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/raid1/www/Hosts/bankrupt/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. 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