CAR_Public/190306.mbx               C L A S S   A C T I O N   R E P O R T E R

              Wednesday, March 6, 2019, Vol. 21, No. 47

                            Headlines

3M CO: King Class Action in Alabama Still Ongoing
3M CO: Water Contamination Suit in Alabama State Court Stayed
ADTALEM GLOBAL: Awaits Ruling on Bid to Dismiss Petrizzo Suit
ADTALEM GLOBAL: Awaits Ruling on Bid to Dismiss Versetto Suit
ADTALEM GLOBAL: Engineers Pension Fund Suit Underway in Illinois

AEROHIVE NETWORKS: Averts Class Action Over Revenue Growth
AHOLD USA: Belizaire Appeals S.D.N.Y. Order, Judgment to 2nd Cir.
AMERICAN CENTURY: Wins Class Action Over 401(k) Plan
ANTHEM BLUE CROSS: Faces Class Action Over WellStar Dispute
ANTHEM INC: Slated to Mediate WellStar Contact Dispute

ANTHEM INC: Workers Get Trial in 401(k) Fee Class Action
APPLE INC: Lambert Avocat Applies for Class Action Lawsuit
APPLE INC: Sets Aside Money to Pay for Litigation Costs
APPLE INC: Sued Over iPhone Charger Problems Due to iOS Updates
AR RESOURCES: Court Grants Bid to Dismiss Worley FDCPA Suit

ARROWHEAD PHARMA: Continues to Defend Research Program Related Suit
ARROWHEAD PHARMA: Suit over Hepatitis B Drug Research Ongoing
ASTEC INDUSTRIES: April 2 Lead Plaintiff Motion Deadline Set
ATHENAHEALTH: Shareholders Drop Class Action Over Proposed Sale
AXOGEN INC: March 11 Lead Plaintiff Bid Deadline

BANK OF MONTREAL: Units Face Lawsuits Over Trailing Commissions
BANK OF NEW YORK: June 17 ADR FX Settlement Hearing Set
BANK OF NEW YORK: May 23 Settlement Fairness Hearing Set
BHI ENERGY: Klapatch & Lee's Bid for Class Certification Granted
BIG CHIEF: Young Seeks Class Certification and Abatement of Order

BIG OX: Homeowners File Class Action Over Noxious Odors at Plant
BMW: Justice Tom Bathurst Withdraws From Class Actions Appeal
BOLL WEEVIL: Ark. High Ct. Flips Conley Class Certification Denial
BURLINGTON COUNTY, NJ: Judge Approves Strip Search Settlement
CALIFORNIA: DWC Sued Over Medical Evaluator's Sexual Abuses

CANADA: Proffitt & Cox Attorneys Represent ABC Residents
CAPITAL ONE: Langer Moves to Certify Repossession Notice Class
CARDINAL HEALTH: Trial in 3 Opioid-Related Suits Set for October
CASHCALL: Borrowers Need to Refile Class Action in State Court
CBL & ASSOCIATES: April 1 Trial Set for Tenants' Class Action

CHIPOTLE MEXICAN: Bid to Dismiss Second Amended Complaint Underway
CHIPOTLE MEXICAN: Still Defends Consolidated Suit in Colorado
COCONINO COUNTY, AZ: Plaintiff Asked to Establish Fed. Claim Basis
COOPERSURGICAL INC: Sawyer Sues Over Unsolicited Advertisements
CP OPCO: Court Sets Settlement Schedule in McDonald

EXPEDIA GROUP: Appeal in Nassau County Suit Remains Pending
EXPEDIA GROUP: Appeal in Pine Bluff Advertising Suit Underway
EXPEDIA GROUP: Awaits Court OK on Renewed Class Certification Bid
EXPEDIA GROUP: Class Suit in Lod, Israel Still Pending
EXPEDIA GROUP: Hotels.com Drops Application for Leave to Appeal

EXPEDIA GROUP: Oct. 16 Hearing on Class Certification Bid
EXPEDIA GROUP: Request for Reimbursable Costs Still Pending
FACEBOOK INC: Privacy Disclosures "Quite Vague," Judge Says
FARMERS GROUP: Grigson Moves to Certify Auto Policyholders Class
FLOTEK INDUSTRIES: 5th Cir. Affirms Dismissal of Securities Suit

FORSTER & GARBUS: Bencomo Seeks to Certify Class Under FDCPA
FRESH INVESTMENTS: Spangler Sues Over Unpaid Minimum Wage
GRAIN PROCESSING: Judge Set to Rule on Class Action Settlement
HAIN CELESTIAL: Consolidated Securities Suit Underway
HAIN CELESTIAL: Stockholder Litigation Remains Stayed

HALIFAX, NS: Ex-Africville Residents Continue to Pursue Lawsuit
HERTZ CORPORATION: Court Denies Class Certification in Spotswood
HOME DEPOT: Smith Suit Removed to S.D. California
K12 INC: Bid to Certify Class in Tarapara Suit Nixed
KEMPER CASUALTY: Court Denies Judgment on Pleadings in Bhasker

KOVITZ SHIFRIN: Court Narrows Claims in Wahlert FDCPA Suit
LIONS GATE: Reports $54.8MM Cost on Case Settlements
LOUISIANA: Court Denies Protective Order in DWCC Inmates' Suit
MAKE IT RIGHT: Charity Homeowners' Class Action Pending
MDL 1616: Court OKs Settlement Funds Distribution

MDL 2801: May 16 Settlement Fairness Hearing Set
MERCEDES-BENZ USA: Judge Allows Emissions Class Action to Proceed
MERCK SHARP: Seeks Review of Decision in Rotavirus Antitrust Suit
METROPOLITAN LIFE: Court Refuses to Remand T. Pugh's UCL Suit
MLK EXPRESS: Court Denies Dismissal of Drivers' FLSA Suit

MOVIEPASS: Subscribers File Bait-and-Switch Scheme Class Action
NEW YORK CITY: Court Grants Dismissal of NYCHA Suit
NEW YORK: Breastmilk-Pumping Police Officers File Class Action
NEWYORKCITY: Garey Alleges Violation under Disabilities Act
NOVA SCOTIA: Class Action Over Schools for Deaf Abuses Okayed

OPAL TOWER: Maurice Blackburn Opts Out of Representation Race
PHOENIX FINANCIAL: Oswald-Green Asserts Breach of FDCPA
POPSUGAR INC: Court Denies Dismissal of Infringement Suit
REVERA INC: Plaintiffs' Lawyers to File Mass Tort Claims
RICHARD SOKOLOFF: Court Refuses to Reconsider Carvalho Stay

SCOTT FARMS: Court OKs Conditional Certification in Mondragon
SCOTTS CO: Settles Overtime Pay Class Action for $1.07MM
SPORTIME CLUBS: Taveras Sues Over Unpaid Overtime Provisions
TBT RESTAURANT: Szelag Sues Over Unpaid Minimum Wages
TEXAS: Lumsden Moves for Certification of TDCJ Prisoners Class

TOMMY JOHN: Garey Asserts Violation under Disabilities Act
U.S. SECURITY: Court OKs Amend to Burrola Complaint
UGI CORP: Suits Over Underfilled Portable Propane Cylinders Ongoing
UNION PACIFIC: Mulls Appeal of Class Certification Order
UNION PACIFIC: Still Awaits Decision on Interlocutory Appeal

UNITED STATES: Class Action Over Sham Travel Ban Waiver Okayed
W.D. HENRY: Court Stays AWPA Suit Pending Summary Judgment Bid
YANDY LLC: Garey Asserts Breach of Disabilities Act
ZOGSPORTS HOLDINGS: 2 Volunteers Classes Certified in Ernst Suit

                            *********

3M CO: King Class Action in Alabama Still Ongoing
-------------------------------------------------
3M Company said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on February 7, 2019, for the
fiscal year ended December 31, 2018, that the company continues to
defend a purported class action lawsuit in the U.S. District Court
for the Northern District of Alabama.

In November 2017, a putative class action (the "King" case) was
filed against 3M, its subsidiary Dyneon, Daikin America, and the
West Morgan-East Lawrence Water and Sewer Authority (Water
Authority) in the U.S. District Court for the Northern District of
Alabama. The plaintiffs are residents of Lawrence and Morgan
County, Alabama who receive their water from the Water Authority.

They assert various common law claims, including negligence,
nuisance, wantonness, and fraudulent concealment, and they seek
injunctive relief, attorneys' fees, compensatory and punitive
damages for their alleged personal injuries.

The plaintiffs contend that the defendants own and operate
manufacturing and disposal facilities in Decatur that have released
and continue to release PFOA, PFOS and related chemicals into the
groundwater and surface water of their sites, resulting in
discharge into the Tennessee River.

The plaintiffs also contend that the defendants have discharged
chemicals into the Decatur Utilities Dry Creek Wastewater Treatment
Plant, which, in turn, discharged wastewater containing these
chemicals into the Tennessee River. The plaintiffs contend that, as
a result of the alleged discharges, the water supplied by the Water
Authority to the plaintiffs was, and is, contaminated with PFOA,
PFOS, and related chemicals at a level dangerous to humans.

No further updates were provided in the Company's SEC report.

3M Company operates as a technology company worldwide. The
company's Industrial segment offers tapes, abrasives, adhesives,
ceramics, sealants, specialty materials, purification products,
closure systems, acoustic systems products, automotive components,
abrasion-resistant films, and paint finishing and detailing
products. The company was founded in 1902 and is headquartered in
St. Paul, Minnesota.


3M CO: Water Contamination Suit in Alabama State Court Stayed
-------------------------------------------------------------
3M Company said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on February 7, 2019, for the
fiscal year ended December 31, 2018, that the class action filed in
the state court in Lawrence County, Alabama, is still stayed.

In August 2016, a group of more than 200 plaintiffs filed a
putative class action against West Morgan-East Lawrence Water and
Sewer Authority (Water Authority), 3M, Dyneon, Daikin, BFI, and the
City of Decatur in state court in Lawrence County, Alabama.

Plaintiffs are residents of Lawrence, Morgan and other counties who
are or have been customers of the Water Authority. They contend
defendants have released PFAS that contaminate the Tennessee River
and, in turn, their drinking water, causing damage to their health
and properties.

In January 2017, the court in the St. John case, discussed above,
stayed this litigation pending resolution of the St. John case.

No further updates were provided in the Company's SEC report.

3M Company operates as a technology company worldwide. The
company's Industrial segment offers tapes, abrasives, adhesives,
ceramics, sealants, specialty materials, purification products,
closure systems, acoustic systems products, automotive components,
abrasion-resistant films, and paint finishing and detailing
products. The company was founded in 1902 and is headquartered in
St. Paul, Minnesota.


ADTALEM GLOBAL: Awaits Ruling on Bid to Dismiss Petrizzo Suit
-------------------------------------------------------------
Adtalem Global Education Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on February 7, 2019,
for the quarterly period ended December 31, 2018, that the motion
to dismiss the Petrizzo class action complaint with new lead
plaintiff Renee Heather Polly, remains pending.

On October 14, 2016, a putative class action lawsuit was filed by
Debbie Petrizzo and five other former DeVry University students,
individually and on behalf of others similarly situated, against
the Adtalem Parties in the United States District Court for the
Northern District of Illinois (the "Petrizzo Case"). The complaint
was filed on behalf of a putative class of persons consisting of
those who enrolled in and/or attended classes at DeVry University
from at least 2002 through the present and who were unable to find
employment within their chosen field of study within six months of
graduation.

The plaintiffs claimed that defendants made false or misleading
statements regarding DeVry University's graduate employment rate
and asserted claims for unjust enrichment and violations of six
different states' consumer fraud, unlawful trade practices, and
consumer protection laws. The plaintiffs seek monetary,
declaratory, injunctive, and other unspecified relief.

On October 28, 2016, a putative class action lawsuit was filed by
Jairo Jara and eleven others, individually and on behalf of others
similarly situated, against the Adtalem Parties in the United
States District Court for the Northern District of Illinois (the
"Jara Case"). The individual plaintiffs claim to have graduated
from DeVry University in 2001 or later and sought to proceed on
behalf of a putative class of persons consisting of those who
obtained a degree from DeVry University and who were unable to find
employment within their chosen field of study within six months of
graduation.

The plaintiffs claimed that defendants made false or misleading
statements regarding DeVry University's graduate employment rate
and asserted claims for unjust enrichment and violations of ten
different states’ consumer fraud, unlawful trade practices, and
consumer protection laws. The plaintiffs seek monetary,
declaratory, injunctive, and other unspecified relief.

By order dated November 28, 2016, the district court ordered the
Petrizzo and Jara Cases be consolidated under the Petrizzo caption
for all further purposes. On December 5, 2016, plaintiffs filed an
amended consolidated complaint on behalf of 38 individual
plaintiffs and others similarly situated.

The amended consolidated complaint seeks to bring claims on behalf
of the named individuals and a putative nationwide class of
individuals for unjust enrichment and alleged violations of the
Illinois Consumer Fraud and Deceptive Practices Act and the
Illinois Private Businesses and Vocational Schools Act of 2012. In
addition, it purports to assert causes of action on behalf of
certain of the named individuals and 15 individual state-specific
putative classes for alleged violations of 15 different states'
consumer fraud, unlawful trade practices, and consumer protection
laws. Finally, it seeks to bring individual claims under Georgia
state law on behalf of certain named plaintiffs.

The plaintiffs seek monetary, declaratory, injunctive, and other
unspecified relief. A motion to dismiss the amended complaint was
filed by the Adtalem Parties and granted by the court, without
prejudice, on February 12, 2018.

Because the case was dismissed without prejudice, the plaintiffs
can re-file the action.

On April 12, 2018, the Petrizzo plaintiffs refiled their complaint
with a new lead plaintiff, Renee Heather Polly. The plaintiffs'
refiled complaint is nearly identical to the complaint previously
dismissed by the court on February 12, 2018. The Adtalem Parties
moved to dismiss this refiled complaint on May 14, 2018.

No further updates were provided in the Company's SEC report.

Adtalem Global Education Inc. provides educational services
worldwide. It operates through three segments: Medical and
Healthcare, Professional Education, and Technology and Business.
Adtalem Global Education Inc. was founded in 1931 and is based in
Chicago, Illinois.


ADTALEM GLOBAL: Awaits Ruling on Bid to Dismiss Versetto Suit
-------------------------------------------------------------
Adtalem Global Education Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on February 7, 2019,
for the quarterly period ended December 31, 2018, that the motion
to dismiss filed in the putative class action suit initiated by
Nicole Versetto is still pending.

On April 13, 2018, a putative class action lawsuit was filed by
Nicole Versetto, individually and on behalf of other similarly
situated, against the Adtalem Parties in the Circuit Court of Cook
County, Illinois, Chancery Division. The complaint was filed on
behalf of herself and three separate classes of similarly situated
individuals who were citizens of the State of Illinois who
purchased or paid for a DeVry University program between January 1,
2008 and April 8, 2016.

The plaintiffs claim that defendants made false or misleading
statements regarding DeVry University's graduate employment rate
and asserts causes of action under the Illinois Uniform Deceptive
Trade Practices Act, Illinois Consumer Fraud and Deceptive Trade
Practices Act, and Illinois Private Business and Vocational Schools
Act, and claims of breach of contract, fraudulent
misrepresentation, concealment, negligence, breach of fiduciary
duty, conversion, unjust enrichment, and declaratory relief as to
violations of state law.

The plaintiffs seek compensatory, exemplary, punitive, treble, and
statutory penalties and damages, including pre-judgment and
post-judgment interest, in addition to restitution, declaratory and
injunctive relief, and attorneys' fees. The Adtalem Parties moved
to dismiss this complaint on June 20, 2018.

No further updates were provided in the Company's SEC report.

Adtalem Global Education Inc. provides educational services
worldwide. It operates through three segments: Medical and
Healthcare, Professional Education, and Technology and Business.
Adtalem Global Education Inc. was founded in 1931 and is based in
Chicago, Illinois.


ADTALEM GLOBAL: Engineers Pension Fund Suit Underway in Illinois
----------------------------------------------------------------
Adtalem Global Education Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on February 7, 2019,
for the quarterly period ended December 31, 2018, that the company
continues to defend a putative class action lawsuit initiated by
the Pension Trust Fund for Operating Engineers.

On May 13, 2016, a putative class action lawsuit was filed by the
Pension Trust Fund for Operating Engineers, individually and on
behalf of others similarly situated, against Adtalem, Daniel
Hamburger, Richard M. Gunst, and Timothy J. Wiggins in the United
States District Court for the Northern District of Illinois.

The complaint was filed on behalf of a putative class of persons
who purchased Adtalem common stock between February 4, 2011 and
January 27, 2016. The complaint cites the ED January 2016 Notice
and a civil complaint (the "FTC lawsuit") filed by the FTC on
January 27, 2016 against Adtalem, DeVry University, Inc., and
DeVry/New York Inc. (collectively, the "Adtalem Parties"), which
was resolved with the FTC in 2017, that alleged that certain of
DeVry University's advertising claims were false or misleading or
unsubstantiated at the time they were made in violation of Section
5(a) of the FTC Act, as the basis for claims that defendants made
false or misleading statements regarding DeVry University's
graduate employment rate and the earnings of DeVry University
graduates relative to the graduates of other universities and
colleges.

As a result of these alleged false or misleading statements, the
plaintiff alleged that defendants overstated Adtalem's growth,
revenue and earnings potential and made false or misleading
statements about Adtalem's business, operations and prospects.

The plaintiff alleged direct liability against all defendants for
violations of Section 10(b) and Rule 10b-5 of the Exchange Act and
asserted liability against the individual defendants pursuant to
Section 20(a) of the Exchange Act. The plaintiff sought monetary
damages, interest, attorneys' fees, costs and other unspecified
relief.

On July 13, 2016, the Utah Retirement System ("URS") moved for
appointment as lead plaintiff and approval of its selection of
counsel, which was not opposed by the Pension Trust Fund for
Operating Engineers and URS was appointed as lead plaintiff on
August 24, 2016. URS filed a second amended complaint ("SAC") on
December 23, 2016. The SAC sought to represent a putative class of
persons who purchased Adtalem common stock between August 26, 2011
and January 27, 2016 and named an additional individual defendant,
Patrick J. Unzicker.

Like the original complaint, the SAC asserted claims against all
defendants for alleged violations of Section 10(b) and Rule 10b-5
of the Exchange Act and asserted liability against the individual
defendants pursuant to Section 20(a) of the Exchange Act for
alleged material misstatements or omissions regarding DeVry
University graduate outcomes. On January 27, 2017, defendants moved
to dismiss the SAC, which motion was granted on December 6, 2017
without prejudice.

The plaintiffs filed a Third Amended Complaint ("TAC") on January
29, 2018. The defendants moved to dismiss the TAC on March 30,
2018. The Court denied the motion to dismiss the TAC on December
20, 2018. On January 8, 2019, the Court entered an order which,
among other dates, set February 8, 2019, as the date for the
defendants to file their answer to the TAC. Defendants intend to
deny all material allegations in the TAC.

Adtalem Global Education Inc. provides educational services
worldwide. It operates through three segments: Medical and
Healthcare, Professional Education, and Technology and Business.
Adtalem Global Education Inc. was founded in 1931 and is based in
Chicago, Illinois.


AEROHIVE NETWORKS: Averts Class Action Over Revenue Growth
----------------------------------------------------------
Law360 reports that Aerohive Networks Inc. escaped a putative class
action accusing it of hiding personnel issues and declining revenue
growth from its investors after a California federal judge tossed
the suit. [GN]


AHOLD USA: Belizaire Appeals S.D.N.Y. Order, Judgment to 2nd Cir.
-----------------------------------------------------------------
Plaintiffs Ansy Belizaire and Anthony McAllister filed an appeal
from the District Court's order and judgment both dated February 8,
2019, issued in their lawsuit titled Belizaire, et al. v. Ahold
U.S.A., Inc., et al., Case No. 18-cv-5020, in the U.S. District
Court for the Southern District of New York (New York City).

As reported in the Class Action Reporter on Feb. 13, 2019, Judge
Lorna G. Schofield (i) granted the Defendants' motion to dismiss
the Amended Complaint as to the New York Labor Law ("NYLL") Section
196-d claim; and (ii) converted the Defendants' motion to dismiss
the Amended Complaint as to the Wage Theft Prevention Act ("WTPA")
NYLL Section 195-1 claim to a motion for summary judgment and
granted.

Ansy Belizaire and Anthony McAllister bring the putative class
action against Ahold U.S.A., Ahold Delhaize U.S.A., Inc., Peapod,
LLC and The Stop & Shop Supermarket Co., LLC, alleging violations
of NYLL Section 196-d.  The Plaintiffs, who were employed as
delivery workers by Stop & Shop, allege that a delivery fee charged
to Stop & Shop customers was a gratuity under NYLL Section 196-d.
Plaintiff McAllister individually brings an action for the
Defendants' failure to provide proper wage notices in violation of
the NYLL Section 195-1.

The Plaintiffs were delivery drivers employed by Defendant Stop &
Shop in New York.  Belizaire worked as a delivery driver from about
-- to 2017, and McAllister worked as a delivery driver from about
2012 to April 2015.  Defendant Peapod operates warerooms, where
groceries are stored, within Stop & Shop stores.  The delivery
drivers generally pick up deliveries from Peapod warerooms.  Peapod
is a subsidiary of Ahold Delhaize U.S.A., Inc. (previously Ahold
U.S.A.).

The appellate case is captioned as Belizaire, et al. v. Ahold
U.S.A., Inc., et al., Case No. 19-457, in the United States Court
of Appeals for the Second Circuit.[BN]

Plaintiffs-Appellants Ansy Belizaire, on behalf of themselves and
all other persons similarly situated, and Anthony McAllister, on
behalf of themselves and all other persons similarly situated, are
represented by:

          Jessica L. Lukasiewicz, Esq.
          THOMAS & SOLOMON LLP
          693 East Avenue
          Rochester, NY 14607
          Telephone: (585) 272-0540
          E-mail: jlukasiewicz@theemploymentattorneys.com

Defendants-Appellees Ahold U.S.A., Inc., Ahold Delhaize U.S.A.,
Inc., The Stop & Shop Supermarket Company, LLC, and Peapod, LLC,
are represented by:

          Jason David Burns, Esq.
          MORGAN, LEWIS & BOCKIUS LLP
          101 Park Avenue
          New York, NY 10178
          Telephone: (212) 309-6000
          E-mail: jason.burns@morganlewis.com


AMERICAN CENTURY: Wins Class Action Over 401(k) Plan
----------------------------------------------------
Chief Investment Officer reports that asset manager American
Century Investments has won a class action lawsuit that had accused
the firm of violating its ERISA duties by profiting from its 401(k)
plan at the expense of its employees by only offering its own
mutual funds in the plan.

In its complaint against American Century, the plaintiffs, who were
participants in the company's 401(k) plan, accused the firm of
using the plan "as an opportunity to promote American Century's
mutual fund business and maximize profits at the expense of the
plan and its participants."

It said that the firm loaded the plan exclusively with its own
investment offerings, without investigating whether the
participants would be better served by investments managed by
unaffiliated companies.

"The retention of these proprietary mutual funds has cost plan
participants millions of dollars in excess fees," said the
complaint.

However, a US district court judge ruled that the plaintiffs failed
to prove American Century breached any fiduciary duty to
participants.

"Plaintiffs repeatedly emphasize that defendants only considered
American Century funds in the plan, which they argue evidences a
motivation to benefit American Century," said Judge Greg Kays in
his decision. "But it is not disloyal as a matter of law to offer
only proprietary funds. In fact, it is common for financial service
companies to offer their own investment funds in their retirement
plans. And there is no duty to offer more than one investment
company's funds."

Although the plan consisted of only American Century funds, the
court found that it contained a diverse array of asset classes and
investment styles covering the entire risk/reward spectrum. For
example, the plan offered funds from money market accounts, several
specialty funds and common stock funds, as well as a significant
number of large cap equity funds, and many small- and mid-cap
equity funds as well, the court said.

"The ruling is a complete vindication of American Century
Investments, as well our colleagues who make up the retirement
committee overseeing our company retirement plan," Chris Doyle,
spokesman for American Century Investments, said in an email to
CIO. "The judge's well-reasoned ruling found that American Century
and the members of that retirement committee acted in the best
interests of plan participants and followed a prudent oversight
process."

The plaintiffs argued that the American Century Retirement Plan
Retirement Committee, which administers the company's 401(k) plan
operated under a conflict of interest because members served as
both employees of American Century and as plan fiduciaries.

"But ERISA does not prohibit an employer's corporate officer or
employee from serving as a plan fiduciary," wrote Judge Kays in his
ruling. "It merely requires the officer wear the fiduciary hat when
making fiduciary decisions."

Mr. Doyle said the ruling was not just a victory for American
Century, but that "it's good for the industry and ultimately plan
participants because it will help liberate investment committees to
make investment selections based on participants' best interests
instead of single factors like fees or litigation concerns." [GN]


ANTHEM BLUE CROSS: Faces Class Action Over WellStar Dispute
-----------------------------------------------------------
Ricky Leroux, writing for MDJOnline.com, reports that a Marietta
attorney has filed a class action lawsuit against Anthem Blue Cross
Blue Shield over its dispute with WellStar.

The suit, filed in federal court on Feb. 5, names two Cobb County
residents as plaintiffs and includes in the class anyone who
purchased Anthem's Pathways health insurance plan, which is sold on
the individual health insurance exchange created by the Affordable
Care Act.

The lawsuit asks for more than $5 million in damages. [GN]


ANTHEM INC: Slated to Mediate WellStar Contact Dispute
------------------------------------------------------
Morgan Haefner, writing for Becker's Hospital Review, reports that
Anthem policyholders are filing a class-action lawsuit against the
insurer after it did not tell members it planned to go out of
network with Marietta, Ga.-based WellStar Health System before they
locked into individual health plans for the year, according to the
Atlanta Journal-Constitution.

Five things to know:

1. WellStar, which comprises nearly a dozen hospitals, three health
parks and 10 urgent care clinics, was no longer considered in
network for Anthem's individual policyholders after a contract
expired Feb. 4. The change did not affect members with
employer-based coverage, but those who purchased plans off
individual exchanges like those set up by the ACA.

2. However, Anthem issued a 90-day reprieve for members to maintain
access to some services, such as primary care, at in-network prices
until May 4. The change came after the Georgia Department of
Insurance prodded the insurer.

3. At issue, and at the center of the lawsuit, is the allegation
that Anthem members chose their policies in fall 2018, at which
point Anthem already knew it was ending its WellStar contract for
individual members. The class-action lawsuit claims Anthem tricked
members into applying for the plans, only to learn through their
physicians and news stories that WellStar, one of the biggest
systems near Atlanta, would not be considered in network.

4. WellStar officials plan to continue treating primary care visits
as in network during the reprieve, according to the Atlanta
Journal-Constitution. However, when Anthem treats patients as out
of network for other services, WellStar will balance-bill patients
for the remainder. WellStar said it will consider the price of the
service to be the lower network price and not the public list
price.

5. Anthem and WellStar are slated to mediate their contract dispute
in March as part of their agreement, according to the report. [GN]


ANTHEM INC: Workers Get Trial in 401(k) Fee Class Action
--------------------------------------------------------
Jacklyn Wille, writing for Bloomberg Law, reports that Anthem Inc.
employees who sued the company over the fees tied to its $5.1
billion 401(k) plan won a major victory Jan. 30, when a federal
judge allowed their case to go to trial.

None of the six claims made in the employees' sealed complaint can
be resolved in Anthem's favor before trial, Judge Tanya Walton
Pratt of the U.S. District Court for the Southern District of
Indiana ruled. The employees presented "more than enough evidence"
to raise questions about whether the Anthem defendants understood
that the share classes of the plan's investments carried higher
fees than other available share classes, Pratt said.

The class action accuses Anthem's retirement plan committee of
causing the plan to pay excessive fees to Vanguard Group Inc. --
including by offering retail share classes of Vanguard funds
instead of cheaper institutional share classes. The committee is
accused of offering a Vanguard money market fund without
considering whether a stable value fund was a better option for
employees seeking capital preservation.

The case is a rare example of litigation challenging fees paid to
Vanguard, which is not named as a defendant. Many lawsuits
challenging excessive 401(k) fees point to Vanguard funds as
examples of lower-cost alternatives that plans could have offered.

                           Moving Forward

The employees are also moving forward with their challenge to the
plan's money market fund. They presented enough evidence to raise
questions about whether the Anthem defendants used an imprudent
fiduciary process when they allegedly failed to consider offering a
stable value fund instead, Pratt said.

The ruling comes one week after Pratt approved the employees'
requested changes to class definitions. That order created two
subclasses in the case, each with "thousands" of members: one of
Anthem plan investors subject to a revenue sharing fee structure
used between 2009 and 2013, and one of investors who paid flat
annual fees for plan administration beginning in 2013.

Schlichter Bogard & Denton LLP represents the employees. Seyfarth
Shaw LLP represents the Anthem defendants.

The case is Bell v. Pension Comm. of ATH Holding Co., 2019 BL
30124, S.D. Ind., No. 1:15-cv-02062-TWP-MPB, 1/30/19.[GN]


APPLE INC: Lambert Avocat Applies for Class Action Lawsuit
----------------------------------------------------------
Joe Rossignol, writing for Mac Rumors, reports that Montréal-based
law firm Lambert Avocat Inc. has applied for a class action lawsuit
against Apple with the Superior Court of Quebec, seeking
compensation for all persons exposed to a major FaceTime privacy
bug that enabled users to eavesdrop on the people they call,
according to its website.

The proposed lawsuit seeks compensation for all Canadians who used
FaceTime on an iPhone, iPad, or iPod touch running iOS 12.1 or
later, or a Mac running macOS Mojave 10.4.1 or later, in their
possession.

This is the first pending class action lawsuit against Apple we
know of in relation to the FaceTime bug. An earlier lawsuit filed
by a lawyer in Houston, who claimed the bug allowed an unknown
person to listen in on sworn testimony, did not seek class action
status according to the court document we reviewed.

Due to the serious privacy implications of the FaceTime bug, there
may be more class action lawsuits to follow in the United States
and elsewhere.

Widely publicized on Jan. 28, the FaceTime bug allowed one person
to call another person via FaceTime, slide up on the interface and
enter their own phone number, and automatically gain access to
audio from the other person's device without that person accepting
the call. In some cases, even video was accessible.

Apple disabled Group FaceTime as a temporary server-side solution,
preventing the bug from working any longer, while it prepares a
software update with a permanent fix that will be released "later
this week."

It was later reported that Apple may have known about the bug for
over a week before it made headlines, something New York government
officials are investigating. Apple has yet to provide further
comment about the bug beyond promising a software update, but we'll
be sure to provide updates as we learn more.[GN]


APPLE INC: Sets Aside Money to Pay for Litigation Costs
-------------------------------------------------------
Business Insider reports that as 2017 turned to 2018, Apple faced a
swell of consumer anger.

Users had said for years that Apple slowed down their older iPhones
through software updates. When one maker of benchmark software
produced data and an analysis that showed a few notable software
updates seemed to slow down the iPhone's processor, criticism
exploded.

Apple said the processor slowdown was related to aging batteries,
and that the processor-throttling software was introduced to
prevent older iPhones from shutting down unexpectedly. But there
was a lot of consumer anger, leading to class-action lawsuits and
even investigations from the Department of Justice and the
Securities and Exchange Commission (SEC).

Apple said in a recent SEC filing that it has set aside some money
to pay for the litigation as a contingency.

"Apple believes that its iPhones were not defective, that the
performance management feature introduced with iOS updates 10.2.1
and 11.2 was intended to, and did, improve customers' user
experience, and that the Company did not make any misleading
statements or fail to disclose any material information," Apple
said in the 10-Q filing. "The Company has accrued its best estimate
for the ultimate resolution of these matters."

Apple declined to comment when asked by Business Insider about the
monetary value of that estimate.

While there are a lot of minor news stories about Apple bugs and
issues with its latest products, there are some signs that Apple's
battery saga could end up being material to the company's massive
bottom line.

As part of its apology, Apple offered discount battery replacements
to some iPhone users, which was cited by Apple executives as one
reason for its sales miss during this past holiday season. Apple
replaced 11 million batteries during 2018, up from the 1 to 2
million it would expect to replace during a typical year, according
to Apple blogger John Gruber.

There is also a class-action lawsuit that is starting to progress,
as Apple said in its filing. While class-action lawsuits like that
often take years to work through the courts, previous class-action
suits have resulted in $450 million judgments against the iPhone
maker.

So it's not surprising that Apple is setting aside money to pay for
litigation surrounding the processor-throttling update. The filing
also noted a lawsuit related to VirnetX over patents and the battle
with Qualcomm as other contingencies.

Here's the full language from Apple's filing:

iOS Performance Management Cases

"Various civil litigation matters have been filed in state and
federal courts in the U.S. and in various international
jurisdictions alleging violation of consumer protection laws,
fraud, computer intrusion and other causes of action related to the
Company's performance management feature used in its iPhone
operating systems, introduced to certain iPhones in iOS updates
10.2.1 and 11.2. The claims seek monetary damages and other
non-monetary relief. On April 5, 2018, several U.S. federal actions
were consolidated through a Multidistrict Litigation process into a
single action in the U.S. District Court for the Northern District
of California. In addition to civil litigation, the Company is also
responding to governmental investigations and requests for
information relating to the performance management feature. The
Company believes that its iPhones were not defective, that the
performance management feature introduced with iOS updates 10.2.1
and 11.2 was intended to, and did, improve customers' user
experience, and that the Company did not make any misleading
statements or fail to disclose any material information. The
Company has accrued its best estimate for the ultimate resolution
of these matters." [GN]


APPLE INC: Sued Over iPhone Charger Problems Due to iOS Updates
---------------------------------------------------------------
Joe Rossignol, writing for MacRumors, reports that California
resident Monica Emerson has filed a class action lawsuit against
Apple, accusing the company of releasing iOS updates which were
"specifically designed and programmed to reject, starting on
November of 2016, old iPhone chargers from properly charging the
iPhones."

The complaint, obtained by MacRumors, alleges that Ms. Emerson
bought an iPhone 7 in September 2016 and charged the device with
Apple's power adapter included in the box without issue until
around October 2017, when it stopped working alongside the alert
"this accessory may not be supported."

In or around October 2017, Plaintiff attempted to use her Apple
Charger and received a message that read "This accessory may not be
supported." Thus, requiring that people buy a new charger for her
iPhone. Upon learning this, Plaintiff felt ripped off, cheated, and
violated by Defendant.

The alert is part of Apple's system that aims to protect iOS
devices against potentially dangerous aftermarket accessories.

Ms. Emerson believes the alert forced her and thousands of other
customers in her situation to buy new chargers, with total claims
exceeding $5 million. As a result, she is suing Apple for damages,
accusing the company of false advertising, unfair business
practices, fraud, and other violations of California laws.

Ms. Emerson supposedly always used Apple's first-party charger, but
it's unclear whether it was connected to the iPhone with an
Apple-certified Lightning to USB cable under the Made for iPhone
program. If she was using an Apple power adapter with an
uncertified cable, then the message was correctly displayed.

While it's hard to believe that Apple released an iOS update that
prevented its own chargers from working—it simply doesn't make
sense—there have been scattered complaints of the "this accessory
may not be supported" system throwing false positives for
Apple-certified chargers and cables over the years.

False positives can occur for a variety of reasons, including
something as simple as a dirty pin on the Lightning connector.

Ms. Emerson is seeking a jury trial in the U.S. District Court for
Central California. [GN]


AR RESOURCES: Court Grants Bid to Dismiss Worley FDCPA Suit
-----------------------------------------------------------
The United States District Court for the Eastern District of
Missouri, Eastern Division, issued a Memorandum and Order granting
Defendant's Motion to Dismiss in the case captioned ALEAH WORLEY,
Plaintiff, v. AR RESOURCES, INC., Defendant. Case No. 4:18-CV-1409
PLC. (E.D. Mo.).

This putative class action arises under the Fair Debt Collection
Practices Act, 15 U.S.C. (FDCPA). Plaintiff Aleah Worley alleges
that Defendant AR Resources, Inc. sent her a collection letter
(Letter) in violation of several provisions of the FDCPA.

The Defendant asserts that the Plaintiff's petition must be
dismissed because the Letter does not violate the FDCPA. More
specifically, the Defendant maintains that the Letter identified
the creditor and therefore did not violate the FDCPA. The Plaintiff
counters that she pleaded sufficient facts to state a claim upon
which relief can be granted because the Letter was ambiguous and
confusing to the unsophisticated consumer.

The FDCPA broadly prohibits a debt collector from making a false,
deceptive or misleading representation or means in connection with
the collection of any debt and from using unfair or unconscionable
means to collect or attempt to collect any debt. When evaluating
whether a communication is false, deceptive, or misleading, a court
considers the perspective of an 'unsophisticated consumer.' This
standard "protects the uninformed or naive consumer, yet also
contains an objective element of reasonableness to protect debt
collectors from liability for peculiar interpretations of
collection letter.

The Plaintiff alleges that the Defendant violated all four of these
provisions by including in the Letter names of two entities EMER
PHYS SOLUTIONS OF S FLORI and JFK Medical Center. According to
Plaintiff, an unsophisticated consumer would have no way of knowing
who was billing her when both were stated on the collection
letter.

Upon review, the Court finds that the Letter complies with the
requirements of section 1692g(a)(2) by naming EMER PHYS SOLUTIONS
OF S FLORI as the creditor. In fact, the Letter twice identifies
EMER PHYS SOLUTIONS OF S FLORI as the creditor. First, it lists
EMER PHYS SOLUTIONS OF under the heading Creditor. Second, it
explains that our client, EMER PHYS SOLUTIONS OF S FLORI, JFK MED,
has referred your account to us for collection.

The fact that the name JFK MED follows EMER PHYS SOLUTIONS OF S
FLORI would not confuse an unsophisticated consumer. The Letter
makes reasonably clear that EMER PHYS SOLUTIONS OF S FLORI was the
creditor, and the services were provided at JFK Medical Center.
Including JFK Medical Center to clarify where the services were
rendered would not cause an unsophisticated consumer to believe
that JFK Medical Center was the creditor.

The Plaintiff further suggests that the Letter fails to identify
the creditor because it did not even take the time to spell out the
alleged creditor, instead.

In Lee, the debt collector, NCOP, purchased the right to collect
from the plaintiff a consumer debt that the plaintiff originally
owed Capital One. 962 F.Supp.2d at 485. NCOP's representative,
Forster & Garbus, sent the plaintiff a collection letter with two
reference lines that stated: Re: NCOP XI, LLC A/P/O CAPITAL ONE.
The court held that the plaintiff stated a plausible claim for
violations of sections 1692g, 1692e, and 1692f because: the letter
does not clearly and effectively convey NCOP's role in connection
with the debt and the unusual abbreviation A/P/O' and the name of
the original creditor, easily could have failed to alert the least
sophisticated that her debt was now owned by NCOP. Unlike the
collection letter in Lee, the Letter before this Court clearly
advises the consumer that EMER PHYS SOLUTIONS OF S FLORI is the
creditor and Defendant currently owns that debt.

The Plaintiffs claims for relief under the FDCPA fail because
Defendant's Letter clearly identified Emergency Physicians as the
creditor.

Accordingly, the Defendant's motion to dismiss pursuant to Rule
12(b)(6) is granted.

A full-text copy of the District Court's February 7, 2018
Memorandum and Order is available at https://tinyurl.com/y5fjck8z
from Leagle.com.

Aleah Worley, individually and on behalf of all others similarly
situated, Plaintiff, represented by Joel Spencer Halvorsen,
HALVORSEN KLOTE.

AR Resources, Inc., Defendant, represented by Louis J. Wade,
MCDOWELL AND RICE.


ARROWHEAD PHARMA: Continues to Defend Research Program Related Suit
-------------------------------------------------------------------
Arrowhead Pharmaceuticals, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on February 7, 2019,
for the quarterly period ended December 31, 2018, that the company
continues to defend itself against a consolidated class action suit
involving the company's drug research programs.

The Company and certain executive officers were named as defendants
in a putative consolidated class action in the United States
District Court for the Central District of California regarding
certain public statements in connection with the Company's drug
research programs.  

The consolidated class action, initially filed as Meller v.
Arrowhead Pharmaceuticals, Inc., et al., No. 2:16-cv-08505 (C.D.
Cal, filed Nov. 15, 2016 ), Siegel v. Arrowhead Pharmaceuticals,
Inc., et al., No. 2:16-cv-8954 (C.D. Cal., filed Dec. 2, 2016), and
Unz v. Arrowhead Pharmaceuticals, Inc., et al., No.2:17-cv-00310
(C.D. Cal., filed Jan. 13, 2017) asserts claims under Sections
10(b) and 20(a) of the Securities Exchange Act of 1934 regarding
certain public statements in connection with the Company’s drug
research programs and seek damages in an unspecified amount.  

Additionally, a putative stockholder derivative action captioned
Johnson v. Anzalone, et al., (Los Angeles County Superior Court,
filed January 19, 2017) asserting substantially similar claims is
pending in Los Angeles County Superior Court and is stayed pending
the related consolidated class action. Two additional putative
stockholder derivative actions, captioned Lucas v. Anzalone, et
al., No. 2:17-cv-03207 (C.D. Cal., filed April 28, 2017), and Singh
v. Anzalone, et al., No. 2:17-cv-03160 (C.D. Cal., filed April 27,
2017), alleging breach of fiduciary duty by the Company's Board of
Directors in connection with the alleged facts underlying the
securities claims, are pending in the United States District Court
for the Central District of California.  

The Lucas and Singh actions have been consolidated. On December 21,
2017, the federal district court dismissed the consolidated class
action with prejudice. On December 27, 2017 the plaintiffs appealed
the dismissal to the United States Court of Appeals for the Ninth
Circuit. The Lucas and Singh actions are stayed pending resolution
of the Ninth Circuit appeal.  

The Company believes it has meritorious defenses and intends to
vigorously defend itself in these matters.  The Company makes
provisions for liabilities when it is both probable that a
liability has been incurred and the amount can be reasonably
estimated. No such liability has been recorded related to these
matters. The Company cannot predict the ultimate outcome of this
matter and cannot accurately estimate any potential liability the
Company may incur or the impact of the results of this matter on
the Company.

Arrowhead Pharmaceuticals, Inc. develops medicines for the
treatment of intractable diseases in the United States. The company
was formerly known as Arrowhead Research Corporation and changed
its name to Arrowhead Pharmaceuticals, Inc. in April 2016.
Arrowhead Pharmaceuticals, Inc. was incorporated in 1989 and is
headquartered in Pasadena, California.


ARROWHEAD PHARMA: Suit over Hepatitis B Drug Research Ongoing
-------------------------------------------------------------
Arrowhead Pharmaceuticals, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on February 7, 2019,
for the quarterly period ended December 31, 2018, that the company
continues to defend a putative consolidated class action suit
regarding the company's public statements in connection with the
Company's hepatitis B drug research.

The Company and certain of its officers and directors were named as
defendants in a putative consolidated class action in the United
States District Court for the Central District of California
regarding certain public statements in connection with the
Company's hepatitis B drug research.  

The consolidated class action, initially filed as Wang v. Arrowhead
Research Corp., et al., No. 2:14-cv-07890 (C.D. Cal., filed Oct.
10, 2014), and Eskinazi v. Arrowhead Research Corp., et al., No.
2:14-cv-07911 (C.D. Cal., filed Oct. 13, 2014), asserted claims
under Sections 10(b) and 20(a) of the Securities Exchange Act of
1934 and sought damages in an unspecified amount.  

Additionally, three putative stockholder derivative actions
captioned Weisman v. Anzalone et al., No. 2:14-cv-08982 (C.D. Cal.,
filed Nov. 20, 2014), Bernstein (Backus) v. Anzalone, et al., No.
2:14-cv-09247 (C.D. Cal., filed Dec. 2, 2014); and Johnson v.
Anzalone, et al., No. 2:15-cv-00446 (C.D. Cal., filed Jan. 22,
2015), were filed in the United States District Court for the
Central District of California, alleging breach of fiduciary duty
by the Company's Board of Directors in connection with the alleged
facts underlying the securities claims.  

An additional consolidated derivative action asserting similar
claims was filed in Los Angeles County Superior Court, initially
filed as Bacchus v. Anzalone, et al., (L.A. Super., filed Mar. 5,
2015); and Jackson v. Anzalone, et al. (L.A. Super., filed Mar. 16,
2015).  

Each of these suits seeks damages in unspecified amounts and some
seek various forms of injunctive relief. On October 7, 2016, the
federal district court dismissed the consolidated class action with
prejudice. Following the dismissal of the consolidated class
action, the parties for the Weisman and Johnson actions jointly
stipulated to dismiss the actions, with the parties bearing their
own fees and costs. The parties to the Bernstein and consolidated
derivative action agreed to stay the matters pending the resolution
of the Ninth Circuit appeal of the dismissal of the consolidated
class action.  

On February 15, 2018, the Ninth Circuit issued a memorandum
affirming the district court's dismissal of all claims.  Plaintiffs
in the consolidated derivative action voluntarily dismissed their
case. The parties to the Bernstein action filed a stipulation to
continue the stay of the action pending resolution of the Ninth
Circuit appeal in Meller v. Arrowhead Pharmaceuticals, Inc., Case
No. 2:16-cv-08505 (C.D. Cal.).

The Company believes it has meritorious defenses and intends to
vigorously defend itself in each of these matters.  The Company
makes provisions for liabilities when it is both probable that a
liability has been incurred and the amount can be reasonably
estimated. No such liability has been recorded related to these
matters. The Company does not expect these matters to have a
material effect on its Consolidated Financial Statements.

Arrowhead Pharmaceuticals, Inc. develops medicines for the
treatment of intractable diseases in the United States. The company
was formerly known as Arrowhead Research Corporation and changed
its name to Arrowhead Pharmaceuticals, Inc. in April 2016.
Arrowhead Pharmaceuticals, Inc. was incorporated in 1989 and is
headquartered in Pasadena, California.


ASTEC INDUSTRIES: April 2 Lead Plaintiff Motion Deadline Set
------------------------------------------------------------
Hagens Berman Sobol Shapiro LLP alerts investors in Astec
Industries, Inc. (NASDAQ: ASTE) to the April 2, 2019 Lead Plaintiff
deadline in the securities class action pending in the United
States District Court for the Eastern District of Tennessee.  If
you purchased or otherwise acquired Astec Industries securities
between July 26, 2016 and October 22, 2018 (the "class period") and
suffered losses contact Hagens Berman Sobol Shapiro LLP.  For more
information visit https://www.hbsslaw.com/cases/ASTE or contact
Reed Kathrein, who is leading the firm's investigation, by calling
510-725-3000 or emailing ASTE@hbsslaw.com

According to the complaint, during the class period Defendants
misled investors about Astec's pellet plant business.

In a partial disclosure on July 24, 2018, Defendants announced
unresolved issues with the Company's Arkansas wood pellet plant
customer and their decision to pay $68 million and forgive about $7
million in receivables in exchange for the customer's release of
Astec from its contractual obligations.  That day, the price of
Astec shares fell about 20%, to close at $48.21.

Then, on October 23, 2018, Defendants revealed that Astec could end
up owning another pellet plant in Georgia.  In contrast, Defendants
previously stated Astec would focus on supplying equipment to the
pellet plant industry.  This news drove the price of Astec shares
down 25% to close at $35.51 that day.

"We're focused on investors' losses, the extent to which investors
may have been misled by senior management's statements, and whether
certain insider sales were improper," said Hagens Berman partner
Reed Kathrein.

Whistleblowers:  Persons with non-public information regarding
Astec should consider their options to help in the investigation or
take advantage of the SEC Whistleblower program.  Under the new
program, whistleblowers who provide original information may
receive rewards totaling up to 30 percent of any successful
recovery made by the SEC.  For more information, call Reed Kathrein
at 510-725-3000 or email ASTE@hbsslaw.com.

                     About Hagens Berman

Hagens Berman -- http://www.hbsslaw.com-- is a national
investor-rights law firm headquartered in Seattle, Washington with
80+ attorneys in 10 offices across the country.  The Firm
represents investors, whistleblowers, workers and consumers in
complex litigation. [GN]


ATHENAHEALTH: Shareholders Drop Class Action Over Proposed Sale
---------------------------------------------------------------
According to Becker's Hospital Review's Julie Spitzer, the Politico
Morning eHealth newsletter reports that shareholders have dropped
three class-action lawsuits against athenahealth over the proposed
sale of the company.

The lawsuits, filed earlier this year, claimed athenahealth failed
to disclose how it arrived at the sale price of $5.7 million -- the
figure private equity firm Veritas Capital and Elliott Management
affiliate Evergreen Coast Capital agreed to pay for the company in
November.

According to one of the lawsuits, athenahealth failed to disclose
the financial projections it relied upon to arrive at the cost of
the sale, as well as any potential conflicts of interest. That
complaint was brought under a section of the Securities Exchange
Act, which requires companies provide shareholders with a
definitive proxy statement that helps ensure shareholders' rights
are upheld during a merger or acquisition. [GN]


AXOGEN INC: March 11 Lead Plaintiff Bid Deadline
------------------------------------------------
ClaimsFiler, a FREE shareholder information service, reminds
investors that they have until March 11, 2019 to file lead
plaintiff applications in a securities class action lawsuit against
AxoGen, Inc. (NasdaqCM: AXGN), if they purchased the Company's
securities in connection with its November 2017 or May 2018
secondary public offering or between August 7, 2017 and December
18, 2018, inclusive (the "Class Period"). This action is pending in
the United States District Court for the Middle District of
Florida.

Get Help

AxoGen investors should visit us at
https://www.claimsfiler.com/cases/view-axogen-inc-securities-litigation
or call toll-free (844) 367-9658. Lawyers at Kahn Swick & Foti, LLC
are available to discuss your legal options.

                            About the Lawsuit

AxoGen and certain of its executives are charged with failing to
disclose material information during the Class Period, violating
federal securities laws.

On December 18, 2018, Seligman Investments reported that former
AxoGen employees had made allegations that the Company had engaged
in channel stuffing and backdating of revenue as well as the use of
"misleading operating metrics…that the company's definition of
‘active accounts' may overstate the actual number by a factor of
ten."

On this news, AxoGen's stock plummeted nearly 22%.

The case is Einhorn v. AxoGen, Inc. et al, 19-cv-00069. [GN]


BANK OF MONTREAL: Units Face Lawsuits Over Trailing Commissions
---------------------------------------------------------------
The Canadian Press reports that subsidiaries of three more Canadian
banks face potential class action lawsuits regarding trailing
commissions paid to discount brokerages by mutual funds.

The actions allege the defendants paid trailing commissions to
discount brokers that do not provide mutual fund investors with
services of value, such as professional investment advice, in
return for the fees.

The allegations have yet to be tested in court.

Siskinds LLP of London, Ont. and Bates Barristers PC announced on
Feb. 4 that their latest suits are against units of the Bank of
Montreal, National Bank and Royal Bank.

The two law firms have now filed a total of seven cases that seek
class action status to collect compensation on behalf of investors
who owned the funds.

The firms filed previous suits last year against units of
Toronto-Dominion Bank, Bank of Nova Scotia, Canadian Imperial Bank
of Commerce and Mackenzie, part of the Power Financial group.

The most recent cases have been filed on behalf of anybody who held
units of a BMO, National Bank, or RBC/PH&N mutual fund through a
discount broker. [GN]


BANK OF NEW YORK: June 17 ADR FX Settlement Hearing Set
-------------------------------------------------------
The following statement is being issued by Kessler Topaz Meltzer &
Check, LLP and Lieff Cabraser Heimann & Bernstein, LLP regarding
The Bank of New York Mellon ADR FX Litigation.

Pursuant to Federal Rule of Civil Procedure 23 and Court Order, the
Court has directed notice of the $72.5 million settlement proposed
in In re: The Bank of New York Mellon ADR FX Litigation, No.
16-CV-00212-JPO-JLC (S.D.N.Y.) to the Settlement Class.  If
approved, the settlement will resolve all claims in the litigation.
This notice provides basic information. It is important that you
review the detailed notice ("Notice") found at the website below.

What is this lawsuit about:
Lead Plaintiffs allege that, during the relevant time period, BNYM
systematically deducted impermissible fees for conducting foreign
exchange from dividends and/or cash distributions issued by foreign
companies, and owed to ADR holders. BNYM has denied, and continues
to deny, any wrongdoing or liability whatsoever.

Who is a Settlement Class Member:
All entities and individuals who at any time from January 1, 1997
through January 17, 2019 held (directly or indirectly, registered
or beneficially), or otherwise claim any entitlement to any payment
(whether a dividend, rights offering, interest on capital, sale of
shares, or other distribution) in connection with, any ADR for
which BNYM acted as the depositary sponsored by an issuer that is
identified in the Appendix to the Notice.  Certain entities and
individuals are excluded from the definition of the Settlement
Class as set forth in the Notice.

What are the benefits:
If the Court approves the settlement, the proceeds, after deduction
of Court-approved notice and administration costs, attorneys' fees
and expenses, and any applicable taxes, will be distributed
pursuant to the Plan of Allocation set forth in the Notice, or
other plan approved by the Court.

What are my rights:
If you receive/have received a Post-Card Notice in the mail, you
are a Registered Holder (i.e., you hold (or held) your eligible
ADRs directly and your relevant information was provided by BNYM's
transfer agent), and you do not have to take any action to be
eligible for a settlement payment.  If you do not receive/have not
received a Post-Card Notice in the mail, you are a Non-Registered
Holder and you must submit a Claim Form, postmarked (if mailed), or
online, by August 15, 2019, to be eligible for a settlement
payment.  Non-Registered Holder Settlement Class Members who do
nothing will not receive a payment, but will be bound by all Court
decisions.

If you are a Settlement Class Member and do not want to remain in
the Settlement Class, you may exclude yourself by request, received
by May 13, 2019, in accordance with the Notice. If you exclude
yourself, you will not be bound by any Court decisions in this
litigation and you will not receive a payment, but you will retain
any right you may have to pursue your own litigation at your own
expense concerning the settled claims.  Objections to the
settlement, Plan of Allocation, or request for attorneys' fees and
expenses must be received by May 13, 2019, in accordance with the
Notice.

A hearing will be held on June 17, 2019 at 3:00 p.m., before the
Honorable J. Paul Oetken, at the Thurgood Marshall U.S. Courthouse,
40 Foley Square, New York, NY 10007, to determine if the
settlement, Plan of Allocation, and/or request for fees and
expenses should be approved. Supporting papers will be posted on
the website once filed.

For more information visit www.bnymadrfxsettlement.com, email
info@bnymadrfxsettlement.com or call 866-447-6210.


BANK OF NEW YORK: May 23 Settlement Fairness Hearing Set
--------------------------------------------------------
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

Carver, et al.,

                                    Plaintiffs,

vs.



Bank of New York Mellon, et al.,

                                    Defendants.




No. 15-CV-10180 (JPO)(JLC)


PUBLICATION NOTICE OF (I) PENDENCY OF CLASS ACTION AND PROPOSED
SETTLEMENT; (II) FINAL APPROVAL HEARING; AND (III) MOTION FOR
ATTORNEYS' FEES AND REIMBURSEMENT OF LITIGATION EXPENSES

TO: All participants, beneficiaries, trustees, and fiduciaries of
an ERISA Entity that at any time during the period January 1, 1997
through December 20, 2018 held, directly or indirectly, American
Depositary Receipts for which The Bank of New York Mellon acted as
the depositary and provided foreign currency exchange transactional
services ("BNYM ADRs"). A list of BNYM ADRs is available for
download on the Settlement Website,
www.BNYMADRERISASettlement.com.

An "ERISA Entity" means an ERISA plan and any trust, pooled
account, collective investment vehicle, or group insurance
arrangement that files a Form 5500 annual return/report as a Direct
Filing Entity ("DFE") in accordance with the DFE Filing
Requirements, such as a group trust, master trust investment
account (MTIA), common/collective trust (CCT), pooled separate
account (PSA), 103-12 investment entity (102-12 IE), group
insurance arrangement (GSA), or collective investment vehicle that
held plan assets as defined by the U.S. Department of Labor
"Instructions for Form 5500, Annual Return/Report of Employee
Benefit Plan."

PLEASE READ THIS NOTICE CAREFULLY.
IF YOU ARE A MEMBER OF THE SETTLEMENT CLASS DESCRIBED ABOVE, THE
RIGHTS OF YOUR ERISA ENTITY, AND ITS PARTICIPANTS, BENEFICIARIES,
TRUSTEES, AND FIDUCIARIES, WILL BE AFFECTED BY THE PENDING ACTION
AND YOUR ERISA ENTITY MAY BE ENTITLED TO SHARE IN THE SETTLEMENT.

YOU ARE HEREBY NOTIFIED, pursuant to Rule 23 of the Federal Rules
of Civil Procedure and an Order of the United States District Court
for the Southern District of New York, that the Action has been
preliminarily certified as a class action for the purposes of
settlement and that the parties to the Action have reached a
proposed settlement (the "Settlement") for $12,500,000 in cash (the
"Settlement Fund") that, if approved, will resolve all claims in
the Action. A hearing will be held on May 23, 2019 at 3:00 p.m.,
before the Honorable J. Paul Oetken in Courtroom 706 of the
Thurgood Marshall United States Courthouse, 40 Foley Square, New
York, NY 10007, to determine: (i) whether the proposed Settlement
should be approved as fair, reasonable, and adequate; (ii) whether
the Action should be dismissed with prejudice against The Bank of
New York Mellon and BNY Mellon, National Association ("BNYM" or
"Defendants") and the Releases described in the Stipulation should
be granted; (iii) whether the proposed Plan of Allocation should be
approved as fair and reasonable; (iv) whether the Notice and the
means of dissemination thereof pursuant to the Settlement were
appropriate and reasonable; and (v) whether Lead Plaintiffs'
Counsel's application for an award of attorneys' fees and
Litigation Expenses (including Service Awards to Named Plaintiffs)
should be approved. If the Settlement is approved, Lead Plaintiffs'
Counsel (McTigue Law LLP and Ciresi Conlin LLP) will ask the Court
to award them attorneys' fees not to exceed 33 1/3% and
reimbursement of Litigation Expenses, including a $10,000 award to
each Named Plaintiff ("Service Awards") to compensate them for
their efforts and participation in the Action. If the Court
approves the Settlement, the settlement proceeds, after deduction
of Court-approved Notice and Administration Costs, attorneys' fees
and Litigation Expenses, including Service Awards to Named
Plaintiffs, and Taxes and Tax Expenses, will be distributed to
eligible ERISA Entities ("Settlement Entities") pursuant to the
Plan of Allocation in the Notice, or other plan of allocation
approved by the Court.

A Postcard Notice (or Validation Letter for those ERISA Entities
that have been identified as holding at least one BNYM ADR for
which BNYM provided foreign exchange transactional services during
the Settlement Class Period) is being mailed to all ERISA Entities
that filed a Form 5500 with the U.S. Department of Labor based on
the most current complete year of data on Form 5500 available
("Potential Class Entity"), directing them to the Settlement
Website, www.BNYMADRERISASettlement.com for more information about
the Settlement.

If you or your ERISA Entity receive a Validation Letter in the mail
(rather than Postcard Notice), that means that the ERISA Entity you
represent, or in which you participate or to which you are a
beneficiary ("Your Entity") was identified, based on structured
data produced in discovery in this Action, as holding at least one
BNYM ADR during the Settlement Class Period in respect of which
BNYM provided foreign exchange transactional services. Your Entity
is an "Identified Class Entity" and does not have to take any
further action in order to be eligible to receive a payment from
the Settlement Fund. Your Entity's payment amount, if any, will be
calculated using the information described in its Validation
Letter. It is important that you visit the Settlement Website using
the Claim Number and Password provided in Your Entity's Validation
Letter to verify the information regarding Your Entity's BNYM ADR
holdings. The information in Your Entity's Validation Letter may
not represent every BNYM ADR held by Your Entity during the
Settlement Class Period. If the information is incomplete, Your
Entity may supplement or correct it by visiting the Settlement
Website and submitting a revised Claim Form, which must be received
by April 29, 2019.  If Your Entity does not update the information,
the Claims Administrator will use the data in the Validation Letter
to calculate its Claim and Your Entity will waive its rights to
later supplement or correct it.

If you or Your Entity received a Postcard Notice in the mail
(rather than a Validation Letter), Your Entity has not yet been
identified as a Settlement Entity and is referred to in this
Settlement as a Potential Class Entity. If you believe Your Entity
may be a Settlement Entity, you have the following choices: (1)
Submit a Claim Form by April 29, 2019 through the Settlement
Website www.BNYMADRERISASettlement.com using the Claim Number and
Password provided on the Postcard Notice or (2) Do Nothing: If Your
Entity is a Settlement Plan and does nothing, Your Entity will not
receive a payment from this Settlement, but it and its
participants, beneficiaries, trustees, and fiduciaries will be
bound by any judgments or orders entered by the Court in this
Action.

You may object to the proposed Settlement, the proposed Plan of
Allocation, or Lead Plaintiffs' Counsel's motion for attorneys'
fees and reimbursement of Litigation Expenses. Any such objection
must be filed with the Court and delivered to Lead Plaintiffs'
Counsel and Defendants' Counsel such that they are received no
later than April 18, 2019, in accordance with the instructions set
forth in the Notice on the Settlement Website.

If Your Entity does not receive a Postcard Notice or a Validation
Letter but you believe Your Entity may be a Settlement Entity,
please visit www.BNYMADRERISASettlement.com for more information.
There, you will find the Notice and Plan of Allocation, a
Stipulation of Settlement, and other documents explaining the
rights of Settlement Class Members in connection with the
Settlement and the process to submit a Claim Form in order for Your
Entity to be eligible to receive a payment from the Settlement. You
or Your Entity may also contact the Claims Administrator Analytics
Consulting, LLC, toll-free at 1-855-773-0250 or via e-mail at
info@BNYMADRERISASettlement.com.

Any questions regarding this Publication Notice, the Action, the
Settlement, or Your Entity's eligibility to participate in the
Settlement may also be directed to Lead Plaintiffs' Counsel: Barry
Landy, Esq. or Heather M. McElroy, Esq., Ciresi Conlin LLP, 225
South Sixth Street, Suite 4600, Minneapolis, MN 55402,
www.ciresiconlin.com; or J. Brian McTigue, Esq. or Regina M.
Markey, Esq., McTigue Law LLP, 4530 Wisconsin Avenue, NW, Suite
300, Washington, DC 20016, adrfxsettlement@mctiguelaw.com.

Please do not contact the Court, the Clerk's office, BNYM, or its
counsel regarding this notice. All questions about this notice, the
Settlement, or Your Entity's eligibility to participate in the
Settlement should be directed to Lead Plaintiffs' Counsel or the
Claims Administrator.

DATED: February 20, 2019.                                

BY ORDER OF THE COURT
United States District Court
Southern District of New York


BHI ENERGY: Klapatch & Lee's Bid for Class Certification Granted
----------------------------------------------------------------
The Hon. Richard G. Stearns rules that the Plaintiffs' motion for
conditional certification will be allowed in the lawsuit titled
DENNIS KLAPATCH and RICHARD LEE, individually and for others
similarly situated v. BHI ENERGY I POWER SERVICES, LLC, Case No.
1:18-cv-11581-RGS (D. Mass.).

The class consists of "[a]ll employees of BHI who were, at any
point in the past 3 years, paid 'straight time for overtime' and
staffed to a power plant."

Plaintiffs Dennis Klapatch and Richard Lee allege that BHI
misclassified them as exempt from the overtime requirements of the
Fair Labor Standards Act and the Connecticut Minimum Wage Act, and
then failed to pay them overtime as required under the FLSA and
CMWA.[CC]


BIG CHIEF: Young Seeks Class Certification and Abatement of Order
-----------------------------------------------------------------
The Plaintiff in the lawsuit entitled BARNEY J. YOUNG, On Behalf of
Himself and All Others Similarly Situated v. BIG CHIEF PLANT
SERVICES LLC, et al., Case No. 5:18-cv-00411-SLP (W.D. Okla.),
files with the Court his Unopposed Motion for Conditional
Certification of Collective Action.

All Defendants also join the Plaintiff in filing a Joint Motion to
Abate Order Granting Conditional Certification.

Mr. Young filed his Original Complaint on April 27, 2018, alleging
damages under the Fair Labor Standards Act and requesting
collective action treatment.

The Parties have not yet reached an agreement as to the form of
notice and consent to join which will issue to putative collective
action members.  The Parties are engaging in substantive settlement
discussions, and believe that a deadline of 30 days to provide (1)
an agreed form of notice and proposed order conditionally
certifying the case; (2) any briefing related to the Parties'
positions on the notice; or (3) dismissal pursuant to settlement;
will permit the Parties to determine whether the case can be
resolved without expending any further judicial resources.

Any settlement reached in this case may resolve the claims of the
individuals, who have already opted-in to the lawsuit, and dismiss
the collective and class action claims without prejudice to the
putative class and collective action members.  Accordingly, the
Parties ask that the Court abate any forthcoming order that would
conditionally certify the collective action during this 30-day
period.[CC]

The Plaintiff is represented by:

          Rebecca Currier, Esq.
          Melinda Arbuckle, Esq.
          BARON & BUDD, P.C.
          3102 Oak Lawn Avenue, Suite 1100
          Dallas, TX 75219
          Telephone: (214) 521-3605
          Facsimile: (214) 520-1181
          E-mail: rcurrier@baronbudd.com
                  marbuckl@baronbudd.com

Defendants Big Chief Plant Services, LLC, Brad Marcum and Chad
Marcum are represented by:

          Mark R. McPhail, Esq.
          HARTZOG CONGER CASON
          201 Robert S. Kerr Avenue, Suite 1600
          Oklahoma City, OK 73102
          Telephone: (405) 235)-700
          Telecopier: (405) 996-3403
          E-mail: mmcphail@hartzoglaw.com


BIG OX: Homeowners File Class Action Over Noxious Odors at Plant
----------------------------------------------------------------
Siouxland News reports that that two people who say they were
driven from their homes as a result of noxious odors linked to the
Big Ox Energy plant in South Sioux City have filed a class-action
lawsuit in Federal court.

That lawsuit against Big Ox was filed by Gary Johnson and Sara
Blum, on behalf of themselves "and all others similarly situated",
up to 2,000 people.

The suit claims noxious odors created as a byproduct of Big Ox's
operations entered their homes and forced them to leave.

It's seeking damages against Big Ox Energy in excess of $5 million.
[GN]


BMW: Justice Tom Bathurst Withdraws From Class Actions Appeal
-------------------------------------------------------------
Michael Pelly, writing for Australian Financial Review, reports
that there was a late withdrawal from the historic joint sitting of
the Federal Court and NSW Supreme Court -- NSW Chief Justice Tom
Bathurst. All thanks to his 19-year-old BMW.

Justice Bathurst had been a prime mover in the courts coming
together for two appeals concerning common fund orders in class
actions, which allow law firms to charge fees to all class members
-- not just the ones they sign up.

Westpac (life insurance premiums) and BMW (faulty airbags) argue
that such orders violate the "vibe" part of the Constitution --
section 51 (31) -- which says there can be no acquisition of
property other than on just terms.

NSW Chief Justice Tom Bathurst had to withdraw from a class actions
appeal because he owns a BMW. Wolter Peeters

Justice Bathurst and the Fed's chief, James Allsop, were tipped as
certain starters, but when lists appeared for the hearing in Court
1 of the Federal Court Bathurst's name was missing.

NSW Court of Appeal judge Tony Meagher told the hearing that "the
Chief Justice received a notice which indicated he was a member of
one -- a member of the class in the BMW proceedings -- and
obviously had to stand down".

Chief Justice Bathurst explained that he had a 19-year-old Beemer
which he doesn't use that much, save for driving down to the beach
for a morning swim.

"The long and the short of it is that the Thursday before the
hearing, I got a notice regarding a recall because it was said to
have defective airbags," he told Hearsay.

"I said 'oh, this means I'm involved in this class'.

"For a moment, it didn't worry me, because a lot of these class
actions, when they frame the class, they exclude judicial
officers.

"This one didn't, so I was a member of the class [which is open to
all those potentially affected].

"I thought it was inappropriate in those circumstances that I
sit."

The BMW claim is in the Supreme Court so Justice Bathurst would
have been passing judgment as a current member of the class. He
also said he was wary of causing any problems with what is a trial
run for further co-operation between the two courts.

Justice Bathurst said he was proposing to opt out of the claim "as
soon as possible", but that didn't help the situation at hand.

"I did a lot of securities class actions at the bar and you always
excluded judicial officers because of the possibility of them or
their superannuation having some shares, but this one seems to have
overlooked it."

Federal Court plan ambitious
Co-operation between courts might be the best chance for class
action reform in the immediate future.

When the ALRC report was released recently, the government said it
would embark on a fresh round of consultations on the issue with
stakeholders. So there's clearly no rush.

With only a handful of Senate sitting days before the election, the
government will be putting its energy into Hayne report
legislation.

The super-charging of the Federal Court to take over corporate
criminal prosecutions has received broad support, but it has an
ambitious timetable given the level of complexity involved.

Porter wants a January 1, 2020, start date, but he hasn't even
started discussions of any note with the states. There are also
problems around hung juries -- the Federal Court must have
unanimous verdicts -- and what happens when there is a federal
charge and a state charge on the same sheet.

Calling out harassment
The Victorian Legal Services Board and Commissioner announced on
Feb. 6 they were undertaking a long-term program focusing on
addressing sexual harassment within the legal profession.

Law Institute of Victoria president Stuart Webb said: "We stand
side by side with the regulator to identify the problem, call it
out and act on any complaints."

Both cited research showing one in five Australians were sexually
harassed in the workplace in the past 12 months. [GN]


BOLL WEEVIL: Ark. High Ct. Flips Conley Class Certification Denial
------------------------------------------------------------------
The Supreme Court of Arkansas issued an Opinion reversing the
Circuit Court's judgment denying Plaintiffs' Third Amended Motion
for Class Certification in the case captioned HERMAN CONLEY,
KENNETH EDWARDS, AND JAMES TATE, SR., INDIVIDUALLY AND O/B/O A
CLASS OF SIMILARLY SITUATED PERSONS, Appellants, v. BOLL WEEVIL
PAWN COMPANY, INC, Appellee. No. CV-17-678. (Ark.).

Conley appeals the order from Pulaski County Circuit Court denying
his third amended motion for class certification.

Conley filed a class-action complaint against Boll Weevil in
Pulaski County Circuit Court.

Conley's complaint alleged that Boll Weevil was charging excessive
interest in violation of the Arkansas Constitution and the Arkansas
Deceptive Trade Practices Act. For its general factual
underpinning, Conley's complaint alleged that Boll Weevil engages
in pawn transactions, a typical example of which would involve a
consumer delivering physical possession, control and when
applicable title to his or her property to Boll Weevil. In
exchange, Boll Weevil extends a sum of money equal to a percentage
of 10-30% of the property's actual value, with monthly interest
accruing on the entire sum at 20.25% for each month the money is
not repaid in full.   

Conley filed a third amended motion for class certification asking
the trial court to certify two classes consisting of Boll Weevil's
pawn transaction customers. The two proposed classes were defined
as follows:

     Class A: All consumers who have entered into pawn transactions
with Boll Weevil since June 2, 2011 continuing up through and until
judgment may be rendered in this matter in which: 1) the term of
the pawn transaction, listed as the Maturity Date on the pawn
transaction agreement, is less than one (1) year and 2) the
consumer has made a pawn service fee payment, listed as Amount
Financed on the pawn transaction agreement, within one (1) year of
entering a pawn transaction with Boll Weevil.

     Class B: All consumers who have entered into pawn transactions
with Boll Weevil since June 2, 2011 continuing up through and until
judgment may be rendered in this matter in which: 1) the term of
the pawn transaction, listed as the Maturity Date on the pawn
transaction agreement, is less than one (1) year and 2) the pawn
service fee (listed as the Finance Charge on the pawn transaction
agreement) amounts to more than 17% of the amount dispersed to the
consumer by Boll Weevil, listed as the Amount Financed on the pawn
transaction agreement.

The circuit court's order was very limited, providing as follows:

   1. The proposed class does meet the requirement that the class
be numerous to the extent that joinder of all members is
impracticable.

   2. The proposed class lacks commonality in that there are no
questions of law or fact common to the class.

   3. The proposed class lacks typicality in that the claims or
defenses of the representative parties are not typical of the
claims or defenses of the class.

   4. By failing to meet each of the prerequisites for a class
certification, Plaintiff's Third Amended Motion for Class
Certification should be and hereby is denied.

Applicable Authority

To be certifiable, a proposed class must satisfy the six factors
set out at Ark. R. Civ. P. 23(a)-(b). Rule 23 provides in relevant
part as follows:

   "(a) Prerequisites to Class Action. One or more members of a
class may sue or be sued as representative parties on behalf of all
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 and their counsel will fairly and adequately
protect the interests of the class.

   "(b) Class Actions Maintainable. An action may be maintained as
a class action if the prerequisites of subdivision (a) are
satisfied, and the court finds that the questions of law or fact
common to the members of the class predominate over any questions
affecting only individual members, and that a class action is
superior to other available methods for the fair and efficient
adjudication of the controversy."

Applying these authorities to the case at bar, it is plain that the
circuit court's order denying class certification is inadequate.
BPS, 341 Ark. 834, 20 S.W.3d 403(2000) and Lenders, Title  353 Ark.
339, 107 S.W.3d 157 (2003), contemplate specific findings of fact
and conclusions of law on all six of the Rule 23 factors when Rule
52 is invoked. The circuit court's order here speaks nothing to
adequacy, predominance, or superiority; it only alludes to
numerosity, commonality, and typicality, and even its nominal
conclusions on these issues lack the specific factual underpinning
contemplated by BPS and Lenders Title. In short, regardless of
whether the circuit court's order could satisfy all of Rule 23's
stated requirements, the order certainly cannot satisfy Rule 52's
requirements of "specific findings of fact and conclusions of law.

Boll Weevil asks this court to adopt a rule whereby Rule 52's
requirements are only applicable where the circuit court grants
class certification, as was the case in BPS and Lenders Title, to
be distinguished from the case at bar, where the circuit court
denied class certification, but we decline to do so. Nowhere in BPS
or Lenders Title did we suggest that Rule 52's requirements are
only applicable where the circuit court grants class certification;
instead, these decisions indicate the opposite. Here, we reiterate,
for a class action to serve the purpose of an efficient and fair
means of resolving claims arising out of the same circumstances,
these issues, all six of them, must be analyzed, regardless of
whether the circuit court grants or denies class certification.
One of the fundamental reasons our rules allow for class-action
litigation is to promote efficiency and expedience, and our rules
of appellate procedure allow for interlocutory review of an order
granting or denying a motion to certify a case as a class action in
accordance with Rule 23 of the Arkansas Rules of Civil Procedure.

Accordingly, when Rule 52 is invoked, its requirements must apply
regardless of whether class certification is granted or denied,
lest we allow for up to, if not more than, six separate
interlocutory appeals for the six separate Rule 23 factors.

Even if this were not the case, the circuit court's order here
would still be inadequate. If nothing else, the circuit court's
order denying class certification only contemplates a single
proposed class, when Conley's third amended motion for class
certification proposed two separate classes, despite Conley's Rule
52 motion and subsequent objection to the circuit court's limited
order.

Accordingly, the Court must remand this case to the circuit court
for entry of specific findings of fact and conclusions of law on
Conley's motion for class certification, with respect to both
proposed classes. Even if the ruling contained in the circuit
court's order would have been correct as to one of the classes,
there is simply no indication of which class that decision would
pertain to, and even if there was such an indication, this court
would still be without any ruling as to the remaining proposed
class. The circuit court's order here is thus simply unreviewable.
While this court can affirm a circuit court's ruling if it is
correct for any reason, even if the reasoning relied upon by the
circuit was incorrect.
  
This circumstance also renders inappropriate any analysis of the
parties' remaining arguments in this appeal, for similar reasons.
Without intimating any sort of conclusion as to the overall
viability of either proposed class, it is plain that Conley's
arguments regarding commonality and typicality may be stronger or
weaker with respect to one of the proposed classes over the other.
The same is true of Boll Weevil's argument regarding
ascertainability. For these reasons, we decline to address any of
the party's remaining arguments at this juncture.

A full-text copy of the Arkansas Supreme Court's February 7, 2019
Opinion is available at https://tinyurl.com/y3238dgk from
Leagle.com.

Omavi Shukur, for appellants.

Williams & Anderson PLC by: Phil E. Kaplan, David M. Powell,
Heather G. Zachary, and Alec Gaines, for appellee.


BURLINGTON COUNTY, NJ: Judge Approves Strip Search Settlement
-------------------------------------------------------------
Jim Walsh, writing for Cherry Hill Courier-Post, reports that a
federal judge has approved payments of $400 each for people
alleging they were improperly strip-searched at Burlington County
Jail.

But while that group initially was estimated at almost 14,000
detainees, fewer than 2,400 people made claims by a Jan. 16
deadline, according to an opinion from U.S. District Judge Noel
Hillman.

Burlington County, which set aside almost $1.5 million for payments
to detainees, will now keep much of that money, the judge noted.

Judge Hillman approved separate payments by the county of $925,000
in attorneys' fees and costs for the detainees' lawyers, and up to
$300,000 to a firm that will administer the settlement fund.

The settlement resolves a class action lawsuit filed on behalf of
people taken to the Mount Holly jail for non-indictable offenses
between Feb. 26, 2006, and Feb. 28, 2013.

The lawsuit alleged Burlington County had an "unconstitutional and
illegal policy" of strip-searching detainees in that group,
including people held for unpaid parking tickets and traffic
fines.

The county, which admits no wrongdoing under the settlement,
revised its policies in 2013 to prohibit strip searches for such
detainees "in the absence of reasonable suspicion," Judge Hillman
noted.

In all, 2,391 former detainees filed claims by the deadline, a
court record says. That includes 541 disputed claims and 72 from
people previously unknown to either party.

The settlement also provides $80,000 for two people who represented
detainees in the class action suit.

Tammy Marie Haas, a Burlington County woman who sued the county in
2008, will receive $50,000. Conrad Szczpaniak, a Cinnaminson man
who sued in 2009, is to get $30,000.

Ms. Haas' lawsuit said the woman, then pregnant, was jailed briefly
in May 2006 for the "mistaken belief" that she was wanted on a
child support warrant.

The lawsuit said a female corrections officer ordered Haas to
remove her clothes and "to run her hands through her hair, open her
mouth, stick out her tongue, bend over, cough and spread her
buttocks."

In his opinion on Jan. 31, Judge Hillman noted one former detainee
had objected to the size of the payment to Haas.

But the judge observed Haas "was subject to lewd comments" after
filing the suit, in part because her husband was a corrections
officer at the jail.

He also noted an allegation by Haas that her husband, William
Layton, lost his job due to the lawsuit. And the judge pointed out
Ms. Haas was dropping a separate claim over a second "retaliatory"
strip search.

Judge Hillman also said the role of class representatives required
Ms. Haas and Mr. Szczpaniak "to make public the fact that they were
arrested (and the reasons for their arrest)" and to take part in
legal proceedings over a decade.

Mr. Szczpaniak's lawsuit said he was jailed three times in 2008 and
2009 after missing court appearances or failing to pay fines
related to a dispute that was "not criminal in nature."

Burlington County previously was the defendant in a separate
lawsuit brought by Albert Florence, a man strip-searched at the
jail after a traffic stop. In that case, a New Jersey State Police
database incorrectly listed an outstanding warrant for Florence.

The U.S. Supreme Court ruled 5-4 in the county's favor in April
2012, saying newly arrived detainees could be strip-searched, "no
matter what the circumstances"

Judge Hillman's ruling noted the high court's decision resolved a
federal claim "with finality," but allowed state law claims under
New Jersey's Civil Rights Act. [GN]


CALIFORNIA: DWC Sued Over Medical Evaluator's Sexual Abuses
-----------------------------------------------------------
Workcompcentral reports that three women who say they were sexually
assaulted by a qualified medical evaluator filed a class action
lawsuit against the California Division of Workers' Compensation, a
carrier and two third-party administrators who the women say should
have known about the doctor's unsavory reputation. The women, who
are identified as Jane Doe 1, Jane Doe 2 and Jane Doe 3, say they
were sexually harassed during exams with Dr. John D. Warbritton
III, who was a QME and also a popular agreed medical evaluator. Dr.
Warbritton pleaded guilty in May 2018 to transporting child
pornography. [GN]


CANADA: Proffitt & Cox Attorneys Represent ABC Residents
--------------------------------------------------------
Jenna Cisneros, writing for WIS10, reports that WIS is learning
more about a lawsuit that has been filed due to the tragic that
unfolded at the Allen Benedict Court Apartments.

The 16-page class-action lawsuit was filed by two tenants. One of
the two tenants lived in the complex for about five years while the
other resided there around three years.

The law firms of Proffitt & Cox and attorney Dave Maxfield, Esq. --
dave@consumerlawsc.com -- are representing the tenants.

WIS spoke with two of the attorneys, who say ideally they would
have liked to see residents return to their home and live in a safe
environment. However, as we learned from the attorney for the
Columbia Housing Authority, that will not be the case as residents
will not be allowed to return to their apartments.

"We had had a lot of reports that they had made complaints to the
housing authority for years," Dave Maxfield, one of the attorneys
said. "These are folks that are paying rent and the landlords'
obligations here, whether it's the CHA or private landlord, are the
same. They have to provide a safe premise for people to live in."

One of the causes of action in the lawsuit is about the South
Carolina Residential Landlord and Tenant Act, where if you put a
landlord on notice of a complaint -- the landlord has a certain
amount of time to remedy it.

After speaking with residents throughout the week, WIS has
continuously heard tenants claim that they, as well as other
tenants, have experienced or suspected gas leaks for months or even
years at the complex. They also claim that heating systems were
poorly maintained -- which resulted, they claim, in repeated and
ongoing known and suspected gas leaks.

So where does the accountability lie?

"Right now, we're not ready to put the blame on a particular
individual. The housing authority as a whole is responsible for the
property and is responsible for keeping it safe as it's required
under the law," said Ron Cox, Esq. who is also representing the
tenants who filed the lawsuit.

The attorneys said they are seeking compensation for the fact
tenants have been deprived of a safe and habitable environment that
they've been paying rent for.

"At this point, the lawsuit just seeks remedies from the CHA."
Maxfield said.

However, Maxfield said that could change as the investigations
continue. Anonymous ABC tenants said they are ready for justice.

"We deserve that, we deserve to be treated better," a tenant said.

Attorneys say they are seeking for the two residents that filed
this lawsuit to represent all of Allen Benedict Court residents,
but the court will have to make a preliminary determination if they
are allowed to do that.

A judge will decide whether to include former tenants who lived at
Allen Benedict Court in the past three years.

"We are trying to fight for them, we are trying to make something
that was wrong, right," Cox said. "Our clients and other residents
have been yanked out of their homes. You have mothers with small
children and other families that have been displaced, moved into
hotels, moved across towns, into strange environments, some of them
have moved into multiple hotels and their lives are in chaos and
have been turned upside down right now because of the failings of
the housing authority."[GN]


CAPITAL ONE: Langer Moves to Certify Repossession Notice Class
--------------------------------------------------------------
The Plaintiffs in the lawsuit styled RANDY LANGER and JAMES LANGER
v. CAPITAL ONE AUTO FINANCE, a division of CAPITAL ONE, N.A., Case
No. 2:16-cv-06130-HB (E.D. Pa.), file with the Court their First
Amended Motion for Class Certification.

The Langers originally filed a Motion for Class Certification (or
in the Alternative, a Stay of Briefing on Class Certification) and
supporting Brief, in the Philadelphia County Common Pleas Court on
October 21, 2016, prior to the case's removal.  The District Court
subsequently vacated previous scheduling orders to enable the
parties to attempt to resolve this matter.

After engaging in some discovery, the Plaintiffs submit that they
have established sufficient facts to warrant class certification
for the Repossession Notice Class (Class I), and file this First
Amended Motion and Brief in Support of Class Certification as to
Class I.

The Plaintiffs seek to represent a class ("Repossession Notice
Class") consisting of all persons: (a) who financed a motor vehicle
primarily for personal, family or household use through COAF, or
whose consumer loan contract was assigned to COAF; and, (b) from
whom COAF, as secured party, repossessed the vehicle or ordered it
to be repossessed; and, (c) who had a Pennsylvania address as of
the date of repossession; and (d) who, within the six years prior
to the filing of this complaint, through the date of class
certification: (i) were sent a Notice of Repossession by COAF or
its agent which failed to provide a minimum period of 15-days'
notice of sale or disposition; or (ii) were sent no Notice of
Repossession by COAF.

The Plaintiffs also ask the Court to appoint Richard Shenkan, Esq.,
and Shenkan Injury Lawyers, LLC, as class counsel; and to delay any
certification decision on the Post-Sale Notice Class until further
discovery and an amended motion and/or supplemental brief are
filed.[CC]

The Plaintiffs are represented by:

          Richard Shenkan, Esq.
          SHENKAN INJURY LAWYERS, LLC
          6550 Lakeshore St.
          West Bloomfield, MI 48323
          Telephone: (248) 562-1320
          Facsimile: (888) 769-1774
          E-mail: rshenkan@shenkanlaw.com


CARDINAL HEALTH: Trial in 3 Opioid-Related Suits Set for October
----------------------------------------------------------------
Cardinal Health, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on February 7, 2019, for the
quarterly period ended December 31, 2018, that the U.S. District
Court for the Northern District of Ohio has ordered that three
opioid-related lawsuits be set for trial for October 2019.

Pharmaceutical wholesale distributors, including Cardinal Health,
have been named as defendants in over 1,500 lawsuits relating to
the distribution of prescription opioid pain medications. These
lawsuits have been filed in various federal, state, and other
courts by a variety of plaintiffs, primarily counties,
municipalities and other political subdivisions. Plaintiffs also
include 10 state attorneys general, unions and other health and
welfare funds, hospital systems and other healthcare providers, as
well as individuals.

Of these lawsuits, 56 are purported class actions. The lawsuits
seek equitable relief and monetary damages based on a variety of
legal theories including various common law claims, such as
negligence, public nuisance and unjust enrichment as well as
violations of controlled substance laws, the Racketeer Influenced
and Corrupt Organizations Act and various other statutes. Many also
name pharmaceutical manufacturers, retail pharmacy chains and other
entities as defendants.

The vast majority of these lawsuits were filed in U.S. federal
court and have been transferred for consolidated pre-trial
proceedings in a Multi-District Litigation proceeding in the U.S.
District Court for the Northern District of Ohio. In December 2018,
the court denied the distributor defendants' motions to dismiss the
complaints associated with those lawsuits. The distributors have
continued to engage in preliminary discussions with various
parties, including state attorneys general, regarding possible
resolution structures.

In addition, 39 state attorneys general have formed a multi-state
task force to investigate the manufacturing, distribution,
dispensing and prescribing practices of opioid medications.

Cardinal Health said, "We have received requests related to this
multi-state investigation, as well as separate civil investigative
demands, subpoenas or requests for information from these and other
state attorneys general offices. We are cooperating with the
offices conducting these investigations. We are vigorously
defending ourselves in all of these opioid-related matters. Given
the uncertainty surrounding these lawsuits and investigations, we
are unable to predict their outcome or estimate a range of
reasonably possible losses."

Cardinal Health, Inc. operates as an integrated healthcare services
and products company in the United States and internationally. It
provides medical products and pharmaceuticals, and solutions that
enhance supply chain efficiency for hospitals, healthcare systems,
pharmacies, ambulatory surgery centers, clinical laboratories, and
physician offices. Cardinal Health, Inc. was founded in 1979 and is
headquartered in Dublin, Ohio.


CASHCALL: Borrowers Need to Refile Class Action in State Court
--------------------------------------------------------------
Dena Aubin, writing for Reuters, reports that California borrowers
suing online lender CashCall will have to refile their class action
in state court after a federal judge in San Francisco declined to
keep the 10-year old case now that all federal claims have been
dismissed.

In a decision on Feb. 5, U.S. Magistrate Judge Thomas Hixson
rejected a request by both sides to retain jurisdiction, saying
that would require him to resolve "novel and undecided" issues of
California law. [GN]


CBL & ASSOCIATES: April 1 Trial Set for Tenants' Class Action
-------------------------------------------------------------
A class-action lawsuit filed by Hagens Berman and Buckner+Miles
against CBL & Associates for allegedly overcharging its mall
tenants for electricity is quickly ramping up to trial, after a
federal judge in Florida certified the class of small business
tenants, denied CBL's motion for summary judgment and set the case
for an Apr. 1, 2019 trial calendar.

The lawsuit states that CBL's tenants have been victim to a
"criminal enterprise" in which CBL knowingly overcharged its mall
tenants for electricity by up to 100 percent.

The notice of civil cases for trial sets a trial date of Apr. 1,
2019 at the U.S. District Courthouse for the Middle District of
Florida in Fort Myers. Exhibit and witness lists are due by both
parties in March.

According to the lawsuit originally filed in March 2016, CBL
promised its small business tenants that their electricity charges
would not exceed what CBL was charged by local public utilities for
the electricity the tenants actually used, but CBL breached its own
lease agreements -- and state law -- by inflating both the
electricity rates charged and the amounts of electricity used by
tenants.

In U.S. District Court Judge Paul A. Magnuson's recent order
certifying the class, he called CBL's objections "specious" and
denied CBL's attempts to strike expert witnesses chosen by
attorneys representing the mall tenants.

"According to Plaintiff, CBL and Valquest intentionally engaged in
a scheme to inflate both the usage and the rate for that usage.
Indeed, Plaintiff cites to evidence that Valquest and CBL knew what
they were doing was wrong and potentially illegal," the order
states. CBL hired Valquest to prepare estimates of electricity
usage (called "Valquest Surveys") for its tenants, and based its
bogus electricity charges on those surveys, according to the
allegations in the complaint.

The lawsuit details alleged racketeering and a conspiracy between
CBL and Valquest, in violation of the Racketeer Influence and
Corrupt Organization Act (RICO), as well as violations of the
Florida Deceptive and Unfair Trade Practices Act and Florida's
Civil Remedies for Criminal Practices Act.

The suit seeks relief for all individuals and entities that leased
mall space from and paid monthly energy charges to CBL and whose
electricity charges were determined based on a Valquest Survey.

                    About Hagens Berman

Hagens Berman Sobol Shapiro LLP -- http://www.hbsslaw.com-- is a
consumer-rights class-action law firm with 10 offices across the
country. The firm's tenacious drive for plaintiffs' rights has
earned it numerous national accolades, awards and titles of "Most
Feared Plaintiff's Firm," and MVPs and Trailblazers of class-action
law. [GN]


CHIPOTLE MEXICAN: Bid to Dismiss Second Amended Complaint Underway
------------------------------------------------------------------
Chipotle Mexican Grill, Inc. said in its Form 10-K report filed
with the U.S. Securities and Exchange Commission on February 8,
2019, for the fiscal year ended December 31, 2018, that the company
is seeking dismissal of the second amended complaint in the
consolidated lawsuit by Bellwether Community Credit Union and Alcoa
Community Credit Union.

On May 4, 2017, Bellwether Community Credit Union filed a purported
class action complaint in the United States District Court for the
District of Colorado alleging that the company negligently failed
to provide adequate security to protect the payment card
information of customers of the plaintiffs and those of other
similarly situated credit unions, banks and other financial
institutions alleged to be part of the putative class, causing
those institutions to suffer financial losses.

The complaint also claims that the company was negligent per se
based on alleged violations of Section 5 of the Federal Trade
Commission Act and similar state laws. The plaintiff seeks monetary
damages, injunctive relief and attorneys' fees.  

On May 26, 2017, Alcoa Community Credit Union filed a purported
class action complaint in the U. S. District Court for the District
of Colorado making substantially the same allegations as the
Bellwether complaint and seeking substantially the same relief.

The Bellwether and Alcoa cases have been consolidated and will
proceed as a single action. On October 24, 2018, the court issued
an order granting in part and denying in part the company's motion
to dismiss the consolidated complaint, dismissing all claims other
than those brought under state unfair competition laws in
California and New Hampshire and plaintiffs’ request for
declaratory relief.

On December 10, 2018, the plaintiffs filed a second amended
consolidated complaint, and on January 25, 2019 the company filed a
motion to dismiss the second amended complaint.

Chipotle Mexican Grill, Inc., together with its subsidiaries,
operates Chipotle Mexican Grill restaurants. The company was
founded in 1993 and is headquartered in Newport Beach, California.


CHIPOTLE MEXICAN: Still Defends Consolidated Suit in Colorado
-------------------------------------------------------------
Chipotle Mexican Grill, Inc. said in its Form 10-K report filed
with the U.S. Securities and Exchange Commission on February 8,
2019, for the fiscal year ended December 31, 2018, that the company
continues to defend itself in the Gordon and Lawson/Conard
consolidated class action suit in Colorado.

On June 9, 2017, Todd Gordon filed a purported class action
complaint in the U. S. District Court for the District of Colorado
alleging that the company negligently failed to provide adequate
security to protect the payment card information of the plaintiff
and other similarly situated customers alleged to be part of the
putative class, causing some customers to suffer alleged injuries
and others to be at risk of possible future injuries.

The complaint also claims that the company was negligent per se
based on alleged violations of Section 5 of the Federal Trade
Commission Act and similar state laws, and also alleges breach of
contract, unjust enrichment, and violations of the Arizona Consumer
Fraud Act.

Additionally, on August 21, 2017, Greg Lawson and Judy Conard filed
a purported class action complaint in the U. S. District Court for
the District of Colorado making allegations substantially similar
to those in the Gordon complaint, and stating substantially similar
claims as well as claims under the Colorado Consumer Protection
Act.

The Gordon and Lawson/Conard cases have been consolidated and will
proceed as a single action. On September 26, 2018, the court issued
an order granting in part, and denying in part, the company's
motion to dismiss the consolidated complaint, including a dismissal
of the negligence and unjust enrichment claims in their entirety.

No further updates were provided in the Company's SEC report.

Chipotle Mexican Grill, Inc., together with its subsidiaries,
operates Chipotle Mexican Grill restaurants. The company was
founded in 1993 and is headquartered in Newport Beach, California.


COCONINO COUNTY, AZ: Plaintiff Asked to Establish Fed. Claim Basis
------------------------------------------------------------------
The United States District Court for the District of Arizona issued
an Order requiring Plaintiff to Prepare to Explanation Why His
Allegations of a Federal Claim Establish the Basis for a Valid
Federal Claim in the case captioned Jose Montelongo-Morales,
Plaintiff, v. James Driscoll, et al., Defendants. No.
CV-19-08025-PCT-ROS (DMF). D. Ariz.).

Before the Court is Plaintiff's request for temporary restraining
order previously filed in state court.

The Plaintiff believes Coconino County has a policy of continuing
to detain individuals who are eligible for release if federal
immigration officials have requested that continued detention.
Plaintiff filed his original complaint in Coconino County Superior
Court. According to Plaintiff, that complaint alleged only
violations of state law. Defendants, however, interpreted the
complaint as crafted to `artfully' avoid federal jurisdiction and
achieve an end run around a previous decision issued by Judge David
G. Campbell in Tenorino-Serrano v. Driscoll, 324 F.Supp.3d 1053 (D.
Ariz. 2018).

Based on their interpretation of the complaint, Defendants removed
the case to federal court.

After removal, the Plaintiff filed an amended complaint. The
amended complaint contains a claim for Injunctive Relief for
Violation of Federal Law as well as two claims for relief under
Arizona law. The same day he filed his amended complaint, Plaintiff
also filed notice of a request for temporary restraining order he
had previously filed in state court. Because that request was filed
before Plaintiff added his federal claim, the motion addresses only
the merits of Plaintiff's state-law claims.

The Defendants filed an opposition to the request for a temporary
restraining order, but did not address the merits. Instead,
Defendants merely argued they would need at least 21 days to
respond to Plaintiff's TRO Motion.  

The Defendants may remove civil actions brought in state court over
which the federal court would have original jurisdiction. That is,
only state-court actions that originally could have been filed in
federal court may be removed to federal court by the defendant.

An exception to the well-pleaded complaint rule, however, is the
artful pleading doctrine. That doctrine prevents a plaintiff from
preventing removal by omitting to plead necessary federal questions
in a complaint. Courts have employed the artful pleading doctrine
in: (1) complete preemption cases (2) substantial federal question
cases and (3) cases involving federal preclusion.  

There is no question that Plaintiff did not allege any federal
claims in his original complaint. Rather, Defendants maintain
Plaintiff artfully pled his state law claims to expressly avoid
federal jurisdiction. The Court is skeptical that invocation of the
artful pleading doctrine is appropriate in this instance.

The Defendants present three arguments why the artful pleading
doctrine applies: this case implicates complete preemption, the
requested relief is necessarily federal in character, and
Plaintiff's right to relief depends on substantial, disputed
federal questions.  

The Defendants cite no authority that Plaintiff's state law claims
are completely preempted because the exclusive cause of action for
the claim asserted lies in federal statutory authority. Indeed, the
only cases Defendants cite are non-binding out of Circuit cases
that say such claims could be constitutionally preempted.

Next, the Defendants argue the Plaintiff's requested relief is
necessarily federal in character. Defendants seem to make two
distinct arguments in support of this assertion. Defendants first
allege that they were acting under color and authority of federal
law by cooperating with the Attorney General in the identification,
apprehension, detention, or removal of aliens not lawfully present
in the United States. But Defendants did not remove this action on
the basis of Defendants' federal conduct or potential defense under
28 U.S.C. Section 1442 (federal officer removal). It is also
unclear that 8 U.S.C. Section 1357(g) dictates that Defendants were
acting under color of federal law when nothing in that provision
clearly authorizes their conduct in detaining individuals in these
circumstances.

Finally, the Defendants argue the Plaintiff's complaint raises a
substantial, disputed federal question. The Defendants argue A.R.S.
Section 11-1051(A) explicitly prohibits any limitations on
cooperation with federal immigration authorities and the Supreme
Court upheld this provision in Arizona v. United States, 567 U.S.
387 411-415 (2012). Thus, Defendants believe the Court will be
required to "explore the full extent that cooperation with federal
immigration is permitted by federal law. But whether something is
permitted by federal law appears irrelevant. After all, if
something is permitted by federal law, but prohibited by state law,
there is no obvious reason to even reach the federal issue. And
state courts can decide this issue.

The Defendants also argue this case will require a court determine
whether state officers act with federal authority when detaining
individuals and whether state officers can arrest individuals based
on a federal warrant. But again, if state law prohibits such
activities, it is unclear why the federal law issues would ever be
reached. A state law prohibiting something would not be a violation
of federal law, absent at least a claim that the state-law
prohibition violated federal law. Again, state courts can decide
this issue.

The Defendants' invocation of the artful-pleading doctrine leaves
much to be desired. Based on a quick review of the issues, there is
a substantial likelihood the removal of this case to federal court
was improper. And if nothing had happened after removal, the case
would have to be remanded to state court. But after the case was
removed, Plaintiff amended his complaint to attempt to state a
federal claim. According to Plaintiff, the inclusion of a federal
claim means this Court has jurisdiction over this case. While that
might not be entirely accurate, it ultimately might not matter.

First, assuming the original complaint did not state a federal
claim for relief, Plaintiff's decision to amend his complaint to
add a federal claim would not be enough to prevent remand of this
case.3 Second, given Plaintiff's decision to add a federal claim,
if the case eventually proceeds to judgment on all of his claims,
any perceived defect in the removal would not be a basis to present
a jurisdictional challenge to the judgment. Accordingly, this case
may be able to remain in federal court, provided Plaintiff is
willing to do so. When making his evaluation, Plaintiff should
consider the possibility that if the Court resolves the federal
claim before the state-law claims, the state-law claims might be
remanded to state court.  

As a final matter, the Court notes the viability of Plaintiff's
federal claim is far from clear. Plaintiff's federal claim is that
Defendants are acting in contravention of applicable federal
statutes and regulations. But a review of those statutes and
regulations does not elucidate what Plaintiff has in mind because
none of them appear to authorize a private right of action. It is
true that Plaintiff may not need a statutory cause of action if he
is invoking the Ex parte Young doctrine which permits courts of
equity to enjoin enforcement of state statutes that violate the
Constitution or conflict with other federal laws, even in the
absence of a statutory cause of action. But if that is what
Plaintiff intends, his amended complaint does not indicate how
Defendants' actions violate federal law. Thus, at present,
Plaintiff's unadorned, the-defendant-unlawfully-harmed-me
accusation is unlikely to state a plausible claim for relief.   

At the hearing, Plaintiff should be prepared to explain why his
allegations of a federal claim establish the basis for a valid
federal claim.

A full-text copy of the District Court's February 7, 2019 Order is
available at https://tinyurl.com/y3dgjc5t from Leagle.com.

Jose Montelongo-Morales, as an individual, an on behalf of all
others similarly situated, Plaintiff, represented by Lee Brooke
Phillips, Law Offices of Lee Phillips PC, Robert Sherrod Malone,
Jr., Law Office of Robert S. Malone, Kathleen E. Brody, ACLU &
William Bradford Peard, ACLU.

James Driscoll, Coconino County Sheriff, in their official
capacities & Matt Figueroa, Jail Commander of the Coconino County
Jail; in their official capacities, Defendants, represented by
Derek Ryan Graffious -- dgraffious@jshfirm.com -- Jones Skelton &
Hochuli PLC, John T. Masterson -- jmasterson@jshfirm.com -- Jones
Skelton & Hochuli PLC, Justin Michael Ackerman --
jackerman@jshfirm.com -- Jones Skelton & Hochuli PLC & Michele
Molinario -- mmolinario@jshfirm.com -- Jones Skelton & Hochuli
PLC.


COOPERSURGICAL INC: Sawyer Sues Over Unsolicited Advertisements
---------------------------------------------------------------
William P. Sawyer, M.D., individually and as the representative of
a class of similarly situated persons, Plaintiff, v.
Coopersurgical, Inc., Defendant, Case No. 3:19-cv-00295-MPS (D.
Conn., February 27, 2019) brought this case as a class action
asserting claims against Defendant under the Telephone Consumer
Protection Act of 1991 ("TCPA").

This case challenges Defendant's practice of sending "unsolicited
advertisements" by facsimile. The Defendant has sent facsimile
transmissions of unsolicited advertisements to Plaintiff and the
Class in violation of the TCPA, including, but not limited to, the
facsimile transmission of an unsolicited advertisement on or about
September 26, 2018.

Plaintiff is informed and believes, and upon such information and
belief avers, that the Defendant has sent, and continues to send,
unsolicited advertisements via facsimile transmission in violation
of the TCPA, including but not limited to those advertisements sent
to Plaintiff, says the complaint.

Plaintiff, William P. Sawyer, M.D., is an Ohio resident.

Coopersurgical, Inc., is a Delaware corporation with its principal
place of business in Trumbull, Connecticut.[BN]

The Plaintiff is represented by:

     Ryan M. Kelly, Esq.
     ANDERSON + WANCA
     3701 Algonquin Road, Suite 500
     Rolling Meadows, IL 60008
     Phone: 847-368-1500
     Email: rkelly@andersonwanca.com


CP OPCO: Court Sets Settlement Schedule in McDonald
---------------------------------------------------
The United States District Court for the Northern District of
California issued an Order setting Settlement Schedule in the case
captioned DAVID McDONALD, Plaintiff, v. CP OPCO, LLC, et al.,
Defendants. Case No. 17-cv-04915-HSG. (N.D. Cal.).  A final
fairness hearing and hearing on motions May 9, 2019 2:00 p.m.

A full-text copy of the District Court's February 7, 2019 Order is
available at https://tinyurl.com/y6q59kcj from Leagle.com.

David McDonald, on behalf of himself and all others similarly
situated, Plaintiff, represented byEileen B. Goldsmith, Alshuler
Berzon LLP, James M. Finberg -- jfinberg@altshulerberzon.com --
Altshuler Berzon LLP, John T. Mullan -- jtm@rezlaw.com -- Rudy
Exelrod Zieff & Lowe, L.L.P., Chaya M. Mandelbaum --
cmm@rezlaw.comm -- Rudy Exelrod Zieff & Lowe, L.L.P., Meghan F.
Loisel -- mfl@rezlaw.com -- Rudy Exelrod Zieff & Lowe L.L.P.,
Meredith Anne Johnson -- mjohnson@altshulerberzon.com -- Altshuler
Berzon LLP & Michelle G. Lee -- mgl@rezlaw.com -- Rudy Exelrod
Zieff & Lowe, LLP.

Insperity PEO Services, L.P., Defendant, represented by Christopher
M. Ahearn -- cahearn@fisherphillips.com -- Fisher & Phillips LLP,
Lauren Stockunas -- lstockunas@fisherphillips.com -- Fisher and
Phillips LLP & Mark Jarrod Jacobs -- mjacobs@fisherphillips.com --
Fisher & Phillips LLP.

Apollo Global Management, LLC, Defendant, represented by Andrew J.
Ehrlich -- aehrlich@paulweiss.com -- Paul Weiss Rifkind Wharton &
Garrison LLP, pro hac vice, Gregory F. Laufer --
glaufer@paulweiss.com -- Paul Weiss Rifkind Wharton & Garrison LLP,
pro hac vice, Michelle Carrie Doolin -- mdoolin@cooley.com --
Cooley LLP & Summer Jerre Wynn  -- swynn@cooley.com -- Cooley LLP.

Apollo Centre Street Partnership, L.P., Apollo Franklin
Partnership, L.P., Apollo Credit Opportunity Fund III AIV I, L.P.,
Apollo SK Strategic Investments, L.P., Apollo Special Opportunities
Managed Account, L.P. & Apollo Zeus Strategic Investments, L.P.,
Defendants, represented by Andrew J. Ehrlich, Paul Weiss Rifkind
Wharton & Garrison LLP, Gregory F. Laufer, Paul Weiss Rifkind
Wharton & Garrison LLP, Michelle Carrie Doolin, Cooley LLP & Summer
Jerre Wynn, Cooley LLP.


EXPEDIA GROUP: Appeal in Nassau County Suit Remains Pending
-----------------------------------------------------------
Expedia Group, Inc. said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on February 8, 2019, for
the fiscal year ended December 31, 2018, that an appeal taken by
Nassau County and certain intervenor-plaintiffs from a court's
dismissal of their claims remains pending.

On October 24, 2006, the county of Nassau, New York, filed a
putative statewide class action in federal court against a number
of online travel companies, including Expedia, Hotels.com, Hotwire,
and Orbitz, which was subsequently dismissed and refiled in state
court.

The complaint alleged that the defendants failed to pay hotel
accommodation taxes as required by local ordinances to certain
local governments in New York. The trial court certified the case
as a class action but the New York Supreme Court Appellate Division
reversed that order.

Additional county/city plaintiffs subsequently joined the case as
intervenor plaintiffs. On December 2, 2016, the court granted
defendants' motion for summary judgment with respect to Nassau
County's claims on the grounds that the enabling statute for
plaintiff's tax ordinance did not impose a tax on defendants' fees.


On March 22, 2017, the court granted defendants' motion for summary
judgment against the additional intervenor plaintiffs. Nassau
County and the intervenor-plaintiffs appealed the court's dismissal
of their claims and that appeal remains pending.

Expedia Group, Inc., together with its subsidiaries, operates as an
online travel company in the United States and internationally. It
operates through Core OTA, Trivago, HomeAway, and Egencia segments.
Expedia Group, Inc. was founded in 1996 and is headquartered in
Bellevue, Washington.


EXPEDIA GROUP: Appeal in Pine Bluff Advertising Suit Underway
-------------------------------------------------------------
Expedia Group, Inc. said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on February 8, 2019, for
the fiscal year ended December 31, 2018, that the Arkansas Supreme
Court has deferred ruling on the plaintiffs' motion to dismiss the
defendants' appeal from a class action decision.  The dismissal
bid, as well as the defendants' appeal on merits, remains pending.

On September 25, 2009, Pine Bluff Advertising and Promotion
Commission and Jefferson County filed a class action against a
number of online travel companies, including Expedia, Hotels.com,
Hotwire and Orbitz alleging that defendants failed to collect
and/or pay taxes under hotel tax occupancy ordinances.

The court denied defendants' motion to dismiss and granted
plaintiffs' motion for class certification. Defendants appealed the
class certification decision and, on October 10, 2013, the Arkansas
Supreme Court affirmed that decision. On February 1, 2018, the
trial court granted plaintiffs' motion for summary judgment and
denied defendants' motion for summary judgment on the issue of tax
liability. Defendants appealed and the plaintiffs filed a motion to
dismiss the appeal as premature.

On October 4, 2018, the Arkansas Supreme Court deferred ruling on
the plaintiffs' motion to dismiss the defendants' appeal, combining
it with defendants' appeal on the merits. The motion and appeal
remain pending.

Expedia Group, Inc., together with its subsidiaries, operates as an
online travel company in the United States and internationally. It
operates through Core OTA, Trivago, HomeAway, and Egencia segments.
Expedia Group, Inc. was founded in 1996 and is headquartered in
Bellevue, Washington.


EXPEDIA GROUP: Awaits Court OK on Renewed Class Certification Bid
-----------------------------------------------------------------
Expedia Group, Inc. said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on February 8, 2019, for
the fiscal year ended December 31, 2018, that the parties in the
Buckeye Tree Lodge lawsuit continue to await the court's decision
on plaintiffs' renewed motion for class certification.

On August 17, 2016, a putative class action lawsuit was filed in
federal district court in the Northern District of California
against Expedia, Hotels.com, Orbitz, Expedia Australia Investments
Pty Ltd. and trivago relating to alleged false advertising. The
putative class is comprised of hotels and other providers of
overnight accommodations whose names appeared on the Expedia Group
defendants' websites with whom the defendants allegedly did not
have a booking agreement during the relevant time period.

The complaint asserts claims against the Expedia Group defendants
for violations of the Lanham Act, the California Business &
Professions Code, intentional and negligent interference with
prospective economic advantage, unjust enrichment and restitution.
On January 12, 2017, the court granted defendants' motion to
dismiss plaintiff's claims for intentional and negligent
interference with prospective economic advantage without prejudice.


On March 7, 2017, a related putative class action was filed in the
same court asserting similar claims. The cases were consolidated
and an amended consolidated complaint was filed (which did not name
trivago as a defendant). On May 17, 2018, the court denied
plaintiffs' motion for class certification.

Plaintiffs filed a renewed motion for class certification; the
court heard argument on the motion on December 6, 2018 and the
parties await a ruling.

Expedia Group, Inc., together with its subsidiaries, operates as an
online travel company in the United States and internationally. It
operates through Core OTA, Trivago, HomeAway, and Egencia segments.
Expedia Group, Inc. was founded in 1996 and is headquartered in
Bellevue, Washington.


EXPEDIA GROUP: Class Suit in Lod, Israel Still Pending
------------------------------------------------------
Expedia Group, Inc. said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on February 8, 2019, for
the fiscal year ended December 31, 2018, that the company continues
to defend a putative class action suit filed in the District Court
in Lod, Israel.

In or around January 2018, a putative class action lawsuit was
filed in the District Court in Lod, Israel against a number of
online travel companies including Expedia, Inc. and Hotels.com. The
plaintiff generally alleges that the defendants violated Israeli
consumer laws by limiting hotel price competition.

Expedia Group, Inc., together with its subsidiaries, operates as an
online travel company in the United States and internationally. It
operates through Core OTA, Trivago, HomeAway, and Egencia segments.
Expedia Group, Inc. was founded in 1996 and is headquartered in
Bellevue, Washington.


EXPEDIA GROUP: Hotels.com Drops Application for Leave to Appeal
---------------------------------------------------------------
Expedia Group, Inc. said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on February 8, 2019, for
the fiscal year ended December 31, 2018, that Hotels.com has
withdrawn its application for leave to appeal.

In or around September 2016, a putative class action lawsuit was
filed in the District Court in Tel Aviv, Israel against Hotels.com.
The plaintiff generally alleges that Hotels.com violated Israeli
consumer protection laws in various ways by failing to calculate
and display VAT charges in pricing displays shown to Israeli
consumers.

On March 15, 2017, Hotels.com filed an application with the
District Court challenging service, which the court registrar
rejected. Hotels.com appealed that decision but its appeal was
denied.

Hotels.com sought leave to appeal to the Supreme Court of Israel
but, on January 9, 2019, withdrew its application for leave to
appeal.

Expedia Group, Inc., together with its subsidiaries, operates as an
online travel company in the United States and internationally. It
operates through Core OTA, Trivago, HomeAway, and Egencia segments.
Expedia Group, Inc. was founded in 1996 and is headquartered in
Bellevue, Washington.


EXPEDIA GROUP: Oct. 16 Hearing on Class Certification Bid
---------------------------------------------------------
Expedia Group, Inc. said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on February 8, 2019, for
the fiscal year ended December 31, 2018, that a Texas court has
scheduled a class certification hearing in the putative class
action  against HomeAway.com for October 16, 2019.

On March 15, 2016, a putative class action suit was filed in
federal district court in Texas against HomeAway.com, Inc. related
to its implementation of a service fee. The putative class was
comprised of homeowners that list their properties on HomeAway's
websites for rent.

The complaint asserted claims against HomeAway for breach of
contract, breach of the duty of good faith and fair dealing, fraud,
fraudulent concealment, and violations of the state consumer
protection statutes.

Subsequently, three other putative class action lawsuits were filed
making similar claims. After a series of motions and appeals, three
of the four lawsuits were dismissed and compelled to individual
arbitration; one (Kirkpatrick) is proceeding as a putative class
action in the Texas federal district court. In the Kirkpatrick
case, on May 16, 2018, the district court dismissed plaintiff’s
breach of contract claim with prejudice.

The district court has scheduled a class certification hearing for
October 16, 2019.

Expedia Group, Inc., together with its subsidiaries, operates as an
online travel company in the United States and internationally. It
operates through Core OTA, Trivago, HomeAway, and Egencia segments.
Expedia Group, Inc. was founded in 1996 and is headquartered in
Bellevue, Washington.


EXPEDIA GROUP: Request for Reimbursable Costs Still Pending
-----------------------------------------------------------
Expedia Group, Inc. said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on February 8, 2019, for
the fiscal year ended December 31, 2018, that the defendants'
request for an award of reimbursable costs in the class action
lawsuit brought by the City of San Antonio, Texas, is still
pending.

On May 8, 2006, the city of San Antonio filed a putative statewide
class action in federal court against a number of online travel
companies, including Expedia, Hotels.com, Hotwire, and Orbitz. The
complaint alleged that the defendants failed to pay hotel
accommodations taxes as required by municipal ordinance.

On October 30, 2009, a jury verdict was entered finding that
defendant online travel companies "control hotels," and awarding
approximately $15 million for historical damages against the
Expedia Group companies. The jury also found that defendants were
not liable for conversion or punitive damages.

On April 4, 2013, the court entered a final judgment holding the
online travel companies liable for hotel occupancy taxes to
counties and cities in the statewide class action. On April 11,
2016, the court entered an amended judgment including approximately
$68 million in tax, interest and penalty amounts for the Expedia
Group companies, including Orbitz, and the defendants appealed.

On November 29, 2017, the Fifth Circuit issued an opinion reversing
the district court and rendering judgment for the defendant online
travel companies, finding that the amounts charged by the
defendants for their services are not subject to the hotel
accommodations taxes at issue.

The district court entered final judgment in favor of the defendant
online travel companies on March 28, 2018, and the defendants
submitted their request for an award of reimbursable costs, which
remains pending.

Expedia Group, Inc., together with its subsidiaries, operates as an
online travel company in the United States and internationally. It
operates through Core OTA, Trivago, HomeAway, and Egencia segments.
Expedia Group, Inc. was founded in 1996 and is headquartered in
Bellevue, Washington.


FACEBOOK INC: Privacy Disclosures "Quite Vague," Judge Says
-----------------------------------------------------------
Dark Reading reports that Facebook's privacy disclosures "are quite
vague" and should have been made more prominent, a federal judge
argued.

Facebook, in the midst of a class-action privacy lawsuit, was dealt
a blow when US District Judge Vince Chhabria argued its privacy
policies and practices cause users harm.

In a motion-to-dismiss hearing held Feb. 1, Facebook asked Judge
Chhabria to throw away a 267-page complaint from a multidistrict
case that had sought billions in damages for the social giant's
violations of state and federal laws. Facebook's attorney insisted
the company had not broken the law because its users willingly let
external parties collect data via their privacy controls.

However, Judge Chhabria said Facebook's disclosures informing users
of its data-sharing practices "are quite vague," as detailed in a
Courthouse News Service report. Derek Loeser, an attorney
representing a proposed class of Facebook users, argued that in
order for the policy to be binding, people have to be properly
informed before they consent to share their information.

"The injury is the disclosure of private information," said Judge
Chhabria in the Feb. 1 hearing.

Judge Chhabria gave plaintiffs a chance to file an amended
complaint within 21 days instead of first issuing a ruling in an
effort to accelerate the litigation. Plaintiffs have agreed, saying
they will add new data regarding a Facebook privacy settings
change. The new complaint is due Feb. 22. [GN]


FARMERS GROUP: Grigson Moves to Certify Auto Policyholders Class
----------------------------------------------------------------
The Plaintiffs in the lawsuit captioned CHARLES GRIGSON, LISA
HOING, and DAVID KELLY, Individually and on behalf of all putative
class members v. FARMERS GROUP, INC., a Nevada corporation, Case
No. 1:17-cv-00088-LY (W.D. Tex.), ask the Court to certify this
class:

    "All Farmers Texas auto policyholders who had an active FA2
     policy in effect on or after January 4, 2016."

Excluded from the Class are: (a) any Judge or Magistrate presiding
over this action, and members of their families; (b) FGI and
affiliated entities, including but not limited to FIE and Farmers
Texas, within the Farmers Insurance Group of Companies, their
employees, officers, directors, and licensed agents; (c) FGI's
legal representatives, assigns, and successors; and (d) all persons
who properly execute and file a timely request for exclusion from
the Class.

The Plaintiffs also ask the Court to appoint them as class
representatives, and their counsel as class counsel.

This case challenges a pervasive, internal, discriminatory scheme
implemented by Farmers Group, Inc. ("FGI") against its existing
auto insurance customers vis-a-vis new customers, categorically
depriving the former from accessing lower rates that would be
available to them but for FGI's conduct.  The single cause of
action here, and the core common legal and factual issues
implicated -- including whether FGI engaged in discrimination and
whether that misconduct was "knowing" -- are ideally suited to
class-wide adjudication.[CC]

The Plaintiffs are represented by:

          Michael L. Slack, Esq.
          John R. Davis, Esq.
          SLACK DAVIS SANGER, LLP
          2705 Bee Cave Road, Suite 220
          Austin, TX 78746
          Telephone: (512) 795-8686
          Facsimile: (512) 795-8787
          E-mail: mslack@slackdavis.com
                  jdavis@slackdavis.com

               - and -

          Joe K. Longley, Esq.
          LAW OFFICES OF JOE K. LONGLEY
          3305 Northland Drive, Suite 500
          Austin, TX 78731
          Telephone: (512) 477-4444
          Facsimile: (512) 477-4470
          E-mail: joe@joelongley.com

               - and -

          Roger N. Heller, Esq.
          Jonathan Selbin, Esq.
          Michelle A. Lamy, Esq.
          LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
          275 Battery Street, 29th Floor
          San Francisco, CA 94111
          Telephone: (415) 956-1000
          Facsimile: (415) 956-1008
          E-mail: rheller@lchb.com
                  jselbin@lchb.com
                  mlamy@lchb.com


FLOTEK INDUSTRIES: 5th Cir. Affirms Dismissal of Securities Suit
----------------------------------------------------------------
The United States Court of Appeals, Fifth Circuit, issued an
Opinion affirming the District Court’s judgment granting
Defendant's Motion to Dismiss in the case captioned ALASKA
ELECTRICAL PENSION FUND, Lead Plaintiff, Plaintiff-Appellant, v.
FLOTEK INDUSTRIES, INCORPORATED; JOHN W. CHISHOLM; H. RICHARD
WALTON; ROBERT M. SCHMITZ, Defendants-Appellees. No. 17-20308.
((5th Cir.).

The Plaintiff filed a putative class action filed on behalf of
purchasers of Flotek Industries, Inc. common stock. Plaintiffs
allege that defendants, Flotek and three of its officers,
exaggerated the usefulness of its products. They allege
misrepresentations relating to a proprietary software Flotek
developed to help market these products. Plaintiffs alleges
violations of Section 10(b) of the Securities Exchange Act;
Securities and Exchange Commission and control person liability for
the individual defendants under Section 20(a) of the Securities
Exchange Act.

The district court dismissed the complaint, holding that plaintiffs
had failed to plead facts giving rise to a strong inference of
fraudulent scienter.

Where fraud is alleged, Federal Rule of Civil Procedure 9(b)
creates a heightened pleading requirement that `the circumstances
constituting fraud or mistake shall be stated with particularity. A
class-action complaint alleging a violation of Section 10(b) must
allege fraud in accordance with the Rule 9(b) heightened-pleading
standard. To state a viable securities-fraud claim under Section
10(b) and Rule 10b-5, Plaintiffs must allege that (1) Defendants
made a misrepresentation or omission relating to the purchase or
sale of a security (2) such representation or omission related to a
material fact (3) the representation or omission was made with
scienter (4) Plaintiffs acted in reliance on Defendants'
representation or omission and (5) the representation or omission
proximately caused Plaintiffs' losses.   

At issue in this appeal is whether Plaintiffs have sufficiently
pleaded scienter.

The Private Securities Litigation Reform Act (PSLRA) specifically
requires that a complaint in a securities case support allegations
of scienter with facts giving rise to a strong inference that the
defendant acted with the required state of mind.

To evaluate scienter in a securities-fraud case, a court must (1)
take the well-pleaded allegations as true (2) evaluate the facts
collectively, including facts contained in documents incorporated
in the complaint by reference and matters subject to judicial
notice, to determine whether a strong inference of scienter has
been pled and (3) take into account plausible inferences opposing
as well as supporting a strong inference of scienter. To withstand
a motion to dismiss, an inference of scienter must be more than
merely plausible or reasonable it must be cogent and at least as
compelling as any opposing inference of nonfraudulent intent.

Scienter must be alleged with respect to the individual corporate
official or officials who make or issue the statement (or order or
approve it or its making or issuance, or who furnish information or
language for inclusion therein, or the like rather than generally
to the collective knowledge of all the corporation's officers and
employees acquired in the course of their employment.  

The alleged misrepresentations are: (1) Defendants' repeated use of
the term conclusive in describing FracMax's effect, which
Plaintiffs characterize as tantamount to assuring that FracMax's
data was irrefutable (2) Defendants' reference to FracMax data as
un-adjusted when, in fact, FracMax used an algorithm to adjust
certain data (3) Defendant Chisholm's presentation at the September
11, 2015, conference of direct comparisons between several wells
that used CnF versus several that did not, which Defendants concede
relied on incorrect data for the non-CnF wells and (4) Chisholm's
representation at this same conference that this data was back
checke and validated, when Defendants later admitted that Flotek
had no internal controls in place to ensure the integrity of the
FracMax database.

The district court determined that these representations failed to
generate a strong inference of scienter.  

Description of FracMax as Conclusive

The Plaintiffs suggest that the Defendants' use of the term
conclusive to describe FracMax was obviously misleading because
Flotek employed no internal controls over the information used for
FracMax provided by third-party Drilling info, yet the term
conclusive suggests the data is infallible.

However, in context, Chisholm's use of the term conclusive may have
had innocent intentions and may not have been inconsistent with a
lack of internal controls. For example, Chisholm stated in a press
release that the FracMax software technology provides conclusive
evidence that our CnF suite of completion chemistries provides
compelling economic benefits to production companies.

Plaintiffs do not allege that CnF products provide no economic
benefit whatsoever, but instead allege the benefit was overstated.
Therefore, Chisholm's generalized endorsement of FracMax as
evidencing the compelling economic benefits of CnF products is not
unreasonable, given that CnF products undisputedly provided some
economic benefit. At the very least, such statements are not highly
unreasonable omissions or misrepresentations involving an extreme
departure from the standards of ordinary care.

Plaintiffs argue that Flotek's lack of internal controls should
have made it obvious to Defendants that using the term conclusive
was misleading. That argument also fails. Plaintiffs do not allege
that Defendants should have known the Drillinginfo data was
unreliable. While it was perhaps unwise to rely completely on
third-party data while referring to the product using it as
conclusive, it was not reckless to do so. At bottom, Plaintiffs'
allegations concerning Defendants' characterization of FracMax data
as conclusive fail to generate an inference of scienter that is at
least as compelling as opposing inferences of nonfraudulent
intent.

Characterization of FracMax-Provided Information as Un-Adjusted

Plaintiffs also contend that a slide show Chisholm presented at
least once, which stated that FracMax data is un-adjusted, was
misleading and Chisholm should have known it was incorrect, because
FracMax used an allocation algorithm that necessarily made
adjustments to Texas production data. In response to the fallout
from the Bronte Report, Flotek disclosed that it used an allocation
algorithm for Texas data, because data provided by the Texas
Railroad Commission was not broken down by well, but instead by
lease, and a lease might contain multiple wells.

Therefore, according to Plaintiffs, any statement positing that the
data was not adjusted was patently false, supporting an inference
of scienter. However, there is no specific allegation that Chisholm
knew at the time he made the statement at issue that FracMax
utilized an algorithm.

Moreover, as the district court correctly pointed out, the use of
an algorithm does not make the claim that the data was un-adjusted"
misleading.
  
Presentation of Incorrect Well Data

The starkest example of Flotek's provision of false information is
that Chisholm presented demonstrably false information at the
September 2015 conference in the form of incorrect well data.
However, even these statements fail to support a strong inference
of scienter, because Plaintiffs fail to plead that any Defendant
knew of these errors at the time, and the misstatements were not
sufficiently obvious that Defendants were severely reckless in
presenting the information. As the district court pointed out,
although Plaintiffs pleaded that the three non-CnF wells used in
the September 2015 presentation were downwardly adjusted, they
failed to plead facts establishing this discrepancy is true
throughout FracMax's 80,000 well database and a trend as to six
wells out of 80,000 is not sufficient on its own to establish a
strong inference of scienter. Plaintiffs contend that the fact that
the discrepancies inured to Flotek's benefit weighs in favor of a
finding of scienter, as it suggests that Chisholm made intentional
misrepresentations rather than mistakes. But the mere fact that an
error favors the defendant is insufficient to support a strong
inference of scienter.  

It does appear that it would have been very easy to check if this
data was correct, Flotek verified the alleged errors and responded
to the Bronte Report within a day. However, while this suggests
negligence, there is no indication that Defendants had reason to
know of any deficiencies in quality control problems before the
data was made public.  Plaintiffs rely on the fact that Flotek
revised its allocation algorithm, which they claim implies that
there was an issue with the previous algorithm. However, we have
previously declined to draw a similar inference, concluding in
Abrams that the fact that Baker Hughes was overhauling its
accounting system does not command an inference that company
officials should have anticipated finding a problem or assumed that
financial data reported under the old system was inaccurate.

Thus, Chisholm's use of incorrect data at the September 2015
conference also fails to give rise to a strong inference of
scienter.

Statement that Data Was Back-Checked and Validated

Finally, Plaintiffs claim that Chisholm represented that the data
presented at the September 2015 conference was back checked and
validated. Plaintiffs allege that this was false, as Flotek had no
internal controls in place to ensure the integrity of the FracMax
database. Indeed, as Chisholm admitted, there was a failure in
quality control, because Flotek did not cross-reference the
Drilling info data with the Texas Railroad Commission data. Despite
Chisholm's subsequent recognition that Flotek should have had the
quality control in place that could have validated [the
Drillinginfo data] and it wasn't, Plaintiffs nonetheless fail to
allege that Chisholm knew of this lack of quality control at the
time he made the statement, or that it would have been so obvious
that he should have known.  Further, the statement is ambiguous
because Chisholm does not say whether Flotek itself back checks and
validates the data, or instead relies on a third party to do so,
which Chisholm may well have believed was a part of the process.  


Accordingly, this allegation also fails to give rise to a strong
inference of scienter.
The district court correctly pointed out that Plaintiffs ask this
Court to assume scienter based solely on the importance of FracMax
to Flotek's business, Defendants' positions within the company, and
the fact that the alleged `mistake' happened in a way that made
Flotek's core product, CnF, look more profitable. The Court agrees
that such allegations are insufficient to raise a strong inference
of scienter and, at most, indicate simple or even inexcusable
negligence, a lesser showing than is required here. This conclusion
is further buttressed by Plaintiffs' pervasive use of group
pleading referring generally to Defendants rather than specific
individuals, a practice this court has expressly rejected. For
these reasons, the district court's holistic analysis was also
correct.

Plaintiffs contend that the district court erred by dismissing
their Section 20(a) claims against the individual defendants for
control-person liability. Control person liability is secondary
only and cannot exist in the absence of a primary violation.
Because Plaintiffs have not established a primary violation, their
Section 20(a) claims fail.

The judgment of the district court is affirmed.

A full-text copy of the Fifth Circuit's February 7, 2019 Opinion is
available at https://tinyurl.com/y3xmpo4j from Leagle.com.

Gerard Pecht -- gerard.pecht@nortonrosefulbright.com -- for
Defendant-Appellee.

Peter Andrew Stokes -- peter.stokes@nortonrosefulbright.com -- for
Defendant-Appellee.

Steven Francis Hubachek -- shubachek@rgrdlaw.com -- for
Plaintiff-Appellant.

Laurie L. Largent -- llargent@csgrr.com -- for
Plaintiff-Appellant.


FORSTER & GARBUS: Bencomo Seeks to Certify Class Under FDCPA
------------------------------------------------------------
The Plaintiff in the lawsuit entitled MODESTA BENCOMO, Individually
and on Behalf of All Others Similarly Situated v. FORSTER & GARBUS
LLP, TD BANK USA, N.A., and TARGET CORPORATION, Case No.
2:18-cv-01259-JPS (E.D. Wisc.), asks the Court to certify this
class, in accordance with the class definition asserted in her
Amended Complaint:

     (a) all natural persons in the State of Wisconsin (b) who
     were sent a collection letter in the form represented by
     Exhibit A to the complaint in this action, (c) seeking to
     collect a "Target" credit card debt incurred for personal,
     family, or household purposes, (d) owed to TD Bank USA,
     N.A., (e) between August 14, 2017 and August 14, 2018,
     inclusive, (f) that was not returned by the postal service.

Ms. Bencomo asks the Court to enter an order determining that this
Fair Debt Collection Practices Act and the Wisconsin Consumer Act
action may proceed as a class action against the Defendants.  This
case concerns the legality of standard form collection letters used
by Forster to collect consumer debts owed to TD Bank.  On August
14, 2018, she filed her Complaint.

The Plaintiff also asks the Court to appoint her as class
representative, and to appoint 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


FRESH INVESTMENTS: Spangler Sues Over Unpaid Minimum Wage
---------------------------------------------------------
Nick Spangler, Bruno Trigo, Hayden Williams and Daniel Salinas,
individually and on behalf of all others similarly situated,
Plaintiffs, v. Fresh Investments, LLC and Fresh Investments VCU
1740, LLC, d/b/a Jimmy John's Gourmet Sandwiches, Defendants, Case
No. 3:19-cv-00136-JAG (E.D. Va., February 27, 2019) is an action
for violations of the minimum wage provisions of the Fair Labor
Standards Act ("FLSA").

The Defendants violated the minimum wage provisions of the FLSA
because they paid Plaintiffs a straight hourly rate less than the
required minimum wage for all hours worked regardless of whether
they were working as tipped employees or non-tipped employees and
attempted to apply the "tip credit" to all hours worked rather than
merely those hours for which the Plaintiffs worked in a tipped
position, says the complaint.

Plaintiffs are current and/or former employees of the Defendants
and worked for the Defendants at their Jimmy John's Gourmet
Sandwiches shop located in Richmond, Virginia.

Fresh Investments, LLC is a for profit corporation organized and
existing under the laws of Virginia.[BN]

The Plaintiffs are represented by:

     William C. Tucker, Esq.
     Tucker Law Firm, PLC
     690 Berkmar Circle
     Charlottesville, VA 22901
     Phone and Fax: (833) 388-2537
     Email: bill.tucker@tuckerlawplc.com


GRAIN PROCESSING: Judge Set to Rule on Class Action Settlement
--------------------------------------------------------------
Kate Payne, writing for Iowa Public Radio, reports that a judge was
set to consider on Feb. 5 whether to approve a $50 million
settlement in a class action case over air pollution in Muscatine.

Under the agreement the Grain Processing Corporation would have to
pay $45 million to area residents and their lawyers, and spend $5
million on pollution control projects.

Neighbors of the company's corn milling plant in Muscatine alleged
in the years-long case that haze, odors and particles from the GPC
plant harmed their quality of life and interfered with their full
use of their own property.

"This was a frequent description, by class members, who'd go
outside on certain days and be unable to garden, be unable to just
be outside on their deck, that kind of thing," said
Jim Larew, one of the lawyers representing the class members in the
case. "When this was filed they were using coal-fired burners and
people were describing particulate, all of which could interfere
with a person's full use and enjoyment of the property, but also
impose certain burdens, the plaintiffs allege."

Residents who lived within one and half miles of the Muscatine
plant between April 24, 2007 and September 1, 2017 are eligible to
benefit from the proposed settlement. Mr. Larew estimates the total
group of potential beneficiaries could be upwards of 15,000 people.
But first a judge has to decide if the agreement is fair.

"It's not going to be a forum if someone, either in praise or blame
of GPC for example . . . it's really not a place to hash out those
issues," Mr. Larew said. "It's whether or not these…the terms and
conditions of the proposed settlement are fair, adequate and
reasonable."

Under the terms of the agreement, GPC would not admit any fault or
wrongdoing in the case.

Neither this Settlement Agreement, whether approved or not
approved, nor any exhibit, document, or instrument that is
developed as part of this Settlement Agreement or in order to
implement this Settlement Agreement, nor any statement,
transaction, or proceeding in connection with its negotiation,
execution, or implementation, is intended to nor may it be
construed as or deemed to be evidence of an admission or concession
by the Parties of any liability, defense, affirmative defense,
fault, or wrongdoing, or of the truth of any allegations or
defenses in the Litigation, or the valuation or validity of claims
or defenses or affirmative defenses to any claims in any context or
proceeding other than this Settlement.

If the settlement is approved, individuals could see payouts of as
much as $16,000, though the amounts would depend on how long a
resident lived in the area, how close they were to the plant,
whether they rented or owned their home, and how many total
applicants qualify for the payments. Residents have until
March 19, 2019 to submit a claim.

If the judge rejects the settlement, the parties would have the
opportunity to negotiate the terms. Otherwise, the case could go to
trial. [GN]


HAIN CELESTIAL: Consolidated Securities Suit Underway
-----------------------------------------------------
The Hain Celestial Group, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on February 7, 2019,
for the quarterly period ended December 31, 2018, that the company
continues to defend itself from a consolidated securities class
action suit pending before the Eastern District of New York
entitled, In re The Hain Celestial Group, Inc. Securities
Litigation.

On August 17, 2016, three securities class action complaints were
filed in the Eastern District of New York against the Company
alleging violations of Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934. The three complaints are:

(1) Flora v. The Hain Celestial Group, Inc., et al. (the "Flora
Complaint");

(2) Lynn v. The Hain Celestial Group, Inc., et al. (the "Lynn
Complaint"); and

(3) Spadola v. The Hain Celestial Group, Inc., et al. (the "Spadola
Complaint" and, together with the Flora and Lynn Complaints, the
"Securities Complaints").  

On June 5, 2017, the court issued an order for consolidation,
appointment of Co-Lead Plaintiffs and approval of selection of
co-lead counsel. Pursuant to this order, the Securities Complaints
were consolidated under the caption In re The Hain Celestial Group,
Inc. Securities Litigation (the "Consolidated Securities Action"),
and Rosewood Funeral Home and Salamon Gimpel were appointed as
Co-Lead Plaintiffs.  

On June 21, 2017, the Company received notice that plaintiff
Spadola voluntarily dismissed his claims without prejudice to his
ability to participate in the Consolidated Securities Action as an
absent class member.  The Co-Lead Plaintiffs in the Consolidated
Securities Action filed a Consolidated Amended Complaint on August
4, 2017 and a Corrected Consolidated Amended Complaint on September
7, 2017 on behalf of a purported class consisting of all persons
who purchased or otherwise acquired Hain Celestial securities
between November 5, 2013 and February 10, 2017 (the "Amended
Complaint").  

The Amended Complaint names as defendants the Company and certain
of its current and former officers (collectively, the "Defendants")
and asserts violations of Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934 based on allegedly materially false
or misleading statements and omissions in public statements, press
releases and SEC filings regarding the Company's business,
prospects, financial results and internal controls.

Defendants filed a motion to dismiss on October 3, 2017. Co-Lead
Plaintiffs filed an opposition on December 1, 2017, and Defendants
filed the reply on January 16, 2018. On April 4, 2018, the Court
requested additional briefing relating to certain aspects of
Defendants' motion to dismiss.

In accordance with this request, Lead Plaintiffs submitted their
supplemental brief on April 18, 2018, and Defendants submitted an
opposition on May 2, 2018. Lead Plaintiffs filed a reply brief on
May 9, 2018, and Defendants submitted a sur-reply on May 16, 2018.

No further updates were provided in the Company's SEC report.

The Hain Celestial Group, Inc. manufactures, markets, distributes,
and sells organic and natural products. The company operates in
seven segments: the United States, United Kingdom, Tilda, Ella's
Kitchen UK, Canada, Europe, and Cultivate. The Hain Celestial
Group, Inc. was founded in 1993 and is headquartered in Lake
Success, New York.


HAIN CELESTIAL: Stockholder Litigation Remains Stayed
-----------------------------------------------------
The Hain Celestial Group, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on February 7, 2019,
for the quarterly period ended December 31, 2018, that the case
entitled, In re The Hain Celestial Group, Inc. Stockholder Class
and Derivative Litigation, continues to be stayed.

On April 19, 2017 and April 26, 2017, two class action and
stockholder derivative complaints were filed in the Eastern
District of New York against the Board of Directors and certain
officers of the Company under the captions Silva v. Simon, et al.
(the "Silva Complaint") and Barnes v. Simon, et al. (the "Barnes
Complaint"), respectively.  

Both the Silva Complaint and the Barnes Complaint allege violation
of securities law, breach of fiduciary duty, waste of corporate
assets and unjust enrichment.

On May 23, 2017, an additional stockholder filed a complaint under
seal in the Eastern District of New York against the Board of
Directors and certain officers of the Company. The complaint
alleges that the Company's directors and certain officers made
materially false and misleading statements in press releases and
SEC filings regarding the Company's business, prospects and
financial results.  

The complaint also alleges that the Company violated its by-laws
and Delaware law by failing to hold its 2016 Annual Stockholders
Meeting and includes claims for breach of fiduciary duty, unjust
enrichment and corporate waste.  

On August 9, 2017, the Court granted an order to unseal this case
and reveal Gary Merenstein as the plaintiff (the "Merenstein
Complaint").

On August 10, 2017, the court granted the parties stipulation to
consolidate the Barnes Complaint, the Silva Complaint and the
Merenstein Complaint under the caption In re The Hain Celestial
Group, Inc. Stockholder Class and Derivative Litigation (the
"Consolidated Stockholder Class and Derivative Action") and to
appoint Robbins Arroyo LLP and Scott+Scott as Co-Lead Counsel, with
the Law Offices of Thomas G. Amon as Liaison Counsel for
Plaintiffs.   

On September 14, 2017, a related complaint was filed under the
caption Oliver v. Berke, et al. (the "Oliver Complaint"), and on
October 6, 2017, the Oliver Complaint was consolidated with the
Consolidated Stockholder Class and Derivative Action.

The Plaintiffs filed their consolidated amended complaint under
seal on October 26, 2017. On December 20, 2017, the parties agreed
to stay Defendants' time to answer, move, or otherwise respond to
the consolidated amended complaint through and including 30 days
after a decision is rendered on the motion to dismiss the Amended
Complaint in the consolidated Securities Class Actions.

No further updates were provided in the Company's SEC report.

The Hain Celestial Group, Inc. manufactures, markets, distributes,
and sells organic and natural products. The company operates in
seven segments: the United States, United Kingdom, Tilda, Ella's
Kitchen UK, Canada, Europe, and Cultivate. The Hain Celestial
Group, Inc. was founded in 1993 and is headquartered in Lake
Success, New York.


HALIFAX, NS: Ex-Africville Residents Continue to Pursue Lawsuit
---------------------------------------------------------------
Allison King, writing for The Signal, reports that former
Africville residents and descendants are continuing to push for a
class-action lawsuit that was initially rejected in 2016.

Lawyers for the plaintiffs and the former City of Halifax were in
Nova Scotia Supreme Court on Jan. 24 to revisit the proposed
lawsuit led by Nelson Carvery, a former Africville resident.
Carvery's lawyer, Robert Pineo, Esq. -- rpineo@pattersonlaw.ca --
is amending the original statement of claim to include more
plaintiffs.

"I feel great about it," Carvery said in an interview on Jan. 24.
"It's important to the whole community of Africville that some
closure comes to this."

Carvery was not in court and his lawyer appeared via phone call.

The plaintiffs are seeking compensation for the expropriation of
Africville in the 1960s.

Africville was an African-Canadian village located next to the
Bedford Basin. For generations, people fished and farmed on the
land. It was demolished by the City of Halifax to be turned into
industrial land. Houses were destroyed, in some cases without
knowledge or permission of residents.

An action and statement of claim was filed by 129 plaintiffs for
the first time in 1996 by the African Genealogy Society against the
City of Halifax.

In 2010, the Halifax Regional Municipality issued an apology and
gave $3 million to rebuild the Seaview African United Baptist
Church, which was rebuilt as the Africville Museum in 2012. There
was no personal compensation given to former residents or
descendants.

Carvery said they are not satisfied with the church museum.

"It doesn't seem to belong to us. It looks like our church, but
it's not our church," said Carvery.

In November 2016, Supreme Court Justice Patrick Duncan denied the
plaintiff's original application for a class-action suit, saying it
failed to satisfy the Class Proceedings Act. Specifically, the
application didn't raise common issues between at least two
people.

Duncan said lawyers could try to bring the suit forward again.

Pineo couldn't be reached for comment, while Karen MacDonald, Esq.
-- macdonka@halifax.ca -- lawyer for the former City of Halifax,
declined to comment on the municipality's position.

Pineo is scheduled to make amendments to the statement of claim by
March 15. The matter is due in court on April 11 for a motion
hearing.[GN]


HERTZ CORPORATION: Court Denies Class Certification in Spotswood
----------------------------------------------------------------
The United States District Court for the District of Maryland
issued a Memorandum Opinion denying Plaintiff's Motion for Class
Certification in the case captioned ROBERT SPOTSWOOD, Plaintiff, v.
HERTZ CORPORATION, Defendant. Civil Action No. RDB-16-1200. (D.
Md.).

Plaintiff Robert Spotswood brings this class action lawsuit against
Defendant Hertz Corporation, alleging that Hertz improperly fined
customers who damaged their Hertz rental vehicles.

The Plaintiff seeks certification of one of two alternative
classes: a Seven Jurisdiction Class and a Maryland Class.
Spotswood defines the Seven Jurisdiction Class as follows:

     All persons and entities who rented a Hertz vehicle in the
District of Columbia, Maryland, Massachusetts, New York, Rhode
Island, South Carolina, or Virginia under the Hertz Gold Member
form contract and who were charged during the class period a
diminishment of value fee, a loss of use fee, and/or an
administrative fee.

Spotswood's proposed classes do not meet these requirements. First,
Spotswood has failed to demonstrate a feasible way of ascertaining
the members of the putative class by using Hertz's customer data.
Second, individualized questions concerning the reasonableness of
fees assessed against each class member overwhelm any other issues.
Third, many of the proposed class members have signed Rental
Records which contain arbitration and class action waiver
provisions, preventing them from pursuing this action entirely.
Finally, Spotswood cannot adequately represent the interests of the
class because of the unique posture of his legal claims and his
long-standing relationship with the putative class counsel.

For these reasons, this Court finds that Plaintiff has failed to
meet the requirements of ascertainability, numerosity, commonality,
typicality, and adequacy of representation.  

Ascertainability

Both the Seven Jurisdiction Class and the Maryland Class consist of
all persons and entities who rented a Hertz vehicle under the Hertz
Gold Member form contract and who were charged during the class
period a diminishment of value fee, a loss of use fee, and/or an
administrative fee.

To meet this requirement, the plaintiff cannot merely identify a
mass of data which could aid the process of identifying class
members. As opinions of the United States Court of Appeals for the
Fourth Circuit and this Court have indicated, the Plaintiff must
also provide an efficient method of using this information. In EQT,
the United States Court of Appeals for the Fourth Circuit
highlighted the serious ascertainability issues posed by using a
cache of land records to identify class members. EQT, 764 F.3d at
359. The Fourth Circuit faulted this method for requiring a
complicated and individualized process to resolve numerous
title-defect issues to determine which purported land owners
belonged in the class and which did not.   

Gill's declaration elaborates on the difficulty of using Lambda to
locate individuals charged the disputed fees. In it, he explains
that Hertz's computer systems cannot generate a report that
identifies Fee charges to rental car customers only, as opposed to
the many other types of non-customer persons and entities that
Hertz in many instances charges. As Hertz uses a third-party for
some of its billing practices, Lambda does not always record the
recipient of a fee charge.

Even when this information is available, it cannot be obtained in
an efficient manner.  To discover the identify of charged parties,
Hertz employees would need to access a separate program, called
FileNet, search the system by claim number, and then review the
associated files for a damage packet sent to Hertz customers. The
employee would also need to review the packet for an assessed fee,
because not all demand packets include one. Alternatively, having
already obtained a code corresponding to the intended recipient of
a demand packet, a Lambda user could search the system for a billed
fee amount that corresponds to the date associated with that code.


These processes cannot be automated; Hertz personnel would need to
investigate hundreds of thousands of claim records and isolate
those that fit into the proposed classes, which excludes five
categories of Hertz customers. This mindnumbing process would be
time consuming, potentially taking a team of dedicated workers many
months to complete, and error prone.

By glossing over these complications, Spotswood has failed to
demonstrate how his proposed classes could be ascertained. As that
case explains, a plaintiff may not simply point to a defendant's
computer records and demanded that it conjure up a class. In this
case, Spotswood has done little else. This Court has considered the
difficulties accompanying a search of Hertz's records for the
desired information and finds that there is no administratively
feasible method of locating the gerrymandered sub-set of Hertz
customers targeted by Spotswood's proposed class actions.

Numerosity

Rule 23(a)(1) provides that one of the requirements to bring a
class action is that the class be so numerous that joinder of all
members is impracticable.

To satisfy this requirement, Spotswood refers this Court to a Hertz
spreadsheet which records the dates of Hertz vehicle accidents, the
state in which the rental commenced, and a corresponding
transaction amount. At his deposition, Gill clarified that this
spreadsheet was produced using a computer application called Web
Focus, which pulls data from Lambda and other systems. Gill
testified that the spreadsheet reported every recovery on
administrative, loss of use, and diminished value fees from April
2012 until November 30, 2017. Based on this spreadsheet, Spotswood
maintains that in Maryland alone, Hertz's internal records show
over 1700 Fees were charged and paid and over 600 Loss of Use Fees
alone were charged and paid by class members during the class
period.

While this spreadsheet provides evidence that Hertz frequently
assesses fees, it does not reveal whether these fees were assessed
against any putative class members. To determine whether any of the
transactions recorded by this document correspond to a putative
class member, one would need to match the case number provided on
the spreadsheet with the individual or entity Hertz charged a fee.
As Gill's deposition testimony and declaration reveal, however,
there is simply no administratively feasible method of matching the
fees on this spreadsheet to the person or entity charged. Spotswood
has merely referenced this list of transactions and invited this
Court to conjecture that a sufficient ratio of these fee recoveries
corresponds to a class member. This demonstration does not suffice.
As the spreadsheet fails to identify even a single class member,
Spotswood has failed his burden to show that the putative classes
are sufficiently numerous to warrant a class action.

Commonality

Rule 23(a)(2) requires a question of law or fact common to the
class. A common question is one that can be resolved for each class
member in a single hearing and does not turn on a consideration of
the individual circumstances of each class member.

Spotswood asserts that it has satisfied this requirement because
Hertz's liability turns solely on its common course of conduct as
applied to a uniform contract under shared law. He proposes a list
of common questions which predominate over others, foremost of
which are (1) whether Hertz was authorized to charge the Fees under
the form contract and (2) if so, whether the Fees are reasonably
related to costs that Hertz incurred. To support these claims,
Spotswood likens this case to several decisions of other courts
which found the alleged breach of uniform contracts suitable for
class action adjudication.

Spotswood has overlooked a host of thorny issues which subsume the
common questions he has identified. This Court has permitted
Spotswood to proceed on a narrow theory of recovery which requires
a case-by-case analysis of each fee to determine whether they meet
this reasonableness requirement. Moreover, individualized questions
relating to arbitrability pose a threshold obstacle to many of the
class members' claims. Accordingly, Spotswood has failed to meet
the commonality requirement and certainly has not satisfied the
more rigorous 23(b)(3) requirement of predominance.

Typicality

Rule 23(a)(3) requires that claims or defenses of the
representative parties are typical of the claims or defenses of the
class.  

Hertz presents an additional reason why Spotswood cannot satisfy
this requirement: he did not suffer any economic injury related to
the alleged breach of contract, but the putative classes
potentially embraces those who did. As the putative classes
theoretically embrace certain people and entities which were
charged a fee, it also embraces those who paid he fee. Spotswood
admitted that he did not pay the fee. Moreover, he has presented no
evidence of other types of damages, and even admitted that he did
not even know if his credit score was affected by his decision not
to pay Hertz's fees. Accordingly, he did not suffer the same injury
as the putative class members. As Plaintiff's claims potentially
differ substantially from other members of the putative class, he
has failed to meet the typicality requirement of Rule 23(a).

Adequacy of Representation

The final prerequisite under Rule 23(a) is that the persons
representing the proposed class must be able fairly and adequately
to protect the interests of all members of the class.

Hertz identifies an additional, fundamental problem with
Spotswood's representation. Spotswood, a lawyer, admits that he has
served as co-counsel with the law firm representing him in this
case, Heninger Garrison Davis, LLC.At his deposition, he revealed
that his law firm has a very good relationship with the Heninger
firm and that he has spent a lot of time with Heninger attorneys.

Spotswood at least occasionally socializes with Steve Heninger, a
partner at the firm, who Spotswood certainly likes and considers to
be a friend. Mr. Heninger, who lives just a few doors down from
Spotswood, attended a birthday party for Spotswood's wife.
Spotswood attempts to minimize these connections. He claims that
Heninger and Spotswood do not socialize often and that any conflict
of interest posed by their interactions is merely speculative.  

The interactions between Spotswood and his counsel's law firm
creates a present conflict of interest which jeopardizes his
ability to adequately represent the interests of other class
members. The unique client-attorney relationship in this case
raises additional concerns in light of the Heninger firm's
potential fees, which would far exceed Spotswood's potential
recovery, as it is limited by his admitted failure to pay the
disputed fees. Given the close ties between Spotswood and the
Heninger law firm, Spotswood might be motivated to maximize
Heninger's attorney's fees. This places him at odds with the
putative class, as his ties with the Heninger firm poses a serious
risk that he will authorize decisions including settlement which
place his attorney's interests over his fellow class members'. This
risk is not acceptable. For this reason, Spotswood is not an
adequate representative.

Rule 23(b)(3)

Having determined that Spotswood has failed to satisfy Rule 23(a)'s
requirements, this Court also concludes that the Requirements of
Rule 23(b)(3) have not been satisfied. Rule 23(b)(3) requires a
finding that common questions predominate over any questions
affecting only individual members, and that a class action is
superior to other available methods for fairly and efficiently
adjudicating the controversy. The Fourth Circuit has held that the
predominance requirement of Rule 23(b)(3) is more stringent" than
the commonality requirement of Rule 23(a). Accordingly, the failure
to satisfy the commonality requirement pursuant to Rule 23(a)
requires a finding that common issues do not predominate under Rule
23(b)(3).
  
As explained above, the proposed classes are marred by
individualized inquiries concerning the costs Hurtz sustained in
connection with each accident and variations in the Rental Records.
Facing these obstacles, the proposed classes would collapse into a
series of mini-trials as this Court engaged in the
class-member-by-class-member and contract-bycontract inquiry they
require. Accordingly, this Court finds neither that the common
questions of law or fact predominate over questions affecting
individual members nor that a class action is superior to other
available methods for the fair and efficient adjudication of the
controversy.

Accordingly, the Court denied Spotswood's Motion for Class
Certification.

A full-text copy of the District Court's February 7, 2019
Memorandum and Order is available at https://tinyurl.com/y566nlzz
from Leagle.com.

Robert Spotswood, Plaintiff, represented by Maureen V. Abbey
Scorese -- Maureen@hgdlawfirm.com -- Heninger Garrison Davis LLC,
pro hac vice, Scott B. Goldstein, Saiontz & Kirk PA & Taylor
Bartlett -- taylor@hgdlawfirm.com -- Heninger Garrison Davis LLC,
pro hac vice.

Hertz Corporation, Defendant, represented by David W. DeBruin --
ddebruin@jenner.com -- Jenner and Block, John F. Ward, Jr. --
jward@jenner.com -- Jenner and Block LLP, pro hac vice, Lauren J.
Hartz -- lhartz@jenner.com -- Jenner and Block LLP, pro hac vice &
Michelle R. Singer -- msinger@jenner.com -- Jenner and Block LLP,
pro hac vice.


HOME DEPOT: Smith Suit Removed to S.D. California
-------------------------------------------------
The case captioned Craig Smith, an individual on behalf of himself,
and on behalf of all persons similarly situated, Plaintiff, v. Home
Depot U.S.A., Inc., a Corporation and DOES 1 through 50, inclus1ve,
Defendants, Case No. 37-2019-00001930-CU-OE-CTL was removed from
Superior Court of California, County of San Diego to the United
States District Court for the Southern District of California on
February 27, 2019, and assigned Case No. 3:19-cv-00402-BEN-MSB.

Plaintiff Smith asserts claims under the California Labor Code for
failure to pay overtime wages, failure to provide meal breaks,
failure to provide rest breaks, and failure to timely pay final
wages.

Plaintiff Smith purports to bring these claims on behalf of a
putative class that includes all persons employed by Home Depot as
Assistant Store Managers and classified as exempt from overtime
wages in California within the four years prior to the filing of
the Complaint, says the complaint.

Plaintiff Craig Smith is a former Assistant Store Manager for Home
Depot.

Home Depot is not incorporated in California, but is rather
organized and incorporated under the laws of Delaware.[BN]

The Defendant is represented by:

     Donna M. Mezias, Esq.
     Dorothy F. Kaslow, Esq.
     HAUER & FELD LLP
     580 California Street, Suite 1500
     San Francisco, CA 94104
     Phone: 415-765-9500
     Facsimile: 415-765-9501
     Email: dmezias@akingump.com
            dkaslow@akingump.com


K12 INC: Bid to Certify Class in Tarapara Suit Nixed
----------------------------------------------------
The Hon. Phyllis J. Hamilton terminates the motions to certify
class and to file under seal in the lawsuit styled BABULAL
TARAPARA, et al. v. K12 INC., et al., Case No. 4:16-cv-04069-PJH
(N.D. Cal.).

On March 1, 2018, Plaintiffs Mark Beadle and Babulal Tarapara filed
a motion to certify a class.  On August 8, 2018, Tarapara filed a
motion to file certain materials accompanying the reply brief under
seal.  On September 10, 2018, the Court issued as an order the
parties' joint stipulation vacating the scheduled hearing on the
Plaintiff's motions and setting a deadline for the Plaintiff to
move for preliminary approval of class settlement.

On February 14, 2019, the Court preliminarily approved class
settlement.

Accordingly, the Plaintiff's motions for class certification and to
file certain materials under seal are terminated, given the
preliminary approval of class settlement.  If final approval of
settlement is not granted, the Plaintiff may re-notice the
terminated motions for hearing without re-filing any materials, the
Court ruled.[CC]


KEMPER CASUALTY: Court Denies Judgment on Pleadings in Bhasker
--------------------------------------------------------------
The United States District Court for the District of New Mexico
issued a Memorandum Opinion and Order denying Defendants' Motion
for Judgment on the Pleadings in the case captioned HELEN BHASKER,
Plaintiff, v. KEMPER CASUALTY INSURANCE COMPANY; UNITRIN SPECIALTY
FINANCIAL INDEMNITY COMPANY; FINANCIAL INDEMNITY COMPANY; ELITE
FINANCIAL INSURANCE and NOELIA LUNA SUCET, Defendants. No. CIV
17-0260 JB\JHR. (D.N.M.).

Bhasker contends that, based on the information provided by the
Defendant, she agreed to pay a six-month premium for the State of
New Mexico mandated minimum automobile bodily injury and
uninsured/underinsured motorist coverage. Bhasker avers that, she
was driving eastbound on 1-40 in Albuquerque, New Mexico, when
another driver, Stephanie Martinez, failed to stop for the traffic
in front of her vehicle and struck Bhasker's car in the rear,
causing serious bodily injuries and other damages.  Bhasker avers
that, when she, through counsel, demanded Defendant provide her
with underinsured benefits that Defendant solicited and for which
the Plaintiff paid a premium, Financial Indemnity denied her claim
for underinsured benefits.

LAW REGARDING JUDGMENT ON THE PLEADINGS UNDER RULE 12(c)

After the pleadings are close but early enough not to delay trial a
party may move for judgment on the pleadings. A rule 12(c) motion
is designed to provide a means of disposing of cases when the
material facts are not in dispute between the parties. Claims
dismissed pursuant to a motion under rule 12(c) are dismissed with
prejudice.  

Any party may move for judgment on the pleadings if no material
facts are in dispute and the dispute can be resolved on both the
pleadings and any facts of which the Court can take judicial
notice. A motion pursuant to rule 12(c) is generally treated in the
same manner as a motion to dismiss under rule 12(b)(6). A motion
for a judgment on the pleadings will be granted if the pleadings
demonstrate that the moving party is entitled to judgment as a
matter of law.  
A court considering a motion for judgment on the pleadings should
accept all facts pleaded by the non-moving party as true and grant
all reasonable inferences from the pleadings in favor of the same.
The court must view the facts presented in the pleadings and draw
the inferences therefrom in the light most favorable to the
nonmoving party. All of the nonmoving parties' allegations are
deemed to be true, and all of the movants' contrary assertions are
taken to be false.  

LAW REGARDING DIVERSITY JURISDICTION AND ERIE

Under Erie, a federal district court sitting in diversity applies
state law with the objective of obtaining the result that would be
reached in state court. The Court has held that if a district court
exercising diversity jurisdiction cannot find a Supreme Court of
New Mexico opinion that governs a particular area of substantive
law the district court] must predict how the Supreme Court of New
Mexico would rule. Just as a court engaging in statutory
interpretation must always begin with the statute's text, a court
formulating an Erie prediction should look first to the words of
the state supreme court. If the Court finds only an opinion from
the Court of Appeals of New Mexico, while certainly the Court may
and will consider the Court of Appeals' decision in making its
determination, the Court is not bound by the Court of Appeals'
decision in the same way that it would be bound by a Supreme Court
decision.

NEW MEXICO LAW REGARDING NEGLIGENCE

Generally, a negligence claim requires the existence of a duty from
a defendant to a plaintiff, breach of that duty, which is typically
based on a standard of reasonable care, and the breach being a
cause-in-fact and proximate cause32 of the plaintiff's damages.  In
New Mexico, negligence encompasses the concepts of foreseeability
of harm to the person injured and of a duty of care toward that
person. Generally, negligence is a question of fact for the jury. A
finding of negligence, however, is dependent upon the existence of
a duty on the part of the defendant.

Whether a duty exists is a question of law for the courts to
decide. Once courts recognize that a duty exists, that duty
triggers a legal obligation to conform to a certain standard of
conduct to reduce the risk of harm to an individual or class of
persons.

NEW MEXICO LAW REGARDING NEGLIGENT MISREPRESENTATION

To prevail on a negligent misrepresentation in New Mexico courts, a
plaintiff must show: (1) the defendant made a material
representation to plaintiff (2) the plaintiff relied upon the
representation (3) the defendant knew the representation was false
or made it recklessly and (4) the defendant intended to induce
reliance by the plaintiff.

NEW MEXICO LAW REGARDING INSURANCE CONTRACTS

Under New Mexico law, insurance policies are interpreted like any
other contract, except that, where a policy term is `reasonably and
fairly susceptible of different construction, it is deemed
ambiguous and must be construed against the insurance company as
the drafter of the policy. The Supreme Court of New Mexico has
stated: Insurance policies almost always are contracts of adhesion,
meaning that `the insurance company controls the language' and `the
insured has no bargaining power.' The Supreme Court of New Mexico
described how insurance contracts are ones of adhesion in Sanchez
v. Herrera, 1989-NMSC-073, 783 P.2d 465 (1989).

The typical insured does not bargain for individual terms within
policy clauses; the insured makes only broad choices regarding
general concepts of coverage, risk, and cost. Not only does the
insurance company draft the documents, but it does so with far more
knowledge than the typical insured of the consequences of
particular words.

Cognizant of this imbalance in power, as a matter of public policy'
courts generally construe ambiguities in favor of the insured and
against the insurer. Accordingly, when a court finds that a term in
an insurance policy is ambiguous, the court's construction of the
policy will be guided by the reasonable expectations of the
insured.

NEW MEXICO LAW REGARDING CONTRACT INTERPRETATION

In contract cases, the role of the court is to give effect to the
intention of the contracting parties. The primary objective in
construing a contract is not to label it with specific definitions
or to look at form above substance, but to ascertain and enforce
the intent of the parties as shown by the contents of the
instrument. The Supreme Court of New Mexico went on to discuss the
parol-evidence rule:

The parol evidence rule is a rule of substantive law that bars
admission of evidence extrinsic to the contract to contradict and
perhaps even to supplement the writing. The rule should not bar
introduction of evidence to explain terms. As Professor Corbin
observes, No parol evidence that is offered can be said to vary or
contradict a writing until by process of interpretation the meaning
of the writing is determined. The operative question then becomes
whether the evidence is offered to contradict the writing or to aid
in its interpretation.

NEW MEXICO LAW REGARDING THE IMPLIED COVENANT OF GOOD FAITH AND
FAIR DEALING

The Supreme Court of New Mexico has indicated that the duty to not
act in bad faith or deal unfairly, which an implied covenant of
good faith and fear dealing within a contract imposes, becomes part
of the contract and the remedy for its breach is on the contract
itself. In the insurance context, however, a plaintiff can recover
tort damages for breach of this implied covenant.  

NEW MEXICO LAW REGARDING PUNITIVE DAMAGES

Punitive damages are not compensation for injury. Punitive damages
do not measure a loss to the plaintiff, but rather punish the
tortfeasor for wrongdoing and serve as a deterrent. Punitive
damages may not be awarded unless there is an underlying award of
compensation for damages. Punitive damages serve two important
policy objectives under our state common law: to punish
reprehensible conduct and to deter similar conduct in the future.

In determining punitive-damage awards, New Mexico courts apply a
preponderance of the evidence standard. To be liable for punitive
damages, a wrongdoer must have some culpable mental state and the
wrongdoer's conduct must rise to a willful, wanton, malicious,
reckless, oppressive or fraudulent level. Factors to be weighed in
assessing punitive damages are the enormity and nature of the
wrong, and any aggravating circumstances.  Punitive damages may be
imposed when a party intentionally or knowingly commits wrongs or
when a defendant is utterly indifferent to the plaintiff's rights,
even if the defendant lacked actual knowledge that his or her
conduct would violate those rights.

LAW REGARDING THE UPA

The UPA provides individual and class action remedies for unfair,
deceptive, or unconscionable trade practices. Generally speaking,
the UPA is designed to provide a remedy against misleading
identification and false or deceptive advertising.

To state a claim under the UPA for an unfair or deceptive practice,
a complaint must allege four elements:

First, the complaining party must show that the party charged made
an oral or written statement, visual description or other
representation that was either false or misleading. Second, the
false or misleading representation must have been knowingly made in
connection with the sale, lease, rental or loan of goods or
services in the extension of credit or collection of debts. Third,
the conduct complained of must have occurred in the regular course
of the representer's trade or commerce. Fourth, the representation
must have been of the type that may, tends to or does, deceive or
mislead any person.

In a class action under the UPA, statutory damages are available
only to the named plaintiff whereas class members can recover only
their actual damages. Injunctive relief under the UPA is available
to people likely to be damaged by an unfair or deceptive trade
practice under the principles of equity and on terms that the court
considers reasonable. Proof of monetary damage, loss of profits or
intent to deceive or take unfair advantage of any person is not
required.

Moreover, the court shall award attorney fees and costs to the
party complaining of an unfair or deceptive trade practice or
unconscionable trade practice if the party prevails.

LAW REGARDING THE UIPA

The New Mexico Legislature passed the UIPA to regulate trade
practices in the insurance business and related businesses,
including practices in this state which constitute unfair methods
of competition or unfair or deceptive acts or practices. Section
59A-16-4 proscribes certain misrepresentations that relate to
insurance transactions, including misrepresenting the benefits,
advantages, conditions or terms of any policy. Section 59A-16-5
forbids untrue, deceptive or misleading advertisements that relate
to insurance. Section 5916-8 makes actionable certain
falsifications of insurance records and the circulation of any
false statement of the financial condition of an insurer. Various
provisions in the UIPA proscribe discrimination in relation to
insurance transactions. Section 59A-16-19 prohibits
anti-competitive insurance practices resulting or tending to result
in unreasonable restraint of, or monopoly in, the business of
insurance.

The Court concludes that Financial Indemnity is not entitled to
judgment as a matter of law as to all claims for insureds who have
non-minimum limits UIM coverage, because Bhasker has alleged that
Financial Indemnity's business practices misled and deceived not
only herself but also proposed class members who purchased
greater-than-minimum-limits UIM coverage.

The Court also concludes that, at this stage in the proceedings,
Financial Indemnity can be liable to Bhasker for extracontractual
and punitive damages, because Bhasker has alleged that Financial
Indemnity's decision to sell illusory UIM coverage was willful or
reckless.  

FINANCIAL INDEMNITY IS NOT ENTITLED TO JUDGMENT AS A MATTER OF LAW
AS TO ALL CLAIMS FOR INSUREDS WHO HAVE NON-MINIMUM LIMITS UIM
COVERAGE, BECAUSE BHASKER HAS ALLEGED THAT FINANCIAL INDEMNITY'S
BUSINESS PRACTICES MISLED AND DECEIVED PROPOSED CLASS MEMBERS WHO
PURCHASED SUCH COVERAGE.

BHASKER'S USE OF THE WORD "ILLUSORY" ENCOMPASSES DECEPTIVE AND
MISLEADING BUSINESS PRACTICES.

In the MJP, Financial Indemnity asserts that this Court's Order
indicates clearly that the illusory coverage claim raised by this
case applies to minimum limits UIM coverage, not where any level of
UIM limits above the minimum is at issue.

Financial Indemnity cites language from the Court's MOO which
emphasizes, for example, that Bhasker's UIM insurance is illusory
and that, because of New Mexico's offset law, there is virtually no
possible underinsured minimum limits claim available to Bhasker and
other similarly situated members of the class. Financial Indemnity
argues that Bhasker's illusory coverage theory does not apply
outside the minimum limits UIM context, because, for example, if
the insured has UIM limits of $50,000, $100,000 or any amount
greater than $25,000, and the tortfeasor has $25,000 in bodily
injury liability limits and that amount is offset, the injured
insured will recover UIM benefits where the damages exceed the
tortfeasor's limits.

Although the Court agrees with Financial Indemnity that coverage at
higher-thanminimum limits is not illusory in the sense that such
policies never confer a financial benefit to insureds, the Court
maintains its position that Bhasker uses the word "illusory" not
only to refer to valueless, minimum limits UIM coverage but also as
a synonym for the word deceptive, i.e., not in reference to any
particular legal doctrine, such as, for example, the doctrine of
illusory coverage.

The Court thus concludes that Financial Indemnity's
characterization of Bhasker's illusory coverage theory as limited
to minimum limits UIM coverage is unavailing.

THE SUPREME COURT OF NEW MEXICO WOULD CONCLUDE THAT
HIGHER-THAN-MINIMUM-LIMITS UIM COVERAGE HAS VALUE, BECAUSE SCHMICK
OFFSETS ARE IN ACCORD WITH NEW MEXICO PUBLIC POLICY.

The Court agrees with Financial Indemnity that higher-than-minimum
limits UIM coverage is not illusory in the sense that such coverage
never confers a financial benefit to insureds. Although several
state supreme courts have held such coverage illusory, the Court
predicts that the Supreme Court of New Mexico would not join them
based on the Supreme Court of New Mexico's prior analysis of the
legislative intent behind Section 66-5-301 in Schmick.

Although Schmick does not discuss the illusory coverage question,
the Supreme Court of New Mexico in Schmick concludes that our
statute limits the insured's recovery to the amount of underinsured
motorist coverage purchased for the insured's benefit; that amount
will be paid in part by the tortfeasor's liability carrier and the
remainder by the insured's uninsured motorist insurance carrier.
Schmick, 1985-NMSC-073, 28, 704 P.2d 1092 at 1099. This position
represents one of two competing statutory approaches to insurance
liability offsets in the UIM context. The Supreme Court of West
Virginia, to which Bhasker repeatedly directs the Court's
attention, notes that its state's UIM legislation, sometimes called
reduction-type or decreasing-layer underinsured motorist coverage,
is premised upon the idea that the purpose of underinsured motorist
coverage is to put the insured in the same position he or she would
have occupied had the tortfeasor's liability insurance limits been
the same as the underinsured motorist coverage limits purchased by
the insured.

Bhasker's assertion that Financial Indemnity benefits at insureds'
expense each time Financial Indemnity applies a Schmick offset to
prevent insureds from receiving their purchased UIM coverage's full
dollar value, is true; however, Financial Indemnity does so in
accordance with the law. Section 66-5-301 entitles insurers, in the
UIM context, to offset the tortfeasor's liability limits payments.
Although this result means that an insurer may offset an insured's
entire UIM coverage when the tortfeasor and the insured have equal
liability and UIM limits, respectively, Schmick and its progeny
indicate that this effect is by Legislative design. Unlike minimum
limits UIM coverage, which the Court in its MOO predicts that the
Supreme Court of New Mexico would conclude is illusory because it
rarely, if ever, compels insurers to pay out benefits, insurers
avoid paying on non-minimum limits UIM policies only when insureds
and tortfeasors by happenstance have equal UIM and liability
limits.

Hence, non-minimum limits UIM policies have value. The Court
recognizes that UIM statutes from other jurisdictions are more
favorable to insureds than Section 66-5-301 is to New Mexico
policyholders when such statutes permit insureds to recover fully
for their loss. Nonetheless, the Supreme Court of New Mexico's
interpretation of the Legislative intent behind Section 66-5-301
remains settled law. The Court lacks both authority and inclination
to disturb it.

BHASKER'S WELL-PLED COMPLAINT ALLEGES THAT FINANCIAL INDEMNITY'S
BUSINESS PRACTICES DECEIVED AND MISLED THE PROPOSED CLASS, TO
INCLUDE UIM POLICYHOLDERS WITH GREATER-THAN-MINIMUM LIMTS COVERAGE

The question whether the Supreme Court of New Mexico would conclude
that higher limits UIM coverage is illusory has no bearing on
Bhasker's claim that Financial Indemnity's policy application
violated her and the proposed class members' reasonable
expectations. Despite the Court's prediction that the Supreme Court
of New Mexico would not conclude that the Schmickoffset renders
higher-than-minimum-limits UIM coverage illusory, Bhasker may
proceed on her theory that Financial Indemnity's misleading and
deceptive business practices engendered for the proposed class to
include insureds who purchased non-minimum limits coverage a
reasonable expectation that UIM insurance provides additional
coverage when the insured's damages exceed what is available from
the tortfeasor.

Bhasker's well-pled Complaint effectively extends her
deceptive-and-misleading business-practices theory to the proposed
class. According to the Complaint, Bhasker asserts that she brings
this action on her own behalf, and on behalf of the many insured
around the state who have been deceived by Defendant's practices.
The alleged deception includes Financial Indemnity's use of,
according to Bhasker, an incorrect and inappropriate form from
another state, which included ambiguous language that Plaintiff
could purchase underinsured coverage in excess of her selected
liability coverage limits. Bhasker submits several documents in
support: (i) Bhasker's insurance application summarizing her policy
and (ii) a form that Bhasker signed that features a one-paragraph
description of UM/UIM coverage.

In its motion to dismiss analysis, the Court must accept all facts
pleaded by the nonmoving party as true and grant all reasonable
inferences from the pleadings in favor of the same. Bhasker has
asserted facts supporting her allegations that Financial Indemnity
misled her and the proposed class when selling them UM/UIM
coverage, for example, that Financial Indemnity intentionally or
negligently drafted ambiguous UIM policy applications that led its
insureds to believe that New Mexico is not an offset state.
Assuming that such factual allegations are true  as the Court must
at this stage Bhasker is entitled to relief. Because Financial
Indemnity denies Bhasker's factual allegations, Financial
Indemnity's request for judgement on the pleadings is
inappropriate. Consequently, the Court will not as a matter of law
block Bhasker's claims as to insureds who have non-minimum limits
UIM coverage.

FINANCIAL INDEMNITY CAN BE LIABLE TO BHASKER FOR EXTRACONTRACTUAL
AND PUNITIVE DAMAGES, BECAUSE BHASKER HAS ALLEGED THAT FINANCIAL
INDEMNITY'S DECISION TO SELL ILLUSORY UIM COVERAGE WAS WILLFUL OR
RECKLESS

The Court will deny the MSJ's request to grant Financial Indemnity
partial judgment on the pleadings as to Bhasker's claims for
extracontractual and punitive damages, because Bhasker's Complaint
alleges that Financial Indemnity knew of and failed to avoid the
harm to insureds that results from selling illusory UIM coverage.
In the MJP, Financial Indemnity asserts that the Court may not
award punitive damages where, as here, a defendant has a
justifiable basis for its conduct.

Financial Indemnity further asserts that, where, as here, the
insurer had a legitimate basis for disputing the claim, courts have
refused to award punitive damages, even for erroneous coverage
determinations. The MJP discusses several cases where courts have
concluded that minimum limits UIM coverage is not illusory, thereby
suggesting, according to Financial Indemnity, that Financial
Indemnity has a reasonable basis for its position that minimum
limits UIM coverage provides value, and therefore did not act with
the requisite animus to allow for a valid extra-contractual or
punitive damages claim.

Bhasker's Complaint includes facts sufficient to support a
plausible claim for punitive damages, and, because the Court must
consider her allegations as true, including factual allegations
that the defendant was willful or reckless in its decision to
continue to sell illusory coverage to consumers in this state, the
Court will not dismiss her punitive damage claims at this stage of
the proceedings. The Court agrees with Bhasker that Financial
Indemnity may possess information regarding whether it knew that it
was violating New Mexico consumer protections laws, and the Court
will therefore permit discovery on this issue. Discovery may
produce evidence that Financial Indemnity knowingly misrepresented
that it would pay out full UIM benefits in the majority of UIM
claims situations, for example, by intentionally not disclosing New
Mexico's status as an offset state. The Court agrees with Bhasker
that such conduct is precisely the sort of information, which, if
presented to a jury, could lead to an award of punitive damages. If
discovery proves out by a preponderance of the evidence that
Bhasker's assertion that Financial Indemnity engaged in misleading
and deceptive business practices, punitive damages are appropriate
pursuant to New Mexico law.  

The Court is not permitting Bhasker's punitive damages claim to
proceed based on her theory that UIM coverage is without value, or
that Financial Indemnity should have known that the mere sale of
UIM coverage was harmful per se to its insureds. As stated above,
the Court concludes that Financial Indemnity had a reasonable basis
for enforcing the statutory offset as it did, and for asserting its
position that minimum limits UIM coverage is neither illusory nor
otherwise unlawful. The Court so concludes for three reasons: (i)
because the illusory-coverage-at-minimum-limits question is one of
first impression in New Mexico; (ii) because applying the statutory
offset is a long-standing practice among New Mexico insurers; and
(iii) because numerous out-of-state courts have held that a limits
offset in circumstances similar to Bhasker's is not unlawful. To
permit punitive damages when a defendant had a reasonable basis for
its belief would disregard New Mexico's policy objectives
underlying such an award.

Accordingly, absent evidence of bad faith or reckless disregard
related to the solicitation and sale of Financial Indemnity's UIM
policies, the Court will foreclose Bhasker's punitive damages
claims. At this stage in the proceedings, however, the Court will
permit further discovery requests that seek evidence relevant to
Financial Indemnity's knowledge of wrongdoing.  

Defendant's Motion for Judgment on the Pleadings and Memorandum of
Law in Support are denied.

A full-text copy of the District Court's February 7, 2019 Order is
available at https://tinyurl.com/y476weq8 from Leagle.com.

Helen Bhasker, Plaintiff, represented by Kedar Bhasker, Law Office
of Kedar Bhasker, LLC & Corbin Hildebrandt, Corbin Hildebrandt,
P.C.

Financial Indemnity Company, Defendant, represented by Kerri Lee
Allensworth, Allen Law Firm, Alicia M. Santos, O'Brien & Padilla,
PC & Mark L. Hanover -- mark.hanover@dentons.com -- Dentons, pro
hac vice.


KOVITZ SHIFRIN: Court Narrows Claims in Wahlert FDCPA 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 Defendants' Motion to Dismiss
in the case captioned  J.G. WAHLERT, Plaintiff, v. KOVITZ SHIFRIN
NESBIT, a professional corporation; KALMAN MANAGEMENT, INC., and
LOCH LOMOND PROPERTY OWNERS ASSOCIATION, Defendants. Case No. 17 C
8055. (N.D. Ill.).

KSN and LLPOA have brought separate motions to dismiss under Fed.
R. Civ. P. 12(b)(6) for failure to state a claim.

Plaintiff J.G. Wahlert, on behalf of himself and all others
similarly situated, has brought a six count amended putative class
action complaint against defendants Kovitz, Shifrin, Nesbit (KSN),
Kalman Management, Inc. (Kalman), and the Loch Lomond Property
Owners Association (LLPOA). Count I asserts a violation of the
Illinois Consumer Fraud and Deceptive Trade Practices Act (ICFA),
against all three defendants. Counts II and III, again brought
against all three defendants, allege a claim for tortious
interference and private negligence. Count IV is brought against
LLPOA and KSN for slander of title. Count V alleges trespass to
easement against Kalman and LLPOA. Count VI is brought solely
against KSN for violating the Fair Debt Collection Practices Act
(FDCPA).  

To survive a Rule 12(b)(6) motion, the complaint must state a claim
to relief that is plausible on its face. A complaint satisfies this
standard when its factual allegations raise a right to relief above
the speculative level. The complaint must give enough details about
the subject-matter of the case to present a story that holds
together.

Both KSN and LLPOA argue that the state law claims are barred by
their applicable statutes of limitations, which are three years for
the ICFA claims and five years for the tortious interference,
private nuisance, slander of title claims and trespass claims.  

Defendants argue that plaintiff has been subject to the alleged
improper assessments since he bought his property 27 years ago and
has been aware of his claims since at least 2011 when he filed the
state court action. Because generally a limitations period begins
when facts exist which authorize one party to maintain an action
against another, defendants argue that all of the state law claims
are barred.  

A statute of limitations is an affirmative defense that ordinarily
must be pleaded and proved by the defendant. The dismissal should
be on the pleadings under Rule 12(c), but that amounts to the same
thing as a dismissal under Rule 12(b)(6).

In the instant case, defendants essentially argue that the factual
background alleged in the complaint, along with the 2011 state
court complaint of which the court can and does take judicial
notice, demonstrate such an ironclad defense because it is obvious
that plaintiff was aware of his claim that LLPOA was improperly
attempting to assess dues and restrict access to the lake well
beyond the statute of limitations.

The court agrees that the 2011 complaint demonstrates that
plaintiff was aware of certain claims. But, the instant complaint
is based predominately on actions that have occurred well after
that complaint was dismissed. In particular, the instant complaint
alleges that these defendants recorded the 2015 Amended and
Restricted Declaration of Restrictions and Easements of LLPOA.

The state law counts are premised on this allegedly false
recording. This amounts to a new violation, which has occurred
within each applicable statute of limitations. Consequently,
defendants' motions to dismiss the state law counts based on
statute of limitations is denied.

KSN next argues that Count VI, which asserts a claim against it for
violation of the FDCPA by knowingly misrepresenting to plaintiff in
the collection letter that his obligations to pay assessments
constitutes an enforceable debt, must also be dismissed. KSN argues
that this count cannot stand because plaintiff has not identified a
viable state-law challenge to the enforceability of his obligation
to pay assessments because all of the state claims are barred by
the statute of limitations. Because the court has rejected
defendants' statute of limitations arguments, KSN's challenge to
Count VI also necessarily fails.

KSN also argues that it cannot be held liable for assisting its
client, LLPOA, in engaging in allegedly tortious conduct in seeking
to enforce plaintiff's obligation to pay his assessments.

The court agrees. In Illinois, an attorney owes a duty of care only
to his client and not to third parties. Although incorrect advice
to a client might cause that client to become liable to a third
party  it does not follow that the attorney would also be liable to
that party.

Plaintiff has made no such allegations in the instant case. And, as
KSN points out, it is new to the dispute between plaintiff and
LLPOA. Nothing in the complaint suggest that KSN was acting in any
manner other than for the purpose of representing its client's
interests.

Consequently, the court grants KSN's motion to dismiss Counts I
through IV.

Finally, LLPOA argues that Count I, which alleges a violation of
the ICFA, fails to state a claim because plaintiff has not alleged
that he is a consumer or that LLPOA's alleged wrongful actions have
some relation to consumer concerns.

The court agrees.

The ICFA prohibits the use of deceptive acts or practices in the
conduct of trade or commerce. To state a claim under the ICFA, the
complaint must allege: (1) a deceptive act or practice by the
defendant; (2) defendant's intent that plaintiff rely on the
deception; (3) the occurrence of the deception in the course of
conduct involving trade or commerce; (4) actual damages to
plaintiff; and (5) proximately caused by the deception.  

In the instant case, plaintiff is obviously not a consumer with
respect to LLPOA. Plaintiff has not alleged that he has purchased
any merchandise or services from LLPOA. As plaintiff points out,
however, the ICFA is not limited to consumers or purchasers. On the
contrary, Section 10(a) of the Act states that `any person who
suffers actual damages as a result of a violation of this Act
committed by any other person may bring an action against such
person.

The Plaintiff's claim against LLPOA does not, however involve trade
or commerce as it is defined under the Act. Despite plaintiff's
attempt to argue otherwise, the claims in this case do not involve
a real estate transaction in any manner.

The Plaintiff has not pled any facts to plausibly suggest that his
actions were akin to a consumer's or how defendants' actions
involve consumer protection concerns. As LLPOA argues, the instant
dispute is over competing property rights. Nothing about the
instant dispute or LLPOA's alleged improper actions involve or were
directed at the market generally. Consequently, the court concludes
that Count I fails to state a claim.

KSN's motion to dismiss is granted as to Counts I through IV and
denied as to Count VI. LLPOA's motion to dismiss is granted as to
Count I and denied in all other respects.

A full-text copy of the District Court's February 7, 2019
Memorandum Opinion and Order is available at
https://tinyurl.com/y4lsq5xd from Leagle.com.

J.G. Wahlert, on behalf of himself and all others similarly
situated, Plaintiff, represented by Christopher V. Langone,
Langone, Batson & Lavery LLC, Dan Patrick Johnson, Langone, Johnson
& Cassidy, LLC & James Patrick Batson, Langone, Batson & Lavery
LLC.

Kovitz Shifrin Nesbit, an Illinois professional corporation,
Defendant, represented by Jonathan N. Ledsky, Husch Blackwell LLP &
Scott J. Helfand, Husch Blackwell LLP.

Kalman Management, Inc., an Illinois Corporation, Defendant,
represented by Kathryn Ann Formeller, Tressler, LLP, Aon Hussain,
Tressler LLP, Katherine Frances Letcher, Tressler LLP & Lindsey D.
Dean, Tressler LLP.


LIONS GATE: Reports $54.8MM Cost on Case Settlements
----------------------------------------------------
Lions Gate Entertainment Corp. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on February 7, 2019,
for the quarterly period ended December 31, 2018, that the Company
has recorded a net expense of $54.8 million related to shareholder
litigation settlements.

Between July 19, 2016 and August 30, 2016, seven putative class
action complaints were filed by purported Starz stockholders in the
Court of Chancery of the State of Delaware (the "Fiduciary
Litigation"). These actions were consolidated into In re Starz
Stockholder Litigation, Consolidated C.A. No. 12584-VCG, and the
plaintiffs in the consolidated action filed a verified consolidated
class action complaint on August 16, 2016. On August 18, 2016,
plaintiffs filed a motion for expedited proceedings. On September
22, 2016, the court denied the motion.

The defendants filed answers to the verified consolidated class
action complaint on January 24, 2017. On May 16, 2018, the
plaintiffs filed a verified amended consolidated class action
complaint. The amended complaint named as defendants former members
of the board of directors of Starz Susan Lyne, Andrew Heller, Greg
Maffei, Christopher Albrecht, Daniel E. Sanchez, and Charles Y.
Tanabe. The amended complaint also named as defendants Dr. Malone
and Lions Gate.

The amended complaint alleged, among other things, that the members
of the Starz board of directors breached fiduciary duties owed to
Starz and the holders of Starz Series A common stock in connection
with the merger and related transactions; that Dr. Malone was a
controlling stockholder of Starz who breached fiduciary duties owed
to other Starz stockholders in connection with the merger and
related transactions; and that Lions Gate aided and abetted such
breaches of fiduciary duty. On June 18, 2018, the defendants
(except Mr. Heller and Ms. Lyne) filed answers to the amended
complaint. On July 3, 2018, Mr. Heller and Ms. Lyne filed a motion
seeking summary judgment on the claims against them.

On August 9, 2016, a putative class action complaint was filed by a
purported Starz stockholder in the District Court for the City and
County of Denver, Colorado: Gross v. John C. Malone, et al.,
2016-CV-32873. The complaint named as defendants the members of the
board of directors of Starz, Dr. Malone and Robert Bennett, as well
as Lions Gate and an affiliated entity.

The complaint alleges, among other things, that the members of the
Starz board of directors breached fiduciary duties owed to Starz
and the holders of Starz Series A common stock in connection with
the merger and the transactions contemplated by the merger
agreement, and that Dr. Malone, Mr. Bennett, Lions Gate, and Merger
Sub aided and abetted such breaches of fiduciary duty.

On December 10, 2016, the court granted the defendants' unopposed
motion to stay the action pending final resolution of the
consolidated Delaware action.

As disclosed in the Company's Current Report on Form 8-K filed on
August 24, 2018, on August 22, 2018, the parties to the Fiduciary
Litigation reached an agreement in principle providing for the
settlement of the Fiduciary Litigation on the terms and conditions
set forth in an executed term sheet. On October 9, 2018, the
parties to the Litigation executed a stipulation of settlement,
which was filed with the court (the "Stipulation").

The Stipulation provides for, among other things, the final
dismissal of the Fiduciary Litigation in exchange for a settlement
payment made in the amount of $92.5 million, of which $37.8 million
was reimbursed by insurance. The Company is continuing to seek
additional insurance reimbursement, including pursuant to a lawsuit
submitted by the Company on November 7, 2018 against certain
insurers.

Accordingly, in the nine months ended December 31, 2018, the
Company has recorded the net expense of $54.8 million in the
"shareholder litigation settlements" line item in the unaudited
condensed consolidated statement of operations related to these
items.

The Fiduciary Litigation settlement was approved by the Court of
Chancery of the State of Delaware and the settlement amount and
insurance reimbursement were paid during the quarter ended December
31, 2018.

On November 5, 2018, an insurer that entered into an agreement and
contributed $10 million to the Company's aggregate insurance
reimbursement filed a lawsuit seeking declaratory judgment for
reimbursement of its agreed upon payment.

The Company believes the lawsuit to be without merit and intends to
vigorously defend it.

Lions Gate Entertainment Corp. engages in motion picture production
and distribution, television programming and syndication, home
entertainment, interactive ventures and games, and location-based
entertainment in Canada, the United States, and internationally.
Lions Gate Entertainment Corp. was founded in 1986 and is
headquartered in Santa Monica, California.


LOUISIANA: Court Denies Protective Order in DWCC Inmates' Suit
--------------------------------------------------------------
The United States District Court for the Western District of
Louisiana, Shreveport Division, issued a Memorandum Order denying
Defendants' Motion for Protective Order in the case captioned
ANTHONY TELLIS, ET AL., v. JAMES M. LEBLANC, ET AL. Civil Action
No. 18-cv-0541. (W.D. La.).

Anthony Tellis and Bruce Charles on behalf of themselves and all
other similarly situated prisoners at David Wade Correctional
Center. Plaintiffs seek injunctive and declaratory relief regarding
cruel and unusual conditions of confinement for prisoners on
extended lockdown at DWCC. Plaintiffs allege, among other things,
that the conditions and the lack of appropriate mental health care
trigger the onset or worsening of mental illness, which creates
significant risk of serious harm to prisoners. Plaintiffs also
allege that the facts giving rise to their claims are rooted in
Defendants' systemic practices and policies, which apply with equal
force to all prisoners held on extended lockdown.

The Plaintiffs conducted a site inspection of DWCC with their
expert witnesses. The site inspection was authorized by the court
in a prior memorandum order that was issued pursuant to a discovery
motion. The court imposed the following conditions on the site
inspection. First, Defendants, their counsel, and their experts
could accompany Plaintiffs' counsel and Plaintiffs' experts during
all aspects of the site visit. Second, Defendants, their counsel,
and their experts were required to keep a sufficient distance
between them and Plaintiffs' counsel and experts during cell-front
prisoner interviews so that the interviews could be conducted with
a measure of respect and in a reasonably confidential manner.

Subsequently, Plaintiffs' counsel advised Defendants of their
intention to conduct an additional site visit to do attorney
walkthroughs of certain tiers. Defendants refused. Plaintiffs
responded to Defendants' denial by invoking the dispute resolution
provisions of the Middle District settlement agreement. Defendants
took the position that the settlement agreement did not apply once
litigation has begun.

After considering all of the parties' arguments, Defendants' Motion
for a Protective Order is denied.

The court does not believe that Plaintiffs are attempting to use
the settlement agreement to circumvent well-established discovery
procedures. The court finds that Plaintiffs' counsel are entitled
to conduct an additional tier walkthroughs and cell-front
interviews pursuant to Rule 26 and Rule The court does not perceive
this request as a fishing expedition, as Defendants contend.

A full-text copy of the District Court's February 7, 2019
Memorandum Order is available at https://tinyurl.com/y2dt3kn7 from
Leagle.com.

Anthony Tellis, on behalf of themselves and all other smimilarly
situated prisoners at David Wade Correctional Center & Bruce
Charles, on behalf of themselves and all other smimilarly situated
prisoners at David Wade Correctional Center, Plaintiffs,
represented by Jonathan Cameron Trunnell, Advocacy Center, 8325 Oak
St, New Orleans, LA 70118, Bruce W. Hamilton, American Civil
Liberties Union Foundation of LA, Katharine Murphy Schwartzmann,
American Civil Liberties Union Foundation of LA, Melanie Ann Bray,
Advocacy Center of LA, Ronald Kenneth Lospennato, Advocacy Center &
Sarah H. Voigt, Advocacy Center.

James M LeBlanc, Secretary of the Louisiana Department of Public
Safety and Corrections, Jerry Goodwin, Warden of David Wade
Correctional Center, Lonnie Nail, Col, Deborah Dauzat, Assistant
Warden & Johnie Adkins, Defendants, represented by Margaret Annette
C. Collier, Connell L. Archey, Kantrow Spaht et al, George Prentiss
Holmes, Kantrow Spaht et al, Keith Joseph Fernandez, Kantrow Spaht
et al & Randal J. Robert, Kantrow Spaht et al.

Gregory Seal, Dr & Aerial Robinson, Defendants, represented by
Margaret Annette C. Collier ,Connell L. Archey, Kantrow Spaht et
al, George Prentiss Holmes, Kantrow Spaht et al & Randal J. Robert,
Kantrow Spaht et al.


MAKE IT RIGHT: Charity Homeowners' Class Action Pending
-------------------------------------------------------
Maureen Callahan, writing for New York Post, reports that two years
after Hurricane Katrina devastated this city, Brad Pitt announced
his Make It Right Foundation. The goal, the actor said, was to do
what local, state and the federal government had not: rebuild homes
for those left among the neediest, the residents of New Orleans'
Lower Ninth Ward.

"I couldn't believe nothing was going on," Pitt said in 2009. "I
recalled the pictures of people on roofs, begging for help, and I
couldn't believe that this was our America."

To great fanfare, Pitt announced the commissioning of 13
starchitects, Frank Gehry among them, to design homes that were not
just affordable but technologically advanced and environmentally
sustainable. As the founder and face of MIR, Pitt gave interviews
to the New York Times, CNN and "Today" among others.

He walked a gushing Ellen DeGeneres and her camera crew through the
Lower Ninth, and threw a star-studded gala called A Night to Make
it Right, which raised a reported $5 million. He appeared on the
cover of Architectural Digest, doffing his cap in front of a newly
constructed home. "Brad Pitt Makes it Right in New Orleans," read
the headline.

Today, many of these homes are not just falling apart but could be
fatal hazards. Page Six recently reported that the city of New
Orleans has warned all 109 MIR homeowners that their natural gas
meters may have been improperly installed, potentially causing
their houses to explode. Residents are again desperate. Some say
Pitt, once a presence here, hasn't been seen in years. Last July,
an abandoned Make It Right home was completely demolished after
neighbors complained that it was a safety hazard and an eyesore.

Now, Pitt and Make It Right are the subjects of a class-action
lawsuit brought by MIR homeowners. Pitt's lawyers, in court
filings, are attempting to exclude him from litigation.

Pitt declined comment, but plaintiffs' attorney Ron Austin spoke to
The Post.

"I'm extremely disappointed and a little disgusted, given what his
public persona has been," Austin says. "Every time there's been
good press, Mr. Pitt has been smiling, shining for the cameras,
taking credit, continuing to say he's not abandoning the project.
But the reality is his legal team is doing everything they can to
have him removed from this lawsuit. If he gets out of it, residents
of Make It Right will be stuck in homes of disrepair with no
recourse."

Mary Picout and her husband bought their MIR home in 2010 for
$156,000 -- about what most residents paid. This is something MIR
residents want known: Neither Pitt nor MIR gave these homes away.
Before Katrina, some had been renters, others, like the Picouts,
homeowners. Mary says there was just two years left on their
mortgage when Katrina hit. Brad Pitt and MIR seemed like a
godsend.

A couple of years in came the problems. Their wooden porch began
rotting and sprouting mold. That, she says, MIR fixed. A lift that
had been installed along the porch steps went out. They began
having issues with heat and air conditioning. The microwave stopped
working two years in, and their hot-water heater may need
replacing. Mary says she was told by a serviceman that, for the
latter, "all you have to pay is $2,000."

She was shocked. "I said, 'You say $2,000 like it's a nickel.' "

She came to believe that many of these appliances were outdated
donations from companies looking for tax write-offs. "Turned out
our hot-water heater was 10 years old."

Mary and her husband lack resources -- internal, physical,
financial. It doesn't matter that Make It Right maintains an office
at the end of her street, one with a black Mercedes SUV parked
outside. No one ever answers her calls. Now she's worried about a
possible gas leak and is waiting on the fire department to inspect
their home.

"I'm an older person," she says. She is small and bespectacled and
missing several teeth. "I can't go outside and fix stuff."

Her home, she says, with its unusual exterior -- an undulating slab
of steel slapped on a horizontal structure that resembles a trailer
-- has been one of MIR's most photographed. Yet she isn't sure how
much responsibility Pitt bears. "I don't think he was dealing with
the contractors," she says. "It is his organization .  .  . but
the people in the organization are the ones who misused funds and
left everyone high and dry."

She says Pitt used to attend community meetings and was somewhat
accessible to MIR homeowners. "The last time he was here was 2015,"
she says. She thought he understood what they were going through.

Alfreda Claiborne and her husband, Walter, moved into their Make It
Right house in 2010. Three to four years in, she says, it began
falling apart.

The wooden steps leading up to her porch, she says, have rotted so
badly she can use only one side. Steps leading from the back door
are too dangerous to use, she says, because the railing has come
loose. The foundation isn't level, and the house shifts. The gas
leaks started last year. They have issues with hot water and mold.
A banister once came off in her hand as she was climbing stairs.

"We called Make It Right several times," she says. "Nobody ever
came out."

In 2017, her husband had a stroke. Alfreda says she works two jobs,
at a doctor's office during the day and in janitorial at night. She
was afraid to go to work because there was now a hole in their
porch, and she was afraid Walter would fall through. Finally, she
says, Make It Right sent someone.

"But they didn't fix it," she says. "They just put plywood down."

She and Walter also live on the same street as the Make It Right
office, and she has gone down there herself, most recently three
weeks ago.

"I don't understand," she says. "They make it seem like somebody's
there, but when you knock, no one answers."

The Post knocked on the office door several times and walked around
the structure, another elevated trailer-like home with rust on the
doors, peeling siding, insulation puffing out in front and what
looked like green mold on the front and side. The windows were
obscured by cheap venetian blinds, and it was impossible to tell if
anyone was inside.

After about 10 minutes, an agitated woman came out holding a
cellphone. When asked for comment she said, "I'm sorry, that's
impossible, but you have a great day. Take care."

Take care. This was the premise of Make It Right. Now it seems more
like cut-and-run.

It's hard to overstate what a draw Pitt's celebrity has been here
and what a shadow he has cast. He once worked out of an office next
door to one of MIR's first homes, a limo parked outside. He and
then-wife Angelina Jolie had a home in the French Quarter, which
they sold in 2016. Make It Right maintained another fancy office on
Magazine Street, which today looks as if it was hastily abandoned,
papers strewn everywhere, Post-Its stuck to computer screens, model
homes under Plexiglas.

"The Brad Pitt Houses," as they are known, were meant to be simple
and reflective of the local culture. Instead they bear a wholly
anomalous DNA -- not just to the Lower Ninth but to anything you or
I would recognize as a home.

The shapes are inorganic, asymmetrical and angular. Dead space
abounds. Some are called "shoebox homes," the roofs covered with
another elevated roof, unused outdoor space for no discernible
purpose. There are needless flourishes -- mesh-like grid work
partially obscuring some structures, a large slanted wall extending
diagonally from the roof to the ground on others, some simply
looking like three or four different designs jammed together. The
colors, too, are aggressive, loud teals and purples and yellows.

These are houses that bear the fingerprints of narcissism, meant to
satisfy the architects and, it's fair to say, design and
architecture buff Pitt.

"I get this well of pride when I see this little oasis of color,"
Pitt told Nola.com in 2015.

It all seems quite far from what residents had asked of one MIR
architect, who in turn told the New York Times that the homes would
be built for "a house where the baby can be sleeping in the back,
the mama making red beans in the kitchen and the grandpa can be on
the front porch entertaining neighbors."

Then there are the serious structural failures. Multiple
foundations are visibly crooked on these elevated homes. Some
rooftops are flat -- hardly ideal for a rain-prone region. The wood
used in porch and stairway construction, the ostensibly
rot-resistant TimberSIL, not only rots but, residents say, won't
take sealant -- and humidity in the summer is unbearable.

Some elevated houses are missing stairways leading from backdoors.
One resident told The Post his outdoor elevator, installed for his
elderly mother's use, flooded because it was missing a cover. There
are HVAC problems. Another resident says she has brown streaks on
her walls and her pictures keep falling down. Most alarming are the
electrical problems and gas leaks.

Residents say two MIR employees came through within the last year,
offering inspections only if each homeowner signed a piece of
paper. The class action alleges that the small print contained a
nondisclosure and binding-arbitration agreements. The lawsuit
further alleges that no MIR inspection reports have been
forthcoming.

David Hale, a 53-year-old offshore worker, says he was duped into
signing such an agreement. "They lied to me," he says. "When they
gave me the form, the lady said it was to have authorization to
come on my property." The small print, he says, stipulated he would
never sue.

"I wouldn't know," Hale says. "I'm reading words I've never heard
before. I don't have much education." He says he stopped talking to
Make It Right in 2012 or 2013, after complaining of black mold,
buckling floors, a shifting foundation, wood beams splitting and
the wood porch cracking.

"They kept saying, 'We're sending somebody,' and they never would,"
Hale says. "This house is only seven years old." He bought, in
part, because of Pitt's reputation and celebrity. "We think it was
a great thing he was doing, but look at the results. This is where
I was going to retire, but I can't live like this. What am I going
to do?"

Even today, Pitt's aura has made the Lower Ninth Ward a most
unlikely tourist attraction. There are organized trips by buses and
bicycles. Some visitors come alone in cabs. Yet the Lower Ninth is
still incredibly poor and unsafe. Across the street from one MIR
house, a hypodermic needle was embedded in the grass. Homes are
abandoned, large dead trees cut down and left on sidewalks, cars at
times burnt out. There is no Hollywood ending here.

Make It Right appears to be in financial crisis. According to a
2018 Guidestar report, the foundation — which has not filed a tax
return since 2015 — took in more than $5 million in government
grants, had total assets of $43,297,856 and liabilities of
$43,315,429.

It's fair to question where all this money really went. In 2016,
The Post reported self-dealing between Make It Right and his and
ex-wife's Maddox Jolie-Pitt Foundation: After People paid the
couple $14 million for photos of their newborn twins in 2008, MIR
got $1 million, and the year before that, listing itself a
"consultant" to MIR, the Maddox Jolie-Pitt Foundation was paid
$204,867.

The GuideStar report has MIR with more than $11 million in expenses
with nearly $9 million in income -- this, to build 109 homes valued
at about $150,000 each, and a founder with a reported personal net
worth of $240 million.

Incredibly, there's still a degree of good will toward Pitt here.
If he hopes to retain it -- in the Lower Ninth and beyond -- a
financial settlement with these residents seems not just the
smartest solution but the most compassionate and, frankly, the
right one.

That said, litigation is ongoing. The next hearing is scheduled for
tomorrow. Otherwise silent on the matter, Pitt gave a rare
statement to a local NBC affiliate just last year.

"I made a promise to the folks of the Lower Ninth Ward to help them
rebuild," he said. "It's a promise I intend to keep." [GN]


MDL 1616: Court OKs Settlement Funds Distribution
-------------------------------------------------
The United States District Court for the District of Kansas issued
a Memorandum and Order granting Jack Baumstark, Sr.'s Motion for a
Distribution of Settlement Funds to Him in the case captioned IN
RE: URETHANE ANTITRUST LITIGATION, This document relates to: The
Polyether Polyol Cases. MDL No. 1616, Case No. 04-1616-JWL (D.
Ks.).

This matter comes before the Court on the motion by claimant Jack
Baumstark, Sr. for distribution of settlement proceeds to him  and
the cross-motion for distribution of a portion of those proceeds to
competing claimant Class Action Refund LLC (CAR).

A class of plaintiffs brought antitrust claims against various
defendants relating to purchases of polyether polyol products. One
class member, D.H. Litter Company, Inc. (DHL), entered into a
contract with Class Action Refund, Inc. (CAR), a third-party filer.
The contract provided that CAR would file and pursue any settlement
claims in this litigation on behalf of DHL, and that DHL would pay
CAR 33 percent of the proceeds of any such claim filed by CAR.
During the course of the litigation, various settlements were
effected, and in July 2016, the Court approved a class settlement
with Dow Chemical Company (Dow) and a plan of distribution among
class members.
  
Mr. Baumstark argues that he is the owner of the claim because of
the APA between DHL and Archway and the assignment to him from
Archway. He further argues that CAR has no interest in the proceeds
because Archway did not assume any liability with respect to the
DHL-CAR contract. Mr. Baumstark notes that his ownership is
undisputed, as recognized by class counsel and the administrator,
because the other claimant (DHL) withdrew its claim.

In its motion, CAR identifies two issues for the Court: first,
whether Mr. Baumstark is entitled to the claim; and second,
regardless of the answer to the first question, whether CAR is
entitled to its 33-percent fee. With respect to the first issue,
CAR states in the fact section of its brief that the APA provisions
cited by Mr. Baumstark do not appear to provide for transfer of
this claim, and it notes that Mr. Baumstark did not include various
schedules in submitting a copy of the APA. In the remainder of its
brief, CAR opposes Mr. Baumstark's arguments concerning CAR's
entitlement to a fee.

The Court agrees with Mr. Baumstark that his assertion of ownership
has not been disputed by any other possible owner of the claim.
That effectively ends the Court's inquiry. CAR has no basis to
argue otherwise because it is not a competing claimant. The other
claim was filed by CAR on behalf of DHL, the class member, and DHL
withdrew that claim. Thus, there is only one claim to these
proceeds, and the dispute concerns only CAR's entitlement to a
portion of the proceeds.

Most importantly, CAR has not shown that it has a present ownership
interest in the claim or any portion thereof. CAR has not put
forward any theory to support such an interest, whether obtained by
assignment, lien, security interest, or other means. The contract
with DHL contains no language creating such an interest in favor of
CAR.

Jack Baumstark, Sr.'s motion for a distribution of settlement funds
to him is hereby granted, and class counsel and the claims
administrator shall distribute the retained proceeds in their
entirety to him. The competing motion by Class Action Refund LLC is
denied.

A full-text copy of the District Court's February 7, 2019
Memorandum and Order is available at https://tinyurl.com/y2wzdvfz
from Leagle.com.

Urethane Antitrust Litigation, Plaintiff, represented by George A.
Hanson -- anson@stuevesiegel.com, Stueve Siegel Hanson LLP, Norman
Eli Siegel  -- siegel@stuevesiegel.com -- Stueve Siegel Hanson LLP,
Rex A. Sharp, Rex A. Sharp, PA, Roy Morrow Bell --
roy.bell@troutman.com -- Troutman Sanders LLP, Steven A. Kanner --
skanner@fklmlaw.com -- Freed Kanner London & Millen, LLC, Susan G.
Kupfer -- skupfer@glancylaw.com -- Glancy Binkow & Goldberg LLP, W.
Joseph Bruckner -- wjbruckner@locklaw.com -- Lockridge Grindal
Nauen, PLLP, pro hac vice, W. Joseph Hatley --
jhatley@spencerfane.com -- Spencer Fane LLP & Yvonne M. Flaherty --
ymflaherty@locklaw.com -- Lockridge Grindal Nauen, PLLP, pro hac
vice.

BASF AG, Defendant, represented by Andrew Stanley Marovitz --
sparzen@mayerbrown.com -- Mayer Brown, LLP, David F. Oliver  --
DOLIVER@BERKOWITZOLIVER.COM -- Berkowitz Oliver LLPMO, Floyd R.
Finch, Jr., Floyd Finch Law Offices, Jason Brett Fliegel --
JFliegel@mayerbrown.com -- Mayer Brown, LLP & Terri A. Mazur, Mayer
Brown, LLP.


MDL 2801: May 16 Settlement Fairness Hearing Set
------------------------------------------------
A Third Round of Settlements Has Been Reached by Direct Purchaser
Plaintiffs Through Their Attorneys Led by Court-Appointed Counsel,
the Jose Saveri Law Firm Inc., with Some of the Defendants in a
Class Action Lawsuit Involving Capacitors

If you directly purchased aluminum, tantalum or film capacitors
between January 1, 2002 through December 31, 2013 (the "Class
Period"), you could be affected by the Court's Class Certification
Decision and Order.

Please read this notice carefully

On November 14, 2018, the Hon. James Donato of the United States
District Court for the Northern District of California entered an
order certifying a class of direct purchaser plaintiffs (the
"Class") in a class action lawsuit involving alleged agreements
among certain manufacturers to raise or stabilize the prices for
aluminum, tantalum and film capacitors ("Capacitors"). (Dkt. 385 of
In re Capacitors Antitrust Litig., 3:17-md-02801-JD (N.D. Cal.))

What is this lawsuit about?
The lawsuit claims that Defendants entered into agreements
artificially to raise, fix, or stabilize the prices of aluminum,
tantalum, and film capacitors ("Capacitors") in violation of
federal antitrust law. Each of the Defendants, including the
Settling Defendants, expressly denies that it violated any laws or
engaged in any wrongdoing, except that: (a) on January 21, 2016,
NEC TOKIN Corporation pleaded guilty to participating in a
conspiracy to fix prices of certain electrolytic capacitors; (b) on
June 9, 2016, Hitachi Chemical Co., Ltd. pleaded guilty to
participating in a conspiracy to fix prices of certain electrolytic
capacitors; (c) on October 11, 2017, ELNA Co., Ltd and Holystone
pleaded guilty to participating in a conspiracy to fix prices of
certain electrolytic capacitors; (d) on October 12, 2017, Rubycon
Corporation pleaded guilty to participating in a conspiracy to fix
prices of certain electrolytic capacitors; (e) on October 25, 2017,
Matsuo Electric Co., Ltd. pleaded guilty to participating in a
conspiracy to fix prices of certain electrolytic capacitors; (f )
on November 8, 2017, Nichicon Corporation pleaded guilty to
participating in a conspiracy to fix prices of certain electrolytic
capacitors; (g) on May 31, 2018, Nippon Chemi-Con Corporation
pleaded guilty to participating in a conspiracy to fix prices of
certain electrolytic capacitors; and (h) Panasonic Corporation
reported itself to the United States Department of Justice and
acknowledged that it and Sanyo Electric Co., Ltd., which was
previously a separate entity but which was acquired by Panasonic
Corporation, had violated the antitrust laws of the United States
in relation to the prices of certain capacitors.

The Court has previously approved settlements of Plaintiffs' claims
against the Previously Settled Defendants: Fujitsu Ltd., Hitachi
Chemical Co., Ltd., Hitachi AIC, Inc., Hitachi Chemical Co.
America, Ltd., NEC Tokin Corporation, NEC Tokin America, Inc.,
Nitsuko Electronics Corporation, Okaya Electric Industries Co.,
Ltd., Okaya Electric America, Inc., ROHM Co., Ltd., ROHM
Semiconductor U.S.A., LLC, Soshin Electric Co., Ltd., and Soshin
Electronics of America Inc.

Who is in the Class?
In general, direct purchasers of Capacitors are members of Class if
they meet the following definition:

All persons (including individuals, companies, or other entities)
that purchased Capacitors (including through controlled
subsidiaries, agents, affiliates, or joint ventures) directly from
any of the Defendants, their subsidiaries, agents, affiliates, or
joint ventures from January 1, 2002 to December 31, 2013 (the
"Class Period"), and you such persons are: (a) inside the United
States and were billed or invoiced for capacitors by one or more
Defendants during the Class Period (i.e., where capacitors were
"billed to" persons within the United States); or (b) outside the
United States and were billed or invoiced for capacitors by one or
more Defendants during the Class Period, where such capacitors were
imported into the United States by one or more Defendants (i.e.,
where the capacitors were "billed to" persons outside the United
States but "shipped to" persons within the United States).

Excluded from the Class are (i) Defendants (and their subsidiaries,
agents, and affiliates); (ii) shareholders holding more than 10%
equity interest in Defendants; (iii) each member of the Class that
timely requests exclusion by "opting out"; (iv) governmental
entities; and (v) the judges and chambers staff in this case,
including their immediate families.

On November 14, 2018, the Hon. James Donato of the United States
District Court for the Northern District of California entered an
order certifying the Class. (Dkt. 385 of In re Capacitors Antitrust
Litig., 3:17-md-02801-JD.

Who represents the Settlement Class?
The Court appointed the following law firm as Interim Lead Class
Counsel (also referred to as "Plaintiffs' Counsel" or "Class
Counsel") to represent the Class:

          Joseph R. Saveri
          JOSEPH SAVERI LAW FIRM, INC.
          601 California Street, Suite 1000
          San Francisco, CA 94108

What do the partial settlements provide?
The Settling Defendants have agreed to pay funds into an Escrow
Account for the benefit of Plaintiffs and the Settlement Class.
Counsel will use the Escrow Account for reimbursement of such fees
and expenses related to the provision of notice to the Class
Members.

The Settling Defendants have agreed to pay into the Escrow Account
for the benefit of Plaintiffs and the Settlement Class the
following (the "Settlement Fund"):

   * Nichicon has agreed to pay USD $90,000,000.00 by January 31,
2019.
   * Rubycon has agreed to pay USD $18,000,000.00 in two
installments by January 23, 2019. Additionally, Rubycon has agreed
to pay up to USD $12,000,000.00 in contingent payments based on
Rubycon's financial performance through its fiscal year ending
September 30, 2019.

As a Settlement Class Member, you will give up, or "release," your
claims against the Settling Defendants. This release includes any
claims made or that could have been made arising from the facts
alleged in this class action lawsuit.

What are my rights?

To receive a share of the Settlement Fund, you will need to sign
and mail a Claim Form.  A copy of the Claim Form is available at
the Settlement Website.  You may also call the claims administrator
at 1-866-903-1223.

You may submit a completed Claim Form by: (1) uploading it online
via the Settlement Website, by no later than April 15, 2019, at
11:59 p.m., Pacific Time; or (2) mailing completed Claim Form to
the Claims Administrator, In re Capacitors Antitrust Lawsuit, at PO
Box 2563, Faribault, MN 55021-9563 postmarked no later than April
15, 2019.

To exclude yourself from one or more of the settlements with
Settling Defendant(s) or from the ongoing litigation, you must
submit your Opt-Out Request Letter postmarked via First Class
United States Mail (or United States Mail for overnight delivery)
no later than April 15, 2019, (or received by the Notice and Claims
Administrator by that date if sent by fax or e-mail) at the
following address:

Notice and Claims Administrator
Capacitors Antitrust Direct Purchaser Litigation Settlement
P.O. Box 2563
Faribault, MN 55021-9563

The Court is scheduled to hold a final Fairness Hearing on May 16,
2019, at 3:00 p.m. to decide whether to approve the proposed
partial settlements and the request for the payment of attorneys'
fees and the reimbursement of litigation expenses.

At the Fairness Hearing, Plaintiffs' Counsel will ask the Court to
approve payment $27 million (25% of the Settlement Fund) in
attorneys' fees, payable upon the Court's approval of the requested
fees. Class Counsel will also seek 25% of any contingent payments
that Rubycon pays into the Settlement Fund. Class Counsel also
intends to request $3 million (2.8% of the non-contingent portion
of the Settlement Fund) to reimburse incurred litigation costs and
expenses, and to create a reserve for anticipated litigation
expenses through trial. If the Court awards these payments, they
will be paid from the Settlement Fund along with administrative
fees and expenses related to the provision of notice to the
Settlement Class Members, processing of Claim Forms, and
distributing Settlement Funds to the Settlement Class Members
submitting valid Claim Forms.

Settlement payments to Settlement Class Members will be distributed
after one or more of the settlements is approved, and after
appeals, if any, are resolved in the Settlement Class' favor. Class
Counsel will remit the funds, through the Notice and Claims
Administrator, in one or more distributions that may include future
settlements with Non-Settling Defendants.

This is a Summary Notice. For more details, call toll free
1-866-903-1223, or visit www.CapacitorsAntitrustSettlement.com. You
may also write to the Claims Administrator, In re Capacitors
Antitrust Lawsuit, P.O. Box 2563, Faribault, MN 55021-9563.


MERCEDES-BENZ USA: Judge Allows Emissions Class Action to Proceed
-----------------------------------------------------------------
Automotive News Europe and Reuters report that a federal judge in
New Jersey allowed a class-action lawsuit accusing Mercedes-Benz
USA and Robert Bosch of diesel-emissions cheating to proceed,
denying motions by the defendants to dismiss the case.

The lawsuit alleges Mercedes teamed up with Bosch to program its
BlueTEC vehicles to release illegally high, dangerous levels of
emissions via a "defeat device," similar to the that used by
Volkswagen Group that sparked its 3-year-old emissions-cheating
scandal.

Such defeat devices turn off or limit emissions reductions during
real-world driving conditions but not during vehicle-emissions
tests. A defeat device allows a vehicle to pass government
emissions testing while exceeding pollution standards under
real-world driving conditions.

Emails to Mercedes and Bosch seeking comment were not immediately
returned.

The opinion, filed Feb. 1, mostly denied Mercedes' motions to
dismiss the case's core class-action claims that allege Mercedes'
and Bosch's actions violated several state consumer rights laws,
and the Racketeer Influence and Corrupt Organization Act. The suit
also states the automaker's omissions and misrepresentations
constitute fraudulent concealment.

The complaint accuses Mercedes of deceiving consumers by failing to
disclose the defeat device despite marketing BlueTEC as "the
world's cleanest and most advanced diesel" cars that reduced
nitrogen oxide emissions by 90 percent.

On-road testing confirmed Mercedes' BlueTEC vehicles produced
average on-road NOx emissions 19 times higher than the U.S.
standard, with some instantaneous readings as high as 65 times more
than the limit, a fact that Mercedes and Bosch concealed from the
public, according to the complaint.

Duty to disclose
In his opinion, Chief District Judge Jose Linares noted the
defendants had a duty to disclose the defeat device, saying
disclosure would be reasonably expected, "where the nondisclosure
of those facts amounts to taking advantage of the plaintiffs
ignorance, such that it would be 'shocking to the ethical sense of
the community, and [would be] so extreme and unfair, as to amount
to a form of swindling'. . . It is this Court's opinion that
Mercedes' and Bosch's active concealment of the existence of the
defeat device amounts to such a situation."

The court found that "plaintiffs have plausibly pled that the
products received did not live up to the claims made by
Defendants." The ruling found plaintiffs properly pleaded that
those who bought BlueTEC vehicles overpaid for them based on the
concealed defeat device.

The lawsuit against Mercedes was originally filed Feb. 25, 2016, in
U.S. District Court in New Jersey by law firm Hagens Berman, which
worked to win the $14.7 billion Volkswagen emissions litigation
settlement.

"We are incredibly pleased with the court's ruling in our
emissions-cheating case against Mercedes and Bosch that has allowed
most of plaintiffs' claims to continue forward on behalf of all
BlueTEC owners," Steve Berman, managing partner of Hagens Berman
and attorney representing vehicle owners in the class action, said
in a statement. "We ... look forward to continuing to prove our
case of emissions-cheating."

Bosch settlements
In January, Bosch agreed to pay around $131 million to settle
claims by Fiat Chrysler Automobiles U.S. diesel owners and resolve
all investigations by 47 state attorneys general into its
involvement with alleged emissions cheating on FCA's diesel
vehicles.

Bosch and its U.S. unit must pay $98.7 million to 47 states, the
District of Columbia, Puerto Rico and Guam, and $27.5 million to
104,000 Fiat Chrysler diesel owners. It also must pay $5 million to
a state attorneys general group.

Bosch said in a statement that it neither accepts liability nor
admits to any allegations but agreed to the settlement with the
states to avoid "lengthy and costly proceedings."

The supplier "enabled" the cheating and should have known its
customers would use the software improperly, the attorneys general
charged.

Bosch also was implicated in Volkswagen's diesel cheating scandal.
The company agreed to pay $327.5 million to U.S. diesel VW owners,
according to the documents filed in early 2017. [GN]


MERCK SHARP: Seeks Review of Decision in Rotavirus Antitrust Suit
-----------------------------------------------------------------
Defendant Merck Sharp & Dohme Corp. filed an appeal from a Court
ruling in the consolidated lawsuit entitled IN RE ROTAVIRUS
VACCINES ANTITRUST LITIGATION, Case No. 2-18-cv-01734, in the U.S.
District Court for the Eastern District of Pennsylvania.

As previously reported in the Class Action Reporter on Feb. 15,
2019, Judge J. Curtis Joyner denied Merck's motion to compel each
individual Plaintiff to arbitration and to stay these proceedings
pending arbitration.

As averred in the Consolidated Amended Class Action Complaint filed
by Sugartown Pediatrics, LLC and Schwartz Pediatrics S.C., the
lawsuit challenges Merck's anticompetitive vaccine bundling scheme
whereby Merck leverages its monopoly power in multiple pediatric
vaccine markets to maintain its monopoly power in the Rotavirus
Vaccine Market and, consequently, to charge supracompetitive prices
to purchasers of its rotavirus vaccines.

In essence, the Plaintiffs allege that as to its RotaTeq Rotavirus
vaccine, instead of lowering the price which it was charging when
it held 100% of the Rotavirus market, Merck responded to the entry
of GlaxoSmithKline's competing vaccine, Rotarix, by adding an
exclusionary RotaTeq Bundled Loyalty Condition to its buying
contracts, thereby bundling RotaTeq with its other pediatric
vaccines.  In so doing, they aver that Merck penalized any of its
customers who would buy Rotarix from GSK by forcing them to pay
substantially higher prices for all of the vaccines in the Merck
Bundle, including those for which Merck is the sole seller.

The Plaintiffs allege that they suffered anti-trust injury because
they, like most physicians, practices and hospitals, purchase the
vaccines which they administer to their patients through Physician
Buying Groups ("PBGs") and Merck has effectively co-opted the PBGs
to impose and enforce its anticompetitive and exclusionary conduct
with the result that they and the proposed class members have
repeatedly paid artificially inflated prices for rotavirus vaccines
since Rotarix entered the market and continuing through the
present.

The appellate case is captioned as IN RE ROTAVIRUS VACCINES
ANTITRUST LITIGATION, Case No. 19-1405, in the United States Court
of Appeals for the Third Circuit.[BN]

Plaintiff-Appellee SUGARTOWN PEDIATRICS LLC is represented by:

          Zachary D. Caplan, Esq.
          BERGER MONTAGUE PC
          1818 Market Street, Suite 3600
          Philadelphia, PA 19103
          Telephone: (215) 875-5801
          E-mail: zcaplan@bm.net

               - and -

          Bart D. Cohen, Esq.
          Linda P. Nussbaum, Esq.
          NUSSBAUM LAW GROUP PC
          570 Lexington Avenue, 19th Floor
          New York, NY 10022
          Telephone: (212) 702-7054
          E-mail: bcohen@nussbaumpc.com
                  lnussbaum@nussbaumpc.com

               - and -

          Brent W. Landau, Esq.
          HAUSFELD LLP
          325 Chestnut, Suite 900
          Philadelphia, PA 19106
          Telephone: (215) 985-3273
          E-mail: blandau@hausfeld.com

Plaintiffs-Appellees SUGARTOWN PEDIATRICS LLC, SCHWARTZ PEDIATRICS
SC and MARGIOTTI & KROLL PEDIATRICS PC, individually and on behalf
of all others similarly situated, are represented by:

          Daniel J. Walker, Esq.
          BERGER MONTAGUE PC
          2001 Pennsylvania Avenue NW, Suite 300
          Washington, DC 20006
          Telephone: (202) 559-9745
          E-mail: dwalker@bm.net

               - and -

          Eric L. Cramer, Esq.
          BERGER MONTAGUE PC
          1818 Market Street, Suite 3600
          Philadelphia, PA 19103
          Telephone: (215) 875-5801
          E-mail: zcaplan@bm.net
                  ecramer@bm.net

Plaintiff-Appellee SCHWARTZ PEDIATRICS SC is represented by:

          Gary L. Azorsky, Esq.
          COHEN MILSTEIN SELLERS & TOLL PLLC
          1717 Arch Street
          3 Logan Square, Suite 3610
          Philadelphia, PA 19103
          Telephone: (267) 479-5700
          E-mail: gazorsky@cohenmilstein.com

               - and -

          Daniel H. Silverman, Esq.
          Daniel A. Small, Esq.
          COHEN MILSTEIN SELLERS & TOLL PLLC
          1100 New York Avenue, N.W.
          West Tower, Suite 500
          Washington, DC 20005
          Telephone: (202) 408-4600
          E-mail: dsilverman@cohenmilstein.com
                  dsmall@cohenmilstein.com

Plaintiff-Appellee MARGIOTTI & KROLL PEDIATRICS PC, individually
and on behalf of all others similarly situated, is represented by:

          Marc Edelson, Esq.
          EDELSON & ASSOCIATES, LLC
          3 Terry Drive
          Newtown, PA 18940
          Telephone: (215) 867-2399
          E-mail: medelson@edelson-law.com

               - and -

          Joshua H. Grabar, Esq.
          BOLOGNESE & ASSOCIATES
          1500 John F. Kennedy Boulevard
          Suite 320, Two Penn Center Plaza
          Philadelphia, PA 19102
          Telephone: (215) 814-6750
          E-mail: jgrabar@bolognese-law.com

Defendant-Appellant MERCK SHARP & DOHME CORP is represented by:

          Ashley E. Bass, Esq.
          Andrew D. Lazerow, Esq.
          COVINGTON & BURLING LLP
          850 10th Street, N.W.
          One City Center
          Washington, DC 20001
          Telephone: (202) 662-5109
          E-mail: abass@cov.com
                  alazerow@cov.com

               - and -

          Lisa C. Dykstra, Esq.
          MORGAN LEWIS & BOCKIUS LLP
          1701 Market Street
          Philadelphia, PA 19103
          Telephone: (215) 963-5699
          E-mail: lisa.dykstra@morganlewis.com


METROPOLITAN LIFE: Court Refuses to Remand T. Pugh's UCL Suit
-------------------------------------------------------------
The United States District Court for the Northern District of
California issued an Order denying Plaintiffs' Motion to Remand in
the case captioned TILLMAN PUGH, ET AL., Plaintiffs, v.
METROPOLITAN LIFE INSURANCE COMPANY, ET AL., Defendants. Case No.
18-cv-01506-YGR. (N.D. Cal.).

Plaintiffs Tillman Pugh, Margaret Sulkowski, and David Henderson
bring this putative class-action lawsuit against defendants
Metropolitan Life Insurance Company and Metlife Resources, Inc., a
unit of Metropolitan Life Insurance Company (MLIC) for failure to
reimburse expenses and/or prohibited case bond (Count I) prohibited
wage chargebacks (Count II) unlawful failure to provide itemized
wage statements (Count III) unlawful failure to pay wages on
termination (Count IV) unlawful underpayment of wages (Count V) and
unlawful untimely payment of wages (Count VI) in violation of the
California Labor Code and the Private Attorneys General Act (PAGA)
(Count VII), as well as unfair business practices (Count VIII) in
violation of the California Unfair Competition Law (UCL).

The Plaintiffs allege that MLIC improperly treats plaintiffs and
putative class members, who have all worked for defendants as
financial service representatives (FSRs), as statutory employees or
independent contractors and therefore elected not to pay proper
wages and/or penalty wages to FSRs, by, among other things, making
improper deductions from their wages and by failing to reimburse
them for expenses they incurred on MLIC's behalf.  

The Defendants removed the case to this Court on March 3, 2018.  

Under CAFA, federal district courts have jurisdiction over class
actions where the amount in controversy exceeds $5 million, there
are more than 100 putative class members, and any member of a class
of plaintiffs is a citizen of a state different from any defendant.
Plaintiffs aver that the amount in controversy is not, as
defendants represent in their notice of removal, over
$9,000,85.025, but falls well below the jurisdictional threshold of
$5,000,000, and, indeed, could be as little as $3,323,632.84.

As in the present case, where the complaint does not specify the
amount of damages sought, the removing defendant must prove by a
preponderance of the evidence that the amount in controversy
requirement has been met.

The Defendants do not point to, and the Court cannot find, binding
authority for treating releases as potential defenses for the
purposes of evaluating amounts in controversy in determining
jurisdiction. However, a number of district courts and at least one
circuit have so concluded.  

The Plaintiffs argue that this case differs from the those
presented in Geographic Expeditions, Geographic Expeditions, 599
F.3d at 1108, Pagel, 2013 WL 12166177, at * 6 (C.D. Cal. July 9,
2013), Campos, and Lara where the potential defense had not yet
been adjudicated, because here, the Johnson settlement has been
completely adjudicated and a final judgment was filed in March
2015, binding all parties. In so arguing, plaintiffs attempt to
transform the settlement and resulting releases from a defense into
an uncontested prior event, pre-dating the commencement of the
present action.

The Plaintiffs' argument ignores the fact that the Central
District's approval of the Johnson settlement does not, and cannot,
impact whether the resulting releases implicate plaintiffs' claims
in the instant action because, as plaintiffs point out, the Johnson
case was completely adjudicated in March 2015, well before
plaintiffs filed the instant action. Therefore, in order to
determine how and to what extent the Johnson settlement would
impact the amount in controversy in this action, the Court would
still need to engage in the very sort of evaluation against which
the Ninth Circuit cautioned in Geographic Expeditions and would
essentially have to decide the merits of the case before it could
determine if it had subject matter jurisdiction.  Defendants
themselves content that the classes are potentially different, and
thus, the effect of the settlement not easily determined.  

Accordingly, the Court denies the plaintiffs' motion to remand.

A full-text copy of the District Court's February 7, 2019 Order is
available at  https://tinyurl.com/y6xm2z4d from Leagle.com.

Tillman Pugh, Margaret Sulkowski & David Henderson, Plaintiffs,
represented by Betsy Carol Manifold -- manifold@whafh.com -- Wolf
Haldenstein Adler Freeman & Herz, Jerry K. Cimmet -- cimlaw@me.com
-- Jerry K. Cimmet, Attorney at Law, John M. Kelson --
kelsonlaw@sbcglobal.net -- The Law Offices of John M. Kelson &
Marisa C. Livesay -- livesay@whafh.com -- Wolf Haldenstein Adler
Freeman & Herz LLP.

Metropolitan Life Insurance Company & Metlife Resources, Inc., a
unit of Metropolitan Life Insurance Company, Defendants,
represented by Carrie Anne Gonell -- carrie.gonell@morganlewis.com
-- Morgan Lewis & Bockius LLP.


MLK EXPRESS: Court Denies Dismissal of Drivers' FLSA Suit
---------------------------------------------------------
The United States District Court for the Middle District of
Florida, Fort Myers Division, issued an Opinion and Order denying
Defendants' Motion to Dismiss in the case captioned GREGORY GIBBS
and TATONYA HUGGINS, on behalf of himself and those similarly
situated Plaintiffs, v. MLK EXPRESS SERVICES, LLC, AMAZON
LOGISTICS, INC., AMAZON.COM SERVICES, INC., MANIHONG M. PHANOUVONG,
LILA V. PHANOUVONG, AMAZON.COM, INC. and AG PLUS EXPRESS, LLC,
Defendants. Case No. 2:18-cv-434-FtM-38MRM. (M.D. Fla.).

This is a Fair Labor Standards Act (FLSA) collective action. Gibbs
and Huggins sued Defendants for failure to pay minimum and overtime
wages. The Defendants were links in a package distribution chain
headed by Amazon.com, Inc., the parent corporation of Amazon.com
Services, Inc. and Amazon Logistics, Inc. The Plaintiffs were two
drivers recruited and hired by MLK Express and AG Plus to deliver
Amazon packages and unload Amazon trucks.  

The Defendants argue that the Amended Complaint is a shotgun
pleading, fails to state an FLSA claim, and fails to state a
collective action.  

Shotgun Pleading

AG Plus argues the Amended Complaint is an impermissible shotgun
pleading; Plaintiffs say not so.  

The Amended Complaint spans 26 pages, identifies 7 Defendants,
contains 4 claims, and compromises 162 allegations. (Doc. 35).
Plaintiffs incorporate the first 138 allegations into each claim.
This includes factual background, legal conclusions, class
definitions, and collective action allegations. Although the
Amended Complaint is by no means a perfect pleading, it does not
fall into one of the four rough shotgun pleading categories
identified by the Eleventh Circuit.  And it does give AG Plus and
the other Defendants fair notice of the grounds on which
Plaintiffs' claims rest.

For that reason, the Amended Complaint is not a shotgun pleading.

Failure to State an FLSA Claim

To state a claim for unpaid wages, a plaintiff must show (1) an
employment relationship (2) the employer engaged in interstate
commerce and (3) the employee worked over forty hours per week but
was not paid minimum or overtime wage.  

The parties take conflicting positions on the level of detail
required to plead an FLSA claim. The parties do not dispute that
the Iqbal-Twombly plausibility standard applies. Instead, the
dispute arises from a recent unpublished Eleventh Circuit opinion.
In Cooley, Cooley v. HMR of Ala., Inc., 18-10657, 2018 WL 4232041
(11th Cir. Sept. 6, 2018), the Eleventh Circuit considered a
district court order dismissing plaintiffs' FLSA overtime claims
for failure to adequately identify the type of compensable work
performed during breaks.

In its review, the Eleventh Circuit noted that the district court,
in a previous order on a motion to dismiss, required each employee
to allege at least one work week where they worked more than 40
hours and the type of compensable work they performed during meal
periods. The Cooley court ultimately determined that plaintiffs
pled FLSA claims because they sufficiently described their lunch
time work.  

Relying on Cooley, Defendants argue that Plaintiffs' failure to
identify a single, specific week that they worked over forty hours
is fatal to their claim. The Court is unconvinced that Cooley
requires such an allegation. The issue before the Cooley court was
whether the district court erred by dismissing the complaint for
failing to adequately identify the type of compensable work
performed during breaks. It was not whether a plaintiff must
identify a single week where she worked over forty hours. Cooley
makes no such proclamation. That does not mean that Plaintiffs may
rely on conclusory allegations. Here, Gibbs and Huggins allege the
exact months they worked and that they commonly worked between
forty-two to sixty-five hours per week or between forty-five to
sixty-five hours per week, respectively. And they were not paid
either overtime or minimum wage. This is enough.

Plaintiffs allege that Phanouvongs are co-owners of MLK Express.
The Phanouvongs decided on work, staffing, personnel matters, pay
policies, and compensation issues. The Phanouvongs also exercised
their authority to hire or fire, manage payroll, and dictate
Plaintiffs' driving schedule.

This is enough to establish employer liability.

Failure to Plead a Collective Action

The FLSA authorizes collective actions against employers who
violate the FLSA. Here, Defendants argue that Plaintiffs failed to
plead a claim for collective action treatment because Plaintiffs
have not established similarly situated employees nationwide.
Amazon also argues that Plaintiffs failed to establish them as a
joint employer for the Amazon Local Driver Class. Plaintiffs argue
that this determination is premature, and even if it is not, they
have pled a collective action.

As stated, Plaintiffs identify two classes in their collective
action. The Amazon Local Driver Class that consists of local
delivery drivers or driver associates that were paid a day rate and
worked for any company that contracted with Amazon throughout the
United States. And the MLK Sub-Class that consists of all local
delivery drivers or driver associates that were paid a day rate and
who worked for MLK Express and AG Plus within Florida.

As to the MLK Sub-Class, the allegations are sufficient. The
delivery drivers or driver associates provided local delivery
service for Defendants. The class members were all paid day rates
that fluctuated from $100 to $150 per day depending on the day of
the week. These rates did not meet the minimum threshold
established by the FLSA. The class members shared job titles, local
delivery drivers or driver associates, and pay provisions, a day
rate. The class members also had similar job responsibilities. This
is sufficient at this stage in the proceedings.  

The Amended Complaint also states a claim as to the Amazon Local
Driver Class. The class members share the same titles, local
delivery drivers or driver associates. The class members share
similar roles, unloading Amazon packages and delivering those
packages on behalf of Amazon.  The class members were also paid a
day rate that did not meet the minimum wage or overtime
requirements.  At this stage, this is enough to show that the class
members are similarly situated.

This Court determined that Plaintiffs' collective action
allegations were sufficient under Rule 8. But this Order should not
be construed as offering an opinion, one way or another, on
Plaintiffs' chances at the notice stage of the collective action
certification.

Accordingly, it is ordered that the Defendants' motions to dismiss
are denied.

A full-text copy of the District Court's February 7, 2019 Opinion
and Order is available at https://tinyurl.com/yye4k74f from
Leagle.com.

Gregory Gibbs, on behalf of himself and those similarly situated &
Tatonya Huggins, Plaintiffs, represented by Andrew Ross Frisch,
Morgan & Morgan, PA, Chanelle Ventura, Morgan & Morgan, PA & Paul
M. Botros, Morgan & Morgan, PA.

MLK Express Services, LLC, a Florida limited liability company,
Manihong M. Phanouvong, individually, Lila V. Phanouvong,
individually & AG Plus Express, LLC, a Florida limited liability
company, Defendants, represented by Jennifer M. Fowler-Hermes --
jfowler-hermes@williamsparker.com -- Williams, Parker, Harrison,
Dietz & Getzen.

Amazon Logistics, Inc., a foreign for profit corporation &
Amazon.Com Services, Inc., a foreign for profit corporation,
Defendants, represented by Christopher K. Ramsey --
christopher.ramsey@morganlewis.com -- Morgan Lewis & Bockius LLP,
Mark E. Zelek -- mark.zelek@morganlewis.com -- Morgan, Lewis &
Bockius, LLP & Richard G. Rosenblatt --
richard.rosenblatt@morganlewis.com -- Morgan, Lewis & Bockius, LLP,
pro hac vice.

Amazon.com, Inc., a foreign for profit corporation, Defendant,
represented by Christopher K. Ramsey, Morgan Lewis & Bockius LLP,
Mark E. Zelek, Morgan, Lewis & Bockius, LLP & Richard G.
Rosenblatt, Morgan, Lewis & Bockius, LLP


MOVIEPASS: Subscribers File Bait-and-Switch Scheme Class Action
---------------------------------------------------------------
Jason Guerrasio, writing for Business Insider, reports that on Feb.
1, two MoviePass subscribers filed a class-action lawsuit alleging
they were only able to see three movies over 10 months due to
restrictions on the movie-ticket subscription app.

Lawrence Weinberger and his wife Laurie, of Sea Cliff, New York,
each subscribed to annual memberships in March 2018, costing them
both $105.35, according to the lawsuit (via Variety), with the
promise they could see "any movie" in "any theater" on "any day,"
once a day. But the suit alleges that when the Weinbergers checked
for showtimes on the app, often it said that no showtimes were
available in their area.

The suit alleges MoviePass refused to provide a prorated refund,
and that the company engaged in a "deceptive and unfair
bait-and-switch scheme."

MoviePass was not immediately available to comment to Business
Insider.

MoviePass is not the only movie-ticket subscription company to be
hit with a "bait-and-switch" lawsuit. In November, two subscribers
of MoviePass competitor Sinemia filed a suit over a $1.80
"processing fee" introduced to subscribers, even those who had
already prepaid for a yearly subscription.

"It lures consumers in by convincing them to purchase a purportedly
cheaper movie subscription, and then adds undisclosed fees that
make such purchases no bargain at all," the lawsuit against Sinemia
claimed. "Sinemia fleeces consumers with an undisclosed,
unexpected, and not-bargained-for processing fee each time a plan
subscriber goes to the movies using Sinemia's service."

MoviePass has also faced class-actions lawsuits from its
shareholders. In August 2018, shareholders in two lawsuits claimed
MoviePass' parent company, Helios and Matheson Analytics, misstated
its finances in press releases when it said MoviePass was a
"sustainable" business model.

This new suit comes as MoviePass attempts to regain public trust,
following last year when, according to a study done in January, 58%
of MoviePass users canceled their subscriptions. [GN]


NEW YORK CITY: Court Grants Dismissal of NYCHA Suit
---------------------------------------------------
The Supreme Court, New York County issued a Memorandum Decision
granting Defendant’s Motion to Dismiss in the case captioned
A'SEELAH DIAMOND and RUTH BRITT, on behalf of themselves and a
class of those similarly situated, Plaintiffs, v. THE NEW YORK CITY
HOUSING AUTHORITY and OYESHOLA OLATOYE, in her official capacity as
Chairperson of the New York City Housing Authority, Defendants.
Docket No. 153312/18, Motion seq. No. 003. (N.Y. Sup.)

Defendants New York City Housing Authority (NYCHA), and its former
chairperson, Oyeshola Olatoye (collectively, Defendants), move to
dismiss the complaint, pursuant to both federal law and CPLR
Section 3211, or in the alternative to transfer the matter pursuant
to CPLR § 325(d) to the Civil Court of the City of New York,
Housing Part.

This putative class action proceeding concerns basic human rights.
Plaintiffs A'seelah Diamond and Ruth Britt, on behalf of themselves
and a class similarly situated (collectively, Plaintiffs) seek both
a declaratory judgment that NYCHA has breached the warranty of
habitability, and a preliminary injunction ordering NYCHA to
provide adequate heat and hot water services moving forward.  

INJUNCTIVE RELIEF

The Plaintiffs seek a preliminary injunction directing Defendants
to devise and implement a 90-day plan for addressing NYCHA's
pervasive and persistent heat and hot water outages and a permanent
injunction ordering Defendants to provide Plaintiffs and all other
NYCHA tenants with heat and hot water consistent with NYCHA's
obligations under New York law.

The Defendants make two arguments as to the Plaintiffs' application
for injunctive relief: that the action is preempted by federal law
and that Plaintiffs do not have standing to seek such relief, as
there is no private right of action on which they could seek
injunctive relief from NYCHA.

Preemption

Preemption analysis is tiered. The first tier is for areas where
Congress expressly preempts. The next tier is where intent to
preempt can be inferred from a framework of regulation that leaves
no room for States to supplement it. In other words, the
legislation is so comprehensive in its scope that Congress wished
to occupy the field. The third tier of preemption does not refer to
Congress's intent or whether it has occupied an entire field, but
instead focuses on whether there is an actual conflict or when
state law stands as an obstacle to the accomplishment and execution
of the full purposes and objectives of federal law.

Here, HUD entered into the administrative agreement pursuant to its
responsibility, under the United States Housing Act of 1937
(Housing Act), to administerlow income housing programs, such as
NYCHA, that receive federal assistance. The administrative
agreement found that NYCHA's various failures to provide safe and
adequate housing constituted a default of its obligations under the
Housing Act. Thus, HUD invoked its remedial powers under 42 USC
Section 1437d (j) (3) (A) (v) and determined that the terms of this
Agreement constitute an an arrangement acceptable to the Secretary
and in the best interests of the public housing residents for
managing all, or part, of the public housing administered by
NYCHA.

Second, the administrative agreement gives the monitor broad
discretion to design the means of remediating defaults under
federal law, such as deficiencies in NYCHA's provision of heat and
hot water. Thus, given the specificity and the breadth of the
injunctive relief sought by Plaintiffs, the Court, by granting such
relief, would effectively arrogate power delegated to the monitor
for itself. Accordingly, Plaintiffs' application for injunctive
relief must be dismissed, as such relief is preempted by the
administrative agreement.

Standing

The Defendants also argue that the Plaintiffs' application for
injunctive relief should be dismissed as Plaintiffs do not have
standing to ask for such relief. In support, Defendants cite to
Delgado v New York City Hous. Auth. (66 A.D.3d 607 [1st Dept
2009]). In Delgado, NYCHA residents sought to compel NYCHA to
comply with apartment painting regulations under the Housing
Maintenance Code.

The First Department held that compliance with a housing code is
not an unambiguously confirmed right secured by the force of
federal law or the United States Constitution, and the United
States Housing Act of 1937 (42 USC) Section 1437d (1) (3) (i.e.,
the Public Health and Welfare Act), which obligates public housing
authorities to maintain projects in a decent, safe, and sanitary
condition, does not create a right enforceable under Section 1983
to proper maintenance of the housing project.

Here, while there is no private right of action pursuant to federal
law, the statute under the Public Health and Welfare Act cited in
the federal action against NYCHA does afford HUD a statutory basis
to seek injunctive relief to enforce housing code compliance. Thus,
federal law in the form of the Public Health and Welfare Act
authorizes a government entity such as HUD to seek injunctive
relief to enforce compliance with its rules and regulations, but no
equivalent private right of action is recognized for individuals
such as Plaintiffs. Plaintiffs base their claim for injunctive
relief in this action on New York State law, which, they assert,
does authorize them to seek injunctive relief to enforce NYCHA's
obligations.

However, the Plaintiffs fail to point to any specific law
authorizing a private right of action, or to any caselaw which
would provide for an exception to Delgado. Thus, Delgado's holding
that, as a general matter, New York City housing code does not
confer a private right of action is determinative. Without such a
private right of action, Plaintiffs, under Delgado, do not have
standing to seek the injunctive relief sought. As it is both
preempted by federal law and precluded by a lack of standing,
Plaintiffs' application for injunctive relief must be dismissed.

INDIVIDUAL DAMAGES

The Court now turns to Defendants' motion to dismiss Diamond's and
Britt's own individual monetary damages claims. Defendants
initially argue that Diamond's claim should be dismissed for lack
of standing, as she is in arrears on her rent payments to NYCHA. In
support of this argument, Defendants cite Young v GSL Enters. for
the proposition that a tenant who has not paid rent lacks standing
to commence an action for damages based on a breach of the warranty
of habitability (237 A.D.2d 119 [1st Dept 1997).

The Plaintiffs do not deny that Diamond is in arrears but insist
that she nevertheless has standing to assert her monetary damages
claim, and object to Defendants' interpretation of Young. As Young
does not address the issue of standing, the Court declines to reach
the Defendants standing argument as to Plaintiffs' claim for
monetary damages.

Defendants also argue that Housing Court is the proper forum to
adjudicate Plaintiffs claim for monetary damages for breach of the
warrant of habitability. Plaintiffs argue that: (1) they are not
currently parties to any pending litigation in Housing Court; (2)
Housing Court does not have jurisdiction over equitable claims for
injunctive and/or declaratory relief, nor is it allowed to award
consequential or punitive damages; and (3) warranty of habitability
issues can only be raised in Housing Court as defenses to
non-payment of rent claims.

The first contention is irrelevant as no statute requires that
prior litigation be pending in another court as a prerequisite to
this Court dismissing a claim without prejudice. The second
contention is moot as the Court has already dismissed Plaintiffs'
equitable claims pursuant to the Supremacy Clause. As to the third,
Plaintiffs are correct that they may only raise a warranty of
habitability claim defensively in Housing Court. However,
Plaintiffs may file a breach of contract action in Civil Court,
rather than waiting to be hailed into Housing Court.

It is therefore apparent that New York State law affords Diamond
and Britt the right to pursue their breach of warranty claims as
plaintiffs in Civil Court rather than obliging them to act as
respondents in Housing Court.  

Accordingly, the Defendants' motion to dismiss the Complaint is
granted.

A full-text copy of the Supreme Court’s February 7, 2019
Memorandum Decision is available at https://tinyurl.com/y622kojo
from Leagle.com.


NEW YORK: Breastmilk-Pumping Police Officers File Class Action
--------------------------------------------------------------
Jason Grant, writing for New York Journal, reports that five New
York City police officers have lodged a civil rights-based
class-action EEOC charge against the New York City Police
Department alleging that it has discriminated against them by
refusing to give them proper break time and legally required safe
and clean spaces for expressing breast milk.

The detailed, 26-page charge, filed with the EEOC, is a precursor
that will lead to a federal class action being launched by the
officers later this year, according to their attorney, Eric
Sanders, unless the city settles the action during the EEOC stage.
Mr. Sanders believes the charge represents the first class-action
claim brought against the NYPD for alleged discrimination against
nursing mothers.

The City of New York, which is named as a defendant, along with
Mayor Bill de Blasio, Police Commissioner James O'Neill and other
current and past officials, responded to the EEOC charge on Feb. 4
with a detailed statement that did not outright deny the claims but
instead explained that a new breast milk-pumping policy had been
created by the department in 2018.

"The NYPD is committed to providing its employees with appropriate
accommodations to express breast milk privately, comfortably, and
in close proximity to work. The new policy was developed in 2018,"
the statement, provided by an NYPD spokesperson, read.

It continued, "All new precincts being built will have a private
room for employees to express breast milk. With respect to existing
precincts . . . there must be a private room or an office
identified that is not a bathroom, and which can provide an
employee with the requisite privacy for them to be able to express
breast milk. Furthermore, the NYPD is currently exploring
additional locations at 1PP [One Police Plaza headquarters] for
employees to express breast milk."

The EEOC charge carves out a class of female NYPD employees who are
nursing. It seeks enjoinment of further discrimination, changes in
NYPD policy related to accommodating breastfeeding mothers and both
compensatory and emotional distress damages.

The five officers, some of whom work street assignments and some
administrative assignments -- and all of whom are nursing or have
nursed their children while on the job -- allege that the
department, from 2007 on, has "engaged in a pattern, practice and
policy of failing and refusing to provide nursing mothers with
reasonable break times and a proper location to express milk."

In addressing and setting up their claims, the five officers argue,
via Mr. Sanders, that lactation is a pregnancy-related medical
condition, and less favorable treatment of a lactating employee may
raise an inference of unlawful discrimination.

It adds that the officers, Simone Teagle, Theresa Mahon, Melissa
Soto-Germosen, Viviana Ayende and Elizabeth Ortiz, are due under
the law "the same freedom to address such lactation-related needs
that [employees] would have to address other similarly limiting
medical conditions."

The officers further claim that "because only women lactate, a
practice that singles out lactation or breastfeeding for less
favorable treatment affects only women and therefore is facially
sex-based."

The EEOC filing alleges discrimination has occurred under the
Pregnancy Discrimination Act of Title VII of the Civil Rights Act
of 1964, the state Human Rights Law and the city Human Rights Law.

In an October interview with the Law Journal about one officer
alleging discrimination, Mr. Sanders said, "This is a citywide
problem. No police department facility has complied with the law."

He added, "Just because you have someone who works for the police
department, they don't lose their constitutional rights."

Simone Teagle, one of the five officers, in a notice of claim filed
with the city Comptroller's Office in October claimed that the
police department had failed to give her proper break time to pump
breast milk while nursing, pressured her when she took the legally
protected breaks and ultimately transferred her out of her precinct
in September 2018 in retaliation for expressing breast milk on the
job.

Ms. Teagle's problems allegedly started after she returned to work
in January 2018 from maternity leave. As she began to take needed
breaks inside the 113th Precinct to pump milk for an infant son,
she began feeling ostracized by some fellow officers and superiors,
she claimed. She also alleged she experienced backlash.

"They would look at me and roll their eyes. Or cut their eyes at me
like, 'Oh boy, here we go again,'" she told the New York Post last
fall. "Sometimes they wouldn't even acknowledge me."

She and Mr. Sanders also said she was relegated to unsanitary
spaces to pump the milk, such as a basement locker room inside the
Jamaica, Queens, station house. Other unclean and often non-private
areas she used were the women's bathroom, her car and a department
vehicle.

The locker room, she told the Post, had "trash on the floor, mold
on the walls, old newspapers" lying around and was "just
horrible."

Moreover, the same locker room recently had a sign posted in it
warning of potential asbestos problems, Sanders said last fall.

Yet, as the notice of legal claim stated, under the Affordable Care
Act employers are required to provide "a place, other than a
bathroom, that is shielded from view and free from intrusion from
coworkers and the public, which may be used by an employee to
express breast milk."

By August, Ms. Teagle's situation at the precinct house worsened,
she told the Post. A supervisor demanded that she start listing her
pump breaks in a place where everyone could see the list. And soon,
she said, she started asking for fewer breaks than she needed. "I
didn't want to deal with the faces and the nastiness," she told the
Post.

In turn, according to Ms. Teagle and Mr. Sanders, she developed
mastitis because she wasn't pumping breast milk as much as she
needed to. The condition is a painful breast-tissue inflammation
that can involve severe swelling and infection.

Then in September 2018, Ms. Teagle, was "retaliated against," when
the police department transferred her to a new enforcement unit
located in a different building, Sanders said.

He added, though, that "the place she's been transferred to—they
still don't have the proper facilities," and once again she is
pumping in the bathroom, her parked car or another vehicle. [GN]


NEWYORKCITY: Garey Alleges Violation under Disabilities Act
-----------------------------------------------------------
Newyorkcity.com, Inc., is facing a class action lawsuit filed
pursuant to the Americans with Disabilities Act. The case is styled
Kevin Garey, on behalf of himself and all others similarly
situated, Plaintiff v. Newyorkcity.com, Inc, Defendant, Case No.
1:19-cv-01919 (S.D. N.Y., February 28, 2019).

Newyorkcity.com, Inc., is the official website of the City of New
York.[BN]

The Plaintiff is represented by:

   Jonathan Shalom, Esq.
   Shalom Law, PLLC.
   124-04 Metropolitan Avenue
   Kew Gardens, NY 11374
   Tel: (516) 807-1748
   Email: jshalom@jonathanshalomlaw.com



NOVA SCOTIA: Class Action Over Schools for Deaf Abuses Okayed
-------------------------------------------------------------
Nancy King, writing for Cape Breton Post, reports that the lawyer
behind a recently certified class-action lawsuit alleging systemic
sexual, physical and mental abuse against children who attended
schools for deaf children in Nova Scotia says there are current and
former Cape Breton residents among those who have come forward with
claims.

The Nova Scotia Supreme Court granted approval of the class action
related to children who attended the School for the Deaf in Halifax
and the Interprovincial School for the Education of the Deaf in
Amherst, which was later named the Atlantic Provinces Special
Education Authority -- Resource Centre for the Hearing
Handicapped.

To be certified, the lawsuit had to meet criteria under the
province's Class Proceedings Act, including that there be a cause
of action, an identifiable class to serve as a representative party
raising a common issue, and they must present a workable method of
advancing the class proceeding.

"The reason that the judge has to be satisfied is because there are
people that it will impact that are not before the court, and we
call them absent class members, and so we have to make sure that
the interests of the overall class are being protected," lawyer Ray
Wagner said.

The two defendants -- the Attorney General of Nova Scotia and
Atlantic Provinces Special Education Authority (APSEA) -- initially
contested certification, Mr. Wagner said, but they subsequently
agreed to make some changes to clarify issues that wouldn't affect
the class members.

"With that concession from us they agreed to consent to it," he
said.

While the defendants consented to certification, the action still
required the approval of the Nova Scotia Supreme Court, which was
obtained on Jan. 31 from Justice Patrick Duncan.

Almost 30 members of the class -- which consists of all students
who attended or resided at the two schools during the period of
1913 to 1995 -- attended the court hearing in Halifax, with a sign
language interpreter on hand.

There are current and former Cape Bretoners among the more than 235
former students who have come forward alleging abuse to date,
although Mr. Wagner did not have a ballpark figure immediately
available.

Richard Martell and Michael Perrier are the proposed representative
plaintiffs, meaning they have been approved to act as
representatives of the class.

Mr. Wagner said Messrs. Martell and Perrier have taken a lot of the
responsibility of communicating to the deaf community about the
proceedings. Wagner's law firm also uploads to its website
explanatory videos with sign language interpretation so class
members can follow developments.

"This means a lot to us," Mr. Martell said in a news release.

"We have waited a long time for this day, and it feels good to
finally be here," Mr. Perrier said in the release. "Representation
from the deaf community in education is needed, and I hope the
class action can somehow lead to that."

The next step will be to meet with Duncan within March to set a
schedule to get the lawsuit to trial.

"It's a time when we're going to file what we're going to file for
the common issues trial, which is a focus on the fault of the
defendants, not on the claims of the individuals, that's the third
stage," Mr. Wagner said.

At the same time, he added, they will also look to resolve claims,
particularly those that are historic in nature, as older members of
the class may die, become disabled or otherwise unable to
participate. The province and APSEA haven't given any indication
whether they are interested in settling, Wagner said, noting those
discussions don't normally occur until after certification.

If the class-action is settled -- whether a settlement is agreed
upon or it goes to trial -- there will then be a period where
members of the class can submit claims. Wagner said people are most
often willing to come forward at that time, as they see it as it
being safer for them to do so.

Any member of the class wanting more information on the action can
contact Wagner's law firm by calling 902-425-7330 or toll-free at
1-800-465-8794 or by email classaction@wagners.co or
seriousinjury@wagners.co. [GN]


OPAL TOWER: Maurice Blackburn Opts Out of Representation Race
-------------------------------------------------------------
Su-Lin Tan, writing for Australian Financial Review, reports that
legal firm Maurice Blackburn has stepped away from the race to
represent Opal Tower apartment owners in a potential class action
seeking financial compensation for the tarnished apartments.

The firm did not offer a reason for the departure but Opal Tower
owners corporation chairman Shady Eskander said while the owners
group looked at the proposal by Maurice Blackburn, they were
looking for firms with specific expertise in property construction
and defects.

"The proposed class action is still well and truly under
investigation," Mr Eskander said.

"The owners group considered a representation proposal from Maurice
Blackburn, but ultimately recommended another firm with greater
experience in construction disputes."

It is understood Corrs Chambers Westgarth is still in the mix for
the job, but sources said the owners were still shopping around for
other firms.

Corrs declined to comment.

Whichever firms the Opal owners choose, they are likely to seek
compensation for a drop in the value of their Opal apartments, a
loss of rental income, repair costs associated with the build and
relocation expenses, property advisers say. Owners in the Opal
Tower face losses of more than 16 per cent, according to valuers.

Opal Tower hit global headlines after residents were evacuated on
Christmas eve following cracking noises in the tower. An
independent investigation by the NSW government in mid-January
indicated while the tower would not collapse, there were defects
caused by flaws in the design and construction of pre-cast
fabricated concrete beams.

The tower's engineer, WSP, has since been working with independent
engineers Cardno, hired by the owners, and Rincovich, which reports
to builder Icon, to undertake remediation works. Cardno has been
progressively providing clearances on units which can be
reoccupied.

Ninety-seven out of 392 units in the tower are now safe to move
into, while Icon will continue to pay for accommodation of
residents whose apartments have not yet been given clearance, at
least until February 9.

Owners will face a tall order with a class action whichever firm
they choose, lawyer and class action specialist Bailey Compton
said.

Mr Compton said questions need to be asked about the liability of
all parties involved in the development of Opal, including the
state government agency that supported the development, Sydney
Olympic Park Authority.

Lawyers will need to look at, among many things, the approval
process, construction certificates and the adherence to these
certificates, ultimately trying to ascertain if a duty of care had
been breached, he said. [GN]


PHOENIX FINANCIAL: Oswald-Green Asserts Breach of FDCPA
-------------------------------------------------------
A class action lawsuit has been filed against Phoenix Financial
Services LLC.  The case is styled as Alexandra Oswald-Green,
individually, on behalf of herself and all other similarly situated
consumers, Plaintiff v. Phoenix Financial Services LLC and John
Does 1-25, Defendants, Case No. 3:19-cv-07337 (D. N.Y., February
28, 2019).

The docket of the case states the nature of suit as Consumer Credit
filed pursuant to the Fair Debt Collection Practices Act.

Phoenix Financial Services, LLC, offers investment banking and
financial advisory services to public and private growth companies
and middle market corporations. The firm provides debt
restructuring, mezzanine financing, corporate transitions, merger
and acquisitions, leverage buy-out, divesture, strategic
consulting, and valuation advisory services. Phoenix Financial
Services, LLC is headquartered in Providence, Rhode Island.[BN]

The Plaintiff is represented by:

   Yaakov Saks, Esq.
   Stein Saks, PLLC
   285 Passaic Street
   Hackensack, NJ 07601
   Tel: (201) 282-6500 ext 101
   Fax: (201) 282-6501
   Email: ysaks@steinsakslegal.com


POPSUGAR INC: Court Denies Dismissal of Infringement Suit
---------------------------------------------------------
The United States District Court for the Northern District of
California issued an Order denying Defendant’s Motion to Dismiss
in the case captioned NITA BATRA, et al., Plaintiffs, v. POPSUGAR,
INC., Defendant. Case No. 18-cv-03752-HSG. (N.D. Cal.).

Plaintiff Nita Batra filed suit against Defendant POPSUGAR Inc.
(POPSUGAR), alleging that POPSUGAR: (1) removed and/or altered her
copyright management information (CMI) in violation of Section
1202(b) of the Digital Media Copyright Act (DMCA) (2) infringed
Plaintiff's copyright in her photographs (3) misappropriated
Plaintiff's likeness and infringed her right of publicity (4)
intentionally interfered with Plaintiff's contractual relationship
(5) made a false or misleading representation in violation of the
Lanham Act and (6) violated the California Unfair Competition Law
(UCL). The complaint alleges that POPSUGAR copied thousands of
influencers' Instagram images, removed the links in the original
pages that allowed the influencers to monetize their following, and
reposted the images on its own website without authorization with
links that allowed POPSUGAR to profit when users clicked through
and purchased items.  

DMCA Claim

The Plaintiff's first cause of action alleges that Defendant
violated 17 U.S.C. section 1202(b), which reads in relevant part:
"No person shall, without the authority of the copyright owner or
the law (1) intentionally remove or alter any copyright management
information knowing, or, with respect to civil remedies under
section 1203, having reasonable grounds to know, that it will
induce, enable, facilitate, or conceal an infringement of any right
under this title."

Defendant contends that Plaintiff's DMCA claim fails because (1)
Plaintiff fails to plead that POPSUGAR possessed the requisite
mental state to violate Section 1202(b) and (2) Plaintiff does not
identify the removed CMI.  

Plaintiff has sufficiently alleged a violation of section 1202(b).
The Instagram sidebar is alleged to include identifying information
about Plaintiff that plausibly constitutes CMI under section
1202(c). And the plausible inference from Plaintiff's allegations
is that PopSugar removed the CMI from Plaintiff's Instagram posts
knowing that removing the CMI would help to conceal the alleged
infringement of Plaintiff's images.

The Court therefore denies the Defendant's motion to dismiss the
Plaintiff's DMCA claim.

Lanham Act Claim

The Plaintiff's second cause of action invokes the Lanham Act,
which reads in relevant part:
Any person who, on or in connection with any goods or services, or
any container for goods, uses in commerce any word, term, name,
symbol, or device, or any combination thereof, or any false
designation of origin, false or misleading description of fact, or
false or misleading representation of fact, which (A) is likely to
cause confusion, or to cause mistake, or to deceive as to the
affiliation, connection, or association of such person with another
person, or as to the origin, sponsorship, or approval of his or her
goods, services, or commercial activities by another person.

The Defendant contends that the Plaintiff has failed to state a
Lanham Act claim because Plaintiff's claim does not allege a
misleading representation as to the end products sold to the
consumer.  

The Plaintiff alleges that the Defendant's use of the Plaintiff's
and Class members' name falsely implies that Plaintiff and class
members sponsor, endorse, or are affiliated with Defendant's goods
and services and is likely to cause consumer confusion, and
therefore constitutes false advertising and unfair competition.

Here, Plaintiff alleges that both Plaintiff and POPSUGAR provide an
online platform for users to shop for fashion and accessories
through other affiliated platforms, by posting shoppable images of
influencers and products. Plaintiff has alleged a likelihood of
consumer confusion regarding Defendant's service of providing these
shoppable images. This is the relevant likelihood of confusion
under Plaintiff's theory, as opposed to confusion regarding the
source of the featured goods that a user might or might not
actually purchase. The false impression alleged in the complaint is
that Plaintiff endorses or is affiliated with Defendant's service,
not that Plaintiff falsely endorses the products themselves. Based
on the facts as alleged, Defendant's conduct is misleading in a way
likely to cause confusion as to the sponsorship, or approval of his
or her goods, services, or commercial activities by another
person.

This is sufficient to state a Lanham Act claim, and the Court
therefore DENIES the motion to dismiss that claim.

Copyright Act Preemption

Defendant contends that Plaintiff's right of publicity, contract
interference, and UCL claims are preempted by the Copyright Act.
The Copyright Act's preemption provision states, in relevant part:

On and after January 1, 1978, all legal or equitable rights that
are equivalent to any of the exclusive rights within the general
scope of copyright as specified by section 106 in works of
authorship that are fixed in a tangible medium of expression and
come within the subject matter of copyright as specified by
sections 102 and 103, whether created before or after that date and
whether published or unpublished, are governed exclusively by this
title. Thereafter, no person is entitled to any such right or
equivalent right in any such work under the common law or statutes
of any State.

Defendants must first establish that the allegedly misappropriated
information comes within the subject matter of copyright as
specified by sections 102 and 103. The information does not
necessarily have to be actually protected by a specific copyright
or even itself be copyrightable; it just has to be `within the
subject matter' of the Act.

Defendants contend that, because Plaintiff alleges copyright
infringement in the complaint, the subject matter of Plaintiff's
claims is photographs.   Defendants contend that step one of the
preemption analysis is satisfied because photographs fall within
the protective scope of the Copyright Act.

Infringement of the Right of Publicity (Claim Three)

In pleading Plaintiff's claim for infringement of the right of
publicity, the complaint alleges that the Infringed Images are
photographs featuring the likeness of Plaintiff and of the members
of the Class. The headers for the Instagram posts at issue also
commonly featured the Influencers' name and/or other identifying
information.

Although Plaintiff's allegations in part involve the
misappropriation of photographs, those photographs are not the
exclusive subject of Plaintiff's right of publicity claim.
Plaintiff's claim additionally relies on information outside of the
photographs, including Plaintiff's name and/or other identifying
information associated with Plaintiff's likeness.  

Defendant contends that Plaintiff has only alleged use of her
likeness within an existing copyrightable work (i.e., a
photograph). But that argument is inconsistent with the complaint,
which alleges many times over that Defendant misappropriated
Plaintiff's likeness and identity in text, in addition to
Plaintiff's photographs.

Here, because Plaintiff alleges an unlawful use of her likeness by
Defendant, and further alleges the misappropriation of
non-photographic elements of her likeness and identity, Plaintiff
has asserted rights that are not equivalent to the rights of
copyright holders. Therefore, the subject matter of Plaintiff's
right of publicity claim does not fall within the subject matter of
the Copyright Act.  

Contract Interference (Claim Four)

The complaint alleges that, pursuant to a contract between
Plaintiff and LIKEtoKNOW.it Plaintiff was "entitled to a portion of
the revenue that LIKEtoKNOW.it received from sales resulting from
social media users' use of the app in connection with [Plaintiff's]
social media posts. Plaintiff alleges that Defendant intentionally
removed the LIKEtoKNOW.it links from Plaintiff's Instagram pages as
part of its unauthorized reposting of the Infringed Images to its
own website.

The subject matter of Plaintiff's contract interference claim is
not limited to the use of Plaintiff's copyrighted images. The
contract claim additionally relies on the unauthorized removal of
LIKEtoKNOW.it monetized links that were associated with the
copyrighted images. The removal of those monetized links is a key
component of Plaintiff's claim, and separate from the reproduction
of Plaintiff's copyrighted images. For this reason, Plaintiff's
contract interference claim is not preempted by the Copyright Act.

UCL (Claim Six)

The UCL borrows violations of other laws and treats them as
unlawful practices and makes them independently actionable.
Plaintiff alleges the same facts underlying her contract
interference claim as the basis of her UCL claim, stating that
because Defendant interfered with Plaintiff's and Class members'
ability to profit from their contractual arrangement with
LIKEtoKNOW.it, Plaintiff and Class members have lost money or
property.

For the same reasons discussed above with respect to Plaintiff's
contract interference claim, Plaintiff's UCL claim relies on
additional rights separate from the infringement of Plaintiff's
copyrighted images.

Contract Interference Claim

A claim for contract interference requires that Plaintiff allege:
(1) a valid contract between plaintiff and a third party (2)
defendant's knowledge of this contract (3) defendant's intentional
acts designed to induce a breach or disruption of the contractual
relationship (4) actual breach or disruption of the contractual
relationship and (5) resulting damage.

Defendant contends that Plaintiff has (1) failed to sufficiently
allege the existence of a valid contract, because no contract is
attached to the complaint and the complaint does not specify
specific contract terms and (2) failed to allege how the
Defendant's conduct was designed to induce a breach or disruption
of the contract.  

Plaintiff is not required to attach a copy of the contract to her
complaint, and Plaintiff's allegations plausibly allege every
element of the claim. The alleged conduct raises the plausible
inference that Defendant, knowing about Plaintiff's contract with
LIKEtoKNOW.it, disrupted that contract by misappropriating
Plaintiff's images and likeness in order to funnel users to
Defendant's website.

Copyright Infringement Claim

Defendant additionally contends that Plaintiff failed to properly
plead a claim for copyright infringement because Plaintiff does not
identify the specific photographs Defendant allegedly publicly
displayed without her permission or allege that she submitted a
complete application for their registration prior to initiating
suit.  

Plaintiff's allegations here raise the plausible inference that
Plaintiff's copyright registration satisfies the requirements of
section 412. Plaintiff has alleged dates of infringement and
further alleged that Plaintiff and members of the Subclass either
hold a copyright registration certificate from the United States
Copyright Office or have applied for a registration certificate.
Compare McGucken, 2018 WL 3410095 at*5 with Compl.  Clearly, to
survive summary judgment on her individual claim for statutory
damages and to serve as a class representative under Rule 23(a),
Plaintiff must establish copyright registration dates that satisfy
section 412. But at the pleading stage, Plaintiff has plausibly
alleged facts sufficient to support her claim for statutory damages
and attorneys' fees. The Court therefore DENIES Defendant's motion
to dismiss Plaintiff's prayer for statutory damages and attorneys'
fees.

Accordingly, the Court denies the Defendant's motion to dismiss in
its entirety.

A full-text copy of the District Court's February 7, 2019 Order is
available at https://tinyurl.com/yxscdcez from Leagle.com.

Nita Batra, Plaintiff, represented by Lesley F. Portnoy --
lportnoy@glancylaw.com -- Glancy Prongay and Murray LLP, Michael N.
Cohen, Cohen IP Law Group, PC, Stan Karas -- SKaras@glancylaw.com
-- Glancy Prongay & Murray LLP & Jonathan Moshe Rotter --
jrotter@glancylaw.com -- Glancy Prongay & Murray LLP.

Zoha Memari, Plaintiff, represented by James H. Freeman, Liebowitz
Law Firm, PLLC.

PopSugar, Inc., Defendant, represented by Benedict Y. Hur --
bhur@keker.com -- Attorney at Law Keker, Van Nest & Peters LLP,
Travis S. Silva -- tsilva@keker.com -- Keker, Van Nest & Peters LLP
& Bevan Augusta Dowd -- bdowd@keker.com -- Keker, Van Nest and
Peters LLP.

Cathy O'Brien & Laura Adney, Interested Partys, represented by
Michael Lawrence Schrag -- mls@classlawgroup.com -- Gibbs Law Group
LLP.


REVERA INC: Plaintiffs' Lawyers to File Mass Tort Claims
--------------------------------------------------------
Mike Wolkowicz, writing for Law Times, reports that lawyers
representing families alleging that Ontario based nursing home
operator, Revera Inc., breached its duty of care to its elderly and
infirm residents, announced last December that they would be
discontinuing an application for class action and instead
proceeding under a mass tort. This decision highlights what appears
to be the increasing trend towards mass tort claims in the Province
of Ontario and away from class action lawsuits in certain
circumstances.

Like a class action, a mass tort involves multiple Plaintiffs, or
people, who have been injured by the same defendant or defendants.
The key difference between the two approaches involves the manner
in which class actions and mass tort lawsuits are commenced and
resolved.

In a class action, a single lawsuit is filed by a representative
Plaintiff on behalf of an entire group of people who suffered harm
as a result of the actions of a Defendant or Defendants. This means
that the entire group of Plaintiffs are treated as one, and the
lead Plaintiff sues the Defendant on behalf of the entire class.
After the claim is filed, lawyers for the proposed class must bring
a Motion for Certification.

Should the class be approved, an opt-out period for prospective
class members is given. Individuals who fail to opt-out will be
deemed members of the class. Regardless of the manner by which a
class action is resolved, either by settlement or judgment,
individual class members will be bound by the decision and damages
apportioned based on the terms of the resolution.

In contrast to a class action, mass tort claims are filed
individually on behalf of each claimant. As such, there is no
requirement for the often lengthy and costly process of bringing a
Motion for Certification before the Court. By avoiding the need for
certification, Plaintiff counsel has the added advantage of being
able to expedite the litigation process and in so doing, move to
the Discovery stage sooner. In addition, lawyers representing
Plaintiffs in a mass tort must only be concerned with the
individuals who have retained their services and need not consider
unknown class members.

In resolving mass tort claims, individual Plaintiffs are given the
opportunity to exercise control over their own outcome. Plaintiffs
are able to accept or reject a settlement offer, or make the
decision to proceed to trial on their own issues. Damages are
therefore assessed on individual circumstances and not on the basis
of the group as a whole.

Given the increasing number of high-profile claims involving
multiple claimants in our Province, it will be interesting to see
how these competing approaches are utilized by lawyers. The Reverea
claims are a good example where counsel has weighed the advantages
and drawbacks of both mass tort and class action lawsuits, and
elected to proceed by way of mass tort. [GN]


RICHARD SOKOLOFF: Court Refuses to Reconsider Carvalho Stay
-----------------------------------------------------------
The United States District Court for the Eastern District of New
York issued a Memorandum and Order denying Defendant’s Motion for
Reconsideration in the case captioned DAWN CARVALHO, Plaintiff, v.
RICHARD SOKOLOFF, ATTORNEY AT LAW, Defendant. No. 2:18-CV-00277
(ADS)(SIL). (E.D.N.Y.).

Presently before the Court is a motion by the Defendant, pursuant
to Local Civil Rule 6.3, to reconsider the Order and to discontinue
the Plaintiff's action.  

The Plaintiff filed this putative class action against Defendant
alleging violations of the Fair Debt Collection Practices Act
(FDCPA).

The Defendant's counsel filed a letter motion requesting this Court
stay the proceedings due to Defendant filing for Chapter 13
bankruptcy.

The Court granted the Defendant's motion and issued a stay pending
the outcome of the Defendant's bankruptcy case with instructions
"to notify the Court within ten days of the outcome of said case.

The Plaintiff filed a letter motion requesting the Court lift the
stay to allow the parties to proceed with the instant matter.

The Court granted the Plaintiff's request and lifted the stay.  

Local Civil Rule 6.3 permits a party to move for reconsideration of
a court order within 14 days after the entry of the Court's
determination of the original motion. The standard for granting
such a motion is strict, and reconsideration will generally be
denied unless the moving party can point to controlling decisions
or data that the court overlooked matters, in other words, that
might reasonably be expected to alter the conclusion reached by the
court.

The Court finds no clear error justifying reconsideration of the
Order. Pursuant to Section 727(b), a discharge in a Chapter 7 case
discharges a debtor from all debts arising before the filing of the
bankruptcy petition, except those that are excepted from discharge.
Section 523(a)(3) excepts from discharge certain debts that the
debtor fails to schedule in time to permit the creditor to file a
proof of claim or seek the debt excepted from discharge, so long as
the creditor lacked sufficient notice to file a proof of claim. The
burden of establishing that a creditor has received adequate notice
rests with the debtor.

Here, the Defendant failed to carry this burden.

The parties agree that the Plaintiff, through her counsel, had
actual notice of the Chapter 13 proceedings. However, conversion
from one chapter to another triggers the requirement that a
creditor receive notice. The Second Circuit has explicitly held
that knowledge/notice in a Chapter 13 proceeding is insufficient to
constitute knowledge/notice if the proceeding is converted to
Chapter 7. Debtors must provide independent notice of the
conversion to creditors because creditors' responsibilities are
completely different under each chapter.

The Defendant does not allege that it gave such notice to the
Plaintiff. Further, the Defendant puts forward no evidence
illustrating actual or constructive knowledge of the conversion to
a Chapter 7 proceeding, save for his hypothesis that it appears she
was monitoring the case through PACER. The Defendant's speculation
is not evidence. It is just as likely that the Plaintiff discovered
the conversion of the bankruptcy proceedings after the discharge of
the Defendant's debt as it is that she discovered the conversion
before the discharge. Considering the Defendant failed to provide
notice of the conversion, as he was required to by law, he is not
entitled to an inference in his favor.

Therefore, the Plaintiff lacked the knowledge necessary for her
debts to become discharged in the Chapter 7 proceeding.

The Court denies the Defendant's motion for reconsideration. The
stay of these proceedings will remain lifted.

A full-text copy of the District Court's February 7, 2019
Memorandum and Order is available at https://tinyurl.com/y4ep35kq
from Leagle.com.

Dawn Carvalho, on behalf of herself and all others similarly
situated, Plaintiff, represented by Justin Alan Auslaender,
Thompson Consumer Law Group.

Richard Sokoloff Attorney at Law, Defendant, represented by Robert
L. Arleo, Robert L. Arleo, Esq.


SCOTT FARMS: Court OKs Conditional Certification in Mondragon
-------------------------------------------------------------
The United States District Court for the Eastern District of North
Carolina, Western Division, issued an Order granting Plaintiffs'
Motion for Conditional Certification of collective action under the
Fair Labor Standards Act (FLSA) in the case captioned RICARDO
MONDRAGON, EUSTORGIO ESPINOBARROS FELICIANO, JUAN CONTRERAS,
CUTBERTO ORTIZ HERNANDEZ, RAMÓN ORTIZ HERNANDEZ, ALEJANDRO JIMENEZ
GONZALEZ, RENATO ROMERO ACUÑA, JOSÉ TAPIA, ANASTACIO LOPEZ SOLIS,
and ABDON QUIRASCO SIXTECO, Plaintiffs, v. SCOTT FARMS, INC., ALICE
H. SCOTT, LINWOOD H. SCOTT, JR., LINWOOD H. SCOTT, III, DEWEY R.
SCOTT, JFT HARVESTING, INC., JUAN F. TORRES, OASIS HARVESTING,
INC., and RAMIRO B. TORRES, Defendants. No. 5:17-CV-00356-FL.
(E.D.N.C.).

The Plaintiffs assert several different causes of action against
the defendants, alleging various classes of plaintiffs have been
harmed by wage and hour violations under the Agricultural Worker
Protection Act (AWPA), the North Carolina Wage and Hour Act (NCWHA)
and FLSA collective action.

The Plaintiffs argue that the they have met the minimal burden to
establish their FLSA collective action should be certified, that
plaintiffs and the putative collective action members are similarly
situated, and that putative members of the Collective Action were
subject to the same policy or practice: defendants required
employees to work in excess of 40 hours per week for a flat hourly
rate without paying them the required premium for overtime hours,
during workweeks in which they were entitled to the higher overtime
rate. Plaintiffs also argue that their proposed notice is
appropriate in this case, and should be distributed to the
collective action members.

Finally, plaintiffs argue that defendants should be required to
provide the names and contact information of potential collective
action members to facilitate distribution of notice.

There are two requirements for maintenance of a class action under
the FLSA: the plaintiffs in the proposed class must be similarly
situated and they must opt in by filing their consent to sue with
the court. To determine if conditional certification is appropriate
in this case, the court begins by analyzing the working conditions
of plaintiffs Romero Acuña, Quirasco Sixteco, and their
co-workers, turns to the issues of joint employer and independent
contractor status, and finally addresses whether notice is
appropriate in this case.

Working Conditions of Plaintiffs and Coworkers

Based on the limited facts before the court, the record shows that
if plaintiffs establish that sweet potatoes other than those grown
by Scott Farms were processed, then establishing a wage and hour
violation for each plaintiff involved in processing the sweet
potatoes does not require an individualized inquiry.

Scott defendants' business records also identify under job ID where
workers performed work presumably subject to this action, with
designations such as sweet potato house (Swphouse), sweet potato
storage (Swp storage), as opposed to other work, such as sweet
potato field work (swpfieldwo2). On the face of such records, the
court can determine the type of work performed by plaintiffs
without resorting to individualized inquiry.

Furthermore, pursuant to the court's order granting the parties'
consent motion to extend discovery, additional facts remain to be
elucidated as to the FLSA Collective Action. As this stage in the
proceeding, the court is satisfied that plaintiffs and their
proposed group of employees are in a manageably similar factual
situation with regard to defendants' alleged policy not to pay
overtime for work in excess of forty hours in a week.

Joint Employment and Employee Status

The parties dispute whether plaintiffs have produced evidence
sufficient to show that plaintiffs were jointly employed by the
Scott defendants and Torres defendants, and whether the H-2A
workers, which plaintiffs seek to join in this action, are
independent contractors not subject to FLSA.

The Fourth Circuit has established a two-step framework for
analyzing FLSA joint employment claims. Courts must first determine
whether two entities should be treated as joint employers. In
determining if defendants are joint employers, the fundamental
question is whether defendants share, agree to allocate
responsibility for, or otherwise codetermine formally or
informally, directly or indirectly the essential terms and
conditions of the worker's employment.

After making a determination as to whether defendants are joint
employers, the court must then analyze whether the worker
constitutes an employee or independent contractor of the combined
entity, if they are joint employers, or each entity, if they are
separate employers.

The Plaintiffs present sufficient evidence at this stage in the
case to show that the H-2A workers in this case are jointly
employed by the Scott defendants and the Torres defendants. Scott
defendants direct the Torres defendants where to send the H-2A
workers and what work they need to be doing, and decide when H-2A
workers will work in the sweet potato packinghouse and how many
H-2A workers should do that work. Scott defendants jointly share in
the power of the Torres defendants to hire H-2A workers by
instructing Torres defendants on how many workers to hire,
determining the H-2A workers' dates of employment, and paying in
full or in part the visa and transportation costs associated with
bringing the H-2A workers to North Carolina. Torres defendants and
the H-2A workers they employ only work with Scott Farms, indicating
a degree of permanency in the relationship between the Torres
defendants and the Scott defendants.

Scott defendants argue that the employees are not similarly
situated because they do not share the same direct employer. For
the reasons stated above, plaintiffs have carried their burden to
show joint employment at the conditional certification stage.
Torres defendants also argue that there is no evidence that H-2A
workers employed by Torres defendants ever packed sweet potatoes
not produced by Scott Farms and therefore the collective action
should not be conditionally certified. Torres defendants' response
in opposition begs the central factual question of the FLSA
Collective Action. Defendants have admitted that H-2A workers
worked in the sweet potato packinghouse in 2015 and 2016. The court
leaves for a later day the issue of if and when defendant Scott
Farms had its employees, including those jointly employed by the
Torres defendants, process sweet potatoes produced by other
growers.

In sum, plaintiffs have shown sufficient evidence of joint
employment for the case to proceed through conditional
certification. Therefore, putative plaintiffs in the FLSA
Collective Action are similarly situated to the named plaintiffs.
Conditional certification of the FLSA Collective Action is granted.
The court turns to whether the proposed notice in this case is
appropriate.

A full-text copy of the District Court's February 7, 2019 Opinion
is available at https://tinyurl.com/y65mepoy from Leagle.com.

Ricardo Mondragon, Eustorgio Espinobarros Feliciano, Juan
Contreras, Cutberto Ortiz Hernandez, Ramon Ortiz Hernandez,
Alejandro Jimenez Gonzalez, Renato Romero Acuna & Jose Tapia,
Plaintiffs, represented by Clermont Fraser Ripley --
clermont@ncjustice.org -- Robert J. Willis & Carol L. Brooke.

Anastacio Lopez Solis & Abdon Quirasco Sixteco, Plaintiffs,
represented by Carol L. Brooke , North Carolina Justice Center.

Scott Farms, Inc., Alice H. Scott, Linwood H. Scott, Jr., Linwood
H. Scott III & Dewey R. Scott, Defendants, represented by F.
Marshall Wall -- mwall@cshlaw.com -- Cranfill Sumner & Hartzog LLP
& Laura E. Dean, Cranfill Sumner & Hartzog.

JFT Harvesting, Inc., Juan F. Torres, Oasis Harvesting, Inc. &
Ramiro B. Torres, Defendants, represented by Andrew Miller Jackson,
Andrew M. Jackson, Attorney at Law.


SCOTTS CO: Settles Overtime Pay Class Action for $1.07MM
--------------------------------------------------------
Perry Cooper, writing for Bloomberg Law, reports that The Scotts
Co. and EG Systems Inc. will pay $1.07 million to settle overtime
claims by New York lawn care technicians under a deal that won
preliminary approval Feb. 1.

The terms of the class and collective action settlement are within
the range of possible approval, Judge Vernon S. Broderick wrote for
the U.S. District Court for the Southern District of New York.

The class includes 195 members. [GN]


SPORTIME CLUBS: Taveras Sues Over Unpaid Overtime Provisions
------------------------------------------------------------
Jose Taveras, on Behalf of Himself And All Others Similarly
Situated, Plaintiffs, v. Sportime Clubs, LLC d/b/a John McEnroe
Tennis Academy, Anthony Decoo and Ryan Schneider, Defendants, Case
No. 1:19-cv-01853 (S.D. N.Y., February 27, 2019) is a civil action
for damages and equitable relief based upon Defendants' flagrant
and willful violations of Plaintiff's rights guaranteed to him by:
(i) the overtime provisions of the Fair Labor Standards Act
("FLSA); (ii) the overtime provisions of New York Labor Law
("NYLL"); (iii) the requirement that employers furnish employees
with wage statements on each payday containing specific categories
of information under the NYLL; (iv) the requirement that employers
furnish employees with a wage notice at the time of hiring
containing specific categories of accurate information,  and (v)
any other claim(s) that can be inferred from the facts set forth
herein.

Throughout the majority of his employment, the Defendants required
Plaintiff to work, and Plaintiff did work, more than forty hours.
However, the Defendants failed to pay Plaintiff at the overtime
rate of pay of one and one-half times his regular rate of pay for
each hour that Plaintiff worked per week in excess of forty, as the
FLSA and the NYLL require, says the complaint.

Plaintiff worked for Defendants as a driver for the Defendants from
in or about April 14, 2016 until December 26, 2017.

Tennis Academy was and is a domestic Limited Liability Company with
its principal place of business located at 1 Randalls Island, New
York, NY 10035.[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
     Phone: (212) 583-7400


TBT RESTAURANT: Szelag Sues Over Unpaid Minimum Wages
-----------------------------------------------------
Dominika Szelag on behalf of herself and all others similarly
situated, Plaintiff, v. TBT Restaurant Corp. d/b/a Teresa's
Restaurant, Teresa Brzozowska a/k/a Teresa Brzozowska-rys, Teresa
Dybska, Bogdan Brzozowski, Defendants, Case No. 1:19-cv-01171 (E.D.
N.Y., February 27, 2019) brought this action to recover unpaid
wages, unpaid minimum wage, liquidated damages, punitive damages,
and reasonable attorney fees and costs from the Defendants, for
whom the Plaintiff performed work.

The Defendants willfully committed violations of the Fair Labor
Standards Act ("FLSA") and the New York Labor Law ("NYLL") by
failing to keep accurate time records, failing to pay the Plaintiff
a minimum wage by using an unlawful tip-credit, failing to pay a
spread of hours premium and not paying Plaintiff her gratuities

The Defendants did not provide the Plaintiff with proper notice to
utilize a tip credit, did not keep track of the Plaintiff's work
hours, did not pay the statutorily required direct wage, and took
too large a tip credit. Because the Defendants did not take the
necessary steps to utilize a proper tip credit, the Plaintiff was
paid less than the Federal and New York State minimum wage for each
hour worked., says the complaint.

Plaintiff was a busgirl and waitress employed in the Defendants'
restaurant and resides in Brooklyn, New York.

TBT Restaurant Corp. d/b/a Teresa's Restaurant is a corporation
formed in the State of New York and is located at 80 Montague
Street, Brooklyn, NY 11201.[BN]

The Plaintiff is represented by:

     Jordan El-Hag, Esq.
     EL-HAG & ASSOCIATES, P.C
     777 Westchester Ave, Suite 101
     White Plains, N.Y, 10604
     Phone: (914) 218-6190
     Fax: (914) 206-4176
     Email: Jordan@elhaglaw.com
     Web: www.elhaglaw.com


TEXAS: Lumsden Moves for Certification of TDCJ Prisoners Class
--------------------------------------------------------------
The Plaintiffs in the lawsuit captioned RAYMOND LUMSDEN, ET AL. v.
T.D.C.J DIRECTOR LORIE DAVIS, ET AL., Case No.
5:19-cv-00025-OLG-ESC (W.D. Tex.), seek certification of a class of
all prisoners, who are now, or in the future will be subject to
Texas Department of Criminal Justice secure confinement.

Lorie Davis is the director of the Texas Department of Criminal
Justice.

This civil action brought under 42 U.S.C. Section 1983 challenges
the alleged violation of civil rights of prisoners, who are now or
in the future will be in the Texas Department of Criminal Justice
Institutions Division.  This action addresses alleged violations of
the Plaintiff's rights under the Eighth Amendment to the United
States Constitution, and other federal and state laws.

Raymond Lumsden, of Kenedy, Texas, appears pro se.[CC]


TOMMY JOHN: Garey Asserts Violation under Disabilities Act
----------------------------------------------------------
Tommy John, Inc., is facing a class action lawsuit filed pursuant
to the Americans with Disabilities Act. The case is styled Kevin
Garey, on behalf of himself and all others similarly situated,
Plaintiff v. Tommy John, Inc., Defendant, Case No. 1:19-cv-01913
(S.D. N.Y., February 28, 2019).

Tommy John, Inc., manufactures and markets undershirts and
underwear for men, wives, and girlfriends. It sells its products
online and through a network of retail shops in the United States;
and ships its products internationally. The company was formerly
known as TJP Enterprises, LLC. Tommy John, Inc. was incorporated in
2012 and is based in New York, New York.[BN]

The Plaintiff is represented by:

   Jonathan Shalom, Esq.
   Shalom Law, PLLC.
   124-04 Metropolitan Avenue
   Kew Gardens, NY 11374
   Tel: (516) 807-1748
   Email: jshalom@jonathanshalomlaw.com

U.S. SECURITY: Court OKs Amend to Burrola Complaint
---------------------------------------------------
The United States District Court for the Southern District of
California issued an Order granting Plaintiff Waldo Burrola's
Motion for Leave to File a First Amended Complaint in the case
captioned WALDO BURROLA, individually and on behalf of other
members of the general public similarly situated, Plaintiff, v.
U.S. SECURITY ASSOCIATES, INC. and DOES 1 TO 100, inclusive,
Defendants. Case No. 3:18-cv-00594-BEN-JLB. (S.D. Cal.).

Burrola filed a Class and Representative Action Complaint in the
San Diego Superior Court, against U.S. Security for damages and
restitution, alleging two causes of action stemming from violations
of California and federal labor laws. During the class period, U.S.
Security required that Burrola and Class Members be allowed access
to on-site toilet facilities only if they had successfully passed a
background check. Burrola and Class Members were not given the
opportunity to take the background check and thus were not allowed
to use the on-site toilet facilities.  

Burrola and Class Members were made to procure relief from another
employee in order to use off site toilet facilities.   

In this case, considering that Burrola could have included the
state law claims in his original Complaint, the decision to seek
dismissal of the federal claim appears to be a tactical decision
intended to allow for a jurisdictional challenge at some later
point in the proceedings. Further, because no discovery has been
done since the case is still in the early stages, amendment will
not result in any prejudice. Aside from a possible jurisdictional
challenge, any evidence of prejudice, undue delay or bad faith is
extremely limited. Thus, dismissing the federal claim and adding
the state law claims may be meritorious, and any prejudice to U.S.
Security at this point appears to be minimal or non-existent. Thus,
there is insufficient justification to deny leave.

Prejudice to U.S. Security

The Court first considers whether granting Burrola leave to amend
would prejudice U.S. Security, as prejudice to the opposing party
carries the greatest weight in the leave to amend inquiry.
Prejudice has been found where the parties have engaged in
voluminous and protracted discovery" prior to amendment, or where
expense, delay, and wear and tear on individuals and companies is
shown.  

Here, U.S. Security does not argue that granting Burrola leave to
amend would prejudice it.  U.S. Security also does not argue that
permitting amendment would increase the expense of litigation, or
cause prejudicial delay.

Nor does the record in this case indicate that permitting amendment
would prejudice U.S. Security. As stated supra, at the time Burrola
filed this Motion, discovery had yet commenced.  

Finally, U.S. Security does not argue that permitting amendment
would delay litigation such that it would suffer prejudice. Indeed,
in its Opposition, U.S. Security does assert that Burrola should
not be permitted to surreptitiously add additional claims without
providing any notice to this Court or Defendants. However, at this
early stage of the case, the Court questions whether U.S. Security
actually did not have notice considering Burrola's Reply indicates
that California Labor Code section 98.6(a) was raised in the
original Complaint; and moreover, U.S. Security should have
anticipated that section 6300, et seq. might be sought to be added
considering its inclusion in the related suit between Burrola and
U.S. Security, also in this district.

Accordingly, U.S. Security did or should have anticipated the
possibility of addressing this issue at some point, and cannot now
claim to face prejudicial delay that the possibility has come to
fruition.

The Court finds that granting Burrola leave to amend will not
prejudice U.S. Security.  
Undue Delay

U.S. Security does not contend Burrola unduly delayed in seeking to
drop his federal claim. This is likely because while Burrola could
have brought this claim in his original complaint, a delay of four
months while the case is still in its early stages is not undue
delay.  

Bad Faith

In deciding whether to grant a party leave to amend, the district
court also considers whether the moving party acted in bad faith.
Bad faith exists where, inter alia,the proposed amendment will not
save the complaint or the plaintiff merely is seeking to prolong
the litigation by adding new but baseless legal theories. Bad faith
may also exist when a party repeatedly represents to the court that
the party will not move to amend its complaint, and subsequently
moves to amend once the proverbial writing was on the wall that the
party will suffer an adverse judgment. A court may also find bad
faith when the moving party has a history of dilatory tactics. To
determine whether bad faith exists, the Court looks to the evidence
in the record.  

U.S. Security does not outright contend that Burrola acted in bad
faith in submitting his Motion to Amend. U.S. Security does however
allude that Burrola failed to provide the Court and opposing
counsel with proper notice of his intention to seek addition of the
claims or theories to his second cause of action; instead stating
that the only substantive change is to drop the federal violation
of U.S. Dept. of Labor Code 29 CFR 1910.141.

Burrola responds that the FAC is based upon the same factual
allegations as in the original complaint, and thus only
superficially adds the violation of California Labor Code sections
6300 et seq., to the Second Cause of Action and the related
penalties. Moreover, California Labor Code section 98.6(a) is
alleged in paragraph 24 of the original complaint, as a part of the
Second Cause of Action.

The Court finds that U.S. Security's argument for bad faith is
lacking. First, California Labor Code section 98.6(a) was asserted
by Burrola in the original Complaint.4 Thus, U.S. Security's
argument on this point is moot. Second, while California Labor Code
section 6300, et seq. missing from the notice and FAC caption, it
is specifically alleged in the Second Cause of Action's title and
description. Moreover, it was specifically alleged in Burrola's
Class and Representative Action Complaint5 and PAGA Claim Notice
and Complaint submitted to Cal/OSHA. Considering the
aforementioned, it should not be a stretch for diligent counsel to
anticipate that counsel would seek leave to include section 6300,
et seq. in this matter.

Burrola's decision to add a state law claim and dismiss his federal
claim to potentially challenge jurisdictional issues raised in U.S.
Security's Motion to Compel Arbitration is insufficient evidence of
unfair tactical maneuvering to demonstrate the type of bad faith
that would justify denying leave.

Therefore, Burrola's Motion for Leave is granted.

A full-text copy of the District Court's February 7, 2019
Memorandum and Order is available at https://tinyurl.com/y4o9ajt2
from Leagle.com.

Waldo Burrola, individually, and on behalf of other members of the
general public similarly situated, Plaintiff, represented by
Eduardo Martorell -- EMartorell@Martorell-Law.com -- Martorell Law
APC.

U.S. Security Associates, Inc., Defendant, represented by Ross A.
Boughton -- rboughton@fordharrison.com -- Ford & Harrison LLP.


UGI CORP: Suits Over Underfilled Portable Propane Cylinders Ongoing
-------------------------------------------------------------------
UGI Corporation said in its Form 10-Q Report filed with the
Securities and Exchange Commission on February 7, 2019, for the
quarterly period ended December 31, 2018, that the company
continues to defend itself against class action lawsuits alleging
collusion in reducing the fill level of portable propane
cylinders.

Between May and October of 2014, purported class action lawsuits
were filed in multiple jurisdictions against the Partnership/UGI
and a competitor by certain of their direct and indirect customers.
The class action lawsuits allege, among other things, that the
Partnership and its competitor colluded, beginning in 2008, to
reduce the fill level of portable propane cylinders from 17 pounds
to 15 pounds and combined to persuade their common customer,
Walmart Stores, Inc., to accept that fill reduction, resulting in
increased cylinder costs to retailers and end-user customers in
violation of federal and certain state antitrust laws.  

The claims seek treble damages, injunctive relief, attorneys' fees
and costs on behalf of the putative classes.

On October 16, 2014, the United States Judicial Panel on
Multidistrict Litigation transferred all of these purported class
action cases to the Western Missouri District Court.  

As the result of rulings on a series of procedural filings,
including petitions filed with the Eighth Circuit and the U.S.
Supreme Court, both the federal and state law claims of the direct
customer plaintiffs and the state law claims of the indirect
customer plaintiffs were remanded to the Western Missouri District
Court.

The decision of the Western Missouri District Court to dismiss the
federal antitrust claims of the indirect customer plaintiffs was
upheld by the Eighth Circuit. Motions are pending before the
Western Missouri District Court regarding the indirect purchasers'
state law claims.

UGI said, "We are unable to reasonably estimate the impact, if any,
arising from such litigation. We believe we have strong defenses to
the claims and intend to vigorously defend against them."

UGI Corporation distributes, stores, transports, and markets energy
products and related services in the United States and
internationally. The company operates through four segments:
AmeriGas Propane, UGI International, Midstream & Marketing, and UGI
Utilities. UGI Corporation was founded in 1882 and is based in King
of Prussia, Pennsylvania.


UNION PACIFIC: Mulls Appeal of Class Certification Order
--------------------------------------------------------
Union Pacific Corporation said in its Form 10-K report filed with
the U.S. Securities and Exchange Commission on February 8, 2019,
for the fiscal year ended December 31, 2018, that the U.S. District
Court of Nebraska has granted plaintiffs' motion to certify the ADA
allegations as a class action.

In 2016, a lawsuit was filed in U.S. District Court for the Western
District of Washington alleging violations of the Americans with
Disabilities Act (ADA) and Genetic Information Nondiscrimination
Act relating to Fitness for Duty requirements for safety sensitive
positions.

On August 8, 2016, the U.S. District Court for the Western
District of Washington granted plaintiffs' motion to transfer their
claim to the U.S. District Court of Nebraska.

On February 5, 2019, the U.S. District Court of Nebraska granted
plaintiffs' motion to certify the ADA allegations as a class
action.

Union Pacific said, "We intend to appeal this class certification
to the U.S. Court of Appeals for the 8th Circuit. We continue to
deny these allegations, believe this lawsuit is without merit and
will defend our actions.  We believe this lawsuit will not have a
material adverse effect on any of our results of operations,
financial condition, and liquidity."

Union Pacific Corporation, through its subsidiary, Union Pacific
Railroad Company, engages in the railroad business in the United
States. It offers transportation services for agricultural
products, including grains, commodities produced from grains,
fertilizers, and food and beverage products; coal and sand, as well
as petroleum, liquid petroleum gases, and renewables; and
construction products, industrial chemicals, plastics, forest
products, specialized products, metals and ores, and soda ash, as
well as intermodal and finished vehicles. Union Pacific Corporation
was founded in 1862 and is headquartered in Omaha, Nebraska.


UNION PACIFIC: Still Awaits Decision on Interlocutory Appeal
------------------------------------------------------------
Union Pacific Corporation said in its Form 10-K report filed with
the U.S. Securities and Exchange Commission on February 8, 2019,
for the fiscal year ended December 31, 2018, that the company is
awaiting a court decision on the plaintiffs' interlocutory appeal.

Union Pacific said, "As we reported in our Quarterly Report on Form
10-Q for the quarter ended June 30, 2007, 20 rail shippers (many of
whom are represented by the same law firms) filed virtually
identical antitrust lawsuits in various federal district courts
against us and four other Class I railroads in the U.S. Currently,
UPRR and three other Class I railroads are the named defendants in
the lawsuit. The original plaintiff filed the first of these claims
in the U.S. District Court in New Jersey on May 14, 2007. The
number of complaints reached a total of 30. These suits allege that
the named railroads engaged in price-fixing by establishing common
fuel surcharges for certain rail traffic."

On June 21, 2012, Judge Friedman issued a decision that certified a
class of plaintiffs with eight named plaintiff representatives. The
decision included in the class all shippers that paid a rate-based
fuel surcharge to any one of the defendant railroads for
rate-unregulated rail transportation from July 1, 2003, through
December 31, 2008. On July 5, 2012, the defendant railroads filed a
petition with the U.S. Court of Appeals for the District of
Columbia requesting that the court review the class certification
ruling.

On August 9, 2013, the Circuit Court vacated the class
certification decision and remanded the case to the district court
to reconsider the class certification decision in light of a recent
Supreme Court case and incomplete consideration of errors in the
expert report of the plaintiffs. After reviewing an intervening
case, supplemental expert materials and related briefing from the
parties, Judge Friedman scheduled and completed a new class
certification hearing during the week of September 26, 2016.  

On October 10, 2017, the parties received a ruling from Judge
Friedman denying class certification. Plaintiffs have sought
appellate review of that ruling and on December 20, 2017, were
granted the right of an interlocutory appeal by the U.S. Court of
Appeals for the District of Columbia Circuit. A hearing of the
appeal was conducted on September 28, 2018.

"We are awaiting a decision on that hearing," the company said.

Union Pacific Corporation, through its subsidiary, Union Pacific
Railroad Company, engages in the railroad business in the United
States. It offers transportation services for agricultural
products, including grains, commodities produced from grains,
fertilizers, and food and beverage products; coal and sand, as well
as petroleum, liquid petroleum gases, and renewables; and
construction products, industrial chemicals, plastics, forest
products, specialized products, metals and ores, and soda ash, as
well as intermodal and finished vehicles. Union Pacific Corporation
was founded in 1862 and is headquartered in Omaha, Nebraska.


UNITED STATES: Class Action Over Sham Travel Ban Waiver Okayed
--------------------------------------------------------------
Nicholas Iovino, writing for Courthouse News Service, reported that
a federal judge on Feb. 4 refused to dismiss a class action
claiming the Trump administration uses a sham travel ban waiver
process to deny virtually all waiver-eligible immigrants from five
Muslim-majority countries entry into the United States.

"Plaintiffs allege facts plausibly demonstrating that a de facto
policy of blanket denials has usurped individualized waiver
decisions," U.S. District Judge James Donato wrote in his 19-page
ruling.

Thirty-six plaintiffs sued the Trump administration in March 2018,
claiming the government failed to follow its own guidelines and
procedures for reviewing travel ban waiver requests as required by
law. The plaintiffs are immigrants or family members of immigrants
from Iran, Libya, Somalia, Syria and Yemen.

"We are encouraged by the court's decision allowing some of our
claims against the government to move forward," plaintiffs'
attorney Sirine Shebaya of Muslim Advocates in Washington said by
email. "The court rightly found that we have alleged enough to show
that the government is not following its own policies and
procedures."

Some plaintiffs reported State Department officials refused to
accept documents in support of their waiver requests. Others said
they were never given a chance to apply for a waiver, which can
only be done during a visa interview. Those who had visa interviews
before the third travel ban proclamation was issued in September
2017 also never got an opportunity to seek a waiver, according to
the lawsuit.

The complaint describes how waiver denials have prevented parents
from attending their children's weddings and being present for the
births of grandchildren. They have also separated sick and dying
parents from children in the U.S., blocked scientists from working
and doing research at U.S. universities, and made those who
invested $500,000 or more in U.S. businesses ineligible for visas
under the EB-5 immigrant investor program.

As of Feb. 25, 2018, only two waivers were granted out of 8,406
requests, an approval rate of 0.02 percent. The number of granted
waivers gradually rose to 768 out of 33,176 as of May 31, 2018, a
2.3 percent approval rate, according to State Department data.

In his ruling, Judge Donato cited a declaration by a former
consular officer who said, "We were not allowed to exercise that
discretion" and that "There really is no waiver." A sample waiver
letter with a pre-checked "denied" box also supported the
plaintiff's allegations as plausible, Judge Donato added.

However, the judge dismissed with leave to amend claims that the
waiver system violated plaintiffs' Fifth Amendment rights to equal
protection and due process. He found entry into the country is not
one of the "constitutionally protected fundamental rights."

On allegations that mass waiver denials were motivated by bigotry,
Judge Donato said that claim only holds up if President Donald
Trump's travel ban "unconstitutionally excludes Muslims or
illegally discriminates on the basis of nationality, a proposition
that the Supreme Court turned aside in Hawaii."

The Supreme Court upheld the travel ban in Trump v. Hawaii in June
2018, finding the president has clear authority to restrict the
entry of aliens whenever he finds their entry "would be detrimental
to the interests of the United States."

Ms. Shebaya of Muslim Advocates said her team will continue the
fight in court to make sure the government administers the travel
ban waiver process in a fair and unbiased way.

"When the government holds itself out as providing a waiver
process, it has to keep that promise, and we will continue to fight
to ensure that families and individuals covered by the ban are not
cheated out of their one shot at being reunited with their families
and loved ones," Ms. Shebaya said.

The U.S. Department of Justice did not immediately return an email
seeking comment on Feb. 4.

Countries subject to the travel ban include Iran, Libya, North
Korea, Somalia, Syria, Venezuela and Yemen.

An amended complaint was due by Feb. 25. [GN]


W.D. HENRY: Court Stays AWPA Suit Pending Summary Judgment Bid
--------------------------------------------------------------
The United States District Court for the Western District of New
York issued a Decision and Order granting Defendants' Motion to
Stay in the case captioned ROLANDO DIAZ REYES, HECTOR IVAN BURGOS
RIVERA, JOSE A. GARCIA MARRERO, KIDANNY JOSUE MARTINEZ REYES, EDWIN
COSME COLON, and on behalf of all similarly situated persons,
Plaintiffs, v. W.D. HENRY & SONS, INC., HENRY REALTY ASSOCIATES,
INC., DANIEL HENRY, MARK C. HENRY, Defendants. No. 18-CV-1017V(F).
(W.D.N.Y.).

The Defendants filed, pursuant to Fed.R.Civ.P. 26(c), a motion to
stay discovery pending the court's decision on the Defendants'
summary judgment motion.

The Plaintiffs bring this collective and class action alleging
violations of the Migrant and Seasonal Agricultural Workers
Protection Act (AWPA), the Fair Labor Standards Act (FLSA), related
provisions of the New York Labor Law (NYLL) and breach of contract.
The gravamen of Plaintiffs' alleged violations is that Defendants,
during the 2017 and 2018 growing season, improperly displaced
Plaintiffs, residents of Puerto Rico, considered to be domestic
farm workers for purposes of the AWPA, as Defendants' farm workers
engaged in planting and harvesting of crops, fruits and vegetables
at Defendants' local family-owned 300 acre farm and discriminated
against Plaintiffs and similarly situated domestic farm workers as
domestic farm workers protected by the AWPA, FLSA and NYLL with
respect to the terms and conditions of seasonal farm employment
including hourly wage rates, hours of work, choice of work
assignments, housing accommodations, and reimbursement of travel
expenses, by substituting and favoring non-domestic.

The Plaintiffs served the Plaintiffs' First Set of Interrogatories
and Document Requests pursuant to Fed.R.Civ.P. 26(f) prior to a
November 28, 2018 conference in which the parties participated. The
Defendants did not respond to the Plaintiffs' discovery requests
which seek information and documents for a class period, the
Defendants filed Defendants' Motion for Summary Judgment , together
with Defendants' Statement of Material Facts.

A request to stay discovery pursuant to Fed.R.Civ.P. 26(c) requires
a showing of good cause and is within the sound discretion of the
court. A finding of good cause for a stay of discovery requires the
court to balance several relevant factors including the pendency of
a dispositive motion, potential prejudice to the opposing party,
the extensiveness of the requested discovery, and the burden of
such discovery on the requested parties. A stay of discovery is
proper where the pending dispositive motion appears to show
substantial grounds or does not appear to be without foundation in
law. The Defendants' motion for summary judgment is based on a
plethora of business records (approximately 2,600 pages) purporting
to rebut Plaintiffs' allegations that Defendants discriminated
against Plaintiffs as domestic farm workers regarding hours of
work, wage rates, terms and conditions of employment such as
promised work assignments and bonuses, housing accommodations, and
reimbursement of travel expenses. Defendants' records also document
Plaintiffs' employment history including hiring and voluntary and
involuntary terminations.  

Here, the court's review of the voluminous record in support of
Defendants' motion for summary judgment indicates Defendants'
motion for summary judgment has substantial merit. Foremost is that
the gist of Plaintiffs' claims arise from Defendants' alleged
discriminatory treatment of Plaintiffs as protected domestic farm
workers with respect to wages and hours of their employment with
Defendants.

In support of summary judgment Defendants have filed copies of
Defendants' payroll and related hiring records pertaining to
Plaintiffs' services with Defendants and Defendants' H-2A workers
to refute in detail, nearly all, if not all, of Plaintiffs'
allegations regarding this core issue. Plaintiffs' attempt to
demonstrate their need for plenary discovery, represented in part
by Plaintiffs pending discovery requests, by pointing out that
Defendants' heavy reliance on documents of questionable provenance,
requires Plaintiffs be given an opportunity to challenge the
authenticity of Defendants' documents by requiring Defendants'
responses to Plaintiffs' discovery requests and, presumably,
deposition questions or, at a minimum by making specific discovery
requests pursuant to Fed.R.Civ.P. 56(d)(2).

As to the potential prejudice Plaintiffs may suffer in the event
Defendants' motion for a stay of discovery were granted, as
discussed, see, supra, at 4-8, the merits of Defendants' summary
judgment request will turn on Plaintiffs' ability to undermine the
veracity of the plethora of Defendants' business records submitted
in support of summary judgment, including Defendants' requests for
DOL approval of Defendants' H-2A workers as well as records
regarding Plaintiffs' hiring and terminations of Plaintiffs'
employment with Defendants. Assuming Plaintiffs will, as
Plaintiffs' represent, proceed with an application for targeted
discovery necessary to oppose Defendants' summary judgment request,
Plaintiffs will suffer no substantial prejudice if Defendants'
motion to stay to prevent more generalized discovery is granted.

As to the relative burdens of discovery, while it is true, as
Plaintiffs contend, that in filing Defendants' voluminous records
in support of summary judgment, Defendants have already incurred
substantial time and effort, nevertheless Plaintiffs' discovery
requests put forth 210 separate demands that will significantly
interfere with Defendants' ability to operate their farm at the
present time.  

Nor is there any merit to Plaintiffs' contention that unless full
discovery is permitted to proceed at this time to the extent
requested by Plaintiffs, Plaintiffs will be prejudiced in
Plaintiffs' ability to obtain injunctive relief before the 2019
growing season commences in approximately 90 days. However,
Plaintiffs' argument overlooks the fact that even assuming
Defendants' motion to stay were denied, Defendants still would be
entitled to respond to Plaintiffs' numerous discovery requests with
formal objections, similar to Defendants' contentions of lack of
relevancy and the proportionality mandated by Fed.R.Civ.P. 26(b)(1)
of Plaintiffs' discovery requests as argued in Defendants' motion
for a stay, requiring probable motion practice by Plaintiffs to
compel Defendants' responses which would in turn necessitate likely
judicial intervention and subsequent decisions, a process also
likely to consume a substantial amount of time thus creating the
same tension in Plaintiffs' ability to promptly seek and obtain
such putative injunctive relief.

Notably, Plaintiffs have not sought such relief to date.
Significantly, it is also not the case that Plaintiffs will at this
time be left without any discovery responsive to Plaintiffs'
outstanding discovery requests, particularly Plaintiffs' document
requests.  

Accordingly, the Defendants' motion to stay is granted.

A full-text copy of the District Court's February 7, 2019 Decision
and Order is available at https://tinyurl.com/y568kpv2 from
Leagle.com.

Rolando Diaz Reyes, Hector Ivan Burgos Rivera, Jose A. Garcia
Marrero, Kidanny Josue Martinez Reyes & Edwin Cosme Colon, and on
behalf of all other similarly situated persons, Plaintiffs,
represented by John Anthony Marsella, Worker Justice Center of New
York & Robert David McCreanor, Worker Justice Center of New York.

Jose Miguel Mass, Jose Ortiz Burgos & Jose A. Torres Rodriguez,
Plaintiffs, represented by John Anthony Marsella, Worker Justice
Center of New York.

W. D. Henry & Sons, Inc., Henry Realty Associates, Inc., Daniel
Henry & Mark C. Henry, Defendants, represented by Chaim J. Jaffe --
cjaffe@scolaro.com -- Scolaro Fetter Grizanti McGough & King, P.C.
& Douglas J. Mahr -- dmahr@scolaro.com -- Scolaro Fetter Grizanti
McGough & King, P.C.


YANDY LLC: Garey Asserts Breach of Disabilities Act
---------------------------------------------------
Yandy, LLC,  is facing a class action lawsuit filed pursuant to the
Americans with Disabilities Act. The case is styled Kevin Garey, on
behalf of himself and all others similarly situated, Plaintiff v.
Yandy, LLC, Defendant, Case No. 1:19-cv-01909 (S.D. N.Y., February
28, 2019).

Yandy LLC offers online lingerie and costume retail services. The
company offers wedding lingerie, Halloween costumes, hosiery,
dancewear, swimwear, shoes, dresses, wigs, thongs, g-strings,
panties, stockings, bras, fishnets, and pasties. Yandy LLC was
founded in 2005 and is based in Phoenix, Arizona.[BN]

The Plaintiff is represented by:

   Jonathan Shalom, Esq.
   Shalom Law, PLLC
   124-04 Metropolitan Avenue
   Kew Gardens, NY 11374
   Tel: (516) 807-1748
   Email: jshalom@jonathanshalomlaw.com

ZOGSPORTS HOLDINGS: 2 Volunteers Classes Certified in Ernst Suit
----------------------------------------------------------------
The Honorable R. Gary Klausner grants the Plaintiffs' Motion for
Class Certification in the lawsuit entitled Keith Ernst, et al. v.
ZogSports Holdings LLC, Case No. 2:18-cv-09043-RGK-MRW (C.D.
Cal.).

Specifically, Judge Klausner:

   (1) certifies the case as a class action pursuant to Rule 23
       of the Federal Rules of Civil Procedure for the California
       Class, defined as:

       "All persons who worked as unpaid volunteers during any
        football game organized or conducted by Defendant, in
        California, at any time from September 20, 2014 through
        and including the date judgment is rendered in this
        matter";

   (2) conditionally certifies the case as a collective action
       pursuant to the Fair Labor Standards Act on behalf of the
       FLSA Class, defined as:

       "All persons who worked as unpaid volunteers during any
        football game organized or conducted by Defendant, in the
        United States, at any time from September 20, 2015
        through and including the date judgment is rendered in
        this matter";

   (3) appoints Keith Ernst, Arthur Oganesyan and Alan Nah as
       Class Representatives;

   (4) appoints Danny Yadidsion, Esq., of the law firm Labor Law
       PC as Class Counsel;

   (5) directs the Defendant to produce a class list to the
       Plaintiff's counsel within 14 calendar days from the date
       of this Order; and

   (6) directs the Parties to meet and confer regarding the class
       notice and collective notice, and submit final agreed upon
       notices to the Court within 14 calendar days from the date
       of this Order.[CC]

The Plaintiffs are represented by:

          Danny Yadidsion, Esq.
          LABOR LAW PC
          100 Wilshire Blvd., Suite 700
          Santa Monica, CA 90401-3602
          Telephone: (310) 494-6082
          Facsimile: (877) 775-2267
          E-mail: danny@laborlawpc.com



                            *********

S U B S C R I P T I O N   I N F O R M A T I O N

Class Action Reporter is a daily newsletter, co-published by
Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania,
USA, and Beard Group, Inc., Washington, D.C., USA.  Rousel Elaine T.
Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L.
Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors.

Copyright 2019. All rights reserved. ISSN 1525-2272.

This material is copyrighted and any commercial use, resale or
publication in any form (including e-mail forwarding, electronic
re-mailing and photocopying) is strictly prohibited without prior
written permission of the publishers.

Information contained herein is obtained from sources believed to
be reliable, but is not guaranteed.

The CAR subscription rate is $775 for six months delivered via
e-mail. Additional e-mail subscriptions for members of the same
firm for the term of the initial subscription or balance thereof
are $25 each. For subscription information, contact
Peter A. Chapman at 215-945-7000.

                   *** End of Transmission ***