMOWITZ: Hallmark FDCA Suit Settlement Has Final Approval CORAL CAST: Niebles Sues Over Unpaid Overtime Wages COVENTRY HEALTH: Arbitration Denial in 206 Golden Suit Affirmed CV SCIENCES: Time to Reply to Consolidated Securities Suit Extended DHI MORTGAGE: Can Compel Arbitration in Ahlstrom FLSA Suit DIGNITY HEALTH: Cruz Files Suit in Cal. Super. Ct. DSV AIR & SEA: Pitarro Files Class Suit in Cal. Super. Ct. ESTERLINE TECH: Kent Sues Over TransDigm Merger EVANS HOTELS: Protective Order Bid in Rutherford Suit Partly OK'd FAMOUS BOURBON: Ramos Moves for Class Certification Under FLSA FIFTH THIRD: Protective Order Bid in Hendrickson FDCA Suit Denied FIRST SOLAR: Court Narrows Claims in Securities Fraud Suit FLORIDA: Merchison Asks to Extend to Feb. 4 Time to File Writ FOUR SEASONS: Olsen Sues Over Blind-inaccessible Website GC SERVICES: Renewed Class Cert. Bid in Ocampo FDCPA Suit Denied GOVERNMENT EMPLOYEES: Court Allows Bid to Amend Sullivan Suit GRUBHUB INC: Court Rules on Lawson's Bid for Relief from Judgment H & D ELECTRIC: Faces Magana Class Action in Cal. Super. Ct. HEARTLAND PAYMENT: Torres & Martinez Can't Intervene in Edwards HH FRANCHISING: Class of In-Home Caregivers Certified in "Geiger" HSBC FINANCE: Lewis Sues Over Erroneous Credit Reports HUNTER WARFIELD: Nimmer Moves to Certify Class Under Damasco ILLINOIS: Rauner Dismissed w/ Prejudice from Monroe Prisoners Suit JM SMUCKER: Submits Stipulation and Joint Case Management Order JULIAN SPENCE: Heberle Moves to Certify Class of DRIP Purchasers KENAN ADVANTAGE: Ballard Civil Rights Suit Removed to C.D. Calif. L.P.C.C. RESTAURANT: Weng Sues over Unpaid Wages, Tip-Pooling LUCAS CONSTRUCTION: Polanco Sues Over Unpaid Overtime Wages MANU INC: Tenesaca Seeks Minimum Wage & Overtime Pay MDL 2391: Court Denies Bid to Vacate Remand Order for 3 Actions MDL 2437: Court Transfers Home Depot Suit to N.D. Georgia MDL 2672: $48MM Settlement in Clean Diesel Suit Has Prelim Approval MDL 2738: Court Transfers 3 Actions to District of New Jersey MDL 2741: Court Transfers 2 Actions to N. District of California MDL 2741: Simmons Suit v Monsanto over Roundup Sales Consolidated MDL 2741: Singletary Suit v Monsanto over Roundup Consolidated MDL 2741: Sixbury Suit v Monsanto over Roundup Sales Consolidated MDL 2741: Wooley Suit v Monsanto over Roundup Sales Consolidated MDL 2742: Court Transfers Zornoza Suit to S.D. New York MDL 2744: Claims in Monostable Electronic Gearshift Suit Narrowed MDL 2795: Court Transfers Palkon Lawsuit to District of Minnesota MDL 2800: Court Transfers 2 Suits v. Equifax to N.D. Georgia MDL 2800: Court Transfers Bordelon Suit to N. District of Georgia MDL 2804: Court Transfers 22 Actions to Northern District of Ohio MDL 2804: Court Vacates Order Moving Suit v. Purdue Pharma to Ohio MDL 2846: Court Transfers Luks v. Davol Suit to S. Dist. of Ohio MDL 2870: Court Denies Bid to Centralize 4 Securities Litigation MDL 2872: Court Denies Bid to Centralize 7 Products Liability Suits MDL 2872: Court Denies Bid to Centralize 7 Products Liability Suits MDL 2873: 75 of 84 Suits Transferred to South Carolina MDL 2874: 3 RAH Patent Lawsuits Transferred to N. Dist. of Calif. MEDICREDIT INC: Settlement in Raffin Suit Has Final Approval MEDTRONIC PLC: Pretrial in Sprint Fidelis-Related Suit Ongoing MEDTRONIC PLC: Settled 15,100 Pelvic Mesh-Related Claims MERCY HEALTH: Ohio Court Issues Final Judgment in ERISA Suit MERIDIAN BIOSCIENCE: Bid to Drop Forman Class Suit Still Pending MIDLAND CREDIT: Olivia Sues Over Illegal Debt Collection MISSOURI: Gasca Moves for Certification of Adult Parolees Class MOBILE DIRECT: Strange Files Tort Class Suit in Cal. Super. Ct. MONSANTO COMPANY: Perry Sues over Sale of Herbicide Roundup NATIONWIDE CREDIT: Violates FDCPA, Walston Suit Says ONE TECHNOLOGIES: 5th Cir. Flips Arbitration Ruling in Forby Suit OUTLAW LABORATORIES: Court Narrows Claims in "Rhino" Suit OXNARD SCHOOL: Certification of Students Class Sought in JR Suit PATENAUDE & FELIX: Court Dismisses Schultz FDCPA Suit PORSCHE CARS: Padilla Sues Over Defective Cooling System PORTFOLIO RECOVERY: Court Certifies Class in Bereket FDCPA Suit PORTFOLIO RECOVERY: Court Refuses to Certify Class in Gomes Suit PPDAI GROUP: Lai Hits Share Drop from Illegal Business Practices QUINCY BIOSCIENCE: Denial of Bid to Stay in Vanderwerff Suit Upheld R&L CARRIERS: Miranda Suit Moved to C.D. California RAYMOND JAMES: Bid to Drop Wistar Class Suit Pending RAYMOND JAMES: Trial in Brink Suit to Commence April 2019 SACRAMENTO COUNTY, CA: Class Certification in Mays Suit Recommended SCOTTS MIRACLE-GRO: Settlement Reached in Morning Song Bird Suit SECURIAN FINANCIAL: Harrison Suit Transferred to Minnesota SETERUS INC: Ct. Denies w/ Prejudice Class Cert. Bid in "Baxa" SHOREFRONT OPERATING: Chow Sues over Unsafe and Inadequate Care STARBUCKS CORP: Cal. App. Affirms Judgment in Carrington Labor Suit STATE COLLECTION: Class Certification Sought in Cajigas Suit SUBURBAN PROPANE: Asks Court to Reconsider Bid to Drop NY Suit SUPERIOR MALPRACTICE: Faces Retina Associates Suit Over Junk Faxes TENAGLIA & HUNT: Yungreis Files FDCPA Suit in New Jersey TEXAS: LULAC Moves to Cert. Class, Subclass of Latino ELL Students TRANS UNION: Violates Fair Credit Reporting Act, Sztillerman Says UNITED TECHNOLOGIES: Millman Class Cert. Bid Taken Under Advisement US NUTRITION: Matic Files Slack-fill Suit in Calif. USA WATER POLO: 9th Cir. Flips Dismissal of Mayall Injury Suit VIGO IMPORTING: Court Grants Bid to Dismiss Buso CLRA/CFPLA Suit VIRGIN AMERICA: Court Grants Bid for Sanctions in Bernstein Suit WAKEFIELD & ASSOCIATES: Daniels Brings FDCPA Class Suit in Alabama WALMART INC: Faces Krauss Class Action in Cal. Super. Ct. YELP INC: Court Narrows Claims in Securities Fraud Suit ********* AAC HOLDINGS: Has Settlement with Former Officer Menz ------------------------------------------------------ AAC Holdings, Inc. said in its Form 8-K filing with the U.S. Securities and Exchange Commission filed on November 28, 2018, that on November 21, 2018, the Company entered into a settlement with its former officer and director, Jerrod N. Menz ("Menz"). In exchange for Menz releasing his claim for indemnification in the Smith, et al. v. American Addiction Centers, Inc., et al., Case No. BC667311 Litigation, the Company has agreed to release Menz from his agreement to contribute 300,000 shares to the settlement of the securities class action lawsuit (Kasper v. AAC Holdings, Inc., et al., Case No. 3:15-cv-923, United States District Court for the Middle District of Tennessee) that was finally settled on June 11, 2018. 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. AAC Holdings, Inc. was founded in 2014 and is headquartered in Brentwood, Tennessee. ALDI INC: Court Denies Bid to Dismiss Dieter ADA Suit ----------------------------------------------------- In the case, RICHARD DIETER, individually and on behalf of all others similarly situated, Plaintiff, v. ALDI, INC., Defendant, Civ. Action No. 2:18-00846 (W.D. Pa.), Judge Joy Flowers Conti of the U.S. District Court for the Western District of Pennsylvania denied without prejudice Aldi's motion to dismiss and/or strike class allegations. Dieter filed an amended class action complaint, individually and on behalf of all others similarly situated, under Title III of the Americans with Disabilities Act ("ADA"), against Aldi. Aldi filed the pending motion to dismiss and/or strike class allegations with an accompanying brief in support of the motion. The Plaintiff filed a response and brief in opposition to the motion. On Nov. 2, 2018, Aldi with leave of court filed a reply in support of its motion. The Plaintiff, a resident of Pennsylvania, has a mobility disability and is dependent upon a wheelchair for mobility. Aldi is a corporation organized under Illinois law and a public accommodation pursuant to 42 U.S.C. Section 12181(7). The Plaintiff visited Aldi's Allison Park, PA, location within the last year and experienced unnecessary difficulty and risk due to excessive slopes in a purportedly accessible parking space and other ADA accessibility violations. Aldi operates over 1,600 stores in 35 states and "corporately" manages all the facilities. It uses centralized policies, practices, and procedures with respect to the design, construction, alteration, maintenance, and operation of its facilities. The Plaintiff alleges that Aldi's centralized design, construction, alteration, maintenance and operational policies and practices have systematically and routinely violated the ADA. The amended class action complaint describes the nationwide class as all persons with qualified mobility disabilities who, due to the Defendant's failure to comply with the ADA's accessible parking and path of travel requirements, have experienced or will experience slope-related injuries that occur within the parking facilities at all locations within the United States for which the Defendant owns and/or controls the parking facilities. The Plaintiff asserts class claims for a permanent injunction pursuant to Federal Rule of Civil Procedure 23(b)(2) to remove the barriers currently present at Aldi's facilities and an injunction to modify the policies and practices that have created or allowed inaccessibility to affect Aldi's network of facilities. Judge Conti concludes that the amended class action sufficiently alleges class allegations. Among other things, she finds that because the putative class in the case is limited to alleged slope-related violations in parking lots, the concern about different species of violations is not sufficiently present to strike the class allegation prior to discovery. Only discovery will uncover whether the common violation actually derives from a common policy. She also finds that with respect to the factual circumstances underpinning the Plaintiff's individual claim and those of the class, the amended class complaint shows differences among the Plaintiff's experience, the alleged findings of the investigation, and the class description. The class description captures all slope-related injuries that occur within the parking facilities, incorporating not just sloping violations with respect to parking spaces and access aisles but also the sloping of routes leading to a facility entrances and curb ramps. The Judge further finds that although it may be that putative class members have competing interests, conflicts that are "unduly speculative" do not defeat the adequacy requirement, even at the certification stage. It is impossible to glean from the amended class complaint the extent to which the Plaintiff's individual claim may or may not conflict with the other putative class members and whether that conflict will prevent the Plaintiff from adequately representing the class. For these reasons, Judge Conti denied Aldi's motion to dismiss and/or strike class allegations, without prejudice to Aldi reasserting its arguments at certification. An appropriate order will be entered. A full-text copy of the Court's Nov. 28, 2018 Memorandum Opinion is available at https://is.gd/W4sUFC from Leagle.com. RICHARD DIETER, individually and on behalf of all others similarly situated, Plaintiff, represented by Benjamin J. Sweet -- bsweet@carlsonlynch.com -- Carlson Lynch Sweet Kilpela & Carpenter, LLP, Elizabeth Pollock-Avery, Carlson Lynch Sweet Kilpela & Carpenter, LLP & Kelly K. Iverson, Carlson Lynch Sweet Kilpela & Carpenter, LLP. ALDI, INC., Defendant, represented by Brian H. Simmons -- brian.simmons@bipc.com -- Buchanan Ingersoll & Rooney PC, Christian Antkowiak -- christian.antkowiak@bipc.com -- Buchanan Ingersoll and Rooney & Ryan Wilk -- ryan.wilk@bipc.com -- Buchanan Ingersoll & Rooney PC. ALLIED EAGLE: Bermudez Wants to Send Notice to FLSA Class Members ----------------------------------------------------------------- The Plaintiff in the lawsuit styled BENJAMIN BERMUDEZ, Individually and on behalf of All Others Similarly Situated v. ALLIED EAGLE TRANSPORTS, LLC, and JOSE PENA, Case No. 7:18-cv-00158-DC-RCG (W.D. Tex.), moves for approval and distribution of notice and for disclosure of contact information. The Plaintiff brought this suit on behalf of certain former and current Delivery Driver for the Defendants to recover overtime wages and other damages pursuant to the Fair Labor Standards Act. In conjunction with his Motion for Conditional Certification, the Plaintiff seeks this Court's approval of certain procedures for providing notice to class members. The Plaintiff asks a period of 90 days to distribute Notice and file Consent forms with this Court and asks the Court to enter an Order directing the Defendants to provide the names, including any aliases they may have gone by or go by now, last known home and work addresses, and any and all cell phone numbers and e-mail addresses of potential opt-in Plaintiffs no later than one week after the date of the entry of the Order granting this Motion.[CC] The Plaintiff is represented by: Josh Sanford, Esq. SANFORD LAW FIRM, PLLC One Financial Center 650 S. Shackleford, Suite 411 Little Rock, AR 72211 Telephone: (501) 221-0088 Facsimile: (888) 787-2040 E-mail: josh@sanfordlawfirm.com The Defendants are represented by: Gerald K. Fugit, Esq. GERALD K. FUGIT P.C. 412 North Texas Avenue Odessa, TX 79761 Telephone: (432) 332-1661 E-mail: fugitassist@att.net ALPHA TECHNOLOGIES: Two Collectives Certified in Martinez FLSA Suit ------------------------------------------------------------------- The Hon. Louise W. Flanagan grants the Plaintiffs' Motion for Conditional Certification of a Collective Action in the lawsuit captioned PEDRO RODRIGUEZ MARTINEZ, MATEO HERNANDEZ LOPEZ and ELMER MENJIVAR ARGETA, on behalf of themselves and all others similarly situated v. ALPHA TECHNOLOGIES SERVICES, INC., EAST CAROLINA COMMERCIAL SERVICES, LLC, SOLAR GUYS, INC., CESAR MENDOZA, and JORGE RAMOS, Case No. 5:17-cv-00628-FL (E.D.N.C.). The Court conditionally certifies two collectives pursuant to Section 216(b) of the Fair Labor Standards Act: (a) A collective consisting of all similarly situated individuals engaged in the construction of IS46 through Defendant East Carolina Commercial Services individually or jointly with one or more of the other Defendants who were required to work in excess of forty hours per week and were not paid the appropriate overtime rate for hours worked over 40 in a workweek, and who timely file (or have already filed) a written consent to be a party to this action pursuant to 29 U.S.C. Section 216(b); and (b) A collective consisting of all similarly situated individuals engaged in the construction of IS46 through Defendant East Carolina Commercial Services individually or jointly with one or more of the other Defendants who were required to purchase and provide their own hard hats, vests, boots, safety glasses and/or gloves and were not reimbursed for those purchases or paid minimum wage for their first week of work, and who timely file (or have already filed) a written consent to be a party to this action pursuant to 29 U.S.C. Section 216(b). Judge Flanagan authorizes the Notice distribution in English and Spanish to potential opt-in Plaintiffs via United States mail, electronic mail, and/or Facebook Messenger. The Parties are directed to meet and confer after 45 days following the date of entry of this Order to attempt to agree on whether any additional means of distribution of the Notice is necessary to provide the named Plaintiffs a reasonable opportunity to apprise potential members of the conditionally certified collectives of the existence of this action and their opportunity to participate. The Parties will report back to the Court within 60 days of this Order regarding the outcome of their conferral and shall at that time inform the Court of any disputes regarding the means of distributing notice and seek a ruling from the Court. The Court further approves the Consent to Sue Form attached as Exhibit 4 to Plaintiffs' Memorandum. The Defendants shall within 14 days of the Court's Order on this Motion, provide to the Plaintiffs available information regarding the full names, date(s) of employment, job title(s), last known addresses, email addresses, telephone numbers, and dates of birth of all putative members of the collectives to assist the Plaintiffs in the distribution of the approved notice. The deadline for joinder of opt-in Plaintiffs filing Consent to Join forms to join the conditionally certified collectives shall be four months from the date of this Order. Upon timely application by the Plaintiffs and a showing that the Defendants have failed to provide personal contact information such as home addresses, telephone numbers or e-mail addresses for a significant number of the members of the proposed collectives conditionally certified, or that the information provided is no longer valid, the Court may extend the opt-in period by up to two months.[CC] ANGIE'S LIST: Strauss Has Until Dec. 18 to File Notice of Appeal ---------------------------------------------------------------- In the case, STEVE STRAUSS d/b/a CLASSIC TREE CARE, et al., Plaintiffs, v. ANGIE'S LIST, INC., Defendant, Case No. 2:17-CV-02560-HLT-TJJ (D. Kan.), Judge Holly L. Teeter of the U.S. District Court for the District of Kansas granted Strauss and David Garner a 15-day extension, up to and including Dec. 18, 2018 to file a notice of appeal of the Court's dismissal of their putative class action. The Plaintiffs seek a 30-day extension, up to and including Jan. 2, 2019, to file the notice of appeal. McDowell, Rice, Smith & Buchanan, P.C. -- attorneys for the Plaintiffs -- also seek to withdraw as the Plaintiffs' counsel. Because the counsel has complied with the requirements of the District of Kansas Local Rule 83.5.5(a)(1)-(4), Judge Teeter granted the counsel's Motion to Withdraw as Counsel for Plaintiff Steve Strauss d/b/a Classic Tree Care, and the counsel's Motion to Withdraw as Counsel for Plaintiff Steve Strauss d/b/a Classic Tree Care. She finds that in accordance with the requirements of the applicable Local Rule, because their withdrawal will leave the Plaintiffs without counsel, the counsel has: (1) notified the Court of the reasons for the withdrawal; (2) provided evidence that the Plaintiffs have been notified of their withdrawal; (3) provided the Court with the Plaintiffs' current mailing addresses and telephone numbers; (4) served the motion to withdraw on the Plaintiffs by certified mail, with return receipt requested; (5) filed an affidavit indicating that the Plaintiffs received a copy of the motion to withdraw; and (6) served the motion to withdraw on all attorneys of record. Because the Court granted the Plaintiffs' counsel leave to withdraw, she also finds good cause exists to grant an extension of time to file the notice of appeal. She concludes, however, that a 15-day extension, up to and including Dec. 18, 2018, is sufficient time to allow the Plaintiffs to prepare and file the notice of appeal. For these reasons, the Judge granted in part and denied in part the Plaintiffs' Motion for Extension of Time to File a Notice of Appeal. The Plaintiffs' notice of appeal must therefore be filed with the Clerk of Courts for the United States District Court, District of Kansas, on Dec. 18, 2018. A copy of the notice of appeal is available in PDF format on the Court's website. The Plaintiffs may file the completed notice of appeal in person (Robert J. Dole United States Courthouse, 500 State Avenue, Suite 259, Kansas City, KS 66101), via email in PDF format (ksd_clerks_kansascity@ksd.uscourts.gov), or via United States mail (Robert J. Dole United States Courthouse, Attn: Clerk's Office, 500 State Avenue, Suite 259, Kansas City, KS 66101). The Clerk of Courts will mail a copy of the Order, via certified mail, to Strauss at 18450 W. 367th Street, Paola, KS 66071 and to Garner, via certified mail, at 1507 Willowdale Drive, Bel Air, MD 21015. A full-text copy of the Court's Nov. 28, 2018 Memorandum and Order is available at https://is.gd/6zuN56 from Leagle.com. Steve Strauss, doing business as, Plaintiff, pro se. Angie's List, Inc., Defendant, represented by Franco A. Corrado -- franco.corrado@morganlewis.com -- Morgan, Lewis & Bockius, LLP, pro hac vice, J. Gordon Cooney, Jr. -- gordon.cooney@morganlewis.com -- Morgan, Lewis & Bockius, LLP, pro hac vice, J. Kevin Fee -- kevin.fee@morganlewis.com -- Morgan, Lewis & Bockius, LLP, pro hac vice, Lynn W. Hursh -- lhursh@armstrongteasdale.com -- Armstrong Teasdale LLP, Matthew R. Brunkhorst -- mbrunkhorst@armstrongteasdale.com -- Armstrong Teasdale, LLP, Natalie M. Georges -- natalie.georges@morganlewis.com -- Morgan, Lewis & Bockius, LLP, pro hac vice & Paul M. Croker -- pcroker@armstrongteasdale.com -- Armstrong Teasdale LLP. ATLANTIC CREDIT: Certification of Class Sought in Bencomo Suit -------------------------------------------------------------- Modest Luna Bencomo moves the Court to certify the class described in the complaint of the lawsuit captioned MODESTA LUNA BENCOMO, Individually and on Behalf of All Others Similarly Situated v. ATLANTIC CREDIT & FINANCE INC., Case No. 2:18-cv-01858-WED (E.D. Wisc.), and further asks that the Court both stay the motion for class certification and to grant the Plaintiff (and the Defendant) relief from the Local Rules setting automatic briefing schedules and requiring briefs and supporting material to be filed with the Motion. Dicta in the Supreme Court's decision in Campbell-Ewald Co. v. Gomez, left open the possibility that a defendant facing a class action complaint could moot a class representative's case by depositing funds equal to or in excess of the maximum value of the plaintiff's individual claim with the court and having the court enter judgment in the plaintiff's favor prior to the filing of a class certification motion, the Plaintiff asserts, citing Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016). To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion. Damasco v. Clearwire Corp., 662 F.3d 891, 896 (7th Cir. 2011), overruled on other grounds, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015) ("The pendency of that motion [for class certification] protects a putative class from attempts to buy off the named plaintiffs."). While the Seventh Circuit has held that the specific procedure described in Campbell-Ewald cannot force the individual settlement of a class representative's claims, the same decision cautions that other methods may prevent a plaintiff from representing a class, the Plaintiff tells the Court, citing Fulton Dental, LLC v. Bisco, Inc., No. 16-3574, 2017 U.S. App. LEXIS 10839 *9-10 (7th Cir. June 20, 2017). The Plaintiff asserts that one defendant has attempted a similar tactic by sending a certified check to the proposed class representative. Bonin v. CBS Radio, Inc., No. 16-cv-674-CNC (E.D. Wis.); see also Severns v. Eastern Account Systems of Connecticut, Inc., Case No. 15-cv-1168, 2016 U.S. Dist. LEXIS 23164 (E.D. Wis. Feb. 24, 2016). The Plaintiff is obligated to move for class certification to protect the interests of the putative class, the Plaintiff contends. As the Motion to certify a class is a placeholder motion as described in Damasco, the parties and the Court should not be burdened with unnecessary paperwork and the resulting expense when short motion to certify and stay should suffice until an amended motion is filed, the Plaintiff contends. The Plaintiff also asks to be appointed as class representative, and for the appointment of Ademi & O'Reilly, LLP, as class counsel.[CC] The Plaintiff is represented by: John D. Blythin, Esq. Mark A. Eldridge, Esq. Jesse Fruchter, Esq. Ben J. Slatky, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482-8000 Facsimile: (414) 482-8001 E-mail: jblythin@ademilaw.com meldridge@ademilaw.com jfruchter@ademilaw.com bslatky@ademilaw.com ATLANTIC CREDIT: Proceedings in Bencomo's Class Cert. Bid Stayed ---------------------------------------------------------------- The Hon. William E. Duffin granted the Plaintiff's motion to stay further proceedings on the motion for class certification in the lawsuit titled MODESTA LUNA BENCOMO v. ATLANTIC CREDIT & FINANCE, INC., Case No. 2:18-cv-01858-WED (E.D. Wisc.). On November 26, 2018, the Plaintiff filed a class action complaint. At the same time, the Plaintiff filed what the Court commonly refers to as a "protective" motion for class certification. In this Motion, the Plaintiff moved to certify the class described in the complaint but also moved the Court to stay further proceedings on that Motion. In Damasco v. Clearwire Corp., 662 F.3d 891, 896 (7th Cir. 2011), the court suggested that class‐action plaintiffs "move to certify the class at the same time that they file their complaint." "The pendency of that motion protects a putative class from attempts to buy off the named plaintiffs." However, Judge Duffin notes, because parties are generally unprepared to proceed with a motion for class certification at the beginning of a case, the Damasco court suggested that the parties "ask the district court to delay its ruling to provide time for additional discovery or investigation." The Plaintiff's motion to stay further proceedings on the motion for class certification is granted. The parties are relieved from the automatic briefing schedule set forth in Civil Local Rule 7(b) and (c). Moreover, Judge Duffin says, for administrative purposes, it is necessary that the Clerk terminate the Plaintiff's motion for class certification. However, this Motion will be regarded as pending to serve its protective purpose under Damasco, Judge Duffin adds.[CC] BANK OF AMERICA: Vasquez Files Suit in Cal. Super. Ct. ------------------------------------------------------ A class action lawsuit has been filed against Bank of America, et al. The case is styled as Carmen Vasquez an individual, on behalf of herself and all others similarly situated, Plaintiff v. Bank of America, National Association, a business entity, form unknown, Does 1 to 10, inclusive, Defendants, Case No. CGC18571669 (Cal. Super. Ct., San Francisco Cty., Nov. 29, 2018). The Bank of America Corporation is an American multinational investment bank and financial services company based in Charlotte, North Carolina with central hubs in New York City, London, Hong Kong, and Toronto.[BN] The Plaintiff is represented by David R. Markham, Esq. and Richard E. Quintilone, Esq. BARNES & NOBLE: Appeal in Bernardino Class Action Still Pending --------------------------------------------------------------- Barnes & Noble, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 20, 2018, for the quarterly period ended October 27, 2018, that appeal in Bernardino v. Barnes & Noble Booksellers, Inc., still pending. On June 16, 2017, a putative class action complaint was filed against Barnes & Noble Booksellers, Inc. (B&N Booksellers) in the United States District Court for the Southern District of New York, alleging violations of the federal Video Privacy Protection Act and related New York law. The plaintiff, who seeks to represent a class of subscribers of Facebook, Inc. (Facebook) who purchased DVDs or other video media from the Barnes & Noble website, seeks damages, injunctive relief and attorneys' fees, among other things, based on her allegation that B&N Booksellers supposedly knowingly disclosed her personally identifiable information to Facebook without her consent when she bought a DVD from Barnes & Noble's website. On July 10, 2017, the plaintiff moved for a preliminary injunction requiring Barnes & Noble to change the operation of its website, which motion B&N Booksellers opposed. On July 31, 2017, B&N Booksellers moved to compel the case to arbitration, consistent with the terms of use on Barnes & Noble's website. On August 28, 2017, the court denied the plaintiff's motion for a preliminary injunction. On January 31, 2018, the court granted B&N Booksellers' motion to compel arbitration, and the clerk of court closed the case on February 1, 2018. On March 2, 2018, the plaintiff filed an appeal in the United States Court of Appeals for the Second Circuit from the district court's grant of B&N Booksellers' motion to compel arbitration. No further updates were provided in the Company's SEC report. Barnes & Noble, Inc. primarily operates as a bookseller in the United States. The company operates through two segments, B&N Retail and NOOK. The company was founded in 1986 and is based in New York, New York. BARNES & NOBLE: Cafe Managers' Class Suit Ongoing ------------------------------------------------- Barnes & Noble, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 20, 2018, for the quarterly period ended October 27, 2018, that the company continues to defend a class action suit initiated by Kelly Brown involving Cafe Managers. On September 20, 2016, Kelly Brown filed a complaint against Barnes & Noble in the U.S. District Court for the Southern District of New York in which she alleges that she is entitled to unpaid compensation under the Fair Labor Standards Act (FLSA) and Illinois law. Ms. Brown seeks to represent a class of allegedly similarly situated employees who performed the same position (Cafe Manager) under the Fair Labor Standards Act (FLSA), as well as an Illinois-based class under Illinois law. On November 9, 2016, Ms. Brown filed an amended complaint to add an additional plaintiff named Tiffany Stewart, who is a former Cafe Manager who also alleges unpaid overtime compensation in violation of New York law and seeks to represent a class of similarly situated New York-based Cafe Managers under New York law. On May 2, 2017, the Court denied Plaintiffs' Motion for Conditional Certification, without prejudice. The Plaintiffs filed a renewed motion for Conditional Certification on November 17, 2017, which the Court denied on June 25, 2018. There are currently 24 former Cafe Managers who have joined the action as opt-in plaintiffs. No further updates were provided in the Company's SEC report. Barnes & Noble, Inc. primarily operates as a bookseller in the United States. The company operates through two segments, B&N Retail and NOOK. The company was founded in 1986 and is based in New York, New York. BECTON DICKINSON: Defending Against 3,154 Hernia Product Claims --------------------------------------------------------------- Becton, Dickinson and Company said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on November 21, 2018, for the fiscal year ended September 30, 2018, that as of September 30, 2018, the company is defending approximately 3,154 product liability claims involving Bard's line of hernia repair devices (collectively, the "Hernia Product Claims"). The majority of those claims are currently pending in a coordinated proceeding in Rhode Island State Court, but claims are also pending in other state and/or federal court jurisdictions. In addition, those claims include multiple putative class actions in Canada. Generally, the Hernia Product Claims seek damages for personal injury allegedly resulting from use of the products. From time to time, the Company engages in resolution discussions with plaintiffs' law firms regarding certain of the Hernia Product Claims, but the Company also intends to vigorously defend Hernia Product Claims that do not settle, including through litigation. Trials are scheduled throughout 2019 in various state and/or federal courts. The Company expects additional trials of Hernia Product Claims to take place over the next 12 months. In August 2018, a new hernia multi-district litigation ("MDL") was ordered to be established in the Southern District of Ohio. Becton, Dickinson said, "The Company cannot give any assurances that the resolution of the Hernia Product Claims that have not settled, including asserted and unasserted claims and the putative class action lawsuits, will not have a material adverse effect on the Company's business, results of operations, financial condition and/or liquidity." Becton, Dickinson and Company develops, manufactures, and sells medical supplies, devices, laboratory equipment, and diagnostic products worldwide. Becton, Dickinson and Company was founded in 1897 and is based in Franklin Lakes, New Jersey. BIG MIKE'S: Magistrate Recommends Conditional FLSA Certification ---------------------------------------------------------------- In the case, WENDY FITZWATER Plaintiff, v. MIKE COLE, SR, et al., Defendants, Civil Action No. 18-00137-N (S.D. Ala.), Magistrate Judge Katherine P. Nelson of the U.S. District Court for the Southern District of Alabama, Southern Division, has issued a memorandum opinion regarding the Plaintiff's Motion for Expedited Court-Supervised Notice to the Putative Class and for Conditional Certification. Fitzwater's complaint alleges violations of, and proposes to bring a collective action under, the Fair Labor Standards Act ("FLSA"). The action is before the Court on her Motion for Expedited Court-Supervised Notice to the Putative Class and for Conditional Certification, and separate supporting memorandum brief. The Defendants have timely filed a response in opposition to the motion, and Fitzwater has timely filed a reply to the response. Fitzwater's present motion invokes the two-stage procedure described above and moves for stage-one conditional certification of the putative class of all current and former employees of Big Mike's Steakhouse for whom the Defendants claimed a 'tip credit' by paying them a direct hourly wage of less than $7.25 per hour for any work week since Sept. 10, 2015. In response, the Defendants point out that in April 2018, after Fitzwater filed the action on March 21, 2018, but before the Defendants were served with the complaint in late May and early June, the Wage and Hour Division of the U.S. Department of Labor ("DOL") initiated an audit of the Defendants' payroll practices. The DOL issued its determinations to the Defendants on Aug. 22, 2018, including a settlement demand requiring payment of back wages and other elements of compensation, including properly calculated overtime and other elements of compensation, to all current and former employees, with the sole exception of Plaintiff Fitzwater. The Agency's determination and settlement demand included loss of the Defendants' 'tip credit' due to a tip pooling arrangement that was deemed not compliant with the FSLA. The DOL did not assess liquidated damages after determining no willful conduct on the part of the Defendants. Fitzwater was excluded from the DOL's payment compensation roster due to the DOL's policy of not representing employees who are represented by counsel and have claims pending in court. The roster did include former employee Carlissa Phillips, to date the only opt-in Plaintiff. The Defendants assert that they have agreed to pay the DOL's settlement demand for all current and former employees on the compensation roster and have transmitted settlement payments to all current and former employees with the exception of Plaintiff Fitzwater and Ms. Phillips. They request that the Court exercises its inherent power to control its docket by staying the case to allow for the DOL settlement process to conclude. In reply, Fitzwater opposes the request for a stay. Briefing on the present motion closed after Oct. 4, 2018. Magistrate Judge Nelson heard oral argument regarding the motion at a telephonic scheduling conference with the counsel for the parties held Nov. 16, 2018. She opined that indeed, by arguing for allowing the DOL settlement proceedings, involving dozens of the Defendants' employees, to continue so as to resolve the claims at issue in the action, the Defendants tacitly concede that a putative class exists. Upon consideration, she finds it appropriate to conditionally certify a collective action with a putative class of all current and former employees of Big Mike's Steakhouse for whom the Defendants claimed a 'tip credit' by paying them a direct hourly wage of less than $7.25 per hour for any work week since Sept. 10, 2015. Moreover, the Magistrate Judge finds that the pendency of the DOL's parallel settlement proceedings does not warrant a stay or denial of conditional certification. Nothing in the plain text of the FLSA suggests that a DOL-supervised settlement proceeding and a district court collective action cannot proceed at the same time, and given that the broad remedial goal of the collective action statute should be enforced to the full extent of its terms, the Magistrate Judge finds that the rights of the putative class will be best protected by allowing notice of the action to issue. In accordance with this, Magistrate Judge Nelson will, in due course after hearing from the parties at the telephonic follow-up scheduling conference enter a separate order denying the Defendants' motion to stay, granting Fitzwater's motion for conditional certification, and setting forth additional appropriate provisions and instructions to effectuate notice. A full-text copy of the Court's Nov. 28, 2018 Memorandum Opinion is available at https://is.gd/FHXV8J from Leagle.com. Wendy Fitzwater, Plaintiff, represented by Charles Peter Yezbak, III -- yezbak@yezbaklaw.com -- Yezbak Law Offices, pro hac vice & Daniel Eduardo Arciniegas, Arciniegas Law PLLC. Mike Cole, Sr., Scott Powell, Caine Conway, Casey Taylor, Big Mike's Restaurant LLC, Big Mike's Steakhouse OB, LLC, Big Mike's Restaurant II, LLC & Big Mike's Restaurant Andalusia, LLC, Defendants, represented by Emily C. Killion -- ekillion@burr.com -- BURR & FORMAN LLP & H. William Wasden -- bwasden@burr.com -- Burr Forman. BLACKBOARD INC: McMechen Suit Alleges Equal Pay Act Violation ------------------------------------------------------------- Tina McMechen and Madeleine Watson, individually and on behalf of all similarly situated employees v. Blackboard Inc., Case No. 3:18-cv-00218 (E.D. Ark., November 14, 2018), seeks to recover the equal pay owed to them under the Fair Labor Standards Act and the Equal Pay Act. The Plaintiffs alleges that the Defendant's Female Salespeople and the Members of the Class were paid less for equal work than men. There has been a stark disparity in pay between Blackboard's male and female salespeople despite performing virtually identical jobs. The Plaintiff Tina McMechen worked for Blackboard as a salesperson in its K-12 division based out of her residence in Craighead County, Arkansas, from January 11, 2016, until July 20, 2018. The Plaintiff Madeleine Watson worked for Blackboard as a salesperson in its K-12 division based out of her residence in Cook County, Illinois, from March 2015 until June 29, 2018. The Defendant Blackboard, which bills itself as the "#1 Global Education Software Provider," provides educational software solutions to educators, schools, and school districts throughout the United States and worldwide. [BN] The Plaintiffs are represented by: Jennifer J. Spencer, Esq. Mary L. Scott, Esq. James E. Hunnicutt, Esq. SPENCER SCOTT PLLC Three Forest Plaza 12221 Merit Drive, Suite 160 Dallas, TX 75225 Tel: (972) 458-5301 Fax: (972) 770-2156 E-mail: jspencer@spencerscottlaw.com mscott@spencerscottlaw.com jhunnicutt@spencerscottlaw.com BONNIER CORP: Friske Seeks to Certify Class of Mich. Subscribers ---------------------------------------------------------------- The Plaintiff in the lawsuit captioned REBECCA FRISKE, individually and on behalf of all others similarly situated v. BONNIER CORPORATION, a Delaware corporation, Case No. 2:16-cv-12799-DML-EAS (E.D. Mich.), seeks certification of this class: All Michigan residents who received one or more subscriptions to a magazine published by Bonnier between July 28, 2010 and the present, and who did not purchase such subscriptions through a Third-Party Subscription Agent. Ms. Friske alleges that Bonnier violated the Michigan Video Rental Privacy Act by disclosing her and other similarly situated Michigan customers' personal magazine subscriber information to third parties without notice or consent. Ms. Friske also asks the Court to appoint her as Class Representative, and to appoint her counsel as Class Counsel.[CC] The Plaintiff is represented by: Gary F. Lynch, Esq. Jamisen A. Etzel, Esq. CARLSON LYNCH SWEET KILPELA & CARPENTER, LLP 1133 Penn Avenue, 5th Floor Pittsburgh, PA 15232 Telephone: (412) 322-9243 E-mail: glynch@carlsonlynch.com jetzel@carlsonlynch.com - and - Daniel Myers, Esq. THE LAW OFFICES OF DANIEL O. MYERS 818 Red Drive, Suite 210 Traverse City, MI 49684 Telephone: (231) 943-1135 E-mail: dmyers@domlawoffice.com The Defendant is represented by: Francis A. Zacherl, Esq. Daniel T. Stabile, Esq. SHUTTS & BOWEN LLP 200 South Biscayne Blvd., Suite 4100 Miami, FL 33131 Telephone: (305) 415-9063 Facsimile: (305) 347-7714 E-mail: fzacherl@shutts.com dstabile@shutts.com - and - John J. Gillooly, Esq. GARAN LUCOW MILLER P.C. 1155 Brewery Park Blvd., Suite 200 Detroit, MI 48207 Telephone: (313) 446-5501 E-mail: jgillooly@garanlucow.com BOYSEN USA: Auto Shops Hit Overpriced Automotive Exhaust Systems ---------------------------------------------------------------- Manny's Auto Supply, Inc. and Irving Levine Automotive Distributors, Inc., on behalf of themselves and all others similarly situated, Plaintiffs, v. Boysen USA, LLC, Defendant, Case No. 18-cv-13688 (E.D. Mich., November 26, 2018), seeks treble damages under Section 1 of the Sherman Act and Section 4 of the Clayton Act. Defendant is a manufacturer and supplier of automotive exhaust systems. Boysen USA is owned by Friedrich Boysen GmbH & Co. KG of Germany. Boysen is accused of conspiring to rig bids and fix, raise, maintain, or stabilize prices of automotive exhaust systems sold in the United States at supra-competitive levels. Plaintiffs are automotive parts dealers who purchased these exhaust systems. [BN] Plaintiff is represented by: David H. Fink, Esq. Darryl Bressack, Esq. Nathan J. Fink, Esq. FINK ASSOCIATES LAW 38500 Woodward Avenue, Ste. 350 Bloomfield Hills, MI 48304 Tel: (248) 971-2500 Email: dfink@finkandassociateslaw.com dbressack@finkandassociateslaw.com nfink@finkandassociateslaw.com - and - Eugene A. Spector, Esq. William G. Caldes, Esq. Jonathan M. Jagher, Esq. Jeffrey L. Spector, Esq. SPECTOR ROSEMAN & KODROFF, P.C. 1818 Market Street, Suite 2500 Philadelphia, PA 19103 Telephone: (215) 496-0300 Email: espector@srkattorneys.com bcaldes@srkattorneys.com jjagher@srkattorneys.com jspector@srkattorneys.com - and - Steven A. Kanner, Esq. William H. London, Esq. Michael E. Moskovitz, Esq. FREED KANNER LONDON & MILLEN LLC 2201 Waukegan Road, Suite 130 Bannockburn, IL 60015 Telephone: (224) 632-4500 Email: skanner@fklmlaw.com wlondon@fklmlaw.com mmoskovitz@fklmlaw.com - and - Joseph C. Kohn, Esq. William E. Hoese, Esq. Douglas A. Abrahams, Esq. Craig W. Hillwig, Esq. KOHN, SWIFT & GRAF, P.C. One South Broad Street, Suite 2100 Philadelphia, PA 19107 Telephone: (215) 238-1700 Email: jkohn@kohnswift.com whose@kohnswift.com dabrahams@kohnswift.com - and - Gregory P. Hansel, Esq. Randall B. Weill, Esq. Michael S. Smith, Esq. PRETI, FLAHERTY, BELIVEAU & PACHIOS LLP One City Center, P.O. Box 9546 Portland, ME 04112-9546 Telephone: (207) 791-3000 Email: ghansel@preti.com rweill@preti.com - and - Carl E. Person, Esq. 225 E. 36th Street, Suite 3A New York, NY 10016-3664 Telephone: (212) 307- 4444 Email: carlpers2@gmail.com - and - Scott D. Gilchrist, Esq. Richard E. Shevitz, Esq. COHEN & MALAD, LLP One Indiana Square, Suite 1400 Indianapolis, IN 46204 Telephone: (317) 636-6481 Fax: (317) 636-2593 Email: rshevitz@cohenandmalad.com sgilchrist@cohenandmalad.com BROOKS BROTHERS: Phipps Discrimination Suit Removed to C.D. Calif. ------------------------------------------------------------------ The class action styled as Delina Phipps an individual, and on behalf of others similarly situated, Plaintiff v. Brooks Brothers Group, Inc. a Delaware limited liability company, Does 1 through 50, inclusive, Defendants, Case No. BC719429 was removed from Los Angeles County Superior Court to the U.S. District Court for the Central District of California on November 29, 2018, and assigned Case No. 2:18-cv-10010-SJO-RAO. The nature of suit is stated as Jobs Civil Rights and was asserts Employment Discrimination. Brooks Brothers Group, Inc. retails apparel and accessories for women, men, and kids. The company offers dress shirts, sport shirts, ties, blazers, suits, outerwear, sport coats and vests, sweaters, formalwear, dress trousers, casual pants, polos, rugby shirts and tees, shorts, underwear and socks, sleepwear, and swimwear; and non-iron dress shirts, dresses, blouses, knits, jackets, pants, skirts, and petites.[BN] The Plaintiff is represented by: Matthew John Matern, Esq. Matern Law Group PC 1230 Rosecrans Avenue Suite 200 Manhattan Beach, CA 90266 Phone: (310) 531-1900 Fax: (310) 531-1901 Email: mmatern@maternlawgroup.com - and - Scott Ashford Brooks, Esq. Matern Law Group PC 1230 Rosecrans Avenue Suite 200 Manhattan Beach, CA 90266 Phone: (310) 531-1900 Fax: (310) 531-1901 Email: sbrooks@maternlawgroup.com The Defendants are represented by: Amy Schaefer Ramsey, Esq. Littler Mendelson PC 633 West Fifth Street 63rd Floor Los Angeles, CA 90071 Phone: (213) 443-4300 Fax: (213) 443-4299 Email: aramsey@littler.com - and - Bennett Kaspar, Esq. Littler Mendelson PC 633 West Fifth Street 63rd Floor Los Angeles, CA 90071 Phone: (213) 443-4300 Fax: (213) 443-4299 Email: bkaspar@littler.com CAESARS ENTERTAINMENT: Castillo TCPA Suit Moved to N.D. Nevada -------------------------------------------------------------- Judge Edward M. Chen of the U.S. District Court for the Northern District of California transferred the case, JUSTIN CASTILLO, Plaintiff, v. CAESARS ENTERTAINMENT CORPORATION, et al., Defendants, Case No. 18-cv-05781-EMC (N.D. Cal.), to the District of Nevada. Castillo has filed a class action against Defendants Caesars and Desert Palace, LLC, asserting a violation of the Telephone Consumer Protection Act. According to Mr. Castillo, Caesars violated the statute because it sent unsolicited marketing and advertising text messages to its hotel guests. In his complaint, Mr. Castillo alleges that he resides in Los Angeles, California. In April 2018, he checked into the Caesars Palace hotel, which is located in Las Vegas, Nevada. Approximately half an hour later, he received a text message. At the time he received the text message, Mr. Castillo had not authorized Caesars to send him marketing-related text messages. He does not allege that he received any more messages from Caesars. According to Mr. Castillo, Caesars worked with GoMoment, a California-based company, to roll out the guest-engagement platform known as Ivy. As alleged in the complaint, GoMoment was responsible for developing and maintaining the Ivy platform, but Caesars was responsible for implementing the platform for its hotel. Currently pending before the Court is Caesars's motion to dismiss for lack of personal jurisdiction, or, in the alternative, to transfer venue pursuant to 28 U.S.C. Section 1404. Judge Chen agrees with Caesars that personal jurisdiction is lacking. He holds that Mr. Castillo has failed to make a prima facie showing of personal jurisdiction. The Judge, however, does not dismiss the action based on the lack of personal jurisdiction because personal jurisdiction is a defect capable of being cured, and because 28 U.S.C. C. Section 1631 allows the Court to transfer as an alternative to dismissal. In the instant case, there is no dispute that the District of Nevada has personal jurisdiction over Caesars. Moreover, there is no real dispute that a significant part of the events took place in Nevada, including but not limited to Caesars's decision to send the text messages and the receipt of those text messages by guests after checking into the Caesars hotel. Finally, there is no apparent frivolousness or bad faith with respect to Mr. Castillo's claims. A transfer to the District of Nevada is therefore appropriate. Finally, the Judge notes that, even if it did have personal jurisdiction over Caesars with respect to the instant case, it would still find a transfer to the District of Nevada proper pursuant to 28 U.S.C. Section 1404(a). For the foregoing reasons, Judge Chen denied the Defendants' motion to dismiss, and transferred the instant case to the District of Nevada. The Clerk of the Court is ordered to immediately effectuate the transfer of the case. The Order disposes of Docket No. 20. A full-text copy of the Court's Nov. 28, 2018 Order is available at https://is.gd/FSq57j from Leagle.com. Justin Castillo, as an individual and on behalf of all others similarly situated, Plaintiff, represented by Lionel Z. Glancy -- info@glancylaw.com -- Glancy Prongay & Murray LLP, Danielle Leigh Manning -- dmanning@glancylaw.com -- Glancy Prongay & Murray LLP, Marc Lawrence Godino -- mgodino@glancylaw.com -- Glancy Prongay & Murray LLP, Mark Samuel Greenstone -- mgreenstone@greenstonelaw.com -- Greenstone Law APC & Michael Joe Jaurigue -- michael@jlglawyers.com -- Jaurigue Law Group. Caesars Entertainment Corporation & Desert Palace, LLC, doing business as Caesars Palace Hotel & Casino, Defendants, represented by Matthew T. Murchison -- matthew.murchison@lw.com -- Latham & Watkins LLP, pro hac vice, Melanie Marilyn Blunschi -- melanie.blunschi@lw.com -- Latham & Watkins LLP, Adam J. Tuetken -- adam.tuetken@lw.com -- Latham & Watkins LLP, pro hac vice & Natalie Hardwick Rao -- natalie.rao@lw.com -- Latham & Watkins LLP, pro hac vice. CAMBIUM LEARNING: Strahan Balks at Merger Deal with Veritas ----------------------------------------------------------- ERIC STRAHAN, Individually and on Behalf of All Others Similarly Situated, the Plaintiff, vs. CAMBIUM LEARNING GROUP, INC., JOHN CAMPBELL, DAVID F. BAINBRIDGE, WALTER G. BUMPHUS, CLIFFORD K. CHIU, CAROLYN GETRIDGE, THOMAS KALINSKE, JEFFREY T. STEVENSON, JOE WALSH, CAMPUS HOLDING CORP., CAMPUS MERGER SUB INC., and VERITAS CAPITAL FUND MANAGEMENT, L.L.C., the Defendants, Case 3:18-cv-03123-K (N.D. Tex., Nov. 27, 2018), seeks to enjoin Defendants from taking any steps to consummate a proposed transaction unless and until material information discussed below is disseminated to Cambium's shareholders, and in the event the proposed transaction is consummated without the material omissions referenced below being remedied, Plaintiff seeks to recover damages resulting from the Defendants' violations. According to the complaint, the Plaintiff brings this class action on behalf of the public shareholders of Cambium Learning Group against Cambium's Board of Directors for their violations of 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 the Board's attempt to sell the Company to Veritas Capital Fund Management, L.L.C. through its affiliate Campus Holding Corp. and its wholly-owned subsidiary Campus Merger Sub Inc. The Defendants have violated the Exchange Act by causing a materially incomplete and misleading information statement to be filed with the Securities and Exchange Commission on November 19, 2018. The Proposed Transaction was first disclosed on October 15, 2018, when Cambium and Veritas Capital announced that they had entered into a definitive merger agreement pursuant to which Veritas Capital will acquire all of the outstanding shares of common stock of Cambium for $14.50 per share. The deal is expected to close in the fourth quarter of 2018 or the first quarter of 2019. Cambium is controlled by Veronis Suhler Stevenson, which holds a majority of the outstanding shares of Cambium through an affiliated entity. VSS is a private equity firm that invests in healthcare, education and business services companies. VSS decided to liquidate its holdings in Cambium, around the same time that VSS sought to liquidate its ownership of VKidz, a private company. After securing a financial advisor and beginning a process to sell the Company, VSS presented the Board with an opportunity to purchase VKidz. By selling Vkidz to Cambium and then selling Cambium, VSS was able to liquidate its holdings in both with just one transaction. Despite the benefits to VSS, the Proposed Transaction is not in the best interests of the minority shareholders. The process by which the Board entered into the Merger Agreement was unfair, as is the Merger Consideration. Yet the minority shareholders were not even considered throughout the sales process. There was no special committee with the authority to hire its own advisors and consider the Proposed Transaction. There is no majority-of-the-minority vote. And the Proposed Transaction is a foregone conclusion, given that VSS has provided written consent and abrogated the need for a shareholder vote. Furthermore, the Information Statement is materially incomplete and contains misleading representations and information in violation of Sections 14(a) and 20(a) of the Exchange Act. Specifically, the Information Statement contains materially incomplete and misleading information concerning the sales process, financial projections prepared by Cambium management, as well as the financial analyses conducted by Macquarie Capital (USA) Inc., Cambium's financial advisor. In the absence of this material information the minority shareholders cannot make an informed decision concerning whether or not to exercise their appraisal rights, the lawsuit says. Cambium Learning Group is an American company which creates computer software and hardware products serving students ranging from pre-kindergarten to adult; and enabling educators who help them learn. In December 2009, Cambium acquired Voyager Learning Company.[BN] Attorneys for Plaintiff: Joe Kendall, Esq. Jamie J. McKey, Esq. KENDALL LAW GROUP, PLLC 3811 Turtle Creek Blvd., Suite 1450 Dallas, TX 75219 Telephone: 214 744-3000 Facsimile: 214 744-3015 E-mail: jkendall@kendalllawgroup.com jmckey@kendalllawgroup.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) 301-3514 CAVALRY PORTFOLIO: Class Certification Sought in Montoya Suit ------------------------------------------------------------- The Plaintiff in the lawsuit entitled Martha E. Montoya, individually and on behalf of all others similarly situated v. Cavalry Portfolio Services, LLC, Case No. 2:18-cv-2433(ADS)(GRB) (E.D.N.Y.), asks the Court to certify the matter as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure. Ms. Montoya also asks the Court to appoint her as Class Representative, and to appoint Barshay Sanders, PLLC, as class counsel.[CC] The Plaintiff is represented by: David M. Barshay, Esq. SANDERS BARSHAY GROSSMAN, LLC 100 Garden City Plaza, Suite 500 Garden City, NY 11530 Telephone: (516) 203-7600 Facsimile: (516) 706-5055 E-mail: dbarshay@sbglawny.com COHEN & SLAMOWITZ: Hallmark FDCA Suit Settlement Has Final Approval ------------------------------------------------------------------- In the case, MICHAEL HALLMARK, on behalf of himself and others similarly situated, Plaintiff, V. COHEN & SLAMOWITZ, LLP and MIDLAND FUNDING EEC d/b/a MIDLAND FUNDING OF DELAWARE, LLC, Defendants, Case No. 1:11-CV-0842 EAW (W.D. N.Y.), Judge Elizabeth A. Wolford of the U.S. District Court for the Western District of New York granted the Plaintiff's Motion for Final Approval of Class Action Settlement. On Sept. 16, 2013, pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure, the Court certified the class, with respect to the claims asserted in the Action, of all consumers with New York addresses, who:(a) within one year before March 9, 2012, the date of filing of the Plaintiffs Motion to Amend in this action; (b) were sent a debt collection letter by Cohen & Slamowitz, LLP, in a form materially identical or substantially similar to the letter attached to the Amended Complaint as Exhibit B sent to the Plaintiff; or(c) were sent a debt collection letter demanding City Court filing fees that had not yet been paid, incurred, or reduced to judgment; or (d) were sent a debt collection letter that failed to disclose that the balance demanded included filing fees that had not yet been paid, incurred, or reduced to judgment; and (e)the letter was not returned by the postal service as undelivered. The parties to the action have agreed, subject to Court approval following notice to the settlement class members and a final approval hearing, to settle the Action upon the terms and conditions set forth in the Settlement Agreement and Release, which has been filed with the Court. On March 6, 2018, the Plaintiff filed the Settlement Agreement, along with a Motion for Preliminary Approval of Class Action Settlement. On June 8, 2018, upon consideration of the Settlement Agreement and the Preliminary Approval Motion, the Court entered an Order of Preliminary Approval of Class Action Settlement, under which, the Court, among other things, (i) preliminarily approved the proposed Settlement Agreement; (ii) approved the form and content of the Class Notice; and (v) set the date and time of the Final Fairness Hearing. On Nov. 21, 2018, the Plaintiff filed the Final Approval Motion, requesting final certification of the settlement class under Rule 23(b)(3) and final approval of the class action settlement. On Nov. 27, 2018, a final fairness hearing was held. Judge Wolford reaffirmed the findings set forth in its Sept. 16, 2013 Order with respect to the appropriateness of maintaining the matter as a class action. The proposed settlement and Settlement Agreement are finally approved, and will be consummated in accordance with the terms and provisions thereof, except as amended by any order issued by the Court. The parties are directed to perform the terms of the Settlement Agreement. The Plaintiff has submitted, in connection with the Final Approval Motion, a request for $400,000 in attorneys' fees. For the reasons stated on the record at the final fairness hearing, the Judge deems the request a separate motion for attorneys' fees and costs pursuant to Fed. R. Civ. P. 54(d) and reserves decision on the motion pending additional briefing. In particular, she gave the Defendants until Jan. 14, 2019, to file any opposition papers to the request for attorneys' fees and costs. The Plaintiff may file any reply by no later than Feb. 15, 2019. Her reservation on the issue of attorneys' fees will not delay the entry of judgment in the matter, nor will any amendment of the judgment be required upon the Court's resolution of the issue. The Settlement Administrator is ordered to distribute checks to all the class members who have timely returned a claim form by Dec. 31, 2018. Within 120 days of the date of the Final Order and Judgment, the Settlement Administrator is directed to file a notice apprising the Court that the terms of the Agreement have been complied with and providing the Court with an accounting of how all settlement moneys were distributed. Pursuant to the terms of the Settlement Agreement, any portion of the Settlement Fund that remains after the void date on the Class Members' checks will be donated to the Western New York Law Center. Judge Wolford approved the payment of an incentive award of $25,000 to the Plaintiff for his services as the Class Representative, consistent with the terms of the Settlement Agreement. The Judge's Final Order and Judgment dismissed the Action in its entirety. Ten days after the filing of the notice and accounting contemplated of the Final Order and Judgment, the dismissal will become with prejudice and without costs, absent a timely motion by any party. A full-text copy of the Court's Nov. 30, 2018 Decision and Order is available at https://bit.ly/2EcJ4C4 from Leagle.com. Michael Hallmark, on behalf of himself and all others similarly situated, Plaintiff, represented by Brian L. Bromberg, Bromberg Law Office, P.C., Kenneth R. Hiller, Law Offices of Kenneth Hiller, Seth Andrews, Law Offices of Kenneth Hiller, PPLC & Jonathan R. Miller, Salem Community Law Office. Cohen & Slamowitz, LLP, Defendant, represented by Andrew Christopher Sayles, Esq. -- asayles@connellfoley.com -- Joseph L. Linares, Esq. -- jlinares@connellfoley.com -- and Steven A. Kroll, Esq. -- skroll@connellfoley.com -- CONNELL FOLEY LLP Midland Funding LLC, doing business as Midland Funding of Delaware LLC, Defendant, represented by Han Sheng Beh, Hinshaw & Culbertson LLP & Ellen Beth Silverman -- esilverman@hinshawlaw.com -- Hinshaw & Culbertson LLP. CORAL CAST: Niebles Sues Over Unpaid Overtime Wages --------------------------------------------------- Wayner Niebles and Jose Batista, on behalf of themselves, FLSA Collective Plaintiffs and the Class, Plaintiffs, v. Coral Cast, LLC and Joseph Marden, Defendants Case No. 2:18-cv-06803 (E.D. N.Y., November 29, 2018) bringd claims for relief as a collective action pursuant to the Fair Labor Standards Act and the New York Labor Law that they and others similarly situated are entitled to recover from Defendants, unpaid overtime compensation, liquidated damages and attorneys' fees and costs. According to the complaint, Plaintiffs and FLSA Collective Plaintiffs are and have been similarly situated, have had substantially similar job requirements and pay provisions, and are and have been subjected to Defendants' decisions, policies, plans, programs, practices, procedures, protocols, routines, and rules, all culminating in a willful failure and refusal to pay them proper overtime wages at the rate of one-and-one-half times the regular rate of pay. The claims of Plaintiffs stated herein are essentially the same as those of FLSA Collective Plaintiffs. The Defendants knowingly and willfully violated Plaintiffs' and Class Members' rights by failing to pay overtime wages for hours worked in excess of 40 per workweek at the proper overtime rate that is at least one-and-one-half times the regular rate of pay, in violation of the New York Labor Law, says the complaint. The Defendants also failed to provide proper wage statements and hour notices to Plaintiffs and Class Members as required under the New York Labor Law. Due to the Defendants' New York Labor Law violations, Plaintiffs and Class Members are entitled to recover from Defendants unpaid overtime wages, damages for unreasonably delayed payments, reasonable attorneys' fees, liquidated damages, statutory penalties and costs and disbursements of the action, pursuant to New York Labor Law, adds the comaplaint. Plaintiffs Wayner Niebles and Jose Batista are residents of Queens County, New York. At all relevant times, the work performed by Plaintiffs, FLSA Collective Plaintiffs and Class Members was directly essential to the business operated by Defendants. Coral Cast, LLC is a domestic limited liability company organized under the laws of the State of New York, with a principal place of business and an address for service of process located at 31 Commercial Court, Plainview, NY 11803. Defendants operate Coral Cast through Coral Cast, LLC. Joseph Marden is a principal and president of Corporate Defendant and has operational control of Coral Cast. He additionally exercises the authority to fire and hire, supervise and control work schedules, determine rate and method of pay, maintain employment records, and otherwise affect the terms and conditions of employment for managerial employees who directly supervise Plaintiffs, FLSA Collective Plaintiffs and Class Members at Coral Cast.[BN] The Plaintiffs are represented by: C.K. Lee, Esq. Anne Seelig, Esq. LEE LITIGATION GROUP, PLLC 30 East 39th Street, Second Floor New York, NY 10016 Phone: (212) 465-1188 Fax: (212) 465-1181 COVENTRY HEALTH: Arbitration Denial in 206 Golden Suit Affirmed --------------------------------------------------------------- In the case, Coventry Health Care of Florida, Inc., Appellant, v. Crosswinds Rehab, Inc., LLC, etc., et al., Appellees, Case No. 3D18-1342 (Fla. App.), Judge Vance E. Salter of the District Court of Appeal of Florida for the Third District affirmed the trial court's order denying Coventry's motion to compel arbitration. Coventry sought arbitration of putative class action claims brought against it by the Appellee, 206 Golden, LLC. It is undisputed that 206 Golden is not the same entity that entered into a participating provider agreement with Coventry in 2012. Rather, the agreement was signed by a prior provider operating the skilled nursing facility now operated by 206 Golden but still known as "The Crossroads." It is also undisputed that the Agreement contains a binding arbitration provision between Coventry and the entity which signed the Agreement, and that the Agreement excluded long-term care services. Coventry argues that, since at least 2014, 206 Golden's submission of claims to, and receipt of payments from, Coventry, establishes that the Agreement is still operative and binds 206 Golden. It further argues that the arbitrator, not the trial court, should determine the enforceability and scope of the Agreement. 206 Golden responds that: (1) it never signed and never agreed to the terms in Coventry's Agreement with the prior entity; and (2) it has submitted the claims in controversy and has been paid by Coventry (a) exclusively for long-term care services, which are excluded under the express terms of the Agreement,1 and (b) only because 206 Golden "must" submit such claims to Coventry under section 409.982(2), Florida Statutes (2018), irrespective of any agreement or contract. The first issue is dispositive and eliminates our need to address the long-term care exclusion in the Agreement. In Careplus Health Plans, Inc. v. Interamerican Medical Center Group, LLC, 124 So.3d 968 (Fla. 3d DCA 2013), as here, the agreement containing the mandatory arbitration provision was not signed by the entity against which the provision was sought to be enforced; this Court held that the trial court, not an arbitrator, was to determine the applicability of the arbitration provision based on the relationship of the parties. Although the Agreement in the present case included a broad "successors and assigns" provision applicable to Coventry, Judge Salter finds no such provision applied to a successor owner or operator of the Crossroads facility. The first element to be considered under the controlling case of Seifert v. U.S. Home Corp., is whether a valid arbitration agreement exists. In the case, it does not, as between these parties. The record before the Court lacks competent substantial evidence supporting Coventry's contentions regarding (a) an implied assumption of such a provision by 206 Golden, or (b) estoppel as against 206 Golden. Therefore the Judge affirmed the order denying Coventry's motion to compel arbitration is affirmed. Not final until disposition of timely filed motion for rehearing. A full-text copy of the Court's Nov. 28, Order is available at https://is.gd/4OH7hZ from Leagle.com. Shook Hardy & Bacon and Daniel B. Rogers -- drogers@shb.com; Morgan, Lewis & Bockius and Matthew Papkin, Melissa M. Coates -- melissa.coates@morganlewis.com -- and Brian M. Ercole -- brian.ercole@morganlewis.com; Shapiro, Blasi, Wasserman & Hermann and Richard P. Hermann, II and David J. DePiano (Boca Raton), for appellant. The Moskowitz Law Firm and Adam Moskowitz -- adam@moskowitz-law.com -- and Howard M. Bushman -- howard@moskowitz-law.com -- and Adam A. Schwartzbaum -- adams@moskowitz-law.com -- and Joseph M. Kaye; Fuerst Ittleman David & Joseph and Allan A. Joseph -- joseph@moskowitz-law.com -- Christopher M. David -- cdavid@fidj.com -- and Michael B. Kornhauser -- mkornhauser@fidjlaw.com -- for appellee 206 Golden LLC d/b/a Crossroads. CV SCIENCES: Time to Reply to Consolidated Securities Suit Extended ------------------------------------------------------------------- In the case, In re: CV SCIENCES, INC. SECURITIES LITIGATION. This Document Relates To: ALL ACTIONS, C.A. No. 2:18-cv-01602-JAD-PAL (D. Nev.), Magistrate Judge Peggy A. Leen of the U.S. District Court for the District of Nevada has issued an order extending the time to respond to the complaint. On Aug. 24, 2018, David Smith, individually and on behalf of all others similarly situated, filed a class action complaint captioned Smith v. CV Sciences, Inc., et al., No. 2:18-cv-01602-JAD-PAL, against the Defendants alleging violations of violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, and Securities and Exchange Commission Rule 10b-5 promulgated thereunder, 17 C.F.R. Section 240.10b-5. On Sept. 6, 2018, Lenny Alvarado, individually and on behalf of all others similarly situated, filed a related class action complaint captioned Alvarado v. CV Sciences, Inc., et al., No. 2:18-cv-01709-JAD-GWFm against the Defendants alleging violations of Sections 10(b) and 20(a) of the Exchange Act, and Securities and Exchange Commission Rule 10b-5 promulgated thereunder, 17 C.F.R. Section 240.10b-5. The CV Sciences Actions are subject to the procedural requirements of the Private Securities Litigation Reform Act of 1995 ("PSLRA"), which contemplates: (i) the consolidation of similar actions; and then (ii) the appointment of a Lead Plaintiff and a Lead Counsel. On Oct. 23, 2018, several movants, including Ina, filed motions for consolidation of the CV Sciences Actions, appointment as the Lead Plaintiff, and approval of their respective Lead Counsel selections in the CV Sciences Actions. By Nov. 5, 2018, all of the parties who filed such motions, except Ina, withdrew their motions or filed notices of non-opposition to Ina's Motion. On Nov. 15, 2018, the Court consolidated the CV Sciences Actions, appointed Ina as the Lead Plaintiff for the consolidated CV Sciences Actions, and approved his selection of the Lead Counsel. The Defendants do not contest service under Fed. R. Civ. P. 4. Ina intends to file a consolidated amended complaint. The parties agree that tge Defendants' deadline to respond to the CV Sciences Actions should be extended until 60 days after a consolidated amended complaint is filed, as set forth in the proposed schedule. Ina's consolidated amended complaint will be subject to the heightened pleading standards imposed by the PSLRA and Fed. R. Civ. P. 9(b), and therefore requires more detailed allegations and more detailed arguments if the Defendants move to dismiss the Lead Plaintiff's consolidated amended complaint. It is the first stipulation for extension of time to respond to the complaint. Therefore, the parties stipulated and agreed, and Magistrate Judge Leen granted that the Parties will proceed according to the schedule below: a. Lead Plaintiff to file a consolidated amended complaint: Jan. 4, 2019 b. Defendants to file their motion to dismiss - March 5, 2019 c. Lead Plaintiff to file his opposition to the Defendants' motion to dismiss - May 3, 2019 d. Defendants to file their reply in support of their motion to dismiss - June 3, 2019 In light of the heightened pleading standard under the PSLRA and Fed. R. Civ. P. 9(b), the Parties' page limitations will be as follows: 30 pages for the Defendants' Motion, 20 pages for the Lead Plaintiff's Opposition, and 20 pages for the Defendants' Reply. A full-text copy of the Court's Nov. 28, 2018 Stipulated Order is available at https://is.gd/FobU0G from Leagle.com. Richard Ina, as Trustee for The Ina Family Trust, Plaintiff, represented by Dillon Hagius -- dhagius@faruqilaw.com -- Faruqi & Faruqi LLP, pro hac vice, Martin Muckleroy, Richard Gonnello , Faruqi & Faruqi LLP, Richard Gonnello -- rgonnello@faruqilaw.com -- Faruqi & Faruqi LLP, pro hac vice & Sherief Morsy -- smorsy@faruqilaw.com -- Faruqi & Faruqi LLP, pro hac vice. David Smith, Plaintiff, represented by Martin Muckleroy & Patrick R. Leverty -- pat@levertylaw.com -- Leverty & Associates Chtd. Kenneth Zelden, Plaintiff, represented by Andrew R. Muehlbauer, Muehlbauer Law Office, Ltd. Lenny Alvarado, Plaintiff, represented by Andrew R. Muehlbauer, Muehlbauer Law Office, Ltd., pro hac vice. CVI Investor Group, Movant, represented by Patrick R. Leverty, Leverty & Associates Chtd. CV Sciences, Inc., Michael Mona, Jr., Joseph D Dowling & Michael Mona, III, Defendants, represented by Terry A. Coffing -- tcoffing@maclaw.com -- Marquis & Aurbach & Michael David Maupin -- mmaupin@maclaw.com -- c/o Marquis Aurbach Coffing. Jerry Faulkner, Defendant, represented by Andrew R. Muehlbauer, Muehlbauer Law Office, Ltd. DHI MORTGAGE: Can Compel Arbitration in Ahlstrom FLSA Suit ---------------------------------------------------------- In the case, ROBERT W. AHLSTROM, Plaintiff, v. DHI MORTGAGE COMPANY GP, INC., et al., Defendants, Case No. 17-cv-04383-BLF (N.D. Cal.), Judge Beth Labson Freeman of the U.S. District Court for the Northern District of California, San Jose Division, granted the Defendants' Motion to Compel Arbitration and dismissed without prejudice the case. Ahlstrom brings claims on behalf of himself and a putative class of others similarly situated in connection with Defendants DHI GP, D.R. Horton, Inc., and DOES 1 through 50, for state law wage and hour and contract violations. He was employed by DHI Mortgage Company, Ltd. between July 2015 and December 2016. On June 27, 2015, Ahlstrom filled out and electronically signed an application for employment. On July 24, 2015, shortly after he was hired by DHI Ltd., Ahlstrom signed a Mutual Arbitration Agreement ("MAA"). Despite being hired by DHI Ltd., the MAA on its face is between the undersigned employee and D.R. Horton. The MAA covers all legal disputes and claims between the Employee and the Company, including claims by the Employee against the Company's parents, subsidiaries, affiliates, directors, employees, or agents, for, inter alia, wages, overtime, benefits, or other compensation and breach of any express or implied contract. The MAA includes various provisions relevant to the present motion. First, it includes a delegation-of-arbitrability provision. Second, it includes an opt-out provision. And finally, it includes a class action waiver. Before the Court is the Defendants' Motion to Compel Arbitration. The Court heard oral argument on the motion on Nov. 8, 2018. Judge Freeman is not persuaded by Ahlstrom's arguments on interpretation of the opt-out provision. Unfortunately for Ahlstrom, she says, interpretation of that provision is delegated exclusively to the arbitrator and cannot be adjudicated by the Court. The antecedent question of whether the arbitration agreement covers Ahlstrom's claims must be sent to the arbitrator. Given that Ahlstrom validly accepted the arbitrability provision, then, the question of whether he validly terminated his acceptance of the MAA is delegated to the arbitrator as an ancillary formation issue. Finally, the Judge finds it appropriate to dismiss the case without prejudice. The MAA includes a valid class action waiver, the substance of which Ahlstrom does not challenge. As such, given that Ahlstrom's individual claims must be sent to arbitration, she will dismiss the class action claims pending resolution of the arbitration. For the foregoing reasons, Judge Freeman granted the Defendants' Motion to Compel Arbitration. There being no remaining claims outside of arbitration, she dismissed the entire action without prejudice to filing a later action should the arbitrator determine the arbitration agreement is not binding on Ahlstrom, or to confirm or vacate any arbitration award. A full-text copy of the Court's Nov. 30, 2018 Order is available at https://bit.ly/2B38dvU from Leagle.com. Robert W. Ahlstrom, Plaintiff, represented by Thomas Alistair Segal -- thomas@setarehlaw.com -- Setareh Law Group, Ashley N. Batiste -- ashley@setarehlaw.com -- Setareh Law Group, Farrah Grant -- info@setarehlaw.com -- Setareh Law Group & Chaim Shaun Setareh -- shaun@setarehlaw.com -- Setareh Law Group. DHI Mortgage Company GP, Inc. & D.R. Horton, Inc., Defendants, represented by Alexandra Caroline Aurisch -- alexandra.aurisch@ogletree.com -- Ogletree, Deakins, Nash, Smoak and Stewart, P.C., Jack Steven Sholkoff -- jack.sholkoff@ogletree.com -- Ogletree, Deakins, Nash, Smoak & Stewart, P.C. & Jennifer Lindsay Katz -- jennifer.katz@ogletree.com -- Ogletree Deakins. DIGNITY HEALTH: Cruz Files Suit in Cal. Super. Ct. -------------------------------------------------- A class action lawsuit has been filed against Dignity Health. The case is styled as Isidro B Cruz and behalf of others similarly situated, Plaintiff v. Dignity Health, Does 1-100, Defendants, Case No. 34-2018-00245506-CU-OE-GDS (Cal. Super. Ct., Sacramento Cty., Nov. 29, 2018). Dignity Health is a California-based not-for-profit public-benefit corporation that operates hospitals and ancillary care facilities in 3 states.[BN] The Plaintiff is represented by Kevin T. Barnes, Esq. DSV AIR & SEA: Pitarro Files Class Suit in Cal. Super. Ct. ---------------------------------------------------------- A class action lawsuit has been filed against DSV Air & Sea, Inc., et al. The case is styled as Maya Pitarro an individual, on behalf of herself and all others similarly situated, Plaintiff v. DSV Air & Sea, Inc., a Delaware Corporation, UTI United States, Inc. a New York Corporation, Does 1 to 50, inclusive, Defendants, Case No. CGC18571672 (Cal. Super. Ct., San Francisco Cty., Nov. 29, 2018). DSV Air & Sea Inc. provides transport and logistics services in the United States and internationally. It offers air, sea, and land freight forwarding services, and consolidating/assembly/distribution, non-vessel operating common carrier, project forwarding/charter and part charter, hazmat cargo handling, export and import, and federal maritime commission services. UTi, United States, Inc. provides freight forwarding, transportation, logistics, warehouse, and supply chain management services in the United States.[BN] The Plaintiff is represented by Matthew J. Matern, Esq. ESTERLINE TECH: Kent Sues Over TransDigm Merger ----------------------------------------------- Michael Kent, individually and on behalf of all others similarly situated, Plaintiff, v. Esterline Technologies Corporation, Curtis C. Reusser, Michael J. Cave, Michael J. Covey, Delores M. Etter, Anthony P. Franceschini, Paul V. Haack, Mary L. Howell, Scott E. Kuechle, nd Nils E. Larsen, Defendants, Case No. 18-cv-01862 (D. Del., November 26, 2018), seeks (i) to enjoin defendants and all persons acting in concert with them from proceeding with, consummating or closing the acquisition of Esterline Technologies Corporation by TransDigm Group Incorporated and Thunderbird Merger Sub Inc., (ii) rescinding it in the event defendants consummate the merger, (iii) rescissory damages, (iv) costs of this action, including reasonable allowance for plaintiff's attorneys' and experts' fees, and (v) such other and further relief under the Securities Exchange Act of 1934. Pursuant to the terms of the Merger Agreement, Esterline's stockholders will receive $122.50 in cash for each share of Esterline common stock they hold. Esterline is a supplier to the aerospace and defense industry specializing in materials, avionics and controls and sensors and systems. The Plaintiff asserts that the solicitation statement filed in connection with the merger omitted material information regarding Esterline's financial projections and the analyses performed by its financial advisor, Goldman Sachs & Co. LLC, fails to disclose illustrative present value of future share price analyses, the discounted cash flow analyses and the premia paid analysis. [BN] Plaintiff is represented by: Brian D. Long, Esq. Gina M. Serra, Esq. RIGRODSKY & LONG, P.A. 300 Delaware Avenue, Suite 1220 Wilmington, DE 19801 Tel: (302) 295-5310 Facsimile: (302) 654-7530 Email: bdl@rl-legal.com gms@rl-legal.com - and - Richard A. Maniskas, Esq. RM LAW, P.C. 1055 Westlakes Dr., Ste. 3112 Berwyn, PA 19312 Tel: (484) 324-6800 Email: rm@maniskas.com EVANS HOTELS: Protective Order Bid in Rutherford Suit Partly OK'd ----------------------------------------------------------------- In the case, JAMES RUTHERFORD, et al., Plaintiffs, v. EVANS HOTELS, LLC, et al., Defendants, Case No. 18cv435-JLS(MSB)(S.D. Cal.), Magistrate Judge Micahel S. Berg of the U.S. District Court for the Southern District of California (i) granted in part and denied in part the Defendant's request for an Order Limiting the Scope of 30(b)(6) Deposition Topics as a Motion for Protective Order, and (ii) denied as mooot the Defendant's request for leave to file a Motion for Protective Order. Rutherford and The Association 4 Equal Access are alleging violations of the California Unruh Civil Rights Act and Title III of Americans with Disabilities Act. The Defendant manages three hotel properties: The Lodge at Torrey Pines, the Catamaran Resort Hotel and Spa, and the Bahia Resort Hotel. The Plaintiffs allege that Rutherford visited the websites of the Defendant's hotel properties, did not see accessibility information on the websites, and therefore did not make a reservation at any of the hotels. They bring the action on behalf of themselves, and on behalf of all others similarly situated pursuant to Federal R. Civ. P. 23(a)(b)(2), and alternatively, (b)(3), on behalf of all legally disabled individuals in the United States who have attempted to access the Defendant's websites. For the claims under California law, the Plaintiffs seek to represent a California subclass of all legally disabled individuals in California who attempted to visit the Defendant's websites. The Plaintiffs seek a Rule 30(b)(6) deposition with regard to the Defendant's employment practices and its physical facilities. In the instant motion, the Defendant seeks to preclude or limit the scope of the proposed deposition topics, or obtain leave to file a Motion for Protective Order. The parties contacted Magistrate Judge Skomal on Nov. 2, 2018, in order for the Defendant to seek leave to file a Motion for a Protective Order. On Nov. 6, 2018, prior to Magistrate Judge Skomal ruling on the Defendant's request for leave to file a Motion for a Protective Order, the case was reassigned to Magistrate Judge Berg. The Defendant seeks to limit the scope of the following topics as overbroad and unreasonable: a. Proposed Topic 1: The allegations of the Operative Complaint in the action. The Defendant objected that the topic is unclear and may involve attorney-client privilege and work product doctrine. b. Proposed Topic 10: Facts or documents that support any affirmative defense relied upon or asserted by the Defendant. The Defendant objected that the request is vague, ambiguous, overbroad, and might invade attorney-client privilege and work-product doctrine. c. Proposed Topic 11: The Defendant's responses to the Plaintiff's written discovery requests. d. Proposed Topic 17: The conduct of the Defendant in responding to the Plaintiff's written discovery requests in the matter. Magistrate Judge Berg denied the Defendant's motion with respect to Proposed Topic 1 finding that the Defendant's refusal to provide discovery on this basis to be without merit. The Defendant seeks to limit the following topics to actual issues in the case and alleged violations of 28 CFR Section 36.302(e)(1): a. Proposed Topic 2: The manner in which the Defendant ensures compliance with ADA requirements at its hotels including, but not limited to, identifying individuals, policies, procedures, and documents related to the Defendant's ADA compliance efforts. b. Proposed Topic 12: The Defendant's websites at issue. c. Proposed Topic 13: Any changes to the Defendant's hotel websites since th action was initiated including but not limited to elements of the website related to hotel reservations. The Magistrate Judge limits discovery on Proposed Topics 2, 12, and 13 to the relevant portions of the Defendant's websites regarding room reservations only and the alleged violations of 28 CFR 36.302(e)(1) with regard to the hotels' website reservation system. The Defendant seeks to limit the following topics, stating that there are less burdensome discovery means that have been offered and rejected by the Plaintiff: a. Proposed Topic 3: The organizational structure of the Defendant, including hierarchical structures of subsidiaries, parent companies, and/or related affiliate companies. b. Proposed Topic 4: Ownership and/or control of hotels operated by the Defendant. c. Proposed Topic 9: Information on any customer complaints, lawsuits, incidents reports and/or other grievances that the Defendant has received regarding accessibility barriers related to its hotels for the last 6 years. As the Plaintiff has agreed to allow the Defendant to produce documentation in lieu of witness testimony, the Magistrate does not need to make a ruling on the issue. Nonetheless, he limits production of documentation on Proposed Topic 9 to any customer complaints, lawsuits, incident reports and/or other grievances that the Defendant has received in the last six years with regard to the relevant portions of the Defendant's websites regarding room reservations only. The Defendant seeks to limit the following topics, claiming that they are not proportional to the needs of the case: a. Proposed Topic 5: Policies, practices and procedures, construction standards and/or other guidelines that the Defendant follows regarding the construction, alteration and maintenance of the hotels operated by the Defendant. b. Proposed Topic 7: The terms of the Defendant's leases or other similar legal arrangements applicable to its facilities including provisions delineating responsibility for ensuring compliance with ADA requirements regarding parking and/or paths of travel/access at the Defendant's facilities. c. Proposed Topic 8: Information on the Defendant's implementation and use of internal and/or third-party surveys, evaluations and/or assessments (Surveys) across Defendant's locations relating to the Defendant's compliance with the ADA, including but not limited to, the qualifications and training of individuals to conduct such Surveys, the frequency and scope of such Surveys, the policies, practices and procedures surrounding the Surveys, and the procedures and/or policies relating to remediation and monitoring following the completion of Surveys. The Magistrate granted the Defendant's motion with respect to Proposed Topics 5, 7 and 8. He finds that these topics to be outside the scope of the issues in the case. The Defendant seeks to limit the following topics, stating that they request numerical data which could be more accurate and less burdensome if produced in writing: a. Proposed Topic 14: The number of visitors to the Defendant's websites. b. Proposed Topic 15: The number of persons that reserved a room through the Defendant's websites. c. Proposed Topic 16: The number of persons that reserved an accessible room through the Defendant's websites. Magistrate Judge Berg denied the Defendant's motion as to these topics. As the Defendants have apparently already provided the information to the Plaintiffs in written discovery, it appears to be a waste of resources to obtain the same information through the taking of depositions. For these reasons, Magistrate Judge Berg granted in part and denied in part the Defendant's Motion for Protective Orde, and denied as moot the Defendant's motion for leave to file a Motion for Protective Order. A full-text copy of the Court's Nov. 28, 2018 Order is available at https://is.gd/1PGeqv from Leagle.com. James Rutherford, an individual & The Association 4 Equal Access, Plaintiffs, represented by Elizabeth Ann Wagner -- elizabeth@kazlg.com -- Kazerouni Law Group, APC, Joseph R. Manning, Jr. -- joe@manninglawoffice.com -- The Law Offices of Joseph R. Manning Jr. & Matthew M. Loker -- ml@kazlg.com -- Kazerouni Law Group, APC. Evans Hotels, LLC, a California limited liability company, Defendant, represented by Nadia Parra Bermudez -- nbermudez@klinedinstlaw.com -- KLINEDINST PC & Charles E.H. Gulley, III -- CGuilley@Klinedinst.com -- Klinedinst PC. FAMOUS BOURBON: Ramos Moves for Class Certification Under FLSA -------------------------------------------------------------- The Plaintiffs in the lawsuit styled BROOKE RAMOS AND TAYLOR JONES v. FAMOUS BOURBON MANAGEMENT GROUP, INC., 327 BOURBON STREET, INC. (AKA "TEMPTATIONS"), TEMPTATIONS, INC. (AKA "STILETTOS"), PLATINUM BOURBON, INC. (AKA "LIPSTICKS"), SILVER BOURBON, INC. (AKA "MANSION ON BOURBON " OR "SCORES"), BRASS BOURBON, INC. (AKA "BOURBON BAD BOYS" AKA "FISHBOWLS SOLD HERE"), LA BEAUTI, INC. (AKA "BEERFEST"), JAXX'S HOUSE, INC. (AKA "JAZZ CAFE"), MANHATTAN FASHION, LLC (AKA "SCORES WEST"), FAIS DEAUX-DEAUX, INC. (AKA "LAST CALL"), FIORELLA'S ON DECATUR, INC. (AKA "FIORELLA'S CAFE"), BOURBON BURLESQUE CLUB, INC., (AKA "TEMPTATIONS"), N'AWLINS ENTERTAINMENT OF LOUISIANA, INC. D/B/A N'AWLINS ENTERTAINMENT GROUP; GUY OLANO, III, GUY OLANO, JR. AND JOSEPH ASCANI, Case No. 2:18-cv-06573-JTM-DEK (E.D. La.), moves for class certification under the Fair Labor Standards Act. The "FLSA Collective Class" consists of: All persons employed by Defendants since December 2015 who were subjected to an invalid tip credit policy because they were required to kick back a portion of their tips to Defendants' owners and managers in violation of the Fair Labor Standards Act, 29 U.S.C. 201, et seq. ("FLSA"). In their Collective Action Complaint, the Plaintiffs asserted claims on behalf of a collective class for wages wrongfully not paid to them by the Defendants due to the Defendants' actions of taking a "tip credit" and paying them less than $7.25 per hour, but requiring them to "kick back" a portion of their tips to the Defendants' owners and management staff, in violation of the Fair Labor Standards Act. In addition, the Plaintiffs ask that the Court authorize notice of this collective action to potential members of the FLSA Collective Class and approve the proposed notice and consent form submitted herewith.[CC] The Plaintiffs are represented by: Jody Forester Jackson, Esq. Mary Bubbett Jackson, Esq. JACKSON+JACKSON 201 St. Charles Avenue, Suite 2500 New Orleans, LA 70170 Telephone: (504) 599-5953 Facsimile: (888) 988-6499 E-mail: jjackson@jackson-law.net mjackson@jackson-law.net - and - Christopher L. Williams, Esq. WILLIAMS LITIGATION, L.L.C. 639 Loyola Ave., Suite 1850 New Orleans, LA 70113 Telephone: (504) 308-1438 Facsimile: (504) 308-1446 E-mail: chris@williamslitigation.com FIFTH THIRD: Protective Order Bid in Hendrickson FDCA Suit Denied ----------------------------------------------------------------- In the case, Kelley L. Hendrickson, Plaintiff, v. Fifth Third Bank, and 11th Hour Recovery, Inc., Defendants, Case No. 18-cv-86 (WMW/TNL) (D. Minn.), Magistrate Judge Tony N. Leung of the U.S. District Court for the District of Minnesota (i) granted the Plaintiff's Motion for Leave to File Amended Complaint, and (ii) denied Defendant Fifth Third Bank's Motion for Protective Order. In August 2016, Hendrickson obtained a loan from Fifth Third for the purchase of an automobile. The original balance on the loan was $14,419.37. As a condition of the loan, the Plaintiff granted Fifth Third a security interest in the automobile. Between June and October 2017, the Plaintiff made five late payments on her loan, which Fifth Third accepted. She further claims that she spoke with a Fifth Third representative on several occasions, who told her that Fifth Third would not repossess her car as long as she continued to make payments. At no point did Fifth Third indicate to the Plaintiff, either orally or in writing, that it intended to strictly enforce the terms of her loan agreement. Sometime around October 2017, Fifth Third hired Defendant 11th Hour to repossess the car. According to the Plaintiff, 11th Hour repossessed her car in the middle of October, without providing any notice to her beforehand. She subsequently filed suit in Hennepin County. The Plaintiff alleged that 11th Hour violated the Federal Debt Collection Practices Act, that Fifth Third unlawfully converted her car, and that both Defendants violated Minnesota Statutes section 336.9-609. Fifth Third removed the lawsuit to federal court. On March 13, 2018, the Court issued its pretrial scheduling order. Among other things, the pretrial scheduling order required the parties to file amended pleadings no later than May 1, 2018. On June 1, 2018, the Plaintiff moved to amend the pretrial scheduling order, seeking to extend the deadline to file amended pleadings to Aug. 1, 2018. The Plaintiff's motion was based in part on the fact that she had retained new counsel. Approximately six weeks later, in response to discovery requests that the Plaintiff served on June 13, 2018, Fifth Third moved for a protective order. The Court granted the Plaintiff's motion to amend the pretrial scheduling order on July 26, 2018 and issued an amended scheduling order the same day, extending the deadline to file amended pleadings to Aug. 1, 2018. On Aug. 1, 2018, the Plaintiff filed a motion for leave to file an amended complaint. Her amended complaint seeks to (1) turn her individual action into a putative class action and (2) add 10 "John Doe Repossession Agencies" as Defendants. The Court held a hearing on Oct. 30, 2018 on both the Plaintiff's motion to file an amended complaint and Fifth Third's motion for a protective order. At that hearing, it ordered the parties to file supplemental briefing related to Fifth Third's motion for a protective order. The parties filed their briefs on Nov. 13, 2018 and the Court took both motions under advisement. Fifth Third seeks a protective order regarding the following interrogatories, requests for admission, and requests for production that Plaintiff served on June 13, 2018: a. Interrogatory No. 10: Identify and explain the Bank's policy and procedure for sending a written strict compliance notice to Minnesota customers when the Bank has accepted late or partial payments from that Minnesota customer and then is warning those customers that no such future late or partial payments will be tolerated. b. Interrogatory No. 11: Identify and explain the Bank's policy and procedure for sending a written notice to Minnesota customers when the Bank has accepted late or partial payments from that Minnesota customer and then is warning those customers that failure to make the arrearage payments by a date specific may result in repossession of the collateral. c. Interrogatory No. 13: Have any guidelines or procedures identified in your preceding answers to interrogatories been modified in any way since the occurrence of the facts and circumstances as alleged in the Complaint? If so, describe in detail all such modifications, provide the dates upon which such modifications were made, identify the individuals authorizing such modification, and provide the reasons therefore. d. Interrogatory No. 14: Identify and explain the Bank's policies and procedures, if any, for phone conversation with borrowers who are delinquent on vehicle loans. e. Interrogatory No. 15: Identify and explain the Bank's policies and procedures, if any, for entering into credit accommodation agreements, forbearance agreements, or other arrangements to delay repossession in exchange for promises of future loan payments. f. Interrogatory No. 18: From Jan. 11, 2017 through the present date, identify how many borrowers had their vehicles repossessed in Minnesota. g. Interrogatory No. 19: From Jan. 11, 2014 through the present date, identify how many borrowers had their vehicles repossessed in Minnesota. h. Interrogatory No. 20: With regard to the repossession identified in the previous Interrogatory, identify whether or not Defendant Bank sent the borrower a Cobb Notice prior to the repossession. i. Interrogatory No. 21: Identify and describe all complaints, lawsuits, regulatory investigations or communications to Defendant Bank concerning alleged wrongful repossession from Jan. 1, 2014 to the present j. Interrogatory No. 22: Identify all Bank memos, emails, policies or other writings or communications that refer to Minnesota law, Minnesota regulations, strict compliance notices, or Cobb Notices. k. Request for Admission No. 11: Admit that within the past year, Defendant Bank has repossessed over 40 vehicles from Minnesota customers. l. Request for Admission No. 12: Admit that between Jan. 1, 2014 through Jan. 11, 2018, Defendant Bank did not have a policy or procedure for sending Cobb Notices. m. Request for Admission No. 13: Admit that between Jan. 1, 2014 through Jan. 11, 2018, Defendant Bank did not have a policy or procedure for notifying borrowers in writing that strict compliance with the terms their loan or contract is required. n. Request for Production No. 9: From January 2016 through the present date, all procedural and policy manuals in existence and in the possession or control of Defendant Bank which relate to the following: (i) colletion/repossession of delinquent accounts; (ii) creation and documentation of accommodation or forbearance on repossession arrangements or agreements with borrowers; (iii) Mailing of notices related to strict compliance with original contract terms, account arrearages, delinquent payment history, repossession remedies, and/or Cobb notices; (iv) handling payments on account after the account has been designated or referred to collection/repossession; (v) assigning accounts to outside collection contractors for collection/repossession; (vi) issuing notices of sales of the collateral subject to the security agreements; and (vii) any other procedures which relate to the subject matter. o. Request for Production No. 12: Any and all policies referencing Minnesota law, Cobb Notices, and/or notices concerning strict compliance with contract or loan terms. Fifth Third argues that a protective order should issue for two reasons. First, it contends that any request related to the Plaintiff's putative class actions claims is irrelevant and disproportional to the needs of this lawsuit because the Plaintiff has only filed an individual claim. Second, it argues that discovery related to its internal policies and procedures is also not relevant and disproportional to the needs of the lawsuit because Fifth Third's internal policies and procedures are not relevant to any standard of conduct at issue in the case. With respect to the Plaintiff's motion, the Defendants argue that the Plaintiff's motion should be denied because they will suffer substantial prejudice and because the Plaintiff's proposed amendments are futile. Alternatively, they argue that, if the motion for leave to amend is granted, the Court should consolidate the matter with a class action complaint filed in Sampson et al. v. Fifth Third Bank, No. 18-cv-1622 (D. Minn.) on June 11, 2018. Magistrate Judge Leung granted the Plaintiff's Motion for Leave to File Amended Complaint. He finds, among other things, that (i) good cause to amend the scheduling order and notes that the Defendants could not point to pending motions as evidence of prejudice when they knowingly chose to file those motions after the Plaintiff moved to amend the scheduling order; (ii) at this stage of litigation, it would be more efficient for the amendment to go forward, for the parties to determine what motion practice is required to resolve the issue of consolidation between this matter and Sampson, and for the Defendants' argument regarding the Plaintiff's adequacy as a class representative to be tested at the class certification hearing with the other Rule 23(a) factors; and (iii) judicial economy is not best served by consolidating the matter with Sampson through the order. The Plaintiff will file her Amended Complaint within seven days of the Order. The Magistrate denied Fifth Third Bank's Motion for Protective Order. Because he has granted the Plaintiff's motion for leave to amend her complaint, he also concludes that the Plaintiff's discovery requests that relate to her putative class action claims are relevant and proportional to the scope of her lawsuit. He also finds that undoubtedly, information related to Fifth Third's internal policies and procedures, including lawsuits related to those policies and procedures would be relevant and reasonably likely to lead the discovery admissible evidence related to the factual question of what constitutes a sufficient Cobb notice. In any event, it is not certain that the information that the Plaintiff seeks would even be inadmissible at trial. All discovery related to Interrogatories 18, 19, and 20, and Request for Admission 11 of the Plaintiff's First Set of Interrogatories, Requests for Admissions with Interrogatory, Requests For Production of Documents, and Requests for Productions of Statements to Defendant Fifth Third Bank is stayed until the Motions for Judgment on the Pleadings are decided in the matter. All prior consistent orders remain in full force and effect. Failure to comply with any provision of the Order or any other prior consistent order will subject the non-complying party, non-complying counsel and/or the party such counsel represents to any and all appropriate remedies, sanctions and the like, including without limitation: assessment of costs, fines and attorneys' fees and disbursements; waiver of rights to object; exclusion or limitation of witnesses, testimony, exhibits, and other evidence; striking of pleadings; complete or partial dismissal with prejudice; entry of whole or partial default judgment; and/or any other relief that the Court may from time to time deem appropriate. A full-text copy of the Court's Nov. 28, 2018 Order is available at https://is.gd/W8G5UA from Leagle.com. Kelley L. Hendrickson, Plaintiff, represented by Adam R. Strauss, Tarshish Cody, PLC, Andrew C. Walker, Curtis Walker Attorney at Law, Bennett Hartz & Thomas J. Lyons, Jr., Consumer Justice Center P.A. Fifth Third Bank, Defendant, represented by C.J. Schoenwetter -- cj.schoenwetter@bowmanandbrooke.com -- Bowman & Brooke LLP, David J. Carrier -- david.carrier@bowmanandbrooke.com -- Bowman and Brooke LLP & Patrick T. Lewis -- plewis@bakerlaw.com -- Baker & Hostetler LLP, pro hac vice. 11th Hour Recovery, Inc., Defendant, represented by Michael G. Phillips -- mike@phillipslawmn.com -- Phillips Law, PLLC. FIRST SOLAR: Court Narrows Claims in Securities Fraud Suit ---------------------------------------------------------- In the case, Maverick Fund, L.D.C.; Maverick Fund USA, Ltd.; Maverick Fund II, Ltd., Maverick Neutral Fund, Ltd.; Maverick Neutral Levered Fund, Ltd.; Maverick Long Fund, Ltd.; and Maverick Long Enhanced Fund, Ltd., Plaintiff, v. First Solar, Inc.; Michael J. Ahern; Robert J. Gillette; Mark R. Widmar; Jens Meyerhoff; James Zhu; Bruce Sohn; and David Eaglesham, Defendants, No. CV15-1156-PHX-DGC (D. Ariz.), Judge David G. Campbell of the U.S. District Court for the District of Arizona granted in part and denied in part the Defendants' motion to dismiss under Rule 9(b) and 12(b)(6), and under the Private Securities Litigation Reform Act. The Plaintiffs sued the Defendants for violations of federal and state securities laws, common law fraud, and negligent misrepresentation. Between May 4, 2011 and Dec. 15, 2011, the Plaintiffs purchased millions of First Solar common stock. They purchased these shares relying on the Defendants' misrepresentations that First Solar would reach grid parity through advanced technology and large scale solar power plants in the southwest. They also relied on statements by the Defendants that although the Defendants experienced problems with defective and underperforming panels throughout 2009 to 2011, the problems were minimal and would not affect First Solar's earnings or grid parity goals. Beginning in 2009, First Solar announced a plan to reach grid parity by 2010-2012. In 2010-2011, First Solar became aware that the plants were not producing the quantity of energy projected due to poor performance in high heat environments. In July 2010, First Solar released a statement that it had a "manufacturing excursion" from June 2008 to June 2009. According to its release, 4% of the modules produced during that period could experience premature power loss. On several occasions from 2010 to 2011, First Solar announced robust earnings projections, positive expectations for construction of solar power plants, reduction of CpW, and progress on achieving grid parity. The Defendants never mentioned issues involving panel performance in high heat environments or possible heat degradation in panels. On Sept. 13, 2011, the Plaintiffs met with Gillette to discuss First Solar. Gillette assured them that the projects in the southwest would drive profits despite cheap imports from China. Gillette also reassured them that First Solar was on track to achieve grid parity. Over the second half of 2011, First Solar made several announcements regarding high-level executives leaving the company and delays in construction of solar power plants, which caused the stock value to dip. In late 2011, First Solar reduced its earnings projections and announced that it would have to slash its operation margins to achieve grid parity. By the beginning of 2012, First Solar announced a net loss of $39.5 million for 2011, an additional $125.8 million warranty reserve cost for the manufacturing excursion, and an additional $37.8 million for handling heat degradation issues in panels. As a result of these announcements, the Plaintiffs' stock value dropped precipitously. The Plaintiffs allege that they purchased First Solar common stock and suffered substantial losses after relying on the Defendants' false and misleading statements. They allege, among other things, that the Defendants concealed the existence and severity of known defects in First Solar's panels; the Defendants misrepresented panel degradation rates and concealed heat-related problems with panels and systems; and the Defendants manipulated their CpW metric reported to investors. The Plaintiffs allege six causes of action: (1) violation of Section 10(b) of the Securities Exchange Act of 1934; (2) violation of Section 20(a) of the Securities Exchange Act of 1934; (3) common law fraud; (4) violation of A.R.S. Section 44-1991(A)(2)-(2) and A.R.S. Section 44-2003(A); (5) violation of A.R.S. Section 44-1999(B); and (6) negligent misrepresentation under New York common law. The Defendants move to dismiss under Rule 9(b) and 12(b)(6), and under the Private Securities Litigation Reform Act. They argue that the Plaintiffs' Section 10(b) claim should be dismissed for three reasons. First, the Plaintiffs failed to plead that the Defendants made actionable false or misleading statements. Second, they have not pled sufficient facts to establish loss causation. Third, the Plaintiffs have not pled sufficient facts to establish scienter. Judge Campbell granted in part and denied in part the Defendants' motion to dismiss. He granted the Motion as to the Plaintiffs claim for negligent misrepresentation and denied as to the rest of the claims. Among other things, the Judge finds that the Plaintiffs' allegations are based on the Defendants' legal duty to all shareholders, not on a special or unique relationship. They allege they relied on statements and publications issued for all shareholders when making purchases of First Solar stock. They allege numerous communications, meetings, and phone calls, but identify only one individual meeting with the Defendants, where the Defendants reassured them of First Solar's projections and expectations after an investors' conference. He finds that the Plaintiffs fail to allege any facts that demonstrate this meeting included an exchange of information distinct from the public exchanges and indicative of a special trust or confidence between the parties. The Judge finds that the Plaintiffs' allegations are insufficient to demonstrate a special relationship, and will dismiss the negligent misrepresentation claim. The Judge granted the Plaintiff's request to amend. The Plaintiffs will file an amended complaint by Dec. 11, 2018. A full-text copy of the Court's Nov. 27, 2018 Order is available at https://is.gd/ykxLkg from Leagle.com. Maverick Fund LDC, Maverick Fund USA Limited, Maverick Fund II Limited, Maverick Neutral Fund Limited, Maverick Neutral Levered Fund Limited, Maverick Long Fund Limited & Maverick Long Enhanced Fund Limited, Plaintiffs, represented by David A. Thorpe -- david@dstlegal.com -- Dietrich Siben Thorpe LLP, Matthew P. Siben, Dietrich Siben Thorpe LLP & Richard Glenn Himelrick -- RGH@TBLAW.COM -- Tiffany & Bosco PA. First Solar Incorporated, Michael J Ahearn, Robert J Gillette, Mark R Widmar, Jens Meyerhoff, James Zhu, Bruce Sohn & David Eaglesham, Defendants, represented by Daniel Slifkin -- dslifkin@cravath.com -- Cravath Swaine & Moore LLP, Joseph Nathaniel Roth -- jroth@omlaw.com -- Osborn Maledon PA, Karin A. DeMasi -- kdemasi@cravath.com -- Cravath Swaine & Moore LLP & Michael T. Reynolds -- mreynolds@cravath.com -- Cravath Swaine & Moore LLP. FLORIDA: Merchison Asks to Extend to Feb. 4 Time to File Writ ------------------------------------------------------------- Plaintiff Michael Merchison submitted to Justice Clarence Thomas an application to extend to February 4, 2019, the time to file a petition for a writ of certiorari in the matter styled MICHAEL MERCHISON, on behalf of himself and all others similarly situated, Petitioner v. STATE OF FLORIDA, Case No. 18A541, in the Supreme Court of the United States. The Lower Court Case is titled Michael Merchison v. Florida, Case No. 3D16-2084, in the District Court of Appeal of Florida, Third District. Mr. Merchison asks the Court to grant his motion for extension of time due to reasons of "excusable neglect" and good cause shown, and to permit him an additional 60 days until February 4, 2019, to file his Petition for Writ of Certiorari. On October 10, 2018, Hurricane Michael hit directly over Jackson County where the Petitioner is housed and destroyed the prison law library located at Apalachee Correctional Institution ("ACT") in Sneads, Florida. Law library access was not returned to ACI inmates until November 1, 2018. Mr. Merchison contends that this delay caused by the Hurricane created a hardship in that his petition will have to be placed in line with all other inmate demands for extensions of time and any interim inmate deadline filings that have to be prepared in the coming month. Plaintiffs-Petitioner Michael Merchison, of Sneads, Florida, appears pro se.[BN] FOUR SEASONS: Olsen Sues Over Blind-inaccessible Website -------------------------------------------------------- Thomas J. Olsen, Individually and on behalf of all other persons similarly situated, Plaintiff, v. Four Seasons Hotel Limited, Defendant, Case No. 1:18-cv-06773-MKB-RLM (E.D. N.Y., November 29, 2018) is a civil rights action against Defendant for its failure to design, construct, maintain, and operate its website, www.fourseasons.com/NewYork, to be fully accessible to and independently usable by Plaintiff Olsen and other blind or visually-impaired people. Defendant denies full and equal access to its Website in violation of the Americans with Disabilities Act, New York State Human Rights Law and New York City Human Rights Law, says the complaint. Plaintiff Olsen seeks a permanent injunction to cause Defendant to change its corporate policies, practices, and procedures so that its Website will become and remain accessible to blind and visually impaired consumers, says the complaint. Plaintiff Olsen, at all relevant times, is a resident of Brooklyn, New York, Kings County. As a blind, visually-impaired handicapped person, he is a member of a protected class of individuals under Title III of the ADA. Defendant is at all relevant times a foreign business corporation that is organized under Canadian law, and authorized to do business in the State of New York.[BN] The Plaintiff is represented by: Douglas B. Lipsky, Esq. Christopher Lowe, Esq. LIPSKY LOWE LLP 630 Third Avenue, Fifth Floor New York, NY 10017-6705 Phone: 212-392-4772 Email: doug@lipskylowe.com chris@lipskylowe.com GC SERVICES: Renewed Class Cert. Bid in Ocampo FDCPA Suit Denied ---------------------------------------------------------------- In the case, JOSE LUIS OCAMPO, Plaintiff, v. GC SERVICES LIMITED PARTNERSHIP, Defendant, Case No. 16-cv-9388 (N.D. Ill.), Judge Robert M. Dow, Jr. of the U.S. District Court for the Northern District of Illinois, Eastern Division, denied the Plaintiff's renewed motion for class certification. On Aug. 18, 2016, after Ocampo could no longer afford to pay a debt owed to DISH Network due to his financial circumstance, the Defendant -- a collection agency -- mailed him a collection letter regarding his debt. The collection letter, which wasthe Defendant's initial communication with the Plaintiff, provided information regarding his account with DISH Network, such as the account number, the original creditor (i.e. DISH Network), and a current balance due. The collection letter stated that the debt had been placed in collection and the balance due was $523.70. The Plaintiff alleges that the Defendant never intended to report his account to the three major credit reporting agencies as it was the Defendant's practice only to perform account reviews on consumers, using their credit reports, but not to actually report accounts on consumers. On Sept. 30, 2016, he filed the class action lawsuit against GCS and GC Services International, LLC, bringing one count under the Fair Debt Collection Practices Act ("FDCPA"). Specifically, he claims that the Aug. 18, 2016 collection letter violated Section 1692g(a)(1) and Section 1692e of the FDCPA. The Plaintiffs seek to certify a Rule 23(b)(3) class of (1) all persons with addresses in the State of Illinois (2) from whom the Defendant attempted to collect a delinquent consumer debt, (3) upon which the Defendants sent a form letter substantially similar to that of the Plaintiff's Exhibit D, which contained the following paragraphs: (a) While we have not reported this account to any consumer reporting agency as of the date of this letter, our client has authorized us to report your account to the three major consumer reporting agencies unless we are able to resolve your account; and (b) Please read the following message provided by DISH Network: The balance that has been placed in collections may include the cost of your leased DISH Network equipment. If you choose to return the equipment to DISH Network they will reverse the leased equipment fees and/or refund any payments made that were applied to equipment charges; (4) From which the letter was sent between a time on or after Sept. 30, 2015, and on or before Oct. 14, 2017. Before the Court is the Plaintiff's renewed motion for class certification. Judge Dow altered the Plaintiff's proposed class definition to (1) all persons with addresses in the State of Illinois (2) who leased equipment from DISH Network (3) from whom Defendant GC Services Limited Partnership attempted to collect a delinquent consumer debt, (4) by sending an initial communication in the form of a letter containing the following paragraphs: (a) While we have not reported this account to any consumer reporting agency as of the date of this letter, our client has authorized us to report your account to the three major consumer reporting agencies unless we are able to resolve your account; and (b) Please read the following message provided by DISH Network: The balance that has been placed in collections may include the cost of your leased DISH Network equipment. If you choose to return the equipment to DISH Network they will reverse the leased equipment fees and/or refund any payments made that were applied to equipment charges; (5) sent on or after Sept. 30, 2015 and on or before Oct. 14, 2017. With this altered class definition, the Judge addresses the remaining Rule 23 requirements. He finds that because the Plaintiff has not satisfied the adequacy requirement, he will not certify a class at this time. Because he is denying class certification based on the Plaintiff's failure to satisfy Rule 23(a)'s adequacy requirement, he holds he needs not determine at this time whether the Plaintiff's class should be limited to those who received letters with the challenged language. Should the Plaintiff again move for class certification, however, the Plaintiff should consider whether such a limitation is appropriate. Finally, because the Court did not specifically request supplemental briefing on whether it legally is possible to substitute in a named Plaintiff in the case, the Judge defers consideration of whether substitution of the named Plaintiff is appropriate. For these reasons, Judge Dow denied the Plaintiff's renewed motion for class certification. The Judge gave the Plaintiff until Jan. 7, 2019 to file any motion for substitution. The case is set for further status hearing on Jan. 10, 2019 at 9:00 a.m. A full-text copy of the Court's Nov. 28, 2018 Memorandum Opinion and Order is available at https://is.gd/Lrg1vd from Leagle.com. Jose Luis Ocampo, individually and on behalf of all others similarly situated, Plaintiff, represented by Celetha Chatman -- cchatman@communitylawyersgroup.com -- Community Lawyers Group, Ltd. & Michael Jacob Wood -- mwood@communitylawyersgroup.com -- Community Lawyers Group, Ltd. GC Services Limited Partnership, Defendant, represented by Jill Marie Felkins -- jfelkins@smsm.com -- Segal, McCambridge, Singer & Mahoney & Alexios James Dravillas -- adravillas@smsm.com -- Segal McCambridge Singer Mahoney. GOVERNMENT EMPLOYEES: Court Allows Bid to Amend Sullivan Suit ------------------------------------------------------------- In the case, ELIZABETH SULLIVAN, MAURICE JONES, WILSON SANTOS and ANTHONY C. COOK, Plaintiffs, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY and GEICO GENERAL INSURANCE COMPANY, Defendants, Case No. 6:17-cv-891-Orl-40KRS (M.D. Fla.), Magistrate Judge Karla R. Spaulding of the U.S. District Court for the Middle District of Florida, Orlando Division, (i) granted in part and denied in part the Plaintiffs' Motion to Substitute Micah Bellamy as Named Plaintiff in Place of Elizabeth Sullivan; and (ii) denied as moot Intervenor Micah Bellamy's Motion to Intervene. On Aug. 29, 2017, Plaintiffs Sullivan, Jones (on behalf of the estate of Kailyn Jones), Santos and Cook, on behalf of themselves and all others similarly situated, filed a Second Amended Class Action Complaint against Defendants Government Employees and GEICO General. On April 10, 2018, Consolidated Plaintiffs Anthony Lorenti and Ashley Barrett filed a Second Amended Class Action Complaint, on behalf of themselves and those similarly situated, against GEICO Indemnity Co. The Plaintiffs all allege that the Defendants breached vehicle insurance contracts by failing to include title and license plate transfer fees in actual cash value payments the Defendants made after the insured suffered a total loss of the insured vehicle. Sullivan brings her claim against Government Employees based on the amount paid after her insured vehicle was declared a total loss. Both Jones and Cook bring claims against GEICO General for the total loss of insured vehicles. Lorenti and Barrett maintain claims against GEICO Indemnity. On Nov. 1, 2018, the Plaintiffs collectively moved for class certification, with Ms. Sullivan and Micah Bellamy as the putative class representatives for those with claims against Government Employees. The Plaintiffs subsequently filed two related motions: Intervenor Micah Bellamy's Motion to Intervene and a Motion to Substitute Micah Bellamy as Named Plaintiff in Place of Elizabeth Sullivan. In the Motion to Intervene, Mr. Bellamy seeks to become a named Plaintiff in the case. He alleges that he is a member of the putative class of persons with claims against Government Employees. The counsel for the Plaintiffs represent in the motion that Ms. Sullivan no longer wishes to serve as a potential class representative and they submitted a declaration from Ms. Sullivan to that effect. In the declaration, Ms. Sullivan avers that she no longer wishes to serve as the class representative because the accident resulting in the total loss of her insured vehicle resulted in the death of her husband. She requests that the Court substitutes Mr. Bellamy in her stead. She wishes to remain a putative class member but seeks to be removed as a named Plaintiff. The Plaintiffs' counsel also submitted a declaration from the Plaintiffs' counsel, Jacob Phillips Esq., who states that Ms. Sullivan notified the counsel in or around September 2018 that she wished to be removed as the potential class representative. Attorney Phillips also states that Mr. Bellamy first contacted the Plaintiffs' counsel in or around September 2018. The counsel notified the Defendants on Oct. 5, 2018 of the Plaintiffs' intent to substitute Mr. Bellamy for Ms. Sullivan, stated Mr. Bellamy was available for deposition, and provided discovery responses for Mr. Bellamy. Finally, the Plaintiffs' counsel submitted a declaration from Mr. Bellamy, in which he avers that he is able and willing to prosecute the action individually and on behalf of the other insureds of Geico that have not been paid the tag and title fees owed to us in connection with our insured total loss vehicle payments. He states that he is engaged in investigating the claim, is involved in discovery, has provided responsive documents and interrogatory answers to the Defendants, and will be available for deposition in the same date ranges in which the Defendants were seeking to depose Ms. Sullivan. In the Motion to Substitute, the Plaintiffs request that Mr. Bellamy be substituted for Ms. Sullivan as a named Plaintiff, ask to file an amended complaint pursuant to Federal Rules of Civil Procedure 15 and 16 and ask the Court to amend the Case Management Scheduling Order ("CMSO") as necessary. The Defendants oppose both motions. In both opposition memoranda, the Defendants argue that the Plaintiffs' motions are untimely and that granting the relief that the Plaintiffs seek will cause undue prejudice to the Defendants. With both opposition memoranda, the Defendants included the Declaration of Kimberly Kochis, Esq., the counsel for the Defendants, as well as email correspondence between the counsel for the Plaintiffs and the counsel for the Defendants regarding the potential substitution of Mr. Bellamy for Ms. Sullivan. The Defendants argue, in the alternative, that if leave to amend to add Mr. Bellamy as a party is granted, they should be permitted to take discovery from Mr. Bellamy before they are required to respond to the class certification motion. They ask that the date for responding to that motion be extended to Dec. 17, 2018. Both the Motion to Substitute and the Motion to Intervene in substance seek the same relief -- to allow Mr. Bellamy to join the action as a named Plaintiff and the putative class representative. An order granting either motion would require the Court to permit the Plaintiffs leave to file a third amended complaint Magistrate Judge Spaulding finds that the Plaintiffs' proposed amendment to the complaint would not materially change the factual allegations of the complaint; it would only add allegations related to Mr. Bellamy's vehicle and related policy. The counsel for the Defendants are correct, however, that they should be permitted to take discovery from Mr. Bellamy before they are required to respond to the class certification motion. Finally, permitting Mr. Bellamy to be added as a Plaintiff will serve the interests of justice. I f Mr. Bellamy is added as a named Plaintiff, the Magistrate Judge can determine, in the first instance rather than awaiting filing of another class action complaint, whether certification of a class with Mr. Bellamy serving as the class representative for individuals with claims against Government Employees is warranted. Accordingly, she finds that leave to amend the complaint to add a party is appropriate. The Plaintiffs do not cite any authority supporting their request to allow Ms. Sullivan to withdraw as a named Plaintiff yet still remain a member of the putative class. The counsel for the Plaintiffs may voluntarily drop Ms. Sullivan as a named Plaintiff in the third amended complaint. If this occurs, the Magistrate makes no finding regarding whether Ms. Sullivan would remain a member of any class that may be certified. For these reasons, Magistrate Judge Spaulding granted in part and denied in part the Motion to Substitute. She ordered that the Plaintiffs will file, by Dec. 5, 2018, a third amended complaint as a separate document, adding only the claims of Mr. Bellamy as a named party and withdrawing claims of Ms. Sullivan and Mr. Santos (if they choose to do so). The Plaintiffs must also file and serve a revised motion for class certification by Dec. 5, 2018, solely to omit arguments that Ms. Sullivan would be a proper class representative. The deadline for the Defendants to respond to the Plaintiffs' revised motion for the class certification is extended up to and including Dec. 19, 2018. If the Plaintiffs are granted leave to file a reply to the response, the deadline for filing the reply, Jan. 2, 2019, is not extended. She further ordered that the Plaintiffs must serve by Dec. 7, 2018, Mr. Bellamy's verified responses to the Defendants' individual and nationwide interrogatories and produce all documents in his possession, custody or control responsive to the Defendants' requests for production of documents directed to the named Plaintiffs. Because there is no indication that Mr. Bellamy asserted any objections when he provided some discovery to the Defendants, he may not assert any objections now. The counsel for the Defendants must promptly confer with the counsel for the Plaintiffs to identify a date, time and place for Mr. Bellamy's deposition. If the attorneys cannot agree on a date, time and place to depose Mr. Bellamy, then by Dec. 11, 2018, the counsel will contact my courtroom deputy clerk, Edward Jackson, at 407/835-5809 to schedule a telephone conference during which she scheduled the deposition. Because the Plaintiffs will be permitted to amend their complaint to add Mr. Bellamy as a named Plaintiff, the alternative Motion to Intervene is denied as moot. A full-text copy of the Court's Nov. 30, 2018 Order is available at https://bit.ly/2rv6Im0 from Leagle.com. Elizabeth Sullivan, as Personal Representative and on behalf of the Estate of Kailyn Jones,Individually and on behalf of all others similarly situated, Maurice Jones, as Personal Representative and on behalf of the Estate of Kailyn Jones, Individually and on behalf of all others similarly situated & Anthony C. Cook, on behalf of themselves and all others similarly situated, Plaintiffs, represented by Bradley W. Pratt -- bradley@prattclay.com -- Pratt Clay, LLC, Christopher B. Hall -- chall@hallandlampros.com -- Hall & Lampros, pro hac vice, Christopher J. Lynch -- clynch@hunterlynchlaw.com -- Christopher J. Lynch, P.A, Edmund A. Normand -- Ed@EdNormand.com -- Normand Law, PLLC, Tracy Lynne Markham -- tlm@avoliohanlonfl.com -- Avolio & Hanlon, PC & Jacob Lawrence Phillips -- jacob@ednormand.com -- Normand PLLC. Anthony Lorenti, individually and on behalf of all others similarly situated & Ashley Barrett, individually and on behalf of all others similarly situated, Consol Plaintiffs, represented by Bradley W. Pratt, Pratt Clay, LLC, Christopher B. Hall, Hall & Lampros, pro hac vice, Christopher J. Lynch, Christopher J. Lynch, P.A, Edmund A. Normand, Normand Law, PLLC, Jacob Lawrence Phillips, Normand PLLC, Peter Andrew Lampros, Hall & Lampros, pro hac vice & Tracy Lynne Markham, Avolio & Hanlon, PC. Government Employees Insurance Company, a foreign corporation & Geico General Insurance Company, a foreign corporation, Defendants, represented by Alexander Fuchs -- alexfuchs@eversheds-sutherland.com -- Eversheds Sutherland LLP, pro hac vice, Amelia Toy Rudolph, Eversheds Sutherland (US) LLP, Kymberly Kochis -- kymberlykockis@eversheds-sutherland.com -- Eversheds Sutherland LLP, pro hac vice & Susan Banks Harwood -- SusanHarwood@kaplanzeena.com -- Kaplan Zeena LLP. Geico Indemnity Company, Consol Defendant, represented by Alexander Fuchs, Eversheds Sutherland LLP, Amelia Toy Rudolph, Eversheds Sutherland (US) LLP, Kymberly Kochis, Eversheds Sutherland LLP & Susan Banks Harwood, Kaplan Zeena LLP. Mr. Micah Bellamy, Movant, represented by Edmund A. Normand, Normand Law, PLLC & Jacob Lawrence Phillips, Normand PLLC. GRUBHUB INC: Court Rules on Lawson's Bid for Relief from Judgment ----------------------------------------------------------------- In the case, RAEF LAWSON, Plaintiff, v. GRUBHUB, INC., et al., Defendants, Case No. 15-cv-05128-JSC (N.D. Cal.), Magistrate Judge Jacqueline Scott Corley of the U.S. District Court for the Northern District of California indicated that the Plaintiff's Rule 60(b)(6) request for relief from the Feb. 8, 2018 judgment in Grubhub's favor raises a substantial issue. Following a bench trial, the Court found that Grubhub properly classified Lawson as an independent contractor and entered judgment on Feb. 8, 2018 in Grubhub's favor. Now pending before the Court is the Plaintiff's motion for an indicative ruling pursuant to Federal Rule of Civil Procedure 62.1(a). The Plaintiff asks the Court to indicate that it would grant Plaintiff's Rule 60(b)(6) request for relief from judgment, or at least indicate that the request raises a substantial question. After carefully considering the issues, and having had the benefit of oral argument, the Court declines to definitively rule that it would vacate the judgment, but the motion does raise a substantial issue. The lawsuit began when San Francisco Grubhub driver Andrew Tan filed a putative wage and hour class action in California state court. Grubhub removed the action to the Court pursuant to the Class Action Fairness Act. Shortly thereafter, Mr. Tan filed a First Amended Complaint that added Mr. Lawson as a Plaintiff and the proposed class representative, and as a co-plaintiff on the California Private Attorneys General Act ("PAGA") claim. Mr. Tan remained as a Plaintiff on the PAGA claim and no longer sought to represent the class. Following the dismissal of the First Amended Complaint with leave to amend the Plaintiff's minimum wage, overtime, PAGA, and UCL claims, the Plaintiffs filed a Second Amended Complaint with the same claims. Grubhub then moved to deny class certification, which the Court granted. Following that ruling, the parties agreed that the lawsuit would be prosecuted solely by Mr. Lawson on behalf of himself and as a PAGA representative. The parties subsequently stipulated to a bench trial, and to bifurcating the case into two phases: (1) phase one limited to Mr. Lawson's individual claims and whether he is an "aggrieved employee" under PAGA, and (2) assuming the Court finds he is an aggrieved employee, phase two would resolve the PAGA claim following additional discovery. The Court held a bench trial in September 2017 and following the parties' submission of proposed findings of fact and conclusions of law, heard closing arguments on Oct. 30, 2017. The Court applied the multi-factor test set forth in S.G. Borello & Sons, Inc. v. Department of Industrial Relations, which held that for the purpose of determining whether an employer can rebut a prima facie showing of employment, the most significant consideration is the employer's right to control work details. After considering all of the Borello factors as a whole in light of the trial record, the Court found that Grubhub satisfied its burden of showing that Mr. Lawson was properly classified as an independent contractor. On Feb. 8, 2018, the Court issued its findings of fact and conclusions of law required by Federal Rule of Civil Procedure 52(a). The Plaintiff timely appealed the judgment to the Ninth Circuit. The following month, the California Supreme Court decided Dynamex Operations West, Inc. v. Superior Court, which addressed the classification of workers for purposes of California wage orders. In particular, Dynamex held that the suffer or permit to work definition of "employ" in a particular wage order must be determined based upon the "ABC" test rather than the Borello test. Under the "ABC" test, for a worker to be properly classified as an independent contractor, the hiring entity must establish that the worker meets three independent criteria: (A) that the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact; and (B) that the worker performs work that is outside the usual course of the hiring entity's business; and (C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed. The Plaintiff subsequently moved the Ninth Circuit to remand the case to the Court in light of Dynamex. The Ninth Circuit denied their remand motion without prejudice to his renewing it in his opening brief. The Ninth Circuit also held that its denial was without prejudice to the Plaintiff filing a motion for limited remand accompanied by an indication that the district court is willing to entertain a post-judgment motion related to the arguments raised in the motion to remand. The Plaintiff's motion for indicative ruling pursuant to Federal Rule of Civil Procedure 62.1(a) is now before the Court. Magistrate Judge Corley concludes that the outcome of the Plaintiff's motion to vacate the judgment hinges on the application of Dynamex Operations W. v. Superior Court, to the wage order claims at this stage in the proceedings. If it does, she would likely revisit the judgment, at least as to the overtime and minimum wage claims. The answer to the retroactivity question, however, is complicated and she declines to definitively answer it on this record. Nonetheless, the Magistrate can and does say that the Plaintiff's motion raises a substantial issue. The Defendant's insistence that the Court should deny the Plaintiff's motion because judicial economy counsels in favor of the Ninth Circuit deciding the retroactivity question in the first instance is directed to the wrong court; that is an argument to make to the Ninth Circuit. Accordingly, pursuant to Federal Rule of Civil Procedure 62.1, Magistrate Judge Corley the Court indicated that the Plaintiff's Rule 60(b)(6) motion raises a substantial issue. The Order disposes of Docket No. 240. A full-text copy of the Court's Nov. 28, 2018 Order is available at https://is.gd/WfHPjS from Leagle.com. Raef Lawson, in his capacity as Private Attorney General Representative; individually and on behalf of all other simiarly situated individuals, Plaintiff, represented by Shannon Liss-Riordan -- sliss@llrlaw.com -- Lichten & Liss-Riordan, P.C. & Thomas Fowler, pro hac vice. Grubhub, Inc. & Grubhub Holdings Inc, Defendants, represented by Theodore J. Boutrous, Jr. -- tboutrous@gibsondunn.com -- Gibson Dunn & Crutcher LLP, Brandon J. Stoker -- bstoker@gibsondunn.com -- Gibson Dunn and Crutcher LLP, Dhananjay Saikrishna Manthripragada -- dmanthripragada@gibsondunn.com -- Gibson Dunn and Crutcher LLP, Justin Tyler Goodwin -- jgoodwin@willenken.com -- Gibson Dunn and Crutcher, Kevin Joseph Ring-Dowell -- Kevin.Ring-Dowell@jud.ca.gov -- Gibson, Dunn & Crutcher LLP, Megan M. Cooney -- mcooney@gibsondunn.com -- Gibson Dunn Crutcher LLP, Michele Leigh Maryott -- mmaryott@gibsondunn.com -- Gibson Dunn & Crutcher LLP & Theane Evangelis -- tevangelis@gibsondunn.com -- Gibson, Dunn & Crutcher LLP. Caviar, Inc., Interested Party, represented by Erin E. Meyer -- emeyer@keker.com -- Keker, Van Nest & Peters LLP. H & D ELECTRIC: Faces Magana Class Action in Cal. Super. Ct. ------------------------------------------------------------ A class action lawsuit has been filed against H & D Electric. The case is styled as Joel Magana and on behalf of all others similarly situated, Plaintiff v. H & D Electric, Does 1-100, Defendants, Case No. 34-2018-00245530-CU-OE-GDS (Cal. Super. Ct., Sacramento Cty., Nov. 29, 2018). H & D Electric, Inc. operates as a residential electrical contractor. It provides lighting and structured wiring services for single and multi-family projects.[BN] The Plaintiff is represented by Andrew Daniel Weaver, Esq. HEARTLAND PAYMENT: Torres & Martinez Can't Intervene in Edwards --------------------------------------------------------------- Judge Tricia Bigelow of the Court of Appeals of California for the Second District, Division Eight, affirmed the trial court's denial of Jaime Torres and Jorge Martinez's motion to intervene in the case, ROBIN EDWARDS et al., Plaintiffs and Respondents, v. HEARTLAND PAYMENT SYSTEMS, INC., Defendant and Respondent. JAIME TORRES et al., Interveners and Appellants, Case No. B284000 (Cal. App.). Heartland provides electronic processing services in California and employs sales-based employees to secure clients for those services. It was sued in three separate class action lawsuits for alleged wage and hour violations -- Edwards v. Heartland Payment Systems, Inc. (Super Ct. L.A. County, 2016, No. BC606083), Wilson v. Heartland Payment Systems, Inc. (Super Ct. L.A. County, 2016, No. PC056816); and Torres v. Heartland Payment Systems, Inc. (Super Ct. Orange County, 2016, No. 30-2016-00838951-CU-OE-CXC). The original complaints in Edwards and Wilson were filed on the same day -- Jan. 5, 2016. Edwards alleged he was a California-based Relationship Manager. It identified the putative class as "California-based Relationship Managers" who worked for Heartland within the prior four years, including two sub-classes of Relationship Managers who were not paid minimum wage for participating in new hire orientation and mandatory training sessions, and Relationship Managers who were not reimbursed for business expenses. The complaint alleged a host of violations of the Labor Code and Industrial Welfare Commission Wage Orders. Specifically, it asserted claims for failure to pay minimum wage, to pay wages upon termination, to provide accurate wage statements, and to reimburse employee expenses, as well as violations of Business and Professions Code section 17200, et seq. Prior to mediation, Edwards had served discovery on Heartland. The mediation was conducted on Nov. 1, 2016, and the Plaintiffs' counsel from all three cases was present. The Counsel in Torres claimed that the counsel in Edwards refused to speak with him or with the counsel in Wilson during the mediation. The Plaintiffs in Edwards and Heartland reached a settlement in principle and executed a memorandum of understanding. After the preliminary settlement was reached, Edwards propounded additional "confirmatory discovery" on Heartland. Heartland provided "formal and informal responses" to those requests. The complaint in Edwards was then amended twice after the settlement but before the Torres plaintiffs moved to intervene. Filed on March 14, 2017, the third amended complaint was the operative complaint when the Torres plaintiffs filed their motion. It basically brought the Edwards case in line with the allegations in Wilson and Torres. Suzanne Armstrong was named as a second plaintiff as a "sales-based employee" of Heartland. The proposed class was defined as all current and former sales-based employees, including those holding the positions of "Relationship Manager, Territory Manager, Sales Manager, Division Manager, and/or similar job titles," for the prior four years. Claims were added for meal and rest period violations, unlawful wage deductions, injunctive relief, declaratory relief, an accounting, and a violation of PAGA. And factual allegations were added to support the unreimbursed business expenses claim, identifying several of the alleged Heartland policies and practices mentioned in the Torres complaint. On April 27, 2017, the Torres plaintiffs filed their motion to intervene in Edwards. They argued for both mandatory and permissive intervention pursuant to Code of Civil Procedure section 387, subdivisions (a) and (b). Several days later on May 5, 2017, the Plaintiff's counsel in Edwards moved for preliminary approval of the settlement. The filing disclosed a proposed total settlement amount of $650,000 and a putative class of 581 members. Heartland's counsel later updated the number of proposed class members to 773. The Torres plaintiffs filed an opposition to the motion for preliminary approval of the settlement. The trial court denied the Torres plaintiffs' motion to intervene on May 24, 2017. It denied mandatory intervention because the Torres plaintiffs could "opt-out of or object to the settlement," and it noted that they had already objected. Further, it denied permissive intervention because a t this stage of the proceeding, the settlement has not been approved by the Court and thus the Torres plaintiffs' rights have not been detracted. Furthermore, if the settlement is approved, they will have the opportunity to challenge the release in the Edwards settlement by objecting to the settlement or may opt out of the settlement completely, such that their legal rights in the action are not hindered. The Torres plaintiffs timely appealed the court's order denying intervention. They contend the trial court erred in denying both mandatory and permissive intervention pursuant to Code of Civil Procedure section 387. Judge Bigelow finds no error under either provision. The trial court did not separately analyze the final element of inadequate representation, and she needs not address it. The Torres plaintiffs' failure to show their own ability to protect their interests would be practically impaired or impeded by the settlement defeats mandatory intervention. She also finds that the trial court did not abuse its discretion in denying permissive intervention. The trial court could have reasonably concluded that the Torres plaintiffs' reasons for intervening in light of their right to opt out or object to the settlement did not outweigh the objections by the other parties. They do not need to intervene to seek discovery; as objectors, they may seek discovery to ensure sufficient information has been provided to evaluate the fairness of the settlement. For these reasons, Judge Bigelow affirmed the order. Respondents Edwards and Heartland are awarded costs on appeal. The stay of proceedings previously imposed is lifted. A full-text copy of the Court's Nov. 30, 2018 Order is available at https://bit.ly/2QpgSDg from Leagle.com. Shanberg, Stafford & Bartz, Ross E. Shanberg and Aaron A. Bartz for Interveners and Appellants. Lawyers for Justice, Edwin Aiwazian -- edwin@lfjpc.com -- Arby Aiwazian -- arby@lfjpc.com -- and Joanna Ghosh -- joanna@lfjpc.com -- for Platintiffs and Respondents. Fisher & Phillips, Todd B. Scherwin -- tscherwin@fisherphillips.com -- Wendy McGuire Coats -- wcoats@fisherphillips.com -- and Shaun J. Voigt -- svoigt@fisherphillips.com -- for Defendant and Respondent. HH FRANCHISING: Class of In-Home Caregivers Certified in "Geiger" ----------------------------------------------------------------- The Hon. Frank D. Whitney grants in part and denies in part the Revised Motion to Conditionally Certify a Collective Action and Facilitate Notice under 29 U.S.C. Section 216(b) in the lawsuit entitled ROSEANN GEIGER and SHERRI HOLLEY, individually and on behalf of all others similarly situated v. H.H. FRANCHISING SYSTEMS, INC., d/b/a HOME HELPERS, a foreign corporation; GLENKAT, INC.; KATHLEEN HOLDEN, an individual; and GLENN HOLDEN, an individual, Case No. 3:17-cv-00738-FDW-DSC (W.D.N.C.). The original Plaintiffs' Motion for Conditional Certification and Judicial Notice under 29 U.S.C. Section 216(b) is denied as moot. The Court approves the issuance of a notice consistent with this Order and sets the deadline for opting into this action as February 9, 2019. The Court orders certain modifications to the Proposed Notice of Collective Action Lawsuit. The Modified Notice will be sent to: "All current and former in-home caregiver employees who regularly worked 24-hour shifts and/or who worked more than 40 hours per week, are/were employed by H.H. Franchising Systems, Inc. d/b/a Home Helpers; and/or Glenkat, Inc.; Kathleen Holden and Glenn Holden (collectively, "Defendants") in North Carolina from December 24, 2014[,] to the present." The Court also declines to grant Plaintiff's request to send additional notices or subsequent notices. The Court sua sponte modifies only these deadlines: a. Discovery Completion - March 27, 2019; b. ADR - April 13, 2019; and c. Dispositive Motions (filed) - April 27, 2019.[CC] HSBC FINANCE: Lewis Sues Over Erroneous Credit Reports ------------------------------------------------------ Charissa Lewis, on behalf of herself, and on all others similarly situated v. HSBC Finance Corporation fka Household Financial Corporation, Case No. 3:18-cv-02605 (S.D. Calif., November 14, 2018), seeks damages for the Defendant's violation of the California Credit Reporting Agencies Act. The Plaintiff brings this Complaint for damages arising out of the systematic issuance of erroneous credit reports by the Defendant. The Defendant has erroneously reported continual monthly payment obligations on accounts that have been closed and paid in full. The Plaintiff is a natural person who resides in the City of San Diego, County of San Diego, in the State of California. The Defendant is a Delaware corporation with its principal place of business located in Illinois. [BN] The Plaintiff is represented by: Yana A. Hart, Esq. HYDE & SWIGART, APC 2221 Camino Del Rio South, Suite 101 San Diego, CA 92108-3609 Tel: (619) 233-7770 Fax: (619) 297-1022 E-mail: yana@westcoastlitigation.com - and - Daniel G. Shay, Esq. LAW OFFICE OF DANIEL G. SHAY 409 Camino Del Rio South, Suite 101B San Diego, CA 92108 Tel: (619) 222-7429 Fax: (866) 431-3292 E-mail: danielshay@tcpafdcpa.com HUNTER WARFIELD: Nimmer Moves to Certify Class Under Damasco ------------------------------------------------------------ Kristine Nimmer moves the Court to certify the class described in the complaint of the lawsuit entitled KRISTINE NIMMER, Individually and on Behalf of All Others Similarly Situated v. HUNTER WARFIELD OF NEW ENGLAND, INC., Case No. 2:18-cv-01859-NJ (E.D. Wisc.), and further asks that the Court both stay the motion for class certification and to grant the Plaintiff (and the Defendant) relief from the Local Rules setting automatic briefing schedules and requiring briefs and supporting material to be filed with the Motion. Dicta in the Supreme Court's decision in Campbell-Ewald Co. v. Gomez, left open the possibility that a defendant facing a class action complaint could moot a class representative's case by depositing funds equal to or in excess of the maximum value of the plaintiff's individual claim with the court and having the court enter judgment in the plaintiff's favor prior to the filing of a class certification motion, the Plaintiff asserts, citing Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016). To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion. Damasco v. Clearwire Corp., 662 F.3d 891, 896 (7th Cir. 2011), overruled on other grounds, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015) ("The pendency of that motion [for class certification] protects a putative class from attempts to buy off the named plaintiffs."). While the Seventh Circuit has held that the specific procedure described in Campbell-Ewald cannot force the individual settlement of a class representative's claims, the same decision cautions that other methods may prevent a plaintiff from representing a class, the Plaintiff tells the Court, citing Fulton Dental, LLC v. Bisco, Inc., No. 16-3574, 2017 U.S. App. LEXIS 10839 *9-10 (7th Cir. June 20, 2017). The Plaintiff asserts that one defendant has attempted a similar tactic by sending a certified check to the proposed class representative. Bonin v. CBS Radio, Inc., No. 16-cv-674-CNC (E.D. Wis.); see also Severns v. Eastern Account Systems of Connecticut, Inc., Case No. 15-cv-1168, 2016 U.S. Dist. LEXIS 23164 (E.D. Wis. Feb. 24, 2016). The Plaintiff is obligated to move for class certification to protect the interests of the putative class, the Plaintiff contends. As the Motion to certify a class is a placeholder motion as described in Damasco, the parties and the Court should not be burdened with unnecessary paperwork and the resulting expense when short motion to certify and stay should suffice until an amended motion is filed, the Plaintiff contends. The Plaintiff also asks to be appointed as class representative, and for the appointment of Ademi & O'Reilly, LLP, as class counsel.[CC] The Plaintiff is represented by: Shpetim Ademi, Esq. John D. Blythin, Esq. Mark A. Eldridge, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482-8000 Facsimile: (414) 482-8001 E-mail: sademi@ademilaw.com jblythin@ademilaw.com meldridge@ademilaw.com ILLINOIS: Rauner Dismissed w/ Prejudice from Monroe Prisoners Suit ------------------------------------------------------------------ In the case, JANIAH MONROE, MARILYN MELENDEZ EBONY STAMPS, LYDIA HELENA VISION, SORA KUYKENDALL, and SASHA REED, Plaintiffs, v. BRUCE RAUNER, JOHN BALDWIN, STEVE MEEKS, and MELVIN HINTON, Defendants, Case No. 18-0156-DRH (S.D. Ill.), Judge David R. Herndon of the U.S. District Court for the Southern District of Illinois granted Defendant Rauner's motion to dismiss, and denied as moot the motion to stay discovery. Pending before the Court is a Nov. 9, 2018 Report and Recommendation recommending that the Court grants Defendant Rauner's motion to dismiss and denies as moot a motion to stay discovery. Specifically, the Report recommends that the Court grants the motion to dismiss, that Governor Rauner be dismissed with prejudice and the motion to stay discovery be denied as moot. On Nov. 20, 2018, the Plaintiffs filed objections to the Report. On Jan. 31, 2018, the named Plaintiffs filed suit against the Defendants. Ruaner is the current governor of Illinois, Meeks is the medical director for the Illinois Department of Corrections ("IDOC"), Hinton is the Chief of Mental Health Services for IDOC and Baldwin is the Acting Director of the IDOC. The Plaintiffs are prisoners in the custody of the IDOC. Represented by their counsel, they bring the civil rights action pursuant to 42 U.S.C. Section 1983, on behalf of themselves and other similarly situated inmates. The Plaintiffs are currently in various institutions both within and outside the Southern District of Illinois; those located in the District are Kuykendall (Menard Correctional Center), and Reed (Lawrence Correctional Center). The Plaintiffs identify themselves as transgender women, and have sought evaluation and/or treatment for gender dysphoria during their IDOC custody. They allege that the IDOC has denied and/or delayed evaluation and medically necessary treatment and accommodations for their gender dysphoria, causing them to suffer physical and psychological distress, including self-harm and suicide attempts. They contend that incarceration under these conditions violates their Eighth Amendment rights. They seek class action certification, and declaratory and injunctive relief. On Feb. 1, 2018, the undersigned conducted its review of the complaint under 28 U.S.C. Section 1915A and referred the matter to Magistrate Judge Donald G. Wilkerson. Thereafter on March 27, 2018, Rauner filed a motion to dismiss. In the motion, he argues that he should be dismissed from the case as he is not the proper party for carrying out any of the Plaintiffs' requested injunctive relief. Raunder maintains that the proper Defendants are the named IDOC officials who would have the responsibility for complying with any injunction that the Court may enter in the case. The Plaintiffs filed an opposition to the motion countering that Governor Rauner is a proper Defendant because he has the constitutional authority as the executive of the State of Illinois and the Plaintiffs allege that he bears responsibility for ensuring the provision of constitutionally adequate medical care for IDOC prisons. On Nov. 9, 2018, Magistrate Judge Wilkerson issued the Report finding that however, the person with authority to effect change already has been named in the suit, namely the Director of the IDOC. As such, the Complaint fails to set forth what the Governor could conceivably do to remedy the alleged constitutional violations above and beyond the other named parties. His inclusion in the lawsuit appears superfluous. The Plaintiffs object to the Report's recommendation that the motion to dismiss be granted, and to the extent that it is granted, that the dismissal should be without prejudice. In addition, the Plaintiffs reiterate their prior arguments countering the motion to dismiss. Judge Herndon rejects the Plaintiffs' objections and arguments. There are no allegations suggesting that Gov. Rauner personally participated in any decision to deny the Plaintiffs medical care or, for that matter, implemented any policy or custom, or practice that resulted in a constitutional deprivation. The Plaintiffs offer nothing more than conclusory allegations that Ruaner has been aware and are aware of all the deprivations complained of and have condoned or been deliberately indifferent to such conduct. They also offer no other allegations suggesting that Rauner was on notice that a particular policy, custom, or widespread practice resulted in the Plaintiffs' denial of care or that Rauner exhibited deliberate indifference toward them. Further, the Judge finds that the complaint does not establish that Rauner would have any involvement in carrying out any injunctive relief that is ultimately ordered. Thus, he grants the motion to dismiss. Accordingly, Judge Herndon adopted the Report, granted Defendant Rauner's motion to dismiss, and denied as moot the motion to stay discovery. He dismissed with prejudice Defendant Rauner. He directed the Clerk of the Court to enter judgment reflecting the same at the end of the case. A full-text copy of the Court's Nov. 30, 2018 Amended Memorandum and Order is available at https://bit.ly/2G9BLxR from Leagle.com. Janiah Monroe, Marilyn Melendez, Ebony Stamps, Lydia Helena Vision, Sora Kuykendall & Sasha Reed, Plaintiffs, represented by John A. Knight, Roger Baldwin Foundation of ACLU, Inc., Austin B. Stephenson -- austin.stephenson@kirkland.com -- Kirkland & Ellis LLP, Catherine L. Fitzpatrick -- catherine.fitzpatrick@kirkland.com -- Kirkland & Ellis LLP, Erica B. Zolner -- erica.zolner@kirkland.com -- Kirkland & Ellis LLP, Ghirlandi Guidetti, Roger Baldwin Foundation of ACLU, Inc., Megan M. New -- megan.new@kirkland.com -- Kirkland & Ellis LLP, Sarah Jane Hunt , Law Office of Thomas Kennedy, III, L.C., Scott H. Lerner -- scott.lerner@kirkland.com -- Kirkland & Ellis LLP, Sydney L. Schneider -- sydney.schneider@kirkland.com -- Kirkland & Ellis LLP, Thomas E. Kennedy, III , Law Offices of Thomas E. Kennedy, III, L.C. & Jordan M. Heinz -- jordan.heinz@kirkland.com -- Kirkland & Ellis LLP. Bruce Rauner, Defendant, represented by Christopher L. Higgerson , Illinois Attorney General's Office, Kyle Rockershousen, Office of the Attorney General & Lisa A. Cook, Office of the Attorney General. John Baldwin, Steve Meeks & Melvin Hinton, Defendants, represented by Christopher L. Higgerson, Illinois Attorney General's Office, Joseph E. Okon, Illinois Attorney General's Office, Kyle Rockershousen, Office of the Attorney General & Lisa A. Cook, Office of the Attorney General. JM SMUCKER: Submits Stipulation and Joint Case Management Order --------------------------------------------------------------- District Judge Haywood S. Gilliam, Jr. presents the class action stipulation and proposed joint case management order submitted by Plaintiff Shelly Robinson and Defendant The J.M. Smucker Company. The Class certification schedules are as follows: * Plaintiff's motion for class certification due -- Monday, April 30, 2019 * Defendant's response due -- Friday, June 14, 2019 * Plaintiff's reply due -- Monday, July 15, 2019 * Class certification hearing -- Thursday, August 1, 2019 After the Court issues a decision on class certification, the Court will schedule a conference with the Parties to discuss subsequent dispositive motion, pre-trial and trial deadlines. The case is SHELLY ROBINSON, individually and on behalf of all others similarly situated, Plaintiff, v. THE J.M. SMUCKER COMPANY, an Ohio corporation; and DOES 1 through 10, inclusive Defendants, Case No. 4:18-cv-04654-HSG (N.D. Cal.). A copy of the Stipulation dated Nov. 20, 2018 is available at https://bit.ly/2FZTGaa from Leagle.com. Shelly Robinson, individually and on behalf of all others similarly situated, Plaintiff, represented by Scott J. Ferrell -- sferrell@pacifictrialattorneys.com -- Pacific Trial Attorneys. J.M. Smucker Company, an Ohio corporation, Defendant, represented by Ronald Y. Rothstein – rrothstein@winston.com --Winston and Strawn LLP, pro hac vice, Crista N. Welch – cwelch@winston.com -- Winston and Strawn LLP & Megan Lee Whipp -- mwhipp@winston.com -- Winston and Strawn LLP. JULIAN SPENCE: Heberle Moves to Certify Class of DRIP Purchasers ---------------------------------------------------------------- The Plaintiff in the lawsuit titled KEVIN HEBERLE, individually and On behalf of others similar situated v. JULIAN SPENCE a/k/a JUVANE BRYAN SPENCE, Case No. 1:18-cv-02288 (N.D. Ill.), files his amended motion for certification of a class defined as: all purchasers of DRIP tokens from Defendant Spence. Excluded from the Class is: (1) Defendant, Defendant's agents, subsidiaries, parents, successors, predecessors, and any entity in which Defendant or its parents have a controlling interest, and those entities' current and former employees, officers, and directors; (2) the Judge to whom this case is assigned and the Judge's immediate family; (3) any person who executes and files a timely request for exclusion from the Class; (4) any person who has had their claims in this matter finally adjudicated and/or otherwise released; and (5) the legal representatives, successors and assigns of any such excluded person. The purported class action lawsuit seeks damages from the Defendant arising out of an alleged fraudulent "Initial Coin Offering" -- a transaction akin to an Initial Public Offering in which a new cryptocurrency is created and sold to investors to fund the issuing entity. The Plaintiff alleges that the Defendant concocted and manufactured a cryptocurrency, which he fraudulent represented held superior properties to the popular "Ripple" cryptocurrency. This cryptocurrency, named "Dark Ripple" or "DRIP" by the Defendant, was nothing more than an artifice to defraud the unwitting Class of investors, who purchased DRIP from the Defendant, the Plaintiff contends. The Plaintiff also seeks to be appointed as a representative of the Class and for the appointment of the Plaintiff's attorneys as counsel for the Class.[CC] The Plaintiff is represented by: Adam S. Tracy, Esq. THE TRACY FIRM, LTD. 141 W. Jackson Blvd., Suite 2172 Chicago, IL 60604 Telephone: (312) 754-9499 Facsimile: (630) 689-9471 E-mail: at@tracyfirm.com KENAN ADVANTAGE: Ballard Civil Rights Suit Removed to C.D. Calif. ----------------------------------------------------------------- The class action styled as Dwayne Ballard on behalf of himself and others similarly situated, Plaintiff v. The Kenan Advantage Group, Inc. a Delaware corporation, Does 1 through 50, inclusive, Defendants, Case No. 18STCV01633 was removed from Los Angeles County Superior Court, to the U.S. District Court for the Central District of California on November 29, 2018, and assigned Case No. 2:18-cv-09990-SJO-GJS. The nature of suit is stated as Jobs Civil Rights and asserts Employment Discrimination. The Kenan Advantage Group, Inc. and its subsidiaries provide transportation services for petroleum-based products in the United States. It delivers refined petroleum products, such as gasoline, diesel, and aviation fuels.[BN] The Plaintiff is represented by: Alexandria R Kachadoorian, Esq. CounselOne PC 9301 Wilshire Boulevard Suite 650 Beverly Hills, CA 90210 Phone: (310) 277-9945 Fax: (424) 277-3727 Email: alexandria@counselonegroup.com - and - Anthony J Orshansky CounselOne PC 9301 Wilshire Boulevard Suite 650 Beverly Hills, CA 90210 Phone:(310) 277-9945 Fax: (424) 277-3727 Email: anthony@counselonegroup.com - and – Justin K Kachadoorian, Esq. CounselOne PC 9301 Wilshire Boulevard Suite 650 Beverly Hills, CA 90210 Phone: (310) 277-9945 Fax: (424) 277-3727 Email: justin@counselonegroup.com The Defendants are represented by: Katherine Consuelo Huibonhoa, Esq. Grube Brown and Geidt LLP 601 Montgomery Street Suite 1150 San Francisco, CA 94111 Phone: (415) 603-5008 Fax: (415) 840-7210 Email: khuibonhoa@chjllp.com - and - Stephen N Yang Curley Hurtgen and Johnsrud LLP 4400 Bohannon Drive Suite 230 Menlo Park, CA 94025 Phone: (650) 600-5306 Email: syang@chjllp.com L.P.C.C. RESTAURANT: Weng Sues over Unpaid Wages, Tip-Pooling ------------------------------------------------------------- Sheng Juan Weng, on behalf of himself and others similarly situated Plaintiff, v. L.P.C.C. RESTAURANT, LLC. d/b/a Shogun Legends, and Ai Fen Chen, the Defendants, Case 3:18-cv-16462 (D.N.J., Nov. 27, 2018), seeks to recover unpaid minimum wages, unpaid overtime wages, unlawful tips retentions, liquidated damages, prejudgment and post-judgment interest; and/or attorneys' fees and costs under the Federal Labor Standards Act, and the New Jersey State Wage and Hour Law. According to the complaint, the Defendants have willfully and intentionally committed widespread violations of the FLSA and NJWHL by engaging in a pattern and practice of failing to pay its employees, including Plaintiff, minimum wage and overtime compensation for all hours worked over 40 each workweek. The Defendants also engaged in unlawful tip-pooling, requiring tipped-employees, including Plaintiff, to share their tips with employees who do not regularly and customarily receive tips, for instance, the manager of Defendants' restaurant, the lawsuit says. The Defendant operates a restaurant under the trade name Shogun Legends and is a business engaged in interstate commerce that has gross sales in excess of $500,000 per year.[BN] Attorneys for the Plaintiff and proposed FLSA Collective: Xiaoxi LIU, Esq. HANG AND ASSOCIATES, PLLC 136-20 38 th Ave. Suite 10G Flushing, NY 11354 Telephone: (718) 353-8588 Facsimile: (718) 353-6288 E-mail: xliu@hanglaw.com LUCAS CONSTRUCTION: Polanco Sues Over Unpaid Overtime Wages ----------------------------------------------------------- Joseph Polanco, and similarly situated individuals, Plaintiff, v. Lucas Construction Group, Inc., and all other affiliated Entities and/or Joint Employers, Lionel Lucas, individually, and Anthony Lucas, individually, Defendants, Case No. 3:18-cv-17036-AET-DEA (D. N.J., December 10, 2018) brought this lawsuit seeking recovery against Defendants for Defendants' violation of the Fair Labor Standards Act, the New Jersey State Wage and Hour Law, and the New Jersey State Prevailing Wage Act. This is a case action brought on behalf of Plaintiff and a putative class of individuals who worked as laborers, and in other construction related trades for Lucas and/or any other entities affiliated with, controlling, or controlled by Lucas or Lucas Defendants, to recover statutory wage and overtime payments, payment for unpaid supplemental benefits that Plaintiff and the members of the putative class were statutorily and contractually entitled to receive for work they performed on numerous privately financed projects and publicly financed projects pursuant to contracts with various government entities. The Government Entities include but are not limited to the following: Middletown, Monmouth County. Beginning in or about 2012, the Lucas Defendants entered into a number of Public Works Contracts to perform, inter alia road and bridge construction, drainage work, pilings, and other related construction, and other related construction work with the Government Entities, or prime contractors, at the sites of the Public Works Projects. A schedule of prevailing rates of wages and supplemental benefits to be paid was annexed to and was made a part of each contract. This promise to pay and ensure payment of the prevailing wage and supplemental benefit rates in the contracts between Lucas, and the individual Defendants, and the Government Entities and/or the prime contractors of record was made for the benefit of all workers furnishing labor on the sites of the Public Works Projects and, as such, the workers furnishing labor on the sites of the Public Works Projects are the beneficiaries of that promise. Based upon the information preliminarily available, and subject to discovery in this cause, the Defendant did not properly compensate Plaintiff, and those similarly situated employees, for overtime hours worked in a work week. Plaintiff, were also deprived of pay for those hours worked in excess of 40 in a workweek. The Defendants have engaged in a widespread pattern, policy, and practice of violating the FLSA, NJWHL, and NJPWA as described in this complaint. Plaintiff Polanco is an adult individual who is a resident of Plainfield, Middlesex County, New Jersey. Plaintiff Polanco was employed by Defendants full time as a laborer, performing construction duties, from in or about the end of February 2016, through in or about mid July 2018. Lucas Defendants own and/or maintain construction business throughout the State of New Jersey. Defendant is headquartered in Tinton Falls, Monmouth County, New Jersey. Lionel Lucas is a New Jersey state resident. Lucas was and is an employer engaged in commerce under the Fair Labor Standards Act. Defendant Lionel Lucas has had power over personnel decisions at the Defendant Lucas's business. Anthony Lucas is a New Jersey state resident. Individual Defendant Anthony Lucas has been an owner, partner, officer and/or manager of the Defendant Lucas.[BN] The Plaintiffs is represented by: Andrew I. Glenn, Esq. Jodi J. Jaffe, Esq. JAFFE GLENN LAW GROUP, P.A. 301 N. Harrison Street, Suite 9F, #306 Princeton, NJ 08540 Phone: (201) 687-9977 Facsimile: (201) 595-0308 Email: Jjaffe@JaffeGlenn.com Aglenn@JaffeGlenn.com MANU INC: Tenesaca Seeks Minimum Wage & Overtime Pay ---------------------------------------------------- JORGE A TENESACA, individually and on behalf of others similarly situated, the Plaintiff, vs. MANU INC. (D/B/A I TRE MERLI), ITM GARDEN INC. (F/D/B/A REVEL), PAOLO SECONDO, EMANUELA COSTA, DENIS LABRAMOWITZ, PETER DOE, ANA DOE, and MARY DOE, the Defendants, Case No. 1:18-cv-11068 (S.D.N.Y., Nov. 27, 2018), seeks minimum wage and overtime compensation under the Fair Labor Standards Act and New York Labor Law. According to the complaint, the Defendants own, operate, or control an Italian restaurant, located at 10-12 Little West 12th street, New York, NY 10014 under the name "I Tre Merli f/d/b/a Revel". The Plaintiff was employed as a barback at the restaurant. However, he was required to spend a considerable part of his workday performing non-tipped duties, including but not limited to bartending, bringing merchandise from and to the basement, stocking and restocking newly arrived merchandise in the basement, doing the liquor and merchandise inventory for the restaurant, bringing alcohol to the restaurant from the basement, unloading deliveries, taking out trash, washing dishes and glasses, going to the neighbor's business to get ice, purchasing liquor at the liquor store 5 blocks away, purchasing beet with the owner at a business that was 20 blocks away once or twice a month, requesting carbon dioxide from the neighbors once every two weeks, requesting liquor from the neighbors every weekend and returning carbon dioxide to the neighbors every two weeks (non-tipped duties). The Plaintiff worked for Defendants in excess of 40 hours per week, without appropriate minimum wage, overtime, and spread of hours compensation for the hours that he worked, the lawsuit says.[BN] Attorneys for Plaintiffs: 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 E-mail: faillace@employmentcompliance.com MDL 2391: Court Denies Bid to Vacate Remand Order for 3 Actions --------------------------------------------------------------- In the case, IN RE: BIOMET M2A MAGNUM HIP IMPLANT PRODUCTS LIABILITY LITIGATION, MDL No. 2391, Judge Sarah S. Vance of the U.S. Judicial Panel on Multidistrict Litigation has denied the Defendants' motion to vacate the Panel's order, which conditionally remanded three actions to their respective transferor districts. The three actions are: * CHADWICK v. BIOMET ORTHOPEDICS, INC., ET AL., C.A. No. 3:12-00614; * CARTER v. BIOMET, INC., ET AL., C.A. No. 3:13-00256; and * RICHARDS v. BIOMET ORTHOPEDICS LLC, ET AL., C.A. No. 3:14-00612. Defendants in the three actions move under Panel Rule 10.2 to vacate the Panel's order that conditionally remanded the actions listed on Schedule A to their respective transferor districts. Defendants request that, instead of sending these cases to their originating courts, the Panel instead send the actions to districts in which venue is purportedly proper. Defendants request that actions be remanded to: (1) the District of Wyoming with respect to the Chadwick action (which was originally brought in the District of New Jersey); (2) the Eastern District of Virginia with respect to the Carter action (which was brought in the Southern District of New York); and (3) the Northern District of Texas with respect to the Richards action (which was brought in the Southern District of Texas). Plaintiffs did not respond to the motion. The Panel placed these actions on a conditional remand order after receiving the transferee judge's suggestion of remand. Each action now before the Panel was conditionally remanded to the district in which it was filed or removed to from state court. Defendants now suggest that the Panel redirect the remands to three non-originating courts. After considering all argument of counsel, the Panel finds that Section 1407(a) requires it to remand these three actions to their respective transferor courts. Defendants' request is a matter of first impression. Defendants argue that the parties can waive the right to return to their originating court, akin to what parties often do in the transferee court by waiving their Lexecon objections. "We are not persuaded by this argument," Judge Vance held, saying the parties' waiver of objections to Section 1407 remand does not imbue the Panel with the power to send their cases wherever the parties agree. While parties often waive Lexecon rights for a given case to remain in the transferee court for trial, once the Section 1407 remand process is initiated, the statute unambiguously requires the Panel to return a transferred action to the district from whence it came. Under Section 1407(a), "[e]ach action so transferred shall be remanded by the panel at or before the conclusion of such pretrial proceedings to the district from which it was transferred unless it shall have been previously terminated[.]" As the transferee judge noted in his suggestion of remand, the Panel is without authority to "redirect the remand" to a different, non-originating court. Instead, any motion for change of venue must be made to the original transferor court following Section 1407 remand." While the parties may view this process as cumbersome, since they agree that venue is proper in the proposed, non-originating districts, the clear terms of the statute afford the Panel no discretion as to where a transferred case must be remanded: the only destination allowed by Section 1407(a)is the "district from which it was transferred." For these reasons, Judge Vance ordered that, pursuant to 28 U.S.C. Sec. 1407, the Defendants' motion to vacate the conditional remand order is DENIED, and the three actions, as listed on Schedule A, are remanded to their respective transferor courts. A full-text copy of the Court's December 6, 2018 Remand Order is available at https://bit.ly/2EsrRp5 MDL 2437: Court Transfers Home Depot Suit to N.D. Georgia --------------------------------------------------------- In the case, IN RE: DOMESTIC DRYWALL ANTITRUST LITIGATION, MDL No. 2437, Judge Sarah S. Vance of the U.S. Judicial Panel on Multidistrict Litigation has entered an order transferring the action styled HOME DEPOT U.S.A., INC. v. LAFARGE NORTH AMERICA INC.,C.A. No. 1:18-cv-02839 from the Northern District of Georgia to the Eastern District of Pennsylvania and, with the consent of that court, assigned the action to the Honorable Michael M. Baylson for inclusion in the coordinated or consolidated pretrial proceedings. Plaintiff moves under Panel Rule 7.1 to vacate the Panel's order conditionally transferring the Home Depot action to the Eastern District of Pennsylvania for inclusion in MDL No. 2437. Defendant Lafarge North America Inc. opposes the motion and supports transfer. After considering the argument of counsel, Judge Vance concludes that this action shares questions of fact with the actions transferred to MDL No. 2437 and that transfer under 28 U.S.C. Sec. 1407 will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation. Plaintiff does not dispute that its action shares questions of fact with MDL No. 2437. Like many of the already-centralized actions, Home Depot involves factual questions arising from an alleged conspiracy to fix the price of drywall products sold in the United States. The transferee court has presided over substantial discovery and expert testimony, and issued significant pretrial rulings on discovery disputes and dispositive motions. These common pretrial proceedings in the MDL 1undoubtedlywill serve the just and efficient conduct of the Home Depot action. In opposing transfer, plaintiff contends that the litigation in MDL No. 2437 is too far advanced for this action to benefit from transfer. Plaintiff asserts that discovery is complete, all actions but one have settled, and thus there allegedly are no efficiencies to be gained from transfer. Plaintiff further contends that Home Depot can benefit from the work completed in the MDL by, for example, making use of the common discovery taken in the MDL. Defendant Lafarge points out that Home Depot will involve discovery with respect to competitively sensitive information already subject to protective orders in the MDL and that significant pretrial motions relevant to the Home Depot claims against Lafarge remain pending. On this record, the Judge concludes that, while the MDL undoubtedly is at an advanced stage, transfer of Home Depot is appropriate. Whether the continued inclusion of tag-along actions is appropriate is based upon a review of the status of the MDL proceedings and an assessment of the relative merits of transferring additional cases. Her review of the record leads her to conclude that transfer of Home Depot would serve the efficient resolution of this litigation. The transferee judge has overseen substantial pretrial proceedings concerning the alleged conspiracy in MDL No. 2437 since 2013, including significant rulings on dispositive motions and discovery disputes. Thus, he remains in the best position to streamline discovery and motions practice in the new action in light of the discovery and motions practice that have been completed. He also can ensure the just and efficient resolution of common motions concerning defendant Lafarge, the alleged coconspirators, and other nonparties with relevant information. Home Depot's further contention that transfer would be inconvenient for Home Depot and its witnesses is unavailing. The Panel looks to "the overall convenience of the parties and witnesses, not just those of a single plaintiff or defendant in isolation." Judge Vance therefore transferred the action to the Eastern District of Pennsylvania and, with the consent of that court, assigned the action to the Honorable Michael M. Baylson for inclusion in the coordinated or consolidated pretrial proceedings. A full-text copy of the Court's December 6, 2018 Transfer Order is available at https://bit.ly/2LaLq5S MDL 2672: $48MM Settlement in Clean Diesel Suit Has Prelim Approval ------------------------------------------------------------------- In the case, IN RE: VOLKSWAGEN "CLEAN DIESEL" MARKETING, SALES PRACTICES, AND PRODUCTS LIABILITY LITIGATION. This Order Relates To: City of St. Clair Shores, 15-6167 Travalio, 15-6168 George Leon Family Trust, 15-6168 Charter Twp. of Clinton, 16-190 Wolfenbarger, 16-184, MDL No. 2672 CRB (JSC) (N.D. Cal.), Judge Charles R. Breyer of the U.S. District Court for the Northern District of California granted the parties' motion for preliminary approval of the settlement. Among the lawsuits in the multidistrict litigation is a consolidated class action brought by investors in Volkswagen-sponsored American Depository Receipts ("ADRs"). These investors contend that VWAG, related corporate entities, and members of management violated federal securities laws by making false and misleading statements about Volkswagen's financial condition, regulatory compliance, and commitment to producing environmentally friendly cars. For much of the last year, the parties have been engaged in discovery. They have now agreed to settle, and a motion for preliminary approval of the settlement is before the Court. Judge Breyer finds that the Plaintiffs have satisfied the Rule 23(a) and (b)(3) requirements. He therefore conditionally certified the proposed class for settlement purposes. He also appointed ASHERS and Miami Police as the class representatives and James A. Harrod of Bernstein Litowitz Berger & Grossmann LLP as the class counsel. Having conditionally certified the class, the Judge continues by considering the settlement's terms and by evaluating whether the settlement warrants preliminary approval. The agreement, if approved, will require VWAG to contribute $48 million to a settlement fund. Before distribution, the fund will be used to pay the Plaintiffs' attorneys' fees and litigation expenses, notice and administration costs, taxes, and any other costs or fees approved by the Court. The remaining balance will be distributed to the class members who submit timely and valid claims to the claims administrator. If the class members do not cash their distribution checks, and if follow-on distributions are unsuccessful or not cost effective, any remaining funds will be given to the Investor Protection Trust, a nonprofit organization dedicated to investor education, as a cy pres recipient. The class counsel will file a motion for attorneys' fees and litigation expenses before the final fairness hearing. The class counsel has agreed to limit the request for reimbursement of litigation expenses to no more than $500,000, and to limit the request for attorneys' fees to 25% of the settlement fund, net of litigation expenses. The class counsel also intends to seek an award for the two class representatives, in an amount not to exceed a total of $50,000, to reimburse them for their time and expenses in representing the class. The award will also be deducted from the settlement fund. The settlement class consists of all persons and entities in the U.S. or elsewhere who purchased or otherwise acquired VWAG Ordinary American Depositary Receipts (CUSIP: 928662303) and/or VWAG Preferred American Depositary Receipts (CUSIP: 928662402) from Nov. 19, 2010 through Jan. 4, 2016, inclusive, and who were allegedly damaged thereby. The settlement funds will be allocated on a pro rata basis based on a comparison of the relative size of each claimant's recognized claim. The value of each recognized claim is the product of several calculations. Judge Breyer granted the Plaintiffs' motion for preliminary approval of the class settlement. The claims administrator will commence mailing the notice and claims form to potential settlement class members by Dec. 19, 2018 in accordance with the method of notice set forth in the motion for preliminary approval and in the Order. The summary notice will be published by Jan. 4, 2019. The class members will submit their objections or requests for exclusion by April 18, 2019 in the manner set forth in the settlement. The eligible class members will submit claims forms as required by the settlement by April 18, 2019. On April 5, 2019, the class counsel will file a motion for final approval of the settlement and a motion for approval of the attorneys' fees and the litigation expenses. The deadline for any reply papers is May 3, 2019. The Court will hold a fairness hearing on May 10, 2019 at 10:00 a.m. The deadline for class members to file a notice of intent to appear at the fairness hearing is April 26, 2019. A full-text copy of the Court's Nov. 28, 2018 Order is available at https://is.gd/vpn2Vu from Leagle.com. Nicholas Benipayo, Plaintiff, represented by Robert B. Carey -- rob@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, pro hac vice, Steve W. Berman -- steve@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, pro hac vice & Thomas Eric Loeser -- toml@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, pro hac vice. David Fiol, Plaintiff, represented by William M. Audet, Audet & Partners, LLP, Jeff D. Friedman, Hagens Berman Sobol Shapiro LLP, Peter B. Fredman -- peter@peterfredmanlaw.com -- Law Office of Peter Fredman, Robert B. Carey, Hagens Berman Sobol Shapiro LLP, pro hac vice, Steve W. Berman, Hagens Berman Sobol Shapiro LLP, pro hac vice & Thomas Eric Loeser, Hagens Berman Sobol Shapiro LLP, pro hac vice. Nadine Bonda, Plaintiff, represented by Adam M. Stewart -- astewart@shulaw.com -- Shapiro Haber & Urmy LLP & Thomas G. Shapiro -- tshapiro@shulaw.com -- Shapiro Haber and Urmy, LLP. Brian Connelly, Plaintiff, represented by Thomas G. Shapiro. Nicholas Allen, Plaintiff, represented by Caleb Marker -- caleb.marker@zimmreed.com -- Zimmerman Reed LLP, pro hac vice & Charles S. Zimmerman -- charles.zimmerman@zimmreed.com -- Zimmerman Reed, PLLP, pro hac vice. Brett Alters, Plaintiff, represented by Elizabeth J. Cabraser, Lieff Cabraser Heimann & Bernstein, LLP, David S. Stellings, Lieff Cabraser Heimann and Bernstein, Kevin R. Budner, Lieff, Cabraser, Heimann and Bernstein, LLP, Nicholas Diamand, Lieff Cabraser Heimann and Bernstein LLP, Phong-Chau Gia Nguyen, Lieff Cabraser Heimann & Bernstein, LLP, Tana Lin -- tlin@kellerrohrback.com -- Keller Rohrback LLP & Todd A. Walburg, Lieff, Cabraser, Heimann, Bernstein. Donald Ardine, Plaintiff, represented by Amy Williams-Derry -- awilliams-derry@kellerrohrback.com -- Keller Rohrback L.L.P., Dean Noburu Kawamoto -- dkawamoto@kellerrohrback.com -- Keller Rohrback LLP, Derek William Loeser -- dloeser@kellerrohrback.com -- Keller Rohrback, LLP, Gretchen Freeman Cappio -- gcappio@kellerrohrback.com -- Keller Rohrback, LLP, pro hac vice, Lynn L. Sarko -- lsarko@kellerrohrback.com -- Keller Rohrback L.L.P., pro hac vice & Tana Lin, Keller Rohrback LLP. Annie Argento, Plaintiff, represented by Amy Williams-Derry, Keller Rohrback L.L.P., Dean Noburu Kawamoto, Keller Rohrback LLP, Derek William Loeser, Keller Rohrback, LLP, Gretchen Freeman Cappio, Keller Rohrback, LLP, pro hac vice, Lynn L. Sarko, Keller Rohrback L.L.P., pro hac vice & Tana Lin, Keller Rohrback LLP. Arkansas State Highway Employees Retirement System, Plaintiff, represented by Jai K. Chandrasekhar -- jai@blbglaw.com -- Bernstein Litowitz Berger Grossmann LLP, pro hac vice, James A. Harrod -- jim.harrod@blbglaw.com -- Bernstein Litowitz Berger Grossmann LLP, Matthew I. Henzi -- mhenzi@swappc.com -- Sullivan, War, Niki L. Mendoza, Bernstein Litowitz Berger & Grossmann LLP, Ross M. Shikowitz -- ross@blbglaw.com -- Bernstein Litowitz Berger Grossmann LLP, pro hac vice & Susan Rebbeca Podolsky, The Law Offices of Susan R. Podolsky. Volkswagen Group of America, Inc., Defendant, represented by Amie Adelia Vague -- avague@lightfootlaw.com -- Lightfoot Franklin & White, Casey Erin Lucier -- clucier@mcguirewoods.com -- McGuireWoods LLP, Charles J. Baker, III -- cbaker@wcsr.com -- Womble Carlyle Sandridge and Rice, Colin Hampton Tucker -- chtucker@rhodesokla.com -- Rhodes Hieronymus Jones Tucker & Gable, Dana Woodrum Lang -- wlang@wcsr.com -- Womble Carlyle Sandridge and Rice, David M. Eisenberg, Baker, Sterchi, Cowden & Rice, LLC, Elizabeth L. Deeley -- elizabeth.deeley@kirkland.com - - Kirkland & Ellis LLP, Henry Buist Smythe, Jr., Womble Carlyle Sandridge and Rice, Howard Feller, McGuireWoods LLP, Hugh J. Bode, Reminger & Reminger Co LPA, J. Randolph Bibb, Jr., Lewis, Thomason, King, Krieg & Waldrop, P.C., James K. Toohey, Johns & Bell LTD, Jeffrey L. Chase, Chase Kurshan Herzfeld & Rufin LLC, Jeffrey S. Rugg, Brownstein Hyatt Farber Schreck, LLP, Jennifer Marino Thibodaux, Gibbons PC, John W. Cowden, Baker, Sterchi, Cowden & Ric, LLC-KCMO, John W. Cowden, Baker Sterchi Cowden and Rice LLC, John L. Hone, Lipshultz and Hone Chtd, John H. Tucker, Rhodes Hieronymus Jones Tucker & Gable, Kerry R. Lewis, Rhodes Hieronymus Jones Tucker & Gable, Kurt E. Lindquist, II, Womble Carlyle Sandridge & Rice, PLLC, Larry Martin Roth, Rumberger, Kirk & Caldwell, PA, Michael D. Begey, Rumberger, Kirk & Caldwell, PA, Michael R. McDonald, Gibbons PC, Natalie Marie Lefkowitz, Chase Kurshan Herzfeld & Rubin LLC, Ronald G. DeWald, Lipshultz and Hone Chtd, Russ Ferguson, Womble Carlyle Sandridge & Rice LLP, Ryan Nelson Clark, Lewis, Thomason, King, Krieg & Waldrop, P.C., Sara Anne Ford, Lightfoot Ffanklin & White LLC, Seth Abram Schaeffer, McGuireWoods LLP, Thomas R. Valen, Gibbons PC, William L. Boesch, Sugarman Rogers Barshak & Cohen, Adam K. Bult, Brownstein Hyatt Farber Schreck, Allison Rachel McLaughlin, Wheeler Trigg O'Donnell LLP, Andrew Brian Clubok, Kirkland & Ellis, pro hac vice, Andrew R. Levin, Sugarman Rogers Barshak & Cohen, PC, Andrew R. Levin, Sugarman, Rogers, Barshak & Cohen, P.C., Anne Katherine Guillory, Dinsmore & Shohl LLP, April L. Watson, Sessions, Fishman & Nathan, Benjamin K. Reitz, Brownstein Hyatt Farber Schreck, Blake Adam Gansborg, Wheeler Trigg O'Donnell, LLP, Brett R. Leland, Verrill Dana LLP, Brian C. Langs, Johnson & Bell LTD, C. Vernon Hartline, Jr., Hartline Dacus Barger Dreyer LLP, pro hac vice, Carine M. Williams, Sullivan & Cromwell LLP, pro hac vice, Caroline M. Tinsley, BAKER AND STERCHI, LLC, Charles William McIntyre, Jr., McGuireWoods LLP, Charles Pendleton Mitchell, Rumberger Kirk & Caldwell, Christine Kingston, Nelson Mullins Riley & Scarborough LLP, Christopher Edward Tribe, McGuireWoods LLP Gateway Plaza, Dan R. Larsen, Dorsey and Whitney LLP, Darrell L. Barger, Hartline Dacus Barger Dreyer LLP, David L. Ayers, Watkins and Eager PLLC, David A. Barry, Esq., Sugarman Rogers Barshak & Cohen, David N. May, Bradshaw Fowler Proctor & Fairgrove, David M.J. Rein, Sullivan & Cromwell LLP, David T. Schaefer, Dinsmore & Shohl LLP, Edward W. Hearn, JOHNSON & BELL, PC, Elena Lalli Coronado, Sullivan and Cromwell, Elizabeth Righton Johnson, Balch & Bingham LLP, Emily Anne Ellis, Brownstein Hyatt Farber Shreck, Eric R. Burris, Brownstein Hyatt Farber Schreck, Erin Patricia Mead, Thorn, Gershon, Tymann & Bonanni, LLP, Gail Ponder Gaines, Barber Law Firm PLLC, Garrett L. Boehm, Jr., Johnson & Bell LTD, Harlan I. Prater, IV, Lightfoot, Franklin & White, Hugh Brown McNatt, McNatt, Greene & Peterson, J. Gordon Cooney, Jr., Morgan Lewis & Bockius LLP, James L. Hollis, Balch & Bingham, Jeffrey L. Chase, Herzfeld & Rubin PC, Jimmy B. Wilkins, WATKINS & EAGER, Jo E. Peifer, Lavin, O'Neil, Ricci, Cedrone & DiSipio, John David Ayers, WATKINS & EAGER, PLLC, John D. Donovan, Jr., Ropes and Gray LLP, John Alan Knox, Williams Kastner & Gibbs, John Garrett McCarthy, Sullivan and Cromwell LLP, pro hac vice, John Thomas Prisbe, Venable LLP, Jonathan M. Hoffman, MB Law Group, LLP, Joy Goldberg Braun, Sessions, Fishman, Nathan & Israel, Kenneth Abrams, McGuire Woods LLP, Kevin P. Polansky, Nelson Mullins Riley & Scarborough LLP, Laura Kabler Oswell, Sullivan & Cromwell LLP, Mark A. Weissman, Herzfeld & Rubin, P.C., pro hac vice, Mary E. Bolkcom, Hanson Bolkcom Law Group, Ltd., Matthew A. Schwartz, Sullivan and Cromwell LLP, pro hac vice, Melissa Fletcher Allaman, Nelson, Mullins, Riley & Scarborough, LLP, Meredith J. McKee, Womble Carlyle Sandridge & RIice, PLLC, Meredith J. McKee, Womble Carlyle Sandridge & Rice, Michael Thad Allen, Day Pitney LLP-HTFD, Michael B. Gallub, Herzfeld and Rubin, pro hac vice, Michael E. Hale, Barber Law Firm PLLC, Michael L. O'Don ell, Wheeler Trigg O'Donnell, LLP, Michael H. Steinberg, Sullivan & Cromwell, LLP, Michael A. Yoshida, MB Law Group, LLP, Mickey W. Greene, Hanson Bolkcom Law Group, Ltd., Miranda Hanley, Smith Welch Webb & White, LLC, Ningur Akoglu, Herzfeld & Rubin PC, Patricia Rodriguez Britton, Nelson Mullins Riley Scarborough LLP, Patrick Demetrios Grindlay, Paul T. Collins, Nelson Mullins Riley & Scarborough LLP, pro hac vice, Paul E.D. Darsow, Hanson Bolkcom Law Group, Ltd., Paul D. Williams, Day Pitney LLP-Htfd-CT, Richard White Crews, Jr., Hartline Dacus Barger Dreyer LLP, Righton Johnson, Robert J. Giuffra, Jr., Sullivan and Cromwell LLP, Ryan P. McCarthy, Morgan, Lewis & Bockius LLP, Ryan A. Morrison, Dinsmore & Shohl LLP, S. Keith Hutto, Nelson Mullins Riley & Scarborough, Sarah Motley Stone, Womble Carlyle Sandridge & Rice, PLLC, Sharon L. Nelles, Sullivan and Cromwell LLP, Sharon L. Nelles, Sullivan & Cromwell LLP, pro hac vice, Shawn P. George, George & Lorensen, Stanley Abbott Roberts, McGuireWoods LLP, Stephen D. Bell, Dorsey & Whitney LLP, Steve S. Tervooren, Hughes Gorski Seedorf Odsen & Tervooren LLC, Stuart A. Drake, Kirkland and Ellis LLP, pro hac vice, Suhana S. Han, Sullivan and Cromwell LLP, pro hac vice, Sverker K. Hogberg, Sullivan & Cromwell LLP, Thomas R. Ferguson, III, Womble Carlyle Sandridge & Rice, PLLC, Thomas W. Purcell, MB Law Group LLP, William B. Monahan, Sullivan and Cromwell LLP, pro hac vice & William Henry Wagener, Sullivan and Cromwell LLP, pro hac vice. Audi AG, Defendant, represented by Elizabeth L. Deeley -- elizabeth.deeley@kirkland.com - Kirkland & Ellis LLP, Matthew Henry Marmolejo -- mmarmolejo@mayerbrown.com -- Mayer Brown LLP, Michael Howard Steinberg -- steinbergm@sullcrom.com -- Sullivan & Cromwell, LLP, Andrew Brian Clubok - andrew.clubok@kirkland.com -- Kirkland & Ellis, pro hac vice, Andrew R. Levin -- levin@sugarmanrogers.c0m - Sugarman, Rogers, Barshak & Cohen, P.C., Brett R. Leland - bleland@verrilldana.com -- Verrill Dana LLP, David Maxwell James Rein -- reind@sullcrom.com -- Sullivan & Cromwell LLP, G. Stewart Webb, Jr. -- gswebb@Venable.com -- Venable LLP, Garrett L. Boehm, Jr. -- boehmg@jbltd.com -- Johnson & Bell LTD, J. Gordon Cooney, Jr. -- gordon.cooney@morganlewis.com -- Morgan Lewis & Bockius LLP, James K. Toohey -- tooheyj@jbltd.com -- Johns & Bell LTD, John Thomas Prisbe -- jtprisbe@venable.com -- Venable LLP, Laura Kabler Oswell -- oswelll@sullcrom.com -- Sullivan & Cromwell LLP, Robert J. Giuffra, Jr. -- giuffrar@sullcrom.com -- Sullivan and Cromwell LLP, Ryan P. McCarthy -- ryan.mccarthy@morganlewis.com -- Morgan, Lewis & Bockius LLP, Sharon L. Nelles -- nelless@sullcrom.com -- Sullivan and Cromwell LLP, Sharon L. Nelles, Sullivan & Cromwell LLP, Stephen D. Bell -- bell.steve@dorsey.com -- Dorsey & Whitney LLP, Stuart A. Drake -- stuart.drake@kirkland.com -- Kirkland and Ellis LLP, pro hac vice & William B. Monahan -- monahanw@sullcrom.com -- Sullivan and Cromwell LLP. Volkswagen AG, Defendant, represented by Elizabeth L. Deeley, Kirkland & Ellis LLP, Matthew H. Marmolejo, Mayer Brown LLP, Michael H. Steinberg, Sullivan & Cromwell, LLP, Andrew Brian Clubok, Kirkland & Ellis, pro hac vice, Andrew R. Levin, Sugarman, Rogers, Barshak & Cohen, P.C., Brett R. Leland, David M.J. Rein, Sullivan & Cromwell LLP, G. Stewart Webb, Jr., Venable LLP, John D. Donovan, Jr., Ropes and Gray LLP, Laura Kabler Oswell, Sullivan & Cromwell LLP, Robert J. Giuffra, Jr., Sullivan and Cromwell LLP, Sharon L. Nelles, Sullivan & Cromwell LLP, Stuart A. Drake, Kirkland and Ellis LLP, pro hac vice & William B. Monahan, Sullivan and Cromwell LLP. Audi of America LLC, Defendant, represented by Matthew H. Marmolejo, Mayer Brown LLP, Michael H. Steinberg, Sullivan & Cromwell, LLP, Andrew Brian Clubok, Kirkland & Ellis, pro hac vice, Andrew R. Levin, Sugarman, Rogers, Barshak & Cohen, P.C., Brett R. Leland, David M.J. Rein, Sullivan & Cromwell LLP, G. Stewart Webb, Jr., Venable LLP, John D. Donovan, Jr., Ropes and Gray LLP, Laura Kabler Oswell, Sullivan & Cromwell LLP, Robert J. Giuffra, Jr., Sullivan and Cromwell LLP, Sharon L. Nelles, Sullivan & Cromwell LLP, Stuart A. Drake, Kirkland and Ellis LLP, pro hac vice & William B. Monahan, Sullivan and Cromwell LLP. Volkswagen Group of America, a New Jersey corporation, Defendant, represented by P. Arley Harrel, Williams Kastner & Gibbs, PLLC, Gerard Cedrone, Lavin, O'Neil Ricci Cedrone & DiSipio, Kenneth Abrams, McGuire Woods LLP, Laura Kabler Oswell, Sullivan & Cromwell LLP & William B. Monahan, Sullivan and Cromwell LLP. Audi of America, Inc., Defendant, represented by Matthew H. Marmolejo, Mayer Brown LLP, Carine M. Williams, Sullivan & Cromwell LLP, pro hac vice, Cheryl A. Bush, Bush, Seyferth & Paige, PLLC, Colin H. Tucker, Rhodes Hieronymus Jones Tucker & Gable, David M.J. Rein, Sullivan & Cromwell LLP, pro hac vice, John H. Tucker, Rhodes Hieronymus Jones Tucker & Gable, Laura Kabler Oswell, Sullivan & Cromwell LLP, Melissa Fletcher Allaman, Nelson, Mullins, Riley & Scarborough, LLP, Michael R. Williams, Bush Seyferth & Paige PLLC, Robert J. Giuffra, Jr., Sullivan and Cromwell LLP & William B. Monahan, Sullivan and Cromwell LLP. Dr. Ing. h.c.F. Porsche AG, Defendant, represented by Abby L. Parsons, King & Spalding LLP, Adam G. Sowatzka, King & Spalding LLP, Alexander K. Haas, King & Spalding LLP, Andrew R. Levin, Sugarman, Rogers, Barshak & Cohen, P.C., Brett R. Leland, David M. Fine, King, Spaulding Law Firm, G. Stewart Webb, Jr., Venable LLP, Garrett L. Boehm, Jr., Johnson & Bell LTD, J. W. Codinha, Nixon Peabody, LLP, James K. Toohey, Johns & Bell LTD, James K. Vines, King & Spalding, John Thomas Prisbe, Venable LLP, Joseph Eisert, King & Spalding LLP, Kenneth Yeatts Turnbull, King & Spalding LLP, Matthew A. Goldberg, DLA Piper LLP, pro hac vice, Matthew A. Holian, DLA Piper LLP, Nathan P. Heller, DLA Piper LLP, Sheldon T. Bradshaw, KING & SPALDING, Sonya R. Braunschweig, DLA Piper LLP, W. Scott O'Connell, Nixon Peabody LLP, pro hac vice & William F. Kiniry, Jr., DLA Piper LLP, pro hac vice. David Antellocy, Defendant, represented by Thomas Eric Loeser, Hagens Berman Sobol Shapiro LLP, pro hac vice, Scott Moen, Defendant, represented by Peter B. Fredman, Law Office of Peter Fredman, Steve W. Berman, Hagens Berman Sobol Shapiro LLP, pro hac vice & Thomas Eric Loeser, Hagens Berman Sobol Shapiro LLP, pro hac vice. Porsche AG, Defendant, represented by Alexander K. Haas, King & Spalding LLP, Christina Courtney Sheehan, Modrall Sperling Roehl Harris & Sisk PA, Joseph Eisert, King & Spalding LLP, Laura Kabler Oswell, Sullivan & Cromwell LLP, Matthew A. Goldberg, DLA Piper LLP, Nathan P. Heller, DLA Piper LLP, Susan Miller Bisong, Modrall Sperling Roehl Harris & Sisk PA & William F. Kiniry, Jr., DLA Piper LLP. Robert Bosch GmbH, Defendant, represented by Matthew D. Slater, Cleary Gottlieb Steen and Hamilton LLP, pro hac vice, Carmine D. Boccuzzi, Jr., Cleary Gottlieb Steen & Hamilton LLP, pro hac vice & David Lloyd Anderson, Sidley Austin LLP. Bay Ridge Volvo-American, Inc, Defendant, represented by Natalie Marie Lefkowitz, Chase Kurshan Herzfeld & Rubin LLC. Audi USA, Defendant, represented by Laura Kabler Oswell, Sullivan & Cromwell LLP. MDL 2738: Court Transfers 3 Actions to District of New Jersey ------------------------------------------------------------- In the case, IN RE: JOHNSON & JOHNSON TALCUM POWDER PRODUCTS MARKETING, SALES PRACTICES AND PRODUCTS LIABILITY LITIGATION, MDL No. 2738, Judge Sarah S. Vance of the U.S. Judicial Panel on Multidistrict Litigation has entered an order transferring three actions from the Eastern District of Missouri to the District of New Jersey and, with the consent of that court, assigned the actions to the Honorable Freda L. Wolfson for coordinated or consolidated pretrial proceedings. The three actions are: * BARSH, ET AL. v. JOHNSON & JOHNSON, ET AL., C.A. No. 4:18-01464; * HITTLER, ET AL. v. JOHNSON & JOHNSON, INC., ET AL., C.A. No. 4:18-01474; and * HINTON v. PTI UNION, LLC, ET AL., C.A. No. 4:18-01602 Plaintiffs in the three actions, as listed on Schedule A, move under Panel Rule 7.1 to vacate the Panel's orders that conditionally transferred the actions to the District of New Jersey for inclusion in MDL No. 2738. Defendants PTI Union, LLC, and PTI Royston, LLC (the PTI Defendants), oppose the motions in all three actions. Defendants Johnson & Johnson, Johnson & Johnson Consumer, Inc., and Imerys Talc America, Inc., oppose the motions pertaining to the Eastern District of Missouri Barsh and Hittler actions. In support of their motions to vacate, plaintiffs in all three actions argue that federal subject matter jurisdiction over their actions is lacking, and that plaintiffs' motions for remand to state court are pending. The Panel has held that such jurisdictional issues generally do not present an impediment to transfer. Plaintiffs can present their remand arguments to the transferee judge. Plaintiffs in the Barsh and Hinton actions also argue that transfer of those actions is not appropriate because plaintiffs assert claims against unique defendants -- namely, Schnuck Markets, Inc., and the PTI Defendants. Plaintiffs' arguments are not persuasive. Transfer under Section 1407 does not require a complete identity of factual issues or parties when the actions arise from a common factual core. Plaintiffs' claims, like those of plaintiffs in the MDL, arise from a common factual core -- that plaintiffs allegedly developed ovarian cancer following perineal application of Johnson & Johnson's talcum powder products. Accordingly, transfer is appropriate. Moreover, the Panel has transferred numerous actions involving claims against retailers and other defendants to the MDL, including several actions involving claims against the PTI Defendants. Therefore, after considering the argument of counsel, Judge Vance finds that the actions listed on Schedule A involve common questions of fact with the actions transferred to MDL No. 2738, and that transfer under 28 U.S.C. Sec. 1407 will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. In the Judge's order centralizing this litigation, she held that the District of New Jersey was an appropriate Section 1407 forum for actions sharing factual questions arising from allegations that plaintiffs or their decedents developed ovarian or other gynecological cancer following perineal application of Johnson & Johnson's talcum powder products (namely, Johnson's Baby Powder and Shower to Shower body powder). The actions listed on Schedule A share multiple factual issues with those already in the MDL. Judge Vance therefore transferred the three actions listed on Schedule A to the District of New Jersey and, with the consent of that court, assigned to the Honorable Freda L. Wolfson for coordinated or consolidated pretrial proceedings. A full-text copy of the Court's December 6, 2018 Transfer Order is available at https://bit.ly/2ROC8PK MDL 2741: Court Transfers 2 Actions to N. District of California ---------------------------------------------------------------- In the case, IN RE: ROUNDUP PRODUCTS LIABILITY LITIGATION, MDL No. 2741, Judge Sarah S. Vance of the U.S. Judicial Panel on Multidistrict Litigation has entered an order transferring two actions to the Northern District of California and, with the consent of that court, assigned the actions to the Honorable Vince Chhabria for coordinated or consolidated pretrial proceedings. These two actions are styled LOPEZ v. MONSANTO COMPANY, C.A. No. 4:18-00360 pending in the District of Arizona and POULIN v. MONSANTO COMPANY, C.A. No. 1:18-00318 pending in the District of Maine. Defendant Monsanto Company moves under Panel Rule 7.1 to vacate the Panel's order that conditionally transferred the two actions listed on Schedule A to the Northern District of California for inclusion in MDL No. 2741. Plaintiff in the District of Maine Poulin action did not respond to the motion and is deemed to acquiesce to it under Panel Rule 6.1(c) ("Failure to respond to a motion shall be treated as that party's acquiescence to it."). Plaintiff in the District of Arizona Lopez action opposes the motion. In support of its motion to vacate, Monsanto argues that transfer of Lopez and Poulin is inappropriate because plaintiffs in these actions do not allege that they developed non-Hodgkin's lymphoma (NHL) after using Roundup. Rather, they allegedly suffer from either acute lymphocytic leukemia (also called acute lymphoblastic leukemia, or ALL) or multiple myeloma. NHL, though, is an umbrella term that cover s a number of different blood cancers. In its papers, Monsanto concedes that there is a split in the scientific literature as to whether multiple myeloma is a subtype of NHL. And, while ALL seems not to be considered a sub-type of NHL, chronic lymphocytic leukemia has been classified as such. The transferee court recently completed the general causation phase of the pretrial proceedings, which included both a "Science Day" presentation By the parties as well as nearly a week-long evidentiary hearing on Monsanto's motion to exclude plaintiffs' general causation experts. Given this background, the transferee court is far better positioned than the Panel is to determine whether these alleged cancers, which at first glance seem quite similar to NHL, fit within the scope of MDL No. 2741. Moreover, even if these two actions were not transferred to the MDL, the transferee court still would have to address the question of which blood cancers, if any, maybe caused by exposure to Monsanto's products. Numerous complaints in the MDL allege that the "[International Agency for Research on Cancer] Working Group concluded that the cancers most associated with glyphosate exposure are non-Hodgkin lymphoma and other haematopoietic cancers, including lymphocytic lymphoma/chronic lymphocytic leukemia, B-cell lymphoma, and multiple myeloma." At least one complaint pending in the MDL alleges that plaintiff developed ALL as a result of using Roundup. Excluding Poulin and Lopez thus seems likely to result in duplication of the pretrial proceedings. After considering the parties' arguments, Judge Vance finds that the two actions involve common questions of fact with the actions transferred to MDL No. 2741, and that transfer under 28 U.S.C. Sec. 1407 will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. In her order centralizing this litigation, she held that the Northern District of California was an appropriate Section 1407 forum for actions sharing factual questions arising out of allegations that Monsanto's Roundup herbicide, particularly its active ingredient, glyphosate, causes NHL. Both the Lopez and Poulin complaints share numerous factual issues with the cases already in the MDL. Indeed, substantial portions of these complaints contain allegations regarding glyphosate and its regulatory history that are essentially identical to the complaints pending in the MDL. Given the transferee court's familiarity with the issues and the substantial discovery that has taken place in the MDL, transfer of these actions likely will result in efficiencies with respect to discovery and other pretrial proceedings. Judge Vance therefore transferred the two actions to the Northern District of California and, with the consent of that court, assigned the actions to the Honorable Vince Chhabria for coordinated or consolidated pretrial proceedings. A full-text copy of the Court's December 6, 2018 Transfer Order is available at https://bit.ly/2QNHU6O MDL 2741: Simmons Suit v Monsanto over Roundup Sales Consolidated ----------------------------------------------------------------- The class action lawsuit titled NIKITA SIMMONS, the Plaintiffs, v. MONSANTO COMPANY, Defendant, Case No. 4:18-cv-01844, was transferred from the U.S. District Court for the Eastern District of Missouri, to the U.S. District Court for the Northern District of California (San Francisco) on Nov. 20, 2018. The Northern District of California Court Clerk assigned Case No. 3:18-cv-07065-VC to the proceeding. This is an action for damages suffered by Plaintiffs as a direct and proximate result of Defendant negligent and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, advertising, distribution, labeling, and/or sale of the herbicide Roundup (TM), containing the active ingredient glyphosate. The Simmons case is being consolidated with MDL 2741 in re: Roundup Products Liability Litigation. The MDL was created by Order of the United States Judicial Panel on Multidistrict Litigation on October 3, 2016. These actions share common factual questions arising out of allegations that Monsanto's Roundup herbicide, particularly its active ingredient, glyphosate, causes non-Hodgkin's lymphoma. Plaintiffs each allege that they or their decedents developed non-Hodgkin's lymphoma after using Roundup over the course of several or more years. Plaintiffs also allege that the use of glyphosate in conjunction with other ingredients, in particular the surfactant polyethoxylated tallow amine (POEA), renders Roundup even more toxic than glyphosate on its own. Issues concerning general causation, the background science, and regulatory history will be common to all actions. In its October 3, 2016 Order, the MDL Panel found that the actions in this MDL involve common questions of fact, and that centralization in the Northern District of California will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation. Centralization will eliminate duplicative discovery; prevent inconsistent pretrial rulings (including with respect to discovery, privilege, and Daubert motion practice); and conserve the resources of the parties, their counsel, and the judiciary. Presiding Judge in the MDL is Hon. Judge Vince Chhabria. The lead case is 3:16-md-02741-VC.[BN] Attorneys for Plaintiffs: Seth S. Webb, Esq. BROWN & CROUPPEN, P.C. 211 North Broadway, Suite 1600 St. Louis, MO 63102 E-mail: sethw@getbc.com Telephone: (314) 222-2222 Facsimile: (314) 421-0359 MDL 2741: Singletary Suit v Monsanto over Roundup Consolidated -------------------------------------------------------------- The class action lawsuit titled MARY B. SINGLETARY, the Plaintiffs, v. MONSANTO COMPANY, Defendant, Case No. 4:18-cv-01851, was transferred from the U.S. District Court for the Eastern District of Missouri, to the U.S. District Court for the Northern District of California (San Francisco) on Nov. 20, 2018. The Northern District of California Court Clerk assigned Case No. 3:18-cv-07067-VC to the proceeding. This is an action for damages suffered by Plaintiffs as a direct and proximate result of Defendant negligent and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, advertising, distribution, labeling, and/or sale of the herbicide Roundup (TM), containing the active ingredient glyphosate. The Singletary case is being consolidated with MDL 2741 in re: Roundup Products Liability Litigation. The MDL was created by Order of the United States Judicial Panel on Multidistrict Litigation on October 3, 2016. These actions share common factual questions arising out of allegations that Monsanto's Roundup herbicide, particularly its active ingredient, glyphosate, causes non-Hodgkin's lymphoma. Plaintiffs each allege that they or their decedents developed non-Hodgkin's lymphoma after using Roundup over the course of several or more years. Plaintiffs also allege that the use of glyphosate in conjunction with other ingredients, in particular the surfactant polyethoxylated tallow amine (POEA), renders Roundup even more toxic than glyphosate on its own. Issues concerning general causation, the background science, and regulatory history will be common to all actions. In its October 3, 2016 Order, the MDL Panel found that the actions in this MDL involve common questions of fact, and that centralization in the Northern District of California will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation. Centralization will eliminate duplicative discovery; prevent inconsistent pretrial rulings (including with respect to discovery, privilege, and Daubert motion practice); and conserve the resources of the parties, their counsel, and the judiciary. Presiding Judge in the MDL is Hon. Judge Vince Chhabria. The lead case is 3:16-md-02741-VC.[BN] Attorneys for Plaintiffs: Seth S. Webb, Esq. BROWN & CROUPPEN, P.C. 211 North Broadway, Suite 1600 St. Louis, MO 63102 E-mail: sethw@getbc.com Telephone: (314) 222-2222 Facsimile: (314) 421-0359 MDL 2741: Sixbury Suit v Monsanto over Roundup Sales Consolidated ----------------------------------------------------------------- The class action lawsuit titled DAN L. SIXBURY, the Plaintiffs, v. MONSANTO COMPANY, Defendant, Case No. 4:18-cv-01821, was transferred from the U.S. District Court for the Eastern District of Missouri, to the U.S. District Court for the Northern District of California (San Francisco) on Nov. 20, 2018. The Northern District of California Court Clerk assigned Case No. 3:18-cv-07058-VC to the proceeding. This is an action for damages suffered by Plaintiffs as a direct and proximate result of Defendant negligent and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, advertising, distribution, labeling, and/or sale of the herbicide Roundup (TM), containing the active ingredient glyphosate. The Sixbury case is being consolidated with MDL 2741 in re: Roundup Products Liability Litigation. The MDL was created by Order of the United States Judicial Panel on Multidistrict Litigation on October 3, 2016. These actions share common factual questions arising out of allegations that Monsanto's Roundup herbicide, particularly its active ingredient, glyphosate, causes non-Hodgkin's lymphoma. Plaintiffs each allege that they or their decedents developed non-Hodgkin's lymphoma after using Roundup over the course of several or more years. Plaintiffs also allege that the use of glyphosate in conjunction with other ingredients, in particular the surfactant polyethoxylated tallow amine (POEA), renders Roundup even more toxic than glyphosate on its own. Issues concerning general causation, the background science, and regulatory history will be common to all actions. In its October 3, 2016 Order, the MDL Panel found that the actions in this MDL involve common questions of fact, and that centralization in the Northern District of California will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation. Centralization will eliminate duplicative discovery; prevent inconsistent pretrial rulings (including with respect to discovery, privilege, and Daubert motion practice); and conserve the resources of the parties, their counsel, and the judiciary. Presiding Judge in the MDL is Hon. Judge Vince Chhabria. The lead case is 3:16-md-02741-VC.[BN] Attorneys for Plaintiffs: Seth S. Webb, Esq. BROWN & CROUPPEN, P.C. 211 North Broadway, Suite 1600 St. Louis, MO 63102 E-mail: sethw@getbc.com Telephone: (314) 222-2222 Facsimile: (314) 421-0359 MDL 2741: Wooley Suit v Monsanto over Roundup Sales Consolidated ---------------------------------------------------------------- The class action lawsuit titled JOHN H. WOOLEY JR., the Plaintiffs, v. MONSANTO COMPANY, Defendant, Case No. 4:18-cv-01840, was transferred from the U.S. District Court for the Eastern District of Missouri, to the U.S. District Court for the Northern District of California (San Francisco) on Nov. 20, 2018. The Northern District of California Court Clerk assigned Case No.3:18-cv-07062-VC to the proceeding. This is an action for damages suffered by Plaintiffs as a direct and proximate result of Defendant negligent and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, advertising, distribution, labeling, and/or sale of the herbicide Roundup (TM), containing the active ingredient glyphosate. The Wooley case is being consolidated with MDL 2741 in re: Roundup Products Liability Litigation. The MDL was created by Order of the United States Judicial Panel on Multidistrict Litigation on October 3, 2016. These actions share common factual questions arising out of allegations that Monsanto's Roundup herbicide, particularly its active ingredient, glyphosate, causes non-Hodgkin's lymphoma. Plaintiffs each allege that they or their decedents developed non-Hodgkin's lymphoma after using Roundup over the course of several or more years. Plaintiffs also allege that the use of glyphosate in conjunction with other ingredients, in particular the surfactant polyethoxylated tallow amine (POEA), renders Roundup even more toxic than glyphosate on its own. Issues concerning general causation, the background science, and regulatory history will be common to all actions. In its October 3, 2016 Order, the MDL Panel found that the actions in this MDL involve common questions of fact, and that centralization in the Northern District of California will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation. Centralization will eliminate duplicative discovery; prevent inconsistent pretrial rulings (including with respect to discovery, privilege, and Daubert motion practice); and conserve the resources of the parties, their counsel, and the judiciary. Presiding Judge in the MDL is Hon. Judge Vince Chhabria. The lead case is 3:16-md-02741-VC.[BN] Attorneys for Plaintiffs: Seth S. Webb, Esq. BROWN & CROUPPEN, P.C. 211 North Broadway, Suite 1600 St. Louis, MO 63102 E-mail: sethw@getbc.com Telephone: (314) 222-2222 Facsimile: (314) 421-0359 MDL 2742: Court Transfers Zornoza Suit to S.D. New York ------------------------------------------------------- In the case, IN RE: SUNEDISON, INC., SECURITIES LITIGATION, MDL No. 2742, Judge Sarah S. Vance of the U.S. Judicial Panel on Multidistrict Litigation has entered an order transferring the action styled ZORNOZA v. TERRAFORM GLOBAL, INC., ET AL., C.A. No. 8:18-2523 from the District of Maryland to the Southern District of New York and, with the consent of that court, assigned the action to the Honorable P. Kevin Castel for inclusion in the coordinated or consolidated pretrial proceedings. Plaintiff Carlos Domenech Zornoza in a District of Maryland action (Domenech II) listed on the attached Schedule A moves under Panel Rule 7.1 to vacate the Panel's order conditionally transferring his action to MDL No. 2742. Defendants Peter Blackmore, Ahmad Chatila, Emmanuel Hernandez, Brian Wuebbels, TerraForm Power, Inc., and Terraform Global, Inc., oppose the motion. After considering the argument of counsel, Judge Vance finds this action involves common questions of fact with the actions previously transferred to MDL No. 2742, and that transfer under 28 U.S.C. Sec. 1407 will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. Transfer is warranted for the reasons set out in the Panel's order directing centralization. In that order, the Judge held that the Southern District of New York was an appropriate Section 1407 forum for actions sharing factual questions arising from allegedly inaccurate statements concerning SunEdison's operational and financial condition (e.g., its liquidity, classification of debt, and internal financial control), as well as the propriety of its public filings. The centralized actions involved various transactions, offerings and statements made in the roughly ten-month period before SunEdison filed for bankruptcy relief. As the Judge noted when she transferred plaintiff's prior whistleblower action (also over his objections), this action involves allegations related to SunEdison's liquidity, particularly defendants' alleged efforts to conceal the true state of SunEdison's liquidity, in the months preceding the bankruptcy. Domenech II thus falls within the MDL's ambit. Plaintiff in Domenech II is the former President and Chief Executive Officer of SunEdison (SUNE) yieldcos, GLBL and TERP, as well as a former Executive Vice President of their controlling parent company, SUNE. Plaintiff contends that he was improperly dismissed from employment for his refusal to participate in an unlawful scheme to falsely report SunEdison's actual and projected cash holdings, as well as his advocacy against certain self-dealing transactions designed to siphon hundreds of millions of dollars from SunEdison subsidiaries into SunEdison coffers. These events allegedly led to the collapse and bankruptcy of SunEdison; in fact, plaintiff's initial action (which was transferred over his objections in May2017) is quoted at length in the complaints of several MDL actions. Defendants in Domenech II- GLBL, TERP, and four individual former officers and directors of SUNE and certain yieldcos - also are defendants in multiple MDL actions. Plaintiff Domenech himself remains a defendant in the GLBLIPO litigation, which was tentatively settled but is currently in litigation over whether defendants' rights to terminate the settlement were triggered by two investor groups' decision to opt out. Transfer will benefit these common parties' convenience and that of any common witnesses. Plaintiff opposes transfer primarily by arguing that his action focuses only on his unique whistleblower allegations, that there is no significant factual overlap with the remaining MDL cases, and that transfer will be a burden to him. Plaintiff also expresses the concern that his action will take longer to resolve in the transferee court than it would without transfer. The Panel has long held that"Section1407does not require a complete identity or even majority of common factual and legal issues." The significant events in Domenech II, without doubt, concern "factual issues arising from allegedly inaccurate statements concerning SunEdison's operational and financial condition -- e.g., its liquidity, classification of debt [], and internal financial controls -- and the alleged impropriety of its public filings." While it appears that Domenech II maybe the only whistleblower action in the MDL (a similar action was dismissed in March 2018), plaintiff's role in SunEdison's demise remains of interest to the plaintiffs in some of the remaining MDL actions. For instance, plaintiff recently was deposed in connection with the Horowitz action, and that testimony is at the center of a pending MDL discovery dispute regarding the production of documents related to an internal investigation. Transfer of Domenech II will allow for the streamlined resolution of all related actions while, at the same time, reducing the risk of inconsistent pretrial rulings and duplicative pretrial discovery. Further, transfer will obviate the need for another judge to become familiar with the extensive factual background of SunEdison, its yieldcos and their ultimate demise. Judge Vance therefore transferred the Zornoza action from the District of Maryland to the Southern District of New York and, with the consent of that court, assigned the action to the Honorable P. Kevin Castel for inclusion in the coordinated or consolidated pretrial proceedings. A full-text copy of the Court's December 6, 2018 Transfer Order is available at https://bit.ly/2LbN1bO MDL 2744: Claims in Monostable Electronic Gearshift Suit Narrowed ----------------------------------------------------------------- In the case, IN RE: FCA US LLC MONOSTABLE ELECTRONIC GEARSHIFT LITIGATION, MDL No. 2744, Case No. 16-md-02744 (E.D. Mich.), Judge David M. Lawson of the U.S. District Court for the Eastern District of Michigan, Southern Division, granted in part and denied in part the Defendant's motion to dismiss the economic loss Plaintiffs' second amended consolidated master class action complaint ("SACMC"). The Defendant has filed a fourth motion to dismiss under Federal Rule of Civil Procedure 12(b). This one is aimed at the SACMC in the multidistrict litigation proceeding, and it is based on Rule 12(b)(6). The parties agreed to submit the motion on the papers a waive oral argument. The parties are familiar with the facts and proceedings to date in the multidistrict litigation matter involving certain alleged defects in the transmissions of approximately 850,000 vehicles manufactured by FCA. On November 15, 2017, the Court issued its opinion rejecting the defendant's principal challenges to the FACMC and dismissing several claims based on other minor defects. On December 8, 2017, the plaintiffs filed their SACMC omitting the claims and plaintiffs that had been dismissed and consolidating parties and claims from individual actions that had been transferred into the MDL after the FACMC was filed and while the defendant's previous motion was pending. The SACMC contains 120 counts brought on behalf of 43 the Plaintiffs from 26 states. After the SACMC was filed, Pennsylvania Plaintiff Timothy Weber was dismissed from the case based on his notice of voluntary dismissal. Weber's dismissal does not affect the resolution of the motion since FCA does not challenge any counts raised by the Pennsylvania Plaintiffs, and Weber was not the only Plaintiff from that state. Oklahoma plaintiff Carol Clark also filed a notice of voluntary dismissal of her claims. In addition, at the status conference on Nov. 21, 2108, the Lead Counsel for the plaintiffs moved to dismiss the case of Justine Andollo from Florida. Clark was the only economic loss Plaintiff from Oklahoma, and Andollo was the only economic loss Plaintiff from Florida; the class claims from those states vanished with the dismissal of those underlying cases. However, the Defendant did not challenge any of the counts asserting claims under Oklahoma law. Nevertheless, it appears that all of the claims under Oklahoma law must be dismissed due to the withdrawal of the only named Plaintiff from that state. Those counts are: LXXXIII (consumer fraud), LXXXIV (fraudulent concealment), LXXXV (express warranty), LXXXVI (implied warranty), and LXXXVII (unjust enrichment). The following Florida counts likewise will be dismissed: XVIII (Florida Fair Trade Practices Act), XIX (fraudulent concealment), XX (express warranty), and XXI (unjust enrichment). As the case now stands with the dismissals of those counts, the SACMC consists of live class claims by the 41 Plaintiffs from 24 states, pleaded in 111 counts. In its second motion under Rule 12(b)(6), FCA asks the Court to dismiss in their entirety Counts III, XIII, XIV, XIX, XXII, XXIII, XXX, XXXII, XXXVI, XXXVIII, XLV, XLIX, LI, LXI, LXIV, LXXIII, LXXIV, LXXVI, LXXXI, CI, CIII, CX and CXVI of the SACMC. It also asks the Court to dismiss in part Count I (the Magnuson-Moss Warranty Act claim) to the extent that it is premised on the challenged state law claims, and Count XXVIII (for consumer fraud under Illinois state law). Judge Lawson holds that most of the Plaintiffs' economic loss claims will survive, but some of them must be dismissed. Accordingly, he granted in part and denied in part the Defendant's motion to dismiss the economic loss Plaintiffs' SACMC. The Judge dismissed with prejudice the following claims: (1) the portion of Count LI (Minnesota) that may be construed as premised on failure to disclose a known defect at the point of sale; (2) the implied warranty claims in Count LXXVI (North Carolina), LXI (Nevada), CX (Washington); and (3) that portion of Count XXVIII that may be construed as raising any claims under the authority of 720 Ill. Comp. Stat. Section 295/1A. He struck the citation of 720 Ill. Comp. Stat. Section 295/1A in Count XXVIII. The Judge dismissed withoutr prejudice the claims of former Oklahoma Plaintiff Clark pleaded in Counts LXXXIII (consumer fraud), LXXXIV (fraudulent concealment), LXXXV (express warranty), LXXXVI (implied warranty), and LXXXVII (unjust enrichment), and the claims of former Florida Plaintiff Andollo pleaded in XVIII (Florida Fair Trade Practices Act), XIX (fraudulent concealment), XX (express warranty), and XXI (unjust enrichment). In all other respects, the Defendant's motion is denied. A full-text copy of the Court's Nov. 28, 2018 Opinion and Order is available at https://is.gd/GuBGYv from Leagle.com. In Re FCA US LLC Monostable Electronic Gearshift Litigation, represented by Larry J. Saylor -- saylor@millercanfield.com -- Miller, Canfield. Bruce Vosburgh, Plaintiff, represented by E. Powell Miller -- epm@miller.law.com -- The Miller Law Firm, Sharon S. Almonrode -- ssa@miller.law.com -- The Miller Law Firm, P.C. & Dennis A. Lienhardt -- dal@millerlawpc.com -- The Miller Law Firm, P.C.. Timothy Weber, Plaintiff, represented by E. Powell Miller, The Miller Law Firm, Joseph H. Meltzer -- jmeltzer@ktmc.com -- Kessler Topaz Meltzer & Check, LLP, Peter A. Muhic -- pmuhic@ktmc.com -- Kessler Topaz Meltzer & Check, LLP, Sharon S. Almonrode, The Miller Law Firm, P.C. & Tyler S. Graden, Kessler Topaz Meltzer & Check, LLP. Bernadine Hartt, Plaintiff, represented by David M. Honigman -- dhonigman@manteselaw.com -- Mantese Honigman, PC, Douglas Toering -- dtoering@manteselaw.com -- Mantese Honigman, P.C., Gerard V. Mantese -- gmantese@manteselaw.com -- Mantese Honigman, P.C., E. Powell Miller, The Miller Law Firm, James A. Buster, Mantese Honigman, P.C., Kevin A. Seely, Robbins Arroyo LLP, Krista M. Hosmer, Mantese Honigman, P.C., Leonid Kandinov, Robbins Arroyo LLP, Matthew Thomas Prewitt, Cuneo Gilbert & LaDuca, LLP & Robert K. Shelquist -- rkshelquist@locklaw.com -- Lockridge Grindal Nauen PLLP. Berardino D'Onofrio, Plaintiff, represented by David M. Honigman, Mantese Honigman, PC, Douglas Toering, Mantese Honigman, P.C., Gerard V. Mantese, Mantese Honigman, P.C., E. Powell Miller, The Miller Law Firm, James A. Buster, Mantese Honigman, P.C., Kevin A. Seely, Robbins Arroyo LLP, Krista M. Hosmer, Mantese Honigman, P.C., Leonid Kandinov, Robbins Arroyo LLP, Matthew Thomas Prewitt, Cuneo Gilbert & LaDuca, LLP & Robert K. Shelquist, Lockridge Grindal Nauen PLLP. Marc Hughes, Plaintiff, represented by Daniel E. Gustafson -- dgustafson@gustafsongluek.com -- Gustafson Gluek PLLC & E. Powell Miller, The Miller Law Firm. Andre Barfield, Plaintiff, represented by E. Powell Miller, The Miller Law Firm, Kevin F. O'Shea -- kfo@miller.law -- Miller Law Firm & Sharon S. Almonrode, The Miller Law Firm, P.C.. Nina Walker, Plaintiff, represented by Daniel E. Gustafson, Gustafson Gluek PLLC & E. Powell Miller, The Miller Law Firm. David Goldsmith, Plaintiff, represented by Steve W. Berman -- steve@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, Christopher R. Pitoun -- christopherp@hbsslaw.com -- Hagens Berman, E. Powell Miller, The Miller Law Firm, Elizabeth A. Fegan -- beth@hbsslaw.com -- Hagens Berman Sobol Shapiro, LLP & Thomas Eric Loeser, Hagens Berman Sobol Shapiro LLP. Michael Vincent Nathan, Jr, Plaintiff, represented by Steve W. Berman, Hagens Berman Sobol Shapiro LLP, Christopher R. Pitoun, Hagens Berman, E. Powell Miller, The Miller Law Firm, Elizabeth A. Fegan, Hagens Berman Sobol Shapiro, LLP & Thomas Eric Loeser -- toml@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP. Pascual Pietri, Plaintiff, represented by Steve W. Berman, Hagens Berman Sobol Shapiro LLP, Christopher R. Pitoun, Hagens Berman, E. Powell Miller, The Miller Law Firm, Elizabeth A. Fegan, Hagens Berman Sobol Shapiro, LLP & Thomas Eric Loeser, Hagens Berman Sobol Shapiro LLP. FCA US LLC, Defendant, represented by Amanda J. Hettinger -- ahettinger@thompsoncoburn.com -- Thompson Coburn LLP, Kathy A. Wisniewski -- kwisniewski@thompsoncoburn.com -- Thompson Coburn LLP, Larry J. Saylor, Miller, Canfield, Sharon B. Rosenberg -- srosenberg@thompsoncoburn.com -- Thompson Coburn LLP, Stephen A. D'Aunoy, Thompson Coburn LLP, Cheryl A. Bush -- bush@bsplaw.com -- Bush, Seyferth & Paige, PLLC, Michael R. Williams -- williams@bsplaw.com -- Bush Seyferth & Paige PLLC & Thomas L. Azar, Jr. -- tazar@thompsoncoburn.com -- Thompson Coburn LLP. MDL 2795: Court Transfers Palkon Lawsuit to District of Minnesota ----------------------------------------------------------------- In the case, IN RE: CENTURYLINK SALES PRACTICES AND SECURITIES LITIGATION, MDL No. 2795, Judge Sarah S. Vance of the U.S. Judicial Panel on Multidistrict Litigation has entered an order transferring the action styled PALKON v. CENTURYLINK, INC., ET AL., C.A. No. 3:18-00998 from the Western District of Louisiana to the District of Minnesota, and, with the consent of that court, assigned the action to the Honorable Michael J. Davis for inclusion in the coordinated or consolidated pretrial proceedings. Plaintiff and defendants in a shareholder derivative action pending in the Western District of Louisiana (Palkon) separately move under Panel Rule 7.1 to vacate the Panel's order conditionally transferring the action to the District of Minnesota for inclusion in MDL No. 2795. The State of Oregon, which is the lead plaintiff in the securities class action in the MDL, opposes the motions. After considering the arguments of counsel, Judge Vance finds that Palkon involves common questions of fact with the consumer actions transferred to MDL No. 2795, and that transfer will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. The actions in the MDL "share factual questions arising from allegations that [CenturyLink and its affiliates]... engaged in a range of deceptive or otherwise improper practices, such as billing subscribers for telephone lines or services that the subscribers did not request, billing subscribers higher rates than the rates quoted during sales calls, imposing early termination fees when subscribers cancelled the services due to the higher-than-quoted rates, charging for periods of service before the service was connected or products received, and failing to process subscribers' service cancellation requests in a timely manner." Palkon plainly involves those same questions, and, indeed, is substantially similar to three other derivative actions (Flanders, Ault, and Barbree) that the Panel recently transferred to the MDL over those parties' objections. The moving parties' arguments in support of vacatur are essentially the same as those raised by the parties in Flanders, Ault, and Barbree. The Panel rejects them for the same reasons it ordered transfer of those actions. Judge Vance therefore transferred the Palkon action to the District of Minnesota, and, with the consent of that court, assigned to the Honorable Michael J. Davis for inclusion in the coordinated or consolidated pretrial proceedings. A full-text copy of the Court's December 6, 2018 Transfer Order is available at https://bit.ly/2RNqRiu MDL 2800: Court Transfers 2 Suits v. Equifax to N.D. Georgia ------------------------------------------------------------ In the case, IN RE: EQUIFAX, INC., CUSTOMER DATA SECURITY BREACH LITIGATION, MDL No. 2800, Judge Sarah S. Vance of the U.S. Judicial Panel on Multidistrict Litigation has entered an order transferring two actions to the Northern District of Georgia and, with the consent of that court, assigned the cases to the Honorable Thomas W. Thrash for inclusion in the coordinated or consolidated pretrial proceedings. These two cases are LAMAR v. EQUIFAX, INC., C.A. No. 5:18-01369 (in Central District of California) and COMMONWEALTH OF PUERTO RICO v. EQUIFAX, INC., C.A. No. 3:18-01424 (in District of Puerto Rico). The Plaintiffs in the two actions each move under Panel Rule 7.1 to vacate the Panel's order conditionally transferring their actions to MDL No. 2800. Defendant Equifax, Inc., opposes the motions to vacate. After considering all arguments, Judge Vance finds these actions involve common questions of fact with the actions previously transferred to MDL No. 2800, and that transfer under 28 U.S.C. Sec. 1407 will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. The actions in MDL No. 2800 arise from a 2017 cybersecurity incident involving Equifax in which it is alleged the personally identifiable information of more than 145 million consumers was compromised. While the initial transfer order in MDL No. 2800 included only putative nationwide and statewide consumer class actions, actions brought by individual consumers, including pro se plaintiffs, and at least one government enforcement action have been included in centralized proceedings through Section 1407 transfer or direct filing in the transferee court. The actions before the Panel involve allegations, similar to those in the MDL No. 2800 actions, that Equifax failed to adequately safeguard consumers' personally identifiable information, which was compromised during the Equifax data breach, and that defendants failed to inform the public of the data breach in a timely manner. Plaintiffs argue that transfer will cause them inconvenience and delay. As the Judge has held, while it might inconvenience some parties, transfer of a particular action often is necessary to further the expeditious resolution of the litigation taken as a whole. The transferee judge is in the best position to structure proceedings so as to minimize inconvenience to any individual party. The remaining arguments asserted by plaintiffs are not persuasive. The Central District of California Lamar plaintiff, proceeding pro se, does not dispute that her action shares questions of fact and law with the actions in MDL No. 2800, though she argues that it goes "beyond the scope" of the MDL because she did not give Equifax express consent to use her personal information. Like the actions centralized in MDL No. 2800, plaintiff alleges that Equifax failed to adequately safeguard her personal information, which was compromised during the Equifax data breach. Transfer to MDL No. 2800, therefore, is consistent with the Panel's initial transfer order in this litigation. Plaintiff argues that she does not consent to a change of venue under 28 U.S.C. Sec. 1404(a), but transfer By the Panel under 28 U.S.C. Sec. 1407 does not require plaintiff's consent. Plaintiff also incorrectly asserts that a default judgment is pending against Equifax in the transferor court. The District of Puerto Rico Commonwealth of Puerto Rico plaintiff also does not dispute that this action shares factual questions with the MDL No. 2800 consumer class actions arising from the data breach, the state of Equifax's cybersecurity leading up to the breach, and Equifax's response to the breach. Rather, plaintiff argues that Commonwealth of Puerto Rico is unique because it is not a class action but instead is brought by plaintiff in its sovereign capacity on its own behalf and as parens patriae on behalf of the people of Puerto Rico. But the Panel recently transferred a similar government enforcement action to MDL No. 2800, over plaintiff's objections. Moreover, the Panel has held that Section 1407 transfer "does not require a complete identity of common factual issues or parties as a prerequisite to transfer, and the presence of... differing legal theories is not significant where, as here, the actions still arise from a common factual core." Though there may be some differences between Commonwealth of Puerto Rico and the MDL No. 2800 consumer class actions, discovery between this action and the consumer class actions will overlap significantly, and inclusion likely will result in efficiencies. The Commonwealth of Puerto Rico plaintiff argues that its action will be consolidated into and supplanted by the consolidated consumer class action complaint without proper representation of plaintiff's citizens, but the transferee judge can employ any number of pretrial techniques--such as establishing separate discovery and/or motion tracks--to efficiently and fairly handle the government enforcement actions. And if the transferee judge determines that Commonwealth of Puerto Rico is best excluded from centralized proceedings, procedures are available where by this may be accomplished with a minimum of delay. Plaintiff also argues that United States citizens in Puerto Rico are subjected to "continuing inequality" with regard to their representation in federal government, and they lack an ability to use "additional extra-judicial avenues of reproach against Equifax" that purportedly are available to other United States citizens. This argument is irrelevant to the Panel's determination of whether Section1407 transfer is appropriate. Similarly, the Panel does not consider choice-of-law issues or differences in the substantive laws of different jurisdictions when deciding Section 1407 transfer. Moreover, it is "within the very nature of coordinated or consolidated pretrial proceedings in multidistrict litigation for the transferee judge to be called upon to apply the law of more than one state." Judge Vance therefore transferred the two actions to the Northern District of Georgia and, with the consent of that court, assigned the cases to the Honorable Thomas W. Thrash for inclusion in the coordinated or consolidated pretrial proceedings. A full-text copy of the Court's December 6, 2018 Transfer Order is available at https://bit.ly/2QrBtai MDL 2800: Court Transfers Bordelon Suit to N. District of Georgia ----------------------------------------------------------------- In the case, IN RE: EQUIFAX, INC., CUSTOMER DATA SECURITY BREACH LITIGATION, MDL No. 2800, Judge Lewis A. Kaplan of the U.S. Judicial Panel on Multidistrict Litigation has entered an order transferring the action styled BORDELON v. EQUIFAX INFORMATION SERVICES LLC, C.A. No. 6:18-01137 from Western District of Louisiana to the Northern District of Georgia and, with the consent of that court, assigned the action to the Honorable Thomas W. Thrash for inclusion in the coordinated or consolidated pretrial proceedings. Plaintiff in the Bordelon action, proceeding pro se, moves under Panel Rule 7.1 to vacate the Panel's order conditionally transferring his action to MDL No. 2800. Defendant Equifax Information Services, LLC, opposes the motion to vacate. After considering all arguments, Judge Kaplan find this action involves common questions of fact with the actions previously transferred to MDL No. 2800, and that transfer under 28 U.S.C. Sec. 1407 will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. The actions in MDL No. 2800 arise from a 2017 cybersecurity incident involving Equifax in which it is alleged the personally identifiable information of more than 145 million consumers was compromised. While the initial transfer order in MDL No. 2800 included only putative nationwide and statewide consumer class actions, actions brought by individual consumers, including pro se plaintiffs, have been included in centralized proceedings through Section 1407 transfer or direct filing in the transferee court. Bordelon involves allegations, similar to those in the MDL No. 2800 actions, that Equifax failed to adequately safeguard plaintiff's personally identifiable information, which was compromised during the Equifax data breach, and that certain Equifax employees improperly sold Equifax stock prior to publicly announcing the breach. Plaintiff does not dispute that his action shares questions of fact and law with the actions in MDL No. 2800, or that his action arises out of the 2017 Equifax data breach. Plaintiff's complaint also includes allegations that Equifax failed to properly investigate and correct inaccurate information on his individual credit report. Against transfer, plaintiff argues that his action involves unique allegations and state law claims, and that he plans to amend his complaint to add additional parties and claims, but he states that he will consent to transfer of some claims to the MDL if the Panel separates and remands certain others that he asserts do not relate to the Equifax data breach. It appears though from the complaint that plaintiff's allegations regarding the data breach are involved in most, if not all, of his claims. In these circumstances, the Panel finds the most efficient course is to transfer the entire action at this time. If the transferee judge determines that certain claims in Bordelon (or in the amended complaint plaintiff has stated he intends to file) are best excluded from centralized proceedings, procedures are available whereby this may be accomplished with a minimum of delay. Plaintiff's assertion that MDL No. 2800 does not already include state law claims is incorrect. Moreover, as the Panel has stated, "the presence of... differing legal theories is not significant where, as here, the actions still arise from a common factual core." Plaintiff argues that transfer will cause him inconvenience, but the Panel has held that, while it might inconvenience some parties, transfer of a particular action often is necessary to further the expeditious resolution of the litigation taken as a whole. The transferee judge is in the best position to structure proceedings so as to minimize inconvenience to any individual party. Finally, plaintiff argues that Section 1407 transfer deprives him of due process. As an initial matter, "[t]he fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner." Plaintiff's arguments are speculative and largely devoid of specifics, and the Panel finds they are without merit. The Panel has rejected similar arguments in the past. As in those instances, the Panel finds that transfer does not deny plaintiff the opportunity to meaning fully participate in pretrial proceedings before the transferee court. Judge Kaplan therefore transferred the Bordelon action to the Northern District of Georgia and, with the consent of that court, assigned the action to the Honorable Thomas W. Thrash for inclusion in the coordinated or consolidated pretrial proceedings. A full-text copy of the Court's December 7, 2018 Transfer Order is available at https://bit.ly/2QNrn2J MDL 2804: Court Transfers 22 Actions to Northern District of Ohio ----------------------------------------------------------------- In the case, IN RE: NATIONAL PRESCRIPTION OPIATE LITIGATION, MDL No. 2804, Judge Sarah S. Vance of the U.S. Judicial Panel on Multidistrict Litigation has entered an order transferring 22 actions to the Northern District of Ohio and, with the consent of that court, assigned the cases to the Honorable Dan A. Polster for inclusion in the coordinated or consolidated pretrial proceedings. Plaintiffs in 22 actions and certain physician defendants in three District of Maine actions move under Panel Rule 7.1 to vacate the orders conditionally transferring the actions listed on Schedule A to MDL No. 2804. Non-governmental agency amici support the motion brought by plaintiffs in the Southern District of West Virginia Doyle action. The Maine physician defendants request that Judge Vance separate and remand the claims against them. Amici The American Hospital Association supports defendants' motion. Various responding manufacturer and distributor defendants oppose the motions. After considering the argument of counsel, the Judge find these actions involve common questions of fact with the actions previously transferred to MDL No. 2804, and that transfer under 28 U.S.C. Sec. 1407 will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. Moreover, transfer is warranted for the reasons set out in the Panel's order directing centralization. In that order, the Panel held that the Northern District of Ohio was an appropriate Section 1407 forum for actions sharing factual questions regarding the allegedly improper marketing and/or distribution of various prescription opiate medications into cities, states and towns across the country. Plaintiffs in the initial motion for centralization were cities, counties and a state that alleged: "(1) manufacturers of prescription opioid medications overstated the benefits and downplayed the risks of the use of their opioids and aggressively marketed (directly and through key opinion leaders) these drugs to physicians, and/or (2) distributors failed to monitor, detect, investigate, refuse and report suspicious orders of prescription opiates." The Panel held that "[a]ll actions involve common factual questions about, inter alia, the manufacturing and distributor defendants' knowledge of and conduct regarding the alleged diversion of these prescription opiates, as well as the manufacturers' alleged improper marketing of such drugs." Despite some variances among the actions before the Panel, all contain a factual core common to the MDL actions: the manufacturing and distributor defendants' alleged knowledge of and conduct regarding the diversion of these prescription opiates, as well as the manufacturers' allegedly improper marketing of such drugs. The actions therefore fall within the MDL's ambit. The parties opposing transfer in nineteen actions argue principally that federal jurisdiction is lacking over their cases. But opposition to transfer challenging the propriety of federal jurisdiction is insufficient to warrant vacating conditional transfer orders covering otherwise factually-related cases. Several parties argue that including their actions in this large MDL will cause them inconvenience. Given the undisputed factual overlap with the MDL proceedings, transfer is justified in order to facilitate the efficient conduct of the litigation as a whole. Local health care provider defendants in the District Maine actions request that Judge Vance excludes the claims against them from the MDL. This request invites the Judge to make substantive judgments about the merits of these claims, which she declines to do, since dealing with the merits of claims is beyond the Panel's statutory mission. Plaintiffs in three actions argue that the identity of the plaintiffs, infants born opioid-dependent, and their unique damages - which include the alleged need for a medical monitoring trust that funds prolonged, multidisciplinary care - differentiate these cases from those brought by the cities, counties and states that comprise the bulk of MDL No. 2804. While Judge Vance agrees that plaintiffs will have different damages and potential remedies, the differences among these claims are outweighed by the substantial factual allegations shared with the MDL actions. Counsel for these plaintiffs are dissatisfied, inter alia, that the transferee court denied their request for leave to seek to establish an neonatal abstinence syndrome (NAS) track in MDL No. 2804 in June 2018. Their renewed motion, filed in late-August 2018, remains under submission. The Panel historically has declined to become entangled in parties' disagreements with the transferee court, and Judge Vance declines plaintiffs' invitation to do so here. The Judge further deny the NAS plaintiffs' motions to vacate for the reasons stated in the Panel's order denying centralization in MDL No. 2872 Judge Vance therefore transferred the actions listed on Schedule A to the Northern District of Ohio and, with the consent of that court, assigned the cases to the Honorable Dan A. Polster for inclusion in the coordinated or consolidated pretrial proceedings. A full-text copy of the Court's December 6, 2018 Transfer Order is available at https://bit.ly/2B7BZQc MDL 2804: Court Vacates Order Moving Suit v. Purdue Pharma to Ohio ------------------------------------------------------------------ In the case, IN RE: NATIONAL PRESCRIPTION OPIATE LITIGATION, MDL No. 2804, Judge Sarah S. Vance of the U.S. Judicial Panel on Multidistrict Litigation vacated the Panel's order conditionally transferring a District of Massachusetts qui tam action, styled UNITED STATES OF AMERICA, ET AL. v. PURDUE PHARMA, L.P., ET AL., C.A. No. 1:16-10947, to the Northern District of Ohio for inclusion in MDL No. 2804. The United States of America moves under Panel Rule 7.1 to vacate the Panel's order conditionally transferring a District of Massachusetts qui tam action listed on the attached Schedule A to the Northern District of Ohio for inclusion in MDL No. 2804. Defendants Purdue Pharma L.P., Purdue Pharma, Inc., and The Purdue Frederick Company support the motion. No party opposes the motion to vacate. After considering the argument of counsel, the Judge grants the motion to vacate. Without doubt, the action shares factual questions with the other MDL cases. Relator alleges that Purdue and the defendant distributors caused the submission of false claims to government healthcare programs (i.e. Medicare, Medicaid) by knowingly failing to report providers who were engaged in diversion, and because Purdue should have introduced an abuse-deterrent formulation earlier but failed to do so until it was approved By the Food and Drug Administration in 2010. But no qui tam cases are pending in the MDL. The United States is moving to dismiss the action based on the False Claims Act's prior disclosure bar and relator's asserted lack of standing to pursue his claims. Resolution of this motion could obviate the need for transfer. If any claims survive and the action proceeds to discovery, then the parties agree that they will re-notice the action, and the Panel can reinitiate the conditional transfer process. Vacating the conditional transfer of this action in these circumstances will assist the transferee court in maintaining its focus on the principal tasks before it, which at present includes significant bellwether litigation, while ensuring the orderly progress of this qui tam action. For these reasons, Judge Vance vacated the Panel's conditional transfer order designated as "CTO-50" with respect to this action. A full-text copy of the Court's December 6, 2018 Orders is available at https://bit.ly/2RQ8Ujv MDL 2846: Court Transfers Luks v. Davol Suit to S. Dist. of Ohio ---------------------------------------------------------------- In the case, IN RE: DAVOL, INC./C.R. BARD, INC., POLYPROPYLENE HERNIA MESH PRODUCTS LIABILITY LITIGATION, MDL No. 2846, Judge Sarah S. Vance of the U.S. Judicial Panel on Multidistrict Litigation has entered an order transferring the case styled LUKS v. DAVOL INC., ET AL., C.A. No. 2:18-01280 from the District of Arizona to the Southern District of Ohio and, with the consent of that court, assigned the case to the Honorable Edmund A. Sargus for inclusion in the coordinated or consolidated pretrial proceedings. Plaintiff in the Luks action moves under Panel Rule7.1 to vacate the Panel's order conditionally transferring the action to MDL No. 2846. Defendants C. R. Bard, Inc.; Davol Inc.; Becton, Dickinson and Co.; and Bard Devices, Inc., oppose the motion to vacate. After considering the argument of counsel, Judge Vance finds that Luks involves common questions of fact with the actions transferred to MDL No. 2846, and that transfer under 28 U.S.C. Sec. 1407 will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. Like many of the already-centralized actions, it involves factual questions arising out of allegations that defects in defendants' polypropylene hernia mesh products can lead to complications when implanted in patients including, inter alia, adhesions, damage to organs, and infections. Plaintiff alleges that, as a result of her implantation with a Composix Kugel patch (CK Patch), she suffered injuries including a tear and laceration in the liver and infection, which required subsequent surgeries. Plaintiff argues that cases involving the CK Patch are unique from the other MDL No. 2846 actions, and her action therefore should be excluded. The CK Patch was the subject of a recall between December 2005 and January 2007, following reports that the memory recoil ring in some CK Patches had broken. The CK Patch was one of the models of hernia patches at issue in MDL No. 1842 -- In re: Kugel Mesh Hernia Patch Products Liability Litigation, 493 F. Supp. 2d 1371 (J.P.M.L. 2007). Plaintiff argues that very few of the MDL No. 2846 actions involve allegations of memory recoil ring break, and that discovery in the MDL will focus more broadly on defects with Bard's polypropylene mesh products that do not contain a ring. According to defendants, there are at least eleven cases pending in MDL No. 2846 that involve the CK Patch, and discussions are underway between the parties and the court concerning how the CK Patch cases should be handled in this MDL. The Panel finds that the transferee court is in the best position to determine whether claims involving the CK Patch would benefit from inclusion in the MDL. If the transferee judge determines that Section 1407 remand of any claims is appropriate, then he can suggest remand with a minimum of delay. The CK Patch was not the only hernia patch model at issue in MDL No. 1842, and plaintiffs in the MDL No. 1842 actions alleged defects in addition to the memory recoil ring break. The Luks plaintiff suggests that her action will be subject to both MDL s, but MDL No. 1842 has been closed for over a year. Plaintiff argues that the additional discovery material she will seek beyond that produced in MDL No. 1842 will be limited. But such discovery will be common with the discovery that will be sought in the other CK Patch cases pending in MDL No. 2846 and maybe accomplished more efficiently in a centralized fashion. Plaintiff also argues that leadership counsel in MDL No. 2846 will not adequately represent the interests of the CK Patch plaintiffs. The transferee judge is in the best position to address this concern and structure proceedings so as to minimize inconvenience to any individual party, such as through the use of separate discovery tracks. Judge Vance is confident that, if the transferee judge determines inclusion of the CK Patch cases is appropriate, he will efficiently and fairly manage these claims. Judge Vance therefore transferred the action to the Southern District of Ohio and, with the consent of that court, assigned the case to the Honorable Edmund A. Sargus for inclusion in the coordinated or consolidated pretrial proceedings. A full-text copy of the Court's December 6, 2018 Order is available at https://bit.ly/2RSz6tG MDL 2870: Court Denies Bid to Centralize 4 Securities Litigation ---------------------------------------------------------------- In the case, IN RE: PATRIOT NATIONAL, INC., SECURITIES LITIGATION, MDL No. 2870, Judge Sarah S. Vance of the U.S. Judicial Panel on Multidistrict Litigation denied the Plaintiff's motion for centralization of four actions in the Southern District of Florida. The actions pending in the Southern District of Florida are: * MCINTIRE, ET AL. v. MARIANO, ET AL., C.A. No. 0:18-60075; and * KANIKI v. MARIANO, ET AL., C.A. No. 0:18-62097. The actions pending in the Southern District of New York are: * GINGELLO v. PATRIOT NATIONAL, INC., ET AL., C.A. No. 1:17-01866; and * KAYCE v. PATRIOT NATIONAL, INC., ET AL., C.A. No. 1:17-07164. Plaintiffs in the McIntire action move to centralize the four actions in the Southern District of Florida. Plaintiffs in the New York actions oppose centralization, as do defendants Christopher Pesch and Quentin P. Smith, Jr. On the basis of the papers filed and the hearing session held, Judge Vance concludes that centralization is not necessary for the convenience of the parties and witnesses or to further the just and efficient conduct of this litigation. Undoubtedly, these actions share factual issues arising from allegations of financial misconduct involving Patriot National, Inc., a provider of technology and out sourcing solutions to the insurance industry, which filed for Chapter 11 bankruptcy in January 2018. But, there are, in reality, only three actions, as the New York actions have been consolidated. Further, plaintiffs in the Florida actions are represented by common counsel. As the Panel has stated, "where only a minimal number of actions are involved, the moving party generally bears a heavier burden of demonstrating the need for centralization." The McIntire plaintiffs have not carried that burden. In addition to the small number of actions, the litigation appears to be at an advanced stage. According to counsel for the New York plaintiffs, a settlement in principle has been reached with the Patriot National director and officer defendants. They represent that they anticipate filing a motion for preliminary approval of that settlement by late December. If that is the case, there is little, if any, need for centralization. In the event that the settlement is not consummated, and significant pretrial proceedings are required, alternatives to centralization seem practicable. For example, in McIntire, a motion to transfer the case to the Southern District of New York under 28U.S.C. Sec. 1404or the first-to-file rule is pending. Although no such motion has been filed yet in the other Florida case (Kaniki), an order granting transfer of McIntire likely would spur similar motion practice. Even if transfer is denied, the limited number of actions suggests that cooperation and informal coordination by the involved courts and counsel should be feasible. Finally, the record provides at least some support for the argument of the New York plaintiffs that the true animating force behind this Section 1407 motion is the McIntire plaintiffs' dissatisfaction with the lead plaintiff/lead counsel appointment process that took place in the New York actions, and their corresponding quest to reopen that process. Section 1407's purposes do not include resolving disputes among counsel over control of the litigation. Whatever the merits of the McIntire plaintiffs' aggrievement, they are not properly before the Panel. For these reasons, Judge Vance denied the motion for centralization of the actions. A full-text copy of the Court's December 6, 2018 Order is available at https://bit.ly/2C1ISUV MDL 2872: Court Denies Bid to Centralize 7 Products Liability Suits ------------------------------------------------------------------- In the case, IN RE: INFANTS BORN OPIOID-DEPENDENT PRODUCTS LIABILITY LITIGATION, MDL No. 2872, Judge Sarah S. Vance of the U.S. Judicial Panel on Multidistrict Litigation denied the Plaintiff's motion for centralization of seven actions. Plaintiffs in the seven actions move under 28 U.S.C. Sec. 1407 to centralize this litigation in the Southern District of West Virginia or, alternatively, the Southern District of Illinois. The litigation consists of seven actions pending in two districts, as listed on Schedule A. Plaintiffs in potential tag-along actions in the Eastern District of Pennsylvania (Doe) and the Southern District of West Virginia (Riling) support the motion, as do non-governmental agency amici Manufacturer defendants oppose the motion, as do distributor defendants. After considering the argument of counsel, Judge Vance concludes that Section 1407 centralization of this litigation is not necessary. The actions now before her are all brought on behalf of opioid-addicted infants who have been diagnosed with neonatal abstinence syndrome (NAS). All cases share facts concerning the allegedly improper marketing and sale of prescription opiates, as well as their allegedly improper diversion to illicit channels. There is substantial overlap between all of these cases and MDL No. 2804 - In re: National Prescription Opiate Litigation, which she centralized in December 2017. This is unsurprising, since many of the cases on plaintiffs' motion already are pending in that MDL, transferred without objection from plaintiffs. Factual questions of the manufacturing and distributor defendants' knowledge of and conduct regarding the alleged diversion of prescription opiates, as well as the manufacturers' alleged improper marketing of such drugs, lie at the heart of each case now before her. The identity of plaintiffs and their unique damages - which plaintiffs and amici assert include the need for a medical monitoring trust that funds prolonged, multidisciplinary care - do indeed differentiate these cases from those brought by the cities, counties and states that comprise the bulk of MDL No. 2804. But these differences among claims and requested relief, in the Judge's opinion, do not justify the creation of a new MDL. Few efficiencies will be gained by creating a new MDL for NAS plaintiffs. Discovery regarding the marketing, manufacture, distribution and diversion of prescription opiates in plaintiffs' cases will substantially overlap with that being undertaken in MDL No. 2804. The transferee judge in anew MDL would need to coordinate on most matters pertaining to liability with the transferee court in MDL No. 2804. Significantly, the risk of inconsistent pretrial rulings would increase dramatically were the Panel to create another MDL, as plaintiffs request, before a judge in a district outside the Northern District of Ohio (in fact, plaintiffs' requested transferee courts are both outside the Sixth Circuit). The progress of both MDLs likely would be hindered by the need for two judges to attend to overlapping discovery matters, rule on redundant motion practice and administer both MDLs separately. New case management protocols and counsel leadership would have to be6established in the NAS MDL. The substantial duplication of activity would be costly, and it likely would slow the pace of MDL No. 2804, in which discovery and bellwether motion practice is underway. Creating a new MDL simply is at odds with Section 1407's mandate that centralization "promote the just and efficient conduct of [the involved] actions." Movants offer several critiques of MDL No. 2804 as a justification for a new MDL. Plaintiffs are dissatisfied that the transferee court denied their request for leave to seek to establish an NAS infant track in June 2018. Their renewed motion, filed in late-August 2018, remains under submission. In their briefs and at oral argument, the NAS plaintiffs expressed concern that the MDL No. 2804 Plaintiffs' Executive Committee was not sufficiently addressing their needs in the7litigation by, for instance, keeping counsel for the NAS plaintiffs sufficiently apprised of upcoming depositions. NAS plaintiffs argue that these issues rise to the level of a deprivation of due process, citing the Supreme Court class settlement cases Amchem Prods., Inc. v. Windsor, 521 U.S. 591(1997), and Ortiz v. Fibreboard Corp., 527 U.S. 815(1999)). Amchem and Ortiz, however, are readily distinguishable, in as much as they arose in starkly different procedural circumstances. The NAS plaintiffs now before the Panel are represented by their own counsel, and no other counsel is purporting to settle the NAS plaintiffs' interests on their behalf while also representing another class with conflicting interests. Historically, the Panel has declined to entangle ourselves in case management disputes such as this. Instead, the Panel dedicates its resolution to the discretion of the transferee judge. In 2013, for example, the Panel was asked to carve out claims from the existing Deepwater Horizon MDL to create a new MDL. Although Judge Vance is denying centralization, she appreciates plaintiffs' concerns that their counsel are not being informed about the conduct of this litigation. Still, the Judge thinks plaintiffs' arguments for creating a new MDL boil down to case management issues that are most appropriately presented to, and resolved by, the transferee judge, who is in the best position to appreciate all of the nuances presented by this exceptionally complex litigation. The Judge is confident in his ability to ensure that non-leadership counsel and other litigants are treated appropriately in this litigation. For these reasons, Judge Vance denied the motion for centralization of the seven actions listed on Schedule A. A full-text copy of the Court's December 6, 2018 Order is available at https://bit.ly/2UuYN5e MDL 2872: Court Denies Bid to Centralize 7 Products Liability Suits ------------------------------------------------------------------- In the case, IN RE: INFANTS BORN OPIOID-DEPENDENT PRODUCTS LIABILITY LITIGATION, MDL No. 2872, Judge Sarah S. Vance of the U.S. Judicial Panel on Multidistrict Litigation has denied the Plaintiff's motion for Section 1407 centralization of seven actions pending in two districts, as listed on Schedule A. Plaintiffs in seven actions move under 28 U.S.C. Sec. 1407 to centralize this litigation in the Southern District of West Virginia or, alternatively, the Southern District of Illinois. The litigation consists of seven actions pending in two districts, as listed on Schedule A. Plaintiffs in potential tag-along actions in the Eastern District of Pennsylvania (Doe) and the Southern District of West Virginia (Riling) support the motion, as do non-governmental agency amici. Manufacturer defendants oppose the motion, as do distributor defendants. After considering the argument of counsel, Judge Vance concludes that Section 1407 centralization of this litigation is not necessary. The actions now before the Panel are all brought on behalf of opioid-addicted infants who have been diagnosed with neonatal abstinence syndrome (NAS). All cases share facts concerning the allegedly improper marketing and sale of prescription opiates, as well as their allegedly improper diversion to illicit channels. There is substantial overlap between all of these cases and MDL No. 2804 - In re: National Prescription Opiate Litigation, which the Panel centralized in December 2017. This is unsurprising, since many of the cases on plaintiffs' motion already are pending in that MDL, transferred without objection from plaintiffs. Factual questions of the manufacturing and distributor defendants' knowledge of and conduct regarding the alleged diversion of prescription opiates, as well as the manufacturers' alleged improper marketing of such drugs, lie at the heart of each case now before the Panel. The identity of plaintiffs and their unique damages -- which plaintiffs and amici assert include the need for a medical monitoring trust that funds prolonged, multidisciplinary care -- do indeed differentiate these cases from those brought by the cities, counties and states that comprise the bulk of MDL No. 2804. But these differences among claims and requested relief, in the Judge's opinion, do not justify the creation of a new MDL. Few efficiencies will be gained by creating a new MDL for NAS plaintiffs. Discovery regarding the marketing, manufacture, distribution and diversion of prescription opiates in plaintiffs' cases will substantially overlap with that being undertaken in MDL No. 2804. The transferee judge in anew MDL would need to coordinate on most matters pertaining to liability with the transferee court in MDL No. 2804. Significantly, the risk of inconsistent pretrial rulings would increase dramatically were the Judge to create another MDL, as plaintiffs request, before a judge in a district outside the Northern District of Ohio (in fact, plaintiffs' requested transferee courts are both outside the Sixth Circuit). The progress of both MDLs likely would be hindered by the need for two judges to attend to overlapping discovery matters, rule on redundant motion practice and administer both MDLs separately. New case management protocols and counsel leadership would have to be established in the NAS MDL. The substantial duplication of activity would be costly, and it likely would slow the pace of MDL No. 2804, in which discovery and bellwether motion practice is underway. Creating a new MDL simply is at odds with Section 1407's mandate that centralization "promote the just and efficient conduct of [the involved] actions." Movants offer several critiques of MDL No. 2804 as a justification for a new MDL. Plaintiffs are dissatisfied that the transferee court denied their request for leave to seek to establish an NAS infant track in June 2018. Their renewed motion, filed in late-August 2018, remains under submission. In their briefs and at oral argument, the NAS plaintiffs expressed concern that the MDL No. 2804 Plaintiffs' Executive Committee was not sufficiently addressing their needs in the7litigation by, for instance, keeping counsel for the NAS plaintiffs sufficiently apprised of upcoming depositions. NAS plaintiffs argue that these issues rise to the level of a deprivation of due process, citing the Supreme Court class settlement cases Amchem Prods., Inc. v. Windsor, 521 U.S. 591(1997), and Ortiz v. Fibreboard Corp., 527 U.S. 815(1999)). Amchem and Ortiz, however, are readily distinguishable, inasmuch as they arose in starkly different procedural circumstances. The NAS plaintiffs now before the Panel are represented by their own counsel, and no other counsel is purporting to settle the NAS plaintiffs' interests on their behalf while also representing another class with conflicting interests. Historically, the Panel has declined to entangle ourselves in case management disputes such as this. Instead, the Panel dedicates its resolution to the discretion of the transferee judge. In 2013, for example, the Panel were asked to carve out claims from the existing Deepwater Horizon MDL to create a new MDL. Although the Panel is denying centralization, Judge Vance appreciates plaintiffs' concerns that their counsel are not being informed about the conduct of this litigation. Still, the Judge thinks plaintiffs' arguments for creating a new MDL boil down to case management issues that are most appropriately presented to, and resolved by, the transferee judge, who is in the best position to appreciate all of the nuances presented by this exceptionally complex litigation. The Judge is confident in his ability to ensure that non-leadership counsel and other litigants are treated appropriately in this litigation. For these reasons, Judge Vance denies the Plaintiff's motion for Section 1407 centralization of the actions listed on Schedule A. A full-text copy of the Court's December 6, 2018 Order is available at https://bit.ly/2UuYN5e MDL 2873: 75 of 84 Suits Transferred to South Carolina ------------------------------------------------------ In the case, IN RE: AQUEOUS FILM-FORMING FOAMS PRODUCTS LIABILITY LITIGATION, MDL No. 2873, Judge Lewis A. Kaplan of the U.S. Judicial Panel on Multidistrict Litigation has entered an order: * transferring 75 actions to the District of South Carolina and, with the consent of that court, assign the cases to the Honorable Richard M. Gergel for coordinated or consolidated pretrial proceedings; and * denying the transfer of nine actions. There are two motions under 28 U.S.C. Sec. 1407 to centralize pretrial proceedings in this litigation. Defendants Tyco Fire Products, LP, and Chemguard, Inc. (collectively, Tyco) move to centralize the 75 actions listed on Schedule A in the District of Massachusetts or, alternatively, the Southern District of New York. All of the actions on Schedule A involve allegations that aqueous film-forming foams (AFFFs , which are used to extinguish liquid fuel fires)contaminated the groundwater near certain airports and other industrial locations with perfluorooctane sulfonate (PFOS) and/or perfluorooctanoic acid(PFOA), which allegedly were contained in the AFFFs and are toxic. Defendant 3M Company joins Tyco's motion and separately moves to include an additional nine actions in the MDL. These actions, which are listed on Schedule B, do not involve allegations relating to AFFFs, but 3M’s manufacture of per- or polyfluoroalkyl substances (PFAS, an umbrella term that includes PFOS and PFOA). Specifically, each of these actions names 3M as a defendant and relates to (a) its sale of PFAS or other PFAS-containing products to third-parties, or (b) 3M's manufacture, management, or disposal of PFAS in connection with its manufacturing facilities. The actions listed on Schedule B are referred to as the non-AFFF actions. Together, the two Section 1407 motions encompass 84 actions pending in twelve districts. Additionally, the Panel has been notified of sixteen related actions pending in nine districts. Ten of these related actions appear to involve AFFF claims, while six involve non-AFFF claims. The responding parties take a variety of positions with respect to centralization and the selection of the transferee district for this litigation. Tyco takes no position on 3M’s motion to expand the MDL to include non-AFFF cases. The other AFFF-manufacturer defendants support Tyco's motion. Defendants United Technologies Corporation, Kidde PLC Inc., Kidde-Fenwal, Inc., and UTC Fire& Security Americas Corporation, Inc., take no position on 3M’s motion. Defendants National Foam, Inc., and Buckeye Fire Equipment Company, in contrast, oppose inclusion of non-AFFF actions. All AFFF manufacturing defendants support D. Massachusetts or S.D. New York as the transferee district. Two AFFF governmental defendants (County of Suffolk and Town of East Hampton) also support or do not oppose centralization, though East Hampton suggests the Eastern District of New York as the transferee district. Plaintiffs in 64 actions and four potential tag-along actions either do not oppose or support centralization of all PFAS actions (i.e., both AFFF and non-AFFF actions). Plaintiffs in six AFFF actions pending in the District of Colorado and the Eastern District of Pennsylvania (including interim lead class counsel in both districts) oppose centralization. Plaintiffs in seven non-AFFF actions, as well as defendants Wolverine World Wide, Inc., and E.I. du Pont de Nemours and Company, oppose inclusion of the non-AFFF actions in this MDL. All of the plaintiffs support the Southern District of Ohio as the transferee district if an MDL is created, while certain of the plaintiffs also propose centralization in the Northern District of Alabama, the District of Colorado, or the District of New Jersey. Additionally, a number of parties oppose inclusion of their respective actions in any centralized proceeding. With respect to the AFFF actions, plaintiffs in two actions pending in the District of Colorado request, in the event the Panel creates an MDL, that the consolidated Bell class actions in that district be excluded from the MDL. Plaintiff and six groups of non-manufacturer defendants in the City of Newburgh action pending in the Southern District of New York ask Judge Kaplan to exclude that action from any MDL. Several of these parties alternatively request the Panel separate and remand plaintiff's claims against the non-manufacturers to the transferor court (though one defendant opposes this). If centralized, two of the defendant groups request the Southern District of New York as the transferee district. With respect to the nine non-AFFF actions, at least one party in each action opposes its inclusion in the MDL. On the basis of the papers filed and hearing session held, the Judge finds that the AFFF actions listed on Schedule A involve common questions of fact, and that centralization will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation. In each of these actions, plaintiffs allege that AFFF products used at airports, military bases, or certain industrial locations caused the release of PFOA or PFOS into local groundwater and contaminated drinking water supplies. With some minor variations, the same group of AFFF manufacturer defendants is named in each action. These actions thus share factual questions concerning the toxicity of PFOA and PFOS and their effects on human health; the chemical properties of these substances and their propensity to migrate in groundwater supplies; the knowledge of the AFFF manufacturers regarding the dangers of PFOA and PFOS; their warnings, if any, regarding proper use and storage of AFFFs; and to what extent, if any, defendants conspired or cooperated to conceal the dangers of PFOA and PFOS in their products. Additionally, the AFFF manufacturers likely will assert identical government contractor defenses in many of the actions. Centralization will eliminate duplicative discovery; prevent inconsistent pretrial rulings (including with respect to discovery, privilege, and Daubert motion practice); and conserve the resources of the parties, their counsel, and the judiciary. Opponents of centralization focus on the factual differences among the actions. First, they contend that location-specific factual issues will predominate over the common AFFF factual issues. Were this litigation limited to only a few actions, as in In re Monsanto PCB Water Contamination Litigation, 176 F. Supp. 3d 1379 (J.P.M.L. 2016), the presence of site-specific contamination issues would weigh heavily against centralization. But, here the Judge is presented with 75 AFFF actions pending in eight districts, and that number is likely to grow significantly. Given the large numbers of involved actions and districts, alternatives to centralization (such as informal coordination and cooperation among counsel and the courts) are impracticable. In similar circumstances, the Judge has centralized groundwater contamination cases despite the presence of multiple contamination sites. The efficiencies to be gained through centralized treatment of common factual questions in such a large litigation are considerable. Opponents of centralization also argue that the causes of action and parties in the AFFF actions differ so significantly that any efficiencies from centralization will be offset by delay. These actions include personal injury cases brought by individuals who allegedly drank contaminated groundwater, class actions seeking to represent individuals who live near sites where AFFF was used and assert claims for medical monitoring and property damage, and cases brought by water authorities and other governmental entities seeking costs for environmental remediation or upgrades to water treatment systems. Even so, all the AFFF actions involve the same mode of groundwater contamination caused by the same product. Therefore, these actions will involve significant and overlapping discovery of the AFFF manufacturers and their products. To the extent the actions entail unique factual or legal issues, the transferee court has the discretion to address those issues through the use of appropriate pretrial devices, such as separate tracks for discovery and motion practice.10And, should the transferee court determine that continued inclusion of certain actions or categories of actions in the MDL no longer is appropriate, the transferee court may recommend Section 1407 remand of those actions in advance of other actions. Judge Kaplan will not exclude any of the AFFF actions from the MDL. The Colorado plaintiffs argue that the consolidated Bell class actions in the District of Colorado are too advanced to warrant transfer. While those actions are the most procedurally advanced AFFF actions, the only discovery completed to date pertains to class certification. Significant common discovery and pretrial motion practice pertaining to liability and general causation remain, and will benefit from inclusion in the centralized proceedings. In contrast to Bell, the City of Newburgh action in the Southern District of New York was only recently filed. The parties opposing its inclusion in the MDL -- both plaintiff and numerous non-manufacturing defendants, including the United States and the State of New York -- argue that City of Newburgh involves unique environmental claims against non-manufacturer plaintiffs. City of Newburgh, though, also involves negligence and strict liability claims against the AFFF manufacturer defendants that are substantially similar to those in the other AFFF actions. To the extent the City seeks unique or time-sensitive injunctive relief pertaining to its water supplies, the City can and should raise such concerns with the transferee court. Furthermore, six other actions (three on Tyco's motion and three potential tag-alongs) involve the same allegations regarding contamination of the City's water supply through use of AFFFs at New York Stewart International Airport. Excluding City of Newburgh thus would result in a duplication of efforts. The Judge agrees, however, that the non-AFFF actions listed on Schedule B should not be included in this MDL. These nine actions are quite different from the AFFF actions and, indeed, from each other. They include discharges directly into the Tennessee River by various industrial concerns in Decatur, Alabama; contamination originating from a shoe manufacturer's industrial waste; and airborne PFAS discharges from factories in Hoosick Falls, New York. These actions thus are different in kind from the AFFF actions and involve more varied defendants. Moreover, 3M's proposed definition of this MDL's scope is unworkable -- in the Northern District of New York, for example, there are at least 21 additional related actions involving the Hoosick Falls contamination that do not name 3M, only Saint-Gobain and Honeywell. While a non-AFFF MDL would allow for common discovery and motion practice with respect to 3M -- the main producer of PFOA and PFOS -- it also would include far more site-specific issues, different modes of PFAS contamination, and different PFAS chemicals (whereas the AFFF actions are limited to PFOA and PFOS contamination). Such an MDL could quickly become unwieldy. As there are relatively few non-AFFF actions, which are being managed effectively in their current districts, expansion of this MDL to include non-AFFF actions is not warranted. Even excluding the non-AFFF actions, this MDL undoubtedly will be a complex litigation from a judicial management perspective. With this in mind, Judge Kaplan selects the District of South Carolina as the appropriate transferee district for this litigation. This district is not burdened by many MDLs and has the capacity and resources to successfully guide this litigation. More importantly, the Honorable Richard M. Gergel, who sits in this district, is an experienced transferee judge who can prudently steer the litigation. Though a related action is not currently pending in the District of South Carolina, that is not a bar to centralization in a particular district. Judge Kaplan therefore transferred the 75 actions listed on Schedule A to the District of South Carolina and, with the consent of that court, assigned the cases to the Honorable Richard M. Gergel for coordinated or consolidated pretrial proceedings; and denied the motion to transfer the nine actions listed on Schedule B. A full-text copy of the Court's Transfer Order is available at https://bit.ly/2G8lFEz MDL 2874: 3 RAH Patent Lawsuits Transferred to N. Dist. of Calif. ----------------------------------------------------------------- In the case, IN RE: RAH COLOR TECHNOLOGIES LLC PATENT LITIGATION, MDL No. 2874, Judge Sarah S. Vance of the U.S. Judicial Panel on Multidistrict Litigation has entered an order transferring three actions to the Northern District of California and, with the consent of that court, assigned the cases to the Honorable Susan Yvonne Illston for coordinated or consolidated pretrial proceedings. These three actions are: * RAH COLOR TECHNOLOGIES LLC v. ADOBE SYSTEMS, INC., C.A. No. 3:18-03277 in Northern District of California; * RAH COLOR TECHNOLOGIES LLC V. XEROX CORPORATION, C.A. NO. 6:18-06746 in Western District of New York; and * ELECTRONICS FOR IMAGING, INC. V. RAH COLOR TECHNOLOGIES LLC, C.A. No. 18-01436 in Eastern District of Virginia. On October 1, 2018, accused infringer Quad/Graphics, Inc., filed a motion under 28 U.S.C. Sec. 1407 to centralize this patent litigation in the Northern District of California or, alternatively, the Eastern District of Wisconsin. Originally, there were four actions on the motion, including one infringement action in the Eastern District of Wisconsin against Quad/Graphics. By the time of oral argument, the Quad/Graphics action was settled and dismissed. The issue of centralization remains a live issue among the parties to the three remaining actions. The patentholder, RAH Color Management Technologies LLC (RAH), supports centralization of these three actions in the Northern District of Illinois. Accused infringers Xerox Corporation and Electronics for Imaging, Inc. (EFI) support centralization in the Northern District of California. Accused infringer Adobe Systems, Inc., initially supported centralization in the Northern District of California, but at oral argument, argued that centralization was not warranted given the dismissal of Quad/Graphics and, alternatively, requested the Northern District of California. On the basis of the papers filed and the hearing session held, Judge Vance finds that the actions on Schedule A involve common questions of fact, and that centralization in the Northern District of California will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation. All actions involve factual questions about the alleged infringement, validity, and enforceability of nine related patents owned by RAH in the field of color management technology, which is used in products such as print servers, printers, and color imaging software. All of the patents have the same inventor, and seven of the nine patents are in the same patent family. Additionally, there is significant overlap in the patents asserted in the actions, as well as the accused products. Centralization will eliminate duplicative discovery, prevent inconsistent pretrial rulings (particularly on claim construction issues), and conserve the resources of the parties, their counsel and the judiciary. The Judge concludes that the Northern District of California is an appropriate transferee district for this litigation. The headquarters of two of the three accused infringers are located in this district, indicating that significant evidence will be located there. Common third-party discovery of certain members of an industry association also is anticipated in this district. Judge Susan Yvonne Illston is an experienced transferee judge with the ability and willingness to manage this litigation efficiently. Judge Vance is confident she will steer this matter on a prudent course. Judge Vance therefore transferred the three actions and pending outside the Northern District of California to the Northern District of California and, with the consent of that court, assigned the cases to Judge Illston for coordinated or consolidated pretrial proceedings. A full-text copy of the Court's December 6, 2018 Transfer Order is available at https://bit.ly/2QONmpU MEDICREDIT INC: Settlement in Raffin Suit Has Final Approval ------------------------------------------------------------ In the case, SHEENA RAFFIN, individually and on behalf of all others similarly situated, Plaintiff, v. MEDICREDIT, INC.; THE OUTSOURCE GROUP, INC. Defendants, Case No. CV 15-4912-MWF (PJWx) (C.D. Cal.), Judge Michael W. Fitzgerald of the U.S. District Court for the Central District of California granted Raffin's (i) Motion for Final Approval of Class Action Settlement and (ii) Motion for Attorneys' Fees, Costs, and Incentive Awards. The Court held a hearing on Nov. 19, 2018, for the Motions and approval of the settlement set forth in the Stipulation of Settlement Agreement of Class Action Claims. On May 11, 2018, the Court entered an Order Granting Preliminary Approval of Settlement, resulting in certification of the provisional Settlement Class of all persons who received telephone calls from Medicredit between June 29, 2014 and Feb. 26, 2015, while physically present in California and using a cellular device with a California area code, and who participated for the first time in a call with a Medicredit agent during that period. It further approved the form of, and directed the parties to provide, the proposed Class Notice to the Class. No objections had been made, timely or otherwise, pursuant to the Class Notice sent to the Settlement Class members, nor did any objectors appear at the time of the hearing. Judge Fitzgerald finds that the Settlement Class is properly certified as a class for settlement purposes only. He also finds that the settlement was entered into in good faith, is fair, reasonable and adequate, and that it satisfies the standards and applicable requirements for final approval of the class action settlement under California law, including the provisions of Rule 23. Upon entry of the Order, the compensation to the participating members of the Settlement Class will be effected pursuant to the terms of the Settlement. The Judge approved the payment (i) of an incentive award to the Plaintiff Raffin, in the amount of $15,000; (ii) of attorneys' fees to the Class Counsel in the sum of $1.65 million, and the reimbursement of litigation expenses in the sum of $123,688.82; and (iii) in an amount commensurate with Epiq Class Action & Claims Solutions, Inc.'s actual costs, and not to exceed $150,000 to Epiq for performance of its settlement claims administration services. Finally, he approved Legal Aid Association of California as the cy pres recipient. Upon completion of administration of the Settlement, the parties will file a declaration setting forth that claims have been paid and that the terms of the settlement have been completed. The Judgment is intended to be a final disposition of the captioned action in its entirety, and is intended to be immediately appealable. A full-text copy of the Court's Nov. 30, 2018 Judgment is available at https://bit.ly/2C1lsz2 from Leagle.com. Sheena Raffin, individually and on behalf of all others similarly situated, Plaintiff, represented by Adrian Robert Bacon -- abacon@toddflaw.com -- Law Offices of Todd Friedman PC & Todd M. Friedman -- tfriedman@toddflaw.com -- Law Office of Todd M Friedman PC. Medicredit, Inc. & The Outsource Group, Inc., Defendants, represented by Brad Dennis Brian -- Brad.Brian@mto.com -- Munger Tolles and Olson LLP, C. Hunter Hayes -- Hunter.Hayes@mto.com -- Munger Tolles and Olson LLP, Erik O. Solverud -- esolverud@spencerfane.com -- Spencer Fane LLP, pro hac vice, Jacob W. Stahl -- jwstahl@debevoise.com -- Debevoise and Plimpton LLP, pro hac vice, Mark R. Yohalem -- Mark.Yohalem@mto.com -- Munger Tolles and Olson LLP, Maura Kathleen Monaghan -- mkmonaghan@debevoise.com -- Debevoise and Plimpton LLP, pro hac vice, Megan D. Meadows -- mmeadows@spencerfane.com -- Spencer Fane LLP, pro hac vice, Michael Robert Doyen -- Michael.Doyen@mto.com -- Munger Tolles and Olson LLP, Scott J. Dickenson -- sdickenson@spencerfane.com -- Spencer Fane LLP, pro hac vice & Amber D. Henry -- ahenry@eisnerlaw.com -- Eisner Jaffe. MEDTRONIC PLC: Pretrial in Sprint Fidelis-Related Suit Ongoing -------------------------------------------------------------- Medtronic Public Limited Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 29, 2018, for the quarterly period ended October 26, 2018, that pretrial proceedings in Sprint Fidelis class action related suit is still ongoing. In 2007, a putative class action was filed in the Ontario Superior Court of Justice in Canada seeking damages for personal injuries allegedly related to the Company's Sprint Fidelis family of defibrillation leads. On October 20, 2009, the court certified a class proceeding but denied class certification on plaintiffs' claim for punitive damages. Pretrial proceedings are underway. No further updates were provided in the Company's SEC report. Medtronic plc develops, manufactures, distributes, and sells device-based medical therapies to hospitals, physicians, clinicians, and patients worldwide. It operates through four segments: Cardiac and Vascular Group, Minimally Invasive Therapies Group, Restorative Therapies Group, and Diabetes Group. The company was founded in 1949 and is headquartered in Dublin, Ireland. MEDTRONIC PLC: Settled 15,100 Pelvic Mesh-Related Claims -------------------------------------------------------- Medtronic Public Limited Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 29, 2018, for the quarterly period ended October 26, 2018, that as of November 1, 2018, the Company had reached agreements to settle approximately 15,100 claims relating to the Pelvic Mesh Litigation. The Company is currently involved in litigation in various state and federal courts against manufacturers of pelvic mesh products alleging personal injuries resulting from the implantation of those products. Two subsidiaries of Covidien supplied pelvic mesh products to one of the manufacturers, C.R. Bard (Bard), named in the litigation. The litigation includes a federal multi-district litigation in the U.S. District Court for the Northern District of West Virginia and cases in various state courts and jurisdictions outside the U.S. Generally, complaints allege design and manufacturing claims, failure to warn, breach of warranty, fraud, violations of state consumer protection laws and loss of consortium claims. In fiscal year 2016, Bard paid the Company $121 million towards the settlement of 11,000 of these claims. In May 2017, the agreement with Bard was amended to extend the terms to apply to up to an additional 5,000 claims. That agreement does not resolve the dispute between the Company and Bard with respect to claims that do not settle, if any. As part of the agreement, the Company and Bard agreed to dismiss without prejudice their pending litigation with respect to Bard's obligation to defend and indemnify the Company. The Company estimates law firms representing approximately 15,800 claimants have asserted or may assert claims involving products manufactured by Covidien's subsidiaries. As of November 1, 2018, the Company had reached agreements to settle approximately 15,100 of these claims. Medtronic plc develops, manufactures, distributes, and sells device-based medical therapies to hospitals, physicians, clinicians, and patients worldwide. It operates through four segments: Cardiac and Vascular Group, Minimally Invasive Therapies Group, Restorative Therapies Group, and Diabetes Group. The company was founded in 1949 and is headquartered in Dublin, Ireland. MERCY HEALTH: Ohio Court Issues Final Judgment in ERISA Suit ------------------------------------------------------------ In the case, IN RE MERCY HEALTH ERISA LITIGATION, Case No. 1:16-cv-00441-SKB (S.D. Ohio), Magistrate Judge Stephanie K. Bowman of the U.S. District Court for the Southern District of Ohio, Western Division, granted the Parties' motion for approval of the Settlement set forth in the Class Action Settlement Agreement, executed on July 13, 2018. The litigation involves claims for alleged violations of the Employee Retirement Income Security Act of 1974, as amended, ("ERISA"), set forth in the Plaintiffs' Complaint dated Sept. 14, 2017, with respect to the Plans. On Aug. 8, 2018, pursuant to Federal Rule of Civil Procedure 23(a) and (b)(1) or alternatively (b)(2), the Court preliminarily certified the Settlement Class of all present or past participants of the Plans (both vested and non-vested) or beneficiaries of the Plans as of the Effective Date of the Settlement. The Court appointed David Lupp, Janet Whaley, Leslie Beidelman, Patricia Blockus, Charles Bork, Marilyn Gagne, Karl Mauger, Patricia Mauger, Beth Zaworski, Nancy Zink, Mary Alban, and Linda Derrick as the Class Representatives; and Izard, Kindall & Raabe LLP and Kessler Topaz Meltzer & Check, LLP as the Class Counsel and Strauss Troy Co., LPA as the Liaison Counsel. It directed that the Class Notice be given pursuant to the notice program proposed by the Parties and approved by the Court. In accordance with the Court's Preliminary Approval Order and the Court-appointed notice program: (1) on Aug. 23, 2018, the Class Counsel posted the Settlement Agreement and Class Notice to the Settlement website: http://ikrlaw.com/file/mercy-health/;and (2) on or Aug. 29, 2018, the Defendants caused to be mailed approximately 37,433 copies of the Notice of Class Action Settlement to members of the Settlement Class. On Oct. 1, 2018, in accordance with the Court's Sept. 27, 2018 Order, the Defendants caused an additional 4,459 members of the Settlement Class. The matter came before the Court for a hearing pursuant to Federal Rule of Civil Procedure 23(e) on the application of the Parties for approval of their Settlement Agreement. The Settlement provides that, for a period of nine years after the effective date of the Settlement, Mercy Health will (i) guarantee (and ensure that any successor of Mercy Health will guarantee) that the trust funds for each of the Plans will have sufficient funds to pay the benefits that are due; (ii) makes a Plan summary available to Settlement Class Members electronically; (iii) makes up-to-date information concerning Plan benefits, including information about accrued and projected benefits, available to Settlement Class Members either through a toll-free number, a website or a printed statement. Furthermore, the Defendants will pay $450 to certain defined Settlement Class Members who took voluntary lump-sum distributions of a traditional annuity benefit from the Mercy Health Partners-Northern Region Retirement Plan, the Mercy Health Partners of Greater Cincinnati Retirement Plan or the St. Rita's Medical Center Retirement Plan during the time period from Jan. 1, 2011 through Feb. 27, 2018. In exchange, the Plaintiffs and the Settlement Class will provide a release of claims. Having considered the Settlement Agreement, all papers filed and proceedings held, Magistrate Judge Bowman finds that the Parties' proposed Settlement is fair, reasonable, and adequate. She approved and adopted the Settlement. The Magistrate dismissed with prejudice the Action and all Released Claims identified in Section 4 of the Settlement Agreement against each and all Releasees and without costs to any of the Parties as against the others. She ordered that on the Effective Date of the Settlement Agreement, the Class Representatives, as well as the members of the Settlement Class, release any and all actual or potential claims, actions, causes of action, demands, obligations, liabilities, attorneys' fees, expenses and costs under federal or state laws arising out of the allegations of the Complaint that were brought or could have been brought as of the date of the Settlement Agreement by any member of the Settlement Class. The Class Counsel is awarded attorneys' fees pursuant to Federal Rule of Civil Procedure 23(h), in the amount of $779,531.20, and 46,468.80 in reimbursement of the Class Counsel's reasonable expenses incurred in prosecuting the Action. All fees and expenses paid to the Class Counsel will be paid pursuant to the timing requirements described in the Settlement Agreement. She also ganted in the amount of $2,000 each the Class Counsel's motion for Case Contribution Awards to the Settlement Class Representatives. She finds that no reason exists for delay in ordering final judgment, and the Clerk is directed to enter the Judgment forthwith. A full-text copy of the Court's Nov. 28, 2018 Order is available at https://is.gd/bpB1SL from Leagle.com. David Lupp, Individually and on behalf of himself and all others similarly situated, Plaintiff, represented by Julie Siebert-Johnson, Kessler Topaz Meltzer & Check, LLP, pro hac vice, Robert R. Sparks -- rrsparks@strausstroy.com -- Strauss Troy Co., LPA, Douglas P. Needham -- dneedham@ikrlaw.com -- Izard Nobel LLP, pro hac vice, Mark K. Gyandoh -- mgyandoh@ktmc.com -- Kessler Topaz Meltzer & Check LLP, pro hac vice, Mark P. Kindall -- mkindall@ikrlaw.com -- Izard, Kindall & Raabe LLP, pro hac vice, Robert A. Izard -- rizard@ikrlaw.com -- Izard Nobel LLP, pro hac vice & Ronald Richard Parry , Strauss Troy. Janet Whaley, Leslie Beidleman, Patricia K Blockus, Charles Bork, Marilyn Gagne, Patricia Mauger & Nancy Zink, Consol Plaintiffs, represented by Mark P. Kindall, Izard, Kindall & Raabe LLP, Mark Wayne Napier, Freking Myers & Reul LLC, Michelle C. Yau, Cohen Milstein Sellers & Toll PLLC, pro hac vice, Havila C. Unrein, Keller Rohrback L.L.P., pro hac vice, Jamie L. Bowers, Cohen Milstein Sellers & Toll PLLC, pro hac vice, Karen L. Handorf, Cohen Milstein Sellers & Toll PLLC, pro hac vice, Laura R. Gerber, Keller Rohrback L.L.P., pro hac vice, Lynn Lincoln Sarko , Keller Rohrback LLP, pro hac vice, Ron Kilgard, Keller Rohrback L.L.P., pro hac vice, Scott M. Lempert, Cohen Milstein Sellers & Toll PLLC, pro hac vice & Thomas R. Theado, Gary Naegele & Theado, LLC. Karl Mauger, Consol Plaintiff, represented by Mark P. Kindall, Izard, Kindall & Raabe LLP, Mark Wayne Napier, Freking Myers & Reul LLC, Michelle C. Yau, Cohen Milstein Sellers & Toll PLLC, pro hac vice, Havila C. Unrein, Keller Rohrback L.L.P., pro hac vice, Jamie L. Bowers, Cohen Milstein Sellers & Toll PLLC, pro hac vice, Karen L. Handorf, Cohen Milstein Sellers & Toll PLLC, pro hac vice, Laura R. Gerber, Keller Rohrback L.L.P., pro hac vice, Lynn Lincoln Sarko , Keller Rohrback LLP, pro hac vice, Ron Kilgard, Keller Rohrback L.L.P., pro hac vice, Scott M. Lempert, Cohen Milstein Sellers & Toll PLLC, pro hac vice & Thomas R. Theado, Gary Naegele & Theado, LLC. Beth Zaworski, Consol Plaintiff, represented by Mark P. Kindall, Izard, Kindall & Raabe LLP, Mark Wayne Napier, Freking Myers & Reul LLC, Michelle C. Yau, Cohen Milstein Sellers & Toll PLLC, pro hac vice, Havila C. Unrein, Keller Rohrback L.L.P., pro hac vice, Jamie L. Bowers, Cohen Milstein Sellers & Toll PLLC, pro hac vice, Karen L. Handorf, Cohen Milstein Sellers & Toll PLLC, pro hac vice, Laura R. Gerber, Keller Rohrback L.L.P., pro hac vice, Lynn Lincoln Sarko , Keller Rohrback LLP, pro hac vice, Ron Kilgard, Keller Rohrback L.L.P., pro hac vice, Scott M. Lempert, Cohen Milstein Sellers & Toll PLLC, pro hac vice & Thomas R. Theado, Gary Naegele & Theado, LLC. Mary Alban, Consol Plaintiff, represented by Mark P. Kindall, Izard, Kindall & Raabe LLP, Mark Wayne Napier, Freking Myers & Reul LLC, Laura R. Gerber, Keller Rohrback L.L.P. & Thomas J. McKenna, pro hac vice. Linda Derrick, Consol Plaintiff, represented by Mark P. Kindall, Izard, Kindall & Raabe LLP. Mercy Health & Mercy Health Partners Retirement Plan Committee, Defendants, represented by Howard Shapiro -- howshapiro@proskauer.com -- Proskauer Rose LLP, pro hac vice, Jennifer Orr Mitchell -- jennifer.mitchell@dinsmore.com -- Dinsmore & Shohl, Brian Scott Sullivan -- brian.sullivan@dinsmore.com -- Dinsmore & Shohl, Lindsey Chopin -- lchopin@proskauer.com -- Proskauer Rose LLP, pro hac vice, Madeline Chimento Rea, Proskauer Rose LLP, pro hac vice & Stacey C.S. Cerrone -- scerrone@proskauer.com -- Proskauer Rose LLP, pro hac vice. United States of America, Movant, represented by Emily Sue Newton, United States Department of Justice. MERIDIAN BIOSCIENCE: Bid to Drop Forman Class Suit Still Pending ---------------------------------------------------------------- Meridian Bioscience Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on November 29, 2018, for the fiscal year ended September 30, 2018, that the motion to dismiss filed in the class action suit initiated by Barbara Forman has been fully briefed and remains pending before the court. On November 15, 2017, Barbara Forman filed a class action complaint in the United States District Court for the Southern District of Ohio naming Meridian, its Chief Executive Officer and Chief Financial Officer (in their capacities as such) as defendants. An amended complaint was filed on April 16, 2018 and the Company believes the essential elements of the amended complaint are the same. The complaint and the amended complaint are hereafter referred to as the "Complaint". The Complaint seeks compensatory damages and attorneys' fees. Meridian has filed a motion to dismiss the Complaint, to which the plaintiff responded on August 14, 2018. The motion has been fully briefed and remains pending before the court. Meridian Bioscience said, "We are unable to determine or predict the ultimate outcome or estimate the range of possible losses, if any. Accordingly, no provision for litigation losses has been included within the accompanying Consolidated Statement of Operations for fiscal 2018 or 2017." Meridian Bioscience Inc., an integrated life science company, manufactures, develops, sells, and distributes diagnostic test kits. These are used primarily for respiratory, gastrointestinal, viral, and parasitic infectious diseases. Meridian, founded in 1976, is based in Cincinnati. MIDLAND CREDIT: Olivia Sues Over Illegal Debt Collection -------------------------------------------------------- Ronald Olivia, Plaintiff, v. Midland Credit Management, Inc., Midland Funding LLC, and Encore Capital Group, Inc. Defendants, Case No. 1:18-cv-07895 (N.D. Ill., November 29, 2018) is a putative class action brought pursuant to the Fair Debt Collection Practices Act to remedy Defendants' unlawful conduct relative their attempts to collect time-barred consumer debt through form debt collection letters that are purposefully drafted, formatted and worded to deceive and mislead consumers about their rights relative to time-barred debt. As the United States Consumer Financial Protection Bureau ("CFPB") recognized in a recent remedial action against these Defendants, consumers do not have a legally enforceable obligation to pay debt that is beyond the applicable statute of limitations, notes the complaint. MCM sent a form collection letter to Plaintiff at a Chicago based address in an effort to collect a debt allegedly owed at one point in time to Citibank. The March 7, 2018 collection letter states that Plaintiff MCM was attempting to collect a debt which was now owed to Midland. Documentation in the possession, custody or control of one or more of the Defendants demonstrates that the Subject Debt is time-barred under Illinois law. To avoid explaining to consumers that consumers do not have a legally enforceable obligation to pay debt that is beyond the applicable statute of limitations, one or more of the Defendants purposefully drafted, formatted and worded the March 7, 2018 form collection letter for the purpose of deceiving and misleading Plaintiff and other consumers about their rights relative to time-barred debt, the complaint relates. The Defendants violated the FDCPA by threatening to credit report Plaintiff and other similarly situated persons despite the fact that the time-period in which Defendants may lawfully report the debts had expired, says the complaint. Plaintiff Ronald Oliva is natural person residing in the Northern District of Illinois. Midland Credit Management, Inc. is incorporated in the State of Kansas and its principal place of business is located in San Diego, California 92108. MCM is a subsidiary of Encore. Midland Funding LLC is incorporated in the State of Delaware and its principal place of business is located in San Diego, California 92108. Encore Capital Group, Inc. is a Delaware Corporation. Encore describes itself as an international specialty finance company with operations and investments in 17 countries.[BN] The Plaintiff is represented by: James C. Vlahakis, Esq. Mohammed Badwan, Esq. Joseph Davidson, Esq. SULAIMAN LAW GROUP, LTD. 2500 South Highland Avenue, Suite 200 Lombard, IL 60148 Phone: (630) 575-8181 Facsimile: (630) 575-8188 Email: jvlahakis@sulaimanlaw.com MISSOURI: Gasca Moves for Certification of Adult Parolees Class --------------------------------------------------------------- The Plaintiffs in the lawsuit titled STEPHANIE GASCA, et al. v. ANNE PRECYTHE, et al., Case No. 2:17-cv-04149-SRB (W.D. Mo.), ask the Court to certify a class of plaintiffs defined as: all adult parolees in the state of Missouri who currently face, or who in the future will face, parole revocation proceedings. Anne Precythe is the Director of the Missouri Department of Corrections. The Plaintiffs also ask the Court to appoint Mildred Curren, Timothy Gallagher, Stephanie Gasca, Kenneth Hemphill, Jesse Neely, Soloman Warren, and Amber Wyse as class representatives, and to appoint Locke E. Bowman, Esq., Sheila A. Bedi, Esq., and Amy E. Breihan, Esq., as class counsel.[CC] The Plaintiffs are represented by: Amy E. Breihan, Esq. RODERICK AND SOLANGE MACARTHUR JUSTICE CENTER 3115 South Grand Blvd., Suite 300 St. Louis, MO 63118 Telephone: (314) 254-8540 Facsimile: (314) 254-8547 E-mail: amy.breihan@macarthurjustice.org - and - Locke E. Bowman, Esq. Sheila A. Bedi, Esq. NORTHWESTERN PRITZKER SCHOOL OF LAW 375 East Chicago Avenue Chicago, IL 60611 Telephone: (312) 503-1271 E-mail: l-bowman@law.northwestern.edu sheila.bedi@law.northwestern.edu MOBILE DIRECT: Strange Files Tort Class Suit in Cal. Super. Ct. --------------------------------------------------------------- A class action lawsuit has been filed against Mobile Direct Response. The case is styled as Terry Strange and on behalf of all others similarly situated, Plaintiff v. Mobile Direct Response, Does 1-100, Defendants, Case No. 34-2018-00245494-CU-BT-GDS (Cal. Super. Ct., Sacramento Cty., Nov. 29, 2018). The case type is stated as "Business Tort". Mobile Direct Response transforms traditional one-way advertising like Outdoor and Print into interactive, trackable media, allowing it to compete with Online.[BN] The Plaintiff is represented by Mark A Redmond, Esq. MONSANTO COMPANY: Perry Sues over Sale of Herbicide Roundup ----------------------------------------------------------- WILLIAM PERRY, the Plaintiff, v. MONSANTO COMPANY, the Defendant, Case No. 4:18-cv-01983 (E.D. Mo., Nov. 27, 2018), seeks to recover damages suffered by Plaintiff, as a direct and proximate result of the Defendant's negligent and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, advertising, distribution, labeling, and/or sale of the herbicide Roundup (TM), containing the active ingredient glyphosate. The Plaintiff maintains that Roundup (TM) and/or glyphosate is defective, dangerous to human health, unfit and unsuitable to be marketed and sold in commerce, and lacked proper warnings and directions as to the dangers associated with its use. The Plaintiffs' injuries, like those striking thousands of similarly situated victims across the country, were avoidable. The Plaintiff brings this action for personal injuries sustained by exposure to Roundup (TM), which contains the active ingredient glyphosate and the surfactant polyethoxylated tallow amine (POEA). As a direct and proximate result of being exposed to Roundup, the Plaintiff developed diffuse Non-Hodgkin's Lymphoma. Roundup refers to all formulations of Defendant's Roundup products, including, but not limited to, Roundup Concentrate Poison Ivy and Tough Brush Killer 1, Roundup Custom Herbicide, Roundup D-Pak Herbicide, Roundup Dry Concentrate, Roundup Export Herbicide, Roundup Fence & Hard Edger 1, Roundup Garden Foam Weed & Grass Killer, Roundup Grass and Weed Killer, Roundup Herbicide, Roundup Original 2k Herbicide, Roundup Original II Herbicide, Roundup Pro Concentrate, Roundup Pro Dry Herbicide, and Roundup Promax.[BN] The Plaintiff is represented by: D. Todd Mathews, Esq. Joseph B. Carnduff, Esq. GORI JULIAN LAW 156 N. Main St. Edwardsville, IL 62025 Telephone: (618) 659-9833 Facsimile: (618) 659-9834 E-mail: todd@gorijulianlaw.com jcarnduff@gorijulianlaw.com NATIONWIDE CREDIT: Violates FDCPA, Walston Suit Says ---------------------------------------------------- A class action lawsuit has been filed against Nationwide Credit, Inc. The case is styled as Rashad W. Walston on behalf of himself and all others similarly situated, Plaintiff v. Nationwide Credit, Inc., Defendant, Case No. 1:18-cv-07877 (N.D. Ill., Nov. 29, 2018). The Plaintiff filed the case under the Fair Debt Collection Practices Act. Nationwide Credit, Inc., is a collection agency, providing customer relationship and accounts receivable management services. The company specializes in collecting delinquent and defaulted accounts.[BN] The Plaintiff is represented by: Nathan Charles Volheim, Esq. Sulaiman Law Group, Ltd. 2500 S. Highland Avenue, Suite 200 Lombard, IL 60148 Phone: (630) 575-8181 ext 113 Email: nvolheim@sulaimanlaw.com ONE TECHNOLOGIES: 5th Cir. Flips Arbitration Ruling in Forby Suit ----------------------------------------------------------------- In the case, VICKIE FORBY, individually and on behalf of all others similarly situated in Illinois, Plaintiff-Appellant, v. ONE TECHNOLOGIES, L.P., ONE TECHNOLOGIES MANAGEMENT, L.L.C.; ONE TECHNOLOGIES CAPITAL, L.L.P., Defendants-Appellees, Case No. 17-10883 (5th Cir.), Judge Alfred H. Bennett of the U.S. Court of Appeals for the Fifth Circuit reversed the district court's grant of Defendant-Appellee One Tech's motion to compel arbitration. On April 24, 2015, Forby filed a class action in Illinois state court that was later removed to the U.S. District Court for the Southern District of Illinois on July 14, 2015. Forby brought claims against One Tech for violation of the Illinois Consumer Fraud and Deceptive Business Practices Act ("ICFA") and unjust enrichment under Illinois law. In the notice of removal, One Tech did not reference arbitration but rather argued that Forby's claims were baseless, and that no class should be certified. On July 21, 2015, it filed a motion to dismiss for failure to state a claim and, in the alternative, moved to transfer the case for forum non conveniens, arguing that Forby's claims were subject to arbitration in Texas and that an Illinois district court could not compel arbitration outside of the confines of its district. On Sept. 4, 2015, One Tech filed an opposed motion to stay discovery until the Illinois district court ruled on the motion to dismiss. On March 25, 2016, the Illinois district court issued a Memorandum and Order transferring the case to the Northern District of Texas. After the case was transferred, One Tech retained new counsel, who filed an unopposed extension of time to answer the complaint to investigate Forby's claims and prepare an appropriate response. On May 9, 2016, One Tech filed a 12(b)(6) motion to dismiss, asking the Texas district court to dismiss all of Forby's claims with prejudice. The motion to dismiss did not mention arbitration. Forby filed her response to One Tech's motion to dismiss. In its reply to Forby's response, One Tech once again did not mention compelling arbitration. On March 31, 2017, the district court denied the motion to dismiss with respect to Forby's ICFA claim concerning the deceptiveness of One Tech's website and granted the motion as to the unjust enrichment claim -- dismissing that claim with prejudice. On April 17, 2017, four days after attending a Rule 26(f) conference and receiving Forby's requests for production, One Tech finally filed its motion to compel arbitration. Additionally, that same day, it filed an expedited motion to stay all discovery pending the resolution of the motion to compel. On April 24, 2017, the district court conducted a hearing and granted the motion to stay. On July 7, 2017, the district court issued an order granting One Tech's motion to compel arbitration and dismissed the case with prejudice. The district court found that One Tech had substantially invoked the judicial process but that Forby had not suffered prejudice. Forby now appeals the decision of the district court. Forby contends that the district court erred in finding she was not prejudiced by One Tech's substantial invocation of the judicial process. Judge Bennett finds that One Tech sought a full dismissal on the merits -- prejudice attaches to a Rule 12(b)(6) dismissal. Its conduct thus fits squarely within the caselaw recognizing that the judicial process is invoked when a party seeks a decision on the merits before attempting to arbitrate. Accordingly, the district court was correct in finding One Tech substantially invoked the judicial process. The Judge also finds that Forby's legal position was damaged by One Tech's delay in moving to compel arbitration. Accordingly, the district court erred in finding Forby was not prejudiced. When a party will have to re-litigate in the arbitration forum an issue already decided by the district court in its favor, that party is prejudiced. If the instant case were to proceed to arbitration, Forby would have to re-litigate whether One Tech's website was deceptive in front of an arbitrator after One Tech already tested its arguments with a district court judge. For the foregoing reasons, the district court's determination that One Tech did not waive its right to arbitration was in error. The Judge holds that One Tech substantially invoked the judicial process and that Forby was prejudiced thereby. Accordingly, he reversed the order of the district court finding Forby had not suffered enough prejudice to establish waiver. The district court's order granting One Tech's motion to compel arbitration is vacated and the case is remanded to the district court for further proceedings consistent with the Judge's Opinion. A full-text copy of the Court's Nov. 28, 2018 Opinion is available at https://is.gd/iC0TWO from Leagle.com. Scott Lawrence Nelson, for Plaintiff-Appellant. Brian Edward Robison -- brobison@gibsondunn.com -- for Defendant-Appellee. Christopher John Schwegmann -- cjs@lynnllp.com -- for Defendant-Appellee. Russell Harris Falconer -- rfalconer@gibsondunn.com -- for Defendant-Appellee. Andrew Patrick LeGrand -- alegrand@gibsondunn.com -- for Defendant-Appellee. Jonathan Ryan Childers -- jchilders@lynnllp.com -- for Defendant-Appellee. Adam R. Pulver, for Plaintiff-Appellant. Edwin J. Kilpela -- ekilpela@carlsonlynch.com -- for Plaintiff-Appellant. Kevin Abramowicz -- contact@carlsonlynch.com -- for Plaintiff-Appellant. OUTLAW LABORATORIES: Court Narrows Claims in "Rhino" Suit --------------------------------------------------------- In the case, IN RE OUTLAW LABORATORIES, LP LITIGATION, Case No. 3:18-cv-840-GPC-BGS, No. 3:18-CV-1882-GPC-BGS (S.D. Cal.), Judge Gonzalo P. Curiel of the U.S. District Court for the Southern Distric of California (i) granted in part and denied in part Outlaw's mtion to dismiss the counterclaims; and (ii) denied Outlaw's motion to strike the Counterclaimants' third cause of action for rescission pursuant to California Code of Civil Procedure Section 425.16. Outlaw is a Texas-based manufacturer of male-enhancement products called "TriSteel" and "TriSteel 8 hour." Its products are made in the United States and distributed for sale in all 50 states, and are claimed to be in compliance with the Dietary Supplement Health and Education Act. According to Counterclaimants, Outlaw was formed in Texas in September 2016. Sometime starting in 2017 and continuing through 2018, Outlaw, through its attorneys at Tauler Smith LLP, began mailing demand letters to proprietors of gas stations, liquor stores, and corner stores in California, and beyond. Those recipients allegedly sold male-enhancement pills designated by the word "Rhino," which Outlaw alleges contain undisclosed sildenafil, a prescription pharmaceutical regulated by the FDA. Outlaw's demand letters warned recipients that they were selling illegal sexual enhancement drugs, which subject their company to legal action for racketeering under Racketeer Influenced Corrupt Organizations ("RICO") and the Federal Lanham Act, and obligate them to pay to Outlaw profits from the sale of Illicit Products dating back four years, attorney's fees, punitive damages, and triple damages. The letter estimates the recipients' liabilities at "over $100,000" but states that Outlaw is willing to settle all claims in exchange for a one-time settlement agreement, $9,765, and their agreement to stop selling the Illicit Products. The letters conclude by warning that if the matter is not fully resolved before a date typically within 30 days, that a lawsuit will be filed against the recipient. Some recipients, like Third-Party Plaintiff Skyline Market, Inc., acquiesced to the demand letter and settled with Outlaw. Others, like Defendants Roma Mikha, Inc., and NMRM, Inc., resisted. True to its word, on July 24, 2018, Outlaw filed a complaint in San Diego Superior Court against a high volume of defendants, all of whom it had previously mailed a demand letter. Roma Mikha, Inc. was named in the complaint; NMRM, Inc., was not. On Aug. 12, 2018, Roma Mikha, Inc. removed the action to federal court. Thereafter, on Aug. 24, 2018, Roma Mikha, NMRM, and Skyline Market, Inc. filed a Third Party Complaint ("Cross-Complaint") against Outlaw. Their Cross-Complaint alleges a class action against Outlaw for (1) civil RICO violation,, (2) RICO conspiracy,and (3) rescission of any settlement agreements like the one entered into by Skyline Market. With respect to the RICO counts, the Counterclaimants allege a RICO enterprise between Outlaw, Tauler Smith, and other as-yet-unnamed individuals, aimed at perfecting a legal "shakedown" of small-time San Diego convenience stores. They claim that the "TriSteel" products were created as artifices to found the false advertising claims, and that Outlaw itself is no more than a front for the unlawful enterprise. In response, Outlaw moved to dismiss all claims asserted in the Cross-Complaint. It also has moved to strike the third cause of action for rescission pursuant to California's anti-SLAPP law. Outlaw has moved to dismiss Counterclaimant's RICO-based causes of action on two grounds. First, it argues that that Counterclaimants have failed to identify a specific, materially false representation as would sustain their claim that Outlaw is engaged in the predicate acts of mail fraud. Second, it argues that the Noerr-Pennington doctrine, which immunizes those who petition the government for redress from statutory liability for petitioning conduct, shields it from RICO liability. Outlaw has also moved to dismiss Skyline Market's third cause of action for rescission of its settlement agreement. Skyline Market claims two justifications for rescission: first, that it had not known that its agreement had been predicated upon a scheme to defraud that was illegal ab initio, as set forth above, and in Counts 1 and 2 -- i.e., its RICO claims, and second, that it had signed the settlement agreement under the shadow of a $100,000 lawsuit and threat of duress. Outlaw contends that neither RICO nor economic duress can justify rescission. Judge Curiel recognizes that Counterclaimants have pointed to additional "indicia of sham litigation" in their opposition to Outlaw's motion to dismiss. These allegations, however, do not matter for part one of the PRE II/Kottle analysis. Without demonstrating the objective baselessness of Outlaw's suit, the Counterclaimants cannot proceed to the second part of the PRE II/Kottle analysis. Because the Cunterclaimants have failed to meet their burden of pleading that Outlaw's lawsuit is objectively baseless, the Judge will grant Outlaw's motion to dismiss Counterclaimant's RICO claims. The dismissal applies both to the first RICO cause of action, and the second cause of action for RICO conspiracy. The dismissal will be without prejudice and the Counterclaimants are granted leave to amend. As to the rescission claim, the Judge finds that the Counterclaimants could have availed themselves of the "reasonable alternative" of hiring an attorney to litigate the case. Their failure to do so precludes their cry of economic duress. He finds, however, that Outlaw has sufficiently pleaded that hiring an attorney was not a reasonable alternative. Several of Counterclaimants' allegations (and the reasonable inferences therefrom) suggest why this was so. It might be the case that the Counterclaimants' bid for rescission will ultimately fail. As such, the Judge will deny Outlaw's motion to dismiss the Counterclaimants' claim for rescission. Finally, turning to Outlaw's special motion to strike the Counterclaimants' third cause of action -- rescission -- pursuant to California Code of Civil Procedure Section 425.16, typically referred to as the anti-SLAPP statute, and in the event that it prevails, Outlaw seeks $3,778 in attorneys' fees for efforts spent litigating the anti-SLAPP motion, the Judge will deny Outlaw's motion The Judge finds that the Counterclaimants have somewhat inartfully labeled their request for rescission as a "third cause of action" does not bring them within the ambit of the anti-SLAPP statute. The body of their rescission pleadings announces Skyline Market's intent to seek rescission, as enabled by California Civil Code Section 1691, which provides that the service of a pleading in an action or proceeding that seeks relief based on rescission will be deemed to be notice of rescission. Accordingly, the Judge agrees with the Counterclaimants that Skyline Market's notice of rescission and prayer for equitable relief are not causes of action to which the anti-SLAPP statute may apply. In light of the foregoing, the Court will deny Outlaw's motion to strike and its request for related attorneys' fees. Consistent with the foregoing, Judge Curiel denied in part and granted in part Outlaw's motion to dismiss. The Counterclaimants are granted leave to amend their RICO claims to cure the deficiencies noted by the Court; if they wish to avail themselves of this opportunity, they must submit an amended counterclaim within 30 days of the Order. The Judge further denied Outlaw's motion to strike the Counterclaimants' claim for rescission in its entirety. The motion hearing set for Nov. 30, 2018 is vacated. A full-text copy of the Court's Nov. 27, 2018 Order is available at https://is.gd/xDMQDR from Leagle.com. Outlaw Laboratory, LP, a Texas Limited Partnership, Plaintiff, represented by Matthew J. Smith -- msmith@insurancelawservices.com. Roma Mikha, Inc., a California Corporation, Defendant, represented by Mark Poe -- mpoe@gawpoe.com -- Gaw & Poe LLP, Randolph Gaw, Gaw Poe LLP, Samuel Song -- ssong@gawpoe.com -- Gaw & Poe LLP & Victor Meng -- vmeng@gawpoe.com -- Gaw & Poe LLP. Midway M3, Inc., a California Corporation, Defendant, represented by Mark Poe, Gaw & Poe LLP. Eagle's Nest Property Management, LLC, a California Limited Liability Company, Defendant, represented by Robert Charles Mardian, III -- rmardian@smalawsd.com -- Sullivan, McGibbons & Associates LLP. NMRM, Inc. & Skyline Market, Inc., ThirdParty Plaintiffs, represented by Mark Poe , Gaw & Poe LLP, Randolph Gaw, Gaw Poe LLP, Samuel Song, Gaw & Poe LLP & Victor Meng, Gaw & Poe LLP. Roma Mikha, Inc., a California Corporation, ThirdParty Plaintiff, represented by Mark Poe, Gaw & Poe LLP, Randolph Gaw, Gaw Poe LLP & Victor Meng, Gaw & Poe LLP. Outlaw Laboratory, LP, a Texas Limited Partnership, ThirdParty Defendant, represented by Matthew J. Smith. Roma Mikha, Inc., a California Corporation, Counter Claimant, represented by Mark Poe, Gaw & Poe LLP, Randolph Gaw, Gaw Poe LLP, Samuel Song, Gaw & Poe LLP & Victor Meng, Gaw & Poe LLP. Outlaw Laboratory, LP, a Texas Limited Partnership, Counter Defendant, represented by Matthew J. Smith & Robert Tauler, Tauler Smith LLP. OXNARD SCHOOL: Certification of Students Class Sought in JR Suit ---------------------------------------------------------------- I.H., F.S., W.H., and I.B., some of the Plaintiffs in the lawsuit entitled J.R., a minor, by and through her guardian ad litem, Janelle McCammack, et al. v. OXNARD SCHOOL DISTRICT, et al., Case No. 2:17-cv-04304-JAK-FFM (C.D. Cal.), move the Court for an order certifying their claims as a class action on behalf of: All students in Oxnard School District who have or may have disabilities and who have been or will be subject to the District's policies and procedures regarding identification and evaluation of students for purposes of providing services or accommodations under the Individuals with Disabilities Education Act, Section 504 of the Rehabilitation Act and/or the Americans with Disabilities Act. The Plaintiffs also move for (i) the appointment of Plaintiffs I.H., F.S., W.H., I.B., and Primero Los Ninos as Class Representatives; and (ii) the appointment of Learning Rights Law Center, the Law Office of Shawna L. Parks, and Disability Rights Advocates as Class Counsel. The Court will commence a hearing on February 4, 2019, at 8:30 a.m., to consider the Motion.[CC] The Plaintiffs are represented by: Janeen Steel, Esq. LEARNING RIGHTS LAW CENTER 205 S. Broadway, Suite 808 Los Angeles, CA 90012 Telephone: (213) 489-4035 Facsimile: (213) 489-4033 E-mail: janeen@learningrights.org - and - Stuart Seaborn, Esq. Melissa Riess, Esq. Jessica Agatstein, Esq. DISABILITY RIGHTS ADVOCATES 2001 Center St., 4th Floor Berkeley, CA 94704 Telephone: (510) 665-8644 Facsimile: (510) 665-8511 E-mail: eaborn@dralegal.org mriess@dralegal.org jagatstein@dralegal.org - and - Shawna L. Parks, Esq. LAW OFFICE OF SHAWNA L. PARKS 4470 W. Sunset Blvd., Suite 107-347 Los Angeles, CA 90027 Telephone: (323) 389-9239 E-mail: sparks@parks-law-office.com PATENAUDE & FELIX: Court Dismisses Schultz FDCPA Suit ----------------------------------------------------- In the case, KAREN SCHULTZ, on behalf of herself and all others similarly situated, Plaintiff, v. PATENAUDE & FELIX, A.P.C. and CACH, LLC, Defendants, Civil Action No. 18-489 (W.D. Pa.), Judge Marilyn J. Horan of the U.S. District Court for the Western District of Pennsylvania (i) granted both Defendant Patenaude & Felix, A.P.C.'s Motion to Dismiss and Defendant Cach, LLC's Motion to Dismiss; and (ii) denied as moot both Defendant Patenaude's 12(f) Motion to Strike and Defendant Patenaude & Felix, A.P.C.'s Motion to Strike. Schultz, on behalf of herself and a purported class, filed suit against Patenaude under the Fair Debt Collection Practices Act ("FDCPA") in the Court of Common Pleas of Allegheny County, Pennsylvania. Patenaude timely removed the matter to the Court based on federal question jurisdiction. Following the Initial Case Management Conference, the Plaintiff filed an Amended Class Action Complaint withdrawing two claims and adding Cach, LLC as an additional Defendant. According to the Complaint, the Plaintiff allegedly defaulted on a credit card account issued by Synchrony Bank. Defendant Cach purchased that account and then assigned the account to Defendant Patenaude for the purpose of initiating collection efforts. The Plaintiff alleges both the Defendants are "debt collectors" within the meaning of definition provided by -- and therefore subject to the regulations within -- the FDCPA. The Plaintiff also asserts that Defendant Cach is liable for Defendant Patenaude's actions. According to the Complaint, the Plaintiff received a letter dated Feb. 2, 2018 from Defendant Patenaude informing the Plaintiff of Defendant Cach's assignment of collection duties to Defendant Patenaude. The Plaintiff alleges that the letter failed to adequately inform consumers of how to effectively request cessation of debt collection activities, making the letter a misleading communication and a violation of 15 U.S.C. Section 1692c(c) and Section 1692e(10). She further alleges that the letter is a form collection letter, sent not only to her, but to numerous other consumers across western Pennsylvania. Consequently, the Plaintiff seeks certification as a class action. Defendants Patenaude and Cach each filed a Motion to Dismiss under Fed. R. Civ. P. 12(b)(6). Additionally, Defendant Patenaude moved to strike under Fed. R. Civ. P. 12(f) in relation to the Plaintiff's proposed class definition. The parties filed briefs in thematter, and the Court held a hearing on the Motions on Nov. 27, 2018. Turning first to the Defendants' main argument, Judge Horan agrees that the Plaintiff has not alleged a violation of the FDCPA. Because the Plaintiff relies on Section 1692c(c) as the basis for her Section 1692e(10) claim, and because she does not allege a violation of Section 1692c(c) or otherwise plead facts that allow the court to reasonably infer that the language in the letter is misleading and in violation of Section 1692e(10), the Plaintiff fails to state a claim under Section 1692e(10) for which relief can be granted. Therefore, the Plaintiff's Complaint will be dismissed under Fed. R. Civ. P. 12(b)(6). Finally, based on the foregoing reasoning, the Judge does not reach Defendant Cach's argument that the Plaintiff failed to adequately allege that Defendant Cach is a "debt collector," and therefore a proper defendant, under the FDCPA. Likewise, she does not reach the issue of whether the Plaintiff has standing to bring her claims. Because the Plaintiff failed to state a claim for which relief may be granted and her Complaint is dismissed accordingly under Fed. R. Civ. P. 12(b)(6), the Defendant Patenaude's 12(f) Motion to Strike will be denied as moot. Based on the foregoing, Judge Horan graned Defendant Patenaude & Felix, A.P.C.'s Motion to Dismiss and Defendant Cach, LLC's Motion to Dismiss, and dismissed the Plaintiff's Complaint. She denied as moot Defendant Patenaude & Felix, A.P.C.'s Motion to Strike. A full-text copy of the Court's Nov. 30, 2018 Opinion and Order is available at https://bit.ly/2Qk1tnM from Leagle.com. KAREN SCHULTZ, on behalf of herself and all others similarly situated, Plaintiff, represented by Clayton S. Morrow -- cmorrow@allconsumerlaw.com -- Morrow & Artim, PC & Jeffrey L. Suher -- jls@dellmoser.com. PATENAUDE & FELIX, A.P.C., Defendant, represented by Daniel R. Bentz -- dbentz@moodklaw.com -- Marks, O'Neill, O'Brien, Doherty & Kelly & Thomas Pie, Jr. -- TPie@moodklaw.com -- Marks, O'Neill, O'Brien, Doherty & Kelly, P.C. CACH, LLC, Defendant, represented by Jessica Lucas -- jlucas@grsm.com -- Gordon & Rees LLP & Mark J. Golen, II -- mgolen@grsm.com -- Gordon & Rees LLP. PORSCHE CARS: Padilla Sues Over Defective Cooling System -------------------------------------------------------- Santiago Padilla and Murray L. Shames, individually and on behalf of all others similarly situated, Plaintiffs, v. Porsche Cars North America, Inc., a Delaware corporation, Defendant, Case No. 1:18-cv-24988-FAM (S.D. Fla., November 29, 2018) seeks to address a persistent safety-related defect in the design and manufacture of the engine cooling system components in Panamera Vehicles and Cayenne Vehicles, including the use of adhesive to secure the slip-fit connection that joins the coolant pipes to the body of the thermostat housing unit assembly. The engine cooling systems in the Defective Vehicles are materially the same and the Cooling System Defect exists in all Defective Vehicles, regardless of driving conditions or compliance with Defendant's recommended maintenance schedule, says the coomplaint. The Defective Vehicles are sold on the promise that they are high-end performance vehicles, engineered and manufactured using cutting edge technology and materials, "advanced engineering, rigid quality control and demanding inspections". Yet, contrary to these promises and the reasonable consumer expectations of Plaintiffs and the Class, Porsche failed to implement these alternative, safer designs in the Defective Vehicles, leaving Plaintiffs and the Class to bear the risks of the Cooling System Defect that Porsche created. Plaintiff Santiago Padilla is a resident of Aventura, Florida in Miami-Dade County. In 2013, Plaintiff Padilla purchased a model year 2011 Porsche Panamera, equipped with a V8 engine, from The Collection Porsche dealership in Miami, Florida. Plaintiff Murray L. Shames is a resident of Hillsborough County, Florida. In 2014, Plaintiff Shames purchased a 2011 Cayenne S, equipped with a V8 engine from Carmax in Tampa, Florida. Porsche Cars North America, Inc. is incorporated in the State of Delaware and is headquartered in Atlanta, Georgia. Porsche, as the importer and distributor of Porsche vehicles for the United States, sold, marketed, distributed, and serviced the Defective Vehicles.[BN] The Plaintiffs are represented by: T. Michael Morgan, Esq. MORGAN & MORGAN, P.A. 20 North Orange Avenue, Suite 1600 Orlando, FL 32801 Phone: (407) 420-1414 Fax: (407) 641-5846 Email: mmorgan@forthepeople.com - and - Timothy G. Blood, Esq. Paula R. Brown, Esq. Aleksandr J. Yarmolinets, Esq. BLOOD HURST & O'REARDON, LLP 501 West Broadway, Suite 1490 San Diego, CA 92101 Phone: (619) 338-1100 Fax: (619) 338-1101 Email: tblood@bholaw.com pbrown@bholaw.com ayarmolinets@bholaw.com - and - Ray P. Boucher, Esq. Maria L. Weitz, Esq. RAY BOUCHER LLP 26100 Oxnard Street, Suite 600 Woodland Hills, CA 91367 Phone: (818) 340-5400 Fax: (818) 340-5401 Email: ray@boucher.la weitz@boucher.la PORTFOLIO RECOVERY: Court Certifies Class in Bereket FDCPA Suit --------------------------------------------------------------- In the case, ABBY BEREKET, individually and on behalf of all others similarly situated, Plaintiff, v. PORTFOLIO RECOVERY ASSOCIATES, LLC and JOHN DOES 1-25, Defendants, Case No. C17-812 RSM (W.D. Wash.), Judge Ricardo S. Martinez of the U.S. District Court for the Western District of Washington, Seattle, (i) granted the Plaintiff's Motion for Class Certification, and (ii) denied the Defendant's Motion for Leave to File Counterclaim and Third-Party Complaint. Defendant Portfolio bought certain debts from Bank of America and sent letters to the debtors attempting to collect on those debts. On Aug. 23, 2016, the Plaintiff received such a letter from the Defendant which attempted to collect on the Plaintiff's Bank of America debt that she had not made payment on since Aug. 18, 2010. Due to the timing of the last payment, the applicable statute of limitations -- 6 years in Washington -- had expired before the Plaintiff received the letter. The Plaintiff initiated the lawsuit on his own behalf and on behalf of those similarly situated. She defines the class -- purportedly consisting of 243 individuals -- as (a) all individuals with a Washington State address (b) to whom Defendant mailed an unlawful collection letter (c) from May 24, 2016 to the present (d) in an attempt to collect a debt on behalf of Bank of America (e) more than six years after the last payment was made on that debt. The Plaintiff alleges that the Defendant's debt collection practices violate the Fair Debt Collections Practices Act ("FDCPA") and seeks to certify a class of all Washington residents affected by the allegedly unlawful practices. The Defendant argues that the Plaintiff and his counsel are not the adequate class representatives because of the Plaintiff's fraudulent actions prior to filing suit. The Defendant, in the course of discovery, discovered that the Plaintiff engaged a third-party credit repair agency to attempt to get its account -- and numerous others -- removed from the Plaintiff's credit report. The Defendants discovered that various letters it received -- purportedly from the Plaintiff -- were actually from the third-party and that the letters contained numerous misrepresentations. The Defendant seeks leave to sue for damages caused by the Plaintiff's and the third-party's fraud. The Plaintiff responds that he's not responsible for the prior letters, that the activities should not disqualify him in the action, and that the Defendant's claims cannot be pursued in the Court. The matter is before the Court on the Plaintiff's Motion for Class Certification and the Defendant's Motion for Leave to File Counterclaim and Third-Party Complaint. The Defendant seeks to amend its Answer to assert a counterclaim of fraud against the Plaintiff and a third-party complaint for fraud and unfair business practices against Cobalt. These claims are premised upon the letters Cobalt sent to credit reporting agencies and the Defendant. The Plaintiff opposes the motion on the basis that amendment would be futile because the Court lacks jurisdiction over the Defendant's claims. Both parties have requested oral argument, but the Court finds it unnecessary to its resolution of the Motions. After considering the Motions and the record, Judge Martinez granted the Plaintiff's Motion and denied the Defendant's Motion. The Judge finds that finds that the Defendant's claims are not part of the same case or controversy as its claims do not share a common nucleus of operative facts with the Plaintiff's federal action. As the Plaintiff notes, his claim depends on the language included in the Defendant's collection letter. The Defendant's claims depend on the language included in letters sent to it and credit reporting agencies and the truth of the statements therein. There does not appear to be any overlap and proof of one claim does not impact resolution of the other. Because he finds that the Defendant's claims do not fall within the Court's supplemental jurisdiction, the Judge holds he needs not consider whether it should decline to exercise supplemental jurisdiction under 28 U.S.C. Section 1367(c). As to the Plaintiff's Motion for Class Certification, the Judge finds that (i) the class satisfies the requirements of Rule 23(a); (ii) the Plaintiff is sufficiently credible and knowledgeable; the Plaintiff's counsel is adequate; and (iv) the class certification is appropriate under Rule 23(b)(3). A full-text copy of the Court's Nov. 30, 2018 Order is available at https://bit.ly/2QOKJVq from Leagle.com. bby Bereket, individually and on behalf of all others similarly situated, Plaintiff, represented by Ari Marcus -- Ari@MarcusZelman.com -- MARCUS & ZELMAN, LLC, pro hac vice, Yitzchak Zelman -- Yzelman@MarcusZelman.com -- MARCUS & ZELMAN, LLC, pro hac vice, Beth E. Terrell -- bterrell@terrellmarshall.com -- TERRELL MARSHALL LAW GROUP PLLC & Blythe H. Chandler -- bchandler@terrellmarshall.com -- TERRELL MARSHALL LAW GROUP PLLC. Portfolio Recovery Associates, LLC, Defendant, represented by David L. Hartsell, MCGUIREWOODS LLP, pro hac vice, Duncan Manville -- dmanville@sbwllp.com -- SAVITT BRUCE & WILLEY LLP, Sarah A. Zielinski -- szielinski@mcguirewoods.com -- MCGUIREWOODS LLP, pro hac vice & Stephen C. Willey -- swilley@sbwllp.com -- SAVITT BRUCE & WILLEY LLP. PORTFOLIO RECOVERY: Court Refuses to Certify Class in Gomes Suit ---------------------------------------------------------------- The Hon. Cecilia M. Altonaga denied the Plaintiff's Motion for Class Certification and Appointment of Class Representative and Class Counsel in the lawsuit styled LEONARDO GOMES v. PORTFOLIO RECOVERY ASSOCIATES, LLC, Case No. 1:18-cv-21872-CMA (S.D. Fla.). Under the June 25, 2018 Scheduling Order, the deadline to amend pleadings or join parties was August 6, 2018. Discovery closed on November 6, 2018. The Plaintiff has not sought an extension of time to file the Motion, which would necessarily add an entire class of Plaintiffs to the case, and he does not attempt to address good cause for his untimely submission, Judge Altonaga notes. "Indeed, Plaintiff seeks certification of a class just three months before the scheduled trial date of February 18, 2019," Judge Altonaga says. "Consequently, the Court does not reach the merits of the Motion," Judge Altonaga adds, citing Payne v. Ryder Sys., Inc. Long Term Disability Plan, 173 F.R.D. 537, 540 (M.D. Fla. 1997).[CC] PPDAI GROUP: Lai Hits Share Drop from Illegal Business Practices ---------------------------------------------------------------- Weichen Lai, individually and on behalf of all others similarly situated, Plaintiff, v. PPDAI Group Inc., Jun Zhang, Tiezheng Li, Honghui Hu, Shaefeng Gu, Ronald Cao, Congliang Li, Neil Napeng Shen, Zehui Liu, Qiong Wang, Simon Tak Leung Ho, Credit Suisse Securities (USA) LLC, Citigroup Global Markets Inc. and Keefe, Bruyette & Woods, Inc., Defendants, Case No. 18-cv-06716 (E.D. N.Y., November 26, 2018), seeks to recover damages caused by violations of the federal securities laws and to pursue remedies under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. PPDAI is an online Peer-to-Peer consumer finance platform, that connects borrowers to lenders offering short-term loans. In November 2017, Defendants held an IPO, issuing approximately 17 million American Depository Shares to the investing public at $13 each. raising $221 million in the IPO. PPDAI was allegedly engaged in predatory lending practices that saddled subprime borrowers and those with poor or limited credit histories with high interest rate debt they could not repay. Customers were using PPDAI-provided loans to repay existing loans they otherwise could not afford to repay, thereby inflating their revenues and but increasing the likelihood of defaults that would affect their reserves. PPDAI was providing online loans to college students despite a government ban on the practice. It was also engaged in overly aggressive and improper collection practices thus making it a target by Chinese regulators, says the complaint. PPDAI shares traded around $6.16 each, over a 52% decline from the IPO price. Lai invested in them during the IPO and lost substantially. [BN] Plaintiff is represented by: Laurence M. Rosen, Esq. Phillip Kim, Esq. THE ROSEN LAW FIRM, P.A. 355 South Grand Avenue, Suite 2450 Los Angeles, CA 90071 Telephone: (213) 785-2610 Facsimile: (213) 226-4684 Email: lrosen@rosenlegal.com pkim@rosenlegal.com QUINCY BIOSCIENCE: Denial of Bid to Stay in Vanderwerff Suit Upheld ------------------------------------------------------------------- Judge Esther Salas of the U.S. District Court for the District of New Jersey affirmed Magistrate Judge Michael A. Hammer's July 26, 2018 Order denying the Defendants' motion to stay discovery in the case, JAMES VANDERWERFF, Plaintiff, v. QUINCY BIOSCIENCE HOLDING COMPANY, INC., et al., Defendants, Civil Action No. 17-0784 (ES) (MAH) (D. N.J.). On Feb. 7, 2017, Vanderwerff brought the class action on behalf of himself and others similarly situated alleging that the Defendants violated various federal and New Jersey laws by making false and misleading claims regarding its dietary supplement, Prevagen. Particularly, the Plaintiff seeks to represent a nationwide class alleging that the Defendants violated the Racketeer Influence and Corrupt Organizations Act, as well as a New Jersey class alleging that they violated three separate New Jersey statutes. The action arises out of a similar set of facts as a lawsuit filed by the Federal Trade Commission ("FTC") against the Defendants on Jan.9, 2017, in the Southern District of New York. The FTC alleged that the Defendants' products are false and misleading, in violation of sections 5(a) and 12 of the FTC Act and various New York laws. The district court in that action granted the Defendants' motion to dismiss for failure to state a claim. The Defendants state that an appeal of the dismissal remains pending before the Second Circuit. The Defendants further contend that soon after the Plaintiff filed the instant action, the new class action, Karathanos v. Quincy Bioscience Holding Co., et al., No. 17-1091, (Jan. 18, 2018), was filed against them in the Eastern District of New York, alleging similar facts as to those in the FTC Action. Karathanos alleges deceptive acts or practices and false advertising under New York law and the federal Racketeer Influenced and Corrupt Organizations Act. The Eastern District of New York stayed the matter pending the appeal of the FTC Action. A third action, Racies v. Quincy Bioscience, LLC, No. 15-0292, 2015 WL 2398268, is also currently pending before the Northern District of California. In Racies, which asserts liabilities theories similar to the present action based on California law, the California district court denied the Defendant's motion to dismiss in part, finding that the plaintiff's allegations that representations of Prevagen were false, misleading and deceptive, were sufficient to state a claim. On June 14, 2017, the Defendants in the matter filed a motion to dismiss and a motion to stay, pending the resolution of the FTC Action in the Second Circuit. On Sept. 1, 2017, the Magistrate Judge issued an order denying their motion to stay the matter and ordered the the Defendants to provide to the Plaintiff the documents they have provided to the FTC and for all the parties to prepare to discuss deadlines for the completion of written discovery, all fact discovery, experts, class certification and summary judgment. On March 6, 2018, the Court administratively terminated the Defendants' motion to dismiss pending the resolution of the FTC Action. It specifically observed that discovery is ongoing in the action and that nothing in the Order will be construed to supersede Magistrate Judge Hammer's Sept. 1, 2017 Order. On July 13, 2018, the Defendants renewed their request that further discovery be stayed until after the Second Circuit resolves the FTC Action appeal. On July 26, 2018, the Magistrate Judge rejected their arguments and ordered limited discovery directed only to class certification. Particularly, the Magistrate Judge ordered the Defendants to produce additional discovery related to total New Jersey sales of Prevagen, because the discovery in the FTC and Racies actions do not cover the information. On Aug.3, 2018, the Defendants filed the instant appeal. They contend that the Court should vacate the Magistrate Judge's July 26 Order and stay the action, or in the alternative, decide their motion to dismiss. They further argue that the Magistrate Judge's July 26 Order is unfair and inconsistent with the Court's March 6 Order administratively terminating the motion to dismiss. In opposition, the Plaintiff argues that the order in which the Court decides the parties' motions is within the Court's discretion. Therefore, the Plaintiff contends that the Magistrate Judge's July 26 Order is not clearly erroneous or contrary to law. Judge Salas is not persuaded that the Magistrate Judge's July 26 Order is contrary to law or an abuse of discretion. As a starting point, the Defendants' argument that it is contrary to Federal Rule of Civil Procedure 23 for the Magistrate Judge to order additional discovery prior to ruling on the Defendants' motion to dismiss, is misplaced. There is no requirement that discovery must be stayed pending a decision on a party's dispositive motion. She is also not persuaded that the Magistrate Judge's July 26 Order is inconsistent with the Court's March 26 Order administratively terminating the motion to dismiss. The Court did not state that discovery was stayed; it only stated that the motion to dismiss would be administratively terminated pending a decision on the FTC Action. Therefore, the Court use of a procedural device to temporarily terminate the pending motion did not, in any way, limit the Magistrate Judge's discretion to continue discovery in the matter, particularly when that discovery is unrelated to the FTC Action. The Judge therefore determines that the Magistrate Judge's July 26 Order is neither "clearly erroneous" nor "contrary to law" because the Magistrate Judge did not misinterpret or misapply the law, nor did he overlook any law or fact. Additionally, she declines the Defendants' request that the Court decide their motion to dismiss. For the foregoing reasons, Judge Salas denied the Defendants' appeal, and affirmed the Magistrate Judge's July 26 Order. An appropriate Order accompanies the Opinion. A full-text copy of the Court's Nov. 28, 2018 Opinion is available at https://is.gd/MeH56r from Leagle.com. JAMES VANDERWERFF, Plaintiff, represented by DANIEL R. LAPINSKI -- dlapinski@wilentz.com -- WILENTZ, GOLDMAN & SPITZER, PC, JOSEPH R. SANTOLI & KEVIN PETER RODDY -- kroddy@wilentz.com -- WILENTZ, GOLDMAN & SPITZER, PA. QUINCY BIOSCIENCE HOLDING COMPANY, INC., a corporation, QUINCY BIOSCIENCE, LLC, a limited liability company, PREVAGEN, INC, a corporation, QUINCY BIOSCIENCE MANUFACTURING, LLC, a limited liability company, MARK UNDERWOOD, individually and as an officer of QUINCY BIOSCIENCE HOLDING COMPANY, INC., QUINCY BIOSCIENCE, LLC AND PREVAGEN, INC. & MICHAEL BEAMAN, individually and as an officer of QUINCY BIOSCIENCE HOLDING COMPANY, INC., QUINCY BIOSCIENCE, LLC AND PREVAGEN, INC., Defendants, represented by JEFFREY S. JACOBSON -- jjacobson@kelleydrye.com -- KELLEY DRYE & WARREN LLP. R&L CARRIERS: Miranda Suit Moved to C.D. California --------------------------------------------------- In the case, HECTOR MIRANDA, et al., Plaintiffs, v. R&L CARRIERS SHARED SERVICES, LLC, Defendant, Case No. 18-cv-04940-TSH (N.D. Cal.), Magistrate Judge Thomas S. Hixson of the U.S. District Court for the Northern District of California, (i) denied Shared Services' Motion to Dismiss, and (ii) granted its Motion to Transfer Venue to the Central District of California. In the proposed class action, Miranda and Rene Maya allege their former employer, the Defendant, failed to provide meal and rest breaks and compensate them for all hours worked in violation of provisions of the California Labor Code and Business and Professions Code. Shared Services is an Ohio corporation with its principal place of business in Wilmington, Ohio. It provides transportation services to the public, which includes transportation of freight by commercial motor vehicle. Hector Miranda resides in Commerce, California. He worked for Shared Services as a "City Driver" and a "Linehaul Driver" from March 2009 to May 2018. Maya resides in Hacienda Heights, California. He also worked for Shared Services as a City Driver and a Linehaul Driver from January 2007 to June 2018. The Plaintiffs filed the proposed class action on Aug. 14, 2018, on behalf of the following classes: a. All drivers who worked at any of Shared Services' locations as a Pick Up and Delivery Driver also known as a City Driver in California at any time within four years prior to the initiation of the action until the present. b. All drivers who worked at any of Shared Services' locations as a Linehaul Driver in California at any time within four years prior to the initiation of the action until the present. They bring six causes of action: (1) failure to provide meal and rest periods; (2) indemnification; (3) waiting time penalties; (4) failure to pay compensation for all hours worked and minimum wage violations; (5) failure to provide accurate itemized statements; and (6) unfair business practice. Shared Services now moves to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(3), or alternatively, to transfer the action to the Central District of California pursuant to 28 U.S.C. Section 1406(a), based on improper venue. Shared Services argues venue is improper in the District because the Court lacks personal jurisdiction over it. It maintains general jurisdiction is lacking because it is an Ohio corporation with its principal place of business in Ohio, and only 4% of its terminal locations are in the Northern District of California. In response, the Plaintiffs argue their claims are well-tethered to this District as they seek to certify their wage and hour claims for a putative class comprised of California employees. Magistrate Judge Hixson finds that the Northern District of California is not a proper venue for the action and the interests of justice warrant transfer to the Central District of California pursuant to 28 U.S.C. Section 1406(a). Accordingly, he (i) denied Shared Services' Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(3); (ii) granted the Defendant's Motion to Transfer Venue pursuant to 28 U.S.C. Section 1406(a); and (iii) transferred the action is to the U.S. District Court for the Central District of California for further proceedings pursuant to 28 U.S.C. Section 1406(a). He vacated the Dec. 13, 2018 hearing. A full-text copy of the Court's Nov. 28, 2018 Order is available at https://is.gd/n7cnvs from Leagle.com. Hector Miranda, an individual & Rene Maya, Jr., an individual, on behalf of themselves and all other similarly situated individuals, Plaintiffs, represented by Armand Raffi Kizirian -- armand@boyamianlaw.com -- Boyamian Law, Inc., Thomas Walker Falvey -- thomaswfalvey@gmail.com -- Law Offices of Thomas W. Falvey & Michael Hagop Boyamian -- michael@boyamianlaw.com -- Boyamian Law, Inc. R&L Carriers Shared Services, LLC, a Corporation, Defendant, represented by David Stuart Eisen -- david.eisen@wilsonelser.com -- Wilson Elser Moskowitz Edelman Dicker LLP, Diana Marie Estrada -- diana.estrada@wilsonelser.com -- Wilson Elser Moskowitz Edelman & Dicker, LLP & Jennifer Ann Brody -- jennifer.brody@wilsonelser.com -- Wilson Elser. RAYMOND JAMES: Bid to Drop Wistar Class Suit Pending ---------------------------------------------------- Raymond James Financial, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on November 21, 2018, for the fiscal year ended September 30, 2018, that the motion to dismiss filed in the Wistar complaint remains pending. On February 11, 2016, Caleb Wistar ("Wistar") and Ernest Mayeaux ("Mayeaux") filed a putative class action complaint in the District Court under the caption Caleb Wistar and Ernest Mayeaux v. Raymond James Financial Services, Inc. and Raymond James Financial Services Advisors, Inc. (as subsequently amended, the "Wistar Complaint"). Similar to the Jyll Brink v. Raymond James & Associates, Inc., suit, the Wistar Complaint alleges that Wistar and Mayeaux, former customers of RJFS and Raymond James Financial Services Advisors, Inc. ("RJFSA"), were charged a fee in RJFS and RJFSA's Passport Investment Account and that the fee included an unauthorized and undisclosed profit to RJFS and RJFSA in violation of its customer agreement and applicable industry standards. The Wistar Complaint seeks, among other relief, damages in the amount of the difference between the actual cost of processing a trade, as alleged by Wistar and Mayeaux, and the fee charge by RJFS and RJFSA. On September 6, 2018, RJFS and RJFSA filed a motion to dismiss the Wistar Complaint, which motion is pending. The matter is scheduled for trial commencing September 16, 2019. Raymond James said, "RJFS and RJFSA believe the claims in the Wistar Complaint are without merit and are vigorously defending the action." Raymond James Financial, Inc., through its subsidiaries, engages in the underwriting, distribution, trading, and brokerage of equity and debt securities, and the sale of mutual funds and other investment products in the United States, Canada, Europe, and internationally. It operates in five segments: Private Client Group (PCG), Capital Markets, Asset Management, RJ Bank, and Other. The company was founded in 1962 and is headquartered in St. Petersburg, Florida. RAYMOND JAMES: Trial in Brink Suit to Commence April 2019 --------------------------------------------------------- Raymond James Financial, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on November 21, 2018, for the fiscal year ended September 30, 2018, that the trial in the case, Jyll Brink v. Raymond James & Associates, Inc., is scheduled to commence on April 15, 2019. On February 17, 2015, Jyll Brink ("Brink") filed a putative class action complaint in the U.S. District Court for the Southern District of Florida (the "District Court") under the caption Jyll Brink v. Raymond James & Associates, Inc. (the "Brink Complaint"). The Brink Complaint alleges that Brink, a former customer of RJ&A, was charged a fee in her Passport Investment Account, and that the fee included an unauthorized and undisclosed profit to RJ&A in violation of its customer agreement and applicable industry standards. The Passport Investment Account is a fee-based account in which clients pay asset-based advisory fees and certain processing fees for ongoing investment advice and monitoring of securities holdings. The Brink Complaint seeks, among other relief, damages in the amount of the difference between the actual cost of processing a trade, as alleged by Brink, and the fee charged by RJ&A. On May 9, 2016, RJ&A filed a motion to dismiss the Brink Complaint for lack of subject matter jurisdiction pursuant to the Securities Litigation Uniform Standards Act ("SLUSA"). On June 6, 2016, the District Court entered an order granting the motion and dismissing the Brink Complaint on SLUSA preclusion grounds. On June 24, 2016, Brink filed a notice of appeal of the order of dismissal with the United States Court of Appeals for the Eleventh Circuit (the "Appellate Court"). On June 8, 2018, the Appellate Court issued its opinion reversing the order of dismissal and remanding the case to the District Court for further proceedings consistent with the opinion. On October 19, 2018, the District Court certified a class of former and current customers of RJ&A who executed a Passport Agreement and were charged such fees during the period between February 17, 2010 and February 17, 2015. The matter is scheduled for trial commencing April 15, 2019. Raymond James said, "RJ&A believes the claims in the Brink Complaint are without merit and is vigorously defending the action." Raymond James Financial, Inc., through its subsidiaries, engages in the underwriting, distribution, trading, and brokerage of equity and debt securities, and the sale of mutual funds and other investment products in the United States, Canada, Europe, and internationally. It operates in five segments: Private Client Group (PCG), Capital Markets, Asset Management, RJ Bank, and Other. The company was founded in 1962 and is headquartered in St. Petersburg, Florida. SACRAMENTO COUNTY, CA: Class Certification in Mays Suit Recommended ------------------------------------------------------------------- In the case, LORENZO MAYS, RICKY RICHARDSON, JENNIFER BOTHUN, ARMANI LEE, LEERTESE BEIRGE, and CODY GARLAND, on behalf of themselves and all others similarly situated, Plaintiffs, v. COUNTY OF SACRAMENTO, Defendant, Case No. 2:18-cv-2081 KJNP (E.D. Cal.), Magistrate Judge Kendall J. Newman of the U.S. District Court for the Eastern District of California has recommended that the parties' Joint Motion for Class Certification be granted. A hearing on the Motion was held on Nov. 29, 2018. After full consideration of the evidence, the parties' arguments, and the authorities submitted by counsel, the Magistrate Judge recommended that the action be maintained as a class action under Federal Rule of Civil Procedure Rule 23(a), 23(b)(1), and 23(b)(2), and recommended the parties' Joint Motion for Class Certification be granted. He finds that the requirements of Rule 23(a), Rule 23(b)(1) and Rule 23(b)(2) are satisfied. The action should be certified as a class action as to all claims and defenses at issue in the Complaint pursuant to Rules 23(a), 23(b)(1), and 23(b)(2) of the Federal Rules of Civil Procedure. He recommended certification of these classes: a. Plaintiff Class: All people who are now, or in the future will be, incarcerated in the Sacramento County jails. b. Plaintiff Subclass (the Disability Class): All qualified individuals with disabilities, as that term is defined in 42 U.S.C. Section 12102, 29 U.S.C. Section 705(9)(B), and California Government Code Section 12926(j) and (m), who are, or will be in the future, incarcerated in the Sacramento County jails. The Magistrate Judge further recommended that the named Plaintiffs be certified to serve as the class representatives; and that Disability Rights California, the Prison Law Office, and Cooley LLP be appointed as the class counsel. Pursuant to Rule 23(c)(2)(A), the parties will confer and, in their joint status report to be filed on Dec. 17, 2018, will address the status of their proposed notice to the Plaintiff Class and Disabilities Subclass, and the proposed method of distribution of such notice. These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. Section 636(b)(l). Within 10 days after being served with these findings and recommendations, any party may file written objections with the Court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections will be filed and served within seven days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. A full-text copy of the Court's Nov. 30, 2018 Findings & Recommendations is available at https://bit.ly/2EctrdR from Leagle.com. Armani Lee, Leertese Beirge, Ricky Lee Richardson, Jr., Cody Garland, Lorenzo Mays & Jennifer Bothun, Plaintiffs, represented by Donald Specter, Prison Law Office, Jessica Valenzuela Santamaria -- jvs@cooley.com -- Cooley LLP, Addison Mills Litton -- alitton@cooley.com -- Cooley LLP, Anne Hadreas -- anne.Hadreas@disabilityrightsca.org -- Disability Rights California, Kathlyn Anne Querubin -- kquerubin@cooley.com -- Cooley LLP, Margot Knight Mendelson -- mmendelson@prisonlaw.com -- Prison Law Office, Mark Anthony Zambarda -- mzambarda@cooley.com -- Cooley LLP, Sophie Jedeikin Hart -- sophieh@prisonlaw.com -- Prison Law Office, Tifanei Ressl-Moyer -- Tifanei.Ressl-Moyer@disabilityrightsca.org -- Disability Rights California & Aaron Joseph Fischer -- Aaron.Fischer@disabilityrightsca.org -- Disability Rights California. County of Sacramento, Defendant, represented by Todd Holton Master -- tmaster@hrmrlaw.com -- Howard Rome Martin & Ridley LLP & Shawn M. Ridley -- sridley@hrmrlaw.com -- Howard Rome Martin & Ridley. SCOTTS MIRACLE-GRO: Settlement Reached in Morning Song Bird Suit ---------------------------------------------------------------- The Scotts Miracle-Gro Company said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on November 29, 2018, for the fiscal year ended September 30, 2018, that a settlement has been reached in the case entitled, In re Morning Song Bird Food Litigation. In connection with the sale of wild bird food products that were the subject of a voluntary recall in 2008, the Company, along with its Chief Executive Officer, have been named as defendants in four actions filed on and after June 27, 2012, which have been consolidated, and, on March 31, 2017, certified as a class action in the United States District Court for the Southern District of California as In re Morning Song Bird Food Litigation, Lead Case No. 3:12-cv-01592-JAH-AGS. The plaintiffs allege various statutory and common law claims associated with the Company's sale of wild bird food products and a plea agreement entered into in previously pending government proceedings associated with such sales. The plaintiffs allege, among other things, a class action on behalf of all persons and entities in the United States who purchased certain bird food products. The plaintiffs assert: (i) hundreds of millions of dollars in monetary damages (actual, compensatory, consequential, and restitution); (ii) punitive and treble damages; (iii) injunctive and declaratory relief; (iv) pre-judgment and post-judgment interest; and (v) costs and attorneys' fees. The Company and its Chief Executive Officer dispute the plaintiffs' assertions and have vigorously defended the consolidated action. The Scotts said, "As a result of the parties reaching an agreement in principle to settle this matter, which the parties are in the process of finalizing and which remains subject to Court approval, the Company recognized a pre-tax charge of $85.0 million for a probable loss related to this matter for the year ended September 30, 2018 in the "Income (loss) from discontinued operations, net of tax" line in the Consolidated Statements of Operations. There can be no assurance that future developments with respect to this action, whether as a result of an adverse outcome or as a result of significant defense costs, will not have a material adverse effect on the Company's financial condition, results of operations or cash flows." The Scotts Miracle-Gro Company manufactures, markets, and sells consumer lawn and garden products in the United States and internatonally. The company operates through three segments: U.S. Consumer, Hawthorne, and Other. The Scotts Miracle-Gro Company was founded in 1868 and is headquartered in Marysville, Ohio. SECURIAN FINANCIAL: Harrison Suit Transferred to Minnesota ---------------------------------------------------------- The class action styled as Brian Harrison individually and on behalf of all others similarly situated, Plaintiff v. Securian Financial Group, Minnesota Life Insurance Company, Defendants, Case No. 1:18-cv-02204 was transferred from the District of Ohio Northern to the U.S. District Court for the District of Minnesota on November 29, 2018, and assigned Case No. 0:18-cv-03274-MJD-KMM. Securian Financial Group, Inc. provides financial security for individuals and businesses in the form of insurance, retirement plans, and investments. Minnesota Life Insurance Company, together with its subsidiaries, provides life insurance and other financial products and services to individuals and families in the United States. It offers individual financial security, financial institution group, group insurance, retirement plans, and asset management services.[BN] SETERUS INC: Ct. Denies w/ Prejudice Class Cert. Bid in "Baxa" -------------------------------------------------------------- The Hon. Jane Triche Milazzo denied without prejudice the Plaintiffs' Motion to Certify Class in the lawsuit captioned JOHN BAXA, ET AL. v. SETERUS, INC., Case No. 2:17-cv-05434-JTM-MBN (E.D. La.). The Motion to Certify Class is denied without prejudice, to be re-urged after the Court rules on the Defendant's pending Motion to Dismiss. The Defendant's Motion to Stay is denied as moot. According to the Court's order, the Defendant effectively asks the Court to delay consideration of the Plaintiffs' Motion to Certify Class until the Court rules on the Defendant's previously filed Motion to Dismiss for Failure to State a Claim.[CC] SHOREFRONT OPERATING: Chow Sues over Unsafe and Inadequate Care --------------------------------------------------------------- WALTER CHOW, as Administrator of the Estate of LEROY CHOW, individually and on behalf of all others similarly situated, the Plaintiff, vs. SHOREFRONT OPERATING LLC d/b/a SEAGATE REHABILITATION AND NURSING CENTER; SHAINDY BERKO; ROCHEL DAVID; LEAH FRIEDMAN; DEENA LANDA; ESTHER FARKOVITZ; AVI PHILIPSON; BERISH RUBINSTEIN; DAVID RUBINSTEIN; BRUSCHA SINGER; JOEL ZUPNICK; SHOREFRONT REALTY LLC; SENTOSACARE, LLC; and DOES 1-25, the Defendants, Case No.: 523769/2018 (N.Y. Sup. Ct., Nov. 27, 2018), seeks monetary damages, statutory damages, and injunctive relief prohibiting further wrongful conduct, as well as any other available relief at law or in equity. According to the complaint, the Plaintiff brings this class action against Defendants -- the owners and operators of Seagate Rehabilitation and Nursing Center, a nursing home located at 3015 W 29th Street, Brooklyn, New York -- on behalf of himself and a class of similarly situated nursing home patients who were victimized by unsafe and inadequate care in the Facility. Defendants' unlawful conduct violates Section 2801-d of New York's Public Health Law. Defendants are entrusted to provide care to the elderly and infirm nursing home patients in their custody. Unfortunately, Defendants have betrayed and continue to betray that trust. For example, Defendants fail to sufficiently staff the Facility. Throughout their operation of the Facility, Defendants have failed to staff a sufficient number of nurses and aides, thereby depriving the Facility's residents of the level of care required under New York and federal law. Among many other shocking failures, this understaffing caused Defendants to fail to provide the correct dosage of medications at the prescribed times, fail to regularly wash and change patients, serve patients inappropriate meals, force patients to clean the Facility walls with caustic chemicals causing severe skin peeling, put patients on heavy narcotics resulting in some patients suffering from brain metabolic injury, and refuse patients their clothing and medication upon discharge. Unsurprisingly, the Nursing Home Compare website operated by the federal Centers for Medicare & Medicaid Services shows that the Facility currently receives rating of one star out of a five star scale in staffing, further evidencing the lack of adequate care and staffing at the Facility. As the Facility has approximately 360 beds and is operating at a high occupancy rate (above 90%), there are many other residents currently languishing in an unsafe and inadequate nursing home, the lawsuit says.[BN] Attorneys for Plaintiff and Proposed Class: Jeremiah Frei-Pearson, Esq. Todd S. Garber, Esq. John Sardesai-Grant, Esq. Ayana McGuire, Esq. FINKELSTEIN, BLANKINSHIP, FREI-PEARSON & GARBER, LLP 445 Hamilton Avenue, Suite 605 White Plains, NY 10601 Telephone: (914) 298-3281 Facsimile: (914) 824-1561 E-mail: jfrei-pearson@fbfglaw.com tgarber@fbfglaw.com jsardesaigrant@fbfglaw.com amcguire@fbfglaw.com STARBUCKS CORP: Cal. App. Affirms Judgment in Carrington Labor Suit ------------------------------------------------------------------- In the case, KILEIGH CARRINGTON, Plaintiff and Respondent, v. STARBUCKS CORPORATION, Defendant and Appellant, Case No. D072392 (Cal. App.), Judge Patricia Guerrero of the Court of Appeals of California for the Fourth District, Division One, affirmed the trial court's judgment in Carrington's favor. Carrington filed a complaint against her former employer, Starbucks, asserting a representative cause of action under the Private Attorney General Act ("PAGA"), claiming that Starbucks failed to properly provide meal breaks or pay meal period premiums for certain employees in violation of sections 226.7 and 512. In her complaint, Carrington alleged that Starbucks implemented a meal period policy under which employees who worked slightly more than five hours were not provided meal breaks within the first five hours of work and were not paid meal period premiums when meal breaks were not timely provided, in violation of sections 512, subdivision (a), and 226.7, subdivisions (a) and (b). As a result, Starbucks failed to provide accurate itemized wage statements in violation of section 226 and failed to provide employees with all wages earned and unpaid at termination in violation of sections 201, 202, and 203. Carrington sought civil penalties and unpaid wages under sections 2699, subdivision (a), and 558, subdivision (a), and an award of attorney fees and costs under section 2699, subdivision (g)(1). She attached to her complaint two letters she previously sent to the LWDA and Starbucks providing written notice of her claims, as required under section 2699.3, subdivision (a)(1). Starbucks moved for summary judgment on Carrington's claims, arguing that Carrington's meal break claim failed because, although her time records reflected she twice started a break after working more than five hours and was not paid a meal premium, Carrington could not recall the details surrounding those shifts, including which supervisors or managers were working or why she did not begin her breaks until more than five hours had elapsed. Starbucks argued that her lack of memory regarding the specific instances of these shifts, coupled with Starbucks's policy to provide employees scheduled to work shifts longer than five hours with compliant meal periods, indicated summary judgment should be awarded in Starbucks's favor. In a bifurcated bench trial on the Plaintiff's action, the trial court determined Starbucks was liable for these violations and imposed penalties of $150,000, with 75% thereof payable to the Labor and Workforce Development Agency ("LWDA") and 25 payable to Carrington and the employees she represented in the action. The trial court entered judgment in Carrington's favor. Starbucks appeals, contending Carrington failed to prove she is an aggrieved employee and failed to prove a representative claim. Judge Guerrero concludes there was no legal error and finds that substantial evidence supports the judgment. First, she finds that Carrington proved she is an aggrieved employee. Carrington experienced the violation alleged, Starbucks did not provide compliant meal breaks, and the de minimis doctrine does not preclude liability in the case. Second, she holds that Carrington proved a representative claim. She finds that (i) substantial evidence supports the conclusion that Starbucks had a non-compliant policy and practice; (ii) the evidence was not overly individualized to preclude a representative finding; (iii) Starbucks has not established prejudicial error with respect to the time records; (iv) Starbucks was not precluded from presenting its defenses; and (v) Starbucks's good faith attempt to comply with the law is reflected in the penalty imposed. Accordingly, she affirmed. A full-text copy of the Court's Nov. 27, 2018 Opinion is available at https://is.gd/Vkw9vh from Leagle.com. Akin, Gump, Strauss, Hauer & Feld, Jonathan P. Slowik -- jpslowik@akingump.com -- Gregory W. Knopp -- gknopp@akingump.com -- and Rex S. Heinke -- rheinke@akingump.com -- for Defendant and Appellant. Sullivan Law Group, Eric K. Yaeckel -- yaeckel@sullivanlawgroupapc.com -- William B. Sullivan -- helen@sullivanlawgroupapc.com -- and Andrea J. Torres-Figueroa for Plaintiff and Respondent. STATE COLLECTION: Class Certification Sought in Cajigas Suit ------------------------------------------------------------ Rafael Cajigas, Julie Voeks, and Vesta Bills move the Court to certify the class described in the complaint of their lawsuit captioned RAFAEL CAJIGAS, JULIE VOEKS, and VESTA BILLS, Individually and on Behalf of All Others Similarly Situated v. STATE COLLECTION SERVICE, INC., Case No. 2:18-cv-01864-NJ (E.D. Wisc.), and further ask that the Court both stay the motion for class certification and to grant them (and the Defendant) relief from the Local Rules setting automatic briefing schedules and requiring briefs and supporting material to be filed with the Motion. Dicta in the Supreme Court's decision in Campbell-Ewald Co. v. Gomez, left open the possibility that a defendant facing a class action complaint could moot a class representative's case by depositing funds equal to or in excess of the maximum value of the plaintiff's individual claim with the court and having the court enter judgment in the plaintiff's favor prior to the filing of a class certification motion, the Plaintiffs assert, citing Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016). To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion. Damasco v. Clearwire Corp., 662 F.3d 891, 896 (7th Cir. 2011), overruled on other grounds, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015) ("The pendency of that motion [for class certification] protects a putative class from attempts to buy off the named plaintiffs."). Plaintiffs are obligated to move for class certification to protect the interests of the putative class, the Plaintiffs contend. The Plaintiffs assert that more than one defendant has already attempted the scheme contemplated in Campbell-Ewald, citing Severns v. Eastern Account Systems of Connecticut, Inc., Case No. 15-cv-1168, 2016 U.S. Dist. LEXIS 23164 (E.D. Wis. Feb. 24, 2016). Judge Randa denied the defendant's request to deposit funds on grounds that a class certification motion was pending. As this Motion to certify a class is a placeholder motion as described in Damasco, the parties and the Court should not be burdened with unnecessary paperwork and the resulting expense when short motion to certify and stay should suffice until an amended motion is filed, the Plaintiffs argue. The Plaintiffs also ask the Court to appoint them as class representatives, and to appoint Ademi & O'Reilly, LLP, as class counsel.[CC] The Plaintiffs are represented by: John D. Blythin, Esq. Mark A. Eldridge, Esq. Jesse Fruchter, Esq. Ben J. Slatky, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482-8000 Facsimile: (414) 482-8001 E-mail: jblythin@ademilaw.com meldridge@ademilaw.com jfruchter@ademilaw.com bslatky@ademilaw.com SUBURBAN PROPANE: Asks Court to Reconsider Bid to Drop NY Suit -------------------------------------------------------------- Suburban Propane, L.P. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on November 21, 2018, for the fiscal year ended September 29, 2018, that the Partnership has filed a motion for reconsideration seeking dismissal of the entire New York complaint. The Partnership's natural gas and electricity business is currently a defendant in two putative class action suits in the federal district courts of New York and Pennsylvania. The complaints allege a number of claims regarding pricing to its electricity customers in those states under various consumer statutes and common law. The complaint in the Pennsylvania action was dismissed in its entirety by the district court, which dismissal is being appealed by plaintiff. Plaintiff also filed a motion to amend its complaint and reverse the dismissal order, which motion was also denied by the court. The complaint in the New York action was dismissed in part by the district court, but causes of action based on the NY consumer statute and breach of contract were allowed to proceed. The Partnership has filed a motion for reconsideration seeking the dismissal of the entire New York complaint. Based on the nature of the allegations under these suits, the Partnership believes that the suits are without merit and is defending each of these suits vigorously. With respect to these pending suits, the Partnership has determined, based on the allegations and discovery to date, that no reserve for a loss contingency other than for legal defense fees and expenses is required. The Partnership is unable to reasonably estimate the possible loss or range of loss, if any, arising from either of these two actions. Although any litigation is inherently uncertain, based on past experience, the information currently available to the Partnership, and the amount of its accrued insurance liabilities, the Partnership does not believe that currently pending or threatened litigation matters, or known claims or known contingent claims, will have a material adverse effect on its results of operations, financial condition or cash flow. Suburban Propane, L.P. markets and distributes propane, fuel oils, refined fuels, natural gas, and electricity in deregulated markets. It offers propane for homes; recreational purposes; and propane for businesses, such as restaurants and hotels, landscape mowers, fleet auto gas applications, builders and constructions, temporary heating applications, national/major accounts, resellers, and forklift motor fuels. Suburban Propane, L.P. was founded in 1928 and is based in Whippany, New Jersey. It has locations in the United States. Suburban Propane, L.P. operates as a subsidiary of Suburban Propane Partners LP. SUPERIOR MALPRACTICE: Faces Retina Associates Suit Over Junk Faxes ------------------------------------------------------------------ Retina Associates Medical Group, Inc., individually and on behalf of all others similarly situated, Plaintiff, v. Superior Malpractice Insurance Services, Inc., Ahmad Oyoun and Nino Abboushi, Defendants, Case No. 8:18-cv-02117 (C.D. Cal., November 29, 2018) is a class action under Rule 23 of the Federal Rules of Civil Procedure against Defendants Superior Malpractice Insurance Services, Inc., Ahmad Oyoun, and Nino Abboushi for their violations of the Telephone Consumer Protection Act. According to the complaint, Defendants, or some person authorized to do so on their behalf, have routinely and systematically caused to be sent out to Plaintiff and Class Members one or more "blasts" of unsolicited fax advertisements for goods or services without the proper opt-out notice required by the TCPA and its regulations. The complaint asserts, among other things, that the Defendants' transmission of the subject faxes was intrusive, and interfered with Plaintiff's legitimate business enterprise. The Defendants are therefore liable to Plaintiff and the proposed Class of similarly situated persons under the TCPA, and for Class Members and itself individually. Plaintiff seeks an injunction, requiring Defendants to cease all junk faxes and an award of statutory damages to Plaintiff and Class Members, together with costs and reasonable attorneys' fees, says the complaint. Plaintiff's principal place of business is in Orange County, California. Plaintiff is a citizen of the state of California. Superior Malpractice Insurance Services, Inc. (SMISI), is a California limited liability. Ahmad Oyoun is an individual who resides in Los Angeles County, California. Oyoun is Chief Executive Officer and Chief Financial Officer of SMISI. Nino Abboushi is an individual who resides in Los Angeles County, California. Abboushi is Secretary of SMISI.[BN] The Plaintiff is represented by: Seth M. Lehrman, Esq. EDWARDS POTTINGER LLC 425 North Andrews Avenue, Suite 2 Fort Lauderdale, FL 33301 Phone: 954-524-2820 Facsimile: 954-524-2822 Email: seth@epllc.com TENAGLIA & HUNT: Yungreis Files FDCPA Suit in New Jersey -------------------------------------------------------- A class action lawsuit has been filed against Tenaglia & Hunt, P.A., et al. The case is styled as Philip Yungreis, individually and on behalf of all others similarly situated, Plaintiff v. Tenaglia & Hunt, P.A., John Does 1-25, Defendants, Case No. 2:18-cv-16614 (D. N.J., Nov. 29, 2018). The Plaintiff filed the case under Fair Debt Collection Practices Act. Tenaglia & Hunt, P.A. is a full service regional law firm handling matters in the Courts of New York, New Jersey and across the US.[BN] The Plaintiff is represented by: Yaakov Saks, Esq. Stein Saks, PLLC 285 Passaic Street Hackensack, NJ 07601 Phone: (201) 282-6500 ext 101 Fax: (201) 282-6501 Email: ysaks@steinsakslegal.com TEXAS: LULAC Moves to Cert. Class, Subclass of Latino ELL Students ------------------------------------------------------------------ LULAC asks the Court to enter an order certifying the action styled LULAC v. STATE OF TEXAS, et al., Case No. 5:15-cv-00219-DAE (W.D. Tex.), as a class action for all purposes. The Plaintiff seeks certification of: * a Statewide Class composed of: "all Latino English Language Learner students who attend public secondary schools in Texas;" and * a SWISD Subclass comprised of: "all Latino English Language Learner students who attend public secondary schools in Southwest Independent School District." The Plaintiff is the appointed class representative for all purposes of a certified class of "all persons of Mexican-American descent or nationality in the State of Texas," in the lawsuit titled United States v. Texas, No. 6:71-CV-5281 (E.D. Tex. July 10, 2017) (Order on Motion for GI Forum-LULAC Intervenors for Leave to Intervene). The Plaintiff now asks the Court to modify and certify its Statewide Class and SWISD Subclass in this severed action. LULAC also asks for an order appointing its counsel as class counsel.[CC] The Plaintiff is represented by: Jack Salmon, Esq. MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 110 Broadway, Suite 300 San Antonio, TX 78205 Telephone: (210) 224-5476 Facsimile: (210) 224-5382 E-mail: jsalmon@maldef.org - and - Roger Rice, Esq. META, INC. P.O. Box 440245 Somerville, MA 02144 Telephone: (617) 628-2226 Facsimile: (617) 628-0322 E-mail: meta.project4@gmail.com Defendant Southwest I.S.D. is represented by: D. Craig Wood, Esq. Stacy T. Castillo, Esq. WALSH GALLEGOS TREVINO RUSS & KYLE P.C. 1020 N.E. Loop 410, Suite 450 San Antonio, TX 78209 Telephone: (210) 979-6633 The State Defendants are represented by: Adam N. Bitter, Esq. Emily Ardolino, Esq. OFFICE OF THE ATTORNEY GENERAL GENERAL LITIGATION DIVISION P. O. Box 12548 Austin, TX 78711 Telephone: (512) 475-4055 E-mail: adam.bitter@oag.texas.gov emily.ardolino@oag.texas.gov TRANS UNION: Violates Fair Credit Reporting Act, Sztillerman Says ----------------------------------------------------------------- SHIMON SZTILLERMAN on behalf of himself and all other similarly situated consumers, the Plaintiff, vs. TRANS UNION, LLC, the Defendant, Case No. 1:18-cv-06728 (E.D.N.Y., Nov. 27, 2018), seeks redress for Trans Union's violation of the Fair Credit Reporting Act. According to the complaint, the Plaintiff is a consumer who is the victim of inaccurate reporting by Defendant Trans Union, LLC, and has suffered particularized and concrete harm. The Plaintiff disputed an American Express account: no. 349992209727 that appeared on his credit report, directly with Trans Union, LLC sometime before March of 2018. Thereafter, Trans Union, LLC notified the Plaintiff that it had initiated an investigation into the said dispute. Trans Union, LLC's investigation did not resolve the dispute and Plaintiff subsequently filed a statement of dispute with Trans Union, LLC in July of 2018. The Plaintiff obtained his consumer credit report from Trans Union, LLC and found that the Defendant had not included Plaintiff's statement of dispute in the credit report. Subsequent to Trans Union, LLC's receipt of the Plaintiff's statement of dispute, Trans Union, LLC issued consumer reports without in any way indicating to the users of the reports that certain information contained therein was disputed by Plaintiff and failed to include a copy of Plaintiff's statement of dispute. Trans Union, LLC intentionally failed to include the statement of dispute with later copies of the Plaintiff's consumer reports. The Plaintiff's July 2018 "Statement of Dispute" letter, sent in response to Defendant's reinvestigation results constitutes a "statement of dispute" under 15 U.S.C. section 1681i(b). The "Statement of Dispute" letter was sent after Plaintiff's request for a reinvestigation yielded no change in the status of the account on Plaintiff's credit report. This is precisely the process that section 1681i requires. The Plaintiff clearly provided sufficient detail in his July "Statement of Dispute" letter to put the Defendant on notice as to the nature of the dispute, the lawsuit says. TransUnion offers complete and multidimensional information for informed decisions that create opportunities for business.[BN] Attorneys for Plantiff: Adam J. Fishbein, P.C. 735 Central Avenue Woodmere, New York 11598 Telephone: (516) 668-6945 E-mail: fishbeinadamj@gmail.com UNITED TECHNOLOGIES: Millman Class Cert. Bid Taken Under Advisement ------------------------------------------------------------------- In the case, OPAL MILLMAN, ERIC POWELL, and LAURY POWELL, on behalf of themselves and all others similarly situated, Plaintiffs, v. UNITED TECHNOLOGIES CORPORATION, LEAR CORPORATION EEDS AND INTERIORS, as successor to United Technologies automotive, Inc., ANDREWS DAIRY STORE, INC., L.D. WILLIAMS, INC., CP PRODUCT, LLC successor to Preferred Technical Group, Inc., and LDW DEVELOPMENT, LLC, Defendants, Cause No. 1:16-CV-312-TLS (N.D. Ind.), Judge Theresa L. Springmann of the U.S. District Court for the Northern District of Indiana, Fort Wayne Division, took the Plaintiffs' Motion to Amend/Correct their Motion to Certify Class and subsequent briefing under advisement. On June 18, 2018, the Plaintiffs filed their Motion for Class Certification. On July 18, 2018, they filed a Notice containing an additional case from the Sixth Circuit. On Aug. 15, 2018, Judge Jon E. Deguilio issued an opinion in Hostetler et al. v. Johnson Controls Inc., et al., denying class certification in a very similar case. As the Hostetler case involved the same Plaintiffs' and the Defendants' counsel, and very similar issues, the Plaintiffs in the matter filed a Motion to Amend/Correct their Motion to Certify Class. Some of the Defendants, specifically United Technologies Corp., CP Product LLC, and Lear Corp. Eeds and Interiors, filed a Motion in Opposition to the Plaintiffs' Motion to Amend; the Plaintiffs replied. On Sept. 21, 2018, additional Defendants, specifically L.D. Williams, Inc., and LDW Development, LLC, filed a Notice of Joinder. The Plaintiffs moved to strike, or in the alternative, for permission to file a sur-reply to address the additional arguments raised in the Notice of Joinder. The LDW Defendants responded, and the Plaintiffs replied. The Court denied the Plaintiffs' Motion to Strike but granted them leave to file a sur-reply, which they filed on Oct. 16, 2018. Thus, the extensive briefing on the Plaintiffs' Motion to Amend is complete. The Plaintiffs' Motion for Class Certification proposed eight issues for potential certification. The Motion to Amend suggests no changes to two issues, a minor change to two others, significant changes related to the phrasing of three more, and finally splitting one issue, whether the Defendants acted with reckless indifference, into two issues, whether the Defendants negligently failed to investigate and whether it was foreseeable to the Defendants that their handling of the chemicals in question could cause contamination. The Plaintiffs emphasize that they do not seek to alter their Memorandum supporting their Motion for Class Certification; they specifically state that no additional briefing is proposed. However, the Defendants object to the proposed amendments. Specifically, they argue that (1) the deadline for the Plaintiffs' proposed class issues is long past, and (2) the Defendants would be prejudiced by the Plaintiffs' proposed amendments. For the first issue, the Defendants rely primarily on Chapman v. First Index, Inc. For the second, they state that their litigation strategy would have changed; specifically, that they would have directed additional fact discovery towards the Plaintiffs on a variety of issues and would have sought additional expert testimony to address the issues the Plaintiffs now raise. Judge Springmann finds that while the proposed amendment comes after the deadline to file the motion for class certification, a deadline which had indeed been extended, its timing alone does not warrant denying the Motion to Amend. Significant prejudice to the Defendants, however, might warrant denying the Plaintiff's Motion. She holds that she needs additional information on exactly how the Defendants would be prejudiced before it can rule. Despite the voluminous briefing, the Defendants have not clarified what additional fact issues the proposed changes create, or what kind of additional discovery the Defendants believe would be necessary to address them. For the reasons she stated, the Judge ordered that all the Defendants may file supplemental briefing on the details of the prejudice they will suffer if the Plaintiffs are permitted to amend these issues by Jan. 4, 2019. The Plaintiffs may then reply in further support of the proposed amended issues by Jan. 25, 2019. She took the Plaintiffs' Motion and subsequent briefing under advisement until briefing is complete. A full-text copy of the Court's Nov. 30, 2018 Opinion and Order is available at https://bit.ly/2C2olzs from Leagle.com. Opal Millman, on behalf of herself and all others similarly situated, Eric Powell, on behalf of himself and all others similarly situated & Laury Powell, on behalf of herself and all others similarly situated, Plaintiffs, represented by Rodney L. Michael, Jr. -- rmichael@taftlaw.com -- Taft Stettinius & Hollister LLP, Thomas A. Barnard -- tbarnard@taftlaw.com -- Taft Stettinius & Hollister LLP, Benjamin A. Wolowski -- bwolowski@taftlaw.com -- Taft Stettinius & Hollister LLP & Tammara D. Porter -- tporter@taftlaw.com -- Taft Stettinius & Hollister LLP. United Technologies Corporation & Lear Corporation Eeds and Interiors, successor to United Technologies Automotive Inc., Defendants, represented by Alicia Marcia Raines - Alicia.RainesBarrs@btlaw.com -- Barnes & Thornburg LLP, Joseph G. Eaton -- joe.eaton@btlaw.com -- Barnes & Thornburg LLP & Kelly J. Hartzler -- kelly.hartzler@btlaw.com -- Barnes & Thornburg LLP. Andrews Dairy Store Inc., Defendant, pro se. L.D. Williams, Inc. & LDW Development LLC, Defendants, represented by Andrew M. McNeil -- amcneil@boselaw.com -- Bose McKinney & Evans LLP, Bradley M. Dick -- bdick@boselaw.com -- Bose McKinney & Evans LLP & Bradley R. Sugarman -- bsugarman@boselaw.com -- Bose McKinney & Evans LLP. CP Product LLC, successor to Preferred Technical Group Inc., Defendant, represented by Joseph G. Eaton, Barnes & Thornburg LLP, Kelly J. Hartzler, Barnes & Thornburg LLP & Meredith Thornburgh White, Barnes & Thornburg LLP. L.D. Williams, Inc., Cross Defendant, represented by Bradley R. Sugarman, Bose McKinney & Evans LLP. LDW Development LLC, Cross Defendant, represented by Andrew M. McNeil, Bose McKinney & Evans LLP, Bradley M. Dick, Bose McKinney & Evans LLP & Bradley R. Sugarman, Bose McKinney & Evans LLP. US NUTRITION: Matic Files Slack-fill Suit in Calif. --------------------------------------------------- Matthew Matic, on behalf of himself and on all others similarly situated. v. United States Nutrition, Inc., Case No. 2:18-cv-09592 (C.D. Calif., November 14, 2018), is brought against the Defendant for violations of the California's Consumer Legal Remedies Act, the Unfair Competition Law, and California's False Advertising Law. This lawsuit charges the Defendant with intentionally packaging its Pure Protein Products in non-transparent containers that contain nearly 40% empty space. Most consumers purchased the Products without knowing that the containers were substantially empty. The Plaintiff Matthew Matic is a citizen of the State of California and resides in Los Angeles, California. The Plaintiff purchased the Product in May 2015 in Los Angeles, California at the Walmart located on 1827 Walnut Grove, Rosemead, CA 91770. The Defendant marketed and sold the Pure Protein Products. The Defendant United States Nutrition, Inc. is a Delaware corporation which has its principal place of business located in Ronkonkoma, New York. [BN] The Plaintiff is represented by: Ronald A. Marron, Esq. Michael T. Houchin, Esq. Tania Babaie, Esq. LAW OFFICES OF RONALD A. MARRON 651 Arroyo Drive San Diego, CA 92103 Tel: (619) 696-9006 Fax: (619) 564-6665 E-mail: ron@consumersadvocates.com mike@consumersadvocates.com tania@consumersadvocates.com - and - Scott J. Ferrell, Esq. PACIFIC TRIAL ATTORNEYS 4100 Newport Place Drive, Ste. 800 Newport Beach, CA 92660 Tel: (949) 706-6464 Fax: (949) 706-6469 E-mail: sferrell@pacifictrialattorneys.com USA WATER POLO: 9th Cir. Flips Dismissal of Mayall Injury Suit -------------------------------------------------------------- Judge William A. Fletcher of the U.S. Court of Appeals for the Ninth Circuit reversed the district court's dismissal of the case, ALICE MAYALL, as parent and guardian of minor H.C., on behalf of H.C. and all others similarly situated, Plaintiff-Appellant, v. USA WATER POLO, INC., Defendant-Appellee, Case No. 16-56389 (9th Cir.). Mayall brought the putative class action against USA Water Polo as a representative of her minor daughter, alleging negligence, breach of voluntary undertaking, and gross negligence. The gravamen of Mayall's complaint is that USA Water Polo failed to implement concussion-management and return-to-play protocols for its youth water polo league. The Second Amended Complaint ("SAC") alleges that H.C., Mayall's daughter, was returned to play as a goalie in a youth water polo tournament after being hit in the face by the ball and while manifesting concussion symptoms. After she was returned to play, H.C. received additional hits to the head. As a result, she suffered from severely debilitating post-concussion syndrome. The district court dismissed the suit under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim under California law. It held that (1) the SAC fails to allege a duty owed to H.C. by USA Water Polo and therefore fails to allege actionable negligence; (2) the SAC insufficiently alleges that a task or duty was "specifically" undertaken by USA Water Polo, and that USA Water Polo had increased the risk of harm to H.C.; and (3) the SAC fails to allege gross negligence because it fails to allege a duty owed to H.C. by USA Water Polo, and it fails to allege an "extreme departure from ordinary standards of conduct." Judge Fletcher finds that the SAC alleges that the USA Water Polo Concussion Policy and the Zurich II Protocol instruct coaches and other officials as to the accepted standard of care for athletes who may have suffered concussions during an athletic contest. It further alleges that the Rules Governing Coaches' Conduct fall short of providing such instruction, and that the existence of the Rules does not satisfy USA Water Polo's duty of care. Based on the comparison, he agrees and concludes that the existence of the Rules does not satisfy the duty of care. Nect, he finds that the SAC alleges that USA Water Polo increased the risk of harm to H.C. by failing to adopt consensus return-to-play protocols which in turn increased the risk that players would suffer secondary concussions. As the SAC alleges, USA Water Polo is "the rule-making authority" for water polo in the United States with the self-proclaimed responsibility for player safety and health and it therefore has a duty to not increase the risk of injuries. The failure of USA Water Polo to promulgate safety rules that would have protected H.C. is sufficient to support a voluntary undertaking claim. Finally, he finds that the allegations, taken as true, demonstrate that USA Water Polo was well-aware of the severe risk of repeat concussions and of the need to implement a policy to remove players from play after suffering a head injury. USA Water Polo's inaction in the face of substantial evidence of risk of harm, constitutes an extreme departure from the ordinary standard of conduct, and amounts to gross negligence under California law. For the foregoing reasons, Judge Fletcher holds that the SAC pleads sufficient facts to support claims upon which relief can be granted under California law for negligence, voluntary undertaking, and gross negligence. Accordingly, he reversed and remanded. A full-text copy of the Court's Nov. 28, 2018 Opinion is available at https://is.gd/16zhcY from Leagle.com. Elizabeth Anne Fegan -- elaine@hbsslaw.com -- (argued), Hagens Berman Sobol Shapiro LLP, Chicago, Illinois; Steve W. Berman -- steve@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, Seattle, Washington; for Plaintiff-Appellant. Steven Jeff Renick -- sjr@manningllp.com -- (argued) and Jeffrey M. Lenkov -- jml@manningllp.com -- Manning & Kass Ellrod Ramirez Trester LLP, Los Angeles, California, for Defendant-Appellee. VIGO IMPORTING: Court Grants Bid to Dismiss Buso CLRA/CFPLA Suit ---------------------------------------------------------------- In the case, ANTHONY BUSO, individually and on behalf of all others similarly situated, Plaintiff, v. VIGO IMPORTING CO., a Florida corporation; and DOES 1 through 10, inclusive, Defendants, Case No. 18cv1328-WQH-BGS (S.D. Cal.), Judge William Q. Hayes of the U.S. District Court for the Southern District of California granted Vigo's Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(6) and 9(b). On June 19, 2018, Buso initiated the action on behalf of himself and others similarly situated by filing the Class Action Complaint against Vigo. Buso brings a cause of action for violation of the California Consumer Legal Remedies Act ("CLRA") and the California Fair Packaging and Labeling Act ("CFPLA"). Buso alleges that Vigo's product, Alessi Autentico Premium Risotto with Porcini Mushrooms (the Risotto mix), is sold in packaging with over 70 percent empty space, known as slack fill. He alleges that the slack fill violates California's consumer protection, labeling, and unfair competition laws. He seeks class certification, declaratory relief, injunctive relief, restitution and other equitable relief, compensatory and punitive damages, prejudgment interest, and attorneys' fees and costs. On July 17, 2018, Vigo filed a Motion to Dimiss, asserting that the Complaint fails to allege facts showing that a reasonable consumer would be deceived by the packaging of the Risotto mix, or that the packaging of the Risotto mix contains nonfunctional slack fill. On Aug. 6, 2018, Buso filed a response in opposition to the Motion, accompanied by a request for judicial notice. He asserts that sufficient facts were alleged in the Complaint to show that the packaging and slack fill of the Risotto mix may lead reasonable consumers to believe that the packages contain more product than is actually sold in the package. Judge Hayes finds that the package is pliable. The consumer can see and feel the package and perceive the amount of product in the package before purchasing the Risotto mix. A reasonable consumer consumer feels the amount of product in the package when picking it up off the shelf and could not plausibly be misled by the packaging of the Risotto mix. Buso's allegations are insufficient to state a CLRA claim. Next, the Judge finds that Buso fails to adequately allege nonfunctional slack fill in violation of the CFPLA under Cal. Bus. & Prof. Code Section 12606.2. The allegations of nonfunctional slack fill are inadequate to support Buso's CLRA claim. He finds that the soft packaging of the Risotto mix allows consumers to perceive the amount of product the package contains, even if the package is opaque. The consumer is able to assess the amount of product before purchasing the Risotto mix. The Complaint does not adequately allege that the packaging of the Risotto mix is a container that does not allow the consumer to fully view its contents within the meaning of Cal. Bus. & Prof. Code Section 12606.2(c). For these reasons, Judge Hayes granted the Defendant's Motion. Any motions to file an amended complaint must be filed within 30 days of the date of the Order in accordance with Local Rule 7.1. A full-text copy of the Court's Nov. 28, 2018 Order is available at https://is.gd/vza7Rx from Leagle.com. Anthony Buso, individually and on behalf of all others similarly situated, Plaintiff, represented by Scott J. Ferrell -- sferrell@pacifictrialattorneys.com -- Pacific Trial Attorneys. VIRGIN AMERICA: Court Grants Bid for Sanctions in Bernstein Suit ---------------------------------------------------------------- In the case, JULIA BERNSTEIN, et al., Plaintiffs, v. VIRGIN AMERICA, INC., et al., Defendants, Case No. 15-cv-02277-JST (N.D. Cal.), Judge Jon S. Tigar of the U.S. District Court for the Northern District of California granted the Plaintiffs' motion for sanctions pursuant to Federal Rule of Civil Procedure 37. The case is a wage-and-hour class action brought by flight attendants who work or have worked for Defendants Virgin America, Inc. and Alaska Airlines, Inc. in California. The Plaintiffs allege that Virgin violated various California labor laws regarding payment for hours worked, wage amounts, wage documentation, and the provision of meal and rest breaks. The Court certified a class of certain Virgin flight attendants, which it later decertified in part. Virgin alleges that some members of the class have waived their claims through a voluntary buyout program, Career Choice Program, in which they released all employment-related claims in exchange for a lump-sum payment and travel privileges. Virgin first raised "Waiver/Release" as an affirmative defense in its answer on May 19, 2015. On Nov. 25, 2015, the Plaintiffs requested all documents wherein a putative class member released or waived legal claims against the Defendant as well as all documents that evidence, refer or relate to the Defendant's Career Choice Program. Virgin refused to produce any signed Career Choice agreements, citing privacy concerns on behalf of the Career Choice participants and objecting to this discovery as premature prior to class certification. Instead, Virgin provided unsigned template forms that did not indicate which, if any, the potential class members had entered into such agreements. Because they were unsigned, they also did not establish that any class members had done so. On Nov. 7, 2016, the Court certified the Plaintiffs' proposed class. Fact discovery closed on Oct. 9, 2017. On Jan. 12, 2018, Virgin moved to decertify the class, asserting in part that the Court should exclude 88 Class Members who had participated in the Career Choice program. It did not produce any signed agreements of those class members. On July 9, 2018, the Court decertified the class in part, but not as to the alleged Career Choice participants. The Court concluded that it could not resolve the question of their class membership without such documents, and that the Career Choice program it did not require decertification in any event. The Court subsequently certified the Career Choice members as a subclass on Aug. 15, 2018. The parties contest exactly when, and to what degree, the Plaintiffs became aware of the identities of these 88 class members during the more than two-and-a-half years of the dispute. But all agree that Virgin did not actually produce any individual's Career Choice agreements until July 25, 2018, when Virgin produced 32 complete and 27 partial signed forms. Pursuant to the Court's Aug. 15, 2018 order, Virgin subsequently produced -- albeit after the Court's deadline -- additional documentation including email exchanges or paycheck receipts that purportedly indirectly show that 24 more of the alleged 88 class members participated in the Career Choice program. On Sept. 6, 2018, the Plaintiffs filed the motion for sanctions. Virgin does not dispute that it was obligated under the Federal Rules to disclose the documents on which it seeks to rely at trial. It argues, however, that (1) the Plaintiffs lack standing to bring the motion; (2) Virgin's failure was substantially justified; and (3) Virgin's failure was harmless. Judge Tigar finds that Virgin's failure to produce the Career Choice agreements was not substantially justified. The glaring flaw in their argument is that Virgin's justification expired on Nov. 7, 2016, when the Court certified the class. Fact discovery did not close until eleven months later, on Oct. 9, 2017. Even assuming that Virgin's objection originally had merit, Virgin failed to comply with its ongoing duty to supplement its Rule 26(a) disclosures and its response to Plaintiffs' Rule 34 request. Next, he finds that Virgin's noncompliance was not harmless. He says the harmlessness exception does not allow a party to knowingly withhold such material and shift the burden to the opposing party to chase down the information from numerous individual sources. Moreover, it has not adequately demonstrated that its actions caused no prejudice to the Plaintiffs' ability to obtain such documents. He further finds that Virgin's noncompliance was willful. Virgin does not dispute that it has had possession of the documents throughout the litigation. Even putting aside Virgin's meritless objections to the Plaintiffs' production request, Virgin also ignored its own obligation to produce during discovery evidence it wishes to rely on at trial. Moreover, merely excluding the withheld documents but allowing Virgin to litigate its affirmative defense would be an insufficient sanction, because the Plaintiffs were not permitted to fully discovery the facts of that defense during the discovery period. Finally, the Judge finds that given the willful nature of Virgin's conduct and the violation of Rule 37(c), he agrees that exercising his discretion to award reasonable fees and costs is appropriate. However, he cannot make the award at this juncture, as the Plaintiffs have not requested a specific amount or submitted supporting documentation. Judge Tigar granted the Plaintiffs' motion to exclude the disputed documents and strike Virgin's affirmative defense. He instructed the Plaintiffs to submit a request for fees and costs, with adequate supporting documentation, by Nov. 16, 2018. Virgin may file either objections or a statement of non-opposition by Nov. 30, 2018, of not more than 10 pages. The Plaintiffs may file a response of not more than five pages by Dec. 7, 2018. A full-text copy of the Court's Nov. 28, 2018 Order is available at https://is.gd/MonAjk from Leagle.com. Julia Bernstein, Esther Garcia & Lisa Marie Smith, on behalf of themselves and all others similarly situated, Plaintiffs, represented by Monique Olivier -- monique@osclegal.com -- Olivier Schreiber & Chao LLP, Alison L. Kosinski -- alison@ktlawsf.com -- Kosinski & Thiagaraj, LLP, Chiharu Gina Sekino -- csekino@sfmslaw.com -- Shepherd, Finkelman, Miller & Shah, LLP, Emily Ann Thiagaraj -- emily@ktlawsf.com -- Kosinski & Thiagaraj, LLP, James Edward Miller -- jmiller@sfmslaw.com -- Shepherd Finkelman Miller & Shah, LLP, James C. Shah -- jshah@sfmslaw.com -- Shepherd Finkelman Miller & Shah, LLP, Kolin C. Tang -- ktang@sfmslaw.com -- Shepherd Finkelman Miller & Shah, LLP, Nathan Curtis Zipperian -- nzipperian@sfmslaw.com -- Shepherd Finkleman Miller & Shah, LLC, pro hac vice & Ronald Scott Kravitz -- rkravitz@sfmslaw.com -- Shepherd, Finkelman, Miller & Shah, LLP. Virgin America, Inc., Defendant, represented by Robert Jon Hendricks -- rj.hendricks@morganlewis.com -- Morgan, Lewis & Bockius LLP, Brendan T. Killeen -- brendan.killeen@morganlewis.com -- Morgan Lewis Bockius LLP, pro hac vice, Jennifer Adkins Tomlin -- jtomlin@morganlewis.com -- Morgan, Lewis & Bockius LLP & Nancy Villarreal -- nvillarreal@morganlewis.com -- Morgan Lewis & Bockius LLP. Alaska Airlines, Inc., Defendant, represented by Robert Jon Hendricks, Morgan, Lewis & Bockius LLP & Nancy Villarreals, Morgan Lewis & Bockius LLP. WAKEFIELD & ASSOCIATES: Daniels Brings FDCPA Class Suit in Alabama ------------------------------------------------------------------ A class action lawsuit has been filed against Wakefield & Associates, Inc. The case is styled as Jaslyn Daniels individually and on behalf of all others similarly situated, Plaintiff v. Wakefield & Associates, Inc., Defendant, Case No. 1:18-cv-00499 (S.D. Ala., Nov. 29, 2018). The Plaintiff filed the case under the Fair Debt Collection Practices Act. Wakefield & Associates Inc was founded in 1982. The company's line of business includes collection and adjustment services on claims and other insurance related issues.[BN] The Plaintiff is represented by: David Schoen, Esq. 2800 Zelda Road, Suite 100-6 Montgomery, AL 36106 Phone: (334) 395-6611 Fax: (917) 591-7586 Email: DSchoen593@aol.com WALMART INC: Faces Krauss Class Action in Cal. Super. Ct. --------------------------------------------------------- A class action lawsuit has been filed against Walmart Inc. The case is styled as Hope Krauss and on behalf of all others similarly situated, Plaintiff v. Walmart Inc., Does 1 to 50, Defendants, Case No. 34-2018-00245485-CU-OE-GDS (Cal. Super. Ct., Sacramento Cty., Nov. 29, 2018). Walmart Inc. engages in the retail and wholesale operations in various formats worldwide. The company operates through three segments: Walmart U.S., Walmart International, and Sam's Club.[BN] The Plaintiff is represented by Matern J Matern, Esq. YELP INC: Court Narrows Claims in Securities Fraud Suit ------------------------------------------------------- In the case, ROEI AZAR, et al., Plaintiffs, v. YELP, INC., et al., Defendants, Case No. 18-cv-00400-EMC (N.D. Cal.), Judge Edard M. Chen of the U.S. District Court for the Northern District of California granted in part and denied in part the Defendants' motion to dismiss the class action complaint. The Plaintiffs, investors in Yelp stock, bring the putative securities class action against Defendants Yelp, Inc., its CEO Jeremy Stoppelman, CFO Lanny Baker, and COO Jed Nachman. The crux of their complaint is that Yelp made false and misleading statements regarding its expected revenues for fiscal year 2017, particularly in relation to its advertising program with local businesses. Yelp allegedly touted the program's strong advertiser retention rate and optimistic growth projections through early 2017, despite knowing that a significant number of the local advertisers were not renewing their contracts. When Yelp made downward adjustments to its projections and disclosed those retention problems in May 2017, its stock prices fell. The Plaintiffs assert that Defendants' actions violate Sections 10(b) and 20(a) of the Securities Exchange Act, as well as Rule 10b-5 promulgated thereunder. The Plaintiffs filed the suit in January 2018. On April 27, 2018, the Court granted Movant Jonathan Davis' motion to be appointed interim lead Plaintiff and for Glancy Prongay & Murlay LLP and Holzel & Holzel LLC to be appointed the interim co-lead counsel under the Private Securities Litigation Reform Act. Named Plaintiffs Azar and Jonathan Davis filed the operative amended complaint on June 25, 2018, seeking to represent the class of persons and entities that purchased or acquired Yelp securities between Feb. 10, 2017 and May 9, 2017. Pending before the Court is the Defendants' motion to dismiss the class action complaint filed on Aug. 2, 2018. Before reaching the merits, Judge Chen first addresses the Defendants' requests for judicial notice. The Defendants ask the Court to take judicial notice of the categories of documents, attached as exhibits to the Declaration of Gilbert R. Serota, or to consider them under the doctrine of incorporation by reference. The Plaintiffs do not object to the introduction of Exhibits A, D, F, H, and N. Accordingly, the Judge granted judicial notice of Exhibits A, D, F, H, and N. The Plaintiffs object to the introduction of Exhibit C, which consists of three separate Form 4 filings made by Stoppelman to the SEC to report the sales of his securities during the proposed class period. Given the Plaintiffs' reliance on Stoppelman's stock sales to plead scienter, the Judge granted judicial notice of Exhibit C. Exhibits G, I, J, K, and L are transcripts of the Defendants' earnings calls and presentations at two conferences, all of which are referenced in the complaint. Because the Plaintiffs refer extensively to the documents and the documents form the basis of their claim, the Judge also granted judicial notice of Exhibits G, I, J, K, and L. Next, Plaintiffs rely on Exhibit M, a report published by a research firm concerning the drop in Yelp's stock prices after Yelp issued its May 9, 2017 revised guidance, to establish the loss causation element of their Section 10(b) claim. Accordingly, the Judge granted judicial notice of Exhibit M. Finally, he declined to take judicial notice of Exhibit E because it is not necessary to the decision. Turning to the Defendants' Motion, Judge Chen granted in part and denied in part the Defendants' motion to dismiss. He denied the Motion with respect to the statements quoted in the First Amended Complaint paragraphs 81, 83, 87, 91, and 99; and granted with respect to the other challenged statements. Among other things, the Judge finds that (i) the Defendants made potentially misleading statements on Feb. 9, Feb. 14, and March 1 of 2017; (ii) the Defendants' statements regarding when they became aware of the churn issues, Stoppelman's stock sales during the proposed class period, and the Plaintiffs' allegations that local advertising is a core operation for Yelp combine to create a strong inference of scienter on the Defendants' part in making the allegedly misleading statement; (iii) the Plaintiffs have adequately alleged loss causation; and (iv) the Plaintiffs have stated a claim for Section 10(b) violations with respect to several of the Defendants' statements. A full-text copy of the Court's Nov. 27, 2018 Order is available at https://is.gd/pjzqwU from Leagle.com. Roei Azar, on behalf of all others similarly situated, Plaintiff, represented by Lesley F. Portnoy -- lportnoy@glancylaw.com -- Glancy Prongay & Murray LLP, Charles Henry Linehan -- clinehan@glancylaw.com -- Glancy Prongay and Murray LLP, Corey Daniel Holzer -- cholzer@holzerlaw.com -- Holzer and Holzer LLC, pro hac vice, Kevin Francis Ruf -- kevinruf@gmail.com -- Glancy Prongay & Murray LLP, Lionel Z. Glancy -- lglancy@glancylaw.com -- Glancy Prongay & Murray LLP, Robert Vincent Prongay -- RProngay@glancylaw.com -- Glancy Prongay & Murray LLP & Stan Karas -- skaras@glancylaw.com -- Glancy Prongay & Murray LLP. Jonathan Davis, Plaintiff, represented by Robert Vincent Prongay, Glancy Prongay & Murray LLP, Corey Daniel Holzer, Holzer and Holzer LLC, Kevin Francis Ruf, Glancy Prongay & Murray LLP, Lesley F. Portnoy, Glancy Prongay & Murray LLP, Lionel Z. Glancy, Glancy Prongay & Murray LLP & Stan Karas, Glancy Prongay & Murray LLP. Yelp, Inc., Jeremy Stoppelman & Lanny Baker, Defendants, represented by Gilbert Ross Serota -- gilbert.serota@arnoldporter.com -- Arnold & Porter Kaye Scholer LLP & Zheng He , Arnold & Porter Kaye Scholer LLP, pro hac vice. Jed Nachman, Defendant, represented by Gilbert Ross Serota, Arnold & Porter Kaye Scholer LLP. Gady Davidian, Movant, represented by Laurence M. Rosen -- lrosen@rosenlegal.com -- The Rosen Law Firm, P.A.. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2018. All rights reserved. ISSN 1525-2272. 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