/raid1/www/Hosts/bankrupt/CAR_Public/190315.mbx
C L A S S A C T I O N R E P O R T E R
Friday, March 15, 2019, Vol. 21, No. 54
Headlines
ABACUS DATA: Violates TCPA by Sending Unsolicited Texts, Says Izor
ADVANCED MICRO: Bid to Dismiss Hauck Class Suit Underway
ADVANCED MICRO: Bid to Dismiss Kim Securities Suit Underway
AIR METHODS: Lancaster Sues Over $51K Helicopter Transport Fee
ALJ REGIONAL: Bid to Remand Marshall Suit Underway
AMC DETROIT: Cross et al Seek to Certify FLSA Collective Action
AMERICAN EXPRESS: June 2019 Trial in Anti-Steering Rules Suit
AMNJ ENTERPRISES: Burton Shortchanged on Delivery Reimbursements
APPLE INC: Maldonado Seeks to Certify Class of AppleCare Buyers
ARLO: Faces Class Action Over Ultra 4K Camera Battery Failure
ASTEC INDUSTRIES: Taylor Employees' Fund Hits Share Price Drop
BANK OF AMERICA: Faces Suit Over Sherman Act Violation
BANK OF AMERICA: Kaymark Appeals W.D. Pa. Orders to 3rd Circuit
BANK OF NEW YORK: Bid to Certify Class in Royal Park Suit Denied
BIG FISH: Faces Class Action in Washington Over "Virtual Chips"
BLACKROCK INSTITUTIONAL: Court Modifies Baird ERISA Case Schedule
BOARDWALK PIPELINE: Substitute Complaint Filed in Mischal & Berger
BRIXMOR PROPERTY: $19.5MM Settlement Balance Remains in Escrow
BROOKDALE SENIOR: Seeks 9th Cir. Review of Ruling in Stiner Suit
BRYANT HEATING: Vullings Suit Over Defective Furnace Dismissed
CALIFORNIA: I.N. Seeks Certification of Medi-Cal Recipients Class
CANADA: Class Action Mulled Over Deadly RHVP Crashes
CARLYLE GROUP: Settlement in Cobalt Securities Suit Okayed
CBA INDUSTRIES: Hernandez Seeks Unpaid Overtime, Hits Retaliation
CHINANTLA DELI: Chavez Suit Alleges FLSA Violation
COMPREHENSIVE HEALTH: Adame Labor Suit Removed to N.D. Cal.
CONSOL ENERGY: Casey Suit in West Virginia Still Ongoing
COOK COUNTY, IL: Class Cert. Bid in Williams et al. Suit Denied
CREDIT SUISSE: Court Narrows Claims in Stockholders Suit
CVS PHARMACY: Court Dismisses Forouzesh Suit with Leave to Amend
DHI GROUP: Hearing This Month on Initial Settlement Approval
DIGNITY HEALTH: Gray Suit Challenges Deceptive Surcharge Fees
DISH NETWORK: Unit Continues to Defend Krakauer Suit
DPD: Faces Class Action Over Point-Based Disciplinary System
DXC TECHNOLOGY: Perspecta Units Liable in Forsyth Case
EASTON DIAMOND: Wisdom Appeals C.D. Cal. Decision to 9th Circuit
EMPLOYERS INSURANCE: First State Orthopaedics Hits Denied Claims
ENHANCED RECOVERY: Robinson et al. Seek to Certify Class
EQT PRODUCTION: Settles Royalty Class Action for $53.5MM
ESSA BANCORP: Continues to Defend RESPA-Related Suit
EXECU-SEARCH GROUP: Bid to Strike Class Claims in Garcia Suit Nixed
EXTENDED LIFE: Employee Class Certified in Hawkins Suit
EZCORP INC: Court Certifies Class in Rooney Securities Fraud Suit
FARMERS RESTAURANT: May 30 Fairness Hearing on Stephens Settlement
FASTKIT INC: Carmona Hits Misclassification, Seeks Overtime Pay
FEDEX GROUND PACKAGE: Ramirez Suit Asserts FCRA Violation
FLOWCO PRODUCTION: Brigham Seeks to Recover Unpaid Overtime
GEORGE'S INC: Rodriguez et al. Seek OT Pay for Field Technicians
GEORGIA POWER: Faces Class Action Over Inflated Franchise Fees
GRAYCO COMMUNICATIONS: George's Bid for Class Certification OK'd
GREENSPIRE HOLDINGS: Navarro Sues Over TCPA Violation
HALLIBURTON CO: Bid to Dismiss Magruder Class Action Underway
HIKVISION USA: Fails to Pay Overtime and Meal Premiums, Cao Says
HILL'S PET: Hall Sues Over Toxic Levels of Vitamin D in Dog Food
HOMEADVISOR INC: Sued by Hobbs Over Unsolicited Marketing Calls
HYUNDAI MOTOR: Settles Class Action Over Shattered Sunroofs
IAN MOTOS: Alawamleh Sues Over Unpaid Minimum, Overtime Wages
INDEPENDENT NATIONAL: Faces Class Action Election Postponement
INDIA GLOBALIZATION: Continues to Defend Harris-Carr Suit
INDIA GLOBALIZATION: NY Court Dismisses Samn Class Suit
INTEL CORP: Files Petitions for Writ of Certiorari in Sulyma Suit
INTERCONTINENTAL EXCHANGE: Livonia Fund Alleges Index Price-Rigging
KAISER FOUNDATION: Sued by Hunter Over Unlawful Debt Collection
KINDER MORGAN: Settlement Reached in Wisconsin Class Action
KRS GLOBAL: Grant of Partial Summary Judgment in Sawyer Recommended
KRYSTAL COMPANY: Jolley FLSA Suit Seeks to Recover Overtime Pay
MARRIOTT EMPLOYEES: Hourly Workers Sue Over Predatory Mini-Loans
MASTERCARD INC: Appeal in Canadian Class Suit Underway
MASTERCARD INC: ATM Surcharge-Related Suits Still Ongoing
MASTERCARD INC: Settlement of Damage Class Has Preliminary Okay
MASTERCARD INC: Shift Fraud Liability Suit Still Ongoing
MASTERCARD INC: TCPA Class Suit in Florida Remains Stayed
MDL 2492: Gage Suit v. NCAA over Student-Athletes' Safety Moved
MDL 2724: EPPs, IRPs State Law Claims on Group 1 Drugs Narrowed
MDL 2875: 10 Valsartan Suits Moved to District of New Jersey
MDL 2875: Judson Suit v. Pharma Cos. over Valsartan Consolidated
MEDLEY CAPITAL: Faces Lax and Dicristino Suit in New York
MEDLEY CAPITAL: FrontFour Challenges Sierra Income Merger Deal
MEDLEY CAPITAL: RICO Suits in Virginia & Pennsylvania Ongoing
MERCANTILE ADJUSTMENT: E.D.N.Y. Dismisses Goodman FDCA Suit
MERCHANTS & MEDICAL: Voeks & Fote File Placeholder Class Cert. Bid
MIAMI, FL: Judge Abolishes Homeless Consent Decree
MIDLAND CREDIT: Contreras Suit Moved to Eastern District New York
MOLSON COORS: April 16 Lead Plaintiff Motion Deadline Set
MONSANTO COMPANY: Bevers Sues over Sale of Roundup Products
MONSANTO COMPANY: Bonzos Sue over Sale of Roundup Products
MS RENTALS: Court Dismisses Bid for Class Certification as Moot
MUNICIPAL EMPLOYEES: Denial of Counsel Fee in Johnson Suit Affirmed
NATIONSTAR MORTGAGE: Court Narrows Claims in Amended Contreras Suit
NCAA: Brown Sues over Safety of Temple Student-Athletes
NCAA: Helminiak Sues over Safety of UND Student-Athletes
NEPTUNE SOCIETY: Goodwin Sues Over Illegal Conversation Recordings
NEUSTAR INC: Court Dismisses Amended Teamster Securities Suit
NEW ENGLAND MOTOR: Faces Class Action Over Unpaid Employee Wages
NEWPENN FINANCIAL: Abat Sues Over Illegal Collection Attempts
NFL: Hernandez's Child Can't Sue Over Brain Disease
NIANTIC: Settles Homeowners' Pokemon Go Class Action
NOVO NORDISK: Court Narrows Insulin Pricing Suit Claims
OS RESTAURANT SERVICES: Bradley Seeks to Recover Unpaid Overtime
PARTNERS IN PRIMARY: Denial of Bids to Dismiss Rios Suit Endorsed
PDC ENERGY: Colorado Court Narrows Claims in Dufresne Suit
PEI WEI ASIAN: $600K Hernandez Suit Settlement Has Final Approval
PORTFOLIO RECOVERY: Gomes' Bid to Certify Two Classes Denied
POWERCOR: Bushfire Victims Won't Bear Legal Costs of Failed Case
POWERCOR: Maddens Lawyers May Bear Legal Costs Bushfire Case
PRO CUSTOM SOLAR: Niemczyk Sues Over Unsolicited Telemarketing
PROCTER & GAMBLE: Faces Class Action Over Oral B Mouthwash
PROSHARES TRUST II: Faces Ford Class Action Suit in New York
PUMA BIOTECHNOLOGY: Norfolk Pension Fund Wins Securities Case
QUALITY HUTS: Sagendorf Seeks Okay of Notice to Delivery Drivers
RAYMOND JAMES: Bid to Stay Trial in Wistar Suit Pending
RENT-A-CENTER INC: Seeks 9th Cir. Review of Ruling in Blair Suit
REVOLUTION LIGHTING: Glavan Hits Drop in Stock Price
REWALK ROBOTICS: Class Action in Massachusetts Still Ongoing
RHAPSODY INT'L: Motion for Class Action Settlement Approval Filed
ROCKEFELLER UNIVERSITY: Levy Konigsberg Files Class Action
SACRAMENTO, CA: Court Approves Settlement in Valentine FLSA Suit
SIMM ASSOCIATES: Brotz Seeks FDCPA and FCCPA Class Certification
SMC STONE: Cumbe Suit Alleges Wage and Hour Law Violations
SODEXO INC: Rivera Moves to Certify Class of Hourly-Paid Workers
SPOTIFY TECH: Appeal from Ferrick Case Ruling Due April 15
SSC CARMICHAEL: Farfan's Bid to Clarify Feb 1 Arbitration Order OKd
ST. AUGUSTINE SCHOOL: Chebere Appetite Suit Alleges TCPA Violation
SUBSTRATUM: Class urged Over Day-Trading of ICO Funds
SYNERGETIC COMMUNICATION: Faces Gorman Suit in E.D. New York
T ROWE PRICE: Continues to Defend Class Suit over 401(k) Plan
TECHPRECISION CORP: Discovery Extended to April 22 in Suit v. Ranor
TELENAV INC: Expects Gergetz Suit to Be Concluded in November 2019
TENNESSEE: Court Narrows Claims in L.L. ADA Suit
TEXAS: Garibay Voting Rights Suit Moved to W.D. Tex.
TEXAS: Notice of Appeal from Denial of Class Cert. in Wells Nixed
TEZOS: Faces Consolidated ICO Class Action
TRANS-ATLANTIC DIRECT: Faces Class Action in Canada Over Fraud
TRANSNATIONAL FOODS: Young Suit Over Deceptive Marketing Dismissed
TRISTAR PRODUCTS: DOJ Seeks Reversal of Class Action Settlement
UBIQUITI NETWORKS: Defendants' Response Due March 22
UMG RECORDINGS: Waite et al. Sue over Copyright Infringement
UNITED KINGDOM: Dismissal of Epperson Suit With Prejudice Endorsed
UNITED STATES: More Insurers Win Suits v. HHS Over Unpaid CSRs
UNITED STATES: New York Court Denies TRO Request in Moreno Suit
UQM TECHNOLOGIES: Poston Files Securities Class Action in Colorado
US IT SOLUTIONS: Fails to Pay for All Hours Worked, Robichaud Says
UXIN LIMITED: Araujo Hits Share Drop from Discontinued Perks
VISIONSTREAM: Shine Lawyers Seek Support for Class Action
VIZIO: April 29 Settlement Claim Form Filing Deadline Set
VOLKSWAGEN GROUP: Court Trims Claims in 1st Amended Mandani Suit
WALLICK PROPERTIES: Faces Class Action Over Apartment Fire
WALMART: Female Employees File Gender Discrimination Suits
WASHINGTON: Court Dismisses Belgau Suit over Union Dues
WENDY'S COMPANY: Agreement Reached in Cyber Attack-Related Suit
WHIRLPOOL CORP: 6th Cir. Flips Ruling on CBAs in Zino Suit
WORLDWIDE GOLF: Discriminates Disabled Persons, Murillo Alleges
YALE UNIVERSITY: Female Students File Title IX Class Action
YELLOWSTONE CAPITAL: Dillon Suit Alleges TCPA Violation
Asbestos Litigation
ASBESTOS UPDATE: $14MM Asbestos Verdict Upheld
ASBESTOS UPDATE: Asbestos Suits Changes Criticized
ASBESTOS UPDATE: Ashland Global Had 53,000 Open Claims at Dec. 31
ASBESTOS UPDATE: Contractor Fined $10K for Asbestos Violations
ASBESTOS UPDATE: EnPro Industries Has $13.1MM Insurance in 4Q
ASBESTOS UPDATE: Former Shipyard Worker Appeals Asbestos Diagnosis
ASBESTOS UPDATE: Hercules LLC Had $276MM Reserve at Dec. 31
ASBESTOS UPDATE: Hercules LLC Had 12,000 Open Claims at Dec. 31
ASBESTOS UPDATE: HII Continues to Defend PI Claims at Dec. 31
ASBESTOS UPDATE: Owens-Illinois Defends 1,070 Lawsuits at Dec. 31
ASBESTOS UPDATE: Owens-Illinois Has $602MM Liabilities at Dec. 31
ASBESTOS UPDATE: Payout After Decades of Asbestos Exposure
ASBESTOS UPDATE: Raps Filed vs. 4520 Corp. for Asbestos Injuries
ASBESTOS UPDATE: Ruling Favors Water Companies Affirmed in Hubbard
ASBESTOS UPDATE: SMP Increases Liability to $46.7MM in 4Q 2018
ASBESTOS UPDATE: Talc Supplier Seeks Ch. 11 Amid Asbestos Claims
ASBESTOS UPDATE: Travelers Had $1.3-Bil. Net Reserves at Dec. 31
ASBESTOS UPDATE: Union Carbide Faces 12,780 Claims at Dec. 31
ASBESTOS UPDATE: Union Carbide Has $1.3-Bil. Liability at Dec. 31
ASBESTOS UPDATE: Unopposed Asbestos Case Dismissal Bid Granted
ASBESTOS UPDATE: Widow Blames Asbestos for Husband's Death
ASBESTOS UPDATE: Wife Died Inhaling Asbestos From Hubby's Moustache
ASBESTOS UPDATE: Worker Heirs Wins 2nd Asbestos Case
*********
ABACUS DATA: Violates TCPA by Sending Unsolicited Texts, Says Izor
------------------------------------------------------------------
PAUL IZOR, individually and on behalf of all others similarly
situated v. ABACUS DATA SYSTEMS INC., a California corporation,
Case No. 3:19-cv-01057 (N.D. Cal., February 26, 2019), seeks to end
Abacus' violation of the Telephone Consumer Protection Act. The
Plaintiff asserts that Abacus sends unsolicited, autodialed text
messages to consumers, including to consumers, who have registered
their phone numbers on the national Do Not Call registry.
Abacus is a California corporation headquartered in San Diego,
California. The Defendant conducts business throughout this
District, the state of California, and the United States.
Abacus sells software services to professionals, including
attorneys and accountants. Abacus' product offerings include
Abacus Private Cloud, AbacusLaw, HotDocs, ResultsCRM, and
OfficeTools.[BN]
The Plaintiff is represented by:
David S. Ratner, Esq.
DAVID RATNER LAW FIRM, LLP
33 Julianne Court
Walnut Creek, CA 94595
Telephone: (212) 751-9800
E-mail: David@davidratnerlawfirm.com
- and -
Avi R. Kaufman, Esq.
KAUFMAN P.A.
400 NW 26th Street
Miami, FL 33127
Telephone: (305) 469-5881
E-mail: kaufman@kaufmanpa.com
- and -
Stefan Coleman, Esq.
LAW OFFICES OF STEFAN COLEMAN, P.A.
201 S. Biscayne Blvd., 28th Floor
Miami, FL 33131
Telephone: (877) 333-9427
Facsimile: (888) 498-8946
E-mail: law@stefancoleman.com
ADVANCED MICRO: Bid to Dismiss Hauck Class Suit Underway
--------------------------------------------------------
Advanced Micro Devices, Inc. said in its Form 10-K report filed
with the U.S. Securities and Exchange Commission on February 8,
2019, for the fiscal year ended December 29, 2018, that the company
is seeking dismissal of a class action entitled, Diana Hauck et al.
v. AMD, Inc.
Since January 19, 2018, three putative class action complaints have
been filed against us in the United States District Court for the
Northern District of California: (1) Diana Hauck et al. v. AMD,
Inc., Case No. 5:18-cv-0047, filed on January 19, 2018; (2) Brian
Speck et al. v. AMD, Inc., Case No. 5:18-cv-0744, filed on February
4, 2018; and (3) Nathan Barnes and Jonathan Caskey-Medina, et al.
v. AMD, Inc., Case No. 5:18-cv-00883, filed on February 9, 2018.
On April 9, 2018, the court consolidated these cases and ordered
that Diana Hauck et al. v. AMD, Inc. serve as the lead case. On
June 13, 2018, six plaintiffs (from California, Louisiana, Florida,
and Massachusetts) filed a consolidated amended complaint alleging
that the company failed to disclose its processors' alleged
vulnerability to Spectre. Plaintiffs further allege that the
company's processors cannot perform at their advertised processing
speeds without exposing consumers to Spectre, and that any
"patches" to remedy this security vulnerability will result in
degradation of processor performance.
The plaintiffs seek damages under several causes of action on
behalf of a nationwide class and four state subclasses (California,
Florida, Massachusetts, Louisiana) of consumers who purchased the
company's processors and/or devices containing AMD processors. The
plaintiffs also seek attorneys' fees, equitable relief, and
restitution.
Pursuant to the court's order directing the parties to litigate
only eight of the causes of action in the consolidated amended
complaint initially, the company filed a motion to dismiss on July
13, 2018. On October 29, 2018, after the plaintiffs voluntarily
dismissed one of their claims, the court granted the company's
motion and dismissed six causes of action with leave to amend. The
plaintiffs filed their amended consolidated complaint on December
6, 2018. On January 3, 2019, the company again moved to dismiss the
subset of claims currently at issue.
Advanced Micro said, "Based upon information presently known to
management, we believe that the potential liability, if any, will
not have a material adverse effect on our financial condition, cash
flows or results of operations."
Advanced Micro Devices, Inc. operates as a semiconductor company
worldwide. The company operates in two segments, Computing and
Graphics; and Enterprise, Embedded and Semi-Custom. Advanced Micro
Devices, Inc. was founded in 1969 and is headquartered in Santa
Clara, California.
ADVANCED MICRO: Bid to Dismiss Kim Securities Suit Underway
-----------------------------------------------------------
Advanced Micro Devices, Inc. said in its Form 10-K report filed
with the U.S. Securities and Exchange Commission on February 8,
2019, for the fiscal year ended December 29, 2018, that the company
is awaiting a court's decision on its bid to dismiss the case, Kim
et al. v. AMD, et al.
AMD says, "On January 16, 2018, a putative class action lawsuit
captioned Kim et al. v. AMD, et al., Case No. 3:18-cv-00321 was
filed against us in the United States District Court for the
Northern District of California. The complaint purports to assert
claims against us and certain individual officers for alleged
violations of Sections 10(b) and 20(a) of the Exchange Act, and
Rule 10b-5 of the Exchange Act. The plaintiff seeks to represent a
proposed class of all persons who purchased or otherwise acquired
our common stock during the period February 21, 2017 through
January 11, 2018."
The complaint seeks damages allegedly caused by alleged materially
misleading statements and/or material omissions by the company and
the individual officers regarding a security vulnerability
(Spectre), which statements and omissions, the plaintiff claims,
allegedly caused by the company's common stock price to be
artificially inflated during the purported class period. The
complaint seeks unspecified compensatory damages, attorneys' fees
and costs.
On August 3, 2018, plaintiffs filed an amended complaint with
similar allegations and shortening the class period to June 29,
2017 through January 11, 2018. The company filed a motion to
dismiss plaintiffs' claims on September 25, 2018, and plaintiffs
filed an opposition to the company's motion to dismiss on November
14, 2018.
AMD says, "Based upon information presently known to management, we
believe that the potential liability, if any, will not have a
material adverse effect on our financial condition, cash flows or
results of operations."
Advanced Micro Devices, Inc. operates as a semiconductor company
worldwide. The company operates in two segments, Computing and
Graphics; and Enterprise, Embedded and Semi-Custom. Advanced Micro
Devices, Inc. was founded in 1969 and is headquartered in Santa
Clara, California.
AIR METHODS: Lancaster Sues Over $51K Helicopter Transport Fee
--------------------------------------------------------------
DAVID JACKSON LANCASTER III on behalf of himself and all others
similarly situated v. AIR METHODS CORPORATION and ROCKY MOUNTAIN
HOLDINGS, LLC, Case No. 7:19-cv-00338-LSC (N.D. Ala., February 26,
2019), is brought on behalf of the Plaintiff and all other
similarly situated persons charged by the Defendants for the
helicopter transportation of patients to hospitals throughout the
United States, including the state of Alabama.
Mr. Lancaster, who was billed a total of $51,711 for transportation
services following an accident, alleges that there is no express
contract, written or oral, for the payment of the prices charged
for the helicopter transportation between him and the Proposed
Class on one hand, and the Defendants on the other. He contends
that the Defendants do not inform either the patients or those
charged for the helicopter transportation the price of the
transportation, and no express agreement exists to pay the price
charged by the Defendants.
Air Methods Corporation is incorporated under the laws of Delaware
with a principal place of business located in Englewood, Colorado.
Air Methods is a holding company that owns and operates under a
variety of company names across the country, including as Rocky
Mountain Holdings, LLC. Air Methods directs all collection efforts
jointly with Rocky Mountain Holdings.
Rocky Mountain Holdings, LLC, is a limited liability company
organized under the laws of Delaware with a principal place of
business located in Englewood, Colorado. The sole member of Rocky
Mountain Holdings, LLC is Air Methods Corporation.[BN]
The Plaintiff is represented by:
Richard J. Burke, Esq.
Jamie Weiss, Esq.
Zachary A. Jacobs, Esq.
QUANTUM LEGAL, LLC
513 Central Avenue, Suite 300
Highland Park, IL 60035
Telephone: (847) 433-4500
Facsimile: (847) 433-2500
E-mail: richard@qulegal.com
jamie@qulegal.com
zach@qulegal.com
- and -
David A. Hughes, Esq.
Hillary V. Keller, Esq.
HARDIN & HUGHES, LLP
2121 14th Street
Tuscaloosa, AL 35401
Telephone: (205) 344-6690
Facsimile: (205) 344-6188
E-mail: dhughes@hardinhughes.com
hkeller@hardinhughes.com
ALJ REGIONAL: Bid to Remand Marshall Suit Underway
--------------------------------------------------
ALJ Regional Holdings, Inc. said in its Form 10-Q Report filed with
the Securities and Exchange Commission on February 11, 2019, for
the quarterly period ended December 31, 2018, that the motion to
remand the class action by Donna Marshall remains pending.
On July 31, 2017, plaintiff Donna Marshall ("Marshall"), filed a
proposed class action lawsuit in the Superior Court of the State of
California for the County of Sacramento against Faneuil and ALJ.
Marshall, a previously terminated Faneuil employee, alleges various
California state law employment-related claims against Faneuil.
Faneuil has answered the complaint and removed the matter to the
United States District Court for the Eastern District of
California; however, Marshall filed a motion to remand the case
back to state court.
The motion to remand has been fully briefed and argued and remains
pending before the court.
ALJ Regional said, "The case is in early discovery at this time.
Faneuil believes this action is without merit and intends to defend
it vigorously."
No further updates were provided in the Company's SEC report.
ALJ Regional Holdings, Inc. provides call center, back-office,
staffing, and toll collection services to government and commercial
clients in the healthcare, utility, consumer goods, toll, and
transportation industries in the United States. It operates through
three segments: Faneuil, Carpets, and Phoenix. The company was
formerly known as YouthStream Media Networks, Inc. and changed its
name to ALJ Regional Holdings, Inc. in October 2006. ALJ Regional
Holdings, Inc. was founded in 1995 and is based in New York, New
York.
AMC DETROIT: Cross et al Seek to Certify FLSA Collective Action
---------------------------------------------------------------
In the class action lawsuit MONIQUE CROSS and AMERICA THOMAS, on
behalf of themselves and all other persons similarly situated,
known and unknown, the Plaintiffs, vs. AMC DETROIT, INC., a
Michigan for-profit corporation, thev Defendant, Case No.
2:18-cv-11968-NGE-DRG (E.D. Mich.), the Plaintiffs, individually
and on behalf of all other workers similarly situated, ask the
Court for an order:
1. conditionally certifying a collective action for unpaid
wages
under section 216(b) of the Fair Labor Standards Act;
"all employees who worked at any time during the past three
years as bartenders at Defendant AMC Detroit's Buffalo Wild
Wings restaurant";
2. issuing the Plaintiffs' proposed order;
3. approving the proposed court-supervised notice to be sent to
the putative class members;
4. appointing the Law Offices of Bryan Yaldou, PLLC, as class
counsel;
5. requiring the Defendant to identify potential opt-in the
Plaintiffs by promptly providing the Plaintiffs with an
updated computer-readable data file containing contact
information for all potential opt-in the Plaintiffs within 10
days of entry of the order granting certification;
6. approving an opt-in period of 90 days;
7. allowing the Plaintiffs to send notice to similarly situated
individuals via e-mail in addition to regular mail; and
8. requiring the proposed Notice to be posted in Defendant's
workplaces (away from view of customers but in a common
place for its employees to view).
The Plaintiffs filed this action to challenge AMC Detroit, Inc.'s
practice and policy of not paying the statutorily mandated minimum
and overtime wages in violation of 29 U.S.C. sections 206,
207.[CC]
Attorneys for the Plaintiff:
Bryan Yaldou, Esq.
Elaina S. Bailey, Esq.
THE LAW OFFICES OF BRYAN YALDOU, PLLC
23000 Telegraph, Suite 5
Brownstown, MI 48134
Telephone: (734) 692-9200
Facsimile: (734) 692-9201
E-mail: bryan@yaldoulaw.com
Attorneys for the Defendant:
Andrey T. Tomkiw, Esq.
J. Travis Mihelick, Esq.
DINSMORE & SHOHL
900 Wilshire Drive, Suite 300
Troy, MI 48084
Telephone: (248) 647-6000
Facsimile: (248) 647-5210
E-mail: andrey.tomkiw@dinsmore.com
travis.mihelick@dinsmore.com
AMERICAN EXPRESS: June 2019 Trial in Anti-Steering Rules Suit
-------------------------------------------------------------
American Express Company said in its Form 10-K report filed with
the U.S. Securities and Exchange Commission on February 13, 2019,
for the fiscal year ended December 31, 2018, that trial has been
scheduled in the individual merchant cases for June 2019 in the
case entitled, In re: American Express Anti-Steering Rules
Antitrust Litigation (II).
Individual merchant cases and a putative merchant class action,
which were consolidated in 2011 and collectively captioned In re:
American Express Anti-Steering Rules Antitrust Litigation (II), are
pending in the Eastern District of New York against the company
alleging that provisions in the company's merchant agreements
prohibiting merchants from differentially surcharging the company's
cards or steering a customer to use another network's card or
another type of general-purpose card ("anti-steering" and
"non-discrimination" contractual provisions) violate U.S. antitrust
laws.
The individual merchant cases seek damages in unspecified amounts
and injunctive relief. Following the Supreme Court decision in Ohio
v. American Express Co. in favor of American Express, plaintiffs in
both the individual merchant cases and the putative merchant class
action filed amended complaints. Trial has been scheduled in the
individual merchant cases for June 2019.
American Express Company, together with its subsidiaries, provides
charge and credit payment card products, and travel-related
services to consumers and businesses worldwide. It operates through
three segments: Global Consumer Services Group, Global Commercial
Services, and Global Merchant and Network Services. American
Express Company was founded in 1850 and is headquartered in New
York, New York.
AMNJ ENTERPRISES: Burton Shortchanged on Delivery Reimbursements
----------------------------------------------------------------
Jacquelyn Burton, individually and on behalf of all others
similarly situated, Plaintiff, v. AMNJ Enterprises, Inc. and Joel
Burton, Defendants, Case No. 19-cv-00164, (E.D. Wisc., January 31,
2019), seeks to recover minimum wages, liquidated damages,
prejudgment and post-judgment interest, reasonable attorneys' fees
and costs of this action under the Fair Labor Standards Act and the
Wisconsin Minimum Wage Law.
Defendant operates Domino's Pizza franchise stores in Wisconsin.
Burton was employed by Defendants to deliver pizza. She used her
own vehicle to deliver pizzas and claims that the reimbursement
rates were unreasonably low thus causing their net wages to fall
below the federal minimum wage. [BN]
Plaintiff is represented by:
Matthew Haynie, Esq.
FORESTER HAYNIE PLLC
1701 N. Market Street, Suite 210
Dallas, Texas 75202
Tel: (214) 210-2100
Fax: (214) 346-5909
Email: matthew@foresterhaynie.com
- and -
J. Gerard Stranch, IV, Esq.
Joe P. Leniski, Jr., Esq.
BRANSTETTER, STRANCH & JENNINGS, PLLC
223 Rosa Parks Ave. Suite 200
Nashville, TN 37203
Telephone: (615) 254-8801
Facsimile: (615) 255-5419
Email: gerards@bsjfirm.com
joeyl@bsjfirm.com
APPLE INC: Maldonado Seeks to Certify Class of AppleCare Buyers
---------------------------------------------------------------
The Plaintiffs in the lawsuit styled VICKY MALDONADO AND JUSTIN
CARTER, individually and on behalf of themselves and all others
similarly situated v. APPLE INC., APPLECARE SERVICE COMPANY, INC.,
AND APPLE CSC, INC., Case No. 3:16-cv-04067-WHO (N.D. Cal.), seek
an order certifying this Class:
All individuals who purchased AppleCare or AppleCare+,
either directly or through the iPhone Upgrade Program, on or
after January 1, 2009, and received a remanufactured
replacement Device.
The Plaintiffs also move to appoint them as class representatives
and to appoint Steve Berman of Hagens Berman Sobol Shapiro LLP as
Lead Class Counsel for the proposed Class.
The case involves Apple Inc.'s alleged decision to breach its
promises to all consumers, who purchased AppleCare or AppleCare+
and who received a remanufactured device. The programs promised
all consumers that if their device is defective or becomes damaged,
they would receive a replacement device that is "new or equivalent
to new in performance and reliability," according to the Motion.
The Plaintiffs contend that Apple does not honor this promise.
The Court will commence a hearing on May 15, 2019, at 2:00 p.m., to
consider the Motion.[CC]
The Plaintiffs are represented by:
Steve W. Berman, Esq.
HAGENS BERMAN SOBOL SHAPIRO LLP
1301 Second Avenue, Suite 2000
Seattle, WA 98101
Telephone: (206) 623-7292
Facsimile: (206) 623-0594
E-mail: steve@hbsslaw.com
- and -
Robert B. Carey, Esq.
Michella A. Kras, Esq.
HAGENS BERMAN SOBOL SHAPIRO LLP
11 West Jefferson, Suite 1000
Phoenix, AZ 85003
Telephone: (602) 840-5900
Facsimile: (602) 840-3012
E-mail: rob@hbsslaw.com
michellak@hbsslaw.com
- and -
Shana E. Scarlett, Esq.
HAGENS BERMAN SOBOL SHAPIRO LLP
715 Hearst Avenue
Berkeley, CA 94710
Telephone: (510) 725-3000
Facsimile: (510) 725-3001
E-mail: shanas@hbsslaw.com
- and -
Renee F. Kennedy, Esq.
P.O. Box 2222
Friendswood, TX 77549
Telephone: (832) 428-1552
E-mail: kennedyrk22@gmail.com
ARLO: Faces Class Action Over Ultra 4K Camera Battery Failure
-------------------------------------------------------------
David Richards, writing for Channel News, reports that a US legal
firms is trying to get a class action up against the recently spun
out Arlo home security Company claiming the battery failure of
their new Ultra 4K camera has impacted investor.
Arlo which was spun out from Netgear recently suspended the roll
out of their new Ultra 4K camera's due to a technical issue which
the Company is confident can be fixed.
One US legal Company Levi & Korsinsky has already filed a complaint
that alleges that the Registration Statement filed by Arlo made
materially false and misleading statements and that the Company
failed to reveal that there was a battery flaw with the new Ultra
Camera system.
Levi & Korsinsky state in their claim that the quality issue
associated with the Ultra battery resulted in a shipping delay of
Arlo's Ultra products and that this impacted shareholders ahead of
the "crucial holiday season".
The lawyers claim that such a shipping delay endangered Arlo's
chances of launching the Ultra product and that shareholders should
have been told.
They further claim that the shipping delay allowed Arlo's
competitors to capitalize on the Ultra product's missed launch
however they fail to identify which competitors benefited or which
competitors actually had a competitive camera to the new Arlo 4K
Ultra offering.
A visit to the Best Buy and Lowes US web sites reveals that the
bulk of the 4K camera offerings are wired camera and the only
listing on the Best Buy site is a camera from unknown brand Lorex
who are offering a US $169 outdoor Wi Fi Camera.
Levi & Korsinsky claim that Arlo's consumers had been experiencing
battery drain issues and other battery-related issues in connection
with recent firmware updates.
They claim that because of these problems Arlo's fourth quarter
2018 results and consumer base would be negatively impacted
rendering Arlo's Registration Statement materially false.
Arlo Australia has not commented on the issue other than to say
that the roll out of the 4K camera has been delayed in Australia.
[GN]
ASTEC INDUSTRIES: Taylor Employees' Fund Hits Share Price Drop
--------------------------------------------------------------
City of Taylor General Employees Retirement System, individually
and on behalf of all others similarly situated, Plaintiff, vs.
Astec Industries, Inc., Benjamin G. Brock and David C. Silvious,
Defendants, Case No. 19-cv-00024, (E.D. Tenn., February 1, 2019),
seeks to recover damages caused by violations of the Securities
Exchange Act of 1934.
The City of Taylor General Employees Retirement System, which
purchased Astec stock, alleges that Astec failed to disclose that
its pellet plants suffered from significant and costly problems
that prevented them from running at their promised production
capacity. After closing at $47.27 per share on October 22, 2018,
Astec stock opened at $43.11 per share and continued falling to a
close of $35.51 per share on October 23, 2018, a decline of nearly
25%, on heavy trading volume of nearly 1.6 million shares traded.
On January 22, 2019, Astec announced that Benjamin Brock had
resigned as President and Chief Executive Officer.
Astec designs, engineers, manufactures, markets, and finances
equipment and components, including aggregate crushers, pavers,
asphalt plants, wood pellet plants, and related components.[BN]
Plaintiff is represented by:
Jerry E. Martin, Esq.
Christopher M. Wood
ROBBINS GELLER RUDMAN & DOWD LLP
414 Union Street, Suite 900
Nashville, TN 37219
Telephone: (615) 244-2203
Fax: (615) 252-3798
- and -
Robert J. Robbins, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
120 East Palmetto Park Road, Suite 500
Boca Raton, FL 33432
Telephone: (561) 750-3000
Fax: (561) 750-3364
- and -
Brian E. Cochran, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
655 West Broadway, Suite 1900
San Diego, CA 92101-8498
Telephone: (619) 231-1058
Fax: (619) 231-7423
- and -
Thomas C. Michaud, Esq.
VANOVERBEKE, MICHAUD & TIMMONY, P.C.
79 Alfred Street
Detroit, MI 48201
Telephone: (313) 578-1200
Fax: (313) 578-1201
BANK OF AMERICA: Faces Suit Over Sherman Act Violation
------------------------------------------------------
Beach Municipal Firefighters' Pension Trust Fund, individually and
on behalf of all others similarly situated v. Bank of America,
N.A., et al., Case No. 1:19-cv-01900 (S.D. N.Y., February 28,
2019), is brought against the Defendants for violation of the
Sherman Act from January 1, 2009 through April 27, 2014.
The Federal National Mortgage Association ("Fannie Mae") and
Federal Home Loan Mortgage Corporation ("Freddie Mac") were created
by Congress to perform an important role in the nation's housing
finance system, to provide liquidity, stability and affordability
to the mortgage market. They provide liquidity to the thousands of
banks, savings and loans, and mortgage companies that make loans to
finance housing. When operating in a transparent and efficient
market, Fannie Mae and Freddie Mac help stabilize mortgage markets
and protect housing during extraordinary periods when stress or
turmoil in the broader financial system threatens the economy. The
Plaintiff alleges that the Defendants, who are horizontal
competitors and the dominant dealers in the above-referenced
financial instruments and selected through this application
process, conspired to fix prices and restrain competition in the
market for unsecured bonds issued by Fannie Mae and Freddie Mac,
rather than maintain the requisite transparency.
The Plaintiff Deerfield Beach Municipal Firefighters' Pension Trust
Fund is a closed retirement plan that provides defined pension
benefits for the firefighters hired by the City of Deerfield Beach,
Florida, where it is located. It has approximately $120 million in
net assets. Throughout the Class Period, Plaintiff participated in
FFB transactions directly with one or more of the Defendants.
The Defendants are banks, savings and loans, and mortgage companies
that make loans to finance housing. [BN]
The Plaintiff is represented by:
Linda P. Nussbaum, Esq.
Bart D. Cohen, Esq.
Fred T. Isquith, Esq.
NUSSBAUM LAW GROUP, P.C.
1211 Avenue of the Americas, 40th Flr.
New York, NY 10036
Tel: (917) 438-9189
E-mail: lnussbaum@nussbaumpc.com
bcohen@nussbaumpc.com
fisquith@nussbaumpc.com
BANK OF AMERICA: Kaymark Appeals W.D. Pa. Orders to 3rd Circuit
---------------------------------------------------------------
Plaintiff Dale Kaymark and non-party Michael P. Malakoff seek
review of the District Court's January 22, 2019 order and its
February 7, 2019 order entered in the lawsuit titled Dale Kaymark
v. Bank of America NA, et al., Case No. 2-13-cv-00419, in the U.S.
District Court for the Western District of Pennsylvania.
The nature of suit is stated as other contract actions.
The appellate case is captioned as Dale Kaymark v. Bank of America
NA, et al., Case No. 19-1424, in the United States Court of Appeals
for the Third Circuit.
The Clerk of the Appellate Court rules neither District Court order
appears to be final within the meaning of 28 U.S.C. 1291 or
otherwise appealable at this time. Additionally, the notice of
appeal was not filed within thirty days of the January order.
The Clerk orders all parties to file written responses addressing
these issues, with a certificate of service attached, within 14
days from the date of this order.[BN]
Plaintiff-Appellant DALE KAYMARK, individually and on behalf of
other similarly situated current and former homeowners in
Pennsylvania, is represented by:
John C. Evans, Esq.
SPECTER SPECTER EVANS & MANOGUE PC
Koppers Building, 26th Floor
Pittsburgh, PA 15219
Telephone: (412) 642-2300
E-mail: Jce@ssem.com
Plaintiff-Appellant DALE KAYMARK and Not Party-Appellant MICHAEL P.
MALAKOFF are represented by:
Michael P. Malakoff, Esq.
MICHAEL P. MALAKOFF, PC
3214 Ladoga Street
Pittsburgh, PA 15204
Telephone: (412) 281-4217
E-mail: malakoff@mpmalakoff.com
Defendants-Appellees BANK OF AMERICA NA and UDREN LAW OFFICES PC
are represented by:
Jonathan J. Bart, Esq.
WILENTZ GOLDMAN & SPITZER PA
Two Penn Center Plaza, Suite 910
Philadelphia, PA 19102
Telephone: (215) 636-4466
E-mail: jbart@wilentz.com
Defendant-Appellee BANK OF AMERICA NA is represented by:
Andrew J. Soven, Esq.
REED SMITH LLP
1717 Arch Street
Three Logan Square, Suite 3100
Philadelphia, PA 19103
Telephone: (215) 851-8288
E-mail: asoven@reedsmith.com
Defendant-Appellee UDREN LAW OFFICES PC is represented by:
Daniel S. Bernheim, III, Esq.
WILENTZ GOLDMAN & SPITZER PA
Two Penn Center Plaza, Suite 910
Philadelphia, PA 19102
Telephone: (215) 636-4466
E-mail: dbernheim@wilentz.com
BANK OF NEW YORK: Bid to Certify Class in Royal Park Suit Denied
----------------------------------------------------------------
In the case, ROYAL PARK INVESTMENTS SA/NV Individually and on
Behalf of All Others Similarly Situated, Plaintiff, v. THE BANK OF
NEW YORK MELLON as Trustee, Defendant, Case No. 1:14-cv-6502-GHW
(S.D. N.Y.), Judge Gregory H. Woods of the U.S. District Court for
the Southern District of New York denied Royal Park's motion for
class certification.
Royal Park filed the action on behalf of itself and
similarly-situated investors against The Bank of New York Mellon
("BNYM"), the trustee of five residential mortgage-backed
securities in which Royal Park is an investor. Three of the
Covered Trusts are New York common law trusts, which are governed
by "Pooling and Servicing Agreements" ("PSAs"). The other two
Covered Trusts are qualified indenture trusts under the Trust
Indenture Act ("TIA") and are governed by trust indentures. BNYM's
purported failure to perform its duties as outlined in the PSAs and
trust indentures forms the basis of Royal Park's breach of contract
claims, which can be divided into two broad categories of
allegations.
First, Royal Park asserts that BNYM failed to fulfill certain
contractual duties triggered by BNYM's discovery of breaches of
representations and warranties. It also claims that BNYM breached
its contractual duties with respect to loan servicer or master
servicer "Events of Default."
Royal Park also asserts claims for breach of the duty of trust and,
with respect to the two qualified indenture trusts, for violations
of sections 315(b) and 315(c) of the TIA. It alleges that BNYM's
ongoing business relationships with loan originators, sellers,
sponsors, servicers, and master servicers created conflicts of
interest because BNYM did not want to risk losing those entities'
repeat business by enforcing remedies for R&W breaches or Events of
Default.
Royal Park now seeks to certify the following class to further
pursue its breach of contract, breach of duty of trust, and TIA
claims: All persons and entities who held Certificates in the
Covered Trusts at any time between the date of issuance to no later
than 60 days after notice of class certification and opportunity to
opt out is issued and were damaged as a result of The Bank of New
York Mellon's conduct alleged in the Complaint.
Because Judge Woods concludes that Royal Park has failed to
demonstrate that questions of law or fact common to the class
members predominate over individualized questions, he need not
consider whether the other requirements of Rule 23 have been
established. Accordingly, he denied Royal Park's motion for class
certification. The Clerk of Court is directed to terminate the
motion pending at Dkt. No. 150.
A full-text copy of the Court's Feb. 15, 2019 Memorandum Opinion
and Order is available at https://is.gd/Bi0VIr from Leagle.com.
Royal Park Investments SA/NV, Individually and on Behalf of All
Others Similarly Situated, Plaintiff, represented by Darryl J.
Alvarado -- dalvarado@rgrdlaw.com -- Robbins Geller Rudman & Dowd
LLP, Lucas F. Olts -- lolts@rgrdlaw.com -- Robbins Geller Rudman &
Dowd LLP, Samuel Howard Rudman -- SRudman@rgrdlaw.com -- Robbins
Geller Rudman & Dowd LLP, Arthur C. Leahy, Robbins Geller Rudman &
Dowd LLP, pro hac vice, Christopher M. Wood -- cwood@rgrdlaw.com --
Robbins Geller Rudman & Dowd LLP, Juan Carlos Sanchez --
jsanchez@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP & Steven
W. Pepich -- stevep@rgrdlaw.com -- Robbins Geller Rudman & Dowd
LLP, pro hac vice.
The Bank of New York Mellon, as Trustee, Defendant, represented by
Matthew D. Ingber -- mingber@mayerbrown.com -- Mayer Brown LLP,
Christopher James Houpt -- choupt@mayerbrown.com -- Mayer Brown
LLP, Jarman Douglas Russell -- jrussell@mayerbrown.com -- Mayer
Brown LLP, Jennifer Marie Rosa -- jrosa@mayerbrown.com -- Mayer
Brown LLP, Mark Hanchet -- mhanchet@mayerbrown.com -- Mayer Brown
LLP, Michael Evan Rayfield -- mrayfield@mayerbrown.com -- Mayer
Brown LLP, Tyler J. Kandel -- tkandel@emmetmarvin.com -- Emmet,
Marvin & Martin, LLP & Virginia Catherine Palitz --
vpalitz@mayerbrown.com -- Mayer Brown LLP.
BIG FISH: Faces Class Action in Washington Over "Virtual Chips"
---------------------------------------------------------------
Nick Toscano, writing for Sydney Morning Herald, reports that
gaming giant Aristocrat could be on the hook for damages after the
Big Fish digital gaming arm it bought for $1.3 billion was targeted
in an American class action over its issuing of "virtual chips".
Aristocrat, a $15 billion gaming giant listed on the Australian
stock market, on Feb. 19 confirmed the lawsuit had been filed in
the US District Court for the Western District of Washington
against Big Fish Games, a Seattle-based online casino games
developer acquired by the business last year.
The case comes after another court, the US Court of Appeals for the
Ninth Circuit ruled, several months after the acquisition, that Big
Fish's "free-to-play" online games -- including virtual blackjack,
poker and slot machines -- constituted illegal gambling in the
state of Washington.
Online gaming is outlawed in many US states, and a key question has
been whether Big Fish's virtual "chips" have any monetary value.
Big Fish's games used the virtual chips, which could not be
exchanged for cash, but if users ran out of virtual chips, they
needed to buy more to continue playing the game.
Prices for the chips ranged from $1.99 to nearly $250, which led
the court to determine that the chips fell within the definition of
a "thing of value".
"The proliferation of internet connected mobile devices has led ot
the growth of what are known in the industry as 'free to play'
video games," the class action claim says.
"This terms is a misnomer. It refers to a model by which the
initial download of the game is free but companies reap huge
profits by selling thousands of in-app items."
The claim says the model had become particularly attractive to
developers of games of chance such as poker and slot machines.
Aristocrat and Big Fish's former parent company, Churchill Downs,
dispute the ruling and are continuing to work together to
"vigorously defend the action".
The new class action lawsuit is being led by Manasa Thimmegowda, a
former player of Big Fish Casino who began playing on her iPhone in
2017 and, within a month, had lost more than $3000 after "regularly
paying real money to purchase virtual chips", court documents
claim.
"By operating Big Fish Casino and other similar online gambling
games, defendants have violated Washington law and illegally
profited from tens of thousands of customers,' the document says.
"Accordingly, [the] plaintiff, on behalf of herself and a class of
similarly situated individuals, brings this lawsuit to recover her
losses and to obtain the appropriate relief".
In a statement on Feb. 19, Aristocrat said neither the company nor
Big Fish had yet been served with the lawsuit.
"However, Aristocrat understands that the Plaintiff alleges that
certain games Big Fish Games offers for play are games of chance
that are prohibited by Washington law"," the company said.
"Aristocrat intends to vigorously defend the action."
Aristocrat intends to vigorously defend the action.
Company statement
The class action is being led by Seattle-based legal firm Tousley
Brain Stephens, which has previously led similar lawsuits against
providers of "free-to-play" online games.
Aristocrat's core business has traditionally been manufacturing
poker machines for casinos, pubs and clubs.
But the company has notably upped its bet on the booming online
social gaming market in recent years and acquired a number of
online developers, including Big Fish Games with its catalogue of
several hugely popular mobile and desktop games, played by more
than 12.4 million active users every month.
Among its gaming titles are Big Fish Casino, Gummy Drop! and
Fairway Solitaire.
The Big Fish Games acquisition doubled the size of Aristocrat's
fast-growing digital arm, which now accounts for 38 per cent of its
revenue. [GN]
BLACKROCK INSTITUTIONAL: Court Modifies Baird ERISA Case Schedule
-----------------------------------------------------------------
In the case, Charles Baird, et al., Plaintiffs, v. BlackRock
Institutional Trust Company, N.A., et al., Defendants, Case No.
4:17-cv-01892-HSG (N.D. Cal.), Judge Haywood S. Gilliam, Jr. of the
U.S. District Court for the Northern District of California,
Oakland Division, has entered a stipulated order modifying the case
schedule.
On June 18, 2018, the Court entered a stipulated order modifying
the case schedule by setting, among other dates, the close of fact
discovery on Sept. 21, 2018; the close of expert discovery on class
certification issues on Dec. 21, 2018; and the completion of
briefing on the Plaintiffs' motion for class certification on March
14, 2019.
On Aug. 27, 2018, with leave of Court, the Plaintiffs filed a
Second Amended Class Action Complaint, naming additional
Defendants, including Mercer.
On Sept. 17, 2018, the Parties filed a stipulation seeking to
modify the case schedule.
After holding a telephonic conference on Sept. 25, 2018, the Court
granted in part the Parties' proposed modifications to the case
schedule, setting, among other dates, the close of fact discovery
on Dec. 21, 2018; the close of expert discovery on class
certification issues on Feb. 28, 2019; and the completion of
briefing on the Plaintiffs' class certification motion on May 14,
2019.
On Dec. 10, 2018, the Court granted the Parties' Stipulation to
Modify the Case Schedule, setting, among other dates, the close of
fact discovery on Feb. 4, 2019; the close of expert discovery on
class certification issues on April 16, 2019; the completion of
briefing on the Plaintiffs' class certification motion on June 28,
2019; and the hearing on the Plaintiffs' class certification motion
on July 25, 2019.
On Jan. 31, 2019, the Court granted the Parties' further
Stipulation to Modify the Case Schedule, in which the Parties
proposed a roughly two-week extension of most case deadlines to
allow them to resolve certain disputes without motion practice and
to reschedule certain remaining depositions. The Court set, among
other deadlines, the close of fact discovery on Feb. 19, 2019; the
close of expert discovery on class certification issues on April
30, 2019; the completion of briefing on the Plaintiffs' class
certification motion on July 11, 2019; and the hearing on the
Plaintiffs' class certification motion on Aug. 1, 2019.
BlackRock has agreed to provide 90 minutes of corporate testimony
on two topics -- topics (v) and (w) -- identified in the
Plaintiffs' Rule 30(b)(6) deposition notice to BlackRock. On Jan.
30, 2019, Magistrate Judge Westmore authorized an additional two
hours of additional corporate testimony on three other topics --
topics (n), (p), and (r) -- identified in the Plaintiffs' Rule
30(b)(6) deposition notice. BlackRock's corporate representative
on topics (n), (p), and (r) is available for deposition on Feb. 27,
2019, and BlackRock's corporate representative on topics (v) and
(w) is available for deposition on March 6, 2019.
Mercer recently was forced to reschedule its Rule 30(b)(6)
deposition that had been scheduled for Feb. 14, 2019, as a result
of inclement weather affecting both New York City and the greater
northeast area that resulted in flight cancellations and prevented
Mercer's outside counsel who would be defending the deposition from
traveling to New York from Tuesday, February 12 through the date of
the deposition, Feb. 14, 2019.
As a result of the aforementioned scheduling difficulties, Mercer
and the Plaintiffs conferred and have agreed to reschedule Mercer's
Rule 30(b)(6) deposition for Feb. 28, 2019, while another Mercer
witness remains scheduled for a Rule 30(b)(1) individual deposition
on Feb. 21, 2019.
While the Parties are able to accommodate these Rule 30(b)(6)
depositions on Feb. 27, Feb. 28, and March 6, 2019, to do so would
require a modest adjustment to the case management schedule because
BlackRock's and Mercer's corporate testimony should be completed
with sufficient time for expert review of any evidence that may be
relevant to the opinions they would express in the class
certification expert reports, due on March 15, 2019 under the
current schedule.
Due to the unforeseen events set forth, the available dates for
BlackRock's and Mercer's corporate testimony are up to two weeks
after the current close of fact discovery on Feb. 19, 2019, which
would not provide sufficient time for expert review of any evidence
that may be relevant to the opinions they would express in the
class certification expert reports currently due on March 15,
2019.
The Plaintiffs and BlackRock continue to meet and confer about
certain outstanding discovery disputes and expect to file
additional joint discovery letters with Magistrate Judge Westmore
during the week of Feb. 18, 2019. The Plaintiffs and Mercer had
not engaged in any substantive discovery at the time Mercer was
added as a party in late August 2018, but have since worked
diligently in their respective discovery efforts. The Plaintiffs
have issued, and Mercer has responded to, 11 requests for the
production of documents; 16 interrogatories; and 41 requests for
admission. Mercer also has collected a significant amount of data
and documents from several Mercer custodians; has reviewed those
materials to respond to Plaintiffs' document requests; has already
made two productions totaling almost 60,000 pages of documents; and
will be making at least one further production of documents in the
near future.
The Plaintiffs and Mercer have held several additional
meet-and-confers concerning the parameters of Mercer's production,
such as search terms, custodians, and the applicable date ranges,
as well as the scope of the Plaintiffs' document requests, and the
Plaintiffs and Mercer have been negotiating in good faith and
believe they have now reached final compromises with respect to the
outstanding issues between them, but they require additional time
to implement those compromises by producing certain documents
and/or responses to amended written discovery.
On Jan. 22, 2019, the Plaintiffs sought to meet and confer
concerning Mercer's objections and responses to certain of the
Plaintiffs' Requests for Admission and Interrogatories; Mercer and
the Plaintiffs met and conferred about this issue and others on
Feb. 5 and Feb. 7, 2019; the Plaintiffs agreed to serve amended
versions of the written discovery in question, which they did on
Feb. 7, 2019; Mercer agreed consider and respond to the Plaintiffs'
amended written discovery on an expedited basis, if possible, by
Feb. 21, 2019, and Mercer currently is in the process of doing so;
and absent the modest extension proposed by the Stipulation, the
Plaintiffs may be compelled to engage in motion practice before the
Court to preserve their positions, when such disputes could be
avoided by Mercer's forthcoming written responses and/or if the
Parties had additional time to resolve them.
Mercer and the Plaintiffs believe the parties and the Court would
benefit from (1) avoiding potentially unnecessary discovery
disputes before the Court, when they believe in good faith that
they may resolve these issues if given the benefit of more time,
and/or (2) allowing the depositions of Mercer witnesses to occur
after documents are fully produced to avoid the risk that Mercer
would be forced to present those witnesses for a second day of
deposition.
Mercer and the Plaintiffs are cognizant of the fact that they have
sought multiple modifications of the case schedule, are
appreciative of the Court's scheduling flexibility, and at this
time intend for the current proposed extension to be the final one
they seek; and Mercer and the Plaintiffs further believe the
incremental and modest length of each requested extension arises
from, and reflects, the fact that they have continued to work
together in good faith to resolve discovery-related disputes
without motion practice, combined with two unfortunate, unforeseen
scheduling issues with respect to Mercer's depositions, rather than
suggesting any attempt or effort to unduly delay these
proceedings.
The Parties propose a modest extension of the existing case
schedule by approximately fourteen days, including modification.
They agree there is good cause for a modest extension of the
existing case schedule by approximately 14 days, and an extension
of the hearing on the motion for class certification by seven days,
to allow all Parties sufficient time to complete fact discovery and
proceed with expert discovery related to class certification.
he Parties further agree that, should the Court grant an extension
on the case schedule, they will not issue any further written
discovery requests on one another (excepting additional discovery
between the Plaintiffs and BlackRock that may be granted by the
Court in the resolution of currently-pending or forthcoming
discovery disputes).
The Plaintiffs will not seek to depose any current or former
Blackrock or Mercer employee, other than those depositions the
Parties have already noticed and/or scheduled, prior to the class
certification hearing. No party will seek to depose any members of
either putative class prior to the class certification hearing.
The Parties therefore stipulated and agreed, and Judge Gilliam
granted, on the following case schedule:
a. Close of Fact Discovery: Feb. 19, 2019 moved to March 6,
2019
b. Opening expert reports on class cert. issues: March 15,
2019 moved to March 27, 2019
c. Rebuttal expert reports on class cert. issues: April 16,
2019 moved to April 24, 2019
d. Close of expert discovery on class cert. issues: April 30,
2019 moved to May 8, 2019
e. Motion for class certification: May 21, 2019 moved to June
3, 2019
f. Opposition to class certification motion: June 20, 2019
moved to July 3, 2019
g. Reply in support of class certification motion: July 11,
2019 moved to July 25, 2019
h. Class Certification Hearing: Aug. 1, 2019 at 2:00 p.m.
moved to Aug. 8, 2019 at 2:00 p.m.
All parties will comply with the provisions.
A full-text copy of the Court's Feb 19, 2019 Order is available at
https://is.gd/VLQ9z5 from Leagle.com.
Charles Baird, individually, and on behalf of all others similarly
situated, and on behalf of the BlackRock Retirement Savings Plan,
Plaintiff, represented by Nina Rachel Wasow --
nina@feinbergjackson.com -- Feinberg, Jackson, Worthman & Wasow
LLP, Daniel Ryan Sutter -- dsutter@cohenmilstein.com -- Cohen
Milstein Sellers and Toll, PLLC, pro hac vice, Julia Horwitz --
jhorwitz@cohenmilstein.com -- Cohen Milstein Sellers Toll, Julie S.
Selesnick -- jselesnick@cohenmilstein.com -- Cohen Milstein Sellers
& Toll, PLLC, Karen L. Handorf -- khandorf@cohenmilstein.com --
Cohen Milstein Sellers and Toll PLLC, pro hac vice, Mary Joanne
Bortscheller -- mbortscheller@cohenmilstein.com -- Cohen Milstein
Sellers Toll PLLC, Michelle C. Yau -- myau@cohenmilstein.com --
Cohen Milstein Sellers & Toll PLLC, pro hac vice & Todd F. Jackson
-- todd@feinbergjackson.com -- Feinberg, Jackson, Worthman and
Wasow LLP.
Lauren Slayton, Plaintiff, represented by Michelle C. Yau, Cohen
Milstein Sellers & Toll PLLC, Nina Rachel Wasow, Feinberg, Jackson,
Worthman & Wasow LLP, Daniel Ryan Sutter, Cohen Milstein Sellers
and Toll, PLLC, pro hac vice, Julia Horwitz, Cohen Milstein Sellers
Toll & Mary Joanne Bortscheller, Cohen Milstein Sellers Toll PLLC.
BlackRock Institutional Trust Company, N.A., Blackrock, Inc., The
BlackRock, Inc. Retirement Committee & The Investment Committee of
the Retirement Committee, Defendants, represented by Brian David
Boyle -- bboyle@omm.com -- O'Melveny Myers LLP, Adam Manes Kaplan
-- akaplan@omm.com -- O'Melveny & Myers LLP, Meaghan McLaine VerGow
-- mvergow@omm.com -- OMelveny and Myers LLP, Michael John McCarthy
-- mmccarthy@omm.com -- O'Melveny & Myers LLP & Randall W. Edwards
-- redwards@omm.com -- O'Melveny & Myers LLP.
Catherine Bolz, Chip Castille, Paige Dickow, Daniel A. Dunay,
Jeffrey A. Smith, Anne Ackerley, Nancy Everett, Joseph Feliciani,
Jr., Ann Marie Petach, Michael Fredericks, Corin Frost, Daniel
Gamba, Kevin Holt, Chris Jones, Philippe Matsumoto, John Perlowski,
Andy Phillips, Kurt Schansinger & Tom Skrobe, Defendants,
represented by Brian David Boyle, O'Melveny Myers LLP, Randall W.
Edwards, O'Melveny & Myers LLP, Meaghan McLaine VerGow, OMelveny
and Myers LLP & Michael John McCarthy, O'Melveny & Myers LLP.
Amy Engel, Management Development & Compensation Committee of the
BlackRock, Inc. Board of Directors, Kathleen Nedl, Marc Comerchero,
Joel Davies, John Davis, Milan Lint & Laraine McKinnon, Defendants,
represented by Brian David Boyle, O'Melveny Myers LLP, Randall W.
Edwards, O'Melveny & Myers LLP, Meaghan McLaine VerGow, OMelveny
and Myers LLP & Michael John McCarthy, O'Melveny & Myers LLP.
Mercer Investment Consulting, Defendant, represented by Brian
Thomas Ortelere, Morgan Lewis Bockius LLP, pro hac vice, Matthew
Allen Russell, Morgan, Lewis and Bockius LLP, pro hac vice &
Spencer H. Wan, Morgan Lewis and Bockius LLP.
BOARDWALK PIPELINE: Substitute Complaint Filed in Mischal & Berger
------------------------------------------------------------------
Boardwalk Pipeline Partners, LP said in its Form 10-K report filed
with the U.S. Securities and Exchange Commission on February 13,
2019, for the fiscal year ended December 31, 2018, that a
substitute verified class action complaint was filed in the class
action suit initiated by Tsemach Mishal and Paul Berger.
On May 25, 2018, plaintiffs Tsemach Mishal and Paul Berger (on
behalf of themselves and the purported class, Plaintiffs) initiated
a purported class action in the Court of Chancery of the State of
Delaware (the Court) against the following defendants: the
Partnership, Boardwalk GP, Boardwalk GP, LLC and BPHC (together,
Defendants), regarding the potential exercise by Boardwalk GP of
its Purchase Right.
On June 25, 2018, Plaintiffs and Defendants entered into a
Stipulation and Agreement of Compromise and Settlement, subject to
the approval of the Court (the Proposed Settlement). Under the
terms of the Proposed Settlement, the lawsuit would be dismissed,
and related claims against the Defendants would be released by the
Plaintiffs, if BPHC, the sole member of the general partner of
Boardwalk GP, elected to cause Boardwalk GP to exercise its right
to purchase the issued and outstanding common units of the
Partnership for a cash purchase price, as determined by the Limited
Partnership Agreement, and gave notice of such election as provided
in the Limited Partnership Agreement within a period specified by
the Proposed Settlement.
On June 29, 2018, Boardwalk GP elected to exercise the Purchase
Right and gave notice within the period specified by the Proposed
Settlement. On July 18, 2018, Boardwalk GP completed the purchase
of the Transaction Units pursuant to the Purchase Right.
On September 28, 2018, the Court denied approval of the Proposed
Settlement. On February 11, 2019, a substitute verified class
action complaint was filed in this proceeding. The Partnership is
evaluating its response to this new complaint.
Boardwalk Pipeline Partners, LP, through its subsidiaries, owns and
operates integrated natural gas and natural gas liquids and other
hydrocarbons (NGLs) pipeline and storage systems in the United
States. Boardwalk Pipeline Partners, LP was founded in 2005 and is
headquartered in Houston, Texas. Boardwalk Pipeline Partners, LP is
a subsidiary of Boardwalk Pipelines Holding Corp.
BRIXMOR PROPERTY: $19.5MM Settlement Balance Remains in Escrow
--------------------------------------------------------------
Brixmor Property Group, Inc. said in its Form 10-K report filed
with the U.S. Securities and Exchange Commission on February 11,
2019, for the fiscal year ended December 31, 2018, that a
settlement balance of $19.5 million remains in escrow pending final
class distribution in the case by Westchester Putnam Counties Heavy
& Highway Laborers Local 60 Benefit Funds.
On December 13, 2017, the United States District Court for the
Southern District of New York granted final approval of the
settlement of the previously disclosed putative securities class
action complaint filed in March 2016 by the Westchester Putnam
Counties Heavy & Highway Laborers Local 60 Benefit Funds related to
the review conducted by the Audit Committee of the Board of
Directors.
Pursuant to the approved settlement, without any admission of
liability, the Company will pay $28.0 million to settle the claims.
This amount is within the coverage amount of the Company's
applicable insurance policies and has been funded into escrow by
the insurance carriers.
The settlement provides for the release of, among others, the
Company, its subsidiaries, and their respective current and former
officers, directors and employees from the claims that were or
could have been asserted in the class action litigation.
During the year ended December 31, 2018, $8.5 million of the
settlement amount was released from escrow per the court approved
settlement agreement for the payment of plaintiff's legal fees. The
remaining settlement balance of $19.5 million remains in escrow
pending final class distribution.
As of December 31, 2018, the $19.5 million amount is included in
Accounts payable, accrued expenses and other liabilities in the
Company's Consolidated Balance Sheets.
Brixmor Property said, "Because the settlement amount is within the
coverage amount of the Company's applicable insurance policies, the
Company accrued a receivable of $19.5 million as of December 31,
2018. This amount is included in Accounts receivable, net in the
Company's Consolidated Balance Sheets.
No further updates were provided in the Company's SEC report.
Brixmor Property Group, Inc. operates as a real estate investment
trust. The Company owns and operates grocery-anchored community and
neighborhood shopping centers. Brixmor Property Group serves
customers in the United States.
BROOKDALE SENIOR: Seeks 9th Cir. Review of Ruling in Stiner Suit
----------------------------------------------------------------
Defendants Brookdale Senior Living Communities, Inc. and Brookdale
Senior Living, Inc., filed an appeal from a Court ruling in the
lawsuit titled Stacia Stiner, et al. v. Brookdale Senior Living,
Inc., et al., Case No. 4:17-cv-03962-HSG, in the U.S. District
Court for the Northern District of California, Oakland.
As previously reported in the Class Action Reporter on Feb. 18,
2019, Judge Haywood S. Gilliam, Jr., (i) denied the Defendants'
motion to compel arbitration and motion to strike in their
entirety; and (ii) granted the Defendants' motion to dismiss with
leave to amend as to the Plaintiffs' retaliation claims, except
with respect to the letters sent by Bernie Jestrebek-Hart.
On July 13, 2017, Plaintiffs Patricia and Christopher Eidler,
Stiner, Mary-Catherine Jones, and Helen Carlson filed the action
against the Defendants for violations of the Americans with
Disabilities Act of 1990 ("ADA"), the Unruh Civil Rights Act, the
Consumer Legal Remedies Act ("CLRA"), California Business and
Professions Code Sections 7200 et seq. ("UCL"), and California
Welfare and Institutions Code Section 15610.3. They allege that
the Defendants' assisted living facilities are not accessible by
persons with disabilities, and that the Defendants' policies
prevent persons with disabilities from fully accessing and enjoying
their facilities. The Plaintiffs additionally allege that the
Defendants misrepresent the quality of care at their facilities, in
violation of California law.
The appellate case is captioned as Stacia Stiner, et al. v.
Brookdale Senior Living, Inc., et al., Case No. 19-15334, in the
United States Court of Appeals for the Ninth Circuit.
The briefing schedule in the Appellate Case is set as follows:
-- Transcript must be ordered by March 27, 2019;
-- Transcript is due on April 26, 2019;
-- Appellants Brookdale Senior Living Communities, Inc. and
Brookdale Senior Living, Inc.'s opening brief is due on
June 5, 2019;
-- Appellees Jeanette Algarme, Edward Boris, Helen Carlson,
Joan Carlson, Heather Fisher, Bernie Jestrabek-Hart, Arthur
Lindstrom, Patricia Lindstrom, Michele Lytle, Lawrence
Quinlan, Ralph Schmidt, Stacia Stiner and Loresia
Vallette's answering brief is due on July 5, 2019; and
-- Appellant's optional reply brief is due 21 days after
service of the answering brief.[BN]
Plaintiffs-Appellees STACIA STINER, et al., are represented by:
Benjamin Joseph Bien-Kahn, Esq.
Gay Crosthwait Grunfeld, Esq.
ROSEN BIEN GALVAN & GRUNFELD, LLP
101 Mission Street, Sixth Floor
San Francisco, CA 94105-1738
Telephone: (415) 433-6830
E-mail: bbien-kahn@rbgg.com
ggrunfeld@rbgg.com
- and -
Guy B. Wallace, Esq.
SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP
2000 Powell Street, Suite 1400
Emeryville, CA 94608
Telephone: (415) 421-7100
E-mail: wallace@schneiderwallace.com
Defendants-Appellants BROOKDALE SENIOR LIVING, INC., and BROOKDALE
SENIOR LIVING COMMUNITIES, INC., are represented by:
Jeffrey Barker, Esq.
O'MELVENY & MYERS LLP
1999 Avenue of the Stars, 8th Floor
Los Angeles, CA 90067
Telephone: (310) 553-6700
E-mail: jbarker@omm.com
- and -
Mallory Jensen, Esq.
Adam P. KohSweeney, Esq.
Matthew David Powers, Esq.
O'MELVENY & MYERS LLP
Two Embarcadero Center, 28th Floor
San Francisco, CA 94111
Telephone: (415) 984-8700
E-mail: mjensen@omm.com
akohsweeney@omm.com
mpowers@omm.com
BRYANT HEATING: Vullings Suit Over Defective Furnace Dismissed
--------------------------------------------------------------
In the case, MICHELLE W. VULLINGS, individually and on behalf of
all others similarly situated, Plaintiff, v. BRYANT HEATING AND
COOLING SYSTEMS, CARRIER CORPORATION, and UNITED TECHNOLOGIES
CORPORATION, Defendants, Civil Action No. 18-3317 (E.D. Pa.), Judge
Gerald Austin McHugh of the U.S. District Court for the Eastern
District of Pennsylvania granted the Defendants' Motion to Dismiss
is granted as to all counts.
In 2005, the Plaintiff purchased a Bryant Evolution System Plus 90i
furnace, which the Defendants manufactured. He alleges that the
system is predisposed to premature performance degradation and/or
complete and total failure within the express and/or implied
warranty period caused by defective design and manufacture
including but not limited to the use of a sub-standard faulty
control board. The purported defects in the control board include
soldering points that failed prematurely and caused error codes and
the shutdown of the system.
The Plaintiff further claims that the Defendants knew of the
control board defects. The Complaint cites a 2010 "DIY Chatroom"
post about another product in the Bryant Plus 90 series in support
of the assertion that consumers, contractors, and distributors
alerted Defendants to the control board problems early in the
manufacture and installation processes. The Complaint includes a
number of assertions that the Defendants knew of the defects but
continued to market the systems as reliable and sell them to
customers who believed them to be of adequate quality.
With respect to the system she purchased, the Plaintiff alleges
that she had to have the control board replaced three times during
12 seasons of use beginning as early as a few years from purchase.
The most recent failure occurred in early 2018. Each time,
licensed HVAC repairmen purportedly notified the Defendants of a
malfunctioning control board and ordered a replacement at the
Plaintiff's cost. The Plaintiff also alleges that the system often
failed to change from one stage to another, causing exorbitant
energy costs, and that she spent thousands of dollars on repairs
and testing for deficiencies. In 2018, the Plaintiff had the
furnace replaced.
The main and most expensive component of the furnace, the heat
exchanger, had a lifetime limited warranty. A more limited warranty
applied to the overall system.
The Defendants' Motion to Dismiss. They first move to dismiss as
untimely the Plaintiff's federal and state law breach of warranty
claims. The Plaintiff has alleged breach of express and implied
warranties under the federal Magnuson-Moss Warranty Act (Count I),
as well as breach of express warranty and breach of the implied
warranty of merchantability under Pennsylvania law (Counts IV and
V).
Judge Austin finds the breach of warranty claims time-barred and
will dismiss Counts I, IV, and V with prejudice. Because the
Plaintiff purchased the system in 2005, that would mean the
warranty extended no later than 2010, and even if the discovery
rule applied, the statute of limitations would have expired by 2014
at the latest. He, therefore, agrees with the Defendant that the
warranty ended in 2010, and the latest possible expiration of the
statute of limitations was in 2014. Because the Plaintiff did not
file the Complaint until four years later, the claims are
time-barred.
In addition, the only facts offered in support of that knowledge
involve unspecified complaints from customers and contractors, but
the Plaintiff does not even allege that the complaints were made
before the Plaintiff purchased the system. The Plaintiff has
therefore not alleged substantive unconscionability. Even if she
had sufficiently alleged substantive unconscionability, the
Plaintiff fails to advance adequate facts for procedural
unconscionability.
The unjust enrichment claim (Count III) is time-barred as well, the
Judge holds. The Defendant received the benefit of the Plaintiff's
purchase at the time of purchase in 2005. The statute of
limitations therefore expired in 2009. Because the Plaintiff did
not raise this claim until 2018, the Judge finds that it is
untimely.
The claims that remain are the Plaintiff's Fraud (Count VII),
Unfair Trade Practices and Consumer Protection Law ("UTPCPL")
(Count II), and Negligent Misrepresentation (Count VI) claims.
Because he finds that the Plaintiff has not pled the claims with
sufficient specificity, he will dismiss all three.
For the foregoing reasons, Judge McHugh granted the Defendants'
Motion to Dismiss as to all counts. He dismissed Counts I, III,
IV, and V with prejudice. He's obligated to dismiss Counts II, VI,
and VII without prejudice, but the counsel would be well-advised
not to replead such claims without a solid factual basis.
A full-text copy of the Court's Feb 19, 2019 Memorandum is
available at https://is.gd/1J0RjT from Leagle.com.
MICHELLE W. VULLINGS, individually and on behalf of all others
similarly situated, Plaintiff, represented by BRENT F. VULLINGS,
VULLINGS LAW GROUP LLC.
BRYANT HEATING AND COOLING SYSTEMS, CARRIER CORPORATION & UNITED
TECHNOLOGIES CORPORATION, Defendants, represented by DANIEL A.
BRESS -- daniel.bress@kirkland.com -- KIRKLAND & ELLIS, DEVIN S.
ANDERSON -- devin.anderson@kirkland.com -- KIRKLAND & ELLIS LLP &
KIMBERLEY J. WOODIE -- kjwoodie@mdwcg.com -- MARSHALL, DENNEHEY,
WARNER, ET AL..
CALIFORNIA: I.N. Seeks Certification of Medi-Cal Recipients Class
-----------------------------------------------------------------
The Plaintiffs in the lawsuit titled I. N., a minor, by and through
her mother and Guardian ad Litem, Zarinah F.; J. B., a minor by and
through his mother and Guardian ad Litem, Alisa B. v. JENNIFER
KENT, Director of the Department of Health Care Services; State of
California DEPARTMENT OF HEALTH CARE SERVICES, Case No.
3:18-cv-03099-WHA (N.D. Cal.), seek certification of this
Settlement Class:
All Medi-Cal beneficiaries who are EPSDT eligible and for
whom Medi-Cal Private Duty Nursing services have been
approved.
The Plaintiffs also ask the Court to appoint them as class
representatives, and to appoint William Leiner, Esq., and Elissa
Gershon, Esq., of Disability Rights California; Sarah Somers, Esq.,
and Jane Perkins, Esq., of the National Health Law Program; Robert
Newman, Esq., of the Western Center on Law and Poverty; and Richard
Schwartz, Esq., of Browne George Ross LLP as Class Counsel.
Plaintiffs I.N., age 8, and J.B., age 6, are Medi-Cal
beneficiaries, who are eligible for Early and Periodic Screening,
Diagnostic, and Treatment (hereafter, "EPSDT") services. EPSDT
provides comprehensive, preventative, diagnostic, and treatment
services to Medi-Cal eligible children under the age of 21. One
such treatment available under EPSDT is Private Duty Nursing
services -- nursing services provided in a child's home by a
registered nurse or licensed vocational nurse for beneficiaries,
who require more individual and continuous care than is available
from a visiting nurse or routinely provided by the nursing staff of
the hospital or skilled nursing facility.
Both I.N. and J.B. have significant medical needs, and have been
approved by Medi-Cal to receive Private Duty Nursing services to
live safely at home with their families. However, Plaintiffs have
rarely received all of their approved Private Duty Nursing hours,
the Plaintiffs allege. The Plaintiffs, accordingly, brought this
class action lawsuit to challenge the failure by the Department of
Health Care Services and its Director, Jennifer Kent to arrange for
approved Private Duty Nursing services for themselves and other
similarly situated children, as required by the Medicaid Act, the
Americans with Disabilities Act, and the Rehabilitation Act.
The Court will commence a hearing on April 4, 2019, at 8:00 a.m.,
to consider the Motion.[CC]
The Plaintiffs are represented by:
William Leiner, Esq.
Salma E. Enan, Esq.
Elissa Gershon, Esq.
DISABILITY RIGHTS CALIFORNIA
1330 Broadway, Suite 500
Oakland, CA 94612
Telephone: (510) 267-1200
Facsimile: (510) 267-1201
E-mail: william.leiner@disabilityrightsca.org
salma.enan@disabilityrightsca.org
elissa.gershon@disabilityrightsca.org
- and -
Sarah Somers, Esq.
Martha Jane Perkins, Esq.
NATIONAL HEALTH LAW PROGRAM
200 N. Greensboro Street, Suite D-13
Carrboro, NC 27510
Telephone: (919) 968-6308
Facsimile: (919) 968-8855
E-mail: somers@healthlaw.org
perkins@healthlaw.org
- and -
Maria del Pilar Gonzalez Morales, Esq.
Maria Iriarte, Esq.
DISABILITY RIGHTS CALIFORNIA
1111 Sixth Avenue, Suite 200
San Diego, CA 92104
Telephone: (619) 239-7861
Facsimile: (619) 239-7906
E-mail: pilar.gonzalez@disabilityrightsca.org
maria.iriarte@disabilityrightsca.org
- and -
Allen L. Lanstra, Esq.
Rachael Schiffman, Esq.
300 S. Grand Avenue, Suite 3400
Los Angeles, CA 90071
Telephone: (213) 687-5000
Facsimile: (213) 687-5600
E-mail: allen.lanstra@probonolaw.com
rachael.schiffman@probonolaw.com
- and -
Robert D. Newman, Esq.
Mona Tawatao, Esq.
WESTERN CENTER ON LAW AND POVERTY
3701 Wilshire Boulevard, Suite 208
Los Angeles, CA 90010-2826
Telephone: (213) 487-7211
Facsimile: (213) 487-0242
E-mail: rnewman@wclp.org
mtawatao@wclp.org
- and -
Richard A. Schwartz, Esq.
BROWNE GEORGE ROSS LLP
2121 Avenue of the Stars, Suite 2800
Los Angeles, CA 90067
Telephone: (310) 274-7100
Facsimile: (310) 275-5697
E-mail: rschwartz@bgrfirm.com
CANADA: Class Action Mulled Over Deadly RHVP Crashes
----------------------------------------------------
CBC News reports that it's been just over a week since the city
announced a bombshell report from 2013 that raised concerns about
friction levels on the deadly Red Hill Valley Parkway (RHVP) had
never been brought to council or publicly released.
In that time, two council meetings with hours of discussion have
been held. Outraged members of the public have called for an
external investigation. Even more reports have been revealed.
One week into the Red Hill safety controversy, here is a primer on
what has happened and how much is known.
It's not clear if the 2013 report was buried, forgotten or ignored
The city says the report, once it was received, sat for years in a
dedicated network folder for the director of engineering services.
It's not clear who at the city had seen it, only that the city
hired Tradewind Scientific, via Golder Associates, to do the work
in 2013.
Why the report sat there is still unknown. Dan McKinnon, general
manager of public works, says it was likely whoever saw it didn't
think it was important enough to bring to council. But that's part
of what the investigation will reveal.
Council's initial plan for an internal review was not enough to
satisfy public outcry
Council revealed the buried report and apologized that same day,
pledging the city's auditor general would complete an independent
investigation into internal processes and procedures when it comes
to friction on the RHVP.
But that wasn't enough for many in the community who called for an
external probe.
Following two days of feedback, Mayor Fred Eisenberger put out a
statement calling for an external investigation and saying he
expected unanimous support from his council colleagues.
Councillors staff and lawyers have talked a lot, but only to each
other, behind closed doors
Despite the public interest, any council debates have been kept
behind closed doors.
Council has had two marathon discussions, each about five hours
each, on the matter. Both have happened in camera, with the city
citing legal advice and potential litigation as a reason.
Both the mayor and Brad Clark, Ward 9 (Stoney Creek) councillor,
said it had to be that way. Clark said he was judicious about it,
monitoring if conversation was veering into subjects that could
happen in open session. When the meeting reconvened, council voted
on a series of Red Hill motions without much debate.
Both acknowledge people want to know as much as they can. That's
why Clark said he prefers the external investigation to be a
judicial inquiry.
A judicial inquiry "can assign blame, or indicate if there was some
malfeasance or wrongdoing, and that's something the auditor general
can't do," he said.
"The auditor general says, 'OK, it happened and what policies can
fix this.' In this case, I think the public wants to know
everything."
City council did vote to make two more reports public.
It's not clear what the external investigation will look like
City council voted around 3 a.m. on Feb. 14 to ask for an external
investigation. But it still needs lawyers to say what that should
look like.
The city will hire outside lawyers to tell it whether it should ask
for a judicial inquiry, an auditor general's report or something
else. The outside lawyer is necessary, Mayor Fred Eisenberger says,
because that person will have expertise city lawyers don't.
The city's own director of audit services, which reports to the
city manager as well as directly to council, is also looking into
how the report remained hidden.
Donna Skelly, PC MPP for Flamborough-Glanbrook, and Andrea Horwath,
official opposition leader and Hamilton Centre NDP MPP, have both
called for judicial inquiries.
There's no settled standard for friction levels and different
studies have different conclusions
There's no standard for friction levels in North America —
meaning just what level they should be at is unclear. Different
tests have also reached different conclusions about the road
surface and safety on the RHVP.
The 2013 Tradewind report used UK standards to test the
slipperiness of the road and found, in some spots, the friction of
the RHVP was well below those standards.
Meanwhile, testing on a four-kilometre stretch carried out by
Ontario's Ministry of Transportation between 2007 and 2014 found
friction levels declined over the years but were still deemed
"acceptable."
Road friction levels in Canada are measured in two ways: The
distance it takes for a vehicle to stop on a road and the speed at
which a vehicle can travel through a horizontal curve without the
centripetal force pushing the vehicle off the road.
The 2013 report was not followed up on and that is what should have
happened.
After identifying below-standard friction levels, the Tradewind
report called for more detailed investigation, but a 2015 safety
analysis of the RHVP makes no mention of the study completed just
two years before.
Instead, it also suggests the city consider further testing,
especially when it comes to wet road conditions.
Ahmed Shalaby, an asphalt expert and municipal infrastructure chair
at the University of Manitoba, said it's "surprising, and maybe
shocking" the city would didn't do follow-up testing a report
raising concerns. He added the testing should be replicated before
it proceeds with a plan to lay new asphalt.
The city knew back in 2015 that there was a high proportion of wet
condition crashes
Regardless of the 2013 report stuck in a computer folder, the city
had statistical confirmation of safety issues with the highway by
2105.
On May 5, 2015 friends Jordyn Hastings and Olivia Smosarski were
killed in a collision on the parkway while driving in wet
conditions.
That same year, the city received a report from CIMA+ stating the
majority of collisions along the section of the parkway it studied
happened when the road surface was wet.
The overall findings of the report add that the proportion of wet
surface crashes is "significantly higher" than what's typically
seen.
That conclusion was echoed four years later in most recent, January
2019 report. It says an analysis of 545 collision on revealed the
proportion of crashes in we conditions was "noticeably higher" than
the 2015 review, which was already far above the averages for the
province or city.
Experts recommend high-friction surface but it's unclear if the
city will install it
The latest CIMA+ report suggests Hamilton should consider the need
for a higher-friction surface for the full, six-kilometre stretch
of the parkway.
But in an email to CBC News, a spokesperson didn't directly answer
whether the city will follow that recommendation when it starts
resurfacing this spring.
Instead, Jasmine Graham said the asphalt will have "friction
performance" consistent with industry standards.
"The material used will be at a highway standard that is based on
provincial specifications and applied to the entire project," she
wrote in an email.
The city will still be able to defend itself against in lawsuits
brought by people whose cars have crashed
Families who lost loved ones in crashes on the RHVP are considering
their legal options, including a class action lawsuit.
But a legal professor says proving the city, not other factors from
speeding to the weather, caused the fatal crash will be a hard
road.
Allan Hutchinson is a distinguished research professor at York
University's Osgoode Law School. He identified two legal routes --
civil lawsuits or administrative law -- families could follow, but
said neither ends in a good chance for a settlement.
"Trying to show that the city is responsible for individual
accidents will not be easy. I would even say . . . almost
impossible."
Still, says Mr. Hutchinson, a class action lawsuit could put
political pressure on the reach to reach a settlement and raise the
public awareness about what's happened on the RHVP. [GN]
CARLYLE GROUP: Settlement in Cobalt Securities Suit Okayed
----------------------------------------------------------
The Carlyle Group L.P. said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on February 13, 2019, for
the fiscal year ended December 31, 2018, that the district court
has approved a settlement between the lead plaintiffs in the case
entitled, In re Cobalt International Energy, Inc. Securities
Litigation and various parties.
Cobalt International Energy, Inc. ("Cobalt") was a portfolio
company owned by two of the company's Legacy Energy funds and funds
advised by certain other private equity sponsors. Cobalt filed for
bankruptcy protection on December 14, 2017.
A federal securities class action against Cobalt (In re Cobalt
International Energy, Inc. Securities Litigation) was filed in
November 2014 in the U.S. District Court for the Southern District
of Texas, seeking monetary damages and alleging that Cobalt and its
directors made misrepresentations in certain of Cobalt's securities
offering filings relating to: (i) the value of oil reserves in
Angola for which Cobalt had acquired drilling concessions, and (ii)
its compliance with the Foreign Corrupt Practices Act regarding its
operations in Angola and a U.S. government investigation regarding
the same.
The securities class action also named as co-defendants certain
securities underwriters and the five private equity sponsors of
Cobalt, including Riverstone and the Partnership. The class action
alleged that the Partnership has liability as a "control person"
for the alleged misrepresentations in Cobalt's securities offerings
as well as insider trading liability. The federal court dismissed
the insider trading claim against the Partnership.
On February 13, 2019, the district court approved a settlement
between the lead plaintiffs in the securities class action and
various parties, including the Partnership, under which all claims
against the Partnership were released without any requirement for
the Partnership to make any financial contribution towards the
settlement.
In addition to the class action in federal court, a class action
claim was also filed in Texas state court in Houston (Ira Gaines v.
Joseph Bryant, et al.) on similar grounds, alleging derivative
claims that Cobalt and the private equity sponsors breached their
fiduciary duties by engaging in insider trading. On May 9, 2018,
the Plan Administrator for Cobalt filed a Notice of Nonsuit with
Prejudice, dismissing all claims in the case (including the claim
against the Partnership) with prejudice. The court ordered the
nonsuit of all claims in an order entered the same day.
The Carlyle Group L.P. is an investment firm specializing in direct
and fund of fund investments. The Carlyle Group L.P. was founded in
1987 and is based in Washington, District of Columbia with
additional offices in 20 countries across six continents (North
America, South America, Asia, Australia, Europe, and Africa).
CBA INDUSTRIES: Hernandez Seeks Unpaid Overtime, Hits Retaliation
-----------------------------------------------------------------
Angel Encarnacion-Hernandez, individually, and on behalf of all
others similarly situated, Plaintiff, v. CBA Industries, Inc., CBA
Insert Distribution System, Inc. and Terry Scott, Defendant, Case
No. 502198/2019 (N.Y. Sup., January 31, 2019), seeks to recover all
available damages, including his lost wages, reinstatement, maximum
liquidated damages, other damages including punitive damages,
attorneys' fees and costs of the action pursuant to New York labor
laws.
CBA is engaged in the business of packing, transporting and
distributing marketing and other materials in bulk where Hernandez
was employed as a warehouse worker. He claims that he was
terminated and discharged in discrimination and retaliation because
he filed a wage action in court. [BN]
Plaintiff is represented by:
Abdul K. Hassan, Esq.
Abdul Hassan Law Group, PLLC
215-28 Hillside Avenue
Queens Village, NY 11427
Tel: (718) 740-1000
Fax: (718) 740-2000
E-mail: abdul@abdulhassan.com
CHINANTLA DELI: Chavez Suit Alleges FLSA Violation
--------------------------------------------------
Diego Chavez and Luis Chavez, on behalf of themselves and FLSA
Collective Plaintiffs v. Chinantla Deli Corp. dba Chinantla
Restaurant Deli & Grocery, The Little Chinantla Restaurant Corp.
dba The Little Chinantla Restaurant, Guadalupe Ramos and Arturo
Palagios, Case No. 1:19-cv-01195 (E.D. N.Y., February 28, 2019),
seeks to recover unpaid overtime, liquidated damages and attorneys'
fees and costs under the Fair Labor Standards Act.
The Plaintiffs alleges that the Defendants knew of and showed a
willful disregard for the provisions of the FLSA as evidenced by
their failure to compensate Plaintiffs and FLSA Collective
Plaintiffs at the statutory rate of time and one-half for their
hours worked in excess of 40 hours per week when Defendants knew or
should have known such was due.
The Plaintiff Diego Chavez worked as a delivery person for the
Defendants' Chinantla restaurant located at 657 Mytle Ave,
Brooklyn, New York from February 2018 until June 2018.
The Plaintiff Luis Chavez worked as a delivery person for the
Defendants' Chinantla restaurant located at 657 Mytle Ave,
Brooklyn, New York from September 2017 until December 2017.
The Defendants own and operate a restaurant deli and grocery store
in Brooklyn, New York. [BN]
The Plaintiffs are represented by:
C.K. Lee, Esq.
Anne Seelig, Esq.
LEE LITIGATION GROUP, PLLC
30 East 39th Street, Second Floor
New York, NY 10016
Tel: (212) 465-1188
Fax: (212) 465-1181
COMPREHENSIVE HEALTH: Adame Labor Suit Removed to N.D. Cal.
-----------------------------------------------------------
Isabel Adame, on behalf of herself and others similarly situated,
Plaintiff, v. Comprehensive Health Management, Inc., Easy Choice
Health Plan, Inc., Wellcare Health Plans of California, Inc. and
Does 1 to 100, Case No. 18STCV04139, (Los Angeles County Superior
Court, November 7, 2018), is removed to the United States District
Court Central District Of California on February 1, 2019 under Case
No. 19-cv-00779.
Adame seeks to recover minimum and overtime wages, redress for
failure to provide meal periods, failure to pay vacation wages,
failure to provide accurate wage statements, failure to timely pay
final wages in violation of the California Unfair Competition Law.
Defendant cited minimum diversity as cause for removal stating the
fact that Adame is a resident of California while Comprehensive
Health Management is a Florida corporation.
The Plaintiff is represented by:
Joseph Lavi, Esq.
Susan R. Huerta, Esq.
LAVI & EBRAHIMIAN, LLP
8889 West Olympic Boulevard, Suite 200
Beverly Hills, CA 90211
Telephone: (310) 432-0000
Facsimile: (310) 432-0001
Email: jlavi@lelawfirm.com
Defendant is represented by:
Michael D. Mandel, Esq.
Sean M. Sullivan, Esq.
MCGUIREWOODS LLP
1800 Century Park East, 8th Floor
Los Angeles, CA 90067-1501
Telephone: (310) 315-8200
Facsimile: (310) 315-8210
Email: mmandel@mcguirewoods.com
ssullivan@mcguirewoods.com
CONSOL ENERGY: Casey Suit in West Virginia Still Ongoing
--------------------------------------------------------
CONSOL Energy Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on February 8, 2019, for the
fiscal year ended December 31, 2018, that the company continues to
defend against the Casey litigation in West Virginia federal
court.
A class action lawsuit was filed on August 23, 2017 on behalf of
two nonunion retired coal miners against Consolidation Coal Company
(CCC), CONSOL of Kentucky Inc. (COK), CONSOL Buchanan Mining Co.,
LLC and Kurt Salvatori in West Virginia Federal Court alleging
ERISA violations in the termination of retiree health care
benefits. Filed by the same lawyers who filed the Fitzwater
litigation, and raising nearly identical claims, the Plaintiffs
contend they relied to their detriment on oral promises of
"lifetime health benefits" allegedly made by various members of
management during Plaintiffs' employment and that they were not
provided with copies of Summary Plan Documents clearly reserving to
the Company the right to modify or terminate the Retiree Health and
Welfare Plan.
Plaintiffs request that retiree health benefits be reinstated for
them and their dependents and seek to represent a class of all
nonunion retirees of any subsidiary of the Company's former parent
that operated or employed individuals in McDowell or Mercer
Counties, West Virginia, or Buchanan or Tazewell Counties, Virginia
whose retiree welfare benefits were terminated. On December 1,
2017, the trial court judge in Fitzwater signed an order to
consolidate Fitzwater with Casey.
The Casey complaint was amended on March 1, 2018 to add new
plaintiffs, add defendant CONSOL Pennsylvania Coal Company, LLC and
eliminate defendant CONSOL Buchanan Mining Co., LLC in an attempt
to expand the class of retirees.
The Company believes it has a meritorious defense and intends to
vigorously defend this suit.
No further updates were provided in the Company's SEC report.
CONSOL Energy Inc. produces and exports bituminous coal. It owns
and operates its mining operations in the Northern Appalachian
Basin. The company owns and operates the Pennsylvania Mining
Complex (PAMC), which comprises three underground mines, including
Bailey, Enlow Fork, and Harvey; and CONSOL Marine Terminal located
in the port of Baltimore. CONSOL Energy Inc. was founded in 1864
and is headquartered in Canonsburg, Pennsylvania.
COOK COUNTY, IL: Class Cert. Bid in Williams et al. Suit Denied
---------------------------------------------------------------
In the class action lawsuit TAPHIA WILLIAMS, GREGORY COOPER, JOSHUA
ATWATER, MARCUS JOHNSON, XAVIER WEBSTER, and TONY MASON,
individually and on behalf of those similarly situated, the
Plaintiffs, v. COOK COUNTY and COOK COUNTY SHERIFF TOM DART, the
Defendants, Case: 1:18-cv-01456 (N.D. Ill.), the Hon. Judge Harry
D. Leinenweber entered an order:
1. granting in part and denying in part Sheriff Dart's motion to
dismiss Plaintiffs' Third Amended Complaint; and
2. denying Plaintiffs' Motion for Class Certification.
The Court confined the case to whether Sheriff Dart's prolonged
detention of individuals after they already posted bond was lawful.
While all the members of the proposed class were granted bond and
then subsequently denied release, the specific facts surrounding
each individual detention might warrant a different outcome. In
other words, the constitutionality of each individual Plaintiff's
detention -- namely, whether Sheriff Dart violated his or her
procedural due process right -- is a question of fact requiring
independent analysis and likely resulting in independent and
varying outcomes. This is also evidenced by the fact that pursuant
to Sheriff Dart's policy, not all individuals granted release on
home confinement were subsequently detained or denied immediate
placement in Sheriff Dart's EHM program. Rather, Sheriff Dart
conducted an independent assessment of the pretrial detainees,
which subsequently led to his independent determination to either
enroll that detainee in his EHM program or prolong his or her
detention. Such a case by case determination will require this
Court to conduct a case by case analysis over whether that
individual Plaintiff's prolonged detention was unlawful.
Accordingly, the Plaintiffs have failed to show typicality. The
Court finds that, given the circumstances, class action is not the
appropriate vehicle to adjudicate the claims at bar.
The Plaintiffs brought this putative class action under 42 U.S.C.
section 1983 against Defendant, alleging that Sheriff Dart
unlawfully detained them and other individuals in the Cook County
Jail pursuant to an unconstitutional policy after their bonds had
posted.[BN]
CREDIT SUISSE: Court Narrows Claims in Stockholders Suit
--------------------------------------------------------
In the case, CITY OF BIRMINGHAM RETIREMENT AND RELIEF SYSTEM, et
al., Plaintiffs, v. CREDIT SUISSE GROUP AG, et al., Defendants,
Case No. 17 Civ. 10014 (LGS) (S.D. N.Y.), Judge Lorna G. Schofield
of the U.S. District Court for the Southern District of New York
granted in part and denied in part the Defendants' motion to
dismiss the First Amended Complaint pursuant to Federal Rule of
Civil Procedure 12(b)(6).
The Lead Plaintiffs, individually and on behalf of all others
similarly situated, bring the putative class action against
Defendants CS, Brady Dougan, Tidjane Thiam and David Mathers,
alleging violations of Section 10(b) and Section20(a) of the
Securities Exchange Act of 1934. Defendant CS is a multinational
financial services holding company with its headquarters in Zurich,
Switzerland. Its ADRs are traded on the New York Stock Exchange
("NYSE").
On a March 23, 2016, earnings call, CS announced that an additional
$346 million in write-downs would be charged against CS's first
quarter earnings for 2016. In total, the illiquid positions
contributed to $1 billion in write-downs. Following the
announcement, Thiam stated that the exposure resulted from CS
raising its internal risk limits and allowing for more exposures to
the CLOs and distressed debt investments.
The Complaint alleges material omissions and misstatements made
during the Class Period in violation of Section 10(b) of the
Exchange Act. Its allegations of material omissions and
misstatements fall into two categories. The first category
concerns statements in the 2014 Annual Report and the Dec. 15,
2015, Registration Statement and Prospectus about CS' risk limits
and controls. The Complaint alleges that the report states that
CS' risk limits were "binding" and breaches are "rare."
The second category concerns statements from CS's Oct. 21, 2015,
press release and CS' Oct. 21, 2015, third quarter earnings call
about positions in the distressed portfolio. The Complaint alleges
that these statements were misleading because CS had amassed $4.3
billion in exposure -- $1.3 billion in CLOs and $3 billion in
distressed debt -- and the Defendants gave investors the impression
that these positions were entirely benign and did not require an
aggressive wind down.
The Complaint alleges scienter based on inferences from these
facts. In addition, the Complaint relies on confidential witnesses
("CW"). The Complaint alleges scienter by virtue of the Individual
Defendants' position on Capital Allocation and Risk Management
Committee ("CARMC"). During the Class Period, all the Individual
Defendants were at some point a member of CARMC. As members of
CARMC, the Individual Defendants directly participated in reviewing
and setting risk limits. The Complaint alleges that the November
2015 limit raise was directly reviewed and approved by CARMC and
senior management, meaning Defendants Thiam and Mathers, who were
members of CARMC at this time, themselves raised the risk limit to
accommodate the massive exposures of the outsized positions. The
CWs confirmed that Defendant Thiam had access to emails from the
risk management team about the positions and both Thiam and Mathers
would have known about the positions as members of CARMC.
The Defendants move to dismiss the Complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6).
The Complaint alleges that the Defendants' misleading statements
allowed CS to amass $4.3 billion in exposure to CLOs and distressed
debt instruments, resulting in a $1 billion write-down and a loss
to investors. It alleges that CS misled investors about (1) CS'
procedures to monitor and control risk, (2) the extent of CS'
positions in collateralized loan obligations ("CLOs") and
distressed debt and (3) the riskiness of those investments. The
Complaint states a claim only as to the first of these statements
and omissions. Principally at issue on the Motion is whether the
Complaint sufficiently pleads three of the six elements of
securities fraud -- a material misrepresentation or omission,
scienter and loss causation.
Judge Schofield finds that although the Annual Report repeatedly
represented that risk limits were "binding" and no breaches
occurred, the Complaint identifies at least three instances when
the limits were not binding and effectively breached. The Complaint
sufficiently pleads materially misleading statements and omissions
about CS' risk limits and controls.
Next, for purposes of a motion to dismiss, the Judge finds that the
analyst reports -- in addition to CS' public acknowledgment of the
need to "right size" the Investment Bank -- illustrate that the
market was aware of the extent of CS' risk exposure. The Complaint
implies as much by alleging that investors and analysts expected CS
to substantially scale back the capital intensive positions in the
Investment Bank.
As to scienter, taken together, the Judge finds that the
Complaint's allegations sufficiently raise an inference of scienter
with respect to the Individual Defendants and CS' risk limits and
controls. Because the Complaint adequately alleges scienter as to
the Individual Defendants, CS' scienter is inferred from theirs.
The Judge also finds that the Complaint alleges that the
Defendants' materially misleading statements and omissions about
the risk limits and controls resulted in $4.3 billion in exposure
to CLOs and distressed debt instruments, which led to a $1 billion
write-down that caused CS to record its first full year loss since
the 2008 financial crisis. The Complaint alleges that after CS
announced the write-down, the price of CS's ADRs declined from a
close of $16.69 on Feb. 3, 2016, to a close of $14.89 on Feb. 4,
2016, an 11% decrease that amounted to a market capitalization
decline of $234 million. These allegations are sufficient to plead
loss causation. They allege facts that, if true, show that
disclosure of CS' misleading statements about its risk limits
negatively affected the value of CS' ADRs.
Finally, as she has denied the Defendants' Motion to Dismiss
Plaintiffs' Section 10(b) claim, and the Plaintiffs have otherwise
adequately alleged control person liability, the Judge denied the
Defendants' motion to dismiss the Section 20(a) claim.
For the foregoing reasons, Judge Schofield denied the Defendants'
motion to dismiss except as to alleged misstatements regarding the
extent and risk of the distressed portfolio. The Clerk of Court is
respectfully directed to close the motion at Docket No. 50.
A full-text copy of the Court's Feb 19, 2019 Order is available at
https://is.gd/caFJAv from Leagle.com.
City of Birmingham Retirement and Relief System, Westchester Putnam
Counties Heavy and Highway Laborers Local 60 Benefit Funds &
Teamsters Local 456 Pension and Annuity Funds, Lead Plaintiffs,
represented by Joseph E. White, III -- jwhite@saxenawhite.com --
Saxena White P.A., Adam Farra, Cohen Milstein Sellers & Toll PLLC,
Carol V. Gilden -- cgilden@cohenmilstein.com -- Cohen Milstein
Sellers & Toll PLLC, Daniel Stephen Sommers --
dsommers@cohenmilstein.com -- Cohen Milstein Sellers & Toll PLLC,
Eric Steven Berelovich, Cohen Milstein Sellers & Toll PLLC, Kenneth
Mark Rehns -- krehns@warddamon.com -- Ward Damon Posner Pheterson &
Bleau & Steven B. Singer -- ssinger@saxenawhite.com -- Saxena White
P.A.
International Brotherhood of Teamsters Local No. 710 Pension Plan,
Lead Plaintiff, represented by Adam Farra, Cohen Milstein Sellers &
Toll PLLC, Carol V. Gilden, Cohen Milstein Sellers & Toll PLLC,
Daniel Stephen Sommers, Cohen Milstein Sellers & Toll PLLC, Eric
Steven Berelovich, Cohen Milstein Sellers & Toll PLLC & Steven B.
Singer, Saxena White P.A.
City of Birmingham Firemen's and Policemen's Supplemental Pension
System, Individually and on Behalf of All Others Similarly
Situated, Plaintiff, represented by Carol V. Gilden, Cohen Milstein
Sellers & Toll PLLC & Steven B. Singer, Saxena White P.A.
City of Daytona Beach Police & Fire Pension Fund, Movant,
represented by Nancy A. Kulesa -- nkulesa@zlk.com -- Levi &
Korsinsky, LLP.
Credit Suisse Group AG, Brady Dougan, Tidjane Thiam & David
Mathers, Defendants, represented by David George Januszewski --
djanuszewski@cahill.com -- Cahill Gordon & Reindel LLP, Herbert
Scott Washer, Cahill Gordon & Reindel LLP & Sarah Penny Windle --
pwindle@cahill.com -- Cahill Gordon & Reindel LLP.
CVS PHARMACY: Court Dismisses Forouzesh Suit with Leave to Amend
----------------------------------------------------------------
In the case, ALEXANDER FOROUZESH, on behalf of himself and all
others similarly situated, Plaintiff, v. CVS PHARMACY, INC., a
foreign business corporation; and DOES 1-25 inclusive Defendants,
Case No. 2:18-CV-04090-ODW (AFMx) (C.D. Cal.), Judge Otis D.
Wright, Jr. of the U.S. District Court for the Central District of
California granted CVS' motion to dismiss Forouzesh's First Amended
Complaint ("FAC") with leave to amend.
In November 2016, Forouzesh purchased a bottle of "CVS Sport SPF
100+ Sunscreen Spray" in reliance on its SPF 100+ label. He
purchased the product on the assumption that [it] contained the
advertised SPF level of protection. However, he had a CVS Sport
SPF 100+ product tested using FDA-compliant testing protocols, and
the testing report revealed an SPF of only 29. As a result,
Forouzesh alleges, the SPF 100+ label on all CVS Sport SPF 100+
products and CVS' implied message of superior UVB protection are
false and misleading. Forouzesh would not have purchased the
products had he known the truth about the lower SPF value.
Forouzesh filed his initial Complaint on behalf of a putative
nationwide class. CVS moved to dismiss and Forouzesh amended his
complaint. Accordingly, the Court denied CVS' first motion to
dismiss as moot.
Based on the allegations, Forouzesh asserts four causes of action
through his FAC, including (1) violation of California Business and
Professions Code ("B&P") section 17200 et seq. (Unfair Competition
Law ("UCL")), (2) violation of B&P section 17500 et seq. (False
Advertising Law ("FAL"), (3) violation of California Civil Code
section 1750 et seq. (Consumers Legal Remedy Act ("CLRA")), and (4)
breach of express warranty.
Forouzesh asserts that all of his causes of action are predicated
on the fact that CVS' sunscreen is inaccurately labeled as SPF 100+
since product testing following FDA protocol revealed an SPF level
of 29. Through his FAC, Forouzesh seeks damages and an order that
CVS relabel all its CVS Sport SPF 100+ sunscreen products as SPF 29
per his independent testing and conduct a corrective advertising
campaign to inform consumers of its deceptive labeling.
CVS moves to dismiss Forouzesh's FAC, arguing that Forouzesh's
claims are preempted, should be dismissed under the primary
jurisdiction doctrine, and are otherwise improper.
Forouzesh attached a copy of his product-testing Report to his
Complaint. However, Judge Wright finds that rather than support
the plausibility of his conclusory allegations, the Report
contradicts them. First, it is unclear what product was tested and
whether it was the product Forouzesh purchased. Forouzesh does not
allege that the product tested is the product he purchased or
otherwise connect the two. Also, even assuming the product
purchased was the product tested, the testing appears not to comply
with FDA regulations. Absent explanation as to how the test
results comply with the regulations in the face of these obvious
deficiencies, the Report only undermines Forouzesh's allegations of
FDA-compliant testing.
The Judge also finds that requiring at least some facts to support
a plausible inference of FDA-compliant testing is proper. The
substance of the allegations is particularly important here because
the question of compliance must be determined using a precise and
specific methodology; Forouzesh's claims implicate the
particularity pleading standard of Rule 9; and rather than
providing support, the Report contradicts Forouzesh's conclusory
allegations.
Even courts that do not require factual support for FDA-compliant
testing agree that a claim seeking to use a methodology other than
that required by the FDA would be preempted. In the case, the
Judge cannot conclude that Forouzesh's testing was conducted in
compliance with FDA regulations. As the FAC seeks to require CVS
to apply this methodology, which is different from or not identical
with SPF testing required by FDA regulation, he finds Forouzesh's
claims, as pleaded, are preempted. Accordingly, he will grant CVS'
motion to dismiss Forouzesh's FAC.
To the extent Forouzesh can amend his Complaint in good faith to
allege that independent testing of the product he purchased
complied with the FDA regulations for SPF testing, Forouzesh may
amend his FAC within 21 days of the Order.
For the reasons he discussed, Judge Wright granted CVS' Motion to
Dismiss. Forouzesh may amend his FAC within 21 days of the date of
the Order, only as to the FDA-compliant SPF testing of the product
he purchased. Should Forouzesh not file an amended complaint
within 21 days, the dismissal will convert to one with prejudice.
A full-text copy of the Court's Feb. 15, 2019 Order is available at
https://is.gd/PCcMLq from Leagle.com.
Alexander Forouzesh, on behalf of himself and all others similarly
situated, Plaintiff, represented by Raymond M. Collins --
raymond@farahilaw.com -- Farahi Law Firm APC & Justin Farahi --
justin@farahilaw.com -- Farahi Law Firm APC.
CVS Pharmacy, Inc., a foreign business corporation, Defendant,
represented by Ricky L. Shackelford -- shackelfordr@gtlaw.com --
Greenberg Traurig LLP.
DHI GROUP: Hearing This Month on Initial Settlement Approval
------------------------------------------------------------
DHI Group, Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on February 8, 2019, for the
fiscal year ended December 31, 2018, that the re-filed class action
lawsuit by Ian Douglas is pending before the Superior Court of
Santa Clara County, California, and the parties have moved for
preliminary approval of the settlement, which the court is
scheduled to hear in March 2019.
During the first quarter of 2018, the Company recorded a $1.0
million liability related to a class action lawsuit regarding the
applicability of provisions of the Fair Credit Reporting Act (the
"FCRA") to one of its products. The recorded liability reflects a
tentative settlement, which upon execution and final approval by
the court, will resolve all remaining claims subject to the
lawsuit.
The lawsuit was brought by Ian Douglas, individually, as a
representative of the class and on behalf of the general public,
against DHI Group, Inc. and Dice Inc. asserting six claims under
the FCRA that the Company's Open Web profiles are "consumer
reports" and Dice is a "consumer reporting agency" under the FCRA,
including claims pursuant to the private right of action in 15
U.S.C. Section 1681n for alleged willful violations of the FCRA.
The action was originally filed in a federal district court on July
26, 2017, but as part of the settlement process, the action has
been re-filed and is pending in the Superior Court of Santa Clara
County, California (Case No. 18CV331732).
DHI Group, Inc. provides data, insights, and employment connections
through specialized services for technology professionals in the
United States and internationally. The company was formerly known
as Dice Holdings, Inc. and changed its name to DHI Group, Inc. in
April 2015. DHI Group, Inc. was founded in 1991 and is
headquartered in New York, New York.
DIGNITY HEALTH: Gray Suit Challenges Deceptive Surcharge Fees
-------------------------------------------------------------
GORDON GRAY, on behalf of himself and all others similarly situated
v. DIGNITY HEALTH, a California non-profit corporation; and DOES 1
through 25, inclusive, Case No. CGC-19-574074 (Cal. Super., San
Francisco Cty., February 26, 2019), challenges the Defendants'
alleged unfair, deceptive, and unlawful practice of charging its
emergency care patients a substantial undisclosed emergency room
fee.
The Surcharge is billed on top of the charges for the individual
items of treatment and services provided, but which is not
disclosed and is effectively concealed from a patient presenting at
any one of their emergency rooms, Mr. Gray alleges. He contends
that the Surcharge, which is essentially a "cover charge" for being
seen in the Defendants' emergency room, would be a substantial
factor in an emergency care patient's decision to remain at the
Hospital and proceed with treatment.
Dignity Health is a California non-profit corporation. The true
names and capacities of the Doe Defendants are unknown to the
Plaintiff.
Dignity Health owns, operates, and/or provides management and
billing services for 31 hospitals and medical centers with
emergency rooms in California, including St. Mary's Medical Center,
in San Francisco.[BN]
The Plaintiff is represented by:
Gretchen Carpenter, Esq.
CARPENTER LAW
1230 Rosecrans Ave., Suite 300
Manhattan Beach, CA 90266
Telephone: (424) 456-3183
E-mail: gretchen@gcarpenterlaw.com
- and -
Barry L. Kramer, Esq.
LAW OFFICES OF BARRY L. KRAMER
9550 S. Eastern Ave., Suite 253
Las Vegas, NV 89123
Telephone: (702) 778-6090
E-mail: kramerlaw@aol.com
DISH NETWORK: Unit Continues to Defend Krakauer Suit
----------------------------------------------------
DISH Network Corporation said in its Form 10-K report filed with
the U.S. Securities and Exchange Commission on February 13, 2019,
for the fiscal year ended December 31, 2018, that Dish Network
L.L.C. remains a defendant in the Krakauer litigation.
A portion of the alleged telemarketing violations by an independent
third-party retailer at issue in the Federal Trade Commission (FTC)
Action are also the subject of a certified class action filed
against DISH Network L.L.C. in the United States District Court for
the Middle District of North Carolina (the "Krakauer Action").
Following a five-day trial, on January 19, 2017, a jury in that
case found that the independent third-party retailer was acting as
DISH Network L.L.C.'s agent when it made the 51,119 calls at issue
in that case, and that class members are eligible to recover $400
in damages for each call made in violation of the TCPA. On March 7,
2017, DISH Network L.L.C. filed motions with the Court for judgment
as a matter of law and, in the alternative, for a new trial, which
the Court denied on May 16, 2017.
On May 22, 2017, the Court ruled that the violations were willful
and knowing, and trebled the damages award to $1,200 for each call
made in violation of TCPA. On April 5, 2018, the Court entered a
$61 million judgment in favor of the class. On May 4, 2018, DISH
Network L.L.C. filed a notice of appeal to the United States Court
of Appeals for the Fourth Circuit.
During the second quarter 2017, the company recorded $41 million of
"Litigation expense" related to the Krakauer Action on its
Consolidated Statements of Operations and Comprehensive Income
(Loss). The company recorded $20 million of "Litigation expense"
related to the Krakauer Action during the fourth quarter 2016. The
company's total accrual related to the Krakauer Action at December
31, 2018 and 2017 was $61 million and is included in "Other accrued
expenses" on its Consolidated Balance Sheets.
DISH Network said, "We intend to vigorously defend these cases. We
cannot predict with any degree of certainty the outcome of these
suits."
DISH Network Corporation, together with its subsidiaries, provides
pay-TV services in the United States. The company operates in two
segments, Pay-TV and Wireless. DISH Network Corporation was founded
in 1980 and is headquartered in Englewood, Colorado.
DPD: Faces Class Action Over Point-Based Disciplinary System
------------------------------------------------------------
Gordon Blackstock, writing for Daily Record, reports that parcel
giant DPD has been accused of using an unfair points-based
disciplinary system to sack drivers.
The firm was forced to review its practices after the death of
employee Don Lane, who cancelled meetings with kidney specialists
over fears he would be fined £150 for attending a hospital
appointment.
But scores of drivers say a new system subsequently introduced is
even worse.
DPD drivers who make mistakes or don't turn up for work are now
given points. If they tot up 21 points, their contracts are
terminated.
Employment specialists Leigh Day are pursuing unfair dismissal
claims for eight Scottish workers who are part of a class action
involving 76 cases due to be heard at a tribunal in Cardiff.
The firm's Nigel Mackay said: "This points-based system is not
recognised in employment law as being enough for someone to lose
their job if the points have been given for trivial reasons.
"Some are getting points for being unable to make work.
"There are also concerns DPD isn't going through the correct
procedures when they dismiss drivers."
The couriers claim that as well as getting points for minor
mistakes, they have been targeted because they are members of a
union and previously earned high wages with DPD.
They include father of two David Hart, 32.
The ex-soldier, of East Kilbride, said he was fired two days after
his son Alfie was born in January.
David, who worked for the firm for two years, claims he was given
seven points for failing to fix his vehicle within 21 days.
He said: "I had a minor problem with my van, some damage to the
bodywork.
"It didn't affect the van but DPD said it was a bad look for its
corporate image. I had to pay for it.
"The damage only happened because I got sent out to make deliveries
in bad snow in November and bumped it. [GN]
DXC TECHNOLOGY: Perspecta Units Liable in Forsyth Case
------------------------------------------------------
DXC Technology Company said in its Form 10-Q Report filed with the
Securities and Exchange Commission on February 8, 2019, for the
quarterly period ended December 31, 2018, that former business
units of the Company now owned by Perspecta will be proportionately
liable for any recovery by plaintiffs in Forsyth, et al. v. HP Inc.
and Hewlett Packard Enterprise.
A purported class and collective action was filed on August 18,
2016 in the U.S. District Court for the Northern District of
California, against HP and HPE alleging violations of the Federal
Age Discrimination in Employment Act ("ADEA"), the California Fair
Employment and Housing Act, California public policy and the
California Business and Professions Code.
Plaintiffs filed an amended complaint on December 19, 2016.
Plaintiffs seek to certify a nationwide class action under the ADEA
comprised of all U.S. residents employed by defendants who had
their employment terminated pursuant to a work force reduction
("WFR") plan on or after December 9, 2014 (deferral states) and
April 8, 2015 (non-deferral states), and who were 40 years of age
or older at the time of termination. Plaintiffs also seek to
represent a Rule 23 class under California law comprised of all
persons 40 years or older employed by defendants in the state of
California and terminated pursuant to a WFR plan on or after August
18, 2012.
On January 30, 2017, defendants filed a partial motion to dismiss
and a motion to compel arbitration of claims by certain named and
opt-in plaintiffs who had signed releases as part of their WFR
packages. On September 20, 2017, the Court denied the partial
motion to dismiss without prejudice, but granted defendants’
motions to compel arbitration for those named and opt-in
plaintiffs.
Accordingly, the Court has stayed the entire action pending
arbitration for these individuals, and administratively closed the
case. Plaintiffs filed a motion for reconsideration as well as a
notice of appeal to the Ninth Circuit (which has been denied as
premature). The reconsideration motion was denied without oral
argument. In that same decision, the Court held that a joint
arbitration was permissible.
The Company subsequently sought and obtained leave of Court to file
a motion for reconsideration arguing that joint arbitration is not
permitted under the relevant employee agreements. The Court denied
the motion on April 17, 2018, ruling that interpretation of the
employee agreements is an issue delegated to the arbitrator. The
American Arbitration Association, which was designated to manage
the arbitration process, has selected a single arbitrator to
conduct the proceedings. An initial case management conference
before the arbitrator was held on June 29, 2018.
Pursuant to the release agreements, however, mediation is a
precondition to arbitration. A mediation was held on October 4-5,
2018, and a settlement was reached with all 16 named and opt-in
plaintiffs who were compelled to arbitrate. Seven of the plaintiffs
were aligned to the Company.
DXC Technology said, "A settlement agreement has been signed. The
case will continue to proceed in Court, however, with respect to
other putative class members. Former business units of the Company
now owned by Perspecta will be proportionately liable for any
recovery by plaintiffs in this matter."
The company was formerly known as Computer Sciences Corporation and
changed its name to DXC Technology Company in April 2017 as a
result of its merger with the Enterprise Services business of
Hewlett Packard Enterprise Company.
DXC Technology Company, together with its subsidiaries, provides
information technology services and solutions primarily in North
America, Europe, Asia, and Australia. It operates through three
segments: Global Business Services (GBS), Global Infrastructure
Services (GIS), and United States Public Sector (USPS). DXC
Technology Company was founded in 1959 and is headquartered in
Tysons, Virginia.
EASTON DIAMOND: Wisdom Appeals C.D. Cal. Decision to 9th Circuit
----------------------------------------------------------------
Plaintiff Ricky Wisdom filed an appeal from a Court ruling in the
lawsuit styled Ricky Wisdom v. Easton Diamond Sports, LLC, Case No.
2:18-cv-04078-DSF-SS, in the U.S. District Court for the Central
District of California, Los Angeles.
As previously reported in the Class Action Reporter, the lawsuit
seeks to stop the Defendants' alleged distribution and sale of
baseball bats that are falsely advertised and mislabeled, and to
seek redress for all those who have been harmed by the Defendants'
misconduct.
The Plaintiff alleges that certain bats that the Defendants have
sold actually weigh significantly more than their labeled and
advertised weight.
The appellate case is captioned as Ricky Wisdom v. Easton Diamond
Sports, LLC, Case No. 19-80025, in the United States Court of
Appeals for the Ninth Circuit.[BN]
Plaintiff-Petitioner RICKY WISDOM, individually and on behalf of
similarly situated individuals, is represented by:
Robert Rafael Ahdoot, Esq.
Bradley Keith King, Esq.
Theodore Walter Maya, Esq.
AHDOOT & WOLFSON, P.C.
10728 Lindbrook Drive
Los Angeles, CA 90024
Telephone: (310) 474-9111
E-mail: rahdoot@ahdootwolfson.com
bking@ahdootwolfson.com
tmaya@ahdootwolfson.com
- and -
Eugene Y. Turin, Esq.
MCGUIRE LAW PC
55 W. Wacker Drive
Chicago, IL 60601
Telephone: (312) 893-7002
E-mail: eturin@mcgpc.com
Defendant-Respondent EASTON DIAMOND SPORTS, LLC, a Delaware limited
liability company, is represented by:
Catherine L. Carlisle, Esq.
James John Yukevich, Esq.
YUKEVICH CAVANAUGH
355 S. Grand Avenue, 15th Floor
Los Angeles, CA 90071
Telephone: (213) 362-7777
E-mail: ccarlisle@yukelaw.com
jyukevich@yukelaw.com
EMPLOYERS INSURANCE: First State Orthopaedics Hits Denied Claims
----------------------------------------------------------------
First State Orthopaedics, P.A., on behalf of itself and all others
similarly situated, Plaintiff, v. Employers Insurance Company Of
Wausau, Helmsman Management Services, LLC, Liberty Insurance
Corporation, Liberty Mutual Fire Insurance Company, LM Insurance
Corporation, The First Liberty Insurance Corporation and Wausau
Underwriters Insurance Company, Defendants, Case No. S19C-01-051
CAK, (Del. Sup., January 31, 2019), seeks award of declaratory
relief, reasonable attorneys' fees and such other and further
relief for alleged violation of Sections 2362(b), 2322F(e) and
2322F(h), Title 19 of the Delaware Code.
First State Orthopaedics is an orthopedic practice in Delaware. It
submitted health care invoices to the Defendants with respect to
care provided to their members' compensation claim which were
denied.
With the exception of defendant Helmsman Management Services, each
defendant is a member of the Liberty Mutual Group of insurance
companies. Helmsman is a wholly owned subsidiary of Liberty Mutual
Holding Company. It provides third-party claims administration
services to members of the Liberty Mutual Group of insurance
companies. [BN]
Plaintiff is represented by:
John S. Spadaro, Esq.
JOHN SHEEHAN SPADARO, LLC
54 Liborio Lane
Smyrna, DE 19977
Tel: (302) 235-7745
ENHANCED RECOVERY: Robinson et al. Seek to Certify Class
--------------------------------------------------------
In the class action lawsuit JOSHUA ROBINSON and PHILIP GIBSON, on
behalf of themselves and all other similarly situated consumers,
the Plaintiff, vs. ENHANCED RECOVERY COMPANY d/b/a ERC, the
Defendant, Case No. 2:18-cv-00441-NIQA (E.D. Pa.), the Plaintiff
asks the Court to certify a class defined as:
"all consumers with a Pennsylvania address that paid a
convenience fee by phone to Defendant for payments for
personal, household, or family debts originating with
Comcast Cable Communications within one year prior to
the filing of the complaint."
The Plaintiff filed an initial Complaint on February 2, 2018,
alleging that Defendant violated the provisions of the Fair Debt
Collection Practices Act banning false, deceptive, or misleading
collection conduct and the collection of unauthorized collection
fees.[CN]
Attorneys for the Plaintiff:
Nicholas Linker, Esq.
Daniel Zemel, Esq.
Zemel Law LLC
1373 Broad Street, Suite 203-C
Clifton, NJ 07013
Telephone: (862) 227-3106
E-mail: nl@zemellawllc.com
EQT PRODUCTION: Settles Royalty Class Action for $53.5MM
--------------------------------------------------------
WBOY.com reports that a class action lawsuit against EQT Production
Company, that was originally filed in 2013 in Doddridge County, and
moved on to U.S. District Court, may be coming to an end.
On Feb. 13, EQT announced that a tentative settlement had been
reached with the West Virginia landowners who filed the suit.
The suit was focused around disputes over natural gas royalty
payments between 2009 and 2017.
Under the tentative settlement, EQT has agreed to put $53.5 million
into a fund that would disperse payments to the members of the
class. EQT has also agreed to stop taking future post production
deductions on leases determined by the Court to not permit
deductions. EQT and class representatives also agreed that future
royalty payments will be based on a "clearly defined index pricing
methodology."
Some of the class members can also choose EQT's standard lease
pooling modification in return for a 2% (up to a maximum of 18%)
increase in their royalty, according to a news release from EQT.
Class members would also have the chance to opt out of the
settlement, EQT officials said.
EQT CEO Robert McNally released this statement on the settlement:
"EQT is working diligently to resolve this matter with our
leaseholders and earn their confidence, as well as that of other
West Virginia residents and community leaders. This was an
opportunity to turn over a new leaf in our relationship with our
West Virginia leaseholders and this mutually beneficial agreement
demonstrates our renewed commitment to the state of West
Virginia."
The settlement will still need to be approved by the United States
District Court for the Northern District of West Virginia. [GN]
ESSA BANCORP: Continues to Defend RESPA-Related Suit
----------------------------------------------------
ESSA Bancorp, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on February 11, 2019, for the
quarterly period ended December 31, 2018, that the company
continues to defend itself against a lawsuit alleging violations of
the Real Estate Settlement Procedures Act (RESPA).
The Bank was named as a defendant in an action commenced on
December 8, 2016 by one plaintiff who will also seek to pursue this
action as a class action on behalf of the entire class of people
similarly situated. The plaintiff alleges that a bank previously
acquired by ESSA Bancorp in the process of making loans, received
unearned fees and kickbacks in violation of the Real Estate
Settlement Procedures Act.
In an order dated January 29, 2018, the court granted the Bank's
motion to dismiss the case. The plaintiff appealed the court's
ruling. The plaintiff submitted her brief in support of her appeal
in May 2018, and the Bank submitted its opposition brief in July
2018. The appellate court heard oral arguments in December 2018.
ESSA Bancorp said, "To the extent that pending or threatened
litigation could result in exposure to the Bank, the amount of such
exposure is not currently estimable."
ESSA Bancorp, Inc. operates as the holding company for ESSA Bank &
Trust that provides a range of financial services to individuals,
families, and businesses in Pennsylvania. ESSA Bancorp, Inc. was
founded in 1916 and is based in Stroudsburg, Pennsylvania.
EXECU-SEARCH GROUP: Bid to Strike Class Claims in Garcia Suit Nixed
-------------------------------------------------------------------
In the case, MANUEL GARCIA, on behalf of himself and those
similarly situated, Plaintiff, v. THE EXECU|SEARCH GROUP, LLC,
Defendant, Case No. 17cv9401 (S.D. N.Y.), Judge William H. Pauley,
III of the U.S. District Court for the Southern District of New
York (i) denied without prejudice ESG's motion to strike or dismiss
the class allegations, and (ii) denied the Plaintiff's request for
sanctions.
Garcia brings the putative class action under the Fair Credit
Reporting Act ("FCRA") against ESG. ESG is an executive
recruitment and temporary staffing agency. A round September 2017,
an ESG recruiter contacted Garcia about a temporary position in
which ESG would employ him to provide information technology
training services to nurses and doctors at various New
York-Presbyterian Hospital locations. Following a successful
interview, Garcia began work on Oct. 2, 2017. The next day, Garcia
received notice from ESG that his background check revealed open
criminal charges and that ESG terminated his employment because
Garcia could not work at New York-Presbyterian Hospital with those
charges. Although Garcia protested that the charges had already
been dismissed, ESG stood by its decision to terminate him based on
those charges listed in his consumer credit report.
Garcia claims that ESG violated 15 U.S.C. Section 1681b(b)(3)(A) of
the FCRA by failing to provide him with a copy of his consumer
credit report or a written description of his FCRA rights
sufficiently in advance of taking adverse employment action against
him based on that report. He claims that ESG provided his consumer
credit report and a written description of his rights only after he
had been terminated -- not to mention that the criminal history
information in the report was inaccurate.
He seeks to certify a class of employees and prospective employees
of ESG who were the subject of a consumer credit report and against
whom ESG took some adverse employment action based on information
in the report.
ESG moves to strike or dismiss Garcia's class allegations prior to
any motion to certify a class. In his opposition, Garcia seeks
sanctions under 28 U.S.C. Section 1927 against ESG for purportedly
stalling the litigation.
Judge Pauley finds that the language defining the putative class to
include individuals subject to an adverse action by ESG "based on
information contained in each consumer report" raises some concern
as to administrative feasibility. He exercises his discretion to
omit from the class definition the language "based on information
contained in each consumer report." This modification is made
without prejudice to the parties' ability to raise concerns of
ascertainability at the class certification stage, and should it
become necessary to modify the class definition going forward, the
Court has discretion to do so.
ESG also contends that the "class-based claims" must be dismissed
under Rule 12(b)(6) for failure to state a claim. ESG's argument
appears to proceed as follows: (1) the class claims must satisfy
the heightened pleading standards under the Supreme Court's Rule
12(b)(6) jurisprudence; (2) Rule 23(b)(3) class actions require
allegations of a common class-wide policy or practice that points
to a common issue of law or fact at the center of the dispute; and
(3) Garcia fails to allege facts plausibly suggesting that ESG
engaged in class-wide violations of the FCRA, and thus fails to
state a "claim for class certification." The Judge finds that
although a party seeking class certification must affirmatively
demonstrate compliance with Rule 23 by proving that there are in
fact common questions of law or fact, Garcia is not required to do
so at the pleading stage without the benefit of class discovery or
full class certification briefing.
Finally, ESG seeks to strike the class allegations from the
Complaint based on Garcia's inability to satisfy the prerequisites
set forth in Rule 23(a). The Judge finds that ESG's motion to
strike based on the failure to satisfy Rule 23(a)'s prerequisites
is procedurally premature and denied without prejudice to opposing
class certification on these grounds with the benefit of a complete
factual record.
As to Garcia's motion for sanctions under 28 U.S.C. Section 1927,
the Judge finds that Garcia's bid for sanctions principally rests
on ESG's purported misrepresentation of the holdings of several
cases, assertion of knowingly futile arguments, and refusal to
consent to Garcia's request to file an amended complaint. To be
sure, ESG's arguments are meritless. Accordingly, he declines to
impose sanctions under 28 U.S.C. Section 1927.
For the foregoing reasons, Judge Pauley denied without prejudice
ESG's motion to strike or dismiss the class allegations to
challenging whether Rule 23(a)'s prerequisites have been met at the
class certification stage. He also denied Garcia's application for
sanctions. The parties are directed to appear for a status
conference on March 15, 2019 at 4:00 p.m. The Clerk of Court is
directed to terminate the motion pending at ECF No. 29.
A full-text copy of the Court's Feb 19, 2019 Opinion and Order is
available at https://is.gd/KizmwR from Leagle.com.
Manuel Garcia, on behalf of himself and those similarly situated,
Plaintiff, represented by Edgar Mikel Rivera --
erivera@theharmanfirm.com -- The Harman Firm, PC, Owen Huntting
Laird -- olaird@veronicajunglaw.com -- Law Offices of Veronica S.
Jung PLLC & Walker Green Harman, Jr. -- wharman@theharmanfirm.com
-- The Harman Firm PC.
The Execu-Search Group, LLC, Defendant, represented by Gregory
Bertram Reilly, III -- greilly@bsk.com -- Bond, Schoenek & King,
Aisling Margaret McAllister -- amcallister@bsk.com -- Bond,
Schoenek & King & Samuel G. Dobre -- sdobre@bsk.com.
EXTENDED LIFE: Employee Class Certified in Hawkins Suit
-------------------------------------------------------
ANTHONY HAWKINS, On behalf of himself and other members of the
general public similarly situated, the Plaintiff, vs. EXTENDED LIFE
HOMECARE LTD., et al., the Defendants, Case No.
2:18-cv-00344-ALM-EPD (S.D. Ohio), the Hon. Algenon L. Marbley
entered an order:
1. granting Plaintiff's motion to conditionally certify a
collective action comprised of:
"all current and former employees and independent contractors
of Defendants who: a) Worked as home health aides, support
associates, caregivers, or other employees or independent
contractors who provided companionship services,
rehabilitation services, domestic services, home care, and/or
other in-home services; b) Worked over 40 hours in any
workweek; and c) Were not paid one-and-one-half times their
regular rate of pay for the overtime hours they worked during
the three years preceding the filing date of this Motion and
continuing through the date of final disposition of this
case"; and
2. directing Defendant to provide to Plaintiff an Excel
spreadsheet containing the names, positions of employment,
last known mailing addresses, last known telephone numbers,
email addresses, work location(s), and dates of employment of
those individuals described by the collective action.
The Plaintiff worked for Defendant Extended Life Home Care, Ltd. as
a home health aid. He alleges violations of the Fair Labor
Standards Act in that the Defendant failed to pay him overtime at a
rate of one-and-one-half times the regular rate when he worked in
excess of 40 hours per week. He also alleges that the Defendant
failed to pay overtime to others who worked for ELHC and who are
thus similarly situated to him.[CC]
EZCORP INC: Court Certifies Class in Rooney Securities Fraud Suit
-----------------------------------------------------------------
In the case, JOHN ROONEY, Individually and on Behalf of All Others
Similarly Situated, Plaintiff, v. EZCORP, INC. and MARK E.
KUCHENRITHER, Defendants, Cause No. A-15-CA-00608-SS (W.D. Tex.),
Judge Sam Sparks of the U.S. District Court for the Western
District of Texas, Austin Division, granted the Plaintiff's motion
for class certification.
The case is a securities fraud class action brought on behalf of
all persons who purchased Class A common stock of EZCOR -- a
company which provides "instant cash" services like payday loans
and pawn loans -- between Jan. 28, 2014 and Oct. 20, 2015. The
Plaintiff alleges that during the Class Period, EZCORP CEO Mark
Kuchenrither made material misrepresentations to shareholders
regarding the impact of a subsidiary's loan portfolio upon EZCORP's
reported financials and thereby violated §§ 10(b) and 20(a) of
the Securities Exchange Act of 1934 and SEC Rule 10b-5.
between January 2012 and June 2014, EZCORP acquired a 94 percent
ownership interest in Grupo Finmart. Grupo Finmart is a Mexican
company which issues small consumer loans to Mexican governmental
employees. The loans issued by Grupo Finmart are backed by payroll
withholding agreements with Mexican employers, and under these
agreements, interest and principal payments are collected by the
employers through payroll deductions and then remitted to Grupo
Finmart. Plaintiff alleges that throughout the Class Period,
EZCORP's lack of internal controls over financial reporting gave
rise to two primary accounting errors in connection with Grupo
Finmart's loans.
First, the Plaintiff alleges EZCORP failed to properly account for
Grupo Finmart's non-performing payroll loans. Second, he contends
EZCORP failed to properly account for the sale of Grupo Finmart
loans. The statements the Plaintiff identifies as misleading are
taken from EZCORP's press releases, conference calls, and SEC forms
disclosing EZCORP's financial results during the Class Period.
These statements deal with EZCORP's financial results during the
fourth quarter of 2013 (4Q13), the 2014 fiscal year (FY2014), and
the first quarter of 2015 (1Q15).
In general, the statements fall into two categories (1) statements
relating to the overstatement of EZCORP's financial results, as a
result of EZCORP's failure to properly account for the Loan Sales
and Non-Performing Loans, and (2) statements relating to the nature
of the Loan Sales. According to the Plaintiff, Kuchenrither knew
all of the statements described above were materially false and
misleading at the time they were made.
The Plaintiff filed the lawsuit on July 20, 2015, alleging that the
Defendants' false and misleading statements caused EZCORP's stock
to trade at artificially inflated prices and that the Plaintiff
suffered financial losses following the release of EZCORP's
restated financial reports. The Plaintiff now moves for class
certification under Federal Rule of Civil Procedure 23(b)(3).
The Plaintiff specifically seeks (1) certification of a class
consisting of all persons and entities that purchased or otherwise
acquired EZCORP, Inc. Class A common stock between Jan. 28, 2014
and Oct. 20, 2015, inclusive, and were damaged thereby; and (2) the
appointment of the Plaintiff as the representative and the
appointment of Block & Leviton LLP and Glancy Prongay & Murray LLP
as the Class Counsel and Kendall Law Group, PLLC as the Liaison
Counsel.
Judge Sparks concludes that the Plaintiff's motion for class
certification should be granted because he has met all predicate
requirements for bringing a class action under Rule 23(b)(3).
Accordingly, he granted the Plaintiff's Motion for Class
Certification.
The Judge certified a class consisting of all persons and entities
that purchased or otherwise acquired EZCORP, Inc. Class A common
stock between Jan. 28, 2014 and Oct. 20, 2015, inclusive, and were
damaged thereby.
He appointed Lead Plaintiff John Rooney as the Class
Representative; the law firms of Block & Leviton LLP and Glancy
Prongay & Murray LLP as the Class Counsel; and The Kendall Law
Group, PLLC as the Liaison Counsel for the Class.
A full-text copy of the Court's Feb 19, 2019 Order is available at
https://is.gd/TEf8Pl from Leagle.com.
John Rooney, Consol Plaintiff, represented by Charles H. Linehan,
Glancy Prongay & Murray LLP, Jacob Allen Walker --
Jake@blockesq.com -- Block & Leviton LLP, Jamie Jean McKey --
jmckey@kendalllawgroup.com -- Kendall Law Group PLLC, Jeffrey C.
Block -- Jeff@blockesq.com -- Block & Leviton LLP, Joseph D. Cohen
-- jcohen@glancylaw.com -- Glancy Prongay & Murray LLP & Joe
Kendall -- jkendall@kendalllawgroup.com -- Kendall Law Group,
PLLC.
EZCORP, Inc., Defendant, represented by Jennifer Barrett Poppe --
jpoppe@velaw.com -- Vinson & Elkins, Michael C. Holmes --
mholmes@velaw.com -- Vinson & Elkins, L.L.P. & Stephen S. Gilstrap
-- sgilstrap@velaw.com -- Vinson & Elkins LLP.
Mark E. Kuchenrither, Defendant, represented by Alithea Z. Sullivan
-- asullivan@ebbklaw.com -- Ewell, Brown & Blanke, LLP, Gary Ewell,
Ewell, Brown, Blanke & Knight LLP & Jennifer Barrett Poppe, Vinson
& Elkins.
FARMERS RESTAURANT: May 30 Fairness Hearing on Stephens Settlement
------------------------------------------------------------------
In the case, SHAYN STEPHENS et al., Plaintiffs, v. FARMERS
RESTAURANT GROUP et al., Defendants, Civil Action No. 17-1087 (TJK)
(D. D.C.), Judge Timothy J. Kelly of the U.S. District Court for
the District of Columbia granted the Plaintiffs' Consent Motion for
Certification of the Rule 23 Class Action for Settlement Purposes,
Approval of Notices, and Preliminary Approval of the Settlement
Agreement.
The Plaintiffs in the action, who worked at several restaurants
operated by the Defendants in Virginia, Maryland, and the District
of Columbia, bring claims under the Fair Labor Standards Act
("FLSA") and District of Columbia and Maryland law, alleging the
Defendants failed to comply with federal and state minimum-wage,
overtime-pay, and sick-leave requirements. The parties have
reached a potential settlement agreement resolving all claims, and
they now seek preliminary approval of that agreement from the
Court. As such, before the Court is the Plaintiffs' Consent Motion
for Certification of the Rule 23 Class Action for Settlement
Purposes, Approval of Notices, and Preliminary Approval of the
Settlement Agreement.
The two putative Rule 23 settlement classes, under Maryland and
District of Columbia law, respectively, will consist of 862 current
and former servers who worked in one of the Defendants' restaurants
in either Maryland or the District of Columbia between June 7,
2014, and July 20, 2018. The classes will also include those 119
individuals who have already opted in to the collective action,
with the exception of those individuals who only worked in the
Defendants' Virginia locations.
Within five business days of certification of the Rule 23 classes
and preliminary approval of the Agreement, a notice will be sent to
all 862 putative class members describing the terms of the
Agreement and their various rights and obligations. The putative
Rule 23 class members will have 45 days from the date the notices
are mailed to opt out of the class action settlement. A separate
notice of settlement will be sent to those 119 individuals who
opted in to the collective action.
The Defendants have agreed to deposit a total of $1.49 million in a
settlement fund to be distributed as described. The class counsel
will receive an award of $388,484 in attorney's fees and $8,516 for
litigation expenses, and the settlement administrator will be paid
in an amount not to exceed $35,000 for its services. Each of the
seven named Plaintiffs, as representatives of the collective action
and Rule 23 classes, will receive a service award of $5,000. The
119 individuals who opted in to the collective action will receive
a total of $498,715, to be distributed to each individual based on
the total number of weeks that he or she worked as a server during
the applicable time period. The remaining $524,285 will be
allocated to the 862 putative Rule 23 class members and distributed
to each individual who timely submits a claim form. No individual
who opted in to the collective action will recover from this
amount. And any unclaimed portion of the amount allocated to the
Rule 23 class members will revert to the Defendants.
Following preliminary approval of the settlement, and in accordance
with Federal Rule of Civil Procedure 23(e)(2), the Court will
conduct a fairness hearing to determine whether to finally approve
the settlement agreement. The members of the collective action or
the Rule 23 classes may submit written objections to the proposed
settlement and present objections orally at the hearing.
Judge Kelly granted the Plaintiffs' motion. He provisionally
certified for settlement purposes only the following classes:
a. Rule 23 Maryland Class includes all current and former
servers of the Defendants who worked at any of the Defendants'
restaurants in Maryland during all of some part of the time period
from June 7, 2014, through July 20, 2018, and covering claims
brought under the MWHL and the MWPCL.
b. Rule 23 D.C. Class includes all the current and former
servers of the Defendants who worked at any of the Defendants'
restaurants in the District of Columbia during all of some part of
the time period from June 7, 2014, through July 20, 2018, and
covering claims brought under the DCMWA and the DCSLA.
The Judge preliminarily approved the proposed settlement agreement,
and approved the proposed notices of settlement for the collective
action members, and for the Rule 23 class members.
He appointed Rust Consulting as the Settlement Administrator;
Vanessa Calvillo as tje Class Representative for the Rule 23
Maryland Class; Vanessa Calvillo and Shayn Stephens as the Class
Representatives for the Rule 23 D.C. Class; and Molly A. Elkin as
the Class Counsel.
The Settlement Administrator will mail the approved notices to the
collective action members and the putative Rule 23 class members no
later than Feb. 22, 2019. A fairness hearing to determine whether
to finally approve the proposed settlement agreement will be held
on May 30, 2019, at 10:00 a.m. in Courtroom 11.
A full-text copy of the Court's Feb. 15, 2019 Memorandum Opinion
and Order is available at https://is.gd/aryKie from Leagle.com.
SHAYN STEPHENS, ANITA CLARK, VANESSA CALVILLO, SYLVIA RACHAELl
KROHN, DESMOND PITT & JEANIE WILLIG, Plaintiffs, represented by
Gregory K. McGillivary -- gkm@wmlaborlaw.com -- WOODLEY &
MCGILLIVARY, LLP, Theodore R. Coploff -- trc@wmlaborlaw.com --
WOODLEY & MCGILLIVARY, Sarah M. Block, WOODLEY & MCGILLIVARY &
Molly Ann Elkin -- mae@wmlaborlaw.com -- WOODLEY & MCGILLIVARY.
AUSTIN HALL & SHANNON STOREY, Plaintiffs, represented by Sarah M.
Block, WOODLEY & MCGILLIVARY & Molly Ann Elkin, WOODLEY &
MCGILLIVARY.
FARMERS RESTAURANT GROUP, DANIEL SIMON & MICHAEL VUCUREVICH,
Defendants, represented by Joy Catherine Einstein --
jeinstein@shulmanrogers.com -- SHULMAN, ROGERS, GANDAL, PORDY &
ECKER. P.A. & Meredith Sarah Campbell --
mcampbell@shulmanrogers.com -- SHULMAN, ROGERS, GANDAL, PORDY &
ECKER, P.A.
FASTKIT INC: Carmona Hits Misclassification, Seeks Overtime Pay
---------------------------------------------------------------
Ailyn Carmona, and all others similarly situated under 29 U.S.C.
216(b), Plaintiff(s), v. Fastkit, Inc. and Jose Fernandez,
Defendants, Case No. 19-cv-20421 (S.D. Fla., January 31, 2019),
seeks all available relief, including compensation, liquidated
damages, attorneys' fees, and costs, pursuant to the Fair Labor
Standards Act.
Fastkit provides various products and services to the hospitality,
food and beverage, cosmetics, automotive, healthcare and financial
industries and focuses on providing corporate and limited liability
company starter kits, corporate seals, certificates, custom
packaging, custom binders, sales kits and menus. Carmona assisted
in the sale of Fastkit products. She claims to have been
misclassified as an independent contractor thus denied the
mandatory overtime rates and failure to pay payroll taxes and state
unemployment taxes. [BN]
The Plaintiff is represented by:
Jordan Richards, Esq.
USA EMPLOYMENT LAWYERS - JORDAN RICHARDS, PLLC
805 E. Broward Blvd. Suite 301
Fort Lauderdale, Florida 33301
Tel: (954) 871-0050
Email: Jordan@jordanrichardspllc.com
Livia@jordanrichardspllc.com
Melissa@jordanrichardspllc.com
Jake@jordanrichardspllc.com
FEDEX GROUND PACKAGE: Ramirez Suit Asserts FCRA Violation
---------------------------------------------------------
Carlos E. Ramirez, on behalf of himself and all similarly situated
individuals, Plaintiff, v. FedEx Ground Package System, Inc.,
Defendant, Case No. 8:19-cv-00551 (M.D. Fla., March 5, 2019) is an
action against FedEx Ground for violations of the Fair Credit
Reporting Act ("FCRA").
Plaintiff brings nationwide class claims against FedEx Ground
because, as a systematic omission in its hiring process, FedEx
Ground failed to provide Plaintiff and other consumers against whom
it took adverse employment actions with a copy of the background
report or a summary of rights under the FCRA before taking that
adverse employment action. This claim involves significant
involvement in FedEx's hiring process by non-party First Advantage
Background Services Corporation.
In this case, First Advantage prepared a background report for
FedEx Ground which deemed Plaintiff "Ineligible" for hire at FedEx
based on First Advantage's inaccurate reporting that Plaintiff had
been convicted of petit theft. In fact, the theft conviction First
Advantage attributed to Plaintiff occurred before he had immigrated
to the United States. That conviction belongs to a stranger and not
to Plaintiff, as Plaintiff has no criminal history, asserts the
complaint.
FedEx Ground automatically adopted First Advantage's eligibility
adjudication without any further interaction with Plaintiff,
denying Plaintiff for employment based on the inaccurate First
Advantage reporting, says the complaint.
Plaintiff Carlos Ramirez is a "consumer" as protected and governed
by the FCRA.
Defendant FedEx Ground is a corporate entity that has its primary
offices in Moon Township, Pennsylvania.[BN]
The Plaintiff is represented by:
Brandon J. Hill, Esq.
Luis A. Cabassa, Esq.
WENZEL FENTON CABASSA, P.A.
1110 North Florida Ave., Suite 300
Tampa, FL 33602
Phone: 813-224-0431
Facsimile: 813-229-8719
Email: lcabassa@wfclaw.com
bhill@wfclaw.com
twells@wfclaw.com
FLOWCO PRODUCTION: Brigham Seeks to Recover Unpaid Overtime
-----------------------------------------------------------
Walter Brigham, individually and on behalf of all those similarly
situated Plaintiff, v. Flowco Production Solutions, LLC,
Defendants, Case No. 19-cv-00342 (S.D. Tex., January 31, 2019),
seeks to recover overtime compensation for all unpaid hours worked
in excess of forty hours in any workweek at the rate of
one-and-one-half times their regular rates, liquidated damages,
reasonable attorneys' fees, expert fees, costs and expenses of this
action, prejudgment and post-judgment interest and such other
relief pursuant to the Fair Labor Standards Act.
Flowco Production Solutions provides well de-liquification and
production optimization for oil and gas producers where Brigham
worked as a nitrogen operator, operating, monitoring and testing
well sites in the oil field. Brigham would work at least 84 hours
and often times many more, without being paid overtime
compensation. [BN]
Plaintiff is represented by:
Chris R. Miltenberger, Esq.
THE LAW OFFICE OF CHRIS R. MILTENBERGER, PLLC
1340 N. White Chapel, Suite 100
Southlake, TX 76092-4322
Tel: (817) 416-5060
Fax: (817) 416-5062
Email: chris@crmlawpractice.com
GEORGE'S INC: Rodriguez et al. Seek OT Pay for Field Technicians
----------------------------------------------------------------
EVANGELINE RODRIGUEZ and JASON DAVIDSON, Individually and on Behalf
of Others similarly Situated, the Plaintiffs, vs. GEORGE'S, INC.,
the DEFENDANT, Case 5:19-cv-05035-PKH (W.D. Ark., Feb. 19, 2019),
seeks declaratory judgment, monetary damages, liquidated damages,
prejudgment interest, and costs, including a reasonable attorney's
fee as a result of Defendant's failure to pay Plaintiff and other
field technicians and similar positions overtime compensation for
hours worked in excess of 40 hours per week, under the Fair Labor
Standards Act, Family Medical Leave Act, and Arkansas Minimum Wage
Act.
According to the complaint, the Plaintiffs have supervisory
functions, and the Defendant has classified them as exempt from the
overtime requirements of the FLSA and the AMWA and has not paid
them overtime premiums for the hours they worked in excess of 40 in
a workweek, the lawsuit says.
The Defendant is a poultry production and processing plant.[BN]
Attorneys for the Plaintiff:
Lydia H. Hamlet, Esq.
Josh Sanford, Esq.
SANFORD LAW FIRM, PLLC
One Financial Center
650 South Shackleford Road, Suite 411
Little Rock, AR 72211
Telephone: (501) 221-0088
Facsimile: (888) 787-2040
E-mail: lydia@sanfordlawfirm.com
josh@sanfordlawfirm.com
GEORGIA POWER: Faces Class Action Over Inflated Franchise Fees
--------------------------------------------------------------
Matt Kempner, writing for The Atlanta Journal-Constitution, reports
that a Fulton County judge has granted class-action status in a
long-running lawsuit claiming Georgia Power overcharged customers
for more than a decade. The status means the case now covers
virtually all of the company's 2.5 million customers statewide, a
swipe with somewhat rare sweep against Georgia's largest utility.
But the case, first filed in 2011, is far from over. It goes before
the state's utility regulator -- the Georgia Public Service
Commission -- for comment before being heard by Fulton Superior
Court Judge Rachel Krause. The suit argues that Georgia Power
continues to inflate municipal franchise fees that are included in
monthly electric bills, assessing them not just based on
electricity revenue but incorrectly also on a financing fee tied to
the Vogtle nuclear project as well as on a fee for environmental
compliance.
The suit doesn't question the nuclear or environmental fees
themselves, which also are part of Georgia Power bills. Nor does it
challenge the overall Vogtle nuclear expansion. John Salter, an
attorney arguing the case for plaintiffs, said the cumulative
billing overages since 2008 could be "easily exceeding tens of
millions of dollars."
Georgia Power spokesman Jeff Wilson wrote in an email on Feb. 18
that the company "believes the plaintiffs' claims have no merit and
the company will continue to vigorously defend itself in this
matter." He added that Georgia Power will continue to
"appropriately collect revenue via the Municipal Franchisee Fee
tariff that has been reviewed and approved by the Georgia PSC." The
judge's ruling expands the case from five named defendants. They
are represented by former top Georgia political leaders from
different parties. The suit was filed by Republican ex-House
Speaker Glenn Richardson and joined by former Democratic Gov. Roy
Barnes.
If they win, the ultimate payout won't be a big financial windfall
to individual consumers, Mr. Richardson said on Feb. 18. Still, he
said, "it is huge for ratepayers who have very little voice in this
whole process . . . It says you can stand up to Georgia Power."
[GN]
GRAYCO COMMUNICATIONS: George's Bid for Class Certification OK'd
----------------------------------------------------------------
The Hon. Lance M. Africk granted without opposition the Plaintiffs'
motion for conditional class certification filed in the lawsuit
styled TONY JOSEPH GEORGE, ET AL. v. GRAYCO COMMUNICATIONS LP, ET
AL., Case No. 2:18-cv-08953-LMA-JVM (E.D. La.).
The motion to continue the submission date for the motion for
conditional class certification, and the motion to expedite
consideration are dismissed as moot.
The Plaintiffs' counsel are directed to send counsel for Grayco
Communications, L.P. and Protek Communications, Inc., the
Plaintiffs' proposed notice, to be sent to potential opt-in
plaintiffs.[CC]
GREENSPIRE HOLDINGS: Navarro Sues Over TCPA Violation
-----------------------------------------------------
Carolyn Navarro, individually and on behalf of all others similarly
situated, Plaintiff, v. Greenspire Holdings, LLC d/b/a Greenspire,
and Does 1 through 10, inclusive, and each of them, Defendant, Case
No. 2:19-cv-01614 (C.D. Cal., March 5, 2019) seeks damages and any
other available legal or equitable remedies resulting from the
illegal actions of the Defendant, in negligently, knowingly, and/or
willfully contacting Plaintiff on Plaintiff's home telephone in
violation of the Telephone Consumer Protection Act ("TCPA") and
related regulations, specifically the National Do-Not-Call
provisions, thereby invading Plaintiff's privacy.
Plaintiff has received numerous solicitation calls from Defendant
within a 12-month period. Plaintiff did not have an established
business relationship with the Defendant during the time of the
solicitation calls from the Defendant. Plaintiff did not give the
Defendant prior express written consent for the Defendant to call
Plaintiff's home telephone for marketing or solicitation purposes.
Despite this, Defendant continued to call Plaintiff in an attempt
to solicit its services and in violation of the National
Do-Not-Call provisions of the TCPA thus violating Plaintiff's
privacy, says the complaint.
Plaintiff, Carolyn Navarro is a natural person residing in West
Covina, California.
Defendant, Greenspire Holdings, LLC d/b/a Greenspire is a solar and
energy company.[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
Phone: (323) 306-4234
Fax: (866) 633-0228
Email: tfriedman@toddflaw.com
abacon@toddflaw.com
HALLIBURTON CO: Bid to Dismiss Magruder Class Action Underway
-------------------------------------------------------------
Halliburton Company said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on February 13, 2019, for
the fiscal year ended December 31, 2018, that the company's motion
to dismiss the repleaded Magruder v. Halliburton Co., et. al., is
still pending.
Commencing in June 2002, a number of class action lawsuits were
filed against the company in federal court alleging violations of
the federal securities laws arising out of its change in accounting
for revenue on long-term construction projects, its 1998
acquisition of Dresser Industries, Inc. and its reserves for
asbestos liability exposure.
In December 2016, the company reached an agreement to settle these
lawsuits and in July 2017, the district court issued final approval
of the settlement.
The settlement resolves all pending cases other than Magruder v.
Halliburton Co., et al. (the Magruder case).
The allegations in the Magruder case arise out of the same general
events described, but for a later class period, December 8, 2001 to
May 28, 2002. There has been limited activity in the Magruder case.
In March 2009, the company's motion to dismiss was granted, with
leave to replead. In March 2012, plaintiffs filed an amended
complaint and in May 2012, the company filed a motion to dismiss.
That motion was granted in May 2018, with leave to replead some of
the claims.
An amended complaint was filed in June 2018 and the company filed
another motion to dismiss which remains pending.
Halliburton said, "We cannot predict the outcome or consequences of
this case, which we intend to vigorously defend."
Halliburton Company provides a range of services and products to
oil and natural gas companies worldwide. Halliburton Company was
founded in 1919 and is headquartered in Houston, Texas.
HIKVISION USA: Fails to Pay Overtime and Meal Premiums, Cao Says
----------------------------------------------------------------
JENNIFER CAO, individually, and on behalf of other members of the
general public similarly situated v. HIKVISION USA, INC., a
California corporation; and DOES 1 through 100, inclusive, Case No.
19STCV06379 (Cal. Super., Los Angeles Cty., February 26, 2019),
alleges that the Defendants fail to, among other things, pay
overtime wages and meal premiums to the Plaintiff and the other
class members for all overtime hours worked.
Hikvision USA, Inc., is a California corporation. The Company was
founded in 2007 and is based in City of Industry, California. The
true names and capacities of the Doe Defendants are unknown to the
Plaintiff.
Hikvision develops and manufactures video surveillance products.
The Company offers compression cards, DVR, video servers, IP
modules, and analog and network cameras. Hikvision operates as a
subsidiary of Hangzhou Hikvision Digital Technology Co., Ltd.[BN]
The Plaintiff is represented by:
Edwin Aiwazian, Esq.
LAWYERS for JUSTICE, PC
410 West Arden Avenue, Suite 203
Glendale, CA 91203
Telephone: (818) 265-1020
Facsimile: (818) 265-1021
E-mail: edwin@lfjpc.com
HILL'S PET: Hall Sues Over Toxic Levels of Vitamin D in Dog Food
----------------------------------------------------------------
GEORGEANNE HALL individually and on behalf of a class of similarly
situated individuals v. HILL'S PET NUTRITION, INC., and HILL'S PET
NUTRITION SALES, INC., Case No. 2:19-cv-01423 (C.D. Cal., February
26, 2019), arises from the Defendants' alleged misrepresentation of
their pet foods sold under the brand names Hill's Prescription Diet
and Hill's Science Diet.
Ms. Hall accuses the Defendants of engaging in negligent, reckless,
and/or intentional practice of misrepresenting, failing to test
for, and failing to fully disclose the presence of toxic levels of
Vitamin D in their Contaminated Dog Foods and for selling
Contaminated Dog Foods that are adulterated and do not conform to
the labels, packaging, advertising, and statements throughout the
United States.
Hill's Pet Nutrition, Inc., is a Delaware corporation with its
principal place of business located in Topeka, Kansas. Hill's Pet
Nutrition Sales, Inc., is a Delaware corporation with its principal
place of business located in Kansas. Hill's Pet Nutrition Sales is
authorized by the California Secretary of State to do business
within the state of California.
The Defendants manufacture, market, advertise, label, distribute,
and sell pet food under the brand names Hill's Prescription Diet
and Hill's Science Diet dog foods throughout the United States,
including in this District.[BN]
The Plaintiff is represented by:
Rebecca A. Peterson, Esq.
Robert K. Shelquist, Esq.
LOCKRIDGE GRINDAL NAUEN P.L.L.P.
100 Washington Avenue South, Suite 2200
Minneapolis, MN 55401
Telephone: (612) 339-6900
Facsimile: (612) 339-0981
E-mail: rapeterson@locklaw.com
rkshelquist@locklaw.com
- and -
Conrad B. Stephens, Esq.
STEPHENS & STEPHENS LLP
505 South McClelland Street
Santa Maria, CA 93454
Telephone: (805) 922-1951
Facsimile: (805) 922-8013
E-mail: conrad@stephensfirm.com
- and -
Kevin A. Seely, Esq.
Steven M. McKany, Esq.
ROBBINS ARROYO LLP
5040 Shoreham Place
San Diego, CA 92122
Telephone: (619) 525-3990
Facsimile: (619) 525-3991
E-mail: kseely@robbinsarroyo.com
smckany@robbinsarroyo.com
- and -
Charles J. Laduca, Esq.
Katherine Van Dyck, Esq.
CUNEO GILBERT & LADUCA, LLP
4725 Wisconsin Ave. NW, Suite 200
Washington, DC 20016
Telephone: (202) 789-3960
Facsimile: (202) 789-1813
E-mail: kvandyck@cuneolaw.com
charles@cuneolaw.com
- and -
Joseph J. Depalma, Esq.
Susana Cruz Hodge, Esq.
LITE DEPALMA GREENBERG, LLC
570 Broad Street, Suite 1201
Newark, NJ 07102
Telephone: (973) 623-3000
E-mail: jdepalma@litedepalma.com
scruzhodge@litedepalma.com
HOMEADVISOR INC: Sued by Hobbs Over Unsolicited Marketing Calls
---------------------------------------------------------------
KEITH HOBBS, individually and on behalf of all others similarly
situated v. HOMEADVISOR, INC. a Delaware corporation, Case No.
1:19-cv-00571-REB (D. Colo., February 26, 2019), seeks to stop the
Defendant's practice of making unsolicited telemarketing calls to
the cellular telephones of consumers nationwide and to obtain
redress pursuant to the Telephone Consumer Protection Act for all
persons injured by its conduct.
HomeAdvisor is a corporation organized and existing under the laws
of the state of Delaware with its headquarters located in Golden,
Colorado.
HomeAdvisor -- https://www.homeadvisor.com/ -- is an online
marketplace, where consumers seeking home repairs are paired with
contractors in their geographic area.[BN]
The Plaintiff is represented by:
Steven L. Woodrow, Esq.
Patrick H. Peluso, Esq.
Taylor T. Smith, Esq.
Stephen A. Klein, Esq.
WOODROW & PELUSO, LLC
3900 E. Mexico Avenue, Suite 300
Denver, CO 80210
Telephone: (720) 213-0675
E-mail: swoodrow@woodrowpeluso.com
ppeluso@woodrowpeluso.com
tsmith@woodrowpeluso.com
sklein@woodrowpeluso.com
HYUNDAI MOTOR: Settles Class Action Over Shattered Sunroofs
-----------------------------------------------------------
Jung Min-hee, writing for Business Korea, reports that Hyundai
Motor has reached a tentative settlement with U.S. consumers who
filed a class action suit for damage from shattered panoramic
sunroofs mounted on some Hyundai models.Hyundai Motor has reached a
provisional settlement in a class action suit filed by U.S.
consumers to get compensation for damage from shattered panoramic
sunroofs.
These customers filed a class action lawsuit with the Federal
District Court in Central California, the United States in December
2015, claiming that panoramic sunroofs mounted on some Hyundai
models such as the Sonata, the Tucson and the Santa Fe made between
2010 and 2016 suddenly exploded without any reason.
They demanded a total of US$5.4 million in damages, asserting that
Hyundai Motor was aware of the serious safety problem but put it
under wraps. They also said they paid US$1,000 or more to repair
their sunroofs as the problem was not covered by warranties.
Hyundai Motor said that the panoramic sunroof itself had no
problems, that very few customers have experienced such problems,
and that no serious injuries or accidents were reported due to the
problem.
However, Hyundai Motor agreed with the plaintiffs to double the
warranty period to 10 years or 120,000 miles and provide warranties
even when the sunroofs are damaged by stones or falling objects.
The carmaker also promised to pay in full for customers who paid
for repairing and towing their cars and using rental cars due to
the explosion of their sunroofs. If sunroof explosion shocked or
inconvenienced customers, they will be additionally paid US$200.
In addition, customers who sold off Hyundai Motor vehicles and buy
vehicles of other companies due to sunroof damage will be able to
claim up to US$600. The agreement also said that Hyundai Motor
would pay US$1,000 to customers who purchased non-Hyundai vehicles
without panoramic sunroofs.
The models subject to the compensation deal included the Sonata
Hybrid (2011-2016), the Tucson (2010-2016), the Sonata (2012-2016),
the Velostar (2012-2016), the Santa Fe and the Santa Fe Sports
(2013-2016), the Elantra GT (2013-2016), the Azera (2012-2016) and
the Genesis (2015-2016). The settlement will be finalized after a
review by the court. [GN]
IAN MOTOS: Alawamleh Sues Over Unpaid Minimum, Overtime Wages
-------------------------------------------------------------
Mohammad Alawamleh, on behalf of all other similarly situated
and/or aggrieved employees of Defendants in the State of
California, Plaintiff, v. Ian Motos d/b/a Baiano Pizzeria Hayes
Valley, and Does 1 through 50, Inclusive, Defendants, Case No.
CGC-19-574299 (Cal. Super. Ct., San Francisco Cty., March 5, 2019)
is an individual and putative class action against the Defendants
for engaging in a pattern of wage and hour violations under the
California Labor Code and the applicable Industrial Welfare
Commission ("IWC") Wage Orders.
The Defendants failed to properly pay Plaintiff and other similarly
situated and/or aggrieved employees at least minimum, regular and
overtime wages owed. The Defendants regularly required Plaintiff
and other similarly situated and/or aggrieved employees to work off
the clock, says the complaint.
Plaintiff is a former employee of Defendants, who was employed as a
general laborer and worked for Defendants in a non-exempt position
in San Francisco County.
Defendant is a California resident who operates restaurants located
in San Francisco County, California.[BN]
The Plaintiff is represented by:
Graham S.P. Hollis, Esq.
Laura M. Supanich, Esq.
GRAHAMHOLLIS APC
3555 Fifth Avenue Suite 200
San Diego, CA 92103
Phone: 619.692.0800
Facsimile: 619.692.0822
Email: ghollis@grahamhollis.com
lsupanich@grahamhollis.com
INDEPENDENT NATIONAL: Faces Class Action Election Postponement
--------------------------------------------------------------
Shola Oyeyipo, writing for This Day, reports that following the
postponement of the presidential and National Assembly elections
nationwide, some groups are moving for a class action against the
Independent National Electoral Commission (INEC), with a demand for
financial compensation for Nigerians arising from losses suffered
due to the postponement of the polls.
They will also be demanding an unreserved apology to the citizenry
by the electoral umpire.
A Jean Monnet professor and current Director of studies at Centre
for International Advanced and Professional Studies (CIAPS), Prof.
Anthony Kila, said his organisation is already planning how to
ensure that people affected by the postponement get financial
reward.
The renowned social commentator, who is also the founder of Common
Voice Nigeria, a non-governmental organisation (NGO) designed to
give common voice to Nigeria, revealed that the platform is
instituting a legal action against INEC over the postponement.
According to Prof. Kila, "My group, Common Voice Nigeria, in
collaboration with a growing number of civil society organisations
(CSOs) is planning a class action against INEC."
He said: "Anyone that has suffered a demonstrable loss due to this
abrupt rescheduling of postponement should please get in touch and
join the law suit."
Buttressing Prof. Kila's view, an Abuja-based lawyer and former
National Secretary, Labour Party (LP), Dr. Kayode Ajuola said
having put candidates, electorate and observers at risks of various
proportions to get to different locations for voting, they deserve
apologies from INEC.
"Observers with calculated expenses, candidates whose budgets have
been tampered with, innocent corps member who bear huge risks in
the interest of the country, all deserve a word of consolation.
"It is unacceptable for INEC, who solely bears the blame for this
embarrassing development to have merely announced a reschedule
which comes with such astromical costs and consequences without a
word to the effect of penitence and sore apologies," he said.
He maintained that "INEC, having shifted its timetable, lacks
justification to shut out parties/candidates for failure to meet
deadlines for presenting candidates as seen in Rivers, Zamfara and
other states."
He queried: "Does INEC consider these dear costs? Does it weigh the
worth of these costs and thinks of mitigating them? These are
queries INEC must act on immediately." [GN]
INDIA GLOBALIZATION: Continues to Defend Harris-Carr Suit
---------------------------------------------------------
India Globalization Capital, Inc. said in its Form 10-Q Report
filed with the Securities and Exchange Commission on February 12,
2019, for the quarterly period ended December 31, 2018, that the
company continues to defend the case, Harris-Carr v. India
Globalization Capital, Inc., et al., 8:18-cv-03408 (U.S. District
Court for the District of Maryland).
In general terms, the plaintiff alleges that the Company, Ram
Mukunda, and Claudia Grimaldi made materially false and misleading
statements regarding the Company's business, operational and
compliance policies. It is alleged in the Complaint:
"Specifically, Defendants made false and/or misleading statements
and/or failed to disclose that: (i) [IGC] substantially
discontinued the business that it conducted at the time it began
trading on the NYSE American; (ii) the Company had become engaged
in ventures or promotions which have not developed to a commercial
stage; (iii) consequently, the Company is not an operating company
for the purposes of continued trading and listing on the NYSE
American; and (iv) as a result, [IGC's] public statements were
materially false and misleading at all relevant times."
The suit specifically claims that misleading representations
appeared in the 2018 10-K related to the Company's two business
lines, infrastructure and alternative therapies/complementary and
alternative medicine; the Company's competitive advantage in the
complementary and alternative medicine market; and the Company's
CEO's experience, and a September 25, 2018 press release related to
the Company's efforts to enter the hemp/CBD-infused energy drink
space.
India Globalization Capital, Inc. engages in the development and
commercialization of cannabis-based therapies to treat Alzheimer's,
pain, nausea, eating disorders, several end points of Parkinson's,
and epilepsy in humans, dogs, and cats. The company was founded in
2005 and is based in Bethesda, Maryland.
INDIA GLOBALIZATION: NY Court Dismisses Samn Class Suit
--------------------------------------------------------
India Globalization Capital, Inc. said in its Form 10-Q Report
filed with the Securities and Exchange Commission on February 12,
2019, for the quarterly period ended December 31, 2018, that the
case Samn v. India Globalization Technology, et al., 1:18-cv-06199
(U.S. District Court for the Eastern District of New York), has
been dismissed by the plaintiff without prejudice and closed by
the court.
The plaintiff in Samn named the Company, Ram Mukunda, Claudia
Grimaldi, and Rohit Goel as defendants. Effective January 22, 2019,
the case was dismissed by the named plaintiff without prejudice and
closed by the court.
India Globalization Capital, Inc. engages in the development and
commercialization of cannabis-based therapies to treat Alzheimer's,
pain, nausea, eating disorders, several end points of Parkinson's,
and epilepsy in humans, dogs, and cats. The company was founded in
2005 and is based in Bethesda, Maryland.
INTEL CORP: Files Petitions for Writ of Certiorari in Sulyma Suit
-----------------------------------------------------------------
Defendants Intel Corporation Investment Policy Committee, et al.,
file with the Supreme Court of United States petitions for a writ
of certiorari in the matter entitled Intel Corporation Investment
Policy Committee, et al., Petitioners v. Christopher M. Sulyma,
Case No. 18-1116.
Responses are due on March 28, 2019.
The Lower Court Case is styled Christopher Sulyma v. Intel
Corporation Investment Policy Committee, et al., Case No. 17-15864,
in the United States Court of Appeals for the Ninth Circuit.
The District Court case is titled Christopher Sulyma v. Intel
Corporation Investment Policy Committee, et al., Case No.
5:15-cv-04977-NC, in the U.S. District Court for the Northern
District of California, San Jose.
The lawsuit alleges violations of the Employee Retirement Income
Security Act.
As previously reported in the Class Action Reporter, the lawsuit
arises from the Defendants' alleged breached of their fiduciary
duties by investing a significant portion of the Plans' assets in
risky and high-cost hedge fund and private equity investments, and
adopting asset allocation models for participant accounts that
departed dramatically from prevailing standards employed by
professional investment managers and plan fiduciaries.[BN]
Defendants-Petitioners INTEL CORPORATION INVESTMENT POLICY
COMMITTEE, et al., are represented by:
Donald B. Verrilli, Jr., Esq.
MUNGER, TOLLES & OLSON LLP
1155 F Streeet NW, 7th Floor
Washington, DC 20004
Telephone: (202) 220-1101
E-mail: donald.verrilli@mto.com
INTERCONTINENTAL EXCHANGE: Livonia Fund Alleges Index Price-Rigging
-------------------------------------------------------------------
The City of Livonia Employees' Retirement System and the City of
Livonia Retiree Health and Disability Benefits Plan have commenced
a class action lawsuit, bringing claims under the Sherman Antitrust
Act, Clayton Antitrust Act and state law, for alleged collusive
manipulation of Intercontinental Exchange London Interbank Offered
Rate (ICE LIBOR). ICE LIBOR (R) is a benchmark for short term bank
borrowing rates. Defendants collectively control the benchmark and
the level at which it is set. Defendant banks each submitted
unsecured term rates lower than risk-free overnight rates. The
depressed submissions translated into depressed rates.
The case is captioned, City of Livonia Employees' Retirement System
and City of Livonia Retiree Health and Disability Benefits Plan, on
behalf of themselves and all others similarly situated, Plaintiff,
v. Intercontinental Exchange, Inc., Intercontinental Exchange
Holdings, Inc., ICE Benchmark Administration Limited (f/k/a NYSE
Euronext Rate Administration Limited), ICE Data Services, Inc., ICE
Pricing and Reference Data LLC, Bank of America Corporation, Bank
of America N.A., Merrill Lynch, Pierce, Fenner & Smith Inc.,
Citigroup Inc., Citibank, N.A., Citigroup Global Markets Inc.,
JPMorgan Chase & Co., JPMorgan Chase Bank, N.A., J.P. Morgan
Securities LLC, Barclays PLC, Barclays Bank PLC, Barclays Capital
Inc., BNP Paribas SA, BNP Paribas Securities Corp., Credit Agricole
S.A., Credit Agricole Corporate and Investment Bank, Credit
Agricole Securities (USA) Inc., Credit Suisse Group AG, Credit
Suisse AG, Credit Suisse Securities (USA) LLC, Deutsche Bank AG,
Deutsche Bank Securities Inc., HSBC Holdings PLC, HSBC Bank PLC,
HSBC Bank USA, N.A., HSBC Securities (USA) INC., Lloyds Bank PLC,
Lloyds Securities Inc., MUFG Bank, LTD., The Bank of
Tokyo-Mitsubishi UFJ LTD., Mitsubishi UFJ Financial Group Inc.,
MUFG Securities Americas Inc., The Norinchukin Bank, Cooperatieve
Rabobank U.A., Royal Bank of Canada, RBC Capital Markets, LLC,
Royal Bank of Scotland Group PLC, Royal Bank of Scotland PLC,
National Westminster Bank PLC, Natwest Markets Securities Inc.
(f/k/a RBS Securities, Inc.), Societe Generale S.A., SG Americas
Securities, LLC, Sumitomo Mitsui Banking Corporation, Sumitomo
Mitsui Financial Group Inc., Sumitomo Mitsui Banking Corporation
Europe LTD., SMBC Capital Markets, Inc., UBS Group Ag, UBS AG, and
UBS Securities LLC, Defendant, Case No. 19-cv-00965 (S.D. N.Y.,
January 30, 2019).
City of Livonia Employees' Retirement System and City of Livonia
Retiree Health and Disability Benefits Plan transacted directly
with one or more Defendants in a US Dollar ICE LIBOR Financial
Instrument and claims to have received payments based on interest
at rates indexed to ICE LIBOR benchmark rates. [BN]
The Plaintiff is represented by:
David R. Scott, Esq.
Deborah Clark-Weintraub, Esq.
Peter A. Barile III, Esq.
Thomas K. Boardman, Esq.
SCOTT+SCOTT ATTORNEYS AT LAW LLP
The Helmsley Building
230 Park Avenue, 17th Floor
New York, NY 10169
Telephone: (212) 223-6444
Facsimile: (212) 223-6334
Email: david.scott@scott-scott.com
dweintraub@scott-scott.com
pbarile@scott-scott.com
tboardman@scott-scott.com
- and -
Amanda F. Lawrence, Esq.
SCOTT+SCOTT ATTORNEYS AT LAW LLP
P.O. Box 192
156 South Main Street
Colchester, CT 06415
Telephone: (860) 537-5537
Facsimile: (860) 537-4432
Email: alawrence@scott-scott.com
- and -
Patrick J. Coughlin, Esq.
Steve Jodlowski, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
655 W. Broadway, Suite 1900
San Diego, CA 92101
Telephone: (619) 231-1058
Facsimile: (619) 231-7423
Email: patc@rgrdlaw.com
sjodlowski@rgrdlaw.com
- and -
Randi D. Bandman, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
30 Vesey Street, Suite 200
New York, NY 10007
Telephone: (212) 693-1058
Facsimile: (212) 693-7423
Email: randib@rgrdlaw.com
- and -
George A. Zelcs, Esq.
Randall P. Ewing, Jr., Esq.
KOREIN TILLERY, LLC
205 North Michigan Avenue, Suite 1950
Chicago, IL 60601
Telephone: (312) 641-9750
Facsimile: (312) 641-9751
Email: gzelcs@koreintillery.com
rewing@koreintillery.com
- and -
Steven M. Berezney, Esq.
Michael E. Klenov, Esq.
KOREIN TILLERY, LLC
505 North 7th Street, Suite 3600
St. Louis, MO 63101
Telephone: (314) 241-4844
Facsimile: (314) 241-3525
Email: sberezney@koreintillery.com
mklenov@koreintillery.com
- and -
Vincent Briganti, Esq.
Geoffrey M. Horn, Esq.
Christian Levis, Esq.
LOWEY DANNENBERG, P.C.
44 South Broadway, Suite 1100
White Plains, NY 10601
Telephone: (914) 997-0500
Facsimile: (914) 997-0035
Email: vbriganti@lowey.com
ghorn@lowey.com
clevis@lowey.com
- and -
Thomas J. Undlin, Esq.
Stacey P. Slaughter, Esq.
Geoffrey H. Kozen, Esq.
ROBINS KAPLAN LLP
800 LaSalle Avenue, Suite 2800
Minneapolis, MN 55402
Telephone: (612) 349-8500
Facsimile: (612) 339-4181
Email: tundlin@robinskaplan.com
sslaughter@robinskaplan.com
gkozen@robinskaplan.com
- and -
Hollis Salzman, Esq.
David B. Rochelson, Esq.
ROBINS KAPLAN LLP
399 Park Avenue, Suite 3600
New York, NY 10022
Telephone: (212) 980-7400
Facsimile: (212) 980-7499
Email: hsalzman@robinskaplan.com
drochelson@robinskaplan.com
- and -
Thomas C. Michaud, Esq.
VANOVERBEKE, MICHAUD & TIMMONY, P.C.
79 Alfred Street
Detroit, MI 48201
Telephone: (313) 578-1200
Facsimile: (313) 578-1201
KAISER FOUNDATION: Sued by Hunter Over Unlawful Debt Collection
---------------------------------------------------------------
THERESA HUNTER, on behalf of herself and all others similarly
situated v. KAISER FOUNDATION HEALTH PLAN, INC. and USCB, INC.,
d/b/a USCB America, Case No. 3:19-cv-01053 (N.D. Cal., February 26,
2019), arises from the Defendants' alleged unlawful debt collection
and credit reporting practices.
In violation of the Fair Credit Reporting Act, the Fair Debt
Collection Practices Act, the California Consumer Credit Reporting
Agencies Act, the California Unfair Competition Law and the
Rosenthal Fair Debt Collection Practices Act, the Defendants
regularly seek to collect alleged balances from Medi-Cal
beneficiaries for Medi-Cal covered services and furnish information
about those alleged debts to consumer credit reporting agencies.
This causes pecuniary, reputational, and other harm to Medi-Cal
beneficiaries, such as the Plaintiff, according to the complaint.
Medi-Cal is California's medical assistance program, which pays
medical costs for eligible persons of limited financial means.
Kaiser Foundation Health Plan, Inc., is a California corporation
with its principal place of business located in Oakland,
California. Kaiser is a Medi-Cal provider and offers medical
services to Medi-Cal beneficiaries throughout the state of
California.
USCB, Inc., is a California corporation with its principal place of
business located in Los Angeles, California. USCB is a third-party
debt collector.[BN]
The Plaintiff is represented by:
Stephanie R. Tatar, Esq.
TATAR LAW FIRM, APC
3500 West Olive Ave., #300
Burbank, CA 91505
Telephone: (323) 744-1146
Facsimile: (888) 778-5695
E-mail: stephanie@thetatarlawfirm.com
- and -
James A. Francis, Esq.
John Soumilas, Esq.
FRANCIS & MAILMAN, P.C.
1600 Market Street, 25th Floor
Philadelphia, PA 19103
Telephone: (215) 735-8600
Facsimile: (215) 940-8000
E-mail: jfrancis@consumerlawfirm.com
jsoumilas@consumerlawfirm.com
KINDER MORGAN: Settlement Reached in Wisconsin Class Action
-----------------------------------------------------------
Kinder Morgan, Inc. said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on February 8, 2019, for
the fiscal year ended December 31, 2018, that a settlement in
principal has been reached in the Wisconsin class action and will
require class notice and court approval in 2019.
Beginning in 2003, several lawsuits were filed by purchasers of
natural gas against El Paso Corporation, El Paso Marketing L.P. and
numerous other energy companies based on a claim under state
antitrust law that such defendants conspired to manipulate the
price of natural gas by providing false price information to
industry trade publications that published gas indices. Several of
the cases were previously settled or dismissed, except for two
cases pending in a U.S. District Court in Nevada, including a
lawsuit brought by an industrial consumer in Kansas in which
approximately $500 million in damages plus interest was alleged
against all defendants, and a Wisconsin class action in which
approximately $300 million in damages plus interest has been
alleged against all defendants.
The Kansas case has now been settled, and a settlement in principal
has been reached in the Wisconsin class action that will require
class notice and court approval in 2019.
Kinder Morgan said, "The amount to be paid in settlement of these
matters is not material to our results of operations, cash flows or
dividends to shareholders."
Kinder Morgan, Inc. operates as an energy infrastructure company in
North America. The company operates through Natural Gas Pipelines,
Products Pipelines, Terminals, and CO2 segments. Kinder Morgan,
Inc. was founded in 1936 and is headquartered in Houston, Texas.
KRS GLOBAL: Grant of Partial Summary Judgment in Sawyer Recommended
-------------------------------------------------------------------
In the case, WILLIAM P. SAWYER d/b/a SHARONVILLE FAMILY MEDICINE,
Plaintiff, v. KRS BIOTECHNOLOGY, INC., et al., Defendants, Case No.
1:16-cv-550 (S.D. Ohio), Magistrate Judge Stephanie K. Bowman of
the U.S. District Court for the Southern District of Ohio, Western
Division, recommended that (i) the Plaintiff's motion for summary
judgment be granted in part and denied in part; and (ii) the
Defendant's cross-motion for partial summary judgment be granted.
On Oct. 9, 2015, KRS sent an unsolicited one-page advertisement to
Sawyer. The fax promoted KRS' IV infusion sets and/or other
products and services. In addition to being unsolicited, the
Infusion Kit Fax did not display a "proper opt-out notice."
Sawyer filed suit alleging that the unsolicited fax violated the
Junk Fax Prevention Act of the Telephone Consumer Protection Act
("TCPA"). Additionally, Sawyer alleged that the content of the fax
violated the Ohio Deceptive Trade Practices Act ("ODTPA").
Although Sawyer initially identified John Does 1-10 as additional
Defendants, the record does not reflect that any John Does have
ever been identified or served.
From the outset of the case, KRS has never contested its liability
under the TCPA to Sawyer. In contrast to its admitted TCPA
liability to Sawyer, however, KRS steadfastly denies ever sending
unsolicited faxes to any other individual or business. Moreover,
it is undisputed that the single Infusion Kit Fax ad was the only
material that Plaintiff Sawyer ever received from KRS.
The Plaintiff simultaneously engaged in discovery pertinent to
class certification issues and to its underlying case in chief.
The Court's calendar order directed the parties to complete all
discovery by June 1, 2017. Following the denial of class
certification on Sept. 5, 2018, the parties agreed that no further
discovery should be permitted.
The record reflects that KRS transmitted 34,773 faxes on the date
that Sawyer received a fax, but Sawyer was unable to produce
evidence to suggest that any fax transmission to any of the other
34,772 recipients was unsolicited. Likewise, Sawyer failed to
produce any evidence about the content of the faxes sent to the
other 34,772 recipients -- whether those fax transmissions were
identical or different from that received by Sawyer. Nevertheless,
in seeking class certification, Sawyer sought to recover damages on
behalf of a class that included the additional 34,772 recipients
who received some form of fax from KRS on the same date that Sawyer
received the single unsolicited Infusion Kit Fax ad.
The Court denied class certification after holding that Sawyer had
failed to meet the predominance and superiority requirements of
Rule 23(b)(3). It explained that as the party seeking class
certification, Sawyer was required to demonstrate the
"predominance" factor. In denying class certification, the Court
emphasized that the record is utterly devoid of evidence that
anyone other than Sawyer received the fax without permission.
On May 30, 2018, the undersigned filed a Report and Recommendation
("R&R") that the Plaintiff's motion for class certification be
denied. On Sept. 5, 2018, over the Plaintiff's objections, the
presiding district judge adopted that R&R for the opinion of the
Court. Thereafter, the parties agreed that the Plaintiff's
individual claims could be fully resolved on summary judgment
without further discovery and filed cross-motions for that purpose.
Because the Plaintiff's motion for class certification was denied,
Sawyer may recover damages only for the single fax transmission of
an unsolicited fax on Oct. 9, 2015. KRS has long admitted its
liability to Sawyer for this single violation under the CPA.
Accordingly, Sawyer is entitled to judgment as a matter of law on
that claim against KRS. By contrast, Magistrate Judge Bowman
recommends sua sponte dismissal and the denial of judgment against
all "John Doe" Defendants. The Plaintiff failed to identify or
serve any such John Doe Defendants, and his time for doing so has
long expired.
Aside from a cursory suggestion that it "does dispute many" of the
facts on which Defendant relies to support its motion, the
Magistrate finds that the Plaintiff offers no evidence to support
this claim. Instead, it represents that it is not seeking to
pursue the ODTPA claim. On that basis, she holds that the
Plaintiff concurs in dismissal of the state law claim. Based upon
the factual and legal arguments made by the Defendant, she
recommends that summary judgment be granted to KRS on this claim.
Finally, based upon the record concerning the single TCPA violation
by KRS in the case, the minimal harm demonstrated by Sawyer, and
the lack of any other evidence suggesting that violation was
willful and knowing, the Magistrate recommends the denial of the
Plaintiff's claim for treble damages.
For the reasons she stated, Magistrate Judge Bowman recommended
that (i) the Plaintiff's motion for summary judgment be granted in
part and denied in part, with damages limited to $500 on the
Plaintiff's single TCPA claim; and (ii) the Defendant's
cross-motion for partial summary judgment should be granted. With
the exception of the judgment to be entered in favor of Plaintiff
Sawyer and against Defendant KRS in the amount of $500 on the
single TCPA claim, all other claims and the Defendants should be
dismissed.
A full-text copy of the Court's Feb 19, 2019 Report &
Recommendation is available at https://is.gd/VJKQ3D from
Leagle.com.
William P. Sawyer, individually and as the representative of a
class of similary-situated persons, Plaintiff, represented by
George Demetrios Jonson -- GJonson@mrjlaw.com -- Montgomery, Rennie
& Johnson & Matthew E. Stubbs -- MStubbs@mrjlaw.com -- Montgomery,
Rennie & Jonson.
KRS Global Biotechnology, Inc., Defendant, represented by Paula
Milsom Brown -- pbrown@kravitzllc.com -- Kravitz, Brown & Dortch,
LLC, Richard R. Parsons -- rparsons@kravitzllc.com -- Kravitz Brown
& Dortch LLC, Eric Bravin -- info@ellslaw.com -- Ellsworth Law
Firm, P.A., pro hac vice & Sean M. Ellsworth, Ellsworth Law Firm,
P. A., pro hac vice.
KRYSTAL COMPANY: Jolley FLSA Suit Seeks to Recover Overtime Pay
---------------------------------------------------------------
LINDA JOLLEY, individually and on behalf of all others similarly
situated v. THE KRYSTAL COMPANY, Case No. 5:19-cv-00057-MTT (M.D.
Ga., February 26, 2019), seeks to recover alleged unpaid
compensation, in the form of overtime compensation, owed to the
Plaintiff and all current and former General Managers of the
Defendant, who are similarly situated pursuant to the Fair Labor
Standards Act.
The Krystal Company is a corporation conducting business in the
state of Georgia. The Defendant has 350 locations in the United
States, including in the states of Georgia, Alabama, Arkansas,
Florida, Kentucky, Louisiana, Mississippi, North and South
Carolina, Tennessee and Virginia.
Krystal engages in the development, operation, and franchising of
quick-service restaurants in the southeastern United States. The
Company was founded in 1932 and is based in Dunwoody, Georgia.[BN]
The Plaintiff is represented by:
William Gregory Dobson, Esq.
A. Danielle McBride, Esq.
LOBER & DOBSON, LLC
830 Mulberry Street, Ste. 201
Macon, GA 31201
Telephone: (478) 745-7700
Facsimile: (478) 745-4888
E-mail: wgd@lddlawyers.com
admcbride@lddlawyers.com
- and -
Gregory O. Wiggins, Esq.
Kevin W. Jent, Esq.
WIGGINS, CHILDS, PANTAZIS, FISHER & GOLDFARB, L.L.C.
The Kress Building
301 19th Street North
Birmingham, AL 35203
Telephone: (205) 314-0500
E-mail: gwiggins@wigginschilds.com
kjent@wigginschilds.com
MARRIOTT EMPLOYEES: Hourly Workers Sue Over Predatory Mini-Loans
----------------------------------------------------------------
Juliana Feliciano Reyes, writing for Philly, reports that hourly
Marriott workers in Philadelphia are in the midst of a lawsuit
against the Marriott Employees Federal Credit Union, saying the
credit union's $500 mini-loans are predatory and lack transparency
on their true cost.
The suit was filed on behalf of housekeeper Katherine Payne and
busser Arthur Coates, both of whom work at the Philadelphia
Marriott Downtown in Center City, but seeks to include all
Pennsylvania workers that have used the mini-loans. Payne and
Coates are part of a group of workers at the Marriott Downtown
seeking to unionize with Unite Here.
"By providing employees with quick cash when needed and indebting
them to their employer, the mini-loan allows the Marriott to retain
its workforce even while subjecting workers to unfair and
unpredictable scheduling," the lawsuit reads.
As of September 2018, the lawsuit says, credit union had assets
worth about $192 million, and nearly 32,500 members nationwide --
including 500 in the local district. The credit union mini-loans
are offered through Marriott's local human resources offices.
To be eligible for the mini-loan, workers must agree to a direct
deposit of a minimum of $33 weekly from their wages to their credit
union account before the loan is granted. An additional $10 per pay
week is held from the paycheck, which goes into an account that the
credit union keeps as collateral security until the loan is paid
off, according to the lawsuit.
It's a case that ties together two major topics facing workers.
Unpredictable scheduling
Payne, who lives in East Oak Lane and has worked at the Marriott
for eight years, and Coates, who lives in North Philly, turned to
the mini-loans when their hours were cut, the lawsuit says. It's a
scheduling problem that causes them to make less money, even if
their hourly rates are higher than the $15/hour that advocates are
fighting for around the country.
Lekesha Wheelings, a chef at the Philadelphia Marriott Downtown who
has also used the loans, made $39,500 in 2017, down from nearly
$45,000 in 2016.
Retail workers and fast-food workers also face inconsistent
scheduling issues: It's why advocates fought for the Fair Workweek
law that mandates more predictable hours and will be implemented in
2020. Philly's Fair Workweek law is the only city law of its kind
that also covers hotel workers. (Oregon's state law also covers
hotel workers.)
‘The $1,000 problem'
A majority of Americans would have trouble coming up with $1,000 to
cover an emergency, a phenomenon some experts have dubbed "the
$1,000 problem." It was an issue that was front and center just in
January when Transportation Security Administration agents and
other federal workers were forced to turn to food pantries and
loans when they missed a paycheck during the government shutdown.
Researchers like Carmen Rojas of the Workers Lab and Rachel
Schneider, author of The Financial Diaries: How American Families
Cope in a World of Uncertainty, have advocated for new kinds of
employee benefits that address problems that "show up earlier than
retirement and more regularly than major health-care emergencies,"
they said. And those benefits have started emerging, often with
corporations championing them as payday loan alternatives: Walmart
employees can now use an app to access their pay earlier, often
with no fees. Comcast employees can take out $1,000 to $2,000 loans
and pay it back through payroll deductions.
Still, some are skeptical about programs that get workers their
money faster: When the Huffington Post offered a freelancer quicker
payment for an 8 percent cut, he balked, describing it as another
form of a payday loan.
Regarding the Marriott credit union mini-loans and the Huffington
Post payment situation, Betsy Edasery, program director at the
Workers Lab, said they're both examples of "employers continuing to
place the burden on working people to solve failures of our economy
-- persistent low wages, unstable scheduling, zero benefits."
The Workers Lab, based in Oakland, Calif., is excited about
solutions that "are actually trying to solve these issues by
changing their business model by paying workers more and offering
no-cost cash advances or grants," she said.
There's nothing inherently problematic with an employer offering
benefits to tackle cash-flow problems, said Rebecca Borne, senior
policy counsel for the nonprofit Center for Responsible Lending
based, in Durham, N.C, but what is concerning about the Marriott
situation is how the credit union's $35 overdraft fees can interact
with the mini-loans to keep workers in a cycle of debt. Wheelings,
for example, got hit with $450 worth of overdraft fees in 2014
while she was paying back a mini-loan.
The credit union did not respond to a request for comment. Marriott
did not have any comment on the suit but said the credit union is
continuing to assess its products and services, in accordance with
the hotel company's request.
Mediation is scheduled for May, during which both parties could
come to a settlement, said Phillip Robinson of the Maryland
Consumer Law Center, who's representing the Marriott employees. If
the case does not get settled through a settlement or judgment,
Robinson said, a ruling could be expected by the end of the year.
[GN]
MASTERCARD INC: Appeal in Canadian Class Suit Underway
------------------------------------------------------
Mastercard Incorporated said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on February 13, 2019, for
the fiscal year ended December 31, 2018, that an appeal by
objectors to the approval of the settlement of the Canadian class
action litigation remains pending.
In December 2010, a proposed class action complaint was commenced
against Mastercard in Quebec on behalf of Canadian merchants. The
suit essentially repeated the allegations and arguments of a
previously filed application by the Canadian Competition Bureau to
the Canadian Competition Tribunal (dismissed in Mastercard's favor)
concerning certain Mastercard rules related to point-of-sale
acceptance, including the "honor all cards" and "no surcharge"
rules.
The Quebec suit sought compensatory and punitive damages in
unspecified amounts, as well as injunctive relief. In the first
half of 2011, additional purported class action lawsuits were
commenced in British Columbia and Ontario against Mastercard, Visa
and a number of large Canadian financial institutions. The British
Columbia suit sought compensatory damages in unspecified amounts,
and the Ontario suit sought compensatory damages of $5 billion on
the basis of alleged conspiracy and various alleged breaches of the
Canadian Competition Act.
Additional purported class action complaints were commenced in
Saskatchewan and Alberta with claims that largely mirror those in
the other suits. In June 2017, Mastercard entered into a class
settlement agreement to resolve all of the Canadian class action
litigation.
The settlement, which requires Mastercard to make a cash payment
and modify its "no surcharge" rule, has received court approval in
each Canadian province. Objectors to the settlement have sought to
appeal the approval orders. In 2017, Mastercard recorded a
provision for litigation of $15 million related to this matter.
Mastercard Incorporated, a technology company, provides transaction
processing and other payment-related products and services in the
United States and internationally. astercard Incorporated was
founded in 1966 and is headquartered in Purchase, New York.
MASTERCARD INC: ATM Surcharge-Related Suits Still Ongoing
---------------------------------------------------------
Mastercard Incorporated said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on February 13, 2019, for
the fiscal year ended December 31, 2018, that the company continues
to defend itself against class action lawsuits related to ATM
Surcharge Fees.
In October 2011, a trade association of independent Automated
Teller Machine ("ATM") operators and 13 independent ATM operators
filed a complaint styled as a class action lawsuit in the U.S.
District Court for the District of Columbia against both Mastercard
and Visa (the "ATM Operators Complaint").
Plaintiffs seek to represent a class of non-bank operators of ATM
terminals that operate in the United States with the discretion to
determine the price of the ATM access fee for the terminals they
operate. Plaintiffs allege that Mastercard and Visa have violated
Section 1 of the Sherman Act by imposing rules that require ATM
operators to charge non-discriminatory ATM surcharges for
transactions processed over Mastercard's and Visa's respective
networks that are not greater than the surcharge for transactions
over other networks accepted at the same ATM.
Plaintiffs seek both injunctive and monetary relief equal to treble
the damages they claim to have sustained as a result of the alleged
violations and their costs of suit, including attorneys' fees.
Plaintiffs have not quantified their damages although they allege
that they expect damages to be in the tens of millions of dollars.
Subsequently, multiple related complaints were filed in the U.S.
District Court for the District of Columbia alleging both federal
antitrust and multiple state unfair competition, consumer
protection and common law claims against Mastercard and Visa on
behalf of putative classes of users of ATM services (the "ATM
Consumer Complaints').
The claims in these actions largely mirror the allegations made in
the ATM Operators Complaint, although these complaints seek damages
on behalf of consumers of ATM services who pay allegedly inflated
ATM fees at both bank and non-bank ATM operators as a result of the
defendants' ATM rules.
Plaintiffs seek both injunctive and monetary relief equal to treble
the damages they claim to have sustained as a result of the alleged
violations and their costs of suit, including attorneys' fees.
Plaintiffs have not quantified their damages although they allege
that they expect damages to be in the tens of millions of dollars.
In January 2012, the plaintiffs in the ATM Operators Complaint and
the ATM Consumer Complaints filed amended class action complaints
that largely mirror their prior complaints. In February 2013, the
district court granted Mastercards motion to dismiss the complaints
for failure to state a claim. On appeal, the Court of Appeals
reversed the district court's order in August 2015 and sent the
case back for further proceedings.
No further updates were provided in the Company's SEC report.
Mastercard Incorporated, a technology company, provides transaction
processing and other payment-related products and services in the
United States and internationally. astercard Incorporated was
founded in 1966 and is headquartered in Purchase, New York.
MASTERCARD INC: Settlement of Damage Class Has Preliminary Okay
---------------------------------------------------------------
Mastercard Incorporated said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on February 13, 2019, for
the fiscal year ended December 31, 2018, that the district court
issued an order granting preliminary approval of the settlement of
the Damages Class and authorized notice of the settlement to class
members.
In June 2005, the first of a series of complaints were filed on
behalf of merchants (the majority of the complaints were styled as
class actions, although a few complaints were filed on behalf of
individual merchant plaintiffs) against Mastercard International,
Visa U.S.A., Inc., Visa International Service Association and a
number of financial institutions. Taken together, the claims in the
complaints were generally brought under both Sections 1 and 2 of
the Sherman Act, which prohibit monopolization and attempts or
conspiracies to monopolize a particular industry, and some of these
complaints contain unfair competition law claims under state law.
The complaints allege, among other things, that Mastercard, Visa,
and certain financial institutions conspired to set the price of
interchange fees, enacted point of sale acceptance rules (including
the no surcharge rule) in violation of antitrust laws and engaged
in unlawful tying and bundling of certain products and services.
The cases were consolidated for pre-trial proceedings in the U.S.
District Court for the Eastern District of New York in MDL No.
1720. The plaintiffs filed a consolidated class action complaint
that seeks treble damages.
In July 2006, the group of purported merchant class plaintiffs
filed a supplemental complaint alleging that Mastercard's initial
public offering of its Class A Common Stock in May 2006 (the "IPO")
and certain purported agreements entered into between Mastercard
and financial institutions in connection with the IPO: (1) violate
U.S. antitrust laws and (2) constituted a fraudulent conveyance
because the financial institutions allegedly attempted to release,
without adequate consideration, Mastercard's right to assess them
for Mastercard's litigation liabilities. The class plaintiffs
sought treble damages and injunctive relief including, but not
limited to, an order reversing and unwinding the IPO.
In February 2011, Mastercard and Mastercard International entered
into each of: (1) an omnibus judgment sharing and settlement
sharing agreement with Visa Inc., Visa U.S.A. Inc. and Visa
International Service Association and a number of financial
institutions; and (2) a Mastercard settlement and judgment sharing
agreement with a number of financial institutions.
The agreements provide for the apportionment of certain costs and
liabilities which Mastercard, the Visa parties and the financial
institutions may incur, jointly and/or severally, in the event of
an adverse judgment or settlement of one or all of the cases in the
merchant litigations. Among a number of scenarios addressed by the
agreements, in the event of a global settlement involving the Visa
parties, the financial institutions and Mastercard, Mastercard
would pay 12 percent of the monetary portion of the settlement. In
the event of a settlement involving only Mastercard and the
financial institutions with respect to their issuance of Mastercard
cards, Mastercard would pay 36% of the monetary portion of such
settlement.
In October 2012, the parties entered into a definitive settlement
agreement with respect to the merchant class litigation (including
with respect to the claims related to the IPO) and the defendants
separately entered into a settlement agreement with the individual
merchant plaintiffs. The settlements included cash payments that
were apportioned among the defendants pursuant to the omnibus
judgment sharing and settlement sharing agreement.
Mastercard also agreed to provide class members with a short-term
reduction in default credit interchange rates and to modify certain
of its business practices, including its "no surcharge" rule. The
court granted final approval of the settlement in December 2013,
and objectors to the settlement appealed that decision to the U.S.
Court of Appeals for the Second Circuit.
In June 2016, the court of appeals vacated the class action
certification, reversed the settlement approval and sent the case
back to the district court for further proceedings. The court of
appeals' ruling was based primarily on whether the merchants were
adequately represented by counsel in the settlement.
As a result of the appellate court ruling, the district court
divided the merchants' claims into two separate classes - monetary
damages claims (the "Damages Class") and claims seeking changes to
business practices (the "Rules Relief Class"). The court appointed
separate counsel for each class.
Prior to the reversal of the settlement approval, merchants
representing slightly more than 25 percent of the Mastercard and
Visa purchase volume over the relevant period chose to opt out of
the class settlement.
Mastercard had anticipated that most of the larger merchants who
opted out of the settlement would initiate separate actions seeking
to recover damages, and over 30 opt-out complaints have been filed
on behalf of numerous merchants in various jurisdictions.
Mastercard has executed settlement agreements with a number of
opt-out merchants.
Mastercard believes these settlement agreements are not impacted by
the ruling of the court of appeals. The defendants have
consolidated all of these matters in front of the same federal
district court that approved the merchant class settlement. In July
2014, the district court denied the defendants' motion to dismiss
the opt-out merchant complaints for failure to state a claim.
In September 2018, the parties to the Damages Class litigation
entered into a class settlement agreement to resolve the Damages
Class claims. Mastercard increased its reserve by $237 million
during 2018 to reflect both its expected financial obligation under
the Damages Class settlement agreement and the filed and
anticipated opt-out merchant cases.
In January 2019, the district court issued an order granting
preliminary approval of the settlement and authorized notice of the
settlement to class members. Damages Class members will now have
the opportunity to opt out of the class settlement agreement, after
which the district court will schedule a hearing on final approval.
The settlement agreement does not relate to the Rules Relief Class
claims. Separate settlement negotiations with the Rules Relief
Class are ongoing.
As of December 31, 2018 and 2017, Mastercard had accrued a
liability of $915 million and $708 million, respectively, as a
reserve for both the merchant class litigation and the filed and
anticipated opt-out merchant cases. As of December 31, 2018 and
2017, Mastercard had $553 million and $546 million, respectively,
in a qualified cash settlement fund related to the merchant class
litigation and classified as restricted cash on its consolidated
balance sheet.
Mastercard believes the reserve for both the merchant class
litigation and the filed and anticipated opt-out merchants
represents its best estimate of its probable liabilities in these
matters. The portion of the accrued liability relating to both the
opt-out merchants and the merchant class litigation settlement does
not represent an estimate of a loss, if any, if the matters were
litigated to a final outcome. Mastercard cannot estimate the
potential liability if that were to occur.
Mastercard Incorporated, a technology company, provides transaction
processing and other payment-related products and services in the
United States and internationally. astercard Incorporated was
founded in 1966 and is headquartered in Purchase, New York.
MASTERCARD INC: Shift Fraud Liability Suit Still Ongoing
--------------------------------------------------------
Mastercard Incorporated said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on February 13, 2019, for
the fiscal year ended December 31, 2018, that the company continues
to defend itself against a merchant class action involving
conspiracy to shift fraud liabilty.
In March 2016, a proposed U.S. merchant class action complaint was
filed in federal court in California alleging that Mastercard,
Visa, American Express and Discover (the "Network Defendants"),
EMVCo and a number of issuing banks (the "Bank Defendants") engaged
in a conspiracy to shift fraud liability for card present
transactions from issuing banks to merchants not yet in compliance
with the standards for EMV chip cards in the United States (the
"EMV Liability Shift"), in violation of the Sherman Act and
California law.
Plaintiffs allege damages equal to the value of all chargebacks for
which class members became liable as a result of the EMV Liability
Shift on October 1, 2015. The plaintiffs seek treble damages,
attorney's fees and costs and an injunction against future
violations of governing law, and the defendants have filed a motion
to dismiss.
In September 2016, the court denied the Network Defendants' motion
to dismiss the complaint, but granted such a motion for EMVCo and
the Bank Defendants. In May 2017, the court transferred the case to
New York so that discovery could be coordinated with the U.S.
merchant class interchange litigation.
The plaintiffs have filed a renewed motion for class certification,
following the district court's denial of their initial motion.
No further updates were provided in the Company's SEC report.
Mastercard Incorporated, a technology company, provides transaction
processing and other payment-related products and services in the
United States and internationally. astercard Incorporated was
founded in 1966 and is headquartered in Purchase, New York.
MASTERCARD INC: TCPA Class Suit in Florida Remains Stayed
---------------------------------------------------------
Mastercard Incorporated said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on February 13, 2019, for
the fiscal year ended December 31, 2018, that the Telephone
Consumer Protection Act ("TCPA") class action suit in Florida is
still stayed.
Mastercard is a defendant in a Telephone Consumer Protection Act
("TCPA") class action pending in Florida. The plaintiffs are
individuals and businesses who allege that approximately 381,000
unsolicited faxes were sent to them advertising a Mastercard
co-brand card issued by First Arkansas Bank ("FAB").
The TCPA provides for uncapped statutory damages of $500 per fax.
Mastercard has asserted various defenses to the claims, and has
notified FAB of an indemnity claim that it has (which FAB has
disputed).
In June 2018, the court granted Mastercard's motion to stay the
proceedings until the Federal Communications Commission makes a
decision on the application of the TCPA to online fax services.
No further updates were provided in the Company's SEC report.
Mastercard Incorporated, a technology company, provides transaction
processing and other payment-related products and services in the
United States and internationally. astercard Incorporated was
founded in 1966 and is headquartered in Purchase, New York.
MDL 2492: Gage Suit v. NCAA over Student-Athletes' Safety Moved
---------------------------------------------------------------
A case, Justin Gage, individually and on behalf of all others
similarly situated, the Plaintiff, vs. NATIONAL COLLEGIATE ATHLETIC
ASSOCIATION, the Defendant, Case No. 1:19-cv-00295 (Filed Jan. 25,
2019), was transferred from the U.S. District Court for the
Southern District of Indiana, to the U.S. District Court for the
Northern District of Illinois (Chicago) on Feb. 19, 2019. The
Illinois District Court Clerk assigned Case No. 1:19-cv-00974 to
the proceeding.
The Plaintiff brings this class action complaint against NCAA to
obtain redress for injuries sustained a result of Defendant's
reckless disregard for the health and safety of student-athletes.
The Gage case is being consolidated with MDL No. 2492, Re: NATIONAL
COLLEGIATE ATHLETIC ASSOCIATION STUDENT-ATHLETE CONCUSSION INJURY
LITIGATION. The MDL was created by Order of the United States
Judicial Panel on Multidistrict Litigation on Dec. 18, 2013. These
actions seek medical monitoring for putative classes of former
student athletes at NCAA-member schools who allege they suffered
concussions. The Plaintiffs allege that the NCAA concealed
information about the risks of the long-term effects of concussion
injuries. Opponents to centralization argue, inter alia, that (1)
the putative classes and claims alleged in these actions do not
sufficiently overlap; and (2) given the small number of actions
pending, alternatives to centralization are preferable. Opponents'
arguments, while persuasive when the Section 1407 motion was first
filed, are less compelling now given the current state of the
litigation.
Since the motion for centralization was filed, an additional eight
related actions have been filed, most alleging overlapping putative
classes of former football players at NCAA-member schools. The
Northern District of Illinois Arrington action involves
student-athletes who participated in additional sports, and the
putative class alleged in that action is more limited in scope.
Most of the actions now pending, however, involve nearly completely
overlapping putative classes and claims. Moreover, the Panel is
persuaded that the overlap between Arrington and the remaining
actions is sufficient to warrant centralization. Regardless of the
scope of the putative classes alleged, all actions share common
factual questions concerning the NCAA's knowledge of the risks of
concussions in football players and its policies governing the
protection of players from such injuries. Plaintiffs in all actions
seek medical monitoring for putative class members.
In its Dec. 18, 2013 Order, the MDL Panel found that the these
actions involve common questions of fact, and that centralization
in the Northern District of Illinois will serve the convenience of
the parties and witnesses and promote the just and efficient
conduct of this litigation. These actions share factual questions
relating to allegations against the NCAA stemming from injuries
sustained while playing sports at NCAA-member institutions,
including damages resulting from the permanent long-term effects of
concussions. Centralization will eliminate duplicative discovery;
prevent inconsistent pretrial rulings, including with respect to
class certification; and conserve the resources of the parties,
their counsel, and the judiciary. Presiding Judge in the MDL is
Hon. Judge John Z. Lee Paul. The lead case is 1:16-cv-08727.
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
MDL 2724: EPPs, IRPs State Law Claims on Group 1 Drugs Narrowed
---------------------------------------------------------------
In the case, IN RE: GENERIC PHARMACEUTICALS PRICING ANTITRUST
LITIGATION, THIS DOCUMENT RELATES TO: IN RE: CLOBETASOL CASES All
End-Payer and Indirect Reseller Actions. IN RE: DIGOXIN CASES All
End-Payer and Indirect Reseller Actions. IN RE: DIVALPROEX ER CASES
All End-Payer and Indirect Reseller Actions. IN RE: DOXYCYCLINE
CASES All End-Payer and Indirect Reseller Actions. IN RE: ECONAZOLE
CASES All End-Payer and Indirect Reseller Actions. IN RE:
PRAVASTATIN CASES All End-Payer and Indirect Reseller Actions, Case
No. 16-MD-2724, Nos. 16-CB-27240, 16-CB-27242, 16-CB-27243, Nos.
16-DG-27240, 16-DG-27242, 16-DG-27243, Nos. 16-DV-27240,
16-DV-27242, 16-DV-27243, Nos. 16-DX-27240, 16-DX-27242,
16-DX-27243, Nos. 16-EC-27240, 16-EC-27242, 16-EC-27243, Nos.
16-PV-27240, 16-PV-27242, 16-PV-27243 (E.D. Pa.), Judge Cynthia M.
Ruff of the U.S. District Court for the Eastern District of
Pennsylvania granted in part and denied in part the Defendants'
motion to dismiss the state law claims by the End-Payer Plaintiffs
("EPPs") and the Indirect-Reseller Plaintiffs ("IRPs") with respect
to the following generic drugs: (1) clobetasol; (2) digoxin; (3)
divalproex ER; (4) doxycycline; (5) econazole; and (6) pravastatin
("Group 1 drugs").
The Plaintiffs contend that the Defendants -- pharmaceutical
manufacturers -- engaged in an unlawful scheme or schemes to fix,
maintain and stabilize prices, rig bids, and engage in market and
customer allocations of certain generic pharmaceutical products,
including the Group 1 drugs. The EPPs and the IRPs allege that
during the time relevant to their claims the Defendants sold or
distributed the Group 1 drugs in a continuous and uninterrupted
flow of interstate commerce to customers throughout the United
States.
Relevant to the issues presently before the Court, the EPPs and the
IRPs assert claims for monetary damages under various state
antitrust laws, as well as state law consumer protection claims
and/or claims for unjust enrichment. They bring state law claims
because they are precluded from asserting federal antitrust claims
for damages under the Supreme Court's decision in Illinois Brick
Co. v. Illinois, which determined that direct purchasers are the
only parties 'injured' in a manner that permits them to recover
damages.
The Defendants have moved to dismiss the state law claims by the
EPPs and the IRPs with respect to the Group 1 drugs. Group 1
Defendants argue that Group 1 EPPs' and IRPs' claims under the laws
of those states or territories in which they do not reside or
allege to have reimbursed purchases for Group 1 drugs should be
dismissed for lack of Article III standing. They also argue that
Group 1 EPPs' and IRPs' state antitrust, consumer protection, and
unjust enrichment claims suffer from a variety of state specific
pleading failures. Finally, they assert that many of the Group 1
EPPs' and IRPs' state law claims are barred by applicable statutes
of limitations.
Judge Ruff granted the Defendants' motions in part and denied them
in part. She dismissed the following claims with prejudice: (1)
Group 1 EPPs' and IRPs' claims under the Illinois Antitrust Act;
(2) divalproex ER and doxycycline EPPs' and IRPs' claims under the
Rhode Island antitrust law to the extent they seek to recover
damages for alleged overcharges incurred prior to July 15, 2013;
(3) Group 1 EPPs' and IRPs' Georgia Uniform Deceptive Trade
Practices Act claims to the extent that they seek monetary relief
for such claims; and (4) Group 1 EPPs' and IRPs' claims under the
West Virginia Consumer Credit and Protection Act.
She also dismissed with prejudice Group 1 EPPs' and IRPs' South
Carolina consumer protection claims and Group 1 EPPs' Montana
consumer protection claims to the extent that they seek to pursue
these claims on behalf of a class. They may proceed with the South
Carolina and Montana consumer protection claims on an individual
basis if they have Article III standing to assert such claims.
In addition, she dismissed Group 1 EPPs' Alabama antitrust claims,
Group 1 EPPs' New Jersey Consumer Protection Act claims, and Group
1 IRPs' claims under the Michigan and Nevada consumer protection
statutes because they have indicated their intent to withdraw or
voluntarily dismiss these claims in response to the Defendants'
motions.
The Judge otherwise concluded that Group 1 EPPs' and IRPs' state
law claims are sufficient to withstand dismissal. An appropriate
Order follows.
A full-text copy of the Court's Feb. 15, 2019 Opinion is available
at https://is.gd/MW2GAk from Leagle.com.
DEFENSE LIAISON COUNSEL, Defendant, represented by CHUL PAK --
cpak@wsgr.com -- WILSON SONSINI GOODRICH & ROSATI PC, JAN P. LEVINE
-- levinej@pepperlaw.com -- PEPPER HAMILTON LLP, LAURA S. SHORES --
laura.shores@arnoldporter.com -- ARNOLD & PORTER KAYE SCHOLER LLP,
SAUL P. MORGENSTERN -- saul.morgenstern@arnoldporter.com – ARNOLD
& PORTER KAYE SCHOLER LLP & SHERON KORPUS -- skorpus@kasowitz.com
-- KASOWITZ BENSON TORRES LLP.
DIRECT PURCHASER PLAINTIFFS PSC, Plaintiffs, represented by DAVID
F. SORENSEN -- dsorensen@bm.net -- BERGER & MONTAGUE, P.C., DIANNE
M. NAST -- dnast@nastlaw.com -- NASTLAW LLC, LINDA P. NUSSBAUM --
lnussbaum@nussbaumpc.com -- NUSSBAUM LAW GROUP PC, MICHAEL L.
ROBERTS -- mlr@alabamatortlaw.com -- ROBERTS LAW FIRM, ROBERT N.
KAPLAN -- rkaplan@kaplanfox.com -- KAPLAN FOX & KILSHEIMER, LLP,
THOMAS M. SOBOL -- tom@hbsslaw.com -- HAGENS BERMAN SOBOL SHAPIRO
LLP & ROBERTA D. LIEBENBERG -- mail@finekaplan.com -- FINE, KAPLAN
AND BLACK.
END-PAYER PLAINTIFFS PSC, Plaintiffs, represented by ADAM J. ZAPALA
-- azapala@cpmlegal.com -- COTCHETT PITRE & MCCARTHY LLP, BONNY
SWEENEY -- bsweeney@hausfeld.com -- HAUSFELD LLP, DENA C. SHARP --
Dena Sharp -- GIRARD GIBBS LLP, ELIZABETH JOAN CABRASER --
ecabraser@lchb.com -- LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP,
GREGORY S. ASCIOLLA -- gasciolla@labaton.com -- LABATON SUCHAROW
LLP, HEIDI M SILTON -- hmsilton@locklaw.com -- LOCKRIDGE GRINDAL
NAUEN PLLP, JAMES R. DUGAN, II, THE DUGAN LAW FIRM, JAYNE A.
GOLDSTEIN, SHEPHERD FINKELMAN MILLER & SHAH LLP, JOSEPH R. SAVERI
-- jsaveri@saverilawfirm.com -- JOSEPH SAVERI LAW FIRM, MICHAEL M.
BUCHMAN -- mbuchman@motleyrice.com -- MOTLEY RICE LLC & MINDEE J.
REUBEN -- mreuben@litedepalma.com -- LITE DEPALMA GREENBERG LLC.
INDIRECT RESELLERS PSC, Plaintiffs, represented by DANIEL S. MASON,
FURTH SALEM MASON & LI LLP, ELIZABETH TIPPING --
info@nealharwell.com -- NEAL & HARWELL, PLC, FRANCIS O. SCARPULLA
-- fos@scarpullalaw.com -- LAW OFFICES OF FRANCIS O. SCARPULLA &
JONATHAN W. CUNEO -- jonc@cuneolaw.com -- CUNEO GILBERT & LADUCA
LLP.
INDIRECT RESELLERS PSC, plaintiffs represented by DON BARRETT --
donbarrettpa@gmail.com -- BARRETT LAW OFFICES.
STATE ATTORNEYS GENERAL, Plaintiffs, represented by W. JOSEPH
NIELSEN, ATTORNEY GENERAL'S OFFICE, LAURA JOHNSON MARTELLA,
ATTORNEY GENERAL'S OFFICE, MAX M. MILLER, OFFICE OF THE ATTORNEY
GENERAL OF IOWA, ROBERT L. HUBBARD, ATTORNEY GENERAL OF NEW YORK,
TIMOTHY M. FRASER, FL OFFICE OF THE ATTORNEY GENERAL & WADE ELLIS
BEAVERS, OFFICE OF THE NEVADA ATTORNEY GENERAL.
DAVID H. MARION, Special Master, pro se.
BRUCE P. MERENSTEIN, Special Master, pro se.
LINDA D. PERKINS, Special Master, pro se.
UNITED STATES OF AMERICA, Intervenor, represented by ANDREW J.
EWALT, U.S. DEPT OF JUSTICE, ELLEN R. CLARKE, U.S. DEPT OF JUSTICE,
JAY OWEN, U.S. DEPT OF JUSTICE, JOSEPH C. FOLIO, III, U.S. DEPT OF
JUSTICE & RYAN J. DANKS, U.S. DEPARTMENT OF JUSTICE ANTITTRUST
DIVISION.
MDL 2875: 10 Valsartan Suits Moved to District of New Jersey
------------------------------------------------------------
In the case, IN RE: VALSARTAN N-NITROSODIMETHYLAMINE (NDMA)
CONTAMINATION PRODUCTS LIABILITY LITIGATION, MDL No. 2875, the U.S.
Judicial Panel on Multidistrict Litigation (i) transferred the
actions listed on Schedule A and pending outside the District of
New Jersey to the District of New Jersey; and (ii) with the consent
of that court, assigned to Judge Robert B. Kugler for coordinated
or consolidated pretrial proceedings.
The 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. The 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 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. Each of these actions seeks economic damages and
related injunctive relief on behalf of proposed classes of
purchasers of generic valsartan. The initial motion for
centralization also listed an action alleging individual personal
injury (Gentry), but the action subsequently was voluntarily
dismissed. Since the filing of the motion, the Panel has been
notified of 30 related actions. Of these, 17 are individual
personal injury actions, and the remainder are putative class
actions on behalf of consumers and third-party payors.
The Responding Plaintiffs in seven actions on the motion and nine
potential tag-along actions support centralization of all actions,
including the personal injury actions, and request the District of
New Jersey as their first or second choice of forum. Their other
suggested districts are the Northern District of California, the
Northern District of Florida, the District of Massachusetts, the
District of Minnesota, and the Western District of Texas. The
Plaintiffs in two actions on the motion (Stimma and Duffy) support
centralization only of the consumer class actions and seek the
District of New Jersey. The Plaintiff in one potential tag-along
action on behalf of third-party payors (MSP Recovery) seeks
inclusion of its action and requests the Southern District of
Florida or the District of New Jersey.
The principal common Defendants in the litigation -- Zhejiang
Huahai Pharmaceutical Co., Ltd. and its U.S. affiliates Prinston
Pharmaceutical Inc., Solco Healthcare U.S., LLC, and Huahai U.S.,
Inc.-- along with pharmacy Defendants Walgreen Co. and Throggs Neck
Pharmacy support centralization of the 10 actions on the motion in
the District of New Jersey. They ask the Panel to limit the scope
of the MDL solely to consumer class actions, though they
acknowledged shared factual issues among the personal injury and
consumer actions at oral argument.
The Mylan Defendants -- sued in six potential tag-along actions --
oppose inclusion of any actions against Mylan or actions involving
personal injuries and, alternatively, request the District of New
Jersey or the Northern District of West Virginia. The other
responding Defendants do not oppose centralization of solely the
consumer class actions in the District of New Jersey, but Teva and
certain other defendants suggest that an MDL may not be warranted
on the ground that alternatives to centralization exist,
particularly transfer under Section 1404(a). In the event an MDL
is established, they strongly oppose inclusion of any personal
injury actions. Additionally, Teva opposes inclusion of the MSP
Recovery third-party payor action.
On the basis of the papers filed and the hearing held, 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 the
litigation. All actions involve common factual questions arising
out of allegations that the 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. All of the valsartan actions will raise the
issues, regardless of whether the alleged supplier of the valsartan
API was ZHP, Mylan,7 Hetero Labs Limited, or some other entity.
Centralization will eliminate duplicative discovery; prevent
inconsistent pretrial rulings, including with respect to class
certification and Daubert motions; and conserve the resources of
the parties, their counsel, and the judiciary.
Although all pending actions on the motion before the Court are
putative consumer class actions seeking economic damages, it
received extensive briefing and oral argument on whether the MDL
should include personal injury actions. Based on this record, it
believes that the centralized proceedings should include the
related personal injury actions alleging that the Plaintiffs
developed cancer as a result of using valsartan containing NDMA or
NDEA impurities. Thus, discovery undoubtedly will overlap among
these actions.
The Court also intends to include the MSP Recovery third-party
payor class action through the conditional transfer order process.
The MSP Recovery action makes substantially the same factual
allegations as the consumer class actions -- essentially, that the
Defendants sold valsartan medications that they knew or had reason
to know contained NDMA or NDEA. The handful of case-specific
issues raised by Teva in opposition to transfer do not warrant
exclusion of the action considering the common factual core.
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.
It holds that the District of New Jersey is an appropriate
transferee district for the 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 Hetero USA Inc., Camber Pharmaceuticals, Inc.,
and Torrent Pharma, Inc. Thus, common documents and witnesses
likely will be located in this district. Judge Robert B. Kugler is
an experienced transferee judge with the willingness and ability to
manage this litigation. The Court is confident that he will steer
this litigation on a prudent course.
Based on the foregoing, the Court transferred the actions listed on
Schedule A and pending outside the District of New Jersey to the
District of New Jersey and, with the consent of that court,
assigned to Judge. Kugler for coordinated or consolidated pretrial
proceedings. In light of this opinion, MDL No. 2875 is renamed In
re: Valsartan Products Liability Litigation.
A full-text copy of the Court's Feb. 15, 2019 Transfer Order is
available at https://is.gd/xpMrzo from Leagle.com.
MDL 2875: Judson Suit v. Pharma Cos. over Valsartan Consolidated
----------------------------------------------------------------
A case, John Judson and Jo Ann Hamel, on behalf of themselves and
others similarly situated, the Plaintiffs, vs. Prinston
Pharmaceutical Inc. doing business as: SOLCO HEALTHCARE LLC,; SOLCO
HEALTHCARE U.S. LLC; Huahai US Inc.; TEVA PHARMACEUTICAL INDUSTRIES
LTD; TEVA PHARMACEUTICALS USA INC., a Delaware corporation, the
Defendants, Case No. 1:18-cv-01405 (Filed Oct. 11, 2018), was
transferred from the U.S. District Court for the Eastern District
of California, to the U.S. District Court for the District of New
Jersey on Feb. 19, 2019. The New Jersey District Court Clerk
assigned Case No. 1:19-cv-06146 to the proceeding.
The Judson case is being consolidated with MDL No. 2875, Re:
VALSARTAN N-NITROSODIMETHYLAMINE (NDMA) CONTAMINATION PRODUCTS
LIABILITY LITIGATION. The MDL was created by Order of the United
States Judicial Panel on Multidistrict Litigation on Feb. 14, 2019.
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.
In its Dec. 18, 2013 Order, the MDL Panel found that these actions
involve common questions of fact, and that centralization will
serve the convenience of the parties and witnesses and promote the
just and efficient conduct of this litigation. All actions involve
common factual questions arising out of allegations that plaintiffs
purchased or used generic formulations of valsartan medications
containing the nitrosamine impurities NDMA and/or NDEA; that these
impurities present a risk of cancer and liver damage; and that
defendants knew, or should have known, of the impurities as early
as 2012. All actions stem from the same FDA investigation and
voluntary recall announced in July 2018, and the voluntary recalls
are ongoing. Although the investigation, and the earliest-filed
actions, focused on ZHP as the source of the alleged impurities,
the FDA investigation and the actions before the Panel now
encompass alleged industry-wide issues concerning the production of
the valsartan active pharmaceutical ingredient (API) which will be
common to all actions. The common questions of fact include: (1)
whether the generic valsartan sold by defendants contained NDMA or
NDEA; (2) the cause of the alleged impurities, including alleged
defects in the manufacturing and sampling process; (3) when
defendants knew or should have known of the impurities; (4) how
long the NDMA- and NDEA- containing valsartan medications were in
circulation; and (5) whether the amounts of NDMA and NDEA in the
medications presented a risk of cancer or other injuries. All of
the valsartan actions will raise these issues, regardless of
whether the alleged supplier of the valsartan API was ZHP, Mylan,
Hetero Labs Limited, or some other entity. Centralization will
eliminate duplicative discovery; prevent inconsistent pretrial
rulings, including with respect to class certification and Daubert
motions; and conserve the resources of the parties, their counsel,
and the judiciary. Presiding Judge in the MDL is Hon. Judge Robert
B. Kugler. The lead case is Case No.1:19-md-02875-RBK-JS.[BN]
Attorneys for the Plaintiffs:
Allan Kanner, Esq.
ALLAN KANNER & ASSOCIATES, PC
701 Camp Street
New Orleans, LA 70130
Telephone: (504) 524-5777
E-mail: a.kanner@kanner-law.com
- and -
John Randolph Davis, Esq.
SLACK & DAVIS LLP
2705 Bee Cave Road, Suite 220
Austin, TX 78746
Telephone: (512) 795-8686
E-mail: jdavis@slackdavis.com
Attorneys for the Defendants:
Meredith Proctor Grant, Esq.
DUANE MORRIS, LLP
750 B Street, Suite 2900
San Diego, CA 92101
Telephone: (619) 744-2200
Facsimile: (619) 744-2201
MEDLEY CAPITAL: Faces Lax and Dicristino Suit in New York
---------------------------------------------------------
Medley Capital Corporation said in its Form 10-Q Report filed with
the Securities and Exchange Commission on February 11, 2019, for
the quarterly period ended December 31, 2018, that the company has
been named as defendant in two purported class suits in New York
entitled, Helene Lax v. Brook Taube, et al. and Richard Dicristino,
et al. v. Brook Taube, et al.
On January 25, 2019, two purported class actions were commenced in
the Supreme Court of the State of New York, County of New York, by
alleged stockholders of Medley Capital Corporation, captioned,
respectively, Helene Lax v. Brook Taube, et al., Index No.
650503/2019, and Richard Dicristino, et al. v. Brook Taube, et al.,
Index No. 650510/2019 (together with the Lax Action, the "New York
Actions").
Named as defendants in each complaint are Brook Taube, Seth Taube,
Jeffrey Tonkel, Arthur S. Ainsberg, Karin Hirtler-Garvey, John E.
Mack, Mark Lerdal, Richard T. Allorto, Jr., Medley Capital
Corporation ("MCC"), Medley Management Inc., Sierra Income
Corporation, and Sierra Management, Inc. ("Sierra").
The complaints in each of the New York Actions allege that the
individuals named as defendants breached their fiduciary duties in
connection with the proposed merger of MCC with and into Sierra,
and that the other defendants aided and abetted those alleged
breaches of fiduciary duties. Compensatory damages in unspecified
amounts are sought.
The defendants believe the claims asserted in the New York Actions
are without merit and they intend to defend these lawsuits
vigorously.
Medley Capital Corporation is a business development company. The
fund seeks to invest in privately negotiated debt and equity
securities of small and middle market companies. The company is
based in New York, New York.
MEDLEY CAPITAL: FrontFour Challenges Sierra Income Merger Deal
--------------------------------------------------------------
Medley Capital Corporation said in its Form 10-Q Report filed with
the Securities and Exchange Commission on February 11, 2019, for
the quarterly period ended December 31, 2018, that the plaintiffs
in FrontFour Capital Group LLC, et al. v. Brook Taube, et al.,
filed simultaneously with their complaint, a motion seeking an
expedited trial prior to the March 8, 2019 stockholder vote or, in
the alternative, a preliminary injunction hearing followed by an
expedited trial as soon as the court's schedule permits.
On February 11, 2019, a purported stockholder class action was
commenced in the Court of Chancery of the State of Delaware by
FrontFour Capital Group LLC and FrontFour Master Fund, Ltd.,
captioned FrontFour Capital Group LLC, et al. v. Brook Taube, et
al., Case No. 2019-0100 (the "Delaware Action").
Named as defendants in the complaint are Brook Taube, Seth Taube,
Jeff Tonkel, Mark Lerdal, Karin Hirtler-Garvey, John E. Mack,
Arthur S. Ainsberg, Medley Management Inc. ("Medley Management"),
Sierra Income Corporation ("Sierra"), and Medley Capital
Corporation ("MCC").
The complaint alleges that the individuals named as defendants
breached their fiduciary duties to MCC stockholders in connection
with the proposed merger of MCC with and into Sierra, and that
Medley Management and Sierra aided and abetted those alleged
breaches of fiduciary duties. The complaint seeks to enjoin the
March 8, 2019 vote of MCC stockholders on the proposed merger and
enjoin enforcement of certain provisions of the Agreement and Plan
of Merger, dated as of August 9, 2018, by and between MCC and
Sierra.
The plaintiffs filed a motion to expedite simultaneously with their
complaint, seeking an expedited trial prior to the March 8, 2019
stockholder vote or, in the alternative, a preliminary injunction
hearing followed by an expedited trial as soon as the court's
schedule permits.
Medley Capital said, "The defendants believe the claims asserted in
the Delaware Action are without merit and they intend to defend
this lawsuit vigorously."
Medley Capital Corporation is a business development company. The
fund seeks to invest in privately negotiated debt and equity
securities of small and middle market companies. The company is
based in New York, New York.
MEDLEY CAPITAL: RICO Suits in Virginia & Pennsylvania Ongoing
-------------------------------------------------------------
Medley Capital Corporation said in its Form 10-Q Report filed with
the Securities and Exchange Commission on February 11, 2019, for
the quarterly period ended December 31, 2018, that the company
continues to defend a class action lawsuit in Virginia and
Pennsylvania alleging claims under the Racketeer Influenced and
Corrupt Organizations Act, and various other claims arising out of
the alleged payday lending activities of American Web Loan.
The Company, Medley LLC, MDLY, Medley Opportunity Fund II LP,
Medley Group, LLC, Brook Taube, and Seth Taube were named as
defendants, along with other various parties, in a putative class
action lawsuit captioned as Royce Solomon, Jodi Belleci, Michael
Littlejohn, and Giulianna Lomaglio v. American Web Loan, Inc., AWL,
Inc., Mark Curry, MacFarlane Group, Inc., Sol Partners, Medley
Opportunity Fund, II, LP, Medley LLC, Medley Capital Corporation,
Medley Management, Inc., Medley Group, LLC, Brook Taube, Seth
Taube, DHI Computing Service, Inc., Middlemarch Partners, and John
Does 1-100, filed on December 15, 2017 and amended on March 9,
2018, in the United States District Court for the Eastern District
of Virginia, Newport News Division, as Case No. 4:17-cv-145
(hereinafter, "Class Action 1").
Medley Opportunity Fund II LP and Medley Capital Corporation were
also named as defendants, along with various other parties, in a
putative class action lawsuit captioned George Hengle and Lula
Williams v. Mark Curry, American Web Loan, Inc., AWL, Inc., Red
Stone, Inc., Medley Opportunity Fund II LP, and Medley Capital
Corporation, filed February 13, 2018, in the United States District
Court, Eastern District of Virginia, Richmond Division, as Case No.
3:18-cv-100 ("Class Action 2").
Medley Opportunity Fund II LP and Medley Capital Corporation were
also named as defendants, along with various other parties, in a
putative class action lawsuit captioned John Glatt, Sonji Grandy,
Heather Ball, Dashawn Hunter, and Michael Corona v. Mark Curry,
American Web Loan, Inc., AWL, Inc., Red Stone, Inc., Medley
Opportunity Fund II LP, and Medley Capital Corporation, filed
August 9, 2018 in the United States District Court, Eastern
District of Virginia, Newport News Division, as Case No.
4:18-cv-101 ("Class Action 3") (together with Class Action 1 and
Class Action 2, the "Virginia Class Actions").
Medley Opportunity Fund II LP was also named as a defendant, along
with various other parties, in a putative class action lawsuit
captioned Christina Williams and Michael Stermel v. Red Stone, Inc.
(as successor in interest to MacFarlane Group, Inc.), Medley
Opportunity Fund II LP, Mark Curry, Brian McGowan, Vincent Ney, and
John Doe entities and individuals, filed June 29, 2018 and amended
July 26, 2018, in the United States District Court for the Eastern
District of Pennsylvania, as Case No. 2:18-cv-2747 (the
"Pennsylvania Class Action") (together with the Virginia Class
Actions, the "Class Action Complaints").
The plaintiffs in the Class Action Complaints filed their putative
class actions alleging claims under the Racketeer Influenced and
Corrupt Organizations Act, and various other claims arising out of
the alleged payday lending activities of American Web Loan.
The claims against Medley Opportunity Fund II LP, Medley LLC,
Medley Capital Corporation, Medley Management, Inc., Medley Group,
LLC, Brook Taube, and Seth Taube (in Class Action 1, as amended);
Medley Opportunity Fund II LP and Medley Capital Corporation (in
Class Action 2 and Class Action 3); and Medley Opportunity Fund II
LP (in the Pennsylvania Class Action), allege that those defendants
in each respective action exercised control over, or improperly
derived income from, and/or obtained an improper interest in,
American Web Loan's payday lending activities as a result of a loan
to American Web Loan.
The loan was made by Medley Opportunity Fund II LP in 2011.
American Web Loan repaid the loan from Medley Opportunity Fund II
LP in full in February of 2015, more than 1 year and 10 months
prior to any of the loans allegedly made by American Web Loan to
the alleged class plaintiff representatives in Class Action 1.
In Class Action 2, the alleged class plaintiff representatives have
not alleged when they received any loans from American Web Loan.
In Class Action 3, the alleged class plaintiff representatives
claim to have received loans from American Web Loan at various
times from February 2015 through April 2018.
In the Pennsylvania Class Action, the alleged class plaintiff
representatives claim to have received loans from American Web Loan
in 2017. By orders dated August 7, 2018 and September 17, 2018, the
Court presiding over the Virginia Class Actions consolidated those
cases for all purposes. On October 12, 2018, Plaintiffs in Class
Action 3 filed a notice of voluntary dismissal of their claims,
without prejudice, against Medley Opportunity Fund II, LP and
Medley Capital Corporation. On October 22, 2018, the parties to
Class Action 2 settled.
On October 29, 2018, the plaintiffs in Class Action 2 stipulated to
the dismissal of their claims against all defendants in Class
Action 2 (including Medley Opportunity Fund II LP and Medley
Capital Corporation), with prejudice.
Medley LLC, Medley Capital Corporation, Medley Management, Inc.,
Medley Group, LLC, Brook Taube, and Seth Taube never made any loans
or provided financing to, or had any other relationship with,
American Web Loan. The Company, Medley Opportunity Fund II LP,
Medley LLC, MDLY, Medley Group, LLC, Brook Taube, Seth Taube are
seeking indemnification from American Web Loan, various affiliates,
and other parties with respect to the claims in the Class Action
Complaints. The Company, Medley Opportunity Fund II LP, Medley LLC,
MDLY, Medley Group, LLC, Brook Taube, and Seth Taube believe the
alleged claims in the Class Action Complaints are without merit and
they intend to defend these lawsuits vigorously.
Medley Capital Corporation is a business development company. The
fund seeks to invest in privately negotiated debt and equity
securities of small and middle market companies. The company is
based in New York, New York.
MERCANTILE ADJUSTMENT: E.D.N.Y. Dismisses Goodman FDCA Suit
-----------------------------------------------------------
In the case, Mindy Goodman, Plaintiff, v. Mercantile Adjustment
Bureau, LLC, Defendant, Case No. 18-cv-04488 (ARR) (SJB) (E.D.
N.Y.), Judge Allyne R. Ross of the U.S. District Court for the
Eastern District of New York granted the Defendant's motion to
dismiss the Plaintiff's complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6).
Goodman, brings the putative class action against the Defendant, a
debt collector. She alleges that the Defendant violated the Fair
Debt Collection Practices Act ("FDCPA") by mailing her a debt
collection letter that misrepresented her ability to dispute the
alleged debt, thus engaging in "false, deceptive, or misleading"
debt collection practices.
In August 2017, the Defendant sent the Plaintiff a debt collection
letter by mail, indicating that the Plaintiff owed $1,936.27 to
Bank of America. It listed the Plaintiff's current and previous
account numbers and disclosed the amount of interest, charges,
fees, and credits associated with the debt.
Approximately one year after receiving the letter, the Plaintiff
filed suit against the Defendant on behalf of herself and a class
of other similarly-situated consumers. She alleges that the section
of the Defendant's letter that directs her and other recipients to
"send payment and correspondence" to a specific post office box
address is misleading, as it would lead an unsophisticated consumer
to conclude that her option to dispute the debt could only be in
writing and that she has no option to make an oral dispute. Though
the Plaintiff acknowledges that the letter provides the Defendant's
phone number, she alleges that the phone number contained in the
letter refers only to payments" rather than to disputes. Further,
she alleges that the bolded language directing consumers to send
payments and correspondence to the Defendant's post office box
address overshadows and contradicts]the validation notice that
provided consumers with information about their rights, as it
leaves them with a false notion that disputing an alleged debt
requires a written communication to be sent to the above mentioned
address.
The Plaintiff asserts that the debt collection letter violates
three sections of the FDCPA: (1) section 1692e, which prohibits the
general use of any false, deceptive, or misleading representation
or means in connection with the collection of any debt; (2) section
1692e(10), which specifically prohibits the use of any false
representation or deceptive means to collect or attempt to collect
any debt or to obtain information concerning a consumer; and (3)
section 1692g(a)(4), which requires the debt collection agency to
inform a consumer that she may seek verification of the debt by
submitting a written dispute to the collector. Section
1692g(a)(3) is not mentioned by name in the Plaintiff's complaint,
but her opposition brief argues that the letter violates that
statutory section, which requires a debt collector to inform a
consumer that she may dispute the validity of the debt within 30
days of receipt of the notice.
The Defendant moved to dismiss the Plaintiff's complaint on Nov. 5,
2018, and the motion was fully-briefed on Dec. 31, 2018. In the
meantime, on consent of both parties, Magistrate Judge Bulsara
stayed discovery in the case pending the Court's decision on the
Defendant's motion to dismiss.
Judge Ross finds that courts within the Second Circuit have not
hesitated to dismiss claims brought pursuant to the FDCPA where the
debt collection letter alleged to have run afoul of the statute
does not, as a matter of law, provide the basis for a statutory
violation.
She also finds that the Plaintiff has failed to state a claim under
15 U.S.C. Section 1692g. She concludes that the Plaintiff has
failed to meet her pleading obligation, as the debt collection
letter sent by the Defendant contains a validation notice that
accurately conveys the information required by the statute and does
not "overshadow or contradict" that notice simply by providing
consumers with an address for them to send "payments and
correspondence."
For largely the same reasons that the Plaintiff fails to state a
claim under section 1692g, the Judge also fails to demonstrate that
she is entitled to relief under section 1692e. The Plaintiff's
section 1692e claim rests on language in the debt collection letter
that the Judge has already determined is not misleading and would
not lead an unsophisticated consumer to be uncertain as to her
rights.
Judge Ross granted the Defendant's motion to dismiss the
Plaintiff's complaint is granted in its entirety. The Clerk of
Court is directed to enter judgment accordingly and close the
case.
A full-text copy of the Court's Feb 19, 2019 Opinion and Order is
available at https://is.gd/lu3Mmv from Leagle.com.
Mindy Goodman, on behalf of herself and all other similarly
situated consumers, Plaintiff, represented by Yanina Tabachnikova,
Law Office Of Yanina Tabachnikova, P.C. & Maxim Maximov --
m@maximovlaw.com -- Maxim Maximov, LLP.
Mercantile Adjustment Bureau, LLC, Defendant, represented by
Brendan Hoffman Little -- blittle@lippes.com -- Lippes Mathias
Wexler Friedman LLP.
MERCHANTS & MEDICAL: Voeks & Fote File Placeholder Class Cert. Bid
------------------------------------------------------------------
In the class action lawsuit captioned JULIE VOEKS and JOSEPH FOTE,
Individually and on Behalf of All Others Similarly Situated, the
Plaintiffs, v. MERCHANTS & MEDICAL CREDIT CORPORATION INC. and
CAPITAL ONE N.A., the Defendants, Case No. 2:19-cv-00304-NJ (E.D.
Wisc.), the Plaintiff asks the Court for an order on Feb. 21, 2019,
certifying classes in this case, appointing the Plaintiff as class
representative, and appointing Ademi & O'Reilly, LLP as Class
Counsel, and for such other and further relief as the Court may
deem appropriate.
The Plaintiffs further ask that the Court stay this class
certification motion until an amended motion for class
certification is filed, and that the Court grant the parties relief
from the local rules' automatic briefing schedule and requirement
that Plaintiffs file a brief and supporting documents in support of
this motion.
To avoid the risk of a Defendant mooting a putative class
representative's individual stake in the litigation, the Seventh
Circuit instructed the Plaintiffs to file a certification motion
with the complaint, along with a motion to stay briefing on the
certification motion. Damasco v. Clearwire Corp., 662 F.3d 891, 896
(7th Cir. 2011), overruled on other grounds, Chapman v. First
Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015) ("The pendency of
that motion [for class certification] protects a putative class
from attempts to buy off the named plaintiffs."). While the Seventh
Circuit has held that the specific procedure described in
Campbell-Ewald cannot force the individual settlement of a class
representative's claims, the same decision cautions that other
methods may prevent a plaintiff from representing a class. Fulton
Dental, LLC v. Bisco, Inc., 860 F.3d 541, 545-46 (7th Cir.
2017).[CC]
Attorneys for the Plaintiffs:
Mark A. Eldridge, Esq.
John D. Blythin, Esq.
Jesse Fruchter, Esq.
Ben J. Slatky, Esq.
Ademi & O'Reilly, LLP
3620 East Layton Avenue
Cudahy, WI 53110
Telephone: (414) 482-8000
Facsimile: (414) 482-8001
E-mail: jblythin@ademilaw.com
meldridge@ademilaw.com
jfruchter@ademilaw.com
bslatky@ademilaw.com
MIAMI, FL: Judge Abolishes Homeless Consent Decree
--------------------------------------------------
The Associated Press reports that a federal judge has abolished a
consent decree that prevented Miami police from arresting homeless
people for loitering, sleeping on sidewalks, or urinating in
public.
U.S. District Judge Federico Moreno on Feb. 15 issued an opinion
dissolving the Pottinger Agreement that established protections for
Miami's homeless population from police harassment.
The Miami Herald reported that Moreno decided court oversight was
no longer necessary because of the shelters and social services now
available to assist the city's homeless.
The Pottinger Agreement was the result of a class action lawsuit
brought by 5,000 homeless people against the city in the early
1990s. [GN]
MIDLAND CREDIT: Contreras Suit Moved to Eastern District New York
-----------------------------------------------------------------
A case, Keyla Contreras on behalf of herself and all others
similarly situated, the Plaintiff, vs. Midland Credit Management,
Inc., the Defendant, Case No. 618411/2018, 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. 15, 2019. The Eastern District of New York Court Clerk
assigned Case No. 2:19-cv-00913 to the proceeding. The suit 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.
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
- and -
Ellen Beth Silverman, Esq.
HINSHAW & CULLERTSON
800 Third Avenue, 13th Floor
New York, NY 10022
Telephone: (212) 471-6229
Facsimile: (212) 935-1166
E-mail: esilverman@hinshawlaw.com
MOLSON COORS: April 16 Lead Plaintiff Motion Deadline Set
---------------------------------------------------------
Kaskela Law LLC on Feb. 17 disclosed that a shareholder class
action lawsuit has been filed against Molson Coors Brewing Company
(NYSE: TAP) ("Molson Coors" or the "Company") on behalf of
investors who purchased shares of the Company's common stock
between February 14, 2017 and February 12, 2019, inclusive (the
"Class Period").
Molson Coors investors -- including long-term stockholders -- are
encouraged to contact Kaskela Law LLC (D. Seamus Kaskela, Esq.) at
(888) 715-1740, or online at
http://kaskelalaw.com/case/molson-coors/,to discuss their legal
rights and options with respect to this action.
The shareholder class action complaint alleges, among other things,
that Molson Coors and certain of the Company's executive officers
made materially false and misleading statements to investors about
the Company's financial results.
On February 12, 2019, Molson Coors disclosed that its Audit
Committee "concluded that the Company's 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." Additionally, Molson Coors disclosed that
"management of the Company has determined that a material weakness
existed in the Company's internal control over financial reporting
as of December 31, 2018 relating to the design and maintenance of
effective controls over the completeness and accuracy of the
accounting for and disclosure of the income tax effects of acquired
partnership interests." Following this news, shares of the
Company's common stock fell $6.17 per share, or 9.5% in value, to
close on February 12, 2019 at $59.19, on heavy trading volume.
IMPORTANT DEADLINE: Investors who purchased Molson Coors' common
stock during the Class Period may, no later than April 16, 2019,
seek to be appointed as a lead plaintiff representative of the
investor class.
For additional information about this action please contact Kaskela
Law LLC or visit http://kaskelalaw.com/case/molson-coors/.Kaskela
Law LLC exclusively represents investors in state and federal
actions throughout the country. For additional information about
Kaskela Law LLC please visit www.kaskelalaw.com. [GN]
MONSANTO COMPANY: Bevers Sues over Sale of Roundup Products
-----------------------------------------------------------
TERRI J. BEVER and BRUCE A. BEVER, the Plaintiffs, vs. MONSANTO
COMPANY, the Defendant, Case No. 4:19-cv-00236 (E.D. Mo., Feb. 18,
2019), alleges unlawful promotion, marketing, and sale of various
Roundup Products, manufactured and marketed by Monsanto Company, in
violation of the Missouri Merchandising Practices Act, the New York
General Business Law, the California's Unfair Competition Law, the
False Advertising Law, and Consumers Legal Remedies Act.
According to the complaint, the Defendants label, advertise, and
promote their retail Roundup (TM) products, including but not
limited to their Roundup (TM) "Garden Weeds" Weed & Grass Killer
products ("Roundup" or "Roundup Products"), with the false
statement that Roundup's active ingredient, glyphosate, targets an
enzyme that is not found "in people or pets." This statement is
false, misleading, and deceptive, because the enzyme that
glyphosate targets is found in people and pets. Glyphosate targets
the EPSP synthase enzyme, which is utilized by beneficial bacteria
present, including in the gut biome, in humans and other mammals,
such as household pets. This enzyme, in beneficial bacteria, is
critical to the health and wellbeing of humans and other mammals,
including their immune system, digestion, allergies, metabolism,
and brain function.
The Defendants' false statements and omissions regarding glyphosate
and the enzyme it targets are material. There is widespread
controversy and concern around glyphosate and its effects on humans
and animals. For example, EPSP synthase is directly linked to our
general health, and the interference with the gut flora (including
EPSP synthase) can have serious effects on humans and pets.
Instead of being open and honest with consumers, Defendants have
chosen to use a false statement to market their Roundup (TM)
products. In addition to making the false statement, Defendants
omit material, contrary information that might clarify that
statement, namely, that bacteria present in humans and animals
produce and utilize the enzyme targeted by Roundup. Because of the
false statement and material omissions, Defendants have been able
to sell more Roundup Products and to charge more for Roundup than
they otherwise would have been.
The Defendants were unjustly enriched through utilizing the false
statement and omitting material contrary information. The
Plaintiffs and other Class Members who purchased the Roundup
Products suffered economic damages in a similar manner because they
purchased more Roundup Products and/or paid more for Roundup
Products than they would have had they not been deceived, the
lawsuit says.[BN]
Attorneys for the Plaintiffs:
Seth S. Webb, Esq.
BROWN & CROUPPEN, P.C.
211 North Broadway, Suite 1600
St. Louis, MO 63102
E-mail: sethw@getbc.com
Telephone: (314) 222 2222
Facsimile: (314) 421 0359
MONSANTO COMPANY: Bonzos Sue over Sale of Roundup Products
----------------------------------------------------------
GARY L. BONZO and MELISSA BONZO, on behalf of themselves and all
others similarly situated, the Plaintiffs, vs. MONSANTO COMPANY,
the Defendant, Case No. 4:19-cv-00241 (E.D. Mo., Feb. 19, 2019),
alleges unlawful promotion, marketing, and sale of various Roundup
Products, manufactured and marketed by Defendant Monsanto Company
and distributed by Scotts Miracle-Gro Products, Inc., in violation
of the Missouri Merchandising Practices Act, the New York General
Business Law, the California's Unfair Competition Law, the False
Advertising Law, and Consumers Legal Remedies Act.
According to the complaint, the Defendants label, advertise, and
promote their retail Roundup (TM) products, including but not
limited to their Roundup (TM) "Garden Weeds" Weed & Grass Killer
products ("Roundup" or "Roundup Products"), with the false
statement that Roundup's active ingredient, glyphosate, targets an
enzyme that is not found "in people or pets." This statement is
false, misleading, and deceptive, because the enzyme that
glyphosate targets is found in people and pets. Glyphosate targets
the EPSP synthase enzyme, which is utilized by beneficial bacteria
present, including in the gut biome, in humans and other mammals,
such as household pets. This enzyme, in beneficial bacteria, is
critical to the health and wellbeing of humans and other mammals,
including their immune system, digestion, allergies, metabolism,
and brain function.
Roundup refers to all formulations of Defendant Roundup products,
including, but not limited to, Roundup Concentrate Poison Ivy and
Tough Brush Killer 1, Roundup Custom Herbicide, Roundup D-Pak
herbicide, Roundup Dry Concentrate, Roundup Export Herbicide,
Roundup Fence & Hard Edger 1, Roundup Garden Foam Weed & Grass
Killer, Roundup Grass and Weed Killer, Roundup Herbicide, and
Roundup Original 2k herbicide.
The Defendants' false statements and omissions regarding glyphosate
and the enzyme it targets are material. There is widespread
controversy and concern around glyphosate and its effects on humans
and animals. For example, EPSP synthase is directly linked to our
general health, and the interference with the gut flora (including
EPSP synthase) can have serious effects on humans and pets.
Instead of being open and honest with consumers, Defendants have
chosen to use a false statement to market their Roundup (TM)
products. In addition to making the false statement, Defendants
omit material, contrary information that might clarify that
statement, namely, that bacteria present in humans and animals
produce and utilize the enzyme targeted by Roundup. Because of the
false statement and material omissions, Defendants have been able
to sell more Roundup Products and to charge more for Roundup than
they otherwise would have been.
The Defendants were unjustly enriched through utilizing the false
statement and omitting material contrary information. The
Plaintiffs and other Class Members who purchased the Roundup
Products suffered economic damages in a similar manner because they
purchased more Roundup Products and/or paid more for Roundup
Products than they would have had they not been deceived, the
lawsuit says.[BN]
Attorneys for the Plaintiffs:
Seth S. Webb, Eq.
BROWN & CROUPPEN, P.C.
211 North Broadway, Suite 1600
St. Louis, MO 63102
Telephone: (314) 222-2222
Facsimile: (314) 421-0359
E-mail: sethw@getbc.com
MS RENTALS: Court Dismisses Bid for Class Certification as Moot
---------------------------------------------------------------
MS RENTALS, LLC, and GARNER PROPERTIES & MANAGEMENT, LLC, the
Plaintiffs, v. CITY OF DETROIT, the Defendant, Case No.
2:18-cv-10165-DML-MKM (E.D. Mich.), the Hon. Judge David M. Lawson
entered an order:
1. granting in part and denying in part Defendant's motion
for summary judgment;
2. granting the Plaintiffs partial summary judgment under
Federal Rule of civil Procedure 56(f)(1) declaring pre-
amendment version of section 9-1-35(b) of the City of
Detroit's Property Maintenance Code unconstitutional;
3. dismissing with prejudice Counts I, III, IV, V, VI, VII,
and part of Count II of the complaint seeking damages;
and
4. dismissing the motion for class certification as moot.
On January 15, 2018, the Plaintiffs filed a seven-count complaint
in this putative class action. They allege that the City violated
all Detroit residential property owners' rights under the
Fourteenth Amendment's Due Process Clause (Count I) and the Fourth
Amendment (Count II) and raise a claim of assumpsit under state law
(Count III). The complaint also includes claims for municipal
liability (Count IV), injunctive and declaratory relief (Counts V
and VI), and liability under 42 U.S.C. section 1983 (Count VII).
The lawsuit contends that the pre-amendment version of section
9-1-35(b) of the City's PMC is unconstitutional under the Fourth
Amendment because it authorized warrantless, nonconsensual
inspections of rental properties without allowing the landlord an
opportunity to seek a precompliance review. The Plaintiffs are
entitled to a declaratory judgment to that effect. The subsequent
amendment of that ordinance does render the issue moot, but it does
obviate the need for injunctive relief. The plaintiffs have not
brought forth evidence creating a fact question on any other aspect
of their complaint.
The plaintiffs brought the putative class action alleging that
Detroit's PMC is unconstitutional because the version of the PMC in
effect when the case was filed authorizes rental property
inspections without a warrant or an opportunity for precompliance
review. Asserting various legal theories, the plaintiffs ask the
Court to void the PMC and order the City to return all fees and
fines collected under it.[CC]
MUNICIPAL EMPLOYEES: Denial of Counsel Fee in Johnson Suit Affirmed
-------------------------------------------------------------------
In the case, JEFFREY JOHNSON, ROBERT ORLICH, TERRY T. WHITE, FRANK
T. LOWERY, and MUNICIPAL EMPLOYEES SOCIETY, as Associational
Representatives for Its Members, Plaintiffs-Appellants, v. THE
MUNICIPAL EMPLOYEES', OFFICERS', & OFFICIALS' ANNUITY & BENEFIT
FUND OF CHICAGO and THE LABORERS' & RETIREMENT BOARD EMPLOYEES'
ANNUITY & BENEFIT FUND OF CHICAGO, Defendants-Appellees, Case No.
1-17-0732 (Ill. App.), Judge Michael B. Hyman of the Appellate
Court of Illinois for the First District, Second Division, affirmed
the trial court's order denying the Plaintiffs' counsel's fee
petition in its entirety as impermissible under the Illinois
Pension Code.
As summarized in Jones v. Municipal Employees' Annuity & Benefit
Fund, Illinois has established public pension systems for public
employees of the City of Chicago, including the Municipal
Employees', Officers', and Officials' Annuity and Benefit Fund
("MEABF"), and the Laborers' and Retirement Board Employees'
Annuity and Benefit Fund ("LABF"). The benefits under MEABF and
LABF come from three sources: the City, the employees, and
investment returns. Historically, the public pensions have been
underfunded. Uncertainty associated with deficiencies led to the
adoption of the pension protection clause in the Illinois
Constitution. Actuarial valuation of the funds continued to show
serious shortfalls, however.
The General Assembly adopted legislative strategies to deal with
some of the underfunded pensions. Public Act 98-641, passed in
2014, consisted of a comprehensive set of provisions designed to
reduce annuity benefits for MEABF and LABF members. After Public
Act 98-641 became law, MEABF participants challenged its
constitutionality and sought to enjoin enforcement: Jones v. MEABF,
No. 2014-CH-20027 (Cir. Ct. Cook County), and Johnson v. MEABF, No.
2014-CH-20668 (Cir. Ct. Cook County). Both complaints sought a
declaration that Public Act 98-641 violated the pension protection
clause by diminishing pension benefits of the fund's participants.
The Jones v. MEABF plaintiffs included 14 individual participants
in the MEABF, including current employees and retirees receiving an
annuity, and four labor unions whose members participated in the
MEABF. The defendants included MEABF and its board of trustees.
The law firm of Freeborn & Peters LLP represented the plaintiffs.
Ten days later, Krislov & Associates, Ltd. filed the Johnson v.
MEABF lawsuit on behalf of one current participant in the MEABF,
three retired participants receiving annuities from the LABF, and
the Municipal Employees Society of Chicago. The Defendants
included MEABF and LABF. The City of Chicago and the State
intervened, and the cases were consolidated. Ultimately, the
parties filed cross-motions for summary judgment, with the State
adopting the City's motion.
The trial court declared that Public Act 98-641, by reducing the
value of annual annuity increases, violated the constitution's
pension protection clause. The City, the State, MEABF, and LABF
appealed directly to the Illinois Supreme Court under Rule 302(a).
In March 2016, the supreme court affirmed, declaring the entire
statute unconstitutional.
Krislov, the Johnson v. MEABF Plaintiffs' counsel, petitioned for
attorneys' fees against the City, MEABF, and LABF under the Civil
Rights Act in the amount of $219,041 representing the firm's
statutory lodestar fee. In addition, under a common fund theory,
Krislov sought an additional $750,000 from the 3% annual annuity
increase for plan members.
Deciding as a matter of law that attorneys' fees were not available
under either approach, the trial court denied with prejudice
Krislov's petition, as well as a motion for class certification and
a motion to compel production of his opponents' time records.
Krislov requests that the Court reverses and remands with
directions to award an appropriate fee, considering both statutory
lodestar and common fund sources. Krislov also requests it orders
production of the time records and certification of a class for
purposes of applying the common fund doctrine.
Judge Hyman finds that the Civil Rights Act cannot serve as a means
for awarding attorneys' fees, as plaintiffs in Jones v. MEABF were
not aggrieved parties suing under the Illinois Constitution on the
subject of discrimination based on race, color, national origin, or
gender.
The Judge next finds that the Illinois Supreme Court recently
considered the constitutionality of changes to the Pension Code in
Carmichael v. Laborers' & Retirement Board Employees' Annuity &
Benefit Fund of Chicago. The court reiterated that questions on
legislative intent and clarity of the language in a pension statute
be "liberally construed in favor of the rights of the pensioner,
and that pension benefits "cannot be diminished or impaired.
Accordingly, the Judge holds that the statute bars garnishing the
plan participants' pension entitlements for any purpose.
Krislov wants the Court to follow cases involving the Employment
Retirement Income Security Act of 1974, citing Bishop v. Burgard,
as allowing attorneys' fees. But Bishop is inapposite both
factually and legally, the Judge finds. Unlike in Bishop, there is
no subrogation agreement in the instant case, and Krislov proposes
taking money directly from the members' pension checks, which the
state supreme court has repeatedly rebuffed.
Finally, he finds that Krislov cites no basis for his request for
an award of both statutory fees and common fund fees, not one or
the other. Also, even had fees been obtainable, Krislov leaves
unexplained why recovery of "reasonable attorneys' fees under
section 5(c) wouldn't have afforded sufficient compensation alone.
Given his resolution, Judge Hyman need not address the remaining
issues asserted by Krislov. Accordingly, he affirmed.
A full-text copy of the Court's Feb 19, 2019 Opinion is available
at https://is.gd/ylX22H from Leagle.com.
NATIONSTAR MORTGAGE: Court Narrows Claims in Amended Contreras Suit
-------------------------------------------------------------------
In the case, EUGENIO AND ROSA CONTRERAS, WILLIAM PHILLIPS, TERESA
BARNEY, KEITH AND TERESA MARCEL, SHERLIE CHARLOT, JENNIE MILLER,
and EDWIN YAGER, on behalf of themselves and all others similarly
situated, Plaintiffs, v. NATIONSTAR MORTGAGE LLC, a Delaware
Limited Liability Company; SOLUTIONSTAR, LLC (N/K/A XOME HOLDINGS
LLC), a Delaware Limited Liability Company; and DOES 1 through
1000, Defendants, Case No. 2:16-cv-00302-MCE-EFB (E.D. Cal.), Judge
Morrison C. England, Jr. of the U.S. District Court for the Eastern
District of California granted in part and denied in part the
Defendants' Motion to Dismiss parts of the Second Amended
Complaint.
Through the class action, the Named Plaintiffs, individually and
behalf of others similarly situated, seek relief from the
Defendants, arising from fees assessed during the course of the
loan. According to the operative SAC, both Nationstar and
Solutionstar are subsidiaries of Nationstar Mortgage Holdings, Inc.
The Plaintiffs claim that the Defendants unfairly and excessively
charged them for distressed mortgage fees. Specifically, they
allege the Defendants engaged in two schemes to generate
unwarranted fees: an Inspection Fee Scheme and a Pay-to-Pay Scheme.
The Plaintiffs further allege that Nationstar orders these
property inspections through its affiliate Solutionstar to unfairly
mark-up charges to borrowers.
Plaintiffs Contreras, Phillips, Barney, Marcel, Charlot, and
O'Halloran, on behalf of themselves, the nationwide classes, and
their respective state-specific sub-classes, allege Nationstar used
a computerized loan servicing platform that automatically ordered
an inspection of the mortgaged property when a borrower defaulted
on a loan. Nationstar sent these orders to Solutionstar, who in
turn paid a third party to perform the actual inspection so that
Solutionstar could mark up the inspection fees charged to borrowers
("Inspection Fee Scheme").
Plaintiffs Yager, Miller, and Charlot, also on behalf of
themselves, the nationwide classes, and their respective
state-specific sub-classes, further contend that Nationstar charged
them a fee to make online or telephone payments ("Pay-to-Pay
Scheme"). The Plaintiffs say this fee was charged only to
defaulting borrowers or those who appeared to be at risk of
default.
Specifically, the Plaintiffs allege common law claims for breach of
contract against Nationstar (Count I), breach of the implied
covenant of good faith and fair dealing against Nationstar (Count
II), and unjust enrichment against Nationstar (Count III). Their
Complaint also alleges violations of: (1) Oregon's Unlawful Trade
Practices Act ("UTPA") (Count IV); California's Unfair Competition
Law ("UCL")(Count V); (3) Rosenthal Fair Debt Collection Practices
Act (Count VI); (4) Arizona Consumer Fraud Act ("ACFA"), (Count
VII); Florida's Unfair and Deceptive Trade Practices Act ("DUTPA")
(Count IX); Illinois' Consumer Fraud and Deceptive Business
Practices Act ("CFDBPA") (Count X); and the Racketeer Influenced
and Corrupt Organizations Act ("RICO"), (Count XI).
Presently before the Court is the Defendants' Motion to Dismiss
parts of the SAC. The parties filed timely oppositions and replies
to the motion.
Nationstar challenges the sufficiency of the notice, specifically
pointing out that the Letters fail to allege which fees were
wrongfully assessed or why. Judge England is not persuaded by this
argument from Nationstar. He says the Letters refer to specific
paragraphs in the original Complaint with corresponding factual
allegations. In addition, the Plaintiffs sent Nationstar notice
and cure letters in response to the Court's order on the
Defendants' first Motion to Dismiss. The Judge has no doubt from
these allegations that Nationstar was fully aware of the claims
made by the Plaintiffs Contreras and Phillips. Accordingly,
Nationstar's motion to dismiss Contreras and Phillips' causes of
action on grounds of insufficient notice is denied.
Phillips contends that each time the Defendants order and bill him
for unreasonable inspections, they have made a new 'sale of
merchandise' by means of false and misleading statements. The
Judge disagrees. He finds that Phillips' claim that Nationstar
made a "false" promise to charge reasonable fees does not relate to
the sale of merchandise, but instead to actions taken on behalf of
merchandise previously purchased. Accordingly, Nationstar's motion
to dismiss Phillips' ACFA claim is granted with leave to amend.
The Judge granted the Defendant's motion to dismiss Yager's
Rosenthal Act cause of action on statute of limitations grounds
with one final leave to amend. First, the one-year limitations
period began when Yager was charged the fees in January 2013, not
when he obtained legal advice in December 2015. Second, Yager
still fails to allege facts sufficient to show the potential
applicability of the equitable tolling doctrine. His claim that he
did not learn the purpose of the fees until he consulted counsel is
not an excusable delay sufficient to invoke the Court's application
of equitable tolling. Indeed, nothing in the SAC indicates that
Yager was induced or tricked by the Defendant's misconduct into
allowing the filing deadline to pass.
The Judge finds that (i) the Plaintiffs have sufficiently pleaded
proximate cause; (ii) the Plaintiffs have adequately pleaded the
requisite predicate acts; and (iii) the Plaintiffs' RICO claim
adequately pleads the existence of an associated-in-fact RICO
enterprise. Given the foregoing, the Judge denies the Defendants'
motion to dismiss the Plaintiffs' RICO claim.
Finally, the Plaintiffs also allege, under 18 U.S.C. Section
1962(d), a conspiracy to violate the general RICO violations
already set forth. The Defendants argue the conspiracy claim fails
because it depends primarily on the success of its assertion that
the Plaintiffs have failed to allege a substantive RICO violation
under Section 1962(c). The Judge finds that the Plaintiffs'
allegations are sufficient so the motion to dismiss the conspiracy
claim is denied as well.
Consistent with the foregoing, Judge England granted in part and
denied in part the Defendants' Motion to Dismiss.
Not later than 20 days following the date the Order is
electronically filed, the Plaintiffs may (but are not required to)
file an amended complaint. If no amended complaint is timely
filed, the causes of action dismissed by virtue of the Order will
be deemed dismissed with prejudice upon no further notice to the
parties.
A full-text copy of the Court's Feb 19, 2019 Memorandum and Order
is available at https://is.gd/nC7gtu from Leagle.com.
Eugenio Contreras, Teresa Barney, Keith Marcel, Teresa Marcel,
Sherlie Charlot & Jennie Miller, Plaintiffs, represented by Derek
W. Loeser -- dloeser@kellerrohrback.com -- Keller Rohrback L.L.P.,
pro hac vice, Gretchen S. Obrist -- gobrist@kellerrohrback.com --
Keller Rohrback L.L.P., pro hac vice, Ian J. Mensher --
imesher@kellerrohrback.com -- Keller Rohrback L.L.P., pro hac vice,
Thomas Loeser -- toml@hbsslaw.com -- Hagens Berman Sobol Shapiro
LLP & Dean N. Kawamoto -- dkawamoto@kellerrohrback.com -- Keller
Rohrback L.L.P.
Rosa Contreras, Plaintiff, represented by Derek W. Loeser, Keller
Rohrback L.L.P., pro hac vice, Gretchen S. Obrist, Keller Rohrback
L.L.P., pro hac vice, Ian J. Mensher, Keller Rohrback L.L.P., pro
hac vice, Rachel E. Morowitz, Keller Rohrback L.L.P., pro hac vice,
Thomas Loeser, Hagens Berman Sobol Shapiro LLP, Steve W. Berman,
Hagens Berman Sobol Shapiro LLP, pro hac vice & Dean N. Kawamoto,
Keller Rohrback L.L.P.
William Phillips, Melva Phillips, Colleen Ann O'Halloran & Edward
Yager, Plaintiffs, represented by Ian J. Mensher, Keller Rohrback
L.L.P., pro hac vice, Thomas Loeser, Hagens Berman Sobol Shapiro
LLP & Dean N. Kawamoto, Keller Rohrback L.L.P. Edwin Yager,
Plaintiff, represented by Ian J. Mensher, Keller Rohrback L.L.P.,
Rachel E. Morowitz, Keller Rohrback L.L.P., pro hac vice & Dean N.
Kawamoto, Keller Rohrback L.L.P.
Nationstar, LLC, Defendant, represented by Erik Wayne Kemp --
ek@severson.com -- Severson & Werson, PC & John B. Sullivan --
jbs@severson.com -- Severson & Werson.
Solutionstar, LLC, Defendant, represented by Erik Wayne Kemp,
Severson & Werson, PC, Mary Catherine Kamka -- mkk@severson.com --
Severson and Werson & John B. Sullivan, Severson & Werson.
Nationstar Mortgage LLC, Defendant, represented by Erik Wayne Kemp,
Severson & Werson, PC, Gregory Lane Huber, Severson & Werson, Mary
Kate Sullivan, Severson & Werson, PC, John B. Sullivan, Severson &
Werson & Megan Catherine Kelly, Severson & Werson.
NCAA: Brown Sues over Safety of Temple Student-Athletes
-------------------------------------------------------
MORKEITH BROWN, individually and on behalf of all others similarly
situated, the Plaintiff, vs. NATIONAL COLLEGIATE ATHLETIC
ASSOCIATION, the Defendant, Case No. 1:19-cv-00712-TWP-MJD (S.D.
Ind. Feb. 18, 2019), seeks redress for injuries sustained a result
of Defendant's reckless disregard for the health and safety of
Temple University ("Temple") student-athletes.
While in school, Temple 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 Temple 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 Temple 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: Helminiak Sues over Safety of UND Student-Athletes
--------------------------------------------------------
MARK HELMINIAK, individually and on behalf of all others similarly
situated, the Plaintiff, vs. NATIONAL COLLEGIATE ATHLETIC
ASSOCIATION, the Defendant, Case No. 1:19-cv-00711-TWP-MJD (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 North Dakota ("UND") student-athletes.
While in school, UND 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 UND 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 UND 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
NEPTUNE SOCIETY: Goodwin Sues Over Illegal Conversation Recordings
------------------------------------------------------------------
JENNIFER GOODWIN, Individually and on Behalf of Others Similarly
Situated v. NEPTUNE SOCIETY OF AMERICA, INC., Case No. 19STCV06358
(Cal. Super., Los Angeles Cty., February 26, 2019), is brought for
damages and injunctive relief against the Defendant for its
unauthorized and illegal recordings of conversations with the
Plaintiff without any notification nor warning to her or Class
Members, causing them damages.
Neptune Society is a corporation organized under the laws of
California, and registered to conduct business in California with
its principal place of business in Texas.
Neptune Society is the largest provider of cremation services in
the nation.[BN]
The Plaintiff is represented by:
Abbas Kazerounian, Esq.
Jason Ibey, Esq.
Nicholas Barthel, Esq.
KAZEROUNI LAW GROUP, APC
245 Fischer Avenue, Unit D1
Costa Mesa, CA 92626
Telephone: (800) 400-6808
Facsimile: (800) 520-5523
E-mail: ak@kazlg.com
jason@kazlg.com
nicholas@kazlg.com
- and -
Joshua B. Swigart, Esq.
HYDE & SWIGART
2221 Camino Del Rio South, Suite 101
San Diego, CA 92108
Telephone: (619) 233-7770
Facsimile: (619) 297-1022
E-mail: josh@westcoastlitigation.com
NEUSTAR INC: Court Dismisses Amended Teamster Securities Suit
-------------------------------------------------------------
In the case, TEAMSTERS LOCAL 210 AFFILIATED PENSION TRUST FUND,
Individually and on Behalf of All Others Similarly Situated,
Plaintiff, v. NEUSTAR, INC., et al., Defendants, Civil Action No.
1-17-cv-1145 (AJT/JFA) (E.D. Va.), Judge Anthony J. Trenga of the
U.S. District Court for the Eastern District of Virginia,
Alexandria Division, granted the Defendants' Motion to Dismiss
Amended Complaint.
In the securities class action brought pursuant to Sections 14(a)
and 20(a) of the Securities Exchange Act of 1934, the Plaintiffs
allege that the Defendants -- Neustar and members of its senior
management -- published a false and misleading statement in
violation of Section 14(a) when a proxy solicitation stated an
estimated date that proved incorrect with respect to when Neustar
would transfer its duties as lead administrator of the Number
Portability Administration Center ("NPAC") to another vendor, while
not also disclosing information that raised concerns about the
accuracy of that estimated date.
Neustar is a government contractor that served as the Local Number
Portability Administrator ("LNPA") pursuant to the Number
Portability Administration Center Contract awarded to it by the
Federal Communications Commission ("FCC"). In June 2016, Neustar
hired J.P. Morgan as its financial advisor and announced that it
would separate into two public companies. After receiving several
offers, management chose to continue negotiations with the company
known as Golden Gate, which had also approached management about
the possibility of a sale transaction. Neustar Management's
decision to proceed with Golden Gate was based largely on an
evaluation of Golden Gate's offer in comparison to the other
interested parties' offers in light of an estimated transition date
for the NPAC Contract of Sept. 30, 2018 and the calculations of
Neustar's value based on that estimated date.
On Dec. 13, 2016, J.P. Morgan delivered its fairness opinion on
Golden Gate's offer to the Board, which approved the offer and
executed the Merger Agreement. Following Board approval, Neustar's
management then presented the merger to the company's shareholders,
who approved the Merger Agreement on March 14, 2017. On Feb. 3,
2017, before the shareholder vote, the Board issued a Proxy
Statement to the shareholders. The Proxy Statement referenced
repeatedly the estimated transition date of Sept. 30, 2018 and its
importance in management's ultimate decision to accept Golden
Gate's merger proposal.
Between the issuance of the Proxy Statement and the shareholders'
vote to approve the Merger Agreement, Neustar's outside legal
counsel sent a report to the FCC called the Number Portability
Administration Center Transition Status Report, which was designed
to apprise the FCC of the current status of the NPAC transition.
The Report was authored by three Information Technology specialists
who reported to Neustar's Chief Financial Officer.
Based on the claimed failure of the NAPM and the Transition
Oversight Manager to share transition governance, risk, and
schedule information, the authors expressed concerns with the May
2018 estimated transition date developed by the Transition
Oversight Manager, an independent third party appointed by the FCC.
Based on the various problems the Report identified, its authors
estimated that a 2019 completion date appeared more likely than the
May 2018 date, and that without some fairly significant changes,
even 2019 might be optimistic.
After receiving the Report, the Transition Oversight Manager,
acting through NAPM (the organization that hired the Transition
Oversight Manager), responded by accusing Neustar of being solely
at fault for any potential delays in the transition date. After
Neustar continued to communicate its concerns about the status of
the transition, the transition date was in fact delayed
significantly, and others blamed these delays on Neustar's
mismanagement, or perhaps even intentional hesitation, in managing
the transition. Despite relaying to shareholders the estimated
transition date of September 30, 2018, which was four months later
than the Transition Oversight Manager's target transition date of
May 25, 2018, the Proxy Statement did not contain any reference to
the Transition Report and the warnings contained within it.
The Neustar shareholders approved the merger on March 14, 2017. On
Oct. 10, 2017, the Plaintiffs filed the action and on Jan. 19,
2018, filed an Amended Complaint. On Feb. 2, 2018, Defendants
filed the Motion.
The Plaintiffs contend that because material information was
withheld from shareholders concerning the estimated transition date
of Sept. 30, 2018, shareholders approved the sale of the
corporation to Golden Gate, at management's recommendation, based
on a significantly undervalued price, which did not take into
account the continued revenues Neustar would realize from the NPAC
Contract as a result of the greatly delayed transition date.
More specifically, the Plaintiffs contend that the lack of any
reference in the Proxy Statement to the Transition Report and the
warnings contained in it made materially misleading: (1) J.P.
Morgan's conclusion that the Merger Consideration was fair; (2) the
Board's recommendation that the corporation's shareholders vote for
the Transaction; (3) the Board's rejection of competing proposals
to Golden Gate's that would have turned out more favorable to
shareholders in light of the later transition date (particularly
the proposal including a CVR associated with the NPAC Contract);
and (4) Neustar's future revenue projections, adjusted EBITDA, and
unlevered free cash flow. According to Plaintiffs, these
misleading statements violated Sections 14(a) and 20(a).
Judge Trenga finds that the Plaintiffs have failed to allege facts
that create a strong inference that at the time they issued the
Proxy Statement, the Defendants could not have reasonably held the
opinion that a transition would occur by Sept. 30, 2018. The only
facts alleged in the Complaint that arguably support this
contention is the Transition Report, which warned that the
transition might not occur by the May 25, 2018 transition
completion target set by the Transition Oversight Manager without
significant changes to the current transition process, and that
without such changes, it would be reasonable to conclude that the
transition would not be completed until sometime in 2019 or even
later. These statements were far from definitive pronouncements
that the transition date would occur later than September 2018.
Within the full context presented by the Proxy Statement, the
omission of the Transition Report does not, standing alone, give
rise to the strong inference that the Defendants did not believe,
or could not have reasonably believed, that a transition would
occur by Sept. 30, 2018, or that the shareholders were not
adequately warned concerning the risk that a transition would not
occur by Sept. 30, 2018. The Plaintiffs have therefore failed to
state a claim under Section 14(a) that a proxy statement contained
a false and misleading statement.
Because he finds that the Plaintiffs have failed to state a claim
against the Defendants for violating Section 14(a), the Judge holds
that the Plaintiffs' control-person liability claim under Section
20(a) also fails.
Accordingly, Judge Trenga granted the Defendants' Motion to Dismiss
Amended Complaint, and dismissed the action. The Clerk is directed
to forward copies of the Order to all the counsel of record.
A full-text copy of the Court's Feb 19, 2019 Memorandum Opinion and
Order is available at https://is.gd/3vIu7T from Leagle.com.
Teamsters Local 210 Affiliated Pension Trust Fund, Individually and
on Behalf of All Others Similarly Situated, Plaintiff, represented
by Craig Crandall Reilly -- craig.reilly@ccreillylaw.com -- Law
Office of Craig C. Reilly.
NeuStar, Inc., Lisa A. Hook, James G. Cullen, Paul D. Ballew, Joel
P. Friedman, Mark N. Greene, Ross K. Ireland, Paul A. Lacouture,
Deborah D. Rieman, Michael J. Rowny & Hellene S. Runtagh,
Defendants, represented by Brian Emory Pumphrey --
bpumphrey@mcguirewoods.com -- McGuireWoods LLP & Elizabeth Anne
Hutson -- ehutson@mcguirewoods.com -- McGuireWoods LLP.
St. Clair County Employees' Retirement System, Movant, represented
by Craig Crandall Reilly, Law Office of Craig C. Reilly.
NEW ENGLAND MOTOR: Faces Class Action Over Unpaid Employee Wages
----------------------------------------------------------------
69 News reports that a law firm is pursuing an employee class
action lawsuit against New England Motor Freight.
The firm claims the company violated wage laws by failing to
adequately notify employees that the company was shutting down.
A posting on the website for MKLLC Law also claims the company
failed to pay full wages, including vacation time.
The New Jersey-based company, which had a hub in Carbon County,
filed for chapter 11 bankruptcy.
Workers at the Mahoning Township terminal told 69 News on Feb. 15
was their last day.
Company representatives have not yet returned requests for comment.
[GN]
NEWPENN FINANCIAL: Abat Sues Over Illegal Collection Attempts
-------------------------------------------------------------
Eileen M. Abat, individually, and on behalf of all others similarly
situated, Plaintiff, v. New Penn Financial, LLC, Defendant, Case
No. 19-cv-00627, (N.D. Ill., January 31, 2019), seeks injunction,
actual, statutory and treble damages, attorney fees, litigation
expenses and costs of suit and such further and other relief
pursuant to the Fair Debt Collection Practices Act.
Newpenn Financial operates as Shellpoint Mortgage Servicing, a
national mortgage servicer based in Greenville, South Carolina that
services mortgage loans nationwide. On February 21, 2013, Abat
executed a mortgage in favor of Quicken Loans Inc., securing the
purchase his personal residence in the amount of $183,850. On May
21, 2018, Abat initiated a bankruptcy case in the Northern District
of Illinois by filing a petition for relief under Chapter 7 of the
Bankruptcy Code and on August 27, 2018, his Chapter 13 Plan was
confirmed by the Bankruptcy Court. Despite this, Defendant
continued to attempt to collect the said debt.
The Plaintiff is represented by:
Joseph S. Davidson, Esq.
Mohammed O. Badwan, Esq.
SULAIMAN LAW GROUP, LTD.
2500 South Highland Avenue, Suite 200
Lombard, Illinois 60148
Tel: (630) 575-8181
Email: jdavidson@sulaimanlaw.com
mbadwan@sulaimanlaw.com
NFL: Hernandez's Child Can't Sue Over Brain Disease
---------------------------------------------------
Maryclaire Dale, writing for Associated Press, reports that the
6-year-old daughter of the late NFL player Aaron Hernandez missed a
2014 deadline to opt out of the league's concussion settlement and
can't separately pursue a $20 million suit over his diagnosis of a
degenerative brain disease, a judge ruled.
Yet Hernandez's death in 2017 came too late for his family to seek
up to $4 million in compensation for suicides related to chronic
traumatic encephalopathy under the class action settlement.
Hernandez spent three years with the New England Patriots before
his 2013 arrest on the first of three homicide charges. The
Patriots terminated his $40 million contract, and he never returned
to the NFL.
U.S. District Judge Anita Brody in Philadelphia -- where lawsuits
were consolidated alleging the NFL hid what it knew about the risks
of concussion injuries -- ruled on Feb. 14 that he was effectively
retired and therefore, along with his family, bound by the class
action settlement for NFL retirees.
Under terms of the concussion settlement, the judge said, "The crux
of the issue is whether Hernandez was 'seeking active employment'
as an NFL football player as of July 7, 2014. He was not. On this
date, Hernandez had been imprisoned -- without bail -- for nearly a
year."
Family lawyer Brad Sohn argued that Hernandez had not retired but
hoped to be exonerated and return to the league. His daughter, Mr.
Sohn said, should therefore be able to pursue her "loss of
consortium" lawsuit in her home state of Massachusetts.
"No matter what anybody wants to say about Aaron Hernandez. she
will have to live with the fact that she doesn't have a parent for
the rest of her life," Mr. Sohn said on Feb. 15. "It remains our
position that the NFL is responsible for the damages that she has
because of his CTE."
Hernandez was convicted in the first homicide case in 2015 but
acquitted of an unrelated double homicide in April 2017. He took
his life days later in prison. His conviction was later overturned
because he died before exhausting his appeals.
Doctors later found the 27-year-old Hernandez had advanced CTE on a
level not previously seen in someone that young.
Mr. Sohn, in a brief in the case, called Hernandez "a generational
talent" but said he "entered the NFL in 2010, even though (and
amidst everyone's full knowledge that) he had been investigated for
ties to a brutal 2007 shooting. The NFL paid no mind to this and
let him play."
The daughter involved in the lawsuit is the child of Hernandez's
fiancee, Shayanna Jenkins.
"A.H., a child, committed no crime nor asked to be born into such
tragic circumstances," Mr. Sohn wrote. [GN]
NIANTIC: Settles Homeowners' Pokemon Go Class Action
----------------------------------------------------
Owen S. Good, writing for Polygon, reports that Pokemon Go creator
Niantic reached a settlement with a class action of pissed-off
homeowners that, assuming a judge approves, will resolve the
trespassing and nuisance lawsuits that sprung up shortly after the
game's white-hot 2016 release.
In the settlement, filed on Feb. 14 and first reported by The
Hollywood Reporter, Niantic agrees to deliver courtesy reminders to
users, through the Pokemon Go app, whenever 10 or more are catching
Pokemon in the same location.
Niantic will also work with public parks authorities to remind
users of a location's hours of operation; maintain a database of
complaints; make "commercially reasonable efforts" to resolve them
within 15 days; and grant Pokestop or Gym removals to homeowners
within 40 meters of their properties.
Niantic was sued in August 2016, barely a month after the game's
launch, by several property owners alleging the game was enticing
its users to trespass on private property, and that Niantic was
profiting from such behavior. A New Jersey man brought the first
claim and sought class action status for anyone in the United
States whose property was designated (without approval, of course)
as a Pokestop or a Pokemon Gym.
Shortly after the game's launch, mainstream news accounts were
filled with anecdotes of players wandering onto private property
and mistaken for intruders — and worse. Some places became rather
unfortunate locations for the augmented-reality game, such as
Arlington National Cemetery and the National Holocaust Museum in
Washington.
The settlement is filled with anecdotal accounts of plaintiffs
being bothered by Pokemon Go players. A private condo complex in
Florida said that hundreds of non-residents came to the property
during "peak spawning hours" at night, creating a huge disturbance.
The game had placed a Pokemon Gym at the end of a New York
homeowner's driveway, where "large groups lingered for weeks and
often trespassed and damaged his property." A California woman said
the game had designated her swimming pool as a Pokestop, bringing
players onto her property to damage her lawn and her fence.
Two weeks after the game's launch, the Pokemon Go website added the
means for users to request PokeStops and gyms be created in or
removed from certain locations. The proposed settlement enhances
the public's means of making those requests and Niantic's
responsibility to act on them; the company will also hire an
independent firm to audit its compliance with the terms over a
three-year period.
As for money, the named plaintiffs in the case will receive $1,000
each, while the attorneys are requesting $8 million in fees and
$130,000 in expenses. [GN]
NOVO NORDISK: Court Narrows Insulin Pricing Suit Claims
-------------------------------------------------------
In the case, IN RE INSULIN PRICING LITIGATION, Civil Action No.
3:17-cv-0699-BRM-LHG (D. N.J.), Judge Brian R. Martinotti of the
U.S. District Court for the District of New Jersey granted in part
and denied in part the Defendants' Motion to Dismiss the First
Amended Complaint pursuant to Federal Rules of Civil Procedure
8(a), 9(b), and 12(b)(6).
The Defendants are pharmaceutical companies headquartered in the
United States. They research, develop, and manufacture
prescription medications.
The Plaintiffs are 67 individuals, including one "Jane Doe," who
filed the Complaint on behalf of themselves and a proposed
nationwide class of analog insulin consumers. They bring the
action on behalf of themselves and all others similarly situated
under Federal Rule of Civil Procedure 23(a) and 23(b)(3).
The Plaintiffs define their class as all individual persons in the
United States and its territories who paid any portion of the
purchase price for a prescription of Lantus, Levemir, Novolog,
Apidra, and/or Toujeo at a price calculated by reference to a
benchmark price, AWP (Average Wholesale Price), or WAC (Wholesale
Acquisition Price) for purposes other than resale). Specifically,
the class includes uninsured consumers, consumers in
high-deductible health plans, consumers who reach the Medicare Part
D donut hole, and consumers with high coinsurance rates. The
Plaintiffs request the Court toll the class period to the earliest
date of the Defendant Drug Manufacturers' initiation of the scheme
described.
On Feb. 2, 2017, the first complaint was filed in the matter,
Chaires, et. al v. Novo Nordisk, et al. ("In re Insulin"), Civil
Action No. 17-699(BRM)(LHG). Thereafter, several prospective
Plaintiffs filed complaints in six separate actions: Barnett, et
al. v. Novo Nordisk, Inc., Civil Action No. 17-1580(BRM)(LHG);
Boss, et al. v. CVS Health Corp., Civil Action No.
17-1823(BRM)(LHG); Christensen, et al. v. Novo Nordisk, Inc., et
al., Civil Action No. 17-2678(BRM)(LHG); Valdes, et al. v.
Sanofi-Aventis U.S. LLC, et al., Civil Action No. 17-939(BRM)(LHG);
Carfagno v. Novo Nordisk Inc., Civil Action No. 17-3407(BRM)(LHG);
and Bentele, et al. v. Eli Lilly & Co., Civil No.
18-11479(BRM)(LHG).
On Feb. 22, 2017, the Court consolidated Valdes into In re Insulin
absent objection from any parties, pursuant to Federal Rule of
Civil Procedure 42(a). On Sept. 18, 2017, the Court appointed
Steve W. Berman, Esq. of Hagens Berman and James E. Cecchi, Esq. of
Carella Byrne as the interim lead Plaintiffs' counsel pursuant to
Federal Rule of Civil Procedure 23(g). On Jan. 3, 2018, the Court
consolidated Carfagno into In re Insulin absent objection from any
of the parties. On Jan. 19, 2018, the Court consolidated Barnett,
Boss, and Christensen into In re Insulin.
On March 29, 2018, the Plaintiffs filed the First Amended Class
Action Complaint against the Defendants. On May 14, 2018, the
Defendants filed a Motion to Dismiss Plaintiffs' Complaint,
comprised of a brief in support of dismissing Counts One through
Five of the Complaint and a separate brief in support of dismissing
Counts Six through Fifty-Nine of the Complaint. On July 5, 2018,
the Plaintiff filed an Opposition to the Defendants' Motion to
Dismiss. On Aug. 20, 2018, the Defendants filed a Reply Brief to
the Plaintiffs' Opposition to the Motion to Dismiss.
On Jan. 17, 2019, the Court held oral argument on the limited issue
of the applicability of the indirect purchaser rule to the
Plaintiffs' RICO claims, Counts One and Two. The Plaintiffs'
counsel supplemented the record by way of a letter brief to the
Court on Feb. 5, 2019. The Defendants replied on Feb. 8, 2019.
Judge Martinotti granted in part and denied in part the Defendants'
Motion to Dismiss.
The Judge finds that the Plaintiffs have adequately pled a RICO
conspiracy. The Plaintiffs do not merely allege parallel conduct,
but rather assert facts that suggest a preceding agreement. They
assert not only that the Defendants agreed and conspired to violate
18 U.S.C. Section 1962(c), but also allege separate conspiracies of
pricing enterprises between Novo and Sanofi and each PBM: CVS,
Express Scripts, and OptumRx. These allegations clearly suffice
for a RICO conspiracy, and as such, the Plaintiffs have adequately
pled the existence of a RICO conspiracy.
He also finds that although the Plaintiffs have adequately pled the
various elements of a RICO claim, they failed to allege that they
directly purchased the analog insulin from the Defendants. Rather,
the Plaintiffs claim injury by virtue of inflated prices of their
downstream purchase. Therefore, the Plaintiffs' claims are barred
by the indirect purchaser rule, and as such, the Plaintiffs lack
standing to maintain the action pursuant to RICO. Accordingly, the
Defendants' Motion to Dismiss Plaintiffs' Amended Complaint is
granted without prejudice as to Counts One and Two.
The Judge finds that the Plaintiffs have adequately pled an NJCFA
claim. The allegations in the Plaintiffs' Complaint are pled with
sufficient specificity, the Plaintiffs' Complaint has adequately
pled unlawful conduct pursuant to the NJCFA, and the Plaintiffs
have alleged that they were misled as to the difference between the
benchmark prices and the "true prices" of the medications. As the
Plaintiffs have sufficiently pled unlawful conduct with specificity
as well as an ascertainable loss, the Defendants' Motion to Dismiss
Plaintiffs' Amended Complaint is denied as as to Counts Three,
Four, and Five.
Next, the Judge finds the Plaintiffs have adequately alleged
fraudulent, unfair, or unconscionable conduct, have pled proximate
causation, and have satisfied the requirements of Rule 9(b).
Additionally, they have also adequately pled an ascertainable loss.
Accordingly, the Defendants' Motion to Dismiss Plaintiffs' Amended
Complaint is denied as to Counts Six through Fifty-Nine.
The Judge granted without prejudice the Defendants' Motion to
Dismiss Plaintiffs' Amended Complaint as to Counts Seven, Eight,
Fourteen, Fifteen, Sixteen, Twenty, Thirty-Nine, Forty-Two,
Forty-Three, Forty-Five, Forty-Eight, Forty-Nine, Fifty,
Fifty-Five, Fifty-Six, Fifty-Seven, and Fifty-Nine.
As the Plaintiffs have asserted multiple claims absent allegations
of such products being purchased or used in such jurisdictions,
such claims cannot withstand the Motion to Dismiss. Accordingly,
the Defendants' Motion to Dismiss Plaintiffs' Amended Complaint is
granted without prejudice as to Counts Thirteen, Twenty-Seven,
Twenty-Nine, Thirty, Thirty-Four, Thirty-Five, Thirty-Eight,
Forty-Seven, and Fifty-One.
The Defendants contend that eight of the Plaintiffs' claims must be
dismissed due to state law statutory prohibitions on consumer class
actions in each respective state. The Judge holds that any
supposed, substantive purpose of a state law bar to class-actions
is irrelevant, because Rule 23 "really regulates procedure."
Therefore, the Defendants' contention lacks merit. Accordingly, he
denied the Defendants' Motion to Dismiss Plaintiffs' Amended
Complaint as to Counts Seven, Eighteen, Twenty-Six, Twenty-Seven,
Thirty-Four, Thirty-Six, Forty-Nine, and Fifty-One.
Becasue direct privity of contract is not required under Vermont
law and that the Plaintiffs may assert its claim under the VCFA,
the Judge granted without prejudice the Defendants' Motion to
Dismiss Plaintiffs' Amended Complaint as to Count Twenty-Six, and
denied as to Counts Nine, Twenty-One, and Twenty-Four.
The Defendants assert that six of the Plaintiffs' claims must be
dismissed as the Plaintiffs failed to adequately plead reliance.
These six counts all allege violations of state consumer fraud laws
in which reliance is a necessary element. On the contrary to the
Defendants' contention, the Judge finds that the Plaintiffs
adequately pled reliance upon the Defendants' alleged
misrepresentations, as well as proximate causation to their damages
stemming therefrom. Accordingly, he denied the Defendants' Motion
to Dismiss Plaintiffs' Amended Complaint as to Counts Ten, Twelve,
Eighteen, Thirty-One, Thirty-Eight, and Forty-Seven.
Because the Plaintiffs have sufficiently pled factual allegations
asserting wrongdoing in Tennessee and Wisconsin so as to withstand
Defendants' Motion to Dismiss, the Judge denied the Defendants'
Motion to Dismiss Plaintiffs' Amended Complaint as to Counts
Twenty-Two, Thirty-Nine, Forty-One, and Fifty-One.
Finally, the Defendants contend that the Plaintiffs' claims under
Mississippi law, Count Thirty-Four, and Ohio law, Count Forty-Four,
must be dismissed because they fail to meet procedural requirements
under respective state laws. Because there are no grounds to
dismiss Plaintiffs' claims at Ohio law at this juncture, the Judge
accordingly denied the Defendants' Motion to Dismiss Plaintiffs'
Amended Complaint as to Count Forty-Four.
A full-text copy of the Court's Feb. 15, 2019 Opinion is available
at https://is.gd/hOn4gD from Leagle.com.
In re INSULIN PRICING LITIGATION, Plaintiff, represented by JAMES
E. CECCHI -- JCecchi@carellabyrne.com -- CARELLA BYRNE CECCHI
OLSTEIN BRODY & AGNELLO, P.C.
DONALD CHAIRES, GEORGE DENAULT, JANE DOE, JOHN DOE, BRITTANY
GILLELAND, SARA HASSELBACH, LINDSEY KINHAN, JOSEPH MCLAUGHLIN,
MARILYN PERSON, MATTHEW TEACHMAN, KARYN WOFFORD, SUSAN MARSH,
PATRICIA DAGUE, Hector Valdes Sr., ARTHUR JANZ, SARAH GIERER,
ALETHEA WEIR, JULIA BLANCHETTE, MARY BOBO, Hector Valdes Jr., TERRY
BREWSTER, Janice Langley, Donna Pavlowich, Alton Wright & Matthew
Haney, Plaintiffs, represented by DONALD A. ECKLUND -- Donald A.
Ecklund -- CARELLA, BYRNE, CECCHI, OLSTEIN, BRODY & AGNELLO, P.C.,
ELLEN RELKIN -- erelkin@weitzlux.com -- WEITZ & LUXENBERG, LINDSEY
H. TAYLOR -- LTaylor@carellabyrne.com -- CARELLA, BYRNE, CECCHI,
OLSTEIN, BRODY & AGNELLO, NATALIE FINKELMAN BENNETT, SHEPHERD,
FINKELMAN, MILLER & SHAH, LLP & JAMES E. CECCHI, CARELLA BYRNE
CECCHI OLSTEIN BRODY & AGNELLO, P.C.
Donna Ramsey, Jim Wallan, Diane Halkyard, Kim Wallan & Bertha
Sanders, Plaintiffs, represented by ELLEN RELKIN, WEITZ &
LUXENBERG, MICHAEL D. CRITCHLEY, Critchley, Kinum & DeNoia, LLC &
JAMES E. CECCHI, CARELLA BYRNE CECCHI OLSTEIN BRODY & AGNELLO,
P.C.
Larissa Shirley, Andre Arnold, Adam Levett, Andrew Bauer, Carl
Brockmeyer, Roseanna Barnett, Michael Horton, Julia D' Arrigo,
Hector J. Valdes, Jr. & Jeffrey Liedl, Plaintiffs, represented by
ELLEN RELKIN, WEITZ & LUXENBERG & JAMES E. CECCHI, CARELLA BYRNE
CECCHI OLSTEIN BRODY & AGNELLO, P.C.
GERALD GIRARD, ROBERT LOWMAN, ROBYN RUSHING, HOWARD SCHURR, MARK
SCHLOEMER, MOLLY THOMPSON, PATRICIA QUINT, LAWRENCE MANDEL, JULIANA
PATTON, SEAN MAC AN AIRCHINNIGH, ANNE OLINGER, RICHARD KNAUSS,
MICHELLE GWIN & DAVID HERNANDEZ, Plaintiff Consolidated,
represented by DONALD A. ECKLUND, CARELLA, BYRNE, CECCHI, OLSTEIN,
BRODY & AGNELLO, P.C., ELLEN RELKIN , WEITZ & LUXENBERG, LINDSEY H.
TAYLOR, CARELLA, BYRNE, CECCHI, OLSTEIN, BRODY & AGNELLO, NATALIE
FINKELMAN BENNETT, SHEPHERD, FINKELMAN, MILLER & SHAH, LLP & JAMES
E. CECCHI, CARELLA BYRNE CECCHI OLSTEIN BRODY & AGNELLO, P.C.
NOVO NORDISK INC., Defendant, represented by MICHAEL R. GRIFFINGER
-- mgriffinger@gibbonslaw.com -- GIBBONS, PC, CALVIN KUSHNIR MAY --
cmay@gibbonslaw.com -- GIBBONS PC & CHRISTOPHER T. WALSH --
cwalsh@gibbonslaw.com -- GIBBONS P.C.
ELI LILLY AND COMPANY, Defendant, represented by MELISSA A. GEIST,
REED SMITH LLP & SHANKAR DURAISWAMY, COVINGTON & BURLING LLP.
SANOFI-AVENTIS U.S. LLC, Defendant, represented by LIZA M. WALSH,
WALSH PIZZI O'REILLY FALANGA LLP, KATELYN O'REILLY, WALSH PIZZI
O'REILLY FALANGA LLP & KATHERINE MARIE ROMANO, WALSH PIZZI O'REILLY
& FALANGA LLP.
EXPRESS SCRIPTS HOLDING COMPANY & EXPRESS SCRIPTS, INC., Defendant
Consolidateds, represented by MICHAEL CHARLES ZOGBY, DRINKER BIDDLE
& REATH, LLP.
CVS HEALTH CORP., Defendant Consolidated, represented by JOHN D.
TORTORELLA, MARINO, TORTORELLA & BOYLE, P.C. & KEVIN HARRY MARINO,
MARINO TORTORELLA & BOYLE, PC.
UNITEDHEALTH GROUP, INC. & OPTUMRX, INC., Defendant Consolidateds,
represented by STEVEN L. PENARO, ALSTON & BIRD LLP & THOMAS P.
SCRIVO, O'Toole Scrivo Fernandez Weiner Van Lieu, LLC.
OS RESTAURANT SERVICES: Bradley Seeks to Recover Unpaid Overtime
----------------------------------------------------------------
Christopher J. Bradley, and other similarly-situated individuals,
Plaintiff(s), v. OS Restaurant Services, LLC, individually,
Defendants, Case No. 19-cv-00138, (M.D. Fla., January 31, 2019),
seeks to recover regular wages, overtime compensation, retaliatory
damages, liquidated damages, costs and reasonable attorney's fees
under the provisions of pursuant to the Fair Labor Standards Act.
OS Restaurant Services operates as "Bonefish Grill," a casual
dining seafood restaurant where Bradley worked as an hourly kitchen
manager. He worked minimum of 62 hours weekly and was not paid for
overtime hours at the rate of time and one-half his regular rate
for every hour that he worked in excess of 40 per week. [BN]
Plaintiff is represented by:
Zandro E. Palma, Esq.
ZANDRO E. PALMA, P.A.
9100 S. Dadeland Blvd., Suite 1500
Miami, FL 33156
Telephone: (305) 446-1500
Facsimile: (305) 446-1502
Email: zep@thepalmalawgroup.com
PARTNERS IN PRIMARY: Denial of Bids to Dismiss Rios Suit Endorsed
-----------------------------------------------------------------
In the case, AMELIA RIOS, ROBERT GREEN, SAYRA GREEN, Plaintiffs, v.
PARTNERS IN PRIMARY CARE, P.A., SCANSTAT. L.P., D/B/A SCANSTAT
TECHNOLOGIES; NIX HOSPITALS SYSTEM, LLC, DBA NIX MEDICAL CENTER AND
DBA NIX HEALTHCARE SYSTEM, DBA NIX PHYSICIAN CARE CENTERS; NORTH
SHORE AGENCY INC., HEALTHPORT TECHNOLOGIES, LLC, DBA HEALTHPORT;
AND CIOX HEALTH, LLC, DBA HEALTHPORT AND DBA CIOX HEALTH,
Defendants, Case No. SA-18-CV-00538-FB (W.D. Tex.), Magistrate
Judge Elizabeth S. Chestney of the U.S. District Court for the
Western District of Texas, San Antonio Division, recommended that
(i) the Plaintiffs' Motion for Leave to Amend Complaint be granted;
and (ii) Defendants Nix Hospitals System, LLC and ScanSTAT, L.P.'s
Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6), Defendants
Ciox Health, LLC and Partners in Primary Care, P.A.'s Motion to
Dismiss First Amended Complaint, and Defendant North Shore Agency,
Inc.'s Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim
be denied without prejudice.
The proposed class action arises under the Texas Debt Collection
Act ("TDCA"), and the Texas Deceptive Trade Practices Act ("DTPA").
Plaintiffs Rios, Robert Green, and Sayra Green filed the action on
May 31, 2018 against two healthcare providers -- Defendants Nix
Hospitals System, LLC and Partners in Primary Care, P.A. "Partners
in Primary Care") -- and the companies responsible for their
recordkeeping, invoicing, and collection -- Defendants Healthport
Technologies, LLC, Ciox Health, LLC, ScanSTAT, L.P, and North Shore
Agency, Inc. The Plaintiffs allege that the Defendants attempted
to charge and collect an unauthorized fee for electronic copies of
their medical records in violation of the fee restrictions
contained in the Health Information Technology for Economic and
Clinical Health Act ("HITECH Act"), and that these actions by the
Defendants violate the TDCA and DTPA.
The Plaintiffs' Second Amended Complaint, the live pleading in the
case, alleges that the Plaintiffs requested electronic copies of
their medical records from Defendants Nix and Partners in Primary
Care and directed these Defendants to send their records to their
attorneys, in connection with personal-injury litigation. They
claim that Defendants ScatSTAT and Healthport/Ciox responded to the
requests on behalf of Nix and Partners in Primary Care by billing
for the requested medical records; that the amount invoiced
exceeded the charges allowed under the HITECH Act; and that the
Plaintiffs disputed the invoices on that basis. The Plaintiffs
allege that their complaints were ignored and the Defendants
continued to send them invoices for the disputed charges and/or
sent the invoices to Defendant North Shore for collection. The
Plaintiffs contend that these acts violate the TDCA and DTPA
because the Defendants attempted to collect a debt unauthorized by
the HITECH Act.
The Plaintiffs filed their lawsuit as a class action and propose a
class action of (i) all persons (ii) who requested medical records
from any Defendant and/or had their request for medical records
acted on by any Defendant (iii) and were charged or attempted to be
charged a fee for such medical records that exceeds the costs
allowed to be charged pursuant to 45 C.F.R. 164.524(c)(4).
Additionally, Plaintiff Rios brings the action on behalf of a class
consisting of (i) all persons (ii) who disputed the amounts sought
to be charged by Defendant North Shore (iv) whose complaint was not
acknowledged by such Defendant as required by Texas Finance Code
Section 392.202.
The Plaintiffs seek actual damages as calculated as the difference
between the Defendants' actual cost to provide electronic copies of
medical records in accordance with the HITECH ACT and the inflated
amounts charged by the Defendants as set forth in their pleadings,
as well as additional damages for intentional conduct and
reasonable and necessary attorneys' fees. Plaintiff Rios also
seeks statutory damages under the Texas Finance Code for Defendant
North Shore's failure to acknowledge disputes relating to the
charged amounts. Additionally or alternative to monetary damages,
the Plaintiffs seek injunctive relief. The Plaintiffs also plead
their actual damages as recoverable under the doctrine of unjust
enrichment.
Before the Court are three motions to dismiss: Defendants Nix
Hospitals System, LLC and ScanSTAT, L.P.'s Motion to Dismiss
Pursuant to Fed. R. Civ. P. 12(b)(6), Defendants Ciox Health LLC
and Partners in Primary Care, P.A.'s Motion to Dismiss First
Amended Complaint, and Defendant North Shore Agency, Inc.'s Rule
12(b)(6) Motion to Dismiss for Failure to State a Claim. The case
was referred to Magistrate Judge Chestney for all pretrial
proceedings.
Collectively, the Defendants' motions to dismiss seek dismissal of
all of the Plaintiffs' claims on the following grounds: (1) the
Plaintiffs cannot bring claims premised upon alleged violations of
the HITECH Act even through Texas consumer-protection statutes, as
no private right of action exists under the HITECH Act; (2) even if
the Plaintiffs could sue under the TDCA or the DTPA for violations
HITECH Act's fee restrictions, the Plaintiffs' claims would fail
because Defendants did not violate the HITECH Act in their handling
of their record requests; (3) the Plaintiffs lack standing to
assert their claims because they did not suffer an injury-in-fact,
as their attorneys were the ones invoiced for the electronic
records provided; (4) the Plaintiffs' TDCA and DTPA claims fail
because the debt at issue does not arise from a consumer
transaction and the Plaintiffs' attorneys are not consumers for
purposes of the TDCA or DTPA; (5) the Plaintiffs' claim for unjust
enrichment fails because there is no allegation of a benefit
conferred on the Defendants; (6) the Plaintiffs cannot satisfy the
prerequisites for class certification; and (7) Defendant Partners
in Primary Care should be dismissed because there are no
allegations that this Defendant engaged in any debt-collection
conduct.
Also before the Court is the Plaintiffs' Motion for Leave to Amend
Complaint, which was filed on Nov. 16, 2018.
Magistrate Judge Chestney explains that according to the Court's
Local Rules, the Defendants' response to the motion was due within
seven days of the motion's filing, by Nov. 23, 2018. To date, no
Defendant has filed a response to the motion. Pursuant to Local
Rule CV-7(e), if there is no response filed within the time period
prescribed by the rules, the court may grant the motion as
unopposed. The Magistrate has authority to enter an order on the
Plaintiffs' nondispositive motion pursuant to 28 U.S.C. Section
636(b)(1)(A). Accordingly, she will grant the motion to amend as
unopposed and order the Clerk to docket the Plaintiff's Second
Amended Complaint, which is attached to the Plaintiffs' motion.
Although a motion to dismiss may be rendered moot by a supplemental
or amended pleading, no party suggests that is the appropriate
course in the matter. The Plaintiffs' Second Amended Complaint
makes only minor additions to the factual allegations contained in
its First Amended Complaint and does not add any additional claims.
Moreover, the Defendants' primary argument for dismissal focuses
on alleged pleading defects related to issues of law not affected
by the Plaintiffs' amendments. Accordingly, the Magistrate
considers the arguments made in the Defendants' motion to dismiss
as they apply to the Second Amended Complaint, rather than
dismissing as moot the Defendants' motions and requiring them to
file new motions to dismiss.
Based on the current record and briefing before the Court, the
Defendants' motions to dismiss should be denied. While the
Defendants are correct that no private right of action exists under
HIPAA and the HITECH Act, the Plaintiffs have not sued under these
Acts; their case instead arises under the TDCA and DTPA. At this
stage of the litigation, the Magistrate finds that the Defendants
have not persuaded her that the Plaintiffs are precluded from
asserting claims under these Texas consumerprotection statutes
simply because their claims rely on allegations that the charges
Defendants imposed and the debts they attempted to collect were
unlawful because they violated the HITECH Act's fee restrictions.
Furthermore, the Plaintiffs have standing to assert their claims
because they allege they suffered an injury-in-fact, even if their
attorneys were the ones invoiced for the costs associated with the
copies of their medical records. And the Defendants have not
established as a matter of law at this early stage in the
litigation and on this limited evidentiary record that the HITECH
Act does not govern the Plaintiffs' claims, despite the fact that
the Plaintiffs' attorneys were the ones who initiated the requests
for electronic copies on the Plaintiffs' behalf.
The Defendants have also failed to establish as a matter of law
that the Plaintiffs cannot plausibly prove that they or their
attorneys were consumers engaged in a consumer transaction for
purposes of their TDCA and DTPA claims or that the Defendants were
unjustly enriched by overcharging for the Plaintiffs' electronic
records. Nor have the Defendants advanced any argument that merits
dismissal of the Plaintiffs' class allegations at this early stage
in the proceedings.
As to Defendant Partners in Primary Care, the Magistrate agrees
with the Defendants that the Plaintiffs' Second Amended Complaint
does not contain any allegations that Partners in Primary Care
engaged in debt-collection activities. She will recommend,
however, that if the Plaintiffs believe Partners in Primary Care
did indeed act as debt collector under governing law that the
Plaintiffs be permitted to amend their live pleading and supplement
their allegations as to this Defendant only. Alternatively, the
Plaintiffs may amend their pleading to voluntarily dismiss their
claims against Partners in Primary Care.
The Judge also rejects the Defendants' argument that the
Plaintiffs' have failed to state a claim as a matter of law under
the TDCA and DTPA. She finds that the Defendants have not
identified anything in the statutory or regulatory structure of the
HITECH Act or Texas consumer-protection law that bars the
Plaintiffs from relying on the HITECH Act as a factual predicate to
their claims under the TDCA and DTPA. The Plaintiffs have
sufficiently alleged their standing to assert their claims, and the
Defendants have not established that the Plaintiffs' allegations
fail to state a plausible claim that the Defendants' actions
violated the HITECH Act's fee restrictions.
The Defendants ask the Court to dismiss the Plaintiffs' claim of
unjust enrichment, but the Plaintiffs do not allege a cause of
action for unjust enrichment. Rather, they allege actual damages
based on the doctrine of unjust enrichment. The Magistrate finds
that tge Plaintiffs have pleaded that Defendants obtained an
undeserved benefit by billing excessive amounts for the provision
of electronic records, and that the Defendants in some
circumstances received these overpayments. Accordingly, at this
stage in the proceedings, the Plaintiffs may seek damages based on
a theory of unjust enrichment.
Next, the Magistrate finds that the Defendants are not entitled to
dismissal of the Plaintiffs' class allegations. The only asserted
basis for dismissal of the Plaintiffs' class allegations is the
Defendants' argument that the Plaintiffs' individual claims fail as
a matter of law and therefore cannot form the factual basis of a
class action. For the reasons previously stated, the Magistarte
rejects the Defendants' arguments with respect to the Plaintiffs'
individual claims under the DTPA and TDCA and by extension with
respect to their class claims. The Defendants do not challenge the
class allegations on the basis that the class is not ascertainable
or make any specific arguments with respect to the four
requirements for class certification. Nothing in this section of
the report precludes any party from asserting any argument in the
context of a motion to certify a class under Rule 23. Accordingly,
at this stage of the proceedings, she holds that the Plaintiffs'
class allegations should survive dismissal.
Finally, the Magistrate holds that the Court should permit the
Plaintiffs to supplement their allegations against Partners in
Primary Care or to voluntarily dismiss these claims. Partners in
Primary Care is, one of the medical providers that originally
received a request for electronic copies of medical records. She
agrees with the Defendants' contention that the Court should
dismiss Partners in Primary Care from the lawsuit because the
Plaintiffs do not allege any actionable debt-collection conduct by
this Defendant under the TDCA or DTPA. The entirety of the
allegations in the Plaintiffs' Second Amended Complaint against
Partners in Primary Care is that Rios requested that this provider
send electronic copies of her medical records to her attorney. The
Plaintiffs allege that all invoicing and collection activities were
performed by Healthport/Ciox and North Shore. Accordingly, without
additional allegations of debt-collection activity it appears the
Plaintiffs' claims against Partners in Primary Care should be
dismissed.
As an alternative to dismissing Partners in Primary Care from the
lawsuit, the Magistrate recommends that the Court should allow the
Plaintiffs to either supplement their allegations as to this
Defendant only or voluntarily dismiss these claims. The Plaintiffs
should also address any additional authority supporting their
position that Partners in Primary Care, based on the allegations
contained in the Plaintiffs' live pleading, is indeed a debt
collector under Texas law in any objections they file to this
report and recommendation.
For the reasons she stated, Magistrate Judge Chestney recommended
that the Plaintiffs' Motion for Leave to Amend Complaint be
granted, and directed the Clerk to docket the Plaintiffs' proposed
Second Amended Complaint.
Having considered Plaintiff's Second Complaint in light of the
arguments raised in the Defendants' motions to dismiss, the
Magistrate recommended that the Defendants' Motions to Dismiss be
denied without prejudice to raising any of the arguments asserted
in the motions to dismiss in a motion for summary judgment
supported by a complete evidentiary record prior to any ruling on
class certification. She further recommended that the District
Court permits the Plaintiffs to supplement their factual
allegations against Defendant Partners in Primary Care or
voluntarily dismiss these claims.
The United States District Clerk will serve a copy of the report
and recommendation on all parties. Written objections to the
report and recommendation must be filed within 14 days after being
served with a copy of same, unless this time period is modified by
the district court. The party will file the objections with the
clerk of the court, and serve the objections on all other parties.
A party filing objections must specifically identify those
findings, conclusions or recommendations to which objections are
being made and the basis for such objections; the district court
need not consider frivolous, conclusive or general objections. A
party's failure to file written objections to the proposed
findings, conclusions and recommendations contained in the report
will bar the party from a de novo determination by the district
court. Additionally, failure to file timely written objections to
the proposed findings, conclusions and recommendations contained in
the report and recommendation will bar the aggrieved party, except
upon grounds of plain error, from attacking on appeal the
unobjected-to proposed factual findings and legal conclusions
accepted by the district court.
A full-text copy of the Court's Feb. 15, 2019 Report &
Recommendation is available at https://bit.ly/2NRbZ1z from
Leagle.com.
Amelia Rios, Robert Green & Sayra Green, Plaintiffs, represented by
Charles Anthony Riley -- info@rileylawfirm.com -- Riley & Riley,
Attorneys at Law & Charles Darby Riley, Attorney at Law.
Partners in Primary Care, P.A., Defendant, represented by Rajinder
Singh Aujla, Porter, Rogers, Dahlman & Gordon, P.C. & Richard Glenn
Foster, Porter, Rogers, Dahlman & Gordon, P.C.
ScanStat. L.P., d/b/a ScanSTAT Technologies & Nix Hospitals System,
LLC, dba Nix Medical Center and dba Nix Healthcare System, dba Nix
Physician Care Centers, Defendants, represented by Alicia Monica
Grant -- alicia.grant@nortonrosefulbright.com -- Norton Rose
Fulbright & Charles A. Deacon --
charlie.deacon@nortonrosefulbright.com -- Norton Rose Fulbright US
LLP.
North Shore Agency Inc., Defendant, represented by Jason R. Jobe --
jjobe@thompsoncoe.com -- Thompson, Coe, Cousins & Irons, LLP &
Leticia P. Aguilar -- laguilar@thompsoncoe.com -- Thompson Coe
Cousins & Irons, LLP.
Healthport Technologies, LLC, dba Healthport & Ciox Health, LLC,
dba Healthport and dba Ciox Health, Defendants, represented by
Ashley Cummings -- acummings@HuntonAK.com -- Hunton Andrews Kurth
LLP, pro hac vice, Edward F. Fernandes -- efernandes@HuntonAK.com
-- Hunton Andrews Kurth LLP & Laura T. Wagner --
lwagner@HuntonAK.com -- Hunton Andrews Kurth, LLP.
PDC ENERGY: Colorado Court Narrows Claims in Dufresne Suit
----------------------------------------------------------
In the case, ROBERT R. DUFRESNE, a Trustee of the Dufresne Family
Trust; MICHAEL A. GAFFEY, as Trustee of the Michael A. Gaffey and
JoAnne M. Gaffey Living Trust dated March 2000; RONALD GLICKMAN, a
Trustee of the Glickman Family Trust est. August 29, 1994; JEFFREY
SCHULEIN, a Trustee of the Schulein Family Trust est. March 29,
1989; and WILLIAM McDONALD, as Trustee of the William J. and Judith
A. McDonald Living Trust est. April 16, 1991, Plaintiffs, v. PDC
ENERGY, INC., a Delaware corporation, in its capacity as the
General Partner of the Rockies Region 2006 Limited Partnership and
the Rockies Region 2007 Limited Partnership; BART R. BROOKMAN, JR.,
an individual as the Chief Executive Officer of the defendant PDC
Energy, Inc.; LANCE A. LAUCK, an individual as the Executive Vice
President of defendant PDC Energy, Inc.; JEFFREY C. SWOVELAND, an
Individual; ANTHONY J. CRISAFIO, an Individual; and DAVID C. PARKE,
an Individual, Defendants, and ROCKIES REGION 2006 LP, a West
Virginia limited partnership; and ROCKIES REGION 2007 LP, a West
Virginia limited partnership, Nominal Defendants, Civil Action No.
17-cv-03079-RBJ (D. Colo.), Judge R. Brooke Jackson of the U.S.
District Court for the District of Colorado granted in part and
denied in part the Defendants' motion to dismiss the Plaintiffs'
second amended complaint.
PDC is a publicly traded oil and gas company headquartered in
Denver, Colorado. It owns, operates, and manages oil and gas
properties primarily in Colorado, Texas, and West Virginia. In the
mid-1980s until 2007, PDC formed dozens of limited partnerships to
raise capital to finance the acquisition and development of
additional oil and gas properties. It served as the managing
general partner for the limited partnerships, and it used the
millions invested to drill new wells.
Of the 76 limited partnerships that PDC formed, there are just two
at issue in the case: the Rockies Region 2006 Limited Partnership
and Rockies Region 2007 Limited Partnership. The Partnerships
owned the rights to multiple oil and gas properties, including
rights in the Wattenberg Field in Colorado. According to the
Plaintiffs, the Wattenberg Field is one of PDC's most profitable
properties. As such, this field became a central figure in the
alleged wrongful scheme to deprive the Partnerships of their
interests.
The alleged scheme began at some point prior to 2010. The
Plaintiffs allege that PDC decided to divest itself of its
obligations to the numerous partnerships, including the
Partnerships involved in the case, because PDC wanted to solely
benefit from the production of oil and gas that the Wattenberg
Field produced. So, PDC devised a scheme to purchase the
Partnerships and their associated assets below market value. Mr.
Lauck was the supposed "mastermind" of the plan. The Plaintiffs
believe that PDC concealed the wrongful scheme under the guise of a
"shift in corporate strategy" away from the partnership model to a
more traditional oil and gas model.
According to the SAC, PDC's alleged scheme went into action when it
started merging earlier partnerships formed between 2002 and 2005.
This sparked a separate class action lawsuit against PDC in the
Central District of California, where Plaintiff Schulein served as
the lead plaintiff. In that case, the district court ultimately
approved a $37 million settlement. As a result, the Plaintiffs
assert that PDC halted the alleged scheme to purchase the 2006 and
2007 Partnerships.
Nonetheless, the Plaintiffs allege at least four specific wrongful
acts committed by PDC as part of the broader scheme. First, they
allege that the Defendants failed to assign the Partnerships
32-acre spacing units as required by the agreement. Second, they
allege that the Defendants failed to take proper steps to maximize
the profits of the Partnerships' property. Third, the Plaintiffs
allege PDC breached its fiduciary duties when it profited from the
drilling of horizontal wells that passed through the Partnerships'
spacing units in the Wattenberg Field without compensating the
Partnerships. And lastly, the Plaintiffs allege yet another
breach of fiduciary duty by PDC when it entered into an agreement
with Noble Energy, Inc. by which it traded to Noble a portion of
the Partnerships' spacing acreage for other acreage in the
Wattenberg Field that is adjoining PDC's own acreage. This allowed
PDC to drill longer and more profitable horizontal wells for its
own benefit and at the expense of the Partnerships' interest.
The Defendants tell a different story. They contend that after
paying significant distributions to the Plaintiffs for many years,
the productivity of the Partnerships' wells naturally declined with
age. In fact, they allege that the costs to maintain the
Plaintiffs' wells started to exceed revenues by hundreds of
thousands of dollars per year. This loss required PDC to plug or
abandon the Partnerships' wells beginning in October 2017.
Further, the Defendants allege that the Plaintiffs' only beef with
them is that they want a share of the profits PDC has earned from
the horizontal wells that it operated in the same area as the
Partnerships' wells. However, they refuse to share in their
profits from the horizontal wells because the original investment
offerings concerned only the original wells; any additional wells
that PDC drilled were explicitly not part of the agreement. Thus,
the Defendants believe that the Partnerships have no rights to any
subsequently drilled wells.
Derivative Plaintiffs Dufresne, Gaffey, and Schulein, on behalf of
the Partnerships, brought their initial complaint on Dec. 20, 2017.
The Derivative Plaintiffs amended their complaint on April 26,
2018 to add class claims. Plaintiffs Glickman and McDonald are the
"class Plaintiffs." The Plaintiffs subsequently filed a second
amended complaint on July 10, 2018.
The Defendants filed their motion to dismiss on July 31, 2018.
Their motion to dismiss rests on three primary arguments. First,
they assert that the Plaintiffs' SAC does not contain sufficient
facts to support their claim that the individual Defendants aided
and abetted PDC's breach of fiduciary duty. Next, the Defendants
contend that the Plaintiffs' claims based on PDC's alleged failure
to assign the Partnerships 32-acre spacing units are time-barred.
Lastly, the Defendants assert that the class claims relating to the
2006 Partnership wellbore assignments are time-barred.
Judge Jackson finds that the Plaintiffs have failed to sufficiently
allege aiding and abetting by the individual Defendants in claims
two (brought by the Derivative Plaintiffs) and six (brought by the
class Plaintiffs). Because the Plaintiffs have already submitted
two amended complaints, these claims are dismissed with prejudice.
Next, the Judge holds that the Plaintiffs cannot use the alleged
improper wellbore assignments to support their breach of fiduciary
duty claims. Accordingly, the Defendants' motion to dismiss the
Plaintiffs' claims concerning the alleged improper wellbore
assignments is denied as to the Plaintiffs' breach of contract
claims. But the Plaintiffs are time-barred from using the wellbore
assignments to support their breach of fiduciary duty claims.
Finally, the Judge denied the Defendants' motion to dismiss the
Plaintiffs' class claims concerning the alleged improper wellbore
assignments as to the class Plaintiffs' breach of contract claims.
But the class Plaintiffs are time-barred from using the wellbore
assignments to support their breach of fiduciary duty claims. He
finds that he has already ruled that the Plaintiffs have adequately
pled a factual dispute concerning the issue of constructive
notice.
For the reasons he stated, Judge Jackson granted in part and denied
in part the Defendants' motion to dismiss.
A full-text copy of the Court's Feb 19, 2019 Order is available at
https://is.gd/UsDFJJ from Leagle.com.
Robert R. Dufresne, trustee the Dufresne Family Trust, Michael A.
Gaffey, trustee Michael A. Gaffey and JoAnne M. Gaffey Living Trust
dated March 2000, Ronald Glickman, trustee Glickman Family Trust
est. August 29, 1994, Jeffrey Schulein, trustee Schulein Family
Trust est. March 29, 1989 & William McDonald, trustee William J.
and Judith A. McDonald Living Trust dated April 16, 1991,
Plaintiffs, represented by Thomas G. Foley, Jr., Foley Bezek Behle
& Curtis, LLP.
PDC Energy, Inc., a Delaware corporation, in its capacity as the
General Partner of the, Bart R. Brookman, Jr., an Individual other
PDC Energy, Inc., Lance A. Lauck, an Individual other PDC Energy,
Inc., Jeffrey C. Swoveland, an Individual, Anthony J. Crisafio, an
Individual & David C. Parke, an Individual, Defendants, represented
by Charles Edward Elder -- celder@irell.com -- Irell & Manella, LLP
& Michael David Harbour -- mharbour@irell.com -- Irell & Manella,
LLP.
Rockies Region 2006 LP, a West Virginia limited partnership,
actually named as Nominal Defendant & Rockies Region 2007 LP, a
West Virginia limited partnership, actually named as Nominal
Defendant, Defendants, represented by Charles Edward Elder, Irell &
Manella, LLP & Jason Scott Brookner, Gray Reed & McGraw LLP.
PEI WEI ASIAN: $600K Hernandez Suit Settlement Has Final Approval
-----------------------------------------------------------------
In the case, DOUGLAS HERNANDEZ, as an individual and on behalf of
all others similarly situated, Plaintiff, v. PEI WEI ASIAN DINER,
LLC., a Limited Liability Company; and DOES 1 through 100,
inclusive, Defendants, Case No. 8:17-cv-00679 JLS (JCGx) (C.D.
Cal.), Judge Josephine L. Staton of the U.S. District Court for the
Central District of California, Southern Division, granted the
Plaintiff's Motion for Final Approval of Class Action Settlement,
and the Plaintiff's Motion for Approval of Attorneys' Fees and
Costs and Representative Enhancement.
On Jan. 11, 2019, a final fairness hearing was held on the motion
of the Plaintiff, on behalf of himself and the Class Members, for
approval of the Joint Stipulation of Class Action Settlement, dated
June 8, 2018, entered into between the Parties. Due and adequate
notice has been given to the Class Members as required by the
Court's Order Granting Plaintiff's Unopposed Motion for Preliminary
Approval of Class Action Settlement dated Aug. 22, 2018.
Judge Staton has reviewed the Settlement, and the record and
proceedings, and has determined that the Settlement is fair,
adequate, and reasonable, and the Court has entered its Order
Granting Plaintiff's Motion for Final Approval of Class Action
Settlement and the Plaintiff's Motion for Approval of Attorneys'
Fees and Costs and Representative Enhancement.
Consistent with the Court's Final Approval Order, Judge Staton
granted the Plaintiff's Motion for Final Approval of Class Action
Settlement and the Plaintiff's Motion for Approval of Attorneys'
Fees and Costs and Representative Enhancement.
She certified the Class during the Settlement Class Period of April
14, 2013 to Aug. 22, 2018, as set forth in the Settlement
Agreement, for purposes of the Settlement only.
The Judge confirmed as the Class Counsel, Larry W. Lee of Diversity
Law Group, P.C. and Edward W. Choi of Law Office of Choi &
Associates, P.C. She finds the monetary settlement of $600,000,
provided for in the Settlement Agreement to be fair, reasonable,
and adequate.
She ordered Phoenix Settlement Administrators to distribute the
Gross Settlement Amount including Individual Settlement Payments to
the Settlement Class in accordance with the terms of the Settlement
Agreement.
The Judge further approves the payment of $18,500 to Phoenix for
the claims administration costs. The payment authorized will be
made in accordance with the terms of the Settlement Agreement.
Under the terms of the Settlement and the authorities, evidence,
and argument set forth in the Class Counsel's application, an award
of attorneys' fees in the amount of $180,000 (equal to 30% of the
Gross Settlement Amount), and for costs and expenses in the amount
of $10,701.25 as final payment for and complete satisfaction of any
and all attorneys' fees and costs incurred by and/or owed to Class
Counsel is granted.
The Judge approved the settlement of claims under the PAGA and the
payment of $11,250 to the California Labor & Workforce Development
Agency ("LWDA") as the LWDA's share of the Settlement attributable
to civil penalties under PAGA. The payment to the LWDA will be
made in accordance with the terms of the Settlement.
She confirmed the Plaintiff as the class representative and orders
payment of $5,000 to the Plaintiff for his service as the
representative and for his release of claims contained in the
Settlement. The payments of the Representative Service Payment
will be made in accordance with the terms of the Settlement.
A full-text copy of the Court's Feb 19, 2019 Amended Final Order is
available at https://is.gd/aYIHKN from Leagle.com.
Douglas Hernandez, as an individual and on behalf of all others
similarly situated, Plaintiff, represented by Larry W. Lee --
lwlee@diversitylaw.com -- Diversity Law Group PC & Edward W. Choi
-- edward.choi@choiandassociates.com -- Law Offices of Choi and
Associates.
Pei Wei Asian Diner LLC, a Delaware limited liability company,
Defendant, represented by Evan R. Moses -- evan.moses@ogletree.com
-- Ogletree Deakins Nash Smoak and Stewart PC & Ted A. Gehring --
tgehring@ebglaw.com -- Epstein Becker & Green, P.C..
PORTFOLIO RECOVERY: Gomes' Bid to Certify Two Classes Denied
------------------------------------------------------------
The Hon. Cecilia M. Altonaga denied the Plaintiff's Motion for
Class Certification and Appointment of Class Representative and
Class Counsel in the lawsuit entitled LEONARDO GOMES v. PORTFOLIO
RECOVERY ASSOCIATES, LLC, Case No. 1:18-cv-21872-CMA (S.D. Fla.).
The Plaintiff sought certification of these classes pursuant to the
Fair Debt Collection Practices Act and the Florida Consumer
Collections Protection Act:
* FDCPA class:
All persons located in the State of Florida to whom
Defendant, within one year before the filing of the original
complaint in this action through the date of class
certification, sent a letter based on the Template regarding
a Capital One credit card debt where the charge off date
preceded the date of the letter by more than five years; and
* FCCPA class:
All persons located in the State of Florida to whom
Defendant, within two years before the filing of the
original complaint in this action through the date of class
certification, sent a letter based on the Template regarding
a Capital One credit card debt where the charge off date
preceded the date of the letter by more than five years.
Based upon the class definition the Plaintiff proposed in his
Motion, the Court finds Rule 23(b)(3)'s predominance requirement is
not satisfied, Judge Altonaga opined. The remedies the Plaintiff
suggests for addressing the many individualized causation and
damages questions weighing down the actual damages class members'
claims were dismissively brushed away in the Motion by the casual
invitation the Court "may amend the certification order to exclude
such individuals from the class"; and are improperly, albeit more
concretely, presented in a reply memorandum for the first time,
Judge Altonaga added.[CC]
POWERCOR: Bushfire Victims Won't Bear Legal Costs of Failed Case
----------------------------------------------------------------
Rachael Houlihan, writing for The Standard, reports that the
south-west legal firm behind the St Patrick's Day bushfire class
actions has declared that legal costs from the failed Gazette case
will not be paid by blaze victims.
It comes as Maddens Lawyers revealed a second of the four class
actions -- this one related to the Camperdown/Gnotuk blaze -- had
been dropped with "unanimous support" from the victims of the
fire.
Maddens Lawyers principal Brendan Pendergast said the other two
class actions relating to the Terang and Garvoc fires are
progressing to mediation and a potential trial.
Mr Pendergast also revealed that Powercor has requested the Supreme
Court allow it to add its line inspection contractor, Electrix, as
a second defendant to the Garvoc class action. Electrix were
engaged by Powercor to undertake inspections of the pole in the
years prior to its failure.
Maddens Lawyers class action principal Brendan Pendergast said if
Garvoc fire victims did not sign up to that class action before
March 22 they would not receive compensation.
He said loss assessors engaged by Maddens had made significant
progress in assessing group members' loss and damage and an
independent rural loss assessor would visit each property to review
and value the damage caused by the fire.
Mr Pendergast said the assessor will then prepare a valuation
report for each group member, which will be used in support of
their claim for compensation.
The trial has been set down to be heard in Warrnambool during the
Supreme Court circuit on October 21.
The Gazette fire class action was dismissed earlier in February and
orders have been made that Powercor is entitled to recover its
costs of the proceeding.
However, Mr Pendergast said the effect of the order was that the
lead plaintiffs and Powercor now had an opportunity to reach an
agreement as to costs. In the event that no agreement is reached,
the costs will be set by the court.
He that no costs amount had been sought by Powercor from the lead
plaintiffs at this stage and declared at no point would group
members be liable for any legal costs.
"The effect of his Honour's decision to dismiss the Gazette fire
class action is that the plaintiffs and affected property owners
are prevented from having their claims against Powercor ventilated
at trial," he said.
"This is obviously a disappointing development and the plaintiffs
are currently taking advice as to whether to appeal his Honour's
decision. That step will be considered by our legal team and
clients in the forthcoming fortnight."
The Terang fire class action involves about 180 fire victims and is
advancing towards a court-ordered mediation. A date has not yet
been fixed for the mediation.
Mr Pendergast said an in-principle agreement to discontinue the
proceeding for the Camperdown/Gnotuk fire class action had been
reached, with the unanimous support of the property owners
impacted.
Mr Pendergast said Maddens remained committed to investigating and
pursuing bushfire class action recoveries on behalf of the
community.
"Maddens Lawyers is focused on ensuring that fire victims and
impacted property owners' entitlements to compensation are
pursued," he said.
"There were four serious fires in the south-west on St Patrick's
Day. It is not disputed that each of those fires were started by
electrical assets. We make no apology for advocating on behalf of
fire-affected community members and will not shy away from the
difficult cases."
The Standard has contacted Powercor for comment. [GN]
POWERCOR: Maddens Lawyers May Bear Legal Costs Bushfire Case
------------------------------------------------------------
Andrew Thomson, writing for The Standard, reports that Warrnambool
lawyers who launched a bushfire class action described by a Supreme
Court judge as "fanciful" may have to pay legal costs for Powercor,
expected to be as much as $250,000.
Maddens Lawyers launched four class actions after the St Patrick's
Day bushfires devastated parts of south-west Victoria in March last
year.
But Justice John Dixon dismissed the Gazette fire class action in
the Supreme Court earlier in February, describing it as "fanciful"
and ordering that Powercor could recover its legal costs of
defending the action.
The class action lead plaintiffs, Nick and Georgina Block, of
Minhamite, are legally required to pay these costs.
But The Standard reported on Feb. 19 that Maddens Lawyers principal
Brendan Pendergast said no costs amount had been sought by Powercor
from the lead plaintiffs at this stage and "at no point will group
members be liable for any legal costs".
Asked whether Powercor would request Maddens pay the cost, a
spokeswoman for Powercor said in a statement: "We acknowledge the
court's decision to dismiss the Gazette class action, and
Powercor's lawyers are in contact with Maddens regarding associated
costs."
However, legal and industry sources say as a result of an
unsuccessful class action, the promoter of a class action - in this
case Maddens Lawyers - will often indemnify or compensate the lead
plaintiffs for those costs, particularly if a class action has been
launched, which had little or no chance of success, such as the
Gazette fire.
Industry sources say that in some class actions, the promoter of a
class action such as Maddens may be required to pay millions of
dollars up-front in security for costs, or prove they have the
capital to absorb adverse costs orders.
It is understood that Powercor's position in relation to the
Gazette action is that Maddens should pay.
Powercor was forced to legally defend the "fanciful" class action
and is likely to want the cost of mounting its expensive legal
defence paid, particularly given the Supreme Court order on costs
recovery from earlier in February.
Industry sources say those costs are expected to be about $250,000
but the lead plaintiff and Powercor now have an opportunity to
reach an agreement as to costs. In the event that no agreement is
reached, the costs will be set by the Supreme Court.
Mr Block told The Standard on Feb. 19 he couldn't comment on being
legally responsible for the class action costs.
"I'm not a lawyer," he said.
"There's a bit of mucking around with it all. I've not been told a
hell of a lot.
"There's a bit of cat and mouse going on. I'm really not in a
position to comment. I'm pretty much over it all."
The Standard has contacted Mr Pendergast for comment about whether
Maddens will indemnify the Blocks' costs but had received no
response last night.
A second St Patrick's Day fire class action has also been settled,
the Gnotuk/Camperdown action.
The Supreme Court was told the confidential in-principle agreement
to discontinue the proceeding had been reached with the unanimous
support of the small group of property owners following a meeting
in Camperdown recently.
It is understood that participants have received little or no
financial benefit from that class action, but no costs have been
ordered.
The Terang Fire class action, involving about 180 fire victims is
proceeding towards a court-ordered mediation. The action has been
fixed for a trial to be heard in the Supreme Court sitting in
Warrnambool in October.
The trial for the Garvoc fire class action, which involves about 40
victims, is set to be heard in Warrnambool during the Supreme Court
circuit beginning October, 21.
Powercor has also requested that its line inspection contractor,
Electrix, be added as a second defendant to the class action.
Electrix was engaged by Powercor to undertake inspections of the
pole in the years prior to its failure. [GN]
PRO CUSTOM SOLAR: Niemczyk Sues Over Unsolicited Telemarketing
--------------------------------------------------------------
Thomas Niemczyk, individually, and on behalf of a class of
similarly situated individuals, Plaintiff, v. Pro Custom Solar LLC
d/b/a Momentum Solar, Defendant, Case No. 2:19-cv-07846 (D. N.J.,
March 5, 2019) is an action against Defendant for violations of the
Telephone Consumer Protection Act ("TCPA") for unsolicited
telemarketing calls made by or on behalf of Defendant.
The Defendant and/or its agents regularly makes autodialed
telephone calls both with and without a pre-recorded message to
consumers in order to market its services. Plaintiff has never
authorized Momentum to make autodialed marketing calls on his
cellular telephone.
Plaintiff does not have any relationship with Momentum and never
solicited the Defendant's business directly or indirectly, says the
complaint.
Plaintiff Thomas Niemczyk is a natural person and was a resident of
Melville, New York.
Momentum is in the business of selling and installing solar panels,
and engages in telemarketing to generate sales leads.[BN]
The Plaintiff is represented by:
Matthew Mendelsohn, Esq.
MAZIE SLATER KATZ & FREEMAN, LLC
103 Eisenhower Parkway
Roseland, NJ 07068
Phone: (973) 228-9898
Facsimile: (973) 228-0303
Email: mmendelsohn@mskf.net
PROCTER & GAMBLE: Faces Class Action Over Oral B Mouthwash
----------------------------------------------------------
Louise Prance-Miles, writing for Global Cosmetic News, reports that
Procter & Gamble is facing a class-action lawsuit in Israel
regarding the labelling of its Oral B and Pro Expert mouthwashes,
with the filing seeking the equivalent to $8.3 million, according
to hamodia.com.
According to the lawsuit, represented by Israeli Yossi Beitner, the
mouthwash labelling encourages consumers to use more mouthwash than
required, therefore prompting higher repeat purchase.
The lawsuit was approved for class-action status by the Tel Aviv
District Court, with the lawsuit claiming that the Hebrew-language
instructions state the Oral B product should be used twice a day
with gargling for 30 seconds a time, differing to the original
English-language instructions that state the product should be used
once a day with gargling for 60 seconds.
P&G Israel representatives have responded stating that according to
studies the mouthwashes are more effective when used according to
the Hebrew-language instructions. However, this was dismissed by
the court as insufficient, as it failed to inform consumers of both
options.
The case was approved for adjudication as well as class-action
status due to the amount of consumers it may have affected.
P&G is said to be following 'proper legal procedure' prior to
presenting its case in court. [GN]
PROSHARES TRUST II: Faces Ford Class Action Suit in New York
------------------------------------------------------------
ProShares Trust II said in its Form 8-K filing with the U.S.
Securities and Exchange Commission filed on February 8, 2019, that
the company has been named as defendant in a purported class action
suit entitled, Ford v. ProShares Trust II et al.
On January 29, 2019, ProShare Capital Management LLC (the
"Sponsor") and ProShares Trust II (the "Trust") were named as
defendants in a purported class action lawsuit filed in the United
States District Court for the Southern District of New York, styled
Ford v. ProShares Trust II et al.
Generally, the complaint alleges that the defendants violated
Sections 11 and 15 of the Securities Act of 1933 and Sections 10(b)
and 20(a) of and Rule 10b-5 under the Securities Exchange Act of
1934 by issuing untrue statements of material fact and omitting
material facts in the prospectus for ProShares Short VIX Short-Term
Futures ETF ("SVXY"), allegedly failing to state other facts
necessary to make the statements made not misleading.
Certain Principals of the Sponsor and Officers of the Trust were
also named as defendants in this action, along with a number of
others. Counsel for the Trust believes the complaint is without
merit and that the lawsuit will not adversely impact the operation
of the Trust, SVXY, or any of its other series.
ProShares said, "The Trust and the Sponsor intend to vigorously
defend against this lawsuit."
ProShares Trust II is an exchange traded fund launched and managed
by ProShare Capital Management LLC. The fund invests in the
currency markets.
PUMA BIOTECHNOLOGY: Norfolk Pension Fund Wins Securities Case
-------------------------------------------------------------
Institutional Asset Manager reports that the Norfolk Pension Fund,
represented by Robbins Geller Rudman & Dowd, a class action
securities fraud law firm representing institutional investors in
public markets, has won a major victory with a rare jury verdict,
finding a company listed on the NASDAQ together with the company's
CEO and Board Chairman liable for securities fraud.
A jury in the United States District Court for the Central District
of California, in Santa Ana, California has found that defendants,
Puma Biotechnology (Puma) and its CEO and Chairman, Alan H
Auerbach, committed securities fraud and are liable to compensate a
class of investors who purchased Puma shares between 22 July 2014
and 13 May 2015 at prices inflated by the defendants' misconduct.
The jury's verdict was the culmination of almost four years of
litigation and a three-week trial throughout which Norfolk Pension
Fund served as the Lead Plaintiff on behalf of all defrauded
investors.
In what was only the fifteenth securities fraud class action to be
tried to a verdict since passage of the Private Securities
Litigation Reform Act in 1995, the jury found that Puma and
Auerbach knowingly misled investors about the effectiveness of a
breast-cancer drug called neratinib, sold commercially under the
name Nerlynx.
The jury determined that the fraud inflated Puma's share price by
USD4.50, which is over 15 per cent of the price at which Puma's
shares currently trade and which may cost defendants, when all
claims are counted, up to USD100 million.
The case against Puma and Auerbach featured forensic evidence
showing that Auerbach had created counterfeit official meeting
minutes of the US Food and Drug Administration (FDA) to advance the
defendants' fraudulent scheme. Auerbach sent these forged minutes
to underwriters of a USD218 million public stock offering in 2015.
When pressed to explain, Auerbach repeatedly changed his testimony.
The US Securities and Exchange Commission routinely bans
individuals from any continued role as a corporate officer or
director if and when such individuals are found to have committed
fraud.
Judy Oliver, Chairman of the Norfolk Pension Fund, says: "We are
pleased with the jury's findings in favour of investors, that a
financial recovery in which Norfolk Pension Fund will participate
has been won, and that this verdict may bring significant
improvement to Puma's management. It is important that asset
owners hold companies and executives to account when securities
fraud is discovered. "
"All affected investors can benefit when one of their number is
willing to speak for all, and we believe it is appropriate for the
fund to participate by taking its turn to lead such cases. This
forms part of our commitment to being a good steward of our
members' pension assets, our recognition of our wider
responsibilities as an institutional investor, and importantly
recognises the fiduciary obligations we owe towards our fund
members and beneficiaries to get the best possible return on
investments for them."
Mark Solomon -- marks@rgrdlaw.com -- a partner at Robbins Geller
Rudman & Dowd LLP who has represented Norfolk since the inception
of the case in 2015, added: "We were assiduous in prosecuting this
case to recoup losses suffered by investors at the hands of Puma
Biotechnology and Alan Auerbach. The jury verdict underscores that
cheating executives can be held to account for their actions. The
fight to improve governance and integrity within boardrooms
globally will be advanced significantly if more fraud cases are
vigorously prosecuted by investors such as Norfolk." [GN]
QUALITY HUTS: Sagendorf Seeks Okay of Notice to Delivery Drivers
----------------------------------------------------------------
JOSEPH SAGENDORF, individually and on behalf of similarly situated
persons, the Plaintiffs, v. QUALITY HUTS, LLC, QUALITY HUTS EAST,
LLC, QUALITY HUTS INDIANAPOLIS, LLC, QUALITY HUTS MID ATLANTIC,
LLC, QUALITY HUTS MIDWEST, LLC, the Defendants, Case no.
3:18-cv-00623-PPS-MGG (N.D. Ind.) the Plaintiff seeks an order:
1. requiring Defendant to disclose the names, last known
addresses, email addresses, and telephone numbers of
potential Plaintiffs;
2. granting a 90-day opt-in period measured from the date
notice is mailed;
3. allowing proposed Notice and Consent Forms to be sent to
the class members by physical mailing and electronic means;
4. directing Defendant to post respective Notice and Consent
forms at Defendant's facilities in an area readily and
routinely available for review by potential Class Members;
and
5. granting motion and authorize notice to delivery drivers
who worked at Defendants' various locations in the last
three years.
The Plaintiffs allege that they and other similarly situated
current and former delivery drivers were illegally denied lawful
minimum wage rates because they were not properly reimbursed for
all required expenditures.[CC]
Attorneys for the Plaintiffs:
Matthew Haynie, Esq.
Jay Forester, Esq.
FORESTER HAYNIE PLLC
1701 N. Market Street, Suite 210
Dallas, TX 75202
Telephone: (214) 210-2100
Facsimile: (214) 346-5909
www.foresterhaynie.com
RAYMOND JAMES: Bid to Stay Trial in Wistar Suit Pending
-------------------------------------------------------
Raymond James Financial, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on February 8, 2019,
for the quarterly period ended December 31, 2018, that the motion
to stay trial filed in the case, Caleb Wistar and Ernest Mayeaux v.
Raymond James Financial Services, Inc. and Raymond James Financial
Services Advisors, Inc., remains pending.
On February 11, 2016, Caleb Wistar ("Wistar") and Ernest Mayeaux
("Mayeaux") filed a putative class action complaint in the District
Court under the caption Caleb Wistar and Ernest Mayeaux v. Raymond
James Financial Services, Inc. and Raymond James Financial Services
Advisors, Inc. (as subsequently amended, the "Wistar Complaint").
Similar to the Brink Complaint, the Wistar Complaint alleges that
Wistar and Mayeaux, former customers of RJFS and Raymond James
Financial Services Advisors, Inc. ("RJFSA"), were charged a fee in
RJFS and RJFSA's Passport Investment Account and that the fee
included an unauthorized and undisclosed profit to RJFS and RJFSA
in violation of its customer agreement and applicable industry
standards. The Wistar Complaint seeks, among other relief, damages
in the amount of the difference between the actual cost of
processing a trade, as alleged by Wistar and Mayeaux, and the fee
charge by RJFS and RJFSA.
On September 6, 2018, RJFS and RJFSA filed a motion to dismiss the
Wistar Complaint. On January 2, 2019, the District Court denied the
motion to dismiss. The matter is currently scheduled for trial
commencing September 16, 2019. On January 25, 2019, RJFS and RJFSA
filed a motion to stay trial, calendar call and all remaining
pretrial deadlines in light of the Appellate Court's order in Brink
suit granting permission to RJ&A to appeal the class certification
order, which motion is pending.
RJFS and RJFSA believe the claims in the Wistar Complaint are
without merit and are vigorously defending the action.
Raymond James Financial, Inc., through its subsidiaries, engages in
the underwriting, distribution, trading, and brokerage of equity
and debt securities, and the sale of mutual funds and other
investment products in the United States, Canada, Europe, and
internationally. It operates in five segments: Private Client Group
(PCG), Capital Markets, Asset Management, RJ Bank, and Other. The
company was founded in 1962 and is headquartered in St. Petersburg,
Florida.
RENT-A-CENTER INC: Seeks 9th Cir. Review of Ruling in Blair Suit
----------------------------------------------------------------
Defendants Rent-A-Center, Inc., and Rent-A-Center West, Inc., filed
an appeal from a Court ruling in the lawsuit entitled Paula Blair,
et al. v. Rent-A-Center, Inc., et al., Case No. 3:17-cv-02335-WHA,
in the U.S. District Court for the Northern District of California,
San Francisco.
As previously reported in the Class Action Reporter, the Hon.
William Alsup granted in part and denied in part the Plaintiffs'
motion for class certification.
The certified class is defined as:
"All individuals who, on or after March 13, 2013, entered
into a rent-to-own transaction with RAC in California."
The appellate case is captioned as Paula Blair, et al. v.
Rent-A-Center, Inc., et al., Case No. 19-80024, in the United
States Court of Appeals for the Ninth Circuit.[BN]
Plaintiffs-Respondents PAULA L. BLAIR, ANDREA ROBINSON and HARRIS
A. FALECHIA, individually and on behalf of all others similarly
situated, are represented by:
Eric P. Brown, Esq.
Michael Rubin, Esq.
ALTSHULER BERZON LLP
177 Post Street
San Francisco, CA 94108
Telephone: (415) 421-7151
E-mail: ebrown@altshulerberzon.com
mrubin@altshulerberzon.com
- and -
Zachariah P. Dostart, Esq.
James T. Hannink, Esq.
DOSTART HANNINK & COVENEY LLP
4180 La Jolla Village Drive, Suite 530
La Jolla, CA 92037
Telephone: (858) 623-4200
E-mail: zdostart@sdlaw.com
Jim.Hannink@SDLaw.com
Defendants-Petitioners RENT-A-CENTER, INC., a Delaware corporation,
and RENT-A-CENTER WEST, INC., a Delaware corporation, are
represented by:
Henry Joseph Escher, III, Esq.
Lily North, Esq.
DECHERT LLP
One Bush Street, Suite 1600
San Francisco, CA 94104
Telephone: (415) 262-4500
E-mail: h.joseph.escher@dechert.com
lily.north@dechert.com
- and -
Michael Hugh McGinley, Esq.
Christina Sarchio, Esq.
DECHERT LLP
1900 K Street, NW
Washington, DC 20005
Telephone: (202) 261-3378
E-mail: michael.mcginley@dechert.com
christina.sarchio@dechert.com
- and -
Robert Francois Friedman, I, Esq.
LITTLER MENDELSON, P.C.
2001 Ross Avenue
Dallas, TX 75201
Telephone: (214) 880-8100
E-mail: rfriedman@littler.com
- and -
Gregory G. Iskander, Esq.
LITTLER MENDELSON, P.C.
1255 Treat Boulevard
Walnut Creek, CA 94597
Telephone: (925) 932-2468
E-mail: giskander@littler.com
REVOLUTION LIGHTING: Glavan Hits Drop in Stock Price
----------------------------------------------------
James Glavan, individually and on behalf of all others similarly
situated, Plaintiff, v. Revolution Lighting Technologies, Inc.,
Robert V. Lapenta, Charles J. Schafer and James A. Depalma,
Defendants, Case No. 19-cv-00980, (S.D. N.Y., January 31, 2019),
seeks to pursue remedies under the Securities Exchange Act of
1934.
Revolution Lighting designs and manufactures light-emitting diode
lighting solutions for industrial, commercial and government
markets. Revolution failed to disclose that it improperly
recognizing revenue for certain transactions, that it lacked
adequate internal controls over financial reporting and made it
subject to regulatory scrutiny, according to the lawsuit. On this
news, Revolution's stock price fell $0.55 per share, or nearly 40%,
to close at $0.85 per share on November 15, 2018, on unusually
heavy trading volume.
Glavan purchased Revolution securities and lost during corrective
disclosures. [BN]
The Plaintiff is represented by:
Lesley F. Portnoy, Esq.
GLANCY PRONGAY & MURRAY LLP
230 Park Ave., Suite 530
New York, NY 10169
Telephone: (212) 682-5340
Facsimile: (212) 884-0988
- and -
Lionel Z. Glancy, Esq.
Robert V. Prongay, Esq.
Charles H. Linehan, Esq.
Pavithra Rajesh, Esq.
GLANCY PRONGAY & MURRAY LLP
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Telephone: (310) 201-9150
Facsimile: (310) 201-9160
Email: info@glancylaw.com
- and -
Howard G. Smith, Esq.
LAW OFFICES OF HOWARD G. SMITH
3070 Bristol Pike, Suite 112
Bensalem, PA 19020
Telephone: (215) 638-4847
Facsimile: (215) 638-4867
REWALK ROBOTICS: Class Action in Massachusetts Still Ongoing
------------------------------------------------------------
ReWalk Robotics Ltd. said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on February 8, 2019, for
the fiscal year ended December 31, 2018, that the company continues
to defend itself in the class actions filed in U.S. District Court
for the District of Massachusetts.
Between September 2016 and January 2017, eight putative class
actions on behalf of alleged shareholders that purchased or
acquired the company's ordinary shares pursuant and/or traceable to
its registration statement on Form F-1 (File No. 333-197344) used
in connection with its initial public offering, or its IPO, were
commenced in the following courts: (i) the Superior Court of the
State of California, County of San Mateo; (ii) the Superior Court
of the Commonwealth of Massachusetts, Suffolk County; (iii) the
United States District Court for the Northern District of
California; and (iv) the United States District Court for the
District of Massachusetts.
As of November 14, 2018, seven have been dismissed and one has been
partially dismissed. The actions involved or involve claims under
various sections of the Securities Act against the company, certain
of its current and former directors and officers, the underwriters
of its IPO and certain other defendants.
The four actions commenced in the Superior Court of the State of
California, County of San Mateo were dismissed in January 2017 for
lack of personal jurisdiction, and the action commenced in the
United States District Court for the Northern District of
California was voluntarily dismissed in March 2017. Additionally,
the two actions commenced in the Superior Court of the Commonwealth
of Massachusetts, Suffolk County, or the Superior Court, were
consolidated in December 2017, and voluntarily dismissed with
prejudice in November 2018, after the District Court for the
District of Massachusetts partially dismissed the related claims in
that court and the parties in the Superior Court entered a
stipulation of dismissal with prejudice.
The action commenced in the United States District Court for the
District of Massachusetts (the "District Court"), alleging
violations of Sections 11 and 15 of the Securities Act and Sections
10(b) and 20(a) of the Securities Exchange Act of 1934, as amended,
or the Exchange Act, was partially dismissed on August 23, 2018.
In particular, the District Court granted the motion to dismiss the
claims under Sections 11 and 15 of the Securities Act, finding that
the plaintiff failed to plead a false or misleading statement in
the IPO registration statement. The District Court did not address
the claims under Sections 10(b) and 20(a) of the Exchange Act
because, as a result of the dismissal of the claims under the
Securities Act, the lead plaintiff lacked standing to pursue those
claims.
Because the action in the District Court was styled as a class
action, the District Court permitted the plaintiff to file a
supplemental memorandum concerning standing or a motion to appoint
a substitute or supplemental plaintiff. On September 10, 2018, the
plaintiff sought leave to amend his complaint to add a new
plaintiff that purportedly has standing to pursue Exchange Act
claims, and the company opposed the motion to amend on September
24, 2018.
ReWalk Robotics said, "Based on information currently available and
the current stage of the litigation, we are unable to reasonably
estimate a possible loss or range of possible losses, if any, with
regard to the remaining lawsuit in the District Court; therefore,
no litigation reserve has been recorded in our consolidated balance
sheets as of December 31, 2018. We will continue to evaluate
information as it becomes known and will record an estimate for
losses at the time or times if and when it is probable that a loss
will be incurred and the amount of the loss is reasonably
estimable."
ReWalk Robotics Ltd., a medical device company, designs, develops,
and commercializes exoskeletons for wheelchair-bound individuals
with mobility impairments or other medical conditions. The company
was formerly known as Argo Medical Technologies Ltd. ReWalk
Robotics Ltd. was founded in 2001 and is headquartered in Yokne'am
Illit, Israel.
RHAPSODY INT'L: Motion for Class Action Settlement Approval Filed
-----------------------------------------------------------------
Robert Levine, writing for Billboard, reports that almost three
years after the law firm Michelman & Robinson filed a putative
class-action lawsuit against Rhapsody International on behalf of
David Lowery and fellow songwriters Victor Krummenacher and David
Faragher for infringing their mechanical rights, a deal to end the
case is moving forward.
On Feb. 15, the firm filed in the U.S. District Court of Northern
California a motion for preliminary approval of a settlement that
will get self-published songwriters $35 for every composition
Rhapsody played that's registered with the U.S. Copyright Office
and $1 for every unregistered composition the service played at
least 24 times. Like the case against Spotify settled in 2017, this
involves the service's failure to properly license and pay for
songwriters' mechanical rights -- and bringing it to a close will
allow Rhapsody to move forward with less uncertainty.
The total damages Rhapsody will pay are capped at $10 million --
with songwriter payouts reduced if too many claims come in --
although the cap could increase to $20 million if the company's
financial situation changes. (Rhapsody has already reached a
settlement with the National Music Publishers' Association that
covers the majority of the compositions it infringed.)
Additionally, Rhapsody will set up an artist advisory board with an
annual budget of at least $30,000 to promote the service as a
creator-friendly platform, and institute an "artist referral
program" that will give creators a $10 fee for each subscriber they
refer. Although the class action settlement with Spotify calls for
the creation of a mechanical licensing committee, this goes further
in establishing the involvement of creators.
"We weren't just looking at money," Michelman & Robinson chairman
Sanford Michelman tells Billboard. "Artists also have noneconomic
rights, as well as this board and a voice on business practices."
Rhapsody will give less money to self-published songwriters than
Spotify, which is expected to pay out $43 million in its
settlement. Copyright infringement lawsuits that involve registered
works usually ask for statutory damages, which are assessed -- at
up to $150,000 per work in cases of willfull infringement -- by the
number of works, not how much they were used. Although the fact
that Spotify is far bigger than Rhapsody might not matter so much
legally, the company might not be able to afford the kind of
damages that Spotify can. (That amount does not include attorneys
fees.) If the financial information Rhapsody gave Michelman &
Robinson proves inaccurate, the settlement cap will increase to $20
million.
Self-published songwriters whose mechanical rights were infringed
can claim a payment, exclude themselves from the settlement, or
object to it. A hearing on the settlement is currently scheduled
for March 13.
The proposed settlement is strikingly different from the one
reached with Spotify, and it's better for less popular songwriters
and arguably not as good for popular ones. Unlike the Spotify
settlement, this one would pay songwriters -- most of them
presumably amateurs -- who have not registered their compositions
with the copyright office. (Although they will only get $1 for
every work that's been played at least 24 times, that's not bad
considering that unregistered works aren't eligible for statutory
damages.)
The Spotify settlement called for a fund of $43.45 million to be
divided among songwriters according to the number of times their
infringed compositions were streamed, so major songwriters would
earn more, according to the popularity of their infringed
compositions. Under this settlement, each writer of a composition
registered with the copyright office would receive $35, which means
some would receive far less than they would under a deal set up
like Spotify's, while others will get more. This model is far
simpler, although Spotify is responsible for paying the cost of
administering its settlement.
Although many streaming services have infringed mechanical rights,
this could mark the last major class-action lawsuit on the subject,
since the Music Modernization Act offers streaming services a safe
harbor from lawsuits for statutory damages for mechanical rights
infringements filed after Dec. 31, 2017 under most circumstances.
[GN]
ROCKEFELLER UNIVERSITY: Levy Konigsberg Files Class Action
----------------------------------------------------------
Terry Windall, writing for Massachusetts Newswire, reports that New
York-based law firm Levy Konigsberg LLP has filed a class action
lawsuit against Rockefeller University Hospital based on
allegations related to the Hospital's handling of sexual abuse
claims made against Dr. Reginald Archibald, a faculty member who
served on the University's faculty between the 1940s and 1980s.
According to the complaint filed February 13, 2019, Archibald was a
pediatric endocrinologist at the hospital and saw more than 9,000
patients over the course of his career.
The lawsuit alleges that Archibald likely molested thousands of
patients in hospital examination rooms and his office and also made
pornographic photos of his victims, which were kept on Rockefeller
property. Furthermore, the complaint alleges that staff members
were aware of both Archibald's conduct and the existence of the
photographs and did not disclose either.
LK lawyers representing the plaintiffs allege that complaints
regarding Archibald go back to at least the 1990s, and Rockefeller
University admits that it has been aware of the abuse since 2004 at
the latest.
The complaint further claims that the University waited until 2018
to contact former patients and that the shock of receiving an
unsolicited communication from the facility that facilitated
Archibald's abuse caused severe emotional distress and invaded
patients' privacy.
The lawsuit is seeking compensatory, punitive, and exemplary
damages for past and future pain and suffering and past and future
emotional distress and mental anguish, costs of future counseling,
therapy, and medical treatment related to the injuries inflicted by
the defendant, pre-judgment and post-judgment interest, attorneys'
fees, and various other forms of relief.
About Levy Konigsberg LLP:
Levy Konigsberg LLP -- https://www.levylaw.com -- is a New
York-based law firm that represents plaintiffs throughout the
United States in a variety of matters, including lead poisoning
litigation, sex abuse cases, mesothelioma litigation, and actions
against pharmaceutical companies. Prospective clients can schedule
a free case evaluation by calling the nationwide toll-free line at
1-800-988-8005. [GN]
SACRAMENTO, CA: Court Approves Settlement in Valentine FLSA Suit
----------------------------------------------------------------
In the case, TRACEY VALENTINE, on behalf of herself and all
similarly situated individuals, Plaintiffs, v. SACRAMENTO
METROPOLITAN FIRE DISTRICT, Defendant, Case No.
2:17-cv-00827-KJM-EFB (E.D. Cal.), Judge Kimberly J. Mueller of the
U.S. District Court for the Eastern District of California granted
the parties' joint motion for approval of the settlement agreement
and dismissal of the case.
The Defendant is a fire protection district that provides fire
protection and emergency medical services to the Sacramento
metropolitan area. The Plaintiffs are or were employed by the
Dfendant as firefighters, fire engineers, fire captains, fire
inspectors, emergency medical technicians, paramedics, fire
mechanics, and other miscellaneous fire personnel. At all times
relevant to the case, the Plaintiffs were nonexempt and entitled to
overtime compensation under the Fair Labor Standards Act ("FLSA").
Many details of the Plaintiffs' compensation are governed by
union-negotiated labor agreements, referred to as memoranda of
understanding ("MOU"). Two MOU provisions are relevante: First,
the Plaintiffs may waive district-provided medical insurance and
receive a cash payment of $300 per month in lieu of medical
insurance. Second, firefighters on fire suppression shifts may
receive holiday pay in lieu of paid holidays off.
In June 2016, the Ninth Circuit held that cash payments made to
employees who waive an employer's health insurance coverage must be
included in overtime pay rates under the FLSA. Shortly
thereafter, the parties began discussions as to whether and how the
District's cash-in-lieu payments would be included in recipients'
overtime rates. Because the parties were unable to agree, the
Plaintiffs filed the lawsuit on April 20, 2017.
In their complaint, the Plaintiffs contend the overtime rate
("regular rate") the Defendant paid to each Plaintiff was
miscalculated, resulting in underpayment of overtime. They seek
three-years of back overtime pay, liquidated damages, and
reasonable attorneys' fees and costs under the FLSA. The
Plaintiffs brought the collective action on behalf of all similarly
situated individuals who were employed by the Defendant over the
last three years, worked overtime, and received the referenced
remuneration.
On Oct. 17, 2017, the Court conditionally certified the matter as
an FLSA collective action. After the Defendant sent notice to
putative collective action members, a total of 534 current and
former District employees opted into the suit. After preliminary
settlement negotiations and the exchange of informal discovery, the
parties participated in court-convened settlement conferences on
Feb. 8 and 15, 2018. After reaching a settlement agreement, the
parties filed the instant joint motion for approval of the
agreement and dismissal of the case.
The key terms of the proposed settlement are:
1. The parties have agreed to settle the matter for a total
sum of $1,376,827.22, which includes all amounts to be paid by
Defendant to the Plaintiffs, attorneys' fees and costs inclusive,
to resolve the matter.
2. The Defendant will pay back overtime pay due to
cash-in-lieu recipients for the period from April 20, 2014 until
January 2018 using the more generous overtime practices set forth
in the Plaintiffs' MOUs, as opposed to what is required under the
FLSA.
3. The Defendant will pay two years of back overtime pay due
to holiday-in-lieu recipients using the definition of overtime set
forth in the Plaintiffs' MOUs, as opposed to what is required under
the FLSA.
4. The Defendant will incorporate holiday-in-lieu pay into its
overtime calculation using a methodology that will more than meet
its minimum FLSA obligations, effective March 2018 and until at
least January 2021.
5. The Defendant will pay Plaintiff Tracey Valentine $1,000 in
recognition of her appointment as the collective action
representative.
6. Of the total settlement amount, $275,165.44 is allocated to
the Plaintiffs' counsel for attorneys' fees and costs, which
represents approximately 20% of the total settlement amount.
7. The parties agree that relevant provisions in the
Plaintiffs' MOUs related to overtime will remain in full force and
effect until January 2021.
8. The Plaintiffs agree to release all overtime claims against
the Defendant under any legal theory relating to or arising from
this action, including but not limited to breach of contract and
the FLSA, and agree to dismiss the Valentine lawsuit with prejudice
and to effectuate dismissal of their pending overtime grievance
with prejudice.
Judge Mueller finds that the FLSA settlement is fair and
reasonable. As both a percentage of the overall settlement award
and compared to a reasonable lodestar calculation, the attorneys'
fees award in the settlement is reasonable. Finally, she finds
that the amount of the incentive award for the Named Plaintiff
under the settlement is negligible with respect to the overall
settlement amount, and less than has been awarded in similar
cases.
For these reasons, Judge Mueller granted the parties' joint motion
for approval of settlement agreement. Additionally, she granted
the the parties' stipulation to allow Daniel Weld to be included as
an individual Plaintiff. She also granted the stipulation to
dismiss the Plaintiffs listed in ECF No. 69. The case is
dismissed.
A full-text copy of the Court's Feb. 15, 2019 Order is available at
https://is.gd/qV7Dfr from Leagle.com.
racey Valentine, on behalf of herself and all similarly situated
individuals, Plaintiff, represented by David Emilio Mastagni --
davidm@mastagni.com -- Mastagni Holstedt, APC, Isaac Sean Stevens
-- istevens@mastagni.com -- Mastagni Holstedt, APC, Ace Thomas
Tate, Mastagni Holstedt, APC & Ian Barclay Sangster --
isangster@mastagni.com -- Mastagni Holstedt, APC.
Sacramento Metropolitan Fire District, Defendant, represented by
Morin Isaac Jacob -- mjacob@lcwlegal.com -- Liebert Cassidy
Whitmore & Lisa S. Charbonneau -- lcharbonneau@lcwlegal.com --
Liebert Cassidy Whitmore.
SIMM ASSOCIATES: Brotz Seeks FDCPA and FCCPA Class Certification
----------------------------------------------------------------
Joyce Lorraine Brotz seeks certification of her class action
captioned JOYCE LORRAINE BROTZ, Individually and on behalf of a
class of persons similarly situated v. SIMM ASSOCIATES, INC., a
Delaware corporation, Case No. 6:17-cv-01603-PGB-TBS (M.D. Fla.),
to secure redress for alleged violations of the Fair Debt
Collection Practices Act, the Florida Consumer Collection Practices
Act, breach of contract, and unjust enrichment.
Ms. Brotz proposes these class definitions pursuant to Rule
23(b)(3) of the Federal Rules of Civil Procedure:
* FDCPA Subclass:
All persons in the United States who paid a "convenience
fee" to SIMM ASSOCIATES, INC. for the method of payment
used, during the time period beginning one year prior to the
filing of the initial Complaint in this action through the
date that Notice issues to the Class.
* FCCPA Subclass:
All persons with addresses within the State of Florida who
paid a "convenience fee" to SIMM ASSOCIATES, INC. for the
method of payment used, during the time period beginning two
(2) years prior to the filing of the initial Complaint in
this action through the date that Notice issues to the
Class.
* Florida Unjust Enrichment Subclass:
All persons with addresses within the State of Florida who
paid a "convenience fee" to SIMM ASSOCIATES, INC. during the
time period beginning four (4) years prior to the filing of
the initial Complaint in this action through the date that
Notice issues to the Class.
Specifically excluded from all three subclasses are all persons
with addresses within the State of Georgia and those persons
falling within the settlement class certified by the U.S. District
Court for the Eastern District of New York in the case styled
Cheatham v. Simm Associates, Inc. et al., Civil Action No. 2:
15-06071-LUW-SIL ("Cheatham Classes").
Ms. Brotz also asks the Court to appoint her as class
representative and her attorneys as counsel for the Classes.[CC]
The Plaintiff is represented by:
Janet R. Varnell, Esq.
Brian W. Warwick, Esq.
VARNELL & WARWICK, P.A.
P.O. Box 1870
Lady Lake, FL 32158
Telephone: (352) 753-8600
Facsimile: (352) 504-3301
E-mail: jvarnell@varnellandwarwick.com
bwarwick@varnellandwarwick.com
- and -
Donald E. Petersen, Esq.
LAW OFFICE OF DONALD E. PETERSEN
Post Office Box 1948
Orlando, FL 32802-1948
Telephone: (407) 648-9050
E-mail: petersen221@yahoo.com
SMC STONE: Cumbe Suit Alleges Wage and Hour Law Violations
----------------------------------------------------------
Miguel Vinanzaca Cumbe, individually and on behalf of all others
similarly situated v. SMC Stone International Inc., and Sing Ming
Chao, Case No. 1:19-cv-01186 (E.D. N.Y., February 28, 2019), seeks
to recover damages for egregious violations of the state and
federal wage and hour laws.
Although the Plaintiff worked approximately 72 or more hours per
week during his employment by the Defendants, the Defendants did
not pay the Plaintiff time and a half for hours worked over 40, a
blatant violation of the overtime provisions contained in the FLSA
and NYLL, asserts the complaint.
The Plaintiff worked as a stone fabricator and general laborer for
the Defendants from October 1998 until November 2018.
The Defendants own and operate SMC Stone International Inc., a
corporation organized under the laws of New York with a principal
executive office at 640 Morgan Avenue, Brooklyn, New York 11222.
[BN]
The Plaintiff is represented by:
Loman Avshalumov, Esq.
HELEN F. DALTON & ASSOCIATES, PC
80-02 Kew Gardens Road, Suite 601
Kew Gardens, NY 11415
Tel: (718) 263-9591
Fax: (718) 263-9598
SODEXO INC: Rivera Moves to Certify Class of Hourly-Paid Workers
----------------------------------------------------------------
The Plaintiff in the lawsuit entitled ESTEVAN RIVERA, individually
and on behalf of a class of similarly situated individuals v.
SODEXO, INC., a Delaware Corporation, SDH EDUCATION WEST LLC, a
Delaware LLC, and DOES 1 -100, inclusive, Case No.
2:18-cv-10086-RGK-JPR (C.D. Cal.), moves the Court to certify a
Class consisting of:
All non-exempt, hourly-paid employees of Defendants in
California who had the cost of Shoes For Crews
slip-resistant shoes deducted from their payroll, without
reimbursement by Defendants, between October 4, 2014 and the
present.
Mr. Rivera also moves the Court for his appointment as Class
Representative, and for appointment of his attorneys as Class
Counsel.
The lawsuit was filed on October 4, 2018, containing causes of
action for Violations of California Labor Code (Unreimbursed
Business Related Expenses); Violation of California Labor Code
(Unlawful Business Deductions), and Violation of California
Business & Professions Code.
The Court will commence a hearing on April 1, 2019, at 9:00 a.m.,
to consider the Motion.[CC]
The Plaintiff is represented by:
Robert Starr, Esq.
Eric S. Mintz Esq.
Manny Starr, Esq.
FRONTIER LAW CENTER, APC
23901 Calabasas Road, Suite 2074
Calabasas, CA 91302
Telephone: (818) 914-3433
Facsimile: (818) 914-3433
E-mail: robert@frontierlawcenter.com
eric@frontierlawcenter.com
manny@frontierlawcenter.com
SPOTIFY TECH: Appeal from Ferrick Case Ruling Due April 15
----------------------------------------------------------
Spotify Technology S.A., said in its Form 20-F report filed with
the U.S. Securities and Exchange Commission on February 12, 2019,
for the fiscal year ended December 31, 2018, that the objectors'
deadline to seek further appeals with the United States Supreme
Court in the case Ferrick et al. v. Spotify USA Inc., is April 15,
2019.
Between December 2015 and January 2016, two putative class action
lawsuits were filed against Spotify USA Inc. in the U.S. District
Court for the Central District of California, alleging that the
Group unlawfully reproduced and distributed musical compositions
without obtaining licenses.
These cases were subsequently consolidated in May 2016 and
transferred to the U.S. District Court for the Southern District of
New York in October 2016, as Ferrick et al. v. Spotify USA Inc.,
No. 1:16-cv-8412-AJN (S.D.N.Y.).
In May 2017, the parties reached a signed class action settlement
agreement that the court preliminarily approved, pursuant to which
the Group will be responsible for (i) a US$43 million cash payment
to a fund for the class, (ii) all settlement administration and
notice costs, expected to be between US$1 million to US$2 million,
(iii) a direct payment of class counsel's attorneys' fees of up to
US$5 million dollars, (iv) future royalties for any tracks
identified by claimants, as well as other class members who provide
proof of ownership following the settlement, and (v) reserving
future royalties for unmatched tracks.
On May 22, 2018, the court granted final approval of the
settlement. The court's order granting approval of the settlement
was appealed by objectors to the U.S. Court of Appeals for the
Second Circuit.
As of January 15, 2019, those appeals have all been resolved. The
objectors' deadline to seek further appeals with the United States
Supreme Court is April 15, 2019.
Even if the approval of the settlement is upheld on appeal, the
Group may still be subject to claims of copyright infringement by
rights holders who have purported to opt out of the settlement or
who may not otherwise be covered by its terms.
Spotify Technology S.A., together with its subsidiaries, provides
music streaming services worldwide. It operates through two
segments, Premium and Ad-Supported. Spotify Technology S.A. was
founded in 2006 and is based in Luxembourg City, Luxembourg.
SSC CARMICHAEL: Farfan's Bid to Clarify Feb 1 Arbitration Order OKd
-------------------------------------------------------------------
In the case, NAOMI FARFAN, et al., Plaintiffs, v. SSC CARMICHAEL
OPERATING COMPANY LP, et al., Defendants, Case No. 18-cv-01472-HSG
(N.D. Cal.), Judge Haywood S. Gilliam, Jr. of the U.S. District
Court for the Northern District of California granted in part and
denied in part the Plaintiffs' motion for leave to file a motion
for reconsideration and in the alternative requested clarification
regarding the Feb. 1, 2019 order compelling arbitration of their
non-PAGA claims.
On Feb. 1, 2019, the Court granted the Defendants' motions to
compel arbitration of the claims of Plaintiffs Terri Richter,
Farfan, and Lollie Webster. It compelled arbitration of the
Plaintiffs' non-PAGA claims. On Feb. 12, 2019, the Plaintiffs
filed the currently-pending motion for leave to file a motion for
reconsideration, and in the alternative requested clarification
regarding the February 1 order.
The Plaintiffs contend that a material difference in fact or law
exists from that which was presented to the Court prior to its
February 1 order, due to an order issued in the Western District of
Texas on Jan. 4, 2019. Judge Gilliam finds that the Plaintiffs
have not identified a material difference in fact or law by
bringing the Texas court's order to the Court's attention. The
Texas decision relied on the same facts presented to the Court, and
is not binding on the Court. Moreover, they never brought the
Texas court's order to the Court's attention before the February 1
ruling, even though they clearly could have. The Judge will
therefore deny their Plaintiffs' motion for leave to file a motion
for reconsideration.
The Plaintiffs request, in the alternative, that the Court
clarifies its order as to whether the Court has compelled only the
Plaintiffs' individual claims to arbitration or also has compelled
the class claims to arbitration. The Defendants contend that per
the Court's order, the Plaintiffs' non-PAGA claims are compelled to
arbitration on an individual basis, while their PAGA claims are
stayed pending resolution of the individual arbitrations. The
Plaintiffs contend that the Court's order compelled all of their
non-PAGA claims, including their putative class claims, to
arbitration.
The Judge holds that the Plaintiffs are correct. The Court, in
finding that the EDR Booklets are ambiguous as to whether putative
class action claims must be arbitrated, resolved the ambiguity in
favor of arbitration of those claims, and therefore submitted any
future litigation with respect to those claims, including any
dispute as to whether class claims are precluded, to the arbitrator
in the first instance.
For the foregoing reasons, Judge Gilliam denied the Plaintiffs'
motion for leave to file a motion for reconsideration, and granted
their motion for clarification of the Court's February 1 order.
A full-text copy of the Court's Feb 19, 2019 Order is available at
https://is.gd/Gp8ak2 from Leagle.com.
Naomi Farfan, individually and on behalf of other members of the
general public similarly situated, Lollie Webster, individually and
on behalf of other members of the general public similarly situated
& Terri Richter, individually and on behalf of other members of the
general public similarly situated, Plaintiffs, represented by Bryan
J. McCormack, McCormack & Erlich, LLP, George Ryan Nemiroff --
gnemiroff@wynnelawfirm.com -- Wynne Law Firm & Edward Joseph Wynne
-- Wynne@wynnelawfirm.com -- Wynne Law Firm.
SSC Carmichael Operating Company LP, SSC Carmichael Operating GP
LLC, SSC Carmichael Management Company LP, SSC Hickory 13th
Operating Company LLC, SSC Hickory East Operating Company LLC,
Savaseniorcare Administrative Services, LLC, Savaseniorcare, LLC &
Savaseniorcare Consulting, LLC., Defendants, represented by
Jonathan Walcom Black -- jonathan.black@ogletree.com -- Ogletree,
Deakins, Nash, Smoak & Stewart, P.C. & Michael J. Nader --
michael.nader@ogletree.com -- Ogletree, Deakins, Nash, Smoak &
Stewart, P.C..
ST. AUGUSTINE SCHOOL: Chebere Appetite Suit Alleges TCPA Violation
------------------------------------------------------------------
Chebere Appetite, Inc. dba Sergio's Catering, individually and on
behalf of all others similarly situated v. St. Augustine School of
Medical Assistants, Case No. 1:19-cv-20799 (S.D. Fla., February 28,
2019), is brought against the Defendant for violation of the
Telephone Consumer Protection Act.
On or about August 20, 2018 and November 12, 2018, the Defendant,
without the Plaintiff's express invitation or permission, arranged
for and caused a telephone facsimile machine, computer, or other
device to send unsolicited fax advertisements, advertising the
commercial availability or quality of any property, goods, or
services, to Plaintiff's fax machine located in Miami Gardens,
Florida.
The Plaintiff is a food service/catering company doing business in
the State of Florida.
The Defendant is a company with its principal office located at
2870 Peachtree Road, Atlanta, Georgia 30305. [BN]
The Plaintiff is represented by:
Jon P. Dubbeld, Esq.
SWIFT, ISRINGHAUS & DUBBELD, P.A.
10460 Roosevelt Blvd N., Suite 313
St. Petersburg, FL 33716
Tel: (727) 490-9919
Fax: (727) 255-5332
E-mail: jdubbeld@swift-law.com
SUBSTRATUM: Class urged Over Day-Trading of ICO Funds
-----------------------------------------------------
Fifi Arisand, writing for Chepicap, reports that Binance's CEO,
Changpeng Zhao responds to Substratum CIO's dissatisfied questions,
hinting that they have been day-trading their ICO funds.
Following the delisting announcement made by Binance just a couple
of days ago, the Substratum team posted on their Twitter account
that they have reached out to the exchange for a clarification.
The tweet received many responses, including from Binance's CEO,
Changpeng Zhao, which ended up in engaging a "conversation" with
Substratum's CIO.
Initially, CZ was only giving a thumb to a comment made by a user,
@CHalexov2016, who said, "Again guys! Working product made price
and not exchange! Btw i hodl some $sub and lost with your product!
But not becouse of @binance delist but becouse of project team and
founders!"
His response triggered the "dissatisfied" Substratum's CIO, Abram
Cookson, who "demanded" explanations on the delisting decision.
CZ's response to the question hinting that Substratum has been
using the funds raised from ICO for trading.
"Maybe stop trading the funds you raised that was intended for
product dev?" he tweeted, followed by a statement that he will not
respond again and observe Cunningham's law, instead.
The Substratum team responded by claiming that it never happened
and that they'll be more than willing to provide "more granular
level detail" to Binance to clarify.
Defying his previous comment, CZ replied back by saying that
Binance couldn't give early warnings for delisting, since he said,
"Some teams (not you) may dump their own coins if they have early
news."
CZ's last comment responded by the Substratum team that said they
will provide access to Binance to their exchange account to clarify
the day trading "accusation".
The other comments vary, some expect it is just "a comedy of
unintended errors and misunderstandings and that in the end, all
will come right" or that "Binance will give SUB a second chance".
Others affirm CZ's allegation by saying, "If they have knowledge
that the substratum team are trading their ICO funds, I'd argue
they have an imperative to delist $sub. This rumor has been around
for a while and $sub holders have had a chance to dump their
stacks."
On Reddit, apparently, there has been a post trying to unite
Substratum's ICO investors to file a class action lawsuit against
the company. [GN]
SYNERGETIC COMMUNICATION: Faces Gorman Suit in E.D. New York
------------------------------------------------------------
A class action lawsuit has been filed against Synergetic
Communication, Inc. The case is captioned Christy Gorman on behalf
of himself or herself and all other similarly situated consumers,
the Plaintiff, vs. Synergetic Communication, Inc., the Defendant,
Case 2:19-cv-00963 (E.D.N.Y., Feb. 18, 2019). The suit demands
$1,000,000 alleging Fair Debt Collection Act violation.
Synergetic Communication is a professional collection agency.[BN]
Attorneys for the Plaintiff:
Jacob Silver, Esq.
JACOB SILVER, ATTORNEY AT LAW
237 Club Dr
Woodmere, NY 11598
Telephone: (718) 855-3834
Facsimile: (718) 534-0057
E-mail: silverbankruptcy@gmail.com
T ROWE PRICE: Continues to Defend Class Suit over 401(k) Plan
-------------------------------------------------------------
T. Rowe Price Group, Inc. said in its Form 10-K report filed with
the U.S. Securities and Exchange Commission on February 13, 2019,
for the fiscal year ended December 31, 2018, that the company
continues to defend itself against a putative class suit in
Maryland over its 401(k) Plan.
On February 14, 2017, T. Rowe Price Group, Inc., T. Rowe Price
Associates, Inc., T. Rowe Price Trust Company, current and former
members of the management committee, and trustees of the T. Rowe
Price U.S. Retirement Program were named as defendants in a lawsuit
filed in the United States District Court for the District of
Maryland.
The lawsuit alleges breaches of ERISA's fiduciary duty and
prohibited transaction provisions on behalf of a class of all
participants and beneficiaries of the T. Rowe Price 401(k) Plan
from February 14, 2011, to the time of judgment. The plaintiffs are
seeking certification of the complaint as a class action. T. Rowe
Price believes the claims are without merit and is vigorously
defending the action.
T. Rowe Price said, "This matter is in the early stages of
litigation and we cannot predict the eventual outcome or whether it
will have a material negative impact on our financial results, or
estimate the possible loss or range of loss that may arise from any
negative outcome."
No further updates were provided in the Company's SEC report.
T. Rowe Price Group, Inc. is a publicly owned investment manager.
The firm provides its services to individuals, institutional
investors, retirement plans, financial intermediaries, and
institutions. It launches and manages equity and fixed income
mutual funds. T. Rowe Price Group, Inc. was founded in 1937 and is
based in Baltimore, Maryland.
TECHPRECISION CORP: Discovery Extended to April 22 in Suit v. Ranor
-------------------------------------------------------------------
TechPrecision Corporation said in its Form 10-Q Report filed with
the Securities and Exchange Commission on February 13, 2019, for
the quarterly period ended December 31, 2018, that the court has
extended discovery in the employee class action against Ranor, Inc.
to April 22, 2019.
On or about February 26, 2016, nine former employees, or plantiffs,
of Ranor, Inc. (Ranor) filed a complaint in the Massachusetts
Superior Court, Worcester County, against Ranor and certain former
and current executive officers of Ranor, alleging violations of the
Massachusetts Wage Act, breach of contract and conversion based on
a modification made to Ranor's personal time off policy.
Plaintiffs claim that Ranor's modification to its personal time
off, or PTO, policy in April 2014 caused these employees to forfeit
earned PTO. Plaintiffs purport to assert their claims on behalf of
a class of all current and former employees of Ranor who were
affected by the modification to Ranor's PTO policy.
On August 30, 2018, a class certification hearing was conducted
where the Plantiffs' motion for class certification was granted
without opposition.
On October 23, 2018, the pre-trial discovery phase ended, but the
parties have requested a 6-month extension. The court has extended
discovery to April 22, 2019, with motions for summary judgment due
one month thereafter.
TechPrecision Corporation, through its subsidiaries, manufactures
and sells precision, large-scale fabricated, and machined metal
components and systems in the United States and the People's
Republic of China. The Company was founded in 1956 and is
headquartered in Wayne, Pennsylvania.
TELENAV INC: Expects Gergetz Suit to Be Concluded in November 2019
------------------------------------------------------------------
Telenav, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on February 8, 2019, for the
quarterly period ended December 31, 2018, that the company expects
that the class action lawsuit filed by Nathan Gergetz to be finally
concluded in or around November 2019.
On July 28, 2016, Nathan Gergetz filed a putative class action
complaint in the U.S. District Court for the Northern District of
California, alleging that Telenav violated the Telephone Consumer
Protection Act, or TCPA.
The complaint purports to be filed on behalf of a class, and it
alleged that Telenav caused unsolicited text messages to be sent to
the plaintiff from July 6, 2016 to July 26, 2016. The plaintiff
sought statutory and actual damages under the TCPA, attorneys' fees
and costs of the action, and an injunction to prevent any future
violations.
A settlement was subsequently reached, and the plaintiff filed a
motion for preliminary approval of class action settlement on March
5, 2018. The court granted preliminary approval of the class action
settlement on April 30, 2018 and final approval of the settlement
on September 27, 2018. The settlement became effective on October
30, 2018 and was paid by the company's technology errors and
omissions liability insurance policy, after payment of the
company's deductible of $250,000.
Telenav said, "We accrued the $250,000 deductible payment in fiscal
2018. We expect the settlement payments to be paid to claimants in
or around March 2019 and for the matter to be finally concluded in
or around November 2019."
Telenav, Inc., together with its subsidiaries provides connected
car and location-based platform services in the United States and
internationally. The company operates through three segments:
Automotive, Advertising, and Mobile Navigation. Telenav, Inc. is
headquartered in Santa Clara, California.
TENNESSEE: Court Narrows Claims in L.L. ADA Suit
------------------------------------------------
In the case, L.L. a minor student, by and through his parents, B.L.
and R.L and Br.R. & Be.R., minor students, by and through their
parents, Chr. R. and Cha. R., and all persons similarly situated,
Plaintiffs, v. TENNESSEE DEPARTMENT OF EDUCATION and TENNESSEE
STATE BOARD OF EDUCATION, Defendants, Case No. 3:18-cv-00754 (M.D.
Tenn.), Judge Aleta A. Trauger of the U.S. District Court for the
Middle District of Tennessee, Nashville Division, granted in part
and denied in part the Defendants' Motion to Dismiss.
L.L. filed a due process complaint against the West Carroll special
school districts ("SSDs") involving his placement in Carroll County
Special Learning Center" ("CCSLC"). He did not name the TDOE or
the State Board in that complaint. L.L. and the West Carroll SSD
reached a resolution of any claims he might have had against the
SSD. That resolution expressly left open the possibility of L.L.
pursuing claims against the TDOE and State Board. Br.R. and Be.R.
did not file administrative complaints against the Hollow
Rock-Bruceton SSD. Shortly after L.L.'s due process action, in May
of 2018, the State of Tennessee "shut down" CCSLC permanently, a
step that the Plaintiffs attribute to the scrutiny brought on by
L.L.'s complaint.
On Aug. 11, 2018, LL., Br.R. and Be.R., through their respective
parents, filed their putative Class Action Complaint in the court,
naming the TDOE and the State Board as Defendants and alleging that
those agencies' failures to appropriately monitor the SSDs and
enforce the IDEA's LRE requirements contributed to the denial of
students' individually determined LREs at CCSLC.
They seek to represent a class consisting of the parents of all
children, and their children, who live in or are wards of Carroll
County, Tennessee and who attended Preschool at CCSLC and/or
attended K-12 at CCSLC and required supports and services of an
aide, paraprofessional, ancillary other, or similar
staff-assistance for mainstreaming/inclusion. They plead claims
under the IDEA, Section 504 of the Rehabilitation Act, and Title II
of the Americans with Disabilities Act.
On Oct. 22, 2018, the Defendants filed a Motion to Dismiss. First,
they argue that the Court should dismiss the claims against them
because the IDEA does not create a cause of action against SEAs for
their failures of monitoring and oversight. They argue next that
the Plaintiffs' causes of action are barred because they either
failed to exhaust the administrative complaint-and-appeal process
or failed to exhaust it with regard to these Defendants. They then
argue that the Plaintiffs' claims are moot, because CCSLC has been
shut down. Finally, they argue that Be.R.'s claims should be
dismissed because the plaintiffs have not specifically alleged that
his IEP actually entitled him to mainstreaming.
Judge Trauger finds that the Plaintiffs have alleged that the TDOE
and the State Board were aware of CCSLC but failed to take basic
supervisory steps to prevent its being used as a tool for
warehousing certain types of disabled students despite their LRE
needs, directly resulting in the deprivations that form the basis
of the Plaintiffs' claims. They also allege that, once the
Defendants became aware of the problems at CCSLC and shut the
school down, they took no steps to ensure that any damage done to
the students who had been improperly placed there was ameliorated.
At least at the complaint stage, those allegations are sufficient
to support causes of actions against an SEA. The Judge, therefore,
will not dismiss the claims on that ground.
Next, the Judge finds that the Plaintiffs, in their Complaint,
paint a disturbing picture of the conditions at CCSLC. It is worth
noting that, by their own account, those conditions might be
continuing today if L.L. had not filed an administrative complaint
and had, instead, merely waited for the courts to solve the
problem. Dozens of students could have been stranded in CCSLC
while the slow pace of litigation moved forward. He therefore
concludes that Br.R. and L.L. were required to exhaust their
administrative options, barring Br.R. from filing a claim in the
Court.
The Plaintiffs, including Be.R., have requested compensatory
education in the case. They also identify various forms of
injunctive relief that, they argue, are necessary to ensure that
the SSDs offer necessary mainstreaming opportunities in the future,
rather than sliding back into their old ways in the absence of
oversight. At this stage in the proceedings, the Judge cannot
conclude that such remedies would be unnecessary. Be.R. did not
sue based on his right to be educated away from a particular
building. He sued based on his right to be educated in the LRE
appropriate to his needs. One school's closing does not establish
that the issues he has identified have been resolved or that he has
received everything necessary to receive a FAPE in light of any
damage that might have been done by the SSDs' alleged violations
and the defendants' alleged failures that caused those violations
to occur and persist. The Judge, accordingly, will not dismiss
Be.R.'s claims as moot.
Finally, the Judge finds that regardless of what Be.R.'s
appropriate level of exposure to non-disabled children and a
general education setting may be, he was entitled to at least
consideration of the possibility that he was entitled to more than
CCSLC offered. That lack of individualized consideration, among
other things, would have significantly impeded his parents' right
to participate in formulating the IEP and may have impeded his own
right to a FAPE. Be.R. has, therefore, stated a claim under the
IDEA.
For the foregoing reasons, Judge Trauger granted in part and denied
in part the Motion to Dismiss filed by TDOE and the State Board,
and dismissed without prejudice. Br.R. and L.L.'s claims. An
appropriate order will enter.
A full-text copy of the Court's Feb. 15, 2019 Memorandum is
available at https://is.gd/5SVxAv from Leagle.com.
L.L., a minor student, by and through his parents, B.L., parent,
R.L., parent, Br.R., minor student, by and through parents, Be.R.,
minor student, by and through parents, Chr.R., parent & Cha.R.,
parent, Plaintiffs, represented by Jessica F. Salonus --
jsalonus@salonusfirm.com -- The Salonus Firm, PLC & Justin S.
Gilbert -- jgilbert@gilbertfirm.com -- Gilbert McWherter Scott
Bobbitt PLC.
Tennessee Department of Education & Tennessee State Board of
Education, Defendants, represented by Michael Markham, Tennessee
Attorney General's Office & Taylor William Jenkinss, Tennessee
Attorney General's Office.
TEXAS: Garibay Voting Rights Suit Moved to W.D. Tex.
----------------------------------------------------
Judge Nelva Gonzales Ramos of the U.S. District Court for the
Southern District of Texas, Corpus Christi Division, transferred
the case, JULIETA GARIBAY, et al., Plaintiffs, v. DAVID WHITLEY, et
al., Defendants, Civil Action No. 2:19-CV-040 (S.D. Tex.), to the
U.S. District Court for the Western District of Texas, San Antonio
Division, to be considered in coordination with civil action,
styled Texas League of United Latin American Citizens v. Whitley,
No. 5:19-cv-074-FB in the U.S. District Court for the Western
District of Texas, San Antonio Division.
On Feb. 2, 2019, the Plaintiffs filed the action seeking relief
from the Texas Secretary of State's Election Advisory No. 2019-02,
issued Jan. 25, 2019. On Jan. 29, 2019, a different set of
plaintiffs filed a similar action, the civil action no.
5:19-cv-074. The Plaintiffs in both cases seek to certify a class
action with a class of Plaintiffs that consists of citizens who are
registered to vote, but whose names have appeared on the list of
voters being challenged as non-citizens. The Plaintiffs in both
cases seek to enjoin any action that would interfere with the
individual Plaintiffs' right to vote, taken on the basis of the
challenged list and Advisory.
Judge Ramos finds that there is substantial overlap between the
cases. Consequently, pursuant to the first-to-file rule, the Court
is required to defer to the Western District court, a court of
coordinate jurisdiction and equal rank, to determine whether the
case may proceed independently or in coordination with the
previously-filed case. The rule applies despite the fact that the
parties are not identical.
Without ruling on the remaining issues briefed in the Defendants'
Motion to Dismiss, Judge Ramos granted the Defendants' request to
transfer, and transferred the action to the Western District of
Texas, San Antonio Division, to be considered in coordination with
civil action no. 5:19-cv-074.
A full-text copy of the Court's Feb 19, 2019 Order is available at
https://is.gd/GQSNbY from Leagle.com.
Julieta Garibay, Maria Yolisma Garcia, Lorena Tule-Romain, Abraham
Josue Espinosa Flores, Viridiana Tule Carrizales, Efren Gomez,
Elena Keane, Southwest Voter Registration Education Project, Mi
Familia Vota Educational Fund, La Union Del Pueblo Entero, Inc.,
Jane Doe, UnidosUS & Maria Felicitas Barbosa, Plaintiffs,
represented by Nina Perales -- nperales@maldef.org -- MALDEF,
Alejandra Avila, MALDEF, Ernest I. Herrera, MALDEF & John Paul
Salmon, Mexican American Legal Defense and Educational Fund.
David Whitley, in his official capacity as Texas Secretary of
State, Ken Paxton, in his official capacity as Texas Attorney
General & Greg Abbott, in his official capacity as Governor of
Texas, Defendants, represented by Patrick K. Sweeten, Office of the
Attorney General.
TEXAS: Notice of Appeal from Denial of Class Cert. in Wells Nixed
-----------------------------------------------------------------
In the case, WILLIAM J. WELLS, Plaintiff-Appellant, v. BRYAN
COLLIER, EXECUTIVE DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE;
KEVIN WHEAT; GREGORY VAUGHN, Defendants-Appellees, Case No.
18-40885 (5th Cir.), the U.S. Court of Appeals for the Fifth
Circuit (i) dismissed the Plaintiff's notice of appeal from the
Magistrate Judge orders, (ii) denied permission to appeal denial of
class certification, and (iii) denied the Plaintiff's motion to
appoint counsel in the Court.
In the civil rights case, the Plaintiff moved for joinder of claims
and a preliminary injunction. The district court referred the
motions to the Magistrate Judge, who denied them. The Plaintiff
filed a notice of appeal from that order.
The Appellate Court holds that appellate courts do not have
authority to review orders of a magistrate judge directly unless
the parties have consented to have the magistrate judge preside
over the case and enter judgment. Lacking consent, the Magistrate
Judge's rulings are reviewable only by appeal to the district
court. The parties did not consent to have the Magistrate Judge
preside over the case. The Court thus lacks jurisdiction over the
appeal.
The Plaintiff also filed a notice of appeal from the district
court's denial of class certification. A party wishing to appeal a
denial of class certification must petition the Appellate Court for
leave to do so. It pretermits whether Wells complied with that
requirement because it denies relief on other grounds. The Court
has wide discretion to permit an appeal from an order denying class
certification. Wells has not made a showing that it should
exercise that discretion. He says that the one missing element for
class action certification, adequacy of representation, could have
been remedied if the district court granted his motion to appoint
counsel. But the standard for appointment of counsel is separate,
and that decision was not appealed. And the Court has denied
permission to appeal in a similar situation.
Based on the foregoing, the Court (i) dismissed the Plaintiff's
notice of appeal from the Magistrate Judge orders, (ii) denied
permission to appeal denial of class certification, and (iii)
denied his motion to appoint counsel in the Court.
A full-text copy of the Court's Feb 19, 2019 Order is available at
https://is.gd/OsLm2q from Leagle.com.
Benjamin Lindberg Dower, for Defendant-Appellee.
TEZOS: Faces Consolidated ICO Class Action
------------------------------------------
P. H. Madore, writing for CCN, reports that Tim Draper-endorsed
blockchain Tezos is the subject of a consolidated class action
lawsuit brought by unsavory individuals. A group of Tezos community
members believes the lawsuit is depressing the Tezos price and that
the named lead plaintiff, Arman Anvari, does not adequately
represent the Tezos community. Anvari has publicly agreed with this
sentiment.
ARMAN ANVARI BACKS OUT AS LEAD PLAINTIFF
The list of problems with Mr. Anvari as the chief plaintiff in any
class action suit against Tezos is long. For one thing, he made
multiple death threats against Tezos co-founder Kathleen Breitman.
For another, he actively acknowledged in posts revealed by
investigative community members that he was violating the terms and
conditions of the Tezos suit.
He has requested to be removed from the case. A group calling
itself the "Tezos Legion" believes alternative lead plaintiffs are
equally bad.
One primary issue with the class action suit is that the terms and
conditions of the Tezos ICO specified that European courts should
be used. Tezos is based in Switzerland, though it was founded by
Americans Arthur and Kathleen Breitman. The blockchain experienced
a high degree of difficulty getting off the ground, not launching
until June 2018. The Tezos Legion describes the launch as
"successful," and characterizes this as a contrast to most other
ICOs funded during the same time.
"Delivery of a live, well-functioning network stands in direct
opposition to most projects in the blockchain and cryptocurrency
space. The Tezos mainnet has functioned well for nearly 5 months.
Over 80% of activated tokens are actively baking on a network
supported by ~460 bakers in 33 different countries. And there are
Tezos developer teams on 5 different continents."
TEZOS: SECURITY OR NAH?
Another issue with the case filed initially by Mr. Anvari is that
Tezos found evidence that he continued to purchase Tezos tokens
even after filing the suit. Moreover, he openly expressed awareness
that the tokens were not securities, which calls into question the
suit, which in part alleges that Tezos violated securities laws.
At least 1200 people who bought the Tezos ICO have signed a
petition against the class action lawsuit. The majority of users
seem happy with a functioning, "self-amending blockchain." The
interesting aspect of Tezos has always been its governance model.
Tezos, like Ethereum, sports its own coding language for the
development of smart contracts.
Like several potential Ethereum alternatives, Tezos is still in its
infancy. An outspoken and sizable group of Tezos community members
want to give it time to grow. At present, they diametrically oppose
any class action lawsuit.
TEZOS COULD HAVE BEEN WORSE
The Tezos price is currently just 7 cents below its ICO offering
price of roughly 47 cents. This is far better performance than a
number of other ICOs launched at the same time. For example, SONM's
ICO price was roughly 59 cents, but today it's worth less than 2
cents.
CCN was told by former Tezos class action lawyer David Silver that
it doesn't matter who or how many people are certified to proceed
with a class action lawsuit. "It can be one or a million," he said
in a gracious phone call this morning. This is to say that the case
can proceed regardless of the community's feelings. It's a matter
of law, not sentiment. One strategy those opposed to the case might
pursue if it continues is to sign on, take their proceeds from any
potential settlement, and re-invest them in the blockchain they
appear to believe in.
But the Tezos Foundation doesn't intend to go down without a fight.
The nature of the other potential lead plaintiffs will be called
into question just like that of Mr. Anvari was. As the Tezos Legion
notes, other potential lead plaintiffs are in some respects even
worse. One, Trigon Trading (owned by Salerno Law), is related to a
cult leader. Another is some sort of misogynist entrepreneur. [GN]
TRANS-ATLANTIC DIRECT: Faces Class Action in Canada Over Fraud
--------------------------------------------------------------
Rosa Marchitelli and Ana Komnenic, writing for CBC News, report
that dozens of investors in Ontario say they were conned out of
millions of dollars after fraudsters using fake names were featured
as investment "experts" on their favourite radio stations -- on
shows they say sounded like news but were actually infomercials.
"I trusted what I was hearing on the radio," said Tracey Conrad,
who lost $15,000 after listening to the so-called financial experts
on a popular radio show in her hometown of London, Ont.
The supposed foreign exchange experts were regularly featured on at
least five local radio stations -- owned by Corus Entertainment and
Bell Media -- that ran in southern Ontario between 2016 and part of
2017.
During the segments, the "experts" would often call into the radio
shows from locations like London, U.K., to give financial advice,
encouraging listeners to invest in what they claimed was a
reputable foreign exchange investment company: Trans-Atlantic
Direct.
Conrad said she "couldn't breathe" after getting a letter in August
from her provincial securities regulator, notifying her that the
men she'd listened to on the radio -- regularly being interviewed
by her favourite on-air personalities -- are being investigated for
operating what's believed to be a "fraudulent enterprise" that was
"promoted on local radio programs."
"At first, I didn't even believe the letter," said Conrad.
The case highlights the increasingly blurred line between programs
that sound like news but are actually paid advertising, and how
disclaimers often do little to inform audiences of the difference,
says media ethicist Stephen Ward.
"The whole area of paid content is an ethical quagmire . . . Cases
where it's blurred cause false stories," he said.
By the time the so-called experts were pulled off the air, Canadian
investors were out more than $6 million, according to a
class-action lawsuit filed against the fraudsters, their companies
and Corus Entertainment. Corus owns what are now branded as Global
News radio stations that featured the so-called experts on segments
titled "Ask the Experts" and "The Global Market."
Corus says it pulled the programs as soon as it heard about the
concerns.
The class action was filed on Jan. 22. The allegations haven't been
proven.
'All they had to do was make a phone call'
The so-called experts weren't registered with the Ontario
Securities Commission (OSC), so they weren't allowed to operate in
the province. The OSC believes they used fake names and had a fake
company.
Conrad and about 30 other investors who are part of the lawsuit
believe the radio stations are partly to blame for their financial
losses, according to court documents.
"All they had to do was make a phone call to the security
commission to find out if they [Trans-Atlantic Direct] were legally
able to operate in Ontario. And if they had done that, they would
have been told no and I would have all my money," Conrad said.
The programs sounded factual, she said, and the hosts interviewing
the "experts" were the same people who covered the news.
"I trust the people that are my local news reporters, that when
they're talking to somebody every single week and they're making
claims like that, that they are legitimate."
Fraudsters disappear with money
According to the lawsuit, the radio shows aired throughout 2016 and
into part of 2017. Listeners were told there was minimal risk to
investing and were urged to call Trans-Atlantic Direct with
investment questions.
While on air, the so-called investment experts called themselves
Stewart Price and Martin Schwartz. The OSC alleges they are
actually Mark Lee Singer and Bernard Justin Sevilla. According to
the allegations set out in OSC documents, the men never invested
the money, as promised, instead keeping it for themselves.
Trans-Atlantic's phone number is now disconnected and its website
has been taken down. Go Public reached out to Singer and Sevilla
through multiple email addresses and phone numbers associated with
the men, but neither returned the requests for comment.
Other investors tell Go Public they haven't recovered any of their
money and haven't been able to reach anyone at Trans-Atlantic in
over a year.
Corus calls shows 'infomercials'
Corus declined an on-camera interview with Go Public and instead
issued a statement.
Trans-Atlantic Direct purchased an hour of weekly airtime on two
Corus radio stations in Ontario -- AM900 CHML in Hamilton and AM980
CFPL in London -- "for the purposes of airing a regular
infomercial," the company said. The program began airing in January
2016.
Corus rebranded its radio stations in 2017, putting them under the
Global News name, a few months after the TransAtlantic Direct
programs were taken off the air.
"The program was paid advertising," said Corus spokesperson Rishma
Govani, "and was clearly identified as such."
"Each broadcast included clear disclaimers before, after and during
the program, advising listeners that it was paid-advertising
programming and that the opinions expressed during the program were
TAD's alone, and not those of Corus or its affiliates."
However, Govani admits Price or Schwartz appeared on other radio
programs, "providing opinion or commentary." In those cases, she
says, "it is likely that no disclaimer would have been provided."
Two investors Go Public spoke with say they never heard the
disclaimers on any of the programs they heard.
Corus also said Trans-Atlantic Direct was obligated to "ensure that
the scripts, recordings or instructions submitted to [the stations]
are in accordance with commercial and trade ethics, applicable
codes and laws or bylaws in force at the time of broadcast," and
that the stations "relied on the company to comply with those
obligations."
The shows were pulled in 2017 after Corus received "certain
information" and a small number of listener complaints, Govani
said. Corus wouldn't elaborate on what information it received, or
provide details about the complaints.
It said it wasn't aware of any investigation into Trans-Atlantic
until several months after it pulled the program.
The company also said it intends to defend itself against the
lawsuit, saying it "is confident it acted diligently and
responsibly in removing the program from the air when it did, based
on the information available to it at the time."
'Fake experts allowed to create fake' show
Trans-Atlantic Direct also aired on three Bell Media radio stations
in southern Ontario from late May 2017 until November 2017 as part
of a one-hour paid program, according to Scott Henderson,
vice-president of communications for Bell Media.
Cheryl Hanstke first heard about what she thought sounded like
promising investment opportunities with Trans-Atlantic on one of
those stations, NewsTalk 610 CKTB.
"They were presented as foreign exchange investment specialists,"
Hanstke said.
By December 2017, she'd invested $20,000. She didn't get a cent of
it back, she says.
"I never once believed it was an ad. I always believed it was a
gentleman who was being interviewed by the host," said Hanstke,
noting she had been listening to the the same radio host ever since
moving to St. Catharines, Ont., in 2013.
"I have said again and again that the 'fake' experts allowed to
create this 'fake' investment show through the various radio
stations . . . failed to do their due diligence," Hanstke said.
Bell Media didn't respond to Go Public's questions about how it
vets the people on its shows, but in an email, Henderson wrote:
"The program had aired on other non-Bell Media-owned radio
stations, with no indication of concerns about the individuals
involved with the program. When we became aware of legitimate
concerns regarding TAD's activities, we removed the program from
our stations and terminated our relationship with TAD."
Bell Media's policies and practices related to advertising and paid
programming are continually reviewed and updated, he said.
Michael Ellis, the lawyer representing investors in the class
action against Corus, told Go Public he's also preparing a lawsuit
against Bell Media.
"This all gets back to the fact that these media companies were
putting people on the air that were not licensed, that had no
ability to do what they said they were going to do," he said. "If
they had just done a small degree of research, they would have been
able to find that . . . and they could have kept them off the
airwaves."
Prison sentence, history of fraud
Go Public's investigation found that the men alleged to be behind
Trans-Atlantic Direct, Singer and Sevilla, have a history of theft
and investment fraud in the U.S. -- long before allegedly targeting
Canadian investors.
In 2000, the United States Commodity Futures Trading Commission
(CFTC) found that Singer committed fraud while part-owner of
another Florida-based investment company, Lexus Financial Group. In
that case, 90 per cent of investors lost money, according to public
documents.
In the early 2000s, Sevilla was sentenced to four years in a
Florida prison for eight grand theft convictions. During that
period, he was also ordered to stop running an investment scam in
that state after the CFTC took him to court. Sevilla is currently
wanted in Florida after failing to report to his probation
officer.
'Moral obligation' to be reliable
According to Ward, what's now happening in Canada may have been
avoided if the media organizations that aired the segments had done
a better job of vetting who they put on air, and had been clear
with listeners about which programs are paid advertising and which
are news.
Disclaimers are often confusing, he said, especially if the tone of
the programs are newsy.
"There's great responsibility when you're dealing especially with
financial information," Ward said. "There is a moral obligation to
do as much as you possibly can to make sure the information is
reliable and truthful."
He said he'd like to see media companies clearly disclosing online
their relationships with the people and businesses appearing on
their programming.
Radio stations silent with listeners
Conrad said her favourite radio programs ultimately went silent on
the topic of Trans-Atlantic Direct, without ever explaining why
Price and Schwartz were no longer on air.
"I'm really disappointed. They have an obligation, even just to be
a good human being. Why has nobody over there done something? And
that's where I think they need to be held accountable," she said.
Hanstke tried to get answers from her local station and said she
was told that someone from Bell Media's legal department would call
her back -- but that call never came.
It's been more than two years since each woman invested their
money, and both say they're still working to dig themselves out
from under the loss.
NOTE: According to CBC's journalistic standards and practices,
those appearing on CBC News programs are not allowed to promote a
specific financial product or solicit business either for
themselves or a financial company. [GN]
TRANSNATIONAL FOODS: Young Suit Over Deceptive Marketing Dismissed
------------------------------------------------------------------
In the case, RENEE YOUNG, Plaintiff, v. TRANSNATIONAL FOODS, INC.,
Defendant, Case No. 18-cv-04651-EMC (N.D. Cal.), Judge Edward M.
Chen of the U.S. District Court for the Northern District of
California granted the Defendant's Motion to Dismiss for lack of
subject matter jurisdiction.
Young purchased Pampa EVOO, a product of Defendant Transnational
Foods. The Defendant sells and labels this product as "Extra
Virgin Olive Oil." However, the Plaintiff argues that Pampa EVOO
is not actually extra virgin olive oil, and she would not have
purchased the product but for the misleading labeling. The
Plaintiff and the class members will not purchase the Pampa EVOO
product in the future, although they would like to do so, unless
and until the Defendant takes corrective action.
She brings a class action for: (1) violation of California Civil
Code section 1750, et seq. California Consumer Legal Remedies Act
("CLRA"); (2) violation of California Business and Professional
Code sections 14500, et seq. California's False Advertising Law;
(3) California Business and Professional Code sections 17200, et
seq. Unlawful, Fraudulent and Unfair Business Practices. All of
the Plaintiff's claims arise from the Defendants labeling Pampa
EVOO as extra virgin olive oil even though it is her contention
that it is not actually extra virgin olive oil.
The Defendants seek dismissal arguing the Court lacks subject
matter jurisdiction because the Plaintiff has not met the amount in
controversy requirement for Class Action Fairness Act ("CAFA"), the
Plaintiff lacks standing to seek injunctive relief, and she failed
to state a claim for purposes of Federal Rules of Civil Procedure 8
and 9(b).
On Jan. 17, 2019, the Court heard arguments from both parties on
the Defendant's motion. During the hearing, a question was raised
as to the amount of the Defendant's sales in California of Pampa
EVOO. The Court allowed the Plaintiff jurisdiction discovery with
respect to the Defendant's sales in California. The Defendant
filed a supplemental declaration from Juan Iribarne the Chief
Financial Officer of Transnational Foods. The declaration states
that from Jan. 1, 2014 to July 2018, Transnational's sales of Pampa
EVOO to its customers in the state of California totaled $87,283.
Judge Chen agrees with the Defendant that the Plaintiff has not met
the $5 million CAFA amount in controversy requirement for subject
matter jurisdiction. As stated in the Court's minute order on Jan.
17, 2019, the Court finds that the Plaintiff does have standing to
seek injunctive relief under Davidson v. Kimberly-Clark Corp. The
Plaintiff has stated that she will not purchase the product but
would like to if corrective action was taken. For this reason, she
has standing to seek injunctive relief, and the Court considers
this in the calculation of the amount in controversy.
However, the Defendant's sales in California amount to only $87,283
covering a period of over three and a half years. The Judge does
not find support for the Plaintiff potentially receiving punitive
damages greater than a single digit multiplier. Further, it is
extremely unlikely the Court would award the Plaintiff attorneys'
fees exceeding the 25% benchmark. Finally, the Plaintiff has not
shown that the value of the injunctive relief would cover the
substantial difference to achieve an amount of in controversy
exceeding five million-dollars as required by CAFA.
For the reasons he stated, on the record, and in the Jan. 17,
2019-minute order, Judge Chen granted the Defendant's Motion to
Dismiss for lack of subject matter jurisdiction. He finds that the
Defendant's Motion to Dismiss for failure to state a claim upon
which relief may be granted is moot. The Order disposes of Docket
No. 24.
A full-text copy of the Court's Feb 19, 2019 Order is available at
https://is.gd/wAc2TM from Leagle.com.
Renee Young, individually and on behalf of all others similarly
situated, Plaintiff, represented by Victoria Knowles --
vknowles@pacifictrialattorneys.com -- Pacific Trial Attorneys &
Scott J. Ferrell -- sferrell@pacifictrialattorneys.com -- Pacific
Trial Attorneys.
Transnational Foods, Inc., a Florida corporation, Defendant,
represented by Tambry Lynette Bradford -- bradfordt@pepperlaw.com
-- Pepper Hamilton LLP.
TRISTAR PRODUCTS: DOJ Seeks Reversal of Class Action Settlement
---------------------------------------------------------------
Andrew Keshner, writing for MarketWatch, reports that turns out,
federal prosecutors don't like coupons.
Justice Department lawyers are asking an appellate court to reverse
a class-action settlement that gives consumers $72.50 coupons for
pressure cookers, but pays millions of dollars to lawyers.
Observers say the DOJ objections, filed earlier in February, signal
a more aggressive approach from federal lawyers in intervening in
these consumer-focused cases. To do so, the pro-business Trump
administration has dusted off a decade-old statute scrutinizing
class-action lawsuits. But it's not clear whether the motivation is
to protect consumers or to stick it to plaintiffs' lawyers.
The lower court "abused its discretion in finding the lopsided
settlement here to be fair, reasonable and adequate," according to
the Sixth Circuit filing in Cincinnati, Ohio. It called the
sparsely-requested $72.50 credits "essentially worthless" for
cookers that would then require class members spend over $100 of
their own money. People could get a similar cooker on Amazon for
about $70, the filing added. Meanwhile, the $2.3 million in legal
fees destined for the plaintiffs' lawyers, determined by the court,
were out of line, the brief said.
Plaintiffs' lawyers previously countered the legal fees were
reasonable, and the settlement was a valid outcome for the 3.2
million class members. None of the actual class members complained
about the outcome, they noted.
Since Trump took office, federal lawyers have objected in two known
consumer-focused class-action lawsuits, twice in this case and once
with another settlement deal offering $2 coupons for wine. Before
the Trump era, the last time DOJ weighed in on these type of cases
was a decade ago, former Justice Department lawyer Rachel Brand
said last year.
Class-action cases are powerful ways for consumers to strike at
businesses that, they claim, have done them wrong with faulty
products, deceptive tactics and other market missteps. At the same
time, businesses have long complained the lawsuits can be misused
to advance frivolous claims while letting plaintiffs' lawyers cash
in.
Over the years, the Supreme Court has been tightening rules on
these types of cases. Unrelated to the pressure cooker case, the
top court is currently deliberating whether Google's $8.5 million
settlement for alleged privacy violations is fair.
The case of the pressure cookers and their alleged safety problems
This case started with Power Pressure Cooker XL models sold by
Tristar Products, the same company selling wares like the Ab Roller
and the Jack LaLanne Fusion juicer.
Problems with the cookers allegedly caused "scalding hot contents
to erupt," according to the 2016 lawsuit filed in Ohio federal
court. Among the alleged injuries, one Brunswick, Ohio man suffered
second- and third-degree burns on St. Patrick's Day from spewed
corned beef, cabbage and potatoes, the filing said.
Tristar Products never admitted liability or conceded any sort of
defect in the cookers, court filings showed.
The sides fought the case, right up until the trial's first day,
when they reached a tentative deal. Tristar Products and the
class-action lawyers didn't talk legal fees until after they had a
deal in place, transcripts said. Judge James Gwin, a District Judge
of the U.S. District Court for the Northern District of Ohio,
decided the fee award.
When the Justice Department and the state attorneys general were
informed of the deal, 18 states and the feds criticized the coupons
and legal fees. Gwin rejected their arguments.
Roger Colaizzi, an attorney for Tristar Products at the Washington,
D.C.-based law firm Venable, told MarketWatch the pressure cookers
were "very safe, deliver great value and convenience to consumers."
The trial evidence spoke to those points and the settlement's
coupon and extra warranty had "great value," Mr. Colaizzi said.
Judge Gwin weighed all that "in determining the settlement was fair
and reasonable," according to Mr. Colaizzi. "There was not a single
objection from consumers in the class, which is pretty
significant."
Greg Coleman, a lawyer representing the class-action members, could
not be reached for comment.
"Settlements such as this one raise serious fairness concerns by
awarding class members only illusory relief while the lawyers
bringing the lawsuit are awarded substantial fees," said Principal
Deputy Associate U.S. Attorney General Jesse Panuccio in a
statement. "We will continue to scrutinize such proposed
settlements to ensure they comport with the law and are fair,
reasonable, and adequate."
It's unusual for the Justice Department to oppose class-action
deals
The Justice Department and state attorneys general say a
little-used law gives them the right to weigh in on these cases:
the Class Action Fairness Act of 2005. The law, enacted under the
administration of George W. Bush, said the agencies had to be told
about proposed settlements at least 90 days before they were
finalized in court so they could have a chance to weigh in if they
wanted. That's how DOJ and the state attorneys general found out
about the Tristar Products deal.
Gerald Maatman Jr., a partner at Seyfarth Shaw defending companies
in class actions, said it was rare for federal lawyers to give
their two cents on a case "until Trump's Department of Justice
started doing it." Other administrations "did not parachute in to
oppose class action settlements," he said.
Brand said in a speech last year that was due at least in part
federal lawyers not having enough time to file objections.
During her tenure, the department received about 700 notices
annually, but by the time the paperwork got through mail room
screenings and precautionary procedures and lawyers started
checking them out, many objection deadlines had blown past.
"It was an almost comical story of government bureaucracy," said
Brand, then associate attorney general. "We've begun to fix that
process, and are already in a better position to review
settlements."
From Mr. Maatman's perspective, the motivation for DOJ's objections
wasn't "so much that the Department of Justice is worried about
consumers. What they are trying to fight is where they believe
class-action plaintiffs lawyers are getting too much money and
class-action members are not getting anything of value."
Brian Fitzpatrick, a Vanderbilt Law School professor, said the
motivations didn't matter because while class action lawyers and
companies might want to push through an agreed-upon deal at the end
of a case, it was beneficial to have the federal government
sometimes raising questions. "Our judges, as talented as they are,
are accustomed to ruling in an adversarial process."
Jonathan Selbin, of Lieff, Cabraser, Heimann & Bernstein,
represents consumers in class action cases and said "the idea that
this administration is doing anything -- including the objections
in this case -- to protect consumers is patently ridiculous. They
are doing everything they can to reduce consumer protections that
already exist."
Mr. Selbin said it was "fair to wonder if any of this has anything
at all to do with protecting consumers as opposed to going after
lawyers and protecting big companies."
Speaking generally, Mr. Selbin said misused class-action cases were
"few and far between" -- and judges knew how to spot them. Justice
Department lawyers hadn't questioned Mr. Selbin's settlements, but
he said that he would "welcome that scrutiny because we don't do
settlements like that."
What the federal government "should not be doing — and I have
seen this -- is coming in and trashing the merit of the underlying
consumer claim," said Mr. Selbin. "It is not for the federal
government to object to a settlement because they don't like the
underlying state-law legal claim." [GN]
UBIQUITI NETWORKS: Defendants' Response Due March 22
----------------------------------------------------
Ubiquiti Networks, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on February 8, 2019, for the
quarterly period ended December 31, 2018, that defendants' response
to the consolidated amended complaint is currently due March 22,
2019.
On February 21, 2018, a purported class action, captioned Paul
Vanderheiden v. Ubiquiti Networks, Inc. et al., No. 18-cv-01620
(the "Vanderheiden Action"), was filed in the United States
District Court for the Southern District of New York against the
Company and certain of its current and former officers.
The Vanderheiden Action complaint alleges that the defendants
violated Sections 10(b) and 20(a) of the Securities Exchange Act of
1934 and Rule 10b-5 promulgated thereunder by making false and/or
misleading statements, including purported overstatements of the
Company's online community user engagement metrics and accounts
receivable.
On February 28, 2018 and March 13, 2018, substantially similar
purported class actions, captioned Xiya Qian v. Ubiquiti Networks,
Inc. et al., No. 18-cv-01841 (the "Qian Action") and John Kho v.
Ubiquiti Networks, Inc. et al., No. 18-cv-02242 (the "Kho Action",
together with the Vanderheiden Action and the Qian Action, the
"Class Actions"), respectively, were filed in the United States
District Court for the Southern District of New York.
On October 24, 2018, the court consolidated the Class Actions and
appointed lead plaintiff and lead counsel (the "Consolidated Class
Action"). Plaintiff filed its Consolidated Amended Complaint on
December 24, 2018. Defendants' response to the Consolidated Amended
Complaint is currently due on March 22, 2019.
Ubiquiti Networks said, "While the Company believes that the
Consolidated Class Action is without merit and plans to vigorously
defend itself, there can be no assurance that the Company will
prevail. The Company cannot currently estimate the possible loss or
range of losses, if any, that it may experience in connection with
this litigation."
Ubiquiti Networks, Inc. develops networking technology for service
providers, enterprises, and consumers. It focuses on three
principal technologies, including high-capacity distributed
Internet access, unified information technology, and consumer
electronics for home and personal use. The company was formerly
known as Pera Networks, Inc. and changed its name to Ubiquiti
Networks, Inc. in 2005. Ubiquiti Networks, Inc. was incorporated in
2003 and is headquartered in New York, New York.
UMG RECORDINGS: Waite et al. Sue over Copyright Infringement
------------------------------------------------------------
JOHN WAITE, an individual; JOE ELY, an individual, and on behalf of
all others similarly situated, the Plaintiffs, vs. UMG RECORDINGS,
INC., a Delaware corporation, and DOES 1 through 10, the
Defendants, Case No. 1:19-cv-01091 (S.D.N.Y., Feb. 5, 2019), seeks
to recover actual damages and/or statutory damages and obtain
injunctive relief to prevent further wrongful conduct by
Defendants.
According to the complaint, since the first Copyright Act was
enacted in 1790, that Act and the several successive copyright
statutes have always had a feature which allows a second chance for
authors (or their heirs) to reclaim copyrights from unwise grants
made by authors early on in their careers, close to the creation of
the works. While the particular features of those laws, and the
length of the terms and statutory scheme of the terminations
involved, have changed and evolved, the strong "second chance"
concept has remained. In fact, the very first act, the Copyright
Act of 1790, borrowed that concept from the English Statute of
Anne, enacted in 1709, the first copyright law. The theme continued
in the Copyright Acts of 1831, 1870, and 1909.
Likewise, section 203 of the Copyright Act of 1976 modified the Act
of 1909 substantially, but continued the policy with full force.
According to the Congressional Record, the purpose of the statute
was to protect authors and their heirs from "the unequal bargaining
position of authors" in dealing with unpublished works, because of
"the impossibility of [an author] determining [his or her] work's
prior value until it has been exploited." H.R.Rep. No. 94-1476, at
124 (1976). Section 203 provides that authors (a term that includes
both songwriters and recording artists) may terminate grants of
copyright ownership 35 years after the initial grant, generally
computed from the date of the publication of those works subject to
the grant.
But while the Copyright Act confers upon authors the valuable
"second chance" that they so often need, the authors of sound
recordings, in particular, who have attempted to avail themselves
of this important protection have encountered not only resistance
from many record labels, they have been subjected to the stubborn
and unfounded disregard of their rights under the law and, in many
instances, willful copyright infringement.
Waite, Ely, and hundreds of other recording artists have served
Notices of Termination upon UMG pursuant to the provisions set
forth in 17 U.S.C. section 203, but UMG has routinely and
systematically refused to honor them. These refusals are made, in
every instance, on similar legal grounds, the first and foremost of
which is UMG's position that the sound recordings created by
recording artists under contract with UMG (or its affiliated or
predecessor companies) are "works made for hire," and, therefore,
not part of the subject matter of section 203. UMG claims that the
recordings are works made for hire because of contractual language
that is found in every UMG recording agreement. As a result of
UMG's policy, UMG has refused to acknowledge that any recording
artist has the right to take over control of the sound recordings,
or enter into an agreement with a different label for the
exploitation of recordings, after the effective date of
termination. In many instances, UMG has continued to exploit the
recordings after the effective date, thereby engaging in willful
copyright infringement of the United States copyright in those
recordings. As a result of UMG's actions, UMG has effectively
stymied any chance that the class plaintiffs have of entering into
a new agreement with a third party, or even exploiting the
recordings themselves, as is their right. As a result, these
actions by UMG have effectively destroyed the very salability of
the post-termination rights in the recordings that the Copyright
Act expressly guarantees.
On account of UMG's repeated, methodical, and willful copyright
infringement, actual and statutory damages are the remedy. For
those recordings for which the associated Notice of Termination has
not reached its effective date of termination, the proper remedy is
declaratory relief. With regard to both copyright infringement and
all recordings for which a Notice of Termination has been sent to
UMG, injunctive relief, addressing and preventing UMG's lawless
behavior, is warranted. Therefore, Plaintiffs bring this class
action for copyright infringement, declaratory relief, and
injunctive relief, on behalf of themselves and all similarly
situated recording artists who have sent Notices of Termination to
UMG with an effective date of termination on or after January 1,
2013, the lawsuit says.[BN]
Attorneys for Plaintiffs:
David C. Kistler, Esq.
Gregory M. Bordo, Esq.
BLANK ROME LLP
The Chrysler Bldg., 405 Lexington Avenue
New York, NY 10174-0208
Telephone: (212) 885-5000
E-mail: Kistler@BlankRome.com
GBordo@BlankRome.com
Perry@BlankRome.com
- and -
Maryann R. Marzano, Esq.
Evan S. Cohen, Esq.
COHEN MUSIC LAW
1180 South Beverly Drive, Suite 510
Los Angeles, CA 90035-1157
Telephone: (310) 556-9800
E-mail: mmarzano@cohenmusiclaw.com
esc@cohenmusiclaw.com
UNITED KINGDOM: Dismissal of Epperson Suit With Prejudice Endorsed
------------------------------------------------------------------
Magistrate Judge Erica P. Grosjean of the U.S. District Court for
the Eastern District of California recommended that the case, CHRIS
JONATHON EPPERSON, Plaintiff, v. BRITISH EMBASSY, et al.,
Defendants, Case No. 1:18-cv-01432-DAD-EPG (E.D. Cal.), be
dismissed with prejudice.
On Oct. 17, 2018, Plaintiff Epperson, appearing pro se and in forma
pauperis, commenced the action by filing a complaint alleging
claims against the British Embassy, the Foreign Commonwealth
Office, the Ministry of Foreign Affairs of Russia, James Wilson,
Charles Pinckney, Pierce Butler, and Geoffrey Binney. The Court
screened the Complaint and found it fails to state any cognizable
claim. The Court gave Plaintiff 30 days to file an amended
complaint or to notify the Court that he wishes to stand on the
Complaint, subject to findings and recommendations to the district
judge consistent with the screening order. It also warned the
Plaintiff that failure to file an amended complaint or to notify
the Court that he wishes to stand on the Complaint could result in
the dismissal of the case. The 30-day period has expired, and the
Plaintiff has not filed an amended complaint or notified the Court
that he wishes to stand on the Complaint.
Magistrate Judge Grosjean recommended that the action be dismissed,
with prejudice, for the Plaintiff's failure to state a claim upon
which relief may be granted, failure to comply with a court order,
and failure to prosecute. The Clerk of Court be directed to close
the case.
These findings and recommendations are submitted to the district
judge assigned to the case, pursuant to the provisions of Title 28
U.S.C. Section 636(b)(l). Within 21 days after being served with
these findings and recommendations, the Plaintiff may file written
objections with the Court. Such a document should be captioned
"Objections to Magistrate Judge's Findings and Recommendations."
The Plaintiff is advised that failure to file objections within the
specified time may result in the waiver of rights on appeal.
A full-text copy of the Court's Feb. 15, 2019 Findings &
Recommendations Order is available at https://is.gd/ZUs2fH from
Leagle.com.
Chris Epperson, Plaintiff, pro se.
UNITED STATES: More Insurers Win Suits v. HHS Over Unpaid CSRs
--------------------------------------------------------------
Katie Keith, writing for Health Affairs, reports that On February
14 and 15, two judges at the Court of Federal Claims held that
insurers are entitled to unpaid cost-sharing reduction (CSR)
payments. One of these lawsuits, brought by Common Ground
Healthcare Cooperative, is a class action for unpaid CSRs, meaning
the decision applies to the 91 insurers who are part of that class.
The other lawsuits were brought by L.A. Health Care Plan, Maine
Community Health Options, and Community Health Choice. In some
cases, these insurers are entitled to unpaid CSRs from both 2017
and 2018, even though many insurers opted to use "silver loading"
to make up for unpaid CSRs.
Two insurers previously won their lawsuits against the Trump
administration for unpaid CSRs; those cases have already been
appealed to the Federal Circuit. To my knowledge, every CSR case
that has been decided so far has been won by insurers. As Judge
Thomas C. Wheeler put it in his decision in L.A. Health Care Plan,
insurers "should not be left ‘holding the bag' for taking our
government at its word."
Background
Many regular readers are familiar with the long history of
litigation over CSR payments, which were intended to compensate
insurers for reducing deductibles, copayments, and coinsurance for
marketplace enrollees with incomes below 250 percent of the federal
poverty level, as required by the Affordable Care Act (ACA). This
history dates back to November 2014 when the Republican-led House
of Representatives sued the Department of Health and Human Services
(HHS). The House argued that CSR payments to insurers were improper
because HHS did not have an explicit congressional appropriation to
make them. In 2016, Judge Rosemary M. Collyer of the District of
Columbia agreed with the House, concluding that HHS could not
constitutionally reimburse insurers for CSRs without such an
appropriation. This litigation, now known as House v. Azar, was
resolved in May 2018.
In October 2017, the Trump administration cited Judge Collyer's
ruling to justify an abrupt decision to stop making CSR payments to
insurers. The administration's decision was challenged by
Democratic state attorneys general in a separate lawsuit in
California; that case was dismissed in July 2018 at the states'
request. Minnesota and New York sued, separately, over the impact
of this decision on their Basic Health Programs, a case that is
also on its way to being resolved.
At the same time, insurers began suing the federal government for
unpaid CSRs in the Court of Federal Claims. These lawsuits began as
early as November 2017 when Common Ground Healthcare Cooperative,
an insurer based in Wisconsin, amended its class action lawsuit on
risk corridor payments to additionally contest the government's
failure to make CSR payments. This was followed by separate
challenges from several other insurers.
To date, two insurers -- Montana Health CO-OP and Sanford Health
Plan -- have succeeded in their challenges. Both cases were decided
by Judge Elaine D. Kaplan of the Court of Federal Claims, who
concluded that insurers are entitled to unpaid CSRs. Section 1402
of the ACA, she held, obligates the federal government to make CSR
payments, and Congress's failure to explicitly appropriate funds
for the payments did not relieve the government of that obligation.
The federal government appealed both cases to the Federal Circuit,
and the cases were consolidated on appeal.
In her decisions, Judge Kaplan cited a recent decision from the
Federal Circuit concluding that a similar, but separate, provision
of the ACA obligated the government to make risk corridors payments
to insurers. In this decision -- known as Moda Health Plan -- the
Federal Circuit concluded that this obligation was suspended by
subsequent appropriations riders requiring net risk corridors
payments to be budget neutral. These riders have no counterparts
regarding CSR payments. After being denied a rehearing by the full
Federal Circuit, the four insurers in Moda Health Plan asked, on
February 4, the Supreme Court to hear their appeal on risk
corridors. Those requests are here, here, and here.)
Even as the two CSR cases were appealed to the Federal Circuit,
other lawsuits -- including a class action -- continued. Some, but
not all, had been stayed pending the Federal Circuit's decision in
Moda Health Plan. The challenge brought by Common Ground, noted
above, was certified as a class action in April 2018. The class
includes any insurer that offered a qualified health plan in 2017
or 2018 and did not receive a CSR payment to account for the amount
it paid out in CSRs to enrollees. As of September 2018, 91 insurers
had opted in to the class action lawsuit.
The Latest Decisions: Insurers Entitled To CSR Payments
I am aware of at least 12 separate lawsuits filed by insurers
against HHS for unpaid CSRs; this includes the class action lawsuit
with 91 insurers. These recent decisions mean that fully half of
these lawsuits, the only ones that have been decided so far, have
been won by the insurers. Three judges on the Court of Federal
Claims—Judge Margaret M. Sweeney, Judge Thomas C. Wheeler, and
Judge Kaplan—have concluded that insurers are entitled to unpaid
CSRs.
Of the four new decisions, three were before Judge Sweeney. She
held a consolidated hearing on the challenges brought by Common
Ground, Maine Community Health Options, and Community Health Choice
on February 14 and issued the three decisions on February 15. Each
decision reaches the same conclusion: Insurers are entitled to
unpaid CSRs for 2017 and 2018 under Section 1402 of the ACA) even
in the absence of an explicit appropriation for CSRs. The fourth
decision was issued on February 14 by Judge Wheeler, in which he
concludes that L.A. Health Care Plan was entitled to about $6
million in unpaid CSRs owed for the 2017 plan year.
Section 1402 Requires CSR Payments
Across the four cases, both judges conclude that Section 1402 of
the ACA sets forth an "unambiguous" mandate that HHS should make
timely CSR payments to insurers. Both judges cite the decision
reached by Judge Kaplan in the Montana Health CO-OP case as well as
Moda Health Plan. Judge Sweeney noted that the government's
obligation of paying CSRs "fits logically within the statutory
scheme" of the ACA and that the plain language, structure, and
purpose of the ACA reflect Congress' intent to require HHS to make
timely CSR payments to insurers. Judge Wheeler notes that Section
1412 of the ACA (which permits CSR payments to be made in advance
but leaves the payment schedule to the discretion of the Secretary
of HHS), combined with implementing regulations, "act together to
commit" the government to making full CSR payments; this is further
bolstered by the fact that the government made 45 consecutive
payments prior to October 2017.
Lack Of An Explicit Appropriation Is Irrelevant
Neither judge was swayed by the government's argument that insurers
are not entitled to CSR payments because of the lack of an explicit
appropriation. First, the government can create a liability without
the means to pay for it: the lack of an explicit appropriation, on
its own, does not invalidate the government's obligation to make
CSR payments. As Judge Wheeler puts it, "Whether a statute creates
a commitment and whether there are funds available to honor that
commitment are two independent inquiries."
Second, it is irrelevant that Congress included an explicit funding
mechanism to fund premium tax credits but not CSRs. Judge Wheeler
states that an alternate interpretation would override the
statute's plain meaning. Judge Sweeney notes that fact that there
is not similar language for CSRs does not tell us what Congress'
intent was and could have several possible explanations, including
being an oversight. Both judges note that Congress did not include
the language "subject to availability of appropriations" in Section
1402, which it could have to explicitly condition the payment of
CSRs on appropriations.
Third, the courts are unpersuaded that the lack of CSR
appropriations language in subsequent appropriations bills means
that CSRs should go unpaid. Both judges cite the proposition that
the mere failure of Congress to appropriate funds without otherwise
changing substantive law cannot, by itself, invalidate the
government's obligation under law. Here, no appropriation expressly
or impliedly disavowed the CSR payment obligation. Appropriations
bills were merely silent, which is insufficient to show that
Congress intended to suspend CSR payment obligations.
The courts make a comparison to risk corridors and the decision
reached in Moda Health Plan. There, Congress passed appropriations
riders to fully prohibit funds from being used to make risk
corridors payments. Congress never adopted a similar rider for CSR
payments, even while CSR payments were being made under both the
Obama and Trump administrations.
Fourth, the lack of appropriation or specific damages remedy does
not limit insurers from recovering unpaid CSRs. Insurers can
recover from the Judgment Fund since the claim for unpaid CSRs
arises from a statute that mandates the payment of money damages in
the event of its violation. Insurers' ability to silver load is not
evidence that Congress did not want to provide a remedy for the
failure to make CSR payments. As Judge Sweeney puts it, the fact
that insurers discovered a way to mitigate their CSR losses "does
not mean that Congress intended this result." Increases to premium
tax credits and CSRs are not, and were not designed by Congress, to
substitute for each other.
HHS Breached Implied-In-Fact Contracts
In the suits brought by Community Health Choice, Maine Community
Health Options, and L.A. Health Care Plan, Judges Sweeney and
Wheeler additionally conclude that the failure to make CSR payments
was a breach of an implied-in-fact contract between HHS and the
insurers. These insurers had argued that 1) the promise of CSR
payments induced them to offer marketplace coverage and, by
offering these plans, they accepted the government's offer for CSR
payments; and 2) the parties agreed that the insurers would provide
CSR reductions to eligible enrollees in the "qualified health plan
issuer agreement." This is, to my knowledge, the first analysis of
the contractual claims for CSRs; Judge Kaplan had not reached these
issues in her prior decisions.
Both courts reject the government's argument that the ACA and its
regulations did not "speak in terms of contract" and thus could not
be construed to form an implied-in-fact contract. In taking a
holistic view of the circumstances, HHS and the insurers did form
an implied-in-fact contract for unpaid CSRs. Both judges made a
comparison to Moda Health Plan where the Federal Circuit found that
the risk corridors program did not have sufficient "trappings" of a
contractual arrangement to warrant a contractual claim. However,
the risk corridors program and CSR payments are different because
CSRs are less of an incentive program than risk corridors and more
of a traditional quid pro quo exchange that gives rise to a
contractual relationship. Judge Wheeler notes that Sections 1402
and 1412, along with their implementing regulations, use
"unequivocal promissory language" that would lead insurers to
reasonably believe they would be repaid under the CSR program.
(L.A. Health Care Plan had also argued that the government's
refusal to make CSR payments constituted a taking of its property
under the Takings Clause of the Fifth Amendment. Although he
concludes that the insurer had a vested property right in CSRs,
Judge Wheeler rejects this claim because this property has not been
taken and L.A. Health Care Plan can still enforce the contract.)
Silver Loading Is Irrelevant
Judge Sweeney concludes that insurers are entitled to recover
unpaid CSRs for both 2017 and 2018. Recall that CSR payments were
ended on October 12, 2017, meaning insurers did not receive CSR
payments beginning with the last quarter of that year. For 2018,
many (though not all) insurers opted to silver load to mitigate the
impact of unpaid CSRs. (More information about "silver loading" and
its impact on premiums and subsidies is available here.) While
acknowledging the government's concern for "an unwarranted windfall
for insurers" if they are entitled to both higher premium tax
credits (as a result of silver loading) and unpaid CSRs for 2018,
Judge Sweeney is unconvinced that insurers should not be allowed to
recover these payments and concludes that insurers can recover
unpaid CSRs for 2018.
What Happens Next?
In the three lawsuits in her court, Judge Sweeney directed the
parties to file a joint status report by February 28 that should
include the amount due in unpaid CSRs for 2017 and 2018. If the
parties cannot provide the amounts due for 2018, they should
suggest a deadline and indicate whether a judgment limited to only
the CSRs for 2017 would be appropriate. Because Maine Community
Health Options only requested unpaid CSRs for 2017, Judge Sweeney
asked the insurer to indicate what further proceedings should
occur; on February 15, they requested permission to file an amended
complaint to include nearly $36 million in unpaid CSRs for 2018.
L.A. Health Care Plan also intends to amend its complaint to
reflect a total of $64 million in unpaid CSRs for 2017 and 2018;
Judge Wheeler asked the parties to submit a joint status report on
or before March 14.
The federal government will presumably appeal the decisions but a
ruling may come more quickly in the consolidated cases already
before the Federal Circuit brought by the Montana Health CO-OP and
Sanford Health Plan. At the same time, the Supreme Court may decide
to hear the risk corridors case in Moda Health Plan: a decision in
that case could play a key role in whether insurers are entitled to
unpaid CSRs.
These rulings could give HHS an additional reason to prohibit the
practice of silver loading by suggesting that insurers could
unfairly silver load and recover for unpaid CSRs at the same time.
HHS has indicated that it will not prohibit silver loading for the
2020 plan year but has asked for comments on whether to do so for
plan year 2021. Banning silver loading and instead requiring
insurers to sue to reclaim unpaid CSRs would, however, be highly
inefficient. This could result in ongoing litigation and would
undermine the value of premium tax credits for millions of
consumers. Indeed, it has taken these insurers more than one year
to recover unpaid CSRs from 2017 alone. If anything, the government
should reassess its position on CSR funding to avoid paying higher
premium tax credits and unpaid CSRs from the Judgment Fund.
At the same time, these are not the only lawsuits over unpaid CSRs.
Some of these lawsuits—including a significant challenge brought
by Molina for nearly $160 million—remain stayed by Judge Wheeler;
both parties requested the stay until after a final, non-appealable
judgment is issued in Moda Health Plan. This means the Molina case
will not proceed until after the Supreme Court decides whether to
hear Moda Health Plan, or issues a decision if it takes the case.
Other lawsuits, such as those brought by Guidewell Mutual Holding
Corporation (which includes Blue Cross and Blue Shield of Florida,
Florida Health Care Plan, and Health Options), Health Alliance
Medical Plans, and Blue Cross Blue Shield of Vermont are proceeding
and awaiting additional briefing or a hearing. The lawsuit brought
by Guidewell Mutual Holding Corporation is the largest CSR lawsuit
that I am aware of; the company seeks a total of about $223 million
for unpaid CSRs from 2015, 2016, and 2017. This does not even
include unpaid CSRs for 2018. At the same time, additional lawsuits
have been filed by insurers such as Harvard Pilgrim Health Care and
Noridian Mutual as recently as December 2018. [GN]
UNITED STATES: New York Court Denies TRO Request in Moreno Suit
---------------------------------------------------------------
In the case, Amado de Jesus MORENO; Nelda Yolanda REYES; Jose
CANTARERO ARGUETA; Haydee AVILEZ ROJAS, Plaintiffs, v. Kirstjen
NIELSEN, Secretary, U.S. Department of Homeland Security, in her
official capacity; U.S. DEPARTMENT OF HOMELAND SECURITY; L. Francis
CISSNA, Director, U.S. Citizenship and Immigration Services, in his
official capacity; U.S. CITIZENSHIP AND IMMIGRATION SERVICES,
Defendants, Case No. 18-CV-1135 (RRM) (E.D. N.Y.), Judge Roslynn R.
Mauskopf of the U.S. District Court for the Eastern District of New
York denied Moreno's request for a temporary restraining order.
In 2000, Moreno, a citizen of El Salvador, entered the United
States without inspection. On March 9, 2001, El Salvador was
designated for Temporary Protected Status ("TPS"). He applied
for, and was granted, TPS later that year and has maintained that
status ever since. In 2011, Moreno applied for and was granted
advance parole so that he could travel to El Salvador. He returned
to the United States on July 26, 2011, and was inspected and
paroled into the United States as a TPS Holder.
On Jan. 30, 2013, Moreno's employer, Jersey Lynne Farms Inc., filed
an immigrant visa petition on Moreno's behalf with U.S. Citizenship
and Immigration Services ("USCIS"). USCIS granted that petition on
Nov. 13, 2014, making Moreno eligible for an immigrant visa as a
"skilled worker" under Section 203(b)(3)(A)(i) of the Immigration
and Nationality Act ("INA"). In January 2015, Moreno filed an
application to adjust his status to that of a lawful permanent
resident.
Moreno's application for adjustment of status was denied on April
7, 2017. USCIS ruled that Moreno was ineligible for adjustment of
status because he had failed to maintain lawful immigration from
the time of his first entry into the United States. Moreno then
filed a request to reopen this decision, arguing that because he
had been paroled into the United States in 2011, he satisfied §
1255(k)'s requirements and was exempt from the unlawful presence
bar to adjustment found in 8 U.S.C. Section 1255(c).
In a decision dated July 14, 2017, USCIS denied Moreno's request to
reopen, ruling that reentry into the United States based on an
advanced parole is not considered an admission into the United
States. The USCIS reasoned that because Moreno initially entered
the United States without inspection, he was not eligible for the
exemption set forth in INA Section 245(k), 8 U.S.C. Section
1255(k).
On Feb. 22, 2018, Moreno and three other individuals -- Nelda
Yolanda Reyes, Jose Cantarero Argueta, and Haydee Avilez Rojas --
commenced the class action against the U.S. Department of Homeland
Security ("DHS"); DHS Secretary Kirstjen Nielsen; USCIS; and USCIS
Director Francis Cissna. As amended, the Plaintiffs' pleading
alleges that pursuant to a policy of refusing to find that a grant
of TPS constitutes an 'inspection and admission' for purposes of
adjustment of status, USCIS denies applications for adjustment of
status filed by current TPS holders who were not 'inspected and
admitted' other than through the grant of TPS. The amended
complaint specifically identifies that "policy" as a portion of
volume 7, part B, chapter 2(A)(5) of the USCIS Policy Manual.
The policy is consistent with the holding in Serrano v. U.S. Atty.
Gen., but inconsistent with the holding in other cases, including
Flores v. U.S. Citizenship & Immigration Servs., and Ramirez v.
Brown, which hold that the plain language of 8 U.S.C. Section
1254a(f)(4) requires that TPS holders be deemed "inspected and
admitted" for purposes of adjustment of status under 8 U.S.C.
Section 1255(a).
The Plaintiffs seek to compel USCIS to abandon its reliance on
Serrano, and to adopt a policy consistent with Flores and Ramirez.
Specifically, they seek an order declaring 1) that the Defendants'
policy of refusing to find that a grant of TPS constitutes an
'inspection and admission' for purposes of adjustment of status and
all adjustment decisions issued based upon that policy are contrary
to 8 U.S.C. Section 1254a(f)(4); and 2) that all the Plaintiffs and
proposed class members have been 'inspected and admitted' for
purposes of 8 U.S.C. Section 1255(a) pursuant to their grant of
TPS.
The Plaintiffs also request injunctive relief: a prohibitory
injunction directing the Defendants to immediately cease applying
their policy that a grant of TPS does not constitute an 'inspection
and admission' for purposes of 8 U.S.C. Section 1254a(f)(4), and a
mandatory injunction directing the Defendants to find that,
pursuant to 8 U.S.C. Section 1254a(f)(4), the Plaintiffs and
proposed class members were 'inspected and admitted' for purposes
of their adjustment of status applications.
On Jan. 24, 2019, Moreno filed a motion for a temporary restraining
order or, in the alternative, a preliminary injunction. In his
motion, Moreno states that Jersey Lynne Farms is ceasing operations
on March 30, 2019. He represents that he will no longer be
eligible for adjustment of status when he loses his job and will
have to begin the lengthy, multi-step process of applying for an
immigrant visa all over again. Accordingly, Moreno seeks a
mandatory injunction directing the Defendants to reopen and
re-adjudicate his application for adjustment of status prior to
March 30, 2019.
With respect to the re-adjudication, Moreno seeks mandatory
injunctive relief that differs from the relief requested in the
amended complaint. He requests an order directing the Defendants
to (i) treat him as being in lawful nonimmigrant status for
purposes of adjustment of status under 8 U.S.C. Section 1255; (ii)
treat him as having been inspected and admitted for the purposes of
adjustment of status under all of 8 U.S.C. Section 1255; and (iii)
find that his grant of Temporary Protected Status satisfies the
lawful admission requirement of 8 U.S.C. Section 1255(k).
In their response to Moreno's motion, the Defendants point out that
USCIS' approval of Moreno's petition for an immigrant visa will not
be revoked solely because the petitioning employer went out of
business. They argue that if Moreno obtains a new offer of
employment from a different U.S. employer in the same or similar
occupational classification as his employment with Jersey Lynne
Farms and his application for adjustment of status is reopened, his
new employer will not need to re-commence the process of
petitioning for an immigrant visa. Rather, Moreno will only have
to file an additional document: Supplement J to Form I-485.
Judge Mauskopf finds that the undisputed facts in the case suggest
that Moreno may be unable to establish causation or redressability.
Since Moreno was not denied adjustment of status based on the
policy challenged in the amended complaint, causation appears to be
lacking.
In addition, Moreno may be unable to establish redressability
because the relief requested in the amended complaint would not
redress Moreno's injury. USCIS never expressly considered the
question of whether Moreno met the "inspected and admitted or
paroled" requirement of Section 1255(a) because it found that he
was ineligible for adjustment of status under that subsection.
Accordingly, an order declaring Moreno had been "inspected and
admitted for purposes of 8 U.S.C. Section 1255(a) pursuant to his
grant of TPS, or an injunction directing USCIS to so find, would
not affect USCIS's decision.
Similarly, an order declaring that the Defendants' policy of
refusing to find that a grant of TPS constitutes an 'inspection and
admission' for purposes of adjustment of status and all adjustment
decisions issued based upon that policy are contrary to 8 U.S.C.
Section 1254a(f)(4), and enjoining that policy, would be
superfluous since, under other portions of volume 7, part B,
chapter 2(A)(5) of the USCIS Policy Manual, Moreno met the
inspected and admitted or inspected and paroled requirement" by
virtue of having been inspected and paroled into the United States
following his 2011 trip.
Indeed, the Judge notes that the relief Moreno is requesting in the
instant motion is subtly different from the injunctive relief
requested in the amended complaint. Moreno now requests a
mandatory injunction directing that USCIS treat him has having been
'inspected and admitted' for the purposes of adjustment of status
under all of 8 U.S.C. Section 1255, and find that his grant of
Temporary Protected Status satisfies the 'lawful admission'
requirement of 8 U.S.C. Section 1255(k). This change in the
injunctive relief requested suggests that Moreno himself recognizes
that the injunctive relief sought in the amended complaint would be
insufficient to redress his claims.
For these reasons, Judge Mauskopf denied Moreno's request for a
TRO. Moreno's reply papers will address the standing issue raised.
His time to reply is extended from Feb. 18, 2019, to Feb. 22,
2019. The Judge granted the Defendants leave to file a sur-reply,
which will address only the standing issue. That sur-reply, if
any, will be filed on or before Feb. 28, 2019.
A full-text copy of the Court's Feb. 15, 2019 Memorandum and Order
is available at https://is.gd/Sj9v7H from Leagle.com.
mado de Jesus Moreno, Nelda Yolanda Reyes, Jose Cantarero Argueta &
Haydee Avilez Rojas, Plaintiffs, represented by Kristin Arina
Macleod-Ball -- clearinghouse@immcouncil.org -- American
Immigration Council, Leila Kang, Northwest Immigrant Rights
Project, Mary Kenney, American Immigration Council, pro hac vice,
Matt Adams, Northwest Immigrant Rights Project & Trina A. Realmuto,
American Immigration Council.
Kirstjen Nielsen, U.S. Department of Homeland Security, L. Francis
Cissna & U.S. Citizenship and Immigration Services, Defendants,
represented by Joseph Anthony Marutollo, U. S. Attorney's Office,
Sheldon A. Smith, U.S. Attorney's Office for the Eastern District
of NY & Ubaid Ul-Haq, U.S. Department of Justice Civil Division.
Commonwealth of Massachusetts, Amicus, represented by Jonathan B.
Miller, Office of the Attorney General.
Asian Americans Advancing Justice - AAJC, Amicus, represented by
Eric Hui-Chieh Huang, Quinn Emanuel Urquhart & Sullivan LLP.
UQM TECHNOLOGIES: Poston Files Securities Class Action in Colorado
------------------------------------------------------------------
Blake Poston, On Behalf of Himself and All Others Similarly
Situated, Plaintiff, v. UQM Technologies, Inc., Donald W.
Vanlandingham, Joseph R. Mitchell, Stephen J. Roy, Joseph P.
Sellinger, and John E. Sztykiel, Defendants, Case No. 1:19-cv-00648
(D. Colo., March 5, 2019) is a class action on behalf of the public
stockholders of the Defendant against UQM and the members of its
Board of Directors for their violations of the Securities Exchange
Act of 1934 and U.S. Securities and Exchange Commission ("SEC").
On January 21, 2019, UQM issued a press release announcing UQM and
Danfoss had entered into an Agreement and Plan of Merger dated
January 21, 2019 to sell UQM to Danfoss. Under the terms of the
Merger Agreement, each UQM stockholder will receive $1.71 in cash
for each share of UQM they own (the "Merger Consideration"). The
Proposed Transaction is valued at approximately $100 million,
including the assumption of UQM's debt. On February 11, 2019, UQM
filed a Schedule 14A Preliminary Proxy Statement with the SEC.
The Proxy Statement, which recommends that UQM stockholders vote in
favor of the Proposed Transaction, omits and/or misrepresents
material information, asserts the complaint. The failure to
adequately disclose such material information constitutes a
violation of the Exchange Act as UQM stockholders need such
material information in order to cast a fully-informed vote or make
an informed appraisal decision in connection with the Proposed
Transaction, the complaint says.
Plaintiff is, and has been, the owner of UQM common stock.
Defendant UQM is a Colorado corporation with its principal place of
business located at 4120 Specialty Place, Longmont, Colorado
80504.[BN]
The Plaintiff is represented by:
Richard A. Acocelli, Esq.
WEISSLAW LLP
1500 Broadway, 16th Floor
New York, NY 10036
Phone: (212) 682-3025
Facsimile: (212) 682-3010
Email: racocelli@weisslawllp.com
- and -
Melissa A. Fortunato, Esq.
BRAGAR EAGEL & SQUIRE, P.C.
885 Third Avenue, Suite 3040
New York, NY 10022
Phone: (212) 308-5858
Fax: (212) 486-0462
Email: fortunato@bespc.com
US IT SOLUTIONS: Fails to Pay for All Hours Worked, Robichaud Says
------------------------------------------------------------------
PATRICIA ROBICHAUD, Individually and on Behalf of All Others
Similarly Situated, the Plaintiff vs. US IT SOLUTIONS, INC., the
Defendant, Case No. 4:19-cv-00100-JM (E.D. Ark., Feb. 7, 2019),
alleges that the Defendant did not pay Plaintiff for hours worked
that Defendant classified as "non-billable" hours, such as the time
Plaintiff spent communicating with Defendant regarding previous
late paychecks. The Defendant failed to pay and has yet to pay to
Plaintiff her last paycheck after her employment with the Defendant
ended around November 15, despite Plaintiff making lawful demand
upon Defendant that it do so both within and after the seven days
following Plaintiff's last day of employment.[BN]
Attorneys for Plaintiff:
Chris Burks, Esq.
Josh Sanford, Esq.
SANFORD LAW FIRM, PLLC
One Financial Center
650 South Shackleford, Suite 411
Little Rock, AR 72211
Telephone: (501) 221-0088
Facsimile: (888) 787-2040
E-mail: Chris@sanfordlawfirm.com
Josh@sanfordlawfirm.com
UXIN LIMITED: Araujo Hits Share Drop from Discontinued Perks
------------------------------------------------------------
Raul Araujo, on behalf of himself and 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. 650613/2019, (N.Y. Sup., January 31,
2019), seeks statutory, compensatory and rescissory damages
resulting from violations of Sections 11 and 15 of the Securities
Act of 1933.
Uxin is a Chinese used car e-commerce platform. On June 28, 2018,
it filed with the U.S. Securities and Exchange Commission its IPO
Prospectus, which forms part of the Registration Statement, and
sold 25,000,000 American Depository Shares (ADS) at a price of
$9.00 each. Uxin failed to state that the company was likely to
stop providing complementary services such as inspections but
instead, would connect consumers to dealers who would provide such
complementary services. Its business was materially adversely
impacted. On November 20, 2018, Uxin's share price closed at $4.50
per ADS, a decline of $4.50, or 50%, from the IPO price of $9.00
per ADS and it has since fallen further.
Araujo acquired Uxin ADS during its IPO and lost upon corrective
disclosures. [BN]
The Plaintiff is represented by:
Aaron L. Brody, Esq.
Michael J. Klein, Esq.
STULL, STULL & BRODY
6 East 45th Street
New York, NY 10017
Telephone: (212) 687-7230
Facsimile: (212) 490-2022
Email: abrody@ssbny.com
mklein@ssbny.com
VISIONSTREAM: Shine Lawyers Seek Support for Class Action
---------------------------------------------------------
Tom Pullar-Strecker, writing for Stuff.co.nz, reports that top E tu
union official has questioned whether former Chorus boss Mark
Ratcliffe would be the right person to lead the Transport Agency in
the wake of investigations into the treatment of subcontractors
building Chorus' ultrafast broadband network.
E tu national industry organiser Joe Gallagher said Mr. Ratcliffe
-- who headed Chorus between 2007 when it was a division of Telecom
until 2017 -- was the architect of an "unsustainable" model for
building UFB that had been "open to widespread exploitation".
Mr. Ratcliffe serves as a director of Crown-owned Housing
New Zealand and was appointed interim chief executive of the
Transport Agency (NZTA) in December following management changes
that coincided with claims poor enforced of regulations by the NZTA
were responsible for almost 20,000 vehicles needing warrant of
fitness retests.
Mr. Gallagher said he found it fascinating that Mr. Ratcliffe would
be involved in a government job.
"I would seriously question his long-term appointment to that role
given his history in the telco sector where he has not shown any
pattern of tripartite working relationships or engagement with
unions in any shape or form.
"NZTA is already in a bit of a mess so I would question whether he
would be the captain to steer that ship through the troubled
waters."
The Labour Inspectorate said in February that it expected to take
compliance action against 72 subcontracting firms that were
involved in the construction of Chorus' UFB network after last year
identifying widespread breaches of employment law last.
The breaches it uncovered included contracting firms failing to
maintain employment records, failing to pay employees' the minimum
wage and holiday entitlements, and failing to provide employment
agreements.
Visionstream, which is Chorus' largest contractor, has been
regarded as a strong proponent of the contracting model for
telecommunications work, under which workers driving "Chorus" vans
and hooking up broadband are mostly self-employed on piece rates.
Chorus appointed Visionstream to design and build the UFB network
in Auckland in 2009 and expanded the relationship in 2016.
Mr. Ratcliffe said when announcing the expanded partnership that
Visionstream's operating model had proven to be "very effective in
attracting new crews and lifting performance".
Visionstream's contract was again extended in 2018, by current
Chorus chief executive Kate McKenzie, to cover the construction of
the third tranche of the UFB network that will be completed in
2022.
Mr. Gallagher said Mr. Ratcliffe should have been aware of the
issues the Labour Inspectorate had uncovered while he was chief
executive of Chorus.
In October, Mr. Ratcliffe declined to discuss whether he was
surprised by the Labour Inspectorate's initial findings of subbie
exploitation, relaying via Chorus that he would not be commenting.
He did not respond to invitations to respond to Gallagher's
comments.
Australian law firm Shine Lawyers is seeking support for a class
action lawsuit against Visionstream and its subcontractors, after
its Auckland lawyer Tim Gunn argued thousands of workers had been
wrongly denied employment benefits and engaged as independent
contractors under "really horrendous conditions".
Chorus last year commissioned an independent review of employment
practices of businesses working on the UFB build and both it and
Visionstream are investigating largely separate allegations made by
a group of whistleblowers that included concerns workers were not
being paid correctly.
Visionstream confirmed on Feb. 12 that its New Zealand managing
director Andrew Todd would be stepping down but said that was not
related to any ongoing investigations.
NZTA chairman Michael Stiassny did not explicitly rule out
Mr. Ratcliffe being a candidate for the permanent role at the NZTA,
but said he had been appointed in an interim capacity until a
permanent chief executive was recruited and on board.
"Mark is a highly experienced chief executive with considerable
expertise in running critical national infrastructure. His previous
engagement with the unions was not specifically canvassed as part
of the appointment process," he said.
"My expectation is that the chief executive of the NZTA -- interim
or permanent -- will engage meaningfully and positively with all
stakeholders, including the unions."
A spokeswoman for Transport Minister Phil Twyford said he not been
consulted on the state sector appointment as this would have been
inappropriate. [GN]
VIZIO: April 29 Settlement Claim Form Filing Deadline Set
---------------------------------------------------------
Jason Mealey, writing for WJXT News4Jax, reports that if you own a
Vizio TV you could be owed some money. The company has agreed to
pay $17 million to end a class-action lawsuit. Although it does not
admit fault, the electronics manufacturer was accused of not
telling people their viewing habits would be tracked and shared
with third parties as a way to target advertisements.
To qualify, you must have purchased a Vizio smart TV and had it
connected to the internet between February 1, 2014, and February 6,
2017.
You do not need to provide a receipt, but you must submit a claim
form no later than April 29. Then, you could get up to $31. [GN]
VOLKSWAGEN GROUP: Court Trims Claims in 1st Amended Mandani Suit
----------------------------------------------------------------
In the case, MIKE MANDANI, et al., Plaintiffs, v. VOLKSWAGEN GROUP
OF AMERICA, INC., et al., Defendants, Case No. 17-cv-07287-HSG
(N.D. Cal.), Judge Haywood S. Gilliam, Jr. of the U.S. District
Court for the Northern District of California granted in part and
denied in part the Defendants' motion to dismiss the first amended
complaint.
On Dec. 22, 2017, Plaintiffs Madani, Eric Walley, Richard DeVico,
and Romsin Oushana brought the putative class action against
Defendants Volkswagen Group of America, Inc. ("VWGoA"), Volkswagen
AG ("VWAG"), and Audi AG ("Audi") for, among other things,
purported breaches of express and implied warranties, and
violations of various consumer protection laws based on allegedly
defective direct-shift gearbox ("DSG") transmissions in Defendants'
2010-2014 Audi S4, S5, S6, S7, and RS5 vehicles.
On April 23, 2018, the Plaintiffs filed a first amended complaint.
They seek to represent a nationwide class of all persons who own or
lease a Class Vehicle with a DSG transmission in the United States.
They also intend to seek certification of a subclass for purchasers
in California.
The Defendants designed, manufactured, and sold" 2010-2014 Audi S4,
S5, S6, S7, and RS5 vehicles with defective direct-shift gearbox
transmissions. The DSG transmissions purportedly cause sudden,
rough, unexpected shaking and violent jerking (commonly referred to
as 'juddering' or 'shuddering') when drivers attempt to accelerate
Class Vehicles and shift into 2nd, 3rd, or 4th gear and attempt to
decelerate." They are further alleged to "hesitate" to accelerate,
"surge while driving," and "cause a hard downshift or clunk when
drivers either slow down or accelerate at low speed."
As described by the Plaintiffs, the defective transmissions create
unreasonably dangerous situations while driving and increase the
risk of a crash as the driver is unable to accelerate the vehicle
when needed or as expected. Further, they contend that the
Defendants sold, leased, and continue to sell and lease the Class
Vehicles despite knowing of the transmission defect.
In September 2011, the Defendants issued the first of several
Technical Service Bulletins ("TSBs") related to issues with DSG
transmissions. That TSB noted clacking or knocking noises heard
from the drivetrain, but stated that such noises cannot be avoided
and are normal. In July 2013, they issued another TSB to remedy
rough gear changes, both when accelerating and when slowing down
and rough driving power disruptions. This TSB posited that such
"sporadic driving power disruptions" were "normal, and these issues
will decrease over time." In October 2019, the Defendants issued a
TSB that sought to resolve the issue, which recommended an improved
circuit board for the mechatronics unit.
According to the Plaintiffs, since at least October 2012, consumers
have continuously submitted consumer complaints to the Defendants
through the National Highway Traffic Safety Administration
("NHTSA") and Audi dealerships. As to the named Plaintiffs in
particular, each allege to have experienced symptoms of the DSG
transmission defect; three of the four sought assistance from Audi
dealerships; none have received any replacement or repairs that
adequately resolved the alleged defect.
The Plaintiffs bring nine causes of action: (1) Breach of Express
Warranty; (2) Breach of Implied Warranty of Merchantability; (3)
Violation of the Magnuson-Moss Warranty Act ("MMWA"); (4);
Violation of the Song-Beverly Consumer Warranty Act ("Song-Beverly
Act"); (5) Violation of the California Consumers Legal Remedies Act
("CLRA"); (6) Violation of the California Unfair Competition Law
("UCL"); (7) Declaratory Judgment; (8) Unjust Enrichment; and (9)
Equitable Injunctive and Declaratory Relief.
The Defendants move to dismiss all causes of action.
Judge Gilliam granted in part and denied in part the Defendants'
motion to dismiss. He granted the Defendants' motion as to all
claims except the Plaintiff Oushana's express warranty and MMWA
claims, but only against Defendant VWGoA. The Dismissal is with
leave to amend, except as otherwise stated.
Among other things, the Judge finds that all parties agree that
Plaintiffs' MMWA claim rises and falls with the express and implied
warranty claims. Thus, those Plaintiffs who have failed to state a
claim for breach of express or implied warranties also fail to
state a claim under the MMWA. Accordingly, he dismissed all MMWA
claims except as to Plaintiff Oushana against VWGoA.
Because Plaintiff Oushana has stated a viable claim for breach of
an express warranty, Oushana has "an adequate remedy at law." The
Judge thus dismissed Plaintiff Oushana's claims under the CLRA and
UCL. And because no amendment can cure this deficiency, Oushana's
CLRA and UCL claims are dismissed without leave to amend.
Any amended complaint must be filed within 28 days of the date of
the Order. The Judge set a case management conference ("CMC") for
April 16, 2019 at 2:00 p.m. He also directed the parties to meet
and confer before the CMC to discuss a proposed case schedule and
to submit a joint CMC statement by April 9, 2019.
A full-text copy of the Court's Feb. 15, 2019 Order is available at
https://is.gd/ZP2tdx from Leagle.com.
Mike Mandani & Eric Walley, Plaintiffs, represented by Gregory F.
Coleman -- greg@gregcolemanlaw.com -- Greg Coleman Law PC, pro hac
vice, Adam A. Edwards -- adam@gregcolemanlaw.com -- Greg Coleman
Law PC, pro hac vice, Crystal Gayle Foley -- cfoley@simmonsfirm.com
-- Simmons Hanly Conroy, Daniel Kent Bryson -- dan@wbmllp.com --
Whitfield Bryson Mason LLP, Deborah R. Rosenthal --
drosenthal@simmonsfirm.com -- Simmons Hanly Conroy LLC, John Hunter
Bryson -- hunter@wbmllp.com -- Whitfield Bryson Mason LLP, Lisa A.
White -- lisa@gregcolemanlaw.com -- Greg Coleman Law PC, pro hac
vice, Mark E. Silvey, Greg Coleman Law PC, pro hac vice & Mitchell
M. Breit -- mbreit@simmonsfirm.com -- SIMMONS HANLY CONROY, LLC.
Richard DeVico, on behalf of themselves and all others similarly
situated, Plaintiff, represented by Gregory F. Coleman, Greg
Coleman Law PC, pro hac vice, Adam A. Edwards, Greg Coleman Law PC,
pro hac vice, Crystal Gayle Foley, Simmons Hanly Conroy, Daniel
Kent Bryson, Whitfield Bryson Mason LLP, Deborah R. Rosenthal,
Simmons Hanly Conroy LLC, John Hunter Bryson , Whitfield Bryson
Mason LLP, Lisa A. White, Greg Coleman Law PC, pro hac vice, Mark
E. Silvey, Greg Coleman Law PC, pro hac vice & Mitchell M. Breit,
SIMMONS HANLY CONROY, LLC, pro hac vice.
Romsin Oushana, Plaintiff, represented by Crystal Gayle Foley,
Simmons Hanly Conroy, Deborah R. Rosenthal, Simmons Hanly Conroy
LLC & Gregory F. Coleman, Greg Coleman Law PC.
Volkswagen Group of America, Inc., Defendant, represented by Craig
Lee Winterman, Herzfeld & Rubin LLP, Jeffrey Chase --
JChase@herzfeld-rubin.com -- pro hac vice, Michael B. Gallub --
MGallub@herzfeld-rubin.com -- Herzfeld and Rubin, pro hac vice &
Homer B. Ramsey -- HRamsey@herzfeld-rubin.com -- Herzfeld Rubin.
Volkwagen AG & Audi AG, Defendants, represented by Craig Lee
Winterman, Herzfeld & Rubin LLP.
WALLICK PROPERTIES: Faces Class Action Over Apartment Fire
----------------------------------------------------------
Conor Morris, writing for The Athens News, reports that a
class-action lawsuit was filed in Athens County Common Pleas Court
against the owners of the formerly named Carriage Hill apartments
on Athens' South Side, seeking damages for tenants affected by the
major fire at that apartment complex in February 2017.
The hilltop complex off of Richland Avenue is now called Campus
Heights.
The lawsuit, filed by Athens lawyer Michael Fradin on behalf of two
former Ohio University graduate students, alleges that the property
owners failed to exercise "due care" and failed to follow
"appropriate fire-safety precautions and procedures" at the
apartment complex.
Representatives with Wallick Properties Midwest, in New Albany,
Ohio, did not return a request for comment left with that company's
main office on Feb. 15. The defendants include that company,
Wallick Properties LLC, The Wallick Companies LLC, Athens Carriage
Hill Apartments LLC, and Southeast Development Company #2
(apparently based in Columbus).
At least 36 units had to be vacated due to the Feb. 26, 2017 fire,
according to the suit. There were no reports of physical injuries
at the time of the fire, however.
"This mean at least 36 individuals or families had to relocate to
new living situations at their own expense," the suit reads.
The NEWS previously reported that one of the buildings, Building 12
-- the one that caught fire initially -- was a "total loss," with
30 units in it. At the time, The NEWS reported that 41 people had
been displaced by the fire.
The lawsuit notes public records showing that the city of Athens'
Code Enforcement Department issued a notice of violation to the
Carriage Hill Apartments owners after a Jan. 30, 2017 inspection.
That notice referenced at least five specific violations concerning
"smoke detectors/smoke alarms that were not in working condition
and at least one reference to the specific violation of a fire
extinguisher in need of inspection and tagging." All of the units
mentioned in that notice were in Building 12, the suit alleges,
including the unit where the fire is believed to have originated.
The apartment complex was due for a reinspection by the city of
Athens on Feb. 27, the day after the fire.
According to an Ohio Fire Marshal spokesperson referenced in the
suit, the fire was "due to electrical wires in the building."
The plaintiffs in the suit -- Mersa Raeisi and Elaheh Seyedalikhani
-- were busy preparing for a dinner party they had planned for
later in the day when they heard a loud and sudden "bang" in the
apartments below them.
A few minutes later, they heard another resident banging on doors
and shouting "FIRE!" in an attempt to alert people to the fire, the
suit reads.
"When plaintiffs opened the door to their apartment, the hallway
was full of smoke," the suit claims. "No smoke detector, smoke
alarm or sprinkler had gone off, despite the presence of
significant smoke throughout the building."
The suit notes the two plaintiffs did not hear "a single alarm
activate to warn residents," nor did they see a sprinkler system
activate as they left the building.
The suit alleges the two sustained roughly $22,000 in property
damage.
Being a class-action lawsuit, the complaint notes that the
plaintiffs in this case are bringing the action on behalf of
themselves and any "similarly situated tenants and residents that
suffered property damage, economic loss and displacement" caused by
the fire.
The suit essentially claims that the apartment complex's owners
failed to exercise "due care" in the maintenance and monitoring of
the complex, due to a lack of "proper, lawful and functional smoke
detection, smoke alarm, and sprinkler systems" in accordance with
Ohio law.
The initial complaint filed by Mr. Fradin concludes with a demand
for a jury trial in this case.
Multiple community organizations began fundraising efforts in the
wake of the fire in 2017. The NEWS at the time reported that the
apartment owners, Wallick Communities, had worked to find
"temporary housing" for the residents displaced in the fire. Many
of the residents whose units went up in flames lost most or all of
their personal possessions.
"That's my whole life in there," Teddi Conway told The NEWS back in
2017 outside the scene of the fire. "We were in Columbus and got
home to -- this."
A fourth-grade teacher in Marietta, Conway's weeping grew worse
when she realized she no longer owned clothes to wear to class, The
NEWS reported at the time.
Lawyer Fradin said that his clients and other residents of the
apartments suffered significantly due to the fire.
"In addition to losing their homes and belongings, my clients also
had their lives severely interrupted, personally, economically,
emotionally, and socially," Mr. Fradin wrote in an email. "They
bring this suit not only to recover for their own losses but also
to recover for the other tenants and residents of Carriage Hill who
suffered similar losses." [GN]
WALMART: Female Employees File Gender Discrimination Suits
----------------------------------------------------------
Michael Sainato, writing for The Guardian, reports that Walmart,
the world's largest retailer, is once again facing a raft of sexual
discrimination lawsuits -- eight years after the supreme court
blocked the company from facing the largest gender discrimination
case ever brought against an employer.
Nearly 100 workers filed gender discrimination lawsuits against
Walmart on 1 February, alleging denial of equal pay for retail
store and certain salaried management positions. The plaintiffs
include current Walmart employees and others who left the company
from the early to late 2000s.
Francine Radtka worked as a deli manager at Walmart in Manatee
County, Florida from 1995 to 2000. She expressed concerns to her
manager when she found out the other department managers, all men,
were being paid much more than she was, and ultimately quit after
she was forced to take on the duties of the bakery manager for
several months without any additional compensation.
"I went from working 50 hours a week to 80 to 90 hours a week. I
asked for a raise because I was working a whole other department
and the manager told me no," Ms. Radtka said. "The way Walmart
works, you work a salary, so if you work 80 hours or 50 hours, you
get the same amount of money."
Jenny Hicks worked at a Walmart in the same county from 1997 to
2000. "I trained a lot of managers, and I missed out on a lot of
raises," said Hicks. "I trained men who made more than me, told I
couldn't get a raise and told I couldn't get promoted yet I was
training them for the job I wanted to do."
Ms. Hicks left Walmart due to the lack of upward mobility made
available to her that was offered to male colleagues. She initially
started working at Walmart in hopes to climb up to management and
build a secure career to raise her family.
Ms. Radtka and Hicks are among the women now suing Walmart.
The lawsuits come in the wake of the 2011 US supreme court ruling
in the Walmart Stores v Dukes case. Originally filed in 2001, the
case received class certification in 2004 to represent 1.5 million
current and former female Walmart employees, the largest employment
class-action lawsuit in US history. The supreme court ruling did
not make a decision on the merit of the claims made in the lawsuit,
but rather it ruled the lawsuit was too large to constitute a class
action lawsuit. The decision has prompted the plaintiffs from that
case to file individual, regional lawsuits against Walmart.
"There was a culture at Walmart that existed way before 1999 and
continued on, and still continues on, and the circumstance that
women have been selected for various positions with no opportunity
for growth, and no opportunity for promotion," said Lindsey Wagner,
a Florida based attorney representing the plaintiffs in both
lawsuits. She said new hires who are women are often placed in
cashier roles or associates, while men are placed in departments
such as electronics or sporting goods where fast-track promotion
opportunities are available.
Ms. Wagner noted there are several more lawsuits likely to be filed
over the next several months. "These women are just a snapshot of
the women intent to file these claims around the country," she
said. "There are a multitude of lawyers working together to help
these women achieve justice."
Walmart recently changed their absence policy in response to
pressure from lawsuits and advocacy groups alleging pregnant
Walmart workers faced discrimination from the company. In July
2018, the national legal advocacy group A Better Balance filed a
class action lawsuit on behalf of Walmart workers who were
terminated due to pregnancy-related absences, challenging that the
company policy was violating New York state pregnancy accommodation
law.
"Under the new policy, pregnancy-related absences will be
authorized for pregnant workers, meaning workers won't accrue
points for these absences that could lead to termination" said Dina
Bakst, co-founder and co-president of A Better Balance. "The
lawsuit is still going on, we are in discovery."
In addition to lawsuits, Walmart workers have pushed for the
company to reveal the extent of pay gaps between men and women
workers. In 2015, Cyndi Murray, a founding member of the non-profit
worker advocacy group, Our Walmart, introduced a shareholder
resolution to require Walmart to disclose any disparities in pay
between male and female employees.
"As of now, they still have not come forward with that," said
Murray, who has worked at a Laurel, Maryland, Walmart store for 19
years. "You see higher positions given to men in our company and if
the women can do the job, I see no reason she should take home less
pay or be chastised for having children. It's still happening
today."
A Walmart spokesperson said in an email to the Guardian: "Walmart
has had a strong policy against discrimination in place for many
years and we continue to be a great place for women to work and
advance. The allegations from these plaintiffs are not
representative of the positive experiences that millions of women
have had working at Walmart. We've said all along that if someone
believes they have been treated unfairly, they deserve to have
their timely, individual claims heard in court. We plan to defend
the company against these claims." [GN]
WASHINGTON: Court Dismisses Belgau Suit over Union Dues
-------------------------------------------------------
In the case, MELISSA BELGAU, DONNA BYBEE, RICHARD OSTRANDER,
KATHRINE NEWMAN, MIRIAN TORRES, GARY HONC, and MICHAEL STONE,
Plaintiffs, v. JAY INSLEE, in his official capacity as governor of
the State of Washington, DAVID SCHUMACHER, in his official capacity
as Director of the Washington Office of Financial Management, JOHN
WEISMAN, in his official capacity as Director of the Washington
Department of Health, CHERYL STRANGE, in her official capacity as
Director of the Washington Department of Social and Health
Services, ROGER MILLAR, in his official capacity as Director of the
Washington Department of Transportation, JOEL SACKS, in his
official capacity as Director of the Washington Department of Labor
and Industries, and WASHINGTON FEDERATION OF STATE EMPLOYEES
(AFSCME, COUNSEL 28) a labor corporation, Defendants, Case No.
18-5620 RJB (W.D. Wash.), Judge Robert J. Bryan of the U.S.
District Court for the Western District of Washington, Tacoma, (i)
granted the State Defendants' and Union's Motions for Summary
Judgment, and (ii) denied the Plaintiffs' Cross-Motion for Summary
Judgment.
The Plaintiffs, who are Washington State employees, filed the
putative class action on Aug. 2, 2018, asserting that the
Defendants are violating their first amendment rights by deducting
union dues/fees from their wages even after the U.S. Supreme Court
issued Janus v. AFSCME, Council 31, on June 27, 2018, despite the
fact that the Plaintiffs have not clearly and affirmatively
consented to the deductions by waiving the constitutional right to
not fund union advocacy.
The Plaintiffs filed the putative class action (1) challenging the
constitutionality of RCW 41.80.100 and the CBA provisions related
to the deduction of membership fees, as a violation of their First
Amendment rights, (2) asserting that the Defendants conspired to
violate their constitutional rights, and (3) claiming that the
Union was unjustly enriched. The Plaintiffs seek declaratory and
injunctive relief as well as monetary damages, costs and attorneys'
fees.
The same day tge Plaintiffs filed their complaint, they filed a
motion seeking a temporary restraining order enjoining the
Defendants from deducting union dues/fees from the wages of any
Washington State employee in a bargaining unit listed in Appendix A
to the 2017-2019 Collective Bargaining Agreement ("CBA") for whom
the Defendants cannot provide clear and compelling evidence that he
or she clearly and affirmatively consented, on or after June 27,
2018, to the deduction of union dues by waiving his or her right to
not fund union advocacy, and from preventing Plaintiffs and state
employees from resigning union membership.
On Aug. 8, 2018, the Plaintiffs' motion for a temporary restraining
order was denied without prejudice. The Plaintiffs renewed their
motion to preliminarily enjoin the State from continuing to collect
Union membership dues because they had resigned from the Union.
That motion was denied on Oct. 11, 2018. It relied, in part, on
the reasoning in Fisk v. Inslee. After that Order from the Court
was issued, Fisk v. Inslee was affirmed on appeal in an unpublished
decision. In Fiske, the Plaintiffs raised the issue of whether
they had properly waived their First Amendment rights for the first
time; the Ninth Circuit declined to reach the question.
The parties now file cross motions for summary judgment and have
filed a "Stipulation Regarding Facts for Cross Motions for Summary
Judgment," which they assert contain the facts necessary to decide
the motions. Responses have been filed, as have replies.
Judge Bryan holds that all claims should be dismissed. Among other
things, he finds that (i) the only relief available to the
Plaintiffs from the State Defendants is prospective relief for the
alleged constitutional violations; (ii) the State Defendants have
not waived their Eleventh Amendment immunity as to claims for
prospective relief for constitutional violations against the State
Defendants; (iii) the Plaintiffs failed to show that they suffered
an injury in fact as a result of an advisory opinion given by the
Washington Attorney General; (iv) the Plaintiffs cannot now invoke
the First Amendment to wriggle out of their contractual duties; and
(v) the Plaintiffs' conspiracy claim, which is predicated on the
alleged First Amendment violations, also fails.
He also finds that the Plaintiffs' motion for summary judgment as
to their First Amendment claim against the Union should be denied
and the Union's motion for summary judgment should be granted.
There is no evidence that the claimed constitutional deprivation
here resulted from the exercise of some right or privilege created
by the state or by a rule of conduct imposed by the state or by a
person for whom the State is responsible. There is no evidence
that the Union could be described in all fairness as a state actor,
under any of the four tests. He says, the State Defendants'
obligation to deduct fees in accordance with the authorization
agreements does not transform decisions about membership
requirements that they pay dues for a year into state action. The
First Amendment claim against the Union should be dismissed.
Because the Plaintiffs' constitutional claim fails at the state
action stage, no decision is necessary on whether the initial or
2017 membership agreements violate the First Amendment.
The Plaintiffs make claims for unjust enrichment against the Union.
Both the Plaintiffs and the Union move for summary judgment on
this claim. The parties have a contractual relationship. The
Plaintiffs' unjust enrichment claims are related to the same matter
upon which they seek recovery. The unjust enrichment claims should
be dismissed.
Moreover, even if the parties did not have a written contractual
relationship, the Plaintiffs have failed to show that there is
sufficient evidence in the circumstances here that it would be
unjust for the Union to retain the dues. The Plaintiffs
acknowledge that as Union members they received benefits and rights
not available to non-members. Further, even after they announced
that they no longer wanted to be Union members, it is not unjust
for them to have to continue to pay dues for a limited time because
that is what they agree to. The Plaintiffs have failed to show
that the Union was unjustly enriched.
Based on the foregoing, Judge Bryan (i) granted the State
Defendants' and the Union's Motions for Summary Judgment; and
denied the Plaintiffs' Cross-Motion for Summary Judgment. He
dismissed the case. The Clerk is directed to send uncertified
copies of the Order to all the counsel of record and to any party
appearing pro se at said party's last known address.
A full-text copy of the Court's Feb. 15, 2019 Order is available at
https://is.gd/2esKAD from Leagle.com.
Melissa Belgau, Donna Bybee, Michael Stone, Richard Ostrander,
Miriam Torres, Katherine Newman & Gary Honc, Plaintiffs,
represented by James Gideon Abernathy --
jabernathy@freedomfoundation.com -- FREEDOM FOUNDATION & Sydney
Paige Phillips -- SPhillips@freedomfoundation.com -- FREEDOM
FOUNDATION.
Jay Inslee, in His Official Capacity as Governor of the State of
Washington, David Schumacher, in His Official Capacity as Director
of the Washington Office of Financial Management, John Weisman, in
His Official Capacity as Director of the Washington Department of
Health, Cheryl Strange, in Her Official Capacity as Director of the
Washington Department of Social Health and Services, Roger Millar,
in His Official Capacity as Director of the Washington Department
of Transportation & Joel Sacks, in His Official Capacity as Dir. of
Washington Department of Labor and Industries, Defendants,
represented by Alicia O. Young, ATTORNEY GENERAL'S OFFICE COMPLEX
LITIGATION DEPARTMENT & Kelly Woodward, WASHINGTON STATE ATTORNEY
GENERAL.
Washington Federation of State Employees, a labor corporation,
Defendant, represented by Edward Earl Younglove, III, YOUNGLOVE &
COKER PLLC, Matthew J. Murray -- mmurray@altshulerberzon.com --
ALTSHULER BERZON LLP, pro hac vice, P. Casey Pitts --
cpitts@altshulerberzon.com -- ALTSHULER BERZON LLP, pro hac vice &
Scott A. Kronland -- skronland@altshulerberzon.com -- ALTSHULER
BERZON LLP, pro hac vice.
WENDY'S COMPANY: Agreement Reached in Cyber Attack-Related Suit
---------------------------------------------------------------
The Wendy's Company said in its Form 8-K filing with the U.S.
Securities and Exchange Commission filed on February 13, 2019, that
the company has entered into a settlement agreement in the class
action lawsuits brought by financial institutions against the
Company related to the criminal cyberattacks.
On February 13, 2019, The Wendy's Company (the "Company") issued a
press release announcing that it has entered into a settlement
agreement that, if approved and finalized, would result in a
class-wide settlement of the class action lawsuits brought by
financial institutions against the Company related to the criminal
cyberattacks which targeted the point of sale systems of certain
Wendy's franchisees in 2015 and 2016.
The Company has now reached agreement in principle to resolve all
of the outstanding legal matters related to the 2015 and 2016
criminal cyberattacks. The Company expects to incur total costs
related to the criminal cyberattacks of approximately $33.5 million
(inclusive of the financial institutions settlement), of which
approximately $6 million was incurred in prior years.
The Wendy's Company, together its subsidiaries, operates as a
quick-service restaurant company. The company is involved in
operating, developing, and franchising a system of quick-service
restaurants specializing in hamburger sandwiches. The Wendy's
Company was founded in 1969 and is headquartered in Dublin, Ohio.
WHIRLPOOL CORP: 6th Cir. Flips Ruling on CBAs in Zino Suit
----------------------------------------------------------
In the case, JOSEPH ZINO, et al., Plaintiffs-Appellees, v.
WHIRLPOOL CORP., et al., Defendants-Appellants, Case Nos.
17-3851/17-3860 (6th Cir.), Judge Richard Allen Griffin of the U.S.
Court of Appeals for the Sixth Circuit (i) reversed the district
court's ruling that the collective-bargaining agreements ("CBAs")
vest retiree healthcare benefits at unalterable levels to all the
Plaintiffs, (ii) vacated the district court's judgment, and (iii)
remanded for proceedings consistent with his opinion.
The Plaintiffs built vacuum cleaners for the Hoover Co. at its
plant in Canton, Ohio, and retired between 1980 and 2007. Over the
years, a succession of CBAs governed employment terms and aspects
of retirement, including healthcare benefits.
A series of acquisitions left Whirlpool responsible for providing
healthcare benefits to the Plaintiffs. After the company announced
drastic reductions to those benefits, the Plaintiffs sued the
company and its Group Benefits Plan under the Labor Management
Relations Act and the Employee Retirement Income Security Act,
seeking a ruling that the CBAs vest retiree healthcare benefits at
unalterable levels.
The parties litigated amidst an earthquake in our case law in which
the Supreme Court upended our approach to interpreting the
relationship between a CBA's general durational clause and the
vesting or non-vesting of healthcare benefits. After both phases
of a bifurcated bench trial, but before the case law ceased its
transformation, the district court ruled that the CBAs vest retiree
healthcare benefits at unalterable levels to all the Plaintiffs.
The Defendants now appeal the district court's judgment in the
Plaintiffs' favor.
Judge Griffin explains that in Fletcher v. Honeywell Int'l, Inc.,
the Court held that a CBA's general durational clause applies to
healthcare benefits unless the CBA contains clear, affirmative
language indicating the contrary. In the instant case, he finds
that none of the CBAs contain such language; they state that the
company will pay insurance premiums in accordance with the terms
and conditions of the Welfare Benefit Plan, that retirees will have
the opportunity to continue healthcare coverage, or that coverage
for retirees "shall be" for "pre-65 coverage only." None of these
statements says clearly and affirmatively that the relevant general
durational clause doesn't control the termination of healthcare
benefits—whether by reference to the general durational clause
itself or by other language stating explicitly that healthcare
benefits continue past the relevant agreement's expiration. And
nowhere else in any of the CBAs does such language appear. This
means the general durational clauses control the termination of
Whirlpool's obligation to provide healthcare benefits to the
Plaintiffs, which means the obligation ended when the last CBA
expired.
At argument, the counsel for the Plaintiffs contended that Fletcher
doesn't control because no case to date has required a CBA to
contain clear vesting language in order to vest benefits. But, the
Judge holds that vesting language differs from language
disconnecting specific benefits from a general durational clause,
and Fletcher requires the latter, not the former. Put differently,
Fletcher outlines a threshold requirement: either a CBA says
clearly and affirmatively -- that is, unambiguously -- that its
general durational clause doesn't control the termination of
healthcare benefits, or the clause controls.
And this threshold requirement is just that: a threshold. If a CBA
does unambiguously disconnect certain benefits from the agreement's
general durational clause, the agreement might well vest those
benefits -- even absent clear vesting language. Or ambiguity as to
vesting might exist. To make the call, a court would need to
examine any "clues" that "spring from the CBA." Although th
ePlaintiffs point to a number of clues they say show that the
parties intended to vest healthcare benefits, those clues carry no
clout here because no CBA unambiguously disconnects healthcare
benefits from the governing general durational clauses. And that
means the CBAs unambiguously do not vest lifetime healthcare
benefits, which ends our inquiry.
For these reasons, Judge Griffin (i) reversed the district court's
ruling that the collective-bargaining agreements ("CBAs") vest
retiree healthcare benefits at unalterable levels to all the
Plaintiffs, (ii) vacated the district court's judgment, and (iii)
remanded for proceedings consistent with his opinion.
A full-text copy of the Court's Feb. 15, 2019 Order is available at
https://is.gd/BSUPzo from Leagle.com.
WORLDWIDE GOLF: Discriminates Disabled Persons, Murillo Alleges
---------------------------------------------------------------
JESSE MURILLO, JR., on behalf of himself and all others similarly
situated v. WORLDWIDE GOLF ENTERPRISES, INC., Case No. 19STCV06339
(Cal. Super., Los Angeles Cty., February 26, 2019), is brought on
behalf of the Plaintiff and a Class of mobility
impaired/wheelchair-bound persons, accusing the Defendant of
violating the anti-discrimination state statutes of California, the
Unruh Civil Rights Act and the California Disabled Persons Act.
Mr. Murillo contends that the Defendant's stores are not fully
accessible by the mobility-impaired.
Worldwide Golf Shops is a California corporation. The Defendant
operates at least 18 stores in California.[BN]
The Plaintiff is represented by:
Evan J. Smith, Esq.
BRODSKY & SMITH, LLC
9595 Wilshire Blvd., Suite 900
Beverly Hills, CA 90212
Telephone: (877) 534-2590
Facsimile: (310) 247-0160
E-mail: esmith@brodsky-smith.com
YALE UNIVERSITY: Female Students File Title IX Class Action
-----------------------------------------------------------
Lauren Cullen, Esq. -- lcullen@goodwin.com -- of Shipman & Goodwin
LLP, in an article for JDSupra, reports that three female students
recently filed a Title IX class action lawsuit seeking damages
against Yale University. They allege that the University subjected
them to a sexually hostile educational environment by failing to
take remedial action as women were sexually harassed and abused at
fraternity parties. The students also allege that they were denied
equal access to the social, professional, and economic resources
and opportunities that all-male fraternities provide.
Yale argues that they have limited ability to regulate fraternities
because they are unregistered, off-campus organizations. In
response, the lawsuit argues that fraternities "act as extensions
of Yale." In particular, Yale permitted the fraternities to use
university email addresses, bulletin boards, and campus facilities
for recruitment.
On June 15, 2012, the OCR issued a letter summarizing its
investigation into Yale. The letter devoted several pages to
fraternity-related harassment, including the 2010 DKE "no means
yes" chant. The letter noted, "Students interviewed expressed
concern about the 2010 fraternity incident being part of such a
chain of incidents to which the University did not effectively
respond."
This recent lawsuit reminds us of the unique challenges colleges,
universities, and independent schools face in regulating student
organizations and implementing the mandates of Title IX on campus.
In 2019, educational institutions will face increasing scrutiny
over their student life policies. [GN]
YELLOWSTONE CAPITAL: Dillon Suit Alleges TCPA Violation
-------------------------------------------------------
Todd Dillon, individually and on behalf of all others similarly
situated v. Yellowstone Capital, LLC, Case No. 7:19-cv-00040 (M.D.
N.C., February 28, 2019), is brought against the Defendant for
violation of the Telephone Consumer Protection Act.
The Plaintiff alleges that the Defendant placed two prerecorded
calls to his cellular phone without his prior written express
consent.
The Plaintiff Dillon is a Wilmington, North Carolina resident.
The Defendant Yellowstone is a provider of merchant cash advance
loans to business owners. The company is headquartered in Jersey
City, New Jersey. [BN]
The Plaintiff is represented by:
Ted Lewis Johnson, Esq.
P.O. Box 5272
Greensboro, NC 27435
Tel: (336) 252-8596
E-mail: tedlewisjohnson@tedlewisjohnson.com
Asbestos Litigation
ASBESTOS UPDATE: $14MM Asbestos Verdict Upheld
----------------------------------------------
Law360 reported that a South Carolina appeals court upheld a jury
verdict finding Celanese Corp. liable for a worker's exposure to
asbestos at one of the industrial chemical company's facilities.
ASBESTOS UPDATE: Asbestos Suits Changes Criticized
--------------------------------------------------
Columbia Missourian reported that the Missouri Senate debated the
impact of a proposal to place new requirements on those suing over
asbestos exposure during a hearing.
Bart Baumstark, a St. Louis attorney who handles asbestos injury
cases, said getting damages in court is the only justice that
victims can get sometimes with a chemical as harmful as asbestos.
"I can't tell you the number of clients we have represented who
live for that trial date because they wanted justice and they
wanted to know that their families are going to be taken care of,"
Baumstark said.
Currently, if a claimant were to seek compensation for
asbestos-related injuries or diseases, they could get damages in
two different ways. One is through trusts that were set up to
compensate victims of asbestos exposure by companies that had to
file bankruptcy in order to pay the damages; the other is through
separate litigation or civil cases for companies or products that
do not fall under those trusts.
Senate Bill 69 would require claimants to disclose claims they have
filed with asbestos trusts when that same claimant is making a
civil case, said the bill's sponsor, state Sen. Lincoln Hough,
R-Springfield.
Hough said that the bill would create fairness for not only the
claimant, but also the businesses associated with the litigation.
Hough and other supporters of the bill said that this could also
potentially speed up the process of asbestos litigations. But
others like Baumstark see this as an opportunity to further delay
the court dates of these cases, because it requires a delay of at
least 60 days after disclosure is made.
"What this bill does, is it allows (the court) to wait 60 days
before a trial, and with the way it is written now they will
absolutely get a continuance from that trial date. Now you senators
may say to yourselves, ‘What's one continuance?' That's the
difference between life and death for our clients. … Fifty
percent of our clients don't make it to their trial date,"
Baumstark said.
Mark Habbas, legislative affairs director for the Missouri State
Council of Firefighters, echoed some of Baumstark's concerns.
"Our men and women do get diagnosed with this, and when they do
it's a death sentence, and we believe this would delay their right
to damages," Habbas said.
Even though Habbas and Baumstark had their concerns about how this
bill would delay the legal process, others like Phil Goldberg and
Justin Arnold stood in support of the bill.
Goldberg, a managing partner at the Shook, Hardy and Bacon law
firm, said this bill could actually speed up the process, keep
claimants from double dipping and offer some protection to the
companies being sued.
"The issue before us today is one of fairness and justice. And in
asbestos, litigation courts are not able to achieve those basic
goals," Goldberg said.
Justin Arnold, from the Missouri Insurance Coalition, supported the
proposed bill as well and thought it could potentially speed up the
process based on success in other states.
"In Ohio, Wisconsin, Texas and a few other states, there have been
studies done that have looked at this . . . ., and they have found
that when the plaintiff discloses these trust claims at the outset,
there are no significant delays in litigation," Arnold said.
This is not the first time this bill, or a version of it, has been
heard. Fifteen other states have some version of this bill.
ASBESTOS UPDATE: Ashland Global Had 53,000 Open Claims at Dec. 31
-----------------------------------------------------------------
Ashland Global Holdings Inc. has 53,000 open asbestos-related
claims at December 31, 2018, according to the Company's Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarterly period ended December 31, 2018.
The Company states, "The claims alleging personal injury caused by
exposure to asbestos asserted against Ashland result primarily from
indemnification obligations undertaken in 1990 in connection with
the sale of Riley. The amount and timing of settlements and number
of open claims can fluctuate from period to period.
"Ashland has insurance coverage for certain litigation defense and
claim settlement costs incurred in connection with its asbestos
claims, and coverage-in-place agreements exist with the insurance
companies that provide substantially all of the coverage that will
be accessed.
"For the Ashland asbestos-related obligations, Ashland has
estimated the value of probable insurance recoveries associated
with its asbestos reserve based on management's interpretations and
estimates surrounding the available or applicable insurance
coverage, including an assumption that all solvent insurance
carriers remain solvent. A substantial portion of the estimated
receivables from insurance companies are expected to be due from
domestic insurers.
"At December 31, 2018, Ashland's receivable for recoveries of
litigation defense and claim settlement costs from insurers
amounted to US$139 million (excluding the Hercules receivable for
asbestos claims) compared to US$140 million at September 30, 2018.
During the June 2018 quarter, the annual update of the model used
for purposes of valuing the asbestos reserve and its impact on
valuation of future recoveries from insurers was completed. This
model update resulted in a US$5 million decrease in the receivable
for probable insurance recoveries."
A full-text copy of the Form 10-Q is available at
https://bit.ly/2Srboo0
ASBESTOS UPDATE: Contractor Fined $10K for Asbestos Violations
--------------------------------------------------------------
Fort Dodge Messenger reported that a contractor who failed to
properly deal with asbestos while renovating the former Kossuth
County Home has been ordered by a federal judge to serve probation
and pay more than $10,000 in fines and fees.
Steven A. Weaver, 61, of Algona, pleaded guilty to one count of
violating clean air work practice standards, according to the U.S.
Attorney’s Office for the Northern District of Iowa.
In November 2013, Weaver bought the former Kossuth County Home near
Algona with plans to turn it into an apartment building to be
called The Oasis.
According to the federal prosecutors, Weaver failed to thoroughly
inspect the building for asbestos prior to beginning the
renovation. He also hired workers to do the job who were not
licensed to remove asbestos.
In November 2014, the U.S. Environmental Protection Agency checked
the old county home building and determined that pipes in the
basement which had already been removed had contained asbestos and
were subject to regulation.
The U.S. Attorney’s Office reported that an EPA agent asked
Weaver if he had notified the Iowa Department of Natural Resources
before the renovation. When Weaver said he had not, the EPA agent
instructed him to report to that department. However, Weaver did
not do so, according to the prosecutors.
On Oct. 11, 2018, Weaver entered his guilty plea.
In the plea agreement, Weaver admitted he was an experienced
contractor and building inspector who had worked for various Iowa
communities since the early 2000s, the attorney’s office
reported.
While sentencing Weaver, U.S. District Court Chief Judge Leonard T.
Strand called the offense "aggravating" becasue Weaver had cut
corners on his own project and potentially put his workers at risk
of asbestos exposure.
Strand sentenced Weaver to two years of probation. He also ordered
Weaver to pay a $10,000 fine and prosecution costs of $1,573.35.
ASBESTOS UPDATE: EnPro Industries Has $13.1MM Insurance in 4Q
-------------------------------------------------------------
EnPro Industries, Inc. (NYSE: NPO) has collected US$13.1 million of
asbestos-related insurance recoveries in the fourth quarter,
bringing the total collections during the full year to US$29.9
million, the Company disclosed in a press release dated February
13, 2019.
A full-text copy of the Press Release of EnPro Industries, Inc.
dated February 13, 2019 is available at https://bit.ly/2tESrEl
ASBESTOS UPDATE: Former Shipyard Worker Appeals Asbestos Diagnosis
------------------------------------------------------------------
The Northern Echo reported that a former shipyard worker whose lung
cancer diagnosis has been linked to asbestos exposure is calling on
his old workmates to come forward and help him gain answers
regarding his illness.
Charles Orr, 79, from Sunderland, who is commonly known as Vernon,
developed a strong cough in 2016 and after the problems persisted
he sought medical advice from his GP.
After tests and treatment, doctors then went on to suggest that the
condition could be linked to contact with asbestos.
Following the news, Mr Orr instructed specialist asbestos-related
disease lawyers at Irwin Mitchell to investigate his illness and
help him gain answers as to whether it may be linked to his working
life.
As part of their ongoing work, the legal experts are now appealing
for information from anyone who may be able to shed light on the
conditions that Mr Orr would have faced during his time working
for: Smiths Dock Co Ltd in North Shields from September 1955 to
October 1960, as well as for a short spell in 1963; Middle Dock Co
Ltd in South Shields from August 1965 to August 1982 and A&P Ltd in
Hebburn from 1989 up until his retirement in September 2004.
Anyone with information which may assist with this case is asked to
contact Rebecca Harron at Irwin Mitchell’s Newcastle office on
0191-279-0095 or email rebecca.harron@irwinmitchell.com
ASBESTOS UPDATE: Hercules LLC Had $276MM Reserve at Dec. 31
-----------------------------------------------------------
Ashland Global Holdings Inc. disclosed in its Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarterly
period ended December 31, 2018, that wholly-owned subsidiary
Hercules LLC had total asbestos reserve of US$276 million at
December 31, 2018.
The Company states, "Hercules has liabilities from claims alleging
personal injury caused by exposure to asbestos. Such claims
typically arise from alleged exposure to asbestos fibers from resin
encapsulated pipe and tank products which were sold by one of
Hercules' former subsidiaries to a limited industrial market. The
amount and timing of settlements and number of open claims can
fluctuate from period to period.
"From the range of estimates, Ashland records the amount it
believes to be the best estimate of future payments for litigation
defense and claim settlement costs, which generally approximates
the mid-point of the estimated range of exposure from model
results. Ashland reviews this estimate and related assumptions
quarterly and annually updates the results of a non-inflated,
non-discounted approximate 50-year model developed with the
assistance of Nathan. As a result of the most recent annual update
of this estimate, completed during the June 2018 quarter, it was
determined that the liability for Hercules asbestos-related claims
should be decreased by US$19 million. Total reserves for asbestos
claims were US$276 million at December 31, 2018 compared to US$282
million at September 30, 2018."
A full-text copy of the Form 10-Q is available at
https://bit.ly/2Srboo0
ASBESTOS UPDATE: Hercules LLC Had 12,000 Open Claims at Dec. 31
---------------------------------------------------------------
Ashland Global Holdings Inc. disclosed in its Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarterly
period ended December 31, 2018, that there are 12,000 open claims
filed against wholly-owned subsidiary Hercules LLC related to
asbestos matters at December 31, 2018.
The Company states, "Hercules has liabilities from claims alleging
personal injury caused by exposure to asbestos. Such claims
typically arise from alleged exposure to asbestos fibers from resin
encapsulated pipe and tank products which were sold by one of
Hercules' former subsidiaries to a limited industrial market. The
amount and timing of settlements and number of open claims can
fluctuate from period to period.
"For the Hercules asbestos-related obligations, certain
reimbursement obligations pursuant to coverage-in-place agreements
with insurance carriers exist. As a result, any increases in the
asbestos reserve have been partially offset by probable insurance
recoveries. Ashland has estimated the value of probable insurance
recoveries associated with its asbestos reserve based on
management's interpretations and estimates surrounding the
available or applicable insurance coverage, including an assumption
that all solvent insurance carriers remain solvent. The estimated
receivable consists exclusively of solvent domestic insurers.
"As of December 31, 2018, Ashland's receivable for recoveries of
litigation defense and claims costs from insurers with respect to
Hercules amounted to US$54 million. During the June 2018 quarter,
the annual update of the model used for purposes of valuing the
asbestos reserve and its impact on valuation of future recoveries
from insurers was completed. This model update resulted in a
decrease of US$14 million in the receivable for probable insurance
recoveries."
A full-text copy of the Form 10-Q is available at
https://bit.ly/2Srboo0
ASBESTOS UPDATE: HII Continues to Defend PI Claims at Dec. 31
-------------------------------------------------------------
Huntington Ingalls Industries, Inc. continues to defend itself
against asbestos-related claims alleging various injuries,
according to the Company's Form 10-K filing with the U.S.
Securities and Exchange Commission for the fiscal year ended
December 31, 2018.
The Company states, "HII and its predecessors-in-interest are
defendants in a longstanding series of cases that have been and
continue to be filed in various jurisdictions around the country,
wherein former and current employees and various third parties
allege exposure to asbestos containing materials while on or
associated with HII premises or while working on vessels
constructed or repaired by HII.
"The cases allege various injuries, including those associated with
pleural plaque disease, asbestosis, cancer, mesothelioma, and other
alleged asbestos related conditions. In some cases, several of
HII's former executive officers are also named as defendants. In
some instances, partial or full insurance coverage is available to
the Company for its liability and that of its former executive
officers.
"The cost to resolve cases during the years ended December 31,
2018, 2017, and 2016 was immaterial individually and in the
aggregate. The Company's estimate of asbestos-related liabilities
is subject to uncertainty because liabilities are influenced by
numerous variables that are inherently difficult to predict. Key
variables include the number and type of new claims, the litigation
process from jurisdiction to jurisdiction and from case to case,
reforms made by state and federal courts, and the passage of state
or federal tort reform legislation.
"Although the Company believes the ultimate resolution of current
cases will not have a material effect on its consolidated financial
position, results of operations, or cash flows, it cannot predict
what new or revised claims or litigation might be asserted or what
information might come to light and can therefore give no
assurances regarding the ultimate outcome of asbestos related
litigation."
A full-text copy of the Form 10-K is available at
https://bit.ly/2SwKxqn
ASBESTOS UPDATE: Owens-Illinois Defends 1,070 Lawsuits at Dec. 31
-----------------------------------------------------------------
Owens-Illinois, Inc. has 1,070 pending lawsuits at end of year
2018, according to the Company's Form 10-K filing with the U.S.
Securities and Exchange Commission for the fiscal year ended
December 31, 2018.
Owens-Illinois states, "From 1948 to 1958, one of the Company's
former business units commercially produced and sold approximately
US$40 million of a high-temperature, calcium-silicate based pipe
and block insulation material containing asbestos. The Company
sold its insulation business unit in April 1958. The Company
receives claims from individuals alleging bodily injury and death
as a result of exposure to asbestos from this product ("Asbestos
Claims"). Some Asbestos Claims are brought as personal injury
lawsuits that typically allege various theories of liability,
including negligence, gross negligence and strict liability and
seek compensatory and, in some cases, punitive damages.
"Predominantly, however, Asbestos Claims are presented to the
Company under administrative claims-handling agreements, which the
Company has in place with many plaintiffs' counsel throughout the
country ("Administrative Claims"). Administrative Claims require
evaluation and negotiation regarding whether particular claimants
qualify under the criteria established by the related
claims-handling agreements. The criteria for Administrative Claims
include verification of a compensable illness and a reasonable
probability of exposure to a product manufactured by the Company's
former business unit during its manufacturing period ending in
1958. Plaintiffs' counsel present, and the Company negotiates,
Administrative Claims under these various agreements in differing
quantities, at different times, and under a variety of conditions.
"The pending lawsuit figures do not include an estimate of
potential Administrative Claims that may be presented under a
claims-handling agreement due to the uncertainties around
presentation timing, quantities, or qualification rates. The
Company considers Administrative Claims to be "Filed" and
"Disposed" when they are accepted for payment.
"The lack of uniform rules in lawsuit pleading practice, technical
pleading requirement in some jurisdictions, local rules, and other
factors cause considerable variation in the specific amounts of
monetary damages asserted. In the Company's experience, the
monetary relief alleged in a lawsuit bears little relationship to
an Asbestos Claim's merits or its disposition value. Rather,
several variables, including but not limited to, the type and
severity of the asbestos disease, medical history, and exposure to
other disease-causing agents; the product identification evidence
against the Company and other co-defendants; the defenses available
to the Company and other co-defendants; the specific jurisdiction
in which the claim is made; the applicable law; and the law firm
representing the claimant, affect the value.
"The Company has also been a defendant in other Asbestos Claims
involving maritime workers, medical monitoring, co-defendants'
third-party actions, and property damage allegations. Based upon
its experience, the Company believes that these categories of
Asbestos Claims will not involve any material liability.
Therefore, they are not included in the description of pending or
disposed matters.
"Since receiving its first Asbestos Claim, as of December 31, 2018,
the Company in the aggregate has disposed of approximately 400,000
Asbestos Claims at an average indemnity payment of approximately
US$9,800 per claim. The Company's asbestos indemnity payments have
varied on a per-claim basis and are expected to continue to vary
considerably over time. Asbestos-related cash payments for 2018,
2017, and 2016 were US$105 million, US$110 million, and US$125
million, respectively. The Company's cash payments per claim
disposed (inclusive of legal costs) were approximately US$86,000,
US$83,000 and US$71,000 for the years ended December 31, 2018,
2017, and 2016, respectively."
A full-text copy of the Form 10-K is available at
https://bit.ly/2GQpX2K
ASBESTOS UPDATE: Owens-Illinois Has $602MM Liabilities at Dec. 31
-----------------------------------------------------------------
Based on a revised methodology, Owens-Illinois, Inc. has estimated
its asbestos-related liability to be US$602 million as of December
31, 2018, the Company disclosed in its Form 10-K filing with the
U.S. Securities and Exchange Commission for the fiscal year ended
December 31, 2018.
Owens-Illinois states, "From 1948 to 1958, one of the Company's
former business units commercially produced and sold approximately
US$40 million of a high-temperature, calcium silicate based pipe
and block insulation material containing asbestos. The Company
exited the insulation business in April 1958. The Company receives
claims from individuals alleging bodily injury and death as a
result of exposure to asbestos from this product ("Asbestos
Claims"). Some Asbestos Claims are brought as personal injury
lawsuits that typically allege various theories of liability,
including negligence, gross negligence and strict liability and
seek compensatory and, in some cases, punitive damages.
Predominantly, however, Asbestos Claims are presented to the
Company under administrative claims-handling agreements, which the
Company has in place with many plaintiffs' counsel throughout the
country ("Administrative Claims").
"Beginning with the initial liability of US$975 million established
in 1993, the Company has accrued a total of approximately US$5.0
billion through 2018, before insurance recoveries, for its
asbestos-related liability. The Company's ability to estimate its
liability has been significantly affected by, among other factors,
the volatility of asbestos related litigation in the United States,
the significant number of co-defendants that have filed for
bankruptcy, the inherent uncertainty of future disease incidence
and claiming patterns against the Company, the significant
expansion of the defendants that are now sued in the litigation,
and the continuing changes in the extent to which these defendants
participate in the resolution of cases in which the Company is also
a defendant.
"For many years, the Company has conducted an annual comprehensive
legal review of its asbestos-related liabilities and costs in
connection with finalizing its annual results of operations. In
May 2016, the Company revised its method for estimating its
asbestos-related liabilities in connection with finalizing and
reporting its restated results of operations for the three years
ended December 31, 2015. The revised method estimates the total
future costs for the Company's asbestos-related liability. Under
this method, the Company provides historical Asbestos Claims' data
to a third party with expertise in determining the impact of
disease incidence and mortality on future filing trends to develop
information to assist the Company in estimating the total number of
future Asbestos Claims likely to be asserted against the Company.
The Company uses this estimate, along with an estimation of
disposition costs and related legal costs, as inputs to develop its
best estimate of its total probable liability. The revised
methodology has led the Company to conclude that an
asbestos-related liability of US$602 million was required as of
December 31, 2018.
"The Company continues to believe that its ultimate
asbestos-related liability cannot be estimated with certainty. As
part of its future annual comprehensive legal reviews, the Company
will review its estimate of its total asbestos-related liability,
unless significant changes in trends or new developments warrant an
earlier review."
A full-text copy of the Form 10-K is available at
https://bit.ly/2GQpX2K
ASBESTOS UPDATE: Payout After Decades of Asbestos Exposure
----------------------------------------------------------
Ipswich Star reported that a former Suffolk firefighter has been
awarded "substantial damages" from the county council after being
exposed to asbestos over the course of his career.
Keith Jordan, a lifelong Ipswich resident, came into contact with
the harmful substance in unprotected conditions while tackling
power station and factory fires across the region between 1969 and
1992.
The 73-year-old, a former retained firefighter employed by Suffolk
County Council, has since fallen ill with pleural thickening – an
asbestos-related lung disease which causes chest pain and breathing
difficulties and can be a precursor to more serious conditions.
According to solicitors Ashtons Legal, Mr Jordan had to deal with
fires at commercial buildings constructed with large amounts of
asbestos, which would have been airborne during the fires and
contained within the debris.
The East Anglian firm claimed that breathing apparatus was not worn
routinely and neither Mr Jordan nor his colleagues were advised
that it was necessary to protect themselves while attending fires
or when raking through the debris, extinguishing the hotspots.
It added that firefighters would be located inside and outside
burning buildings, unprotected from the ash, debris and asbestos
fibres around them.
Mr Jordan said he believed he deserved compensation after "years of
diligent service" risking his life to fight fires across the
region.
On top of his existing condition, Mr Jordan still runs the risk of
contracting mesothelioma, a terminal form of cancer.
Should this happen, he will likely be entitled to further damages
from the council.
"Looking back on my early days in the service I recall the
importance of breathing equipment wasn't as well-known as it is
today," he said.
"While breathing in noxious smoke was a worry for me and my
colleagues, the potential health risks of inhaling asbestos were
simply not thought about or explained to us.
"I often see reports in the news of other firefighters who have
gone on to develop mesothelioma, a terminal form of asbestos cancer
and other debilitating asbestos conditions and I believe sufferers
such as myself need to be fairly compensated after years of
diligent service."
Phoebe Osborne, a personal injury solicitor at Ashtons Legal, who
acted on behalf of Mr Jordan, said her client would now have "peace
of mind" knowing he could return for further compensation, should
his condition deteriorate.
"We are pleased to have obtained this settlement for Mr Jordan and
his family," she said.
"It was a complicated pleural thickening claim, resulting from
decades of asbestos exposure in unprotected conditions, sadly one
of many cases we see.
"The provisional damages settlement now brings peace of mind to Mr
Jordan knowing he can return for further compensation should his
condition deteriorate or in the awful event he does go on to
develop mesothelioma."
A spokeswoman for Suffolk County Council said: "This claim has not
been fully concluded therefore it is not appropriate to comment at
this time."
ASBESTOS UPDATE: Raps Filed vs. 4520 Corp. for Asbestos Injuries
----------------------------------------------------------------
St. Louis Record reported that a woman alleges exposure to asbestos
during her career with Pennsylvania employers caused her to develop
lung cancer.
Diane Keith filed a complaint on Jan. 23 in the St. Louis 22nd
Judicial Circuit Court against 4520 Corp. Inc., et al. alleging
negligence and other counts.
According to the complaint, the plaintiff alleges that at various
times during her employment from 1966 to 2007 at various locations
in Pennsylvania, she was exposed to and inhaled or ingested
asbestos fibers emanating from certain products manufactured, sold,
distributed or installed by defendants. The suit states that on or
about May 26, 2017, she was diagnosed with lung cancer, an
asbestos-induced disease.
The plaintiff holds 4520 Corp. Inc., et al. responsible because the
defendants allegedly negligently included asbestos fibers in their
products when adequate substitutes were available and failed to
provide adequate warnings and instructions concerning the dangers
of working with or around products containing asbestos fibers.
The plaintiff requests a trial by jury and seeks compensatory and
punitive of more than $50,000 and any further relief that the court
deemed appropriate. She is represented by Carson Menges of Menges
Law Firm in Belleville, Illinois and Robert Cowan of Bailey Cowan
Heckman PLLC in Houston, Texas.
St. Louis 22nd Judicial Circuit Court case number 1922cc00174
ASBESTOS UPDATE: Ruling Favors Water Companies Affirmed in Hubbard
------------------------------------------------------------------
In the appealed case entitled Shirley Hubbard, et al., Plaintiffs
and Appellants, v. California Water Service Company, et al.,
Defendants and Appellants, No. A145804, (Cal. Ct. App. 1st), the
Court of Appeals of California for the First District affirms the
judgment entered in favor of defendants California Water Service
Company and San Jose Water Company on plaintiffs' complaint for
wrongful death.
On appeal, Plaintiffs Shirly Hubbard, Thomas Hubbard, Jr. and Ann
Hensley, heirs of decedent Thomas Hubbard, contend the court erred
in instructing the jury on their claim that the water companies
negligently failed to warn decedent's employers -- independent
contractors E.T. Haas and Fairly Constructors (collectively Fairly)
-- about the health risk posed by using a power saw to cut asbestos
cement pipes. Plaintiffs argue further that there is no substantial
evidence to support the jury's finding that Fairly reasonably could
have been expected to know that cutting the pipes posed a health
hazard at or before the time the water companies knew of the risk.
The Court determines that Fairly was a licensed contracting company
whose primary business included underground "installation of piping
systems." Between 1959 and 1974, Cal Water contracted with Fairly
to install water and sewer lines. Between 1974 and 1989, San Jose
Water contracted with Fairly for the installation of water and
sewer lines. Under the terms of the contracts, the water companies
agreed to supply "all materials to be incorporated into the
project" and Fairly agreed to supply "all labor, tools and
equipment" needed for their installation. Fairly was assigned
"complete and authoritative control over the work done [under the
contract] and of the manner of performance." Fairly was charged by
contract with ensuring the safety of its employees.
Plaintiffs have consistently acknowledged that their claim is
dependent on the water companies' failure to warn Fairly that the
pipes posed a health hazard when cut with a saw. They do not claim
that the water companies' selection and provision of the pipes was
a basis for liability. The asbestos in the pipe allegedly created a
safety hazard only when the pipe was cut. Providing the pipe should
not have been harmful if Fairly could reasonably have been expected
to know the dangers posed by cutting the pipes during installation
and to take adequate measures to eliminate the risk.
The Court points out that there is no reason to impose liability on
the water companies because the responsibility for protecting the
safety of Fairly's employees rested solely with Fairly. The Court
explains that in Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, the
Supreme Court observed that "when there is a known safety hazard on
a hirer's premises that can be addressed through reasonable safety
precautions on the part of the independent contractor, . . . the
hirer generally delegates the responsibility to take such
precautions to the contractor, and is not liable to the
contractor's employee if the contractor fails to do so." Kinsman
goes on to hold that "the hirer as landowner may be independently
liable to the contractor's employee, even if it does not retain
control over the work, if (1) it knows or reasonably should know of
a concealed, pre-existing hazardous condition on its premises; (2)
the contractor does not know and could not reasonably ascertain the
condition; and (3) the landowner fails to warn the contractor."
Thus, Fairly's lack of knowledge, actual or constructive, is an
essential element of plaintiff's claim.
In addition, the deposition testimony by another Fairly employee
established that Fairly reasonably could have known of the specific
risk from cutting the pipes by the late 1960's. Charles Oliver
testified that he worked for Fairley for over 30 years starting in
1963. But sometime in the 1960's, a "little while after" he started
working for Fairly, somebody from the "federal government and the
Occupational Safety and Health Administration" came out to the
jobsite and told the crew to wear a respirator mask, and "not to
cut any more pipe without them." They brought the Fairley crew
instructions on how to protect yourself "from the dust particles"
while cutting pipes. After that, his bosses at Fairly got the crew
masks.
Accordingly, the Court finds substantial evidence supports a
finding that Fairly had constructive knowledge of the hazard by the
late 1960's to early 1970's, at or before the time the water
companies acquired that knowledge. Accordingly, the Court
determines that the jury properly found in favor of the water
companies on plaintiffs' failure to warn claim.
A copy of the Opinion, is available at http://tinyurl.com/yy3ltkzl
from Leagle.com.
ASBESTOS UPDATE: SMP Increases Liability to $46.7MM in 4Q 2018
--------------------------------------------------------------
Standard Motor Products, Inc. (NYSE: SMP) disclosed in its press
release dated February 14, 2019, that the Company increased its
asbestos liability to US$46.7 million in the fourth quarter of
2018, with a full year pre-tax charge of $13.6 million in loss from
discontinued operations.
The Company states, "The increase in the asbestos liability was due
primarily to a California asbestos lawsuit, in which a jury
returned a verdict in the fourth quarter of 2018 in favor of the
plaintiff for the gross amount of US$8.6 million in compensatory
damages, of which the Company was held responsible for
approximately US$7.4 million. We strongly disagree with the jury
verdict and will vigorously pursue all rights to appeal. We
anticipate that the appeals process will take approximately two to
three years to be resolved."
A full-text copy of the press release dated February 14, 2019
announcing Standard Motor Products, Inc.'s financial results for
the three months and year ended December 31, 2018 is available at
https://bit.ly/2TmdwBM
ASBESTOS UPDATE: Talc Supplier Seeks Ch. 11 Amid Asbestos Claims
----------------------------------------------------------------
Law360 reported that Imerys Talc America Inc., a supplier of
pharmaceutical giant Johnson & Johnson, filed for Chapter 11 in
Delaware, saying it's facing up to $100 million in debt from a
litany of lawsuits.
ASBESTOS UPDATE: Travelers Had $1.3-Bil. Net Reserves at Dec. 31
----------------------------------------------------------------
The Travelers Companies, Inc. has net asbestos reserves of US$1,281
million at December 31, 2018, according to the Company's Form 10-K
filing with the U.S. Securities and Exchange Commission for the
fiscal year ended December 31, 2018.
Travelers Companies states, "The Company believes that the property
and casualty insurance industry has suffered from court decisions
and other trends that have expanded insurance coverage for asbestos
claims far beyond the original intent of insurers and
policyholders. The Company has received and continues to receive a
significant number of asbestos claims. Factors underlying these
claim filings include continued intensive advertising by lawyers
seeking asbestos claimants and the focus by plaintiffs on
defendants who were not traditionally primary targets of asbestos
litigation. The focus on these defendants is primarily the result
of the number of traditional asbestos defendants who have sought
bankruptcy protection in previous years. The bankruptcy of many
traditional defendants has also caused increased settlement demands
against those policyholders who are not in bankruptcy but remain in
the tort system. Currently, in many jurisdictions, those who
allege very serious injury and who can present credible medical
evidence of their injuries are receiving priority trial settings in
the courts, while those who have not shown any credible disease
manifestation are having their hearing dates delayed or placed on
an inactive docket. Prioritizing claims involving credible
evidence of injuries, along with the focus on defendants who were
not traditionally primary targets of asbestos litigation,
contributes to the claims and claim adjustment expense payment
patterns experienced by the Company. The Company's
asbestos-related claims and claim adjustment expense experience
also has been impacted by the unavailability of other insurance
sources potentially available to policyholders, whether through
exhaustion of policy limits or through the insolvency of other
participating insurers.
"The Company continues to be involved in disputes, including
litigation, with a number of policyholders, some of whom are in
bankruptcy over coverage for asbestos-related claims. Many
coverage disputes with policyholders are only resolved through
settlement agreements. Because many policyholders make exaggerated
demands, it is difficult to predict the outcome of settlement
negotiations. Settlements involving bankrupt policyholders may
include extensive releases which are favorable to the Company, but
which could result in settlements for larger amounts than
originally anticipated. Although the Company has seen a reduction
in the overall risk associated with these disputes, it remains
difficult to predict the ultimate cost of these claims. As in the
past, the Company will continue to pursue settlement
opportunities.
"In addition to claims against policyholders, proceedings have been
launched directly against insurers, including the Company, by
individuals challenging insurers' conduct with respect to the
handling of past asbestos claims and by individuals seeking damages
arising from alleged asbestos-related bodily injuries. It is
possible that the filing of other direct actions against insurers,
including the Company, could be made in the future. It is
difficult to predict the outcome of these proceedings, including
whether the plaintiffs would be able to sustain these actions
against insurers based on novel legal theories of liability. The
Company believes it has meritorious defenses to any such claims and
has received favorable rulings in certain jurisdictions.
"Because each policyholder presents different liability and
coverage issues, the Company generally reviews the exposure
presented by each policyholder at least annually. Among the
factors which the Company may consider in the course of this review
are: available insurance coverage, including the role of any
umbrella or excess insurance the Company has issued to the
policyholder; limits and deductibles; an analysis of the
policyholder's potential liability; the jurisdictions involved;
past and anticipated future claim activity and loss development on
pending claims; past settlement values of similar claims; allocated
claim adjustment expense; the potential role of other insurance;
the role, if any, of non-asbestos claims or potential non-asbestos
claims in any resolution process; and applicable coverage defenses
or determinations, if any, including the determination as to
whether or not an asbestos claim is a products/completed operation
claim subject to an aggregate limit and the available coverage, if
any, for that claim.
"Net asbestos paid loss and loss expenses in 2018, 2017 and 2016
were US$225 million, US$271 million and US$708 million,
respectively. Net payments in 2016 included the US$458 million
payment related to the PPG settlement. Approximately 9%, 4% and
69% of total net paid losses in 2018, 2017 and 2016, respectively,
related to policyholders with whom the Company had entered into
settlement agreements limiting the Company's liability."
A full-text copy of the Form 10-K is available at
https://bit.ly/2GUQyMv
ASBESTOS UPDATE: Union Carbide Faces 12,780 Claims at Dec. 31
-------------------------------------------------------------
Union Carbide Corporation has 12,780 unresolved asbestos-related
claims at December 31, 2018, according to the Company's Form 10-K
filing with the U.S. Securities and Exchange Commission for the
fiscal year ended December 31, 2018.
Union Carbide states, "The Corporation is and has been involved in
a large number of asbestos-related suits filed primarily in state
courts during the past four decades. These suits principally
allege personal injury resulting from exposure to
asbestos-containing products and frequently seek both actual and
punitive damages. The alleged claims primarily relate to products
that UCC sold in the past, alleged exposure to asbestos-containing
products located on UCC's premises, and UCC's responsibility for
asbestos suits filed against a former subsidiary, Amchem. In many
cases, plaintiffs are unable to demonstrate that they have suffered
any compensable loss as a result of such exposure, or that injuries
incurred in fact resulted from exposure to UCC's products.
"Plaintiffs' lawyers often sue numerous defendants in individual
lawsuits or on behalf of numerous claimants. As a result, the
damages alleged are not expressly identified as to UCC, Amchem or
any other particular defendant, even when specific damages are
alleged with respect to a specific disease or injury. In fact,
there are no personal injury cases in which only the Corporation
and/or Amchem are the sole named defendants. For these reasons and
based upon the Corporation's litigation and settlement experience,
the Corporation does not consider the damages alleged against it
and Amchem to be a meaningful factor in its determination of any
potential asbestos-related liability."
A full-text copy of the Form 10-K is available at
https://bit.ly/2Vnb4bN
ASBESTOS UPDATE: Union Carbide Has $1.3-Bil. Liability at Dec. 31
-----------------------------------------------------------------
Union Carbide Corporation's asbestos-related liability for pending
and future claims, including future asbestos-related defense and
processing costs, was US$1,260 million at December 31, 2018,
according to the Company's Form 10-K filing with the U.S.
Securities and Exchange Commission for the fiscal year ended
December 31, 2018.
Union Carbide states, "The Corporation is and has been involved in
a large number of asbestos-related suits filed primarily in state
courts during the past four decades. These suits principally
allege personal injury resulting from exposure to
asbestos-containing products and frequently seek both actual and
punitive damages. The alleged claims primarily relate to products
that UCC sold in the past, alleged exposure to asbestos-containing
products located on UCC's premises and UCC's responsibility for
asbestos suits filed against a former UCC subsidiary, Amchem
Products, Inc. ("Amchem"). In many cases, plaintiffs are unable to
demonstrate that they have suffered any compensable loss as a
result of such exposure, or that injuries incurred in fact resulted
from exposure to the Corporation's products.
"The Corporation expects more asbestos-related suits to be filed
against UCC and Amchem in the future, and will aggressively defend
or reasonably resolve, as appropriate, both pending and future
claims.
"At December 31, 2018, the asbestos-related liability for pending
and future claims against UCC and Amchem, including future
asbestos-related defense and processing costs, was US$1,260
million, and approximately 16 percent of the recorded liability
related to pending claims and approximately 84 percent related to
future claims."
A full-text copy of the Form 10-K is available at
https://bit.ly/2Vnb4bN
ASBESTOS UPDATE: Unopposed Asbestos Case Dismissal Bid Granted
--------------------------------------------------------------
HarrisMartin Publishing reported that a Mississippi federal court
has granted an asbestos defendant's unopposed motion to dismiss,
finding that the plaintiff had not made a plausible claim against
the company to overcome its affirmative "innocent seller" defense.
In the Feb. 11 decision, the U.S. District Court for the Southern
District of Mississippi did allow the plaintiffs 14 days from the
date of the order to file a motion for leave to file an amended
complaint.
ASBESTOS UPDATE: Widow Blames Asbestos for Husband's Death
----------------------------------------------------------
Madison County Record reported that a Texas widow is suing 3M
Company and nearly 20 other manufacturers and users of asbestos
products, alleging failure to warn and negligence.
Katherine Smith of Channelview, Texas, individually and as
representative of the heirs and estate of Eugene Smith, deceased,
filed a complaint Jan. 17 in St. Clair County Circuit Court against
the nearly 20 defendants, alleging they failed to exercise
reasonable care and caution for the safety of others.
According to the complaint, at various times during Eugene Smith's
working career that started in the 1970s, he was exposed to and
inhaled or ingested asbestos fibers emanating from certain products
manufactured, sold, distributed or installed by the defendants. In
September 2016, Smith first became aware that he developed lung
cancer which, ultimately, led to his death Jan. 20, 2017.
The plaintiff alleges the defendants negligently included asbestos
fibers in their products when adequate substitutes were available
and failed to provide adequate warnings and instructions concerning
the dangers of working with or around products containing asbestos
fibers.
Katherine Smith seeks trial by jury and compensatory and economic
damages of more than $50,000. She is represented by attorneys Randy
L. Gori of Gori, Julian & Associates PC in Edwardsville and by
Jason M. Ministrelli and Erik P. Karst of Karst & von Oiste LLP in
Spring, Texas.
St. Clair County Circuit Court Case number 19-L-0062
ASBESTOS UPDATE: Wife Died Inhaling Asbestos From Hubby's Moustache
-------------------------------------------------------------------
Daily Mail reported that a truck factory electrician whose wife
died of lung cancer after inhaling asbestos dust from his moustache
when they kissed 40 years ago has won the right to up to £1m in
compensation.
Lydia Carey died aged 60 in November last year after repeated
contact with toxic asbestos fibres left on her husband John's body
and work overalls while he worked for Vauxhall Motors in Dunstable,
near Luton during the 1970's.
The lethal fibres were transmitted from husband to wife during the
rituals of daily life, London's High Court heard -- such as when
Mrs Carey washed his dust-soaked clothes and when the young couple
kissed and hugged.
The dust and fibres lay dormant in Mrs Carey's body from the
'window of exposure' -- 1976 to 1979 -- until they triggered the
cancer that killed her.
Mrs Carey was diagnosed with mesothelioma -- a cancer of the lining
of the lungs -- in October 2017, and her husband duly sued the car
giant over her premature death.
Mr Carey, of Bedfordshire, claimed he was exposed to large amounts
of asbestos fibres principally while working at Vauxhall's truck
and bus factory in Dunstable, which he then transferred to his
spouse.
The factory 'crawled' with asbestos, he claimed, adding that it
felt as if 'the whole factory was held together with asbestos'.
ASBESTOS UPDATE: Worker Heirs Wins 2nd Asbestos Case
----------------------------------------------------
Times of Malta reported that the heirs of a dockyard worker who
died of cancer after being exposed to asbestos at his place of work
have been awarded EUR18,000 as moral damages by a court for breach
of his right to life.
The case was instituted in the Civil Court in its constitutional
jurisdiction by James and Dorothy Fenech against the Chief
Government Medical Officer and the Attorney General.
The Fenech siblings successfully argued that their father's
fundamental right to life was breached when he had to retire early
and died aged 55 in 1997 after having suffered malignant
mesothelioma because of exposure to asbestos at his place of work.
They pleaded that the authorities had failed to protect their
father and warn him of the dangers of asbestos.
The AG and the CGMO denied the charges against them. They argued
that as soon as the Maltese government became aware of the
consequences of exposure to asbestos it took the appropriate
measures, including legislative changes to protect dockyard workers
and also householders who used asbestos as an insulation material
in their properties.
The court heard how Joseph Fenech's widow and her two children had
sued the dockyard for compensation. The court had found the
dockyard responsible for Mr Fenech's untimely death and ordered it
to pay the family compensation of EUR103,114.37, a decision
subsequently confirmed on appeal in 2010.
The Fenechs then filed the current case in 2017.
In its findings, the court referred to current evidence and to
other cases and said it was clear that despite knowing about the
dangerous consequences of asbestos, the authorities were slow to
react.
The rights of the applicants had been breached because as soon as
the symptoms of their father's disease became known their life was
changed significantly, both financially and emotionally.
The court, presided by Mr Justice Joseph R Micallef, therefore
found that their rights and those of their father as safeguarded by
article 33 of the Constitution and article 2 of the European
Convention on Human Rights were breached.
The court therefore awarded the family non-pecuniary damages of
EUR18,000.
Lawyer Juliette Galea represented the family.
*********
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
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Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors.
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