/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/190123.mbx C L A S S A C T I O N R E P O R T E R Wednesday, January 23, 2019, Vol. 21, No. 17 Headlines 1800 EUCLID AVENUE: Faces Honeywell Suit Asserting ADA Violation 190 MAIN: Diaz Suit Seeks to Recover Unpaid Overtime Under FLSA ACREBAY CAPITAL: Defrauded Investors, Class Action Says ADSAD LLC: Does Not Pay Wages to Bussers/Runners, Georgiev Says AIG PROPERTY: Court Grants Bid to Strike in John Suit ALBERTA: Faces Proposed Class-Action Lawsuit Over Sterilizations ARCHE USA: Garey Files Suit under ADA in S.D. New York ASSOCIATED WHOLESALE: Piazza Seeks Class Certification Under FLSA AT&T MOBILITY: Denial of Bid to Dismiss Unli Data Suit Reversed AUTO ZONE: Can Compel Arbitration in Hernandez Suit BALBOA WATER: Sonny Le Seeks Minimum & Overtime Wages BEST RATE: Can Compel Arbitration in J. Temple TCPA Suit BIG MACK PAINTING: Pena Sues Over Unpaid Overtime Wages BIMBO BAKERIES: Tiscareno Wants to Notify Class of Associates BLUEBIRD BIO: Robbins Arroyo LLP Files Class Action BLUEGREEN VACATIONS: Wijesinha Sues over Unsolicited Phone Calls BOLT THREADS: Faces Garey Suit Asserting ADA Violation BROADWAY BEAUTY: Nunez Sues Over Unpaid Minimum, Overtime Wages BUFFALO FUEL: Jorge Torres Seeks Overtime Wages BUGATCHI GROUP: Violates ADA, Garey Suit Asserts CANADA: RCMP Faces Class Action Over Indigenous Mistreatment CAREEXPAND LLC: Fails to Pay Overtime Under FLSA, Darden Alleges CARMAX AUTO: Doucette Seeks to Recover Minimum and Overtime Wages CERTIFIED RECOVERY: Placeholder Bid for Class Certification Filed CONNECTICUT: McNee Seeks Certification of Class and Subclass CONNECTICUT: Murphy Files Civil Rights Class Action CONTRA COSTA COUNTY, CA: Summ. Judgment Bid in Farrow Suit Granted CREDIT BUREAU: Court Certifies Class in Bassett FDCPA/NCPA Suit CUYAHOGA COUNTY, OH: Sued Over County Jail Conditions DENTSPLY SIRONA: Bernstein Litowitz Files Securities Class Action DENTSPLY SIRONA: Bronstein Gewirtz Files Class Action Lawsuit DENTSPLY SIRONA: Gainey McKenna Files Class Action Lawsuit DEX MEDIA: Alexander Suit Alleges FLSA Violation EMINENT INC: Garey Sues Online Retailer for ADA Breach EMPRO INC: Fails to Pay Overtime Under FLSA, Dreval Suit Claims EVOLUCION INNOVATIONS: Violates Disabilities Act, Garey Suit Says EXXON MOBIL: 100% Fault in Baton Rouge Pipe Failure Suit Affirmed F.H. CANN: Third Circuit Appeal Filed in Scanno Consumer Suit FANATICS RETAIL: Faces Garey Class Action Asserting ADA Violation FCA US: All Discovery in Alger Suit to be Completed by March 18 FEIT INDUSTRIES: Footwear Firm Faces Class Action under ADA FIDELITY BANK: McAlister Asks to Certify Class of MLOs Under FLSA FINANCIAL CORP: Court Okays Class Notice in Encarnacion FDCA Suit FINANCIAL MEDIA: Violates TCPA and Invades Privacy, Hanks Claims GALIANO ENTERPRISES: Ramirez Brito Suit Moved to S.D. Florida GLORIA JEWEL: Violates Disabilities Act, Says Garey Suit GOLDMAN SACHS: Pomerantz Law Files Class Action GOVERNMENT EMPLOYEES: Banaga Files Class Action Over Discrimination H&R BLOCK: Deborah Robinson Sues over No Poach Policy HANBAT RESTAURANT: Does not Properly Pay Workers, Armando Suit Says HERTZ CORPORATION: Denicolo Files FDCPA Suit in N.D. California HOLLAR INC: Garey Targets Online Gift Shop in ADA Suit HOLTGER BROS: Field Workers Class Certified in McChesney Suit ILLUMINA INC: Filing of 2nd Amended Securities Suit Denied INDIANA: Inmates Files Civil Rights Class Action INVESTMENT TECHNOLOGY: Scarantino Suit Challenges Sale to Virtu IRONBOUND EXPRESS: Court Certifies Luxama Drivers Class KEITH D. WEINER: Placeholder Class Certification Bid Filed LAOS: 9th Cir. Tosses Hmong Exiles' Lawsuit LIFEBRIDGE HEALTH: Murphy Falcon Files Class Action Lawsuit LULU'S FASHION: Online Clothes Shop Hit with ADA Suit MCDERMOTT INTERNATIONAL: Public Employees Files Securities Suit MIAMI-DADE, FL: Alvarez et al. Seek to Certify Class of Teachers MISSOURI: Court Certifies Class of Adult Parolees in Gasca Suit MONSANTO COMPANY: Matlock Sues Over Roundup Exposure NATIONAL CREDIT: Class Cert. Proceedings in Gochet Suit Stayed NATIONAL CREDIT: Placeholder Bid for Class Certification Filed NELSON MANAGEMENT: Faces Fischler Suit Alleging ADA Violation NOBILIS HEALTH: Misled Shareholders, Robbins Arroyo Suit Says OHIO MULCH: Court Certifies Two Subclassses in Smyers FLSA Suit OLDE GOOD THINGS: Antique Shop Faces Class Suit under ADA ONE KINGS LANE: Dennis Files Suit Alleging ADA Breach PAUL VALLAS: Klueh Files FCRA Suit in N.D. Illinois PHARMAVITE LLC: Court Grants Bid to Dismiss Anthony Suit Under UCL PHILLIPS & COHEN: Placeholder Bid for Class Certification Filed PIXELS.COM: Faces Class Action in New York Asserting ADA Violation PRESIDENTIAL LIMOUSINE: Thurmond Suit Settlement Has Final Approval PROCARE CRS: Lawson Deal Approval Held in Abeyance Pending Notice PROCTER & GAMBLE: Settlement Reached in Flushable Wipes Suit RAMADA WORLDWIDE: Breeze Files Suit under ADA in New Jersey RAYOSUN LLC: Naiman Sues Over TCPA Violation SAN FRANCISCO, CA: Ct. Refuses to Certify Classes in Lil' Man Suit SHOEBUY.COM: Online Footwear Firm Faces ADA Class Action SKAGIT REGIONAL: Court Extends Deadlines in McLean Suit SUNRISE SENIOR: Van Cleave Suit Alleges Labor Code Violations TARGET CORP: Minn. App. Affirms Denial of In Forma Pauperis Bid TIGER DIRECT: Garey Files Suit under ADA in S.D. New York TIO LEO: Huerta Suit Alleges Calif. Labor Code Violations TOT BABY CORP: Violates Disabilities Act, Garey Suit Asserts TRES AMIGOS: Flynn & Toroveci Suit Has Conditional Class Cert. TRUSTMARK NATIONAL: Sued for Overdraft Fees UNITED AIRLINES: Fails to Pay Wages for Short-Term Military Leave UNITED COLLECTION: Placeholder Bid for Class Certification Filed UNITEDHEALTH GROUP: Fights Suit Over Underpaying Health Services US AVIATION SERVICES: Haralson Asks for Initial Nod of Class Deal VIDA SHOES: Website not Accessible to Blind People, Slade Says VIRGINIA: Court Orders Enforcement of Scott Suit Agreement WALKERHEALTHCAREIT LLC: Debra Bey Suit Transferred to S.D. Texas WELLS FARGO: Bid to Vacate Arbitral Award in Tucker Suit Denied WISCONSIN: Bender Suit Alleges Civil Rights Violation YUMI KIM SHOP: Women's Clothing Line Faces ADA Class Action in NY ********* 1800 EUCLID AVENUE: Faces Honeywell Suit Asserting ADA Violation ---------------------------------------------------------------- 1800 Euclid Avenue LLC is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Cheri Honeywell, individually and on behalf of all others similarly situated, Plaintiff v. 1800 Euclid Avenue LLC doing business as: Comfort Inn Downtown, Defendant, Case No. 1:19-cv-00075-SO (N.D. Ohio, January 10, 2019). 1800 Euclid Avenue LLC is a hotel located in the historic area of downtown Memphis and overlooks both the Mississippi River and the Mud Island River Park. The Plaintiff is represented by: Marc E. Dann, Esq. Dann Law Firm - Cleveland P.O. Box 6031040 Cleveland, OH 44103 Tel: (216) 373-0539 Fax: (216) 373-0536 Email: mdann@dannlaw.com - and - Emily C. White, Esq. Dann Law Firm - Cleveland P.O. Box 6031040 Cleveland, OH 44103 Tel: (216) 373-0539 Fax: (216) 373-0536 Email: ewhite@dannlaw.com 190 MAIN: Diaz Suit Seeks to Recover Unpaid Overtime Under FLSA --------------------------------------------------------------- ANTHONY DIAZ, individually, and on behalf of others similarly situated v. 190 MAIN STREET ASSOCIATES, L.L.C., JP MANAGEMENT GROUP, LLC, JOHN PJETERNIKAJ SR., and JOHN PJETERNIKAJ JR., Case No. 2:19-cv-00127 (D.N.J., January 4, 2019), seeks to recover alleged unpaid overtime wages, liquidated damages and reasonable attorneys' fees and costs as a result of the Defendants' willful violation of the Fair Labor Standards Act. 190 Main Street Associates, L.L.C., is a limited liability company registered in New Jersey. JP Management Group, LLC, is a limited liability company registered in New Jersey. The Corporate Defendants's principal place of business is located in Hackensack, New Jersey. The Individual Defendants own, manage, and exercise day-to-day, operational control over the Corporate Defendants. The Defendants collectively operate a property management group that owns and manages several residential properties in New Jersey.[BN] The Plaintiff is represented by: Jason T. Brown, Esq. BROWN, LLC 111 Town Square Place, Suite 400 Jersey City, NJ 07310 Telephone: (877) 561-0000 Facsimile: (855) 582-5297 E-mail: jtb@jtblawgroup.com ACREBAY CAPITAL: Defrauded Investors, Class Action Says ------------------------------------------------------- Robert Kahn, writing for Courthouse News Service, reports that a class claims in court that Acrebay Capital Management, Credit Portfolio Lending II and their directors defrauded investors through a feeder fund for a $345 million Ponzi scam. ADSAD LLC: Does Not Pay Wages to Bussers/Runners, Georgiev Says --------------------------------------------------------------- IGOR GEORGIEV, SANJAR ORTIKOV, and SEMEN SEREDENKO, on behalf of themselves and others similarly situated v. ADSAD, LLC d/b/a ONEGIN RESTAURANT, ALEKSANDER SHAPIRO, and JACOB RIFKIN, in their individual and professional capacities, Case No. 1:19-cv-00122 (S.D.N.Y., January 4, 2019), alleges, among other things, that the Defendants require all of their bussers and runners to work without wages and rely solely upon tips for compensation, in violation of the Fair Labor Standards Act and the New York Labor Law. Adsad, LLC, doing business as Onegin Restaurant, is a limited liability company with its principal place of business located in New York City. The Individual Defendants are shareholders, officers managers or employees of the Company. The Defendants own a Russian restaurant -- Onegin -- in the Greenwich Village neighborhood in New York City. Onegin, which opened in approximately the fall of 2011, is located at 391 Sixth Avenue, in New York City.[BN] The Plaintiffs are represented by: Innessa M. Huot, Esq. Alex J. Hartzband, Esq. Patrick J. Collopy, Esq. FARUQI & FARUQI, LLP 685 3rd Avenue, 26th Floor New York, NY 10017 Telephone: (212) 983-9330 Facsimile: (212) 983-9331 E-mail: ahartzband@faruqilaw.com ihuot@faruqilaw.com pcollopy@faruqilaw.com AIG PROPERTY: Court Grants Bid to Strike in John Suit ----------------------------------------------------- In the case, NATALIE NADIRA JOHN, Plaintiff, v. AIG PROPERTY CASUALTY COMPANY GROUP, INC. UNKNOWN FORM OR RESIDENCE, Defendant, Case No. CV 18-8664-RSWL-JEM (C.D. Cal.), Judge Ronald S.W. Lew of the U.S. District Court for the Central District of California granted the Defendant's Motion to Strike. On March 25, 2018, the Plaintiff was involved in a car accident with two other vehicles, allegedly causing third party losses over $150,000 in property and personal injury damages. The Plaintiff alleges that at all relevant times, her car was covered by Policy No. 0013913512, entered into by the Defendant and the Plaintiff. The Plaintiff alleges she paid all premiums due under the Policy. Shortly after the accident, the Plaintiff contacted an agent of the Defendant to make a claim for the losses. After several requests for coverage, the Defendant advised the Plaintiff it had rejected coverage of her claims. The Plaintiff alleges that the Defendant represented to the Plaintiff it would honor her claims in return for maintaining her Policy and continuing to make premium payments, and by denying coverage, the Defendant has breached a duty of good faith and fair dealing. The Plaintiff filed her Complaint in Los Angeles County Superior Court on Sept. 5, 2018. The Defendant removed the Action to the Court pursuant to diversity jurisdiction on Oct. 9, 2018. The Plaintiff filed a First Amended Complaint on Oct. 22, 2018. The Defendant filed the instant Motion to Strike on Oct. 31, 2018. The Plaintiff filed her Opposition late on Nov. 25, 2018. The Defendant filed a Reply on Nov. 28, 2018. The Defendant seeks to strike the Plaintiff's allegation in Paragraph 22 of the FAC that there are numerous other individuals and groups insured by Defendant who were or are similarly situated to the Plaintiff and who, upon learning the names of these individuals, the Plaintiff will seek leave of court to join such persons as the Plaintiffs in the action. The Defendant argues that the case is a putative "class" allegation that lacks any connection to the Plaintiff's dispute with the Defendant. Judge Lew finds that the Plaintiff does not bring her claim as a class action and did not argue that the allegation should be treated as a class allegation, let alone mention Paragraph 22 in her Opposition. Nor does the Plaintiff specifically identifies who the alleged "similarly situated" parties are and how they are "similarly situated" to her set of facts. Because the allegation in Paragraph 22 does not plead facts for any of the required elements of Rule 23, it is insufficient to survive a motion to strike. In addition to being conclusory, the Plaintiff's allegation is immaterial as it provides no facts showing how the unidentified individuals relate to the Plaintiff's specific policy, or the facts surrounding the Plaintiff's accident and denial of coverage for her claims. Accordingly, he will grant the Defendant's Motion to strike Paragraph 22. Because the substantive arguments he Defendant provides as to punitive damages could properly be asserted in a Rule 12(b)(6) motion to dismiss, the Court can construe the Defendant's Motion as a Rule 12(b)(6) motion. Because he construes the Defendant's Motion as a 12(b)(6) Motion to Dismiss Plaintiff's claim for punitive damages, and that the Plaintiff's largest problem is that she fails to plead sufficient facts for her claim for punitive damages, the Judge holds there is a chance that amendment will cure these deficiencies. Accordingly, he grants leave to amend as to the Plaintiff's claim for punitive damages. Based on the foregoing, Judge Lew (1) granted the Defendant's Motion to Strike Paragraph 22 of the FAC; (2) construed the Defendant's Motion to Strike Plaintiff's claim for punitive damages as a Rule 12(b)(6) Motion to Dismiss, and granted the Defendant's 12(b)(6) Motion; and (3) granted leave to amend as to the Plaintiff's claim for punitive damages only. The Plaintiff will have 21 days from the date to file her Second Amended Complaint. A full-text copy of the Court's Jan 4, 2019 Order is available at https://is.gd/DjSRFi from Leagle.com. Natalie Nadira John, Plaintiff, represented by Barry Fischer -- bfischer@bfischerlaw.com -- Law Offices of Barry Fischer APC. AIG Property Casualty Company, a business of unknown form or residence, Defendant, represented by Max Gerald Garcia -- jerry.garcia@lewisbrisbois.com -- Lewis Brisbois Bisgaard and Smith LLP & Rebecca R. Weinreich -- Rebecca.Weinreich@lewisbrisbois.com -- Lewis Brisbois Bisgaard and Smith LLP. ALBERTA: Faces Proposed Class-Action Lawsuit Over Sterilizations ---------------------------------------------------------------- The Hamilton Spectator reports that a proposed class action has been filed against the Alberta government on behalf of Indigenous women who say they were subjected to forced sterilizations. The lawsuit seeks $500 million in damages, plus an additional $50 million in punitive damages, and has been brought on behalf of all Indigenous women sterilized in Alberta without their prior and informed consent before Dec. 14 of this year. The lawsuit alleges Alberta -- including senior officials and ministers -- had specific knowledge of widespread coerced sterilizations perpetrated on Indigenous women. It also alleges the government turned a blind eye to that conduct and breached its fiduciary responsibilities. Celeste Poltak, Esq. -- cpoltak@kmlaw.ca -- a lawyer with Toronto firm Koskie Minsky LLP, said the coerced sterilization of Indigenous women is "yet another dark chapter" in the relationship between governments and Indigenous Peoples. A proposed class action is also underway in Saskatchewan that names the Saskatoon Health Authority, the Saskatchewan government, the federal government and a handful of medical professionals as defendants.[GN] ARCHE USA: Garey Files Suit under ADA in S.D. New York ------------------------------------------------------ Arche USA, Inc. is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Kevin Garey, on behalf of himself and all others similarly situated, Plaintiff v. Arche USA, Inc., Defendant, Case No. 1:19-cv-00343 (S.D. N.Y., January 13, 2019). Arche Usa, Inc. is a New York Domestic Business Corporation filed on October 20, 2005.[BN] The Plaintiff is represented by: Jonathan Shalom, Esq. Shalom Law, PLLC. 124-04 Metropolitan Avenue Kew Gardens, NY 11374 Tel: (516) 807-1748 Email: jshalom@jonathanshalomlaw.com ASSOCIATED WHOLESALE: Piazza Seeks Class Certification Under FLSA ----------------------------------------------------------------- The Plaintiff in the lawsuit captioned MICHAEL PIAZZA, JR., On behalf of himself and all others similarly situated v. ASSOCIATED WHOLESALE GROCERS, INC., Case No. 2:17-cv-10289-JTM-KWR (E.D. La.), files with the Court his second motion for conditional certification and judicial notice. Mr. Piazza moves the Court for conditional certification of his action as a collective action under the Fair Labor Standards Act. He also seeks an order directing the Defendant to produce contact information on the putative class and an authorization to send notice to putative collection members. The class is defined as: All individuals who were employed by AWG at any point from October 7, 2014 to the present, were compensated on an hourly wage basis, and had 30 minute lunch breaks automatically removed from their recorded work hours. Mr. Piazza complains that the Defendant implemented and followed a policy or practice by which the Defendant routinely failed improperly deducted 30 minutes a day from his work hours for a lunch break regardless of whether or not he took the lunch break.[CC] The Plaintiff is represented by: Chad A. Danenhower, Esq. DANENHOWER LAW FIRM, LLC 212 Park Place Covington, LA 70433 Telephone: (985) 590-5026 E-mail: chad.danenhower@danenhowerlaw.com - and - Dale E. Williams, Esq. LAW OFFICE OF DALE E. WILLIAMS 212 Park Place Covington, LA 70433 Telephone: (985) 898-6368 E-mail: dale@daleslaw.com AT&T MOBILITY: Denial of Bid to Dismiss Unli Data Suit Reversed --------------------------------------------------------------- The Court of Appeals of Minnesota reversed the lower court's denial of Respondent AT&T Mobility, LLC's Motion to Dismiss the lawsuits brought by seven customers of respondent/cross-appellant claiming breach of contract based on data-speed limitations applied to unlimited-data plans. The Respondent moved to dismiss, in part on the ground that the appellant, CrowdSuit, LLC, assignee of the lawsuits, lacked standing to bring the lawsuit because an aggregated lawsuit was precluded by respondent's contract with its customers. The district court denied the motion to dismiss. In its motion to dismiss, AT&T argued that CrowdSuit lacked standing to bring the lawsuit because the WCA provided that AT&T customers could sue only as individuals. The legal question of standing to sue is reviewed de novo. Here, the question is governed by the parties' contract, the WCA. Absent ambiguity, the interpretation of a contract is a question of law and is also reviewed de novo. The primary goal of contract interpretation is to ascertain and enforce the intent of the parties. The assignors had explicitly agreed to bring claims against AT&T only in their individual capacities and not as members of any purported class or representative proceeding. Nothing in the WCA indicates that the parties to it intended disputes to be resolved collectively, or by third parties, or both. AT&T and its customers clearly intended that any dispute would be resolved one-on-one, whether in small-claims court or through arbitration. The assignors, all of whom had explicitly agreed to resolve their disputes as individuals, could not engage in a collective district court action. CrowdSuit lacked standing to bring this lawsuit, and the district court erred in not dismissing it on that basis. The appeals case is CrowdSuit, LLC, Appellant, v. AT & T Mobility, LLC, Respondent. No. A17-1733. (Minn. App.). A full-text copy of the Minn. App.'s December 24, 2018 Opinion is available at https://tinyurl.com/yaewoc23 from Leagle.com. Matthew L. Woods -- MWoods@RobinsKaplan.com -- Stephen P. Safranski -- SSafranski@RobinsKaplan.com -- Peter N. Surdo -- PSurdo@RobinsKaplan.com -- Robins Kaplan LLP, Minneapolis, Minnesota, for appellant. Karla M. Vehrs -- VEHRSK@BALLARDSPAHR.COM -- Ballard Spahr LLP, Minneapolis, Minnesota; and Kevin S. Ranlett -- kranlett@mayerbrown.com -- pro hac vice, Mayer Brown LLP, Washington, D.C., for respondent. AUTO ZONE: Can Compel Arbitration in Hernandez Suit --------------------------------------------------- In the case, MARVIN HERNANDEZ, individually and on behalf of all others similarly situated, Plaintiff, v. AUTO ZONE, INC., a Nevada corporation; AUTOZONERS, LLC, a Nevada limited liability company; AUTOZONE PARTS, INC., a Nevada corporation; and DOES 1-50, inclusive, Defendants, Case No. 3:18-cv-01324-JAH-AGS (S.D. Cal.), Judge John A. Houston of the U.S. District Court for the Southern District of California granted the Defendants' (i) Motion to Compel Arbitration and Stay Matter Pending Arbitration or, in the Alternative, Motion to Dismiss Pursuant to Fed. R. Civ. 12(b)(1), and (i) Request for Judicial Notice. On May 14, 2018, the Plaintiff filed a Class Action Complaint in state court bringing seven causes of action against the Defendants pursuant to the California Labor Code and the California Business and Professions Code. The Defendants filed a Notice of Removal on June 18, 2018. On Sept. 6, 2018, the Plaintiff filed his First Amended Class Action Complaint adding an eighth cause of action pursuant to California's Private Attorneys General Act ("PAGA"). the Shortly thereafter, Defendants filed the instant motion to compel arbitration and stay the matter or, in the alternative, to dismiss pursuant to Federal Rules of Civil Procedure. The Defendants' motion sets forth the following background facts: On Dec. 24, 2012, the Plaintiff electronically executed an AutoZoners Dispute Resolution Agreement, a mutual arbitration agreement requiring all such disputes to be resolved only by an arbitrator through final and binding arbitration and not by way of court or jury trial and applying to any dispute arising out of or related to employees' employment with AutoZone or one of its affiliates, subsidiaries or parent companies or termination of employment. He executed a second, substantively-identical Arbitration Agreement on July 13, 2015. The Arbitration Agreements also provides a class, collective, and representative waiver, stating that, there will be no right or authority for any dispute to be brought, heard or arbitrated as a class, collective, or representative action, and the Class Action Waiver means neither party will have the right to participate in or be a representative plaintiff in a class, collective or representative action. On Oct. 29, 2014, former employee of AutoZoners, Jesse Alvarez, filed a PAGA action against the Defendant in San Bernardino County Superior Court. On Dec. 1, 2014, Alvarez was removed to the Central District, where it is currently pending. Pending before the Court is the Defendants Motion to Compel and Request for Judicial Notice. The Plaintiff filed no opposition. Judge Houston finds that the Plaintiffs did not file an opposition brief or a statement of non-opposition in response to the Defendant's motion. Therefore, no issue as to the validity or enforceability of the agreements has been raised. He finds the arbitration agreements valid, irrevocable, and enforceable as written, requiring the Plaintiff to submit his claims to arbitration in accordance with the terms of the agreements. After a review of the pleadings in the action and the Alvarez complaint, the Judge finds that the two actions involve substantially similar parties and issues. Because the Alvarez complaint was filed more than three years prior to the complaint in the instant action, the first-to-file rule is applicable and the Plaintiff's PAGA claim will be severed and stayed pending the resolution of Alvarez and the completion of arbitration proceedings. Accordingly, Judge Houston granted the Defendants' (i) motion to Compel Arbitration and Stay the Action and (ii) Request for Judicial Notice. Plaintiff Hernandez will submit all of his individual claims, causes of action one through seven, against the Defendants to binding arbitration in accordance with the terms of the parties' arbitration agreements. The Judge also granted the Defendants' motion to Dismiss Plaintiff Marvin Hernandez's class action allegations. The Plaintiff's representative PAGA claim, alleged as the eighth cause of action, is severed and stayed pending arbitration of the Plaintiff's individual claims and pending the resolution of Alvarez v. AutoZone, Inc. The litigation, including all pending discovery not relating to the enforceability of the arbitration agreement, is stayed pending completion of the parties' arbitration. A full-text copy of the Court's Jan 4, 2019 Order is available at https://is.gd/1NUlHc from Leagle.com. Marvin Hernandez, individually and on behalf of all others similarly situated, Plaintiff, represented by Jacob N. Whitehead -- reception@jnwpc.com -- Whitehead Employment Law & Patrick McNicholas, IV , McNicholas & McNicholas. Autozone, Inc., a Nevada corporation, Autozoners, LLC, a Nevada limited liability company & Autozone Parts, Inc., a Nevada corporation, Defendants, represented by Evan Reed Moses -- evan.moses@ogletreedeakins.com -- Ogletree, Deakins, Nash, Smoak & Stewart P.C., Graham Hoerauf -- graham.hoerauf@ogletree.com -- Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Elizabeth Falcone -- elizabeth.falcone@ogletree.com -- Ogletree Deakins & Nardo J. Catahan -- nardo.catahan@ogletree.com -- Ogletree, Deakins, Nash, Smoak & Stewart, P.C.. BALBOA WATER: Sonny Le Seeks Minimum & Overtime Wages ----------------------------------------------------- SONNY LE, individually, and on behalf of other members of the general public similarly situated, the Plaintiff, vs. BALBOA WATER GROUP LLC; and DOES 1 through 100, inclusive, the Defendants, Case No. 30-2019-01042358-CU-OE-CXC (Cal. Super. Ct., Jan.7, 2019), seeks to recover unpaid overtime, unpaid meal premiums, unpaid rest period, and unpaid minimum wages, under the California Labor Code. According to the complaint, the Plaintiff and the other class members worked over eight hours in a day and/or 40 hours in a week during their employment with the Defendants. The Plaintiff alleges that Defendants engaged in a pattern and practice of wage abuse against their hourly-paid or non-exempt employees within the State of California. This pattern and practice involved, inter alia, failing to pay them for all regular and/or overtime wages earned and for missed meal periods and rest breaks in violation of California law. The Plaintiff alleges that Defendants knew or should have known that Plaintiff and the other class members were entitled to receive certain wages for overtime compensation and that they were not receiving accurate overtime compensation for all overtime hours worked, the lawsuit says. Balboa Water Group, Inc. designs and manufactures control systems and equipment for the leisure water industry in the United States and internationally.[BN] Attorneys for Plaintiff: Edwin Aiwazian, Esq. LAWYERS for JUSTICE, PC 410 West Arden Avenue, Suite 203 Glendale, CA 91203 Telephone: (818) 265 1020 Facsimile: (818) 265 1021 BEST RATE: Can Compel Arbitration in J. Temple TCPA Suit -------------------------------------------------------- The United States District Court for the Middle District of Florida, Tampa Division, issued an Order granting Defendant's Motion to Compel Arbitration in the case captioned JOHN TEMPLE, Plaintiff, v. BEST RATE HOLDINGS LLC and LENDING TREE INC., Defendants. Case No. 8:18-cv-176-T-36JSS. (M.D. Fla.). The Plaintiff filed a single-count putative class action complaint against Best Rate and Lending Tree, alleging violations of the Telephone Consumer Protection Act (TCPA), based on purported text messages sent by Defendants to Plaintiff's wireless telephone number using an automatic telephone dialing system. The Plaintiff argues that the Arbitration Provision is unenforceable, and that he cannot be compelled to arbitrate his claim, for two reasons: first, because the Agreement is a browsewrap agreement and second, because the Agreement is unconscionable. Where one party offers terms of a contract to another, unequivocal acceptance of the terms by the receiving party is required. Contracts available on the internet come in different forms. Two such forms include clickwrap agreements and browsewrap agreements. Clickwrap agreements, which courts generally find enforceable, necessitate an active role by the user of a website. They require a user to affirmatively click a box on the website acknowledging awareness of and agreement to the terms of service before he or she is allowed to proceed with further utilization of the website. Because clickwrap agreements require the user to physically manifest assent, the user is said to be put on inquiry notice of the terms assented to. In contrast, browsewrap agreements require a less active role by the website user. Generally, a browsewrap agreement consists of a notice on a website stating that the user is agreeing to and is bound by the website's terms of service by merely using the website. Because a user's consent to a browsewrap agreement is generally passive, courts closely examine the factual circumstances surrounding a person's use of the website and alleged assent to the terms of service. To be valid, a browsewrap agreement must give at least reasonable, constructive, or inquiry notice of the website's terms to the user, and the user must exhibit unambiguous assent to the terms. The conspicuousness and placement of hyperlinks to terms, notices of the terms and the website's general design all contribute to whether an individual would have reasonable notice of a browsewrap agreement. The Plaintiff argues that the Arbitration Provision here is unenforceable because it is part of a browsewrap agreement that could be found only by clicking on the Terms and Conditions Hyperlink located below the Get a Quote button. Best Rate disputes that the Terms and Conditions Hyperlink was located below the Get a Quote button, as Plaintiff describes, at the time Plaintiff visited the website. Best Rate offers evidence that the website was revised on March 21, 2018, after Plaintiff visited it. Although the Terms and Conditions Hyperlink now appears below the Get a Quote button, as Plaintiff describes, the website setup was different on the date Plaintiff visited the website and entered his information. In support, Best Rate attaches the declarations of Zach South, Senior Vice President of Mortgage Operations for Best Rate. South avers that on the date Plaintiff visited the website, October 30, 2016, the Terms and Conditions Hyperlink was prominently displayed and located directly above the Get a Quote button that a user clicks to complete his/her registration. The declarations provide an image of a regenerated HMTL representation of what the webpage looked like at the time Plaintiff registered. That image, in turn, shows that the Terms and Conditions Hyperlink was located above the Get a Quote button. Upon careful review of Best Rate's evidence concerning the placement of the Terms and Conditions Hyperlink, the Court finds that Plaintiff had reasonable notice of the Agreement and that the Agreement is enforceable. Where the website user was cautioned that clicking the Sign Up button indicated his agreement to the Terms of Service, here, Plaintiff was cautioned that clicking the Get a Quote button would indicate his acceptance to the Agreement available via the Terms and Conditions Hyperlink. The Terms and Conditions Hyperlink was placed in a manner conspicuous enough to provide reasonable notice to a prudent user, thereby requiring the user to affirmatively acknowledge the Terms and Conditions Hyperlink to the Agreement before proceeding. Because the website provided reasonable notice of the Agreement, it is enforceable. Generally, to determine that a contract is unconscionable is to find that the contract was both procedurally and substantively unconscionable when made, i.e., some showing of an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party. Upon careful review, the Court finds Plaintiff has failed to satisfy either element. The procedural element of unconscionability requires an examination of the contract formation process and the alleged lack of meaningful choice. But a plaintiff does not lack a meaningful choice, and a contract is not procedurally unconscionable, where a plaintiff had the opportunity to opt out without any adverse consequences. Here, the Arbitration Provision provided Plaintiff with thirty-days to opt-out. The parties do not present any evidence that Plaintiff attempted to opt-out. The Plaintiff's argument that he had no bargaining power in the formation of the Agreement, and that the terms were presented to him on an impermissible take-it-or-leave-it basis, is unavailing. The fact that an arbitration agreement is presented on a take-it-or-leave-it basis is not sufficient under New York law to render the arbitration provision procedurally unconscionable. Plaintiff provides no basis for the Court to determine that the Agreement is procedurally unconscionable. It is only in exceptional cases where a provision of a contract is so outrageous as to warrant holding it unenforceable on the ground of substantive unconscionability alone. A party's failure to show procedural unconscionability is generally fatal to an unconscionability claim. The Plaintiff argues the Agreement is substantively unconscionable because the provisions are drawn in favor of Best Rate. Plaintiff points to the following: (1) the class action waiver, which prohibits only plaintiff, but not Best Rate, from filing or participating in a class action lawsuit (2) the provision allowing Best Rate to recover attorney's fees it incurs in seeking injunctive relief against consumers who attempt to participate in class action lawsuits and (3) the provision allowing Best Rate to seek attorney's fees from consumers if the arbitrator determines the consumer's claim was frivolous. The Plaintiff does not cite any case law in support of his argument that the class action waiver is procedurally unconscionable. To the extent Plaintiff argues the class action waiver is procedurally unconscionable solely because it is a class action waiver, his argument fails. Moreover, the fact that an arbitration provision may not be entirely reciprocal does not equate to a finding of unconscionability. Again, the question is whether the contract contains terms unreasonably favorable to one party over the other. Simply, Plaintiff fails to demonstrate that the Arbitration Provision contains any such terms. In this case, the Arbitration Provision provides Plaintiff with certain other benefits; for example, although the Arbitration Provision allows Best Rate to recover attorney's fees for defending frivolous claims, it also allows Plaintiff to recover all filing fees, administration fees, arbitrator fees, and reasonable attorney's fees where the arbitrator awards Plaintiff relief in an amount greater than Best Rate's final settlement offer. Having determined that the Arbitration Provision is enforceable, the Court turns to Plaintiff's argument that he should not be compelled to arbitrate because his claim does not fit within the scope of the Arbitration Provision. Pursuant to the Arbitration Provision, the parties agreed to arbitrate: should a dispute arise concerning the Site Offerings, the terms and conditions of the Agreement or the breach of same by any party hereto. The Plaintiff argues that his claim does not fit within the intended scope of arbitration because it does not concern the Contact Services. Rather, Plaintiff argues, his claim, Defendants' failure to stop sending him text messages after he replied stop occurred months after Plaintiff visited the website and does not concern his use of the website at all. Plaintiff's argument is strained, at best. Plaintiff's Complaint states that he entered his contact information in the fields on the website to learn more about mortgage products. Plaintiff received the alleged contact from Defendants as a result of providing his information and assenting to the terms of the Agreement. Indeed, the text on the website above the Get a Quote button informed Plaintiff that entering his contact information and clicking Get a Quote would mean he agreed to share his information with lenders and agreed to be contacted by them. Defendants' alleged text messages to Plaintiff were clearly precipitated by Plaintiff's utilization of a contact form on the website, a feature described in the Agreement as part of the Contact Services. Plaintiff offers no other explanation for why he would receive such contact. The Contact Services, which are part of the Site Offerings, are subject to arbitration pursuant to the Arbitration Provision. A full-text copy of the District Court's December 27, 2018 Order is available at https://tinyurl.com/ycc9bx8d from Leagle.com. John Temple, individually and on behalf of all others similarly situtated, Plaintiff, represented by Patrick H. Peluso -- ppeluso@woodrowpeluso.com -- Woodrow & Peluso, LLC, pro hac vice, Ryan S. Shipp, Law Office of Ryan S. Shipp, PLLC & Steven L. Woodrow -- swoodrow@woodrowpeluso.com -- Woodrow & Peluso, LLC, pro hac vice. Best Rate Holdings LLC, a Delaware limited liability company, Defendant, represented by Amy E. Stoll, Barnett, Bolt, Kirkwood, Long & Koche & Ethan McLeod Knott -- eknott@kilpatricktownsend.com -- Kilpatrick Townsend & Stockton, LLP. Lending Tree Inc., a Delaware corporation, Defendant, represented by Ethan McLeod Knott, Kilpatrick Townsend & Stockton, LLP. BIG MACK PAINTING: Pena Sues Over Unpaid Overtime Wages ------------------------------------------------------- Harold Pena, on behalf of himself, individually, and on behalf of all others similarly-situated, Plaintiff, v. Big Mack Painting Corp., and OV Painting and Supply, Inc., and Bruce Polk, individually, and Dennis Carollo, individually, Defendants, Case No. 1:19-cv-00265 (E.D. N.Y., January 14, 2019) is a civil action for damages and equitable relief based upon Defendants' willful violations of Plaintiff's rights guaranteed to him by: (i) the overtime provisions of the Fair Labor Standards Act ("FLSA"), (ii) the overtime provisions of the New York Labor Law ("NYLL"), (iii) the NYLL's requirement that employers provide on each payday proper wage statements to their employees containing specific categories of accurate information, (iv) the NYLL's requirement that employers furnish employees with a wage notice at hire containing specific categories of accurate information, and (v) any other claim(s) that can be inferred from the facts set forth herein. Plaintiff worked for Defendants - two corporations that operate as a single enterprise that runs a Staten Island-based painting and renovation business, and their day-to-day overseers - as a painter from in or around March 2013 until on or around April 3, 2018. Throughout Plaintiff's employment, Defendants intentionally failed to pay Plaintiff overtime wages for his hours worked in a week over forty in violation of the FLSA and the NYLL. Specifically, despite Plaintiff working in excess of forty hours per week, Defendants initially paid Plaintiff a flat daily rate for each day worked regardless of how many hours he worked per day or per week, and thus failed to compensate Plaintiff at the statutorily-required overtime rate for any hours that he worked per week in excess of forty. Then, when Defendants made Plaintiff an hourly employee, Defendants continued to require Plaintiff to work more than forty hours per week but paid him at his regular rate of pay for all hours worked, including those in excess of forty. Furthermore, also in violation of the NYLL, Defendants failed to provide Plaintiff with accurate wage statements on each payday throughout his employment or with any wage notice at the time of his hire, let alone an accurate one. The Defendants paid and treated all of their employees whom they paid on either a daily or hourly basis in the same manner, says the complaint. Plaintiff worked for Defendants in New York and was an "employee" entitled to protection as defined by the FLSA, the NYLL, and the NYCRR. Big Mack was a New York corporation with its principal place of business located at 261 Chelsea Street, Staten Island, New York 10307. OV was and is a New York corporation with its principal place of business also located at 261 Chelsea Street, Staten Island, New York 10307. Polk was and is the Chief Executive Officer and Carollo was and is the owner of Defendants Big Mack and OV.[BN] The Plaintiff is represented by: Kenneth F. St. John, Esq. Alexander T. Coleman, Esq. Michael J. Borrelli, Esq. BORRELLI & ASSOCIATES, P.L.L.C. Attorneys for Plaintiff 910 Franklin Avenue, Suite 200 Garden City, NY 11530 Phone: (516) 248-5550 Fax: (516) 248-6027 BIMBO BAKERIES: Tiscareno Wants to Notify Class of Associates ------------------------------------------------------------- The Plaintiff in the lawsuit entitled KATY TISCARENO, individually and on behalf of all similarly-situated v. BIMBO BAKERIES USA, INC., Case No. 2:18-cv-01167-CFK (E.D. Pa.), moves for an order, pursuant to the Fair Labor Standards Act: (a) allowing the sending of notice of this action to all hourly/non-exempt associates working at Bimbo Bakeries USA bakery plants that do not pay for time spent donning and doffing material required under Bimbo's national Uniform Policy, from three years prior to the filing of this action to the present (excluding office/clerical employees); (b) designating the Plaintiff's counsel as counsel for the collective; (c) directing the Defendant to electronically produce the names, dates of employment, telephone numbers, e-mail addresses, addresses, e-mails and such other necessary identifying information, for all members of the collective; and (d) setting this matter for a status conference regarding notice and opt-in procedures.[CC] The Plaintiff is represented by: Alice W. Ballard, Esq. LAW OFFICE OF ALICE W. BALLARD, P.C. 123 S. Broad Street, Suite 2135 Philadelphia, PA 19109 Telephone: (215) 893-9708 E-mail: awballard@awballard.com - and - Edward (E.E.) Keenan, Esq. Sonal Bhatia, Esq. KEENAN & BHATIA, LLC 1301 Oak Street, Suite 510 Kansas City, MO 64106 Telephone: (816) 809-2100 E-mail: ee@keenanfirm.com sonal@keenanfirm.com BLUEBIRD BIO: Robbins Arroyo LLP Files Class Action --------------------------------------------------- Shareholder rights law firm Robbins Arroyo LLP disclosed that purchasers of bluebird bio, Inc. filed a class action complaint against the company's officers and directors for alleged violations of the Securities Exchange Act of 1934 between December 11, 2017 and November 29, 2018. bluebird bio, Inc. is a clinical-stage biotechnology company developing transformative gene therapies for genetic diseases and cancer. View this information on the law firm's Shareholder Rights Blog: https://www.robbinsarroyo.com/bluebird-bio-inc/ bluebird bio Failed to Disclose Relevant Material Facts to Mislead Shareholders of Regulatory Approval Prospects According to the complaint, beginning on December 11, 2017, bluebird bio touted the efficacy and future prospects of its LentiGlobin™ gene therapy. Then, on December 1, 2018, bluebird issued a press release advising investors that it had "announced new long-term data from the completed Phase 1/2 Northstar (HGB-204) study of investigational LentiGlobin™ gene therapy in patients with transfusion-dependent β-thalassemia (TDT) and from the ongoing Phase 1/2 HGB-206 study of LentiGlobin in patients with sickle cell disease (SCD)." bluebird's reported results cast doubt on the efficacy of LentiGlobin in increasing the production of anti-sickling hemoglobin. On December 3, 2018, Seeking Alpha published an article noting that these "results were lower than initial data reported a year ago indicating a lower rate of production of anti-sickling hemoglobin." Following the clinical studies' results announcement, bluebird's stock price fell $6.39, or 5.2%, to close at $116.50. Bluebird bio Shareholders Have Legal Options Concerned shareholders who would like more information about their rights and potential remedies: Leonid Kandinov, Esq. Robbins Arroyo LLP 600 B Street, Suite 1900 San Diego, CA 92101 Telephone: (619) 525-3990 Toll Free: (800) 350-6003 Email: LKandinov@robbinsarroyo.com [GN] BLUEGREEN VACATIONS: Wijesinha Sues over Unsolicited Phone Calls ---------------------------------------------------------------- SHEHAN WIJESINHA, individually and on behalf of all others similarly situated, the Plaintiff, vs. BLUEGREEN VACATIONS, INC., the Defendant, Case No. 1:19-cv-20073-CMA (S.D. Fla., Jan. 7, 2019), seeks injunctive relief to halt Defendant's illegal conduct under the Telephone Consumer Protection Act. The Defendant is a vacation ownership and experiences company based in Boca Raton. As part of its marketing strategy, the Defendant utilizes automatic telephone dialing systems to place calls to unsuspecting consumers on their cellular telephones to sell their vacations services and goods. The Defendant caused thousands of calls to be placed to the cellular telephones of Plaintiff and Class Members, causing them injuries, including invasion of their privacy, aggravation, annoyance, intrusion on seclusion, trespass, and conversion. According to the complaint, on or about December 11, 2018, the Defendant called Plaintiff's cellular telephone number ending in 7557. The Plaintiff heard a pause before he was greeted by a live person. This pause is indicative of automatic telephone dialing system technology. When Plaintiff was transferred to a live person, the person indicated that they were an employee of BlueGreen Vacations and promoted BlueGreen Vacations' services. The Plaintiff is the subscriber and sole user of the 7557 Number. The Defendant called Plaintiff from 417-413-4979, a number which upon information and belief, Defendant owned and/or operated. At no point in time did Plaintiff provide Defendant with written express consent to be contacted. Defendant's unsolicited calls caused Plaintiff actual harm, including invasion of his privacy, aggravation, annoyance, intrusion on seclusion, trespass, and conversion. Defendant's calls also inconvenienced Plaintiff and caused disruption to his daily life, the lawsuit says.[BN] Counsel for Plaintiff Ignacio J. Hiraldo, Esq. Manuel S. Hiraldo, Esq. IJH LAW 1200 Brickell Ave Suite 1950 Miami, FL 33131 E-mail: ijhiraldo@ijhlaw.com Telephone: (786) 496 4469 - and - Manuel S. Hiraldo, Esq. HIRALDO P.A. 401 E. Las Olas Boulevard, Suite 1400 Ft. Lauderdale, FL 33301 E-mail: mhiraldo@hiraldolaw.com Telephone: (954) 400 4713 BOLT THREADS: Faces Garey Suit Asserting ADA Violation ------------------------------------------------------ Bolt Threads, Inc. is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Kevin Garey, on behalf of himself and all others similarly situated, Plaintiff v. Bolt Threads, Inc., Defendant, Case No. 1:19-cv-00344 (S.D. N.Y., January 13, 2019). Bolt Threads Inc. engages in the manufacture of fibers and fabrics. The company was formerly known as Refactored Materials, Inc. and changed its name to Bolt Threads Inc. in May 2014. Bolt Threads Inc. was founded in 2009 and is based in Emeryville, California.[BN] The Plaintiff is represented by: Jonathan Shalom, Esq. Shalom Law, PLLC. 124-04 Metropolitan Avenue Kew Gardens, NY 11374 Tel: (516) 807-1748 Email: jshalom@jonathanshalomlaw.com BROADWAY BEAUTY: Nunez Sues Over Unpaid Minimum, Overtime Wages --------------------------------------------------------------- Sucre Nunez, on behalf of himself and all other persons similarly situated, Plaintiff, v. Broadway Beauty Wholesale Inc., Musthafa Kamal, and John Does #1-10, Defendants, Case No. 1:19-cv-00362 (S.D. N.Y., January 14, 2019) alleges against Defendants, who elect to opt into this action pursuant to the Fair Labor Standards Act ("FLSA"), that they are entitled to: (i) unpaid wages from defendants for overtime work for which they did not receive overtime premium pay as required by law, and (ii) liquidated damages pursuant to the FLSA. Mr. Nunez further complains that he is entitled to (i) compensation for wages paid at less than the statutory New York minimum wage; (ii) back wages for overtime work for which defendants willfully failed to pay overtime premium pay as required by the New York Labor Law and the supporting New York State Department of Labor regulations; (iii) liquidated damages pursuant to New York Labor Law for these violations; and (iv) statutory damages for defendants' violation of the Wage Theft Prevention Act. Plaintiff Mr. Nunez was employed at Broadway Beauty from approximately August 2003 through August 2018. Mr. Nunez was employed as a retail sales clerk. Mr. Nunez's work was performed in the normal course of defendants' business and was integrated into the business of defendants, and did not involve executive or administrative responsibilities. When he got checks, Mr. Nunez would receive paystubs; those paystubs did not list his hours worked and did not reflect the cash payments he was also receiving. The amount of pay that Mr. Nunez received did not vary based on the precise number of hours that he worked in a week. As a result, commencing in about 2017, Mr. Nunez's effective rate of pay was below the statutory New York minimum wages in effect at applicable times. The Defendants' failure to pay Mr. Nunez amounts at least equal to the New York state minimum wage in effect during relevant time periods was willful, and lacked a good faith basis. In addition, defendants failed to pay Mr. Nunez any overtime "bonus" for hours worked beyond 40 hours in a workweek, in violation of the FLSA, the New York Labor Law, and the supporting New York State Department of Labor regulations, says the complaint. Sucre Nunez is an adult individual residing in the Bronx, New York. Broadway Beauty Wholesale Inc. is a New York corporation with a principal place of business at 28 West 28th Street, New York, New York.[BN] The Plaintiff is represented by: David Stein, Esq. SAMUEL & STEIN 38 West 32nd Street, Suite 1110 New York, NY 10001 Phone: (212) 563-9884 Email: dstein@samuelandstein.com BUFFALO FUEL: Jorge Torres Seeks Overtime Wages ----------------------------------------------- JORGE TORRES, individually, and on behalf of other individuals similarly situated, the Plaintiff, vs. BUFFALO FUEL CORP., the Defendant, Case No. 1:19-cv-00041 (W.D.N.Y., Jan. 7, 2019), seeks to recover overtime wages under the Fair Labor Standards Act and New York Labor Law. The Plaintiff brings this claim under the FLSA and for Defendant failing to pay Plaintiff, and other similarly situated employees, at a rate equal to one and one-half times their regular rate of pay (overtime) for all hours worked in excess of 40 in individual work weeks. As a result of Defendant's willful violations of the New York Labor Law and supporting regulations, the Plaintiff and the Collective have suffered damages, the lawsuit says. Buffalo Fuel Corp. provides trucking transportation services. The Company offers transportation of hazardous waste materials, waste consulting, safety, and road call.[BN] Attorneys for Plaintiff: Rafael O. Gomez, Esq. GOMEZ & BECKER, LLP 2746 Delaware Avenue The Eberhardt Mansion Buffalo, NY 14217 Telephone: (716) 873-0333 E-mail: rgomez@gomezbecker.com BUGATCHI GROUP: Violates ADA, Garey Suit Asserts ------------------------------------------------ Bugatchi Group, Inc is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Kevin Garey, on behalf of himself and all others similarly situated, Plaintiff v. Bugatchi Group, Inc, Defendant, Case No. 1:19-cv-00346 (S.D. N.Y., January 13, 2019). Bugatchi Group, Inc manufactures and supplies menswear to retail stores in the United States and internationally.[BN] The Plaintiff is represented by: Jonathan Shalom, Esq. Shalom Law, PLLC. 124-04 Metropolitan Avenue Kew Gardens, NY 11374 Tel: (516) 807-1748 Email: jshalom@jonathanshalomlaw.com CANADA: RCMP Faces Class Action Over Indigenous Mistreatment ------------------------------------------------------------ Bob Weber, writing for Surrey Now-Leader, reports that a class-action lawsuit filed in an Edmonton court alleges RCMP in the three northern territories regularly assault and abuse Indigenous people. "We know from anecdotal and media reports that this class is going to be quite significant," said Steven Cooper, Esq. one of the lawyers involved in the lawsuit filed against the federal government on Dec. 19. The statement of claim, which contains allegations that have not been proven in court, points to the example of David Nasogaluak, a resident of Tuktoyaktuk, N.W.T. It says that in November 2017, Nasogaluak, then 15, was stopped and questioned by officers as he was riding his snowmobile outside town with five friends. The statement says officers beat, choked, punched, Tasered and used racial insults against Nasogaluak. It says he was handcuffed and taken to the police station, where he was released without charge. Officers continued to drive by Nasogaluak's home until his mother called to complain. The lawsuit says Nasogaluak suffered lasting physical and emotional damage, and has since quit school. Such treatment is far too common across Yukon, the Northwest Territories and Nunavut, the statement says. "It is well known in the territories that Aboriginal persons are improperly targeted by the RCMP on the basis of their race, ancestry and beliefs." Cooper, who has long legal experience in both Nunavut and the N.W.T., said the courts must first rule that there is an issue to be considered, which would define who was eligible to be a plaintiff in the class action. If the courts certify the lawsuit, appropriate plaintiffs can then sign on. He said his office routinely receives complaints about RCMP misbehaviour. "It is indicative of what's happening across the country. There's no shortage of videos." One such video documented the apparent beating of Bernard Naulilak in RCMP cells in July 2016 and led to a debate in the Nunavut legislature about whether the territory should form a civilian body to review complaints against the force. Nor was that the first time the issue was debated by Nunavut lawmakers. In 2015, a report was commissioned into police misconduct. The report was never released. A letter that year from Nunavut's legal-aid service suggested it had information on 30 cases of excessive use of force. The service's chairwoman has said there were 27 civil cases filed between 2014 and 2017. In 2010, the Yukon government released its own report on similar concerns. That led to the formation of a council that visits the territory's communities annually to discuss policing concerns. RCMP in Nunavut have defended their record. Statistics released by the territory's V Division indicate Mounties responded to 27,000 calls and held 7,500 people in custody last year. The force received 13 complaints between 2016 and 2018. Cooper said such numbers reveal little. Misconduct complaints are always going to be swamped in Nunavut by the huge numbers of arrests, he said. As well, few in tiny, remote communities far from legal advice are willing to take on authority. "The complaint system is intimidating and not very friendly. Most people won't know about it, won't know how to access it and have zero faith in the ability of the complaints commission to deal with these types of issues."[GN] CAREEXPAND LLC: Fails to Pay Overtime Under FLSA, Darden Alleges ---------------------------------------------------------------- DAPHINE DARDEN and FELICIA HINOJOSA, Individually and on Behalf of All Others Similarly Situated v. CAREEXPAND, LLC, Case No. 3:19-cv-00023-B (N.D. Tex., January 4, 2019), arises from the Defendant's alleged widespread violations of the overtime provisions of the Fair Labor Standards Act, which requires employers to compensate their employees for a workweek longer than 40 hours at a rate not less than one and one-half times the regular rate at which the employee is employed. CareExpand, LLC, is a Texas limited liability company. The Company provides an online medical service platform that connects physicians with their patients and colleagues.[BN] The Plaintiffs are represented by: Brandi J. McKay, Esq. Katherine Valent, Esq. SCHEEF & STONE, L.L.P. 500 North Akard, Suite 2700 Dallas, TX 75201 Telephone: (214) 706-4200 Facsimile: (214) 706-4242 E-mail: brandi.mckay@solidcounsel.com Katherine.valent@solidcounsel.com CARMAX AUTO: Doucette Seeks to Recover Minimum and Overtime Wages ----------------------------------------------------------------- JONATHAN DOUCETTE, on behalf of himself and all others similarly situated v. CarMax Auto Superstores, Inc., Case No. 1:19-cv-10031-GAO (D. Mass., January 7, 2019), seeks to recover alleged unpaid overtime wages, minimum wages, Sunday premium pay, and reimbursement for improper deductions under the Fair Labor Standards Act. CarMax Auto Superstores, Inc., is a foreign corporation with a principal office located in Richmond, Virginia. The Defendant operates a chain of automobile dealerships in Massachusetts and other states that is known as "CarMax." The Defendant sells tangible personal products -- i.e. cars -- through its CarMax dealerships to members of the public.[BN] The Plaintiff is represented by: Brook S. Lane, Esq. Hillary Schwab, Esq. FAIR WORK, P.C. 192 South Street, Suite 450 Boston, MA 02111 Telephone: (617) 607-3260 E-mail: brook@fairworklaw.com hillary@fairworklaw.com CERTIFIED RECOVERY: Placeholder Bid for Class Certification Filed ----------------------------------------------------------------- In the class action lawsuit captioned KAYLA STAMM, Individually and on Behalf of All Others Similarly Situated, the Plaintiff, v. CERTIFIED RECOVERY INC., the Defendant, Case No. 2:19-cv-00026-JPS (E.D. Wisc.), the Plaintiff asks the Court for an order certifying classes in this case, appointing the Plaintiff as class representative, and appointing Ademi & O'Reilly, LLP as Class Counsel, and for such other and further relief as the Court may deem appropriate. The Plaintiff further asks that the Court stay this class certification motion until an amended motion for class certification is filed, and that the Court grant the parties relief from the local rules' automatic briefing schedule and requirement that Plaintiff file a brief and supporting documents in support of this motion. 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. Fulton Dental, LLC v. Bisco, Inc., 860 F.3d 541, 545-46 (7th Cir. 2017).[CC] Attorneys for Plaintiff: Mark A. Eldridge, Esq. John D. Blythin, 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 CONNECTICUT: McNee Seeks Certification of Class and Subclass ------------------------------------------------------------ The Plaintiffs in the lawsuit styled DAVID MCNEE, DEBORAH CARR EDINELIS VEGA, Plaintiffs, Individually and on behalf of all other persons similarly situated, and IDA DAVIDSON, ERNESTINE COLEMAN TERRILYNNE TRUDEAU, MATTHEW IBRAHIM, Plaintiffs, Individually and on behalf of all Other persons similarly situated v. RODERICK BREMBY, in his official capacity as Commissioner of the State of Connecticut Department of Social Services, Case No. 3:19-cv-00035 (D. Conn.), ask the Court to certify the case as a class action pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure. The Plaintiffs seek certification of a class and subclass consisting of these individuals: * Primary Class: All Connecticut residents who receive, or who in the future will have their non emergency medical transportation Medicaid benefits denied, reduced, suspended, and/or terminated without receiving adequate written notice with adequate factual information about the basis for the decision and the recipient's right to a hearing; and * Subclass: Members of the main class who are unable to travel by way of public transit due to their disability and must instead take a specialized mode of transportation such as a wheelchair van, stretcher transport, or other vehicle necessary as a result of their disability. The proposed Classes each satisfy the numerosity, commonality, typicality, and adequacy of representation requirements of Rule 23(a)(1) through (4), the Plaintiffs contend. The Plaintiffs add that the Defendants have acted or refused to act with respect to the class as a whole, thereby, making declaratory and injunctive relief appropriate for the class as a whole, in accordance with Rule 23(b)(2).[CC] The Plaintiffs are represented by: Kristen Noelle Hatcher, Esq. CONNECTICUT LEGAL SERVICES, INC. 16 Main Street New Britain, CT 06050 Telephone: (860) 357-9308 E-mail: Khatcher@connlegalservices.org - and - James S. Haslam, Esq. CONNECTICUT LEGAL SERVICES, INC. 125 Eugene O'Neill Drive, Suite 120 New London, CT 06320 Telephone: (860) 271-7312 E-mail: jhaslam@connlegalservices.org CONNECTICUT: Murphy Files Civil Rights Class Action --------------------------------------------------- A class action lawsuit has been filed against the officials of the State of Connecticut. The case is styled as Kyle Murphy, individually and on behalf of others similarly situated, Plaintiff v. Mayor Joseph Maturo, in His Official and Individual Capacities, Lt. David Emerman, in His Individual Capacity, Chief of Police Ed Lennon, in His Official and Individual Capacities, Sgt. Stephen Paulsen, in His Individual Capacity, Officer Kershen Bissette, in His Individual Capacity, Brent Larrabee, in His Individual Capacity, Frank Gentilesco, in His Individual Capacity, Attorney Joseph Zullo, in His Official Capacity and Attorney Frank J. Kolb, in His Individual Capacity, Defendants, Case No. 3:19-cv-00055 (D. Conn., January 11, 2019). The docket of the case states the nature of suit as violation of civil rights. Joseph Maturo Jr. is a politician. He is the long-term mayor of East Haven, Connecticut. He is a Republican and with his re-election in 2005, he became the second person in East Haven history to be elected for five terms as mayor, serving 1997-2007. The Plaintiff is represented by: Rachel M. Baird, Esq. 15 Burlington Road Harwinton, CT 06791 Tel: (860) 605-9340 Fax: (860) 605-9343 Email: rbaird@rachelbairdlaw.com CONTRA COSTA COUNTY, CA: Summ. Judgment Bid in Farrow Suit Granted ------------------------------------------------------------------ In the case, JOHN FARROW, et al., Plaintiffs, v. CONTRA COSTA COUNTY, Defendant, Case No. 12-cv-06495-JCS (N.D. Cal.), Magistrate Judge Joseph C. Spero of the U.S. District Court for the Northern District of California (i) granted in part the County's motion to exclude expert testimony; (ii) denied the Plaintiffs' motion for summary judgment; (iii) granted the County's motion for summary judgment as to the Plaintiffs' Sixth Amendment claim; and (iv) dismissed the Plaintiffs' state law claim for lack of jurisdiction. Farrow and Jerome Wade brought the putative class action asserting a number of claims based on the alleged failure of Defendant Contra Costa County to provide appointed counsel at the Plaintiffs' first court appearances, or within a reasonable time thereafter, in criminal proceedings in state court. After multiple motions to dismiss, an appeal to the Ninth Circuit, and remand to the Court, the Plaintiffs' remaining claims are for failure to provide the counsel as required by the Sixth Amendment within a reasonable time after the right attached, and for a writ of mandamus to enforce Contra Costa Public Defender Robin Lipetzky's obligations under section 27706 of the California Government Code. In accordance with the case schedule set by the Court, the parties now bring cross motions for summary judgment on the Plaintiffs' individual claims before the question of class certification has been addressed, and the County moves to exclude the opinions of the Plaintiffs' expert witness. The Court held a hearing on Jan. 19, 2018. The Plaintiffs seek summary judgment granting equitable relief and nominal damages on their individual claims, or alternatively, summary adjudication of issues including whether they were deprived of their Sixth Amendment right to the counsel and whether the County had a policy of deliberate indifference to the Plaintiffs' rights. The County argues that the Plaintiffs' motion should be denied because it fails to address the circumstances of the Plaintiffs' individual experiences during their criminal prosecutions. It contends that it did not have a policy of withholding representation for a period of days, but rather did not provide counsel at first appearances because the Public Defender's Office did not have a sufficient number of attorneys to staff those appearances. The County argues in its motion for summary judgment that the reasonableness determination focuses on the consequences, if any, of the delay on the criminal defendant's ability to defend the charges against her/him. It contends that the Sixth Amendment only protects the right to a fair trial, and that the Court should reconsider its previous order holding that an unreasonable delay in providing counsel is distinct from the Strickland and Cronic framework for evaluating ineffective assistance of the counsel. The Plaintiffs argue that the County's argument that actual prejudice is required is a nonstarter, as the County bizarrely insists upon a legal standard that both this Court and the Ninth Circuit Court of Appeals have explicitly rejected. The County moves to exclude the opinions of the Plaintiffs' expert Robert Boruchowitz, arguing that his testimony only "fits" the case if it corresponds to harms that actually befell Farrow and Wade, and faulting Boruchowitz for failing to review evidence regarding the particular prosecutions at issue in the case. Among other things, Magistrate Judge Spero finds that to the extent that the Court looks more generally to whether the County's former policy violated the Sixth Amendment rights of criminal defendants as a class, Boruchowitz's expertise and experience qualifies him to identify risks associated with delayed appointment of the counsel, and his statements identifying such risks are admissible expert opinion. He denied the County's motion as to those portions of Boruchowitz's report. But while those ill effects support a conclusion that delay is bad, it is less clear whether they can support a conclusion that a particular period of delay is or is not reasonable. Boruchowitz's ultimate conclusion is not based on any discernable framework for determining reasonableness. See Boruchowitz Report. If Boruchowitz's opinion is read more liberally as requiring appointment as soon as reasonably possible, it only begs the original question of what delay is reasonable. The County's motion to exclude these opinions on the ultimate question at issue is granted. He agrees with the County, however, that statements by Lipetzky do not constitute binding judicial admissions on behalf of the County, nor are her or any other witness's personal opinions as to what the Sixth Amendment requires in this context relevant to the Court's interpretation of the law. The Judge also finds that the Plaintiffs cannot prevail based on a per se rule of when the counsel should be appointed, a theory of systemic deficiency based on a generally applicable policy of delay, or a theory that deliberate inaction or indifference itself violates the Sixth Amendment without need to consider the specific circumstances of their own appointment of the counsel. Because Coker's opinion as to how much time is reasonable for a public defender's office to resolve conflicts of interest in a case like Wade's, that issue is undisputed, and taking into account the fact that there is no evidence that the delay left counsel with insufficient time to prepare for a critical stage, no rational finder of fact could conclude on this record that the four-day delay in Wade's case was unreasonable. The County's motion for summary judgment is therefore granted as to Wade's Sixth Amendment claim, and the Plaintiffs' motion is denied as to that claim. Because he concludes that a rational finder of fact could not find on the record that provision of the counsel to Farrow and Wade was unreasonably delayed for the purpose of the Sixth Amendment, the Magistrate does not reach the parties' remaining arguments regarding the Sixth Amendment claim, including whether Farrow is collaterally estopped from bringing such a claim and whether the practices at issue violated the Sixth Amendment rights of potential class members other than the current Plaintiffs. Finally, he finds that the Plaintiffs present no argument in their briefs why the case warrants a deviation from the usual approach of declining to exercise state law claims after all federal claims have been dismissed. He therefore grants the County's request and dismisses the Plaintiffs' section 27706 for lack of subject matter jurisdiction, without prejudice to them bringing that claim in a court of competent jurisdiction. Magistrate Judge Spero concludes that a reasonable finder of fact could not find that the delay in providing the counsel after the Plaintiffs' first appearances in their criminal cases was constitutionally unreasonable. To be clear, in reaching this determination, he considers only what conclusions can be drawn from the record available, and does not purport to hold that a four- or 12-day delay is presumptively reasonable, or that an interview by a paralegal before the counsel is appointed can necessarily substitute under the Sixth Amendment for providing an attorney. Based on the evidence presented in the case, however, the Plaintiff's motion for summary judgment is denied, the County's motion for summary judgment is granted as to the Plaintiffs' claim under 42 U.S.C. Section 1983 and the Sixth Amendment, and the Plaintiffs' claim under California Government Code section 27706 is dismissed for lack of subject matter jurisdiction, without prejudice to the Plaintiffs bringing that claim in a court of competent jurisdiction. The Clerk is instructed to enter judgment accordingly and to close the file. Because the claims of the putative class are not before the Court, the Order does not bar absent putative class members from bringing any claim in a separate action. A full-text copy of the Court's Jan 2, 2019 Order is available at https://is.gd/QHKXhn from Leagle.com. John Farrow, on his behalf, and on behalf of all others similarly situated & Jerome Wade, on his behalf, and on behalf of all others similarly situated, Plaintiffs, represented by Christopher Alan Martin -- chris@martindefenders.com -- at Martin Law Offices, Michael E. Dietrick -- dietrick@pacbell.net -- at Law Offices of Michael Dietrick & Michael Emery Dietrick, Attorney at Law. Contra Costa County, Defendant, represented by D. Cameron Baker -- cameron.baker@cc.cccounty.us -- at County of Contra Costa. CREDIT BUREAU: Court Certifies Class in Bassett FDCPA/NCPA Suit --------------------------------------------------------------- In the case, KELLY M. BASSETT, individually and as heir of James M. Bassett, on behalf of herself and all other similarly situated; Plaintiff, v. CREDIT BUREAU SERVICES, INC., and C.J. TIGHE, Defendants, Case No. 8:16CV449 (D. Neb.), Judge Joseph F. Bataillon of the U.S. District Court for the District of Nebraska granted the Plaintiff's motion for class certification. The case is a putative class action for violations of the Fair Debt Collection Practices Act ("FDCPA"), and the Nebraska Consumer Practices Act ("NCPA"). The Plaintiff challenges a collection letter sent to her by the Defendants. The time period for violations of the FDCPA is one year period prior to the filing of the litigation, i.e., Oct. 3, 2015, through the date of class certification. he time period for violations of the NCPA is four years prior to the filing of the litigation, i.e., Oct. 3, 2012, through the date of certification. On Oct. 3, 2016, Bassett, individually and as the heir of James Bassett, brought an action against the Defendants, alleging that the letter at issue is false or misleading because it: (1) identified an appointment but did not identify the location of the appointment; (b) identified a Norfolk address, but also listed a P.O. Box in Fremont; and (c) stated that teh Defendants would proceed with collection efforts if the appointment was not kept. She alleges the letter was confusing. The record shows the Defendants sent at least 9,796 of the challenged standard debt collection letters during the class periods defined in the case. Over 4,000 of those letters sought collection of an allegedly unpaid medical account. Defendant Tighe owns and runs CBS. Credit Bureau Services' debtor profile and collection notes for the Bassetts shows that Credit Bureau Services sent the collection letter at issue to them. The computer inserts the consumer-specific information into the collection letter. The Plaintiff seeks certification of a class defined as (i) all persons with addresses in Nebraska; (ii) to whom the Defendants sent a letter in the form of Exhibit A (Filing No. 1-1); (iii) in an attempt to collect a debt incurred for personal, family or household purposes as shown by Defendants' or the creditors' records; (iv) allegedly due for a medical obligation. The Defendants are opposed to class certification. They first argue that a class should not be certified because the Plaintiff lacks Article III standing to pursue her claims. Next, they argue the Plaintiff cannot satisfy Rule 23(b)(2) since the FDCPA does not provide for injunctive relief and injunctive relief is the primary relief that the plaintiff seeks. Finally, they argue that the Plaintiff cannot satisfy Rule 23(b)(3) because a particularized review would be required to determine: (1) if the alleged violation was material (e.g., if each member actually reviewed the letter at issue); and (2) whether the debt was commercial or consumer; and (3) whether a class member's claim may be barred by a previously litigated class action. Judge Bataillon finds that the requirements of Rule 23 have been met and the proposed class should be certified. The Rule 23(b)(3) requirements are likewise satisfied. He also finds that certifying the class will achieve economies of time, effort, and expense, and will promote uniformity as to similarly-situated persons, without sacrificing procedural fairness. Because individual recoveries in this type of action are small, a class action is superior to other methods of fairly adjudicating the controversy. Accordingly, he granted the Plaintiff's motion for class certification. The action is certified as a class action pursuant to Fed. R. Civ. P. 23(a) and 23(b)(3) on behalf of the following classes: A. FDCPA Class: (i) all persons with addresses in Nebraska; (ii) to whom the defendants sent a letter in the form of Exhibit A (Filing No. 1-1) (identified in the Defendants' records as B-10) from Oct. 3, 2015, through this date; (iii) in an attempt to collect a debt incurred for personal, family or household purposes as shown by the Defendants' or the creditors' records; (iv) allegedly due for a medical obligation; (v) that was not returned as undeliverable; (vi) excluding members of the class certified in Kenneth M. Reynolds v. Credit Bureau Services, Inc. and C.J. Tighe, No. 8:15-cv-00168. B. NCPA Class: (i) all persons with addresses in Nebraska; (ii) to whom the defendants sent a letter in the form of Exhibit A (Filing No. 1-1) (identified in the defendants' records as B-10) from Oct. 3, 2012, through this date; (iii) in an attempt to collect a debt incurred for personal, family or household purposes as shown by the Defendants' or the creditors' records; (iv) allegedly due for a medical obligation; (v) that was not returned as undeliverable; (vi) excluding members of the class certified in Kenneth M. Reynolds v. Credit Bureau Services, Inc. and C.J. Tighe, No. 8:15-cv-00168. The Judge appointed Bassett as the representative Plaintiff; and the Horwitz, Horwitz Law Firm and the Car, Reinbrecht Law Firm as the class counsel. The parties will contact Magistrate Judge Susan M. Bazis to set a status conference on further progression of the case. A full-text copy of the Court's Jan 4, 2019 Memorandum and Order is available at https://is.gd/8mIBMU from Leagle.com. Kelly M. Bassett, individually and as heir of James M. Bassett, on behald of herself and all other similarly situated, Plaintiff, represented by O. Randolph Bragg -- rand@horwitzlaw.com -- HORWITZ, HORWITZ LAW FIRM, Pamela A. Car -- pacar@cox.net -- CAR, REINBRECHT LAW FIRM & William L. Reinbrecht, CAR, REINBRECHT LAW FIRM. Credit Bureau Services, Inc. & C. J. Tighe, Defendants, represented by Joshua C. Dickinson -- jdickinson@spencerfane.com -- SPENCER, FANE LAW FIRM & Shilee T. Mullin -- smullin@spencerfane.com -- SPENCER, FANE LAW FIRM. CUYAHOGA COUNTY, OH: Sued Over County Jail Conditions ----------------------------------------------------- Drew Scofield, writing for News 5 Cleveland, reports that a Cleveland law firm said on De. 20 they have filed a class action lawsuit regarding deplorable conditions at the Cuyahoga County Jail. Attorneys from the firm of Friedman & Gilbert held a press conference on Dec. 20 discussing the pending lawsuit against the county, Cuyahoga County Executive Armond Budish, county sheriff Clifford Pinkney and other jail officials. "The lawsuit is a critical step toward addressing a multitude of constitutional rights violations suffered by people in the custody of the County Jail," according to a news release from the law firm. The lawsuit seeks "judicial intervention and independent oversight for the implementation of comprehensive remedies to eliminate the deplorable conditions inmates have endured and will continue to endure if immediate relief is not forthcoming." The lawsuit comes on the heels of a report released by the U.S. Marshals Service about conditions in the jail. U.S. Marshal Pete Elliott said the jail review team found the Cuyahoga County Jail to be "one of the worst in the country." Inmates who reside in the Cuyahoga County Jail are forced to live in unacceptable conditions in an inhumane environment where basic civil liberties are withheld, sometimes as a form of punishment by staff, according to the facility review report from the U.S. Marshals Service. Inmates at the facility have "suffered both physical and psychological consequences resulting from these inexcusable conditions," the firm stated. Multiple inmates have died at the jail, and according to the U.S. Marshals Service, there were 55 suicide attempts at the facility last year. In wake of the report, the U.S. Marshals pulled federal inmates out of the Cuyahoga County Jail downtown and are now housing their prisoners in the Euclid Jail Annex, which is part of the county system. The law firm states that "incompetent supervision and management" has allowed jail conditions to fester over the years. Federal courts have stepped in on three separate occasions since 1975 to address various issues at the jail, attorneys said. The U.S. Marshals have confirmed that both the FBI and Cuyahoga County Inspector General are conducting investigations into civil rights issues inside the jail.[GN] DENTSPLY SIRONA: Bernstein Litowitz Files Securities Class Action ----------------------------------------------------------------- Bernstein Litowitz Berger & Grossmann LLP has filed a securities class action lawsuit on behalf of the Boynton Beach Employees' Pension Plan against Dentsply Sirona, Inc. ("Dentsply" or the "Company") (NASDAQ: XRAY) and certain of its senior officers and directors ("Defendants"). The action, which is captioned Boynton Beach General Employees' Pension Plan v. Dentsply Sirona, Inc., No. 18-cv-7253 (E.D.N.Y.) ("Boynton Beach"), asserts claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 ("Exchange Act") on behalf of investors in Dentsply common stock during the time period of February 20, 2014 through August 7, 2018 (the "Class Period"). The action also asserts claims under Section 14(a) of the Exchange Act on behalf of investors in Dentsply's predecessor, Dentsply International, Inc., who were entitled to vote with respect to Dentsply International, Inc.'s acquisition of Sirona Dental Systems, Inc. ("Sirona") on or about February 29, 2016 (the "Acquisition"). The action also asserts claims under Section 11, 12 and 15 of the Securities Act of 1933 on behalf of all persons who purchased or otherwise acquired the common stock of Dentsply in exchange for their shares of the common stock of Sirona in connection with the Acquisition. The Complaint alleges that during the Class Period, Defendants falsely represented the drivers of the Company's financial performance. Specifically, Defendants attributed the Company's financial performance to the Company's "innovation," "operational improvement efforts," "new products," and "continued investments in sales and marketing" and told investors that these factors helped the Company succeed despite the "highly competitive" market for its products. In reality, the Company's financial results had been buoyed by an anticompetitive scheme among the Company's three primary distributors that suppressed competition in the dental supply market and artificially inflated the price of dental supplies sold by Dentsply. Further, Defendants concealed that an exclusive distribution arrangement that Sirona had with one of its distributors, Patterson Companies, Inc. ("Patterson"), required Patterson to regularly make large minimum purchases regardless of demand and, as a result, by 2015, Patterson had been supplied with so much excess inventory that it could not be sold. This channel-stuffing rendered the Company's reported sales, financial results and guidance materially false and misleading. In addition, the Company represented that it reported its financial statements, including its goodwill, in accordance with generally accepted accounting principles, or GAAP. In reality, the Company's reported goodwill was artificially inflated and not reported in accordance with GAAP because it did not reflect the financial impact of the anticompetitive scheme. The truth about Dentsply's financial condition and business was revealed in a series of corrective disclosures. Specifically, in a series of disclosures culminating on August 7, 2018, the Company disclosed that it was subject of an investigation by the Securities and Exchange Commission, announced the surprise departure of the Company's top three executives, repeatedly downwardly revised its guidance, and reported several quarters of disappointing financial results and significant goodwill impairment charges that were attributed to, among other things, an "increase in competition" and destocking from the Company's dealer partners, including Patterson. In all, when the truth concerning the fraud and its impact on the Company's financial condition was revealed to investors, Dentsply stock declined by over 45% from its Class Period high. A copy of the complaint filed in Boynton Beach is available on BLB&G's website at www.blbglaw.com. If you wish to serve as Lead Plaintiff for the Class, you must file a motion with the Court no later than February 19, 2019, which is the first business day on which the U.S. District Court for the Eastern District of New York is open that is 60 days after the publication date of December 20, 2018. Any member of the proposed Class may move the Court to serve as Lead Plaintiff through counsel of their choice. Members may also choose to do nothing and remain part of the proposed Class. Michael Blatchley, Esq. Bernstein Litowitz Berger & Grossmann LLP 1251 Avenue of Americas New York, New York 10020 Telephone: (212) 554-1281 Email: michaelb@blbglaw.com [GN] DENTSPLY SIRONA: Bronstein Gewirtz Files Class Action Lawsuit ------------------------------------------------------------- Bronstein, Gewirtz & Grossman, LLC notified investors that a class action lawsuit has been filed against Dentsply Sirona, Inc. ("Dentsply" or the "Company") (NASDAQ: XRAY) and certain of its officers, on behalf of shareholders who purchased or otherwise acquired Dentsply shares between February 20, 2014 through August 7, 2018, both dates inclusive (the "Class Period"). Such investors are encouraged to join this case by visiting the firm's site: bgandg.com/xray. This class action seeks to recover damages against Defendants for alleged violations of the federal securities laws under the Securities Exchange Act of 1933 and the Securities Exchange Act of 1934 The Complaint alleges that throughout the Class Period, Defendants made materially false and/or misleading statements, specifically relating to its financial performance and its "innovation," "operational improvement efforts," "new products," and "continued investments in sales and marketing." The complaint alleges that: (1) Dentsply was engaged in an anticompetitive scheme among its three primary distributors that suppressed competition and artificially inflated the price of Dentsply's products; and (2) Dentsply engaged in "channel-stuffing" which rendered the Company's reported sales, financial results and guidance materially false and misleading. On August 7, 2018, Dentsply divulged that it was under investigation by the Securities and Exchange Commission, revealed that three of its top executives were stepping down, lowered its guidance, and related disappointing financial results and a significant goodwill impairment charge. 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/xray 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 Dentsply you have until February 19, 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. Peretz Bronstein, Esq. Yael Hurwitz, Esq. Bronstein, Gewirtz & Grossman, LLC Telephone: 212-697-6484 Email: peretz@bgandg.com [GN] DENTSPLY SIRONA: Gainey McKenna Files Class Action Lawsuit ---------------------------------------------------------- Gainey McKenna & Egleston disclosed that a class action lawsuit has been filed against Dentsply Sirona, Inc. ("Dentsply" or the "Company") (Nasdaq: XRAY) in the United States District Court for the Eastern District of New York, on behalf of a class consisting of investors who purchased or otherwise acquired securities of Dentsply between February 20, 2014 through August 7, 2018 (the "Class Period"), seeking to recover damages caused by Defendants' violations of the federal securities laws and to pursue remedies under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act") and Rule 10b-5 promulgated thereunder. The action also asserts claims under Section 11, 12 and 15 of the Securities Act of 1933 on behalf of all persons who purchased or otherwise acquired the common stock of Dentsply in exchange for their shares of the common stock of Sirona in connection with the Acquisition. The Complaint alleges that Defendants falsely represented the drivers of the Company's financial performance. Defendants attributed the Company's financial performance to the Company's "innovation," "operational improvement efforts," "new products," and "continued investments in sales and marketing" and told investors that these factors helped the Company succeed despite the "highly competitive" market for its products. However, the Company's financial results had been buoyed by an anticompetitive scheme among the Company's three primary distributors that suppressed competition in the dental supply market and artificially inflated the price of dental supplies sold by Dentsply. Moreover, Defendants concealed that an exclusive distribution arrangement that Sirona had with one of its distributors, Patterson Companies, Inc. ("Patterson"), required Patterson to regularly make large minimum purchases regardless of demand and, as a result, by 2015, Patterson had been supplied with so much excess inventory that it could not be sold. This channel-stuffing rendered the Company's reported sales, financial results and guidance materially false and misleading. In addition, the Company represented that it reported its financial statements, including its goodwill, in accordance with generally accepted accounting principles, or GAAP. In reality, the Company's reported goodwill was artificially inflated and not reported in accordance with GAAP because it did not reflect the financial impact of the anticompetitive scheme. The truth about the Company's financial condition and business was revealed in a series of corrective disclosures. In a series of disclosures culminating on August 7, 2018, the Company disclosed that it was subject of an investigation by the SEC, announced the surprise departure of the Company's top three executives, repeatedly downwardly revised its guidance, and reported several quarters of disappointing financial results and significant goodwill impairment charges that were attributed to, among other things, an "increase in competition" and destocking from the Company's dealer partners, including Patterson. When the truth concerning the fraud and its impact on the Company's financial condition was revealed to investors, Dentsply stock declined by over 45% from its Class Period high. Investors who purchased or otherwise acquired shares during the Class Period should contact the Firm prior to the February 19, 2019 lead plaintiff motion deadline. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. If you wish to discuss your rights or interests regarding this class action please; Thomas J. McKenna, Esq. Gregory M. Egleston, Esq. Gainey McKenna & Egleston Telephone: (212) 983-1300 Website: www.gme-law.com E-mail: tjmckenna@gme-law.com gegleston@gme-law.com [GN] DEX MEDIA: Alexander Suit Alleges FLSA Violation ------------------------------------------------ Jeanne Alexander, on behalf of herself and all others similarly situated v. Dex Media, Inc., aka DexYP, Case No. 3:18-cv-03230 (N.D. Tex., December 7, 2018), is brought against the Defendant for violations of the Fair Labor Standards Act and the federal Portal-to-Portal Pay Act. The Plaintiff alleges that the Defendant failed to pay the Plaintiff time and one-half her regular rate pay for all hours worked over 40 during each seven day workweek. The Plaintiff is a resident of Denton County, Texas and worked as an account manager/campaign manager for the Defendant from approximately August 2015 to February 2017. The Defendant Dex Media, Inc. provides advertising and marketing goods and services to customers throughout the United States. Examples of those goods and services include internet based advertising, search engine optimization, search engine marketing, website creation and services, directories, and yellow pages. [BN] The Plaintiff is represented by: Allen R. Vaught, Esq. BARON & BUDD, P.C. 3102 Oak Lawn Avenue, Suite 1100 Dallas, TX 75219 Tel: (214) 521-3605 Fax: (214) 520-1181 E-mail: avaught@baronbudd.com EMINENT INC: Garey Sues Online Retailer for ADA Breach ------------------------------------------------------- Eminent, Inc. is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Kevin Garey, on behalf of himself and all others similarly situated, Plaintiff v. Eminent, Inc., Defendant, Case No. 1:19-cv-00378 (S.D. N.Y., January 14, 2019). Eminent, Inc. engages in the online retail of clothing, shoes, bags, and accessories for women, men, and kids.[BN] The Plaintiff is represented by: Jonathan Shalom, Esq. Shalom Law, PLLC 124-04 Metropolitan Avenue Kew Gardens, NY 11374 Tel: (516) 807-1748 Email: jshalom@jonathanshalomlaw.com EMPRO INC: Fails to Pay Overtime Under FLSA, Dreval Suit Claims --------------------------------------------------------------- IRINA DREVAL, individually and on behalf of all others similarly situated v. EMPRO INC. and JOHN DOES 1-25, Case No. 1:19-cv-00091 (E.D.N.Y., January 7, 2019), arises from the Defendants' alleged: (i) failure to pay overtime as required by the Fair Labor Standards Act and the New York Labor Law; and (ii) failure to furnish accurate wage statements in violation of NYLL Section 195. Empro Inc. is a domestic corporation operating in the home healthcare industry in the City and State of New York, County of Kings. The identities of the Doe Defendants are currently unknown to the Plaintiff.[BN] The Plaintiff is represented by: David A. Feinerman, Esq. LAW OFFICE OF DAVID A. FEINERMAN 2765 Coney Island Avenue, 2nd Floor Brooklyn, NY 11235 Telephone: (718) 646-4800 EVOLUCION INNOVATIONS: Violates Disabilities Act, Garey Suit Says ----------------------------------------------------------------- Evolucion Innovations, Inc. is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Kevin Garey, on behalf of himself and all others similarly situated, Plaintiff v. Evolucion Innovations, Inc., Defendant, Case No. 1:19-cv-00392 (S.D. N.Y., January 14, 2019). Evolucion Innovations, Inc., doing business as evo, retails sports and outdoor lifestyle products. It offers products in the areas of ski, snowboard, wake, bike, skate, and surf; and accessories, shoes, and apparel for men, women, and kids. The company sells its products through its stores in Seattle, Washington; and Portland, Oregon.[BN] The Plaintiff is represented by: Jonathan Shalom, Esq. Shalom Law, PLLC 124-04 Metropolitan Avenue Kew Gardens, NY 11374 Tel: (516) 807-1748 Email: jshalom@jonathanshalomlaw.com EXXON MOBIL: 100% Fault in Baton Rouge Pipe Failure Suit Affirmed ----------------------------------------------------------------- The Court of Appeal of Louisiana, First Circuit, issued an Opinion affirming the City Court's judgment finding that Exxon was 100% at fault and liable for damages in the case captioned ANDRE AARON, ET AL., v. EXXON MOBIL CORPORATION. ANDRE AARON, ET AL., v. EXXONMOBIL, CORPORATION F/K/A EXXON COMPANY U.S.A., EXXON CORPORATION. CONSOLIDATED WITH GLORIA H. POOLE, ET AL., v. EXXONMOBIL, CORPORATION F/K/A EXXON COMPANY U.S.A., EXXON CORPORATION. ANDRE AARON, ET AL., v. EXXONMOBIL, CORPORATION F/K/A EXXON COMPANY U.S.A., EXXON CORPORATION. CONSOLIDATED WITH AYANNA ABADIE, ET AL., v. EXXONMOBIL, CORPORATION F/K/A EXXON COMPANY U.S.A., EXXON CORPORATION. CONSOLIDATED WITH ADELEAN McALOPE, ET AL., v. EXXONMOBIL, CORPORATION F/K/A EXXON COMPANY U.S.A., EXXON CORPORATION. No. 2018 CW 0476. (La. App.) The defendant, Exxon, appeals the city court's judgment after remand, finding that Exxon was 100% at fault and liable to the trial plaintiffs for damages. This case arises from a pipe failure and rupture that resulted in a fire at the Exxon refinery in Baton Rouge, at approximately 4:15 a.m. The fire occurred in the East Coker Unit of the Exxon refinery, one of three coker units at the refinery which converted high-sulfur, heavy crude oil into gasoline, diesel, and jet fuel. A carbon steel piping elbow that was a component part of the East Coker Unit ruptured, causing an explosion. Two minutes later, escaping hydrocarbon gases ignited, causing a fire. Six minutes later, a nearby flushing oil line ruptured, releasing additional fuel for the fire. With Exxon as the sole remaining defendant, the federal district court denied class certification, and following a bench trial, rendered judgment in favor of Exxon and against the plaintiffs, holding that Exxon was not liable to the plaintiffs for their alleged injuries under either a strict liability theory or negligence theory. The United States Court of Appeals for the Fifth Circuit affirmed. Baton Rouge City Court Litigation Prior to the handing down of the decision by the federal district court, approximately 8,500 plaintiffs who lived near the Exxon refinery at the time of the explosion and resulting fire filed three mass tort lawsuits against Exxon in city court, which are the subject of the instant supervisory writ application. The first suit was filed by 4,172 plaintiffs against Exxon. The second suit was filed by 2,939 plaintiffs against Exxon. The third suit was filed on behalf of 1,450 minor plaintiffs against Exxon. The city court conducted a trial on the claims of six plaintiffs out of the thousands who filed suit against Exxon. After closing arguments, the city court announced its ruling, holding that the trial plaintiffs proved their claims of negligence pursuant to La. C.C. art. 2315, and rendered judgment in favor of the trial plaintiffs, awarding damages. Appeals to the 19th JDC Exxon appealed from the portion of the city court's judgment finding Exxon negligent and awarding damages to the trial plaintiffs. Exxon argued that the city court erred in failing to assign any fault to Foster Wheeler and in awarding excessive damages to the plaintiffs, who they argued suffered minor symptoms or no symptoms at all and who never sought medical attention. The 19th JDC orally rendered judgment affirming the city court's judgment, which stated, in pertinent part: "Whereupon, the Court found that the City Court, the trial court in this matter, did not abuse its discretion. For these reasons[,] the Court affirmed the judgment from Baton Rouge City Court on December 10, 2014. The Court further adopts the Appellee's brief as its written reasons." Review by the First Circuit and Supreme Court Thereafter, Exxon applied for supervisory and/or remedial writs with the Louisiana Supreme Court. The supreme court granted writs and remanded the matter to this Court for consideration under our supervisory jurisdiction. Based on the directives of this Court and the supreme court, the city court was charged with: 1) reviewing the testimony and evidence received at the trial of this matter to determine whether, based on the record, Foster Wheeler was at fault, and if so, the percentage of fault attributable to Foster Wheeler; and 2) reviewing the testimony and evidence received at the trial of this matter and reconsidering its damage awards pursuant to Howard v. Union Carbide Corp., 2009-2750 (La. 10/19/10), 50 So.3d 1251. Neither this Court nor the supreme court ordered a new trial for the receipt of additional evidence and testimony. Remand to City Court Following remand, the city court heard oral arguments. Thereafter, the city court signed a judgment after remand which vacated and amended, in part, its prior judgment. The city court's judgment after remand decreed that Exxon was 100% at fault. Review by the First Circuit and Supreme Court Following Remand Exxon appealed the city court's judgment after remand to the 19th JDC. After briefing and oral arguments, the 19th JDC took the matter under advisement. Thereafter, the 19th JDC affirmed the city court's judgment after remand and adopted the brief of the trial plaintiffs as its written reasons for judgment. The appropriate standard for appellate review in this case is the manifest error-clearly wrong standard, which precludes the setting aside of the city court's finding of fact unless that finding is clearly wrong in light of the record reviewed in its entirety. It is well settled that a court of appeal may not set aside a fact-finder's finding of fact in the absence of manifest error or unless it is clearly wrong. Assignment of Error No. 1: Allocation of Fault In their first assignment of error, Exxon argues that the city court erred in imposing 100% fault on Exxon and failing to impose any fault on Foster Wheeler, a non-party to this litigation. Exxon argues that Foster Wheeler was solely responsible for creating the hazard that resulted in the fire. The court is required to determine the fault of all persons causing or contributing to injury, death, or loss, regardless of whether the person is a party to the action or a nonparty, and regardless of the theory of liability asserted against that party. Where non-parties are claimed by a defendant to be at fault in causing damages to the plaintiff, the burden shifts to the defendant to show the fault of the non-party by a preponderance of the evidence On appeal, Exxon argues that Foster Wheeler, not Exxon, was solely responsible for the design, construction, and testing of the component parts of the East Coker Unit, making Foster Wheeler solely at fault for installing a piping elbow made of the wrong material. Exxon argues that it had no actual knowledge that Foster Wheeler had installed a piping elbow made of the wrong material. Contrary to the plaintiffs' argument, Exxon further contends it should not have discovered the carbon steel piping elbow negligently installed by Foster Wheeler by conducting positive material identification (PMI) tests on every pipe and fitting in every coker unit because such an expectation is unreasonable. Exxon further avers that its program for testing pipe-wall thickness likewise met or exceeded industry standards. Finally, Exxon avers that the majority of, if not all of, the fault should be placed on Foster Wheeler because between the owner of a thing containing a hazard and the party who created the hazard, the majority of fault should be allocated to the party who created the hazard. The city court held that Foster Wheeler was not negligent, concluding that Foster Wheeler has no complicity in the events that ultimately caused the piping to rupture. Following this Court review of the record, including the city court's extensive reasons for judgment after remand, this Court concludes that Exxon failed to demonstrate by a preponderance of the evidence that Foster Wheeler's negligence contributed to the plaintiffs' injuries. In assessing the nature of the parties' conduct, factors that may influence the degree of fault allocated include: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger; (2) how great a risk was created by the conduct (3) the significance of what was sought by the conduct; (4) the capacities of the actor, whether superior or inferior and (5) any extenuating circumstances that might require the actor to proceed in haste, without proper thought. Considering the nature of each party's wrongful conduct and the extent of the causal relationship between that conduct and the damages claimed, we utilize the Watson factors to guide our determination as to the highest or lowest percentage of fault that could reasonably be assessed to each party. After reviewing the entire record, we find that the city court did not err in its allocation of 100% fault to Exxon. Because the city court found that Foster Wheeler was not negligent, the city court did not consider Foster Wheeler in its allocation of fault. As to the fault allocated to Exxon, the city court considered the Watson factors and found that Exxon's conduct involved an awareness of the danger and how great a risk was created by the installation of a piping elbow in the East Coker Unit made of the wrong material. As owner of the East Coker Unit for more than thirty years, Exxon retained ultimate responsibility for maintaining the East Coker Unit in a reasonably safe condition. Despite this, Exxon failed to make inspections, repairs, or replacements in a reasonably prudent manner. For example, the record reveals that later-constructed portions of the East Coker Unit contained parts made of carbon steel, as opposed to chrome-moly. For example, an April 25, 1988 Near Miss Report details a replacement spool pipe installed in 1978 that was made of carbon steel. Similarly, an Inspection History Report, dated December 9, 1993, memorializing an inspection conducted on September 7, 1982 details a small bore instrument piping made of carbon steel that was threaded and screwed onto existing piping. Exxon's failure to inspect the work done constructing, repairing, and replacing parts of the East Coker Unit, which contributed to weaknesses in the unit, had a direct causative impact on the accident that occurred. Therefore, the Court find that there is a reasonable factual basis for the city court's finding that Exxon was 100% at fault for the plaintiffs' injuries. Accordingly, the Court affirms the city court's allocation of 100% fault to Exxon. Assignment of Error No. 2: Damages In its second assignment of error, Exxon argues that the city court's damage awards are excessive and violate the supreme court's order to reconsider the awarded damages in light of Howard, 50 So.3d 1251. See Aaron, 201 So.3d 241. The role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier-of-fact. The initial inquiry is whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the much discretion of the trier-of-fact. In Howard, a chemical leak that occurred at a plant in Taft, Louisiana, owned by the defendant, Union Carbide, from ten o'clock one night until three o'clock the following afternoon, vaporized 4.6 million pounds of naphtha and dispersed the naphtha vapor into the surrounding communities. Affected individuals sustained irritation of the eyes, nose, and throat, as well as headaches, nausea, dizziness, stinging and tearful eyes, stinging nasal membranes, sore throat, coughing, and a sensation of almost feeling drunk. None of the affected individuals sought or required medical attention, had to evacuate the area, or missed any work or school. The symptoms resolved in a day and could be treated with over-the-counter medication such as Visine. The plaintiffs instituted a class action, and a trial of certain randomly-selected claimants was held to determine whether the claimants were exposed to the naphtha fumes; whether they suffered compensable damages; and the amount of their damages.The supreme court granted certiorari to review the quantum of general damages awarded by the district court in Howard. The Court have carefully examined the arguments of Exxon regarding the alleged errors in the damage awards made by the city court. The Court have individually considered the claims of the trial plaintiffs, giving particular attention to each plaintiffs proximity to the release site; the evidence of her symptoms; the nature and duration of the symptoms; whether medical treatment was sought, and if so, the diagnosis received; whether each plaintiff was required to shelter-in-place or evacuate from her home; and whether each plaintiff experienced fear and fright. The city court found that the trial plaintiffs experienced physical symptoms such as burning, irritated, and red eyes, sore throat, nausea, vomiting, and trouble breathing. These physical symptoms lasted for a few days to several weeks. The city court concluded that the trial plaintiffs also experienced fear and fright based on the ensuing emergency and environmental response at the plant and in their community following the explosion and fire. Responders clad in white space type protective jumpsuits came into their communities to conduct testing and retrieve debris. The trial plaintiffs testified that they were not told whether the debris and ash blanketing their properties and belongings was harmful, nor whether there was anything harmful in the smoke they breathed. The trial plaintiffs were not provided with information or protective clothing, but were merely instructed not to touch anything. The trial plaintiffs experienced fear and fright regarding any adverse health effects that may arise as a result of the accident. In some instances, this fear lasted for months. Based on the Court's review of the entire record, as well as the city court's detailed reasons for judgment after remand, the Court finds no manifest error in the factual findings made by the city court relative to its quantum determinations. Further, the finds no abuse of the city court's broad discretion in the general damage awards made. In reaching this conclusion, the Court is extremely mindful of the holding of the supreme court in Howard, which does not, however, establish a bright line rule for evaluating this type of chemical exposure case. A full-text copy of the Court's December 27, 2018 Opinion is available at https://tinyurl.com/yb32vmee from Leagle.com. Martin A. Stern, Raymond P. Ward, New Orleans, Louisiana, Kellen J. Mathews, Baton Rouge, Louisiana. Michael P. Cash -- mcash@liskow.com -- Wade T. Howard -- wthoward@liskow.com -- Houston, Texas, ATTORNEYS FOR RELATOR, DEFENDANT -- ExxonMobil, Corporation f/k/a Exxon Company, U.S.A., Exxon Corporation. Calvin C. Fayard, Jr., Lewis O. Unglesby, Rebecca Cunard, Roy F. Amedee, Jr., David S. Scalia, ATTORNEYS FOR RESPONDENTS, PLAINTIFFS -- Andre Aaron, et al., Ayanna Abadie, et al., Adelean, McAlope, et al., and Gloria H., Poole, et al. F.H. CANN: Third Circuit Appeal Filed in Scanno Consumer Suit ------------------------------------------------------------- Plaintiff Joanne Scanno filed an appeal from a court ruling in the lawsuit styled Joanne Scanno v. F.H. Cann & Associates Inc., Case No. 2-16-cv-05943, in the U.S. District Court for the District of New Jersey. The nature of suit is stated as consumer credit. As previously reported in the Class Action Reporter, the lawsuit was filed on September 26, 2016, and assigned to Judge Madeline C. Arleo. F.H. Cann provides default prevention, debt collection and account resolution solution for a wide range of industries. The appellate case is captioned as Joanne Scanno v. F.H. Cann & Associates Inc., Case No. 19-1055, in the United States Court of Appeals for the Third Circuit.[BN] Plaintiff-Appellant JOANNE SCANNO, on behalf of herself and all other similarly situated, is represented by: Lawrence C. Hersh, Esq. LAW OFFICES OF LAWRENCE HERSH 17 Sylvan Street Rutherford, NJ 07070 Telephone: (201) 507-6300 E-mail: lh@hershlegal.com Defendant-Appellee F.H. CANN & ASSOCIATES INC. is represented by: Graeme E. Hogan, Esq. Monica M. Littman, Esq. Richard J. Perr, Esq. FINEMAN KREKSTEIN & HARRIS P.C. Ten Penn Center 1801 Market Street, Suite 1100 Philadelphia, PA 19103 Telephone: (215) 644-6590 E-mail: ghogan@finemanlawfirm.com mlittman@finemanlawfirm.com rperr@finemanlawfirm.com FANATICS RETAIL: Faces Garey Class Action Asserting ADA Violation ----------------------------------------------------------------- Fanatics Retail Group North, LLC is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Kevin Garey, on behalf of himself and all others similarly situated, Plaintiff v. Fanatics Retail Group North, LLC, Defendant, Case No. 1:19-cv-00380 (S.D. N.Y., January 14, 2019). Fanatics Retail Group North, LLC operates retails licensed sports merchandise in the United States.[BN] The Plaintiff is represented by: Jonathan Shalom, Esq. Shalom Law, PLLC 124-04 Metropolitan Avenue Kew Gardens, NY 11374 Tel: (516) 807-1748 Email: jshalom@jonathanshalomlaw.com FCA US: All Discovery in Alger Suit to be Completed by March 18 --------------------------------------------------------------- In the case, SHAWN ALGER as an individual and on behalf of all others similarly situated, Plaintiff, v. FCA US LLC f/k/a CHRYSLER GROUP LLC, a Delaware Corporation, and DOES 1 through 100, inclusive, Defendants, Case No. 2:18-cv-00360-MCE-EFB (E.D. Cal.), Judge Morrison C. England, Jr. of the U.S. District Court for the Eastern District of California ordered that all discovery, with the exception of expert discovery, will be completed no later than March 18, 2019. The Plaintiff filed his initial complaint on Feb. 15, 2018, and his class action complaint on Feb. 16, 2018. On April 9, 2018, the Parties stipulated to the filing of the Plaintiff's Second Amended Complaint ("SAC") and a briefing schedule on the Defendant's potential motion to dismiss. On April 10, 2018, the Court entered an Order allowing the Plaintiff to file his SAC by April 23, 2018 and granting the Parties' proposed briefing schedule. The Plaintiff filed his SAC on April 23, 2018, and the Defendant filed its Answer to the SAC on May 14, 2018. During the next month, the Plaintiff served his first set of requests for production of documents ("RFPs") and interrogatories ("ROGs") and noticed a Rule 30(b)(6) deposition that included 23 topics and 14 categories of document production. In June and July 2018, the Parties extensively met and conferred on discovery disputes, including on the noticed Rule 30(b)(6) deposition and competing provisions in their Joint Rule 26(f) Report, which was filed on Aug. 1, 2018. The Parties' meet and confer efforts on the Rule 30(b)(6) deposition reached an impasse, culminating in the Defendant's motion for protective order and Joint Statement Re Discovery Disagreement. The Defendant's motion was heard on Aug. 8, 2018; On Aug. 8, 2018, the Defendant served a first set of RFPs and ROGs on the Plaintiff. Magistrate Judge Brennan entered a Minute Order on Aug. 8, 2018 denying the Defendant's motion and directing the Parties to submit a Stipulation and Proposed Order designating the number of proposed witnesses and estimated time required for the deposition, as discussed at the hearing. Pursuant to Judge Brennan's Minute Order, the Parties submitted their Stipulation on Aug. 17, 2018, and Judge Brennan entered an Order on the Parties' stipulated discovery topics, proposed witnesses, and estimated time periods on Aug. 22, 2018. Less than a week later, the Plaintiff served document subpoenas on Grammer Industries, Inc. and Grammer, Inc., a supplier of Active Headrest Restraint ("AHR") Systems at issue in the litigation. In September 2018, the Parties met and conferred on dates for the Rule 30(b)(6) deposition, the Parties' respective responses to pending discovery requests, and initial disclosures. The Plaintiff filed a motion to compel on Sept. 14, 2018 and the Defendant filed a motion to compel on Sept. 19, 2018. The Parties continued to meet and confer on their outstanding discovery disputes and their respective motions were vacated. The Plaintiff served his initial disclosures on Sept. 19, 2018 and the Defendant served its initial disclosures and supplemental initial disclosures on Sept. 28, 2018. The Defendant's Rule 30(b)(6) designees were deposed in Michigan on Sept. 24, 2018 and Oct. 1, 2018. The Plaintiff served four deposition notices on the Defendant employees on Nov. 6, 20181 and served a deposition subpoena on Grammer on Nov. 7, 2018, pursuant to Rules 30(b)(6) and 45. The Defendant served a second set of RFPs and ROGs on the Plaintiff on Nov. 26, 2018 and the Plaintiff served a second set of RFPs and ROGs on the Defendant on Dec. 7, 2018. The Plaintiff deposed two of the Defendant's employees in Michigan on Dec. 10 and 11, 2018. On Dec. 13, 2018, the Plaintiff noticed the deposition of two additional Defendant employees and served a third set of ROGs on Dec. 17, 2018. The Defendant has noticed the Plaintiff's Vehicle Inspection for Jan. 17, 2019 and the depositions of the Plaintiff and his girlfriend, Alyssa Pfanner, for Jan. 18, 2019; Grammer's Rule 30(b)(6) designee is not available for deposition until Feb. 6, 2018 in Michigan. The Parties are meeting and conferring to coordinate deposition dates and times for three of the Defendant's employees so that they occur during the same week as the Grammer Rule 30(b)(6) deposition in Michigan. The Parties are currently meeting and conferring on a protocol for the Plaintiff's Vehicle Inspection, the Defendant's document production and supplemental ROG responses, and potential search terms for the Plaintiff's recent RFPs. The Plaintiff is preparing responses to the Defendant's second set of RFPs and ROGs and continuing to review documents produced by both the Defendant and Grammer. Discovery requests are still pending for both Parties. The Parties are engaged in multi-state discovery efforts, including third-party discovery, that involves a significant number of witnesses, anticipated experts, and implicates a significant number of vehicles. Further discovery will be limited over the upcoming weeks due to the intervening holidays and the Defendant's offices are closed over the next two weeks. The current deadline to complete all discovery with the exception of expert discovery is Feb. 15, 2019. It has become apparent that it will not be possible for the Parties to complete all fact discovery prior to the current Feb. 15, 2019 deadline. The Parties have actively participated in discovery of the case. They have met and conferred on extending the existing discovery period and have not previously sought to extend the current discovery deadline. Good cause exists to extend the discovery cut off by 30 days for the reasons described. Therefore, the Parties stipulated, and Judge England granted, that all discovery, with the exception of expert discovery, will be completed no later than March 18, 2019. A full-text copy of the Court's Jan 4, 2019 Order is available at https://is.gd/C4PfCR from Leagle.com. Shawn Alger, Plaintiff, represented by Stuart C. Talley, Kershaw, Cook & Talley PC & William A. Kershaw, Kershaw, Cook & Talley PC. FCA US LLC, a Delaware Corporation, Defendant, represented by Abirami Gnanadesigan -- agnanadesigan@dykema.com -- Dykema Gossett LLP, Dommond E. Lonnie -- dlonnie@dykema.com -- Dykema Gossett, LLP, Fred J. Fresard -- ffresard@dykema.com -- Dykema Gossett PLLC, pro hac vice, James P. Feeney -- jfeeney@dykema.com -- Dykema Gossett PLLC & Brittany J. Mouzourakis -- BMouzourakis@dykema.com -- Dykema Gossett, PLLC, pro hac vice. FEIT INDUSTRIES: Footwear Firm Faces Class Action under ADA ------------------------------------------------------------ Feit Industries, LLC is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Kevin Garey, on behalf of himself and all others similarly situated, Plaintiff v. Feit Industries, LLC, Defendant, Case No. 1:19-cv-00382 (S.D. N.Y., January 14, 2019). Feit Industries, LLC is engaged in a footwear industry.[BN] The Plaintiff is represented by: Jonathan Shalom, Esq. Shalom Law, PLLC 124-04 Metropolitan Avenue Kew Gardens, NY 11374 Tel: (516) 807-1748 Email: jshalom@jonathanshalomlaw.com FIDELITY BANK: McAlister Asks to Certify Class of MLOs Under FLSA ----------------------------------------------------------------- The Plaintiff in the lawsuit titled DUSTIN MCALISTER, on behalf of himself and others similarly situated v. FIDELITY BANK, Case No. 2:18-cv-02274-JWL-TJJ (D. Kan.), moves the Court to grant conditional class certification on behalf of mortgage loan originators under Section 216(b) of the Fair Labor Standards Act. Specifically, Mr. McAlister seeks an order: a. granting conditional class certification regarding the Plaintiff's claims under Section 216(b) of the FLSA regarding all employees who performed as MLOs (or other similarly situated job positions) for Fidelity from three years from the date the Complaint was filed in federal court; b. directing Defendant Fidelity to provide a list of names of these persons within fourteen (14) days of the Court's order for these persons along with their last known home addresses, phone numbers, and email addresses, all in a workable electronic format (e.g., Excel) for mailing purposes; c. providing the social security numbers for all class members whose mailed notices are returned so the Plaintiff can locate a viable mailing address; and d. approving and authorizing the Plaintiff to send the notice of claims and right to opt-in forms.[CC] The Plaintiff is represented by: Brendan J. Donelon, Esq. DONELON, P.C. 4600 Madison, Suite 810 Kansas City, MO 64112 Telephone: (816) 221-7100 Facsimile: (816) 709-1044 E-mail: brendan@donelonpc.com The Defendant is represented by: Brian N. Woolley, Esq. LATHROP GAGE LLP 2345 Grand Blvd., Suite 2200 Kansas City, MO 64108 Telephone: (816) 292-2000 Facsimile: (816) 292-2001 E-mail: bwoolley@lathropgage.com - and - Tammy M. Somogye, Esq. LATHROP GAGE LLP 10851 Mastin Boulevard, Suite 1000 Overland Park, KS 66210 Telephone: (913) 451-5100 Facsimile: (913) 451-0875 E-mail: tsomogye@lathropgage.com - and - Frank B. Harty, Esq. NYEMASTER GOODE PC 700 Walnut St., Suite 1600 Des Moines, IA 50309 Telephone: (515) 283-3170 E-mail: fharty@nyemaster.com FINANCIAL CORP: Court Okays Class Notice in Encarnacion FDCA Suit ----------------------------------------------------------------- In the case, OMAR ENCARNACION, individually and on behalf of all others similarly situated, Plaintiff, v. FINANCIAL CORPORATION OF AMERICA, Defendant, Case No. 2:17-cv-566-FtM-38CM (M.D. Fla.), Magistrate Judge Carol Mirando of the U.S. District Court for the Middle District of Florida, Fort Myers Division, granted in part and denied in part the Plaintiff's Motion for Approval of the Parties' Class Notice and Plan for Dissemination of the Class Notice filed on Dec. 21, 2018. The Plaintiff seeks an order approving the proposed class notice to be disseminated to the class members. The parties agree on the form and substance of all but one sentence in the proposed class notice. The parties dispute whether the following sentence should be included: "Plaintiff is seeking a Class Recovery of up to $48,264, which would entitle each Class Member to approximately $13.96." Magistrate Judge Mirando finds that none of the cases cited by the Plaintiff demonstrate an approximation of potential recovery is necessary or appropriate for the class members to make an intelligent decision about whether to remain in a class action. She finds all the other information in the notice -- without the approximation of potential recovery -- provides sufficient information for class members to make an intelligent decision about whether to stay in the class. Additionally, she has adjusted the proposed deadlines to ensure prompt notice in light of the upcoming deadlines in the Case Management and Scheduling Order. Accordingly, the Magistrate granted in part and denied in part the Motion for Approval of the Parties' Class Notice and Plan for Dissemination of the Class Notice. She approved the form and substance of the class notice attached as Exhibit B to the Motion and the approved class notice attached to the Order. The class administrator will mail the notice to the class members by First Class mail on or before Feb. 8, 2019. Any Class Member who wishes to be excluded from the class must send a written request for exclusion to the Class Administrator with a postmark date by March 15, 2019. Any Class Member who wishes to be represented by his or her own attorney must have an attorney file a notice of appearance by March 15, 2019. A full-text copy of the Court's Jan 4, 2019 Order is available at https://is.gd/B8qavr from Leagle.com. Omar Encarnacion, individually and on behalf of all others similarly situated, Plaintiff, represented by Katie Marguerite Miller, The Law Offices of Katie M. Miller, PA & Yitzchak Zelman -- Yzelman@MarcusZelman.com -- Marcus & Zelman, pro hac vice. Financial Corporation of America, Defendant, represented by Charles James McHale, Jr. -- cmchale@gsgfirm.com. -- Golden Scaz Gagain, PLLC & Dale Thomas Golden -- dgolden@gsgfirm.com -- Golden Scaz Gagain, PLLC. FINANCIAL MEDIA: Violates TCPA and Invades Privacy, Hanks Claims ---------------------------------------------------------------- KIM HANKS, individually and on behalf of all others similarly situated v. FINANCIAL MEDIA GROUP, LLC and DOES 1 through 10, inclusive, and each of them, Case No. 2:19-at-00017 (C.D. Cal., January 4, 2018), alleges violations of the Telephone Consumer Protection Act. Mr. Hanks alleges that the Defendants negligently contacted him on his cellular telephone in violation of the TCPA, specifically the National Do-Not-Call provisions, thereby, invading his privacy. Financial Media Group, LLC, is a financial data company. The true names and capacities of the Doe Defendants are currently unknown to the Plaintiff.[BN] The Plaintiff is represented by: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St., Suite 780 Woodland Hills, CA 91367 Telephone: (877) 206-4741 Facsimile: (866)633-0228 E-mail: tfriedman@toddflaw.com abacon@toddflaw.com GALIANO ENTERPRISES: Ramirez Brito Suit Moved to S.D. Florida ------------------------------------------------------------- A case, Cecilia Ramirez Brito and other similarly situated individuals, the Plaintiff, vs. Galiano Enterprises of Miami, Corp., a Florida Profit Corporation, and Sultan Mamun, the Defendants, Case No. 18-39848CA00, was removed from the 11th Judicial Circuit, Miami-Dade, Florida, to the U.S. District Court for the Southern District of Florida (Miami) on Jan 7, 2019. The Southern District of Florida assigned Case No. 1:19-cv-20074-JEM to the proceeding. The suit alleges Fair Labor Standards Act violation. The case is assigned to the Hon. Judge Jose E. Martinez.[BN] Attorneys for Plaintiff: Anthony Maximillien Georges-Pierre, Esq. Max Lloyd Horowitz, Esq. REMER & GEORGES-PIERRE, PLLC Court House Tower 44 West Flagler Street, Suite 2200 Miami, FL 33130 Telephone: (305) 416-5000 Facsimile: (305) 416-5005 E-mail: agp@rgpattorneys.com mhorowitz@rgpattorneys.com Attorneys for Defendants: Adi Amit, Esq. ADI AMIT, P.A. 101 NE 3rd Ave., Suite 300 Fort Lauderdale, FL 33301 Telephone: (954) 533-5922 E-mail: adi@defenderofbusiness.com GLORIA JEWEL: Violates Disabilities Act, Says Garey Suit -------------------------------------------------------- Gloria Jewel, Inc. is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Kevin Garey, on behalf of himself and all others similarly situated, Plaintiff v. Gloria Jewel, Inc., Defendant, Case No. 1:19-cv-00383 (S.D. N.Y., January 14, 2019). Gloria Jewel is a Hamptons fashion boutique with locations in Westhampton Beach, Amagansett, East Hampton, Bridgehampton and Tribeca.[BN] The Plaintiff is represented by: Jonathan Shalom, Esq. Shalom Law, PLLC 124-04 Metropolitan Avenue Kew Gardens, NY 11374 Tel: (516) 807-1748 Email: jshalom@jonathanshalomlaw.com GOLDMAN SACHS: Pomerantz Law Files Class Action ----------------------------------------------- Pomerantz LLP disclosed that a class action lawsuit has been filed against, The Goldman Sachs Group, Inc. ("Goldman Sachs" or the "Company") (NYSE: GS) and certain of its officers. The class action, filed in United States District Court, Southern District of New York, and indexed under 18-cv-12084, is on behalf of a class consisting of all persons and entities, other than Defendants and their affiliates, who purchased or otherwise, acquired Goldman Sachs securities between February 28, 2014, and December 17, 2018, both dates inclusive (the "Class Period"), seeking to recover damages caused by Defendants' violations of the federal securities laws and to pursue remedies under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act") and Rule 10b-5 promulgated thereunder, against the Company and certain of its top officials. If you are a shareholder who purchased Goldman Sachs securities between February 28, 2014, and December 17, 2018, both dates inclusive, you have until February 19, 2019, to ask the Court to appoint you as Lead Plaintiff for the class. A copy of the Complaint can be obtained at www.pomerantzlaw.com. To discuss this action, contact Robert S. Willoughby at rswilloughby@pomlaw.com or 888.476.6529 (or 888.4-POMLAW), toll-free, Ext. 9980. Those who inquire by e-mail are encouraged to include their mailing address, telephone number, and the number of shares purchased. Goldman Sachs was founded in 1869 and is headquartered in New York, New York. The Company operates as an investment banking, securities, and investment management company worldwide, serving corporations, financial institutions, governments, and high-net-worth individuals. According to 2016 data compiled by Bloomberg, Goldman Sachs has "worked on $18.8 billion of Malaysian mergers and acquisitions over the past five years, making it the top foreign adviser with a 20.5[%] market share." Goldman Sachs's business in Malaysia included, inter alia, raising funds for 1Malaysia Development Bhd. ("1MDB"), a Malaysian state-owned investment fund set up in 2009, four months after Najib Razak ("Razak") became Prime Minister of Malaysia. 1MDB was initially established to finance infrastructure and economic deals in Malaysia. In 2012, officials from 1MDB met with Goldman Sachs in Hong Kong to discuss a bond deal. Goldman Sachs subsequently raised $6.5 billion for 1MDB, earning approximately $600 million in fees. Since early 2015, 1MDB has been the subject of international criminal and regulatory investigations for suspected fraud and money laundering after missing $11 billion in payments owed to banks and bondholders. On June 18, 2015, The Wall Street Journal published an article entitled "Fund Controversy Threatens Malaysia's Leader," detailing how 1MDB indirectly funded Razak's 2013 election campaign. A probe into 1MDB subsequently followed. On July 2, 2015, The Wall Street Journal published another article, entitled "Investigators Believe Money Flowed to Malaysian Leader Najib's Accounts Amid 1MDB Probe," reporting how Malaysian investigators traced nearly $700 million in deposits to what they believed to be Razak's personal bank accounts. According to the U.S. Department of Justice, high-level 1MDB officials and their associates misappropriated an estimated $4.5 billion from 1MDB between 2009 and 2014. Implicated in the 1MDB scandal were two former Goldman Sachs managing directors— Tim Leissner ("Leissner") and Ng Chong Hwa, also known as Roger Ng ("Ng"). Leissner was Chairman of South East Asia and Vice Chairman of the Investment Banking Division in Asia Ex-Japan (i.e., Asia, excluding Japan) for Goldman Sachs. Ng was a former Goldman Sachs banker, managing director, and deputy to Leissner. Ng most recently was the head of South-East Asian sales in Goldman Sachs's fixed-income, currencies, and commodities unit. The complaint alleges that throughout the Class Period, Defendants made materially false and misleading statements regarding the Company's business, operational and compliance policies. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: (i) Goldman Sachs participated in a fraud and money-laundering scheme in collusion with 1MDB; (ii) the foregoing conduct, when revealed, would foreseeably subject Goldman Sachs to heightened regulatory investigation and enforcement; and (iii) as a result, Goldman Sachs's public statements were materially false and misleading at all relevant times. On March 7, 2016, Bloomberg News published an article entitled "Ex-Goldman Banker to Malaysia Fund Said Subpoenaed in U.S. Probe," reporting that the U.S. Justice Department had subpoenaed Leissner in late February in connection with a probe linked to 1MDB. Goldman Sachs has since been the subject of investigations by the U.S. Justice Department regarding the multibillion-dollar fraud and money-laundering scheme involving 1MDB, for which Goldman Sachs was the primary bond underwriter. Following this news, Goldman Sachs's stock price fell $3.75 per share, or 2.41%, to close at $151.60 on March 8, 2016. On November 1, 2018, U.S. federal prosecutors in the Eastern District of New York ("E.D.N.Y.") unsealed indictments against Leissner and Ng related to the 1MDB probe, explicitly describing them as "agents acting within the scope of their employment on behalf of" the Company "with the intent, at least in part, to benefit" Goldman Sachs. That same day, the United States Attorney's Office for the E.D.N.Y. announced that Leissner's guilty plea was unsealed for "a two-count criminal information charging Leissner with conspiring to launder money and conspiring to violate the FCPA [Foreign Corrupt Practices Act] by both paying bribes to various Malaysian and Abu Dhabi officials and circumventing the internal accounting controls of the Financial Institution while he was employed by it." The U.S. Attorney's Office also stated that, "[a]ccording to court filings, Leissner has been ordered to forfeit $43,700,000 as a result of his crimes." On November 8, 2018, a report by Bloomberg News detailed the personal involvement of Goldman Sachs's then-Chief Executive Officer ("CEO"), Lloyd Blankfein, in a meeting to establish ties with Malaysia and its new sovereign wealth fund that was referenced in the court documents unsealed the prior week. In a November 8, 2018 article entitled "Goldman's Blankfein Said to Have Attended 2009 1MDB Meeting," Bloomberg News noted that "Blankfein was the unidentified high-ranking Goldman Sachs executive referenced in U.S. court documents who attended a 2009 meeting with the former Malaysian prime minister," and that "[t]he meeting was arranged with the help of men who are now tied to the subsequent plundering of the 1MDB fund[.]" On this news, Goldman Sachs's stock price fell by $9.00, or nearly 4%, closing at $222.65 on November 9, 2018. On November 12, 2018, Malaysian government officials denounced Goldman Sachs's role in the 1MDB scandal. Malaysian Prime Minister Mahathir Mohamad stated that "[t]here is evidence that Goldman Sachs has done things that are wrong" and "[o]bviously we have been cheated through the compliance by Goldman Sachs people." Meanwhile, the country's Finance Minister Lim Guan Eng said that Malaysia would seek a "full refund" of the approximately $600 million in fees that the Company earned in connection with 1MDB's $6.5 billion bond deal. Following this news, Goldman Sachs's stock price fell $16.60 per share, or nearly 7.5%, to close at $206.05 on November 12, 2018. Robert S. Willoughby, Esq. Pomerantz LLP Telephone: 888-476-6529 ext. 9980 Email: rswilloughby@pomlaw.com [GN] GOVERNMENT EMPLOYEES: Banaga Files Class Action Over Discrimination ------------------------------------------------------------------- Jesse Banaga, individually and on behalf of all others similarly situated v. Government Employees Insurance Company, Case No. 3:18-cv-02756 (S.D. Calif., December 7, 2018), seeks damages, injunctive relief, and any other available legal or equitable remedies, resulting from the illegal actions of the Defendant in intentionally and willfully interfering, discriminating, and retaliating against Plaintiff in violation of the Family and Medical Leave Act. The Plaintiff also brings this class action complaint for the Defendant's discriminating against the Plaintiff on account of his disability in violation of the Americans with Disability Act. The Plaintiff began his employment with the Defendant on or about April 30, 2001 as a Customer Service Representative. The Plaintiff is a resident of the County of San Diego, in the State of California. The Defendant Government Employees Insurance Company provides private passenger automobile insurance in the United States. The Defendant is a Maryland corporation doing business in the State of California, County of San Diego. [BN] The Plaintiff is represented by: Abbas Kazerounian, Esq. Veronica Cruz, Esq. KAZEROUNI LAW GROUP, APC 245 Fisher Avenue, Unit D1 Costa Mesa, CA 92626 Tel: (800) 400-6808 Fax: (800) 520-5523 E-mail: ak@kazlg.com veronica@kazlg.com - and - Corey P. Hanrahan, Esq. THE HANRAHAN FIRM 402 West Broadway, Suite 1760 San Diego, CA 92101 Tel: (619) 377-6522 Fax: (619) 377-6662 E-mail: corey@hanrahanfirm.com H&R BLOCK: Deborah Robinson Sues over No Poach Policy ------------------------------------------------------ DEBORAH ROBINSON, individually and on behalf of all others similarly situated, the Plaintiff, vs. H&R BLOCK, INC., and H&R BLOCK TAX SERVICES L.L.C., the Defendants, Case No. 1:19-cv-00134 (N.D. Ill., Jan. 7, 2019), challenges Defendants' anticompetitive "No-Poach" agreements for corporate and franchise employees in violation of Sections 1 and 3 of the Sherman Act, and seeks to recover treble damages and other appropriate relief based on Defendants' violations of the antitrust laws of the United States. According to the complaint, H&R Block, Inc. is an American tax preparation company. Among other tax preparation services, H&R Block, Inc. provides in-person tax preparation assistance and services at approximately 10,000 offices across the United States as well as outside the United States. H&R Block also has over 3,300 franchised units in the United States and has both corporate-owned offices and franchise-owned offices. Beginning at least by January 2009, and continuing until at least May 2018, Defendants and their currently unidentified co-conspirators engaged in a conspiracy with respect to the recruitment of employees and potential employees, including but not limited to, agreements not to solicit or recruit each other’s employees without prior approval. The Defendants formed, entered into, carried out, and enforced the anticompetitive agreement, combination, or conspiracy. The Defendants orchestrated, dispersed, and enforced the agreement among themselves and all franchisees, including at least in part through an explicit contractual prohibition ("No Poach clause" or "No Poach agreement") contained in the standard H&R Block franchise agreement. The conspiracy, which is a per se violation of Sections 1 and 3 of the Sherman Act, 15 U.S.C. sections 1, 3, limited Plaintiff and Class members’ job mobility and suppressed their wages, compensation, and other employee benefits below the levels that would have been available to them in a competitive market, absent the conspiracy. The purpose and effect of the conspiracy was to limit employees’ job mobility and to suppress their wages, compensation, and other employee benefits. As a result, H&R Block employees, including Plaintiff and Class members, were unable to seek employment with any other H&R Block locations, and as a direct result, the No Poach agreements severely decreased employment options available to H&R Block employees. The Defendants' anticompetitive practices have harmed Plaintiff and Class members, the lawsuit says. H&R Block, Inc., or H&R Block, is an American tax preparation company operating in North America, Australia, and India. The company was founded in 1955 by brothers Henry W. Bloch and Richard Bloch.[BN] Attorneys for the Plaintiff and the Proposed Class: Brian Murray, Esq. Lee Albert, Esq. GLANCY PRONGAY & MURRAY 230 Park Avenue, Suite 530 New York, NY 10169 Telephone: (212) 682-5340 Facsimile: (212) 884-0988 E-mail: bmurray@glancylaw.com lalbert@glancylaw.com - and - Kasif Khowaja, Esq. Frank Castiglione, Esq. THE KHOWAJA LAW FIRM, LLC 8 South Michigan Ave. Suite 2600 Chicago, IL 60603 Telephone: (312) 356- 3200 E-mail: kasif@khowajalaw.com fcastiglione@khowajalaw.com HANBAT RESTAURANT: Does not Properly Pay Workers, Armando Suit Says ------------------------------------------------------------------- Carlos Armando Sapon Sapon and Fredy Tomas Baquiax Ajche, individually and on behalf of others similarly situated v. Hanbat Restaurant, Inc. dba Han Bat and Nack Gyeun Mun, Case No. 1:18-cv-11457 (S.D. N.Y., December 7, 2018), is brought against the Defendants for violations of the Fair Labor Standards Act and the New York Labor Law. At all times relevant to this Complaint, the Plaintiffs worked for the Defendants in excess of 40 hours per week, without appropriate minimum wage, overtime, and spread of hours compensation for the hours that they worked, asserts the complaint. The Plaintiffs were employed as delivery workers and a cook at the restaurant located at 53 W 35th St, New York, NY 10001. The Defendants own, operate, or control a Korean restaurant, located at 53 W 35th St,New York, NY 10001 under the name "Han Bat". [BN] The Plaintiffs are represented by: Michael Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 4510 New York, NY 10165 Tel: (212) 317-1200 Fax: (212) 317-1620 HERTZ CORPORATION: Denicolo Files FDCPA Suit in N.D. California --------------------------------------------------------------- A class action lawsuit has been filed against The Hertz Corporation. The case is styled as Ronald G Denicolo, Jr., on behalf of himself and all others similarly situated, Plaintiff v. The Hertz Corporation and Viking Client Services, Inc., Defendants, Case No. 3:19-cv-00210 (N.D. Cal., January 11, 2019). The docket of the case states the nature of suit as Consumer Credit filed pursuant to the Fair Debt Collection Practices Act. The Hertz Corporation, a subsidiary of Hertz Global Holdings Inc., is an American car rental company based in Estero, Florida that operates 9,700 international corporate and franchisee locations.[BN] The Plaintiff is represented by: Lori Erin Andrus, Esq. Andrus Anderson LLP 155 Montgomery Street, Suite 900 San Francisco, CA 94104 Tel: (415) 986-1400 Fax: (415) 986-1474 Email: lori@andrusanderson.com HOLLAR INC: Garey Targets Online Gift Shop in ADA Suit ------------------------------------------------------ Hollar Inc. is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Kevin Garey, on behalf of himself and all others similarly situated, Plaintiff v. Hollar Inc., Defendant, Case No. 1:19-cv-00384 (S.D. N.Y., January 14, 2019). Hollar, Inc. is a discount online store for gifts and other goods. The Company offers toys, beauty, electronics, apparel, and accessories. Hollar serves customers the State of California.[BN] The Plaintiff is represented by: Jonathan Shalom, Esq. Shalom Law, PLLC 124-04 Metropolitan Avenue Kew Gardens, NY 11374 Tel: (516) 807-1748 Email: jshalom@jonathanshalomlaw.com HOLTGER BROS: Field Workers Class Certified in McChesney Suit ------------------------------------------------------------- The Hon. Kristine G. Baker grants, in part, and denies, in part, the Plaintiff's motion for conditional certification of collective action, for disclosure of potential opt-in plaintiffs' contact information, and to send court-approved notice in the lawsuit titled JACOB MCCHESNEY v. HOLTGER BROS., INC., Case No. 4:17-cv-00824-KGB (E.D. Ark.). Mr. McChesney brings claims against the Defendant pursuant to the Fair Labor Standards Act and the Arkansas Minimum Wage Act. The Court conditionally certifies this case as a collective action and proposes the following language as the class of individuals to receive notice: All current and former hourly-paid field workers employed by Defendant Holtger Bros., Inc. at any time since December 13, 2014, and who performed work for Defendant Holtger Bros., Inc. within Arkansas. The parties have 10 days from the entry of this Order to inform the Court in writing whether this proposed language is acceptable, in the light of the Court's other rulings in this matter, or to propose alternate language for consideration that accounts for the Court's rulings, Judge Baker states. Judge Baker also grants Mr. McChesney's motion for equitable tolling. To facilitate notice, Holtger is ordered to provide to Mr. McChesney's counsel the names, last known home and work addresses, and all known e-mail addresses for the potential opt-in plaintiffs within 21 days of the date of this Order. Mr. McChesney shall have 90 days from the date Holtger provides this information to distribute notice to the potential opt-in plaintiffs and file copies of the consent forms with the Court. He may provide notice to the class of individuals consistent with the terms of this Order.[CC] ILLUMINA INC: Filing of 2nd Amended Securities Suit Denied ---------------------------------------------------------- In the case, IN RE ILLUMINA, INC. SECURITIES LITIGATION, Case No. 3:16-cv-03044-L-MSB (S.B. Cal.), Judge M. James Lorenz of the U.S. District Court for the Southern District of California denied Plaintiff Natissisa Enterprises Ltd.'s motion to file a second amended complaint. The Court appointed the Plaintiff as the lead Plaintiff in the class action lawsuit on March 30, 2017. On May 30, 2017, the Plaintiff filed the operative complaint. In that complaint, it sought for the Court to certify it as the class representative. The Hon. Karen S. Crawford, U.S. Magistrate Judge, issued a Scheduling Order on May 11, 2018. In that order, the parties' deadline to amend the pleadings, or to file additional pleadings was set for June 11, 2018, and the Plaintiff's deadline to file its motion for class certification was set for Sept. 14, 2018. On May 21, 2018, Judge Crawford vacated the class discovery cut-off deadline originally set for Sept. 4, 2018. In December 2017, the Plaintiff decided to voluntarily unwind. It assigned its interests in the lawsuit to Oleksandr Agoshkow, the Plaintiff's ultimate beneficial owner. In March 2018, Oleksandr Agoshkov assigned his interests in these claims to his son Anton. On Sept. 12, 2018, the Plaintiff filed the instant motion seeking to add Mr. Anton Agoshkov as an additional named Plaintiff in the complaint to avoid interference in the dissolution and provide an additional class representative to the potential class. Defendants Illumina, Francis A. deSouza, and Marc A. Stapley opposed the motion on Oct. 4, 2018. The Plaintiff replied on Oct. 8, 2018. Judge Lorenz finds that the Plaintiff sought to amend the operative complaint three months after the scheduling order deadline expired. As such, good cause must be shown as the Plaintiff concedes. The Plaintiff contends good cause exists to justify amending the complaint for the following reasons: (1) to prevent unnecessary waste of resources; (2) to ensure the existing class members do not lose their rights; (3) to further the interests of justice; and (4) no prejudice would result because the Plaintiff has neither engaged in undue delay nor attempted to add new claims or expand the class. However, the Plaintiff fails to raise any contention regarding their diligence to amend the complaint since March 2018. Illumina points out that the Plaintiff failed to include the assignments when it served its Initial Disclosures on May 4, 2018. Likewise, the Plaintiff failed to inform Illumina and the Court of its need to amend during a telephonic case management conference held on May 11, 2018. The Plaintiff simply does not assert facts showing that it has been diligent in attempting to amend their complaint. Accordingly, the Judge denied the Plaintiff's motion without prejudice to the Plaintiff refiling it with a showing of good cause and diligence. A full-text copy of the Court's Jan 4, 2019 Order is available at https://is.gd/yvAHlM from Leagle.com. Yi Fan Chen & Frontline Global Trading Pte. Ltd., Individually and on Behalf of All Others Similarly Situated, Plaintiffs, represented by Robert Vincent Prongay -- rprongay@glancylaw.com -- Glancy Prongay & Murray LLP. Natissisa Enterprise Ltd., Plaintiff, represented by Adam C. McCall -- amccall@zlk.com -- Levi & Korsinsky, LLP., Nicholas Porritt -- nporritt@zlk.com -- Levi & Korsinsky LLP, pro hac vice & Adam C. McCall, Levi & Korsinsky, LLP. James McLeod, Individually and on Behalf of All Others Similarly Situated, Plaintiff, represented by J. Alexander Hood, II -- ahood@pomlaw.com -- Pomerantz LLP, pro hac vice, Jennifer Pafiti -- jpafiti@pomlaw.com -- Pomerantz LLP & Jeremy A. Lieberman -- jalieberman@pomlaw.com -- Pomerantz LLP, pro hac vice. Illumina, Inc., Defendant, represented by Clarence William Phillips, Covington & Burling LLP, pro hac vice, Jordan Scott Joachim, Covington & Burling LLP, pro hac vice, Mark Chen -- mychen@cov.com -- Covington & Burling LLP & Mark Putnam Gimbel -- mgimbel@cov.com -- Covington and Burling LLP, pro hac vice & Russell Squire, Covington & Burling LLP, pro hac vice. Francis A. Desouza & Marc A. Stapley, Defendants, represented by Mark Chen, Covington & Burling LLP & Mark Putnam Gimbel, Covington and Burling LLP, pro hac vice. Batali and Greenwald, Movant, represented by Laurence M. Rosen -- lrosen@rosenlegal.com -- The Rosen Law Firm, P.A. Anton Agoshkov, Movant, represented by Adam Marc Apton -- aapton@zlk.com -- Levi & Korsinsky, LLP. INDIANA: Inmates Files Civil Rights Class Action ------------------------------------------------ A class action lawsuit has been filed against Robert Carter. The case is styled as Menes Ankh-El and Craig Wilson, all prisoners similarly situated, Plaintiffs v. Robert Carter, Kieth Butts, Ms. French and Mr. Fetz, Defendants in their official and private capacities, Defendants, Case No. 1:19-cv-00115-SEB-DLP (S.D. Ind., January 11, 2019). The docket of the case states the nature of suit as Prisoner Civil Rights Violation. The Defendants are officers of the Indiana Department of Correction.[BN] The Plaintiffs appear PRO SE. INVESTMENT TECHNOLOGY: Scarantino Suit Challenges Sale to Virtu --------------------------------------------------------------- RICHARD SCARANTINO, Individually and On Behalf of All Others Similarly Situated v. INVESTMENT TECHNOLOGY GROUP, INC., MINDER CHENG, BRIAN G. CARTWRIGHT, TIMOTHY L. JONES, R. JARRETT LILIEN, KEVIN J. LYNCH, LEE M. SHAVEL, FRANCIS J. TROISE, and STEVEN S. WOOD, Case No. 1:19-cv-00024-UNA (D. Del., January 4, 2018), stems from a proposed transaction, pursuant to which ITG will be acquired by Virtu Financial, Inc. ("Parent") and Impala Merger Sub, Inc. On November 6, 2018, ITG's Board of Directors caused the Company to enter into an agreement and plan of merger with Virtu. Pursuant to the terms of the Merger Agreement, ITG's stockholders will receive $30.30 in cash for each share of ITG common stock they hold. The Defendants filed the Proxy Statement with the SEC in connection with the Proposed Transaction, which scheduled a stockholder vote on the Proposed Transaction for January 24, 2019. The Plaintiff alleges that the Proxy Statement omits material information regarding the Company's financial projections and the analyses performed by the Company's financial advisor in connection with the Proposed Transaction, J.P. Morgan Securities LLC. With respect to the Company's financial projections, the Proxy Statement fails to disclose the Company's unlevered free cash flows and all underlying line items, the Plaintiff contends. ITG is a Delaware corporation and maintains its principal executive offices in New York City. The Individual Defendants are directors and officers of the Company. ITG is a global financial technology company that helps leading brokers and asset managers improve returns for investors around the world. The Company allows traders to reduce the end-to-end cost of implementing investments through liquidity, execution, analytics, and workflow technology solutions.[BN] The Plaintiff is represented by: Brian D. Long, Esq. Gina M. Serra, Esq. RIGRODSKY & LONG, P.A. 300 Delaware Avenue, Suite 1220 Wilmington, DE 19801 Telephone: (302) 295-5310 Facsimile: (302) 654-7530 E-mail: bdl@rl-legal.com gms@rl-legal.com - and - Richard A. Maniskas, Esq. RM LAW, P.C. 1055 Westlakes Drive, Suite 300 Berwyn, PA 19312 Telephone: (484) 324-6800 Facsimile: (484) 631-1305 E-mail: rm@maniskas.com IRONBOUND EXPRESS: Court Certifies Luxama Drivers Class ------------------------------------------------------- The United States District Court for the District of New Jersey issued an Opinion granting in part and denying in part Plaintiffs' Second Motion for Class Certification in the case captioned VAUDRAL LUXAMA, CHANDLER LUXEUS, JAVIER R. GARCIA, FREDO BONHOMME, SANTOS MALDONADO, CHANEL FONTIN, each individually and as class representatives, Plaintiffs, v. IRONBOUND EXPRESS, INC., Defendant. Civil Action No. 11-2224 (JMV) (JBC). (D.N.J.) The Plaintiffs are owner-operator tractor-trailer drivers who lease their vehicles and driving services to Defendant. This matter began as a wage and hour claim but has since morphed into allegations that the lease agreements violated federal Truth-in-Leasing regulations and for breach of contract. Truth-in-Leasing and Breach of Contract Plaintiffs allege (1) five violations of federal Truth-in-Leasing regulations and (2) breach of contract. The purpose of the Truth-in-Leasing regulations is to protect independent truckers from motor carriers' abusive leasing practices. Thus, the regulations seek to promote truth-in-leasing a full disclosure between the carrier and the owner-operator of the elements, obligations, and benefits of leasing contracts signed by both parties; to eliminate or reduce opportunities for skimming and other illegal or inequitable practices by motor carriers and to promote the stability and economic welfare of the independent trucker segment of the motor carrier industry. The Plaintiffs allege that the Defendant violated this provision because the Lease refers to a Schedule B to govern compensation, but the Defendant does not attach a Schedule B to the Lease meaning compensation is not clearly stated on the face of the Lease or in an attached addendum. Section 376.12(g) requires the authorized carrier to also provide sufficient documentation to support this compensation, stating: "Copies of freight bill or other form of freight documentation. When a lessor's revenue is based on a percentage of the gross revenue for a shipment, the lease must specify that the authorized carrier will give the lessor, before or at the time of settlement, a copy of the rated freight bill, or, in the case of contract carriers, any other form of documentation actually used for a shipment containing the same information that would appear on a rated freight bill. Regardless of the method of compensation, the lease must permit lessor to examine copies of the carrier's tariff or, in the case of contract carriers, other documents from which rates and charges are computed, provided that where rates and charges are computed from a contract of a contract carrier, only those portions of the contract containing the same information that would appear on a rated freight bill need be disclosed. The authorized carrier may delete the names of shippers and consignees shown on the freight bill or other form of documentation." The Plaintiffs seek certification of a class comprised of owners and lessors who at any time since April 20, 2007, executed the Lease, or a lease that contained substantially similar language, and performed transportation services for the Defendant. Rule 23(a) Requirements The Defendant only challenges 23(a) requirements as to commonality and typicality. In reviewing the adequacy element, a court must decide whether the class representative has the ability and the incentive to represent the claims of the class vigorously, that he or she has obtained adequate counsel, and that there is no conflict between the individual's claims and those asserted on behalf of the class. Adequate representation depends on two factors: (a) the plaintiffs attorney must be qualified, experienced, and generally able to conduct the proposed litigation, and (b) the plaintiff must not have interests antagonistic to those of the class. Here, adequacy is met. Plaintiffs' counsel is more than adequate to represent the class as they are experienced in class action litigation and other complex litigation. Additionally, the named Plaintiffs' interests are not antagonistic of the rest of the class members. The fact that a majority of the named Plaintiffs are former employees of Defendant does not mean that they will inadequately represent current employees who are also members of the class. Defendant has not advanced any arguments to the contrary. Turning to commonality, the Defendant argues that the Plaintiffs cannot meet the requirement because each class member would be entitled to an individualized award of monetary damages. In Dukes, Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 360-61 (2011), the potential class consisted of over one million current and former female Wal-Mart employees. The plaintiffs alleged that local Wal-Mart managers' discretion over pay and promotions is exercised disproportionately in favor of men, leading to an unlawful disparate impact on female employees in violation of Title VII. Wal-Mart, a retail juggernaut, was comprised of seven nation-wide divisions which were made up of 41 regions; each region had 80 to 85 stores. Wal-Mart also had a corporate policy against sex discrimination. Wal-Mart, however, generally committed pay and promotion decisions to the discretion of local managers, who exercised their discretion in a predominately subjective manner.To support their disparate impact claims, the plaintiffs relied on statistical evidence, anecdotal proofs, and expert sociological testimony. The majority of the Supreme Court found that commonality under Rule 23(a) had not been met. The Dukes Court observed that the plaintiffs' claims must depend on a common contention, such as discriminatory conduct by the same supervisor, which is capable of classwide resolution by way of a common answer to the claims. Justice Scalia continued that the plaintiffs wish to sue about literally millions of employment decisions at once but lacked the necessary glue which would connect the reasons for those decisions. Wal-Mart, the Court in Dukes noted, did not have a company-wide testing method that plaintiffs could allege to be biased and it had a general policy against gender discrimination. The current matter is far different from Dukes. First, the Defendant's leasing policy and leasing forms are derived from a central source. Moreover, the Plaintiffs' common claims whether the Lease was breached and/or violated the Truth-in-Leasing regulations are subject to common answers. The Defendant does not have numerous locations in which different lease are or were used. Unlike in Dukes, the validity of the Plaintiff's assertions as to the Truth-in-Leasing violations can be determined in one stroke because demonstrating the invalidly (or validity) of a provision in one Lease will necessarily demonstrate the invalidity (or validity) of that provision in all Leases, as the relevant portions of these Leases are all identical. The same is true for determining whether Defendant breached provisions of the Lease regarding compensation, fuel charges, charge backs, escrow deductions, parking space rentals, and worker's compensation deductions. The Court does not have to analyze the discretionary decisions of potentially hundreds of different managers in order to determine if a class-wide violation exists only the validity of a single contract under definite regulations and consistent, established practices by the company. Thus, Dukes is inapposite and does not countenance against a finding of commonality here. As to typicality, the Defendant primarily argues that because the Plaintiffs individually negotiated their rates, the Plaintiffs' claims are atypical of each other, as the Plaintiffs cannot point to a common practice that the Defendant adhered to in these negotiations. Typicality demands that the claims or defenses of the representative parties are typical of the claims or defenses of the class. However, all plaintiffs are not required to share identical factual circumstances. Instead, a named plaintiff's individual circumstances cannot be markedly different from the other class members. If the claims of the named plaintiffs and putative class members involve the same conduct by the defendant, typicality is established regardless of factual differences. The typicality requirement does not mandate that all putative class members share identical claims, because even relatively pronounced factual differences will generally not preclude a finding of typicality where there is a strong similarity of legal theories' or where the claim arises from the same practice or course of conduct. Here, typicality is met. The claims of the named Plaintiffs are typical of the claims of all potential class members. Plaintiffs seek to remedy (1) violations of Truth-in-Leasing regulations, and (2) breaches of the Lease. Even if there are factual differences about the damage that the improper Lease provisions or breaches of contract may have caused different Plaintiffs, such factual differences do not defeat typicality. The claims of the named Plaintiffs and putative class members all involve the same alleged conduct by Defendant: violations of federal regulations in the Lease and breaches of the Lease. The Court concludes that the Rule 23(a) requirements are met in this matter. Proposed Rule 23(b)(1) Class Rule 23(b)(1)(A) permits certification if prosecuting separate actions by or against individual class members would create a risk of inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class. A class should be certified under Rule 23(b)(1)(B) when "prosecuting separate actions by or against individual class members would create a risk of . . . adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests." This type of class action is commonly applied in a limited fund case, where numerous persons make claims against a fund insufficient to satisfy all claims. Here, the Plaintiffs have not established that there is a limited fund incapable of satisfying all class members' claims, nor have they established that Rule 23(b)(1)(B) otherwise applies. Therefore, the Court denies certification under Rule 23(b)(1)(B) with prejudice. Proposed Rule 23(b)(2) Class Rule 23(b)(2) allows for class treatment when the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole. Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class. The Plaintiffs seek declaratory and injunctive relief under 49 U.S.C. Section 14704(a)(1) for violations of federal Truth-in-Leasing regulations. Section 14704(a)(1) authorizes a private citizen to bring a civil action for injunctive relief for violations of the regulations. The Plaintiffs argue that the Lease violates the regulations in numerous ways. All relevant portions of the Lease are identical for each Plaintiff and putative class member who entered into a Lease with Defendant prior to January 2018, when Defendant stopped using the standard Lease form at issue. Therefore, the Plaintiffs and the relevant putative class members are sufficiently cohesive for purposes of determining whether these portions of the Lease do in fact violate Truth-in-Leasing regulations. The Defendant does not claim that the Lease was compliant with the regulations. Instead, the Defendant argues that injunctive relief is needless and moot because the Defendant stopped using the Lease at issue in January 2018. However, it is well settled that a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice in other words, it does not moot the case. The Court finds Ironbound's mootness argument unpersuasive. The Defendant is still free to return to its old Lease form, or otherwise change its current lease. In addition, there has not been an adjudication that the newly-implemented lease complies with the regulations. Therefore, the Court finds that the alleged violations could reasonably reoccur and does not find declaratory and injunctive relief moot. The Court certifies the following class under Rule 23(b)(2) for declaratory and injunctive relief9 regarding Plaintiffs' alleged Truth-in-Leasing violations. Proposed Rule 23(b)(3) Class The requirements for Rule 23(b)(3) class certification are that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. Here, if the issue were solely liability, it appears that Rule 23(b)(3) certification would be appropriate on both the Truth-in-Leasing violations and the breach of contract action because the Lease is the same, or substantially the same, as to all class members. Damage assessments, however, would prove difficult at the class level. Regarding compensation, Defendant argues that Plaintiffs cannot establish that any 70/30 split agreement was ever in effect due to conflicting testimony from lead Plaintiffs. Yet even assuming that Plaintiffs could establish the existence of a 70/30 split agreement, the Court agrees that the individualized damages calculations would be unmanageable and also predominate over common questions as to liability. Each individual trip of each Plaintiff would have to be reviewed to determine what each class member was actually paid for a particular trip. As noted, payment for each trip was individually negotiated with each driver, meaning that no overarching method or formula was employed. Although the parties have not provided an estimate as to the number of trips involved, it appears safe to assume that thousands if not tens of thousands of trips were involved. This voluminous, individual review is unworkable for purposes of class adjudication. Damages related to charge-backs, escrow account management, and administration of workers' compensation appear more appropriate for Rule 23(b)(3) class certification than the compensation issue. Among other things, establishing an accurate baseline would appear to be easier. For example, as to worker's compensation, the calculation should involve a relatively rudimentary comparison of what Defendant paid for insurance as opposed to what Defendant charged Plaintiffs. That is not to say that the Court is finding that predominance or superiority would be met as to these damage calculations only that they potentially could be. Class Definition Rule 23(c)(1)(B) requires that the class-certification order or incorporated opinion to indicate (1) a readily discernible, clear, and precise statement of the parameters defining the class or classes to be certified, and (2) a readily discernible, clear, and complete list of the claims, issues or defenses to be treated on a class basis. Therefore, the Court certifies the following class under Rule 23(b)(2) for declaratory and injunctive relief regarding Plaintiffs' alleged Truth-in-Leasing violations: All independent owner-operators who entered into a regulated lease with Defendant, directly or indirectly through Defendant's agents, and whose regulated lease was in effect at any time between April 20, 2007 through the pendency of this action. Excluded from this class are Plaintiffs' counsel, officers and directors of Defendant, judicial officers assigned to this case, and staff and immediate relatives of judicial officers assigned to this case. A full-text copy of the District Court's December 27, 2018 Opinion is available at https://tinyurl.com/yb7cahrd from Leagle.com. VAUDRAL LUXAMA, CHANDLER LUXEUS, JAVIER R. GARCIA, FREDO BONHOMME, SANTOS MALDONADO & CHANEL FONTIN, individually and as class representatives, Plaintiffs, represented by JERRY MAROULES, Leanza & Agrapidis, PC, LAUREN TOPELSOHN -- ltopelsohn@lawfirm.ms -- Mandelbaum Salsburg PC & STEVEN I. ADLER -- sadler@lawfirm.ms -- Mandelbaum Salsburg Lazris & Discenza. IRONBOUND EXPRESS, INC., Defendant, represented by DAVID S. KIM -- davidkimesq@sbcglobal.net -- FORD & HARRISON LLP, LISA M. HANNAN, McCARTER & ENGLISH, MARK A. SALOMAN -- msaloman@fordharrison.com -- FORDHARRISON LLP & SALVADOR PEDRO SIMAO -- ssimao@fordharrison.co -- FORD & HARRISON. KEITH D. WEINER: Placeholder Class Certification Bid Filed ---------------------------------------------------------- In the class action lawsuit captioned ROBERT HOFFMAN, Individually and on Behalf of All Others Similarly Situated, the Plaintiff, v. KEITH D. WEINER & ASSOC. CO., L.P.A., the Defendant, Case No. 2:19-cv-00019-DEJ (E.D. Wisc.), the Plaintiff asks the Court for an order certifying classes in this case, appointing the Plaintiff as class representative, and appointing Ademi & O'Reilly, LLP as Class Counsel, and for such other and further relief as the Court may deem appropriate. The Plaintiff further asks that the Court stay this class certification motion until an amended motion for class certification is filed, and that the Court grant the parties relief from the local rules' automatic briefing schedule and requirement that Plaintiff file a brief and supporting documents in support of this motion. 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. Fulton Dental, LLC v. Bisco, Inc., 860 F.3d 541, 545-46 (7th Cir. 2017).[CC] Attorneys for Plaintiff: Mark A. Eldridge, Esq. John D. Blythin, 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 LAOS: 9th Cir. Tosses Hmong Exiles' Lawsuit ------------------------------------------- Helen Christophi, writing for Courthouse News Service, reports that the Ninth Circuit on Jan. 14 tossed a Hmong woman's proposed class action accusing Laos and several of its highest-ranking government officials of trying to exterminate Hmong people who fought in the Vietnam War as part of the CIA's "secret army." In an unsigned memorandum, the three-judge panel affirmed findings that the unidentified woman failed to establish subject-matter jurisdiction under the Alien Tort Statute because her allegations weren't connected with events in the United States. "Because plaintiff does not allege facts sufficient to establish federal jurisdiction, the district court could not have granted her default judgment," the 4-page memorandum. The plaintiff, who lives in an unspecified location in Southeast Asia, sued Laos, its then-president Choummaly Sayasone and several government ministers in November 2015 following the killing of her husband in what she called "the official campaign in Laos to terminate Hmong people." According to the complaint, Laos' communist government launched a campaign immediately after the end of the Vietnam War to "exterminate to their last root" Hmong people in Laos who had helped the CIA fight Vietcong guerillas on the border between Laos and Vietnam as part of a CIA-backed "secret army." The Laotian government "then proceeded to do exactly that and sent the full force of their firepower into the jungles of Laos where hundreds of thousands of Hmong veterans of the ‘Secret War' and their descendants were located, killed, maimed, tortured, raped, and poisoned both the Hmong people and the jungle/their environment [including poisoning of the water systems and food systems]," the woman claimed in her lawsuit. She said this "official military campaigning" constituted "an act of war against the Hmong people in complete defiance" of a February 1973 ceasefire agreement between Laos' warring royalist and communist factions, in violation of the 1962 Geneva Convention and the 1966 United Nations International Covenant on Civil and Political Rights. In August 2017, U.S. District Judge Troy Nunley in Sacramento denied the woman's motion for a default judgment, holding that none of the alleged atrocities were connected to the United States – a necessary requirement for establishing federal jurisdiction under the Alien Tort Statute. Nunley noted the woman's attorney only alleged conduct connected with the United States in a hearing on his client's motion for default judgment, making it ineligible for consideration in his review of the motion. In that hearing, the attorney said the United States breached an "oral treaty" between U.S. President Dwight D. Eisenhower and the "King of Laos," and that this breach occurred in the United States. Under this alleged treaty, the Hmong people would help the United States fight Laos' Pathet Lao communist party in the Vietnam War, and the United States would protect the Hmong after the war. But the United States, the lawyer said, "had no intention of honoring the treaty, even at the moment that agreement was reached," according to Nunley's recap of the proceedings. "It is not at all clear that such allegations, even if they appeared in the complaint, would suffice to allow this court to exercise jurisdiction over this case," Nunley concluded. "However, since these allegations do not even appear in the complaint, they cannot be used to justify the entry of a default judgment." The Ninth Circuit agreed on Jan. 14, finding no connection between the allegations and the United States sufficient to establish federal jurisdiction under the Alien Tort Statute. Further, the panel found Nunley did not abuse his discretion in denying the plaintiff permission to file an amended complaint, "because the additional allegations in the proposed amended complaint are insufficient to establish jurisdiction." "While the proposed amended complaint includes allegations of domestic conduct, these allegations are not relevant to the alleged claims under the ATS," the panel said. U.S. Circuit Judges John Owens and Richard Paez, and U.S. Circuit Judge Danny Boggs, sitting by designation from the Sixth Circuit Court of Appeals, made up the panel. The plaintiff was represented by Herman Franck, Esq.-- franckhermanlaw88@yahoo.com -- of Franck & Associates in Sacramento, who had no immediate comment on Jan. 14. Joseph Fruech, Esq. of the U.S. Justice Department represented the CIA and the U.S. federal government, who were movants in the case. The Justice Department also had no immediate comment. LIFEBRIDGE HEALTH: Murphy Falcon Files Class Action Lawsuit ----------------------------------------------------------- On Dec. 19, Murphy, Falcon & Murphy filed a statewide class action lawsuit against LifeBridge Heath, Inc. ("LifeBridge"), a Baltimore healthcare provider, on behalf of more than 530,000 Maryland consumers whose personal information, social security numbers, birth dates, names, addresses, health insurance information, client treatment information, and medical diagnoses were stolen. The data breach occurred on or about September 27, 2016. Hackers accessed LifeBridge's servers through one of its physician practices and installed malware on a server that hosted LifeBridge's electronic medical records, patient registration, and billing systems. Unbelievably, LifeBridge failed to discover the data breach until approximately March 28, 2018 -- eighteen months later -- allowing the cybercriminals to freely roam its systems during that lengthy period of time. LifeBridge then inexplicably waited nearly two months before disclosing the breach to its patients. The hackers' access was made possible because of LifeBridge's failure to ensure the integrity of its servers and to properly safeguard patients' highly sensitive and confidential information. Well before 2016, LifeBridge knew or should have known that failure to protect patients' personal identifying information and health information from unauthorized access would result in a massive data breach, exposing their patients to serious harm. LifeBridge's conduct also violated many privacy protection statutes, including the Maryland Personal Information Protection Act, the Maryland Social Security Number Privacy Act, and the Maryland Consumer Protection Act. Hassan Murphy, Managing Partner at Murphy, Falcon & Murphy, said today, "LifeBridge's failure to protect their patients' information demonstrates a serious lack of judgment and oversight." Murphy continued, "A health care data breach is devastating in a uniquely personal way. In addition to obtaining the victims' valuable and sensitive personally identifiable information, cybercriminals also obtained information regarding these patients' medical histories, diagnoses, and treatments. LifeBridge should have implemented appropriate and adequate technological safeguards to prevent such a massive cyberbreach from occurring, and certainly should have notified its patients immediately after learning of the breach." "This data breach has compromised every aspect of these patients' personal identities and has subjected them to significant harm. We will continue working until LifeBridge fixes this problem and makes these victims whole," Murphy added. Hassan Murphy, Esq. Telephone: (410) 539-6500 Email: Hassan.Murphy@murphyfalcon.com [GN] LULU'S FASHION: Online Clothes Shop Hit with ADA Suit ----------------------------------------------------- Lulu's Fashion Lounge, LLC is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Kevin Garey, on behalf of himself and all others similarly situated, Plaintiff v. Lulu's Fashion Lounge, LLC, Defendant, Case No. 1:19-cv-00345 (S.D. N.Y., January 13, 2019). Lulu*s Fashion Lounge, Inc. sells clothing, shoes, accessories, and jewelry online. The company offers maxi, party, casual, little black, shift, skater, backless, long sleeve, strapless, bodycon, midi, high-low, and print and floral dresses; and sandals, wedges, flats, boots, vegan shoes, and party shoes.[BN] The Plaintiff appears PRO SE. MCDERMOTT INTERNATIONAL: Public Employees Files Securities Suit --------------------------------------------------------------- The Public Employees' Retirement System of Mississippi, Individually and On Behalf of All Others Similarly Situated, Plaintiff, v. McDermott International, Inc., David Dickson, and Stuart Spence, Defendants, Case No. 4:19-cv-00135 (S.D. Tex., January 14, 2019) is a class action on behalf of persons and entities that held McDermott common stock as of April 4, 2018, and had the right to vote on the Chicago Bridge & Iron Company N.V. ("CB&I") merger pursuant to the Proxy Statement dated March 29, 2018, and were damaged thereby. On December 18, 2017, after the close of the market, McDermott announced it was merging with CB&I pursuant to a stock-for-stock merger, in which McDermott would be the surviving company. The combination was subject to a majority vote of McDermott shareholders. The Defendants disseminated the Proxy Statement to McDermott's shareholders of record as of April 4, 2018, and recommended they approve the Merger at an anticipated shareholder vote on May 2, 2018. Between March 20, 2018 and May 2, 2018, McDermott filed with the SEC and disseminated other materials to shareholders that were intended to influence the shareholder vote. The complaint asserts that the 2018 Proxy Statement was materially false and misleading and failed to disclose material adverse facts about CB&I and CB&I's business, operations, and prospects. Specifically, Defendants failed to disclose to investors that: (1) certain CB&I projects would incur substantially higher costs than publicly represented; (2) the fair value of these CB&I projects would be materially impacted; and (3) as a result of the foregoing, Defendants' positive statements about CB&I's business, operations, and prospects were materially misleading and/or lacked a reasonable basis. As a result of Defendants' wrongful acts and omissions, and the precipitous decline in the market value of the Company's securities, Plaintiff and other Class members have suffered significant losses and damages, says the complaint. Plaintiff The Public Employees' Retirement System of Mississippi, held McDermott common stock. McDermott International, Inc. is incorporated under the laws of Panama with its principal executive offices located in Houston, Texas. McDermott is a provider of integrated engineering, procurement, construction and installation, front-end engineering and design, and module fabrication services for upstream field developments worldwide. David Dickson has been the President and Chief Executive Officer ("CEO") of the Company at all relevant times. Stuart Spence has been the Executive Vice President and Chief Financial Officer ("CFO") of the Company at all relevant times.[BN] The Plaintiff is represented by: Jeffrey W. Chambers, Esq. WOLF POPPER LLP Pennzoil Place 711 Louisiana, Suite 2150 Houston, TX 77002 Phone: (713) 438-5244 Email: jchambers@wolfpopper.com - and - Robert C. Finkel, Esq. Sean Zaroogian, Esq. WOLF POPPER LLP 845 Third Avenue, 12th Floor New York, NY 10022 Phone: (212) 759-4600 Email: rfinkel@wolfpopper.com szaroogian@wolfpopper.com MIAMI-DADE, FL: Alvarez et al. Seek to Certify Class of Teachers ---------------------------------------------------------------- In the class action lawsuit captioned NATASHA ALVAREZ, et al., the Plaintiffs, vs. SCHOOL BOARD OF MIAMI-DADE COUNTY, the Defendant, Case NO. 1:17-cv-22556-JEM (S.D. Fla.), the Plaintiffs move the Court for class certification of: "all of the approximately 19,000 full time instructional personnel ("teachers") employed by the Defendant School District ("District"), whether hired before or after July 1, 2014, who worked for the District between that date and the present." Excluded from the prospective Class are substitute teachers, part time teachers, non-instructional employees and administrative employees.[CC] Attorneys for Plaintiffs: Thomas E. Elfers, Esq. 14036 SW 148 Lane Miami, FL 33186 Telephone: 786-232-8074 E-mail: thomaselfers@comcast.net - and - Craig J. Freger, Esq. 10247 NW 15th Street Pembroke Pines, FL 33028 Telephone: 954-801-9373 E-mail: fregerlaw@gmail.com Counsel for Defendants: David C. Miller, Esq. Denise M. Heekin, Esq. Michal L. Elkins, Esq. James C. Crosland, Esq. BRYANT MILLER OLIVE P.A. One S.E. Third Avenue, Suite 2200 Miami, FL 33131 Telephone: 305 374-7349 E-mail: dmiller@bmolaw.com dheekin@bmolaw.com melkins@bmolaw.com jcrosland@bmolaw.com MISSOURI: Court Certifies Class of Adult Parolees in Gasca Suit --------------------------------------------------------------- In the case, STEPHANIE GASCA, et al., Plaintiffs, v. ANNE PRECYTHE, Director of the Missouri, Department of Corrections, et al., Defendants, Case No. 17-cv-04149-SRB (W.D. Mo.), Judge Stephen R. Bough of the U.S. District Court for the Western District of Missouri, Southern Division, granted the Plaintiffs' Renewed Motion for Class Certification. The lawsuit challenges the parole revocation policies and procedures of the Missouri Department of Corrections and its Division of Probation and Parole. The Plaintiffs allege the revocation policies and procedures violate their rights under the Due Process Clause of the Fourteenth Amendment as articulated in Gagnon v. Scarpelli, and Morissey v. Brewer. The Plaintiffs seek prospective relief and request certification of the class of all adult parolees in the state of Missouri who currently face, or who in the future will face, parole revocation proceedings. The Defendants consent to certification of the proposed class. Judge Bough finds that the proposed class satisfies the Rule 23(a) requirements of numeorsity, commonality, typicality, and adequacy. He further finds that the litigating class members' claims individually would create a risk of inconsistent or varying adjudications that would establish incompatible standards of conduct for the Defendants' parole revocation proceedings. Moreover, he finds that the Defendants' parole revocation policies and procedures apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole. He also notes that the Defendants filed no opposition to the Plaintiffs' Renewed Motion for Class Certification, and the Defendants consent to class certification. Accordingly, Judge Bough granted the Plaintiffs' Renewed Motion for Class Certification. Pursuant to Federal Rules of Civil Procedure 23(a), (b)(1)(A), and (b)(2), he certified the matter as a class action. The class is defined as all adult parolees in the state of Missouri who currently face, or who in the future will face, parole revocation proceedings. Mildred Curren, Timothy Gallagher, Stephanie Gasca, Kenneth Hemphill, Jesse Neely, Soloman Warren, and Amber Wyse are designated as the Class Representatives; and Locke E. Bowman, Sheila A. Bedi, and Amy E. Breihan will serve as Class Counsel. The parties will meet and confer within 14 days to arrange a court hearing on how to proceed with the timing of the class notifications. A full-text copy of the Court's Jan 4, 2019 Order is available at https://is.gd/L4wTFL from Leagle.com. Stephanie Gasca, Mildred Curren, Kenneth Hemphill, Jesse Neely, Amber Wyse, Timothy Gallagher & Solomon Warren, Plaintiffs, represented by Amy Elizabeth Breihan -- amy.breihan@macarthurjustice.org -- MacArthur Justice Center at St. Louis, Locke E. Bowman -- l-bowman@law.northwestern.edu -- Roderick and Solange MacArthur Justice Center, pro hac vice, Megan G. Crane, pro hac vice & Sheila A. Bedi -- sheila.bedi@law.northwestern.edu -- Roderick and Solange MacArthur Justice Center, pro hac vice. Anne L. Precythe, in her official capacity, Director of the Missouri Department of Corrections, Kenneth Jones, in his official capacity, Chairman of the Missouri Division of Probation and Parole, Jennifer Zamkus, in her official capacity, Vice Chair of the Missouri Board of Probation and Parole, Jim Wells, in his official capacity, Member of the Missouri Board of Probation and Parole, Martin Rucker, in his official capacity, Member of the Missouri Board of Probation and Parole, Ellis McSwain, Jr, in his official capacity, Member of the Missouri Board of Probation and Parole, Gary Dusenberg, in his official capacity, Member of the Missouri Board of Probation and Parole & Paul Fitzwater, in his official capacity, Member of the Missouri Board of Probation and Parole, Defendants, represented by Doug Shull , Missouri Attorney General's Office & Justin Moore, Missouri Attorney General's Office. MONSANTO COMPANY: Matlock Sues Over Roundup Exposure ---------------------------------------------------- Martha Matlock, individually and on behalf of the Estate of Gregory Dean Matlock, Plaintiff, v. Monsanto Company, Defendant, Case No. 3:19-cv-00110-B (N.D. Tex., January 14, 2019) is an action for damages suffered by Decedent Gregory Dean Matlock, as a direct and proximate result of Defendant's negligent and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, advertising, distribution, labeling, and/or sale of the herbicide Roundup, containing the active ingredient glyphosate. Plaintiff maintains that Roundup and/or glyphosate is defective, dangerous to human health, unfit and unsuitable to be marketed and sold in commerce, and lacked proper warnings and directions as to the dangers associated with its use. The Decedent's injuries, like those striking thousands of similarly situated victims across the country, were avoidable. Rather than performing appropriate tests, Defendant relied upon flawed industry-supported studies designed to protect Defendant's economic interests rather than Plaintiff and the consuming public. Despite its knowledge that Roundup was considerably more dangerous than glyphosate alone, Defendant continued to promote Roundup as safe, says the complaint. Plaintiff, Martha Matlock, is a natural person and is a resident of Mineola, Texas. She brings this action in her capacity as the surviving spouse of Gregory Dean Matlock. Monsanto Company is a Delaware corporation with its headquarters and principal place of business in St. Louis, Missouri. Defendant Monsanto Company is in the business of researching, testing, developing, designing, formulating, manufacturing, producing, assembling, packaging, labeling, advertising, promoting, marketing, selling, supplying and distributing herbicides, including Roundup products.[BN] The Plaintiff is represented by: Andrew Gardner, Esq. JOHNSON LAW GROUP 2925 Richmond Ave., Suite 1700 Houston, TX 77098 Phone: (713)626-9336 Facsimile: (713) 583-9460 Email: agardner@johnsonlawgroup.com - and - Kori Westbrook, Esq. JOHNSON LAW GROUP 2925 Richmond Ave., Suite 1700 Houston, TX77098 Phone: (713)626-9336 Facsimile: (713) 583-9460 Email: kwestbrook@johnsonlawgroup.com NATIONAL CREDIT: Class Cert. Proceedings in Gochet Suit Stayed -------------------------------------------------------------- In the class action lawsuit captioned KEANNA GOCHET, the Plaintiff, v. NATIONAL CREDIT SERVICES, INC., the Defendant, Case No. 2:19-cv-00020-WED (E.D. Wisc.), the Hon. Judge William E. Duffin entered an order on Jan. 3, 2019, granting Plaintiff's motion to stay further proceedings on motion for class certification. On January 3, 2019, 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." The Court held that the parties are relieved from the automatic briefing schedule set forth in Civil Local Rule 7(b) and (c). Moreover, for administrative purposes, it is necessary that the Clerk terminate the plaintiff's motion for class certification. However, the motion will be regarded as pending to serve its protective purpose under Damasco.[CC] NATIONAL CREDIT: Placeholder Bid for Class Certification Filed -------------------------------------------------------------- In the class action lawsuit captioned KEANNA GOCHET, Individually and on Behalf of All Others Similarly Situated, the Plaintiff, v. NATIONAL CREDIT SERVICES INC., the Defendant, Case No. 2:19-cv-00020-WED (E.D. Wisc.), the Plaintiff asks the Court for an order certifying classes in this case, appointing the Plaintiff as class representative, and appointing Ademi & O'Reilly, LLP as Class Counsel, and for such other and further relief as the Court may deem appropriate. The Plaintiff further asks that the Court stay this class certification motion until an amended motion for class certification is filed, and that the Court grant the parties relief from the local rules' automatic briefing schedule and requirement that Plaintiff file a brief and supporting documents in support of this motion. 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. Fulton Dental, LLC v. Bisco, Inc., 860 F.3d 541, 545-46 (7th Cir. 2017).[CC] Attorneys for Plaintiff: Mark A. Eldridge, Esq. John D. Blythin, 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 NELSON MANAGEMENT: Faces Fischler Suit Alleging ADA Violation ------------------------------------------------------------- Nelson Management Group Ltd. is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Brian Fischler, individually and on behalf of all other persons similarly situated, Plaintiff v. Nelson Management Group Ltd., Defendant, Case No. 1:19-cv-00342 (S.D. N.Y., January 13, 2019). Nelson Management Group, Ltd. is a full-service Real Estate Management firm.[BN] The Plaintiff is represented by: Christopher Howard Lowe, Esq. Lipsky Lowe LLP 630 Third Avenue New York, NY 10017-6705 Tel: (212) 392-4772 Fax: (212) 444-1030 Email: chris@lipskylowe.com NOBILIS HEALTH: Misled Shareholders, Robbins Arroyo Suit Says ------------------------------------------------------------- Shareholder rights law firm Robbins Arroyo LLP disclosed that purchasers of Nobilis Health Corp. filed a class action complaint against the company's officers and directors for alleged violations of the Securities Exchange Act of 1934 between May 8, 2018 and November 15, 2018. Nobilis Health Corp. owns and manages specialty surgical hospitals, ambulatory surgery centers, and multispecialty clinics. View this information on the law firm's Shareholder Rights Blog: https://www.robbinsarroyo.com/nobilis-health-corp-dec-18/ Nobilis Health Accused of Overstating Revenue According to the complaint, Nobilis Health failed to disclose that its accounts receivable and revenue were overstated and need re-evaluation and adjustment. On August 2, 2018, the truth began to emerge when Nobilis Health reported that a new accounting standard regarding account receivable had impacted revenue. On this news, Nobilis Health's share price fell $0.20, or 17.39%, to $0.95. On November 9, 2018, Nobilis filed a Form 12b-25, stating that it was unable to timely file its quarterly report. On this news, Nobilis Health's share price fell $0.18, more than 25%, to $0.52. Then, on November 12, 2018, Nobilis Health announced it was not in compliance with the NYSE's listing requirements. The company's stock fell to just $0.48 as a result, and now trades at under $0.25. Nobilis Health Shareholders Have Legal Options Concerned shareholders who would like more information about their rights and potential remedies can contact attorney Leonid Kandinov at (800) 350-6003, LKandinov@robbinsarroyo.com, or via the shareholder information form on the firm's website. Leonid Kandinov, Esq. Robbins Arroyo LLP 600 B Street, Suite 1900 San Diego, CA 92101 Telephone: (619) 525-3990 Toll Free: (800) 350-6003 Email: LKandinov@robbinsarroyo.com [GN] OHIO MULCH: Court Certifies Two Subclassses in Smyers FLSA Suit --------------------------------------------------------------- In the case, DIANE SMYERS, On behalf of herself and other members of the general public similarly situated, Plaintiff, v. OHIO MULCH SUPPLY, INC., et al., Defendants, Case No. 2:17-cv-1110 (S.D. Ohio), Judge Algenon L. Marbley of the U.S. District Court for the Southern District of Ohio, Eastern Division, (i) granted the P Plaintiff's Pre-Discovery Motion for Conditional Class Certification and Court-Supervised Notice to Potential Opt-In Plaintiffs; and (ii) denied as moot the Defendants' Motions to Strike. Plaintiff Smyers worked for Defendant Ohio Mulch Supply, at three of their locations in the greater Columbus metro area, from March 2015 until October 2017. Ms. Smyers was a retail manager for Ohio Mulch Supply ("OMS"). She alleges that OMS regularly required her -- and others similarly situated -- to perform uncompensated work. Specifically, Ms. Smyers alleges, inter alia, that OMS retail managers were required to travel to the bank and between OMS locations without compensation; that she and others regularly worked more than 40 hours without proper compensation; and that she and others had time deducted from their compensable hours for a meal break. She initiated the collective action against OMS for violations of the Fair Labor Standards Act ("FLSA"); the Ohio Minimum Fair Wage Standards Act; and the Ohio Prompt Pay Act. Ms. Smyers' initial complaint was filed with Robert Carter as another named Plaintiff, but Mr. Carter has since been offered a Rule 68 Settlement by the Defendants. In addition, Ms. Smyers' ex-husband, Philip Smyers, filed a Supplemental Witness Statement in Support of Conditional Certification. The Defendants have submitted Motions to Strike information from Plaintiff Carter, as well as to strike Mr. Smyers' Declaration. Ms. Smyers herself also submitted a Second Declaration, which the Defendants have also moved to strike. Ms. Smyers seeks conditionally to certify the following collective action under the FLSA, consisting of two subclasses: 1. All current and former Ohio hourly, non-exempt employees of the Defendants, at any retail location, who since Dec. 18, 2014 worked over 40 hours in any workweek but were not properly compensated for all their overtime hours worked under the FLSA because of the Defendants' automatic meal deduction policy; and 2. All current and former Ohio Hourly Retail Managers of Defendants who since Dec. 18, 2014 worked over 40 hours in any workweek but were not properly compensated for all of their overtime hours because of the Defendants' policy of not compensating them for any time spent working if they were not physically at one of the Defendants' OMS stores. In addition to the allegations advanced in her Complaint, Ms. Smyers submitted to the Court a declaration indicating that she and other putative members of the collective action are similarly situated because all of Defendants hourly, non-exempt employees are subject to the same payroll policies and procedures. In her declaration, Ms. Smyers submits to the Court that the Defendants automatically deducted a 30-minute meal break from hourly, nonexempt employees' daily hours worked regardless of whether the employee actually took the 30-minute uninterrupted break. Ms. Smyers says she was instructed to forward work phone calls to her personal cell phone so she could answer the calls after her shift ended. Her declaration also says OMS required her and other employees to clock out anytime they left OMS premises, so they were not compensated for time spent traveling between the Defendants' three locations—or for time on the phone, answering email, and doing other work-related tasks off-site. Judge Marbley finds that conditional certification of the proposed class is appropriate. He says the sworn statement that Ms. Smyers submitted with the Motion for Conditional Certification is sufficient at this "fairly lenient" stage to show that Ms. Smyers is similarly situated to other putative class members because they suffer from a single, FLSA-violating policy. The Defendants may file a motion for decertification at a later date if discovery reveals that the members of the putative class are not similarly situated. Next, the Judge finds that the Defendants submitted a series of motions objecting to the Plaintiffs' filings on procedural grounds. The Defendants first submitted a motion to strike information from Plaintiff Carter's Notice of Acceptance of Rule 68 Offer of Judgment. Next, theys submitted a motion to strike Ms. Smyers' Second Declaration. Then the Defendants submitted a motion to strike Phillips Smyers' Declaration. However, in none of these filings did the Defendants object to the language of Ms. Smyers' proposed notice to conditionally certify the class. As a result, and because he finds it sufficient, Ms. Smyers' motion is granted. Finally, the Judge denied the Defendants' Motions to Strike as moot. Because an FLSA collective action may be conditionally certified with just one satisfactory declaration, the Judge holds he needs not decide whether Mr. Carter's declaration must be disregarded. Similarly, Defendants' Motions to Strike regarding Ms. Smyers' second declaration and Mr. Smyers' declaration for being in violation of Local Rule 7.2 are denied as moot. The Judge declines to strike Mr. Smyers' declaration or Ms. Smyers' second declaration, and instead denied the Defendants' Motions as moot because the FLSA collective action is conditionally certified. For the reasons stated, Judge Marbley granted the Plaintiff's Motion to Conditionally Certify, and conditionally certified the following collective action, consisting of two subclasses: 1. All current and former Ohio hourly, non-exempt employees of the Defendants, employed at any retail location, who since Dec. 18, 2014 worked over 40 hours in any workweek but were not properly compensated for all their overtime hours worked under the FLSA because of Defendants' automatic meal deduction policy; and 2. All current and former Ohio Hourly Retail Managers of the Defendants who since Dec. 18, 2014 worked over 40 hours in any workweek but were not properly compensated for all of their overtime hours because of the Defendants' policy of not compensating them for any time spent working if they were not physically at one of the Defendants' OMS stores. The Judge further ordered that within 14 days of the date the notice is approved, the Defendant will answer the Plaintiffs Opt-In Discovery, and will provide to the Plaintiff an Excel spreadsheet containing the full name, last known address, telephone number, all known e-mail addresses, job titles, and dates and location(s) of employment of those individuals named by the subclasses (1) and (2) above. A full-text copy of the Court's Jan 4, 2019 Opinion and Order is available at https://is.gd/iW5Cb4 from Leagle.com. Diane Smyers, Plaintiff, represented by Matthew Porter Coffman -- mcoffman@mcoffmanlegal.com -- Coffman Legal, LLC & Peter Alan Contreras -- peter.contreras@contrerasfirm.com -- Contreras Law. Philip Smyers, Plaintiff, pro se. Ohio Mulch Supply, Inc. & Jim Weber II, Defendants, represented by Marion H. Little -- little@litohio.com -- Zeiger Tigges & Little LLP & Christopher J. Hogan -- hogan@litohio.co -- Zeiger Tigges & Little LLP. OLDE GOOD THINGS: Antique Shop Faces Class Suit under ADA --------------------------------------------------------- Olde Good Things, Inc. is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Derrick U Dennis, on behalf of himself and all others similarly situated, Plaintiff v. Olde Good Things, Inc., Defendant, Case No. 1:19-cv-00268 (E.D. N.Y., January 14, 2019). Olde Good Things has one of the largest inventories of unique and antique items.[BN] The Plaintiff is represented by: Jonathan Shalom, Esq. Shalom Law, PLLC 124-04 Metropolitan Avenue Kew Gardens, NY 11374 Tel: (516) 807-1748 Email: jshalom@jonathanshalomlaw.com ONE KINGS LANE: Dennis Files Suit Alleging ADA Breach ----------------------------------------------------- One Kings Lane, LLC is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Derrick U Dennis, on behalf of himself and all others similarly situated, Plaintiff v. One Kings Lane, LLC, Defendant, Case No. 1:19-cv-00267 (E.D. N.Y., January 14, 2019). One Kings Lane, LLC is a retail store services featuring a wide variety of consumer goods including household and lifestyle products image mark.[BN] The Plaintiff is represented by: Jonathan Shalom, Esq. Shalom Law, PLLC 124-04 Metropolitan Avenue Kew Gardens, NY 11374 Tel: (516) 807-1748 Email: jshalom@jonathanshalomlaw.com PAUL VALLAS: Klueh Files FCRA Suit in N.D. Illinois --------------------------------------------------- A class action lawsuit has been filed against Paul Vallas for All Chicago. The case is styled as Jeff Klueh and Jake Campbell individually and on behalf of all other similarly situated Illinois residents, Plaintiffs v. Paul Vallas for All Chicago, Defendant, Case No. 1:19-cv-00249 (N.D. Ill., January 11, 2019). The docket of the case states the nature of suit as Consumer Credit filed pursuant to the Fair Credit Reporting Act. Paul Gust Vallas is an American politician and former superintendent of the Bridgeport Public Schools and the Recovery School District of Louisiana, former CEO of both the School District of Philadelphia and the Chicago Public Schools, and a former budget director for the city of Chicago.[BN] The Plaintiffs are represented by: James C. Vlahakis, Esq. Sulaiman Law Group, Ltd. 2500 S. Highland Avenue, Suite 200 Lombard, IL 60148 Tel: (630) 575-8181 Email: jvlahakis@sulaimanlaw.com PHARMAVITE LLC: Court Grants Bid to Dismiss Anthony Suit Under UCL ------------------------------------------------------------------ In the case, EUGENE ANTHONY, et al., Plaintiffs, v. PHARMAVITE, Defendant, Case No. 18-cv-02636-EMC (N.D. Cal.), Judge Edward M. Chen of the U.S. District Court for the Northern District of California granted the Defendant's Motion to Dismiss. Plaintiffs Anthony and Amanda Holt bring the class action against Pharmavite, alleging Pharmavite manufactures, markets, and sells biotin supplements through false, misleading, and deceptive advertising in violation of California's Unfair Competition Law ("UCL"). Pharmavite's labeling represents that its biotin supplements may help support healthy hair, skin and nails. The Plaintiffs allege these health benefit representations are misleading because most people obtain more than enough biotin from their daily diets, so biotin supplements are unneeded, superfluous, and will provide no health benefits. Only a minuscule percentage of individuals with biotin deficiencies could potentially benefit from biotin supplements. At issue in the case are three of Pharmavite's biotin supplements: (1) Biotin 2500 mcg; (2) Hair Skin Nails adult gummies; and (3) Biotin 3000 mcg adult gummies. The Plaintiffs purchased the Biotin Products after reading the product labels in reliance upon the health benefit representations. However, they allege the health benefit representations are false, misleading and reasonably likely to deceive the public because the Biotin Products will not provide any benefits" to the general population. According to the Plaintiffs, the human body only requires a finite amount of biotin on a daily basis for it to perform its enzymatic functions as there are a finite number of enzymes that use biotin. Once there is sufficient biotin in the body, any additional supplements are superfluous and the body ultimately excretes them. The Plaintiffs allege, therefore, that apart from the 0.00138% of the population that is biotin deficient, the Biotin Products are unneeded, superfluous, and completely worthless and will not provide any benefits. On May 4, 2018, the Plaintiffs filed the class action complaint claiming that had they known the truth about Pharmavite's alleged misrepresentations, they would not have purchased the Biotin Products. They seek relief in the form of, inter alia, restitution, disgorgement, a corrective advertising campaign, and injunctive relief. On Aug. 27, 2018, Pharmavite moved to dismiss the Plaintiffs' complaint on the basis that they failed to state a plausible claim with the particularity required by Rule 9(b), failed to state a UCL violation on the merits, and failed to demonstrate a real and immediate threat of repeated injury sufficient to sustain standing to seek injunctive relief. Both parties ask the Court to take judicial notice of certain materials. Judge Chen granted Pharmavite's request for judicial notice of the labels for the three Biotin Products at issue, because the Plaintiffs reference and necessarily rely upon the labels throughout the complaint. He denied Pharmavite's request for judicial notice of the IOM report, and the National Institute of Health Biotin Fact Sheet, because Pharmavite cites them to raise factual disputes as to the relative rarity of biotin deficiencies in the population that are not appropriate for resolution on a motion to dismiss. He also denied Pharmavite's remaining requests, and the Plaintiffs' requests for judicial notice, because the materials they reference are not necessary for the resolution of the motion. Next, the Judge cannot conclude as a matter of law that no reasonable consumer would be misled by the labeling on the Biotin Products. Although courts have recognized that qualifying phrases or statements may be material to determining a reasonable consumer's understanding, "may" is misleading here because 99.9962% of people have no possibility of benefiting from the Biotin Products. A reasonable consumer could understand "may" to mean a reasonable possibility or a reasonable probability, rather than merely a vanishingly small possibility on the order of 0.00138%. And in view of the promises of the health benefit representation on the labels, the Judge cannot find that the Defendant's disclaimer is so unambiguous and express such that a reasonable consumer is unlikely to be deceived as a matter of law by the health benefit representations on the Biotin Products. However, the Judge does find that the Plaintiffs' complaint is lacking in the particularity of pleading required by Rule 9(b). The complaint is devoid of any allegations regarding whether the Plaintiffs saw the asterisk, read the corresponding disclaimer, and if they did read it, how the disclaimer affected their purchasing decision. Accordingly, the complaint is dismissed with leave for the Plaintiffs to amend to plead with the particularity required by Rule 9(b) what they saw, relied upon, and understood with respect to Pharmavite's labeling. Finally, he dismissed with prejudice the Plaintiffs' claim for injunctive relief. He finds that the import of the Plaintiffs' allegations is that Pharmavite can do nothing to alter its advertising or product to make biotin supplements beneficial to the Plaintiffs. The Plaintiffs do not face the injury of being unable to rely on Pharmavite's representations of its Biotin Products in deciding whether or not they should purchase the Biotin Products in the future. They therefore do not have standing to seek injunctive relief. For the foregoing reasons, Judge Chen dismissed with prejudice the Plaintiffs' claim for injunctive relief. The Plaintiffs' remaining claims are dismissed without prejudice under Rule 9(b) but not under Rule 12(b)(6). The Plaintiffs will have 60 days to amend their complaint. The order disposes of Docket No. 12. A full-text copy of the Court's Jan 4, 2019 Order is available at https://is.gd/AIDyVF from Leagle.com. Eugene Anthony, on Behalf of Themselves and All Others Similarly Situated & Amanda Holt, Plaintiffs, represented by Carrie Ann Laliberte -- claliberte@bffb.com -- Bonnett Fairbourn Friedman Balint, pro hac vice, Elaine A. Ryan -- eryan@bffb.com -- Bonnett Fairbourn Friedman & Balint, P.C, pro hac vice, Stewart M. Weltman -- sweltman@siprut.com -- Siprut PC & Patricia Nicole Syverson -- psyverson@bffb.com -- Bonnett Fairbourn. Pharmavite, a California limited, Defendant, represented by Rene Pierre Tatro, Tatro Tekosky Sadwick LLP. PHILLIPS & COHEN: Placeholder Bid for Class Certification Filed --------------------------------------------------------------- In the class action lawsuit captioned MEFAIL SERIFOSKI, Individually and on Behalf of All Others Similarly Situated, the Plaintiff, v. PHILLIPS & COHEN ASSOCIATES, LTD., the Defendant, Case No. 2:19-cv-00024-WED (E.D. Wisc.), the Plaintiff asks the Court for an order certifying classes in this case, appointing the Plaintiff as class representative, and appointing Ademi & O'Reilly, LLP as Class Counsel, and for such other and further relief as the Court may deem appropriate. The Plaintiff further asks that the Court stay this class certification motion until an amended motion for class certification is filed, and that the Court grant the parties relief from the local rules' automatic briefing schedule and requirement that Plaintiff file a brief and supporting documents in support of this motion. 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. Fulton Dental, LLC v. Bisco, Inc., 860 F.3d 541, 545-46 (7th Cir. 2017).[CC] Attorneys for Plaintiff: Mark A. Eldridge, Esq. John D. Blythin, 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 PIXELS.COM: Faces Class Action in New York Asserting ADA Violation ------------------------------------------------------------------ Pixels.com, LLC is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Kevin Garey, on behalf of himself and all others similarly situated, Plaintiff v. Pixels.com, LLC, Defendant, Case No. 1:19-cv-00387 (S.D. N.Y., January 14, 2019). Pixels is the premier online marketplace for buying and selling wall art, home decor, lifestyle products, and more.[BN] The Plaintiff is represented by: Jonathan Shalom, Esq. Shalom Law, PLLC 124-04 Metropolitan Avenue Kew Gardens, NY 11374 Tel: (516) 807-1748 Email: jshalom@jonathanshalomlaw.com PRESIDENTIAL LIMOUSINE: Thurmond Suit Settlement Has Final Approval ------------------------------------------------------------------- In the case, WILLIE THURMOND and DAVID THOMAS, Individually and on behalf of others similarly situated, Plaintiff, v. PRESIDENTIAL LIMOUSINE, PRESIDENTIAL LIMOUSINE, A NEVADA CORPORATION, and PRESIDENTIAL LIMOUSINE CONCIERGE SERVICE, INC., and BRENT J. BELL, Defendants, Case No. 2:15-cv-01066-MMD-PAL (D. Nev.), Judge Miranda M. Du of the U.S. District Court for the District of Nevada granted (i) the parties' Joint Motion for an Order Granting Final Approval to Class Action Settlement; Approving Payment of the Settlement Administrator's Fees; and Entering a Final Judgment; and (ii) the Plaintiffs' Counsel's Unopposed Motion for Order Granting Proposed Award of Attorneys' Fees and Costs and Approval of Named Plaintiff Service Awards. On Jan. 4, 2019, the Court considered the parties' Joint Motion and the Plaintiffs' Counsel's Unopposed Motion. Pursuant to Fed. R. Civ. P. 23(e) and the FLSA, Judge Du granted final approval of the settlement and finds that the settlement is fair, reasonable, and adequate in all respects, including the attorneys' fees, costs, and Class Representative Service awards provisions. The Judge confirmed the appointment of Leon Greenberg and Dana Sniegocki of Leon Greenberg Professional Corporation as the class counsel for the settlement class and approved their requests for attorneys' fees of $94,000 and an expenses payment of $9,039.55 from the Settlement Fund for their services on behalf of the Plaintiffs and the Class. He also finds that Simpluris as the Claims Administrator will be paid an award for Administration Costs of $7,815 for administering the Settlement in the matter. The Judge confirmed the appointment of Willie Thurmond and David Thomas as the Class Representatives; and approved and directed the payment of $5,000 to each of them, to be paid from the Settlement Fund, as the Class Representative Service Awards for prosecuting the case successfully and securing the recovery for the Class and such awards will be so paid as set forth in the Stipulation. Upon entry of the Order, the case will have resulted in a Final Judgment in respect to all claims and all parties and the Complaint will be dismissed with prejudice. A full-text copy of the Court's Jan 4, 2019 Order is available at https://is.gd/C4PfCR from Leagle.com. Willie Thurmond, Plaintiff, represented by Dana Sniegocki , Leon Greenberg, Leon Marc Greenberg , Leon Greenberg Professional Corporation & Richard Segerblom . David Thomas, George W. Caldwell, Wilson Alencar, Luis Maimo Oropeza, Lynch J. Piernas, Rodney Spight, Michael A. Flores, L. Scott Granneman, Mohamed Abdel Ghany, William Hanson, Mandrel Jones, Richard M. Martinez, Anthony Ray, Justin Royston, Susan Sparks, Oscar Velez, NyAnn L. Young, Chris Arambula, Barbara E. Chandler, Carlos L. DeAlba, Jr., Scott Greenspan, Robert L. Grossman, Sandra Hansel, Thomas G. Kelley, Scott J. Raymond, Lynn Swartwood, Jr., Norbert Turas, Mark Berry, Miguel A Funes-Amador, Danny Hoover, Glenna L. Magee, Jose Tirado-Cruz, Ricardo Zavala, Carlos Aguilar, Lee A. Buchholtz, Darren Craney, Raphael J. Lee, II, Trevor Skelton, Jason M. Patrick, Deren Pickens, Michael Walsh, Zack Kalashian, Bryant Odis Johnson, Daniel Robledo, Rodney A Strong, Randy White, Kenneth A Finegood, Imelda Sanchez, Myles Bunch & David L Perkins, Plaintiffs, represented by Dana Sniegocki -- dana@overtimelaw.com -- Leon Greenberg & Leon Marc Greenberg -- leongreenberg@overtimelaw.com -- Leon Greenberg Professional Corporation. Presidential Limousine, Defendant, represented by Anthony L. Hall, Esq. -- ahall@hllandhart.com -- R. Calder Huntington, Esq. -- rchuntington@hollandhart.com -- HOLLAND & HART LLP. Brent J Bell, Defendant, represented by Anthony L. Hall, Holland and Hart LLP, Dana Sniegocki, Leon Greenberg, Peter D. Navarro, Holland & Hart LLP & R. Calder Huntington, MGM Resorts International. Bell Trans, doing business as, Defendant, represented by Anthony L. Hall, Holland and Hart LLP & Peter D. Navarro, Holland & Hart LLP. PROCARE CRS: Lawson Deal Approval Held in Abeyance Pending Notice ----------------------------------------------------------------- In the case, DEBORAH L. LAWSON, Individually and on behalf of others similarly situated, Plaintiff, v. PROCARE CRS, INC., dba PRO-CARE COMMUNITY RESIDENTIAL SERVICES, INC., a Domestic For Profit Business Corp., Defendants, Case No. 18-CV-00248-TCK-JFJ (N.D. Okla.), Judge Terence C. Kern of the U.S. District Court for the Northern District of Oklahoma held in abeyance (1) the Parties' Joint Motion for Approval of Settlement Agreement and Dismissal with Prejudice; and (2) the Parties' Joint Motion for Leave to File Joint Motion for Approval of Settlement Agreement and Dismissal with Prejudice Under Seal for 10 days, pending the Parties' filing the appropriate Notice. Lawson and the other Plaintiffs who filed Consents to Join, seek payment of overtime compensation pursuant to the Fair Labor Standards Act ("FLSA") and Okla. Stat. tit. 40, Sections 165.1, et. seq. On May 8, 2018, Lawson filed a Complaint on behalf of herself and all others similarly situated alleging that, at all times relevant to her lawsuit, she was employed as a Habilitation Training Specialist and/or Habilitation Training Specialist Supervisor/House Manager for the Defendant. She further alleges that while serving in those positions, she was not exempt and was therefore entitled to one and one-half times her regular hourly wage for all time worked in excess of 40 hours in one week. However, despite her status as not exempt, Lawson frequently worked in excess of 40 hours per week, but did not receive overtime compensation for the hours worked in excess of 40 hours. Two days after the Plaintiff initiated the lawsuit, on May 10, 2018, 14 other employees executed Consents to Join. The Court entered a scheduling order on July 27, 2018, setting the close of discovery on Dec. 27, 2018. It appears from the parties' lack of filings that discovery proceeded without incident after that point. Finally, on Dec. 21, 2018, the parties filed their Approval Motion and their Motion to File Under Seal. As set forth in the parties' Joint Motions, the parties seek approval of the Confidential Settlement Agreement and Full and Final Release of Claims between the Defendant and the Named Plaintiffs only. The Defendant does not admit any liability in the Settlement Agreement. However, the parties agree as to the maximum amount that each Named Plaintiff would recover if the Named Plaintiffs were to fully succeed on their claims. The parties appear to further agree to a distribution of the Settlement Amount such that each Named Plaintiff receives at least 75% of the amount that they would have received had they been fully successful on their claims. Finally, both parties allege that the Settlement Agreement is fair and reasonable. Judge Kern finds that because the Court is not required to review the merits of the settlement agreement, the public has no compelling interest in the disclosure of the parties' Approval Motion and Settlement Agreement. Accordingly, the parties' filings have been sealed, and will remain sealed until the parties inform the Court whether they still wish for the Court to review the merits of the settlement. If the parties no longer wish for the Court to review the merits of the settlement agreement, the motions will remain sealed and will be denied as moot upon the parties' filed stipulation of dismissal. If, however, the parties do wish for the Court to review the merits of the settlement agreement, the Court will also review the parties' Motion for Leave to File Under Seal for compliance with Local Civil Rule 79.1(a) at that time. He therefore ordered that within 10 days, the parties will file a Notice with the Court advising whether they still wish for the Court to review the merits of the settlement agreement. If the parties do wish for the Court to do so, the Court will review both the Approval Motion and the Motion for Leave to File Under Seal at that time. If the parties no longer wish for the Court to review the merits of the settlement agreement, to terminate the case, the parties may include in their Notice that all claims have been resolved, and that the parties desire to dismiss the case. A full-text copy of the Court's Jan 4, 2019 Opinion and Order is available at https://is.gd/KXk98i from Leagle.com. Deborah L Lawson, Individually and on behalf of others similarly situated, Queshnia Lashau Ackerson, Karissa Eileen Allen, Tonia Renea Corbett, Dianna Teresia Demery, Gwenella Marie Hall, Rhonda Denise Hall, Courtney Ann Harvel, Summer D Holkum, Crystal Renee Lopez, Charity Nicole Mahone, Ronald DeLane Pozek, Kevin D Risley, Ashton M Williams & Patsy Yandell, Plaintiffs, represented by Terry Arthur Hall -- thall@okhnhlaw.com -- Law Office of Terry A Hall. ProCare CRS, Inc., dba Pro-Care Community Residential Services, Inc., a Domestic For Profit Business Corp., Defendant, represented by Molly A. Aspan -- maspan@hallestill.com -- Hall Estill Hardwick Gable Golden & Nelson. PROCTER & GAMBLE: Settlement Reached in Flushable Wipes Suit ------------------------------------------------------------ The following statement is being issued by Gutride Safier LLP regarding the Charmin Freshmates Class Action Settlement. WHO IS AFFECTED A class action settlement has been reached involving Charmin Freshmates Flushable Wipes and any other pre-moistened wipes sold under the Charmin brand name bearing the word "flushable" on the package label ("Wipes"). The lawsuits claim that the Wipes are not actually flushable. The Procter & Gamble Company ("P&G") denies these allegations and maintains that the Wipes perform as advertised. You may be an eligible class member if you purchased the Wipes anywhere in the United States, except in the State of New York, between April 6, 2011 and November 26, 2018. WHAT DOES THE SETTLEMENT PROVIDE? In connection with this settlement, P&G will include additional information on the labeling of the Wipes and agreed to stricter industry-standard testing protocols. P&G will also provide a sixty cent ($0.60) per-package refund, up to $4.20 household maximum, to class members without proof of purchase. A $30.00 household maximum will be paid for claims submitted with a proof of purchase. Proof of purchase means an itemized sales receipt originally generated by a retail seller showing the date and place of purchase, name of the product purchased, and the amount paid. Proof of purchase can be provided in the form of a photocopy or digital image file (e.g., PDF, JPG, TIF). WHAT ARE MY OPTIONS? You must submit a claim online by February 28, 2019 or by mail so that it is received (not merely postmarked) no later than February 28, 2019 to receive a payment. You can opt out of the class by February 28, 2019 and keep your right to bring your own case against P&G on the released claims. The settlement will release all claims related to Plaintiffs' contentions that P&G's marketing, advertising, and sale of the Wipes with the representations "flushable," "septic safe," and "safe for sewer and septic systems" were false or misleading. There is no release of claims for personal injury or property damage allegedly caused by use of the Wipes. You can also object to the settlement by February 28, 2019. For details on how to opt out, object, or to file a claim, please visit www.PettitWipeSettlement.com or contact the Claim Administrator. If you do nothing, you will not receive a payment and you will be bound by the decisions of the Court. COURT HEARING AND ATTORNEYS' FEES The Court will hold a hearing on March 28, 2019 at 1:30 p.m. to consider whether to approve the settlement. This date and time may change; visit www.PettitWipeSettlement.com for updated information. If the settlement is approved, the attorneys for the class will ask the Court for an award from P&G of up to $2,150,000 in fees, costs, and expenses, and class representative payments of $1,000 to $5,000 for each of the named plaintiffs. Note that the hearing date may change without further notice to you. You may attend the hearing, but you do not have to. Plaintiffs' Motion for Attorneys' Fees and Costs will be posted on the website after it is filed. or Contact: The Claim Administrator Pettit v. Procter & Gamble, c/o Claim Administrator PO Box 58280, Philadelphia PA 19102-8280 Telelphone: 1-833-305-3913 or Contact Plaintiffs' counsel: Gutride Safier LLP, 100 Pine Street, Suite 1250, San Francisco, CA 94111. The case name is Pettit et al. v. Procter & Gamble Company, U.S. District Court for the Northern District of California, Case No. 3:15-cv-02150-RS. [GN] RAMADA WORLDWIDE: Breeze Files Suit under ADA in New Jersey ----------------------------------------------------------- Ramada Worldwide Inc. is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Byron Breeze, Jr., on behalf of himself and all others similarly situated, Plaintiff v. Ramada Worldwide Inc., a foreign corporation, Defendant, Case No. 1:19-cv-00465 (D. N.J., January 14, 2019). Ramada Worldwide Inc. operates hotels in the United States and internationally. It offers accommodations. The company's amenities include swimming pools, on-site restaurants and lounges, conference and banquet facilities, a business center, meeting rooms (for meetings/conferences), and fitness facilities, as well as facilities for weddings, and special and group events.[BN] The Plaintiff is represented by: Erik Mathew Bashian Bashian & Papantoniou, P.C. 500 Old Country Road, Suite 302 Garden City, NE 11530 Tel: (516) 279-1554 Email: eb@bashpaplaw.com RAYOSUN LLC: Naiman Sues Over TCPA Violation -------------------------------------------- Sidney Naiman, individually and on behalf of all others similarly situated, Plaintiff, v. Rayosun, LLC, Freedom Solar Services, LLC, Freedom Forever, LLC and Does 1 through 10, inclusive, and each of them, Defendants, Case No. 3:19-cv-00256 (N.D. Cal., January 14, 2019) seeks damages and any other available legal or equitable remedies resulting from the illegal actions of Defendants, in negligently, knowingly, and/or willfully contacting Plaintiff on Plaintiff's cellular telephone in violation of the Telephone Consumer Protection Act, ("TCPA") and related regulations, specifically the National Do-Not-Call provisions, thereby invading Plaintiff's privacy. The Defendant used an "automatic telephone dialing system" to place its call to Plaintiff seeking to solicit its services. The Defendant contacted or attempted to contact Plaintiff from telephone numbers belonging to Defendant. Defendant's calls constituted calls that were not for emergency purposes. The Defendant did not possess Plaintiff's "prior express consent" to receive calls using an automatic telephone dialing system or an artificial or prerecorded voice on his cellular telephone. Yet, the Defendant continued to call Plaintiff in an attempt to solicit its services and in violation of the National Do-Not-Call provisions of the TCPA, says the complaint. Plaintiff, Sidney Naiman, is a natural person residing in Contra Costa County, California. Rayosun, LLC, Freedom Solar Services, LLC, Freedom Forever, LLC is a solar energy company. Doe Defendants 1 through 10, inclusive, are currently unknown to Plaintiff, who therefore sues such Defendants by fictitious names.[BN] The Plaintiff is represented by: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. Meghan E. George, Esq. Tom E. Wheeler, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St., Suite 780 Woodland Hills, CA 91367 Phone: 877-206-4741 Fax: 866-633-0228 Email: tfriedman@ toddflaw.com abacon@ toddflaw.com mgeorge@toddflaw.com twheeler@toddflaw.com SAN FRANCISCO, CA: Ct. Refuses to Certify Classes in Lil' Man Suit ------------------------------------------------------------------ The Hon. Jon S. Tigar denies the Plaintiff's motion for class certification in the lawsuit entitled LIL' MAN IN THE BOAT, INC. v. CITY AND COUNTY OF SAN FRANCISCO, et al., Case No. 3:17-cv-00904-JST (N.D. Cal.). Because neither of Lil' Man's proposed classes is sufficiently numerous to satisfy Rule 23(a)(1) of the Federal Rules of Civil Procedure, the motion for class certification is denied, Judge Tigar opines. Lil' Man sought to certify two classes. The first is the "Damages Class," consisting of "[a]ll entities that paid a fee for commercial vessel landings" at the North or South Dock between "February 23, 2015" and "the date of class certification." The second is the "Declaratory Relief Class," which includes "[a]ll entities that were asked [to] sign the 2016 Landing Rights Agreement" to make "commercial vessel landings" at the North or South Dock "from February 23, 2015 to the date of class certification." In this putative class action, Plaintiff Lil' Man in the Boat, Inc., complains against Defendants City and County of San Francisco, San Francisco Port Commission, and four of those entities' employees (collectively "Defendants") about a recently-amended landing agreement to use South Beach Harbor (the "2016 Landing Agreement") the Defendants require commercial vessels to sign. Lil' Man complains that the agreement "impose[s] excessive fees and charges and place[s] regulations and restrictions on vessels, with the greatest unjustified imposition on commercial charter vessels engaged in interstate commerce as a condition of landing at the Port," and that "[t]he fees charged by Defendants bear no relationship to the costs generated or to the services provided by Defendants to commercial vessels." Lil' Man contends the agreement is an unlawful infringement of its constitutional rights and asks the Court to declare the agreement unconstitutional and to order the Defendants to pay damages and restitution.[CC] SHOEBUY.COM: Online Footwear Firm Faces ADA Class Action -------------------------------------------------------- Shoebuy.com, Inc. is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Kevin Garey, on behalf of himself and all others similarly situated, Plaintiff v. Shoebuy.com, Inc., Defendant, Case No. 1:19-cv-00388 (S.D. N.Y., January 14, 2019). Shoebuy.com, Inc. engages in the online retail of women, men, and kids footwear, apparel, bags, and accessories in the United States and internationally. The company was founded in 1999 and is based in Boston, Massachusetts. As of December 30, 2016, Shoebuy.com, Inc. operates as a subsidiary of Jet.com, Inc.[BN] The Plaintiff is represented by: Jonathan Shalom, Esq. Shalom Law, PLLC 124-04 Metropolitan Avenue Kew Gardens, NY 11374 Tel: (516) 807-1748 Email: jshalom@jonathanshalomlaw.com SKAGIT REGIONAL: Court Extends Deadlines in McLean Suit ------------------------------------------------------- In the case, WILLA McLEAN and DANETTE RANGE, individually and on behalf of all others similarly situated, Plaintiffs, v. SKAGIT REGIONAL HEALTH and CASCADE VALLEY HOSPITAL, Defendants, Case No. 2:18-cv-01567-RSL (W.D. Wash.), Judge Robert S. Lasnik of the U.S. District Court for the Western District of Washington, Seattle, has issued an order extending deadlines to respond to the complaint and to file class certification motion. The Plaintiffs and the Defendants, through their undersigned counsel of record, have conferred regarding appropriate deadlines for the Defendants to answer or otherwise respond to the Complaint in the putative class action, and for the Plaintiffs to file their proposed class certification motion. The proposed dates reflect an extension of approximately five weeks for the Defendants to answer or otherwise respond to the Complaint, and for a corresponding extension of the Plaintiffs' class certification motion deadline, in light of the intervening holidays and the parties' interest in allowing time for initial discussions about the case. Without waiving any claims or defenses, the parties stipulate to and jointly request that Jan. 31, 2019 be set as the Defendants' new response date to the Complaint, and that June 3, 2019 be set as the new deadline for the Plaintiffs to move pursuant to Local Rule 23(i)(3) for a determination under Fed. R. Civ. P. 23(c)(1) as to whether the case is to be maintained as a class action. Accordingly, the parties agreed, and Judge Lasnik granted, that (i) the Defendants will file and serve their response to the Complaint by Jan. 31, 2019; and (ii) the Plaintiffs will file and serve their motion for a determination under Fed. R. Civ. P. 23(c)(1), as to whether the case is to be maintained as a class action, by June 3, 2019. A full-text copy of the Court's Jan 4, 2019 Order is available at https://is.gd/1z5OTD from Leagle.com. Willa McLean & Danette Range, individually and on behalf of all others similarly situated, Plaintiffs, represented by Abbas Kazerounian -- ak@kazlg.com -- KAZEROUNI LAW GROUP APC, Joshua Swigart -- josh@westcoastlitigation.com -- HYDE & SWIGART & Ryan Lee McBride -- ryan@kazlg.com -- KAZEROUNI LAW GROUP, APC. Skagit Regional Health & Cascade Valley Hospital, Defendants, represented by Tim J. Filer -- tim.filer@foster.com -- FOSTER PEPPER PLLC & Christopher G. Emch -- chris.emch@foster.com -- FOSTER PEPPER PLLC. SUNRISE SENIOR: Van Cleave Suit Alleges Labor Code Violations ------------------------------------------------------------- Christian Van Cleave, on behalf of himself and on behalf of all persons similarly situated v. Sunrise Senior Living Management, Inc. and Does 1-50 inclusive, Case No. 37-2018-00061960 (Cal. Super., December 7, 2018), is brought against the Defendants for failure to pay overtime wages in violation of the California Labor Code. The Plaintiff brings this class action on behalf of himself and a California Class in order to fully compensate the California Class for their losses incurred during the California Class period caused by the Defendant's uniform policy and practice which failed to lawfully compensate these employees for all their overtime worked. The Plaintiff was employed by the Defendant in California as a non-exempt employee entitled to overtime pay and meal and rest periods from July 2016 to November 2018. The Defendant Sunrise Senior Living Management, Inc. is a Virginia corporation and conduct substantial and regular business throughout California. The Defendant specializes in senior living communities which provide senior care services including assisted living, independent living and memory care in the US, Canada and the UK. [BN] The Plaintiff is represented by: Shani O. Zakay, Esq. ZAKAY LAW GROUP, APLC 5850 Oberlin Drive. Ste. 230A San Diego, CA 92121 Tel: (619)892-7095 Fax: (858) 404-9203 - and - Jean-Claude Lapuyade, Esq. JCL LAW FIRM, APC 3990 Old Town Avenue, Suite C204 San Diego, CA 92110 Tel: (619)599-8292 Fax: (619) 599-8291 TARGET CORP: Minn. App. Affirms Denial of In Forma Pauperis Bid --------------------------------------------------------------- The Court of Appeals of Minnesota issued an Opinion affirming the District Court's judgment denying Plaintiffs' Motion to Proceed In Forma Pauperis in the case captioned Roy A. Day on behalf of himself and as class action on behalf of others similarly situated, Appellant, v. Target Corporation, Respondent, Brian C. Cornell, Respondent, Jane Doe, Respondent, Starbucks Corporation, Respondent. No. A18-0611. (Minn. App.). Appellant Roy A. Day alleges the following: Appellant attempted to deposit five dollars in his Starbucks account at a Starbucks located inside a Target store. However, when he checked his receipt the next day, he discovered that only one dollar had been deposited. The Appellant believed this to be part of a larger scheme orchestrated by Target and Starbucks to enable cashiers to steal from consumers. The Appellant sought to proceed in a class action against Target and Starbucks, arguing three theories for recovery: fraud, negligence, and intentional infliction of emotional distress. He also filed a petition to proceed in forma pauperis. The district court denied appellant's in forma pauperis petition, finding that the action was frivolous. A district court shall allow a litigant to proceed in forma pauperis if it finds that the person meets financial eligibility requirements and the action is not frivolous. A claim is frivolous if it is without any reasonable basis in law or equity and cannot be supported by a good-faith argument for the modification of existing law. The Appellant argues that his action is not frivolous because he has sufficiently pleaded claims for fraud, intentional infliction of emotional distress, and negligence. To be sufficient, pleadings must contain a short and plain statement of each claim showing that appellant is entitled to relief. A claim of fraud must be pleaded with specificity that there was (1) a false representation of a past or existing material fact susceptible of knowledge, (2) made with knowledge of the falsity of the representation or made without knowing whether it was true or false, (3) with the intention to induce action in reliance on the representation, (4) the claimant relied upon the representation, (5) damages, and (6) the representation was the proximate cause of the damages. Even generously construed, appellant's claim of fraud fails. Appellant has failed to plead with specificity that there was a false statement, he relied upon that false statement, and his reliance resulted in the loss of his money. The Appellant has also failed to sufficiently plead a claim for intentional infliction of emotional distress. Intentional infliction of emotional distress has four elements: conduct that is extreme and outrageous, the conduct must be intentional or reckless, it must cause emotional distress, and the distress must be severe. Extreme and outrageous conduct is so atrocious that it passes the boundaries of decency and is utterly intolerable to the civilized community. Although appellant may conclude that the alleged theft of his four dollars is outrageous, such an occurrence is not utterly intolerable to the civilized community. In sum, the appellant has failed to plead a cause of action. Accordingly, the district court did not abuse its discretion in finding the action frivolous and in denying the petition to proceed in forma pauperis. A full-text copy of the Minn. App.'s December 24, 2018 Opinion is available at https://tinyurl.com/ya9m35sk from Leagle.com. Roy A. Day, Tarpon Springs, Florida, pro se appellant. Target Corporation, Minneapolis, Minnesota, respondent. Starbucks Corporation, Seattle, Washington, respondent. TIGER DIRECT: Garey Files Suit under ADA in S.D. New York --------------------------------------------------------- Tiger Direct, Inc. is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Kevin Garey, on behalf of himself and all others similarly situated, Plaintiff v. Tiger Direct, Inc., Defendant, Case No. 1:19-cv-00390 (S.D. N.Y., January 14, 2019). TigerDirect is an El Segundo, California-based online retailer dealing in electronics, computers, and computer components that caters to business and corporate customers.[BN] The Plaintiff is represented by: Jonathan Shalom, Esq. Shalom Law, PLLC 124-04 Metropolitan Avenue Kew Gardens, NY 11374 Tel: (516) 807-1748 Email: jshalom@jonathanshalomlaw.com TIO LEO: Huerta Suit Alleges Calif. Labor Code Violations --------------------------------------------------------- Constancio Huerta, individually and on behalf of all others similarly situated v. Tio Leo Management Group, LLC and Does 1 through 100 inclusive, Case No. 37-2018-00061890 (Cal. Super., December 7, 2018), is brought against the Defendants for California Labor Code violations. The Plaintiff alleges unfair business practices, and civil penalties stemming from Defendants' failure to provide meal periods, failure to authorize and permit rest periods, failure to pay minimum and straight time wages, failure to pay overtime wages, failure to timely pay all wages to terminated employees, and failure to furnish accurate wage statements. The Plaintiff worked as a bus boy for the Defendants from October 2017 to March 2018. The Defendant Tio Leo Management Group, LLC owns and operates several Mexican restaurants in San Diego County. [BN] The Plaintiff is represented by: Farzad Rastegar, Esq. RASTEGAR LAW GROUP, APC 22760 Hawthorne Blvd., Suite 200 Torrance, CA 90505 Tel: (310) 961-9600 Fax: (310) 961-9094 E-mail: farzad@rastegarlawgroup.com TOT BABY CORP: Violates Disabilities Act, Garey Suit Asserts ------------------------------------------------------------- The Tot Baby Corporation is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Kevin Garey, on behalf of himself and all others similarly situated, Plaintiff v. The Tot Baby Corporation, Defendant, Case No. 1:19-cv-00389 (S.D. N.Y., January 14, 2019). The Tot Baby Corporation retails products for tots, mamas, and mamas-to-be through its online store. It offers baby products, such as bath and potty products, bouncers and rockers, car seats, diapers, wipes, accessories, feeding bottles, feeding–solids, nursing products, personal care products, sleeping products, strollers and carriers, and teethers and pacifiers. The company also provides information and advice to mamas-to-be and mamas in the areas of fertility, pregnancy by month, birth prep, style and gear, health and safety, wellbeing, nursery products, feeding, sleeping, being mama, and tot life. The Tot Baby Corporation was incorporated in 2016 and is based in Dallas, Texas.[BN] The Plaintiff is represented by: Jonathan Shalom, Esq. Shalom Law, PLLC 124-04 Metropolitan Avenue Kew Gardens, NY 11374 Tel: (516) 807-1748 Email: jshalom@jonathanshalomlaw.com TRES AMIGOS: Flynn & Toroveci Suit Has Conditional Class Cert. --------------------------------------------------------------- In the class action lawsuit captioned KILEY FLYNN and GLORIA TOROVECI, et al., the Plaintiffs, vs. TRES AMIGOS, INC., a domestic corporation, et al., the Defendants, Case No. 2:18-cv-12426-MOB-DRG (S.D. Mich.), the Hon. Judge Marianne O. Battani entered an order on Jan. 3, 2019: 1. granting Plaintiffs' pre-discovery motion for conditional class certification and court-supervised notice to potential opt-in Plaintiffs Pursuant to 29 U.S.C. section 216(b); and 2. directing Parties to issue revised collective notice submitted to the collective members.[CC] Attorneys for Plaintiffs and the Putative Class: Kevin J. Stoops, Esq. Charles R. Ash, IV, Esq. SOMMERS SCHWARTZ, P.C. One Towne Square, Suite 1700 Southfield, MI 48076 Telephone: 248-355-0300 Facsimile: 248-746-4001 E-mail: kstoops@sommerspc.com crash@sommerspc.com Attorneys for Defendants: Matthew S. Disbrow, Esq. Sean F. Crotty, Esq. Jennifer L. Muse, Esq. HONIGMAN MILLER SCHWARTZ AND COHN LLP 2290 First National Building 660 Woodward Avenue Detroit, MH 48226-3506 Telephone: 313 465-7000 Facsimile: 313 465-7373 E-mail: scrotty@honigman.com mdisbrow@honigman.com jmuse@honigman.com TRUSTMARK NATIONAL: Sued for Overdraft Fees ------------------------------------------- The Island Packet reports that two women say in a lawsuit that a Mississippi-based bank is unfairly charging overdraft fees. The Clarion Ledger reports Cryesha McDonald of Waynesboro and Chantal Lewis of Jackson sued Trustmark National Bank this month in federal court in Jackson. Lawyers representing the women seek approval for a class-action lawsuit representing all the bank's customers. They allege Trustmark also charges surprise fees for using automated teller machines on a different bank's network. The suit claims Trustmark is unjustly enriching itself and breaking its account agreement with customers. Similar lawsuits have been filed against other banks. The Jackson-based bank, with $13 billion in assets, didn't immediately respond to a request for comment. Trustmark holds the largest share of bank deposits in Mississippi, and also has offices in Alabama, Florida, Tennessee and Texas.[GN] UNITED AIRLINES: Fails to Pay Wages for Short-Term Military Leave ----------------------------------------------------------------- ERIC WHITE, on behalf of himself and all others similarly situated, the Plaintiff, vs. UNITED AIRLINES, INC. and UNITED CONTINENTAL HOLDINGS, INC., the Defendants, Case No.: 1:19-cv-00114 (N.D. Ill., Jan. 7, 2019), seeks a declaration that Defendants violated the Uniformed Services Employment and Reemployment Rights Act (USERRA) by failing to pay Plaintiff and members of the proposed Class during their periods of short-term military leave. USERRA protects the rights of service members who take leaves of absence from their civilian employers to perform qualified military service. USERRA section 4316(b) requires military leave to be treated no less favorably than other comparable forms of leave with respect to the rights and benefits that employees receive during their leaves of absence. Since at least January 1, 2006, the Defendants violated this provision in two ways. First, the Defendants had a policy and practice of continuing to pay their employees' regular wages or salaries during certain leaves-of-absence (such as jury duty and sick leave), but not paying regular wages or salaries to employees when they take short-term military leave. By paying employees when they took jury duty leave, sick leave, and other comparable forms of non-military leave, the Defendants were required by USERRA to do the same for their employees who took short-term military leave. By failing to pay wages and salaries to military service members during their short-term military leave, while continuing to pay employees their wages or salaries during periods of jury duty, sick leave, and other comparable forms of non-military leave, the Defendants violated USERRA's mandate to treat military leave no less favorably than other comparable forms of non-military leave. Second, United failed to credit employees' imputed earnings associated with military leave or otherwise credit their military leave for the purpose of calculating such employees' profit sharing awards under the United Continental Holdings, Inc. Profit Sharing Plan. By doing so, United violated USERRA Sec. 4318, which requires all employee pension benefit plans -- like United's profit sharing plan -- to treat military service as continued service for an employer. In addition, because Defendants did not give profit-sharing credit to employees who took short- term military leave but gave credit for the purpose of the profit sharing plan to employees when they took comparable forms of non-military leave such as sick leave and jury duty, United violated USERRA Sec. 4316(b), which requires that employees who take military leave receive the same rights and benefits, including profit sharing, as employees who take comparable forms of non-military leave. As a result of these violations, Plaintiffs and other service members employed by Defendants received less compensation than they would have received if Defendants had provided them with paid leave during periods of short-term military leave. In addition, the Plaintiff and other service members who were participants in the Profit Sharing Plan received smaller profit sharing awards than they otherwise would have received if they had been paid during military leave or if the Profit Sharing Plan had credited their imputed earnings associated with their military leave for the purposes of calculating profit sharing awards, the lawsuit says. United Airlines, Inc., commonly referred to as United, is a major United States airline headquartered in Chicago, Illinois. United operates a large domestic and international route network, with an extensive presence in the Asia-Pacific region.[BN] Attorneys for Plaintiff: Peter Romer-Friedman, Esq. Paul W. Mollica, Esq. OUTTEN & GOLDEN LLP 601 Massachusetts Avenue NW Second Floor West Washington, DC 20001 Telephone: (202) 847-4400 E-mail: prf@outtengolden.com pwmollica@outtengolden.com - and - R. Joseph Barton, Esq. BLOCK & LEVITON LLP 1735 20th Street NW Washington, DC 20009 Telephone: (202) 734-7046 Facsimile: (617) 507-6020 E-mail: jbarton@blockesq.com - and - Thomas G. Jarrard, Esq. LAW OFFICE OF THOMAS G. JARRARD LLC 1020 N. Washington Street Spokane, WA 99201 Telephone: (425) 239-7290 Facsimile: (509) 326-2932 E-mail: tjarrard@att.net - and - Matthew Z. Crotty, Esq. CROTTY & SON LAW FIRM, PLLC 905 W. Riverside Avenue, Suite 404 Spokane, WA 99201 Telephone: (509) 850-7011 E-mail: matt@crottyandson.com UNITED COLLECTION: Placeholder Bid for Class Certification Filed ---------------------------------------------------------------- In the class action lawsuit captioned JOSIE RODRIGUEZ, Individually and on Behalf of All Others Similarly Situated, the Plaintiff, v. UNITED COLLECTION BUREAU, INC., the Defendant, Case No. 2:19-cv-00018-JPS (E.D. Wisc.), the Plaintiff asks the Court for an order certifying classes in this case, appointing the Plaintiff as class representative, and appointing Ademi & O'Reilly, LLP as Class Counsel, and for such other and further relief as the Court may deem appropriate. The Plaintiff further asks that the Court stay this class certification motion until an amended motion for class certification is filed, and that the Court grant the parties relief from the local rules' automatic briefing schedule and requirement that Plaintiff file a brief and supporting documents in support of this motion. 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. Fulton Dental, LLC v. Bisco, Inc., 860 F.3d 541, 545-46 (7th Cir. 2017).[CC] Attorneys for Plaintiff: Mark A. Eldridge, Esq. John D. Blythin, 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 UNITEDHEALTH GROUP: Fights Suit Over Underpaying Health Services ---------------------------------------------------------------- Morgan Haefner, writing for Becker's Hospital Review, reports that UnitedHealth Group filed a motion to dismiss a class-action lawsuit claiming the health insurer unlawfully underpaid reimbursements for mental healthcare, according to The Recorder. Here are four things to know: 1. The class-action lawsuit filed against UnitedHealth's insurance and behavioral health businesses accuses the companies of underpaying certain psychotherapy services provided by master's-level counselors and psychologists, but not physicians. 2. In its motion to dismiss the lawsuit, UnitedHealth said the allegations go against "the common sense practice that health plans reimburse healthcare providers with different training, experience, and licensure at different rates. Contrary to plaintiff's suggestion, it is not unlawful for [UnitedHealth defendants] to pay a social worker less than a licensed physician would be paid for the same service," according to the filing, which was obtained by The Recorder. 3. The original lawsuit also accused UnitedHealth of violating the ACA, which doesn't allow discriminatory coverage for psychologists and master's-level counselors who act within the limits of their state licenses, according to The Recorder. However, in its motion for dismissal, UnitedHealth argued that the allegation lacked standing to sue under the ACA. 4. On Dec. 11, U.S. District Judge Haywood Gilliam Jr. granted the parties' request to extend briefing deadlines in the case. A hearing is set for March 21 to review UnitedHealth's motion to dismiss the lawsuit, according to The Recorder.[GN] US AVIATION SERVICES: Haralson Asks for Initial Nod of Class Deal ----------------------------------------------------------------- The Plaintiff in the lawsuit captioned JAMES HARALSON, on behalf of himself and others similarly situated v. U.S. AVIATION SERVICES CORP., et al., Case No. 3:16-cv-05207-JST (N.D. Cal.), moves the Court for an order granting preliminary approval of the STIPULATION FOR CLASS ACTION SETTLEMENT he reached with the Defendant. Specifically, the Plaintiff moves for an order to: 1. grant preliminary approval of the terms of the Agreement as fair, reasonable and adequate under Rule 23(e) of the Federal Rules of Civil Procedure, including the amount of the settlement, the amount of distributions to class members, the procedure for giving notice to class members, the procedure for opting out of the settlement, and the amounts allocated to the enhancement payments and attorney's fees and costs; 2. preliminarily certify for settlement purposes the Settlement Class described in the Agreement as follows: All current and former non-exempt airplane cabin cleaners who performed services for USAS in California during the Class Period (August 9, 2012 through to Preliminary Approval); 3. appoint the Plaintiff as representative for the Settlement Class; 4. appoint Setareh Law Group as counsel for the Settlement Class; 5. approve the use of ILYM Group as the settlement administrator; 6. direct that notice issue to members of the Settlement Class as provided in the Agreement; and, 7. schedule a final approval and fairness hearing on a date approximately 160 days after preliminary approval (August 15, 2019 is proposed) to consider whether the Agreement should be finally approved as fair, reasonable and adequate under Rule 23(e) of the Federal Rules of Civil Procedure and to rule on the motion for attorney's fees, costs and enhancement award submitted by the Plaintiff. According to the Motion, the Plaintiff negotiated a settlement that resolves claims and recovers money for approximately 550 Settlement Class Members. The Plaintiff asserts that this settlement is fair and reasonable, especially given the claims and the potential defenses to them and to class certification. The Court will commence a hearing on March 7, 2019, at 2:00 p.m., to consider the Motion.[CC] The Plaintiff is represented by: Shaun Setareh, Esq. H. Scott Leviant, Esq. SETAREH LAW GROUP 9454 Wilshire Boulevard, Suite 907 Beverly Hills, CA 90212 Telephone: (310) 888-7771 Facsimile: (310) 888-0109 E-mail: shaun@setarehlaw.com scott@setarehlaw.com VIDA SHOES: Website not Accessible to Blind People, Slade Says -------------------------------------------------------------- LINDA SLADE, Individually and as the representative of a class of similarly situated persons, the Plaintiff, vs. VIDA SHOES INTERNATIONAL, INC. d/b/a Jambu & Co., the Defendants, Case No. 1:19-cv-00146-LGS (S.D.N.Y., Jan. 7, 2019), alleges that Jambu failed to design, construct, maintain, and operate its website at http://www.jambu.comto be fully accessible to and independently usable by Plaintiff and other blind or visually-impaired persons, in violation of Plaintiff's rights under the Americans with Disabilities Act (the "ADA"). According to the complaint, the Plaintiff is a visually-impaired and legally blind person who requires screen-reading software to read website content using his computer. Plaintiff uses the terms "blind" or "visually-impaired" to refer to all people with visual impairments who meet the legal definition of blindness in that they have a visual acuity with correction of less than or equal to 20 x 200. Some blind people who meet this definition have limited vision; others have no vision. Based on a 2010 U.S. Census Bureau report, approximately 8.1 million people in the United States are visually impaired, including 2.0 million who are blind, and according to the American Foundation for the Blind’s 2015 report, approximately 400,000 visually impaired persons live in the State of New York. Vida Shoes International, Inc. designs, produces, and markets footwear products. The Company sells its products through departmental stores and specialty shops.[BN] Attorneys for Plaintiff and the Class Dan Shaked, Esq. SHAKED LAW GROUP, P.C., 44 Court Street, Suite 1217 Brooklyn, NY 11201 Telephone: (917) 373-9128 E-mail: ShakedLawGroup@gmail.com VIRGINIA: Court Orders Enforcement of Scott Suit Agreement ---------------------------------------------------------- In the case, CYNTHIA B. SCOTT, ET AL., Plaintiffs, v. HAROLD W. CLARKE, ET AL., Defendants, Case No. 3:12-cv-00036 (W.D. Va.), Judge Norman K. Moon of the U.S. District Court for the Western District of Virginia, Charlottesville Division, ordered the enforcement of the Settlement Agreement, and discharged the show cause order regarding contempt. The case is an Eighth Amendment class action concerning the long-term failure to provide adequate medical care to inmates at the Fluvanna (Va.) Correctional Center for Women ("FCCW"). FCCW is Virginia's primary women's medical prison. The present Defendants are officials employed by the Virginia Department of Corrections ("VDOC"). The Plaintiffs filed the underlying lawsuit in 2012. Various portions of their complaint survived dispositive motion practice. The Court also certified a class of inmates seeking medical treatment at FCCW. After two years of litigation and days before a scheduled bench trial, the parties reached a settlement in principle. They spent the next 10 months hashing out the details. On Sept. 15, 2015, the parties jointly filed what the docket reflects as a consent motion to approve consent judgment. The substance of the filing, however, referred to "preliminary approval of the settlement. After notice to the class, the Court held a fairness hearing where it received testimony about the propriety of the proposed Settlement Agreement, heard comments from objectors, and entertained oral argument. The Plaintiffs subsequently filed -- with the Defendants' approval -- proposed findings of fact and conclusions of law urging final approval of the settlement. The parties also submitted a stipulated proposed final order that would (1) approve the Settlement Agreement, (2) declare the Settlement Agreement implemented as of the date of the final order, and (3) retain jurisdiction with the Court to ensure implementation of the Settlement Agreement and the Court's power to preside over such further proceedings as may be necessary or appropriate to enforce its terms and conditions. On Feb. 5, 2016, the Court entered findings of fact and conclusions of law. It reasoned that the Settlement Agreement was proper under both Rule 23 and the Prison Litigation Reform Act, and it found that the objectors' concerns did not counsel against final approval of the Settlement Agreement. The Court, in summarizing the Settlement Agreement, referenced the Plaintiffs' ability to enforce the settlement, seek contempt sanctions, or both. That same day, the Court entered its final judgment order. The order granted final approval of the Settlement Agreement. No party appealed. Just over a year-and-a-half later, the Plaintiffs filed their motion to show cause why the Defendants should not be held in contempt for failing to abide by the terms of the Settlement Agreement -- what they called the Court's "consent judgment" of Feb. 5, 2016. The Court set the matter for a week-long bench trial in June 2018. In December 2017, after the parties briefed the motion, the Court adopted the parties' joint request for a discovery plan, which set the discovery deadline at May 1, 2018. For the next several months, the volume and intensity of discovery rivaled that of the hardest-fought merits litigation. The presiding magistrate judge held several conferences and hearings to resolve various motions and discovery matters, and he provided a few modest accommodations for the May 1st discovery deadline to allow the parties to complete discrete discovery tasks. Meanwhile, the Court, upon inquiry by the parties, indicated it would rule on the motion to show cause after receiving the Plaintiffs' prima facie evidence at the June trial. As the trial date approached, the parties submitted numerous Daubert motions, motions in limine, and trial briefs. The Defendants even filed a motion for summary judgment, less than two weeks before the trial date. Finally, trial arrived. At the close of the Plaintiffs' evidence, the Court granted the motion to show cause, concluding that the prima facie case has been made there's certainly a prima facia case of at least to some extent that the settlement has not been carried out. At the time, the Defendants did not argue that contempt was improper for lack of an operative injunctive order to enforce. After years of litigation, the parties reached a detailed settlement agreement to provide for constitutionally adequate medical care at FCCW. On the parties' request, the Court preliminarily approved the Settlement Agreement. In February 2016, the Court entered a final judgment order that conclusively approved the agreement, declared it operative, and retained jurisdiction to enforce it. The agreement provides similarly. Judge Moon finds that, in some respects, the Defendants have breached the Settlement Agreement. He finds that over six years ago, women at FCCW filed the lawsuit, seeking a remedy for pervasive constitutionally deficient medical care. Their quest continues. Some women have died along the way. But the case has survived because the Defendants have upheld neither their Eighth Amendment obligations nor the Settlement Agreement they reached to effectuate those obligations. Accordingly, he ordered the enforcement of the Settlement Agreement, and discharged the show cause order regarding contempt. He directed the Clerk is directed send a copy of these findings and conclusions to the counsel. A full-text copy of the Court's Jan 2, 2019 Findings of Fact is available at https://is.gd/fj16XY from Leagle.com. Cynthia B. Scott, A prisoner residing at Fluvanna Correctional Center for Women, Individually, and on behalf of all others similarly situated & Toni Hartlove, A prisoner residing at Fluvanna Correctional Center for Women, Individually, and on behalf of all others similarly situated, Plaintiffs, represented by Adeola Oluremilekun Ogunkeyede -- adeola@justice4all.org -- Legal Aid Justice Center, pro hac vice, Elizabeth Wilson Hanes -- elizabeth@clalegal.com -- Consumer Litigation Associates, PC, Kimberly Anne Rolla -- kim@justice4all.org -- Legal Aid Justice Center, Leonard Anthony Bennett , Consumer Litigation Associates, Mary Catherine Bauer, Southern Poverty Law Center, Shannon Marie Ellis -- shannon@justice4all.org -- Legal Aid Justice Center, Abigail Turner -- abigail@justice4all.org -- Legal Aid Justice Center, Andrew Joseph Guzzo, Kelly & Crandall, PLC, Angela A. Ciolfi -- angela@justice4all.org -- Legal Aid Justice Center, Brenda Erin Castaneda -- brenda@justice4all.org -- Legal Aid Justice Center, Casey Shannon Nash, Kelly & Crandall, PLC, Kristi Cahoon Kelly, Kelly & Crandall, PLC, Philip Jerome Fornaci, Washington Lawyers Committee for Civil Rights and Urban Affairs, pro hac vice & Theodore Augustus Howard -- thoward@wileyrein.com -- Wiley Rein LLP, pro hac vice. Melissa Atkins, Plaintiff, represented by Angela A. Ciolfi, Legal Aid Justice Center & Kimberly Anne Rolla, Legal Aid Justice Center. Armor Correctional Health Services, Inc., Movant, represented by Edward J. McNelis, III, Sands Anderson, PC. Harold W. Clarke, Director, Virginia Department of Corrections & A. David Robinson, Chief of Corrections Operations, Virginia Department of Corrections, Defendants, represented by Edward J. McNelis, III -- emcnelis@sandsanderson.com -- Sands Anderson, PC, Elizabeth Martin Muldowney -- EMuldowney@sandsanderson.com -- Sands Anderson, PC, John Michael Parsons, Office of the Attorney General of Virginia, Ruth Thomas Griggs -- RGriggs@sandsanderson.com -- Sands Anderson, PC, Diane Marie Abato, Office of the Attorney General, James Milburn Isaacs, Jr., Office of the Attorney General of Virginia, John Chadwick Johnson -- jjohnson@faplawfirm.com -- Frith Anderson & Peake PC, Kate Elizabeth Dwyre, Office of the Attorney General, Katherine Cabell Londos -- klondos@faplawfirm.com -- Frith Anderson & Peake PC, Nathan Henry Schnetzler , Frith Anderson & Peake PC & Richard Carson Vorhis, Office of the Attorney General. Stephen Herrick & Eric Aldridge, Defendants, represented by Nathan Henry Schnetzler, Frith Anderson & Peake PC. WALKERHEALTHCAREIT LLC: Debra Bey Suit Transferred to S.D. Texas ---------------------------------------------------------------- A case, DEBRA BEY, individually and on behalf of all others similarly situated, the Plaintiff, vs. WALKERHEALTHCAREIT, LLC, WALKERSEARCHGROUP, LLC, ENCORE HEALTH RESOURCES, LLC, TIFFANY WALKER and GREGORY WALKER, the Defendants, Case No. 2:16-cv-01167, was transferred from the U.S. District Court for the Southern District of Ohio, to the U.S. District Court for Southern District of Texas (Houston) on Jan 7, 2019. The Southern District of Texas Court Clerk assigned Case No. 4:19-cv-00060 to the proceeding. The case is assigned to the Hon. Judge Nancy F. Atlas. The Plaintiff contends that Defendants, jointly and severally, violated the Fair Labor Standards Act of 1938, and the Ohio Minimum Fair Wage Standards, by knowingly suffering and/or permitting Representative Plaintiff and the putative Class members to work in excess of 40 hours per week without properly compensating them at an overtime premium rate for these overtime hours. Walkerhealthcareit, LLC is in the executive placement business.[BN] Attorneys for Plaintiff: James Papakirk, Esq. FLAGEL & PAPAKIRK LLC 50 E Business Way, Ste. 410 Cincinnati, OH 45241 Telephone: (513) 984-8111 Facsimile: (513) 984-8118 - and - Andrew Ficzko, Esq. 205 N Michigan Aveue, Suite 2560 Chicago, IL 60601 Telephone: (312) 233-1550 Facsimile: (312) 233-1560 - and - Gregory E. Hull, Esq. Flagel & Papakirk LLC 50 E Business Way, Suite 410 Cincinnati, OH 45241 Telephone: (513) 984-8111 Facsimile: (513) 984-8118 - and - James B. Zouras, Esq. Ryan F. Stephan, Esq. STEPHAN ZOURAS, LLP 205 N. Michigan Ave., Suite 2560 Chicago, IL 60601 Telephone: (312) 233-1550 Facsimile: (312) 233-1560 Attorneys for Gregory Walker, Tiffany Walker, WalkerSearchGroup, LLC, and WalkerHealthCareIT, LLC: Colin D Dougherty, Esq. John J Haggerty, Esq. FOX ROTHSCHILD LLP 10 Sentry Parkway, Suite 200 Blue Bell, PA 19422-3001 Telephone: (610) 397-6500 E-mail: cdougherty@foxrothschild.com Attorneys for Encore Health Resources, LLC: Katharine C. Weber, Esq. Matthew Richard Byrne, Esq. JACKSON LEWIS LLP PNC Center, 26th Floor 201 E. Fifth Street Cincinnati, OH 45202 Telephone: (513) 898-0050 Facsimile: (513) 898-0051 WELLS FARGO: Bid to Vacate Arbitral Award in Tucker Suit Denied --------------------------------------------------------------- In the case, WELLS FARGO ADVISORS LLC, Petitioner, v. REAGAN TUCKER, BENJAMIN DOOLEY, and MARVIN GLASGOLD, Respondents (S.D. N.Y.), Judge Paul A. Engelmayer of the U.S. District Court for the Southern District of New York denied Wells Fargo's motion to vacate the arbitral award. Before the Court is a petition by Wells Fargo to vacate an arbitrator's partial final clause construction arbitral award which held that the parties to an arbitration agreement consented there to class-wide arbitration. The Award arises out of a dispute in which three former Wells Fargo financial advisors, -- Reagan Tucker, Benjamin Dooley, and Marvin Glasgold -- claim that Wells Fargo failed to pay them, and a putative class and collective, overtime pay required by the Fair Labor Standards Act ("FLSA"), and New York Labor Law ("NYLL"). Each Respondent is party to a New Financial Advisor Training Agreement which, with limited exceptions, provides for the arbitration of disputes. Having failed in its chosen arbitral forum to limit the scope of the arbitral proceedings authorized by the Agreement to individual (non-class) proceedings, Wells Fargo now asks this Court to intervene. It asks, inter alia, that the Court vacate the arbitrator's construction of the Agreement and "[i]ssue an Order directing Respondents that they must arbitrate their claims" individually, on a non-class basis. Dkt. 1. The Respondents were all financial advisors working at Wells Fargo branch offices in either New York or Texas. In 2011 and 2013, Respondents and Wells Fargo entered into employment agreements. Each Agreement contains an alternate dispute resolution provision that requires the parties to resolve any dispute, with certain exceptions, through arbitration. Each Agreement provides for mandatory arbitration before either the Financial Industry Regulatory Authority ("FINRA") or the American Arbitration Association ("AAA"), pursuant to its May 1, 1993 rules. The Respondents claim that Wells Fargo, in violation of the FLSA and NYLL, failed to pay them for overtime work. They assert that Wells Fargo, per policy, did not correctly tabulate the hours worked by employees like the Respondents in its Financial Advisor Training Program, in that it failed to use appropriate forms of wage statements for such employees and Misclassified employees in the Apprentice Phase of the Program as being exempt from overtime requirements. The Respondents sought to pursue their claims on a class-wide basis before FINRA. Rule 13204 of the FINRA Code of Arbitration Procedure for Industry Disputes, however, prohibits FINRA from presiding over class arbitration actions. For that reason, FINRA declined to hear the dispute. The arbitration, therefore, has proceeded before the AAA. On Sept. 30, 2015, Wells Fargo filed an action in the District seeking a stay of the arbitration to the extent brought on a class basis and an order compelling arbitration to proceed on an individual basis. In Tucker, Judge Caproni, to whom that action was assigned, denied Wells Fargo's application. She held that, under the Agreement, it was for the arbitrator, not a court, to decide whether the Agreement provided for class arbitration. Wells Fargo appealed that decision. On March 7, 2018, the Second Circuit affirmed. It held that the Agreement clearly and unmistakably expresses the parties' intent to let an arbitrator decide whether they agreed to authorize class arbitration. On June 28, 2018, the arbitrator assigned to the Tucker arbitration, Edith N. Dineen, issued a Partial Final Clause Construction Award, the decision at issue. She construed the Agreement to allow the Respondents to pursue class claims in this arbitration. On July 27, 2018, Wells Fargo filed a petition in the Court to vacate the Arbitrator's clause construction award insofar as it construed the Agreement to allow the Respondents to permit class arbitration, and an accompanying memorandum of law. On Aug. 23, 2018, the Respondents filed a memorandum of law in opposition to the motion to vacate. On Sept. 6, 2018, Wells Fargo filed a reply. Wells Fargo makes two broad arguments. First, it contends that the Arbitrator exceeded her authority by (1) allowing an agreement to permit the class arbitration to be inferred, rather than textually explicit, and, ostensibly, requiring a party seeking to preclude the class arbitration to include a provision explicitly waiving the class arbitration; (2) in interpreting the Agreement, considering evidence beyond the four corners of the Agreement; and (3) issuing a clause construction award that, ostensibly, binds the absent members of the purported class. Second, Wells Fargo argues that the Arbitrator manifestly disregarded the law in reaching her decision, specifically by ignoring holdings of the Supreme Court in Stolt-Nielsen. The Court addresses each argument in turn. Judge Engelmayer finds that because the Arbitrator did not require an express waiver to defeat a construction of the Agreement to permit class arbitration, Wells Fargo's claim that the Arbitrator exceeded her authority in so requiring necessarily fails. Wells Fargo does not cite any controlling law that precluded the interpretive approach. Quite the contrary, the Arbitrator anchored her approach in substantial case law. Next, he finds that Wells Fargo has failed to show that any errors in the Arbitrator's construction of the Agreement support vacatur. The broader response to Wells Fargo's critiques of the Arbitrator's construction of the parties' agreement is this: Whether the Arbitrator's construction or Wells Fargo's would prevail on de novo review is beside the point. Provided that the arbitrator recited a contractual basis, persuasive or not, for the construction she reached, that decision may not be overturned. Wells Fargo next attacks the Award by arguing that the Arbitrator exceeded her authority by purporting to issue an award which extends to absentee class members. The Judge finds that the argument also fails. The issue there involved the arbitral certification of an opt-out class, such that members of that class who had not affirmatively opted out stood to be bound by the arbitrator's decision. The Award is explicit that it does not prejudge whether class certification would be appropriate. At this earlier procedural point, at which the sole issue is whether the parties' Agreement permits class treatment, ock v. Sterling Jewelers, Inc. is of no moment. Finally, far from manifestly disregarding clearly applicable law, the Arbitrator identified the relevant law, parsed it thoughtfully, and endeavored to apply it with considerable care. The Judge, therefore, rejects Wells Fargo's claim of manifest disregard as baseless. For the foregoing reasons, in construing the Agreement to permit class arbitration, the Arbitrator neither exceeded her powers nor manifestly disregarded the law. Accordingly, Judge Engelmayer denied Wells Fargo's motion to vacate the arbitral Award. He respectfully directed the Clerk of Court to terminate the motions pending at Dkts. 1 and 2 and to close the case. A full-text copy of the Court's Jan 2, 2019 Opinion and Order is available at https://is.gd/cAz3nG from Leagle.com. Wells Fargo Advisors LLC, Petitioner, represented by Ashley Jean Hale, Esq. -- ashley.hale@morganlewis.com -- and Kenneth Joseph Turnbull, Esq. -- kenneth.turnbull@morganlewis.com -- MORGAN, LEWIS & BOCKIUS LLP. Reagan Tucker, Benjamin Dooley & Marvin Glasgold, Respondents, represented by Paul W. Mollica -- pwm@outtengolden.com -- Outten & Golden LLP, Justin Mitchell Swartz -- jms@outtengolden.com -- Outten & Golden, LLP & Paolo Chagas Meireles -- pmeireles@shavitzlaw.com -- Shavitz Law Group, P.A. WISCONSIN: Bender Suit Alleges Civil Rights Violation ----------------------------------------------------- A class action lawsuit has been filed against the State of Wisconsin. The case is styled as Joseph W. Bender, Jeremy W. Stroebel, Thomas G. White, Jr., Tyler S. Holman, Tyler J. Hood and Chelsea N. Cadotte, on behalf of herself and all others similarly situated, Plaintiffs v. State of Wisconsin, Anthony S. Evers, in his official capacity as Governor of Wisconsin and Kelli S. Thompson, in her official capacity as Wisconsin State Public Defender, Defendants, Case No. 3:19-cv-00029 (W.D. Wis., January 11, 2019). The docket of the case states the nature of suit as violation of civil rights. Wisconsin is a Midwestern U.S. state with coastlines on 2 Great Lakes (Michigan and Superior) and an interior of forests and farms. Milwaukee, the largest city, is known for the Milwaukee Public Museum, with its numerous re-created international villages, and the Harley-Davidson Museum, displaying classic motorcycles. Several beer companies are based in Milwaukee, and many offer brewery tours.[BN] The Plaintiffs are represented by: H. Craig Haukaas, Esq. Haukaas Law Office, S.C. 101 West Main St., Suite 201 Ashland, WI 54806 Tel: (715) 685-1001 Fax: (888) 242-2099 Email: craig@haukaaslaw.com - and - Thomas Blake Gross, Esq. Haukaas Law Office, S.C. 200 Chapple Avenue Ashland, WI 54806 Tel: (715) 685-1001 Fax: (888) 242-2099 Email: blake@haukaaslaw.com YUMI KIM SHOP: Women's Clothing Line Faces ADA Class Action in NY ----------------------------------------------------------------- Yumi Kim Shop Inc. is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Kevin Garey, on behalf of himself and all others similarly situated, Plaintiff v. Yumi Kim Shop Inc., Defendant, Case No. 1:19-cv-00391 (S.D. N.Y., January 14, 2019). Yumi Kim is a women's clothing line based in New York City, United States, designed by American fashion designer Kim Phan.[BN] The Plaintiff is represented by: Jonathan Shalom, Esq. Shalom Law, PLLC 124-04 Metropolitan Avenue Kew Gardens, NY 11374 Tel: (516) 807-1748 Email: jshalom@jonathanshalomlaw.com ********* 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 2019. 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 ***