/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/190124.mbx C L A S S A C T I O N R E P O R T E R Thursday, January 24, 2019, Vol. 21, No. 18 Headlines 410LEX INC: Boccio Sues Over Unpaid Overtime Compensation ACCOUNTS RECEIVABLE: Bellenger Sues Over Auto-dialled Calls ADT LLC: John Snow Seeks Minimum & Overtime Wages for Sales Reps ALBANESE ENTERPRISES: Epps Seeks to Recover Minimum and OT Wages AMERICAN FINANCIAL: Arbitration Bid Denial in Pichardo Suit Flipped AMPLIFY ENERGY: Thompson FLSA Suit Dismissed Without Prejudice ASSET RECOVERY: Ct. Withholds Ruling on Arbitration Bid in Vandehey AUROBINDO PHARMA: Duffy Sues Over Carcinogen in Hypertension Meds AVENUE THERAPEUTICS: Bushansky Files Suit Over Sale to InvaGen AXOGEN INC: Faces Einhorn Securities Class Suit in M.D. Florida BAYVIEW LOAN: Court Won't Dismiss R. Hackett's TILA Suit BDO USA: McIntire et al Suit Transferred to S.D. New York BENIHANA NATIONAL: Bid to Remand Ramirez Suit to State Court Denied BOFI HOLDING: Grigsby Appeals Mandalevy Suit Dismissal to 9th Cir. BOSWORTH PLACE: Never Pays Overtime Under FLSA, Dalfior Suit Says CAMPBELL SOUP: Court Denies Bid to Remand Schwartz ICFA Suit CANADA: $135MM Suit Accuses RCMP of Failing to Protect New Recruits CANARY: Facing Class-Action Lawsuit Over Monthly Monitoring Fee CIT BANK: Court Junks Tortious Interference Claims in M. Gray Suit CLEAR MANAGEMENT: Court Denies Summary Ruling Bid in Morrison Suit CLUBHOUSE DINER: Class Certification Sought in Viscomi Suit CMRE FINANCIAL: Accused by Bonaventure of Calling Without Consent COACH INC: Vaughn's Bid to Certify Denied; Jan. 29 Case Conf. Set COMMONWEALTH FINANCIAL: Davis Sues Over Deceptive Debt Collection CORELOGIC INC: Stevens Files Petitions for Writ of Certiorari CREDIT BUREAU: Court Denies Bid to Dismiss Bassett FDCPA Suit DENTSPLY SIRONA: Levi & Korsinsky Files Class Actions Lawsuit DIAMOND RESORTS: Delara Action to Recover Unpaid Overtime DISKOLAB LLC: Accused by Rodriguez Class Suit of Violating TCPA FAITH AND FREEDOM COALITION: Pickett Hits SMS Ad Blasts FCA US: Court Recommends Partial Dismissal of Canfield Suit FINISAR CORP: Davis Files Securities Suit Over Sale to II-VI Inc. FORD MOTOR: Court Dismisses Wozniak Suit over Defective Lug Nuts FTS USA: Eleventh Circuit Appeal Filed in Estrada FLSA Suit GENMARK DIAGNOSTICS: Fails to Pay Overtime Wages, Fulinara Says GEORGETOWN UNIVERSITY: Bid to Dismiss Wilcox ERISA Suit Granted GOD'S MOVING: Kenneth Woodson Seeks Minimum & OT Wages GOLDMAN SACHS: Bronstein Gewirtz Files Securities Class Action GOLDWATER BANK: Fabricant Sues Over Illegal Telemarketing Calls HOLTGER BROS: Court Conditionally Certifies Class of Workers HOME ATTENDANT VENDOR: Home Aides Claim Unpaid Overtime Wages INTERNATIONAL PAPER: Arroyo Moves to Certify Class and Subclasses JA SOLAR: Labaton Sucharow Files Class Action Lawsuit JEFFERSON PARISH, LA: Partial Summary Judgment in Mellor Reversed JOY GLOBAL: Duncan Class Settlement Has Final Court Approval KPMG LLP: Court Won't Certify for Interlocutory Appeal in Jones KROGER CO: Brooks Sues for Invasion of Privacy L.L. BEAN: Court Dismisses Berger Suit Without Prejudice MADISON COUNTY, MS: Court Won't Certify MCSD Discrimination Suit MARRIOTT INT'L: Failed to Secure Private Info, Durant Sues Says MERIDIAN PAIN: Sent Unsolicited Text Messages, Alvarez Suit Says MIDWAY IMPORTING: Court Enters Final Judgment in Prudencio Suit MONEY STORE: Court Refuses to Reconsider Asberry Suit Dismissal NANO: Faces Fabian Suit Over Lost Investment NATURAL HEALTH: Sued by Kauffman Over Pyramid Scheme in China NCAA: Staggs' Injury Suit Transferred to N.D. Ill. NEVADA GOLD: D'Arcy Wants to Halt Maverick Merger, Seeks Financials NEVADA GOLD: Monteverde & Associates Files Class Action Lawsuit OPKO HEALTH: Adsport Securities Suit Transferred to S.D. Fla. OVERTON RUSSELL: Luci Appeals Consumer Suit Ruling to 2nd Circuit PACIFIC BIOSCIENCES: Speiser Balks at Merger Deal with Illumina PARTNERS REIT: Gets Court Approval of Settlement of Class Action PERSONAL-TOUCH: Cucinotta Hits Misclassification, Claims Overtime PHELAN HALLINAN: Pa. Super. Affirms Demurrer Order in Johnson Suit PLAINS ALL: Santa Barbara County Property Owners File Class Action PONTILLO'S PIZZERIA: Ragaglia Seeks Overtime Pay, Hits Tip Pool PROGRESSIVE PREFERRED: Martinez et al. Suit Moved to D.N.M. RECIPES INC: Denied Workers Overtime Pay, Withheld Tips, Says Fabry RESURGENT CAPITAL: Collazo Suit Asserts FDCPA Violation RUSS DARROW: Court Consolidates 2 FLSA Suits SANTA CLARA, CA: Summary Judgment in Estorga FLSA Suit Partly OK'd SC DATA: 8th Cir. Vacates Schumacher FCRA Suit Settlement Approval SCOTT SEMPLE: Judge Rejects Efforts By State To Dismiss Suit SELDAT INC: Misclassified Security Guards, D'Carpio Alleges SIGMA TRANSPORTATION: Johnson Seeks to Recover Minimum & OT Wages SMILEMAKERS INC: S. Wainess' TCPA Suit Remains in Dist. Court SOLARIS HEALTHCARE: Swinson Claims Overtime for Hrs. Worked Over 40 SOUTH CAROLINA: Suit Settlement Calls for Testing Hep C Testing SOUTH FLORIDA COURIER: Da Silva Files Labor Class Suit in NY SSC KERRVILLE: Can't Compel Arbitration in Passmore FLSA Suit STARBUCKS CORP: Court Dismisses Amster Suit Without Prejudice STEPHEN EINSTEIN: Court Denies Bid to Dismiss Somerset FDCPA Suit STITCH FIX: Faces Fischler Suit Over Blind-Inaccessible Web site SWEPI LP: 6th Cir. Compels Arbitration in Ohio Landowners' Suit TASKRABBIT INC: Diaz Sues Over Non-Blind Friendly Website TD AMERITRADE: Judge Denies Class Action Certification TEMPLE UNIVERSITY: Reaches $5.4MM Settlement in Students' Suit TENARIS SA: Faces Securities Class Action Lawsuit TESARO INC: Scarantino Balks at Merger Deal with GlaxoSmithKline TOYOTA AUSTRALIA: Class Action Over DPF Issues Being Considered UNION PACIFIC: Ct. Won't Certify Classes in Landing Agreement Suit UNION PACIFIC: Settlement in Fowler Suit Has Final Approval UNITED STATES: Prison Employees Hit Gov't Shutdown USAA FEDERAL: Faces Eiess Class Suit Over Illegal NSF Fees WELLS FARGO: Court Approves $480MM Settlement WORLDWIDE TILE: Ayala Sues Over Unpaid Overtime Wages WYNDHAM HOTEL: Website Violates Disabilities Act, Breeze Claims XPO LOGISTICS: Bernstein Liebhard Files Class Action Lawsuit XPO LOGISTICS: Robbins Arroyo Files Class Action YOUNIQUE LLC: Ct. Certifies Ca., Fla., Ohio Classes in "Schmitt" ZIMMER BIOMET: Court Partly Stays J. Carl's FLSA Suit ********* 410LEX INC: Boccio Sues Over Unpaid Overtime Compensation --------------------------------------------------------- Thomas Boccio and Sandra Castellano, individually and on behalf of those individual similarly situated, Plaintiffs, v. 410LEX, Inc. d/b/a Pro Test Environmental and Thomas Leddy, Defendants, Case No. 2:19-cv-00283 (E.D. N.Y., January 15, 2019) seeks monetary damages, declaratory, relief, and affirmative relief based upon Defendants' violations of the Fair Labor Standards Act ("FLSA") New York Labor Law ("NYLL"), New York State Department of Labor Regulations, common law, and other appropriate rules, regulations, statutes and ordinances. According to the complaint, the Defendants willfully failed and refused to pay the Plaintiffs overtime pay at a rate of 1.5 times their regular hourly rate for all hours worked in excess of 40 hours per week. Plaintiffs Boccio and Castellano were employees of the Defendants. 410LEX, Inc. d/b/a Pro Test Environmental, is a domestic business corporation operating at 410 Lexington Avenue, West Babylon, NY 11552. Thomas Leddy is the owner, or part owner and principal of Defendant 410LEX, Inc. d/b/a Pro Test Environmental.[BN] The Plaintiffs are represented by: Christopher K. Collotta, Esq. Ryan M. Eden, Esq. ZABELL & COLLOTTA, P.C. 1 Corporate Drive, Suite 103 Bohemia, NY 11716 Phone: (631) 589-7242 Fax: (631) 563-7475 Email: CCollotta@laborlawsny.com REden@laborlawsny.com ACCOUNTS RECEIVABLE: Bellenger Sues Over Auto-dialled Calls ----------------------------------------------------------- Gina Bellenger, individually and on behalf all others similarly situated, Plaintiff, v. Accounts Receivable Management, Inc. and Radius Global Solutions, LLC, Defendants, Case No. 8:19-cv-00117 (M.D. Fla., January 16, 2019) is a case involving activities conducted by Defendants in contacting individuals believed to be its debtors through use of prerecorded messages and automated calls in violation of the Telephone Consumer Protection Act and the Federal Communications Commission. The Defendants have violated the TCPA by making calls to Plaintiff and Class Members using an "automatic telephone dialing system" and an "artificial or prerecorded voice" without Plaintiff's and Class Members' prior express consent within the meaning of the TCPA, asserts the complaint. Plaintiff seeks injunctive relief and statutory damages, all arising from the illegal activities of Defendants, which used pre-recorded and automatically dialed messages to solicit payment from individuals it presumably believed to be debtors, says the complaint. Plaintiff Gina Belleneger is a citizen of the State of Florida residing in the City of Tampa. Accounts Receivable Management, Inc. is a New Jersey corporation with its principal place of business in Thorofare, New Jersey. ARM is a debt collection agency. Radius Global Solutions, LLC is Minnesota limited liability company with its principal place of business in Edina, Minnesota. Radius is a collection agency. In 2014, Radius acquired ARM.[BN] The Plaintiff is represented by: Andrew J. Shamis, Esq. SHAMIS & GENTILE, P.A. 14 NE 1st Ave., Suite 1205 Miami, FL 33132 Phone: (305) 479-2299 Facsimile: (786) 623-0915 Email: efilings@shamisgentile.com - and - Jibrael S. Hindi, Esq. THE LAW OFFICES OF JIBRAEL S. HINDI, PLLC 110 SE 6th Street Ft. Lauderdale, FL 33301 Phone: (954) 907-1136 Fax: (855) 529-9540 Email: jibrael@jibraellaw.com - and - Gary M. Klinger, Esq. KOZONIS & KLINGER, LTD. 4849 N. Milwaukee Ave., Ste. 300 Chicago, IL 60630 Phone: 312.283.3814 Fax: 773.496.8617 Email: gklinger@kozonislaw.com ADT LLC: John Snow Seeks Minimum & Overtime Wages for Sales Reps ---------------------------------------------------------------- JOHN SNOW, the PLAINTIFF, vs. ADT, LLC; and DOES 1 through 100, inclusive, the DEFENDANTS, Case No. 5:19-cv-00021 (C.D. Cal., Jan. 4, 2019), alleges that Defendants failed to pay overtime compensation as well as minimum wage in a timely manner pursuant to the California Labor Code. According to the complaint, on or about January of 2015, the Plaintiff began employment for ADT in the position of Sales Representative for the North County San Diego territory, which was potentially lucrative territory for Plaintiff. At the time of his hiring, the Plaintiff was misclassified as an employee "exempt" from applicable Wage Orders. Since he began working in this position, the Plaintiff has spent less than 51 percent of his working hours engaged in the duties of actively selling to customers, but he has spent more than 51 percent of his working hours at his regular place of business. However, the Plaintiff has not been paid minimum wage for all hours worked and has not been paid overtime wages at an amount of 1.5 times his regular rate for hours worked in excess of eight hours per day or forty hours per week from through present. Thus, during pay periods where the Plaintiff's commission did not represent a total equaling at least California minimum wage, his paycheck did not include all wages owed for the identified pay period. Timely payment cannot be cured, as ADT was aware of California minimum wage requirements and the nature and distribution of Plaintiff's duties. As a result of the above unlawful actions, ADT has gained an unfair competitive advantage over law-abiding companies complying with the Labor Code and applicable IWC Wage Orders, the lawsuit says. ADT LLC is a privately owned company with headquarters located in Boca Raton, FL. The Company's line of business involves electronic security systems.[BN] Attorneys for Plaintiff: Babak Semnar, Esq. Jared M. Hartman, Esq. Laurel N. Holmes, Esq. SEMNAR & HARTMAN, LLP 41707 Winchester Road, Suite 201 Temecula, CA 92590 Telephone: (951) 293-4187 Facsimile: (888) 819-8230 ALBANESE ENTERPRISES: Epps Seeks to Recover Minimum and OT Wages ---------------------------------------------------------------- DIONA EPPS, individually, and on behalf of all others similarly situated v. ALBANESE ENTERPRISES INC., d/b/a PARADISE GENTLEMEN'S CLUB, ALBANESE ENTERPRISES INC., d/b/a LIVE BAR, KLODIAN "JOHNNY" FERRA, individually, and LIANG ZHAO, Individually, Case No. 3:19-cv-00051-HES-JRK (M.D. Fla., January 9, 2019), is brought pursuant to the Fair Labor Standards Act to recover alleged unpaid minimum and overtime wages, liquidated damages and reasonable attorney's fees and costs. Albanese is a Florida Profit Corporation with its principal place of business located in Jacksonville, Florida. The Individual Defendants are officers or managers of the Defendant Corporations. Albanese owns and operates a club named Paradise Gentlemen's Club located at 8669 Baymeadows Road, in Jacksonville, Florida; and another club named Live Bar located at 331 East Bay Street, also in Jacksonville.[BN] The Plaintiff is represented by: Andrew R. Frisch, Esq. MORGAN & MORGAN, P.A. 600 N. Pine Island Road, Suite 400 Plantation, FL 33324 Telephone: (954) WORKERS Facsimile: (954) 327-3013 E-mail: AFrisch@forthepeople.com AMERICAN FINANCIAL: Arbitration Bid Denial in Pichardo Suit Flipped ------------------------------------------------------------------- In the case, ALEJANDRO PICHARDO, Plaintiff and Respondent, v. AMERICAN FINANCIAL NETWORK, Defendant and Appellant, Case No. G054755 (Cal. App.), Judge Raymond J. Ikola of the Court of Appeals of California for the Fourth District, Division Three, reversed the trial court's order denying the Defendant's motion to compel arbitration. Pichardo is the named Plaintiff in a putative class action against his former employer, the Defendant, for alleged wage and hour violations. The Defendant is a retail mortgage lender with offices in 28 states. It makes loans to consumers and then sells the loans on the secondary market to investors. It employs "Post Closers," who facilitate the sale of loans to investors. In August 2015, the Plaintiff (a high school graduate with three years of college coursework, who at the time was unemployed) received an offer to work for the Defendant as a Post Closer. On his start date, he reported to the Defendant's hiring manager, who gave him a stack of about 20 onboarding documents that he was instructed to fill out before he could begin work. According to the Defendant, one of the documents that the Plaintiff signed was a four-page document entitled "Mutual Agreement to Arbitrate Employment-Related Disputes." Although the Plaintiff does not recall signing the Arbitration Agreement, he does not deny that the "wet ink" signature on the document is his or otherwise assert that the signature was forged. After one year of employment with the Defendant, the Plaintiff quit his job. A few months later, he was substituted in as the named Plaintiff in a pending putative class action against the Defendant for alleged wage and hour violations. The Defendant moved to stay the trial court proceedings and compel arbitration. In its memorandum of points and authorities, it asked the court to issue a statement of decision under Section 1291 of the Code of Civil Procedure if the motion is denied. In support of its motion to compel, the Defendant provided a declaration by Andrew Kalyviaris, the Defendant's chief compliance officer and associate general counsel, attached to which was the subject Arbitration Agreement. Kalyviaris did not claim to have been present when plaintiff signed the Arbitration Agreement or otherwise attempt to authenticate the Arbitration Agreement. The Plaintiff opposed the motion. In support of his opposition, he provided his own declaration, a declaration by the former named plaintiff, and a declaration by his attorney, attached to which was the Rules and Procedures document that defendant had produced in response to the records request. The court heard oral argument and took the matter under submission. Four days later, it issued a three-page minute order denying the Defendant's motion for the following reasons: (1) the Defendant failed to authenticate the Plaintiff's signature on the Arbitration Agreement; (2) the class action waiver provision violates the National Labor Relations Act; (3) the Arbitration Agreement was procedurally and substantively unconscionable; and (4) severance was not possible because the Arbitration Agreement was permeated with one-sided, overly harsh and unfair provisions. Two days later, the Plaintiff served a notice of entry of judgment. The Defendant appealed. On appeal, the Defendant challenges: (1) the court failure's to provide a statement of decision in accordance with Code of Civil Procedure section 632; (2) the court's finding that defendant failed to authenticate the Arbitration Agreement; (3) the court's finding that the Arbitration Agreement's class action waiver violates the NLRA; (4) the court's finding that the Arbitration Agreement is procedurally and substantively unconscionable and thus unenforceable; and (5) the court's refusal to sever the offending provisions. Judge Ikola reversed the order denying the Defendant's motion to compel arbitration, and directed the trial court is directed to sever section 8 of the Arbitration Agreement. To be clear, he opined that the Defendant's Rules and Procedures are not part of the Arbitration Agreement. While the Arbitration Agreement may be procedurally unconscionable, after severance it is not substantively unconscionable and is, without more, enforceable as to the Plaintiff's individual non-PAGA claims. The resolution of any other issues bearing on whether arbitration should be compelled is left to the sound discretion of the trial court. In the interests of justice, each party will bear its or his own costs on appeal. A full-text copy of the Court's Jan 8, 2019 Opinion is available at https://is.gd/dzTLKc from Leagle.com. Law Office of Brett C. LaCues, Brett Christian LaCues -- brett@lacueslaw.com; Fisher & Phillips, Wendy McGuire Coats and Annie Lau -- alau@fisherphillips.com -- for Defendant and Appellant. Justice Law Corporation, Douglas Han -- dhan@justicelawcorp.com -- Shunt Tatavos-Gharajeh -- statavos@justicelawcorp.com -- Daniel J. Park -- dpark@justicelawcorp.com -- and Arsine Grigoryan -- agrigoryan@justicelawcorp.com -- for Plaintiff and Respondent. AMPLIFY ENERGY: Thompson FLSA Suit Dismissed Without Prejudice -------------------------------------------------------------- Judge Percy Anderson of the U.S. District Court for the Central District of California dismissed without prejudice the case, HOWARD THOMPSON, an individual, for himself and those similarly situated, Plaintiff, v. AMPLIFY ENERGY CORP., a Delaware corporation doing business in California; and DOES 1 through 100, inclusive, Defendants, Case No. 2:18-CV-09541-PA-E (C.D. Cal.). The Plaintiff's Complaint is dismissed without prejudice as to each and every claim therein, whether brought in an individual, the class action, or the representative capacity. The Plaintiff will not re-file any wage-and-hour related complaint against Amplify while the Jefferson Action is pending. he putative class in the within action will not be given notice of the dismissal because it has not received notice of the filing of the action and because its rights are to be adjudicated in the Jefferson Action. Each party is responsible for bearing its own fees and costs related to the instant action and its dismissal. Amplify will stipulate to allow the Plaintiff in the Jefferson Action to amend his operative complaint (provided it is remanded to the District Court) to add the Additional Claims, subject to the conditions set forth in the Order. In the event that the plaintiff in the Jefferson Action amends his operative complaint to add the Additional Claims, the defendants in the Jefferson Action do not waive any defenses to the newly added claims, including without limitation their contention that the newly added claims do not relate back to the original filing date in the Jefferson Action. Amplify is relieved from filing a responsive pleading to the Plaintiff's Complaint in the action. A full-text copy of the Court's Jan 8, 2019 Order is available at https://is.gd/kRqDbj from Leagle.com. Howard Thompson, an individual, for himself and those similarly situated, Plaintiff, represented by Aris Edmund Karakalos -- aris@strausslawyers.com -- Strauss and Strauss APC, Michael Anthony Strauss -- mike@strausslawyers.com -- Strauss and Strauss APC & Andrew Clayton Ellison -- andrew@strausslawyers.com -- Strauss and Strauss APC. Amplify Energy Corp., a Delaware corporation doing business in California, Defendant, represented by George W. Abele -- georgeabele@paulhastings.com -- Paul Hastings LLP. ASSET RECOVERY: Ct. Withholds Ruling on Arbitration Bid in Vandehey ------------------------------------------------------------------- The United States District Court for the Eastern District of Wisconsin issued a Decision and Order withholding ruling on the Defendants' motion to compel arbitration in the case captioned JACQUELYN A. VANDEHEY and MICHELLE L. O'LAIRE, on behalf of themselves and all others similarly situated, Plaintiffs, v. ASSET RECOVERY SOLUTIONS, LLC, VELOCITY INVESTMENTS LLC, and JOHN AND JANE DOES 1 THROUGH 25, Defendants. Case No. 18-C-144. (E.D. Wis.), pending supplemental pleadings. Plaintiffs Jacquelyn A. Vandehey and Michelle L. O'Laire, on behalf of themselves and all others similarly situated, allege that Defendants Asset Recovery Solutions, LLC (ARS), Velocity Investments LLC (Velocity), and John and Jane Does Numbers 1 through 25 violated the Fair Debt Collection Practices Act (FDCPA), by sending letters to Plaintiffs regarding consumer loans on which they had defaulted. The Plaintiffs challenge the admissibility of the loan and sale documents attached to the Defendants' motion to compel arbitration on hearsay grounds, arguing that the declaration filed in support of their motion is insufficient to show that the referenced documents constitute business records under Rule 803(6) of Federal Rules of Evidence. The Court finds that the Plaintiffs' objection on grounds of hearsay as to the notes, the Borrower Registration Agreements, and the Terms of Use of the Proper website are unavailing. The question instead is whether the notes and contracts have been properly authenticated. The Defendants have filed the Declaration of W. Peter Ragan, Jr., Velocity's Vice President, to identify and authenticate the various loan and sales documents they have attached to their Memorandum and Reply Memorandum in support of their motion to compel arbitration. According to the Borrower Registration Agreement, Prosper operates the Prosper marketplace, which is an online credit platform that offers, among other things, access to unsecured personal loans in the form of a promissory note. All loans originated through the Platform are made by WebBank, a Utah-chartered industrial bank. In order for the listing to result in a loan, the applicant must receive aggregate funding in commitments from Prosper investor members that equal or exceed the minimum funding amount applicable to the listing. The Borrower Registration Agreement includes the applicant's express consent to electronic transactions and disclosures, as set forth in the Terms and Conditions of Use, which are incorporated by reference. The Agreement states in bold letters: "You expressly agree that each of (a) this Agreement and (b) any Promissory Note in the form set forth on the attached Exhibit A that we sign on your behalf, may comprise a 'transferrable record' for all purposes under the Electronic Signatures in Global and National Commerce Act and the Uniform Electronic Transactions Act." The Court further finds that it is unclear what the Plaintiffs mean in their denials of having signed the notes or authorized Prosper Marketplace to act as their attorney-in-fact in signing the notes on their behalf. Do they mean that they did not physically affix their signature to the notes or a document appointing Prosper Marketplace their attorney-in-fact and authorizing it to sign the notes on their behalf? If that is all they are saying, they are playing games since it is clear from the circumstances surrounding the loans that any signatures would have been electronic, not physical. The same is true of their statement that they are unaware of doing anything that would have given Prosper Marketplace permission to act on their behalf. Do they mean that they never obtained a loan through the Prosper Marketplace? Or are they saying that they did obtain the loans reflected in the notes, but did not read, or do not now recall, the Borrower Registration Agreements and Terms of Use they were apparently required to electronically sign as a condition of obtaining the loans? Given the equivocal statements in their respective declarations, it is unclear whether Plaintiffs are denying the validity and enforceability of the notes because they did not lawfully assent to the terms, whether or not they read those terms, or whether they are simply saying they didn't physically sign any notes or powers of attorney, which under the circumstances is irrelevant. Civil litigation is too expensive to allow it to get bogged down in such obfuscation. The court will therefore hold an evidentiary hearing on Defendants' motion to compel arbitration to clarify the record unless the parties are able to do so by supplementing the record. The Plaintiffs also challenge the Defendants' claim that they acquired the right to assert any rights under the arbitration and class action waiver provisions of the notes that might exist. In other words, they challenge the sales documents Ragan identifies in his declaration. Ragan's declaration would seem sufficient to authenticate some of the sales documents as records kept in the course of a regularly conducted business within the meaning of Rule 803(6). The evidence is less clear concerning Proper's interest in the loans. Prosper's interest in the loans is evidenced by the Certificates of Loan Sale signed by Kelly Barnett, the President of WebBank, certifying that each of the loans identified by loan number on the attached Exhibit A was originated by WebBank, serviced by Prosper or its affiliate PMI, and that WebBank then "transferred, assigned, and conveyed to Prosper Funding LLC and its successors and permitted assigns, all right, title and interest WebBank held in each Asset. The Certificates of Loan Sale, according to Ragan, are copies of documents Velocity received from Prosper as part of the loan purchase transaction. But as Plaintiffs point out, the certificates are not in the form of a sworn affidavit or declaration, and they do not constitute contemporaneous records of the business of WebBank. Since it is necessary to clarify the record as to whether Plaintiffs electronically signed the notes and/or appointment of Prosper Marketplace as their attorney-in-fact, Defendants should use the same opportunity to more clearly substantiate the chain of title to the loans at issue. Even aside from these evidentiary issues, the Plaintiffs contend that the arbitration provisions are unenforceable under the circumstances of this case. Since if the Plaintiffs are right, it would render the evidentiary issues moot, the Court turns to the Plaintiffs' more substantive arguments in opposition to Defendants' motion to compel arbitration. Enforceability of Arbitration Provision The Federal Arbitration Act (FAA) embodies a national policy favoring arbitration and requires courts to place arbitration agreements on equal footing with all other contracts. Under the FAA, a court must compel arbitration if three elements are present: (1) an enforceable written agreement to arbitrate (2) a dispute within the scope of the arbitration agreement and (3) a refusal to arbitrate. Once an enforceable arbitration contract is shown to exist, questions as to the scope of arbitrable issues should be resolved in favor of arbitration. Assuming PMI's electronic signatures as attorney-in-fact for the Plaintiffs are valid and enforceable, the Plaintiffs are bound by the terms of the notes PMI signed on their behalf. The Plaintiffs argue, however, that it is clear both Defendants are not entitled to the benefit of the arbitration clause. The Plaintiffs argue that the court can readily dispose of the Defendants' motion to compel arbitration as it relates to the claims against ARS because ARS does not fall within the definition of those covered by the arbitration clause. Paragraph 18(a)(ii) of the note defines those whose disputes with the borrowers are subject to arbitration as: WebBank, any person servicing this Note for WebBank, any subsequent holders of this Note or any interest in this Note, any person servicing the Note for such subsequent holder of this Note, and each of their respective parents, subsidiaries, affiliates, predecessors, successors, and assigns, as well as the officers, directors, and employees of each of them. This definition is broad enough to encompass ARS. Ragan states in his supplemental declaration that after Velocity purchased the Vandehey and O'Laire loans, Galaxy, a company that services the debts purchased by Velocity, authorized ARS to service the debts purchased by Velocity. Thus, ARS was servicing the notes for Velocity, a subsequent holder of the notes. As such, both Velocity and ARS fall within the definition of those entitled to enforce the arbitration provision to resolve Plaintiffs' disputes. The Plaintiffs also dispute whether Velocity is a subsequent holder of the notes. The Plaintiffs argue that the Defendants have failed to prove a transfer of Vandehey and O'Laire's specific loans to Velocity. They contend that the exhibits Defendants have offered fail to establish that any note was negotiated or that any interest in the loans was assigned or sold to Velocity. But as noted above, the Bills of Sale, Exhibits D and F, show that Prosper sold Plaintiffs' accounts to Velocity. Assuming, as Ragan asserts in his declaration, that WebBank sold its interest in Plaintiffs' loans to Prosper, the Bills of Sale clearly indicate that the loan accounts, and evidences of debt were transferred to Velocity. Evidences of debt would presumably include the notes, though Defendants may wish to make this more clear when they supplement the record. Velocity would therefore be considered a holder of the notes Plaintiffs gave to WebBank. As such, Velocity would be entitled to enforce the arbitration provision. The Plaintiffs next contend that the Defendants waived their right to arbitrate any dispute by failing to assert it earlier in the proceeding. Waiver of a right to enforce arbitration can be either explicit or inferred from a party's actions. There was no explicit waiver here. To find implied waiver, a court must consider the totality of the circumstances and determine that a party acted inconsistently with the right to arbitrate. Relevant factors to consider in this analysis include the allegedly defaulting party's diligence or lack thereof, delay in requesting arbitration, and participation in discovery, as well as prejudice to the party asserting waiver. Diligence and prejudice are weighed most heavily. The Court concludes that the record is unclear as to whether Plaintiffs assented to the terms of the note either directly or by authorizing Prosper Marketplace to sign the notes on their behalf as their attorney-in-fact. The evidence is also insufficient to establish that WebBank assigned the notes to Prosper, which in turn transferred them to Velocity. The chain of title to the debts and notes evidencing them should be clarified by Velocity. A full-text copy of the District Court's December 27, 2018 Decision and Order is available at https://tinyurl.com/y8kp3k7e from Leagle.com. Jacquelyn A Vandehey & Michelle L O'Laire, Plaintiffs, represented by Francis R. Greene, Stern Thomasson LLP, Philip D. Stern, Stern Thomasson LLP & Andrew T. Thomasson, Stern Thomasson LLP. Asset Recovery Solutions LLC, an Illinois limited liability company & Velocity Investments LLC, a New Jersey limited liability company, Defendants, represented by Douglas A. Albritton -- albritton@actuatelaw.com -- Actuate Law LLC. AUROBINDO PHARMA: Duffy Sues Over Carcinogen in Hypertension Meds ----------------------------------------------------------------- Elizabeth Duffy, Joseph Cacaccio, And Cecil Byrd, on behalf of themselves and all others similarly situated, Plaintiffs, v. Aurobindo Pharma USA, Inc., CVS Health Co., Rite Aid Corporation and Throggs Neck Pharmacy, Defendants., Case No. 19-cv-00088 (S.D. N.Y., January 3, 2019), seeks compensatory, statutory and punitive damages, prejudgment interest on all amounts awarded, restitution and all other forms of equitable monetary relief, injunctive relief and reasonable attorneys' fees and expenses and costs of suit resulting from negligence, fraud, unjust enrichment, breach of implied and express warranty and for violation of South Carolina's Unfair Trade Practices Act, New York general business laws. Aurobindo, CVS, Rite Aid and Throggs Neck Pharmacy are alleged of manufacturing, distributing and selling valsartan-containing generic prescription medications contaminated with N-nitrosodiethylamine, a carcinogenic and liver-damaging impurity. Valsartan is a prescription medication mainly used for the treatment of high blood pressure and congestive heart failure. Aurobindo Pharma USA, Inc. has been engaged in the manufacturing, sale and distribution of generic drugs in the United States. Throggs Neck Pharmacy, CVS and Rite Aid Corporation are pharmacy chains with locations all over the US and carry Autobindo's drugs. [BN] Plaintiff is represented by: Joseph I. Marchese, Esq. BURSOR & FISHER, P.A. 888 Seventh Avenue New York, NY 10019 Telephone: (212) 989-9113 Facsimile: (212) 989-9163 E-Mail: jmarchese@bursor.com AVENUE THERAPEUTICS: Bushansky Files Suit Over Sale to InvaGen -------------------------------------------------------------- Stephen Bushansky, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. Avenue Therapeutics, Inc., Lindsay A. Rosenwald, Lucy Lu,Neil Herskowitz, Jay Kranzler, Akhtar Samad, Jeffrey Paley and Michael S. Weiss, Defendants, Case No. 1:19-cv-00085-UNA (D. Del., January 15, 2019) is a stockholder class action brought by Plaintiff on behalf of himself and all other public stockholders of Avenue Therapeutics, Inc. against Avenue and the members of Avenue's Board of Directors for their violations of the Securities Exchange Act of 1934 and U.S. Securities and Exchange Commission and to enjoin the vote on a proposed transaction, pursuant to which Avenue will be acquired by InvaGen Pharmaceuticals Inc. in a two-stage transaction. On November 13, 2018, Avenue and InvaGen issued a joint press release announcing they had entered into a Stock Purchase and Merger Agreement dated November 12, 2018 to sell Avenue to InvaGen in a two-stage transaction. On December 21, 2018, Avenue filed a Definitive Proxy Statement on Schedule 14A with the SEC. The Proxy Statement, which recommends that Avenue stockholders vote in favor of the Proposed Transaction, omits or misrepresents material information concerning, among other things: (i) Avenue's financial projections, relied upon by the Company's financial advisor, Oppenheimer & Co. Inc., in its financial analyses, which are wholly omitted from the Proxy Statement; (ii) the data and inputs underlying the financial valuation analyses that support the fairness opinion provided by Oppenheimer; (iii) the background process leading to the Proposed Transaction; (iv) Oppenheimer's potential conflicts of interest; and (v) potential conflicts of interest faced by Company insiders. The failure to adequately disclose such material information constitutes a violation the Exchange Act as Avenue stockholders need such information in order to make a fully informed decision whether to vote in favor of the Proposed Transaction or seek appraisal. In short, unless remedied, Avenue's public stockholders will be forced to make a voting or appraisal decision on the Proposed Transaction without full disclosure of all material information concerning the Proposed Transaction being provided to them. Plaintiff seeks to enjoin the stockholder vote on the Proposed Transaction unless and until such Exchange Act violations are cured, says the complaint. Plaintiff is a stockholder of Avenue. Avenue is a Delaware corporation, with its principal executive offices located at 2 Gansevoort Street, 9th Floor, New York, New York 10014. The Company is a specialty pharmaceutical company that acquires, licenses, develops, and commercializes products primarily for use in the acute/intensive care hospital setting. Avenue's common stock trades on the NASDAQ Capital Market under the ticker symbol "ATXI". Lindsay A. Rosenwald has been Executive Chairman of the Board since the Company's inception on February 9, 2015. Defendant Rosenwald has been Chairman and Chief Executive Officer ("CEO") of Fortress Biotech, Inc. since December 2013. Lucy Lu has been President, CEO and a director of the Company since its inception on February 9, 2015. From February 2012 to June 2017, defendant Lu previously served as the Executive Vice President and Chief Financial Officer of Fortress. Neil Herskowitz has been a director of the Company since August 2015. Jay Kranzler has been a director of the Company since February 2017. Jeffrey Paley has been a director of the Company since December 2015. Akhtar Samad has been a director of the Company since December 2015. Michael S. Weiss has been a director of the Company since February 2015. Defendant Weiss also serves in several capacities at Fortress, most recently as Executive Vice Chairman since February 2014.[BN] The Plaintiff is represented by: Ryan M. Ernst, Esq. O'KELLY ERNST & JOYCE, LLC 901 N. Market St., Suite 1000 Wilmington, DE 19801 Phone: (302) 778-4000 Email: rernst@oelegal.com - and - Richard A. Acocelli, Esq. Michael A. Rogovin, Esq. Kelly K. Moran, Esq. WEISSLAW LLP 1500 Broadway, 16th Floor New York, NY 10036 Phone: (212) 682-3025 Fax: (212) 682-3010 AXOGEN INC: Faces Einhorn Securities Class Suit in M.D. Florida --------------------------------------------------------------- NEIL EINHORN, Individually and On Behalf of All Others Similarly Situated v. AXOGEN, INC, KAREN ZADEREJ, PETER J. MARIANI, GREGORY G. FREITAG, JAMIE M. GROOMS, ROBERT J. RUDELIUS, MARK GOLD, JOHN HARPER, JOE MANDATO, GUIDO NEELS, AMY WENDELL, LEERINK PARTNERS LLC, CANTOR FITZGERALD & CO., JMP SECURITIES LLC, JEFFERIES LLC, and WILLIAM BLAIR & COMPANY, L.L.C., Case No. 8:19-cv-00069 (M.D. Fla., January 9, 2019), pursues claims against the Defendants under the Securities Act of 1933 and the Securities Exchange Act of 1934. Mr. Einhorn alleges that the Registration Statements the Defendants filed with the Securities and Exchange Commission in connection with the Company's public offerings were false and misleading and omitted to state material adverse facts. Specifically, he contends, the Defendants failed to disclose to investors that, among other things: (1) the Company aggressively increased prices to mask lower sales; (2) the Company's pricing alienated customers and threatened the Company's future growth; (3) ambulatory surgery centers form a significant part of the market for the Company's products; (4) such centers were especially sensitive to price increases; and (5) the Company was dependent on a small number of surgeons whom the Company paid to generate sales. AxoGen is incorporated under the laws of Minnesota with its principal executive offices located in Alachua, Florida. The Individual Defendants are directors and officers of the Company. Defendants Leerink, Cantor, JMP, Jefferies, and William Blair served as underwriters for the Company's public offerings. AxoGen purports to provide surgical solutions for physical damage or discontinuity to peripheral nerves. Its products include nerve allografts and extracellular matrices.[BN] The Plaintiff is represented by: Leo W. Desmond, Esq. DESMOND LAW FIRM, P.C. 5070 Highway A1A, Suite D Vero Beach, FL 32963 Telephone: (772) 231-9600 Facsimile: (772) 231-0300 E-mail: lwd@desmondlawfirm.com - and - Lionel Z. Glancy, Esq. Robert V. Prongay, Esq. Lesley F. Portnoy, Esq. Charles H. Linehan, Esq. Pavithra Rajesh, Esq. GLANCY PRONGAY & MURRAY LLP 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 Telephone: (310) 201-9150 Facsimile: (310) 201-9160 E-mail: lglancy@glancylaw.com rprongay@glancylaw.com lportnoy@glancylaw.com clinehan@glancylaw.com - and - Howard G. Smith, Esq. LAW OFFICES OF HOWARD G. SMITH 3070 Bristol Pike, Suite 112 Bensalem, PA 19020 Telephone: (215) 638-4847 Facsimile: (215) 638-4867 E-mail: hsmith@howardsmithlaw.com BAYVIEW LOAN: Court Won't Dismiss R. Hackett's TILA Suit -------------------------------------------------------- The United States District Court for the District of Maryland issued a Memorandum Opinion denying Defendant's Motion to Dismiss the case captioned RICHARD HACKETT, et al., Plaintiffs, v. BAYVIEW LOAN SERVICING, LLC, et al., Defendants. Civil Action No. 18-cv-01286-PX. (D. Md.). The Complaint avers that Bayview, as an agent for the Bank, improperly assessed property preservation or inspection charges on loans that it serviced and improperly denied the Hacketts' loan modification application. As a result, the Hacketts filed suit individually and on behalf of three subclasses of debtors, asserting violations of the Truth in Lending Act (TILA), the Maryland Consumer Debt Collection Practices Act; the Maryland Consumer Protection Act, the Maryland usury statute; the Maryland Mortgage Fraud Protection Act and the common law doctrine of unjust enrichment. Dismissal of TILA Claims In responding to the Defendants' motion to dismiss, the Hacketts concede dismissal of the TILA claims in light of this Court's recent dismissal of nearly identical claims. The Hacketts are correct that dismissal of the TILA claims is warranted for the same reasons articulated in Kemp. Kemp v. Seterus, Inc., No. 18-472, 2018 WL 3159070, at *4-6 (D. Md. June 27, 2018). TILA mandates that a creditor or servicer of a home loan shall send an accurate payoff balance within a reasonable time, but in no case more than 7 business days, after the receipt of a written request for such balance from or on behalf of the borrower. In Kemp, the plaintiff brought TILA claims on behalf of herself and a putative class against a loan servicer and an assignee creditor arising from the assessment of property inspection fees. This Court held that the TILA claims against the loan servicer are clearly dismissible because the loan servicer was neither a creditor nor assignee of a creditor. The Court then found that Fannie Mae, as an assignee creditor, was not liable under TILA because the alleged inaccuracy forming the basis of the TILA violation (the assessment of inspection fees) was not apparent on the face of the disclosure statement. Similar to Kemp, the claims against Bayview fail because Bayview, as loan servicer, is neither a creditor nor assignee creditor. Accordingly, assessment of such fees could not render the disclosure statement facially inaccurate. Assignee liability against the Bank under TILA cannot attach. Accordingly, the Defendants' motion to dismiss is granted as to the TILA claims. Remaining State Law Claims As to the remaining state law claims, the Hacketts argue that remand is warranted. The Defendants disagree, contending that the Court maintains diversity jurisdiction over the state law claims. The Court finds that diversity jurisdiction is lacking and exercises its inherent authority to remand the case. This Court, as one of limited jurisdiction, may hear only civil cases that implicate a federal question or are brought pursuant to the Court's diversity jurisdiction. Diversity jurisdiction is proper where the amount in controversy exceeds $75,000 and no plaintiff is a citizen of the same state as any defendant. Where diversity jurisdiction is proper, a defendant may remove the case to federal court pursuant to 28 U.S.C. Section 1441. The parties confine their jurisdictional dispute to the allegations in the Complaint. The Hacketts expressly limit the amount in controversy to $63,500 on their individual claims, a sum decidedly not in excess of $75,000. Further, although the Hacketts would be entitled, in theory, to additional damages based on membership in the putative class, the Court has no way of determining the Hacketts pro rata share of the recoverable class claims. Because Defendants have failed to demonstrate that any individual class member, let alone the Hacketts, seeks to recover an amount exceeding $75,000, diversity jurisdiction is lacking. In deciding whether to dismiss or remand, the Court must consider 'principles of economy, convenience, fairness, and comity' and whether the efforts of a party in seeking remand amount to a 'manipulative tactic.' Efficiency and continuity of the case tilt in favor of remand over dismissal, particularly where removal has now delayed the case for the better part of a year. Furthermore, the Court does not find that the Hacketts have sought dismissal of the TILA claims to manipulate jurisdiction; rather dismissal is warranted on the merits and in light of recent persuasive authority. Remand in this context is appropriate. The Court remands the case to the Circuit Court for Montgomery County, Maryland, and denies as moot the Defendants' motion to dismiss as to the non-TILA claims. A full-text copy of the District Court's December 27, 2018 Memorandum Opinion is available at https://tinyurl.com/ydb395qu from Leagle.com. Richard Hackett, on their behalf and on behalf of three classes of similarly situated persons & Megan Hackett, on their behalf and on behalf of three classes of similarly situated persons, Plaintiffs, represented by Phillip R. Robinson, Consumer Law Center LLC. Bayview Loan Servicing, LLC & The Bank of New York Mellon, as Trustee for the Certificate Holders of the CWALT, Inc., Alternative Loan Trust 2006-OA19, Defendants, represented by Andrew North Cook -- andrew.cook@klgates.com -- K and L Gates LLP, Andrew C. Glass -- andrew.glass@klgates.com -- K&L Gates LLP, pro hac vice, Gregory N. Blase -- gregory.blaze@klgates.com -- K and L Gates LLP, pro hac vice & Hollee Watson -- hollee.watson@klgates.com -- K&L Gates LLP, pro hac vice. BDO USA: McIntire et al Suit Transferred to S.D. New York --------------------------------------------------------- A case, ARIC MCINTIRE, and HENRY WASIK, Individually and on Behalf of All Others Similarly Situated, the Plaintiffs, vs. STEVEN M. MARIANO, THOMAS C. SHIELDS, JOHN R. DEL PIZZO, AUSTIN J. SHANFELTER, CHRISTOPHER PESCH, CHARLES H. WALSH, QUENTIN P. SMITH, BDO USA LLP, UBS SECURITIES LLC, BMO CAPITAL MARKETS CORP., SUNTRUST ROBINSON HUMPHREY, INC., JMP SECURITIES LLC, and WILLIAM BLAIR & COMPANY, L.L.C., the Defendants, Case No. 0:18-cv-60075, was transferred from the U.S. District Court for the Southern District of Florida to the U.S. District Court for the Southern District of New York (Foley Square) on Jan. 4, 2019. The Southern District of New York Court Clerk assigned Case No. 1:19-cv-00098-CM to the proceeding. The case is Assigned to Hon. Judge Colleen McMahon. The case is a securities class action on behalf of all purchasers of Patriot National common stock from January 15, 2015 to November 22, 2017 who sustained significant losses due to the Defendants' violations of the federal securities laws. From the moment Patriot National sold shares to the public in its initial public offering on January 15, 2015, the Defendants, led by Steven Mariano, Patriot National's controlling stockholder and former Chairman, President, and Chief Executive Officer, presented a false image of Patriot National and its business, the lawsuit says. BDO USA, LLP is the United States Member Firm of BDO International, a global accounting network. The company is headquartered in Chicago. UBS Securities Co., Ltd. is a Chinese investment bank and brokerage firm that affiliated to Swiss investment bank UBS, which was the second largest shareholder for 24.99% stake. BMO Capital Markets is the investment banking subsidiary of Canadian Bank of Montreal. The company offers corporate, institutional and government clients access to a range of financial services.[BN] Attorneys for Plaintiffs: Cullin Avram O'Brien, Esq. CULLIN O'BRIEN LAW, P.A. 6541 NE 21st Way Ft. Lauderdale, FL 33308 Telephone: (561) 676-6370 Facsimile: (561) 320-0285 E-mail: cullin@cullinobrienlaw.com Attorneys for Steven M. Mariano: Michael Edward Dutko, Jr., Esq. William R. Scherer, Esq. CONRAD & SCHERER 633 South Federal Highway, 8th Floor Fort Lauderdale, FL 33301 Telephone: (954) 462-9567 E-mail: wrs@conradscherer.com Attorneys for Thomas C. Shields and John R. Del Pizzo: Bradley Joseph Bondi, Esq. Jason Michael Hall, Esq. Peter J. Linken, Esq. CHAILL GORDON & REINDEL LLP 1990 K. Street, NW, Suite 950 Wasington, DC 20006 Telephone: (202) 862-8910 E-mail: bbondi@cahill.com jhall@cahill.com Attorneys for Austin J. Shanfelter: Marcos Daniel Jimenez, Esq. MARCOS D. JIMENEZ, P.A. 255 Alhambra Circle, Suite 800 Coral Gables, FL 33134 Telephone: (305) 570-3249 E-mail: mdj@mdjlegal.com Attorneys for Christopher Pesch and Quentin P. Smith: Erica Gomer, Esq. Jason Samuel Oletsky, Esq. AKERMAN LLP 350 E. Las Olas Blvd., Suite 1600 Fort Lauderdale, FL 33301 Telephone: (954) 463-2700 E-mail: erica.gomer@akerman.com jason.oletsky@akerman.com - and - Christopher Bosch, Esq. John P. Stigi, III, Esq. Kandace Watson, Esq. Rena Andoh, Esq. SHEPPARD MULLIN RICHTER & HAMILTON LLP 12275 El Camino Real, Suite 200 San Diego, CA 92130 Telephone: (858) 720-8900 E-mail: cbosch@sheppardmullin.com jstigi@sheppardmullin.com kwatson@sheppardmullin.com randoh@sheppardmullin.com Attorneys for BDO USA L.L.P. Audrey M Pumariega, Esq. MCDERMOTT WILL & EMERY LLP 333 Avenue of the Americas, Suite 4500 Miami, FL 33131-4336 Telephone: (305) 329-4421 Facsimile: (305) 402-6287 E-mail: apumariega@mwe.com - and - Jason D. Gerstein, Esq. Seth L. Friedman, Esq. MCDERMOTT WILL & EMERY LLP 340 Madison Avenue New York, NY 10173 E-mail: jgerstein@mwe.com sfriedman@mwe.com Attorneys for William Blair & Company L.L.C.; JMP Securities L.L.C.; UBS Securities L.L.C.; Suntrust Robinson Humphrey Inc.; and BMO Capital Markets Corp.: Alan J. Brudner, Esq. David L. Goldberg, Esq. KATTEN MUCHIN ROSENMAN, LLP (NYC) 575 Madison Avenue New York, NY 10022 Telephone: (212) 940-6362 Facsimile: (212) 940-8776 E-mail: alan.brudner@kattenlaw.com david.goldberg@kattenlaw.com - and - Jezabel Pereira Lima, Esq. Lawrence Allan Kellogg, Esq. LEVINE KELLOGG LEHMAN SCHNEIDER & GROSSMAN LLP 201 S. Biscayne Blvd., Suite 2200 Miami, FL 33131 Telephone: (305) 722-8904 Facsimile: (305) 403-8789 E-mail: jl@lklsg.com lak@lklsg.com Attorneys for Anthony Gingello, Intervenor: Josh M Rubens, Esq. KLUGER, KAPLAN, SILVERMAN, KATZEN & LEVINE, P.L. 201 S. Biscayne Blvd., Suite 1700 Miami, FL 33131 Telephone: (305) 379-9000 E-mail: jrubens@klugerkaplan.com BENIHANA NATIONAL: Bid to Remand Ramirez Suit to State Court Denied ------------------------------------------------------------------- In the case, JORGE A. RAMIREZ, et al., Plaintiffs, v. BENIHANA NATIONAL CORP., Defendant, Case No. 18-cv-05575-MMC (N.D. Cal.), Judge Maxine M. Chesney of the U.S. District Court for the Northern District of California denied the Plaintiffs' Motion to Remand Class Action to State Court. On June 26, 2018, the Plaintiffs filed a class action complaint in the Superior Court of the State of California in and for the County of Contra Costa, by which the pleading Plaintiffs assert the following Six Causes of Action: (1) "Failure to Pay Wages" in violation of Cal. Lab. Code Sections 510, 1194, and 1197; (2) "Failure to Provide Meal Periods" in violation of Cal. Lab. Code Sections 226.7 and 512; (3) "Failure to Provide Rest Periods" in violation of Cal. Lab. Code Sections violation of Cal. Lab. Code Section 226(a); (5) "Failure to Pay Earned Wages Upon Termination or Discharge" in violation of Cal. Lab. Code Sections 201 and 202; and (6) "Unfair Competition" in violation of Cal. Bus. and Prof. Code Section 17200. The Complaint does not allege an amount in controversy. On Sept. 12, 2018, the Defendant filed a Notice of Removal, contending that the case meets each Class Action Fairness Act requirement for removal, and is timely and properly removed by the filing of the Notice. By the instant motion, filed Oct. 11, 2018, the Plaintiffs seek an order remanding the instant action to state court, on the ground the Defendant has not demonstrated the amount in controversy exceeds $5 million, the monetary threshold for removal under CAFA. Judge Chesney finds that the Defendant has shown, by a preponderance of the evidence, the amount in controversy in the instant case includes damages and attorneys' fees totaling a sum in excess of $5 million, and, consequently, the requirements for removal under CAFA have been met. For these reasons, she denied the Plaintiffs' Motion to Remand. A full-text copy of the Court's Jan 8, 2019 Order is available at https://is.gd/lLx5Gi from Leagle.com. Jorge A Ramirez, individually and on behalf ofothers similarly situated & Angel Sandoval-Rivera, individually and on behalf ofothers similarly situated, Plaintiffs, represented by Jamielee Fabia Martinez, Michael H. Kim P.C. & Michael Hyungchoon Kim -- kim@mhklawyers.com -- Law Offices of Michael H. Kim, PC. Benihana National Corp., Defendant, represented by Constance Elizabeth Norton -- cnorton@littler.com -- Littler Mendelson, APC, Angela Joy Rafoth -- arafoth@littler.com -- Littler Mendelson, P.C. & Charles Robert Harrington -- rharrington@littler.com -- Littler Mendelson, P.C.. BOFI HOLDING: Grigsby Appeals Mandalevy Suit Dismissal to 9th Cir. ------------------------------------------------------------------ Plaintiffs David Grigsby and Joseph Shepard filed an appeal from a court ruling in their lawsuit entitled Bar Mandalevy, et al. v. BofI Holding, Inc., et al., Case No. 3:17-cv-00667-GPC-KSC, in the U.S. District Court for the Southern District of California, San Diego. As reported in the Class Action Reporter on Dec. 19, 2018, Judge Gonzalo P. Curiel granted the Defendants' Motion to Dismiss Plaintiffs' Second Amended Complaint. The Plaintiffs claim that BofI and its executives made numerous false representations in public statements, which misled investors. When the truth of these misrepresentations was revealed in media reports, BofI's share price dropped. On April 3, 2017, the Plaintiffs filed a Class Action Complaint against the Defendants which asserted a claim under Section 10(b) of the Securities Exchange Act by way of violation of the SEC's Rule 10b-5. They also alleged a count for violation of Section 20(a) of the Securities Exchange Act. The Plaintiffs claimed that the Defendants violated Sections 10(b) and 20(a) by making misrepresentations about BofI's loans to criminals and government investigations. The appellate case is captioned as David Grigsby, et al. v. BofI Holding, Inc., et al., Case No. 19-55042, in the United States Court of Appeals for the Ninth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Appellants David Grigsby and Joseph Shepard's opening brief is due on March 6, 2019; -- Appellees Eshel Bar-Adon, BofI Holding, Inc., Gregory Garrabrants, Paul J. Grinberg and Andrew J. Micheletti's answering brief is due on April 8, 2019; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Plaintiffs-Appellants DAVID GRIGSBY and JOSEPH SHEPARD, On Behalf of Themselves and All Others Similarly Situated, are represented by: Patrick M. Dahlstrom, Esq. POMERANTZ LLP 10 South LaSalle Street, Suite 3505 Chicago, IL 60603 Telephone: (312) 377-1181 E-mail: pdahlstrom@pomlaw.com - and - Jeremy Alan Lieberman, Esq. Brenda F. Szydlo, Esq. POMERANTZ LLP 600 Third Avenue New York, NY 10016 Telephone: (212) 661-1100 E-mail: jalieberman@pomlaw.com bszydlo@pomlaw.com Defendants-Appellees BOFI HOLDING, INC., GREGORY GARRABRANTS, ANDREW J. MICHELETTI, ESHEL BAR-ADON and PAUL J. GRINBERG are represented by: John P. Stigi, III, Esq. SHEPPARD MULLIN RICHTER & HAMPTON LLP 1901 Avenue of the Stars Los Angeles, CA 90067-6001 Telephone: (310) 228-3700 E-mail: jstigi@sheppardmullin.com BOSWORTH PLACE: Never Pays Overtime Under FLSA, Dalfior Suit Says ----------------------------------------------------------------- ANTENOR DALFIOR, on behalf of himself and all others similarly situated v. BOSWORTH PLACE, INC. d/b/a BEANTOWN PUB; ROGER W. ZEGHIBE, Case No. 1:19-cv-10049-FDS (D. Mass., January 9, 2019), alleges that the Defendants never paid the Plaintiff overtime premium for any of the hours he worked in excess of 40 each week, in violation of the Fair Labor Standards Act. Bosworth Place, Inc., doing business as Beantown Pub, is a Massachusetts corporation with a principal place of business in Boston, Massachusetts. Roger W. Zeghibe is the president, treasurer, and owner of Beantown Pub. According to the Company, Beantown Pub is a sports bar with large portions of New England comfort food in casual digs near the Freedom Trail.[BN] The Plaintiff is represented by: Stephen S. Churchill, Esq. FAIR WORK, P.C. 192 South Street, Suite 450 Boston, MA 02111 Telephone: (617) 607-6230 E-mail: steve@fairworklaw.com CAMPBELL SOUP: Court Denies Bid to Remand Schwartz ICFA Suit ------------------------------------------------------------ In the case, DANIELLE SCHWARTZ and HAUNAH VANLANINGHAM, Individually and On Behalf of All Other Similarly-Situated Current Citizens of Illinois, Plaintiffs, v. CAMPBELL SOUP CO., Defendant, Case No. 18-CV-1655-NJR-DGW (S.D. Ill.), Judge Nancy J. Rosenstengel of the U.S. District Court for the Southern District of Illinois denied the Plaintiffs' Motion to Remand. The Plaintiffs filed the putative class action on June 21, 2018, in the Circuit Court for the Twentieth Judicial Circuit, St. Clair County, Illinois. They allege Campbell was unjustly enriched and violated the Illinois Consumer Fraud and Deceptive Practices Act by deceptively and falsely representing that its soups were not made with preservatives The Plaintiffs define the class as all current citizens of Illinois who purchased Campbell Soup Slow Kettle Style Tomato & Sweet Basil Bisque, Roasted Red Pepper & Smoked Gouda Bisque, New England Clam Chowder, Home Style Harvest Tomato with Basil, Zesty Tomato, and/or Home Style Healthy Request Harvest Tomato with Basil soups in the five years preceding the filing of the Petition in the case. The Plaintiffs allege there are hundreds of members of the class, and the total value of their individual claims is, at most, equal to the refund of the purchase price of the soup. Plaintiff Schwartz contends she paid $3.89 for one of Campbell's soups, which is typical of all class members. Plaintiff Vanlaningham asserts she paid $2.49 for soup, which is also typical of all class members. The Plaintiffs seek compensatory damages or, alternatively, disgorgement or restitution; pre- and post- judgment interest; attorneys' fees and costs; and all such other and further relief. On Aug. 29, 2018, Campbell filed a notice of removal in the Court, invoking the Court's jurisdiction under the Class Action Fairness Act ("CAFA"). The Plaintiffs move to remand the case, asserting the amount in controversy does not exceed $5 million, as required under CAFA. Judge Rosenstengel finds that Campbell has met its burden regarding proof of the jurisdictional amount in controversy. For now, the Court's subject matter jurisdiction is satisfied. Accordingly, she denied the Plaintiffs' Motion to Remand. A full-text copy of the Court's Jan 8, 2019 Memorandum and Order is available at https://is.gd/SGkPqG from Leagle.com. Danielle Schwartz, individually and on behalf of all other similarly-situated current citizens of Illinois & Haunah Vanlaningham, individually and on behalf of all other similarly-situated current citizens of Illinois, Plaintiffs, represented by David C. Nelson, Nelson & Nelson Attorneys at Law, P.C., Matthew H. Armstrong, Armstrong Law Firm LLC, L. Kirstine Rogers -- krogers@stecklerlaw.com -- Steckler Gresham Cochran, PLLC & Stuart L. Cochran -- stuart@stecklerlaw.com -- Steckler Gresham Cochran, PLLC. Campbell Soup Co., Defendant, represented by Cassandra L. Abernathy -- CAbernathy@perkinscoie.com -- Perkins Coie, LLP, Charles C. Sipos -- CSipos@perkinscoie.com -- Perkins Coie LLP & David T. Biderman -- DBiderman@perkinscoie.com -- Perkins Coie LLP. CANADA: $135MM Suit Accuses RCMP of Failing to Protect New Recruits ------------------------------------------------------------------- Rachel Houlihan and Dave Seglins, writing for CBC News, reported that a medical exam at RCMP headquarters in Toronto is all that stood between 20-year-old Helen Henderson and a promotion within the Mounties in February 1987. But as the office door closed, Henderson said terror set in, as the RCMP's doctor began rubbing up against her, pinching her nipples and proceeding with an invasive vaginal exam. "There was no way out," Henderson told CBC News, recalling the appointment 30 years later. "There [were] no gloves. There was no handwashing. He was taking advantage of a young girl who didn't know any better. He was getting off personally." Henderson said she "basically ran out of the office, knowing that something really wrong happened there." The doctor, John A. Macdougall, examined hundreds of new recruits to Canada's national police force, and had the power to shut down their careers. For two years, Henderson felt haunted and alone -- until a chance meeting with Sylvie Corriveau and Vicki Gravelle, two other new recruits who alleged they had also been sexually assaulted by Macdougall. Henderson, Corriveau and Gravelle vowed to stop him. They complained to RCMP bosses, Toronto police and medical regulators. But their faith in authority was shattered, they say, when the entire affair was "swept under the carpet." For nearly three decades, nothing happened. But in response to pressure from the three women, as well as headlines about the #MeToo movement, Toronto police reopened their investigation in 2018, and have since interviewed dozens of additional complainants. Yet, there has been no discernible progress, and the three women are growing impatient. Corriveau filed a new $135-million class action suit against the federal government on behalf of anyone victimized by abusive doctors at the RCMP -- including Macdougall, but also others, including one in Halifax. Henderson, Corriveau and Gravelle are also going public for the first time by telling their story to the CBC. "I want justice. I want him to be charged," said Henderson. "I want him to be shamed in front of his family, his peers, his colleagues. We never thought we would be here today, but for whatever has happened with the #MeToo movement. It's time." But time for justice is running out. That's because Macdougall, who is in his mid-80s, is on his deathbed, no longer of sound mind. 'Dr. Tweakers' After her traumatic medical exam in 1987, Helen Henderson would often pass Macdougall in the hallways of the RCMP building in Toronto. It distressed her so much that she demanded a transfer. It was at her new post at the RCMP's Toronto airport detachment that she met Sylvie Corriveau and Vicki Gravelle. It was the fall of 1989, and the two recruits had been on the job for just a week or two. The trio got to talking, and it turned out they had all endured nearly identical, invasive medical exams from Macdougall, which were supposed to determine their fitness for duty. The trio dubbed him "Dr. Tweakers," recounting how Macdougall spent considerable time probing their breasts and pinching their nipples in what he called "tweak tests." They also recalled him caressing their legs and backs, and conducting vaginal exams that left them feeling violated. "This entire encounter felt more like a sexual encounter than a medical encounter," Corriveau told CBC News, explaining she worked as a paramedic before being hired by the RCMP. "He's rubbing my legs up and down. He commented on how soft they were," she said. "I'm thinking, You're touching me. You've not washed your hands. You don't have gloves. You're into my private parts. It's something that I've never seen and it's completely wrong. I was flabbergasted." Gravelle recalled a similar exam, in which Macdougall pressed up against her naked body during a test he assured her was to measure her spine. "I just have a gown on and he stands directly behind me, with his body touching right up against me, and [asks me] to bend over, and starts feeling every little notch in my spine. [He] takes hold of my hips, turns them, wiggles them." "I'm questioning him along the way, trying to get him to stop, or to say, 'Why are you doing this? Because I have a gynecologist I see that has done these examinations [already]. You can have the paperwork.'" Corriveau said Macdougall was "using his authority for his sexual gratification," and emphasized during the exam that he had "the last say in whether or not . . . you get this job." Macdougall retired in 2001 and now lives in a retirement residence west of Toronto. According to his lawyer, he has dementia, suffered near-fatal pneumonia last month and is currently living with around-the clock care. A lawyer for Macdougall and his family declined CBC's requests for comment. The 'cover-up' When the three women gave detailed statements to Toronto police in November of 1989, they expected to be taken seriously. But instead of any follow-up from the Toronto force, their male bosses at the RCMP stepped in a month later and announced there was no basis for any criminal charges, and that Macdougall would be dealt with internally. "The practices carried out by the medical examiner fall within policy guidelines of the RCMP," an RCMP Superintendent wrote to the three women. Nonetheless, the Superintendent promised a full internal investigation. That was four days before Christmas. By late January, RCMP commanders closed the file, never having spoken to the women, according to the trio. "Absolutely, they covered it up," Henderson said. She was so disgusted that within two years, she quit the RCMP. CBC was unable to reach those senior RCMP officers. The investigation may have been shut down, but RCMP bosses were still concerned enough to issue a directive to all medical staff in January 1990. CBC News has obtained that memo. It set out rules for proper breast exams, ordered a halt to all internal exams and told staff doctors to instead rely on medical reports from patients' gynecologists. 'He got extremely mad' The RCMP kept Macdougall on the job, where he appears to have ignored the new directives. One alleged victim, Brenda Di iorio, said her male supervisor cautioned her to be on guard when she reported to Macdougall for a simple eye exam in the summer of 1990. When Di iorio arrived, she said Macdougall instructed her to remove all of her clothing. When she refused, Di iorio said Macdougall flew into a rage, throwing a stethoscope at her and swiping the papers from his desk. "He got extremely mad," Di iorio said. "He was saying to me, like, 'Who do you think you are? You don't undermine me! I could have your career.'" Di iorio said she ran from the office in tears, immediately reporting it to her direct supervisor, who alerted senior police leaders. Around the same time, 22-year-old Laurel Hodder, a new recruit, arrived on Macdougall's doorstep armed with medical records from her personal doctor. She said Macdougall insisted she undergo a vaginal exam, during which, she alleges, he sexually assaulted her. "I felt very disgusted," Hodder said. The exam "was something I needed to have done, or I assumed that I needed to have done in order to get the job. I just was creeped out by it, but I kept quiet." Hodder worked for the Mounties for almost three decades, but took early retirement last year after learning, after all these years, that RCMP brass had known of previous complaints against Macdougall, and still sent her to him in the summer of 1990. "Nobody warned me. They sent me there to this monster," she said. Hodder filed a lawsuit against Macdougall and the federal government in July 2018, accusing the RCMP of failing to protect her from a known threat. Case was 'withdrawn' Back in 1990, the women who filed the original complaint turned to the College of Physicians and Surgeons of Ontario. Believing the RCMP were actively suppressing any real investigation, Henderson, Corriveau and Gravelle hoped Ontario's medical regulator would strip Macdougall of his doctor's licence. The CPSO investigated and asked Macdougall to respond to the allegations. In a detailed defence obtained by CBC News, Macdougall wrote that during exams on recruits, he taught what he called proper "breast self-examination technique." "I choose to introduce instruction at this medical opportunity because I have the time, because my readings in medical publications indicate poor attention paid by professionals to this important topic," Macdougall wrote in his seven-page response. He also wrote that he was "deeply disappointed that the applicants, subject of this investigation, have felt in any way mistreated." The CPSO ordered Macdougall to appear at a formal disciplinary hearing in June 1992, but at the last minute, the case was mysteriously "withdrawn." CBC News has obtained an internal CPSO letter showing the college negotiated some sort of "final agreement" with the doctor. But large portions of the record are redacted, and the college will not discuss what happened. That letter between the CPSO prosecutor and a director at the college states the three women became scared and were no longer willing to testify against Macdougall, making a hearing impossible. That prosecutor, who is now retired, told CBC News she has no memory of the case. But after reviewing her letter, she said it appears the women got "cold feet." Henderson, Corriveau and Gravelle say they never spoke to any prosecutor, and certainly never backed down. "This never happened! No one remembers it this way," said Corriveau. The CPSO declined to answer questions about what "final agreement" was reached in the case. 'I blame everyone' Macdougall left the RCMP in 1992, around the time the CPSO case was dropped. He continued to practise as a doctor, holding a licence until 2001. He also worked for several years as a staff physician at Ontario Hydro. Henderson feels "defeated" and "deflated" by the current state of Macdougall's health. "It makes it feel it's almost too late as far as him being punished for what he did," Henderson said. Even so, she said "it's important that it's still revealed. Whether it hits him, whether he understands what's happening, there's still a really huge part of this story that needs to be revealed: accountability." Toronto Police won't discuss the current investigation into Macdougall or comment on whether they intend to lay charges. They did, however, say about 30 complainants have come forward since they reopened the case in early 2018. The RCMP declined to comment on their handling of the case, citing the renewed police investigation. The reason Corriveau filed a class action suit against the federal government last week is that she and Gravelle did not qualify for compensation under a previous RCMP sexual abuse settlement because they weren't technically RCMP employees at the time of their exams. Helen Henderson did qualify for compensation and received a cheque last month. The difference between her and the other two women is that Henderson was already employed by the RCMP and was applying for a promotion when she encountered MacDougall. The new lawsuit takes aim at any abusive RCMP doctor, and specifically cites Macdougall as well as Douglas Campbell, a former RCMP doctor in Halifax accused of abusing 140 women and men while working for the Mounties. Three decades later, Corriveau still marvels at the lack of accountability across multiple agencies. "I blame everyone: Toronto police, the RCMP and the College of Physicians," said Corriveau. "Their lack of action . . . resulted in more females being sexually assaulted. They could have stopped this and they failed to do so." "I think that we need to complete the circle and finish what we started 30 years ago." [GN] CANARY: Facing Class-Action Lawsuit Over Monthly Monitoring Fee --------------------------------------------------------------- CE Pro Editors reports that when a customer invests money in a product that is supposed to offer a certain set of features for no fee, they expect it to stay that way. Canary is now finding that out the hard way. A group of Canary consumers, led by irate customer Jeff Reifman, have come together to file a class-action lawsuit against the DIY smart home camera company. The lawsuit says Canary is guilty of pulling a "bait and switch" by offering features that did not require monthly or subscription fees. Then in Oct. 2017, these features suddenly required a $120 annual subscription, according to court documents. "Plaintiffs and other consumers purchased the Products reasonably believing that all key features included with their initial purchase would remain available without any future cost," the lawsuit says. "Had Plaintiffs and other consumers known that Canary would remove the Product's features and place them behind a paywall, they would not have purchased the Products or would have paid significantly less for the Products." Prior to the "switch," customers were able to view previously recorded videos, download clips and access a "night mode." These features now require a subscription, with only 30-second video clips after motion is detected, one-day video history and 24/7 live check-in available for free. Canary debuted in 2013 as a crowdfunded project on Indiegogo. It would end up raising nearly $2 million, or 1961% of its goal. Its products are now sold at various retailers such as Best Buy and Amazon. Canary isn't the only smart home security company to land in legal trouble recently. Last year and earlier this year, Ring was hit with lawsuits for allegedly stealing intellectual property. [GN] CIT BANK: Court Junks Tortious Interference Claims in M. Gray Suit ------------------------------------------------------------------ The United States District Court for the District of New Jersey, Camden Vicinage, issued an Opinion granting in part and denying in part Defendant's Motion to Dismiss the Amended Complaint in the case captioned MONICA GRAY, EXECUTRIX, ET AL., Plaintiffs, v. CIT BANK, N.A., ET AL., Defendants. Civil No. 18-1520 (RMB/AMD). (D.N.J.). The Plaintiffs bring this putative class action suit alleging that the Defendants conspired to: (1) overcharge the Plaintiffs in connection with forced-placed hazard insurance and (2) charge unnecessary property inspection fees. The Amended Complaint asserts nine counts: (1) Monica Gray, Executrix v. Financial Freedom and CIT, breach of contract (2) Monica Gray, Executrix v. Financial Freedom and CIT, breach of the duty of good faith and fair dealing (3) all Plaintiffs v. Financial Freedom and CIT, violation of the New Jersey Consumer Fraud Act (NJ CFA) (4) all Plaintiffs v. the Insurer Defendants, violation of the NJ CFA (5) all Plaintiffs v. all Defendants, civil conspiracy (6) Monica Gray, Executrix v. the Insurer Defendants, tortious interference (7) all Plaintiffs v. all Defendants, violation of RICO (8) all Plaintiffs v. all Defendants, violation of RICO and (9) Monica Gray, Executrix v. CIT, violation of the Truth in Lending Act (TILA). The Insurer Defendants' motion will be granted as to the tortious interference claim and denied in all other respects; and the other Defendants' motion will be denied. Standing The Court finds that Justin Gray and Jasmine Gray-Oliver have sufficiently pled that they have personally suffered injuries for which they may pursue the NJ CFA and conspiracy claims for a limited time frame. The Amended Complaint alleges that in 2017, when Justin and Jasmine were the property owners and responsible to satisfy Financial Freedom's mortgage lien, Financial Freedom charged the mortgage account for insurance charges in the amount of $2,357.06 for the period 11/02/2017 to 11/02/2018. Accordingly, the Motions to Dismiss Justin Gray and Jasmine Gray-Oliver's NJ CFA and conspiracy claims for lack of standing will be denied. As to the RICO claims, the Court holds that the Plaintiffs' alleged facts are sufficient, at the pleadings stage, to establish the standing of Plaintiffs Justin Gray and Jasmine Gray-Oliver. The Motions to Dismiss for lack of standing will be denied. HOLA Preemption Financial Freedom and CIT assert that all of the state law claims asserted against them (Counts 1-3, and 5) are preempted by the Home Owners' Loan Act (HOLA) and its implementing regulations, specifically in this case. The Court disagrees. While neither the Supreme Court, nor the Third Circuit, has ruled on the preemptive effect of these specific regulations on the state law claims asserted here6, a clear consensus emerges from the persuasive authorities that have addressed these issues. Turning to the allegations of the Amended Complaint, it is plain that Count 1, the breach of contract claim, is a traditional common law breach of contract claim. Financial Freedom and CIT's assertion to the contrary notwithstanding, Monica Gray asserts that Financial Freedom and CIT violated two express provisions of the mortgage contract. First, she asserts that by allegedly (a) charging the cost of the force-placed insurance premiums plus an allegedly undisclosed unearned commission or kickback, and (b) over-insuring the property at issue, Financial Freedom and CIT violated the mortgage contract provision which states that Lender may do and pay whatever is necessary to protect the value of the Property and Lender's rights in the Property, including the payment of taxes, hazard insurance and other items. Second, Monica Gray asserts that the inspection fee charges violate the mortgage contract provision concerning property inspections. That provision states: Lender may inspect the Property in a reasonable manner provided that the purpose for the inspection must be related to the Lender's interest in the Property. Plaintiff asserts that because the property was not vacant, Plaintiffs were in contact with Financial Freedom, and that inspection fees were generated automatically by the default status of the loan, the inspections were not reasonable and therefore in breach of" the inspection fee provision of the mortgage contract. Both of these claims allege only that Financial Freedom and CIT failed to honor their contractual promises, therefore the Court holds that such claims only incidentally affect the lending operations of Federal savings associations and are not preempted. Logically, the same result should obtain as to the breach of good faith and fair dealing claim (Count 2), which, for purposes of the HOLA preemption analysis, is not meaningfully distinguishable from the breach of contract claim. Plaintiff explains in her opposition brief that her good faith and fair dealing claims are premised on the same conduct as her breach of contract claims. The Court thus holds that the good faith and fair dealing count is not preempted by HOLA. Similarly, as to the New Jersey Consumer Fraud Act claim (Count 3), courts have held that claims under state consumer protection statutes that are based on conduct which is simultaneously an alleged breach of contract, as well as allegedly violative of the state consumer protection statute, are not preempted by HOLA. Thus, the Court holds that Count 3, the NJ CFA claim against CIT and Financial Freedom, is not preempted by HOLA. Lastly, Financial Freedom and CIT make no argument for preemption of the conspiracy claim (Count 5) that is independent of the NJ CFA claim discussed above. Because the NJ CFA claim survives, this claim survives as well. The Court holds that none of the state law claims, as pled, asserted against CIT and Financial Freedom in this suit are preempted by HOLA. Breach of Contract/Breach of Good Faith and Fair Dealing In addition to HOLA preemption, Financial Freedom and CIT also assert that the breach of contract claim, and the good faith and fair dealing claim, fail on the merits. They argue that: (1) the mortgage was not breached (2) Plaintiff failed to perform under the mortgage and (3) Plaintiff has not alleged damages. All three arguments fail at this pleadings stage. First, Plaintiff Monica Gray asserts that two specific provisions of the mortgage contract were breached in three different ways. CIT's and Financial Freedom's arguments to the contrary misunderstand Plaintiff's claims. Plaintiff does not, as Defendants assert, base her breach of contract claims on allegations that CIT and Financial Freedom placed insurance on the Property and backdat[ed] coverage and she does, indeed, challenge the inspection activity in her breach of contract count. Likewise, Defendants misunderstand the good faith and fair dealing claim. As already stated, Plaintiffs do not assert that Defendants had no right to place insurance on the Property when Mr. Gray failed to do so. Second, while it is undisputed that Gray and his successors-in-interest did not obtain the requisite hazard insurance on the property and did not pay the property taxes, those facts do not legally bar the breach of contract claim. Upon each failure to obtain hazard insurance and failure to pay taxes, Defendants elected their remedies as provided in the mortgage contract at first charging the mortgage account for the costs and later declaring a default and commencing a foreclosure action. It is not alleged that CIT/Financial Freedom elected to terminate the mortgage contract upon the failure to obtain insurance or pay taxes. Third, the Defendants argue that the Plaintiff has not alleged damages because it is not alleged that anyone ever paid the alleged excessive, unreasonable or unnecessary charges. As Plaintiff correctly observes, however, the charges resulted in increased indebtedness on the mortgage, which is a quantifiable, concrete injury. The Motion to Dismiss the breach of contract and good faith and fair dealing claims (Counts 1 and 2) will be denied. New Jersey Consumer Fraud Act All Defendants move to dismiss the NJ CFA claims (Counts 3 and 4) asserting that Plaintiffs fail to allege: (1) a misrepresentation (2) an unconscionable commercial conduct and (3) an ascertainable loss. The Court disagrees. The NJ CFA provides, in relevant part, "The act, use or employment by any person of any unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation, or the knowing, concealment, suppression, or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise or real estate, or with the subsequent performance of such person as aforesaid, whether or not any person has in fact been misled, deceived or damaged thereby, is declared to be an unlawful practice." With respect to argument (1), like their arguments as to the breach of contract claims, Defendants misperceive the nature of Plaintiffs' claims. Plaintiffs do not complain of the fact that hazard insurance was force-placed on the property at issue, and therefore they do not complain about actions that were specifically contemplated and disclosed in the mortgage contract. Rather, Plaintiffs assert that the cost of the force-placed insurance was misrepresented because that cost includeed extraneous charges resulting from the alleged unearned compensation kickback scheme. With respect to argument (2), the Court disagrees that Plaintiffs' NJ CFA claim which is based upon the alleged unnecessary inspection fees fails for lack of a deceptive element. Plaintiffs allege that CIT and Financial Freedom misrepresented the circumstances under which they would inspect the property. This is sufficient at this stage of the case, although just barel, to state a claim for violation of the NJ CFA based on an alleged unconscionable commercial practice. Lastly, with respect to argument (3), consistent with the Court's discussion above concerning the damages resulting from the breach of contract claim, the Court holds that the Amended Complaint sufficiently pleads an ascertainable loss. The alleged increased indebtedness that resulted from the alleged excessive, unreasonable or unnecessary charges associated with the force-placed insurance and property inspections is an ascertainable loss under the standard discussed in Alpizar-Fallas. Thus, the Court holds that the Amended Complaint sufficiently pleads an ascertainable loss. Accordingly, the Defendants' Motions to Dismiss the NJ CFA claims will be denied. Conspiracy The Defendants briefly argue in conclusory fashion that the conspiracy claim (Count 5) fails because it does not adequately allege an underlying fraud or a valid underlying tort claim. The Plaintiffs have stated claims for violation of the NJ CFA. The Defendants' argument as to the conspiracy claim fails. The Motions to Dismiss the conspiracy claim will be denied. RICO The Defendants assert that the RICO claims (Counts 7 and 8) are time-barred and that they fail on the merits. As to the statute of limitations issue, the Plaintiffs contend that equitable tolling applies, or that the injury discovery rule delays the accrual of their claims. The Defendants disagree, but do so relying on an opinion deciding a motion for summary judgment, Weiss v. Bank of America, 2016 WL 6879566 (W.D.Pa. Nov. 22, 2016), and evidence outside the pleadings, namely, the Balettie Declaration. The Defendants' argument in this regard demonstrates that the statute of limitations issue one in which they ultimately may prevail is better decided after discovery. The Amended Complaint specifically alleges that in notices that were mailed to the Plaintiffs in 2010 through 2016, the Defendants actively misled the Plaintiffs to believe that the Defendants were only imposing charges authorized by the mortgage. This is sufficient, at the pleadings stage, to nudge the equitable tolling issue past the line of possible, and into the realm of plausible. Thus, the Court declines to rule on the issue now. Turning to the merits, the Defendants assert that the Amended Complaint suffers from four deficiencies: failure to particularly allege (1) an injury (2) CIT's participation in the conduct of an enterprise (3) any predicate act of mail or wire fraud and (4) the existence of an association-in-fact enterprise. With regard to the injury argument, the Court will not belabor the point. As discussed above with regard to the damages element of the breach of contract claims, and the ascertainable loss element of the NJ CFA claims, Plaintiffs have sufficiently pled an injury in the form of increased indebtedness. The Motions to Dismiss the RICO claims will be denied. TILA CIT asserts that the TILA claim (Count 9) is time-barred. Plaintiffs respond that equitable tolling should apply based on the misrepresentations alleged in the Amended Complaint. CIT replies that Plaintiffs must nonetheless demonstrate that they exercised reasonable diligence. As set forth above, equitable tolling is more appropriately addressed on a developed record rather than at the pleadings stage. Accordingly, like the RICO statute of limitations issue, the Court declines to rule on the TILA statute of limitations issue at this time. CIT's Motion to Dismiss the TILA claim (Count 9) will be denied. Tortious Interference Lastly, the Insurer Defendants assert that the tortious interference claim should be dismissed for lack of allegations supporting a plausible conclusion that the Insurer Defendants acted with malice. In the context of a tortious interference claim, malice is not used in its literal sense to mean ill will; rather, it means that harm was inflicted intentionally and without justification or excuse. Thus, the Insurer Defendants assert that the Amended Complaint does not allege facts supporting a plausible conclusion that the Insurer Defendants intended to interfere with the mortgage contract at issue. The Court agrees. While the Plaintiffs' Supplemental Brief points to the Amended Complaint's expanded factual allegations in support of the tortious interference claim, namely, that the Insurer Defendants allegedly drafted and mailed letters that allegedly misrepresented what Plaintiffs were being charged none of those facts support a conclusion that the Insurer Defendants intended for CIT and Financial Freedom to allegedly charge Plaintiffs more than the cost of the insurance and to allegedly conduct unwarranted inspections of the property. Accordingly, the Insurer Defendants' Motion to Dismiss the tortious interference claim will be granted. A full-text copy of the District Court's December 27, 2018 Opinion is available at https://tinyurl.com/y9fa8hdp from Leagle.com. MONICA GRAY, AS EXECUTRIX OF THE ESTATE OF EARL GRAY, JR. AND TRUSTEE OF THE INTEREST OF JASMINE GRAY-OLIVER & JUSTIN GRAY, on behalf of themselves and all others similarly situated, Plaintiffs, represented by CATHERINE E. ANDERSON -- canderson@gslawny.com -- GISKAN SOLOTAROFF & ANDERSON LLP & ROOSEVELT N. NESMITH, LAW OFFICE OF ROOSEVELT N. NESMITH, LLC. CIT BANK, N.A., Defendant, represented by LOUIS SMITH -- smithlo@gtlaw.com -- GREENBERG TRAURIG, LLP, REBECCA GARIBOTTO ZISEK -- zisekr@gtlaw.com -- GREENBERG TRAURIG LLP & AARON VAN NOSTRAND -- vannostranda@gtlaw.com -- GREENBERG TRAURIG LLP. QBE INSURANCE CORPORATION, QBE FIRST INSURANCE AGENCY, INC. & MIC GENERAL INSURANCE CORPORATION, Defendants, represented by CHARLES J. FALLETTA -- cfalletta@sillscummis.com -- SILLS CUMMIS & GROSS. CLEAR MANAGEMENT: Court Denies Summary Ruling Bid in Morrison Suit ------------------------------------------------------------------ In the case, AIMEE MORRISON, Plaintiff, v. CLEAR MANAGEMENT SOLUTIONS, Defendant, Case No. 1:17-cv-51 (D. Utah), Judge Clark Waddoups of the U.S. District Court for the District of Utah, Central Division, (i) granted the Plaintiff's Motion to Certify Class; (ii) denied the Defendant's Motion for Summary Judgment; and (iii) granted the Plaintiff's Motion for Summary Judgment. Morrison alleges that she and other similarly situated individuals received collections letters from CMS that violated the Fair Debt Collection Practices Act and the Utah Consumer Sale Practices Act. CMS argues that it did not violate the FDCPA because it is not a debt collector and therefore does not fall under the Act. The court heard oral argument on June 28, 2018. Morrison's three children received medical services from Utah Imaging Associates July 7, 2016. UIA charged her $36 per child, but based on UIA standard practice and believing her insurance would cover them, Ms. Morrison did not pay UIA. No party has provided evidence that Ms. Morrison entered a contract with UIA, leaving the court to conclude that UIA provided the medical services without an express contract and that no contract exists providing the terms for payment. UIA then sent Morrison a bill for $36 per child on July 17, 2016. The bill stated she's responsible for payment in full within 20 days. Morrison again did not make a payment, and UIA sent a second bill to Ms. Morrison on Aug. 21, 2016, bearing the warning that it's her final notice. Failure to pay the balance in full within 15 days may result in further collection action. On Oct. 13, 2016, UIA assigned Morrison's three accounts to CMS. On Oct. 14, 2016, CMS sent Ms. Morrison three identical letters—one for each child's account. The letters indicate that CMS is a billing service. They also say no interest has accrued and that accrual can be avoided by paying one's account in full. Although no interest had accrued at the time the letter was sent to Morrison, interest began accruing on Oct. 13, 2016. After receiving CMS' letter, Morrison did not pay. And on Nov. 21, 2016, her three accounts were assigned to Express Recovery Services ("ERS"), a debt collector and is licensed as such in the state of Utah. The ERS letters dated Nov. 21, 2016, are not at issue. Morrison has since paid off each of the three accounts. In their respective statements of facts, the parties make competing representations about the role CMS played in the collection of Ms. Morrison's debt to UIA. Before the court is the Defendant's Motion for Summary Judgment, Morrison's Motion to Certify Class, and Morrison's Motion for Summary Judgment. Ms. Morrison seeks certification of the classes of all persons with addresses within Utah; who were sent any communication which was similar or identical to the Plaintiff's Exhibit A on behalf of Utah Imaging Associates; to recover a consumer debt; in which the initial communication failed to provide the notice required by 15 U.S.C. Section 1962g and/or 15 U.S.C. Section 1692e(11); which were not returned undelivered by the United States Postal Service; from April 11, 2016 until April 11, 2017. Having concluded that the 23(a) and 23(b) requirements are met and exercising its duty under Rule 23(c)(1)(B), Judge Waddoups defines the class to include all persons with addresses within Utah; who were sent any communication which was similar or identical to the Plaintiff's Exhibit A on behalf of Utah Imaging Associates; to recover a consumer debt; in which the initial communication failed to provide the notice required by 15 U.S.C. Section 1962g and/or 15 U.S.C. Section 1692e(11); which were not returned undelivered by the United States Postal Service; from April 11, 2016 until April 11, 2017. The class action will resolve whether CMS violated the FDCPA by failing to provide such notices and whether that its failure to comply with the FDCPA constitutes a violation of the UCSPA. Finally, he appointed Ms. Aimee Morrison as the class representative, and her counsel, David McGlothlin of Hyde & Swigart and Ryan McBride of Kazerouni Law Group, as the class counsel. With respect to the cross motions for summary judgment of the FDCPA and UCSPA claims, the parties agree that resolution of the claims turns on whether CMS was a "debt collector," as used in the FDCPA, and a "person" or "supplier," as used in the UCSPA, when it sent the letters about which Ms. Morrison complains. CMS stipulates that the letters do not contain the disclosures that the FDCPA Sections 1692e(11) and 1692g require debt collectors to include. Ms. Morrison contends that without these disclosures, the letters CMS sent to Ms. Morrison and others violate the FDCPA and UCSPA. CMS counters that, because the debt was not in default, it was not acting as a debt collector, is not regulated by the identified statutory schemes, and was not required to include the disclosures, which it concedes are absent. Judge Waddoups concludes that the debts were in default by the time CMS obtained them. His conclusion is further supported by the fact that the debt began accruing interest upon its transfer to CMS. None of the facts are in dispute, allowing the court to find as a matter of law that the debt was in default. Because CMS/ERS is otherwise a debt collector, the court concludes its conduct must comply with the FDCPA, and the failure to do so in this case violated the statute. For these reasons, he denied CMS' Motion denied and granted Morrisons' on the issue of an FDCPA violation. Finally, while he agrees that CMS acted deceptively, the Judge holds that there is not a factual basis for him to conclude as a matter of law that CMS' misconduct rises to the level of unconscionability. Rather, Morrison has simply repackaged the CMS' allegedly deceptive conduct and called it unconscionable. Nevertheless, because CMS acted deceptively, the Judge is persuaded that it violated the UCSPA and Morrison is entitled to summary judgment on that question. For these reasons stated, Judge Waddoups (i) certified the class proposed by Morrison; (ii) denied CMS' Motion for Summary Judgment, and (iii) granted Morrison's Motion for Summary Judgment. A full-text copy of the Court's Jan 4, 2019 Memorandum Decision and Order is available at https://is.gd/gZ1DqG from Leagle.com. Aimee Morrison, on Behalf of Herself and Others Similarly Situated, Plaintiff, represented by David J. McGlothlin -- david@westcoastlitigation.com -- HYDE & SWIGART, pro hac vice, Scott G. Nance, DAN WILSON AND ASSOCIATES & Ryan L. McBride -- ryan@kazlg.com -- KAZEROUNI LAW GROUP. Clear Management Solutions, Defendant, represented by Joseph J. Lico -- joseph@patriciajostone.com -- PATRICIA JO STONE PC. CLUBHOUSE DINER: Class Certification Sought in Viscomi Suit ----------------------------------------------------------- The Plaintiffs in the lawsuit titled CAROL VISCOMI, PATRICIA HATCH, & SUSAN KENNEDY, individually and on behalf of all others similarly situated v. CLUBHOUSE DINER, CLUBHOUSE BENSALEM HOLDING, INC., CLUBHOUSE BENSALEM, LLC, ESAM SALAH & MEYLINDA ARDHYANI, Case No. 2:13-cv-04720-JD (E.D. Pa.), move the Court for an order granting their Motion for Class Certification.[CC] The Plaintiffs are represented by: Patrick G. Murphy, Esq. Edward J. Murphy, Jr., Esq. MURPHY & ASSOCIATES 640 Sentry Parkway, Suite 100 Blue Bell, PA 19422 Telephone: (215) 643-6500 E-mail: pmurphy@pgmurphy.com emurphy@pgmurphy.com One of the Plaintiff's attorneys certifies that a copy of the Plaintiffs' Motion for Class Certification was served upon this attorney of record: John F. Innelli, Esq. JOHN F. INNELLI, LLC Two Penn Center, Suite 1300 Philadelphia, PA 19102 Telephone: (215) 561-1011 E-mail: jinnelli@innellilaw.com CMRE FINANCIAL: Accused by Bonaventure of Calling Without Consent ----------------------------------------------------------------- EMMA BONAVENTURE, individually and on behalf of all others similarly situated v. CMRE FINANCIAL SERVICES, INC., Case No. 8:19-cv-00055-JLS-DFM (C.D. Cal., January 9, 2019), alleges that in violation of the Telephone Consumer Protection Act, the Defendant makes calls using an automatic telephone dialing system ("ATDS") or prerecorded voice to cellular telephone numbers whose owners have not provided prior express consent to receive such calls. CMRE Financial Services, Inc., is a California corporation with its principal place of business in Brea, California. The Defendant is registered to do and is doing business in California and throughout the United States. CMRE provides accounts receivables management services to healthcare organizations.[BN] The Plaintiff is represented by: Daniel L. Warshaw, Esq. Michael H. Pearson, Esq. PEARSON, SIMON & WARSHAW, LLP 15165 Ventura Boulevard, Suite 400 Sherman Oaks, CA 91403 Telephone: (818) 788-8300 Facsimile: (818) 788-8104 E-mail: dwarshaw@pswlaw.com mpearson@pswlaw.com - and - Beth E. Terrell, Esq. Jennifer Rust Murray, Esq. TERRELL MARSHALL LAW GROUP PLLC 936 North 34th Street, Suite 300 Seattle, WA 98103-8869 Telephone: (206) 816-6603 Facsimile: (206) 319-5450 E-mail: bterrell@terrellmarshall.com jmurray@terrellmarshall.com - and - Syed Ali Saeed, Esq. SAEED & LITTLE, LLP 1433 North Meridian Street, Suite 202 Indianapolis, IN 46202 Telephone: (317) 614-5741 Facsimile: 1-888-422-3151 E-mail: ali@sllawfirm.com COACH INC: Vaughn's Bid to Certify Denied; Jan. 29 Case Conf. Set ----------------------------------------------------------------- The Hon. Vince Chhabria denies the Plaintiff's renewed motion for class certification in the lawsuit styled MARTHA VAUGHN v. COACH, INC., Case No. 3:16-cv-04633-VC (N.D. Cal.). A further case management conference is scheduled for January 29, 2019, at 1:30 p.m. The parties must provide an updated case management statement by January 22, 2019. Judge Chhabria opines that Ms. Vaughn has not established that she would be an adequate representative for the proposed class. Most glaringly, Judge Chhabria avers, the revised class definition excludes Ms. Vaughn. Judge Chhabria points out that Ms. Vaughn cannot adequately represent the class if she is not a class member. Even if Ms. Vaughn were an adequate representative, she has not established that common issues would predominate over individual issues, Judge Chhabria also opines. Judge Chhabria adds that Ms. Vaughn has not shown that there is common proof of misclassification. Hence, the Motion is denied.[CC] COMMONWEALTH FINANCIAL: Davis Sues Over Deceptive Debt Collection ----------------------------------------------------------------- FELECIA DAVIS, individually and on behalf of all others similarly situated v. COMMONWEALTH FINANCIAL SYSTEMS, INC., PENDRICK CAPITAL PARTNERS II, LLC and JOHN DOES 1-25, Case No. 2:19-cv-00296 (D.N.J., January 9, 2019), accuses the Defendants of violating the Fair Debt Collection Practices Act by engaging in deceptive, misleading and false debt collection practices. Commonwealth Financial Systems, Inc., is a "debt collector" with an address at 245 Main Street, in Dickson City, Pennsylvania. Pendrick Capital Partners II, LLC, is a "debt collector" with an address at 6029 Ridge Ford Drive, in Burke, Virginia. The identities of the Doe Defendants are currently unknown to the Plaintiff. The Corporate Defendants use mail, telephone, and facsimile and regularly engage in business the principal purpose of which is to attempt to collect debts alleged to be due another.[BN] The Plaintiff is represented by: Yaakov Saks, Esq. STEIN SAKS, PLLC 285 Passaic Street Hackensack, NJ 07601 Telephone: (201) 282-6500 Facsimile: (201) 282-6501 E-mail: ysaks@steinsakslegal.com CORELOGIC INC: Stevens Files Petitions for Writ of Certiorari ------------------------------------------------------------- Plaintiffs Robert Stevens, et al., filed with the Supreme Court of United States petitions for a writ of certiorari in the matter styled Robert Stevens, et al., Petitioners v. CoreLogic, Inc., Case No. 18-878. Responses are due on February 8, 2019. The Lower Court Case is titled Robert Stevens, et al., Petitioners v. CoreLogic, Inc., Case No. 16-56089, in the United States Court of Appeals for the Ninth Circuit. The District Court case is captioned Robert Stevens, et al., Petitioners v. CoreLogic, Inc., Case No. 3:14-cv-01158- BAS-JLB, in the U.S. District Court for the Southern District of California. As previously reported in the Class Action Reporter, Plaintiffs Robert Stevens, Steven Vandel, and Affordable Aerial Photography, Inc., allege that Defendant CoreLogic, Inc. falsified, removed, or altered the Plaintiffs' copyright management information in violation of 17 U.S.C. Sec. 1202. The Plaintiffs are professional photographers who provide real estate photography services to real estate brokers and agents. CoreLogic, a Delaware corporation, is the nation's largest provider of software and technology services to real estate multiple listing services.[BN] Plaintiffs-Petitioners Robert Stevens, et al., are represented by: Joel Benjamin Rothman, Esq. SRIPLAW, PLLC 21301 Powerline Road, Suite 100 Boca Raton, FL 33433 Telephone: (561) 404-4335 E-mail: joel.rothman@sriplaw.com CREDIT BUREAU: Court Denies Bid to Dismiss Bassett FDCPA 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 (i) denied the Plaintiff's motion for partial summary judgment; (ii) denied the Defendants' motion to dismiss and for summary judgment; and (iii) denied as moot the Defendants' motion to strike. 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. 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 the 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. Mr. Bassett passed away on Aug. 7, 2016. The Plaintiff testified that she thought the Defendants' letter was a threat to sue her if she did not pay. Mrs. Bassett expressed confusion several times during her deposition. She reiterates her confusion in her declaration. One of the creditors listed on the collection letter at issue was General Radiology. Its manager testified that General Radiology did not charge interest or add other charges on their accounts. Defendant Tighe was unable to testify to a single "other charge" associated with the Bassett account. There is evidence that one of the creditors listed in the letter to the Bassetts charges interest. The matter is before the Court on the Plaintiff's motion for partial summary judgment, and the Defendants' motion to dismiss and for summary judgment. The Plaintiff seeks summary judgment on the issue of liability -- a determination that the Defendants' collection complaints are false and misleading as a matter of law. She challenges the Defendant CMS' routine practice of sending allegedly false and misleading collections letters. The principal legal question is whether the Defendants' use of letters in the form of Exhibit A to the Complaint violated 15 U.S.C. Sections 1692e (generally prohibiting the use of any false, deceptive, or misleading representation or means in connection with the collection of any debt), e(2)(A) (prohibiting the false representation of the character, amount, or legal status of any debt), and e(10) (prohibiting the use of any false representation or deceptive means to collect or attempt to collect any debt) and the NCPA, which prohibits deceptive acts and practices. She seeks statutory damages, declaratory relief, costs and attorney's fees. She argues that the overall letter is false and misleading in several respects: setting an appointment, stating there will be further collection efforts, setting out two different addresses of the collection company, failing to date the dates of service or to identify the person who received the alleged services and asserting that interest, along with other charges, accrues daily. The Plaintiff also alleges that Defendant Tighe can be held personally liable for the violations. The Defendants move to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), contending that the Plaintiff lacks standing under Article III of the United States Constitution to pursue her claim and a claim on the decedent's behalf. Further, they move to dismiss any claims under Section 1692(g) for failure to state a claim, arguing that the Plaintiff did not allege violations of that subsection in her complaint. The Defendants also move for summary judgment, arguing that undisputed evidence shows the Plaintiff's claims fail as a matter of law because the challenged correspondence is not false or misleading. Judge Bataillon first finds that the Defendants' motion for summary judgment and to dismiss for lack of standing should be denied because the Plaintiff has standing to sue. He is satisfied that the Plaintiff has alleged a concrete, particularized injury sufficient to show standing to bring her claims. He has also reviewed the parties' submissions and finds that the evidence shows a considerable level of subjective confusion on the part of the Plaintiff. Whether the letter would be objectively misleading or deceptive to an unsophisticated consumer is a question for the jury. Also, viewed in the light favorable to the Plaintiff, the evidence shows there are genuine issues with respect to whether the letter was false in that it sought recovery of sums that were not owed. Conversely, the Judge finds that the Plaintiff's motion for a partial summary judgment on liability should also be denied. The issue is whether the correspondence, from the perspective of an unsophisticated consumer, is false or misleading. Resolution of that issue is a question of fact. The Plaintiff has submitted evidence that shows or tends to show that the collection letter suffers from numerous defects that may violate the FDCPA. In particular, she has shown that she may not have owed any interest or additional amounts on the debt, which were alleged to be accruing daily. Based on the foregoing, Judge Bataillon (i) denied the Plaintiff's motion for partial summary judgment; (ii) denied the Defendants' motion to dismiss and for summary judgment; and (iii) denied as moot the Defendants' motion to strike. A full-text copy of the Court's Jan 4, 2019 Memorandum and Order is available at https://is.gd/cf4Q2w 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. DENTSPLY SIRONA: Levi & Korsinsky Files Class Actions Lawsuit ------------------------------------------------------------- Levi & Korsinsky, LLP disclosed that a class action lawsuit has commenced on behalf of shareholders of Dentsply Sirona, Inc. (NASDAQ: XRAY). Shareholders interested in serving as lead plaintiff have until the deadlines listed to petition the court and further details about the cases can be found at the links provided. There is no cost or obligation to you. Class Period: (i) all persons who purchased the common stock of Dentsply Sirona, Inc. (NASDAQ: XRAY) between February 20, 2014 and August 7, 2018; (ii) all Dentsply International Inc. shareholders who held shares as of the record date of December 2, 2015 and were entitled to vote with respect to the Acquisition at the January 11, 2016 special meeting of Dentsply International Inc. shareholders; and (iii) all persons who purchased or otherwise acquired the common stock of Dentsply International in exchange for their shares of common stock of Sirona in connection with the Acquisition Lead Plaintiff Deadline: February 9, 2019 Join the action: https://www.zlk.com/pslra-1/dentsply-sirona-inc-loss-form?wire=3 The complaint alleges that during the Class Period, 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 fact, 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. To learn more about the Dentsply Sirona, Inc. class action contact jlevi@levikorsinsky.com. You have until the lead plaintiff deadlines to request the court appoint you as lead plaintiff. Your ability to share in any recovery doesn't require that you serve as a lead plaintiff. Joseph E. Levi, Esq. Levi & Korsinsky, LLP 55 Broadway, 10th Floor New York, NY 10006 Telephone: (212) 363-7500 Toll Free: (877) 363-5972 Fax: (212) 363-7171 Email: jlevi@levikorsinsky.com [GN] DIAMOND RESORTS: Delara Action to Recover Unpaid Overtime --------------------------------------------------------- Alberto Delara, on behalf of himself and others similarly situated, Plaintiff, v. Diamond Resorts International Marketing, Inc., Defendant, Case No. 19-cv-00022 (D. Nev., January 2, 2019), seeks to recover unpaid overtime compensation, plus an additional equal amount as liquidated damages, as well as attorney's fees and costs pursuant to the Fair Labor Standards Act. Diamond Resorts operates under the trade name Diamond Resorts with over 100 ownership resorts. Delara worked as a non-exempt, commission-paid concierge at their resort in Florida frequently working in excess of forty hours in a workweek without being paid overtime pay, notes the complaint. [BN] The Plaintiff is represented by: Michael N. Feder, Esq. DICKINSON WRIGHT PLLC 8363 West Sunset Road, Suite 200 Las Vegas, NV 89113 Telephone: (702) 550-4440 Facsimile: (844) 670-6009 Email: MFeder@dickinson-wright.com - and - Martin D. Holmes, Esq. Peter F. Klett, Esq. Fifth Third Center, Suite 800 424 Church Street Nashville, TN 37219 Telephone: (615) 244-6538 Facsimile: (844) 670-6009 Email: mdholmes@dickinsonwright.com pklett@dickinsonwright.com DISKOLAB LLC: Accused by Rodriguez Class Suit of Violating TCPA --------------------------------------------------------------- JORGE E. RODRIGUEZ, individually and on behalf of all others similarly situated v. DISKOLAB, LLC, a Florida limited liability company, Case No. 0:19-cv-60060-FAM (S.D. Fla., January 8, 2019), stems from the Defendant's alleged practice of knowingly and willfully violating the Telephone Consumer Protection Act. In order to drum up new business and drive consumers to its music events, the Defendant sent him and others automated telemarketing text messages, Mr. Rodriguez contends. Through this action, he seeks injunctive relief to halt the Defendant's illegal conduct, which has resulted in the invasion of privacy, loss of time, harassment, aggravation, and disruption of the daily life of thousands of individuals. He also seeks statutory damages on behalf of himself and members of the class, and any other available legal or equitable remedies. Diskolab, LLC, is a Florida limited liability company whose principal office is located in Miami Beach, Florida. DiskoLab claims to be a multifaceted laboratory specializing in booking, marketing, and producing nationwide electronic music events, tours, and festivals. Defendant directs, markets, and provides its business activities throughout the State of Florida.[BN] The Plaintiff is represented by: Scott D. Owens, Esq. SCOTT D. OWENS, P.A. 3800 S. Ocean Dr., Suite 235 Hollywood, FL 33019 Telephone: (954) 589-0588 Facsimile: (954) 337-0666 E-mail: scott@scottdowens.com - and - Karl C. Gonzalez, Esq. KARL C. GONZALEZ, PLLC 17113 Miramar Parkway, Suite #152 Miramar, FL 33027 Telephone: (833) 527-5529 E-mail: karl@karlgonzalez.com FAITH AND FREEDOM COALITION: Pickett Hits SMS Ad Blasts ------------------------------------------------------- Amber Pickett, individually and on behalf of all others similarly situated, Plaintiff, v. Faith And Freedom Coalition, Inc., Ralph Reed and Americans of Faith, Case No. 19-cv-00014, (D. Ariz., January 2, 2019), seeks statutory damages and any other available legal or equitable remedies for violations of the Telephone Consumer Protection Act. Faith and Freedom and Americans of Faith operate as non-profit organizations. They transmitted multiple text messages with intent to encourage its recipients to vote. At no point in time did Pickett provide them with his express written consent to be contacted using an automated dialer, says the complaint. [BN] Plaintiff is represented by: Manuel S. Hiraldo, Esq. HIRALDO P.A. 401 E. Las Olas Boulevard, Suite 1400 Ft. Lauderdale, FL 33301 Telephone: (954) 400-4713 Email: mhiraldo@hiraldolaw.com - and - Frank S. Hedin, Esq. HEDIN HALL LLP 1395 Brickell Avenue, Suite 900 Miami, FL 33131 Tel: (305) 357-2107 Fax: (305) 200-8801 Email: fhedin@hedinhall.com - and - Ignacio J. Hiraldo, Esq. IJH LAW 14 NE First Ave., 10th Floor Miami, FL 33132 Tel: (786) 351-8709 Email: ijhiraldo@ijhlaw.com - and - Michael Eisenband, Esq. EISENBAND LAW, P.A. 515 E. Las Olas Boulevard, Suite 120 Ft. Lauderdale, FL 33301 Telephone: (954) 533-4092 Email: MEisenband@Eisenbandlaw.com FCA US: Court Recommends Partial Dismissal of Canfield Suit ----------------------------------------------------------- In the case, TIMOTHY CANFIELD, ANDREW CATTANO, JAMES LETT, DENNIS PECK, STEVEN SPRATLEY, SUSAN STEBBINS, and YVETTE TAYLOR, on behalf of themselves and all others Similarly situated, Plaintiffs, v. FCA US LLC, Defendant, Civil Action No. 17-1789-MN-SRF (D. Del.), Magistrate Judge Sherry R. Fallon of the U.S. District Court for the District of Delaware recommended that the Court grants in part and denies in part the Defendant's motion to dismiss. FCA US is a Delaware limited liability company headquartered in Auburn Hills, Michigan. The complaint alleges that FCA US is the United States subsidiary of Italian multinational automaker Fiat S.p.A. FCA US designs, manufactures, and sells automobiles throughout the United States under various brand names, including the "Jeep," "Dodge," and "Chrysler" brands. The Plaintiffs allege that Chrysler Town & Country, Dodge Grand Caravan, Jeep Liberty, and Dodge Journey vehicles manufactured after June 10, 2009 ("Class Vehicles") are equipped with a defective component -- a copper-bearing aluminum 2000 series metal alloy ("AL2000") valve stem and nut on vehicles equipped with a tire pressure monitoring system ("TPMS"). They allege that the valve stems are defective because they are subject to corrosion when exposed to corrosive elements like road salt. The Plaintiffs allege that when a valve stern fails, air can be rapidly released from the tire without warning," which poses a significant safety risk. The vehicles come with a 3-year/36,000 mile Basic Limited Warranty, a 3-year/unlimited-mileage Corrosion Warranty, a 5-year/100,000 mile Outer-Body Corrosion Warranty, a 5-year/100,000 Powertrain Warranty, and a 8-year/1000,000 mile Emissions Warranty. On Oct. 12, 2017, the Plaintiffs initiated the action by filing a class action complaint in the Superior Court of Delaware. On Dec. 12, 2017, FCA US removed the action to the Court pursuant to 28 U.S.C. Sections 1441 and 1446. On Jan. 18, 2018, FCA US moved to dismiss the original complaint pursuant to Rule 12(b)(6). On Feb. 1, 2018, the Plaintiffs filed an amended complaint ("FAC") in response to the motion. On Feb. 15, 2018, FCA US filed the current motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). The court heard oral argument on May 8, 2018. On Aug. 3, 2016, Plaintiffs Spratley, Canfield, Cattano, Lett, Peck, Stebbins, and Taylor filed a complaint in the U.S. District Court for the Southern District of New York against FCA US. On Jan. 23, 2017, the Southern District of New York transferred the case sua sponte to the U.S. District Court for the Northern District of New York. On Sept. 12, 2017, the Northern District of New York dismissed the plaintiffs' claims for lack of personal jurisdiction with the exception of one plaintiff, Thomas Hromowyk, who is not a named plaintiff in the case at bar. The case remains pending before the Northern District of New York, as to Mr. Hromowyk's claims. Magistrate Judge Fallon recommended granting-in-part and denying-in-part FCA US' motion to dismiss pursuant to Rule 12(b)(6). She recommened that the motion be granted as to (i) Count II (Ohio Consumer Sales Practices Act); (ii) Count III (Ohio Consumer Sales Practices Act); (iii) Count IV (Michigan Consumer Protection Act); (iv) Count V (Michigan Consumer Protection Act); and (v) Count X (Express Warranty). She recommended that the motin be denied as to (i) Count I (New Jersey Consumer Fraud Act); (ii) Count VI (Implied Warranty under Michigan law); (iii) Count VII (Massachusetts Consumer Protection Act); (iv) Count VIII (Massachusetts Consumer Protection Act); and (v) Count IX (Implied Warranty under Massachusetts law). Among other things, the Magistrate finds that (i) the Plaintiffs have adequately pleaded a claim for the violation of NJCFA under the heightened requirements of Rule 9(b); (ii) the Plaintiffs have adequately stated a claim under the OCSPA under Rule 8 standards; (iii) the Plaintiffs do not present any additional arguments as to why Peck's claims are not barred by the six-year statute of limitations under the MCPA; and (iv) the Plaintiffs cite no authority to support its Implied Warranty under Massachusetts Law claim. The Report and Recommendation is filed pursuant to 28 U.S.C. Section 636(b)(1)(B), Fed. R. Civ. P. 72(b)(1), and D. Del. LR 72.1. The parties may serve and file specific written objections within 14 days after being served with a copy of the Report and Recommendation. The objection and responses to the objections are limited to 10 pages each. The failure of a party to object to legal conclusions may result in the loss of the right to de novo review in the District Court. The Magistrate directed the parties to the Court's Standing Order For Objections Filed Under Fed. R. Civ. P. 72, dated Oct. 9, 2013. A full-text copy of the Court's Jan 8, 2019 Report & Recommendation is available at https://is.gd/l1BVJG from Leagle.com. Timothy Canfield, Andrew Cattano, Dennis Peck, Steven Spratley, Susan Stebbins, Yvette Taylor, on behalf of themselves and all others similarly situated & James Lett, Plaintiffs, represented by Peter Bradford DeLeeuw -- bdeleeuw@rmgglaw.com -- Rosenthal, Monhait & Goddess, P.A., Jason S. Rathod -- jrathod@classlawdc.com -- Migliaccio & Rathod LLP, pro hac vice, Jeffrey S. Goddess -- jgoddess@rmgglaw.com -- Rosenthal, Monhait & Goddess, P.A., Jennifer S. Goldstein -- jgoldstein@wbmllp.com -- Whitfield, Bryson & Mason LLP, pro hac vice & Nicholas A. Migliaccio -- nmigliaccio@classlawdc.com -- Migliaccio & Rathod LLP, pro hac vice. FCA US LLC, formerly known as Chrysler Group LLC, Defendant, represented by Somers S. Price, Jr. -- sprice@potteranderson.com -- Potter Anderson & Corroon, LLP, Kathy A. Wisniewski -- kwisniewski@thompsoncoburn.com -- Thompson Coburn LLP, pro hac vice & Stephen A. D'Aunoy -- sdaunoy@thompsoncoburn.com -- Thompson Coburn LLP, pro hac vice. FINISAR CORP: Davis Files Securities Suit Over Sale to II-VI Inc. ----------------------------------------------------------------- William Davis, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. Finisar Corporation, Robert N. Stephens, Thomas E. Pardun, Michael C. Child, Roger C. Ferguson, Jerry S. Rawls, Helene Simonet, Michael L. Dreyer and Michael E. Hurlston, Defendants, Case No. 3:19-cv-00271-WHO (N.D. Cal., January 16, 2019) is a class action by Plaintiff on behalf of himself and the other public holders of the common stock of Finisar Corporation against the Company and the members of the Company's board of directors for their violations of the Securities Exchange Act of 1934 in connection with the proposed acquisition of Finisar by II-VI Incorporated. On November 8, 2018, the Board caused the Company to enter into an agreement and plan of merger, pursuant to which Finisar shareholders will receive for each share of common stock, at the shareholder's election and subject to proration, either: (i) $26.00 in cash; (ii) 0.5546 of a share of II-VI common stock; or (iii) a combination of (A) 0.2218 of a share of II-VI common stock and (B) $15.60 in cash, without interest. On December 28, 2018, in order to convince Finisar shareholders to vote in favor of the Proposed Transaction, the Board authorized the filing of a materially incomplete and misleading Proxy Statement with the Securities and Exchange Commission ("SEC"), in violation of the Exchange Act, asserts the complaint. While the Defendants are touting the fairness of the Merger Consideration to the Company's shareholders in the Proxy, they have failed to disclose certain material information that is necessary for shareholders to properly assess the fairness of the Proposed Transaction, thereby rendering certain statements in the Proxy false and/or misleading, notes the complaint. In particular, the Proxy contains materially incomplete and misleading information concerning Finisar's financial projections, which were developed by the Company's management and relied on by the Board to recommend the Proposed Transaction, it adds. Plaintiff seeks to enjoin Defendants from holding the shareholder vote on the Proposed Transaction and taking any steps to consummate the Proposed Transaction unless, and until, the material information is disclosed to Finisar shareholders sufficiently in advance of the vote on the Proposed Transaction or, in the event the Proposed Transaction is consummated, to recover damages resulting from the Defendants' violations of the Exchange Act. Plaintiff is, and at all relevant times has been, a Finisar shareholder. Finisar is a Delaware corporation and maintains its principal executive offices at 1389 Moffett Park Drive, Sunnyvale, California 94089. Finisar's common stock is traded on the NASDAQ GS under the ticker symbol "FNSR". Robert N. Stephens has been a director of the Company since 2005 and as Chairman of the Board since January 2018. Michael E. Hurlston has been a director of the Company and its Chief Executive Officer since January 2018. Thomas E. Pardun has been a director of the Company since 2009. Michael C. Child has been a director of the Company since 2010. Roger C. Ferguson has been a director of the Company since 1999. Jerry S. Rawls has been a director of the Company since 1989. Helene Simonet has been a director of the Company since 2017. Michael L. Dreyer has been a director of the Company since 2015.[BN] The Plaintiff is represented by: Benjamin Heikali, Esq. FARUQI & FARUQI, LLP 10866 Wilshire Blvd., Suite 1470 Los Angeles, CA 90024 Phone: (424) 256-2884 Fax: 424.256.2885 Email: bheikali@faruqilaw.com - and - Nadeem Faruqi, Esq. James M. Wilson, Jr., Esq. FARUQI & FARUQI, LLP 685 Third Ave., 26th Fl. New York, NY 10017 Phone: (212) 983-9330 Email: nfaruqi@faruqilaw.com jwilson@faruqilaw.com FORD MOTOR: Court Dismisses Wozniak Suit over Defective Lug Nuts ---------------------------------------------------------------- In the case, JOSH WOZNIAK, et al., Plaintiffs, v. FORD MOTOR COMPANY, Defendant, Case No. 2:17-cv-12794 (E.D. Mich.), Judge Stephen J. Murphy, III of the U.S. District Court for the Eastern District of Michigan, Southern Division, granted the Defendant's motion to dismiss the Plaintiffs' first amended class action complaint. On Dec. 5, 2017, the Plaintiffs filed a 120-count amended class action complaint. They allege violations of the Magnuson-Moss Warranty Act and violations of state law in each of the fifty states on behalf of a nationwide class. All claims arise from the Plaintiffs' interactions with Ford as purchasers of Ford vehicles. The Plaintiffs allege that Ford used defectively-designed lug nuts. The defect allegedly causes the lug nuts to deform and swell, which makes them difficult to remove from the tires and impedes changing a flat tire. The Plaintiffs further allege that Ford violated its New Vehicle Limited Warranty by failing to repair or replace the defective lug nuts when customers notified Ford of the issue. The Defendant filed a motion to dismiss on Feb. 5, 2018. The Court held a hearing on the Defendants' motion on Sept. 5, 2018. Judge Murphy finds that the Plaintiffs allege six claims as placeholders -- 24, 34, 41,45, 114, and 120 ("Place-Holder Claims"). The Place-Holder Claims do not assert any claims at all. Therefore, these claims must be dismissed for failure to state a claim. He finds that the Plaintiffs allege violations of the laws of each of the 50 states but present factual allegations on behalf of named Plaintiffs in only 27 states. The named Plaintiffs here do not allege injuries in states other than their own or base their claims on the application of other states' laws. They therefore lack standing to bring claims under the laws of the remaining 23 states. Thus, claims 5, 9, 18, 19, 25, 26, 35, 36, 40, 58, 65, 69, 74, 83, 88, 96, 97, 98, 109, and 1131 must therefore be dismissed for lack of standing. Next, he finds that the Plaintiffs have not alleged facts sufficient to plead a breach of warranty claim under the Magnuson-Moss Warranty Act or under the laws of any of the states in which they allege breaches of an express warranty. The Plaintiffs have failed to adequately plead a breach because they have not pleaded that the named Plaintiff presented their vehicles to a Ford dealership before the earlier of three years or 36,000 miles occurred. Because the warranty expires upon the earlier of the time or mileage limits, they must allege both the timeline between the start of the warranty period and the sought-after repairs and the mileage on their vehicles at the time of presentment. The Judge then finds that the Plaintiffs have not alleged facts sufficient to plead state-law fraud or consumer protection claims. The Plaintiffs' complaint is devoid of any state-law fraud or consumer protection claims based on a misrepresentation theory. They simply have not pleaded any representations related to lug nuts. Finally, the Plaintiffs assert unjust enrichment claims under the laws of several states. The Judge finds that the Plaintiffs fail, however, to allege facts sufficient to establish that Ford obtained any benefit from the complained-of conduct. Because the Plaintiffs fail to allege facts sufficient to plead any unjust enrichment claim, claims 4, 8, 14, 17, 22, 29, 33, 39, 44, 47, 51, 56, 61, 64, 68, 72, 77, 81, 86, 91, 94, 102, 105, 108, 112, 116, and 119 must be dismissed. Accordingly, Judge Murphy concludes that the Plaintiffs have presented no legally viable claims, and he must dismiss the case in its entirety. Therefore, he granted the Defendant's motion to dismiss the Plaintiffs' first amended class action complaint. The case is dismissed. A full-text copy of the Court's Jan 4, 2019 Opinion and Order is available at https://is.gd/lE4fnv from Leagle.com. Josh Wozniak, Angel Castaneda, Raj Chauhan, Robert Desotelle, Samantha Ellis, Donald Lycan & David Mathias, Plaintiffs, represented by Dennis A. Lienhardt, The Miller Law Firm, P.C., E. Powell Miller -- epm@millerlawpc.com -- The Miller Law Firm, Sharon S. Almonrode -- ssa@millerlawpc.com -- The Miller Law Firm, P.C., Thomas Eric Loeser -- toml@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP & Steve W. Berman -- steve@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP. Justin McZeal, Ralph Bents, Lisa Thornburg, Alexander Horton, Dillon Zacharias, Christopher Hutchison, Katherine Cando, Teia Barron, Frank Ay, Michael Raiford, Nathan Petrashek, Joseph Thomas, Steven Brown, Patricia Bonarrigo, Andrew Jackson, Bruce Rahlf, William Sangster, Joseph Nyiri, Gary Beatty, Jr. Randy Maurer, Amy Nace, Kimberly VanderMeeden, Caroline Garland, Toby Elwin, William Brooks, Gregory Johnson, Daniel Wood, Grant Dahlke & John Law, Plaintiffs, represented by Steve W. Berman -- steve@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP. Ford Motor Company, Defendant, represented by Jessica Vartanian Currie, Bush Seyferth and Paige PLLC & Stephanie A. Douglas -- douglas@bsplaw.com -- Bush Seyferth & Paige. FTS USA: Eleventh Circuit Appeal Filed in Estrada FLSA Suit ----------------------------------------------------------- Plaintiff Orlando Estrada filed an appeal from a court ruling in the lawsuit titled Orlando Estrada v. FTS USA, LLC, Case No. 1:14-cv-23388-KMM, in the U.S. District Court for the Southern District of Florida. The lawsuit alleges violations of the Fair Labor Standards Act. As previously reported in the Class Action Reporter, the lawsuit is brought against the Defendant for failure to pay overtime and minimum wages for work performed in excess of 40 hours weekly. The appellate case is captioned as Orlando Estrada v. FTS USA, LLC, Case No. 18-15336, in the United States Court of Appeals for the Eleventh Circuit. The briefing schedule in the Appellate Case is set as follows: -- The appellant's brief is due on or before February 5, 2019; -- The appendix is due no later than 7 days from the filing of the appellant's brief; and -- Appellee's Certificate of Interested Persons is due on or before January 24, 2019, as to Appellee FTS USA, LLC.[BN] Plaintiff-Appellant ORLANDO ESTRADA, and all others similarly situated under 20 U.S.C. 216(b), is represented by: Stephen Michael Fox, Jr., Esq. Rivkah F. Jaff, Esq. Jamie H. Zidell, Esq. J.H. ZIDELL, PA 300 71st St., Suite 605 Miami Beach, FL 33141 Telephone: (305) 865-6766 E-mail: stephenmfoxjr@gmail.com rivkah.jaff@gmail.com zabogado@aol.com Defendant-Appellee FTS USA, LLC, is represented by: Susanne Mary Calabrese, Esq. Dori Katrine Stibolt, Esq. FOX ROTHSCHILD, LLP 777 S Flagler Dr., Suite 1700w West Palm Beach, FL 33401-6148 Telephone: (561) 804-4468 E-mail: scalabrese@foxrothschild.com dstibolt@foxrothschild.com - and - Colin D. Dougherty, Esq. FOX ROTHSCHILD, LLP 10 Sentry Pkwy., Suite 200 PO Box 3001 Blue Bell, PA 19422-3001 Telephone: (610) 397-7974 E-mail: cdougherty@foxrothschild.com GENMARK DIAGNOSTICS: Fails to Pay Overtime Wages, Fulinara Says --------------------------------------------------------------- EDDIE FULINARA, individually, and on behalf of other members of the general public similarly situated v. GENMARK DIAGNOSTICS, INC., a Delaware Company; and DOES 1 through 100, inclusive, Case No. 37-2019-00000877-CU-OE-CTL (Cal. Super., San Diego Cty., January 7, 2019), accuses the Defendants of violating the California Labor Code by not paying overtime, meal period premiums, rest period premiums and minimum wages. GenMark Diagnostics, Inc., is a Delaware corporation. The true names and capacities of the Doe Defendants are unknown to the Plaintiff. GenMark, a molecular diagnostics company, develops and commercializes molecular tests based on its proprietary eSensor electrochemical detection technology. The Company provides ePlex instrument and respiratory pathogen panel, which integrates automated nucleic acid extraction and amplification with its eSensor detection technology to enable operators using ePlex system to place patient sample directly into its test cartridge and obtain results.[BN] The Plaintiff is represented by: Douglas Han, Esq. Shunt Tatavos-Gharajeh, Esq. Daniel J. Park, Esq. JUSTICE LAW CORPORATION 751 N. Fair Oaks Avenue, Suite 101 Pasadena, CA 91103 Telephone: (818) 230-7502 Facsimile: (818) 230-7259 E-mail: dhan@justicelawcorp.com statavos@justicelawcorp.com dpark@justicelawcorp.com GEORGETOWN UNIVERSITY: Bid to Dismiss Wilcox ERISA Suit Granted --------------------------------------------------------------- Judge Rosemary M. Collyer of the U.S. District Court for the District of Columbia granted the Geogetown's motion to dismiss the case, DARRELL WILCOX and MICHAEL MCGUIRE, individually and as representatives of a class of participants and beneficiaries in and on behalf of the GEORGETOWN UNIVERSITY DEFINED CONTRIBUTION RETIREMENT PLAN and the GEORGETOWN UNIVERSITY VOLUNTARY CONTRIBUTION RETIREMENT PLAN, Plaintiffs, v. GEORGETOWN UNIVERSITY, et al., Defendants, Civil Action No. 18-422 (RMC) (D. D.C.). Wilcox and McGuire work for Georgetown University. Each man has an individual investment account in each of the two retirement plans offered by the University. They allege that Georgetown imprudently selected and retained certain investment options that caused excessively high administrative fees and that it failed to manage the plans' investments prudently, in violation of the University's fiduciary duties to the plans' participants. Georgetown in Washington, D.C. provides two retirement plans for its faculty and staff members: the Georgetown University Defined Contribution Retirement Plan and the Georgetown University Voluntary Contribution Retirement Plan. The Plans are defined contribution, individual account employee pension plans governed by the Employee Retirement Income Security Act ("ERISA"). Georgetown contributes an amount up to 10% of an employee's annual salary into the Defined Contribution Plan and employees can contribute, as they choose, up to 3% more to the Voluntary Plan. Each participant has his own account in each Plan and decides personally how to invest its funds across a wide array of investment options, according to individual choice. Georgetown is the designated Plan Administrator for both Plans. It manages the Plans and their assets, including selecting, monitoring, and removing investment options. The Plans are organized under Section 403(b) of the Internal Revenue Code. Plaintiffs Darrell Wilcox and Michael McGuire are participants in both Plans. They filed the lawsuit on Feb. 23, 2018 and challenge the expenses of the Plans, which they say are detrimental to the interests of the Participants, wasteful, and breach the fiduciary duties of the Plans' fiduciaries. Specifically, the Plaintiffs attack the expense of separate recordkeeping services that maintain the Plans; the expense of some of the investment options that are available; the number of investment options that are offered; and the inclusion in the Plans of certain investment options. Plaintiff Wilcox has invested in the TIAA Traditional Annuity, the CREF Bond Account, and eleven of the TIAA mutual funds. Plaintiff McGuire is invested in the CREF Stock Account, the CREF Equity Index Account, the TIAA Real Estate Account, the CREF Inflation-Linked Bond Fund Account, the CREF Bond Market Account, and the TIAA-CREF Growth and Income Account. Count I of the Complaint alleges that Georgetown breached its duty of prudence by selecting and retaining investment options and services without engaging in a prudent process to avoid inappropriately high administrative fees and expenses charged to the Plans. Count II alleges that Georgetown breached its duty of prudence by failing to manage prudently the Plans' investment portfolios. The University and Messrs. Augustini and Chatas deny that they violated any duty to the Plans' Participants and move to dismiss the Complaint. They argue that the Plaintiffs have no standing to make some of their claims and that others fail to state a claim on which relief can be granted. Judge Collyer holds that dismissal will be granted on the Complaint allegations concerning the Vanguard funds, the 2.5% withdrawal charge from the TIAA Traditional Annuity, and the TIAA Real Estate Account. The dismissal will also be granted as to Mr. McGuire's claims concerning the requirement of the TIAA Traditional Annuity requirement that funds be re-allocated over a 10-year period because Mr. McGuire has never invested in the TIAA Traditional Annuity; he therefore also lacks standing to represent other Plan Participants who did. As to the Plaintiffs' CREF Stock Account, the Judge finds that the CREF Stock Account, with its deliberate mix of foreign and domestic investments, may not have performed as some purely domestic accounts with different investments does not indicate imprudence on the part of the Defendants. Again, the Plaintiffs ignore the facts of the case in apparently adopting allegations from other cases that are unsuited to the Plans. Notably, the independent analyst Morningstar rated the CREF Stock Account as a 5-start investment option, which also counters the Plaintiffs' allegations of imprudence. Finally, with respect to the recordkeeping fees, the Judge finds that the Plaintiffs fail to identify a single one of the "any number of university plans that provide for a single recordkeeper with investment choices offered by multiple fund managers, much less one that offers the TIAA Traditional Annuity and other investment platforms through a single recordkeeper. To the contrary, the Plaintiffs only identify multiple cases in which district courts have found such allegations sufficient to proceed to discovery. While a plaintiff is entitled to the reasonable inferences that may arise from the facts asserted in his complaint, the Plaintiffs provide no factual support at all for their assertion that the Plans should pay only $35/year per participant in recordkeeping fees. For the aforementioned reasons, Judge Collyer granted the Defendants' Motion to Dismiss. A memorializing Order accompanies the Memorandum Opinion. A full-text copy of the Court's Jan 8, 2019 Memorandum Opinion is available at https://is.gd/Pn4UB7 from Leagle.com. DARRELL WILCOX, individually and as representatives of a class of participants and beneficiaries in and on behalf of the GEORGETOWN UNIVERSITY DEFINED CONTRIBUTION RETIREMENT PLAN, the GEORGETOWN UNIVERSITY VOLUNTARY CONTRIBUTION RETIREMENT PLAN, Plaintiff, represented by Ellen Toporoff Noteware -- ENOTEWARE@BM.NET -- BERGER MONTAGUE PC, Eric Lechtzin -- elechtzin@bm.net -- BERGER MONTAGUE PC, James A. Bloom -- jbloom@schneiderwallace.com -- SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP, pro hac vice, Todd S. Collins -- tcollins@bm.net -- BERGER MONTAGUE PC & Garrett Webster Wotkyns -- gwotkyns@schneiderwallace.com -- SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP. MICHAEL MCGUIRE, individually and as representatives of a class of participants and beneficiaries in and on behalf of the GEORGETOWN UNIVERSITY DEFINED CONTRIBUTION RETIREMENT PLAN, the GEORGETOWN UNIVERSITY VOLUNTARY CONTRIBUTION RETIREMENT PLAN, Plaintiff, represented by Ellen Toporoff Noteware, BERGER MONTAGUE PC, James A. Bloom, SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP, pro hac vice, Eric Lechtzin, BERGER MONTAGUE PC, Kyle G. Bates, SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP, Michael McKay, SCHNEIDER WALLACE COTRELL KONECKY WATKYNS LLP, Todd S. Collins, BERGER MONTAGUE PC & Garrett Webster Wotkyns, SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP. GEORGETOWN UNIVERSITY, CHRISTOPHER AUGOSTINI & GEOFF CHATAS, Defendants, represented by Brian D. Netter -- bnetter@mayerbrown.com -- MAYER BROWN LLP, Matthew Allyn Waring -- mwaring@mayerbrown.com -- MAYER BROWN LLP, Michelle Nicole Webster -- mwebster@mayerbrown.com -- MAYER BROWN PLLC, Nancy G. Ross -- nross@mayerbrown.com -- MAYER BROWN LLP, pro hac vice & Richard E. Nowak -- rnowak@mayerbrown.com -- MAYER BROWN LLP, pro hac vice. GOD'S MOVING: Kenneth Woodson Seeks Minimum & OT Wages ------------------------------------------------------- KENNETH WOODSON, on Behalf of Himself and All Others Similarly Situated, the Plaintiff, vs GOD'S MOVING, INC. and TODD HUFFORD, the Defendants, Case No. 1:19-cv-00049-JMS-MJD (S.D. Ind., Jan. 7, 2019), seeks to recover minimum and overtime wages under Fair Labor Standards Act. The case is a proposed collective action brought on behalf of all former and current truck drivers of Defendants against God's Moving, Inc. and Todd Hufford. Each member of the Class and Collective Class is or was a mover of Jay's at all times relevant to this action. According to the complaint, the Defendant failed to pay the members of the Mover Class and Collective Class all of the hours that they worked which included minimum, regular and overtime hours. The Defendant deducted monies out of the wages of the members of the Damages Class. While the members of the Collective Class were paid overtime hours for work beyond 40 hours in a workweek, the members of the Collective Class were not paid at least minimum and overtime wages for all hours that they worked each workweek. Rather, Defendants would deduct time from their hours that the Collective Class members worked each week. The Defendants willfully failed to pay members of the Collective Class at least minimum wages for each hour worked and certain overtime hours. The members of the Movers Class were not paid for all hours worked each workweek. Rather, Defendants would deduct time from their hours that the Movers Class worked each week, the lawsuit says.[BN] Attorneys for Plaintiff: Ronald E. Weldy, Esq. WELDY LAW 8383 Craig Street, Suite 330 Indianapolis, IN 46250 Telephone: (317) 842-6600 Facsimile: (317) 288-4013 E-mail: weldy@weldylegal.com GOLDMAN SACHS: Bronstein Gewirtz Files Securities Class Action -------------------------------------------------------------- Bronstein, Gewirtz & Grossman, LLC reminds investors 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, on behalf of shareholders who purchased or otherwise acquired Goldman Sachs shares between February 28, 2014 through December 17, 2018, both dates inclusive (the "Class Period"). Such investors are encouraged to join this case by visiting the firm's site: bgandg.com/gs. This class action seeks to recover damages against Defendants for alleged violations of the federal securities laws under the Securities Exchange Act of 1934. The Complaint alleges that throughout the Class Period, Defendants made materially false and/or misleading statements and/or failed to disclose that: (1) Goldman Sachs participated in a fraud and money-laundering scheme in collusion with 1Malaysia Development Bhd., a Malaysian state-owned investment fund; (2) the foregoing conduct, when revealed, would foreseeably subject Goldman Sachs to heightened regulatory investigations and enforcement; and (3) as a result, Goldman Sachs's public statements were materially false and misleading at all relevant times. 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/gs 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 Goldman Sachs 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] GOLDWATER BANK: Fabricant Sues Over Illegal Telemarketing Calls --------------------------------------------------------------- TERRY FABRICANT, individually and on behalf of all others similarly situated v. GOLDWATER BANK, N.A. a/k/a "GOLDWATER BANK, N.A. INC." a/k/a "GOLDWATER BANK, N.A. INCORPORATED," Case No. 2:19-cv-00164 (C.D. Cal., January 8, 2019), alleges that in violation of the Telephone Consumer Protection Act, the Defendant sent telemarketing calls without prior express written consent. Goldwater Bank, N.A., is an Arizona corporation with its principal place of business located in Phoenix, Arizona. The Defendant does business in California and throughout the United States, including sending telemarketing calls into this District. The Defendant is a mortgage lender and one of its strategies for marketing its services and generating new customers is telemarketing.[BN] The Plaintiff is represented by: Jon B. Fougner, Esq. FOUGNER LAW 600 California Street, 11th Floor San Francisco, CA 94108 Telephone: (415) 577-5829 Facsimile: (206) 338-0783 E-mail: jon@FougnerLaw.com - and - Robert Stempler, Esq. CONSUMER LAW OFFICE OF ROBERT STEMPLER, APC 8200 Wilshire Blvd., Suite 200 Beverly Hills, CA 90211 Telephone: (323) 486-0102 E-mail: socalconsumerlawyer@gmail.com HOLTGER BROS: Court Conditionally Certifies Class of Workers ------------------------------------------------------------ In the class action lawsuit captioned JACOB MCCHESNEY, the PLAINTIFF, vs. HOLTGER BROS., INC., the DEFENDANT, Case No. 4:17-cv-00824-KGB (E.D. Ark.), the Hon. Judge Kristine G. Baker entered an order: 1. conditionally certifying 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"; 2. directing parties to inform the Court in writing whether the 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, in ten days from entry of the Order; 3. granting Mr. McChesney's motion for equitable tolling; 4. directing Holtger to provide Mr. McChesney's counsel the names, last known home and work addresses, and all known email addresses for potential opt-in plaintiffs within 21 days of the date of the Order to facilitate notice; 5. directing Holtger to provide information to Mr. McChesney’s counsel via Microsoft Word or Excel formatting; and 6. directing McChesney within 90 days to distribute notice and file opt-in consent forms with the Court. The Court said, "The Court grants Mr. McChesney's motion to the extent he seeks to provide potential opt-in plaintiffs with notice via U.S. Mail. Accordingly, Mr. McChesney may send one written notice and consent form to the potential opt-in plaintiffs, as well as one follow-up written notice, all via U.S. Mail. Mr. McChesney's proposed written notice, consent, and follow-up forms are acceptable. Furthermore, the Court grants Mr. McChesney's motion to the extent he seeks permission to send potential opt-in plaintiffs one e-mail with notice of the action and another from www.Rightsignature.com with an electronic consent form. The proposed emails are acceptable to the Court. The Court denies without prejudice Mr. McChesney's request to send notice, consent, and follow-up information to the potential opt-in plaintiffs via text message.[CC] HOME ATTENDANT VENDOR: Home Aides Claim Unpaid Overtime Wages ------------------------------------------------------------- Zilola Yusupova, Inna Coral, Dmitriy Lashman and Tatyana Spivak, on behalf of a class of all others similarly situated, Plaintiffs, v. Home Attendant Vendor Agency, Inc. and John Does 1-25, Defendants, Case No. 19-cv-00028 (E.D. N.Y., January 2, 2019), seeks to recover unpaid overtime compensation, redress for failure to provide employees with accurate wage statements, liquidated damages, attorneys' fees, and costs under the provisions of the Fair Labor Standards Act of 1938 and New York Labor laws. Home Attendant Vendor Agency employed Plaintiffs as full-time home attendants. They worked regularly in excess of 60 hours per workweek without overtime pay. [BN] Plaintiff is represented by: Isl David A. Feinerman, Esq. LAW OFFICE OF DAVID A. FEINERMAN 2765 Coney Island Avenue, 2nd Floor Brooklyn, NY 11235 Tel: (718) 646-4800 INTERNATIONAL PAPER: Arroyo Moves to Certify Class and Subclasses ----------------------------------------------------------------- The Plaintiff in the lawsuit styled ELISA ARROYO, as an individual and on behalf of all others similarly situated v. INTERNATIONAL PAPER COMPANY, a New York corporation; and DOES 1 through 50, inclusive, Case No. 5:17-cv-06211-BLF (N.D. Cal.), asks the Court to certify these Class and Subclasses: a. All non-exempt manufacturing employees who were employed by Defendants in the State of California at any time from September 27, 2013, through the present, and who paid for uniform expenses (the "Expense Reimbursement Class"); b. All non-exempt employees who were employed by Defendants in the State of California and who were paid overtime wages at any time from January 27, 2017, through the present (the "Wage Statement Class"); and c. All non-exempt employees who were employed by Defendants in the State of California and who were provided wage statements containing payment for overtime wages and were created from data from the Workbrain system at any time from January 27, 2017, through the present (the "Workbrain Wage Statement Sub-Class"). Ms. Arroyo also seeks an order finding her to be an adequate representative and certifying her as class representative, and finding her counsel and their firms as adequate class counsel and certifying them as class counsel. The Court will commence a hearing on February 14, 2019, at 9:00 a.m., to consider the Motion.[CC] The Plaintiff is represented by: Larry W. Lee, Esq. Kristen M. Agnew, Esq. Nicholas Rosenthal, Esq. DIVERSITY LAW GROUP, P.C. 515 S. Figueroa St., Suite 1250 Los Angeles, CA 90071 Telephone: (213) 488-6555 Facsimile: (213) 488-6554 E-mail: lwlee@diversitylaw.com kagnew@diversitylaw.com nrosenthal@diversitylaw.com - and - William L. Marder, Esq. POLARIS LAW GROUP LLP 501 San Benito Street, Suite 200 Hollister, CA 95023 Telephone: (831) 531-4214 Facsimile: (831) 634-0333 E-mail: bill@polarislawgroup.com - and - Dennis S. Hyun, Esq. HYUN LEGAL, APC 515 S. Figueroa St., Suite 1250 Los Angeles, CA 90071 Telephone: (213) 488-6555 Facsimile: (213) 488-6554 E-mail: dhyun@hyunlegal.com JA SOLAR: Labaton Sucharow Files Class Action Lawsuit ----------------------------------------------------- Labaton Sucharow LLP disclosed that on December 20, 2018, it filed a securities class action lawsuit on behalf of its client ODS Capital LLC ("ODS Capital") against JA Solar Holdings Co. Ltd. (NASDAQ:JASO) ("JA Solar" or the "Company") and certain of its executives (collectively, "Defendants"). The action, captioned ODS Capital LLC v. JA Solar Holdings Co. Ltd, No. 18-cv-12083 (S.D.N.Y.), asserts claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, and U.S. Securities and Exchange Commission ("SEC") Rule 10b-5 promulgated thereunder, on behalf of all former stockholders and former owners of JA Solar stock and ADS who sold shares, and were damaged thereby, during the period between December 11, 2017 and July 16, 2018, inclusive (the "Class Period"). On July 16, 2018, JA Solar, purported to be one of the world's largest manufacturers of high-performance solar power products, completed its merger (the "Merger") with JASO Top Holdings Limited ("JASO Top"), JASO Holdings Limited ("Holdco"), JASO Parent Limited ("Parent"), and JASO Acquisition Limited ("Merger Sub") pursuant to the agreement and plan of merger dated November 17, 2017 by and among the parties. As a result of the Merger, the Company ceased to be a publicly traded company on the NASDAQ stock exchange. Contrary to the Company's repeated reassurances about no substantial changes to its structures or relisting following the Merger, only a few days after its delisting from the NASDAQ, it was announced that the now controller of JA Solar had signed an "Important Assets Reorganization Intention Agreement" with Chinese-based company Tianye Tolian for the purchase of 100 percent equity of JA Solar via issuance of shares. This deal, operating as a "backdoor listing," would allow JA Solar to return to the stock market by relisting on the Shenzhen Stock Exchange at a multiple, to the detriment of shareholders who unknowingly sold JA Solar's stock and ADS at substantially deflated values during the Class Period as part of the scheme. The Complaint alleges that JA Solar shareholders were misled into accepting consideration from the Merger that was well below fair value for their JA Solar shares. Specifically, defendants failed to disclose: (1) that the Company's Proxy materials misrepresented and/or omitted material information that was necessary for Company shareholders to make an informed decision concerning whether to vote in favor of the Merger; (2) that contrary to the representations in the Proxy, the Company already had plans to relist its shares in China prior to closing the Merger and its delisting from the NASDAQ; and (3) as a result, the Company's statements about its business, operations, and prospects lacked a reasonable basis. If you sold JA Solar stock or ADS during the Class Period, and was damaged thereby, you are a member of the "Class" and may be able to seek appointment as Lead Plaintiff. Lead Plaintiff motion papers must be filed with the U.S. District Court for the Southern District of New York no later than February 19, 2019. The Lead Plaintiff is a court-appointed representative for absent members of the Class. You do not need to seek appointment as Lead Plaintiff to share in any Class recovery in this action. If you are a Class member and there is a recovery for the Class, you can share in that recovery as an absent Class member. You may retain counsel of your choice to represent you in this action. If you would like to consider serving as Lead Plaintiff or have any questions about this lawsuit, you may contact: Francis P. McConville, Esq. Labaton Sucharow Telephone: 800-321-0476 Website: www.labaton.com. Email: fmcconville@labaton.com [GN] JEFFERSON PARISH, LA: Partial Summary Judgment in Mellor Reversed ----------------------------------------------------------------- The Court of Appeal of Louisiana, Fifth Circuit, issued an Opinion reversing the partial grant of summary judgment in favor of plaintiffs in the appeals case captioned WILLIAM MELLOR, ET AL, v. THE PARISH OF JEFFERSON. No. 18-CA-390. (5th Cir.). Defendants/appellants, appeal a trial court judgment which granted in part and denied in part a motion for partial summary judgment filed by plaintiffs. Plaintiffs, William Mellor, et al., represent a class of persons who received civil traffic tickets for allegedly violating the Jefferson Parish School Bus Safety Enforcement Program (SBSEP), pertaining to the overtaking and passing of a school bus that has activated its visual signals. The Plaintiffs filed this class action suit seeking a declaration that the Ordinance is unconstitutional and an order for defendants to immediately return all money collected via enforcement of the SBSEP. In a judgment dated, the trial court: (1) granted summary judgment in favor of plaintiffs on the part of the motion which sought to have all SBSEP tickets issued for violations occurring within the incorporated Jefferson Parish municipalities of the City of Gretna, the City of Harahan, the City of Kenner, and the City of Westwego (collectively the Cities) declared to have been issued illegally (2) denied summary judgment on the part of the motion which sought to have the SBSEP tickets issued in the adjoining parishes of Orleans and St. Charles declared to have been issued illegally and(3) denied summary judgment on the part of the motion in which plaintiffs sought immediate return of the SBSEP fees and fine monies alleged to have been illegally collected. On appeal, the appellants argue that the trial judge erred in relying on the case of State v. Meche, supra, to support the plaintiffs' argument that enforcement of the ordinance in the Cities was illegal. In their motion for partial summary judgment, plaintiffs argued that the Cities, being independent and autonomous legal entities distinct from the Parish, had given neither the Parish of Jefferson nor the School Board permission to enforce a parish ordinance within their municipal boundaries, as evidenced by ONGO's responses to plaintiffs' requests for admissions. They argued that without express permission from the Cities to enforce the ordinance within their municipal borders, appellants were without authority to cite violators within the Cities' boundaries, and the tickets for violations occurring within those boundaries were therefore issued illegally. In Meche, the issue before the court was whether the unified City-Parish government of Lafayette could enforce a parish criminal ordinance within the municipal boundaries of Carencro, an incorporated municipal government specifically exempted by statute (La. R.S. 33:1391) from the unified City-Parish government of Lafayette. The City of Carencro had enacted a municipal ordinance regulating the same behavior as the parish ordinance. The court, after considering constitutional provisions (La. Const. Article VI, Sections 20 and 44), as well as La. R.S. 33:1324 and 33:361, and Attorney General opinions, concluded that the powers of the parishes, municipalities, and other political subdivisions of the state are otherwise separate unless there is an agreement to act jointly or in cooperation with another subdivision. The court found no such agreement existed in that case. Further, the court found that no statute gave concurrent exercise of the police power to the parish and municipalities, other than La. R.S. 33:1324. The court held that because the City-Parish government of Lafayette excluded the municipality of Carencro, it had no authority to exercise its legislative powers within the territory of Carencro, and thus had no authority to prosecute charges alleging the violation of its City-Parish ordinances arising within the municipality of Carencro, absent an agreement between the two political subdivisions. The court further held that "it is not necessary that a conflict exist between parish and municipal ordinances in order for the parish to be denied jurisdiction within an incorporated municipality; a parish simply cannot enforce its ordinances upon the citizens of an incorporated municipality. While Meche is pertinent, it is not wholly on point with the facts in the present matter. In the present case, at issue is the enforcement of a parish civil ordinance within the territorial boundaries of the Cities where the record evidences no explicit agreement between the Parish (and the School Board and/or the Sheriff's Office) to cooperatively enforce the Ordinance. In Meche, however, both the Lafayette unified government and Carencro had similar ordinances prohibiting the same conduct. Here, this record is devoid of any examination of whether any or all of the Cities may have enacted concurrent school bus ordinances, and whether the existence or nonexistence of concurrent ordinances might be an issue of material fact to be considered by the trial court in its analysis. Considering this, the Court finds that plaintiffs/appellees, as movers for partial summary judgment, did not carry their burden of showing that there are no genuine issues of material fact outstanding, and thus we find that they are not entitled to summary judgment as a matter of law at this time. Accordingly, the partial summary judgment that was granted in favor of plaintiffs/appellees is reversed and the matter remanded for further proceedings. A full-text copy of the Court's December 27, 2018 Opinion is available at https://tinyurl.com/yar7gkop from Leagle.com. Anthony S. Maska, Joseph R. McMahon, III, COUNSEL FOR PLAINTIFF/APPELLEE, WILLIAM MELLOR, ET AL. E. John Litchfield, Kathy L. Torregano, Michael J. Marsiglia, COUNSEL FOR DEFENDANT/APPELLANT, JEFFERSON PARISH SCHOOL BOARD AND ONGO LIVE, INC. JOY GLOBAL: Duncan Class Settlement Has Final Court Approval ------------------------------------------------------------ The United States District Court for the Eastern District of Wisconsin issued an Order granting Motion for Final Approval of Class Action Settlement in the case captioned STEVEN DUNCAN, PETER CAHILL and CHARLES CAPARELLI, Individually and on Behalf of All others Similarly Situated, Plaintiffs, v. JOY GLOBAL INC., EDWARD L. DOHENY II, JOHN NILS HANSON, STEVEN L. GERARD, MARK J. GLIEBE, JOHN T. GREMP, GALE E. KLAPPA, RICHARD B. LOYND, P. ERIC SIEGERT and JAMES H. TATE, Defendants. Case No. 16-cv-1229-pp. (E.D. Wis.). The court authorizes and directs implementation of the terms and provisions of the Stipulation, as well as the terms and provisions of this order. The court orders that the case and all claims contained therein and all of the released claims as against the released persons is dismissed with prejudice and without costs. The court will enter separate orders regarding the proposed Plan of Allocation and Lead Counsel's motion for attorneys' fees as allowed by the court. Any plan of allocation submitted by Lead Counsel or any order entered regarding any attorneys' fee application shall in no way disturb or affect this Order and shall be considered separate from this Order. The court finds that during the Litigation, the Settling Parties and their respective counsel at all times complied with the requirements of Federal Rule of Civil Procedure 11. A full-text copy of the District Court's December 27, 2018 Memorandum Opinion and Order is available at https://tinyurl.com/ycc6td3m from Leagle.com. Pamela Mayhew & Betsy Farnsworth, on behalf of themselves and others similarly situated, Plaintiffs, represented by Mark A. Toor, MARK A. TOOR. Loved Ones In Home Health Care, LLC & Donna Skeen, Defendants, represented by Andrew L. Ellis, WOOTON DAVIS HUSSELL & ELLIS, Charles Whittaker Neely, NEELY & CALLAGHAN, Michael O. Callaghan, NEELY & CALLAGHAN & Richard Neely, NEELY & CALLAGHAN. KPMG LLP: Court Won't Certify for Interlocutory Appeal in Jones --------------------------------------------------------------- The United States District Court for the Southern District of Mississippi, Southern Division, issued an Order denying Defendant's Motion to Certify Order for Interlocutory Appeal in the case captioned THOMAS JONES, JOSEPH CHARLES LOHFINK, SUE BEAVERS, RODOLFOA REL, and HAZEL REED THOMAS, on behalf of themselves and others similarly situated, Plaintiffs, and, MARTHA EZELL LOWE, individually, and on behalf of a class of similarly situated employees, Consolidated Plaintiff, v. KPMG, LLP and TRANSAMERICA RETIREMENT SOLUTIONS CORP., Defendants. Cause No. 1:17CV319-LG-RHW. (S.D. Miss.). This putative class action arose out of the alleged under-funding of the Singing River Health System Employees' Retirement Plan and Trust. Lowe has sued KPMG, the company that audited the annual financial statements of Singing River Health System, and the Plan. The sole claim against KPMG is that it knowingly participated in and/or aided and abetted in a breach of fiduciary duty by the Individual Trustees in its 2010 and 2011 audit reports by allowing or failing to correct misleading statements that attributed the Trust's under-funding to returns on investments and changed actuarial assumptions. KPMG filed a Motion to Dismiss arguing, inter alia, that no Mississippi court has ever recognized a claim of aiding and abetting breach of fiduciary duty. When denying KPMG's Motion, the Court assumed, based on a prior case decided by this Court, that Mississippi state courts would recognize a cause of action for aiding and abetting breach of fiduciary duty under the Restatement of Torts Section 876(b). Permissive interlocutory appeals are governed by 28 U.S.C. Section 1292(b), which creates a narrow exception to the final judgment rule. Therefore, an interlocutory appeal is available only in limited circumstances. KPMG requests certification of the following question: Was it error for the district court to make an Erie guess as to the existence of an aiding and abetting breach of fiduciary duty claim under Mississippi law? In Knox Glass Bottle Co. v. Underwood, 89 So.2d 799, 820-24 (Miss. 1956), a corporation sued several individuals, including former corporate officer C. Alberta Luter, seeking to recover profits that the individuals obtained by leasing trucks to the corporation KPMG claims that the Knox decision did not actually create a cause of action for aiding and abetting breach of fiduciary duty, but the following excerpt of the opinion belies KPMG's assertion: The Court holds, that Miss Luter actively participated and joined C.R. Underwood, with actual knowledge of the breach of his fiduciary duties, in obtaining profits by truck rentals from complainant corporation, and that she is liable for the net profits received by her from the truck rentals on and after January 1, 1952. All of these and other circumstances render it manifest that C. R. Underwood and Luter were close personal friends and business associates, and that she knowingly participated with him and E. F. and J. H. Underwood in the breach of their fiduciary duties to the corporation, by the continuance in effect of the leases by her to the corporation after Roy's death. She comes clearly within the universally accepted rule that one who participates with a fiduciary in a breach of his duties, with knowledge that he is violating his obligations, is liable for the profits received from the corporation. A full-text copy of the District Court's December 27, 2018 Order is available at https://tinyurl.com/y7cfw6px from Leagle.com. Thomas Jones, on behalf of themselves and others similarly situated, Joseph Charles Lohfink, on behalf of themselves and others similarly situated, Sue Beavers, on behalf of themselves and others similarly situated, Rodolfoa Rel, on behalf of themselves and others similarly situated & Hazel Reed Thomas, on behalf of themselves and others similarly situated, Plaintiffs, represented by David G. Wirtes, Jr., CUNNINGHAM BOUNDS, LLC, George W. Finkbohner, III, CUNNINGHAM BOUNDS, LLC, pro hac vice, James R. Reeves, Jr., REEVES & MESTAYER, PLLC, Lucy Elizabeth Tufts, CUNNINGHAM BOUNDS, LLC, pro hac vice, Matthew G. Mestayer, REEVES & MESTAYER, PLLC, Steven L. Nicholas, CUNNINGHAM BOUNDS, LLC, pro hac vice & Leilani Leith Tynes, REEVES & MESTAYER, PLLC. KPMG, LLP, Defendant, represented by Amelia Toy Rudolph -- amyrudolph@eversheds-sutherland.com -- EVERSHEDS SOUTHERLAND (US) LLP, pro hac vice, Patricia Anne Gorham -- patriciagorham@eversheds-sutherland.com -- EVERSHEDS SOUTHERLAND (US) LLP, pro hac vice, R. David Kaufman -- dkaufman@brunini.com -- BRUNINI, GRANTHAM, GROWER & HEWES, PLLC & Taylor B. McNeel -- tmcneel@brunini.com -- BRUNINI, GRANTHAM, GROWER & HEWES, PLLC. KROGER CO: Brooks Sues for Invasion of Privacy ---------------------------------------------- Derrick Brooks, on behalf of himself and all others similarly situated, Plaintiff, v. The Kroger Co., Defendant, Case No. 3:19-cv-00106-AJB-MDD (S.D. Cal., January 15, 2019) seeks to: (1) stop Defendant's practice of placing calls using an automatic telephone dialing system ("ATDS") to the cellular telephones of consumers nationwide without their prior express written consent; (2) stop Defendant's practice of placing calls using an artificial or prerecorded voice to the cellular and landline telephones of consumers nationwide without their prior express written consent; (3) enjoin Defendant from continuing to place calls using an ATDS to consumers who did not provide their prior express written consent to receive them; and (4) obtain redress for all persons injured by its conduct. The Defendant knowingly made (and continues to make) autodialed calls to consumers' telephones without the prior express written consent of the call recipients. In so doing, Defendant not only invaded the personal privacy of Plaintiff and members of the putative Classes, but also intentionally and repeatedly violated the TCPA, says the complaint. Derrick Brooks is a resident of San Diego, California, and a citizen of the State of California. The Kroger Co. is a corporation organized under the laws of Ohio, with a principal place of business at 1014 Vine Street, Cincinnati, OH 45202-1100. Kroger conducts business in this District and throughout the United States.[BN] The Plaintiff is represented by: L. Timothy Fisher, Esq. BURSOR & FISHER, P.A. 1990 North California Blvd., Suite 940 Walnut Creek, CA 94596 Phone: (925) 300-4455 Facsimile: (925) 407-2700 Email: ltfisher@bursor.com - and - Scott A. Bursor, Esq. BURSOR & FISHER, P.A. 2665 S. Bayshore Dr. Ste. 220 Miami, FL 33133-5402 Phone: (305) 330-5512 Facsimile: (212) 989-9163 Email: scott@bursor.com L.L. BEAN: Court Dismisses Berger Suit Without Prejudice -------------------------------------------------------- In the case, ANITA BERGER, individually and on behalf of all others similarly situated, Plaintiff, v. L.L. BEAN, INC., Defendant, Case No. 18-CV-1280 (ENV) (SMG) (E.D. N.Y.), Judge Eric N. Vitalaino of the U.S. District Court for the Eastern District of New York (i) granted the Defendant's motion to dismiss, and (ii) dismissed without prejudice the Plaintiff's complaint. Berger, individually and on behalf of all others similarly situated, has filed a putative class action complaint, demanding damages and equitable relief for harm supposedly arising out of changes in L.L. Bean's "satisfaction guarantee" policy. On behalf of a nationwide class, consisting of herself and all other persons in the United States and its territories who purchased, other than for resale, products from L.L. Bean prior to Feb. 9, 2018, she alleges (1) breach of contract, (2) unjust enrichment, and (3) violation of the Magnuson-Moss Warranty Act. Separately, she asserts claims on behalf of a New York subclass, consisting of all persons in the State of New York who purchased, other than for resale, products from L.L. Bean prior to Feb. 9, 2018. On behalf of the New York subclass, she alleges (1) violation of New York General Business Law Section 349 and (2) violation of New York General Business Law Section 350. For much of its history, L.L. Bean provided a "100% Satisfaction Guarantee" on its products, promising that if something's not working or fitting or standing up to its task or lasting as long as one thinks it should, the company would] take it back. It advertised that this guarantee had no conditions and no end date. Then came the change that sent the Plaintiff sprinting for the courthouse. On Feb. 9, 2018, L.L. Bean modified its satisfaction guarantee policy. It announced that customers who purchase L.L. Bean products on or after Feb. 9, 2018 and who are not 100% satisfied may return the products within one year of purchase for a refund. After one year, L.L. Bean will consider any items for return that are defective due to materials or craftsmanship. Going forward, L.L. Bean announced, its lifetime guarantee would now be largely limited to one year. However, the change in L.L. Bean's guarantee was not retroactive. Although the Plaintiff alleges that certain provisions of the guarantee were changed retroactively, she does not dispute that the guarantee applicable to her purchases remains of lifetime duration. Rather, she alleges that the guarantee was changed retroactively only insofar as all returns, including returns of Prior Purchases, are now subject to a mandatory proof of purchase requirement and various Special Conditions unilaterally declared by the Defendant. That is, if the Plaintiff wishes to return a purchase made prior to the change in policy, she must produce proof of purchase. Moreover, as relevant to the Plaintiff's action, the new special conditions include the requirement that products not be damaged by misuse, abuse, improper care or negligence, or accidents Berger is a long-time L.L. Bean customer who, on Nov. 16, 2016 purchased an "Ultrawarm Coat" from the company. On Feb. 28, 2018, less than three weeks after the announced policy change, she filed the instant complaint, despite the fact that she had never tried to return her jacket and had no intention of doing so. On June 11, 2018, the parties filed their fully briefed motion. In the intervening time, courts in the Northern District of Illinois, Bondi v. L.L. Bean, Inc., No. 18-cv-1101 (RWG), 2018 WL 3157712 (N.D. Ill. June 28, 2018), and the Northern District of California, Shirley v. L.L. Bean, Inc., No. 18-cv-2641 (YGR) (N.D. Cal. Aug. 15, 2018), have dismissed similar actions. L.L. Bean has moved (1) to dismiss the action for lack of subject matter jurisdiction and failure to state a claim, and (2) to strike the class allegations. Judge Vitaliano finds that though she contorts her pleadings to show otherwise, it is evident that Berger has not suffered a concrete injury-in-fact. To the extent the Plaintiff's injury is her purported future inability to return her jacket, she has not satisfied the requirements of Article III standing. Because the new conditions are no more restrictive than the implicit conditions of the original policy, the Judge finds that Berger has not shown that her jacket decreased in value. On the other approach to standing, given that she has not attempted to return the jacket, she has not shown that L.L. Bean will not accept her return. Having made neither of these showings, Berger has not established injury-in-fact and does not have Article III standing. On a final note, the Judge holds that the fact that some unnamed class members may have suffered injuries-in-fact does not create subject matter jurisdiction. Therefore, Berger's argument, based primarily on social media posts, that other class members' returns have been refused is of no moment. Subject matter jurisdiction remains wanting. To the extent that Berger seeks declaratory relief, her claim is unripe, the Judge finds. Berger's purported injury rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all. Substantial uncertainty exists as to whether L.L. Bean would accept a return of the Plaintiff's coat, but that uncertainty is due entirely to the Plaintiff's failure to attempt to return her coat. The Judge holds there is no hardship to the Plaintiff of withholding judicial consideration at this time. If she should ever attempt to return her coat and find her return denied, she may seek relief at that time. Given the present uncertainty and the availability of future judicial intervention, her claim is unripe. For the foregoing reasons, Judge Vitaliano granted the Defendant's motion, and dismissed without prejudice the Plaintiff's complaint. The Clerk of Court is directed to enter judgment accordingly and to close the case. A full-text copy of the Court's Jan 8, 2019 Order is available at https://is.gd/5BXi7q from Leagle.com. Anita Berger, individually and on behalf of all others similarly situated, Plaintiff, represented by Correy Ann Kamin -- kamin@whafh.com -- Wolf Haldenstein Adler Freeman & Herz LLP, Erich P. Schork, Barnow and Associates, P.C., pro hac vice, Janine Lee Pollack -- pollack@whafh.com -- Wolf Haldenstein Adler Freeman & Herz LLP, Alen Richard Beerman, Roseman, Beerman & Beerman, LLP, Anthony L. Parkhill, Barnow and Associates, P.C., pro hac vice & Michael Milton Liskow -- liskow@whafh.com -- The Sultzer Law Group P.C. L.L. Bean, Inc., Defendant, represented by Evan Glassman , Steptoe & Johnson LLP, Anthony J. Anscombe -- aanscombe@steptoe.com -- Steptoe & Johnson, LLP, pro hac vice, Daniel Raymond -- draymond@steptoe.com -- Steptoe & Johnson LLP, pro hac vice, Darlene Alt -- dalt@steptoe.com -- Steptoe & Johnson LLP, pro hac vice, Mary E. Buckley -- mbuckley@cgwg.com -- Sedgwick LLP, Meegan Brooks -- mbrooks@steptoe.com -- Steptoe & Johnson LLP, pro hac vice & Stephanie Sheridan -- ssheridan@steptoe.com -- Steptoe & Johnson LLP, pro hac vice. MADISON COUNTY, MS: Court Won't Certify MCSD Discrimination Suit ---------------------------------------------------------------- In the case, LATOYA BROWN, ET AL., Plaintiffs, v. MADISON COUNTY, MISSISSIPPI, ET AL., Defendants, Civil Action No. 3:17-cv-347-WHB-LRA (S.D. Miss.), Judge William H. Harbour, Jr. of the U.S. District Court for the Southern District of Mississippi, Northern Division, (i) denied the Plaintiffs' Motion for Class Certification; and (ii) dismissed without prejudice the Defendants' Motions for Summary Judgment on the Plaintiffs' claims. The Plaintiffs in the civil action are all Black residents of Madison County, Mississippi, who allege that they have been subjected to one or more racially-discriminatory policing policy. According to the Plaintiffs, for the past 20 years the Madison County Sheriff's Department ("MCSD") has implemented a "coordinated top-down program" under which Blacks are methodically targeted for suspicionless searches and seizures. According to the Plaintiffs, the racially discriminatory policing policies about which they complain were initiated in the 1980's, and were adopted and expanded at the time Randall Tucker became Sheriff of Madison County, in 2012. For example, they allege that Tucker has maintained the preexisting General Roadblocks Policy that allows MCSD deputies to "conduct random roadblocks." The Plaintiffs challenge this policy on the grounds that it does not place explicit, neutral limitations on conduct that can be used by deputies when performing the roadblocks, and it does not require deputies to use race-neutral criteria when selecting roadblock locations. The Plaintiffs also allege that Tucker has exhibited deliberate indifference toward the constitutional violations resulting from the policing policies. Based on these allegations, the Plaintiffs filed a Complaint in the Court seeking relief under 42 U.S.C. Sections 1983 and 2000(d) against Madison County, Sheriff Tucker, and multiple John Doe Deputies. In their Complaint, the Plaintiffs first request that they be permitted to proceed as the class of people who (1) are, or who appear to be, Black and those in their company, and (2) were, are, or will be in Madison County, and (3) were, are, or will be subject to the MCSD's policy, custom, and/or practice of systematically executing unreasonable searches and seizures of persons, homes, cars, and property on the basis of race. As to themselves and the putative class members, the Plaintiffs request relief under Section 1983 on claims that their constitutional rights, as protected by the Fourth and Fourteenth Amendments, have been violated because the policing policies and practices used by the MCSD are targeted at Blacks, and have resulted in unreasonable searches and seizures (i.e. searches and seizures that are conducted without reasonable suspicion or probable cause, and are often accompanied by the use of excessive force). The Plaintiffs, individually and on behalf of the class, also request relief under 42 U.S.C. Section 2000(d) on the grounds that the subject policing polices have been partially funded with federal dollars. In addition to seeking declaratory relief, the Plaintiffs request that the Court issue an injunction: (1) barring the MCSD from continuing its policy, practice, and/or custom of unreasonably searching and seizing persons in the absence of reasonable suspicion or probable cause and on the basis of race. (2) requiring Madison County to establish an independent civilian complaint review board to investigate complaints against the MCSD, and to empower that board with the authority to (a) investigate the policies and practices of the MCSD, (b) subpoena documents and hear testimony during the course of its investigations, and (c) take binding disciplinary action against MCSD deputies who are found to have violated any individual's civil rights; (3) requiring that Madison County and Tucker institute training, discipline, and promotion policies that are designed to eliminate the current policies and practices of MCSD that have caused the constitutional rights violations about which they complain; (4) requiring that Madison County and Tucker appropriately and adequately supervise MCSD personnel; (5) requiring that Madison County and Tucker implement measures under which deputies would be required to document, among other things, the locations and results (i.e. number and nature of issued citations/arrests, and the race and gender of those cited/charged) of roadblock and checkpoint stops; (6) requiring that Madison County and Tucker retain the documentation referenced above in a computerized database; (7) requiring that Madison County and Tucker publically disclose data gathered through the above referenced documentation; (8) requiring that Madison County and Tucker monitor and audit the policies and practices of the MCSD to ensure they comply with constitutional and statutory requirements; (9) requiring that Madison County and Tucker (1) acknowledge the role of policing in past and present injustice and discrimination" and (2) acknowledge "how it is a hurdle to the promotion of community trust; and (10) requiring that Madison County and Tucker embrace a guardian mind set to build public trust and legitimacy by adopting procedural justice as the guiding principle for internal and external policies and practices to guide their interactions with the citizens they serve. The Plaintiffs have now moved for certification of their class action claim. Judge Harbour finds that the class and the subclasses proposed by the Plaintiffs in the case cannot now be certified because the members of the subclasses are not ascertainable, and it has not been shown that all of the members of Targeting Class, which would necessarily include class representatives Khadafy and Quinnetta Manning, have been harmed by the allegedly discriminatory policy that forms the common question with respect to that class. As opposed to dismissing the class action claim at this time, however, he will grant the Plaintiffs leave to amend their Complaint to attempt to cure the defects in their allegations. As the Plaintiffs will be granted leave to amend their Complaint, the Motions of Defendants for Summary Judgment will be dismissed, without prejudice, thereby permitting Defendants to again seek summary judgment after the amended complaint is filed or the time period for so doing has expired. For the foregoing reasons, the Judge denied the Plaintiffs' Motion for Class Certification. The Plaintiffs are granted 30 days, up to and including Feb. 4, 2019, to file an Amended Complaint in this case setting forth the proposed classes they seek to certify, and correcting the pleading deficiencies identified in this Opinion and Order. The Judge dismissed without prejudice the Motions of Defendants for Summary Judgment on Plaintiffs' claims thereby permitting Defendants to again seek summary judgment after the amended complaint is filed, or the time period for so doing has expired. All other motions filed in conjunction with the class certification issue are dismissed as moot. A full-text copy of the Court's Jan 4, 2019 Opinion and Order is available at https://is.gd/i2B42F from Leagle.com. Latoya Brown, individually and on behalf of a class of all others similarly situated, Plaintiff, represented by Joshua F. Tom -- Ejtom@aclu-ms.org -- ACLU OF MISSISSIPPI, Brooke Jarrett -- bonnie.jarrett@stblaw.com -- SIMPSON, THACHER & BARTLETT, LLP, pro hac vice, Christopher K. Shields -- christopher.shields@stblaw.com -- SIMPSON, THACHER & BARTLETT, LLP, pro hac vice, Ezekiel Edwards, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, INC., pro hac vice, Isaac Rethy -- irethy@stblaw.com -- SIMPSON, THACHER & BARTLETT, LLP, pro hac vice, Janet A. Gochman -- jgochman@stblaw.com -- SIMPSON, THACHER & BARTLETT, LLP, pro hac vice, Jonathan K. Youngwood -- jyoungwood@stblaw.com -- SIMPSON, THACHER & BARTLETT, LLP, pro hac vice, Kavitha Satya Sivashanker -- kavitha.sivashanker@stblaw.com -- SIMPSON, THACHER & BARTLETT, LLP, pro hac vice, Landon P. Thomas , ACLU OF MISSISSIPPI, Nihara Karim Choudhri, SIMPSON, THACHER & BARTLETT, LLP, pro hac vice & Paloma Wu -- pwu@aclu-ms.org -- SOUTHERN POVERTY LAW CENTER, pro hac vice. Lawrence Blackmon, individually and on behalf of a class of all others similarly situated, Khadafy Manning, individually and on behalf of a class of all others similarly situated, Quinnetta Manning, individually and on behalf of a class of all others similarly situated, Nicholas Singleton, individually and on behalf of a class of all others similarly situated, Steven Smith, individually and on behalf of a class of all others similarly situated, Bessie Thomas, individually and on behalf of a class of all others similarly situated & Betty Jean Williams Tucker, individually and on behalf of a class of all others similarly situated, Plaintiffs, represented by Joshua F. Tom, ACLU OF MISSISSIPPI, Brooke Jarrett, SIMPSON, THACHER & BARTLETT, LLP, pro hac vice, Christopher K. Shields, SIMPSON, THACHER & BARTLETT, LLP, pro hac vice, Ezekiel Edwards, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, INC., pro hac vice, Isaac Rethy, SIMPSON, THACHER & BARTLETT, LLP, pro hac vice, Janet A. Gochman, SIMPSON, THACHER & BARTLETT, LLP, pro hac vice, Jonathan K. Youngwood, SIMPSON, THACHER & BARTLETT, LLP, pro hac vice, Kavitha Satya Sivashanker, SIMPSON, THACHER & BARTLETT, LLP, pro hac vice, Landon P. Thomas, ACLU OF MISSISSIPPI & Nihara Karim Choudhri, SIMPSON, THACHER & BARTLETT, LLP, pro hac vice. Herbert Anthony Green, individually and on behalf of a class of all others similarly situated & Marvin McField, individually and on behalf of a class of all others similarly situated, Plaintiffs, represented by Joshua F. Tom , ACLU OF MISSISSIPPI, Brooke Jarrett, SIMPSON, THACHER & BARTLETT, LLP, pro hac vice, Christopher K. Shields, SIMPSON, THACHER & BARTLETT, LLP, pro hac vice, Ezekiel Edwards, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, INC., pro hac vice, Isaac Rethy, SIMPSON, THACHER & BARTLETT, LLP, pro hac vice, Janet A. Gochman , SIMPSON, THACHER & BARTLETT, LLP, pro hac vice, Jonathan K. Youngwood , SIMPSON, THACHER & BARTLETT, LLP, pro hac vice, Kavitha Satya Sivashanker, SIMPSON, THACHER & BARTLETT, LLP, pro hac vice & Nihara Karim Choudhri, SIMPSON, THACHER & BARTLETT, LLP, pro hac vice. Madison County, Mississippi & Sheriff Randall S. Tucker, in his official capacity, Defendants, represented by Charles E. Cowan -- cec@wisecarter.com -- WISE, CARTER, CHILD & CARAWAY, PA, Charles E. Ross -- cer@wisecarter.com -- WISE, CARTER, CHILD & CARAWAY, J. Lawson Hester -- lhester@pbhfirm.com -- PETTIS, BARFIELD & HESTER, PA, James Earl Graves, III -- jeg@wisecarter.com -- WISE, CARTER, CHILD & CARAWAY, PA, Jason Edward Dare -- jdare@pbhfirm.com -- PETTIS, BARFIELD & HESTER, PA, Katherine Bryant Snell , KATIE BRYANT SNELL, PLLC, Michael B. Wallace -- mbw@wisecarter.com -- WISE, CARTER, CHILD & CARAWAY, PA, Rebecca B. Cowan -- bcowan@curriejohnson.com -- CURRIE, JOHNSON & MYERS, PA & T. Russell Nobile -- trn@wisecarter.com -- WISE, CARTER, CHILD & CARRAWAY, PA. Madison County Sheriff's Deputies, in their individual capacities & John Does 1-6, in their individual capacities, Defendants, represented by Charles E. Ross, WISE, CARTER, CHILD & CARAWAY, James Earl Graves, III, WISE, CARTER, CHILD & CARAWAY, PA, Katherine Bryant Snell, KATIE BRYANT SNELL, PLLC & Michael B. Wallace, WISE, CARTER, CHILD & CARAWAY, PA. Town of Flora Police Department, Interested Party, represented by William I. Gault, Jr., NIPPES, HEALY & GAULT, PLLC. MARRIOTT INT'L: Failed to Secure Private Info, Durant Sues Says ---------------------------------------------------------------- Nitya Bodhi Durant, individually and on behalf of all others similarly situated, Plaintiff, v. Marriott International, Inc., a Delaware corporation, and Starwood Hotels & Resorts Worldwide LLC, a Maryland limited liability company, Defendants, Case No. 3:19-cv-00084-MPS (D. Conn., January 15, 2019) is a consumer class action against Defendants, operators of the world's largest hotel chain, for their failures to secure and safeguard their customers' private information, including payment card data information, which Defendants collected at the time Plaintiff and other members of the Classes made reservations at any of Marriott's Starwood hotel properties; as well as Defendants' failure to remedy its data security failures subsequent to the data breach, and Defendants' failure to detect the breach for approximately four years. On September 8, 2018, Defendants discovered that criminals breached the entirety of Marriott's Starwood network of hotels, resulting in the unauthorized access of up to approximately 383 million customers worldwide. Strikingly, the Data Breach remained undetected for approximately four years, running active from 2014 to September 10, 2018. Plaintiff, on behalf of himself and similarly situated consumers, seeks to recover damages, equitable relief including injunctive relief to prevent a reoccurrence of the data breach and resulting injury, restitution, disgorgement, reasonable costs and attorneys' fees, and all other remedies this Court deems proper, says the complaint. Plaintiff Nitya Bodhi Durant is a resident of Kerby, Oregon and was an Oregon resident during the period of the Marriott Data Breach. Marriott International, Inc. is a Delaware limited liability company with its principal place of business in Bethesda, Maryland. Starwood Hotels & Resorts Worldwide LLC ("Starwood") is a limited liability company incorporated in Maryland with its principle place of business in Stamford, Connecticut. On September 23, 2016, Marriott acquired Starwood, which was formerly known as Starwood Hotels & Resorts Worldwide, Inc.[BN] The Plaintiff is represented by: Erin Green Comite, Esq. Joseph P. Guglielmo, Esq. SCOTT+SCOTT ATTORNEYS AT LAW LLP 156 South Main Street P.O. Box 192 Colchester, CT 06415 Phone: 860-537-5537 Facsimile: 860-537-4432 Email: ecomite@scott-scott.com jguglielmo@scott-scott.com - and - Timothy J. Peter, Esq. FARUQI & FARUQI, LLP 1617 JFK Boulevard, Suite 1550 Philadelphia, PA 19103 Phone: 215-277-5770 Facsimile: 215-277-5771 Email: tpeter@faruqilaw.com MERIDIAN PAIN: Sent Unsolicited Text Messages, Alvarez Suit Says ---------------------------------------------------------------- Jennifer Alvarez, individually and on behalf of all others similarly situated, Plaintiff, v. Meridian Pain & Diagnostics, Inc. d/b/a Meridian Medspa, a Florida Corporation, Defendant, Case No. 1:19-cv-20219-CMA (S.D. Fla., January 16, 2019) is an action against Defendant to secure redress for violations of the Telephone Consumer Protection Act ("TCPA"). The Defendant is a medical spa. To promote its services, the Defendant sent text messages to Plaintiff'cellular telephone. The Defendant's unsolicited text messages caused Plaintiff actual harm, including invasion of his privacy, aggravation, annoyance, intrusion on seclusion, trespass, and conversion. Defendant's text messages also inconvenienced Plaintiff and caused disruption to his daily life, says the complaint. Through this action, Plaintiff seeks injunctive relief, statutory damages on behalf of herself and members of the class, and any other available legal or equitable remedies. Plaintiff is a natural person who, at all times relevant to this action, was a resident of Miami-Dade County, Florida. Defendant is a Florida corporation whose principal office is located at 6 Aragon Avenue, Miami, FL 33134. Defendant directs, markets, and provides its business activities throughout the State of Florida.[BN] The Plaintiff is represented by: Andrew J. Shamis, Esq. SHAMIS & GENTILE, P.A. 14 NE 1st Avenue, Suite 1205 Miami, FL 33132 Phone: 305-479-2299 Email: ashamis@shamisgentile.com - and - Scott Edelsberg, Esq. EDELSBERG LAW, PA 19495 Biscayne Blvd #607 Aventura, FL 33180 Phone: 305-975-3320 Email: scott@edelsberglaw.com MIDWAY IMPORTING: Court Enters Final Judgment in Prudencio Suit --------------------------------------------------------------- In the case, Balmore Prudencio and Michelle Quintero, individually on behalf of themselves and all others similarly situated, and John Does (1-100) on behalf of themselves and all others similarly situated, Plaintiffs, v. Midway Importing, Inc. and Grisi USA, LLC Defendants, Case No. 2:18-cv-01469-AB-RAO (C.D. Cal.), Judge Andre Birotte, Jr. of the U.S. District Court for the Central District of California entered Final Judgment in favor of the Defendants. The Defendants' Motion to Dismiss Second Amended Class Action Complaint came on for hearing on Dec. 14, 2018 at 8:00 a.m. On Dec. 19, 2018, after full consideration of the Motion and the arguments of the counsel, the Judge granted the Defendants' Motion, and dismissed the Second Amended Class Action Complaint with prejudice. A full-text copy of the Court's Jan 8, 2019 Final Judgment is available at https://is.gd/MIloc5 from Leagle.com. Nicky Rivera & John Does (1-100), on behalf of themselves and all others similarly situated, Plaintiffs, represented by David R. Shoop, Shoop APLC & Thomas S. Alch, Shoop APLC. Balmore Prudencio & Michelle Quintero, individually on behalf of themselves and all others similarly situated, Plaintiffs, represented by Adam R. Gonnelli, The Sultzer Law Group PC, pro hac vice, David R. Shoop, Shoop APLC & Thomas S. Alch, Shoop APLC. Midway Importing, Inc., Defendant, represented by Amy P. Lally -- alally@sidley.com -- Sidley Austin LLP, Michael L. Mallow -- MMALLOW@SIDLEY.COM -- Sidley Austin LLP, Alexandria V. Ruiz -- ARUIZ@SIDLEY.COM -- Sidley Austin LLP & Rachel Aleeza Straus -- RSTRAUS@SIDLEY.COM -- Sidley Austin LLP. Grisi USA, LLC, Defendant, represented by Rachel Aleeza Straus, Sidley Austin LLP. MONEY STORE: Court Refuses to Reconsider Asberry Suit Dismissal --------------------------------------------------------------- The United States District Court for the Central District of California issued an Order denying Plaintiffs' Motion for Reconsideration in the case captioned DARRELL ASBERRY, MICHAEL F. CORDES, SHIRLEY PIATT, on behalf of themselves and all others similarly situated, Plaintiffs, v. THE MONEY STORE, TMS MORTGAGE, INC., HOMEQ SERVICING CORP., WELLS FARGO BANK, N.A., Defendants. Case No. 2:18-CV-01291-ODW (PLAx). (C.D. Cal.). Darrel Asberry, Michael F. Cordes, and Shirley Piatt (Plaintiffs) bring this putative class action on behalf of themselves and two subclasses seeking damages for Defendants' allegedly fraudulent lending practices. The Court found the Plaintiffs' Fee Split Class II claims barred by res judicata and Late Fee Class II claims barred by the applicable statutes of limitation, absent some form of tolling. The Court found tolling unavailable under Am. Pipe & Const. Co. v. Utah, 414 U.S. 538 (1974), but possibly available for California residents under California's equitable tolling laws. Accordingly, the Court dismissed the Late Fee Class II's claims of non-California residents and the individual claims of Shirley Piatt, a non-California resident, without leave to amend. The Court granted leave to amend to Asberry, Cordes, and the California members of the Late Fee Class II, to the extent they could allege additional facts that would bring their claims within the reach of California's equitable tolling laws. Plaintiffs argue that the Court's dismissal of certain claims, without leave to amend, is clear error and contrary to controlling authority. Defendants respond that the Court committed no error, and that Plaintiffs' Motion is procedurally improper and merely rehashes arguments previously made, or which could have been made, in Plaintiffs' opposition to Defendants' motion to dismiss. The Plaintiffs move for reconsideration under Federal Rule of Civil Procedure 59(e) and Local Rule 7-18. Rule 59(e) provides a motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment. Rule 59(e) clearly contemplates entry of judgment as a predicate to any motion. Plaintiffs seek reconsideration of the Court's Order on Defendants' motion to dismiss, which is an interlocutory order, not a judgment. Because Plaintiffs seek reconsideration of an interlocutory order rather than a judgment, Rule 59(e) is not an appropriate basis for Plaintiffs' Motion. The Plaintiffs fail to address Local Rule 7-18's requirements. Plaintiffs do not provide a material difference in fact or law from that initially presented to the Court or claim the emergence of new material facts. Nor do Plaintiffs establish a manifest failure of the Court to consider material facts presented to it before issuing its Order. Instead, the Plaintiffs argue only that the Court erred, improperly rehashing arguments asserted in their prior opposition or raising new arguments or authority that could have been raised previously. A]motion for reconsideration cannot be used to ask the Court to rethink what the Court has already thought through merely because a party disagrees with the Court's decision. The Plaintiffs do precisely what Local Rule 7-18 prohibits. Disagreement with the rulings of this Court is not a proper ground for reconsideration. Accordingly, Plaintiffs' Motion for Reconsideration is denied. A full-text copy of the District Court's December 27, 2018 Order is available at https://tinyurl.com/y8lutqzt from Leagle.com. Shirley Piatt, on behalf of themselves and all others similarly situated, Darrell Asberry, on behalf of themselves and all others similarly situated & Michael Cordes, on behalf of themselves and all others similarly situated, Plaintiffs, represented by Robert J. Girard, II, Girard Bengali APC, Paul S. Grobman, The Law Offices of Paul Grobman, pro hac vice & Omar H. Bengali -- obengali@girardbengali.com -- Girard Bengali APC. The Money Store, TMS Mortgage Inc, Wells Fargo Bank, N.A. & HomEq Servicing Corporation, Defendants, represented by Amy P. Williams -- amy.williams@troutman.com -- Troutman Sanders LLP, pro hac vice & Jessica Rose Ellis Lohr -- jessica.lohr@troutmansanders.com -- Troutman Sanders LLP. NANO: Faces Fabian Suit Over Lost Investment -------------------------------------------- James Fabian, individually and on behalf of all others similarly situated, Plaintiff, v. Nano (f/k/a Raiblocks, Hieusys), Colin Lemahieu, Mica Busch, Zach Shapiro, Troy Retzer, BG Services, S.R.L. (f/k/a Bitgrail S.R.L., Webcoin Solutions) and Francesco "The Bomber" Firano, Defendants, Case No. 19-cv-00054 (N.D. Cal., January 3, 2019), seeks to recover rescissory, compensatory, punitive and injunctive relief for breach/rescission of contract, breach of fiduciary duty, aiding and abetting breach of fiduciary duty, aiding and abetting fraud, negligent misrepresentation, constructive fraud, negligence, unjust enrichment, conspiracy and violation of Sections 12(a)(1) and 15(a) of the Securities Act of 1933. Nano, LeMahieu, Busch and Shapiro promoted a cryptocurrency called "Nano," formerly known as RaiBlocks (XRB), and listed it on BitGrail, an Italian-based cryptocurrency exchange. However, it was never been registered as a security with the Securities and Exchange Commission and is not exempt from registration. On or about February 8, 2018, over 15 million XRB, bearing a market value of approximately $170 million were "lost" under the BitGrail platform. Fabian owned and held a total of 23,033 XRB in his BitGrail wallet with an estimated market value of approximately $275,000 as of February 8, 2018. [BN] Plaintiff is represented by: Rosanne L. Mah, Esq. LEVI & KORSINSKY, LLP 44 Montgomery Street, Suite 650 San Francisco, CA 94104 Telephone: (415) 373-1671 Facsimile: (415) 484-1294 - and - Donald J. Enright, Esq. John A. Carriel, Esq. LEVI &KORSINSKY, LLP 1101 30th Street, N.W., Suite 115 Washington, D.C. 20007 Telephone: (202) 524-4290 Facsimile: (202) 333-2121 Email: denright@zlk.com jcarriel@zlk.com - and - David C. Silver, Esq. Jason S. Miller, Esq. Todd R. Friedman, Esq. SILVER MILLER 11780 W. Sample Road Coral Springs, FL 33065 Telephone: (954) 516-6000 E-mail: DSilver@SilverMillerLaw.com JMiller@SilverMillerLaw.com TFriedman@SilverMillerLaw.com NATURAL HEALTH: Sued by Kauffman Over Pyramid Scheme in China ------------------------------------------------------------- DANIEL KAUFFMAN, Individually and on behalf of all others similarly situated v. NATURAL HEALTH TRENDS CORP., CHRIS T. SHARNG, and TIMOTHY S. DAVIDSON, Case No. 2:19-cv-00163 (C.D. Cal., January 8, 2019), alleges that the Plaintiff acquired Natural Health Trends securities at artificially inflated prices during the Class Period and was damaged upon the revelation of corrective disclosure. The quarter reports, annual reports and other statements filed by the Defendants with the United States Securities and Exchange Commission were materially false and/or misleading because they misrepresented and failed to disclose the following adverse facts pertaining to Natural Health Trends' business, operations, and prospects, the Plaintiff alleges. Specifically, the Plaintiff contends, the Defendants made false and/or misleading statements and/or failed to disclose that: (1) Natural Health Trends was operating as a pyramid scheme in China, which is contrary to Chinese law; (2) consequently, Natural Health Trends was not in compliance with applicable Chinese law; and (3) as a result, Defendants' statements about Natural Health Trends' business, operations, and prospects, were false and misleading and/or lacked a reasonable basis at all relevant times. Natural Health Trends operates as an international direct-selling and e-commerce company. Natural Health Trends is a Delaware corporation headquartered in Rolling Hills Estates, California. Chris T. Sharng has served as the Company's President since February 2007, and as a director since March 2012. Timothy S. Davidson has served as the Company's Chief Financial Officer and Senior Vice President since February 2007.[BN] The Plaintiff is represented by: Laurence M. Rosen, Esq. THE ROSEN LAW FIRM, P.A. 355 South Grand Avenue, Suite 2450 Los Angeles, CA 90071 Telephone: (213) 785-2610 Facsimile: (213) 226-4684 E-mail: lrosen@rosenlegal.com NCAA: Staggs' Injury Suit Transferred to N.D. Ill. -------------------------------------------------- The case captioned Sarah Staggs, as Personal Representative of the Estate of Jeffery Hugh Staggs, and on behalf of all others similarly situated, Plaintiff, v. National Collegiate Athletic Association (NCAA), Defendant, Case No. 19-cv-00013, (S.D. Cal., September 19, 2018), was transferred to the United States District Court for the Northern District of Illinois on January 2, 2019, under Case No. 19-cv-00013. Staggs played football at SDSU from 1965 to 1966 as a linebacker. While playing football, Staggs was knocked unconscious and suffered numerous serious concussions. The NCAA failed to provide appropriate medical treatment for these incidents despite the fact that Staggs often reported these injuries to the team staff. Staggs eventually underwent a neuropsychological evaluation and was diagnosed with mild cognitive impairment. Staggs ultimately passed away in September 2014. Daughter-in-law Sarah Staggs seeks economic, monetary, actual, consequential, compensatory and punitive damages for past, present, and future medical expenses, other out of pocket expenses, lost time and interest, lost future earnings and death for negligence and breach of contract. [BN] Plaintiff is represented by: Todd Logan, Esq. EDELSON PC 123 Townsend Street, Suite 100 San Francisco, CA 94107 Telephone: (415) 212-9300 Facsimile: (415) 373-9435 Email: tlogan@edelson.com NEVADA GOLD: D'Arcy Wants to Halt Maverick Merger, Seeks Financials ------------------------------------------------------------------- Peter D'Arcy, on behalf of himself and all others similarly situated, Plaintiff, v. Nevada Gold & Casinos, Inc., William J. Sherlock, William G. Jayroe, Frank Catania, Francis M. Ricci, Rudolph K. Kluiber and Shawn W. Kravetz, Defendants, Case No. 19-cv-00025, (D. Nev., January 3, 2019), seeks (i) to enjoin defendants and all persons acting in concert with them from proceeding with, consummating or closing the proposed acquisition of Nevada Gold by Maverick Casinos LLC, or rescinding it in the event defendants consummate the merger, (ii) rescissory damages, (iii) costs of this action, including reasonable allowance for plaintiff's attorneys' and experts' fees, and (iv) such other and further relief under the Securities Exchange Act of 1934. Each share of Nevada Gold common stock will be converted into the right to receive $2.50 in cash. Nevada Gold is a gaming company involved in financing, developing, owning, and operating gaming properties and projects gaming facility operations in Washington State and Nevada. Merger Agreement includes a "no solicitation" provision barring Nevada Gold from soliciting or encouraging the submission of a competing acquisition proposal. In addition, the proxy statement fails to provide any of the company's financial projections that were needed in the valuation analyses in connection with the proposed buyout, asserts the complaint. [BN] Plaintiff is represented by: Martin A. Muckleroy, Esq. MUCKLEROY LUNT, LLC 6077 S. Fort Apache Rd., Ste. 140 Las Vegas, NV 89148 Phone: (702) 907-0097 Fax: (702) 938-4065 Email: martin@muckleroylunt.com - and - Michael J. Palestina, Esq. Christopher R. Tillotson, Esq. KAHN SWICK & FOTI, LLC 206 Covington Street Madisonville, LA 70447 Tel: (504) 455-1400 Fax: (504) 455-1498 Email: michael.palestina@ksfcounsel.com Christopher.tillotson@ksfcounsel.com NEVADA GOLD: Monteverde & Associates Files Class Action Lawsuit --------------------------------------------------------------- Notice is hereby given that Monteverde & Associates PC has filed a class action lawsuit in the United States District Court for the Southern District of New York, Case No. 1:18-cv-11286-PGG, on behalf of public common shareholders of Nevada Gold & Casinos, Inc. ("Nevada Gold" or the "Company") (NYSE American: UWN) who hold Nevada Gold securities and have been harmed by Nevada Gold and its board of directors' (the "Board") alleged violations of Sections 14(a) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act") in connection with the sale of the Company to Maverick Casinos, LLC (the "Proposed Merger"). Under the terms of the Proposed Merger, Nevada Gold shareholders are only anticipated to receive $2.50 in cash for each share of Nevada Gold common stock they own (the "Merger Consideration"). The complaint alleges that the Merger Consideration is inadequate and that the proxy statement regarding the Proposed Merger (the "Proxy") provides shareholders with materially incomplete and misleading information regarding the Proposed Merger, in violation of Sections 14(a) and 20(a) of the Exchange Act. Specifically, the Proxy contains materially incomplete and misleading information concerning: (i) the Company's financial projections; (ii) the valuation analyses performed by the Company's financial advisor, Rossoff & Company, LLC, in support of its fairness opinion; and (iii) the background of the Proposed Merger. The special meeting of Nevada Gold shareholders is quickly approaching as the Proposed Merger is expected to close early 2019. If you wish to serve as lead plaintiff, you must move the Court no later than February 19, 2019. Any member of the putative class may move the Court to serve as lead plaintiff through counsel of their choice, or may choose to do nothing and remain an absent class member. Click here for more information: https://monteverdelaw.com/case/nevada-gold-casinos-inc. It is free and there is no cost or obligation to you. Juan E. Monteverde, Esq. Monteverde & Associates PC The Empire State Building 350 Fifth Ave, Suite 4405 New York, NY 10118 United States of America Telephone: (212) 971-1341 Email: jmonteverde@monteverdelaw.com [GN] OPKO HEALTH: Adsport Securities Suit Transferred to S.D. Fla. ------------------------------------------------------------- The case captioned Adsport, Inc., on behalf of itself and all others similarly situated, Plaintiff, v. OPKO Health, Inc. and Phillip Frost, Defendants, Case No. 18-cv-08456 (S.D. N.Y., September 17, 2018), was transferred to the United States District Court for the Southern District of Florida on January 2, 2019, under Case No. 19-cv-20003. Adsport seeks to recover compensable damages caused by violations of the federal securities laws and to pursue remedies under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. OPKO, a healthcare company, engages in the diagnostics and pharmaceuticals business in the United States and internationally. Phillip Frost has been its Chief Executive Officer and Chairman since March 2007. According to the complaint, the Defendants failed to disclose that Frost and OPKO were involved in orchestrating the acquisition of large quantities of stock at steep discounts and after securing a substantial ownership interest in them, engaged in illegal promotional activity and manipulative trading to artificially boost its stock price and to give the stock the appearance of active trading volume and eventually dump their shares into the inflated market, reaping millions of dollars at the expense of unsuspecting investors. On this news, shares of OPKO fell $1.01 or over 18%, before NASDAQ halted the trading of OPKO on September 7, 2018, at $4.58. To date, trading in OPKO remains halted, making the stock illiquid and virtually worthless. Adsport purchased Opko publicly traded common stock and lost substantially. [BN] Plaintiff is represented by: Robert N. Kaplan, Esq. Jeffrey P. Campisi, Esq. KAPLAN FOX & KILSHEIMER, LLP 850 Third Avenue, 14th Floor New York, NY 10022 Tel: (212) 687-1980 Fax: (212) 687-7714 Email: rkaplan@kaplanfox.com jcampisi@kaplanfox.com OPKO Health is represented by: Jared Mitchell Gerber, Esq. CLEARY GOTTLIEB One Liberty Plaza New York, NY 10006 Tel: (212) 225-2507 Email: jgerber@cgsh.com OVERTON RUSSELL: Luci Appeals Consumer Suit Ruling to 2nd Circuit ----------------------------------------------------------------- Plaintiff Patrick Luci filed an appeal from a District Court order issued on November 26, 2018, in his lawsuit entitled Luci v. Overton, Russell, Doerr and Donovan, LLP, et al., Case No. 18-cv-360, in the U.S. District Court for the Northern District of New York (Syracuse). The nature of suit is stated as consumer credit. As previously reported in the Class Action Reporter, the lawsuit was filed in March 2018. Overton Russell provides online payment services. The Company offers medical and commercial payment collection services. The appellate case is captioned as Luci v. Overton, Russell, Doerr and Donovan, LLP, et al., Case No. 18-3837, in the United States Court of Appeals for the Second Circuit.[BN] Plaintiff-Appellant Patrick Luci, on behalf of himself and others similarly situated, is represented by: Anthony Joseph Pietrafesa, Esq. LAW OFFICE OF ANTHONY J. PIETRAFESA 210 Bell Court Schenectady, NY 12303 Telephone: (518) 218-0851 Facsimile: (518) 514-1241 E-mail: ajp@ajp1law.com - and - Evan Rothfarb, Esq. SCHLANGER LAW GROUP 9 East 40th Street New York, NY 10016 Telephone: (212) 500-6114 E-mail: erothfarb@consumerprotection.net - and - Daniel Adam Schlanger, Esq. KAKALEC & SCHLANGER, LLP 85 Broad Street New York, NY 10004 Telephone: (212) 500-6114 E-mail: dschlanger@consumerprotection.net Defendants-Appellees Overton, Russell, Doerr and Donovan, LLP, Thomas R. McCormick, Brian S. Strohl and Linda L. Donovan are represented by: Paul Andrew Sanders, Esq. BARCLAY DAMON, LLP 2000 Five Star Bank Plaza 100 Chestnut Street Rochester, NY 14604 Telephone: (585) 295-4426 E-mail: psanders@barclaydamon.com PACIFIC BIOSCIENCES: Speiser Balks at Merger Deal with Illumina --------------------------------------------------------------- DAVID SPEISER, On Behalf of Himself and All Others Similarly Situated. The Plaintiff, vs. PACIFIC BIOSCIENCES OF CALIFORNIA, INC., MICHAEL HUNKAPILLER, DAVID BOTSTEIN, WILLIAM ERICSON, CHRISTIAN HENRY, RANDY LIVINGSTON, JOHN F. MILLIGAN, MARSHALL L. MOHR, KATHY ORDONEZ, and LUCY SHAPIRO, the Defendants, Case No.: 3:19-cv-00072 (W.D. Cal., Jan. 4, 2019), seeks to enjoin vote on a proposed merger transaction pursuant to which Pacific Biosciences will be acquired by Illumina, Inc. through its wholly owned subsidiary, FC Ops Corp. The case is a class action brought on behalf of the public stockholders of Pacific Biosciences of California, Inc. against Pacific Biosciences and the members of its Board of Directors for their violations of Sections 14(a) and 20(a) of the Securities Exchange Act of 1934, and U.S. Securities and Exchange Commission. According to the complaint, on November 1, 2018, Pacific Biosciences and Illumina issued a joint press release announcing they had entered into an Agreement and Plan of Merger dated November 1, 2018 to sell Pacific Biosciences to Illumina. Under the terms of the Merger Agreement, Pacific Biosciences stockholders will be entitled to receive $8.00 per share in cash. The Proposed Transaction has a total enterprise value of approximately $1.2 billion on a fully diluted basis. On December 18, 2018, Pacific Biosciences filed a Definitive Proxy Statement on Schedule 14A with the SEC. The Proxy Statement, which recommends that Pacific Biosciences stockholders vote in favor of the Proposed Transaction, omits and/or misrepresents material information concerning, among other things: (i) the data and inputs underlying the financial valuation analyses that support the fairness opinion provided by the Company's financial advisor, Centerview Partners LLC; (ii) the background process leading to the Proposed Transaction; and (iii) Company insiders’ potential conflicts of interest. The failure to adequately disclose such material information constitutes a violation of Sections 14(a) and 20(a) of the Exchange Act as Pacific Biosciences stockholders need such material information in 2 order to cast a fully-informed vote or seek appraisal in connection with the Proposed Transaction. In short, unless remedied, Pacific Biosciences' public stockholders will be forced to make a voting or appraisal decision on the Proposed Transaction without full disclosure of all material information concerning the Proposed Transaction being provided to them. Plaintiff seeks to enjoin the stockholder vote on the Proposed Transaction unless and until such Exchange Act violations are cured, the lawsuit says. Pacific Biosciences is a biotechnology company founded in 2004 that develops and manufactures systems for gene sequencing and some novel real time biological observation. PacBio describes its platform as single molecule real time sequencing, based on the properties of zero-mode waveguides.[BN] Attorneys for Plaintiff: Joel E. Elkins, Esq. WEISSLAW LLP 9107 Wilshire Blvd., Suite 450 Beverly Hills, CA 90210 Telephone: 310 208-2800 Facsimile: 310 209-2348 E-mail: jelkins@weisslawllp.com PARTNERS REIT: Gets Court Approval of Settlement of Class Action ---------------------------------------------------------------- Partners Real Estate Investment Trust ("Partners REIT" or the "REIT") (TSX:PAR.UN) is pleased disclosed that the terms of the Class Action settlement previously announced on October 31, 2018 between, among others, certain former trustees and a former officer of Partners REIT, have been approved by the Ontario Superior Court of Justice. Pursuant to those terms, the Class Action will be formally dismissed on or around January 28, 2019. The REIT is not a defendant in the Class Action. About Partners REIT Partners REIT is a real estate investment trust that manages a portfolio of retail and mixed-use community and neighbourhood shopping centres located in both primary and secondary markets across Canada. [GN] PERSONAL-TOUCH: Cucinotta Hits Misclassification, Claims Overtime ----------------------------------------------------------------- Christine Cucinotta, for herself and all others similarly situated, Plaintiff, v. Personal-Touch Home Care of N.Y., Inc., Personal-Touch Home Care of Baltimore, Inc., Robert Marx and Felix Glaubach, Defendants, Case No. 19-cv-00057 (E.D. N.Y., January 3, 2019), seeks to recover unpaid wages and related penalties and damages pursuant to the Fair Labor Standards Act of 1938, the Maryland Wage and Hour Law and the Maryland Wage Payment and Collection Law. Personal-Touch provides home health care services in Maryland where Cucinotta worked as a full-time registered nurse from March 2013 to September 2017. She was allegedly misclassified as exempt from overtime compensation claiming she would receive the same salary each week, regardless of the duration of each visit. [BN] Plaintiff is represented by: Gregg I. Shavitz, Esq. Alan Quiles, Esq. SHAVITZ LAW GROUP, PA 1515 S. Federal Highway, Suite 404 Boca Raton, FL 33432 Tel: (561) 447-8888 Fax: (561) 447-8831 Email: gshavitz@shavitzlaw.com aquiles@shavitzlaw.com - and - Michael J. Palitz, Esq. SHAVITZ LAW GROUP, P.A. 830 3rd Avenue, 5th Floor New York, NY 10022 Telephone: (800) 616-4000 Email: mpalitz@shavitzlaw.com - and - James B. Zouras, Esq. Teresa M. Becvar, Esq. Ryan F. Stephan, Esq. STEPHAN ZOURAS, LLP 205 N. Michigan Avenue, Suite 2560 Chicago, IL 60601 Email: jzouras@stephanzouras.com tbecvar@stephanzouras.com PHELAN HALLINAN: Pa. Super. Affirms Demurrer Order in Johnson Suit ------------------------------------------------------------------ In the case, EDELLA JOHNSON (A/K/A EDELLA ROBINSON A/K/A EDELLA ROBINSON JOHNSON), ERIC JOHNSON, INDIVIDUALLY AND ON BEHALF OF OTHER SIMILARLY SITUATED FORMER AND CURRENT HOMEOWNERS IN PENNSYLVANIA. Appellants, v. PHELAN HALLINAN & SCHMIEG, LLP, Case No. 359 WDA 2017 (Pa. Super.), Judge Mary Jane Bowes of the Superior Court of Pennsylvania affirmed the trial court's Feb. 6, 2017 order sustaining the preliminary objections in the nature of a demurrer filed by Phelan. The Johnsons, individually and on behalf of other similarly-situated, are former and current homeowners in Pennsylvania. On May 23, 2002, the Johnsons executed a mortgage and associated promissory note in the amount of $74,000. The mortgage was secured by property located at Collins Avenue, Pittsburgh, Allegheny County. That instrument was duly delivered, recorded, and subsequently assigned to the Bank of New York Mellon Trust Co. In December 2008, the Johnsons defaulted on the mortgage. On March 31, 2009, Mellon, through its counsel, Phelan, filed a complaint in mortgage foreclosure. In the complaint, Mellon asserted, inter alia, that the Johnsons owed $1,300 in attorney fees. After a non-jury trial, the trial court found in favor of Mellon. The Johnsons appealed that decision. On March 23, 2012, while the foreclosure action was pending, the Johnsons initiated the instant class action against Phelan. In their complaint, the Johnsons alleged, inter alia, that Phelan violated section 406 of the Pennsylvania Loan Interest and Protection Law, by pursuing an award of attorney fees in the mortgage foreclosure action that were not actually incurred. They argued further that the same harm had been suffered by other former and current Pennsylvania homeowners against whom Phelan had filed foreclosure complaints. In reliance on section 502 of Act 6,3 which provides remedies for violations of section 406, the Johnsons claimed that they and other similarly-situated mortgagors were entitled to treble damages for excess attorney fees assessed by Phelan. Phelan filed preliminary objections in the nature of a demurrer, contending that section 406 applies solely to "residential mortgage lenders," and not to their foreclosure counsel. On May 2, 2012, the trial court sustained Phelan's preliminary objections, and consolidated the matter for appeal with another case raising similar issues, Glover v. Udren Law Offices, P.C., docketed in the Allegheny County Court of Common Pleas at GD-11-18015. In the consolidated appeal, the Court affirmed the trial court's order. Subsequently, the Pennsylvania Supreme Court reversed, holding that foreclosure counsel constituted a "person" for purposes of section 502, and, thus, a borrower may recover under section 502 from any entity -- not solely the residential mortgage lender -- that collects excessive attorney's fees in connection with a foreclosure. However, the High Court offered no opinion regarding the term "collected," as used in section 502, and remanded the matter for further proceedings. On remand, Phelan again filed preliminary objections in the nature of a demurrer. However, for the first time, it asserted that the Johnsons were barred from pursuing relief under Act 6 because their $74,000 mortgage did not qualify as a "residential mortgage" under section 101 of the Act, as their mortgage exceeded the $50,000 statutory limit in effect at the time it was executed in 2002. The Johnsons maintained that the court should apply the version of section 101 in effect in 2009, at the time the foreclosure action was commenced, which raised the limit for a "residential mortgage from $50,000 to $217,873. On Nov. 30, 2016, the trial court sustained Phelan's preliminary objection based on collateral estoppel. The Johnsons filed a motion for reconsideration. The trial court granted reconsideration so that the three remaining preliminary objections could be ruled upon. On Feb. 6, 2017, the trial court sustained the first preliminary objection on the basis that the version of section 101 in effect at the time the mortgage was executed was controlling, and the Johnsons were precluded from bringing an action against Phelan under Act 6 because their mortgage was not a "residential mortgage" under the Act. In so finding, the trial court determined that, when the legislature amended section 101 in 2008, it did not manifest an intent that the amendment apply retroactively. The Johnsons filed a timely notice of appeal. Since the trial court did not order the Johnsons to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, the court did not isssue a Pa.R.A.P. 1925(a) opinion, and instead entered an order indicating its reliance on its Feb. 6, 2017 opinion and order. The Johnsons contend that the trial court erred by applying the version of section 101 in effect at the time their mortgage was executed in 2002, rather than the version of section 101 in effect at the time the foreclosure action was initiated in 2009. They also challenge the trial court's reliance on Murphy and Trunzo, on the basis that those cases applied federal decisional law that did not involve foreclosure actions. Finally, the Johnsons argue that the trial court's interpretation of Act 6 fails to effectuate the Act's remedial purpose, and would leave an enormous number of homeowners without protection under Act 6. Judge Bowes concludes that the Johnsons' mortgage is not a residential mortgage protected by Act 6. The mortgage simply did not meet section 101's definition of a "residential mortgage" because the principal amount exceeded the $50,000 limit for residential mortgages in place at the time the transaction was consummated in 2002. The 2008 amendment to Act 6 cannot be retroactively applied to their 2002 mortgage. Since the Johnsons' mortgage is not a "residential mortgage" under the Act, they are without a predicate violation of Act 6 for which they can recover under section 502. She therefore holds that the trial court did not err in sustaining Phelan's preliminary objections in the nature of a demurrer on the basis that the Johnsons failed to state a claim under the Act. Accordingly, she affirmed. A full-text copy of the Court's Jan 8, 2019 Opinion is available at https://is.gd/tgozqD from Leagle.com. Michael P. Malakoff, for Appellants, Eric Johnson and EdElla Johnson. Rachel Anne Labush, Community Legal Services of Philadelphia, for Amicus, Regional Housing Legal Services, Philadelphia Legal Assistance, Pennsylvania Legal Aid Network, Neighborhood Legal Services Association, Community Legal Services and Community Justice Project. Jonathan J. Bart -- jbart@wilentz.com -- Wilentz, Goldman & Spitzer, P.A., for Appellee, Phelan Hallinan & Schmieg LLP. PLAINS ALL: Santa Barbara County Property Owners File Class Action ------------------------------------------------------------------ Santa Barbara Edhat reports that an amended class action and individual lawsuits were filed against Plains All American Pipeline by Santa Barbara County property owners who have easement contracts with Plains and whose properties were impacted during the 2015 Refugio oil spill. (Grey Fox, LLC et. al v. Plains All American Pipeline, L.P., et. al, U.S. District Court, Central District, Case Number 2:16-cv-03157-PSG-JEM, December 17, 2018). Plains built pipelines to transport crude oil and other liquids from the California coast to inland refinery markets in California. The pipelines, Lines 901 and 903, were built in 1991 after property owners signed easement contracts with Plains' predecessor Celeron Pipeline Company of California. Plains is seeking to construct a second pipeline, Lines 901R and 903R, using the existing easement contracts that were negotiated almost 30 years ago. The Plains construction proposal, according to the complaint, contemplates construction of an entirely new pipeline system, using three separate crews, each using 87 vehicles and more than 200 employees, working 13 to 24 hours per day, six days a week. A fourth crew of 27 employees and 27 vehicles will be utilized to flush, clean and stabilize the existing system before abandoning it in place. Even by Plains' own estimates, this construction process will take between 15 and 21 months with more than 336 vehicles, transporting up to 740 employees, with more than 350 round trips to and from the job site each day. "Plains is claiming rights in its construction permits that far exceed those granted in the easements," says A. Barry Cappello, Esq. -- abc@capellonoel.com -- managing partner of Cappello & Noël LLP and lead trial attorney for the plaintiffs. "Just about every contract expressly limits Plains to one pipeline on the easements. These easements do not allow for the construction of an entirely new pipeline, and certainly do not allow prolonged and disruptive construction." The easement contracts state that Plains would maintain, operate and repair the pipeline as needed. "Clearly this was not done," says Cappello. "Besides everything else, there is obviously a trust issue." After the 2015 oil spill, Plains was convicted of nine counts of criminal wrongdoing including one felony conviction related to its negligent operation of the pipeline, which resulted in the oil spill. The plaintiffs, among other demands, are seeking an injunction prohibiting Plains from attempting to utilize the existing easements for the construction and maintenance of a second pipeline. They are also demanding that Plains be required to provide appropriate compensation to the plaintiffs for any additional property rights, property cleanup, ongoing risk, burden and access needed to complete the construction process and consistently maintain the pipeline in a sound manner. [GN] PONTILLO'S PIZZERIA: Ragaglia Seeks Overtime Pay, Hits Tip Pool --------------------------------------------------------------- Andrew Ragaglia, individually and on behalf of all others similarly situated, Plaintiffs, v. Pontillo's Pizzeria-Gates, Pontillo's Pizzeria-Spencerport, Joe Stephens, in his official and individual capacity, and Does 1–50, inclusive, Defendants, Case No. 19-cv-06006 (W.D. N.Y., January 2, 2019), seeks unpaid overtime compensation, withheld tips, including redress for failure to provide wage statements, liquidated damages, prejudgment and post-judgment interest pursuant to the Fair Labor Standards Act and New York Labor Law. Defendants operate pizzerias in New York under the name "Pontillo's Pizzeria" where Ragaglia worked as a delivery man. He regularly worked in excess of 40 hours per week without being paid overtime pay. Pontillo's also took out a tip credit from his tips without a proper tip credit notice requirement, says the complaint. [BN] The Plaintiff is represented by: Benjamin Weisenberg, Esq. THE OTTINGER FIRM, P.C. 401 Park Avenue South New York, NY 10016 Telephone: (212) 571-2000 Fax: (212) 571-0505 Email: benjamin@ottingerlaw.com PROGRESSIVE PREFERRED: Martinez et al. Suit Moved to D.N.M. ----------------------------------------------------------- A case, Diane Martinez and Erin Martin, individually and on behalf of other similarly situated individuals, the Plaintiffs. vs. Progressive Preferred Insurance Company, Progressive Classic Insurance Company, Progressive Casualty Insurance Company, Progressive Direct Insurance Company, Progressive Advanced Insurance Company, Progressive Specialty Insurance Company, and Progressive Northern Insurance Company, the Defendants, Case No. 18-CV-03583, was removed from the Second Judicial District Court, to the U.S. District Court for the District of New Mexico on Jan. 4, 2019. The District of New Mexico Court Clerk Assigned Case No. 1:19-cv-00004-JHR-KBM to the proceeding. The suit alleges insurance contract related violation. The case is assigned to the Hon. Magistrate Judge Jerry H. Ritter. Progressive Preferred Insurance Company provides personal and commercial property-casualty insurance products. Progressive Classic Insurance Company, Inc offers property and casualty insurance products.[BN] Attorneys for Plaintiffs: Corbin Hildebrandt, Esq. CORBIN HILDEBRANDT, P.C. 1400 Central Ave. S.E. Albuquerque, NM 87106 Telephone: (505) 998-6626 Facsimile: (505) 998-6628 E-mail: corbin@hildebrandtlawnm.com Sycamore Square, Suite 2000 - and - David A. Freedman, Esq. Jeremy Daniel Farris, Esq. FREEDMAN BOYD HOLLANDER GOLDBERG URIAS & WARD P.A. 20 First Plaza, Suite 700 Albuquerque, NM 87102 Telephone: (505) 842-9960 Facsimile: (505) 842-0761 E-mail: daf@fbdlaw.com jdf@fbdlaw.com - and - Kedar Bhasker, Esq. 1400 Central Avenue SE, Suite 2000 Albuquerque, NM 87106 Telephone: (505) 720-2113 E-mail: kedar@bhaskerlaw.com Attorneys for Defendants: Meena H Allen, Esq. ALLEN LAW FIRM, LLC 6121 Indian School Rd. NE, Suite 230 Albuquerque, NM 87110 Telephone: (505) 298-9400 E-mail: mallen@mallen-law.com RECIPES INC: Denied Workers Overtime Pay, Withheld Tips, Says Fabry ------------------------------------------------------------------- Leah Fabry and Lauren Connors, on behalf of themselves and all others similarly situated, Plaintiffs, v. Recipes Inc. and Trung Huynh, Defendants, Case No. 19-cv-10020 (E.D. Mich., January 3, 2019), seeks to recover unpaid overtime compensation and illegally withheld tips under the provisions of the Fair Labor Standards Act of 1938. Leah Fabry and Lauren Connors are former servers of Recipes Inc., a restaurant with three Michigan locations, owned and operated by Trung Huynh. Recipes is accused of failing to pay staff for time spent in mandatory work meetings and cleaning at the end of the closing shift and of compelling their wait staff to contribute a portion of their tips to a pool, which were in turn distributed to non-tipped employees. [BN] Plaintiff is represented by: Megan A. Bonanni, Esq. Channing Robinson-Holmes, Esq. PITT MCGEHEE PALMER & RIVERS, P.C. 117 W. Fourth Street, Suite 200 Royal Oak, MI 48067 Tel: (248) 398-9800 Email: mbonanni@pittlawpc.com RESURGENT CAPITAL: Collazo Suit Asserts FDCPA Violation ------------------------------------------------------- Lindsey Collazo, individually and on behalf of others similarly situated, Plaintiff, v. Resurgent Capital Services L.P., and LVNV Funding, LLC, Defendants, Case No. 6:19-cv-06050-EAW (W.D. N.Y., January 16, 2019) brought this action for damages arising from Defendant's violations of the Fair Debt Collection Practices Act ("FDCPA"). In its initial communication with a consumer, a debt collector must state "that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose." On or about November 14, 2018, Defendant had its initial communication with Plaintiff by mailing her a letter. This letter does not state that it is an attempt to collect a debt, and that any information obtained will be used for that purpose. By neglecting to disclose these pieces of information, Resurgent violated the FDCPA, asserts the complaint. Plaintiff seeks an award of statutory damages for the Defendants' FDCPA violation. Plaintiff is a natural person residing in Chili, New York. Plaintiff is a "consumer" as defined in the FDCPA. Resurgent is a limited partnership formed under the laws of Delaware, the principal purpose of whose business is the collection of debts, with a principal place of business at 55 Beattie Place, Suite 110, Greenville, South Carolina, 29601. LVNV is an LLC formed under the laws of Delaware, whose principal business purpose is the collection of debts, with its principal office located at 200 Meeting Street, Suite 206, Charleston, South Carolina, 29401-3187.[BN] The Plaintiff is represented by: Alexander J. Douglas, Esq. DOUGLAS FIRM, P.C. 36 West Main Street, Ste 500 Rochester, NY 14614 Phone: (585) 568-2224 Fax: (585) 546-6185 Email: alex@lawroc.com RUSS DARROW: Court Consolidates 2 FLSA Suits -------------------------------------------- The United States District Court for the Eastern District of Wisconsin issued an Order granting Defendant's Motion for Consolidation in the cases captioned TIFFANY UNDERWOOD, Plaintiff, v. RUSS DARROW GROUP INC., RUSS DARROW GREENFIELD LLC, and RUSS DARROW DODGE LLC, Defendants. TIFFANY UNDERWOOD, Plaintiff, v. RUSS DARROW DODGE LLC, Defendant. Case Nos. 18-CV-1527-JPS, 18-CV-1528-LA (E.D. Wis.). The Plaintiff filed two civil actions. The first is a class action asserting violations of the Fair Labor Standards Act (FLSA) and the Wisconsin Wage Payment and Collection Laws (WWPCL), with respect to employees of the Defendants' Business Development Center. The second complaint alleges the same theories, but this time for Plaintiff herself on an individual basis. The Plaintiff has not filed an opposition to the motion and the time in which to do so has expired. Civ. L. R. 7(h). Accordingly, the Defendants' motion to consolidate, 18-CV-1527 and 18-CV-1528 be and the same is granted. A full-text copy of the District Court's December 27, 2018 Order is available at https://tinyurl.com/ya74sqg6 from Leagle.com. Tiffany Underwood, Plaintiff, represented by David M. Potteiger -- dpotteiger@walcheskeluzi.com -- Walcheske & Luzi LLC, James A. Walcheske -- jwalcheske@walcheskeluzi.com -- Walcheske & Luzi LLC & Scott S. Luzi -- sluzi@walcheskeluzi.com -- Walcheske & Luzi LLC. Russ Darrow Group Inc, Russ Darrow Greenfield LLC & Russ Darrow Dodge LLC, Defendants, represented by Jesse R. Dill, Ogletree Deakins Nash Smoak & Stewart PC & Keith E. Kopplin, Ogletree Deakins Nash Smoak & Stewart PC. SANTA CLARA, CA: Summary Judgment in Estorga FLSA Suit Partly OK'd ------------------------------------------------------------------ In the case, ROBERT ESTORGA, et al., Plaintiffs, v. SANTA CLARA VALLEY TRANSPORTATION AUTHORITY, Defendant, Case No. 16-cv-02668-BLF (N.D. Cal.), Judge Beth Labson Freeman of the U.S. District Court for the Northern District of California, San Jose Division, (i) granted in part and denied in part VTA's motion for summary judgment, and granted in part and denied in part Estorga's motion for summary judgment. On May 17, 2016, Estorga filed the complaint in this action on behalf of himself and others similarly situated, alleging that Defendant willfully violated the Fair Labor Standards Act ("FLSA") by failing to compensate Estorga and those similarly situated at one and one-half times their regular rate for certain hours "worked" in excess of 40 hours in a workweek. The Plaintiffs are seeking overtime pay for "hours worked" for start-end travel and split-shift travel. Under the current collective bargaining agreement, the bus drivers are paid an agreed amount for that travel time but it does not count toward overtime premium pay. In the start-end scenario, bus drivers begin and end their shifts at different locations throughout the district; not at their home yard. In split-shift situations, a bus driver's morning shift might end at one location and hours later the bus driver may begin the next portion of the shift at a different location. On Sept. 12, 2016, the Court dismissed the Plaintiffs' original complaint with leave to amend. Estorga subsequently filed his first amended complaint ("FAC") on Sept. 30, 2016. On June 15, 2017, the Court granted Estorga's motion to conditionally certify an FLSA collective action as to persons who are or have been employed by VTA and perform or performed services as a bus operator who are not members of the Rai settlement class. The opt-in plaintiffs filed notices of consent to join the collective action between Aug. 4, 2017 and Sept. 11, 2017. The parties filed their respective motions for summary judgment on Sept. 13, 2018. On Nov. 1, 2018, the Court held a hearing on the motions for summary judgment. The Plaintiffs move for summary judgment of two issues: whether (1) "start-end" travel time and (2) "split-shift" travel time constitute "hours worked" and are thus compensable under the FLSA. They seek overtime compensation for those two types of travel time only. The Defendant moves for summary judgment of the same two issues as the Plaintiffs, as well as two additional issues: whether (1) the Defendant may offset any liability with the overtime premiums it pays which are more generous than what is required by the FLSA; and (2) that it acted in good faith and did not willfully violate the FLSA. The parties' motions are effectively cross-motions with respect to whether start-end travel time or split-shift travel time is compensable under the FLSA. Thus, Judge Freeman addresses the following issues: (A) background principles concerning "hours worked" under the FLSA; (B) whether the drivers' start-end travel time is compensable under the FLSA; (C) whether the drivers' split-shift travel time is compensable under the FLSA; (D) whether VTA is entitled to offset any resulting liability with other overtime premium payments; and (E) whether VTA acted in good faith and did not willfully violate the FLSA. The Judge For the foregoing reasons, IT IS HEREBY ORDERED that: (i) granted in part and denied in part VTA's motion for summary judgment, and granted in part and denied in part Estorga's motion for summary judgment. The Judge granted VTA's motion for summary judgment that the Plaintiffs' start-end travel time is not compensable under the FLSA, and denied Estorga's motion for summary judgment that the start-end travel time is compensable. She granted Estorga's motion for summary judgment that the Plaintiffs' split-shift travel time is compensable under the FLSA, and denied VTA's motion for summary judgment that the split-shift travel time is not compensable. She also granted VTA's motion for summary judgment with respect to offsetting start-end/split-shift overtime liability with other premium payments it makes to the extent those other payments include elapsed time payments, daily overtime payments, weekly overtime payments based on sick leave, and holiday pay as described in her Opinion. Finally, she granted VTA's motion for summary judgment that it has acted in good faith and did not willfully violate the FLSA. Judge Freeman finds that (i) the Plaintiffs' start-end travel time is not compensable under the FLSA; (ii) the Plaintiffs' split-shift travel time is compensable under the FLSA; (iii) VTA's elapsed time payments are a premium paid for hours in excess of the employee's normal working hours or regular working hours, or in pursuance of the CBA, for work outside of the hours established by the CBA as the basic, normal, or regular workday; and (iv) the "extra" compensation paid by VTA for both daily overtime and weekly overtime where sick leave is counted for purposes of the overtime calculation qualifies for an offset under 29 U.S.C. Section 205(e)(5). She also finds that VTA's actions with respect to its FLSA legal obligations were reasonable, or at the very least, not reckless, and accordingly cannot be deemed willful; and agrees that the Defendant has demonstrated good faith. Moreover, she finds that the Plaintiffs failed to respond to the Defendant's good faith argument in their Opposition brief -- a single mention of "good faith" appears, but in the Plaintiffs' willfulness argument. A full-text copy of the Court's Jan 4, 2019 Order is available at https://is.gd/Z4OIWL from Leagle.com. Robert Estorga, on behalf of himself and other persons similarly situated, Plaintiff, represented by Benjamin Kerl Lunch -- unch@neyhartlaw.com -- Neyhart Anderson Flynn & Grosboll., Tanisha Maria Shafer, Neyhart, Anderson, Flynn and Grosboll & William James Flynn -- wflynn@neyhartlaw.com -- Neyhart, Anderson, Flynn and Grosboll. Santa Clara Valley Transportation Authority, Defendant, represented by Arthur A. Hartinger -- ahartinger@publiclawgroup.com -- Renne Sloan Holtzman Sakai LLP, Kevin P. McLaughlin -- mclaughlin@publiclawgroup.com -- Renne Sloan Holtzman Sakai LLP & Paul D. Ahn -- paul.ahn@vta.org -- Office of the General Counsel. SC DATA: 8th Cir. Vacates Schumacher FCRA Suit Settlement Approval ------------------------------------------------------------------ In the case, Ria Schumacher, Individually and on Behalf of All Others, Plaintiff-Appellee, v. SC Data Center, Inc., doing business as Colony Brands, Inc., Defendant-Appellant, Case No. 17-3112 (8th Cir.), Judge L. Steven Grasz of the Court of Appeals for the Eighth Circuit vacated the district court's approval of the settlement agreement, and remanded the case. After the parties reached a tentative settlement in the purported class action, SC Data moved to dismiss the case on the ground that the class representative, Schumacher, lacked standing. However, the district court enforced the settlement between the parties without deciding the standing issue. SC Data appeals, arguing the district court erred by not deciding standing first. In February 2016, Schumacher filed a purported class action in the Circuit Court of Cole County, Missouri, alleging that SC Data committed three violations of the Fair Credit Reporting Act ("FCRA"). SC Data removed the case to federal court. In May 2016, the parties reached a tentative settlement agreement during mediation. Four days later, the Supreme Court released its opinion in Spokeo v. Robins, holding that the Ninth Circuit failed to properly analyze Article III standing in assessing a claim brought under the FCRA. Subsequently, in July 2016, SC Data moved to dismiss the action for lack of standing. The district court denied the motion, concluding that Schumacher's standing to bring the FCRA claims underlying the settlement is irrelevant to whether she has standing to enforce the parties' settlement agreement. The district court ordered the parties to submit their settlement agreement for approval under Fed. R. Civ. P. 23(e), and they complied. The district court approved the settlement, and SC Data timely appealed the decision. Judge Grasz agrees with SC Data that the district court erred by not assessing standing before enforcing the settlement agreement. Article III standing must be decided first by the court and presents a question of justiciability; if it is lacking, a federal court has no subject-matter jurisdiction over the claim. Thus, because the district court's act in approving a class settlement was a court judgment, it erred when it did not first assess standing. Because there is no finding in the record regarding whether Schumacher had standing to pursue her claims, the Judge vacated the district court's approval of the settlement agreement and remanded the case for a decision on whether Schumacher has standing. He expresses no view on whether the Seventh Circuit's opinion on FCRA standing or one of the competing approaches in other circuits is best applied to the facts of the case. A full-text copy of the Court's Jan 8, 2019 Order is available at https://is.gd/cfqQ8Q from Leagle.com. John T. Walsh, for Defendant-Appellant. Charles Jason Brown -- cbrown@gsbblaw.com -- for Plaintiff-Appellee. Jayson A. Watkins, for Plaintiff-Appellee. Paul E. Benson -- pebenson@michaelbest.com -- for Defendant-Appellant. Michelle L. Dama -- mldama@michaelbest.com -- for Defendant-Appellant. James P. Sanders -- jsanders@reedsmith.com -- for Defendant-Appellant. Amy O. Bruchs -- aobruchs@michaelbest.com -- for Defendant-Appellant. SCOTT SEMPLE: Judge Rejects Efforts By State To Dismiss Suit ------------------------------------------------------------ Will Healey, writing for Journal Inquirer, reports that a U.S. District Court judge has rejected efforts by the state to strike down a class-action lawsuit brought against Correction Commissioner Scott Semple in July. The lawsuit, which currently has five plaintiffs, accuses Semple of refusing to provide sufficient medical treatment to state prison inmates with hepatitis C. The lawsuit, brought by Hartford lawyers Kenneth J. Krayeske, Esq. -- attorney@kenkrayeske.com -- and DeVaughn L. Ward, Esq. says the Correction Department does not have census numbers for how many of its patients have hepatitis C, which can lead to serious health problems including liver failure and ultimately death. It also says that Semple, in his official capacity as head of the Department of Correction, has failed to provide inmates with access to medications that can cure hepatitis C. Semple has said that treating the state's inmate population for hepatitis C is challenging, given several factors such as the different variations of the illness, and how much time an inmate is in the state's custody. He's also said the high cost of the medication is an issue. The ruling, issued by U.S. District Court Judge Michael P. Shea, grants Krayeske and Ward's Nov. 20 motion to amend their original complaint, brought by inmate Robert Barfield, and add inmates Darnell Tatem, Jason Barberi, John Knapp, and Curtis Davis in the action against Semple, who is represented by the state Office of the Attorney General. Shea wrote in his ruling that the state's argument that the amended complaint contains irrelevant and unnecessary allegations about medical issues and interactions with non-defendants is "irrelevant to allegations of deliberately indifferent medical care, which may require an understanding of a person's medical history, or to allegations of a failure to supervise, which may require an understanding of interactions with subordinates." Shea also rejected the state's assertion that the plaintiffs' money damages claims are futile on the grounds of a lack of supervisory liability, a lack of standing, and Semple's entitlement to qualified immunity. Shea cited a 1995 court decision that provides for supervisory liability in certain instances, and wrote that a determination about qualified immunity at this stage in the litigation would be "premature." Shea also rejected the state's opposition to the joining of the plaintiffs in the action against Semple in his individual capacity, citing a federal rule that allows for defendants to be joined in an action if any right to relief is asserted against them jointly, arising out of the same "transaction," or if any question of law or fact common to all defendants will arise in the action. The lawsuit is one of several brought against the Correction Department by Krayeske and Ward. Another inmate they represented, Wayne World, who had claimed that his cancer was misdiagnosed and not treated in an timely manner, settled with the state for $1.3 million in August. [GN] SELDAT INC: Misclassified Security Guards, D'Carpio Alleges ----------------------------------------------------------- DOMENICO D'CARPIO, Individually and On Behalf of all Others Similarly Situated v. SELDAT, INC., Case No. 2:19-cv-00174 (C.D. Cal., January 8, 2019), alleges that while working as a security guard for Seldat, the Plaintiff was improperly classified as an independent contractor, although the work he performed for Seldat was that of an employee both under the Fair Labor Standards Act and the California Labor Code. As a result of this misclassification, the Plaintiff and the class were unlawfully deprived of overtime pay; deprived of meal and rest breaks; and not given proper wage statements, according to the complaint. Seldat, Inc., is a self-described "supply chain" company with its headquarters in the state of New Jersey, which maintains work locations and offices in several communities in the state of California including Compton, California.[BN] The Plaintiff is represented by: Lionel Z. Glancy, Esq. Kevin F. Ruf, Esq. GLANCY PRONGAY & MURRAY LLP 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 Telephone: (310) 201-9150 Facsimile: (310) 201-9160 E-mail: lglancy@glancylaw.com kruf@glancylaw.com SIGMA TRANSPORTATION: Johnson Seeks to Recover Minimum & OT Wages ----------------------------------------------------------------- DUSTON JOHNSON individually and on behalf of all other persons similarly situated who were employed by SIGMA TRANSPORTATION, INC. v. SIGMA TRANSPORTATION, INC. and MANDIP SINGH, Case No. 150131/2019 (N.Y. Sup., New York Cty., January 7, 2019), is brought to recover alleged unlawful deductions, unlawful charges, and unpaid wages and overtime compensation pursuant to the New York Labor Law. Based in West Hempstead, New York, Sigma Transportation, Inc., is a domestic business corporation incorporated under the laws of the state of New York and authorized to do business in New York. Mandip Singh, a resident of New York, is an owner, principal shareholder and/or director of Sigma. Sigma is an ambulette transportation company. Sigma is a non-emergency medical transportation service. Sigma transports patients from different hospitals, doctors and their houses.[BN] The Plaintiff is represented by: Lloyd R. Ambinder, Esq. Jack L. Newhouse, Esq. VIRGINIA & AMBINDER, LLP 40 Broad Street, 7th Floor New York, NY 10004 Telephone: (212) 943-9080 Facsimile: (212) 943-9082 E-mail: lambinder@vandallp.com jnewhouse@vandallp.com SMILEMAKERS INC: S. Wainess' TCPA Suit Remains in Dist. Court ------------------------------------------------------------- The United States District Court for the Eastern District of Michigan, Southern Division, issued a Memorandum and Order denying Defendant's Motion to Transfer or Strike the class allegations in the case captioned P. STEVEN WAINESS, DDS, individually and as the representative of a class, Plaintiff, v. SMILEMAKERS, INC., Defendant. Case No. 18-12177. (E.D. Mich.). This is a case under the Telephone Consumer Protection Act (TCPA) involving junk faxes. Plaintiff P. Steven Wainess, DDS (Wainess) is suing defendant Smilemakers alleging that it received two unsolicited faxes which did not comply with the TCPA. Wainess also seeks class action status. Motion to Transfer Absent the forum selection clause, the Eastern District of Michigan would be a proper venue for bringing this case. Wainess brought this action under the TCPA and thus the Court has subject matter jurisdiction under 28 U.S.C. Section 1331. Here, Smilemakers relies primarily, if not exclusively, on the forum selection clause found in the Terms and Conditions to argue transfer is appropriate. The forum selection clause is entitled to some weight. The Supreme Court has directed that in evaluating a motion for transfer of venue, courts should consider whether the parties agreed to an enforceable forum selection clause. Smilemakers says that under section 2-207, Wainess agreed to the forum selection clause by accepting goods from it. Wainess says that the forum selection clause is an additional and material term which does not become a part of the contract under 2-207. The dispositive issue is therefore whether the forum selection clause added to the back of Smilemaker's invoices materially altered the parties' contract or became a part of the contract. Here, it appears that the Terms and Conditions with the forum selection clause first surfaced in the parties' contractual relationship after Smilemakers was acquired by Oriental Trading Company in 2014 and appeared in three invoices from Wainess' purchases in 2015 and 2016. Consistent with the above authority, the Court similarly concludes that the the forum selection clause contained in fine print on the back of the invoices is a material alteration and therefore is not a part of the contract between the parties. As such, transfer cannot be based on the existence of a forum selection clause. As to the several other transfer factors, the fact that Smilemakers is located in South Carolina does not weigh in favor of transfer. A court should not transfer a case where the transfer would simply exchange the inconvenience of one party for that of the other. While South Carolina may be a more connient forum for Smilemakers, Michigan is a more convenient forum for Wainess. Motion to Strike Smilemakers has not shown that Wainess' class allegations should be stricken based on the waiver provision. Smilemakers has not argued that the complaint contains redundant, immaterial, impertinent, or scandalous allegations. Rather, Smilemakers contends, under the guise of a motion to strike, that Wainess cannot bring a class action against Smilemakers in light of the waiver provision. Putting aside Wainess' argument that the class action waiver, like the forum selection clause, is an additional material terms which is not part of the contract under section 2-207, the issue of whether the class action waiver is valid is far from clear. One district court has held in the context of a claim under the Fair Labor Standards Act that class waivers without an arbitration provision are not valid. Smilemakers cites Am. Express Co. v. Italian Colors Rest., 570 U.S. 228 (2013), to support its argument that the class action waiver is enforceable. The issue in Am. Express was whether a contractual waiver of class arbitration is enforceable under the Federal Arbitration Act when the plaintiff's cost of individually arbitrating a federal statutory claim exceeds the potential recovery. The Supreme Court held that, under the Federal Arbitration Act (FAA), the courts must rigorously enforce arbitration agreements according to their terms, including the rules under which that arbitration will be conducted. The rules under which that arbitration will be conducted in Am. Express precluded class arbitration, and the Supreme Court enforced that rule. Unlike the above authority, there is no arbitration agreement at issue in this case. The additional Terms and Conditions on the back of the three invoices Smilemakers relies on do not call for arbitration of any claims. Rather, the waiver provision purports to require that any claims be filed individually in a court of competent jurisdiction in Spartanburg, South Carolina. Far from requiring arbitration under certain rules, thus implicating the FAA, the additional terms and conditions prohibit arbitration and require adjudication by a court. Neither party has cited a case in which a court considered whether a class action waiver unaccompanied by an arbitration provision is valid in a case claiming a violation of the TCPA. In any event, Smilemakers' argument is more appropriate as a response to a motion for class certification. A full-text copy of the District Court's December 27, 2018 Memorandum and Order is available at https://tinyurl.com/yd4tgam3 from Leagle.com. P. Steven Wainess, DDS, Plaintiff, represented by Ross M. Good -- rgood@andersonwanca.com -- Anderson Wanca & Ryan M. Kelly -- rkelly@andersonwanca.com -- Anderson & Wanca. Smilemakers, Inc., Defendant, represented by Margaret Schuchardt, Jaszczuk P. C. & Martin Wojslaw Jaszczuk, Jaszczuk PC. SOLARIS HEALTHCARE: Swinson Claims Overtime for Hrs. Worked Over 40 ------------------------------------------------------------------- Teresa Swinson, on behalf of herself and others similarly situated, Plaintiff, v. Health Services of Palatka, Inc., Solaris Healthcare Palatka LLC and Duane S. Gallagher, individually, Defendants, Case No. 19-cv-00001 (Fla. Cir., January 2, 2019), seeks unpaid overtime compensation, liquidated damages, attorneys' fees and costs and other relief for violation of the Federal Fair Labor Standards Act. Health Services of Palatka operated 180-bed skilled nursing home and rehabilitation center located in Palatka, Florida before it was purchased by Solaris Healthcare. Swinson was employed by the Defendants as a dietary aide. She claims to have worked in excess of 40 hours per workweek but was not paid the required overtime rates for hours in excess of the 40 hours. [BN] Plaintiff is represented by: Jay P. Lechner, Esq. Jason M. Melton, Esq. WHITTEL & MELTON, LLC 11020 Northcliffe Boulevard Spring Hill, FL 34608 Telephone: (352)683-2016 Facsimile: (352) 600-7533 Email: Pleadings@theFLlawfirm.com lechnerj@theFLlawfirm.com pls@theFLlawfirm.com SOUTH CAROLINA: Suit Settlement Calls for Testing Hep C Testing --------------------------------------------------------------- A proposed partial settlement of a civil rights class action lawsuit has received preliminary approval from a Federal Court here in South Carolina; it will provide Hepatitis C testing to all current and future inmates incarcerated in the South Carolina Department of Corrections (SCDC). According to the terms of a proposed agreement in Russell Geissler et al. v. Bryan P. Stirling et al., almost 20,000 current inmates will be tested along with future inmates of the SCDC. The United States District Court for the District of South Carolina has set a fairness hearing on the settlement for February 12, 2019 at 11:00 AM in the United States District Court for the District of South Carolina in Columbia. That hearing has been scheduled by United States Senior District Court Judge, Margaret Seymour. The settlement does not waive personal injury claims and the litigation will go forward with regard to claims for the treatment of Hepatitis C. The partial settlement was the result of significant fact discovery including document production and depositions. The class is represented by Christopher Bryant, Esq. -- chris@yarboroughapplegate.com-- of Yarborough Applegate LLC located in Charleston, SC and Reuben Guttman, Esq. -- rguttman@gbblegal.com-- of Guttman, Buschner & Brooks PLLC in Washington, D.C., Justin Brooks, Esq. -- jbrooks@gbblegal.com -- Traci Buschner, Esq. -- tbuschner@gbblegal.com -- Caroline Poplin MD/JD, -- cpoplin@gbblegal.com -- and Paul Zwier of Guttman, Esq. -- PZwier@gbblegal.com -- Buschner & Brooks PLLC also worked on the litigation. Counsel representing the class praised opposing counsel for working toward this partial resolution marking an inroad toward addressing a public health crisis. National statistics show that nearly 17 percent of nation's inmate population has Hepatitis C, a bloodborne pathogen which can lead to death. Prior to the litigation, the SCDC had failed to test inmates for the disease, leaving them without the full awareness necessary to prevent its transmission. The litigation will continue as plaintiffs press for the treatment of those who already have the disease. Today, several medications exist to treat and cure the condition. "This is a terrific result, but we still have our work cut out for us to complete the litigation. This is not just a prison health issue; it's a public health issue," said Christopher Bryant, Esq. counsel for the class. "This is a win for all citizens of the State of South Carolina and elsewhere. Treating inmates in prisons before they re-enter society is the type of prevention that will save lives and and save precious healthcare dollars," said class counsel, Reuben Guttman, Esq.. Guttman, Buschner & Brooks PLLC is a nationally recognized boutique complex litigation law firm; in the healthcare area alone it has represented whistleblowers under the False Claims Act in cases which have returned over $5.5 billion to government treasuries. More information about the firm and its members can be found at gbblegal.com. Yarborough Applegate LLC is a plaintiff's law firm primarily focused on catastrophic personal injury, including traumatic brain injuries, dram shop/drunk driving cases, trucking cases, and wrongful death. More information on the firm, representative results, and its members can be found at yarboroughapplegate.com. [GN] SOUTH FLORIDA COURIER: Da Silva Files Labor Class Suit in NY ------------------------------------------------------------ Djalma Lourenco Da Silva, on behalf of himself and all others similarly situated, Plaintiff, v. South Florida Courier Systems, Inc., a Florida Corporation, and Gonzalo Ochoa, individually, Defendants, Case No. 1:19-cv-20227-KMW (S.D. N.Y., January 16, 2019) seeks to recover compensation and other relief under the Fair Labor Standards Act. The Plaintiff was a non-exempt employee hired by the Defendants on an hourly basis, but the Defendants willfully refused to compensate the Plaintiff, and all other similarly situated, for time and one half for each hour worked in excess of 40 hours per work week, as required under Federal law, the complaint asserts. Plaintiff was and is presently a resident of this judicial district. Defendants were the employers of the Plaintiff, and were conducting business in this judicial district and were 'employers' under the FLSA. Gonzalo Ochoa, individually, acted directly in the interests of his employer, the Defendants, SFCS, in relation to the Plaintiff.[BN] The Plaintiff is represented by: Jeffrey P. Gale, Esq. JEFFREY P. GALE, P.A. 9999 N.E. 2nd Avenue, Suite 304 Miami Shores, FL 33138 Phone: (305) 758-4900 Fax: (305) 758-4949 Primary Email: jeffgalelaw@bellsouth.net Secondary Email: kellygale@yahoo.com SSC KERRVILLE: Can't Compel Arbitration in Passmore FLSA Suit ------------------------------------------------------------- In the case, ROSARIO PASSMORE, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED; BRENDA L. CHAFTON, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED; MARIA WEAKS, JO ANN VEGA, KELLY SLAPE, Plaintiffs, v. SSC KERRVILLE HILLTOP VILLAGE OPERATING COMPANY LLC, SSC KERRVILLE EDGEWATER OPERATING COMPANY, LLC, SSC KERRVILLE ALPINE TERRACE OPERATING COMPANY, LLC, Defendants, Case No. SA-18-CV-00782-FB (W.D. Tex.), Magistrate Judge Elizabeth S. Chestney of the U.S. District Court for the Western District of Texas, San Antonio Division, denied the Defendants' Motion to Dismiss and to Compel Arbitration. Plaintiffs Passmore and Brenda L. Chafton, formerly known as Brenda Agbeye, individually and on behalf of all others similarly situated, originally filed the action under the Fair Labor Standards Act of 1938, as amended, on July 28, 2018. In addition to asserting individual employment claims under the FLSA and Texas state law, the Named Plaintiffs also seek to represent a putative class of similarly-situated individuals regarding their claims under the FLSA, including certain opt-in Plaintiffs who have already filed consents to join in the action. The Plaintiffs allege that the Defendants have failed to pay their registered nurses and licensed vocational nurses overtime wages for time worked in excess of 40 hours per week, as required by the FLSA. The Named Plaintiffs seek unpaid overtime compensation on behalf of themselves and all other registered nurses and licensed vocational nurses who worked for the Defendants during the past three years and were not paid at a rate of not less than one and one-half times the regular rate of pay for all hours worked in excess of 40 hours in a workweek. On July 28, 2018, the Defendants filed a motion to compel arbitration, which is the subject of the Order. By their motion, the Defendants argue that the case is subject to binding arbitration based on arbitration agreements signed by the Named Plaintiffs as a condition of their employment with the Defendants. The Plaintiffs moved to conditional certify the class on Oct. 29, 2018. To date, three opt-in Plaintiffs have filed consents to join the action: Maria Weaks, Jo Ann Vega, and Kelly Slape. The Defendants filed a motion to strike or, in the alternative, to stay the Plaintiffs' motion for conditional certification on Nov. 14, 2018. On Nov. 15, 2018, the Court granted in part and denied in part that motion, staying briefing on the Plaintiffs' motion for conditional certification, as well as all discovery, until the Court has ruled on the Defendants' motion to compel arbitration. Magistrate Judge Chestney finds that while the Defendants have met their burden of demonstrating that the parties entered into a valid arbitration agreement, the arbitration agreement's plain and unambiguous language excludes the class and the collective actions from mandatory arbitration. Thus, the motion compel arbitration of the putative collective action wil be denied. In accordance with the foregoing, she denied the Defendants' Motion to Dismiss and to Compel Arbitration . The Defendants must file a response to the Plaintiffs' Motion for Conditional Certification within 21 days of the date of the Order. The parties confer and submit proposed scheduling order deadlines within 30 days of the date of the Order. A full-text copy of the Court's Jan 4, 2019 Order is available at https://is.gd/3kEjSG from Leagle.com. Rosario Passmore, Individually and On behalf of All Others Similarly Situated, Brenda L. Chafton, Individually and On Behalf of All Others Similarly Situated formerly known as Brenda Agbeye, Maria Weaks, Jo Ann Vega & Kelly Slape, Plaintiffs, represented by Daniel Anthony Verrett -- daniel@morelandlaw.com -- Moreland Verrett, P.C. & Edmond S. Moreland, Jr. -- edmond@morelandlaw.com -- Moreland Verrett, P.C. SSC Kerrville Hilltop Village Operating Company LLC, SSC Kerrville Edgewater Operating Company, LLC & SSC Kerrville Alpine Terrace Operating Company, LLC, Defendants, represented by Jeffrey C. Londa -- jeffrey.londa@ogletreedeakins.com -- Ogletree Deakins Nash Smoak & Stewart, P.C., Lara Cardin de Leon -- lara.deleon@ogletreedeakins.com -- Ogletree, Deakins, Nash, Smoak & Stewart & Mark A. McNitzky -- mark.mcnitzky@ogletreedeakins.com -- Ogletree, Deakins, Nash, Smoak & Stewart, PC. STARBUCKS CORP: Court Dismisses Amster Suit Without Prejudice ------------------------------------------------------------- Judge Dolly M. Gee of the U.S. District Court for the Central District of California (i) dismissed without prejudice the case, SHAYNA AMSTER, an individual, on behalf of herself and on behalf of all persons similarly situated, Plaintiff, v. STARBUCKS CORPORATION; and Does 1 through 50, Inclusive, Defendant, Case No. CV 18-8327-DMG (KSx) (C.D. Cal.). Pursuant to Rule 41(a)(1)(A)(ii) of the Federal Rules of Civil Procedure, the Plaintiff's individually-based claims against the Defendant are dismissed without prejudice. The Plaintiff has elected, at this time, not to proceed with her individual claims under the California Labor Code or the class claims so that her non-arbitrable Private Attorney General Act claims may be pursued first. The Plaintiff reserves her right to file her individual claims at a later time. The parties, therefore, have stipulated that the action will be dismissed in its entirety, without prejudice, as to the Plaintiff's individual claims and as to the claims alleged on behalf of other persons similarly situated as a class action. Judge Gee dismissed without prejudice the claims asserted by the putative class against the Defendant. The Plaintiff's claims against the Defendant based on PAGA remain and are remanded to the Los Angeles County Superior Court. The parties will bear her/its own costs, including attorneys' fees. The Judge denied as moot the Plaintiffs' Motion to Remand Case to State Court. A full-text copy of the Court's Jan 8, 2019 Order is available at https://is.gd/VzLFwY from Leagle.com. Shayna Amster, an indiviual, on behalf of herself and on behalf of all persons similary situated, Plaintiff, represented by Aparajit Bhowmik -- aj@bamlawlj.com -- Blumenthal Nordrehaug Bhowmik De Blouw LLP, Jonathan M. Lebe -- jlebe@bdgfirm.com -- Lebe Law APLC, Kyle R. Nordrehaug -- kyle@bamlawca.com -- Blumenthal Nordrehaug Bhowmik De Blouw LLP, Norman B. Blumenthal -- norm@bamlawca.com -- Blumenthal Nordrehaug Bhowmik De Blouw LLP, Janine R. Menhennet -- janine@bamlawca.com -- Blumenthal Nordrehaug Bhowmik De Blouw LLP, Ruchira Piya Mukherjee -- piya@bamlawlj.com -- Blumenthal Nordrehaug Bhowmik De Blouw LLP & Victoria Bree Rivapalacio -- victoria@bamlawca.com -- Blumenthal Nordrehaug Bhowmik De Blouw LLP. Starbucks Corporation, Defendant, represented by Keith A. Jacoby -- kjacoby@littler.com -- Littler Mendelson PC, Rachael Sarah Lavi -- rlavi@littler.com -- Littler Mendelson PC, Tina Sundar -- tsundar@littler.com -- Littler Mendelson PC & Judy M. Iriye -- jiriye@littler.com -- Littler Mendelson PC. STEPHEN EINSTEIN: Court Denies Bid to Dismiss Somerset FDCPA Suit ----------------------------------------------------------------- In the case, JULIE SOMERSET, individually and on behalf of all others similarly situated, Plaintiff, v. STEPHEN EINSTEIN & ASSOCIATES, P.C. and STEPHEN EINSTEIN, Defendants, Case No. 2:17-cv-07539 (ADS)(ARL)(E.D. N.Y.), Judge Arthur D. Spatt of the U.S. District Court for the Eastern District of New York (i) denied the Defendants' motion to dismiss, and (ii) granted the Plaintiff's motion to amend the Complaint. Plaintiff Somerset initiated the putative class action against the Defendants for damages stemming from alleged violations of the Fair Debt Collection Practices Act ("FDCPA"). The Plaintiff is a citizen of the State of New York from whom the Defendants attempted to collect a consumer debt allegedly owed by the Plaintiff. On Jan. 10, 2017, the Defendants drafted and mailed an "Income Execution" directed to the Plaintiff's employer and forwarded to the Plaintiff. The Plaintiff alleges that she received said Income Execution, and that the Income Execution was the first and only communication received by the Plaintiff from the Defendants. The Amended Complaint alleges that the Income Execution lacks the language required by FDCPA Sections 1692e(11) and 15 USC 1692g(a). In addition, the Amended Complaint claims that the Income Execution falsely indicated that there was a valid judgement against the Plaintiff from a company called Rushmore Recoveries X, LLC. The Plaintiff also claims that no attorney meaningfully reviewed the Income Execution prior to serving it, and that the Defendants knew or should have known that the service obtained by SamServe was invalid. On May 24, 2016, the U.S. District Court for the Southern District of New York approved a class action settlement vacating more than 200,000 default judgments obtained by the Mel Harris Firm and SamServe. The Plaintiff alleges that the Defendants were aware of the Sykes case, but chose to actively pursue a default judgment emanating from the Mel Harris/SamServ operation. On Dec. 27, 2017, the Plaintiff commenced the action against the Defendants alleging violations of FDCPA Sections 1692e, 1692e(3), 1692e(10), 1692e(11), 1692f(1), 1692f(6)(A), 1692g(a). She seeks to bring the action on behalf of herself and a class consisting of all consumers residing in the State of New York who, according to the Defendants' records received an income execution materially identical or substantially similar to the one she received. On March 26, 2018, the Defendants moved to dismiss the Complaint for failure to state a claim upon which relief may be granted. On April 19, 2018, the Plaintiff filed a motion to vacate the Sept. 16, 2005 default judgment against her in the New York State District Court of the County of Suffolk. ECF 21, Ex. B. On April 20, 2018, the Plaintiff opposed the motion to dismiss and filed a motion seeking leave to amend the Complaint. The proposed Amended Complaint withdrew the Plaintiff's claims under GBL Section 349. On May 4, 2018, the Defendants filed a reply in support of their motion to dismiss. They limited their opposition to the Plaintiff's motion to amend to the argument that any such amendment would be futile. On May 30, 2018, the Plaintiff submitted a letter motion informing the Court that the New York State District Court of the County of Suffolk vacated the default judgment against her. Judge Spatt denied the Defendants' motion to dismiss. Among other things, he finds that (i) the Income Execution was the initial communication with the Plaintiff, and it need not decide whether the Income Execution would comply with the FDCPA as a subsequent communication; (ii) the fact that the debt collector does not control the form of the document seems less important, considering the statute's protections will only apply due to the debt initial failure to effect service; and (iii) the Defendants' arguments fall short in the context of the Section 1692e(3) claims. The Defendants also argue that the Plaintiff cannot assert a violation of Section 1692f based on the same conduct underlying Section 1692e claims. The Judge explains that the Second Circuit has expressly rejected the argument that sections 1692e and 1692f are mutually exclusive and that the same conduct by a debt collector cannot violate both sections at once. The cases drawn by the Defendants all predate this on point authority from the Second Circuit. Therefore, he denied the motion to dismiss based on alleged duplicative claims. The Judge granted the Plaintiff's motion to amend the Complaint. He directed the Plaintiff to file the Amended Complaint no later than 10 days from the issuance of the order. A full-text copy of the Court's Jan 4, 2019 Memorandum Decision and Order is available at https://is.gd/R2O6OQ from Leagle.com. Julie Somerset, individually and on behalf of all others similarly situated, Plaintiff, represented by Brian L. Bromberg, Bromberg Law Office, P.C. & Joseph Mauro -- JoeMauroesq@hotmail.com -- The Law Office of Joseph Mauro, LLC. Stephen Einstein & Associates, P.C. & Stephen Einstein, Defendants, represented by Joseph L. Francoeur -- joseph.francoeur@wilsonelser.com -- Wilson Elser, Anthony Scott Poulin, Stephen Einstein & Associates, Hilary Felice Korman -- hkorman@blankrome.com -- Blank Rome LLP & Scott Evan Wortman -- swortman@blankrome.com -- Blank Rome LLP. STITCH FIX: Faces Fischler Suit Over Blind-Inaccessible Web site ---------------------------------------------------------------- BRIAN FISCHLER, Individually and on behalf of all other persons similarly situated v. STITCH FIX, INC., Case No. 1:19-cv-00119 (E.D.N.Y., January 7, 2019), arises from the Defendant's failure to design, construct, maintain, and operate its Web site -- http://www.StitchFix.com/-- to be fully accessible to and independently usable by the Plaintiff and other blind or visually-impaired people. Stitch Fix is a foreign business corporation that is organized under Delaware law, and authorized to do business in the state of New York. Stitch Fix is an online subscription service that offers personalized shopping for men, women and children. On the Web site, one can create an account and answer questions about style preferences. A stylist will then select clothes to be delivered by mail to the recipient. The recipient can choose to purchase the clothes or return them at no additional cost.[BN] The Plaintiff is represented by: Douglas B. Lipsky, Esq. Christopher H. Lowe, Esq. LIPSKY LOWE LLP 630 Third Avenue, Fifth Floor New York, NY 10017-6705 Telephone: (212) 392-4772 E-mail: doug@lipskylowe.com chris@lipskylowe.com SWEPI LP: 6th Cir. Compels Arbitration in Ohio Landowners' Suit --------------------------------------------------------------- Gail Jankowski, Esq., at Carlton Fields, in an article for The National Law Review, reported that the Plaintiff entered into a lease agreement with Defendants (Shell Oil entities) governing extraction of oil and gas from his five-acre property located in Guernsey County, Ohio. The agreement provided a signing bonus to Plaintiff of $5,000 per acre, contingent upon Shell's timely verification that he possessed good title to the property. The lease also contained a broad arbitration clause providing that any dispute under the lease was to be resolved by binding arbitration. Plaintiff brought suit, individually and on behalf of other landowners having similar contracts with Shell, for breach of contract after Shell allegedly failed to pay the signing bonus. The District Court for the Southern District of Ohio subsequently denied Shell's motion to compel arbitration, and Shell appealed. The Sixth Circuit reversed and remanded, compelling arbitration and a directing the district court to decide whether the lease allowed for class-wide arbitration. The panel found that the district court failed to address the threshold issue of who decides arbitrability and further reasoned that Plaintiff did not attack the enforceability of the "specific arbitration clause" but rather "argued that much of the contract, which happens to include the arbitration clause, is unenforceable." In so finding, the panel determined that the arbitration clause was triggered at signing, leading to the applicability of the severability doctrine and the determination that an arbitrator must consider the issue first. As to the class-wide arbitration question, the Panel reasoned that because the parties did not identify a provision in the contract that clearly and unmistakably gave the arbitrator the power to decide the matter, and in light of "the importance of this issue to the case, given that the class could include hundreds of Ohio landowners," that question would be for the district court to decide upon remand. In a dissenting opinion, Judge Moore opined that the district court was the proper body to decide whether the dispute should be arbitrated in light of the lease agreement's two distinct triggering events -- the signing of the agreement and the payment of the bonus. As such, Judge Moore opined that only after payment of the bonus would the arbitration clause apply. Rogers v. Swepi LP, No. 18-3229 (6th Cir. Dec. 10, 2018). [GN] TASKRABBIT INC: Diaz Sues Over Non-Blind Friendly Website --------------------------------------------------------- Edwin Diaz, on behalf of himself and all others similarly situated, Plaintiffs, v. Taskrabbit, Inc., Defendant, Case No. 19-cv-00071, (S.D. N.Y., January 3, 2019), seeks preliminary and permanent injunction, compensatory, statutory and punitive damages and fines, prejudgment and post-judgment interest, costs and expenses of this action together with reasonable attorneys' and expert fees and such other and further relief under the Americans with Disabilities Act, New York State Human Rights Law and New York City Human Rights Law. Taskrabbit is an online marketplace connecting customers with local service providers through www.taskrabbit.com. Plaintiff is legally blind and claims that Defendant's website cannot be accessed by the visually-impaired. [BN] Plaintiff is represented by: Jeffrey M. Gottlieb, Esq. Dana L. Gottlieb, Esq. GOTTLIEB & ASSOCIATES 150 East 18th Street, Suite PHR New York, NY 10003-2461 Telephone: (212) 228-9795 Facsimile: (212) 982-6284 Email: nyjg@aol.com danalgottlieb@aol.com - and - Joseph H. Mizrahi, Esq. COHEN & MIZRAHI LLP 300 Cadman Plaza West, 12th Fl. Brooklyn, NY 11201 Tel: (929) 575-4175 Fax: (929) 575-4195 Email: Joseph@cml.legal TD AMERITRADE: Judge Denies Class Action Certification ------------------------------------------------------ Alex Padalka, writing for Financial Advisor IQ, reports that TD Ameritrade scored a win in the courts, with a federal judge denying a motion by clients of its subsidiary TD Ameritrade Futures & Forex for class certification of their lawsuit. A group of investors had sued the firm alleging that their investments were unreasonably liquidated, as per an unwritten policy that TDAFF applied to all of their accounts, according to an order from U.S. District Judge Cecilia Altonaga of the U.S. District Court for the Southern District of Florida. The investors asserted that their class is made up of 231 members whose investments TDAFF liquidated in after-hours trading starting in February, according to the court document. The company denied the existence of any such policy, according to the order. Furthermore, TDAFF pointed out that there were 888 different and unique options owned by the putative class members, that their expectations were varied, that the market conditions during which the investments were liquidated also varied greatly, and that the decisions for liquidating the positions were made individually by 16 TDAFF associates, court documents show. Altonaga ruled that within the case, "individual issues predominate over common issues" -- particularly when it came to how plaintiffs were calculating damages, according to her order. Furthermore, the judge said, "class action treatment is not a superior method for adjudication of this controversy," court documents show. [GN] TEMPLE UNIVERSITY: Reaches $5.4MM Settlement in Students' Suit -------------------------------------------------------------- Will Bleier, writing for Temple News, reports that Temple University settled a class action lawsuit by Fox School of Business students in excess of $4 million on Dec. 21, after the school admitted it had misreported rankings data to U.S. News & World Report. Online MBA students involved with the class action lawsuit will receive $4 million and claims from students in the Executive MBA, Global MBA, Part-time MBA, and the MS in Human Resource Management, MS in Digital Innovation in Marketing and Online Bachelor of Business Administration programs will receive more than $1.4 million. "It's an unfortunate situation to have arisen with the rankings, but this lets everybody put this behind Temple, which is in the best interest of everybody," said Jason Brown, Esq. an attorney at JTB Law Group in New Jersey who is representing the students. "Because the longer this endures as a piece of litigation I think the worse off it is for everybody." The money will be paid from available insurance coverages and reserves, Kevin Feeley, a Temple spokesman said. Feeley could not specify if tuition dollars would be included in this sum. The settlement does not include any admission of liability, the university said in a release. A $5,000 ethics scholarship will be established for a student interested in studying ethics in business and is enrolled in one of the programs involved in the suit, per the terms of the settlement. The Fox School of Business remains under investigation by the U.S. Department of Education and the state Attorney General's office. The investigations are to determine if Temple intentionally misrepresented itself and misled students. An independent report paid for by the university found that officials in the Fox School of Business had knowingly submitted and falsified data to the U.S. News & World Report for its Online MBA and other programs. The Online MBA program had been ranked No. 1 in the country for several years. The falsified data was part of a broader environment in the business school, focused on achieving high rankings, the report determined. Since then, its longtime dean Moshe Porat was fired from his post and Provost JoAnne Epps added multiple safeguards to ensure data can not be falsified to ranking agencies again. "As I have said in the past, I remain firm in my belief that our Online MBA program, and the Fox School as a whole, is one of the best in the nation," University President Richard Englert said in an email to students on Dec. 20. "It remains an excellent choice for students who want an exceptional education in a vibrant urban environment." The settlement was sent to the U.S. District Court for the Eastern District of Pennsylvania for its review. [GN] TENARIS SA: Faces Securities Class Action Lawsuit ------------------------------------------------- The Fabricator reports that New York-based Scott+Scott Attorneys at Law LLP is notifying investors that a class action lawsuit has been filed against steel pipe products manufacturer and supplier Tenaris S.A. and certain of its officers and directors, related to alleged violations of federal securities laws. The lawsuit alleges that defendants made false or misleading statements or failed to disclose that Tenaris' CEO and Chairman Paolo Rocca knew that one of his company's executives paid cash to government officials from 2009 to 2012 to expedite compensation payments for the sale of Sidor; that this conduct would lead to Rocca being charged in a graft scheme, and subject Tenaris, its affiliates, and executives to heightened governmental scrutiny; and that, as a result, Tenaris' public statements were materially false or misleading at all relevant times [GN] TESARO INC: Scarantino Balks at Merger Deal with GlaxoSmithKline ---------------------------------------------------------------- RICHARD SCARANTINO, Individually and On Behalf of All Others Similarly Situated, the Plaintiff, vs. TESARO, INC., DAVID MOTT, LAWRENCE ALLEVA, JAMES ARMITAGE, EARL COLLIER, JR., MARY LYNNE HEDLEY, LONNIE MOULDER, GARRY NICHOLSON, KAVITA PATEL, BETH SEIDENBERG, PASCALE WITZ, PVKG INTERMEDIATE HOLDINGS INC., and PVKG MERGER SUB, INC., the Defendants, Case No. 1:19-cv-00023-UNA (D. Del., Jan. 4, 2019), alleges that the Defendants violated Sections 14(e), 14(d), and 20(a) of the Securities Exchange Act of 1934 in connection with a solicitation statement. The action stems from a proposed transaction announced on December 3, 2018, pursuant to which Tesaro, Inc. will be acquired by GlaxoSmithKline plc and Adriatic Acquisition Corporation. On December 3, 2018, Tesaro's Board of Directors caused the Company to enter into an agreement and plan of merger with GlaxoSmithKline. Pursuant to the terms of the merger agreement, merger sub commenced a tender offer to acquire all of Tesaro's outstanding common stock for $75.00 per share in cash. The Tender Offer is provided to expire on January 14, 2019. On December 14, 2018, the Defendants filed a solicitation/recommendation statement with the United States Securities and Exchange Commission in connection with the Proposed Transaction. The solicitation statement omits material information with respect to the proposed transaction, which renders the solicitation statement false and misleading, the lawsuit says. Tesaro is a public pharmaceutical company based in Waltham, Massachusetts. They focus on drug development for cancer. In December 2018, GlaxoSmithKline announced it would acquire the company for $5.1 billion.[BN] Attorneys for Plaintiff: Brian D. Long, Esq. Gina M. Serra, Esq. RIGRODSKY & LONG, P.A. 300 Delaware Avenue, Suite 1220 Wilmington, DE 19801 Telephone: (302) 295-5310 Facsimile: (302) 654-7530 E-mail: bdl@rl-legal.com gms@rl-legal.com - and - 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 TOYOTA AUSTRALIA: Class Action Over DPF Issues Being Considered --------------------------------------------------------------- Scott Collie, writing for CarAdvice, reports that Toyota Australia is facing a class action lawsuit over issues with the Diesel Particulate Filters (DPF) in 2015-18 HiLux, Prado and Fortuner vehicles powered by the 2.8-litre turbo-diesel engine. According to the legal firm considering the claim, its clients have experienced "increased fuel consumption and a loss of power of the vehicle" because "hard deposits accumulating on the DPF oxidisation catalyst" stop it reaching the necessary temperature. The claim says the DPF may be defective because the HiLux, Fortuner and Prado don't burn particulate matter in normal urban conditions, where many owners spend time, creating particulate matter buildup, DPF blockage, foul-smelling emissions from the exhaust, increased fuel use, and greater wear and tear on the engine. It acknowledges Toyota contacted owners offering to clean or replace the DPF in affected vehicles, and retro-fit a manual regeneration switch, but says some owners have been dealing with the issues for a number of years, causing "unnecessary inconvenience and expense". Earlier this year, the company made a manual regeneration switch standard fit on the vehicles included in this recall. At the moment, the law firm is investigating possible contraventions of Australian Consumer Law (ACL) regarding "misleading and deceptive conduct" and "omissions equating to misleading and deceptive conduct". A potential claim would encompass any repairs that weren't covered under warranty, a loss of income for tradies with vehicles that were taken off the road by the issue, compensation for any measurable increase in fuel consumption or loss of power, and coverage for any excessive depreciation because of the problem. In a statement, Toyota Australia said it "launched the latest in a series of initiatives, a customer service campaign, to resolve the potential DPF issue" in October. "All customers with potentially affected vehicles have been, or are in the process of being, contacted by letter and are requested to make contact with their closest/preferred Toyota dealer," the company said. "Toyota dealers will reprogram the engine control module, ensure the DPF has been regenerated and conduct a smoke test. If the smoke test is negative, the DPF will be replaced. All inspection work and replacement, if required, will be completed free of charge to the customer." [GN] UNION PACIFIC: Ct. Won't Certify Classes in Landing Agreement Suit ------------------------------------------------------------------ In the case, LIL' MAN IN THE BOAT, INC., Plaintiff, v. CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants, Case No. 17-cv-00904-JST (N.D. Cal.), Judge Jon S. Tigar of the U.S. District Court for the Northern District of California denied Lil' Man's motion to certify two classes of commercial vessel operators. In the putative class action, Plaintiff Lil' Man complains against the Defendants about a recently-amended landing agreement to use South Beach Harbor ("2016 Landing Agreement") the Defendants require commercial vessels to sign. Lil' Man complains that the agreement imposes excessive fees and charges and places 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 the fees charged by the 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 Defendants to pay damages and restitution. In February 2017, Lil' Man initiated the litigation by filing a putative class action complaint in the Northern District of California. Its first complaint stated four claims under 42 U.S.C. Section 1983: violation of the Tonnage Clause of the United States Constitution by assessing a "Duty of Tonnage"; violation of Lil' Man's First Amendment right to petition by virtue of the agreement's exculpation provision; and violation of the Dormant Commerce Clause and Rivers and Harbors Act, respectively, based on the same provisions. Lil' Man also asserted claims under the Bane Act, Cal. Civ. Code Section 52.1; for unjust enrichment; and seeking declaratory and injunctive relief. The Defendants moved to dismiss Lil' Man's complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. The Court dismissed Lil' Man's Bane Act claim but allowed the other causes of action to proceed. Lil' Man then filed an amended complaint. The Defendants then moved for judgment on the pleadings solely as to Lil' Man's claims for violation of California Business and Professions Code Section 23300 and Lil' Man's Section 1983 claim based on a denial of its right to petition. The Court granted that motion. The following month, Lil' Man filed its motion for class certification on its remaining claims. Now before the Court is Lil' Man's motion to certify two classes of commercial vessel operators: those who were asked to sign the 2016 Landing Agreement, and those who paid fees pursuant to that agreement. Because neither of Lil' Man's proposed classes is sufficiently numerous to satisfy Rule 23(a)(1), Judge Tigar denied its motion for class certification. He finds that (i) the number of potential class members by itself does not establish impracticability of joinder; (ii) neither the class size nor the numerosity factors favor certifying Lil' Man's Damages Class; and (iii) Lil' Man only claims 18 members for the class, and provides no argument beyond that supporting its Damages Class as to why the class would satisfy the numerosity requirement. A full-text copy of the Court's Jan 8, 2019 Order is available at https://is.gd/2guFxF from Leagle.com. Lil' Man in the Boat, Inc., a California Corporation, Plaintiff, represented by David Raymond Ongaro -- dongaro@ongaropc.com -- Ongaro PC. City and County of San Francisco, San Francisco Port Commission, operating under the title Port of San Francisco, Elaine Forbes, Interim Executive Director, Peter Daley, Deputy Director, Maritime the San Francisco Port, Jeff Bauer, Deputy Director of Real Estate, the San Francisco Port & Joe Monroe, Harbormaster, South Beach Harbor, Pier 40, Defendants, represented by Tara M. Steeley, San Francisco City Attorney's Office. UNION PACIFIC: Settlement in Fowler Suit Has Final Approval ----------------------------------------------------------- In the case, Richard Fowler; Rick Hollis, Plaintiffs, v. Union Pacific Railroad Co., Defendant, Case No. EDCV 17-02451 JGB (SPx) (C.D. Cal.), Judge Jesus G. Bernal of the U.S. District Court for the Central District of California, Eastern Division, granted the Plaintiff's Motion for Final Approval of Class Action Settlement. He awarded (i) the Class Counsel attorneys' fees in the amount of $28,800; (ii) the Class Counsel costs in the amount of $5,000; and (iii) $3,000 to Plaintiff Hollis. He also ordered payment of (i) $2,632.50 to the California Labor and Workforce Development Agency; and $13,000 to the claims administrato. The case is dismissed with prejudice A full-text copy of the Court's Jan 8, 2019 Judgment is available at https://is.gd/Zms5So from Leagle.com. Richard Fowler, individually and on behalf of all others similarly situated, Plaintiff, represented by Craig J. Ackermann -- cja@ackermanntilajef.com -- Ackermann and Tilajef PC, David S. Winston -- david@employmentlitigators.com -- Winston Law Group, P.C., Jonathan Melmed -- jm@melmedlaw.com -- Melmed Law Group PC & Sam Vahedi -- cja@ackermanntilajef.com -- Ackermann and Tilajef PC. Rick Hollis, Plaintiff, represented by Craig J. Ackermann, Ackermann and Tilajef PC, David S. Winston, Winston Law Group, P.C., Jonathan Melmed, Melmed Law Group PC, Sam Vahedi, Ackermann and Tilajef PC & Avi Melech Kreitenberg , Ackermann and Tilajef PC Union Pacific Railroad Company, a Delaware corporation, Defendant, represented by Amanda C. Sommerfeld -- asommerfeld@jonesday.com -- Jones Day, Donald J. Munro -- dmunro@jonesday.com -- Jones Day, pro hac vice & Koree Blyleven -- kblyleven@jonesday.com -- Jones Day. UNITED STATES: Prison Employees Hit Gov't Shutdown -------------------------------------------------- Justin Tarovisky and Grayson Sharp, on their own behalves and on behalf of all others similarly situated, Plaintiff, v. The United States of America, Defendant, Case No. 18-cv-02007 filed in the U.S. Court of Federal Claims on January 2, 2019, seeks all rights, privileges, protections and compensation under the Fair Labor Standards Act. Tarovisky and Sharp worked for the Bureau of Prisons and were affected by the government shutdown on December 22, 2018. They were not compensated on their scheduled payday and therefore seek monetary and liquidated damages. [BN] Plaintiff is represented by: Heidi R. Burakiewicz, Esq. Zachary R. Henige, Esq. Robert DePriest, Esq. KALIJARVI, CHUZI, NEWMAN & FITCH, P.C. 818 Connecticut Avenue NW, Suite 1000 Washington, DC 20006 Tel: (202) 331-9260 Fax: (877) 219-7127 Email: hburakiewicz@kcnlaw.com zhenige@kcnlaw.com rdepriest@kcnlaw.com - and - David Borer, Esq. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES 80 F Street, N.W. Washington, DC 20001 Tel: (202) 639-6424 Fax: (202) 639-6441 Email: borerd@afge.org - and - Judith Galat, Esq. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES 80 F Street, N.W. Washington, DC 20001 Tel: (202) 639-6424 Fax: (202) 639-6441 Email:galatj@afge.org USAA FEDERAL: Faces Eiess Class Suit Over Illegal NSF Fees ---------------------------------------------------------- ELIZABETH EIESS, on behalf of herself and all others similarly situated v. USAA FEDERAL SAVINGS BANK, Case No. 3:19-cv-00108-LB (N.D. Cal., January 8, 2019), arises from the assessment of multiple Non-Sufficient Funds Fees ("NSF Fees") on the same transaction, which is barred by the account contract and is deceptive. In violation of its contract and reasonable consumer understanding, USAA often charges more than one $29 NSF Fee on the same transaction, even though the contract states -- and reasonable consumers understand -- that the same transaction can only incur a single NSF Fee, Ms. Eiess alleges. She contends that these double and triple penalties crush accountholders already struggling to make ends meet. USAA is a federal savings association with its headquarters and principal place of business located in San Antonio, TX. Among other things, USAA is engaged in the business of providing retail banking services throughout California to consumers, including Plaintiff and members of the putative classes, which includes the issuance of debit cards for use by its customers in conjunction with their checking accounts.[BN] The Plaintiff is represented by: Todd D. Carpenter, Esq. CARLSON LYNCH SWEET KILPELA & CARPENTER, LLP 1350 Columbia St., Suite 603 San Diego, CA 92101 Telephone: (619) 762-1900 E-mail: tcarpenter@carlsonlynch.com - and - Jeffrey D. Kaliel, Esq. Sophia G. Gold, Esq. KALIEL PLLC 1875 Connecticut Ave., NW, 10th Floor Washington, DC 20009 Telephone: (202) 350-4783 E-mail: jkaliel@kalielpllc.com sgold@kalielpllc.com - and - Hassan A. Zavareei, Esq. Andrea Gold, Esq. TYCKO & ZAVAREEI LLP 1828 L Street, NW, Suite 1000 Washington, DC 20036 Telephone: (202) 973-0900 Facsimile: (202) 973-0950 E-mail: hzavareei@tzlegal.com agold@tzlegal.com - and - Annick M. Persinger, Esq. Tanya S. Koshy, Esq. TYCKO & ZAVAREEI LLP The Tower Building 1970 Broadway, Suite 1070 Oakland, CA 94612 Telephone: (510) 254-6808 Facsimile: (510) 210-0571 E-mail: apersinger@tzlegal.com tkoshy@tzlegal.com - and - Jeff Ostrow, Esq. Jonathan M. Streisfeld, Esq. KOPELOWITZ OSTROW FERGUSON WEISELBERG GILBERT One W. Las Olas Blvd., Suite 500 Fort Lauderdale, FL 33301 Telephone: (954) 525-4100 Facsimile: (954) 525-4300 E-mail: ostrow@kolawyers.com streisfeld@kolawyers.com WELLS FARGO: Court Approves $480MM Settlement --------------------------------------------- Ben Lane, writing for HousingWire, reports that Wells Fargo will pay $480 million to a group of the bank's shareholders as part of a class action settlement for allegedly lying about the sales practices that led to the bank's massive fake accounts scandal. The settlement stems from actions taken in 2016 by the Consumer Financial Protection Bureau, the Office of the Comptroller of the Currency, and the city and county of Los Angeles to fine the bank $150 million for more than 5,000 of the bank's former employees opening as many as 2 million fake accounts in order to get sales bonuses. The action also led to class action lawsuit being brought on behalf of the bank's customers who had a fake account opened in their name. That lawsuit led to a $142 million fake accounts class action settlement for those customers. But they weren't the only ones who sued. A group of the bank's shareholders also sued the bank, claiming that the bank and its executives made "misrepresentations and omissions" about the bank's "cross-selling" business model, where bank employees were rewarded for getting customers to open up multiple accounts. Those rewards and bonuses led to employees opening up fake accounts in customers' names in order to get bonuses. The shareholders claimed that bank committed securities fraud by not being wholly honest in its statements about its sales practices. And earlier this year, the bank agreed to a settlement that will see the bank pay $480 million to those shareholders. And now, a federal judge has given final approval to the settlement, which means that those shareholders will soon see their share of the $480 million payout. According to the bank, the settlement class covers all persons and entities that purchased Wells Fargo common stock from Feb. 26, 2014 through Sept. 20, 2016. "Wells Fargo is pleased the case has received final approval by the court," the bank said in a statement. "The company remains focused on rebuilding trust and transforming into the most customer-focused, efficient, and innovative Wells Fargo ever, for all of its stakeholders." Wells Fargo said that fully accrued the settlement amount earlier this year, and paid that amount into a settlement escrow. Wells Fargo also said that it maintains its denial of the claims and allegations made by the shareholders, but settled the lawsuit in order to "avoid the cost and disruption of further litigation." Eligible shareholders have until Jan. 23, 2019 to submit their claim to take part in the settlement.[GN] WORLDWIDE TILE: Ayala Sues Over Unpaid Overtime Wages ----------------------------------------------------- Carlos Nunez Ayala and Jose Ricardo Mejia on behalf of themselves and all similarly situated persons, Plaintiffs, v. Worldwide Tile Corp. and Jose Goncalves, Defendants, Case No. 2:19-cv-00293 (E.D. N.Y., January 15, 2019) is an action brought on behalf of Plaintiffs and a putative class of individuals who provided labor for Defendants and/or other related entities to recover unpaid overtime wages pursuant to the Fair Labor Standards Act ("FLSA"), and the New York Labor Law and the supporting New York State Department of Labor Regulations, ("NYLL"). Plaintiff Ayala was employed by Defendants as a construction laborer from in or about February 2014 to in or about October 2017. Plaintiff Mejia was employed by Defendants as a construction laborer from in or about April 2017 to in or about January 2018. Plaintiffs regularly worked in excess of 40 hours per week but were not paid premium overtime compensation for the hours they worked after 40 hours per week. Defendants paid the Plaintiffs at their regular rate of pay for all hours worked, including those hours worked after 40 hours per week. The Defendants also failed to provide each Plaintiff with an accurate statement of his wages each pay period setting forth the regular hourly rate of pay, overtime rate of pay, and number of hours worked, says the complaint. Worldwide Tile Corp., is a domestic business corporation with offices at 511 Latham Road, Mineola, New York 11501. Jose Goncalves, is and/or was an officer or owner of Worldwide Tile Corp., had authority to make payroll and personnel decisions for Worldwide Tile Corp., and was active in the day to day management of Worldwide Tile Corp., including the payment of wages to the Plaintiffs and determining what wages were paid to Plaintiffs, and is liable to Plaintiffs as an "employer" within the meaning of federal and state law for the unpaid wages they seek to recover.[BN] The Plaintiffs are represented by: Peter A. Romero, Esq. LAW OFFICE OF PETER A. ROMERO PLLC 825 Veterans Highway, Suite B Hauppauge, NY 11788 Phone: (631) 257-5588 Email: Promero@RomeroLawNY.com WYNDHAM HOTEL: Website Violates Disabilities Act, Breeze Claims --------------------------------------------------------------- BYRON BREEZE, JR., on behalf of himself and all others similarly situated, the Plaintiff, vs. WYNDHAM HOTEL GROUP, LLC, a foreign limited liability company, the Defendant, Case No. 1:19-cv-00176 (D.N.J., Jan. 7, 2019), seeks injunctive relief, and payment of attorneys' fees and litigation costs, including but not limited to disbursements, court expenses and other fees, pursuant to the Americans with Disabilities Act (ADA) and the New Jersey Law Against Discrimination (NJLAD). According to the complaint, the Defendant owns and/or operates a hotel known as the Days Inn by Wyndham Atlantic City Oceanfront-Boardwalk located at 3000 Boardwalk At Morris Ave, Atlantic City, New Jersey 08401. The Defendant owns and/or controls and Hotel's website, located at www.wyndhamhotels.com/days-inn/atlantic-city-new-jersey/days-inn-atlantic-city-oceanfront-boardwalk/overview The Hotel takes reservations through the Website and provides information regarding available guestrooms and Hotel amenities. As of March 15, 2012, the Defendant was required to ensure that all of its reservation systems, including its online reservation systems (a) identify and describe disabled accessible features of the Hotel in detail; (b) identify and describe accessible features of ADA compliant guest rooms in detail; (c) permit disabled individuals to independently assess whether the Hotel and its available guestrooms meet their individual accessibility needs (by describing accessible and inaccessible features); and (d) allow reservations to be taken for accessible guestrooms in the same manner as for non-accessible guestrooms. The Defendant has not complied, the lawsuit says. Wyndham Hotel Group, LLC owns, operates, and franchises a chain of hotels in the United States and internationally.[BN] Attorneys for Plaintiff: Erik M. Bashian, Esq. BASHIAN & PAPANTONIOU, P.C. 500 Old Country Road, Ste. 302 Garden City, NY 11530 Telephone: (516) 279-1554 Facsimile: (516) 213-0339 E-mail: eb@bashpaplaw.com XPO LOGISTICS: Bernstein Liebhard Files Class Action Lawsuit ------------------------------------------------------------ Bernstein Liebhard LLP, a nationally acclaimed investor rights law firm, announces that a securities class action lawsuit has been filed on behalf of those who purchased or acquired the securities of XPO Logistics, Inc. ("XPO" or the "Company") (NYSE: XPO) between February 26, 2014 and December 12, 2018, both dates inclusive (the "Class Period"). The lawsuit seeks to recover XPO shareholders' investment losses. If you purchased XPO securities, and/or would like to discuss your legal rights and options, please visit XPO Shareholder Class Action Lawsuit or contact Daniel Sadeh toll free at (877) 779-1414 or dsadeh@bernlieb.com. According to the lawsuit, throughout the Class Period Defendants made false and/or misleading statements and/or failed to disclose that: (1) XPO's highly touted aggressive M&A strategy had yielded only minimal returns to the Company; (2) XPO was utilizing improper accounting practices to mask its true financial condition, including, inter alia, under-reporting of bad debts and aggressive amortization assumptions; and (3) as a result, the Company's public statements were materially false and misleading at all relevant times. On December 12, 2018, Spruce Point Capital Management ("Spruce Point") published a report regarding XPO, entitled "Trucking Ridiculous; End of the Road." The Spruce Point report asserted that a "forensic investigation" into XPO had revealed, "financial irregularities that conveniently cover [the Company's] growing financial strain and inability to complete additional acquisitions despite repeated promises." Spruce Point reported that it had uncovered, among other issues, "concrete evidence to suggest dubious tax accounting, under-reporting of bad debts, phantom income through unaccountable M&A earn-out liabilities, and aggressive amortization assumptions: all designed to portray glowing ‘Non-GAAP' results." The Spruce Point report further stated that "XPO insiders have aggressively reduced their ownership interest in the Company since coming public, and recently enacted a new compensation structure tied to ‘Adjusted Cash Flow Per Share'—defined in such a non-standard way that it is practically meaningless." Spruce Point also reported that "[i]n our opinion, XPO has used a nearly identical playbook from [URI] leading up to its SEC investigation, executive felony convictions, and share price collapse." On this news, XPO's stock fell $15.77 per share or approximately 26% to close at $44.50 per share on December 13, 2018, damaging investors. If you wish to serve as lead plaintiff, you must move the Court no later than February 12, 2019. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. Your ability to share in any recovery doesn't require that you serve as lead plaintiff. If you choose to take no action, you may remain an absent class member. If you purchased XPO securities, and/or would like to discuss your legal rights and options, please visit https://www.bernlieb.com/cases/xpo-logistics-inc-xpo-lawsuit-class-action-fraud-stock-101 Daniel Sadeh,Esq. Bernstein Liebhard LLP 10 East 40th Street, New York New York 10016 Telephone: (877) 779-1414 E-mail: dsadeh@bernlieb.com [GN] XPO LOGISTICS: Robbins Arroyo Files Class Action ------------------------------------------------ Shareholder rights law firm Robbins Arroyo LLP disclosed that purchasers of XPO Logistics (NYSE: XPO) filed a class action complaint against the company's officers and directors for alleged violations of the Securities Exchange Act of 1934 between February 26, 2014 and December 12, 2018. XPO Logistics provides transportation and logistics services domestically and internationally. View this information on the law firm's Shareholder Rights Blog: https://www.robbinsarroyo.com/xpo-logistics-inc/ XPO Accused of Dubious Tax Accounting To Cover Financial Strain According to the complaint, Fortune Magazine noted that XPO "has grown from $177 million in sales in 2011 to $17 billion today, thanks largely to an incredible run of acquisitions." CEO and Chairman of the Board Bradley Jacobs' tenure at XPO has been characterized by an aggressive mergers and acquisition strategy. On August 2, 2017, Jacobs announced plans to earmark up to $8 billion for additional acquisitions. On December 12, 2018, Spruce Point Capital Management published a report asserting that XPO was covering financial irregularities, and that it had evidence to suggest XPO was utilizing dubious tax accounting methods and aggressive amortization assumptions amongst other factors to portray glowing 'Non-GAAP' results. By Spruce Point's calculations, XPO's acquisitions had "generated $73m of cumulative adjusted free cash flow in an expansionary economic period… [and is] indicative of a failed business strategy yielding a paltry 1.2% return on invested capital." Following the publication of the Spruce Point report, XPO's stock price fell $15.77, or 26.17%, to close at $44.50. XPO Logistics Shareholders Have Legal Options Leonid Kandinov, Esq. Robbins Arroyo LLP 600 B Street, Suite 1900 San Diego, CA 92101 Telephone: (619) 525-3990 Toll Free: (800) 350-6003 Website: www.robbinsarroyo.com Email: LKandinov@robbinsarroyo.com [GN] YOUNIQUE LLC: Ct. Certifies Ca., Fla., Ohio Classes in "Schmitt" ---------------------------------------------------------------- The Hon. James V. Selna grants in part and denies in part the Plaintiffs' motion for class certification in the lawsuit entitled Megan Schmitt v. Younique LLC, Case No. 8:17-cv-01397-JVS-JDE (C.D. Cal.). Judge Selna grants in part the Plaintiffs' motion to certify the California, Florida and Ohio classes. Judge Selna denies the Plaintiff' motion to certify the Tennessee class. This case concerns the marketing and sales of Younique's mascara product, Moodstruck 3D Fiber Lashes (the "Lash Enhancer") from October 2012 until July 2015. The Lash Enhancer consists of two components, a "Transplanting Gel" and "Natural Fibers." Younique represented that the Natural Fiber component was "natural" and consisted of "100% Natural Green Tea Fibers" on the Lash Enhancer's label, according to the Court's Civil Minutes. However, the Plaintiffs allege that the Natural Fiber component did not actually contain any green tea leaves and instead was composed of ground-up nylon. The Plaintiffs allege that a reasonable person would not consider nylon "natural." The Plaintiffs sought certification of four state classes: California, Tennessee, Ohio, and Florida. The proposed class definitions are: * California Class: All California consumers who purchased stand-alone Moodstruck 3D Fiber Lashes between October 2012 and July 2015 for personal, family or household use. * Tennessee Class: All Tennessee consumers who purchased stand-alone Moodstruck 3D Fiber Lashes between October 2012 and July 2015 for personal, family or household use. * Ohio Class: All Ohio consumers who purchased stand-alone Moodstruck 3D Fiber Lashes between October 2012 and July 2015 for personal, family or household use. * Florida Class: All Florida consumers who purchased standalone Moodstruck 3D Fiber Lashes between October 2012 and July 2015 for personal, family or household use.[CC] ZIMMER BIOMET: Court Partly Stays J. Carl's FLSA Suit ----------------------------------------------------- In the case, JAMES KARL, individually and on behalf of all others similarly situated, Plaintiff, v. ZIMMER BIOMET HOLDINGS, INC., a Delaware corporation; ZIMMER US, INC., a Delaware corporation; BIOMET U.S. RECONSTRUCTION, LLC, an Indiana limited liability company; BIOMET BIOLOGICS, LLC, an Indiana limited liability company; and BIOMET, INC., an Indiana corporation, Defendants, (N.D. Cal.), Judge William Alsup of the U.S. District Court for the Northern District of California granted in part and denied in part the Defendants' motion to stay pending resolution of its petition for writ of mandamus. Pursuant to Civil Local Rule 7-1(b), Judge Alsup finds the Defendants' motion is suitable for submission without oral argument, and therefore vacated the hearing scheduled for Jan. 10, 209. In August 2015, Karl signed a sales associate agreement with the Defendants and thereafter began working for them as a sales representative in California. The agreement classified the Plaintiff and other California-based sales representatives as independent contractors and included a forum-selection clause identifying Indiana as the exclusive forum. The Plaintiff alleges that the Defendants misclassified him and other sales representatives as independent contractors rather than employees. As such, he raises claims for relief for violations of the FLSA, Industrial Welfare Commission Wage Order 4-2001, the California Labor Code for unpaid wages and overtime premiums, and related California Labor Code claims, including: meal and rest period violations, failure to provide itemized wage statements, failure to reimburse business expenses, and related civil and statutory penalties. An order dated Nov. 6, 2018, the Court denied the Defendants' motion to transfer the instant action to the Northern District of Indiana pursuant to the forum-selection clause found in the sales associate agreement based on California Labor Code Section 925, which makes forum-selection clauses voidable per public policy. The order also denied the Defendants' motion to dismiss and strike. On Nov. 29, 2018, the Defendants filed a petition for writ of mandamus with the court of appeals in connection with the order denying the Defendants' motion to transfer. The Defendants now move to stay proceedings pending resolution by our court of appeals of the writ petition. The Plaintiff opposes. Judge Alsup finds that while the Defendants have not made a strong showing that it is likely to succeed on the merits, they have shown irreparable harm absent a stay to a certain extent. His Order therefore finds that the balance of equities weigh in favor of granting a partial brief stay. A stay on discovery, however, he says is not warranted. The Defendants have not shown the requisite irreparable harm due to reasonable discovery. Though they argue that discovery would be burdensome as their witnesses are located in Indiana, the Judge finds that the Plaintiff -- who chose the venue -- should bear the burden of deposing relevant witnesses in Indiana. The gravamen of the Defendants' alleged discovery woes are thus moot anyway. The case will go forward somewhere -- whether in California or in Indiana -- so the Court might as well make progress on discovery while the petition remains unresolved. So, the discovery will be useful even if the action is ultimately transferred to the Northern District of Indiana. Therefore, to the extent stated, Judge Alsup granted in part the Defendants' request for a stay pending the court of appeals' ruling on the writ petition. The Plaintiff will file his motion for conditional certification of an FLSA action by March 28, 2019 by noon. The Defendants' motion is otherwise denied. The discovery will proceed as scheduled. The hearing scheduled for Jan. 10, 2019 is vacated. A full-text copy of the Court's Jan 8, 2019 Order is available at https://is.gd/ReKfMV from Leagle.com. James Karl, on behalf of himself, and on behalf of a class of those similarly situated, Plaintiff, represented by Alec Llewellyn Segarich -- alec.segarich@lrllp.com -- Lohr Ripamonti & Segarich LLP, Denis S. Kenny -- denis@sfcounsel.com -- Scherer & Smith, LLP & Jason Shelton Lohr -- jason.lohr@lrllp.com -- Lohr Ripamonti & Segarich LLP. Zimmer Biomet Holdings, Inc., a Delaware Corporation, Zimmer US, Inc., a Delaware Corporation, Biomet Inc., an Indiana Corporation, Biomet U.S. Reconstruction, LLC, an Indiana limited liability company & Biomet Biologics, LLC, an Indiana limited liability company, Defendants, represented by Eric Meckley -- eric.meckley@morganlewis.com -- Morgan, Lewis & Bockius LLP & Joseph Raymond Lewis -- joseph.lewis@morganlewis.com -- Morgan Lewis. ********* 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 ***