/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/190301.mbx C L A S S A C T I O N R E P O R T E R Friday, March 1, 2019, Vol. 21, No. 44 Headlines 1859-HISTORIC HOTELS: Martinez to Recover Withheld Tips, OT Pay 247.AI INC: California Court Dismisses Ford Suit With Prejudice ALBERTO DOMINGUEZ-BALI: Duarte Seeks Unpaid Overtime Pay AMP: Burford Capital Bankrolling One of Class Actions ARTISANAL LLC: Sued Over Unpaid Wages, Misappropriated Tip ASCENA RETAIL: Additional Cash Distribution in Rougvie Suit Ordered AT&T MOBILITY: Bid to Certify Class in Gorss Motels Suit Denied BAY AREA TRAFFIC: Cervantes Suit Alleges Labor Code Violations BAYER HEALTHCARE: Court Narrows Claims in Sun Protection Suit BERESFORD CORP: Viala Files Suit in Cal. Super. Ct. BIRD RIDES: Machowski Suit Asserts Disabilities Act Violation BJ'S PAINT: Fails to Properly Pay Overtime Under FLSA, Henry Says BP EXPLORATION: Court Dismisses M. Banegas' Deepwater Horizon Suit CALIFORNIA: Court Dismisses Inmate's Pro Se Class Certification Bid CANADA: Sued Over Miscalculation of Veterans' Disability Pensions CERTIFIED FOLDER: Court Requires Additional Briefing in Stone CHARLOTTE SCHOOL: Barchiesi Appeals W.D.N.C. Ruling to 4th Cir. CHECKERS DRIVE-IN: Medgebow Sues Over Illegal SMS Ads CHICAGO, IL: Faces Class Action Over Red-Light Camera Tickets COOK COUNTY, IL: McFields' Bid to Certify Class Under Advisement COUNTY JANITORIAL: Cal. App. Affirms Arbitration Denial in Castrej D & A SERVICES: Certification of Class Sought in Stoviak Suit D&D LIFT: Ross Suit Alleges Calif. Labor Code Violations DC CONSTRUCTION: Imel Suit Seeks to Enforce Rights Under FLSA DECIBELS OF OREGON: Court Narrows Claims in Wilson FLSA Suit DECIBELS OF OREGON: Court Narrows FLSA Claims in Hemming DIRECT FLOW: Court Orders Supplemental Brief on Reynolds Suit Deal DUPLIN COUNTY, NC: Court Quashes Subpoena in FCRA Suit EB SERVICES INC: De La Cruz Files Suit Over Unpaid Overtime EGS FINANCIAL: Certification of Class Sought in Cheek Suit FBCS INC: Hayes Disputes Time-barred Collection Letter GATE GOURMET: Removes Garcia FLSA Class Suit to C.D. California GEORGIA: Court Denies Inmate's Pro Se Class Certification Bid GRACE AND LACE: Kiler Asserts Breach under Disabilities Act H&M HENNES: Faces Haggar Class Suit Alleging ADA Violations HEARTLAND AUTOMOTIVE: Johnson Sues Over Unpaid Overtime Wages HOME HEALTH RESOURCES: Mathis Suit to Recover Overtime Pay HYDRO ONE: Aird Attorney Discusses Class Action Dismissal JONATHAN NEIL: Court Requires Supplemental Briefing in Brown LM WIND: Parties Directed to Address Issues in Rosie Bobo Suit LOS ROBLES: Settles Employees' Back Wages Class Action for $3MM LUPER ENTERPRISES: Borozny Asserts Breach under ADA in Florida MARKET PLUS: Retina Associates Sues over Unsolicited Fax Ads MDL 2591: Burkes Can't Intervene in Syngenta Ag MIR 162 Corn Suit MDL 2741: 2 Suits v. Monsanto Transferred to N.D. California MDL 2775: 2 Smith & Nephew BHR Suits Transferred to Maryland MDL 2782: MSP Recovery Suit Transferred to N.D. Georgia MDL 2800: Smith v. Equifax Transferred to Georgia Northern Dist. MDL 2804: 7 Actions Transferred to Northern District of Ohio MDL 2875: Court Transfers 10 Actions to N.J., Expands MDL Scope MDL 2876: Court Denies Bid to Centralize 6 Debt Collection Suits MDL 2878: 4 Suits vs. Ranbaxy Inc. Transferred to Massachusetts MDL 2879: 11 Suits v. Marriott Transferred to District of Maryland MDL 2880: Court Denies Bid to Centralize 3 H&R Block Employee Suit MEDI WINEBAR: Hernandez Seeks to Recover Minimum & Overtime Wages MERIVALE: Faces Class Action Case for Staff Underpayments MICRON TECHNOLOGY: Rosen Law Files Securities Class Action Lawsuit MIRACLE METHOD: Certification of Class Sought in Wolf Suit NATIONAL COLLEGIATE: Feldman Sues Over Injuries Sustained NATIONAL COLLEGIATE: Graham Sues for Negligence of Athletes' Health NATIONAL COLLEGIATE: Harley Sues Over Disregard of Athlete's Health NAVIOS MARITIME: Roberts Asserts Breach of Fiduciary Duties NESTLE USA: Judge Dismisses 2 Child Labor Class Actions NEVADA GOLD: Assad Files Securities Class Action NORTHSTAR REALTY: Court Denies Bid to Intervene in Boothe Suit OCWEN LOAN: Stromberg Seeks Initial Settlement Approval ORRSTOWN FINANCIAL: Not Compelled to Produce Docs in SEPTA Suit OXNARD SCHOOL: Court Denies Bid to Certify Disabled Students Class P24 LLC: Cajina Suit Alleges FLSA Violations PAPA JOHN'S: Faces Class Action Over "No-Poach" Policy PAPA JOHN'S: Faces Hubbard Wage and Hour Class Suit in Kentucky PATRIOT LAND: Court Denies Dismissal in A. Conover's RESPA Suit PORT AUTHORITY OF NEW YORK: Court Narrows Claims in Talarico Suit PROFESSIONAL TRANSPORTATION: Drivers' Suit Transferred to S.D. Ind. PUBLIC STORAGE: Faces Class Action Over Insurance Product RAZORS EDGE: Berry Suit Alleges FLSA Violation RSVP MEN LLC: Fiallo Sues Over Illegal Telemarketing Calls SAVASENIORCARE ADMINISTRATIVE: Bid to Dismiss Dolison Suit Granted SC STATE PLASTERING: Final Settlement Hearing Set in March SCOTTS MIRACLE-GRO: Morning Song Bird Food Settlement Has Prelim OK SHOREWALK VACATION: Borozny Alleges Violation under ADA in Fla. SNAP INC: Kaskela Law Faces Securities Class Action Lawsuit SOFI DENTAL CARE: Hillow Sues Over Illegal Telemarketing Calls STOP & SHOP SUPERMARKET: Underpays Merchandisers, Falcone Says SYNERGY PHARMACEUTICALS: Concealed TRULANCE Issues, McMullen Says TOWN SPORTS: 2nd Cir. Affirms Preliminary Injunction Denial TRIPLE S PROPERTIES: Court Denies Arbitration Bid in Martinez TWITTER INC: Sued by Murphy Over Misgendering/Deadnaming Policy TYSON FOODS: Darden Opts Out of Class Action, Files Suit UADA CORP: Borozny Asserts Breach under Disabilities Act UBER TECH: Diva Limousine Files Appeal vs. N. Calif. Dist. Ct. UNITED STATES: Westbrook Files Suit v. Justice Dept. URBAN FOOD BAZAAR: Gupta Labor Suit Seeks Unpaid Overtime UTLA: LAUSD Teachers Union Dues Targeted in Class-Action Lawsuit UXIN LIMITED: Faces Machniewicz IPO-related Class Action in N.Y. VISIONSTREAM: Union Gets in Behind Proposed Class Action WALGREEN CO: Court Narrows Claims in C. Moya's Suit Asbestos Litigation ASBESTOS UPDATE: 3M Accrues $28MM Aearo-Related Costs at Dec. 31 ASBESTOS UPDATE: 3M Accrues $673MM for Respirator Suits at Dec. 31 ASBESTOS UPDATE: 3M Co. Still Faces 2,320 Claimants at Dec. 31 ASBESTOS UPDATE: 43,100 Claims v. Goodyear Tire Pending at Dec. 31 ASBESTOS UPDATE: Appeal Still Ongoing over $13MM Verdict in Lopez ASBESTOS UPDATE: Cabot Still Faces 35,000 Claimants at Dec. 31 ASBESTOS UPDATE: Emerson Electric Had $332MM Liability at Dec. 31 ASBESTOS UPDATE: Exelon Unit Had US$79MM Reserves at Dec. 31 ASBESTOS UPDATE: Hobart Not Liable for Vulcan-Hart's Liabilities ASBESTOS UPDATE: Scotts Miracle-Gro Still Faces Suits at Dec. 29 ASBESTOS UPDATE: Thomas-Fish Hazardous Product Claim Dismissed ASBESTOS UPDATE: WestRock Co. Had 775 PI Suits at Dec. 31 ********* 1859-HISTORIC HOTELS: Martinez to Recover Withheld Tips, OT Pay --------------------------------------------------------------- Justin M. Martinez, on behalf of himself and all similarly situated persons, Plaintiff, v. 1859-Historic Hotels, Ltd. and Paul York, Defendants, Case No. 19-cv-00200 (D. Colo., January 23, 2019), seeks to recover diverted employee tips, minimum wages and overtime for all hours worked over 40 hours in a workweek under the federal Fair Labor Standards Act, the Colorado Wage Claim Act, the Colorado Minimum Wage Act and the Colorado Minimum Wage Order. 1859-Historic Hotels operates as "Cliff House," a historic hotel located at 306 Canon Avenue, Manitou Springs, Colorado 80829, providing luxury accommodations, event and dining services. Martinez worked for Cliff House since October 2014 as a tipped server. [BN] Plaintiff is represented by: Gary M. Kramer, Esq. GARY KRAMER LAW, LLC 1465 Kelly Johnson Blvd, Suite 210 Colorado Springs, CO 80920 Phone: (719) 694-2783 Fax: (719) 452-3622 Email: gary@garykramerlaw.com 247.AI INC: California Court Dismisses Ford Suit With Prejudice --------------------------------------------------------------- In the case, MICHAEL FORD, et al., Plaintiffs, v. [24]7.AI, INC., Defendant, Case No. 18-cv-02770-BLF (N.D. Cal.), Judge Beth Labson Freeman of the U.S. District Court for the Northern District of California, San Jose Division, (i) denied the parties' stipulated request to set a schedule for further briefing; and (ii) granted the Defendant's motion to dismiss the present action, Ford, under the first-to-file rule. The putative class action was filed on May 10, 2018, asserting claims arising out of a 2017 data breach that affected customers of several large companies, including Best Buy, Delta Airlines, and Sears, all of which had hired [24]7 to provide sales support to their customers, including online chat services. The Plaintiffs claim that the data breach was caused by [24]7's inadequate security and that [27]7 delayed providing notice of the breach. Defendant [24]7 moves to dismiss the present action under the first-to-file rule, pointing out that the first putative class action arising out of the 2017 data breach was filed in the Central District of California on April 6, 2018 -- Pica, et al. v. Delta Air Lines, Inc., et al. ("Pica"), Case No. 2:18-cv-02876-MWF-E (C.D. Cal.). Alternatively, it moves to transfer the present action to the Central District of California under either the first-to-file rule or under 28 U.S.C. Section 1404(a), or to stay the present action under the first-to-file rule pending disposition of Pica. After completion of briefing, the Court submitted [24]7's motion without oral argument and vacated the hearing which had been set for Jan. 31, 2019. On Feb. 4, 2019, the Court tentatively has determined that Pica is the first-filed action and that application of the first-to-file rule is warranted. The Court has discretion to transfer, stay, or dismiss Ford under the first-to-file rule. Ordinarily, the Court would be inclined to transfer Ford rather than dismissing or staying it. However, the Ninth Circuit made clear in Bozic that a district court may transfer an action under the first-to-file rule only to a district in which venue is proper. Based on In re Bozic, it is not clear that venue is proper in the Central District of California. Noting that neither party had addressed Bozic in the briefing, the Court directed the parties to file 2-page supplemental briefs by Feb. 11, 2019, addressing: (1) the effect of Bozic on this Court's authority to transfer Ford to the Central District of California; and (2) if transfer is not an option, whether the Court should dismiss or stay Ford. Instead of complying with the Court's order, the parties filed a Stipulation to Set Briefing Schedule, proposing to submit five-page supplemental briefs addressing both the issues the Court directed them to brief by Feb. 11, 2019 and the effect of the Pica court's recent tentative ruling dismissing Pica with prejudice. Under the parties' proposed schedule, the Plaintiffs' supplemental brief would be due on Feb. 15, 2019 and [24]7's supplemental brief would be due on Feb. 22, 2019. Judge Freeman denied the parties' stipulated request to set a briefing schedule. As stated in its Order Providing Tentative Ruling, the Court has determined that the first-to-file rule applies. As a courtesy to the parties, the Court granted them an opportunity to comment on the Bozic case, which neither side had addressed, before the Court decided whether to dismiss, transfer, or stay the action pursuant to the first-to-file rule. The parties elected not to avail themselves of that opportunity. Accordingly, she now issues its ruling on [24]7's motion. For these reasons, Judge Freeman granted [24]7's motion to dismiss the present action under the first-to-file rule. She dismissed with prejudice the action under the first-to-file rule. The Clerk will close the file. A full-text copy of the Court's Feb. 12, 2019 Order is available at https://is.gd/99eca7 from Leagle.com. Michael Ford, Plaintiff, represented by Joshua Haakon Watson -- jwatson@justice4you.com -- Clayeo C. Arnold, A Professional Law Corporation, Clayeo C. Arnold -- carnold@justice4you.com -- Clayeo C. Arnold, A Professional Law Corporation, Jean Sutton Martin, Morgan & Morgan Complex Litigation Group, pro hac vice, John A. Yanchunis, Morgan and Morgan, P.A., pro hac vice, Melissa S. Weiner, pro hac vice & Ryan McGee, Morgan and Morgan Complex Litigation Group, pro hac vice. Rudolph Dubrovszky & Noe Gamboa, Plaintiffs, represented by Joshua Haakon Watson, Clayeo C. Arnold, A Professional Law Corporation, Clayeo C. Arnold, Clayeo C. Arnold, A Professional Law Corporation, Jean Sutton Martin, Morgan & Morgan Complex Litigation Group, pro hac vice, Melissa S. Weiner, pro hac vice & John A. Yanchunis, Morgan and Morgan, P.A. Madison Copeland, Plaintiff, represented by Daniel L. Warshaw, Pearson, Simon & Warshaw, LLP, Joseph C. Bourne, Pearson, Simon & Warshaw, LLP, Jean Sutton Martin, Morgan & Morgan Complex Litigation Group, pro hac vice, John A. Yanchunis, Morgan and Morgan, P.A. & Melissa S. Weiner, pro hac vice. [24]7.ai, Inc., a California Corporation, Defendant, represented by Teresa Carey Chow -- tchow@bakerlaw.com -- Baker & Hostetler LLP, Casie Dell Collignon -- ccollignon@bakerlaw.com -- Baker Hostetler LLP, pro hac vice, Matthew D. Pearson -- mpearson@bakerlaw.com -- Baker & Hostetler LLP & Paul G. Karlsgodt -- pkarlsgodt@bakerlaw.com -- Baker Hostetler, LLP, pro hac vice. ALBERTO DOMINGUEZ-BALI: Duarte Seeks Unpaid Overtime Pay -------------------------------------------------------- Arlen C. Duarte, and other similarly-situated individuals, Plaintiff, v. Alberto Dominguez-Bali, M.D. P.A, Alberto Dominguez-Bali and Catherine Dominguez-Bali, individually, Defendants, Case No. 19-cv-20329, (S.D. Fla., January 24, 2019), seeks to recover regular wages, overtime compensation, retaliatory damages, liquidated damages, costs and reasonable attorney's fees under the provisions of pursuant to the Fair Labor Standards Act. Defendants operate Dominguez Medical Office, a professional medical office, operating in two locations. Duarte worked at both locations as a medical office front desk receptionist. She worked a minimum of 10 hours daily and was unable to take bona fide lunch breaks. She was eventually fired for her complaints about overtime and unpaid wages. [BN] Plaintiff is represented by: Zandro E. Palma, Esq. ZANDRO E. PALMA, P.A. 9100 S. Dadeland Blvd., Suite 1500 Miami, FL 33156 Telephone: (305) 446-1500 Facsimile: (305) 446-1502 Email: zep@thepalmalawgroup.com AMP: Burford Capital Bankrolling One of Class Actions ----------------------------------------------------- Peter Ryan, writing for ABC, reports that the world's biggest litigation funder has set up shop in Australia to get a slice of the booming class action business, with some high profile ones stemming from the banking Royal Commission. The US-based Burford Capital is already bankrolling one of the potential class actions against the troubled wealth manager AMP which has had its reputation and market value smashed by Royal Commission revelations including the "fee for no service" scandal. [GN] ARTISANAL LLC: Sued Over Unpaid Wages, Misappropriated Tip ---------------------------------------------------------- Ashley Galleher, on behalf of herself and all others similarly situated, Plaintiff, v. Artisanal, LLC and Bill Greene, Defendants, Case No. 1:19-cv-00055 (W.D. N.C., February 18, 2019) is a collective action for violation of the Fair Labor Standards Act ("FLSA"), and class action for violation of the North Carolina Wage and Hour Act ("NCWHA"). The Defendants did not permit Plaintiff and other Tipped Workers to retain all the tips they earned. Specifically, Defendants required Plaintiff to participate in a mandatory tip pooling arrangement and share tips with employees and/or managers who are not entitled to retain tips under the FLSA. The Defendants also regularly required Plaintiff and other Tipped Workers to work hours in excess of forty in a workweek, thus triggering the overtime requirements of the FLSA. The Defendants' failure to comply with the terms of the overtime and minimum wage requirements of the FLSA regarding the payment of overtime and taking of tip credit against minimum wages was a willful violation of the FLSA, says the complaint. Galleher was employed by Artisanal as a server, who is a resident of Zionville, North Carolina. Artisanal is a domestic business corporation registered and in good standing in the State of North Carolina, owned by Bill Greene.[BN] The Plaintiff is represented by: Philip J. Gibbons, Jr., Esq. Craig L. Leis, Esq. GIBBONS LEIS, PLLC 14045 Ballantyne Corporate Place, Ste. 325 Charlotte, NC 28277 Phone: 704-612-0038 Email: phil@gibbonsleis.com craig@gibbonsleis.com ASCENA RETAIL: Additional Cash Distribution in Rougvie Suit Ordered ------------------------------------------------------------------- In the case, CAROL ROUGVIE, et al., v. ASCENA RETAIL GROUP, INC., et al, Civil Action No. 15-724 (E.D. Pa.), Judge Mark A. Kearney of the U.S. District Court for the Eastern District of Pennsylvania directed the Claims Administrator to distribute identified amounts to the Class Counsel, the counsel for the Comlish and Kallay objectors, Justice Stores for the $8 Million reverter, and promptly move for approval of the specific supplemental distribution to the 607,215 claimants. The lawyers creatively settled this deceptive sales practices action against Justice Stores on behalf of 18.4 million consumers in exchange for stopping an allegedly deceptive marketing strategy, up to $402 Million in vouchers to use at the retailer's stores for those who wanted a voucher, and up to $50.8 Million immediately deposited in a Settlement Fund allocated to pay up to $27.8 Million in cash to consumers requesting cash, $8 Million for claims administration, up to $14.1 Million in attorney's fees, and an unlimited amount of the remaining funds reverting to Justice Stores to cover voucher exposure. After carefully considering several objections to the unlimited reverter, the Court approved an arms'-length settlement capping Justice Stores' reverter at $8 Million and awarded attorney's fees to the Class Counsel based on hours worked. Six objectors appealed, and the Class Counsel then paid them $467,000 out-of-pocket (with a small contribution from Justice Stores) in mid-2017 to dismiss the appeals. After a year of monitoring the consumers redeeming approximately $30 Million in vouchers and cashing approximately $10 Million in checks, the Court must now distribute the unanticipated millions of dollars left in the Settlement Fund. Everyone agrees to a supplemental distribution to the Class Members who filed claims. But the dilemma now is how to distribute the unanticipated large balance in the Settlement Fund. Judge Kearney holds that the lawyers diligently worked to provide a substantial Class benefit to 18.4 million consumers, with over one million persons taking advantage of the economic benefits. It is now time to distribute the balance in the Settlement Fund. While he must carefully examine the requests for money paid from the Class Settlement Fund to professionals, he finds the Class Counsel, and to a lesser extent, the counsel for the Comlish and Kallay objectors, fulfilled their roles and improved the Class benefit. He does not share the same view of the six objector-appellants' counsel; not because they appealed the Court's Order but because they filed appeals arguing for the best interests of the Class and then sold out for hundreds of thousands of dollars in objector greenmail. He is optimistic as to the effect of amended Federal Rule 23 (e)(5) in discouraging this lawyering practice based on fees alone. The Judge is also concerned with the record-keeping and supervision of this large Settlement Fund by the Claims Administrator. The Claims Administrators should be paid for their demonstrated services. But the days of submitting a bill in a class settlement and expecting it will be automatically approved are hopefully over. The Judge honors the representations made to induce his finding of fairness of the settlement terms to the Class. He does approve attempts to change those terms, either because Justice Stores wants more reverter money or the Claims Administrator did not properly budget for its services. In accompanying Orders, Judge Kearney approved supplemental cash distributions to approximately 607,000 Class Members after costs and paying fees based on today's Class benefit but must, consistent with our fiduciary role, reject paying: the Claims Administrator's unsupported or unbudgeted reimbursements; Justice Stores' request for an increased reverter; over $1.2 Million in fees to an objector group who, along with eleven others, objected to the unlimited reverter; excessive costs to the Class Counsel; and, incentive fees to objectors absent evidence of their specific efforts providing a benefit to the Class. Specifically, the Judge directed the Claims Administrator to distribute identified amounts to the Class Counsel, counsel for the Comlish and Kallay objectors, Justice Stores for the $8 Million reverter, and promptly move for approval of the specific supplemental distribution to the 607,215 claimants. While deeply skeptical of handsomely paying off objector appeals to move class action settlements to earlier distribution, the Judge must also deny a request from one objector group to order five objector-appellants disgorge the hundreds of thousands of dollars Class Counsel paid them in 2017 to withdraw their 2016 appeals as there is no present basis under our inherent power to find unjust enrichment or otherwise apply the Dece. 1, 2018 amendment to Federal Rule 23(e)(5) now requiring court approval of these payoffs agreed to settle appeals. A full-text copy of the Court's Feb. 12, 2019 Memorandum is available at https://is.gd/bHBZdr from Leagle.com. MELINDA MEHIGAN, FONDA KUBIAK, MARGUERITE SINKLER GILDER, CAROLINE MANSOUR, CAROL ROUGVIE, TIFFANY BOLTON & KARA BELL, Plaintiffs, represented by KEVIN E. RAPHAEL -- ker@pietragallo.com -- PIETRAGALLO GORDON ALFANO BOSICK & RASPANTI LLP, WILLIAM PIETRAGALLO, II -- wp@pietragallo.com -- ANTHONY J. COYNE -- acoyne@mggmlpa.com -- MANSOUR GAVIN LPA, pro hac vice, BRENDON P. FRIESEN -- bfriesen@mggmlpa.com -- MANSOUR GAVIN LPA, pro hac vice, EDWARD H. SKIPTON, III, Pietragallo Gordon Alfano Bosick & Raspanti, LLP, EDWARD J. WESTLOW, pro hac vice, ERNEST P. MANSOUR, MANSOUR GAVIN LPA, pro hac vice, KENNETH D. MCARTHUR, JR., PIETRAGALLO GORDON ALFANO BOSICK, pro hac vice & ROBERT G. MANSOUR, pro hac vice. CAROL COWHEY, Plaintiff, represented by KEVIN E. RAPHAEL, PIETRAGALLO GORDON ALFANO BOSICK & RASPANTI LLP, EDWARD H. SKIPTON, III, Pietragallo Gordon Alfano Bosick & Raspanti, LLP, EDWARD J. WESTLOW, pro hac vice & KENNETH D. MCARTHUR, JR., PIETRAGALLO GORDON ALFANO BOSICK, pro hac vice. ASCENA RETAIL GROUP, INC., doing business as JUSTICE STORES, Defendant, represented by EZRA DODD CHURCH -- ezra.church@morganlewis.com -- MORGAN LEWIS & BOCKIUS, LLP, CHRISTOPHER JOHN MANNION -- christopher.mannion@morganlewis.com -- MORGAN LEWIS & BOCKIUS LLP & GREGORY T. PARKS -- gregory.parks@morganlewis.com -- MORGAN, LEWIS & BOCKIUS. TWEEN BRANDS, INC., doing business as JUSTICE STORES, Defendant, represented by DAVID D. YEAGLEY -- dyeagley@ulmer.com -- ULMER & BERNE - CLEVELAND, EZRA DODD CHURCH, MORGAN LEWIS & BOCKIUS, LLP, MICHAEL N. UNGAR -- mungar@ulmer.com -- ULMER & BERNE, CHRISTOPHER JOHN MANNION, MORGAN LEWIS & BOCKIUS LLP & GREGORY T. PARKS, MORGAN, LEWIS & BOCKIUS. STEVEN F. HELFAND, In Propria Persona, Respondent, pro se. BARBARA COMLISH & KATHRYN ARTLIP, Respondents, represented by ADAM E. SCHULMAN, Hamilton Lincoln Law Institute. KELSEY D FOLIGNO, Respondent, represented by GLENN A. MANOCHI -- gmanochi@lightmanlaw.com -- LIGHTMAN & MANOCHI. PAMELA SWEENEY, Respondent, pro se. AT&T MOBILITY: Bid to Certify Class in Gorss Motels Suit Denied --------------------------------------------------------------- The Hon. Janet Bond Arterton denied the Plaintiff's motion for class certification in the lawsuit styled GORSS MOTELS, INC. v. AT&T MOBILITY LLC and AT&T MOBILITY NATIONAL ACCOUNTS LLC, Case No. 3:17-cv-00403-JBA (D. Conn.). The Plaintiff brings this lawsuit against the Defendants for alleged violation of the Telephone Consumer Protection Act of 1991, as amended by the Junk Fax Prevention Act of 2005, for sending an unsolicited fax advertisement. The Plaintiff moves for class certification pursuant to Rules 23(a) and (b)(3) of the Federal Rules of Civil Procedure. The class is defined as: All persons or entities who were successfully sent a facsimile on or about January 14, 2014, stating: "Visit your AT&T Partner online store at att.com/wireless/wyndhamfranchisees for your exclusive specials such as $50 new smartphone activation credit, $100 instant rebate on all tablets while supplies last, 16% on qualifying monthly charges," and "Learn about AT&T's new Mobile Share Value Plan!," and "For a limited time, switch from T-Mobile and receive up to $450 when you trade in your current smartphone!." In her ruling, Judge Arterton opined that the Plaintiff has not met its burden to demonstrate that the requirements of Rule 23, citing Raitport, 312 F. Supp. 3d at 234-235 (citing cases "den[ying] class certification in cases involving allegedly defective opt-out notices and arising under the TCPA" because of question of individualized consent, and denying class certification for Plaintiffs failure to show that "questions of law common to class members predominate").[CC] BAY AREA TRAFFIC: Cervantes Suit Alleges Labor Code Violations -------------------------------------------------------------- Arturo Cervantes, on behalf of himself and others similarly situated v. Bay Area Traffic Solutions, Inc. and Does 1 through 50, Case No. RG19001214 (Cal. Super. Ct., Alameda Cty., January 3, 2019), is brought against the Defendants for violations of the California Labor Code. The Plaintiff alleges that the Defendants failed to pay minimum wages and failed to pay wages and overtime. The Plaintiff was employed as non-exempt, hourly traffic controller and technician by the Defendant. The Defendant Bay Area Traffic Solutions, Inc. ("BATS"), is a traffic control company in California. [BN] The Plaintiff is represented by: David Yeremian, Esq. Alvin B. Lindsay, Esq. DAVID YEREMIAN & ASSOCIATS, INC. 535 N. Brand Blvd., Suite 705 Glendale, CA 91203 Tel: (818) 230-8380 Fax: (818) 230-0308 E-mail: david@yeremianlaw.com alvin@yeremianlaw.com BAYER HEALTHCARE: Court Narrows Claims in Sun Protection Suit ------------------------------------------------------------- The United States District Court for the Northern District of Illinois, Eastern Division, issued a Memorandum Opinion and Order granting in part and denying in part Defendant's Motion to Dismiss the Amended Complaint in the case captioned KEVIN CURRAN, Plaintiff, v. BAYER HEALTHCARE LLC, Defendant. No. 17 C 7930. (N.D. Ill.). Plaintiff Kevin Curran alleges that he purchased sunscreen labeled with a sun protection factor (SPF) of 30 when, in fact, testing revealed that the SPF was less than 15. He filed this suit, a putative class action, against defendant Bayer Healthcare LLC, asserting a number of state-law claims. PREEMPTION The Defendant argues that all of plaintiff's claims are preempted by the FDCA because he does not allege that the testing that allegedly showed that defendant's SPF labeling is inaccurate was identical with that required by 21 C.F.R. Section 201.327(i). Defendant is incorrect. Plaintiff has alleged that his test study met all required testing procedures for SPF testing specified under 21 C.F.R. Section 201.327(i). The Defendant argues that an inspection of the test results reveals that they are deficient on their face because the testing laboratory set the target SPF too low. Plaintiff responds that defendant is misinterpreting the document, which shows that defendant's sunscreen failed a test for SPF higher than 20, so the lab lowered the target to determine the true SPF in a subsequent round of testing. This is a factual dispute that the Court cannot resolve on the pleadings. Defendant is free to reprise this argument at trial or summary judgment, if the evidence supports it, but the argument is out of place at the pleading stage. Plaintiff has alleged that he followed the testing methodology required by the FDA, and to require more would be to require him to prove his claim in the complaint, which would exceed federal pleading standards. PRIMARY JURISDICTION The doctrine of primary jurisdiction applies when: "enforcement of a claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views. No fixed formula exists for applying the doctrine of primary jurisdiction. In every case the question is whether the reasons for the existence of the doctrine are present and whether the purposes it serves will be aided by its application in the particular litigation." The Defendant argues that the Court should dismiss or stay this case pursuant to the doctrine of primary jurisdiction because, according to defendant, the Food and Drug Administration (FDA) should determine whether defendant's sunscreen labeling is accurate. But there are two problems with defendant's position. First, defendant has not identified any relevant proceedings to which this Court should defer in resolving the issues presented by this case. This press announcement describes in general terms the FDA's commitment to making sure that the sunscreen] products consumers use deliver their advertised benefits and promoting safe and effective innovations for sun protection, but it does not describe any specific regulatory proceedings that will impact the resolution of this case. Under these circumstances, deference to the FDA is unwarranted. The Court will not dismiss or stay this case pursuant to the doctrine of primary jurisdiction. PERSONAL JURISDICTION AND BRISTOL-MEYERS SQUIBB The Defendant argues that, based on Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County, 137 S.Ct. 1773, 1781-82 (2017), this Court lacks personal jurisdiction over the claims of any prospective class members who reside outside of the state of Illinois, and it should therefore strike plaintiff's nationwide class allegations. Bristol-Myers Squibb held that due process does not permit courts to exercise specific personal jurisdiction over claims that are unconnected to the forum state and brought by nonresident plaintiffs against a nonresident defendant, even when the nonresident plaintiffs join in a lawsuit initiated by plaintiffs who suffered injury in the forum state. The Defendant urges the Court to follow the decisions applying Bristol-Myers Squibb to class actions, arguing they represent the growing weight of authority in this district but a leading treatise states that most courts to address the issue nationwide have concluded that Bristol-Myers does not apply to class actions. The court explained that to apply Bristol-Myers to class actions would be to hold that although absent class members are not parties for purposes of diversity of citizenship, amount in controversy, Article III standing, and venue, they are parties for purposes of personal jurisdiction over the defendant. This Court agrees with Al Haj that that cannot be right. The Defendant's motion is denied as to the nationwide class allegations. BREACH OF IMPLIED CONTRACT CLAIM The Defendant argues that plaintiff's second claim for relief, breach of implied contract through violation of the implied covenant of good faith and fair dealing, fails to state a claim. According to defendant, plaintiff has not alleged any facts supporting the existence of an implied contract, nor is there any stand-alone cause of action under Illinois law for breach of the implied covenant of good faith and fair dealing. In response, plaintiff argues that he has stated an express warranty claim, which is a kind of breach of contract claim, and that contract, like every other contract coming under the penumbra of Illinois law, contains an implied covenant of good faith and fair dealing. But if that is plaintiff's theory, then the Court fails to see how plaintiff's second claim for relief differs from his first; plaintiff does not explain how defendant breached other than by selling sunscreen labeled with the wrong SPF, which is exactly how defendant allegedly breached the express warranty. Under Illinois law, plaintiff cannot state a claim for breach of the implied covenant that merely duplicates a claim for breach of express contract terms. Plaintiff's second claim for relief is dismissed as superfluous and duplicative of his first. UNJUST ENRICHMENT The Defendant argues that plaintiff's unjust enrichment claim should be dismissed because it is just a tagalong to the ICFA claim and must rise or fall with it to the extent it rests on the same alleged misconduct. Defendant states the law correctly, but the case defendant cites provides no basis to dismiss the unjust enrichment claim at this point because the ICFA claim has not fallen defendant has not even moved to dismiss it, specifically. Defendant's motion is denied as to the unjust enrichment claim. The Defendant's motion to dismiss is granted in part and denied in part. The motion is granted as to plaintiff's second and third claims for relief; it is otherwise denied. A full-text copy of the District Court's January 31, 2018 Memorandum Opinion and Order is available at https://tinyurl.com/y7ybtzt2 from Leagle.com. Kevin Curran, Individually and on Behalf of All Others Similarly Situated, Plaintiff, represented by Carl V. Malmstrom -- malmstrom@whafh.com -- Wolf Haldenstein Adler Freeman & Herz LLC, Janine L. Pollack -- pollackj@thesultzerlawgroup.com -- The Sultzer Law Group, PC, pro hac vice & Stephen DeNittis, DeNittis Osefchen Prince, P.C. Bayer Healthcare LLC, Defendant, represented by Eugene A. Schoon -- ESCHOON@SIDLEY.COM -- Sidley Austin LLP, Katherine L. Olson -- KATHERINE.OLSON@SIDLEY.COM -- Sidley Austin LLP, pro hac vice, Jacquelyn Erin Fradette -- JFRADETTE@SIDLEY.COM -- Sidley Austin LLP, pro hac vice, Jonathan F. Cohn -- JFCOHN@SIDLEY.COM -- Sidley Austin LLP, pro hac vice & Joshua J. Fougere -- JFOUGERE@SIDLEY.COM -- Sidley Austin LLP, pro hac vice. BERESFORD CORP: Viala Files Suit in Cal. Super. Ct. --------------------------------------------------- A class action lawsuit has been filed against Beresford Corporation. The case is styled as Roger Viala, on behalf of himself, others similarly situated and the general public, Plaintiff v. Beresford Corporation, Andrew Lange and Does 1 to 10, Defendant, Case No. CGC19573774 (Cal. Super. Ct., San Francisco, February 14, 2019). The docket of the lawsuit states the case type as other non exempt complaints. Beresford Corporation operates as a hotel. The Company offers rooms and suites, bathtubs and bidets, food and beverages, valet parking, and in-room wireless internet.[BN] The Plaintiff is represented by: Arlo Garcia Uriarte, Esq. Liberation Law Group, P.C. 2760 Mission St San Francisco, CA 94110 Tel: (415) 695-1000 Fax: (415) 695-1006 Email: arlo@liberationlawgroup.com BIRD RIDES: Machowski Suit Asserts Disabilities Act Violation ------------------------------------------------------------- AMBER MACHOWSKI, WILLIAM BERRY, RUBEN BOBADILLA, ANTHONY SMITH, YALDA SAFFIEH SHARIATI, each individually, and on behalf of all others similarly situated v. BIRD RIDES, INC., a Delaware corporation; NEUTRON HOLDINGS, INC., a Delaware corporation; CULVER CITY, a public entity CITY OF LONG BEACH, a public entity; CITY OF RIVERSIDE, a public entity; CITY OF ANAHEIM, a public entity; CITY OF SANTA ANA, a public entity; CITY OF IRVINE, a public entity; CITY OF GARDEN GROVE, a public entity; and DOES 1-10, Case No. 2:19-cv-01014 (C.D. Cal., February 11, 2019), alleges violations of the Americans with Disabilities Act and the Rehabilitation Act. Bird Rides, Inc., is a Delaware corporation, which rents electric scooters to its customers through a mobile application. Neutron Holdings, Inc., is a Delaware corporation doing business as Lime-S, which rents Lime Scooters to through the Lime App. The lawsuit arises by reason of a deliberate and systematic exploitation of the curb ramps, sidewalks, crosswalks, pedestrian crossings and other walkways (hereafter "Pedestrian Rights of Way") within the Cities of Culver City, Long Beach, Anaheim, Santa Ana, Irvine, Garden Grove and Orange (collectively, the "Cities") by the Electric Scooter Defendants for their own corporate profit to the harm of some of the most vulnerable residents of the Cities -- the disabled, according to the complaint. The Plaintiffs contend that the business model of the Electric Scooter Defendants is based on the unauthorized and illegal, private use of public property (i.e. Pedestrian Rights of Way) for their own business use. Culver City, Long Beach City, Riverside City, Anaheim City, Santa Ana City, Irvine City and Garden Grove City are public entities within the meaning of the ADA, and have received federal financial assistance within the meaning of the Rehabilitation, and state financial assistance within the meaning of the Government Code. The City Defendants are local government entities with the responsibility of providing the Plaintiffs access to its public facilities, programs, services and activities. The true names and capacities of Doe Defendants are presently unknown to the Plaintiffs.[BN] The Plaintiffs are represented by: Anoush Hakimi, Esq. Peter Shahriari, Esq. THE LAW OFFICE OF HAKIMI & SHAHRIARI 7080 Hollywood Blvd., Suite 804 Los Angeles, CA 90028 Telephone: (323) 672-8281 Facsimile: (213) 402-2170 E-mail: anoush@handslawgroup.com peter@handslawgroup.com BJ'S PAINT: Fails to Properly Pay Overtime Under FLSA, Henry Says ----------------------------------------------------------------- PATRICK HENRY, Individually, and on behalf of himself and other similarly situated current and former employees v. BJ'S PAINT AND WALLPAPER CO., a Tennessee For-profit Corporation, and BOBBY RAY FENTRESS, individually, Case No. 3:19-cv-00123 (M.D. Tenn., February 13, 2019), alleges that the Defendants violated the Fair Labor Standards Act in that they failed to properly pay the Plaintiff for all hours he worked by not compensating him at the rate of time and one-half his regular rate of pay for all the hours worked over 40 hours in one workweek. BJ's Paint and Wallpaper Co. is a Tennessee corporation authorized to do business, and does business, in the state of Tennessee. Bobby Ray Fentress is the owner of BJ's Paint and Wallpaper Co. The Defendants paint residential and commercial buildings and structures and provide other, similar services, such as wallpapering. The Defendants conduct business wherever their client's building exists, including jobs in Middle Tennessee, Louisiana, and North Carolina.[BN] The Plaintiff is represented by: J. Russ Bryant, Esq. Robert E. Turner, IV, Esq. Nathaniel A. Bishop, Esq. JACKSON, SHIELDS, YEISER & HOLT, ATTORNEYS AT LAW 262 German Oak Drive Memphis, TN 38018 Telephone: (901) 754-8001 Facsimile: (901) 759-1745 E-mail: rbryant@jsyc.com rturner@jsyc.com nbishop@jsyc.com - and - Nina Parsley, Esq. PONCE LAW 400 Professional Park Drive Goodlettsville, TN 37072 Telephone: (615) 235-0078 E-mail: nina@poncelaw.com BP EXPLORATION: Court Dismisses M. Banegas' Deepwater Horizon Suit ------------------------------------------------------------------ The United States District Court for the Eastern District of Louisiana issued an Order and Reasons granting Defendants' Motion for Summary Judgment in the case captioned MELVIN BANEGAS, v. BP EXPLORATION & PRODUCTION, INC. AND BP AMERICA PRODUCTION CO. SECTION: "R" (1). Civil Action No. 17-7429. (E.D. La.). This case arises from plaintiff Melvin Banegas's alleged exposure to harmful chemicals after the DEEPWATER HORIZON oil spill. the Plaintiff alleges that he was part of an organized effort to clean the shoreline near Venice, Louisiana of toxic materials released as a result of the oil spill. During this work he was allegedly exposed to oil, dispersants, and other harmful chemicals. According to the plaintiff, he was diagnosed with chronic conjunctivitis, chronic sinusitis, dermatitis, eczema, shortness of breath, and dizziness. Summary judgment is warranted when the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. All reasonable inferences are drawn in favor of the nonmoving party, but unsupported allegations or affidavits setting forth ultimate or conclusory facts and conclusions of law are insufficient to either support or defeat a motion for summary judgment. A dispute about a material fact is genuine if the evidence is such that a reasonable factfinder could return a verdict for the nonmoving party. The Plaintiff is a class member who did not opt out of the Settlement Agreement, but he has stated a BELO claim against defendants arising from his alleged exposure to toxic chemicals. To succeed on this claim, he must prove, inter alia, (1) that he was correctly diagnosed with his alleged physical condition after April 16, 2012 and (2) that his LMPC was legally caused by his exposure to harmful substances released as a result of the oil spill. In a toxic torts case, a plaintiff must rely on expert testimony to prove his medical diagnosis and causation.There is no indication that plaintiff has retained an expert to provide testimony at trial related to his medical diagnosis or causation. Nor is there an indication that plaintiff will present expert testimony from a non-retained treating physician. The only evidence before the Court that supports plaintiff's medical diagnosis, or an inference of causation, is a two-page Examination Report from Industrial Medicine Specialists (IMS), dated March 1, 2013. But even if plaintiff were to belatedly designate his examiner from IMS as a nonretained expert, any such testimony would be inadmissible under the Federal Rules of Evidence. The owner of IMS, Dr. Paul Hubbell, testified that IMS was retained after the BP oil spill by a law firm to provide medical examinations of settlement class members. IMS conducted these examinations to determine whether the members had injuries sufficient to permit recovery of compensation benefits directly from BP pursuant to the Settlement Agreement. Dr. Hubbell candidly admitted that the clinicians conducting these examinations did not follow the standards generally accepted in the medical community for establishing medical diagnoses. Dr. Hubbell further admitted that IMS conducted its examinations without information that is critical to proving causation in this lawsuit, such as knowledge of what chemicals plaintiff was exposed to, the toxicological effect of those chemicals, or the degree of his exposure. These admissions render any potential opinion from an IMS clinician on these topics unreliable and inadmissible under Fed. R. Evid. 702. Because plaintiff cannot present competent evidence to prove his medical diagnosis or causation at trial, defendants' motion for summary judgment is granted. A full-text copy of the District Court's February 4, 2019 Order and Reasons is available at https://tinyurl.com/y4acppe7 from Leagle.com. Melvin Banegas, Plaintiff, pro se. BP Exploration & Production, Inc. & BP America Production Company, Defendants, represented by Russell Keith Jarrett, Liskow & Lewis, Charles B. Wilmore -- cbwilmore@liskow.com -- Liskow & Lewis, Devin C. Reid -- dcreid@liskow.com -- Liskow & Lewis, Don Keller Haycraft -- dkhaycraft@liskow.com -- Liskow & Lewis & Patrick B. Reagin, Liskow & Lewis. CALIFORNIA: Court Dismisses Inmate's Pro Se Class Certification Bid ------------------------------------------------------------------- The United States District Court for the Eastern District of California issued an Order dismissing the pro se complaint in the case captioined KENNETH HILL, et al., Plaintiff, v. SCOTT KERNAN, et al., Defendant. No. 2:18-cv-01108-TLN-CKD. (E.D. Cal.). The Plaintiffs, state prisoners proceeding pro se, have filed this civil rights action seeking relief under 42 U.S.C. Section 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. Section 636(b)(1)(B) and Local Rule 302. When determining whether exceptional circumstances exist, a court must consider the likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved. The burden of demonstrating exceptional circumstances is on the plaintiff. Plaintiff Hill has not demonstrated that he has a likelihood of success on the merits, and appointment of counsel is therefore not warranted. To the extent Plaintiff Hill asserts that counsel should be appointed under Federal Rule of Civil Procedure 23(g), as set forth below, he has failed to demonstrate that the motion for class certification should be granted, and so the need for appointment of class counsel is a moot. Plaintiff Hill's request for class certification is also be denied. First, Hill is proceeding pro se and therefore cannot represent the class. More importantly, even if the Court were to assign counsel, Plaintiff has failed to demonstrate that class certification is warranted. Under Federal Rule of Civil Procedure 23, one or more members of a class may sue or be sued as representative parties on behalf of all members only if: (1) the class is so numerous that joinder of all members is impracticable (2) there are questions of law or fact common to the class (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class and(4) the representative parties will fairly and adequately protect the interests of the class. As an initial matter, Plaintiff Hill is the only plaintiff who has signed the motion for class certification. It is therefore unclear whether any of the other plaintiffs agree that this case should proceed as a class action. The lack of any other plaintiffs' signature on the motion to certify the class, and the failure of any plaintiffs other than Plaintiff Hill to object to the finding that the plaintiffs are improperly joined, is sufficient grounds to deny the motion for class certification. However, as addressed below, Plaintiff Hill has also failed to demonstrate compliance with Rule 23. First, Plaintiff Hill has failed to show that the class is so numerous that joinder of all members is impracticable. Though Rule 23 does not impose a minimum number of class members, Plaintiff Hill makes only broad assertions that the Housing Policy in question, AFFECTS ALL General Population inmate/patients housed on E.O.P. Treatment Facilities `STATEWIDE. However, even assuming this fact to be true, Plaintiff Hill has not demonstrated that the policy is unconstitutional on its face, and there is no indication as to how many individuals have actually had their rights violated as a result of the policy. Second, for the same reasons that the magistrate judge found joinder of the plaintiffs was not proper, Plaintiff Hill has failed to show that there are common questions of law or fact. The motion to certify incorporates the complaint in an attempt to address this factor. However, the complaint makes only broad, conclusory allegations of general types of conduct that allegedly violate the Plaintiffs' rights. As noted in the findings and recommendations, based on the allegations in the complaint, each of Plaintiff's claims will require individualized consideration and although the findings and recommendations address this issue in the context of deliberate indifference, the reasoning applies equally to Plaintiff Hill's claims that Defendants have failed to protect the putative class. Third, Plaintiff Hill has not established that the claims or defenses of the representative parties are typical of the claims or defenses of the class. Plaintiff Hill's conclusory assertion that General Population inmate/patients housed on separate facilities have expressed similar concerns relating to the substantial risk of serious harm this Housing Policy exposes them to" is insufficient to demonstrate the necessary typicality. Finally, Plaintiff Hill has failed to show that the named plaintiffs will fairly and adequately protect the interests of the class. To determine whether named plaintiffs will adequately represent a class, courts must resolve two questions: (1) do the named plaintiffs and their counsel have any conflicts of interest with other class members and (2) will the named plaintiffs and their counsel prosecute the action vigorously on behalf of the class? Plaintiffs are not represented by counsel and are therefore not adequate representatives because they do not have authority to represent anyone but themselves. Accordingly, Plaintiff Hill's motions for preliminary injunction are denied. The complaint is dismissed with leave to amend as to the claims regarding Plaintiff Hill, and all plaintiffs except Plaintiff Hill are dismissed without prejudice to bringing their own, individual actions. Putative Plaintiff T'varria Coleman, who attempted to join in the first amended complaint, is also dismissed without prejudice to bringing his own action. A full-text copy of the District Court's February 4, 2019 Order is available at https://tinyurl.com/y5hsxbw4 from Leagle.com. Kenneth Hill, Plaintiff, pro se. CANADA: Sued Over Miscalculation of Veterans' Disability Pensions ----------------------------------------------------------------- Benefits Canada reports that Koskie Minsky LLP launched a class action lawsuit on Jan. 25 on behalf of all veterans who were in receipt of disability pensions or disability awards between 2002 and 2010 from Veteran Affairs Canada. The statement of claim alleges the attorney general, acting through Veteran Affairs Canada, miscalculated the disability pensions and disability awards of veterans during these years. As a result of this error, veterans haven't received the full amount of benefits they're entitled to, as well as interest on those benefits, according to Koskie Minsky. The claim alleges the attorney general breached its fiduciary duties, contractual obligations and was negligent in the administration of disability pensions and disability awards. The lawsuit follows an accounting indexation error by Veterans Affairs Canada, which was uncovered by the office of the veterans ombudsmen in November 2018. The error, which could total around $165 million for the period of 2003 and 2010, when it analyzed the math behind the implementation of a change to the disability award. When examining Veterans Affairs' worksheets, the office of the ombudsman noticed that, for a number of years, the provincial basic tax credit wasn't factored into the calculation of provincial income tax as it was supposed to be, resulting in lower payments for veterans. "When the ombudsman brought this to our attention in 2018, we did a detailed review and worked to secure up to $165 million for those retroactive payments," said Jody Wilson-Raybould, minister of Veterans Affairs, in a statement. "As this is before the courts, I cannot comment any further, however we are committed to ensuring those affected receive the compensation to which they are rightly entitled." [GN] CERTIFIED FOLDER: Court Requires Additional Briefing in Stone ------------------------------------------------------------- The United States District Court for the District of Arizona issued an Order granting in part and denying in part Defendant's Motion to Compel Arbitration in the case captioned Joseph P. Stone, Plaintiff, v. Certified Folder Display Service Incorporated, Defendant. No. CV-17-04205-PHX-JJT. (D. Ariz.). Plaintiff Joseph P. Stone filed a Complaint on behalf of himself and a similarly situated class of employees against Defendant Certified Folder Display Service, Inc. On behalf of a class of employees, Plaintiff alleges that Defendant violated the Fair Labor Standards Act (FLSA) by failing to pay overtime wages. In his individual capacity, Plaintiff claims that Defendant violated A.R.S. Sections 23-350-23-355 (Arizona Wage Statute). The parties' disagreement on whether all of the Plaintiff's claims should proceed to arbitration hinges on a dispute about who can resolve that question. While Defendant believes it is within the Court's power to decide whether the Arbitration Agreement precludes Plaintiff's class claims, Plaintiff argues that the arbitrator must decide whether his class claims survive. The Plaintiff argues that this Court cannot decide whether the Arbitration Agreement allows class arbitration because that agreement provides that any dispute arising from Plaintiff's employment must be decided by an arbitrator including disputes regarding interpretation of whether Plaintiff can bring a claim arising from his employment on a class or collective action basis. In deciding this, the Court will need to determine whether the parties' Arbitration Agreement allows or disallows the collective claims to proceed. But this issue is necessarily tied to the question of what happens to Plaintiff's claims if they do not proceed to arbitration. The parties largely neglected to discuss this issue in their briefing. Defendant addressed it fleetingly in its Motion, but in arguing that Plaintiff waived his class and representation actions, Defendant failed to sufficiently explain how Plaintiff did so by agreeing to the language of the Arbitration Agreement and why that alleged waiver necessitates dismissal by the Court. While a great deal of energy was spent trying to convince the Court that the collective claims may or may not be arbitrated and conflating that issue with the question of who must decide it, neither party provided sufficient support for an argument about the ultimate fate of the claims if they do not proceed to arbitration. Without such briefing, the Court cannot determine the arbitrability of the collective claims. In addition to a lack of sufficient argument on the matter, binding case law relevant to this issue came down at the same time as, or immediately after, the parties submitted their briefs in 2018. Understandably, parties could not timely contemplate the implications of the Supreme Court's decision in Epic Systems Corp. v. Lewis, 138 S.Ct. 1612 (2018). The Court believes that case bears on the ultimate fate of Plaintiff's collective claims because it discusses whether an employer's arbitration agreement may bar collective claims altogether. If Defendant wishes the Court to find that Plaintiff's collective claims may not proceed to arbitration, it must explain what happens to those claims after the Court precludes them from arbitration. And if Plaintiff wishes the Court to find that his collective claims, even if not arbitrable, must not be dismissed, he must explain why case law allows them to proceed in some fashion. The Court will not reach this decision without full briefing and knowledge of the case law. Accordingly, the parties shall each provide a supplemental brief on this issue to the Court. The parties may cite to any other pertinent case law that will assist the Court in deciding both the question of arbitrability and the question of the ultimate fate of Plaintiff's class action claims. On the issue of sanctions, the Court finds that Plaintiff's request is unwarranted. No evidence demonstrates that Defendant refused to stipulate to arbitration in bad faith. Rather, Defendant refused a stipulation because sending all of Plaintiff's claims to arbitration is exactly the outcome Defendant hopes to avoid. Agreeing to Plaintiff's stipulation would have required Defendant to concede an important argument that it had not yet made to the Court. The Court recognizes that this additional dispute has cost (and continues to cost) both parties valuable time and resources but finds that neither party could reasonably have avoided the expense in pursuing the outcome they each seek. The Court finds that it, and not an arbitrator, must determine whether Plaintiff's class action claims may proceed to arbitration under the parties' Arbitration Agreement. Additionally, the Court finds that sanctions against Defendant are inappropriate. Having decided as much, the Court now requires additional briefing on the following issues: (1) Should Plaintiff's class action claims proceed to arbitration along with his individual claims and (2) If Plaintiff's class action claims are not arbitrable, must the Court dismiss them? The Court is therefore denying in part, without prejudice, the Defendant's Motion to Compel Arbitration as to Plaintiff's class action FLSA claims. The Court will maintain jurisdiction over this case in order to decide, after further briefing, whether the Plaintiff's class action claims may proceed to arbitration. A full-text copy of the District Court's February 4, 2019 Order is available at https://tinyurl.com/y6rdsrfd from Leagle.com. Joseph P Stone, on behalf of himself and all those similarly situated, Plaintiff, represented by Patricia Nicole Syverson -- psyverson@bffb.com -- Bonnett Fairbourn Friedman & Balint PC & Ty Derek Frankel -- tfrankel@bffb.com -- Bonnett Fairbourn Friedman & Balint PC. Certified Folder Display Service Incorporated, a California corporation, Defendant, represented by Grant Daniel Waterkotte -- gwaterkotte@pettitkohn.com -- Pettit Kohn Ingrassia Lutz & Dolin PC. CHARLOTTE SCHOOL: Barchiesi Appeals W.D.N.C. Ruling to 4th Cir. --------------------------------------------------------------- Plaintiffs Robert C. Barchiesi, et al., filed an appeal from a Court ruling in their lawsuit titled ROBERT C. BARCHIESI, et al. v. CHARLOTTE SCHOOL OF LAW, LLC, et al., Case No. 3:16-cv-00861-GCM, in the U.S. District Court for the Western District of North Carolina at Charlotte. As reported in the Class Action Reporter on Feb. 4, 2019, Judge Graham C. Mullen granted the parties' motion for final approval of the class action settlement. On Jan. 9, 2018, the District Court heard the motion for final approval of the class action settlement of Settling Plaintiffs Spencer Krebs, Morgan Switzer, Dave Wyatt, Krystal Horsley, Jacenta Marie Price, Markisha Dobson, Raissa Levy, James Villanueva, Shanna Rivera, and Andre McCoy, individually and in their representative capacity on behalf of all others similarly situated, and Leah Ash, individually, and Defendants Charlotte School of Law, LLC ("CSL"), InfiLaw Corp., InfiLaw Holding, Chidi Ogene, Jay Conison, and Don Lively. The Class Members are defined as any person who enrolled in, attended, or paid tuition or fees to CSL between Sept. 1, 2013 and Aug. 15, 2017 The Settling Plaintiffs' Counsel are awarded 15% of the settlement in attorneys' fees plus $35,773.82 in costs. The Representative Plaintiffs and Leah Ash are each awarded $500 as incentive awards. The Claims Administrator will make such payments from the Settlement Fund pursuant to the Settlement Agreement. The appellate case is captioned as Robert Barchiesi, et al. v. Charlotte School of Law, LLC, et al., Case No. 19-1161, in the United States Court of Appeals for the Fourth Circuit.[BN] Plaintiffs-Appellants ROBERT C. BARCHIESI, Individually and in a Representative capacity on behalf of a class of all persons similarly situated, et al., are represented by: Angelique Adams, Esq. Kyle J. Nutt, Esq. Gary K. Shipman, Esq. SHIPMAN & WRIGHT, LLP 575 Military Cutoff Road Wilmington, NC 28405 Telephone: (910) 762-1990 E-mail: aadams@shipmanlaw.com knutt@shipmanlaw.com gshipman@shipmanlaw.com - and - Karl J. Amelchenko, Esq. Steven Dennis Corriveau, Esq. Henry Forest Horne, Jr., Esq. John Alan Jones, Esq. MARTIN & JONES, PLLC 410 Glenwood Avenue Raleigh, NC 27603-0000 Telephone: (919) 821-0005 E-mail: kja@m-j.com sdc@m-j.com hfh@m-j.com jaj@m-j.com Defendants-Appellees CHARLOTTE SCHOOL OF LAW, LLC, INFILAW CORPORATION, INFILAW CORPORATION, JAY CONISON and CHIDI OGENE are represented by: Robert T. Cahill, Esq. COOLEY, LLP 1 Freedom Square Reston Town Center 11951 Freedom Drive Reston, VA 20190-5656 Telephone: (703) 456-8000 Facsimile: (703) 456-8100 E-mail: rcahill@cooley.com - and - Rebecca Claire Fleishman, Esq. Johnny Morgan Loper, Esq. WOMBLE BOND DICKINSON (US) LLP 555 Fayetteville Street Raleigh, NC 27601 Telephone: (919) 755-2116 E-mail: rebecca.fleishman@wbd-us.com Johnny.Loper@wbd-us.com - and - Debbie Weston Harden, Esq. Sarah Motley Stone, Esq. WOMBLE BOND DICKINSON (US) LLP 301 South College Street Charlotte, NC 28202-6037 Telephone: (704) 331-4982 E-mail: Debbie.Harden@wbd-us.com Sarah.Stone@wbd-us.com - and - Michael Hays, Esq. David Edward Mills, Esq. COOLEY, LLP 1299 Pennsylvania Avenue, NW Washington, DC 20004 Telephone: (202) 842-7800 E-mail: mhays@cooley.com dmills@cooley.com Defendants-Appellees STERLING PARTNERS and STERLING CAPITAL PARTNERS IV, LLC, are represented by: Adam Doerr, Esq. Robert Evans Harrington, Esq. ROBINSON BRADSHAW & HINSON, PA 101 North Tryon Street Charlotte, NC 28246 Telephone: (704) 377-8114 E-mail: adoerr@rbh.com rharrington@rbh.com CHECKERS DRIVE-IN: Medgebow Sues Over Illegal SMS Ads ----------------------------------------------------- Joel Medgebow, individually and on behalf of all others similarly situated Plaintiff, v. CHECKERS DRIVE-IN RESTAURANTS INC., Defendant, Case No. 19-cv-80090, (S.D. Fla., January 23, 2019), seeks statutory damages and injunctive relief for violations of the Telephone Consumer Protection Act. Checkers is a fast food chain restaurant that owns and operates two brands, "Checkers" and "Rally's." To promote its services, it engages in unsolicited text messaging using an auto-dialer. Medgebow expressly and clearly revoked his consent to continue receiving text messages on December 5, 2018 by sending an "opt-out" message yet continued to receive such SMS ads. [BN] Plaintiff is represented by: Joshua H. Eggnatz, Esq. Seth M. Lehrman, Esq. EDWARDS POTTINGER, LLC 425 North Andrews Avenue, Suite 2 Fort Lauderdale, FL 33301 Tel: (954) 524-2820 Facsimile: (954) 524-2822 Email: Seth@epllc.com JEggnatz@JusticeEarned.com - and - Michael J. Pascucci, Esq. EGGNATZ | PASCUCCI 5400 S. University Drive, Ste. 417 Davie, FL 33328 Tel: (954) 889-3359 Facsimile: (954) 889-5913 E-mail: MPascucci@JusticeEarned.com CHICAGO, IL: Faces Class Action Over Red-Light Camera Tickets ------------------------------------------------------------- Jonathan Bilyk, writing for Cook County Record, reports that less than a year since Chicago City Hall inked a settlement to end a class action over defective red-light and speeding camera ticket notices sent from 2010-2015, a new class action has landed in Cook County court demanding the city be made to pay out for similar notices delivered to others who got red light camera tickets in earlier years. On Jan. 25, attorneys with the firm of Cafferty Clobes Meriwether & Sprengel LLP, of Chicago and Pennsylvania, filed a complaint in Cook County Circuit Court on behalf of named plaintiff Fred Hampton and a potential class of hundreds of thousands of additional plaintiffs. The lawsuit centers on allegations the city violated its own ordinance in failing to send a second notice of violation to people who were mailed tickets under Chicago's automated traffic enforcement program. The notices were to be mailed to give those receiving tickets sufficient chance to contest them before the city began assessing additional fees and fines for the unpaid tickets. Failure to issue the second notice should render any of those tickets "null and void." "The City . . . issued first notices of violation that misrepresented to Plaintiff and Class members that they had only 14 days to contest a violation or would forfeit their right to do so, contrary to" the city ordinance establishing the automated enforcement program, the lawsuit said. "The City's misconduct likely coerced thousands of Class members to pay a fine they were not yet required to pay." The claims on which Hampton's lawsuit are based substantially mirror those in a 2015 class action filed by attorneys from the firm of Myron M. Cherry & Associates, on behalf of named plaintiff Delyn McKenzie-Lopez and others. Ultimately, the city and the McKenzie-Lopez plaintiffs agreed to settle that lawsuit in February 2018 for $38 million. The settlement provided an average of $58 in refunds for class members. The city paid $11 million to the Cherry & Associates lawyers under the deal. However, the settlement only included those who received automated tickets from 2010-2015. In the new lawsuit, Mr. Hampton's lawyers assert the five-year limit on the claims should not be binding on their new class action at all. They noted the city on multiple occasions, both in Cook County Circuit Court and on appeal, argued the class action claims should be limited by law to the five-year span. Each time, Hampton's lawyers said, those arguments were turned aside by the courts. "Despite having secured certification of a class of all persons to whom the City issued void determinations of liability following the ATL (automated traffic law enforcement) program enactment in 2003 -- and the (Illinois First District Appellate Court) denying the City's petition for leave to appeal that ruling on statute of limitation grounds -- the McKenzie-Lopez plaintiffs perplexingly agreed to settle the action on behalf of only those individuals against whom the City entered an administrative judgment arising from an alleged ATL or ASE violation between (2010-2015)," the complaint said. They asserted this should mean the settlement did nothing to end the claims brought by Hampton and others who received red-light camera and speed camera tickets in Chicago from 2003-2010. The complaint does not estimate how many people might be included in the class action. However, in the McKenzie-Lopez case, plaintiffs estimated nearly 450,000 people received red-light camera tickets from 2010-2015 alone. [GN] COOK COUNTY, IL: McFields' Bid to Certify Class Under Advisement ---------------------------------------------------------------- The Clerk of the U.S. District Court for the Northern District of Illinois made a docket entry on February 13, 2019, in the case entitled Courtney McFields, et al. v. Sheriff of Cook County, et al., Case No. 1:17-cv-07424 (N.D. Ill.), relating to a hearing held before the Honorable John Robert Blakey. The minute entry states that: -- Motion hearing was held on February 13, 2019; -- Plaintiff's motion [85] and [86] are stricken; and -- Plaintiff's motion to certify class [84] is taken under advisement; and -- the Court will issue a ruling and additional case management dates by separate order.[CC] COUNTY JANITORIAL: Cal. App. Affirms Arbitration Denial in Castrej ------------------------------------------------------------------ The Court of Appeals of California, Fourth District, Division Three, issued an Opinion affirming the District Court's Motion to Compel Arbitration in the case captioned MIREYA CASTREJON, Plaintiff and Respondent, v. CCS ORANGE COUNTY JANITORIAL, INC., Defendant and Appellant. No. G055759. (Cal. App.). Castrejon, individually and on behalf of others similarly situated, filed a class action complaint containing claims for (1) failure to pay wages; (2) failure to provide meal periods (3) failure to permit rest breaks (4) failure to provide accurate itemized wage statements (5) failure to pay all wages due upon separation of employment; (6) failure to reimburse necessary business expenses and (7) violation of Business and Professions Code section 17200 et seq. CCS Orange County Janitorial, Inc. (CCS Orange County) filed a motion to compel plaintiff Mireya Castrejon to submit her claims to arbitration based on evidence Castrejon signed a binding arbitration agreement at the commencement of her employment with CCS Orange County. The trial court denied the motion. CCS Orange County contends the court erred by concluding CCS Orange County was not a party to the arbitration agreement and could not enforce that agreement against Castrejon. When a petition to compel arbitration is filed and accompanied by prima facie evidence of a written agreement to arbitrate the controversy, the court itself must determine whether the agreement exists and, if any defense to its enforcement is raised, whether it is enforceable. Because the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by a preponderance of the evidence. CCS Orange County did not argue the applicability of any of these exceptions in the trial court. While the record shows Pacific Building Care, Inc. is the parent company of CCS Orange County, no evidence was produced and no argument was made showing that the relationship between those two separate corporate entities with respect to Castrejon would support the application of an exception. CCS Orange County did not provide evidence or legal authority showing the existence of any agency relationship and/or third party beneficiary relationship between CCS Orange County and its parent corporation much less showing how any such relationship fit into one of the exceptions to the general rule. CCS Orange County similarly failed to argue in the trial court that any exception applied in this case. At oral argument on appeal, CCS Orange County argued Castrejon is equitably estopped from avoiding arbitration as a matter of law. Equitable estoppel, however, is generally a question of fact. CCS Orange County's counsel argued that the facts presented in connection with the motion to compel arbitration were undisputed, thereby making the issue of whether equitable estoppel applied a question of law that this court may address in the first instance. Even if the facts in our record regarding the motion to compel arbitration are undisputed, because CCS Orange County did not argue equitable estoppel below, Castrejon did not have the opportunity to put forth additional evidence in opposition to the equitable estoppel argument. The trial court, in turn, did not have the opportunity to make findings on that issue based on a complete factual record and ultimately rule on the applicability of equitable estoppel in enforcing the arbitration agreement against Castrejon in this case. Consequently, because of CCS Orange County's failure to raise this issue below, we are not in a position to determine the applicability of equitable estoppel in the first instance as a matter of law. Because the Court concludes the trial court properly denied the motion to compel arbitration on the ground CCS Orange County was not a party to the agreement and no exception to the general applied, the Court do not reach Castrejon's other arguments challenging the enforceability of the arbitration agreement. The order is affirmed. A full-text copy of the Court of Appeals' January 31, 2019 Opinion is available at https://tinyurl.com/y9foqy2k from Leagle.com. Lewis Brisbois Bisgaard & Smith, Jeffrey S. Ranen -- ranen@lbbslaw.com -- William C. Sung -- wsung@lbbslaw.com -- and Hillary M. Burrelle -- Hillary.Burrelle@lewisbrisbois.com -- for Defendant and Appellant. Aegis Law Firm, Kashif Haque, Samuel A. Wong, Jessica L. Campbell and Ali S. Carlsen, for Plaintiff and Respondent. D & A SERVICES: Certification of Class Sought in Stoviak Suit ------------------------------------------------------------- Jason Stoviak moves the Court to certify the class described in the complaint of the lawsuit titled JASON STOVIAK, Individually and on Behalf of All Others Similarly Situated v. D & A SERVICES LLC, Case No. 2:19-cv-00240-LA (E.D. Wisc.), and further asks that the Court both stay the motion for class certification and to grant the Plaintiff (and the Defendant) relief from the Local Rules setting automatic briefing schedules and requiring briefs and supporting material to be filed with the Motion. Dicta in the Supreme Court's decision in Campbell-Ewald Co. v. Gomez, left open the possibility that a defendant facing a class action complaint could moot a class representative's case by depositing funds equal to or in excess of the maximum value of the plaintiff's individual claim with the court and having the court enter judgment in the plaintiff's favor prior to the filing of a class certification motion, the Plaintiff asserts, citing Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016). To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion. Damasco v. Clearwire Corp., 662 F.3d 891, 896 (7th Cir. 2011), overruled on other grounds, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015) ("The pendency of that motion [for class certification] protects a putative class from attempts to buy off the named plaintiffs."). While the Seventh Circuit has held that the specific procedure described in Campbell-Ewald cannot force the individual settlement of a class representative's claims, the same decision cautions that other methods may prevent a plaintiff from representing a class, the Plaintiff tells the Court, citing Fulton Dental, LLC v. Bisco, Inc., No. 16-3574, 2017 U.S. App. LEXIS 10839 *9-10 (7th Cir. June 20, 2017). The Plaintiff asserts that one defendant has attempted a similar tactic by sending a certified check to the proposed class representative. Bonin v. CBS Radio, Inc., No. 16-cv-674-CNC (E.D. Wis.); see also Severns v. Eastern Account Systems of Connecticut, Inc., Case No. 15-cv-1168, 2016 U.S. Dist. LEXIS 23164 (E.D. Wis. Feb. 24, 2016). The Plaintiff is obligated to move for class certification to protect the interests of the putative class, the Plaintiff contends. As the Motion to certify a class is a placeholder motion as described in Damasco, the parties and the Court should not be burdened with unnecessary paperwork and the resulting expense when short motion to certify and stay should suffice until an amended motion is filed, the Plaintiff asserts. The Plaintiff also asks to be appointed as class representative, and for the appointment of Ademi & O'Reilly, LLP, as class counsel.[CC] The Plaintiff is represented by: John D. Blythin, Esq. Mark A. Eldridge, Esq. Jesse Fruchter, Esq. Ben J. Slatky, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482-8000 Facsimile: (414) 482-8001 E-mail: jblythin@ademilaw.com meldridge@ademilaw.com jfruchter@ademilaw.com bslatky@ademilaw.com D&D LIFT: Ross Suit Alleges Calif. Labor Code Violations -------------------------------------------------------- Brian Ross, on behalf of himself and others similarly situated v. D&D Lift, LLC. and Does 1 through 50, Case No. UDE-2019-113 (Cal. Super. Ct., San Joaquin Cty., January 3, 2019), is brought against the Defendants for violations of the California Labor Code. The Plaintiff alleges that the Defendants failed to pay minimum wages and failed to pay wages and overtime. The Plaintiff is a resident of California and San Joaquin County and was employed by the Defendants as a non-exempt employee within the State of California based out of the Defendants' facility in Tracy, California and within the County of San Joaquin. The Defendant D&D Lift, LLC is a California limited liability company, with its principal executive offices located in San Joaquin County, California. [BN] The Plaintiff is represented by: David Yeremian, Esq. Natalie Haritoonian, Esq. DAVID YEREMIAN & ASSOCIATS, INC. 535 N. Brand Blvd., Suite 705 Glendale, CA 91203 Tel: (818) 230-8380 Fax: (818) 230-0308 E-mail: david@yeremianlaw.com natalie@yeremianlaw.com DC CONSTRUCTION: Imel Suit Seeks to Enforce Rights Under FLSA ------------------------------------------------------------- MICHAEL IMEL on Behalf of Himself and All Others Similarly Situated v. DC CONSTRUCTION SERVICES, INC. and DUSTIN CALHOUN, Case No. 1:19-cv-00634-TWP-MPB (S.D. Ind., February 12, 2019), is brought to enforce the Plaintiff's rights under the Fair Labor Standards Act. Mr. Imel accuses the Defendants of willfully failing to pay members of the Collective Class the correct overtime wages. He adds that he entered into a contract to get money to purchase a truck from the Defendants. He alleges that the Defendants breached the contract by repossessing the truck despite the fact that the Loan Agreement was not in breach. DC is an incorporated business that operates an office in Indianapolis, Indiana. Mr. Calhoun is an officer, manager or owner of DC. DC is a civil construction company that provides services for earthworks, drainage, pavements, etc.[BN] The Plaintiff is represented by: 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 DECIBELS OF OREGON: Court Narrows Claims in Wilson FLSA Suit ------------------------------------------------------------ The United States District Court for the District of Oregon, Medford Division, issued an Opinion and Order granting in part and denying in part Defendants' Motion for Partial Summary Judgment in the case captioned DANIEL WILSON, Plaintiff, v. DECIBELS OF OREGON, INC.; DENNIS SNYDER; LEO BROWN, Defendants. Civ. No. 1:17-cv-01558-MC. (D. Or.). The Plaintiff sought to join an earlier-filed Fair Labor Standards Act (FLSA) collective action case, Matthew Wilson v. Decibels of Oregon et al., Case No. 1:16-cv-00855-CL (Matthew Wilson case), as an opt-in plaintiff. Plaintiff alleges that he and other similarly situated installation technicians were subjected an unfair and unlawful system of payment while employed by Defendants, which deprived them of wages for time spent working and overtime pay to which they were entitled. As in the Matthew Wilson case, the Plaintiff is pursuing collective action on behalf of similarly situated installation technicians. The Defendants move for summary judgment with respect to the Plaintiff's FLSA collective action claim on the basis that it is partially-time barred. An action brought under the FLSA must be commenced within two years after the cause of action accrues, unless the case involves a willful violation, in which case the limitations period is extended to three years. When the named plaintiff files his consent to join the collective action at some time after the filing of the complaint, the action is deemed to be commenced" on the date when the consent has been filed. In the present case, the Plaintiff filed the original complaint on October 2, 2017, but did not file a written consent until April 5, 2018. The Defendants argue the action did not commence until the Plaintiff filed the written consent and that, as a consequence, the Plaintiff's claims are time-barred to the extent that they seek to reach beyond April 5, 2015. The Plaintiff contends that his claims are not time barred because (1) he has brought an individual action under the FLSA, rather than a collective action (2) a collective action is not instituted under the FLSA until the plaintiff either seeks to conditionally certify a class or an unnamed plaintiff files a consent to join in the action and (3) the statute of limitations has been tolled from the date on which Plaintiff unsuccessfully attempted to join in the earlier Matthew Wilson case. This is a dual capacity action The Plaintiff asserts that he has not filed a collective action case and, instead, seeks to vindicate his individual rights under the FLSA. As an individual action, Plaintiff's claims would not be subject to the written consent requirements of Section 256 and his claim would be deemed to have commenced on the date of the original complaint. In this case, the FAC explicitly identifies itself as a collective action, notwithstanding Plaintiff's arguments in response to the present motion. The opening paragraph of the FAC alleges that Plaintiff is used interchangeably with technicians as all Installation Technicians were subjected to the same pattern, practice, and policy of not counting all hours worked each date toward the total hours worked each week. There are numerous references to similarly situated employees and the FAC frequently, albeit inconsistently, refers to plaintiffs in the plural. The FAC repeatedly expresses Plaintiff's intention to represent the interests of other unnamed plaintiffs and to seek recovery on their behalf. For example, in an unnumbered line of the FAC between, the FAC alleges Plaintiffs seek to represent all employees collectively. This unambiguous statement is in bold and all capital letters. The phrase Plaintiff on his own behalf and the class he seeks to represent, is also used repeatedly. Although the collective action allegations in this case clearly predominate over the scattered references to an individual action, the Court is satisfied that Plaintiff has sufficiently put Defendants on notice that he intends to pursue his individual rights in addition to the collective action claim. The Court concludes, therefore, that while Plaintiff's collective action claims did not accrue until April 5, 2018, his individual claims accrued on the date of his original complaint. Commencement of a collective action Plaintiff argues that he has not initiated a collective action because he has not sought to certify a class, nor have any unnamed plaintiffs sought to join in the putative collective action class. As such, Plaintiff argues, he is not subject to the written consent requirements of an FLSA collective action. In support of this position, Plaintiff relies on the Fifth Circuit's decision in Allen v. Atl. Richfield Co., 724 F.2d 1131 (5th Cir. 1984). In Allen, the Fifth Circuit rejected the notion that an action involving multiple named plaintiffs was a collective action, despite the fact that the plaintiffs sought to represent themselves and other similarly situated employees. The Fifth Circuit concluded that the action never evolved into a collective or class action since no unnamed plaintiff ever came forward and filed a written consent to suit, asking to be made a party plaintiff. Consistent with the plain language of Section 256, a collective action under the FLSA commences when the there is both a complaint and a written consent, without regard to whether any unnamed plaintiff has opted into the suit, or whether the named plaintiff has affirmatively sought to certify the putative class. Applied to the facts of this case, Plaintiff's collective action commenced when he filed his written consent on April 5, 2018. Tolling Plaintiff argues that the statute of limitations has been tolled from the date of his consent to join the Matthew Wilson case through the entry of final judgment in that case. Plaintiff offers no case law or other support for this position. To the extent that Plaintiff seeks to toll the statute of limitations by invoking the savings provision of ORS 12.220, that argument is unavailing. As Judge Brown recently noted, federal courts borrow state statutes of limitation and savings provisions in the absence of a federal statute of limitations. When the federal statute provides an appropriate statute of limitations, however, federal courts do not apply state savings statutes. Congress explicitly put a limit upon the time for enforcing a right which it created, there is an end of the matter. The Congressional statute of limitation is definitive. In the present case, § 256 imposes a clear limitations period and the application of ORS 12.220 is therefore inappropriate. Accordingly, the Court concludes that this action was not tolled by the filing of Plaintiff's written consent in the earlier Matthew Wilson action. Plaintiff does not appear to seek an equitable tolling of the statute of limitations and so the Court does not address that issue, other than to note that nothing prevented Plaintiff from filing his written consent at the same time as the original complaint in this action. Accordingly, the Defendants' Partial Motion for Summary Judgment is granted in part and denied in part. A full-text copy of the District Court's January 31, 2019 Order is available at https://tinyurl.com/yayn2fzs from Leagle.com. Daniel Wilson, Plaintiff, represented by Quinn E. Kuranz, The Office of Q.E. Kuranz Attorney at Law, LLC. Decibels of Oregon, Inc., Dennis Snyder & Leo Brown, Defendants, represented by John Baird Dudrey -- john.dudrey@stoel.com -- Stoel Rives LLP, Karen L. O'Connor -- karen.oconnor@stoel.com -- Stoel Rives LLP & Caroline J. Livett -- caroline.livett@stoel.com -- Stoel Rives LLP. DECIBELS OF OREGON: Court Narrows FLSA Claims in Hemming -------------------------------------------------------- The United States District Court for the District of Oregon, Medford Division, issued an Opinion and Order granting in part and denying in part Defendants' Motion for Partial Summary Judgment in the case captioned RYAN HEMMING, Plaintiff, v. DECIBELS OF OREGON, INC.; DENNIS SNYDER; LEO BROWN, Defendants. Civ. No. 1:17-cv-01624-MC. (D. Or.). The Plaintiff sought to join an earlier-filed Fair Labor Standards Act (FLSA) collective action case, Matthew Wilson v. Decibels of Oregon et al., Case No. 1:16-cv-00855-CL (Matthew Wilson case), as an opt-in plaintiff. The Plaintiff alleges that he and other similarly situated installation technicians were subjected an unfair and unlawful system of payment while employed by the Defendants, which deprived them of wages for time spent working and overtime pay to which they were entitled. As in the Matthew Wilson case, the Plaintiff is pursuing collective action on behalf of similarly situated installation technicians. The Defendants move for summary judgment with respect to the Plaintiff's FLSA collective action claim on the basis that it is partially-time barred. An action brought under the FLSA must be commenced within two years after the cause of action accrues, unless the case involves a willful violation, in which case the limitations period is extended to three years. When the named plaintiff files his consent to join the collective action at some time after the filing of the complaint, the action is deemed to be commenced" on the date when the consent has been filed. In the present case, the Plaintiff filed the original complaint on October 2, 2017, but did not file a written consent until April 5, 2018. The Defendants argue the action did not commence until the Plaintiff filed the written consent and that, as a consequence, the Plaintiff's claims are time-barred to the extent that they seek to reach beyond April 5, 2015. The Plaintiff contends that his claims are not time barred because (1) he has brought an individual action under the FLSA, rather than a collective action (2) a collective action is not instituted under the FLSA until the plaintiff either seeks to conditionally certify a class or an unnamed plaintiff files a consent to join in the action and (3) the statute of limitations has been tolled from the date on which Plaintiff unsuccessfully attempted to join in the earlier Matthew Wilson case. This is a dual capacity action The Plaintiff asserts that he has not filed a collective action case and, instead, seeks to vindicate his individual rights under the FLSA. As an individual action, Plaintiff's claims would not be subject to the written consent requirements of Section 256 and his claim would be deemed to have commenced on the date of the original complaint. In this case, the FAC explicitly identifies itself as a collective action, notwithstanding the Plaintiff's arguments in response to the present motion. The opening paragraph of the FAC alleges that Plaintiff is used interchangeably with technicians as all Installation Technicians were subjected to the same pattern, practice, and policy of not counting all hours worked each date toward the total hours worked each week. There are numerous references to similarly situated employees and the FAC frequently, albeit inconsistently, refers to plaintiffs in the plural. The FAC repeatedly expresses Plaintiff's intention to represent the interests of other unnamed plaintiffs and to seek recovery on their behalf. For example, in an unnumbered line of the FAC between, the FAC alleges Plaintiffs seek to represent all employees collectively. This unambiguous statement is in bold and all capital letters. The phrase Plaintiff on his own behalf and the class he seeks to represent, is also used repeatedly. Although the collective action allegations in this case clearly predominate over the scattered references to an individual action, the Court is satisfied that Plaintiff has sufficiently put Defendants on notice that he intends to pursue his individual rights in addition to the collective action claim. The Court concludes, therefore, that while Plaintiff's collective action claims did not accrue until April 5, 2018, his individual claims accrued on the date of his original complaint. Commencement of a collective action The Plaintiff argues that he has not initiated a collective action because he has not sought to certify a class, nor have any unnamed plaintiffs sought to join in the putative collective action class. As such, Plaintiff argues, he is not subject to the written consent requirements of an FLSA collective action. In support of this position, Plaintiff relies on the Fifth Circuit's decision in Allen v. Atl. Richfield Co., 724 F.2d 1131 (5th Cir. 1984). In Allen, the Fifth Circuit rejected the notion that an action involving multiple named plaintiffs was a collective action, despite the fact that the plaintiffs sought to represent themselves and other similarly situated employees. The Fifth Circuit concluded that the action never evolved into a collective or class action since no unnamed plaintiff ever came forward and filed a written consent to suit, asking to be made a party plaintiff. Consistent with the plain language of Section 256, a collective action under the FLSA commences when the there is both a complaint and a written consent, without regard to whether any unnamed plaintiff has opted into the suit, or whether the named plaintiff has affirmatively sought to certify the putative class. Applied to the facts of this case, Plaintiff's collective action commenced when he filed his written consent on April 5, 2018. Tolling The Plaintiff argues that the statute of limitations has been tolled from the date of his consent to join the Matthew Wilson case through the entry of final judgment in that case. The Plaintiff offers no case law or other support for this position. To the extent that the Plaintiff seeks to toll the statute of limitations by invoking the savings provision of ORS 12.220, that argument is unavailing. As Judge Brown recently noted, federal courts borrow state statutes of limitation and savings provisions in the absence of a federal statute of limitations. When the federal statute provides an appropriate statute of limitations, however, federal courts do not apply state savings statutes. Congress explicitly put a limit upon the time for enforcing a right which it created, there is an end of the matter. The Congressional statute of limitation is definitive. In the present case, § 256 imposes a clear limitations period and the application of ORS 12.220 is therefore inappropriate. Accordingly, the Court concludes that this action was not tolled by the filing of Plaintiff's written consent in the earlier Matthew Wilson action. The Plaintiff does not appear to seek an equitable tolling of the statute of limitations and so the Court does not address that issue, other than to note that nothing prevented Plaintiff from filing his written consent at the same time as the original complaint in this action. A full-text copy of the District Court's January 31, 2019 Opinion and Order is available at https://tinyurl.com/yayn2fzs from Leagle.com. Daniel Wilson, Plaintiff, represented by Quinn E. Kuranz, The Office of Q.E. Kuranz Attorney at Law, LLC. Decibels of Oregon, Inc., Dennis Snyder & Leo Brown, Defendants, represented by John Baird Dudrey -- john.dudrey@stoel.com -- Stoel Rives LLP, Karen L. O'Connor -- karen.oconnor@stoel.com -- Stoel Rives LLP & Caroline J. Livett -- caroline.livett@stoel.com -- Stoel Rives LLP. DIRECT FLOW: Court Orders Supplemental Brief on Reynolds Suit Deal ------------------------------------------------------------------ In the case, J. JASON REYNOLDS, Plaintiff, v. DIRECT FLOW MEDICAL, INC., et al., Defendants, Case No. 17-cv-00204-KAW (N.D. Cal.), Magistrate Judge Kandis A. Westmore of the U.S. District Court for the Northern District of California ordered the Plaintiff to provide a supplemental brief regarding his motion for preliminary approval of settlement. The Plaintiff asserts that in November 2016, Defendant Direct Flow Medical shut down its operations and terminated almost its entire work force. He alleges that in doing so, the Defendant failed to provide its former employees with 60 days' notice of the termination in violation of the WARN Act, failed to reimburse terminated employees for previously incurred work-related expenses, failed to compensate terminated employees for paid time off ("PTO") accrued but not used at the time of their termination, and failed to compensate terminated employees for promised but deferred pay raises. The Plaintiff also brings a California Private Attorneys General Act ("PAGA") claim. The proposed settlement is for $911,500, in addition to costs for settlement administration. Once the attorney's fees ($227,875), costs (currently estimated at $21,681.15), incentive award ($12,500), and PAGA penalty ($10,254) are excluded, the net settlement fund is estimated to be $639,189.85. The Plaintiff estimates the maximum liability in the class to be $7,255,500 (excluding civil penalties under PAGA). Thus, the $911,500 settlement amount is 12.6% of the full verdict value, and the $639,189.85 net settlement amount is 8.8% of the full verdict value. Magistrate Westmore required additional information as to the proposed discount, particularly the risk regarding the liability of the individual Defendants. While the Plaintiff asserts that the liability of the individual Defendants is not certain under California Labor Code Section 558.1 and alter ego liability, he provides no authority to allow the Court to determine the extent of those risks. Thus, the Plaintiff must fully explain the risks of demonstrating liability as to the individual Defendants, citing to specific case law and facts, and why these risks warrant the proposed discount. As to the calculation of settlement share, the Magistrate required further explanation on why the 20/80 ratio for Portions 1 and 2 was chosen. A class member's share of the settlement is calculated as two "Portions." First, the settlement administrator calculates each class member's "Annualized Compensation Ratio" by dividing the individual class member's annual compensation by the total annual compensation of all class members. The settlement administrator will then multiply the class member's "Annualized Compensation Ratio" by a figure representing 20% of the net settlement amount to obtain "Portion 1" of the class member's settlement payment. Second, the settlement administrator adds: (1) the dollar value of the individual class member's PTO that the class member accrued but had not used as of Nov. 30, 2016, (2) the amount of unreimbursed work expenses the class member incurred as of Nov. 30, 2016, and (3) the amount of compensation the class member would have received as of Nov. 30, 2016 from approved but deferred pay expenses that the class member had not received. The settlement administrator then divides this figure by the sum of these three figures for all the class members to obtain the individual class member's "Unpaid Compensation & Expenses Ratio." The class member's "Unpaid Compensation & Expenses Ratio" is then multiplied by a figure representing 80% of the net settlement amount to obtain "Portion 2" of the class member's settlement payment. If the class member has no unpaid PTO, unreimbursed expenses, or a deferred raise, the class member's Portion 2 will be zero. The Magistrate required information on the value of the PAGA claim. She required that the Plaintiff addresses whether he submitted a copy of the settlement to the Labor and Workforce Development Agency ("LWDA"), and whether he has received any comments from the LWDA. If the LWDA has provided any comments, the comments should be attached as an exhibit to the supplemental brief. Next, the Settlement Agreement provides that if the total amount of the cashed settlement checks exceeds 90% of the net settle fund but is less than 100%, the remainder will be put in a cy pres fund. Per the Procedural Guidance, the Magistrate holds that the parties should identify their chosen cy pres recipients and explain how those recipients are related to the subject matter of the lawsuit and the class members. The Settlement Agreement proposes an incentive payment of $12,500 to Plaintiff Reynolds. The Magistrate required additional briefing on whether the work performed by the Plaintiff warrants the requested incentive awards, including the amount of time and work he has put into the case. She also ordered that the Plaintiff will clarify whether the class members who only receive notice by mail will also receive an estimate of the settlement payment the class member will receive. The parties should address whether CAFA notice is required and if so, when it will be given. The Class Notice does not appear to identify the PAGA award, which will come out of the $911,500 settlement amount. The Magistrate required the Plaintiff to indicate whether he intends to correct this. The Class Notice states that checks will be mailed 10 days after final approval. The Settlement Agreement, however, provides that checks will be mailed within 30 days of the final approval. She required the Plaintiff to explain the discrepancy. Finally, the Class Notice states that class members who do not file a written objection must ask for permission to speak at the final approval hearing. It is not clear why permission is required. The Plaintiff will explain why permission is required, and identify other cases that have required that permission be granted. Additionally, there appear to be a number of typos in this section that should be corrected. The supplemental brief will be filed no later than Feb. 20, 2019. A full-text copy of the Court's Feb. 5, 2019 Order is available at https://is.gd/bUUhYg from Leagle.com. J. Jason Reynolds, on behalf of himself and all others similarly situated, Plaintiff, represented by Steven M. Tindall -- smt@classlawgroup.com -- Gibbs Law Group LLP, Caroline Camille Corbitt -- scc@classlawgroup.com -- GIBBS LAW GROUP LLP & John H. Douglas -- jdouglas@douglaslegal.com -- Douglas Law Offices. Direct Flow Medical, Inc., Dan Lemaitre, John David Boyle, Gordon Bishop, Paul LaViolette & Yuval Binur, Defendants, represented by Allan J. Gomes -- agomes@andgolaw.com -- Anderies & Gomes LLP. DUPLIN COUNTY, NC: Court Quashes Subpoena in FCRA Suit ------------------------------------------------------ The United States District Court for the Eastern District of North Carolina, Southern Division, issued an Order granting Plaintiffs' Motion to Quash Subpoena in the case captioned RYAN LANG, on behalf of himself and all others similarly situated, Plaintiff, v. DUPLIN COUNTY, Defendant. No. 7:18-CV-77-BO. (W.D.N.C.). In this putative class action under the Fair Credit Reporting Act (FCRA), the Plaintiffs allege that the Defendant, an owner of residential rental properties, failed to give the Plaintiffs proper FCRA disclosures that it took adverse action against them based on credit reports. After discovery closed, the Defendant issued a Subpoena Duces Tecum to one of the Plaintiffs' prior landlords, TLC Properties, demanding production of the Plaintiffs' tenant files. The Plaintiffs seek to quash the subpoena as out of time, citing Dziadek v. Charter Oak Fire Ins. Co., No. 4:11-CV-04134-RAL, 2016 WL 1643825 (D.S.D. Apr. 22, 2016). The Defendant argues that the subpoena is proper because the documents go only to impeaching the Plaintiffs' testimony about whether they owe anything to their prior landlord, citing Joseph P. Carroll Ltd. v. Baker, No. 09 CIV. 3174 SHS, 2012 WL 1232957 (S.D.N.Y. Apr. 12, 2012), and Malmberg v. United States, No. 506-CV-1042 FJS/GHL, 2010 WL 1186573 (N.D.N.Y. Mar. 24, 2010). In the alternative, the Defendant claims it has good cause under Rule 16(b) of the Federal Rules of Civil Procedure for relief from the scheduling order's discovery deadline because, after discovery closed, Plaintiffs submitted summary judgment affidavits that conflict with their deposition testimony. The Defendant is incorrect that the subpoena is proper just because it claims the documents go only to impeachment. When the party issuing the belated subpoena could have obtained the requested documents during discovery, courts will quash the subpoena as untimely notwithstanding the party's contention that the documents are for impeachment. The Defendants also have not shown good cause for relief from the discovery deadline. The primary measure of good cause is the movant's diligence in attempting to meet the order's requirements. The Plaintiffs testified during their depositions that they either believed they did not owe anything to TLC or did not know whether they did. In the Plaintiffs' summary judgment affidavits, they testified that their credit reports listed false debts to TLC, which they would have corrected if the Defendant had given them the proper FCRA disclosures. The Defendant claims this is an inconsistency in testimony that did not arise until after discovery closed, so it did not have a reason to seek the tenant files until then. The Court disagrees. The Plaintiffs' deposition testimony about whether they owed debts to TLC was equivocal at best, and it certainly should not have led the Defendant to believe that the Plaintiffs were conceding that they owed debts to TLC. Moreover, the Defendant fails to explain how it will use the tenant files for impeachment. A full-text copy of the District Court's February 4, 2019 Order is available at https://tinyurl.com/y4rmsj7m from Leagle.com. Ryan A Lang, Plaintiff, represented by Charlotte Smith, The Law Offices of Gilda A. Hernandez, PLLC, Emma J. Smiley, The Law Office of Gilda A. Hernandez, PLLC & Gilda A. Hernandez, The Law Offices of Gilda A. Hernandez, PLLC. Duplin County, Defendant, represented by Norwood P. Blanchard, III -- norwood@cmclawfirm.com -- Crossley McIntosh Collier Hanley & Edes, PLLC & Wendy Lynne Sivori, Duplin County Legal Department. EB SERVICES INC: De La Cruz Files Suit Over Unpaid Overtime ----------------------------------------------------------- Juan De La Cruz, and other similarly-situated individuals, Plaintiff(s), v. EB Services, Inc. and Eduardo Bedoya, individually, Defendants, Case No. 19-cv-80097, (S.D. Fla., January 24, 2019), seeks to recover regular wages, overtime compensation, retaliatory damages, liquidated damages, costs and reasonable attorney's fees under the provisions of, and pursuant to the Fair Labor Standards Act. EB Services is a construction company specializing in complete remodeling of residential properties and general construction work where De La Cruz worked as a driver and construction laborer. He worked a minimum of 10 hours daily and was unable to take bona fide lunch breaks. He was fired for his complaints about overtime and unpaid wages. [BN] Plaintiff is represented by: Zandro E. Palma, Esq. ZANDRO E. PALMA, P.A. 9100 S. Dadeland Blvd., Suite 1500 Miami, FL 33156 Telephone: (305) 446-1500 Facsimile: (305) 446-1502 Email: zep@thepalmalawgroup.com EGS FINANCIAL: Certification of Class Sought in Cheek Suit ---------------------------------------------------------- Donna Cheek moves the Court to certify the class described in the complaint of the lawsuit styled DONNA CHEEK, Individually and on Behalf of All Others Similarly Situated v. EGS FINANCIAL CARE INC., Case No. 2:19-cv-00239-LA (E.D. Wisc.), and further asks that the Court both stay the motion for class certification and to grant the Plaintiff (and the Defendant) relief from the Local Rules setting automatic briefing schedules and requiring briefs and supporting material to be filed with the Motion. Dicta in the Supreme Court's decision in Campbell-Ewald Co. v. Gomez, left open the possibility that a defendant facing a class action complaint could moot a class representative's case by depositing funds equal to or in excess of the maximum value of the plaintiff's individual claim with the court and having the court enter judgment in the plaintiff's favor prior to the filing of a class certification motion, the Plaintiff asserts, citing Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016). To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion. Damasco v. Clearwire Corp., 662 F.3d 891, 896 (7th Cir. 2011), overruled on other grounds, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015) ("The pendency of that motion [for class certification] protects a putative class from attempts to buy off the named plaintiffs."). While the Seventh Circuit has held that the specific procedure described in Campbell-Ewald cannot force the individual settlement of a class representative's claims, the same decision cautions that other methods may prevent a plaintiff from representing a class, the Plaintiff tells the Court, citing Fulton Dental, LLC v. Bisco, Inc., No. 16-3574, 2017 U.S. App. LEXIS 10839 *9-10 (7th Cir. June 20, 2017). The Plaintiff asserts that one defendant has attempted a similar tactic by sending a certified check to the proposed class representative. Bonin v. CBS Radio, Inc., No. 16-cv-674-CNC (E.D. Wis.); see also Severns v. Eastern Account Systems of Connecticut, Inc., Case No. 15-cv-1168, 2016 U.S. Dist. LEXIS 23164 (E.D. Wis. Feb. 24, 2016). The Plaintiff is obligated to move for class certification to protect the interests of the putative class, the Plaintiff contends. As the Motion to certify a class is a placeholder motion as described in Damasco, the parties and the Court should not be burdened with unnecessary paperwork and the resulting expense when short motion to certify and stay should suffice until an amended motion is filed, the Plaintiff avers. The Plaintiff also asks to be appointed as class representative, and for the appointment of Ademi & O'Reilly, LLP, as class counsel.[CC] The Plaintiff is represented by: John D. Blythin, Esq. Mark A. Eldridge, Esq. Jesse Fruchter, Esq. Ben J. Slatky, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482-8000 Facsimile: (414) 482-8001 E-mail: jblythin@ademilaw.com meldridge@ademilaw.com jfruchter@ademilaw.com bslatky@ademilaw.com FBCS INC: Hayes Disputes Time-barred Collection Letter ------------------------------------------------------ Jeremy Hayes, individually, and on behalf of a class of similarly situated persons, Plaintiffs, v. Financial Business and Consumer Solutions, Inc. (d/b/a FBCS, Inc.), Defendant, Case No. 19-cv-00062 (W.D. Ky., January 23, 2019), seeks actual and statutory damages for violation of the Consumer Credit Protection Credit Act. On or about January 23, 2018, FBCS, sent a letter to Hayes via mail where it sought to collect an alleged debt in the amount of $1,425.49 allegedly owed to Verizon Wireless. Said debt was time barred at the time the letter was mailed yet Defendant made a settlement offer splitting the settlement into 3 payments and offered a "50% discount" on the outstanding balance," an arrangement that was not authorized by agreement. [BN] Plaintiff is represented by: Zachary L. Taylor, Esq. Nina B. Couch, Esq. TAYLOR COUCH PLLC 2815 Taylorsville Road, Suite 101 Louisville, KY 40205 Tel: (502) 625-5000 Email: ztaylor@taylorcouchlaw.com ncouch@taylorcouchlaw.com GATE GOURMET: Removes Garcia FLSA Class Suit to C.D. California --------------------------------------------------------------- SHIRLEY GARCIA, an individual, on her own behalf and on behalf of all others similarly situated v. GATE GOURMET, INC., a Delaware corporation; and DOES 1-100, inclusive, Case No. 19STCV02518, was removed on February 12, 2019, from the Superior Court of the State of California for the County of Los Angeles to the U.S. District Court for the Central District of California. The District Court Clerk assigned Case No. 2:19-cv-01075 to the proceeding. On January 9, 2019, Plaintiff Shirley Garcia filed a civil action in the Superior Court. She alleges 11 causes of action on behalf of herself and other allegedly similarly situated employees, including (1) failure to pay all wages owed; (2) failure to pay overtime compensation (Welfare Commission Orders and California Labor Code); (3) missed meal and rest breaks; (4) failure to pay compensation at the time of termination; (5) failure to provide proper wage statement; and (6) failure to pay all wages and overtime compensation, in violation of the Fair Labor Standards Act.[BN] The Plaintiff is represented by: Marcus J. Bradley, Esq. Kiley Lynn Grombacher, Esq. Taylor L. Emerson, Esq. BRADLEY/GROMBACHER, LLP 2815 Townsgate Road, Suite 130 Westlake Village, CA 91361 Telephone: (805) 270-7100 Facsimile: (805) 270-7589 E-mail: mbradley@bradleygrombacher.com kgrombacher@bradleygrombacher.com temerson@bradleygrombacher.com - and - Sahag Majarian II, Esq. THE LAW OFFICES OF SAHAG MAJARIAN II 18250 Ventura Boulevard Tarzana, CA 91356 Telephone: (818) 609-0807 Facsimile: (818) 609-0892 E-mail: sahagii@aol.com Defendant GATE GOURMET, INC., is represented by: Diana Tabacopoulos, Esq. David D. Jacobson, Esq. SEYFARTH SHAW LLP 2029 Century Park East, Suite 3500 Los Angeles, CA 90067-3021 Telephone: (310) 277-7200 Facsimile: (310) 201-5219 E-mail: dtabacopoulos@seyfarth.com djacobson@seyfarth.com - and - Michael W. Kopp, Esq. SEYFARTH SHAW LLP 400 Capitol Mall, Suite 2350 Sacramento, CA 95814-4428 Telephone: (916) 448-0159 Facsimile: (916) 558-4839 E-mail: mkopp@seyfarth.com - and - Rod M. Fliegel, Esq. Alison S. Hightower, Esq. LITTLER MENDELSON, P.C. 333 Bush Street, 34th Floor San Francisco, CA 94104 Telephone: (415) 433-1940 Facsimile: (415) 399-8490 E-mail: rfliegel@littler.com ahightower@littler.com GEORGIA: Court Denies Inmate's Pro Se Class Certification Bid ------------------------------------------------------------- The United States District Court for the Southern District of Georgia, Statesboro Division, issued an Order denying Plaintiff's Motion for Class Certification in the case captioned STEPHEN RAY HOKE, Plaintiff, v. MR. LYTE, et al., Defendants. Civil Action No. 6:16-cv-45. (S.D. Ga.). The Plaintiff filed his initial 42 U.S.C. Section 1983 Complaint on April 21, 2016, naming five Defendants: Nathan Deal; Homer Bryson; Valient Lyte; Stanley Williams; and Tiffany Henry. The Plaintiff claimed the named Defendants violated his rights under the Religious Land Use and Institutionalized Persons Act (RLUIPA), by preventing his religious mail from coming into the prison. The Plaintiff, who is proceeding pro se, asserts there are more than 200 Christian inmates at Georgia State Prison; thus, they all have the same claims as he has asserted against the Defendants. The Plaintiff contends these claims should not be hard to prove based on the facts he sets forth in his Amended Complaint, and the Defendants brag about sending religious mail back without notice. It is plain error to permit an imprisoned litigant who is unassisted by counsel to represent his fellow inmates in a class action. Simply put, incarcerated pro se litigants may not bring a class action on behalf of other prisoners. Even if the Plaintiff met the Rule 23 requirements necessary for class certification, he cannot litigate the interests of other prisoner-litigants. Accordingly, Magistrate Judge Benjamin W. Cheesbro recommends the Court deny the Plaintiff's Motion for Class Certification. A full-text copy of the District Court's February 4, 2019 Order is available at https://tinyurl.com/y5e3nccs from Leagle.com. Stephen Ray Hoke, Plaintiff, pro se. Mr. Lyle, Chaplain, Ex Warden Stanley Williams, Inidividual and Official Capacity & Officer Tiffany Henry, Inidividual and Official Capacity, Defendants, represented by Amy L. Macrina, Georgia Department of Law & David S. Grossman, Georgia Department of Law. Chaplain Valient Lyte, Individual and Official Capacity, Defendant, represented by Amy L. Macrina, Georgia Department of Law. GRACE AND LACE: Kiler Asserts Breach under Disabilities Act ----------------------------------------------------------- Grace and Lace, LLC is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled Marion Kiler, individually and as the representative of a class of similarly situated persons, Plaintiff v. Grace and Lace, LLC, Defendant, Case No. 1:19-cv-00928 (E.D. N.Y., February 15, 2019). Grace and Lace, LLC designs and manufactures boot socks and other accessories for women and girls. It also offers leg warmers, boot cuffs, scarves, arm warmers, and apparel. The company was founded in 2011 and is based in Cedar Park, Texas.[BN] The Plaintiff is represented by: Dan Shaked, Esq. Shaked Law Group, P.C. 44 Court Street, Suite 1217 Brooklyn, NY 11217 Tel: (917) 373-9128 Fax: (718) 504-7555 Email: shakedlawgroup@gmail.com H&M HENNES: Faces Haggar Class Suit Alleging ADA Violations ----------------------------------------------------------- ELIA HAGGAR; KYO HAK CHU; VALERIE BROOKS, individually and on behalf of themselves and all others similarly situated v. H&M HENNES & MAURITZ GBC AB, LLC; and DOES 1 to 10, inclusive, Case No. 2:19-cv-01070-AB-KS (C.D. Cal., February 13, 2019), alleges violations of the Americans with Disabilities Act. H&M Hennes & Mauritz GBC AB manufactures and distributes apparel. The Company offers clothing for men, women, and kids, as well as other accessories and home products. The Company markets its products to customers worldwide. The true names and capacities of the Doe Defendants are currently unknown to the Plaintiff.[BN] The Plaintiffs are represented by: Thiago Coelho, Esq. Bobby Saadian, Esq. WILSHIRE LAW FIRM 3055 Wilshire Blvd., 12th Floor Los Angeles, CA 90010 Telephone: (213) 381-9988 Facsimile: (213) 381-9989 E-mail: thiago@wilshirelawfirm.com bobby@wilshirelawfirm.com HEARTLAND AUTOMOTIVE: Johnson Sues Over Unpaid Overtime Wages ------------------------------------------------------------- Chresha Johnson, on behalf of herself and all others similarly Situated, Plaintiff, v. Heartland Automotive Services, Inc. and Team Car Care, LLC, Defendant, Case No. 1:19-cv-00122 (W.D. Tex., February 18, 2019) is brought under the Fair Labor Standards Act. Defendants have failed and refused to pay their hourly employees at time-and-one-half their regular rates of pay for all hours worked in excess of forty hours within a workweek by purposefully and intentionally eliminating the hours worked by these employees during their lunch periods, even though their employees consistently worked through their lunch periods, says the complaint. Plaintiff Chresha Johnson was employed by Defendants from November 2017 to the present as a lube specialist, who resides in Austin, Texas. Defendants are a foreign corporation and a foreign limited liability company that are currently authorized to do business in Texas, and that is doing business in Texas.[BN] The Plaintiff is represented by: Douglas B. Welmaker, Esq. MORELAND VERRETT, P.C. The Commissioners House at Heritage Square 2901 Bee Cave Road, Box L Austin, TX 78746 Phone: (512) 782-0567 Fax: (512) 782-0605 Email: doug@morelandlaw.com HOME HEALTH RESOURCES: Mathis Suit to Recover Overtime Pay ---------------------------------------------------------- Jennifer Mathis, individually and on behalf of all similarly situated employees Plaintiff, v. Home Health Resources, Inc., Defendant, Case No. 18-cv-00256 (S.D. Tex., January 23, 2019), seeks to recover overtime wages owed, liquidated damages, reasonable and necessary attorneys' fees, costs, expert fees, mediator fees, and out-of-pocket expenses under the Fair Labor Standards Act. Home Health Resources is in the business of providing home healthcare services where Mathis worked as a nurse, going to patient's homes and assisted living facilities to provide medical assistance. She worked from August 2016 to February 2018. Plaintiff worked between 60–80 hours a week almost every week without receiving time-and-a-half for each hour that exceeded 40 per week. [BN] Plaintiff is represented by: Dennis A. Clifford, Esq. THE CLIFFORD LAW FIRM, PLLC 712 Main Street, Suite 900 Houston, TX 77002 Tel: (713) 999-1833 Fax: (866) 232-0999 Email: dennis@cliffordemploymentlaw.com HYDRO ONE: Aird Attorney Discusses Class Action Dismissal --------------------------------------------------------- David Stevens, Esq. -- dstevens@airdberlis.com -- of Aird & Berlis LLP, in an article for Mondaq, reports that on December 31, 2018, the Ontario Divisional Court dismissed an appeal of a November 2017 Decision denying certification of a class action against Hydro One Networks Inc. (Hydro One). The proposed class action relates to alleged overcharges resulting from the rollout of a new customer information system (CIS) starting in 2013. The Divisional Court confirmed that this is not an appropriate case for a class action, in part because the determination of each class member's claim would require individual trials, and in part because an alternate remedy is available from the Ontario Energy Board (OEB). As detailed in an earlier post, because of "a malfunctioning and a negligently implemented and administered CIS," Hydro One undercharged or overcharged some of its 1.3 million customers. Some customers did not receive bills for extended periods of time and some customers received incorrect bills, including bills with large overcharge amounts. The proposed class action seeks damages of $100 million related to alleged overcharges. Hydro One asserts that it responded to and resolved all billing issues, and that ultimately no customer was overcharged. The motion judge in the November 2017 Decision declined to certify the class action, finding that there were insufficient common issues and noting that a class action is not preferable in this case to individual lawsuits by class members. The motion judge found that even if the representative plaintiff was successful in establishing its overall claims (the common issues), there would be a host of remaining issues (largely around damages) to be established in individual damages trials. The motion judge also found that there are alternative administrative procedures that could be pursued through the OEB, such as the OEB's complaint process. The motion judge noted that the OEB is guided by the objective of protecting the interests of customers with respect to prices, and that the OEB could be expected to respond in appropriate cases in accordance with its statutory mandate. The Ontario Divisional Court did not disturb any of the findings of the motion judge. On the question of whether the proposed class action raises common issues, the Divisional Court Decision endorsed the findings of the motion judge, stating that: A finding that some bills were wrong and the CIS was poorly designed and implemented does not advance the resolution of the claims for the class. It will still be necessary to determine for each individual, what loss, if any, was suffered, whether the loss was caused by the CIS or something else (computer malfunction or human error, for example), and what recompense has already been received. In other words there is no saving compared to individual trials. Alternatively expressed, no issue is off the table at individual trials because it has been resolved already at the common trial. As a final comment, the Divisional Court judges declined to disturb the motion judge's finding that a class action is not the preferable procedure. The judges agreed that the motion judge had properly weighed relevant factors in finding that "the goals of the [Class Proceedings Act] are met by the OEB, which is the legislature's chosen and preferred vehicle to regulate the respondents' behaviour." [GN] JONATHAN NEIL: Court Requires Supplemental Briefing in Brown ------------------------------------------------------------ The United States District Court for the Eastern District of California issued an Order requiring Supplemental Brief on Motion for Approval of Class Action Settlement in the captioned TERI BROWN, Plaintiff, v. JONATHAN NEIL AND ASSOCIATES, INC., Defendant. Case No. 1:17-cv-00675-SAB. (E.D. Cal.). A joint motion for final approval of the class settlement in this action was filed along with a motion for attorney fees. In reviewing the motion for final approval, the Court shall require supplemental briefing regarding the following. In his declaration, Mr. Marcus states that the firm has received no objections to the settlement or opt outs. However, the class notice was mailed, after the date to which Mr. Marcus states there are no objections. Mr. Marcus shall file a declaration addressing whether any members objected or opted out of the settlement prior to the deadline to do so. The joint motion for final approval states that each class member will receive $36.36. There is no information describing how this amount was arrived at. The Court notes that there are 279 class members and the award appears to have been determined by using only the 275 class members that actually received notice, although why the parties determined not to designate the award for the missing class members to the cy pres beneficiary is not addressed. The Plaintiff designates Greater Bakersfield Legal Assistance, Inc. as the cy pres beneficiary. A cy pres award must qualify as the next best distribution to giving the funds directly to the class members. Here, the Plaintiff did not include any information about Greater Bakersfield Legal Assistance, Inc. Without information on Greater Bakersfield Legal Assistance, Inc., the Court cannot find that that it is an appropriate cy pres beneficiary. The Plaintiff is directed to submit further briefing addressing why Greater Bakersfield Legal Assistance, Inc. is a proper cy pres beneficiary. A full-text copy of the District Court's February 4, 2019 Order is available at https://tinyurl.com/yyq42a8e from Leagle.com. Teri Brown, Plaintiff, represented by Ari Marcus -- Ari@MarcusZelman.com -- Marcus & Zelman, LLC, pro hac vice, Yitzchak Zelman -- Yzelman@MarcusZelman.com -- Marcus & Zelman, LLC, pro hac vice & Tammy L. Hussin -- Tammy@HussinLaw.com -- Hussin Law. Jonathan Neil and Associates, Inc., Defendant, represented by Christopher Michael Egan -- cegan@porterscott.com -- Porter Scott, APC, Derek Joseph Haynes -- dhaynes@porterscott.com -- Porter Scott, PC & Lynette Mary Komar, Porter Scott. LM WIND: Parties Directed to Address Issues in Rosie Bobo Suit -------------------------------------------------------------- The United States District Court for the Eastern District of Arkansas, Western Division, issued an Order requesting issues to be address in the case captioned ROSIE BOBO; and AMBER GRAYSON, Each Individually and on Behalf of All Others Similarly Situated, Plaintiffs, v. LM WIND POWER BLADES ND, INC., Defendant. No. 4:18-cv-230-DPM. (E.D. Ark.). The Court notes the joint motion for preliminary approval of the proposed settlement. Here are the issues the Court requests that the parties address, inter alia: Scrivener's errors? In Swection 7(b), the and/or before romanette (iii) seems to introduce ambiguity into the point system. In Section 16, after romanette (iii), is the Court missing? Perhaps it should be added in (ii) as well the Court construes the settlement. In the release provisions, for example Section 18, the last phrase uses the word derivate. This is an old and odd word, which the Court had to look up in the dictionary. Is there clear phrasing that is more likely to be understood by the workers in this case? On the notice, a period is omitted at the end of the bold sentences in the third box. Substantive issues. Sections 12(c) and (d) on curing late and deficient claims seem a bit tight, given the preclusive effects on the Rule 23 class members. Plus, because LM Wind Power will get any undistributed settlement funds, the company would have an incentive to be unforgiving when deciding whether a claim gets paid or not. Similar concerns on Section 13(b): an untimely or defective opt out equals no money and release. The release in Section 19, is broader than the release in the notice form. The proposed agreement and claim form, Section 13(a) and No. 18-1 at 25, make it harder to opt out than to make a claim. This situation enhances some of the Court's other concerns. In the claim notice, the first shaded box would be more accurate if reversed: Your options and legal rights. In the notice, the first box refers to the class action settlement and release described above, but the release is not described above. Same problem with the third box. The release isn't described until several pages in. A full-text copy of the District Court's February 4, 2019 Order is available at https://tinyurl.com/y2q6jp8b from Leagle.com. Rosie Bobo, Individually and on Behalf of All Others Similarly Situated & Amber Grayson, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, represented by Daniel D. Ford, Sanford Law Firm, Joshua Sanford, Sanford Law Firm & Joshua Lee West, Sanford Law Firm. LM Wind Power Blades ND Inc, Defendant, represented by Leni D. Battaglia -- leni.battaglia@morganlewis.com -- Morgan, Lewis & Bockius LLP, pro hac vice & Eva C. Madison -- emadison@littler.com -- Littler Mendelson, P.C. LOS ROBLES: Settles Employees' Back Wages Class Action for $3MM --------------------------------------------------------------- Becca Whitnall, writing for Thousand Oaks Acorn, reports that without admitting any wrongdoing, Los Robles Regional Medical Center has agreed to pay nearly $3 million to settle a class-action lawsuit alleging it owes some employees and former employees back wages. The settlement is the result of a suit filed in June 2014 by former Los Robles nurse Jeanette Munden, who alleged that the hospital prevented employees from taking lunch breaks and broke other labor laws and that it failed to pay employees what they were owed. In court filings, she claimed she was regularly denied meal and rest breaks in violation of state law. She also said she did not receive proper compensation when she resigned in 2015. Ms. Munden did not respond to attempts to contact her for comment. According to the settlement, $1.9 million of the $2.95 million will be split among the 3,000 class members, with lead plaintiff Ms. Munden receiving $15,000 of that. Of the remainder, $973,000 will go to legal fees and $10,000 will be paid to the state for labor code violations. "We're happy the case is resolved," said Ms. Munden's attorney, Marcus Bradley of Bradley/Grombacher LLP of Westlake Village, adding that he was extremely limited in what he was allowed to say regarding the suit. "It was a fair settlement based on the facts and data we presented," he said. In a statement sent to the Acorn, Los Robles said: "Unfortunately, these kinds of employment lawsuits are all too common at this time. There are hundreds filed in our state every year and that does not mean that they have merit. We deny all allegations in the lawsuit; we made the decision to enter into a no-fault settlement in order to resolve it and keep our focus on what we do best: caring for our patients." The current settlement, approved Jan. 16 by Ventura County Superior Court Judge Kevin DeNoce, is neither the first nor the largest Los Robles has been a party to. In 2005, the hospital settled a case filed two years earlier for $4.75 million. In that case, four respiratory therapists accused Los Robles of miscalculating overtime and not compensating hourly workers for missed breaks, according to a Los Angeles Times report from that period. According to the California Department of Industrial Relations, employers generally must provide a nonpaid meal break of not less than 30 minutes to employees working a five-hour or longer work period. In addition, employers generally must provide hourly workers with a rest break of 10 minutes for each four hours worked. Of those eligible to participate in the Munden case, 74 opted out of the action and one class member filed an objection to the settlement. [GN] LUPER ENTERPRISES: Borozny Asserts Breach under ADA in Florida -------------------------------------------------------------- Luper Enterprises Inc. is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled Austin Borozny, individually and on behalf of all others similarly situated, Plaintiff v. Luper Enterprises Inc., a Florida corporation, Defendant, Case No. 8:19-cv-00397 (M.D. Fla., February 14, 2019). Luper Enterprises Inc. is engaged in the real estate business.[BN] The Plaintiff is represented by: Jessica Lynn Kerr, Esq. The Advocacy Group, LLC 200 SE 6th St Ste 504 Fort Lauderdale, FL 33301-3424 Tel: (954) 282-1858 Fax: (844) 786-3694 Email: jkerr@advocacypa.com MARKET PLUS: Retina Associates Sues over Unsolicited Fax Ads ------------------------------------------------------------ RETINA ASSOCIATES MEDICAL GROUP, INC., individually and on behalf of all others similarly situated, the Plaintiff, MARKET PLUS LLC and NANCY JUNE LANCASTER, the Defendants, Case No. 8:19-cv-00288 (C.D. Cal., Feb. 13, 2019), alleges that the Defendants, directly or through other persons acting on their behalf, conspired to, agreed to, contributed to, assisted with, or otherwise caused the wrongful acts and omissions, including the dissemination of junk faxes. Through fax messages sent in December 2018 and January 2019, the Defendants sought to hire the Plaintiff to take its web survey in exchange for $55. Attorney for the Plaintiff: Seth M. Lehrman, Esq. EDWARDS POTTINGER LLC 425 North Andrews Avenue, Suite 2 Fort Lauderdale, FL 33301 Telephone: 954 524-2820 Facsimile: 954 524-2822 E-mail: seth@epllc.com MDL 2591: Burkes Can't Intervene in Syngenta Ag MIR 162 Corn Suit ----------------------------------------------------------------- Magistrate Judge James P. O'Hara of the U.S. District Court for the District of Kansas denied John and Joanna Burkes' motion to intervene in the case, IN RE: SYNGENTA AG MIR162 CORN LITIGATION. This document relates to: KENNETH P. KELLOGG, et al., Plaintiffs, v. WATTS GUERRA, LLP, et al., Defendants, MDL 14-md-2591-JWL, Case No. 18-2408-JWL (D. Kan.). In the putative class action, the Plaintiffs who are all farmers, bring fraud-based claims against lawyers and law firms that represented them in their claims against Syngenta in the underlying MDL. The gravamen of their complaint is that the lawyers committed fraud and malpractice in soliciting and representing them. Two individuals who are not farmers and who have not been represented by the Defendant law firms, the Burkes, have filed a motion to intervene in the action under Fed. R. Civ. P. 24(a) and (b). All parties oppose their intervention. The Burkes state they seek intervention to protect their interest in their homestead which is under the order of foreclosure, as a direct result of legal conspiracy. They go on to discuss an alleged conspiracy perpetrated by lawyers who are not parties in the action, and related to property not involved in this action. They also express admiration for farmers and seek intervention to help the corn farmers. Judge O'Hara finds that missing from the Burkes' motion is any suggestion that they have an interest related to the legal representation by the specific defendants in the case of the specific farmer plaintiffs in the case, in other words, to the property or transaction that is the subject of the action. They simply have no legal or factual connection to the case. They are not current or former clients of any defendant, nor are they corn growers (much less members of a class of Plaintiffs in the MDL). The Burkes interest in their homestead is not an interest that could be adversely affected by the litigation. Accordingly, the Judge finds the Burkes have failed to establish the right to intervene under Rule 24(a)(2). The Burkes state that negligent legal misrepresentation is a theme common in both their cases and the action. Although this may be generally true, the Judge declines to allow permissive intervention on this attenuated basis. He is confident the Plaintiffs' counsel can adequately address the issue, and permitting overlapping briefing and argument by movants would be inefficient and contradictory to Fed. R. Civ. P. 1's mandate that the federal rules be interpreted to secure the just, speedy, and inexpensive resolution of the action. Accordingly, he declines the Burkes' request to intervene under Rule 24(b). For these reasons, Judge O'Hara denied the Burkes' motion to intervene. The Burkes are informed that, within 14 days after they are served with a copy of the Order, they may, pursuant to Fed. R. Civ. P. 72 and D. Kan. Rule 72.1.4(a), file written objections to the Order by filing a motion for the district court judge to review it. They must file any objections within the 14-day period if they want to have appellate review of the Order. If they do not timely file objections, no court will allow appellate review. A full-text copy of the Court's Feb. 12, 2019 Order is available at https://is.gd/WRlTLQ from Leagle.com. All Plaintiffs, represented by Don M. Downing -- ddowning@grgpc.com -- Gray, Ritter & Graham, PC, pro hac vice, Patrick J. Stueve -- stueve@stuevesiegel.com -- Stueve Siegel Hanson LLP, Richard L. Coffman, The Coffman Law Firm, Scott A. Powell -- scott@hwnn.com -- Hare Wynn Newell & Newton, pro hac vice & William B. Chaney -- wchaney@grayreed.com -- Gray Reed & McGraw, LLP, pro hac vice. All Defendants, represented by Michael D. Jones -- michael.jones@kirkland.com -- Kirkland & Ellis, pro hac vice & Thomas P. Schult -- tschult@berkowitzoliver.com -- Berkowitz Oliver Williams Shaw & Eisenbrandt, LLP. Ellen K. Reisman, Special Master, represented by Ellen K. Reisman -- tschult@berkowitzoliver.com -- Reisman Karron Greene LLP. Stracener Farming Company, Plaintiff, represented by Clark W. Mason -- clark@clarkmason.com -- Clark Mason Attorneys, pro hac vice, James J. Thompson, Jr. -- JT@JimThompsonLaw.com -- pro hac vice, Jerry Obe Kelly, Kelly Law Firm, PA, pro hac vice, John Paul Byrd -- wwinfo@paulbyrdlawfirm.com -- Paul Byrd Law Firm, PLLC, pro hac vice, Martin J. Phipps -- mphipps@phippscavazos.com -- Phipps Anderson Deacon LLP, Mikal C. Watts -- mcwatts@wattsguerra.com -- Watts Guerra, LLP & Nolan E. Awbrey, Riley Jackson, PC, pro hac vice. David Stracener, Plaintiff, represented by Clark W. Mason, Clark Mason Attorneys, pro hac vice, James J. Thompson, Jr., pro hac vice, Jerry Obe Kelly, Kelly Law Firm, PA, pro hac vice, John Paul Byrd, Paul Byrd Law Firm, PLLC, pro hac vice, Martin J. Phipps, Phipps Anderson Deacon LLP, Mikal C. Watts, Watts Guerra, LLP & Nolan E. Awbrey, Riley Jackson, PC, pro hac vice. Larry Petit, Plaintiff, represented by Clark W. Mason, Clark Mason Attorneys, pro hac vice, James J. Thompson, Jr., pro hac vice, Jerry Obe Kelly, Kelly Law Firm, PA, pro hac vice, John Paul Byrd, Paul Byrd Law Firm, PLLC, pro hac vice, Martin J. Phipps, Phipps Anderson Deacon LLP, Mikal C. Watts, Watts Guerra, LLP & Nolan E. Awbrey, Riley Jackson, PC, pro hac vice. Trans Coastal Supply Company Inc., Plaintiff, represented by Jayne Conroy -- JConroy@simmonsfirm.com -- Simmons Hanly Conroy, Martin J. Phipps, Phipps Anderson Deacon LLP, Mikal C. Watts, Watts Guerra, LLP, Patrick J. Stueve, Stueve Siegel Hanson LLP, Paul J. Hanly -- phanly@simmonsfirm.com -- Jr., Simmons Hanly Conroy, Sarah Burns, Simmons Hanly Conroy & William B. Chaney -- wchaney@grayreed.com -- Gray Reed & McGraw, LLP. Luke Claas, Plaintiff, represented by Adam J. Levitt -- wchaney@grayreed.com -- Grant & Eisenhofer, PA, pro hac vice, Edmund S. Aronowitz, Grant & Eisenhofer, PA, pro hac vice, J. Brett Milbourn -- BMILBOURN@WBSVLAW.COM -- Walters Bender Strohbehn & Vaughan, PC, James J. Pizzirusso, Hausfeld LLP, pro hac vice, Martin J. Phipps, Phipps Anderson Deacon LLP, Mikal C. Watts, Watts Guerra, LLP, Paul D. Lundberg -- paul@lundberglawfirm.com -- Lundberg Law Firm, PLC, pro hac vice & Thomas V. Bender -- TBENDER@WBSVLAW.COM -- Walters Bender Strohbehn & Vaughan, PC. Meinke Farms, Plaintiff, represented by Adam J. Levitt, Grant & Eisenhofer, PA, pro hac vice, Edmund S. Aronowitz, Grant & Eisenhofer, PA, pro hac vice, J. Brett Milbourn, Walters Bender Strohbehn & Vaughan, PC, James J. Pizzirusso, Hausfeld LLP, pro hac vice, Martin J. Phipps, Phipps Anderson Deacon LLP, Mikal C. Watts, Watts Guerra, LLP, Paul D. Lundberg, Lundberg Law Firm, PLC, pro hac vice & Thomas V. Bender, Walters Bender Strohbehn & Vaughan, PC. Cargill International SA, Defendant, represented by Clifford M. Greene -- cgreene@greeneespel.com -- Greene Espel PLLP, Erin Sindberg Porter -- esindbergporter@greeneespel.com -- Greene Espel PLLP, Janine W. Kimble, Greene Espel PLLP, John W. Ursu -- jursu@greeneespel.com -- Greene Espel PLLP, Martin J. Phipps, Phipps Anderson Deacon LLP, Mikal C. Watts, Watts Guerra, LLP & X. Kevin Zhao -- kzhao@greeneespel.com -- Greene Espel PLLP. Syngenta Biotechnology, Inc., Third Party Plaintiff, represented by D. Scott Aberson -- scott.aberson@maslon.com -- Maslon Edelman Borman & Brand, LLP, David S. Chipman, CASA of Shawnee County, pro hac vice, Edwin J.U. -- edwin.u@kirkland.com -- Kirkland & Ellis, Michael D. Jones -- michael.jones@kirkland.com -- Kirkland & Ellis, Patrick F. Philbin -- patrick.philbin@kirkland.com -- Kirkland & Ellis & Thomas P. Schult -- tschult@berkowitzoliver.com -- Berkowitz Oliver Williams Shaw & Eisenbrandt, LLP. Syngenta Corporation, Third Party Plaintiff, represented by David S. Chipman, CASA of Shawnee County, pro hac vice. Syngenta Seeds, Inc., Third Party Plaintiff, represented by David S. Chipman, CASA of Shawnee County, pro hac vice. Cargill International SA, Defendant, represented by Clifford M. Greene, Greene Espel PLLP, Erin Sindberg Porter, Greene Espel PLLP, Janine W. Kimble, Greene Espel PLLP, John W. Ursu, Greene Espel PLLP, Martin J. Phipps, Phipps Anderson Deacon LLP, Mikal C. Watts, Watts Guerra, LLP & X. Kevin Zhao, Greene Espel PLLP. MDL 2741: 2 Suits v. Monsanto Transferred to N.D. California ------------------------------------------------------------ In the case, IN RE: ROUNDUP PRODUCTS LIABILITY LITIGATION, MDL No. 2741, Judge Sarah S. Vance of the U.S. Judicial Panel on Multidistrict Litigation has entered an order transferring two action from the Eastern District of Missouri to the Northern District of California and, with the consent of that court, assigned the actions to the Honorable Vince Chhabria for coordinated or consolidated pretrial proceedings. The two actions are styled, OUZEANES, ET AL. v. MONSANTO COMPANY, C.A. No. 4:18-01806; and HOOKS, ET AL. v. MONSANTO COMPANY, C.A. No. 4:18-01897. Plaintiffs in the two actions move under Panel Rule7.1 to vacate the Panel's order that conditionally transferred these actions to the Northern District of California for inclusion in MDL No. 2741. Defendant Monsanto Company opposes the motions to vacate. In support of their motions, plaintiffs argue that federal subject matter jurisdiction is lacking and that plaintiffs' pending remand motions should be decided by the transferor courts. As the Panel has often held, such jurisdictional issues generally do not present an impediment to transfer. Plaintiffs can present their jurisdictional arguments to the transferee judge. Therefore, after considering the argument of counsel, Judge Vance finds that the two actions involve common questions of fact with the actions transferred to MDL No. 2741, and that transfer under 28 U.S.C. Sec. 1407 will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. In the Panel's order centralizing this litigation, the Judge held that the Northern District of California was an appropriate Section 1407 forum for actions sharing factual questions arising out of allegations that Monsanto's Roundup herbicide, particularly its active ingredient, glyphosate, causes non-Hodgkin's lymphoma. Plaintiffs do not dispute that their respective actions share multiple factual issues with the cases already in the MDL. Like plaintiffs in the MDL, plaintiffs in these two actions allege that they or their decedents developed non-Hodgkin's lymphoma after using Roundup. A full-text copy of the Court's February 7, 2019 Transfer Order is available at https://bit.ly/2BSQI2v MDL 2775: 2 Smith & Nephew BHR Suits Transferred to Maryland ------------------------------------------------------------ In the case, IN RE: SMITH & NEPHEW BIRMINGHAM HIP RESURFACING (BHR) HIP IMPLANT PRODUCTS LIABILITY LITIGATION, MDL No. 2775, Judge Sarah S. Vance of the U.S. Judicial Panel on Multidistrict Litigation has entered an order transferring two actions to the District of Maryland and, with the consent of that court, assigned the actions to the Honorable Catherine C. Blake for coordinated or consolidated pretrial proceedings. The two actions are: - BROWN, ET AL. v. SMITH & NEPHEW, INC., C.A. No. 1:18-23908 (Southern District of Florida); and - KEMP v. SMITH & NEPHEW, INC., ET AL., C.A. No. 1:18-00593 (Eastern District of Texas). Plaintiffs in the Brown and Kemp actions move under Panel Rule 7.1 to vacate the Panel's orders that conditionally transferred their respective actions to the District of Maryland for inclusion in MDL No. 2775. Defendants Baptist Hospital of Southeast Texas, Beaumont Bone and Joint Institute, P.A., and Ronald Talbert, M.D., support plaintiff's motion to vacate in the Kemp action. Defendant Smith & Nephew, Inc., opposes both motions. In opposition to transfer, plaintiffs in Brown, pending in the Southern District of Florida, argue that transfer is inappropriate because Brown does not involve sufficient questions of fact in common with the actions pending in the MDL. To the contrary, plaintiffs' claims fall squarely within the scope of the MDL. They allege that Mrs. Brown underwent a hip resurfacing using the Birmingham Hip Resurfacing (BHR) system, which was removed and replaced with Smith &Nephew's Short Modular Femoral (SMF) system. Plaintiffs assert product liability claims pertaining to both the BHR and SMF system. The Panel previously held that MDL No. 2775 "include[s]... actions asserting a claim as to a BHR component," and "[t]he only actions excluded from the MDL as falling outside the scope of the litigation [do]not involve any allegations relating to BHR components." The Panel is not persuaded that plaintiffs' claims pertaining to the SMF system necessitate excluding Brown from the MDL. Transfer under Section 1407 does not require a complete identity or even majority of common factual and legal issues. With respect to Kemp, pending in the Eastern District of Texas, plaintiff and the three defendants that support the motion to vacate argue that Kemp should not be transferred until the transferor court had decided plaintiff's pending motion to remand the action to state court. The pendency of jurisdictional objections are not, as a general matter, a sufficient reason to delay or deny transfer. The Panel is not persuaded by plaintiff's argument that his jurisdictional objections should be treated differently because remand purportedly is compelled under controlling case law. The Panel regularly orders transfer of actions over similar objections, consistent with the well-established principle that the Panel lacks the authority under Section 1407 to decide questions going to the jurisdiction or merits of a case. Plaintiff asserts several additional arguments against transfer. First, plaintiff contends that transfer is not appropriate because he asserts claims against healthcare providers and sales representatives, and therefore discovery in Kemp will be unique. The presence of additional facts, theories, and parties, however, is not significant when the actions arise from a common factual core. Kemp will require the same discovery of the BHR system and Smith & Nephew's conduct as the actions in the MDL; that plaintiff's claims may require additional discovery does not bar transfer. Plaintiff also suggests that informal cooperation and coordination among the parties is preferable to transfer. Plaintiff's willingness to coordinate discovery efforts is to be commended. In this instance, though, such cooperation and coordination will be better effectuated within the confines of the MDL. Finally, plaintiff argues that Kemp has reached an advanced procedural posture that weighs against transfer to the MDL. In fact, pretrial proceedings in Kemp remain at an early stage. Written discovery of the Texas defendants had only just begun when Kemp was removed to the Eastern District of Texas. No depositions have yet been taken, nor any dispositive motions filed. Transfer to the MDL at this juncture will facilitate coordination of common discovery and pretrial practice with the actions in the MDL. Accordingly, after considering the argument of counsel, Judge Vance finds that the two actions involve common questions of fact with the actions transferred to MDL No. 2775, and that transfer under 28 U.S.C. Sec. 1407 will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. In the Panel's order centralizing this litigation, the Panel held that the District of Maryland was an appropriate Section 1407 forum for actions sharing factual questions concerning the design, manufacture, marketing or performance of Smith & Nephew's BHR system. The actions in this MDL focus on complications arising from the use of a cobalt-chromium alloy in the manufacture of the BHR components. Plaintiffs in both Brown and Kemp similarly allege that they suffered complications arising from the metal-on-metal nature of the BHR components used in their respective hip resurfacing or hip replacement procedures. A full-text copy of the Court's February 7, 2019 Transfer Order is available at https://bit.ly/2H1u5wb MDL 2782: MSP Recovery Suit Transferred to N.D. Georgia ------------------------------------------------------- In the case, IN RE: ETHICON PHYSIOMESH FLEXIBLE COMPOSITE HERNIA MESH PRODUCTS LIABILITY LITIGATION, MDL No. 2782, Judge Sarah S. Vance of the U.S. Judicial Panel on Multidistrict Litigation has entered an order transferring the case styled MSP RECOVERY CLAIMS, SERIES LLC, ET AL. v. JOHNSON & JOHNSON, ET AL., C.A. No. 1:18-24580, from the Southern District of Florida to the Northern District of Georgia and, with the consent of that court, assigned the action to the Honorable Richard W. Story for inclusion in the coordinated or consolidated pretrial proceedings. Defendants Ethicon, Inc., and Johnson & Johnson move under 28 U.S.C. Sec. 1407(c) for transfer of the MSP Recovery action to the Northern District of Georgia for inclusion in MDL No. 2782. Plaintiffs do not respond to the motion and, therefore, are deemed to acquiesce in the relief sought. After considering the argument of counsel, Judge Vance finds that MSP Recovery involves common questions of fact with the actions transferred to MDL No. 2782, and that transfer under 28 U.S.C. Sec. 1407 will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. No party disputes that, like many of the already-centralized actions, MSP Recovery involves factual questions arising out of allegations that defects in defendants' Physiomesh hernia mesh can lead to complications when implanted in patients. Plaintiffs in MSP Recovery seek a pure bill of discovery against defendants, in support of a planned future action to recoup the costs that may have been incurred by Medicare payors as a result of patients' implantation with defendants' Physiomesh product. The discovery they seek includes identifying information on patients who have been implanted with Physiomesh. The requested discovery thus likely overlaps with the common discovery in MDL No. 2782. It appears that defendants will oppose production of this information, and transfer may prevent inconsistent rulings on this discovery issue, according to Judge Vance. If the transferee judge determines that MSP Recovery is best excluded from centralized proceedings, procedures are available to accomplish this with a minimum of delay. A full-text copy of the Court's February 6, 2019 Transfer Order is available at https://bit.ly/2BQa6x2 MDL 2800: Smith v. Equifax Transferred to Georgia Northern Dist. ---------------------------------------------------------------- In the case, IN RE: EQUIFAX, INC., CUSTOMER DATA SECURITY BREACH LITIGATION, MDL No. 2800, Judge Lewis A. Kaplan of the U.S. Judicial Panel on Multidistrict Litigation has entered an order transferring the action styled SMITH v. EQUIFAX INC., C.A. No. 2:18-01147 from the Northern District of Alabama to the Northern District of Georgia and, with the consent of that court, assigned it to the Honorable Thomas W. Thrash for inclusion in the coordinated or consolidated pretrial proceedings. Plaintiff in the action (Smith), proceeding pro se, moves under Panel Rule 7.1 to vacate the Panel's order conditionally transferring his action to MDL No. 2800. Defendant Equifax, Inc., opposes the motion to vacate. After considering all arguments, Judge Kaplan finds this action involves common questions of fact with the actions previously transferred to MDL No. 2800, and that transfer under 28 U.S.C. Sec. 1407 will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. The actions in MDL No. 2800 arise from a 2017 cybersecurity incident involving Equifax in which it is alleged that the personally identifiable information of more than 145 million consumers was compromised. While the initial transfer order in MDL No. 2800 included only putative nationwide and statewide consumer class actions, actions brought by individual consumers, including pro se plaintiffs, have been included in centralized proceedings through Section 1407 transfer or direct filing in the transferee court. Smith involves allegations, similar to those in the MDL No. 2800 actions, that Equifax failed to adequately safeguard plaintiff's personally identifiable information, which was compromised during the Equifax data breach; failed to provide the public with timely notice of the breach; and that certain Equifax executives improperly sold Equifax stock before publicly announcing the breach. Plaintiff does not dispute that his action arises out of the 2017 Equifax data breach and shares questions of fact and law with the MDL No. 2800 actions. Against transfer, he argues that (1) transfer outside his home district would be inconvenient, (2) he has not consented to transfer under Section 1404(a), and (3) he has been granted permission to sue by the U.S. Department of Justice (DOJ). The Judge has held that, while it might inconvenience some parties, transfer of a particular action often is necessary to further the expeditious resolution of the litigation taken as a whole. The transferee judge is in the best position to structure proceedings so as to minimize inconvenience to any individual party. Moreover, the Section 1407 transfer does not require plaintiff's consent. That the DOJ informed plaintiff he could file a lawsuit when it denied his Federal Tort Claims Act claim is not relevant to the Panel's determination under Section 1407. A full-text copy of the Court's February 12, 2019 Transfer Order is available at https://bit.ly/2TlhJWA MDL 2804: 7 Actions Transferred to Northern District of Ohio ------------------------------------------------------------ In the case, IN RE: NATIONAL PRESCRIPTION OPIATE LITIGATION, MDL No. 2804, Judge Sarah S. Vance of the U.S. Judicial Panel on Multidistrict Litigation has entered an order transferring seven actions to the Northern District of Ohio and, with the consent of that court, assigned the actions to the Honorable Dan A. Polster for inclusion in the coordinated or consolidated pretrial proceedings. Plaintiffs in seven actions and Southern District of Ohio defendant Mylan Bertek Pharmaceuticals, Inc., move under Panel Rule 7.1 to vacate the orders conditionally transferring the actions to MDL No. 2804. Various responding manufacturer and distributor defendants oppose the motions. After considering the argument of counsel, Judge Vance finds these actions involve common questions of fact with the actions previously transferred to MDL No. 2804, and that transfer under 28 U.S.C. Sec. 1407 will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. Moreover, transfer is warranted for the reasons set out in her order directing centralization. In that order, she held that the Northern District of Ohio was an appropriate Section 1407 forum for actions sharing factual questions regarding the allegedly improper marketing and distribution of various prescription opiate medications into cities, states and towns across the country. Despite some variances among the actions before the Panel, all contain a factual core common to the MDL actions: the manufacturing and distributor defendants' alleged knowledge of and conduct regarding the diversion of these prescription opiates, as well as the manufacturers' allegedly improper marketing of such drugs. The actions therefore fall within the MDL's ambit. The parties opposing transfer in five actions argue principally that federal jurisdiction is lacking over their cases. But opposition to transfer challenging the propriety of federal jurisdiction is insufficient to warrant vacating conditional transfer orders covering otherwise factually-related cases. Several parties argue that including their actions in this large MDL will cause them inconvenience. Given the undisputed factual overlap with the MDL proceedings, transfer is justified in order to facilitate the efficient conduct of the litigation as a whole. Plaintiffs in two actions, infants born opioid-dependent, argue that their unique damages -- which include the alleged need for a medical monitoring trust that funds prolonged, multidisciplinary care -- and their need for prompt resolution of their cases differentiate their cases from those brought by the cities, counties and states that comprise the bulk of MDL No. 2804. While the Judge agrees that plaintiffs will have different damages and potential remedies, the differences among these claims are outweighed by the substantial factual allegations shared with the MDL actions. Several similar cases are pending in the MDL, and substantial efficiencies can be obtained by allowing all related actions to proceed in the transferee forum. She further denies these plaintiffs' motions for the reasons stated in her prior transfer decisions involving infants with neonatal abstinence syndrome (NAS). A full-text copy of the Court's February 7, 2019 Transfer Order is available at https://bit.ly/2EuHP0W MDL 2875: Court Transfers 10 Actions to N.J., Expands MDL Scope --------------------------------------------------------------- In the case, IN RE: VALSARTAN N-NITROSODIMETHYLAMINE (NDMA) CONTAMINATION PRODUCTS LIABILITY LITIGATION, MDL No. 2875, Judge Sarah S. Vance of the U.S. Judicial Panel on Multidistrict Litigation has entered an order transferring 10 actions to the District of New Jersey and, with the consent of that court, assigned to the Honorable Robert B. Kugler for coordinated or consolidated pretrial proceedings. Judge Vance as also ordered that MDL No. 2875 is renamed In re: Valsartan Products Liability Litigation. This litigation arises out of an investigation by the U.S. Food and Drug Administration into impurities found in generic drug products containing valsartan, a medication indicated for the treatment of high blood pressure and other conditions. During the course of the FDA investigation, a number of voluntary recalls of generic valsartan medications were issued. Purchasers of recalled lots of generic valsartan subsequently filed actions alleging economic losses. The initial wave of consumer class actions was followed by actions alleging personal injuries from the ingestion of affected valsartan medications, as well as other related litigation. Plaintiff in one action moves under 28 U.S.C. Sec. 1407 to centralize 10 actions in the District of New Jersey. Each of these actions seeks economic damages and related injunctive relief on behalf of proposed classes of purchasers of generic valsartan. The initial motion for centralization also listed an action alleging individual personal injury (Gentry), but the action subsequently was voluntarily dismissed. Since the filing of the motion, the Panel has been notified of 30 related actions. Of these, 17 are individual personal injury actions, and the remainder are putative class actions on behalf of consumers and third-party payors. Responding plaintiffs in seven actions on the motion and nine potential tag-along actions support centralization of all actions, including the personal injury actions, and request the District of New Jersey as their first or second choice of forum. Their other suggested districts are the Northern District of California, the Northern District of Florida, the District of Massachusetts, the District of Minnesota, and the Western District of Texas. Plaintiffs in two actions on the motion (Stimma and Duffy) support centralization only of the consumer class actions and seek the District of New Jersey. Plaintiff in one potential tag-along action on behalf of third-party payors (MSP Recovery) seeks inclusion of its action and requests the Southern District of Florida or the District of New Jersey. The principal common defendants in this litigation -- Zhejiang Huahai Pharmaceutical Co., Ltd. (ZHP) and its U.S. affiliates Prinston Pharmaceutical Inc., Solco Healthcare U.S., LLC, and Huahai U.S., Inc. (together, the ZHP defendants) -- along with pharmacy defendants Walgreen Co. and Throggs Neck Pharmacy support centralization of the 10 actions on the motion in the District of New Jersey. They ask the Panel to limit the scope of the MDL solely to consumer class actions, though they acknowledged shared factual issues among the personal injury and consumer actions at oral argument. The Mylan defendants -- sued in six potential tag-along actions -- oppose inclusion 23 of any actions against Mylan or actions involving personal injuries and, alternatively, request the District of New Jersey or the Northern District of West Virginia. The other respondingdefendants4do not oppose centralization of solely the consumer class actions in the District of New Jersey, but Teva and certain other defendants suggest that an MDL may not be warranted on the ground that alternatives to centralization exist, particularly transfer under Section 1404(a). In the event an MDL is established, they strongly oppose inclusion of any personal injury actions. Additionally, Teva opposes inclusion of the MSP Recovery third-party payor action. On the basis of the papers filed and the hearing held, Judge Vance finds that these actions involve common questions of fact, and that centralization will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation. All actions involve common factual questions arising out of allegations that plaintiffs purchased or used generic formulations of valsartan medications containing the nitrosamine impurities NDMA and/or NDEA; that these impurities present a risk of cancer and liver damage; and that defendants knew, or should have known, of the impurities as early as 2012. All actions stem from the same FDA investigation and voluntary recall announced in July 2018, and the voluntary recalls are ongoing. Although the investigation, and the earliest-filed actions, focused on ZHP as the source of the alleged impurities, the FDA investigation and the actions before the Panel now encompass alleged industry-wide issues concerning the production of the valsartan active pharmaceutical ingredient (API) which will be common to all actions. The common questions of fact include: (1) whether the generic valsartan sold by defendants contained NDMA or NDEA; (2) the cause of the alleged impurities, including alleged defects in the manufacturing and sampling process; (3) when defendants knew or should have known of the impurities; (4) how long the NDMA- and NDEA-containing valsartan medications were in circulation; and (5) whether the amounts of NDMA and NDEA in the medications presented a risk of cancer or other injuries. All of the valsartan actions will raise these issues, regardless of whether the alleged supplier of the valsartan API was ZHP, Mylan, Hetero Labs Limited, or some other entity. Centralization will eliminate duplicative discovery; prevent inconsistent pretrial rulings, including with respect to class certification and Daubert motions; and conserve the resources of the parties, their counsel, and the judiciary. Although all pending actions on the motion before the Panel are putative consumer class actions seeking economic damages, Judge Vance received extensive briefing and oral argument on whether the MDL should include personal injury actions. Based on this record, she believes that the centralized proceedings should include the related personal injury actions alleging that plaintiffs developed cancer as a result of using valsartan containing NDMA or NDEA impurities. The core factual issues in the personal injury actions will be the same as in the consumer class actions -- in particular, the cause of the alleged impurities; the nature and extent of the health risks posed by the NDMA and NDEA levels at issue; defendants' knowledge of the alleged impurities; and the impact of any findings made by the FDA. Additionally, there is significant overlap in defendants in the consumer class actions and personal injury actions. Thus, discovery undoubtedly will overlap among these actions. The Panel often has recognized the efficiencies of centralizing economic loss class actions with personal injury actions, explaining that "liability discovery in all the cases will certainly overlap," and that, in her experience, the individual discovery required in personal injury actions is "regularly and successfully coordinated" within MDLs involving both kinds of actions. For these reasons, she intends to include personal injury potential tag-along actions in this MDL through the conditional transfer order process. Judge Vance also intends to include the MSP Recovery third-party payor class action through the conditional transfer order process. The MSP Recovery action makes substantially the same factual allegations as the consumer class actions - essentially, that defendants sold valsartan medications that they knew or had reason to know contained NDMA or NDEA. The handful of case-specific issues raised by Tevain opposition to transfer -- plaintiff's standing to sue and the assertion of an allegedly unique legal claim -- do not warrant exclusion of the action considering the common factual core. The Judge finds that Section 1404 transfer is not a practicable alternative to centralization, given the number of actions, districts, and counsel for plaintiffs and defendants. There are presently a total of 40 related actions pending in 22 districts, which involve over a dozen distinct slates of plaintiffs' counsel and some 20 defendants, most of whom do not share counsel. These circumstances portend significant inefficiencies and obstacles to Section 1404 transfer of the related actions to a single district. The number of involved districts and counsel also would make efforts to informally coordinate discovery and pretrial motions impracticable. The District of New Jersey is an appropriate transferee district because five actions on the motion and seven potential tag-along actions are pending there. Many of the defendants have their U.S. headquarters in New Jersey, including ZHP's U.S. affiliates, which are named in nearly all actions, as well as Hetero USA Inc., Camber Pharmaceuticals, Inc., and Torrent Pharma, Inc. Thus, common documents and witnesses likely will be located in this district. Nearly all responding parties support, or do not oppose, the District of New Jersey as their first or second choice. Judge Robert B. Kugler is an experienced transferee judge with the willingness and ability to manage this litigation. Judge Vance is confident that he will steer this litigation on a prudent course. Judge Vance further ordered that, in light of this opinion, MDL No. 2875 is renamed In re: Valsartan Products Liability Litigation. A full-text copy of the Court's February 14, 2019 Transfer Order is available at https://bit.ly/2IBZ3NS MDL 2876: Court Denies Bid to Centralize 6 Debt Collection Suits ---------------------------------------------------------------- In the case, IN RE: ENHANCED RECOVERY COMPANY, LLC, FAIR DEBT COLLECTION PRACTICES ACT (FDCPA) LITIGATION, MDL No. 2876, Judge Sarah S. Vance of the U.S. Judicial Panel on Multidistrict Litigation has denied Defendant Enhanced Recovery Company, LLC's motion for centralization of pretrial proceedings of six actions, each pending in a separate district, namely: - Eastern District of California - FRALEY v. ENHANCED RECOVERY COMPANY, LLC, C.A. No. 2:18-02606 - Southern District of Florida - ISRAELSON v. ENHANCED RECOVERY COMPANY, C.A. No. 9:18-80688 - Southern District of Indiana - RHODES v. ENHANCED RECOVERY COMPANY, LLC, C.A. No. 1:17-04297 - Eastern District of New York - HULL v. ENHANCED RECOVERY COMPANY, LLC, C.A. No. 2:18-05787 - Middle District of North Carolina - THIBODEAUX v. ENHANCED RECOVERY COMPANY, LLC, ET AL., C.A. No. 1:18-00470; and - Middle District of Tennessee - HARPER v. ENHANCED RECOVERY COMPANY, ET AL., C.A. No. 3:18-00525 Defendant Enhanced Recovery Company, LLC, moves under 28 U.S.C. Sec. 1407 to centralize pretrial proceedings in this litigation in the Eastern District of New York. This litigation currently consists of six actions, each pending in a separate district. In addition, the parties have notified the Panel of one related action, which was filed in the Eastern District of New York. Plaintiffs in each of these actions allege that they received a debt collection letter from Enhanced Recovery that identified Kohl's Department Store, Inc., as the creditor to which the debt was owed, rather than Capital One, N.A. Plaintiffs allege that this misidentification violates the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. Sec. 1692, et seq. Plaintiffs in two actions oppose centralization, while plaintiffs in the other four actions on the motion support centralization. On the basis of the papers filed and the hearing session held, Judge Vance concludes that centralization will not serve the convenience of the parties and witnesses or further the just and efficient conduct of this litigation. These actions share some factual questions arising from plaintiffs' allegations that Enhanced Recovery sent each of them a debt collection letter that failed to identify Capital One, N.A., as the creditor to which the alleged debt was owed. These common factual questions, though, are not sufficiently complex or numerous to warrant the creation of an MDL. There is no dispute regarding the contents of these letters, only whether the Enhanced Recovery is liable under the FDCPA for those contents. The actions on the motion also involve non-overlapping putative state classes of consumers. Thus, there is no substantial risk of conflicting pretrial rulings, particularly with respect to class certification. Furthermore, only seven actions are at issue here (including the related action), at least four of which involve common plaintiffs' counsel. Where only a minimal number of actions are involved, the proponent of centralization bears a heavier burden to demonstrate that centralization is appropriate. To the extent there is any possibility of duplicative discovery or inconsistent pretrial rulings, voluntary cooperation and coordination among the parties and the involved courts seems a feasible alternative to centralization. A full-text copy of the Court's February 7, 2019 Order is available at https://bit.ly/2IBUgvS MDL 2878: 4 Suits vs. Ranbaxy Inc. Transferred to Massachusetts --------------------------------------------------------------- In the case, IN RE: RANBAXY GENERIC DRUG APPLICATION ANTITRUST LITIGATION, MDL No. 2878, Judge Sarah S. Vance of the U.S. Judicial Panel on Multidistrict Litigation has entered an order transferring four actions to the District of Massachusetts and, with the consent of that court, assigned to the Honorable Nathaniel M. Gorton for coordinated or consolidated pretrial proceedings. The four actions are: District of Massachusetts - MEIJER, INC., ET AL. v. RANBAXY INC., ET AL., C.A. No. 1:15-11828 - MEIJER, INC., ET AL. v. RANBAXY INC., ET AL., C.A. No. 1:18-12129 Eastern District of New York - CESAR CASTILLO, INC. v. RANBAXY INC., ET AL., C.A. No. 1:18-06126 Eastern District of Pennsylvania - UNITED FOOD AND COMMERCIAL WORKERS HEALTH AND WELFARE FUNDOF NORTHEASTERN PENNSYLVANIA v. RANBAXY, INC., ET AL., C.A. No. 2:18-04807 Plaintiff in an action pending in the Eastern District of New York (Cesar Castillo) moves under 28 U.S.C. Sec. 1407 to centralize pretrial proceedings in this litigation in the Eastern District of New York or, alternatively, the District of Massachusetts. This litigation consists of four actions pending in three districts. The actions involve allegations that defendants engaged in anticompetitive conduct in submitting applications for Abbreviated New Drug Applications to improperly secure the "first-to-file" status concerning the generic drugs Diovan, Valcyte and Nexium. Plaintiff in the Eastern District of Pennsylvania action supports centralization in the Eastern District of New York. Plaintiffs Meijer Distribution, Inc., and Meijer, Inc., in two District of Massachusetts actions support centralization in that district. Defendants Ranbaxy Inc., and Sun Pharmaceutical Industries, Ltd. (collectively Ranbaxy), oppose centralization. If the Panel decides to centralize the cases, defendants suggest the Eastern District of New York as the transferee forum. On the basis of the papers filed and hearing held, Judge Vance finds that these actions involve common questions of fact, and that centralization in the District of Massachusetts will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation. Plaintiffs all allege that Ranbaxy adopted a practice of ignoring FDA regulations and protocols to obtain first-to-file status for its generic drug applications. The first-to-file 180-day exclusivity period blocked other generic drugs from entering the market for several months, allowing Ranbaxy to reap large profits. When the FDA made inquiries into its procedures, plaintiffs allege that Ranbaxy enlisted an outside law firm, Buc & Beardsley LLP, and an ostensibly independent consultant, Parexel Consulting LLC, to perpetuate the fraud and falsely represent to the FDA that Ranbaxy complied with FDA regulations. These false reports allegedly allowed Ranbaxy to gain tentative approval of its generic drug applications and maintain its exclusive status for several drugs, including Valcyte, Nexium, and Diovan. Centralization is warranted to prevent inconsistent rulings (including with respect to class certification) and overlapping pretrial obligations, reduce costs, and create efficiencies for the parties, courts, and witnesses. Defendants oppose centralization. They argue that the initial District of Massachusetts action (Meijer I), which was filed in 2015, is too far advanced to benefit from centralization and that the Eastern District of Pennsylvania action's indirect purchaser claims are inappropriate to include alongside the three direct purchaser cases. Judge Vance is not persuaded by these arguments. All cases now before her present complex questions of fact and will involve complex economic analysis, discovery of foreign defendants and issues of regulatory compliance. While some discovery has been taken in Meijer I, and defendants' motion to dismiss has been ruled upon, the action was stayed for most of the year and a half that passed between the filing of the petition for leave to proceed with an interlocutory appeal and the First Circuit's decision denying it in December 2018. Indeed, defendants conceded during oral argument that no depositions have been taken in Meijer I. Because a significant amount of potentially redundant pretrial motion practice remains in all cases -- i.e., class certification, Daubert and summary judgment rulings -- centralization offers an opportunity to streamline this litigation. As to defendants' second argument, the Panel often centralizes the claims of direct and indirect purchasers in a single MDL, so long as they arise from a common factual core, as the claims in these actions clearly do. The Judge selects the District of Massachusetts as the first-filed and most advanced Meijer I action is pending in this district. By selecting Judge Nathaniel M. Gorton to preside over this litigation, she is choosing a jurist well-versed in the nuances of complex and multidistrict litigation to steer this matter on a prudent course. A full-text copy of the Court's February 11, 2019 Transfer Order is available at https://bit.ly/2EuLKuM MDL 2879: 11 Suits v. Marriott Transferred to District of Maryland ------------------------------------------------------------------ In the case, IN RE: MARRIOTT INTERNATIONAL, INC., CUSTOMER DATA SECURITY BREACH LITIGATION, MDL No. 2879, Judge Sarah S. Vance of the U.S. Judicial Panel on Multidistrict Litigation has entered an order transferring 11 lawsuits to the District of Maryland, and, with the consent of that court, assigned to the Honorable Paul W. Grimm for coordinated or consolidated pretrial proceedings. Plaintiffs in two actions move separately under 28 U.S.C. Sec. 1407 to centralize this litigation in the District of Maryland. One movant alternatively suggests centralization in the District of Massachusetts. Plaintiffs' motions include 11 actions pending in five districts. The Panel also has been notified of 70 potentially-related actions filed in eleven districts. The responding parties generally support centralization, though there is some opposition to including the McGrath securities action in centralized proceedings. Responding plaintiffs in nineteen actions support centralization in the District of Maryland, as do defendants Marriott International, Inc.; Marriott Hotel Services, Inc.; and Starwood Hotels & Resorts Worldwide, LLC(Starwood and, together, Marriott). Other suggested transferee districts are the Central District of California, the Northern District of California, the District of Connecticut, the Southern District of Florida, the Eastern District of New York, and the Northern District of Illinois. On the basis of the papers filed and the hearing held, Judge Vance finds that centralization under Section1407 of all actions in the District of Maryland will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation. Ten of these actions -- which are putative nationwide and/or statewide consumer class actions -- share factual issues concerning a recently-disclosed breach of Marriott's Starwood guest reservation database from 2014 to 2018. The factual overlap among these actions is substantial, as they all arise from the same data breach, and they all allege that Marriott failed to put in to place reasonable data protections. Many also allege that Marriott did not timely notify the public of the data breach. Centralization will eliminate duplicative discovery, prevent inconsistent pretrial rulings on class certification and other issues, and conserve the resources of the parties, their counsel, and the judiciary. The McGrath action is brought on behalf of a putative nationwide class of Marriott stockholders. It alleges that defendants' filings with the U.S. Securities and Exchange Commission (SEC) misled investors about the security of Marriott's data systems, resulting in a drop in the price of Marriott securities upon announcement of the data breach. Plaintiffs in at least three consumer class actions support or do not oppose inclusion of McGrath in centralized proceedings. The McGrath plaintiff and defendants (as well as plaintiffs in two consumer class actions) argue that McGrath should not be included because it involves some unique defendants, unique claims, and some unique factual issues regarding the preparation of Marriott's SEC filings and the effect of the announcement of the data breach on Marriott's stock price. But there will be overlapping factual issues and discovery relating to, inter alia, what Marriott knew about the security of Starwood's guest reservation database during and after its acquisition of Starwood in 2016. Indeed, these factual issues likely will be central to both the securities action and the consumer class actions. The Panel has held that Section 1407 "does not require a complete identity of common factual issues or parties as a prerequisite to transfer, and the presence of... differing legal theories is not significant where, as here, the actions still a rise from a common factual core." The Panel finds sufficient factual overlap among the actions to warrant including McGrath in centralized proceedings and that its inclusion will not impose a significant burden on the transferee judge. If the transferee judge finds at any point in pretrial proceedings that the inclusion of McGrath will not serve the convenience of the parties and witnesses or promote the just and efficient conduct of this litigation, Section 1407 remand of the action to its transferor court can be accomplished with a minimum of delay. Judge Vance selects the District of Maryland as Marriott is headquartered in that district, and relevant documents and witnesses thus likely will be found there. Defendants and the vast majority of responding plaintiffs support selection of this district, and far more actions are pending there than in any other district. A full-text copy of the Court's February 6, 2019 Transfer Order is available at https://bit.ly/2SodvsH MDL 2880: Court Denies Bid to Centralize 3 H&R Block Employee Suit ------------------------------------------------------------------ In the case, IN RE: H&R BLOCK EMPLOYEE ANTITRUST LITIGATION, MDL No. 2880, Judge Sarah S. Vance of the U.S. Judicial Panel on Multidistrict Litigation denied the Plaintiff's motion for centralization of pretrial proceedings in three actions. The three actions are: Northern District of Illinois - MAURELLA v. H&R BLOCK, INC., ET AL., C.A. No. 1:18-07435; and - GRIFFITH v. H&R BLOCK, INC., ET AL., C.A. No. 1:18-07520 Western District of Missouri - RAMSEY v. H&R BLOCK, INC., ET AL., C.A. No. 4:18-00933 Plaintiff in an action pending in the Northern District of Illinois (Maurella) moves to centralize pretrial proceedings in this litigation in the Northern District of Illinois. The litigation consists of three actions, two in the Northern District of Illinois, and one in the Western District of Missouri. The Panel has been notified of three additional federal actions involving related issues. Those actions also are pending in the Northern District of Illinois (two) and the Western District of Missouri (one). All responding plaintiffs support centralization, but they differ as to whether it should be in the Northern District of Illinois or the Western District of Missouri. Common defendants H&R Block, Inc., and H&R Block Tax Services LLC (collectively H&R Block) oppose centralization. If the Panel orders centralization over its objections, H&R Block favors the Western District of Missouri. On the basis of the papers filed and the hearing held, Judge Vance concludes that centralization is not necessary for the convenience of the parties and witnesses or to further the just and efficient conduct of this litigation. These actions share factual issues arising from allegations that (1) H&R Block and unnamed co-conspirators engaged in a conspiracy with respect to the recruiting of employees and potential employees, including agreeing not to solicit or recruit, without prior approval, each other's personnel; (2) defendants orchestrated and enforced the agreements among themselves and their franchisees through, inter alia, the use of a "No Poach Clause" in the standard H&R Block franchise agreement; and (3) the agreements impeded or restricted the movement of employees between H&R Block and its franchisees, prohibited and prevented competition between and among H&R Block and its franchisees for employees, unreasonably limited franchisees' ability to solicit individuals who work for H&R Block or other franchisees, and decreased employment options available to current employees. Nevertheless, these issues -- in particular, the existence of the "No Poach Clause" -- appear to be largely undisputed, and unlikely to require significant discovery. Notably, H&R Block, the party most likely to face duplicative discovery requests in the absence of an MDL, opposes centralization. The limited number of involved districts also weighs against centralization. The three constituent actions and three tag-alongs are pending in only the Northern District of Illinois and the Western District of Missouri. The two constituent Illinois actions already have been consolidated, and H&R Block represents that it intends to move in that action to compel arbitration, or, in the alternative, for Section 1404 transfer. If the three Illinois actions are sent to arbitration or transferred, the multidistrict character of this litigation will be eliminated. A full-text copy of the Court's February 7, 2019 Order is available at https://bit.ly/2Xh1MzL MEDI WINEBAR: Hernandez Seeks to Recover Minimum & Overtime Wages ----------------------------------------------------------------- MARCIAL AMARO HERNANDEZ, On Behalf of Himself And All Others Similarly Situated v. MEDI WINEBAR, LLC, 9TH AVE BLUE LLC d/b/a BLUE SEAFOOD BAR & EATERY, DORIAN GASHI and ANDREA GIACOMONI, Case No. 1:19-cv-01295 (S.D.N.Y., February 11, 2019), seeks to recover from the Defendants full payment of all alleged unpaid minimum wage and overtime compensation and liquidated damages under the applicable provisions of the Fair Labor Standards Act. Medi Winebar is a domestic business corporation with its principal place of business located in New York City. 9th Ave Blue LLC, doing business as Blue Seafood Bar & Eatery, is a domestic business corporation with its principal place of business located in New York City. The Individual Defendants are owners, officers or managers of the Defendant Corporations. The Defendants own and operate a wine bar and seafood restaurant, the Medi Winebar and Blue Seafood Bar & Eatery.[BN] The Plaintiff is represented by: Louis M. Leon, Esq. LAW OFFICES OF WILLIAM CAFARO 108 West 39th Street, Suite 602 New York, NY 10018 Telephone: (212) 583-7400 E-mail: LLeon@Cafaroesq.com MERIVALE: Faces Class Action Case for Staff Underpayments --------------------------------------------------------- Staffing Industry Analysts reports that The Australian Financial Review reports that Merivale, an Australia-based hospitality company, is facing a potential class action over claims that it was underpaying workers in breach of workplace laws for years. Australian Law firm Adero has confirmed it is investigating legal action against Merivale after alleging the company misclassified workers and failed to pay them the legal hourly rate even under its long-expired WorkChoices enterprise agreement. Lawyers are currently seeking redress of AUD 15 to 25 million (USD 10.6 to 17.7 million) to recover underpayments, along with financial damages claims for up to AUD 728,000 (USD 516,600). According to Yahoo, the Fair Work Commission terminated the Merivale's long-expired 2007 Employee Collective Agreement that meant it was not required to pay almost 3,000 staff overtime or full penalty rates for nearly a decade. The employee agreement (EA) expired on Dec. 21 2012. Adero's potential lawsuit is understood to raise complex and largely untested legal issues over rates owed in expired agreements made before the Fair Work Act.[GN] MICRON TECHNOLOGY: Rosen Law Files Securities Class Action Lawsuit ------------------------------------------------------------------ Rosen Law Firm, a global investor rights law firm, disclosed the filing of a class action lawsuit on behalf of purchasers of the securities of Micron Technology, Inc. (NASDAQ: MU) from June 22, 2018 through November 19, 2018, inclusive (the "Class Period"). The lawsuit seeks to recover damages for Micron investors under the federal securities laws. To join the Micron class action, go to https://www.rosenlegal.com/cases-1491.html or call Phillip Kim, Esq. or Zachary Halper, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or zhalper@rosenlegal.com for information on the class action. NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN ONE. YOU MAY RETAIN COUNSEL OF YOUR CHOICE. YOU MAY ALSO REMAIN AN ABSENT CLASS MEMBER AND DO NOTHING AT THIS POINT. AN INVESTOR'S ABILITY TO SHARE IN ANY POTENTIAL FUTURE RECOVERY IS NOT DEPENDENT UPON SERVING AS LEAD PLAINTIFF. According to the lawsuit, defendants throughout the Class Period made false and/or misleading statements and/or failed to disclose that: (1) the Chinese State Administration for Market Regulation notified Micron it was investigating dynamic random-access memory ("DRAM") chip providers in China for potential collusion and other anti-competitive conduct; (2) Chinese investigators had found "massive evidence" of Micron's anti-competitive behavior; (3) Micron had engaged in a price-fixing conspiracy with Samsung Electronics and SK Hynix; and (3) as a result, Micron's public statements were materially false and misleading at all relevant times. When the true details entered the market, the lawsuit claims that investors suffered damages. A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than March 25, 2019. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. If you wish to join the litigation, go to https://www.rosenlegal.com/cases-1491.html Laurence Rosen, Esq. Phillip Kim, Esq. Zachary Halper, Esq. The Rosen Law Firm, P.A. 275 Madison Avenue, 34thFloor New York, NY 10016 Telephone: (212) 686-1060 Toll Free: (866) 767-3653 Fax: (212) 202-3827 Website: www.rosenlegal.com Email: lrosen@rosenlegal.com pkim@rosenlegal.com zhalper@rosenlegal.com [GN] MIRACLE METHOD: Certification of Class Sought in Wolf Suit ---------------------------------------------------------- Maria Wolf moves the Court to certify the class described in the complaint of the lawsuit captioned MARIA WOLF, Individually and on Behalf of All Others Similarly Situated v. MIRACLE METHOD, INC. and BURAC & ASSOCIATES, INC., Case No. 2:19-cv-00242-JPS (E.D. Wisc.), and further asks that the Court both stay the motion for class certification and to grant the Plaintiff (and the Defendants) relief from the Local Rules setting automatic briefing schedules and requiring briefs and supporting material to be filed with the Motion. Dicta in the Supreme Court's decision in Campbell-Ewald Co. v. Gomez, left open the possibility that a defendant facing a class action complaint could moot a class representative's case by depositing funds equal to or in excess of the maximum value of the plaintiff's individual claim with the court and having the court enter judgment in the plaintiff's favor prior to the filing of a class certification motion, the Plaintiff asserts, citing Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016). To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion. Damasco v. Clearwire Corp., 662 F.3d 891, 896 (7th Cir. 2011), overruled on other grounds, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015) ("The pendency of that motion [for class certification] protects a putative class from attempts to buy off the named plaintiffs."). While the Seventh Circuit has held that the specific procedure described in Campbell-Ewald cannot force the individual settlement of a class representative's claims, the same decision cautions that other methods may prevent a plaintiff from representing a class, the Plaintiff tells the Court, citing Fulton Dental, LLC v. Bisco, Inc., No. 16-3574, 2017 U.S. App. LEXIS 10839 *9-10 (7th Cir. June 20, 2017). The Plaintiff asserts that one defendant has attempted a similar tactic by sending a certified check to the proposed class representative. Bonin v. CBS Radio, Inc., No. 16-cv-674-CNC (E.D. Wis.); see also Severns v. Eastern Account Systems of Connecticut, Inc., Case No. 15-cv-1168, 2016 U.S. Dist. LEXIS 23164 (E.D. Wis. Feb. 24, 2016). The Plaintiff is obligated to move for class certification to protect the interests of the putative class, the Plaintiff contends. As the Motion to certify a class is a placeholder motion as described in Damasco, the parties and the Court should not be burdened with unnecessary paperwork and the resulting expense when short motion to certify and stay should suffice until an amended motion is filed, the Plaintiff contends. The Plaintiff also asks to be appointed as class representative, and for the appointment of Ademi & O'Reilly, LLP, as class counsel.[CC] The Plaintiff is represented by: John D. Blythin, Esq. Mark A. Eldridge, Esq. Jesse Fruchter, Esq. Ben J. Slatky, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482-8000 Facsimile: (414) 482-8001 E-mail: jblythin@ademilaw.com meldridge@ademilaw.com jfruchter@ademilaw.com bslatky@ademilaw.com NATIONAL COLLEGIATE: Feldman Sues Over Injuries Sustained --------------------------------------------------------- Chet Feldman, individually and on behalf of all others similarly situated, Plaintiff, v. National Collegiate Athletic Association, Defendant, Case No. 1:19-cv-00729-RLY-TAB (S.D. Ind., February 18, 2019) seeks to obtain redress for injuries sustained a result of Defendant's reckless disregard for the health and safety of generations of Ohio University ("OU") student-athletes. Despite knowing for decades of a vast body of scientific research describing the danger of traumatic brain injuries ("TBIs") like those Plaintiff experienced, Defendant failed to implement adequate procedures to protect Plaintiff and other OU football players from the long-term dangers associated with them. They did so knowingly and for profit. As a direct result of Defendant's acts and omissions, Plaintiff and countless former OU football players suffered brain and other neurocognitive injuries from playing NCAA football. As such, Plaintiff brings this Class Action Complaint in order to vindicate those players' rights and hold the NCAA accountable, says the complaint. Plaintiff Chet Feldman is a natural person and citizen of the State of Ohio. NCAA is an unincorporated association with its principal place of business located at 700 West Washington Street, Indianapolis, Indiana 46206.[BN] The Plaintiff is represented by: Jeff Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Phone: 713.554.9099 Fax: 713.554.9098 Email: efile@raiznerlaw.com - and - Jay Edelson, Esq. Benjamin H. Richman, Esq. EDELSON PC 350 North LaSalle Street, 14th Floor Chicago, IL 60654 Phone: 312.589.6370 Fax: 312.589.6378 Email: jedelson@edelson.com brichman@edelson.com - and - Rafey S. Balabanian, Esq. EDELSON PC 123 Townsend Street, Suite 100 San Francisco, CA 94107 Phone: 415.212.9300 Fax: 415.373.9435 Email: rbalabanian@edelson.com NATIONAL COLLEGIATE: Graham Sues for Negligence of Athletes' Health ------------------------------------------------------------------- Anderson Graham, individually and on behalf of all others similarly situated, Plaintiff, v. National Collegiate Athletic Association, Defendant, Case No. 1:19-cv-00725-TWP-MJD (S.D. Ind., February 18, 2019) seeks to obtain redress for injuries sustained a result of the Defendant's reckless disregard for the health and safety of generations of West Alabama University ("WAU") student-athletes. Despite knowing for decades of a vast body of scientific research describing the danger of traumatic brain injuries ("TBIs") like those Plaintiff experienced, Defendant failed to implement adequate procedures to protect Plaintiff and other WAU football players from the long-term dangers associated with them. They did so knowingly and for profit. As a direct result of Defendant's acts and omissions, Plaintiff and countless former WAU football players suffered brain and other neurocognitive injuries from playing NCAA football. As such, Plaintiff brings this Class Action Complaint in order to vindicate those players' rights and hold the NCAA accountable, says the complaint. Plaintiff Anderson Graham is a natural person and citizen of the State of Alabama. NCAA is an unincorporated association with its principal place of business located at 700 West Washington Street, Indianapolis, Indiana 46206.[BN] The Plaintiff is represented by: Jeff Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Phone: 713.554.9099 Fax: 713.554.9098 Email: efile@raiznerlaw.com - and - Jay Edelson, Esq. Benjamin H. Richman, Esq. EDELSON PC 350 North LaSalle Street, 14th Floor Chicago, IL 60654 Phone: 312.589.6370 Fax: 312.589.6378 Email: jedelson@edelson.com brichman@edelson.com - and - Rafey S. Balabanian, Esq. EDELSON PC 123 Townsend Street, Suite 100 San Francisco, CA 94107 Phone: 415.212.9300 Fax: 415.373.9435 Email: rbalabanian@edelson.com NATIONAL COLLEGIATE: Harley Sues Over Disregard of Athlete's Health ------------------------------------------------------------------- Demetrics Harley, individually and on behalf of all others similarly situated, Plaintiff, v. National Collegiate Athletic Association, Defendant, Case No. 1:19-cv-00730-RLY-DLP (S.D. Ind., February 18, 2019) seeks to obtain redress for injuries sustained a result of the Defendant's reckless disregard for the health and safety of generations of Fayetteville State University ("FSU") student-athletes. Despite knowing for decades of a vast body of scientific research describing the danger of traumatic brain injuries ("TBIs") like those Plaintiff experienced, Defendant failed to implement adequate procedures to protect Plaintiff and other FSU football players from the long-term dangers associated with them. They did so knowingly and for profit. As a direct result of Defendant's acts and omissions, Plaintiff and countless former FSU football players suffered brain and other neurocognitive injuries from playing NCAA football. As such, Plaintiff brings this Class Action Complaint in order to vindicate those players' rights and hold the NCAA accountable, says the complaint. Plaintiff Demetrics Harley is a natural person and citizen of the State of South Carolina. NCAA is an unincorporated association with its principal place of business located at 700 West Washington Street, Indianapolis, Indiana 46206.[BN] The Plaintiff is represented by: Jeff Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Phone: 713.554.9099 Fax: 713.554.9098 Email: efile@raiznerlaw.com - and - Jay Edelson, Esq. Benjamin H. Richman, Esq. EDELSON PC 350 North LaSalle Street, 14th Floor Chicago, IL 60654 Phone: 312.589.6370 Fax: 312.589.6378 Email: jedelson@edelson.com brichman@edelson.com - and - Rafey S. Balabanian, Esq. EDELSON PC 123 Townsend Street, Suite 100 San Francisco, CA 94107 Phone: 415.212.9300 Fax: 415.373.9435 Email: rbalabanian@edelson.com NAVIOS MARITIME: Roberts Asserts Breach of Fiduciary Duties ----------------------------------------------------------- Norman Roberts, on behalf of himself and all those similarly situated, Plaintiff, v. Navios Maritime Holdings, Inc., Angeliki N. Frangou, Spyridon Magoulas, George Malanga, John Stratakis and Shunji Sasada, Defendants, Case No. 19-cv-00655 (S.D. N.Y., January 23, 2019), seeks damages to compensate all holders of Navios American Depository Shares who were improperly coerced into tendering their shares, and an order invalidating the consent solicitation, and such other and further relief for breach of fiduciary duties. Roberts claims that his fellow American Depository Share (ADS) holders were forced into giving up their right to receive accrued but unpaid dividends by tying the tender offer to exchange each series of ADS for a prorated allocation of a small cash payment and an unsecured debt instrument. Norman Roberts has been a holder of Series G ADS since November 26, 2014 and a holder of Series H ADS since December 10, 2014. Navios is a maritime shipping and logistics company that focuses on the transport of dry bulk commodities, including iron ore, coal and grain. Plaintiff is represented by: Jeroen van Kwawegen, Esq. Mark Lebovitch, Esq. Christoper J. Orrico, Esq. Tamara Gavrilova, Esq. BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP 1251 Avenue of the Americas New York, NY 10020 Tel: (212) 554-1400 NESTLE USA: Judge Dismisses 2 Child Labor Class Actions ------------------------------------------------------- Tina Bellon, writing for Reuters, reports that a federal judge in Boston on Jan. 30 dismissed two proposed class action lawsuits by consumers alleging Nestle USA Inc and The Hershey Co had failed to disclose child labor practices on their chocolate products' labels, saying their claims were not actionable under Massachusetts law. U.S. District Judge Allison Burroughs said that, while it was "beyond dispute" that the use of child and slave labor was widespread at cocoa plants in the Ivory Coast, the Massachusetts consumers filing the lawsuits failed to show the companies deceived them. [GN] NEVADA GOLD: Assad Files Securities Class Action ------------------------------------------------ George Assad, individually and on behalf of all others similarly situated v. Nevada Gold & Casinos, Inc., William J. Sherlock, Frank Catania, William G. Jayroe, Rudolph K. Kluiber, Shawn W. Kravets, and Francis M. Ricci, Case No. 2:19-cv-00026 (D. Nev., January 3, 2019), is brought against the Defendants for violations of the Securities Exchange Act of 1934. This action stems from a proposed transaction announced on September 18, 2018, pursuant to which Nevada Gold & Casinos, Inc. will be acquired by Maverick Casinos LLC and Maverick Casinos Merger Sub Inc. On December 3, 2018, the Defendants filed a proxy statement with the United States Securities and Exchange Commission in connection with the Proposed Transaction. The Plaintiff alleges that the Proxy Statement omits material information with respect to the Proposed Transaction, which renders the Proxy Statement false and misleading. The Plaintiff owns Nevada Gold common stock. The Defendant Nevada Gold is a developer, owner, and operator of nine gaming operations in Washington and a local casino in Henderson, Nevada. The Individual Defendants are members of the board of directors of Nevada Gold. [BN] The Plaintiff is represented by: Michael J. Gayan, Esq. KEMP, JONES & COULTHARD LLP Wells Fargo Tower, 17th Floor 3800 Howard Hughes Parkway Las Vegas, NV 89169 Tel: (702) 385-6000 NORTHSTAR REALTY: Court Denies Bid to Intervene in Boothe Suit -------------------------------------------------------------- In the case, JACK BOOTHE, individually and on behalf of all others similarly situated, Plaintiff, v. NORTHSTAR REALTY FINANCE CORP., INC., et al., Defendants, Civil No. JKB-16-3742 (D. Md.), Judge James K. Bredar of the U.S. District Court for the District of Maryland denied the Michael Bumgardner, William Pennington, John Wood, and Marjorie Wood ("Intervenors")'s motion to intervene and for relief from the final order and judgment. The case involved the merger between Colony Capital, Inc., NorthStar Asset Management Group, Inc., and NorthStar Realty Financial Corp. A number of public shareholders -- including the Plaintiff, a shareholder in NorthStar Realty Finance Corp. ("NRF") -- challenged the merger. In November 2017, the Plaintiff and the Defendants agreed to a settlement, terminating the case. Now, four former NRF shareholders move to intervene in the closed case, seeking relief from the judgment so that they can proceed on their own claims against the Defendants. In June 2016, Defendants entered into a planned merger agreement. The Defendants notified their shareholders of the proposed merger and requested their votes. Over the course of the next few months, several shareholders sued the Defendants for violating Section 14(a) and Section 20(a) of the Securities Exchange Act of 1934, and Securities Exchange Commission Rule 14a-9. The Plaintiff filed his complaint on Nov. 18, 2016. The Plaintiff alleged that the joint proxy statement, circulated to the shareholders, contained materially incomplete and misleading information concerning: (1) the financial projections for the Defendants, which were relied upon by the board in assessing the fairness of the Merger Consideration and by the Company's financial advisor; and (ii) certain information regarding the valuation analyses the financial advisor] performed in support of its fairness opinion. He sought class certification and an injunction against the merger. News of the Plaintiff's complaint became public immediately. The Plaintiff and the Defendants agreed to the proposed settlement in June 2017. The proposed settlement moved the Court to certify a non-opt out class of all NRF shareholders, preliminarily approve the terms of the settlement, approve the means of notifying the class of the settlement, and schedule a fairness hearing. The Court granted preliminary approval. The parties hired a legal administrative services company to mail notice of the proposed class action settlement to all the class members who could be identified. The Court held a fairness hearing. It determined that the settlement was fair and reasonable and, accordingly, approved it on Nov. 30, 2017. The settlement dismissed all claims against Defendants, and the Plaintiff agreed to a broad release such that all Class Members -- that is, all NRF shareholders -- were deemed to have forever released completely claims of any kind that related to the merger. Dvores appealed. The Intervenors seek to intervene in the case. In July 2018, they filed complaints in California courts, alleging that the Defendants violated different provisions of the Securities Exchange Act. At the end of July, Intervenors filed an amicus brief in Dvores' appeal, but Dvores settled in September. On November 13, the Intervenors moved to intervene, asserting that, as former NRF shareholders, they were members of the non-opt out class certified by the Court and, as such, their claims were released by the Plaintiff's settlement agreement. To this Court, the Intervenors argue that the judgment must be vacated or amended because the Plaintiff (1) failed to investigate claims that were subsequently released; (2) misrepresented to the Court the nature of the claims being released; (3) made misstatements in the Registration Statement; and (4) did not comply with the Private Securities Litigation Reform Act ("PSLRA"). Judge Bredar finds that the Intervenors fail to make the "strong showing" necessary to overcome the presumption that their post-judgment motion is untimely. In a class action the critical issue with respect to timeliness is whether the proposed intervenor moved to intervene as soon as it became clear that the interests of the unnamed class members would no longer be protected by the named class representatives. The Intervenors did not move when it became clear that the Plaintiffs were not pursuing Intervenor's claims and, in fact, were releasing those exact claims. The Intervenors do not meet the threshold requirement of filing a timely motion for intervention of right. The Judge concludes that Intervenors fail to show that the Plaintiff was inadequate in his compliance with the PSLRA, his investigation of potential claims, and his representations to the Court. Therefore, although the he denies intervention of right as untimely, the Judge does not deny it on that ground alone. Turning to the substantive elements, he concludes that Intervenors fail to establish inadequate representation too. Because the Judge denies intervention, he must deny relief from the judgment as well. For the foregoing reasons, Judge Bredar denied the Intervenors' motion to intervene and for relief from the final order and judgment. A full-text copy of the Court's Feb. 12, 2019 Memorandum is available at https://is.gd/w7xnzJ from Leagle.com. Jack Boothe, Individually and on Behalf of All Others Similarly Situated, Plaintiff, represented by Yelena Trepetin -- trepetin@browerpiven.com -- Brower Piven A Professional Corporation & James Milligan Wilson, Jr., Faruqi and Faruqi LLP, pro hac vice. Northstar Realty Finance Corp., David T. Hamamoto, Judith A. Hannaway, Wesley D. Minami, Louis J. Paglia, Gregory Rush & Charles W. Schoenherr, Defendants, represented by Elizabeth Catherine Rinehart -- lcrinehart@venable.com -- Venable LLP & Andrew Gendron -- agendron@Venable.com -- Venable LLP. Howard B. Hoffman, Interested Party, pro se. Michael Bumgardner, William Pennington, John Wood & Marjorie Wood, Intervenors, represented by Patrick C. Smith -- psmith@dehay.com -- Dehay and Elliston LLP. OCWEN LOAN: Stromberg Seeks Initial Settlement Approval ------------------------------------------------------- In the class action lawsuit BONNIE LYNNE STROMBERG, on behalf of herself and all others similarly situated, the Plaintiff, vs. OCWEN LOAN SERVICING, LLC, MORGAN STANLEY PRIVATE BANK, N.A., RBS CITIZENS, N.A., and DOE the Defendants 1-55, the Defendants, Case No. 3:15-cv-04719-JST (N.D. Cal.), the Plaintiff will move the Court on March 28, 2019, for an order: 1. granting preliminary approval of Stipulation and Settlement Agreement pursuant to which the parties proposed to settle this action on a class wide basis; 2. finding that final approval of the proposed Settlement under Rule 23(e)(2) and certification of the class for purposes of judgment on the proposed Settlement is likely; 3. directing Notice to the Settlement Class in the form and manner set forth in the Settlement Agreement or in such other form and manner determined by the Court to be appropriate pursuant to Fed. 13 R. Civ. P. 23(c)(2) and (e)(1); and 4. scheduling a fairness hearing consistent with the time frame and process set forth in the Settlement Agreement. The case is a class action brought by the Plaintiff on behalf of herself and all similarly situated persons against the Defendants. The Plaintiff alleges that each of these companies were beneficiaries or assignees of loans secured by deeds of trust on real property located in California and serviced by Ocwen, and that they violated California Civil Code Section 2941(b) by failing to timely execute and deliver to the trustee those documents necessary to cause a reconveyance of the deed of trust to be recorded. By her complaint, the Plaintiff seeks statutory damages on behalf of herself and class members in the amount of $500 per loan, as provided for by the statute. Counsel for the Plaintiff: Todd M. Schneider, Esq. Mark T. Johnson, Esq. Kyle G. Bates, Esq. SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP 2000 Powell Street, Suite 1400 Emeryville, CA 94608 Telephone: 415-421-7100 Facsimile: 415-421-7105 E-mail: tschneider@schneiderwallace.com mjohnson@schneiderwallace.com - and - Todd S. Collins, Esq. Eric Lechtzin, Esq. BERGER MONTAGUE PC 1818 Market Street, Suite 3600 Philadelphia, PA 19103 Telephone: 215-875-3000 Facsimile: 215-875-4604 E-mail: tcollins@bm.net elechtzin@bm.net - and - Seth R. Lesser, Esq. Kurt B. Olsen, Esq. KLAFTER OLSEN & LESSER LLP Two International Drive, Suite 350 Rye Brook, NY 10573 Telephone: (914) 934-9200 Facsimile: (914) 934-9220 - and - Charles Delbaum, Esq. NATIONAL CONSUMER LAW CENTER Winthrop Square, 4th Floor Boston, MA 02110 Telephone: 617 542-8010 Facsimile: 617 542-8033 E-mail: cdelbaum@nclc.org ORRSTOWN FINANCIAL: Not Compelled to Produce Docs in SEPTA Suit --------------------------------------------------------------- In the case, SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, Plaintiff, v. ORRSTOWN FINANCIAL SERVICES, INC., et al., Defendants, Case No. 1:12-cv-00993 (M.D. Pa.), Judge Yvette Kane of the U.S. District Court for the Middle District of Pennsylvania denied Plaintiff SEPTA's Motion to Compel Production of Documents withheld by the Orrstown Defendants, as well as by the third parties. The case is a purported class action alleging securities violations in connection with Orrstown's early 2010 public offering of approximately 1.4 million shares of Orrstown common stock, which raised almost $40 million. Following a series of revelations regarding Orrstown's financial condition, Orrstown reported significant losses for the fourth quarter of 2011, and on March 15, 2012, filed its 2011 Annual Report, which disclosed that it had a "material weakness" in its internal controls and had "failed to implement a structured process with appropriate controls to ensure that updated loan ratings were incorporated timely into the calculation of the Allowance for Loan Losses." Orrstown further admitted that, as of March 2012, it had failed to fully remediate its material weakness in its internal control over financial reporting relating to loan ratings and its impact on the allowance for loan losses. On March 23, 2012, Orrstown and its Board of Directors revealed that they had entered into an agreement with the Federal Reserve Bank of Philadelphia, and a consent order with the Commonwealth of Pennsylvania, Department of Banking, requiring them, inter alia, to revise their underwriting and credit administration policies and strengthen their credit risk management practices. On May 12, 2012, SEPTA, on behalf of two classes, filed the purported class action pursuant to Federal Rule of Civil Procedure 23(a) and (b)(3) against the Orrstown Defendants and several additional individual Defendants, as well as Orrstown's auditor and underwriters involved in the subject stock offering. On March 4, 2013, the Plaintiff filed an amended complaint, alleging that the Defendants issued materially untrue and/or misleading statements and omissions in violation of the Securities Act of 1933 and the Exchange Act of 1934. The amended complaint asserted claims on behalf of two classes: (1) the "Securities Act Class," which consists of persons and/or entities who purchased Orrstown common stock pursuant to, or traceable to, Orrstown's Feb. 8, 2010 registration statement and March 23, 2010 prospectus supplement issued in connection with Orrstown's secondary stock offering in March 2010 and were damaged thereby; and (2) the "Exchange Act Class," which consists of all persons or entities who purchased Orrstown common stock on the open market between March 15, 2010 and April 5, 2012 and were damaged thereby. SEPTA acquired Orrstown stock pursuant to the offering documents for the March 2010 offering and also purchased Orrstown common stock on the open market during the class period. After extensive briefing, the Court dismissed SEPTA's Securities and Exchange Act claims against all the Defendants for failure to state a claim upon which relief may be granted. With permission of the Court, SEPTA filed a Second Amended Complaint ("SAC") against the same Defendants, which focused exclusively on alleged materially false and/or misleading statements made by the Defendants in the offering documents and through the class period pertaining to the effectiveness of the Orrstown Defendants' internal controls over underwriting of loans, risk management, financial reporting and compliance with banking regulations. All the Defendants filed motions to dismiss. On Dec. 7, 2016, the Court granted the auditor and underwriters' motions to dismiss, and granted in part and denied in part the Orrstown Defendants' and additional Individual Defendants' motion to dismiss. In connection with its decision, the Court took judicial notice of the SEC Order and its findings, which the Court determined support the SAC's allegations of misstatement or omission beginning in the second quarter of 2010 through the end of 2011. Accordingly, the Court concluded that the allegations of the SAC, coupled with the SEC Order, support an inference that Orrstown failed to maintain an adequate system of internal accounting controls through the relevant time period -- second quarter 2010 through 2011 -- and that such failure resulted in inaccuracies in financial reporting during that time, including (1) incorrect loan risk ratings; (2) incorrect disclosures of impaired loans; (3) incorrect calculations and disclosures of loan losses; (4) incorrect application of newly issued accounting pronouncements; and (5) the lack of action to remedy accounting problems after being alerted to them. On Jan. 18, 2017, the Orrstown Defendants served upon SEPTA Initial Disclosures listing the Board of Governors of the Federal Reserve System ("FRB") and the Pennsylvania Department of Banking ("PADOB") regulatory reviews as evidence it would use to support its defenses to SEPTA's claims. On Feb. 2, 2017, SEPTA served document requests on the Orrstown Defendants pertaining to the Regulators' Enforcement Actions against the Orrstown Defendants. Shortly thereafter, the Orrstown Defendants communicated to SEPTA their stated intent to withhold documents from production because they potentially contain confidential supervisory information ("CSI"), which is protected from disclosure without the express written consent of the FRB. On Feb. 14, 2017, SEPTA sent a formal waiver request to the FRB pursuant to 12 C.F.R. Section 261.22, seeking access to the withheld documents. That Request for Production, dated Feb. 2, 2017, specifically seeks the following categories of information, covering the period from January 1, 2009, to the date of the Request for Production: 1. All documents that you produced to the SEC in connection with the investigation and proceedings that culminated in the SEC Order. 2. All documents produced by any person to you or the SEC in connection with the investigation and proceedings that culminated in the SEC Order. 3. All transcripts or recordings of any depositions or interviews of witnesses taken during the investigation and proceedings that culminated in the SEC Order, including all documents identified, used or marked as exhibits during those depositions or interviews. 4. All documents that the SEC delivered to you during the investigation and proceedings that culminated in the SEC Order. 5. All documents that were sent to the SEC or delivered by you to the SEC subsequent to the issuance of the SEC Order with respect to the SEC Order. 6. All communications and documents that relate to or reflect any communications that you had internally or with any other person concerning the SEC investigation and proceedings that culminated in the SEC Order. 7. The joint reports of examination and all documents concerning the joint reports of examination. 8. All documents that you produced to the Federal Reserve in connection with the Joint Examination. 9. All documents produced by any person to you or the Federal Reserve in connection with the Joint Examination. 10. All documents that the Federal Reserve delivered to you in connection with the Joint Examination. 11. All documents concerning the Written Agreement. 12. All documents that were sent to the Federal Reserve or delivered by you to the Federal Reserve subsequent to the issuance of the Written Agreement with respect to the Written Agreement. 13. The Stipulation of Consent and Entry of Order, and any Documents concerning the Stipulation of Consent and Entry of Order. 14. All documents that you produced to the Department of Banking in connection with the Joint Examination. 15. All documents produced by any person to you or the Department of Banking in connection with the Joint Examination. 16. All documents that the Department of Banking delivered to you in connection with the Joint Examination. 17. All documents concerning the Consent Order. 18. All documents that were sent to the Department of Banking or delivered by you to the Department of Banking subsequent to the issuance of the Consent Order with respect to the Consent Order. 19. All transcripts or recordings of any depositions or interviews of witnesses taken in connection with the Joint Examination which culminated in the Enforcement Action, including all Documents identified, used or marked as exhibits during those depositions or interviews. 20. All communications and documents that relate to or reflect any communications that you had internally or with any other person concerning the: (a) Joint Reports of Examination; (b) Stipulation of Consent and Entry of Order; (c) Joint Examination; (d) Enforcement Actions; (e) Written Agreement; and (f) Consent Order. On March 1, 2017, the FRB responded to a Feb. 2, 2017 letter and follow-up Feb. 13, 2017 email from the Orrstown Defendants requesting permission to produce to SEPTA all documents Orrstown previously produced to the SEC. In that letter, the FRB requested that the Orrstown Defendants produce to the FRB a log reflecting the information designated as CSI by Orrstown and produced to the SEC in connection with its investigation. In its Feb. 9, 2018 status report filed with the Court, SEPTA reported that after receiving the CSI log in December 2017, it discovered that a number of the documents on the log contained only "partial" CSI and that others were publicly disseminated documents. Accordingly, the Orrstown Defendants subsequently produced to SEPTA redacted versions of partial-CSI documents and removed additional documents from the log. n March 2018, the counsel for the parties and the Regulators participated in a conference call to discuss the Regulators' review of documents the Orrstown Defendants had designated as containing full or partial CSI. As a result of the discussion that occurred, the Regulators requested re-production of the potential CSI documents in two groups -- the first containing the full CSI documents, and the second containing the redacted, partial-CSI documents. Accordingly, on March 27, 2018, the Orrstown Defendants produced the 3,398 full CSI documents, comprising 17,419 pages, to the Regulators. On April 3, 2018, the Orrstown Defendants produced the partial-CSI, redacted documents, which consisted of 649 documents comprising 48,984 pages, to the Regulators. Thereafter, the parties filed a Joint Status Report with the Court on May 2, 2018, reporting that the parties had participated in an April 2018 conference call with the Regulators to discuss the status of the Regulators' review of the CSI documents. (Doc. No. 153 at 3-4.) In the meantime, on June 18, 2018, Katherine H. Wheatley, Associate General Counsel to the FRB, sent a detailed letter to SEPTA's counse, formally responding to SEPTA's Feb. 14, 2017 Request seeking the FRB's waiver of any applicable bank examination privilege and approval of the Orrstown Defendants' production of CSI to SEPTA. In the Wheatley letter, the FRB stated its position that SEPTA's Feb. 14, 2017 Request does not comply with the requirements of the Board's regulations regarding requests for access to confidential supervisory information, and therefore, the FRB is unable to process SEPTA's request in its current form. Following its receipt of the Wheatley letter, SEPTA filed the instant Motion to Compel Production of Documents, with supporting brief and exhibits on Aug. 9, 2018. The Orrstown Defendants filed a brief in response to the Motion to Compel on Aug. 23, 2018. Thereafter, the FRB filed an unopposed Motion to Intervene in the action for the limited purpose of opposing SEPTA's Motion to Compel. Ultimately, the Court issued an Order approving a Stipulation filed by the parties permitting the intervention of the FRB and setting a briefing schedule on SEPTA's Motion to Compel. Upon careful consideration of the briefs of the parties, the supporting documents filed in connection with those briefs, including the Wheatley letter, and the relevant authorities, Judge Kane is unpersuaded by SEPTA's argument that the Court should treat the FRB's refusal to process SEPTA's waiver Requests in their current form, as articulated by the Wheatley letter, as tantamount to a denial of those Requests and an assertion of the bank examination privilege over the entire universe of potentially CSI-designated documents sought by SEPTA from the Orrstown Defendants and third parties. Rather, she finds that, by its refusal to respond to the Wheatley letter and engage with the FRB in an effort to provide the necessary information for the FRB to complete its review of the relevant documents, SEPTA has failed to exhaust its administrative remedies. Accordingly, its Motion to Compel will be denied on that basis. The Judge notes that discovery in the case has been pending for over two years, and is now at a standstill awaiting the resolution of the issue. She expects that the good faith efforts of SEPTA to engage with the FRB as outlined in the Wheatley letter will be met with the FRB's timely and good faith review of the relevant documents and prompt final action -- whether it be assertion or waiver of the bank examination privilege -- on SEPTA's Requests. For all of the reasons discussed, Judge Kane denied SEPTA's Motion to Compel. An Order consistent with the Memorandum follows. A full-text copy of the Court's Feb. 12, 2019 Memorandum is available at https://is.gd/OJjNHv from Leagle.com. Southeastern Pennsylvania Transportation Authority, on behalf of itself and all others similarly situated, Plaintiff, represented by Tiffany J. Cramer -- tiffanycramer@chimicles.com -- Chimicles Schwartz Kriner & Donaldson-Smith LLP, Timothy N. Mathews -- TimothyMathews@chimicles.com -- Chimicles Schwartz Kriner & Donaldson-Smith LLP, Benjamin F. Johns -- benjohns@chimicles.com -- Chimicles Schwartz Kriner & Donaldson-Smith LLP, Kimberly M. Donaldson Smith -- kimdonaldson@chimicles.com -- Chimicles Schwartz Kriner & Donaldson-Smith LLP & Nicholas E. Chimicles -- nick@chimicles.com -- CHIMICLES & TIKELLIS LLP. Orrstown Financial Services, Inc., Orrstown Bank, Thomas R. Quinn, Jr., Bradley S. Everly & JEFFREY W. EMBLY, Defendants, represented by David J. Creagan, White and Williams, LLP, David E. Edwards, White and Williams LLP & Justin K. Fortescue, White and Williams LLP. Board of Governors of the Federal Reserve System, Amicus, represented by George Michael Thiel, U.S. Attorney's Office. OXNARD SCHOOL: Court Denies Bid to Certify Disabled Students Class ------------------------------------------------------------------ In the class action lawsuit J.R., the Plaintiff, v. Oxnard School District, et al., the Defendants, Case No. LA CV17-04304 JAK (FFMx), the Hon. Judge John A. Kronstadt entered an order on Feb. 15, 2019: 1. denying, without prejudice, a motion to certify a class consisting of: "all students in Oxnard School District who have or may have disabilities and who have been or will be subject to the District's policies and procedures regarding identification and evaluation of students for purposes of providing services or accommodations under the Individuals with Disabilities Education Act, Section 504 of the Rehabilitation Act and/or the Americans with Disabilities Act"; and 2. granting a motion to dismiss without prejudice. The Court said, "any amended complaint shall be filed no later than March 8, 2019. The Plaintiffs have not demonstrated that PLN's members would have standing to sue in their own right. . . . PLN members I.B. and W.H. do not have such standing. The Plaintiffs identify two additional PLN members, M.Y. and H.V., who were affected by the District's Child Find policies but do not have standing to sue. Plaintiffs have not identified any other members of PLN whom they contend would have standing. PLN is a small organization whose members are approximately 15-20 families. The Plaintiffs selected four of those families to provide declarations in support of the Motion for Class Certification. None of those families would have standing to sue in their own right. In light of the small membership of PLN, and the reasonable inference that Plaintiffs did not deliberately identify only those member families without standing in support of their associational standing argument, it has not been shown that any individual member of PLN would have standing to sue in his own right. Accordingly, the Plaintiffs have not demonstrated that PLN has direct or associational standing. For the foregoing reasons, the proposed class representatives do not have Article III standing to bring the class claims under the current class definition. Any amended complaint shall address the deficiencies in Article III standing identified in this Order. The Plaintiffs may consider narrowing the class claims and the class definition to correspond to the claims of the proposed class representatives, creating sub-classes, and/or adding new proposed class representatives with standing to bring the broader set of claims."[CC] P24 LLC: Cajina Suit Alleges FLSA Violations -------------------------------------------- Alexander Cajina, and all others similarly situated v. P24, LLC dba PIOLA, Case No. 1:19-cv-20033 (S.D. Fla., January 3, 2019), is brought against the Defendant for violation of the Fair Labor Standards Act. The Plaintiff seeks to recover monetary damages, liquidated damages, interests, costs and attorney's fees for the Defendant's violation of the overtime provisions and for retaliation. The Plaintiff also seeks unpaid wages under Florida law. The Plaintiff is a resident of Miami-Dade County, Florida and worked for the Defendant as a kitchen employee or pizza maker. The Plaintiff was employed from February 13, 2017 through December 4, 2018. The Defendant PIOLA is a Florida limited liability company which regularly conducted business within the Southern District of Florida as an Italian restaurant with various locations in South Florida, including the location where Plaintiff worked in Brickell. [BN] The Plaintiff is represented by: Isaac Mamane, Esq. MAMANE LAW LLC 10800 Biscayne Blvd., Suite 350A Miami, FL 33161 Tel: (305) 773-6661 E-mail: mamane@gmail.com PAPA JOHN'S: Faces Class Action Over "No-Poach" Policy ------------------------------------------------------ Brian Flood, writing for Bloomberg Law, reports that three separate lawsuits challenging "no-poach" language in Papa John's franchise agreements will be combined into a single putative class action, the U.S. District Court for the Western District of Kentucky ruled Jan. 28. Under the company's standard franchise agreement, franchisees agreed not to solicit or induce employees of Papa John's, its affiliates, or its other franchises to leave their positions. Three employees brought antitrust suits, saying this provision artificially depressed their wages and limited their job opportunities. [GN] PAPA JOHN'S: Faces Hubbard Wage and Hour Class Suit in Kentucky --------------------------------------------------------------- AMANDA HUBBARD, AARON NELSON and JOSHUA BOYLAND, for themselves and all others similarly situated v. PAPA JOHN'S INTERNATIONAL, INC., Case No. 5:19-cv-00022-TBR (W.D. Ky., February 12, 2019), seeks to redress PJI's alleged systematic policy and practice of paying its delivery drivers net hourly wages that are well below the minimum wage mandated by Kentucky's wage and hour law, the Colorado Minimum Wage of Workers Act and the Missouri Minimum Wage Law. PJI is a Delaware corporation that maintains its primary place of business within this District and operates numerous Papa John's stores within this District. PJI owns and operates at least 708 Papa John's stores in various states, including numerous stores in Kentucky, Colorado and Missouri. That total includes both stores wholly owned and operated by PJI and other stores operated by PJI as "joint ventures."[BN] The Plaintiffs are represented by: David Suetholz, Esq. J. Gerard Stranch IV, Esq. BRANSTETTER, STRANCH & JENNINGS, PLLC 223 Rosa L. Parks Avenue, Suite 200 Nashville, TN 37203 Telephone: (877) 369-0267 Facsimile: (615) 255-5419 E-mail: davids@bsjfirm.com gerards@bsjfirm.com - and - Jeremiah Frei-Pearson, Esq. D. Greg Blankinship, Esq. Andrew C. White, Esq. FINKELSTEIN, BLANKINSHIP, FREI-PEARSON & GARBER, LLP 445 Hamilton Avenue, Suite 605 White Plains, NY 10601 Telephone: (914) 298-3281 E-mail: jfrei-pearson@fbfglaw.com gblankinship@fbfglaw.com awhite@fbfglaw.com - and - Mark Potashnick, Esq. WEINHAUS & POTASHNICK, LLP 11500 Olive Blvd., Suite 133 St. Louis, MO 63141 Telephone: (314) 997-9150 Facsimile: (314) 997-9170 E-mail: markp@wp-attorneys.com - and - Richard M. Paul III, Esq. PAUL, LLP 601 Walnut Street, Suite 300 Kansas City, MO 64106 Telephone: (816) 984-8100 E-mail: Rick@PaulLLP.com - and - David J. Cohen, Esq. STEPHAN ZOURAS, LLP 604 Spruce Street Philadelphia, PA 19106 Telephone: (215) 873-4836 E-mail: dcohen@stephanzouras.com PATRIOT LAND: Court Denies Dismissal in A. Conover's RESPA Suit --------------------------------------------------------------- The United States District Court for the District of New Jersey, Camden Vicinage, issued an Opinion denying Defendant's Motion to Dismiss in the case captioned ANNA CONOVER, PARRISH AND JACQUELINE SHERIDAN, BRYAN AND JACQUELINE VAN VELSON, Plaintiffs, v. PATRIOT LAND TRANSFER, LLC, WELLS FARGO BANK, N.A., Defendants. Civil No. 17-4625(RMB/JS). (D.N.J.). Plaintiffs Anna Conover, Parrish and Jacqueline Sheridan, and Bryan and Jacqueline Van Velson brought this putative class action against Defendants Patriot Land Transfer, LLC (Patriot) and Wells Fargo Bank, N.A. (Wells Fargo), alleging violations of the Real Estate Settlement Procedures Act (RESPA). Wells Fargo moves to dismiss the Amended Complaint on three grounds, arguing that (1) the Plaintiffs' claims are barred by the statute of limitations, (2) the Amended Complaint fails to state a claim under Fed R. Civ. P. 12(b)(6) and (3) that the Plaintiffs' claims are too individualized to warrant class treatment. Statute of Limitations First, the Defendant argues that the Plaintiffs' RESPA claims are barred by RESPA's one-year statute of limitations, which requires that actions brought pursuant to Section 2607 be asserted within one year from the date of the occurrence of the violation. Since the alleged RESPA violations occurred in 2014, the closing date of Plaintiffs' mortgage loans, the one-year statute of limitations would have expired in 2015. Because Plaintiffs did not file this action until June 23, 2017, Wells Fargo contends that Plaintiffs' claims are time-barred. The Plaintiffs do not dispute RESPA's one-year statute of limitations, however, the Plaintiffs claim an entitlement to equitable tolling. Under Third Circuit precedent, equitable tolling permits a plaintiff to sue after the statutory time period for filing a complaint has expired under three circumstances, (1) the defendant has actively misled the plaintiff respecting the plaintiff's cause of action (2) the plaintiff in some extraordinary way has been prevented from asserting his or her rights or (3) the plaintiff has timely asserted his or her rights mistakenly in the wrong forum. In this case, the Plaintiffs argue for equitable tolling on the basis of fraudulent concealment, alleging that the Defendants' active misleading prevented Plaintiffs from having notice of facts giving rise to their RESPA claims. The fraudulent concealment doctrine permits plaintiffs to toll the statute of limitations in circumstances when the accrual date of a claim has passed but the plaintiff's cause of action has been obscured by the defendant's conduct. However, Plaintiff has the burden of proving fraudulent concealment, which requires a three-part showing: (1) that the defendant actively misled the plaintiff (2) which prevented the plaintiff from recognizing the validity of her claim within the limitations period and (3) where the plaintiff's ignorance is not attributable to her lack of reasonable due diligence in attempting to uncover the relevant facts. The Defendant argues that the Plaintiffs are not entitled to equitable tolling because an alleged failure to disclose information is simply not enough for fraudulent concealment. The Defendant argues that under Third Circuit precedent, a plaintiff must point to some additional affirmative fraudulent act that perpetuates concealment; inaction or silence by the lender is not sufficient to show fraudulent concealment to toll equitably the limitations period. The Defendant further contends that Plaintiffs' allegations concerning the HUD-1 form and the Good Faith Estimate cannot possibly amount to fraudulent concealment, because there is no proper place on a HUD-1 statement for disclosure of the fact, if true, that Patriot was providing Wells Fargo with marketing lists. Contrary to the Defendant's characterization of the Plaintiffs' claims, the Plaintiffs do not allege mere non-disclosure of the kickback agreement. Rather, the Plaintiffs allege that the Defendants chose to omit the kickbacks and the facts of the Defendants' coordinated business relationship under the Patriot Kickback Agreement from the Plaintiffs' loan documents and that the purpose of these omissions was to conceal the kickbacks and Defendants' coordinated business relationship under the Patriot Kickback Agreement Such an allegation of affirmative concealment goes beyond mere non-disclosure and is, therefore, sufficient to state a claim for equitable tolling. Failure to State a Claim The Defendant argues that Plaintiffs' theory of liability is implausible and fails to state a claim under RESPA, which prohibits the acceptance of any fee, kickback, or thing of value pursuant to any agreement or understanding that business incident to or a part of a real estate settlement service involving a federally related mortgage loan shall be referred to any person. The Defendant contends that Plaintiffs' allegation falls under RESPA's safe harbor provision, precluding a cause of action for fees charged for services that were actually rendered. Therefore, Defendant claims that Plaintiffs' claim fails because it involves fees that were charged to Plaintiffs in exchange for services actually performed. Defendant further argues that Plaintiffs fail to draw a connection between the extra fees for title and closing services, and the alleged kickback payments from Patriot to Wells Fargo. The Defendant's argument is misplaced. The Plaintiffs' cause of action is premised upon the existence of a kickback arrangement between the Defendants. To that end, the Plaintiffs alleged that such an arrangement existed in the Amended Complaint. The Plaintiffs' allegation, that they were charged more for closing and settlement services than they would have been without a kickback arrangement, is relevant only to the extent it impacts damages. Although Defendant's argument raises a potentially relevant point regarding Plaintiffs' ability, or lack thereof, to recover damages, Defendant has already conceded Plaintiffs' standing in this case. Class Action Claims The Defendant moves to dismiss the class action allegations, arguing that the Plaintiffs' equitable tolling claim necessitates individualized inquiries, which are inappropriate for class treatment. As an initial matter, this motion is premature at this stage of the proceedings. The arguments raised by Defendant would be more appropriately addressed in response to a motion for class certification. Therefore, the motion to dismiss the class allegations will also be denied. Wells Fargo's Motion to Dismiss the First Amended Complaint will be denied without prejudice. A full-text copy of the District Court's January 31, 2019 Opinion is available at https://tinyurl.com/ybqvzuve from Leagle.com. ANNA CONOVER, PARRISH SHERIDAN, JACQUELINE SHERIDAN, BRYAN VAN VELSON & JACQUELINE VAN VELSON, Plaintiffs, represented by BRUCE DANIEL GREENBERG -- bgreenberg@litedepalma.com -- LITE DEPALMA GREENBERG, LLC. PATRIOT LAND TRANSFER, LLC, Defendant, represented by BENJAMIN W. SPANG -- bspang@dilworthlaw.com -- DILWORTH PAXSON LLP & JERRY R. DESIDERATO -- JDeSiderato@dilworthlaw.com -- DILWORTH PAXSON LLP. WELLS FARGO BANK, N.A., Defendant, represented by JENNIFER JANEIRA NAGLE -- jennifer.nagle@klgates.com -- K&L GATES LLP. PORT AUTHORITY OF NEW YORK: Court Narrows Claims in Talarico Suit ----------------------------------------------------------------- In the case, CHARLENE TALARICO, individually and on behalf of a class of all others similarly situated, Plaintiff, v. THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY, Defendant, Case No. 18-CV-909 (JPO) (S.D. N.Y.), Judge J. Paul Oetken of the U.S. District Court for the Southern District of New York granted in part and denied in part Port Authority's motion to dismiss certain of Talarico's claims and to strike all of her class allegations. Talarico has filed the putative class action against her employer, the Port Authority, alleging that the Port Authority has engaged in a practice of filming its employees' private medical examinations without their knowledge or consent. Talarico claims that the alleged practice violates the Fourth and Fourteenth Amendments of the U.S. Constitution, as well as the analogous guarantees of the New York State Constitution, and she seeks individual and class-wide relief pursuant to 42 U.S.C. Section 1983 and New York law. Talarico numbers among the Port Authority's roughly 8,000 employees. On Aug. 4, 2016, after receiving a hand injury in an altercation with a coworker, Talarico visited one of the Medical Services Offices that the Port Authority provides for the exclusive use of its workers. There, she received an examination from a Port Authority physician in a private examination room. Following this incident, Talarico initiated legal proceedings in a New Jersey municipal court against the coworker who had injured her. During the course of discovery, the Port Authority allowed Talarico to view several video recordings, one of which showed Talarico's Aug. 4, 2016 medical examination in its entirety. Talarico had not previously been aware of the recording, and she had never consented to having her examination recorded. On Feb. 1, 2018, Talarico initiated the instant lawsuit against the Port Authority on behalf of herself and a proposed class of all other employees who had been and would be subjected to "covert video surveillance" during a medical examination at any of the Port Authority's Medical Services Offices. Her four-count complaint claims that the Port Authority's alleged practice of covertly filming its employees' medical examinations without their consent violates the guarantees against unreasonable searches enshrined in the Fourth Amendment of the U.S. Constitution (Count One) and Article I, Section 12, of the New York State Constitution (Count Three), and that the practice also violates the privacy guarantees of the Fourteenth Amendment of the U.S. Constitution (Count Two) and Article I, § 6, of the New York State Constitution (Count Four). Talarico pursues her federal claims by way of Section 1983, a remedial federal civil-rights statute, and she pursues her state-law claims directly under the New York State Constitution. In addition to class-wide relief, Talarico seeks compensatory and punitive damages on her own behalf. On March 27, 2018, the Port Authority moved to dismiss or strike several of Talarico's claims. Specifically, it argues that Talarico's Section 1983 claims, as well as her claim for punitive damages, must be dismissed in their entirety for failure to state a viable legal claim. To the extent that Talarico has stated a claim under federal law, the Port Authority further argues that her state-law claims must be dismissed in light of the available federal remedy. Finally, it moves to dismiss or strike all of Talarico's class claims. Judge Oetken finds that (i) Talarico has therefore adequately alleged an official policy or custom; (ii) to the extent that the type of covert surveillance alleged violates the Fourth Amendment, he easily concludes that Talarico has plausibly alleged that she was not alone in suffering such a violation; (iii) Talarico is entitled to discovery on her Fourteenth Amendment claims; (iv) because Section 1983 offers an adequate remedy to redress any injury inflicted by the specific conduct alleged, then, the New York State Constitution does not itself provide a cause of action; and (v) punitive damages are not available against the Port Authority. Having concluded that Talarico is entitled to proceed solely on her Section 1983 claims, the Judge now considers the Port Authority's motion to strike Talarico's class allegations insofar as it relates to these claims. He finds that the complaint does plausibly allege that putative class members other than Talarico have a right to relief under Section 1983. Therefore, to the extent that the Port Authority argues that Talarico's class allegations should be struck for failure to articulate more than the sort of "conclusory" claims that are properly addressed at the pleadings stage, that argument fails. He therefore will deny the Port Authority's motion to strike Talarico's class claims, albeit without prejudice to any arguments the Port Authority may wish to renew at the class certification stage. For the foregoing reasons, Judge Oetken granted in part and denied in part the Port Authority's partial motion to dismiss. Specifically, he granted the motion with respect to all statelaw claims (Counts Three and Four) and all claims for punitive damages. In all other respects, he denied the motion. s to the remaining claims (Counts One and Two), the Port Authority's motion to strike the class allegations is denied, and the Port Authority's motion for an extension of time to respond is granted. The Port Authority will file its answer to the remaining claims within 14 days after the date of the Opinion and Order. The Clerk of Court is directed to close the motion at Docket Number 15. A full-text copy of the Court's Feb. 12, 2019 Opinion and Order is available at https://is.gd/ui0M6E from Leagle.com. Charlene Talarico, individually and on behalf of a class of all others similarly situated, Plaintiff, represented by William George Schimmel -- wschimmel@weissmanmintz.com -- Weissman & Mintz LLC. The Port Authority of New York and New Jersey, Defendant, represented by David Robert Kromm, Law Office of James M. Begley & Lauren T. Grodentzik, The Port Authority of New York and New Jersey. PROFESSIONAL TRANSPORTATION: Drivers' Suit Transferred to S.D. Ind. ------------------------------------------------------------------- The United States District Court for the Southern District of Illinois issued a Memorandum and Order granting in part Defendant's Motion to Dismiss or Transfer Venue in the case captioned YUWSUF ABDUL-GHAFOOR, individually and on behalf of similarly situated persons, et al., Plaintiffs, v. PROFESSIONAL TRANSPORTATION, INC. and RONALD D. ROMAIN, Defendants. Case No. 17-CV-1105-SMY-GCS. (S.D. Ill.). Now pending before the Court is Defendants' Motion to Dismiss for Improper Venue or to Transfer Venue to the Southern District of Indiana. The 1,464 Plaintiffs are current or former employees of Professional Transportation, Inc. (PTI) who worked as over-the-road drivers. PTI is in the business of providing interstate and intrastate ground transportation for railroad crews in 30 states plus the District of Columbia. The Plaintiffs filed this collective action pursuant to the Fair Labor Standards Act (FLSA), alleging that they are owed minimum wage and overtime pay for various work-related activities. The venue statute provides, in relevant part: "(b) Venue in general. A civil action may be brought in (1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated or(3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action." For purposes of the statute, a natural person is a resident of the state where he is domiciled. The parties agree that Romain is domiciled in Evansville, Indiana which is located in the Southern District of Indiana. Thus, the Plaintiff argues that Romain is subject to this Court's personal jurisdiction just like PTI. The Defendants do not address this point nor do they offer any argument that the inclusion of Romain as a party-defendant may be merely duplicative of Defendant PTI as, presumably, the Plaintiffs will be entitled to only one recovery. The movant has the burden of establishing, by reference to particular circumstances, that the transferee forum is clearly more convenient and the Court must give some weight in favor of the forum in which the plaintiff chose to file the Complaint. Putting aside the question of whether Romain is an employer for personal jurisdiction purposes, the Court finds that transfer to the Southern District of Indiana is appropriate under Section 1404(a). The deference typically afforded a plaintiff's forum choice is diminished where the cause of action does not arise in the forum or the plaintiffs do not live in the forum. Deference is further diminished where a collective or class action is pursued because any plaintiff can claim that any other jurisdiction is more convenient. Here, Plaintiffs could have filed suit in any number of judicial districts; the fact that they filed in this District is given limited deference. More significantly, weighing the convenience factors in this case yields a neutral result. The witnesses are either dispersed throughout the United States (i.e. Plaintiffs and branch employees or generally located in Evansville, Indiana (corporate employees). Plaintiffs maintain the location of witnesses is irrelevant because they will only seek to conduct written discovery of electronic materials. While such a presumption may not be a foregone conclusion, it is not immediately apparent that extensive depositions will be required. And, as Plaintiffs point out, the physical location of electronic records has limited weight as they can be easily transmitted. Other factors, such as the location of material events and ease of access to proof are equally neutral given the diverse geography of the plaintiffs and locations were the policy in question was enforced. That said, the Court finds that the interests of justice warrant transfer. As the parties point out in their briefing, the Southern District of Indiana has extensive knowledge of the bases of this litigation. Indeed, it appears that Plaintiffs' theory of recovery may well be one that was litigated generally in Crawford. Moreover, the Evansville community has a greater interest in the resolution of this matter than the citizens of Southern Illinois. The decision of how to compensate drivers was driven by a policy developed by executives in Evansville, Indiana, and that community has vested interest in ensuring that corporations within its boundaries are complying with federal law. For these reasons, this matter should be transferred to the Southern District of Indiana. A full-text copy of the District Court's February 4, 2019 Memorandum and Order is available at https://tinyurl.com/y5uolx6b from Leagle.com. YUWSUF ABDUL-GHAFOOR, individually and on behalf of similarly situated persons, Plaintiff, represented by Terry D. Smith, LAW OFFICES OF TERRY D. SMITH & Joseph H. Cassell -- JHCASSELL@ERONLAW.NET -- ERON LAW OFFICE, PA. PROFESSIONAL TRANSPORTATION INC, an Indiana corporation licensed to conduct business in Illinois & RONALD D. ROMAIN, Individually, as Statutory Employer and President of Professional Transportation, Inc., Defendants, represented by Christopher C. Murray -- christopher.murray@ogletree.com -- OGLETREE DEAKINS NASH SMOAK & STEWART, P.C., Michelle R. Maslowski -- michelle.maslowskie@ogletree.com -- OGLETREE DEAKINS NASH SMOAK & STEWART, P.C. & Patrick F. Hulla -- patrick.hulla@ogletree.com -- OGLETREE DEAKINS NASH SMOAK & STEWART, P.C.. PUBLIC STORAGE: Faces Class Action Over Insurance Product --------------------------------------------------------- Alexander Harris, writing for SpareFoot, reports that did self-storage giant Public Storage mislead tenants into buying their in-house insurance product? That's the central question at the heart of a class action trial that started in California on Jan. 28. The suit seeks $100 million in restitution for the plaintiffs who claim that employees of the storage REIT told customers that they must buy an insurance plan from the company itself in order to rent a unit. As a result the company is accused of violating California's unfair competition law. Public Storage says in legal filings that the company requires tenants to have insurance, but doesn't force customers to buy a plan from them. Tenants are free to obtain insurance from any qualified carrier, according to Public Storage attorneys. The company also says that employees do not give insurance advice, or check for proof of insurance. Going off-script According to reporting by Law360, Public Storage lawyers sought to decertify the class on Jan. 29, arguing that plaintiff testimony points to a few isolated cases where employees went "off-script". As such those examples are not enough to prove misconduct on a class wide-basis. The class is made up of tenants who rented a Public Storage unit in California between February 3, 2012 and February 8, 2016. The case was filed in Superior Court of California for the County of Los Angeles. Former CFO testifies Law360 also reports that retired chief financial officer Edward Reyes testified on Jan. 29 that in-house insurance revenue only accounts for less than 5 percent of the company's business. District manager Clare Ingram also testified, according to Law360: Clare Ingram, a district manager at the company, is in charge of about 18 to 20 people at 10 different Public Storage locations and said she oversees the training of property managers and sales employees. She testified that employees must follow specific scripts and procedures when helping customers rent storage units. When explaining the insurance part of the lease agreement, Ingram said employees are instructed to tell customers that insurance is required and that one option is the in-house insurance program. She also said that if a customer elects to not buy the in-house coverage the company does not ask for proof of insurance. Plaintiffs in the case testified on Jan. 28 that employees told them otherwise, and that they were intentionally led to believe buying the company's insurance was required. The trial was expected to continue through Jan. 30. This isn't the first time Public Storage has faced legal action over its insurance programs. In 2015, the company settled a class action suit in Florida. The plaintiffs in that case claimed that Public Storage misrepresented how it was using premiums collected by people who bought its insurance. [GN] RAZORS EDGE: Berry Suit Alleges FLSA Violation ---------------------------------------------- Jennifer Berry, individually and on behalf of all others similarly situated v. Razors Edge Pizza, Inc., Case No. 4:19-cv-00006 (E.D. Ark., January 3, 2019), is brought against the Defendant for violation of the Fair Labor Standards Act and the Arkansas Minimum Wage Act. The Plaintiff seeks declaratory judgment, monetary damages, liquidated damages, prejudgment interest, and costs, including reasonable attorneys' fees, as a result of the Defendant's failure to pay the Plaintiff lawful overtime compensation for hours worked in excess of 40 hours per week. The Plaintiff is a resident and citizen of Saline County. The Plaintiff worked as an hourly-paid employee for the Defendant. The Defendant Razors Edge Pizza, Inc., owns and operates several pizza delivery establishments in Little Rock under the name Domino's Pizza. [BN] The Plaintiff is represented by: Christopher Burks, Esq. Josh Sanford, Esq. SANFORD LAW FIRM, PLLC One Financial Center 650 South Shackleford, Suite 411 Little Rock, AR 72211 Tel: (501) 221-0088 Fax: (888) 787-2040 E-mail: chris@sanfordlawfirm.com josh@sanfordlawfirm.com RSVP MEN LLC: Fiallo Sues Over Illegal Telemarketing Calls ---------------------------------------------------------- Melissa Fiallo, individually and on behalf of all others similarly situated, Plaintiff, v. RSVP Men LLC, Defendant, Case No. 19-cv-20303 (S.D. Fla., January 23, 2019), seeks statutory damages and injunctive relief for violations of the Telephone Consumer Protection Act. RSVP Men operates as "RSVP Skin Care for Men," a company that sells a skin care line specifically for men. To promote its services, it engages in unsolicited telemarketing using an auto-dialer and/or pre-recorded answering machine. [BN] Plaintiff is represented by: Scott Edelsberg, Esq. EDELSBERG LAW, PA 19495 Biscayne Blvd #607 Aventura, FL 33180 Telephone: (305) 975-3320 Email: scott@edelsberglaw.com - and - Andrew J. Shamis, Esq. SHAMIS & GENTILE, P.A. 14 NE 1st Avenue, Suite 400 Miami, FL 33132 Telephone: 305-479-2299 Email: ashamis@shamisgentile.com SAVASENIORCARE ADMINISTRATIVE: Bid to Dismiss Dolison Suit Granted ------------------------------------------------------------------ In the case, TANYA DOLISON, Individually and as a Representative of the Class, Plaintiff, v. SAVASENIORCARE ADMINISTRATIVE SERVICES, LLC, Defendant, Civil Action No. 15-3135 (E.D. Pa.), Judge Jan E. DuBois of the U.S. District Court for the Eastern District of Pennsylvania (i) granted Sava's Motion to Dismiss, and denied the Plaintiff's Motion for Class Certification. In the putative class action, Dolison asserts, on behalf of herself and similarly situated individuals, that Sava violated the stand-alone disclosure requirement of the Fair Credit Reporting Act ("FCRA"). The putative class members are any individuals whose consumer report was procured by Sava for employment purposes in the period beginning two years prior to the filing of the Complaint and continuing through the date the class list is prepared for class certification. The Plaintiff worked as a Dietary Assistant at the Broomall Rehabilitation and Nursing Center in Broomall, Pennsylvania, from approximately November 1998 through April 2014. The Broomall Center is a nursing facility that provides care and rehabilitation services to its residents. In 2014, Defendant Sava, acquired control of the Broomall Center through Broomall Operating Co. LP. As a part of the change in operations, all the employees at the Broomall Center were required to participate in a "re-application" process. During this re-application process all employees were given, and asked to complete, documents contained in an Employee Documents Book ("EDB"). Although Sava conducted training sessions as part of the change in Broomall Center operations, it did not provide instruction regarding the re-application process or the completion of paperwork contained in the EDB. The central allegation in the case is that Defendant Sava failed to provide a consumer report disclosure that complied with the dictates of the FCRA. The Plaintiff asserts that her consumer report was procured through a disclosure contained in a booklet, the EDB, as opposed to in a document consisting solely of the disclosure and that the disclosure inappropriately contained a liability waiver, releasing the Defendant of any and all liability. On Jan. 16, 2014, in response to Defendant Sava's instructions, Kroll Background America requested that the Pennsylvania State Police run a criminal record check on the Plaintiff. On Jan. 23, 2014, the Pennsylvania State Police provided Kroll with a document which stated that the Plaintiff had been convicted in 1999 for violating "Pennsylvania criminal offense code CS13A30," which prohibits the possession and/or manufacture of controlled substances with intent to deliver. This document also included the Plaintiff's arrest date and detailed his criminal history. On April 16, 2014, Sava notified the Plaintiff that her 1999 conviction was a disqualifying offense and that as a result her employment at the Broomall Center was terminated. The Plaintiff filed the action on June 5, 2015, on behalf of herself and other putative class members. The Plaintiff filed an Amended Complaint on Aug. 19, 2015, and a Second Amended Complaint on June 29, 2016. Her Second Amended Complaint asserts two claims for relief: first, that the Defendant had procured consumer reports without making proper disclosures in violation of 15 U.S.C. Section 1681b(b)(2)(A)(i), and second, that the Defendant took adverse action without providing a proper description of FCRA rights in violation of 15 U.S.C. Section 1681b(b)(3)(A)(ii). On July 5, 2017, the Defendant filed a Motion to Dismiss Count Two of the Plaintiff's Second Amended Complaint. The Plaintiff filed a response which stated that she does not oppose the Defendant's Motion. On July 20, 2017, the Court dismissed the second claim for relief in the Plaintiff's Second Amended Complaint with prejudice. Thus, only one claim for relief is at issue in the present case: the Plaintiff's claim that the Defendant procured consumer reports without first making proper disclosures in violation of 15 U.S.C. Section 1681b(b)(2)(A)(i). The crux of this argument is that the Plaintiff's consumer report was procured without a disclosure made in a document consisting solely of the disclosure, also known as the FCRA's stand-alone disclosure requirement, and that the disclosure contained an inappropriate liability waiver. There are currently two motions pending before the Court: (1) the Plaintiff's Motion for Class Certification; and the (2) Defendant's Motion to Dismiss the Plaintiff's Claim for Lack of Standing under Rule 12(b)(1). In her Motion for Class Certification, the Plaintiff argues that she and the putative class satisfy the requirements of Federal Rule of Civil Procedure 23. In its Motion to Dismiss under Rule 12(b)(1), Sava argues that the Plaintiff does not have standing because (1) the Plaintiff cannot demonstrate that Sava's alleged violation of FCRA's stand-alone disclosure requirement caused her tangible harm or concrete injury, and (2) a bare procedural violation of FCRA's stand-alone disclosure requirement cannot confer Article III standing. As an initial matter, Judge DuBois finds that significant evidence mitigates against the conclusion that the Plaintiff was unaware that she consented to a background check. However, assuming arguendo that the Plaintiff was "unaware," she has not successfully tied this lack of awareness to the Defendant's alleged FCRA violations. The Plaintiff failed to carry her burden to show (i) that she was unaware that she had consented to a background check or that any lack of awareness, and (ii) that either of her alleged harms constitute injuries in fact that are fairly traceable to the Defendant's alleged FCRA violations. The Judge concludes that a violation of the FCRA's stand-alone disclosure requirement constitutes a bare procedural violation that is insufficient to create standing. As to the Plaintiff's motion for class certification , the Judge finds that where the Plaintiff does not satisfy the standing requirements of Article III for the claims asserted on behalf of the class, he cannot address the class certification issues under Rule 23 and must dismiss the class claims. He also finds that that amendment would be futile with respect to the named Plaintiff's individual claims. The Plaintiff has developed a factual record over nearly four years of litigation. She has had multiple opportunities to refine her argument, including the filing of her Amended Complaint, Second Amended Complaint, Motion for Class Certification, and Response to the Defendant's Motion to Dismiss. Consequently, the named Plaintiff's individual claims under 15 U.S.C. Section 1681b(b)(2)(A) are dismissed with prejudice. The members of the putative class, however, may have experienced a concrete harm as a result of the Defendant's alleged failure to comply with the stand-alone disclosure requirement or the extraneous sentence related to waiving liability. Thus, amendment of the Second Amended Complaint would not be futile with respect to the claims of the putative class, and those claims are dismissed without prejudice. For the foregoing reasons, Judge DuBois granted the Defendant's Motion to Dismiss the Plaintiff's Claim for Lack of Standing, and the remaining claims under 15 U.S.C. Section 1681b(b)(2)(A) -- the "First Claim for Relief" -- in the Second Amended Complaint are dismissed. Dolison's individual claims are dismissed with prejudice, as amendment of the Second Amended Complaint would be futile with respect to her individual claims. The claims of the putative class are dismissed without prejudice. The Plaintiff's motion for class certification is denied. An appropriate Order follows. A full-text copy of the Court's Feb. 12, 2019 Memorandum is available at https://is.gd/sX4sEH from Leagle.com. TANYA DOLISON, INDIVIDUALLY AND AS A REPRESENTATIVE OF THE CLASS, Plaintiff, represented by JASON T. BROWN -- jtb@jtblawgroup.com -- BROWN, LLC, JONATHAN SHUB -- jshub@kohnswift.com -- KOHN SWIFT & GRAF PC, NICHOLAS R. CONLON -- nicholasconlon@jtblawgroup.com -- BROWN, LLC & KEVIN LAUKAITIS -- klaukaitis@kohnswift.com -- KOHN SWIFT & GRAF PC. SAVASENIORCARE ADMINISTRATIVE SERVICES, LLC, Defendant, represented by CHESLEY S. MCLEOD -- chesley.mcleod@agg.com -- ARNALL GOLDEN GREGORY LLP, EDWARD P. CADAGIN, ARNALL GOLDEN GREGORY LLP, HENRY M. PERLOWSKI -- henry.perlowski@agg.com -- ARNALL GOLDEN GREGORY LLP, JOSIAH RODNEY WOLCOTT -- jwolcott@connollygallager.com -- CONNOLLY BOVE LODGE & HUTZ LLP, MEGAN P. MITCHELL -- megan.mitchell@agg.com -- ARNALL GOLDEN GREGORY, LLP & RYAN P. NEWELL -- rnewell@connollygallagher.com -- CONNOLLY GALLAGHER LLP. SC STATE PLASTERING: Final Settlement Hearing Set in March ---------------------------------------------------------- Angela Brown, writing for WCIV, reports that over 4,000 people who joined a class action lawsuit for poor contractor work in their Lowcountry homes say the settlement they were awarded is not enough to cover repairs. The Wickerhoff family, of Bluffton, says they are breathing in bad air because of a mold problem due to faulty construction in their Beaufort County home. They joined a class action lawsuit alleging shoddy stucco work in Sun City homes. South Carolina State Plastering (SCSP) did the stucco work. The company was named first in the lawsuit, along with developer Del Webb, builder Pulte Homes, and Kephart Architects. Last October a multi-million dollar agreement was reached, but the Wickerhoffs say their share of the settlement was not enough. "When we bought this house, we probably paid the most money on the street," says Caroline Wickerhoff The plaintiffs allege that SCSP did not properly install the stucco when their homes were built. The Wickerhoffs say that lead to mold and other structural damage. "The major problems is around the window, where the water got through. I would hate to see what it looks like behind there," says Joseph Wickerhoff. In 2018, all parties reached an agreement worth over $43 million that would be split up between thousands of homeowners. The Wickerhoffs believe their slice of the settlement could be up to $6,000, well short of the $45,000 estimate they got for repairs to their home. Joseph Wickerhoff says, "This money would cover one panel over here, maybe. Whatever they give us isn't going to do diddly squat." So what are their legal options? Local attorney Stephan Futeral says, "once they settle, if the funds come in even pennies on the dollar, or doesn't come anywhere near compensating you, you have no further recourse. You cannot go and file a separate lawsuit saying I did not get enough." Mr. Futeral is not involved in this particular lawsuit, but says it should be a lesson to anyone thinking of joining a class action suit. "Pain and suffering, lots of that, you want to proceed individually," Mr. Futeral says. "Some customer-related things, like you were overcharged on a debit card, you should consider (a class action suit)," says Mr. Futeral. The Wickerhoffs still plan on living out their golden years in Sun City. In the meantime, "this is an air purifier that is supposed to kill mold spores," says Joseph Wickerhoff. The couple is also talking to us hoping Pulte Homes the builder will listen. "What are we going to do, just leave?" Caroline Wickerhoff asked rhetorically. "We have a mortgage ... so we can't just walk away. We'd lose everything." According to the class action lawsuit, SCSP is no longer in business and it's only assets are insurance policies. Del Webb is a part of the Pulte Group. He declined to comment when asked if Pulte will offer any assistance to families beyond the settlement, and if they are still building homes with the SCSP stucco. A Beaufort County judge will hold a final hearing on the settlement in March. If approved, it could be months before anyone receives any money. [GN] SCOTTS MIRACLE-GRO: Morning Song Bird Food Settlement Has Prelim OK ------------------------------------------------------------------- The United States District Court for Southern District of California issued an Order granting Parties' Joint Motion for Preliminary Approval of the Proposed Settlement in the case captioned In re MORNING SONG BIRD FOOD LITIGATION. This Document Relates To: ALL ACTIONS. United States District Court for the Southern District of California. Lead Case No. 3:12-cv-01592-JAH-AGS. The parties to the Action filed a joint motion for substitution of revised notices for preliminary approval of the Settlement. The parties' joint motion for substitution of revised notices is granted. The Court preliminarily concludes, based on its prior order granting certification of a litigation class and the information submitted to date, that the requirements of Federal Rule of Civil Procedure 23 have been satisfied. Specifically, the Court finds that: (a) the Settlement Class is so numerous that joinder of all members is impracticable (b) there are questions of law and fact common to the Settlement Class, and such questions predominate over any questions affecting only individual members (c) the claims of Plaintiffs as representative plaintiffs are typical of the claims of the Settlement Class (d) Plaintiffs and Class Counsel have fairly and adequately protected and represented the interests of the Settlement Class and (e) a settlement class is superior to other available methods for fairly and efficiently adjudicating the claims and disputes at issue in this Action. Defendants retain all rights to challenge whether the Action may proceed as a class action, except for settlement purposes only. The Court appoints Plaintiffs Laura Cyphert, Milt Cyphert, Ellen Larson, and David Kirby as the Settlement Class representatives and Robbins Geller Rudman & Dowd LLP, Dowd & Dowd P.C., and The Driscoll Firm, P.C. as Class Counsel. The Court preliminarily approves the Settlement set forth in the Agreement as fair, reasonable, adequate, and in the best interests of the Settlement Class. KCC LLC is appointed as the Settlement Administrator, to implement and administer the Notice Plan and the Settlement, including the claims process and Refunds as described in the Agreement, subject to the oversight of the Parties and this Court. The Court directs the Settlement Administrator to review the Retailer Records and information provided by Class Counsel and Defendants' Counsel to identify recipients of the Retailer-Identified Refund Notice and the Long-Form Notice per the terms of the Parties' Agreement. The Settlement Administrator shall keep and maintain Settlement Class Member contact information as confidential and shall use such information only for purposes of the Settlement. The Court directs the Settlement Administrator to commence dissemination of the Retailer-Identified Refund Notices and Long-Form Notices, as set forth in the Agreement, within thirty (30) days after entry of this Order and to commence publication of the Publication Notice, as set forth in the Agreement, within thirty (30) days after entry of this Order or as soon as reasonably practicable thereafter. In addition, the Court directs the Settlement Administrator: (a) to establish a settlement website and post to it the Long-Form Notice and Claim Form as well as other important documents and deadlines in consultation with Class Counsel and Defendants' Counsel (b) to establish a post-office box for the receipt of any Settlement-related correspondence (c) to establish a toll-free telephone number that will provide automated Settlement-related information to Settlement Class Members (d) to respond to inquiries or requests from Settlement Class Members in consultation with Class Counsel and Defendants' Counsel and (e) to respond to inquiries or requests from Class Counsel, Defendants' Counsel, and the Court. The Settlement Administrator and the Parties shall promptly send copies of any requests for exclusion, objections, and related correspondence to each other. Any Settlement Class Member who wishes to request a Proof of Purchase Refund and/or a Claim Form Refund shall submit a Claim Form with all supporting documentation (including Proof of Purchase and Claim Form Affidavit, respectively) to the Settlement Administrator by regular, first-class mail or via the settlement website by July 1, 2019. Any and all Retailer-Identified Refunds, Proof of Purchase Refunds, Claim Form Refunds, Supplemental Claim Form Refunds, and Second Supplemental Claim Form Refunds shall be issued to Settlement Class Members in accordance with the procedures set forth in the Agreement. No Person shall be entitled to object to the Settlement, to the final judgment to be entered in this Action, to any award of Attorneys' Fees and Expenses to Class Counsel, or to any Service Award to Plaintiffs, or otherwise to be heard, except by serving and filing a written notice of intention to appear and written objections in the form and manner, and by the date, required by the Notice and the terms of this Order. Any Settlement Class Member who fails to object in the manner and by the date required shall be deemed to have waived and forfeited any and all rights he or she may have to object to the Settlement and/or to appear and be heard on his or her objection at the Fairness Hearing (including any right to appeal), shall be forever barred from raising such objections in this Action or any other action or proceeding, and shall be bound by all the terms of the Agreement and by all proceedings, orders and judgments, including, but not limited to, the release of the Plaintiffs' Released Claims. Any Settlement Class Member who wishes to exclude himself or herself from the Settlement must personally sign and submit a written request to opt out stating I wish to exclude myself from the Settlement Class in In re Morning Song Bird Food Litigation (or substantially similar clear and unambiguous language) to the Settlement Administrator on or before May 13, 2019.The written request must also include: the Settlement Class Member's printed name, address, and telephone number; a statement that the individual requesting exclusion is a Settlement Class Member and the Morning Song Bird Food purchased with approximate dates, retailers, product type, and purchase. No one shall be permitted to exercise any exclusion rights on behalf of any other person, whether as an agent or representative of another or otherwise, except upon proof of a legal power of attorney, conservatorship, trusteeship, or other legal authorization and no one may exclude other persons within the Settlement Class as a group, class, or in the aggregate. The Court shall retain exclusive and continuing jurisdiction over all Parties, the Action, and the Agreement to resolve any dispute that may arise regarding the Agreement, the Settlement, or in relation to the Action, including any dispute regarding validity, performance, interpretation, administration, enforcement, enforceability, or termination of the Agreement and the Settlement. The Court retains ongoing and exclusive jurisdiction and independent case management authority regarding the general administration of the Settlement and the Settlement Administrator. A full-text copy of the District Court's January 31, 2019 Order is available at https://tinyurl.com/y7ckoqw8 from Leagle.com. Laura Cyphert, Individually and on Behalf of All Others Similarly Situated & Milt Cyphert, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, represented by Brian E. Cochran -- bcochran@rgrdlaw.com -- Robbins, Geller Rudman & Dowd, LLP, Douglas P. Dowd -- doug@dowdlaw.net -- Dowd & Dowd, P.C., pro hac vice, Jason A. Forge -- forge@rgrdlaw. Com -, Robbins Geller Rudman & Dowd LLP, Jennifer N. Caringal -- jcaringal@rgrdlaw.com -- Robbins Geller Rudman and Dowd LLP, John J. Driscoll, IV, The Driscoll Firm, PC, pro hac vice, Kevin Lane, Dowd & Dowd, P.C., pro hac vice The Scotts Miracle-Gro Company & The Scotts Company LLC, Defendants, represented by Allison E. Haedt, Jones Day, Casteel Elizabeth Borsay, Jones Day, pro hac vice, Edward P. Swan, Jr., Jones Day, Irene Fiorentinos, Jones Day, pro hac vice, James Todd Kennard, Jones Day, pro hac vice, Jeffrey J. Jones, Jones Day, pro hac vice & Marjorie P. Duffy, Jones Day, pro hac vice. SHOREWALK VACATION: Borozny Alleges Violation under ADA in Fla. --------------------------------------------------------------- Shorewalk Vacation Villas, LLC is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Austin Borozny, individually and on behalf of all others similarly situated, Plaintiff v. Shorewalk Vacation Villas, LLC, a Florida limited liability company, Defendant, Case No. 8:19-cv-00405 (M.D. Fla., February 14, 2019). Shorewalk Vacation Villas, LLC is a 3-star hotel.[BN] The Plaintiff is represented by: Jessica Lynn Kerr, Esq. The Advocacy Group, LLC 200 SE 6th St Ste 504 Fort Lauderdale, FL 33301-3424 Tel: (954) 282-1858 Fax: (844) 786-3694 Email: jkerr@advocacypa.com SNAP INC: Kaskela Law Faces Securities Class Action Lawsuit ----------------------------------------------------------- Kaskela Law LLC disclosed that a class action lawsuit has been filed against Snap, Inc. ("Snap" or the "Company") (NYSE: SNAP) on behalf of investors who purchased shares of the Company's stock between March 2, 2017 and August 10, 2017 (the "Class Period"). IMPORTANT DEADLINE: Investors who purchased Snap's stock during the Class Period may, no later than January 31, 2019, seek to be designated as a lead plaintiff representative in the action. Snap investors who suffered a financial loss in excess of $100,000 as a result of their Class Period stock purchases are encouraged to contact Kaskela Law LLC (D. Seamus Kaskela, Esq.) prior to January 31, 2019 at (484) 258-1585 or (888) 715-1740, or online at http://kaskelalaw.com/case/snap-inc/,for additional information about this action and/or to learn how to participate in the action. On or around March 2, 2017, Snap commenced its initial public offering ("IPO") of common stock, selling over 200 million shares of stock to investors at $17.00 per share. Following the IPO, shares of Snap's stock increased in value to over $29.00 per share. However, beginning in May 2017, the Company slowly disclosed to investors, among other things, disappointing financial and operational metrics, including disappointing user growth at the Company's Snapchat messaging platform. Following these disclosures, shares of the Company's stock significantly declined in value, causing financial harm to the Company's investors. The class action complaint alleges that Snap made materially false and misleading statements to investors during the Class Period concerning: (i) the impact of competition from Instagram, a Facebook subsidiary, on Snap's core business, including Snap's Daily Active Users ("DAU"); (ii) the existence and substance of a lawsuit challenging the metrics by which investors and advertisers valued Snap's platform, and internal control deficiencies at Snap; and (iii) Snap's misrepresentations concerning its now admitted use of "growth hacking," a technique use to artificially inflate DAU numbers. The complaint further alleges that, as a result of the foregoing, investors purchased Snap's shares at artificially inflated prices during the Class Period and suffered financial damages as a result of defendants' actions. Snap investors are encouraged to contact Kaskela Law LLC prior to January 31, 2019 for additional information about this action and/or to discuss their legal rights and options. Kaskela Law LLC exclusively prosecutes shareholder actions in state and federal courts throughout the country. For additional information about Kaskela Law LLC please visit www.kaskelalaw.com. D. Seamus Kaskela, Esq. KASKELA LAW LLC 201 King of Prussia Road Suite 650 Radnor, PA 19087 Telephone: (484) 258-1585 (888) 715-1740 Email: skaskela@kaskelalaw.com [GN] SOFI DENTAL CARE: Hillow Sues Over Illegal Telemarketing Calls -------------------------------------------------------------- Kevin Hillow, individually and on behalf of all others similarly situated, Plaintiff, v. Sofi Dental Care & Cosmetics, Defendant, Case No. 19-cv-20318 (S.D. Fla., January 23, 2019), seeks statutory damages and injunctive relief for violations of the Telephone Consumer Protection Act. Defendant is a cosmetic dentistry practice. To promote its services, it engages in unsolicited telemarketing using an auto-dialer and/or pre-recorded answering machine. [BN] Plaintiff is represented by: Scott Edelsberg, Esq. EDELSBERG LAW, PA 19495 Biscayne Blvd #607 Aventura, FL 33180 Telephone: (305) 975-3320 Email: scott@edelsberglaw.com - and - Andrew J. Shamis, Esq. SHAMIS & GENTILE, P.A. 14 NE 1st Avenue, Suite 400 Miami, FL 33132 Telephone: 305-479-2299 Email: ashamis@shamisgentile.com STOP & SHOP SUPERMARKET: Underpays Merchandisers, Falcone Says -------------------------------------------------------------- DONNA FALCONE, individually and on behalf of all others similarly situated, Plaintiff v. THE STOP & SHOP SUPERMARKET COMPANY LLC; DERK-JAN TERHORST; STACY WIGGINS; and MARK MCGOWN, Defendants, Case No. 19-0117 (Mass. Super., Norfolk Cty., Jan. 29, 2019) seeks to recover from the Defendant unpaid wages and overtime compensation, interest, liquidated damages, attorneys' fees, and costs under the Fair Labor Standards Act. The Plaintiff Falcone was employed by the Defendants as merchandiser. The Stop & Shop Supermarket Company LLC is a food retailer in New England. The company is based in Quincy, Massachusetts. The Stop & Shop Supermarket Company LLC is a subsidiary of Koninklijke Ahold Delhaize N.V. [BN] The Plaintiff is represented by: Brook S. Lane, Esq. FAIR WORK, P.C. 192 South Street, Suite 450 Boston, MA 02111 Telephone: (617) 607-3260 E-mail: brook@fairworklaw.com - and - Thomas R. Beauvais, Esq. PO Box 120693 Boston, MA 02112 Telephone: Thomas@beauvaislegal.com SYNERGY PHARMACEUTICALS: Concealed TRULANCE Issues, McMullen Says ----------------------------------------------------------------- GARY MCMULLEN, Individually and on Behalf of All Others Similarly Situated v. TROY HAMILTON, GARY S. JACOB, and GARY G. GEMIGNANI, Case No. 1:19-cv-00825 (E.D.N.Y., February 11, 2019), is a securities class action arising from the Defendants' alleged dissemination of materially false and misleading statements and omissions and concealment of material adverse facts regarding Synergy Pharmaceuticals Inc.'s lead product -- TRULANCE. On September 7, 2017, the Company began to deceive the market by elaborating on the potential for its lead product -- TRULANCE -- and the positive indicators in its launch to the marketplace. TRULANCE is a drug for the once-daily treatment of chronic idiopathic constipation ("CIC"). The Defendants either misleadingly affirmed that the Company was expected to meet or exceed the covenants' requirements, or failed to disclose to the market the reality: TRULANCE had underachieved and the Company was burdened with covenants that it could not satisfy, Mr. McMullen alleges. The Defendants are directors and officers of the Company. Synergy is incorporated under the laws of the state of Delaware with its headquarters located in New York City. Synergy is a biopharmaceutical company focused on the development and commercialization of therapies to treat Gastro-Intestinal disorders and diseases.[BN] The Plaintiff is represented by: Matthew M. Guiney, Esq. Patrick Donovan, Esq. WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP 270 Madison Avenue New York, NY 10016 Telephone: (212) 545-4600 Facsimile: (212) 686-0114 E-mail: guiney@whafh.com donovan@whafh.com TOWN SPORTS: 2nd Cir. Affirms Preliminary Injunction Denial ----------------------------------------------------------- The United States Court of Appeals, Second Circuit, issued an Order affirming the District Court's judgment denying Plaintiffs' Motion for for Preliminary Injunction in the case captioned CARLY PISARRI, AUBILY REMUS JASMIN, JOSHUA BILMES, SAMANTHA FAHY, BARI LASKY, ELIZABETH PLESSER, PETR PRIELOZNY, VADIM TERNOVSKI, and HELENA VON ROSENBERG, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. TOWN SPORTS INTERNATIONAL, LLC, dba New York Sports Clubs, dba Boston Sports Clubs, dba Washington Sports Clubs, dba Philadelphia Sports Clubs, TOWN SPORTS INTERNATIONAL HOLDINGS, INC., dba New York Sports Clubs, dba Boston Sports Clubs, dba Washington Sports Clubs, dba Philadelphia Sports Clubs, Defendants-Appellees. No. 18-1164-cv. (2nd Cir.). The Plaintiffs appeals the from the District Court's denial of their Motion for Preliminary Injunction. Defendants-Appellees Town Sports International, LLC, and Town Sports International Holdings, Inc. (TSI), own and operate gym locations throughout the Eastern seaboard. Plaintiffs-Appellants, including Carly Pisarri (Pisarri) and Aubily Remus Jasmin (Jasmin), were members of TSI's gyms. Pisarri and Jasmin first sued TSI in New York state court, alleging, inter alia, breach of contract and violation of various state consumer fraud protection statutes in connection with their gym memberships. TSI responded by revoking both memberships. Plaintiffs-Appellants then filed a class action complaint in federal court alleging, inter alia, retaliation and prima facie tort. They moved for a preliminary injunction prohibiting TSI's alleged acts of retaliation and their motion was denied. This appeal ensued. A district court abuses its discretion when (1) its decision rests on an error of law or a clearly erroneous factual finding, or (2) its decision though not necessarily the product of a legal error or a clearly erroneous factual finding cannot be located within the range of permissible decisions. Even when a district court has made an error of law or fact, however, an appellate court remains free to affirm an appealed decision on any ground which finds support in the record. In order to obtain a preliminary injunction, a movant must show (1) irreparable harm in the absence of the injunction and (2) either (a) a likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in the movant's favor. Plaintiffs-Appellants argue that TSI's retaliation constitutes irreparable harm because people are being deterred from participating in this action given Defendants' retaliatory conduct and witnesses and potential witnesses will be unwilling to cooperate and voluntarily provide helpful information absent a preliminary injunction. In support of this argument, they cite Second Circuit caselaw holding that an employer's retaliation against an employee for the exercise of statutory rights can constitute irreparable harm. Plaintiffs-Appellants argue that these cases show that TSI's retaliation against them for asserting statutory rights under the consumer protection statutes must in and of itself constitute irreparable harm sufficient to support a preliminary injunction. Plaintiffs-Appellants are incorrect. An employer's retaliation against an employee bears little analogy to a business's retaliation against a consumer. Employees facing the prospect of discharge, demotion, or salary reduction often face significant hurdles to finding a new job, while consumers facing the prospect of lost access to a particular good or service can generally find an adequate replacement elsewhere in the marketplace. Second, Holt, Holt v. Continental Grp., Inc., 708 F.2d 87, 91 (2d Cir. 1983), makes clear that even an employer'sretaliatory conduct does not necessitate a finding of irreparable injury. Therefore, even assuming Holt applies in the consumer protection context, the district court was still free to conclude that on the record here, Plaintiffs-Appellants failed to demonstrate irreparable harm arising from TSI's admitted acts of retaliation. TSI points out that Pisarri and Jasmin were able to recruit seven additional named plaintiffs for their federal court complaint even after TSI had cancelled Pisarri's and Jasmin's memberships. This fact undermines Plaintiffs-Appellants' claim that TSI's retaliatory conduct irreparably harmed Plaintiffs-Appellants' assertion of their statutory rights in this case. Under these circumstances, we cannot say that the district court's conclusion that Plaintiffs-Appellants have not shown irreparable harm is outside the range of permissible decisions. The Court have considered all of Plaintiffs-Appellants' remaining arguments and find them to be without merit. Accordingly, the Court affirms the judgment of the district court. A full-text copy of the Second Circuit's February 4, 2019 Order is available at https://tinyurl.com/y5hsxbw4 from Leagle.com. DAVID E. GOTTLIEB (Taylor J. Crabill, Esq., on the brief), Wigdor LLP, for Plaintiffs-Appellants. JACOB C. COHN, Esq. -- jcohn@grsm.com -- (Peter G. Siachos, Esq. -- psiachos@grsm.com -- on the brief), Gordon Rees Scully Mansukhani, LLP, for Defendants-Appellees. TRIPLE S PROPERTIES: Court Denies Arbitration Bid in Martinez ------------------------------------------------------------- The United States District Court for the Western District of Missouri, Southern Division, issued an Opinion denying Defendant's Motion to Compel Arbitration in the case captioned ELIZABETH MARTINEZ, et al., Plaintiffs, v. TRIPLE S PROPERTIES, Defendant. Case No. 6:17-03195-CV-RK. (W.D. Mo.). This matter comes before the Court on Defendants Rushmore Service Center, LLC's, Miles K. Beacom's, Dale Dobberpuhl's, and Thomas D. Sanford's Motion to Compel Arbitration. Josephine F. Tailor and Alison George bring this purported class action against Rushmore Service Center, LLC and its managers Miles K. Beacom, Dale Dobberpuhl, and Thomas D. Sanford for alleged violations of the Fair Debt Collection Practices Act (FDCPA). Plaintiffs allegedly incurred personal debts that became past due and in default. The Defendants move to compel arbitration and stay the current proceedings. They assert that the Plaintiffs incurred the debts described in the Amended Complaint pursuant to credit card agreements that include an arbitration clause. In support of that contention, the Defendants submit a declaration from Julie K. Gilson (Gilson Declaration), an employee of PREMIER Bankcard, LLC, the servicing entity for First Premier Bank FPB, which issued the credit cards. Gilson attached exemplar Credit Card Contract and Account Opening Disclosures containing the terms and conditions governing Plaintiffs accounts. Those contracts included arbitration clauses encompassing all disputes arising out of or connected to this contract and applicable to employees, affiliates, beneficiaries, agents, and assigns of FPB. The Plaintiffs respond that because arbitrability is not apparent based on the face of the Complaint, the Motion should be denied pending an opportunity for discovery. In reply, the Defendants make clear that the Motion was brought under the Fed. R. Civ. P. 12(b)(6) standard, yet argue the Plaintiffs' arguments fall flat as they are insufficient to challenge the admissible evidence set forth in the Gilson Declaration. Here, the Defendants insist the Motion was brought under the Fed. R. Civ. P. 12(b)(6) standard. Therefore, granting the Motion would only be appropriate if the Amended Complaint established with clarity that the parties have agreed to arbitrate. It does not. No arbitration clause appears in the Amended Complaint, nor any documented incorporated by reference therein. Accordingly, the Defendants' Motion to Compel Arbitration and Stay the Proceedings is denied without prejudice. A full-text copy of the District Court's February 4, 2019 Order is available at https://tinyurl.com/y3n6zcel from Leagle.com. Elizabeth Martinez, Elizabeth Bolden & Jesus Rios, Jr., Plaintiffs, represented by Craig R. Heidemann, Douglas, Haun & Heidemann, Nathan Duncan, Douglas, Haun & Heidemann & Nickolas W. Allen, Douglas, Haun & Heidemann. Triple S Properties, Defendant, represented by Brett W. Roubal, Baird Lightner Millsap, PC, Rachel A. Riso, Baird Lightner Millsap, PC & Patrick R. Baird, Baird Lightner Millsap, PC. TWITTER INC: Sued by Murphy Over Misgendering/Deadnaming Policy --------------------------------------------------------------- MEGHAN MURPHY, an individual, on behalf of herself, those similarly situated, and the general public v. TWITTER, INC., a California corporation; TWITTER INTERNATIONAL COMPANY, an Irish registered company, Case No. CGC-19-573712 (Cal. Super., San Francisco Cty., February 11, 2019), alleges breach of contract, promissory estoppel and violation of the Unfair Competition Law. Ms. Murphy, of Vancouver, British Columbia, Canada, is a feminist writer and journalist. On November 15, 2018, Twitter locked her account and on November 23, 2018, Twitter banned her permanently. Ms. Murphy contends that Twitter's new "misgendering or deadnaming" policy is viewpoint discriminatory on its face because it forbids expression of the viewpoints that (1) whether an individual is a man or a woman is determined by their sex at birth, and (2) an individual's gender is not simply a matter of personal preference. She adds that Twitter's "misgendering or deadnaming" policy singles out users, who express these widely-held viewpoints and perspectives for suspensions, permanent bans, and other enforcement actions. Twitter, Inc., is a corporation duly organized under the laws of the state of Delaware with its principal place of business in San Francisco, California. Twitter International Company is an Irish registered company that is a subsidiary of Twitter, Inc. Twitter International serves as a base for Twitter's EMEA (Europe, the Middle East and Africa) operations. Twitter is the world's largest microblogging site, with an average of 330 million active users per month from all over the globe.[BN] The Plaintiff is represented by: Harmeet K. Dhillon, Esq. Michael R. Fleming, Esq. DHILLON LAW GROUP, INC. 177 Post Street, Suite 700 San Francisco, CA 94108 Telephone: (415) 433-7000 Facsimile: (415) 520-6593 E-mail: harmeet@dhillonlaw.com mfleming@dhillonlaw.com - and - D. Adam Candeub, Esq. MICHIGAN STATE UNIVERSITY 442 Law College Building East Lansing, MI 48864 Telephone: (517) 432-6906 E-mail: candeub@law.msu.edu - and - Noah B. Peters, Esq. NOAH PETERS LAW 1875 Connecticut Ave. N.W., Floor 10 Washington, DC 20009 Telephone: (202) 688-3246 E-mail: noah@noahpeterslaw.com TYSON FOODS: Darden Opts Out of Class Action, Files Suit -------------------------------------------------------- Joel Crews and Bob Sims, writing for Meat Poultry, report that Darden Restaurants Inc., parent company of foodservice chains such as Olive Garden, Cheddar's Scratch Kitchen and Longhorn Steakhouse, has filed an antitrust suit in the US District Court for the Northern District of Illinois alleging multiple poultry companies engaged in price fixing, according to court records. The latest complaint was filed on Jan. 25, 2019, against 34 different defendants including Tyson Foods Inc., Fieldale Farms, Sanderson Farms Inc., Koch Pilgrim's Pride Corp. and others. Darden's case alleges "illegal conspiracy which increased the prices of chicken sold in the United States," according to court records. Darden is opting out of the original class-action lawsuit, originally filed in September 2016 (Maplevale Farms Inc. v. Koch Foods Inc. et al, case number 1:16-cv-08637), which alleged that major companies used coordinated supply restrictions to manipulate prices for broiler chickens. By filing on its own behalf, Darden said, "The company is doing what it believes is tin the best interest of the business and its shareholders." The lawsuit also claims the companies shared price and product information provided by AgriStats Inc. -- which also was named in the lawsuit -- to fix the Georgia Dock broiler price index, according to court documents. According to a spokesman from Tyson, "Follow-on complaints like these are common in antitrust litigation. Such complaints do not change our position that the claims are unfounded. We will continue to vigorously defend our company." This past June, another faction opted out of the class-action suit when group of meat distributors and grocery companies filed a federal antitrust lawsuit of its own (Action Meat Distributors, Inc. et al v. Norman W. Fries, Inc., d/b/a Claxton Poultry Farms, Inc. et al, case number 1:18-cv-03471) in the same district court, alleging a "cartel" of US chicken producers illegally raised the price of broiler chickens from at least Jan. 1, 2008, through Dec. 31, 2016. This past November, attorneys for Fieldale Farms and plaintiffs filed a motion to approve a settlement from the company to release it from the lawsuit. [GN] UADA CORP: Borozny Asserts Breach under Disabilities Act -------------------------------------------------------- UADA Corporation is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Austin Borozny, individually and on behalf of all others similarly situated, Plaintiff v. UADA Corporation, a Florida corporation, Defendant, Case No. 8:19-cv-00404 (M.D. Fla., February 14, 2019). Uada Corporation filed as a Domestic for Profit Corporation in the State of Florida on Friday, September 11, 1998 and is approximately twenty-one years old, as recorded in documents filed with Florida Department of State.[BN] The Plaintiff is represented by: Jessica Lynn Kerr, Esq. The Advocacy Group, LLC 200 SE 6th St Ste 504 Fort Lauderdale, FL 33301-3424 Tel: (954) 282-1858 Fax: (844) 786-3694 Email: jkerr@advocacypa.com UBER TECH: Diva Limousine Files Appeal vs. N. Calif. Dist. Ct. -------------------------------------------------------------- Plaintiff Diva Limousine, Ltd., filed an appeal from a Court ruling in its lawsuit styled DIVA LIMOUSINE, LTD. v. UBER TECHNOLOGIES, INC., et al., Case No. 3:18-cv-05546-EMC, in the U.S. District Court for the Northern District of California, San Francisco. As reported in the Class Action Reporter on Jan. 29, 2019, Magistrate Judge Edward M. Chen granted Uber's motion to disqualify Diva's counsel Warren Postman, Esq., and his firm, Keller Lenkner, LLC. Diva, a licensed provider of livery services in California, brings the putative class action on behalf of providers of pre-arranged ground transportation services against Uber Technologies and related business entities. Diva alleges that Uber secures cost savings by misclassifying its drivers as independent contractors instead of employees and in doing so takes market share from competitors like Diva that operate their businesses in compliance with the law. Diva asserts two causes of action: a claim under the California Unfair Competition Law ("UCL"), and a claim under the California Unfair Practices Act ("UPA"). Diva filed its class action complaint on Sept. 10, 2018. It then filed a motion for partial summary judgment on a "single issue": whether Uber drivers are properly classified as independent contractors or employees under the California Supreme Court's recent ruling in Dynamex Operations W. v. Superior Court, 4 Cal. 5th 903 (2018). On Oct. 24, 2018, Uber filed the instant motion to disqualify Diva's counsel Warren Postman and his firm, Keller Lenkner LLC ("KL"). It contends that Mr. Postman, during his previous tenure at the U.S. Chamber of Commerce Litigation Center, had worked with Uber on litigation implicating the driver classification question under a common interest agreement, pursuant to which he became privy to Uber's privileged and confidential information. The appellate case is captioned as Diva Limousine, Ltd. v. USDC-CASF, Case No. 19-70357, in the United States Court of Appeals for the Ninth Circuit.[BN] The Respondent is the U.S. District Court for the Northern District of California, San Francisco. Plaintiff-Petitioner DIVA LIMOUSINE, LTD., Individually and on behalf of all others similarly situated, is represented by: Nicole Berg, Esq. Thomas Kayes, Esq. Ashley Keller, Esq. Travis D. Lenkner, Esq. KELLER LENKNER LLC 150 N. Riverside Plaza, Suite 4270 Chicago, IL 60606 Telephone: (312) 948-8477 E-mail: ncb@kellerlenkner.com tk@kellerlenkner.com ack@kellerlenkner.com tdl@kellerlenkner.com - and - Warren David Postman, Esq. KELLER LENKNER LLC 1300 I St. NW, Suite 400E Washington, DC 20005 Telephone: (202) 749-8334 E-mail: wdp@kellerlenkner.com Defendants-Real Parties in Interest UBER TECHNOLOGIES, INC., RAISER-CA LLC, RAISER, LLC, UBER USA, LLC, and UATC, LLC, are represented by: Kent Michael Roger, Esq. Sujal Shah, Esq. MORGAN LEWIS & BOCKIUS LLP One Market Street Spear Street Tower San Francisco, CA 94105 Telephone: (415) 442-1000 E-mail: kent.roger@morganlewis.com sujal.shah@morganlewis.com UNITED STATES: Westbrook Files Suit v. Justice Dept. ---------------------------------------------------- A class action lawsuit has been filed against thr U.S. Department of Justice. The case is styled as Elena Westbrook, Yanko Lukov and LevonKetsoyan, individually and on behalf of all similarl ysituated individuals, Plaintiffs v. U.S. Department of Justice, William Barr, in his official capacity as the Attorney General of the United States, U.S. Citizenship and Immigration Services, U.S. Immigration and Customs Enforcement, Thomas D Homan in his official capacity as the Senior Official Performing the Duties of the Director of ICE, David A. Marin in his official capacity as the Director of the Los Angeles Field Office of ICE, Thomas P Giles in his official capacity as the Deputy Field Office Director of Detention and Removal Operation for Disctrict 23, Robert M Culley in his official capacity as the Director of the Salt Lake City Field Office of ICE, Doe 1 in his official capacity as the Deputy Field Office Director of Detention and Removal for the Las Vegas Sub-Office of ICE and the Warden of Immigration Detainees in the Henderson Detention Facility, Does 2-5 and U.S. Department of Homeland Security, Defendants, Case No. 2:19-cv-01198-VAP-AGR (C.D. Cal., February 15, 2019). The docket of the lawsuit states the case type as Habeas Corpus - Alien Detainee. The Plaintiffs are represented by: Nicolette Glazer, Esq. Law Offices of Larry R Glazer 1875 Century Park East No 700 Century City, CA 90067 Tel: (310) 407-5353 Fax: (310) 407-5354 Email: nicolette@glazerandglazer.com The Respondents are represented by: Nicolette Glazer, Esq. Law Offices of Larry R Glazer 1875 Century Park East No 700 Century City, CA 90067 Tel: (310) 407-5353 Fax: (310) 407-5354 Email: nicolette@glazerandglazer.com URBAN FOOD BAZAAR: Gupta Labor Suit Seeks Unpaid Overtime --------------------------------------------------------- Priti Gupta and Srinivas Bandamede, individually and on behalf of FLSA Collective Plaintiffs and the Class, Plaintiff, v. Urban Food Bazaar LLC, Urban Logistics, LLC, Jesal Parekh and Maximus D'Souza, individually Defendants, Case No. 19-cv-00993 (D. N.J., January 23, 2019), seeks to recover unpaid minimum wage, unpaid overtime, unpaid wages, liquidated damages and attorneys' fees and costs pursuant to the Fair Labor Standards Act, New Jersey Wage and Hour Law and the New Jersey Wage Collection Law. Defendants are into grocery packaging and delivery service in Jersey City and Short Hills, New Jersey where Gupta worked as customer service representative while Bandamede as warehouse staff. Plaintiffs claim to be denied overtime pay for hours rendered in excess of 40 hours per week, wage statements and both were terminated for complaining and have yet to receive their last paycheck. [BN] Plaintiff is represented by: Robert D. Salaman, Esq. AKIN LAW GROUP PLLC 45 Broadway, Suite 1420 New York, NY 10006 Tel: (212) 825-1400 Email: rob@akinlaws.com UTLA: LAUSD Teachers Union Dues Targeted in Class-Action Lawsuit ---------------------------------------------------------------- Miriam Hernandez, writing for KABC-TV, reports that just as the United Teachers Los Angeles union celebrates a victory at the bargaining table, the massive organization is slapped with a potentially debilitating federal class action lawsuit. It's about union dues. Teacher Irene Seager said for what she gets from UTLA, she doesn't want to pay them. The suit, filed by the National Right to Work Legal Defense Foundation, claims no teacher should have to pay and that now individuals have more rights to decline. "It means that all public sector employees now have a right to choose whether they want to have a union," attorney Bill Messenger, Esq. said. He argued the underlying case before the U.S. Supreme Court. The plaintiffs won in Janus vs AFSCME on First Amendment grounds. "There are certainly those who would call it union busting. There are others who would say it is a question of civil rights," said Thomas Lenz, labor lawyer and USC law lecturer. According the UTLA website, the fees for full members in 2017 was $988. The lawsuit targets the UTLA dues payment authorization form. The signer agrees that "everyone represented by our union should pay their fair share." There is a 30-day window for a teacher to opt out. The lawsuit asserts that members should be able get out any day. More importantly, that there should be specific language that tells the member that there are personal freedom of speech implications. "By signing this document and agreeing to dues deduction they are agreeing to waive that First Amendment right," Messenger said. Unions have already been pushing for legal protection in the state legislature, arguing that unions pay a vital role for public employees. In California, there is recently passed legislation to protect the collective bargaining process. "Sacramento does see value in union representation and they see a different vision of the workplace," Lenz said. UTLA has not had a chance to review the suit, which was in the process of being served on Jan. 23.[GN] UXIN LIMITED: Faces Machniewicz IPO-related Class Action in N.Y. ---------------------------------------------------------------- PATRICK MACHNIEWICZ, Individually and on behalf of all others similarly situated v. UXIN LIMITED, KUN DAI, ZHEN ZENG, RONG LU, JULIAN CHENG, DOU SHEN, HAINAN TAN, MORGAN STANLEY & CO. INTERNATIONAL PLC, GOLDMAN SACHS (ASIA) L.L.C., J.P. MORGAN SECURITIES LLC, CHINA INTERNATIONAL CAPITAL CORPORATION HONG KONG SECURITIES LIMITED, and CHINA RENAISSANCE SECURITIES (HONG KONG) LIMITED, Case No. 1:19-cv-00822 (E.D.N.Y., February 11, 2019), arises from Uxin's initial public offering held on June 27, 2018, seeking to recover compensable damages caused by the Defendants' violations of the Securities Act of 1933. The Plaintiff alleges that the IPO Registration Statement was materially false and misleading and omitted to state that: (1) Uxin was likely to stop providing complementary services such as inspections to its customers; (2) instead, Uxin would connect consumers to dealers who would provide such complementary services; (3) as a result, Uxin's 2B business would be materially impacted; and (4) consequently, Defendants' statements in the Registration Statement regarding Uxin's business, operations, and prospects, were materially false and/or misleading. Uxin Limited is incorporated under the laws of the Cayman Islands with its principal executive offices located in Beijing, China. Uxin is a used car e-commerce platform in China. The Company has two segments: Uxin Auction (or 2B business) sells used cars to dealers, and Uxin Used Car (or 2C business) sells used cars to consumers. The Individual Defendants are directors and officers of the Company. Defendants Morgan Stanley, Goldman Sachs, J.P. Morgan, China International, and China Renaissance served as underwriters for the Company's IPO. Pursuant to the Securities Act, the Underwriter Defendants are liable for the false and misleading statements in the Registration Statement, the Plaintiff contends.[BN] The Plaintiff is represented by: Phillip Kim, Esq. Laurence M. Rosen, Esq. THE ROSEN LAW FIRM, P.A. 275 Madison Ave., 34th Floor New York, NY 10016 Telephone: (212) 686-1060 Facsimile: (212) 202-3827 E-mail: pkim@rosenlegal.com lrosen@rosenlegal.com VISIONSTREAM: Union Gets in Behind Proposed Class Action -------------------------------------------------------- Tom Pullar-Strecker, writing for Stuff.co.nz, reports that the E tu union says it will get in behind a proposed "class action" lawsuit against Chorus' main contractor Visionstream and contracting companies working for Visionstream, national organiser Joe Gallagher says. Gallagher believed about 3500 workers who have been involved in building Chorus' UFB network could have a claim for unpaid entitlements. ASX-listed law firm Shine Lawyers -- which brought a $1 billion bank-fee claim against Australian banks in 2014 -- revealed on Jan. 22 that it now had what it described as the "horrendous conditions" of workers building New Zealand's ultrafast broadband (UFB) network in its sights. Shine Lawyers' Auckland associate Tim Gunn, Esq. said it hoped to win back pay, holiday pay and sick pay for an army of sub-contractors who he argued had been offered work as subcontractors building UFB on "sham contracts", when they were instead entitled to be treated as staff. Australian-owned Visionstream -- as well as Chorus which is not expected to be directly targeted by the lawsuit -- have declined to comment about the potential legal action. Gallagher said E tū planned to support Shine by encouraging subbies to come forward to support a class action. The union hoped to arrange a closed meeting between subbies, the union and Shine Lawyers in Auckland at the end of February or early in March, he said. "I think [Shine] have got a good argument. The message I am putting out to all my contractors is the union fully supports taking a class action and we are trying to get contractors to come forward. "The union wants to create an environment where they can do that without fear," he said.[GN] WALGREEN CO: Court Narrows Claims in C. Moya's Suit --------------------------------------------------- The United States District Court for the Eastern District of Wisconsin an Order granting Defendant's Motion to Dismiss in the case captioned CAROLYN MOYA, Plaintiff, v. WALGREEN CO., Defendant. Case No. 18-CV-1785-JPS. (E.D. Wis.). She sues the Defendant for charging allegedly improper fees to herself and the putative class members in providing them copies of their healthcare records. Wisconsin Statutes Section 146.83 (Section 146.83) limits the fees that a healthcare provider may charge a patient when it provides the patient with his or her healthcare records. The Plaintiff was injured in a vehicle crash in April 2011. She retained her current attorneys, the Welcenbach Law Offices S.C., to represent her in a personal injury claim. With the Plaintiff's authorization, Welcenbach sought her healthcare records from a number of providers, including the Defendant. Welcenbach paid the $55 charge without protest and without taking advantage of the offer in the final sentence of the quoted passage. The Plaintiff now claims that the $55 fee violates Section 146.83 because it exceeds the maximum amount the statute permits Defendant to charge for the records it provided. The Plaintiff presents two causes of action. First, she alleges that the Defendant charged her and the putative class members more for providing their healthcare records than is permitted by Section 146.83. Because of this, the Plaintiff asserts that Defendant owes her actual damages, as well as exemplary damages of up to $25,000 per violation of the statute (the maximum amount depends on whether the violation was willful or negligent). Second, the Plaintiff claims that the Defendant was unjustly enriched when it knowingly charged her more than it legally could and has retained the overpayment. 4.1 Section 146.83 Section 146.83(3f)(b) establishes a fee scheme that healthcare providers must comply with in meeting a request for patient records. Plaintiff claims that the $55 fee is greater than what the statute permits for the five pages of records that Defendant provided, thus demonstrating Defendant's violation of the statute and her entitlement to damages. Defendant counters that the invoice expressly allowed Plaintiff to pay a different amount if that amount was provided for by state statute. It appears, then, that the invoice is a form document used by Defendant throughout its national operations, and the form is specifically designed to account for variations in state laws, including Wisconsin's Section 146.83. The Defendant notes two reasons why the Plaintiff, and more importantly Welcenbach, knew full well that they could pay a sum less than $55. First, the Plaintiff had the records in hand when she paid the fee. Thus, she could have utilized the scheme described by Section 146.83(3f)(b) to calculate the proper amount owed, and then send that fee to Defendant along with a copy of the statute. Second, Plaintiff and Welcenbach were aware of the legal basis for their current complaint at the time of payment back in 2013. Seven days before Welcenbach paid the fee, Plaintiff filed her lawsuit against Healthport accusing it of the same misconduct as Defendant. Despite being armed with both a factual and legal basis to pay a lesser fee and avoid the instant controversy, Plaintiff nevertheless paid the full $55 fee without protest and waited over five years to file a lawsuit about it. Defendant contends that Plaintiff's conduct operates as a waiver of her right of action under Section 146.83. Wisconsin recognizes the doctrine of waiver as the voluntary and intentional relinquishment of a known right. The waiver doctrine applies squarely to Plaintiff's conduct in this case. She knew that the $55 fee in the invoice was objectionable, and that she was provided an express avenue to avoid paying it, but chose to pay it anyway. This demonstrates her actual intent to waive the right to challenge the propriety of the fee. Indeed, the cynical observer may conclude that Plaintiff paid the fee in order to manufacture this lawsuit. Perhaps she paid the fee in the hope that the Aurora case would end favorably for her, thus providing a basis to sue Defendant half a decade later. Had Plaintiff refused to pay the fee, or paid under protest, or paid a lesser amount as allowed by Section 146.83, waiver would not apply. The matter would have then been in Defendant's hands; it could insist on the $55 fee, thereby violating Section 146.83, or it could accept a lesser payment and avoid a lawsuit. Because Plaintiff instead chose to pay and wait in the weeds for an opportune moment to pounce on Defendant, Plaintiff has demonstrated her intent to waive her right to sue for a violation of Section 146.83. Healthport moved for summary judgment on the ground that Welcenbach was not a person authorized as contemplated by the statute, and so its fees were proper. The circuit court denied the motion, but it was reversed by the Wisconsin Court of Appeals. The Wisconsin Supreme Court then granted Plaintiff's petition for review. For reasons not important to this case, the court determined that Plaintiff was correct, and that Welcenbach should not be required to pay the extra $28 in certification and retrieval fees. That court felt that it could not apply the voluntary payment or waiver doctrines as Healthport suggested, because to do so would undermine the legislature's purpose in permitting attorneys like Welcenbach to obtain low-cost healthcare records on behalf of their clients. But that concern is much lessened here. Welcenbach was expressly given an opportunity to pay what he felt was permitted under Section 146.83, namely, much less than $55 but did not take advantage of it. Plaintiff cannot now be heard to complain about that choice. The Court concludes that Plaintiff has waived her Section 146.83 claim, and that the claim must therefore be dismissed. 4.2 Unjust Enrichment To state a claim for unjust enrichment, a plaintiff must allege three things: (1) a benefit conferred on the defendant by the plaintiff (2) appreciation or knowledge by the defendant of the benefit and (3) acceptance or retention of the benefit by the defendant under circumstances making it inequitable to do so. In its opening brief, Defendant offers two arguments supporting dismissal of the claim. First, Defendant contends that the complaint did not allege all of the required elements of such a claim. Namely, Plaintiff fails to allege inequity because Welcenbach chose to pay the fee when, as stated in the invoice, it could have paid a lesser amount. Second, the Defendant maintains that the Plaintiff's voluntary payment of the fee, with full knowledge that it exceeded the maximum charges allowed under Section 146.83, bars a claim for unjust enrichment. The Plaintiff's opposition brief makes no attempt to defend the unjust enrichment claim against either of these arguments. Indeed, she fails to even mention the claim. The Court must, therefore, treat the Defendant's arguments as conceded and grant its request to dismiss the unjust enrichment claim. In light of this, the Defendant's motion to dismiss must be granted. A full-text copy of the District Court's January 31, 2019 Order is available at https://tinyurl.com/ycgtwmpp from Leagle.com. Carolyn Moya, Plaintiff, represented by Robert J. Welcenbach, Welcenbach Law Offices SC, John Craig Jones, Jones & Hill LLC & Scott C. Borison, Legg Law Firm LLP. Walgreen Co, Defendant, represented by Cynthia G. Burnside -- cynthia.burnside@hklaw.com -- Holland & Knight LLP, Latoya Brisbane -- Latoya.Brisbane@hklaw.com -- Holland & Knight LLP, Susan E. Lovern -- slovern@vonbriesen.com -- von Briesen & Roper SC & Kelly J. Noyes -- knoyes@vonbriesen.com -- von Briesen & Roper SC. Asbestos Litigation ASBESTOS UPDATE: 3M Accrues $28MM Aearo-Related Costs at Dec. 31 ---------------------------------------------------------------- 3M Company, through its Aearo Technologies subsidiary, had accruals of US$28 million as of December 31, 2018, for product liabilities and defense costs related to current and future Aearo-related asbestos and silica-related claims, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2018. The Company states, "On April 1, 2008, a subsidiary of the Company purchased the stock of Aearo Holding Corp., the parent of Aearo Technologies ("Aearo"). Aearo manufactured and sold various products, including personal protection equipment, such as eye, ear, head, face, fall and certain respiratory protection products. "As of December 31, 2018, Aearo and/or other companies that previously owned and operated Aearo's respirator business (American Optical Corporation, Warner-Lambert LLC, AO Corp. and Cabot Corporation ("Cabot")) are named defendants, with multiple co-defendants, including the Company, in numerous lawsuits in various courts in which plaintiffs allege use of mask and respirator products and seek damages from Aearo and other defendants for alleged personal injury from workplace exposures to asbestos, silica-related, coal mine dust, or other occupational dusts found in products manufactured by other defendants or generally in the workplace. "As of December 31, 2018, the Company, through its Aearo subsidiary, had accruals of US$28 million for product liabilities and defense costs related to current and future Aearo-related asbestos and silica-related claims. This accrual represents the Company's best estimate of Aearo's probable loss and reflects an estimation period for future claims that may be filed against Aearo approaching the year 2050. Responsibility for legal costs, as well as for settlements and judgments, is currently shared in an informal arrangement among Aearo, Cabot, American Optical Corporation and a subsidiary of Warner Lambert and their respective insurers (the "Payor Group"). Liability is allocated among the parties based on the number of years each company sold respiratory products under the "AO Safety" brand and/or owned the AO Safety Division of American Optical Corporation and the alleged years of exposure of the individual plaintiff. Aearo's share of the contingent liability is further limited by an agreement entered into between Aearo and Cabot on July 11, 1995. This agreement provides that, so long as Aearo pays to Cabot a quarterly fee of US$100,000, Cabot will retain responsibility and liability for, and indemnify Aearo against, any product liability claims involving exposure to asbestos, silica, or silica products for respirators sold prior to July 11, 1995. Because of the difficulty in determining how long a particular respirator remains in the stream of commerce after being sold, Aearo and Cabot have applied the agreement to claims arising out of the alleged use of respirators involving exposure to asbestos, silica or silica products prior to January 1, 1997. With these arrangements in place, Aearo's potential liability is limited to exposures alleged to have arisen from the use of respirators involving exposure to asbestos, silica, or silica products on or after January 1, 1997. To date, Aearo has elected to pay the quarterly fee. Aearo could potentially be exposed to additional claims for some part of the pre-July 11, 1995 period covered by its agreement with Cabot if Aearo elects to discontinue its participation in this arrangement, or if Cabot is no longer able to meet its obligations in these matters." A full-text copy of the Form 10-K is available at https://bit.ly/2H2sw15 ASBESTOS UPDATE: 3M Accrues $673MM for Respirator Suits at Dec. 31 ------------------------------------------------------------------ 3M Company had an accrual of US$673 million as of December 31, 2018, for liabilities associated with respirator mask and asbestos cases (excluding those related to Aearo Technologies), according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2018. 3M Co. states, "The Company regularly conducts a comprehensive legal review of its respirator mask/asbestos liabilities. The Company reviews recent and historical claims data, including without limitation, (i) the number of pending claims filed against the Company, (ii) the nature and mix of those claims (i.e., the proportion of claims asserting usage of the Company's mask or respirator products and alleging exposure to each of asbestos, silica, coal or other occupational dusts, and claims pleading use of asbestos-containing products allegedly manufactured by the Company), (iii) the costs to defend and resolve pending claims, and (iv) trends in filing rates and in costs to defend and resolve claims, (collectively, the "Claims Data"). As part of its comprehensive legal review, the Company regularly provides the Claims Data to a third party with expertise in determining the impact of Claims Data on future filing trends and costs. The third party assists the Company in estimating the costs to defend and resolve pending and future claims. The Company uses these estimates to develop its best estimate of probable liability. "Developments may occur that could affect the Company's estimate of its liabilities. These developments include, but are not limited to, significant changes in (i) the key assumptions underlying the Company's accrual, including, the number of future claims, the nature and mix of those claims, the average cost of defending and resolving claims, and in maintaining trial readiness (ii) trial and appellate outcomes, (iii) the law and procedure applicable to these claims, and (iv) the financial viability of other co-defendants and insurers. "As a result of the Company's review of its respirator mask/asbestos liabilities and as a result of the cost of resolving claims of persons who claim more serious injuries, including mesothelioma, other malignancies, and black lung disease, the Company increased its accruals in 2018 for respirator mask/asbestos liabilities by US$141 million. In 2018, the Company made payments for legal fees and settlements of US$76 million related to the respirator mask/asbestos litigation. "As of December 31, 2018, the Company had an accrual for respirator mask/asbestos liabilities (excluding Aearo accruals) of US$673 million, up US$65 million from the accrual at December 31, 2017. This accrual represents the Company's best estimate of probable loss and reflects an estimation period for future claims that may be filed against the Company approaching the year 2050. The Company cannot estimate the amount or upper end of the range of amounts by which the liability may exceed the accrual the Company has established because of the (i) inherent difficulty in projecting the number of claims that have not yet been asserted or the time period in which future claims may be asserted, (ii) the complaints nearly always assert claims against multiple defendants where the damages alleged are typically not attributed to individual defendants so that a defendant's share of liability may turn on the law of joint and several liability, which can vary by state, (iii) the multiple factors that the Company considers in estimating its liabilities, and (iv) the several possible developments that may occur that could affect the Company's estimate of liabilities. "As of December 31, 2018, the Company's receivable for insurance recoveries related to the respirator mask/asbestos litigation was US$4 million. The Company continues to seek coverage under the policies of certain insolvent and other insurers. Once those claims for coverage are resolved, the Company will have collected substantially all of its remaining insurance coverage for respirator mask/asbestos claims." A full-text copy of the Form 10-K is available at https://bit.ly/2H2sw15 ASBESTOS UPDATE: 3M Co. Still Faces 2,320 Claimants at Dec. 31 -------------------------------------------------------------- 3M Company is still a defendant in numerous lawsuits in various courts that purport to represent approximately 2,320 individual claimants as of December 31, 2018, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2018. The Company states, "The vast majority of the lawsuits and claims resolved by and currently pending against the Company allege use of some of the Company's mask and respirator products and seek damages from the Company and other defendants for alleged personal injury from workplace exposures to asbestos, silica, coal mine dust or other occupational dusts found in products manufactured by other defendants or generally in the workplace. A minority of the lawsuits and claims resolved by and currently pending against the Company generally allege personal injury from occupational exposure to asbestos from products previously manufactured by the Company, which are often unspecified, as well as products manufactured by other defendants, or occasionally at Company premises. "The Company's current volume of new and pending matters is substantially lower than it experienced at the peak of filings in 2003. The Company expects that filing of claims by unimpaired claimants in the future will continue to be at much lower levels than in the past. Accordingly, the number of claims alleging more serious injuries, including mesothelioma, other malignancies, and black lung disease, will represent a greater percentage of total claims than in the past. Over the past twenty years, the Company has prevailed in fourteen of the fifteen cases tried to a jury (including the lawsuits in 2018). In 2018, 3M received a jury verdict in its favor in two lawsuits - one in California state court in February and the other in Massachusetts state court in December - both involving allegations that 3M respirators were defective and failed to protect the plaintiffs against asbestos fibers. In April 2018, a jury in state court in Kentucky found 3M's 8710 respirators failed to protect two coal miners from coal mine dust and awarded compensatory damages of approximately US$2 million and punitive damages totaling US$63 million. In August 2018, the trial court entered judgment and the Company has appealed. The Company believes liability in this case is not probable and estimable. In June 2018, the Company also settled a number of coal mine dust lawsuits for an amount that was not material to the Company. "The Company has demonstrated in these past trial proceedings that its respiratory protection products are effective as claimed when used in the intended manner and in the intended circumstances. Consequently, the Company believes that claimants are unable to establish that their medical conditions, even if significant, are attributable to the Company's respiratory protection products. Nonetheless the Company's litigation experience indicates that claims of persons alleging more serious injuries, including mesothelioma, other malignancies, and black lung disease, are costlier to resolve than the claims of unimpaired persons, and it therefore believes the average cost of resolving pending and future claims on a per-claim basis will continue to be higher than it experienced in prior periods when the vast majority of claims were asserted by medically unimpaired claimants." A full-text copy of the Form 10-K is available at https://bit.ly/2H2sw15 ASBESTOS UPDATE: 43,100 Claims v. Goodyear Tire Pending at Dec. 31 ------------------------------------------------------------------ The Goodyear Tire & Rubber Company has 43,100 pending asbestos-related claims at the end of year 2018, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2018. The Company states, "We are a defendant in numerous lawsuits alleging various asbestos-related personal injuries purported to result from alleged exposure to asbestos in certain products previously manufactured by us or present in certain of our facilities. Typically, these lawsuits have been brought against multiple defendants in state and federal courts. To date, we have disposed of approximately 147,200 claims by defending, obtaining a dismissal, or entering into a settlement. The sum of our accrued asbestos-related liability and gross payments to date, including legal costs, by us and our insurers totaled approximately US$541 million and US$529 million through December 31, 2018 and 2017, respectively." A full-text copy of the Form 10-K is available at https://bit.ly/2GYBlJn ASBESTOS UPDATE: Appeal Still Ongoing over $13MM Verdict in Lopez ----------------------------------------------------------------- Tyson Foods, Inc. disclosed in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended December 29, 2018, that briefing has been completed regarding an appeal from a US$13 million verdict in an asbestos-related case against the Company's subsidiary. The Company states, "The Hillshire Brands Company was named as a defendant in an asbestos exposure case filed by Mark Lopez in May 2014 in the Superior Court of Alameda County, California. Mr. Lopez was diagnosed with mesothelioma in January 2014 and is now deceased. Mr. Lopez's family members asserted negligence, premises liability and strict liability claims related to Mr. Lopez's alleged asbestos exposure from 1954-1986 from the Union Sugar plant in Betteravia, California. The plant, which was sold in 1986, was owned by entities that were predecessors-in-interest to The Hillshire Brands Company. In August 2017, the jury returned a verdict of approximately US$13 million in favor of the plaintiffs, and a judgment was entered. We have appealed the judgment and all briefing has been completed." A full-text copy of the Form 10-Q is available at https://bit.ly/2SZca0y ASBESTOS UPDATE: Cabot Still Faces 35,000 Claimants at Dec. 31 -------------------------------------------------------------- There were approximately 35,000 claimants as of December 31, 2018 in pending cases asserting claims against Cabot Corporation's American Optical Corporation in connection with respiratory products, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended December 31, 2018. The Company states, "Cabot has exposure in connection with a safety respiratory products business that a subsidiary acquired from American Optical Corporation ("AO") in an April 1990 asset purchase transaction. The subsidiary manufactured respirators under the AO brand and disposed of that business in July 1995. In connection with its acquisition of the business, the subsidiary agreed, in certain circumstances, to assume a portion of AO's liabilities, including costs of legal fees together with amounts paid in settlements and judgments, allocable to AO respiratory products used prior to the 1990 purchase by the Cabot subsidiary. In exchange for the subsidiary's assumption of certain of AO's respirator liabilities, AO agreed to provide to the subsidiary the benefits of: (i) AO's insurance coverage for the period prior to the 1990 acquisition and (ii) a former owner's indemnity of AO holding it harmless from any liability allocable to AO respiratory products used prior to May 1982. As more fully described in the 2018 10-K, the respirator liabilities generally involve claims for personal injury, including asbestosis, silicosis and coal worker's pneumoconiosis, allegedly resulting from the use of respirators that are alleged to have been negligently designed and/or labeled. Neither Cabot, nor its past or present subsidiaries, at any time manufactured asbestos or asbestos-containing products. At no time did this respiratory product line represent a significant portion of the respirator market. "As of both December 31, 2018 and September 30, 2018, there were approximately 35,000 claimants in pending cases asserting claims against AO in connection with respiratory products. Cabot has a reserve to cover its expected share of liability for existing and future respirator liability claims. At December 31, 2018 and September 30, 2018, the reserve was US$24 million and US$25 million, respectively. The Company made payments related to its respirator liability of US$1 million and less than US$1 million in the first three months of fiscal 2019 and fiscal 2018, respectively." A full-text copy of the Form 10-Q is available at https://bit.ly/2TesZ6S ASBESTOS UPDATE: Emerson Electric Had $332MM Liability at Dec. 31 ----------------------------------------------------------------- Emerson Electric Co. disclosed in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended December 31, 2018, that it has US$332 million as liability related to asbestos litigation at December 31, 2018. The Company also recorded US$123 million for asbestos-related insurance receivables, which was included in other assets, at Dec. 31, 2018. A full-text copy of the Form 10-Q is available at https://bit.ly/2U1v82N ASBESTOS UPDATE: Exelon Unit Had US$79MM Reserves at Dec. 31 ------------------------------------------------------------ Exelon Corporation's subsidiary, Exelon Generation Company, LLC, had reserved US$79 million at December 31, 2018 for asbestos-related bodily injury claims, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2018. The Company states, "Generation maintains estimated liabilities for claims associated with asbestos-related personal injury actions in certain facilities that are currently owned by Generation or were previously owned by ComEd and PECO. The estimated liabilities are recorded on an undiscounted basis and exclude the estimated legal costs associated with handling these matters, which could be material. "At December 31, 2018 and 2017, Generation had recorded estimated liabilities of approximately US$79 million and US$78 million, respectively, in total for asbestos-related bodily injury claims. As of December 31, 2018, approximately US$24 million of this amount related to 238 open claims presented to Generation, while the remaining US$55 million is for estimated future asbestos-related bodily injury claims anticipated to arise through 2050, based on actuarial assumptions and analyses, which are updated on an annual basis. On a quarterly basis, Generation monitors actual experience against the number of forecasted claims to be received and expected claim payments and evaluates whether adjustments to the estimated liabilities are necessary." A full-text copy of the Form 10-K is available at https://bit.ly/2Iwg5Nv ASBESTOS UPDATE: Hobart Not Liable for Vulcan-Hart's Liabilities ---------------------------------------------------------------- The First Department of the Appellate Division of the Supreme Court of New York unanimously reversed the Court's Order, entered on or about May 7, 2018, which denied defendant ITW Food Equipment Group, LLC's motion for summary judgment dismissing as against it so much of the complaint as is predicated on a de facto merger. Plaintiff seeks to hold Defendant liable, as a successor to the Vulcan-Hart Corporation, for the consequences of her Decedent's exposure to asbestos between 1969 and 1988 arising from his work on ovens, grills and broilers manufactured by Vulcan-Hart. Vulcan-Hart's assets were purchased in 1986 by Hobart Corporation pursuant to an asset purchase agreement, and defendant acquired Hobart Corporation's product lines and other assets in 2002. The Court finds Defendant has established prima facie that there was no de facto merger between Hobart and Vulcan-Hart that would make Hobart responsible for Vulcan-Hart's preexisting liabilities, because there was no continuity of ownership between the two corporations. The asset purchase agreement stated that Hobart purchased Vulcan-Hart's assets for cash. In opposition, Plaintiff failed to raise an issue of fact as to continuity of ownership. There is no evidence in the record that any other transaction took place in which Vulcan-Hart's shareholders obtained an interest in Hobart. Thus, Plaintiff failed to show that discovery on continuity of ownership would be anything other than a fishing expedition. The appealed case is Eleni Dritsas, etc., et al., Plaintiffs-Respondents, v. Amchem Products, Inc., etc., et al., Defendants, ITW Food Equipment Group, LLC, etc., Defendant-Appellant, 8430, 190276/15, (N.Y. App. Div. 1st). A copy of the Decision and Order, is available at https://tinyurl.com/y68y3k5m from Leagle.com. Lynch Daskal Emery LLP, New York ( Lawrence G. Lee of counsel), and Gary J. Saalman of the bar of the State of Ohio and the State of Texas, admitted pro hac vice, of counsel), for appellant. Weitz & Luxenberg, P.C., New York ( Pierre A. Ratzki of counsel), for respondents. ASBESTOS UPDATE: Scotts Miracle-Gro Still Faces Suits at Dec. 29 ---------------------------------------------------------------- The Scotts Miracle-Gro Company still defends itself against lawsuits related to asbestos-containing products, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended December 29, 2018. Scotts Miracle-Gro states, "The Company has been named as a defendant in a number of cases alleging injuries that the lawsuits claim resulted from exposure to asbestos-containing products, apparently based on the Company's historic use of vermiculite in certain of its products. In many of these cases, the complaints are not specific about the plaintiffs' contacts with the Company or its products. The cases vary, but complaints in these cases generally seek unspecified monetary damages (actual, compensatory, consequential and punitive) from multiple defendants. "The Company believes that the claims against it are without merit and is vigorously defending against them. No accruals have been recorded in the Company's consolidated financial statements as the likelihood of a loss is not probable at this time; and the Company does not believe a reasonably possible loss would be material to, nor the ultimate resolution of these cases will have a material adverse effect on, the Company's financial condition, results of operations or cash flows. "There can be no assurance that future developments related to pending claims or claims filed in the future, whether as a result of adverse outcomes or as a result of significant defense costs, will not have a material effect on the Company's financial condition, results of operations or cash flows." A full-text copy of the Form 10-Q is available at https://bit.ly/2Ve0dR7 ASBESTOS UPDATE: Thomas-Fish Hazardous Product Claim Dismissed -------------------------------------------------------------- U.S. District Judge Maryellen Noreika has issued an Order adopting Magistrate Judge Fallon's Feb. 1, 2019 Report and Recommendation and granting the Defendants' unopposed Motion to Dismiss filed in the case entitled Helen Thomas-Fish, Individually and as Executrix of the Estate of Robert C. Fish, Plaintiff, v. Avborne Accessory Group, InC., et al., Defendants, C.A. No. 18-1195 (MN) (SRF), (D. Del.). Plaintiff's claim of marketing an ultra-hazardous product and the associated demand for an award of punitive damages (Count II) are dismissed with prejudice. Judge Noreika granted Plaintiff leave to file an Amended Complaint within fifteen days of the date of the Order (dated Feb. 19, 2019) to correct the deficiencies outlined in the Report and Recommendation, particularly on following claims: (a) Plaintiff's claims for strict liability, negligence, and breach of express and implied warranties and the associated demand for an award of punitive damages (Count I) are dismissed without prejudice. (b) Plaintiff's claim for failure to warn and the associated demand for an award of punitive damages (Count III) are dismissed without prejudice. (c) Plaintiff's claim for civil conspiracy and the associated demand for an award of punitive damages (Count IV) are dismissed without prejudice. (d) Plaintiff's claims for loss of consortium and the associated demand for an award of punitive damages (Count V) are dismissed without prejudice. A copy of the Order, is available at https://tinyurl.com/y4rcwkdl from Leagle.com. Helen Thomas-Fish, individually and as Executrix of the Estate of Robert C. Fish, Plaintiff, represented by David W. deBruin -- lsoler@gawthrop.com -- Gawthrop Greenwood, PC. Avborne Accessory Group, Inc., Dover Corporation, Dover Engineered Systems, Inc., formerly known as Dover Diversified, Inc., Sargent Aerospace & Defense, LLC, formerly known as Dover Sargent Aerospace & Defense, LLC, Sargent Industries, Inc. & Roller Bearing Company of America, Inc., formerly known as RBC Holdings Corp., Defendants, represented by Catherine A. Mohan -- cmohan@mccarter.com -- McCarter & English, LLP, pro hac vice, Daniel J. Brown -- djbrown@mccarter.com -- McCarter & English, LLP, Janine L. Faben -- jfaben@mccarter.com -- McCarter & English, LLP & Peggy L. Ableman -- pableman@mccarter.com -- McCarter & English, LLP. RBC Bearings Incorporated, formerly known as Roller Bearing Holding Company Inc. & RBC Sargent Airtomic, Defendants, represented by Daniel J. Brown -- djbrown@mccarter.com -- McCarter & English, LLP. ASBESTOS UPDATE: WestRock Co. Had 775 PI Suits at Dec. 31 --------------------------------------------------------- WestRock Company still defends itself against approximately 775 personal injury lawsuits related to asbestos matters as of December 31, 2018, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended December 31, 2018. The Company states, "We have been named a defendant in asbestos-related personal injury litigation. To date, the costs resulting from the litigation, including settlement costs, have not been significant. As of December 31, 2018, there were approximately 775 such lawsuits. We believe that we have substantial insurance coverage, subject to applicable deductibles and policy limits, with respect to asbestos claims. "We have valid defenses to these asbestos-related personal injury claims and intend to continue to defend them vigorously. Should the volume of litigation grow substantially, it is possible that we could incur significant costs resolving these cases. We do not expect the resolution of pending asbestos litigation and proceedings to have a material adverse effect on our consolidated financial condition or liquidity. In any given period or periods, however, it is possible such proceedings or matters could have a material adverse effect on our results of operations, financial condition or cash flows." A full-text copy of the Form 10-Q is available at https://bit.ly/2XlRo9R ********* 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. 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