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/raid1/www/Hosts/bankrupt/CAR_Public/181227.mbx C L A S S A C T I O N R E P O R T E R Thursday, December 27, 2018, Vol. 20, No. 259 Headlines ADT LLC: Tadlock Sues over Unwanted Telemarketing Calls ALLSTATE INDEMNITY: Court OKs Dismissal of Perry Suit AMALIE OIL: Sued over Sale of XCEL Premium Passenger Car Motor Oil AMERICAN MEDICAL: Faces Farro FDCPA Suit in District of New Jersey AMERICAN OSTEOPATHIC: Judge Okays $84MM Class Action Settlement AMERITECH MOBILE: Class Certification in Satterfield Suit Reversed APPLE INC: Ct. Narrows Doc Production in iPhone 6 Touchscreen Suit APPLE INC: Orshan Appeals N.D. California Decision to 9th Circuit ASN FAITH: Marc Suit Alleges FLSA Violations AUBURN CONSTRUCTORS: Faces Baker Labor Suit in Calif. State Suit AUSTRALIA: Victoria Braces for Class Action from Gangland Crooks BB&T CORP: Settles 401(k) Class Action for $24MM BEAUTIFUL HOLLYWOOD: Faces Honeywell ADA Suit in S.D. Florida BELLISIMO MASONRY: Ganadara Seeks Overtime Wages for Laborers BERKS COUNTY, PA: Victory's Bid for Class Certification Denied BOJANGLES' INC: Faces Shareholder Suit Over Merger With Durational BROWARD COLLEGE: Hovenga Seeks Unpaid Wages & Commissions C & A TRANSPORTATION: Ornelas Seeks Minimum Wage for Truck Drivers CALIBER HOME: Court Dismisses Data Security Breach Class Action CALIFORNIA FINE: Faces Blackshear Labor Suit in Calif. State Court CALIFORNIA: Court Dismisses State Prisoner's Suit CANADA: Class Action Over Ontario's Training Schools Certified CANADA: Indigenous Women Sue Over Foreced Sterilization CELTIC SERVICES: Parada Sues Over Unpaid Overtime Compensation CHARTER COMMS: Plaintiff Ordered to Show Cause in TCPA Case CHEMOURS: Class Action Attorney Provides Update on GenX Case CHG EMPLOYEE: Hale Seeks Overtime Pay for Patient Care Nurses CITIZENS FOR RAUNER: Stratics Group Removes Suit to N.D. Ill. COLLECTION ANALYST: Ct. Awards $28.5K Attorney's Fees in Powers COLLECTION ASSOCIATES: Kanehl Moves for Certification of Class CONNOLLY MASONRY: Ex-worker Seeks Unpaid Wages, Damages COSMETIC INSTITUTE: Breast Augmentation Class Action Can Proceed COSMETIC INSTITUTE: Breast Surgery Class Action Set for Trial COVENANT TRANSPORT: Tabizon Labor Suit Moved to C.D. California CREDIT BUREAU: Class Certification Sought in O'Boyle Suit CREDIT SYSTEMS: Whalen's Proceedings on Bid to Certify Stayed DESERT STATES: Koch Seeks to Recover Pension Benefits Under ERISA DOUBLE DOWN: Seeks 9th Circuit Review of Ruling in Benson Suit DOUGLAS K. WHITE: Faces Pagan et al. Suit in M.D Pennsylvania DRIFT HOTEL: Faces Honeywell ADA Suit in S.D. Florida DYNAMIC RECOVERY: Jones-Bell Suit Alleges FDCPA Violation EDISON BALLROOM: Dawson-Wainer Files Bid for Judicial Intervention EL PUNTO PERUANO: Fails to Pay Overtime Under FLSA, Lemos Claims FEDERAL AVIATION: Wins Bid to Dismiss $5 Registration Rule FG KEY: Faces Honeywell ADA Suit in Southern District of Florida FINANCE SYSTEM: Seventh Circuit Appeal Filed in Larkin Suit FLOWERS BAKING: Button Suit Moved to Central Dist. of California GEICO GENERAL: Savage Suit Moved to Southern District of Florida GENERAL ELECTRIC: Court Dismisses Count III in ERISA Suit GRAMERCY PARK HOTEL: Ullo Hits Illegal Tip Pool, Seeks Overtime Pay GUILLERMO PRADO: Wins Final OK of $275K Settlement in Ledo Suit HASBRO INC: Faces Stockholders Class Action HAVEN'S KITCHEN: Faces Delacruz ADA Suit in S.D. New York HEALTH KOREA: Shin Sues over Misleading Advertising Scheme HOMELAND SECURITY: Pending Motions Stricken without Prejudice HOSPITALITY VENTURES: Bid for Class Certification Denied as Moot HUUUGE INC: Appeals Decision in Wilson Suit to 9th Circuit IDT TELECOM: Lainez Suit Seeks to Stop Unwanted Text Messages INNOVIS DATA: Consumers Sue Over Erroneous Credit Reports J. FRED: Restaurant Not Fully Accessible to Disabled, Suit Claims JP ENVIRONMENTAL: Restaurant Staff Seeks Unpaid Overtime Premium JPMORGAN CHASE: Loses Bid to Dismiss Suit Over BBSW KISTLER FORD: K. Payne Suit Remains in Ohio District Court KMPG LLP: Seyfarth Shaw Attorneys Discuss Class Action Ruling LEADERS IN COMMUNITY: Court Narrows Claims in Edwards Suit MAINE: Court Dismisses Gladu Class Allegations MARRIOTT INT'L: DiCello Levitt Files Data Breach Class Action MARRIOTT INT'L: Hiteshew Seeks Authority to File Class Suit MARRIOTT INT'L: Jan. 30 Lead Plaintiff Motion Deadline Set MARRIOTT INTERNATIONAL: Dorfman Sues Over Data Breach MARRIOTT INTERNATIONAL: Faces Kimmel Suit Over Data Breach MOM'S BODY: Lara Mertens Seeks Payment of Past Wages MONINI NORTH: Truffle Oil Class Action Dismissal Affirmed MORGAN STANLEY: Motion to Dismiss Discrimination Case Granted NASSAU COUNTY, NY: Court Denies Bid to Dismiss Gurrieri FLSA Suit NEOSTRATA CO: Settlement in Horton Labor Suit Has Prelim Approval NEW BALANCE: Court Denies 2nd Class Certification Bid in Dashnaw NFSM PIZZA: McFadden Wants to Recover Wages for Delivery Drivers NISSAN: Faces Class Action Over Defective Braking Systems NORTH SHORE: Certification of Class Sought in O'Boyle Suit NOW LLC: Richards et al. Suit Moved to Central Dist. of California PACIFIC UNION: Mortgage Borrowers File Class Action PEBBLE BEACH: Court Affirms $180K Attys' Fees Award in Orozco Suit PINNACLE FOODS: Faces False Advertising Class Action PNC BANK: Kennedy-Rose Sues Over Illegal Bank Charges PORTFOLIO RECOVERY: Bid for Judgment on Pleadings in Madinya Okayed PORTFOLIO RECOVERY: Bulger & Hamadeh Sue over Debt Collection PRINCESS ANNE MOTEL: Faces Honeywell ADA Suit in S.D. Florida PTT LLC: Wash. Court Denies Bid to Dismiss Wilson Suit PURDUE PHARMA: Faces Sherman Suit in District of Minnesota QWEST CORP: Bid to Dismiss/Transfer Seiffert Suit Under FLSA Denied RAINBOW DISPOSAL: Hurtado Seeks to Certify Class RAMS: Settles Class Action Over St. Louis Seat Licenses RENZENBERGER INC: Ford Labor Suit to Recover Unpaid Overtime Wages ROYALTY PUPPIES: Inda Seeks Unpaid Wages, Commissions RWI TRANSPORTATION: Craft Settlement Has Final Court Approval SAMSUNG ELECTRONICS: Judge Tosses 2nd Amended Class Action SAMUEL SPICER: Md. App. Certifies Question in Price MCLL Suit SENDGRID INC: Chen Files Suit Over Twilio Merger Deal SENTOSA NURSING: Filipino Nurses' Class Action Can Proceed SPRINT/UNITED: Court Certifies Three Classes in Caudle Suit STATE FARM: Court OKs Dismissal of Cranfield Suit STONY HOLLOW: Beck Settlement Has Final Court Approval SUNRISE DETOX III: Dunleavey Sues Over Illegal SMS Ads SYKES ENTERPRISES: Kronzer FCRA Suit Moved to M.D. Florida TICKETMASTER: Defends Class Action Over Ticket Scalpers TIGER BRANDS: Lawyers to File Listeriosis Class Action Next Year TIGER BRANDS: To Cooperate with Listeriosis Class Action TRES DIAMANTE RESTAURANT: Flores et al. Seek Minimum & OT Wages TRINITY RESTAURANT: Conditional Certification Bid, Partly Granted UBER TECHNOLOGIES: Drivers Petition to Compel Arbitration UNITED STATES: Settlement Restores Migrants' US Asylum Rights UNIVERSITY OF ARIZONA: Chemistry Professor Files Class Action WEBLOYALTY.COM INC: LS Appeals Decision in EFTA Breach Suit WILLIAMS PLANT: Gounder Seeks Overtime Wages WOLVERINE WORLD: Faces Henry Suit in Delaware Federal Court WOODSTREAM CORPORATION: Painter Suit Removed to N.D. Ohio [*] Swansea Water District May Get Class Action Settlement Payout ********* ADT LLC: Tadlock Sues over Unwanted Telemarketing Calls ------------------------------------------------------- Jo Lynne Tadlock, on behalf of herself and others similarly situated, the Plaintiff, vs. ADT LLC, the Defendant, Case No. 1:18-cv-25077-MGC (S.D. Fla., Dec. 4, 2018), seeks damages and other equitable and legal remedies resulting from the unlawful conduct of ADT in placing telemarketing calls to the cellular telephones of Plaintiff and Class members without their prior express written consent, in violation of the Telephone Consumer Protection Act. According to the complaint, on August 15, 2018, the Plaintiff received a call from ADT promoting its security services. The Plaintiff has never been a customer of ADT and never consented to receive telemarketing calls from ADT. The Plaintiff brings this class action on behalf of herself and others who received ADT's telemarketing calls without consenting to receive such calls. The Plaintiff did not provide her cellular phone number to ADT and did not consent to receive these calls. She has no prior affiliation with ADT. The Plaintiff's cellular phone number has been registered on the national do-not-call registry since August 4, 2010, the lawsuit says. ADT LLC is a privately owned company with headquarters located in Boca Raton, FL. The Company's line of business involves electronic security systems.[BN] Counsel for Plaintiff and the Proposed Class: Adam M. Moskowitz, Esq. Howard M. Bushman, Esq. Adam A. Schwartzbaum, Esq. THE MOSKOWITZ LAW FIRM, PLLC Alhambra Plaza, Suite 601 Coral Gables, FL 33134 Telephone: (305) 740-1423 E-mail: adam@moskowitz-law.com howard@moskowitz-law.com adams@moskowitz-law.com - and - Simon S. Grille, Esq. Daniel C. Girard, Esq. Simon S. Grille, Esq. GIRARD GIBBS LLP 601 California Street, 14th Floor San Francisco, CA 94108 Telephone: (415) 981-4800 E-mail: dcg@girardgibbs.com sg@girardgibbs.com ALLSTATE INDEMNITY: Court OKs Dismissal of Perry Suit ----------------------------------------------------- The United States District Court for the Northern District of Ohio, Eastern Division, issued an Opinion granting Defendant's Motion to Dismiss the case captioned ANDREA PERRY, individually and on behalf of all other Ohio residents similarly situated, Plaintiff, v. ALLSTATE INDEMNITY COMPANY, ET AL., Defendants. Case No. 1:16CV01522. (N.D. Ohio). This matter comes before the Court following Defendants Allstate Indemnity Company and eight affiliated companies' (Allstate) Motion to Dismiss. Perry filed a class action lawsuit alleging one count of Breach of Contract against Allstate with the Cuyahoga County Court of Common Pleas. Perry's home suffered water damage on June 28, 2015 and she submitted a claim to Allstate requesting coverage. An adjuster inspected the damage and an estimate for repair was sent to Perry. The total estimated cost to repair the damage, the replacement cost value, was $32,965.09. Allstate calculated the depreciation amount at issue in this case to be $4,570.35. It subtracted this amount and Perry's deductible from the replacement cost value to arrive at a net ACV payment to Perry of $28,394.74. No Ambiguity Exists in the Contract Ambiguity exists when a term is subject to more than one reasonable interpretation. Ambiguous provisions will be construed strictly against the insurer and liberally in favor of the insured. However, courts cannot create ambiguity if none exists. Plain Meaning Analysis of ACV To determine whether Allstate's depreciation calculation breached the contract, the Court examines the term Actual Cash Value (ACV), which is undefined within the policy. Giving the wording in the policy its natural and reasonable construction, ACV is not ambiguous. ACV has been defined as replacement cost minus normal depreciation or fair market value. Either of these definitions could fit within the contract clause without resulting in absurdity. In fact, the policy states that an actual cash value payment may include a depreciation deduction. Perry seeks to limit the definition of ACV to exclude labor and CO&P from depreciation. However, there is nothing within the text of the contract to indicate that this was the intent of the parties at the time that the contract was formed. Further, the plain meaning of depreciation is inclusive of labor and CO&P. The ordinary meaning of depreciation has been defined as a reduction in the value or price of something; specif., a decline in an asset's value because of use, wear, obsolescence, or age. A depreciation method is a set formula used in estimating an asset's use, wear, or obsolescence over the asset's useful life or some portion thereof. As evidenced by Black's Law Dictionary, depreciation commonly focuses on the value of the whole product, rather than the component parts. Therefore, as used in the policy, ACV cannot reasonably be interpreted to exclude labor and CO&P from a depreciation calculation. Ohio Case Law Analysis of ACV When contractual terms are undefined, courts also look to Ohio case law to determine their meaning. Here, support also exists for finding ACV is unambiguous. The term ACV has been used in Ohio insurance case law for over 150 years. Like Black's Law Dictionary, Ohio law has defined ACV to mean either the market value of the property at the time of the loss or the cost of repair or replacement less depreciation for age and condition. Additionally, the exact same language found in the policy at issue has been determined to be clear and unambiguous by an Ohio appellate court. While persuasive authority, these appellate court decisions lend support to a clear and unambiguous finding. Analysis of Ohio Administrative Code Definition of ACV Here, the Court finds that the regulation outlining the method to determine ACV is clear and unambiguous. Further, because the regulation states less any depreciation, a plain meaning analysis of ACV in this regulation requires an inclusive definition of depreciation. Read naturally, the word any has an expansive meaning. There are no stated limitations or exclusions. Therefore, it is reasonable for the Court to interpret depreciation to include labor and CO&P as well as materials. Since no ambiguity exists in the contract and a calculation of the ACV could depreciate labor and CO&P as well as materials, there is no breach of contract as a matter of law. Therefore, the Court grants Allstate's Motion to Dismiss. A full-text copy of the District Court's November 26, 2018 Opinion and Order is available at https://tinyurl.com/y8q7voed from Leagle.com. Andrea Perry, individually and on behalf of all other Ohio residents similarly situated, Plaintiff, represented by Daniel P. Goetz -- dgoetz@weismanlaw.com -- Weisman, Kennedy & Berris, James A. DeRoche, Garson Johnson, Patrick J. Perotti -- pperotti@dworkenlaw.com -- Dworken & Bernstein, R. Eric Kennedy -- ekennedy@weismanlaw.com -- Weisman, Kennedy & Berris & Stuart I. Garson, Garson Johnson. Allstate Indemnity Company, Allstate Property & Casualty Insurance Company, Allstate Insurance Company, Allstate Vehicle & Property Insurance Company, Encompass Home & Auto Insurance Company, Encompass Insurance Company of America, Encompass Indemnity Company, Encompass Property & Casualty Company & Esurance Insurance Company, Defendants, represented by Kristine M. Schanbacher -- kristine.schanbacher@dentons.com -- Dentons US, Leah R. Bruno, Dentons US, Mark L. Hanover, Dentons US, pro hac vice & Gregory R. Farkas -- gfarkas@frantzward.com -- Frantz Ward. AMALIE OIL: Sued over Sale of XCEL Premium Passenger Car Motor Oil ------------------------------------------------------------------ BRANDON OPALKA and RYAN O'CONNOR, individuals, on behalf of themselves and all others similarly situated, the Plaintiffs, vs. AMALIE OIL COMPANY, a Florida Corporation, the Defendant, Case No. 81762738 (Fla. 11th Cir. Ct, Miami-Dade Cty., Dec. 6, 2018), seeks redress for the deceptive and unfair trade practices, acts, and omissions employed by Defendant in the marketing and sale of its XCEL Premium passenger car motor oil. According to the complaint, using deceptive and unfair tactics, Defendant manufactures, markets, advertises, and sells XCEL Oil, which is considered "obsolete" by the American Petroleum Institute ("API"), receiving an "API SA" rating. The Product is unsuitable, harmful, ineffective as a motor oil for automotive engines manufactured after 1930. Despite the fact that XCEL Oil is unsuitable for automotive engines, Defendant continues to sell the Product to Florida citizens, using product packaging intentionally conveying the impression that the Product is meant for use in modern passenger car automotive engines. Indeed, the Product is labeled as "automotive oil." The label not only misleads reasonable consumers, but also contains flat-out falsehoods. The Plaintiff purchased a bottle of XCEL Premium SAE lOW-40 in late 2016 from a gas station in Seminole County based on Defendant's label, which led Mr. O'Connor to purchase the Product based on the belief that it was a motor oil suitable for his vehicle and offered engine protection. Mr. O'Connor relied on Defendant's representations and omissions that the Product was a suitable motor oil for his vehicle and offered engine protection in passenger car automotive engines in making his purchase and would not have purchased the Product, or would not have paid a premium for it, had Defendant not made the misrepresentations and omissions. Through its labeling, Defendant intentionally disguised its Product as that which it is not: automotive oil that protects automotive engine, the lawsuit says. Amalie Oil Company is an American company that manufactures various weights of motor oil, synthetic oil, transmission fluid, and other automotive fluids. The company was founded in Franklin, Pennsylvania in 1903, giving rise to its current slogan "Better than it has to be... Since 1903.[BN] Attorneys for Plaintiff: Harley S. Tropin, Esq. Benjamin J. Widlanski, Esq. Robert Neary, Esq. Tal J. Lifshitz, Esq. KOZYAK TROPIN & THROCKMORTON LLP 2525 Ponce de Leon Blvd., 9th Floor Miami, FL 33134 Telephone: (305) 372-1800 Facsimile: (305) 372-3508 E-mail: bwidlanski@kttlaw.com tjl@kttlaw.com - and - Allan Kanner, Esq. Cynthia St. Amant, Esq. KANNER & WHITELEY, LLC 701 Camp Street New Orleans, Louisiana 70130 Telephone: (504) 524-5777 Facsimile: (504) 524-5763 E-mail: a.kanner@kanner-law.com c.stamant@kanner-law.com - and - Ryan Casey, Esq. CASEY LAW FIRM, LLC 20 NE Thompson Street Portland, Oregon 97212 Telephone: (503) 928-7611 Facsimile: (503) 345-7470 E-mail: ryan@rcaseylaw.com AMERICAN MEDICAL: Faces Farro FDCPA Suit in District of New Jersey ------------------------------------------------------------------ A class action lawsuit has been filed against American Medical Collection Agency. The lawsuit is styled as ANDREW FARRO, on behalf of himself and all others similarly situated, the Plaintiff, vs. AMERICAN MEDICAL COLLECTION AGENCY and JOHN DOES 1-25, the Defendants, Case No.: 2:18-cv-16820-JLL-SCM (D.N.J., Dec. 4, 2018). The suit alleges Fair Debt Collection Act violation. The case is assigned to the Hon. Judge Jose L. Linares. American Medical Collection Agency or AMCA is a debt collection agency.[BN] Attorneys for Plaintiff: Joseph K. Jones, Esq. JONES, WOLF & KAPASI, LLC 375 Passaic Avenue, Suite 100 Fairfield, NJ 07004 Telephone: (973) 227-5900 Facsimile: (973) 244-0019 E-mail: jkj@legaljones.com AMERICAN OSTEOPATHIC: Judge Okays $84MM Class Action Settlement --------------------------------------------------------------- Charles Toutant, writing for New Jersey Journal, reports that a federal judge in Camden has granted final approval to an $84 million settlement of an antitrust class action against the American Osteopathic Association. The suit targeted a policy requiring physicians who seek board certification in osteopathy to buy membership in the association at an annual rate of $683. The settlement calls for the AOA to end the disputed policy coupling board certification with membership in the association, and to reduce the membership fee by $90, to $593. The settlement also calls for the AOA to waive an annual $90 certification fee for three years; allow members to take two free continuing medical education courses for free annually through December 2021; and spend $4 million between 2019 and 2021 on a brand awareness campaign for osteopathic physicians. The costs of the settlement terms over three years comes to $84.2 million. The association has roughly 48,000 members practicing osteopathy, 32,000 of whom are AOA-board certified. The value of the settlement was calculated based on an assumption that AOA membership will decline 3 percent as a result of the elimination of the challenged rule. The judge also approved counsel fees of $2.62 million, which is slightly less than the lodestar amount of $2.65 million. The lodestar is based on a blended rate of $601 and 4,418 hours spent investigating and litigating the case. The judge also approved service awards of $15,000 each to the four class representatives. U.S. District Judge Noel Hillman of the District of New Jersey granted final approval to the settlement after rejecting a claim by the attorneys general of Arizona, Idaho, Louisiana, Rhode Island and Texas that the settlement is structured in a manner that conflicts with the U.S. Supreme Court's guidance in a 2011 case, Wal-Mart Stores v. Dukes. The five states' attorneys general argued in an amicus curiae brief that individualized damages claims could not be certified under R. 23(b)(2) because class members may not opt out of such a settlement. The attorneys general argue that the settlement raises due process violations because under R. 23(b)(2), class members cannot opt out of the settlement and pursue individual claims for monetary damage. But Judge Hillman said he did not find the objections of the attorneys general compelling. The class notice clearly stated that damage claims in the suit would be extinguished in the settlement, and none of the notice recipients objected, he said. In addition, the present case did not raise concerns of collusion between named plaintiffs, class counsel and defense attorneys to resolve the case in a manner that addressed only their interests. Wal-Mart involved an employer and its employees, an arm's-length relationship that has historically been the basis for abusive conduct, the judge said. But the defendant in the present case is a private membership association with "significant aspects of self-regulation and governance." The AOA's board of trustees approved the settlement and its House of Delegates agreed to the dues decrease, Judge Hillman said. "Thus, the AOA's governing body, filling essentially the same shoes as the states' attorneys' general under 28 U.S.C. 1715, agreed that the settlement was fair to itself as an organization as well as to its individual members. This is a classic case of institutional reform, for which Rule 23(b)(2) is the precise vehicle," Judge Hillman said. Judge Hillman noted with frustration that the efforts of the attorneys general were "seriously misguided and myopic; their ardor and zeal badly misplaced." The settlement reflects, "as Rule 23(b)(2) must, the concrete over the ephemeral, the real over the hypothetical, and the tangible over unfounded fears," Judge Hillman said. Still, amici continued "in their quixotic quest to vindicate a principle that is not offended, on behalf of their citizens who have not complained," he said. "And in doing so, they have succeeded in delaying approval of the settlement, have frustrated its orderly administration and ultimately sought to scuttle an agreement that promised real, tangible and substantial benefit to literally thousands of their own citizens in each of their respective states," Judge Hillman said. Arizona Assistant Attorney General Drew Ensign represented the amici. A spokeswoman for the Arizona Attorney General's office, Katie Conner, said in a statement, "We believe we flagged significant problems in the brief we filed on behalf of bipartisan attorneys general and we're disappointed with the outcome. To date, we've led more than a dozen class action fairness challenges, many of them bipartisan. We've always put consumers first and we will continue to fight on their behalf." James Greenberg -- jgreenberg@duanemorris.com -- of Duane Morris in Cherry Hill, representing the class, said Hillman's ruling "nailed it," adding that much of what was in the opinion was what he argued in his court papers. Jeffrey Lorell -- jlorell@saiber.com -- of Saiber in Florham Park, representing the AOA, did not respond to requests for comment. [GN] AMERITECH MOBILE: Class Certification in Satterfield Suit Reversed ------------------------------------------------------------------ In the case, SATTERFIELD ET AL.; INTERMESSAGE COMMUNICATIONS, Appellee, v. AMERITECH MOBILE COMMUNICATIONS, INC., ET AL.; CINCINNATI SMSA LIMITED PARTNERSHIP, Appellant, Case No. 2017-0684 (Ohio), Judge Sharon L. Kennedy of the Supreme Court of Ohio reversed the judgment of the Eighth District Court of Appeals granting class certification, and ordered the trial court to dismiss the matter. In the discretionary appeal from a judgment of the Eighth District, the Judge considers the parameters established by R.C. 4905.61 regarding the parties that have standing to bring a treble-damages action pursuant to that statute. Appellee Intermessage, and the members of a proposed class of retail cellular-telephone-service subscribers seek to recover treble damages under R.C. 4905.61 for regulatory violations committed in the mid-1990s when those regulatory violations—as determined by the Public Utilities Commission of Ohio ("PUCO")-related to the wholesale cellular-service market. The origins of the current action arose in October 1993, when Westside Cellular, Inc., doing business as Cellnet, filed a multicount complaint with the PUCO against Ameritech and other wholesale cellular-service providers. The Judge focuses on only the allegations against Ameritech and the resolution of those allegations in the Cellnet order because Ameritech is the only wholesale cellular-service provider involved in the current dispute. Cellnet, a cellular-telephone-service reseller, had purchased cellular service on a wholesale basis from Ameritech, rebranded the service, and marketed it on a retail basis. It alleged that Ameritech had engaged in rate discrimination against it. More specifically, Cellnet claimed that Ameritech had failed to offer cellular service, equipment, and features to Cellnet on a wholesale basis at the same rate Ameritech had charged its own retail businesses. It also claimed that Ameritech had failed to maintain separate operations and records for its wholesale and retail businesses. In 2001, the PUCO issued the Cellnet order, finding that Ameritech had engaged in numerous practices that were prohibited by R.C. Chapter 4905. Ameritech appealed the findings of the PUCO in the Cellnet order as of right to the Court. The Court affirmed. Based upon the PUCO's ruling regarding Ameritech's activities in the wholesale cellular-service market, Intermessage and two other named Plaintiffs who are no longer involved in the litigation -- Cindy Satterfield and Cindy Satterfield, Inc., also known as Highland Speech Services, Inc. -- filed the instant class-action complaint against Ameritech and other parties in December 2003. Because only the claims of Intermessage and the proposed class against Ameritech are at issue in the case as it comes to the Court, the Judge will limit discussion of the facts to those parties. Intermessage was a retail purchaser of cellular-telephone service from Ameritech. It entered into contracts with Ameritech for cellular-telephone numbers and used the accompanying service to back up alarm systems that Intermessage sold to its customers. Intermessage paid Ameritech for the retail cellular service and then passed those costs on to its customers. Intermessage initially sought to define the class as all subscribers to Ameritech Mobile service from 1993-1998 and sought recovery under several different theories of relief, including under R.C. 4905.61. Intermessage claimed that the practices Ameritech had engaged in -- practices for which the PUCO had already found Ameritech liable -- included preventing cellular-service resellers from entering the Ohio market and from increasing the resellers' market shares. Intermessage further alleged that these practices caused each member of the proposed class to pay more for cellular-telephone service than the retail market otherwise would have charged. The trial court in 2006 and 2008 made several rulings that limited Intermessage's class action against Ameritech to recovery only under R.C. 4905.61 and only for the period Oct. 18, 1993, through Sept. 8, 1995. The trial court eventually granted Intermessage's motion for class certification, certifying a class under Civ.R. 23(A) and (B)(3) consisting of all retail subscribers of Ameritech who purchased service with an Ohio area code within geographic areas in which the PUCO decision found wholesale price discrimination during the period Oct. 18, 1993 through Sept. 8, 1995 upon its finding that the statutory prerequisites for class certification had been satisfied. The Eighth District Court of Appeals affirmed, concluding that the trial court had not abused its discretion in certifying the class. Ameritech contends that Intermessage's class action cannot survive because the plain meaning of R.C. 4905.61 provides standing to sue only to those persons or entities whose rights the PUCO has expressly found were violated. In other words, it maintains that the statutory language unequivocally limits standing to persons or entities directly injured by the violations found by the PUCO. Ameritech asserts that there is no language in R.C. 4905.61 that authorizes a class-action lawsuit for indirect harms allegedly caused by a violation of the rights of some other person or entity. Intermessage counters that the Court should not adopt Ameritech's interpretation, because Ameritech seeks to have the Court ignore the actual language of the statute -- which gives standing to "the person injured" by a violation -- and Ameritech also seeks to have the Court insert the phrase "whose rights the PUCO expressly finds to have been violated" into the statute. Judge Kennedy finds that the Cellnet order reveals that pursuant to R.C. 4905.61, the parties injured by the violations -- Ameritech's discriminatory behavior -- were nonaffiliated cellular-telephone-service resellers in the wholesale market, i.e., direct purchasers of wholesale cellular service from Ameritech. Intermessage was not a cellular-telephone-service reseller in the wholesale market. It was a purchaser of cellular service. It was a retail customer of Ameritech that purchased cellular service to back up its alarm systems, and any injuries it suffered were qualitatively different from those found in the Cellnet order, meaning that Intermessage's injuries were indirect and remote. The fact that Intermessage simply passed those costs on to its customers does not make Intermessage a reseller in the wholesale market. Intermessage's customers were not purchasing cellular service from Intermessage. Its customers were purchasing an alarm system with backup features that relied on Ameritech's cellular service. Therefore, Intermessage and the other retail customers of Ameritech in the proposed class that were similarly indirectly injured are unable to bring an action for treble damages pursuant to R.C. 4905.61 based upon the violations found in the Cellnet order. Because the language of R.C. 4905.61 limits recovery of treble damages to the "person, firm, or corporation" directly injured as a result of the "violation, failure, or omission" found by the PUCO, Judge Kennedy holds that Intermessage and members of the proposed class of retail cellular-service subscribers lack standing to bring an action pursuant to R.C. 4905.61. She therefore reversed the judgment of the court of appeals and ordered the trial court to dismiss the matter. A full-text copy of the Court's Dec. 18, 2018 Order is available at https://is.gd/g6jfFf from Leagle.com. Hahn, Loeser & Parks, L.L.P., Robert J. Fogarty -- rjfogarty@hahnlaw.com -- Dennis R. Rose -- drrose@hahnlaw.com -- and Royce R. Remington -- rrr@hahnlaw.com; Gary, Naegele & Theado, L.L.C., and Thomas R. Theado -- office@gntlaw.com; Randy J. Hart, L.L.P., and Randy J. Hart -- randyjhart@gmail.com; Tricarichi & Carnes, L.L.C., and Carla M. Tricarichi; and Law Offices of Mark Griffin and Mark D. Griffin -- mgriffin@bakerdonelson.com -- for appellee. Tucker Ellis, L.L.P., Irene C. Keyse-Walker -- irene.keyse-walker@tuckerellis.com -- and Benjamin C. Sassé -- benjamin.sasse@tuckerellis.com; and Calfee, Halter & Griswold, L.L.P., and James F. Lang -- jlang@calfee.com -- for appellant. Bricker & Eckler, L.L.P., Anne Marie Sferra -- asferra@bricker.com -- Drew Campbell -- dcampbell@bricker.com -- and Bryan Smeenk -- bsmeenk@bricker.com -- urging reversal for amici curiae Ohio Counsel of Retail Merchants, Ohio Insurance Institute, Ohio Alliance for Civil Justice, and Ohio Association of Civil Trial Attorneys. Mac Murray & Shuster, L.L.P., Betty D. Montgomery -- ‎bmontgomery@mslawgroup.com -- and Patrick W. Skilliter -- pskilliter@mslawgroup.com -- urging reversal for amicus curiae Betty D. Montgomery, former Attorney General of Ohio. K&L Gates, L.L.P., and J. Nicholas Ranjan; and Donald T. Boyd, urging reversal for amici curiae Chamber of Commerce of the United States of America and Ohio Chamber of Commerce. Steven T. Nourse, urging reversal for amicus curiae Ohio Power Company, d.b.a. AEP Ohio. Rocco O. D'Ascenzo, urging reversal for amicus curiae Duke Energy Ohio, Inc. Joshua R. Eckert, urging reversal for amici curiae Ohio Edison Company, Cleveland Electric Illuminating Company, and Toledo Edison Company. Michael J. Schuler, urging reversal for amicus curiae Dayton Power and Light Company. APPLE INC: Ct. Narrows Doc Production in iPhone 6 Touchscreen Suit ------------------------------------------------------------------ The United States District Court for the Northern District of California, San Jose Division, issued an Order granting in part and denying in part Plaintiffs' Motion to Compel Production in the case captioned THOMAS DAVIDSON, ET AL., Plaintiffs, v. APPLE, INC., Defendant. Case No.16-cv-04942-LHK (VKD). (N.D. Cal.). The Plaintiffs move to compel defendant Apple, Inc. (Apple) to supplement its document production and an interrogatory response. The Plaintiffs allege that the Apple iPhone 6 and iPhone 6 Plus suffer from a material manufacturing defect that causes the touchscreen to become unresponsive to users' touch inputs. The Plaintiffs allege that a defect in the iPhones' external casing causes this touchscreen malfunction. According to plaintiffs, the logic board inside the iPhones contains two touchscreen controller chips that are responsible for converting touches on the touchscreen into actions in Apple's iPhone software. The Court denies plaintiffs motion to compel with respect to the following requests or portions of requests: RFP (First) No. 5: All documents that refer to, discuss or analyze, in whole or in part, any component of the external casing of the iPhones . RFP (First) No. 15: All documents that constitute, refer to, discuss or analyze, in whole or in part, any testing of the iPhones, including, but not limited to quality control, performance testing, pre-production testing, design failure mode and effects analysis, failure mode and effects analysis, failure mode and effects management, fault tree analysis, Ishikawa diagrams, as well as any remedial efforts referred to, discussed, or analyzed as a result of such testing whether adopted by defendant or not. RFP (First) No. 18: All documents that refer to, discuss or analyze, in whole or in part, any potential or actual changes, revisions, or modifications made to the iPhones, whether contemplated in the iPhones or in successive versions or releases of the iPhones. RFP (First) No. 29: All documents that constitute, refer to, discuss or analyze, in whole or in part, any complaints, from any source, relating to the external casing of the iPhones otherwise deviating from your manufacturing and/or design specifications. RFP (First) No. 34: All documents that constitute, refer to, discuss or analyze, in whole or in part, your response to any complaints from any source regarding iPhones with external casing that otherwise deviated from your manufacturing and/or design specifications. RFP (First) No. 36: All documents that constitute, refer to, discuss or analyze, in whole or in part, standard operating procedures related to the external casing of the iPhones otherwise deviating from your manufacturing and/or design specifications. RFP (First) No. 37: All communications between you and your authorized stores, repair centers, or other field locations regarding iPhones with external casing that may otherwise deviate from your manufacturing and/or design specifications. RFP (First) No. 46: All reports related to investigations of potential failures, defects, or other problems with the iPhones, including any draft(s). RFP (First) No. 49: All documents exchanged between defendant and any third parties relating to the external casing of the iPhones otherwise deviating from your manufacturing and/or design specifications. Interrogatory No. 2: State the number of complaints, warranty claims, and inquiries regarding the external casing of the iPhones otherwise deviating from your manufacturing and/or design specifications that you have received. Post-Release Documents and Information Concerning Bending, Twisting or Flexing of the Casing The Court understands that Apple has already produced all responsive pre-release documents relating to the design and testing of the iPhone 6 and iPhone 6 Plus casing, in compliance with Judge Lloyd's December 14, 2017 order. In addition, the Court understands that Apple has already produced all post-release responsive documents and information that relate to the bending, twisting, or flexing of the iPhone 6 and iPhone 6 Plus to the extent they concern the touchscreen defect or the mechanisms that lead to the touchscreen defect, including the disruption of the connections between the touchscreen controller chip and the logic board. If such productions have not been made, Apple must produce all such responsive material now. The broader discovery plaintiffs' seek is not directly related to the claims and defenses actually in dispute, and while the Court appreciates plaintiffs' thesis that a broader scope of discovery might yield additional support for plaintiffs' argument that Apple should have known its iPhones would suffer a touchscreen defect, the sheer breadth of plaintiffs' requests and their delay in moving to compel this discovery weigh strongly against the relief they seek. The Court recognizes that plaintiffs' motion is technically timely, but it is also very late in the discovery period. Moreover, it appears that plaintiffs compromised on much of the discovery they now seek to compel as part of their proposed resolution of the discovery dispute briefed to and resolved by Judge Lloyd. They now seek to regain ground they arguably gave up to resolve an earlier dispute. This too weighs against the relief plaintiffs seek. Accordingly, the Court denies plaintiffs' motion to compel discovery with respect to all other aspects of RFP (First) Nos. 5, 29, 34, 36, 37 and 49, and RFP (Third) Nos. 8 and 9, and Interrogatory No. 2. Documents and Information Concerning Apple's Defenses The Plaintiffs seek production of documents responsive to RFP (Third) Nos. 6 and 7. These document requests seek relevant information about Apple's primary defense, which is that the touchscreen defect is caused by users dropping their iPhones and not by the bending, twisting, or flexing of the casing. Apple represented at the hearing that it has produced all responsive documents that compare or contrast the drop rates of the iPhone 5 and the iPhone 6s on the one hand, and the iPhone 6 and iPhone 6 Plus on the other hand. Assuming Apple has produced these responsive documents, plaintiffs are entitled to no further production. If Apple has not produced all responsive documents it shall produce them now. In summary, with respect to RFP (First) Nos. 5, 29, 34, 36, 37 and 49, and RFP (Third) Nos. 8 and 9, and Interrogatory No. 2, the Court orders Apple to produce all pre-release documents and information relating to the design and testing of the iPhone 6 and iPhone 6 Plus casing, and all post-release documents and information that relate to the bending, twisting, or flexing of the iPhone 6 and iPhone 6 Plus to the extent they concern the touchscreen defect or the mechanisms that lead to the touchscreen defect, including the disruption of the connections between the touchscreen controller chip and the logic board. The Court also orders Apple to produce all documents responsive to RFP (Third) Nos. 6 and 7. A full-text copy of the District Court's November 26, 2018 Order is available at https://tinyurl.com/ya8woe2y from Leagle.com. Thomas Davidson, Todd Cleary, Jun Bai, Adam Benelhachemi, Brooke Corbett, Kathleen Baker, Taylor Brown, Michael Pajaro, Heirloom Estate Services, Inc., John Borzymowski & Justin Bauer, Plaintiffs, represented by David Christopher Wright -- dcw@mccunewright.com -- McCune Wright Arevalo, LLP, Gregory F. Coleman, Greg Coleman Law PC, Adam A. Edwards, Greg Coleman Law PC, pro hac vice, Bruce Daniel Greenberg -- bgreenberg@litedepalma.com -- Lite Depalma Greenberg LLC, pro hac vice, Joseph G. Sauder -- jgs@mccunewright.com -- McCuneWright, LLP, pro hac vice, Matthew David Schelkopf -- mds@mccunewright.com -- McCuneWright LLP, pro hac vice, Mitchell M. Breit -- mbreit@simmonsfirm.com -- SIMMONS HANLY CONROY, LLC, pro hac vice, Paul J. Hanly, Jr. -- phanly@simmonsfirm.com -- Simmons Hanly Conry LLC, pro hac vice, Stephen Gerard Larson -- slarson@larsonobrienlaw.com -- Larson O'Brien LLP, Susana Cruz Hodge -- scruzhodge@litedepalma.com -- Lite DePalma Greenberg, LLC, pro hac vice & Richard D. McCune, Jr. , McCune Wright Arevalo, LLP. Apple, Inc., Defendant, represented by Arturo J. Gonzalez -- agonzalez@mofo.com -- Morrison & Foerster LLP, David Ramraj Singh -- david.singh@weil.com -- Weil, Gotshal and Manges LLP, Alexandria Armida Amezcua -- aamezcua@mofo.com -- Morrison & Foerster LLP, Ashley K. Nakamura -- anakamura@mofo.com -- Morrison Foerster, LLP, Christopher Leonard Robinson -- christopherrobinson@mofo.com -- Morrison & Foerster LLP, David Michael Walsh, Esq. -- dwalsh@mofo.com -- Morrison & Foerster, Diane P. Sullivan -- diane.sullivan@weil.com -- Weil, Gotshal and Manges LLP, pro hac vice, Penelope Athene Preovolos -- ppreovolos@mofo.com -- Morrison & Foerster LLP, Sabrina Larson -- slarson@mofo.com -- Morrison and Foerster, LLP & Tiffany Cheung -- tcheung@mofo.com -- Morrison & Foerster LLP. APPLE INC: Orshan Appeals N.D. California Decision to 9th Circuit ----------------------------------------------------------------- Plaintiffs Christopher Endara, David Henderson and Paul Orshan filed an appeal from a court ruling in their lawsuit entitled Paul Orshan, et al. v. Apple Inc., Case No. 5:14-cv-05659-EJD, in the U.S. District Court for the Northern District of California, San Jose. As reported in the Class Action Reporter on Nov. 29, 2018, Judge Edward J. Davila granted Apple's motion to dismiss all of the claims in the Second Amended Complaint ("SAC") with prejudice. Plaintiffs Orshan, Endara, and Henderson filed the class action suit against Apple on behalf of themselves and others similarly situated, alleging that Apple violated various consumer protection laws by misleading consumers regarding the storage capacity of certain mobile devices running iOS 8. The Plaintiffs initiated the action on Dec. 30, 2014 and filed their First Amended Complaint ("FAC") on April 9, 2015. The Plaintiffs are California consumers who purchased Apple products running iOS 8. According to the allegations in the FAC, all the three Plaintiffs purchased their devices in reliance on the Defendant's claims, on its website, advertisements, product packaging, and other promotional materials, that the devices came with 16GB of storage space and they expected that capacity would be available for their personal use. Contrary to these expectations, anywhere from 18.1% to 23.1% of this capacity (2.9 to 3.7 GB) was used by iOS 8 and not available to the Plaintiffs for personal storage. The Plaintiffs alleged that had they known this, they would not have upgraded to iOS 8, would not have purchased the 16GB of storage capacity or would not have been willing to pay the same price for it. The appellate case is captioned as Paul Orshan, et al. v. Apple Inc., Case No. 18-17329, in the United States Court of Appeals for the Ninth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Appellants Christopher Endara, David Henderson and Paul Orshan's opening brief is due on February 4, 2019; -- Appellee Apple Inc.'s answering brief is due on March 5, 2019; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Plaintiffs-Appellants PAUL ORSHAN, CHRISTOPHER ENDARA and DAVID HENDERSON, individually, and on behalf of all others similarly situated, are represented by: Ling Kuang, Esq. Michael Andrew McShane, Esq. Sean Clinton Woods, Esq. AUDET & PARTNERS, LLP 711 Van Ness Avenue, Suite 500 San Francisco, CA 94102 Telephone: (415) 568-2555 E-mail: lkuang@audetlaw.com mmcshane@audetlaw.com cwoods@audetlaw.com - and - Charles LaDuca, Esq. CUNEO GILBERT & LADUCA, LLP 4725 Wisconsin Avenue NW, Suite 200 Washington, DC 20016 Telephone: (202) 789-3960 E-mail: charlesl@cuneolaw.com Defendant-Appellee APPLE INC. is represented by: Matthew David Powers, Esq. O'MELVENY & MYERS LLP Two Embarcadero Center, 28th Floor San Francisco, CA 94111 Telephone: (415) 984-8898 E-mail: mpowers@omm.com ASN FAITH: Marc Suit Alleges FLSA Violations -------------------------------------------- James Marc, Berthe Thermile, Terrell Hunter, Wiveline Petitdo, and other similarly situated individuals v. ASN Faith Corp dba 7-Eleven, George Moshen, and Amir George, Case No. 1:18-cv-24856 (S.D. Fla., November 20, 2018), seek to recover money damages for unpaid minimum wages, overtime wages, and retaliatory discharge under the Fair Labor Standards Act. The Plaintiffs allege that The Corporate Defendant knew and showed reckless disregard for the provisions of the Act concerning the payment of minimum wages and remain owing the Plaintiffs and those similarly situated these minimum and overtime wages. The Plaintiffs were employed by the Corporate Defendant as store clerks for the Corporate Defendant's business. The Defendants operated as an organization which sells and markets its services and goods to customers from throughout the United States and also provides its services for goods sold and transported from across state lines of other states. [BN] The Plaintiffs are represented by: R. Martin Saenz, Esq.re SAENZ & ANDERSON, PLLC 20900 NE 30th Avenue, Ste. 800 Aventura, FL 33180 Tel: (305) 503-5131 Fax: (888) 270-5549 E-mail: msaenz@saenzanderson.com AUBURN CONSTRUCTORS: Faces Baker Labor Suit in Calif. State Suit ---------------------------------------------------------------- A class action lawsuit has been filed against Auburn Constructors Inc. The lawsuit is captioned as Larry Baker and on behalf of all others similarly situated, the Plaintiff, vs. Auburn Constructors Inc. and Does 1-100, the Defendants, Case No. 34-2018-00245759-CU-OE-GDS (Calif. Super. Ct., Dec. 4, 2018). The suit alleges employment-related violation. Auburn Constructors, Inc., a general contractor, provides construction services for water/wastewater treatment plants, and water/wastewater pumping facilities.[BN] Attorneys for Plaintiff: Galen T. Shimoda, Esq. Shimoda Law Corp. 9401 E Stockton Blvd Ste 200, Elk Grove, CA 95624 Telephone: (916) 525-0716 Facsimile: (916) 760-3733 E-mail: attorney@shimodalaw.com AUSTRALIA: Victoria Braces for Class Action from Gangland Crooks ---------------------------------------------------------------- The Australian Associated Press reports that a senior Melbourne barrister says Victoria should prepare to be sued by some of the state's worst gangland crooks who have learned their lawyer also acted as a police informant. Philip Dunn QC said he feels ashamed to be part of the state's legal system, following the shocking revelations which have sparked national outcry and a royal commission. He warned the fallout could cost the state millions of dollars and take years to resolve. The informant lawyer, who cannot be named but was known as 3838, represented numerous high-profile figures, including drug lord Tony Mokbel. The Director of Public Prosecutions has already written to 20 people about their convictions -- and more cases dating from 2005 to 2009, when she acted as an informant, are being assessed. It could open the door for criminals to appeal their convictions. "It's going to spiral into a lot more. The Victorian government better brace itself for a class action, made worse by the fact the police sat on this for a number of years," Dunn told AAP. The barrister said 3838 was viewed as a gangland lawyer who had become close to some clients, but she was not suspected of working with police at the time. "It's like a rotten maggot in the apple of justice and it's just wrong," Dunn said, expressing fears it could damage public confidence in the courts and trust in the police. "It actually makes me feel ashamed to be part of the system that produced this." The Law Council of Australia said the actions of the lawyer were unethical and concerning. "A lawyer purporting to act as counsel for the convicted person, while also covertly informing against them, is a fundamental breach of a lawyer's duties to the court," president Morry Bailes said. Former homicide detective and police union boss Ron Iddles said 10 to 15 "very senior police" would have known what was happening, and warned force bosses in 2009 the situation could trigger a royal commission. "It was always going to come out, I think, and be a mess," he told 3AW. Chief Commissioner Graham Ashton was at the time part of a steering committee overseeing several operations that could have used the lawyer in question. Peter Faris QC, former chairman of the National Crime Authority, represented Mt Mokbel after the supergrass lawyer, and told ABC radio on Dec. 4 Ashton should step aside. But the police chief maintained the confidence of the government. The extent of what was known by police will be a focus of the $7.5 million royal commission announced by the Victorian government. The probe will be headed by two interstate commissioners to prevent conflicts of interest, and Mr Ashton and now-Supreme Court justices might have to give evidence, Attorney-General Jill Hennessy said. [GN] BB&T CORP: Settles 401(k) Class Action for $24MM ------------------------------------------------ Richard Craver, writing for Winston-Salem Journal, reports that BB&T Corp. has agreed to pay $24 million to settle a federal class-action lawsuit targeting the bank and managers of its 401(k) plan. The Employee Retirement Income Security Act, or ERISA, lawsuit was filed by 12 named plaintiffs in May 2016. A motion was submitted on Dec. 3 to federal Judge Catherine Eagles asking the court to enforce the terms the settlement. An agreement was reached on Nov. 30, though BB&T continues to dispute the allegations and denies liabilities for any alleged fiduciary breaches or ERISA violations. There is the potential for 67,000 current and former employee claimants, considering the settlement time frame of Sept. 4, 2009, to Oct. 25, 2018. BB&T had 36,233 full- and full-time equivalent employees as of Sept. 30. "We are pleased to have resolved the claims involving supervision of our 401(k) plan and believe a voluntary settlement is the best way for all parties to move forward, avoid a costly trial and further extend an already lengthy litigation process," BB&T said in a statement. Jerry Schlichter, lead attorney for the plaintiffs, said the settlement "will provide compensation to the BB&T employees and retirees, as well as improvements to their plan so that they will be able to build their retirement assets in a meaningful way." The lawsuit claims participants are being charged excessive fees for often underperforming proprietary mutual funds. In August 2017, Eagles approved class-action lawsuit status for the complaint. Also named as defendants are current and past board directors, the corporation's employee-benefits plan committee and two subsidiaries associated with the mutual funds. Record keeping has been done by Branch Banking & Trust Co. as trustee. The $24 million goes into a gross settlement fund. A fairness hearing won't occur before April 15. The fund amount will be used to pay $8 million in attorney fees and $1.1 million in attorney costs. Having one-third of the settlement amount go to attorney fees is typical. The named plaintiffs would each receive an additional $20,000 settlement payment. Notices will be sent by first-class mail to the last known addresses of current and former employees. There will be a website created -- www.BB&T401ksettlement.com -- for participants. According to the settlement, current employees would have their reimbursement paid into their 401(k) plan. Former employees could get their reimbursement sent in a check or as a rollover into another retirement account. Most class members would receive their reimbursement as tax-deferred. The judge approved two law firms to serve as lead counsel, including Schlichter, Bogard & Denton of St. Louis, which gained a $32 million settlement in May 2016 in a similar lawsuit involving Novant Health Inc. The plaintiffs accuse the defendants of overloading the 401(k) plan with BB&T's proprietary mutual funds, including having no nonproprietary mutual funds until 2009. They claim the actions of the plan and its fiduciaries cost participants "tens of millions of dollars in retirement savings." The complaint lists four counts of breach of duties of loyalty and prudence, and one count each of failure to monitor fiduciaries, prohibited transactions between plan and party in interest, and prohibited transactions between plan and fiduciary. The plaintiffs want all defendants to be held "personally liable to make good to the plan all losses resulting from each breach of fiduciary duties or prohibited transaction," as well as to disgorge all money gained if it is determined excessive fees were charged. They want all fiduciaries accused of breach of duties to be removed from the plan. The BB&T plan had more than $1 billion in assets at the end of 2014 within six proprietary Sterling Capital Management LLC funds. Altogether, 63 percent of the plan's $2.93 billion in assets were invested in proprietary BB&T options as of Dec. 31, 2014. "These defendants chose the BB&T funds not based on their merits as investments, or because doing so was in the interest of plan participants, but because these products provided significant revenues and profits to BB&T Corp. and its subsidiaries," the complaint states. "Defendants generated profits for BB&T Corp. and its subsidiaries, while the plan suffered losses due to excessive administrative and investment management fees and poor performance." BB&T argued the plaintiffs' claims should be dismissed "because it is based solely on a hindsight analysis of market performance. The courts have consistently held that the ultimate outcome of an investment is not proof of its imprudence." [GN] BEAUTIFUL HOLLYWOOD: Faces Honeywell ADA Suit in S.D. Florida ------------------------------------------------------------- A class action lawsuit has been filed against Beautiful Hollywood, LLC. The lawsuit is captioned as Cheri Honeywell, individually and on behalf of all others similarly situated, the Plaintiff, vs. Beautiful Hollywood, LLC, a Florida limited liability company, the Defendant, Case No. 0:18-cv-62958-CMA (S.D. Fla., Dec. 4, 2018). The suit alleges Americans with Disabilities violation. The case is assigned to the Hon. Judge Cecilia M. Altonaga. Beautiful Hollywood LLC (trade name Hollywood Beach Five) is in the hotels and motels business.[BN] Attorneys for Plaintiff: Jessica Lynn Kerr, Esq. JESSICA L. KERR, P.A. DBA THE ADVOCACY GROUP 200 S.E. 6th Street, Suite 504 Fort Lauderdale, FL 33301 Telephone: (954) 282-1858 Facsimile: (844) 786-3694 E-mail: service@advocacypa.com BELLISIMO MASONRY: Ganadara Seeks Overtime Wages for Laborers ------------------------------------------------------------- RAMIRO GANDARA, "JOHN DOE 1," "JOHN DOE 2," in their individual capacities and on behalf of others similarly situated, the Plaintiffs, v. BELLISIMO MASONRY & CONSTRUCTION LLC, and ANTHONY S ANTANGELO , an individual, the Defendants, Case No. 2:18-cv-06962 (E.D.N.Y., Dec. 10, 2018), seeks to recover unpaid or underpaid wages and other damages under the provisions of the Fair Labor Standards Act of 1938, the New York Minimum Wage Act, and New York Labor Law. According to the complaint, the Plaintiffs worked as construction laborers for Defendants' masonry business for several months each. During this time, Plaintiffs, like their similarly situated coworkers, were never properly paid the overtime wages that they rightfully earned. Additionally, Plaintiff Gandara was not paid for his last two weeks of work, nor was he paid a promised and earned bonus. Mr. Ramiro Gandara worked for Bellisimo as a construction laborer from February 23rd, 2018 to October 7th, 2018, or about eight months. Gandara estimates that generally he worked approximately 63 hours per week. While working in this capacity, Mr. Gandara was not expected to record time worked. Mr. Gandara typically started working at 7 AM and stopped working at 6 PM. He usually worked six days per week. We estimate his average workweek to be 63 hours. While in this position, Plaintiff Gandara's pay scheme was hourly, set at $25/hr. For hours over 40 worked in the workweek, Plaintiff Gandara was paid at a "straight time" rate (i.e. same as his regular hourly rate), the lawsuit says.[BN] Attorney for Plaintiffs: Penn A. Dodson, Esq. ANDERSON DODSON, P.C. 11 Broadway, Suite 615 New York, NY 10004 Telephone: (212) 961-7639 Facsimile: (646) 998-8051 E-mail: penn@andersondodson.com BERKS COUNTY, PA: Victory's Bid for Class Certification Denied -------------------------------------------------------------- The Hon. Mark A. Kearney denied without prejudice the Plaintiff's motion for class certification in the lawsuit styled THERESA VICTORY v. BERKS COUNTY, et al., Case No. 5:18-cv-05170-MAK (E.D. Pa.). According to the order, upon filing of the complaint, the Plaintiff also filed an immediate Motion for class certification before the Court can discern the issues involved for discovery or trial under Rule 23 of the Federal Rules of Civil Procedure. Hence, the Plaintiff's Motion for class certification is denied without prejudice to be renewed under a scheduling Order after we define the issues necessary to be resolved for trial on either an individual or class basis, ruled Judge Kearney.[CC] BOJANGLES' INC: Faces Shareholder Suit Over Merger With Durational ------------------------------------------------------------------ Reba Purdessy, individually and on behalf of all others similarly situated, Plaintiff, v. Bojangles', Inc., William A. Kussell James R. Kibler, Steven J. Collins, John E. Currie, Christopher J. Doubrava, Tommy L. Haddock, Robert F. Hull, Jr., Starlette Johnson, Mark A. Rowan, and Steven M. Tadler, Defendants, Case No. 1:18-cv-11649 (S.D. N.Y., December 13, 2018) is a class action brought by Plaintiff on behalf of herself and the other shareholders of Bojangles', Inc. except Defendants and their affiliates, against Bojangles and the members of Bojangles' board of directors for their violations of the Securities Exchange Act of 1934 in connection with the proposed merger between Bojangles, on the one hand, and Durational Capital Management LP, The Jordan Company, L.P., TEI Investment Pte. Ltd., Walker Parent, Inc., and Walker Merger Sub, Inc. On November 5, 2018, the Board caused the Company to enter into an agreement and plan of merger. On December 10, 2018, the Board authorized the filing of a materially incomplete and misleading definitive proxy statement (the "Proxy") with the Securities and Exchange Commission ("SEC"), in violation of the Exchange Act that recommends shareholders vote in favor of the Proposed Merger, asserts the complaint. While the Defendants are touting the fairness of the Merger Consideration to the Company's shareholders in the Proxy, they have failed to disclose material information that is necessary for shareholders to properly assess the fairness of the Proposed Merger, thereby rendering certain statements in the Proxy incomplete and misleading, the complaint adds. Specifically, the Proxy contains materially incomplete and misleading information concerning: (i) the valuation analyses performed by the Company's financial advisors, Merrill Lynch, Pierce, Fenner & Smith Incorporated and Houlihan Lokey Capital, Inc., in support of their fairness opinion; and (ii) the background of the Proposed Merger. Plaintiff seeks to enjoin the Defendants from holding the shareholder vote on the Proposed Merger and taking any steps to consummate the Proposed Merger unless and until the material information discussed and is disclosed to Bojangles shareholders, or, in the event the Proposed Merger is consummated, to recover damages resulting from the Defendants' violations of the Exchange Act, says the complaint. Plaintiff is, and has been at all relevant times, the owner of Bojangles common stock and held such stock since prior to the wrongs complained of herein. Bojangles is a Delaware corporation with its principal offices located at 9600 Southern Pine Boulevard, Suite J, Charlotte, North Carolina 28273. The Company is a restaurant operator and franchisor serving customers southern food, including breakfast all day, biscuits, fried chicken, and sides. Bojangles' common stock trades on the Nasdaq under the symbol "BOJA". Individual Defendant William A. Kussell is director of Bojangles and Chairman of the Board. Individual Defendant James R. Kibler is a director of Bojangles and the Interim President and Chief Executive Officer of the Company. Individual Defendants Steven J. Collins, John E. Currie, Christopher J. Doubrava, Tommy L. Haddock, Robert F. Hull, Jr., Starlette Johnson, Mark A. Rowan and Steven M. Tadler are directors of Bojangles.[BN] The Plaintiff is represented by: Juan E. Monteverde, Esq. MONTEVERDE & ASSOCIATES PC The Empire State Building 350 Fifth Avenue, Suite 4405 New York, NY 10118 Phone: (212) 971-1341 Fax: (212) 202-7880 Email: jmonteverde@monteverdelaw.com BROWARD COLLEGE: Hovenga Seeks Unpaid Wages & Commissions --------------------------------------------------------- Audrey Hovenga, the Plaintiff, vs. Broward College and Alan Applebaum, the Defendants, Case No. CACE-18-028249 (Fla. 17th Cir. Ct., In and For Broward County, Dec. 6, 2018), seeks unpaid wages and commissions. According to the complaint, Mr. Applebaum told Hovenga her pay rate was going to be paid hourly for her work, and Hovenga was made to keep track of her hours, and she did. Hovenga worked for the Defendants in the manner indicated for several weeks for 2-3 days per week, each shift lasting approximately 6-8 hours. Despite working significant hours for the Defendants, neither Defendant paid Hovenga any monies for her work. Broward College, is a state college in Fort Lauderdale, Florida. It is part of the Florida College System. It was established in 1959 as part of a move to broaden Florida's two-year colleges. Attorneys for Plaintiff: Chris Kleppin, Esq. Glasser & Kleppin, P.A. 8751 W. Broward Blvd., Suite 105 Plantation, FL 33324 Telephone: (954) 424 1933 Facsimile: (954) 474 7405 C & A TRANSPORTATION: Ornelas Seeks Minimum Wage for Truck Drivers ------------------------------------------------------------------ CHARLES ORNELAS, an individual, on behalf of herself and on behalf of all persons similarly situated, the Plaintiff, vs. C & A TRANSPORTATION SERVICES, INC., a California Corporation; MIDWEST SERVICES, LLC, a California Limited Liability Company; and DOES 1-50, Inclusive, the Defendants, Case No. 37-2018-D0D61289-CU-OE-CTL (Cal. Super. Ct., Dec. 4, 2018), alleges that the Defendants violated and continue to violate the California Unfair Competition Law and and the California Labor Code in failing to pay minimum wage regardless of whether employees' work is paid by commission, by salary, by piece rate, or by part commission, part piece rate, and/or part salary. According to the complaint, the Plaintiff worked and drove a truck in California for the Defendants from July of 2014 to November of 2016. As a Truck Driver, the Plaintiff's work required the performance of manual labor consisting of driving Defendants' trucks and transporting goods within the State of California. To the contrary, the work of the Plaintiff as a Truck Driver was to provide on a daily basis the transportation of goods in accordance with the management decisions and business policies established by the Defendants. As a result, the Plaintiff was entitled to be paid minimum wages, accurate wage statements, and meal and rest periods as required by California law. The Plaintiff was paid by piece-rate only while he was employed as a Truck Driver for Defendant. Importantly, he was not provided with minimum wages for his non-production work time. The Plaintiff also did not receive paid rest breaks as required by California law and the Defendants failed to provide the Plaintiff with the legally required meal periods, the lawsuit says. C & A Transportation, Inc. was founded in 1989. The company's line of business includes providing trucking transportation services.[BN] Attorneys for the Plaintiff: Shani O. Zakay, Esq. ZAKAY LAW GROUP, APLC Website: www.zakaylaw.com 3990 Old Town Ave. Suite C204 San Diego, CA 92110 Telephone: (619)255-9047 Facsimile: (858) 404-9203 - and - Norman B. Blumenthal, Esq. Kyle R. Nordrehaug, Esq. Aparajit Bhowmik, Esq. BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW LLP Website: www.bamlawca.com 2255 Calle Clara La Jolla, CA 92037 Telephone: (858) 551-1223 Facsimile: (858) 551-1232 CALIBER HOME: Court Dismisses Data Security Breach Class Action --------------------------------------------------------------- Christopher P. Hahn, Esq. -- chahn@mauricewutscher.com -- of Maurice Wutscher LLP, in an article for Lexology, reports that the U.S. District Court for the Southern District of California recently dismissed a consumer's putative class action lawsuit against a mortgage lending and servicing company for purported damages sustained as a result of a security breach wherein his personal information was compromised, and the hackers attempted to open credit cards in his name. Although the Court previously concluded that the consumer had standing to bring his claims under Article III of the Constitution, it held that the consumer failed to state causes of action for negligence and violations of various California laws. A copy of the opinion in Razuki v. Caliber Home Loans, Inc. is available at: Link to Opinion. A consumer on behalf of himself and others similarly situated, sued a mortgage lender and servicer after its customer database was hacked, and confidential customer information, such as social security numbers, was compromised. The consumer claimed that he suffered monetary and emotional distress damages as a result of a cybercriminal's attempts to open credit cards in his name, as a result of the mortgage company's inadequate security and failure to timely notify its customers of the breach. The consumer filed suit against the mortgage company in the Superior Court of California, San Diego County, alleging causes of action for: (i) negligence; (ii) violation(s) of California Constitution (Art. I, § I); (iii) violation(s) of the California Customer Records Act (Civ. Code § 1798.80); (iv) violation(s) of the California Consumers Legal Remedies Act (Cal. Civ. Code § 1750), and; (v) violation(s) of the California Unfair Competition Law (Cal. Bus. & Prof. Code § 17200). The mortgage company removed the action to United States District Court for the Southern District of California under the Class Action Fairness Act, and moved to dismiss the consumer's complaint for lack of standing and failure to state a claim. First, in an earlier decision (available here), the federal trial court rejected the mortgage company's arguments that increased risk of identity theft is not an injury in fact for Article III standing, citing the Ninth Circuit's recent holding that data breach victims sufficiently pleaded "an injury in fact based on a substantial risk that . . . hackers will commit identity fraud" and established a reasonable inference of causation by alleging that their identity was stolen and exploited. In re Zappos.com, Inc.,888 F.3d 1020, 1029 (9th Cir. 2018). In addition, the court held that the mortgage company's argument that the consumer failed to allege it possessed his data at the time of the breach or that it was actually stolen was undermined by its admission that it sent notices to customers who may have been affected by the breach -- which the consumer received -- and in any event, was waived because it was raised for the first time in the mortgage company's reply brief. Thus, the motion to dismiss for lack of standing was denied. But here, the Court found the alleged negligence damages "too conclusory and vague to satisfy the pleading standard," even though the consumer could allege the necessary elements for Article III standing, citing the Ninth Circuit case of Krottner v. Starbucks, where the plaintiff consumer similarly alleged that personal information was misused, but the Court couldn't find "loss related to the attempt to open a bank account in his name." Krottner v. Starbucks Corp., 406 F. App'x 129, 131 (9th Cir. 2010). Although the Starbucks court found the risk of identity theft following a data breach sufficient to supply an injury-in-fact for standing, the Starbucks consumer plaintiff's claims were insufficient to support actual damages for a negligence claim because the injuries "stem from the danger of future harm." Here, the consumer alleged he would suffer a continued risk of harm to his "personal data," but the court concluded the alleged damage was insufficient because it really is a potential "future harm." Second, his claim alleging diminution of value of his personal data fails to allege enough facts to establish how his personal information is less valuable as a result of the breach. Similarly, the Court also found the allegation the consumer "overpaid [mortage company] for financial services during or after the breach" as too vague because the consumer failed to "provide any information to show that he paid a premium for [mortgage company] to provide reasonable and adequate security measures." The consumer also argued that the mortgage company's breach of data violated his right to privacy under Art. I, Section I of the California Constitution. However, the loss of personal data through insufficient security fails to constitute "a serious invasion of privacy" that is "an egregious breach of the social norms underlying the privacy right" necessary to meet the standard of actionable conduct under the California Constitution. Hill v. Nat'l Collegiate Athletic Assn., 7 Cal. 4th 1, 37, 40 (1994); In re iPhone Application Litig.,844 F. Supp. 2d 1040, 1063 (N.D. Cal. 2012) ("Even negligent conduct that leads to theft of highly personal information, including social security numbers, does not approach the standard of actionable conduct under the California Constitution and thus does not constitute a violation of Plaintiffs' right to privacy." ). Accordingly, these claims, too, were dismissed, with leave to amend. Next, the Court considered the consumer's claims that the mortgage company failed to comply with the Customer Records Act (CRA), Civ. Code Sec. 1798.80, which requires businesses to protect customers' personal information by maintaining "reasonable security procedures," and if a data breach occurs, to notify affected customers "without unreasonable delay" Secs. 1798.81.5, 82. The consumer argued that the mortgage company waived its argument by failing to address this claim, but the Court found just the opposite and that the consumer failed to address the mortgage company's arguments that dismissal was warranted for failure to allege injury, and for conclusory allegations about security, data disposal, and notification. Thus, the claim was deemed abandoned and dismissed with leave to amend. See, e.g., Shull v. Ocwen Loan Servicing, LLC, 2014 WL 1404877, at *2 (S.D. Cal. Apr. 10, 2014). Following amendment by the consumer, the Court also dismissed the CRA claim with prejudice and without leave to amend. The Court noted that, although the CRA requires businesses to notify customers of a data breach "in the most expedient time possible and without reasonable delay" (Cal. Civ. Code § 1798.82(a)), courts have required plaintiffs to "show that the delay in notification led to incremental harm." The consumer did not do so here. Moreover, the CRA requires businesses to "implement and maintain reasonable security procedures and practices appropriate to the nature of the information." Cal. Civ. Code Sec. 1798.81.5. The Court held that the consumer "could have identified what made [mortgage company's] security measures unreasonable by comparison to what other companies are doing, but simply knowing of higher-quality security measures is not sufficient to state a claim." The consumer's claims under the Consumers Legal Remedies Act (CLRA) asserted that the mortgage company violated various provisions of Cal. Civ. Code Sec. 1770(a)'s ban on unfair business practices that result "in the sale or lease of goods or services to any consumer." As you may recall, the CLRA defines "services" as "work, labor, and services for other than a commercial or business use, including services furnished in connection with the sale or repair of goods." § 1761. Here, the Court accepted the mortgage company's argument that home loans do not qualify as "the sale of a service" under the CLRA, citing California Supreme Court authority that "ancillary services that insurers provide to actual and prospective purchasers of life insurance" do not count as a "service" under the CLRA because the activity centers on a "contractual obligation to pay money." Fairbanks v. Superior Court, 46 Cal. 4th 56, 61, 65 (2009). Thus, the consumer's CLRA claims were dismissed, but without leave to amend. Lastly, the consumer claimed that the mortgage company violated California's Unfair Competition Law (UCL), Cal. Bus. & Prof. Code Sec. 17200, by supposedly engaging in unfair business practices by failing to provide sufficient security for his data. Here, the Court noted that the consumer's complaint failed to explain which theory he was advancing under the UCL. Although his opposition brief suggested the consumer relied upon his CLRA and CRA claims as predicates for an unlawful theory, because those causes of action failed to state a claim, and because the consumer failed to sufficiently allege "lost money or property," as required, the consumer's Unfair Competition Law claim also failed to state a cause of action and was dismissed with leave to amend. The consumer amended his UCL claim, but the Court held the amendments were insufficient, and this time dismissed the UCL claim with prejudice. The Court noted that a UCL plaintiff must "have suffered an 'injury in fact' and 'lost money or property as a result of such unfair competition.'" The consumer argued that he met this element because funds were withdrawn without his consent from his bank account. However, the Court noted, the consumer's bank quickly reversed the transaction, and therefore the consumer suffered no "injury in fact," as required. Accordingly, the motion to dismiss the consumer's putative class action lawsuit was granted with prejudice and without leave to amend. [GN] CALIFORNIA FINE: Faces Blackshear Labor Suit in Calif. State Court ------------------------------------------------------------------ A class action lawsuit has been filed against California Fine Wine. The lawsuit is captioned as Carla Blackshear and on behalf of all persons similarly situated, the Plaintiff, vs. California Fine Wine and Spirits LLC and Does 1-50, the Defendants, Case No. 34-2018-00245842-CU-OE-GDS (Cal. Super. Ct., Dec. 5, 2018). The suit alleges employment-related violation. California Fine Wine & Spirits is in the Liquor Stores business.[BN] Attorneys for Plaintiff: Norman B Blumenthal, Esq. Blumenthal, Nordrehaug & Bhowmik 2255 Calle Clara La Jolla, CA 92037-3107 Telephone: (858) 551-1223 Facsimile: (858) 551-1232 E-mail: norm@bamlawca.com CALIFORNIA: Court Dismisses State Prisoner's Suit ------------------------------------------------- The United States District Court for the Eastern District of California issued a Finding and Recommendation dismissing Plaintiff's Pro Se Complaint in the case captioned CARL CHRISTIAN, Plaintiff, v. CLARK, et al., Defendants. Case No. 1:18-cv-01173-DAD-BAM (PC). (E.D. Cal.). Plaintiff Carl Christian (Plaintiff) is a state prisoner proceeding pro se and in forma pauperis in this civil rights action under 42 U.S.C. Section 1983. The Plaintiff purports to bring this case as a class action lawsuit on behalf of himself and other similarly situated individuals. However, he may not do so. A non-attorney proceeding pro se may bring his own claims to court, but he may not represent others. A full-text copy of the District Court's November 26, 2018 Findings and Recommendation is available at https://tinyurl.com/y9kdon5t from Leagle.com. Carl Christian, Plaintiff, pro se. CANADA: Class Action Over Ontario's Training Schools Certified -------------------------------------------------------------- Kenyon Wallace, writing for Toronto Star, reports that an Ontario Superior Court judge has certified a class-action lawsuit seeking $600 million in damages against the Ontario government on behalf of former residents of the province's training schools. The certification order, signed by Justice Danial Newton in Thunder Bay and released on Dec. 4, defines the class as all individuals who resided at 13 of the province's training school facilities between Jan. 1, 1953, and April 2, 1984. "This is an important milestone for the boys and girls from the training schools," said lead plaintiff Kirk Keeping in a statement issued by Koskie Minsky, the law firm representing him and other class members. Keeping alleges he was sexually, physically and psychologically abused while attending Pine Ridge Training School in Bowmanville in 1968 when he was 15. "We have all lived with this for years and we are glad this case is moving forward," he said. Training schools were institutions set up and operated by the provincial government to house and educate thousands of children between the ages of 8 and 16 who were deemed by the courts to be "incorrible" or "unmanageable." Children sent to training school need not have committed any crimes; transgressions such as petty theft, truancy, or running away from home could land a child in training school. Many children sent to the institutions came from abusive or poverty-stricken homes. A Star investigation published last year revealed that the provincial government has secretly settled more than 200 individual lawsuits launched by former training school residents who alleged horrifying treatment at the hands of school employees. Former students interviewed by the Star alleged they were raped, beaten and put in solitary confinement by staff members, among other abuses they say they suffered. The Star's investigation also revealed that provincial officials warned the government -- in one case as early as the late 1960s — that students were being mistreated at the institutions, but that these warnings appeared to have been ignored. The last training school closed in 1984. "The allegations of abuse by the province are quite frankly shocking," Jonathan Ptak -- jptak@kmlaw.ca -- a partner at Koskie Minsky and the lead lawyer for the class, said in a statement on Dec. 4. "We are pleased that the case now has been certified as a class proceeding, so that we can now litigate this case on the merits. We will continue to push forward as quickly as possible and to seek access to justice for the thousands of survivors of the Ontario training schools." The next step in the case, he said, will be to return to court to determine how to provide notice to class members that the action is proceeding. Class members will then have the opportunity to opt out if they wish. Mr. Ptak said records filed by the province in the case show there were about 21,000 former residents of training schools. The lawsuit, which seeks $500 million in damages for negligence, breach of fiduciary duty and vicarious liability, as well as $100 million in punitive damages, was certified in Thunder Bay, where lead plaintiff Keeping lives. Among Keeping's allegations in the statement of claim, which was filed in Dec. 2017, were that he was sexually abused by two Pine Ridge training school employees: a female kitchen worker who allegedly took Keeping, who was a virgin, into a large cooler and had sex with him; and a male employee working at the school's dairy farm who allegedly performed oral sex and "simulated sex" on Keeping. It also alleges he was put in a locker by staff members and hit with running shoes when he misbehaved. "The children who resided (in training schools) were vulnerable and powerless and due to the Crown's systemic failure, were subjected to a toxic environment in which physical, sexual and psychological abuse was widespread," reads the statement of claim. As of publication time, the Ministry of the Attorney General had not responded to a request for comment. [GN] CANADA: Indigenous Women Sue Over Foreced Sterilization ------------------------------------------------------- Anna Kusmer, writing for Rewire.News, reports that in 2001, a 29-year-old Cree woman, nicknamed S.A.T. in legal documents, went to the Royal University Hospital in Saskatchewan, Canada, to give birth to her sixth child. After she gave birth, she says, she was wheeled into an operating room to be sterilized. She says she desperately protested, but no one listened. To this day, she remembers "the smell of burning flesh" as her fallopian tubes were cauterized against her will in an irreversible birth control procedure. This claim is laid out in a new class action lawsuit alleging widespread abuse of power by Saskatchewan health professionals and the violation of many indigenous women when they were at their most vulnerable. If successful, the women in the lawsuit will each be entitled to millions of dollars of reparations from the Saskatchewan and Canadian governments and their health systems. While these women may only represent a fraction of the people negatively affected by forced sterilization in Canada, their lawsuit is recognition of the ubiquity of the practice -- and its consequences. Attorney Alisa Lombard is directing the lawsuit. She's an associate at Maurice Law, Canada's only indigenous-owned national law firm. Since news broke of the legal action last month, over 60 more women have contacted Ms. Lombard's office, saying they were sterilized without their consent. In the seven days after CBC's November 13 article about the lawsuit, 29 women called or emailed her. The women were mostly from Saskatchewan, but also from Ontario and Manitoba. They reported similar experiences of being coerced into signing consent forms and being misled about the irreversible nature of the procedure. The stories go back decades; one is as recent as 2017. Most of the sterilizations happened in the hectic time directly after the women gave birth. In some cases, women were denied access to their newborn babies unless they agreed to the procedure. The class action currently has two representative plaintiffs, and when certified, dozens more may be added. "My clients' lives were upended," Ms. Lombard told Rewire.News. "They've lost relationships, and they've come down quite hard on themselves. I really don't think you can overstate the trauma." The lawsuit is aimed at three specific doctors, the Saskatchewan and Athabasca Health Authorities and their health professionals, the province of Saskatchewan, and the Canadian federal government. The charges include battery of a sexual nature, negligence, breach of contract and fiduciary obligations, violation of the right to life, cruel and unusual treatment, and the violation of the right to freedom of conscience, belief, and religion. The lawsuit was launched about six months after a 2017 report exposed the pervasive forced sterilization of indigenous women in Saskatchewan hospitals. The report, an independent review commissioned by the Saskatoon Health Region, shares stories of seven indigenous women who were pressured into a tubal ligation, a permanent form of birth control in which the fallopian tubes are cut, burned, or tied in an irreversible procedure. The women say they were sterilized against their will, usually in the hectic and fraught period directly after giving birth. The women in the report, anonymous to the public, shared similar stories to those of the lawsuit's plaintiffs -- full of feelings of confusion, distress, and shame. They said they felt harassed by health-care workers to agree to the procedure, which they didn't know much about, and they were told it was for their health. "When [I was] in for C-section, the nurse came to [get] me to sign the paper for tubal ligation . . . Even though I didn't want to, I signed it," said one women in the report. "I just said, 'I don't want to do this.' and he [the doctor] just didn't hear me. I was being ignored," said another. One women recounted that a social worker told her the doctors didn't want her to leave the hospital until the procedure was done, and she felt she didn't have a choice. "They were all severely traumatized," said Yvonne Boyer, a Canadian senator, a legal scholar, and a co-author of the 2017 report. "They had either revoked their consent, not realizing that a tubal ligation was a permanent procedure, or they had not consented at all to the procedure that they were having done," she told Rewire.News. The 2017 report sparked a growing recognition that the practice of forced and coerced sterilization of indigenous women in Saskatchewan hospitals was rampant. According to Ms. Boyer, the precedent for indigenous women being mistreated in Canadian public systems is rooted in a deep history of colonialism, sexism, and racism. "Unfortunately, far too many institutions today claim to be value free but continue to reflect a colonial male dominated comprehension of reality," she and physician Judith Bartlett wrote in the 2017 report. Ms. Boyer said medical practices that assume non-indigenous doctors know what's best for indigenous women, despite their express wishes to the contrary, mirror a historical legal system that seeks to undermine the autonomy and independence of indigenous people of Canada. She refers to this as the "guardian and ward model" of law, which assumes that indigenous people do not have the capabilities to make decisions about their own health and well-being. In Canada, it is mostly famously exemplified by residential schools, a widespread practice that removed an estimated 150,000 First Nation, Metis, and Inuit children from their communities before ending in 1996. According to Ms. Boyer, the "guardian and ward model" of law contributes to a mainstream culture that does not respect the autonomy of indigenous women, and the forced sterilization cases currently coming forward show that this patronizing and racist mentality is present in Canadian health systems. "The health-care professionals are saying, 'we know what's best for you. You've got three kids at home, you don't need anymore, so I'm just going to sterilize you, because that's what I think,'" said Boyer. "That's what happens. There's a power imbalance." Ms. Boyer and Ms. Bartlett's 2017 report highlights the "degradation" experienced by the women interviewed about forced sterilization. Most of the women were never again able to trust doctors, and they consequently don't seek health care or address chronic pain or illness. "We found with the women we interviewed that there was a terror, an absolute terror of these women [with regard to] seeking health care," said Boyer. "They're not going [to the doctor], and they're not allowing their families to go." Canada has a long history of eugenics and forced sterilization. The provinces of Alberta and British Columbia both had legislation condoning sterilizing people without consent, and records suggest the practice was widespread across other provinces as well. The practice of forced sterilization in Canada started with people with mental illness or disabilities but it soon became pretense for the sterilization of indigenous people, mostly women, based on racist ideas of culture and behavior. Forced sterilization of Native women based on racist policies was also rampant in the United States, persisting into the 1970s and 1980s. Some estimate that as many as 25 to 50 percent of Native American women in the United States were sterilized between 1970 and 1976. In Puerto Rico, an estimated one-third of women were sterilized between 1936 and 1968 by the U.S. government, which spread misinformation about the sterilization procedure. The impact of forced sterilization can be severe. The plaintiffs in Ms. Lombard's lawsuit say they have experienced debilitating physical and mental repercussions, including hormonal disorders, migraines, depression, anxiety, and social isolation. One of the women said her marriage ended as the result of her sterility. Ms. Lombard told CBC News that one woman in Manitoba took her own life 10 months after the procedure. "It's hard to sum it up in a sentence and say, 'these are the damages,'" said Lombard. "The greater trauma here … it can't be overstated. I think that any well-thinking, well-meaning human being looking at the scenario will inherently understand that." She says health professionals and the Canadian public have known about forced sterilization in Canadian hospitals for decades. "What this teaches us . . . is that this continues to happen," she said. She poses the rhetorical question: "At what time does inaction in the face of knowledge become intent?" Once the lawsuit is certified by the Saskatchewan courts, Lombard can add more women to the class action. She says no matter how many women are included, there are countless cases of women who will never see a shred of justice. "Certainly there are many women that these things have happened to who are no longer with us, who are not here to speak on their own behalf," she said. Lombard added that the bulk of the women who have approached her have experienced forced sterilization in the last three decades. "It's not a very long time ago," she said, "This basically happened yesterday." Ms. Lombard told Rewire.News she will be pleased if they win the lawsuit, as it would mean recognition for a problem that is too often swept under the rug. "[Winning the lawsuit] would be a reinforcement and a confirmation that indigenous women have bodily autonomy," she said, "It's about saying these women have a right to have families on their own terms. It's about saying these women have the right, first and foremost, to make decisions about their own bodies." But real justice will only come with a systemic overhaul of Canadian health care to address the pernicious underpinnings of racism and unequal access to care that are deeply rooted in the system. In their 2017 report, Boyer and Bartlett outlined "Calls to Action" based on what they heard from the affected women, which include legal, procedural, educational, and structural changes to the health system. They include enacting a constitutionally protected right to traditional indigenous medicine and reproductive health care, mandatory cultural training for health-care workers, greater representation of indigenous advocates in the shaping of health-care policy, and the creation of a reproductive center for vulnerable indigenous women who need particularly sensitive care. "We know that indigenous patients can face systemic barriers in accessing medical services, including discrimination and racism," said Jane Philpott, Canadian minister of indigenous services, in a statement. "We all have a role to play to ensure that Indigenous patients receive quality health care free of prejudice, including ensuring medical professionals receive cultural safety training." After the 2017 report came out, the Saskatchewan Health Authority did change its policy around tubal ligation and now requires women to have a documented discussion with their doctor about the procedure before coming in for birth. They also shared the report with their staff and implemented cultural competency training. "We are working closely with our First Nations and Métis community partners (Federation of Sovereign Indigenous Nations, Métis Nation-Saskatchewan), as well as Elders and Grandmothers, through the establishment of an advisory council to guide the SHA on the future of health care in Saskatchewan," the Saskatchewan Health Authority said in a statement. "The council continues to meet regularly to create detailed plans specific to the 10 calls to action outlined in the review, with SHA leadership teams working to put these plans into action." Ms. Boyer is currently working on getting support from her senate colleagues for more action and investigation into the practice. "The more people we can have talking about this, the more solutions we are going to be able to come up with," she said. Ms. Boyer said that only the women can determine what justice means for them personally. Moving forward, the goal is to never let this happen again. "Quite frankly, I don't think there is any justice, I think the only thing we can do is stop things like this from happening to their children," said Boyer. "We don't want their daughters to go through the same things that they've been through. That's what we're working at." [GN] CELTIC SERVICES: Parada Sues Over Unpaid Overtime Compensation -------------------------------------------------------------- Lorenzo M. Parada, individually and on behalf of all employees similarly situated, Plaintiff, v. Celtic Services NYC Inc., John Doe a/k/a Camaron, and Carlos Mendoza, Defendants, Case No. 7:18-cv-11677 (S.D.N.Y., December 13, 2018) alleges violations of the Fair Labor Standards Act, and the New York Labor Law, arising from Defendants' various willful and unlawful employment policies, patterns and/or practices. The complaint asserts that Defendants have willfully and intentionally committed widespread violations of the FLSA and NYLL by engaging in a pattern and practice of failing to pay their employees, including Plaintiff, overtime compensation for all hours worked over 40 each workweek. Plaintiff alleges pursuant to the FLSA and the NYLL that he is entitled to recover from the Defendants unpaid overtime wages, compensation for failure to provide wage notice at the time of hiring and failure to provide paystubs in violation of the NYLL, liquidated damages equal to the sum of unpaid "spread of hours" premium, unpaid overtime Pursuant to the NY Wage Theft Prevention Act, liquidated damages, prejudgment and post-judgment interest, and attorneys' fees and costs, says the complaint. Plaintiff Lorenzo M. Parada is a resident of Bronx County and was employed as a demolition worker by Celtic Services NYC Inc. Celtic Services NYC Inc. owns and operates a demolition company in Westchester County located at 156 Mt. Vernon Avenue, Ste. 210, Mt. Vernon, NY 10550. Defendant John Doe a/k/a Camaron is the owner, officer, director and/or managing agent of Celtic Services NYC Inc. and participated in the day-to-day operations of Celtic Services NYC Inc.[BN] The Plaintiff is represented by: Lorena P. Duarte, Esq. 136-20 38th Avenue, Suite 10G Flushing, NY, 11354 Phone: (718)353-8588 Email: lduarte@hanglaw.com CHARTER COMMS: Plaintiff Ordered to Show Cause in TCPA Case ----------------------------------------------------------- Nadia Adams, Esq. -- nadia.adams@wbd-us.com -- of Womble Bond Dickinson (US) LLP, in an article for The National Law Review, reports that on Dec. 4, Judge Otis Wright of the Central District of California ordered the Plaintiff in a TCPA class action to show cause why the case shouldn't be stayed pending the outcome the First Amendment issues before the Ninth Circuit in the Gallion v. Charter Commc'ns, Inc., 287 F. Supp. 3d 920 (C.D. Cal. 2018) appeal. Elliot Pershes v. USA Fitness Center et al., 18-cv-7258-ODW-RAO ("Pershes"). Remember when we said, "the Telephone Consumer Protection Act ("TCPA") is the broadest restriction on constitutionally protected speech in our nation's history?" Of course you do. Also, remember when we reported about a first-in-the-nation ruling out of the U.S. Central District Court of California staying the Meza v. Sirius Xm Radio, Case No.: 17-cv-2252-AJB-JMA, 2018 U.S. Dist. LEXIS 164601 (S.D. Cal. Sept. 25, 2018) TCPA case pending the outcome Gallion? Yep! A few weeks after the Meza decision, the defense in the Pershes case moved to dismiss the case on the basis that the TCPA is an unconstitutional restriction on free speech in violation of the First Amendment, and alternatively asked the Court to stay the action pending the outcome of the Gallion appeal. Smart move. Per Federal Rule of Civil Procedure 5.1(a), the Defendant also notified the United States Attorney General of its constitutional challenge to a federal statute. Just a few weeks ago, the US AG's office chimed in stating that it didn't appear that briefing on the constitutional issue was warranted in light of the pending Gallion appeal and -- under those circumstances -- agreed that a stay of the case pending the outcome of the appeal was appropriate. And it looks like the Court is also in agreement. In a short and sweet minute order issued on Dec. 4, the court stated it was "inclined to stay this action pending the Ninth Circuit's decision in Gallion," and ordered the Plaintiff to show cause why the case shouldn't be stayed pending that decision. With the defense, the US AG, and the Court seemingly aligned on the appropriateness of a stay here, it will be interesting to see how this all plays out. We have our money on a stay being granted. And the momentum is definitely building here. If the stay is ultimately granted, this will be the second court in the Ninth Circuit to order a case stayed pending the outcome of Gallion. But what's even more interesting is that we now have the US AG's office going on the record and agreeing that a stay is appropriate pending the Ninth Circuit's determination of the constitutional issues in Gallion. Plaintiff has until December 28, 2018 to respond to the OSC. [GN] CHEMOURS: Class Action Attorney Provides Update on GenX Case ------------------------------------------------------------ Alex Guarino, writing for WECT, reports that dozens of concerned community members gathered at Cape Fear Community College on Dec. 4 to hear the latest on the state of their drinking water, and the GenX investigation. Dr. Larry Cahoon, a UNCW professor, started the meeting with an update on research pertaining to GenX and other chemical compounds found in the water, air, and soil across the region. Dr. Cahoon told the crowd, "There is a lot left to learn" about GenX and other compounds discharged into the Cape Fear River at the Chemours Company's Fayetteville Works plant. Ted Leopold, an attorney working on a federal class action lawsuit against Chemours and Dupont, updated the audience about the status of the lawsuit. Mr. Leopold brought up the consent order filed before Thanksgiving, which would require Chemours to pay a $12 million fine and provide safe drinking water to those living around the Fayetteville Works plant. He said the order was a step in the right direction, but that few people will be helped by the consent order and the goal is to ensure the hundreds of thousands affected have fair compensation. "I think it's the beginning and it's a good step by the DEQ, and Chemours and DuPont should be commended for starting the process but the example I gave tonight is this is a marathon," Mr. Leopold said. "This is the first few steps of a very long race and very few people are going to be helped in any way by this. Our goal and our responsibility is to make sure everyone, the hundreds of thousands who have been affected, and over 200,000 homes and the filtration systems that are effected, are provided a full measure of justice and provided clean water in their homes and for the health and safety of them as individuals." Many who attended the meeting were curious about the health impacts of GenX and other chemical compounds. Dr. Cahoon and Mr. Leopold said it is too early to know effects the compounds cause on humans, but there are things concerned community members can do now. "A lot of people come to these events who have health related issues and they're not sure if the contamination of the water has caused their problems," Mr. Leopold said. "We don't have a crystal ball but we do know that certain pieces of education such as their medical records, their history, how long they've lived here, how long they've drank the water, how long the toxins have been in the water, how long Chemours and DuPont have contaminated the water, the number of years of dumping this stuff into the Cape Fear River. If you put all those things together, sometimes it leads to the right answers that a lot of these physical problems and health related issues are a result of the conduct of DuPont and Chemours." He compared the process to a marathon, but is urging everyone in the area to save receipts pertaining to safe drinking water or health expenses. "Everybody who has to pay out of pocket for their bottled water or their health issues, potentially, depending on how the litigation goes, can be reimbursed appropriately for those out of pocket expenses," Mr. Leopold said. [GN] CHG EMPLOYEE: Hale Seeks Overtime Pay for Patient Care Nurses ------------------------------------------------------------- CAROL HALE, on behalf of herself and all others similarly situated, the Plaintiff, vs. CHG EMPLOYEE HOLDING LLC; and CORNERSTONE HEALTHCARE GROUP HOLDING, INC., the Defendants, Case No. 4:18-cv-00580-JAS (D. Ariz., Dec. 4, 2018), seeks to recover unpaid minimum wages and overtime pay under the Fair Labor Standards Act. Plaintiff and class members worked as hourly paid direct patient care nurses at Defendants' medical facilities located in Arizona. The Plaintiff and class members did not receive bona fide meal break periods. Instead, they were required and permitted to work off-the-clock for Defendants during their meal break periods and were not paid for such time. However, Defendants required nurses at Cornerstone to remain responsible for patient care throughout their shifts, including during meal periods. Nurses frequently went without meals, and even when they did attempt to eat, their meal periods were regularly interrupted by work demands. In short, Defendants used the nurses' meal periods for the predominant benefit of Cornerstone. Notwithstanding Defendants' practice of requiring nurses to be available for work and to in fact work throughout their meal periods, the Defendants employed timekeeping software which automatically deducted 30 minutes from the total time worked by nurses each shift so as to account for these hypothetical meal periods, thereby enabling Defendants to receive the benefit of an additional 30 minutes of unpaid work for each shift worked by class members. The Defendants' practice of failing to relieve nurses of their duties during meal periods, while simultaneously using timekeeping software to automatically deduct 30 minutes from the total time paid per shift (on the pretext of accounting for meal periods which nurses were not in fact free to take without constant interruption), had the effect of depriving nurses of overtime compensation due to them under the FLSA in the weeks in which they worked more than 40 hours in a week, and of depriving them of straight-time compensation at their hourly rate in weeks in which they worked fewer than 40 hours in a week, the lawsuit says. Cornerstone Healthcare owns and operates long term acute care hospitals. The company offers a pulmonary/ventilator program that includes individualized treatment for patients beset with various cardiopulmonary/medical needs ranging from supplemental oxygen therapies to complex ventilator management and weaning protocols; a wound management program utilizing technology and techniques; a medically complex program designed to treat patients with multiple medical diagnoses requiring intensive care nursing and therapies, such as PT, OT, SL, nutrition, medication management, wound care, dialysis, and special procedures; and a medical rehabilitation program.[BN] Counsel for Carol Hale, and Proposed Class and Collective Action Members: Todd Slobin, Esq. Ricardo J. Prieto, Esq. SHELLIST | LAZARZ | SLOBIN LLP 11 Greenway Plaza, Suite 1515 Houston, TX 77046 Telephone: (713) 621-2277 Facsimile: (713) 621-0993 E-mail: tslobin@eeoc.net rprieto@eeoc.net - and - Melinda Arbuckle, Esq. BARON & BUDD, P.C. 3102 Oak Lawn Avenue, Suite 1100 Dallas, Texas 75219 Telephone: (214) 521-3605 Facsimile: (214) 520-1181 E-mail: marbuckl@baronbudd.com CITIZENS FOR RAUNER: Stratics Group Removes Suit to N.D. Ill. ------------------------------------------------------------- Pursuant to 28 U.S.C. Sections 1331, 1441(a) and 1446, The Stratics Group Inc. removed the cases docketed as (1) Peter Garvey, individually and on behalf of a class of similarly situated individuals, Plaintiff, v. Citizens for Rauner, Inc., Defendant, Case No. 2018CH3859 (Circuit Court of Cook County, March 23, 2018) and (2) Citizens for Rauner, Inc., Third-Party Plaintiff, v. Victory Phones LLC and The Stratics Group, Inc., Third-Party Defendants filed October 22, 2018, from the Circuit Court of Cook County, Illinois, to the United States District Court for the Northern District of Illinois on November 30, 2018, under Case No. 18-cv-07919. Garvey's complaint against Citizens for Rauner alleges violations of the federal Telephone Consumer Protection Act and seeks monetary and injunctive relief. Citizens for Rauner filed a Third-Party Complaint against Stratics and Victory Phones LLC on October 22, 2018, asserting Illinois state-law claims for indemnification and contribution, as well as a negligent misrepresentation claim only against Victory Phones, all of which are entirely contingent on Rauner's liability under the Telephone Consumer Protection Act. Grounds for removal includes the fact that the original complaint presents a federal question under the Telephone Consumer Protection Act, and the Third-Party Complaint necessarily raises substantial issues of federal law which the original court lacks original jurisdiction. The Stratics Group is represented by: Simon Fleischmann, Esq. W. Patrick Conlon, Esq. LOCKE LORD LLP 111 South Wacker Drive Chicago, IL 60606 Phone: (312) 443-0462 Email: sfleischmann@lockelord.com wpatrick.conlon@lockelord.com - and - Garvey is represented by: John Sawin, Esq. SAWIN LAW FIRM, LTD. 55 West Wacker Drive, Suite 900 Chicago, Illinois 60601 Tel: (312) 853-2490 Email: jsawin@sawinlawyers.com Citizens for Rauner is represented by: Kevin M. O'Hagan, Esq. Shane M. Bradwell, Esq. O'Hagan Meyer, LLC 1 E. Wacker Drive, Suite 3400 Chicago, Illinois 60601 Tel: (312) 422-6100 Email: kohagan@ohaganmeyer.com sbradwell@ohaganmeyer.com Victory Phones is represented by: Hal Ostrow, Esq. Rhoades McKee, Esq. 55 Campau Ave NW, Suite 300 Grand Rapids, MI 49503 Tel: (616) 233-5120 Email:hostrow@rhoadesmckee.com COLLECTION ANALYST: Ct. Awards $28.5K Attorney's Fees in Powers --------------------------------------------------------------- The United States District Court for the District of Nebraska issued a Memorandum and Order granting Plaintiff's Unopposed Motion for Approval of Plaintiff's Incentive Award & Damages and Plaintiff's Attorneys' Fees and Costs in the case captioned LAURA POWERS, on behalf of herself and all others similarly situated; Plaintiff, v. THE COLLECTION ANALYST, INC., and JUDITH D. RETELSDORF, Defendants. No. 8:17CV229. (D. Nev.). This is a class action for violations of the Fair Debt Practices and Collection Act (FDCPA) and the Nebraska Consumer Protection Act (NCPA). The Court finds that the plaintiff, as the prevailing party, is entitled to attorney fees. The Court has considered the Johnson factors and finds that an award of $28,500.00, as agreed by the parties, is fair and reasonable. The plaintiff has achieved a significant degree of success in that she, on behalf of the class, has recovered the maximum amount of statutory damages under the FDCPA and NCPA. Significantly, on behalf of the class, the plaintiff has also achieved prospective relief in that the defendants have agreed to change collection practices. Also, the amount of plaintiff's attorney fees and costs is separate from, and in addition to, the class recovery. The plaintiff has demonstrated that counsels' services have benefitted the class. The Court has reviewed the declarations of counsel and time records submitted in connection with the motion. The plaintiff has shown that the negotiated amount represents a substantial reduction in the time actually spent on the case by plaintiff's counsel. The Court finds counsel expended a modest amount of time on the litigation, presumably due to counsels' combined experience in consumer protection litigation. The plaintiff seeks fees in an amount that is below the lodestar, which would be $33,749.37. The Court finds the time and labor expended by plaintiff's counsel in this case is reasonable and necessary to prosecute a case of this nature. The plaintiff's motion for attorney fees and approval of incentive award is granted. The plaintiff is awarded attorney fees in the amount of $28,500.00. The plaintiff class may recover costs amount of $440.62. Statutory damages in the amount of $2000.00 and an incentive award of $2000.00 to the plaintiff are approved. A full-text copy of the District Court's November 26, 2018 Memorandum and Order is available at https://tinyurl.com/y7qgkx2k from Leagle.com. Laura Powers, on behalf of herself and all others similarly situated, Plaintiff, represented by O. Randolph Bragg -- rand@horwitzlaw.com -- HORWITZ, HORWITZ LAW FIRM, Pamela A. Car, CAR, REINBRECHT LAW FIRM & William L. Reinbrecht, CAR, REINBRECHT LAW FIRM. The Collection Analyst, Inc., Defendant, represented by John C. Ochoa -- johoa!salawus.com -- SMITH, AMUNDSEN LAW FIRM, pro hac vice, Michael T. Gibbons, WOODKE, GIBBONS LAW FIRM & Patrick M. Heng, JEFFREY WELCH LAW FIRM. COLLECTION ASSOCIATES: Kanehl Moves for Certification of Class -------------------------------------------------------------- Marlene Kanehl moves the Court to certify the class described in the complaint of the lawsuit titled MARLENE KANEHL, Individually and on Behalf of All Others Similarly Situated v. COLLECTION ASSOCIATES, LTD., Case No. 2:18-cv-01919 (E.D. Wisc.), and further asks that the Court both stay the motion for class certification and to grant the Plaintiff (and the Defendant) relief from the Local Rules setting automatic briefing schedules and requiring briefs and supporting material to be filed with the Motion. Dicta in the Supreme Court's decision in Campbell-Ewald Co. v. Gomez, left open the possibility that a defendant facing a class action complaint could moot a class representative's case by depositing funds equal to or in excess of the maximum value of the plaintiff's individual claim with the court and having the court enter judgment in the plaintiff's favor prior to the filing of a class certification motion, the Plaintiff asserts, citing Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016). To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion. Damasco v. Clearwire Corp., 662 F.3d 891, 896 (7th Cir. 2011), overruled on other grounds, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015) ("The pendency of that motion [for class certification] protects a putative class from attempts to buy off the named plaintiffs."). While the Seventh Circuit has held that the specific procedure described in Campbell-Ewald cannot force the individual settlement of a class representative's claims, the same decision cautions that other methods may prevent a plaintiff from representing a class, the Plaintiff tells the Court, citing Fulton Dental, LLC v. Bisco, Inc., No. 16-3574, 2017 U.S. App. LEXIS 10839 *9-10 (7th Cir. June 20, 2017). The Plaintiff asserts that one defendant has attempted a similar tactic by sending a certified check to the proposed class representative. Bonin v. CBS Radio, Inc., No. 16-cv-674-CNC (E.D. Wis.); see also Severns v. Eastern Account Systems of Connecticut, Inc., Case No. 15-cv-1168, 2016 U.S. Dist. LEXIS 23164 (E.D. Wis. Feb. 24, 2016). The Plaintiff is obligated to move for class certification to protect the interests of the putative class, the Plaintiff asserts. As the Motion to certify a class is a placeholder motion as described in Damasco, the parties and the Court should not be burdened with unnecessary paperwork and the resulting expense when short motion to certify and stay should suffice until an amended motion is filed, the Plaintiff contends. The Plaintiff also asks to be appointed as class representative, and for the appointment of Ademi & O'Reilly, LLP, as class counsel.[CC] The Plaintiff is represented by: John D. Blythin, Esq. Mark A. Eldridge, Esq. Jesse Fruchter, Esq. Ben J. Slatky, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482-8000 Facsimile: (414) 482-8001 E-mail: jblythin@ademilaw.com meldridge@ademilaw.com jfruchter@ademilaw.com bslatky@ademilaw.com CONNOLLY MASONRY: Ex-worker Seeks Unpaid Wages, Damages -------------------------------------------------------- Carlos Lugo, on behalf of himself and others similarly situated v. Connolly Masonry, Inc., Case No. 2:18-cv-13622 (E.D. Mich., November 20, 2018), is brought against the Defendant for violation of the Fair Labor Standards Act. The Plaintiff brings this lawsuit to recover unpaid wages and overtime compensation, liquidated damages, attorneys' fees, and costs owed to him individually and on behalf of other similarly situated individuals. The Plaintiff, a resident of Pontiac, Michigan, worked as a mason, operator, and laborer for Connolly for approximately ten years until November 2017. The Defendant Connolly Masonry, Inc. is a commercial and industrial masonry company located in Clarkston, Michigan and doing business in Michigan. The Defendant engages in the commercial construction business and offers services including commercial and industrial brick installation, block and stone work repair, and value engineering. The company has been in business since 1996. [BN] The Plaintiff is represented by: Philip J. Goodman, Esq. PHILIP J. GOODMAN, P.C. 280 N. Old Woodward Ave., Suite 407 Birmingham, MI 48009 Tel: (248) 647-9300 E-mail: pjgoodman1@aol.com - and - Robert W. Cowan, Esq. BAILEY PEAVEY BAILEY COWAN HECKAMAN PLLC 5555 San Felipe St., Suite 900 Houston, TX 77056 Tel: (713) 425-7100 E-mail: rcowan@bpblaw.com COSMETIC INSTITUTE: Breast Augmentation Class Action Can Proceed ---------------------------------------------------------------- Chris Smith, writing for 2GB, repots that the Supreme Court has given a class action against the country's largest cosmetic surgery provider the green light. The Cosmetic Institute had tried to halt the legal action, sparked after a woman went into cardiac arrest during a breast augmentation procedure. Turner Freeman lawyer Sally Gleeson tells Chris Smith hundreds of women have contacted them, and they expect the numbers will grow. She says it's the first action of its kind in the country. "This is a class action about a system of breast augmentation surgery. "It's about a system and a model that we say was created and designed and implemented by the Cosmetic Institute, which at the forefront of its objectives, we say, was profit rather than the welfare of its patients." [GN] COSMETIC INSTITUTE: Breast Surgery Class Action Set for Trial ------------------------------------------------------------- Charlie Coe, writing for Daily Mail Australia, reports that the Supreme Court has given up to 1000 women the green light to take class action against a cosmetic surgery which they allege operated like a 'fast food franchise'. Justice Peter Garling ruled five women who received treatment at The Cosmetic Institute facilities in Queensland and NSW, could now continue the suit against the company and their ex-surgical director Dr Eddy Dona. The ruling will also open the door to potentially hundreds of other claims. The ruling at NSW Supreme Court on Dec. 4 means up to 1000 women could take part in a class action, according to The Daily Telegraph. All of the women had surgeries at places where TCI facilities were offered, including two Sydney clinics, two Sydney hospitals and one clinic in Queensland. The case began after two women, including Amy Rickhuss, 24, had to be resuscitated on the operating table at the cosmetic company's Parramatta and Bondi Junction clinics. Jessica Bruen, Kirsty-Anne Rowlands and Lily Knowland were the three other women so far involved in the case. According to court documents, the five plaintiffs claimed their surgeries involved inadequate infection control procedures. The claim added the two Sydney clinics were incapable of accessing sufficient medical assistance in the case of an emergency. The 'one size fits all approach' was also alleged to have increased the risk of 11 complications including haemorrhage, scarring, local anaesthetic toxicity, leading to cardiac arrest, pneumothorax and death. Dr Dona allegedly created the procedure and trained doctors to administer the same implants even if customers had different breast shapes. The quality of training for the clinic's anaesthetists was also put under the spotlight, including whether they knew to only use local anaesthetic in all cases. Summing up, Justice Girling said: 'I do not consider it is 'otherwise inappropriate' for the matter to continue as representative proceedings. The case is now due to go to trial, while TCI and Dr Dona will have to pay the women's costs so far. It had been adjourned until December 14. [GN] COVENANT TRANSPORT: Tabizon Labor Suit Moved to C.D. California --------------------------------------------------------------- A case, Richard Tabizon, as an individual and on behalf of all others similarly situated, the Plaintiff, vs. Covenant Transport, Inc., a Corporation, and Does 1 through 50, inclusive, the Defendants, Case No.: 18STCV03468, was removed from the Los Angeles County Superior Court, to the U.S. District Court for the Central District of California (Western Division - Los Angeles). The Central District of California Court Clerk Assigned Case No. 2:18-cv-10147-PA-PJW to the proceeding. The suit alleges Labor/Management Relations violation. The case is assigned to the Hon. Judge Percy Anderson.[BN] Covenant Transport is a truckload carrier headquartered in Chattanooga, Tennessee. The company provides temperature controlled trucking, regional delivery, and longhaul delivery. Having been founded on Christian principles, it also promotes a Pro-Life agenda. Attorneys for Richard Tabizon: David J Lee, Esq. DAVID LEE LAW 515 South Flower Street Suite 1900 Los Angeles, CA 90071 Telephone: (213) 236-3536 Facsimile: (866) 658-4722 E-mail: david@davidjleelaw.com - and - Edward W Choi, Esq. CHOI AND ASSOCIATES APC 515 South Figueroa Street Suite 1250 Los Angeles, CA 90071 Telephone: (213) 381-1515 Facsimile: (213) 465-4885 E-mail: edward.choi@calaw.biz - and - Larry W Lee, Esq. DIVERSITY LAW GROUP PC 515 South Figueroa Street Suite 1250 Los Angeles, CA 90071 Telephone: (213) 488-6555 Facsimile: (213) 488-6554 E-mail: lwlee@diversitylaw.com Attorneys for Covenant Transport, Inc.: Kai-Ching Cha, Esq. Richard H Rahm, Esq. Gal Gressel, Esq. LITTLER MENDELSON PC 333 Bush Street 34th Floor San Francisco, CA 94104 Telephone: (415) 433-1940 Facsimile: (415) 399-8490 E-mail: kcha@littler.com rrahm@littler.com ggressel@littler.com CREDIT BUREAU: Class Certification Sought in O'Boyle Suit --------------------------------------------------------- Anne O'Boyle moves the Court to certify the class described in the complaint of the lawsuit entitled ANNE O'BOYLE, Individually and on Behalf of All Others Similarly Situated v. CREDIT BUREAU OF NAPA COUNTY, INC. d/b/a CHASE RECEIVABLES, Case No. 2:18-cv-01927-LA (E.D. Wisc.), and further asks that the Court both stay the motion for class certification and to grant the Plaintiff (and the Defendant) relief from the Local Rules setting automatic briefing schedules and requiring briefs and supporting material to be filed with the Motion. Dicta in the Supreme Court's decision in Campbell-Ewald Co. v. Gomez, left open the possibility that a defendant facing a class action complaint could moot a class representative's case by depositing funds equal to or in excess of the maximum value of the plaintiff's individual claim with the court and having the court enter judgment in the plaintiff's favor prior to the filing of a class certification motion, the Plaintiff asserts, citing Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016). To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion. Damasco v. Clearwire Corp., 662 F.3d 891, 896 (7th Cir. 2011), overruled on other grounds, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015) ("The pendency of that motion [for class certification] protects a putative class from attempts to buy off the named plaintiffs."). While the Seventh Circuit has held that the specific procedure described in Campbell-Ewald cannot force the individual settlement of a class representative's claims, the same decision cautions that other methods may prevent a plaintiff from representing a class, the Plaintiff tells the Court, citing Fulton Dental, LLC v. Bisco, Inc., No. 16-3574, 2017 U.S. App. LEXIS 10839 *9-10 (7th Cir. June 20, 2017). The Plaintiff asserts that one defendant has attempted a similar tactic by sending a certified check to the proposed class representative. Bonin v. CBS Radio, Inc., No. 16-cv-674-CNC (E.D. Wis.); see also Severns v. Eastern Account Systems of Connecticut, Inc., Case No. 15-cv-1168, 2016 U.S. Dist. LEXIS 23164 (E.D. Wis. Feb. 24, 2016). The Plaintiff is obligated to move for class certification to protect the interests of the putative class, the Plaintiff contends. As the Motion to certify a class is a placeholder motion as described in Damasco, the parties and the Court should not be burdened with unnecessary paperwork and the resulting expense when short motion to certify and stay should suffice until an amended motion is filed, the Plaintiff asserts. The Plaintiff also asks to be appointed as class representative, and for the appointment of Ademi & O'Reilly, LLP, as class counsel.[CC] The Plaintiff is represented by: John D. Blythin, Esq. Mark A. Eldridge, Esq. Jesse Fruchter, Esq. Ben J. Slatky, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482-8000 Facsimile: (414) 482-8001 E-mail: jblythin@ademilaw.com meldridge@ademilaw.com jfruchter@ademilaw.com bslatky@ademilaw.com CREDIT SYSTEMS: Whalen's Proceedings on Bid to Certify Stayed ------------------------------------------------------------- The Hon. William E. Duffin granted the Plaintiff's motion to stay further proceedings on the motion for class certification in the lawsuit titled THOMAS WHALEN, Individually and on Behalf of All Others Similarly Situated v. CREDIT SYSTEMS OF THE FOX VALLEY, INC., Case No. 2:18-cv-01914-WED (E.D. Wisc.). On December 5, 2018, the Plaintiff filed a class action complaint. At the same time, the Plaintiff filed what the Court commonly refers to as a "protective" motion for class certification. In this Motion, the Plaintiff moved to certify the class described in the complaint but also moved the Court to stay further proceedings on that motion. In Damasco v. Clearwire Corp., 662 F.3d 891, 896 (7th Cir. 2011), the court suggested that class‐action plaintiffs "move to certify the class at the same time that they file their complaint." "The pendency of that motion protects a putative class from attempts to buy off the named plaintiffs." However, because parties are generally unprepared to proceed with a motion for class certification at the beginning of a case, the Damasco court suggested that the parties "ask the district court to delay its ruling to provide time for additional discovery or investigation." Accordingly, the Court rules that the Plaintiff's motion to stay further proceedings on the motion for class certification is granted. The parties are relieved from the automatic briefing schedule set forth in Civil Local Rule 7(b) and (c). Moreover, Judge Duffin notes, for administrative purposes, it is necessary that the Clerk terminate the Plaintiff's motion for class certification. However, this Motion will be regarded as pending to serve its protective purpose under Damasco.[CC] DESERT STATES: Koch Seeks to Recover Pension Benefits Under ERISA ----------------------------------------------------------------- Robert Koch, Plaintiff, on behalf of himself and all others similarly situated v. Desert States Employers & UFCW Unions Pension Plan; Board of Trustees of the Desert States Employers & UFCW Unions Pension Plan, Plan Administrator of the Desert States Employers & UFCW Unions Pension Plan, Case No. 2:18-cv-04458-DMF (D. Ariz., December 5, 2018), accuses the Defendants of violating the Employee Retirement Income Security Act. Mr. Koch brings this action under the ERISA for benefits and to declare his rights under the terms of the Desert States Employers & UFCW Unions Pension Plan and to enforce his rights and remedy violations of the Plan and ERISA. He alleges, inter alia, that when he commenced receipt of retirement benefits several years after attainment of normal retirement age, the Defendants failed to pay him that portion of his nonforfeitable vested retirement benefits attributable to the years following his attainment of normal retirement age to account for the delay past his Normal Retirement Date. The Plan is a defined benefit employee pension benefit plan within the meaning of the ERISA, which was established and maintained for the purpose of providing retirement benefits for participants and their beneficiaries, including the Plaintiff. The Board of Trustees of the Desert States Employers & UFCW Pension Plan is the Administrator of the Plan and a fiduciary with respect to the Plan within the meaning of the ERISA.[BN] The Plaintiff is represented by: Susan Martin, Esq. Jennifer Kroll, Esq. Michael M. Licata, Esq. MARTIN & BONNETT, P.L.L.C. 4647 N. 32nd Street, Suite 185 Phoenix, AZ 85018 Telephone: (602) 240-6900 E-mail: smartin@martinbonnett.com jkroll@martinbonnett.com mlicata@martinbonnett.com DOUBLE DOWN: Seeks 9th Circuit Review of Ruling in Benson Suit -------------------------------------------------------------- Defendants Double Down Interactive, LLC, and International Game Technology filed an appeal from a court ruling in the lawsuit styled Adrienne Benson, et al. v. Double Down Interactive, LLC, et al., Case No. 2:18-cv-00525-RBL, in the U.S. District Court for the Western District of Washington, Seattle. As reported in the Class Action Reporter on Dec. 4, 2018, Judge Ronald B. Leighton denied the Defendants' Motion to Compel Arbitration. The Plaintiffs filed their Complaint against Double Down on April 17, 2018, alleging that Double Down Casino constitutes illegal gambling in violation of RCW Section 4.24.070. Double Down Casino is a game available as a computer or mobile app and allows users to play gambling games with virtual "chips" that may be purchased in the app after users run out of the initial free allotment. Despite the fact that these chips cannot be redeemed for actual money, the Plaintiffs allege that they are nonetheless valuable because they can be used to continue playing. Therefore, the Plaintiffs allege that Double Down's game amounts to gambling as defined by statute and that they are entitled to recover the money they lost playing. The appellate case is captioned as Adrienne Benson, et al. v. Double Down Interactive, LLC, et al., Case No. 18-36015, in the United States Court of Appeals for the Ninth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Appellants Double Down Interactive, LLC and International Game Technology's opening brief is due on February 4, 2019; -- Appellees Adrienne Benson and Mary Simonson's answering brief is due on March 6, 2019; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Plaintiffs-Appellees ADRIENNE BENSON and MARY SIMONSON, individually and on behalf of all others similarly situated, are represented by: Rafey S. Balabanian, Esq. EDELSON P.C. 350 N. LaSalle Street, Suite 1400 Chicago, IL 60654 Telephone: (312) 589-6370 E-mail: rbalabanian@edelson.com - and - Janissa A. Strabuk, Esq. TOUSLEY BRAIN STEPHENS PLLC 1700 Seventh Avenue, Suite 2200 Seattle, WA 98101 Telephone: (206) 682-5600 E-mail: jstrabuk@tousley.com Defendant-Appellant DOUBLE DOWN INTERACTIVE, LLC, a Washington limited liability company, is represented by: Jaime Drozd Allen, Esq. OGDEN MURPHY WALLACE PLLC 901 Fifth Avenue, Suite 3500 Seattle, WA 98164 Telephone: (206) 447-7000 E-mail: jaimeallen@dwt.com - and - Cyrus Earl Ansari, Esq. Stuart Russell Dunwoody, Esq. DAVIS WRIGHT TREMAINE LLP 920 Fifth Avenue, Suite 3300 Seattle, WA 98104-1610 Telephone: (206) 757-8353 E-mail: cyrusansari@dwt.com stuartdunwoody@dwt.com Defendant-Appellant INTERNATIONAL GAME TECHNOLOGY, a Nevada corporation, is represented by: Bonnie Lau, Esq. DENTONS US LLP 525 Market Street San Francisco, CA 94105-2708 Telephone: (415) 882-5083 E-mail: bonnie.lau@dentons.com - and - Adam T. Pankratz, Esq. OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 1201 Third Avenue, Suite 5150 Seattle, WA 98101 Telephone: (206) 693-7057 E-mail: adam.pankratz@ogletree.com DOUGLAS K. WHITE: Faces Pagan et al. Suit in M.D Pennsylvania ------------------------------------------------------------- A class action lawsuit has been filed against Warden Douglas K. White. The lawsuit is captioned as Angel M. Pagan, Vladimir Cruz, Edwin Michael Brown, and Jaime Sanchez, and Others Similarly Situated, the Plaintiffs, vs. Warden Douglas K. White and J. Ray Ormond, the Defendants, Case No. 1:18-cv-02317-JEJ-KM (M.D. Pa., Dec .4, 2018). The suit alleges civil rights violation. The case is assigned to the Hon. John E. Jones, III. The Plaintiffs appear pro se. DRIFT HOTEL: Faces Honeywell ADA Suit in S.D. Florida ----------------------------------------------------- A class action lawsuit has been filed against Drift Hotel, Inc. The lawsuit is styled Cheri Honeywell, Individually And On Behalf Of All Others Similarly Situated, the Plaintiff, vs. Drift Hotel, Inc., A Florida Corporation, the Defendant, Case No.: 0:18-cv-62959-CMA (S.D. Fla., Dec. 4, 2018). The suit alleges Americans with Disabilities Act violation. The case is assigned to the Hon. Judge Cecilia M. Altonaga. Drift Hotel, Inc. is in the hotels business.[BN] Attorneys for Plaintiff: Jessica Lynn Kerr, Esq. JESSICA L. KERR, P.A. DBA THE ADVOCACY GROUP 200 S.E. 6th Street, Suite 504 Fort Lauderdale, FL 33301 Telephone: (954) 282-1858 Facsimile: (844) 786-3694 E-mail: service@advocacypa.com DYNAMIC RECOVERY: Jones-Bell Suit Alleges FDCPA Violation --------------------------------------------------------- Natasha Jones-Bell, individually and on behalf of all others similarly situated v. Dynamic Recovery Solutions, LLC, CF Medical, LLC and John Does 1-25, Case No. 2:18-cv-13634 (E.D. Mich., November 20, 2018), seeks damages and declaratory relief under the Fair Debt Collection Practices Act. The Plaintiff alleges abusive, deceptive and unfair debt collection practices by the Defendants. The Plaintiff is a resident of the State of Michigan, County of Wayne, residing at 29042 Burningtree Lane, Romulus, MI 48174. The Defendants are debt collectors that use the mail, telephone, and facsimile to collect debts. [BN] The Plaintiff is represented by: Yaakov Saks, Esq. STEIN SAKS, PLLC 285 Passaic Street Hackensack, NJ 07601 Tel: (201) 282-6500 Fax: (201) 282-6501 E-mail: ysaks@steinsakslegal.com EDISON BALLROOM: Dawson-Wainer Files Bid for Judicial Intervention ------------------------------------------------------------------ A request for judicial intervention was filed on December 4, 2018, in the case docketed as Mariella Dawson-Wainer, individually and on behalf of others similarly situated, Plaintiffs, v. Edison Ballroom, LLC, Jaime C. Masada, Jerry Wartski and any other related entities, Defendants, Case No. 605824/2018 (N.Y. Sup., May 2, 2018). Wainer seeks to recover unlawfully retained tips and gratuities owed while working as server for the Defendants pursuant to New York Labor Law. Defendants operate a catered and ticketed events business at the premises known as Edison Ballroom at 228 W. 47th Street, New York, NY. [BN] Plaintiff is represented by: LEEDS BROWN LAW, P.C. One Old Country Road, Suite 347 Carle Place, NY 11514 Tel: (516) 873-9550 Defendants are represented by: HOFFMAN & ASSOCIATES 360 West 31st Street New York, NY 10001 Tel: (212) 465-8840 EL PUNTO PERUANO: Fails to Pay Overtime Under FLSA, Lemos Claims ---------------------------------------------------------------- MARIO LEMOS, individually and on behalf of all others similarly situated v. EL PUNTO PERUANO, LLC and VITALINO VASQUEZ, Case No. 2:18-cv-16870 (D.N.J., December 5, 2018), alleges that the Defendants have intentionally, willfully, and repeatedly harmed the Plaintiff and the FLSA Collective Plaintiffs by engaging in a pattern, practice and policy of violating the Fair Labor Standards Act by failing to pay their employees the applicable overtime rates for all time worked in excess of 40 hours per week. Punto Peruano is a New Jersey limited liability company located at 36 Watchung Avenue, in Plainfield, New Jersey. Vitalino Vasquez is an owner of Punto Peruano. Punto Peruano is a restaurant that serves Peruvian cuisine to its patrons.[BN] The Plaintiff is represented by: Adam Sackowitz, Esq. KATZ MELINGER PLLC 280 Madison Avenue, Suite 600 New York, NY 10016 Telephone: (212) 460-0047 E-mail: ajsackowitz@katzmelinger.com FEDERAL AVIATION: Wins Bid to Dismiss $5 Registration Rule ---------------------------------------------------------- The United States District Court, District of Columbia, issued a Memorandum Opinion and Order granting Defendant's Motion to Dismiss the case captioned ROBERT C. TAYLOR, Plaintiff, v. FEDERAL AVIATION ADMINISTRATION, et al., Defendants, Case No. 18-cv-00035(APM). (D.D.C.). FAA moves to dismiss, arguing that (1) the Plaintiff lacks standing to sue, (2) the D.C. Circuit has exclusive jurisdiction over this matter, and (3) the Complaint fails to state a claim upon which relief can be granted. Plaintiff Robert Taylor is a model aircraft enthusiast who owns multiple model planes and flies them as a hobby and for recreational purposes. He brings this action on behalf of himself and a putative class of all model aircraft owners who paid $5 to register their aircraft with the Federal Aviation Administration (FAA) under a rule later struck down by the D.C. Circuit. The Plaintiff claims that the registration requirement violated the Privacy Act and the Little Tucker Act. He also advances against the FAA a violation of his constitutional right of privacy, as well as the common law tort of unjust enrichment. The time value of money is the notion that money available today is worth more than the same amount of money in the future. That principle is premised on the idea that money can earn interest over time or be put to some other income-generating use, if invested. Neither the Supreme Court nor the D.C. Circuit has determined whether the lost time value of money is a harm concrete enough to satisfy the injury-in-fact requirement. Indeed, only one circuit court appears to have even come close to embracing such a theory, and there the alleged lost use was for a sum of money ($10,000) far greater than at issue here. The only other circuit to have faced the question declined to reach it. And some district courts have rejected the notion that lost time value of money is constitutionally sufficient to satisfy standing when the amount wrongfully taken or withheld was discharged before filing suit a circumstance comparable to this case, as Plaintiff now must pay the $5 fee to register his model aircraft. Thus, accepting the lost time value of money as a cognizable constitutional injury is far from well established. The court need not, however, venture down this rabbit hole. For even if the lost time value of money could suffice to make out an Article III injury, the bare allegation that a plaintiff has lost the value of the time and resources sets out an injury that is too abstract and indefinite to confer Article III standing. Here, the Plaintiff does not allege any facts to suggest that if he had not paid the $5 registration fee he would have invested the $5 in some way to increase its value. At most, he offers only generalizations that he was deprived of the use of those funds and is entitled to be compensated for his lost use of funds. Such conclusory proclamations are not the kind of clear allegations of fact necessary to establish an injury in fact, even at the motion to dismiss stage. Other courts have reached the same conclusion. Therefore, as pleaded, the Plaintiff does not allege a sufficient injury in fact to support standing based on the lost time value of money. Unlawful Maintenance of Personal Information The Plaintiff's contention that the FAA's unlawful acquisition and maintenance of his personal information constitutes a cognizable injury suffers from similar problems. Presumably, this asserted injury arises from the FAA's alleged violation of the Privacy Act. In Doe v. Chao, the Supreme Court explained that the Privacy Act's reference to adverse effect in 5 U.S.C. Section552a(g)(1)(D), the statutory section under which Plaintiff asserts his Privacy Act claim, acts as a term of art identifying a potential plaintiff who satisfies the injury-in-fact and causation requirements of Article III standing, and who may consequently bring a civil action without suffering dismissal for want of standing to sue. Thus, the wrongful possession of Plaintiff's personal information, without more, does not establish an injury in fact. The Plaintiff's claimed injury arising from the FAA's keeping of his personal information also runs aground on Circuit precedent. Recently, the D.C. Circuit held in Owner-Operator Independent Drivers Ass'n, Inc. v. U.S. Department of Transportation, that the mere existence of inaccurate information about truckers' driving records in an agency database does not amount to a sufficiently concrete injury to confer standing, even where the agency had a statutory obligation to keep accurate records. If the mere maintenance of inaccurate information is not sufficient to confer standing, surely an agency's retention of prosaic personal information is not either. Plaintiff therefore lacks standing to assert his claim under the Privacy Act. Redressability Here, the Plaintiff asserts that the court can redress his claimed injuries by (1) refunding his $5 registration fee, (2) compensating him for the lost use of the $5 fee, and (3) awarding him statutory damages under the Privacy Act as a result of the FAA's unlawful, intentional, and willful conduct. The court cannot award the Plaintiff a $5 refund, or some lesser amount, to compensate him for the lost time value of money. As the FAA correctly points out, making Plaintiff whole for the lost use of $5 over a two-year period would be tantamount to an award of interest. Neither the Privacy Act nor the Little Tucker Act the only statutory claims advanced by Plaintiff provide such a waiver. Moreover, the Plaintiff cannot avoid the bar of the no-interest rule by recharacterizing his claimed injury as compensatory damages. The character or nature of `interest' cannot be changed by calling it damages, loss, earned increment, just compensation, discount, offset or penalty, or any other term, because it is still interest and the no-interest rule applies to it. Plaintiff's claim for the lost use of the $5 fee is a demand for interest. Therefore, the court lacks the power to redress Plaintiff's asserted injury of the lost time value of money. Here, the Plaintiff's Complaint contains no factual basis from which the court can plausibly infer that it would have the power to award him the minimum $1,000 statutory award to redress his claimed injury. Having made no allegation whatsoever of pecuniary or economic harm caused by the alleged Privacy Act violation, the court is foreclosed from granting the $1,000 statutory award he seeks. Causation Here, to some degree, the Plaintiff has brought harm upon himself. He did not avail himself of the opportunity that the FAA afforded registrants post-Taylor to request both a refund and removal of his personal information from the agency's database. Had he done so, Plaintiff would have achieved much of what he now seeks, at least on his own behalf, through this lawsuit. The return of the $5 application fee when the FAA offered it would have reduced the lost time value of money, and the deletion of his personal information would have ended the agency's possession of it. There would have been little to remedy at the time he filed suit. Thus, the injury he now claims feels manufactured. In any event, the court forgoes making any finding as to causation, because the FAA has not argued that the element is lacking and the absence of the remaining two elements is sufficient to conclude Plaintiff does not have standing. A full-text copy of the District Court's November 26, 2018 Memorandum Opinion and Order is available at https://tinyurl.com/yaw9nagn from Leagle.com. ROBERT C. TAYLOR, on behalf of himself and all others similarly situated, Plaintiff, represented by M. Therese Waymel -- therese.waymel@carrmaloney.com -- CARR MALONEY, P.C., Ryan M. Poteet -- rmp@carrmaloney.com -- CARR MALONEY, P.C., John Peter Glaws IV -- peter.glaws@carrmaloney.com -- CARR MALONEY, P.C., Thomas L. McCally -- thomas.mccally@carrmaloney.com -- CARR MALONEY, P.C. & Matthew D. Berkowitz -- matthew.berkowitz@carrmaloney.com -- CARR MALONEY, P.C. FEDERAL AVIATION ADMINISTRATION & MICHAEL P. HUERTA, as Administrator of the Federal Aviation Administration, Defendants, represented by Daniel Riess, U.S. DEPARTMENT OF JUSTICE. FG KEY: Faces Honeywell ADA Suit in Southern District of Florida ---------------------------------------------------------------- A class action lawsuit has been filed against FG Key Haven, L.L.C. The lawsuit is styled Cheri Honeywell, individually and on behalf of all others similarly situated, the Plaintiff, vs. FG Key Haven, L.L.C., a Florida limited liability company, the Defendant, Case No.: 0:18-cv-62960-DPG (S.D. Fla., Dec. 4, 2018). The suit alleges Americans with Disabilities violation. The case is assigned to the Hon. Judge Judge Darrin P. Gayles.[BN] Attorneys for Cheri Honeywell: Jessica Lyaintiffnn Kerr, Esq. JESSICA L. KERR, P.A. DBA THE ADVOCACY GROUP 200 S.E. 6th Street, Suite 504 Fort Lauderdale, FL 33301 Telephone: (954) 282-1858 Facsimile: (844) 786-3694 E-mail: service@advocacypa.com FINANCE SYSTEM: Seventh Circuit Appeal Filed in Larkin Suit ----------------------------------------------------------- Plaintiff Jennifer R. Larkin filed an appeal from a court ruling in the lawsuit titled Jennifer Larkin v. Finance System of Green Bay, et al., Case No. 1:18-cv-00496-WCG, in the U.S. District Court for the Eastern District of Wisconsin. The nature of suit is stated as consumer credit. As previously reported in the Class Action Reporter, the purported class action lawsuit was filed on March 28, 2018. Finance System of Green Bay, Inc. is a debt collector. The appellate case is captioned as Jennifer Larkin v. Finance System of Green Bay, et al., Case No. 18-3582, in the U.S. Court of Appeals for the Seventh Circuit. The briefing schedule in the Appellate Case states that the Appellant's brief is due on or before January 15, 2019, for Jennifer R. Larkin.[BN] Plaintiff-Appellant JENNIFER R. LARKIN, individually and on behalf of all those similarly situated, is represented by: Francis R. Greene, Esq. EDELMAN COMBS LATTURNER & GOODWIN, LLC 20 S. Clark Street Chicago, IL 60603-0000 Telephone: (312) 739-4200 E-mail: fgreene@edcombs.com - and - Philip D. Stern, Esq. Andrew T. Thomasson, Esq. STERN THOMASSON LLP 150 Morris Avenue Springfield, NJ 07081-1315 Telephone: (973) 379-7500 Facsimile: (973) 532-5868 E-mail: philip@sternthomasson.com andrew@sternthomasson.com Defendant-Appellee FINANCE SYSTEM OF GREEN BAY, INC., is represented by: Jessica Lee Prom Klander, Esq. BASSFORD REMELE 100 S. Fifth Street Minneapolis, MN 55402 Telephone: (612) 376-1660 E-mail: jklander@bassford.com FLOWERS BAKING: Button Suit Moved to Central Dist. of California ---------------------------------------------------------------- A case, Richard Button, an individual, on behalf of himself and others similarly situated, the Plaintiff, vs. Flowers Baking Co. of Henderson, LLC, a Nevada limited liability company Erroneously Sued As FBC of Henderson, LLC, and Does 1 through 50, inclusive, the Defendants, Case No. 18STCV00865, was removed from the Los Angeles Superior Court, to U.S. District Court for the Central District of California (Western Division - Los Angeles) on Dec. 5, 2018. The Central District of California Court Clerk assigned Case No. 2:18-cv-10116-RGK-AS to the proceeding. The suit alleges employment discrimination. The case is assigned to the Hon. Judge R. Gary Klausner. The Defendant is in the breads, rolls and buns business.[BN] Attorneys for Plaintiff: Alvin B Lindsay, Esq. David Yeremian, Esq. DAVID YEREMIAN AND ASSOCIATES INC 535 North Brand Boulevard Suite 705 Glendale, CA 91203-1989 Telephone: (818) 230-8380 Facsimile: (818) 230-0308 E-mail: alvin@yeremianlaw.com david@yeremianlaw.com - and - Walter L Haines, Esq. UNITED EMPLOYEES LAW GROUP PC 5500 Bolsa Avenue Suite 201 Huntington Beach, CA 92649 Telephone: (562) 652-2242 Facsimile: (562) 256-1006 E-mail: walter@whaines.com Attorneys for Defendant: Alexander Miller Chemers, Esq. Jared Lee Palmer, Esq. Johnnie A. James, Esq. OGLETREE DEAKINS NASH SMOAK AND STEWART PC 400 South Hope Street Suite 1200 Los Angeles, CA 90071 Telephone: (213) 239-9800 Facsimile: (213) 239-9045 E-mail: alexander.chemers@ogletreedeakins.com jared.palmer@ogletree.com johnnie.james@ogletreedeakins.com GEICO GENERAL: Savage Suit Moved to Southern District of Florida ---------------------------------------------------------------- A case, Amanda Savage, Individually and on behalf of all those similarly situated, the Plaintiff, vs. GEICO General Insurance Company, the Defendant, Case No.: CACE-18-025687, was removed from the 17th Judicial Circuit, Broward County, Florida, to the U.S. District Court for the Southern District of Florida (Ft Lauderdale) on on Dec. 4, 2018. The Southern District of Florida Court Clerk assigned Case No. 0:18-cv-62953-UU to the proceeding. The suit alleges insurance-related violation. The case is assigned to the Hon. Judge Ursula Ungaro. GEICO provides personal automobile insurance products. The company operates as a private passenger auto insurer.[BN] Attorneys for Amanda Savage: Casim Adam Neff, Esq. NEFF INSURANCE LAW, PLLC 4051 27th Ave. North Saint Petersburg, FL 33713 Telephone: (727) 342-0617 - and - Craig Evan Rothburd, Esq. CRAIG E. ROTHBURD, P.A. 320 W. Kennedy Blvd., Suite 700 Tampa, FL 33606 Telephone: (813) 251-8800 Facsimile: 251-5042 E-mail: crothburd@e-rlaw.com - and - Edward Herbert Zebersky, Esq. ZEBERSKY PAYNE, LLP 110 S.E. 6th Street, Suite 2150 Fort Lauderdale, FL 33301 Telephone: (954) 989-6333 Facsimile: (954) 989-7781 E-mail: ezebersky@zpllp.com Attorneys for Defendant: Kristen Wenger Bracken, Esq. Lindsey Ryan Trowell, Esq. John Patrick Marino, Esq. SMITH GAMBRELL & RUSSELL, L.L.P. 50 North Laura Street, Suite 2600 Jacksonville, FL 32202 Telephone: (904) 598-6100 E-mail: kbracken@sgrlaw.com ltrowell@sgrlaw.com jmarino@sgrlaw.com GENERAL ELECTRIC: Court Dismisses Count III in ERISA Suit --------------------------------------------------------- In the case, IN RE: G.E. ERISA LITIGATION, Civil Action No. 17-cv-12123-IT (D. Mass.), Judge Indira Talwani of the U.S. District Court for the District of Massachusetts granted in part and denied in part the Defendants' Motion to Dismiss the Second Consolidated Amended Complaint. The putative class action is brought by participants in a 401(k) plan against the institutional and individual Defendants, alleging breaches of fiduciary duties and prohibited transactions in violation of the Employee Income Retirement Security Act of 1974 ("ERISA"). Eligible employees of GE and participating affiliates can participate in GE's 401(k) Plan, also known as the GE Retirement Savings Plan by investing up to 30% of their eligible earnings in any of a number of investment options within the Plan. The action pertains to the Plaintiffs' investments in five mutual funds among these options: the GE Institutional Strategic Investment Fund, the GE Institutional Small Cap Equity Fund, the GE Institutional International Equity Fund, the GE RSP Income Fund, and the GE U.S. Equity Fund. The GE Funds are the only actively managed funds open to eligible employees of GE and participating affiliates. The Employees and affiliates can also participate in the Plan by investing in the GE Stock Fund, six collective trust index funds, Target Date Funds, and/or a Money Market Fund. GE also required that certain proprietary investment options, the Income Fund and the US Equity Fund, be offered to Plan participants. The Plaintiffs allege that the Defendants used the Plan participants to offset the investor exodus from the underperforming funds despite the fact that the Plan participants could have been better served by investment options from unaffiliated companies that were cheaper and better performing. As of Dec. 31, 2015, the Plan owned the vast majority of assets in the five mutual funds; assets from Plan participants ranged from approximately 40% of all fund assets to approximately 96% of all fund assets, depending on the fund and the year. All of the Plan's actively managed funds were managed and sponsored by GE's whollyowned subsidiary, GE Asset Management, until July 1, 2016, when GE sold the subsidiary to State Street for a reported $485 million dollars. The Plaintiffs allege that GE retained the poorly performing proprietary funds as a constant source of fees and to help inflate the market value of GE Asset Management prior to its sale to State Street. Of the total $28 billion value of the Plan, at the time of its sale, GE Asset Management managed $8 billion in assets. Furthermore, from 2010 to 2016, GE earned more than $175 million in fees from the proprietary funds. Pending before the court is the Defendants' Motion to Dismiss the Second Consolidated Amended Complaint. The Defendants argue that Counts III and IV are barred because of the statute of limitations. They raise two further arguments regarding prohibited transactions: (1) that ERISA Section 406 does not apply because the management fees are not a "plan asset," and (2) that even if management fees are a "plan asset," the Plaintiffs' claim must be dismissed because they have not pled a non-exempt prohibited transaction. After a hearing, the Curt denied the motion as to Counts I, II, V, VI, VII, and VIII, and took Counts III and IV under advisement. Judge Talwani finds that to the extent that the basis of the Plaintiffs' claim is that the Defendants only offered proprietary funds as the sole actively managed investment options of the Plan, the Plaintiffs had actual knowledge the day they elected their Plan options. Thus, Count III is barred by the statute of limitations. Next, he finds that there are no facts in the Second Amended Complaint to suggest that the Plaintiffs had actual knowledge that their funds were performing poorer and their fees cost higher compared to other funds. Even if they did, the Plaintiffs would certainly not have known about the sale of GE Asset Management prior to July 1, 2016, to State Street Corporation. The Plaintiffs do not only allege that the Defendants profited from the management fees, but that they also profited from the financial health of GE Asset Management due to the selection and presence of the GE Funds in GE Asset Management's portfolio. This financial benefit culminated in the sale of GE Asset Management for a reported $485 million dollars. As July 2016 is within the three-year statute of limitations, the Judge holds that Count IV is not barred by the statute of limitations. Finally, the Plaintiffs have alleged that the Defendants continued to place and keep them in GE Funds despite the funds' lackluster performances to prop up the funds prior to GE Asset Management's sale to State Street. The allegation, at the motion to dismiss stage, would fail the duty of prudence under ERISA Section 404(a)(1)(B).12 At this stage, this exemption would not apply to Count IV. For these reasons, Judge Talwani granted in part and denied in part the Defendant's motion. She granted the Defendants' motion as to Count III and denied as to Count IV. A full-text copy of the Court's Dec. 14, 2018 Memorandum and Order is available at https://is.gd/cqNv2F from Leagle.com. Brian Sullivan, Individually and on behalf of a class of all persons simlarly situated and on behald of the GE RETIREMENT SAVINGS PLAN, Plaintiff, represented by Jordan D. Mamorsky -- jmamorsky@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, pro hac vice, Lee Squitieri, Squitieri & Fearon, LLP, pro hac vice, Theodore M. Hess-Mahan -- thess-mahan@hutchingsbarsamian.com -- Hutchings, Barsamian, Cross and Mandelcorn, LLP, Jacob A. Walker -- jake@blockesq.com -- Block & Leviton LLP, Jason M. Leviton -- jason@blockesq.com -- Block & Leviton LLP & Jeffrey C. Block -- jeff@blockesq.com -- Block & Leviton LLP. Kristi Haskins, Individually and as representatives of a class of similarly situated persons in the General Electric Retirement Savings Plan and the General Electric Savings and Security Program, Plaintiff, represented by Charles H. Field -- cfield@sanfordheisler.com -- Sanford Heisler Sharp, LLP, pro hac vice, David W. Sanford -- dsanford@sanfordheisler.com -- Sanford Heisler, LLP, David Hahn Tracey -- dtracey@sanfordheisler.com -- Sanford Heisler Sharp, LLP, pro hac vice, Kevin Sharp -- ksharp@sanfordheisler.com -- Sanford Heisler Sharp, LLP, pro hac vice, Andrew H. Miller -- amiller@sanfordheisler.com -- Sanford Heisler Sharp, LLP, Edward D. Chapin -- echapin@sanfordheisler.com -- Sanford Heisler SHarp, LLP, pro hac vice, Jacob A. Walker, Block & Leviton LLP, Jason M. Leviton, Block & Leviton LLP & Jeffrey C. Block, Block & Leviton LLP. Anthony Powell, Individually and on behalf of a class of all persons simlarly situated and on behald of the GE RETIREMENT SAVINGS PLAN, Plaintiff, represented by Evan J. Kaufman , Robbins Geller Rudman & Dowd LLP, pro hac vice, Jason M. Leviton, Block & Leviton LLP, Jordan D. Mamorsky, Robbins Geller Rudman & Dowd LLP, pro hac vice, Orin Kurtz -- okurtz@gardylaw.com -- Gardy & Notis, LLP, pro hac vice, R. Joseph Barton -- jbarton@blockesq.com -- Block & Leviton LLP, Jacob A. Walker, Block & Leviton LLP & Jeffrey C. Block, Block & Leviton LLP. Frank Magliocca, Individually and on behalf of a class of all persons simlarly situated and on behald of the GE RETIREMENT SAVINGS PLAN, Kelvin Douglas, Individually and on behalf of a class of all persons simlarly situated and on behald of the GE RETIREMENT SAVINGS PLAN & Melinda Stubblefield, Individually and on behalf of a class of all persons simlarly situated and on behald of the GE RETIREMENT SAVINGS PLAN, Plaintiffs, represented by Evan J. Kaufman, Robbins Geller Rudman & Dowd LLP, pro hac vice, Jason M. Leviton, Block & Leviton LLP, Jordan D. Mamorsky, Robbins Geller Rudman & Dowd LLP, pro hac vice, Orin Kurtz, Gardy & Notis, LLP, pro hac vice, R. Joseph Barton, Block & Leviton LLP, pro hac vice, Jacob A. Walker, Block & Leviton LLP & Jeffrey C. Block, Block & Leviton LLP. Maria LaTorre, Individually and on behalf of a class of all persons simlarly situated and on behald of the GE RETIREMENT SAVINGS PLAN & Robyn Berger, Individually and on behalf of a class of all persons simlarly situated and on behald of the GE RETIREMENT SAVINGS PLAN, Plaintiffs, represented by Adam M. Stewart, Shapiro Haber & Urmy LLP, Edward F. Haber, Shapiro Haber & Urmy LLP, Jordan D. Mamorsky, Robbins Geller Rudman & Dowd LLP, pro hac vice, Jacob A. Walker, Block & Leviton LLP, Jason M. Leviton, Block & Leviton LLP & Jeffrey C. Block, Block & Leviton LLP. Laura Scully, Individually and as a representative of a class similarly situated persons in the General Electric Retirement Savings Plan and the General Electric Savings and Security Program & Donald J. Janak, Individually and as representative of a class of similarly situated persons in the General Electric Retirement Savings Plan and the General Electric Savings and Security Program, Plaintiffs, represented by Andrew H. Miller, Sanford Heisler Sharp, LLP, Charles H. Field, Sanford Heisler Sharp, LLP, pro hac vice, David W. Sanford, Sanford Heisler, LLP, David Hahn Tracey, Sanford Heisler Sharp, LLP, pro hac vice, Kevin Sharp, Sanford Heisler Sharp, LLP, pro hac vice, Jacob A. Walker, Block & Leviton LLP, Jason M. Leviton, Block & Leviton LLP & Jeffrey C. Block, Block & Leviton LLP. General Electric Company, GE Asset Management Incorporated, Dmitri Stockton, Ralph Richard Layman, Rochelle Lazarus, Matthew Simpson, Francisco DSouza, Robert Lane, James Tisch, Matthew Zakrzewski, Marjin Dekkers, Mary Schapiro, Susan Hockfield, John J. Brennan, Benefit Plans Investment Committee, Michael Cosgrove, W. Geoffrey Beattie, GE Pension Board, Andrea Jung, David Wiederecht, James Mulva, Jeffrey Immelt, Don Torey, John Flannery, GEAM Committee, George Bicher, Jessica Holscott, James Rohr, Greg Hartch, Jeanne LaPorta, Paul Colonna, GE Board of Directors, Roger Penske, Matt Cribbins, Keith Sherin, Sam Nunn, Alan Lafley, James Cash, John Samuels, Carol Anderson, Douglas Warner, Kelly Lafnitzegger, Brian Worrell, Susan Peters, Jamie Miller, Jan Hauser, Ann Fudge, Robert Swieringa, Sharon Daley, John Lynch, Tracie Winbigler, Jeff Bornstein, Puneet Mahajan & Trevor Schauenberg, Defendants, represented by Alison V. Douglass -- adouglass@goodwinlaw.com -- Goodwin Procter, LLP, Jaime A. Santos -- jsantos@goodwinlaw.com -- Goodwin Procter LLP & James O. Fleckner -- jfleckner@goodwinlaw.com -- Goodwin Procter, LLP. John Walker, Defendant, represented by James O. Fleckner, Goodwin Procter, LLP. GRAMERCY PARK HOTEL: Ullo Hits Illegal Tip Pool, Seeks Overtime Pay ------------------------------------------------------------------- Allison Ullo, individually and on behalf of others similarly situated, Plaintiff, v. Aby Rosen, Gregg Popkin, Patrick Hall, Dane Asermely, Sebastien Lefavre, RFR Holding LLC, GPH Partners LLC, GPH Management LLC and GP Services LLC, Defendants, Case No. 18-cv-11281 (S.D. N.Y., December 4, 2018), seeks redress for damages, liquidated damages, statutory damages, prejudgment interest, post-judgment interest, attorneys' fees and costs for violation of the Fair Labor Standards Act of 1938 and New York Labor Law. Defendants own and operate the hotel property known as "Gramercy Park Hotel" where Ullo worked as waitress at their location in 2 Lexington Avenue in New York, New York. Ullo claims overtime for off-the-clock work, swing shifts and was required to perform non-tipped duties including handling all paperwork that takes approximately 30 minutes to an hour despite being required to participate in a tip pool without being informed of the tip pool guidelines. [BN] Plaintiff is represented by: Joshua Levin-Epstein, Esq. LEVIN-EPSTEIN & ASSOCIATES, P.C. 1 Penn Plaza, Suite 2527 New York, NY 10119 Tel: (212) 792-0046 Email: joshua@levinepstein.com - and - David M. Kasell, Esq. 1038 Jackson Avenue, #4 Long Island City, NY 11101 Tel: (718) 404-6668 GUILLERMO PRADO: Wins Final OK of $275K Settlement in Ledo Suit --------------------------------------------------------------- The Hon. Lucy H. Koh issued an order granting final approval of the class action settlement in the lawsuit entitled CESAR LEDO, et al. v. GUILLERMO PRADO and MARIA PRADO, Case No. 5:17-cv-02393-LHK (N.D. Cal.). The classes are defined as: (1) The Overtime ("OT") Class includes all "non-exempt hourly employees who were employed by Defendants in California as non-exempt hourly employees between April 26, 2014 and December 31, 2014 who were not paid overtime at the rate of 1.5 times their regular rate of pay."; and (2) The Hourly Wage Dispute ("Hourly") Class includes "all non-exempt hourly employees who are employed or have been employed by Defendants from April 26, 2013 through April 1, 2018." The total gross recovery for both classes is $275,000. All members of the OT Class are members of the Hourly Class. The total net recovery for both classes is $179,850. There are 222 Hourly Class Members and 69 OT Class Members. Class members will receive in total an average of $810. The most a class member will receive in total is $6,485. The least a class member will receive in total is $4.30. The Hourly Class will receive a net total of $70,141. The Hourly Class Members will receive an average of $5.37 per workweek. The OT Class will receive a net total of $109,708. The OT Class Members will receive an average of $131.86 per workweek. The Court approves the Settlement and each of the releases and other terms set forth in the Settlement Agreement as fair, just, reasonable and adequate as to the Hourly and OT Classes, the Class Representatives, and the Defendants (collectively, the "Settling Parties"). The Settling Parties and the Claims Administrator are directed to perform in accordance with the terms set forth in the Settlement Agreement. The Court orders the appointment of Cesar Ledo, Miguel Ledo and Ricardo Choy Morey as Class Representatives for the Hourly Class and the OT Class for purposes of settlement. The Court orders the appointment of James Dal Bon, Esq., of the Law Offices of James Dal Bon as Class Counsel for the Settlement Classes for purposes of settlement and the releases and other obligations. The Defendant has agreed that the Claims Administrator shall pay from the Gross Settlement Amount: (i) to the Claims Administrator $14,000, and (ii) to the Class Representatives $2,500 each to reimburse them for their valuable services in initiating and maintaining this litigation, and the benefits conferred onto the Settlement Classes and Defendant's current and future employees as a result of the Action. The Court awards to Class Counsel $68,750 for attorney's fees, and $4,900 for costs. The Action is dismissed on the merits and with prejudice, permanently barring the Releasing Members from prosecuting any of the Released Claims. The Court reserves and retains exclusive and continuing jurisdiction over the Action, the Class Representatives, the Settlement Classes, and Defendant for the purposes of supervising the implementation, effectuation, enforcement, construction, administration and interpretation of the Settlement Agreement and this Judgment.[CC] HASBRO INC: Faces Stockholders Class Action ------------------------------------------- Tonya Garcia, writing for MarketWatch, reports that Hasbro Inc. stock was downgraded to hold from strong buy at CFRA after a class-action lawsuit alleges executives deceived stockholders about the state of the business. "Members of retirement systems across the U.S. that bought shares of Hasbro have filed a class-action lawsuit against the toy-maker alleging that Hasbro deceived investors about the financial condition of the company and artificially boosted share prices, while the CEO and CFO sold $147 million in personal shares, according to several unconfirmed reports on November 30," CFRA wrote. Hasbro stock closed down 5.2% on Nov. 30. "[W]e see this lawsuit posing longer-term implications," wrote CFRA, which cut its price target to $98 from $108. Hasbro shares are down 1.7% in the Dec. 3 trading, and have fallen nearly 10% for the last three months. The S&P 500 index SPX, -1.54% is down 4% for the past three months. [GN] HAVEN'S KITCHEN: Faces Delacruz ADA Suit in S.D. New York --------------------------------------------------------- A class action lawsuit has been filed against Haven's Kitchen LLC. The lawsuit is captioned as Emanuel Delacruz and on behalf of all other persons similarly situated, the Plaintiff, vs. Haven's Kitchen LLC and Haven's Kitchen Home LLC, the Defendants, Case No. 1:18-cv-11318-KPF (S.D.N.Y., Dec. 5, 2018). The suit alleges Americans with Disabilities Act violation. The case is assigned to the Hon. Judge Katherine Polk Failla. The Defendants operate a cooking school.[BN] Attorneys for Plaintiff: Dana Lauren Gottlieb, Esq. GOTTLIEB & ASSOCIATES 150 East 18th Street, Suite PHR New York, NY 10003 Telephone: (917) 796-7437 Facsimile: (212) 982-6284 E-mail: danalgottlieb@aol.com HEALTH KOREA: Shin Sues over Misleading Advertising Scheme ---------------------------------------------------------- James Shin, on behalf of herself and ail other similarly situated, the Plaintiff, vs. Health Korea, individual and DOES 1-125, inclusive, the Defendants, Case No. 18STCV07225 (C.D. Cal., Dec. 5, 2018), seeks an order compelling the Defendant to (1) cease packaging, distributing, advertising and selling its health product massage in violation of U.S. FDA regulations and California consumer protection law; (2) re-label or recall all existing deceptively packaged Products; (3) conduct a corrective advertising campaign to fully inform California consumers; (4) award Plaintiff and Plaintiff family restitution, actual damages, and punitive damages; and (5) pay all costs of suit, expense, and attorney fees. Health Korea manufactures, packages, distributes, advertises, markets, and sells a variety of health products massage called Dr. Mouse (MSP). According to the complaint, the Products' labeling and advertising is false and misleading and the Products are misbranded.[BN] The Plaintiff appears pro se. HOMELAND SECURITY: Pending Motions Stricken without Prejudice ------------------------------------------------------------- In the class action lawsuit captioned as Margarito Castanon Nava, et al., the Plaintiff, vs. Department of Homeland Security, et al. Defendant, Case No. 1:18-cv-03757 (N.D Ill.), the Hon. Judge Rebecca R. Pallmeyer entered an order striking pending motions without prejudice, according to the docket entry made by the Clerk on December 18, 2018.[CC] According to a report by Ben Leonard, writing for NBC News, the class-action was filed against the U.S. Immigration and Customs Enforcement and the Department of Homeland Security on behalf of likely more than 100 people arrested and detained by ICE without warrants or an established flight risk in a seven-day period near Chicago. Four of the five plaintiffs named in the complaint do not have criminal records, according to the complaint. The NBC News report said Mr. Castanon, a construction worker, indicated he was heading home with a co-worker on the afternoon of Sunday, May 20, 2018, after finishing work, according to his declaration. A 17-year resident of the U.S. with no criminal record, Mr. Castanon, 42, was driving his truck through a Chicago suburb. Then, unmarked cars driven by officers in street clothes pulled him over. Although he first thought the officers were local police, Mr. Castanon later found out they were ICE agents. They didn't give Mr. Castanon or his passenger, also Latino, a reason for the stop and didn't have a warrant, according to his attorney. Another car pulled in 10 minutes later and Mr. Castanon observed officers in generic vests that said "POLICE." He and his passenger were arrested, but only told the arresting officers were ICE agents when they arrived at an immigration building. Attorneys for Margarito Castanon Nava and John Doe: Mark M. Fleming, Esq. Katherine Elizabeth Mello Goettel, Esq. NATIONAL IMMIGRANT JUSTICE CENTER 208 S. Lasalle Street, Suite 1300 Chicago, IL 60604 Telephone: (312) 660 1628 E-mail: mfleming@heartlandalliance.org kgoettel@heartlandalliance.org Attorneys for Defendants: Linda Y Cheng, Esq. Wisecup Lloyd Jason, Esq. U.S. DEPARTMENT OF JUSTICE, CIVIL DIVISION, OFFICE OF IMMIGRATION P.O. Box 878 Washington, DC 20044 Telephone: (202) 514-0500 E-mail: linda.cheng@usdoj.gov jason.wisecup2@usdoj.gov - and - Craig Arthur Oswald, Esq. AUSA - CHICAGO, UNITED STATES ATTORNEY'S OFFICE (NDIL-CHICAGO) 219 South Dearborn Street Chicago, IL 60604 E-mail: USAILN.ECFAUSA@usdoj.gov craig.oswald@usdoj.gov HOSPITALITY VENTURES: Bid for Class Certification Denied as Moot ---------------------------------------------------------------- In the class action lawsuit captioned as WAI MAN TOM on behalf of himself and all others similarly situated, the Plaintiff, vs. HOSPITALITY VENTURES LLC doing business as Umstead Hotel and Spa, SAS INSTITUTE INC., and NC CULINARY VENTURES LLC doing business as An Asian Cuisine, the Defendants, Case 5:17-cv-00098-FL (E.D.N.C.), the Hon. Judge Louise W. Flanagan entered an order on December 18, 2018: 1. granting the Defendants' motion for summary judgment with respect to plaintiff's federal law claims; 2. dismissing the Plaintiff's state law claims without prejudice pursuant to 28 U.S.C. section 1367(c); 3. denying as moot the Plaintiff's motion for conditional class certification, and the Plaintiff's motion to seal; 4. denying the Defendants' motion for hearing and directing clerk to close the case. The Court said, "Although defendants suggest that summary judgment on plaintiff's state law claims is required largely on the same grounds as the Fair Labor Standards Act claims, the scope of liability and relief under the North Carolina Wage and Hour Act is sharply contested by plaintiff. Neither party cites controlling Fourth Circuit or North Carolina law regarding the interpretation of the scope of the NCWHA in comparison to the FLSA. In this manner, declining jurisdiction is appropriate both due to dismissal of all federal claims as well as the novel issue of state law arising from interpretation of the NCWHA. See 28 U.S.C. section 1367(c). In these circumstances, the court declines in its discretion to exercise jurisdiction over the plaintiff's pendent state law claims, and such claims are dismissed without prejudice pursuant to 28 U.S.C. section 1367(c). Having determined that defendants' motion for summary judgment should be granted with respect to plaintiff's federal law claims and that plaintiff's state law claims shall be dismissed without prejudice pursuant to 28 U.S.C. section 1367(c), the plaintiff's motion for conditional and class certification is denied as moot."[CC] HUUUGE INC: Appeals Decision in Wilson Suit to 9th Circuit ---------------------------------------------------------- Defendant HUUUGE, Inc., filed an appeal from a court ruling in the lawsuit styled Sean Wilson v. HUUUGE, Inc., Case No. 3:18-cv-05276-RBL, in the U.S. District Court for the Western District of Washington, Tacoma. As reported in the Class Action Reporter on Dec. 5, 2018, Judge Ronald B. Leighton denied Huuuge's Motion to Compel Arbitration. The Plaintiffs filed their Complaint against Huuuge on April 6, 2018, alleging that Huuuge Casino constitutes illegal gambling in violation of RCW Section 4.24.070. Huuuge Casino is a game available as a mobile app and allows users to play gambling games with virtual "chips" that may be purchased in the app after users run out of the initial free allotment. Despite the fact that these chips cannot be redeemed for actual money, Wilson alleges that they are nonetheless valuable because they can be used to continue playing. Therefore, Wilson alleges that Huuuge's game amounts to gambling as defined by statute and that he is entitled to recover the money he lost playing. The appellate case is captioned as Sean Wilson v. HUUUGE, Inc., Case No. 18-36017, in the United States Court of Appeals for the Ninth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Appellant HUUUGE, Inc.'s opening brief is due on February 4, 2019; -- Appellee Sean Wilson's answering brief is due on March 6, 2019; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Plaintiff-Appellee SEAN WILSON, individually and on behalf of all others similarly situated, is represented by: Rafey S. Balabanian, Esq. EDELSON P.C. 350 N. LaSalle Street, Suite 1400 Chicago, IL 60654 Telephone: (312) 589-6370 E-mail: rbalabanian@edelson.com - and - Janissa A. Strabuk, Esq. TOUSLEY BRAIN STEPHENS PLLC 1700 Seventh Avenue, Suite 2200 Seattle, WA 98101 Telephone: (206) 682-5600 E-mail: jstrabuk@tousley.com Defendant-Appellant HUUUGE, INC., a Delaware corporation, is represented by: Jaime Drozd Allen, Esq. OGDEN MURPHY WALLACE PLLC 901 Fifth Avenue, Suite 3500 Seattle, WA 98164 Telephone: (206) 447-7000 E-mail: jaimeallen@dwt.com - and - Cyrus Earl Ansari, Esq. Stuart Russell Dunwoody, Esq. DAVIS WRIGHT TREMAINE LLP 920 Fifth Avenue, Suite 3300 Seattle, WA 98104-1610 Telephone: (206) 757-8353 E-mail: cyrusansari@dwt.com stuartdunwoody@dwt.com IDT TELECOM: Lainez Suit Seeks to Stop Unwanted Text Messages ------------------------------------------------------------- FIDENCIO LAINEZ, on behalf of himself and other persons similarly situated v. IDT TELECOM, INC. d/b/a BOSS REVOLUTION, Case No. 2:18-cv-12519 (E.D. La., December 5, 2018), seeks to stop the Defendant's alleged practice of making unauthorized and unwanted text message calls to the cellular telephones of consumers nationwide and to obtain redress for all persons injured by their conduct pursuant to Telephone Consumer Protection Act. IDT is a New Jersey-based for-profit corporation. IDT conducts business in Louisiana and throughout the United States. IDT is the company behind the popular, international telecommunications service Boss Revolution. Consumers use Boss Revolution's mobile phone application and pre-paid, rechargeable phone cards to make international calls.[BN] The Plaintiff is represented by: Roberto Luis Costales, Esq. William H. Beaumont, Esq. Jonathan Mille Kirkland, Esq. BEAUMONT COSTALES LLC 3801 Canal Street, Suite 207 New Orleans, LA Telephone: (504) 534-5005 E-mail: rlc@beaumontcostales.com whb@beaumontcostales.com jmk@beaumontcostales.com INNOVIS DATA: Consumers Sue Over Erroneous Credit Reports --------------------------------------------------------- William Perez, Jr., and Kelissa Ronquillo-Griffin, individually and on behalf of all others similarly situated, Plaintiffs, v. Innovis Data Solutions, Inc., Defendant, Case No. 3:18-cv-02801-L-MSB (S.D. Cal., December 13, 2018) is a complaint for damages, injunctive relief, and any other available legal or equitable remedies resulting from the illegal actions of Defendant with regard to Defendant's reporting of erroneous negative and derogatory reports to Plaintiffs' credit reports. The Defendant has erroneously reported continual monthly payment obligations on accounts that have been closed and paid in full, says the complaint. The Defendant has negligently and willfully failed to employ reasonable procedures -- including procedures readily available to them of which they are aware -- to ensure maximum possible accuracy of their credit reports. This willful and negligent failure to properly investigate the repeated disputes of Plaintiffs concerning the inaccurate data Defendant is reporting in consumers' credit files, and Defendant's failure to correct such, which Defendant knew or should have known was erroneous, caused Plaintiffs damages. For this reason, Plaintiffs seek damages arising out of the systematic issuance of erroneous credit reports by Defendant, says the complaint. Plaintiffs are "consumers" who reside in the County of San Diego, in the State of California. Defendant is a corporation incorporated under the laws of the State of Ohio and authorized to do business in the State of California. Defendant is regularly engaged in the practice of assembling and evaluating consumer credit information for the purpose of furnishing to third parties reports of consumers' credit histories, commonly referred to as "credit reports,".[BN] The Plaintiffs are represented by: Abbas Kazerounian, Esq. Matthew M. Loker, Esq. Elizabeth Wagner, Esq. KAZEROUNI LAW GROUP, APC 1303 East Grand Avenue, Ste. 101 Arroyo Grande, CA 93420 Phone: (800) 400-6808 Facsimile: (800) 520-5523 Email: ak@kazlg.com ml@kazlg.com elizabeth@kazlg.com - and - Joshua B. Swigart, Esq. HYDE & SWIGART 2221 Camino Del Rio South, Ste. 101 San Diego, CA 92108 Phone: (619) 233-7770 Facsimile: (619) 297-1022 Email: josh@westcoastlitigation.com J. FRED: Restaurant Not Fully Accessible to Disabled, Suit Claims ----------------------------------------------------------------- SPENCER NEAL, the Plaintiff, vs. THE J. FRED SCHMIDT PACKING COMPANY, the Defendant, Case No. 2:18-cv-01589-GCS-EPD (S.D. Ohio, Dec. 6, 2018), seeks injunctive relief, attorney's fees, litigation expenses, and costs pursuant to the Americans with Disabilities Act. According to the complaint, the Plaintiff is an individual with disabilities as defined by the ADA. Mr. Neal is paralyzed as a result of spina bifida and relies on a wheelchair to ambulate. Mr. Neal has visited the property on August 31, 2018, which forms the basis of this lawsuit. Mr. Neal will return to Defendant's restaurant, because he enjoys the German-style food there, if Defendant's restaurant is made fully accessible to a disabled person in a wheelchair, and to also avail himself of the restaurant's services. Furthermore, Mr. Neal intends to return to Defendant's restaurant as an ADA tester to ascertain whether Defendant removed the barriers to access which are the subject of this litigation. The Plaintiff has personally encountered architectural barriers at the subject property. The barriers to access at the property have denied him the full and equal access to the property, the lawsuit says. Fred J (trade name Schmidts Sausage Haus Rest) is in the German restaurant business.[BN] Attorney for Spencer Neal: Colin G. Meeker, Esq. BLAKEMORE, MEEKER & BOWLER CO., L.P.A. 495 Portage Lakes Dr. Akron, OH 44319 Telephone: (330) 253-3337 Facsimile: (330) 253-4131 E-mail: cgm@bmblaw.com JP ENVIRONMENTAL: Restaurant Staff Seeks Unpaid Overtime Premium ---------------------------------------------------------------- Leoncio Gumercindo Gomez Escobar and Carmen Rufino Gabriel Miranda, on behalf of themselves and all other plaintiffs similarly situated, known and unknown, v. J.P. Environmental Products Corporation and Fred S. Wang, Defendants, Case No. 18-cv-08005 (N.D. Ill., December 5, 2018), seeks redress for Defendants' failure to pay overtime compensation and unlawfully deducting thirty minutes from work hours each day for un-availed meal breaks pursuant to the Fair Labor Standards Act, the Illinois Minimum Wage Law, the Chicago Minimum Wage Ordinance and the Illinois Wage Payment and Collection Act. Defendants operate as Great Sea Chinese Restaurant located at 3253 West Lawrence Avenue in Chicago, Illinois, where Miranda and Escobar worked as a food preparers. Defendants failed to create, maintain, and preserve complete and accurate payroll records and did not pay Plaintiffs overtime premium for hours worked in excess of forty in any work week, the complaint asserts. [BN] Plaintiff is represented by: Timothy M. Nolan, Esq. Samuel D. Engelson, Esq. NOLAN LAW OFFICE 53 W. Jackson Blvd., Ste. 1137 Chicago, IL 60604 Tel (312) 322-1100 Fax (312) 322-1106 Email: tnolan@nolanwagelaw.com sengelson@nolanwagelaw.com JPMORGAN CHASE: Loses Bid to Dismiss Suit Over BBSW --------------------------------------------------- The United States District Court for the Southern District of New York issued an Opinion granting in part and denying in part Defendants' Motion to Dismiss the case captioned RICHARD DENNIS, et al., Plaintiffs v. JPMORGAN CHASE & CO., et al., Defendants. No. 16-cv-6496 (LAK). (S.D.N.Y.). The Plaintiffs allege that the defendants, in violation of the federal antitrust laws, entered into a series of agreements designed to create profit or limit liabilities amongst themselves by coordinating the manipulation of BBSW and the prices of BBSW-Based Derivatives, by conspiring to, inter alia: (1) engage in manipulative money market transactions during the BBSW Fixing Window (2) make false BBSW rate submissions that did not reflect actual transaction prices (3) uneconomically buy or sell money market instruments at a loss to cause artificial derivatives prices and (4) share proprietary BBSW-Based Derivatives information. BBSW is a benchmark interest rate, somewhat similar in concept to the London Interbank Offered Rate (LIBOR) in that it is used to price certain types of financial derivatives. Plaintiffs here, all of whom engaged in U.S.-based transactions for BBSW-based derivatives during the purported class period, bring claims under the Clayton Act, the Commodity Exchange Act (CEA), and the Racketeer Influenced and Corrupt Organizations Act (RICO Act). They sue as well on state law claims for unjust enrichment and breach of the implied covenant of good faith and fair dealing. The Defendants' motions to dismiss each are granted in part and denied in part, as follows: A. The motion to dismiss for lack of subject-matter jurisdiction and failure to state a claim is granted (except as to defendants JPMorgan Chase & Co. and JPMorgan Chase Bank, N.A.) to the following extent: (1) All claims brought by plaintiffs FrontPoint Financial Services Fund, L.P. and FrontPoint Financial Horizons Fund, L.P. are dismissed; (2) The Plaintiffs do not have class standing to assert claims for breach of the implied covenant of good faith and fair dealing or unjust enrichment on behalf of purported class members to the extent such class members traded in BBSW-based forward rate agreements and 90-day BAB futures; (3) The Commodity Exchange Act (CEA) claims brought by FrontPoint Asian Event Driven Fund, L.P. and Sonterra Capital Master Fund, Ltd. are dismissed; (4) The remaining CEA and Racketeer Influenced and Corrupt Organizations (RICO) Act claims are dismissed as to defendants Deutsche Bank AG, Royal Bank of Canada, RBC Capital Markets LLC, Lloyds Banking Group plc, Lloyds Bank plc, Macquarie Group Ltd., Macquarie Bank Ltd., Morgan Stanley, Morgan Stanley Australia Limited, ICAP plc, ICAP Australia Pty Ltd., Tullett Prebon plc, and Tullett Prebon (Australia) Pty Ltd. The Defendants argue that Sonterra and the FrontPoint Plaintiffs lack standing under the CEA on the basis that the pre-Dodd Frank CEA governs this case, not the current version of the statute. The CEA was amended by the Dodd-Frank Wall Street Reform and Consumer Protection Act, which became effective on July 21, 2011. Among other things, the amendment added swaps to the purview of Sections 6(c) and 22, quoted above. Prior to that amendment, the CEA excluded a sale of any cash commodity for deferred shipment or delivery from the term future delivery as well as agreements, contracts, and transactions in excluded commodities if the agreement, contract or transaction was (1) entered into by eligible contract participants and (2) not executed or traded on a trading facility. Even if the pre-Dodd Frank version of the CEA excluded such swaps and forwards, the amendments to the CEA enacted by Dodd Frank became effective before the changes AFMA made to the BBSW rate set process, which occurred just over two years later in September 2013. Accordingly, it is unclear whether all of the transactions allegedly entered into by the FrontPoint Plaintiffs and Sonterra would fall under the pre-Dodd Frank version of the CEA. Nonetheless, plaintiffs have waived their CEA claims in respect of BBSW-Based Derivatives other than CME Australian dollar futures contracts the derivatives in which Dennis transacted. Accordingly, Sonterra's and the FrontPoint Plaintiffs' claims under the CEA will be dismissed. A full-text copy of the District Court's November 26, 2018 Opinion is available at https://tinyurl.com/yadg4qd9 from Leagle.com. Richard Dennis, On behalf of themselves and all others similarly situated, FrontPoint Financial Services Fund, L.P., On behalf of themselves and all others similarly situated, FrontPoint Asian Event Driven Fund, L.P., On behalf of themselves and all others similarly situated, FrontPoint Financial Horizons Fund, L.P., On behalf of themselves and all others similarly situated & Sonterra Capital Master Fund, Ltd., On behalf of themselves and all others similarly situated, Plaintiffs, represented by Christian Levis -clevis@lowey.com -- Lowey Dannenberg P.C., Christopher Lovell -- CLovell@lshllp.com -- Lovell Stewart Halebian Jacobson LLP, Edward Y. Kroub -- Ekroub@lshllp.com -- Lovell Stewart Halebian Jacobson LLP, Geoffrey Milbank Horn -- ghorn@lowey.com -- Lowey Dannenberg P.C., Lee Jason Lefkowitz -- llefkowitz@lowey.com -- Lowey Dannenberg P.C.,Peter Dexter St. Phillip, Jr. -- pstphillip@lowey.com -- Lowey Dannenberg, P.C., Raymond Peter Girnys -- rgirnys@lowey.com -- Lowey Dannenberg, P.C., Roland Raymond St. Louis, III -- rstlouis@lowey.com -- Lowey Dannenberg P.C., Sitso W. Bediako -- sbediako@lowey.com -- Lowey Dannenberg P.C. & Vincent Briganti -- vbriganti@lowey.com -- Lowey Dannenberg P.C. JPMorgan Chase & Co. & JPMorgan Chase Bank, N.A., Defendants, represented by Paul Christopher Gluckow -- pgluckow@stblaw.com -- Simpson Thacher & Bartlett LLP, Abram Jeremy Ellis -aellis@stblaw.com -- Simpson Thacher & Bartlett LLP, Alan Craig Turner -- aturner@stblaw.com -- Simpson Thacher & Bartlett LLP, Alexander Nuo Li -- jiarui.li@stblaw.com -- Simpson Thacher & Bartlett LLP, Eamonn Wesley Campbell -- eamonn.campbell@stblaw.com -- Simpson Thacher & Bartlett LLP, Francis John Acott -- francis.acott@stblaw.com -- Simpson Thacher & Bartlett LLP, Jonathan Thomas Menitove -- jonathan.menitove@stblaw.com -- Simpson Thacher & Bartlett LLP, Mary Beth Forshaw -- mforshaw@stblaw.com -- Simpson Thacher & Bartlett LLP, Michael Steven Carnevale -- michael.carnevale@stblaw.com -- Simpson Thacher & Bartlett LLP, Rachel Serenity Sparks Bradley -- rachel.sparksbradley@stblaw.com -- Simpson Thacher & Bartlett LLP & Sarah Emily Phillips -- francis.acott@stblaw.com -- Simpson Thacher & Bartlett LLP. BNP Paribas, S.A., Defendant, represented by Jayant W. Tambe -- jtambe@jonesday.com -- Jones Day KISTLER FORD: K. Payne Suit Remains in Ohio District Court ---------------------------------------------------------- The United States District Court for the Northern District of Ohio, Western Division, issued a Memorandum Opinion and Order denying Plaintiffs' Motion to Remand in the case captioned Kellie Payne, Plaintiff, v. Kistler Ford, et al., Defendants. Case No. 3:18-cv-2451. (N.D. Ohio) Payne seeks to remand the case, arguing the removal was procedurally improper and that I also lack subject matter jurisdiction. Plaintiff Kellie Payne filed suit against Defendants Ford Motor Company and Kistler Ford (Ford) in the Lucas County, Ohio Court of Common Pleas. Ford removed the case to this Court pursuant to 28 U.S.C. Sections 1332, 1441, and 1446. Payne argues Ford did not remove the case within the 30-day timeline mandated by statute and that the Court lack subject matter jurisdiction because there is not complete diversity between plaintiffs and defendants. Ford argues I should deny Payne's motion for remand because the notice for removal met the minimal jurisdiction requirements in a class action and the notice was timely filed within 28 days of service. Ford, citing the Class Action Fairness Act (CAFA) and Miss. ex rel. Hood v. AU Optronics Corp.,argues jurisdiction is proper because this case meets the minimal diversity requirements, as the named plaintiff is a citizen of Ohio and one of the defendants is a Delaware corporation with its principal place of business in Michigan. Contrarily, Payne argues Hood is irrelevant because it is not factually similar to this case, as Hood involved a mass action claim and this claim is a class action. While Hood is not factually analogous to this case, the Supreme Court's discussion of the amendments to Section 1332 is relevant and reinforces the existence of jurisdiction and the appropriateness of removal. The Court in Hood differentiates the loosening of the diversity jurisdiction requirements in both mass actions and class actions and explicitly notes that the CAFA amendments to Section 1332 permit a class action to be removed when there are 100 or more named or unnamed persons falling within the definition of the proposed or certified class. Payne estimates the number of potential plaintiffs at no less than 1,000. Payne further argues Ford's notice of removal was untimely and therefore the case should be remanded to state court. A notice of removal of a civil action must be filed within 30 days after receipt by the defendant, through service or other means, of the pleading, motion, order, or other paper. Here, service on Ford was perfected on September 25, 2018, when it actually received the complaint and service of process. Ford filed its notice of removal on October 23, 2018, 28 days after its receipt of service. The plain language of the statute and its interpretation establishes removal was proper under Section 1446. Payne's motion for remand and her motion to strike Ford's motion to dismiss, are denied. A full-text copy of the District Court's November 26, 2018 Memorandum Opinion and Order is available at https://tinyurl.com/yatvtqka from Leagle.com. Kellie Payne, individually and on behalf of those individuals similarly situated, Plaintiff, represented by Michael D. Portnoy. Kistler Ford & Ford Motor Company, Defendants, represented by Brianna W. Stuart -- Brianna.Stuart@ThompsonHine.com -- Thompson Hine, Conor A. McLaughlin -- Conor.McLaughlin@ThompsonHine.com -- Thompson Hine & Elizabeth B. Wright -- Elizabeth.Wright@ThompsonHine.com -- Thompson Hine. KMPG LLP: Seyfarth Shaw Attorneys Discuss Class Action Ruling ------------------------------------------------------------- Christopher Cascino, Esq., and Gerald Maatman, Jr., Esq., of Seyfarth Shaw LLP, in an article for JDSupra, report that in a major end-of-the-year ruling, employers scored a significant victory in terms of the denial of class certification in a major gender discrimination case that has been closely watched by the media and the bar alike. It underscores the power of U.S. Supreme Court rulings as a bulwark for defending class action litigation. Introduction On November 30, 2018, Judge Lorna Schofield of the U.S. District Court for the Southern District Of New York denied certification of a proposed nationwide Title VII class action alleging discrimination on the basis of sex by KPMG. In the decision, Kassman v. KMPG LLP, No. 11 Civ. 3743 (S.D.N.Y. Nov. 30, 2018), the Court rejected Plaintiffs' argument that KPMG established a framework for managers to exercise their discretion in making compensation and promotion decisions that led to discrimination on the basis of sex. This case represents a significant win for employers as the Court rebuffed a novel attempt to create commonality out of discretionary decision-making after the Supreme Court's decision in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011). It also provides further guidance to employers about how to make pay and promotion decisions in a manner that avoids potential class action lawsuits. Case Background On June 2, 2011, Plaintiffs filed suit against KMPG, alleging that it discriminates against women in making pay and promotion decisions. Id. at 1. Shortly thereafter, the U.S. Supreme Court issued its landmark decision in Wal-Mart, which the Court characterized as "provid[ing] a roadmap to avoid class certification of a nationwide class asserting gender discrimination." Id. After the Supreme Court decided Wal-Mart, KPMG utilized a decentralized system for determining pay and promotions. Id. at 2. However, that decentralized system still had a structure. Id. Among other things, compensation decisions were made under the direction of a National Director of Compensation Strategies within a framework designed to pay KPMG employees at the appropriate market rate. Id. at 2, 5-6. Additionally, KPMG also conducted performance reviews within a framework containing standards for, among other things, years of experience necessary for particular promotions. Id. at 7-9. Plaintiffs argued that the framework within which KPMG made decentralized compensation and promotion decisions led to discrimination against women on both a disparate impact and disparate treatment basis. They moved for certification of a nationwide class, a New York State class, and a collective action. The Court's Decision The Court first analyzed Plaintiffs' disparate impact claim. Unsurprisingly, it began with an analysis of Wal-Mart. It observed that, under Wal-Mart, discretionary pay and promotion procedures can only satisfy the commonality requirement of Rule 23 if decision-makers operate under "a common mode of exercising discretion that pervades the entire company, such that individual discretionary decisions nonetheless produce a common answer to the question 'why was I disfavored.'" Id. at 35 (quotation marks omitted). The Court found that the appropriate way to analyze if such a common mode of exercising discretion was present is to analyze four factors, including: "(1) the nature of the purported class; (2) the process through which discretion is exercised; (3) the criteria governing the discretion and (4) the involvement of upper management." Id. at 36. Applying the first factor, the Court opined that the large size of the putative class -- at least 10,000 women -- and the fact it was located across the country weighed against a finding of a common mode of exercising discretion. Id. at 36-37. The Court observed that it is much more difficult for a common mode of exercising discretion to exist when decisions are being made by large numbers of decision-makers across the country. Id. at 37. Turning to the second factor, the Court considered whether the framework within which pay and promotion decisions were made weighed in favor of finding that a common mode of exercising discretion existed. The Court found that "KPMG's pay and promotion procedures act more as a framework that dictates who will make discretionary decisions rather than how they will exercise their discretion." Id. at 38. While finding that pay ranges were set at a company-wide level, the Court reasoned that the fact that compensation decisions were made within that range weighed against a finding that a common mode of exercising discretion existed. Id. The Court next analyzed whether the criteria governing the discretion weighed in favor of finding that a common mode of exercising discretion existed. Id. at 41. It observed that "whether a set of criteria creates a common mode of exercising discretion depends on the rigidity of the criteria. Subjective criteria, prone to different interpretations, generally do not provide common direction." Id. Finding that the criteria applied by KPMG, such as "'professionalism,' 'integrity,' 'reputation' and potential to be a 'partner candidate'" were "amorphous" and thus weighed against a finding that a common mode of exercising discretion existed. Id. at 42. Finally, the Court analyzed the fourth factor of "the involvement of top management in the discretionary decision-making." Id. The Court determined that Plaintiffs' argument that all pay and promotion decisions must ultimately be approved by two individuals unpersuasive because there was no evidence that these two individuals were doing anything other than approving aggregate promotion and pay numbers rather than at an individual level. Id. at 43. Accordingly, the Court noted that the fourth factor also weighed against a finding that a common mode of discretion existed. Id. With all four factors weighing against such a finding, the Court concluded that Plaintiffs had not established commonality and denied class certification of Plaintiffs' disparate impact claim. Id. at 43-44. Turning to Plaintiffs' disparate treatment claim, the Court held that Plaintiffs did not show that their statistical evidence demonstrated disparate treatment because Plaintiffs had not shown that promotion policies and practices were uniform across KPMG as required to make statistical evidence relevant under Wal-Mart. Id. at 46-47. The Court further found that Plaintiffs' argument that KPMG ignored evidence of gender discrimination did not comport with the record, and that their anecdotal evidence was insufficient to show intentional discrimination. Id. at 48-50. Accordingly, the Court denied certification of Plaintiffs' disparate treatment claim. Id. Finally, the Court denied certification of a New York state class because Plaintiffs did not provide any evidence of New York state-specific practices, and it denied certification of an Equal Pay Act collective action because Plaintiffs failed to prove the members of the putative collective action worked in a single establishment and that they were similarly-situated. Id. at 51-60. Conclusion This case represents a significant win for employers. After Wal-Mart, plaintiffs' lawyers have tried to develop new theories to secure certification of classes even where decisions are made in a decentralized manner. In Kassman, the Court not only rebuffed the latest such attempt, but also provided employers with additional ways to structure their pay and promotion policies to avoid potential class actions. [GN] LEADERS IN COMMUNITY: Court Narrows Claims in Edwards Suit ---------------------------------------------------------- In the case, WILLIAM EDWARDS, ROBERT JACKSON, JAMES BROOKS, and KYSER WILSON, individually and on behalf of others similarly situated, Plaintiffs, v. LEADERS IN COMMUNITY ALTERNATIVES, INC., SUPERCOM, INC., LINDA CONNELLY, DIANE HARRINGTON, KENT BOROWICK, RAELENE RIVAS, JEANETTE ARGUELLO-RAMOS, BELINDA DOE, DOES 1-10, inclusive, ALAMEDA COUNTY, and WENDY STILL, Defendants, Case No. C 18-04609 WHA (N.D. Cal.), Judge William Alsup of the U.S. District Court for the Northern District of California (i) granted the Alameda Defendants' motion to dismiss; and (ii) granted in part and denied in part the LCA Defendants' motion to dismiss. Defendant County of Alameda contracted with Defendant Leaders in Community Alternatives ("LCA") to provide an electronic-monitoring program, including GPS and alcohol monitoring, for criminal defendants on pre-trial or home detention. Defendant SuperCom was LCA's parent company. LCA executives and employees included Defendants Harrington (executive director), Connelly (founder, president and CEO), Borowick (CFO and COO), Rivas (case manager) and Arguello-Ramos (case manager). Under the contract between Alameda County and LCA, both the superior court and the probation department referred individuals to LCA's program. Once referred, LCA tracked the participants, providing the necessary equipment, and reported any non-compliance. Defendant Still, Alameda County's chief probation officer, oversaw Alameda County's contract with LCA. On average, 112 Alameda County residents participated in LCA's electronic monitoring on any given day. Plaintiffs Edwards, Jackson, Brooks, and Wilson were referred to LCA's program. LCA required the Plaintiffs to fill out an enrollment form which included, among other things, basic contact information, employment details, and information about their court case. Without conducting an inquiry into their ability to pay, LCA required the Plaintiffs to sign a Supervision Fee Agreement that imposed a $150 enrollment fee and a commitment to pay $25.50 per day. The Plaintiffs had to pay at least two weeks in advance by credit or debit card, money order, or cashier's check. They also agreed that failure to make timely payments could result in their termination from electronic monitoring. LCA's program was (and still is) fully funded by fees charged to participants. Neither Alameda County nor its probation department had any financial responsibility for the program. Although LCA's contract provided that LCA must adjust participant fees based on ability to pay, and although Section 1208.2(g) of the California Penal Code provided that persons cannot be removed from an electronic-monitoring program because of an inability to pay all or a portion of the program supervision fees, LCA did not inform the Plaintiffs that they only needed to pay what they could afford. Nor did LCA inform them of their right to have a judge determine how much they can afford to pay while on LCA's monitoring programs. LCA also imposed a series of "roadblocks" to keep individuals from obtaining a reduced fee. Based on these allegations, the Plaintiffs filed the putative class action in July 2018, asserting a RICO claim, claims under Section 1983 of Title 42 of the United States Code, and a claim for abuse of process. In addition to monetary damages, the Plaintiffs seek an order enjoining the Defendants' illegal fee extortion scheme. The Defendants now move to dismiss the complaint in its entirety. Judge Alsup holds that to the extent the Plaintiffs argue that they may seek injunctive relief on behalf of the putative class even if they themselves lack standing, they are incorrect. The Plaintiffs' conclusory allegation that only individuals with relatively short sentences may be booked into LCA's program, resulting in supervision durations that are capable of repetition but evading review, is insufficient to invoke Gerstein v. Pugh's exception. Accordingly, the Judge granted the Defendants' motions to dismiss the Plaintiffs' claims for injunctive relief. The order needs not reach the Defendants' alternative argument that the Plaintiffs' claims for injunctive relief are moot in light of recent changes to LCA's policies. Next, the Defendants argue that by seeking relief related to the conditions of their probation, the Plaintiffs' claims involve state court criminal sentencing and probation proceedings. The Judge explains that Younger v. Harris requires federal courts to abstain from exercising jurisdiction where (1) a state-initiated proceeding is ongoing; (2) the proceeding implicates important state interests; (3) the federal plaintiff is not barred from litigating federal constitutional issues in the state proceeding; and (4) the federal court action would enjoin the proceeding or have the practical effect of doing so, i.e., would interfere with the state proceeding in a way that Younger disapproves. All four elements of Younger must be present in order for abstention to be appropriate. Judge Alsup holds that the first factor of Younger abstention does not apply. Because the Plaintiffs' probationary status does not amount to ongoing state judicial proceedings for Younger purposes, abstention is not warranted. Moreover, the Defendants do not contend that the Plaintiffs or the Defendants ever initiated such proceedings. The Defendants' motion to dismiss on this ground is denied. As to the constitutional claims, among other things, the Judge finds that (i) the complaint fails to allege facts plausibly suggesting that Alameda County violated the Equal Protection Clause; (ii) the complaint fails to show a causal connection between Probation Chief Still's conduct and any constitutional violation; (iii) the Plaintiffs have failed to state a cognizable claim for a violation of their due process or equal protection rights; (iv) because the Plaintiffs have failed to allege facts showing a specific intent to defraud, they have failed to allege that the Defendants engaged in wire fraud; and (v) because the Plaintiffs have failed to allege facts showing that the reports were filed to scare program participants into paying LCA's fees, they have not alleged a claim for abuse of process. For the foregoing reasons, Judge Alsup granted the Alameda Defendants' motion is GRANTED, and granted in part and denied in part the LCA Defendants' motion. The order sustained the Plaintiffs' RICO claim against LCA. All other claims are dismissed. Under no circumstances should the Order be construed as interfering with the conditions of release imposed by Alameda County or the conditions of release imposed by LCA. In sustaining the Plaintiffs' RICO claim against LCA, the Order does not suggest that Edwards should be released from pre-trial detention. Nor does it bless the Plaintiffs' various allegations regarding the inconveniences associated with electronic monitoring or LCA's restrictions on individuals' use of alcohol or medical marijuana. by Jna. 4, 2019 at noon, the Plaintiffs may seek leave to amend the dismissed claims by a motion noticed on the normal 35-day calendar. The Plaintiffs must plead their best case. Their motion should affirmatively demonstrate how the proposed amended complaint corrects the deficiencies identified in the Order, as well as any others raised in the Defendants' motions but not addressed. The motion should be accompanied by a redlined copy of the proposed amended complaint. A full-text copy of the Court's Dec. 14, 2018 Order is available at https://is.gd/qulAqn from Leagle.com. William Edwards, on behalf of himself and others similarly situated, Robert Jackson, on behalf of himself and others similarly situated, James Brooks, on behalf of himself and others similarly situated & Kyser Wilson, on behalf of himself and others similarly situated, Plaintiffs, represented by Phil Telfeyan -- ptelfeyan@equaljusticeunderlaw.org -- Equal Justice Under Law. Leaders in Community Alternatives, Inc., Supercom, Inc., Linda Connelly, Diane Harrington, Kent Borowick, Raelene Rivas & Jeanette Arguello-Ramos, Defendants, represented by Kristina Doan Strottman -- kstrottman@bwslaw.com -- & Susan Eileen Coleman -- scoleman@bwslaw.com -- Burke, Williams & Sorensen LLP. Alameda County & Wendy Still, Defendants, represented by Kevin E. Gilbert , Orbach, Huff, Suarez & Henderson, Susan Eileen Coleman, Burke, Williams & Sorensen LLP & Kristina Doan Strottman -- kgilbert@ohshlaw.com. MAINE: Court Dismisses Gladu Class Allegations ---------------------------------------------- The United States District Court for the District of Maine issued an Order granting Plaintiff's Motion to Amend Complaint the case captioned NICHOLAS A. GLADU, Plaintiff v. JOSEPH FITZPATRICK, et al., Defendants. No. 1:18-cv-00274-GZS. (D. Me.). The Court have reviewed and considered the Magistrate Judge's Recommended Decision and the Supplemental Recommended Decision, together with the entire record; the Court have made a de novo determination of all matters adjudicated by the Magistrate Judge's Recommended Decision and the Supplemental Recommended Decision; and the Court concurs with the recommendations of the United States Magistrate Judge for the reasons set forth in his Recommended Decision and Supplemental Recommended Decision, and determine that no further proceeding is necessary. It is ordered that the Recommended Decisions of the Magistrate Judge are affirmed and the Plaintiff's Motion to Amend Complaint is granted. The Plaintiff's class action allegations are dismissed, and the Plaintiff's claims against Defendants Fitzpatrick, Thornell, Liberty, Ross, Cassese, and Burns are dismissed. A full-text copy of the District Court's November 26, 2018 Order is available at https://tinyurl.com/yayy23qg from Leagle.com. NICHOLAS A GLADU, and Others Similarly Situated, Plaintiff, pro se. MARRIOTT INT'L: DiCello Levitt Files Data Breach Class Action ------------------------------------------------------------- Marriott International Inc. (NASDAQ: MAR), the parent company of Starwood Hotels, failed to ensure that the personal information of as many as 500 million customers was adequately protected, leading to a massive, long-running data breach that may have lasted more than four years, according to a new nationwide class action lawsuit. The suit, filed by Adam Levitt and Amy Keller, partners at prominent national law firm DiCello Levitt & Casey, alleges that Starwood, and later Marriott, took more than four years to discover the breach and then failed to notify its customers in a timely manner. Marriott became the world's largest hotel chain when it completed an acquisition of Starwood in 2016. Beginning in 2014 and possibly earlier, and continuing through November 2018, hackers exploited vulnerabilities in Starwood's network to access the guest reservation system and steal customer data. Marriott discovered the breach on September 8, 2018 but failed to publicly disclose it until nearly three months later, on November 30, 2018, when it admitted that there had been unauthorized access to the Starwood guest reservation database. This database contained personally identifiable customer information, including names, mailing addresses, phone numbers, email addresses, passport numbers, Starwood Preferred Guest (SPG) account information, date 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. Starwood currently maintains a separate reservation system from other Marriott-branded hotels, though the company reportedly has plans to merge them at a later date. "It is particularly egregious that Marriott did not discover this serious data breach during the course of its due diligence efforts in conjunction with its 2016 Starwood acquisition," said Ms. Keller, who also serves as co-lead counsel in the nationwide class action against Equifax related to its 2017 data breach. "Marriott seems to forget that part of being in the customer service business includes actually taking care of its customers. Through this lawsuit, we intend to ensure that it never forgets that again." The lead plaintiffs in the class action are two longtime members of Starwood's (and now Marriott's) customer loyalty program, Illinois resident Peter Tapling and California resident David Sparks. Mr. Tapling, a loyalty program member for more than 31 years, was notified by email on November 30, 2018, that his information was compromised by the data breach. Mr. Sparks is still awaiting notification from Marriott that his information was compromised but based on public information and other information available only to him, he believes that his information has also been detrimentally affected. As a result, both Plaintiffs have been forced to take measures that otherwise would not have been necessary to ensure that their identities are not stolen and that their financial accounts are not compromised. "It is not surprising that a company which took more than four years to even recognize its systems were being breached, has also demonstrated that it was unprepared to properly execute a post-breach response plan," said Mr. Levitt, one of the firm's co-founding partners. Ms. Keller agreed, noting, "Marriott's dedicated website and call center for data breach inquiries appears woefully inadequate given the huge number of affected customers. Customers are experiencing long wait times, and the lack of information about who was affected and how has left guests confused and concerned. Moreover, Marriott's offer to its customers of one year's free enrollment in Web Watcher is deficient. Web Watcher is not a credit monitoring service. It merely keeps an eye on sites where thieves may sell or swap personal information. Hackers are likely well aware of Marriott's one-year offer and will, therefore, wait for that period to expire before exploiting the stolen data." The complaint, filed in U.S. District Court for the District of Maryland, Southern Division, is Peter Tapling and David Sparks v. Marriott International Inc., Case No. 8:18-cv-3703. DiCello Levitt & Casey filed this case with Andrew Friedman of Cohen Milstein and James Pizzirusso of Hausfeld, both of whom are also members of the Equifax executive committee. A copy of the complaint is available upon request. If you believe that you have been affected by the Marriott data breach, attorneys at DiCello Levitt & Casey are happy to speak with you about the ongoing litigation and how to protect your rights. Learn more about the case on the firm's website, or call (440) 953-8888 to speak with one of our attorneys. DiCello Levitt & Casey has significant experience seeking justice for plaintiffs in data breach and related technology litigation. From Mr. Levitt's filing of the very first Internet privacy cases in the United States in 1999, to Ms. Keller's Equifax leadership appointment earlier this year, the firm's attorneys have long been at the forefront of this type of litigation and have been responsible for some of the key jurisprudence in this field. About DiCello Levitt & Casey DiCello Levitt & Casey focuses on commercial litigation, class action litigation, mass tort litigation, catastrophic injury litigation, labor and employment litigation, and civil rights litigation. It is practices nationwide -- and internationally -- from offices in Chicago and Cleveland. [GN] MARRIOTT INT'L: Hiteshew Seeks Authority to File Class Suit ----------------------------------------------------------- In the lawsuit captioned as DONNA HITESHEW, individually and on behalf of all others similarly situated, the Plaintiff, vs. MARRIOTT INTERNATIONAL, INC., a Delaware corporation, and STARWOOD HOTELS & RESORTS WORLDWIDE, LLC, a Maryland limited liability company, the Defendants, Case No. 8:18-cv-03755-PWG (D. Md., Dec. 6, 2018), the Plaintiff asks the Court for an Order permitting her to temporarily file her Class Action Complaint, which will reveal, reference and/or otherwise discuss: -- sensitive, protected, and confidential information and documents regarding Defendants Marriott International, Inc. and Starwood Hotels & Resorts Worldwide, LLC, their business practices, and potentially, their customers, and -- the specific vulnerabilities with Defendants' computer systems which allows that information and documents to be publicly available, in partially redacted format. Specifically, Plaintiff's Class Action Complaint details, in part, how, following Marriott's November 30, 2018 data breach announcement, its computer systems still fail to properly protect sensitive and confidential information, which could potentially cause further harm Plaintiff and the members of the putative Classes.[BN] Plaintiff's Attorneys: Jeffery M. Mervis, Esq. THE MERVIS LAW FIRM , LLC 12505 Park Potomac Avenue, 6th Floor Potomac, MD 20854 Telephone: 301 762 0020 E-mail: jmervis@mervislaw.com - and - Rafey S. Balabanian, Esq. Eve-Lynn Rapp, Esq. Jay Edelson, Esq. Benjamin H. Richman, Esq. Christopher L. Dore, Esq. David I. Mindell, Esq. EDELSON PC 123 Townsend Street, Suite 100 San Francisco, CA 94107 Telephone: 415.212.9300 Facsimile: 415.373.9435 E-mail: rbalabanian@edelson.com erapp@edelson.com jedelson@edelson.com brichman@edelson.com cdore@edelson.com dmindell@edelson.com MARRIOTT INT'L: Jan. 30 Lead Plaintiff Motion Deadline Set ---------------------------------------------------------- Bronstein, Gewirtz & Grossman, LLC notifies investors that a class action lawsuit has been filed against Marriott International, Inc. ("Marriott" or the "Company") (NASDAQ: MAR) and certain of its officers, on behalf of shareholders who purchased or otherwise acquired Marriott securities between November 9, 2016 and November 29, 2018, inclusive (the "Class Period"). Such investors are encouraged to join this case by visiting the firm's site: bgandg.com/mar. This class action seeks to recover damages against Defendants for alleged violations of the federal securities laws under the Securities Exchange Act of 1934. The Complaint alleges that throughout the Class Period, Defendants made materially false and/or misleading statements and/or failed to disclose that: (1) Marriott's and Starwood's systems storing their customers' personal data were not secure; (2) there had been unauthorized access on Starwood's network since 2014; (3) consequently, the personal data of approximately 500 million Starwood guests and sensitive personal information of approximately 327 million of those guests may have been exposed to unauthorized parties; and (4) as a result, Marriott's public statements were materially false and/or misleading at all relevant times. On November 30, 2018, Marriott disclosed the discovery of "a data security incident involving [its] Starwood guest reservation database" and "that an unauthorized party had copied and encrypted information, and took steps towards removing it." Marriott stated that "information on up to approximately 500 million guests" had been subject to unauthorized access since 2014. Following this news, Marriott's stock price fell sharply during intraday trading on November 30, 2018. A class action lawsuit has already been filed. If you wish to review a copy of the Complaint you can visit the firm's site: bgandg.com/mar or you may contact Peretz Bronstein, Esq. or his Investor Relations Analyst, Yael Hurwitz of Bronstein, Gewirtz & Grossman, LLC at 212-697-6484. If you suffered a loss in Marriott you have until January 30, 2019 to request that the Court appoint you as lead plaintiff. Your ability to share in any recovery doesn't require that you serve as a lead plaintiff. Bronstein, Gewirtz & Grossman, LLC is a corporate litigation boutique. Its primary expertise is the aggressive pursuit of litigation claims on behalf of our clients. In addition to representing institutions and other investor plaintiffs in class action security litigation, the firm's expertise includes general corporate and commercial litigation, as well as securities arbitration. [GN] MARRIOTT INTERNATIONAL: Dorfman Sues Over Data Breach ----------------------------------------------------- Robert Dorfman, individually, and on behalf of all others similarly situated, Plaintiff, v. Marriott International, Inc., Defendant, Case No. 18-cv-01982 (D. Conn., December 5, 2018), seeks actual, statutory, punitive, exemplary and/or multiple damages, disgorgement, restitution, preliminary or other equitable or declaratory relief, prejudgment and post-judgment interest, reasonable attorneys' fees, costs and expenses and such other and favorable relief resulting from negligence and for violation of the Unfair Competition Law of the California Business and Professions Code. Marriott's Starwood guest reservation database suffered a massive security breach that began in or around 2014, compromising personal and financial information belonging to up to 500 million customers. Marriott operates Starwood Hotels and Resorts Worldwide. Dorfman is a Marriott customer who used the Starwood reservation system. [BN] Plaintiff is represented by: Joseph P. Guglielmo, Esq. SCOTT+SCOTT, ATTORNEYS AT LAW, LLP The Chrysler Building 405 Lexington Avenue, 40th Floor New York, NY 10174 Telephone: (212) 223-6444 Facsimile: (212) 223-6334 Email: jguglielmo@scott-scott.com - and - Erin Green Comite, Esq. SCOTT+SCOTT ATTORNEYS AT LAW LLP 156 South Main Street P.O. Box 192 Colchester, CT 06415 Telephone: (860) 537-5537 Facsimile: (860) 537-4432 Email: ecomite@scott-scott.com - and - Hal Cunningham, Esq. SCOTT+SCOTT ATTORNEYS AT LAW LLP 600 W. Broadway, Suite 3300 San Diego, CA 92101 Telephone: (619) 233-4565 Facsimile: (619) 233-0508 Email: hcunningham@scott-scott.com - and - Gary F. Lynch, Esq. Jamisen A. Etzel, Esq. CARLSON LYNCH SWEET KILPELA & CARPENTER, LLP 1133 Penn Avenue, 5th Floor Pittsburgh, PA 15222 Tel: (412) 322-9243 Email: glynch@carlsonlynch.com jetzel@carlsonlynch.com - and - Karen Hanson Riebel, Esq. Katie M. Baxter-Kauf, Esq. Arielle Wagner, Esq. LOCKRIDGE GRINDAL NAUEN P.L.L.P. 100 Washington Ave. South, Suite 2200 Minneapolis, MN 55401 Email: khriebel@locklaw.com kmbaxter-kauf@locklaw.com aswagner@locklaw.com - and - Bryan L. Bleichner, Esq. CHESTNUT CAMBRONNE PA 17 Washington Avenue North, Suite 300 Minneapolis, MN 55401 Telephone: (612) 339-7300 Email: bbleichner@chestnutcambronne.com MARRIOTT INTERNATIONAL: Faces Kimmel Suit Over Data Breach ---------------------------------------------------------- DAVID J. KIMMEL, MICHAEL C. CHRISTNER, and THOMAS STABILE, Individually and on Behalf of a Class of All Others Similarly Situated v. MARRIOTT INTERNATIONAL, INC., and STARWOOD HOTELS & RESORTS WORLDWIDE LLC, Case No. 3:18-cv-01983-KAD (D. Conn., December 5, 2018), arises from a data breach that occurred between at least 2014 and September 2018. The Plaintiffs bring this class action on behalf of persons, who have suffered, and continue to suffer, financial losses and increased data security risks that are a direct result of the Defendants' alleged egregious failure to safeguard their customers' highly sensitive personally identifiable information ("PII"), including names, mailing addresses, phone numbers, email addresses, passport numbers, preferred guest account information, date of birth, gender, arrival and departure information, reservation dates and communication preferences, and payment card data ("Payment Card Data"), including credit and debit card numbers, primary account numbers, card verification value numbers, expiration dates, and zip codes. The breach impacted Defendant Starwood's guest database and affected persons, who made reservations at any of Marriott's Starwood properties, says the complaint. Marriott International, Inc., is a publicly traded corporation with its principal place of business located in Bethesda, Maryland. Starwood Hotels & Resorts Worldwide, LLC, is an indirect, wholly-owned subsidiary of Marriott. Founded in 1927, Marriott is the largest hotel chain in the world. Owning more than 6,500 properties in 127 countries and territories, Marriott had $22.894 billion in revenue in 2017.[BN] The Plaintiffs are represented by: Joseph P. Guglielmo, Esq. SCOTT+SCOTT ATTORNEYS AT LAW LLP The Helmsley Building 230 Park Ave., 17th Floor New York, NY 10169 Telephone: (212) 223-6444 Facsimile: (212) 223-6334 E-mail: jguglielmo@scott-scott.com - and - Erin Green Comite, Esq. SCOTT+SCOTT ATTORNEYS AT LAW LLP 156 South Main Street P.O. Box 192 Colchester, CT 06415 Telephone: (860) 537-5537 Facsimile: (860) 537-4432 E-mail: ecomite@scott-scott.com - and - Hal Cunningham, Esq. SCOTT+SCOTT ATTORNEYS AT LAW LLP 600 W. Broadway, Suite 3300 San Diego, CA 92101 Telephone: (619) 233-4565 Facsimile: (619) 233-0508 E-mail: hcunningham@scott-scott.com - and - Alfred G. Yates, Jr., Esq. Gerald L. Rutledge, Esq. LAW OFFICE OFALFRED G. YATES, JR., P.C. 300 Mt. Lebanon Boulevard, Suite 206-B Pittsburgh, PA 15234 Telephone: (412) 391-5164 Facsimile: (412) 471-1033 E-mail: yateslaw@aol.com glr1@aol.com - and - Greg L. Davis, Esq. DAVIS & TALIAFERRO LLC 7031 Halcyon Park Drive Montgomery, AL 36117 Telephone: (334) 832-9080 E-mail: gldavis@knology.net MOM'S BODY: Lara Mertens Seeks Payment of Past Wages ---------------------------------------------------- LARA MERTENS, as an individual, the Plaintiff, vs DAVID GROESCHEL an individual dba MOM's BODY SHOP, and DOES 1-10, the Defendants, Case No. CGC-18-571882 (Cal. Super. Ct., Dec. 6, 2018), seeks payment of past wages owed and any other penalties permitted by law, including penalties pursuant to the California Labor Code sections and penalties under Private Attorneys General Act of 2004. According to the complaint, Groeschel intentionally misclassified his tattoo artists and body piercers, including the Plaintiff, as independent contractors in violation of the California Labor Code and subsequently withheld their wages, denied them wage statements, denied them meal and rest breaks, failed to pay overtime or minimum wage, failed to pay for sick days, withheld gratuities, failed to keep payroll records, failed to provide them workers with written commission agreements, failed to failed to indemnify them for necessary work expenditures, and engaged in unfair business practices, the lawsuit says.[BN] Attorneys for Plaintiff: Sil Liapis, Esq. OPEN DOOR LEGAL 4634 3rd Street San Francisco, CA 94124 Telephone: (415) 610-5991 E-mail: sil@opendoorlegal.org - and - Alison Kosinski, Esq. Emily Thiagaraj, Esq. KOSINSKI + THIAGARAJ, LLP 201 Filbert Street, Suite 201 San Francisco, CA 94133 Telephone: (415) 230 2860 Facsimile: (415) 723 7099 E-mail: emily@ktlawsf.com MONINI NORTH: Truffle Oil Class Action Dismissal Affirmed --------------------------------------------------------- Perry Cooper, writing for BloombergLaw, reports that a consumer class action alleging Monini North America Inc. truffle oil doesn't contain truffles was properly dismissed, the Second Circuit held Dec. 3. "It is simply not plausible that a significant portion of the general consuming public acting reasonably would conclude that Monini's mass produced, modestly-priced olive oil was made with the most expensive food in the world," the U.S. Court of Appeals for the Second Circuit said in a summary order. The ingredient list on the bottle doesn't mention the word "truffle" and the primary label describes the product as "Truffle Flavored," the court found. Plaintiffs Vinay Jessani and Wendy Burnett must do more than allege that a label might conceivably be misunderstood by a few consumers, the court said. Judges Robert A. Katzmann, Amalya L. Kearse, and Denny Chin served on the panel. Bursor & Fisher P.A. represented the consumers. Proskauer Rose LLP represented Monini. The case is Jessani v. Monini N.A., Inc., 2018 BL 443642, 2d Cir., No. 17-2504, summary order 12/3/18. [GN] MORGAN STANLEY: Motion to Dismiss Discrimination Case Granted ------------------------------------------------------------- Jed Horowitz and Mason Braswell, writing for AdvisorHub, reports that a federal judge in New York City has granted Morgan Stanley's motion to dismiss a purported class-action lawsuit alleging discrimination in the way the firm allocated accounts to African Americans and women. U.S. Circuit Judge Richard Sullivan acknowledged the "potentially-far-reaching consequences" for African Americans of the 'serious" allegations, but ruled that three of the seven named plaintiffs in "Kathy Frazier et al versus Morgan Stanley" are required by their employment contracts to bring individual claims in arbitration rather than in court. Class-action claims are not allowed in arbitration under Financial Industry Regulatory Authority rules. The four other named plaintiffs "failed to overcome the stringent administrative" processes required for civil rights claims, or argued insufficient facts, he ruled. The 24-page decision, which was dated November 29, is a victory for brokerage firms that generally favor arbitration over courts, and, particularly, for Morgan Stanley. The firm has won a series of recent decisions dismissing employees' claims that they were not adequately notified in May 2015 of ways to opt out of its tightened CARE arbitration program, making arbitration mandatory. However, the defendants continue to argue their individual race discrimination claims in the New York court, and Morgan Stanley on December 17 filed an answer to their third amended complaint denying the remaining discrimination claims. "The most prominent feature [of the decision] is the arbitration issue, which is again a clear signal that Morgan Stanley prefers to divide and conquer and rely on arbitration as a means to silence class members and evade litigation," said Linda Stowell, the Chicago lawyer who co-represented the plaintiffs and has has long represented women and minorities in discrimination suits against broker-dealers. Since the case was briefed, five courts have rejected arguments by defendants that Morgan Stanley gave insufficient notice of changes in its arbitration requirements, the judge said. "The court reached the right result here, and we look forward to adjudicating the remaining claims on their specific facts," Morgan Stanley spokeswoman Susan Siering wrote in an email. "Morgan Stanley is strongly committed to attracting, retaining and developing diverse talent and takes complaints of discrimination very seriously." Frazier, who worked in Morgan Stanley's Honolulu, Hawaii, office from 2007 until she resigned in November 2013, before the arbitration program was tightened, alleged that "lucrative accounts were routinely 'steered' to male, non-African American FA" and said her complaints of discrimination led to hostility, poaching of her clients and continued exclusion, according to the ruling. An amended complaint in the case included "near-verbatim, boilerplate accounts" of the six other plaintiffs' experiences in Morgan Stanley offices in seven cities. The judge concluded that the facts presented "do not support an inference of a pattern or practice of discriminatory treatment" and "fall short of support for the inference that intentional discrimination was…standard operating procedure'" for Morgan Stanley. Friedman said on Dec. 3 that she was still reviewing the decision and had not decided whether to proceed with a possible appeal, re-filing or arbitration to invalidate Morgan Stanley's modified CARE program. [GN] NASSAU COUNTY, NY: Court Denies Bid to Dismiss Gurrieri FLSA Suit ----------------------------------------------------------------- In the case, RONALD GURRIERI, DIANE McCAULEY, LAWRENCE LOISELLE, MARY TEDESCO, EDWARD DONOGHUE, and all others similarly situated, Plaintiffs, v. COUNTY OF NASSAU, NASSAU COUNTY POLICE DEPARTMENT, NASSAU COUNTY CIVIL SERVICE COMMISSION, Defendants, Case No. 2:16-cv-6983 (ADS)(SIL)(E.D. N.Y.), Judge Arthur D. Spatt of the U.S. District Court for the Eastern District of New York denied (i) the Plaintiffs' motion for reconsideration of the Court's Aug. 9, 2017 Order, limiting overtime compensation to hours worked in excess of 40 hours; (ii) the Defendants' motion pursuant to Federal Rule of Civil Procedure ("FED. R. CIV. P." or "Rule") 12(b)(6) to dismiss the complaint; (iii) the Plaintiffs' for sanctions under Rule 11; and (iv) the Defendants' motion to strike statements made by the Plaintiffs in their reply brief in support of sanctions. Plaintiffs Gurrieri, McCauley, Loiselle, Tedesco, and Donoghue commenced the putative class action on behalf of themselves and others similarly situated against the Defendants County of Nassau, the Nassau County Police Department ("NCPD"), and the Nassau County Civil Service Commission ("NCCSC"), alleging that the Defendants violated the Fair Labor Standards Act ("FLSA"), and the New York Labor Law ("NYLL") by failing to pay them overtime. On Aug. 9, 2017, the Court granted a motion by the Defendants to dismiss the Plaintiffs' state law claims for failure to serve a timely notice of claim. In the Order, the Court granted the Plaintiffs leave to commence an action in New York State court to obtain post hoc permission by a court of competent jurisdiction to file a late notice of claims. On Aug. 11, 2017, the Court stayed the action pending the outcome of the state court action. On Aug. 16, 2017, the Plaintiffs filed a motion to reconsider arguing, inter alia, that the Order contained a clear error of law with respect to purported gap-time claims raised in the Complaint. The Defendants opposed the motion on Sept. 13, 2017, ECF 29, and the Plaintiffs replied on Sept. 18, 2017. The Court held its consideration of the motion in abeyance pending the resolution of the state court action. On Aug. 21, 2017, the Plaintiffs filed an Article 78 Petition in the New York State Supreme Court for Nassau County. On April 9, 2018, Justice Anthony L. Parga granted the Plaintiffs' petition, and deemed the Plaintiffs' notice of claim to be timely filed nunc pro tunc. On May 7, 2018, the Court lifted the stay and restored the Plaintiffs' NYLL claims. On June 4, 2018, the Plaintiffs filed an Amended Complaint reflecting, among other things, the state court decision deeming their notice of claim timely filed. On June 1, 2018 and June 13, 2018, the Plaintiffs submitted to examinations in accordance with Section 50-h of the New York General Municipal Law ("N.Y.Gen.Mun.Law"). On July, 3, 2018, the Defendants moved to dismiss the Amended Complaint, claiming that it is clear from the examination transcripts obtained during those 50-h examinations that the Plaintiffs are subject to an FLSA exemption known as the 207(k) exemption. On July 12, 2018, the Plaintiffs opposed the motion to dismiss, and cross-moved for sanctions under Rule 11(b) on the ground that the motion to dismiss was frivolous. On Aug. 3, 2018, the Defendants replied to the opposition to the motion to dismiss and opposed the motion for sanctions. On Aug. 8, 2018, the Court granted the Plaintiffs leave to submit a 15-page reply brief, rather than the customary 10 pages, to account for the length of the Defendants' combined reply and opposition. That same day, the Defendants moved to vacate the order, warning the Court that the Plaintiffs intended to use the excess pages to raise new arguments. On Aug. 9, 2018, the Court denied the motion, and instructed the Plaintiffs not to include any arguments in their reply that could have been raised in their opposition brief or initial motion for sanctions. That same day, the Plaintiffs filed their reply memorandum. The next day, the Defendants moved to strike portions of the reply, accusing the Plaintiffs of abusing their reply by using it to submit a second opposition to the motion to dismiss. On Aug. 10, 2018, the Plaintiffs responded. As to the Plaintiffs' motion for reconsideration, Judge Spatt disagreed with the Plaintiffs' claim that the Order made a clear error of law by dismissing their gap-time claims under the NYLL. At no point in time did the Plaintiffs make a claim for gap-time or otherwise assert unpaid straight time. Their suggestion otherwise strain credulity, the Judge finds. As support for their claim, they cite two stranded statements in the Complaint. The first statement relates to the calculation of the alleged unpaid overtime rate. The latter statement relates to the failure to pay overtime compensation as required by the FLSA. Similarly, the Plaintiffs' opposition to the motion to dismiss argues that it is clear that the Plaintiffs are entitled to overtime compensation for hours worked in excess of 36 hours per week under the NYLL. He says the Plaintiffs' recharacterization of these statements as claims and arguments for gap-time pay are an attempt to present the case under new theories. Therefore, he denies the motion for reconsideration. Next, as to the Defendants' motion pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss the complaint, the Judge also denies it. The Defendants contend that the Court should consider the 50-h transcripts and dismiss the Plaintiffs' claims on the ground that the transcripts prove the Section 207(k) exemption applies. Contrary to the Defendants' suggestion, the great weight of authority on this issue establishes that courts generally may not consider 50-h examination transcripts, because they fall outside the four corners of the complaint. Similarly, the Defendants point to nothing in the Amended Complaint attached, incorporated by reference, or otherwise suggesting that the Plaintiffs relied on the 50-h transcripts while drafting their claims. As the Defendants make no argument that any such exemption applies, beyond the attendance of the Plaintiffs' counsel at the examinations, he finds no such exemption to be appropriate. As to the Plaintiffs' for sanctions under Rule 11, the Judge denies it as well. He finds no basis for awarding sanctions. He has reviewed the Defendants' submissions and cannot say that their arguments are "utterly lacking support" as the Plaintiffs contend. To the extent that the Plaintiffs' desire to sanction the Defendants based on "unsupported and conclusory" arguments, the Judge disagrees. Finally, as to the Defendants' motion to strike statements made by the Plaintiffs in their reply brief in support of sanctions, the Judge finds their explanation unpersuasive and denies the motion to strike portions of the reply. He finds that the merits of the motion to dismiss are pivotal to the resolution of the Court's sanctions determination. Against this backdrop, the Plaintiffs' reply arguments are appropriate, considering they did not introduce new bases for relief and simply responded to the arguments in the Defendants' opposition. For the foregoing reasons, Judge Spatt denied the motion for reconsideration, the motion to dismiss, the motion for sanctions, and the motion to strike, all in their entirety. A full-text copy of the Court's Dec. 14, 2018 Memorandum of Decision and Order is available at https://is.gd/JiTKC4 from Leagle.com. Ronald Gurrieri, Diane McCauley, Lawrence Loiselle, Mary Tedesco & Edward Donoghue, and all others similarly situated, Plaintiffs, represented by Louis D. Stober, Jr., Law Offices of Louis D. Stober, Jr., LLC. County Of Nassau, Defendant, represented by Deanna Darlene Panico, Bee Ready Fishbein Hatter & Donovan, LLP & Michael Paul Siravo -- msiravo@beereadylaw.com -- Bee Ready Fishbein Hatter & Donovan, LLP. NEOSTRATA CO: Settlement in Horton Labor Suit Has Prelim Approval ----------------------------------------------------------------- In the case, CANDLE HORTON and JEANETTE ZDANEK, individually and on behalf of themselves and all others similarly situated, Plaintiffs, v. NEOSTRATA COMPANY INC.; 24 SEVEN LLC; 24 STAFFING LLC; 24 SEVEN TALENT CALIFORNIA LLC DBA 24 SEVEN CREATIVE SOLUTIONS; 24 SEVEN RECRUITING LLC; CELESTE GUDAS; and DOES 1 through 50, inclusive, Defendants. KIMBERLEE WINSTON, an individual, Plaintiff, v. NEOSTRATA COMPANY INC., et al., Defendants, Case No. 16-cv-2189-AJB-JLB (S.D. Cal.), Judge Anthony J. Battaglia of the U.S. District Court for the Southern District of California granted the Plaintiffs'unopposed motion for preliminary approval of class action settlement. The Judge preliminarily approved the Settlement set forth in the Settlement Agreement as fair, reasonable, and adequate within the meaning of Rule 23 of the Federal Rules of Civil Procedure and the Class Action Fairness Act of 2005 ("CAFA"), subject to final consideration at the final fairness hearing. He certified the Plaintiff class, for settlement purposes only in accordance with the terms of the Settlement Agreement. The Settlement Class is defined as all individuals (1) who provided services to Defendant NeoStrata in California as Freelance Beauty Advisors, Field Sales Representatives, or jobs with similar titles, and (2) who were issued paystubs from one or more of the 24 Seven Defendants from July 20, 2012 through Nov. 28, 2017. The Judge appointed (i) Candle Horton and Jeanette Zdanek as the representatives of the Settlement Class; (ii) the Plaintiffs' counsel, The Law Offices of Thomas D. Rutledge and Cohelan Khoury & Singer, as the class counsel; and (iii) CPT Group, Inc. as the Settlement Administrator. He approved as to form and content the Notice of Class Action Settlement and Fairness Hearing and Exclusion Form. The Defendants will provide to the Settlement Administrator a confidential class list by Jan, 4, 2019 (within 21 days following entry of the Order]). The Notice of Class Action Settlement will be published by Feb. 4, 2019 (within 30 days of receipt of the class data contained in the confidential class list). The Settlement Administrator will send the Notice of Class Action Settlement as well as the Exclusion Form to the Settlement Class via First Class U.S. Mail using the most current, known address for each Class Member based on the current information obtained by the Defendants. Any mailing returned to the Settlement Administrator as undeliverable will be sent within five calendar days to the forwarding address affixed thereto. If no forwarding address is provided, the Settlement Administrator will attempt to determine the correct address using a computer-based skip-trace search, and it will then perform a single re-mailing within five calendar days. If no current address is located, the Notice of Class Action Settlement for that individual will be deemed undeliverable. If a Class Member cannot be located within two attempts at mailings by the Settlement Administrator, the Notice of Class Action Settlement for that individual will be deemed undeliverable. The Defendants will provide timely notice to all appropriate government entities in compliance with the Class Action Fairness Act (including California or any other state where the Class Members may reside) and submit a statement of compliance with the Court in a timely manner as to prevent delay of the Effective Date. At least seven days prior to the Fairness Hearing, the Settlement Administrator will provide a declaration of due diligence and proof of mailing with regard to mailing of the Notice of Class Action Settlement and Exclusion Form, which they will in turn provide to the Court. Judge Battaglia approved the claims submission processes described in the Settlement Agreement. He preliminarily approved the process set forth in the Settlement Agreement for submitting, reviewing, approving and paying all claims as described in the Settlement Agreement. The Judge also approved the process for paying the costs of notice and claims administration, the incentive payments and the Class Counsel's attorneys' fees and litigation costs, subject to proof at the Final Fairness Hearing. Any such Request for Exclusion must be fully completed and postmarked not more than 45 calendar days after the postmark date of the initial mailing of the Notice of Class Action Settlement. Any objection must be sent to the Settlement Administrator and postmarked no later than 45 calendar days after the first postmark date of mailing the Notice of Class Action Settlement. Subject to proof, the Judge preliminary approved the attorneys' fees and costs award for (1) attorneys' fees in an amount up to one-third of the Gross Settlement Amount and (2) litigation costs actually incurred (but not exceeding $20,000) in representing the interests of the Settlement Class Members, supported by billing statements and documentation of expenses by the Class Counsel. Any fees and costs awarded by the Court to the Class Counsel will be paid from the Gross Settlement Amount. The counsel must support their fee claim by a lodestar analysis of hours spent and fee rates for those hours in a Motion to be heard at the Final Settlement Hearing. The Jude also preliminary approved a PAGA payment from the Gross Settlement Amount of $20,000, which will be allocated as $15,000 to the LWDA as the LWDA's share of the settlement of civil penalties paid under the Agreement pursuant to the PAGA on behalf of the Settlement Class Members, and $5,000 to the Net Settlement Amount for distribution to the Settlement Class Members. The PAGA Payment is to cover any and all claims for civil penalties on behalf of the Settlement Class Members for violations of California Labor Code sections 201-204, 204b, 210, 216, 218, 218.5, 223, 224, 225.5, 226, 226.3, 226.6, 226.7, 245, 246, 246.5, 247, 247.5, 248.5, 249, 510, 512, 558, 1174, 1174.5, 1175, 1182.12, 1194, 1194.2, 1197, 1197.1, 1198, 2699, 2802, 2804, 2810.3, 2810.5, and the applicable IWC Wage Order. This includes any claims for civil penalties, wages, attorneys' fees, costs, and any other recovery permitted under California Labor Code sections 210, 218.5, 224, 225.5, 226.3, 558, 1174, 1174.5, 1197.1, and 2699. Finally, the Judge preliminary approved the general release by the Class Representatives. The final fairness hearing will be heldon April 11, 2019, at 2:00 p.m. The Class Counsel must file a motion for final approval of settlement, fees, costs, and other distributions no later than 28 days before the Final Approval Hearing. The Counsel must also submit a proposed order at that time. A full-text copy of the Court's Dec. 14, 2018 Order is available at https://is.gd/RQrDNt from Leagle.com. Candle Horton, individually and on behalf of herself and others similarly situated & Jeanette Zdanek, individually and on behalf of herself and others similarly situated, Plaintiffs, represented by Isam C. Khoury -- ikhoury@ckslaw.com -- Cohelan Khoury & Singer, James Jason Hill -- jhill@ckslaw.com -- Cohelan Khoury & Singer, Michael D. Singer -- msinger@ckslaw.com -- Cohelan, Khoury & Singer & Thomas D. Rutledge -- rutledgelaw@cox.net -- Law Office of Thomas D Rutledge. Kimberlee Winston, individually and on behalf of herself and others similarly situated, Plaintiff, pro se. Neostrata Company Inc., a Delaware corporation, Defendant, represented by Michael S. Kun -- mkun@ebglaw.com -- Epstein, Becker & Green, PC. 24 Seven Employment Inc., a New York corporation, 24 Seven Talent California, Inc., a California corporation, 24 Seven Creative Solutions, an unknown entity & Celeste Gudas, an individual, Defendants, represented by Daniel Chul Whang -- dwhang@seyfarth.com -- Seyfarth Shaw LLP, Kevin Steven Saman , Seyfarth Shaw LLP & Timothy L. Hix -- thix@seyfarth.com -- Seyfarth Shaw LLP. 24 Seven LLC, a New York limited liability, 24 Seven Talent California LLC, a New York limited liability corporation & 24 Seven Recruiting LLC, a New York limited liability corporation, Defendants, represented by Kevin Steven Saman -- kevin.saman@bydeluxe.com -- Seyfarth Shaw LLP. NEW BALANCE: Court Denies 2nd Class Certification Bid in Dashnaw ---------------------------------------------------------------- The United States District Court for the Southern District of California issued an Order denying Plaintiffs' Renewed Motion for Class Certification in the case captioned SHEILA DASHNAW et al., Plaintiffs, v. NEW BALANCE ATHLETICS, INC., Defendant. Case No. 17-cv-00159-L-JLB. (S.D. Cal.). Pending before the Court in this putative class action alleging consumer fraud relating to "made in USA" representations on certain New Balance athletic shoes, is the Plaintiffs' motion for preliminarily approval of class action settlement. The proposed cy pres award to the Public Justice Foundation does not comply with Dennis v. Kellogg Co., 697 F.3d 858, 865 (9th Cir. 2012). According to its website, the Public Justice Foundation pursues high impact lawsuits to combat social and economic injustice, protect the Earth's sustainability, and challenge predatory corporate conduct and government abuses. In this regard, Public Justice staff attorneys fight against injustices such as corporations cheating consumers and using the courts to find ways to get away with it, reckless polluters, unscrupulous payday lenders, unjust employers, punitive credit card companies, inhumane government detention centers, dangerous food producers, and more. Although protecting consumers from corporations is one of the areas in which the Public Justice Foundation is active, the settlement provides no assurance that any funds would in fact be used to protect California consumers from false advertising, as opposed to the variety of areas where Public Justice Foundation is active. Not just any worthy recipient can qualify as an appropriate cy pres beneficiary. What is required is assurance that the funds will be distributed in accordance with the goals of the remedy and that class members will in fact benefit. The fact that a cy pres beneficiary could potentially use the funds in a manner that will benefit the class members provides an insufficient driving nexus between the plaintiff class and the cy pres beneficiaries. Accordingly, in the pending case, the settlement must ensure that the funds are distributed for the purpose of protecting consumers from, or redressing injuries caused by, false advertising. Plaintiffs have not provided any assurance that a distribution to the Public Justice Foundation would be so limited. The notice is also unnecessarily verbose, repetitive and confusing. For example, Plaintiffs' explanation of the subject matter of this action, summary of the monetary terms of the settlement, and calculation of the likely recovery, as presented in their memorandum, is far clearer, more accurate and more concise than the verbiage used to cover the same subject matter in the notice. The same observations apply to the summary notice and claim form. The Plaintiffs are therefore urged to reconsider the proposed notice, summary notice and claim form for accuracy, clarity and user-friendliness. Specifically, the class members should not be required to consult the settlement agreement for definition of material terms used throughout the notice, summary notice and/or claim form. Although it is fair to refer to the agreement for the details of less than material provisions, all material terms and provisions, especially those referenced with frequency, should be defined and explained in the document itself. In addition, Plaintiffs should include an exclusion form in the notice package for the putative class members who wish to exclude themselves. The settlement administrator shall accept exclusion forms on the same terms as claim forms. Accordingly, the Plaintiffs' motion for preliminary class action certification and settlement approval is denied without prejudice to re-filing after curing the foregoing defects. A full-text copy of the District Court's November 26, 2018 Order is available at https://tinyurl.com/y9ewnfak from Leagle.com. Sheila Dashnaw, individually, and on behalf of all others similarly situated, William Meier, individually, and on behalf of all others similarly situated & Sherryl Jones, individually, and on behalf of all others similarly situated, Plaintiffs, represented by Jason Hoon Kim -- jkim@schneiderwallace.com -- O'Melveny and Myers, Todd M. Schneider -- Schneider Wallace Cottrell Brayton Konecky LLP & Aubry Wand -- awand@wandlawfirm.com -- The Wand Law Firm. New Balance Athletics, Inc., a corporation, Defendant, represented by Elizabeth E. Brenckman -- brenckman@fr.com -- Fish & Richardson P.C., pro hac vice, Garrett K. Sakimae -- sakimae@fr.com -- Fish & Richardson P.C., Laura B. Najemy -- najemy@fr.com -- Fish & Richardson P.C., pro hac vice, Mark Puzella, Fish & Richardson P.C., pro hac vice, Richard David Hosp -- hosp@fr.com -- Fish & Richardson P.C., pro hac vice & Sheryl K. Garko -- garko@fr.com -- Fish & Richardson P.C., pro hac vice. The Attorney General of the State of California, Miscellaneous Party, represented by Timothy Dean Lundgren. NFSM PIZZA: McFadden Wants to Recover Wages for Delivery Drivers ---------------------------------------------------------------- AMANDA MCFADDEN, individually and on behalf of similarly situated persons v. NFSM PIZZA, INC., d/b/a "Domino's Pizza," CHARLES RIDDLE and ALAN GRIFFIN, Case No. 2:18-cv-00204-SWS (D. Wyo., December 5, 2018), is brought under the Fair Labor Standards Act to recover alleged unpaid minimum wages and overtime hours owed to the Plaintiff herself and similarly situated delivery drivers employed by the Defendants at their Domino's stores. NFSM Pizza, Inc., is a Wyoming Foreign Profit Corporation, which may be served with process via its registered agent Charles Riddle. The Individual Defendants are owners, officers or held managerial responsibilities and substantial control over terms and conditions of the drivers' work. The Defendants operate numerous Domino's franchise stores. The Defendants employ delivery drivers, who use their own automobiles to deliver pizza and other food items to their customers.[BN] The Plaintiff is represented by: Dustin T. Lujan, Esq. LUJAN LAW OFFICE 1603 Capitol Ave., Suite 310 A559 Cheyenne, WY 82001 Telephone: (970) 999-4225 E-mail: wyoadvocate@gmail.com - and - J. Forester, Esq. Matthew Haynie, Esq. FORESTER HAYNIE PLLC 1701 N. Market Street, Suite 210 Dallas, TX 75202 Telephone: (214) 210-2100 Facsimile: (214) 346-5909 E-mail: jay@foresterhaynie.com matthew@foresterhaynie.com NISSAN: Faces Class Action Over Defective Braking Systems --------------------------------------------------------- Robert Kahn, writing for Courthouse News Service, reported that Nissan sold at least nine models of vehicles since 2015 model year with defective Forward Emergency Braking or Automatic Emergency Braking systems that can detect nonexistent obstacles, bringing the car to a halt in traffic, consumers claim in a federal class action. NORTH SHORE: Certification of Class Sought in O'Boyle Suit ---------------------------------------------------------- Anne O'Boyle moves the Court to certify the class described in the complaint of the lawsuit captioned ANNE O'BOYLE, Individually and on Behalf of All Others Similarly Situated v. NORTH SHORE AGENCY, LLC, Case No. 2:18-cv-01921-PP (E.D. Wisc.), and further asks that the Court both stay the motion for class certification and to grant the Plaintiff (and the Defendant) relief from the Local Rules setting automatic briefing schedules and requiring briefs and supporting material to be filed with the Motion. Dicta in the Supreme Court's decision in Campbell-Ewald Co. v. Gomez, left open the possibility that a defendant facing a class action complaint could moot a class representative's case by depositing funds equal to or in excess of the maximum value of the plaintiff's individual claim with the court and having the court enter judgment in the plaintiff's favor prior to the filing of a class certification motion, the Plaintiff asserts, citing Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016). To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion. Damasco v. Clearwire Corp., 662 F.3d 891, 896 (7th Cir. 2011), overruled on other grounds, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015) ("The pendency of that motion [for class certification] protects a putative class from attempts to buy off the named plaintiffs."). While the Seventh Circuit has held that the specific procedure described in Campbell-Ewald cannot force the individual settlement of a class representative's claims, the same decision cautions that other methods may prevent a plaintiff from representing a class, the Plaintiff tells the Court, citing Fulton Dental, LLC v. Bisco, Inc., No. 16-3574, 2017 U.S. App. LEXIS 10839 *9-10 (7th Cir. June 20, 2017). The Plaintiff asserts that one defendant has attempted a similar tactic by sending a certified check to the proposed class representative. Bonin v. CBS Radio, Inc., No. 16-cv-674-CNC (E.D. Wis.); see also Severns v. Eastern Account Systems of Connecticut, Inc., Case No. 15-cv-1168, 2016 U.S. Dist. LEXIS 23164 (E.D. Wis. Feb. 24, 2016). The Plaintiff is obligated to move for class certification to protect the interests of the putative class, the Plaintiff notes. As the Motion to certify a class is a placeholder motion as described in Damasco, the parties and the Court should not be burdened with unnecessary paperwork and the resulting expense when short motion to certify and stay should suffice until an amended motion is filed, the Plaintiff contends. The Plaintiff also asks to be appointed as class representative, and for the appointment of Ademi & O'Reilly, LLP, as class counsel.[CC] The Plaintiff is represented by: John D. Blythin, Esq. Mark A. Eldridge, Esq. Jesse Fruchter, Esq. Ben J. Slatky, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482-8000 Facsimile: (414) 482-8001 E-mail: jblythin@ademilaw.com meldridge@ademilaw.com jfruchter@ademilaw.com bslatky@ademilaw.com NOW LLC: Richards et al. Suit Moved to Central Dist. of California ------------------------------------------------------------------ A case, Copeland Richards, Ceeca Begley, Dehlia Gaynor, Tyshon Greene, Ernest Markarian, and Christian Montenegro, as an individual and on behalf of all employees similarly situated, the Plaintiff, vs. The Now, LLC, a California Limited Liability Company, Leland Raymond, DOES 1 through 50, inclusive, the Defendants, Case No. BC695628, was removed from the Los Angeles Superior Court, to the Central District of California (Western Division - Los Angeles) on Dec. 6, 2018. The Central District of California Court Clerk assigned Case No. 2:18-cv-10152-SVW-MRW to the proceeding. The suit alleges labor-related violation. The case is assigned to the Hon. Judge Stephen V. Wilson.[BN] Attorneys for Copeland Richards: Edward E. Kim, Esq. Kevin Mahoney, Esq. MAHONEY LAW GROUP APC 249 East Ocean Boulevard Suite 814 Long Beach, CA 90802 Telephone: (562) 590-5550 Facsimile: (562) 590-8400 E-mail: ekim@mahoney-law.net kmahoney@mahoney-law.net Attorneys for Ceeca Begley, Christian Montenegro, Ernest Markarian, Tyshon Greene and Dehlia Gaynor: Chantal McCoy Payton, Esq. PAYTON EMPLOYMENT LAW 11500 West Olympic Boulevard Suite 400 Los Angeles, CA 90064 Telephone: (310) 444-3039 Facsimile: (310) 870-7207 E-mail: CPayton@PaytonEmploymentLaw.com - and - Marissa L Simmons, Esq. LAW OFFICES OF MARISSA L SIMMONS 11500 West Olympic Boulevard Suite 400 Los Angeles, CA 90064 Telephone: (310) 853-2235 Facsimile: (310) 853-2235 E-mail: marissa@marissasimmonslaw.com Attorneys for defendants The Now, LLC and Leland Raymond: Ashley Michelle Farrell, Esq. Ryan Christopher Bykerk, Esq. Mark D Kemple, Esq. GREENBERG TRAURIG LLP 1840 Century Park East Suite 1900 Los Angeles, CA 90067-2121 Telephone: (310) 586-7700 Facsimile: (310) 586-7800 E-mail: farrellpicketta@gtlaw.com bykerkr@gtlaw.com kemplem@gtlaw.com PACIFIC UNION: Mortgage Borrowers File Class Action --------------------------------------------------- Robert Kahn, writing for Courthouse News Service, reported that a class claims Pacific Union Financial violates California law by refusing to pay mortgage borrowers at least 2 percent interest on advance payments for taxes and insurance, held in escrow. PEBBLE BEACH: Court Affirms $180K Attys' Fees Award in Orozco Suit ------------------------------------------------------------------ In the case, DANIEL OROZCO, Plaintiff and Appellant, v. PEBBLE BEACH COMPANY, Defendant and Respondent, Case No. H044232 (Cal. App.), Judge Nathan D. Mihara of the Court of Appeals of California for the Sixth District affirmed the trial court's judgment granting final approval of Orozco's class action settlement with the Defendant. In September 2014, Joey Cubbage, who was the original class representative, filed a class action complaint alleging that the Defendant failed to provide accurate wage statements in violation of Labor Code section 226. More specifically, the first cause of action alleged that the wage statements failed to identify pay period dates and the employee identification number and/or the last four digits of the employee's social security number. The Plaintiff also alleged a second cause of action under the Private Attorneys General Act of 2004 for a representative action for civil penalties. The complaint alleged that the class included all current and former California employees of the Defendant, who received wages from defendant from Sept. 18, 2013, through the present. Cubbage was represented by the law firms of Diversity Law Group and Polaris Law Group. In March 2015, Cubbage filed a first amended class action complaint. The first cause of action added the allegation that the wage statements also failed to identify the applicable pay rate and number of hours for OT Premium wages. The complaint alleged that the class also included all current and former California employees of defendant who were paid OT Premium wages from the Defendant from Sept. 18, 2013, through the present. In June 2015, the parties participated in a full-day of mediation. After further negotiations on subsequent days, the parties entered into an agreement to settle the case. On Sept. 30, 2015, Cubbage filed a motion for preliminary approval of the class action settlement. A month later, the hearing on the motion was held. Noting that Cubbage had pleaded guilty to felony theft from an elder, was ordered to pay over $500,000 in restitution, and was currently on probation, the trial court found that he was not an appropriate class representative. The class counsel was unaware of Cubbage's conviction. The trial court also found that the motion failed to include, among other things, the number of the class members, a description of the overtime claim, the counsel's hourly rates and number of hours, and authority to support the Plaintiff's potential liability for attorney's fees. The motion was denied without prejudice. In January 2016, a second amended class action complaint was filed. Sandra Cassidy was added as a class representative. The second amended class action complaint added a cause of action alleging that the Defendant failed to pay premium compensation at regular rates of pay for missed rest periods in violation of Labor Code section 226.7. This complaint alleged that the class also included all current and former California employees of defendant, who were paid meal premium pay from July 28, 2013, through the present. About two months later, the parties agreed for purposes of settlement that a third amended complaint would be filed. On April 4, 2016, Cassidy withdrew as a named plaintiff and Daniel Orozco was added as a named plaintiff to act on behalf of the class. On April 20, 2016, a motion for preliminary approval of a class action settlement was filed. The settlement agreement provided: the Defendant would create a gross common fund of $750,000; any class member who did not opt out of the settlement would be automatically issued his or her share of the settlement; none of the common fund would revert back to the Defendant; after payment to the class representative, the California Labor & Workforce Development Agency, and the class counsel, the net settlement sum would be divided among the approximately 3,000 class members based on the number of wage statements that each received. The settlement agreement also provided for attorney's fees up to one-third (33.33%) the total settlement sum, equal to $250,000. No class members objected to any portion of the class settlement agreement. Following a hearing, the trial court issued an order granting preliminary approval of the settlement. On Sept. 23, 2016, a motion for final approval of the class action settlement was filed. The class counsel attached declarations to the motion and stated that their rates were $650 per hour and they had spent 380 hours on the case. A month later, the trial court held a hearing on the motion. The trial court concluded that the hourly rate and the number of hours charged by the class counsel was excessive. It awarded $180,000 in attorney's fees, explaining that it's the totality of the case, the amount of work the counsel put into it, the hours. The Plaintiff contends that the trial court abused its discretion when it reduced the request for attorney's fees. He argues that the trial court erred by failing to follow the holding in Laffitte v. Robert Half Internat. Inc. Judge Mihara disagrees finding the Plaintiff's reliance on Laffitte is misplaced. He opines that the Laffitte court did not hold that trial courts are required to use the percentage method in calculating attorney's fees. Instead, it held that the trial court did not abuse its discretion in using the method when it approved the fee request. The Plaintiff also contends that the trial court abused its discretion by failing to allow him to seek a multiplier on the reduced lodestar. When the class counsel learned that the trial court intended to reduce the amount of attorney's fees, he requested that it apply a multiplier to the reduced lodestar and argued that a multiplier of 1.3 was appropriate. Thus, the Judge finds that the Plaintiff was not deprived of the opportunity to seek a multiplier on the reduced lodestar. For these reasons, the Judge Mihara affirmed. A full-text copy of the Court's Dec. 14, 2018 Opinion is available at https://is.gd/RkLQnN from Leagle.com. PINNACLE FOODS: Faces False Advertising Class Action ---------------------------------------------------- Insurance Journal reports that a class-action lawsuit has been filed against the maker of potato chips sold under the brand name Hawaiian, claiming the chips made in Washington state are misleading customers. The Honolulu Star-Advertiser reported Michael Maeda of Honolulu and Iliana Sanchez of Los Angeles filed the suit last month, alleging Pinnacle Foods Inc. is using false and deceptive advertising as well as fraudulent and unfair business practices. They claim they and consumers like them would not have purchased the chips, or would have paid significantly less, if they knew the snacks were made outside of Hawaii and without ingredients from the state. The chips' packaging does not say the snacks are made in Hawaii. An attorney for the company, which is headquartered in New Jersey, declined to comment on the lawsuit. [GN] PNC BANK: Kennedy-Rose Sues Over Illegal Bank Charges ----------------------------------------------------- Simon Kennedy-Rose and Third Force Negotiation, LLC, individually and on behalf of all others similarly situated, Plaintiffs, v. PNC Bank, National Association, Defendant, Case No. 2018CH15093 (Ill. Cir. Ct., December 4, 2018), seeks damages, restitution and/or injunctive relief exclusive of interest, costs and attorneys' fees arising from charging service fees to which the account holders did not agree to, in violation of Illinois Consumer Fraud and Deceptive Business Practices Act and common law fraud. Kennedy-Rose opened a "Free Business Checking Account" with PNC at its branch located at 3844 West Belmont Avenue in Chicago, Illinois, under the consideration that the account was free banking and incurred no monthly fees. However, his account was enrolled in a service called "Cash Flow Insight" which incurred a $22.00 fee, without his knowledge. [BN] Plaintiff is represented by: David B. Levin, Esq. Law Offices of Todd M. Friedman, P.C. 111 West Jackson Blvd., Suite 1700 Chicago, IL 60604 Phone: (312) 212-4355 Fax: (866) 633-0228 Email: dlevin@toddflaw.com PORTFOLIO RECOVERY: Bid for Judgment on Pleadings in Madinya Okayed ------------------------------------------------------------------- In the case, SANDRA MADINYA, on behalf of herself and all others similarly situated, Plaintiff, v. PORTFOLIO RECOVERY ASSOCIATES, LLC, Defendant, Case No. 18-cv-61138-BLOOM/Valle (S.D. Fla.), Judge Beth Bloom of the U.S. District Court for the Southern District of Florida granted the Defendant's Motion for Judgment on the Pleadings. Madinya filed the putative class action against the Defendant under the Fair Debt Collection Practices Act ("FDCPA"), stemming from a letter sent to the Plaintiff on Feb. 21, 2018 to collect on a time-barred debt. At the time she received the Letter in the mail related to debt she incurred on a Capital One credit card, the debt was time-barred. The Plaintiff contends that the letter violates the FDCPA because it fails to disclose to the Plaintiff that should she make a partial payment on the debt, the Defendant's right to sue for the debt would be "revived" under Florida law. Based on these allegations, the Plaintiff alleges in a single count violations of 15 U.S.C. Sections 1692e, 1692e(2)(A), 1692e(10), and 1692f. According to the Plaintiff, although it may not be improper for the Defendant to seek repayment for a time-barred debt, in doing so, the Defendant must avoid creating a misleading impression regarding the consequences of making partial payment on a time-barred debt, and clearly and prominently disclose that partial payment would revive the statute of limitations. The Defendant previously sought to dismiss the Complaint, arguing that the Plaintiff failed to state a claim under the FDCPA, and that in any event, the Defendant is protected by the safe harbor provision in the FDCPA. The Court denied the Defendant's Motion to Dismiss. It noted that although the Plaintiff alleges in the Complaint that the right to file suit on a time-barred debt can be revived by partial payment under Florida law, the Plaintiff's conclusory allegation may not constitute an accurate statement of the law in Florida. Nevertheless, the Court observed that the Defendant had not made that particular argument in its Motion to Dismiss. Therefore, the Court declined to entertain it by implication. The Defendant now moves for judgment on the pleadings, arguing that the Plaintiff's statement of Florida law is incorrect, and therefore, that the Plaintiff's FDCPA claim fails as a matter of law. In response, the Plaintiff argues that partial payment may revive the statute of limitations, if accompanied by a writing. According to her, the Letter features a payment coupon and requests a check from the consumer, which requires a signature. She therefore urges the Court to hold that the completion of the payment coupon (by filling in the amount paid), accompanied by a check, is sufficient to revive the statute of limitations. Judge Bloom finds that despite the Plaintiff's citation to Section 95.04 in the Complaint, the only clear and consistent enunciation of her legal theory is that partial payment on a time-barred debt revives the statute of limitations under Florida law. The Plaintiff's statement of Florida law is a legal conclusion, which the Judge needs not accept as true or construe in her favor. The Plaintiff's only pled theory is based upon an incorrect statement of law. A partial payment alone does not revive the statute of limitations on a time-barred debt in Florida. As a result, because a time-barred debt cannot be revived by partial payment alone under Florida law, then the least sophisticated consumer could not be misled by omission of language regarding the potential consequences of such payment. Accordingly, the Plaintiff's FDCPA claim fails as a matter of law. For the reasons set forth, Judge Bloom granted the Defendant's Motion. The Judge will enter judgment by separate order. The Clerk of Court is directed to CLOSE the case. A full-text copy of the Court's Dec. 14, 2018 Order is available at https://is.gd/m1mHaG from Leagle.com. Sandra Madinya, on behalf of herself and all others similarly situated, Plaintiff, represented by Darren R. Newhart -- darren@cloorg.com -- Consumer Law Organization, P.A. & Jordan Alexander Shaw -- jshaw@zpllp.com -- ZEBERSKY PAYNE. Portfolio Recovery Associates, LLC, Defendant, represented by Sara F. Holladay-Tobias -- stobias@mcguirewoods.com -- McGuire Woods & Brittney Lauren Difato -- bdifato@mcguirewoods.com -- McGuireWoods LLP. PORTFOLIO RECOVERY: Bulger & Hamadeh Sue over Debt Collection ------------------------------------------------------------- Scott Bulger and Chafik Hamadeh, on behalf of themselves and all others similarly situated, the Plaintiffs, vs. Portfolio Recovery Associates, L.L.C., the Defendant, Case No. 18-37769A (Mass. Super. Ct., Dec. 4, 2018), alleges that Defendant violated the Massachusetts Consumer Protection Act, and the Massachusetts Debt Collection Regulations, in its illegal efforts to collect consumer debts. According to the complaint, the Massachusetts Attorney General regulated it an "unfair or deceptive act or practice for a creditor" to "initiate a communication with any debtor via telephone, either in person or via text messaging or recorded audio message, in excess of two such communications in each seven day period to either the debtor's residence, cellular telephone, or other telephone number provided by the debtor as his or her personal telephone number." The Attorney General has advised, and the Massachusetts Supreme Court recently confirmed, that the regulation means debt collectors cannot place more than two collection calls per week to Massachusetts consumers, regardless of the outcome of the gall. See Arntala v. Target Corp. Mr. Bulger incurred a financial obligation that arose from services which were primarily for family, personal or household purposes. PRA attempted to collect the Debts from Plaintiffs and, as such, initiated and engaged in "communications. PRA called Mr. Bulger at an excessive and harassing rate, placing more than two calls to Mr. Bulger in an attempt to collect the Bulger Debt within a seven-day period. For example, PRA called Mr. Bulger's cellular telephone on November 14, 2018, November 18, 20I8 and November 20,2018, the lawsuit says. PRA, also known as Anchor Receivables Management, manages past-due accounts. It serves customers through account representatives. The company was incorporated in 1996 and is based in Norfolk, Virginia. Portfolio Recovery Associates, LLC operates as a subsidiary of PRA Group, Inc.[BN] Attorneys for Plaintiff: Sergei Lemberg, Esq. LEMBERG LAW, LLC 43 Danbury Road Wilton, CT 06897 E-mail: slemberg@lemberglaw.com PRINCESS ANNE MOTEL: Faces Honeywell ADA Suit in S.D. Florida ------------------------------------------------------------- A class action lawsuit has been filed against Princess Anne Motel Management, Inc. The lawsuit is captioned as Cheri Honeywell, individually and on behalf of all others similarly situated, the Plaintiff, vs. Princess Anne Motel Management, Inc., a Florida corporation, the Defendant, Case No. 0:18-cv-62961-WPD (S.D. Fla., Dec. 4, 2018). The suit alleges Americans with Disabilities Act violation. The case is assigned to the Hon. Judge William P. Dimitrouleas.[BN] Attorneys for Plaintiff: Jessica Lynn Kerr, Esq. JESSICA L.KERR, P.A. DBA THE ADVOCACY GROUP 200 S.E. 6th Street, Suite 504 Fort Lauderdale, FL 33301 Telephone: (954) 282-1858 Facsimile: (844) 786-3694 E-mail: service@advocacypa.com PTT LLC: Wash. Court Denies Bid to Dismiss Wilson Suit ------------------------------------------------------ In the case, SEAN WILSON, individually and on behalf of all others similarly situated, Plaintiff, v. PTT, LLC, a Delaware limited liability company d/b/a HIGH 5 GAMES, LLC, a Delaware limited liability company, Defendant, Case No. 3:18-cv-05275-RBL (W.D. Wash.), Judge Ronald B. Leighton of the U.S. District Court for the Western District of Washington, Tacoma, denied High 5's Motion to Dismiss. The underlying dispute is a class action to recover money lost playing electronic gambling games available through mobile apps. High 5 argues that the Complaint should be dismissed for lack of personal jurisdiction and failure to state a claim. Specifically, High 5 contends that it should not be subject to personal jurisdiction because it has no control over the physical location of users who download and use its apps. In addition, High 5 argues that its apps do not allow users to gamble for a "thing of value" and do not constitutes "illegal gambling" under Washington law. High 5, a Delaware company headquartered in New York, markets apps that allow players to partake in popular gambling games, such as slot machine. The apps allow users to play these games with "virtual coins" that may be won or purchased in the app after users run out of the initial free allotment. Wilson purchased $1.99 worth of coins that he subsequently lost playing High 5's games. Despite the fact that these coins cannot be redeemed for actual money, Wilson alleges that they are nonetheless valuable because they can be used to continue playing. Therefore, Wilson alleges that the games on High 5's apps constitute gambling as defined by RCW 9.46.0285 in violation of RCW 4.24.070. Wilson also alleges two derivative claims for violation of the Washington Consumer Protection Act, RCW 19.86.010, and unjust enrichment. Judge Leighton explains that for specific jurisdiction, the Ninth Circuit applies a three-prong test. First, the non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws. Second, the claim must be one which arises out of or relates to the defendant's forum-related activities. Finally, the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable. For the first prong, the Judge finds that under the purposeful availment framework, High 5 has sufficient contacts with the forum. Even if the purposeful direction analysis were applied, High 5 would still have sufficient contacts with the forum. The second prong of the personal jurisdiction analysis is also met because Wilson's claims arise out of his purchase and use of coins from apps High 5 makes available in Washington State. The Judge finds that although High 5 could argue that the actual gambling at issue in this case consists of playing High 5's games with previouslypurchased coins, the purchase of coins is inseparable from their subsequent use in High 5's games. Indeed, they have no other purpose. Finally, the third prong is also satisfied because exercising jurisdiction over High 5 is reasonable and fair. High 5 makes its apps available in Washington and profits substantially from business in the forum. In short, High 5 does not present any compelling reason why jurisdiction would be unreasonable. Wilson therefore has specific jurisdiction to sue High 5 in Washington, and the case will not be dismissed or transferred on that basis. Next, the Judge turns to High 5's argument that its apps do not allow users to gamble for a "thing of value" and do not constitutes "illegal gambling" under Washington law. Among other things, he finds that High 5 misconstrues the nature of the "transaction" at issue in the case. Whereas traditional gambling consists of a single transaction (money for a chance to win), High 5's apps divvy up this process between two connected transactions. Although the first transaction allows a user to obtain the virtual coins, the second transaction of spending them in High 5's games is what fits the statutory definition of gambling. Consequently, regardless of whether purchasing coins from High 5 is similar to buying securities or tickets to a baseball game, buying coins and then using them to play High 5's games is not a "bona fide business transaction." High 5 essentially argues that the Ninth Circuit's interpretation of RCW 9.46.285 and 4.24.070 cannot be correct because it is contrary to RCW 9.46.010's statement of the legislature's intent. However, the Judge holds that RCW 9.46.010 is not necessarily in tension with categorizing High 5's games as "illegal gambling" because they allow High 5 to profit and may have a malicious effect on those predisposed to gambling addiction. Furthermore, the Court will not contradict the Ninth Circuit's clearly stated interpretation in Kater on the basis of an ambiguous statement of legislative intent. For all these reasons, Judge Leighton denied Defendant High 5's Motion to Dismiss. To the extent that High 5's arguments rely on evidence that cannot be properly considered at the motion to dismiss stage, High 5 can raise these arguments by submitting a Motion for Summary Judgment. A full-text copy of the Court's Dec. 14, 2018 Order is available at https://is.gd/U7adhG from Leagle.com. Sean Wilson, individually and on behalf of all others similarly situated, Plaintiff, represented by Cecily C. Shiel -- cshiel@tousley.com -- TOUSLEY BRAIN STEPHENS, Janissa Ann Strabuk -- jstrabuk@tousley.com -- TOUSLEY BRAIN STEPHENS, Benjamin H. Richman -- brichman@edelson.com -- EDELSON PC, pro hac vice, Eve-Lynn Rapp -- erapp@edelson.com -- EDELSON PC, pro hac vice, Rafey S. Balabanian -- rbalabanian@edelson.com -- EDELSON PC, pro hac vice & Todd Logan -- tlogan@edelson.com -- EDELSON PC, pro hac vice. PTT, LLC, a Delaware limited liability company, Defendant, represented by Christopher Wright -- wright@carneylaw.com -- CARNEY BADLEY SPELLMAN PS, Emilia L. Sweeney -- sweeney@carneylaw.com -- CARNEY BADLEY SPELLMAN PS, Erik F. Stidham -- efstidham@hollandhart.com -- HOLLAND & HART LLP, pro hac vice, Jennifer M. Jensen, HOLLAND & HART LLP, pro hac vice, Robert C. Ryan, HOLLAND & HART LLP, pro hac vice & Teague I. Donahey -- tidonahey@hollandhart.com -- HOLLAND & HART LLP, pro hac vice. PURDUE PHARMA: Faces Sherman Suit in District of Minnesota ---------------------------------------------------------- Darcy Sherman, individually and on behalf of all others similarly situated, the Plaintiff, vs. Purdue Pharma L.P., Purdue Pharma, Inc., Purdue Frederick Company Inc., The Insys Therapeutics, Inc., Teva Pharmaceutical Industries, LTD, Teva Pharmaceuticals USA, Inc., Cephalon, Inc., Johnson & Johnson, Endo Health Solutions Inc., Endo Pharmaceuticals, Inc., Actavis PLC, Actavis, Inc., Watson Pharmaceuticals, Inc., Watson Laboratories, Inc., McKesson Corporation, Cardinal Health, Inc., AmerisourceBergen Corporation, and Janssen Pharmaceuticals, Inc., the Defendants, Case No.: 0:18-cv-03335-JNE-SER (D. Minn., Dec. 6, 2018). The suit demands $75,000 alleging Racketeering (RICO) Act violation. The case assigned to the Hon. Judge Joan N. Ericksen.[BN] Purdue Pharma L.P. is a privately held pharmaceutical company owned principally by parties and descendants of Mortimer and Raymond Sackler. Attorneys for Plaintiff: Jared D Shepherd, Esq. HOFF, BARRY & KOZAR 775 Prairie Ctr Dr Ste 160 Eden Prairie, MN 55344 Telephone: (952) 941-9220 Facsimile: (952) 941-7968 E-mail: jshepherd@hoffbarry.com QWEST CORP: Bid to Dismiss/Transfer Seiffert Suit Under FLSA Denied ------------------------------------------------------------------- In the case, JORDAN SEIFFERT, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, Plaintiffs, v. QWEST CORPORATION D/B/A/CENTURYLINK QC AND CENTURYLINK COMMUNICATIONS, LLC, Defendants, Case No. CV-18-70-GF-BMM (D. Mont.), Judge Brian Morris of the U.S. District Court for the District of Montana, Great Falls Division, denied the Defendant's Motion to Dismiss opt-in Plaintiffs, or in the Alternative, Transfer Venue. Seiffert, on behalf of himself, and all others similarly situated, brings a collective action against the Defendants. The Defendants move to dismiss the out-of-state Plaintiffs and putative Plaintiffs, or, in the alternative, transfer the case to the Western District of Louisiana where CenturyLink is headquartered. Seiffert opposes the motion. CenturyLink first alleges that the Court lacks personal jurisdiction over the out-of-state Opt-in Plaintiffs' claims. Judge Morris finds that the Court possesses personal jurisdiction over Seiffert, the sole named Plaintiff in the FLSA collective action. The proper exercise of personal jurisdiction over Seiffert proves sufficient at this stage of the case to satisfy the personal jurisdiction requirement for an FLSA collective action. The Supreme Court's analysis in Bristol-Myers Squibb Co. v. Superior Court of Cal. did not intend to restrict the Court's exercise of personal jurisdiction in FLSA collective action cases. Next, the Defendants argue that the Court should transfer the case to the Western District of Louisiana. CenturyLink maintains its headquarters in Louisiana and a district court in Louisiana could exercise its general jurisdiction over CenturyLink. The Judge recognized that parties and witnesses resided throughout the country. These parties and witnesses would be required to travel regardless of where the trial took place. The transfer of the action would simply shift the inconvenience from some parties and witnesses to others. This factor weighed against transfer and the district court declined to transfer the case. In addition, the transfer of the action outside Montana similarly would shift the inconvenience from some parties and witnesses to others. Nearly all Plaintiffs reside outside Montana and Louisiana. The main witnesses likely will consist of the parties themselves and CenturyLink employees. The majority of potential employee witnesses live outside both Montana and Louisiana. Finally, the Defendants argue that Seiffert lacks any contacts with the forum because Seiffert no longer lives or works in Montana. They point out that no named Plaintiff now resides in Montana and only 25 opt-in Plaintiffs reside in Montana. Seiffert both lived and worked in Montana during the relevant time period. CenturyLink continues to conduct business in Montana. The cause of action arose from that conduct in Montana. This factor weighs against transfer. Having considered the motion to dismiss, and the factors pertinent to the motion to transfer the present action to the Western District of Louisiana, Judge Morris has determined that the factors weigh against transfer. Accordingly, he denied the Defendant's Motion to Dismiss opt-in Plaintiffs, or in the Alternative, Transfer Venue. A full-text copy of the Court's Dec. 14, 2018 Order is available at https://is.gd/8ISPxZ from Leagle.com. Jordan Seiffert, on behalf of himself and all other similarly situated, Plaintiff, represented by Philip L. McGrady -- Philip@mcgradylawfirm.com -- McGRADY LAW, Rowdy B. Meeks , ROWDY MEEKS LEGAL GROUP LLC, pro hac vice & Tracey F. George , DAVIS GEORGE MOOK LLC, pro hac vice. Qwest Corporation, d/b/a CenturyLink QC & CenturyLink Communications, LLC, Defendants, represented by Brian Mumaugh -- bmumaugh@hollandhart.com -- HOLLAND & HART, pro hac vice, Brianne C. McClafferty -- bcmcclafferty@hollandhart.com -- HOLLAND & HART, Chris R. Pace -- chris.pace@ogletree.com -- OGLETREE DEAKINS NASH SMOAK & STEWART, P.C., pro hac vice, Justin M. Dean -- justin.dean@ogletree.com -- OGLETREE DEAKINS NASH SMOAK & STEWART, P.C., pro hac vice & W. Scott Mitchell -- smitchell@hollandhart.com -- HOLLAND & HART. RAINBOW DISPOSAL: Hurtado Seeks to Certify Class ------------------------------------------------ In the class action lawsuit captioned as ANTONIO HURTADO, et al., the Plaintiffs, vs. RAINBOW DISPOSAL CO., INC. EMPLOYEE STOCK OWNERSHIP PLAN COMMITTEE, et al., the Defendants, Case 8:17-cv-01605-JLS-DFM (C.D. Cal.), the Plaintiffs will move the Court on March 22, 2019, for an order certifying a class of: "all persons who were vested participants in the Rainbow Disposal Co., Inc. Employee Stock Ownership Plan as of October 1, 2014 and the beneficiaries of any such participants." Excluded from the Class are Defendants and persons who were named fiduciaries of the Rainbow ESOP, who are alleged to have engaged in prohibited transactions or breaches of corporate fiduciary duties, or who had decision-making or administrative authority relating to the administration, modification, funding, or 15 interpretation of the Rainbow ESOP, or relating to the decision to sell Rainbow.[CC] Attorneys for Plaintiffs: Joseph Creitz, Esq. CREITZ & SEREBIN LLP 100 Pine St., Suite 1250 San Francisco, CA 94111 Telephone: (415) 466-3090 E-mail: joe@creitzserebin.com - and - R. Joseph Barton, Esq. Vincent Cheng, Esq. BLOCK & LEVITON LLP 1735 20th Street NW Washington, DC 20009 Telephone: (202) 734-7046 E-mail: jbarton@blockesq.com vincent@blockesq.com RAMS: Settles Class Action Over St. Louis Seat Licenses ------------------------------------------------------- Joe Harris, writing for Courthouse News Service, reported that the Los Angeles Rams will pay up to $24 million to former personal seat license owners in St. Louis and another $7.4 million in attorney's fees and expenses to settle a class action over the football team's relocation. The figures were released in a motion for preliminary approval filed in St. Louis federal court on Dec. 5. Personal seat licenses, or PSLs, were a one-time fee that gave the buyer the right to buy season tickets to Rams games in St. Louis, which didn't include the price of the ticket. The original PSLs were good for 30 years, but the Rams moved to Los Angeles in January 2016 after just 21 seasons. The settlement awards PSL holders the equivalent of nine years' worth of their PSL purchase price. The value of the PSL varied depending on the seat so the amount that each class member will receive will range from as low as $75 to up to several thousand dollars. Fernando Bermudez, an attorney for one of the firms representing the plaintiffs, said it was a good deal for PSL holders. "Of course, we would have wanted more," Mr. Bermudez told the St. Louis Post-Dispatch. "Of course the Rams would have wanted less. But with the help of a former Missouri Supreme Court judge (Ray Price), we came to a figure that is reasonable and that everyone could live with." (Parentheses in original.) Judge Price served as mediator in the case. Attorneys representing the Rams did not immediately respond to emails sent on Dec. 6 seeking comment. The settlement covers several class actions filed by disgruntled St. Louis football fans in the immediate aftermath of the Rams departure for more lucrative California soil. The lawsuits were eventually consolidated into one. There are two classes within the settlement. There is the "FANS class" representing original PSL holders who bought season tickets from the FANS Inc. civic group when the team moved to St. Louis. The other is the "Rams class" representing PSL owners who bought their PSLs after March 31, 1996, when the Rams took over the PSL process. Since the wording in those contracts was different, the legal arguments for each class differed. However, the award money is the same for both classes. The Rams still face a lawsuit from St. Louis over the move to L.A., claiming the Rams and the National Football League failed to meet the league's own relocation guidelines. A motion by the Rams to have the matter moved to arbitration was recently denied by a Missouri appeals court. RENZENBERGER INC: Ford Labor Suit to Recover Unpaid Overtime Wages ------------------------------------------------------------------ Roniesha Ford, individually, and on behalf of all others similarly situated, Plaintiff, v. Renzenberger, Inc., Defendant, Case No. 18-cv-02660, (D. Kan., December 5, 2018) seeks to recover unpaid straight time and overtime compensation for all working hours, liquidated and/or other damages, attorneys' fees, costs and expenses pursuant to the Fair Labor Standards Act. Ford worked at Hallcon's location in Lenexa, KS as a non-exempt hourly employee. Hallcon failed to pay Ford the proper amount of overtime compensation due, says the complaint. [BN] Plaintiff is represented by: Matthew E. Osman, Esq. Kathryn S. Rickley, Esq. OSMAN & SMAY LLP 8500 W. 110th St., Ste. 330 Overland Park, KS 66210 Tel: (913) 667-9243 Fax: (866) 470-9243 Email: krickley@workerwagerights.com mosman@workerwagerights.com ROYALTY PUPPIES: Inda Seeks Unpaid Wages, Commissions ----------------------------------------------------- Alexa Marie Inda, on behalf of herself and all others similarly situated v. Royalty Puppies LLC et al., Case No. 1:18-cv-24855 (S.D. Fla., November 20, 2018), seeks to recover damages under the Fair Labor Standards Act. The Plaintiff alleges willful violations of overtime wages and unpaid commissions by the Defendants. The Plaintiff was employed by the Defendants as a non-exempt retail employee who sold dogs, dog accessories and products to the retail public. The Plaintiff was employed from on or about August 2, 2018 through November 11, 2018. The Defendants operated the business which sold dogs to the public within the Southern District of Florida. [BN] The Plaintiff is represented by: Daniel T. Feld, Esq. LAW OFFICE OF DANIEL T. FELD, P.A. 2847 Hollywood Blvd. Hollywood, FL 33020 Tel: (954) 361-8383 E-mail: DanielFeld.Esq@gmail.com - and - Isaac Mamane, Esq. MAMANE LAW LLC 10800 Biscayne Blvd., Suite 350A Miami, FL 33161 Tel: (305) 773 - 6661 E-mail: mamane@gmail.com RWI TRANSPORTATION: Craft Settlement Has Final Court Approval ------------------------------------------------------------- The United States District Court for the Central District of California issued an Order granting Plaintiffs' Motion for Final Approval of Class Action Settlement in the case captioned LARRY CRAFT, an individual; on behalf of himself and all others similarly situated, Plaintiffs, v. RWI TRANSPORTATION, LLC a California corporation and DOES 1 through 50, inclusive, Defendants. Case No. 2:17-cv-05289-SVW. (C.D. Cal.). This Court finds that the Settlement Agreement is the product of good faith arms-length negotiations by the Parties, each of whom was represented by experienced counsel. The Court finds that the class proposed for purposes of the Settlement meets the requirements of Fed. R. Civ. P. 23(a), and 23(b)(2) and (3), and hereby certifies a Settlement Class in the Action as follows: All individuals who Defendant classified as independent contractors who drove under load for RWI and/or whose tractor was driven under load from RWI to or from California under RWI's DOT authority at any time from June 19, 2013, through March 31, 2018. The Court approves all terms set forth in the Settlement Agreement and the Settlement reflected therein, and finds that such Settlement is, in all respects, fair, reasonable, adequate and in the best interests of the Settlement Class Members, and the Parties to the Settlement Agreement are directed to consummate and perform its terms. The settlement of civil penalties under PAGA in the amount of Twenty-Five Thousand Dollars ($25,000) is hereby approved. Seventy-Five Percent (75%), or $18,750, shall be paid to the California Labor and Workforce Development Agency. The remaining Twenty-Five Percent (25%), or $5,250, will be paid to Participating Class Members. The Court approves settlement administration costs and expenses in the amount of $12,000 to CPT Group, Inc. A full-text copy of the District Court's November 26, 2018 Order is available at https://tinyurl.com/yd443sjq from Leagle.com. Larry Craft, an individual, on behalf of himself and all others similarly situated, Plaintiff, represented by Anastasia Kinney Mazzella -- am@kbklawyers.com -- Kabateck LLP, Brian S. Kabateck -- bsk@kbklawyers.com -- Kabateck LLP & Shant Arthur Karnikian -- sk@kbklawyers.com -- Kabateck LLP. RWI Transportation, LLC, Defendant, represented by Angela J. Rafoth -- arafoth@littler.com -- Littler Mendelson PC, Carlos Jimenez -- cajimenez@littler.com -- Littler Mendelson PC, Gary E. Becker -- gary.becker@dinsmore.com -- Dinsmore and Shohl LLP, pro hac vice, Julie A. Stockton -- jstockton@littler.com -- Littler Mendelson PC, Richard H. Rahm -- rrahm@littler.com -- Littler Mendelson PC & Susan H. Jackson, Dinsmore and Shohl LLP, pro hac vice. SAMSUNG ELECTRONICS: Judge Tosses 2nd Amended Class Action ---------------------------------------------------------- Robert Kahn, writing for Courthouse News Service, reported that U.S. District Judge Lucy Koh dismissed with prejudice a second amended class action against Samsung Electronics, in which consumers claimed that the resale value of Galaxy smartphones declined because Samsung infringed patents held by Apple. SAMUEL SPICER: Md. App. Certifies Question in Price MCLL Suit ------------------------------------------------------------- In the case, WILLIAM PRICE, ET AL. v. RALPH M. MURDY, et al, Misc. No. 1 September Term, 2018 (Md. App.), Judge Mary Ellen Barbera of the Court of Appeals of Maryland held that Courts and Judicial Proceedings Article ("CJP") Section 5-102 is a statutory specialty and actions on it are accorded a 12-year limitations period. The Court is presented with a question of law certified by the U.S. District Court for the District of Maryland pursuant to the Maryland Uniform Certification of Questions of Law Act, Sections 12-601 to 12-613 of the CJP, Maryland Code. The question posed is whether a Maryland statute -- the licensing requirement of the Maryland Consumer Loan Law, Section 12-302 of the Commercial Law Article ("CL"), Maryland Code -- is a statutory specialty as contemplated by CJP Section 5-102(a)(6). Plaintiffs, Price and Chovan, consumers who financed the purchase of automobiles through loans under $6,000, brought a putative class action against the lender, Samuel Spicer, for violations of the Maryland Consumer Loan Law ("MCLL"). They allege that Spicer was not licensed to enter into these loans under the MCLL. The Plaintiffs further allege that Spicer violated the MCLL by: (1) failing to provide any notices related to repossession of cars; (2) charging and collecting compound interest; and (3) charging and collecting inflated or uncollectable attorneys' fees. The Plaintiffs claim that they entered into loans with Spicer while he was unlicensed, but all of the loan transactions occurred over three years before the instant lawsuit was filed on March 17, 2017. The general statute of limitations for civil actions is three years. CJP Section 5-102(a)(6), however, provides a 12-year statute of limitations for causes of action brought under a specialty statute. The Plaintiffs assert that the MCLL is another specialty, and therefore the 12-year statute of limitations applies to their claims. Spicer, on the other hand, maintains that the MCLL is not a specialty, and therefore the three-year statute of limitations applies. As a result, Spicer contends, the Plaintiffs' MCLL claims are time-barred. The District Court determined that the limitations issue involves a question of unresolved Maryland law and, therefore, certified the following question to the Court: Whether the MCLL Section 12-302's licensing requirement is an "other specialty" subject to Maryland's 12-year limitations period under CJP Section 5-102(a)(6). In Master Fin., Inc. v. Crowder, the Court laid out a test for determining whether a statute creates an "other specialty" under CJP Section 5-102(a)(6): An action based on a statute will constitute an other specialty subject to the 12-year period of limitations if (1) the duty, obligation, prohibition, or right sought to be enforced is created or imposed solely by the statute, or a related statute, and does not otherwise exist as a matter of common law; (2) the remedy pursued in the action is authorized solely by the statute, or a related statute, and does not otherwise exist under the common law; and (3) if the action is one for civil damages or recompense in the nature of civil damages, those damages are liquidated, fixed, or, by applying clear statutory criteria, are readily ascertainable. The parties agree that the second prong of the Crowder test -- whether the remedy pursued is authorized solely by the statute and does not otherwise exist at common law -- is not at issue, so Judge Barbera examines the MCLL and its licensing requirement under the first and third prongs. As to the first prong one, Spicer argues that the licensing requirement is not created and imposed solely by the MCLL. Spicer does not dispute that the common law contained no licensing requirement but sees it as a means of enforcing the common law right of redress by a party to a usurious loan, recognized for centuries by Maryland courts. The Judge finds the Appellee's view as too narrow. She holds that the MCLL's licensing requirement -- coming as part of a statutory scheme that, like the State Secondary Mortgage Loan Law ("SMLL"), governs licensing, the amount of a loan, misleading advertising, discrimination, maximum interest rates, permissible fees, attorney's fees, and lender's disclosure duties, Section 12-301 to 12-317 -- was "created and imposed solely" by statute and not by common law. Turning to the third prong, the Appellee argues that the damages are not liquidated, fixed, or, by applying clear statutory criteria, readily ascertainable. The Appellee bases the argument on the MCLL's remedy that a person who is neither a licensee nor exempt from licensing may not receive or retain any principal, interest, or other compensation with respect to any loan that is unenforceable under the subsection. The Appellants respond by saying that the fact finding with respect to 'statutory specialties' damages is a common occurrence. The Judge agrees with the Appellants. She finds that the need for fact-finding does not preclude ready ascertainment. The Appellants correctly identify how the fact-finder will "resolve" liability "based on the relevant documents": all amounts paid by the Appellants Price and Chovan to Appellee Spicer on each MCLL loan. The Appellee may be right that the interest, costs, or other charges, recoverable by a borrower under the SMLL are more easily ascertainable -- documented on forms required by the United States Department of Housing and Urban Development -- but that does not mean that MCLL borrowers' payments are not readily ascertainable. Therefore, the third Crowder element is satisfied by the MCLL. Finally, the Appellee contends that the MCLL's enactment without a specific limitations period in 1975, after the enactment in 1973 of CJP Section 5-101's three-year "blanket" limitations period, indicates the General Assembly's intent that CJP Section 5-101 applies rather than CJP Section 5-102. The Judge finds this contention as flawed for several reasons. First, CJP Section 5-102 was also passed in 1973, and its predecessor statute dates to 1924. The same logic, therefore, applies to the MCLL's relationship with both limitations statutes. Second, the MCLL was not a new law in 1975, but previously existed in a different place in the Maryland Code and under a different name. Therefore, the language in NVR Mortg. Fin., Inc. v. Carlsen about statutes passed after CJP Section 5-101 is inapposite. Third, Carlsen observed that the order of statutes' passage is only "evidence" of the General Assembly's intent, not that such evidence is dispositive, or even a weighty consideration. For the foregoing reasons, Judge Barbera held that the MCLL's licensing requirement is an "other specialty" within the meaning of CJP Section 5-102(a)(6) and that a claim brought on it is entitled to a twelve-year limitations period. She therefore answered "yes" to the question certified by the District Court. A full-text copy of the Court's Dec. 18, 2018 Opinion is available at https://is.gd/e3BU7q from Leagle.com. SENDGRID INC: Chen Files Suit Over Twilio Merger Deal ----------------------------------------------------- Rick Chen on behalf of himself and 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. 18-cv-03131 (D. Colo., December 5, 2018) seeks (i) to enjoin defendants and all persons acting in concert with them from proceeding with, consummating or closing the acquisition of SendGrid, Inc. by Twilio Inc. and Topaz Merger Subsidiary, Inc., (ii) rescinding it in the event defendants consummate the merger, (iii) rescissory damages, (iv) costs of this action, including reasonable allowance for plaintiff's attorneys' and experts' fees, and (v) such other and further relief under the Securities Exchange Act of 1934. Under the terms of the merger agreement, SendGrid will become an indirect wholly-owned subsidiary of Twilio, and SendGrid stockholders will receive 0.485 shares of Twilio Class A common stock for each share of SendGrid common stock they own, resulting in a merger consideration of approximately $36.92 per share of SendGrid common stock based upon the closing price of Twilio Class A common stock on October 15, 2018, the day preceding the announcement merger agreement. The transaction was valued at approximately $2 billion. SendGrid operates a cloud-based platform that provides various tools to the businesses such as email application programming interface, marketing campaigns and email campaigns. The complaint says Defendants agreed to lock up the merger with preclusive and onerous deal protection devices that preclude other bidders from making successful competing offers for the company. Company board members and executive officers will be getting lucrative change-in-control agreements upon the termination of their employment, it notes. The registration statement also omitted the sales process and particular certain conflicts of interest for management, as well as financial projections provided by Morgan Stanley & Co LLC and Twilio's financial advisor Goldman Sachs & Co. LLC, the complaint relates. [BN] Plaintiff is represented by: Marc L. Ackerman, Esq. BRODSKY & SMITH, LLC Two Bala Plaza, Suite 510 Bala Cynwyd, PA 19004 Phone: (610) 667-6200 Facsimile: (610) 667-9029 Email: mackerman@brodskysmith.com SENTOSA NURSING: Filipino Nurses' Class Action Can Proceed ---------------------------------------------------------- Staffing Industry Analysts reports that Filipino nurses previously recruited by Sentosa Nursing Recruitment Agency and a related entity, Prompt Nursing Employment Agency LLC, can move forward with a class-action lawsuit alleging the agencies abused the legal system and violated the Trafficking and Violence Protection Act by forcing nurses to pay a $25,000 fee if they left their positions before the end of a three-year term. McKnight's Long-Term Care News reported the US District Court for the Eastern District of New York on Nov. 28 certified the complaint, and a notice is now being sent to more than 200 Filipino nurses who were previously recruited. [GN] SPRINT/UNITED: Court Certifies Three Classes in Caudle Suit ----------------------------------------------------------- In the class action lawsuit captioned as JOSHUA CAUDLE and KRYSTLE WHITE, individually and on behalf of all others similarly situated, the Plaintiffs, vs. SPRINT/UNITED MANAGEMENT COMPANY, a Kansas corporation; and DOES 1 through 100, the Defendants, Case No. 3:17-cv-06874-WHA (N.D. Cal.), the Hon. Judge William Alsup entered an order on December 18, 2018: 1. granting Plaintiff's motion for class certification of: Class 1 (Unlawful Deductions – SPS Class): "all current and former employees of Sprint who worked at Sprint's retail store location(s) in California and whose compensation was based in full or in part on incentive compensation (also called "commissions"), and whose commissions were reduced by a Sprint Promoter Score Adjustment, at any time from February 2016 to March 2017"; Class 2 (Wage Statement Class): "all members of the Unlawful Deductions – SPS Class whose commissions were reduced by a Sprint Promoter Score Adjustment at any time from September 29, 2016 through March 2017"; and Class 3 (Waiting Time Class): "all members of the Unlawful Deductions – SPS Class who separated their employment from Sprint at any time from September 29, 2014 through the present."; 2. appointing Joshua Caudle and Krystle White as class representatives; 3. appointing Haines Law Group, APC as class counsel. 4. direcrtintg parties to jointly submit a proposal for class notification with a plan to distribute notice, including by first-class mail by Jan. 4, 2019 at noon; and 5. reminding counsel of Plaintiffs' intention of notifying class members of the tolling issue in connection with the removed deactivation theory of liability. The Court said. "Both sides request judicial notice of various documents previously filed in three other cases involving class action settlements with Sprint. Neither side opposes. A court may judicially notice a fact that is not subject to reasonable dispute because it "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Accordingly, the requests for judicial notice of documents are Granted. Sprint also objects to several items of evidence submitted with plainitffs’ motion. Because consideration of the objected-to materials does not impact the outcome of this order, Sprint’s objections are overruled as moot."[CC] STATE FARM: Court OKs Dismissal of Cranfield Suit ------------------------------------------------- The United States District Court for the Northern District of Ohio, Eastern Division, issued an Opinion and Order granting Defendant's Motion to Dismiss in the case captioned CHARLES CRANFIELD, individually and on behalf of all others similarly situated, Plaintiff, v. STATE FARM FIRE & CASUALTY COMPANY, Defendant. Case No. 1:16CV1273. (N.D. Ohio). This matter comes before the Court following Defendant State Farm Fire & Casualty Company's (State Farm) Motion to Dismiss with prejudice. Cranfield filed a class action lawsuit alleging one count of Breach of Contract against State Farm with the Cuyahoga County Court of Common Pleas. Cranfield's home was damaged by a storm and he submitted a claim to State Farm requesting coverage. An adjuster inspected the damage and an estimate for repair was sent to Cranfield. The total estimated cost to repair the damage, the replacement cost value, was $4,044.86. State Farm calculated the depreciation amount at issue in this case to be $1,348.57. It subtracted this amount and Cranfield's deductible of $1,854.00 from the replacement cost value to arrive at a Net ACV of $842.29, which Cranfield received in two payments. No Ambiguity Exists in the Contract Ambiguity exists when a term is subject to more than one reasonable interpretation. Ambiguous provisions will be construed strictly against the insurer and liberally in favor of the insured. However, courts cannot create ambiguity if none exists. Plain Meaning Analysis of ACV Actual Cash Value (ACV) has been defined as replacement cost minus normal depreciation or fair market value. Either of these definitions could fit within the contract clause without resulting in absurdity. In fact, in the estimate provided to Cranfield that was included with the Complaint, State Farm defined Net ACV in a similar manner. Cranfield seeks to limit the definition of ACV to exclude labor from depreciation. However, there is nothing within the text of the contract to indicate that this was the intent of the parties at the time that the contract was formed. Further, the plain meaning of depreciation is inclusive of labor. The ordinary meaning of depreciation has been defined as a reduction in the value or price of something; specif., a decline in an asset's value because of use, wear, obsolescence, or age. A depreciation method is a set formula used in estimating an asset's use, wear, or obsolescence over the asset's useful life or some portion thereof. As evidenced by Black's Law Dictionary, depreciation commonly focuses on the value of the whole product, rather than the component parts. Therefore, as used in the policy, ACV cannot reasonably be interpreted to exclude labor from a depreciation calculation. Ohio Case Law Analysis of ACV When contractual terms are undefined, courts also look to Ohio case law to determine their meaning. Here, support also exists for finding ACV is unambiguous. The term ACV has been used in Ohio insurance case law for over 150 years. Like Black's Law Dictionary, Ohio law has defined ACV to mean either the market value of the property at the time of the loss or the cost of repair or replacement less depreciation for age and condition. Additionally, the exact same language found in the policy at issue has been determined to be clear and unambiguous by an Ohio appellate court. While persuasive authority, these appellate court decisions lend support to a clear and unambiguous finding. Analysis of Ohio Administrative Code Definition of ACV Here, the Court finds that the regulation outlining the method to determine ACV is clear and unambiguous. Further, because the regulation states less any depreciation, a plain meaning analysis of ACV in this regulation requires an inclusive definition of depreciation. Read naturally, the word any has an expansive meaning. There are no stated limitations or exclusions. Therefore, it is reasonable for the Court to interpret depreciation to include labor as well as materials. Since no ambiguity exists in the contract and a calculation of the ACV could depreciate labor as well as materials, there is no breach of contract as a matter of law. Therefore, the Court grants State Farm's Motion to Dismiss with prejudice. A full-text copy of the District Court's November 26, 2018 Opinion and Order is available at https://tinyurl.com/y8gooc9u from Leagle.com. Charles Cranfield, individually and on behalf of all other Ohio residents similarly situated, Plaintiff, represented by Daniel P. Goetz -- dgoetz@weismanlaw.com -- Weisman, Kennedy & Berris, James A. DeRoche, Garson Johnson, James S. Timmerberg, Dworken & Bernstein, Patrick J. Perotti -- pperotti@dworkenlaw.com -- Dworken & Bernstein & R. Eric Kennedy -- ekennedy@weismanlaw.com -- Weisman, Kennedy & Berris. State Farm Fire and Casualty Company, Defendant, represented by Benjamin C. Sasse -- benjamin.sasse@tuckerellis.com -- Tucker Ellis, Brian J. Neff, Riley Safer Holmes & Cancila, Heidi Dalenberg -- hdalenberg@rshc-law.com -- Riley Safer Holmes & Cancila, Joseph A. Cancila -- jcancila@rshc-law.com -- Riley Safer Holmes & Cancila, Karl A. Bekeny -- karl.bekeny@tuckerellis.com -- Tucker Ellis, Paul L. Janowicz -- paul.janowicz@tuckerellis.com -- Tucker Ellis, Robert C. Tucker -- robert.tucker@tuckerellis.com -- Tucker Ellis & Ryan P. Poscablo -- rposcablo@rshc-law.com -- Riley Safer Holmes & Cancila. STONY HOLLOW: Beck Settlement Has Final Court Approval ------------------------------------------------------ The United States District Court for the Southern District of Ohio issued an Order granting Plaintiffs' Motion to Final Approval of the Settlement Agreement in the case captioned CARLY BECK, on behalf of herself and all others similarly situated, Plaintiff, v. STONY HOLLOW LANDFILL, INC., Defendant. Case No. 3:16-cv-455. (S.D. Ohio). The Named Plaintiff, on behalf of herself and the Settlement Class Members, seeks final approval of the Settlement Agreement in its entirety, including an award of attorneys' fees and expenses to Class Counsel, an incentive award to Named Plaintiff, and the allocation of the remaining funds to the Settlement Class Members. Having considered that a class action settlement should be approved only if it is fair, reasonable, and adequate after comparing the terms of the settlement with the likely rewards of litigation, having considered that, in assessing the reasonableness and adequacy of a settlement in a class action, the Sixth Circuit has instructed district courts to consider the following factors: (a) the risk of fraud or collusion;(b) the complexity, expense, and likely duration of the litigation;(c) the amount of discovery engaged in by the parties;(d) the likelihood of success on the merits;(e) the opinions of class counsel and class representatives;(f) the reaction of absent class members; and(g) the public interest. Having considered the substance and amount of opposition to the proposed settlement, it is hereby determined that: (i) the Settlement was entered into in good faith being fairly and honestly negotiated; (ii) the outcome of the Litigation is in doubt; (iii) it is possible the proposed Settlement Class could receive more if the Litigation were to go through trial, but that it is also quite possible that the proposed Settlement Class could receive less and/or that Defendant could defeat certification. (iv) the value of immediate recovery outweighs the possibility of future relief which would likely occur, if at all, only after further protracted litigation and appeals. (v) the parties have in good faith determined the Settlement Agreement is in their respective best interests, including both the Named Plaintiff and Class Counsel determining that it is in the best interest of the Settlement Class Members. (vi) the aggregate consideration, including both the Settlement Fund to which Defendant shall contribute and the improvement measures that the Defendant will implement before the end of 2022, is commensurate with the claims asserted and that will be released as part of the settlement, and (vii) the proposed Settlement Agreement's terms fall well within the range of settlement terms that would be considered fair, reasonable, and adequate resolution of the Litigation. Therefore, pursuant to Rule 23(e), the terms of the Settlement Agreement relating to the above-captioned Litigation are hereby finally approved as fair, reasonable, and adequate as to, and in the best interest of, the Settlement Class and each of the Settlement Class Members, in light of the factual, legal, practical, and procedural considerations raised by this Litigation. The Court further finds that the Settlement Agreement complies with the applicable requirements under Ohio and Federal law, the Rules of the Court, any other applicable law, and due process requirements. A full-text copy of the District Court's November 26, 2018 Judgment and Order is available at https://tinyurl.com/y78a7mfm from Leagle.com. Carly Beck, Plaintiff, represented by Nicholas Coulson -- ncoulson@ldclassaction.com -- Liddle & Dubin, PC, pro hac vice, Steven Liddle, Liddle & Dubin, PC, pro hac vice & Daniel P. Petrov -- dpetrov@tpgfirm.com -- Thorman Petrov Group Co., LPA. Stony Hollow Landfill, Inc., Defendant, represented by Timothy David Hoffman -- tim.hoffman@dinsmore.com -- Dinsmore & Shohl LLP, Darin K. Waylett -- dwaylett@mcguirewoods.com -- pro hac vice, Eugene E. Mathews, III -- mmathews@mcguirewoods.com -- pro hac vice, R. Trent Taylor, McGuire Woods LLP, pro hac vice & Steve N. Siegel -- jdinsmore@mcguirewoods.com -- Dinsmore & Shohl LLP. SUNRISE DETOX III: Dunleavey Sues Over Illegal SMS Ads ------------------------------------------------------ Philip Dunleavey, individually and on behalf of all others similarly situated, Plaintiff, v. Sunrise Detox III, LLC, Defendant, Case No. 18-cv-25090 (S.D. Fla., December 5, 2018), seeks injunctive relief, statutory damages and any other available legal or equitable remedies for violations of the Telephone Consumer Protection Act. Defendant operates a center for drug and alcohol detox. Sunrise sent text messages to Dunleavey's cellular telephone number in an attempt to promote its services using an automatic telephone dialing system. [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 SYKES ENTERPRISES: Kronzer FCRA Suit Moved to M.D. Florida ---------------------------------------------------------- A case, William Kronzer, on behalf of himself and on behalf of all other similarly situated, the Plaintiff, vs. Sykes Enterprises, Incorporated, a Florida corporation, the Defendant, Case No.: 18-CV-11017 (Filed 8, 2018), was removed from the 13th Judicial Circuit, Hillsborough County, to the U.S. District Court for the Middle District of Florida (Tampa). The Middle District of Florida Court Clerk assigned Case No.: 8:18-cv-02939-MSS-JSS. The suit alleges Fair Credit Reporting Act violation. The case is assigned to the Hon. Judge Mary S. Scriven. Sykes Enterprises, Incorporated is an American multinational corporation headquartered in Tampa, Florida. The company provides business process outsourcing services, IT consulting and IT-enabled services, such as technical support and customer service. Attorneys for Plaintiff: Marc Reed Edelman, Esq. MORGAN & MORGAN, PA One Tampa City Center Ste 700 201 N Franklin Street Tampa, FL 33602-5157 Telephone: (813) 223-5505 Facsimile: (813) 257-0572 E-mail: MEdelman@forthepeople.com Attorneys for Defendant: Hugo Samuel DeBeaubien, Esq. Jaime Austrich, Esq. SHUMAKER, LOOP & KENDRICK, LLP 101 E Kennedy Blvd Ste 2800 Tampa, FL 33602 Telephone: (813) 229-7600 Facsimile: (813) 229-1660 E-mail: bdebeaubien@slk-law.com jaustrich@slk-law.com TICKETMASTER: Defends Class Action Over Ticket Scalpers ------------------------------------------------------- Eriq Gardner, writing for Hollywood Reporter, reports that to buy tickets, the live events giant argues, customers also agree to waive any right to a jury trial and to binding arbitration. Ticketmaster has turned to the fine print in order to save itself from a putative class action that alleges the company actively encourages the sale of tickets on the secondary market. Allen Lee is among ticket buyers now suing Ticketmaster and its parent, Live Nation, after undercover reporters from Canada's CBC and the Toronto Star detailed how Ticketmaster facilitates scalpers in order to gain a second cut on sales. The lawsuit claims violations of the Cartwright Act, California Penal Code and unfair and fraudulent business practices. To head off any situation where plaintiffs may gang up on the company in open court, Ticketmaster now points in a brief filedon Nov. 30 to the "clickwrap" terms of use that Lee assented to when purchasing secondary tickets to numerous sporting events. The defendants maintains that "the applicable Terms contained a provision by which Plaintiffs expressly agreed to submit their claims to binding arbitration, and waive any right to a jury trial or to participate in a class action." Ticketmaster argues that such terms of use constitute a valid, enforceable agreement and that the arbitration clause encompasses the dispute at issue. Mr. Lee's "claims plainly relate to 'products or services sold or distributed by [Ticketmaster] or through [Ticketmaster],' within the meaning of the ticketmaster.com Terms of Use," argue the company's lawyers at Latham & Watkins. Most courts have upheld clickware agreements so long as they are conspicuous enough, although Spotify lost a ruling a couple years ago for the unconscionable way it had modified terms without proper notice. Plaintiffs lawyers will now argue against compelled arbitration, while renewed attention to Ticketmaster's alleged cooperation with scalpers has some calling for new legislation. [GN] TIGER BRANDS: Lawyers to File Listeriosis Class Action Next Year ---------------------------------------------------------------- Bonga Dlulane, writing for Eyewitness News, reports that lawyers for the claimants against Tiger Brands following the listeriosis outbreak say they're aiming to file their class action suit by early next year. This comes after a South Gauteng High Court granted Richard Spoor Attorneys the go ahead to sue the food producer for damages and liability. A Tiger Brands factory in Polokwane was identified as the source of the outbreak that led to the deaths of 189 people. The company says that it will cooperate with the process and fork out up to R1 million for a toll-free call centre and adverts to inform listeriosis victims to join the class action. Richard Spoor Attorneys' Thamsanqa Malusi explains: "We're planning to file our papers with regards to the liability of Tiger Brands in January. They're going to have to plea on that. That means they accept or agree that they're liable for the outbreak. We anticipate that process in totality including the discovery process should take about eight to nine months." Meanwhile, Tiger Brands spokesperson Mary-Jane Morifi won't confirm or deny they might settle out of court. "What I can confirm is that we will work with the legal process and follow legal due process to ensure we come out to an outcome that provides closure to both parties in the matter." [GN] TIGER BRANDS: To Cooperate with Listeriosis Class Action -------------------------------------------------------- Khulekani Magubane, writing for fin24, reports that Tiger Brands [JSE:TBS] says it will follow the legal process to bring closure to all parties, after the South Gauteng High Court allowed the initiation of a class action suit over an outbreak of listeriosis earlier this year. No liability has been established yet, the company reiterated. The court determined that Richard Spoor Attorneys could go ahead with its class action application representing over a thousand people affected by the listeriosis outbreak that infected as many people and killed 200. Tiger Brands chief corporate affairs officer Mary Jane Morifi said in a statement that the company would support the class action notice process to ensure that anyone with a legitimate claim could be informed of the class action. In the statement, which was released shortly after the company's SENS announcement affirming the certification of the class action application, Tiger Brands said it was still to be determined whether or not Tiger Brands was at fault in the eyes of the court for those affected by listeriosis. "Tiger Brands reiterates that no liability has been established against the company for the listeriosis outbreak. "However, should liability be determined, the company will respond appropriately to any legitimate claims," the statement said. Ms. Morifi said the R1m that the company extended to assist in supporting the class action process, and a hotline to facilitate it, was a sign that the company was committed to finding a resolution for everyone affected. "We are committed to ensuring that the legal process runs smoothly and as quickly as possible. In managing the application for the certification of the class action in this manner, we have been able to substantially shorten the time taken for this part of the legal process," said Ms. Morifi. Ms. Morifi said Tiger Brands remained committed to following the legal process to bring closure to all parties as soon as possible. [GN] TRES DIAMANTE RESTAURANT: Flores et al. Seek Minimum & OT Wages --------------------------------------------------------------- ELSY FLORES, EMMA GARCIA, JONATAN ORELLANA, BERNARDA MARTINEZ, ERIKA MORALES, INGRID SAGASTUME, and YOLANDA MARTINEZ, individually and on behalf of all others similarly situated, the Plaintiffs, vs. TRES DIAMANTE RESTAURANT INC. d/b/a THREE DIAMONDS RESTAURANT a/d/b/a TRES DIAMANTES RESTAURANT a/d/b/a LOS TRES DIAMANTES RESTAURANTE, NUEVO DIAMANTE, INC. d/b/a EL NUEVO DIAMANTE a/d/b/a EL NUEVO DIAMANTE RESTAURANT a/d/b/a NUEVO DIAMANTE RESTAURANT, SANTATECLA RESTAURANT INC. d/b/a LA JOLLA DE ORO, ROSABEL CALDERON, and JOSE ALFREDO MANCIA, the Defendants, Case No. 2:18-cv-06949-SJF-GRB (E.D.N.Y., Dec. 6, 2018), seeks equitable and legal relief for Defendants' violations of the Fair Labor Standards Act of 1938 and the New York Labor Law. According to the complaint, the Plaintiff worked for Defendants as a server at Three Diamonds from in or around November 2016 until on or around August 17, 2018. As a server, Flores' primary job duties included cleaning bathrooms and tables, sweeping the floors, throwing out the trash, preparing drinks and salads, and serving food and beverages to customers. Throughout her employment with Defendants, Flores regularly worked three days per week, as follows: Fridays and Saturdays from 9:00 a.m. until 12:00 a.m., and Sundays from 9:00 a.m. until 10:00 p.m., for a total of approximately 43 hours per week. Flores was not afforded meal or rest breaks during her shifts. Throughout her employment, Flores was paid a fixed daily wage of $40.00, regardless of the number of hours she worked. Based on Flores' compensation and hours worked per week, Flores' regular rate of pay routinely fell below the applicable federal and/or state minimum wage rates. Although Flores received gratuities from the patrons she served, the amount of tips Plaintiff received, when combined with her wages, still often fell below the applicable minimum wage rates. Moreover, Defendants did not pay Flores additional compensation for the hours she worked in excess of 40 per week, the lawsuit says. Three Diamonds also known as Tres Diamontes Restorante features both American and Latin American cuisine and cocktails.[BN] Attorneys for Plaintiffs: Adam Sackowitz, Esq. KATZ MELINGER PLLC 280 Madison Avenue, Suite 600 New York, New York 10016 Telephone: (212) 460-0047 Facsimile: (212) 428-6811 E-mail: ajsackowitz@katzmelinger.com TRINITY RESTAURANT: Conditional Certification Bid, Partly Granted ----------------------------------------------------------------- In the class action lawsuit captioned as MERCEDES WHITFIELD, the Plaintiff, vs. TRINITY RESTAURANT GROUP, LLC, the Defendant, Case No. 2:18-cv-10973-DML-EAS (E.D. Mich.), the Hon. Judge David M. Lawson entered an order: 1. granting in part the Plaintiff's motion for conditional certification of her Fair Labor Standards Act claims as a collective action defined as: "all current and former servers who worked for Trinity Restaurant Group, LLC at its IHOP restaurants in Detroit, Mount Pleasant, and Saginaw at any time during the last three years"; 2. denying without prejudice the Plaintiff's motion for conditional certification of collective action with respect to the Defendant's other restaurant locations. The Court said, "The form and dissemination of notice is left to counsel to negotiate. The Court has reviewed the parties' submissions and heard oral argument on December 17, 2018. At the conclusion of the hearing, the Court announced from the bench its decision to grant in part the motion, finding that the plaintiff had made a sufficient factual showing to support conditional certification as to three of the defendant's restaurants. The Court denied the motion without prejudice as to the eleven other restaurants. The Court also directed counsel to meet and confer on the form and dissemination of notice and to submit a joint proposal for Court approval."[CC] UBER TECHNOLOGIES: Drivers Petition to Compel Arbitration --------------------------------------------------------- Robert Kahn, writing for Courthouse News Service, reported that a class of 12,501 Uber drivers petitioned to compel arbitration, claiming the company misclassifies them as independent contractors to deny them employment benefits. UNITED STATES: Settlement Restores Migrants' US Asylum Rights ------------------------------------------------------------- Emilio Demetriou-Jones, writing for Latin Lawyer, reports that Hogan Lovells has worked pro bono to reach a class action settlement with the US government which guarantees forcibly separated migrant families have another chance to seek asylum in the country amid claims mandatory procedures were ignored. M M M v Sessions got a final settlement on 15 November. Dana Sabraw, the district judge who oversaw the case, called the settlement "fair, reasonable and adequate." The class action was triggered by the consequences of a preliminary injunction in another migrant case (Ms L v ICE) back in June. That injunction ordered US Immigration and Customs Enforcement to reunify migrant parents with their children. In Hogan Lovells' M M M v Sessions case, the claimants (migrant parents from Honduras and Guatemala) say the government responded to the Ms L v ICE injunction by giving them two choices: being reunified with their children and deported together; or being deported alone while their children make a claim. This resulted in many families agreeing to be deported together, but before their children had a chance to claim asylum through a "credible fear" interview. The right to a credible fear interview was at the heart of the M M M v Sessions case. These interviews are conducted with US border officials and establish fear of either persecution or torture. If interviewers find an individual was persecuted or has a well-founded fear of persecution because of their race, religion, nationality, social group, or political opinion, they can make an asylum claim before a judge. Hogan Lovells' argued the process is guaranteed by the Immigration and Nationality Act and the US Constitution's due process clause. M M M v Sessions was filed in July when the claimants sued several state agencies. They claimed their children's right to asylum through a credible fear interview had been ignored. They also said their own credible fear interviews had been conducted under emotional stress, having recently been separated from their children (US President Donald Trump's decision to send all adult migrants who crossed the border illegally for criminal prosecutions meant their children were incarcerated in different facilities). The 15 November settlement reinforces migrants' right to a credible fear interview. Now, children in independent removal proceedings will be assigned to their parents' case and can obtain their own credible fear interviews -- regardless of how their parents' interviews go -- if they also express fear of return. When parents already have received a positive credible fear finding, their children will join their asylum proceedings in immigration court. The settlement also means the migrant parents who attended credible fear interviews and received negative responses (resulting in a final order of removal) will have another interview as part of a "good faith review." Alternatively, if the parent received a negative finding after the good faith review was complete, their children would be entitled to their own interview. If the child's interview was positive, they would still have a chance to pursue asylum in immigration court, regardless of their parents' outcome. Zachary Best, a senior associate that worked on the settlement, told Latin Lawyer that the interviews were "fundamentally unfair by virtue of them being conducted after they were separated from their children." He adds that many, if not all, separated parents were unable to meaningfully participate in their original credible fear interviews because of the trauma, anxiety, and confusion caused by their children being separated from them. Best also criticises the government's willingness to deport children without giving them a credible fear interview. "Everybody who enters the country, legally or illegally, has to have some sort of pathway to seek asylum in the US," he says. "Those who enter without inspection are guaranteed an interview and many were not getting interviews." Hogan Lovells' offices in Miami, New York, Washington, DC, Mexico City, and Rio de Janeiro first got involved in the US migrant crisis by working with families detained at the Texan facilities in Karnes and Dilley from May to August. A team of more than 30 lawyers worked 13-hour shifts to prepare women and children separated along the US-Mexico border for their credible fear interviews. Best told Latin Lawyer that he and his colleagues got involved in the case for moral and legal reasons. "It is hard to imagine a more vulnerable group of people than those fleeing violence to come here, arriving with no money and in many cases, little knowledge of the language," he says. "The law should be there to protect them, and in this instance, it was not. As legal professionals, we have a duty to protect those who cannot protect themselves." Best adds that the majority of the families they counselled at the centre have managed to obtain favourable rulings from asylum officers. "Nearly all of the reunified families who were detained at the Karnes and Dilley detention centres in Texas that elected to go through the settlement procedures have now completed them. This means the parents have received their good faith reviews and the children have been screened for credible fear where necessary." Successfully seeking asylum in the US can be an arduous process, despite the recent settlement. If migrants obtain a favourable ruling in a credible fear interview, they are given a hearing date, which can be several months away. The individual then presents their case in more detail to an immigration judge, who grants a verdict. Decisions in favour of deportation can be appealed before a federal court. US president Donald Trump came under fire for immigration-related issues, after border agents sprayed tear gas at a crowd of migrants trying to cross the San Ysidro border. Trump has since defended the use of the gas and said that no one will enter the US "unless they come in legally." He added that many of the migrants, who include women and children, are "stone cold criminals." The US president also said that his government will "close the border permanently, if need be". Counsel to M M M: Partners Justin Bernick and Theodore Clark Weymouth and associate Zachary Best in Washington, DC, partners Oliver Armas and Ira Feinberg in New York, partner Michael Maddigan in Los Angeles, partner Katherine Nelson in Denver and associate Haley Costello-Essig in Northern Virginia. [GN] UNIVERSITY OF ARIZONA: Chemistry Professor Files Class Action ------------------------------------------------------------- Rachel Leingang, writing for Arizona Republic, reports that a University of Arizona chemistry professor has filed a class-action lawsuit alleging gender discrimination in pay and promotions at the Tucson campus. Dr. Katrina Miranda, a tenured associate professor in the school's Department of Chemistry and Biochemistry, claims in a lawsuit filed in U.S. District Court on Nov. 29 that there's a pattern of systematic discrimination against female faculty members in UA's College of Science. "Dr. Miranda has suffered substantial pay disparities as compared to her male counterparts, and the university has failed to promote her in an equivalent manner to these male peers," the lawsuit says. Dr. Miranda has worked at the university since 2002 and received tenure in 2008. The Arizona Board of Regents is named as the defendant in the lawsuit, as the board oversees UA. The lawsuit is the latest discrimination claim the university is facing. Earlier this year, Patricia MacCorquodale, former dean of the school's Honors College, sued, saying she was underpaid for two decades compared with male colleagues Another former dean, Janice Cervelli, later joined the lawsuit. The matter is ongoing in U.S. District Court. What the Miranda lawsuit seeks In the latest lawsuit, Miranda is seeking back pay, front pay, damages and attorneys' fees on behalf of herself and any others who could be included in the class action. The class could include as many as 80 current and former female professors in the College of Science, according to the lawsuit. Dr. Miranda's lawsuit says, despite positive performance reviews and recognition for her work and service to the university, she was underpaid and denied promotions. "Dr. Miranda's experiences are emblematic of these prevailing patterns and trends at the college. Despite her remarkable credentials and achievements, her pay has languished at inordinately low levels for years, and she has been denied a long-earned promotion to (full) professor," the lawsuit claims. The lawsuit estimates Dr. Miranda was underpaid by $9,000 to $36,000 per year from 2016 to 2018 compared with male professors of "similar or lesser seniority and performance." Dr. Miranda was paid about $100,000 for the 2017-18 academic year, while a male chemistry professor made $130,500 despite joining the university and getting tenure the same year as Dr. Miranda, the lawsuit claims. Another male chemistry professor with one year of experience more than Miranda made more than $136,000, according to the court filing. Females 'subjected to humiliating and demeaning treatment' The pay disparity stems from the college's policies and practices, the lawsuit says. Female professors are "subjected to humiliating and demeaning treatment" by male leaders and don't have equal access to resources like research assistants and mentoring opportunities. Dr. Miranda first complained to UA's Office of Institutional Equity in December 2017 about pay concerns, but the university did not act, according to the filing. Since Dr. Miranda complained of pay disparity to the university prior to filing a lawsuit, she claims the school "retaliated against her" by reducing lab space and removing her as instructor of a course she created, the lawsuit claims. The lawsuit points to a lack of female full professors. Although about half of the chemistry department's associate professors are women, only 12.5 percent of full professors are, the lawsuit says. Dr. Miranda was denied a promotion to full professor on the basis of gender, the lawsuit claims, citing a stricter standard than her male counterparts and irregularities in the review process. The lawsuit claims the university hasn't given substantial raises to female associate professors since 2011, but has granted raises to male associate professors in the department. The University of Arizona said it will not comment on the lawsuit. [GN] WEBLOYALTY.COM INC: LS Appeals Decision in EFTA Breach Suit ------------------------------------------------------------ Plaintiff L.S. filed an appeal from the District Court's omnibus ruling dated October 26, 2018, and amended judgment dated November 9, 2018, issued in his lawsuit titled L.S. v. Webloyalty.com, Inc., et al., Case No. 10-cv-1372, in the U.S. District Court for the District of Connecticut (New Haven). As reported in the Class Action Reporter on Nov. 26, 2018, Judge Charles S. Haight, Jr., (i) granted Webloyalty's Motion for Partial Summary Judgment on Plaintiff's EFTA claim, and (ii) denied Webloyalty and GameStop's Motion for Judgment on the Pleadings on Plaintiff's CUTPA claim. In November 2009, the Plaintiff purchased a video game from GameStop's website. A banner for Defendant Webloyalty appeared on the wepbage after the Plaintiff completed his online purchase, but the banner included a "Continue" button that led the Plaintiff to believe he was still in the process of completing his GameStop purchase. Clicking on the banner led the Plaintiff to Webloyalty's enrollment page that advertised a $20 GameStop coupon and included references to GameStop throughout its description of Webloyalty's membership program. The page at issue required the Plaintiff to enter the last four digits of his debit card number and to enter and verify his e-mail. He apparently did so. The Plaintiff asserts Webloyalty violated the Electronic Funds Transfer Act ("EFTA") by not providing a copy of the electronic fund transfer authorization, i.e., the Enrollment Page. Webloyalty contends that the Acknowledgment Page and Join Email satisfy the copy requirement under EFTA. The appellate case is captioned as L.S. v. Webloyalty.com, Inc., et al., Case No. 18-3639, in the United States Court of Appeals for the Second Circuit.[BN] Plaintiff-Appellant L.S., a minor, by P.S., his parent and next friend, on behalf of himself and all others similarly situated, is represented by: David Corey Katz, Esq. WEISSLAW LLP 1500 Broadway New York, NY 10036 Telephone: (212) 682-3025 E-mail: dkatz@weisslawllp.com Defendants-Appellees Webloyalty.com, Inc., and GameStop Corporation are represented by: Paloma Naderi, Esq. WILMER CUTLER PICKERING HALE AND DORR LLP 60 State Street Boston, MA 02109 Telephone: (617) 526-6000 E-mail: paloma.naderi@wilmerhale.com WILLIAMS PLANT: Gounder Seeks Overtime Wages -------------------------------------------- CLIFTON GOUNDER, Individually and For Others Similarly Situated, the Plaintiffs, v. WILLIAMS PLANT SERVICES, LLC, the Defendant, Case No. 3:18-cv-01066-SDD-RLB D (M.D. Fla., Dec. 10, 2018), seeks to recover overtime pay under Fair Labor Standards Act. According to the complaint, Williams Plant paid Gourner and other workers like him the same hourly rate for all hours worked, including those in excess of 40 in a workweek. Rather than receiving time and half as required by the FLSA, Gourner only received "straight time” pay for overtime hours worked, the lawsuit says. William Plaint is a provider of complete plant maintenance and modifications services to heavy industrial clients across the U.S.[BN] Attorney for Plaintiffs: Philip Bohrer, Esq. Scott E. Brady, Esq. BOHRER BRADY, LLC 8712 Jefferson Highway, Suite B Baton Rouge, LA 70809 Telephone: (225) 925 5297 Facsimile: (225) 231 7000 E-mail: phil@bohrerbrady.com scott@bohrerbrady.com - and - Michael A. Josephson, Esq. Andrew W. Dunlap, Esq. William R.Liles, Esq. JOSEPHSON DUNLAP 11 Green Plaza, Suite 3050 Houston, TX 77046 Telephone: (713) 352 1100 Facsimile: (713) 352 3300 E-mail: mjosephson@mybackwages.com adunlap@mybackwages.com wliles@mybackwages.com - and - Richard J. (Rex) Burch, Esq. BRUCKNER BURCH , PLLC 8 Greenway Plaza, Suite 1500 Houston, TX 77046 Telephone: 713 877-8788 Facsimile: 713 877-8065 E-mail: rburch@brucknerburch.com WOLVERINE WORLD: Faces Henry Suit in Delaware Federal Court ----------------------------------------------------------- A class action lawsuit has been filed against Wolverine World Wide, Inc. The lawsuit is styled Susan Henry, for herself and on behalf of all others similarly situated, the Plaintiff, vs. Wolverine World Wide, Inc., a Delaware Corporation; Waste Management, Inc., a Delaware Corporation; 3M Company, formerly known as: Minnesota Mining and Manufacturing Co., a Delaware Corporation, the Defendants, Case No.: 1:18-cv-01924-UNA (D. Del., Dec. 4, 2018). Wolverine World Wide, Inc. or Wolverine Worldwide is an American footwear manufacturer based in Rockford, Michigan, known for its own brand, Wolverine Boots and Shoes, as well as its subsidiaries such as Hush Puppies and Merrell.[BN] Attorneys for Plaintiff: R. Joseph Hrubiec, Esq. NAPOLI SHKOLNIK, LLC 919 North Market Street, Suite 1801 Wilmington, DE 19801 Telephone: (302) 330-8025 Facsimile: (302) 295-4801 E-mail: rhrubiec@napolilaw.com WOODSTREAM CORPORATION: Painter Suit Removed to N.D. Ohio --------------------------------------------------------- The case captioned Nancy Painter, individually and on behalf of all others similarly situated, Plaintiff, v. Woodstream Corporation, Defendant, Case No. 18CV001743 was removed from the Court of Common Pleas of Lake County, Ohio to the United States District Court for the Northern District of Ohio on December 13, 2018, and assigned Case No. 1:18-cv-02872. This putative class action was filed on October 17, 2018. Plaintiff, Nancy Painter, alleges that she purchased a Victor PestChaser(R) trademarked ultrasonic pest control device, advertised by the Defendant as a "Rodent Repeller" that "emits ultrasound at varying volumes and varying frequencies which 'prevents rodent from being accustomed to the ultrasound'". However, Plaintiff says these statements were false and that they form the basis for her common law claims of Fraud and Breach of Express Warranty. Woodstream is a Pennsylvania corporation with its principal place of business in Lititz, Pennsylvania. Among other things, Woodstream manufactures Victor PestChaser ultrasonic rodent repellers.[BN] The Defendants is represented by: Sommer L. Sheely, Esq. Bricker & Eckler LLP 100 South Third Street Columbus, OH 43215 Phone: 614.227.8870 Facsimile: 614.227.2390 Email: ssheely@bricker.com [*] Swansea Water District May Get Class Action Settlement Payout ----------------------------------------------------------------- Bill Hall, writing for SouthCoastTODAY, reports that the Swansea Water District may be entitled for funds following a class action suit involving a chemical that is widely used. Acting Superintendent Jeffrey Sutherland noted that it was found that firms selling liquid aluminum between 1997 to 2011, colluded with one another to fix prices. The settlement entitles communities that purchased the chemical a chance for some of the funding. The superintendent told the Board of Commissioners that his office will be looking into the records to determine if the District purchased the product and whether they would be entitled to the funds. The issue came up when the District was contacted by a firm that was willing to assist in the collection of the funds with a fee that would amount to 33 percent of whatever is collected. Supt. Sutherland went to the Water District's attorney Ed Brennan who suggested that the District do that work. Supt. Sutherland noted that it would have been a situation where the District did most of the "leg work." [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 ***