/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/190314.mbx C L A S S A C T I O N R E P O R T E R Thursday, March 14, 2019, Vol. 21, No. 53 Headlines 3M COMPANY: Mathis Says Combat Arms Earplugs Defective ALINA SERVICES: Langston Seeks to Recoup Overtime Pay Under FLSA ALPHASTAFF INC: Rice Sues Over Unpaid Overtime Compensation ANTHEM: Has Yet to Respond to Pathway Insurance Class Action BANK INDEPENDENT: Gamez Files Civil Rights Suit in Calif. BP EXPLORATION: Court Stays E. Avila's Physical Injury Suit CANADA: Settles Employment Insurance Sickness Benefits Case CASSENA CARE: Olsen Suit Asserts Disabilities Act Breach COMCAST CABLE: Azeveda Sues Over Missed Breaks, Unpaid Overtime COMHAR GROUP: Perez Seeks Unpaid Minimum & Overtime Wages CONVERGENT OUTSOURCING: Davis Files FDCPA Suit in E.D. Calif. COOPERSURGICAL, INC: Sawyer Seeks Class Certification CORAL TINT AND ACCESSORIES: Devivo Hits Illegal SMS Ad Blasts CORNING CORP: Seyfarth Shaw Attorneys Discuss Court Ruling COX COMMUNICATIONS: Appeals Class Cert. Order in Knapper Suit CRUS-Z FAMILY CORP: Martinez Seeks Unpaid Minimum, Overtime Pay CVR REFINING: Common Units Being Sold Too Cheaply, Bonnell Says CVR REFINING: Graulich Alleges Breach of Call Right DELAWARE, PA: Beamer Granted Leave to Proceed in Forma Pauperis ENTERPRISE HOLDINGS: Kramer Class Suit Removed to N.D. California EPIC GAMES: Krohm Sues over Theft of Fortnite Gamers' Data EVERQUOTE INC: Townsend Files IPO-related Class Action FLAGSTAR BANK: Court Converts Dismissal Bid to Summary Judgment Bid FRONTIER ACCESS: Green Claims Compensation for Missed Breaks GANNETT CO: Dispute Over Pella Class Action Settlement Ongoing GC SERVICES: Bonoan Sues for TCPA Breach Over Autodialed Calls GEICO CASUALTY: Butta Suit Moved to Eastern Dist. of Pennsylvania GENERAL MILLS: Settlement in Weninger FLSA Suit Has Prelim Approval GET FRESH: Collects Biometric Info Without Consent, Ralph Claims GRAIN PROCESSING: Settles Class Action Over Nuisance Emissions HIGH MAY: Accused by Gao of Not Paying Minimum and Overtime Wages HOT CHICKS: Raham Seeks Minimum Wages & Overtime Pay INLAND PRODUCTS: Court Enlarges Time to Respond to Dismissal Bid J.C. PENNEY: Court Dismiss Class Action Claims in Garrido JACKSON, TN: Sued Over Failure to Properly Sworn in Warrants JAY'S LANDSCAPING: Fitchborn Seeks Unpaid Wages Under FLSA JL AUDIO: Bishop Files ADA Suit in New York JOHNSON & JOHNSON: Allowed to Block Mandatory Arbitration JONATHAN NEIL: Court Vacates Hearing Schedule in Brown KHODAL MAA INC: Mayo Labor Suit Seeks Unpaid Overtime Wages KINDRED HEALTHCARE: Stonehocker Seeks OT Pay for Skilled Clinicians KOHL'S DEPARTMENT: Court Grants Jury Trial in J. Underwood Suit L PLUS L: Zamora Seeks Minimum & OT Pay for Restaurant Staff LIGHTHOUSE MARINA: Faces Bishop Suit Alleging ADA Breach LOUIS MARINE: Bishop Files ADA Suit in S.D. New York MARTIN-BROWER CO: Court OKs Cy Pres Beneficiary in J. Titus Suit MAUI JIM: Bishop Alleges Violation under Disabilities Act MAXWELL TECHNOLOGIES: Leggett Files Suit Over Sale to Tesla MDL 2875: Valsartan Products Liability Litigation to D.N.J. MIDLAND BOAT: Faces Bishop Suit Asserting ADA Violation MIDLAND CREDIT: Moore Suit Moved to Eastern District of New York MOLSON COORS: Mathes Sues over Misleading Finacial Report MONSANTO COMPANY: Jung Sues for Injury Over Roundup Exposure MONTAUK YACHT: Bishop Alleges Violation under Disabilities Act MRS BPO: Violates TCPA, Giles Suit Alleges MY ROULA INC: Perros Hits Missed Breaks, Claims Overtime Pay NATIONAL COLLEGIATE: McCormick Files Class Suit in N.D. Illinois NATIONWIDE CREDIT: Dash Suit Moved to Eastern District of New York NATIONWIDE CREDIT: Demartino Suit Moved to E.D. New York NCAA: Keith Williams Sues over Safety of Concord Student-Athletes NCAA: Kerns Sues over Safety of IUB Student-Athletes NCAA: Milburn Sues over Safety of Toledo Student-Athletes NCAA: Murray Sues over Safety of OSU Student-Athletes NCAA: Pinkney Sues over Safety of WSU Student-Athletes NCAA: Stewart Sues over Safety of Cincinnati Student-Athletes NEXTGEAR CAPITAL: Class Action Improperly Decertified, Court Says NORTHROP: Allen Sues for Fraud and Negligent Misrepresentation ONE FIFTY: N.Y. App. Div. Affirms Summary Judgment Denial in Maor OSBORN CORRECTIONAL: Toliver et al Seek to Certify Class & Subclass PARED INC: Feldman Files Suit Under TCPA Over Spam Ads PF STOCKTON: Blumenthal Nordrehaug Files Class Action PHILIP MORRIS: Letourneau Suit in Canada Still Ongoing PHILIP MORRIS: Smoker Health Defense Association's Suit Ongoing PINNACLE ENTERTAINMENT: Lockett Seeks to Recover Minimum/OT Wages POPSUGAR: Must Face Fashion Blogger's Class Action PREFERRED HOME: Hyppolite Seeks Minimum & Overtime Pay PROGRESSIVE UNIVERSAL: Thompson Files Class Action in Wisconsin PURPLE COMMUNICATIONS: Does Not Properly Pay Workers, Jucha Says REGIONAL ONE: Aleman Labor Suit to Recover Unpaid Overtime REIMER LAW: N.D. Ohio Strikes Class Claims in Glazer FDCA Suit RELIANT WIRING: Campos Action Seeks to Recover Overtime Pay RENT-A-CENTER INC: Court Dismisses Usury Claim in P. Blair's Suit SAIGON CAFE: Cortez Labor Suit Seeks Unpaid Overtime Premium SAKS INCORPORATED: N.Y. App. Div. Affirms Amendment Leave Denial SALOMON SMITH: Alston Attorneys Discuss New Class Action Theory SC ENVIRONMENTAL: Unger et al. Seek Unpaid Overtime Premium SELIP & STYLIANOU: Court Denies Bid to Dismiss Tompkins FDCPA Suit SHOEDAZZLE.COM: Website not Accessible to Blind, Dawson Says SIDESHOW INC.: Website not Accessible to Blind, Dawson Says SILDAN CORPORATION: Olsen Files ADA Class Action in NY SITEL OPERATING: Foster Suit Transferred to M.D. Tennessee SMITH COUNTY, TX: Faces Class Action Over Voter Registration List SOGOU INC: Bishop Sues over Misleading Securities Statements SOGOU: Investors Sue Over Failure to Disclose Regulatory Issues SPIN THE PLANET: Court Narrows Claims in Thompson Wage & Hour Suit SUNRISE INFINITI: Martello Seeks Unpaid Wages & Overtime Pay THAI TASTE: Barajas Seeks to Recover Minimum and Overtime Wages TRACFONE: Faces TCPA Class Action Over Ad Texts TRAVELPORT WORLDWIDE: Franchi Challenges Sale to Siris Capital TRIBECA AUTOMOTIVE: J. Roberts' Suit Remanded to NJ State Court U.S. SECURITY ASSOCIATES: Amaral Suit Claims Unpaid Overtime UBER TECHNOLOGIES: Seeks Dismissal of Class Action UNITED FEDERAL: Court Grants Prelim Approval of Gunter Settlement UNITED STATES: Court Issues Injunctive Relief in K. Tiwari Suit UNITED STATES: ICE Faces Class Action Over Video Teleconferencing US ZHIMINGDE: Ruixue Fan Files Securities Class Action in NY UXIN LIMITED: Faces Chiu Suit over 50% Drop in Share Price VALE SA: Minas Gerais to Sue Over Brumadinho Dam Disaster WE SUPERLATIVE: Olsen Asserts Breach of Disabilities Act WEST 171: Court Certifies Rent Fraud Suit as Class Action [*] BakerHostetler Issues Q4 2018 Insurance Class Action Update [*] Competition Bureau, DPP Revise Immunity and Leniency Programs [*] Dechert Attorneys Examine Life Sciences Securities Suits ********* 3M COMPANY: Mathis Says Combat Arms Earplugs Defective ------------------------------------------------------ A case, NATHANIEL MATHIS, on behalf of himself and all others similarly situated, the Plaintiff, vs. 3M COMPANY, the Defendant, Case No. 1:19-cv-20606-UU (S.D. Fla., Feb. 15, 2019), seeks to: (1) establish a Court-supervised fund to provide medical monitoring to active-duty and veteran service members of the armed forces of the United States of America due to their increased risk from using 3M's defective products, and (2) on behalf of himself and all other similarly- situated individuals, for personal injuries incurred while in training and/or on active military duty, resulting from Defendant's defective and unreasonably dangerous product, the Dual-ended Combat Arms (TM) earplugs (Version 2 CAEv.2). The case is a civil action arising out of serious and permanent personal injuries sustained by the Plaintiff, a veteran of the United States military, while in training and/or on active military duty domestically and abroad. The Plaintiff used Defendant's dangerously defective Dual-ended Combat Arms (TM) earplugs while deployed in Iraq and during other training and combat exercises. The Defendant sold the Dual-ended Combat Arms (TM) earplugs to the U.S. military for more than a decade without the military and/or the Plaintiff having any knowledge of the defect(s) and failed to adequately warn the military and/or the Plaintiff of the defect(s). According to the complaint, Defendant's Dual-ended Combat Arms (TM) earplugs were standard issue in certain branches of the military (including the Plaintiff's) between at least 2003 to at least 2015. Thus, Defendant's Dual-ended Combat Arms (TM) earplugs have likely caused thousands, if not millions, of soldiers to suffer significant hearing loss, and additional injuries related to hearing loss, including but not limited to pain and suffering and loss of the pleasures of life. The Defendant is in the business of designing, manufacturing, and selling worker safety products, including hearing protectors and respirators. Defendant has a dominant market share in virtually every safety product market, including hearing protection.[BN] Attorneys for the Plaintiff and the Class Adam M. Moskowitz, Esq. Howard M. Bushman, Esq. Adam A. Schwartzbaum, Esq. Joseph M. Kaye, Esq. THE MOSKOWITZ LAW FIRM, PLLC Alhambra Plaza, Suite 601 Coral Gables, FL 33134 Telephone: (305) 740-1423 E-mail: adam@moskowitz-law.com howard@moskowitz-law.com adams@moskowitz-law.com joseph@moskowitz-law.com - and - R. Seth Crompton, Esq. HOLLAND LAW FIRM, LLC 300 N. Tucker Blvd., Suite 801 St. Louis, MO 63101 Telephone: 314 241-8111 Facsimile: 314 241-5554 E-mail: scrompton@allfela.com ALINA SERVICES: Langston Seeks to Recoup Overtime Pay Under FLSA ---------------------------------------------------------------- YOLANDA LANGSTON, on behalf of herself and similarly situated individuals v. ALINA SERVICES CORP, IRIDIUM SERVICES CORP., and IGOR KOMSKY, Case No. 1:19-cv-01043 (E.D.N.Y., February 21, 2019), alleges that pursuant to the Fair Labor Standards Act and the New York Labor Law, the Plaintiff and the class are entitled to recover from the Defendants unpaid wages at the overtime wage rate and other damages. Alina Services Corp. and Iridium Services Corp. are domestic business corporations, organized and existing under the laws of the state of New York, with a place of business located in Douglaston, New York. Igor Komsky is an owner, officer, director and/or managing agent of the Defendant Corporations. The Defendants provide transportation services.[BN] The Plaintiff is represented by: Lawrence Spasojevich, Esq. LAW OFFICES OF JAMES F. SULLIVAN, P.C. 52 Duane Street, 7th Floor New York, NY 10007 Telephone: (212) 374-0009 Facsimile: (212) 374-9931 E-mail: ls@jfslaw.net ALPHASTAFF INC: Rice Sues Over Unpaid Overtime Compensation ----------------------------------------------------------- Jack Rice and Randy Banfi, individually and on behalf of all similarly situated individuals, Plaintiffs, v. AlphaStaff, Inc. and David Jefferson, Sr., personally and individually, Defendants, Case No. 1:19-cv-01387 (N.D. Ill., February 26, 2019) is a Class and Collective Action brought by Plaintiffs on behalf of themselves and those similarly situated call center employees who were employed at the Defendants' call center locations in Northern Illinois, to recover for the Defendants' willful violations of the Fair Labor Standards Act ("FLSA"), the Illinois Minimum Wage Law ("IMWL"), and the Illinois Wage Payment and Collection Act ("IWPCA"). Plaintiffs and those similarly situated, worked more than 40 hours per workweek without receiving the proper overtime pay for all their overtime hours worked in violation of the FLSA and the Illinois wage and hour laws. This improper calculation of the overtime pay rate was a result of Defendants' willful failure to include commissions earned in calculating Plaintiffs' proper overtime premium pay rate, says the complaint. Plaintiffs were jointly employed by Defendants as an hourly CCA from on, or around, April 2, 2018, until on, or around October 11, 2018. AlphaStaff was involved in the development and implementation of ServiCom's human resource policies and payroll practices.[BN] The Plaintiffs are represented by: Peter J. Flowers, Esq. MEYERS & FLOWERS, LLC 3 North Second Street, Suite 300 St. Charles, IL 60174 Phone: (630) 232-6333 Facsimile: (630) 845-8982 - and - Timothy J. Becker, Esq. Molly E. Nephew, Esq. JOHNSONBECKER, PLLC 444 Cedar Street, Suite 1800 St. Paul, MN 55101 Phone: (612) 436-1800 Fax: (612) 436-1801 Email: tbecker@johnsonbecker.com mnephew@johnsonbecker.com ANTHEM: Has Yet to Respond to Pathway Insurance Class Action ------------------------------------------------------------ Mary Inman, Esq., writing for RACmonitor Compliance, reports that individual policyholders in Georgia launch a class-action lawsuit against Anthem for deceptive sales. Frances Kirby and John David Marks, two individual policyholders from Cook County, Georgia, filed a class-action lawsuit in federal court in Atlanta against Anthem and Blue Cross Blue Shield of Georgia for allegedly misleading them and thousands of other similarly situated consumers in the sale of Anthem's Pathway health insurance plans. Pathway is a product available through a Patient Protection and Affordable Care Act Health Care Exchange for consumers seeking individual and family health insurance policies. The gravamen of the complaint is that during the most recent open enrolment period, from Nov. 1 to Dec. 15, 2018, Anthem allegedly fraudulently induced Georgia consumers to buy Anthem's individual health coverage by falsely representing that WellStar Health System, Inc., Georgia's largest healthcare provider, was an in-network covered provider -- when in fact, Anthem allegedly had notified WellStar several months earlier, in August 2018, that WellStar services would no longer be covered by the Pathway plan. The complaint alleges the following as ranking among the deceptive business practices in which Anthem engaged: Throughout the enrollment period, the "provider finder" tool on Anthem's website included WellStar doctors and hospitals as in-network providers, despite the company knowing they would not be in-network after Feb. 4, 2019, one month after the new policy was issued; To enroll for Anthem's Pathway individual insurance plan, new policyholders were required to select a primary care physician (PCP), and WellStar doctors were included among the list of qualifying PCPs policyholders could choose; and In some instances, Anthem issued health insurance cards to plaintiffs that included the name of a WellStar doctor on the card, while failing to inform consumers that the coverage would be terminated and those PCPs would no longer be in-network on Feb. 4, 2019. The plaintiffs appear to take particular umbrage at the contention that Anthem never communicated clearly about the fact that the WellStar contract would be canceled one month into the new policy period, meaning WellStar providers would no longer be available. Instead, the complaint alleges, policyholders had to learn this news from their WellStar providers and/or the public statement WellStar issued indicating that WellStar services no longer were being covered by Anthem/Blue Cross Blue Shield's Pathway plan. If the allegations are proved, the consequences for individual consumers could be significant. According to the complaint, the two named plaintiffs both have significant health issues, requiring them to be seen regularly by their WellStar PCPs and a large number of WellStar specialists. The plaintiffs allege they only chose Anthem over their previous health insurer after confirming that their WellStar primary care physicians and specialists and WellStar hospital were represented as in-network. They will experience a lapse in treatment as they seek to secure other in-network providers (from a provider list that is sparse due to the elimination of the WellCare providers) and will have to travel 25 miles to the next-closest covered hospital, the complaint alleges. Since the open enrollment period is now closed, the plaintiffs also allege that consumers are locked into their Pathway plans under November 2019 and will continue to pay premiums for a health insurance product with fewer providers and hospitals, which many would not have purchased had they known the truth: that WellStar would not be in-network. Since the case was only filed recently, RACmonitor Compliance has not had an opportunity to hear Anthem's response to the allegations. Anthem announced that it was extending benefits regarding WellStar PCPs for another 90 days, until May 4, 2019. Media outlets such as Becker's Hospital Review and the Atlanta Journal-Constitution are reporting that this change came at the prodding of the Georgia Department of Insurance, which governs whether health insurers are meeting legal standards with their policy offerings. RACmonitor Compliance will continue to monitor this case as it develops, including as the defendants respond and the plaintiffs move the court to get a Georgia class certified. [GN] BANK INDEPENDENT: Gamez Files Civil Rights Suit in Calif. --------------------------------------------------------- A class action lawsuit has been filed against Bank Independent. The case is styled as Joshua Gamez individually, and on behalf of all others similarly situated, Plaintiff, v. Bank Independent, an Alabama corporation, Does 1-10, Inclusive, Defendants, Case No. 2:19-cv-01421 (C.D. Cal., Feb. 26, 2019). The nature of suit is stated as Other Civil Rights. Bank Independent provides personal and business banking products and services to communities in Alabama.[BN] The Plaintiff is represented by: Scott J Ferrell, Esq. Pacific Trial Attorneys APC 4100 Newport Place Drive Suite 800 Newport Beach, CA 92660 Phone: (949) 706-6464 Fax: (949) 706-6469 Email: sferrell@pacifictrialattorneys.com BP EXPLORATION: Court Stays E. Avila's Physical Injury Suit ----------------------------------------------------------- The United States District Court for the Eastern District of Louisiana issued an Order granting Plaintiff Ermid Avila's Motion to Stay in the case captioned ERMID F. AVILA, v. BP EXPLORATION & PRODUCTION, INC., et al., SECTION: "G" (1). Civil Action Case No. 18-6081. (E.D. La.). The Plaintiff filed a Complaint against Defendants BP Exploration & Production Inc. and BP America Production Company, alleging that exposure to crude oil and other hydrocarbons following the BP oil spill, which occurred in the Gulf of Mexico on April 20, 2010, caused the Plaintiff chronic conjunctivitis and chronic pharyngitis. The Plaintiff brings this action pursuant to the Back End Litigation Option (BELO) of the Deepwater Horizon Medical Benefits Class Action Settlement Agreement (MSA) entered in the Deepwater Horizon Oil Spill Litigation, MDL 2179. The MSA provides the sole remedy to certain class members, including oil spill clean-up workers like Plaintiff, to sue Defendants for Later-Manifested Physical Conditions (LMPC) as defined by the MSA. Plaintiff's Arguments in Support of the Motion to Stay The Plaintiff argues that a stay is warranted in this case because there are additional LMPCs that may be added to this litigation at a later date, and a stay would aid the Court in efficiently adjudicating all claims. Plaintiff states that on August 6, 2018, he submitted a new NOIS to the Claims Administrator regarding two additional LMPCs for chronic diarrhea and Gastroesophageal Reflux Disease (GERD). The Plaintiff contends that if the Claims Administrator decides that the NOIS complies with the MSA, the Claims Administrator will send the NOIS to Defendants for their decision on whether or not to mediate the claims. The Plaintiff states that the Claims Administrator has not yet informed him of whether the Defendants will mediate the new LMPCs, and thus, he remains unsure whether he will later seek leave to amend the complaint. The Plaintiff insists that it would be duplicative and inefficient for the parties to conduct discovery and then seek leave to amend the complaint after the case has significantly progressed. The Plaintiff contends that it would be premature for the parties to conduct the scheduling conference before the Claims Administrator approves the additional medical conditions, issues a valid NOIS, and BP Defendants decide whether to mediate. Defendants' Arguments in Opposition to the Motion to Stay The Defendants argue that the Court should deny the Plaintiff's request for a stay because the purported ground for the motion is factually inaccurate and legally without merit. First, the Defendants assert that the Plaintiff misrepresents the new NOIS because it lists only chronic diarrhea, not GERD. The Defendants also allege that chronic diarrhea and GERD are not new conditions because both were listed on the medical form that Plaintiff submitted for his first NOIS in 2013. The Defendants aver that under the MSA, a claim for an injury or illness may be alleged in a BELO lawsuit only if the Plaintiff has first satisfied all of the MSA's conditions precedent. One of those conditions precedent is submission of a timely NOIS to the Claims Administrator. An NOIS is timely only if it was submitted within four years of the date the physical condition was first diagnosed or the MSA's effective date (February 12, 2014), whichever is later. The Defendants argue that because chronic diarrhea and GERD were listed on the Plaintiff's medical form dated February 28, 2013, he was required to file a claim regarding these conditions by February 12, 2018, four years from the effective date of the MSA. Therefore, the Defendants argue that the Plaintiff's second NOIS will be denied by the Claims Administrator as untimely and there will be no additional claims added to the case. Plaintiffs' Arguments in Further Support of the Motion to Stay In reply, the Plaintiff argues that the Court should issue a stay in the case because the second NOIS does not include untimely claims, the claims may be added at a later date, and proceeding with the case would create hardship for the parties and the Court. The Plaintiff contends that acute diarrhea was listed on his February 28, 2013 medical record, but the record clearly indicated that there was only a complaint of this condition, not a diagnosis. The Plaintiff asserts that since his 2013 examination, the diarrhea has worsened over time and is now officially diagnosed as a chronic condition. The Plaintiff also alleges that the 2013 medical record listed stomach function disorder as a condition he complained of, but this condition, which was also not diagnosed, is different from the GERD diagnosis that is included on the new NOIS. Therefore, the Plaintiff argues that chronic diarrhea and GERD are newly diagnosed conditions, and the second NOIS was not untimely. Defendants' Arguments in Further Opposition to the Motion to Stay In the sur-reply, the Defendants argue that the Plaintiff has not proven that he is entitled to a stay in this case. The Defendants contend that the Plaintiff has not provided the Court with documentation proving his new diagnoses because the Plaintiff failed to include evidence of his new conditions or the date of their diagnosis in either his motion or his reply. The Defendants aver that because the Plaintiff has failed to provide evidence of his alleged conditions, he has not shown that he has satisfied the conditions precedent for another BELO lawsuit under the MSA. The Defendants argue that this is fatal to the Plaintiff's motion. The Defendants also argue that the Plaintiff cannot meet the legal standards for a stay because he did not meet his. Pursuant to United States Supreme Court and Fifth Circuit precedent, it is well settled that a district court has the inherent power to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants, and that this authority includes the district court's wide discretion to grant a stay in a pending matter. The Supreme Court has instructed that a party requesting a stay must make out a clear case of hardship or inequity in being required to go forward if there is even a fair possibility that the stay would harm another party. Here, the Court finds that the Plaintiff has shown that a stay of this matter is warranted. Under the MSA, claimants are only allowed to file a BELO action after the Claims Administrator determines that the NOIS complies with the terms of the MSA and the Defendants decline to mediate. The Plaintiff submitted his second NOIS to the Claims Administrator on August 6, 2018. The Claims Administrator has not yet rendered a determination on whether this second NOIS complies with the terms of the MSA, and the Defendants have not decided whether they will elect to mediate. Under the terms of the MSA, the Plaintiff cannot move to amend the complaint to raise these claims in this Court or file a new BELO action until after that process is complete. Allowing the case to proceed before this process is complete could result in duplicative litigation, and it is unclear whether Plaintiff would be barred from raising these claims in subsequent litigation. Therefore, the Court finds that a stay would promote judicial economy and efficient administration of this case. The Defendants argue that a stay is not warranted because the Plaintiff's second NOIS was untimely and will be denied by the MSA Claims Administrator. In reply, the Plaintiff contends that the second NOIS was timely filed because chronic diarrhea and GERD are newly diagnosed conditions, and the second NOIS was not untimely. The MSA Claims Administrator will make an initial determination as to whether these claims were timely filed and comply with the MSA. The Plaintiff cites a decision by another district court in the Eastern District of Louisiana which sets forth three factors district courts consider in deciding whether to stay a case pending a determination on whether the case will be consolidated with other cases by the Judicial Panel on Multidistrict Litigation. These factors include: (1) potential prejudice to the non-moving party; (2) hardship and inequity to the moving party if the action is not stayed; and (3) the judicial resources that would be saved by avoiding duplicative litigation if the cases are in fact consolidated. Although not directly applicable here, these factors also weigh in favor of granting the motion to stay. Defendants have not alleged that they would be prejudiced by a stay, whereas Plaintiff could be prejudiced if this action is not stayed. Furthermore, staying the case would avoid duplicative litigation. The Court will exercise its discretion and stay this matter pending a decision of the Claims Administrator on whether Plaintiff's second NOIS complies with the MSA and notification regarding Defendants' election on whether to mediate the claims raised in Plaintiff's second NOIS. Accordingly,Plaintiff Ermid Avila's Motion to Stay is granted. A full-text copy of the District Court's February 11, 2019 Order is available at http://tinyurl.com/y6dld93wfrom Leagle.com. Ermid F. Avila, Plaintiff, represented by Craig Downs, Downs Law Group, PA, Nathan Lee Nelson, Downs Law Group, PA & Vanessa Elizabeth Diaz, Downs Law Group, PA. BP America Production Company & BP Exploration & Production, Inc., Defendants, represented by Russell Keith Jarrett -- rkjarrett@liskow.com -- Liskow & Lewis, pro hac vice, Charles B. Wilmore -- cbwilmore@liskow.com -- Liskow & Lewis, pro hac vice, Devin C. Reid -- dcreid@liskow.com -- Liskow & Lewis, pro hac vice & Don Keller Haycraft -- dkhaycraft@liskow.com -- Liskow & Lewis. CANADA: Settles Employment Insurance Sickness Benefits Case ----------------------------------------------------------- Benefits Canada reports that the federal government's about-face in settling a multi-million dollar class action in the Federal Court of Canada means more than 1,700 individuals who become ill while on parental leave between 2002 and 2013 will be compensated for the government's refusal to convert their benefits into employment insurance sickness benefits. For 11 years after the Employment Insurance Act was amended in 2002 to allow for the "stacking" of maternity, parental and sickness benefits, the government took the position that employees on parental leave could not switch to EI sickness benefits because they weren't "otherwise available for work" -- a condition whose potential impact on the 2002 changes appears to have been overlooked when the amendments were drafted. The condition was removed when the legislation was revised again in 2013, but the revisions weren't retroactive. In filing the class action in 2012, Stephen Moreau, a lawyer in Cavalluzzo LLP's labour group who is representing the class, alleged the government had been negligent in its interpretation and administration of the 2002 amendments by not allowing claimants to switch to sickness benefits, a refusal that resulted in the amendments failing to address the identified gap in the previous version of the law. Although the government didn't admit liability in settling the case, it agreed to pay between $8.5 million and $11 million in damages to members of the class, including representative plaintiff Jennifer McCrea of Calgary, who was diagnosed with breast cancer while on parental leave after her son's birth in 2011. The settlement will compensate class members for the full amount of the sickness benefits they were denied. Justice Catherine Kane of the Federal Court also ordered the government to pay some $2.5 million to Moreau and his firm for legal fees -- separately and apart from the sums paid in damages to class members. Mr. Moreau believes the settlement, approved in late January, restores confidence in the country's EI regime. "Although we're talking about a social insurance scheme, employment insurance has many of the features of a private contract in the sense that people expect to get their benefits if they pay their premiums and meet the statutory conditions," he says. "With employees and employers each paying about $1,000 annually in premiums, there would be no backing for the system if the payouts were all about government discretion and if the government did not provide the support required to ensure that individuals received the benefits they had paid for and deserved." In her reasons for approving the settlement, Justice Kane noted "the importance of the litigation, which, as she saw it, went 'above and beyond' the award of compensation to restoring the public's faith in the system. Unsuccessful claimants were likely discouraged by the outcome for them, while observing that new benefits programs were promised and implemented to address other important needs, but not to address their failed claims," she wrote. Christopher Simard, a spokesperson with Employment and Social Development Canada, denied negligence on the government's part and told media the settlement "demonstrates that the government understands the challenges faced by this group of claimants who were in a very tough position, sick and taking care of a child or children." Mr. Simard said the objective of the settlement was "to bring closure to parents and their families who were denied by the rules set out at the time from receiving EI sickness benefits while in receipt of parental benefits." Justice Kane also awarded an honorarium of $10,000 to McCrea in recognition of her "exceptional" contribution to class members' pursuit of access to justice over the six years the case had been ongoing. She had raised awareness of the gap in the parental benefits regime, was the recognized face of this issue long before the lawsuit was filed, immersed herself in the litigation, prepared several affidavits, provided input on the settlement, communicated with class members, brought their concerns to counsel's attention, was media spokesperson for the group and would likely be the go-to person during the settlement's implementation. "The Court has no hesitation in approving the honorarium of $10,000 for Ms. McCrea in recognition of her role in bringing this litigation and this cause to the finish line," wrote Justice Kane. [GN] CASSENA CARE: Olsen Suit Asserts Disabilities Act Breach -------------------------------------------------------- Cassena Care, LLC is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled Thomas J. Olsen, individually and on behalf of all other persons similarly situated, Plaintiff v. Cassena Care, LLC doing business as: Upper East Side Rehabilitation and Nursing Center, Defendant, Case No. 1:19-cv-01146 (E.D. N.Y., February 26, 2019). Cassena Care, LLC is a Rehabilitation center in New York City, New York.[BN] The Plaintiff is represented by: Christopher Howard Lowe, Esq. Lipsky Lowe LLP 630 Third Avenue New York, NY 10017 Tel: (212) 392-4772 Fax: (212) 444-1030 Email: chris@lipskylowe.com COMCAST CABLE: Azeveda Sues Over Missed Breaks, Unpaid Overtime --------------------------------------------------------------- Mario Azeveda, on behalf of himself, all others similarly situated, Plaintiff, v. Comcast Cable Communications Management, LLC and Does 1 through 50, inclusive, Defendants, Case No. 19CV341868 (Cal. Super., Santa Clara Cty., January 30, 2019), seeks unpaid overtime wages and interest, redress for failure to authorize or permit required meal periods, statutory penalties for failure to provide accurate wage statements, waiting time penalties in the form of continuation wages for failure to timely pay employees all wages due upon separation of employment, reimbursement of business-related expenses, injunctive relief and other equitable relief, reasonable attorney's fees, costs and interest under California Labor Code, Unfair Competition Law, the Federal Fair Labor Standards Act, the Fair Credit Reporting Act, the California Investigative Consumer Reporting Agencies Act and the California Consumer Credit Reporting Agencies Act. Azeveda worked for Comcast as a non-exempt, hourly employee from 1999 through May 19, 2016. Aside from being denied overtime pay, when Azeveda applied for employment, Comcast performed a background investigation on Azeveda despite not providing legally compliant disclosure and authorization forms to Aceveda, asserts the complaint. [BN] Plaintiff is represented by: Shaun Setareh, Esq. H. Scott Leviant, Esq. William M. Pao, Esq. SETAREH LAW GROUP 9454 Wilshire Boulevard, Suite 907 Beverly Hills, CA 90212 Telephone: (310) 888-7771 Facsimile: (310) 888-0109 Email: shaun@setarehlaw.com scott@setarehlaw.com william@setarehlaw.com COMHAR GROUP: Perez Seeks Unpaid Minimum & Overtime Wages --------------------------------------------------------- JUAN EDDY SARMIENTO PEREZ, individually and on behalf of others similarly situated, the Plaintiff, vs. COMHAR GROUP LLC (D/B/A COMHAR GROUP LLC) and LEONEL LENNYM, the Defendants, Case No. 1:19-cv-00964-FB-JO (E.D.N.Y., Feb. 19, 2019), seeks to recover unpaid minimum and overtime wages pursuant to the Fair Labor Standards Act of 1938 and the New York Labor Law. According to the complaint, the Plaintiff was employed by the Defendants as a carpenter, working in excess of 40 hours per week, without appropriate minimum wage and overtime compensation for the hours that he worked. Rather, the Defendants failed to maintain accurate recordkeeping of the hours worked and failed to pay the Plaintiff appropriately for any hours worked, either at the straight rate of pay or for any additional overtime premium. Furthermore, the Defendants repeatedly failed to pay the Plaintiff wages on a timely basis. The Defendants' conduct extended beyond the Plaintiff to all other similarly situated employees, the lawsuit says. The Defendants own, operate, or control a carpentry company, located at 40-49 69th Street Woodside, NY 11377.[BN] Attorneys for the Plaintiff: Michael Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 4510 New York, NY 10165 Telephone: (212) 317-1200 Facsimile: (212) 317-1620 E-mail: Faillace@employmentcompliance.com CONVERGENT OUTSOURCING: Davis Files FDCPA Suit in E.D. Calif. ------------------------------------------------------------- A class action lawsuit has been filed against Convergent Outsourcing, Inc. The case is styled as Brian K. Davis on behalf of himself and all others similarly situated, Plaintiff, v. Convergent Outsourcing, Inc., Defendant, Case No. 1:19-cv-00268-LJO-JLT (E.D. Cal., Feb. 26, 2019). The Plaintiff filed the case under the Fair Debt Collection Practices Act. Convergent Outsourcing, Inc. offers business process outsourcing, revenue cycle, and receivables management services.[BN] The Plaintiff is represented by: Nicholas Michal Wajda, Esq. Wajda Law Group, APC 11400 W. Olympic Blvd., Ste. 200 Los Angeles, CA 90064 Phone: (310) 997-0471 Fax: (866) 286-8433 Email: nick@wajdalawgroup.com COOPERSURGICAL, INC: Sawyer Seeks Class Certification ----------------------------------------------------- WILLIAM P. SAWYER, M.D., individually and as the representative of a class of similarly-situated persons, the Plaintiff, vs. COOPERSURGICAL, INC., the Defendant, Case No. 3:19-cv-00295-MPS (D. Conn.), the Plaintiff asks the Court for an order: 1. taking motion under submission and deferring further activity on it until after the discovery cutoff date to be set in the Court's upcoming Rule 23 scheduling order, or alternatively; 2. granting the Plaintiff's motion for class certification pursuant to Fed. R. Civ. P. 23.[CC] Attorneys for the Plaintiff: Ryan M. Kelly, Esq. ANDERSON + WANCA 3701 Algonquin Road, Suite 500 Rolling Meadows, IL 60008 Telephone: 847-368-1500 Facsimile: 847-368-1501 E-mail: rkelly@andersonwanca.com CORAL TINT AND ACCESSORIES: Devivo Hits Illegal SMS Ad Blasts ------------------------------------------------------------- Colleen Devivo, individually and on behalf of all others similarly situated, Plaintiff, v. Coral Tint And Accessories, Inc., Defendant, Case No. 19-cv-60262 (S.D. Fla., January 30, 2019), seeks statutory damages and injunctive relief for violations of the Telephone Consumer Protection Act. Defendant specializes in automotive glass tinting. To promote its services, it engages in sending unsolicited text messaging en masse. [BN] Plaintiff is represented by: Scott Edelsberg, Esq. EDELSBERG LAW, PA 19495 Biscayne Blvd #607 Aventura, FL 33180 Telephone: (305) 975-3320 Email: scott@edelsberglaw.com - and - Andrew J. Shamis, Esq. SHAMIS & GENTILE, P.A. 14 NE 1st Avenue, Suite 400 Miami, FL 33132 Telephone: 305-479-2299 Email: ashamis@shamisgentile.com CORNING CORP: Seyfarth Shaw Attorneys Discuss Court Ruling ---------------------------------------------------------- Gerald L. Maatman Jr., Esq., and Christina M. Janice, Esq., of Seyfarth Shaw LLP, in an article for Mondaq, report that on February 4, 2019, in Woods-Early v. Corning Corp., Case No. 18-CV-6162, a race discrimination class action, Judge Frank P. Geraci, Jr. of the U.S. District Court for the Western District of New York refused to strike class allegations of discrimination in promotions on the basis of race and color in violation of Title VII and the New York State Human Rights Law. Although Plaintiff's amended complaint failed to identify a single promotion she was denied on the basis of race and color, the Court found that allegations of discriminatory decision-making by a small group of upper-level management exercising unfettered discretion over an employer's performance review process was sufficient to survive a motion to dismiss the class claims under Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011). Background In 2018 an employee of Corning, a multinational technology company specializing in designing and manufacturing materials for industrial and scientific applications, brought a class action alleging that the employer discriminated against her on the basis of her color and race (Black, African-American) in violation of Title VII and the New York State Human Rights Law. Plaintiff asserted that by utilizing a performance evaluation tool and process that disadvantaged Black, African-American employees in obtaining access to promotion opportunities, the employer violated the law. Plaintiff alleged that the Company used an evaluation tool that allowed supervisors, without sufficient training, to exercise unfettered discretion in evaluating employee performance on the basis of ill-defined "Corning Values," and that these ratings then were advanced to a group of high-level executives called the "brain trust," who themselves had unfettered discretion to change the ratings. The discriminatory result alleged by Plaintiff was that African-American employees routinely received lower ratings than their non-minority counterparts, and because of this they were unable to achieve the "Emerging Talent" internal designation and higher salary bands required by Corning to access training and other executive networking opportunities necessary to obtain promotional opportunities. Plaintiff did not, however, identify any single promotional opportunity she was denied. Defendant filed a motion to dismiss the class allegations as well as any allegations of discrimination against Plaintiff in promotions. Relying on Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), the Company argued that discrimination claims based on the exercise of managerial discretion in the performance evaluation process lack sufficient commonality to proceed in litigation. Moreover, Defendant argued that allegations that its executive "brain trust" controlled the performance evaluation process, and had the unfettered discretion to change performance ratings and determine who is designated "Emerging Talent," were merely "conclusory and implausible." It further argued that Plaintiff's claims should fail because she could not link any discriminatory, low performance ratings to an adverse action against her. The Court's Ruling Observing that parties often mistake the import of Wal-Mart as requiring that sustainable class allegations present common questions, the Court opined that the proper inquiry in scrutinizing class allegations is whether the class mechanism is appropriate to find common answers to the allegations. Noting that the Supreme Court in Wal-Mart emphasized that in Title VII claims implicating many employment decisions there must be a "glue" holding the alleged reasons for the decisions together, the Court stated that this "glue" can come in different forms, such as a biased testing procedure or general policy of discrimination manifested in promotions practices. The Court followed the lead of the Fourth and Seventh Circuits respectively in Scott v. Family Dollar Stores, Inc., 733 F.3d 105 (4th Cir. 2013), and Chicago Teachers Union, Local No. 1 v. Bd. Of Educ. Of Chicago, 797 F.3d 426 (7th Cit. 2015), each of which found that the commonality required to sustain class treatment is satisfied when discretion is exercised uniformly by higher-level management. As a result, the Court ruled that allegations of the unfettered discretion of the Company's "brain trust" — to determine employee performance ratings, the incentive of this singular and cohesive group to manipulate performance ratings to impact the individuals designated as "Emerging Talent," and the effect of the exercise of that discretion to bar African-American employees from advancing to higher pay bands and the access to executives and training needed for promotions — were sufficient to survive the motion to dismiss. The Court also rejected Defendant's challenge that although Plaintiff alleged that she suffered discriminatorily low performance ratings, her claim for discrimination in promotions should be dismissed for failing to allege any promotional opportunity for which she applied and was qualified, and that she had been denied. The Court rejected the contention that Plaintiff must allege the adverse action of a specific promotion sought and denied in order to survive a motion to dismiss a claim of discrimination in promotions. Rather, the Court determined that Plaintiff's allegations of a discriminatory performance evaluation and rating process, and a link between the alleged discriminatory actions of the Company's "brain trust" and tangible adverse impacts to African-Americans, including herself, was sufficient for her promotions claims to proceed. Implications For Employers This decision is one of a growing body of case law authority interpreting and expanding the contours of class actions maintainable in the aftermath of Wal-Mart. Over time, employers may expect the plaintiffs' class action bar to test and refine theories to obtain class certification in "managerial discretion" cases. To get ahead of this curve, employers should periodically review their performance evaluation processes for disparate impact and other vulnerabilities. Evaluating performance management programs for well-communicated expectations, detailed and sufficiently objective metrics, disciplined scoring, and standardized supervisor training, also is a proactive step for savvy employers to take to enhance the workplace while reducing risk. [GN] COX COMMUNICATIONS: Appeals Class Cert. Order in Knapper Suit ------------------------------------------------------------- Defendant Cox Communications, Inc., filed an appeal from the District Court's February 6, 2019 class certification order issued in the lawsuit titled Joanne Knapper, on behalf of herself and others similarly situated v. Cox Communications, Inc., Case No. CV-17-00913-PHX-SPL, in the U.S. District Court for the District of Arizona. On February 6, 2019, the Honorable Steven P. Logan granted the Plaintiff's Motion for Class Certification and Appointment of Class Counsel. The District Court certified the class as: (1) all persons and entities throughout the United States, (2) to whom Cox Communications, Inc. placed a call (3) directed to a number assigned to a cellular telephone service, but not assigned to a Cox Communications, Inc. subscriber, (4) in connection with its efforts to collect a past due residential account balance, (5) via its Avaya dialers or with an artificial or prerecorded voice, (6) from March 28, 2013 through the date of class certification. Cox Communications wants the Appeals Court to determine whether the District Court erred in: 1. certifying a TCPA class pursuant to Rule 23(b)(3), where the Plaintiff's proposed methodology to resolve individualized issues of consent confirms that whether the call recipients gave consent cannot be resolved with class-wide proof; and 2. holding, in a TCPA case, that a Rule 23(b)(3) class may properly include the defendant's former customers, from whom the Defendant received consent. The appellate case is captioned as JOANNE KNAPPER v. COX COMMUNICATIONS, INC., Case No. 19-80019, in the United States Court of Appeals for the Ninth Circuit.[BN] The Plaintiff is represented by: Michael L. Greenwald, Esq. James Lee Davidson, Esq. GREENWALD DAVIDSON RADBIL PLLC 5550 Glades Road, Suite 500 Boca Raton, FL 33431 Telephone: (561) 826-5477 E-mail: mgreenwald@gdrlawfirm.com jdavidson@gdrlawfirm.com - and - Aaron Radbil, Esq. GREENWALD DAVIDSON RADBIL PLLC 401 Congress Avenue, Suite 1540 Austin, TX 78701 Telephone: (512) 803-1578 E-mail: aradbil@gdrlawfirm.com The Defendant is represented by: Keith Bradley, Esq. SQUIRE PATTON BOGGS (US) LLP 1801 California Street Denver, CO 80202 Telephone: (303) 894-6156 E-mail: keith.bradley@squirepb.com - and - Amy Brown Doolittle, Esq. SQUIRE PATTON BOGGS (US) LLP 2550 M Street NW Washington, DC 20037 Telephone: (202) 626-6707 E-mail: amy.doolittle@squirepb.com - and - Petrina A. McDaniel, Esq. Keshia W. Lipscomb, Esq. SQUIRE PATTON BOGGS (US) LLP 1230 Peachtree Street NE Atlanta, GA 30309 Telephone: (678) 272-3207 E-mail: petrina.mcdaniel@squirepb.com keshia.lipscomb@squirepb.com - and - Eric Troutman, Esq. SQUIRE PATTON BOGGS (US) LLP 555 South Flower Street, 31st Floor Los Angeles, CA 90071 Telephone: (213) 689-6510 E-mail: eric.troutman@squirepb.com - and - Steffen N. Johnson, Esq. Sean G. Wieber, Esq. WINSTON & STRAWN LLP 1700 K Street, N.W. Washington, DC 20006 Telephone: (202) 282-5000 E-mail: sjohnson@winston.com swieber@winston.com CRUS-Z FAMILY CORP: Martinez Seeks Unpaid Minimum, Overtime Pay --------------------------------------------------------------- Ana Laura Conde Martinez, individually and on behalf of others similarly situated, Plaintiffs, v. The Crus-Z Family Corp., Andres Cruz, Juan Carlos Mora and David Cruz, Defendants, Case No. 19-cv-00571 (E.D. N.Y., January 30, 2019), seeks to recover unpaid minimum and overtime wages and redress for failure to provide itemized wage statements pursuant to the Fair Labor Standards Act of 1938 and New York Labor Law, including applicable liquidated damages, interest, attorneys' fees and costs. Defendants own, operate, or control a Mexican restaurant, located at 87-09 Roosevelt Ave., Jackson Heights, NY 11372 under the name "The Crus-Z Family" where Martinez worked as a waitress. She worked in excess of 40 hours per week, without appropriate minimum wage, spread-of-hours and overtime compensation for the hours that she worked. Defendants also failed to maintain accurate recordkeeping of the hours worked. Her actual duties, in payroll records, were as a delivery worker instead of as a non-tipped employee, thus allowing Defendants to pay her above the tip-credit rate, but below the minimum wage, asserts the complaint. [BN] Plaintiff is represented by: Michael Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 4510 New York, NY 10165 Tel: (212) 317-1200 Email: Faillace@employmentcompliance.com CVR REFINING: Common Units Being Sold Too Cheaply, Bonnell Says --------------------------------------------------------------- DWIGHT BONNELL, on behalf of himself and all other similarly situated former unitholders of CVR REFINING, LP v. CVR REFINING, LP, CVR ENERGY, INC., CVR REFINING HOLDINGS, LLC, CVR REFINING GP, LLC, ICAHN ENTERPRISES, L.P., CARL C. ICAHN, SUNGHWAN CHO, JONATHAN FRATES, DAVID L. LAMP, ANDREW LANGHAM, LOUIS J. PASTOR, KENNETH SHEA, JON R. WHITNEY, AND GLENN R. ZANDER, Case No. 2019-0138 (Del. Ch., February 21, 2019), challenges the multi-step plan by which Icahn Enterprises, L.P. ("Icahn"), an investment firm controlled by Carl Icahn, acting through various entities, weaponized a call right in the limited partnership agreement of the CVR Refining, LP (the "Partnership") in order to buy out the Partnership's public common unitholders on the cheap. The Partnership is a Delaware master limited partnership ("MLP") that owns and operates petroleum refining and auxiliary businesses in the United States. The Partnership is an oil refiner and marketer of transportation fuels organized as a limited partnership under the laws of the state of Delaware and headquartered in Sugar Land, Texas. CVR Refining GP, LLC (the "General Partner") is a limited liability company organized and existing under the laws of the state of Delaware, and is an indirectly wholly owned subsidiary of CVR Energy through CVR Holdings. The General Partner is the general partner of the Partnership, and has direct responsibility for conducting the Partnership's business and managing its operations. CVR Holdings is a limited liability company organized and existing under the laws of the state of Delaware, and is an indirectly wholly owned subsidiary of CVR Energy. CVR Holdings owns and controls the General Partner. CVR Energy is a corporation organized and existing under the laws of the state of Delaware. The Partnership, CVR Holdings, and the General Partner are now wholly owned subsidiaries of CVR Energy. CVR Energy controlled the General Partner. Icahn is a limited partnership organized and existing under the laws of the state of Delaware. Icahn either directly or indirectly controlled the actions of CVR Energy, CVR Holdings, the General Partner, and, thus, the Partnership. The Individual Defendants are directors and officers of one or more of the Corporate Defendants.[BN] The Plaintiff is represented by: Joel Friedlander, Esq. Jeffrey Gorris, Esq. Christopher P. Quinn, Esq. FRIEDLANDER & GORRIS P.A. 1201 N. Market Street, Suite 2200 Wilmington, DE 19801 Telephone: (302) 573-3500 E-mail: jfriedlander@friedlandergorris.com jgorris@friedlandergorris.com cquinn@friedlandergorris.com - and - Mark Lebovitch, Esq. Adam Wierzbowski, Esq. BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP 1251 Avenue of the Americas New York, NY 10020 Telephone: (212) 554-1400 E-mail: markl@blbglaw.com adam@blbglaw.com - and - Frank A. Bottini, Jr., Esq. BOTTINI & BOTTINI, INC. 7817 Ivanhoe Avenue, Suite 102 La Jolla, CA 92037 Telephone: (858) 914-2001 E-mail: fbottini@bottinilaw.com CVR REFINING: Graulich Alleges Breach of Call Right --------------------------------------------------- KARL GRAULICH, individually and on behalf of all others similarly situated, the Plaintiff, vs. CVR REFINING, LP; CVR REFINING GP, LLC; CVR ENERGY, INC.; CVR REFINING HOLDINGS, LLC; and ICAHN ENTERPRISES, L.P., the Defendants, Case No. 2019-0121 (Del. Ch. Feb. 15, 2019), seeks to recover minimum damages arising out of CVI's January 18, 2019 exercise, as an assignee, of CVR GP's right pursuant to Section 15.1 of the Limited Partnership Agreement ("LPA"), to purchase the remaining outstanding public units of CVR LP (the "Call Units") at a designated price where the General Partner and its Affiliates at any time held less than 70% of the total Limited Partner Interests, and thereafter hold more that 80% of the total Limited Partner Interests (the "Call Right"). CVR GP reached the 80% threshold via completion of its May 29, 2018 tender offer to purchase Common Units at approximately $26 per Unit. The LPA provides that, if the General Partner exercises the Call Right, the price for the Call Units shall be the greater of (a) the Current Market Price [defined in the LPA as the average daily Closing Prices of such class for the 20 consecutive Trading Days, immediately prior to such date] as of three days prior to the date that the notice of such purchase is mailed, or (b) the highest price paid by the General Partner or any of its Affiliates for any 2such Limited Partner Interest of such class purchased during the 90-day period preceding the date the notice is mailed. On January 17, 2019, CVI announced that it was exercising the Call Right (which was assigned to CVI by the General Partner, CVR GP) at a purchase price of $10.50 per Common Unit (the "Call Price"), a price based on the average of the daily closing prices for the Common Units on the New York Stock Exchange ("NYSE") for the 20-consecutive trading days ending on January 14, 2019. CVI provided no information regarding any purchases by Affiliates within the 90-day period prior to the Notice Date. The Call Price breached Section 15.l(a) because CVI was required to pay the greater of the 20-day trailing average or the price paid by the General Partner or any of its Affiliates for any such units during the 90-day period preceding the date the notice described in Section 15.1(b) was mailed. As detailed in an SEC Form 4 filed on January 15, 2019, Janice T. DeVelasco, a CVI and CVR LP Officer, purchased (through a dividend reinvestment) 236.2019 Common Units of CVR LP at a price of $16.7162 per Unit on November 14, 2018, which was well within the 90-day period. As a result, utilizing the price paid by DeVelasco on November 14, 2018 as a baseline for CVI's exercise of the Call Right, the minimum price for the Call Units should have been $16.7162 (the "Minimum Call Price"), not the $10.50 Call Price. Thus, under the second prong of Section 15.1(a), the minimum total paid to members of the Class should have been $383 million, which is $140 million more than the $241 million that was paid to members of the Class on January 29, 2019. CVI's purchase of the remaining Common Units at the Call Price of $10.50 breached the LPA in this regard, entitling Public Unitholders to damages, the lawsuit says. CVR Refining, LP is an independent petroleum refiner and a marketer of high value transportation fuels. The Partnership owns a complex full coking medium-sour crude oil refinery in Coffeyville, Kansas and a complex crude oil refinery in Wynnewood, Oklahoma. The Partnership is party to a services agreement pursuant to which the Partnership and its General Partner obtain certain management and other services from Defendant CVI. CVR LP's Common Units were listed on the NYSE and began trading on January 17, 2013 under the symbol "CVRR".[BN] Attorneys for the Plaintiff: Rosemary J. Piergiovanni, Esq. Brian E. Farnan, Esq. Michael J. Farnan, Esq. Rosemary J. Piergiovanni, Esq. 919 North Market Street, 12th Floor Wilmington, DE 19801 Telephone: (302) 777-0300 Facsimile: (302) 777-0301 E-mail: bfarnan@farnanlaw.com mfarnan@farnanlaw.com rpiergiovanni@farnanlaw.com DELAWARE, PA: Beamer Granted Leave to Proceed in Forma Pauperis --------------------------------------------------------------- In the case, ZAHKEE FATTAH BEAMER, Plaintiff, v. GEORGE W. HILL CORRECTIONAL FACILITY, et al., Defendants, Civil Action No. 19-CV-0650 (E.D. Pa.), Judge Juan R. Sanchez of the U.S. District Court for the Eastern District of Pennsylvania (i) granted Beamer leave to proceed in forma pauperis, and (ii) dismissed his Complaint for failure to state a claim. Pro se Plaintiff Beamer has filed the civil action pursuant to 42 U.S.C. Sectuib 1983 against the George W. Hill Correctional Facility ("GWHCF") and the Geo Group, raising claims regarding conditions of confinement during his recent incarceration there. He has also filed a Motion for Leave to Proceed In Forma Pauperis. Beamer was admitted to an intake holding room at the GWHCF on Jan. 12, 2019. He alleges that this holding room contained over a 20-man cell capacity with far less than three feet of content spacing between inmates. Beamer was in the holding room for three days, until Jan. 14, 2019, when inmates were then 'classified' and were dispersed back into lawful conditions. He states that officers ignored his remarks and continued to fill the cell up to an unlawful capacity causing him to sleep on a floor under a bench with his body touching two other inmates. During this time, no bedding, heat, and hygiene were provided, causing Beamer's anxiety to spike at an unhealthy level. Beamer states that he would like to file a class action on behalf of himself and 19 other inmates regarding these conditions. As relief, he asks the Court to diagnose the real problem here which lies with the privatization of the facility in the first place. He also asks for monetary compensation for every day confined to such conditions. During portions of this time, he was assigned to a cell with two other men. Beamer also alleges that he was without water and heat for three days. He suggests that he and his cellmates got into a lot of arguing and fights, and that he could not use the toilet "without someone watching." As relief, Beamer asks to separate inmates and for someone to discuss problems with. Judge Sanchez finds that a pro se litigant who is not an attorney may not pursue claims on behalf of anyone other than himself. Accordingly, he will dismiss without prejudice any claims raised on others' behalf. The Judge also finds that Beamer has named the GWHCF as a Defendant in the matter. However, his claims against the GWHCF must be dismissed because the facility is not a legal entity susceptible to suit. The Geo Group acts under the color of state law by providing services for GWHCF. However, to hold the Geo Group liable under Section 1983, Beamer must allege that his constitutional rights were violated as a result of a custom or policy adopted by that entity. He has not done so in his Complaint. Accordingly, he cannot maintain a claim against the Geo Group at this time. For these reasons alone, Beamer's Complaint is subject to dismissal. Finally, the Judge finds that Beamer takes issues with various conditions at the GWHCF. The Eighth Amendment governs claims brought by convicted inmates challenging their conditions of confinement, while the Due Process Clause of the Fourteenth Amendment governs claims brought by pretrial detainees. He says Beamer's Complaint fails to state a claim with respect to his allegations of overcrowding. Beamer has not established a plausible constitutional violation because he has not alleged that the overcrowded conditions amounted to punishment, deprived him of a basic need, or otherwise caused him harm. Beamer also suggests that he was without bedding, heat and hygiene (presumably a reference to showers) for the three days he spent in the holding room. While being made to endure extreme temperatures can rise to the level of a deprivation of a basic human need, the Complaint fails to plausibly allege that the lack of heat amounted to punishment or deprived Beamer of any basic human needs for a significant period of time. Accordingly, Beamer cannot maintain his claims regarding these conditions at this time. For the foregoing reasons, Judge Sanchez granted Beamer leave to proceed in forma pauperis and dismissed his Complaint for failure to state a claim pursuant to 28 U.S.C. Section 1915(e)(2)(B)(ii). The dismissal is without prejudice to Beamer's right to file an amended complaint within 30 days if he can cure the defects noted. An appropriate Order follows. A full-text copy of the Court's Feb. 15, 2019 Order is available at https://is.gd/zp37pz from Leagle.com. ZAHKEE FATTAH BEAMER, Plaintiff, pro se. ENTERPRISE HOLDINGS: Kramer Class Suit Removed to N.D. California ----------------------------------------------------------------- The purported class action lawsuit styled STEVE KRAMER, individually and on behalf of all others similarly situated v. ENTERPRISE HOLDINGS, INC., a Missouri corporation, Case No. CGC-19-572530, was removed on February 21, 2019, from the Superior Court of the State of California for the County of San Francisco to the U.S. District Court for the Northern District of California. The District Court Clerk assigned Case No. 3:19-cv-00979-LB to the proceeding. On January 3, 2019, Plaintiff Steve Kramer, individually and on behalf of all others similarly situated, filed the Complaint in the Superior Court. The Complaint asserts claims for violation of Article I, Section 1, of the California Constitution; and violation of California's Rental Passenger Vehicle Transactions Law. The Complaint alleges that affiliates of EHI violated the laws when they allegedly failed to erase personal data that was purportedly transmitted to the vehicle's infotainment system when the Plaintiff and members of the proposed class paired their mobile phones with cars rented from EHI's affiliates. Specifically, the Plaintiff alleges that EHI "fail[ed] to promulgate or maintain adequate policies and procedures to safeguard the 'Private Data' . . . of consumers, including Plaintiff and the Class members, who rented vehicles on a short-term basis from Enterprise Rent-A-Car, National Car Rental, and Alamo Rent A Car and who paired their smartphones or mobile devices . . . with the vehicles' GPS technology and/or automotive infotainment systems . . . during the period from January 3, 2016, to the present."[BN] The Plaintiff is represented by: Michael R. Reese, Esq. George V. Granade, Esq. REESE LLP 100 West 93rd Street, 16th Floor New York, NY 10025 Telephone: (212) 643-0500 Facsimile: (212) 253-4272 E-mail: mreese@reesellp.com ggranade@reesellp.com - and - David A. Carroll, Esq. Anthony J. DiRaimondo, Esq. Robert E. Opdyke, Esq. RICE REUTHER SULLIVAN & CARROLL, LLP 3800 Howard Hughes Parkway, Suite 1200 Las Vegas, NV 89169 Telephone: (702) 732-9099 Facsimile: (702) 732-7110 E-mail: dcarroll@rrsc-law.com adiraimondo@rrsc-law.com ropdyke@rrsc-lcnv.com The Defendant is represented by: Jessica L. Grant, Esq. Daniel E. Lassen, Esq. VENABLE LLP 101 California Street, Suite 3800 San Francisco, CA 94111 Telephone: (415) 653-3750 Facsimile: (415) 653-3755 E-mail: jgrant@venable.com delassen@venable.com - and - Michael B. MacWilliams, Esq. VENABLE LLP 750 E. Pratt Street, Suite 900 Baltimore, MD 21202 Telephone: (410) 244-7514 Facsimile: (410) 244-7742 E-mail: mbmacwilliams@venable.com EPIC GAMES: Krohm Sues over Theft of Fortnite Gamers' Data ---------------------------------------------------------- A case ERIC KROHM, individually and on behalf of similarly situated individuals, the Plaintiff, vs. EPIC GAMES, INC., a Maryland corporation, the Defendant, Case No. 2019CH02032 (Ill. Cir. Ct., Cook Cty., Feb. 15, 2019), asserts Defendant's lax cybersecurity policies and procedures created a Vulnerability that allowed hackers to obtain access to the Plaintiffs and other players' personally identifiable information (PII) and Payment Information. According to the complaint, the Defendant is the developer of Fortnite, one of the most popular video games ever produced with tens of millions of active monthly users across the globe. Defendant's Fortnite video game generates hundreds of millions of dollars mannual revenue, a significant portion of which is derived from players' in-game purchases of items such as outfits, or "skins," for their in-game characters. In order to make an in-game purchase, the Defendant requires players to purchase and utilize its own Fortnite currency called "Vbucks." Around or before November 2018, the Defendant became aware of a significant cybersecurity Vulnerability in its Fortnite video game that allowed cyber-criminals and unauthorized third parties to hijack player accounts and access players' PII, credit card and payment information, and other sensitive data associated with the players' respective accounts. After hijacking a respective player's Fortnite account, a cyber-criminal is then able to make in-game purchases of Vbucks in order to resell the same on the criminal black market. Indeed, Defendant's Vbucks currency is a lucrative item for cybercriminals, and the Defendant is fully cognizant of the substantial criminal activity surrounding the fraudulent acquisition of Vbucks. In addition to exposing the PII and Payment Information of Fortnite players, the Vulnerability also enabled unauthorized parties to covertly listen in on the conversations of Fortnite players, many of which are minors, thereby constituting a severe breach of privacy. Even though Defendant knew that it was storing sensitive information which was valuable and vulnerable to cyber attackers, particularly credit card and other Payment Information, the Defendant nonetheless failed to take basic security precautions that could have prevented, and certainly at least mitigated, the ramifications of the Vulnerability, the lawsuit says. Attorneys for the Plaintiff and the Putative Classes: Myles McGuire, Esq. Jad Sheikali, Esq. Timothy P. Kingsbury, Esq. MCGUIRE LAW, P.C. 55 W. Wacker Dr., 9th Fl. Chicago, IL 60601 Telephone: (312) 893 7002 E-mail: mmcguire@mcgpc.com jsheikali@mcgpc.com tkingsbury@mcgpc.com EVERQUOTE INC: Townsend Files IPO-related Class Action ------------------------------------------------------ Mark Townsend, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. EverQuote, Inc., Seth Birnbaum, John Wagner, David Blundin, Sanju Bansal, John Lunny, George Neble, John Shields, Mira Wilczek, David Mason, J.P. Morgan Securities LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Canaccord Genuity LLC, JMP Securities LLC, Needham & Company LLC, Oppenheimer & Co. Inc, Raymond James & Associates, Inc. and William Blair & Company, L.L.C., Defendants, Case No. 651177/2019 (Sup. Ct., New York Cty., February 26, 2019) is a securities class action on behalf of all persons or entities who purchased or otherwise acquired EverQuote common stock pursuant or traceable to the registration statement and prospectus issued in connection with EverQuote's June 2018 initial public offering. In late June 2018, defendants commenced the IPO, issuing approximately 4.7 million shares of EverQuote common stock to the investing public at $18 per share, all pursuant to the Registration Statement. However, the Registration Statement contained untrue statements of material fact and omitted to state material facts both required by governing regulations and necessary to make the statements made not misleading, says the complaint. With these misrepresentations and omissions in the Registration Statement, the IPO was extremely lucrative for defendants, who raised more than $84 million in gross proceeds. But when the truth of the Defendants' misrepresentations and omissions became known, the price of EverQuote shares suffered sharp declines, says the complaint. Plaintiff Mark Townsend purchased EverQuote shares pursuant to the Registration Statement in the Offering and was damaged thereby. EverQuote is an online lead generation company, specializing primarily in leads for auto insurance.[BN] The Plaintiff is represented by: Samuel H. Rudman, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 58 South Service Road, Suite 200 Melville, NY 11747 Phone: 631/367-7100 Fax: 631/367-1173 Email: srudman@rgrdlaw.com - and - James I. Jaconette, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 655 West Broadway, Suite 1900 San Diego, CA 92101-8498 Phone: 619/231-1058 Fax: 619/231-7423 Email: jamesj@rgrdlaw.com - and - W. Scott Holleman, Esq. JOHNSON FISTEL, LLP 99 Madison Avenue, 5th Floor New York, NY 10016 Phone: 212/802-1486 Fax: 212/602-1592 Email: scotth@j ohnsonfistel.com - and - David W. Hall, Esq. HEDIN HALL LLP Four Embarcadero Center, Suite 1400 San Francisco, CA 94104 Phone: 415/766-3534 Fax: 415/402-0058 Email: dhall@hedinhall.com FLAGSTAR BANK: Court Converts Dismissal Bid to Summary Judgment Bid ------------------------------------------------------------------- The United States District Court for the Northern District of California issued an Order converting Defendants' Motion to Dismiss to Summary Judgment in the case captioined LOWELL and GINA SMITH, husband and wife, and WILLIAM KIVETT, individually, and on behalf of others similarly situated, Plaintiffs, v. FLAGSTAR BANK, FSB, a federal savings bank, and DOES 1-100, inclusive, Defendants. No. C 18-05131 WHA. (N.D. Cal.). The Plaintiffs, as a putative class, allege breach of contract and violation of Section 17200 of the California Business & Professions Code. Under Section 17200, plaintiffs allege unlawful business practices based on violation of California Civil Code Section 2954.8(a) and unfair business practices for undertaking substantially harmful conduct that lacked any legitimate utility. Flagstar initially moved to dismiss the complaint in its entirety for all plaintiffs on the grounds that plaintiffs' claims were wholly preempted by the Home Owners' Loan Act (HOLA) To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face. FRCP 12(d), however, provides that if matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. HOLA PREEMPTION HOLA preemption is again at issue. The primary question is whether HOLA preempts California Civil Code Section 2954.8(a), which requires the following: "Every financial institution that makes loans upon the security of real property containing only a one-to four-family residence and located in this state or purchases obligations secured by such property and that receives money in advance for payment of taxes and assessments on the property, for insurance, or for other purposes relating to the property, shall pay interest on the amount so held to the borrower. The interest on such amounts shall be at the rate of at least 2 percent simple interest per annum. Such interest shall be credited to the borrower's account annually or upon termination of such account, whichever is earlier." Here, the Smiths' deed of trust originated in October 2004, which puts it temporally within the realm of Section 5553. The next issue is whether the Smiths entered into a contract with a national bank, Federal savings associations, or subsidiaries thereof. The four corners of the operative complaint do not speak to the issue, yet Flagstar attempts to resolve the factual dispute at the pleading stage by requesting judicial notice of the proposition that Flagstar was involved in the origination of the Smiths' mortgage and became its original servicer. Given the importance of this factual dispute and because matters outside the pleading are presented to and not excluded by the court, the motion to dismiss must be treated as one for summary judgment under Rule 12(d). In turn, under Rule 56(d), which authorizes a court to allow time for discovery during a motion for summary judgment when facts are unavailable to the nonmovant, parties must be given reasonable opportunity to present all material pertinent to the motion, specifically as to (1) what extent Flagstar was involved in the origination of the Smiths' mortgage and (2) whether a contract existed between the Smiths and Flagstar that would have preserved HOLA preemption pursuant to Section 5553. Immediate discovery into these issues is now allowed and supplements on this motion will be filed by NOON ON APRIL 18, 2019. Rule 12 motion to dismiss will be treated as a Rule 56 motion for summary judgment. A full-text copy of the District Court's February 14, 2019 Order is available at http://tinyurl.com/yy69f9ohfrom Leagle.com. Lowell Smith & Gina Smith, Plaintiffs, represented by Peter B. Fredman -- peter@peterfredmanlaw.com -- Law Office of Peter Fredman & Thomas Eric Loeser -- toml@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, pro hac vice. William Kivett, Plaintiff, represented by Thomas Eric Loeser , Hagens Berman Sobol Shapiro LLP. Flagstar Bank, FSB, Defendant, represented by Carolee Anne Hoover -- choover@mcguirewoods.com -- McGuireWoods LLP, David Carlyle Powell -- dpowell@mcguirewoods.com -- McGuireWoods LLP, Alexander Jacob Gershen agershen@mcguirewoods.com, McGuireWoods LLP &Alicia Anne Baiardo -- abaiardo@mcguirewoods.com -- McGuireWoods LLP. FRONTIER ACCESS: Green Claims Compensation for Missed Breaks ------------------------------------------------------------ Millard Green, Individually and on behalf of all others similarly situated, Plaintiff, v. Frontier Access, LLC, Frontier K2, LLC, and K2 Waste Solutions, LLC, Defendant, Case No. 19-cv-00332 (S.D. Tex., January 30, 2019), seeks to recover compensation, liquidated damages, attorneys' fees and costs under the Fair Labor Standards Act of 1938. Frontier provides waste disposal services in the state of Texas where Green worked as a driver, driving waste disposal trucks, hauling waste, recycling and other refuse to various landfill or disposal sites throughout Texas. Frontier automatically deducts 30 minutes a day for a meal-period break from the "on-the-clock" hours, regardless of whether the driver actually took a break or not. [BN] The Plaintiff is represented by: Clif Alexander, Esq. Lauren E. Braddy, Esq. Carter T. Hastings, Esq. Austin W. Anderson, Esq. Alan Clifton Gordon, Esq, ANDERSON2X, PLLC 819 N. Upper Broadway Corpus Christi, TX 78401 Tel: (361) 452-1279 Fax: (361) 452-1284 Email: clif@a2xlaw.com lauren@a2xlaw.com carter@a2xlaw.com austin@a2xlaw.com GANNETT CO: Dispute Over Pella Class Action Settlement Ongoing -------------------------------------------------------------- Jonathan Bilyk, writing for Cook County Record, reports that seizing on a federal judge's order barring "serial" class action settlement objector Christopher Bandas from further objecting to class action settlements, a group of lawyers seeking to cash in on a sizable settlement in a controversy-plagued class action against Pella Windows have asked a federal judge to box out other objectors from collecting off their deal, because Bandas had been among those objectors. On Feb. 5, a group of attorneys, led by Robert A. Clifford, of the Clifford Law Offices, of Chicago, filed a motion in Chicago federal court, asking the judge to consider the decision issued against Mr. Bandas. But the attorneys, representing a class of potentially thousands of plaintiffs, went further still, saying, just as Mr. Bandas was blocked out of the deal, so, too, should other objectors, which include lawsuit reform advocate Ted Frank. "Equity and fairness demand that (Frank and the other objectors) be denied the relief each seeks," Mr. Clifford wrote in the Feb. 5 brief. "They waged a bet in Mr. Bandas' well-established model, all for financial gain; but, alas, the model is now crestfallen. That does not entitle them to more money." The demand drew a sharp response from Mr. Frank, who noted his objection to the Pella Windows lawsuit settlement resulted in a decision from the U.S. Seventh Circuit Court of Appeals which resulted in the court reworking the deal to add millions of dollars to the pot for plaintiffs, not just their lawyers. "There is of course some irony in Plaintiffs'. . . strategy of attempting to tie Frank to abusive objection practices," Mr. Frank's attorneys wrote in their Feb. 12 reply. "As Frank explained . . . the Seventh Circuit agreed with his arguments. There is nothing abusive about a successful objection . . . "Especially this objection and appeal, which unquestionably benefitted the class to the tune of millions of dollars." TORTURED PAST The exchange come as a federal judge had been working toward ultimately latching shut the class action lawsuit case, and ending its tortured run through Chicago's federal courts. In 2006, plaintiffs filed suit in the U.S. District Court for the Northern District of Illinois against Pella, claiming its ProLine Series of windows allowed water to infiltrate houses, damaging wood frames and eventually the structure of the house itself. The lawsuit was initially brought by Leonard Saltzman, a dentist whose son-in-law, lawyer Paul Weiss, served as lead counsel for the plaintiffs. At the time, Saltzman's daughter and Weiss' wife, Jamie E. Weiss, also served as a partner at Weiss' firm. Other plaintiffs were later added to the action. In 2013, U.S. District Judge James Zagel approved a settlement agreement, ostensibly worth $90 million overall, but also worth $11 million to Weiss and others from his firm, Complex Litigation Group, of suburban Hinsdale. However, other plaintiffs objected to the settlement, asserting an ongoing feud between Weiss and a law partner and disciplinary proceedings launched by state regulators against Weiss had left him unfit to continue to lead the case. They said Weiss had simply used the case to run up the amount of fees he and his wife would earn. Among those objectors was a man identified as Michael Schulz, who was represented by Mr. Frank. Mr. Frank, a tort reform advocate, is the founder of the Center for Class Action Fairness. The CCAF was not involved in the Pella case. Mr. Frank has regularly argued objections to class action settlements alleged to be lopsided in favor of lawyers at the expense of the members of the plaintiffs' class the lawyers claim to represent. The objection to the Pella settlement ultimately landed before the Seventh Circuit appeals court, which savaged the deal for awarding plaintiffs' lawyers $11 million in fees up front, while securing no guarantee class members would receive any real benefit. The Seventh Circuit judges threw Mr. Weiss and his firm off the case, along with lead plaintiff Saltzman, and substituted in the Clifford firm, as well as attorneys from the Lang Law Office, of Crystal Lake; Morgan & Morgan Complex Litigation Group, of Tampa, Fla.; the Rhine Law Firm, of Wilmington, N.C.; and the Moor Law Office, of Chicago. In February 2018, the plaintiffs and Pella returned with a new settlement, this time offering $35 million, including $25 million for class members and $9 million to the plaintiffs' lawyers. SPOTLIGHT ON BANDAS In May, Frank asked the court to also award him $1.5 million from the settlement for his work on behalf of Schulz, which he noted helped undo the original settlement deal and produce the new deal. However, as the Pella settlement talks were continuing, the spotlight elsewhere fell on Mr. Bandas. In the Pella litigation, Mr. Bandas, of Corpus Christi, Texas, had initially represented Schulz, and had handed him off to Mr. Frank, under an agreement granting Mr.Bandas a share of whatever fees Frank may ultimately receive under a new Pella settlement. But in late 2016, Mr. Bandas was sued by the Chicago plaintiffs' law firm of Edelson P.C., who accused the Texas lawyer of masterminding a scheme to use the class action settlement objection process to essentially extort money from other lawyers trying to close their deals. The Edelson lawsuit centered on Mr. Bandas' alleged conduct in leading an effort to bog down a settlement in a class action lawsuit Mr. Edelson had led against Gannett Co. for allegedly violating a federal telecommunications law. In the Gannett case, Mr. Edelson accused Mr. Bandas of agreeing to drop his objections in exchange for $225,000. However, Mr. Edelson noted the Gannett case served as only an example of Mr. Bandas' conduct in a host of other lawsuits across the country. Mr. Edelson called him a "professional" and "serial" objector, and accused him of racketeering. A federal judge ultimately threw out the racketeering charges, but allowed the case to continue on Edelson's assertions Mr. Bandas had improperly practiced law in Illinois. In January 2019, the judge in the Edelson lawsuit against Mr. Bandas granted Mr. Bandas' request to end the action. In that motion, Mr. Bandas admitted to "unethical, improper and misleading conduct." U.S. District Judge Rebecca Pallmeyer slapped a permanent injunction on Mr. Bandas, prohibiting him from practicing law in Illinois or from representing anyone objecting to class action settlements in "any state or federal court." On Feb. 13, Judge Pallmeyer also refused Mr. Bandas' request to "clarify" her ruling and limit the objection prohibition to cases involving Edelson. Mr. Edelson had argued against that request, saying Mr. Bandas had requested the change merely to allow him to continue to collect on the Pella settlement objection. Following Judge Pallmeyer's January ruling, Mr Clifford filed his Feb. 8 motion, asking U.S. District Judge Sharon Johnson Coleman, who is presiding in the Pella case, to take that ruling into consideration, and prohibit Frank and others who represented objectors from collecting attorney fees from the Pella objections. In his response, Mr. Frank said he was not implicated in any way in the Edelson lawsuit or the Bandas decision. "To be sure, Frank's agreement with Bandas required Frank to share a portion of any attorneys' fee award that might result from the successful appeal of an objection to the original settlement that Bandas filed," Mr. Frank wrote. "That successful appeal does not in any way equate to Bandas having 'caused' Frank's recent filing seeking fees . . . "As Frank explained in his fee application, his efforts on appeal were a but-for cause of that settlement. At most, the only effect of the Edelson order on Frank or Schulz is to forbid Bandas from sharing in any fees awarded to Frank." Judge Coleman has ordered hearings on the question. Editor's note: This article has been revised from an earlier version to clarify attorney Ted Frank's relationship to the Center for Class Action Fairness and to clarify the CCAF played no role in this litigation. [GN] GC SERVICES: Bonoan Sues for TCPA Breach Over Autodialed Calls -------------------------------------------------------------- Viann Bonoan, on behalf of herself and others similarly situated v. GC Services, LP, Case No. 4:19-cv-00673 (S.D. Tex., February 26, 2019), is brought against the Defendant for violation of the Telephone Consumer Protection Act. The Plaintiff alleges that the Defendant routinely violates TCPA by using an automatic telephone dialing system to place non-emergency calls to telephone numbers assigned to a cellular telephone service without prior express consent, and that Defendant places autodialed calls to wrong or reassigned cellular telephone numbers. The Plaintiff is a resident of Humble, Texas. The Defendant is a limited partnership based in Houston, Texas and operates over 30 call centers around the U.S. [BN] The Plaintiff is represented by: Aaron D. Radbil, Esq. GREENWALD DAVIDSON RADBIL PLLC 401 Congress Avenue, Suite 1540 Austin, TX 78701 Tel: (512) 803-1578 Fax: (561) 961-5684 E-mail: aradbil@gdrlawfirm.com GEICO CASUALTY: Butta Suit Moved to Eastern Dist. of Pennsylvania ----------------------------------------------------------------- A case, FRANCIS J. BUTTA, INDIVIDUALLY AND ON BEHALF OF A CLASS OF SIMILARLY SITUATED PERSONS, the Plaintiff, vs. GEICO CASUALTY COMPANY, the Defendant, Case No. 190102146, was removed from the Philadelphia Common Pleas Court, to the U.S. District Court for the Eastern District of Pennsylvania (Philadelphia) on Feb. 15, 2019. The Eastern District of Pennsylvania Court Clerk assigned Case No. 2:19-cv-00675-MAK to the proceeding. The case is assigned to the Hon Mark A. Kearney. The suit alleges insurance contract related violation. GEICO Casualty operates as an insurance company. The company offers auto, motorcycle, home, renters, flood, life, general liability, travel, and business insurance services.[BN] The Plaintiff is represented by: James C. Haggerty, Esq. HAGGERTY GOLDBERG SCHLEIFER & KUPERSMITH PC 1835 Market St Ste. 2700 Philadelphia, PA 19103 Telephone: (267) 350-6609 E-mail: jhaggerty@hgsklawyers.com Attorneys for the Defendant: Kymberly Kochis EVERSHEDS SUTHERLAND (US) LLP 1114 Ave of the Americas 38th FL New York, NY 10036-7703 Telephone: (212) 389-5000 E-mail: kymberlykochis@eversheds-sutherland.com GENERAL MILLS: Settlement in Weninger FLSA Suit Has Prelim Approval ------------------------------------------------------------------- In the case, JOHN WENINGER, on behalf of himself and all others similarly situated, Plaintiffs, v. GENERAL MILLS OPERATIONS LLC, Defendant, Case Case No. 18-CV-321-JPS (E.D. Wis.), Judge Joseph Peter Stadtmueller of the U.S. District Court for the Eastern District of Wisconsin granted the parties' joint motion for preliminary approval of the settlement agreement. On Jan. 30, 2019, the parties filed a joint motion for preliminary approval of their settlement agreement resolving the Plaintiffs' Fair Labor Standards Act ("FLSA") claims against the Defendant. After reviewing the terms of the settlement agreement, the Judge finds that the parties' settlement constitutes a fair and reasonable resolution of bona fide disputes under the FLSA. As such, he will preliminarily approve the parties' settlement agreement and set a date for the fairness hearing. The Judge will adopt the parties' stipulation as to the certification of the collective action, naming John Weninger as the class representative, and designating Walcheske & Luzi, LLC as the class counsel. The parties indicate that the class counsel will petition the Court for reimbursement of attorneys' fees and costs of no more than $113,090 pursuant to the lodestar calculation method. Accordingly, Judge Stadtmueller granted the parties' joint motion and preliminarily approved the parties' settlement agreement. He adopted the parties' stipulation to certify the collective action for the purposes of settlement. He denied as moot the Plaintiffs' unopposed motion to modify the Court's notice protocol order. The class counsel file a petition with the Court for reimbursement of reasonable attorneys' fees, costs, and litigation expenses of no more than $113,090 no later than 21 calendar days prior to the fairness hearing. The fairness settlement hearing is set for March 28, 2019 at 10:30 a.m. All pending dates and deadlines of the amended trial scheduling order be and the same are stayed until further order from the Court. A full-text copy of the Court's Feb. 15, 2019 Order is available at https://is.gd/o3TTMW from Leagle.com. John Weninger, Plaintiff, represented by David M. Potteiger, Walcheske & Luzi LLC, James A. Walcheske -- jwalcheske@walcheskeluzi.com -- Walcheske & Luzi LLC, Matthew J. Tobin , Walcheske & Luzi LLC & Scott S. Luzi -- sluzi@walcheskeluzi.com -- Walcheske & Luzi LLC. General Mills Operations LLC, Defendant, represented by Casey M. Kaiser -- ckaiser@littler.com -- Littler Mendelson PC, John H. Lassetter -- jlassetter@littler.com -- Littler Mendelson PC, Shanthi V. Gaur -- sgaur@littler.com -- Littler Mendelson PC & Sofija Anderson -- sanderson@littler.com -- Littler Mendelson PC. GET FRESH: Collects Biometric Info Without Consent, Ralph Claims ---------------------------------------------------------------- GLEN RALPH, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED v. GET FRESH PRODUCE, INC., Case No. 2019CH02324 (Ill. Cir., Cook Cty., February 21, 2019), alleges that the Defendant captured, collected, received through trade, and/or otherwise obtained biometric identifiers or information of their Illinois employees, like the Plaintiff, without properly obtaining written executed release as required by the Illinois Biometric Information Privacy Act. Get Fresh Produce, Inc., is an Illinois corporation and has at least one place of business in Illinois. Get Fresh Produce operates as a foodservice supply and distribution company.[BN] The Plaintiff is represented by: Brandon M. Wise, Esq. Paul A. Lesko, Esq. PEIFFER WOLF CARR & KANE, APLC 818 Lafayette Ave., Floor 2 St. Louis, MO 63104 Telephone: (314) 833-4825 E-mail: bwise@pwcklegal.com plesko@pwcklegal.com GRAIN PROCESSING: Settles Class Action Over Nuisance Emissions -------------------------------------------------------------- Margaret Stadtwald, writing for Voice of Muscatine, reports that on Tuesday, February 5th at the Muscatine School Board Office, Judge John Telleen approved Grain Processing Corporation's (GPC's) class action settlement. The foundation for the class action lawsuit came in 2012 when eight residents sued GPC for foul-smelling nuisance emissions from their plant. In 2015, the lawsuit became certified when an additional 200 people filed claims. The Iowa Supreme Court affirmed the certification in May of 2017. GPC and the claimants entered judge-ordered mediation beginning in April of 2018, and in October they came to a settlement. According to the terms of the agreement, GPC will pay out a total of $45 million to people included in the class action lawsuit. GPC will also need to spend an additional $6.5 million to install more stringent pollution reduction devices at their plant to prevent further nuisance emissions. The agreement outlines that people who lived within a mile and a half radius of GPC at any time from April 24th of 2007 to September 1st of 2017 can receive monetary compensation. Each individual person of any age looking to collect from the settlement must complete a separate set of paperwork. GPC directors, managers, presidents, senior vice presidents, and vice presidents cannot receive settlement money. People who opted out of the class action lawsuit previously can also not receive settlement money. To learn more about the settlement and to get forms to apply for settlement money, visit www.GPCclassaction.com, call (888)-952-9083, or contact Larew Law Office at (563)-263-2120. Anyone intending to file a claim must have their forms postmarked by March 19th, 2019. [GN] HIGH MAY: Accused by Gao of Not Paying Minimum and Overtime Wages ----------------------------------------------------------------- TIANYI GAO, LIU YU, and LIU LI, individually and on behalf of others similarly situated v. HIGH MAY INC. and DUO WANG, Case No. 1:19-cv-01053 (E.D.N.Y., February 21, 2019), arises from the Defendants' alleged failure to pay minimum and overtime wages required by the Fair Labor Standards Act and the New York Labor Law. High May is a domestic business corporation organized and existing under the laws of the state of New York and maintains its principal place of business in Far Rockaway, New York. The Individual Defendant is an owner, manager, and/or employee of the Corporate Defendant. High May ships goods from producers in the United States to China and vice versa. The Defendants operate a warehouse and a store in Queen County, New York.[BN] The Plaintiffs are represented by: Michael Taubenfeld, Esq. FISHER TAUBENFELD LLP 225 Broadway, Suite 1700 New York, NY 10007 Telephone: (212) 571-0700 Facsimile: (212) 505-2001 E-mail: michael@fishertaubenfeld.com HOT CHICKS: Raham Seeks Minimum Wages & Overtime Pay ---------------------------------------------------- SAMEH ABDEL RAHAM, on behalf of himself, and others similarly situated, the Plaintiffs, vs. HOT CHICKS & BALLERS CORP., dba PLAYERS USA; PLAYERS USA INC., dba PLAYERS USA; KICKS CLOSET SPORTSWEAR INC.; ALI ABADI; and ISMAIL ABADI, the Defendants, Case No. 1:19-cv-01515 (S.D.N.Y., Feb. 18, 2019), seeks to recover unpaid wages and minimum wages; unpaid overtime compensation; liquidated damages; prejudgment and post-judgment interest; and attorneys' fees and costs pursuant to the Fair Labor Standards Act and the New York Labor Law. According to the complaint, the Defendants have willfully committed widespread violations of the FLSA and NYLL by engaging in a pattern and practice of failing to pay its employees, including the Plaintiff, minimum wages and overtime compensation for all hours over 40 each workweek. Work performed by the Plaintiff and similarly situated employees above 40 hours per week was not paid at time and one-half their regular rate of pay (or the minimum wage, when greater), as required by state and federal law, the lawsuit says. The Defendants operate sneaker and apparel stores on Southern Boulevard in the Bronx.[BN] Attorneys for the Plaintiff: Justin Cilenti, Esq. Peter Hans Cooper, Esq. CILENTI & COOPER, PLLC 708 Third Avenue 6th Floor New York, NY 10017 Telephone: (212) 209-3933 Facsimile: (212) 209-7102 E-mail: pcooper@jcpclaw.com INLAND PRODUCTS: Court Enlarges Time to Respond to Dismissal Bid ---------------------------------------------------------------- The United States District Court for the Northern District of California issued an Order enlarging time to file response and reply to Defendants' Motion to Dismiss in the case captioned MONGKOL MAHAVONGTRAKUL, individually and on behalf of other similarly situated individuals, Plaintiff, v. INLAND PRODUCTS, INC., Defendant. Case No. 4:18-cv-07261-HSG. (N.D. Cal.). Plaintiff Mongkol Mahavongtrakul filed his Complaint against Defendant Inland Products, Inc. The Defendant filed a Motion to Dismiss for Lack of Subject-Matter Jurisdiction (Motion) on January 30, 2019, and set a date for the hearing on the Motion for April 25, 2019. The Plaintiff's opposition to the Motion is currently due February 13, 2019, and the Defendant's reply in further support of the Motion is due February 20, 2019. The Plaintiff has sought from the Defendant an enlargement of time to respond to the Motion. The Defendant does not oppose enlargement of time to respond to the Motion. Where have been no other time modifications in this matter and the proposed enlargement of time to respond to the Motion will not affect the date of the Hearing. A full-text copy of the District Court's February 11, 2019 Order is available at http://tinyurl.com/y6rnorf7from Leagle.com. Mongkol Mahavongtrakul, individually and on behlaf of other similarly situated individuals, Plaintiff, represented by Laurence D. King -- lking@kaplanfox.com -- Kaplan Fox & Kilsheimer LLP, Douglas Gregory Blankinship, Finkelstein, Blankinship, Frei-Pearson & Garber, LLP., pro hac vice, Jean M. Sedlak, Finkelstein, Blankinship, Frei-Pearson Garber, LLP & Mario Man-Lung Choi -- mchoi@kaplanfox.com -- Kaplan Fox & Kilsheimer LLP. Inland Products, Inc., Defendant, represented by Michael Irwin Katz, Greenberg Gross LLP & Tyson Keith Hottinger -- thottinger@mabr.com -- Maschoff Brennan. J.C. PENNEY: Court Dismiss Class Action Claims in Garrido --------------------------------------------------------- The United States District Court for the Central District of California issued a Judgment dismissing Class Action Claim in the case captioned STEPHANIE GARRIDO and JAZMIN SOLANO, as aggrieved employees pursuant to the Private Attorneys General Act ("PAGA"), Plaintiffs, v. J.C. PENNEY CORPORATION, INC., a Delaware corporation; J.C. PENNEY COMPANY, INC., a Delaware corporation; and DOES 1 through 10, inclusive, Defendants. Case No. 5:18-cv-02051-JVS-SP. (C.D. Cal.). Pursuant to the terms of the Settlement Agreement, the Plaintiffs' proposed class action claims are dismissed without prejudice. In all other respects, this Action is dismissed with prejudice. Pursuant to the terms of the Settlement Agreement, the Plaintiffs, all Aggrieved Employees, and the State of California waive and forever discharge the Released Parties from the Released Claims, as defined in the Settlement Agreement. A full-text copy of the District Court's February 14, 2019 Judgment is available at http://tinyurl.com/y53b9u6yfrom Leagle.com. Stephanie Garrido, as aggrieved employees pursuant to hte Private Attorneys General Act PAGA & Jazmin Solano, as aggrieved employees pursuant to hte Private Attorneys General Act PAGA, Plaintiffs, represented by Jonathan Sing Lee -- Jonathan.Lee@capstonelawyers.com -- Capstone Law APC, Natalie Torbati, Capstone Law APC, Robert J. Drexler, Jr. -- Robert.Drexler@CapstoneLawyers.com -- Capstone Law APC, Eduardo Santos -- Eduardo.Santos@CapstoneLawyers.com -- Capstone Law APC & Raul Perez -- Raul.perez@capstonelawyers.com -- Capstone Law APC. J.C. Penney Corporation, Inc., Defendant, represented by Ashley L. Allyn -- aallyn@gibsondunn.com -- Gibson Dunn and Crutcher LLP, Dustin Gary May -- dmay@gibsondunn.com -- Gibson Dunn and Crutcher LLP, Katherine V.A. Smith -- ksmith@gibsondunn.com -- Gibson Dunn and Crutcher LLP & Catherine A. Conway -- cconway@gibsondunn.com -- Gibson Dunn and Crutcher LLP. JACKSON, TN: Sued Over Failure to Properly Sworn in Warrants ------------------------------------------------------------ Teri Jelks, writing for WBBJ 7 Eyewitness News, reports that a class-action lawsuit has been filed against the city of Jackson. Both the chief of police and city court clerk have been listed as defendants. In January, WBBJ 7 Eyewitness News spoke to District Attorney General Jody Pickens about numerous warrants out of Jackson City Court that were allegedly not properly sworn in. "Warrants that are not properly attained are void. It's as if they never existed," plaintiff attorney Mark Donahoe said. "It is a technical procedural safeguard that should be done, and the city probably has an increased awareness of how important it is to be done," city attorney Lewis Cobb said. Now a lawsuit has been filed against the city by Steven Cox and Kelly Freeman, who faced charges in city court in 2017 and 2018. "It creates an issue for anyone who was arrested that went through city court, even if it was a felony case where you were later convicted," Mr. Donahoe said. Mr. Donahoe says this is a civil lawsuit involving damages and potential money recovery, and a different suit will need to be filed in order for those affected to attempt to clear their record. According to documents filed in federal court, the plaintiffs do not believe the city of Jackson met the requirements of the 4th and 14th Amendments while arresting and detaining numerous individuals. "We think we will be able to prove that, should this case proceed to trial," Mr. Donahoe said. He also says the suit is not against any specific individual. "Chief Wiser and Clerk Hubbard are served only in their official capacity as representatives of the city," Mr. Donahoe said. "None of this was any type of intention or deliberate," Mr. Cobb said. "It was just some oversights." [GN] JAY'S LANDSCAPING: Fitchborn Seeks Unpaid Wages Under FLSA ---------------------------------------------------------- Joshua Fitchhorn, Benjamin Pollgreen and Christopher Duffield, on behalf of themselves and all others similarly situated v. Jay's Landscaping and Custom Lawn Service, Inc. dba Jay Eubanks Tree Service and Haul-It-Off Professional Debris Removal and John "Jay" Eubanks, Jr., Case No. 1:19-cv-00092 (S.D. Ala., February 26, 2019), seek to recover unpaid overtime wages under the Fair Labor Standards Act. The Plaintiffs alleges that they regularly work in excess of 40 hours per week for the Defendants but were not paid time and one-half for any hours worked in excess of 40 per week, in violation of the FLSA. The Plaintiffs performed landscaping and debris removal services for the Defendants. The Defendant Jay's Landscaping and Custom Lawn Service, Inc. is or was an Alabama company that, during all or part of the time period set forth in the Complaint, was engaged in business in the Southern District of Alabama under its own name and doing business as "Jay Eubanks Tree Service" and "Haul-It-Off Professional Debris Removal". [BN] The Plaintiffs are represented by: Jody Forester Jackson, Esq. JACKSON+JACKSON 2100 Southbridge Parkway, Ste 650 Birmingham, AL 35209 Tel: (205) 414-7467 Fax: (888) 988-6499 E-mail: jjackson@jackson-law.net JL AUDIO: Bishop Files ADA Suit in New York ------------------------------------------- JL Audio, Inc. is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled Cedric Bishop and on behalf of all other persons similarly situated, Plaintiff v. JL Audio, Inc., Defendant, Case No. 1:19-cv-01756 (S.D. N.Y., February 25, 2019). JL Audio is an American manufacturer of consumer audio products. They produce marine, home, and mobile audio products, but are best known for their subwoofers. JL Audio is known as one of the pioneers of the car audio industry.[BN] The Plaintiff is represented by: Jeffrey Michael Gottlieb, Esq. 150 E. 18 St., Suite PHR New York, NY 10003 Tel: (212) 228-9795 Fax: (212) 982-6284 Email: nyjg@aol.com JOHNSON & JOHNSON: Allowed to Block Mandatory Arbitration --------------------------------------------------------- BreakingViews reports that stay classy, Securities and Exchange Commission. The U.S. financial watchdog on Feb. 11 allowed Johnson & Johnson to block a proposal that would have banned shareholders from joining together to sue. So-called class actions are an essential check on corporate fraud, and the SEC deserves credit for resisting pressure to undermine them. Unfortunately, its admirable display of backbone may not last. The latest assault on securities class actions came last November when a small J&J investor asked the healthcare giant to put a proposed ban to a vote at its 2019 annual meeting. If approved, the new bylaw would have forced shareholders to resolve gripes against the company or its directors or officers in private arbitration. The investor argued that class actions expose U.S. public companies to excessive litigation that can cost stockholders billions of dollars. J&J balked, asking the SEC for assurance that it would not sue if the company ditched the proposal. The watchdog agreed because the measure seemed to violate the laws of New Jersey, where J&J is based. Corporate America typically welcomes limits on costly litigation. That's why companies from AT&T to Wells Fargo require employees and customers to resolve disputes individually in the cheaper, faster forum of private arbitration rather than banding together in court. The loss of rights and adequate recompense that arbitration often entails can be seen as more feature than flaw for a company like Johnson & Johnson, which faces, for example, thousands of lawsuits for selling baby powder that allegedly contained asbestos. Yet the firm, which declined to comment, had good reason to reject the proposal. The SEC has long blocked mandatory arbitration of shareholder complaints, citing a prohibition in federal securities laws against waiving the right to go to court. The commission also relies on investor lawsuits to police the market, given that they often produce more and bigger settlements than agency investigations do. When private-equity firm Carlyle tried to tuck a mandatory-arbitration provision into its 2012 IPO filing, for example, the SEC cried foul. Pharmaceutical goliath Pfizer and media outfit Gannett, meanwhile, gained the commission's backing that same year for excluding shareholder proposals that would have blocked investors from pursuing complaints in court. In Johnson & Johnson's case, there was the additional factor of a New Jersey attorney-general opinion saying the arbitration proposal would have been outside the scope of permissible bylaw provisions. It was not far-fetched, though, to believe that the proposal might pass muster with the SEC. Recently appointed Commissioner Hester Peirce said in September that, on arbitration, "the SEC does not have statutory grounds to substitute its judgment for that of shareholders and the companies they own." Commission Chairman Jay Clayton has said that he wants to cut regulations that might discourage companies from going public, though he hasn't mentioned rules against arbitration specifically. He has treated the issue cautiously, saying on Feb. 11 that any decision on the issue "should be made by the commission in a measured and deliberative manner." The pressure for relief from lawsuits is building, though. The number of securities-fraud class actions hovers near record highs, with the 403 filed last year, the second most -- after the 412 in 2017 -- since 2001, when 498 were filed, according to Stanford Law School. Many are no doubt justified, especially in a post-financial-crisis world where the likes of Citigroup, JPMorgan and others have coughed up billions of dollars for transgressions against shareholders. Yet the number of bogus claims is also rising. In 2017, courts dismissed about one-fifth of securities class-action cases within a year of their filing – the most ever, according to Cornerstone Research. Meanwhile, the Supreme Court continues its heavy drumbeat in favor of mandatory arbitration and against class actions. Just in January, the justices ruled unanimously that an arbitrator – not a judge -- gets to decide whether a contract requiring arbitration covers a particular dispute. It was Justice Brett Kavanaugh's first opinion, and it appeared to kill any hope that, as retired Justice Anthony Kennedy's successor, he would help soften the top tribunal's views on the issue. If anything, those views are hardening. Justice Neil Gorsuch, who replaced the late Antonin Scalia on the bench in 2017, is a vocal supporter of arbitration and long-time critic of securities-fraud lawsuits. In the face of these developments, a shift in the SEC's position would be understandable. It would also be a mistake. Countless studies have shown that mandatory arbitration typically deprives individuals of meaningful redress. That's why SEC Commissioner Robert Jackson, for one, has forcefully opposed allowing it in the securities context without an exhaustive rule-making process involving public comments and studies of how investors would be affected. "If we're going to take away investors' right to their day in court," he said in a recent speech, ". . . we should, at least, do so in the light of day." It may make little difference in the end, but there's a good chance that shareholders -- and the public officials obligated to protect them -- won't like what they see. [GN] JONATHAN NEIL: Court Vacates Hearing Schedule in Brown ------------------------------------------------------ The United States District Court for the Eastern District of California issued an Order granting Plaintiff's motion for final approval of a class action settlement in the case captioned TERI BROWN, Plaintiff, v. JONATHAN NEIL AND ASSOCIATES, INC., Defendant. Case No. 1:17-cv-00675-SAB. (E.D. Cal.). Plaintiff Teri Brown filed this action individually and on behalf of all others similarly situated alleging violation of the Fair Debt Collections Practices Act. The Court, having reviewed the record and considering that no class member has objected to the settlement, finds this matter suitable for decision without oral argument. The previously scheduled hearing set on February 13, 2019, is vacated and the parties will not be required to appear at that time. A full-text copy of the District Court's February 11, 2019 Order is available at http://tinyurl.com/y4ap2u5lfrom Leagle.com. Teri Brown, Plaintiff, represented by Ari Marcus -- Ari@MarcusZelman.com -- Marcus & Zelman, LLC, pro hac vice, Yitzchak Zelman -- Yzelman@MarcusZelman.com -- Marcus & Zelman, LLC, pro hac vice & Tammy L. Hussin -- Tammy@HussinLaw.com -- Hussin Law. Jonathan Neil and Associates, Inc., Defendant, represented by Christopher Michael Egan, Porter Scott, APC, Derek Joseph Haynes, Porter Scott, PC & Lynette Mary Komar, Porter Scott. KHODAL MAA INC: Mayo Labor Suit Seeks Unpaid Overtime Wages ----------------------------------------------------------- Esperanza Gutierrez Mayo, individually and on behalf of FLSA Collective Plaintiffs and the Class, Plaintiff, v. Khodal Maa, Inc., Jai Khodi Mata, Inc. and El Rey Supermarket, Dilip Patel, Vinny Patel, Visno Patel, Manny Patel, Mukesh Patel, ABC Corporations 1-5, and John Does 1-5, individually, Defendants, Case No. 19-cv-00993 (D. N.J., January 23, 2019), seeks to recover unpaid minimum wage, unpaid overtime, unpaid wages, liquidated damages and attorneys' fees and costs pursuant to the Fair Labor Standards Act, New Jersey Wage and Hour Law and the New Jersey Wage Collection Law. Defendants operate as Eagle Supermarket and El Rey Supermarket where Mayo worked as a supermarket worker from in or about March 2012 to on or about November 15, 2018. She claims to be denied overtime pay for hours rendered in excess of 40 hours per week and wage statements. [BN] Plaintiff is represented by: Mitchell Schley, Esq. LAW OFFICES OF MITCHELL SCHLEY, LLC 197 Route 18 South South Tower, Suite 3000 East Brunswick, NJ 08816 Telephone: (732) 325-0318 Email: mschley@schleylaw.com KINDRED HEALTHCARE: Stonehocker Seeks OT Pay for Skilled Clinicians ------------------------------------------------------------------- SARAH STONEHOCKER, on behalf of herself and all others similarly situated, the Plaintiff, vs. KINDRED HEALTHCARE OPERATING, LLC and DOES 1-10, the Defendants, Case No. CGC-19-573756 (Cal. Super. Ct., Feb. 14, 2019), concerns Kindred's strict and impracticable minimum Patient Care Ratio ("minimum PCR") productivity standard and the attendant systemic failure to pay skilled clinicians for overtime hours worked and to pay wages when due. Skilled Clinicians include physical therapists, occupational therapists, and speech therapists who worked at Kindred's Skilled Nursing Facilities ("SNFs") throughout the State of California. According to the complaint, SCs did not typically report all overtime hours worked to managers because Kindred sought to limit or eliminate overtime hours worked and managers reprimanded SCs for working overtime hours. Indeed, management circulated an "overtime watch list" for California "areas". On the infrequent occasions on which Class Members did report overtime hours worked, Kindred management would oftentimes simply change Class Members' time records so that the records showed fewer overtime hours worked than were actually worked, or no overtime hours worked at all. As a result of Kindred's failure to pay overtime wages, Class Members, or an identifiable subset, were not paid wages owed at the time of quitting or discharge, the lawsuit says. Kindred Healthcare Operating, Inc. owns, operates, and manages the Cordova Rehabilitation and Nursing Center. It was formerly known as Vencor Operating, Inc. and changed its name to Kindred Healthcare Operating, Inc. in April 2001.[BN] Attorney for the Plaintiff: Matthew D. Carlson, Esq. LAW OFFICE OF MATTHEW D. CARLSON 50 Fountain Plaza, Suite 1400, #206 Buffalo, NY 14202 Telephone: (716) 242-1234 E-mail: mdcarlson@mdcarlsonlaw.com KOHL'S DEPARTMENT: Court Grants Jury Trial in J. Underwood Suit --------------------------------------------------------------- The United States District Court for the Eastern District of Pennsylvania issued a Memorandum Opinion denying Defendants' Motion to Deny Jury Trial in the case captioned JENNIFER UNDERWOOD, on Behalf of Herself and All Others Similarly Situated, Plaintiffs, v. KOHL'S DEPARTMENT STORES, INC. and CAPITAL ONE, NATIONAL ASSOCIATION, Defendants, Civil Action No. 15-730. (E.D. Pa.). In the instant motion, the Defendants argue that the Plaintiff's claim is equitable in nature, and thus she is not entitled to a jury trial. This case involves a class action, brought by named Plaintiff Jennifer Underwood against Defendants Kohl's Department Stores, Inc. and Capital One, National Association, arguing that the two companies were unjustly enriched at her and the class's expense. Plaintiff contends that Defendants profited from a deficient credit-monitoring product called PrivacyGuard that was sold to her and members of the class. In particular, when Plaintiff and class members did not complete the second step in registering for PrivacyGuard services, they did not receive the full range of promised credit-monitoring services. The Seventh Amendment to the Constitution provides that in Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved. The elements of unjust enrichment are: (1) an enrichment (2) an impoverishment (3) a relation between the enrichment and impoverishment (4) the absence of justification, and (5) the absence of a remedy provided by law. The first step, comparing the Plaintiff's unjust enrichment claim to 18th century actions weighs in favor of finding this claim to be legal, rather than equitable. The modern formulation of the term 'unjust enrichment' is actually the scholarly creation of the American Law Institute and is a synthesis of both law and equity principles that existed in the era of the divided bench. Nonetheless, courts have held that similar actions are quasi-contractual where a plaintiff contends that she provided funds to defendants in reliance on certain misrepresentations that defendants made and that defendants have thereby been unjustly enriched. A quasi-contractual claim is akin to the assumpsit actions of eighteenth-century England, which were indisputably law cases. The second, more important step, whether the remedy sought is legal or equitable in nature also weighs in favor of finding a right to a jury trial. The Plaintiff seeks restitution of funds that were paid to the Defendants for limited benefits under the PrivacyGuard service enhancement. Restitution is not per se legal or equitable in nature. Applying these cases to the instant matter, the restitution sought here is legal, not equitable, in nature. There is no specifically identified fund or account from which the Plaintiff seeks to draw; rather, the Plaintiff seeks recovery from the Defendants' assets generally. On balance, and particularly given that the second factor is the more important, the claim at issue here is legal rather than equitable in nature. Accordingly, the Seventh Amendment right to a jury trial attaches. The Defendants' motion therefore shall be denied. A full-text copy of the District Court's February 14, 2019 Memorandum Opinion is available at http://tinyurl.com/y3jxymlvfrom Leagle.com. JENNIFER UNDERWOOD, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, Plaintiff, represented by ANGELA EDWARDS, LAW OFFICE OF ANGELA EDWARDS, CHARLES J. KOCHER -- ckocher@smbb.com -- SALTZ MONGELUZZI BARRETT & BENDESKY PC, LEE S. SHALOV -- lshalov@mclaughlinstern.com -- MCLAUGHLIN & STERN LLP, PATRICK HOWARD -- phoward@smbb.com -- SALTZ MONGELUZZI BARRETT & BENDESKY, WADE C. WILKINSON -- wwilkinson@mclaughlinstern.com -- MCLAUGHLIN & STERN LLP & SIMON BAHNE PARIS -- sparis@smbb.com -- SALTZ MONGELUZZI BARRETT & BENDESKY, P.C. KOHL'S DEPARTMENT STORES, INC., Defendant, represented by MARTIN C. BRYCE, Jr. -- BRYCE BALLARDSPAHR.COM -- BALLARD SPAHR ANDREWS AND INGERSOLL, L.L.P., DANIEL J.T. MCKENNA -- MCKENNAD BALLARDSPAHR.COM -- BALLARD SPAHR ANDREWS & INGERSOLL, LLP, ELANOR A. MULHERN -- MULHERNE BALLARDSPAHR.COM -- BALLARD SPAHR LLP & JOSEPH J. SCHUSTER, GOLDMAN SACHS & CO. CAPITAL ONE, NATIONAL ASSOCIATION, Defendant, represented by MARTIN C. BRYCE, Jr., BALLARD SPAHR ANDREWS AND INGERSOLL, L.L.P., DANIEL J.T. MCKENNA, BALLARD SPAHR ANDREWS & INGERSOLL, LLP & ELANOR A. MULHERN, BALLARD SPAHR LLP. L PLUS L: Zamora Seeks Minimum & OT Pay for Restaurant Staff ------------------------------------------------------------ FERNANDO ZAMORA, on behalf of himself, and others similarly situated, the Plaintiff, vs. L PLUS L PRODUCTIONS LLC, dba OFRENDA RESTAURANT; or any other business entity doing business as OFRENDA RESTAURANT, located at 113 7th Avenue South, New York, New York 10014, the Defendants,Case No. 1:19-cv-01506 (S.D.N.Y., Feb. 18, 2019), seeks to recover unpaid wages and minimum wages; unpaid overtime compensation; liquidated damages; prejudgment and post-judgment interest; and attorneys' fees and costs pursuant to the Fair Labor Standards Act and the New York Labor Law. According to the complaint, the Plaintiff wss employed by the Defendants as a food preparer and cook for the Defendants' restaurant known as "Ofrenda". The Defendants knowingly and willfully failed to pay the Plaintiff lawfully earned wages in contravention of the FLSA and New York Labor Law. The Plaintiffs worked over 40 hours per week in six shifts, and his hours ranged from 50-70 hours per week. The Plaintiff was not paid hourly for all hours worked, or overtime compensation, the lawsuit says.[BN] Attorneys for the Plaintiff: Justin Cilenti, Esq. Peter H. Cooper, Esq. CILENTI & COOPER PLLC 708 Third Avenue - 6th Floor New York, NY 10017 Telephone: (212) 209-3933 Facsimile: (212) 209-7102 E-mail: pcooper@jcpclaw.com LIGHTHOUSE MARINA: Faces Bishop Suit Alleging ADA Breach --------------------------------------------------------- A class action lawsuit has been filed against Lighthouse Marina, Inc. The case is styled as Cedric Bishop and On Behalf of All Other Persons Similarly Situated, Plaintiff v. Lighthouse Marina, Inc., Defendant, Case No. 1:19-cv-01814 (S.D. N.Y., Feb. 26, 2019). The Plaintiff filed the case under the Americans with Disabilities Act. Lighthouse Marina is a second generation family owned marina. Their "Full-Service Marina with a Resort Atmosphere" is one of the premier marinas on Long Island.[BN] The Plaintiff is represented by: Jeffrey M. Gottlieb, Esq. 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (212) 228-9795 Fax: (212) 982-6284 Email: nyjg@aol.com LOUIS MARINE: Bishop Files ADA Suit in S.D. New York ---------------------------------------------------- A class action lawsuit has been filed against Louis Marine, Ltd. The case is styled as Cedric Bishop and On Behalf of All Other Persons Similarly Situated, Plaintiff v. Louis Marine, Ltd., Defendant, Case No. 1:19-cv-01816 (S.D. N.Y., Feb. 26, 2019). The Plaintiff filed the case under the Americans with Disabilities Act. Louis Marine is a family-owned business and one of the most successful marine retailers in the country. [BN] The Plaintiff is represented by: Jeffrey M. Gottlieb, Esq. 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (212) 228-9795 Fax: (212) 982-6284 Email: nyjg@aol.com MARTIN-BROWER CO: Court OKs Cy Pres Beneficiary in J. Titus Suit ---------------------------------------------------------------- The United States District Court for the Eastern District of California issued an Order approving Proposed Cy Pres Beneficiary in the case captioned JUSTIN TITUS, individually and on behalf of all others similarly situated, Plaintiff, v. THE MARTIN-BROWER COMPANY, LLC; and DOES 1-100 inclusive, Defendants. Case No. 2:17-cv-00558-JAM-GGH. (E.D. Cal.). Having considered the Stipulation of the parties, and good cause appearing therefore, the Court approves St. Christopher Truckers Development and Relief Fund as the cy pres beneficiary of the class action Settlement in this action, and modifies paragraph 19 of the Final Approval Order nunc pro tunc as follows: the Settlement Administrator, Atticus Administration, LLC, shall send all funds associated with settlement checks that have not been cashed after the check cashing deadline to St. Christopher Truckers Development and Relief Fund. A full-text copy of the District Court's February 14, 2019 Order is available at http://tinyurl.com/y3swut25from Leagle.com. Justin Titus, Plaintiff, represented by Craig Justin Ackermann -- cja@ackermanntilajef.com -- Ackermann & Tilajef, P.C.,Nicholas John Scardigli -- nscardigli@mayallaw.com -- Mayall Hurley, PC, Robert Joshua Wasserman -- rwasserman@mayallaw.com -- Mayall Hurley, PC, Vladimir Joseph Kozina -- vjkozinaj@mayallaw.com -- Mayall Hurley, P.C. & William J. Gorham, III -- wgorham@mayallaw.com -- Mayall Hurley, PC. Martin-Brower Company, LLC, Defendant, represented by Reiko Linda Furuta -- rfuruta@seyfarth.com -- Seyfarth Shaw LLP & David D. Jacobson -- djacobson@seyfarth.com -- Seyfarth Shaw LLP. MAUI JIM: Bishop Alleges Violation under Disabilities Act --------------------------------------------------------- Maui Jim, Inc. is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled Cedric Bishop and on behalf of all other persons similarly situated, Plaintiff v. Maui Jim, Inc., Defendant, Case No. 1:19-cv-01753 (S.D. N.Y., February 25, 2019). Maui Jim is a Peoria, Illinois-based manufacturer of sunglasses. The company was founded in Lahaina, Hawaii in 1980. As of 2015, the company was the third largest producer of sunglasses in the world.[BN] The Plaintiff is represented by: Jeffrey Michael Gottlieb, Esq. 150 E. 18 St., Suite PHR New York, NY 10003 Tel: (212) 228-9795 Fax: (212) 982-6284 Email: nyjg@aol.com MAXWELL TECHNOLOGIES: Leggett Files Suit Over Sale to Tesla ----------------------------------------------------------- Kip Leggett, on behalf of himself and all others similarly situated, Plaintiff v. Maxwell Technologies, Inc., Richard Bergman, Steve Bilodeau, Jörg Buchheim, Franz J. Fink, Burkhard Goeschel, Ilya Golubovich, John Mutch, Tesla, Inc., and Cambria Acquisition Corp., Defendants, Case No. 3:19-cv-00377-LAB-JLB (S.D. Cal., February 26, 2019) is a stockholder class action on behalf of Plaintiff and all other public stockholders of the Defendant against Maxwell, the Company's Board of Directors for violations of the Securities and Exchange Act of 1934 and for breaches of fiduciary duty as a result of Defendants' efforts to sell the Company to Tesla, Inc. and Cambria Acquisition Corp., at an unfair process and for an unfair price. On February 20, 2019, Maxwell filed a Solicitation/Recommendation Statement on Schedule 14D-9 with the SEC in support of the Proposed Transaction. Also, on February 20, 2019, Tesla filed a Registration Statement on Schedule S-4 with the SEC in support of the Proposed Transaction. The complaint asserts that the Proposed Transaction is unfair and undervalued for a number of reasons. Significantly, the 14D-9 describes an insufficient sales process in which the Board rushed through an inadequate "sales process" in which the only end goal was a sale to Tesla, and in proper fiduciary measures such as a special committee and market were undertaken only after Tesla had made several bids and had threatened to end its customer relationship with Maxwell should the Company not accept its offer to purchase it. In further violation of their fiduciary duties, Defendants caused to be filed the materially deficient Proxy Materials on February 20, 2019 with SEC in an effort to solicit stockholders to tender their Maxwell shares in favor of the Proposed Transaction. The Proxy Materials are materially deficient, deprives Maxwell stockholders of the information they need to make an intelligent, informed and rational decision of whether to tender their shares in favor of the Proposed Transaction, and is thus in breach of the Defendants fiduciary duties, says the complaint. Plaintiff is a citizen of California and, has been a Maxwell stockholder. Maxwell develops, manufactures, and markets energy storage and power delivery products worldwide. Maxwell is incorporated under the laws of the State of Delaware. Individual Defendants have been directors of the Company.[BN] The Plaintiff is represented by: Evan J. Smith, Esq. Ryan P. Cardona, Esq. BRODSKY & SMITH, LLC 9595 Wilshire Blvd., Ste. 900 Phone: (877) 534-2590 Facsimile (310) 247-0160 Email: esmith@brodskysmith.com rcardona@brodskysmith.com MDL 2875: Valsartan Products Liability Litigation to D.N.J. ----------------------------------------------------------- The United States Judicial Panel on Multidistrict Litigation issued an Order transferring the Action in the case captioned IN RE: VALSARTAN N-NITROSODIMETHYLAMINE (NDMA) CONTAMINATION PRODUCTS LIABILITY LITIGATION. MDL No. 2875. (J.P.M.L.). The Plaintiff in one action moves under 28 U.S.C. Section 1407 to centralize 10 actions, as listed on Schedule A, in the District of New Jersey. This litigation arises out of an investigation by the U.S. Food and Drug Administration into impurities found in generic drug products containing valsartan, a medication indicated for the treatment of high blood pressure and other conditions. During the course of the FDA investigation, a number of voluntary recalls of generic valsartan medications were issued. Purchasers of recalled lots of generic valsartan subsequently filed actions alleging economic losses. The initial wave of consumer class actions was followed by actions alleging personal injuries from the ingestion of affected valsartan medications, as well as other related litigation. The principal common defendants in this litigation, Zhejiang Huahai Pharmaceutical Co., Ltd. (ZHP) and its U.S. affiliates Prinston Pharmaceutical Inc., Solco Healthcare U.S., LLC, and Huahai U.S., Inc. (together, the ZHP defendants) along with pharmacy defendants Walgreen Co. and Throggs Neck Pharmacy support centralization of the IO actions on the motion in the District of New Jersey. They ask the Panel to limit the scope of the MDL solely to consumer class actions, though they acknowledged shared factual issues among the personal injury and consumer actions at oral argument. On the basis of the papers filed and the hearing held, the Court finds that these actions involve common questions of fact, and that centralization will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation. All actions involve common factual questions arising out of allegations that plaintiffs purchased or used generic formulations of valsartan medications containing the nitrosamine impurities NDMA and/or NDEA; that these impurities present a risk of cancer and liver damage; and that defendants knew, or should have known, of the impurities as early as 2012. All actions stem from the same FDA investigation and voluntary recall announced in July 2018, and the voluntary recalls are ongoing. Although the investigation, and the earliest-filed actions, focused on ZHP as the source of the alleged impurities, the FDA investigation and the actions before the Panel now encompass alleged industry-wide issues concerning the production of the valsartan active pharmaceutical ingredient (API) which will be common to all actions. The Court finds that Section 1404 transfer is not a practicable alternative to centralization, given the number of actions, districts, and counsel for plaintiffs and defendants. There are presently a total of 40 related actions pending in 22 districts, which involve over a dozen distinct slates of the plaintiffs' counsel and some 20 defendants, most of whom do not share counsel. These circumstances portend significant inefficiencies and obstacles to Section 1404 transfer of the related actions to a single district. The number of involved districts and counsel also would make efforts to informally coordinate discovery and pretrial motions impracticable. The District of New Jersey is an appropriate transferee district for this litigation. Five actions on the motion and seven potential tag-along actions are pending in this district. Many of the defendants have their U.S. headquarters in New Jersey, including ZIIP's U.S. affiliates, which are named in nearly all actions, as well as Hetcro USA Inc., Camber Pharmaceuticals, Inc., and Torrent Pharma, Inc. Thus, common documents and witnesses likely will be located in this district. Nearly all responding parties support, or do not oppose, the District of New Jersey as their first or second choice. Judge Robert B. Kugler is an experienced transferee judge with the willingness and ability to manage this litigation. We are confident that he will steer this litigation on a prudent course. That the actions listed on Schedule A and pending outside the District of New Jersey are transferred to the District of New Jersey and, with the consent of that court, assigned to the Honorable Robert B. Kugler for coordinated or consolidated pretrial proceedings. That, in light of this opinion, MDL No. 2875 is renamed In re: Valsartan Products Liability Litigation. A full-text copy of the Panel's February 14, 2019 Order is available at http://tinyurl.com/y26gqq9cfrom Leagle.com. MIDLAND BOAT: Faces Bishop Suit Asserting ADA Violation ------------------------------------------------------- Midland Boat Sales Corp. d/b/a Kehl's Family Boating is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled Cedric Bishop and on behalf of all other persons similarly situated, Plaintiff v. Midland Boat Sales Corp. d/b/a Kehl's Family Boating, Defendant, Case No. 1:19-cv-01811 (S.D. N.Y., February 26, 2019). Midland Boat Sales Corp. d/b/a Kehl's Family Boating is a marine dealer in Lindenhurst, New York.[BN] The Plaintiff is represented by: Jeffrey Michael Gottlieb, Esq. 150 E. 18 St., Suite PHR New York, NY 10003 Tel: (212) 228-9795 Fax: (212) 982-6284 Email: nyjg@aol.com MIDLAND CREDIT: Moore Suit Moved to Eastern District of New York ---------------------------------------------------------------- A case, Samantha Moore on behalf of herself and all others similarly situated, the Plaintiff, vs. Midland Credit Management, Inc., the Defendant, Case No. 618324/2018, was removed from the Supreme Court of the State of New York, Suffolk County, to the U.S. District Court for the Eastern District of New York (Central Islip) on Feb. 18, 2019. The Eastern District of New York Court Clerk assigned Case No. 2:19-cv-00959 to the proceeding. The suit demands $501,000 and alleges Fair Debt Collection Act violation. Midland Credit, a licensed debt collector, assists customers in resolving past-due financial obligations through various education and payment plans. The company was founded in 1953 and is based in San Diego, California. Midland Credit Management, Inc. operates as a subsidiary of Encore Capital Group, Inc.[BN] The Plaintiff appears pro se. Attorneys for Midland Credit Management, Inc.: Matthew B Corwin, Esq. Ellen Beth Silverman, Esq. HINSHAW & CULBERTSON, LLP 800 Third Avenue, 13th Floor New York, NY 10022 Telephone: (212) 471-6200 Facsimile: (212) 935-1166 E-mail: mcorwin@hinshawlaw.com esilverman@hinshawlaw.com MOLSON COORS: Mathes Sues over Misleading Finacial Report --------------------------------------------------------- Jacob Mathes individually and on behalf of all other persons similarly situated, the Plaintiff, vs. MOLSON COORS BREWING COMPANY, MARK R. HUNTER, and TRACEY I. JOUBERT, the Defendants, Case No. 1:19-cv-01162 (N.D. Ill., Feb. 15, 2019), seeks to recover compensable damages caused by the Defendants' violations of federal securities laws and pursue remedies under the Securities Exchange Act of 1934. The case is a federal securities class action on behalf of a class consisting of all persons and entities, other than Defendants and their affiliates, who purchased publicly traded Molson Coors securities from February 14, 2017 through February 11, 2019, both dates inclusive. According to the complaint, on October 11, 2016, Molson Coors completed its acquisition of SABMiller plc's 58% stake in MillerCoors LLC, the joint venture formed in the United States and Puerto Rico by both companies in 2008. On February 14, 2017, Molson Coors filed a Form 10-K with the SEC, which provided its financial results and position for the fiscal year ended December 31, 2016 (the "2016 10-K"). The 2016 10-K was signed by Defendants Hunter and Joubert. The 2016 10-K contained signed certifications pursuant to the Sarbanes-Oxley Act of 2002 ("SOX") by Defendants Hunter and Joubert attesting to the accuracy of financial reporting, the disclosure of any material changes to the Company’s internal control over financial reporting and the disclosure of all fraud. The 2016 10-K stated the Company’s internal control over financial reporting was effective, excluding the internal control over financial reporting at its recently acquired stake in MillerCoors LLC. On February 12, 2019, before the market opened, Molson Coors announced that its "previously issued consolidated financial statements as of and for the years ended December 31, 2017 and December 31, 2016 should be restated and no longer be relied upon." On this news, shares of Molson Coors fell $6.17 per share or approximately 9.5% to close at $59.19 per share on February 12, 2019, damaging investors. As a result of Defendants' wrongful acts and omissions, and the precipitous decline in the market value of the Company's common shares, the Plaintiff and other Class members have suffered significant losses and damages, the lawsuit says. Molson Coors manufactures and sells beer and other beverage products in the United States, Canada, Europe, and internationally. The Company is a Delaware corporation. The headquarters of the Company's U.S. segment is located in Chicago, Illinois.[BN] Counsel for the Plaintiff: Carl V. Malmstrom, Esq. WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLC 111 W. Jackson St., Suite 1700 Chicago, IL 60602 Telephone: (312) 984-0000 Facsimile: (312) 214-3110 E-mail: malmstrom@whafh.com - and - Laurence M. Rosen, Esq. THE ROSEN LAW FIRM, P.A. Phillip Kim 275 Madison Avenue, 34th Floor New York, NY 10016 Telephone: (212) 686-1060 Facsimile: (212) 202-3827 E-mail: pkim@rosenlegal.com lrosen@rosenlegal.com MONSANTO COMPANY: Jung Sues for Injury Over Roundup Exposure ------------------------------------------------------------ Gerhard Jung, Plaintiffs, v. Monsanto Company, Defendant, Case No. 4:19-cv-00302 (E.D. Mo., February 25, 2019) is an action for damages suffered by Plaintiff as a direct and proximate result of Defendant's negligent and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, advertising, distribution, labeling, and/or sale of the herbicide Roundup, containing the active ingredient glyphosate. In 1996, the New York Attorney General ("NYAG") filed a lawsuit against Monsanto based on its false and misleading advertising of Roundup products. Specifically, the lawsuit challenged Monsanto's general representations that its spray-on glyphosate-based herbicides, including Roundup, were "safer than table salt" and "practically non-toxic" to mammals, birds, and fish. Monsanto did not alter its advertising in the same manner in any state other than New York, and on information and belief still has not done so today. Plaintiff Gerhard Jung is a resident and citizen of Hancock County, Illinois. The Plaintiff developed Non-Hodgkin's Lymphoma in 2015. He brings this action for personal injuries sustained by exposure to Roundup. Monsanto Company is a Delaware corporation, who advertises and sells goods, specifically Roundup, in the State of Missouri.[BN] The Plaintiff is represented by: Seth S. Webb, Esq. BROWN & CROUPPEN, P.C. 211 North Broadway, Suite 1600 St. Louis, MO 63102 Phone: (314) 222-2222 telephone Facsimile: (314) 421-0359 Email: sethw@getbc.com MONTAUK YACHT: Bishop Alleges Violation under Disabilities Act -------------------------------------------------------------- Montauk Yacht Sales, LLC is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled Cedric Bishop and on behalf of all other persons similarly situated, Plaintiff v. Montauk Yacht Sales, LLC, Defendant, Case No. 1:19-cv-01807 (S.D. N.Y., February 25, 2019). Montauk Yacht Sales, LLC is a Yacht broker in Freeport, New York.[BN] The Plaintiff is represented by: Jeffrey Michael Gottlieb, Esq. 150 E. 18 St., Suite PHR New York, NY 10003 Tel: (212) 228-9795 Fax: (212) 982-6284 Email: nyjg@aol.com MRS BPO: Violates TCPA, Giles Suit Alleges ------------------------------------------ Debbie Giles, on behalf of herself and all others similarly situated v. MRS BPO, LLC, Case No. 1:19-cv-06907 (D. N.J., February 26, 2019), is brought against the Defendant for violation of the Telephone Consumer Protection Act. The Plaintiff seeks damages resulting from the illegal actions of the Defendant of negligently placing automated text messages to the Plaintiff's cellular phone. MRS BPO is debt collector that operates an aggressive contact schedule which bombards unsuspecting consumers, with whom it has no relationship, with automated text messages. The Plaintiff is such a consumer. She does not owe a debt to MRS BPO directly or indirectly, yet MRS BPO has repeatedly contacted her in an attempt to reach another, unrelated individual. The Plaintiff is a resident of Sand Springs, Oklahoma. The Defendant MRS BPO is a New Jersey corporation with its principal place of business located at 1930 Olney Avenue, Cherry Hill, New Jersey 08003. [BN] The Plaintiff is represented by: Sofia Balile, Esq. LEMBERG LAW, LLC 43 Danbury Road, 3rd Floor Wilton, CT 06897 Tel: (203) 653-2250 Fax: (203) 653-3424 MY ROULA INC: Perros Hits Missed Breaks, Claims Overtime Pay ------------------------------------------------------------ Debra Perros, individually and on behalf of others similarly situated, Plaintiffs, v. My Roula, Inc., Michael C. Moudatsos, Sr. and Michael C. Moudatso, Jr., Defendants, Case No. 19-cv-00584 (E.D. N.Y., January 30, 2019), seeks to recover unpaid minimum and overtime wages and redress for failure to provide itemized wage statements pursuant to the Fair Labor Standards Act of 1938 and New York Labor Law, including applicable liquidated damages, interest, attorneys' fees and costs. Defendants own, operate, or control Mike Jr.'s Richmond Diner and Mike's Place located at 4677 Hylan Boulevard Staten Island, New York 10312 and 3954 Richmond Avenue Staten Island, New York 10312, respectively, where Perros worked as a waitress. Perros worked between 60 to 65 hours a week without meal breaks during her 12-13-hour daily shifts. Defendants failed to compensate employees the minimum wage for hours over 33-35, overtime premiums and spread-of-hour pay, asserts the complaint. [BN] Plaintiff is represented by: Emre Polat, Esq. POLAT LAW GROUP, PLLC 45 Broadway, Suite 1420 New York, NY 10006 Tel: (212) 480-4500 Email: emre@polatlawyers.com NATIONAL COLLEGIATE: McCormick Files Class Suit in N.D. Illinois ---------------------------------------------------------------- A class action lawsuit has been filed against National Collegiate Athletic Association. The case is styled as Michael McCormick individually and on behalf of all others similarly situated, Plaintiff v. National Collegiate Athletic Association, The Johns Hopkins University, Defendants, Case No. 1:19-cv-01073 (N.D. Ill., Feb. 26, 2019). The National Collegiate Athletic Association is a non-profit organization which regulates athletes of 1,268 North American institutions and conferences. The Johns Hopkins University is a private research university in Baltimore, Maryland.[BN] The Plaintiff is represented by: Jeffrey Lewis Raizner, Esq. Raizner Slania, Llp 2402 Dunlavy Street Houston, TX 77006 Phone: (713) 554-9099 Email: jraizner@raiznerlaw.com NATIONWIDE CREDIT: Dash Suit Moved to Eastern District of New York ------------------------------------------------------------------ A case, Howard Dash, on behalf of himself and all others similarly situated, the Plaintiff, vs. Nationwide Credit, Inc., the Defendant, Case No. 613012/2018, was removed from the Supreme Court of the State of New York, Nassau County, to the U.S. District Court for the Eastern District of New York (Central Islip ) on Feb. 15, 2019. The Eastern District of New York assigned Case No. 2:19-cv-00914 to the proceeding. The lawsuit demands $501,000 and alleges Fair Debt Collection Act violation. Nationwide Credit, Inc., a collection agency, provides customer relationship and accounts receivable management services.[BN] The Plaintiff appears pro se. Attorneys for Nationwide Credit, Inc.: Matthew B Corwin, Esq. Ellen Beth Silverman, Esq. HINSHAW & CULBERTSON, LLP 800 Third Avenue, 13th Floor New York, NY 10022 Telephone: (212) 471-6200 Facsimile: (212) 935-1166 E-mail: mcorwin@hinshawlaw.com esilverman@hinshawlaw.com NATIONWIDE CREDIT: Demartino Suit Moved to E.D. New York -------------------------------------------------------- A case, Adele Demartino, on behalf of herself and all others similarly situated, the Plaintiff, vs. Nationwide Credit, Inc. and Altisource Portfolio Solutions, S.A., the Defendants, Case No. 617189/2018, was removed from the Supreme Court of the State of New York, Nassau County, to the U.S. District Court for the Eastern District of New York (Central Islip) on Feb. 15, 2019. The Eastern District of New York Court Clerk assigned Case No. 2:19-cv-00915 to the proceeding. The suit demands $501,000 and alleges Fair Debt Collection Act violation. Nationwide Credit, Inc., a collection agency, provides customer relationship and accounts receivable management services.[BN] The Plaintiff appears pro se. Attorneys for Nationwide Credit, Inc.: Matthew B Corwin, Esq. Ellen Beth Silverman, Esq. HINSHAW & CULBERTSON, LLP 800 Third Avenue, 13th Floor New York, NY 10022 Telephone: (212) 471-6200 Facsimile: (212) 935-1166 E-mail: mcorwin@hinshawlaw.com esilverman@hinshawlaw.com NCAA: Keith Williams Sues over Safety of Concord Student-Athletes ----------------------------------------------------------------- KEITH WILLIAMS, individually and on behalf of all others similarly situated, the Plaintiff, vs. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, the Defendant, Case No. 1:19-cv-709 (S.D. Ind., Feb. 18, 2019), seeks redress for injuries sustained a result of Defendant's reckless disregard for the health and safety of Concord University ("Concord") student-athletes. While in school, Concord football players were under Defendant's care. Unfortunately, Defendant did not care about the off-field consequences that would haunt students for the rest of their lives. Despite knowing for decades of a vast body of scientific research describing the danger of traumatic brain injuries ("TBIs") like those Plaintiff experienced, Defendant failed to implement adequate procedures to protect Plaintiff and other Concord football players from the long-term dangers associated with them. They did so knowingly and for profit. As a direct result of Defendant's acts and omissions, Plaintiff and countless former Concord football players suffered brain and other neurocognitive injuries from playing NCAA football. As such, Plaintiff brings this Class Action Complaint in order to vindicate those players' rights and hold the NCAA accountable, the lawsuit says. NCAA is a non-profit organization which regulates athletes of 1,268 North American institutions and conferences.[BN] Counsel for the Plaintiff and the Putative Class: Jeff Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Telephone: (713) 554 9099 Facsimile: (713) 554 9098 E-mail: efile@raiznerlaw.com - and - Jay Edelson, Esq. Benjamin H. Richman, Esq. Rafey S. Balabanian, Esq. EDELSON PC 350 North LaSalle Street, 14th Floor Chicago, IL 60654 Telephone: (312) 589 6370 Facsimile: (312) 589 6378 E-mail: rbalabanian@edelson.com jedelson@edelson.com brichman@edelson.com NCAA: Kerns Sues over Safety of IUB Student-Athletes ---------------------------------------------------- TOBI KERNS, individually and on behalf of all others similarly situated, the Plaintiff, vs. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, the Defendant, Case No. 1:19-cv-00686-JMS-DML (S.D. Ind. Feb. 15, 2019), seeks redress for injuries sustained a result of Defendant's reckless disregard for the health and safety of generations of Indiana University, Bloomington ("IUB") student-athletes. According to the complaint, nearly 100,000 student-athletes sign up to compete in college football each year, and it's no surprise why. Football is America's sport and Plaintiff and a Class of football players were raised to live and breathe the game. During football season, there are entire days of the week that millions of Americans dedicate to watching the game. On game days, hundreds of thousands of fans fill stadium seats and even more watch around the world. Before each game, these players -- often mere teenagers -- are riled up and told to do whatever it takes to win and, when playing, are motivated to do whatever it takes to keep going. But up until 2010, NCAA kept players and the public in the dark about an epidemic that was slowly killing college athletes. During the course of a college football season, athletes absorb more than 1,000 impacts greater than 10 Gs (gravitational force) and, worse yet, the majority of football-related hits to the head exceed 20 Gs, with some approaching 100 Gs. To put this in perspective, if you drove your car into a wall at 25 miles per hour and weren't wearing a seatbelt, the force of you hitting the windshield would be around 100 Gs. Thus, each season these 18, 19, 20, and 21-year-old student-athletes are subjected to repeated car accidents. Over time, the repetitive and violent impacts to players' heads led to repeated concussions that severely increased their risks of long-term brain injuries, including memory loss, dementia, depression, Chronic Traumatic Encephalopathy ("CTE"), Parkinson's disease, and other related symptoms. Meaning, long after they played their last game, they are left with a series of neurological events that could slowly strangle their brains. For decades, NCAA knew about the debilitating long-term dangers of concussions, concussion-related injuries, and sub-concussive injuries (referred to as "traumatic brain injuries" or "TBIs") that resulted from playing college football, but recklessly disregarded this information to protect the very profitable business of "amateur" college football. While in school, IUB football players were under Defendant's care. Unfortunately, Defendant did not care about the off-field consequences that would haunt students for the rest of their lives. Despite knowing for decades of a vast body of scientific research describing the danger of traumatic brain injuries ("TBIs") like those Plaintiff experienced, Defendant failed to implement adequate procedures to protect Plaintiff and other IUB football players from the long-term dangers associated with them. They did so knowingly and for profit. As a direct result of Defendant's acts and omissions, Plaintiff and countless former IUB football players suffered brain and other neurocognitive injuries from playing NCAA football. As such, Plaintiff brings this Class Action Complaint in order to vindicate those players' rights and hold the NCAA accountable, the lawsuit says. NCAA is a non-profit organization which regulates athletes of 1,268 North American institutions and conferences.[BN] Counsel for Plaintiff and the Putative Class: Jeff Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Telephone: (713) 554 9099 Facsimile: (713) 554 9098 E-mail: efile@raiznerlaw.com - and - Jay Edelson, Esq. Benjamin H. Richman, Esq. Rafey S. Balabanian, Esq. EDELSON PC 350 North LaSalle Street, 14th Floor Chicago, IL 60654 Telephone: (312) 589 6370 Facsimile: (312) 589 6378 E-mail: rbalabanian@edelson.com jedelson@edelson.com brichman@edelson.com NCAA: Milburn Sues over Safety of Toledo Student-Athletes --------------------------------------------------------- RICHARD MILBURN, individually and on behalf of all others similarly situated, the Plaintiff, vs. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, the Defendant, Case No. 1:19-cv-00684-JRS-MJD (S.D. Ind. Feb. 15, 2019), seeks redress for injuries sustained a result of Defendant's reckless disregard for the health and safety of generations of University of Toledo (UT) student-athletes. According to the complaint, nearly 100,000 student-athletes sign up to compete in college football each year, and it's no surprise why. Football is America's sport and Plaintiff and a Class of football players were raised to live and breathe the game. During football season, there are entire days of the week that millions of Americans dedicate to watching the game. On game days, hundreds of thousands of fans fill stadium seats and even more watch around the world. Before each game, these players -- often mere teenagers -- are riled up and told to do whatever it takes to win and, when playing, are motivated to do whatever it takes to keep going. But up until 2010, NCAA kept players and the public in the dark about an epidemic that was slowly killing college athletes. During the course of a college football season, athletes absorb more than 1,000 impacts greater than 10 Gs (gravitational force) and, worse yet, the majority of football-related hits to the head exceed 20 Gs, with some approaching 100 Gs. To put this in perspective, if you drove your car into a wall at 25 miles per hour and weren't wearing a seatbelt, the force of you hitting the windshield would be around 100 Gs. Thus, each season these 18, 19, 20, and 21-year-old student-athletes are subjected to repeated car accidents. Over time, the repetitive and violent impacts to players' heads led to repeated concussions that severely increased their risks of long-term brain injuries, including memory loss, dementia, depression, Chronic Traumatic Encephalopathy ("CTE"), Parkinson's disease, and other related symptoms. Meaning, long after they played their last game, they are left with a series of neurological events that could slowly strangle their brains. For decades, NCAA knew about the debilitating long-term dangers of concussions, concussion-related injuries, and sub-concussive injuries (referred to as "traumatic brain injuries" or "TBIs") that resulted from playing college football, but recklessly disregarded this information to protect the very profitable business of "amateur" college football. While in school, UT football players were under Defendant's care. Unfortunately, Defendant did not care about the off-field consequences that would haunt students for the rest of their lives. Despite knowing for decades of a vast body of scientific research describing the danger of traumatic brain injuries ("TBIs") like those Plaintiff experienced, Defendant failed to implement adequate procedures to protect Plaintiff and other UT football players from the long-term dangers associated with them. They did so knowingly and for profit. As a direct result of Defendant's acts and omissions, Plaintiff and countless former UT football players suffered brain and other neurocognitive injuries from playing NCAA football. As such, Plaintiff brings this Class Action Complaint in order to vindicate those players' rights and hold the NCAA accountable, the lawsuit says. NCAA is a non-profit organization which regulates athletes of 1,268 North American institutions and conferences.[BN] Counsel for Plaintiff and the Putative Class: Jeff Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Telephone: (713) 554 9099 Facsimile: (713) 554 9098 E-mail: efile@raiznerlaw.com - and - Jay Edelson, Esq. Benjamin H. Richman, Esq. Rafey S. Balabanian, Esq. EDELSON PC 350 North LaSalle Street, 14th Floor Chicago, IL 60654 Telephone: (312) 589 6370 Facsimile: (312) 589 6378 E-mail: rbalabanian@edelson.com jedelson@edelson.com brichman@edelson.com NCAA: Murray Sues over Safety of OSU Student-Athletes ----------------------------------------------------- VICTOR DUSTIN THOMAS VON HOPKINS MURRAY, individually and on behalf of all others similarly situated, the Plaintiff, vs. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, the Defendant, Case No. 1:19-cv-00731-SEB-TAB (S.D. Ind. Feb. 18, 2019), seeks redress for injuries sustained a result of Defendant's reckless disregard for the health and safety of University of OSU ("OSU") student-athletes. While in school, OSU football players were under Defendant's care. Unfortunately, Defendant did not care about the off-field consequences that would haunt students for the rest of their lives. Despite knowing for decades of a vast body of scientific research describing the danger of traumatic brain injuries ("TBIs") like those Plaintiff experienced, Defendant failed to implement adequate procedures to protect Plaintiff and other OSU football players from the long-term dangers associated with them. They did so knowingly and for profit. As a direct result of Defendant's acts and omissions, Plaintiff and countless former OSU football players suffered brain and other neurocognitive injuries from playing NCAA football. As such, Plaintiff brings this Class Action Complaint in order to vindicate those players' rights and hold the NCAA accountable, the lawsuit says. NCAA is a non-profit organization which regulates athletes of 1,268 North American institutions and conferences.[BN] Counsel for the Plaintiff and the Putative Class: Jeff Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Telephone: (713) 554 9099 Facsimile: (713) 554 9098 E-mail: efile@raiznerlaw.com - and - Jay Edelson, Esq. Benjamin H. Richman, Esq. Rafey S. Balabanian, Esq. EDELSON PC 350 North LaSalle Street, 14th Floor Chicago, IL 60654 Telephone: (312) 589 6370 Facsimile: (312) 589 6378 E-mail: rbalabanian@edelson.com jedelson@edelson.com brichman@edelson.com NCAA: Pinkney Sues over Safety of WSU Student-Athletes ------------------------------------------------------ ARRONN PINKNEY, individually and on behalf of all others similarly situated, the Plaintiff, vs. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, the Defendant, Case No. 1:19-cv-00683-JPH-TAB (S.D. Ind. Feb. 15, 2019), seeks redress for injuries sustained a result of Defendant's reckless disregard for the health and safety of Washington State University ("WSU") student-athletes. According to the complaint, nearly 100,000 student-athletes sign up to compete in college football each year, and it's no surprise why. Football is America's sport and the Plaintiff and a Class of football players were raised to live and breathe the game. During football season, there are entire days of the week that millions of Americans dedicate to watching the game. On game days, hundreds of thousands of fans fill stadium seats and even more watch around the world. Before each game, these players -- often mere teenagers -- are riled up and told to do whatever it takes to win and, when playing, are motivated to do whatever it takes to keep going. But up until 2010, NCAA kept players and the public in the dark about an epidemic that was slowly killing college athletes. During the course of a college football season, athletes absorb more than 1,000 impacts greater than 10 Gs (gravitational force) and, worse yet, the majority of football-related hits to the head exceed 20 Gs, with some approaching 100 Gs. To put this in perspective, if you drove your car into a wall at 25 miles per hour and weren't wearing a seatbelt, the force of you hitting the windshield would be around 100 Gs. Thus, each season these 18, 19, 20, and 21-year-old student-athletes are subjected to repeated car accidents. Over time, the repetitive and violent impacts to players' heads led to repeated concussions that severely increased their risks of long-term brain injuries, including memory loss, dementia, depression, Chronic Traumatic Encephalopathy ("CTE"), Parkinson's disease, and other related symptoms. Meaning, long after they played their last game, they are left with a series of neurological events that could slowly strangle their brains. For decades, NCAA knew about the debilitating long-term dangers of concussions, concussion-related injuries, and sub-concussive injuries (referred to as "traumatic brain injuries" or "TBIs") that resulted from playing college football, but recklessly disregarded this information to protect the very profitable business of "amateur" college football. While in school, WSU football players were under Defendant's care. Unfortunately, Defendant did not care about the off-field consequences that would haunt students for the rest of their lives. Despite knowing for decades of a vast body of scientific research describing the danger of traumatic brain injuries ("TBIs") like those Plaintiff experienced, Defendant failed to implement adequate procedures to protect Plaintiff and other WSU football players from the long-term dangers associated with them. They did so knowingly and for profit. As a direct result of Defendant's acts and omissions, Plaintiff and countless former WSU ootball players suffered brain and other neurocognitive injuries from playing NCAA football. As such, Plaintiff brings this Class Action Complaint in order to vindicate those players' rights and hold the NCAA accountable, the lawsuit says. NCAA is a non-profit organization which regulates athletes of 1,268 North American institutions and conferences.[BN] Counsel for Plaintiff and the Putative Class: Jeff Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Telephone: (713) 554 9099 Facsimile: (713) 554 9098 E-mail: efile@raiznerlaw.com - and - Jay Edelson, Esq. Benjamin H. Richman, Esq. Rafey S. Balabanian, Esq. EDELSON PC 350 North LaSalle Street, 14th Floor Chicago, IL 60654 Telephone: (312) 589 6370 Facsimile: (312) 589 6378 E-mail: rbalabanian@edelson.com jedelson@edelson.com brichman@edelson.com NCAA: Stewart Sues over Safety of Cincinnati Student-Athletes ------------------------------------------------------------- ANDREW STEWART, individually and on behalf of all others similarly situated, the Plaintiff, vs. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, the Defendant, Case No. 1:19-cv-00727-JRS-MPB (S.D. Ind. Feb. 18, 2019), seeks redress for injuries sustained a result of Defendant's reckless disregard for the health and safety of University of Cincinnati ("Cincinnati") student-athletes. While in school, Cincinnati football players were under Defendant's care. Unfortunately, Defendant did not care about the off-field consequences that would haunt students for the rest of their lives. Despite knowing for decades of a vast body of scientific research describing the danger of traumatic brain injuries ("TBIs") like those Plaintiff experienced, Defendant failed to implement adequate procedures to protect Plaintiff and other Cincinnati football players from the long-term dangers associated with them. They did so knowingly and for profit. As a direct result of Defendant's acts and omissions, Plaintiff and countless former Cincinnati football players suffered brain and other neurocognitive injuries from playing NCAA football. As such, Plaintiff brings this Class Action Complaint in order to vindicate those players' rights and hold the NCAA accountable, the lawsuit says. NCAA is a non-profit organization which regulates athletes of 1,268 North American institutions and conferences.[BN] Counsel for the Plaintiff and the Putative Class: Jeff Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Telephone: (713) 554 9099 Facsimile: (713) 554 9098 E-mail: efile@raiznerlaw.com - and - Jay Edelson, Esq. Benjamin H. Richman, Esq. Rafey S. Balabanian, Esq. EDELSON PC 350 North LaSalle Street, 14th Floor Chicago, IL 60654 Telephone: (312) 589 6370 Facsimile: (312) 589 6378 E-mail: rbalabanian@edelson.com jedelson@edelson.com brichman@edelson.com NEXTGEAR CAPITAL: Class Action Improperly Decertified, Court Says ----------------------------------------------------------------- Perry Cooper, writing for Bloomberg Law, reports that a federal district court improperly decertified the class action filed by used car dealerships alleging their lender charged them too much in interest fees, the Seventh Circuit held Feb. 13. A federal district court improperly decertified the class action filed by used car dealerships alleging their lender charged them too much in interest fees, the Seventh Circuit held Feb. 13. The court's original certification decision was a "model of clarity and thoroughness" but the decertification decision was "terse" and lacked the required detail, Judge Ilana D. Rovner wrote for the U.S. Court of Appeals for the Seventh Circuit. The dealerships sued NextGear Capital Inc. [GN] NORTHROP: Allen Sues for Fraud and Negligent Misrepresentation -------------------------------------------------------------- Paxton Allen, David Dunn, Scott Meredith, Ramon Baney, Nicole Henaire, individually and as representatives of all those similarly situated, Plaintiffs, v. Northrop Grumman, AECOM, General Dynamics, and Raytheon Company, Defendants, Case No. 3:19-cv-00491-B (N.D. Tex., February 26, 2019) is a suit arising under Federal Law and is a claim for civil damages based on violations of 26 U.S.C. Section 6103 and common law fraud. The Defendants are defense sub-contractors for the United States of America employing a significant number of individuals to work at the Joint Defense Facility Pine Gap ("JDFPG") located in Alice Springs, Australia. Plaintiffs received job offers to work at the JDFPG site and immediately upon acceptance underwent a rigorous "on-boarding" process that took several months. Either after Plaintiffs' arrival to the JDFPG site or on the eve of their departure, Plaintiffs received from Defendants a "Closing Agreement" that purported to waive their right to certain tax benefits from working overseas pursuant to an incorrect understanding of the 1966 JDFPG Defense Treaty. At no time during Plaintiffs' on-boarding process and, for some, at no time prior to their arrival at JDFPG, were Plaintiffs advised that a "Closing Agreement" might be necessary; much less that it would be mandatory. This "Closing Agreement" requirement was never reflected in any of the paperwork that had been involved in the entire months-long onboarding process. The Defendants have committed fraud and negligent misrepresentation to Plaintiffs by and through the doctrine of vicarious liability in regard to obtaining each signature on the "Closing Agreement", "Consent to Disclose", and "Declaration" forms, says the complaint. Plaintiffs are individuals who are United States citizens and taxpayers. Northrop Grumman, is a Virginia corporation with substantial contacts in this judicial district.[BN] The Plaintiffs are represented by: Kathryn Magan, Esq. CASTRO & CO., LLC 13155 Noel Road, Suite 900 Dallas, TX 75240 Phone: (469) 550-0036 Fax: (866) 700-7595 Email: K.Magan@CastroAndCo.com ONE FIFTY: N.Y. App. Div. Affirms Summary Judgment Denial in Maor ----------------------------------------------------------------- The Appellate Division of the Supreme Court of New York, First Department, issued an Order affirming the District Court's judgment denying Defendants' Motion for Summary Judgment in the case captioned MARSHALL MAOR, ET AL., Plaintiffs-Respondents, v. ONE FIFTY FIFTY SEVEN CORP. DOING BUSINESS AS RUSSIAN TEA ROOM, ET AL., Defendants-Appellants. 158840/14, 8392, 8391. (N.Y. App. Div.). The Defendants appeal from the District Court’s denial of their Motion for Summary Judgment. Maor and Garcia worked as catering staff for specific events at the Russian Tea Room under the direct supervision of Russian Tea Room managers. Although they were assigned to work the events by Ambitious, a third-party staffing agency, triable issues of fact exist as to the degree of control that One Fifty Fifty Seven and its principal, Gerald Lieblich, exercised over the results produced or the means used to achieve the results. Maor's motion for class certification was properly granted, but only to the extent that the class is limited to the period during which he and additional plaintiff Garcia worked at catered events at the Russian Tea Room staffed by Ambitious from 2008 through 2010. As to such a class, plaintiffs meet the requirements of CPLR 901(a) and demonstrate that a class action is more desirable and feasible than requiring individual members to prosecute separate actions. The record shows that Maor is familiar with the action and has no conflict of interest with other class members, who may opt out. Accordingly, the class is narrowed to include members whose claims are governed by the standard applicable before that date. Maor's motion, to the extent that it sought to amend the complaint to add Garcia as a plaintiff, was properly granted. Defendants cannot demonstrate prejudice resulting directly from any delay in moving to add Garcia, who was identified as a putative plaintiff and deposed by defendants. A full-text copy of the Supreme Court’s February 14, 2019 Opinion is available at http://tinyurl.com/y48nkfutfrom Leagle.com. Jackson Lewis, P.C., New York (John J. Porta -- John.Porta@jacksonlewis.com -- of counsel), for appellants. Virginia & Ambinder, LLP, New York (LaDonna Lusher, 40 Broad Street, 7th Floor, New York, NY 1004, of counsel), for respondents. OSBORN CORRECTIONAL: Toliver et al Seek to Certify Class & Subclass ------------------------------------------------------------------- In the class action lawsuit SEAN TOLIVER, et al., the Plaintiffs, v. SCOTT SEMPLE, et al., the Defendants, Case 3:16-cv-01899-SRU (D. Conn.), the Plaintiffs move the Court for an order: 1. certifying Contaminated Water Class: "all current and former inmates of Osborn who, from November 19, 2013 through the present, have had to drink and shower in tap water from one or more of the onsite wells at Osborn, whether or not such current and former inmates were housed in the Q Buildings"; 2. certifying Q Buildings Subclass: "all current and former inmates of Osborn who were housed in the Q Buildings from November 19, 2013 through the closing of the Q Buildings in or around December 2016, who may have been exposed to PCBs and friable asbestos"; and 3. appointing David Friedman, Lorey Rives Leddy, and the law firm of Murtha Cullina LLP, as class counsel. The Osborn Correctional Institute is a prison in Somers, Connecticut. The Plaintiffs in the lawsuit are Sean Toliver, James Babulsky, Jeremy Louis Barney, William Boo, Kenneth Carter, Luis Claudio, Anthony R. Johnson, Roger Johnson, Randal Licari, John F. Moore, Timothy Monroe, Jose Pesante, Jose Rivera, Marcos Rivera, Harold Rogers, Osbert Teekasingh, Anthony C. Wade, Sr., Zion T. Webb and Tyshun Willliams, who are represented by: Lorey Rives Leddy, Esq. David P. Friedman, Esq. Lorey Rives Leddy, Esq. MURTHA CULLINA LLP 177 Broad Street, 16th Floor Stamford, CT 06901 Telephone: (203) 653-5400 Facsimile: (203) 653-5444 E-mail: dfriedman@murthalaw.com lleddy@murthalaw.com PARED INC: Feldman Files Suit Under TCPA Over Spam Ads ------------------------------------------------------ David Feldman, individually and on behalf of all others similarly situated v. Pared Inc., and Does 1-10, Case No. 3:19-cv-01059 (N.D. Calif., February 26, 2019), seeks damages and injunctive relief pursuant to the Telephone Consumer Protection Act. The Plaintiff alleges that the Defendant began to use the Plaintiff's cellular telephone for the purpose of sending Plaintiff spam advertisements and promotional offers, via text messages, including a text message sent to and received by Plaintiff on or about November of 2018, from Defendant's phone number. The Plaintiff is a citizen and resident of the State of Hawaii. The Defendant provides hospitality and culinary staffing to restaurants. The Defendant conducted business in the State of California and in the County of San Francisco, and within this judicial district. [BN] The Plaintiff is represented by: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St., Suite 780 Woodland Hills, CA 91367 Tel: (323) 306-4234 Fax: (866) 633-0228 E-mail: tfriedman@toddflaw.com abacon@toddflaw.com PF STOCKTON: Blumenthal Nordrehaug Files Class Action ----------------------------------------------------- The San Francisco Employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP, filed a class action lawsuit against PF Stockton Fitness LLC, alleging that the company failed to lawfully provide meal and rest periods and pay their California employees for all overtime worked. The class action lawsuit against PF Stockton Fitness LLC, is currently pending in the San Joaquin County Superior Court, Case No. STK-CV-UOE-2019-1325. The lawsuit alleges the company does not have a policy or practice which provides legally compliant thirty minute uninterrupted meal breaks and paid rest breaks to their California Employees. The lawsuit also alleges that the failure of PF Stockton Fitness LLC,, to provide the legally required meal and rest period is evidenced by the company's records. The complaint further alleges, DEFENDANT did not have in place an immutable timekeeping system to accurately record and pay PLAINTIFF and other CALIFORNIA CLASS Members for the actual time these employees worked each day, including overtime hours. As a result DEFENDANT was able to and did in fact systematically, unlawfully, and unilaterally alter the time recorded in DEFENDANT's timekeeping system for PLAINTIFF and the members of the CALIFORNIA CLASS in order to avoid paying these employees the applicable overtime compensation for overtime worked and to avoid paying these employees for missed meal breaks. For more information about the class action lawsuit against PF Stockton Fitness LLC, call (800) 568-8020 to speak to Attorney Nicholas De Blouw. Blumenthal Nordrehaug Bhowmik De Blouw LLP, is a labor law firm with law offices located in San Diego County, Riverside County, Los Angeles County, Sacramento County, and San Francisco County. The firm has a statewide practice of representing employees on a contingency basis for violations involving unpaid wages, overtime pay, discrimination, harassment, wrongful termination and other types of illegal workplace conduct. [GN] PHILIP MORRIS: Letourneau Suit in Canada Still Ongoing ------------------------------------------------------ Philip Morris International Inc. 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's subsidiary in Canada continues to defend a class action suit entitled, Cecilia Letourneau v. Imperial Tobacco Ltd., Rothmans, Benson & Hedges Inc. and JTI Macdonald Corp. In a class action pending in Canada, Cecilia Letourneau v. Imperial Tobacco Ltd., Rothmans, Benson & Hedges Inc. and JTI Macdonald Corp., Quebec Superior Court, Canada, filed in September 1998, the company's subsidiary and other Canadian manufacturers (Imperial Tobacco Canada Ltd. and JTI-MacDonald Corp.) are defendants. The plaintiff, an individual smoker, sought compensatory and punitive damages for each member of the class who is deemed addicted to smoking. The class was certified in 2005. Trial began in March 2012 and concluded in December 2014. The trial court issued its judgment on May 27, 2015. The trial court found that the company's subsidiary and two other Canadian manufacturers liable and awarded a total of CAD 131 million (approximately $100 million) in punitive damages, allocating CAD 46 million (approximately $35 million) to the company's subsidiary. The trial court found that defendants violated the Civil Code of Quebec, the Quebec Charter of Human Rights and Freedoms, and the Quebec Consumer Protection Act by failing to warn adequately of the dangers of smoking. The trial court also found that defendants conspired to prevent consumers from learning the dangers of smoking. The trial court further held that these civil faults were a cause of the class members' addiction. The trial court rejected other grounds of fault advanced by the class, holding that: (i) the evidence was insufficient to show that defendants marketed to youth, (ii) defendants' advertising did not convey false information about the characteristics of cigarettes, and (iii) defendants did not commit a fault by using the descriptors light or mild for cigarettes with a lower tar delivery. The trial court estimated the size of the addiction class at 918,000 members but declined to award compensatory damages to the addiction class because the evidence did not establish the claims with sufficient accuracy. The trial court ordered defendants to pay the full punitive damage award into a trust within 60 days and found that a claims process to allocate the awarded damages to individual class members would be too expensive and difficult to administer. The trial court ordered a briefing on the proposed process for the distribution of sums remaining from the punitive damage award after payment of attorneys' fees and legal costs. In June 2015, the company's subsidiary commenced the appellate process by filing its inscription of appeal of the trial court's judgment with the Court of Appeal of Quebec. The company's subsidiary also filed a motion to cancel the trial court's order for payment into a trust within 60 days notwithstanding appeal. In July 2015, the Court of Appeal granted the motion to cancel and overturned the trial court's ruling that the company's subsidiary make the payment into a trust within 60 days. In August 2015, plaintiffs filed a motion with the Court of Appeal seeking security in both the Létourneau case and the Blais case described below. In October 2015, the Court of Appeal granted the motion and ordered the company's subsidiary to furnish security totaling CAD 226 million (approximately $172.5 million), in the form of cash into a court trust or letters of credit, in six equal consecutive quarterly installments of approximately CAD 37.6 million (approximately $28.7 million) beginning in December 2015 through March 2017. The Court of Appeal heard oral arguments on the merits appeal in November 2016. The company's subsidiary and PMI believe that the findings of liability and damages were incorrect and should ultimately be set aside on any one of many grounds, including the following: (i) holding that defendants violated Quebec law by failing to warn class members of the risks of smoking even after the court found that class members knew, or should have known, of the risks, (ii) finding that plaintiffs were not required to prove that defendants' alleged misconduct caused injury to each class member in direct contravention of binding precedent, (iii) creating a factual presumption, without any evidence from class members or otherwise, that defendants' alleged misconduct caused all smoking by all class members, (iv) holding that the addiction class members' claims for punitive damages were not time-barred even though the case was filed more than three years after a prominent addiction warning appeared on all packages, and (v) awarding punitive damages to punish defendants without proper consideration as to whether punitive damages were necessary to deter future misconduct. No further updates were provided in the Company's SEC report. Philip Morris International Inc., through its subsidiaries, manufactures and sells cigarettes, other nicotine-containing products, and smoke-free products and related electronic devices and accessories. It markets and sells its products in the European Union, Eastern Europe, the Middle East, Africa, South and Southeast Asia, East Asia, Australia, Latin America, and Canada. The company was incorporated in 1987 and is headquartered in New York, New York. PHILIP MORRIS: Smoker Health Defense Association's Suit Ongoing --------------------------------------------------------------- Philip Morris International Inc. 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 that plaintiff's en banc appeal to the Supreme Court of Justice in Brazil and defendants' constitutional appeal to the Federal Supreme Tribunal on the basis that plaintiff did not have standing to bring the lawsuit, are still pending. In the class action pending in Brazil, The Smoker Health Defense Association (ADESF) v. Souza Cruz, S.A. and Philip Morris Marketing, S.A., Nineteenth Lower Civil Court of the Central Courts of the Judiciary District of Sao Paulo, Brazil, filed July 25, 1995, the company's subsidiary and another member of the industry are defendants. The plaintiff, a consumer organization, is seeking damages for all addicted smokers and former smokers, and injunctive relief. In 2004, the trial court found defendants liable without hearing evidence and awarded "moral damages" of R$1,000 (approximately $273) per smoker per full year of smoking plus interest at the rate of 1% per month, as of the date of the ruling. The court did not award actual damages, which were to be assessed in the second phase of the case. The size of the class was not estimated. Defendants appealed to the Sao Paulo Court of Appeals, which annulled the ruling in November 2008, finding that the trial court had inappropriately ruled without hearing evidence and returned the case to the trial court for further proceedings. In May 2011, the trial court dismissed the claim. In February 2015, the appellate court unanimously dismissed plaintiff's appeal. In September 2015, plaintiff appealed to the Superior Court of Justice. In February 2017, the Chief Justice of the Superior Court of Justice denied plaintiff's appeal. In March 2017, plaintiff filed an en banc appeal to the Superior Court of Justice. In addition, the defendants filed a constitutional appeal to the Federal Supreme Tribunal on the basis that plaintiff did not have standing to bring the lawsuit. Both appeals are still pending. No further updates were provided in the Company's SEC report. Philip Morris International Inc., through its subsidiaries, manufactures and sells cigarettes, other nicotine-containing products, and smoke-free products and related electronic devices and accessories. It markets and sells its products in the European Union, Eastern Europe, the Middle East, Africa, South and Southeast Asia, East Asia, Australia, Latin America, and Canada. The company was incorporated in 1987 and is headquartered in New York, New York. PINNACLE ENTERTAINMENT: Lockett Seeks to Recover Minimum/OT Wages ----------------------------------------------------------------- KRYSTAL LOCKETT, AMBER L. CASWELL, JACQUELINE DAVIS, DAVID C. DEVUN JR., TABATHA K. DOZIER, SETH B. ISTRE, RACAL JOHNSON, CYNTHIA J. KOFRON, TONISHA S. LONZO, NATHAN J. MCDERMOTT, JEREMY MITCHELL, LAURA PEREZ, WAYNE SHEFFIELD JAMAICA S. YOUNG, individually, and on behalf of all others similarly situated v. PINNACLE ENTERTAINMENT, INC., AMERISTAR CASINO COUNCIL BLUFFS, LLC D/B/A AMERSITAR COUNCIL BLUFFS, AMERISTAR CASINO EAST CHICAGO, LLC D/B/A AMERISTAR EAST CHICAGO, CATCUS PETE'S, LLC D/B/A CACTUS PETE'S RESORT CASINO, LOUISIANA-I GAMING, A LOUISIANA PARNTERNSHIP IN COMMENDAM D/B/A BOOMTOWN NEW ORLEANS PNK (BATON ROUGE) PARTNERSHIP D/B/A L'AUBERGE BATON ROUGE, PNK (BOSSIER CITY), L.L.C. D/B/A BOOMTOWN BOSSIER CITY, PNK (LAKE CHARLES), L.L.C. D/B/A L'AUBERGE LAKE CHARLES, PNK (RIVER CITY), LLC D/B/A RIVER CITY, PNK VICKSBURG, LLC D/B/A AMERISTAR VICSBURG, WASHINGTON TROTTING ASSOCIATION, LLC D/B/A THE MEADOWS, Case No. 2:19-cv-00315 (D. Nev., February 21, 2019), seeks to recover alleged unpaid minimum and overtime wages pursuant to the Fair Labor Standards Act. Pinnacle Entertainment, Inc., is a corporation organized under the laws of the state of Delaware with its principal place of business located in Las Vegas, Nevada. Pinnacle owns and operates each of the subsidiary casino entities (the other Defendants). Ameristar Casino Council Bluffs, LLC, is a limited liability company organized under the laws of the state of Iowa. Ameristar Casino Council Bluffs, LLC, owns and operates Ameristar Council Bluffs, which is a casino located in Council Bluffs, Iowa. Ameristar Casino East Chicago, LLC, is a limited liability company organized under the laws of the state of Indiana. Ameristar Casino East Chicago, LLC, owns and operates Ameristar East Chicago, which is a casino located in East Chicago, Indiana. Cactus Pete's, LLC, is a limited liability company organized under the laws of and registered to do business in the state of Nevada. Cactus Pete's, LLC, owns and operates Cactus Pete's Resort Casino, which is a casino located in Jackpot, Nevada. Louisiana-I Gaming is a Louisiana Partnership in Commendam. Louisiana-I Gaming owns and operates Boomtown New Orleans, which is a casino located in Harvey, Louisiana. PNK (Baton Rouge) Partnership is a partnership organized under the laws of the state of Louisiana. PNK (Baton Rouge) Partnership owns and operates L'Auberge Baton Rouge, which is a casino located in Baton Rouge, Louisiana. PNK (Bossier City), L.L.C., is a limited liability company organized under the laws of the state of Louisiana. PNK (Bossier City), L.L.C., owns and operates Boomtown Bossier City, which is a casino located in Bossier City, Louisiana. PNK (Lake Charles), L.L.C., is a limited liability company organized under the laws of the State of Louisiana. PNK (Lake Charles), L.L.C., owns and operates L'Auberge Lake Charles, which is a casino located in Lake Charles, Louisiana. PNK (River City), LLC is a limited liability company organized under the laws of the State of Missouri. PNK (River City), LLC owns and operates River City, which is a casino located in Lemay, Missouri (in South St. Louis County, Missouri). PNK Vicksburg, LLC is a limited liability company organized under the laws of the State of Mississippi. PNK Vicksburg, LLC owns and operates Ameristar Casino Vicksburg, which is a casino located in Vicksburg, Mississippi. Washington Trotting Association, LLC is a limited liability company organized under the laws of the State of Delaware. Washington Trotting Association, LLC owns and operates The Meadows, which is a racetrack and casino located in Washington, Pennsylvania.[BN] The Plaintiffs are represented by: Jenny L. Foley, Esq. Marta D. Kurshumova, Esq. HKM EMPLOYMENT ATTORNEYS LLP 1785 East Sahara, Suite 300 Las Vegas, NV 89104 Telephone: (702) 805-8340 Facsimile: (702) 625-3893 E-mail: jfoley@hkm.com mkurshumova@hkm.com - and - George A. Hanson, Esq. Alexander T. Ricke, Esq. STUEVE SIEGEL HANSON LLP 460 Nichols Road, Suite 200 Kansas City, MO 64112 Telephone: (816) 714-7100 Facsimile: (816) 714-7101 E-mail: hanson@stuevesiegel.com ricke@stuevesiegel.com - and - Ryan L. McClelland, Esq. Michael J. Rahmberg, Esq. McCLELLAND LAW FIRM, P.C. The Flagship Building 200 Westwoods Drive Liberty, MO 64068-1170 Telephone: (816) 781-0002 Facsimile: (816) 781-1984 E-mail: ryan@mcclellandlawfirm.com mrahmberg@mcclellandlawfirm.com - and - Matthew E. Osman, Esq. Kathryn S. Rickley, Esq. OSMAN & SMAY LLP 8500 W. 110th Street, Suite 330 Overland Park, KS 66210 Telephone: (913) 667-9243 Facsimile: (866) 470-9243 E-mail: mosman@workerwagerights.com krickley@workerwagerights.com POPSUGAR: Must Face Fashion Blogger's Class Action -------------------------------------------------- Ashley Cullins, writing for Hollywood Reporter, reports that media company PopSugar can't evade a class action lawsuit from a fashion blogger who claims the site stole images from thousands of influencers and cashed in on third-party links. Nitra Batra, who goes by the surname Mann professionally, in June sued PopSugar on behalf of herself and others like her. She claims the site copied influencers' Instagram images, removed links to "shoppable" products that allowed them to monetize their following and then reposted the same images with new links that allowed PopSugar to profit when users clicked through and purchased items. (Brittani Friedman, Zoha Memari, Cathy O'Brien and Laura Adney filed related complaints last summer.) U.S. District Judge Haywood Gilliam Jr. on Feb. 7 denied PopSugar's motion to dismiss the complaint in its entirety, finding an Instagram caption plausibly constitutes copyright management information under the law and it's reasonable to infer PopSugar removed the info to conceal the alleged infringement. Ms. Batra's complaint also includes a Lanham Act claim alleging that PopSugar's use of class members' names falsely implies they are affiliated with the company's goods or services and is likely to confuse consumers. The website argued that the only "goods or services" are the products purchased after clicking through links on its site, but Gilliam isn't buying it. "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," writes Gilliam. "Plaintiff has alleged a likelihood of consumer confusion regarding Defendant's service of providing these 'shoppable' images. . . . 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." PopSugar also argued that Ms. Batra's claims for right of publicity, contract interference and unfair competition are preempted by the Copyright Act. Again, Gilliam sides with Batra. "[B]ecause 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," writes Judge Gilliam. Further, the court finds the alleged removal of monetized links from Ms. Batra's instagram is sufficient to maintain a claim for contract interference and unfair competition. Judge Gilliam also found Ms. Batra has plausibly alleged facts to support her copyright infringement claims, although the court notes that she will have to establish copyright registration dates in order to survive summary judgment and to serve as a class representative. [GN] PREFERRED HOME: Hyppolite Seeks Minimum & Overtime Pay ------------------------------------------------------ MARIE E. HYPPOLITE, Individually and On Behalf of all Others Similarly Situated, the Plaintiffs, vs. PREFERRED HOME CARE OF NEW YORK, LLC, the Defendant, Case No. 1:19-cv-00927 (E.D.N.Y., Feb. 15, 2019), seeks to recover all unpaid minimum wages and overtime compensation, liquidated damages and costs, including reasonable attorney's fees under Fair Labor Standards Act and New York's Wage and Hour Laws. The case asserts a collective action pursuant to the Fair Labor Standards Act in connection with Defendant's violation of its statutory obligation to pay minimum wage and overtime compensation, to non-exempt employees, for work in excess of 40 hours per week, at a rate of 1.5 times his/her regular rate of pay, pursuant to 29 U.S.C. section 207(a), the lawsuit says. Preferred Home Care of New York is a PCA/HHA training and home health agency, matching individuals in need of care with compassionate caregivers.[BN] Attorneys for the Plaintiff: Steven Bennett Blau, Esq. LAU, LEONARD LAW GROUP, LLC Shelly A. Leonard 23 Green Street, Suite 303 Huntington, NY 11743 Telephone: (631) 458-1010 E-mail: sblau@blauleonardlaw.com sleonard@blauleonardlaw.com PROGRESSIVE UNIVERSAL: Thompson Files Class Action in Wisconsin --------------------------------------------------------------- A class action lawsuit has been filed against Progressive Universal Insurance Co. The case is styled as Darcee Thompson, individually and on behalf of all others similarly situated, Plaintiff v. Progressive Universal Insurance Co., a Wisconsin corporation, Defendant, Case No. 3:19-cv-00150 (W.D. Wis., February 25, 2019). Progressive Universal Insurance Company was incorporated in 1992 and is based in Mayfield, Ohio. Progressive Universal Insurance Company operates as a subsidiary of Progressive Direct Holdings, Inc.[BN] The Plaintiff is represented by: Daniel Aaron Kotchen,Esq. Kotchen & Low 1745 Kalorama Road NW Suite 101 Washington, DC 20009 Tel: (202) 468-4014 Email: dkotchen@kotchen.com - and - Jeffrey Miles Ostrow,Esq. KopelowitzOstrow 200 SW 1st Avenue, Suite 1200 Ft. Lauderdale, FL 33301 Tel: (954) 525-4100x4200 Fax: (954) 525-4300 Email: ostrow@kolawyers.com PURPLE COMMUNICATIONS: Does Not Properly Pay Workers, Jucha Says ---------------------------------------------------------------- Lisa Jucha as an individual and on Behalf of all others similarly situated, Plaintiff, v. Purple Communications, Inc., a Delaware Corporation; CSDVRS, LLC, a Delaware Limited Liability Company; and DOES 1 to 100, Defendants, Case No. 19STCV06373 (Cal. Super. Ct., Los Angeles Cty., February 26, 2019) seeks recovery of penalties under Labor Code and Industrial Welfare Commission Wage Order 4, in addition to seeking declaratory relief. Plaintiff worked in excess of eight hours per workday and/or more than 40 hours per workweek but did not receive overtime compensation equal to one and one-half times her regular rate of pay for working overtime hours, notes the complaint. Specifically, Defendants paid Plaintiff non-discretionary bonuses based on her billable minutes, non-discretionary bonuses based on acquiring repeat customers, and other forms of non-discretionary pay that are not excludable from the regular rate of pay. Moreover, the Defendants failed to accurately calculate Plaintiff's regular rate of pay as a result of receiving Incentive Pay, as Plaintiff was only paid one-and-a-half times her base rate of pay for overtime hours, thereby causing Plaintiff to be underpaid all her required overtime wages, says the complaint. Plaintiff is a California resident and was employed by Defendants from approximately November 2011 until December 19, 2016. Defendants did (and continue to do) business by providing American Sign Language ("ASL") interpreting services for the deaf and hard-of-hearing.[BN] The Plaintiff is represented by: Paul K. Haines, Esq. Fletcher W. Schmidt, Esq. Andrew J. Rowbotham, Esq. HAINES LAW GROUP, APC 222 N. Sepulveda Blvd., Suite 1550 El Segundo, CA 90245 Phone: (424) 292-2350 Fax: (424) 292-2355 Email: phaines@haineslawgroup.com fschmidt@haineslawgroup.com arowbotham@haineslawgroup.com REGIONAL ONE: Aleman Labor Suit to Recover Unpaid Overtime ---------------------------------------------------------- Humberto Aleman Jr. and all others similarly situated, Plaintiff, v. Regional One, Inc., Hank Gibson, Defendants, Case No. 19-cv-20399 (S.D. Fla., January 30, 2019), requests double damages and reasonable attorney fees, jointly and severally, pursuant to the Fair Labor Standards Act for all overtime wages still owing along with court costs, interest and any other relief. Aleman worked for Defendants as a inventory and cost analyst in the cost accounting department. He claims to have worked over 40 hours a week and was not paid the extra half time rate for any hours worked over 40 hours in a week. [BN] The Plaintiff is represented by: J.H. Zidell, Esq. J.H. ZIDELL, P.A. 300 71st Street, Suite 605 Miami Beach, FL 33141 Tel: (305) 865-6766 Fax: (305) 865-7167 Email: zabogado@aol.com REIMER LAW: N.D. Ohio Strikes Class Claims in Glazer FDCA Suit -------------------------------------------------------------- In the case, LAWRENCE GLAZER, ET AL., Plaintiff, v. REIMER LAW CO., ET AL., Defendant, Case No. 1:09CV1262 (N.D. Ohio), Judge Christopher A. Boyko of the U.S. District Court for the Northern District of Ohio, Eastern Division, granted the Defendants' Motion to Strike and Dismiss Class Allegations and Claims Contained in Third Amended Complaint. In 2003, Charles Klie purchased residential property near Columbus, Ohio. Klie obtained a loan secured by a mortgage from Coldwell Banker for the property. In September 2003, Coldwell sold and assigned the Loan to Federal National Mortgage Corp. Coldwell continued to service the Loan until October 2007, when it transferred the servicing rights to JP Morgan Chase. At the same time, Coldwell assigned the servicing rights on the mortgage to JP Morgan. Chase assumed the day-to-day servicing of the Loan on behalf of JP Morgan. Klie maintained current payments on the Loan until his death in January 2008. His fiduciaries, the Plaintiff included, informed Chase that a probate proceeding in Franklin County, Ohio would handle all of Klie's debts, including the Loan. Chase did not file a creditor claim in probate court. Around this time, the Plaintiff came into possession of the property and the Loan. In May 2008, Chase, using a Twinsburg, Ohio law firm, Riemer, Arnovitz, Chernek & Jeffrey Co. ("RACJ"), began foreclosure proceedings against the Loan. During the foreclosure action, the Plaintiff alleged that Chase falsely represented it was the owner and holder of the Loan. He filed the action alleging violations of the Fair Debt Collection Practices Act ("FDCPA") and state law claims against Chase and other named Defendants, including RACJ and Cindy A. Smith. In addition, the Plaintiff alleged that the Defendants unlawfully entered and damaged the property while winterizing it. The Plaintiff also claimed that the Defendants placed new locks on the doors even though he put a note on the house saying it was not abandoned. On March 31, 2010, the Court dismissed the federal claims against Chase, RACJ, Smith and other Defendants. Because the Court dismissed all the federal claims, the Court refused to exercise jurisdiction over the state law claims. On appeal, the U.S. Court of Appeals for the Sixth Circuit affirmed, in part, and reversed, in part. The Sixth Circuit found that the Court properly dismissed the claims against Chase, but that it erred in dismissing the claims against RACJ because a law firm conducting a mortgage foreclosure is partaking in "debt collection" under the FDCPA. In addition to reinstating the federal claims against RACJ, the Sixth Circuit reinstated the state law claims as well. The Plaintiff did not appeal the Court's decision to dismiss Smith. During the pendency of the Plaintiff's appeal, the Plaintiff prosecuted his state law claims in state court. Those claims were adjudicated and are no longer before the Court. According to the Defendants, the Plaintiff cannot proceed with a class action because he seeks to represent the class not only as the Named Plaintiff but also as the class counsel. Case law provided by the Defendants clearly demonstrates that a pro se plaintiff cannot fairly represent a class under Federal Rule of Civil Procedure 23(a)(4). The Plaintiff has either been unwilling or unable to retain new counsel to litigate the action since the Court disqualified former counsel, the Plaintiff's wife, as the counsel in the action due, in part, to her being a witness in the case. According to them, the Named Plaintiff also lacks experience in litigating class actions of Fair Debt Collection Practices Act claims, such that even were he able to represent a class while serving as the Named Plaintiff, his lack of experience would disqualify him from consideration as class counsel. Furthermore, the Plaintiff has expressly indicated he will not seek to retain new counsel despite the Court giving him ample opportunity to do so. Plaintiff has requested the Court appoint class counsel. In addition, the Defendants contend the Plaintiff is an inadequate class representative because he has an inherent conflict due to his wife's prior representation in the case and because he seeks attorneys fees of over $600,000 and damages of over $1.5 million. Thus, his claims do not share a common interest with the putative class. Given his reluctance to provide discovery in the case and answer questions concerning his claims at deposition, the Defendants argue the Plaintiff's claims are antagonistic to the class. The Plaintiff opposes the Motion to Strike, arguing that the Court lacks the authority to strike class allegations. According to him, he did not seek to proceed pro se, rather, the Court prematurely disqualified his wife from representing him and the putative class. Having convinced the Court to disqualify his wife, the Plaintiff contends the Defendants should not benefit by their gamesmanship. The Plaintiff further contends the Court must apply Rule 23 and not Rule 12 in deciding whether a plaintiff may proceed as a class action. Plaintiff argues that class certification is not conditioned upon the adequacy of a class representative. That analysis occurs only after the Court has determined whether a class may be certified under Rule 23. inally, the Plaintiff asserts the Court should appoint class counsel if it finds a class may be certified. Judge Boyko finds that the central issue is the obvious conflict of interest presented when a named pro se Plaintiff also seeks to represent the putative class. He finds a Motion to Strike appropriate given that class discovery would not elicit further facts that would potentially preserve the class claims. Instead, were the Court to deny the Motion as procedurally improper, it would only result in the same foregone conclusion, denial of class certification, in yet another round of motion practice and would result in needless further delay of this already ancient case. Because the Plaintiff's status as the Named Plaintiff and the proposed class counsel militates against class certification whether in a motion to strike, motion to dismiss or class certification opposition, further delay is unnecessary. He also finds that while certainly not the Court's preferred method to address the issue, the case has languished through many fits and starts, involving unique issues of law and procedure that have delayed resolution. It is apparent at this stage that the Plaintiff cannot or will not cure the defect presented in his status as proposed class representative and class counsel. As Sixth Circuit caselaw is clear he cannot be both, the Judge will grant the Defendants' Motion and Strikes the class allegations in the Plaintiff's Third Amended Complaint. The Judge further declines to appoint the counsel to represent the putative class. First, because there is no constitutional right to appointed counsel in a civil case. Second, the Plaintiff's reluctance to seek new counsel weighs strongly in the Court's mind that he does not have the best interests of the class in mind. Finally, there is no proposed counsel other than Named Plaintiff and his already disqualified wife, for the court to consider. Therefore, for the foregoing reasons, Judge Boyko granted the Defendants' Motion to Strike the Class Allegations. The case will proceed on the Plaintiff's individual claims. The parties will confer and submit to the Court, no later than Feb. 28, 2019, a new proposed schedule to include a settlement conference and trial date to be held before the end of 2019. A full-text copy of the Court's Feb. 15, 2019 Order is available at https://is.gd/T6v9zb from Leagle.com. Larry R. Glazer, Individually and on behalf of all similarly situated individuals, Plaintiff, pro se. Reimer, Arnovitz, Chernek & Jeffrey Co. & Ronald Chernek, Esq., Defendants, represented by Darryl E. Gormley, Reimer Law, Lori E. Brown -- lbrown@gallaghersharp.com -- Gallagher Sharp & Timothy T. Brick -- tbrick@gallaghersharp.com -- Gallagher Sharp. Darryl E. Gormley, Esq., Defendant, pro se. Darryl Gormley, Esq., Defendant, represented by Lori E. Brown, Gallagher Sharp & Timothy T. Brick, Gallagher Sharp. ProVest LLC, Movant, represented by Sarah A. Okrzynski. Nova Title Agency, Inc., Movant, represented by John F. Burke, III. Federal National Mortgage Association, Interested Party, represented by Jennifer M. Monty, Ulmer & Berne & Daniel A. Friedlander -- dfriedlander@weltman.com -- Weltman, Weinberg & Reis. RELIANT WIRING: Campos Action Seeks to Recover Overtime Pay ----------------------------------------------------------- Stephen Campos and Nicholas Sumner, on behalf of themselves and on behalf of all others similarly situated, Plaintiffs, v. Cable Man, Inc. and Reliant Wiring Solutions, LLC, Defendants, Case No. 19-cv-00054, (M.D. La., January 30, 2019), seeks unpaid overtime pay, liquidated damages, reasonable attorneys' fees and costs for violation of the Fair Labor Standards Act. Defendants provide underground cable and fiber optic installation services where Cable Man is an authorized contractor of Cox Communications while Reliant is its subcontractor. Campos and Sumner were employed by Cable Man through Reliant as technicians. Reliant misclassified them as independent contractors instead of employees, thus, denying them overtime pay despite regularly working more than 40 hours per workweek. [BN] Plaintiffs are represented by: Robert R. Debes, Jr., Esq. SHELLIST LAZARZ SLOBIN LLP 11 Greenway Plaza, Suite 1515 Houston, TX 77046 Telephone: (713) 621-2277 Facsimile: (713) 621-0993 Email: bdebes@eeoc.net - and - J. Arthur Smith, III, Esq. SMITH LAW FIRM 830 North Street Baton Rouge, LA 70802 Telephone: (225) 224-0831 Facsimile: (225) 383-7773 Email: jasmith@jarthursmith.com RENT-A-CENTER INC: Court Dismisses Usury Claim in P. Blair's Suit ----------------------------------------------------------------- The United States District Court for the Northern District of California issued an order granting Defendants' Motion for Summary Judgment on Usury Claim in the case captioned PAULA BLAIR, ANDREA ROBINSON, and FALECHIA HARRIS, individually and on behalf of all others similarly situated, Plaintiffs, v. RENT-A-CENTER, INC., a Delaware corporation, RENT-A-CENTER WEST, INC., a Delaware corporation, and DOES 1-50, inclusive, Defendants. No. C 17-02335 WHA. (N.D. Cal.). In this class action involving rent-to-own transactions, the defendants move for summary judgment on the plaintiffs' usury claim. Defendants Rent-A-Center, Inc. and Rent-A-Center West, Inc. maintained rent-to-own stores throughout California. These stores rented and sold new and used household merchandise (e.g., appliances, electronics, and furniture) to consumers for periodic payments. The operative complaint sought relief for violations of (1) California's Karnette Rental-Purchase Act (2) California's Consumers Legal Remedies Act (3) usury, and (4) Section 17200 of the California Business and Professions Code. Summary judgment is proper where the pleadings, discovery, and affidavits show that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Material facts are those which may affect the outcome of the case. Here, the relevant facts are not in dispute. The California Constitution provides that any loan or forbearance of any money, goods, or things in action, if the money, goods, or things in action are for use primarily for personal, family, or household purposes, may accrue at a rate not exceeding 10 percent per annum. California's usury law therefore applies only to transactions which constitute a loan or forbearance. This order concludes that the rent-to-own transactions at issue in this litigation do not constitute a loan or forbearance and that California's usury laws are therefore inapplicable. A loan of money is a contract by which one delivers a sum of money to another, and the latter agrees to return at a future time a sum equivalent to that which he borrowed. Rent-to-own transactions do not fall within this definition. Under the parties' rental-purchase agreements, plaintiffs made rental payments in advance to lease household goods on a weekly or monthly basis. The Plaintiffs agree that this is a lease "in form" but argue that the transaction is nevertheless a loan in substance. To be sure, in determining whether a transaction is a usurious loan, one "must look to the substance of the transaction rather than to its form. According to the plaintiffs' characterization, if a consumer makes all rental payments delineated in a rental-purchase agreement and thereby gains ownership of an item, the consumer has in effect borrowed money to purchase the item and then repaid the purchase price with an additional sum. If the consumer chooses not to make all rental payments, plaintiffs argue, the consumer has effectively borrowed the item and paid a hefty price for the item's use during the rental period. Contrary to the plaintiffs' characterizations, the plaintiffs never incurred a debt or obligation to purchase the goods they rented. Rather, they paid in advance of each rental period with the choice to terminate the rental agreement at any time. While the plaintiffs indisputably paid RAC significantly more to rent these items than they would have paid to purchase outright from a traditional retailer, this does not transform the rental transaction into a loan. The Karnette Act itself the very premise on which the plaintiffs have anchored their case defines a rental-purchase agreement as an agreement between a lessor and a consumer pursuant to which the lessor rents or leases, for valuable consideration, personal property for use by a consumer for personal, family, or household purposes for an initial term not exceeding four months that may be renewed or otherwise extended, if under the terms of the agreement the consumer acquires an option or other legally enforceable right to become owner of the property. The Plaintiffs concede that RAC is not liable under California usury law for rental-purchase transactions that fully comply with the Karnette Act's pricing requirements. They instead argue that a transaction becomes subject to usury when it fails to adhere to the Act's price caps. This order disagrees. That a violation of the Karnette Act's price-caps may be remedied both through the Karnette Act's remedial provisions and through other remedies or penalties established under other laws does not mean that the non-compliance of a rental-purchase agreement transforms the nature of the transaction into a loan or forbearance subject to usury laws. In sum, because the parties' rental-purchase transactions do not constitute a loan or forbearance under California law, RAC's motion for summary judgment on the plaintiffs' usury claim is granted. Accordingly, RAC's motion for summary judgment is granted. A full-text copy of the District Court's February 11, 2019 Order is available at http://tinyurl.com/y4jahw3cfrom Leagle.com. Paula L. Blair, Andrea Robinson & Harris A. Falechia, Plaintiffs, represented by James T. Hannink -- Jim.Hannink@SDLaw.com -- Dostart Hannink and Coveney, Zachariah Paul Dostart -- ZDostart@SDLaw.com -- Dostart Hannink & Coveney LLP, Andrew Edward Kushner -- akushner@altshulerberzon.com -- Altshuler Berzon LLP, Eric Prince Brown -- ebrown@altshulerberzon.com -- Altshuler Berzon LLP & Michael Rubin -- mrubin@altshulerberzon.com -- Altshuler Berzon LLP. Rent-A-Center, Inc., a Delaware corporation & Rent-A-Center West, Inc., a Delaware corporation, Defendants, represented by Christina Guerola Sarchio -- christina.sarchio@dechert.com -- Dechert LLP, H. Joseph Escher, III -- h.joseph.escher@dechert.com -- Dechert LLP, Kirsten F. Gallacher -KGallacher@wilsonturnerkosmo.com – Kgallacher@wilsonturnerkosmo.com -- Wilson Turner Kosmo LLP, Lily Anna North -- lily.north@dechert.com -- Dechert, LLP, Robert Kenneth Dixon -- rdixon@wilsonturnerkosmo.com -- Wilson Turner Kosmo, Robert Francois Friedman -- rfriedman@littler.com -- Littler Mendelson, P.C., pro hac vice, Vickie E. Turner -- vturner@wilsonturnerkosmo.com -- Wilson Turner Kosmo LLP & Gregory G. Iskander -- giskander@littler.com -- Littler Mendelson, P.C. SAIGON CAFE: Cortez Labor Suit Seeks Unpaid Overtime Premium ------------------------------------------------------------ Juan Miguel Gonzaga Cortez, individually and on behalf of others similarly situated, Plaintiffs, v. Hang Lin, Qing Quan Zheng and Saigon Cafe 89 Inc., Defendants, Case No. 19-cv-00905, (S.D. N.Y., January 30, 2019), seeks unpaid overtime wages, liquidated damages, compensatory damages, punitive damages, costs and attorneys' fees and prejudgment and post-judgment interest associated with the bringing of this action, plus any additional relief pursuant to the Fair Labor Standards Act and New York Labor Laws. Defendants operate "Mido," a restaurant located at 612 Amsterdam Ave., New York, where Cortez worked as a cook. He claims to have regularly worked in excess of forty hours per week without overtime pay. [BN] Plaintiff is represented by: Darren P. B. Rumack, Esq. THE KLEIN LAW GROUP 39 Broadway Suite 1530 New York, NY 10004 Tel: (212) 344-9022 Fax: (212) 344-0301 SAKS INCORPORATED: N.Y. App. Div. Affirms Amendment Leave Denial ---------------------------------------------------------------- The Appellate Division of the Supreme Court of New York, First Department, issued an Order affirming the District Court's denial of Plaintiffs' Motion for Leave to Amend the Complaint in the case captioned SAMUEL T. COHEN, ETC., Plaintiff-Appellant, v. SAKS INCORPORATED, ET AL., Defendants-Respondents. THOMAS H. JENNINGS, ETC., Plaintiff-Appellant, v. SAKS INCORPORATED, Defendants-Respondents. ROBERT OLIVER, ETC., Plaintiff-Appellant, v. SAKS INCORPORATED, ET AL., Defendants-Respondents. JOSHUA TEITELBAUM, ETC., Plaintiff-Appellant, v. SAKS INCORPORATED, ET AL., Defendants-Respondents. JACK OLIVER, ETC., ET AL., Plaintiffs-Appellants, v. SAKS INCORPORATED, ET AL., Defendants-Respondents. SHARON GOLDING, ETC., Plaintiff-Appellant, v. SAKS INCORPORATED, ET AL., Defendants-Respondents. MICHELLE SABATTINI, ETC., Plaintiff, v. SAKS INCORPORATED, ET AL., Defendants. 8421N, 652724/13, 652725/13, 652758/13, 652793/13, 652854/13, 653036/13, 652817/13. (N.Y. App. Div.). The Plaintiffs appeal from the District Court's denial of their Motion for Leave to Amend the Complaint. The Plaintiffs, shareholders of defendant Saks Incorporated, allege that the board of directors of Saks breached its fiduciary duties in connection with the $2.9 billion acquisition of Saks by defendant Hudson's Bay Company (the merger) insofar as the sale price failed to account for the significant value of Saks's flagship store in Manhattan. The Plaintiffs seek leave to amend the complaint to add new allegations against the Saks defendants and an aiding and abetting breach of fiduciary duty claim against Saks's financial advisor during the merger, Goldman Sachs. To the extent plaintiffs allege that the Saks defendants breached the duty of loyalty by virtue of the accelerated vesting of equity and change of control benefits they received in connection with the merger, these allegations are palpably insufficient. The directors' interests were aligned with those of the shareholders to obtain the highest value for their stock, and the change of control benefits stemmed from their employment agreements, which were negotiated years before any merger was contemplated and therefore did not arise by virtue of the Merger. Although the releases in the parties' stipulation of settlement are sufficiently broad to cover the new allegations and claims, they do not pose an independent basis for denying the motion to amend, because, while class action settlements may generally be binding on the named plaintiffs even before judicial approval, the terms of the instant stipulation make clear that the releases do not become effective until after court approval, which has not yet occurred. While the plaintiffs' promise to support the stipulation and cooperate in seeking court approval is not an unenforceable statement of intention to do something in the future, it is nonetheless unenforceable. The Plaintiffs and their counsel owe fiduciary duties to absent class members and thus cannot be required to support a settlement that is contrary to the best interests of those class members. In light of this, the N.Y. App. Div. believes it need not reach the plaintiffs' arguments with respect to rescission, vacatur, or the necessity of a preliminary approval determination. A full-text copy of the N.Y. App. Div.'s February 14, 2019 Opinion is available at http://tinyurl.com/y6elej7gfrom Leagle.com. Brower Piven, New York (David A.P. Brower, 475 Park Avenue South33rd FloorNew York, NY10016, of counsel), for Samuel T. Cohen, appellant. Levi & Korsinsky, LLP, New York (Eduard Korsinsky -- ek@zlk.com -- of counsel), for Thomas H. Jennings, appellant. Brodsky & Smith, LLP, Mineola (Evan J. Smith -- esmith@brodsky-smith.com -- of counsel), for Robert Oliver, appellant. Bernstein Liebhard LLP, New York (Joseph R. Seidman, Jr. -- Seidman@bernlieb.com -- of counsel), for Joshua Teitelbaum, appellant. Safirstein Metcalf LLP, New York (Peter Safirstein, 350 5th Ave, New York, NY 10118, of counsel), for Jack Oliver and Wanda Oliver, appellants. Wolf Haldenstein Adler Freeman & Herz LLP, New York (Daniel Tepper -- tepper@whafh.com -- of counsel), for Sharon Golding, appellant. Wilkie Farr & Gallagher LLP, New York (Tariq Mundiya -- tmundiya@willkie.com -- of counsel), for Saks Incorporated, Hudson's Bay and Harry Acquisition Inc., respondents. SALOMON SMITH: Alston Attorneys Discuss New Class Action Theory --------------------------------------------------------------- Lauren Tapson Macon, Esq. -- lauren.macon@alston.com -- and Tod Sawicki, Esq. -- tod.sawicki@alston.com -- of Alston & Bird, in an article for JDSupra, report that the law firm's Securities Litigation Group explains how the novel theory from the plaintiffs' bar to bring a breach of fiduciary duty class action could foreshadow an increase in financial firms' litigation risk. -- The complaint's allegations -- Dicta from the Georgia Supreme Court -- Holes in the plaintiff's theory A class action was recently filed in the U.S. District Court for the Northern District of Georgia against a variable annuity company and its captive broker-dealer asserting a novel theory of classwide liability for purported breach of fiduciary duty because the broker-dealer recommended its parent's variable annuity investments for customers' tax-qualified retirement plans. The theory plays off the plaintiffs' bar's success in ERISA fee cases[1] by cobbling together the all-too-familiar saw about the unsuitability and expense of variable annuity products for tax-advantaged accounts and an expansive reading of dicta from a 2010 Supreme Court of Georgia decision about the nature and scope of a broker's fiduciary duty to its customers in nondiscretionary accounts. The plaintiff's lawyer in the case has indicated he may be filing similar actions against other firms. The complaint seeks the certification of the class of "all Georgia residents who purchased an individual variable deferred annuity contract or who received a certificate to a group variable deferred annuity contract issued by [the defendant], or who made an additional investment through such a contract, within the applicable statute of limitations that was used to fund a [tax-qualified retirement plan]." The complaint then alleges that the defendants "owed fiduciary duties" to the class members and breached those duties "by providing investment advice that was not in customers' best interest in an effort to steer class members' money into variable annuities that would pay higher fees to" the defendants. The broad fiduciary duty the complaint depends on comes from dicta in the last two sentences of the Supreme Court of Georgia's decision in Holmes v. Grubman, 286 Ga. 636 (2010). The Holmes opinion is the product of the Supreme Court of Georgia's answers to the Second Circuit's certified questions concerning the viability of "holder" claims for fraud, negligent misrepresentation, and breach of fiduciary duty under Georgia common law. The plaintiff in Holmes was a Salomon Smith Barney customer who relied on the broker's false statements about the value of the customer's substantial holdings of Worldcom Inc. stock, and the broker's failure to disclose its conflict of interest as Worldcom's investment banker, in deciding to hold, rather than sell, those shares. In the opinion's last two sentences, the Supreme Court of Georgia wrote: However, we further conclude that the fiduciary duties owed by a broker to a customer with a non-discretionary account are not restricted to the actual execution of transactions. The broker will generally have a heightened duty, even to the holder of a non-discretionary account, when recommending an investment which the holder has previously rejected or as to which the broker has a conflict of interest. In pursuing classwide treatment, the lawsuit assumes equivalence between the rigid and uniform fiduciary duty imposed on ERISA plan fiduciaries and the Holmes Court's recognition of the limited fiduciary duty owed by a broker to its customer under Georgia common law. But in doing so, the complaint's theory conveniently ignores the myriad individualized circumstances and considerations that inform and define a broker's relationship with each of its customers. And further, the complaint's theory improperly conflates the concepts of disclosure and suitability by implying that the defendants could not satisfy their duties to their customers by fulsome disclosure (which is not alleged to have been deficient), but rather only by recommending different, less expensive investment products. It is for these reasons, among others, that the theory is unlikely to gain traction as the basis for a class action against the variable annuity company and its captive broker-dealer. While this novel theory seems unlikely to take hold under the current state of the law, if nothing else, it foreshadows one variation of many new theories that may substantially increase the litigation risk financial services firms will face in the fast-approaching epoch of the SEC's best interest standard and numerous states' codifications of fiduciary standards for brokers. [1] Federal class actions brought under the Employment Retirement Income Security Act of 1974 (ERISA) by plan participants against ERISA plan fiduciaries for choosing relatively expensive investment options for the plan. [GN] SC ENVIRONMENTAL: Unger et al. Seek Unpaid Overtime Premium ----------------------------------------------------------- CHRISTOPHER UNGER, and DUSTIN LACH, individually and on behalf of similarly situated persons, th Plaintiffs, vs. SC ENVIRONMENTAL SERVICES, LLC, a Michigan limited liability company, and JOHN K. SEARS, the Defendants, Case No. 1:19-cv-00125 (W.D. Mich., Feb. 18, 2019), alleges that the Defendants paid their employees at their regular rate for hours worked in excess of 40 hours per week without a one and one-half regular rate overtime premium. The Defendants attempted to conceal their failure to pay overtime premium by a scheme in which Defendants falsely recorded employees' time in their payroll records at 40 hours per week, regardless of the number of hours actually worked. SC Environmental Services, LLC provides wrecking and demolition services.[BN] Attorneys for the Plaintiffs: Jeffrey S. Theuer, Esq. LOOMIS, EWERT, PARSLEY, DAVIS & GOTTING, P.C. 124 West Allegan, Suite 700 Lansing, MI 48933 Telephone: (517) 482-2400 E-mail: jstheuer@loomislaw.com SELIP & STYLIANOU: Court Denies Bid to Dismiss Tompkins FDCPA Suit ------------------------------------------------------------------ The United States District Court for the District of New Jersey issued an Opinion denying Defendant's Motion to Dismiss in the case captioned ROBERT TOMPKINS, on behalf of himself and all other similarly situated, Plaintiff(s), v. SELIP & STYLIANOU, LLP, RAB PERFORMANCE RECOVERIES, LLC, and JOHN DOES 1-24, Defendants. Civil Action No. 18-12524 (JLL). (D.N.J.). This matter comes before the Court by way of a Motion to Dismiss the Complaint filed by Defendant RAB Performance Recoveries, LLC (RAB) pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, or in the Alternative for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. This is a putative state-wide class action arising from a debt-collection letter that Plaintiff alleges was sent by Defendants RAB, a debt collection agency, and Selip & Stylianou (Selip), RAB's legal counsel, in violation of the federal Fair Debt Collection Practices Act, 15 U.S.C. Section 1692 et seq. (FDCPA). To withstand a motion to dismiss for failure to state a claim, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. To prevail on an FDCPA claim, a plaintiff must prove that (1) she is a consumer (2) the defendant is a debt collector (3) the defendant's challenged practice involves an attempt to collect a debt' as the FDCPA defines it, and (4) the defendant has violated a provision of the FDCPA in attempting to collect the debt. Here, RAB disputes only the fourth prong that its attempt to collect on the Superior Court judgment against Plaintiff violated the FDCPA. RAB does not dispute that a debt collector's failure to comply with the NJCFLA's licensing requirements may constitute a violation of the FDCPA. Rather, RAB argues that it was exempt from those requirements. The NJCFLA provides that no person shall engage in business as a consumer lender or sales finance company without first obtaining a license or licenses under this act. Plaintiff argues that RAB was subject to the licensing requirements as both a consumer lender as well as a sales finance company. Consumer Lender The NJCFLA defines the consumer loan business as follows: "Consumer loan business means the business of making loans of money, credit, goods or things in action, which are to be used primarily for personal, family or household purposes, in the amount or value of $50,000 or less and charging, contracting for, or receiving a greater rate of interest, discount or consideration therefor than the lender would be permitted by law to charge if he were not a licensee hereunder, except as authorized by this act and without first obtaining a license from the commissioner. Any person directly or indirectly engaging in the business of soliciting or taking applications for such loans of $50,000 or less, or in the business of negotiating or arranging or aiding the borrower or lender in procuring or making such loans of $50,000 or less, or in the business of buying, discounting or endorsing notes, or of furnishing, or procuring guarantee or security for compensation in amounts of $50,000 or less, shall be deemed to be engaging in the consumer loan business." RAB argues that, pursuant to the italicized text in the first part of the definition of consumer loan business, so long as a lender charges an interest rate below the usury law's 16% limit, the lender need not be licensed under the NJCFLA. RAB submits that it never charged the Plaintiff over 16% interest on the Juniper Bank obligation, so it is therefore exempt from the consumer lender licensing requirements. The Plaintiff argues that RAB's licensing violation arises instead from the bolded language in the second part of the definition, since RAB directly or indirectly engages in the business of buying notes. RAB's argument that it has not purchased debt since 2012 and that it therefore was not required to be licensed at the time of the May 30, 2018 letter is unavailing, since RAB would have had to acquire the appropriate license before purchasing the Plaintiffs debt in order to ensure that its purchase and subsequent collection effort conformed with the NJCFLA. The Court therefore finds that the Complaint states a plausible FDCPA claim based on RAB's failure to obtain a license pursuant to the consumer lender provision of the NJCFLA. The Complaint alleges that RAB is a consumer lender as defined at N.J.S.A. 17:11C-2 insofar as RAB is in the business of buying, discounting or endorsing notes, or of furnishing, or procuring guarantee or security for compensation in amounts of $50,000 or less. Plaintiff further alleges that RAB did not obtain the appropriate license issued by the New Jersey Department of Banking and Insurance and that therefore it was prohibited from attempting to collect on Plaintiff's obligation. Finally, the Complaint alleges that the letter would cause the least sophisticated consumer to believe that Defendants had the legal ability to attempt to collect the debt and that Defendants had acquired the appropriate licenses or had otherwise complied with New Jersey regulations. These allegations sufficiently state a claim pursuant to Section 1692e(10) of the FDCPA. Sales Finance Company Because the Court finds that the Plaintiff plausibly states a claim under the FDCPA based on his theory that RAB was subject to NJCFLA licensing requirements as a consumer lender, the Court need not wade into superfluous interpretation of state law to determine whether RAB was further subject to the NJCFLA as a sales finance company. Summary Judgment RAB urges that, to the extent the Court relies on certain factual statements contained in a declaration from its managing member submitted in support of its Motion, the Court should convert its Motion to Dismiss into a motion for summary judgment. Because the Court does not rely on those factual statements and finds that a motion for summary judgment is premature at this stage, the Court treats RAB's Motion as a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) only. A full-text copy of the District Court's February 11, 2019 Opinion is available at http://tinyurl.com/y33a4qd6from Leagle.com. ROBERT TOMPKINS, On behalf of himself and all others similarly situated, Plaintiff, represented by BEN A. KAPLAN. SELIP & STYLIANOU, LLP, Defendant, represented by ANDREW MICHAEL SCHWARTZ -- amschwartz@mdwcg.com -- MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN, PC, LAWRENCE J. BARTEL, III -- ljbartel@mdwcg.com -- MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN & RICHARD SAMUEL EICHENBAUM, SELIP & STYLIANOU, LLP. RAB PERFORMANCE RECOVERIES, LLC, Defendant, represented by DAVID EDELBERG, CULLEN and DYKMAN LLP. SHOEDAZZLE.COM: Website not Accessible to Blind, Dawson Says ------------------------------------------------------------ LESHAWN DAWSON, on behalf of himself and all others similarly situated, the Plaintiffs, v. SHOEDAZZLE.COM, INC., the Defendant, Case No. 1:19-cv-01433-AJN (S.D.N.Y., Feb. 14, 2019), alleges that Defendant failed to design, construct, maintain, and operate its website at style.shoedazzle.com to be fully accessible to and independently usable by the Plaintiff and other blind or visually-impaired people, a violation of the Plaintiff's rights under the Americans with Disabilities Act ("ADA"). According to the complaint, the Plaintiff is a visually-impaired and legally blind person who requires screen-reading software to read website content using his computer. The Plaintiff uses the terms "blind" or "visually-impaired" to refer to all people with visual impairments who meet the legal definition of blindness in that they have a visual acuity with correction of less than or equal to 20 x 200. Some blind people who meet this definition have limited vision. Others have no vision. Based on a 2010 U.S. Census Bureau report, approximately 8.1 million people in the United States are visually impaired, including 2.0 million who are blind, and according to the American Foundation for the Blind's 2015 report, approximately 400,000 visually impaired persons live in the State of New York. ShoeDazzle is an American online fashion subscription service based in El Segundo, California. Each month the company debuts a selection of shoes, handbags, jewelry and provides its members with a showroom curated to their indicated fashion preferences.[BN] Attorneys for the Plaintiff: Joseph H. Mizrahi, Esq. COHEN & MIZRAHI LLP 300 Cadman Plaza West, 12th Fl. Brooklyn, NY 11201 Telephone: (929) 575-4175 Facsimile: (929) 575-4195 E-mail: Joseph@cml.legal - and - Jeffrey M. Gottlieb, Esq. Dana L. Gottlieb, Esq. GOTTLIEB & ASSOCIATES 150 East 18th Street, Suite PHR New York, NY 10003-2461 Telephone: (212) 228-9795 E-mail: nyjg@aol.com danalgottlieb@aol.com SIDESHOW INC.: Website not Accessible to Blind, Dawson Says ----------------------------------------------------------- LESHAWN DAWSON, on behalf of himself and all others similarly situated, the Plaintiffs, v. SIDESHOW INC., the Defendant, Case No. 1:19-cv-01434-PGG-SDA (S.D.N.Y., Feb. 14, 2019), alleges that Defendant failed to design, construct, maintain, and operate its website at www.sideshowtoy.com to be fully accessible to and independently usable by the Plaintiff and other blind or visually-impaired people, a violation of the Plaintiff's rights under the Americans with Disabilities Act ("ADA"). According to the complaint, the Plaintiff is a visually-impaired and legally blind person who requires screen-reading software to read website content using his computer. The Plaintiff uses the terms "blind" or "visually-impaired" to refer to all people with visual impairments who meet the legal definition of blindness in that they have a visual acuity with correction of less than or equal to 20 x 200. Some blind people who meet this definition have limited vision. Others have no vision. Based on a 2010 U.S. Census Bureau report, approximately 8.1 million people in the United States are visually impaired, including 2.0 million who are blind, and according to the American Foundation for the Blind's 2015 report, approximately 400,000 visually impaired persons live in the State of New York. Sideshow Inc. develops, finances, and produces quality independent feature films and assists other filmmakers in reaching their goals.[BN] Attorneys for the Plaintiff: Joseph H. Mizrahi, Esq. COHEN & MIZRAHI LLP 300 Cadman Plaza West, 12th Fl. Brooklyn, NY 11201 Telephone: (929) 575-4175 Facsimile: (929) 575-4195 E-mail: Joseph@cml.legal - and - Jeffrey M. Gottlieb, Esq. Dana L. Gottlieb, Esq. GOTTLIEB & ASSOCIATES 150 East 18th Street, Suite PHR New York, NY 10003-2461 Telephone: (212) 228-9795 E-mail: nyjg@aol.com danalgottlieb@aol.com SILDAN CORPORATION: Olsen Files ADA Class Action in NY ------------------------------------------------------ Sildan Corporation is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled Thomas J. Olsen, individually and on behalf of all other persons similarly situated, Plaintiff v. Sildan Corporation doing business as: Illesteva, Defendant, Case No. 1:19-cv-01738 (S.D. N.Y., February 25, 2019). Sildan Corporation is in the Sunglasses & Eyewear business in New York, New York.[BN] The Plaintiff is represented by: Christopher Howard Lowe, Esq. Lipsky Lowe LLP 630 Third Avenue New York, NY 10017 Tel: (212) 392-4772 Fax: (212) 444-1030 Email: chris@lipskylowe.com SITEL OPERATING: Foster Suit Transferred to M.D. Tennessee ---------------------------------------------------------- A case, MARQUISE FOSTER, Individually and on behalf of all others similarly situated, the Plaintiff, vs. SITEL OPERATING CORPORATION, the Defendant, Case No. 3:18-cv-00414, was transferred from the U.S. District Court for the Southern District of Texas, to the U.S. District Court for the Middle District of Tennessee (Nashville) on Feb. 15, 2019. The Middle District of Tennessee Court Clerk assigned Case no. 3:19-cv-00148 to the proceeding. The case is assigned to the Hon. District Judge Eli J. Richardson. The case is a collective action to recover overtime wages, liquidated damages and other applicable penalties brought pursuant to the Fair Labor Standards Act. The Plaintiff and the Putative Class Members are those similarly situated persons who have worked for Sitel in call centers throughout the United States at any time from December 4, 2015. Sitel Operating Corporation, a business process outsourcing company, provides telephone call center services.[BN] Attorneys for the Plaintiff and the Putative Class Members: Clif Alexander, Esq. Austin W. Anderson, Esq. Lauren E. Braddy, Esq. Alan Clifton Gordon, Esq. Carter T. Hastings, Esq. George Schimmel, Esq. ANDERSON ALEXANDER , PLLC E-mail: clif@a2xlaw.com austin@a2xlaw.com lauren@a2xlaw.com cgordon@a2xlaw.com carter@a2xlaw.com geordie@a2xlaw.com - and - Paul M. Botros, Esq. C. Ryan Morgan, Esq. MORGAN & MORGAN, P.A. N. Orange Ave., 16th Floor P.O. Box 4979 Orlando, FL 32802-4979 Telephone: (407) 420-1414 Facsimile: (407) 867-4791 E-mail: rmorgan@forthepeople.com pbotros@forthepeople.com Attorneys for Sitel Operating Corporation: Robyn M. Funk, Esq. OGLETREE DEAKINS ET AL 8117 Preston Rd., Ste 500 Dallas, TX 75225 Telehone: (214) 525-2191 E-mail: robyn.funk@ogletreedeakins.com SMITH COUNTY, TX: Faces Class Action Over Voter Registration List ----------------------------------------------------------------- Erin Mansfield, writing for Tyler Morning Telegraph, reports that Smith County has been named in a class-action lawsuit that alleges illegal discrimination against U.S. citizens for sending them letters telling them to prove their citizenship. The class-action lawsuit calls the plaintiffs "U.S. citizens and registered voters of Texas who have been singled out for investigation and removal from the voter rolls by the Texas Secretary of State because they were born outside the United States." The lawsuit alleges that Texas officials are taking action against them because of their national origin, race or color, and asks for the court to find that they have been discriminated against and stop the action from happening. The Mexican American Legal Defense and Educational Fund, or MALDEF, filed the original lawsuit Feb. 2 along with other organizations involved in furthering voting rights for Latinos. The lawyers updated the lawsuit on Feb. 10 in U.S. District Court for the Southern District of Texas. The updated complaint names Smith County Elections Administrator Karen Nelson based on her office's decision to send out letters to as many as 239 people questioning their citizenship. The local plaintiff is a woman who received a letter and is named in the suit under the pseudonym "Jane Doe #1." "Plaintiff Doe #1 is injured by having been placed on the Secretary of State's list of 'Possible Non U.S. Citizens' and having her identifying information sent to the county in which she is registered to vote with instructions to use that information for investigation and possible removal from the voter rolls," the lawsuit says. She also was injured by the threat of removal from the voter role, by having been investigated for illegal registration and voting, and by having been stigmatized as a person who might have registered illegally, the lawsuit says. The lawsuit seeks to have the court declare that the affected class have been unconstitutionally targeted, and for the court to bar the state and local governments from acting on the list. This is the second lawsuit to name Ms. Nelson in her official role as Smith County elections administrator. Nelson was summoned in the first one, Move Texas Civic Fund v. David Whitley, Texas Secretary of State, filed in the same court in Galveston. The Smith County Commissioners Court held an executive session at the end of its regular meeting on Feb. 12 to discuss the Move Texas case and any other pending litigation against the county. Neither members of the court nor Ms. Nelson commented on the issue. [GN] SOGOU INC: Bishop Sues over Misleading Securities Statements ------------------------------------------------------------ The case, SKYLER BISHOP, Individually and on Behalf of All Others Similarly Situated, Plaintiff, vs. SOGOU INC., CHARLES (CHAOYANG) ZHANG, XIAOCHUAN WANG, YUXIN REN, JOANNA (YANFENG) LU, BIN GAO, JOSEPH CHEN, JANICE LEE, JAMES (XIUFENG) DENG, SOHU.COM INC., TENCENT HOLDINGS LIMITED, J.P. MORGAN SECURITIES LLC, CREDIT SUISSE SECURITIES (USA) L.L.C., GOLDMAN SACHS (ASIA) L.L.C., CHINA INTERNATIONAL CAPITAL CORPORATION HONG KONG SECURITIES LIMITED and DOES 1-25, inclusive, the Defendants, Case No. 19CIV00780 (Cal. Super. Ct., Feb. 6, 2019), is a securities class action on behalf of all persons who purchased Sogou American Depositary Shares ("ADSs") in or traceable to the Company's November 9, 2017 initial public offering (IPO). The complaint alleges that Defendants issued materially false and misleading statements to investors in connection with the IPO. Specifically, Defendants failed to disclose that: (i) Chinese regulators were analyzing Sogou for regulatory action because of an increase [in its] merchants' sales of counterfeit goods and because Sogou's existing software, advertising procedures, personnel, and audit procedures were insufficient to safeguard against compliance violations with governing Chinese regulators, and would need to be updated, enhanced and strengthened, [requiring] increased expenses; (ii) Sogou's cost of revenues were skyrocketing primarily because of significant increases in Traffic Acquisition Cost, which is a primary driver of Sogou's cost of revenues, as Sogou was dealing with significant price inflation from increased competition; (iii) Sogou planned to alter its strategy concerning smart hardware and push the Company's AI capabilities to increase product competitiveness; (iv) as a result of altering its smart hardware strategy, Sogou had already decided to phase out non-AI-enabled hardware products, such as legacy models of Teemo Smart Watch, and transition to use products integrating AI technologies, which Sogou hoped would reduce hardware revenues in the second half of 2018; and (v) as a result of the foregoing, Sogou's public statements were materially false and misleading at all relevant times. As the truth hit the market, Sogou's share price fell to just $5.50 by October 30, 2018, a decrease of over 57% less than a year from the IPO. According to the complaint, Sogou was the second largest internet search engine provider in China by mobile queries and the fourth largest internet company in China based on monthly active users as of September 2017. The Company generates revenues primarily from search and search-related advertising services, which represented more than 90% of the Company's total revenues in the year ended December 3l, 2016. In February 2006, Sohu undertook a reorganization of its search and search-related businesses, whereby most of these businesses were transferred to Sogou. Until October 2010, Sogou was indirectly wholly owned by Sohu. In October 2010, Sohu undertook another reorganization in preparation for Sogou's issuance of Pre-IPO Series A Preferred Shares in a financing transaction, and transferred other businesses and employees related to the search and search-related businesses to Sogou. Sogou then issued and sold Pre-IPO Series A Preferred Shares to a number of prominent Chinese technology companies, including Alibaba Investment Limited. In June 2012, Sohu repurchased the Pre-IPO Series A Preferred Shares held by Alibaba. In September 2013, Tencent, a Chinese multinational investment holding conglomerate whose subsidiaries specialize in various internet-related services and products both in China and globally, invested in Sogou. In addition, Tencent transferred its Soso search-related businesses and certain other assets to the Company in exchange for voting Pre-IPO Series B Preferred Shares and non-voting Pre-IPO Class B ordinary shares of Sogou. In August 2017, in preparation for the IPO, Sohu, Tencent, and Sogou entered into a voting agreement that provided for the redesignation of all of the Company's authorized an outstanding equity shares outstanding immediately prior to the completion of the IPO into either Class A ordinary shares or Class B ordinary shares effective upon completion of the IPO. The pre-IPO transactions put in place by the Defendants allowed them to shift pre-IPO assets into Sogou as the issuing entity, which then issued and sold ADSs to the public in the IPO. The Sogou Defendant's creation of a multi-share class voting structure, along with other favorable agreements with the Company, effectively allowed them to entrench their control over the Company's assets out of proportion to their exposure to the assets' economic risk. The Class A ordinary shares which where represented by the ADSs issued and sold to the public in the IPO, had one vote per share, while Class B ordinary shares, which were retained by Company insiders, had 10 votes per share. Leading up to the IPO, the Company's market share among Chinese internet search providers grew rapidly. Sogou claimed 15.2% market share in March 2017, 16.9% market share in June 2017, and 17.8% market share in September 2017. The Company sought to reassure investors that it was well capitalized and that its rapid growth rate was the product of sustainable business practices that had positioned the Company to capture "massive" sales opportunities in an expanding and underutilized Chinese market.[BN] Attorneys for Plaintiff: James I. Janette, Esq. Brian E. Cochran, Esq. Brian J. Robbins, Esq. Stephen Oddo, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 655 West Broadway, Suite 1900 San Diego, CA 92101-8498 Telephone: 619/231-1058 Facsimile: 619/231-7423 E-mail: jamesj@rgrdlaw.com bcochran@rgrdlaw.com SOGOU: Investors Sue Over Failure to Disclose Regulatory Issues --------------------------------------------------------------- SecuringIndustry.com reports that search engine firm Sogou is facing a class action lawsuit from investors who claim it failed to disclose serious regulatory issues when it listed in the US. The Chinese company listed on the New York Stock Exchange (NYSE) in November 2017 and according to the plaintiffs in the case it failed to reveal in its Initial Public Offering (IPO) prospectus that it was under investigation by the Chinese authorities "because of an increase in Sogou merchants' sales of counterfeit goods." The complaint alleges that "Chinese regulators were analysing Sogou for regulatory action because Sogou's existing software, advertising procedures, personnel, and audit procedures were insufficient to safeguard against compliance violations with governing Chinese regulations." It says Sogou failed to disclose that its systems would need to be "updated, enhanced, and strengthened," resulting in increased expenses. [GN] SPIN THE PLANET: Court Narrows Claims in Thompson Wage & Hour Suit ------------------------------------------------------------------ The United States District Court for the Western District of New York issued a Decision and Order granting in part Defendants' Motion to Dismiss in the case captioned SELENA THOMPSON, et al., PLAINTIFFS, v. SPIN THE PLANET, INC., et al., DEFENDANTS. No. 18-CV-6755 CJS. (W.D.N.Y.). The Plaintiffs filed a class action lawsuit alleging violations of New York and Massachusetts labor laws in New York State Supreme Court against the Defendants. The complaint seeks to recover damages in the form of unpaid wages and pay as well as injunctive relief and declaratory relief on behalf of the Named Plaintiffs and similarly situated delivery drivers who work or have worked for the Defendants in New York and Massachusetts. Before addressing either the motion to dismiss for failure to state a claim, or the motion to extend the time to file an amended complaint, the Court must first assure itself that it has jurisdiction over the parties. Personal jurisdiction is lacking for the Massachusetts claims To establish personal jurisdiction over a defendant, due process requires a plaintiff to allege (1) that a defendant has certain minimum contacts' with the relevant forum, and (2) that the exercise of jurisdiction is reasonable in the circumstances. A defendant's conduct and connection with the forum state should allow it to reasonably anticipate it could be haled into court there. In assessing whether a defendant has the necessary minimum contacts with the forum state, the Court must make a distinction between specific and general personal jurisdiction. Specific personal jurisdiction exists when a forum exercises personal jurisdiction over a defendant in a suit arising out of or related to the defendant's contacts with the forum; a court's general jurisdiction, on the other hand, is based on the defendant's general business contacts with the forum and permits a court to exercise its power in a case where the subject matter of the suit is unrelated to those contacts. The existence of either specific personal jurisdiction or general personal jurisdiction satisfies the minimum contacts requirement of the Due Process Clause. Section 302 provides that personal jurisdiction in the state is established when the defendant (1) transacts business in New York and (2) the asserted claim arises from that business activity. Defendants concede they are transacting business in New York, but the complaint does not allege that the Massachusetts claims arise from Defendants' New York business activity. Thus, they argue, the complaint does not establish any basis for specific jurisdiction over claims arising from activities in Massachusetts and ask the Court to dismiss those claims, or, in the alternative, transfer this case to Defendants' home state, Minnesota. Paragraphs 17, 18, 70, and 72 of the complaint allude to activities in Massachusetts. Paragraphs 78 through 80 discuss relevant Massachusetts law, and paragraph 90(b) describes the Massachusetts subclass for purposes of Federal Rule of Civil Procedure 23. The Second Cause of Action described in paragraphs 106-11 raises claims under Massachusetts law. The Court agrees that the complaint does not establish a basis for specific personal jurisdiction for the claims arising from activities in Massachusetts under Massachusetts law. The Court has specific personal jurisdiction over the New York activities allegedly in violation of New York law. The Court sees no reason at present to consider the alternative relief sought by the Defendants. The Defendants' motion to dismiss is granted in part, in that all claims based on actions arising from Defendants' activities in Massachusetts are dismissed without prejudice due to lack of personal jurisdiction. A full-text copy of the District Court's February 11, 2019 Decision and Order is available at http://tinyurl.com/y6z3pf2sfrom Leagle.com. Selena Thompson, Jon M. Stewart, Christine Ost & Jacob Manning, on behalf of themselves and all other employees similarly situated, Plaintiffs, represented by Annette M. Gifford, Thomas & Solomon LLP, J. Nelson Thomas, Thomas & Solomon LLP, Jessica Lynne Lukasiewicz, Thomas & Solomon LLP & Michael J. Lingle, Thomas & Solomon LLP. Spin the Planet, Inc., STP JJ Team 1, LLC, d/b/a Spin the Planet Enterprises, d/b/a Jimmy John's, WTE, Inc. & Daniel Vansteenburg, Defendants, represented by Joseph M. Sokolowski -- jsokolowski@fredlaw.com -- Fredrikson & Byron, P.A., pro hac vice & Mary L. Fee -- mfee@fredlaw.com -- Fredrikson & Byron, P.A. SUNRISE INFINITI: Martello Seeks Unpaid Wages & Overtime Pay ------------------------------------------------------------ MICHAEL MARTELLO, on behalf of himself and others similarly situated, the Plaintiff, vs. SUNRISE INFINITI, LLC and JOHN LASALA, the Plaintiff, Case No. 2:19-cv-00926 (E.D.N.Y., Feb. 15, 2019), seeks to recover unpaid wages, unpaid overtime, liquidated damages, reasonable attorneys' fees and costs, and all other appropriate legal and equitable relief, pursuant to the Fair Labor Standards Act and the New York State Labor Law. According to the complaint, the Plaintiff worked as a car sales representative for Defendants from June 2018 until August 2018. During his employment, the Plaintiff was paid a weekly salary, which salary did not satisfy minimum or overtime wages for all hours the Plaintiff worked. After the Plaintiff complained about the payment structure to Defendants, he was terminated.[BN] Attorneys for the Plaintiff, the FLSA Collective the Plaintiffs and the Class Members: Yale Pollack, Esq. LAW OFFICES OF YALE POLLACK, P.C. 66 Split Rock Road Syosset, NY 11791 Telephone: (516) 634-6340 Facsimile: (516) 634-6341 E-mail: ypollack@yalepollacklaw.com THAI TASTE: Barajas Seeks to Recover Minimum and Overtime Wages --------------------------------------------------------------- JAVIER ALEJANDRO LINARES BARAJAS, individually and on behalf of others similarly situated v. THAI TASTE INC. (D/B/A SPICE HUT), RAYYA CORPORATIONS, INC. (D/B/A SPICE HUT), NUMAN ALI, and TARIQ DOE, Case No. 1:19-cv-01643 (S.D.N.Y., February 21, 2019), seeks to recover alleged unpaid minimum and overtime wages pursuant to the Fair Labor Standards and the New York Labor Law. Thai Taste Inc. and Rayya Corporations, Inc., both doing business as Spice Hut, are domestic corporations organized and existing under the laws of the state of New York and maintains its principal place of business in New York City. The Individual Defendants serve or served as owners, managers, principals, or agents of the Defendant Corporations. The Defendants own, operate, or control an Indian restaurant, located at 2036 2nd Avenue, in New York City, under the name "Spice Hut." The Indian restaurant is located in the East Harlem section of Manhattan in New York City.[BN] The Plaintiff is represented by: Michael Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 4510 New York, NY 10165 Telephone: (212) 317-1200 Facsimile: (212) 317-1620 E-mail: Michael@Faillacelaw.com TRACFONE: Faces TCPA Class Action Over Ad Texts ----------------------------------------------- Law360 reports that a Florida man hit prepaid mobile phone operator Tracfone Wireless Inc. with a proposed class action on Feb. 13 accusing the company of violating the Telephone Consumer Protection Act by sending spam advertising. [GN] TRAVELPORT WORLDWIDE: Franchi Challenges Sale to Siris Capital -------------------------------------------------------------- Anthony Franchi, individually and on behalf of all others similarly situated v. Travelport Worldwide Limited, et al., Case No. 1:19-cv-01802 (S.D. N.Y., February 26, 2019), is brought against the Defendants for violation of the Securities Exchange Act of 1934. This action stems from a proposed transaction announced on December 10, 2018, pursuant to which Travelport Worldwide Limited will be acquired by affiliates of Siris Capital Group, LLC and Evergreen Coast Capital Corp. The Plaintiff alleges that the Proxy Statement that the Defendants filed with the SEC in connection with the Proposed Transaction, which scheduled a stockholder vote on the Proposed Transaction for March 15, 2019, omits material information with respect to the Proposed Transaction, rendering the Proxy Statement false and misleading. The Plaintiff is an owner of Travelport common stock. The Defendant Travelport is a Bermuda exempted company. Travelport's common stock is traded on the New York Stock Exchange, which is based in this District, under the ticker symbol "TVPT." Travelport is a travel commerce platform providing distribution, technology, payment, mobile, and other solutions for the global travel and tourism industry. The Individual Defendants are members of Travelport's board of directors. [BN] The Plaintiff is represented by: Timothy J. MacFall, Esq. RIGRODSKY & LONG, P.A. 825 East Gate Boulevard, Ste 300 Garden City, NY 11530 Tel: (516) 683-3516 E-mail: tjm@rl-legal.com TRIBECA AUTOMOTIVE: J. Roberts' Suit Remanded to NJ State Court --------------------------------------------------------------- The United States District Court for the District of New Jersey issued an Opinion and Order granting Plaintiffs' Motion to Remand in the case captioned PEDRO ROBERTS, on behalf of himself and all other similarly situated persons, Plaintiff, v. TRIBECA AUTOMOTIVE, INC., et al., Defendants. Civil Action No. 18-8330. (D.N.J.). The Plaintiff seeks to recover wages for a class of employees that were allegedly misclassified as independent contractors, rather than employees. CAFA provides federal courts with diversity jurisdiction over class actions when (1) the amount in controversy exceeds $5 million (2) there are minimally diverse parties and (3) the class consists of 100 or more members. To determine whether the CAFA jurisdictional requirements are met, a court may evaluate the allegations in the complaint and a defendant's notice of removal. At issue here is whether the Plaintiff's damages exceed $5 million. The Plaintiff's Complaint does not seek a specific amount of monetary damages and specifically states that the the value of this matter falls below the $5 million threshold of the Class Action Fairness Act. Tribeca argues that the Plaintiff's obviously non-arbitrary demand for $5,752,515.51 makes it clear beyond a legal certainty that the Plaintiff can prove damages in excess of the CAFA minimum. The Plaintiff's letter does not. In his letter, the Plaintiff expressly stated that the amount was only an estimate. Moreover, as explained by Judge Clark: "The letter fails to demonstrate, with even the slightest detail, how the demand was calculated and what variables were included to reach the amount. For example, Plaintiff's correspondence does not include the number of hours the proposed class members were already compensated for, nor does it include their salaries or the calculation for how the estimate of damages were reached." By relying solely on the Plaintiff's letter, which contains estimated damages, and without further information or analysis, Tribeca fails to meet its burden. Because Tribeca does not satisfy the amount in controversy requirement under CAFA, this Court does not have jurisdiction over this matter. Discretionary Home State Exception Although the Defendant's failure to establish the amount in controversy is dispositive, the Court will also address the CAFA home state discretionary exception since the Defendant also objects to the R&R on these grounds. CAFA provides exceptions to federal court jurisdiction even if the requirements of Section 1332(d)(2) are otherwise satisfied. The discretionary home state exception is one such exception. Pursuant to the discretionary home state exception, a court, in the interests of justice, may decline to exercise jurisdiction over a class action in which greater than one-third but less than two-thirds of the members of the proposed plaintiff classes in the aggregate and the primary defendants are citizens of the State in which the action was originally filed. The action was originally filed in New Jersey state court. The Defendant does not appear to challenge the fact that it is at home in New Jersey or that between one-third and two-thirds of the class members are citizens of New Jersey. Instead, the Defendant argues that the Court should not invoke the discretionary exception because this matter involves interstate trucking, which is a field over which federal courts generally assert jurisdiction. The Defendant maintains that although class members operate out of the Port of Newark, New Jersey, they deliver vehicles to other states. Moreover, the Defendant contends that the outcome of this case will impact other interstate carriers, ocean shipping, port administration, and foreign and interstate commerce in general. Although the Defendant is an interstate trucking company and the resolution of this matter may have an impact outside of this state, the matter involves New Jersey labor law. In fact, five of the six statutory factors favor remand. Factors (A) and (B) weigh towards remand because the asserted claims involve violations of the New Jersey Wage and Hour Law (NJWHL) and the New Jersey Wage and Payment Law (NJWPL). Moreover, the Plaintiff seeks recourse for alleged wage violations committed by a New Jersey employer, and does not assert any other state or federal violations. Factors (D) and (E) also support remand. Because five of the six factors weigh towards remand, this matter is uniquely local. Accordingly, if CAFA jurisdiction did exist, the Court would exercise its discretion and remand the matter to the Superior Court of New Jersey. Preemption In its objection to the R&R, the Defendant also argues that this case should not be remanded because the Plaintiffs claims are preempted by the FAAAA. The Defendant did not assert FAAAA preemption as a basis for federal jurisdiction in its Notice of Removal, and did not argue this issue in opposition to the Plaintiff's motion for remand. Instead, the Defendant raises this argument in its objection to the R&R for the first time. A party objecting to an R&R shall specifically identify the portions of the proposed findings, recommendations or report which an objection is made and the basis of such objection. Thus, a court is not "required to consider objections that were not presented before the magistrate." In this instance, the Defendant does not explain why it failed to raise this argument previously. And while the Court acknowledges that this issue has not been fully briefed, the Defendant's argument appears to be meritless. Consequently, the Court sees no convincing reason to consider the Defendant's preemption argument at this time. Accordingly, the Plaintiff's motion to remand is granted. A full-text copy of the District Court's February 11, 2019 Opinion and Order is available at http://tinyurl.com/yy5xhphwfrom Leagle.com. PEDRO ROBERTS, on behalf of himself and all other similarly situated persons, Plaintiff, represented by RAVI SATTIRAJU, THE SATTIRAJU LAW FIRM, P.C. & ANTHONY SANTOS ALMEIDA, THE SATTIRAJU LAW FIRM, P.C. TRIBECA AUTOMOTIVE, INC., Defendant, represented by WILLIAM D. BIERMAN -- WBierman@pricemeese.com -- Price Meese Shulman & D'Arminio & RICK A. STEINBERG -- RSteinberg@pricemeese.com -- Price Meese Shulman & D'Arminio, P.C. U.S. SECURITY ASSOCIATES: Amaral Suit Claims Unpaid Overtime ------------------------------------------------------------ Kathleen M. Amaral, on behalf of herself and all others similarly situated, Plaintiff, v. U.S. Security Associates, Inc., Defendants, Case No. 19-cv-00189 (M.D. Fla., January 30, 2019), seeks to recover unpaid overtime compensation, liquidated damages, attorneys' and paralegal fees and costs pursuant to the Fair Labor Standards Act. U.S. Security Associates is a provider of security services with several divisional headquarters in various parts of Florida where Amaral worked as an administrative assistant. U.S. Security Associates never paid Plaintiff overtime, at the rate of one and one half of her correct hourly rate despite working in excess of 40 hours per week, asserts the complaint. [BN] Plaintiff is represented by: Steven L. Schwarzberg, Esq. SCHWARZBERG & ASSOCIATES 625 North Flagler Drive, Suite 600 West Palm Beach, FL 33401 Telephone: (561) 659-3300 Facsimile: (561) 693-4540 Email: mail@schwarzberglaw.com steve@schwarzberglaw.com UBER TECHNOLOGIES: Seeks Dismissal of Class Action -------------------------------------------------- Law360 reports that Uber told a federal judge on Feb. 12 that what's left of a putative class action against the ride-hailing company should be tossed after the suit's lead plaintiff, a Massachusetts cab driver, passed away. [GN] UNITED FEDERAL: Court Grants Prelim Approval of Gunter Settlement ------------------------------------------------------------------ The United States District Court for the District of Nevada issued an Order granting Preliminary Approval of Class Action Settlement in the case captioned TONYA GUNTER, individually, and on behalf of all others similarly situated, Plaintiff, v. UNITED FEDERAL CREDIT UNION, DOES 1-5 inclusive, and ROE CORPORATIONS 6-10 inclusive, Defendants. Case No. 3:15-cv-00483-MMD-WGC. (D. Nev.). This Court finds on a preliminary basis that the class as defined in the Settlement Agreement (Settlement Class) meets all of the requirements for certification of a settlement class under the Federal Rules of Civil Procedure and applicable case law. This certification of a preliminary Settlement Class under this Order is for settlement purposes only and shall not constitute, nor be construed as, an admission on the part of the Defendant in this Action that any other proposed or certified class action is appropriate for class treatment pursuant to the Federal Rules of Civil Procedure or any similar statute, rule or common law. Entry of this Order is without prejudice to the rights of Defendant to oppose class certification in this action should the settlement not be approved or not be implemented for any reason or to terminate the Settlement Agreement as provided in the Settlement Agreement. The Court provisionally, and solely for purposes of this settlement, finds that the members of the Settlement Class are so numerous that joinder of all members would be impracticable, that the litigation and proposed settlement raise issues of law and fact common to the claims of the Class Members and these common issues predominate over any issues affecting only individual members of the Settlement Class, that the claims of Tonya Gunter (Named Plaintiff) are typical of the claims of the Settlement Class, that in prosecuting this Action and negotiating and entering into the Settlement Agreement, the Named Plaintiff and her counsel have fairly and adequately protected the interests of the Settlement Class and will adequately represent the Settlement Class in connection with the settlement, and that a class action is superior to other methods available for adjudicating the controversy. The Court has reviewed the Settlement Agreement and the attached Notice of Pending Class Action and Proposed Settlement (Notice) (Exhibit 1 to the Settlement Agreement) and finds that the settlement memorialized therein falls within the range of reasonableness and potential for final approval, thereby meeting the requirements for preliminary approval, and that the Notice should go out to the Settlement Class in the manner described in the Settlement Agreement. The settlement appears to be reasonable in light of the risk inherent in continuing with litigation. The Court also notes that the settlement is a non-reversionary one where no money will be returned to the Defendant. The Court also notes that the settlement was arrived at after an arm's length negotiation involving experienced counsel. The Court finds that the methods of giving notice prescribed in the Settlement Agreement meet the requirements of the Federal Rules of Civil Procedure and due process, are the best notice practicable under the circumstances, shall constitute due and sufficient notice to all persons entitled thereto, and comply with the requirements of the Constitution of the United States, and all other applicable laws. The Court approves and adopts the procedures, deadlines, and manner governing all requests to be excluded from the Class, or for objecting to the proposed settlement, as provided for in the Settlement Agreement. All costs incurred in connection with providing notice and settlement administration services to the Class Members shall be paid from the Settlement Fund. If the settlement is not approved or consummated for any reason whatsoever, the Settlement Agreement and all proceedings in connection therewith shall terminate without prejudice to the status quo ante and rights of the parties to the action as they existed prior to the date of the execution of the Settlement Agreement, except as otherwise provided in the Settlement Agreement. A full-text copy of the District Court's February 14, 2019 Order is available at http://tinyurl.com/y6elej7gfrom Leagle.com. Tonya Gunter, individually, and on behalf of all others similarly situated, Plaintiff, represented by Jae Eddie K. Kim -- jkk@mccunewright.com -- McCune Wright Arevalo LLP, pro hac vice, James Strenio -- James@kicklawfirm.com -- The Kick Law Firm, APC, Richard D. McCune- rdm@mccunewright.com -- McCune Wright Arevalo LLP, pro hac vice, Robert James Dart -- robert@kicklawfirm.com -- The Kick Law Firm, APC, Taras Kick -- Taras@kicklawfirm.com -- pro hac vice, Thomas A. Segal -- Thomas@kicklawfirm.com -- The Kick Law Firm, APC, pro hac vice & Gregory G. Gordon, Glen Lerner Injury Attorneys. United Federal Credit Union, Defendant, represented by James A. Kohl, Howard & Howard Attorneys, PLLC, Robert W. Hernquist, Howard & Howard Attorneys PLLC, Stephen Paul Dunn, Howard & Howard Attorneys PLLC, pro hac vice & Brandon J. Wilson, Howard & Howard. UNITED STATES: Court Issues Injunctive Relief in K. Tiwari Suit --------------------------------------------------------------- The United States District Court for the Western District of Washington, Seattle, issued an Order enjoining Defendants from requiring a biennial series of National Intelligence Agency Checks for continuous monitoring or security clearance eligibility purposes in the case captioned KIRTI TIWARI, et al., Plaintiffs, v. PATRICK M. SHANAHAN, Acting Secretary, United States Department of Defense, in his official capacity, Defendant. No. C17-242 TSZ. (W.D. Wash.). The Court enters the following permanent injunction: the Defendant and the United States Department of Defense are enjoined from requiring, in the absence of individualized suspicion, a biennial series of National Intelligence Agency Checks for continuous monitoring or security clearance eligibility purposes with respect to any plaintiff. A full-text copy of the District Court's February 14, 2019 Order is available at http://tinyurl.com/y3y6c7lffrom Leagle.com. Kirti Tiwari, Seung Yoon Yang, Amandeep Singh, Duncan Makau, Valdeta Mehanja, Raj Chettri, Blerta Mehanja, Rajat Kaushik, Thong Nguyen, Sandeep Singh, Xi Cui, Mengmeng Cai, Kusuma Nio, Qi Xiong, Angelita Acebes, Fleury Ngantchop Keigni Di Satchou & Kaushal Wadhwani, Plaintiffs, represented by Neil T. O'Donnell, CASCADIA CROSS BORDERLAW GROUP LLC, pro hac vice & Joseph R. Shaeffer -- joe@mhb.com -- MACDONALD HOAGUE & BAYLESS. Patrick Shanahan, Acting Secretary, United States Department of Defense, in his official capacity, Defendant, represented by Joseph C. Dugan, US DEPT OF JUSTICE CIVIL DEVISION, FEDERAL PROGRAMS BRANCH, Michael Fraser Knapp, US DEPT OF JUSTICE CIVIL DEVISION, FEDERAL PROGRAMS BRANCH & Nathan M. Swinton, US DEPT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH. UNITED STATES: ICE Faces Class Action Over Video Teleconferencing ----------------------------------------------------------------- WNYC reports that in June of last year, the Immigration and Customs Enforcement's New York Field Office announced that it would start holding hearings for detained immigrants exclusively through video teleconferences. An organization called Brooklyn Defenders Services, alongside the Legal Aid Society and the Bronx Defender's Office filed a class action lawsuit against ICE because of this move. Andrea Saenz is an attorney with the nonprofit Brooklyn Defenders Services and the New York Immigrant Family Unity Project. They provide free lawyers to detained immigrants with low income. Then we take a broader look at how video teleconferencing is heavily relied on in immigration detention cases across the country. WNYC's Beth Fertig is joins us to discuss what this trend looks like nationwide. Click on the 'Listen' button above to hear this segment. Don't have time to listen right now? Subscribe to our podcast via iTunes, TuneIn, Stitcher, or wherever you get your podcasts to take this segment with you on the go. [GN] US ZHIMINGDE: Ruixue Fan Files Securities Class Action in NY ------------------------------------------------------------ Ruixue Fan v. US Zhimingde International Group, LLC, Beijing Zhimingde Science Co. Ltd., China Beijing North Continent Biology Co., Ltd., Beijing Zhimingde Liangzi Bio-Technology Co. Ltd., Beijing Zhengdehuitong Biotech Co. Ltd. and Zhongquan Zou, Jane Doe and John Doe # 1-10, Case No. 1:19-cv-01647 (S.D.N.Y., February 21, 2019), accuses the Defendants of engaging in fraudulent interstate transactions in violation of the Securities Act of 1934. Ms. Fan also accuses the Defendants of selling unregistered securities, misbranding dietary supplement, and improperly labeling their dietary supplement products, among other violations. She alleges that the Defendants advertise their Zhimingde Herbal Supplement products with the medical effect of making human body discharge toxins, and providing an assisting effect in lowering blood lipid, and reducing the risks of chemical hepatic injury. US Zhimingde International Group, LLC, with main business in New York City, operates as a subsidiary of Beijing Zhimingde. Zhongquan Zou is the president of US Zhimingde. The other Defendants are also engaged in marketing and manufacturing of the products. The Plaintiff reserves the right to bring a class action on behalf of other members, who are similarly situated.[BN] The Plaintiff is represented by: Hui Chen, Esq. HUI CHEN AND ASSOCIATES, P.L.L.C. 136-20 38th Ave., Suite 9E Flushing, NY 11354 Telephone: (718) 463-2666 UXIN LIMITED: Faces Chiu Suit over 50% Drop in Share Price ---------------------------------------------------------- The case, DANIEL CHIU, individually and on behalf of all others similarly situated, Plaintiff v. UXIN LIMITED; KUN DAI; ZHEN ZENG; RONG LU; JULIAN CHENG; DOU SHEN; HAINAN TAN; MORGAN STANLEY & CO. INTERNATIONAL PLC; GOLDMAN SACHS (ASIA) L.L.C.; J.P. MORGAN SECURITIES LLC; CHINA INTERNATIONAL CAPITAL CORPORATION HONG KONG SECURITIES LIMITED; and CHINA RENAISSANCE SECURITIES (HONG KONG) LIMITED, Defendants, Case No. 650633/2019 (N.Y. Sup., New York Cty., Jan. 31, 2019) is a securities class action brought on behalf of a class consisting of all persons and entities, other than Defendants and their affiliates, who purchased or otherwise acquired publicly traded securities of Uxin pursuant and traceable to the Company's initial public offering held on or around June 27, 2018, seeking to recover compensable damages caused by Defendants' violations of Sections 11 and 15 of the Securities Act of 1933. According to the complaint, on June 28, 2018, the Company filed with the Securities and Exchange Commission a prospectus for its upcoming IPO, which forms part of the Registration Statement. The Company sold in its IPO 25,000,000 American Depositary Shares ("ADSs") at a price of $9 per share. Each ADS represents three shares of Class A common stock. The Company received proceeds of approximately $205.1 million from the IPO, net of underwriting discounts and commissions. The proceeds from the IPO were purportedly to be used to improve the Company's transaction service capabilities, research and development, and general corporate purposes. On November 20, 2018, Uxin reported that the transaction volume of its 2B business had declined 8.5% year-over-year and the gross merchandise value ("GMV") had declined 14.8% year-over-year due to the Company's decision to stop providing services such as inspections for its customers. As a result, Uxin's share price had fallen $4.50 per share in total from its $9 IPO price, or 50%, to close at $4.50 on November 20, 2018. The Defendants made materially false and misleading statements regarding the Company's business, operational and compliance policies. Specifically, the Registration Statement was materially false and misleading and omitted to state that: (1) Uxin was likely to stop providing complementary services such as inspections to its customers; (2) instead, Uxin would connect consumers to dealers who would provide such complementary services; (3) as a result, Uxin's 2B business would be materially impacted; and (4) consequently, Defendants' statements in the Registration Statement regarding Uxin's business, operations, and prospects, were materially false and misleading. Uxin Limited, through its subsidiaries, operates an used car e-commerce platform in China. Uxin Limited was founded in 2011 and is based in Beijing, China. [BN] The Plaintiff is represented by: Phillip Kim, Esq. Laurence M. Rosen, Esq. THE ROSEN LAW FIRM, P.A. 275 Madison Avenue, 34th Floor New York, NY 10016 Telephone: (212) 686-1060 Facsimile: (212) 202-3827 E-mail: pkim@rosenlegal.com lrosen@rosenlegal.com VALE SA: Minas Gerais to Sue Over Brumadinho Dam Disaster --------------------------------------------------------- OOSKAnews reports that the Brazilian state of Minas Gerais will file a civil class action against iron ore mining giant Vale SA as the numbers of deaths caused by the Brumadinho dam disaster rose to 165 with 155 still unaccounted for. An internal October 2018 document from Vale which projected how much a dam collapse in Brumadinho would cost, how many people could die and what would be its causes will be cited, according to the Minas Gerais State Attorney office. The report stated that nine other dams were also at risk of collapsing. [GN] WE SUPERLATIVE: Olsen Asserts Breach of Disabilities Act -------------------------------------------------------- We Superlative Conspiracy, Inc. is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled Thomas J. Olsen, individually and on behalf of all other persons similarly situated, Plaintiff v. We Superlative Conspiracy, Inc., Defendant, Case No. 1:19-cv-01107 (E.D. N.Y., February 25, 2019). WE Superlative Conspiracy, Inc. retails apparel online. The Company offers shirts, hoodies, jeans, swimwear, shorts, and trousers, as well as accessories for men and women. WE Superlative Conspiracy serves customers worldwide.[BN] The Plaintiff is represented by: Christopher Howard Lowe, Esq. Lipsky Lowe LLP 630 Third Avenue New York, NY 10017 Tel: (212) 392-4772 Fax: (212) 444-1030 Email: chris@lipskylowe.com WEST 171: Court Certifies Rent Fraud Suit as Class Action --------------------------------------------------------- The Supreme Court, New York County, issued a Decision and Order granting Defendant's Motion for Class Certification in the case captioned EMMA GRIFFITH and MERISSA MEYERS, on behalf of themselves and all others similarly situated, Plaintiffs, v. WEST 171 ASSOCIATES, LP, Defendant. Docket No. 159398/2017, Motion Seq. No. 001. (N.Y. Sup.). The Plaintiffs are seeking an order pursuant to CPLR Section 901 et seq. certifying this action as a class action. This action was commenced as a putative class action by plaintiffs on behalf of themselves and on behalf of all other past, present and prospective tenants residing at 651 West 171st Street, City and State of New York. The Plaintiffs allege that the building is regulated by the Rent Stabilization Code (RSC) by the defendant's receipt of J-51 tax benefits since 2008 and that the defendant's participation in the J-51 tax reduction program will terminate in 2042. The Plaintiffs allege that defendant engaged in a fraudulent scheme intending to overcharge its past, current and prospective tenants with rents that have exceeded or will exceed Rent Stabilization levels during the J-51 tax benefit period. CPLR Section 901(a) sets forth five threshold requirements that must be satisfied before a class action may be maintained: 1. the class is so numerous that joinder of all members, whether otherwise required or permitted, is impracticable; 2. there are questions of law or fact common to the class which predominate over any questions affecting only individual members; 3. the claims or defenses of the representative parties are typical of the claims or defenses of the class; 4. the representative parties will fairly and adequately protect the interests of the class; and 5. a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The Plaintiffs argue that they have satisfied each of the five prerequisites for class certification. The Plaintiffs contend that given the issues alleged in the complaint, litigating these claims as a class action is the superior method to resolve the allegations due to the defendant's alleged practice of circumventing the Rent Stabilization Laws while receiving J-51 tax benefits. The Defendant argues that the plaintiffs' motion should be denied because Home and Community Renewal (HCR), and not this Court, has original jurisdiction over the rent overcharge claims alleged in the complaint. This argument was rejected by the Court in Downing v First Lenox Terrace Assoc., 107 A.D.3d 86, 91, 965 N.Y.S.2d 9 [2013], and is similarly rejected here. The Supreme Court has concurrent jurisdiction with HCR to entertain an action to recover rent overcharges. Downing v First Lenox Terrace Assoc., 107 A.D.3d 86, 91, 965 N.Y.S.2d 9 [2013] citing, Wolfisch v Mailman, 196 A.D.2d 466, 601 N.Y.S.2d 300 [1st Dept. 1993]. Accordingly, the plaintiffs are justified in litigating their claims in this court and not HCR. As to numerosity, the plaintiffs have established that there are forty-eight residential units in the Building that are alleged to be slated for unlawful deregulation. Based on the documents submitted in support of this motion, it is safe to assume that the class may exceed that number, taking into account turnover and co-tenancies. Moreover, the class is easily defined because every unit in the Building is subject to rent stabilization and the number of unlawful leases provided to the current and former tenants, during the relevant period, is information that is within the control and knowledge of the defendant and can be exchanged through the discovery process. Accordingly, the court rejects defendant's argument that the class is overbroad and cannot be defined and finds that the plaintiffs have met their burden to establish the threshold requirement of numerousity. Next, the defendant argues that the plaintiffs have not adequately established the requirement that common issues predominate over what they allege to be inherently individualized issues presented by each putative class member's individual claims for rent-overcharge. The Defendant similarly asserts that the plaintiffs have not established typicality because plaintiffs have failed to present sufficient proof demonstrating that their claims are typical of those of the proposed class. The court rejects this argument noting that the plaintiffs have demonstrated that the common issue of whether the defendant unlawfully deregulated the apartments while receiving J-51 benefits predominates any individual issues and is common to the entire class, thus justifying class certification as a means to prevent inconsistent rulings and conserve judicial resources. Finally, the defendant's contention that the plaintiffs have not established adequacy because there are no affidavits submitted by the proposed class representatives evidencing their understanding of the action or familiarity with the pleadings or other documents, is unavailing. The detailed allegations set forth in the complaint are verified on the basis of the plaintiffs' personal knowledge and demonstrate familiarity with the basic elements of the claims, to satisfy the prerequisite set forth in CPLR Section 901(a)(4). Likewise, the plaintiffs have demonstrated that the proposed class counsel is experienced in landlord/tenant law, and in particular has years of experience in J-51 rent status cases. Finally, CPLR 901(a)(5) requires that a class action be superior to other available methods for the fair and efficient adjudication of the controversy. Based on the detailed allegations set forth in the complaint, the alternative to a class action to resolve the issues alleged, would be individual actions by tenants or administrative proceedings commenced before HCR. The liability determinations are the same for all of the proposed class members; thus, adjudicating the claims individually would be inefficient. Litigating the plaintiffs' claims as a class action lawsuit will conserve judicial resources by avoiding a multiplicity of lawsuits involving the same basic facts. Accordingly, the plaintiffs have satisfied the final requirement of CPLR 901(a). The Plaintiffs' motion pursuant to CPLR Sections 901 and 902 for class certification is granted. A full-text copy of the Supreme Court's February 11, 2019 Order is available at http://tinyurl.com/y5y6nepnfrom Leagle.com. [*] BakerHostetler Issues Q4 2018 Insurance Class Action Update --------------------------------------------------------------- Mark Johnson, Esq. -- mjohnson@bakerlaw.com -- of BakerHostetler, in an article for JDSupra, reports that the final quarter of 2018 witnessed a number of new twists on old theories in class actions involving auto and homeowners claims and coverages, as well as further activity in some long-running class actions. A copy of the firm's Q4 2018 Insurance Class Action Update is available at https://is.gd/xZmlil [GN] [*] Competition Bureau, DPP Revise Immunity and Leniency Programs ----------------------------------------------------------------- Kyle McMillan, Esq. -- kmcmillan@mccarthy.ca -- and Lan Nguyen, Esq. -- lxtnguyen@mccarthy.ca -- of McCarthy Tetrault, in an article for Mondaq, report that last fall, the Competition Bureau (the "Bureau") and the Public Prosecution Service (acting under the direction of the Director of Public Prosecutions, the "DPP") announced revisions to their Immunity and Leniency Programs (collectively, the "Programs"). The details of these new Programs are discussed in a previous blog post. In this post, we explore the interplay between the Programs and class action suits. Background The Immunity and Leniency Programs have existed since 2000 and 2010, respectively, and their purpose is straightforward: To expose and thereby stop criminal anti-competitive behaviour by eliminating or reducing liability for parties that come forward and cooperate with investigations under the federal Competition Act, RSC 1985, c C-34 (the "Act"). The Immunity Program applies to offences under sections 45-49 (cartel behaviour, including conspiracy and bid-rigging) or sections 52-55.1 (false or misleading representations and deceptive marketing) of the Act, and then only to the first party to request immunity and to have sufficient information for the Bureau to refer the matter to the DPP. The Leniency Program only applies to offences under sections 45-49 of the Act, but is available to any liable party willing to cooperate with an investigation (per section 109 of the Bureau's Technical Bulletin, the "Bulletin"). Possible implications for class action lawsuits A key change in the revised Programs is the Grant of Interim Immunity ("GII"). This new stage is a conditional immunity, subject to the applicant's ongoing cooperation with the investigation (under the old Program, immunity was granted up front, and could be revoked in the event of a breach). The GII sets out the requirements for the applicant to receive final immunity (per sections 103-105 of the Bulletin), which happens only after an applicant has fulfilled all of its obligations under the GII and either: litigation is completed (including the lapsing of all necessary appeal periods); or no other assistance from the applicant is considered necessary. Both the issuance of the GII and the final grant of immunity are at the discretion of the DPP, and early revocation is also possible. Each GII will set out the circumstances in which it may be revoked, which gives some degree of certainty, but unfortunately the GII must be in place to know this information (see section 74 of the Bulletin), which makes pre-disclosure decisions difficult. The possibility of not receiving immunity creates an obvious legal uncertainty for the duration of the GII, which may be many years. The impact of not receiving immunity would be significant, not only for criminal liability, but also for civil liability in class actions. One must presume that the Bureau will not cease an investigation after the DPP revokes a GII, as it specifically reserves the right to "take further action against the applicant as appropriate in the circumstances" (section 107 of the Bulletin). The Bureau fields many requests for information from class action litigants, and the good news is that it takes confidentiality very seriously. The bad news however, especially for a party denied immunity, is that once a criminal trial commences, the alleged acts will become known. This should also be considered by Leniency Program applicants, who must eventually plead guilty to an offence. Once the allegations become public, a class action is all but certain, as this recent Ontario case demonstrates. A conviction under Part VI of the Act (which includes all of the offences to which the Programs could apply) puts a party at an even greater disadvantage because section 36(2) of the Act states that the record of proceedings in that case are rebuttable proof of wrongdoing in a civil case, and any evidence of the effects of the wrongdoings likewise become evidence in a civil case brought under section 36. Incorporating class actions into the liability planning process For corporations, and some individuals, any competition-related indictment or conviction makes a class action suit likely. Parties who believe they may have violated the Act face a complex series of decisions because they may only be able to speculate on the positions of other relevant parties, as well as the certainty of liability. The possibility of a class action suit only adds to this complexity, given that a party which is not criminally liable may still be civilly liable, as the Bureau itself has pointed out in a recent case. The Bureau evidently considered civil liability in drafting the revisions to the Programs, because they include a new section clarifying that participants' obligations to the Crown's investigation will supersede obligations from any civil action. The Bureau may allow the party to cooperate with civil litigants when the Crown's investigation will not be compromised, but that is discretionary (see sections 216-219 of the Bulletin). It is currently before the Supreme Court of Canada whether the Act forms a complete code for competition offences, or whether common law remedies will remain open to plaintiffs (see Godfrey v Sony Corporation, appealing 2017 BCCA 302). In any event, statutory damages under section 36 of the Act will remain available to potential litigants. Therefore, parties considering immunity or leniency applications should seek legal advice and carefully consider the effects of a possible class action suit before taking any action. [GN] [*] Dechert Attorneys Examine Life Sciences Securities Suits ------------------------------------------------------------ Life sciences companies were popular targets of class action securities lawsuits in 2018. In the most recent edition of the law firm's annual survey, Dechert litigators David H. Kistenbroker, Joni S. Jacobsen and Angela M. Liu examine these trends as well as why life sciences companies have remained attractive targets for class action securities fraud claims. They also offer best practices for life sciences companies to reduce their risk of being targeted. A copy of the full Survey is available at https://is.gd/W1Twx9 [GN] ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2019. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000. *** End of Transmission ***