/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/181218.mbx C L A S S A C T I O N R E P O R T E R Tuesday, December 18, 2018, Vol. 20, No. 252 Headlines AFO BOSS: Mendoza Seeks to Recoup Unpaid Overtime Wages ALL PLUMBING: Standridge Sues Over Unpaid Minimum, Overtime Wages ALLIED UNIVERSAL: Douglas Seeks Prelim. Nod of Class Settlement ALLSTATE INSURANCE: Court Dismisses Mulvey Suit Without Prejudice AM RETAIL GROUP: Faces Nixon Suit Asserting ADA Violation ANTHEM: Data Breach Victims Get Class Action Settlement Money APPTIO INC: Faces Scarantino Class Action over Merger Deal ASCENA RETAIL: Seeks Reimbursement in Settling Rougvie Suit ASSETCARE LLC: Faces Yanaway Fair Debt Collection Practices Act AT&T MOBILITY: Court Allows K. Hills to Add Class Claims BEST BUY: Oral Argument in IBEW Local Suit Set for Jan. 11 BETHESDA: Class Action Mulled Over Unpaid Fallout 76 Refunds BLUE WP: Rios Lopez Sues Over Unpaid Minimum, Overtime Wages BMW: Faces Class Action Over N63 Engine Oil Consumption Issues BOEING COMPANY: Faces Ostroff Securities Suit Over 737 Crash BOIRON INC: 9th Cir. Affirms Jury Verdict in Class Action CAMPBELL SOUP: Faces 3 Class Suits in New Jersey CANADA: 60s Scoop Class Action, Information Sessions to Start CANADA: Young Quebecers File Class Action Over Climate Change CANARY CONNECT: Reifman Sues Over Deceptive Business Practices CAPTIVA MVP: Eleventh Circuit Appeal Filed in I.T. Tsao's Suit CHEMOURS CO: Area Leaders, Lawyers React to GenX Agreement CHILDREN'S PLACE: Rael Class Action Remains Stayed CHRISTUS SANTA: Gomez Suit Alleges FLSA Violations CLIENT SERVICES: Violates FDCPA, Shapiro Suit Asserts CLOUDERA INC: Named as Defendant in Plumley Class Action COMPASS GROUP: Faces Class Action Over Hidden Credit Card Fees COOK COUNTY, IL: Bennett Moves for Certification of Inmates Class CYAN INC: Shearman & Sterling Discusses Class Action Ruling DARTMOUTH COLLEGE: Denies Campus Sexual Misconduct Charges DELL TECHNOLOGIES: City of Pontiac Employee's Class Suit Ongoing DELL TECHNOLOGIES: Hallandale Beach Retirement Plan Sues D&Os DISCOVER FINANCIAL: Arbitration Ruling in Collins Suit Affirmed DIVERSIFIED I: Puerta Sues Over Unpaid Overtime Compensation DOLLAR GENERAL: Faces Gomez Class Suit in Penn. EDISON INTERNATIONAL: Barnes Files Suit Over False Company Reports ELITE HOTELS: Honeywell Files Suit Under ADA in S.D. Florida EMAN CORP: Inga Suit to Recover Unpaid Overtime EXPEDITORS INC: Protective Order on Class Notice in Lewis Entered EXPRESS MESSENGER: Arbitration Ruling in Ege Labor Suit Affirmed FASHION INSTITUTE: Sullivan Files ADA Class Action in Texas FERRELLGAS PARTNERS: Appeal in N.Y. Class Action Underway FERRELLGAS PARTNERS: Consolidated Class Suit in Missouri Ongoing FGF BRANDS: Friend Sues Over Mislabeled Naan Products FINANCIAL RECOVERY: Taubenfliegel Sues Debt Collector Under FDCPA FLY JAMAICA: Faces Class Action Over Flight OJ256 Crash FLYWHEEL SPORTS: Fantis Sues Over Illegal SMS Ad Blasts FOCUS FINANCIAL: Sued Over Abusive Debt Collection Practices FOH ONLINE CORP: Damiano Sues Over Illegal SMS Ad Blasts FULTON COUNTY, GA: Class Action Over Jail Release Policy Okayed GC SERVICES: Garita Files Suit Under FDCPA in New York GENERAL ASSEMBLY: Court Enters Final Judgment in Marin FLSA Suit GREENSTAR AGRICULTURAL: March 26 Claims Filing Deadline Set H&R BLOCK: Faces Class Action Over No-Poach Agreements HARRY'S NURSES: Seeks 2nd Cir. Review of Orders in Gayle Suit HASTINGS COLLEGE: Sullivan Suit Asserts Disabilities Act Breach HAYES BEER: Ill. App. Affirms Reversal of Byrne Suit Dismissal I3 VERTICALS: Settlement in Expert Auto Suits Receives No Objection IDG COMMUNICATIONS: Sullivan Suit Asserts ADA Violation IDT CORP: Appeal in JDS1 LLC Class Suit Still Pending IDT CORP: Bid to Dismiss Dennis Class Suit Denied INFILAW CORP: Plaintiffs Challenge Class Action Settlement IVARI: Court Says Reasonable to Seek Direct Notice Program JANSSEN RESEARCH: Haugen Sues Over Xarelto Side Effects JOE MACHENS: Mo. App. Flips Arbitration Bid Denial in Fogelsong JOHNSON & JOHNSON: Sued Over Opioid-related Insurance Coverage KESOKI PAINTING: Limonta Sues Over Unpaid Overtime Wages KIRKLAND'S INC: Continues to Defend Miles Class Action KIRKLAND'S INC: Still Awaits 3rd Cir. Decision in Kamal v. J. Crew LA JOLLA: Failed to Properly Pay Signature Gatherers, Wilson Claims LA OFICINA: Rosa Seeks to Recover Unpaid Minimum, Overtime Pay LIBERTY TAX: Class Action Parties Fail to Reach Accord LMB MORTGAGE: Sued by Pickett for Illegally Sending Advertisement LTD FINANCIAL: 11th Cir. Affirms Judgment in Baez FDCPA Suit LULULEMON ATHLETICA: Still Defends Gathmann-Landini Suit LVMH MOET HENNESSY: Faces Nixon ADA Class Action in NY MARRIOTT INTERNATIONAL: Oakes Sues Over Stolen Personal info MARRIOTT INTERNATIONAL: Reynolds Sues Over Failure to Secure PII MATSU CORP: Zhu Moves for Class Certification and Notification MDL 2741: Calkins Suit v. Monsanto over Roundup Sales Consolidated MDL 2741: Monares Suit v. Monsanto over Roundup Sales Consolidated MDL 2741: Potter Suit v. Monsanto over Roundup Sales Consolidated MENARD INC: Class in Astarita FLSA Suit Conditionally Certified MERCHANT FUNDING: Fabricant Suit Alleges TCPA Violation MEREDITH CORP: Nixon Files Suit under ADA in E.D. New York MGM RESORTS: Settlement in Hanson EFTA Suit Has Final Approval MOBILOIL FEDERAL: Whittington Appeals Order in Overdraft Fee Suit MOMENTA PHARMA: Court Narrows Claims in Antitrust Suit MONSANTO COMPANY: Nash-Boulden Sues over Sale of Herbicide Roundup MONSANTO COMPANY: Ploof Sues over Sale of Herbicide Roundup MONSANTO COMPANY: Shapiros Sue over Sale of Herbicide Roundup MOTHERISK: Court Upholds Dismissal of Hair Test Class Action MOUNT IDA: Former Students File Privacy Violation Class Action NATIONWIDE CREDIT: Chung Files Consumer Credit Class Suit NATURAL LIVING: Yates Files Class Action for Fraud NCAA: Faces Concussion Class Action in Indiana NEIMAN MARCUS: Continues to Defend Lopez Class Action NEIMAN MARCUS: Cyber-Attack Class Suits Ongoing NEIMAN MARCUS: Final Approval Hearing on Attia Settlement in Feb. NEIMAN MARCUS: NLRB Proceedings Over Class Action Waiver Ongoing NEIMAN MARCUS: Plan Beneficiary's Suit Dismissed NEIMAN MARCUS: Settlement in Rubenstein Suit Already Final NEW YORK: Aliyev Sues ACS for Negligence Over Child's Death NEW YORK: Parker Prisoners Suit Settlement Has Final Approval NHS PENNSYLVANIA: Brown Seeks Certification of Specialists Class NUCOR CORP: Court Denies Roane's Bid to Opt-Out in Brown Settlement NUTRACEUTICAL CORP: SCOTUS Hears Arguments in Cobra Case NUVASIVE INC: Mauss Securities Suit Settlement Has Final Approval OOMA INC: Discovery Ongoing in Barnett Consolidated Class Suit OOMA INC: Dolemba Class Action Ongoing PARFUMS DE COEUR: Okoe Sues Over Misleading Product Ads PATTERSON COS: Executes Settlement Pact in Dental Supplies Suit PATTERSON COS: Faces Kramer Class Action in California PATTERSON COS: Still Defends Plymouth County Retirement Suit PAY-O-MATIC CHECK: Accused by Luyando of Violating FLSA and NYLL PEKIN, IL: Berardi Files Suit under Disabilities Act PERMANENT WORKERS: Portillo Appeals W.D. La. Ruling to 5th Cir. PORT RESOURCES: First Circuit Appeal Filed in Giguere Suit PPDAI GROUP: Rosen Law Firm Files Securities Class Action PROFESSIONAL ACCOUNT: Faces Lowenbien Class Suit for FDCPA Breach RCKC CORPORATION: Does not Properly Pay Employees, Suit Says RESULTS COMPANIES: Gibbs Seeks Wages for Off-the-Clock Work RISTORANTE LA BUCA: Wright Seeks to Certify Tipped Workers Class SAMSUNG ELECTRONICS: Faces Mercado Suit Over False Ads SANTA CLARA, CA: Consent Decree in Cole Has Prelim OK SENDGRID INC: Faces Rosenblait Suit Over Sale to Twilio Inc. SIGNET JEWELERS: Bid to Dismiss N.Y. Consolidated Suit Denied SIGNET JEWELERS: Still Awaits Court Decision on Claimants' Appeal SK 1448 INC: Maldonado Sues Over Unpaid Minimum, Overtime Wages SPECIALIZED LOAN: Forbes Suit Alleges FDCPA Violations SRC ENERGY: Schneider Suit Seeks to Recoup Unpaid Wages ST JUDE: Third-Party Funding Agreement Gets Conditional Approval STEEL WORLD: Hernandez Suit Seeks to Recover Unpaid Overtime STERN & STERN: Faces Liantonio Suit Under FDCA in E.D. New York STITCH FIX: 3 TV Advertising Class Suits Filed in California SUTTELL & HAMMER: Duffer Disputes Collection Letter TEXAS: Abbott Appeals Decision in M.D. Suit to Fifth Circuit TEXAS: Rodriguez Sues Over License Suspension Scheme TILLY'S INC: Awaits Written Opinion in Ward Class Action TILLY'S INC: De Minimis Amount of Settlement Coupons Redeemed TIME WARNER: 2nd Amended Sims Allowed to Substitute Named Plaintiff TRANS UNION: Norman Suit Alleges FCRA Violation UBER TECHNOLOGIES: Maurice Blackburn Widens Class Action UNITED NATURAL: Appeal in Class Suit v. SUPERVALU Underway UNITED NATURAL: Customer Data Security Breach v. SUPERVALU Ongoing UT SOUTHWESTERN: Hospital Faces Class Action for ADA Violation VERINT SYSTEMS: Mediation Underway in Tel Aviv Suit VILLAGE OF FOX LAKE: Court Denies Bids to Dismiss Willoughby Suit VIRGINIA: DHHR Averts Class Action Over IDD Waiver VIRTUOSO SOURCING: Faces Consumer Credit Class Action in NJ VOLKSWAGEN: German Motorists Invited to Join New Class Action WATERSTONE MORTGAGE: Kilpatrick Townsend Attorneys Discuss Ruling WRIGHT BROS PIZZA: Shortchanges Workers' Wages, Honaker Says XO GROUP: Agreement Reached in Merger-Related Class Suits XPO LOGISTICS: McNiven Suit Removed to S.D. Florida XTO ENERGY: McCollum Seeks to Certify Drilling Consultants Class ZIMMER BIOMET: Seeks 9th Cir. Review of Order in Karl FLSA Suit ZOCDOC INC: 2d Cir. Revives Junk Fax Class Action ZUMIEZ INC: Oral Argument in Herrera Class Suit Set for Feb. 4 ZURICH AMERICAN: Sued Over Failure to Fulfill Duties to Enrollees ZWILLING J.A. HENCKELS: Faces Nixon Suit in NY for ADA Violation [*] Reed Smith Attorney Discusses Several Class Action Rulings [*] Switzerland Proposes New Class Action Procedure ********* AFO BOSS: Mendoza Seeks to Recoup Unpaid Overtime Wages ------------------------------------------------------- Emmanuel S. Mendoza, on behalf of himself and all others similarly situated, Plaintiff v. AFO Boss, LLC, Brenon Young, individually, AND Richard Lee, individually, Defendants, Case No. 7:18-cv-00221 (W.D. Tx., December 4, 2018) is a collective action seeking to recover overtime compensation, liquidated damages, attorney's fees, litigation expenses, costs of court, and pre-judgment and post-judgment interest under the provisions of the Fair Labor Standards Act of 1938. Defendants willfully committed violations of the FLSA by failing to pay overtime premiums to their employees for hours worked in excess of forty hours per week, says the complaint. Instead of paying their operators overtime premiums for all hours worked over forty in a workweek, Defendants treated all hours as having been worked over the course of two weeks, in an attempt to minimize/eliminate their obligation to pay overtime premiums. As such, Mr. Mendoza and the putative class are owed a half-time premium for all hours worked above forty per pay period, minus whatever hours were properly paid at time and one-half. Plaintiff Emmanuel Mendoza is an individual residing in New Mexico. AFO Boss, LLC has not registered with the Texas Secretary of State's office, although it lists itself as the employer on Mendoza's paychecks. Brenon Young and Richard Lee were employers of Plaintiff and those similarly situated.[BN] The Plaintiff is represented by: Douglas B. Welmaker, Esq. Moreland Verrett, PC 2901 Bee Cave Rd, Box L Austin, TX 78746 Phone: (512) 782-0567 Fax: (512) 782-0605 Email: doug@morelandlaw.com ALL PLUMBING: Standridge Sues Over Unpaid Minimum, Overtime Wages ----------------------------------------------------------------- James Standridge, individually and on behalf of all others similarly situated, Plaintiff, v. All Plumbing Plus Inc., Clarence Harbour, and Laura Butler, Defendants, Case No. 5:18-cv-01265 (E.D. Ark., December 5, 2018) is an action against Defendants for violations of the Fair Labor Standards Act, the Arkansas Minimum Wage Act, and the Arkansas "Last Paycheck" law. Plaintiff seeks a declaratory judgment, monetary damages, liquidated damages, prejudgment interest, and costs, including a reasonable attorney's fee, within the applicable statutory limitations period, as a result of Defendants' failure to pay proper minimum wage and overtime compensation under the FLSA and the AMWA, Defendants' failure to properly pay to Plaintiff his wages earned prior to his discharge from employment after Plaintiff made lawful demand upon Defendants for payment to which he is owed, and Defendants' receipt of services performed by Plaintiff and money to which Plaintiff is entitled for which Defendants knowingly and maliciously provided no benefit or consideration in exchange, despite knowing that Plaintiff performed such services with the anticipation of receiving compensation, says the complaint. James Standridge is a citizen of the United States and a resident of and domiciled in the State of Arkansas. Plaintiff was employed by Defendants as an hourly-paid employee for Defendants' plumbing and electrical business in Russellville. All Plumbing Plus Inc., is a domestic for-profit corporation, organized and conducting business under the laws of the State of Arkansas. Defendant operates a plumbing business providing plumbing and electrical services in and around the area of Russellville, Arkansas. Clarence Harbour is an individual and resident of Pope County. Laura Butler is an individual and resident of Pope County.[BN] The Plaintiff is represented by: Christopher Burks, Esq. Josh Sanford, Esq. SANFORD LAW FIRM, PLLC One Financial Center 650 South Shackleford, Suite 411 Little Rock, AR 72211 Telephone: (501) 221-0088 Facsimile: (888) 787-2040 Email: chris@sanfordlawfirm.com josh@sanfordlawfirm.com ALLIED UNIVERSAL: Douglas Seeks Prelim. Nod of Class Settlement --------------------------------------------------------------- The Plaintiff in the lawsuit styled KIRK DOUGLAS, individually and on behalf of all others similarly situated v. ALLIED UNIVERSAL SECURITY SERVICES ALLIED BARTON SECURITY SERVICES LLC and ALLIED SECURITY HOLDING LLC, Case No. 1:17-cv-6093 (E.D.N.Y.), asks the Court to preliminary approve the settlement reached by the parties in this action as embodied in their Settlement Agreement. The Plaintiff also seeks an order: (1) provisionally certifying this settlement class under Rule 23 of the Federal Rules of Civil Procedure in connection with the settlement process: all present and former persons employed as Airport Security Agents, Operation Assistants, or Tour Supervisors at JFK by Defendants at any time between September 1, 2013 and the date of preliminary approval of the settlement or 180 days from execution of this Agreement, whichever occurs first; (2) provisionally certifying this settlement class under the Fair Labor Standards Act, 29 U.S.C. Section 216(b), in connection with the settlement process: all present and former persons employed as Airport Security Agents, Operation Assistants, or Tour Supervisors at JFK by Defendants at any time between October 18, 2014 and the date of preliminary approval of the settlement or 180 days from execution of this Agreement, whichever occurs first; (3) approving the proposed Notice to Plaintiffs attached to the Settlement Agreement; (4) appointing The Law Office of Christopher Q. Davis, PLLC, as Class Counsel; (5) appointing RG2 Claims Administration as the Administrator; and (6) approving the Parties' proposed schedule for final settlement approval.[CC] The Plaintiff is represented by: Christopher Q. Davis, Esq. Rachel M. Haskell, Esq. THE LAW OFFICE OF CHRISTOPHER Q. DAVIS, PPLC 225 Broadway, Suite 1803 New York, New York 10007 Telephone: (646) 430-7932 E-mail: cdavis@workingsolutionsnyc.com rhaskell@workingsolutionsnyc.com ALLSTATE INSURANCE: Court Dismisses Mulvey Suit Without Prejudice ----------------------------------------------------------------- Judge Ed Kinkeade of the U.S. District Court for the Northern District of Texas, Dallas Division, dismissed without prejudice the case, AARON MULVEY, Individually and on Behalf of Himself, and all Others Similarly Situated, Plaintiff, v. ALLSTATE INSURANCE COMPANY, ALLSTATE TEXAS LLOYDS, INC., and Doe Individuals and Corporations 1-100 Inclusive, Defendants, Civil Action No. 3:18-CV-1271-K (N.D. Tex.). Mulley filed the lawsuit as a class action on May 17, 2018 in the Court. In his Complaint, the Plaintiff alleges Defendants Allstate Insurance and Allstate Texas obtained the motor vehicle records of Texas drivers for impermissible purposes under the Driver's Privacy Protection Act of 1994 ("DPPA"). As a result, he alleges he and the other class members suffered harm to their privacy interests codified in the DPPA and subsequently filed this lawsuit. The Defendants filed the instant Motion to Dismiss. They argue that the case must be dismissed because: (1) the Plaintiff lacks standing to bring the suit; and (2) the Plaintiff failed to state a claim for relief. More specifically, as to standing, they assert that the Plaintiff has not alleged any facts suggesting or specifying that his own information was obtained for impermissible purposes thereby violating the DPPA. The Plaintiff responds that Congress created a right under the DPPA to protect the privacy of drivers, there is recognized harm to the Plaintiffs whose information was improperly obtained by Defendants, and, even though the harm may be intangible, it is still concrete, so the Plaintiff has standing. In their reply, the Defendants contend that the Plaintiff fails to allege or otherwise indicate that his own information was actually obtained and, as a result, he does not and cannot allege a particularized and concrete injury, a required element of standing. Judge Kinkeade agrees with the Defendants. The Plaintiff fails to allege he suffered an injuryin-fact which is the first and foremost' of standing's three elements. To establish an injury-in-fact in the case, the Plaintiff was required to allege that his own information was knowingly obtained by the Defendant for an impermissible purpose. His Class Action Complaint, in which his allegations regarding the Defendants' conduct reference other potential class members, does not clearly allege that his own personal information was obtained by the Defendant. Merely alleging that the Defendants obtained drivers' information without consent and without a permissible purpose does not satisfy the Plaintiff's burden to allege facts demonstrating the particularized and concrete injury-in-fact requirement of standing. Therefore, the Judge concludes that the Plaintiff cannot meet his burden to allege or establish he suffered an injury-in-fact which is the first and foremost of the required elements of standing. Accordingly, because Mulvey did not have standing at the time the lawsuit was filed, the case must be dismissed without prejudice because the Court lacks subject matter jurisdiction. The Judge granted the Defendants' Motion to Dismiss. A full-text copy of the Court's Dec. 4, 2018 Memorandum Opinion an Order is available at https://is.gd/R8BdYO from Leagle.com. Aaron Mulvey, individually, and on behalf of a himself and all others similarly situated individuals, Plaintiff, represented by Joseph Hanson Malley, Law Offices of Joseph H Malley PC. Allstate Insurance Company, Defendant, represented by Elizabeth Marie Dulong Scott -- edscott@akingump.com -- Akin Gump Strauss Hauer & Feld LLP, Kathryn E. Deal -- kdeal@akingump.com -- Akin Gump Strauss Hauer & Feld LLP, pro hac vice, Lauren Elisabeth York -- lyork@akingump.com -- Akin Gump Strauss Hauer & Feld LLP, Michelle A. Reed -- mreed@akingump.com -- Akin Gump Strauss Hauer & Feld & Roger D. Higgins -- rhiggins@thompsoncoe.com -- Thompson Coe Cousins & Irons LLP. Allstate Texas Lloyd's Inc, Defendant, represented by Elizabeth Marie Dulong Scott, Akin Gump Strauss Hauer & Feld LLP, Kathryn E. Deal, Akin Gump Strauss Hauer & Feld LLP, pro hac vice, Lauren Elisabeth York, Akin Gump Strauss Hauer & Feld LLP & Michelle A. Reed, Akin Gump Strauss Hauer & Feld. AM RETAIL GROUP: Faces Nixon Suit Asserting ADA Violation --------------------------------------------------------- A class action lawsuit has been filed against AM Retail Group Inc. The case is styled as Donald Nixon, on behalf of himself and all others similarly situated, Plaintiff v. AM Retail Group Inc, Defendant, Case No. 1:18-cv-06918 (E.D. N.Y., December 5, 2018). The lawsuit arises under the Americans with Disabilities Act. AM Retail Group Inc. operates retail stores in the United States. Its stores offer men and women outerwear, as well as fashion accessories, such as handbags, briefcases, and travel items; handcrafted shoe; and women’s athletic and performance wear. The company was incorporated in 2008 and is based in Brooklyn Park, Minnesota. AM Retail Group Inc. operates as a subsidiary of G-III Apparel Group, Ltd.[BN] The Plaintiff is represented by: Jonathan Shalom, Esq. Shalom Law, PLLC. 124-04 Metropolitan Avenue Kew Gardens, NY 11374 Tel: (718) 971-9474 Email: jshalom@jonathanshalomlaw.com ANTHEM: Data Breach Victims Get Class Action Settlement Money ------------------------------------------------------------- Shannon Behnken, writing for WFLA, reports that some victims of the largest health data breach in history are receiving payouts. Anthem tells 8 On Your Side it has reached a settlement in a class action lawsuit. This comes after the company announced in 2015 that the personal information of 80 million customers was hacked. Those who joined the suit should receive an email about their $50 payout. In addition, $15 million was set aside for customers' out-of-pocket expenses. Among the personal information compromised was social security numbers, street addresses and birth dates. It's everything a con artist needs to become you, on paper, and steal your identity. In fact, some victims first discovered a problem when they tried to file taxes and learned someone else already filed in their name. At the time, the company offered free credit monitoring and many signed up for the class action lawsuit. As part of that settlement, Anthem agreed to shell out $115 million. An Athem spokeswoman confirmed some class members are receiving emails about their settlement and money is being deposited into PayPal accounts for customers. Others will receive checks. Anthem sent this statement to 8 On Your Side: "Anthem does not admit any wrongdoing or acknowledge that any individuals were harmed as a result of the cyber attack. Nevertheless we are pleased to be putting this litigation behind us." If you think you should have received money and didn't, you can contact the settlement administrator at 1-855-636-6136 or at www.anthemfacts.com/cyber-attack. [GN] APPTIO INC: Faces Scarantino Class Action over Merger Deal ---------------------------------------------------------- Apptio, Inc. said in its Form 8-K filing with the U.S. Securities and Exchange Commission filed on December 10, 2018, that it has been named as defendant in a class action suit entitled, Scarantino v. Apptio, Inc. et al. On November 9, 2018, Apptio, Inc., a Delaware corporation ("Apptio" or the "Company"), entered into an Agreement and Plan of Merger (the "Merger Agreement") with Bellevue Parent, LLC, a Delaware limited liability company ("Parent"), and Bellevue Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary of Parent ("Merger Sub"), providing for the merger of Merger Sub with and into the Company (the "Merger"), with the Company surviving the Merger as a wholly owned subsidiary of Parent. On December 6, 2018, a purported stockholder class action lawsuit captioned Scarantino v. Apptio, Inc. et. al., Case No. 1:18-cv-01938, was filed in the United States District Court for the District of Delaware against the Company and its directors. The lawsuit alleges, generally, that the Company and its directors violated Section 14(a) of the Securities Exchange Act of 1934 (the "Exchange Act"), and Rule 14a-9 thereunder by purportedly omitting material information from the proxy statement issued in connection with the Merger. The lawsuit also purports to allege violations of Section 20(a) of the Exchange Act against the Company's directors. The lawsuit seeks, among other things, equitable relief that would enjoin the consummation of the proposed Merger, rescission of the proposed Merger to the extent it is consummated, and attorneys' fees and costs. Additional similar lawsuits may be filed in the future. The Company believes that the plaintiff's allegations lack merit and will vigorously defend against this and any subsequently filed similar actions. Apptio, Inc. provides cloud-based technology business management (TBM) solutions to enterprises. Its cloud-based platform and SaaS applications enable IT leaders to analyze, optimize, and plan technology investments, as well as to benchmark financial and operational performance against peers. The company operates in the United States, the United Kingdom, Germany, Denmark, the Netherlands, Australia, Canada, France, Singapore, and Italy. Apptio, Inc. was founded in 2007 and is headquartered in Bellevue, Washington. ASCENA RETAIL: Seeks Reimbursement in Settling Rougvie Suit ----------------------------------------------------------- Ascena Retail Group, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on December 10, 2018, for the quarterly period ended November 3, 2018, that the Company has filed a motion seeking reimbursement for a limited portion of the settlement fund attributable to vouchers redeemed by class members that had been self-funded by the Company. The Company is a defendant in class action lawsuits that allege that Justice's promotional practices violated state comparative pricing and other laws. On September 24, 2015, a formal settlement agreement was signed with the plaintiffs in the Rougvie case to settle the lawsuit on a class basis for the period of January 1, 2012 through February 28, 2015 for approximately $51 million, including payments to members of the class and payment of legal fees and expenses of settlement administration. On July 29, 2016, the Court granted the parties' joint motion for final approval of settlement and dismissed the case with prejudice. After an appeal to the United States Court of Appeals for the Third Circuit was dismissed, distributions to class members pursuant to the settlement took place in the fall of 2017. The redemption period for all vouchers distributed to the class members has now ended. The Company filed a motion at the end of November 2018 seeking reimbursement for a limited portion of the settlement fund attributable to vouchers redeemed by class members that had been self-funded by the Company. Ascena Retail Group, Inc., through its subsidiaries, operates as a specialty retailer of apparel, shoes, and accessories for women and tween girls in the United States, Canada, and Puerto Rico. The company operates through four segments: Premium Fashion, Value Fashion, Plus Fashion, and Kids Fashion. The company was formerly known as Dress Barn, Inc. and changed its name to Ascena Retail Group, Inc. in January 2011. Ascena Retail Group, Inc. was founded in 1962 and is based in Mahwah, New Jersey. ASSETCARE LLC: Faces Yanaway Fair Debt Collection Practices Act ---------------------------------------------------------------- A class action lawsuit has been filed against AssetCare LLC. The case is styled as Ryan Yanaway, individually and on behalf of all others similarly situated, Plaintiff v. AssetCare LLC, CF Medical LLC and John Does, Defendants, Case No. 4:18-cv-04557 (S.D. Tex., December 3, 2018). The lawsuit arises under the Fair Debt Collection Practices Act. AssetCare LLC offers debt consolidation services in Sherman, Texas.[BN] The Plaintiff is represented by: Francis Richard Greene, Esq. Stern Thomasson LLP 150 Morris St 2nd Floor Springfield, NJ 07081-1315 Tel: (973) 379-7500 Email: francis@sternthomasson.com - and – Philip David Stern, Esq. Stern Thomasson LLP 150 Morris Ave 2nd Floor Springfield, NJ 07081-1315 Tel: (973) 379-7500 Email: philip@sternthomasson.com - and – Andrew T. Thomasson, Esq. Stern Thomasson LLP 150 Morris Avenue, 2nd Floor Springfield, NJ 07081-1315 Tel: (973) 379-7500 Fax: (973) 532-5868 Email: andrew@sternthomasson.com AT&T MOBILITY: Court Allows K. Hills to Add Class Claims -------------------------------------------------------- In the case, KATIA HILLS, Plaintiff, v. AT&T MOBILITY SERVICES, LLC, a/k/a AT&T Mobility LLC, et al., Defendants, Case No. 3:17-cv-556-JD-MGG (N.D. Ind.), Magistrate Judge Michael G. Gotsch, Sr. of the U.S. District Court for the Northern District of Indiana, South Bend Division, (i) granted in part and denied in part Hills' Motion for Leave to Add New Party and Class Action Allegations to Second Amended Complaint; and (ii) denied her Conditional Motion to Transfer Venue. On May 14, 2018, Hills filed her Motion for Leave. She seeks the Court's permission to add Cynthia Allen as an additional named Plaintiff in her putative class action. On the same day, Hills also filed a Motion to Transfer. She asks the Court to transfer the case to the Northern District of Georgia in the event she is not granted permission to add Allen as a Plaintiff in the action. The action arises from AT&T's alleged violations of Title VII of the Civil Rights Act of 1964 ("Title VII"), the American with Disabilities Act, and the Family Medical Leave Act ("FMLA") related to Hills' employment with an AT&T Mobility retail store in Indiana, between April 2014 and July 2015. Hills filed her original complaint with the Court on July 14, 2017, alleging disparate treatment based on sex arising from her pregnancy as well as claims of sexual harassment under Title VII; failure to provide a reasonable accommodation under the ADA; and interference and retaliation under the FMLA. In support, Hills alleged discrimination in AT&T's application of its "Sales Attendance Guidance" policy ("SAG") under which employees accrue "points" or fractions thereof for unexcused absences and tardiness. Points can be avoided if an absence qualifies as "excused" under SAG. SAG delineates 13 categories of excused absences, none of which explicitly relate to pregnancy. Hills was terminated after accruing points under SAG for a series of unexcused absences arising from her pregnancy. Hills alleges that AT&T applied SAG more strictly against her than against male or non-pregnant employees; that her store manager was hostile toward her pregnancy; and that her FMLA request related to her pregnancy was denied improperly. On Feb. 6, 2018, however, Hills filed her First Amended Complaint -- the current operative complaint -- raising only the FMLA claims. Meanwhile, Hills had filed an Amended Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC") adding claims that similarly situated employees were being treated like her. Cynthia Allen also had a similar Charge pending before the EEOC. Allen, an AT&T Mobility employee in two New York stores and one Nevada store from December 2012 through April 2017, had received excused leave for her pregnancy-related medical needs for her two pregnancies in New York but was terminated in Nevada after accumulating points during her third pregnancy and while tending to her newborn child. In her EEOC Charge, Allen alleged that she was unable to secure excused absences and faced hostility from her Nevada store manager, without help from an area manager, when seeking assistance with her FMLA requests under SAG. Both EEOC Charges explained that AT&T amended SAG in the spring of 2015, in the middle of both Hills's and Allen's tenure with AT&T Mobility. Hills outlined the changes to the point accrual policy, including but not limited to, a shift in who was authorized to make exceptions in the application of SAG. She reported that the old policy allowed exceptions to SAG in an employee's supervisor's discretion while the new policy allowed SAG exceptions at the company's discretion. After Hills informed the Court of the pending status of both hers and Allen's EEOC Charges through a motion to stay and a subsequent status repor, the Court directed her to request a Right to Sue letter from the EEOC to keep this case progressing. Having timely made that request, Hills filed the Motion for Leave to Amended Complaint. Hills' proposed Second Amended Complaint adds Allen as a named Plaintiff and presents class action allegations focused on the alleged creation, implementation, and enforcement of SAG by a corporate level committee rather than by local managers. AT&T does not object to the addition of class action allegations, but argues that Allen cannot be joined because (1) her claims do not arise out of the same transactions or occurrences as required under Fed. R. Civ. P. 20, (2) Allen's and Hills' claims turn on disparate evidence and witnesses, and (3) the proposed joinder would be futile because this Court does not have personal jurisdiction over AT&T with respect to Allen's claims. AT&T also objects to Hills' alternative motion for transfer contending that (1) Hills is attempting improper forum shopping by seeking transfer, (2) Georgia is neither a proper nor convenient forum given the location of key witnesses in Indiana not Georgia, and (3) the interests of justice related to judicial efficiencies favor this forum. Hills, on the other hand, argues that the interests of justice warrant transfer -- in the event Allen is not added as a Plaintiff in the action -- to prevent inconsistent results between her putative class action here and the Allen putative class action already filed in Georgia. Magistrate Judge Gostch finds that despite any connection to a common corporate policy, Hills' and Allen's claims are inextricably intertwined with the unique circumstances of their pregnancies, the recommendations of their supervisors, and their FMLA applications. Even corporate decisions to award attendance points, to refuse to excuse attendance points, or to terminate Hills' and Allen's employment would be dependent on highly personalized transactions or occurrences at different times and places. Notably, Hills and Allen allege that the discrimination against them occurred because of disparate treatment of the SAG policy. Thus, they have made their own personal interactions with the policy, rather the policy alone, the focus of the lawsuits. In so doing, they are not presenting claims arising from related transactions or occurrences let alone the "same" transaction or occurrence required under Rule 20. Next, he finds that Hills has established neither general nor specific jurisdiction in this Court over AT&T Mobility or AT&T Services for Allen's putative class action claims. Without such jurisdiction, Allen's claims are futile such that adding her as a Plaintiff in the action is not warranted. Hills' reply brief related to her motion to amend and her conditional motion for transfer imply that she was concerned about the jurisdictional issue, but she raised no explicit argument that personal jurisdiction for Allen's claims existed in the Court. Instead, Hills turned her attention to her alternative request for transfer in the interest of advancing hers and Allen's claims in a single litigation, rather than piecemeal. Unable to grant Hills's motion to amend to add Allen as a Plaintiff, the Judge now considers Hills' alternative motion to transfer. He finds that Hills has not established proper venue pursuant to Section 1391(b) for both the Court and the Northern District of Georgia as required for transfer under Section 1404(a). Hills cannot argue that there is no district other than the Northern District of Georgia in which she could have otherwise brought her claims. Her claims are clearly properly venued here in the Northern District. Having failed to establish proper venue in the Northern District of Georgia, transfer is not warranted. Moreover, the corporate AT&T witnesses would probably have greater resources to accommodate any necessary travel as part of this litigation compared to those available to Hills and the individual witnesses in Indiana. Therefore, the convenience of witnesses factor might favor litigation in the Court, but is probably of greater benefit to neither party. Finally, both courts are equally familiar with the relevant law. And once again, the controversy in inextricably linked to events in Indiana. Hills has not shown that valid interest is greater than Indiana's valid interest in the claims growing out of employment issues in its State. Therefore, the interests of justice do not justify transfer. For the reasons discussed, Magistrate Judge Gostch denied in part Hills' motion to amend the complaint to add Allen as a Plaintiff, and granted in part her motion to amend to add class allegations. He denied Hills' alternative conditional motion to transfer. The Plaintiff may file a second amended complaint, including the relevant class allegations incorporated into her proposed second amended complaint related to the instant motion to amend, by Dec. 11, 2018. The Magistarte directed the Clerk to seal the proposed amended complaint accompanying Hills' instant motion to amend to avoid confusion on the docket going forward. A full-text copy of the Court's Dec. 4, 2018 Opinion and Order is available at https://is.gd/vjNyqB from Leagle.com. Katia Hills, Plaintiff, represented by Gillian L. Thomas, American Civil Liberties Union, pro hac vice, Joseph M. Sellers -- jsellers@cohenmilstein.com -- Cohen Milstein Sellers & Toll, pro hac vice, Kalpana Kotagal -- kkotagal@cohenmilstein.com -- Cohen Milstein Sellers & Toll, pro hac vice, Lynn A. Toops -- LTOOPS@COHENANDMALAD.COM -- Cohen & Malad LLP & Miriam R. Nemeth -- mnemeth@cohenmilstein.com -- Cohen Milstein Sellers & Toll, pro hac vice. AT&T Mobility Services LLC, also known as AT&T Mobility LLC & AT&T Services, Inc., Defendants, represented by Alexander J. Maturi -- alexmaturi@paulhastings.com -- Paul Hastings LLP, pro hac vice, Alison M. Lewandoski, Paul Hastings LLP, pro hac vice, Brian M. Hayes -- brianhayes@paulhastings.com -- Paul Hastings LLP, pro hac vice & Kenneth W. Gage -- kennethgage@paulhastings.com -- Paul Hastings LLP, pro hac vice. BEST BUY: Oral Argument in IBEW Local Suit Set for Jan. 11 ---------------------------------------------------------- Best Buy Co., Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on December 7, 2018, for the quarterly period ended November 3, 2018, that on January 11, 2019, the District Court Judge in the case entitled, IBEW Local 98 Pension Fund v. Best Buy Co., Inc., et al., is scheduled to hear argument on the Best Buy motion for summary judgment on the remaining claims. In February 2011, a purported class action lawsuit captioned, IBEW Local 98 Pension Fund, individually and on behalf of all others similarly situated v. Best Buy Co., Inc., et al., was filed against the company and certain of its executive officers in the U.S. District Court for the District of Minnesota. This federal court action alleges, among other things, that the company and the officers named in the complaint violated Sections 10(b) and 20A of the Exchange Act and Rule 10b-5 under the Exchange Act in connection with press releases and other statements relating to our fiscal 2011 earnings guidance that had been made available to the public. Additionally, in March 2011, a similar purported class action was filed by a single shareholder, Rene LeBlanc, against the company and certain of its executive officers in the same court. In July 2011, after consolidation of the IBEW Local 98 Pension Fund and Rene LeBlanc actions, a consolidated complaint captioned, IBEW Local 98 Pension Fund v. Best Buy Co., Inc., et al., was filed and served. Following discovery and motion practice Plaintiffs moved to certify the purported class. By Order filed August 6, 2014, the court certified a class of persons or entities who acquired Best Buy common stock between 10:00 a.m. EDT on September 14, 2010, and December 13, 2010, and who were damaged by the alleged violations of law. The 8th Circuit Court of Appeals granted the company's request for interlocutory appeal. On April 12, 2016, the 8th Circuit held the trial court misapplied the law and reversed the class certification order. IBEW petitioned the 8th Circuit for a rehearing en banc, which was denied on June 1, 2016. On June 23, 2017, the trial court denied plaintiff's request to file a new Motion for Class Certification. On October 30, 2017, plaintiffs filed a motion for leave to file a second amended class action complaint which the Magistrate Judge denied on July 11, 2018. On August 24, 2018, the District Court Judge overruled plaintiff's objections to that ruling, affirming the Magistrate Judge's denial of leave to amend. On January 11, 2019, the District Court Judge is scheduled to hear argument on the Best Buy motion for summary judgment on the remaining claims. Best Buy said, "We continue to believe that the remaining individual plaintiff's allegations are without merit and intend to vigorously defend our company in this matter." Best Buy Co., Inc. operates as a retailer of technology products, services, and solutions in the United States, Canada, and Mexico. The company operates in two segments, Domestic and International. The company was formerly known as Sound of Music, Inc. Best Buy Co., Inc. was founded in 1966 and is headquartered in Richfield, Minnesota. BETHESDA: Class Action Mulled Over Unpaid Fallout 76 Refunds ------------------------------------------------------------ Pingal Pratyush, writing for Spiel Times, reports that US-based Migliaccio & Rathod LLP is currently investigating Bethesda's deceptive trade practices regarding Fallout 76 and the controversy that has shaped around refund demands. Spiel Times reported on Sunday, November 25th, that one of many Reddit users posted their experience with the Bethesda Support team and how they denied the refund request after promising to "begin processing the refund" as soon as they can. Many Fallout 76 players demanding refunds for the game were denied as they downloaded "digital content within the 30-day cancelation period", so they must "must agree to waive your cancelation rights." "Migliaccio & Rathod LLP is currently investigating Bethesda Game Studios for releasing a heavily-glitched game, Fallout 76, and refusing to issue refunds for PC purchasers of the game who found it to be unplayable because of its technical problems." The attorney firm is also open to speaking with players who demanded a refund for the online-survival RPG. "Gamers who have tried to receive a refund because of the game's myriad glitches have been unable to do so since they downloaded the game, leaving them to deal with an unplayable experience until patches bring it back to a playable state." Things are going awry for Bethesda. First, the horrendous review scores, then the massive drop in price, innumerable complaints and now, a legal battle. [GN] BLUE WP: Rios Lopez Sues Over Unpaid Minimum, Overtime Wages ------------------------------------------------------------ Jose Alberto Rios Lopez and Jesus Rios Lopez, on behalf of themselves and all others similarly situated, Plaintiffs, v. Blue WP, Inc. (d/b/a Graziella's Italian Bistro), WP Burger, Inc. (d/b/a Westchester Burger Company in White Plains, New York), WP Burger II, Inc. (d/b/a Westchester Burger Company in Rye Brook, New York), WP Burger III, Inc. (d/b/a Westchester Burger Company in Mount Kisco, New York), WP Burger V, Inc. (d/b/a Westchester Burger Company in Stamford, Connecticut), Grace DiFeo, Angelo DiFeo, Sandy DiFeo, and Vincent Corso, Defendants, Case No. 1:18-cv-01931-UNA (S.D. N.Y., December 5, 2018) was brought under the Fair Labor Standards Act and the New York Labor Law for Defendants' failure to pay all wages due including minimum wages, overtime compensation, unlawful retention of gratuities, uniform-related expenses, and spread-of-hours pay, and for violations of recordkeeping requirements. Plaintiffs, who worked an average of 66-70 hours per week, were regularly required to perform many jobs at Graziella's and the Westchester Burger Company locations ("WBC") but were improperly and unfairly compensated at less than the appropriate minimum wage, asserts the complaint. Defendants failed to compensate Plaintiffs and the similarly situated class and collective action members, who, upon information and belief, include non-tipped workers, overtime premiums for working over 40 hours per week. Defendants rarely scheduled or permitted rest or meal breaks, even though meals were deducted from the paychecks of Plaintiffs and the similarly situated class and collective action members, who, upon information and belief, include non-tipped workers. When business was slow, Defendants sent home Plaintiffs and the similarly situated class and collective action members who, upon information and belief, include non-tipped workers, without paying them tips for the day or wages earned for the hours they worked before being sent home, the complaint adds. Plaintiffs seek damages on their own behalf and on behalf of all others similarly situated, and injunctive relief to ensure that Defendants' pervasive pattern of unlawful conduct does not continue, notes the complaint. Jose Alberto Rios Lopez is an adult individual who resides in White Plains, New York. Plaintiff Jose was employed by Graziella's from 2006 until April 15, 2018. Jesus Rios Lopez is an adult individual who resides in White Plains, New York. Jesus was employed by Graziella's from approximately April 2007 until February 2018. Blue WP, Inc. is a domestic corporation organized under the laws of the State of New York. Blue WP, Inc. does business as Graziella's Italian Bistro. Graziella's is located at 99 Church Street, White Plains, New York 10601. WP Burger, Inc. is a domestic corporation organized under the laws of the State of New York. WP Burger, Inc. does business as Westchester Burger Company. The White Plains location of Westchester Burger Company is located at 106 Westchester Avenue, White Plains, New York 10601. WP Burger II, Inc. is a domestic corporation organized under the laws of the State of New York. WP Burger II, Inc. does business as Westchester Burger Company. The Rye Brook location of Westchester Burger Company is located at 275 South Ridge Street, Rye Brook, New York 10573. WP Burger III, Inc. is a domestic corporation organized under the laws of the State of New York. WP Burger III, Inc. does business as Westchester Burger Company. The Mt. Kisco location of Westchester Burger Company is located at 353 North Bedford Road, Mt. Kisco, New York 10549. WP Burger IV, Inc. is a domestic corporation organized under the laws of the State of New York. WP Burger IV, Inc. does business as Westchester Burger Company. The Stamford location of Westchester Burger Company is located at 1980 West Main Street, Stamford, Connecticut 06902. Graziella's and WBC are owned by the Defendant Family, and Defendants' operations are interrelated and unified. Graziella's and WBC shared common management and were centrally controlled by the same people -- Defendant Family.[BN] The Plaintiffs are represented by: Fran L. Rudich, Esq. Alexis H. Castillo, Esq. KLAFTER OLSEN & LESSER LLP Two International Drive, Suite 350 Rye Brook, NY 10573 Phone: (914) 934-9200 Fax: (914) 934-9220 Email: Fran@klafterolsen.com Alexis.Castillo@klafterolsen.com - and – Sarah Leberstein, Esq. MAKE THE ROAD NEW YORK 46 Waller Avenue White Plains, NY 10605 Phone: (914) 948-8466 Email: sarah.leberstein@maketheroadny.org BMW: Faces Class Action Over N63 Engine Oil Consumption Issues -------------------------------------------------------------- David A. Wood, writing for CarComplaints.com, reports that a BMW oil consumption class-action lawsuit alleges multiple models require excessive amounts of oil, sometimes using one quart every 750 miles. The 2009-2014 vehicles included in the class-action are equipped with V8 twin-turbocharged N63 engines: -- BMW 7 Series Sedan (Manufactured 3/2009 to 6/2012) -- BMW Active Hybrid 7 (Manufactured 4/2010 to 6/2012) -- BMW Gran Turismo (Manufactured 9/2009 to 6/2012) -- BMW 5 Series Sedan (Manufactured 3/2010 to 7/2013) -- BMW 6 Series Convertible (Manufactured 3/2011 to 7/2012) -- BMW 6 Series Coupe (Manufactured 7/2011 to 7/2012) -- BMW X5 (Manufactured 3/2010 to 6/2013) -- BMW X6 (Manufactured 7/2008 to 6/2014) -- BMW ActiveHybrid X6 (Manufactured 9/2009 to 9/2011) Plaintiff Jerry Moore purchased a used 2011 BMW 750i that allegedly consumed a quart of oil every 1,600 miles, well before the recommended oil change intervals. Moore notified a BMW dealer about the problem but was allegedly told there had been an oil leak that was now repaired. However, the plaintiff says the oil consumption problem only grew worse. In March 2015, a BMW dealer performed a "N63 Customer Care Package" and replaced the injectors and vacuum pump, but Moore says the vehicle continued to use too much oil. He says he was adding one quart of oil every 1,000 miles, so he again contacted the BMW dealership that told him the oil consumption was normal. The plaintiff claims he was told, "that's just how BMW's are -- you'll always need oil in between services." Moore says he constantly had to add oil to the vehicle to prevent the engine from damage, even though the frequency was well beyond the recommended oil change intervals. The N63 Customer Care Package (bulletin B001314) referenced by the plaintiff allegedly doesn't help to correct the oil consumption problems but works more to mask the problems. Technicians are told to check the timing chains, fuel injectors, mass air flow sensors, crankcase vent lines, batteries, engine vacuum pumps and low pressure fuel sensors, replacing the parts if needed. The work is done for free even if the vehicles are no longer covered under warranty. BMW also created the "N63 Customer Loyalty Offer" for discounts on new vehicles, and the "N63 Customer Appreciation Program" which gives customers $50 worth of BMW merchandise or accessories. According to the lawsuit, BMW owners blame the problems on the turbochargers placed between the cylinder heads and inside of the engine V, rather than outside of the V and therefore away from components. The class-action lawsuit alleges technical service bulletins (TSBs) issued by BMW to dealerships appear to conceal the oil consumption defects by telling dealers the issues are normal for turbocharged cars. TSB SIB-11-03-13 begins by telling technicians to ignore oil consumption complaints about engines with less than 6,000 miles because the engines are expected to use more oil. "[T]he internal engine components are not fully seated (break-in). Therefore, engine oil consumption complaints received prior to 6,000 miles cannot be considered." Then the bulletin says engines "equipped with a turbocharger(s) will consume more engine oil than normally aspirated engines (non-turbocharged). The additional engine oil consumption of a turbocharged engine, as compared to a normally aspirated engine, is normal and not a defect." The plaintiffs say the N63 engines would eat nearly 20 quarts of oil between the recommended 15,000-mile oil change intervals if the TSB information was true. Another BMW bulletin, SIB-11-01-13, allegedly changed the N63 oil consumption specifications and instructed technicians to add two quarts of oil to a vehicle when the original instructions called for one quart to be added. "While BMW did not address the underlying problem, it likely reduced the number of complaints because the engine oil level in the subject vehicles would now be overfilled, a condition that can cause the engine oil to become aeriated, resulting in potential oil starvation and reduced oil pressure." - Oil consumption lawsuit According to the class-action, BMW's own instructions prove there is nothing normal about vehicles consuming as much oil as they do. In addition, the plaintiffs claim they had no way of knowing about the oil consumption issues, but if they would have known they would not have purchased the vehicles. The BMW oil consumption class-action lawsuit was filed in the U.S. District Court for the Northern District of Georgia - Moore, et al., v. BMW of North America, LLC, et al. The plaintiffs are represented by Lemberg Law. [GN] BOEING COMPANY: Faces Ostroff Securities Suit Over 737 Crash ------------------------------------------------------------ JEFF OSTROFF, Individually and on Behalf of All Others Similarly Situated v. THE BOEING COMPANY, DENNIS A. MUILENBURG, and GREGORY D. SMITH, Case No. 1:18-cv-07853 (N.D. Ill., November 28, 2018), seeks to recover damages caused by the Defendants' alleged violations of the federal securities laws and to pursue remedies under the Securities Exchange Act of 1934. Throughout the Class Period, the Defendants made materially false and misleading statements and/or failed to disclose that: (i) the Company's new 737 MAX automated stall-prevention system was susceptible to deadly malfunctions; (ii) Boeing maintained inadequate internal controls to ensure the timely reporting and dissemination of such malfunctions; and (iii) as a result, the Company's public statements were materially false and misleading at all relevant times. On October 29, 2018, a Boeing 737 aircraft operated by the Indonesian airline Lion Air crashed shortly after takeoff, killing all passengers and crew. On November 12, 2018, post-market, The Wall Street Journal published an article entitled "Boeing Withheld Information on 737 Model, According to Safety Experts and Others." Citing "safety experts involved in the investigation, as well as midlevel [Federal Aviation Administration] officials," the article reported that Boeing "withheld information about potential hazards associated with a new flight-control feature suspected of playing a role in last month's fatal Lion Air jet crash." Following this news, Boeing's stock price fell, the Plaintiff relates. Boeing is a Delaware corporation. Boeing was founded in 1916 and is headquartered in Chicago, Illinois. Dennis A. Muilenburg has served at all relevant times as the Chief Executive Officer of Boeing. Gregory D. Smith has served at all relevant times as the Chief Financial Officer of Boeing. Boeing designs, develops, manufactures, sales, services, and supports commercial jetliners, military aircraft, satellites, missile defense, human space flight, and launch systems and services worldwide.[BN] The Plaintiff is represented by: Jeremy A. Lieberman, Esq. J. Alexander Hood, II, Esq. Jonathan D. Lindenfeld, Esq. POMERANTZ LLP 600 Third Avenue, 20th Floor New York, NY 10016 Telephone: (212) 661-1100 Facsimile: (212) 661-8665 E-mail: jalieberman@pomlaw.com ahood@pomlaw.com jlindenfeld@pomlaw.com - and - Patrick V. Dahlstrom, Esq. POMERANTZ LLP 10 South La Salle Street, Suite 3505 Chicago, IL 60603 Telephone: (312) 377-1181 Facsimile: (312) 377-1184 E-mail: pdahlstrom@pomlaw.com BOIRON INC: 9th Cir. Affirms Jury Verdict in Class Action --------------------------------------------------------- Lawrence I Weinstein, Esq. -- lweinstein@proskauer.com -- and Tiffany Woo, Esq. -- twoo@proskauer.com -- of Proskauer Rose LLP, in an article for The National Law Review, report that on November 8, 2018, the Ninth Circuit affirmed a jury verdict in a consumer class action deceptive advertising case in favor of Defendants Boiron Inc. and Boiron USA, Inc. (together, "Boiron"), the sellers of a homeopathic treatment for flu-like symptoms called Oscillococcinum ("Oscillo"). Although the Ninth Circuit's memorandum decision is marked "Not for Publication" and therefore is non-precedential under Ninth Circuit rules, the decision is still worth noting, as jury verdicts in class action false advertising cases are rare. According to the appellate briefs, Oscillo's active ingredient is a compound (extracted from the heart and liver of the Muscovy duck for those foodies in our readership) that is subjected to a homeopathic dilution process. The diluted compound is then sprayed onto specially-manufactured granules. Plaintiff argued that, due to the homeopathic dilution process, Oscillo was essentially "water sprayed on sugar," which could not provide the relief from flu-like symptoms that Boiron advertised. Plaintiff claimed that Boiron had therefore violated two California deceptive advertising statutes, the Unfair Competition Law ("UCL") and Consumers Legal Remedies Act ("CLRA"). At the conclusion of a one-week trial in the Central District of California, the jury found in Boiron's favor that its representations that Oscillo relieves flu-like symptoms were not false. On appeal, the Ninth Circuit affirmed, finding that the jury verdict did not constitute plain error because Boiron presented sufficient evidence from which the jury could have concluded that Oscillo actually works against flu-like symptoms. This was a "battle of the experts" for the jury, the court wrote, that could not be relitigated on appeal. And the jury appeared to have believed Boiron's expert, clinical studies, and anecdotal evidence more than it believed the plaintiff's expert, according to the court. The Ninth Circuit further noted that in explicitly finding that Boiron's claim that Oscillo treated flu-like symptoms was not false, the jury must have implicitly rejected Plaintiff's argument that Oscillo was merely a sugar pill or water sprayed on sugar. Nor did Plaintiff offer a theory of how Boiron's representations could be false if the product did indeed treat flu symptoms. The case is Christopher Lewert v. Boiron Inc., et al., No. 17-56607 in the Ninth Circuit. [GN] CAMPBELL SOUP: Faces 3 Class Suits in New Jersey ------------------------------------------------ Campbell Soup Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on December 6, 2018, for the quarterly period ended October 28, 2018, that the company has been named as defendant in three class actions suits in New Jersey. Three purported shareholder class action lawsuits (collectively, the Actions) have been filed in the United States District Court for the District of New Jersey against the company, Denise Morrison (the company's former Chief Executive Officer), and Anthony DiSilvestro (the company's Chief Financial Officer). The Actions, captioned Marisa Marder et al v. Campbell Soup Company et al., Civ. No. 1:18-cv-14385-NLH-JS, Michael Bankalter et al. v. Campbell Soup Company et al., Civ. No. 1:18-cv-15694-NLH-JS, and Charles W. Clayton et al. v. Campbell Soup Company et al., Civ. No. 1:18-cv-16476, were filed on September 28, 2018, November 5, 2018, and November 27, 2018, respectively. The complaints in the Marder and Bankalter actions allege that, in public statements between August 31, 2017, and May 18, 2018, the defendants made materially false and misleading statements and/or failed to disclose material information about the company's business, operations, prospects and/or compliance policies, specifically with regard to the Campbell Fresh segment. The complaint in the Clayton action asserts similar allegations regarding public statements made between February 17, 2017 and May 18, 2018. The plaintiffs seek unspecified monetary damages and other relief. Campbell Soup said, "We intend to vigorously defend against the Actions." Campbell Soup Company, together with its subsidiaries, manufactures and markets branded food and beverage products. It operates through three segments: Americas Simple Meals and Beverages, Global Biscuits and Snacks, and Campbell Fresh. CANADA: 60s Scoop Class Action, Information Sessions to Start ------------------------------------------------------------- The Sixties Scoop Class Action has been Settled. To be eligible, you must be a registered Indian, or, a person eligible to be registered, or, an Inuit person, who was adopted or made a permanent ward and was placed in the care of non-Indigenous foster or adoptive parents in Canada between January 1, 1951 and December 31, 1991, which resulted in the loss of cultural identity. Eligible class members will receive compensation between $25,000 and $50,000 depending on the overall number of eligible members. Collectiva, the Claims Administrator, along with its First Nations' partners, will be travelling across the country beginning in December 2018 to provide information to class members. They will hold 21 information sessions in 21 different cities across Canada where class members will receive support and guidance in preparing their claim forms and attend presentations on financial literacy provided by AFOA Canada. A qualified staff member from Collectiva along with other First Nations' professionals will be on hand to answer class members' questions. The list of the next information sessions and communities is as follows: December 17, 2018 Vancouver Vancouver Aboriginal Friendship Centre Theatre Room, 1607 East Hastings Street Vancouver (BC) V5L 1S7 December 18, 2018 Thunder Bay Victoria Inn Thunder Bay 555 West Arthur Street Thunder Bay (ON) P7E 5R5 December 21, 2018 Toronto Toronto Council Fire Native Cultural Centre 439 Dundas St East Toronto (ON) M5A 2B1 The full list of communities to be visited is available at: https://is.gd/9w5llL If you are a Sixties Scoop class member To make a claim for compensation, you must complete a claim form and send it to the Claims Administrator, Collectiva, no later than August 30, 2019. A copy of the claim form is available at https://is.gd/ct2TAE To receive more information or assistance you may: Visit the Settlement website: https://sixtiesscoopsettlement.info Call 1 844 287-4270 Send an e-mail request to sixtiesscoop@collectiva.ca. [GN] CANADA: Young Quebecers File Class Action Over Climate Change ------------------------------------------------------------- Montreal Gazette reports that young Quebecers have launched a class-action lawsuit against the Canadian government for failing to protect them from the devastating effects of climate change. ENvironnement JEUnesse filed the action on Nov. 26 in Quebec Superior Court on behalf of all Quebecers under the age of 35. The suit argues that even though the federal government recognizes the harm of global warming and is a signatory of the Paris Accord on fighting climate change, it is showing gross negligence by setting emissions reductions targets that are too low to begin with and is even failing to reach those insufficient goals. Inspired by similar legal actions in the Netherlands and the United States, the class action is a Canadian first. [GN] CANARY CONNECT: Reifman Sues Over Deceptive Business Practices -------------------------------------------------------------- Jonathan Berg, Julie Harley, Jeffrey Reifman, Arline Van Gessel, Connor Van Gessel, and Miguel Moreno, individually and on behalf of all others similarly situated, Plaintiffs, v. Canary Connect, Inc., Defendant, Case No. 1:18-cv-11365 (S.D. N.Y., December 5, 2018) is a consumer protection class action against Canary based on Canary's unfair and deceptive business practices with respect to the marketing and sale of its Canary All-in-One, Canary View, and Canary Flex products. The Products are home security systems, offering video and audio recordings which consumers may watch and control from Canary's software application on their cellular or Wi-Fi enabled devices Prior to October 3, 2017. Consumers who purchased the Products could access nearly all of the Products' key features via the Canary App with just one cost, the Products' purchase price. Canary advertised and marketed the Products with these features, leading consumers to reasonably believe that these features would remain with the Products at no additional charge. However, on or around October 3, 2017, Canary unilaterally changed the Products' characteristics, removing three key features and re-offering them to consumers under Canary's Membership Fee paywall of $9.99 per month. Consumers who purchased the Products prior to October 3, 2017 were not exempt from these changes. Specifically, Canary removed the ability to (1) view full-length videos of motion detected activities captured by the Products; (2) receive alerts of motion-detected activities when users are at home during the day-time with the Products disarmed; (3) changed video retention of intrusions from unlimited to 10 seconds and finally to 30 seconds; (4) removed the ability to download recordings; (5) have access to any videos for more than 24 hours; and (6) receive alerts of motion-detected activities when users are at home and asleep, based on their customized sleep schedule. These changes drastically altered the efficacy of the Products as a home security device. Additionally, Canary removed the ability to view clips more than a few days old and deleted previously stored content with no way to retrieve the lost content. Plaintiffs and other consumers purchased the Products reasonably believing that all key features included with their initial purchase would remain available without any future cost. Had Plaintiffs and other consumers known that Canary would remove the Product's features and place them behind a paywall, they would not have purchased the Products or would have paid significantly less for the Products. Therefore, Plaintiffs and consumers have suffered injury in fact as a result of Canary's unfair and deceptive practices, says the complaint. Plaintiff Jonathan Berg is a Pennsylvania citizen, residing in Allentown, Pennsylvania. Plaintiff Julie Harley is an Ohio citizen, residing in Toledo, Ohio. Plaintiff Jeffrey Reifman is a Washington citizen, residing in Seattle, Washington. Plaintiffs Arline and Connor Van Gessel are California and Illinois citizens, respectively. Plaintiff Arline Van Gessel resides in San Rafael, California. Plaintiff Connor Van Gessel resides in Chicago, Illinois. Plaintiff Miguel Moreno is an Illinois citizen, residing in Chicago, Illinois. Canary Connect, Inc. is incorporated in New York, with its principal place of business in New York, New York. Canary, directly and/or through its agents, manufactures, markets, distributes, and sells the Products in New York. Canary has maintained substantial distribution and sales in this District.[BN] The Plaintiffs are represented by: Nina Varindani, Esq. 685 Third Avenue, 26th Fl. New York, NY 10017 Phone: 212-983-9330 Fax: 212-983-9331 Email: nvarindani@faruqilaw.com - and – Timothy J. Peter, Esq. 1617 JFK Boulevard, Suite 1550 Philadelphia, PA 19103 Phone: (215) 277-5770 Fax: (215) 277-5771 Email: tpeter@faruqilaw.com - and – Bonner C. Walsh, Esq. WALSH PLLC 1561 Long Haul Road Grangeville, ID 83530 Phone: (541) 359-2827 Facsimile: (866) 503-8206 Email: bonner@walshpllc.com - and – Michael Fuller, Esq. OlsenDaines, P.C. US Bancorp Tower 111 SW 5th Ave., 31st Fl. Portland, OR 97204 Phone: 503-201-4570 Email: michael@underdoglawyer.com - and – Kelly Donovan Jones 819 SE Morrison St Ste 255 Portland, OR 97214 Phone: 503-847-4329 Email: kellydonovanjones@gmail.com CAPTIVA MVP: Eleventh Circuit Appeal Filed in I.T. Tsao's Suit -------------------------------------------------------------- Plaintiff I Tan Tsao filed an appeal from a court ruling in his lawsuit titled I Tan Tsao v. Captiva MVP Restaurant Partners, LLC, Case No. 8:18-cv-01606-WFJ-SPF, in the U.S. District Court for the Middle District of Florida. The appellate case is captioned as I Tan Tsao v. Captiva MVP Restaurant Partners, LLC, Case No. 18-14959, in the United States Court of Appeals for the Eleventh Circuit. As reported in the Class Action Reporter on Nov. 22, 2018, the District Court granted the Defendant's Motion to Dismiss Plaintiff's Class Action Complaint in the Plaintiff's data breach lawsuit against Captiva MVP Restaurant Partners, LLC, doing business as PDQ. The Plaintiff asserts that he purchased food at an affected PDQ on two different occasions using two different reward payment credit cards. The Plaintiff alleges that he contacted the bank, the cards were cancelled, thereby causing him to lose the opportunity to accrue rewards. Having to reset the new payment cards on autopay, the Plaintiff claims, is an additional hassle. The Defendant requests dismissal on two valid grounds: lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1); and failure to state a claim for relief under Rule 12(b)(6). The District Court opined that the Plaintiff's complaint fails to allege any facts showing he has suffered an injury in fact. He has not alleged an invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical. The threatened injury must be certainly impending to constitute injury in fact and allegations of possible future injury are not sufficient. The Plaintiff also alleges that his private data was compromised and exposed to criminals for future misuse. The District Court noted that not once does he allege that his credit cards were used in any way by a thief or that his identity was stolen. He alludes to the imminent risk of harm and impending injury that he will suffer from potential fraud and identity theft. The briefing schedule in the Appellate Case is set as follows: -- The appellant's brief is due on or before January 8, 2019; -- The appendix is due no later than seven days from the filing of the appellant's brief; -- Appellant's Certificate of Interested Persons due on or before December 13, 2018, as to Appellant I Tan Tsao; -- Appellee's Certificate of Interested Persons due on or before December 27, 2018, as to Appellee Captiva MVP Restaurant Partners, LLC.[BN] Plaintiff-Appellant I TAN TSAO, individually and on behalf of all others similarly situated, is represented by: Francis J. Flynn, Esq. THE LAW OFFICE OF FRANCIS J. FLYNN, JR. 6220 W 3rd, Suite 115 Los Angeles, CA 90036-3169 Telephone: (314) 662-2836 E-mail: francisflynn@gmail.com - and - James J. Rosemergy, Esq. CAREY, DANIS & LOWE 8235 Forsyth Blvd., Suite 1100 St Louis, MO 63105 Telephone: (314) 725-7700 E-mail: jrosemergy@careydanis.com - and - Steven William Teppler, Esq. ABBOTT LAW FIRM, PA 2929 Plummer Cove Rd. Jacksonville, FL 32223-6672 Telephone: (904) 292-1111 E-mail: steppler@abbottlawpa.com Defendant-Appellee CAPTIVA MVP RESTAURANT PARTNERS, LLC, a Florida Limited Liability Company doing business as PDQ, is represented by: Marie A. Borland, Esq. Robert A. Shimberg, Esq. HILL WARD HENDERSON, PA 101 E Kennedy Blvd., Suite 3700 PO Box 2231 Tampa, FL 33601-2231 Telephone: (813) 221-3900 E-mail: marie.borland@hwhlaw.com robert.shimberg@hwhlaw.com CHEMOURS CO: Area Leaders, Lawyers React to GenX Agreement ---------------------------------------------------------- Christina Haley O'Neal, writing for Wilmington Biz, reports that area leaders and lawyers representing a potential class-action lawsuit against The Chemours Co., recently reacted to the proposed consent order requiring the company to pay the largest fine ever levied by North Carolina environmental regulators. The agreement is a step in the right direction for addressing concerns that have been raised by Chemours' release of GenX compounds into the Cape Fear River, Wilmington Mayor Bill Saffo and New Hanover County Commissioner Rob Zapple said on Nov. 26 when asked about the news. Late on Nov. 21, the N.C. Department of Environmental Quality (NCDEQ) issued a news release that stated the Southern Environmental Law Center, on behalf of Cape Fear River Watch and NCDEQ, signed a proposed consent order with Chemours that requires the company to fix pollution in the Cape Fear River caused from per- and poly-fluoroalkyl substances. The order laid out several potential requirements for the company, including short- and long-term cleanup efforts, a 92 percent reduction of GenX emissions by the end of the year, funding of health studies for the PFAS and payment of a civil penalty of $12 million to the state, as well as $1 million for investigative costs. The suit, however, "really addresses issues happening around the plant," Mr. Zapple said on Nov. 26 of the order that is aimed to fix issues with Chemours' operations at the Fayetteville Works site in Bladen County. "We have issues here at our local plant that have been caused by emerging contaminants that have been put into our water from Fayetteville Works that this settlement does not really address," Mr. Zapple said. In addition, Mr. Zapple said he hopes that Chemours would also be held financially responsible for "whatever filtration system or process that is necessary to guarantee that we will have clean water now and in the future." Mr. Saffo had a similar opinion, saying that he hopes some of that $12 million in civil penalties would flow to Wilmington's water utility, Cape Fear Public Utility Authority, for funding the upgrades needed at its water treatment plant to filter GenX and other emerging contaminants still being studied. "I would like to know what they are going to do with the $12 million fine. I would like to see some of that money down here to help offset those costs for CFPUA to put that filtration in," Mr. Saffo said, adding that Chemours should be fronting the costs to take some of the burden off ratepayers. In a statement released on Nov. 26 afternoon, CFPUA officials said that the proposed agreement "fails to provide a solution for the citizens of New Hanover County who continue to be exposed to PFAS compounds . . ." In addition, officials also pointed out that the agreement does not address river sediment contaminants, or remediation solutions, as well as groundwater contamination in New Hanover County. The water utility also addressed its February resolution that requested the state agency to "stop all operations at the Chemours site involving emerging contaminants." "CFPUA believes this should happen until Chemours has installed technology at the site that will capture air emissions and until we fully understand how PFAS compounds find their way into our water source," officials said in the release. The utility is still pursuing its ongoing lawsuit against Chemours and Dupont, officials said, adding that ratepayers should not be responsible for the cost of additional treatment for PFAS compounds. CFPUA services about 200,000 customers in New Hanover County, according to the release. "The big concern moving forward is what other compounds and chemicals are out there we do not know about, where they are coming from or what they are," Mr. Saffo said. In addition, Mr. Saffo said he supports Gov. Roy Cooper's efforts for more support for the state environmental regulating agency. "Cape Fear River Watch has done a wonderful job in moving this forward, working on the legal side with Southern Environmental Law Center to finally getting some admission from Chemours," Zapple said on Nov. 26. "This is just the beginning, I think, of what I hope will be a number of actions taken . . . to hold Chemours responsible for cleaning up our water," Zapple added. The order is now in a 30-day comment period before it goes before Bladen County Superior Court for approval, according to NCDEQ's release. The proposed consent order, if accepted by the court, will resolve NCDEQ's pending lawsuit against Chemours for violating state water quality laws, according to the agency's release. In addition, Cape Fear River Watch agreed to dismiss its lawsuit against Chemours for violations of the Clean Water Act and Toxic Substances Control Act. A proposed class-action lawsuit, however, is still pending in federal court. One of the lead attorneys for the class action case, which has several named defendants including a Wilmington resident, issued a statement on Nov. 26 regarding the order. While the proposed agreement is a "good step forward" in addressing contamination issues in the state, there is still a large population of North Carolina residents who are not touched by the move, Ted Leopold -- tleopold@cohenmilstein.com -- partner at Cohen Milstein Sellers & Toll and co-lead counsel in the federal class-action case, said on Nov. 26. "The settlement that The Chemours Company reached with the state represents a small but encouraging step toward addressing its role in dumping harmful chemicals into the Cape Fear River and releasing them into the air and the harm that conduct has caused North Carolinians," Mr. Leopold said in a news release. "Because the relief in this tentative agreement is largely limited to just the tiny percentage of well-water properties, it leaves unaddressed the needs of hundreds of thousands of North Carolinians harmed by contaminated public drinking water, and all those harmed by Chemours' actions, and so we will continue the aggressive pursuit of our class action lawsuit to secure broader relief," he added. [GN] CHILDREN'S PLACE: Rael Class Action Remains Stayed -------------------------------------------------- The Children's Place, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on December 6, 2018, for the quarterly period ended November 3, 2018, that the purported class action suit entitled, Rael v. The Children's Place, Inc., is still stayed. The Company is a defendant in Rael v. The Children's Place, Inc., a purported class action, pending in the U.S. District Court, Southern District of California. In the initial complaint filed in February 2016, the plaintiff alleged that the Company falsely advertised discount prices in violation of California's Unfair Competition Law, False Advertising Law, and Consumer Legal Remedies Act. The plaintiff filed an amended complaint in April 2016, adding allegations of violations of other state consumer protection laws. In August 2016, the plaintiff filed a second amended complaint, adding an additional plaintiff and removing the other state law claims. The plaintiffs' second amended complaint seeks to represent a class of California purchasers and seeks, among other items, injunctive relief, damages, and attorneys' fees and costs. The Company engaged in mediation proceedings with the plaintiffs in December 2016 and April 2017. The parties reached an agreement in principle in April 2017, and signed a definitive settlement agreement in November 2017, to settle the matter on a class basis with all individuals in the U.S. who made a qualifying purchase at The Children's Place from February 11, 2012 through the date of preliminary approval by the court of the settlement. The settlement is subject to court approval and provides for merchandise vouchers for class members who submit valid claims, as well as payment of legal fees and expenses and claims administration expenses. The court has stayed the matter, pending an appellate court ruling in another lawsuit to which the Company is not a party. The Children's Place said, "The settlement, if ultimately approved by the court, will result in the dismissal of all claims through the date of the court's preliminary approval of the settlement. However, if the settlement is rejected by the court, the parties will likely return to litigation, and in such event, no assurance can be given as to the ultimate outcome of this matter. In connection with the proposed settlement, the Company recorded a reserve for $5.0 million in its consolidated financial statements in the first quarter of 2017." No further updates were provided in the Company's SEC report. The Children's Place, Inc. operates as a children's specialty apparel retailer. The company operates in two segments, The Children's Place U.S. and The Children’s Place International. The company was formerly known as The Children's Place Retail Stores, Inc. and changed its name to The Children's Place, Inc. in June 2014. The Children's Place, Inc. was founded in 1969 and is headquartered in Secaucus, New Jersey. CHRISTUS SANTA: Gomez Suit Alleges FLSA Violations -------------------------------------------------- Guadalupe Gomez, individually and on behalf of all others similarly situated v. Christus Santa Rosa Health Care Corporation dba Christus Santa Rosa Health System, et al., Case No. 5:18-cv-01197 (W.D. Tex., November 16, 2018), is brought against the Defendants for violations of the Fair Labor Standards Act. The Plaintiff alleges that during at least the last five years, Defendant has had a payroll policy of not compensating hourly-paid nurses for work performed during their meal periods, subjecting them to interruptions and requiring them to remain on duty during those meal periods. The Plaintiff Guadalupe Gomez is an individual residing in Bexar County, Texas. The Plaintiff was employed as a nurse by Defendant in San Antonio at The Children's Hospital of San Antonio in San Antonio, Texas from approximately August 2013 to April 2017. The Defendant Christus Santa Rosa Health Care Corporation is a domestic, non-profit corporation that operates four full-service hospitals with a combined total of over 600 licensed beds throughout its hospital system. Defendant's hospitals are located throughout San Antonio, Texas. [BN] The Plaintiff is represented by: Galvin B. Kennedy, Esq. KENNEDY HODGES, LLP 4409 Montrose Blvd., Ste. 200 Houston, TX 77006 Tel: (713) 523-0001 Fax: (713) 523-1116 E-mail: gkennedy@KennedyHodges.com CLIENT SERVICES: Violates FDCPA, Shapiro Suit Asserts ----------------------------------------------------- A class action lawsuit has been filed against Client Services, Inc. The case is styled as Larisa Shapiro, on behalf of herself and all others similarly situated, Plaintiff v. Client Services, Inc., Defendant, Case No. 1:18-cv-06857 (E.D. N.Y., December 3, 2018). The docket of the case states the nature of suit as Consumer Credit filed pursuant to Fair Debt Collection Practices Act. Client Services, Inc. operates as a customer relationship management company that offers a suite of accounts receivable management, business processing outsourcing (BPO), and healthcare solutions. It provides customer care, technical support, customer acquisition, cross sell/up-sell, customer retention, product/account activation, appointment setting/reminders, disaster support, first notice of loss, market research, customer satisfaction surveys, and multi-channel interaction management services.[BN] The Plaintiff is represented by: Daniel C Cohen, Esq. Cohen & Mizrahi LLP 300 Cadman Plaza West 12th Floor Brooklyn, NY 11201 Tel: (929) 575-4175 Fax: (929) 575-4195 Email: dan@cml.legal CLOUDERA INC: Named as Defendant in Plumley Class Action -------------------------------------------------------- Cloudera, Inc. said in its Form 10-Q report filed with the U.S. Securities and Exchange Commission on December 6, 2018, for the quarterly period ended October 31, 2018, that the company is facing a purported class action lawsuit entitled, Plumley v. Hortonworks, Inc., et al. On November 20, 2018, a purported class action complaint was filed in the United States District Court for the District of Delaware, entitled Plumley v. Hortonworks, Inc., et al., Case No. 1:18-cv-01845-UNA. The complaint names as defendants Hortonworks, the members of the Hortonworks board of directors and Cloudera, and purports to assert claims on behalf of Hortonworks stockholders under Sections 14(a) and 20(a) of the Securities Exchange Act of 1934. The complaint alleges that the registration statement on Form S-4 filed on November 5, 2018 contains material misstatements and omissions relating to the proposed merger between Hortonworks and Cloudera, the respective companies' financial projections, and the sale process leading up to the proposed merger. Cloudera is sued as an alleged "controlling person" of Hortonworks. The suit seeks, among other things, to enjoin defendants from proceeding with the proposed merger, as well as unspecified damages and attorneys' fees and costs. Cloudera, Inc. provides platform for machine learning and analytics in the United States, Europe, and Asia. The company operates through two segments, Subscription and Services. Cloudera, Inc. was founded in 2008 and is headquartered in Palo Alto, California. COMPASS GROUP: Faces Class Action Over Hidden Credit Card Fees -------------------------------------------------------------- Emily Jed, writing for Vending Times, reports that vending patron Anthony Oliver has filed a class action lawsuit against Canteen parent Compass Group USA Inc. for allegedly tacking on hidden credit card fees without giving customers the option to decline them before making a purchase. The suit claims that Compass Group's customers at vending machines located in Illinois and other parts of the country are only made aware of the credit card surcharge after they have swiped their credit card and the transaction is processed -- at which point it is too late to cancel the transaction. According to the complaint, Mr. Oliver purchased several beverages at Canteen vending machines located in Chicago, IL, last April, which, based on the price displayed on the machine should have cost $1.25 each. However, when he later checked his online bank statement, Oliver discovered that he was actually charged $1.35 for each drink product -- 10¢ more than the price that was displayed on the vending machine. "Nowhere on the machine, or at any point during the purchase process, did Defendant disclose that credit card users would be charged an additional surcharge or that Plaintiff would be charged $1.35 rather than $1.25," the complaint alleges. "Plaintiff and the other members of the class would not have purchased the products that they bought, or would have chosen a different payment method, had they known that The lawsuit seeks class certification and restitution to anyone who has purchased beverages from Compass Group vending machines in Illinois four years preceding the filing of the lawsuit and four years afterward. It also seeks to extend the class action to all U.S. states. The suit also seeks injunctive relief to stop Compass Group to require the company to put notifications on every vending machine specifying the surcharge. "While we don't comment on pending litigation, we are confident that our business practices are compliant with state and federal law," said Ann Sheridan, director, Canteen Communications. [GN] COOK COUNTY, IL: Bennett Moves for Certification of Inmates Class ----------------------------------------------------------------- The Plaintiff in the lawsuit entitled Preston Bennett, individually and for a class v. Thomas Dart, Sheriff of Cook County, and Cook County, Illinois, Case No. 1:18-cv-04268 (N.D. Ill.), moves the Court to order that this case may proceed as a class action under Rule 23(b)(3) of the Federal Rules of Civil Procedure for: All inmates housed in Division 10 at the Cook County Department of Corrections from June 27, 2016 to the date of entry of judgment, who were prescribed either a walker, crutch, or cane by the medical staff and were denied an accommodation for toileting and showering. Mr. Bennett alleges the Sheriff and County violated his rights under the Americans with Disabilities Act and Rehabilitation Act by assigning him to Division 10 without elements that satisfy the ADA Structural Standards and by failing to provide reasonable accommodations to overcome the structural noncompliance.[CC] The Plaintiff is represented by: Patrick W. Morrissey, Esq. Thomas G. Morrissey, Esq. THOMAS G. MORRISSEY, LTD. 10150 S. Western Ave. Chicago, IL 60643 Telephone: (773) 233-7900 E-mail: patrickmorrissey1920@gmail.com CYAN INC: Shearman & Sterling Discusses Class Action Ruling ----------------------------------------------------------- Shearman & Sterling LLP, in an article for JDSupra, reports that on September 5, 2018, Judge Marie Weiner of California Superior Court, San Mateo County, granted defendants' motion to stay a putative class action on grounds of forum non conveniens in order for plaintiff to pursue the action in New York. Plaintiff asserted claims under Sections 11, 12(a)(2), and 15 of the Securities Act of 1933 (the "Securities Act") against an early childhood education service provider in the People's Republic of China (the "Company"), several of its officers and directors, and the underwriters based on the Company's initial public offering of American Depository Shares ("ADSs"). Relying largely on a mandatory forum selection clause contained in a deposit agreement that set the terms for the deposit of the non-U.S. securities so that they could be traded on the New York Stock Exchange as ADS, the Court held New York was a more convenient forum and stayed the action in California. The Court initially noted that where, as here, there is a mandatory forum selection clause, "the test" for determining whether the plaintiff's chosen forum is convenient "is simply whether application of the clause is unfair or unreasonable, and the clause is usually given effect." In this case, plaintiff's claims arose out of their ADS holdings. An ADS is a security that represents a share of a non-U.S. company that has been deposited with a U.S. bank. The terms of the ADS are governed by a deposit agreement, typically among the company and a deposit bank. Here, the Deposit Agreement between the Company and its deposit bank contained a mandatory forum selection clause (referenced in the Registration Statement for the IPO): "[b]y holding an ADS or an interest therein, you irrevocably agree that any legal suit, action or proceeding against or involving . . . ADSs or ADRs, may only be instituted in a state or federal court in the City of New York, and you irrevocably submit to the exclusive jurisdiction of such courts with respect to any such suit, action or proceeding." The Court held it would honor this forum selection clause so long as the clause was neither unfair nor unreasonable, noting that "[m]ere inconvenience or additional expense" did not render a forum selection clause unreasonable. In this particular action, plaintiff had first filed the action in New York federal court and later voluntarily dismissed it. In light of that procedural history, the Court found plaintiff could not argue reasonably that the forum selection clause was unfair or unreasonable. Plaintiff also argued that the case should not be dismissed in favor of New York because the other defendants were not parties to the Deposit Agreement. The Court accordingly also considered other aspects of the forum non conveniens analysis, including the private interests of the litigants and the interests of the public in maintaining the action in California. The Court found that the balance of interests favored New York because some of the underwriters' headquarters and the majority of their employees who worked on the IPO were located there. Meanwhile, the registration statement signatories were Chinese and/or Hong Kong residents. Indeed, the only witness and documents located in California were plaintiff's. The Court thus held it was clear that more of the evidence would be located in New York, and that it would be substantially less burdensome to litigate the case in New York. The Court stayed the California action, subject to application to lift the stay if the claims are not able to be adjudicated against all defendants in New York. In the wake of the Supreme Court's decision in Cyan, Inc. v. Beaver County Employees Retirement Fund, 583 U.S. __ (2018), that Securities Act class actions can be brought in state court, companies have considered various responses, including adopting provisions in their articles of incorporation or bylaws requiring securities lawsuits to be brought in a particular forum. Although this decision rested on a forum selection clause contained in a deposit agreement, it suggests these or similar efforts to limit the impact of the holding in Cyan ultimately might prove successful. [GN] DARTMOUTH COLLEGE: Denies Campus Sexual Misconduct Charges ---------------------------------------------------------- Kirk Carapezza, writing for WGBH, reports that from her very first day as a graduate student at Dartmouth, Sasha Brietzke thought that things were "strange" in the school's psychology department. The 26-year-old recalled how the first question one of her mentors asked was if she had a boyfriend. "I encountered a lot of demeaning and sexualizing comments, gendered harassment, throughout my first year," Ms. Brietzke said. In March 2017, Ms. Brietzke attended an academic conference in Los Angeles. One night, a group of students and researchers went to a karaoke bar, where, she says, one of her professors showed up drunk. "He sat down and summoned me over to talk to him," she said. "I went over, and he groped me and put me in his lap in front of a roomful of people who I'd just met and who were instrumental for my career, so I felt extremely humiliated and angry." In November, Ms. Brietzke and six other women filed a federal class action lawsuit in New Hampshire claiming three former tenured psychology professors groped and harassed them. One of the professors is accused of raping two students. They charged that Dartmouth administrators knew for years about the department's "Animal House" culture, but ignored several sexual misconduct complaints for more than a decade. Dartmouth has denied the charges and, in a statement, strongly disagreed with the characterization of its response to the allegations. All three professors have either retired or resigned. The lawsuit comes as the Trump administration has proposed new regulations on how colleges handle sexual misconduct claims. Education Secretary Betsy DeVos has said the draft rules, released Nov. 6, enhance fairness by adding protections for the accused. Advocates for survivors have condemned the move as a step backwards because they narrow the definition of sexual harassment and require colleges like Dartmouth to act only if the alleged misconduct appears to be severe and also pervasive. "What she's proposing is extremely dangerous and is going to present huge new risk to women on campus, because now campuses are going to be given this free reign to do nothing," said Wendy Murphy, a professor at New England Law-Boston who has also represented survivors of sexual assault in court. While the proposed changes would affect how colleges handle sexual assault cases, Murphy said she doesn't think they will have any impact on the outcome of the Dartmouth case. "You can't sue in court and win unless you show that the behavior was severe and pervasive and interfered with your access to education," Ms. Murphy said. If finalized, the new rules would prohibit the use of a single investigator to resolve sexual misconduct complaints. Instead, colleges would be required to hold adversarial hearings. Janet Halley, a Harvard Law School professor, has pushed for the Education Department to revise Obama-era guidelines on how colleges are to respond to sexual harassment and assault. In 2017, she and other Harvard law professors urged the department to rescind a letter that contained the guidelines. "Students would be forced to be interviewed or show up to hearings with no notice of what the charges against them were," said Ms. Halley, who welcomes the proposed changes that give greater protections to the accused. "The fact that the Trump administration is proposing fairness is one of the great paradoxes of our time," Ms. Halley said. "But fairness is fairness. Notice, opportunity to be heard, the use of a hearing so that both parties can hear the evidence in real-time from each other and from the witnesses. These are traditional advocacy points of the ACLU, of the left, of progressives." Still, Ms. Halley called the proposed redefinition of sexual harassment too narrow. "It requires that the unwelcome conduct be severe and pervasive and objectively offensive," she said. "The vast majority of Supreme Court cases don't use that formula. They say severe or pervasive." Ms. Brietzke said her harassment at Dartmouth was so pervasive that she felt overwhelmed and didn't file a formal complaint until nearly 30 other students reported sexual misconduct. "It shouldn't take 27 people to have to come forward for some sort of meaningful action to take place," Ms. Brietzke said. "The system isn't set up for individual complaints to be taken seriously." Ms. Brietzke, who worked in a research lab, said science is in trouble if colleges don't deal better with sexual harassment and assault. "Women face so many kinds of headwinds in the STEM professions and they're being driven out at a systematic level from the field," she said. At stake, Ms. Brietzke and her six co-plaintiffs argue, is scientific discovery. [GN] DELL TECHNOLOGIES: City of Pontiac Employee's Class Suit Ongoing ---------------------------------------------------------------- Dell Technologies Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on December 10, 2018, for the quarterly period ended November 2, 2018, that the company continues to defend a securities class action suit entitled, City of Pontiac Employee Retirement System vs. Dell Inc. et. al. On May 22, 2014, a securities class action seeking compensatory damages was filed in the United States District Court for the Southern District of New York, captioned the City of Pontiac Employee Retirement System vs. Dell Inc. et. al. (Case No. 1:14-cv-03644). The action names as defendants Dell Inc. and certain current and former executive officers, and alleges that Dell made false and misleading statements about Dell's business operations and products between February 22, 2012 and May 22, 2012, which resulted in artificially inflated stock prices. The case was transferred to the United States District Court for the Western District of Texas, where the defendants filed a motion to dismiss. On September 16, 2016, the Court denied the motion to dismiss and the case is proceeding with discovery. Dell Technologies said, "The defendants believe the claims asserted are without merit and the risk of material loss is remote." No further updates were provided in the Company's SEC report. Dell Technologies Inc. designs, develops, manufactures, markets, sells, and supports information technology (IT) products and services worldwide. It operates through three segments: Client Solutions Group (CSG), Infrastructure Solutions Group (ISG), and VMware. The company was formerly known as Denali Holding Inc. and changed its name to Dell Technologies Inc. in August 2016. Dell Technologies Inc. was founded in 1984 and is headquartered in Round Rock, Texas. DELL TECHNOLOGIES: Hallandale Beach Retirement Plan Sues D&Os ------------------------------------------------------------- Dell Technologies Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on December 10, 2018, for the quarterly period ended November 2, 2018, that the company's directors have been named as defendants in a class action lawsuit entitled, Hallandale Beach Police and Fire Retirement Plan v. Michael Dell, et al. On November 8, 2018, Hallandale Beach Police and Fire Retirement Plan filed a putative stockholder class action lawsuit against the company's directors and Michael S. Dell, a separate property trust for the benefit of Mr. Dell's wife, investment funds affiliated with Silver Lake Partners, and investment funds affiliated with MSD Partners, L.P. in Delaware Chancery Court, alleging, among other things, that the directors of the Company breached their fiduciary duties to holders of the Class V Common Stock in connection with the Class V transaction, because, among other things, the Class V transaction is allegedly financially unfair and coercive to holders of the Class V Common Stock and there were various conflicts of interest (Hallandale Beach Police and Fire Retirement Plan v. Michael Dell, et al., No. 2018-0816-JTL (Del. Ch. filed November 8, 2018)). The lawsuit seeks, among other things, a judicial declaration that that defendants breached their fiduciary duties and an award of damages, fees and costs. Dell Technologies Inc. designs, develops, manufactures, markets, sells, and supports information technology (IT) products and services worldwide. It operates through three segments: Client Solutions Group (CSG), Infrastructure Solutions Group (ISG), and VMware. The company was formerly known as Denali Holding Inc. and changed its name to Dell Technologies Inc. in August 2016. Dell Technologies Inc. was founded in 1984 and is headquartered in Round Rock, Texas. DISCOVER FINANCIAL: Arbitration Ruling in Collins Suit Affirmed --------------------------------------------------------------- Judge Paula Xinis of the U.S. District Court for the District of Maryland denied the Plaintiffs' motion to alter the Court's judgment compelling arbitration in the case, ASANTI T. COLLINS, et al., Plaintiffs, v. DISCOVER FINANCIAL SERVICES, et al., Defendants, Civil Action No. PX-17-03011 (D. Md.). Plaintiffs Collins and Bradley Clayton both have Discover Card accounts. They initially filed the suit as a class action complaint in Montgomery County Circuit Court, alleging that various practices of and among the Defendants when seeking to collect on delinquent accounts are illegal under Maryland and federal consumer protection laws, and that the Defendants violated certain other applicable Maryland regulations. The Plaintiffs seek declaratory and injunctive relief (Counts I and II) and bring claims under various federal and state consumer protection and licensing statutes (Counts III-IX), for unjust enrichment (Count X), and for other ancillary relief (Count XI). The Defendants removed the action to the Court based on federal question jurisdiction. The Defendants then moved to compel individual arbitration as provided in the Plaintiffs' cardmember agreements. In pertinent part, the agreements include arbitration provisions that permit either party to the agreement to elect to resolve any dispute arising from the use of the Plaintiffs' Discover accounts through binding arbitration. The agreements also include a class action waiver, a mechanism for either party to reject proceeding by arbitration, a provision making clear that the Federal Arbitration Act ("FAA") applies to any applicable arbitration proceedings and that arbitration will proceed with the American Arbitration Association ("AAA") or JAMS, in accordance with each institution's respective rules. The Plaintiffs opposed arbitration, arguing that the Court should apply Maryland law rather than the FAA and find that the Defendants waived the right to arbitrate by previously initiating collection actions against the Plaintiffs in Maryland courts. The Court was left to decide whether the cardmember agreements that the Plaintiffs signed, which expressly provided for arbitration in lieu of litigation, required the Plaintiffs to submit to individual arbitration under the FAA. The Court analyzed the case under the FAA, found that the cardmember agreements compelled individual arbitration and ordered Plaintiffs to engage in arbitration in accordance with the arbitration clauses in their agreements. It declined to dismiss the complaint, ordering instead that the case be stayed pending arbitration. The Plaintiffs thereafter timely moved for reconsideration, arguing that the Court should have first determined whether the claims raised by the Plaintiffs were within the scope of the arbitration agreement. Judge Xinis finds that where the agreements explicitly incorporate JAMS or AAA rules, such provisions constitute clear and unmistakable evidence of intent to arbitrate arbitrability. Collins and Clayton agreed to just that. The Plaintiffs' only retort to the plain language of their arbitration provisions is that the clauses do not reflect an intention to arbitrate arbitrability because their cardmember agreements were not commercial contracts between sophisticated parties. The Judge is not persuaded. As a general principle, parties to a contract are to be bound by its plain terms. The cardmember agreements include AAA and JAMS rules which clearly state that issues of arbitrability to be determined by the arbitrator. The Plaintiffs give no sound basis for the Court to find that certain of the provisions in the cardmember agreements are sufficiently plain to bind them, yet others are not. Accordingly, the Judge concludes that the Plaintiffs have provided the Court no reason to find otherwise. This determination is consistent with courts reaching similar questions involving "unsophisticated" parties. Finally, the Judge defers the question of scope to the arbitrator, and expresses no opinion as to whether the claims brought by the Plaintiffs have a "significant relationship" to the cardmember agreements. For these reasons, Judge Xinis denied the Plaintiffs' motion for reconsideration. A full-text copy of the Court's Dec. 7, 2018 Memorandum Opinion is available at https://is.gd/a6JuyB from Leagle.com. Asanti T. Collins, Individually on Behalf of Themselves and all Others Similarly Situated & Bradley Clayton, Individually on Behalf of Themselves and all Others Similarly Situated, Plaintiffs, represented by Douglas Neil Gottron -- dgottron@morrispalerm.com -- Morris Palerm LLC & Terry Morris -- tmorris@morrispalerm.com -- Morris Palerm LLC. Discover Financial Services, Discover Bank, Discovery Products, Inc., Individually and as Successor by Merger Together with DB Servicing Corporation & U.S. Bank National Association, As Trustee for the Discover Card Master Trust I, Defendants, represented by Jessica Hepburn Sadler -- sadlerjh@ballardspahr.com -- Ballard Spahr LLP, John Darren Sadler -- sadlerj@ballardspahr.com -- Ballard Spahr LLP & Daniel McKenna, Ballard Spahr LLP, pro hac vice. DIVERSIFIED I: Puerta Sues Over Unpaid Overtime Compensation ------------------------------------------------------------ MARIA PUERTA, on her own behalf and on behalf of those similarly situated, Plaintiff, v. DIVERSIFIED I, INC., a Florida Profit Corporation, and LAILA SABRY, individually Defendant, Case No. 6:18-cv-02091 (M.D. Fla., December 5, 2018) is an action against the Defendant for unpaid overtime compensation, under the Fair Labor Standards Act. Plaintiff was a "driver" and performed related activities for Defendant in Orlando, Florida (Orange County). Plaintiff worked for Defendant from approximately September 2017 to present. During Plaintiff's employment, Plaintiff worked in excess of 40 per work week during one or more work weeks. Specifically, Plaintiff would work over 70 hours per week. However, Plaintiff was not paid overtime compensation of one and a half times her regular rate of pay per hour for overtime hours worked, notes the complaint. Plaintiff was paid per vehicle delivered and not based on the number of hours she worked. As a result, Plaintiff should have received compensation at time and one half her calculated regular rate of pay for all hours worked beyond the 40 hours per week. Defendant's failure and/or refusal to properly compensate Plaintiff at the rates and amounts required by the FLSA were willful, the complaint asserts. Plaintiff, MARIA PUERTA, was an employee of the Defendant within the last 3 years for Defendant in Orlando, Florida (Orange County). DIVERSIFIED, is a private company which provides vehicle transportation services throughout Florida. SABRY is the acting manager and registered agent of Defendant DIVERSIFIED.[BN] The Plaintiff is represented by: Carlos V. Leach, Esq. The Leach Firm, P.A. 1950 Lee Rd., Suite 213 Winter Park, FL 32789 Phone: (407) 574-4999 Facsimile: (833) 423-5864 Email: cleach@theleachfirm.com DOLLAR GENERAL: Faces Gomez Class Suit in Penn. ------------------------------------------------ A class action lawsuit has been filed against Dollar General Corporation doing business as: Dollar General. The case is styled as Fernando Gomez, on behalf of himself and all others similarly situated, Plaintiff v. Dollar General Corporation doing business as: Dollar General and Dolgencorp, LLC doing business as: Dollar General, Defendant, Case No. 2:18-cv-01624-PJP (W.D. Penn., December 5, 2018). The lawsuit arises under the Americans with Disabilities Act. Dollar General Corporation is an American chain of variety stores headquartered in Goodlettsville, Tennessee. As of July 2018, Dollar General operates 15,000 stores in 45 of the 48 contiguous United States.[BN] The Plaintiff is represented by: R. Bruce Carlson, Esq. Carlson Lynch Sweet Kilpela & Carpenter, LLP 1133 Penn Avenue 5th Floor Pittsburgh, PA 15222 Tel: (412) 322-9243 Email: bcarlson@carlsonlynch.com EDISON INTERNATIONAL: Barnes Files Suit Over False Company Reports ------------------------------------------------------------------ Glen Barnes, individually and on behalf of all others similarly situated v. Edison International, Southern California Edison Company, et al., Case No. 2:18-cv-09690 (C.D. Calif., November 16, 2018), is brought against the Defendants for violations of the Securities Exchange Act of 1934. This is a federal securities class action on behalf of all persons and entities who purchased or otherwise acquired Edison securities between February 23, 2016, and November 12, 2018, both dates inclusive (the "Class Period"), seeking to recover damages caused by Defendants' violations of the federal securities laws and to pursue remedies under the Securities Exchange Act of 1934, against the Company and certain of its top officials. The Plaintiff alleged that throughout the Class Period, Defendants made materially false and misleading statements regarding the Company's business, operational and compliance policies. The Plaintiff acquired Edison Securities during the Class Period. Edison International supplies electricity primarily to residential, commercial, industrial, agricultural, and other customers, as well as public authorities through transmission and distribution networks. Its transmission facilities consist of lines ranging from 33 kV to 500 kV and substations; and distribution system comprises approximately 53,000 line miles of overhead lines, 38,000 line miles of underground lines, and 800 substations located in California. The Company serves approximately 5 million customers. The Defendant Edison International is a California corporation with its principal executive offices located at 2244 Walnut Grove Avenue (P.O. Box 976), Rosemead, California 91770. Edison International's common stock trades in an efficient market on the New York Stock Exchange under the ticker symbol "EIX." The Individual Defendants are top officers of Edison International. [BN] The Plaintiff is represented by: Jennifer Pafiti, Esq. POMERANTZ LLP 468 North Camden Drive Beverly Hills, CA 90210 Tel: (818) 532-6499 E-mail: jpafiti@pomlaw.com ELITE HOTELS: Honeywell Files Suit Under ADA in S.D. Florida ------------------------------------------------------------ A class action lawsuit has been filed against Elite Hotels, LLC. The case is styled as Cheri Honeywell, individually and on behalf of all others similarly situated, Plaintiff v. Elite Hotels, LLC a Florida limited liability company, Defendant, Case No. 0:18-cv-62930-RLR (S.D. Fla., December 3, 2018). The lawsuit arises under the Americans with Disabilities Act. Elite Hospitality LLC was founded in 2008. The company's line of business includes operating public hotels and motels.[BN] The Plaintiff is represented by: Jessica Lynn Kerr, Esq. Jessica L.Kerr, P.A. dba The Advocacy Group 200 S.E. 6th Street, Suite 504 Fort Lauderdale, FL 33301 Tel: (954) 282-1858 Fax: (844) 786-3694 Email: service@advocacypa.com EMAN CORP: Inga Suit to Recover Unpaid Overtime ----------------------------------------------- Justo Enrique Inga, on behalf of himself and others similarly situated, Plaintiff, v. Eman Corp., Mohammed El-Sloufi and Aiman Goda, Defendants, Case No. 18-cv-11039 (S.D. N.Y., November 27, 2018), seeks to recover unpaid overtime compensation, liquidated damages, prejudgment and post-judgment interest and attorneys' fees and costs pursuant to the Fair Labor Standards Act and unpaid "spread of hours" premium pursuant to New York Labor Law and the New York State Wage Theft Prevention Act. In or about 2009, Defendants hired Plaintiff to work as a non-exempt cook and porter at their restaurant, Big Arc Chicken. He claims to have worked in excess of 40 hours per week without being paid overtime wages. [BN] Plaintiff is represented by: Justin Cilenti, Esq. Peter H. Cooper, Esq. CILENTI & COOPER, PLLC 708 Third Avenue, 6th Floor New York, NY 10017 Tel. (212) 209-3933 Fax. (212) 209-7102 Email: info@jcpclaw.com EXPEDITORS INC: Protective Order on Class Notice in Lewis Entered ----------------------------------------------------------------- In the case, KIANI LEWIS, on behalf of herself and all others similarly situated and aggrieved, Plaintiff, v. EXPEDITORS, INC., EXPEDITORS INTERNATIONAL, EXPEDITORS INTERNATIONAL OF WASHINGTON, INC., Defendants, Case No. 2:18-cv-02871-VAP-(PJWx) (C.D. Cal.), Judge Aptrick J. Walsh of the U.S. District Court for the Central District of California, Western Division, has issued an amended stipulated protective order regarding notice to the putative class. The Plaintiff filed a class-action complaint in the Superior Court of California, County of Los Angeles on Feb. 26, 2018. The Defendant filed a Notice of Removal of Civil Action on April 6, 2018, in the U.S. District Court, Central District of California. The Plaintiff filed a First Amended Complaint ("FAC") on May 4, 2018, and the Defendants answered on May 18, 2018. The Parties agree that to ensure that third-parties' private contact information is adequately protected, the Parties choose to follow the notice process sanctioned by Central District of California in York v. Starbucks Corp., 2009 U.S. Dist. LEXIS 92274, *4-5, 2009 WL 3177605 (C.D. Cal. June 30, 2009). Therefore, they stipulated that the protections of the Stipulation and Order are in addition to the general protections the Parties agreed to under the Parties' Stipulated Protective Order, entered by the Court on Oct. 17, 2018. The contact information for the putative class is protected by the employees' right to privacy, and it will be designated as "confidential" as defined by Paragraphs 4a. of the Parties' Protective Order before being produced to the Plaintiff's Counsel. At the outset of the Plaintiff's Counsel's (or their designees') first contact with each current or former employee, the Plaintiff's Counsel (or their designee) will inform each contacted individual that (a) the individual has the right not to talk with the Plaintiff's Counsel (or their designee) and (b) that, if he or she elects not to talk to the Counsel (or their designee), the Counsel (or their designee) will terminate the contact and not contact them again. They further stipulated that the Plaintiff's Counsel (or their designee) will also inform each individual that his or her refusal to speak with counsel will not prejudice his or her rights as a putative class member should the Court certifies the class. The Plaintiff's Counsel (or their designee) will keep a list of all individuals contacted and all individuals who make it known that they do not want to be contacted and preserve that list for the Court. The contact information will be used only for the purposes of the action, and it will not be disseminated to anyone who is not necessary to the prosecution of the case. A Party who seeks to file under seal any contact information for the putative class will comply with Local Rule 79-5. Said contact information may only be filed under seal pursuant to a court order authorizing the sealing of the specific contact information at issue. If a Party's request to file said contact information is denied by the Court, then the Party may file the contact information in the public record unless otherwise instructed by the Court. Upon review of the Parties' Stipulated Protective Order Regarding Notice to the Putative Class and upon a finding of good cause, Judge Walsh ordered that the foregoing Stipulated Protective Order Regarding Notice to the Putative Class is approved and the Parties are ordered to act in compliance therewith. A full-text copy of the Court's Dec. 7, 2018 Order is available at https://is.gd/UJDwrI from Leagle.com. Kiani Lewis, on behalf of herself and all others similarly situated and aggrieved, Plaintiff, represented by Carney R. Shegerian -- cshegerian@shegerianlaw.com -- Shegerian and Associates Inc, Anthony Nguyen -- anguyen@shegerianlaw.com -- Shegerian and Associates Inc & Cheryl Ann Kenner, Shegerian and Associates Inc. Expeditors, Inc., Defendant, represented by Helene J. Wasserman -- hwasserman@littler.com -- Littler Mendelson PC, Allan G. King, Littler Mendelson PC, pro hac vice & Miranda Alona Mossavar -- mmossavar@littler.com -- Littler Mendelson PC. Expeditors International, Defendant, represented by Helene J. Wasserman , Littler Mendelson PC, Allan G. King, Littler Mendelson PC, pro hac vice, Britney Noelle Torres -- btorres@littler.com -- Littler Mendelson PC & Miranda Alona Mossavar, Littler Mendelson PC. Expeditors International of Washington, Inc., Erroneously Sued As Expeditors, Inc. Erroneously Sued As Expeditors International, Defendant, represented by Allan G. King, Littler Mendelson PC, pro hac vice, Britney Noelle Torres, Littler Mendelson PC, Helene J. Wasserman, Littler Mendelson PC, Miranda Alona Mossavar, Littler Mendelson PC & Tara L. Presnell -- tpresnell@littler.com -- Littler Mendelson PC. EXPRESS MESSENGER: Arbitration Ruling in Ege Labor Suit Affirmed ---------------------------------------------------------------- In the case, ABDIRIZAQ EGE, individually, and on behalf of other members of the general public similarly situated; et al., Plaintiffs-Appellants, v. EXPRESS MESSENGER SYSTEMS INC., DBA OnTrac, a Delaware corporation and DOES 1 THROUGH 100, inclusive, Defendants-Appellees, Case No. 17-35123 (9th Cir.), the U.S. Court of Appeals for the Ninth Circuit affirmed the district court's dismissal of the Appellants' complaint in favor of arbitration. On July 29, 2015, Appellant Ege filed a class action complaint against Express Messenger, a transportation broker. Ege asserted state law claims for failure to pay overtime and minimum wages, failure to provide rest and meal breaks, failure to timely pay wages upon termination and willful refusal to pay wages on behalf of a proposed class of current and former delivery drivers who worked for OnTrac in Washington from July 29, 2012 to present. The complaint alleged that OnTrac intentionally misclassified Appellant Ege and the putative class members as contractors rather than employees, and failed to provide benefits such as overtime, meal and rest breaks to which certain employees are entitled under state law. On July 8, 2016, Ege filed an Amended Complaint adding Farah and Hassan as additional Plaintiffs. OnTrac removed the matter to federal court on July 28, 2016. On Aug. 4, 2016, OnTrac filed a Motion to Dismiss or in the Alternative to Stay Proceedings and Compel Arbitration. OnTrac asserted that the Appellants were required to submit their claims to arbitration pursuant to the Federal Arbitration Act, because OnTrac was a third-party beneficiary to the Owner/Operator agreements between appellants and SCI, a third party administrator, and the agreements contained arbitration provisions. On Jan. 10, 2017, the district court granted OnTrac's Motion to Dismiss. It concluded that OnTrac was a third-party beneficiary to the Owner/Operator agreements, the Appellants' claims were arbitrable and arbitration was the proper forum in which to adjudicate the claims. The Appellants did not challenge the validity of the Owner/Operator agreements in the district court. The Appellate Court concludes that the Appellants' performance under the agreements necessarily and directly benefitted OnTrac, and therefore OnTrac was a third-party beneficiary. As the district court noted, the Appellants' work under the agreement -- delivering parcels -- was an integral part of OnTrac's business, and the agreements obligated appellants to indemnify logistics company customers, grant customers the right to subrogate claims and notify customers within four hours of any accidents. The Appellants argue for the first time on appeal that the Owner/Operator agreements contain multiple substantively unconscionable provisions. The Appellate Court does not consider the unconscionability arguments because they were not raised in the district court. It concludes that the district court properly dismissed the Appellants' complaint in favor of arbitration. Accordingly, the district court's dismissal of their complaint in favor of arbitration is affirmed. The Appellants' Motion to Stay Appeal pending the Supreme Court's decision in New Prime, Inc. v. Oliveira, No. 17-340, is denied. A full-text copy of the Court's Dec. 7, 2018 Memorandum is available at https://is.gd/BHY7Dw from Leagle.com. FASHION INSTITUTE: Sullivan Files ADA Class Action in Texas ----------------------------------------------------------- A class action lawsuit has been filed against Fashion Institute of Design & Merchandising. The case is styled as Phillip Sullivan, Jr., on behalf of himself and all others similarly situated, Plaintiff v. Fashion Institute of Design & Merchandising, Defendant, Case No. 1:18-cv-11248 (S.D. N.Y., December 3, 2018). The lawsuit arises under the Americans with Disabilities Act. The Fashion Institute of Design & Merchandising is a for-profit college in California. It offers courses in fashion, entertainment, beauty, interior design, and graphic design. The college was founded in 1969 by Tonian Hohberg, who is its president and CEO.[BN] The Plaintiff is represented by: C.K. Lee, Esq. Lee Litigation Group, PLLC 30 East 39th Street 2nd Floor New York, NY 10016 Tel: (212) 465-1188 Fax: (212) 465-1181 Email: cklee@leelitigation.com FERRELLGAS PARTNERS: Appeal in N.Y. Class Action Underway --------------------------------------------------------- Ferrellgas Partners, L.P. said in its Form 10-Q Report filed with the Securities and Exchange Commission on December 6, 2018, for the quarterly period ended October 31, 2018, that the appeal in the securities class action lawsuits filed in New York is ongoing. Ferrellgas has been named, along with several current and former officers, in several class action lawsuits alleging violations of certain securities laws based on alleged materially false and misleading statements in certain of the Company's public disclosures. The lawsuits, the first of which was filed on October 6, 2016 in the Southern District of New York, seek unspecified compensatory damages. Derivative lawsuits with similar allegations have been filed naming Ferrellgas and several current and former officers and directors as defendants. On April 2, 2018, the securities class action lawsuits were dismissed with prejudice. On April 30, 2018, the plaintiffs filed a notice of appeal to the United States Court of Appeals for the Second Circuit and the parties are preparing appellate briefs. Ferrellgas Partners said, "At this time the derivative lawsuits remain stayed by agreement. Ferrellgas believes that it has defenses and will vigorously defend these cases. Ferrellgas does not believe loss is probable or reasonably estimable at this time related to the putative class action lawsuits or the derivative actions." No further updates were provided in the Company's SEC report. Ferrellgas Partners, L.P. distributes and sells propane and related equipment and supplies. The company transports propane to propane distribution locations, tanks on customers' premises, or to portable propane tanks delivered to retailers. Ferrellgas Partners, L.P. was founded in 1939 and is headquartered in Overland Park, Kansas. FERRELLGAS PARTNERS: Consolidated Class Suit in Missouri Ongoing ---------------------------------------------------------------- Ferrellgas Partners, L.P. said in its Form 10-Q Report filed with the Securities and Exchange Commission on December 6, 2018, for the quarterly period ended October 31, 2018, that the company continues to defend itself from a consolidated class action lawsuit in the Western District of Missouri. Ferrellgas has been named as a defendant, along with a competitor, in putative class action lawsuits filed in multiple jurisdictions. The lawsuits, which were consolidated in the Western District of Missouri on October 16, 2014, allege that Ferrellgas and a competitor coordinated in 2008 to reduce the fill level in barbeque cylinders and combined to persuade a common customer to accept that fill reduction, resulting in increased cylinder costs to direct customers and end-user customers in violation of federal and certain state antitrust laws. The lawsuits seek treble damages, attorneys' fees, injunctive relief and costs on behalf of the putative class. These lawsuits have been consolidated into one case by a multidistrict litigation panel. The Federal Court for the Western District of Missouri initially dismissed all claims brought by direct and indirect customers other than state law claims of indirect customers under Wisconsin, Maine and Vermont law. The direct customer plaintiffs filed an appeal, which resulted in a reversal of the district court's dismissal. The company filed a petition for a writ of certiorari which was denied. An appeal by the indirect customer plaintiffs resulted in the court of appeals affirming the dismissal of the federal claims and remanding the case to the district court to decide whether to exercise supplemental jurisdiction over the remaining state law claims. Ferrellgas believes it has strong defenses to the claims and intends to vigorously defend against the consolidated case. Ferrellgas does not believe loss is probable or reasonably estimable at this time related to the putative class action lawsuit. Ferrellgas Partners, L.P. distributes and sells propane and related equipment and supplies. The company transports propane to propane distribution locations, tanks on customers' premises, or to portable propane tanks delivered to retailers. Ferrellgas Partners, L.P. was founded in 1939 and is headquartered in Overland Park, Kansas. FGF BRANDS: Friend Sues Over Mislabeled Naan Products ----------------------------------------------------- Emily Friend, individually and on behalf of a class of similarly situated individuals v. FGF Brands (USA) Inc., and FGF Brands, Inc., Case No. 1:18-cv-07644 (N.D. Ill., November 16, 2018), is brought against the Defendants for violations of the Illinois Consumer Fraud and Deceptive Business Practices Act and Uniform Deceptive Trade Practices Act. The Plaintiff brings this Class Action Complaint against the Defendants for their negligent, reckless, and intentional practice of misrepresenting that several of their naan products sold throughout the United States are baked in a tandoor oven, when in reality they are not. The Plaintiff seeks both injunctive and monetary relief on behalf of the proposed Classes, including requiring full disclosure of the actual baking processes and ovens used to bake their naan, correction of Defendants' marketing, advertising, and labeling, and the restoration of monies to the members of the proposed Classes. The Plaintiff Emily Friend is, and at all times relevant hereto has been, a citizen of the state of Illinois. Plaintiff has routinely purchased the Mislabeled Naan, including the Stonefire Original Naan and Stonefire Original Mini naan, from several stores, including Jewel and Mariano's. The Defendant FGF Brands, Inc., is a corporation organized and existing under the laws of the State of Delaware, with its principal place of business located at 16500 Collins Ave., Unit 952, Sunny Isles, FL 33160. The Defendant FGF Brands, Inc. is a corporation organized and existing under the laws of Ontario, Canada, with its principal place of business located at 2600 Drew Road, Mississauga, Ontario L4T 3m5. The Defendants formulate, develop, manufacture, label, distribute, market, advertise, and sell the Mislabeled Naan throughout the United States, including in this District, beginning in 2005 and continuing through present. [BN] The Plaintiff is represented by: Katrina Carroll, Esq. Kyle A. Shamberg, Esq. Nicholas R. Lange, Esq. LITE DEPALMA GREENBERG, LLC 111 W. Washington Street, Ste 1240 Chicago, IL 60602 Tel: (312) 750-1265 E-mail: KCarroll@LiteDePalma.com KShamberg@LiteDePalma.com NLange@LiteDePalam.com - and - Richard R. Gordon, Esq. GORDON LAW OFFICES, LTD 111 W. Washington Street, Ste 1240 Chicago, IL 60602 Tel: (312) 332-5200 E-mail: RRG@GordonLawChicago.com FINANCIAL RECOVERY: Taubenfliegel Sues Debt Collector Under FDCPA ----------------------------------------------------------------- A class action lawsuit has been filed against Financial Recovery Services, Inc. The case is styled as Menachem Taubenfliegel and Elizabeth Taubenfliegel, on behalf of themselves and all other similarly situated consumers, Plaintiffs v. Financial Recovery Services, Inc., Defendant, Case No. 1:18-cv-06930 (E.D. N.Y., December 5, 2018). The docket of the case states the nature of suit as Consumer Credit filed pursuant to Fair Debt Collection Act. Financial Recovery Services, Inc. provides debt collection services to consumer creditors, finance companies, and debt buyers. It serves bank and retail credit card, installment loan and DDA, payday loans, purchased debt service contracts, and utility markets. The company was founded in 1996 and is based in Edina, Minnesota.[BN] The Plaintiffs are represented by: Adam Jon Fishbein, Esq. Adam J. Fishbein, P.C. 735 Central Avenue Woodmere, NY 11598 Tel: (516) 668-6945 Email: fishbeinadamj@gmail.com FLY JAMAICA: Faces Class Action Over Flight OJ256 Crash ------------------------------------------------------- On November 23, 2018, Howie, Sacks & Henry LLP and Camp Fiorante Matthews Mogerman LLP filed a Class Action lawsuit with the Superior Court of Ontario against Fly Jamaica for injuries and losses sustained on Flight OJ256 on November 9, 2018. On November 9, 2018, Fly Jamaica Flight OJ256 left Guyana's Cheddi Jagan International Airport headed for Toronto shortly after 1:00 am EST. The Boeing 757, carrying 84 Canadian passengers, was forced to return to the airport 20 minutes into the flight after experiencing hydraulic problems. The plane overshot the runway and crash landed; several of the plane's tires blew out and its right engine became dislodged from its wing as the plane came to a stop metres from a deep embankment. Passengers suffered a variety of injuries, and lost belongings that were left on the plane after evacuating, such as jewellery, cash and electronics. Passengers also had to reportedly arrange and pay for their transportation home. The class action will seek to obtain appropriate compensation for the damage caused to the passengers. John and Tulsidai Somwar are the Representative Plaintiffs for the Proposed Class Action. "I am honoured to have the opportunity to work with Camp Fiorante in representing this proposed class. We will hopefully be able to assist this group of people in finding answers surrounding the accident and help them recover their losses," says HSH partner Paul Miller -- PMiller@hshlawyers.com. "He was previously co-lead counsel with Camp Fiorante for the victims of the 2005 Air France crash at Toronto's Pearson airport; HSH associate Valerie Lord, a passenger on that flight whose experience seeking compensation prompted her interest in pursuing a legal career, are members of our team who are pursuing this class action. About Howie, Sacks & Henry LLP (HSH) Formed in 2000, HSH -- http://www.hshlawyers.com-- is consistently ranked as one of Canada's top personal injury law firms. With a mission to handle serious personal injury cases with compassion and professionalism, HSH strives to ensure its clients receive adequate compensation for their pain, suffering, damages and future needs. HSH advances mass tort claims and class actions on behalf of people injured by dangerous products, pharmaceuticals and medical devices, representing their interests and advocates for their needs as they fight for justice. About Camp Fiorante Matthews Mogerman LLP With over 100 years collective experience, Camp Fiorante represents victims or families of victims who have been seriously injured or killed by product malfunctions, including complex products like aircraft, or who have suffered loss or injury due to individual negligence or systems failures. [GN] FLYWHEEL SPORTS: Fantis Sues Over Illegal SMS Ad Blasts ------------------------------------------------------- Christie Fantis, individually and on behalf of all others similarly situated, Plaintiff, v. Flywheel Sports, Inc., Defendant, Case No. 18-cv-24934 (S.D. Fla., November 27, 2018), seeks to secure redress for violations of the Telephone Consumer Protection Act, injunctive relief and statutory damages. Flywheel Sports is a company that provides stadium cycling and precision training services. To promote its services, It engages in unsolicited SMS marketing sent en masse. [BN] Plaintiff is represented by: Andrew J. Shamis, Esq. SHAMIS & GENTILE, P.A. 14 NE 1st Avenue, Suite 400 Miami, FL 33132 Telephone: 305-479-2299 Email: ashamis@shamisgentile.com - and - Scott Edelsberg, Esq. EDELSBERG LAW, PA 19495 Biscayne Blvd #607 Aventura, FL 33180 Telephone: (305) 975-3320 Email: scott@edelsberglaw.com FOCUS FINANCIAL: Sued Over Abusive Debt Collection Practices ------------------------------------------------------------ Leonard Weinberg, Successor-In-Interest to Decedent Jeanne Weinberg, individually and on behalf of all others similarly situated, Plaintiffs, v. Focus Financial Assn, LLC, and Does 1 through 10, inclusive, and each of them, Defendant, Case No. 2:18-cv-10157 (C.D. Cal., December 6, 2018) is a class action against Defendant, under the Federal Fair Debt Collection Practices Act and the Rosenthal Fair Debt Collection Practices Act, both of which were enacted to eliminate abusive debt collection practices by debt collectors, and to prohibit debt collectors from engaging in unfair or deceptive acts or practices in the collection of consumer debts. This case arises as a result of false, deceptive, and unfair debt collection practices promulgated nationwide by Defendant in its collection letter campaigns wherein Defendant misrepresents consumer and debtor rights. The Defendant attempted to collect debts from Plaintiff and other consumers and debtors by systematically sending them mail based collection correspondence that overshadow the disclosure requirements under Federal and State statutes and making material misrepresentations that are inconsistent with the disclosure requirements aforementioned in violation of the FDCPA, says the complaint. The Defendant's acts and omissions were intentional, and resulted from Defendant's desire to mislead debtors and consumers into making payments without apprising them of their rights under both Federal and State laws, adds the complaint. Plaintiff is a natural person residing in Ventura County, State of California who is allegedly obligated to pay a debt, and from whom a debt collector seeks to collect a consumer debt which is alleged to be due and owing. Defendant is a company that uses any instrumentality of interstate commerce or the mails in its business, the principal purpose of which is the collection of any debts; it also regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. Doe Defendants 1 through 10, inclusive, are currently unknown to Plaintiff, who therefore sues such Defendants by fictitious names.[BN] The Plaintiff is represented by: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. Meghan E. George, Esq. Thomas E. Wheeler, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St., Suite 780 Woodland Hills, CA 91367 Phone: 323-306-4234 Fax: 866-633-0228 Email: tfriedman@toddflaw.com abacon@toddflaw.com mgeorge@toddflaw.com twheeler@toddflaw.com FOH ONLINE CORP: Damiano Sues Over Illegal SMS Ad Blasts -------------------------------------------------------- Joanna Damiano, individually and on behalf of all others similarly situated, Plaintiff, v. FOH Online Corp., a Delaware corporation, Defendant, Case No. 18-cv-03060 (E.D. Cal., November 27, 2018), seeks actual and statutory damages, an injunction requiring Defendant to cease all text messaging activity and to honor opt-out requests, reasonable attorneys' fees and costs and such further and other relief the Court deems reasonable and just under the Telephone Consumer Protection Act. FOH is an online retailer of women's lingerie selling products through its website www.fredericks.com. It also has a mobile application that allows consumers to sign up for FOH text messages and promotions and send text message en masse to thousands of cellular telephone numbers throughout the United States. Plaintiff expressly "opted-out" or requested not to receive text messages by responding "STOP" or with similar commands. Plaintiff is represented by: Rebecca Davis, Esq. Richard T. Drury, Esq. LOZEAU DRURY LLP 410 12th Street, Suite 250 Oakland, CA 94607 Telephone: (510) 836-4200 Facsimile: (510) 836-4205 Email: richard@lozeaudrury.com rebecca@lozeaudrury.com FULTON COUNTY, GA: Class Action Over Jail Release Policy Okayed --------------------------------------------------------------- The Associated Press reports that a federal judge has approved class action status for a lawsuit challenging the release policy of a jail in Atlanta. The Atlanta Journal-Constitution reported the ruling by U.S. District Judge Michael L. Brown in November means others can join the lawsuit challenging the Fulton County jail policy. A number of people sued, saying they were held more than 24 hours after they should have been released. The lawsuit says Fulton County requires deputies to look up detainees in a state database before they're released. The lawsuit says there is no state or federal requirement for the checks. The lawsuit says when the database was down several days in 2014, the sheriff's office waited until the system was online before releasing people. Sheriff Ted Jackson's office wouldn't comment on the lawsuit. [GN] GC SERVICES: Garita Files Suit Under FDCPA in New York ------------------------------------------------------ A class action lawsuit has been filed against GC Services Limited Partnership. The case is styled as Ana Garita, on behalf of herself and all others similarly situated, Plaintiff v. GC Services Limited Partnership, Defendant, Case No. 1:18-cv-06866 (E.D. N.Y., December 3, 2018). The lawsuit arises under the Fair Debt Collection Practices Act. GC Services Limited Partnership provides accounts receivable and customer care solutions to public and private sector organizations. It offers first party receivable programs, including cure programs, early stage collections, and pre charge-off collections; third party receivables management programs, such as post charge-off collections and skip tracing services.[BN] The Plaintiff is represented by: Daniel C Cohen, Esq. Cohen & Mizrahi LLP 300 Cadman Plaza West 12th Floor Brooklyn, NY 11201 Tel: (929) 575-4175 Fax: (929) 575-4195 Email: dan@cml.legal GENERAL ASSEMBLY: Court Enters Final Judgment in Marin FLSA Suit ---------------------------------------------------------------- Judge S. James Otero of the U.S. District Court for the Central District of California has issued final judgment in the case, JOHN MARIN and KEYAN BAGHERI, individuals; on behalf of themselves and all others similarly situated, Plaintiffs, v. GENERAL ASSEMBLY SPACE, INC., Defendant, Case No. 2:17-CV-05449-SJO-KSx (C.D. Cal.). A Fairness Hearing was held on Nov. 26, 2018. Having considered the evidence submitted and argued by the Parties, and any objections to the Settlement submitted, the Judge granted final approval of the Settlement, and entered final judgment and order of dismissal of the case. He certified the Settlement Class in the Action defined as all current and former instructors engaged by General Assembly Space Inc. as independent contractor instructors, whether hired as a business entity or as an individual, including without limitation all immersive course instructors, part time course instructors, classes and workshop instructors, and assistant or associate instructors, in California from July 24, 2013, through the date preliminary approval is granted, or June 30, 2018, whichever is sooner. The action is dismissed with prejudice, and without costs to any party, except as provided for in the Settlement Agreement and in the Final Judgment. The Parties have so agreed, good cause appearing, and there being no just reason for delay, Judge James expressly directed that the Final Judgment and order of dismissal with prejudice be, and is, entered as a final and appealable order. A full-text copy of the Court's Dec. 4, 2018 Final Judgment is available at https://is.gd/1sioh8 from Leagle.com. John Marin, individually and on behalf of all others similarly situated, Plaintiff, represented by Brian S. Kabateck -- bsk@kbklawyers.com -- Kabateck Brown Kellner LLP, Charles L. Murray, III, Charles Murray Law Offices, Cheryl Ann Kenner -- ckenner@shegerianlaw.com -- Kabateck Brown Kellner LLP & Shant Arthur Karnikian -- sk@kbklawyers.com -- Kabateck Brown Kellner LLP. Keyan Bagheri, individually and on behalf of all others similarly situated, Plaintiff, represented by Charles L. Murray, III, Charles Murray Law Offices, Cheryl Ann Kenner, Kabateck Brown Kellner LLP, Jamin Samuel Soderstrom -- jamin@soderstromlawfirm.com -- Soderstrom Law PC & Shant Arthur Karnikian, Kabateck Brown Kellner LLP. General Assembly Space, Inc., Defendant, represented by Consuelo Beatrice Nunez-Bellamy -- beatricenunezbellamy@dwt.com -- Davis Wright Tremaine LLP, Janet Lynn Grumer -- janetgrumer@dwt.com -- Davis Wright Tremaine LLP & Kathryn S. Rosen -- katierosen@dwt.com -- David Wright Tremaine LLP. GREENSTAR AGRICULTURAL: March 26 Claims Filing Deadline Set ----------------------------------------------------------- IF YOU ACQUIRED SECURITIES OF GREENSTAR AGRICULTURAL CORPORATION BETWEEN MAY 31, 2011 AND JUNE 3, 2014, Read this notice carefully as it may affect your legal rights On October 20, 2014, an action styled Partridge v GreenStar Agricultural Corporation, et al was commenced in the Ontario Superior Court of Justice (Toronto Region) against GreenStar Agricultural Corporation [TSXV Delisted: GRE, CUSIP: 39573T101, ISIN: CA 39573T1012], certain of its former directors and executive officers and its former auditor. The Plaintiff alleged that certain disclosure and offering documents released by GRE on and after May 30, 2012 were materially misleading. The Plaintiff alleged this resulted in damage to GRE shareholders who acquired GRE securities during the period from and including May 31, 2011 to and including the cessation of trading in GRE common shares on June 3, 2014 (the "Class Period", "Class Members" and the "Action"). A settlement of the Action with G. Michael Newman, Brian J. Knebel, Francesco Galati, Michael Lam and Schwartz Levitsky Feldman LLP ("Settling Defendants" and "Settlement") has been approved by the Court (the "Settlement"). The Settlement resolves the Action entirely, including as against GRE and its director and CEO, Guan Lianyun, who did not defend the Action. The Settlement provides for settlement funds of $500,000.00 (CDN), to be paid for the benefit of the Class Members before deductions for legal fees and expenses to administer the Settlement. The Settlement is a compromise of disputed claims and is not an admission of liability, wrongdoing or fault on the part of the Settling Defendants, all of whom have denied and continue to deny the allegations made against them in the Action. If you acquired GRE common shares during the Class Period, you may be eligible for compensation. In order to recover any such compensation, you must submit an electronic or paper claim to Analytics Consulting LLC no later than March 26, 2019. NOTE: If you do not timely submit a claim, you will not be entitled to any compensation; and, unless you have previously opted out, you will not be entitled to pursue any other action in respect of those claims. For more information about the Settlement, your rights and how to exercise them, including how to make a claim, please contact the Claims Administrator at: GreenStar Securities Settlement c/o Analytics Consulting LLC P.O. Box 2002 Chanhassen, Minnesota 55317-2002 USA Website: https://www.collectiveaction.io/greenstar/ Email: GreenstarLitigation@noticeadministrator.com For more information about the Settlement please also consult the long-form notice or contact Class Counsel at: Siskinds LLP Nicholas Baker 680 Waterloo Street London Ontario N6A 3V8 Tel: 1-800-461-6166 x7868 nicholas.baker@siskinds.com www.siskinds.com and www.classaction.ca [GN] H&R BLOCK: Faces Class Action Over No-Poach Agreements ------------------------------------------------------ Bloomberg Law reports that H&R Block Inc. suppressed employee wages and restricted worker mobility by forcing no-poach agreements on its franchisees and company-owned stores, a new class action complaint alleges. The tax preparation giant is accused of requiring its franchisees to sign agreements blocking them from soliciting employees of H&R Block or any of its franchises. The company allegedly follows a parallel policy in its company-owned stores. These no-poach agreements inhibit competition, restrict employee movement, and depress wages in violation of federal antitrust laws, according to the Nov. 23 lawsuit. The specialized nature of H&R Block's business -- which requires thousands of seasonal workers who've undergone extensive, company-specific training—should lead to a "robust" competition for qualified workers, the lawsuit claims. Instead, the company's anticompetitive conduct kept wages low: H&R Block's seasonal tax preparers earn, on average, $10.86 per hour, while the Bureau of Labor Statistics lists an average hourly wage of $22.67 for tax preparers, according to the lawsuit. The complaint follows a July 2018 announcement by 11 state attorneys general into no-poach agreements in fast-food industry franchise contracts. "Within days" of this announcement, H&R Block announced that it would stop including and enforcing no-poach agreements in its franchise contracts, the complaint alleges. H&R Block employed more than 70,000 workers at the height of 2018 tax season, with franchise locations employing as many as 30,000 more, according to the complaint. The proposed class contains tens of thousands of members, the lawsuit alleges. An H&R Block spokeswoman said the company is reviewing the complaint and doesn't comment on pending litigation. The case was filed in the U.S. District Court for the Western District of Missouri by Paul LLP and Hartley LLP. The case is Ramsey v. H&R Block, Inc., W.D. Mo., No. 4:18-cv-00933-ODS, complaint 11/23/18. [GN] HARRY'S NURSES: Seeks 2nd Cir. Review of Orders in Gayle Suit ------------------------------------------------------------- Defendants Harry Dorvilien and Harry's Nurses Registry filed an appeal from the District Court's orders dated September 30, 2018, and November 6, 2018, issued in the lawsuit titled Gayle, et al. v. Harry's Nurses Registry, et al., Case No. 07-cv-4672, in the U.S. District Court for the Eastern District of New York (Brooklyn). The lawsuit alleges violations of the Fair Labor Standards Act. The appellate case is captioned as Gayle, et al. v. Harry's Nurses Registry, et al., Case No. 18-3472, in the United States Court of Appeals for the Second Circuit. Defendants-Appellants Harry's Nurses Registry and Harry Dorvilien, of Jamaica, New York, appear pro se.[BN] Plaintiffs-Appellees Claudia Gayle, Individually, On Behalf of All Others Similarly Situated and as Class Representative, et al., are represented by: Jonathan Adam Bernstein, Esq. LEVY DAVIS & MAHER LLP 39 Broadway New York, NY 10006 Telephone: (212) 371-0033 E-mail: jbernstein@levydavis.com HASTINGS COLLEGE: Sullivan Suit Asserts Disabilities Act Breach --------------------------------------------------------------- A class action lawsuit has been filed against Hastings College. The case is styled as Phillip Sullivan, Jr., on behalf of himself and all others similarly situated, Plaintiff v. Hastings College, Defendant, Case No. 1:18-cv-11249 (S.D. N.Y., December 3, 2018). The lawsuit arises under the Americans with Disabilities Act. Hastings College is a private, church-related, residential liberal arts college in Hastings, Nebraska.[BN] The Plaintiff is represented by: C.K. Lee, Esq. Lee Litigation Group, PLLC 30 East 39th Street 2nd Floor New York, NY 10016 Tel: (212) 465-1188 Fax: (212) 465-1181 Email: cklee@leelitigation.com HAYES BEER: Ill. App. Affirms Reversal of Byrne Suit Dismissal -------------------------------------------------------------- Judge Michael B. Hyman of the Appellate Court of Illinois for the First District, Second Division, affirmed the circuit court's order (i) reversing the Illinois Department of Labor's dismissal of the case, JAMES BYRNE, on Behalf of Himself and All Employees of Hayes Beer Distribution Company, Plaintiffs-Appellees, v. HAYES BEER DISTRIBUTING COMPANY, Defendant-Appellant, Case No. 1-17-2612 (Ill. App.), and (ii) remanding for additional proceedings. Hayes supplies beer and other beverages to retail stores. It adopted a policy of deducting money from its delivery drivers' Commissions for beer that stayed on the shelf too long and became stale. Byrne, a delivery driver, filed a complaint with the Illinois Department of Labor arguing that Hayes's "stale beer" policy violates section 9 of the Illinois Wage Payment and Collection Act, which requires that employees agree to any wage deductions in writing at the time the deduction is made. Hayes and the International Brotherhood of Teamsters Union No. 703 entered into a collective bargaining agreement ("CBA") covering delivery drivers. Article 12 of the CBA describes the drivers' commission pay structure. Hayes says its policy of deducting commission for stale beer is a reasonable measure to comply with the Illinois Liquor Control Commission regulations, which are intended to ensure "the health, safety, and welfare of the People of the State of Illinois." It also contends stale beer deductions are rare and average between 1 to 2% of a driver's gross wages, with an average charge of $15 per case. According to Hayes, drivers are aware of the amounts deducted, and the CBA contains a grievance procedure should an employee not agree with the deduction policy or a deduction. Nothing in the CBA directly addresses adjustments for stale beer, and nothing in the record shows that Byrne or other drivers consented to Hayes deducting money from their pay for the cost of the stale beer. Hayes does not claim that drivers signed a valid assignment or wage deduction order or otherwise voluntarily consented to the pay deductions. The Department notified Hayes it had received a complaint that Hayes was not complying with the Minimum Wage Law and that the Department would be investigating Hayes' pay practices. The complaint, which had been filed by Teamsters Local No. 703, alleged that Hayes' deductions from drivers' commissions, especially the deduction for stale beer, often resulted in hourly income for drivers of less than that required by the Minimum Wage Law. Thereafter, the Department notified Hayes' attorney it had transferred the investigation to the wage claim specialist in the Fair Labor Standards Division. About a week later, Byrne, a delivery driver for Hayes, filed a separate claim with the Department on behalf of himself and similarly situated employees, alleging Hayes's practice of deducting money from employees' pay for stale beer violated section 9 of the Illinois Wage Payment and Collection Act, which requires employees agree to a wage deduction in writing at the time of the deduction. A notice of noncompliance with the Minimum Wage Law ordered Hayes to pay $64,451.65 in wages, the stale beer deductions. Hayes requested a review arguing (i) it paid drivers covered by the audit above the minimum wage, even after stale beer deductions, (ii) the motor vehicle exemption of the Minimum Wage Law exempts its drivers, and (iii) section 301 of the LMRA preempts application of the Minimum Wage Law to the deduction practice. An administrative law judge's order held Hayes had not violated the Minimum Wage Law and dismissed the investigation, making Hayes' request for review moot. The order stated, however, that the question of whether Hayes may make deductions for stale beer, which contains a unionized atmosphere and is governed by a collective bargaining agreement remained open and would move forward under the Wage Act. The Department then dismissed Byrne's Wage Act claim, finding that the Department did not have jurisdiction to determine whether drivers gave a voluntary deduction because doing so would require interpreting the CBA, thereby intruding into an area preempted by section 301 of the federal Labor Management Relations Act ("LMRA"). Byrne filed a complaint for administrative review of the Department's dismissal of his claim, which the circuit court granted, remanding for further proceedings before the Department. The court acknowledged the principle stated in Atchley v. Heritage Cable Vision Associates, that Section 301 preempts claims directly founded on or substantially dependent on analysis of a collective-bargaining agreement. The court concluded that it is plainly not such a case. It also observed that even if it was to interpret the CBA, it could not ignore the employees' alleged statutory right to consent to pay deductions. The claim is not founded upon the parties' collective bargaining agreement, and the same needs not be interpreted to resolve the matter. Hayes filed a petition for leave to file an interlocutory appeal under Illinois Supreme Court Rule 306(a)(6). It argues (i) that Byrne's wage claim does not require interpretation of the CBA, and (ii) that the Illinois law allows employees to contract around the no-deduction provision in the Wage Act. Judge Hyman agrees with the circuit court. He finds that the CBA describes the drivers' duties to rotate product to maintain freshness but does not describe how that provision will be enforced and whether Hayes can deduct from drivers' compensation for stale beer. In short, because Byrne's claim arises under section 9 of the Wage Act and nothing in the CBA addresses the consequences of failing to rotate the beer, there is nothing requiring interpretation of the CBA. He also finds that the CBA does not expressly permit Hayes to make deductions for stale beer, and the language of section 9 of the Wage Act, unlike the language of the One Day Rest in Seven Act, is mandatory, not permissive. Moreover, courts have generally held that parties to a labor agreement may not contract for something that is illegal under state law. He notes that, although the parties could not have contracted around the requirements of the Wage Act, they could have included a provision in the CBA detailing procedures for handling stale beer. The Judge holds that CBA provides that drivers must rotate the beer to ensure freshness but fails to specify the consequences, if any, if the beer goes stale. The parties could have negotiated penalties for drivers for failing to timely remove stale beer from shelves, and that provision could have been made part of the CBA. Instead, Hayes unilaterally adopted a policy of deducting wages without the driver's written consent in violation of section 9 of the Wage Act. For these reasons, Judge Hyman affirmed the circuit court's decision to reverse the Department's dismissal and remanded for further proceedings. A full-text copy of the Court's Dec. 4, 2018 Opinion is available at https://is.gd/aZzdL1 from Leagle.com. I3 VERTICALS: Settlement in Expert Auto Suits Receives No Objection ------------------------------------------------------------------- i3 Verticals, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on December 7, 2018, for the fiscal year ended September 30, 2018, that no class member opted out or filed an objection to the settlement in the Expert Auto Litigation, before the deadline. On June 14, 2016, Expert Auto Repair, Inc., for itself and on behalf of a class of additional plaintiffs, and Jeff Straight initiated a class action lawsuit against the Company, as alleged successor to Merchant Processing Solutions, LLC, in the Los Angeles County Superior Court of California, seeking damages, restitution and declaratory and injunctive relief (the "Expert Auto Litigation"). The plaintiffs alleged that Merchant Processing Solutions, LLC, the Company's alleged predecessor, engaged in unfair business practices in the merchant services sector including unfairly inducing merchants to obtain credit and debit card processing services and thereafter assessing them with improper fees. Subject to final court approval, the Company has entered into a settlement agreement to settle the plaintiffs' claims for $995. On April 10, 2018, the Court granted conditional class certification and preliminary approval of the agreed settlement and scheduled the final fairness hearing and final approval of the settlement in December 2018. Notice was provided to all class members and they were given an opportunity to either file a claim, opt-out, file an objection or do nothing (in which case they would be included in the class settlement). The deadline for class members to take one of these four actions was November 8, 2018. No class member opted out or filed an objection to the settlement before that deadline. i3 Verticals said, "The reserved amount is reflected in accrued expenses and other current liabilities as of September 30, 2018. The amount was included in general and administrative expenses in the consolidated statement of operations for the year ended September 30, 2017." i3 Verticals, Inc. provides integrated payment and software solutions to small- and medium-sized businesses and organizations in education, non-profit, public sector, property management, and healthcare markets in the United States. The company was founded in 2012 and is headquartered in Nashville, Tennessee. IDG COMMUNICATIONS: Sullivan Suit Asserts ADA Violation ------------------------------------------------------- IDG Communications, Inc. is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Phillip Sullivan, Jr., on behalf of himself and all others similarly situated, Plaintiff v. IDG Communications, Inc., Defendant, Case No. 1:18-cv-11254 (S.D. N.Y., December 3, 2018). IDG Communications Inc. is a technology media company, that engages in print and online publishing. The company was founded in 1967 and is based in Framingham, Massachusetts. IDG Communications Inc. operates as a subsidiary of International Data Group Inc.[BN] The Plaintiff is represented by: C.K. Lee, Esq. Lee Litigation Group, PLLC 30 East 39th Street 2nd Floor New York, NY 10016 Tel: (212) 465-1188 Fax: (212) 465-1181 Email: cklee@leelitigation.com IDT CORP: Appeal in JDS1 LLC Class Suit Still Pending ----------------------------------------------------- IDT Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on December 10, 2018, for the quarterly period ended October 31, 2018, that thr appeal in the consolidated class action initiated by JDS1, LLC, is still pending. On July 31, 2013, the Company completed a pro rata distribution of the common stock of the Company's subsidiary Straight Path Communications Inc. ("Straight Path") to the Company's stockholders of record as of the close of business on July 25, 2013 (the "Straight Path Spin-Off"). On July 5, 2017, plaintiff JDS1, LLC, on behalf of itself and all other similarly situated stockholders of Straight Path, and derivatively on behalf of Straight Path as nominal defendant, filed a putative class action and derivative complaint in the Court of Chancery of the State of Delaware against the Company, The Patrick Henry Trust (a trust formed by Howard S. Jonas that held record and beneficial ownership of certain shares of Straight Path he formerly held), Howard S. Jonas, and each of Straight Path's directors. The complaint alleges that the Company aided and abetted Straight Path Chairman of the Board and Chief Executive Officer Davidi Jonas, and Howard S. Jonas in his capacity as controlling stockholder of Straight Path, in breaching their fiduciary duties to Straight Path in connection with the settlement of claims between Straight Path and the Company related to potential indemnification claims concerning Straight Path's obligations under the Consent Decree it entered into with the FCC, as well as the sale of Straight Path's subsidiary Straight Path IP Group, Inc. to the Company in connection with that settlement. That action was consolidated with a similar action that was initiated by The Arbitrage Fund. The Plaintiffs are seeking, among other things, (i) a declaration that the action may be maintained as a class action or in the alternative, that demand on the Straight Path Board is excused; (ii) that the term sheet is invalid; (iii) awarding damages for the unfair price stockholders received in the merger between Straight Path and Verizon Communications Inc. for their shares of Straight Path's Class B common stock; and (iv) ordering Howard S. Jonas, Davidi Jonas, and the Company to disgorge any profits for the benefit of the class Plaintiffs. On August 28, 2017, the Plaintiffs filed an amended complaint. On September 24, 2017, the Company filed a motion to dismiss the amended complaint. On November 20, 2017, the Delaware Chancery Court issued an order staying the case pending the closing of the transaction between Verizon and Straight Path on the grounds that the claims were not ripe. That transaction closed on February 28, 2018 and the Court was so notified. The motion to dismiss was denied. On July 13, 2018, the Company filed a motion for an interlocutory appeal with the Delaware Chancery Court. The Chancery Court granted the motion and the Delaware Supreme Court accepted the appeal. On September 5, 2018, the Company filed the appeal with the Delaware Supreme Court. On October 5, 2018, the Plaintiffs filed their Answering Brief to the appeal. IDT said, "In the three months ended October 31, 2018 and 2017, the Company incurred legal fees of $0.2 million and $0.8 million, respectively, related to this putative class action, which is included in "Other operating expense" in the accompanying consolidated statements of operations. At this stage, the Company is unable to estimate its potential liability, if any." IDT Corporation operates primarily in the telecommunications and payment industries in the United States and internationally. The company operates in two segments, Telecom & Payment Services, and net2phone-Unified Communications as a Service. IDT Corporation was founded in 1990 and is headquartered in Newark, New Jersey. IDT CORP: Bid to Dismiss Dennis Class Suit Denied ------------------------------------------------- IDT Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on December 10, 2018, for the quarterly period ended October 31, 2018, that the motion to dismiss the putative class action suit filed by Erik Dennis has been denied. On May 21, 2018, Erik Dennis filed a putative class action against IDT Telecom and the Company in the U.S. District Court for the Northern District of Georgia alleging violations of Do Not Call Regulations promulgated by the U.S. Federal Trade Commission. The Company is evaluating the claim, and at this stage, is unable to estimate its potential liability, if any. On August 13, 2018, IDT Telecom and the Company filed a motion to dismiss or in the alternative to strike class allegations. The plaintiff opposed the motion. The motion to dismiss was denied. IDT Telecom and the Company intend to vigorously defend this matter. IDT Corporation operates primarily in the telecommunications and payment industries in the United States and internationally. The company operates in two segments, Telecom & Payment Services, and net2phone-Unified Communications as a Service. IDT Corporation was founded in 1990 and is headquartered in Newark, New Jersey. INFILAW CORP: Plaintiffs Challenge Class Action Settlement ---------------------------------------------------------- Karen Sloan, writing for Law.com, reports that a proposed class action settlement between the owner of the now-closed Charlotte School of Law and former students is facing sharp opposition from some plaintiffs who say defendant InfiLaw Corp. hasn't offered enough financial evidence to justify a relatively low $2.65 million settlement amount. Judge Graham Mullen of the U.S. District Court for the Western District of North Carolina preliminarily approved the settlement in September, but the objectors claim that attorneys representing the settling plaintiffs merely took InfiLaw at its word that its coffers have largely been depleted and that very little money remains from its insurance policy with which to pay former students, who claim they were misled about Charlotte's accreditation status with the American Bar Association. "The point is that we don't know anything for sure," said Kyle Nutt, an attorney with Wilmington, North Carolina, firm Shipman & Wright who is representing 24 former Charlotte students who are objecting to the settlement. "Their CFO submitted an affidavit that said, 'We can't pay more than $150,000 and we have the depleted remains of this insurance policy -- that's all we can ever pay. And here are some financials to support that.' The forensic accountant looked at those financials and said, 'They don't establish what you said they establish.'" In a memorandum of opposition filed on Nov. 26, the 24 objectors represented by Nutt asked the court to deny final approval of the settlement. Nov. 26 was the deadline for opponents to file notice with the court. Anthony Majestro, among the attorneys representing the settling plaintiffs, did not respond to requests for comment on the mounting opposition on Nov. 27. But he said in an interview in September that although the settlement amount is low and cannot make the estimated 2,500 class members whole, it's the best opposition because prolonged litigation will further deplete the InfiLaw's remaining insurance funds. David Mills -- dmills@cooley.com -- an attorney with Cooley who is representing InfiLaw, did not respond to requests for comment on Nov. 27. If approved, the settlement would end four federal suits and 90 state court suits brought against the school by former Charlotte students who claim they should have been informed that the school had run afoul of the ABA's accreditation standards back in 2014. The school's accreditation woes weren't disclosed publicly until the fall of 2016 when the ABA put the school on probation. Shortly thereafter, the U.S. Department of Education booted the for-profit law school from the federal student loan program, and Charlotte eventually closed in August of 2017. InfiLaw and several firms representing the student plaintiffs met for a settlement conference in April, but Mr. Nutt's memorandum claims his group of plaintiffs were excluded from further conversations after they raised concerns about the constitutionality of the proposal, which must meet strict requirements because the so-called "limited fund" settlement does not allow class members to opt out and bring their own actions against InfiLaw. The objecting plaintiffs allege that not only has there been no due diligence on the amount of financial resources that remain at InfiLaw -- attorneys for the settling plaintiffs have taken no depositions, they note -- but that the proposed class is over inclusive. It includes students who attended Charlotte as far back as 2013. (The objectors represented by Nutt attended in the school's final year of operations.) "Here, there are students who attended [Charlotte] both before and after the first finding that [Charlotte] was officially out of compliance with ABA Standards," the memorandum reads. "Many of the class members were able to graduate, pass the bar, and obtain gainful employment; others transferred with a substantial amount of their earned credits intact. The question of damages is thus not as simple or broad as merely identifying the total tuition paid during the relevant period as Defendants have suggested." Under the proposal, InfiLaw would contribute $150,000 to the settlement fund, with another $2.5 million from its insurance policy. That's far less than the estimated $105 million needed to repay a single year of tuition for the 2,500 class members, according to the settlement motion. InfiLaw would also pay a portion of any proceeds from its three pending lawsuits against the ABA brought on behalf of its schools—Charlotte; Arizona Summit Law School; and Florida Coastal School of Law. But even that provision is problematic, according to the objectors, because it would allow InfiLaw to use any lawsuit proceeds to first settle other liabilities before contributing to the settlement fund. "The Supreme Court has made it clear that these mandatory, non-opt out settlements in a class action context are rare and have to be very closely scrutinized because they implicate the constitutional rights of class members to a right to trial by jury and due process," Mr. Nutt said. "We don't believe that what has been presented satisfies what the Supreme Court indicates what must be satisfied in a case like this." [GN] IVARI: Court Says Reasonable to Seek Direct Notice Program ---------------------------------------------------------- Law Times reports that in the case Fantl v. ivari (2018), 2018 CarswellOnt 11870, 2018 ONSC 4443, Perell J. (Ont. S.C.J.), it was reasonable to seek direct notice program in national class action where substantial number of class members resided outside Ontario Defendant was successor to insurance and investment company that was subject of proposed national class action in Ontario. Action involved two distinct and discrete claims, with one relating to management fee overcharges, and other relating to alleged underperformance of particular insurance investment fund. Action was settled in relation to management fee claim, and certification was granted for underperformance claim. Parties agreed about content of notice to class members, but defendant was not satisfied with proposed notice program for sending notice to class members. Parties made submissions on notice program requirements. More robust notice program proposed by defendant was approved, with cost of program to be shared one-third by plaintiff and two-thirds by defendant. Notice program was to involve: (a) direct mail notice to class members based on list of class members provided by defendant; (b) bad-address resolution protocol; (c) posting of notice or link to notice on class counsel's website; (d) posting of notice or link to notice on defendant's website; and (e) class counsel issuing press release about certification of action and indicating that formal notice was available through its website. Plaintiff's notice program would have been adequate for purpose of giving class members notice of right to opt out, but defendant's concern was whether courts in other provinces would recognize Ontario judgment if notice program was not more robust. It was reasonable for defendant to seek direct notice program in national class action where substantial number of class members resided outside Ontario. Since defendant was predominant beneficiary of robust notice program at this juncture, it should bear greater proportion of costs of notice program. [GN] JANSSEN RESEARCH: Haugen Sues Over Xarelto Side Effects ------------------------------------------------------- Barbara Haugen, individually and on behalf of the estate of Howard Haugen, deceased Plaintiff, v. Janssen Research & Development LLC (f/k/a Johnson and Johnson Pharmaceutical Research and Development LLC), Johnson and Johnson, Janssen Pharmaceuticals, Inc. (f/k/a Janssen Pharmaceutica Inc. and Ortho-McNeil-Janssen Pharmaceuticals, Inc.), Janssen Ortho LLC, Bayer Healthcare Pharmaceuticals, Inc., Bayer Pharma AG (f/k/a Bayer Schering Pharma AG), Bayer Corporation, Bayer Healthcare LLC, Bayer Healthcare AG, Bayer AG and John Does 1-5, Defendants, Case No. 18-cv-11587 (E.D. La., November 27, 2018), seeks to recover damages with interest, costs and attorney's fees as well as all such other relief resulting from negligence, breach of express and implied warranty, fraud, fraudulent misrepresentation, fraudulent concealment, negligent misrepresentation and for violation of the Colorado Consumer Protection Laws. Xarelto (rivaroxaban) is an anti-coagulant primarily used to reduce the risk of stroke and systemic embolism in patients with non-valvular atrial fibrillation, to treat deep vein thrombosis and to treat pulmonary embolisms. The Janssen Group is the holder of the approved New Drug Application for Xarelto (R) while Johnson and Johnson and Bayer were engaged in the business of designing, developing, manufacturing, testing, packaging, promoting, marketing, distributing, labeling, and/or selling Xarelto. Howard Haugen experienced bleeding while on Xarelto and on November 27, 2016 was hospitalized for gastrointestinal bleed and was transfused with packed red blood cells. He suffered bleeding as a direct result of his ingestion of Xarelto, says the complaint. [BN] Plaintiff is represented by: Edward A. Wallace, Esq. Timothy E. Jackson, Esq. WEXLER WALLACE LLP 55 West Monroe Street, Suite 3300 Chicago, Illinois 60603 Tel: 312-346-2222 Fax: 312-346-0022 JOE MACHENS: Mo. App. Flips Arbitration Bid Denial in Fogelsong --------------------------------------------------------------- In the case, TINA AND PAUL FOGELSONG, ET AL., Respondents, v. JOE MACHENS AUTOMOTIVE GROUP, INC., ET AL., Appellants, Case No. WD81202 (Mo. App.), Judge Gary D. Witt of the Court of Appeals of Missouri for the Western District reversed the Circuit Court of Boone County, Missouri's denial of Joe Machens' Motion to Stay Proceedings and Compel Arbitration. On Nov. 3, 2015, Tina and Paul Fogelsong, Patrick Bonnot, and Carol Benna, filed a class action suit against Joe Machens alleging that Joe Machens fraudulently sold to the Plaintiffs vehicles marketed as "brand new." But, the Plaintiffs allege that their vehicles had previously sustained hail damage which Joe Machens fixed but did not disclose prior to sale. Joe Machens moved to compel arbitration and stay the action pending the outcome of arbitration. Its Motion alleged that the Plaintiffs had agreed to binding arbitration in conjunction with their vehicle purchases. At the time of purchase, each of the Plaintiffs entered into a "Retail Buyers Order" which contained an agreement to arbitrate any dispute arising out of or related to the purchase of their vehicle. The Retail Buyers Orders signed by the Plaintiffs required the parties to sign twice. Additionally, they were required to sign a separate box containing the Arbitration Agreement itself. The parties conducted limited discovery on the Motion. On Aug. 31, 2017, the circuit court held a hearing on the Motion. It, on Oct. 17, 2017, denied Joe Machens's Motion finding that the Arbitration Agreements were unconscionable. The circuit court found that the Arbitration Agreements were unenforceable because they were unconscionable. The appeal followed. Joe Machens raises three allegations of error on appeal. In its first point on appeal, it alleges that the circuit court erred in denying its Motion because the Arbitration Agreements delegate the question of arbitrability to the arbitrator. It contends that the Court needs not decide whether the circuit court was correct in its finding of unconscionability because, under Missouri law as it currently exists, the Arbitration Agreements reserve that threshold question for determination by an arbitrator. This issue was not presented to the circuit court. Thus, Judge Witt must address whether such a claim is properly before the Court before he can address the merits of the argument. The Judge is persuaded that it would be unfair to Joe Machens to hold that it waived its right to argue that the Arbitration Agreements contained a valid delegation provision by reference to the AAA rules when such an argument was directly contrary to the law as it existed at the time of the proceedings. Joe Machens should be given the benefit of the new avenue of defense created by State ex rel. Pinkerton v. Fahnestock. This is the rare case in which, during the course of the pendency of the appeal, the applicable law was not just clarified or distinguished, but the law actually changed to such an extent that the Supreme Court expressly overruled the existing cases upon which a party had relied in making its arguments below. Granting to Joe Machens the right to now argue application of the delegation provision should not, however, come at the cost of the Plaintiffs being foreclosed from responding to any arguments raised by Joe Machens and bringing any additional challenges to such a provision. Even if there is a delegation provision contained in an arbitration agreement, the Court may still decide any challenges raised to the validity of that provision before ordering the proceedings stayed pending arbitration. Thus, the Judge holds that the case must be remanded to give both parties an equal opportunity to argue the validity of the delegation provision to the circuit court following the Supreme Court's recent decision in Pinkerton. Given the disposition of Point I, the Judge holds he needs not address Joe Machens's Points II and III. The case presents the rare situation in which the law fundamentally changed following the circuit court's ruling and the Court's opinion on appeal. While the circuit court may not have erred at the time it denied Joe Machens' Motion, under these circumstances, the Judge finds that he cannot allow an erroneous interpretation of the law to stand despite the argument not being raised before the lower court. He also cannot allow the Plaintiffs to be unfairly prejudiced by not allowing an opportunity to challenge the validity of the newly incorporated provision under Pinkerton. For these reasons, Judge Witt reversed and remanded the case to give all parties the opportunity to litigate the applicability of the delegation provision post Pinkerton and to give the trial court full opportunity to consider and rule on such arguments. A full-text copy of the Court's Dec. 4, 2018 Order is available at https://is.gd/EBV9Gl from Leagle.com. Blake Green -- blake.greene@dechert.com -- North Kansas City, MO, for respondents. T. Michael Ward -- mward@bjpc.com -- St. Louis, MO, for appellants. JOHNSON & JOHNSON: Sued Over Opioid-related Insurance Coverage -------------------------------------------------------------- Matthew Enriquez, individually and on behalf of all others similarly situated, Plaintiff, v. Johnson & Johnson, Janssen Pharmaceuticals, Inc., Actavis Pharma, Inc., Actavis, LLC, Defendants, Case No. CAM-L-004584-18 (N.J. Super. Ct., Camden Cty., December 6, 2018) seeks to hold Defendants accountable for the economic harm they have imposed on New Jersey purchasers of private health insurance. According to the complaint, Defendants manufacture, market, and sell prescription opioids, which are powerful, highly addictive narcotic painkillers. The Defendants have engaged in a cunning and deceptive marketing scheme to encourage doctors and patients to use opioids to treat chronic pain. In doing so, the Defendants falsely minimized the risks of opioids, overstated their benefits, and generated far more opioid prescriptions than there should have been. The complaint asserts that Defendants knew that their misrepresentations about the risks and benefits of opioids were not supported by, and sometimes were directly contrary to, the scientific evidence. Certain opioid manufacturers, including Endo Pharmaceuticals, Inc. and Purdue Pharma L.P., have entered agreements prohibiting them from making misrepresentations identified in this Complaint in other jurisdictions. Nonetheless, the Defendants continue to misrepresent the risks and benefits of long term opioid use in New Jersey, and they have not corrected their past misrepresentations. The Defendants' false and misleading statements deceived doctors and patients about the risks and benefits of opioids and convinced them that opioids were not only appropriate, but necessary to treat chronic pain. Defendants' conduct has fueled skyrocketing opioid addiction and opioid-related deaths and emergency treatments, and has generated huge sales of opioids at inflated prices. The direct and proximate consequence of Defendants' misconduct is that every New Jersey purchaser of private health insurance paid higher premiums, co-payments, and deductibles, notes the complaint. Insurance companies have considerable market power and pass onto their insureds the expected cost of future care -- including opioid-related coverage. Accordingly, insurance companies factored in the unwarranted and exorbitant healthcare costs of opioid-related coverage caused by Defendants and charged that back to insureds in the form of higher premiums, deductibles, and co-payments, the complaint asserts. Plaintiff, Matthew Enriquez, is a natural person and resident and citizen of the State of New Jersey, residing at 476 Covered Bridge Road, Cherry Hill, New Jersey 08034. Janssen Pharmaceuticals, Inc. is a Pennsylvania corporation with its principal place of business in New Jersey and is a wholly owned subsidiary of Johnson & Johnson. Defendant Johnson & Johnson is a New Jersey corporation with its principal place of business in New Jersey. Actavis Pharma, Inc. (f/k/a Actavis, Inc.) is a Delaware corporation with its principal place of business in New Jersey, and was formerly known as Watson Pharma, Inc. Actavis LLC is a Delaware limited liability company with its principal place of business in New Jersey.[BN] The Plaintiff is represented by: Kyle N. Thompson, Esq. Joshua M. Neuman, Esq. KILCOYNE & NESBITT, LLC 925 Harvest Drive, Suite 200 Blue Bell, PA 19422 Phone: 610.825.2833 Fax: 610.825.3222 Email: kthompson@kilcoynelaw.com jneuman@kilcoynelaw.com - and - William S. Consovoy, Esq. Thomas R. McCarthy, Esq. CONSOVOY MCCARTHY PARK PLLC 3033 Wilson Boulevard, Suite 700 Arlington, VA 22201 Phone: 703.243.9423 Email: will@consovoymccarthy.com tom@consovoymccarthy.com - and - Michael H. Park, Esq. CONSOVOY MCCARTHY PARK PLLC 745 Fifth Avenue, Suite 500 New York, NY 10151 Phone: 212.247.8006 Email: park@consovoymccarthy.com - and - Ashley Keller, Esq. Travis Lenkner, Esq. Seth Meyer, Esq. KELLER LENKNER LLC 150 N. Riverside Plaza, Suite 5100 Chicago, IL 60606 Phone: 312.506.5641 Email: ack@kellerlenkner.com tdl@kellerlenkner.com sam@kellerlenkner.com KESOKI PAINTING: Limonta Sues Over Unpaid Overtime Wages -------------------------------------------------------- Rafael Limonta, and all others similarly situated under 29 U.S.C 206(B), Plaintiff, v. Kesoki Painting, LLC, a Florida Corporation, Monica Patricia Verduci, individually, Defendants, Case No. 2:18-cv-10157 (S.D. Fla., December 6, 2018) seeks to recover from the Defendants unpaid overtime wage compensation, as well as an additional amount as liquidated damages, costs and reasonable attorney's fees pursuant to the Fair Labor Standards Act. Plaintiff routinely worked for Kesoki Painting from Monday through Friday, and over 40 regular hours a week. Specifically, Plaintiff worked an average of 8 hours of overtime per week. Notwithstanding, Kesoki Painting willfully and intentionally failed/refused to pay to Plaintiff the federally required overtime rate for the overtime hours he worked, asserts the complaint. The Defendants knew of the overtime requirements of the Fair Labor Standards Act and yet it willfully, intentionally, and recklessly failed to investigate whether their payroll practices were in accordance with the Fair Labor Standards Act. As a result, Plaintiff has suffered damages and is entitled to receive overtime compensation, says the complaint. Plaintiff regularly utilized and handled materials, equipment and goods manufactured and purchased from outside the state of Florida and regularly used the instrumentalities of interstate commerce in their world. Limonta, is sui juris and a resident of Miami County, Florida. Kesoki is, and was, a Florida corporation, authorized to conduct and conducting business in Miami County, Florida. Verduci is sui juris and a resident of Miami County, Florida.[BN] The Plaintiff is represented by: Monica Espino, Esq. Espino Law 2655 S. Le Jeune Road, Suite 802 Coral Gables, FL 33134 Phone: 305.704.3172 Fax: 305.722.7378 Email: me@espino-law.com Secondary: legal@espino-law.com KIRKLAND'S INC: Continues to Defend Miles Class Action ------------------------------------------------------ Kirkland's, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on December 6, 2018, for the quarterly period ended November 3, 2018, that the Court in Miles v. Kirkland's Stores, Inc., has issued a notice of intent to issue a scheduling order on January 10, 2019. The Company has been named as a defendant in a putative class action filed in May 2018 in the Superior Court of California, Miles v. Kirkland's Stores, Inc. The case has been removed to Federal Court, Central District of California, and trial is not yet set. The complaint alleges, on behalf of Miles and all other hourly Kirkland's employees in California, various wage and hour violations. Kirkland's denies the material allegations in the complaint and believes that its employment policies are generally compliant with California law. The parties have tentatively agreed to an early mediation with minimal exchange of discovery. To date, the parties have exchanged the court mandated initial disclosures, and the Court has issued a notice of intent to issue a scheduling order on January 10, 2019. The Company believes the case is without merit and intends to vigorously defend itself against the allegations. Kirkland's, Inc. operates as a specialty retailer of home décor in the United States. The company's stores provide various merchandise, including holiday decor, framed arts, furniture, ornamental wall decor, fragrance and accessories, mirrors, lamps, decorative accessories, textiles, housewares, gifts, artificial floral products, frames, clocks, and outdoor living items. Kirkland's, Inc. was founded in 1966 and is based in Brentwood, Tennessee. KIRKLAND'S INC: Still Awaits 3rd Cir. Decision in Kamal v. J. Crew ------------------------------------------------------------------ Kirkland's, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on December 6, 2018, for the quarterly period ended November 3, 2018, that the company still awaits the decision of the U.S. Court of Appeals for the Third Circuit in a class action appeal. The Company was named as a defendant in a putative class action filed in April 2017 in the United States District Court for the Western District of Pennsylvania, Gennock v. Kirkland's, Inc. Kamal v. J. Crew Group, Inc. The complaint alleges that the Company, in violation of federal law, published more than the last five digits of a credit or debit card number on customers' receipts. The Company denies the material allegations of the complaint. On January 9, 2018, the District Court denied the Company's motion to dismiss the matter. On January 31, 2018, the Court granted the Company's motion to stay the proceedings in its case pending the Third Circuit's decision in Kamal v. J. Crew Group, Inc., No. 17-2345 (3d. Cir.). The J. Crew case presents the exact same standing issues as the Company's case, but in J. Crew the defendant was granted its motion to dismiss at the trial court level. On appeal, the Third Circuit heard oral argument in the J. Crew case on February 8, 2018, and a decision is expected this year. The Company continues to believe that the case is without merit and intends to continue to vigorously defend itself against the allegations. The matter is covered by insurance, and the Company does not believe that the case will have a material adverse effect on its consolidated financial condition, operating results or cash flows. Kirkland's, Inc. operates as a specialty retailer of home decor in the United States. The company's stores provide various merchandise, including holiday decor, framed arts, furniture, ornamental wall decor, fragrance and accessories, mirrors, lamps, decorative accessories, textiles, housewares, gifts, artificial floral products, frames, clocks, and outdoor living items. Kirkland's, Inc. was founded in 1966 and is based in Brentwood, Tennessee. LA JOLLA: Failed to Properly Pay Signature Gatherers, Wilson Claims ------------------------------------------------------------------- MOSANTHONY WILSON and NANCY URSCHEL, individuals, on behalf of aggrieved employees pursuant to the Private Attorney General Act ("PAGA") v. THE LA JOLLA GROUP, a California Corporation; and DOES 1 through 100, inclusive, Case No. 37-2018-00059999-CU-OE-CTL (Cal. Super. Ct., San Diego Cty., November 28, 2018), alleges that La Jolla fails to pay the Plaintiffs and other signature gatherers proper minimum wage and overtime compensation because it classifies them as independent contractors, not employees. The La Jolla Group is a corporation organized and existing under the laws of the state of California. The true names and capacities of the Doe Defendants are unknown to the Plaintiffs. La Jolla is a for-profit petition drive management firm. The usual course of its business is collecting signatures from registered voters so a proposed initiative can qualify for placement on the election ballot. To accomplish this task, La Jolla hires "signature gatherers," which it classifies as independent contractors. These signature gatherers are paid for each valid signature they collect. The amount they are paid depends on the initiative they are gathering signatures for.[BN] The Plaintiffs are represented by: R. Rex Parris, Esq. Kitty K. Szeto, Esq. John M. Bickford, Esq. Ryan A. Crist, Esq. PARRIS LAW FIRM 43364 10th Street West Lancaster, CA 93534 Telephone: (661)949-2595 Facsimile: (661)949-7524 E-mail: rparris@parrislawyers.com kszeto@parrislawyers.com jbickford@parrislawyers.com rcrist@parrislawyers.com LA OFICINA: Rosa Seeks to Recover Unpaid Minimum, Overtime Pay -------------------------------------------------------------- Jose Rosa, Eduardo Romero Barron, and Doniqua Essamond Phinazee, on behalf of themselves and all others similarly situated, Plaintiffs, v. La Oficina Of Queens, Inc., Heavens Entertainment, Inc., Angels of the World Inc., George Stoupas, and Gus "Doe" Last name being fictitious and unknown, Defendants, Case No. 1:18-cv-06915 (E.D. N.Y., December 5, 2018) seeks to bring this suit to recover minimum wages, overtime compensation, and liquidated damages from Defendants under the applicable provisions of the Fair Labor Standards Act. The Defendants are involved in the adult entertainment industry in that they own and operate three gentlemen's clubs in Queens, New York. Plaintiffs were employed by Defendants as either entertainers, bartenders, and busboys. The Defendants are liable under the FLSA for, inter alia, failing to properly compensate the Plaintiff and the putative FLSA Collective Members. Consistent with Defendants' policy and pattern or practice, the Plaintiffs and the Collective Members have not been paid the proper statutory minimum wage for all hours worked up to 40 in a given week, says the complaint. The Plaintiffs are adult individuals who are residents of New York. At all times herein pertinent, and in the course of their duties, the Plaintiffs regularly handled products which had been moved in commerce. Stoupas and Gus jointly own and operate the Corporate Defendants as a single integrated enterprise. La Oficina was and is a domestic business corporation whose principal place of business is located at 39-20 104 Street, Corona, New York 11368. Heavens was and is a domestic business corporation whose principal place of business is located at 28-26 Steinway Street, Astoria, New York 11103.[BN] The Plaintiffs are represented by: Amit Kumar, Esq 39th 108 West, Street, Suite 602 New York, NY 10018 Phone: (212)583-7400 Email: AKumar@.Cafaroesg.com LIBERTY TAX: Class Action Parties Fail to Reach Accord ------------------------------------------------------ Liberty Tax, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on December 10, 2018, for the quarterly period ended October 31, 2018, that a mediation has taken place in the case entitled, In Re Liberty Tax, Inc. Securities Litigation, Case No. 27 CV 07327, but did not result in a resolution. Rose Mauro, individually and on behalf of all others similarly situated v. Liberty Tax, Inc., Edward L. Brunot, John T. Hewitt, and Kathleen E. Donovan, filed in the United States District Court for the Eastern District of New York on January 12, 2018, Case No. 18 CV 245. Plaintiff filed a securities class action asserting violations of Section 10(b) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") and Rule 10b-5 against all defendants and a second count for violations of Section 20(a) of the Exchange Act against the individual defendants. According to the complaint, throughout the class period, the Company allegedly issued materially false and misleading statements and/or failed to disclose that: (1) Hewitt created an inappropriate tone at the top; (2) the inappropriate tone at the top led to ineffective entity level controls over the organization; and (3) as a result, defendants' statements about the operations and prospects were materially false and misleading and/or lacked a reasonable basis at all relevant times. Patrick Beland, individually and on behalf of all others similarly situated vs. Liberty Tax, Inc., Edward L. Brunot, John T. Hewitt, and Kathleen E. Donovan, filed in the United States District Court for the Eastern District of New York on December 15, 2017, case number 17 CV 7327. Plaintiff filed a securities class action asserting violations of Section 10(b) of the Exchange Act and Rule 10b-5 against all defendants and a second count for violations of Section 20(a) of the Exchange Act against the individual defendants. According to the complaint, throughout the class period, the Company allegedly issued materially false and misleading statements and/or failed to disclose that: (1) Hewitt created an inappropriate tone at the top; (2) the inappropriate tone at the top led to ineffective entity level controls over the organization; and (3) as a result, defendants' statements about the business, operations and prospects were materially false and misleading and/or lacked a reasonable basis at all relevant times. These actions were consolidated with the caption In Re Liberty Tax, Inc. Securities Litigation, Case No. 27 CV 07327 and IBEW Local 98 Pension Fund was appointed the Lead Plaintiff ("Lead Plaintiff"). On June 12, 2018, Lead Plaintiff filed its Consolidated Amended Class Action Complaint, which removed Brunot as a defendant, and added additional securities claim based on Section 14(a) of the Exchange Act and Rules 14a-3 and 14a-9. The Consolidated Amended Class Action Complaint, among other things, asserts that the Company's SEC filings over a multi-year period failed to disclose the alleged misconduct of the individual defendants and that disclosure of the alleged misconduct caused the Company's stock price to drop and, thereby harm the purported class of shareholders. The Class Period is alleged to be October 1, 2013 through February 23, 2018. The defendants filed a joint motion to dismiss the Consolidated Amended Class Action Complaint on September 17, 2018. Lead Plaintiff served their opposition on November 1, 2018 and the defendants filed their reply brief on November 27, 2018. Mediation took place on November 12, 2018 but did not result in a resolution. Liberty Tax, Inc., through its subsidiaries, provides tax preparation services in the United States and Canada. The company also facilitates refund-based tax settlement financial products, such as refund transfer products and personal income tax refund discounting, as well as provides an online digital Do-It-Yourself tax program in the United States. The company was formerly known as JTH Holding, Inc. and changed its name to Liberty Tax, Inc. in July 2014. Liberty Tax, Inc. was founded in 1996 and is headquartered in Virginia Beach, Virginia. LMB MORTGAGE: Sued by Pickett for Illegally Sending Advertisement ----------------------------------------------------------------- AMBER PICKETT, individually and on behalf of all others similarly situated v. LMB MORTGAGE SERVICES, INC., d/b/a LOWERMYBILLS.COM, Case No. 2:18-cv-09946 (C.D. Cal., November 28, 2018), arises from the illegal actions of LMB in transmitting SMS text message advertisements to the Plaintiff's cellular device and the cellular devices of millions of others across the country, without "prior express written consent" within the meaning of the Telephone Consumer Protection Act. LMB Mortgage Services, Inc., doing business as LowerMyBills.com, is a loan marketing and computerized matching company headquartered in Los Angeles, California.[BN] The Plaintiff is represented by: Frank S. Hedin, Esq. David W. Hall, Esq. HEDIN HALL LLP Four Embarcadero Center, Suite 1400 San Francisco, CA 94104 Telephone: (415) 766-3534 Facsimile: (415) 402-0058 E-mail: fhedin@hedinhall.com dhall@hedinhall.com LTD FINANCIAL: 11th Cir. Affirms Judgment in Baez FDCPA Suit ------------------------------------------------------------ In the case, LIZNELIA BAEZ, on behalf of herself and all others similarly situated, Plaintiff-Appellee, v. LTD FINANCIAL SERVICES, L.P., a Texas Corporation, Defendant-Appellant, Case No. 17-13842 (11th Cir.), the U.S. Court of Appeals for the Eleventh Circuit affirmed the district court's judgment in favor of Baez. Baez received a letter from LTD concerning credit-card debt that had been referred to LTD for collection. The letter explained, in part, that the law limits how long she can be sued on a debt and that because of the age of her account, she will not be sued. But the letter also made an offer to settle the debt for a reduced amount if Baez made a series of partial payments pursuant to a payment plan. Attached to the letter was a payment coupon that the recipient was to include with any partial payment made on her account. Baez brought a class-action suit alleging violations of the Fair Debt Collection Practices Act ("FDCPA"). In her complaint, she claimed that under Florida law, paying even a small amount on a time-barred debt could 'revive' the debt such that LTD could sue for the entire balance. Because LTD's collection letter failed to disclose that fact, Baez's theory went, the letter was misleading, unfair, and deceptive such that it ran afoul of the FDCPA. The trouble arose when, in her complaint, Baez seemed to conflate the two statutory provisions and assert that a partial payment, without more, could revive a time-barred debt. That's not quite right, as LTD points out. Even so, the record shows that LTD had timely notice, before trial began, both of the fact that Baez was proceeding under Section 95.04 and of Baez's theory of the case. Furthermore, LTD has to this date been unable to point to any prejudice that it suffered as a result of Baez's inartful pleading. When the district court denied LTD's pretrial motion for reconsideration of its order converting LTD's motion for judgment on the pleadings to a motion for summary judgment, the court held that Baez made a clear and consistent enunciation of her legal theory of liability from the beginning of her case under Section 95.04, notwithstanding her complaint's mistaken reference to a case under Section 95.051. In denying LTD's reconsideration motion, the district court noted that Section 95.04 underlay Baez's case and that both parties had relied on a line of Section 95.04 cases in their arguments at summary judgment. Addressing the same argument that the Appellate Court is now confronted with -- that Baez was traveling under an incorrect legal theory -- the court concluded that LTD's position was "untenable" and declined to enter summary judgment in its favor due to Baez's singular mis-citation of legal authority. LTD asks the Court to reverse a jury verdict rendered in favor of Baez. In essence, it contends that Baez's legal theory did not match the Florida law that underlay her federal FDCPA claim. First, the Appellate Court finds that the district court did not err when it denied LTD's motion for judgment on the pleadings, nor did it err when it converted that motion into a motion for summary judgment. Second, the district court did not err by giving the jury an accurate statement of Florida law in a jury instruction. Third, the district court also did not err in denying LTD's Rule 50 motion. Finally, LTD presents a number of contentions under the class-certification umbrella which the Court cannot say that the district court abused its discretion in certifying the class. In sum, the Court finds no basis for upsetting the jury's verdict. LTD had timely notice of both the applicable law and Baez's legal theory of the case, and it cannot point to any prejudice that it suffered as a result of any supposed mismatch between the applicable law and Baez's theory. It therefore affirmed the judgment of the district court. A full-text copy of the Court's Dec. 7, 2018 Order is available at https://is.gd/eeHomT from Leagle.com. Janet R. Varnell -- jvarnell@varnellandwarwick.com -- for Plaintiff-Appellee. Brian W. Warwick -- bwarwick@varnellandwarwick.com -- for Plaintiff-Appellee. Dale Thomas Golden -- dgolden@gsgfirm.com -- for Defendant-Appellant. Michael Tierney -- michael@tierneylaw.us -- for Plaintiff-Appellee. Joseph C. Proulx -- jproulx@gsgfirm.com -- for Defendant-Appellant. David Kevin Lietz -- dlietz@varnellandwarwick.com -- for Plaintiff-Appellee. LULULEMON ATHLETICA: Still Defends Gathmann-Landini Suit -------------------------------------------------------- lululemon athletica inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on December 6, 2018, for the quarterly period ended October 28, 2018, that the company continues to defend itself against a class action suit entitled, Rebecca Gathmann-Landini et al v. lululemon USA inc. On October 9, 2015, certain current and former hourly employees of the Company filed a class action lawsuit in the Supreme Court of New York entitled Rebecca Gathmann-Landini et al v. lululemon USA inc. On December 2, 2015, the case was moved to the United States District Court for the Eastern District of New York. The lawsuit alleges that the Company violated various New York labor codes by failing to pay all earned wages, including overtime compensation. The plaintiffs are seeking an unspecified amount of damages. The Company intends to vigorously defend this matter. No further updates were provided in the Company's SEC report. lululemon athletica inc., an athletic apparel company, together with its subsidiaries, designs, distributes, and retails athletic apparel and accessories for women, men, and female youth. It operates through two segments, Company-Operated Stores and Direct to Consumer. lululemon athletica inc. was founded in 1998 and is based in Vancouver, Canada. LVMH MOET HENNESSY: Faces Nixon ADA Class Action in NY ------------------------------------------------------ LVMH Moet Hennessy Louis Vuitton Inc. is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Donald Nixon, on behalf of himself and all others similarly situated, Plaintiff v. LVMH Moet Hennessy Louis Vuitton Inc., Defendant, Case No. 1:18-cv-06891 (E.D. N.Y., December 4, 2018). LVMH Moet Hennessy Louis Vuitton Inc. manufactures and markets luxury goods such as perfumes, jewelry, and leather goods. LVMH Moet Hennessy Louis Vuitton Inc. was incorporated in 1980 and is based in New York, New York. LVMH Moet Hennessy Louis Vuitton Inc. operates as a subsidiary of LVMH Moet Hennessy Louis Vuitton S.E.[BN] The Plaintiff is represented by: Jonathan Shalom, Esq. Shalom Law, PLLC. 124-04 Metropolitan Avenue Kew Gardens, NY 11374 Tel: (718) 971-9474 Email: jshalom@jonathanshalomlaw.com MARRIOTT INTERNATIONAL: Oakes Sues Over Stolen Personal info ------------------------------------------------------------ Luther B. Oakes, M.D., individually and as representatives of the class, Plaintiff, v. Marriott International Inc., and Starwoods Hotel and Resorts Worldwide, LLC, Defendants, Case No. 8:18-cv-03738-GLS (D. Md., December 4, 2018) seeks redress individually, and on behalf of those similarly-situated, for the injuries that he and class members sustained as a result of the defendants' negligent and intentional violations of law. This case is about one of the largest data security breaches in history, affecting millions of consumers who have booked hotel reservations with the defendants, Marriott and Starwood. As a result of this breach, plaintiff Oakes and the class members whose personal information was not safeguarded now face substantial risk of further injury from identity theft, credit and reputational injury, false tax claims, or even extortion, says the complaint. The data security breach, which was ongoing over a period of four-years, disclosed the personal information of approximately 500 million hotel guests from Starwood's guest reservation database. The information stolen in the breach includes names, mailing addresses, telephone numbers, email addresses, passport numbers, Starwood Preferred Guest account information, dates of birth, gender, arrival and departure information, reservation dates, and communication preferences. For some, the information also included payment card numbers and payment card expiration dates. As a result of the defendants' failure to protect its guests' sensitive information, Plaintiff Oakes and class members have been exposed to fraud, identity theft, and financial harm, and are subject to a heightened, imminent risk of such harm in the future, says the complaint. Plaintiff Oakes is a Mississippi citizen residing in Washington County, Mississippi. His personal information was compromised in the data breach after providing it to the defendants in connection with hotel stays at Marriott/Starwood properties. Marriott is a global lodging and hospitality company with more than 6,700 properties across 130 countries and territories, reporting revenues greater than $22 billion in fiscal year 2017. Marriott maintains hotel brands including Marriott, Courtyard, Fairfield, and Ritz-Carlton, among others. Marriott is incorporated in Delaware, with its principal place of business in Bethesda, Maryland. Starwood was acquired by Marriott in September 2016, and is Marriott's subsidiary. Starwood hotel brands include W, St. Regis, Sheraton, and Westin, among others. The Marriott-Starwood acquisition created the world's largest hotel conglomerate. Starwood is incorporated in Maryland, with its principal place of business in Stamford, Connecticut.[BN] The Plaintiff is represented by: Christopher T. Nace, Esq. PAULSON & NACE, PLLC 1025 Thomas Jefferson St. NW, Suite 810 Washington, DC 20007 Phone: (202) 851-9899 Fax: (202) 223-6824 Email: ctnace@paulsonandnace.com - and - W. Daniel "Dee" Miles, III, Esq. Archie I. Grubb, II, Esq. AndrewW E. Brashier, Esq. Leslie L. Pescia, Esq. BEASLEY, ALLEN, CROW, METHVIN, PORTIS & MILES, P.C. 218 Commerce Street Montgomery, AL 36104 Phone: (334) 269-2343 Fax: (334) 954-7555 Email: Dee.Miles@BeasleyAllen.com Archie.Grubb@BeasleyAllen.com Andrew.Brashier@BeasleyAllen.com Leslie.Pescia@BeasleyAllen.com - and - C.W. "Bill" Walker, III, Esq. C.W. Walker III, LLC 512 Main Street Greenville, MS 38702 Phone: (662) 580-0070 Fax: (662) 550-4773 Email: bill@bill-walker.com MARRIOTT INTERNATIONAL: Reynolds Sues Over Failure to Secure PII ---------------------------------------------------------------- Robert G. Reynolds, on behalf of himself and all others similarly situated, Plaintiff, v. Marriott International, Inc., Defendant Case No. 8:18-cv-03746-GJH (D. Md., December 5, 2018) is an action against Marriott for failure to secure and safeguard Plaintiff's information including the names, birthdates, addresses, locations, email addresses, payment card information and passport information, including passport numbers, collectively referred to herein as Personally Identifiable Information ("PII") that Marriott required customers to provide when they made reservations, checked-in to hotels, used one of its loyalty programs, or made purchases at dining or retail operations within its hotels. Marriott also failed to adequately notify Plaintiffs and Class members in a timely manner that their PII had been stolen. On November 30, 2018, Marriott announced that it had experienced a data breach due to a flaw in Marriott's reservation system and database systems dating back to 2014, which allowed hackers to access the guest reservation system and steal the PII of 500 million guests. For approximately 327 million of these guests, the information includes some combination of name, mailing address, phone number, email address, passport number, Starwood Preferred Guest account information, date of birth, gender, arrival and departure information, reservation date, and communication preferences. For some, the information also includes payment card numbers and payment card expiration dates. The risk of a data breach was reasonably foreseeable given that numerous other hotel chains in the hospitality industry, including Starwood on a previous occasion, have been the targets of data breaches. However, Marriott failed to take adequate and reasonable measures to secure customer PII collected in transactions and stored on its databases, says the complaint. Plaintiff Robert G. Reynolds is a resident and citizen of Pennsylvania. Plaintiff Reynolds has been a member of the Starwood Preferred Guest Program and stayed at Marriott properties and hotels for at least the last four years, entrusting Marriott with and aggregating PII for this time period. Marriott, Inc., is a corporation with its principal executive offices located at 10400 Fernwood Rd, Bethesda, Maryland 20817 (Montgomery County).[BN] The Plaintiff is represented by: Timothy F. Maloney, Esq. Steven M. Pavsner, Esq. JOSEPH GREENWALD &LAAKE, PA 6404 Ivy Lane, Suite 400 Greenbelt, MD 20770 Phone: 240-553-1211 Fax: 240-553-1735 Email: spavsner@jgllaw.com - and – Gary E. Mason, Esq. WHITFIELD BRYSON & MASON LLP 5101 Wisconsin Avenue NW, Suite 305 Washington, DC 20016 Phone: 202-640-1168 Fax: 202-429-2294 Email: Gmason@wbmllp.com - and – Jonathan Shub, Esq. Kevin Laukaitis, Esq. KOHN, SWIFT & GRAF, P.C. 1600 Market Street, Suite 2500 Philadelphia, PA 19103 Phone: 215-238-1700 Email: jshub@kohnswift.com klaukaitis@kohnswift.com - and – Charles E. Schaffer, Esq. LEVIN SEDRAN & BERMAN, LLP 510 Walnut Street, Suite 500 Philadelphia, PA 19106 Phone: 215-592-1500 Fax: 215-592-4663 Email: cschaffer@lfsblaw.com - and – Jeffrey S. Goldenberg, Esq. GOLDENBERG SCHNEIDER, LPA One West Fourth Street, 18th Floor Cincinnati, OH 45202 Phone: 513-345-8297 Fax: 513-345-8294 Email: jgoldenberg@gs-legal.com MATSU CORP: Zhu Moves for Class Certification and Notification -------------------------------------------------------------- The Plaintiff in the lawsuit entitled GUI ZHEN ZHU, on behalf of herself and others similarly situated v. MATSU CORP d/b/a Matsu, MATSU GRILL CO. LLC d/b/a Matsuri, KIMMING MARTY CHENG, and ZIQIAO CAO a/k/a Michael Cao, Case No. 3:18-cv-00203-CSH (D. Conn.), moves the Court for an order: (1) certifying this action as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure; (2) appointing Plaintiff Gui Zhen Zhu as class representative; (3) appointing Troy Law, PLLC, as class counsel; and (4) permitting the Plaintiff to circulate a class action notice to the class members by the method(s) laid out in the Plaintiff's Memorandum of Law.[CC] The Plaintiff is represented by: John Troy, Esq. TROY LAW, PLLC 41-25 Kissena Boulevard, Suite 119 Flushing, NY 11355 Telephone: (718) 762-1324 E-mail: troylaw@troypllc.com - and - Gary Phelan, Esq. MITCHELL & SHEAHAN, P.C. 80 Ferry Boulevard, Suite 216 Stratford, CT 06615 Telephone: (203) 873-0240 E-mail: gphelan@mitchellandsheahan.com MDL 2741: Calkins Suit v. Monsanto over Roundup Sales Consolidated ------------------------------------------------------------------ The class action lawsuit titled DENNIS CALKINS and MARY CALKINS, the Plaintiffs, v. MONSANTO COMPANY, Defendant, Case No. 4:18-cv-01828 (Filed Oct. 26, 2018), 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 Dec. 4, 2018. The Northern District of California Court Clerk assigned Case No. 3:18-cv-07318-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 Calkins 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 Telephone: (314) 222-2222 Facsimile: (314) 421-0359 E-mail: sethw@getbc.com MDL 2741: Monares Suit v. Monsanto over Roundup Sales Consolidated ------------------------------------------------------------------ The class action lawsuit titled ALFRED MONARES, the Plaintiffs, v. MONSANTO COMPANY, Defendant, Case No. 4:18-cv-01865 (Filed Oct. 31, 2018), 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 Dec. 4, 2018. The Northern District of California Court Clerk assigned Case No. 3:18-cv-07319-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 Monares 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: D. Todd Mathews, Esq. Joseph B. vCarnduff, 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 MDL 2741: Potter Suit v. Monsanto over Roundup Sales Consolidated ----------------------------------------------------------------- The class action lawsuit titled CATHERINE POTTER, the Plaintiffs, v. MONSANTO COMPANY, Defendant, Case No. 4:18-cv-01870 (Filed Nov.. 1, 2018), 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 Dec. 4, 2018. The Northern District of California Court Clerk assigned Case No. 3:18-cv-07320-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 Potter 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: D. Todd Mathews, Esq. Joseph B. vCarnduff, 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 MENARD INC: Class in Astarita FLSA Suit Conditionally Certified --------------------------------------------------------------- In the case, ALBERT J. ASTARITA, DIANA M. OWENS, Plaintiffs, v. MENARD, INC., Defendant, Case No. 5:17-06151-CV-RK (W.D. Mo.), Judge Roseann A. Ketchmark of the U.S. District Court for the Western District of Missouri. St. Joseph Division, granted Owens' Amended Motion for Conditional Certification of Class Claims Under 29 U.S.C. Section 216(b). Owens brings the collective action under the Fair Labor Standards Act ("FLSA") alleging that, pursuant to its company-wide policies and procedures, Menard failed to pay her and other similarly situated employees overtime for all hours worked over 40 in a single workweek. She challenges an unpaid training policy and procedure that Menard applied to all hourly, non-exempt employees who worked at its home improvement stores nationwide. Specifically, Menard failed to pay its employees for the time they spent participating in Menard's In-Home Training Program. Owens further alleges that Menard acted in willful violation of the FLSA. Owens seeks conditional certification of the class within the three-year period preceding a ruling on the Motion defined as all persons currently and formerly employed by Menard in hourly positions within the United States who participated in Menard's In-Home Training Program at any time during the last three years. Judge Ketchmark finds that at this stage of the litigation, Owens has established a colorable basis for her claim that the putative class members were the victims of a single decision, policy, or plan by Menard. Specifically, Owens' allegations and evidence indicate Menard may have implemented an unpaid training policy that uniformly results in certain hourly employees being paid for fewer hours than actually worked in violation of the FLSA. Therefore, the Judge conditionally certified the collective, under 29 U.S.C. Section 216(b), of all present and former hourly employees who worked or are working at Menard's retail home improvement stores and/or distribution centers throughout the United States at any time from Dec. 21, 2014 to the present, and participated in the In-Home Training Program without compensation, who worked 40 or more hours per workweek including any time spent in in-home training, and whose employment agreement does not contain a class or collective action waiver. Owens is appointed as the class representative and her counsel, McClelland Law Firm, as the class counsel. Within three days of the Order, Menard will provide Owens with the last known contact information for each member of the approximately 12,837 putative class members in a Microsoft Excel document. This list is identical to the list provided to the class counsel in Griffith, et al. v. Menard, Inc., Case No. 3:18-cv-02074, U.S. District Court, Northern District of Ohio, Western Division. Within 21 days of the Order, the Notice of Collective Action and Consent Form shall be mailed via first-class mail to all putative class members by Analytics Consulting, LLC, a third-party class action administrator retained by Owens' counsel. Finally, all Consent Forms must be returned by putative class members pursuant to the Notice of Collective Action within 45 days of the mailing date in order for them to participate in the action. MERCHANT FUNDING: Fabricant Suit Alleges TCPA Violation ------------------------------------------------------- Terry Fabricant, individually and on behalf of all others similarly situated v. Merchant Funding Solutions, LLC, and Does 1 through 10, Case No. 2:18-cv-09681 (C.D. Calif., November 16, 2018), is brought against the Defendants for violation of the Telephone Consumer Protection Act. The Plaintiff is seeking damages and any other available legal or equitable remedies resulting from the illegal actions of the Defendant, in negligently, knowingly, and/or willfully contacting the Plaintiff on Plaintiff's cellular telephone in violation of the TCPA and related regulations, specifically the National Do-Not-Call provisions, thereby invading Plaintiff's privacy. The Plaintiff, Terry Fabricant, is a natural person residing in Los Angeles, California. The Defendant Merchant Funding Solutions, LLC is a small business loan company. [BN] The Plaintiff is represented by: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. Meghan E. George, Esq. Tom E. Wheeler, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St., Suite 780 Woodland Hills, CA 91367 Tel: (323) 306-4234 Fax: (866) 633-0228 E-mail: tfriedman@toddflaw.com abacon@toddflaw.com mgeorge@toddflaw.com twheeler@toddflaw.com MEREDITH CORP: Nixon Files Suit under ADA in E.D. New York ---------------------------------------------------------- A class action lawsuit has been filed against Meredith Corp. The case is styled as Donald Nixon, on behalf of himself and all others similarly situated, Plaintiff v. Meredith Corp., Defendant, Case No. 1:18-cv-06917 (E.D. N.Y., December 5, 2018). The lawsuit arises under the Americans with Disabilities Act. Meredith Corporation is a diversified media company primarily focuses on publishing and broadcasting. The Company's publishing segment includes magazine and book publishing, marketing, interactive media, licensing, and other related operations. Meredith operates network-affiliated television stations and develops syndicated television programs.[BN] The Plaintiff is represented by: Jonathan Shalom, Esq. Shalom Law, PLLC. 124-04 Metropolitan Avenue Kew Gardens, NY 11374 Tel: (718) 971-9474 Email: jshalom@jonathanshalomlaw.com MGM RESORTS: Settlement in Hanson EFTA Suit Has Final Approval -------------------------------------------------------------- In the case, DAVID HANSON, individually and on behalf of the settlement class, Plaintiff, v. MGM RESORTS INTERNATIONAL, a Delaware corporation, and COSTCO WHOLESALE CORPORATION, a Delaware corporation, Defendants, Case No. 2:16-cv-01661 RAJ (W.D. Wash.), Judge Richard A. Jones of the U.S. District Court for the Western District of Washington, Seattle, granted (i) the Plaintiff's Motion and Memorandum of Law in Support of Motion for Reasonable Attorneys' Fees, Expenses, and Incentive Award, and (ii) the Plaintiff's Motion and Memorandum of Law in Support of Motion for Final Approval of Class Action Settlement. The Judge confirmed certification, for purposes of settlement only, of the Settlement Class pursuant to Federal Rule of Civil Procedure 23(b)(3), defined as all individuals in the United States who, from Oct. 24, 2010 to the date of Preliminary Approval of the settlement, purchased an MGM Gift Card and were assessed an inactivity fee that was deducted from the balance of funds remaining on the Gift Card. He finally approved the Settlement in all respects, and the Parties and their counsel are directed to implement and consummate the Settlement Agreement according to its terms and provisions. The Settlement Agreement is incorporated into the Final Judgment in full and will have the full force of an Order of the Court. The Judge dismissed the Litigation, as identified in the Settlement Agreement, on the merits and with prejudice. He adjudged that the payment of $37,500 in attorneys' fees and expenses in the amount of $1,666.53 is fair and reasonable. He further adjudged that the payment of an incentive award in the amount of $5,000. to Mr. Hanson to compensate him for his efforts and commitment on behalf of the Settlement Class is fair, reasonable, and justified under the circumstances of the case. Such payments will be made pursuant to and in the manner provided by the terms of the Settlement Agreement. Except as otherwise set forth in the Order, the Parties will bear their own costs and attorneys' fees. A full-text copy of the Court's Dec. 4, 2018 Final Judgment Order is available at https://is.gd/8aaIM5 from Leagle.com. David Hanson, individually and on behalf of all others similarly situated, Plaintiff, represented by Eve-Lynn Rapp -- erapp@edelson.com -- EDELSON PC, pro hac vice. David Hanson, Plaintiff, represented by Kevin Arnold Bay -- kbay@tousley.com -- TOUSLEY BRAIN STEPHENS, Kim D. Stephens -- kstephens@tousley.com -- TOUSLEY BRAIN STEPHENS & Stewart R. Pollock -- spollock@riker.com -- EDELSON PC, pro hac vice. MGM Resorts International, a Delaware corporation & Costco Wholesale Corporation, a Delaware corporation, Defendants, represented by Aravind Swaminathan -- aswaminathan@orrick.com -- ORRICK HERRINGTON & SUTCLIFFE LLP & Melanie D. Phillips -- mphillips@orrick.com -- ORRICK HERRINGTON & SUTCLIFFE LLP. MOBILOIL FEDERAL: Whittington Appeals Order in Overdraft Fee Suit ----------------------------------------------------------------- Plaintiff Jillian L. Whittington filed an appeal from a court ruling in the lawsuit styled Jillian Whittington v. Mobiloil Federal Credit Union, Case No. 1:16-CV-482, in the U.S. District Court for the Eastern District of Texas, Beaumont. As previously reported in the Class Action Reporter, the lawsuit alleges that Mobiloil Federal Credit Union manipulates transactions to "fleece" members of millions of dollars in overdraft fees. Mobiloil is a financial institution with more than 40,000 members and assets of $575 Million as of 2015. Mobiloil promotes itself as "Not for Profit, Not for Charity, but for Service," and provides this purported Service "by the latest technology." The lawsuit alleges that Mobiloil has used a corruption of such "latest technology" to fleece thousands of loyal customers out of millions of dollars through illicit Overdraft Fees. The appellate case is captioned as Jillian Whittington v. Mobiloil Federal Credit Union, Case No. 18-41101, in the U.S. Court of Appeals for the Fifth Circuit.[BN] Plaintiff-Appellant JILLIAN L. WHITTINGTON, individually and on behalf of all others similarly situated, is represented by: Jarrett L. Ellzey, Esq. William Craft Hughes, Esq. HUGHES ELLZEY, L.L.P. 2700 Post Oak Boulevard Houston, TX 77056 Telephone: (713) 322-6387 E-mail: jarrett@hughesellzey.com craft@hughesellzey.com Defendant-Appellee MOBILOIL FEDERAL CREDIT UNION is represented by: Andrew J. Demko, Esq. Stuart M. Richter, Esq. KATTEN MUCHIN ROSENMAN, L.L.P. 2029 Centru Park East Los Angeles, CA 90067 Telephone: (310) 788-4400 E-mail: andrew.demko@kattenlaw.com stuart.richter@kattenlaw.com - and - Emily Lauren Rochy, Esq. KATTEN MUCHIN ROSENMAN, L.L.P. 1301 McKinney Street Houston, TX 77001 Telephone: (713) 270-3446 E-mail: emily.rochy@kattenlaw.com MOMENTA PHARMA: Court Narrows Claims in Antitrust Suit ------------------------------------------------------ In the case, THE HOSPITAL AUTHORTIY OF METOPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE, d/b/a NASHVILLE GENERAL HOSPITAL and AMERICAN FEDERATION OF STATE, COUNTY AND MUNICPAL EMPLOYEES DISTRICT COUNCIL 37 HEALTH & SECURITY PLAN, Plaintiffs, v. MOMENTA PHARMACEUTICALS, INC. and SANDOZ INC., Defendants, Case No. 3:15-cv-01100 (M.D. Tenn.), Judge Waverly D. Crenshaw, Jr. of the U.S. District Court for the Middle District of Tennessee, Nashville Division, (i) granted Momenta and Sandoz's Motion to Dismiss for Lack of Jurisdiction Under Fed. R. Civ. P. 12(b)(2); (ii) denied their Motion to Dismiss for Lack of Jurisdiction Under Fed. R. Civ. P. 12(b)(1), and (iii) granted in part and denied in part their Motion to Dismiss for Failure to State a Claim Under Fed. R. Civ. P. 12(b)(6). Nashville General Hospital ("NGH") is a metropolitan charity hospital that purchases certain drugs it administers, including the generic anticoagulant enoxaparin. American Federation of State, County and Municipal Employees District Council 37 Health & Security Plan is a non-profit health and welfare benefit plan covering public sector employees, retirees and their families. The Plaintiffs allege that they have, and will continue to, indirectly purchase and/or provide reimbursement for Lovenox® and enoxaparin. On Oct. 14, 2015, NGH filed its initial complaint against the Defendants, alleging four separate counts under the Sherman Antitrust Act. It sought damages, as well as declaratory and injunctive relief. NGH brought its claims on behalf of itself and a nationwide class of persons and entities, pursuant to the Class Action Fairness Act of 2005 ("CAFA") and Fed. R. Civ. P. 23(a) and (b). The alleged Sherman Act violations centered on the role that the Defendants played in a conspiracy to monopolize the production and distribution of enoxaparin, a generic version of the drug Lovenox®. In response to the complaint, the Defendants filed a motion to transfer the case to the District of Massachusetts and a motion to dismiss. Momenta additionally filed a separate motion to dismiss or transfer for improper venue. On Sept. 29, 2016, Magistrate Judge Barbara Holmes entered a Report and Recommendation recommending that the motions be denied. The Defendants filed joint and separate objections to the Report and Recommendation. On March 21, 2017, the Court issued a Memorandum Opinion that adopted in part and declined to adopt in part the Report and Recommendation. It dismissed NGH's Sherman Act claims, to the extent that NGH sought damages in connection with those claims. It found that NGH did not have standing to seek damages for its Sherman Act claims under the indirect purchaser rule. However, NGH's Sherman Act claims were permitted to proceed on declaratory and injunctive theories of relief. Thereafter, NGH filed a motion for leave to file an amended complaint. The amended complaint contained three primary changes: (1) the addition of DC 37 as a new representative Plaintiff; (2) the addition of various state antitrust and consumer protection claims; and (3) the addition of new substantive allegations pertaining to the Defendants' alleged anticompetitive conduct. The Defendants filed a response in opposition. Ultimately, Magistrate Judge Holmes granted the Plaintiffs' motion for leave to file an amended complaint, and the Plaintiffs filed their amended complaint on Dec. 21, 2017. The Defendants then filed the instant motions to dismiss. The Defendants first filed a Motion to Dismiss Under Federal Rule of Civil Procedure 12(b)(1) (Lack of Subject Matter Jurisdiction). Their primary argument is that the Plaintiffs lack Article III standing to pursue their Sherman Act claims for injunctive and declaratory relief. Judge Crenshaw concludes that Plaintiffs have not made a sufficient threshold demonstration that they have Article III standing to pursue their Sherman Act claims for injunctive and declaratory relief. To be sure, the Plaintiffs have detailed a host of factual allegations regarding prior injuries that the Defendants have allegedly inflicted. However, these prior injuries are insufficient to demonstrate the threat of an impending future injury. Accordingly, because their theory of prospective harm relies on a string of actions, the occurrence of any of which is speculative, their Sherman Act claims do not reach the level of imminency required to confer standing on a plaintiff seeking injunctive and declaratory relief in federal court. The Judge will grant the Defendants' Rule 12(b)(1) motion to dismiss, and the Plaintiffs' Sherman Acts claims will be dismissed. In their second motion to dismiss, the Defendants contend that the Court lacks personal jurisdiction over them regarding the Plaintiffs' remaining state law claims. The Judge finds that the Defendants' activities with regard to sales of generic enoxaparin have allegedly damaged the Plaintiffs, including within Tennessee, and, therefore, the Plaintiffs may bring not only their Tennessee claims, but their various other state law claims as well. He therefore concludes that the Court has specific personal jurisdiction over the Defendants regarding the Plaintiffs' remaining state law claims. Accordingly, he will deny the Defendants' Rule 12(b)(2) motion to dismiss the Amended Complaint for lack of personal jurisdiction. The Defendants' final motion to dismiss, pursuant to Rule 12(b)(6), advances a host of arguments, all of which are aimed at the Plaintiffs' various state law claims. The Judge finds that because the Plaintiffs allege that the Defendants wrongfully sold them enoxaparin at supracompetitive prices until at least 2014, and each sale restarted the five year statute of limitations, the continuing violation doctrine extended the statute of limitations period. The Plaintiffs' state law claims are timely. He also finds that waiting until the class certification stage will enable the Court to most properly analyze complex issues of standing. Accordingly, he will defer deciding whether the Plaintiffs have standing to assert their various state law claims until the class certification stage. He will also not decide the statutory standing issue with regard to the Plaintiffs' Massachusetts, Missouri, Montana, and Vermont consumer protection claims, as the Defendants' argument again centers on whether the Plaintiffs' have standing to pursue those claims. Accordingly, the Judge will not dismiss said claims at this juncture. Next, he finds that the Plaintiffs' set forth facts sufficient at the pleading stage, identifying the relevant jurisdictions and the effect on competition in each of these jurisdictions, to allege the requisite intrastate effects. For these same reasons, the Plaintiffs' intrastate nexus allegations are also sufficient to state a claim under the consumer protection statutes of California, New York, and North Carolina. Finally, he finds that because the Plaintiffs did not plead absence of a legal remedy, their unjust enrichment claims under the laws of Arizona, Hawaii, Massachusetts, Minnesota, and Tennessee will be dismissed. Moreover, with regard to the Plaintiffs' California unjust enrichment claim, California does not recognize unjust enrichment, and, therefore, the claim is also dismissed. For the foregoing reasons, Judge Crenshaw (i) denied the Defendants' Motion to Dismiss for Lack of Jurisdiction Under Fed. R. Civ. P. 12(b)(2) (Lack of Personal Jurisdiction); (ii) granted the Defendants' Motion to Dismiss for Lack of Jurisdiction Under Fed. R. Civ. P. 12(b)(1) (Lack of Subject-Matter Jurisdiction) will be granted; and (iii) granted in part and denied in part the Defendants' Motion to Dismiss for Failure to State a Claim Under Fed. R. Civ. P. 12(b)(6). The case will proceed on the remaining state law claims. An appropriate order will enter. A full-text copy of the Court's Dec. 5, 2018 Memorandum Opinion is available at https://is.gd/5CBRsw from Leagle.com. The Hospital Authority of Metropolitan Government of Nashville and Davidson County, Tennessee, doing business as Nashville General Hospital, Plaintiff, represented by Adam Gitlin , Lieff, Cabraser, Heimann & Bernstein, LLP, Brendan P. Glackin -- bglackin@lchb.com -- Lieff, Cabraser, Heimann & Bernstein, LLP, Bruce W. Leppla -- bleppla@lchb.com -- Lieff, Cabraser, Heimann & Bernstein, LLP, Dean M. Harvey -- dharvey@lchb.com -- Lieff, Cabraser, Heimann & Bernstein, LLP, John Tate Spragens -- jspragens@lchb.com -- Lieff, Cabraser, Heimann & Bernstein, LLP, Katherine C. Lubin -- klubin@lchb.com -- Lieff, Cabraser, Heimann & Bernstein, LLP & Mark P. Chalos -- mchalos@lchb.com -- Lieff, Cabraser, Heimann & Bernstein, LLP. American Federation of State, County and Municipal Employees District Council 37 Health & Security Plan, Plaintiff, represented by Adam Gitlin -- agitlin@lchb.com -- Lieff, Cabraser, Heimann & Bernstein, LLP, John Tate Spragens -- jspragens@lchb.com -- Lieff, Cabraser, Heimann & Bernstein, LLP, Katherine C. Lubin -- kbenson@lchb.com -- Lieff, Cabraser, Heimann & Bernstein, LLP & Brendan P. Glackin -- bglackin@lchb.com -- Lieff, Cabraser, Heimann & Bernstein, LLP. Momenta Pharmaceuticals, Inc., Defendant, represented by Bradley D. Justus -- bjustus@axinn.com -- Axinn, Veltrop & Harkrider, LLP, Daniel K. Oakes -- doakes@axinn.com -- Axinn, Veltrop & Harkrider, LLP, Jason T. Murata -- jmurata@axinn.com --, Axinn, Veltrop & Harkrider, LLP, Jeremy Lowe -- jlowe@axinn.com -- Axinn, Veltrop & Harkrider, LLP, Michael L. Keeley -- mkeeley@axinn.com -- Axinn, Veltrop & Harkrider, LLP, Richard B. Dagen -- rdagen@axinn.com -- Axinn, Veltrop & Harkrider, LLP, Robert Dale Grimes -- dgrimes@bassberry.com -- Bass, Berry & Sims, Thomas Rohback -- trohback@axinn.com -- Axinn, Veltrop & Harkrider, LLP & Virginia M. Yetter, Bass, Berry & Sims. Sandoz, Inc., Defendant, represented by Andrew Hatchett -- andrew.hatchett@alston.com -- Alston & Bird LLP, Liz Broadway Brown -- liz.brown@alston.com -- Alston & Bird LLP, Matthew Kent -- matthew.kent@alston.com -- Alston & Bird LLP, Michael P. Kenny -- mike.kenny@alston.com -- Alston & Bird LLP, Teresa T. Bonder -- teresa.bonder@alston.com -- Alston & Bird LLP & Timothy L. Warnock -- twarnock@rwjplc.com -- Riley, Warnock & Jacobson. Fresenius Kabi USA, LLC, Interested Party, represented by Jeffrey W. Melcher -- jeffrey.melcher@wilsonelser.com -- Wilson, Elser, Moskowitz, Edelman & Dicker, LLP. MONSANTO COMPANY: Nash-Boulden Sues over Sale of Herbicide Roundup ------------------------------------------------------------------ STEPHEN STANLEY NASH-BOULDEN, the Plaintiffs, v. MONSANTO COMPANY, the Defendant, Case No. 4:18-cv-02028 (E.D. Mo., Dec. 5, 2018), seeks to recover damages suffered by Plaintiffs, as a direct and proximate result of the Defendant's negligent and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, advertising, distribution, labeling, and/or sale of the herbicide Roundup (TM), containing the active ingredient glyphosate. The Plaintiffs maintain that Roundup (TM) and/or glyphosate is defective, dangerous to human health, unfit and unsuitable to be marketed and sold in commerce, and lacked proper warnings and directions as to the dangers associated with its use. The Plaintiffs' injuries, like those striking thousands of similarly situated victims across the country, were avoidable. The Plaintiffs bring this action for personal injuries sustained by exposure to Roundup (TM), which contains the active ingredient glyphosate and the surfactant polyethoxylated tallow amine (POEA). As a direct and proximate result of being exposed to Roundup, the Plaintiff developed diffuse Non-Hodgkin's Lymphoma. Roundup refers to all formulations of Defendant's Roundup products, including, but not limited to, Roundup Concentrate Poison Ivy and Tough Brush Killer 1, Roundup Custom Herbicide, Roundup D-Pak Herbicide, Roundup Dry Concentrate, Roundup Export Herbicide, Roundup Fence & Hard Edger 1, Roundup Garden Foam Weed & Grass Killer, Roundup Grass and Weed Killer, Roundup Herbicide, Roundup Original 2k Herbicide, Roundup Original II Herbicide, Roundup Pro Concentrate, Roundup Pro Dry Herbicide, and Roundup Promax.[BN] The Plaintiffs are represented by: D. Todd Mathews, Esq. Joseph B. Carnduff, Esq. 156 N. Main St. Edwardsville, IL 62025 Telephone (618) 659-9833 Facsimile (618) 659-9834 E-mail: todd@gorijulianlaw.com jcarnduff@gorijulianlaw.com MONSANTO COMPANY: Ploof Sues over Sale of Herbicide Roundup ----------------------------------------------------------- MICHAEL PLOOF, the Plaintiffs, v. MONSANTO COMPANY, the Defendant, Case No. 4:18-cv-02029 (E.D. Mo., Dec. 5, 2018), seeks to recover damages suffered by Plaintiffs, as a direct and proximate result of the Defendant's negligent and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, advertising, distribution, labeling, and/or sale of the herbicide Roundup (TM), containing the active ingredient glyphosate. The Plaintiffs maintain that Roundup (TM) and/or glyphosate is defective, dangerous to human health, unfit and unsuitable to be marketed and sold in commerce, and lacked proper warnings and directions as to the dangers associated with its use. The Plaintiffs' injuries, like those striking thousands of similarly situated victims across the country, were avoidable. The Plaintiffs bring this action for personal injuries sustained by exposure to Roundup (TM), which contains the active ingredient glyphosate and the surfactant polyethoxylated tallow amine (POEA). As a direct and proximate result of being exposed to Roundup, the Plaintiff developed diffuse Non-Hodgkin's Lymphoma. Roundup refers to all formulations of Defendant's Roundup products, including, but not limited to, Roundup Concentrate Poison Ivy and Tough Brush Killer 1, Roundup Custom Herbicide, Roundup D-Pak Herbicide, Roundup Dry Concentrate, Roundup Export Herbicide, Roundup Fence & Hard Edger 1, Roundup Garden Foam Weed & Grass Killer, Roundup Grass and Weed Killer, Roundup Herbicide, Roundup Original 2k Herbicide, Roundup Original II Herbicide, Roundup Pro Concentrate, Roundup Pro Dry Herbicide, and Roundup Promax.[BN] The Plaintiffs are represented by: D. Todd Mathews, Esq. Joseph B. Carnduff, Esq. 156 N. Main St. Edwardsville, IL 62025 Telephone (618) 659-9833 Facsimile (618) 659-9834 E-mail: todd@gorijulianlaw.com jcarnduff@gorijulianlaw.com MONSANTO COMPANY: Shapiros Sue over Sale of Herbicide Roundup ------------------------------------------------------------- JEFFREY B. SHAPIRO and DEBORA SHAPIRO, the Plaintiffs, v. MONSANTO COMPANY, the Defendant, Case No. 4:18-cv-02030 (E.D. Mo., Dec. 5, 2018), seeks to recover damages suffered by Plaintiffs, as a direct and proximate result of the Defendant's negligent and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, advertising, distribution, labeling, and/or sale of the herbicide Roundup (TM), containing the active ingredient glyphosate. The Plaintiffs maintain that Roundup (TM) and/or glyphosate is defective, dangerous to human health, unfit and unsuitable to be marketed and sold in commerce, and lacked proper warnings and directions as to the dangers associated with its use. The Plaintiffs' injuries, like those striking thousands of similarly situated victims across the country, were avoidable. The Plaintiffs bring this action for personal injuries sustained by exposure to Roundup (TM), which contains the active ingredient glyphosate and the surfactant polyethoxylated tallow amine (POEA). As a direct and proximate result of being exposed to Roundup, the Plaintiff developed diffuse Non-Hodgkin's Lymphoma. Roundup refers to all formulations of Defendant's Roundup products, including, but not limited to, Roundup Concentrate Poison Ivy and Tough Brush Killer 1, Roundup Custom Herbicide, Roundup D-Pak Herbicide, Roundup Dry Concentrate, Roundup Export Herbicide, Roundup Fence & Hard Edger 1, Roundup Garden Foam Weed & Grass Killer, Roundup Grass and Weed Killer, Roundup Herbicide, Roundup Original 2k Herbicide, Roundup Original II Herbicide, Roundup Pro Concentrate, Roundup Pro Dry Herbicide, and Roundup Promax.[BN] The Plaintiffs are represented by: Seth S. Webb, Esq. BROWN & CROUPPEN, P.C. 211 North Broadway, Suite 1600 St. Louis, MO 63102 Telephone: (314) 222-2222 Facsimile: (314) 421-0359 E-mail: sethw@getbc.com MOTHERISK: Court Upholds Dismissal of Hair Test Class Action ------------------------------------------------------------ Rachel Mendleson, writing for Toronto Star, reports that despite the "knee-jerk denials" of Motherisk experts and the Hospital for Sick Children, it wouldn't be hard to prove in court that the lab's drug and alcohol hair tests were broadly unreliable. However, establishing this fact wouldn't advance individual cases enough to make a national class-action lawsuit the right approach for thousands of families seeking compensation. That is the finding of a Toronto Divisional Court, which has upheld the decision of a Superior Court judge not to certify the class-action lawsuit because of the highly individualistic nature of the claims by those who say they lost their children or were wrongly convicted due to the flawed testing. "In this case, the class members were not harmed by the tests being systemically unreliable. Rather, only class members who can show that they received a false test result and that the false test result caused them to suffer an adverse outcome in legal proceedings will have compensable claims," Justice Fred Myers wrote in a unanimous decision, which makes clear that Motherisk victims face a "very difficult" road. But the battle is not over for the plaintiff, a Toronto mother who claims access to her son was limited for several years because of Motherisk's faulty testing. The testing was deemed "inadequate and unreliable" for use in court from 2005 to 2015 in a government-commissioned review by retired judge Susan Lang, following a Star investigation. "The people who were harmed by the Motherisk laboratory deserved better than this," said the plaintiff's lawyer, Kirk Baert. "This isn't the last word by any means. We will be seeking leave to appeal to the Ontario Court of Appeal and I am confident we will obtain it." Sick Kids made millions from Motherisk's hair tests, which were used for decades in a handful of criminal cases and thousands of child protection cases, primarily by child welfare agencies as proof of parental substance abuse. In many of these cases, satisfying the criteria for compensation the Divisional Court has outlined will be challenging, because Motherisk did not follow proper chain-of-custody procedures and did not have a records retention policy from 2005 to 2010. [GN] MOUNT IDA: Former Students File Privacy Violation Class Action -------------------------------------------------------------- Michael P. Norton, writing for State House News Service, reports that before its sudden April 6 announcement that it would be sold to UMass Amherst, Mount Ida College illegally provided sensitive student information to the University of Massachusetts Dartmouth, according to a new federal lawsuit against the closed institution and its former overseers. Higher education philanthropist Bob Hildreth is funding the lawsuit, which alleges fraud, negligent representation and violations of the Massachusetts Right of Privacy Act and the federal Family Educational Rights and Privacy Act. The suit is seeking $40 million. "The sudden closure of Mount Ida deprived enrolled and prospective students of their ability to meaningfully consider alternate schools, and Mount Ida knew this," according to the lawsuit. "It was exactly when the students were most vulnerable when Mount Ida released its students' private information to UMass Dartmouth, allowing UMass Dartmouth to approach each individual student armed with knowledge of their specific finances, grades, awards, and majors. In effect, Mount Ida sold its students, at a discount, to UMass Dartmouth, as an incentive in the land transaction." One of the plaintiffs, Madeline McClain of New Jersey, said she was accepted to six different colleges but chose Mount Ida because of its veterinary curriculum and its offer of a "near 100 percent tuition-free education." She learned on April 5 that Admitted Students Day had been cancelled and soon found out the school was closing. "I had nowhere to go because most of the schools I was accepted to had either closed our their acceptances or had little to no money to award any financial aid," she said in a statement on Nov. 26. In a statement, Mount Ida and its Board of Trustees said: The allegations by three former students, which rely upon incorrect information published erroneously in old media stories and statements twisted out of context, are meritless and will be vigorously defended by the College, its former officers, and its trustees, all of whom worked compassionately and tirelessly to provide realistic transition opportunities for all students following the College's closure, and fully cooperated with the Attorney General's investigation. [GN] NATIONWIDE CREDIT: Chung Files Consumer Credit Class Suit --------------------------------------------------------- A class action lawsuit has been filed against Nationwide Credit, Inc. The case is styled as Andrew Chung, individually and on behalf of all others similarly situated, Plaintiff v. Nationwide Credit, Inc., Defendant, Case No. 2:18-cv-06904 (E.D. N.Y., December 4, 2018). The docket of the case states the nature of suit as Consumer Credit filed pursuant to Fair Debt Collection Practices Act. Nationwide Credit, Inc., a collection agency, provides customer relationship and accounts receivable management services. The company specializes in collecting delinquent and defaulted accounts. Its customer relationship management services include inbound/outbound customer care and back office services; and accounts receivable management services comprise pre charge-off collections, post charge-off recoveries, charge-off mortgage collections, and an attorney network. Nationwide Credit serves customers in automotive, banking and credit card, healthcare, insurance, mortgage, retail, telecommunication, and utilities industries worldwide.[BN] The Plaintiff is represented by: Craig B. Sanders, Esq. Sanders Law, PLLC 100 Garden City Plaza, Suite 500 Garden City, NY 11530 Tel: (516) 203-7600 Fax: (516) 281-7601 Email: csanders@sanderslawpllc.com NATURAL LIVING: Yates Files Class Action for Fraud -------------------------------------------------- Natural Living, Inc. is facing a class action lawsuit filed for fraud. The case is styled as Rebecca Yates, individually and on behalf of all others similarly situated, Plaintiff v. California Natural Living, Inc., Defendant, Case No. 1:18-cv-01415-GLS-TWD (N.D. N.Y., December 5, 2018). Natural Living, Inc., a specialty pharmaceutical provider, manufactures and distributes herbal pharmaceutical products. The company is based in Bronx, New York. As of 02/02/2004, Natural Living, Inc. is a subsidiary of BioScrip Inc.[BN] The Plaintiff is represented by: Philip Lawrence Fraietta, Esq. Bursor & Fisher, P.A.-NY Office 888 Seventh Avenue New York, NY 10019 Tel: (646) 837-7150 Email: pfraietta@bursor.com NCAA: Faces Concussion Class Action in Indiana ---------------------------------------------- Ryan Boysen, writing for Law360, reports that the National Collegiate Athletic Association and its Missouri Valley Conference have been hit with a proposed concussion class action in Indiana federal court claiming the organizations "sacrificed player safety." [GN] NEIMAN MARCUS: Continues to Defend Lopez Class Action ----------------------------------------------------- Neiman Marcus Group LTD LLC said in its Form 10-Q Report filed with the Securities and Exchange Commission on December 6, 2018, for the quarterly period ended October 27, 2018, that the company continues to defend a putative class action lawsuit by Victor Lopez. On October 27, 2017, a putative class action complaint was filed against Neiman Marcus Group, Inc., The Neiman Marcus Group LLC, and Bergdorf Goodman, Inc. in the U.S. District Court for the Southern District of New York by Victor Lopez, an allegedly visually-impaired and legally blind individual, in connection with his visits to Bergdorf Goodman, Inc.'s website. Mr. Lopez alleges, on behalf of himself and those similarly situated, that Bergdorf Goodman, Inc.'s website is not fully and equally accessible to legally blind individuals, resulting in denial of access to the equal enjoyment of goods and services, in violation of the Americans with Disabilities Act and the New York State and City Human Rights Laws. The defendant Companies have filed a joint answer denying the claims. Neiman Marcus Group LTD LLC operates as a luxury omni-channel retailer. It sells its products through stores and online sales channels under the Neiman Marcus, Bergdorf Goodman, MyTheresa, Last Call, and Horchow brand names. The company is headquartered in Dallas, Texas. Neiman Marcus Group LTD LLC is a subsidiary of Mariposa Intermediate Holdings Llc. NEIMAN MARCUS: Cyber-Attack Class Suits Ongoing ----------------------------------------------- Neiman Marcus Group LTD LLC said in its Form 10-Q Report filed with the Securities and Exchange Commission on December 6, 2018, for the quarterly period ended October 27, 2018, that the company continues to defend against the Cyber-Attack Class Actions Litigation. In January 2014, three class actions relating to a cyber-attack on the company's computer systems in 2013 (the "Cyber-Attack") were filed and later voluntarily dismissed by the plaintiffs between February and April 2014. The plaintiffs had alleged negligence and other claims in connection with their purchases by payment cards and sought monetary and injunctive relief. Three additional putative class actions relating to the Cyber-Attack were filed in March and April 2014, also alleging negligence and other claims in connection with plaintiffs' purchases by payment cards. Two of the cases were voluntarily dismissed. The third case, Hilary Remijas v. The Neiman Marcus Group, LLC, was filed on March 12, 2014 in the U.S. District Court for the Northern District of Illinois. On June 2, 2014, an amended complaint in the Remijas case was filed, which added three plaintiffs (Debbie Farnoush and Joanne Kao, California residents; and Melissa Frank, a New York resident) and asserted claims for negligence, implied contract, unjust enrichment, violation of various consumer protection statutes, invasion of privacy and violation of state data breach laws. The Company moved to dismiss the Remijas amended complaint, and the court granted the Company's motion on the grounds that the plaintiffs lacked standing due to their failure to demonstrate an actionable injury. Plaintiffs appealed the district court's order dismissing the case to the Seventh Circuit Court of Appeals, and the Seventh Circuit Court of Appeals reversed the district court's ruling, remanding the case back to the district court. The Company filed a petition for rehearing en banc, which the Seventh Circuit Court of Appeals denied. The Company filed a motion for dismissal on other grounds, which the court denied. The parties jointly requested, and the court granted, an extension of time for filing a responsive pleading, which was due on December 28, 2016. On February 9, 2017, the court denied the parties' request for another extension of time, dismissed the case without prejudice, and stated that plaintiffs could file a motion to reinstate. On March 8, 2017, plaintiffs filed a motion to reinstate, which the court granted on March 16, 2017. On March 17, 2017, plaintiffs filed a motion seeking preliminary approval of a class action settlement resolving this action, which the court granted on June 21, 2017. On August 21, 2017, plaintiffs moved for final approval of the proposed settlement. In September 2017, purported settlement class members filed two objections to the settlement, and plaintiffs and the Company filed responses to the objections on October 19, 2017. At the fairness hearing on October 26, 2017, the Court ordered supplemental briefing on the objections. Objectors filed a supplemental brief in support of their objections on November 9, 2017, and plaintiffs and the Company filed their supplemental responses to the objections on November 21, 2017. On January 16, 2018, an order was issued by the District Court reassigning the case to Judge Sharon Johnson Coleman due to the prior judge's retirement. On September 17, 2018, Judge Coleman denied final approval of the proposed settlement and decertified the settlement class. Judge Coleman has set a status conference for this matter for December 10, 2018. Neiman Marcus said, "At this point, we are unable to predict the developments in, outcome of or other consequences related to this matter." Neiman Marcus Group LTD LLC operates as a luxury omni-channel retailer. It sells its products through stores and online sales channels under the Neiman Marcus, Bergdorf Goodman, MyTheresa, Last Call, and Horchow brand names. The company is headquartered in Dallas, Texas. Neiman Marcus Group LTD LLC is a subsidiary of Mariposa Intermediate Holdings Llc. NEIMAN MARCUS: Final Approval Hearing on Attia Settlement in Feb. ----------------------------------------------------------------- Neiman Marcus Group LTD LLC said in its Form 10-Q Report filed with the Securities and Exchange Commission on December 6, 2018, for the quarterly period ended October 27, 2018, that the final approval hearing in the class action suit initated by Holly Attia, is scheduled for February 25, 2019. The Company has several wage and hour putative class action matters pending in California. The earliest, filed in December 2015 and amended in February 2016, was filed against The Neiman Marcus Group, Inc. by Holly Attia and seven other named plaintiffs, seeking to certify a class of non-exempt employees for alleged violations for failure to pay overtime wages, failure to provide meal and rest breaks, failure to reimburse business expenses, failure to timely pay wages due at termination and failure to provide accurate itemized wage statements. Plaintiffs also allege derivative claims for restitution under California unfair competition law and a representative claim for penalties under the California Labor Code Private Attorneys General Act ("PAGA"), and all related damages for alleged violations (restitution, statutory penalties under PAGA, and attorneys' fees, interest and costs of suit). The case was removed to the U.S. District Court for the Central District of California in March 2016, and the Company filed a motion to compel arbitration and requested to stay the PAGA claim. In June 2016, the court granted the motion and compelled arbitration of the individual claims. The court retained jurisdiction of the PAGA claim and stayed that claim pending the outcome of arbitration. In October 2016, the court granted the plaintiffs' motion for reconsideration of the arbitration decision based on a recent decision by the Ninth Circuit Court of Appeals in Morris v. Ernst & Young, LLP, and reversed its order compelling arbitration. The Company appealed. The parties reached an agreement in principle to settle this case, subject to court approval. The motion for preliminary approval of the settlement was filed with the court on July 24, 2018. On September 5, 2018, the district court preliminarily approved the settlement, and the final approval hearing is scheduled for February 25, 2019. The associated appeal has been administratively closed due to the pending settlement of the underlying action. A PAGA representative action filed by Xuan Hien Nguyen asserting the same factual allegations as the plaintiff in Attia will be resolved in connection with the Attia settlement, as Nguyen and her claims have been amended into Attia. A PAGA representative action filed by Milca Connolly asserting substantially identical claims and a putative class and representative action filed by Ondrea Roces and Sophia Ahmed seeking to certify a class of current and former sales associates for alleged failure to pay wages for all hours worked, recordkeeping and wage statement violations, and failure to timely pay wages due at termination have been stayed pending the settlement approval process in Attia. Neiman Marcus Group LTD LLC operates as a luxury omni-channel retailer. It sells its products through stores and online sales channels under the Neiman Marcus, Bergdorf Goodman, MyTheresa, Last Call, and Horchow brand names. The company is headquartered in Dallas, Texas. Neiman Marcus Group LTD LLC is a subsidiary of Mariposa Intermediate Holdings Llc. NEIMAN MARCUS: NLRB Proceedings Over Class Action Waiver Ongoing ---------------------------------------------------------------- Neiman Marcus Group LTD LLC said in its Form 10-Q Report filed with the Securities and Exchange Commission on December 6, 2018, for the quarterly period ended October 27, 2018, that the remanded portion of the case related to the Company's Arbitration Agreement and class action waiver is still pending before the National Labor Relations Board. In August 2015, the National Labor Relations Board ("NLRB") affirmed an administrative law judge's recommended decision and order finding that the Company's Arbitration Agreement and class action waiver violated the National Labor Relations Act ("NLRA"). The company filed its petition for review of the NLRB's order with the U.S. Court of Appeals for the Fifth Circuit. This case has been stayed while another similar case has been pending before the U.S. Supreme Court, which was decided on May 21, 2018 and held that class action waivers in arbitration agreements are lawful under the NLRA and must be enforced under the Federal Arbitration Act. On June 1, 2018, the NLRB filed a motion to remove this case from abeyance, grant the company's petition for review regarding the class action waiver issue consistent with the U.S. Supreme Court's decision, and remand the remainder of the case to the NLRB. On June 11, 2018, the U.S. Court of Appeals for the Fifth Circuit granted the NLRB's motion, and the remanded portion of the case is pending before the NLRB. No further updates were provided in the Company's SEC report. Neiman Marcus Group LTD LLC operates as a luxury omni-channel retailer. It sells its products through stores and online sales channels under the Neiman Marcus, Bergdorf Goodman, MyTheresa, Last Call, and Horchow brand names. The company is headquartered in Dallas, Texas. Neiman Marcus Group LTD LLC is a subsidiary of Mariposa Intermediate Holdings Llc. NEIMAN MARCUS: Plan Beneficiary's Suit Dismissed ------------------------------------------------ Neiman Marcus Group LTD LLC said in its Form 10-Q Report filed with the Securities and Exchange Commission on December 6, 2018, for the quarterly period ended October 27, 2018, that the court has dismissed a plan beneficiary's claims with prejudice and the claims of the putative class members without prejudice. On October 24, 2017, a putative class action complaint was filed against The Neiman Marcus Group LLC and the Company's Health and Welfare Benefit Plan in the U.S. District Court for the Western District of Washington by a plan beneficiary alleging violations of the Federal Mental Health Parity Act and the Affordable Care Act through the Employment Retirement Income Security Act of 1974 ("ERISA") in connection with the alleged failure to cover particular treatments for developmental health conditions. The parties have agreed to a settlement with the named plaintiffs, in which they have agreed not to pursue their class claims. On November 6, 2018, the court dismissed the named plaintiffs' claims with prejudice and the claims of the putative class members without prejudice. Neiman Marcus Group LTD LLC operates as a luxury omni-channel retailer. It sells its products through stores and online sales channels under the Neiman Marcus, Bergdorf Goodman, MyTheresa, Last Call, and Horchow brand names. The company is headquartered in Dallas, Texas. Neiman Marcus Group LTD LLC is a subsidiary of Mariposa Intermediate Holdings LLC. NEIMAN MARCUS: Settlement in Rubenstein Suit Already Final ---------------------------------------------------------- Neiman Marcus Group LTD LLC said in its Form 10-Q Report filed with the Securities and Exchange Commission on December 6, 2018, for the quarterly period ended October 27, 2018, that the deadline to appeal the judgment expired with no appeals, and thus the settlement in the putative class action suit filed by Linda Rubenstein is final. On August 7, 2014, a putative class action complaint was filed against The Neiman Marcus Group LLC in Los Angeles County Superior Court by a customer, Linda Rubenstein, in connection with the Company's Last Call stores in California. Ms. Rubenstein alleges that the Company has violated various California consumer protection statutes by implementing a marketing and pricing strategy that suggests that clothing sold at Last Call stores in California was originally offered for sale at full-line Neiman Marcus stores when allegedly, it was not, and that the Company lacks adequate information to support its comparative pricing labels. In September 2014, the company removed the case to the U.S. District Court for the Central District of California. After dismissing Ms. Rubenstein's original and first amended complaint, the court dismissed her second amended complaint in its entirety in May 2015, without leave to amend, and Ms. Rubenstein appealed. In April 2017, the Court of Appeal reversed, holding that Ms. Rubenstein's allegations were sufficient to proceed past the pleadings stage of litigation. The case was transferred back to the district court. On September 7, 2017, the district court issued an order permitting Ms. Rubenstein to file a proposed Third Amended Complaint, which modifies the putative class period. Additionally, Ms. Rubenstein filed a motion for class certification, which was fully briefed by both parties. The parties reached an agreement in principle to settle the case, subject to court approval. A notice of settlement was filed, and the hearing on Ms. Rubenstein's motion for class certification was vacated. On October 1, 2018, the court granted final approval of the settlement and entered judgment accordingly. The deadline to appeal the judgment expired with no appeals, and thus the settlement is final. As of October 27, 2018, our recorded reserve related to this matter represents the remaining settlement liability paid in November 2018. Neiman Marcus Group LTD LLC operates as a luxury omni-channel retailer. It sells its products through stores and online sales channels under the Neiman Marcus, Bergdorf Goodman, MyTheresa, Last Call, and Horchow brand names. The company is headquartered in Dallas, Texas. Neiman Marcus Group LTD LLC is a subsidiary of Mariposa Intermediate Holdings Llc. NEW YORK: Aliyev Sues ACS for Negligence Over Child's Death ----------------------------------------------------------- Guseyn Aliyev, as administrator of the Estate of J.J., infant decedent, and Guseyn Aliyev, individually, and on behalf of all other similarly situated individuals, Plaintiff, v. City of New York and Administration of Childrens' Services (ACS), ACS Case Worker "Does" #1-100 and Supervisor "Does" #1-100, Defendants, Case No. 523770/2018, (N.Y. Sup., November 27, 2018), seeks to recover all actual, compensatory, consequential, special, punitive and other damages awardable with interest, attorney's fees, costs, taxed costs, and fees, and for such other, different, and further relief resulting from negligence and pursuant to the doctrine of "respondeat superior." Between November 26 to 28, 2016, J.J. was left in the care and custody of a certain Salvatore Lucchesse in 2161 West 5th Street, Brooklyn, New York 11223. The latter physically assaulted, battered and tortured J.J., delivering multiple blows to his head, face, neck, torso, upper and lower extremities. The three-year old J.J. went into a coma and died on December 2, 2016. Aliyev alleges that ACS' poor response to the incident resulted from inadequate staffing, case practice, supervision and training within the unit, as well as inconsistent, confusing and contradictory policies. The Administration of Childrens' Services is an agency of the City of New York charged with the responsibility of protecting the City's children from abuse and neglect. Aliyev, is the biological father of the infant decedent, J.J. [BN] Defendant is represented by: Paul J. Edelstein, Esq. THE EDELSTEINS, FAEGENBURG & BROWN, LLP 26 Broadway, Suite 901 New York, NY 10004 Tel. (212) 425-1999 Email: paul@efbpilaw.com NEW YORK: Parker Prisoners Suit Settlement Has Final Approval ------------------------------------------------------------- In the case, ROY PARKER et al. on behalf of themselves and all others similarly situated, Plaintiffs, v. CITY OF NEW YORK, Defendant, Case No. 15 CV 6733 (CLP) (E.D. N.Y.), Magistrate Judge Cheryl L. Pollak of the District Court for the Eastern District of New York granted the Plaintiffs' Motion for Final Approval of the Settlement. On Dec. 11, 2017, the Court entered an Order granting preliminary approval of the Class Settlement, preliminarily certifying the Settlement Class, appointing a Claims Administrator, and directing the Administrator to disseminate notice of the proposed settlement. The Notice was sent to the Class beginning on Jan. 25, 2018, and following a period for objections, the Plaintiffs moved on July 31, 2018, for final approval of the Settlement Agreement. On Sept. 10, 2018, the Court held a fairness hearing. On Nov. 23, 2015, Parker, on behalf of himself and all others similarly situated, filed a class action Complaint against the City of New York, claiming that the New York City Department of Corrections ("NYCDOC") had violated the Constitution by holding pretrial detainees in solitary confinement or punitive segregation ("PSEG") without providing them with due process and for no legitimate purpose. Following the filing of the Complaint on Nov. 23, 2015, the City filed an Answer on April 21, 2016. The Plaintiffs' First Amended Complaint was thereafter filed on Nov. 12, 2016, adding Rajab Asep, Christopher Chandler, Jamal Coleman, Allana Dixon, Chauncey Miranda, and Cesar Rivera as the named Plaintiffs. The Plaintiffs allege that for many years, NYCDOC pretrial detainees had been placed in PSEG for no reason except for the fact that the detainee had previously been found to have violated a disciplinary rule while incarcerated on another occasion, but had been released from custody prior to serving the entirety of the disciplinary sentence. They allege that if the detainee were later returned to NYCDOC custody, the City would require the detainee to serve the remainder of his "old" solitary confinement time. They allege that this explicit policy of the City, referred to as the "Old Time Policy," violated their constitutional rights because the Defendant never provided these detainees with a hearing or any other process. While the City claimed that placement in PSEG was necessary to ensure the safe operation of the detention facility, the Plaintiffs allege that it was simply to punish pretrial detainees who may not be punished until a formal adjudication of guilt has been made in accordance with due process. In seeking compensatory damages for the time spent in PSEG as a result of the Old Time Policy, the Plaintiffs allege that because pretrial detainees may not be punished until the government has secured a formal adjudication of guilt in accordance with due process of law, and because they may not be deprived of their liberty without adequate process, the Defendant's policy violates the substantive and procedural due process rights of pretrial detainees. The Court supervised discovery in the case and engaged in approximately 15 settlement discussions with the parties over an 18-month period, culminating in the execution of the Settlement Stipulation on Aug. 11, 2017. As set forth in the Court's Order of Dec. 11, 2017, the Class is defined in the Stipulation as the named Plaintiffs and all people who were confined in PSEG while a pretrial detainee based on the Old Time Policy at any time between Nov. 23, 2012 and Sept. 16, 2015. As part of the Settlement, the Class Members will receive minimum compensation of $175 for each day spent in PSEG while a pretrial detainee, as a result of the Old Time Policy. The Class Members who were diagnosed as having a serious mental illness or who were juveniles under the age of 18 when they served PSEG time due to the Old Time Policy will receive $200 per day spent in PSEG as part of the Settlement. The Stipulation further provides for modest service awards to the named Plaintiffs of no more than $500 per person. Following the Court's preliminary approval of the Class Settlement, notice was disseminated to 471 identified Class Members for whom addresses could be located. Additionally, summaries of the settlement terms were posted in NYCDOC and Department of Probation facilities. As of the date of the final fairness hearing held, 129 individuals had filed challenges seeking to be included in the Class. Of those challenges, 36 individuals were found to be members of the Settlement Class, with claims amounting to more than $400,000. After the final fairness hearing, two additional individuals filed challenges seeking to be included in the Class. The parties initially disputed whether the two additional individuals should be included in the Class, and have since determined between themselves that one person is a member of the Class and one person is not. Having considered the rationale offered by the counsel, Magistrate Judge Pollak approved of the resolution. Having considered the parties' submissions and presentations during the fairness hearing, and having considered all potential challenges and objections to the proposed Settlement, the Magistrate finds that proposed Class Settlement is fair, reasonable and adequate under the applicable standards. She granted the Plaintiffs' motions to certify the proposed Settlement Class under Federal Rule of Civil Procedure 23(b)(3), granted final approval of the Settlement Stipulation, and appointed the Plaintiffs' counsel as the Class Counsel. A full-text copy of the Court's Dec. 4, 2018 Memorandum and Order is available at https://is.gd/v5hawl from Leagle.com. Roy Parker, Rajab Asep, Christopher Chandler, Jamal Coleman, Allana Dixon, Chauncey Miranda & Cesar Rivera, on behalf of themselves and all others similarly situated, Plaintiffs, represented by Alexander A. Reinert -- areinert@yu.edu -- c/o Benjamin N. Cardozo School of Law, Daniel Erik Mullkoff -- dmullkoff@chwllp.com -- Cuti Hecker Wang LLP & Eric Jason Hecker -- ehecker@chwllp.com -- Cuti Hecker Wang LLP. City of New York, Defendant, represented by Martin John Bowe, The City of New York & Ryan Budhu, New York City Law Department. NHS PENNSYLVANIA: Brown Seeks Certification of Specialists Class ---------------------------------------------------------------- The Plaintiff in the lawsuit styled CHRISTOPHER BROWN, SR., on behalf of himself and other similarly situated employees v. NHS PENNSYLVANIA, INC., a Foreign For-Profit Corporation, Case No. 2:18-cv-01617-MLCF-JVM (E.D. La.), seeks entry of an order permitting conditional certification of a collective action. The putative class, to which the Plaintiff seeks to facilitate notice, consists of individuals defined as: All Substance Abuse Specialists, Employment Specialists, Housing Specialists, Peer Support Specialists, Forensic Specialists, Registered Nurses, and Licensed Practitioner Nurses who worked for Defendant's ACT/FACT teams within the state of Louisiana or Pennsylvania within the last three years. As stated in his complaint, the Plaintiff was an hourly paid employee (in this case, a "Specialist") employed by the Defendant and is authorized by the Fair Labor Standards Act to sue in his own name on behalf of himself and other employees similarly situated. Mr. Brown alleges that as a result of the Defendant's unlawful compensation practices, each class member did not receive full and proper payment of time and one half of their regular rate of pay for all hours worked over 40 in one or more workweeks. Mr. Brown also asks the Court to: (1) direct the Defendant to produce to him a list of all similarly situated class members within the last three years, (2) allow the sending of the proposed "Notification" letter to all similarly situated employees nationwide; and (3) allow the sending of proposed "Notice of Consent to Join" form, which similarly situated employees can complete, sign, and file with the Court.[CC] The Plaintiff is represented by: Carlos V. Leach, Esq. THE LEACH FIRM, P.A. 1950 Lee Road, Suite 213 Winter Park, FL 32789 Telephone: (321) 287-6021 Facsimile: (833) 423-5864 E-mail: cleach@theleachfirm.com - and - Craig B. Mitchell, Esq. Kendale J. Thompson, Esq. MITCHELL & ASSOCIATES, APLC 615 Baronne Street, Suite 300 New Orleans, LA 70113 Telephone: (504) 527-6433 Facsimile: (504) 527-6450 E-mail: cbmitchell@mitchellaplc.com kthompson@mitchellaplc.com NUCOR CORP: Court Denies Roane's Bid to Opt-Out in Brown Settlement ------------------------------------------------------------------- Judge David C. Norton of the U.S. District Court for the District of South Carolina, Charleston Division, denied Ramon Roane's request to proceed with his claims as a named individual and for exclusion from the settlement in the case, QUINTON BROWN, ALVIN SIMMONS, SHELDON SINGLETARY, GERALD WHITE, JASON GUY, and JACOB RAVENELL, individually and on behalf of the class they seek to represent, Plaintiffs, v. NUCOR CORPORATION and NUCOR STEEL BERKELEY, Defendants, Civil No. 2:04-cv-22005-DCN (D. S.C.). On Dec. 8, 2003, 13 Plaintiffs filed a nationwide class action pursuant to 42 U.S.C. Section 1981 and Title VII of the Civil Rights Act of 1964, as amended, in the U.S. District Court for the Western District of Arkansas against Nucor. On Aug. 24, 2004, the Plaintiffs' claims were severed into four separate cases, and each case was transferred to the judicial district in which the unlawful employment practices allegedly occurred. Accordingly, the case was transferred to the District of South Carolina. The Plaintiffs in the instant case (Quinton Brown, Jason Guy, Alvin Simmons, Sheldon Singletary, Gerald White, and Jacob Ravenell) are African-Americans who are current or former employees of Nucor. The class of African-American workers brought allegations of endemic racial discrimination at the Huger, South Carolina location of the Nucor steel plant. The Plaintiffs claimed that Nucor engaged in systemic racial discrimination in its selection procedures, in creating racially hostile working conditions, and having unequal terms and conditions of employment for its African-American workers. There are two classes in the case -- (1) the promotions class, involving disparate treatment and disparate impact claims; and (2) the hostile work environment class. The class is defined as all African-Americans who are, as of the date of the order (April 27, 2011), or were employed by Nucor Corp. or Nucor Steel Berkeley at the Nucor Berkeley manufacturing plant in Huger, South Carolina at any time between Dec. 2, 1999, and the date of the order (April 27, 2011), in the beam mill, hot mill, cold mill, melting, maintenance, and shipping departments, and who may have been discriminated against because of Nucor's challenged practices. The parties entered into a settlement on Feb. 22, 2018. The lone class member who filed an objection to the settlement was Roane, who was previously a named class representative. Roane has had a complicated history with the complicated case, including being the target of a motion for sanctions for making public statements accusing the court system of systemic racism. However, Roane's statements are not at the heart of the issue -- the matter is essentially before the Court on whether Roane should be allowed to opt out of the class at this late stage. In short, Judge Norton finds that the Court certified the class in the case after two trips to the Fourth Circuit and the intervening case of Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), which laid out what was required for class certification. After the case was certified, Roane posted a number of videos which contained negative statements about the litigation, the judge, and the parties involved. Nucor brought a motion for sanctions based on those videos, and Roane resigned as a class representative. He remained, however, a class member. At no point did Roane opt out of the class. The Judge holds that it is undisputable that Roane's individual claims as a named party Plaintiff were subsumed by the class claims. By sheer virtue of Roane being a named class representative, this must be true. While Roane was no longer a named Plaintiff representing class members, he was a class member represented by the named Plaintiffs. Accordingly, under established class action principles, he was bound by the judgment entered in the class action as a party, so long as he was adequately represented, had fair notice of his class membership, and declined to opt out of the class. All of these factors are fulfilled in the case. The Class Notice gave Roane adequate notice of his opportunity to opt out of the class. He declined to do so. Roane was required to opt out in January 2017 when the class notice was sent. Roane next argues that the Court should grant relief from the class opt-out deadline. If the Court granted an extension to one class member, other members would be incentivized to seek similar relief. Roane, as a former named class representative, was well aware of how to reach out to the class counsel in the event that he had questions about how to interpret the class notice, and for some reason he chose not to do so. Importantly, Roane objects to the settlement not on the basis of the fairness of the settlement entered in this case but on the basis that he wants to "proceed to trial." Judge Norton concludes that it would be a waste of judicial resource to allow Roane a second opportunity to opt out and proceed to trial in the case. He was bound by the January 2017 opt-out deadline set forth in the class notice. And after weighing the Pioneer Investment factors, the Judge refused Roane relief from the opt-out deadline as no "excusable neglect" supports his request to opt out late. Therefore, he denied the motion for late opt out. A full-text copy of the Court's Dec. 7, 2018 Order is available at https://is.gd/1uTgF9 from Leagle.com. Quinton Brown, Jason Guy, Alvin Simmons & Gerald White, Plaintiffs, represented by Armand Georges Derfner -- aderfner@derfneraltman.com -- Derfner Altman and Wilborn, Peter Kent Spriggs -- kspriggs@spriggslawfirm.com -- Spriggs Law Firm, pro hac vice, Peter Wilborn -- info@wilborn.law -- Law Office of Peter Wilborn, Ray Pratt McClain , Ray McClain Law Firm, Ann Korns Wiggins -- awiggins@wigginschilds.com -- Wiggins Childs Quinn and Pantazis, pro hac vice & Robert L. Wiggins, Jr. -- wiggins@wigginschilds.com -- Wiggins Childs Quinn and Pantazis, pro hac vice. Sheldon Singletary, Plaintiff, represented by Armand Georges Derfner, Derfner Altman and Wilborn, Peter Kent Spriggs, Spriggs Law Firm, pro hac vice, Peter Wilborn, Law Office of Peter Wilborn, Ray Pratt McClain, Ray McClain Law Firm & Ann Korns Wiggins, Wiggins Childs Quinn and Pantazis, pro hac vice. Jacob Ravenell, Plaintiff, represented by Armand Georges Derfner, Derfner Altman and Wilborn, Peter Kent Spriggs, Spriggs Law Firm, pro hac vice & Peter Wilborn, Law Office of Peter Wilborn. Nucor Corporation & Nucor Steel Berkeley, Defendants, represented by Gabriel E. Gore -- ggore@dowdbennett.com -- Dowd Bennett, pro hac vice, James Forest Bennett -- jbennett@dowdbennett.com -- Dowd Bennett, pro hac vice, Jennifer S. Kingston -- jkingston@dowdbennett.com -- Dowd Bennett, pro hac vice, John Smith Wilkerson, III -- JWILKERSON@TURNERPADGET.COM -- Turner Padget Graham and Laney, Sheena R. Hamilton -- shamilton@dowdbennett.com -- Dowd Bennett, pro hac vice, Cary Andrew Farris -- cfarris@winstead.com -- Winstead PC, pro hac vice, James Shannon Gatlin -- gatlin@mdjwlaw.com -- Alaniz and Schraeder, pro hac vice, Jeffrey S. Mayes -- jeff.mayes@ogletree.com -- Alaniz and Schraeder, pro hac vice, John K. Linker -- jlinker@winstead.com -- Winstead PC, pro hac vice, Michael J. Kuhn -- mkuhn@dowdbennett.com -- Dowd Bennett LLP, pro hac vice, Richard D. Alaniz -- ralaniz@cruickshank.attorney.com -- Alaniz and Schraeder & Terry E. Schraeder -- tschraeder@alaniz-schraeder.com -- Alaniz and Schraeder. NUTRACEUTICAL CORP: SCOTUS Hears Arguments in Cobra Case --------------------------------------------------------- Nicholas Florko, writing for STAT, reports that they aren't the type of words that usually show up in Supreme Court briefs, but on Nov. 27, they would be there just the same: Cobra Sexual Energy. The court was set to hear oral arguments in Nutraceutical Corp. v. Lambert, the latest flash point in a five-year spat between unsatisfied California men and Nutraceutical Corp., a supplement company that sells a dietary supplement called "Cobra Sexual Energy" that contains a mix of horny goat weed, yohimbe, and potency wood, and that the company boasts will help with "animal magnetism." The justices would focus more on the "class action" status of the case than the eyebrow-raising merits of the lawsuit. But the case points to the limited role of the Food and Drug Administration in policing the supplement industry. Dietary supplements, which include everything from vitamin C tablets to workout stimulants, are used by 75 percent of Americans, according to a recent survey from an industry trade group, the Council for Responsible Nutrition. Because the FDA has limited power to police the industry, consumers are increasingly turning to class-action lawsuits to hold manufacturers accountable. "FDA-regulated industries have seen an enormous amount of class action litigation over the last 10 years," Anthony Anscombe, a partner at the law firm Steptoe & Johnson, who focuses on class-action defense, told STAT. The class-action case the Supreme Court was set to weigh on Nov. 27 began in California, in 2013. Troy Lambert, who's from Long Beach, is the named plaintiff. The crux of his lawsuit argues that Nutraceutical Corp. ran afoul of California's unfair competition laws by misleading consumers. Among the plaintiffs' complaints: "that Defendants' conduct is immoral, unscrupulous, and offends public policy by seeking to profit from male vulnerability to false or deceptive virility or aphrodisiac claims." For Mr. Lambert, it all started with an otherwise ordinary trip to the Rite Aid convenience store in Long Beach. He wasn't in the market for a sexual enhancer, but the photo of a cobra emblazoned on Cobra Sexual Energy's bright red box caught his eye, according to the complaint. The product's promises are thin. The box proclaims consumers will "Perform Your Best With Animal Magnetism," but that's as explicit as the product's label gets. Lambert hoped the pills would help him have sex for longer. He saw no effect, even after he polished off the first bottle of 60 capsules. Nonetheless, he kept up hope the product would build up in his system over time. So he bought it a handful more times over the next couple of months, shelling out between $16 and $18 each time and keeping the purchases a secret from his wife. Mr. Lambert's lawsuit is seeking $210,000, most of which would be split among the men who took the product. Nutraceutical contends that its claims about the product were "non-actionable puffery." "They are suggestive hyperbole that are inherently subjective, non-quantifiable, and 'so exaggerated as to preclude reliance by consumers,'" Nutraceutical writes in a court filing. It's not clear how many people tried Cobra Sexual Energy. But Nutraceutical is well-established in the dietary supplement market. The company has more than 50 product lines -- most of which have nothing to do with sex -- and the company had over $230 million in net sales in 2016, according to the company's most recent financial filings. Target, Rite Aid, and CVS all sold Cobra Sexual Energy back in 2012. And while the product has been pulled from the shelves at all three chains, it is still available online — as is a female version packaged in a bubble gum pink box. Nutraceutical declined to comment for this story. But Daniel Fabricant, who heads a dietary supplement lobbying association, the Natural Products Association, called the Cobra Sexual Energy lawsuit "a shakedown." "The plaintiff bar looks at the product and says, 'OK, this is a reputable manufacturer, they're going to settle,'" Mr. Fabricant said. "Well, these guys decided not to settle." Mr. Fabricant said the lawsuit is on flimsy ground. "They don't have data to show that the public was misled by the claim and furthermore they don't have any data that shows there was any sort of public health harm. So I'm a bit confused as to what exactly we're protecting consumers from," Mr. Fabricant told STAT. The case highlights a unique fact of U.S. food and drug law: The FDA has jurisdiction over every prescription drug sold here, as well as some authority to oversee over-the-counter products like Tylenol or hydrocortisone cream. The agency has less authority over vitamins or dietary supplements. Under a 1994 law called the Dietary Supplement Health and Education Act, the FDA can't review dietary supplements before they hit the market to ensure they are safe and actually do what they say they will, like it can for new drugs. Instead, the FDA begins monitoring supplements' safety after they're on the market and the agency reviews substantiation for claims "as resources permit." The FDA can only swiftly step in when supplements actually contain FDA-approved drugs. Sexual enhancers are the worst offenders, according to a recent study published in the Journal of the American Medical Association. In the past year, FDA has alerted consumers to avoid products like "XXXPlosion Ultra," "Rhino 69 Extreme 50000" and "Best Leopard Miracle of Honey," all of which included the active ingredient used in the drugs Viagra and Cialis. And that has some advocates pushing for Congress to expand the FDA's regulatory authority. They say the agency doesn't have the resources to adequately monitor the market, and that unsafe and deceptive products often slip through the cracks. They say Congress should beef up what the agency can and can't do. "People being misled is extremely common," Dr. Peter Lurie, head of the Center for Science in the Public Interest, told STAT. "In the commonsense understanding of whether or not people are induced to have higher hopes than they ought to, I think that's as common as snow in Alaska." Dr. Lurie, who previously served as associate commissioner for public health strategy and analysis at the FDA, places part of the blame on Congress for "shackling the FDA with a statute that doesn't give it the authority that it needs to police this marketplace." His organization, CSPI, files class-action lawsuits on behalf of consumers. "The agency itself is hopelessly underfunded in the dietary supplement area," he added. "The size and the nimbleness of the dietary supplement market is such that it's very difficult for their staff to stay on top of this." The dietary supplement industry, on the other hand, says the FDA already has the authority to pull products off the market if they are unsafe. Fabricant saw the agency do just that when he led FDA's office of dietary supplements as it forced workout enhancers Jack3d and OxyElite Pro off the market in 2013. The FDA did not respond to request for comment. In the void, however, class-action lawsuits have become an increasingly popular tool for regulating the market. Industry groups have said increase in class actions is the byproduct of money-hungry class-action attorneys. "It's been one of the biggest burdens for the natural products industry for the past 25 years," Fabricant said. Mr. Anscombe acknowledged that the expectation of a payout is one of the motivating factors for filing these cases. "If Plaintiffs did not see money to be won, they wouldn't bring lawsuits," he wrote in an email to STAT. The Supreme Court isn't likely to solve these hot-button FDA issues -- it is actually weighing an issue related to the cases' "class action" status. The case was dealt a major setback in 2015 when the district court decertified the class in the case, effectively killing the class action. Mr. Lambert's attorney appealed this decision but missed a key deadline. The Court of Appeals for the 9th Circuit nonetheless gave Lambert and his attorney a pass. On Nov. 27, the Supreme Court will decide whether the 9th Circuit got that decision to extend the deadline right. "Neither side has much interest in the larger question, sure. But each side has a strong interest in winning this dispute," Dan Epps, associate professor of law at Washington University and co-host of the Supreme Court podcast "First Mondays," said. "So each side is highly motivated to fight tooth and nail over every point, and here there ended up being this interesting question about equitable extensions for appeal deadlines." The justices, then, won't have to weigh the merits of the complaint -- giving them the chance to sidestep something of an age-old dilemma. As Mr. Lambert's brief before the appeals court described it, after all, "the fraudulent sale of fake, snake oil, 'herbal' aphrodisiacs is an ancient problem." [GN] NUVASIVE INC: Mauss Securities Suit Settlement Has Final Approval ----------------------------------------------------------------- In the case, BRAD MAUSS, on behalf of himself and all others similarly situated, Plaintiffs, v. NUVASIVE, INC.; ALEXIS V. LUKIANOV; and MICHAEL J. LAMBERT, Defendants, Case No. 13cv2005 JM (JLB) (S.D. Cal.), Judge Jeffrey T. Miller of the U.S. District Court for the Southern District of California (i) granted the Plaintiffs' motion for final approval of the settlement, and (ii) granted in part the Plaintiffs' motion for an award of attorneys' fees, reimbursement of expenses, and award for the Plaintiffs. The case is a federal securities class action for violations of Section 20(a) and 10(b) of the Securities Exchange Act of 1934 on behalf of investors who purchased or otherwise acquired Defendant NuVasive's securities. Lead Plaintiff Mauss and Plaintiff Daniel Popov initiated the action on behalf of themselves and those individuals who purchased NuVasive, Inc. securities between Oct. 22, 2008 and July 30, 2013. NuVasive designs, develops, and markets products for the surgical treatment of spine disorders. Lukianov was NuVasive's CEO and Chairman of the Board of Directors at all relevant times. Lambert has been CFO since November 2009. The Plaintiffs' sixth amended complaint ("6AC") asserts two claims, for (1) securities fraud, in violation of Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5, against all the Defendants; and (2) control-person liability under Section 20(a) of the Securities and Exchange Act, against Defendants Lukianov, and Lambert. The Plaintiffs allege, in sum, that the Defendants engaged in illegal sales, marketing, and billing practices that exposed the company to an increased risk of regulatory liability under the federal Anti-Kickback Statute and the False Claims Act, but they did not disclose that risk to investors, who bought their shares at an inflated price and were harmed when the concealed risk materialized. After filing their 6AC, four rounds of Rule 12(b)(6) motions, and several other motions, the Plaintiffs moved for class certification on Oct. 28, 2016. On March 22, 2017, the Court granted the motion for class certification and appointed Brad Mauss and Daniel Popov as the class representatives. Pomerantz LLP was appointed as the Lead Counsel and Glancy Prongay & Murray LLP was appointed as the Liaison Counsel. The Court certified the class of all persons other than defendants who purchased or otherwise acquired NuVasive, Inc. common stock between Oct. 22, 2008 and July 30, 2013. On Sept. 8, 2017, the Defendants filed both a motion for summary judgment on the issue of loss causation and a motion to exclude the testimony of the Plaintiffs' expert, Dr. Zachary Nye. The court denied both motions. The parties participated in two private mediation sessions. Thereafter, on March 6, 2018, the parties filed a Notice of Settlement. On March 23, 2018, the Plaintiffs filed a Motion for Preliminary Approval of Class Action Settlement. The Court granted that motion and set a final approval hearing for Nov. 19, 2018. The Stipulation of Settlement provides for a $7.9 million settlement fund. The Defendants are to transfer these funds to an escrow agent, who will invest the funds. The escrow agent will reinvest the proceeds of these instruments as they mature in similar instruments at their then-current market rates. Thus, the total settlement fund is $7.9 million plus later accrued interest. The payments will be made to class members after a final judgment is entered and no longer appealable. The balance of the settlement fund will be distributed to class members according to the Plan of Allocation after deduction of any court-awarded attorneys' fees and expenses, notice and administration expenses authorized by the stipulation, taxes, and any court award to the Plaintiffs. The Plan of Allocation provides for a pro rata distribution of the remaining settlement funds based on a formula described in detail in the notice. The class counsel move for an award of attorneys' fees in the amount of 30% of the settlement fund ($2.37 million, plus accrued interest at the time of payment) and reimbursement for $802,695.08 in expenses. Plaintiffs Brad Mauss and Daniel Popov request awards of $7,500 each. The Settlement administration costs are not to exceed $250,000. All of these amounts are to be paid from the settlement fund. Pursuant to the Court's order granting preliminary approval, the claims administrator took a number of actions to provide notice of the settlement to the proposed class. No class member objected to the proposed settlement, Plan of Allocation, or any other aspect of the settlement. There were no requests for exclusion from the settlement. In total, the claims administrator received 25,380 claim forms. The Plaintiffs move the Court for final approval of a class action settlement and an award of attorneys' fees and costs. The Defendants do not oppose either motion. On Nov. 19, 2018, the Court held a final approval hearing. Judge Miller approved Settlement as fair, reasonable, adequate, and in the best interests of the Class. All of the claims asserted in the Complaint or the Action against the Defendants are dismissed with prejudice. Without further order of the Court, the Settling Parties may agree to reasonable extensions of time to carry out any of the provisions in the Stipulation. The Clerk of Court is directed to enter Final Judgment and close the file. The Judge awarded the Lead Counsel attorneys' fees in the amount of 30% of the Settlement Fund, together with the interest earned thereon for the same time period and at the same rate as that earned on the Settlement Fund until paid, and expenses in an amount of $745,426.71. He also awarded Lead Plaintiff Brad Mauss a compensatory award for his efforts on behalf of the Class in the amount of $7,500 and Plaintiff Daniel Popov a compensatory award for his efforts on behalf of the Class in the amount of $7,500. The Lead Counsel's attorneys' fees and expenses, as awarded by the Court, will be paid within 10 days of the award by the Court. A full-text copy of the Court's Dec. 5, 2018 Order is available at https://is.gd/AgNgCK from Leagle.com. Brad Mauss, Individually and on Behalf of All Other Persons Similarly Situated, Plaintiff, represented by Adam G. Kurtz -- agkurtz@pomlaw.com -- Pomerantz LLP, pro hac vice, Emma Gilmore -- egilmore@pomlaw.com -- Pomerantz LLP, pro hac vice, Jennifer Pafiti -- jpafiti@pomlaw.com -- Pomerantz LLP, Justin Solomon Nematzadeh -- jnematzadeh@pomlaw.com -- Pomerantz LLP, pro hac vice, Lionel Z. Glancy -- lglancy@glancylaw.com -- Glancy Prongay & Murray LLP, Louis Ludwig -- lcludwig@pomlaw.com -- Pomerantz LLP, pro hac vice, Michael M. Goldberg , Goldberg Law PC, Michele S. Carino -- mcarino@carinolaw.com -- Pomerantz LLP &Jeremy A. Lieberman -- jalieberman@pomlaw.com -- Pomerantz LLP, pro hac vice. Nuvasive, Inc. & Michael J. Lambert, Defendants, represented by Kellin Maurine Chatfield -- kellin.chatfield@dlapiper.com -- DLA Piper LLP, Robert W. Brownlie --robert.brownlie@dlapiper.com -- DLA Piper LLP & Noah A. Katsell -- noah.katsell@dlapiper.com -- DLA Piper LLP. Alexis V. Lukianov, Defendant, represented by Christopher Harold McGrath -- chrismcgrath@paulhastings.com -- Paul Hastings LLP & Raymond Winters Stockstill -- beaustockstill@paulhastings.com -- Paul Hastings LLP. Carole Lyn Zeleny, Miscellaneous Party, represented by Jeffrey M. Haber -- jhaber@fhnylaw.com -- Law Office of Jeffrey M. Haber, pro hac vice. OOMA INC: Discovery Ongoing in Barnett Consolidated Class Suit -------------------------------------------------------------- Ooma, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on December 7, 2018, for the quarterly period ended October 31, 2018, that the parties in the consolidated class action suit initiated by Michael Barnett are now engaged in the discovery phase of the litigation. On January 14, 2016, Michael Barnett filed a purported stockholder class action in the San Mateo County Superior Court of the State of California (Case No. CIV536959) against the Company, certain of its officers and directors, and certain of the underwriters of the Company's initial public offering (IPO) on July 17, 2015. Since that time two additional purported class actions making substantially the same allegations against the same defendants were filed, and on May 18, 2016, all three complaints were combined into a "consolidated complaint" filed in the same court (the "Securities Litigation"). The consolidated complaint purports to be brought on behalf of all persons who purchased shares of common stock in the Company's IPO in reliance upon the Registration Statement and Prospectus the Company filed with the SEC. The consolidated complaint alleges that the Company and the other defendants violated the Securities Act of 1933, as amended (the "Securities Act") by issuing the Registration Statement and Prospectus, which the plaintiffs allege contained material misstatements and omissions in violation of Sections 11, 12(a)(2) and 15 of the Securities Act. The plaintiffs seek class certification, compensatory damages, attorneys' fees and costs, rescission or a rescissory measure of damages, equitable and/or injunctive relief, and such other relief as the court may deem proper. On November 29, 2017, the Superior Court dismissed the claims that were based on Sections 12(a)(2) and 15 of the Securities Act with prejudice, but denied the Company's motion to stay the case pending the United States Supreme Court's decision in Cyan v. Beaver Cnty. Emp. Ret.' Fund. On March 20, 2018, the United States Supreme Court published its decision in the Cyan case, holding that state courts have subject matter jurisdiction to hear claims brought under the Securities Act, such as the claims alleging violations of Section 11 of the Securities Act (the only remaining claims in the Securities Litigation) brought against the Company in the Superior Court. The parties are now engaged in the discovery phase of the litigation. The Company believes the plaintiffs' claims are without merit and the Company is vigorously defending against the Securities Litigation and will continue to do so. Ooma said, "However, litigation is unpredictable and there can be no assurances that the Company will obtain a favorable final outcome or that it will be able to avoid unfavorable preliminary or interim rulings in the course of litigation that may significantly add to the expense of its defense and could result in substantial costs and diversion of resources." Based on the Company's current knowledge, the Company has determined that the amount of any material loss or range of any losses that is reasonably possible to result from the Securities Litigation is not estimable. Ooma, Inc. provides communications solutions and other connected services to small business, home, and mobile users in the United States and Canadian markets. Ooma, Inc. was incorporated in 2003 and is headquartered in Sunnyvale, California. OOMA INC: Dolemba Class Action Ongoing -------------------------------------- Ooma, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on December 7, 2018, for the quarterly period ended October 31, 2018, that the the company continues to defend itself against a class action lawsuit initiated by Scott Dolemba. On September 4, 2018, plaintiff Scott Dolemba filed a putative class action complaint against the Company in the U.S. District Court for the Northern District of Illinois, Eastern Division, alleging violations of the Telephone Consumer Protection Act and the Illinois Consumer Fraud Act. The complaint seeks unspecified monetary damages, costs, attorneys' fees and other appropriate relief. Ooma said, "Based on the Company's current knowledge, the Company has determined that the amount of any estimated loss resulting from the Dolemba Litigation is not material." Ooma, Inc. provides communications solutions and other connected services to small business, home, and mobile users in the United States and Canadian markets. Ooma, Inc. was incorporated in 2003 and is headquartered in Sunnyvale, California. PARFUMS DE COEUR: Okoe Sues Over Misleading Product Ads ------------------------------------------------------- Daniel Okoe, on behalf of himself and others similarly situated, Plaintiff, v. Parfums De Coeurs Ltd., Defendant, Case No. 5:18-cv-01979 (D. Conn., December 5, 2018) is a consumer protection class action arising from PDC's deceptive practices in the marketing, advertising, and promotion of its Dr. Teal's Epsom Salt products. Through an extensive, widespread, comprehensive, and uniform nationwide marketing campaign, Defendant represents that its Epsom salts offer various non-existent health benefits, says the complaint. Plaintiff OKOE purchased this in reliance on the label representation that the Product "cleanses away body's impurities" and "eases aches and soreness from muscle pains." However, Plaintiff OKOE used the Product as directed and did not experience any of its promised benefits. As a result of his purchase, Plaintiff OKOE was denied the benefit of his bargain. He was financially injured when his spent money on a product that did not deliver what it promised and indeed delivered nothing at all. Since using the Product in no way added to the ordinary experience of taking a bath, he was injured in the amount of the full purchase price, the complaint relates. Plaintiff OKOE seeks to end Defendant's dissemination of its false and misleading advertising, correct the false and misleading perception it has created in the minds of consumers, and obtain redress for those who have purchased the Products, adds the complaint. Plaintiff Daniel Okoe is a citizen of the State of New York and a resident of New York County. Parfums De Coeurs is a company organized under the laws of the State of Connecticut with its principal place of business at 6 High Ridge Park, Floor C2, Stamford, Connecticut 06905. It manufactures, markets, and sells beauty, personal care, and wellness products throughout the United States, including numerous versions of its Dr. Teal's Epsom Salt, which is sold at a wide variety of retail and online outlets throughout America.[BN] The Plaintiff is represented by: C.K. Lee, Esq. LEE LITIGATION GROUP, PLLC 30 East 39th Street, Second Floor New York, NY 10016 Phone: 212-465-1188 Fax: 212-465-1181 Email: cklee@leelitigation.com - and - Stephen M. Bourtin, Esq. THE BOYD LAW GROUP, PLLC Stephen M. Bourtin, Esq. 68 Southfield Avenue, Two Stamford Landing, Suite 100 Stamford, CT 06902 Phone: 203-921-0322 Email: sbourtin@theboydlawgroup.com PATTERSON COS: Executes Settlement Pact in Dental Supplies Suit --------------------------------------------------------------- Patterson Companies, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on December 6, 2018, for the quarterly period ended October 27, 2018, that the parties in the case entitled, In re Dental Supplies Antitrust Litigation, Civil Action No. 1:16-CV-00696-BMC-GRB, executed a settlement agreement that proposes a full and final settlement of the lawsuit on a class-wide basis, subject to court approval. Beginning in January 2016, purported antitrust class action complaints were filed against defendants Henry Schein, Inc., Benco Dental Supply Company and Patterson Companies, Inc. Although there were factual and legal variations among these complaints, each alleged that defendants conspired to foreclose and exclude competitors by boycotting manufacturers, state dental associations, and others that deal with defendants' competitors. On February 9, 2016, the U.S. District Court for the Eastern District of New York ordered all of these actions, and all other actions filed thereafter asserting substantially similar claims against defendants, consolidated for pre-trial purposes. On February 26, 2016, a consolidated class action complaint was filed by Arnell Prato, D.D.S., P.L.L.C., d/b/a Down to Earth Dental, Evolution Dental Sciences, LLC, Howard M. May, DDS, P.C., Casey Nelson, D.D.S., Jim Peck, D.D.S., Bernard W. Kurek, D.M.D., Larchmont Dental Associates, P.C., and Keith Schwartz, D.M.D., P.A. (collectively, "putative class representatives") in the U.S. District Court for the Eastern District of New York, entitled In re Dental Supplies Antitrust Litigation, Civil Action No. 1:16-CV-00696-BMC-GRB. Subject to certain exclusions, the putative class representatives seek to represent all private dental practices and laboratories who purchased dental supplies or equipment in the U.S. directly from any of the defendants, during the period beginning August 31, 2008 until March 31, 2016. In the consolidated class action complaint, putative class representatives allege a nationwide agreement among Henry Schein, Benco, Patterson and non-party Burkhart Dental Supply Company, Inc. not to compete on price. The consolidated class action complaint asserts a single count under Section 1 of the Sherman Act, and seeks equitable relief, compensatory and treble damages, jointly and severally, interest, and reasonable costs and expenses, including attorneys' fees and expert fees. On September 28, 2018, the parties executed a settlement agreement that proposes a full and final settlement of the lawsuit on a class-wide basis, subject to court approval. Patterson Companies said, "Related to this settlement, we recorded a charge of $28,263 in our first quarter 2019 results in our Corporate segment." Patterson Companies, Inc. distributes and sells dental and animal health products in the United States, the United Kingdom, and Canada. It operates through Dental and Animal Health segments. The company was formerly known as Patterson Dental Company and changed its name to Patterson Companies, Inc. in June 2004. Patterson Companies, Inc. was founded in 1877 and is headquartered in St. Paul, Minnesota. PATTERSON COS: Faces Kramer Class Action in California ------------------------------------------------------ Patterson Companies, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on December 6, 2018, for the quarterly period ended October 27, 2018, that the company faces a purported class action suit filed by Nathaniel Kramer. On October 9, 2018, Nathaniel Kramer filed indirect purchaser litigation against Patterson Companies, Inc., Henry Schein, Inc. and Benco Dental Supply Company in the United States District Court for the District of Northern District of California. The purported class action complaint asserts violations of the California Cartwright Act and the California Unfair Competition Act based on an alleged agreement between Schein, Benco, and Patterson (and unnamed co-conspirators) not to compete as to price and margins. Plaintiff alleges that the agreement allowed the defendants to charge higher prices to dental practices for dental supplies and that the dental practices passed on all, or part of, the increased prices to the consumers of dental services. Subject to certain exclusions, the complaint defines the class as all persons residing in California purchasing and/or reimbursing for dental services from California dental practices. The complaint seeks a permanent injunction, actual damages to be determined at trial, trebled, reasonable attorneys' fees and costs, and pre- and post-judgment interest. Patterson Companies said, "While the outcome of litigation is inherently uncertain, we believe that the derivative complaint is without merit, and we intend to vigorously defend ourselves in this litigation." Patterson Companies, Inc. distributes and sells dental and animal health products in the United States, the United Kingdom, and Canada. It operates through Dental and Animal Health segments. The company was formerly known as Patterson Dental Company and changed its name to Patterson Companies, Inc. in June 2004. Patterson Companies, Inc. was founded in 1877 and is headquartered in St. Paul, Minnesota. PATTERSON COS: Still Defends Plymouth County Retirement Suit ------------------------------------------------------------ Patterson Companies, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on December 6, 2018, for the quarterly period ended October 27, 2018, that the company continues to defend a federal securities class action suit entitled, Plymouth County Retirement System v. Patterson Companies, Inc., Scott P. Anderson and Ann B. Gugino. On March 28, 2018, Plymouth County Retirement System ("Plymouth") filed a federal securities class action complaint against Patterson Companies, Inc. and its former CEO Scott P. Anderson and former CFO Ann B. Gugino in the U.S. District Court for the District of Minnesota in a case captioned Plymouth County Retirement System v. Patterson Companies, Inc., Scott P. Anderson and Ann B. Gugino, Case No. 0:18-cv-00871 MJD/SER. On November 9, 2018, the complaint was amended to add former CEO James W. Wiltz and former CFO R. Stephen Armstrong as individual defendants. Under the amended complaint, on behalf of all persons or entities that purchased or otherwise acquired Patterson's common stock between June 26, 2013 and February 28, 2018, Plymouth alleges that Patterson violated federal securities laws by failing to disclose that Patterson's revenue and earnings were "artificially inflated by Defendants' illicit, anti-competitive scheme with its purported competitors, Benco and Schein, to prevent the formation of buying groups that would allow its customers who were office-based practitioners to take advantage of pricing arrangements identical or comparable to those enjoyed by large-group customers." In its class action complaint, Plymouth asserts one count against Patterson for violating Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder and a second, related count against the individual defendants for violating Section 20(a) of the Exchange Act. Plymouth seeks compensatory damages, pre- and post-judgment interest and reasonable attorneys' fees and experts' witness fees and costs. On August 30, 2018, Gwinnett County Public Employees Retirement System and Plymouth County Retirement System, Pembroke Pines Pension Fund for Firefighters and Police Officers, Central Laborers Pension Fund were appointed lead plaintiffs. Patterson Companies said, "While the outcome of litigation is inherently uncertain, we believe that the class action complaint is without merit, and we are vigorously defending ourselves in this litigation. We do not anticipate that this matter will have a material adverse effect on our financial statements. Patterson has also received requests under Minnesota Business Corporation Act Section 302A.461 to inspect corporate books and records relating to the issues raised in the securities class action and the antitrust matters." Patterson Companies, Inc. distributes and sells dental and animal health products in the United States, the United Kingdom, and Canada. It operates through Dental and Animal Health segments. The company was formerly known as Patterson Dental Company and changed its name to Patterson Companies, Inc. in June 2004. Patterson Companies, Inc. was founded in 1877 and is headquartered in St. Paul, Minnesota. PAY-O-MATIC CHECK: Accused by Luyando of Violating FLSA and NYLL ---------------------------------------------------------------- Carmen Luyando, individually and on behalf of all others similarly-situated v. PAY-O-MATIC CHECK CASHING CORP., THE PAY-O-MATIC CORP., and JOHN and JANE DOES 1-100, Case No. 1:18-cv-11114 (S.D.N.Y., November 28, 2018), accuses the Defendants of violating the: (1) the minimum wage and overtime requirements of the Fair Labor Standards Act; (2) the minimum wage and overtime requirements of the New York Labor Laws; (3) the wage statement and notice requirements of the NYLL; and (4) any other claim(s) that can be fairly inferred from the facts set forth in the complaint. Pay-O-Matic Check Cashing Corporation and The Pay-O-Matic Corporation are Domestic Business Corporations and existing under the laws of the state of New York and list their principal corporate office and address for service of process as 160 Oak Drive, in Syosset, New York. The Doe Defendants are the individuals, who are and/or were in active control and management of the Company. The Pay-O-Matic Corporation provides check cashing, money transfer, and bill payment services. The Company offers prepaid card, direct deposit, prepaid, money order, deposit/withdrawal, and other services.[BN] The Plaintiff is represented by: Benjamin D. Weisenberg, Esq. THE OTTINGER FIRM, P.C. 401 Park Avenue South New York, NY 10016 Telephone: (212) 571-2000 Facsimile: (212) 571-0505 E-mail: benjamin@ottingerlaw.com PEKIN, IL: Berardi Files Suit under Disabilities Act ---------------------------------------------------- The City of Pekin, Illinois is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Patricia Berardi, Robert Chriswell, Alice Rose Mary Ortiz, Austin Calloway, Ellen Sunderland and Lisa Lynch, as the parent and next friend of Maygen Lynch, a minor child, individually on behalf of themselves and all other persons similarly situated, Plaintiffs v. City of Pekin, Illinois, a municipal corporation, Mark Rother, not individually, but in his official capacity as the Pekin City Manager, John McCabe, John P. Abel, Michael Garrison, Mark Luft, Lloyd Orrick, Michael Ritchason and Jim Schramm, not individually, but in their official capacities as Council Members for the City of Pekin, Defendants, Case No. 1:18-cv-01438-JBM-JEH (C.D. Ill., December 5, 2018). Pekin is a city in and the county seat of Tazewell County in the U.S. state of Illinois. Located on the Illinois River, Pekin is the largest city of Tazewell County and the second most populous municipality of the Peoria metropolitan area, after Peoria itself. As of the 2010 census, its population is 34,094. A small portion of the city limits extend into Peoria County. Pekin is the 13th-most populous city in Illinois outside the Chicago Metropolitan Area. It is the most populous municipality in the United States with the name Pekin.[BN] The Plaintiffs are represented by: Andres J Gallegos, Esq. ROBBINS SALOMON & PATT LTD 180 North LaSalle Street, Suite 3300 Chicago, IL 60601 Tel: (312) 456-0381 Fax: (312) 782-6690 Email: agallegos@rsplaw.com - and – Jennifer Lundy Sender, Esq. ROBBINS SALOMON & PATT LTD 180 North LaSalle Street, Suite 3300 Chicago, IL 60601 Tel: (312) 782-9000 Fax: (312) 782-6690 Email: jsender@rsplaw.com PERMANENT WORKERS: Portillo Appeals W.D. La. Ruling to 5th Cir. --------------------------------------------------------------- Plaintiff Javier Portillo filed an appeal from a court ruling in his lawsuit entitled Javier Portillo v. Permanent Workers, L.L.C., et al., Case No. 6:15-CV-1048, in the U.S. District Court for the Western District of Louisiana, Lafayette. As previously reported in the Class Action Reporter, Mr. Portillo sued his former employers for alleged unpaid overtime wages in a collective action suit under the Fair Labor Standards Act. He sought unpaid wages, interest, liquidated damages, and attorney fees. The appellate case is captioned as Javier Portillo v. Permanent Workers, L.L.C., et al., Case No. 18-31238, in the U.S. Court of Appeals for the Fifth Circuit.[BN] Plaintiff-Appellant JAVIER PORTILLO, on behalf of himself or other persons similarly situated, is represented by: Roberto Luis Costales, Esq. COSTALES LAW OFFICE 3801 Canal Street New Orleans, LA 70119 Telephone: (504) 914-1048 E-mail: rlc@beaumontcostales.com Defendants-Appellees PERMANENT WORKERS, L.L.C., and DANNY CEPERO are represented by: Murphy J. Foster, III, Esq. Melissa Morse Shirley, Esq. BREAZEALE, SACHSE & WILSON, L.L.P. 301 Main Street 1 American Place Baton Rouge, LA 70801 Telephone: (225) 387-4000 E-mail: murphy.foster@bswllp.com melissa.shirley@bswllp.com Defendant-Appellee CONRAD INDUSTRIES, INCORPORATED, is represented by: Greg Guidry, Esq. OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 603 Silverstone Road Lafayette, LA 70508 Telephone: (337) 769-6583 E-mail: greg.guidry@ogletreedeakins.com PORT RESOURCES: First Circuit Appeal Filed in Giguere Suit ---------------------------------------------------------- Plaintiff David Giguere filed an appeal from a court ruling in the lawsuit titled Giguere v. Port Resources Inc., Case No. 2:16-cv-00058-NT, in the U.S. District Court for the District of Maine, Portland. The appellate case is captioned as Giguere v. Port Resources Inc., Case No. 18-2163, in the United States Court of Appeals for the First Circuit. As reported in the Class Action Reporter on Dec. 5, 2018, Port Resources filed an appeal from a court ruling in the lawsuit. That appellate case is entitled Giguere v. Port Resources Inc., Case No. 18-2073. The Plaintiff alleges that the Defendant violated the Fair Labor Standards Act and Maine labor laws guaranteeing prompt payment of wages. Port Resources manages and provides staffing for 24 group homes and supervised apartments serving nearly 100 clients in residential neighborhoods across southern Maine. The briefing schedule in the Appellate Case states that Appearance form, Docketing Statement, and Transcript Report/Order form were due on December 12, 2018.[BN] Plaintiff-Appellant DAVID GIGUERE, on his own behalf and on behalf of all others similarly situated, is represented by: Peter Mancuso, Esq. Andrew Arthur Schmidt, Esq. ANDREW SCHMIDT LAW PLLC 997 India Street Portland, ME 04101-0000 Telephone: (207) 619-0884 E-mail: peter@maineworkerjustice.com andy@maineworkerjustice.com - and - Howard T. Reben, Esq. REBEN, BENJAMIN & MARCH 97 India St. P.O. Box 7060 Portland, ME 04112-0000 Telephone: (207) 772-5496 E-mail: hreben@rbmlawoffice.com Defendant-Appellee PORT RESOURCES INC. is represented by: Graydon Stevens, Esq. KELLY REMMEL & ZIMMERMAN 53 Exchange St. PO Box 597 Portland, ME 04112-0597 Telephone: (207) 775-1020 E-mail: gstevens@krz.com PPDAI GROUP: Rosen Law Firm Files Securities Class Action --------------------------------------------------------- Rosen Law Firm, a global investor rights law firm, on Nov. 27 disclosed that it has filed a class action lawsuit on behalf of purchasers of the securities of PPDAI Group Inc. (NYSE: PPDF) pursuant and/or traceable to PPDAI's November 2017 Initial Public Offering ("IPO"). The lawsuit seeks to recover damages for PPDAI investors under the federal securities laws. To join the PPDAI class action, go to https://www.rosenlegal.com/cases-1419.html or call Phillip Kim, Esq. or Zachary Halper, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or zhalper@rosenlegal.com for information on the class action. NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN ONE. YOU MAY RETAIN COUNSEL OF YOUR CHOICE. YOU MAY ALSO REMAIN AN ABSENT CLASS MEMBER AND DO NOTHING AT THIS POINT. AN INVESTOR'S ABILITY TO SHARE IN ANY POTENTIAL FUTURE RECOVERY IS NOT DEPENDENT UPON SERVING AS LEAD PLAINTIFF. According to the lawsuit, defendants throughout the Class Period made false and/or misleading statements and/or failed to disclose that: (1) PPDAI was 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; (2) many of PPDAI's customers were using PPDAI-provided loans to repay existing loans they otherwise could not afford to repay, thereby inflating PPDAI's revenues and active borrower numbers and increasing the likelihood of defaults; (3) PPDAI was experiencing increasing delinquency rates, negatively affecting PPDAI's reserves; (4) PPDAI's purported "rapid growth" in the number and amount of loans had materially dropped off; (5) PPDAI was providing online loans to college students despite a government ban on the practice; (6) PPDAI was engaged in overly aggressive and improper collection practices; and (7) as a result of its improper lending, underwriting, and collection practices, PPDAI was subject to heightened risk of adverse actions by Chinese regulators. When the true details entered the market, the lawsuit claims that investors suffered damages. A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than January 25, 2019. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. If you wish to join the litigation, go to https://www.rosenlegal.com/cases-1419.html or to discuss your rights or interests regarding this class action, please contact Phillip Kim, Esq. or Zachary Halper, Esq. of Rosen Law Firm toll free at 866-767-3653 or via e-mail at pkim@rosenlegal.com or zhalper@rosenlegal.com. Rosen Law Firm -- http://www.rosenlegal.com-- represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. Rosen Law Firm was Ranked No. 1 by ISS Securities Class Action Services for number of securities class action settlements in 2017. The firm has been ranked in the top 3 each year since 2013. [GN] PROFESSIONAL ACCOUNT: Faces Lowenbien Class Suit for FDCPA Breach ----------------------------------------------------------------- A class action lawsuit has been filed against Professional Account Management, LLC. The case is styled as Yosef Lowenbien, on behalf of himself and all other similarly situated consumers, Plaintiff v. Professional Account Management, LLC, Defendant, Case No. 1:18-cv-06938 (E.D. N.Y., December 5, 2018). The lawsuit arises under the Fair Debt Collection Practices Act. Professional Account Management LLC provides data processing, payment, and collection services to municipalities and financial institutions. The company was founded in 1988 and is based in Milwaukee, Wisconsin. As of October 24, 2005, Professional Account Management LLC operates as a subsidiary of Reino International Pty Ltd.[BN] The Plaintiff is represented by: Adam Jon Fishbein, Esq. Adam J. Fishbein, P.C. 735 Central Avenue Woodmere, NY 11598 Tel: (516) 668-6945 Email: fishbeinadamj@gmail.com RCKC CORPORATION: Does not Properly Pay Employees, Suit Says ------------------------------------------------------------ Norma Marquez, individually and on behalf of a class of persons similarly situated, Plaintiffs, v. RCKC Corporation, d/b/a McDonalds 47th & Cicero; RKMK Corp., d/b/a McDonald's Crete; Kenzcon Corp., d/b/a McDonald's South Holland; Konnz Corp., d/b/a McDonald's Burbank; Connz Corp.; R.K. Kenzie Corp., d/b/a McDonald's 64th & Cicero; Zeeken Corp., d/b/a McDonald's Evergreen Park; Conn Group Inc.; Jacmar Corp.; Randy Conn; McDonald's USA, LLC; and McDonald's Corporation, Defendants, Case No. 1:18-cv-07977 (N.D. Ill., December 04, 2018) seeks to recover unpaid wages, unpaid straight time and overtime compensation, liquidated damages, statutory penalties, attorneys' fees, and costs from Defendants, pursuant to the Fair Labor Standards Act and the Illinois Minimum Wage Law. The Defendants have employed Plaintiffs to perform work for Defendants, as "non-exempt" hourly employees. Plaintiffs were hired by and employed by Defendants with the agreement between them that Plaintiffs will be paid an agreed upon hourly rate of pay for all time worked for Defendants. However, the Defendants failed to pay Plaintiffs, and all other non-exempt hourly employees, for all of the time Plaintiffs spent working for Defendants, even though such time was required and/or permitted by Defendants, says the complaint. Specifically, the Defendants failed to pay Plaintiffs for time worked prior to the start time of the scheduled shift of each employee, notwithstanding that Plaintiffs were required to and in fact did work for Defendants for up to an hour of time (and sometimes more), prior to their scheduled shift start time, each day they were assigned to work; and, in addition, Defendants failed to pay Plaintiffs for time worked following their scheduled shift. The Defendants also often failed to provide Plaintiffs with two fifteen minute breaks during their daily shifts, at least two to three times per week. Plaintiffs often worked more than seven and one-half continuous hours for Defendants during their shifts; and did so without any break permitted by Defendants. The Defendants likewise failed to provide Plaintiffs with a full meal break during many of Plaintiffs' shifts, even though Plaintiffs worked more than seven and a half continuous hours. The Defendants only recorded the time worked by Plaintiffs by recording the time when their scheduled shift began and ended; and frequently failed to record all of that time worked, adds the complaint. As a result of Defendants' practices, the Defendants benefited from reduced labor and payroll costs which, in turn, increased the earnings of Defendant Randy Conn and of all other Defendants, asserts the complaint. Plaintiff Norma Marquez is a resident and citizen of Chicago, Illinois and is an employee of Defendants. All of the Franchisee Defendants are active domestic Illinois corporations, and are, upon information and belief, owned by Defendant Randy Conn, who is also the president of and registered agent for each Franchisee Defendant. Jacmar Corp. is the managing entity of the Franchisee Defendants, and manages and acts as the parent organization of each of the Franchisee Defendants. Jacmar Corp. is also owned by Defendant Randy Conn, who is also its president. Randy Conn is a resident of Homewood, Illinois, within the Northern District of Illinois. McDonald's Corporation is a Delaware corporation, registered to do business in Illinois as a foreign corporation. McDonald's USA, LLC is a Delaware limited liability company, registered to do business in Illinois as a foreign limited liability company, managed by approximately 106 individuals, and, upon information and belief, operates as both a franchisor and owner-operator of McDonald's restaurants.[BN] The Plaintiff is represented by: Glen J. Dunn, Jr., Esq. Glen J. Dunn & Associates, Ltd. 221 North LaSalle Street, Suite 1414 Chicago, IL 60601 Phone: 312-546-5056 - and - Jeffrey Grant Brown, Esq. Jeffrey Grant Brown, P.C. 221 North LaSalle Street, Suite 1414 Chicago, IL 60601 Phone: 312-789-9700 RESULTS COMPANIES: Gibbs Seeks Wages for Off-the-Clock Work ----------------------------------------------------------- Ronald Gibbs and Bobbi Kazmierczak, individually, and on behalf of others similarly situated, Plaintiffs, v. The Results Companies, LLC, Defendant, Case No. 18-cv-00170, (N.D. Tex., November 27, 2018), seeks to recover unpaid overtime wages, unpaid wages, interest, liquidated damages, and attorneys' fees and costs under the Fair Labor Standards Act. Defendant is an international business processing outsourcing services provider that manages and operates call centers in more than 28 worldwide locations. Plaintiffs were employed by Results as hourly-paid Customer Service Representatives/Customer Advocates at its Wichita Falls, TX call center. They claim overtime for post-shift and pre-shift activities that were not captured by their time-keeping system. [BN] Plaintiff is represented by: Charles W. Branham, III, Esq. DEAN OMAR & BRANHAM, LLP 302 N. Market St., Suite 300 Dallas, TX 75202 Tel: (214) 722-5990 Fax: (214) 722-5991 Email: tbranham@dobllp.com - and - Jason T. Brown, Esq. BROWN, LLC Jersey City, NJ 07302 Tel: (877) 561-0000 Fax: (855) 582-5297 Email: jtb@jtblawgroup.com RISTORANTE LA BUCA: Wright Seeks to Certify Tipped Workers Class ---------------------------------------------------------------- The Plaintiff in the lawsuit captioned NICHOLAS J. WRIGHT, on behalf of himself and all others similarly situated v. RISTORANTE LA BUCA INC. d/b/a RISTORANTE LA BUCA; JEANIE GIULIANI; ANTHONY GIULIANI; and DOE DEFENDANTS 1-10, Case No. 2:18-cv-02207-MAK (E.D. Pa.), renews his motion to certify class pursuant to Rule 23 of the Federal Rules of Civil Procedure. The proposed class consists of: All current and former Tipped Employees who have worked for Defendant in the Commonwealth of Pennsylvania at any point from May 25, 2015 through the present.[CC] The Plaintiff is represented by: Gerald D. Wells, III, Esq. Stephen E. Connolly, Esq. CONNOLLY WELLS & GRAY, LLP 2200 Renaissance Boulevard, Suite 275 King of Prussia, PA 19406 Telephone: (610) 822-3700 Facsimile: (610) 822-3800 E-mail: gwells@cwglaw.com sconnolly@cwglaw.com - and - Eric Rayz, Esq. KALIKHMAN & RAYZ, LLC 1051 County Line Road, Unit 102 Huntingdon Valley, PA 19006 Telephone: (215) 364-5030 E-mail: erayz@kalraylaw.com SAMSUNG ELECTRONICS: Faces Mercado Suit Over False Ads ------------------------------------------------------ Jacob Mercado, individually and on behalf of all others similarly situated, Plaintiff, v. Samsung Electronics America, Inc.; Digital River, Inc. dba Global Commerce CE; and Does 1-10, Defendants, Case No. 5:18-cv-02557 (C.D. Cal., December 6, 2018) is brought against the Defendant to stop Defendant's practice of falsely advertising its products and payment services, and to obtain redress for a class of consumers who changed position, within the applicable statute of limitations period, as a result of Defendant's false and misleading advertisements. The Defendants represents that products purchased on the website, Samsung.com, will charge consumers a certain price, when this is in fact false, says the complaint. Defendants' misrepresentations to Plaintiff and others similarly situated caused them to purchase or attempt to purchase the electronic products from Defendants' website, which Plaintiff and others similarly situated would not have purchased or attempted to purchase absent these misrepresentations by Defendant and its employees. In so doing, Defendant has violated California consumer protection statutes, including the Unfair Competition Law, False Advertising Law, the Consumer Legal Remedies Act, and the Electronic Funds Transfer Act, it says. Plaintiff, Jacob Mercado, is a natural person residing in San Bernardino County in the state of California, and is a "consumer". Samsung Electronics America, Inc. is a company engaged in the business of producing and selling electronics products and services to consumers. Digital River, Inc. dba Global Commerce CE, is a company engaged in the business of providing payment transactional services to consumers and businesses. Doe 1 through 20, inclusive, are currently unknown to Plaintiff, who therefore sues such Defendants by fictitious names.[BN] The Plaintiff is represented by: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. Meghan E. George, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St., Suite 780 Woodland Hills, CA 91367 Phone: 323-306-4234 Fax: 866-633-0228 Email: tfriedman@toddflaw.com abacon@toddflaw.com mgeorge@toddflaw.com SANTA CLARA, CA: Consent Decree in Cole Has Prelim OK ----------------------------------------------------- In the case, DAVID COLE, et al., Plaintiffs, v. COUNTY OF SANTA CLARA, et al., Defendants, Case No. 16-CV-06594-LHK (N.D. Cal.), Judge Lucy H. Koh of the U.S. District Court for the Northern District of California, San Jose Division, granted the parties' Joint Motion for Preliminary Approval of Consent Decree and Notice to the Class. The parties have entered into a Consent Decree that was filed with their Joint Motion on Nov. 13, 2018, which would settle all claims in the case. The parties also submitted a proposed Notice to the class attached to the Consent Decree. On Dec. 6, 2018, the Court held a Preliminary Approval hearing. On the same day, the Defendant filed a declaration affirming that it provided the requisite Class Action Fairness Act ("CAFA") of 2005 notice. On Dec. 7, 2018, the Plaintiff filed a declaration that attached as Exhibit 1 a corrected version of the Consent Decree that fixed the typographical error. Additionally, the corrected Consent Decree included as Exhibit B the revised Notice that updated the original proposed Notice to require that objectors include their name, address, and signature in any objections and added language that the Court may only approve or deny the Consent Decree and cannot change the terms of the Consent Decree. The corrected Consent Decree and the revised Notice are the operative documents that the Court approves. After reviewing all of the pleadings, records, and papers on file, Judge Koh finds that the action is determined to be properly maintained as a class action pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure. The Court has already certified a class defined as all individuals with mobility disabilities who are now, or will be in the future, incarcerated in the Santa Clara County Jails, which consist of three facilities: (1) the Santa Clara County Main Jail Complex ("Main Jail"), consisting of Main Jail North and Main Jail South, in San Jose, California; (2) facilities for male inmates at the Elmwood Correctional Complex in Milpitas, California; and (3) the Elmwood Complex Women's Facility in Milpitas, California. She also finds that the corrected Consent Decree falls within the range of possible approval and is sufficiently fair to warrant the dissemination of notice to the class members apprising them of the settlement. She granted the corrected Consent Decree preliminary approval. The Judge directed that by Jan. 22, 2019, the revised Notice will be disseminated to the Class. The revised Notice and corrected Consent Decree will be made available on the Class Counsel's websites for 30 days. A copy of the corrected Consent Decree will be available in all intake, housing, and programming units of the Jails in English and will be made available upon request in Spanish and Vietnamese. The inmates may request a copy of the corrected Consent Decree by completing an Inmate Request Form and Custody Staff will provide the inmate with a copy within three days of the request. The expense of giving notice to the class members will be paid by the County. The dissemination of the revised Notice as provided is authorized and approved. The County must file and serve on Class Counsel a declaration affirming that notice was published as required in the order. Any member of the class may object to the corrected Consent Decree by Feb. 28, 2019, more than 35 days after the Jan. 22, 2019 deadline for posting of notice at the Jails and on the Class Counsel's webpage. The class Counsel and/or the County, as appropriate, will respond to any timely-filed objections not later than March 14, 2019. Judge Koh will consider objections when deciding whether to approve the corrected Consent Decree. Objections must be postmarked no later than Feb. 28, 2019, and sent to the following address: Clerk of the Court United States District Court Northern District of California 280 South 1st Street San Jose, CA 95113 A final approval hearing pursuant to Rule 23(e), Federal Rules of Civil Procedure, is set for March 21, 2019 at 1:30 p.m. The motion for final approval and the motion for attorneys' fees and costs will be filed by Jan. 14, 2019, and the replies in support of final approval and of attorney's fees and costs will be filed by March 14, 2019. A full-text copy of the Court's Dec. 7, 2018 Order is available at https://is.gd/bbZBZ2 from Leagle.com. David Cole, Leroy Benjamin, Erasmo Flores, Jr., Robert Phillips & Brandon Williams, Plaintiffs, represented by Gay Crosthwait Grunfeld -- ggrunfeld@rbgg.com -- Rosen Bien Galvan and Grunfeld LLP, Kara Jane Janssen -- kjanssen@rbgg.com -- Rosen Bien Galvan & Grunfeld, Lisa Adrienne Ells -- lells@rbgg.com -- Rosen Bien Galvan & Grunfeld LLP, Marc J. Shinn-Krantz, Rosen Bien Galvan & Grunfeld, LLP & Michelle Brooke Iorio -- miorio@dralegal.org -- Disability Rights Advocates. County of Santa Clara, Defendant, represented by Aryn Paige Harris -- aryn.harris@cco.sccgov.org -- Office of County Cousel, Santa Clara, Douglas Michael Press, Office of the County Counsel & Emily L. Fedman, Office of the County Counsel. SENDGRID INC: Faces Rosenblait Suit Over Sale to Twilio Inc. ------------------------------------------------------------ Jordan Rosenblait, Individually and On Behalf of All Others Similarly Situated, Plaintiff, v. SendGrid Inc., Warren Adelman, Ajay Agarwal, Fred Ball, Byron Deeter, Sameer Dholakia, Anne Raimondi, Hilary Schneider, Sri Viswanath, Twilio Inc., and Topaz Merger Subsidiary, Inc., Defendants, Case No. 1:18-cv-01931-UNA (D. Del., December 5, 2018) is a complaint asserting violation of the Securities Exchange Act of 1934. This action stems from a proposed transaction announced on October 15, 2018, pursuant to which SendGrid, Inc. will be acquired by Twilio Inc. and Topaz Merger Subsidiary, Inc. On October 15, 2018, SendGrid's Board of Directors caused the Company to enter into an agreement and plan of merger with Twilio. Pursuant to the terms of the Merger Agreement, SendGrid's stockholders will receive 0.485 shares of Parent common stock for each share of SendGrid they own. On November 21, 2018, defendants filed a Form S-4 Registration Statement with the United States Securities and Exchange Commission in connection with the Proposed Transaction. The Registration Statement omits material information with respect to the Proposed Transaction, which renders the Registration Statement false and misleading. Accordingly, plaintiff alleges that defendants violated the Securities Exchange Act of 1934 in connection with the Registration Statement, says the complaint. Plaintiff is, and has been continuously throughout all times relevant hereto, the owner of SendGrid common stock. SendGrid is a Delaware corporation and maintains its principal executive offices at 1801 California Street, Suite 500, Denver, Colorado 80202. SendGrid's common stock is traded on the NYSE under the ticker symbol "SEND". Warren Adelman, Ajay Agarwal, Fred Ball, Byron Deeter, Sameer Dholakia, Anne Raimondi, Hilary Schneider, and Sri Viswanath are directors of the Company.[BN] The Plaintiff is represented by: Seth D. Rigrodsky, Esq. Brian D. Long, Esq. Gina M. Serra, Esq. RIGRODSKY & LONG, P.A. 300 Delaware Avenue, Suite 1220 Wilmington, DE 19801 Phone: (302) 295-5310 Facsimile: (302) 654-7530 Email: sdr@rl-legal.com bdl@rl-legal.com gms@rl-legal.com - and – Richard A. Maniskas, Esq. RM LAW, P.C. 1055 Westlakes Drive, Suite 300 Berwyn, PA 19312 Phone: (484) 324-6800 Facsimile: (484) 631-1305 Email: rm@maniskas.com SIGNET JEWELERS: Bid to Dismiss N.Y. Consolidated Suit Denied ------------------------------------------------------------- Signet Jewelers Limited said in its Form 10-Q Report filed with the Securities and Exchange Commission on December 7, 2018, for the quarterly period ended November 3, 2018, that the court overseeing the consolidated New York class action lawsuit has denied the defendants' motion to dismiss. In August 2016, two alleged Company shareholders each filed a putative class action complaint in the United States District Court for the Southern District of New York against the Company and its then-current Chief Executive Officer and current Chief Financial Officer (Nos. 16-cv-6728 and 16-cv-6861, the "S.D.N.Y. cases"). On September 16, 2016, the Court consolidated the S.D.N.Y. cases under case number 16-cv-6728. On April 3, 2017, the plaintiffs filed a second amended complaint, purportedly on behalf of persons that acquired the Company's securities on or between August 29, 2013, and February 27, 2017, naming as defendants the Company, its then-current and former Chief Executive Officers, and its current and former Chief Financial Officers. The second amended complaint alleged that the defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 by, among other things, misrepresenting the Company's business and earnings by (i) failing to disclose that the Company was allegedly having issues ensuring the safety of customers' jewelry while in the Company's custody for repairs, which allegedly damaged customer confidence; (ii) making misleading statements about the Company's credit portfolio; and (iii) failing to disclose reports of sexual harassment allegations that were raised by claimants in an ongoing pay and promotion gender discrimination class arbitration (the "Arbitration"). The second amended complaint alleged that the Company's share price was artificially inflated as a result of the alleged misrepresentations and sought unspecified compensatory damages and costs and expenses, including attorneys' and experts' fees. In March 2017, two other alleged Company shareholders each filed a putative class action complaint in the United States District Court for the Northern District of Texas against the Company and its then-current and former Chief Executive Officers (Nos. 17-cv-875 and 17-cv-923, the "N.D. Tex. cases"). Those complaints were nearly identical to each other and alleged that the defendants' statements concerning the Arbitration violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. The N.D. Tex. cases were subsequently transferred to the Southern District of New York and consolidated with the S.D.N.Y. cases (the "Consolidated Action"). On July 27, 2017, the Court appointed a lead plaintiff and lead plaintiff's counsel in the Consolidated Action. On August 3, 2017, the Court ordered the lead plaintiff in the Consolidated Action to file a third amended complaint by September 29, 2017. On September 29, 2017, the lead plaintiff filed a third amended complaint that covered a putative class period of August 29, 2013, through May 24, 2017, and that asserted substantially similar claims to the second amended complaint, except that it omitted the claim based on defendants' alleged misstatements concerning the security of customers' jewelry while in the Company's custody for repairs. The defendants moved to dismiss the third amended complaint on December 1, 2017. On December 4, 2017, the Court entered an order permitting the lead plaintiff to amend its complaint as of right by December 22, 2017, and providing that the lead plaintiff would not be given any further opportunity to amend its complaint to address the issues raised in the defendants' motion to dismiss. On December 15, 2017, Nebil Aydin filed a putative class action complaint in the United States District Court for the Southern District of New York against the Company and its current Chief Executive Officer and Chief Financial Officer (No. 17-cv-9853). The Aydin complaint alleged that the defendants made misleading statements regarding the Company's credit portfolio between August 24, 2017, and November 21, 2017, in violation of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, and sought unspecified compensatory damages and costs and expenses, including attorneys' and experts' fees. On January 7, 2018, the Aydin case was consolidated into the Consolidated Action. On December 22, 2017, the lead plaintiff in the Consolidated Action filed its fourth amended complaint, which asserted substantially the same claims as its third amended complaint for an expanded class period of August 28, 2013, through December 1, 2017. On January 26, 2017, the defendants moved to dismiss the fourth amended complaint. This motion was fully briefed as of March 9, 2018. On March 20, 2018, the Court granted the lead plaintiff leave to file a fifth amended complaint. On March 22, 2018, the lead plaintiff in the Consolidated Action filed its fifth amended complaint which asserts substantially the same claims as its fourth amended complaint for an expanded class period of August 29, 2013, through March 13, 2018. The prior motion to dismiss was denied as moot. On November 26, 2018, the Court denied the defendants' motion to dismiss. Signet Jewelers Limited engages in the retail sale of diamond jewelry, watches, and other products in the United States, Canada, the United Kingdom, the Republic of Ireland, and the Channel Islands. Signet Jewelers Limited was founded in 1950 and is based in Hamilton, Bermuda. SIGNET JEWELERS: Still Awaits Court Decision on Claimants' Appeal ----------------------------------------------------------------- Signet Jewelers Limited said in its Form 10-Q Report filed with the Securities and Exchange Commission on December 7, 2018, for the quarterly period ended November 3, 2018, that Signet Jewelers, Inc., a company subsidiary, still awaits the decision of the U.S. Court of Appeals for the Second Circuit on claimants' class action appeal. In March 2008, a group of private plaintiffs (the "Claimants") filed a class action lawsuit for an unspecified amount against SJI, a subsidiary of Signet, in the US District Court for the Southern District of New York alleging that US store-level employment practices are discriminatory as to compensation and promotional activities with respect to gender. In June 2008, the District Court referred the matter to private arbitration where the Claimants sought to proceed on a class-wide basis. The Claimants filed a motion for class certification and SJI opposed the motion. On February 2, 2015, the arbitrator issued a Class Determination Award in which she certified for a class-wide hearing Claimants' disparate impact declaratory and injunctive relief class claim under Title VII, with a class period of July 22, 2004 through date of trial for the Claimants' compensation claims and December 7, 2004 through date of trial for Claimants' promotion claims. The arbitrator otherwise denied Claimants' motion to certify a disparate treatment class alleged under Title VII, denied a disparate impact monetary damages class alleged under Title VII, and denied an opt-out monetary damages class under the Equal Pay Act. On February 9, 2015, Claimants filed an Emergency Motion To Restrict Communications With The Certified Class And For Corrective Notice. SJI filed its opposition to Claimants' emergency motion on February 17, 2015, and a hearing was held on February 18, 2015. Claimants' motion was granted in part and denied in part in an order issued on March 16, 2015. Claimants filed a Motion for Reconsideration Regarding Title VII Claims for Disparate Treatment in Compensation on February 11, 2015, which SJI opposed. April 27, 2015, the arbitrator issued an order denying the Claimants' Motion. SJI filed with the US District Court for the Southern District of New York a Motion to Vacate the Arbitrator's Class Certification Award on March 3, 2015, which Claimants opposed. On November 16, 2015, the US District Court for the Southern District of New York granted SJI's Motion to Vacate the Arbitrator’s Class Certification Award in part and denied it in part. On December 3, 2015, SJI filed with the United States Court of Appeals for the Second Circuit SJI's Notice of Appeal of the District Court's November 16, 2015 Opinion and Order. On November 25, 2015, SJI filed a Motion to Stay the AAA Proceedings while SJI appeals the decision of the US District Court for the Southern District of New York to the United States Court of Appeals for the Second Circuit, which Claimants opposed. The arbitrator issued an order denying SJI's Motion to Stay on February 22, 2016.SJI filed its Brief and Special Appendix with the Second Circuit on March 16, 2016. The matter was fully briefed and oral argument was heard by the U.S. Court of Appeals for the Second Circuit on November 2, 2016. On April 6, 2015, Claimants filed in the AAA Claimants' Motion for Clarification or in the Alternative Motion for Stay of the Effect of the Class Certification Award as to the Individual Intentional Discrimination Claims, which SJI opposed. On June 15, 2015, the arbitrator granted the Claimants' motion. On March 6, 2017, Claimants filed Claimants' Motion for Conditional Certification of Claimants’ Equal Pay Act Claims and Authorization of Notice, which SJI opposed The arbitrator heard oral argument on Claimants' Motion on December 18, 2015 and, on February 29, 2016, issued an Equal Pay Act Collective Action Conditional Certification Award and Order Re Claimants' Motion For Tolling Of EPA Limitations Period, conditionally certifying Claimants' Equal Pay Act claims as a collective action, and tolling the statute of limitations on EPA claims to October 16, 2003 to ninety days after notice issues to the putative members of the collective action. SJI filed in the AAA a Motion To Stay Arbitration Pending The District Court's Consideration Of Respondent's Motion To Vacate Arbitrator's Equal Pay Act Collective Action Conditional Certification Award And Order Re Claimants' Motion For Tolling Of EPA Limitations Period on March 10, 2016. SJI filed in the AAA a Renewed Motion To Stay Arbitration Pending The District Court's Resolution Of Sterling's Motion To Vacate Arbitrator's Equal Pay Act Collective Action Conditional Certification Award And Order Re Claimants' Motion For Tolling Of EPA Limitations Period on March 31, 2016, which Claimants opposed. On April 5, 2016, the arbitrator denied SJI's Motion. On March 23, 2016 SJI filed with the US District Court for the Southern District of New York a Motion To Vacate The Arbitrator's Equal Pay Act Collective Action Conditional Certification Award And Order Re Claimants' Motion For Tolling Of EPA Limitations Period, which Claimants opposed. SJI's Motion was denied on May 22, 2016. On May 31, 2016, SJI filed a Notice Of Appeal of Judge Rakoff's opinion and order to the Second Circuit Court of Appeals, which Claimant's opposed. On June 1, 2017, the Second Circuit Court of Appeals dismissed SJI's appeal for lack of appellate jurisdiction. Claimants filed a Motion For Amended Class Determination Award on November 18, 2015, and on March 31, 2016 the arbitrator entered an order amending the Title VII class certification award to preclude class members from requesting exclusion from the injunctive and declaratory relief class certified in the arbitration. The arbitrator issued a Bifurcated Case Management Plan on April 5, 2016, and ordered into effect the parties' Stipulation Regarding Notice Of Equal Pay Act Collective Action And Related Notice Administrative Procedures on April 7, 2016. SJI filed in the AAA a Motion For Protective Order on May 2, 2016, which Claimants opposed. The matter was fully briefed and oral argument was heard on July 22, 2016. The motion was granted in part on January 27, 2017. Notice to EPA collective action members was issued on May 3, 2016, and the opt-in period for these notice recipients closed on August 1, 2016. Approximately, 10,314 current and former employees submitted consent forms to opt in to the collective action; however, some have withdrawn their consents. The number of valid consents is disputed and yet to be determined. SJI believes the number of valid consents to be approximately 9,124. On July 24, 2017, the United States Court of Appeals for the Second Circuit issued its unanimous Summary Order that held that the absent class members "never consented" to the Arbitrator determining the permissibility of class arbitration under the agreements, and remanded the matter to the District Court to determine whether the Arbitrator exceeded her authority by certifying the Title VII class that contained absent class members who had not opted in the litigation. On August 7, 2017, SJI filed its Renewed Motion to Vacate the Class Determination Award relative to absent class members with the District Court. The matter was fully briefed and an oral argument was heard on October 16, 2017. On January 15, 2018, District Court granted SJI's Motion finding that the Arbitrator exceeded her authority by binding non-parties (absent class members) to the Title VII claim. The District Court further held that the RESOLVE Agreement does not permit class action procedures, thereby, reducing the Claimants in the Title VII matter from 70,000 to 254. Claimants dispute that the number of claimants in the Title VII is 254. On January 18, 2018, the Claimants filed a Notice of Appeal with the United States Court of Appeals for the Second Circuit. The appeal was fully briefed and oral argument before the Second Circuit occurred on May 7, 2018. SJI currently awaits the Second Circuit's decision on this appeal. On November 10, 2017, SJI filed in the arbitration motions for summary judgment, and for decertification, of Claimants' Equal Pay Act and Title VII promotions claims. On January 30, 2018, oral argument on SJI's motions was heard. On January 26, 2018, SJI filed a Motion to Vacate The Equal Pay Act Collective Action Award And Tolling Order asserting that the Arbitrator exceeded her authority by conditionally certifying the Equal Pay Act claim and allowing the absent claimants to opt-in the litigation. On March 12, 2018, the Arbitrator denied SJI's Motion to Vacate The Equal Pay Act Collective Action Award and Tolling Order. SJI still has a pending motion seeking decertification of the EPA Collective Action before the Arbitrator. On March 19, 2018, the Arbitrator issued an Order partially granting SJI's Motion to Amend the Arbitrator's November 2, 2017, Bifurcated Seventh Amended Case Management Plan resulting in a continuance of the May 14, 2018 trial date. A new trial date has not been set. SJI denies the allegations of the Claimants and has been defending the case vigorously. At this point, no outcome or possible loss or range of losses, if any, arising from the litigation is able to be estimated. Signet Jewelers Limited engages in the retail sale of diamond jewelry, watches, and other products in the United States, Canada, the United Kingdom, the Republic of Ireland, and the Channel Islands. Signet Jewelers Limited was founded in 1950 and is based in Hamilton, Bermuda. SK 1448 INC: Maldonado Sues Over Unpaid Minimum, Overtime Wages --------------------------------------------------------------- Miguel Angel Maldonado, individually and on behalf of others similarly situated, Plaintiff, v. SK 1448 Inc. (d/b/a Namaste), Parminderjit Singh, John Doe (a.k.a. Lino), and Ahmed Doe, Defendants, Case No. 2:18-cv-10157 (S.D. N.Y., December 6, 2018) seeks unpaid minimum and overtime wages pursuant to the Fair Labor Standards Act of 1938 and for violations of the N.Y. Labor Law and the "spread of hours" and overtime wage orders of the New York Commissioner of Labor including applicable liquidated damages, interest, attorneys' fees and costs. Plaintiff Maldonado was employed by Defendants as a delivery worker. However, he was required to spend a considerable part of his work day performing non-tipped duties, including but not limited to dishwashing. Plaintiff Maldonado 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 complaint asserts. The Defendants failed to maintain accurate recordkeeping of the hours worked, failed to pay Plaintiff Maldonado appropriately for any hours worked, either at the straight rate of pay or for any additional overtime premium. The Defendants also failed to pay Plaintiff Maldonado the required "spread of hours" pay for any day in which he had to work over 10 hours a day; and Defendants repeatedly failed to pay Plaintiff Maldonado wages on a timely basis, says the complaint. Plaintiff Miguel Angel Maldonado is an adult individual residing in Bronx County, New York. Plaintiff Maldonado is a former employee of Defendants SK 1448 Inc. (d/b/a Namaste), Parminderjit Singh, John Doe (a.k.a. Lino), and Ahmed Doe. Plaintiff Maldonado was employed by Defendants at Namaste from approximately May 2018 until on or about November 21, 2018. SK 1448 Inc. (d/b/a Namaste) is a domestic corporation organized and existing under the laws of the State of New York. Upon information and belief, it maintains its principal place of business at 1448 1st Avenue, New York, NY 10021. Parminderjit Singh is an individual engaging (or who was engaged) in business in this judicial district during the relevant time period. Defendant Parminderjit Singh is sued individually in his capacity as owner, officer and/or agent of Defendant Corporation. John Doe (a.k.a. Lino) is an individual engaging (or who was engaged) in business in this judicial district during the relevant time period. John Doe is sued individually in his capacity as owner, officer and/or agent of Defendant Corporation. Ahmed Doe is an individual engaging (or who was engaged) in business in this judicial district during the relevant time period. Defendant Ahmed Doe is sued individually in his capacity as a manager of Defendant Corporation.[BN] The Plaintiff is represented by: Michael Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 4510 New York, NY 10165 Phone: (212) 317-1200 Facsimile: (212) 317-1620 SPECIALIZED LOAN: Forbes Suit Alleges FDCPA Violations ------------------------------------------------------ Carlton Forbes, on behalf of himself and all others similarly situated v. Specialized Loan Servicing, LLC, Case No. 1:18-cv-06561 (E.D. N.Y., November 17, 2018), is brought against the Defendant for violations of the Fair Debt Collection Practices Act. The Plaintiff alleges that the Defendant made false, deceptive and misleading statement that the Defendant may report the Plaintiff's account to credit bureaus. The Plaintiff is a resident in the District of New York and owes a financial obligation. The Defendant is a debt collector. [BN] The Plaintiff is represented by: Novlette R. Kidd, Esq. FAGENSON & PUGLISI, PLLC 450 Sevent Avenue, Suite 704 New York, NY 10123 Tel: (212) 268-2128 E-mail: nkidd@fagensonpuglisi.com SRC ENERGY: Schneider Suit Seeks to Recoup Unpaid Wages ------------------------------------------------------- Larry Schneider, individually and on behalf of all others similarly situated, Plaintiff, v. SRC Energy, Inc., Defendant, Case No 1:18-cv-03117-STV (D. Colo., December 4, 2018) is a collective action seeking to recover unpaid overtime compensation owed to Plaintiff, individually and on behalf of all current and former day-rate workers, who performed work for Defendant associated with monitoring and maintaining oil and gas wells throughout the United States during the three-year period before the filing of this Complaint up to the date the court authorizes notice. The Defendant required Plaintiff Larry Schneider to work more than 40 hours in a workweek as a drilling consultant. Plaintiff is a day-rate employee who provides on-site consulting services at oil and gas wells. Defendant misclassified Plaintiff as an independent contractor and as such failed to pay him overtime at the mandated one and one-half times his regular rate, says the complaint. The Defendant's conduct violates the Fair Labor Standards Act, which requires non-exempt employees to be compensated for all hours in excess of 40 in a workweek at one and one-half times their regular rate, it adds. Plaintiff Larry Schneider is an individual residing in Weld County, Colorado. Plaintiff performed work for Defendant in Colorado for almost a year and a half. SRC Energy, Inc. is a domestic corporation doing business throughout the United States including Colorado.[BN] The Plaintiff is represented by: Galvin B. Kennedy, Esq. KENNEDY HODGES, L.L.P. 4409 Montrose Blvd., Ste. 200 Houston, TX 77006 Phone: (713) 523-0001 Facsimile: (713) 523-1116 Email: gkennedy@kennedyhodges.com ST JUDE: Third-Party Funding Agreement Gets Conditional Approval ---------------------------------------------------------------- Craig Lockwood, Esq. -- clockwood@osler.com -- and Vinayak Mishra, Esq. -- vmishra@osler.com -- of Osler Hoskin & Harcourt LLP, in an article for Lexology, report that the Ontario Divisional Court in Houle v. St. Jude Medical Inc. marks yet another development in the emerging law surrounding the role of third party… The Ontario Divisional Court in Houle v. St. Jude Medical Inc. marks yet another development in the emerging law surrounding the role of third party litigation funding agreements in Canadian class proceedings. In the case, the Divisional Court upheld Justice Perell's qualified approval of a novel third party litigation funding agreement, which included the following: -- Approval of the third party funder's recovery of 10% of the plaintiff's award (if any), -- Amendment of the agreement to provide that the third party had to seek court approval after the end of the case for any further compensation, and -- Deletion of parts of the agreement that permitted the third party funder to withdraw its funding. The Divisional Court's ruling represents a further evolution in the developing battle ground surrounding third party funding agreements in the context of class proceedings, in respect of which we have previously written (in addition to our commentary from a defendant's perspective, found here and here). Background In 2017, the plaintiffs, Shirley and Roland Houle brought a class action against the defendants, St Jude Medical Canada, Inc. and St Jude Medical Inc. alleging they negligently designed and manufactured cardiac defibrillator devices that were surgically implanted in the proposed class members. Prior to applying for class certification, the plaintiffs asked the court to approve its third party funding agreement with Bentham IMF Capital Limited. Unlike many third party funding agreements, Bentham agreed to pay 50% of the plaintiff's counsels' fee on a real time basis throughout the case. The agreement also stipulated that Bentham would receive 20%-25% of the plaintiff's recovery. This is much more than the typical 10% often seen in these types of agreements. On August 29, 2017, Justice Perell approved the litigation funding agreement subject to certain key amendments. The danger of potential overcompensation The Divisional Court accepted Justice Perell's decision to pre-approve Bentham's recovery of 10% of the plaintiff's potential recovery, but to wait until the end of the case before determining if Bentham should be paid any additional amount (i.e., the additional 10-15% recovery contemplated by the terms of the original agreement). In so doing, the Divisional Court expressed concern that Bentham's compensation would be uncapped and not subject to any further court scrutiny. In this regard, it was noted that the eventual fee could prove to be unfair in the event that: 1. The parties overestimated the risk that the plaintiffs would not succeed, and 2. The plaintiffs or class counsel caved to Bentham's pressure to settle. Bentham argued that parties who receive the benefit of independent legal advice should be able to make commercial decisions. However, the Divisional Court reasoned that the protection of the interests of the 8,000 other class members trumped any such right. Similarly, the Divisional Court rejected the argument that Bentham needed certainty on its return, given the high level of uncertainty throughout the agreement. Removal of Bentham's right to unilaterally terminate The Divisional Court also accepted Justice Perell's decision to remove Bentham's right to withdraw funding without court approval. The Divisional Court was concerned with the various litigation covenants which stated that the plaintiffs and class counsel would pursue an efficient, affordable, and proportionate resolution of the proceedings. The Divisional Court worried that Bentham could threaten to withdraw its funding based on a perceived breach of any of these types of covenants. Rather than remove these terms, Justice Perell limited Bentham's termination rights. Justice Perell did note that these type of covenants may be preferable where the representative plaintiff has "little or no skin in the action" and is really only motivated by money. However, this was not such a case. Take-aways The decision illustrates the uncertainty that continues to surround the nature and scope of third party funding agreements in the context of class proceedings, and demonstrates the courts' willingness to engage in a detailed review of any such agreement before approving its terms. [GN] STEEL WORLD: Hernandez Suit Seeks to Recover Unpaid Overtime ------------------------------------------------------------ Alonso Ramirez Hernandez and all others similarly situated under 29 U.S.C. 216(b), Plaintiffs, vs. The Steel World Corp., Jose L Villela and Onel Hernandez, Defendants, Case No. 18-cv-24930, (S.D. Fla., November 27, 2018), Defendants, requests compensatory and liquidated damages and reasonable attorney's fees and costs pursuant to the Fair Labor Standards Act for unpaid overtime, liquidated damages, prejudgment interest and any and all other relief. Hernandez worked for Steel World as a welder from on or about June 10, 2018 through on or about November 25, 2018. He worked an average of 10 unpaid overtime hours a week, loading and unloading tools and equipment on and off trucks and travelling from different jobsites. [BN] The Plaintiff is represented by: J.H. Zidell, Esq. J.H. ZIDELL, P.A. 300 71st Street, Suite 605 Miami Beach, FL 33141 Tel: (305) 865-6766 Fax: (305) 865-7167 Email: zabogado@aol.com STERN & STERN: Faces Liantonio Suit Under FDCA in E.D. New York --------------------------------------------------------------- A debt collection law firm is facing a class action lawsuit under Fair Debt Collection Act. The case is styled as Nicola Liantonio, on behalf of himself and all other similarly situated consumers, Plaintiff v. Stern & Stern, P.C., Defendant, Case No. 1:18-cv-06876 (E.D. N.Y., December 3, 2018). STERN & STERN P.C. is a debt collection law firm in Wantagh, New York.[BN] The Plaintiff is represented by: Adam Jon Fishbein, Esq. Adam J. Fishbein, P.C. 735 Central Avenue Woodmere, NY 11598 Tel: (516) 668-6945 Email: fishbeinadamj@gmail.com STITCH FIX: 3 TV Advertising Class Suits Filed in California ------------------------------------------------------------ Stitch Fix, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on December 11, 2018, for the quarterly period ended October 27, 2018, that the company has been named as defendant in three putative class action suits in the Northern District of California and expects the three lawsuits to be consolidated into one. Three putative class action lawsuits alleging violations of the federal securities laws were filed on October 11 and 26, and November 16, 2018, in the U.S. District Court for the Northern District of California, naming as defendants the Company and certain of its officers. Stitch Fix said, "The three lawsuits make the same allegations of violations of the Securities Exchange Act of 1934 by us and our officers for allegedly making materially false and misleading statements regarding our active client growth and strategy with respect to television advertising between June 2018 and October 2018." The plaintiffs seek unspecified monetary damages and other relief. The company expects the three lawsuits to be consolidated into one. Stitch Fix said, "There have been no other material changes to our commitments and contingencies as disclosed in our 2018 Annual Report." Stitch Fix, Inc. sells a range of apparel, shoes, and accessories through its Website and mobile app in the United States. It offers denim, dresses, blouses, skirts, shoes, jewelry, and handbags for men, women, and kids under the Stitch Fix brand. The company was formerly known as rack habit inc. and changed its name to Stitch Fix, Inc. in October 2011. Stitch Fix, Inc. was founded in 2011 and is headquartered in San Francisco, California. SUTTELL & HAMMER: Duffer Disputes Collection Letter --------------------------------------------------- Wayne Duffer, and all others similarly situated, Plaintiffs, v. Suttell & Hammer, P.S. and Portfolio Recovery Associates, LLC, Defendants, Case No. 18-cv-00366 (E.D. Wash., November 27, 2018), seeks to pursue remedies under the Fair Debt Collection Practices Act, Washington Collection Agency Act and the Consumer Protection Act. Defendant is a collection agency that regularly conducts business in Eastern Washington. It attempted to collect a debt, via collection letter, that Duffer incurred on a Capital One credit card. However, it omitted any reference to the original account creditor, other than the last four digits of a sixteen-digit account number which Duffer did not recognize. [BN] Plaintiff is represented by: Kirk D. Miller, Esq. KIRK D. MILLER, P.S. 421 W. Riverside Avenue, Suite 660 Spokane, WA 99201 Tel: (509)413-1494 Fax: (509)413-1724 TEXAS: Abbott Appeals Decision in M.D. Suit to Fifth Circuit ------------------------------------------------------------ Defendants Greg Abbott, Courtney Phillips and Henry Whitman, Jr., filed an appeal from a court ruling in the lawsuit styled M.D., et al. v. Greg Abbott, et al., Case No. 2:11-CV-84, in the U.S. District Court for the Southern District of Texas, Corpus Christi. The nature of suit is stated as other civil rights. The appellate case is captioned as M.D., et al. v. Greg Abbott, et al., Case No. 18-41108, in the U.S. Court of Appeals for the Fifth Circuit.[BN] Plaintiffs-Appellees M. D., by next friend Sarah R. Stukenberg; Z. H., by next friend Carla B. Morrison; S. A., by next friend Javier Solis; A. M., by next friend Jennifer Talley; J. S., by next friend Anna J. Ricker; H. V., by next friend Anna J. Ricker; L. H., by next friend Estela C. Vasquez; C. H., by next friend Estela C. Vasquez; and A. R., by next friend Tom McKenzie, individually and on behalf of all other similarly situated, are represented by: Michael Kenneth Bartosz, Esq. Sara Michelle Bartosz, Esq. Stephen Andrew Dixon, Esq. Christina Wilson Remlin, Esq. CHILDREN'S RIGHTS, INCORPORATED 88 Pine Street New York, NY 10005 Telephone: (212) 683-2210 E-mail: sbartosz@childrensrights.org sdixon@childrensrights.org cremlin@childrensrights.org - and - Dori Kornfeld Goldman, Esq. Lonny Jacob Hoffman, Esq. Reagan William Simpson, Esq. Christian J. Ward, Esq. Richard Paul Yetter, Esq. YETTER COLEMAN, L.L.P. 811 Main Street 2 Houston Center Houston, TX 77002 Telephone: (713) 632-8027 E-mail: dgoldman@yettercoleman.com lhoffman@yettercoleman.com rsimpson@yettercoleman.com cward@yettercoleman.com pyetter@yettercoleman.com - and - Marcia Lowry, Esq. A BETTER CHILDHOOD 1095 Hardscrabble Road Chappaqua, NY 10514 Telephone: (844) 422-2425 E-mail: mlowry@childrensrights.org - and - Barry Frank McNeil, Esq. HAYNES & BOONE, L.L.P. 2323 Victory Avenue Dallas, TX 75219 Telephone: (214) 651-5580 E-mail: barry.mcneil@haynesboone.com Defendants-Appellants GREG ABBOTT, in his official capacity as Governor of the State of Texas; COURTNEY PHILLIPS, in her official capacity as Executive Commissioner of the Health and Human Services Commission of Texas; and HENRY WHITMAN, JR., in his official capacity as Commissioner of the Department of Family and Protective Services of the State of Texas, are represented by: Thomas A. Albright, Esq. OFFICE OF THE ATTORNEY GENERAL P.O. Box 12548 Capitol Station Austin, TX 78711-2548 Telephone: (512) 463-2798 E-mail: thomas.albright@texasattorneygeneral.gov - and - Andrew Bowman Stephens, Esq. OFFICE OF THE ATTORNEY GENERAL 300 W. 15th Street William P. Clements Building Austin, TX 78701 Telephone: (512) 463-2120 E-mail: andrew.stephens@texasattorneygeneral.gov TEXAS: Rodriguez Sues Over License Suspension Scheme ---------------------------------------------------- Graciela Rodriguez, Charles Stevens, Khalid Salahuddin, and Nathan Alexander, on behalf of themselves and others similarly situated, Plaintiffs, v. Steven Mach, in his official capacity as Chairman of the Texas Department of Public Safety Commission; Steven McCraw, in his official capacity as Director of the Texas Department of Public Safety; Sklyor Hearn, in his official capacity as Deputy Director of Administration and Services of the Texas Department of Public Safety; Amanda Arriaga, in her official capacity as Division Director of the Driver License Division of the Texas Department of Public Safety, and Greg Abbot, in his official capacity as Governor of Texas, Defendants, Case No. 5:18-cv-01265 (W.D. Tex., December 5, 2018) seeks declaratory and injunctive relief against Defendants in their official capacities to end an unconstitutional license suspension scheme. This case is about the Texas Department of Public Safety operating a wealth-based driver's license suspension scheme that traps the state's most vulnerable people in a cycle of debt and hardship. As a source of revenue, Texas targets individuals with certain traffic infractions through the "Driver Responsibility Program," which imposes hundreds or thousands of dollars in "surcharges" each year for a period of three years following a single offense. Failure to pay these additional and punitive surcharges results in an automatic license suspension, even if the individual cannot afford to pay. Under the Driver Responsibility Program ("DRP"), Defendants automatically impose surcharge fees in addition to any punishment and fines already imposed for an individual's underlying traffic offense. Individuals are therefore responsible for their original fines, license reinstatement fees, and any related costs before they must try to pay off hundreds or thousands of dollars in surcharges to keep their licenses. Those who cannot afford their surcharges will have their licenses suspended indefinitely until they can resolve their surcharge debts. Many Texans never receive any notice whatsoever about the surcharge program itself or the fees they owe. For those who do, the notice sent by Defendants offers only three options to avoid license suspension: pay the required three years of surcharge fees in advance; pay this year's full amount in advance; or pay the full amount in monthly installments at a non-adjustable rate predetermined by the state. Suspensions for nonpayment of surcharges under the DRP are automatic; Defendants conduct no inquiry into an individual's ability to pay or whether the nonpayment was willful. Defendants offer no meaningful or accessible opportunities for impoverished individuals to avoid suspension of their licenses simply because they cannot afford the punitive surcharges. Because many individuals never receive notice that their licenses are suspended under the DRP, indebted individuals can easily (and unknowingly) accrue criminal charges for Driving While License Invalid (DWLI). Impoverished individuals struggling to pay off a suspended license can also accrue DWLI charges if they drive during an emergency or while carrying out necessary daily activities for their family or their health, says the complaint. Graciela Rodriguez is a 76-year-old resident of San Antonio, Texas, whose driver's license is suspended for unpaid DRP surcharges. Charles Stevens is a 40-year-old Navy veteran and resident of San Antonio, Texas, whose driver's license is suspended for unpaid DRP surcharges. Khalid Salahuddin is a 40-year-old disabled Navy veteran and resident of San Antonio, Texas, whose driver's license is suspended for unpaid DRP surcharges. Nathan Alexander is a 35-year-old resident of San Antonio, Texas, and whose driver's license is suspended for unpaid DRP surcharges. Steven Mach is the Chair of the Texas Public Safety Commission, which "controls" the Department of Public Safety and oversees its actions and functions. Steven McCraw is the Director of the Texas Department of Public Safety (DPS). Defendant McCraw oversees and is ultimately responsible for all actions of DPS, which has exclusive authority over administration of the "Driver Responsibility Program" and assesses and collects surcharges from holders of Texas drivers' licenses pursuant to that program. Sklyor Hearn is the Deputy Director of Administration and Services of the Texas Department of Public Safety. Mr. Hearn oversees and is responsible for seven of the Department of Public Safety's subdivisions, including the Driver License Division. Amanda Arriaga is the Division Director of the Driver License Division of the Texas Department of Public Safety. Ms. Arriaga oversees and is responsible for the actions of the Driver License Division, which handles DRP license suspensions. Greg Abbott is the Governor of the State of Texas. As Governor, Mr. Abbott is the head of the executive branch of the Texas state government and is responsible for enforcing state law, including the DRP program. He oversees and appoints the members of the Public Safety Commission, which controls the Department of Public Safety.[BN] The Plaintiffs are represented by: Phil Telfeyan, Esq. Marissa K. Hatton, Esq. Equal Justice Under Law 400 7th Street NW, Suite 602 Washington, DC 20004 Phone: (202) 505-2058 Email: ptelfeyan@equaljusticeunderlaw.org mhatton@equaljusticeunderlaw.org - and – Brian McGiverin, Esq. Austin Community Law Center 2221 Hancock Drive Austin, TX 78756 Phone: (512) 596-0226 Fax: (512) 597-0805 Email: brian@austincommunitylawcenter.org TILLY'S INC: Awaits Written Opinion in Ward Class Action -------------------------------------------------------- Tilly's, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on December 10, 2018, for the quarterly period ended November 3, 2018, that the company is awaiting a written opinion to be issued in Skylar Ward, on behalf of herself and all others similarly situated, v. Tilly's, Inc., Superior Court of California, County of Los Angeles, Case No. BC595405. In September 2015, the plaintiff filed a putative class action lawsuit against the company alleging, among other things, various violations of California's wage and hour laws. The complaint sought class certification, unspecified damages, unpaid wages, penalties, restitution, and attorneys' fees. In June 2016, the court granted the company's demurrer to the plaintiff's complaint on the grounds that the plaintiff failed to state a cause of action against Tilly's and dismissed the complaint. Specifically, the court agreed with the company that the plaintiff's cause of action for reporting-time pay fails as a matter of law as the plaintiff and other putative class members did not "report for work" with respect to certain shifts on which the plaintiff's claims are based. In November 2016, the court entered a written order sustaining the company's demurrer to the plaintiff's complaint and dismissing all of plaintiff’s causes of action with prejudice. In January 2017, the plaintiff filed an appeal of the order to the California Court of Appeal. In October 2017, the plaintiff filed her opening appellate brief, and the company's responding appellate brief was filed in December 2017. In May 2018, the plaintiff filed her reply appellate brief. Later in May 2018, an amicus brief was filed by Abercrombie & Fitch Stores, Inc., in support of Tilly's position in this appeal. Tilly's said, "Oral argument was heard by the California Court of Appeal in November 2018, and we are awaiting its written opinion. We have defended this case vigorously, and will continue to do so." Tilly's, Inc. retails casual apparel, footwear, and accessories for young men and women, and boys and girls in the United States. Its apparel merchandise includes tops, outerwear, bottoms, and dresses; and accessories merchandise comprises backpacks, hats, sunglasses, headphones, handbags, watches, jewelry, and others. Tilly's, Inc.was founded in 1982 and is headquartered in Irvine, California. TILLY'S INC: De Minimis Amount of Settlement Coupons Redeemed ------------------------------------------------------------- Tilly's, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on December 10, 2018, for the quarterly period ended November 3, 2018, that as of November 3, 2018, less than 1% of the non-transferable discount coupons had been redeemed, representing less than one quarter of 1% of total sale transactions since the coupons were issued. On January 30, 2017, a plaintiff filed a putative class action lawsuit against the company, alleging violations of the Telephone Consumer Protection Act of 1991 (the "TCPA"). The case is captioned, Lauren Minniti, on behalf of herself and all others similarly situated, v. Tilly's, Inc., United States District Court, Southern District of Florida, Case No. 0:17-cv-60237-FAM. Specifically, the complaint asserted a violation of the TCPA for allegedly sending unsolicited automated messages to the cellular telephones of the plaintiff and others. The complaint sought class certification and damages of $500 per violation plus treble damages under the TCPA. In March 2017, the company filed its initial response to the matter with the court. In June 2017, the parties attended a mediation. In July 2017, the parties reached an agreement in principle to settle the matter, subject to court approval, and the company recorded an estimated loss provision of $6.2 million in connection with the proposed settlement during the second quarter of fiscal 2017. In March 2018, the parties executed a settlement agreement, subject to final court approval. In April 2018, the court preliminarily approved the settlement agreement and certified a class for settlement purposes. In May 2018, the class members were sent notice of the settlement and in August 2018, the court granted final approval of the settlement. As a result, the company recorded a $1.5 million reduction in its original accrual estimate to reflect the final required cash payments to be made as part of this settlement which were subsequently paid in October 2018. Additionally, the company was required to issue non-transferable discount coupons to approximately 612,000 existing Tillys customers not covered by the cash payments in early September 2018. These coupons entitle the recipient to a one-time 50% discount on a single purchase transaction of up to $1,000. Any unused coupons will expire on September 4, 2019. As of November 3, 2018, less than one percent of these coupons had been redeemed, representing less than one quarter of one percent of total sale transactions since the coupons were issued. Consequently, these coupons had no material impact on the company's fiscal 2018 third quarter comparable store net sales or operating results as a whole. Tilly's said, "On a transactional basis, redemption transactions have produced an average sale that is approximately three times larger than non-redemption transactions during this same time period, but with a significantly lower margin rate. The net result has been an increase in net margin dollars produced per redemption transaction that is approximately 20 percent higher than non-redemption transactions. There can be no assurances that these results, or the level of redemptions, will remain consistent through the redemption period, particularly during the 2018 holiday season. Although redemption activity has been low during the first two months of the redemption period, the potential impact through September 4, 2019 could be material and could adversely affect our financial condition and results of operations." Tilly's, Inc. retails casual apparel, footwear, and accessories for young men and women, and boys and girls in the United States. Its apparel merchandise includes tops, outerwear, bottoms, and dresses; and accessories merchandise comprises backpacks, hats, sunglasses, headphones, handbags, watches, jewelry, and others. Tilly's, Inc.was founded in 1982 and is headquartered in Irvine, California. TIME WARNER: 2nd Amended Sims Allowed to Substitute Named Plaintiff ------------------------------------------------------------------- In the case, MARKIA SIMS, Plaintiff, v. TIME WARNER CABLE INC., et al., Defendants, Civil Action No. 2:17-cv-631 (S.D. Ohio), Magistrate Judge Kimberly A. Jolson of the U.S. District Court for the Southern District of Ohio, Eastern Division, granted the Plaintiff's Motion for Leave to File Second Amended Complaint to Substitute Named Plaintiff. The Plaintiff brings claims under the Fair Labor Standards Act ("FLSA") and Ohio law for failure to compensate her and others similarly situated, for time spent logging into the Defendants' systems before their shifts began and for failure to pay overtime Sims, proceeding as an individual Plaintiff, filed an initial complaint in the Northern District of Ohio on May 4, 2017. She filed a First Amended Complaint on May 5, 2017, to bring a collective action suit under the FLSA and a class action under Ohio law. Roughly six months earlier, Daylon Howard and Tracy Dewald filed a virtually identical lawsuit in the Southern District of Ohio. Sims and all but one of the Plaintiffs who have opted in to the instant case also initially opted in to the Howard litigation. The Howard litigation alleges the same basis for relief as the Plaintiff alleges in the intant case. The Defendants in Howard, however, filed a motion to dismiss for failure to state a claim and compel arbitration, arguing that Howard signed an arbitration agreement that governed his claims for relief. The Court stayed discovery in Howard pending a ruling on the motion to dismiss. The Defendants later filed a summary judgment motion, arguing that Dewald was exempt from the FLSA and similar provisions of Ohio law. While the stay was in place, Sims filed the suit in the Northern District of Ohio, and she and other Plaintiffs involved in the suit opted out of the class in Howard. Relevant to the instant motion, on Dec. 4, 2017, the day before Sims' scheduled deposition, the Defendants sent a letter to the Plaintiff's counsel accusing Sims of inappropriately retaining documents that contained confidential personally identifiable information of the Defendants' customers. In this letter, the Defendants stated their intent to pursue any and all legal remedies against Sims, which may include notifying law enforcement authorities and the appropriate states' Attorneys Generals, to ensure all Company property and personally identifiable information is returned and not retained in any form by Sims. On July 20, 2017, the Northern District of Ohio transferred the case to the Court. On Feb. 21, 2018, the Court administratively closed the case pending the Supreme Court's decision in Ernst & Young LLP et al. v. Morris. On May 21, 2018, the Supreme Court decided Morris, and on May 30, 2018, the Court reopened Sims and directed the parties to re-file any motions they wished the Court to consider. On June 18, 2018, Defendants filed a Renewed Motion to Dismiss and for Sanctions, which Judge Marbley denied on Nov. 27, 2018. On July 12, 2018, the Plaintiff filed the instant Motion for Leave to Amend. She seeks leave to amend her complaint under Fed. R. Civ. P. 15(a)(2) to substitute opt-in Plaintiff, Leslie A. Wood, as the Representative Plaintiff in the case. In support, the Plaintiff asserts that amendment is necessary because the Defendants, based on the criminal law issues they have raised, may challenge Sims' fitness as an appropriate class representative. The Defendants oppose amendment, asserting as "most critical," that the Plaintiff's motion is futile in light of the then-pending motion to dismiss and the fact that, in the Defendants' view, the case is duplicative of Howard. In support, the Defendants rely on Judge Lioi's finding, prior to her transfer of the case, that the case is duplicative of Howard and that the Plaintiff's conduct, and the conduct of their counsel was inappropriate. At this stage of the litigation, the Court is charged with determining whether the futility of an amendment is so obvious that it should be disallowed. Magistrate Judge Jolson finds that the amended complaint here meets this low bar. Accordingly, notwithstanding the Defendants' credibility allegations, an amendment to substitute Wood as the representative Plaintiff is not obviously futile. The Defendants contend that they have already incurred extensive fees and costs as a result of Sims serving as the named Plaintiff/class representative for a duplicative lawsuit and that redeposing a new named Plaintiff/class representative comes with additional time and preparation that Defendants should not have to expend. None of these arguments persuade the Magistrate under the liberal amendment standard, to deny leave to amend, especially in light of the Court's dispositive ruling. While she acknowledges the potential cost and inconveniences associated with deposing Wood, the Magistrate does not find undue prejudice. In light of these, the Magistrate Judge finds that the Plaintiff has satisfied the Rule 15(a)(2) standard for leave to amend and is permitted to amend her complaint to substitute Wood for Sims as the named Representative. Finally, the Defendants in their opposition request that the Court award them costs associated with the defense of this lawsuit as deemed appropriate by the Court. The Magistrate finds that the Defendants have not set forth facts regarding the Plaintiff's conduct that would warrant an award of costs. Indeed, in denying the Defendants' motion to dismiss, Judge Marbley also denied their motion for sanctions to reimburse them for unnecessary attorneys' fees and costs associated with the lawsuit. For these reasons, Magistarte Jolson granted the Plaintiff's Motion for Leave to Amend. The Clerk will file Doc. 69 as the Second Amended Complaint and amend the case caption accordingly. Further, the parties are directed to meet and confer and file a proposed scheduling order with the Court within seven days of the Order. A full-text copy of the Court's Dec. 7, 2018 Opinion and Order is available at https://is.gd/Af60NK from Leagle.com. Leslie A. Wood, Plaintiff, represented by Chastity Lynn Christy, Anthony J. Lazzaro & Lori M. Griffin, Lazzaro Law Firm, LLC. Time Warner Cable Inc., Charter Communications, LLC & TWC Administration LLC, Defendants, represented by James Edward Davidson -- james.davidson@icemiller.com -- Ice Miller LLP, Catherine L. Strauss -- catherine.strauss@icemiller.com -- Ice Miller LLP, Laura M. Jordan -- LJordan@ThompsonCoburn.com -- Thompson Coburn LLP, pro hac vice, R. Nelson Williams -- rwilliams@thompsoncoburn.com -- Thompson Coburn LLP, pro hac vice & Stephen Cody Reinberg, Thompson Coburn LLP, pro hac vice. TRANS UNION: Norman Suit Alleges FCRA Violation ----------------------------------------------- Duane E. Norman, Sr., on behalf of himself and all others similarly situated, Plaintiff, v. Trans Union, LLC, Defendant, Case No. 2:18-cv-05225 (E.D. Penn., December 5, 2018) seeks redress of violations of the Fair Credit Reporting Act by Defendant Trans Union, LLC, a consumer reporting agency ("CRA"). This case is about Trans Union's failure to fulfill its statutory duties with respect to consumer disputes of inquiry information. Trans Union does not reinvestigate disputed inquiries; does not notify the source of the disputed inquiry about the consumers' disputes of the information; does not provide the source with all the relevant information about the dispute; and does not delete disputed inquiries that it cannot verify, says the complaint. Moreover, rather than complying with the FCRA, Trans Union attempts to steer consumers who dispute inquiry information toward its proprietary identity theft protection products from which Trans Union derives substantive profits. These failures not only violate consumers' FCRA rights to dispute, they also undermine the accuracy of information within consumer reports because consumers often notice inaccurate information of which the reporting CRA is unaware, asserts the complaint. The FCRA's dispute procedure is the singular method (outside of litigation) by which consumers can correct errors in their credit files. The complaint says Trans Union has violated the requirements of FCRA by failing to reinvestigate disputed inquiries and failing to notify the source of the inquiry about the consumer's dispute. As a result, Trans Union harmed Plaintiff and thousands like him across the United States, and undercut the healthy functioning of the consumer credit system by providing inaccurate and misleading credit history information about consumers to potential creditors and service providers, adds the complaint. Plaintiff Duane E. Norman, Sr. is a natural person who resides in the Commonwealth of Pennsylvania. Defendant Trans Union is a limited liability company that regularly conducts substantial business in the Commonwealth of Pennsylvania and which has a place of business in Crum Lynne, Pennsylvania.[BN] The Plaintiff is represented by: James A. Francis, Esq. John Soumilas, Esq. FRANCIS & MAILMAN, P.C. 1600 Market Street, 25th Floor Philadelphia, PA 19103 Phone: 215-735-8600 Fax: 215-940-8000 Email: jfrancis@consumerlawfirm.com jsoumilas@consumerlawfirm.com - and – Cary L. Flitter, Esq. Andrew M. Milz, Esq. FLITTER MILZ, P.C. 450 N. Narberth Ave., Suite 101 Narberth, PA 19072 Phone: 610-266-7863 Fax: 610-667-0552 Email: cflitter@consumerslaw.com amilz@consumerslaw.com UBER TECHNOLOGIES: Maurice Blackburn Widens Class Action -------------------------------------------------------- Timna Jacks, writing for Sydney Morning Herald, reports that a major class action against Uber will be opened up to another three states, which could make it the largest class action in Australian history. Law firm Maurice Blackburn is widening its Victorian lawsuit against Uber to thousands of taxi and hire-car drivers, operators and licence holders in NSW, Queensland and Western Australia. Lawyers will allege the ride-sharing company engaged in conspiracy by unlawful means, causing harm to drivers and operators in the industry. The case, which will be heard in the Victorian Supreme Court, has 1200 people registered in Victoria so far. Tens of thousands more people are expected to register, with the law firm counting nearly 40,000 drivers and nearly 22,000 taxi and hire-car licence owners across the four states. Maurice Blackburn senior associate Elizabeth O'Shea believes that if the class action is successful, Uber could be forced to pay "hundreds of millions of dollars". She said the settlement could be bigger than the largest class action in the country's history -- a Maurice Blackburn case in 2014 that won thousands of Black Saturday bushfire victims in Victoria $700 million in compensation. "It's reasonable to think that the settlement will be higher than the largest settlement that has been achieved so far," Ms O'Shea said. In the case against Uber, lawyers will seek compensation for the loss of driver income between the time of Uber entering the market in early 2014, and the taxi industry being deregulated. Lawyers will also seek compensation for the devaluing of taxi and hire car licence plates since 2014. Ms O'Shea said Uber should not be allowed to "come in and not comply with the rules and get an advantage". "It's quite clear that they managed to obtain market share and build their business by operating unlawfully," she said. The firm expects to file the case by late this year or early next year and was confident it would be successful, Ms O'Shea said. "We are working with a team of very senior barristers who have confirmed the conclusion that we have come to ourselves," she said. "We think we have a good legal argument." The case is being backed by UK litigation funder, Harbour. NSW Taxi Council's chief executive Martin Rogers said the state government's $250 million "industry adjustment package", which paid taxi licence plate owners $20,000 per plate – an arrangement that was capped at two plates – had left a "majority" of people out of pocket. "This has left people devastated, they have lost over $200,000 on an asset that for many was their superannuation," Mr Rogers said. "They're struggling to make ends meet and they've passed the age of working so the only option is to go on the pension." This has left people devastated, they have lost over $200,000 on an asset that for many was their superannuation. Martin Rogers, NSW Taxi Council Cabs2000's managing director Shane Holley in Queensland said taxi drivers were significantly disadvantaged when Uber entered the market. "The damage was massive and it was almost instantaneous," he said. "We lost revenue through our customers. They had a big push to gain market share and it had a flow-on effect." Licence plate owners lost "80 per cent of the value" under the assistance package offered in Queensland that mirrored the arrangements in NSW, he said. "There are families out there who have lost their homes and their future investments." An Uber spokeswoman said despite a number of media stories about the case, the company had "not received any notification of a class action". "We are focusing our efforts on delivering a great service to riders and drivers in the cities where we operate," she said. [GN] UNITED NATURAL: Appeal in Class Suit v. SUPERVALU Underway ---------------------------------------------------------- United Natural Foods, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on December 6, 2018, for the quarterly period ended October 27, 2018, that a New England plaintiff has taken an appeal to the U.S. Court of Appeals for the Eighth Circuit from a district court's grant of summary judgment and Daubert motion in a class action lawsuit involving SUPERVALU Inc. In December 2008, a class action complaint was filed in the United States District Court for the Western District of Wisconsin against Supervalu alleging that a 2003 transaction between Supervalu and C&S Wholesale Grocers, Inc. ("C&S") was a conspiracy to restrain trade and allocate markets. In the 2003 transaction, Supervalu purchased certain assets of the Fleming Corporation as part of Fleming Corporation's bankruptcy proceedings and sold certain of Supervalu's assets to C&S that were located in New England. Three other retailers filed similar complaints in other jurisdictions and the cases were consolidated and are proceeding in the United States District Court in Minnesota. The complaints alleged that the conspiracy was concealed and continued through the use of non-compete and non-solicitation agreements and the closing down of the distribution facilities that Supervalu and C&S purchased from each other. Plaintiffs are divided into Midwest plaintiffs and a New England plaintiff and are seeking monetary damages, injunctive relief and attorney's fees. At a mediation on May 25, 2017, Supervalu reached a settlement with the non-arbitration Champaign distribution center class, which was the one Midwest class suing Supervalu. The court granted final approval of the settlement on November 17, 2017. The material terms of the settlement include: (1) denial of wrongdoing and liability by Supervalu; (2) release of all Midwest plaintiffs’ claims against Supervalu related to the allegations and transactions at issue in the litigation that were raised or could have been raised by the non-arbitration Champaign distribution center class; and (3) payment by Supervalu of $9 million. The New England plaintiff is not a party to the settlement and is pursuing its individual claims and potential class action claims against Supervalu, which at this time are determined as remote. On February 15, 2018, Supervalu filed a summary judgment and Daubert motion and the New England plaintiff filed a motion for class certification and on July 27, 2018, the District Court granted Supervalu's motions. The New England plaintiff appealed to the 8th Circuit on August 15, 2018. United Natural Foods, Inc., together with its subsidiaries, distributes natural, organic, and specialty foods and non-food products in the United States and Canada. The company operates through three divisions: Wholesale, Retail, and Manufacturing and Branded Products. United Natural Foods, Inc. was founded in 1976 and is headquartered in Providence, Rhode Island. United Natural Foods acquired all of the outstanding equity securities of SUPERVALU INC. on October 22, 2018. UNITED NATURAL: Customer Data Security Breach v. SUPERVALU Ongoing ------------------------------------------------------------------ United Natural Foods, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on December 6, 2018, for the quarterly period ended October 27, 2018, that the customer data security breach suit against SUPERVALU INC. is ongoing. On October 22, 2018, the Company acquired all of the outstanding equity securities of SUPERVALU INC. In August and November 2014, four class action complaints were filed against Supervalu relating to the criminal intrusion into Supervalu's computer network that were previously announced by Supervalu in its fiscal 2015. The cases were centralized in the Federal District Court for the District of Minnesota under the caption In Re: SUPERVALU Inc. Customer Data Security Breach Litigation. On June 26, 2015, the plaintiffs filed a Consolidated Class Action Complaint. Supervalu filed a Motion to Dismiss the Consolidated Class Action Complaint and the hearing took place on November 3, 2015. On January 7, 2016, the District Court granted the Motion to Dismiss and dismissed the case without prejudice, holding that the plaintiffs did not have standing to sue as they had not met their burden of showing any compensable damages. On February 4, 2016, the plaintiffs filed a motion to vacate the District Court's dismissal of the complaint or in the alternative to conduct discovery and file an amended complaint, and Supervalu filed its response in opposition on March 4, 2016. On April 20, 2016, the District Court denied plaintiffs' motion to vacate the District Court's dismissal or in the alternative to amend the complaint. On May 18, 2016, plaintiffs appealed to the 8th Circuit and on May 31, 2016, Supervalu filed a cross-appeal to preserve its additional arguments for dismissal of the plaintiffs' complaint. On August 30, 2017, the 8th Circuit affirmed the dismissal for 14 out of the 15 plaintiffs finding they had no standing. The 8th Circuit did not consider Supervalu's cross-appeal and remanded the case back for consideration of Supervalu's additional arguments for dismissal against the one remaining plaintiff. On October 30, 2017, Supervalu filed a motion to dismiss the remaining plaintiff and on November 7, 2017, the plaintiff filed a motion to amend its complaint. The court held a hearing on the motions on December 14, 2017, and on March 7, 2018, the District Court denied plaintiff's motion to amend and granted Supervalu's motion to dismiss. On March 14, 2018, plaintiff appealed to the 8th Circuit. Supervalu had $50 million of cyber threat insurance above a per incident deductible of $1 million at the time of the Criminal Intrusion, which the Company believes should cover any potential loss related to this litigation. United Natural Foods, Inc., together with its subsidiaries, distributes natural, organic, and specialty foods and non-food products in the United States and Canada. The company operates through three divisions: Wholesale, Retail, and Manufacturing and Branded Products. United Natural Foods, Inc. was founded in 1976 and is headquartered in Providence, Rhode Island. UT SOUTHWESTERN: Hospital Faces Class Action for ADA Violation -------------------------------------------------------------- A hospital in Dallas-Fort Worth is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Phillip Sullivan, Jr., on behalf of himself and all others similarly situated, Plaintiff v. UT Southwestern Health Systems, Defendant, Case No. 1:18-cv-11252 (S.D. N.Y., December 3, 2018). UT Southwestern Health Systems provides education, research, and patient care services. The Company offers medical and graduate school, flow cytometry core, live cell imaging, veripath laboratories, and hospital and clinic services.[BN] The Plaintiff is represented by: C.K. Lee, Esq. Lee Litigation Group, PLLC 30 East 39th Street 2nd Floor New York, NY 10016 Tel: (212) 465-1188 Fax: (212) 465-1181 Email: cklee@leelitigation.com VERINT SYSTEMS: Mediation Underway in Tel Aviv Suit --------------------------------------------------- Verint Systems said in its Form 10-Q Report filed with the Securities and Exchange Commission on December 6, 2018, for the quarterly period ended October 31, 2018, that mediation is still ongoing in the consolidated class action suit pending in the Tel Aviv District Court. On March 26, 2009, legal actions were commenced by Ms. Orit Deutsch, a former employee of the company's subsidiary, Verint Systems Limited ("VSL"), against VSL in the Tel Aviv Regional Labor Court (Case Number 4186/09) (the "Deutsch Labor Action") and against CTI in the Tel Aviv District Court (Case Number 1335/09) (the "Deutsch District Action"). In the Deutsch Labor Action, Ms. Deutsch filed a motion to approve a class action lawsuit on the grounds that she purported to represent a class of the company's employees and former employees who were granted Verint and CTI stock options and were allegedly damaged as a result of the suspension of option exercises during the period from March 2006 through March 2010, during which the company did not make periodic filings with the SEC as a result of certain internal and external investigations and reviews of accounting matters discussed in the company's prior public filings. In the Deutsch District Action, in addition to a small amount of individual damages, Ms. Deutsch was seeking to certify a class of plaintiffs who were allegedly damaged due to their inability to exercise Verint and CTI stock options as a result of alleged negligence by CTI in its financial reporting. The class certification motions did not specify an amount of damages. On February 8, 2010, the Deutsch Labor Action was dismissed for lack of material jurisdiction and was transferred to the Tel Aviv District Court and consolidated with the Deutsch District Action. On March 16, 2009 and March 26, 2009, respectively, legal actions were commenced by Ms. Roni Katriel, a former employee of CTI"s former subsidiary, Comverse Limited, against Comverse Limited in the Tel Aviv Regional Labor Court (Case Number 3444/09) (the "Katriel Labor Action") and against CTI in the Tel Aviv District Court (Case Number 1334/09) (the "Katriel District Action"). In the Katriel Labor Action, Ms. Katriel was seeking to certify a class of plaintiffs who were granted CTI stock options and were allegedly damaged as a result of the suspension of option exercises during an extended filing delay period affecting CTI's periodic reporting discussed in CTI's historical SEC filings. In the Katriel District Action, in addition to a small amount of individual damages, Ms. Katriel was seeking to certify a class of plaintiffs who were allegedly damaged due to their inability to exercise CTI stock options as a result of alleged negligence by CTI in its financial reporting. The class certification motions did not specify an amount of damages. On March 2, 2010, the Katriel Labor Action was transferred to the Tel Aviv District Court, based on an agreed motion filed by the parties requesting such transfer. On April 4, 2012, Ms. Deutsch and Ms. Katriel filed an uncontested motion to consolidate and amend their claims and on June 7, 2012, the District Court allowed Ms. Deutsch and Ms. Katriel to file the consolidated class certification motion and an amended consolidated complaint against VSL, CTI, and Comverse Limited. Following CTI's announcement of its intention to effect the distribution of all of the issued and outstanding shares of capital stock of its former subsidiary, Comverse, Inc. (the "Comverse Share Distribution"), on July 12, 2012, the plaintiffs filed a motion requesting that the District Court order CTI to set aside up to $150.0 million in assets to secure any future judgment. The District Court ruled at such time that it would not decide this motion until the Deutsch and Katriel class certification motion was heard. Plaintiffs initially filed a motion to appeal this ruling in August 2012, but subsequently withdrew it in July 2014. Prior to the consummation of the Comverse Share Distribution, CTI either sold or transferred substantially all of its business operations and assets (other than its equity ownership interests in us and its then-subsidiary, Comverse, Inc.) to Comverse, Inc. or unaffiliated third parties. On October 31, 2012, CTI completed the Comverse Share Distribution, in which it distributed all of the outstanding shares of common stock of Comverse, Inc. to CTI's shareholders. As a result of the Comverse Share Distribution, Comverse, Inc. became an independent company and ceased to be a wholly owned subsidiary of CTI, and CTI ceased to have any material assets other than its equity interest in the company. As of February 28, 2017, Mavenir Inc. became successor-in-interest to Comverse, Inc. On February 4, 2013, the company merged with CTI. As a result of the merger, the company have assumed certain rights and liabilities of CTI, including any liability of CTI arising out of the Deutsch District Action and the Katriel District Action. However, under the terms of the Distribution Agreement between CTI and Comverse, Inc. relating to the Comverse share distribution, the company, as successor to CTI, are entitled to indemnification from Comverse, Inc. (now Mavenir) for any losses the Company suffers in its capacity as successor-in-interest to CTI in connection with the Deutsch District Action and the Katriel District Action. Following an unsuccessful mediation process, the proceeding before the District Court resumed. On August 28, 2016, the District Court (i) denied the plaintiffs' motion to certify the suit as a class action with respect to all claims relating to Verint stock options and (ii) approved the plaintiffs' motion to certify the suit as a class action with respect to claims of current or former employees of Comverse Limited (now Mavenir) or VSL who held unexercised CTI stock options at the time CTI suspended option exercises. The court also ruled that the merits of the case and any calculation of damages would be evaluated under New York law. On December 15, 2016, CTI filed with the Supreme Court a motion for leave to appeal the District Court's August 28, 2016 ruling. The plaintiffs did not file an appeal of the District Court's August 28, 2016 ruling. On February 5, 2017, the District Court approved the plaintiffs’ motion to appoint a new representative plaintiff, Mr. David Vaaknin, for the current or former employees of VSL who held unexercised CTI stock options at the time CTI suspended option exercises in replacement of Ms. Deutsch. On August 8, 2017, the Supreme Court partially allowed CTI's appeal and ordered the case to be returned to the District Court to determine whether a cause of action exists in this case under New York law, based on CTI's previously submitted expert opinion and the opinion of any expert the plaintiffs elect to introduce. On November 28, 2017, the plaintiffs submitted an expert opinion regarding New York law. On January 3, 2018, CTI filed a motion to dismiss the motion to certify the class action on the basis that the New York law opinion submitted by the plaintiffs did not directly address the causes of action in question, or alternatively, to dismiss the portions of the opinion that did not specifically relate to CTI's expert opinion. On January 22, 2018, the court ruled that the plaintiffs should submit a motion to amend their class certification motion and that CTI's motion to dismiss would remain pending. Based on input from the court, the parties have agreed to enter into a further round of mediation in an effort to settle the matter, which remains ongoing. Verint Systems Inc. provides actionable intelligence solutions and value-added services worldwide. The company was founded in 1994 and is headquartered in Melville, New York. VILLAGE OF FOX LAKE: Court Denies Bids to Dismiss Willoughby Suit ----------------------------------------------------------------- In the case, RAYMOND WILLOUGHBY and DAMIEN WARD, Plaintiffs, v. VILLAGE OF FOX LAKE, OFFICERS ATHA HUNT #9640 and THOMAS JONITES, INVESTIGATORS BRAD SCHROEDER and LUIS RIVERA, SERGEANT THOMAS, LIEUTENANT NIELSEN, and JOHN DOES, Defendants, Case No. 17 CV 2800 (N.D. Ill.), Judge Ronald A. Guzman of the U.S. District Court for the Northern District of Illinois, Eastern Division, denied the motions to dismiss Defendants Schroeder, Rivera, and Hunt are denied. In the action, the Plaintiffs allege that their Fourth Amendment rights were violated when they were arrested and detained in conjunction with the investigation that occurred after the death of Charles Joseph Gliniewicz, who was a police lieutenant for the Village of Fox Lake, Illinois. It was later revealed that Gliniewicz had staged his suicide to look like a homicide. It is alleged that prior to taking his own life, Gliniewicz sent a radio transmission to the Village police department in which he falsely stated that he was pursuing three individuals, two "male whites" and one "male black." Defendants Schroeder, Rivera, and Hunt move separately under Federal Rule of Civil Procedure 12(b)(6) to dismiss the Section 1983 claims asserted against them on the ground that they are barred by the statute of limitations. On July 26, 2018, the Plaintiffs filed a Fourth Amended Complaint ("FAC") in which Schroeder, Rivera, and Hunt were named as the Defendants for the first time in the action. They subsequently amended their pleadings to assert the same claims previously asserted, dropping and adding certain Defendants who are not pertinent to the instant motions. In response to Defendants' motions, Willoughby contends that, because the action was originally filed as a class action, the statute of limitations was tolled from April 13, 2017 until June 6, 2018, the date the Court entered an order denying the Plaintiffs' motion for class certification. Willoughby says that 19 months passed between his arrest and the filing of the complaint; the statute of limitations was then tolled until June 2018, which would leave about 5 months until the expiration of the limitations period in November 2018; and the July 2018 amendment adding the new defendants was therefore within the limitations period. The Defendants, in reply, direct the Court to decisions in which courts held that a putative class action against one defendant does not toll the statute of limitations on claims against a different defendant. Judge Guzman finds that in the original complaint, the Plaintiffs complained that they had been wrongfully arrested and detained in conjunction with the Gliniewicz investigation, and they named John Doe police officers as the Defendants. In Count I, they alleged that there was no probable cause to arrest or detain them and that they suffered damages by reason of the described acts of the Defendant Officers. The acts of which Willoughby complained were that John Doe Police Officers arrested him and held him on the scene for one or two hours; transported him to the Round Lake Police Department, where he was held for several more hours; and, when he requested and tried to leave, told him that he could not do so because he was in custody. It appears from the original complaint that Willoughby intended to sue the officers who were involved in arresting him, taking him into custody, and holding him at the Round Lake Police Department. Under Rule 15(c)(1)(C)(ii), the Judge holds that the proper inquiry is whether the newly-added Defendants knew or should have known that but for Willoughby's inability to discover their identities, they would have been named as the Defendants. On the current record, the Judge is unable to resolve this issue in the Defendants' favor. For these reasons, Judge Guzman denied the Defendants' motions without prejudice to the issue being raised later in the proceedings after the record has been developed. A full-text copy of the Court's Dec. 4, 2018 Memorandum Opinion and Order is available at https://is.gd/Qr8pP8 from Leagle.com. Raymond Willoughby & Damien Ward, Plaintiffs, represented by Gregory E. Kulis, Gregory E. Kulis and Associates, Ltd., Brian M. Orozco, Gregory E. Kulis & Associates, Ltd. & Monica Ghosh, Gregory E. Kulis & Associates, Ltd. Village of Fox Lake, a Municipal Corporation, Defendant, represented by Benjamin Matthew Jacobi -- bjacobi@okgc.com -- O'Halloran Kosoff Geitner & Cook, LLC, Clifford Gary Kosoff -- ckosoff@okgc.com -- O'Halloran, Kosoff, Helander & Geitner, P.C. & Gail Lynne Reich -- greich@okgc.com -- O'Halloran Kosoff Geitner & Cook, LLC. Atha Hunt #9640, Defendant, represented by Stephen Gregory Goins, Northeast Illinois Regional Commuter Railroad Corp., Thomas Joseph Platt, Metra, Julie Ann Daily, Metra Law Department, Russal John Anderson, NIRC/Metra Railroad & Sue-Ann Rosen, NIRC/Metra Railroad. Inv. Brad Schroeder & Inv. Luis Rivera, Defendants, represented by Ellen Kornichuk Emery -- eemery@ancelglink.com -- Ancel, Glink, Diamond, Bush, DiCianni & Krafthefer, P.C. & Kathleen Margaret Kunkle -- kkunkle@ancelglink.com -- Ancel Glink Diamond Bush DiCianni & Krafthefer PC. VIRGINIA: DHHR Averts Class Action Over IDD Waiver -------------------------------------------------- David Beard, writing for The Dominion Post, reports that a federal judge has ruled in favor of the state in a lawsuit filed on behalf of Medicaid clients with intellectual and developmental disabilities, but the story may not be over yet. Mountain State Justice filed the suit in July 2015 on behalf of five Medicaid Title XIX Intellectual/Developmental Disability (IDD) Waiver clients, and later expanded it to a class action suit covering all 4,684 people enrolled. The Department of Health and Human Resources' Bureau for Medical Services operates the program. In 2014 realized that it had been running the program in the red and ordered the contractor that calculated client budgets to stop approving requests for additional funding. Since contractor APS/Kepro had been routinely approving these requests -- because its formula routinely lowballed actual client needs -- this order amounted to client budget cuts. Mountain State Justice sued, alleging the contractor's budget process was secret and arbitrary. In 2016, District Judge Thomas E. Johnston agreed that contractor Kepro's formula violated due process and was unconstitutional. In response, DHHR devised a new process that began April 1. It includes interviews with the client and the client's guardians and care team, and some paperwork. From that, a base budget is calculated based on a "highly individualized" actuarial model DHHR says in 95 percent accurate. Add-ons are available based on four criteria and a new appeal process is established. Mountain State Justice argued that the new process is not better: It still denies them equal access to needed care as required by the Americans with Disabilities Act; and budget caps and other problems prevent their clients and family members from getting the care they need and prevent families from getting the support they need, they say in statements filed to support the case. DHHR argued, in return, that the plaintiffs failed to amend their complaint to address the particulars of the new process, and that the allegations are moot because the new process has started. In his ruling dismissing the case, Judge Johnston agreed with DHHR. He noted his March ruling that said the former due process injustices are not repeated in the new system. Lydia Milnes, a Morgantown-based Mountain State Justice attorney who worked on the case, said the judge hasn't issued his final judgment order yet, which would trigger the appeal period. "We are still considering options." Those options could include appeal to federal district court, or filing a new suit regarding the new process. "We are obviously disappointed. . . . Until we make that decision, I don't want to say too much." Discussing the reasoning behind his siding with DHHR, Judge Johnston says, "Virtually every aspect of the system has been amended . . . and some waiver recipients already seem to be benefiting from it." He says that while Mountain State Justice alleges the new system is equally problematic, it failed to amend its earlier complaint to directly address the new one; its complaint addresses a system that no longer exists. And they haven't demonstrated that any waiver clients have exhausted the system's appeal process for their new budgets. But Judge Johnston keeps a door open: "Nothing in this opinion should be construed to hold that the legality of DHHR's new authorization system is immune from challenge." The Dominion Post asked DHHR for comments on the case and the problem of the budget caps, and what's next for its new system. Spokeswoman Allison Adler said in an email exchange, "The DHHR believes the case was appropriately dismissed as moot, as a new budget determination process was put in place." Mountain State Justice and many waiver client caregivers complain that budget caps -- which limit the number of service hours for such things as respite -- put undue burdens on the caregivers and don't allow the clients to use their full budgets, which needlessly ties up money. Ms. Adler said, "Caps were first instituted in July 2010 and were modified in July 2015, so were in place prior the litigation which recently settled. Also notably, the dismissed lawsuit did not involve caps. The DHHR believes caps are necessary to maintain financial soundness of the program to ensure new members can join from the waiting list as quickly as possible." Regarding what's ahead, she said, "The new process has been in place, applying to anchor dates on or after July 1. The DHHR believes the new process creates appropriate budgets for IDD/W members, as it is a transparent methodology and utilizes the member's current circumstances to create the budget. "Specifically, the budget is determined based on the setting in which the member lives, and the member's functionality. This budget is not a limit on the services available to waiver members, as members are able to exceed their budget through an exceptions process administered by the Bureau of Medical Services." [GN] VIRTUOSO SOURCING: Faces Consumer Credit Class Action in NJ ----------------------------------------------------------- A class action lawsuit has been filed against Virtuoso Sourcing Group, LLC. The case is styled as Chana Gottesman, individually and on behalf of all others similarly situated, Plaintiff v. Virtuoso Sourcing Group, LLC and John Does 1-25, Defendants, Case No. 3:18-cv-16759 (D. N.J., December 3, 2018). The docket of the case states the nature of suit as Consumer Credit filed pursuant to Fair Debt Collection Act. Virtuoso Sourcing Group LLC provides payment portal services for making online payments. Virtuoso Sourcing Group serves customers in the United States.[BN] The Plaintiff is represented by: Yaakov Saks, Esq. Stein Saks, PLLC 285 Passaic Street Hackensack, NJ 07601 Tel: (201) 282-6500 ext 101 Fax: (201) 282-6501 Email: ysaks@steinsakslegal.com VOLKSWAGEN: German Motorists Invited to Join New Class Action ------------------------------------------------------------- Xinhua News Agency reports that motorists in Germany who have purchased diesel vehicles from Volkswagen were invited by the Federation of German Consumer Organizations (vzbv) on Nov. 27 to join a new form of class-action lawsuit against the Wolfsburg-based company. Speaking in Berlin, vzbv president Klaus Mueller explained that joining the registry of plaintiffs in the case was particularly interesting for those Volkswagen customers who had so far refrained from making any individual claims against the carmaker in the diesel emissions scandal. The so-called "template lawsuits", in which several plaintiffs unite to press charges collectively and resolve key questions to set a legal precedent, were only recently enabled by federal legislation passed in response to revelations of emissions-cheating practices by the automotive industry. Through the new class-action suit, the consumer protection group is seeking to obtain compensation from Volkswagen for the depreciation of vehicles sold to customers which have been caused by the diesel emissions scandal. Volkswagen rejects these financial claims and has argued that all of the cars delivered to drivers were approved by regulatory authorities -- technically safe and fully operational. An actual trial in the case will only open when at least 50 plaintiffs sign up to the registry opened by Vzbv on Nov. 27 within two months. At least on a rhetorical level, the legal action has already won the support of the General German Automobile Club (ADAC) which is the largest of its kind in Europe. "It is important to us that the diesel scandal is clarified and finally concluded in the interest of our members," ADAC president August Markl said. He expressed hope that such closure could also bring an end to "interest guided" badmouthing of diesel as a propulsion technology and the automotive sector as a whole. Since the first revelations of the installation of illicit diesel motor software by Volkswagen became public in 2015, the company has been forced to recall a total of 2.5 million vehicles. Vzbv's attorneys estimate that tens of thousands of diesel drivers in Germany will join its class-action suit. [GN] WATERSTONE MORTGAGE: Kilpatrick Townsend Attorneys Discuss Ruling ----------------------------------------------------------------- James F. Bogan III, Esq. -- jbogan@kilpatricktownsend.com -- and C. Allen Garrett Jr., Esq. -- agarrett@kilpatricktownsend.com -- of Kilpatrick Townsend & Stockton LLP, in an article for Lexology, report that in the wake of the U.S. Supreme Court's continued vigorous enforcement of class action waivers, more and more corporate parties can be expected to include broad class action waivers in their contracts with consumers and employees. But many of these agreements also will include (sometimes unwittingly) delegation clauses broadly sending any "arbitrability" issues to the arbitrator. Among other things, the agreements may incorporate rules such as those of the American Arbitration Association, which explicitly authorize arbitrators to resolve questions of "arbitrability." See AAA Commercial Arbitration Rules, R-7(a). Where an arbitration agreement contains both an unambiguous class action waiver and a delegation clause, must a district court send the class action arbitrability issue to the arbitrator? A recent Seventh Circuit decision presented with these facts held that the court, and not the arbitrator, must determine the availability of class arbitration. Although the Court of Appeals did not address the interplay between a delegation clause and a class action waiver, its holding finds support in both class arbitration decisions and general judicial policies against engaging in futile acts. Background of the Herrington case In Herrington v. Waterstone Mortgage Corp., 907 F.3d 502 (7th Cir. 2018), an employee (Ms. Herrington) sued her employer (Waterstone) for wage and hour violations, asserting both a collective action under the Fair Labor Standards Act and a breach of contract class action under Federal Rule 23. Waterstone moved to compel arbitration, relying on an arbitration agreement that both (1) provided for the arbitration to be conducted "in accordance with the rules of the American Arbitration Association applicable to employment claims" and (2) prohibited that arbitration from being "joined with or join or include any claims by any persons not party to this Agreement." Id. at 504. Ms. Herrington responded by challenging the enforceability of the entire arbitration agreement as imposing excessive costs, and also by challenging the class action waiver in particular as violative of the National Labor Relations Act (NLRA). Id. at 504-05. At the time the district court ruled on this issue, the National Labor Relations Board had ruled that the NLRA protected the right to pursue legal claims collectively; that employers who require employees to sign class action waivers violate the NLRA; and that class action waivers were unenforceable under the NLRA. Relying on the Board's decision, the district court struck the class action waiver and sent the parties to arbitration, instructing the arbitrator that Ms. Herrington "must be allowed to join other employees to her case." Id. at 505. Ultimately, the arbitrator conducted a collective proceeding in arbitration, awarding over $10 million in damages and fees to Herrington and 174 other claimants who had opted in to the arbitration proceeding. Id. at 505-06. The district court confirmed the arbitrator's award, and Waterstone appealed. Id. at 506. During the pendency of Waterstone's appeal, the U.S. Supreme Court decided Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018). In Epic, the Supreme Court reversed an earlier Seventh Circuit decision and held that an arbitration agreement does not violate the NLRA. 138 S. Ct. at 1624-29. Thus, the Court of Appeals reversed the district court's decision to invalidate the class action waiver based on the NLRA. Herrington, 907 F.3d at 506. The Seventh Circuit's decision The Seventh Circuit then turned to what it characterized as "the hard part," specifically, "what happens next?" Id. Although the Court of Appeals viewed the validity of the class action waiver to be incontestable, it still had to decide whether the district court or the arbitrator would be tasked "to interpret the arbitration agreement -- this time, including the waiver -- to determine whether it authorized the collective action that occurred." Id. Notably, until the Supreme Court's decision in Epic, Ms. Herrington herself "assumed that this waiver, if enforceable, would require her to proceed in a bilateral arbitration." Id. & n.1 (discussing employee's failure below to argue in the alternative that the arbitration agreement permitted class arbitration even if class action waiver found enforceable). The Seventh Circuit then joined every other circuit to have addressed the issue (the Fourth, Sixth, Eighth, Ninth, and Eleventh Circuits) in holding that the availability of class arbitration constitutes a gateway issue of arbitrability presumptively for a court to decide. Id. at 507-11. In a footnote, it recognized that "parties can agree to delegate to an arbitrator the question whether an agreement authorizes class or collective arbitration," but stated that such an agreement must "'clearly and unmistakably provide' for such delegation." Id. 507 n.3 (citation omitted). But the Court of Appeals did not further address the delegation issue. After reviewing the policies and doctrines supporting the view that class arbitration is a gateway issue of arbitrability presumptively reserved for a court -- including the "most important" rule that class arbitration constitutes a "fundamental" change to "the norm of bilateral arbitration" (see id. at 509) -- the Herrington court concluded its decision as follows: "On remand, the district court should conduct the threshold inquiry regarding class or collective arbitrability to determine whether Herrington's agreement with Waterstone authorizes the kind of arbitration that took place. If the district court determines that the agreement allows such an arbitration, our decision leaves the district court free to confirm the award. If, however, the district court determines that Herrington's agreement with Waterstone requires single-plaintiff arbitration, it should vacate the award and send the dispute to the arbitrator for a new proceeding." Id. at 511. This disposition tracks the Seventh Circuit's introduction, where it described its ruling as holding "the district court, rather than the arbitrator, must evaluate Herrington's contract with Waterstone to determine whether it permits class or collective arbitration." Id. at 504. Reading between the lines of Herrington: displacement of delegation by an unambiguous class action waiver and the judiciary's unwillingness to require a futile act The Herrington court did not address explicitly the relationship between a class action waiver and a delegation clause. But it acknowledged that the parties' arbitration agreement contained a delegation clause, as well as the normal rule that such a clause will be enforced as long as it "clearly and unmistakably" delegated the arbitrability issue to the arbitrator. 907 F.3d at 507 n.3. And it unambiguously said -- twice -- that the district court, rather than the arbitrator, had to address the enforceability of the class action waiver. Id. at 504, 511. A district court presented with this mandate would be hard-pressed to interpret it as requiring anything other than a prompt determination as to whether the class action waiver should be enforced and the attendant disposition (confirmation or vacatur) of the arbitrator's prior class arbitration award. At least two different rationales support a straightforward application of the Seventh Circuit's mandate. First, an unambiguous class action waiver displaces a general delegation provision, by eliminating any reasonable interpretative issue about the availability of class arbitration. In other words, if the parties unambiguously have agreed that an arbitration cannot proceed on a class-wide or collective basis, then no reasonable interpretative issue as to the availability of class arbitration remains for delegation to the arbitrator. The Herrington court strongly suggested that the class action waiver before it – together with Ms. Herrington's own position, pre-Epic, that the waiver mandated individual arbitration – unambiguously foreclosed class arbitration, thereby obviating any need for a reasonable interpretative dispute on this point to be submitted to the arbitrator. See id. at 506 & n.2 (asking how the availability of class arbitration "reasonably" could be in dispute, given the language of the class action waiver and the employee's position in the court below, and characterizing any argument to the contrary as "implausible"). Second, courts do not "require the doing of a futile act." Ohio v. Roberts, 448 U.S. 56, 74 (1980), abrogated on other grounds by Crawford v. Washington, 541 U.S. 36 (2004); Wisconsin Res. Prot. Council v. Flambeau Mining Co., 727 F.3d 700, 710 (7th Cir. 2013) (same, quoting Roberts); Cross v. Hardy, 632 F.3d 356, 361 (7th Cir. 2011). Given the Supreme Court's recent series of rulings upholding class action waivers (including Epic), any decision by an arbitrator refusing to enforce an unambiguous class action waiver would be subject to vacatur as exceeding the arbitrator's authority under the parties' arbitration agreement. See Herrington, 907 F.3d at 509 n.8 (noting party's ability to seek vacatur of an award where the arbitrators "exceeded their powers"). If the district court would have no choice but to vacate an arbitral award refusing to enforce the class action waiver, then no value would be served by forcing the district court and the arbitrator to engage in that futile exercise. The failure of the Herrington court to address the precise grounds for its holding may reflect the unique procedural posture of the case before it, in which the only issue originally presented on appeal -- the claimed invalidity of the class action waiver under the NLRA -- has been resolved by the Supreme Court's intervening ruling in Epic. But the Seventh Circuit's holding could provide a critical piece of the class arbitration puzzle as corporate defendants endeavor to shut down potential class arbitrations. Where an arbitration agreement contains an unambiguous class action waiver, defendants can argue that no reasonable interpretation issue remains to be delegated to the arbitrator and that any delegation of the class arbitration issue to the arbitrator would be a futile act. [GN] WRIGHT BROS PIZZA: Shortchanges Workers' Wages, Honaker Says ------------------------------------------------------------ Scott Honaker and Rhonda Honaker, on behalf of themselves and those similarly situated, Plaintiffs, v. Wright Bros. Pizza, Inc. and Thomas Wright, Defendants, Case No. 18-cv-01528, (S.D. Ohio, November 27, 2018), seeks appropriate monetary, declaratory and equitable relief for failure to pay minimum and overtime wages as required by the Fair Labor Standards Act, the Ohio Constitution and the Ohio Minimum Wage Fairness Act. Defendants operate 5 Domino's Pizza franchises in Ohio. They allegedly failed to adequately reimburse delivery drivers for their delivery-related expenses. Scott and Rhonda Honaker worked for Defendants as delivery drivers and sometimes as managers at Defendants' Pickerington, Lancaster, Canal Winchester, Potaskula and Marysville locations, working more than 40 hours in one or more workweeks. As a result of unreimbursed automobile expenses and tip-credits, their pay was reduced to below the minimum wages rate, says the complaint. [BN] Plaintiff is represented by: Andrew Biller, Esq. Andrew Kimble, Esq. Philip Krzeski, Esq. MARKOVITS, STOCK & DEMARCO, LLC 3825 Edwards Road, Suite 650 Rookwood Exchange Cincinnati, OH 45209 Tel: (513) 651-3700 Fax: (513) 665-0219 Email: abiller@msdlegal.com akimble@msdlegal.com pkrzeski@msdlegal.com Website: www.msdlegal.com XO GROUP: Agreement Reached in Merger-Related Class Suits --------------------------------------------------------- XO Group Inc. said in its Form 8-K filing with the U.S. Securities and Exchange Commission filed on December 7, 2018, 2018, 2018, that XO Group reached an agreement with the plaintiffs in evy v. Steib et al., Scarantino v. XO Group, Inc. et al., and Driscoll v. XO Group, Inc. et al. On November 6, 2018, a purported XO Group stockholder commenced a putative class action lawsuit, captioned Levy v. Steib et al., No. 614999/2018 (N.Y. Sup. Ct. Nov. 6, 2018) (the "Levy Action"), in the Supreme Court of the State of New York. The complaint names XO Group and the members of XO Group's board of directors as defendants. The complaint alleges, among other things, that the directors of the company breached fiduciary duties owed to the company's public stockholders in approving the proposed merger, including by allegedly omitting material information from the Proxy Statement. Plaintiff seeks, among other things, an order requiring the disclosure of additional information in XO Group's proxy materials, damages, and an award of attorneys' fees. On November 19, 2018, plaintiff petitioned the Court for an Order to Show Cause setting a briefing schedule and argument on his request to enjoin XO Group from closing its December 18, 2018 stockholder meeting until additional disclosure is made by XO Group. On November 26, 2018, the Court set a schedule permitting defendants to submit an opposition brief by December 13, 2018 and scheduling argument on plaintiff’s request for December 14, 2018. On November 21, 2018, a purported XO Group stockholder commenced a putative class action lawsuit, captioned Scarantino v. XO Group, Inc. et al., Case No. 1:18-cv-01814 (D. Del.) (the "Scarantino Action"), in the United States District Court for the District of Delaware. The complaint names XO Group and the members of XO Group's board of directors as defendants. The complaint alleges, among other things, that in connection with the proposed merger, the defendants provided or supervised the providing of allegedly misleading and incomplete disclosures in the Proxy Statement. The complaint seeks to recover under Sections 14(a) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act") for the alleged misstatements and omissions. The complaint seeks declaratory and injunctive relief (including enjoining defendants from proceeding with the XO stockholder vote on the proposed merger or, if the proposed merger has already been implemented, rescinding the transaction and awarding rescissory damages), an order directing defendants to file additional disclosures, and an award of attorneys' and experts' fees. On November 21, 2018, a purported XO Group stockholder commenced a putative class action lawsuit, captioned Driscoll v. XO Group, Inc. et al., Case No. 1:18-cv-10909 (S.D.N.Y.) (the "Driscoll Action," and collectively with the Levy Action and Scarantino Action, the "Actions"), in the United States District Court for the Southern District of New York. The complaint names XO Group and the members of XO Group's board of directors as defendants. The complaint alleges, among other things, that in connection with the proposed merger, the defendants provided or supervised the providing of allegedly misleading and incomplete disclosures in the Proxy Statement. The complaint seeks to recover under Sections 14(a) and 20(a) of the Exchange Act for the alleged misstatements and omissions. The complaint seeks declaratory and injunctive relief (including enjoining defendants from proceeding with the XO stockholder vote on the proposed merger or, if the proposed merger has already been implemented, rescinding the transaction and awarding rescissory damages), monetary damages, and an award of attorneys' and experts' fees. On December 7, 2018, XO Group reached agreement with plaintiffs to resolve the Actions. In connection with the resolution of the Actions, XO Group has agreed to make the following amended and supplemental disclosures (the "Amended and Supplemental Disclosures") to the Proxy Statement. The Amended and Supplemental Disclosures should be read in conjunction with the Proxy Statement, which should be read in its entirety. Defined terms used but not defined herein have the meanings set forth in the Proxy Statement. Plaintiffs have agreed that, following the filing of this Current Report on Form 8-K (this "Report"), they will dismiss the Actions in their entirety, with prejudice as to the named plaintiffs only and without prejudice to all other members of the putative class. The resolution of the Actions will not affect the timing of the special meeting of XO Group shareholders, which is scheduled to be held on December 18, 2018, or the amount of the consideration to be paid to XO Group shareholders in connection with the proposed merger. The resolution of the Actions is not, and should not be construed as, an admission of wrongdoing or liability by any defendant. Likewise, defendants do not believe that any further disclosure regarding the proposed merger is required under applicable laws other than that which has already been provided in the Proxy Statement. Furthermore, nothing in this Report or the resolution of the Action shall be deemed an admission of the legal necessity or materiality of any of the disclosures set forth in this Report. However, to avoid the risk of the Actions delaying or adversely affecting the proposed merger, to minimize the substantial expense, burden, distraction and inconvenience of continued litigation and to resolve plaintiffs' claims asserted in the Actions, XO Group has agreed to make these amended and supplemental disclosures to the Proxy Statement. A copy of the Supplements to the Proxy Statement is available at https://goo.gl/1vdKzf. XO Group Inc. provides multiplatform media and marketplace services to the wedding, pregnancy and parenting, and local entertainment markets primarily in the United States. The company was formerly known as The Knot, Inc. and changed its name to XO Group Inc. in June 2011. XO Group Inc. was founded in 1996 and is headquartered in New York, New York. XPO LOGISTICS: McNiven Suit Removed to S.D. Florida --------------------------------------------------- The case captioned Robert McNiven, and Similarly situated individuals, Plaintiff, v. XPO Logistics Freight, Inc., A Foreign Profit Corporation, Defendant, Case No. CACE-18-025439 was removed from the Circuit Court in and for Broward County, Florida to the United States District Court for the Southern District of Florida on December 4, 2018, and assigned Case No. 0:18-cv-62941-WPD. The District Court has original jurisdiction over this action because it involves a claim alleging violation of federal law, the Fair Labor Standards Act (FLSA). Plaintiff Robert McNiven commenced this civil action against Defendant on October 29, 2018, in the Circuit Court of the Seventeenth Judicial Circuit in and for Broward County, Florida.[BN] The Plaintiff is represented by: Anthony M. Georges-Pierre, Esq. Max L. Horowitz, Esq. REMER & GEORGES-PIERRE, PLLC Courthouse Tower 44 West Flagler Street, Suite 2200 Miami, FL 33130 Phone: (305) 416-5000 Facsimile: (305) 416-5005 Email: agp@rgpattorneys.com mhorowitz@rgpattorneys.com The Defendants is represnetd by: Mendy Halberstam, Esq. Brandon U. Campbell, Esq. JACKSON LEWIS P.C. One Biscayne Tower, Suite 3500 Two South Biscayne Boulevard Miami, FL 33131 Phone: (305) 577-7651 Facsimile: (305) 373-4466 Email: mendy.halberstam@jacksonlewis.com Brandon.campbell@jacksonlewis.com XTO ENERGY: McCollum Seeks to Certify Drilling Consultants Class ---------------------------------------------------------------- The Plaintiffs in the lawsuit styled GARY McCOLLUM and RONNIE BAZE, Individually and on behalf of all others similarly situated v. XTO ENERGY, INC., Case No. 5:18-cv-00080-HE (W.D. Okla.), ask the Court to conditionally certify this class under the Fair Labor Standards Act: All Drilling and/or Completions Consultants who worked for XTO Energy, Inc., anywhere in the United States, at any time during the preceding three years through the present and were not paid overtime. Gary McCollum and Ronnie Baze, individually and on behalf of all members of the putative class, filed this collective action lawsuit pursuant to the Fair Labor Standards Act to recover the unpaid overtime wages, liquidated damages, attorneys' fees, and costs owed to them. The Plaintiffs allege that XTO's failure to pay their Drilling and Completions Consultants the overtime premium required by the law was (and continues to be) improper under the FLSA. The Plaintiffs also ask the Court to (1) order that a judicially approved notice be sent to all FLSA Collective Members by mail and e-mail; (2) approve the form and content of the Plaintiffs' proposed judicial notice and reminder notice; (3) order XTO to produce to the Plaintiffs' counsel the name, last known address, phone number, e-mail address and dates of employment for each of the FLSA Collective Members in a usable electronic format; and (4) authorize a 60-day notice period for the FLSA Collective Members to join the case.[CC] The Plaintiffs are represented by: Clif Alexander, Esq. Lauren Braddy, Esq. Austin Anderson, Esq. ANDERSON ALEXANDER, PLLC 819 North Upper Broadway Corpus Christi, TX 78401 Telephone: (361) 452-1279 Facsimile: (361) 452-1284 E-mail: clif@a2xlaw.com lauren@a2xlaw.com austin@a2xlaw.com - and - Noble K. McIntyre, Esq. MCINTYRE LAW, P.C. 8601 S. Western Avenue Oklahoma City, OK 73139 Telephone: (405) 917-5250 Facsimile: (405) 917-5405 E-mail: noble@mcintyrelaw.com ZIMMER BIOMET: Seeks 9th Cir. Review of Order in Karl FLSA Suit --------------------------------------------------------------- Defendants Zimmer Biomet Holdings, Inc., et al., filed an appeal from a court ruling in the lawsuit titled JAMES KARL, individually and on behalf of all others similarly situated, Plaintiffs, v. ZIMMER BIOMET HOLDINGS, INC., a Delaware corporation; ZIMMER US, INC., a Delaware corporation; BIOMET U.S. RECONSTRUCTION, LLC, an Indiana limited liability company; BIOMET BIOLOGICS, LLC, an Indiana limited liability company; and BIOMET, INC., an Indiana corporation, Case No. 3:18-cv-04176-WHA, in the U.S. District Court for the Northern District of California, San Francisco. As reported in the Class Action Reporter on Nov. 30, 2018, Judge William Alsup denied the Defendants' motions to transfer venue, dismiss and/or strike. Mr. Karl is a resident of Novato, California. He alleges that the Defendants misclassified him and other sales representatives as independent contractors. Based on this, he raises claims for relief for violations of the Fair Labor Standards Act, Industrial Welfare Commission Wage Order 4-2001, the California Labor Code for unpaid wages and overtime premiums, and related California Labor Code claims including: meal and rest period violations, failure to provide itemized wage statements, failure to reimburse business expenses, and related civil and statutory penalties. The appellate case is captioned as Zimmer Biomet Holdings, Inc., et al. v. USDC-CASF, Case No. 18-73216, in the United States Court of Appeals for the Ninth Circuit.[BN] Plaintiff-Real Party in Interest JAMES KARL, on behalf of himself, and on behalf of a class of those similarly situated, is represented by: Alec Segarich, Esq. LOHR RIPAMONTI & SEGARICH LLP 140 Geary Street, 4th Floor San Francisco, CA 94108 Telephone: (415) 683-7945 E-mail: alec.segarich@lrllp.com Defendants-Petitioners ZIMMER BIOMET HOLDINGS, INC., a Delaware Corporation; ZIMMER US, INC., a Delaware Corporation; BIOMET INC., an Indiana Corporation; BIOMET U.S. RECONSTRUCTION, LLC, an Indiana limited liability company; and BIOMET BIOLOGICS, LLC, an Indiana limited liability company, are represented by: Andrea L. Fellion, Esq. Eric Meckley, Esq. MORGAN LEWIS & BOCKIUS LLP One Market Street Spear Street Tower San Francisco, CA 94105 Telephone: (415) 442-1000 E-mail: eric.meckley@morganlewis.com andrea.fellion@morganlewis.com ZOCDOC INC: 2d Cir. Revives Junk Fax Class Action ------------------------------------------------- BloombergLaw reports that ZocDoc Inc. failed a second time to convince the Second Circuit that its offer to settle with the named plaintiff in a junk fax class action should moot the whole case. The ruling cuts off yet another defense attempt to exploit perceived loopholes in the U.S. Supreme Court's Campbell-Ewald Co. v. Gomez ruling. There the court held that rejecting a defendant's offer of full relief doesn't moot a plaintiff's individual or class claims. Radha Geismann M.D. P.C. sued ZocDoc. [GN] ZUMIEZ INC: Oral Argument in Herrera Class Suit Set for Feb. 4 -------------------------------------------------------------- Zumiez Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on December 10, 2018, for the quarterly period ended November 3, 2018, that the date of oral argument in the putative class action entitled, Alexia Herrera, on behalf of herself and all other similarly situated, v. Zumiez Inc., has been scheduled for February 4, 2019. A putative class action, Alexia Herrera, on behalf of herself and all other similarly situated, v. Zumiez Inc., was filed against the company in the Eastern District Count of California, Sacramento Division under case number 2:16-cv-01802-SB in August 2016. Alexandra Bernal filed the initial complaint and then in October 2016 added Alexia Herrera as a named plaintiff and Alexandra Bernal left the case. The putative class action lawsuit against the company alleges, among other things, various violations of California's wage and hour laws, including alleged violations of failure to pay reporting time. In May 2017 the company moved for judgment on the pleadings in that plaintiff's cause of action for reporting-time pay should fail as a matter of law as the plaintiff and the other putative class members did not "report for work" with respect to certain shifts on which the plaintiff's claims are based. In August 2017, the court denied the motion. However, in October 2017 the district court certified the order denying the motion for judgment on the pleadings for immediate interlocutory review by the United States Court of Appeals for the Ninth Circuit. The company then filed a petition for permission to appeal the order denying the motion for judgment on the pleadings with the United States Court of Appeals for the Ninth Circuit, which petition was then granted in January 2018. The company's opening appellate brief was filed on June 6, 2018 and the plaintiff's answering appellate brief was filed August 6, 2018. The company's reply brief to the Plaintiff's answering appellate brief was filed on September 26, 2018 and the date of oral argument has been scheduled for February 4, 2019. Zumiez said, "Given the current status of this case, we are unable to express a view regarding the ultimate outcome or, if the outcome is adverse, to estimate an amount, or range, of reasonably possible loss. We have defended this case vigorously and will continue to do so." Zumiez Inc., founded in 1978, is a mall-based specialty retailer providing sports-related apparel, footwear, equipment, and accessories. It also sells miscellaneous novelties and dvds aimed at young men and women between the ages of 12 and 24 and private-label apparel. The company is based in Everett, Washington. ZURICH AMERICAN: Sued Over Failure to Fulfill Duties to Enrollees ----------------------------------------------------------------- MSP RECOVERY CLAIMS, SERIES LLC, a Delaware entity, and SERIES 16-08-483, a series of MSP Recovery Claims, Series LLC v. ZURICH AMERICAN INSURANCE COMPANY, a New York corporation, Case No. 1:18-cv-07849 (N.D. Ill., November 28, 2018), is brought on behalf of the Plaintiffs and all others similarly situated alleging violations of the Medicare Secondary Payer Act arising from the Defendant's alleged systematic and uniform failure to do two things: * Defendant has failed to fulfill its statutory duties as a "no-fault" insurer; and * Defendant has failed to fulfill its statutory duties upon entering into settlements with Medicare beneficiaries enrolled under Part C of the Medicare Act ("Enrollees"). Zurich American Insurance Company is a New York corporation. Zurich is an insurance company headquartered in Schaumburg, Illinois.[BN] The Plaintiffs are represented by: Eduardo E. Bertran, Esq. Francesco Zincone, Esq. ARMAS BERTRAN PIERI 4960 S.W. 72nd Avenue Miami, FL 33155 Telephone: (305) 461-5100 E-mail: ebertran@armaslaw.com fzincone@armaslaw.com ZWILLING J.A. HENCKELS: Faces Nixon Suit in NY for ADA Violation ---------------------------------------------------------------- A class action lawsuit has been filed against Zwilling J.A. Henckels, LLC. The case is styled as Donald Nixon, on behalf of himself and all others similarly situated, Plaintiff v. Zwilling J.A. Henckels, LLC, Defendant, Case No. 1:18-cv-06920 (E.D. N.Y., December 5, 2018). The lawsuit arises under the Americans with Disabilities Act. Zwilling J.A. Henckels, LLC wholesales cutlery products. The Company offers cookwares, and scissors. Zwilling J.A. Henckels operates worldwide.[BN] The Plaintiff is represented by: Jonathan Shalom, Esq. Shalom Law, PLLC. 124-04 Metropolitan Avenue Kew Gardens, NY 11374 Tel: (718) 971-9474 Email: jshalom@jonathanshalomlaw.com [*] Reed Smith Attorney Discusses Several Class Action Rulings -------------------------------------------------------------- James M. Beck, Esq. -- jmbeck@reedsmith.com -- of Reed Smith LLP, in an article for Lexology, reports that we maintain a number of "scorecards" on legal issues where we judge the defense advantage is sufficiently great that including all cases, even if adverse, does not violate our injunction against doing the other side's research for them. Three of the scorecards -- PMA preemption, generic preemption, and innovator liability, pretty much update themselves from the results of the case alerts we run. The fourth -- cross-jurisdictional class action tolling -- is different. That's something we've been interested in since the Bone Screw litigation. Back in the early 1990s, the idea of class actions in product liability/personal injury hadn't become nearly as risible as it is today. The Bone Screw plaintiffs filed a purported nationwide class action, which lingered in the MDL a while before certification was denied. See In re Orthopedic Bone Screw Products Liability Litigation, 1995 WL 273597 (E.D. Pa. Feb. 22, 1995) (in our federal class action denial cheat sheet). Plaintiffs then claimed that this bogus class action tolled the statute of limitations of every state in the country. That set off a nationwide fight over cross-jurisdictional class action tolling, culminating in victories in Maestas v. Sofamor Danek Group, Inc., 33 S.W.3d 805 (Tenn. 2000), and Wade v. Danek Medical, Inc., 182 F.3d 281 (4th Cir. 1999) (applying Virginia law); amicus victories in Portwood v. Ford Motor Co., 701 N.E.2d 1102 (Ill. 1998), and Ravitch v. Pricewaterhouse, 793 A.2d 939 (Pa. Super. 2002), and a loss (by a different Bone Screw defendant) in Vaccariello v. Smith & Nephew Richards, Inc., 763 N.E.2d 160 (Ohio 2002). Since cross-jurisdictional class action tolling involves many kinds of litigation -- not just prescription medical product liability litigation -- it requires a special effort to update. We did that the other day for the last couple of years, and in so doing we discovered the hijacking effort against the New York statute of limitations mentioned in the title of this post. As is obvious from the scorecard, for many years New York courts have considered, and rejected, cross-jurisdictional class action tolling in decisions involving state law (federal law involves the execrable American Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974) decision). The first New York case to consider if there should be cross-jurisdictional class action tolling in state-law actions was Singer v. Eli Lilly & Co., 549 N.Y.S.2d 654 (N.Y. App. Div. 1990), in which plaintiffs relied on prior, never-certified class actions to extend a special one-year statutory revival of time-barred DES cases. Singer relied on Jolly v. Eli Lilly & Co., 751 P.2d 923 (Cal. 1988), to reject cross-jurisdictional tolling. Class action tolling "must not be regarded as encouragement to lawyers in a case of this kind to frame their pleadings as a class action, intentionally, to attract and save members of the purported class who have slept on their rights." Singer, 549 N.Y.S.2d at 660 (citation and quotation marks omitted). Plaintiffs, like the plaintiff in Jolly, had ample opportunity to assert timely claims, but did not. . . . [T]he mere commencement of the [other] class action did not alert defendants as to the kind of claims alleged by plaintiffs here. Thus, whether viewed as a failure to give the requisite notice or to satisfy the class membership requirement of the earlier action, the American Pipe tolling doctrine should not be applied here. Id. (discussion of Jolly omitted). Likewise, in New York Hormone Replacement Therapy Litigation (Ansley), 2009 WL 4905232 (N.Y. Sup. Nov. 30, 2009), an unsuccessful West Virginia class action could not toll the New York statute of limitations. [T]his court finds defendants' arguments persuasive to conclude that the tolling remedy authorized under the American Pipe doctrine is inapplicable here and does so relying on case law from the federal courts sitting in New York. As defendants note, American Pipe . . . involve[s] limitations periods derived from federal statutes, whereas here only New York law is implicated. . . . The wisdom of adopting the American Pipe rule in mass tort cases is, to say the least, highly debatable. Id. at *? (citations and quotation marks omitted). New York Hormone relied on prior New York precedent involving other state's statutes of limitations. See In re Agent Orange Products Liability Litigation, 818 F.2d 210, 213 (2d Cir. 1987) (no cross-jurisdictional class action tolling under Hawaii law); In re Rezulin Products Liability Litigation, 2005 WL 26867, at *3 (S.D.N.Y. Jan. 5, 2005) (same, applying New Mexico law). See Kaufman v. Sirius XM Radio, Inc., 980 N.Y.S.2d 276 (table), 2013 WL 5429364, at *4 (N.Y. Sup. Sept. 17, 2013) ("well established that American Pipe did not affect state law"; rejecting several arguments for class action tolling under state law) (state court decision). Soward v. Deutsch Bank AG, 814 F. Supp.2d 272 (S.D.N.Y. 2011), was the first of a string of federal court decisions likewise declining to extend class action tolling to unsuccessful state law class actions brought in other jurisdictions. Soward -- a non-personal injury case -- recognized that "the question of ‘whether, and to what extent, the statute of limitations should be tolled by the filing of a putative class action in another jurisdiction' is purely a question of state law." Id. at 281 (quoting Casey v. Merck & Co., 653 F.3d 95, 100 (2d Cir. 2011) (applying Virginia law)). Finding no basis to "import" an expansion of tort law into New York jurisprudence, Soward held: Predicting how New York courts would rule on the issue of cross-jurisdictional tolling would be difficult. The few states that have considered the issue have been split in both their acceptance of cross-jurisdictional tolling and the rationale for their decision. Furthermore, little authority exists as to how a federal court in this Circuit decides whether a state would allow cross-jurisdictional tolling when that state has not addressed the issue. Of the federal courts that have considered this issue, most have refused to extend the doctrine into a state that has yet to consider it. . . . In the face of these overwhelming precedents, I cannot say that New York would adopt cross-jurisdictional tolling and decline to import the doctrine into New York's law. This Court will therefore not toll New York's statute of limitations for the period when the . . . class certification status was pending. Id. at 281-82 (citations and footnotes omitted). In Adams v. Deutsche Bank AG & Deutsche Bank Securities, Inc., 2012 WL 12884365 (S.D.N.Y. Sept. 24, 2012), meritless class actions failed to toll the New York statute of limitations on the strength of Soward and the lack of any contrary New York precedent: Neither party has identified any decision in which a court applying New York law has applied cross-jurisdictional tolling. However, in a thorough and comprehensive survey of the issue, [Soward] recently declined to import the doctrine of cross-jurisdictional tolling into New York law because it is unclear whether New York courts would adopt this principle Significantly, Plaintiffs acknowledge the decision in Soward, and provide absolutely no argument as to why the Court should apply cross-jurisdictional tolling to the facts of this case or why New York courts would adopt this theory. Therefore, the Court declines to import this novel and complex feature into New York law, and finds that Plaintiffs are not entitled to tolling of the limitations period based on either [of] the . . . Class Actions. Id. at *5 (citation omitted). Similarly, in In re Bear Stearns Cos. Securities, Derivative, & ERISA Litigation, 995 F. Supp.2d 291 (S.D.N.Y. 2014), the court extensively discussed cross-jurisdictional class action tolling in concluding that no such thing was recognized under New York law: [Plaintiff's] common law fraud claims are not tolled by the pendency of the Class Action as a matter of New York law. American Pipe tolling does not apply to [plaintiff's] state claims because it only applies to federal law causes of action. In certain circumstances, a New York statute of limitations may be tolled by the pendency of a class action, but New York currently does not recognized tolling where that class action is filed outside New York state court (so-called "cross-jurisdictional tolling"). Cross-jurisdictional tolling is at issue whenever a court considers the timeliness of state law claims originally filed outside that state's courts. Judges in this district have declined to recognize cross-jurisdictional tolling under state law, because such tolling can be applied only if it is clearly recognized by authoritative state court decisions. Id. at 311 (citations omitted). Bear Stearns agreed with the "compelling policy reasons against such tolling" expressed in Vincent v. Money Store, 915 F. Supp.2d 553, 569-70 (S.D.N.Y. 2013), a case applying California law: [U]nless all states simultaneously adopt the rule of cross-jurisdictional class action tolling, any state which independently does so will invite into its courts a disproportionate share of suits which the federal courts have refused to certify as class actions after the statute of limitations has run. 995 F. Supp.2d at 312 (quoting Vincent, 915 F.Supp.2d at 569-70). "[M]ost [federal courts] have refused to extend the doctrine into a state that has yet to consider it." Id. (quoting Soward, 814 F. Supp.2d at 281-82). With no dispute that "New York courts have not yet spoken authoritatively on this issue," the Bear Stearns court refused to expand the scope of New York tort law by permitting cross-jurisdictional class action tolling. 995 F. Supp.2d at 312. Bear Stearns was ultimately affirmed, but without any discussion of cross-jurisdictional class action tolling. SRM Global Master Fund Limited Partnership v. Bear Stearns Cos., 829 F.3d 173 (2d Cir. 2016). In Gould v. Helen of Troy Ltd., 2017 WL 1319810 (S.D.N.Y. March 30, 2017), the plaintiff attempted to argue that American Pipe tolled a New York state-law class action by pointing to prior unsuccessful class actions in other states. Id. at *4. The Court responded with Kaufman's observation that "[i]t is well established that American Pipe did not affect state law." With no New York law supporting cross-jurisdictional tolling, "[p]laintiff's New York . . . claims are not tolled by American Pipe. Id. Several non-New York courts have likewise recognized that state's rejection of cross-jurisdictional class action tolling. See In re Cathode Ray Tube CRT Antitrust Litigation, 27 F. Supp.3d 1015, 1022 (N.D. Cal. 2014) ("the Court follows the Southern District of New York in declining to import American Pipe into New York state law"; citing Soward); Romig v. Pella Corp., 2014 WL 7264388, at *5-6 (D.S.C. Dec. 18, 2014) ("there is no indication that New York recognizes cross-jurisdictional class action tolling and the court declines to establish such a rule in the first instance"); Coe v. Philips Oral Healthcare Inc., 2014 WL 5162912, at *5 (W.D. Wash. Oct. 14, 2014) ("Cross-jurisdictional tolling may be permitted where a class action is filed in New York and makes claims under New York state law; it is not, however, permitted where the class action was filed outside of New York and make no New York claims."). But after 2014, the attempted hijacking begins. It occurred in the context of parallel state class action antitrust claims in the LIBOR MDL litigation – demonstrating once again why defendants quite rightly hate MDLs because transferee judges contort the law to expand liability as a tool to force settlement. There are two LIBOR decisions that recklessly predict that many states – even those with contrary appellate precedent – would allow cross-jurisdictional class action tolling. See In re LIBOR-Based Financial Instruments Antitrust Litigation, 2015 WL 6243526 (S.D.N.Y. Oct. 4, 2015) ("LIBOR II"); In re LIBOR-Based Financial Instruments Antitrust Litigation, 2015 WL 4634541 (S.D.N.Y. Aug. 4, 2015) ("LIBOR I"). Contrary to what prior New York decisions held, LIBOR I stated that "States generally recognize some form of class-action tolling." 2015 WL 4634541, at *127. That's simply false, as our scorecard amply demonstrates. LIBOR I purported to conduct a perfunctory "Erie analysis" without any focus on prior New York law, concluding generally that: Absent state-specific considerations, we believe the best prediction is that a state would recognize cross-jurisdictional tolling. The most salient consideration is that the reasoning of American Pipe and analogous state-court cases applies with equal force regardless of whether a class action is filed in the same jurisdiction as the subsequent individual action or in a different jurisdiction. Some federal courts seem to have applied a presumption against cross-jurisdictional tolling out of a concern over federal interference with state policy. But a proper respect for state judiciaries does not require such timidity. 2015 WL 4634541, at 129-30, citing nothing supportive of these propositions, omitting citations to Erie decision LIBOR I refused to follow. The same Erie "analysis," if it can be called that, was followed, verbatim, in LIBOR II. See 2015 WL 6243526, at *139-40. As a result, these blatantly result oriented opinions simply refused to follow prior New York precedent on cross-jurisdictional class action tolling: Soward . . . concluded, "I cannot say that New York would adopt cross-jurisdictional tolling and decline to import the doctrine into New York's law." Relying on Soward (and on other federal cases dealing with non-New York law), Judge Sweet more recently found "compelling" the concern that a state "will invite into its courts a disproportionate share of suits which the federal courts have refused to certify as class actions" by accepting cross-jurisdictional tolling. We respectfully disagree with our fellow judges' predictions of New York law. Specifically, we disagree with our colleagues' prediction that New York would reject cross-jurisdictional tolling to the extent that those decisions are predicated on floodgate concerns. LIBOR I, 2015 WL 4634541, at *133-34; LIBOR II, 2015 WL 6243526, at *145 (citations omitted). The LIBOR decisions thus violated the most fundamental aspect of Erie -- that "[a] federal court in diversity is not free to engraft onto those state rules exceptions or modifications which may commend themselves to the federal court, but which have not commended themselves to the State in which the federal court sits." Day & Zimmerman, Inc. v. Challoner, 423 U.S. 3, 4 (1975). The Second Circuit in particular has long cautioned: [T]he proper function of this Court is to ascertain what New York law is, and not to speculate about what it will be, or in Learned Hand's felicitous phrase, "to embrace the exhilarating opportunity of anticipating a doctrine which may be in the womb of time, but whose birth is distant." Spector Motor Service v. Walsh, 139 F.2d 809, 823 (2d Cir. 1943) (dissent), vacated 323 U.S. 101 (1944). It is certainly not our function to apply the rule we think better or wiser. Garland v. Herrin, 724 F.2d 16, 17 (2d Cir. 1983) (emphasis added). In more modern terms, this same inherent Erie conservatism has been expressed as an admonition that "we are mindful that our role as a federal court sitting in diversity is not to adopt innovative theories that may distort established state law." Travelers Insurance Co. v. Carpenter, 411 F.3d 323, 329 (2d Cir. 2005) (citation and quotation marks omitted). Thus the current attempt to hijack the New York statute of limitations through cross-jurisdictional class action tolling began with two essentially identical decisions that ignored prior precedent and made an Erie prediction while turning Erie on its head. The hijacking continued in Famular v. Whirlpool Corp., 2017 WL 2470844 (S.D.N.Y. June 7, 2017), a purported economic loss class action. First, the court in Famular claimed "not [to be] aware of a New York state court that has addressed whether New York recognizes tolling based on a case filed outside New York." Id. at *7. Well, we've cited three such decisions in this blogpost – Singer, New York Hormone, and Kaufman – so somebody didn't look very hard. Second, Famular opted to follow LIBOR, including its subversion of the Erie doctrine: [Defendant] argues the Court should follow a line of federal cases refusing to apply cross-jurisdictional tolling because New York courts have not recognized cross-jurisdictional tolling. . . . [T]he bulk of the contrary authority relies on a presumption against cross-jurisdictional tolling. But the reasoning underlying this presumption is unpersuasive. First, some courts have suggested that a federal court should not impose a legal doctrine where the state courts have not determined an uncertain issue. This is sometimes explained by "a concern over federal interference with state policy." But this reasoning is unsound because it ignores the federal courts' duty in these cases. As the Second Circuit has repeatedly instructed, when New York's courts have not decided an issue of state law, it is the federal court's "job to predict how the New York Court of Appeals would decide the issue[]". . . . Thus, the Court would be ignoring its duty by adopting a presumption against imposing a legal rule the state courts have not addressed without a reasoned basis for doing so. Second, [defendant] argues the Court should not recognize cross-jurisdictional tolling based on docket-control concerns. In [LIBOR], the court convincingly explains that the justification for rejecting cross-jurisdictional tolling -- namely, "a risk that a state will attract individual out-of-state plaintiffs after a failed federal class action" -- is unpersuasive, at least in New York. Id. at *7-8 (citations omitted). That rationale simply not the law -- it's the opposite of the law. Erie does not give federal courts applying state law a blank check to write on a blank slate. So we thought we'd take a look at what courts in the Second Circuit have actually "repeatedly instructed." For example, how often has the injunction in Travelers v. Carpenter against Erie predictions of "innovative" liability theories been cited? How about: [W]e must apply the statute as it has been interpreted and applied by New York's highest court. As we have previously explained, "our role as a federal court sitting in diversity is not to adopt innovative theories that may distort established state law. Instead we must carefully predict how the state's highest court would resolve the uncertainties that we have identified." Runner v. New York Stock Exchange, Inc., 568 F.3d 383, 386 (2d Cir. 2009) (citations omitted); accord National Union Fire Insurance Co. v. Stroh Cos., 265 F.3d 97, 106 (2d Cir. 2001); City of Johnstown, N.Y. v. Bankers Standard Ins. Co., 877 F.2d 1146, 1153 (2d Cir. 1989); Avedisian v. Quinnipiac University, 387 F. Appx. 59, 60 (2d Cir. 2010); Shillingford v. Astra Home Care, Inc., 293 F. Supp.3d 401, 416 (S.D.N.Y. 2018); In re General Motors LLC Ignition Switch Litigation, 2016 WL 3996243, at *2 (S.D.N.Y. July 22, 2016); Versatile Housewares & Gardening Systems, Inc. v. Thill Logistics, Inc., 819 F. Supp.2d 230, 236 (S.D.N.Y. 2011); In re Methyl Tertiary Butyl Ether (MTBE) Products Liability Litigation, 274 F.R.D. 106, 112 (S.D.N.Y. 2011); Empire City Capital Corp. v. Citibank, N.A., 2011 WL 4484453, at *2 (S.D.N.Y. Sept. 28, 2011); Musaji v. Banco do Brasil, 2011 WL 2507712, at *3 (S.D.N.Y. June 21, 2011); Travelers Casualty & Surety Co. v. Dormitory Authority, 735 F. Supp.2d 42, 88 (S.D.N.Y. 2010); Liddle & Robinson, LLP v. Garrett, 720 F. Supp.2d 417, 424 (S.D.N.Y. 2010); Hunt v. Enzo Biochem, Inc., 471 F. Supp.2d 390, 412 n.140 (S.D.N.Y. 2006); Cooper Industries, Inc. v. Agway, Inc., 987 F. Supp. 92, 104 (N.D.N.Y. 1997) (adding, "this Court will not create or extend New York law to recognize such a novel duty; that is the bailiwick of New York's courts and legislature"). That's five Second Circuit cases and twice that number of New York district court cases. And before that formulation, we had the more colorful version originally penned by Judge Learned Hand, and quoted, above, in Garland, 724 F.2d at 17. The distinctive language makes that proposition particularly easy to search for. Several additional Second Circuit and New York District Courts have used Judge Hand's terminology to embrace the principle that Erie precludes the sort of expansive predictions of state law consciously engaged in by the courts in LIBOR and Famular. See, in addition to Garland: Hausman v. Buckley, 299 F.2d 696, 704 (2d Cir. 1962); Katt v. City of New York, 151 F. Supp.2d 313, 335 n.17 (S.D.N.Y. 2001), aff'd in pertinent part, 372 F.3d 83 (2d Cir. 2004); Levesque v. Kelly Communications, Inc., 1993 WL 22113, at *6 (S.D.N.Y. Jan. 25, 1993); Eskimo Pie Corp. v. Whitelawn Dairies, Inc., 284 F. Supp. 987, 993 (S.D.N.Y. 1968). But on the question of cross-jurisdictional class action tolling under New York law, the hijacking of the New York statute of limitations by federal courts determined to facilitate class actions has proceeded apace in 2018. Chavez v. Occidental Chemical Corp., 300 F. Supp.3d 517, 530 (S.D.N.Y. 2018), reconsideration denied, 2018 WL 620488 (S.D.N.Y. Jan. 29, 2018), became the first case purporting to apply cross-jurisdictional class action tolling in a personal injury action. Perhaps emboldened by current political practices, Chavez falsely stated that "Courts in this District have split, 2–2, on in their predictions as to whether the New York Court of Appeals would apply cross-jurisdictional tolling as a matter of New York law." Id. at 530 (omitting Gould and Adams decisions discussed above). Fake precedent! Chavez then followed the Erie error that LIBOR began, also characterizing the refusal to predict "expand[ing]" state-law liability -- the position embraced in the seven Second Circuit cases just discussed -- as "timidity." Id. "[L]argely for the reason stated in LIBOR" Chavez predicted that that an unsuccessful class action, filed anywhere (the plaintiffs weren't even Americans), would trump the New York statute of limitations even though more than 17 years had elapsed. Id. at 532. At least Chavez agreed to certify the issue to the Second Circuit. Id. at 538 ("Whether New York law permits cross-jurisdictional class action tolling is both a disputed question of law in this District and an issue whose resolution in plaintiffs' favor is a necessary predicate to the continued survival of this complex and important multi-national litigation"). That appeal is pending. See Chavez v. Occidental Chemical Corp., No. 18-1120 (2d Cir.). Most recently, Hart v. BHH, LLC, 323 F. Supp.3d 560 (S.D.N.Y. 2018), reconsideration denied, 2018 WL 5729294 (S.D.N.Y. Nov. 2, 2018), described Chavez as "the most recent and persuasive case law in this District." Id. at 556. Following Chavez, Hart needed only one paragraph to conclude that cross-jurisdictional class action tolling, arising from failed Ohio class action, trumped the New York statute of limitations in a warranty class action brought in New York. Id. We can only hope that the Second Circuit continues its decades of insistence on Erie conservatism in the Chavez appeal. However, there's a possibility that the court won't even have to reach the question -- and for the best of reasons. In June of this year, while the Chavez appeal was pending, the Supreme Court decided that American Pipe tolling does not allow stacking of one class action after another. See China Agritech, Inc. v. Resh, 138 S. Ct. 1800, 1811 (2018) ("the Rules do not offer . . . a reason to permit plaintiffs to exhume failed class actions by filing new, untimely class claims"). Without ever having to consider state law, the Court rejected the perverse practice of seriatim class actions, all based on American Pipe, tolling statute of limitations effectively forever: [Plaintiffs'] proposed reading would allow the statute of limitations to be extended time and again; as each class is denied certification, a new named plaintiff could file a class complaint that resuscitates the litigation. . . . [T]he time for filing successive class suits, if tolling were allowed, could be limitless. . . . Most statutory schemes provide for a single limitation period without any outer limit to safeguard against serial relitigation. Endless tolling of a statute of limitations is not a result envisioned by American Pipe. Id. at 1808-09 (citations and footnotes omitted). All of the recent New York Erie-offending cross-jurisdictional class action tolling decisions -- LIBOR, Famular, Chavez, and Hart -- were, like China Agritech, class actions seeking to take advantage of the purported tolling effect of an earlier, unsuccessful class action (or, in Chavez, multiple, successive failed class actions). Thus, they should all independently fall under China Agritech -- unless the purveyors of class actions are now going to argue that hypothetical New York cross-jurisdictional class action tolling (not affirmatively recognized by any New York court) is even broader than the federal American Pipe doctrine. A fortiori, we don't think that any possible reading of New York law would extend American Pipe to this absurd extreme. With class action stacking now prohibited under the American Pipe doctrine, assertion of cross-jurisdictional class action tolling on the same theory should decrease considerably. Finally, the fact that all recent New York cross-jurisdictional class action tolling decisions (including the favorable Bear Stearns and Gould decisions) have involved plaintiffs attempting to stack one class action on another in contravention of American Pipe, should open the eyes of those courts that tend to exhibit almost blind faith in the class action mechanism and seek to extend it in various and sundry ways. This includes similar, concurrent attempts being made to carve out class actions from constitutional Due Process constraints on personal jurisdiction under Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017) (most recently discussed), as well as proponents of cy pres distributions. Frankly, class actions, at least those seeking money damages, are no longer (if they ever were) instruments for pursuit of social good. Rather they are tools that the lawyers bringing them use for personal enrichment. They can bring big, scary-looking lawsuits without even the bother of dealing with real clients. Rather than benefiting society, they extort huge fees for themselves, and little if anything for the supposed classes, by bringing litigation that, without class actions, would be too trivial for anybody to bother with. This kind of bottom-feeding litigation is of no benefit to anyone but lawyers. The kind of "enforcement" these class actions purport to pursue, if needed, can be brought far more efficiently and equitably by law enforcement and/or administrative agencies. The abusive litigation and legal gamesmanship on a grand scale that Rule 23, and similar state rules, have engendered is why we believe that Rule 23(b) should simply be done away with, and that Congress and other legislative bodies should decide whether (and under what standards) any particular statute, or common-law claim, should support representative litigation. [GN] [*] Switzerland Proposes New Class Action Procedure --------------------------------------------------- Urs Feller, Esq. -- urs.feller@prager-dreifuss.com -- and Nina Lim, Esq. -- nina.lim@prager-dreifuss.com -- of Prager Dreifuss, in an article for Mondaq, report that a proposed new class action procedure should allow companies to make a 'clean break' while facilitating a more efficient dispute resolution process overall. In Switzerland, typical class actions as known in many other jurisdictions are not available. However, 'Dieselgate' and similar cases also affect consumers in Switzerland. If a large number of people suffer the same or similar damage, each has to file their claim individually. While total damages are usually large the individual claims may be relatively small, which means many individuals do not assert their claims because of the disproportionate risk-benefit relationship. Under current Swiss law, only associations are allowed to bring group actions in their own name for a violation of the personality of their members, provided the articles of association authorise these associations to do so. The Swiss Federal Council (government) now proposes to allow group actions not only for the violation of personal rights but for all claims under Swiss private law, including financial claims. Furthermore, it proposes to introduce a dispute resolution mechanism that would allow companies to find a collective settlement for mass claims for all affected parties. Group actions Since the introduction of the Swiss Civil Procedure Code in 2011, not a single group action has been filed by an association or organisation. By revising the law on group actions, the Federal Council intends to introduce more suitable legal tools to this area of dispute resolution. As before, only associations and other organisations of national or regional importance are allowed to bring group actions. These associations and organisations may not be profit-oriented and must be found fit to protect the interests of their group. They can assert group actions and damaged parties can participate in the claim by an 'opt-in' concept. To ensure all parties are aware of proceedings, the organisations have to notify those parties known to them and also inform the public by means of media releases such as newspapers or online advertisements. Damaged parties who have already filed an individual claim can join the group action by simultaneously declaring withdrawal of their own action. Collective settlement procedures Besides extending the scope for group actions, the Swiss Federal Council also proposes to introduce a new procedure to collectively settle mass disputes. A company causing damage to a substantial number of possible claimants can agree on a settlement with one or more of the organisations that represent the damaged parties and can act on their behalf and in their interest. This offers the defendant the possibility of settling the dispute outside the courtroom, which can be advantageous for reputational reasons. The settlement agreement has to be submitted to the Cantonal High Court for approval by the defendant and the claimants. Once the settlement agreement has been presented for approval, the court will invite the parties to a public hearing and order them to inform third parties potentially affected about the content of the agreement and the possibility of participating in the proceedings. The court will then review the settlement agreement with regard to its appropriateness. If the court confirms the agreement, it will declare it binding for all damaged parties who did not declare their withdrawal within a certain period (the 'opt-out' concept). If a damaged party opts out, the settlement agreement does not become binding for them and they may file an individual claim. Implications of the changes The proposals by the Federal Council are a step towards strengthening collective redress in Switzerland. By extending the scope of group actions and introducing the collective settlement procedure, the Federal Council hopes to break down barriers of access to the courts for damaged parties. The new collective settlement procedure should allow a company to make a clean break, while facilitating more efficient dispute resolution by enabling courts to resolve a number of similar cases in a single proceeding. The consultation phase for interested parties on the proposals ended on 11 June 2018. It is expected that the Federal Council will present a draft law to parliament for consideration as the next step. [GN] ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2018. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000. *** End of Transmission ***