/raid1/www/Hosts/bankrupt/CAR_Public/190327.mbx
C L A S S A C T I O N R E P O R T E R
Wednesday, March 27, 2019, Vol. 21, No. 62
Headlines
45RPM STUDIO: Traynor Asserts Breach of Disabilities Act
AARON'S INC: Mullen Asserts Breach of Disabilities Act
ADELPHI UNIVERSITY: Marett Asserts Breach of Disabilities Act
AIRBNB: Faces Delisting in Texas Following Israel Class Action
ALLEN EDMONDS: Haggar Suit Alleges ADA Violation
ALLSCRIPTS HEALTHCARE: Bids to Dismiss Surfside Suit Ongoing
AMERICAN GREETINGS: Traynor Files Suit under ADA
ANTHEM BLUE: Class Action Over WellStar Dispute Expanding
ARC MANAGEMENT: Smith Sues over Debt Collection Practices
ARLO TECHNOLOGIES: Kuznicki Law Files Securities Class Action
ASSURANT INC: Suit over Lender-Placed Insurance Ongoing
AUSTRALIA: Remote Communities May Sue NT Over Housing Neglect
AUSTRALIA: Santa Teresa Residents Win Housing Class Action
AUTISM LEARNING: Brown Sues Over Unfair Business Practices
AVIS BUDGET: Kramer et al. Suit Moved to S.D. California
BARCLAYS PLC: May 31 Class Action Settlement Fairness Hearing Set
BEAUTY PLUS: Traynor Asserts Breach of Disabilities Act
BEZEQ THE ISRAEL: Provides Update on Class Action Certification
BHP: Aware of Problems at Samarco Dam, Court Documents Allege
BIG FISH: Faces Class Action in Wash. Over Social-Game Offerings
BIMBO BAKERIES: Tiscareno's Bid to Certify Class Denied as Moot
BRISTOL-MYERS SQUIBB: Investors Challenge Celgene Acquisition
CABLEVISION SYSTEMS: Bid to Certify Class in Jensen Suit Denied
CALIFORNIA TEACHERS: Imhoff et al. Suit Transferred to C.D. Cal.
CANADA: Faces Class Action Over Cannabis License
CAP BEAUTY: Traynor Asserts Breach of Disabilities Act
CBOE GLOBAL: Bid to Dismiss VIX Litigation in Illinois Underway
CBOE GLOBAL: Providence's Securities Suit v. Bats Global Ongoing
CERES, CA: $110K Settlement in Quiroz FLSA Suit Gets Court Approval
CHARLES SCHWAB: Cargo Order Routing Litigation Ongoing
CHARLES SCHWAB: Total Bond Market Fund(TM) Litigation Concluded
CHATHAM LODGING: Ruffy and Doonan Labor Suits Still Ongoing
CHEGG INC: Consolidated Amended Complaint Due March 29
CHRISTOPHER'S GOLDEN: Chen Seeks Unpaid Overtime & Minimum Wages
CLIF BAR: Faces Class Action Over White Chocolate Labeling
COMMUNICATIONS UNLIMITED: Can Compel Arbitration in Wallace Suit
CONAGRA FOODS: Allen Renews Bid to Certify Class and Subclasses
COOK COUNTY, IL: Claims in 3rd Amended Williams Suit Narrowed
COOPER-STANDARD: Settlement Inked in Ontario Auto Suppliers Suit
CREDIT CONTROL: Wins Prelim. Nod of Aronne Suit Settlement
DENVER, CO: Settles Homeless Sweep Class Action
DETROIT, MI: Summary Judgment Bid in MS Rentals Suit Partly Granted
EMERGENT BIOSOLUTIONS: Settlement in Sponn Suit Has Final Approval
ENERGY TRANSFER: Trial in Suit over Regency Merger Set for Sept.
ENERGY TRANSFER: Warner Class Action Voluntarily Dismissed
ENHANCED RECOVERY: Certification of Class Sought in O'Boyle Suit
EPIC GAMES: 2 Law Firms File Class Action Over Loot Boxes
EPIC GAMES: Faces Lawsuit Over Llama Loot Boxes
EVERCORE INC: Class Certification Bid in Suit v. E.G.L. Pending
EVERGREEN PROFESSIONAL: Barker Alleges Violation under FDPCA
FELDSOTT LEE: Hedayati Dismissed from FDCA Suit With Prejudice
FIAT CHRYSLER: Challenges Rear Wire Harness Class Action
FIAT CHRYSLER: Reached Final Settlements in Emission-Related Suits
FIAT CHRYSLER: Suits v. FCA US on UAW-Chrysler Matters Dismissed
FITNESS NORTHWEST: Terranella Files TCPA Suit in Washington
FMM ENT.: Appeals from Orders Barring Dialogue w/ Glass Class Nixed
FORT 250: New York County Sup. Grants Leave to Amend Gould Suit
GENENTECH: Faces Class Action Over Cancer Medications
GLOBAL DISTRIBUTION: Martin Seeks Unpaid Overtime Wages Under FLSA
GLOBAL EAGLE: Court Enters Judgment in M&M Securities Suit
GOSPEL FOR ASIA: Agrees to Refund Donations Totalling $37MM
GOSPEL FOR ASIA: Settles Class Action Over Donations
GROUPON INC: Court Denies Dancel's Bid to Certify Instagram Class
GRUBB & ASSOCIATES: Russell Moves to Certify Collective Action
GUAM: 9th Cir. Affirms Summary Judgment in Crawford Suit
HANNA LAW: McClain Sues Over FDCPA Violation
HECLA MINING: Suits over Klondex Mines Deal Consolidated
HILL'S PET: Vitamin D Recall Prompts Multiple Class Actions
HONEYWELL INT'L: Levi & Korsinsky Named Class Action Lead Counsel
HSBC BANK USA: Rubino Files Suit in S.D. New York
HUMBLE BUNDLE: Violates Disabilities Act, Traynor Suit Says
HUUUGE INC: Wilson Suit Stayed Pending Arbitration Denial Appeal
HYUNDAI: Kirkland & Ellis Attorneys Discuss Settlement Approval
IFIXIT: Traynor Files ADA Class Action in NY
IMPERIAL TOBACCO: Appeals Court Upholds Ruling in Tobacco Suit
IMPERIAL TOBACCO: Intends to Appeal Smoking Class Action Ruling
INMAN'S AUTO: Johnson Suit Moved to Southern District of Texas
INSPIRE BRANDS: Boitnott Alleges Disabilities Act Violation
JACKSON, TN: Police Dept Faces Class Action Over Arrest Warrants
JB HUNT: Settlement in California-Driver Suit Wins Initial Okay
JEHOVAH'S WITNESSES: Judge Authorizes Sex Abuse Class Action
JP MORGAN: Ex-Metal Trader's Guilty Pleas Prompt Class Action
KAWASAKI: Settles Class Action Over Lawnmower Engines
KOHL'S DEPARTMENT: Court Enters Final Judgment in Russell Suit
LASER SPINE: Employees File Class Action Over Sudden Mass Layoff
LLR INC: Alaska Court Dismisses K. Van's Suit With Prejudice
LUCAS COUNTY CORRECTIONAL: Court Denies Bid to Amend in Foster Suit
LYFT INC: May Face Adverse Consequences for Reclassifying Drivers
MADISON REALTY: Olsen Alleges Violation under Disabilities Act
MATTEL INC: Appeal in Calif. Consolidated Suit Pending
MDL 2492: Battle Action v. NCAA over Safety Issues Consolidated
MDL 2492: Battle Action v. NCAA over Safety Issues Consolidated
MDL 2492: Dance Action v. NCAA over Safety Issues Consolidated
MDL 2492: Davis Action v. NCAA over Safety Issues Consolidated
MDL 2492: Dovale Suit v. NCAA over Safety Issues Consolidated
MDL 2492: Drake Action v. NCAA over Safety Issues Consolidated
MDL 2492: Duda Suit v. NCAA over Safety Issues Consolidated
MDL 2492: Johnson Suit v. NCAA over Safety Issues Consolidated
MDL 2492: Jones Suit v. NCAA over Safety Issues Consolidated
MDL 2492: Martin Suit v. NCAA over Safety Issues Consolidated
MDL 2492: Megna Action v. NCAA over Health Issues Consolidated
MDL 2492: Montgomery Action v. NCAA over Health Issues Consolidated
MDL 2492: Robert Action v. NCAA over Health Issues Consolidated
MDL 2492: Schultz Suit v. NCAA over Safety Issues Consolidated
MDL 2492: Slack Action v. NCAA over Safety Issues Consolidated
MDL 2492: Smith Suitv. NCAA over Health & Safety Issues Moved
MDL 2492: Wagner Action v. NCAA over Safety Issues Consolidated
MDL 2492: Woods Action v. NCAA over Safety Issues Consolidated
MDL 2591: Court Grants Watts Guerra, et al.'s Bid to Dismiss Suit
MDL 2672: Court Denies Bids to Issue Suggestion of Remand to JPML
MDL 2672: Court Denies Bids to Remand VWGoA Clean Diesel Suit
MDL 2879: Dorfman Suit vs Marriott over Data Breach Consolidated
METLIFE INC: Court Dismisses All Defendants in Roycroft Class Suit
METLIFE INC: Still Defends Newman Class Action in Illinois
MOMENTA PHARMACEUTICALS: Still Faces LOVENOX-Related Suit
MONSANTO COMPANY: Aldridges Sue over Sale of Herbicide Roundup
MONSANTO COMPANY: Baggett Sues over Sale of Herbicide Roundup
MONSANTO COMPANY: Beasley Sues over Sale of Herbicide Roundup
MONSANTO COMPANY: Bevers Sue over Sale of Herbicide Roundup
MONSANTO COMPANY: Christian Sues over Sale of Herbicide Roundup
MONSANTO COMPANY: Dillard Sues over Sale of Herbicide Roundup
MONSANTO COMPANY: Emeterios Sue over Sale of Herbicide Roundup
MONSANTO COMPANY: Holmeses Sue over Sale of Herbicide Roundup
MONSANTO COMPANY: Irvins Sue over Sale of Herbicide Roundup
MONSANTO COMPANY: Jacksons Sue over Sale of Herbicide Roundup
MONSANTO COMPANY: McRight Sues over Sale of Herbicide Roundup
MONSANTO COMPANY: Rice Sues over Sale of Herbicide Roundup
MT GOX: Ex-CEO Loses Motion to Strike Class Action
NATIONAL CREDIT: June 28 Filing Due of Dipositional Docs in Cortes
NATIONAL GENERAL: Suit over Wells Fargo Insurance Program Pending
NETGEAR INC: 4 Securities Class Action Filed in California
NEW ENGLAND MOTOR: Workers' WARN Class Action Settled
NIKE INC: Loses Bid to Scale Back Gender Bias Class Action
NIO INC: Sidoli Says Vehicle Sales & Revenues Report Misleading
NISSAN MOTOR: Robins Geller Tapped as Class Action Lead Counsel
NORTHCENTRAL PIZZA: Gonzalez Files Class Action in Ca. Super. Ct.
NORTHERN CALIFORNIA: Filing of 1st Amended Osegeuda Suit Allowed
NORTHUP GRUMAN: Among Defendants in Tax Privacy Class Action
OBALON THERAPEUTICS: Hearing on Bid to Dismiss Set for April 11
OHIO NATIONAL: Faces Lawsuits Over Brokers' Trail Commissions
ORACLE CORP: Averts Class Action Over 401(k) Plan Fees
ORACLE CORP: Summary Judgement Bid in Troudt ERISA Suit Partly OK'd
PARKING REIT: SIPDA Says Proxy Statements Misleading
PARWELL INVESTMENTS: McCarthy Attorney Discusses Carriage Motions
POST UNIVERSITY: Squire Pattons Attorney Discusses Class Action
PROSHARES SHORT: Johnson Fistel Files Securities Class Action
RENEWAL BY ANDERSEN: Traynor Asserts Breach of Disabilities Act
RESTAURANTS BRANDS: 4 Suits over No-Poaching Policy Filed
RIPPLE: XRP Class Action to Remain in Federal Court
RIT TECHS: N.J. Court Grants Motion to Dismiss Class Action
RIVERBOAT DELTA: Ross Files Class Action in Ca. Super. Ct.
RORA LLC: Seeks to Hire Pick & Zabicki as Special Counsel
S&D CARWASH: Blumenthal Nordrehaug Files OT Wage Class Action
SC DATA: Article III Standing Needed Prior to Settlement Approval
SEIU LOCAL: Faces Suit Over Failure to Comply with Janus Ruling
SERVIS ONE: Rivera's Class Cert. Bid Denied
SH MANAGEMENT: Cranberry Files Civil Rights Suit in Ohio
STAMPS.COM INC: Faces Securities Class Action in California
STANFORD GROUP: Ponzi Scheme Case Transferred to Baton Rouge
STATE FARM: Faces Class Action Over Total Loss Reports
SYNEOS HEALTH: April 30 Lead Plaintiff Motion Deadline Set
TERRILL OUTSOURCING: Sperber Files FDCPA Suit in S.D. New York
TIM HORTONS: Third-Party Funder Approval Win for Plaintiff Bar
TOKYO ELECTRIC: US Sailors' Fukushima Radiation Class Suit Tossed
TOYOTA MOTOR: Plaintiffs Propose Sienna Sliding Door Settlement
TRANSGENOMIC INC: Campbell's Section 20(a) Claim Dismissal Flipped
ULTA BEAUTY: Class Action Over Used Makeup Can Proceed
UNDER ARMOUR: Bid to Dismiss Maryland Securities Suit Underway
UNDER ARMOUR: Suit over MyFitnessPal Application Breach Ongoing
UNITED HEALTHCARE: Amended Scheduling Deadlines in Samson Granted
UNITED NATURAL: Claims in Cortez Suit Over Unpaid Wages Narrowed
UNITED STATES: Immigrant Parents Seeking Reunification with Kids
UNITED STATES: Prelim Injunction Bid in CAM Program Suit Partly OKd
UNITED STATES: Ruling on IRS' PTIN Fee in Montrois Suit Vacated
UNITEDHEALTHCARE INSURANCE: Cert. of Classes Sought in Hill Suit
VERITIV OPERATING: Arbitration Ruling in Pereyda Suit Partly Okayed
VICTORIA: Class Action Mulled Over Bellarine Cancer Rates
VOYA FINANCIAL: Advance Trust's COI Class Suit in Minn. Ongoing
VOYA FINANCIAL: Awaits Court OK on Bid to Drop Barnes Suit
VOYA FINANCIAL: Bid to Nix Amended Goetz Complaint Still Pending
WALMART: Faces Class Action in Hawaii Over Kona Coffee Labeling
WEIGHT WATCHERS: Robbins Geller Files Securities Class Action
WELLS FARGO: Court Allows Filing of Cotton Class List Under Seal
WESTPAC: Common Funder Orders Legal, Federal Court Rules
WILLIAM WARREN: Beatty Sues Over Unpaid Overtime Wages
WUXI PHARMATECH: Faces Securities Class Action
XEROX CORP: Shareholders' Bid to Revive Merger Suit Claims Nixed
[*] Class Action Filings v. Food Beverage Companies Up 9% in 2018
[*] ILR Publishes Report on Broken Securities Class Action System
[*] Worker Misclassification Class Actions on the Rise in Canada
*********
45RPM STUDIO: Traynor Asserts Breach of Disabilities Act
--------------------------------------------------------
45RPM Studio USA, Inc. is facing a class action lawsuit filed
pursuant to the Americans with Disabilities Act. The case is styled
as Yaseen Traynor, on behalf of himself and all others similarly
situated, Plaintiff v. 45RPM Studio USA, Inc., Defendant, Case No.
1:19-cv-02327 (S.D. N.Y., March 14, 2019).
45RPM Studio USA, Inc. engages in the planning, production, and
sale of various apparel products for men and women around the
world. The company offers shirts, mufflers, vests, stoles,
bandanas, blousons, hoodies, slacks, pants, ties, T-shirts,
jackets, outerwear, dresses, skirts, cut-sew products, knits, pins,
caps, earrings, brooches, hats, pocket squares, and belts. It
provides its products through retail stores and online in Europe,
the United States, and internationally. The company was founded in
1977 and is based in Tokyo, Japan.[BN]
The Plaintiff is represented by:
Dov Michael Mittelman, Esq.
Stein Saks, PLLC
285 Passaic Street
Hackensack, NJ 07601
Tel: (201) 282-6500
Email: mittelmandov@yahoo.com
AARON'S INC: Mullen Asserts Breach of Disabilities Act
------------------------------------------------------
Aaron's Inc. is facing a class action lawsuit filed pursuant to the
Americans with Disabilities Act. The case is styled as Bartley
Michael Mullen, Jr., individually and on behalf of all others
similarly situated, Plaintiff v. Aaron's Inc., Defendant, Case No.
2:19-cv-00263-MJH (W.D. Penn., March 11, 2019).
Aaron's, Inc. operates as an omnichannel provider of lease-purchase
solutions to underserved and credit-challenged customers. It
operates in three segments: Progressive Leasing, Aaron's Business,
and DAMI. The company also engages in the sale, lease ownership,
and specialty retailing of furniture, consumer electronics, home
appliances, and accessories.[BN]
The Plaintiff is represented by:
Bruce R. Carlson, Esq.
1133 Penn Avednue, 5th Avenue
Pittsburgh, PA 15222
Tel: (412) 322-9243
Email: bcarlson@carlsonlynch.com
ADELPHI UNIVERSITY: Marett Asserts Breach of Disabilities Act
-------------------------------------------------------------
Adelphi University is facing a class action lawsuit filed pursuant
to the Americans with Disabilities Act. The case is styled as Lucia
Marett, on behalf of herself and all others similarly situated,
Plaintiff v. Adelphi University, Defendant, Case No. 1:19-cv-02187
(S.D. N.Y., March 11, 2019).
Adelphi University is a small, private, nonsectarian university
located in Garden City, in Nassau County, New York, United States.
Adelphi also has centers in Manhattan, Hudson Valley, and Suffolk
County. It is the oldest institution of higher education in
suburban Long Island.[BN]
The Plaintiff is represented by:
C.K. Lee, Esq.
Lee Litigation Group, PLLC
30 East 39th Street
2nd Floor
New York, NY 10016
Tel: (212) 465-1188
Fax: (212) 465-1181
Email: cklee@leelitigation.com
AIRBNB: Faces Delisting in Texas Following Israel Class Action
--------------------------------------------------------------
Jewish News Syndicate reports that the Comptroller of Public
Accounts for the State of Texas officially added Airbnb to the
"List of Companies that Boycott Israel" on March 1, blacklisting
the large online-travel company for its discrimination against
Jewish homeowners posting lodging offers in Judea and Samaria.
Comptroller Glenn Hegar's move was lauded by Israeli Foreign
Ministry spokesman Emmanuel Nahshon, who said he hoped it would "be
emulated by other states and other countries in the world."
Airbnb responded that "we unequivocally reject and oppose the BDS
movement, and are disappointed by the decision. There are over
20,000 Airbnb hosts in Israel who open their doors and showcase the
best of Israeli hospitality to guest from around the world, which
boosts local families, businesses and communities."
The company said that it would continue to invest in Israel.
In November 2018, Airbnb suddenly delisted approximately 200
lodgings posted by Jewish homeowners, offering travelers a place to
stay in the historic and ancient regions of Judea and Samaria, also
known as the West Bank.
It argued that the listings were in "occupied territories," and
that it could not morally allow them a place on their website. The
delistings only occurred in Jewish communities; Airbnb listings in
Arab communities remained on the site.
The move sparked outrage across the Jewish world, as well as a
class-action lawsuit filed by the delisted home owners.
In January, Florida placed Airbnb on a list of companies that may
no longer be allowed to do business in the state.
In Texas, Airbnb has 90 days to prove that it has not boycotted
Israel before the state takes legal action in the form of selling,
redeeming, divesting or withdrawing publicly traded securities of
the company. In Texas, a boycott of Judea and Samaria constitutes a
boycott of Israel. [GN]
ALLEN EDMONDS: Haggar Suit Alleges ADA Violation
------------------------------------------------
Allen Edmonds, LLC is facing a class action lawsuit filed pursuant
to the Americans with Disabilities Act. The case is styled as Elia
Haggar, KyoHak Chu and Valerie Brooks, individually and on behalf
of themselves and all others similarly situated, Plaintiffs v.
Allen Edmonds, LLC, a Wisconsin corporation and Does 1 to 10,
inclusive, Defendants, Case No. 2:19-cv-01686-CAS-SS (C.D. Cal.,
March 7, 2019).
Allen Edmonds LLC designs and manufactures footwear, clothing, and
accessories for men. It provides dress shoes, casual shoes,
removable insole shoes, loafers and slip-ons, boat shoes and
driving mocs, boots, and golf shoes; and shoe care products, such
as brushes, cloth and bags, laces, insoles and orthotic inserts,
overshoes, shoe horns, shoe trees, polishes, creams and cleaners,
and shoe care kits.[BN]
The Plaintiffs are represented by:
Babak Bobby Saadian, Esq.
Wilshire Law Firm
3055 Wilshire Boulevard 12th Floor
Los Angeles, CA 90010
Tel: (213) 381-9988
Fax: (213) 381-9989
Email: bobby@wilshirelawfirm.com
- and -
Thiago Merlini Coelho, Esq.
Wilshire Law Firm
3055 Wilshire Boulevard 12th Floor
Los Angeles, CA 90010
Tel: (213) 381-9988
Fax: (213) 381-9989
Email: thiago@wilshirelawfirm.com
ALLSCRIPTS HEALTHCARE: Bids to Dismiss Surfside Suit Ongoing
------------------------------------------------------------
Allscripts Healthcare Solutions, Inc. said in its Form 10-K report
filed with the U.S. Securities and Exchange Commission on February
22, 2019, for the fiscal year ended December 31, 2018, that the
company is seeking dismissal of a purported class action complaint
entitled, Surfside Non-Surgical Orthopedics, P.A. v. Allscripts
Healthcare Solutions, Inc.
On January 25, 2018, a complaint was filed in Surfside Non-Surgical
Orthopedics, P.A. v. Allscripts Healthcare Solutions, Inc., No.
1:18-cv-00566, in the Northern District of Illinois.
This is a purported class action lawsuit related to a January 18,
2018 ransomware attack, and alleges the following counts: (1)
negligence, gross negligence and negligence per se; (2) breach of
contract; (3) unjust enrichment; (4) violation of the Illinois
Consumer Fraud Act; and (5) violation of the Illinois Deceptive
Trade Practices Act. Plaintiff seeks to represent a class of
customers seeking damages from Allscripts.
Allscripts has moved to dismiss the Plaintiff's complaint.
No further updates were provided in the Company's SEC report.
Allscripts Healthcare Solutions, Inc. provides information
technology solutions and services to healthcare organizations in
the United States, Canada, and internationally. Allscripts
Healthcare Solutions, Inc. was founded in 1986 and is headquartered
in Chicago, Illinois.
AMERICAN GREETINGS: Traynor Files Suit under ADA
------------------------------------------------
American Greetings Corporation is facing a class action lawsuit
filed pursuant to the Americans with Disabilities Act. The case is
styled as Yaseen Traynor, on behalf of himself and all others
similarly situated, Plaintiff v. American Greetings Corporation,
Defendant, Case No. 1:19-cv-02319-JGK (S.D. N.Y., March 14, 2019).
American Greetings Corporation, LLC is a privately owned American
company which is the world's largest greeting card producer. Based
in Westlake, Ohio, a suburb of Cleveland, the company sells paper
greeting cards, electronic greeting cards, party products, and
electronic expressive content.[BN]
The Plaintiff is represented by:
Dov Michael Mittelman, Esq.
Stein Saks, PLLC
285 Passaic Street
Hackensack, NJ 07601
Tel: (201) 282-6500
Email: mittelmandov@yahoo.com
ANTHEM BLUE: Class Action Over WellStar Dispute Expanding
---------------------------------------------------------
Ricky Leroux, writing for Marietta Daily Journal, reports that a
class action lawsuit filed against Anthem Blue Cross Blue Shield
over its dispute with WellStar Health System last month is
expanding, adding new plaintiffs and a new allegation against the
insurance company.
The suit, filed by Marietta attorney Jason Doss in federal court on
Feb. 5, originally named two Cobb County residents as plaintiffs
and includes in the class anyone who purchased Anthem's Pathways
health insurance plan, which is sold on the individual health
insurance exchange created by the Affordable Care Act.
The core of the complaint stems from a dispute over whether
WellStar is considered "in network" for customers who purchased
Anthem's Pathways insurance plans. The plaintiffs claim that
WellStar was listed as in network when they signed up for the
Pathways plans during open enrollment in November and December
2018.
However, Anthem had already notified WellStar in August that it
planned to drop the health system from its network effective Feb.
4, according to WellStar. That deadline came and went with no new
agreement between WellStar and Anthem.
On March 4, Doss filed an amended version of the complaint that
added five more plaintiffs and a new allegation against the
insurer, claiming that Anthem has unilaterally changed the terms of
their plans despite provisions in the insurance plans that would
prevent them from doing so.
The lawsuit asks for more than $5 million in damages.
Additionally, in what could be a first under the Affordable Care
Act, the lawsuit asks the federal court to grant the plaintiffs a
"special enrollment period," which would allow them to sign up for
a new insurance plan. The ACA contains provisions that allow for a
special enrollment plan if an insurer violates a provision of its
contract with a customer, according to the lawsuit. [GN]
ARC MANAGEMENT: Smith Sues over Debt Collection Practices
---------------------------------------------------------
RUSSEL SMITH, Individually and On Behalf of All Others Similarly
Situated, the Plaintiff, vs. ARC MANAGEMENT GROUP, LLC, the
Defendant, Case No. 19CV0479 WQH AGS (S.D. Cal., March 12, 2019),
seeks to recover damages and injunctive relief against Defendant
for violations of the Fair Debt Collection Practices Act.
Sometime in mid-2017, the Plaintiff purchased an item from QVC;
however, Plaintiff never received this item. On or about March 14,
2018, Plaintiff received two calls on his cellular telephone number
ending in "5440" from the telephone number 619-391-4958.
On or about November 2017, Plaintiff signed a notarized document
from QVC. During both calls, the caller demanded that the Plaintiff
provide it with his personal information to proceed with the call.
However, Plaintiff requested that the caller identify themselves
before he would provide any personal information. Instead of
identifying itself, the caller hung up on Plaintiff. At no time
during these calls did ARC identify itself as ARC or a debt
collector.
On or about March 16, 2018, the Plaintiff called the 619-391-4958
number to get an 13 explanation of who they were and why they were
calling. Yet again, the individual on the other side of this call
did not identify itself. Instead, this individual kept requesting
that Plaintiff provide his date of birth so that they could verify
the account.
The Plaintiff was personally affected by Defendant's conduct. The
Plaintiff was frustrated as he was never informed as to who was
calling him and attempting to collect the debt. As a direct and
proximate result of Defendant's willful violations of the FDCPA,
Plaintiff has suffered actual damages, the lawsuit says.[BN]
The Plaintiff's Counsel:
Abbas Kazerounian, Esq.
Jason A. Ibey, Esq.
Nicholas R. Barthel, Esq.
KAZEROUNI LAW GROUP, APC
245 Fischer Avenue, Suite D1
Costa Mesa, CA 92626
Telephone: (800) 400-6808
Facsimile: (800) 520-552
E-mail: ak@kazlg.com
jason@kazlg.com
nicholas@kazlg.com
- and -
Daniel G. Shay, Esq.
LAW OFFICE OF DANIEL G. SHAY
409 Camino Del Rio South, Suite 101B
San Diego, CA 92108
Telephone: (619) 222-7429
Facsimile: (866) 431-3292
E-mail: danielshay@tcpafdcpa.com
- and -
Joshua B. Swigart, Esq.
Yana A. Hart, Esq.
HYDE & SWIGART
2221 Camino Del Rio South, Suite 101
San Diego, CA 92108-3551
Telephone: (619) 233-7770
Facsimile: (619) 297-1022
E-mail: josh@westcoastlitigation.com
yana@westcoastlitigation.com
ARLO TECHNOLOGIES: Kuznicki Law Files Securities Class Action
-------------------------------------------------------------
The securities litigation law firm of Kuznicki Law PLLC issues the
following notice on behalf of shareholders of the following
publicly traded companies. Shareholders who purchased shares in
these companies during the dates listed below are encouraged to
contact the firm regarding possible appointment as lead plaintiff
and a preliminary estimate of their recoverable losses.
If you wish to choose counsel to represent you and the class, you
must apply to be appointed lead plaintiff and be selected by the
Court. The lead plaintiff will direct the litigation and
participate in important decisions including whether to accept a
settlement for the class in the action. The lead plaintiff will be
selected from among applicants claiming the largest loss from
investment in the respective securities during the class periods.
Members of the class will be represented by the lead plaintiff and
counsel chosen by the lead plaintiff. No classes have yet been
certified in the actions below. Appointment as lead plaintiff is
not required to partake in any recovery.
Arlo Technologies, Inc. (NYSE: ARLO)
Investors Affected: Investors who purchased shares pursuant and/or
traceable to the Company's Registration Statement and Prospectus
issued in connection with the August 3, 2018 Initial Public
Offering
A class action has commenced on behalf of certain shareholders in
Arlo Technologies, Inc. The filed complaint alleges that the
Registration Statement made materially false and/or misleading
statements and/or failed to disclose that: (i) there was a flaw
and/or quality issue with Arlo's newly designed battery for its
Ultra camera systems; (ii) this flaw and/or quality issue with the
Ultra battery could result in a shipping delay of Arlo's Ultra
product; (iii) such a shipping delay endangered Arlo's chances of
launching the Ultra product in time for the crucial holiday season;
(iv) such a shipping delay would allow Arlo's competitors to
capitalize on the Ultra product's missed launch, thereby increasing
their own market share; (v) Arlo's consumers had been experiencing
battery drain issues and other battery-related issues in connection
with recent firmware updates; (vi) because of the foregoing, Arlo's
fourth quarter 2018 results and consumer base would be negatively
impacted; and (vii) as a result, Arlo's Registration Statement was
materially false and misleading at all relevant times.
Daniel Kuznicki, Esq.
Kuznicki Law PLLC
445 Central Avenue, Suite 334
Cedarhurst, NY 11516
Phone: (347) 696-1134
Cell: (347) 690-0692
Fax: (347) 348-0967
Email: dk@kclasslaw.com [GN]
ASSURANT INC: Suit over Lender-Placed Insurance Ongoing
-------------------------------------------------------
Assurant, Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on February 22, 2019, for the
fiscal year ended December 31, 2018, that the company continues to
defend lawsuits related to lender-placed insurance programs.
The Company is involved in a variety of litigation and legal and
regulatory proceedings relating to its current and past business
operations and, from time to time, it may become involved in other
such actions.
In particular, the Company is a defendant in class actions in a
number of jurisdictions regarding its Lender-placed Insurance
programs. These cases assert a variety of claims under a number of
legal theories. The plaintiffs typically seek premium refunds and
other relief.
The Company continues to defend itself vigorously in these class
actions.
The Company has participated and may participate in settlements on
terms that the Company considers reasonable.
No further updates were provided in the Company's SEC report.
Assurant, Inc., through its subsidiaries, provides risk management
solutions for housing and lifestyle markets in North America, Latin
America, Europe, and the Asia Pacific. The company operates through
three segments: Global Housing, Global Lifestyle, and Global
Preneed. The company was formerly known as Fortis, Inc. and changed
its name to Assurant, Inc. in February 2004. Assurant, Inc. was
founded in 1892 and is headquartered in New York, New York.
AUSTRALIA: Remote Communities May Sue NT Over Housing Neglect
-------------------------------------------------------------
Australian Associated Press reports that dozens of Aboriginal
communities could sue the Northern Territory government for
millions of dollars after the awarding of compensation to residents
from remote Santa Teresa over the neglect of their homes.
The Eastern Arrernte people of Santa Teresa, near Alice Springs,
sued and won in the Northern Territory civil and administrative
tribunal on the basis that their homes were uninhabitable owing to
neglect.
The government countersued for unpaid rent and was at one stage
claiming nearly $2m, or an average $21,000, from Santa Teresa's
households.
But the tribunal dismissed that claim and ruled that the housing
department had breached its tenancy agreement and obligations as a
landlord.
One of the worst proven cases involved Jasmine Cavanagh, who had a
blocked toilet and leaking shower for 269 days, during which time
sewage water leaked through her family's home.
"I used to have to go and have a shower at my mum's house," she
said. "We would also wash the kids there."
One household did not have an air conditioner for at least 540
days, in a region where heat is extreme, while others were left
without front or back doors, handles and locks, and stoves not
working for long periods.
"This is a landmark case cementing that governments cannot enforce
dodgy rental debts against remote Indigenous communities for
uninhabitable housing," said Lou Dargan from Grata Fund, which
funded the litigation.
"Grata Fund and Australian Lawyers for Remote Aboriginal Rights are
exploring the potential for similar litigation in other remote
communities."
The residents' lawyer, Dan Kelly, said he had already been
approached by other communities.
Four households were examined but the compensation will apply to
all 70 Santa Teresa households that were part of the class action,
with rough estimates that about $350,000 in taxpayer funds will be
paid.
The housing minister, Gerry McCarthy, blamed the previous Country
Liberal government, which was in power when the class action
started in 2016.
The Labor government had committed $1.1bn over a decade to housing
in remote communities but the commonwealth was yet to honour its
outstanding $550m commitment "which has been held up for eight
months", Mr. McCarthy said.
The department declined to comment. [GN]
AUSTRALIA: Santa Teresa Residents Win Housing Class Action
----------------------------------------------------------
Emilia Terzon and Thea Halpin, writing for ABC, report that an
Indigenous woman who has successfully sued the Northern Territory
Government for leaving her living in squalor hopes the case will
lead to better housing for the next generation.
Key points:
Residents launched the action in 2016 over the dire state of houses
in their community near Alice Springs
A tribunal has ruled four residents should be compensated for
repairs and maintenance not carried out
It is hoped 66 other residents involved in the class action will
have their cases settled following the decision
"Maybe in the future we can have better houses," Jasmine Cavanagh
said.
"Maybe in the future our kids can have good houses."
Ms Cavanagh is one of 70 residents from the remote community Santa
Teresa, south of Alice Springs, who brought a class action against
the Government in 2016 for failing to maintain their public
housing.
Today four of those cases -- including Ms Cavanagh -- were heard in
the Northern Territory Civil And Administrative Tribunal.
The tribunal found those four residents did not owe any rent, and
they should be compensated for repairs and maintenance that were
not carried out.
It is hoped the other residents involved in the class action will
have their cases settled following the decision.
In a statement, the Department of Local Government, Housing and
Community Development said it would "carefully consider the
decision before making any further comment".
NT Housing Minister Gerry McCarthy declined to be interviewed but
said in a statement he was "proud" of his Government's remote
housing program.
"I look forward to continue to work with the residents of Santa
Teresa and other remote communities across the NT to deliver better
housing in partnership with remote Indigenous Territorians," the
statement said.
Result sets new precedent, lawyer says
Daniel Kelly, from Australia Lawyers for Remote Aboriginal Rights,
which fought on behalf of the residents, said the case was the
first of its kind and has opened the door for similar class
actions.
He said he was already talking to other communities about legal
action.
"We know that housing is in dire straits, right across the Northern
Territory," he said.
"We now know the Northern Territory is liable for compensation to
provide decent housing in remote communities.
"The Government needs to do something urgently to address this
liability it now has to Aboriginal tenants across the Northern
Territory."
An Indigenous woman stands in front of a basic dwelling.
PHOTO: Jasmine Cavanaugh was one of the lead plaintiffs in the
class action. (ABC News: Isabella Higgins)
The hearings late last year heard stories of substandard housing
conditions and the way they affected community members.
Jasmine Cavanagh told the hearing she complained multiple times
about her shower that leaked sewerage into the bathroom.
"Sometimes I got a bandaid solution, then the same problem would
start again," she said.
"I would mop it up at 8:00pm, then get up at midnight and mop it up
again, and then get up in the early morning and mop it up again."
Ms Cavanagh, was awarded $3,741.03 from the tribunal and said she
would put the money towards household goods and an
air-conditioner.
"It was a bad house that I moved into -- everything here is old,"
Ms Cavanagh said.
'Convoluted' rent system needs change, lawyer says
A resident in her 70s, Enid Young, lived in a house with no fan, a
broken air-conditioning unit and windows that would not open.
She had been told she owed more than $30,000 in rent, which was
then reduced to about $3,000.
It finally emerged during the hearing she did not owe any rent at
all.
Mr Kelly said the Government needed to urgently address the
"utterly complicated and convoluted" way rent was collected, which
contributed to debts accruing.
"[The Government] failed throughout remote communities to collect
rent and has left residents with huge debts," he said.
"It seems those debts are unenforceable and the NT Department of
Housing has failed to collect tens of millions of dollars of rent.
"That is only a negative for remote Aboriginal people who want to
have their houses cared for." [GN]
AUTISM LEARNING: Brown Sues Over Unfair Business Practices
----------------------------------------------------------
Luciane Brown, individually, and on behalf of all others similarly
situated, Plaintiff, v. Autism Learning Partners, LLC and Does 1
through 10, inclusive, Defendants, Case No. 19STCV08022 (Ca. Super.
Ct., Los Angeles Cty., March 8, 2019) is an action against the
Defendants for California Labor Code violations and unfair business
practices stemming from Defendants' failure to timely pay all wages
to terminated employees, and failure to indemnify necessary
business expenses.
According to the complaint, the Defendants maintained a systematic,
company-wide policy and practice of failing to indemnify employees
for necessary business expenses incurred, and willfully failing to
pay employees all wages, including accrued vacation time and/or
paid time off wages due within the time period specified by
California law when employment terminates.
The Defendants were and are legally responsible for all of the
unlawful conduct, policies, practices, acts and omissions as the
employer of Plaintiff and the Class, says the complaint.
Plaintiff Luciane Brown is a California resident that worked for
the Defendants in the County of Los Angeles, in California.
Defendants own/owned and operate/operated an industry, business,
and establishment within the State of California, including Los
Angeles County.[BN]
The Plaintiff is represented by:
Kane Moon, Esq.
Allen Feghali, Esq.
MOON & YANG, APC
1055 W. Seventh St., Suite 1880
Los Angeles, CA 90017
Phone: (213) 232-3128
Facsimile: (213) 232-3125
Email: kane.moon@moonyanglaw.com
allen.feghali@moonyanglaw.com
AVIS BUDGET: Kramer et al. Suit Moved to S.D. California
--------------------------------------------------------
The case, Steve Kramer and David Kent Greenley, individually and on
behalf of all others similarly situated, the Plaintiffs, vs. Avis
Budget Group, Inc., a Delaware and New Jersey Corporation, the
Defendant, Case No. 37-02018-00067024-CU-BT-CTL, was removed from
the Superior Court of California, County of San Diego, to the U.S.
District Court for the Southern District of California (San Diego)
on March 4, 2019. The Southern District of California Court Clerk
assigned Casev No. 3:19-cv-00421-GPC-NLS to the proceeding. The
case is assigned to the Hon. Judge Gonzalo P. Curiel.
Avis Budget Group, Inc. is the American parent company of Avis Car
Rental, Budget Car Rental, Budget Truck Rental, Payless Car Rental,
Apex Car Rentals, Maggiore Group and Zipcar. The company's
headquarters are located in Parsippany, New Jersey, United
States.[BN]
Attorneys for the Plaintiffs:
Michael R. Reese, Esq.
REESE RICHMAN LLP
875 Avenue of the Americas, 18th Floor
New York, NY 10001
Telephone: (212) 643-0500
Facsimile: (212) 253-4272
E-mail: mreese@reeserichman.com
Attorneys for the Defendant:
Anthony Stuart Newman, Esq.
REED SMITH
355 S. Grand Avenue, Suite 2900
Los Angeles, CA 90071
Telephone: (213) 457-8000
Facsimile: (213) 457-8080
E-mail: anewman@reedsmith.com
BARCLAYS PLC: May 31 Class Action Settlement Fairness Hearing Set
-----------------------------------------------------------------
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
BARBARA STROUGO, Individually and on
Behalf of All Others Similarly Situated,
Plaintiff(s),
v.
BARCLAYS PLC, BARCLAYS CAPITAL INC.,
ROBERT DIAMOND, ANTONY JENKINS,
CHRISTOPHER LUCAS, TUSHAR MORZARIA,
and WILLIAM WHITE,
Defendants.
Case No. 1:14-cv-05797-VM-DCF
ECF CASE
Notice is hereby given pursuant to an Order of the United States
District Court for the Southern District of New York that a hearing
will be held on May 31, 2019, at 10:00 a.m. before the Honorable
Victor Marrero, United States District Judge of the Southern
District of New York, United States Courthouse, 500 Pearl Street,
Courtroom 11B, New York, New York 10007 for the purpose of
determining: (1) whether the proposed Settlement of the claims in
the above-captioned Action for consideration including the sum of
$27,000,000 should be approved by the Court as fair, reasonable,
and adequate; (2) whether the proposed plan to distribute the
Settlement proceeds is fair, reasonable, and adequate; (3) whether
the application of Lead Counsel for an award of attorneys' fees of
up to thirty percent of the Settlement Amount ($8,100,000) plus
interest, reimbursement of expenses of not more than $1,000,000,
and a Compensatory Award to Plaintiffs of no more than $35,000
collectively (or $20,000 to Class Representative Mohit Sahni and
$15,000 to Class Representative Joseph Waggoner) should be
approved; and (4) whether this Action should be dismissed with
prejudice as set forth in the Stipulation of Settlement dated
January 28, 2019 (the "Settlement Stipulation").
If you purchased or otherwise acquired American Depository Shares
("ADSs") of Barclays PLC ("Barclays" or the "Company") between
August 2, 2011 and June 25, 2014, both dates inclusive (the "Class
Period"), your rights may be affected by this Settlement, including
the release and extinguishment of claims you may possess relating
to your ownership interest in Barclays ADSs. If you have not
received a detailed Notice Of Proposed Settlement Of Class Action
("Notice") and a copy of the Proof of Claim and Release Form, you
may obtain copies by visiting
www.Barclayslxsecuritieslitigation.com or by contacting the Claims
Administrator toll-free at 1-888-593-6794 or at
info@Barclayslxsecuritieslitigation.com. If you are a member of the
Settlement Class, in order to share in the distribution of the Net
Settlement Fund, you must submit a Proof of Claim and Release Form
to the Claims Administrator at the address listed in the detailed
Notice and postmarked no later than June 7, 2019, establishing that
you are entitled to recovery. Unless you submit a written exclusion
request, you will be bound by any judgment rendered in the Action
whether or not you make a claim.
If you desire to be excluded from the Settlement Class, you must
submit to the Claims Administrator a request for exclusion so that
it is postmarked no later than May 10, 2019, in the manner and form
explained in the Notice. All members of the Settlement Class who
have not requested exclusion from the Settlement Class will be
bound by any judgment entered in the Action pursuant to the
Settlement Stipulation.
Any objection to the Settlement, Plan of Allocation, or Lead
Counsel's request for an award of attorneys' fees and reimbursement
of expenses and award to Plaintiffs must be in the manner and form
explained in the detailed Notice and postmarked no later than May
10, 2019, to each of the following:
Clerk of the Court
United States District Court
Southern District of New York
500 Pearl Street
New York, NY 10007
Lead Counsel
United States District Court
Jeremy A. Lieberman
POMERANTZ LLP
600 Third Avenue, Floor 20
New York, NY 10016
Counsel For Defendants
Jeffrey T. Scott
SULLIVAN & CROMWELL LLP
125 Broad Street
New York, New York 10004
If you have any questions about the Settlement, you may visit
www.Barclayslxsecuritieslitigation.com or write to Lead Counsel at
the above address. PLEASE DO NOT CONTACT THE COURT OR THE CLERK'S
OFFICE REGARDING THIS NOTICE.
Dated: February 4, 2019
BY ORDER OF THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK [GN]
BEAUTY PLUS: Traynor Asserts Breach of Disabilities Act
-------------------------------------------------------
Beauty Plus Salon, Inc. is facing a class action lawsuit filed
pursuant to the Americans with Disabilities Act. The case is styled
as Yaseen Traynor, on behalf of himself and all others similarly
situated, Plaintiff v. Beauty Plus Salon, Inc., Defendant, Case No.
1:19-cv-02316-KPF (S.D. N.Y., March 14, 2019).
Beauty Plus Salon Inc. was founded in 2003. The Company's line of
business includes the wholesale of beauty products.[BN]
The Plaintiff is represented by:
Dov Michael Mittelman, Esq.
Stein Saks, PLLC
285 Passaic Street
Hackensack, NJ 07601
Tel: (201) 282-6500
Email: mittelmandov@yahoo.com
BEZEQ THE ISRAEL: Provides Update on Class Action Certification
---------------------------------------------------------------
Bezeq The Israel Telecommunications Corporation Ltd., in its Form
6-K filing with the U.S. Securities and Exchange Commission for the
month of March 2019, disclosed that further to the Company's
immediate report of November 5, 2015, and the description in
Section 2.18(d) of the chapter containing a description of the
corporation's business affairs in the Company's periodic report for
2017, regarding a motion to certify a class action on grounds that
the Company took advantage of its monopolistic position and
prevented competition in the communications market, inter alia, by
acting to delay and block the wholesale market reform, immediate
supplementary notification is hereby provided that on March 3,
2019, the Company informed the court that in light of the
anticipated replacement of the panel in the case if the class
action it certified, it agrees to the court's proposal to certify
the class action certification motion without the court providing a
reasoned decision on the matter and while reserving all of its
arguments for the hearing on the claim on the merits.
It should be noted that in the same notice, the Company notified
the court that on February 25, 2019, it filed an administrative
petition against the decision of the Director General of the
Ministry of Communications dated December 27, 2018, regarding a
supervision and financial sanctions report concerning the wholesale
telephony market. [GN]
BHP: Aware of Problems at Samarco Dam, Court Documents Allege
-------------------------------------------------------------
Lia Timson, writing for The Sydney Morning Herald, reports that
senior executives working for mining giants BHP and Vale were aware
of significant problems at their jointly-owned Samarco dam years
before it burst causing one of Brazil's worst environmental
disasters, court documents allege.
The 2015 collapse of Samarco's tailings dam killed 19 people and
spilled about 40 million cubic metres of sludge into 600 kilometres
of river, causing economic and environmental chaos as well
destroying the villages of Bento Rodrigues, Paracatu de Baixo and
Gesteira.
Court documents including board meeting minutes and expert reports
suggest Samarco executives and board members, including BHP and
Vale-appointed directors, knew of mounting problems with the dam's
structure and were aware of adverse risk assessments years before
the collapse.
However, the directors did not have downstream villages including
Bento Rodrigues relocated despite the board repeatedly expressing
concerns about the dam and asking for relocation costs.
The documents form part of a criminal case against 21 Samarco
employees and directors, whom Brazilian federal prosecutors accuse
of negligent homicide and environmental crimes.
Individuals charged include BHP's former nominees to the Samarco
board Jimmy Wilson, Margaret Beck, Jeff Zweig and Marcus Randolph.
Mr Wilson and Mr Randolph have both served on BHP's group
management committee but no longer work at the company.
Mr Wilson is now at grain growers cooperative CBH while Mr Randolph
moved on to chair US-based Boart Longyear. Ms Beck, a 33-year BHP
veteran, left the company last month.
Several Samarco executives, the company, BHP Billiton Brazil and
Vale were also charged. The charges are expected to be strongly
contested with BHP publicly vowing to staunchly defend the case.
The minutes of meetings held in Perth, London, Melbourne, Dubai and
in Brazil, and obtained by The Age and The Sydney Morning Herald,
suggest the Samarco board was aware of problems shortly after the
dam began operating in late 2008.
Minutes from a July 2009 meeting attended by Mr Randolph and
another BHP representative John Slaven, note the board was "worried
about the efficacy of the proposed solution" to fix seepages at the
dam. Seepages can be an early sign of potential dam weakness.
The board appointed a Vale team to supervise Samarco's
investigation and report back.
That report was presented in Melbourne later that year. The board,
including BHP's representatives Mr Randolph, Mr Slaven and Ian
Ashby, were told investigators had concluded the leaks were caused
by a construction fault, remediation had commenced and plans were
in place to restart operations. The board approved the report, but
problems persisted.
Mr Slaven said he left the board in 2010 and declined to comment on
matters subject to legal proceedings, as did Mr Randolph. Mr Ashby
and other directors did not reply to requests for comment. Neither
Mr Slaven nor Mr Ashby have been charged.
Constant preocupation
In 2011, an independent Tailing Review Board panel recommended to
the board that Samarco improve the dam and communicate an emergency
plan to nearby villages.
The board then requested Samarco "evaluate the cost and
implications of relocating of downstream communities" and
investigate alternative solutions for storing mining waste, given
its plans to expand the mine's output and thus increase waste
volume.
Crucially, it requested Samarco "maintain focus on the identified
catastrophic risks, taking necessary steps to avoid them".
Another call for Samarco to talk to the local communities about
emergency plans and set up a warning siren came again in 2013. A
technical report commissioned by state authorities as part of the
company's operational licence renewal process made an emergency
contingency plan conditional for approval "given the presence of
[nearby] Bento Rodrigues".
But a siren was not installed and local residents say drills never
took place even though the licence was granted.
"Safety, leave the area when siren sounds". A siren system and
evacuation route signs were only installed in Bento Rodrigues,
Brazil, after the 2015 dam disaster.
The board, meeting in Dubai that year, was recorded as emphasising
that "the tailings were still a point of great preoccupation,
especially considering future storage needs". They requested a
contingency plan by the following meeting.
The minutes of that and subsequent meetings do not record any such
discussion.
Two years later and four months before the dam failed, two external
inspectors and a Samarco employee again observed further leaks.
Monitoring equipment showed the dam's risk rating was at 1.3,
exceeding a baseline 1.5 rating which was the minimum to avoid
failure. Even so, consultants VOGBR issued a report declaring the
dam stable. Prosecutors point to this as a "false and misleading
declaration of stability".
At the last board meeting before the dam collapsed, held in Perth
on August 8, 2015, minutes record a recommendation for a study to
potentially raise the dam wall further to "delay requirements for a
new dam . . . until 2023".
On November 5, the dam failed with consequences similar to the
joint-venture's worst risk assessments.
Brazilian federal prosecutor Jose Adercio Sampaio told The Age and
The Sydney Morning Herald late last year he was confident of
securing convictions.
"The accusation is that they knew the risks. They knew it could
burst," he said. "They should have taken steps to avoid the crime;
instead, they increased production."
A BHP spokesperson said the company had "no reason to believe BHP
people knew the dam was at risk of failing".
"We reject outright criminal charges against the company and its
employees and will continue in our defence and support of affected
individuals," it said.
A BHP statement said that monitoring and alarm systems at all sites
had been reviewed and "all significant tailings storage facilities
have emergency response plans in place".
Phi Finney McDonald Principal Lawyer Brett Spiegel said the firm
was "looking forward to holding BHP accountable" through the
Impiombato class action in Melbourne.
The action alleges BHP knew of the risks by at least September 2014
"and neither informed the public, nor took the necessary action to
prevent the dam's collapse".
The disaster has cost the joint venture close to $2 billion in
compensation to date, on top of fines and production losses. An
additional $55 billion civil lawsuit brought by Brazilian
prosecutors is suspended until 2020.
Last month, another Vale-owned tailings dam collapsed killing an
estimated 300 people, also without alarms sounding.
The latest disaster put Vale and all its operations on notice. It
also put a hold on new licences, including the one Samarco was
hoping to obtain to restart operations this year.
Over the weekend, Vale chief executive Fabio Schvartsman and
several other senior executives resigned after state and federal
prosecutors recommended their removal late on March 1.
At its results announcements this month, BHP chief executive Andrew
Mackenzie said "we are committed to learn from this".
"We will act with even greater care and attention to make sure our
employees and communities are not in harm's way." [GN]
BIG FISH: Faces Class Action in Wash. Over Social-Game Offerings
----------------------------------------------------------------
Flush Draw reports that the latest in a running series of
class-action lawsuits targeting social-gaming offerings available
in Washington State has been filed in the U.S. District Court for
the Western District of Washington. This latest lawsuit over
whether social-gaming offerings constitute a violation of
Washington State gambling laws targets Big Fish Gaming, the
one-time subsidiary of Churchill Downs, Inc. (CDI) now owned by
Aristocrat Technologies, Inc.
The lawsuit was brought on behalf of a Florida resident, Manasa
Thimmegowda, on behalf of an unknown number of possible class
members, and it's not the first such lawsuit to target
Seattle-based Big Fish since an appellate-court reversal in another
case in 2018 opened the door to such possible claims.
Among the issues to be addressed in the lawsuit are Big Fish's
ongoing offering of such things as slots titles that are initially
"free to play" but offer players the opportunity to purchase
additional coins, even though those purchased coins can never be
cashed out. The lawsuit accuses Big Fish Games, Inc., current
owners Aristocrat Technologies Inc. and prior owners CDI of
operating illegal online casino games.
"As we allege in our complaint, the mobile gambling industry, by
design, preys on consumers by bringing additive gambling
opportunities directly into their homes," said Christopher Dore, an
attorney from Edelson PC, a firm specializing in online
consumer-protection matters. Dore also told Seattle's KOMO News,
"We look forward to proving that companies are aware that many of
their customers fall victim to these gambling games, with
significant negative impacts on their lives financially and
otherwise."
The lawsuit alleges that Big Fish Casino, the primary revenue
generator in the Big Fish product family, brings in over $100
million annually, while the company as a whole generates over $200
million in annual revenue.
Several lawsuits were filed against social-gaming companies after
an appellate court reversed an earlier ruling in the long-running
Kater v Churchill Downs Inc. case, which dates back to 2015, and
concluded that the sale of coin packages violated Washington's
gambling codes. That case marches on, with Churchill Downs failing
more recently in an attempt to invoke arbitration language embedded
in its terms of service, and also by selling Big Fish in its
entirety to Aristocrat Technologies. As part of the terms of sale
to Aristocrat in 2018, Churchill Downs was forced to indemnify
against the possible losses and expenses incurred as a result of
the Kater v. Churchill Downs case. CDI has failed to date in its
legal attempts to severe parent company CDI from the possible
liabilities incurred by the wholly-owned Big Fish subsidiary, which
CDI itself acquired in 2014.
The whole mess triggered several other firms to pull their
free-play offerings from Washington State last year, as the first
flurry of cases targeting major operators were filed. These six
cases alleging "free" social-gaming offerings to actually be
illegal under Washington were filed in April and May of 2018:
Wilson v. PTT, LLC, No. 2:18-cv-05275-RBL (W.D. Wash. Apr. 6,
2018);
Wilson v. Huuuge, Inc., No. 2:18-cv-05276-RBL (W.D. Wash. Apr. 6,
2018);
Wilson v. Playtika, No. 2:18-cv-05277-RBL (W.D. Wash. Apr. 6,
2018);
Benson v. Double Down, No. 2:18-cv-00525-RBL (W.D. Wash. Apr. 9,
2018);
Fife v. Scientific Games, No. 2:18-cv-00565-RBL (W.D. Wash. Apr.
17, 2018);
Bell v. Game Show Network, LLC, No. 3:18-cv-05393-RBL (W.D. Wash.
May 15, 2018).
Most of the lawsuits (including the one targeting Game Show
Network) were filed by the same law firm, Tousley Brain Stephens.
Tousley is not the law firm behind this latest case. All seven
cases -- eight, if one includes the initial Kater v. Churchill
Downs matter -- remain active. [GN]
BIMBO BAKERIES: Tiscareno's Bid to Certify Class Denied as Moot
---------------------------------------------------------------
The Hon. Chad F. Kenney entered an order in the lawsuit titled KATY
TISCARENO v. BIMBO BAKERIES USA, INC., Case No. 2:18-cv-01167-CFK
(E.D. Pa.), denying as moot the Plaintiff's:
-- Motion for Conditional Collective Action Certification; and
-- Motion for Leave to File Exhibits Under Seal.[CC]
BRISTOL-MYERS SQUIBB: Investors Challenge Celgene Acquisition
-------------------------------------------------------------
Bristol-Myers Squibb Company said in its Form 10-K report filed
with the U.S. Securities and Exchange Commission on February 25,
2019, for the fiscal year ended December 31, 2018, that the company
has been named as defendant in multiple class action lawsuits
related to the acquisition of biopharmaceutical company Celgene
Corp.
As of February 20, 2019, nine complaints were filed by Celgene
shareholders in the U.S. District Court for the District of
Delaware, U.S. District Court for the District of New Jersey, the
U.S. District Court for the Southern District of New York and the
Court of Chancery of the State of Delaware seeking to enjoin the
Company's proposed acquisition of Celgene.
The complaints in these actions name as defendants Celgene and the
members of Celgene's board of directors. Four of these complaints
also name the Company and Burgundy Merger Sub, Inc., a wholly-owned
subsidiary of the Company that was formed solely for the purpose of
completing the pending acquisition of Celgene and will be merged
with and into Celgene upon the completion of the acquisition, as
defendants.
Of the complaints naming the Company as a defendant, three are
styled as putative class actions. The plaintiffs allege violations
of various federal securities laws and breaches of fiduciary duties
in connection with the acquisition of Celgene by the Company.
Separately, a tenth complaint styled as a putative class action was
filed in the Court of Chancery of the State of Delaware on behalf
of the Company's shareholders naming members of the Company's board
of directors as defendants.
This complaint alleges that each of the members of the Company's
board of directors breached his or her fiduciary duties to the
Company and its shareholders by failing to disclose material
information about the pending acquisition.
The Company, Burgundy Merger Sub and Celgene intend to defend
themselves vigorously in these lawsuits.
Bristol-Myers Squibb Company discovers, develops, licenses,
manufactures, markets, distributes, and sells biopharmaceutical
products worldwide. The company offers drugs in oncology,
immunoscience, cardiovascular, and fibrotic diseases. The company
was formerly known as Bristol-Myers Company and changed its name to
Bristol-Myers Squibb Company in 1989. Bristol-Myers Squibb Company
was founded in 1887 and is headquartered in New York, New York.
CABLEVISION SYSTEMS: Bid to Certify Class in Jensen Suit Denied
---------------------------------------------------------------
In the case, PAUL JENSEN, individually and on behalf of all others
similarly situated, Plaintiff, v. CABLEVISION SYSTEMS CORPORATION,
a Delaware Corporation; ALTICE N.V., and DOES 1 through 100,
inclusive, Defendants, Case No. 2:17-cv-100 (ADS)(AKT)(E.D. N.Y.),
Judge Arthur D. Spatt of the U.S. District Court for the Eastern
District of New York
On July 16, 2015, Jensen commenced the action individually and on
behalf of others similarly situated against the Defendants for
damages stemming from alleged violations of the Computer Fraud and
Abuse Act ("CFAA") and New York General Business Law ("GBL"). The
case arises from allegations by the Plaintiff that the Defendants
used the Plaintiff's wireless router, which was leased from the
Defendants, to broadcast a public Wi-Fi network, without the
Plaintiff's authorization. In a Memorandum of Decision & Order,
dated Sept. 27, 2017, the Court dismissed the Plaintiff's CFAA
claim, leaving the state law claim as the only remaining cause of
action.
On Feb. 9, 2018, the Plaintiff filed a motion to certify a New
York-based class for his remaining cause of action. Specifically,
Jensen seeks to represent a class of all natural persons who have
subscribed to Cablevision's Optimum Online Service in the State of
New York and who, as a result, have leased wireless routers that
broadcast an Optimum Wi-Fi Hotspot. In this motion, he relies on
Dr. Jennifer Golbeck and Dr. Mitchell Smooke for his argument
regarding class-wide injury.
On April 30, 2018, the Defendants have moved to exclude the reports
and testimony of Dr. Golbeck and Dr. Smooke. They seek to exclude
the expert report and testimony of Dr. Smooke on the basis that he
is not qualified to render expert opinions in the case and that the
opinions expressed in the expert report do not meet the standards
for admissibility outlined in Daubert and its progeny. The
Defendants also argue that the Court should exclude the expert
report and testimony of Dr. Golbeck because she lacks the
qualifications to render expert opinions on the case and the
opinions contained in her expert report do not meet the standards
for admissibility outlined in Daubert and its progeny.
Judge Spatt rules that Dr. Smooke is qualified to offer his expert
report at the class certification stage. However, after evaluating
Dr. Smooke's expert report, he finds that he fails to employ the
same level of intellectual rigor that characterizes the practice of
an expert in the relevant field. He finds that Dr. Smooke's expert
report does not assist the trier of fact in determining whether a
class-wide injury existed in the class certification context. As
such, he excludes Dr. Smooke's expert report from consideration
during its evaluation of the Plaintiff's motion for class
certification.
Next, he rules that Dr. Golbeck is qualified to offer her expert
report at the class certification stage. However, he finds that
Dr. Golbeck is simply repeating otherwise admissible evidence. She
has no personal knowledge regarding any of the information and it
is only presented to the fact-finder for the purpose of repeating
the Plaintiff's factual narrative. The Judge has no reason to
believe that Dr. Golbeck was relying on "junk science" in reaching
her conclusions, such that he should preclude such information from
reaching the jury. Therefore, he denied the Defendants' motion to
preclude Dr. Golbeck's report. Accordingly, the Judge excludes
paragraphs 30 to 57 in Dr. Golbeck's expert report from
consideration during its evaluation of the Plaintiff's motion for
class certification.
Turning to the Plaintiff's motion for class certification, Judge
Spatt finds that the Plaintiff has not satisfied Rule 23(a)'s
typicality requirement. The existence of an arbitration provision
that potentially involves over 99% of the proposed class impacts
the typicality of the Plaintiff's claim. Further, as he has
already determined that the claims or defenses of Jensen are
atypical of the claims or defenses of the proposed class, the Judge
declines to rule on the remainder of the Defendants' arguments.
He also finds that the Plaintiff has not satisfied Rule 23(a)'s
adequacy requirement. The interests of the absent class members do
not coincide with Jensen's interests because the vast majority of
the potential class is subject to unique defenses which go to the
heart of the litigation. Because the Plaintiff cannot adequately
represent the interests of those putative class members who are
potentially bound by the arbitration and class action waiver
provisions, the Plaintiff is not an adequate representative of the
class. As he has already determined that Jensen is an inadequate
representative of the proposed class, the Judge declines to rule on
the remainder of the Defendants' arguments.
The Judge further finds that the Plaintiff has not satisfied Rule
23(b)(3)'s predominance requirement. He holds that there is
undoubtedly an economic benefit that customers receive by being
provided with a free wireless router. Further, the installation of
a Wi-Fi network that is accessible to customers outside of their
home provides a significant benefit to Cablevision customers. For
customers who wanted the router either regardless of or because of
the Optimum Public Wi-Fi network, there was no cognizable Section
349 injury. To ascertain which New York customers' individual
preferences requires individual inquiries would predominate over
common questions.
The Judge finds that the Plaintiff has satisfied Rule 23(b)(3)'s
superiority requirement. He holds that the case is precisely the
type of "negative value" case for which the class action mechanism
was designed. However, the failure to satisfy Rule 23(b)(3)'s
predominance requirement precludes class certification under Rule
23(b)(3).
In the alternative, the Plaintiff seeks class certification of an
injunctive class under Rule 23(b)(2). As he has already determined
that the Plaintiff failed to satisfy Rule 23(a)'s requirements, the
Judge is unable to certify a Rule 23(b)(2) injunctive class.
For the reasons set forth, Judge Spatt granted in part and denied
in part the Defendants' motion to exclude the report and testimony
of Dr. Smooke and Dr. Golbeck. He denied the Plaintiff's motion
for class certification pursuant to Rule 23.
A full-text copy of the Court's Feb. 27, 2019 Memorandum of
Decision and Order is available at https://is.gd/QjXnII from
Leagle.com.
Paul Jensen, individually and on behalf of all others situated,
Plaintiff, represented by David F. Slade, Carney Bates & Pulliam,
PLLC, pro hac vice, Gillian Wade -- gwade@mjfwlaw.com -- Milstein,
Adelman, Jackson, Fairchild & Wade, LLP, pro hac vice, Joseph Henry
Bates -- hbates@cbplaw.com -- Carney Bates & Pulliam, PLLC, pro hac
vice, Brian Tse-Hua Ku, Ku & Mussman, P.A., 11098 Biscayne Blvd.
Ste. 301Miami, FL 33161-7491, Michael R. Casey, The Casey Law Firm
LLC, pro hac vice & Sara Dawn Avila -- savila@mjfwlaw.com --
Milstein Adelman LLP, pro hac vice.
Cablevision Systems Corporation, a Delaware Corporation & Altice
N.V., Defendants, represented by Jason I. Kirschner --
jkirschner@mayerbrown.com -- Mayer Brown LLP, Matthew D. Ingber --
mingber@mayerbrown.com -- Mayer Brown LLP &Archis A. Parasharami --
aparasharami@mayerbrown.com -- Mayer Brown LLP.
CALIFORNIA TEACHERS: Imhoff et al. Suit Transferred to C.D. Cal.
----------------------------------------------------------------
The case, James Imhoff and Lucille Imhoff, as individuals, and on
behalf of others similarly situated, the Plainitff, v. California
Teachers Association; Colusa Educators Association, as
representative of the class of all chapters and affiliates of the
California Teachers Association, the Respondents, Case No.
2:18-cv-02934 (Filed Nov. 7, 2018), was transferred from the U.S.
District for the Eastern District of California, to the U.S
District Court for the Central District of California (Western
Division - Los Angeles) on March 13, 2019. The Central District of
California Court Clerk assigned Case No. 2:19-cv-01841-VAP-JPR to
the proceeding. The case is assigned to the Hon. Judge Virginia A.
Phillips.
James Imhoff and Lucille Imhoff are public-school teachers who
bring this class action on behalf of themselves and all others
similarly situated, seeking redress for the Defendants' violations
of their constitutionally protected rights.
According to the complaint, the Defendants violated the
representative plaintiffs' rights by establishing an
unconstitutional "agency shop," where employees were forced to
either join the union or else pay "fair share service fees" as a
consequence for refusing to join. Mr. and Mrs. Imhoff refused to
join or financially support the California Teachers Association
(CTA) because it advocates for policies that contradict their
religious beliefs and, as a consequence, they were forced to pay
money to a third-party charity in lieu of paying "fair share
service fees" to the union.
The California Teachers Association, initially established in 1863,
is one of the largest and most powerful teachers' unions in
California politics. It is based in Burlingame, and its current
president is Eric C. Heins.[BN]
Counsel for the Plaintiffs and Proposed Class:
Jonathan F. Mitchell, Esq.
MITCHELL LAW PLLC
106 East Sixth Street, Suite 900
Austin, Texas 78701
Telephone: (512) 686 - 3940
- and -
Bradley Benbrook, Esq.
BENBROOK LAW GROUP, PC
400 Capitol Mall, Suite 2530
Sacramento, CA 95814
Telephone: (916) 447-4900
Attorneys for the Respondents:
Scott A Kronland, Esq.
VALTSHULER BERZON LLP
177 Post Street Suite 300
San Francisco, CA 94108
Telephone: (415) 421-7151
Facsimile: (415) 362-8064
E-mail: skronland@altber.com
CANADA: Faces Class Action Over Cannabis License
------------------------------------------------
Matthew Bingley, writing for Global News, reports that though its
name suggests otherwise, marijuana isn't on the menu at Cannabis
and Coffee -- and, for that reason, its owners are suing the
provincial government.
Last summer, Chris James opened the café in anticipation of
expanding into a legal dispensary once legalization went into
effect. After investing in signage, marketing and knowledgeable
staff, James was anticipating a lucrative investment.
But the Ford government's decision to award only 25 locations with
retail cannabis licences through a lottery has left James' business
on the outside looking in.
His legal team is serving the province with a $1.1-million
lawsuit.
"This is about the fact that the government led people by the
nose," said lawyer Daniel Sommers.
"And at the last moment, the government presented this completely
arbitrary and completely narrowly focused regime."
Mr. Sommers said his client was positioned to have the experience
needed to hit the ground running.
On top of the money, Mr. Sommers said the lawsuit is also seeking
to have James awarded with that elusive retail cannabis licence.
"He is eager to engage in the market. He's got the knowledge, he's
got the creativity and he's got a great plan to do well in this
sector," said Mr. Sommers.
While the coffee shop's branding is full of images related to
marijuana and various paraphernalia, actual cannabis isn't sold
there.
Barista Michael Caballero said that customers looking to buy weed
come into the store about once every half-hour.
Mr. Cabellero said it's frustrating to have to turn so many
potential customers away.
"We have to keep turning people away, but what else can we do?" he
said.
While James already has a lawsuit in the works, Mr. Sommers said
his firm has been approached by about 30 other jilted businesses.
Enough, he says, that a class-action lawsuit against the provincial
government is in the works.
The provincial government did not respond to an interview request
from Global News. [GN]
CAP BEAUTY: Traynor Asserts Breach of Disabilities Act
------------------------------------------------------
Cap Beauty, LLC is facing a class action lawsuit filed pursuant to
the Americans with Disabilities Act. The case is styled as Yaseen
Traynor, on behalf of himself and all others similarly situated,
Plaintiff v. Cap Beauty, LLC, Defendant, Case No. 1:19-cv-02111
(S.D. N.Y., March 7, 2019).
CAP Beauty is NYC's natural beauty destination located in
Manhattan's West Village featuring natural skin care, natural hair
care & natural makeup.[BN]
The Plaintiff is represented by:
Dov Michael Mittelman, Esq.
Stein Saks, PLLC
285 Passaic Street
Hackensack, NJ 07601
Tel: (201) 282-6500
Email: mittelmandov@yahoo.com
CBOE GLOBAL: Bid to Dismiss VIX Litigation in Illinois Underway
---------------------------------------------------------------
Cboe Global Markets, Inc. said in its Form 10-K report filed with
the U.S. Securities and Exchange Commission on February 22, 2019,
for the fiscal year ended December 31, 2018, that a motion to
dismiss is pending in the putative class action lawsuit related to
the Cboe Volatility Index methodology (VIX).
On March 20, 2018, a putative class action complaint captioned
Tomasulo v. Cboe Exchange, Inc., et al., No. 18-cv-02025 was filed
in federal district court for the Northern District of Illinois
alleging that the Company intentionally designed its products,
operated its platforms, and formulated the method for calculating
VIX and the Special Opening Quotation, (i.e., the special VIX value
designed by the Company and calculated on the settlement date of
VIX derivatives prior to the opening of trading), in a manner that
could be collusively manipulated by a group of entities named as
John Doe defendants.
A number of similar putative class actions, some of which do not
name the Company as a party, were filed in federal court in
Illinois and New York on behalf of investors in certain
volatility-related products. On June 14, 2018, the Judicial Panel
on Multidistrict Litigation centralized the putative class actions
in the federal district court for the Northern District of
Illinois.
On September 28, 2018, plaintiffs filed a master, consolidated
complaint that is a putative class action alleging various claims
against the Company and John Doe defendants in the federal district
court for the Northern District of Illinois. The claims asserted
against the Company consist of a Securities Exchange Act fraud
claim, three Commodity Exchange Act claims and a state law
negligence claim.
Plaintiffs request a judgment awarding class damages in an
unspecified amount, as well as punitive or exemplary damages in an
unspecified amount, prejudgment interest, costs including
attorneys' and experts' fees and expenses and such other relief as
the court may deem just and proper.
On November 19, 2018, the Company filed a motion to dismiss the
master consolidated complaint and the plaintiffs filed their
response on January 7, 2019. The Company filed its reply on January
28, 2019.
Cboe Global said, "Given the preliminary nature of the proceedings,
the Company is still evaluating the facts underlying the
complaints, however, the Company currently believes that the claims
are without merit and intends to litigate the matter vigorously.
The Company is unable to estimate what, if any, liability may
result from this litigation."
Cboe Global Markets, Inc., through its subsidiaries, operates as an
options exchange in the United States. It operates in five
segments: Options, U.S. Equities, Futures, European Equities, and
Global FX. Cboe Global Markets, Inc. was founded in 1973 and is
headquartered in Chicago, Illinois.
CBOE GLOBAL: Providence's Securities Suit v. Bats Global Ongoing
----------------------------------------------------------------
Cboe Global Markets, Inc. said in its Form 10-K report filed with
the U.S. Securities and Exchange Commission on February 22, 2019,
for the fiscal year ended December 31, 2018, that the company's
wholly owned subsidiary Bats Global Markets, Inc., now known as
Cboe Bats, LLC, continues to defend itself against a securities
class action lawsuit initiated by the City of Providence, Rhode
Island.
On April 18, 2014, the City of Providence, Rhode Island filed a
securities class action lawsuit in the Southern District of New
York against Bats and Direct Edge Holdings LLC, as well as 14 other
securities exchanges.
The action purports to be brought on behalf of all public investors
who purchased and/or sold shares of stock in the United States
since April 18, 2009 on a registered public stock exchange
("Exchange Defendants") or a U.S.-based alternate trading venue and
were injured as a result of the alleged misconduct detailed in the
complaint, which includes allegations that the Exchange Defendants
committed fraud through a variety of business practices associated
with, among other things, what is commonly referred to as high
frequency trading.
On May 2, 2014 and May 20, 2014, American European Insurance
Company and Harel Insurance Co., Ltd. each filed substantially
similar class action lawsuits against the Exchange Defendants which
were ultimately consolidated with the City of Providence, Rhode
Island securities class action lawsuit. On June 18, 2015, the
Southern District of New York (the "Lower Court") held oral
argument on the pending Motion to Dismiss and thereafter, on August
26, 2015, the Lower Court issued an Opinion and Order granting
Exchange Defendants' Motion to Dismiss, dismissing the complaint in
full.
Plaintiff filed a Notice of Appeal of the dismissal on September
24, 2015 and its appeal brief on January 7, 2016. Respondent's
brief was filed on April 7, 2016 and oral argument was held on
August 24, 2016. Following oral argument, the Court of Appeals
issued an order requesting that the SEC submit an amicus brief on
whether the Lower Court had jurisdiction and whether the Exchange
Defendants have immunity in the claims alleged.
The SEC filed its amicus brief with the Court of Appeals on
November 28, 2016 and Plaintiff and the Exchange Defendants filed
their respective supplemental response briefs on December 12, 2016.
On December 19, 2017, the Court of Appeals reversed the Lower
Court's dismissal and remanded the case back to the Lower Court. On
March 13, 2018, the Court of Appeals denied the Exchange
Defendants' motion for re-hearing. The Exchange Defendants filed
their opening brief for their motion to dismiss May 18, 2018,
Plaintiffs' response was filed June 15, 2018 and the Exchange
Defendants' reply was filed June 29, 2018.
Cboe Global said, "Given the preliminary nature of the proceedings,
the Company is unable to estimate what, if any, liability may
result from this litigation. However, the Company believes that the
claims are without merit and intends to litigate the matter
vigorously."
No further updates were provided in the Company's SEC report.
Cboe Global Markets, Inc., through its subsidiaries, operates as an
options exchange in the United States. It operates in five
segments: Options, U.S. Equities, Futures, European Equities, and
Global FX. Cboe Global Markets, Inc. was founded in 1973 and is
headquartered in Chicago, Illinois.
CERES, CA: $110K Settlement in Quiroz FLSA Suit Gets Court Approval
-------------------------------------------------------------------
In the case, CARLOS QUIROZ, on behalf of himself and all similarly
situated individuals, Plaintiffs, v. CITY OF CERES, Defendant, Case
No. 1:17-cv-00444-DAD-BAM (E.D. Cal.), Judge Dale A. Drozd of the
U.S. District Court for the Eastern District of California granted
the parties' joint motion for approval of the settlement
agreement.
On Feb. 17, 2017, the Plaintiff commenced the action alleging
violations of the Fair Labor Standards Act ("FLSA"), based on the
Defendant's use of an illegal compensation computation method which
under-calculated the Plaintiff's regular rate of pay and resulted
in underpayment with respect to overtime hours. In his complaint,
he alleges that he and the collective members were denied proper
compensation in violation of the FLSA when the Defendant failed to
include all statutorily required forms of compensation in the
regular rate of pay used to calculate the Plaintiff's overtime
compensation.
Specifically, the Plaintiff alleges that the Defendant excluded
cash paid to employees in lieu of health care benefits ("CIL
compensation") from the regular rate, thereby resulting in the
systematic underpayment of overtime compensation and cash outs of
compensatory time off ("CTO"). The Plaintiff also alleges that
payments defendant made for the collective's medical benefits were
not made pursuant to a "bona fide" plan within the meaning of 29
C.F.R. Section 778.215. Finally, the Plaintiff alleges that the
Defendant excluded payments in lieu of observing holidays ("HIL
compensation") when calculating the regular rate of pay for a
subgroup of plaintiffs employed by defendant as firefighters.
On June 22, 2017, the Court conditionally certified a collective as
comprising all current or former employees of the City of Ceres who
have worked statutory overtime and received cash payments in lieu
of health care benefits or savings payments, between Feb. 17, 2014
and the date of entry of the order, if they chose coverage through
the City that does not utilize the full dollar allowance.
On Oct. 20, 2017, the Court conditionally certified another
collective as comprising all current or former employees of the
City of Ceres who have worked statutory overtime and received
healthcare contributions on their behalf towards the purchase of
healthcare benefits within the same work period/work week between
Aug. 21, 2014 through Dec. 31, 2016. A total of 20 current and
former employees opted into the collective.
On Oct. 16, 2018, the parties notified the court that they had
conditionally settled the matter, subject to the approval of the
City of Ceres' city council. The parties were subsequently
directed to file dispositional documents and the settlement
agreement for Court approval. On Dec. 28, 2018, the parties
submitted the pending motion for approval of the settlement
agreement.
Under the terms of the settlement agreement, the Defendant will pay
the Plaintiffs a total sum of $109,878.96, which represents the
maximum value of the claims if the Plaintiff and the putative class
members were to prevail on every disputed issue. The Plaintiffs'
counsel will be paid $40,121.04 in attorneys' fees and costs, and
the Plaintiffs will receive $109,878.96, for a total recovery of
$150,000.
Judge Drozd concludes that the FLSA settlement is fair and
reasonable. He finds that (i) the parties had sufficient
information to reach an appropriate settlement; (ii) further
prolonging the litigation would generate needless litigation
expenses for both sides, and that both the Plaintiff and the
Defendant will likely benefit financially by settling the action;
(iii) the scope of the waiver and release provisions in the
proposed settlement agreement appropriately track the breadth of
the Plaintiffs' FLSA claims; (iv) all the Plaintiffs had an
opportunity to review the terms of the settlement agreement, and
all have accepted its terms; and (v) the rates requested by the
Plaintiffs' counsel in prior cases before the Court are sufficient
for this purpose and will employ those rates in calculating the
lodestar.
For the forgoing reasons, the Judge approved parties' settlement
agreement including the award of attorneys' fees and costs, as
fair, reasonable, and just in all respects. The parties will
perform the settlement agreement in accordance with its terms. He
dismissed the case with prejudice. The Clerk of the Court is
directed to close the case.
A full-text copy of the Court's March 1, 2019 Order is available at
https://is.gd/Lsnbuo from Leagle.com.
Carlos A. Quiroz, Plaintiff, represented by Ace Thomas Tate,
Mastagni Holstedt, APC, David Emilio Mastagni --
davidm@mastagni.com -- Mastagni Holstedt, APC, Ian Barclay Sangster
-- isangster@mastagni.com -- Mastagni Holstedt, APC & Isaac Sean
Stevens -- istevens@mastagni.com -- Mastagni Holstedt, APC.
City of Ceres, Defendant, represented by Jesse Jeremy Maddox --
jmaddox@lcwlegal.com -- Liebert Cassidy Whitmore & Michael David
Youril -- jmaddox@lcwlegal.com -- Liebert Cassidy Whitmore.
CHARLES SCHWAB: Cargo Order Routing Litigation Ongoing
------------------------------------------------------
The Charles Schwab Corporation said in its Form 10-K report filed
with the U.S. Securities and Exchange Commission on February 22,
2019, for the fiscal year ended December 31, 2018, that the company
continues to defend the so-called Cargo Order Routing Litigation.
On July 13, 2016, a securities class action lawsuit was filed in
the U.S. District Court for the Northern District of California on
behalf of a putative class of customers executing equity orders
through CS&Co.
The lawsuit names CS&Co and The Charles Schwab Corporation (CSC) as
defendants and alleges that an agreement under which CS&Co routed
orders to UBS Securities LLC between July 13, 2011 and December 31,
2014 violated CS&Co's duty to seek best execution.
Plaintiffs seek unspecified damages, interest, injunctive and
equitable relief, and attorneys' fees and costs.
After a first amended complaint was dismissed with leave to amend,
plaintiffs filed a second amended complaint on August 14, 2017.
Defendants again moved to dismiss, and in a decision issued
December 5, 2017, the court denied the motion.
Defendants have answered the complaint to deny all allegations, and
intend to vigorously contest the lawsuit.
No further updates were provided in the Company's SEC report.
The Charles Schwab Corporation, through its subsidiaries, provides
wealth management, securities brokerage, banking, asset management,
custody, and financial advisory services. The company operates
through two segments, Investor Services and Advisor Services. The
Charles Schwab Corporation was founded in 1971 and is headquartered
in San Francisco, California.
CHARLES SCHWAB: Total Bond Market Fund(TM) Litigation Concluded
---------------------------------------------------------------
The Charles Schwab Corporation said in its Form 10-K report filed
with the U.S. Securities and Exchange Commission on February 22,
2019, for the fiscal year ended December 31, 2018, that the Total
Bond Market Fund(TM) Litigation has been concluded.
The Company had been responding to a class action lawsuit in the
U.S. District Court for the Northern District of California on
behalf of investors in the Schwab Total Bond Market Fund. On
December 13, 2018, following dismissal of its fourth amended
complaint and unsuccessful appeals to the Ninth Circuit Court of
Appeals, plaintiff stipulated and agreed to dismissal of all
claims, concluding the case.
The Charles Schwab Corporation, through its subsidiaries, provides
wealth management, securities brokerage, banking, asset management,
custody, and financial advisory services. The company operates
through two segments, Investor Services and Advisor Services. The
Charles Schwab Corporation was founded in 1971 and is headquartered
in San Francisco, California.
CHATHAM LODGING: Ruffy and Doonan Labor Suits Still Ongoing
-----------------------------------------------------------
Chatham Lodging Trust said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on February 25, 2019, for
the fiscal year ended December 31, 2018, that that Island
Hospitality Management LLC continues to defend itself from two
class action suits entitled, Ruffy, et al, v. Island Hospitality
Management, LLC, et al. and Doonan, et al, v. Island Hospitality
Management, LLC, et al.
The nature of the operations of the Company's hotels exposes those
hotels, the Company and the Operating Partnership to the risk of
claims and litigation in the normal course of their business.
Island Hospitality Management Inc. (IHM) is currently a defendant
in two class action lawsuits pending in the Santa Clara County
Superior Court.
The first class action lawsuit was filed on October 21, 2016 under
the title Ruffy, et al, v. Island Hospitality Management, LLC, et
al. Case No. 16-CV-301473 and the second class action lawsuit was
filed on March 21, 2018 under the title Doonan, et al, v. Island
Hospitality Management, LLC, et al. Case No 18-CV-325187.
The class actions relate to hotels operated by IHM in the state of
California and owned by affiliates of the Company and the NewINK
JV, and/or certain third parties.
The complaint alleges various wage and hour law violations based on
alleged misclassification of certain hotel managerial staff and
violation of certain California statutes regarding incorrect
information contained on employee paystubs. The plaintiffs seek
injunctive relief, money damages, penalties, and interest.
Chatham Lodging said, "None of the potential classes has been
certified and we are defending our case vigorously. As of December
31, 2018, included in accounts payable and accrued expenses is $0.1
million which represents an estimate of the Company's total
exposure to the litigations based on standard indemnification
obligations under hotel management agreements with IHM."
No further updates were provided in the Company's SEC report.
Chatham Lodging Trust is a self-advised, publicly-traded real
estate investment trust focused primarily on investing in upscale,
extended-stay hotels and premium-branded, select-service hotels.
The company is based in West Palm Beach, Florida.
CHEGG INC: Consolidated Amended Complaint Due March 29
------------------------------------------------------
Chegg, Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on February 25, 2019, for the
fiscal year ended December 31, 2018, that plaintiffs in a
securities class action are expected to file a consolidated amended
complaint, or designate an operative complaint, by March 29, 2019.
On September 27, 2018 a purported securities class action captioned
Shah v. Chegg, Inc. et. al. (Case No. 3:18-cv-05956-CRB) was filed
in the U.S. District Court for the Northern District of California
against the company and its CEO. The complaint was filed by a
purported Company shareholder and alleges claims under Sections
10(b) and 20(a) of the Securities Exchange Act of 1934, as amended,
and SEC Rule 10b-5, based on allegedly misleading statements
regarding the Company's security measures to protect users' data
and related internal controls and procedures, as well as the
company's second quarter 2018 financial results.
The suit is purportedly brought on behalf of purchasers of the
company's securities between July 30, 2018 and September 25, 2018.
The complaint seeks unspecified compensatory damages, as well as
interest, costs and attorneys' fees.
On November 15, 2018, a second purported securities class action
captioned Kurland v. Chegg, Inc. et al. (Case No.
3:18-cv-06714-CRB) was filed in the U.S. District Court for the
Northern District of California against the company, its CEO, and
its CFO.
The Shah and Kurland actions contain similar allegations, assert
similar claims, and seek similar relief, and on January 24, 2019,
the Court consolidated the two actions.
Plaintiffs will file a consolidated amended complaint, or designate
an operative complaint, by March 29, 2019.
Chegg said, "We believe that the claims are without merit and
intends to defend ourself vigorously."
Chegg, Inc. operates direct-to-student learning platform that
supports students on their journey from high school to college and
into their career with tools designed to help them pass their test,
pass their class, and save money on required materials. Chegg, Inc.
was founded in 2003 and is headquartered in Santa Clara,
California.
CHRISTOPHER'S GOLDEN: Chen Seeks Unpaid Overtime & Minimum Wages
----------------------------------------------------------------
ZHONGMIN CHEN, on behalf of himself and all others similarly
situated, the Plaintiff, vs. CHRISTOPHER'S GOLDEN WOK, INC. d/b/a
GOLDEN WOKS AND STEPHEN LU, the Defendants, Case No. 1:19-cv-01436
(E.D.N.Y., March 12, 2019), contends that the Defendants engaged in
a pattern and practice of failing to pay their employees, including
the Plaintiff, compensation for all hours worked, minimum wage, and
overtime compensation for all hours worked over 40 each workweek
and spread of hours, as well as failing to provide their employees,
including the Plaintiff, with wage notice at the time of hiring and
wage statements, in violation of the Federal Labor Standards Act
and the New York Labor Law.[BN]
Attorneys for the Plaintiff:
Keli Liu Esq.
HANG & ASSOCIATES, PLLC
136-20 38th Avenue, Suite 10G
Flushing, NY 11354
Telephone: (718) 353-8588
Facsimile: (718) 353-6288
E-mail: kliu@hanglaw.com
CLIF BAR: Faces Class Action Over White Chocolate Labeling
----------------------------------------------------------
Gabriel Neves, writing for Legal Newsline, reports that several
well-known companies are facing lawsuits over allegations that they
misrepresented that their products contain white chocolate, with
one company claiming these cases follow in the tradition of lawyers
who sued over the lack of fruit in Froot Loops.
The lawsuits involve the use of the words "white chocolate" in
labeling on products, such as energy drinks and snacks.
For example, Jamie Joslin and Courtney Davis filed a lawsuit
against Clif Bar & Co. in the U.S. District Court for the Northern
District of California alleging that the white chocolate flavor on
White Chocolate/Macadamia Nut Clif Bar was misleading.
Clif Bar filed a motion to dismiss the suit in November,
referencing the previous lawsuits over whether breakfast cereal
Froot Loops deceived consumers into believing it contained real
fruit.
"Plaintiffs' claims are not plausible because a reasonable consumer
would not be misled by the products' labels, which explicitly
disclose that the 'white chocolate' taste in the products is merely
a 'natural flavor' and not an ingredient other than flavor as
plaintiffs allege," the motion said.
Another suit over white chocolate involves coffee company
Starbucks.
Consumer Juan Rafael Marten filed a class action lawsuit in the
U.S. District Court for the Southern District of New York against
Starbucks alleging that white chocolate supposedly found in an
energy drink was not real.
Starbucks filed a motion to dismiss the suit in December, alleging
the labeling meets FDA requirements.
"But the Product, in accordance with federal regulations, is
clearly advertised and labeled as a drink that is
'naturally and artificially flavored' to taste like white
chocolate," lawyers for Starbucks wrote.
"To label it in any other way -- for example, as an imitation --
would bring the Product into conflict with Food and Drug
Administration requirements."
Ms. Marten alleged in the complaint that the product in question is
"not an imitation" of white chocolate, but "a coffee-based drink
with natural and artificial white chocolate flavors."
Another case involving white chocolate also comes from the U.S.
District Court for the Southern District of New York, this time
involving a brand of snack.
Aurora Morrison filed a class action lawsuit against Snack
Innovations, the makers of snack Drizzilicious, under the same
allegations as the previous two cases on Feb. 8.
She alleged that one of Snack Innovations' products, Drizzilicious
Cinnamon Swirl rice cakes, did not contain what is deemed as white
chocolate.
Ms. Morrison alleged that consumers rely on regulations to meet
their expectations.
"FDA rules concerning white chocolate are not obscure regulations
of no concern to anyone but regulators," Morrison's suit states.
"On the contrary, consumers rely on these regulations to assure
that they are purchasing what they are led to believe they are
purchasing.
"Since white chocolate does not contain the cacao solids impart
chocolate with its flavor and which consumers normally associate
with chocolate, consumers rely on the FDA to ensure that white
chocolate more closely resembles what they know as chocolate."
Ms. Morrison also alleged in the complaint that the Snack
Innovations' misrepresentations were designed to "increase sales of
the products."
Ms. Morrison previously filed a suit against Nuts 'N More LLC in
the Southern District of New York in November 2018 over allegations
its Nuts 'N More White Chocolate Peanut Spread did not contain
white chocolate.
A previous settlement against a well-known chocolate maker over
allegations its baking chips misled consumers into believing it
contained white chocolate may set a precedent as to how expensive
settling these suits could be.
Ghirardelli settled a case for millions in 2014 over whether its
baking chips contained real white chocolate in its composition.
As stated in a story published by Confectionery News, Ghirardelli's
settlement was set at $5.25 million. The suit was filed over
allegations the product was fraudulently labeled as it contained
less than the required 20 percent of cocoa butter mandated by the
Food and Drug Administration (FDA) to be considered white
chocolate.
The chips contained no white chocolate or cocoa butter in their
composition, only vanilla and milk, as stated in the label,
Confectionery News reported.
The suits against Starbucks, Clif Bar, Snack Innovations and Nuts
'N More were filed by Lee Litigation Group in New York City.
The firm is active in labeling class actions against food
companies, as well as cases over slack fill (the amount of empty
space in a package).
Examples of C.K. Lee's lawsuits include those that allege products
advertised as all natural actually have preservatives and a recent
case against Panera that says the blueberries in its bagels are
nothing more than "dyed lumps."
One of his targets has termed Lee a "shakedown" artist. [GN]
COMMUNICATIONS UNLIMITED: Can Compel Arbitration in Wallace Suit
----------------------------------------------------------------
In the case, MICHAEL WALLACE, et al., Plaintiffs, v. COMMUNICATIONS
UNLIMITED, INC., et al., Defendants, Case No. 4:18-cv-00503-JAR
(E.D. Mo.), Judge John A. Ross of the U.S. District Court for the
Eastern District of Missouri, Eastern Division, granted the
Defendants' Motion to Compel Individual Arbitrations and Stay
Litigation.
The Plaintiffs are former "Wire Technicians" employed by the
Defendants to install and service modems, routers and wireless
networks in residential and commercial environments. They advance
claims under the Fair Labor Standards Act, Missouri Minimum Wage
Law, and North Carolina Wage and Hour Act, alleging that the
Defendants systemically and uniformly failed to pay Wire
Technicians all wages owed including overtime wages and that the
Defendants had a policy, practice and procedure of breaking the
compensation agreement with Wire Technicians by failing to pay all
monetary sums owed at the agreed rate, failing to follow the bonus
program, and failing to properly calculate overtime wages.
The Plaintiffs seek to represent all current and/or former
employees of Communications Unlimited who hold or have held
non-exempt positions during the relevant time period.
The Defendants argue that the Plaintiffs are bound by a Mutual
Agreement to Arbitrate Claims that requires them to seek relief
through individual arbitration. Relying on the language of the
Agreement, the Defendants argue that the Court must enforce its
terms as written and compel the Plaintiffs to pursue their claims
through individual arbitration.
The Plaintiffs respond that the Agreement lacks the fundamental
requirements for the formation of a contract -- it was not executed
and lacks adequate consideration -- and that it is unconscionable
because it lacks mutuality insofar as some claims are exempted from
arbitration, allowing the Defendants to unilaterally "opt-out," and
because the requirement that they apply the arbitrator's
"then-current" procedures makes it impossible to predict what rules
will apply to future claims. In addition, the Plaintiffs argue
that the Agreement's cost-splitting scheme imposes an
unconscionable financial burden on them. Therefore, they argue,
the Court should invalidate the Agreement and allow the suit to
proceed.
The Defendants reply that the Agreement delegates all of the
Plaintiff's "gateway" challenges to validity and conscionability to
the arbitrator and that therefore the Court lacks the authority to
consider them.
Judge Ross finds that agrees with the Plaintiffs' assertion, as far
as it goes. Consideration requires either of a promise (to do or
refrain from doing something) or the transfer or giving up of
something of value to the other party. Because the terms and
conditions of at-will employment are not enforceable at law as
contractual duties, a continued at-will employment relationship
does not constitute legal consideration.
That said, the Judge does not agree that the Agreement fails for
want of adequate consideration. He finds that the Plaintiffs'
assertion that the Agreement excludes some claims does not change
the Court's conclusion that the parties' mutual agreement to
arbitrate disputes is sufficient consideration to form a contract.
As an initial matter, the exclusions apply equally to both
Defendants and its employees. Secondly, many of the exclusions
cover claims that only an employee can bring, such as workers
compensation or unemployment claims. In any event, exact,
mirror-image mutuality is not required. In short, the parties'
mutual agreement to arbitrate the majority of their past, current,
and future disputes is adequate consideration to support a valid
contract.
Returning to and applying Rent-A-Ctr., W., Inc. v. Jackson, the
Judge finds that the Plaintiffs' failure to directly challenge the
delegation provision precludes the Court from considering their
contract-formation argument. The Court is therefore bound to compel
arbitration.
Importantly, by compelling arbitration, the Judge is not
prohibiting Wallace from challenging the formation of the 2015
Agreement; he is still free to argue that his failure to sign it
and refusal to accept its terms render the Agreement invalid under
Kunzie. Instead, he is recognizing that Wallace must present those
arguments to the arbitrator. If the arbitrator is persuaded, the
Agreement will not be enforced and Wallace will be free to reopen
this suit and proceed in federal court.
Finally, the Judge notes that Wallace does not dispute the validity
of the 2013 iteration of the Agreement which included an identical
delegation clause and which expressly covered all claims or
controversies "past, present or future." That version of the
Agreement would theoretically cover the claims raised in this suit
even if the 2015 iteration was not enforceable, and Wallace makes
no argument to the contrary.
Judge Ross concludes that the Plaintiffs have not shown that the
delegation provision in the Agreement is invalid. As such, the
Court's only role will be to enter an order compelling arbitration.
Accordingly, he granted the Defendants' Motion to Compel
Individual Arbitrations and To Stay Litigation. He stayed the
matter pending individual arbitration by the Plaintiffs. The
parties will file with the Court a status update every six months.
A full-text copy of the Court's March 1, 2019 Memorandum and Order
is available at https://is.gd/6zHup3 from Leagle.com.
Michael Wallace, Christian Johnson & Jefferey Super, on thier own
behalves and on behalf of all others similary situated, Plaintiffs,
represented by Kiley Lynn Grombacher -- info@bradleygrombacher.com
-- BRADLEY GROMBACHER LLP, pro hac vice & Scott D. Bjorseth --
sbjorseth@rssclaw.com -- RYNEARSON AND SUESS LLC.
C.U. Employment, Inc., an Alabama Corporation, Communications
Unlimited of the South, Inc., an Alabama Corporation &
Communications Unlimited Contracting Services, Inc., an Alabama
Corporation, Defendants, represented by Andrew L. Metcalf --
andrew.metcalf@ogletree.com -- OGLETREE DEAKINS & David L.
Schenberg -- david.schenberg@ogletree.com -- OGLETREE DEAKINS.
CONAGRA FOODS: Allen Renews Bid to Certify Class and Subclasses
---------------------------------------------------------------
Erin Allen, Ofelia Frechette, Shelley Harder, Deana Marr, Tammie
Shawley, Brian Smith, and Betty Vazquez, Plaintiffs in the lawsuit
titled ERIN ALLEN, TYOKA BRUMFIELD, OFELIA FRECHETTE, SHELLEY
HARDER, DEANA MARR, TAMMIE SHAWLEY, BRIAN SMITH, AND BETTY VAZQUEZ,
on behalf of themselves and all others similarly situated v.
CONAGRA FOODS INC. a Delaware corporation, Case No.
3:13-cv-01279-WHO (N.D. Cal.), file with the Court their renewed
motion for certification of these classes:
* Class:
All natural persons who purchased Parkay Spray in the United
States, at any time from January 1, 2008 to the present and
subject to the applicable statutes of limitations (the
"Class Period"). The Class will pursue common law unjust
enrichment claims.
Excluded from the Class are Defendant; the officers,
directors or employees of Defendant; any entity in which
Defendant has a controlling interest; and any affiliate,
legal representative, heir or assign of Defendant; also
excluded are any federal, state or local governmental
entities, any judicial officer presiding over this action
and the members of his/her immediate family and judicial
staff, any juror assigned to this action and those claiming
that they have suffered any personal injury as a result of
consuming Defendant's misbranded products, and purchases of
the product for purposes of resale;
* Subclass #1:
All class members who purchased the product in the following
states: Alabama, Alaska, Connecticut, Delaware, Illinois,
Minnesota, Mississippi, South Carolina, and Wisconsin,
subject to the applicable statutes of limitations. Subclass
#1 will pursue claims arising under the following consumer
protection statutes: Ala. Code Section 8-19-5(27); Alaska
Stat. Section 45.50.471(a); Conn. Gen. Stat. Section
42-110b(a); Del Code Ann. tit. 6, Section 2532(a); 815 Ill.
Comp. Stat. Ann. Section 505/2; Minn. Stat. Section
325D.44(13); Miss. Code Section 75-24-5(1); S.C. Code
Section 39-5-20(a); and Wis. Stat. Section 100.18;
* Subclass #2:
All class members who purchased the product in the following
states: Alabama, Alaska, Delaware, Michigan, Minnesota,
Mississippi, and Ohio, subject to the applicable statutes of
limitations. Subclass #2 will pursue claims arising under
the following consumer protection statutes: Ala. Code
Section 8-19-5(27); Alaska Stat. Section 45.50.471(a); Del
Code Ann. tit. 6, Section 2532(a); Mich. Comp. Laws Ann.
Section 445.903(c), (e), (g); Minn. Stat. Section
325D.44(5), (7), (10); Miss. Code Section 75-24-5(2)(e),
(g), (i); and Ohio Rev. Code Section 4165.02(A)(7), (9),
(11);
* Subclass #3:
All class members who purchased the product in the following
states: District of Columbia, Florida, Iowa, Louisiana,
Missouri, Montana, New Hampshire, New Jersey, New York,
North Carolina, Oregon, Rhode Island, Tennessee, Vermont,
and Washington, subject to the applicable statutes of
limitations. Subclass #3 will pursue claims arising under
the following consumer protection statutes: D.C. Code
Section 28-3904; Fla. Stat. Ann. Section 501.204; Iowa Code
Section 714H.3(1); La. Rev. Stat. Ann. Section 51:1405(A);
Mo. Rev. Stat. Section 407.020(1); Mont. Code Section
30-14-103; N.H. Rev. Stat. Section 358-A; N.J. Stat. Ann.
Section 56:8-2; N.J. Stat. Ann. Section 56:8-2; N.Y. Gen.
Bus. Law Section 349(a); N.C. Gen. Stat. Section 75-1.1(a);
Or. Rev. Stat. Section 646.608(1)(u); R.I. Gen. Laws Section
6-13.1-1(6)(xiii), 6-13.1-2; Vt. Stat. Ann. tit. 9, Section
2453(a); and Wash. Rev. Code Section 19.86.020;
* Subclass #4:
All class members who purchased the product in the following
states: California, Georgia, Hawaii, Maryland,
Massachusetts, Virginia, and West Virginia, subject to the
applicable statutes of limitations. Subclass #4 will pursue
claims arising under the following consumer protection
statutes: Cal. Bus. & Prof. Code Section 17200; Ga. Code.
Ann. Section 10-1-393(a), (b); Haw. Rev. Stat. Section
480A-3(12); Md. Code Com. Law Section 13-301(1); Mass. Gen.
L. ch. 93A, Section 2(a); Va. Code Section 59.1-200(A)(14);
and W. Va. Code SectionSection 46A-6-102(7), 46A-6-104;
* Subclass #5:
All class members who purchased the product in the following
states: California, Georgia, Hawaii, Maryland, Virginia, and
West Virginia, subject to the applicable statutes of
limitations. Subclass #5 will pursue claims arising under
the under the following consumer protection statutes: Cal.
Civil Code Section 1770(a)(5), (7), (9); Ga. Code. Ann.
Section 10-1-393(b)(5), (7), (9); Haw. Rev. Stat. Section
480A-3(a)(5), (7), (9); Md. Code Com. Law Section 13-301(1);
Va. Code Section 59.1-200(A)(5), (6), (8); and W. Va. Code
Section 46A-6-102(7)(E), (G), (I);
* Subclass #6:
All class members who purchased the product in the following
states: Arkansas, Indiana, and Wyoming, subject to the
applicable statutes of limitations. Subclass #6 will pursue
claims arising under the following consumer protection
statutes: Ark. Code Section 4-88-107(a); Section
4-88-108(a)(1), (3), (10); Ind. Code Section 24-5-0.5-3(a);
Ind. Code Section 24-5-0.5-3(b)(1), (2), (11); Wyo. Stat.
Ann. Section 40-12-105(a)(xv); and Wyo. Stat. Ann. Section
40-12-105(a)(i), (iii), (x); and
* California Subclass:
All class members who purchased the product in California at
any time from March 21, 2009 to the present. The California
Subclass will pursue claims arising under the unlawful prong
of California's Unfair Competition Law (Bus. & Prof. Code
Section 17200 et seq.) and California's False Advertising
Law (Bus. & Prof. Code Section 17500 et seq.), and as well
as common law claims of fraud, breach of express warranty,
and misrepresentation.
In addition to the California Subclass, if the Court denies any
Multi-State Subclass, the Plaintiffs propose additional subclasses
for those states in which a named plaintiff has purchased the
product (i.e., Florida, Georgia, Illinois, Indiana, Michigan, Ohio,
and Wisconsin (collectively, the "State Subclasses")). Each State
Subclass shall include all class members who purchased the product
in that respective state, subject to the applicable statutes of
limitations.
The Plaintiffs also ask that the Court appoint the representatives
of Class and Subclasses as follows: Plaintiffs Erin Allen (Class;
Subclasses #4 and 5; California Subclass); Ofelia Frechette (Class;
Subclasses #1, 2, 6); Indiana, Illinois, and Michigan Subclasses);
Deana Marr (Class; Subclasses #4 and 5; Georgia Subclass), Shelley
Harder (Class; Subclass #6; Indiana Subclass;), Tammie Shawley
(Class; Subclass # 2 and 3; Florida and Ohio Subclasses), Brian
Smith (Class; Subclass #2; Michigan Subclass), and Betty Vazquez
(Class; Subclass #1; Illinois and Wisconsin Subclasses).
The Plaintiffs further ask that the Court appoint Gutride Safier
LLP and The Eureka Law Firm as lead class counsel. The Plaintiffs
finally ask the Court to order the parties to meet and confer and
present the Court, within 15 days of an order granting class
certification, a proposed notice to the certified class.
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:
Adam J. Gutride, Esq.
Seth A. Safier, Esq.
Kristen Simplicio, Esq.
Anthony Patek, Esq.
GUTRIDE SAFIER LLP
100 Pine Street, Suite 1250
San Francisco, CA 94111
Telephone: (415) 639-9090
Facsimile: (415) 449-6469
E-mail: adam@gutridesafier.com
seth@gutridesafier.com
kristen@gutridesafier.com
anthony@gutridesafier.com
- and -
Ureka E. Idstrom, Esq.
THE EUREKA LAW FIRM
5605 Belinder Road
Fairway, KS 66205
Telephone: (816) 665-3515
E-mail: uidstrom@eurekalaw.com
COOK COUNTY, IL: Claims in 3rd Amended Williams Suit Narrowed
-------------------------------------------------------------
In the case, TAPHIA WILLIAMS, GREGORY COOPER, JOSHUA ATWATER,
MARCUS JOHNSON, XAVIER WEBSTER, and TONY MASON, individually and on
behalf of those similarly situated, Plaintiffs, v. COOK COUNTY and
COOK COUNTY SHERIFF TOM DART, Defendants, Case No. 18 C 1456 (N.D.
Ill.), Judge Harry D. Leinenweber of the U.S. District Court for
the Northern District of Illinois, Eastern Division, (i) granted in
part and denied in part Sheriff Dart's Motion to Dismiss
Plaintiffs' Third Amended Complaint; and (2) denied the Plaintiffs'
Motion for Class Certification.
The Named Plaintiffs brought the putative class action under 42
U.S.C. Section 1983 against Sheriff Dart, alleging that he
unlawfully detained them and other individuals in the Cook County
Jail pursuant to an unconstitutional policy after their bonds had
posted.
The case arises from Sheriff Dart's refusal to comply with state
court orders granting certain incarcerated individuals with pending
criminal charges release on electronic monitoring. Each of these
individuals -- the Named Plaintiffs -- had their bonds posted in
their respective criminal case, as required by the state judges,
but was not immediately released thereafter. Instead, Sheriff Dart
denied these individuals enrollment in his electronic home
monitoring program ("EHM program") and detained them for a period
ranging from three to 12 days. The Named Plaintiffs attribute such
detention to Sheriff Dart's new policy: independently reviewing
state court decisions granting bond and refusing to comply with
said decisions if he disagreed with them.
The Plaintiffs contend that Sheriff Dart has no authority to
override or to refuse compliance with valid bond decisions by state
judges. They bring suit individually and on behalf of all
similarly situated class members, contending that Sheriff Dart
violated their rights under the United States Constitution and
Illinois law by detaining them after their bonds posted. Their
original Complaint and First Amended Complaint included solely a 42
U.S.C. Section 1983 Fourth Amendment claim for unlawful detention.
The Plaintiffs then moved for a temporary restraining order, which
the Court denied on March 6, 2018.
About a month later, on April 12, 2018, the Plaintiffs filed their
Second Amended Complaint, which included five counts: (1) a Section
1983 Fourth Amendment claim; (2) a Section 1983 Equal Protection
claim; (3) a Section 1983 Procedural Due Process claim; (4) an
equal protection claim under the Illinois Civil Rights Act of 2003;
and (5) a claim for failing to enforce binding court orders under
55 ILCS 5/3-6019-6020.
On May 17, 2018, Sheriff Dart moved to dismiss the Plaintiffs'
Second Amended Complaint in its entirety. In its Sept. 13, 2018
Order, the Court granted in part and denied in part that motion,
dismissing the Plaintiffs' Fourth Amendment claim with prejudice
and both of Plaintiffs' equal protection claims without prejudice.
It denied Sheriff Dart's motion as to the Procedural Due Process
claim and the claim under 55 ILCS 5/3-6019-6020.
On Oct. 15, 2018, the Plaintiffs filed their Third Amended
Complaint, which is now at issue before the Court. That Complaint
includes five counts: (1) a newly included Section 1983 Substantive
Due Process claim (Count I); (2) an amended Section 1983 Equal
Protection claim (Count II); (3) the same Section 1983 Procedural
Due Process claim (Count III); (4) an amended equal protection
claim under the Illinois Civil Rights Act of 2003 (Count IV); and
(5) the same claim for failing to enforce binding court orders
under 55 ILCS 5/3-6019-6020 (Count V).
Sheriff Dart moves to dismiss the Third Amended Complaint under
Federal Rules of Civil Procedure 12(b) (1) and 12(b)(6), and the
Plaintiffs move to certify class.
As a final note, Sheriff Dart raises new arguments in response to
the Court's September Order, requesting that the Court reevaluates
some of its prior determinations. Relevant portions of that Order
will thus be recited and discussed throughout the Opinion.
Judge Leinenbewer finds that Sheriff Dart's failure to release
these individuals, albeit problematic on other grounds, was not in
contravention of a valid state court order. Accordingly, Count V
is dismissed with prejudice. However, such a finding with regard
to 55 ILCS 5/3-6019 is not dispositive of the other constitutional
claims the Plaintiffs bring.
As to Count III, the Judge finds that at this stage, the Court must
only determine if the Plaintiffs have pled the deprivation of a
protected interest and insufficient procedural protections
surrounding that deprivation. He finds that the Plaintiffs have
met this burden. Accordingly, the Plaintiffs' Section 1983
Procedural Due Process claim passes muster.
With respect to Count I, a Section 1983 Substantive Due Process
claim, the Judge finds that assuming every possible inference in
the Plaintiffs favor, Sheriff Dart's policy and ultimate decision
to prolong the Plaintiffs detention, albeit unfair and perhaps
unreasonable in certain circumstances, does not shock the
conscience. Any violation that might occur therefrom is more
appropriately considered under a Procedural Due Process theory.
Accordingly, the Plaintiffs' Section 1983 Substantive Due Process
Claim is dismissed with prejudice.
Next, the Judge considers the Plaintiffs' Section 1983 Equal
Protection claim (Count II) and a state law analog -- a claim under
the Illinois Civil Rights Act of 2003, 740 ILCS 23/5 (Count IV).
He finds that the Plaintiffs have failed to state a Section 1983
Equal Protection claim and its analog claim under the Illinois
Civil Rights Act. The crux of the Plaintiffs' claims is that
Sheriff Dart's policy discriminates against African Americans from
obtaining home confinement relief, as compared to similarly
situated pretrial detainees, not Chicago's population in its
entirety. Without that context, it merely asserts that African
Americans comprise 80% of individuals detained pursuant to Sheriff
Dart's policy, which, albeit suspicious at first glance, is
insufficient to claim discriminatory purpose. Counts II and IV are
therefore dismissed.
To the extent that the Plaintiffs claims related to or relied on
the validity of those orders, the Court has dismissed them. The
instant case pertains to Sheriff Dart's conduct and implementation
of his policy. Accordingly, abstention is not warranted, and the
Plaintiffs' procedural due process claim -- the only claim left
standing -- may proceed.
Finally, as to the Plaintiffs' Motion for Class Certification, the
Judge finds that the Plaintiffs have failed to show typicality.
Given the circumstances, class action is not the appropriate
vehicle to adjudicate the claims at bar.
For the reasons stated, Judge Leinenweber (i) granted in part and
denied in part Sheriff Dart's Motion to Dismiss, and (ii) denied
the Plaintiffs' Motion for Class Certification.
A full-text copy of the Court's Feb. 27, 2019 Memorandum Opinion
and Order is available at https://is.gd/RxMHal from Leagle.com.
Taphia Williams, Individually and on behalf of those similarly
situated & Gregory Cooper, Plaintiffs, represented by Sara A.
Garber, Thedford Garber Law & Adele D. Nicholas --
adele@civilrightschicago.com -- Law Office of Adele D. Nicholas.
Joshua Atwater, Tony Mason, Marcus Johnson, Xavier Webster,
Reginald Simmons, Terrance Robinson & Kevin McKeever, Plaintiffs,
represented by Sara A. Garber, Thedford Garber Law.
Tom Dart, Cook County Sheriff, Defendant, represented by Richard
Christopher Gleason, II -- info@ogolawyers.com -- O'Mara, Gleason,
& O'Callaghan, LLC.
Cook County, Defendant, represented by Quintin Dean Saffold, Sr.,
Cook County Assistant State's Attorney's Office.
COOPER-STANDARD: Settlement Inked in Ontario Auto Suppliers Suit
----------------------------------------------------------------
Cooper-Standard Holdings Inc. said in its Form 10-K report filed
with the U.S. Securities and Exchange Commission on February 25,
2019, for the fiscal year ended December 31, 2018, that Nishikawa
Rubber Co., a joint venture by the Company, has entered into a
settlement agreement which provides for dismissal of claims against
the CS Defendants.
On March 30, 2016, a putative class action complaint alleging
conspiracy to fix the price of body sealing products used in
automobiles and other light-duty vehicles was filed in Ontario
against numerous automotive suppliers, including Cooper-Standard
Holdings Inc., CSA U.S. and Cooper-Standard Automotive Canada
Limited ("CS Defendants") and Nishikawa Cooper LLC, a joint venture
in which the Company holds a 40% interest.
Plaintiffs purport to be direct or indirect purchasers of body
sealing products supplied by the CS Defendants and/or the other
defendants during the relevant period. The plaintiffs seek recovery
of damages on behalf of direct and indirect purchasers against all
defendants in an amount to be determined, punitive damages, as well
as pre-judgment and post-judgment interest and related costs and
expenses of the litigation.
The Company believes the claims asserted against the CS Defendants
are without merit and intends to vigorously defend against these
claims. Further, the Company does not believe that there is a
material loss that is probable and reasonably estimable related to
these claims.
In January 2019, Nishikawa Rubber Co. entered into a settlement
agreement which provides for dismissal of the claims against the CS
Defendants. The settlement is subject to court approval, which has
not yet been granted.
Cooper-Standard Holdings Inc., through its subsidiary,
Cooper-Standard Automotive Inc., designs, manufactures, and sells
sealing, fuel and brake delivery, fluid transfer, and
anti-vibration systems worldwide. It operates in four segments:
North America, Europe, Asia Pacific, and South America.
Cooper-Standard Holdings Inc. was founded in 1960 and is
headquartered in Novi, Michigan.
CREDIT CONTROL: Wins Prelim. Nod of Aronne Suit Settlement
----------------------------------------------------------
The Hon. Arthur D. Spatt grants preliminary approval to the Class
Settlement Agreement between the parties in the lawsuit styled LANA
ARONNE, individually and on behalf of all others similarly situated
v. CREDIT CONTROL, LLC, a Missouri Limited Liability Company; and
JOHN AND JANE DOES NUMBERS 1 THROUGH 10, Case No.
2:18-cv-03744-ADS-AYS (E.D.N.Y.).
The "Settlement Class" is defined as:
All persons with addresses in the State of New York to whom
Credit Control, LLC mailed a collection letter between
October 6, 2017, and July 19, 2018, to collect a debt on
behalf of Kohl's Department Stores, Inc. which debt was
charged-off by the creditor prior to the date the letter was
sent to the consumer and the letter stated:
"[b]ecause of interest, late charges and other charges
that may be assessed by your creditor that vary from day
to day, the amount due on the day you pay, may be
greater. Thus, it you pay the total amount shown within
this notice, an adjustment may be necessary after we
receive your check, in which event we will inform you."
The "Class Claims" are defined as those claims arising under the
Fair Debt Collection Practices Act from Credit Control's collection
letters which: (i) stated that, "[b]ecause of interest, late
charges and other charges that may be assessed by your creditor
that vary from day to day, the amount due on the day you pay, may
be greater."
The Court appoints the Plaintiff as the Class Representative,
appoints the Plaintiff's counsel as Class Counsel and appoints KCC
Class Action Services LLC as the Settlement Administrator to
administer notice to the class and the settlement.
The Court approves the Parties' proposed Class Notice and directs
that it be mailed to the last known address of each member of the
Settlement Class. Class Members shall have until May 13, 2019, to
return a claim form, exclude themselves from, or object to, the
Settlement.
A final hearing on the fairness and reasonableness of the Agreement
and whether final approval shall be given to it and the requests
for fees and expenses by Class Counsel will be held on June 14,
2019, at 9:00 a.m.[CC]
DENVER, CO: Settles Homeless Sweep Class Action
-----------------------------------------------
Chris Walker, writing for Westword, reports that a settlement has
been reached in a class-action lawsuit that represented every
person experiencing homelessness in Denver against the city in
federal court. The settlement, which was announced February 27,
comes just weeks before a jury trial was scheduled to begin to
decide whether the city violated constitutional rights, including
those covered by the Fourth and Fourteenth amendments (protections
against unlawful searches and seizures and equal protection under
law, respectively), when it conducted large-scale sweeps of
homeless encampments.
The case began in 2016 following a series of large encampment
cleanups in the Ballpark neighborhood, during which some people
experiencing homelessness claimed that their possessions were
trashed or confiscated by police officers and city employees
without enough warning or a clear path to retrieve them.
In August that year, civil-rights attorney Jason Flores-Williams
("Ready for Action," December 2016) sued the city to challenge its
homeless sweeps on behalf of six plaintiffs. The case made national
headlines in April 2017 when District Court Judge William Martinez
took the unusual step of granting class certification to every
person experiencing homelessness in Denver.
In 2017 and 2018, the case moved slowly through the court before
appearing to head toward a "monster trial," as Flores-Williams put
it last February, that was scheduled to begin this March. But with
the help of attorney Andy McNulty at the civil-rights firm Killmer,
Lane & Newman, LLP, negotiations derailed the trial.
In the settlement announced on Feb. 27, Denver has agreed to
implement strategies that will change how it conducts cleanups of
homeless encampments.
These include:
-- Posting signs with seven days' notice prior to large
cleanups.
-- Posting written notice of regular cleanups, including days
and hours and locations, of where those will take place.
-- Affixing a 48-hour notice to unattended items rather than
removing them (when said items aren't posing a health and safety
risk).
-- Having all notices include locations and hours of storage
facilities where property taken during a cleanup can be retrieved
without fear of arrest.
-- Placement of 200 lockers at the Minori Yasui Building Plaza
(at the intersection of West Colfax Avenue and Tremont Place,
across from the City and County Building).
-- Expanding the number of trash cans in the Ballpark
neighborhood, along the South Platte River trail and along the
Cherry Creek bike trail.
-- Creation of an advisory group consisting of people
experiencing homelessness who will give feedback to the city on
programs and policies every quarter.
-- Potential creation of a "mobile health unit" funded by the
city.
-- Development of a formal notification system for people whose
personal property has been removed from public places. [GN]
DETROIT, MI: Summary Judgment Bid in MS Rentals Suit Partly Granted
-------------------------------------------------------------------
In the case, MS RENTALS, LLC, and GARNER PROPERTIES & MANAGEMENT,
LLC, Honorable David M. Lawson Plaintiffs, v. CITY OF DETROIT,
Defendant, Case Number 18-10165 (E.D. Mich.), Judge David M. Lawson
of the U.S. District Court for the Eastern District of Michigan,
Southern Division, granted in part and denied in part the
Defendant's motion for summary judgment.
The City of Detroit, like many municipalities, has a Property
Maintenance Code ("PMC") that includes provisions regulating
landlords and the rentals of residential housing units. Detroit's
ordinance requires property owners to register their property,
comply with habitability standards, and submit to inspections. The
City charges fees for occupancy certificates and inspections, and
imposes fines when inspections are refused.
On Jan. 15, 2018, the Plaintiffs filed a seven-count complaint in
the 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
Plaintiffs ask the Court to void the PMC and order the City to
return all fees and fines collected under it.
The City has moved for summary judgment. It has amended its
ordinance to include a process allowing landlords to refuse a
demand for inspection and mount an administrative challenge before
fines or fees are assessed. Believing that the amendment cures any
constitutional violation, the City asserts that the case is now
moot. Remarkably, though, the City asserts that if the Court finds
the old ordinance valid, it will revert to that version. The City
also argues that the Plaintiffs' other theories do not support
their claim for any relief, including damages.
The Court heard oral argument from the parties on Dec. 19, 2018.
Judge Lawson finds 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.
Accordingly, he granted in part and denied in part the Defendant's
motion for summary judgment. He granted 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. He dismissed
with prejudice Counts I, III, IV, V, VI, VII, and part of Count II
of the complaint seeking damages. The Plaintiffs' motion for class
certification is dismissed as moot.
Among other things, the Judge finds that the Plaintiffs are not
entitled to recover blight fines, inspection fees, or other
damages. The Defendant is entitled to partial summary judgment on
the damage claim in Count II of the complaint. The lack of
precompliance review affected only the propriety of the inspection
ordinance; if the Plaintiffs elected to operate without a
certificate of compliance and were fined for doing so, they cannot
be heard to cry foul. It is of no consequence that the
administrative hearing is characterized as "strict-liability,"
since the Plaintiffs have no right under the law to avoid
inspection and maintain a rental property without a certificate.
And again, there is nothing in the record that suggests the
Plaintiffs in fact objected to inspection in the first place or
that the properties were up to code.
A full-text copy of the Court's Feb. 27, 2019 Opinion and Order is
available at https://is.gd/D6iFW0 from Leagle.com.
MS RENTALS, LLC & Garner Properties & Management, LLC, Plaintiffs,
represented by Mark K. Wasvary -- markwasvary@hotmail.com -- Becker
and Wasvary & Aaron D. Cox -- Aaron@aaroncoxlaw.com -- Law Offices
of Aaron D. Cox PLLC.
City of Detroit, Defendant, represented by Michael M. Muller --
mullm@detroitmi.gov -- Detroit City Law Department.
EMERGENT BIOSOLUTIONS: Settlement in Sponn Suit Has Final Approval
------------------------------------------------------------------
Emergent BioSolutions Inc. said in its Form 10-K report filed with
the U.S. Securities and Exchange Commission on February 22, 2019,
for the fiscal year ended December 31, 2018, that the court has
issued an order and final judgment approving the settlement in the
class action lawsuit initiated by William Sponn.
On July 19, 2016, Sponn filed a putative class action complaint in
the United States District Court for the District of Maryland on
behalf of purchasers of the Company's common stock between January
11, 2016 and June 21, 2016, inclusive (the "Class Period"), seeking
to pursue remedies under the Exchange Act against the Company and
certain of its senior officers and directors.
The complaint alleged, among other things, that the Defendants made
materially false and misleading statements about the government's
demand for BioThrax and expectations that the Company's five-year
exclusive procurement contract with HHS would be renewed, and
omitted certain material facts. Sponn sought unspecified damages,
including legal costs.
On October 25, 2016, the court added City of Cape Coral Municipal
Firefighters' Retirement Plan and City of Sunrise Police Officers'
Retirement Plan as plaintiffs and appointed them Lead Plaintiffs
and Robbins Geller Rudman & Dowd LLP as Lead Counsel.
On December 27, 2016, the Plaintiffs filed an amended complaint
that cited the same class period, named the same defendants and
made similar allegations to the original complaint. The Defendants
filed a Motion to Dismiss on February 27, 2017. The Plaintiffs
filed an opposition brief on April 28, 2017. The Defendants' Motion
to Dismiss was heard and denied on July 6, 2017. The Defendants
filed an answer on July 28, 2017.
The parties then engaged in the process of exchanging discovery.
The Plaintiffs filed an amended motion for class certification and
appointment of Lead Plaintiffs, Sponn, and Geoffrey L. Flagstad
("Flagstad") as Class Representatives on December 20, 2017. A
hearing on that motion was heard on May 2, 2018. On June 8, 2018
the Court granted class certification with a shortened class
period, May 5, 2016 to June 21, 2016. In that same order, the court
appointed Flagstad as Class Representative and Robbins Geller
Rudman & Dowd LLP as Class Counsel.
The Defendants have denied, and continue to deny, any and all
allegations of fault, liability, wrongdoing, or damages.
However, recognizing the risk, time, and expense of litigating any
case to trial, on August 27, 2018, the Defendants reached an
agreement in principle with Plaintiffs to settle all of the related
claims of any individual plaintiff that purchased or acquired
Company stock from January 11, 2016 to June 21, 2016, for $6.5
million, an amount that was paid by the Company's insurance
carrier. The settlement required no payment by any of the
Defendants.
The Defendants continue to deny any and all liability. The parties
executed the settlement agreement on October 16, 2018 and filed the
agreement with the court on October 17, 2018. The court granted
preliminary approval of the settlement on October 18, 2018, issued
an amended preliminary approval of the settlement on October 25,
2018, and scheduled a hearing regarding final approval for January
22, 2019.
At the time of the final approval hearing on January 22, 2019,
there were no objections to the settlement, but there were two
shareholders who had submitted opt-outs so that they could be
excluded from the settlement. On January 25, 2019, the court issued
an order and final judgment approving the settlement.
Emergent said, "Although the court has approved the settlement, the
court's decision can be appealed for a period of time. In addition,
the shareholders who opted out could try to bring their own claims.
The Company, therefore, at this time, cannot predict the results of
this lawsuit and possible other legal proceedings with certainty.
Defendants continue to believe that the allegations in the
complaint are without merit."
Emergent BioSolutions Inc. develops, manufactures, and
commercializes immunobiotics such as vaccines and immune globulins
that assist the body’s immune system. The company, which was
founded in 1998, is based in Rockville, Maryland.
ENERGY TRANSFER: Trial in Suit over Regency Merger Set for Sept.
----------------------------------------------------------------
Energy Transfer Operating, L.P. said in its Form 10-K report filed
with the U.S. Securities and Exchange Commission on February 22,
2019, for the fiscal year ended December 31, 2018, that the trial
in the lawsuit related to the Regency merger is currently set for
September 23-27, 2019.
Purported Regency unitholders filed lawsuits in state and federal
courts in Dallas and Delaware asserting claims relating to the
Regency-ETP merger (the "Regency Merger"). All but one Regency
Merger-related lawsuits have been dismissed.
On June 10, 2015, Adrian Dieckman ("Dieckman"), a purported Regency
unitholder, filed a class action complaint in the Court of Chancery
of the State of Delaware (the "Regency Merger Litigation"), on
behalf of Regency's common unitholders against Regency GP, LP;
Regency GP LLC; ET, ETO, ETP GP, and the members of Regency's board
of directors ("Defendants").
The Regency Merger Litigation alleges that the Regency Merger
breached the Regency partnership agreement because Regency's
conflicts committee was not properly formed, and the Regency Merger
was not approved in good faith. On March 29, 2016, the Delaware
Court of Chancery granted Defendants' motion to dismiss the lawsuit
in its entirety. Dieckman appealed.
On January 20, 2017, the Delaware Supreme Court reversed the
judgment of the Court of Chancery. On May 5, 2017, Plaintiff filed
an Amended Verified Class Action Complaint. Defendants then filed
Motions to Dismiss the Amended Complaint and a Motion to Stay
Discovery on May 19, 2017.
On February 20, 2018, the Court of Chancery issued an Order
granting in part and denying in part the motions to dismiss,
dismissing the claims against all defendants other than Regency GP,
LP and Regency GP LLC (the "Regency Defendants'). On March 6, 2018,
the Regency Defendants filed their Answer to Plaintiff's Verified
Amended Class Action Complaint. Trial is currently set for
September 23-27, 2019.
Energy Transfer said, "The Regency Defendants cannot predict the
outcome of the Regency Merger Litigation or any lawsuits that might
be filed subsequent to the date of this filing; nor can the Regency
Defendants predict the amount of time and expense that will be
required to resolve the Regency Merger Litigation. The Regency
Defendants believe the Regency Merger Litigation is without merit
and intend to vigorously defend against it and any others that may
be filed in connection with the Regency Merger."
Energy Transfer Operating, L.P. engages in the natural gas
midstream, and intrastate transportation and storage businesses in
the United States. The company was formerly known as Energy
Transfer Partners, L.P. and changed its name to Energy Transfer
Operating, L.P. in October 2018. Energy Transfer Operating, L.P.
was founded in 1995 and is based in Dallas, Texas. Energy Transfer
Operating, L.P. is a subsidiary of Energy Transfer LP.
ENERGY TRANSFER: Warner Class Action Voluntarily Dismissed
----------------------------------------------------------
William D. Warner has voluntarily dismissed his class action
complaint against Energy Transfer Operating, L.P., the company said
in its Form 10-K report filed with the U.S. Securities and Exchange
Commission on February 22, 2019, for the fiscal year ended December
31, 2018.
On September 17, 2018, William D. Warner ("Plaintiff"), a purported
Energy Transfer Partners, L.P. unitholder, filed a putative class
action asserting violations of various provisions of the Securities
Exchange Act of 1934 and various rules promulgated thereunder in
connection with the Energy Transfer Merger against Energy Transfer
Partners, L.P., Kelcy L. Warren, Michael K. Grimm, Marshall S.
McCrea, Matthew S. Ramsey, David K. Skidmore, and W. Brett Smith.
Plaintiff specifically alleged that the proxy statement related to
the Energy Transfer Merger omitted and/or misrepresented material
information.
On December 17, 2018, Plaintiff voluntarily dismissed his lawsuit.
Energy Transfer Operating, L.P. engages in the natural gas
midstream, and intrastate transportation and storage businesses in
the United States. The company was formerly known as Energy
Transfer Partners, L.P. and changed its name to Energy Transfer
Operating, L.P. in October 2018. Energy Transfer Operating, L.P.
was founded in 1995 and is based in Dallas, Texas. Energy Transfer
Operating, L.P. is a subsidiary of Energy Transfer LP.
ENHANCED RECOVERY: Certification of Class Sought in O'Boyle Suit
----------------------------------------------------------------
Anne O'Boyle and Jennifer Torres move the Court to certify the
class described in the complaint of the lawsuit entitled ANNE
O'BOYLE and JENNIFER TORRES, Individually and on Behalf of All
Others Similarly Situated v. ENHANCED RECOVERY COMPANY, LLC, Case
No. 2:19-cv-00326-DEJ (E.D. Wisc.), and further ask that the Court
both stay the motion for class certification and to grant them (and
the Defendant) relief from the Local Rules setting automatic
briefing schedules and requiring briefs and supporting material to
be filed with the Motion.
Dicta in the Supreme Court's decision in Campbell-Ewald Co. v.
Gomez, left open the possibility that a defendant facing a class
action complaint could moot a class representative's case by
depositing funds equal to or in excess of the maximum value of the
plaintiff's individual claim with the court and having the court
enter judgment in the plaintiff's favor prior to the filing of a
class certification motion, the Plaintiffs assert, citing
Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016).
To avoid the risk of a defendant mooting a putative class
representative's individual stake in the litigation, the Seventh
Circuit instructed plaintiffs to file a certification motion with
the complaint, along with a motion to stay briefing on the
certification motion. Damasco v. Clearwire Corp., 662 F.3d 891,
896 (7th Cir. 2011), overruled on other grounds, Chapman v. First
Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015) ("The pendency of
that motion [for class certification] protects a putative class
from attempts to buy off the named plaintiffs.").
While the Seventh Circuit has held that the specific procedure
described in Campbell-Ewald cannot force the individual settlement
of a class representative's claims, the same decision cautions that
other methods may prevent a plaintiff from representing a class,
the Plaintiffs tell the Court, citing Fulton Dental, LLC v. Bisco,
Inc., No. 16-3574, 2017 U.S. App. LEXIS 10839 *9-10 (7th Cir. June
20, 2017). The Plaintiffs assert that one defendant has attempted
a similar tactic by sending a certified check to the proposed class
representative. Bonin v. CBS Radio, Inc., No. 16-cv-674-CNC (E.D.
Wis.); see also Severns v. Eastern Account Systems of Connecticut,
Inc., Case No. 15-cv-1168, 2016 U.S. Dist. LEXIS 23164 (E.D. Wis.
Feb. 24, 2016).
The Plaintiffs are obligated to move for class certification to
protect the interests of the putative class, the Plaintiffs aver.
As the Motion to certify a class is a placeholder motion as
described in Damasco, the parties and the Court should not be
burdened with unnecessary paperwork and the resulting expense when
short motion to certify and stay should suffice until an amended
motion is filed, the Plaintiffs contend.
The Plaintiffs also ask the Court to appoint them as class
representative, and to appoint Ademi & O'Reilly, LLP, as class
counsel.[CC]
The Plaintiff is represented by:
John D. Blythin, Esq.
Mark A. Eldridge, Esq.
Jesse Fruchter, Esq.
Ben J. Slatky, Esq.
ADEMI & O'REILLY, LLP
3620 East Layton Avenue
Cudahy, WI 53110
Telephone: (414) 482-8000
Facsimile: (414) 482-8001
E-mail: jblythin@ademilaw.com
meldridge@ademilaw.com
jfruchter@ademilaw.com
bslatky@ademilaw.com
EPIC GAMES: 2 Law Firms File Class Action Over Loot Boxes
---------------------------------------------------------
Pearson, Simon & Warshaw, LLP and Kaliel PLLC filed suit, Altes v.
Epic Games, Inc. Case No. 2:19-cv-01488 in the U.S. District Court
for the Central District of California on February 28, 2019,
alleging that Defendant Epic Games, Inc., the developer of the
wildly popular video game Fortnite, uses predatory tactics to lure
players into making in-game purchases. Specifically, the Complaint
challenges Fortnite's unfair and deceptive marketing of its "loot
boxes," known as "Llamas," in Fortnite Save the World.
The Complaint, which is filed as a class action on behalf of
California consumers, is brought by Mr. Altes on behalf of his
child, a minor. Melissa Weiner, an attorney representing
Mr. Altes and his son, commented, "Fortnite's conduct with respect
to loot boxes is especially egregious because so many of its
players are kids."
A "loot box" is a virtual pack of goods which contains a randomized
selection of virtual items to be used in a game. Loot boxes can
contain everything from purely cosmetic items—known as "skins,"
which offer no competitive advantages—to a variety of items such
as "power ups" that can dramatically alter a player's chance of
progressing in the game. The loot boxes in Fortnite Save the World,
known as Llamas, are of the latter variety, offering players a
chance to advance in the game.
Recently, loot boxes have generated significant controversy, with
some countries, such as Belgium, Netherlands, and Australia finding
that they constitute illegal gambling, based on the fact that
consumers pay real currency for potential "loot" that is not
guaranteed.
Other countries, including China and Korea, have recently issued
regulations requiring games with loot boxes to disclose the odds of
winning loot box contents. In the U.S., the Federal Trade
Commission has vowed to investigate the use of loot boxes in video
games, but so far, has taken no action.
Mr. Altes' Complaint, which was filed in federal court in
California, alleges that through both misrepresentations and
omissions, Epic markets loot box Llamas in Fortnite Save the World
as highly likely to contain valuable loot, but in reality, the
Llamas do not contain the loot expected by the reasonable consumer,
and especially by the reasonable minor. The Complaint alleges that
Epic fails to disclose that the odds of receiving valuable loot are
next to nothing, and, if players knew the actual odds of receiving
the items they desired, they would not purchase the Llamas.
Sophia Gold, another attorney representing Mr. Altes, commented,
"In nearly every other game of chance, the odds of winning are
disclosed."
Mr. Altes, who brings his claims under California consumer
protection law, seeks both an injunction and a class-wide refund.
Contact:
Sophia Gold, Esq.
Kaliel PLLC
1875 Connecticut Ave., 10th Floor
Washington, D.C. 20009
Tel: (202) 350-4783
Email: sgold@kalielpllc.com
-- and --
Melissa S. Weiner, Esq.
Pearson, Simon & Warshaw, LLP
800 LaSalle Avenue, Suite 2150
Minneapolis, MN 55402
Tel: (612) 389-0601
Email: mweiner@pswlaw.com [GN]
EPIC GAMES: Faces Lawsuit Over Llama Loot Boxes
-----------------------------------------------
Eric Garrett, writing for comicbook, reports that controversy
surrounding loot boxes has been on the rise in recent years as more
and more developers continue to implement them in their games. That
said, Epic Games is now being sued over the Llama loot boxes
featured in Fortnite's Save the World mode.
One underage player's parent recently filed a lawsuit against the
Fortnite devs claiming that the loot boxes are part of a "predatory
scheme" that exploits players.
"Rising to the forefront in a multi-billion-dollar video game
industry, Epic has perfected a predatory scheme whereby it exploits
players, including minors, by inducing them to purchase in-game
loot boxes in the pursuit of the best in-game item schematics,
heroes, and survivors (collectively, "loot")," the plaintiff's
complaint reads.
This, of course, is referring to the blind loot boxes in Fortnite,
which Epic Games removed earlier this year. Instead, they are now
X-Ray Llamas, offering players a look at its contents before they
spend any money.
"The scheme plays out perfectly to the benefit of Epic: once
players are sufficiently invested in the game, Epic induces players
to purchase loot boxes in order to get better loot, which results
in massive revenue to Epic," the complaint continued. "Plaintiff,
like hundreds of thousands of consumers, fell for Epic's deceptive
sales practices and purchased Epic's Llamas hoping for rare and
powerful loot. Plaintiff did not receive that desired loot and
never had a realistic chance of doing so."
It's worth noting that the loot boxes have never been part of
Fortnite Battle Royale, and have only ever been in Save the World.
Before the introduction of X-Ray Llamas, however, the chances of
receiving what you desire were pretty slim.
Without Epic ever disclosing the drop rates, the parent feels that
their child, along with several other players, had been deceived,
which means this could very well turn into a class-action lawsuit.
[GN]
EVERCORE INC: Class Certification Bid in Suit v. E.G.L. Pending
---------------------------------------------------------------
Evercore Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on February 22, 2019, for the
fiscal year ended December 31, 2018, that a motion for class
certification is pending in the consolidated class action lawsuit
against Evercore Group L.L.C. (EGL).
Beginning in November 2016, several putative class actions were
filed, and thereafter consolidated, in the U.S. District Court for
the Eastern District of Texas relating to Adeptus Health Inc.'s
("Adeptus") June 2014 initial public offering and May 2015, July
2015 and June 2016 secondary offerings.
Among others, the defendants included Adeptus and the underwriters
in the offerings, including Evercore Group L.L.C. (EGL). On April
19, 2017, Adeptus filed for Chapter 11 bankruptcy and was
subsequently removed as a defendant.
On November 21, 2017, plaintiffs filed a consolidated complaint
that alleged as to the underwriters' violation of the Securities
Act of 1933 in connection with the four offerings. The defendants
filed motions to dismiss on February 5, 2018. On September 12,
2018, the defendants' motions to dismiss were granted as to the
claims relating to the initial public offering and May 2015
secondary offering, but denied as to the claims relating to the
July 2015 and June 2016 secondary offerings.
EGL underwrote 293,867 shares of common stock in the July 2015
secondary offering, representing an aggregate offering price of
approximately $30.8 million, but did not underwrite any shares in
the June 2016 secondary offering. On September 25, 2018, the
plaintiffs filed an amended complaint relating to the July 2015 and
June 2016 secondary offerings.
On December 7, 2018, the plaintiffs filed a motion for class
certification and the defendants filed an opposition to the motion
on February 8, 2019.
Evercore Inc., together with its subsidiaries, operates as an
independent investment banking advisory firm in the United States,
Europe, Latin America, and internationally. It operates through two
segments, Investment Banking and Investment Management. The company
was formerly known as Evercore Partners Inc. and changed its name
to Evercore Inc. in August 2017. Evercore Inc. was founded in 1995
and is headquartered in New York, New York.
EVERGREEN PROFESSIONAL: Barker Alleges Violation under FDPCA
------------------------------------------------------------
A class action lawsuit has been filed against Evergreen
Professional Recoveries, Inc. The case is styled as Jeffrey Barker,
on behalf of himself and all others similarly situated, Plaintiff
v. Evergreen Professional Recoveries, Inc., Defendant, Case No.
2:19-cv-00340 (W.D. Wash., March 7, 2019).
The docket of the case states the nature of suit as Consumer Credit
filed pursuant to the Fair Debt Collection Practices Act.
Evergreen Professional Recoveries, Inc. is a Data recovery service
in Bothell, Washington.[BN]
The Plaintiff is represented by:
Steve Edwin Dietrich, Esq.
SMITH & DIETRICH LAW OFFICES PLLC
400 UNION AVENUE SE, SUITE 200
OLYMPIA, WA 98501
Tel: (360) 918-7230
Email: steved@smithdietrich.com
- and -
Walter M Smith, Esq.
SMITH & DIETRICH LAW OFFICES, PLLC
400 UNION AVENUE SE, #200
OLYMPIA, WA 98501
Tel: (360) 918-3270
Email: walter@smithdietrich.com
FELDSOTT LEE: Hedayati Dismissed from FDCA Suit With Prejudice
--------------------------------------------------------------
Judge Andrew J. Guilford of the U.S. District Court for the Central
District of California - Southern Division dismissed the case,
MOHAMMAD HEDAYATI, on behalf of himself and all others similarly
situated, Plaintiff, v. FELDSOTT LEE PAGANO & CANFIELD; PARKSIDE
COMMUNITY ASSOCIATION, a non-profit mutual benefit corporation; and
DOES 1-10, inclusive Defendants, Case No. 8:18-cv-01479-AG-KES
(C.D. Cal.), in its entirety, with prejudice as to Plaintiff
Hedayati.
The parties have stipulated to the dismissal of the action in its
entirety, with prejudice as to Plaintiff Hedayati. The dismissal
is without prejudice as the class-action allegations and as to
other members of the putative alleged class. The parties are to
bear their respective attorneys' fees and costs.
A full-text copy of the Court's March 1, 2019 Order is available at
https://is.gd/IymfzB from Leagle.com.
Mohammad Hedayati, on behalf of himself and all others similarly
situated, Plaintiff, represented by Andrew Paul Rundquist --
andrew@rundquistlaw.com -- Law Office of Andrew P. Rundquist.
Feldsott Lee Pagano and Canfield, Defendant, represented by Keith
Gregory Adams -- kadams@mpbf.com -- Murphy Pearson Bradley and
Feeney & Stanley Feldsott -- feldsott@gmail.com -- Feldsott Lee
Pagano and Canfield.
Parkside Community Association, a Non-Profit Mutual Benefit
Corporation, Defendant, represented by Kimberly Ann Shields --
kshields@mpbf.com -- Murphy Pearson Bradley and Feeney & Keith
Gregory Adams -- kadams@mpbf.com -- Murphy Pearson Bradley and
Feeney.
FIAT CHRYSLER: Challenges Rear Wire Harness Class Action
--------------------------------------------------------
Law360 reports that Fiat says a Fiat vehicle owner cannot sustain a
nationwide putative class action seeking damages for purportedly
faulty rear wire harnesses based on his own failure to maintain and
repair his car. [GN]
FIAT CHRYSLER: Reached Final Settlements in Emission-Related Suits
------------------------------------------------------------------
Fiat Chrysler Automobiles N.V. said in its Form 20-F report filed
with the U.S. Securities and Exchange Commission on February 22,
2019, for the fiscal year ended December 31, 2018, that FCA US has
reached final settlements in emission-related class action
lawsuits.
On January 10, 2019, the company announced that FCA US reached
final settlements on civil, environmental and consumer claims with
the U.S. Environmental Protection Agency ("EPA"), U.S. Department
of Justice, the California Air Resources Board, the State of
California, 49 other States and U.S. Customs and Border Protection,
for which we have accrued 748 million (EUR), of which approximately
350 million (EUR) will be paid in civil penalties to resolve
differences over diesel emissions requirements.
The company also announced that FCA US had reached settlements in
connection with a putative class action on behalf of consumers in
connection with which FCA US agreed to pay an average of $2,800 per
vehicle for each eligible customer affected by the recall.
Fiat Chrysler said, "We remain subject to diesel emissions-related
investigations by the U.S. Securities and Exchange Commission and
the U.S. Department of Justice, Criminal Division. In addition, we
remain subject to a number of related private lawsuits and the
potential for additional claims by consumers who choose not to
participate in the class action settlement."
Fiat Chrysler Automobiles N.V., together with its subsidiaries,
designs, engineers, manufactures, distributes, and sells vehicles,
components, and production systems. The company operates through
five segments: NAFTA, LATAM, APAC, EMEA, and Maserati. The company
was formerly known as Fiat S.p.A. and changed its name to Fiat
Chrysler Automobiles N.V. in October 2014. Fiat Chrysler
Automobiles N.V. was founded in 1899 and is based in London, the
United Kingdom.
FIAT CHRYSLER: Suits v. FCA US on UAW-Chrysler Matters Dismissed
----------------------------------------------------------------
Fiat Chrysler Automobiles N.V. said in its Form 20-F report filed
with the U.S. Securities and Exchange Commission on February 22,
2019, for the fiscal year ended December 31, 2018, that the
putative class action lawsuits against FCA US arising from a
government probe into the company's dealings with the UAW have been
dismissed at the trial court stage, but remain subject to appeal.
Fiat Chrysler said, "In connection with an on-going government
investigation into matters at the UAW-Chrysler National Training
Center, the U.S. Department of Justice has brought charges against
a number of individuals including former FCA US employees and
individuals associated with the UAW for, among other things, tax
fraud and conspiring to provide money or other things of value to a
UAW officer and UAW employees while acting in the interests of FCA
US, in violation of the Labor Management Relations (Taft-Hartley)
Act." The company continues to cooperate with this investigation.
Several putative class action lawsuits have been filed against FCA
US in U.S. federal court alleging harm to UAW workers as a result
of these acts. Those actions have been dismissed at the trial court
stage, but remain subject to appeal.
Fiat Chrysler said, "At this stage, we are unable to reliably
evaluate the likelihood that a loss will be incurred or estimate a
range of possible loss."
Fiat Chrysler Automobiles N.V., together with its subsidiaries,
designs, engineers, manufactures, distributes, and sells vehicles,
components, and production systems. The company operates through
five segments: NAFTA, LATAM, APAC, EMEA, and Maserati. The company
was formerly known as Fiat S.p.A. and changed its name to Fiat
Chrysler Automobiles N.V. in October 2014. Fiat Chrysler
Automobiles N.V. was founded in 1899 and is based in London, the
United Kingdom.
FITNESS NORTHWEST: Terranella Files TCPA Suit in Washington
-----------------------------------------------------------
A class action lawsuit has been filed against Fitness Northwest
LLC. The case is styled as Carl Terranella, individually and on
behalf of all others similarly situated, Plaintiffs v. Fitness
Northwest LLC, a Washington limited liability company, Defendant,
Case No. 2:19-cv-00358 (W.D. Wash., March 11, 2019).
The lawsuit was filed under the Telephone Consumer Protection Act.
Fitness Northwest LLC is a Physical fitness program in Redmond,
Washington.
The Plaintiff is represented by:
Avi R. Kaufman, Esq.
KAUFMAN P.A.
400 NW 26TH STREET
MIAMI, FL 33127
Tel: (305) 459-5881
Email: kaufman@kaufmanpa.com
- and -
Eric R Draluck, Esq.
PO BOX 11647
BAINBRIDGE ISLAND, WA 98110
Tel: (206) 605-1424
Email: edraluck@gmail.com
- and -
Stefan Coleman, Esq.
LAW OFFICE OF STEFAN COLEMAN, P.S.
201 S. BISCAYNE BLVD.
MIAMI, FL 33131
Tel: (877) 333-9427
Email: law@stefancoleman.com
FMM ENT.: Appeals from Orders Barring Dialogue w/ Glass Class Nixed
-------------------------------------------------------------------
In the case, TYRELL GLASS; et al., Plaintiffs-Appellees, v. FMM
ENTERPRISES, INC.; et al., Defendants-Appellants, Case No. 18-55291
(9th Cir.), the U.S. Court of Appeals for the Ninth Circuit
dismissed the appeal of Defendants FMM Enterprises, Inc., GTPD
Enterprises, Inc., Cynthia Walsh, Ryan McAweeney, and Neil Billock
from two district court orders that temporarily forbid the parties
in the putative class action from communicating with the putative
class members until a curative notice can be approved by the court
and distributed for lack of jurisdiction.
The Court explained that the district court's orders, which were
issued under Federal Rule of Civil Procedure 23(d), are not
injunctions for purposes of 28 U.S.C. Section 1292(a)(1).
Moreover, they can be effectively challenged by direct appeal after
a final judgment. Because they can be effectively reviewed on
appeal from a final judgment, the district court's orders are also
not final collateral orders. Finally, mandamus relief is not
appropriate in the case. None of the factors the Court is required
to consider when deciding whether to grant this extraordinary
remedy favor granting the mandamus.
A full-text copy of the Court's March 1, 2019 Order is available at
https://is.gd/LzI1YQ from Leagle.com.
FORT 250: New York County Sup. Grants Leave to Amend Gould Suit
---------------------------------------------------------------
In the case, MORGAN GOULD, STEVEN ESTEVEZ, and ANNE DOHERTY, on
behalf of themselves and all others similarly situated, Plaintiffs,
v. FORT 250 ASSOCIATES, LLC, Defendant, Docket No. 160190/2017,
Motion Seq. No. 002 (N.Y. Sup.), Judge Robert D. Kalish of the
Supreme Court for the New York County granted the Plaintiffs'
motion for an order granting them leave to amend the complaint to
the extent that the Plaintiff is granted leave to serve Defendant
per the CPLR with an amended complaint alleging everything in the
Proposed Complaint except the proposed fourth cause of action.
On Dec. 14, 2018, the Court issued a decision and order denying the
Plaintiffs' motion seq. 001 for class certification. The matter
involves the Plaintiffs and a proposed class who are all tenants in
a residential apartment building. The Plaintiff commenced an
action against the Defendant landlord on Nov. 15, 2017, alleging
that their building is rent-stabilized and that the Defendant
engaged in a scheme to evade the Rent Stabilization Law. The Court
denied the prior motion with leave to renew based upon that the
Plaintiffs' definition of the class was overbroad and undefined as
initially pled.
In the instant motion, the Plaintiffs seek leave to amend their
complaint to address the issues raised in their motion for class
certification. They argue that they seek to amend to clarify the
statutory period, to distill the allegations, to refine the
definition of the proposed class, and to allocate the causes of
action amongst the proposed class and subclasses. They further
argue that the changes do not prejudice the Defendant.
The Plaintiffs have annexed to their motion a redline and clean
copy of their proposed amended class action complaint. The
154-paragraph Proposed Complaint alleges causes of action for: (1)
declaratory relief; (2) violation of the Rent Stabilization Law
entitling the sub-class to reformed leases; (3) violation of the
Rent Stabilization Law entitling the class to damages; (4)
violation of General Business Law Section 349; and (5) legal fees.
The Defendant in its opposition papers advances a two-point
argument. Its first point is that the motion should be denied
because it does not make the required showing of merit: an
affidavit substantiating the claims in the Proposed Complaint. The
Defendant's second point is that each cause of action in the
Proposed Complaint lacks merit.
The Plaintiffs argue in reply that they have sufficiently
particularized their Proposed Complaint in accordance with the
Court's decision on motion seq. 001. They then argue that they
have already annexed sufficient documentary evidence as to the
merits of their Proposed Complaint to their prior motion for class
certification. In addition to asking for its motion for leave to
amend to be granted, the Plaintiffs then request in the "wherefore"
clause that the Court grants class certification and appoint
Grimble & LoGuidice, LLC and the Law Offices of Jack Lester, Esq.,
as the co-counsel to the class.
Contrary to the Defendant's contentions, Judge Kalish finds that a
plaintiff is not required to support a motion to amend the
complaint with an affidavit of merit. Any other case law requiring
an affidavit of merit is "older precedent" and is not to be
followed. As such, he rejects point one of the Defendant's
two-point argument.
Turning to the Defendant's second point, the Judge finds that
neither the "rent freeze" as characterized by the Defendant in its
opposition papers nor the application of the "default formula" as
termed by the Defendant constitute a penalty prohibited in a class
action. It was already resolved in the prior motion that the
Plaintiffs have waived any treble damages, in accordance with
Borden v 400 East 55th Street Associates, L.P. Moreover, the
Proposed Complaint does not seek treble damages. The Defendant's
reliance on Sperry v Crompton Corp. is misplaced, in that it also
deals specifically with "treble" damages in a class action --
there, regarding alleged antitrust violations.
The Judge also rejects the Defendant's argument as to the first,
second, and third causes of action in the Proposed Complaint. He
finds that, for the purposes of the instant motion for leave to
amend, the Plaintiff has shown that the first, second, and third
causes of action are not palpably insufficient or clearly devoid of
merit. The Plaintiffs' request for the use of the "default
formula" is fact-dependent and will, if applied, serve merely to
return to their monies which should not have been taken from them
in the first instance. He finds that such remedies are
compensatory in nature and are not penalties within the meaning of
CPLR 901 (b).
As to the fourth cause of action alleging violations of General
Business Law Section 349, he agrees with the Defendant that the
Plaintiffs' allegations in the Proposed Complaint present only
private disputes between landlords and tenants, and not
consumer-oriented conduct aimed at the public at large, as required
by the statute. The Judge finds further that the damages alleged
in the fourth cause of action are indirect and derivative of the
injuries alleged to have been sustained by the Plaintiffs in the
first, second, and third causes of action, and are therefore
barred.
As to the fifth cause of action for legal fees, the Judge finds
that a Plaintiff may properly allege a cause of action for
attorney's fees based upon a violation of a statute. While the
Plaintiffs' recovery under its fifth cause of action necessarily
depends upon what happens during the course of litigation and is
not premised upon a contract, but upon a statute, the Defendant's
objection to the Plaintiff proceeding with a discrete legal fees
cause of action is a complaint about form over substance that is
ultimately unavailing. As such, the Judge finds that the Plaintiff
has shown for the purposes of the instant motion that its fifth
cause of action is not palpably insufficient or clearly devoid of
merit.
As to the Plaintiffs' request to deem the Proposed Complaint
interposed, that request is denied, as the Plaintiffs must revise
the Proposed Complaint in accordance with the Order to remove the
fourth cause of action. As to the Plaintiffs' request in its reply
papers that the Court grants class certification and appoints
Grimble & LoGuidice, LLC and the Law Offices of Jack Lester, Esq.,
as the co-counsel to the class, that request is premature. The
Plaintiffs will move for class certification in accordance with the
CPLR.
Accordingly, Judge Kalish granted the Plaintiffs' motion to the
extent that the Plaintiff is granted leave to serve the Defendant
per the CPLR with an amended complaint alleging everything in the
Proposed Complaint except the proposed fourth cause of action,
provided that the Plaintiff serves a copy of the Order with notice
of entry on the Defendant within 10 days of the date of the
decision and order on this motion and serves the amended complaint
within 20 days of service of the order. The foregoing constitutes
the decision and order of the Court.
A full-text copy of the Court's March 1, 2019 Decision and Order is
available at https://is.gd/XQH4hg from Leagle.com.
GENENTECH: Faces Class Action Over Cancer Medications
-----------------------------------------------------
A class action lawsuit was filed in San Mateo Superior Court on
Feb. 27 accusing biotechnology giant Genentech of exploiting cancer
patients by packaging cancer medications in vials that are too
large for most patients. Because the unused portion of the
medications cannot be safely stored after the first use, the excess
must be discarded. Genentech, however, charges and is paid for all
the medication regardless of the amount that must be discarded.
According to the lawsuit, Genentech's decision to package some of
its most expensive medications so as to maximize waste is not an
oversight; instead, it is an intentional business scheme aimed at
increasing Genentech's profits. These profits, however, come at the
expense of extra costs incurred by taxpayers, private health
insurers and ultimately cancer patients in desperate need of these
lifesaving pharmaceuticals.
"When patients are at their lowest point, fighting tooth and nail
just to live another day, Genentech gouges them for drugs the
company knows the patient will never use," said one of the lead
attorneys Mike Arias of Arias Sanguinetti Wang & Torrijos.
"Genentech needs to be held accountable for taking advantage of
some of the sickest people in our country just so it can increase
revenue."
Lawsuit's Allegations
A 2016 study projected that payments for wasteful portions of just
18 cancer drugs, including three manufactured by Genentech, would
total $1.8 billion in revenues received by the pharmaceutical
companies with another $1 billion in markups paid to doctors and
hospitals. For three Genentech products alone, the total was more
than half a billion dollars. This is the cost of "waste" for just
one year.
"The pharmaceutical companies are given carte blanche to run up the
tab on consumers and taxpayers in this country," said Richard
Cornfeld of the Law Office Of Richard S. Cornfeld, LLC. "How can
people struggling to stay alive battle against multi-billion-dollar
companies like Genentech which know how to manipulate the system?"
A group of cancer researchers found the federal Medicare program
and private health insurers are forced to waste nearly $3 billion
every year buying cancer medicines that are thrown away because
drug makers distribute the drugs only in vials that hold too much
for most patients. In addition, some of these costs are passed on
to patients with cancer and other serious diseases to the tune of
hundreds of millions of dollars a year. These costs are a result of
Genentech's deliberate packaging.
Class Rep Andrew Williamson
The cost of Andrew Williamson's treatment with Genentech's cancer
drug Rituxan is an example of these staggering costs. Because
Genentech supplies Rituxan only in large single-use vials, Andrew
was forced to use vials totaling 800 mg for each treatment even
when the prescribed dosage was less than that. The charges for the
unused portions of Rituxan totaled $11,878.82. If Genentech had
simply added a smaller vial of Rituxan, the charges for unused
Rituxan would have been only $1,923.25, representing a savings of
$9,955.67.
"Andrew's struggle is the struggle of every person who needs a
Genentech-manufactured drug," said Kevin Carnie of The Simon Law
Firm. "All he was focused on throughout his treatment was getting
better, staying alive, and spending more time with his loved ones;
but, the outrageous cost of Rituxan was like a second grim reaper
hanging over him on a daily basis."
The class action is brought by Andrew Williamson and on behalf of
other end payors (patients and insurers) to recover the amounts
they necessarily spent, through no fault of their own, on wasted
medicine sold by Genentech.
"Andrew's is just one story, there are countless others who had to
pay extravagant prices in order to get the care they needed," said
attorney Brian Wolfman.
The case is Andrew Williamson v. Genentech, Inc., San Mateo
Superior Court, Case No. 19CIV01022.
To read the complaint -
https://drive.google.com/file/d/1kwETwgyvnzWk795HHR4GPRnSx6JJx05E/view?usp=sharing.
About Arias Sanguinetti Wang & Torrijos, LLP
With offices in Oakland, Los Angeles, Las Vegas and Montreal, Arias
Sanguinetti Wang & Torrijos -- https://aswtlawyers.com --
represents clients in complex litigation in state and federal
courts throughout the United States. Some of its practice areas
include: Class Actions, Mass Torts, Major Personal Injury,
Employment Law, and Intellectual Property Rights.
About The Simon Law Firm, P.C.
At The Simon Law Firm, P.C. -- https://www.simonlawpc.com/ -- its
mission is to provide the highest-quality legal services with
integrity, professionalism, and respect for our clients and the
greater community. Its St. Louis-based law firm consistently
achieves some of the largest verdicts and settlements in the state
of Missouri, and we are regularly covered in the press for cases
ranging from personal injury to intellectual property to consumer
fraud.
Law Office of Richard S. Cornfeld, LLC
Based in St. Louis, The Law Office of Richard S. Cornfeld, LLC --
http://www.cornfeldlegal.com-- pursues justice for consumers and
employees through class action remedies. Richard Cornfeld founded
the firm after a 30-year career at one of St. Louis' major law
firms defending some of the country's largest lawsuits. Today, his
firm fights for and obtains redress for those wronged by
corporations and other entities throughout the United States. [GN]
GLOBAL DISTRIBUTION: Martin Seeks Unpaid Overtime Wages Under FLSA
------------------------------------------------------------------
Alfredo Martin, Omar Gutierrez, Jorge Sanchez-Pino, Jorge
Sanchez-Hernandez, William Sanchez, and Rudy Perez-Valdes,
individually and on behalf of other similarly-situated individuals,
Plaintiffs, v. Global Distribution & Logistics LLC, a Florida
Limited Liability Company; Danay Salazar, Alejandro Vimos, and
Melissa Ballestero, individually, Defendants, Case No.
1:19-cv-20913 (S.D. Fla., March 8, 2019) is an action brought by
Plaintiffs in their individual capacity, and as collective
representatives on behalf of all other similarly situated
individuals, to secure and vindicate rights afforded to them by the
Fair Labor Standards Act ("FLSA").
Plaintiffs and FLSA Collective Plaintiffs regularly worked overtime
hours (that is, hours in excess of 40 hours per week), and were not
paid overtime compensation at the lawful overtime rate, based, in
part, upon the Defendants' custom and practice of refusing to pay
the same and/or misclassifying FLSA Collective Plaintiffs as
exempt, and failing to compensate them in accordance with the
criteria for a valid exemption, among other violations of FLSA.
When some employees of the Defendants would complain about the
foregoing, the Defendants would fire such employees, says the
complaint.
Plaintiffs were employed as warehouse employees of the Defendants
from December of 2014 to March of 2019.
Global Distribution & Logistics LLC is a Florida Limited Liability
Company, doing business in Miami-Dade County, Florida.[BN]
The Plaintiffs are represented by:
Alex Tirado-Luciano, Esq.
Monica Tirado, Esq.
TIRADO-LUCIANO & TIRADO
Gables International Plaza
2655 LeJenue Rd., Suite 1109
Coral Gables, FL 33134
Phone: 305-390-2320
Facsimile: 305-390-2321
Email: atl@TLTirado.com
mt@TLTirado.com
GLOBAL EAGLE: Court Enters Judgment in M&M Securities Suit
----------------------------------------------------------
Judge Percy Anderson of the U.S. District Court for the Central
District of California entered judgment in the case, M & M HART
LIVING TRUST, et al., Plaintiffs, v. GLOBAL EAGLE ENTERTAINMENT,
INC., et al. Defendants, Case No. CV 17-1479 PA (MRWx) (C.D.
Cal.).
Pursuant to the Settlement Agreement filed on Oct. 5, 2018, between
the Plaintiffs and the Defendants, and the Court's March 5, 2019,
Minute Order granting the Motion for Final Approval of Class Action
Settlement and the Motion for Attorneys' Fees, the Judge ordered
that the parties are to perform the Plan of Allocation and issue
distributions to the members of the Settlement Class with valid
claims as described in the Settlement Agreement.
If any amounts remain in the Settlement Fund after the payment of
eligible claims and litigation expenses and attorneys' fees, no
portion of the Settlement Fund will revert to the Defendants. Any
amounts remaining in the Settlement Fund will be distributed to the
Investor Protection Trust with specific direction Case
2:17-cv-01479-PA-MRW Document 111 Filed 03/05/19 Page 2 of 2 Page
ID #:2988 that such funds be used for investor education.
He dismissed the action with prejudice. The Court retains
jurisdiction over the implementation of the Settlement and any
distribution of the Settlement Fund.
A full-text copy of the Court's March 5, 2019 Judgment is available
at https://is.gd/qynjFn from Leagle.com.
M and M Hart Living Trust, Individually and on Behalf of All Others
Similarly Situated, Plaintiff, represented by Adam Marc Apton --
AApton@zlk.com -- Levi and Korsinsky LLP, pro hac vice, Adam C.
McCall -- amccall@zlk.com -- Levi and Korsinsky LLP, Shimon
Yiftach, Bronstein Gewirtz and Grossman, Jennifer Pafiti, Pomerantz
LLP & Nicholas I. Porritt -- nporritt@zlk.com -- Levi and Korsinsky
LLP, pro hac vice.
Randi Williams, Plaintiff, represented by Adam Marc Apton, Levi and
Korsinsky LLP & Adam C. McCall, Levi and Korsinsky LLP.
Global Eagle Entertainment Inc., David M. Davis & Thomas E.
Severson, Jr., Defendants, represented by James G. Kreissman --
jkreissman@stblaw.com -- Simpsom Thacher and Bartlett LLP & Stephen
Blake -- sblake@stblaw.com -- Simpson Thacher and Bartlett LLP.
GOSPEL FOR ASIA: Agrees to Refund Donations Totalling $37MM
-----------------------------------------------------------
Barry Duke, writing for thefreethinker, reports that Gospel for
Asia, founded over 40 years ago by K P Yohannan, above, solicits
money from Christians for a variety of charitable projects in Asia,
but -- after a long-running class action lawsuit -- has agreed to
refund donations totalling $37-m.
But let's be clear of one thing: GFA did not siphon off donations
for self-aggrandisement. Or so it insists in the settlement
agreement.
The lawsuit, filed in 2015, accused GFA of racketeering, fraud, and
financial mismanagement. Mr. Yohannan and his associates were
accused of using donations earmarked for charitable purposes within
its mission fields to build personal residences and a headquarters
in Texas.
On Feb. 28, GFA announced that the lawsuit which had threatened the
ministry's survival will soon come to a close, and donors will be
refunded money they coughed up for projects like "Jesus wells".
Although GFA will ultimately pay $37-m as part of a settlement
fund, some of which will have to be raised -- through further
donations, no doubt -- over the course of the next year, GFA
stresses that the settlement is not an acknowledgment of guilt.
Additionally, the settlement does not admit any liability or
wrongdoing whatsoever.
The language of the agreement seems to refute a claim reported in
the media last year that as little as 13 percent of donations to
GFA make it to the mission field. The settlement states:
The parties also mutually stipulate that all donations designated
for use in the field were ultimately sent to the field.
Mr. Yohannan said in a statement:
For three long years, our ministry wondered more often than I'd
like to admit if we would survive this ordeal. We are so incredibly
thankful for the prayers and the ongoing support of our many
faithful friends and partners. We look today toward the future with
optimism in our hearts 'being confident of this one thing: that He
who began a good work in [us] will continue to perfect it.'
In 2016, Narada News kicked off an expose of Mr. Yohannan with the
words:
Lies, hypocrisy, narcissism and manipulation have been the
foundation on which K P Yohannan has built his personal empire
using the money of devout Christians from the West who donated
funds for charity that were misused by this godman. Find out the
truth behind this man who became a self professed Episcopal bishop
from Pentecostal pastor.
The report said the "godman" was receiving a salary of $100,000 a
year, but paying his employees between $73 and $80 a month.
Johnnie Moore, the founder of the evangelical public relations firm
The KAIROS Company, said as GFA's acting spokesperson that it "did
not act fraudulently" and that "all the donations they received
made it to the field."
He added:
The agreement to settle was, in part, precipitated by a concern
that the ministry could continue to bear the weight of defending
itself.
Class action lawsuits are enormous burdens for large, for-profit
companies. So one needs just to imagine the weight of an action
like this against a not-for-profit organization. The good news is
that the lessons learned from this burdensome series of events will
make the ministry stronger.
The settlement agreement stipulates that approximately 200,000 GFA
donors will be eligible to receive a portion of the agreed upon
settlement.
Mr. Moore said:
The ministry hopes that those who receive these funds will simply
turn around and donate the same amount of money to another
worthwhile ministry. Their desire is only for the Lord's work to be
done.
If they've got any sense, they'll hopefully do no such thing. Once
bitten and all that . . .
This report says GFA will also "attempt to comply" with all
Evangelical Council for Financial Accountability (ECFA) guidelines.
In 2015, GFA was kicked out of the organisation it helped to
establish after ECFA concluded that GFA misled donors, mismanaged
resources, had an ineffective board, and violated most of the
accountability group's core standards.
GFA was also expelled from the National Religious Broadcasters
after financial accountability concerns were voiced. [GN]
GOSPEL FOR ASIA: Settles Class Action Over Donations
----------------------------------------------------
Kayla Koslosky, writing for ChristianHeadlines.com, reports that
Non-Profit missions organization Gospel for Asia announced on Feb.
28 that after three years in court, they have reached a settlement
in a class-action lawsuit levied against.
According to a statement released by GFA, the organization was
accused of "racketeering, fraud and financial mismanagement."
Christianity Today notes that the organization was facing two
lawsuits which claimed that GFA was only sending "13 percent of its
donations to the field instead of the oft-promised 100 percent."
The two suits eventually merged and became a class-action suit with
more than 200,000 people -- those who donated to GFA between
January 2009 and September 2018 -- looking for reimbursement.
Christianity Today reports that the suit originally requested $376
million from GFA, but the settlement, which was submitted to a
federal court for "preliminary approval," will make all members of
the class eligible for only 10 percent of the requested amount --
$37 million. The settlement would also require GFA to surrender a
board seat to Lead plaintiff Garland Murphy.
GFA will also be required to remove the founder K.P. Yohannan's
wife Gisela from the board to be replaced by someone approved by
both Murphy and Yohannan.
Despite reaching a settlement in court, GFA is maintaining their
innocence. A statement released by the organization reads: "The
settlement is not an acknowledgment of guilt by Gospel for Asia
and, in fact, the settlement agreement reads in section 1.6,
'[Gospel for Asia's] position is that the evidence demonstrates (i)
all funds designated to the field were sent to the field and used
for ministry purposes; and (ii) no Individual Defendant, as defined
herein, received any improper personal gain or enrichment from or
related to donated funds. Without admitting any liability or
wrongdoing whatsoever and expressly denying any such liability or
wrongdoing and while maintaining they have substantial factual and
legal defenses to all claims and class allegations in the Murphy
Litigation and Dickson Litigation . . .'"
According to Christianity Today, court documents show that GFA
asserted that all funds designated for the field went to the field,
but there was "no guarantee" that the money would go toward the
"exact" project it was initially intended for.
"For three long years, our ministry wondered more often than I'd
like to admit if we would survive this ordeal," GFA's founder K.P.
Yohannan said of the legal action.
"We are so incredibly thankful for the prayers and the ongoing
support of our many faithful friends and partners. We look today
toward the future with optimism in our hearts 'being confident of
this one thing: that He who began a good work in [us] will continue
to perfect it.'"
Yohannan added, "I'm most proud of the fact that we managed to
continue to serve those in need even as we fought every day to
survive ourselves." [GN]
GROUPON INC: Court Denies Dancel's Bid to Certify Instagram Class
-----------------------------------------------------------------
The Hon. Ronald A. Guzman denies the Plaintiff's motion for class
certification in the lawsuit entitled Christine Dancel,
individually and on behalf of others similarly situated v. Groupon,
Inc., Case No. 1:18-cv-02027 (N.D. Ill.).
This case arises from Groupon's use of photos posted by individuals
on their Instagram accounts. In short, Groupon developed software
in 2015, which it called the Instagram Widget, that would ask
Instagram to locate photographs taken at the businesses for which
Groupon hosted Deal Pages and Merchant Pages, according to the
Court's memorandum opinion and order.
Ms. Dancel, who went by the username "meowchristine," brought the
instant action on behalf of herself and others similarly situated
for purported violations of the Illinois Right to Publicity Act
("IRPA"). She sought certification of these class and subclass:
* Instagram Class:
All persons in the United States who maintained an Instagram
account and whose photograph (or photographs) from such
account was (or were) acquired and used on a groupon.com
webpage for an Illinois business (the "Class").
* Personal Photo Subclass:
All members of the Instagram Class whose likeness appeared
in any photograph acquired and used by Groupon (the
"Subclass").
In his Memorandum Opinion and Order, Judge Guzman opines that the
Plaintiff's assertion that "the Court can commonly answer whether
Instagram usernames . . . categorically 'serve to identify that
individual to an ordinary, reasonable viewer [of Groupon's
website]'" is unpersuasive and misses the ultimate point of the
predominance inquiry.
While it is true that the question of whether "any Instagram
username identifies an individual to 'a ordinary, reasonable
viewer' is a question common to every putative class members'
claim," this argument ignores the individual inquiry that is the
essence of determining "identity" under the IRPA, Judge Guzman
held. He adds that the Court finds that neither the proposed
Instagram Class nor the Personal Photo Subclass is "sufficiently
cohesive" to satisfy Rule 23(b)(3)'s predominance requirement.[CC]
GRUBB & ASSOCIATES: Russell Moves to Certify Collective Action
--------------------------------------------------------------
The Plaintiff in the lawsuit captioned JESSICA BROOKE RUSSELL,
individually and on behalf of others similarly situated v. GRUBB &
ASSOCIATES, INC. and JOSEPH GRUBB, Case No. 3:18-cv-00463-PLR-HBG
(E.D. Tenn.), moves the Court for an order, pursuant to the Fair
Labor Standards Act:
-- conditionally certifying a collective action in this matter
against the Defendants;
-- authorizing her to send notice of the right to join this
lawsuit to all companionship employees, who worked for
Grubb from January 1, 2015, through December 31, 2017;
-- giving her a period of 90 days to distribute the Notice and
file consent forms with the Court;
-- directing the Defendants to provide telephone numbers,
e-mail addresses, and home mailing addresses of potential
opt-in plaintiffs no later than seven calendar days after
the date of the entry of the Order granting this Motion;
and
-- permitting her to provide the Notice to potential opt-in
plaintiffs via e-mail, in addition to U.S. mail.[CC]
The Plaintiff is represented by:
Frank P. Pinchak, Esq.
Doug S. Hamill, Esq.
BURNETTE, DOBSON & PINCHAK
711 Cherry Street
Chattanooga, TN 37402
Telephone: (423) 266-2121
E-mail: fpinchak@bdplawfirm.com
dhamill@bdplawfirm.com
- and -
Michael A. Wagner, Esq.
WAGNER, NELSON & WEEKS
701 Market Street, Suite 1418
Chattanooga, TN 37402
Telephone: (423) 756-7923
E-mail: maw@wagnerinjury.com
The Defendants are represented by:
S. David Lipsey, Esq.
LIPSEY, MORRISON, WALLER & LIPSEY, P.C.
1430 Island Home Avenue
Knoxville, TN 37920
Telephone: (865) 546-6321
E-mail: dlipsey@lmwl.law
GUAM: 9th Cir. Affirms Summary Judgment in Crawford Suit
--------------------------------------------------------
In the case, VICENTE PALACIOS CRAWFORD, individually and on behalf
of all others similarly situated, Plaintiff-Appellant, v. ANTONIO
B. WON PAT INTERNATIONAL AIRPORT AUTHORITY, GUAM; EDDIE BAZA CALVO;
RICARDO C. DUENAS, GIAA Board Chairman; ANTHONY ADA, In His
Official Capacity as Chairperson of the Guam Ancestral Lands
Commission, Defendants-Appellees, Case No. 17-16942 (9th Cir.),
Judge Leslie E. Kobayashi of the U.S. Court of Appeals for the
Ninth Circuit affirmed the district court's grant of summary
judgment in favor of the Defendants.
Around the time of World War II, the United States government took,
for little or no compensation, numerous tracts of real property
from private Guamanian landowners for military use. Crawford is
the son of two such landowners. The Plaintiff's ancestral land is
in the Tiyan region, where many of the taken properties were
subsequently transferred by the United States to the government of
Guam.
Defendant Antonio B. Won Pat International Airport Authority, Guam
("GIAA") currently operates the A.B. Won Pat International Airport,
which is located on ancestral lands in the Tiyan region, including
the Plaintiff's. In its several attempts to address this past
injustice, the government of Guam established administrative
entities and procedures to receive and resolve ancestral
landowners' claims for the taking of their lands without adequate
compensation. These efforts have a convoluted history of enactment
and partial repeal, as well as a lack of funding. As a result, no
claims by ancestral landowners whose land is currently being used
for public purposes have been considered and resolved through
compensation.
On Jan. 16, 2015, the Plaintiff filed the action against the GIAA
Defendants -- the GIAA and GIAA chairperson Ricardo C. Duenas --
and the Government Defendants -- Gov. Edward Calvo and Guam
Ancestral Lands Commission ("GALC") chairperson Anthony Ada -- and
asserts that lengthy delays in the compensation process violate his
constitutional rights to procedural due process and equal
protection.
The Government Defendants concede that the Plaintiff has rights
under the GALA as an ancestral landowner because of his mother's
ownership of Lot 5204, and that he is not likely to regain
possession or title because his land is still being used for the
airport.
On Aug. 16, 2002, Plaintiff submitted to GALC an Ancestral Title
and Compensation Application regarding Lot 5204. More than 130
ancestral landowners filed claims regarding lands being used by the
GIAA for the airport ("Airport Ancestral Lands Claims"). GALC has
not held any hearings regarding the Airport Ancestral Lands Claims,
and the government of Guam has not compensated any of these
ancestral landowners. Thus, the Plaintiff's ancestral land claim
remains unresolved.
Relevant to the instant appeal, the Complaint alleged the following
claims: a 42 U.S.C. Section 1983 claim against the Government
Defendants and Duenas alleging a denial of procedural due process
("Count I"); and a Section 1983 claim against the Government
Defendants and Duenas alleging a denial of equal protection ("Count
II").
On Sept. 1, 2016, the Plaintiff and the GIAA Defendants filed
motions for summary judgment. The Government Defendants filed a
counter-motion for summary judgment. The Court denied the
Plaintiff's motion, granted the GIAA Defendants' motion, and
granted in part the Government Defendants' motion. Judgment as a
matter of law was granted to the Government Defendants and Duenas
as to Count I, and summary judgment was granted to the Government
Defendants as to Count II.
The timely appeal followed. The Plaintiff appeals the district
court's grant of summary judgment in favor of the Defendants.
The only claims at issue in the appeal are Counts I and II.
Because the GIAA was not named in either count, it is not a proper
party to the appeal and therefore must be dismissed. Additionally,
Duenas is no longer named in Count II. Thus, Count I is the only
claim against Duenas before the Court.
The crux of Count II is that the procedures established in Section
80104 to process ancestral property right claims are inadequate and
thus deprive the Plaintiff of his Fourteenth Amendment right to
procedural due process. The district court granted summary
judgment on Count II in favor of Duenas.
Judge Kobayashi finds that no rules or regulations exist to
implement and govern the Land Bank Trust. This lack of
implementing regulations supports the district court's conclusion
that the Plaintiff's ancestral property right is not a
constitutionally protected interest for purposes of the Due Process
Clause.
Next, she finds that the Chapter 80 provisions, whether examined
individually or read together, do not give rise to a protected
property interest under the Due Process Clause. Although the
Plaintiff has a recognized ancestral property right under Section
80102, neither Section 80102 nor any of the other statutes in
Chapter 80 supports the Plaintiff's position that he has a
legitimate claim of entitlement to just compensation.
The Judge also finds that none of the Guam Public Laws raised by
the Plaintiff, individually, read together, or read together with
Chapter 80, give rise to a protected property interest for purposes
of a due process analysis. While the Guam legislature has clearly
established a process to receive, evaluate, and compensate
ancestral property right claims, the legislature did not design the
process to be sufficiently definite to transform the Plaintiff's
expectation into a property right entitled to due process
protection. The district court's grant of summary judgment in
favor of the Government Defendants as to Count I is affirmed.
Judge Kobayashi holds that the classifications established in the
Chapter 80 statutory scheme survive rational basis review, and she
affirmed the district court's grant of summary judgment in favor of
the Government Defendants as to Count II.
Accordingly, she dismissed as to the GIAA; dismissed Count II as to
Duenas; and otherwise affirmed.
A full-text copy of the Court's March 1, 2019 Opinion is available
at https://is.gd/plvDXy from Leagle.com.
Scott M. Grzenczyk -- smg@girardgibbs.com -- (argued), Jordan
Elias, and Daniel C. Girard -- dcg@girardgibbs.com -- Girard Gibbs
LLP, San Francisco, California; Ignacio Cruz Aguigui --
ica@aguigui.com -- The Law Offices of Ignacio Cruz Aguigui,
Tamuning, Guam; for Plaintiff-Appellant.
Genevieve Rapadas -- grapadas@calvofisher.com -- (argued), Jay D.
Trickett, and Kathleen V. Fisher -- kfisher@calvofisher.com --
Calvo Fisher & Jacob LLP, Hagåtña, Guam, for Defendants-Appellees
Antonio B. Won Pat International Airport Authority, Guam, and
Ricardo C. Duenas.
David J. Highsmith -- dhighsmith@guamag.org -- (argued), Assistant
Attorney General; Elizabeth Barrett-Anderson, Attorney General;
Office of the Attorney General, Tamuning, Guam; for
Defendants-Appellees Eddie Baza Calvo and Anthony Ada.
HANNA LAW: McClain Sues Over FDCPA Violation
--------------------------------------------
Theodore McClain, individually and on behalf of others similarly
situated, Plaintiff, v. Dalen Patrick Hanna, Hanna Law PLLC, and
Hanna LLP, Defendants, Case No. 2:19-cv-10700-TGB-EAS (E.D. Mich.,
March 8, 2019) asserts violation of the Fair Debt Collection
Practices Act, ("FDCPA") and mirror state law, the Michigan
Regulation of Collection Practices Act, ("MRCPA").
According to the complaint, the Defendants received Plaintiff's
letter dated April 5, 2018. However, the Defendants did not provide
verification of the debt. Plaintiff had to go to the original
creditor to find out information about the debt.
The debt is for medical services and the principal amount of the
debt is $63.22. There is no contractual provision related to the
subject debt that provides for attorney's fees or interest.
Plaintiff, after traveling to the original creditor's place of
business, determined that the debt with Nationwide Foot & Ankle
Care, P.C. was more than six-years old from the date the payment
was due when the letter dated March 26, 2018, was sent, says the
complaint.
Plaintiff is a natural person who resides in Wayne County,
Michigan.
Dalen Patrick Hanna is an attorney licensed by the State of
Michigan and the District of Columbia.
Hanna Law PLLC is a domestic Professional Limited Liability Company
organized under the laws of the State of Michigan on February 16,
2017.[BN]
The Plaintiff is represented by:
Curtis C. Warner, Esq.
WARNER LAW FIRM, LLC
350 S. Northwest HWY., Ste. 300
Park Ridge, IL 60068
Phone: (847) 701-5290
Email: cwarner@warner.legal
- and -
John A. Evanchek, Esq.
KELLEY & EVANCHEK PC
43695 Michigan Ave.
Canton, MI 48188
Phone: (734) 397-4540
Email: john@kelawpc.com
HECLA MINING: Suits over Klondex Mines Deal Consolidated
--------------------------------------------------------
Hecla Mining Company said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on February 22, 2019, for
the fiscal year ended December 31, 2018, that the remaining three
cases related to the proposed acquisition of Klondex Mines Ltd.,
have been consolidated into a single case entitled, Lawson v.
Klondex Mines Ltd., et al., No. 3:18-cv-00284.
Following the announcement of the company's proposed acquisition of
Klondex Mines Ltd. (Klondex), Klondex and members of the Klondex
board of directors were named as defendants in several putative
stockholder class actions brought by purported stockholders of
Klondex challenging the proposed merger.
The lawsuits were all filed in the United States District Court for
the District of Nevada.
On December 18, 2018, the remaining three cases were consolidated
into a single case, Lawson v. Klondex Mines Ltd., et al., No.
3:18-cv-00284 (D. Nev. June 15, 2018).
The plaintiffs generally claim that Klondex issued a proxy
statement that included misstatements or omissions, in violation of
sections 14(a) and 20(a) of the Securities Exchange Act of 1934, as
amended. The plaintiffs seek, among other things, to obtain
rescissory damages and recover attorneys' fees and costs.
Hecla Mining said, Although it is not possible to predict the
outcome of litigation matters with certainty, each of Klondex and
its directors believe that each of the lawsuits are without merit,
and the parties intend to vigorously defend against all claims
asserted.
Hecla Mining Company, together with its subsidiaries, discovers,
acquires, develops, and produces precious and base metal properties
worldwide. Hecla Mining Company was founded in 1891 and is
headquartered in Coeur d'Alene, Idaho.
HILL'S PET: Vitamin D Recall Prompts Multiple Class Actions
-----------------------------------------------------------
Jordan Tyler, writing for Pet Food Processing, reports that
multiple class action and individual civil lawsuits have been filed
against Hill's Pet Nutrition over the month of February 2019
claiming the company was negligent in recalling many of its
products for potentially containing toxic levels of vitamin D. The
recall involved approximately 675,000 cases of canned dog food.
Below are the known lawsuits filed against Hill's on this subject.
Bone et al. v. Hill's Pet Nutrition, Inc.
Florida citizen Kelly Bone, along with North Carolina citizen
Christina Sawyer and New York citizen Janine Buckley, filed a class
action lawsuit Feb. 11 against Hill's in the US District Court for
Eastern New York, claiming the company was aware or should have
been aware that its products contained excess levels of vitamin D
as early as February 2018. The suit argues, "As early as February
of 2018, 11 dog owners began to complain that Hill's Specialty Dog
Foods were causing their pets to display symptoms consistent with
vitamin D poisoning, such as "daily diarrhea, excessive thirst and
constant food begging . . . As a result of online consumer
complaints, Hill's thus knew or should have known of the elevated
vitamin D levels in the specialty dog foods by at least February of
2018."
In the lawsuit, Bone et al. stated, "Not only has Hill's sold
contaminated food, but it has dragged its feet in issuing a recall
and in including all contaminated food within the scope of the
recall. Hill's failure to promptly recall every contaminated
product sold under the Prescription Diet and Science Diet lines is
particularly egregious because it knew or should have known that
these products contained toxic levels of vitamin D." The suit also
refers to the series of other pet food recalls related to excess
levels of vitamin D starting in late 2018. All three plaintiffs in
this class action suit experienced the death of a pet dog they
believe was caused by the consumption of unsafe Hill's pet food.
Russel v. Hill's Pet Nutrition, Inc.
Also on Feb. 11, Florida residents Michael and Jodi Russell filed a
class action lawsuit against Hill's in the US District Court of
Northern Florida. The couple filed the suit in response to the
unexpected death of one of their dogs, Stella, who they fed Hill's
Prescription Diet i/d Digestive Care dog food to help with the
dog's pancreatitis. The Russell's stated, "Mr. Russell spoke with
the family vet on February 8, 2019, and was advised that, in the
veterinarian's opinion, ingestion of the Product was most likely
the cause of Stella's kidney failure. The veterinarian pointed out
that the blood work performed before Stella ingested the Product
showed normal renal function; but after ingesting the Product over
many days Stella went into renal failure."
The lawsuit filed by the Russell's also claims the eight other
brands who issued recalls in accordance with the US Food and Drug
Administration beginning November 2018 share a common manufacturer
with Hill's.
Navarette v. Hill's Pet Nutrition, Inc.
California citizen John Navarette filed a class action lawsuit
against Hill's on Feb. 12 in the US District Court for Northern
California, claiming he had been misled by the company's statements
to purchase a product that did not meet the same nutritional
standards promised by the company. Navarette purchased Hill's
Prescription Diet i/d Digestive Care dog food beginning Oct. 1,
2018 and fed it to his dog, Goliath. Navarette stopped feeding
Goliath the food in late December 2018 after he became ill. Goliath
has since recovered.
The lawsuit states, "At the time Navarrete purchased and fed the
Recalled Products to his dog, due to the false and misleading
claims, warranties, representations, advertisements, and other
marketing by Defendant, Navarrete was unaware that the Recalled
Products contained excessive amounts of vitamin D."
The lawsuit also states, "Defendant [Hill's] had a duty to disclose
to Plaintiff [Navarette] and the Subclass [others affected by
Hill's recalled products] that the recalled products contained
excessive and dangerous amounts of vitamin D for the following two
independent reasons: (a) Defendant had exclusive knowledge of the
information at the time of sale; and (b) Defendant made partial
representations to Plaintiff and the Subclass regarding the safety,
quality, and nutritional content of the Recalled Products."
Such representations of safety, quality and nutritional content
were listed in the lawsuit, including parts of Hill's website that
describe the brand's products as "Precisely Balanced: The Right
Nutrients in the Right Quantities," among other examples.
Sun-Dampier v. Hill's Pet Nutrition, Inc.
On Feb. 14, Jun Virginia Sun-Dampier filed a class action suit on
behalf of California residents who purchased any of Hill's products
containing excess vitamin D in the past four years. Her case rests
on six complaints, including several state consumer protection
violations, fraud, negligence and unjust enrichment. Sun-Dampier
was prompted to file the suit after suspecting her dog had consumed
Hill's Prescription Diet i/d Digestive Care dog food products
containing toxic levels of vitamin D and died Dec. 23, 2018.
The lawsuit states, "On December 3, 2018, the FDA issued a press
release warning pet owners about potentially toxic levels of
vitamin D in several brands of pet food, and noting that it was
working with a common contract manufacturer of pet food to provide
a comprehensive list of affected brands. Yet despite this warning,
Defendant did not issue a recall, and continued to manufacture and
sell the Products with toxic levels of vitamin D for months
afterward."
Jubinville et al v. Hill's Pet Nutrition, Inc.
Four women -- Rhode Island citizen Jennifer Jubinville, Illinois
citizen Jenna Sprengel, New York citizen Kelli Coppi, and Texas
citizen Laura Freeman -- on Feb. 15 filed a class action lawsuit
against Hill's questioning the validity of its nutritional claims
in light of the vitamin D recall. The allegations mentioned in the
lawsuit are similar to those made in Bone et al v. Hill's Pet
Nutrition, Inc.
The plaintiffs seeks monetary damages as well as, "an order forcing
Hill's to provide appropriate injunctive relief by ensuring that
all potentially affected products are identified on Hill's website
and removed from shelves and that the public is adequately notified
that they should not purchase and should immediately stop using the
tainted food, and their dogs should be taken to a veterinarian for
testing and whatever treatment is necessary."
Paliseno et al. v. Hill's Pet Nutrition, Inc.
On Feb. 22, Mississippi resident Diane Walton and New York resident
Amanda Paliseno filed a class action lawsuit against Hill's Pet
Nutrition on the basis of false advertising. The lawsuit states,
"As demonstrated by the recall discussed below and the thousands of
sickened and dead dogs who consumed Hill's Products, Defendant's
representations about quality, ingredient supply, and product
manufacturing and oversight are false." The lawsuit also alleges
the company is not justified in charging a premium price for its
products in light of the recall, claiming, "all class members
despite having paid a premium price for supposedly healthy dog food
marketed to be specifically formulated to address certain health
concerns and to meet certain ingredient supply, quality, and
manufacturing standards, did not receive what they paid for."
Aside from issuing a recall for the affected product, Hill's has
provided no additional information or comments. In the initial
recall, issued Jan. 31, 2019, the company stated, "We care deeply
about all pets and are committed to providing pet parents with safe
and high quality products. Hill's has identified and isolated the
error and, to prevent this from happening again, we have required
our supplier to implement additional quality testing prior to their
release of ingredients. In addition to our existing safety
processes, we are adding our own further testing of incoming
ingredients." [GN]
HONEYWELL INT'L: Levi & Korsinsky Named Class Action Lead Counsel
-----------------------------------------------------------------
Law360 reports that Levi & Korsinsky LLP has edged out Pomerantz
LLP in their competing bids to serve as lead counsel for a putative
investor's asbestos class action against Honeywell International
Inc. [GN]
HSBC BANK USA: Rubino Files Suit in S.D. New York
-------------------------------------------------
A class action lawsuit has been filed against HSBC Bank USA, N.A.
et al. The case is styled as John Rubino, Beverly Guity, Emily
Freidberg, Jerome Paticoff on behalf of themselves and all others
similarly situated, Plaintiff v. HSBC Bank USA, N.A., HSBC Mortgage
Corporation (USA), HSBC Bank USA, PHH Mortgage Corporation,
Defendants, Case No. 7:19-cv-02154-KMK (S.D. N.Y., Mar. 8, 2019).
The nature of suit is stated as Other Real Property.
HSBC Bank USA, N.A. provides personal and business banking products
and services. The company offers checking, savings, and
certificates of deposit accounts; home, home equity, mortgage, and
business loans; lines of credit options; and credit and debit
cards.[BN]
The Plaintiffs are represented by:
Peter Dexter St. Phillip, Jr., Esq.
Lowey Dannenberg, P.C.
44 South Broadway, Suite 1100
White Plains, NY 10601
Phone: (914) 997-0500
Fax: (914) 997-0035
Email: pstphillip@lowey.com
HUMBLE BUNDLE: Violates Disabilities Act, Traynor Suit Says
------------------------------------------------------------
Humble Bundle, Inc. is facing a class action lawsuit filed pursuant
to the Americans with Disabilities Act. The case is styled as
Yaseen Traynor, on behalf of himself and all others similarly
situated, Plaintiff v. Humble Bundle, Inc., Defendant, Case No.
1:19-cv-02112 (S.D. N.Y., March 7, 2019).
Humble Bundle, Inc. sells video games online. The company
facilitates buyers to play the games without an Internet
connection, back them up, and install them on Macs and PCs. Its
games work on Mac, Windows, and Linux platforms. The company was
incorporated in 2010 and is based in San Francisco, California. As
of October 13, 2017, Humble Bundle, Inc. operates as a subsidiary
of j2 Global, Inc.[BN]
The Plaintiff is represented by:
Dov Michael Mittelman, Esq.
Stein Saks, PLLC
285 Passaic Street
Hackensack, NJ 07601
Tel: (201) 282-6500
Email: mittelmandov@yahoo.com
HUUUGE INC: Wilson Suit Stayed Pending Arbitration Denial Appeal
----------------------------------------------------------------
In the case, SEAN WILSON, individually and on behalf of all others
similarly situated, Plaintiff, v. HUUUGE, Inc., a Delaware
corporation, Defendant, Case No. 3:18-cv-05276-RBL (W.D. Wash.),
Judge Ronald B. Leighton of the U.S. District Court for the Western
District of Washington, Tacoma, granted the Huuuge's Motion to Stay
Proceedings Pending Appeal of the Court's order Denying the
Defendants' Motion to Compel Arbitration.
The underlying dispute is a class action to recover money lost
playing electronic gambling games available through a mobile app.
The proposed class action alleges that Huuuge's online games
constitute illegal gambling in violation of RCW Section 4.24.070.
Users are given free 'virtual' chips when they first access
Huuuge's apps but must subsequently purchase additional chips to
continue playing. Wilson seeks to establish a class action to
recover money lost by users from playing Huuuge's games. A few
months into the case, Huuuge moved to compel arbitration.
Huuuge's motion argued that users were put on inquiry notice and
agreed to the app's Terms, which contain an arbitration clause,
both when they originally download the app and when actually
playing it. Users may download the app through the Apple App Store
by clicking a blue "GET" button. At the bottom of the app page, a
user can click on an icon that says "more," and after scrolling
through several screens worth of text, a user will encounter the
statement "Read our Terms of Use." This statement is followed by a
URL that a user can copy and paste into their web browser to access
the Terms. Once the game is downloaded, a user can access the
Terms by vising the settings menu via a button in the upper corner
of the screen.
The Court denied Huuuge's Motion to Compel Arbitration because the
inconspicuous nature and location of the Terms within the games did
not meet the standard required for actual or constructive notice,
and so Wilson never agreed to be bound by the Terms. Huuuge
appealed to the Ninth Circuit and filed the Motion to stay
proceedings.
Huuuge argues that a stay should be granted because the appeal
raises serious legal questions such as whether repeatedly playing a
game or using an app through a mobile device can give rise to
constructive notice. It also argues that the balance of equities
favor a stay because of the risk of losing the advantages of
arbitration, speed and economy. Finally, Huuuge argues it would
suffer irreparable harm if it must litigate this potential class
action in the lower court while arguing for arbitration before the
Ninth Circuit.
Wilson responds that a stay should not be granted because the
questions raised by Huuuge are not novel, do not speak to the
merits of the case, and boil down to disagreement over the
application of settled browsewrap precedent. Finally, Wilson
claims he would suffer significantly by delaying his day in court.
Judge Leighton finds that Huuuge raises a somewhat novel question
of whether the current standard for measuring assent to terms via a
mobile app and the repetitive use of that app gives rise to actual
or constructive notice. Even though the Court stands by its prior
decision that the design of the app and the location of the URL in
place by Huuuge fall short of the wellestablished standard from
Nguyen v. Barnes & Noble Inc., like in Kum Tat Ltd. v. Linden Ox
Pasture, LLC, there is no clear precedent by the Ninth Circuit or
the Supreme Court squarely addressing the issue of repetitive use
of the app. Because there is no precedent squarely on point,
Huuuge meets the serious legal question standard, albeit
minimally.
Next, the Judge finds that although he did not find that a valid
browsewrap agreement exists in the case, Huuuge would still suffer
irreparable harm similar to the movant in Rajagopalan and Smith if
the Ninth Circuit disagrees and Huuuge is forced to litigate a
class action unnecessarily. Furthermore, if the court of appeals
does not reverse, there is a chance the parties will settle their
dispute shortly after, making any litigation that took place at the
trial level a waste of resources.
The Judge also finds that the equities tilt in favor of Huuuge
because the risk that arbitration will become moot is significantly
greater compared to the monetary damages Wilson may suffer. He
does not find Wilson's argument regarding the decay of evidence or
the possibility that another organization would not cooperate
persuasive. Furthermore, Wilson does not have much to lose, since
he is simply seeking restitution for the money lost, whereas Huuuge
risks having to defend a class action versus arguing individual
claims in arbitration.
Finally, he finds that although he determined that no arbitration
agreement was formed in the case, it is at least possible that
Huuuge's appeal could still result in a reversal that would put
arbitration back on the table. The public interest factor thus
favors Huuuge.
For these reasons, Judge Leighton granted Huuuge's Motion to Stay
Proceedings Pending Appeal.
A full-text copy of the Court's March 1, 2019 Order is available at
https://is.gd/SIpSDp from Leagle.com.
Sean Wilson, individually and on behalf of all others similarly
situated, Plaintiff, represented by Cecily C. Shiel --
cshiel@tousley.com -- TOUSLEY BRAIN STEPHENS, Janissa Ann Strabuk
-- jstrabuk@tousley.com -- TOUSLEY BRAIN STEPHENS, Benjamin H.
Richman -- brichman@edelson.com -- EDELSON PC, pro hac vice,
Eve-Lynn Rapp -- erapp@edelson.com -- EDELSON PC, pro hac vice, J.
Eli Wade-Scott -- ewadescott@edelson.com -- EDELSON PC, pro hac
vice, Rafey S. Balabanian -- rbalabanian@edelson.com -- EDELSON PC,
pro hac vice & Todd Logan -- tlogan@edelson.com -- EDELSON PC, pro
hac vice.
HUUUGE, Inc., a Delaware corporation, Defendant, represented by
Benjamin J. Robbins, DAVIS WRIGHT TREMAINE, Cyrus E. Ansari --
cyrusansari@dwt.com -- DAVIS WRIGHT TREMAINE, Jaime Drozd Allen --
jaimeallen@dwt.com -- DAVIS WRIGHT TREMAINE & Stuart R. Dunwoody --
stuartdunwoody@dwt.com -- DAVIS WRIGHT TREMAINE.
HYUNDAI: Kirkland & Ellis Attorneys Discuss Settlement Approval
---------------------------------------------------------------
Dan Donovan, Esq. -- daniel.donovan@kirkland.com -- Ragan Naresh,
Esq. --ragan.naresh@kirkland.com -- and Carrie Bodner, Esq. --
carrie.bodner@kirkland.com -- of Kirkland & Ellis, in an article
for Law.com, report that have you ever been left scratching your
head after receiving a check for 17 cents as part of a class action
settlement? "Why did I get this?" you ask. "The recovery doesn't
cover postage!" you exclaim. And you wonder: "What did the lawyers
get?" These concerns aren't new -- in fact, nearly 15 years ago,
Congress passed the Class Action Fairness Act (CAFA) to curb
perceived abuses in the class action settlement process. Part of
that is a requirement that federal courts approve class action
settlements. In the past year, courts have been reviewing proposed
class action settlements with greater rigor, resulting in several
high profile rejections of settlements -- sometimes early in the
settlement approval process. This article sets forth a brief
overview of these developments, and then provides three pointers
for navigating the settlement approval process.
The process of reviewing a class action settlement under CAFA
typically works like this. First, the proposed settlement is
submitted for preliminary approval and certification of a
settlement class. Next, notice of the proposed settlement is
provided to members of the putative class, as well as to relevant
state and federal regulators. Then, putative class members are
given an opportunity to object to, or to opt out of, the
settlement. Finally, the court conducts a final hearing to address
the fairness of and any remaining concerns with the proposed
settlement. This process takes at least four months -- and can even
take years from time-to-time.
Historically, the real test for class action settlements has been
at the final fairness hearing. Courts rarely denied preliminary
approval or denied certification of a settlement class. But in the
past year, there have been several high profile cases that shut
down proposed settlements even at those early stages. And the
settlements that have cleared those early hurdles have faced
increased scrutiny at the final fairness hearing as well.
One high profile case is the Hyundai and Kia fuel economy
litigation in the Ninth Circuit. There, plaintiffs sought to
certify a nationwide class of individuals claiming that
advertisements about certain Hyundai and Kia models overstated
their fuel economy. The district court issued a tentative ruling
denying certification of a nationwide class based on differences in
state law -- i.e., because many different state laws governed class
members' claims, the requirement that common questions
"predominate" over individual ones couldn't be satisfied. After
that tentative denial, the parties reached a nationwide class
settlement and submitted it to the court for approval under CAFA.
The district court then granted certification for settlement
purposes of the same nationwide class that it had previously held
could not be certified, holding that its concerns about the
differences in state law were less acute in the settlement context.
The district court ultimately granted final approval of the
settlement, and objectors appealed. The Ninth Circuit reversed,
holding that the district court had improperly certified the
settlement class. In particular, the Ninth Circuit was concerned
about the predominance requirement, noting that there was nothing
about the settlement context that permitted the district court to
apply a less rigorous analysis of the predominance requirement than
did before the parties had reached a settlement agreement. (As of
this writing, the Ninth Circuit decision is pending review en
banc).
So what do Hyundai/Kia and cases like it mean for class action
litigators who have determined that a class settlement is in the
best interest of their clients? Here are three pointers to help
navigate the increasingly-turbulent waters of CAFA approval.
Know Your Endgame
The Hyundai/Kia litigation makes clear the importance of knowing
your endgame. Defendants often oppose class certification for
various reasons. But class certification can also be the vehicle
for resolving a large number of cases simultaneously -- whether via
summary judgment, trial, or settlement. This is particularly true
in sprawling, complex, multidistrict litigation like in
Hyundai/Kia, where the alternative to class certification is
potentially hundreds (or even thousands) of cases. So before
seeking or opposing class certification, counsel should ask
themselves how a case will play out if certification is granted or
denied. Would plaintiffs really be willing to take hundreds of
cases to trial if certification is denied? Is the defendant willing
to incur the expense of seriatim trials—and to make witnesses
available for all of them? Does the defendant have powerful legal
defenses such that a dispositive ruling on summary judgment is
likely? Is settlement the endgame? Questions like this can help
guide the strategy when faced with a motion for class certification
-- because without a strategy for how the case will play out, an
order granting or denying class certification can be a pyrrhic
victory.
Credibility Is Key
Credibility with courts is always important, but it is especially
crucial in the settlement context. In the litigation context, of
course, courts rely on the crucible of the adversarial process to
help expose flaws in opposing parties' positions. But once the
parties have entered into a settlement agreement, they are
typically aligned in seeking court approval. So the court is left
to its own evaluation of the record -- sometimes with an assist
from objectors -- to assess the fairness of a settlement. It is
critical to ensure that the court is comfortable with the materials
that have been supplied, and that the court consider the parties'
counsel to be transparent brokers who are not overreaching with the
settlement. Even the appearance of overreach can be fatal to a
proposed settlement. The recent rejection of the settlement in the
Yahoo data breach litigation is a good example. There, the court
rejected a proposed settlement -- at the preliminary approval
stage, no less -- for a number of reasons, including seeking
attorney fees for attorneys that the court had not approved to work
on the case and inadequate disclosures to absent class members
about the size of the settlement and the release of claims. The
tenor of the opinion makes clear that the court was unsatisfied
with the information supplied by the parties. Ensuring that
reviewing courts consider the parties and their counsel to be
credible is key to ensuring that settlements make it through the
approval process.
Get a Mediator
The animating principle of CAFA was fairness -- Congress was
concerned with "sweetheart" deals where plaintiffs' lawyers
received large fees, defendants received a broad release, and class
members received relatively little. This same concern animates
judicial review of class settlements today. For example, in a
recent case alleging fraudulent marketing practices of online wine,
a New Jersey federal court rejected a proposed settlement that was
fairly opaque in calculating the recovery to class members, while
awarding $1.7 million to attorneys in fees. The settlement drew
numerous objectors -- including both the U.S. Department of Justice
and from state regulators. The court was not satisfied that it had
the information it needed to evaluate the fairness of the
settlement, and even commented that it was not certain that class
counsel had adequate appreciation of the merits of the case before
negotiating the settlement.
Mediators can help. A mediator can explain to the court how the
settlement was negotiated at arms' length, identify the strengths
and weaknesses of the parties' claims and defenses, and explain why
the settlement is fair to the class and fair to the attorneys. A
mediator affidavit not only can provide information that the
parties themselves are reluctant to put into the record—what
attorney is comfortable identifying the weaknesses in their case in
a public filing? -- but also does so more credibly than an attorney
who stands to benefit from the settlement. For example, in a recent
TCPA case in Illinois, the reviewing court was considering a $17.5
million settlement that included a $5.3 million attorney fee award.
In rejecting the settlement, the court noted that "[c]lass counsel
strongly urge that the settlement represents a reasonable
resolution of the claims when one balances the strengths and
weaknesses of the claims of the class. And their opinion is worthy
of consideration. But the Court cannot simply defer to them,
particularly when they stand to gain millions of dollars from the
proposed settlement." A mediator affidavit, of course, would not be
subject to the same criticism.
The bottom line is that the recent case law highlights that
settling a class action is fundamentally different than settling an
individual one. The courts take seriously their obligation to
scrutinize class action settlements -- and often decisions made
years before a settlement can hinder the ability to settle a case
on a classwide basis.
Dan Donovan and Ragan Naresh are litigation partners in the
Washington, D.C. office of Kirkland & Ellis who frequently lecture
on topics related to class action litigation. Carrie Bodner is a
litigation partner in the firm's New York office whose practice
includes litigating class actions. [GN]
IFIXIT: Traynor Files ADA Class Action in NY
--------------------------------------------
ifixit is facing a class action lawsuit filed pursuant to the
Americans with Disabilities Act. The case is styled as Yaseen
Traynor, on behalf of himself and all others similarly situated,
Plaintiff v. ifixit, Defendant, Case No. 1:19-cv-02115 (S.D. N.Y.,
March 7, 2019).
iFixit is a private company in San Luis Obispo, California. Founded
in 2003 as a result of Kyle Wiens not finding an Apple iBook G3
repair manual while the founders were attending Cal Poly, the
company sells repair parts and publishes free wiki-like online
repair guides for consumer electronics and gadgets on its web site.
The company also performs product teardowns of consumer
devices.[BN]
The Plaintiff is represented by:
Dov Michael Mittelman, Esq.
Stein Saks, PLLC
285 Passaic Street
Hackensack, NJ 07601
Tel: (201) 282-6500
Email: mittelmandov@yahoo.com
IMPERIAL TOBACCO: Appeals Court Upholds Ruling in Tobacco Suit
--------------------------------------------------------------
Morgan Lowrie, writing for The Canadian Press, reports that in what
is being described as a major defeat for the tobacco industry, the
Quebec Court of Appeal on March 1 upheld a landmark judgment
ordering three companies to pay billions of dollars in damages to
Quebec smokers.
Imperial Tobacco, JTI-Macdonald and Rothmans-Benson & Hedges had
appealed a ruling that found the companies chose profits over the
health of their customers.
In June 2015, Quebec Superior Court Justice Brian Riordan ordered
the companies to make payments of more than $15-billion to smokers
who either fell ill or were addicted. At the time, the ruling was
believed to be the biggest class action award in Canadian history.
Lise Blais, the widow of a man who died from smoking-related
illness, said on March 1 she was sorry her husband couldn't be
there to share the moment. Jean-Yves Blais, one of the case's
original plaintiffs, died of lung cancer in September 2012 at the
age of 68.
"During the trial, the tobacco companies said it was the fault of
the smokers, but for me it isn't. They played hide-and-seek with
smokers," she said.
She said her husband began smoking in the 1950s, when people
weren't aware of the risks, and he was unable to quit despite
trying three times. "They're liars," she said of the tobacco
companies.
She described the March 1 decision as a victory, but noted it is
unlikely to be the end of the road for victims, given the
likelihood that the matter will end up before the Supreme Court of
Canada.
Philippe Trudel, a lawyer for smokers who brought the class action,
called the March 1 decision a complete victory. Mr. Trudel
estimated that after the appeal ruling, the total damages owed by
the companies would be more than $17-billion.
"It is excellent news for victims who have been waiting for this
day for a long time. We're very happy with the result, clearly," he
said.
Quebec's highest court, which began hearing the appeal in 2016,
struck down almost all of the tobacco companies' grounds for
appeal. The five-judge panel confirmed that the companies failed in
their duty to inform their customers of the risks of smoking and
failed to demonstrate that consumers were aware of the risk.
The judges concluded that the companies understood that their
marketing strategies would expose consumers to the risk of
addiction or fatal disease. "In so doing, they certainly infringed
in an illicit and intentional fashion the rights to life, to
personal security and to inviolability" of the plaintiffs, the
court ruled.
The 422-page decision concluded that the tobacco companies failed
to demonstrate errors of law in the lower court ruling, "except on
certain minor points."
Rothmans-Benson & Hedges denounced the judgment and said it would
seek leave to appeal to the Supreme Court.
"The decision by the Court of Appeal changes a fundamental
principle of class action law and allows class-wide recovery of
damages without proof from even a single class member," the firm's
managing director, Peter Luongo, said in a statement.
"We believe this unprecedented change in the law warrants review
and reversal by the Supreme Court of Canada."
Eric Gagnon, a spokesman for Imperial Tobacco, said the company was
disappointed by the March 1 decision.
"We've shown that adult consumers have known the risks associated
with tobacco for decades," he said. "We also know that it's the
federal government that gives us the license to allow us to operate
in this market, and we followed the laws and regulations," he told
reporters.
JTI-Macdonald Corp. issued a statement saying it "fundamentally
disagrees" with the decision. JTI-Macdonald and Imperial indicated
they are also considering appealing to the Supreme Court of
Canada.
The Court of Appeal did find the judge erred in several minor
aspects, including how the interest was calculated. Mr. Trudel
called the change a "technicality" that would have little effect on
the overall damages.
"Out of all the billions, I don't think they'll call it a victory,"
he said. "But we call it a total victory on all fronts."
The March 1 decision is the latest step in a case that has been
before the courts for more than 20 years. The companies were
targeted in two lawsuits heard at the same time, which were filed
in 1998 and only argued in court in 2012. They covered roughly
100,000 smokers who took up the habit between 1950 and 1998.
One lawsuit was started by people who were addicted to cigarettes
and couldn't quit, and the second was brought by those who had
suffered from cancer or emphysema.
Some 76 witnesses testified at the Superior Court trial and nearly
43,000 documents were entered into evidence, including internal
tobacco company documents that showed smokers didn't know or
understand the risks associated with cigarettes. [GN]
IMPERIAL TOBACCO: Intends to Appeal Smoking Class Action Ruling
---------------------------------------------------------------
Proactive Investors reports that a spokesperson for BAT said: "We
are still of the view that this decision is wrong -- ignoring the
reality that both adult consumers and government have known about
the risk associated with smoking for decades."
British American Tobacco plc (LON:BATS) has said it is "extremely
disappointed" that the Quebec Court of Appeal did not overturn the
smoking class action lawsuit judgment made against its Canadian
subsidiary, Imperial Tobacco Canada Ltd which intends an appeal to
the Supreme Court of Canada.
In an announcement on Friday, 1 March 2019, the Court of Appeal
upheld the Superior Court's decision of May 2015 in two Quebec
Class Action lawsuits against Imperial Tobacco Canada and two other
Canadian tobacco companies, which has been going on for almost 20
years.
In a statement on March 4, a spokesperson for BAT said: "We are
still of the view that this decision is wrong -- ignoring the
reality that both adult consumers and government have known about
the risk associated with smoking for decades. As a result, we
believe it should be overturned."
The spokesperson added: "Imperial Tobacco Canada Ltd. needs to
review the court's decision in more detail and will decide on next
steps over the coming days and weeks. Given the significance of the
judgment, they have said that they fully intend to appeal the
decision to the Supreme Court of Canada."
BAT noted that, following the release of the appeal judgment, the
plaintiffs requested the immediate release of the funds on deposit,
which was refused. They then filed a formal motion to release the
funds, and Imperial Tobacco Canada Ltd. filed a motion to prevent
the release of the funds in question.
The FTSE 100-listed firm stressed that it was not a party to the
proceeding and is not a party to the judgment, only its Canadian
subsidiary, Imperial Tobacco Canada. [GN]
INMAN'S AUTO: Johnson Suit Moved to Southern District of Texas
--------------------------------------------------------------
The case, Daniel Johnson, on behalf of himself and on behalf of all
others similarly situated, vs. Inman's Auto Rescue of Colorado,
LLC, the Defendant, Case No. 1:17-cv-01844 (Filed July 31, 2017),
was transferred from the U.S. District Court for the District of
Colorado from the U.S. District Court for the Southern District of
Texas (Houston) on March 13, 2019. The Southern District of Texas
Court Clerk assigned Case No. 4:19-cv-00909 to the proceeding. The
case is assigned to the Hon. Judge Alfred H. Bennett.
The case is a collective action brought pursuant to 29 U.S.C. Sec.
216(b) by Daniel Johnson, on behalf of himself and all others
similarly situated, arising from Defendant's willful violation of
the federal Fair Labor Standards Act and the Colorado Minimum Wage
Act, for failure to pay proper minimum wages and overtime wages for
all hours of work performed by its employees.[BN]
Attorneys for the Plaintiff:
David M Blanchard, Esq.
BLANCHARD WALKER PLLC
221 N Main St., Suite 300
Ann Arbor, MI 48104
Telephone: (734) 929-4313
E-mail: blanchard@bwlawonline.com
- and -
Eric Lechtzin, Esq.
Sarah Rebecca Schalman-Bergen, Esq.
Shanon Jude Carson, Esq.
BERGER MONTAGUE PC
1818 Market Street, Suite 3600
Philadelphia, PA 19103
Telephone: (215) 875-3038
E-mail: elechtzin@bm.net
sschalman-bergen@bm.net
scarson@bm.net
- and -
Patrick H. Peluso, Esq.
Steven Lezell Woodrow, Esq.
WOODROW & PELUSO, LLC
3900 East Mexico Avenue, Suite 300
Denver, CO 80210
Telephone: (720) 213-0676
Facsimile: (303) 927-0898
Attorneys for Inman's Auto Rescue of Colorado, LLC:
Annette A Idalski, Esq.
Kelli N Church, Esq.
Mary Claire Smith, Esq.
Peter Nathaniel Hall, Esq.
CHAMBERLAIN HRDLICKA ET AL
191 Peachtree St NE, 46th Fl
Atlanta, GA 30303-1747
Telephone: (404) 659-1410
E-mail: annette.idalski@chamberlainlaw.com
- and -
Brent Thomas Johnson, Esq.
Colin Andrew Walker, Esq.
FAIRFIELD & WOODS, P.C.
1801 California Street, Suite 2600
Denver, CO 80202-2645
Telephone: (303) 830-2400
Facsimile: (303) 830-1033
INSPIRE BRANDS: Boitnott Alleges Disabilities Act Violation
-----------------------------------------------------------
Inspire Brands is facing a class action lawsuit filed pursuant to
the Americans with Disabilities Act. The case is styled as Jerald
Boitnott, individually and on behalf of all others similarly
situated, Plaintiff v. Inspire Brands, Inc., agent of Arby's and
Arby's Restaurant Group, Inc., Defendants, Case No. 0:19-cv-00701
(D. Minn., March 14, 2019).
Inspire Brands, Inc., formerly Arby's Restaurant Group, Inc., is
the owner of the Arby's restaurant chain, Buffalo Wild Wings, Rusty
Taco and Sonic Drive-In. The company is based in Atlanta with a
support center in Minneapolis. Inspire Brands is owned by Roark
Capital Group.[BN]
The Plaintiff is represented by:
Chad Throndset, Esq.
Throndset Michenfelder, LLC
One Central Avenue West, Suite 203
St. Michael, MN 55376
Tel: (763) 515-6110
Email: chad@throndsetlaw.com
- and -
Patrick W Michenfelder, Esq.
Throndset Michenfelder Law Office, LLC
One Central Avenue West, Ste 203
St. Michael, MN 55376
Tel: (763) 515-6110
Fax: (763) 226-2515
Email: pat@throndsetlaw.com
JACKSON, TN: Police Dept Faces Class Action Over Arrest Warrants
----------------------------------------------------------------
Kody Leibowitz, writing for FOX13, reports that a West Tennessee
police department and city court clerk's office are accused of
improperly executing arrest warrants.
The City of Jackson is facing a federal class-action lawsuit.
Two residents of Jackson -- Steven Cox and Kelly Freeman -- filed
the lawsuit against the City of Jackson, Jackson Police Chief
Julien Wiser and Jackson City Court Clerk Daryl Hubbard.
The lawsuit alleges the clerk did not swear officers in under oath
before signing arrest warrants.
'A constitutional issue'
C. Mark Donahoe is a Jackson-based attorney representing Cox,
Freeman and other potential clients on the lawsuit.
He is one of four attorneys listed on the lawsuit.
His clients filed the lawsuit in United States District Court for
the Western District of Tennessee, a federal court, on Feb. 11.
"It's primarily based in a constitutional issue, which resolves
around the actual arrest," said Mr. Donahoe. "What we're saying is
they were arrested, held in jail, had to make bond -- illegally --
because the warrant was not done properly."
FOX13 sat down with Mr. Donahoe in his office a week after the
lawsuit was filed.
FOX13: If one piece of [the arresting process] is missing, then
what happens?
Donahoe: Then you have a constitutional violation and at that point
it becomes an illegal arrest and an illegal detention. And at that
point, a civil rights violation.
FOX13: Their rights were violated?
Donahoe: Correct.
'That's why it went on for so long'
One of the plaintiffs on the lawsuit is Freeman.
In January 2017, Jackson police pulled her over near Old Hickory
and the Bypass, according to a complaint.
Freeman was charged with driving under the influence, according to
multiple documents provided to FOX13 Investigates. [GN]
JB HUNT: Settlement in California-Driver Suit Wins Initial Okay
---------------------------------------------------------------
J.B. Hunt Transport, Inc. said in its Form 10-K report filed with
the U.S. Securities and Exchange Commission on February 22, 2019,
for the fiscal year ended December 31, 2018, that the court has
granted preliminary approval of the settlement in the lawsuit by
current and former California-based drivers.
The company is a defendant in certain alleged class-action lawsuits
in which the plaintiffs are current and former California-based
drivers who allege claims for unpaid wages, failure to provide meal
and rest periods, and other items.
In the lead class-action, the company reached an agreement and
recorded a reserve in September 2018 to resolve all pending claims
for a class settlement payment of $15 million, subject to Court
approval.
The Court granted preliminary settlement approval in November 2018.
Notice of the settlement has been mailed to all settlement class
members and the deadline for objections to the settlement passed
without any objections filed.
The company expects the Court's order granting final approval to be
issued in April 2019. The overlapping claims in the other alleged
class-action lawsuits remain stayed pending final approval of the
settlement in the lead class-action case.
J.B. Hunt Transport, Inc. provides truckload freight and intermodal
transportation, logistics management, dry van, and e-business
services. The company was founded in 1969 and is based in Lowell,
Arkansas. The company has operations in the United States, Canada,
and Mexico. J.B. Hunt Transport, Inc. operates as a subsidiary of
J.B. Hunt Transport Services, Inc.
JEHOVAH'S WITNESSES: Judge Authorizes Sex Abuse Class Action
------------------------------------------------------------
Jesse Feith, writing for Montreal Gazette, reports that citing a
hierarchy that "encourages a culture of silence," a Quebec Superior
Court judge has authorized a class-action lawsuit for current or
former Jehovah's Witnesses in Quebec who were sexually abused by
other members as minors.
Authorized by the court, the class action argues the church's
internal reporting policies conceal abuse and have silenced
hundreds of sexual assault complaints through the years. It seeks
at least $250,000 in damages for each alleged victim.
The lawsuit was filed on behalf of Lisa Blais, a Quebec woman born
into a Jehovah's Witness family. She alleges she was repeatedly
sexually abused and assaulted by her brother, 13 years older,
beginning when she was only 10 months old.
It's estimated there are roughly 27,000 Jehovah's Witnesses in
Quebec.
"Given that the lawsuit is based on sexual assaults, a class action
is the appropriate measure," Quebec Superior Court Judge Chantal
Corriveau wrote in her 27-page decision. "It would be difficult and
impracticable for members to individually come out of the shadows
and try to make their claims known."
The lawsuit targets the Watch Tower Bible and Tract Society of
Canada, the parent company of Jehovah's Witnesses in the country,
and another society based in Pennsylvania that's responsible for
the church's communications and publications.
At the heart of the class action is whether the church failed to
protect its members when they tried to denounce sexual abuse.
According to the lawsuit, Ms. Blais, now in her 40s, first spoke
out about the alleged abuse when she was 16 years old. She sought
help from her parents, another Jehovah's Witness and an elder --
members who act as spiritual leaders in different congregations --
but says she was discouraged from reporting the abuse in order to
protect the community.
Ms. Blais left her family at 17 and was officially disfellowshipped
at 24.
Lawyers arguing against the class action contended Ms. Blais's
allegations were too vague, that her wounds stem from the incest
and her parents failing to protect her from it, and that it isn't
the court's place to interfere with religious practices.
But Judge Corriveau found otherwise, ruling Blais's allegations are
"based on a set of substantiated facts."
"The organization of Jehovah's Witnesses is very hierarchical, led
by men, and encourages a culture of silence," Judge Corriveau
wrote. "The internal treatment of complaints of sexual abuse
illustrates that.
"It is easy for the Tribunal to conclude that, as a result, victims
who have not been encouraged or supported to denounce these
assaults also do not have the courage to confront their aggressor
and the organization in court by instituting an individual
lawsuit."
Reached for comment on the ruling, the Watch Tower Bible and Tract
Society of Canada said it's considering its options for appeal.
"The class action was authorized solely on the basis of unproven
allegations," a spokesperson wrote in a statement.
"If this matter proceeds to trial the facts will clearly show
Jehovah's Witnesses report allegations of abuse to the authorities,
in line with the Youth Protection Act," he added. "The well-being
of children is of utmost importance to Jehovah's Witnesses."
Ms. Blais's lawyer, Sarah Woods, said her client was pleased with
the ruling.
Lead plaintiffs in class-action suits involving child abuse often
remain anonymous through the proceedings, but Ms. Blais chose not
to.
According to the class-action application, filed two years ago,
Blais wanted to lead the suit "in order to assist other victims"
Ms. and "to provide access to justice" to other potential class
members.
"There is a sense that if victims are willing to be the face of
such a recourse," Woods said on March 4, "that hopefully it will
encourage other people to come forward and speak out." [GN]
JP MORGAN: Ex-Metal Trader's Guilty Pleas Prompt Class Action
-------------------------------------------------------------
Parker City News reports that traders from across the U.S. are
banding together to accuse J. P. Morgan Chase of manipulating
precious metals markets for years.
At least six lawsuits, all making similar allegations against the
nation's largest bank, have been filed in New York federal court in
the past month, since federal prosecutors in Connecticut with a
former J. P. Morgan Chase metals trader.
The cases could potentially include thousands of people who traded
in the precious metals market. The White Plains, N.Y., law firm
Lowey Dannenberg is asking the court to combine the cases and name
it as the lead.
The law firm's commodities group is led by Vincent Briganti, the
attorney who filed the first lawsuit on behalf of Dominick Cognata,
a New York resident who alleges he suffered losses due to J. P.
Morgan's trading conduct in the silver and gold futures and options
markets.
A combined case, seeking class action status, would include anyone
who purchased or sold futures contracts or an option on NYMEX
platinum or palladium or COMEX silver or gold between at least Jan.
1, 2009, and Dec. 31, 2015. The lawyers believe that "at least
hundreds, if not thousands" of traders would be eligible to join
the case.
Named as defendants in all of the lawsuits are John Edmonds, a
36-year old former metals trader at J. P. Morgan, a group of
yet-to-be-identified precious metals traders and the bank.
Mr. Edmonds, a New York resident, pleaded guilty in October to one
count of conspiracy to defraud the market and manipulate prices of
precious metals futures contracts and one count of commodities
fraud. In the criminal plea, Mr. Edmonds admitted that he and other
"unnamed co-conspirators" at J. P. Morgan, fraudulently manipulated
precious metals markets from 2009 to 2015, the same time frame
covered in the class action suits.
Mr. Briganti filed the initial class action on Nov. 7, just one day
after the Justice Department unsealed Mr. Edmonds' plea in the U.S.
District Court of Connecticut.
Mr. Edmonds admitted in his guilty plea that he deployed the
illegal trading scheme hundreds of times with the direct knowledge
and consent of his immediate supervisors. Plaintiffs say they have
suffered economic injury, including monetary losses, as a direct
result of actions by Edmonds and the other unnamed J. P. Morgan
metals traders in the futures and options contracts.
One of the suits alleges that "the number of unlawful trades that
JP Morgan traders executed in precious metals futures markets is at
least in the thousands."
J. P. Morgan declined to comment. Lowey Dannenberg did not respond
to a request for comment by CNBC.
The Justice Department's criminal investigation is still ongoing
and recently caused a separate related civil case to be put on hold
for at least six months while the government continues its
investigation. That civil lawsuit, which also accuses J. P. Morgan
of rigging the precious metals market, was filed in 2015 by hedge
fund manager Daniel Shak and two commodity traders.
After reviewing the details of the plea agreement, David Kovel, the
attorney for Mr. Shak's suit, sought to re-interview Edmonds, along
with two other current and former senior traders at the bank.
However, the government argued that reopening questioning would be
detrimental to the ongoing criminal investigation. The federal
judge overseeing the proceedings ordered a six-month stay in the
civil case.
Mr. Kovel declined to comment.
Mr. Edmonds was originally scheduled to be sentenced in Hartford,
Conn., on Wednesday, Dec. 19, but a court filing on Nov. 27 shows
the sentencing has been postponed until June. A spokesman for the
U.S. Attorney for Connecticut could not elaborate on why the
sentencing was postponed since the court filing is under seal.
[GN]
KAWASAKI: Settles Class Action Over Lawnmower Engines
-----------------------------------------------------
Alexandra Toutant, writing for MTL Blog, reports that a
class-action lawsuit settled for $7.5 million a few months ago. The
lawsuit claims that lawnmower manufacturers did not accurately
detail the power of the engines. This lawsuit involves many
recognisable brands, such as Kawasaki, John Deere, Honda, and
Toro.
If you purchased one of the lawnmower models described in the claim
between 1994 and 2012, you could be eligible to claim between $15
and $55.
TL;DR If you bought one of these models of lawnmowers, you are
eligible to file a claim and collect between $15 and $55.
The lawsuit claims that manufacturers overstated the power of their
engines between 1992 and 2014. Specifically, the class action
"claim[s] that the companies who manufactured the engines and the
lawn mowers containing them mislabelled the products to show a
higher horsepower rating than what was actually contained in the
lawn mower."
Manufacturers involved include Kawasaki, John Deere, Honda, and
Toro. It is important to note that this settlement is not an
admission of guilt on the part of the manufacturers.
You are eligible to file a claim if:
-- you purchased a gas-powered walk-behind or riding lawn mower
designed, manufactured or labelled by one of the companies
mentioned in the lawsuit and
-- you made this purchase in Canada between 1994 and 2012
You will be compensated betwen $15 and $55, depending on whether or
not you have proof of purchase. You do not need to have proof of
purchase to file this claim.
The form can be found at:
https://kccsecure.com/lawnmowersettlement/Claimant
If you want to file a claim, you have between now and May 22 to do
so. Once it is filed, the claim will be reviewed, which can take a
significant amount of time. [GN]
KOHL'S DEPARTMENT: Court Enters Final Judgment in Russell Suit
--------------------------------------------------------------
Judge R. Gary Klausner of the U.S. District Court for the Central
District of California has issued final judgment in the case,
STEVEN RUSSELL, et al. Plaintiff, v. KOHL'S DEPARTMENT STORES,
INC., et al., Defendants, Case No. 5:15-cv-01143-RSK-SP (C.D.
Cal.).
On June 11, 2015, Class Representatives Russell and Donna Caffey,
individually and on behalf of all others similarly situated, filed
the class action against Kohl's before the Court. On Aug. 14,
2015, they filed a First Amended Complaint. On Dec. 4, 2015, the
Court granted the Plaintiffs' Motion for Class Certification,
certifying a class under Rule 23(b)(2) for injunctive relief only.
The parties entered into a Class Action Settlement Agreement fully
executed on March 13, 2016, and an Amended Class Action Settlement
Agreement fully executed on May 3, 2016. On March 14, 2016, the
Plaintiffs submitted a Motion for Preliminary Approval of Class
Action Settlement and Conditional Certification. On April 11,
2016, the Court granted the Plaintiffs' Motion for Preliminary
Approval, and on April 22, 2016, preliminarily approved the
proposed Amended Class Action Settlement Agreement.
Following notice to the class regarding the Court's preliminary
approval of the Amended Class Action Settlement Agreement, the
Plaintiffs on Aug. 15, 2016 filed a Motion for Final Approval of
Class Action Settlement, and Motion for Attorneys' Fees, Litigation
Costs and Class Representatives' Enhancement Payments. On Sept.
12, 2016, the Court granted the class settlement, took the Motion
for Attorneys' Fees under submission, and provided the Objectors
and the Plaintiffs additional time to brief issues relating to the
Motion for Attorneys' Fees. The Court entered Final Judgment on
Oct. 13, 2016.
Four objectors appealed the Court's Judgment. On Nov. 5, 2018, the
Court of Appeals issued an unpublished Memorandum and Order, which
affirmed the Court's Final Approval of the Class Action Settlement
but vacated its award of attorneys' fees but otherwise upheld all
aspects of the Settlement, including the award of costs and
enhancement payments. On remand, on Feb. 22, 2019, the Court
entered an Order Granting Plaintiffs' Renewed Motion for Attorneys'
Fees, Litigation Costs, and Class Representative Enhancement
Payments.
Judge Klausner approved the terms of the Amended Class Action
Settlement Agreement as fair, reasonable and adequate. He
certified a Settlement Class of all persons who, while in the State
of California, and between June 11, 2011, and April 11, 2016,
purchased from Kohl's one or more items at a discount of at least
30% off of the stated "original" or "regular" price, and who have
not received a refund or credit for their purchase(s) is certified
for settlement purposes.
Notice of the settlement was provided to the Settlement Class in a
reasonable manner, and was the best notice practicable under the
circumstances, including through individual notice to all members
who could be reasonably identified through reasonable effort.
Kohl's, with the assistance of Claims Administrator KCC and
pursuant to the Class Action Fairness Act of 2005 ("CAFA"), served
timely notices of the settlement to the Attorney General of the
United States, and the Attorneys General of all 50 states and the
District of Columbia, the Attorneys General for the five recognized
voting U.S. Territories, as well as parties of interest to the
action.
The Judge dismissed with prejudice the action. As a result of the
Court's approval of the Amended Class Action Settlement Agreement
and dismissal of the action with prejudice, the named Plaintiffs,
and all Settlement Class members (other than those who timely filed
valid Opt-Out Requests) are permanently barred from asserting, or
attempting to assert, any of the Settlement Class Member Released
Claims against Kohl's, which are defined within the Amended Class
Action Settlement Agreement in Section 10.1.
All parties will bear their own fees (including attorneys' fees),
expenses, and costs, except that the Class Counsel's application
for an award of Attorneys' Fees and Costs is granted, with the
Class Counsel to be paid $1,462,500 in fees plus reimbursement of
costs in the total sum of $62,425, which costs are to be applied
towards additional administrative costs and paid to KCC.
Pursuant to the terms of the Amended Class Action Settlement
Agreement, Claims Administrator KCC will be paid $1 million from
the Monetary Component, in addition to the $62,425 in costs
referenced above that otherwise had been designate reimburse the
Class Counsel for costs.
Pursuant to the terms of the Amended Class Action Settlement
Agreement and the Order approving settlement, each named Plaintiff
will receive $5,000 as an Enhancement Payment, all of which to be
paid from the Monetary Component of the Amended Class Action
Settlement Agreement.
A full-text copy of the Court's March 5, 2019 Final Judgment is
available at https://is.gd/sRdWXp from Leagle.com.
Steven Russell, individually and on behalf of all others similarly
situated, Steven Russell, an individual & Donna Caffey, Plaintiffs,
represented by Douglas Caiafa, Douglas Caiafa APLC & Christopher J.
Morosoff -- cjmorosoff@morosofflaw.com -- Law Offices of
Christopher J. Morosoff.
Card Anne, Movant, represented by Matthew Kurilich, Jr. , Matthew
Kurilich Jr Law Offices.
Kohl's Department Stores, Inc., a Delaware Corporation, Defendant,
represented by James F. Speyer -- james.speyer@arnoldporter.com --
Arnold and Porter Kaye Scholer LLP, Ryan W. Light --
ryan.light@arnoldporter.com -- Arnold and Porter Kaye Scholer LLP &
Eskandar Alex Beroukhim -- alex.beroukhim@arnoldporter.com --
Arnold & Porter Kaye Scholer LLP.
Sarah McDonald, Objector, represented by C. Benjamin Nutley,
Kendrick and Nutley & John William Davis, John W Davis Law
Offices.
Barbara S. Cochran, Objector, pro se.
Bobbi Cecio, Objector, pro se.
Bobbi Cecio, Objector, represented by David C. Hawkes --
dhawkes@bkflaw.com -- Blanchard Krasner and French.
Patrick S. Sweeney, Objector, pro se.
Anne Card, Objector, represented by Caroline V. Tucker --
ctucker@tuckerpollard.com -- Tucker and Pollard.
LASER SPINE: Employees File Class Action Over Sudden Mass Layoff
----------------------------------------------------------------
Briona Arradondo, writing for FOX 13 News, reports that at least
two Bay Area-based workers have filed class-action lawsuits on
March 4 against Laser Spine Institute after they lost their jobs in
a sudden mass layoff and closing of the business.
The Tampa location was among four locations nationwide to abruptly
shut down on March 1, giving no notice to about 500 employees.
The lawsuits filed in federal court against Laser Spine Institute
allege workers did not get enough notice before the mass layoff.
Tampa labor attorney Matt Fenton said the Worker Adjustment and
Retraining Notification Act, or WARN Act, requires companies to
provide a 60-day notice.
"Our firm filed a lawsuit on behalf of a terminated Laser Spine
employee under the WARN act," said Mr. Fenton, a partner at Wenzel
Fenton Cabassa Law. "That's the very purpose of the act is to
prevent things like this from occurring and let employees take some
anticipatory action to protect themselves in these circumstances."
One former employee received a WARN Act notice and shared it with
FOX 13. It was dated March 4, even though all Laser Spine Institute
facilities closed Friday, March 1. The letter said issuing notice
at an earlier date would have undermined financing efforts
underway.
The company's CEO said in a statement that Laser Spine Institute
was not able to get "necessary financing to undertake a Chapter 11
process" and operate via bankruptcy.
"It surprises me that a company of sufficient sophistication and
experience . . . would not jump through the basic hoops that the
law requires to give notice to their employees," said Mr. Fenton.
The lawsuit asks for 60 days' worth of pay for laid-off employees,
which is what they would have received if they had a 60-day
notice.
FOX 13 saw some people walking out of the building on March 4, but
they would not answer questions about what employees can do if they
still have belongings in the building.
As for the building itself, the developer that owns it, Highwoods
Properties sent FOX 13 the following statement:
"As a result of Laser Spine Institute's sudden closure, the Company
expects to write-off accounts and notes receivable, lease
incentives and straight-line rents receivable associated with the
building, which aggregated $11.8 million at December 31, 2018 and
approximately $12.2 million at March 1, 2019, including non-cash
items of approximately $6.8 million as of both dates. The March 1,
2019 balance will be written-off in the first quarter of 2019."
[GN]
LLR INC: Alaska Court Dismisses K. Van's Suit With Prejudice
------------------------------------------------------------
In the case, KATIE VAN, individually and on behalf of all others
similarly situated, Plaintiff, v. LLR, INC., d/b/a LuLaRoe, and
LULAROE, LLC, Defendants, Case No. 3:18-cv-0197-HRH (D. Alaska),
Judge H. Russel Holland of the U.S. District Court for the District
of Alaska granted the Defendants' motion to dismiss the Plaintiff's
first amended class action complaint.
The Defendants sell clothing through fashion retailers located in
all fifty states to consumers across the United States. Plaintiff
Van alleges that she made purchases from LuLaRoe retailers in other
states and had those purchases shipped to her home in Anchorage,
Alaska. She alleges that she was improperly charged sales tax on
purchases she made from LuLaRoe's remote consultants. Alaska does
not have a state-wide sales tax, although some local jurisdictions
impose a sales and/or use tax. The Plaintiff alleges that the
Defendants improperly charged sales tax on at least 72,503 sales
transactions shipped into non-taxing jurisdictions in Alaska from
April 2016 through June 1, 2017.
The Plaintiff alleges that Defendants began improperly charging
sales tax in 2016 after it was discovered that LuLaRoe was paying
sales tax on all sales regardless of whether or not the end
consumer was charged or paid sales tax on a transaction. She
alleges that this happened because of the way that the Defendants'
point-of-sale system, which was called "Audrey," was programmed.
The Plaintiff alleges that in response to this discovery, the
Defendants, in April 2016, implemented a new sales tax policy,
which was that Audrey would be collecting tax from end consumers
based upon the retailer location. The Plaintiff alleges that the
Defendants altered the Audrey POS to prevent retailers from turning
off the sales tax features when making sales delivered into other
states with no sales tax. The Defendants launched a new POS system
in January 2017 called Bless and began transitioning retailers from
Audrey to Bless. This transition was not completed until May and
Audrey was permanently disabled on May 31, 2017.
In February 2017, a law suit (the Webster case) was filed in the
Western District of Pennsylvania, alleging claims on behalf of
class members in eleven states that have jurisdictions where there
is no sales tax on the clothing LuLaRoe sells, but where those
customers were charged the fraudulent tax. Although the Plaintiff
was not a named plaintiff in the Webster case, there was an Alaskan
named plaintiff. The court mentioned defendants' refund program in
a footnote, referring to it as a comprehensive refund program. On
Sept. 19, 2018, the Webster case was dismissed for lack of
jurisdiction.
The Plaintiff alleges that after the Webster case was filed, the
Defendants engaged in a confusing, ad hoc, refund scheme in a
failed effort to escape responsibility for its bad acts. In
answers to interrogatories in the Webster case, the Defendants
admitted that they had only made 38 refunds prior to the filing of
the Webster case on Feb. 17, 2017 and that they had made no refunds
to any Alaska residents prior to Feb. 17, 2017. Ultimately, the
Defendants refunded $255,483.35 to Alaska consumers who were
improperly charged sales tax.
The Plaintiff commenced the action on Sept. 5, 2018. The Plaintiff
asserts two claims on behalf of herself and others similarly
situated. In Count I, she asserts an Alaska Unfair Trade Practices
and Consumer Protection Act ("UTPCPA") claim. The Plaintiff
alleges that the Defendants violated the UTPCPA by knowingly
charging and collecting an unlawful sales tax on its clothing sales
to the Plaintiff and the class members; by failing to disclose that
they were not authorized to collect such taxes; and by actively
misrepresenting to their customers, directly and through their
retailers, that their 2016 Tax Policy and their collection of sales
tax from the class members was proper and lawful. The Plaintiff
also alleges that the Defendants intentionally violated the UTPCPA
by programming their online point-of-sale payment system to collect
sales tax on clothing when such collection was unlawful and not
authorized by the taxing authority of the buyer. In Count II, the
Plaintiff asserts a conversion claim.
In her first amended complaint, the Plaintiff sought the following
relief: 1) actual, statutory, and punitive damages, 2) interest on
her damages, 3) a declaration that the Defendants' conduct was
unlawful, 4) an injunction prohibiting the Defendants from
improperly collecting sales tax in the future, and 5) attorney's
fees and costs. In her opposition to the instant motion, she
states that she is seeking the following relief: an accounting;
interest; statutory damages; and punitive damages.
The Defendants now move to dismiss the Plaintiff's first amended
class action complaint. Should the Court not dismiss the
Plaintiff's first amended class action complaint in its entirety,
then the Defendants move to strike the class allegations.
Judge Holland is not persuaded by the Plaintiff's argument.
Rather, he concludes that in the case, the de minimus amount
alleged lost in interest is inadequate to establish Article III
standing. While a loss of even a small amount of money is
ordinarily an injury, there is, of course, a de minimis level of
imposition with which the Constitution is not concerned. Some
injuries are too trifling of an injury to support constitutional
standing. The Plaintiff's alleged loss of interest in the case is
such an injury. It is too little to support Article III standing
as to either of the Plaintiff's UTPCPA or conversion claims.
Because the Plaintiff lacks standing, the Judge need not consider
the Defendants' arguments that the Plaintiff has failed to state
plausible claims or the Defendants' alternative motion to strike
the Plaintiff's class allegations.
Based on the foregoing, Judge Holland granted the Defendants'
motion to dismiss. He dismissed the Plaintiff's first amended
class action complaint with prejudice because any amendment would
be futile.
A full-text copy of the Court's March 1, 2019 Order is available at
https://is.gd/5FbVjB from Leagle.com.
Katie Van, individually and on behalf of all others similarly
situated, Plaintiff, represented by James J. Davis, Jr. --
jdavis@njp-law.com -- Northern Justice Project, Goriune Dudukgian
-- gdudukgian@njp-law.com -- Northern Justice Project, Kelly K.
Iverson -- contact@carlsonlynch.com -- Carlson Lynch Sweet Kilpela
& Carpenter, LLP, pro hac vice, Kevin W. Tucker --
ktucker@carlsonlynch.com -- Carlson Lynch Sweet Kilpela &
Carpenter, LLP, pro hac vice & R. Bruce Carlson --
bcarlson@carlsonlynch.com -- Carlson Lynch Sweet Kilpela &
Carpenter, LLP, pro hac vice.
LLR, Inc., doing business as LuLaRoe & LuLaRoe, LLC, Defendants,
represented by Brewster H. Jamieson -- jamiesonb@lanepowell.com --
Lane Powell LLC, Michael Bruce Baylous -- baylousm@lanepowell.com
-- Lane Powell LLC, Randolph T. Moore -- rmoore@swlaw.com -- Snell
& Wilmer, L.L.P., pro hac vice & Steven T. Graham --
sgraham@swlaw.com -- Snell & Wilmer, L.L.P., pro hac vice.
LUCAS COUNTY CORRECTIONAL: Court Denies Bid to Amend in Foster Suit
-------------------------------------------------------------------
In the case, Christopher Foster, Plaintiff, v. Lucas County
Correctional Center, Defendant, Case No. 3:16-cv-02109 (N.D. Ohio),
Judge Jeffrey J. Helmick of the U.S. District Court for the
Northern District of Ohio, Western Division, denied the Plaintiff's
Motion to Alter or Amend.
In the instant Motion, Foster restates the allegations he pled in
his Complaint and contends his legal claims had merit. He states
that the case is a class action, and requests as relief that Judge
Helmick orders the Marshals to serve it as a class action on the
Defendants.
The Judge holds that the Plaintiff is merely restating his case and
arguing it had merit. He does not cite to any clear error of law,
newly discovered evidence, or intervening change in the controlling
law. Nothing in the Motion suggests alteration or amendment of the
judgment is needed to prevent a manifest injustice. The Plaintiff
has not demonstrated he is entitled to relief under Rule 59(e).
Furthermore, the case is not a class action. To be a class action,
it must be certified it as one under Rule 23 prior to judgment.
The Judge has not certified it as a class action.
Accordingly, he denied the Plaintiff's Motion to Alter or Amend.
He certified pursuant to 28 U.S.C. § 1915(a)(3), that an appeal
from the decision could not be taken in good faith. The case is
closed.
A full-text copy of the Court's March 5, 2019 Memorandum Opinion
and Order is available at https://is.gd/ODORgM from Leagle.com.
Christopher Foster, Plaintiff, pro se.
LYFT INC: May Face Adverse Consequences for Reclassifying Drivers
-----------------------------------------------------------------
WorkCompCentral reports that ride-hailing firm Lyft Inc. said in a
Security and Exchange Commission filing submitted in anticipation
of going public that it faces significant adverse consequences if
it has to classify drivers as employees. A Form S-1 registration
statement filed on March 1 as Lyft prepares for its debut on the
Nasdaq stock exchange under the symbol LYFT acknowledged that
courts and regulators might reject its argument that drivers are
contractors. The company said it is involved in six putative class
action suits filed by drivers who allege they were misclassified.
[GN]
MADISON REALTY: Olsen Alleges Violation under Disabilities Act
--------------------------------------------------------------
Madison Realty Capital, L.P. is facing a class action lawsuit filed
pursuant to the Americans with Disabilities Act. The case is styled
Thomas J. Olsen, individually and on behalf of all other persons
similarly situated, Plaintiff v. Madison Realty Capital, L.P. doing
business as: The Buchanan, Defendant, Case No. 1:19-cv-02220 (S.D.
N.Y., March 11, 2019).
Madison Realty Capital LP is a real estate investment firm
specializing in flexible debt and equity financing solutions for
middle-market transactions. It specializes in commercial mortgage
loans, mezzanine debt, senior bridge loans, distressed loans,
mezzanine loans, and preferred equity in real property.[BN]
The Plaintiff is represented by:
Christopher Howard Lowe, Esq.
Lipsky Lowe LLP
630 Third Avenue
New York, NY 10017-6705
Tel: (212) 392-4772
Fax: (212) 444-1030
Email: chris@lipskylowe.com
MATTEL INC: Appeal in Calif. Consolidated Suit Pending
------------------------------------------------------
Mattel, Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on February 22, 2019, for the
fiscal year ended December 31, 2018, that the plaintiff's notice of
appeal from the judgment entered by the U.S. District Court for the
Central District of California in a consolidated class action
lawsuit is underway.
A purported class action lawsuit is pending in the United States
District Court for the Central District of California,
(consolidating Waterford Township Police & Fire Retirement System
v. Mattel, Inc., et al., filed June 27, 2017; and Lathe v. Mattel,
Inc., et al., filed July 6, 2017) against Mattel, Christopher A.
Sinclair, Richard Dickson, Kevin M. Farr, and Joseph B. Johnson
alleging federal securities laws violations in connection with
statements allegedly made by the defendants during the period
October 20, 2016 through April 20, 2017.
In general, the lawsuit asserts allegations that the defendants
artificially inflated Mattel's common stock price by knowingly
making materially false and misleading statements and omissions to
the investing public about retail customer inventory, the alignment
between point-of-sale and shipping data, and Mattel's overall
financial condition.
The lawsuit alleges that the defendants' conduct caused the
plaintiff and other stockholders to purchase Mattel common stock at
artificially inflated prices. On May 24, 2018, the Court granted
Mattel's motion to dismiss the class action lawsuit, and on June
25, 2018, the plaintiff filed a motion informing the Court he would
not be filing an amended complaint.
Judgment was entered in favor of Mattel and the individual
defendants on September 19, 2018. The plaintiff filed his Notice of
Appeal on October 16, 2018.
No further updates were provided in the Company's SEC report.
Mattel, Inc., a children's entertainment company, designs and
produces toys and consumer products worldwide. The company operates
through North America, International, and American Girl segments.
The company was founded in 1945 and is headquartered in El Segundo,
California.
MDL 2492: Battle Action v. NCAA over Safety Issues Consolidated
---------------------------------------------------------------
A case, KHIRY BATTLE, individually and on behalf of all others
similarly situated, the Plaintiff, vs. NATIONAL COLLEGIATE ATHLETIC
ASSOCIATION, the Defendant, Case No. 1:19-cv-00453 (Filed Jan. 28,
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. 27, 2019. The
Northern District of Illinois Court Clerk assigned Case No.
1:19-cv-01154 to the proceeding.
The Plaintiff brings this class action complaint against NCAA to
obtain redress for injuries sustained as result of Defendant's
reckless disregard for the health and safety of Student-Athletes.
The Battle 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 2492: Battle Action v. NCAA over Safety Issues Consolidated
---------------------------------------------------------------
A case, Khiry Battle, individually and on behalf of all others
similarly situated, the Plaintiff, vs. NATIONAL COLLEGIATE ATHLETIC
ASSOCIATION, the Defendant, Case No. 1:19-cv-00453 (Filed Jan. 28,
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. 27, 2019. The
Northern District of Illinois Court Clerk assigned Case No.
1:19-cv-01144 to the proceeding.
The Plaintiff brings this class action complaint against NCAA to
obtain redress for injuries sustained as result of Defendant's
reckless disregard for the health and safety of Student-Athletes.
The Battle 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 2492: Dance Action v. NCAA over Safety Issues Consolidated
--------------------------------------------------------------
A case, THOMAS DANCE, individually and on behalf of all others
similarly situated, the Plaintiff, vs. NATIONAL COLLEGIATE ATHLETIC
ASSOCIATION, the Defendant, Case No. 1:19-cv-00461 (Filed Jan. 28,
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. 27, 2019. The
Northern District of Illinois Court Clerk assigned Case No.
1:19-cv-01109 to the proceeding.
The Plaintiff brings this class action complaint against NCAA to
obtain redress for injuries sustained as result of Defendant's
reckless disregard for the health and safety of Student-Athletes.
The Dance 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 2492: Davis Action v. NCAA over Safety Issues Consolidated
--------------------------------------------------------------
A case, Charles Davis, individually and on behalf of all others
similarly situated, the Plaintiff, vs. NATIONAL COLLEGIATE ATHLETIC
ASSOCIATION, the Defendant, Case No. 1:19-cv-00468 (Filed Jan. 29,
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. 28, 2019. The
Northern District of Illinois Court Clerk assigned Case No.
1:19-cv-01122 to the proceeding.
The Plaintiff brings this class action complaint against NCAA to
obtain redress for injuries sustained as result of Defendant's
reckless disregard for the health and safety of Student-Athletes.
The Davis 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 2492: Dovale Suit v. NCAA over Safety Issues Consolidated
-------------------------------------------------------------
A case, Steven Dovale, individually and on behalf of all others
similarly situated, the Plaintiff, vs. NATIONAL COLLEGIATE ATHLETIC
ASSOCIATION, the Defendant, Case No. 1:19-cv-00460 (Filed Jan. 28,
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. 27, 2019. The
Illinois District Court Clerk assigned Case No. 1:19-cv-01108 to
the proceeding.
The Plaintiff brings this class action complaint against NCAA to
obtain redress for injuries sustained as result of Defendant's
reckless disregard for the health and safety of Student-Athletes.
The Dovale 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 2492: Drake Action v. NCAA over Safety Issues Consolidated
--------------------------------------------------------------
A case, KEVIN DRAKE, individually and on behalf of all others
similarly situated, the Plaintiff, vs. NATIONAL COLLEGIATE ATHLETIC
ASSOCIATION, the Defendant, Case No. 1:19-cv-00450 (Filed Jan. 28,
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. 27, 2019. The
Northern District of Illinois Court Clerk assigned Case No.
1:19-cv-01140 to the proceeding.
The Plaintiff brings this class action complaint against NCAA to
obtain redress for injuries sustained as result of Defendant's
reckless disregard for the health and safety of Student-Athletes.
The Drake 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 2492: Duda Suit v. NCAA over Safety Issues Consolidated
-----------------------------------------------------------
A case, Mark Duda, individually and on behalf of all others
similarly situated, the Plaintiff, vs. NATIONAL COLLEGIATE ATHLETIC
ASSOCIATION and Lenoir-Rhyne University, the Defendants, Case No.
1:19-cv-00490 (Filed Jan. 29, 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. 28, 2019. The Northern District of Illinois Court Clerk
assigned Case No. 1:19-cv-01158 to the proceeding.
The Plaintiff brings this class action complaint against NCAA to
obtain redress for injuries sustained as result of Defendant's
reckless disregard for the health and safety of Lenoir-Rhyne
University Student-Athletes.
The Duda 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 2492: Johnson Suit v. NCAA over Safety Issues Consolidated
--------------------------------------------------------------
A case, Howard Johnson, individually and on behalf of all others
similarly situated, the Plaintiff, vs. NATIONAL COLLEGIATE ATHLETIC
ASSOCIATION, the Defendant, Case No. 1:19-cv-00485 (Filed Jan. 29,
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. 28, 2019. The
Northern District of Illinois Court Clerk assigned Case No.
1:19-cv-01149 to the proceeding.
The Plaintiff brings this class action complaint against NCAA to
obtain redress for injuries sustained as result of Defendant's
reckless disregard for the health and safety of Student-Athletes.
The Johnson 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 2492: Jones Suit v. NCAA over Safety Issues Consolidated
------------------------------------------------------------
A case, Eric Jones, individually and on behalf of all others
similarly situated, the Plaintiff, vs. NATIONAL COLLEGIATE ATHLETIC
ASSOCIATION and Fairleigh Dickinson University, the Defendants,
Case No. 1:19-cv-00483 (Filed Jan. 29, 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. 28, 2019. The Northern District of Illinois Court
Clerk assigned Case No. 1:19-cv-01147 to the proceeding.
The Plaintiff brings this class action complaint against NCAA to
obtain redress for injuries sustained as result of Defendant's
reckless disregard for the health and safety of Fairleigh Dickinson
University Student-Athletes.
The Jones 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 2492: Martin Suit v. NCAA over Safety Issues Consolidated
-------------------------------------------------------------
A case, Chad Martin, individually and on behalf of all others
similarly situated, the Plaintiff, vs. NATIONAL COLLEGIATE ATHLETIC
ASSOCIATION and Central College, the Defendants, Case No.
1:19-cv-00479 (Filed Jan. 29, 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. 28, 2019. The Northern District of Illinois Court Clerk
assigned Case No. 1:19-cv-01142 to the proceeding.
The Plaintiff brings this class action complaint against NCAA to
obtain redress for injuries sustained as result of Defendant's
reckless disregard for the health and safety of Central College
Student-Athletes.
The Martin 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 2492: Megna Action v. NCAA over Health Issues Consolidated
--------------------------------------------------------------
A case, Anthony Megna, individually and on behalf of all others
similarly situated, the Plaintiff, vs. NATIONAL COLLEGIATE ATHLETIC
ASSOCIATION, the Defendant, Case No. 1:19-cv-00466 (Filed Jan. 29,
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. 28, 2019. The
Northern District of Illinois Court Clerk assigned Case No.
1:19-cv-01117 to the proceeding.
The Plaintiff brings this class action complaint against NCAA to
obtain redress for injuries sustained as result of Defendant's
reckless disregard for the health and safety of Student-Athletes.
The Megna 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 2492: Montgomery Action v. NCAA over Health Issues Consolidated
-------------------------------------------------------------------
A case, Devin Montgomery, individually and on behalf of all others
similarly situated, the Plaintiff, vs. NATIONAL COLLEGIATE ATHLETIC
ASSOCIATION, the Defendant, Case No. 1:19-cv-00473 (Filed Jan. 29,
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. 28, 2019. The
Northern District of Illinois Court Clerk assigned Case No.
1:19-cv-01128 to the proceeding.
The Plaintiff brings this class action complaint against NCAA to
obtain redress for injuries sustained as result of Defendant's
reckless disregard for the health and safety of Student-Athletes.
The Montgomery 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 2492: Robert Action v. NCAA over Health Issues Consolidated
---------------------------------------------------------------
A case, DONALD ROBERT, individually and on behalf of all others
similarly situated, the Plaintiff, vs. NATIONAL COLLEGIATE ATHLETIC
ASSOCIATION and Worcester Polytechnic Institute, the Defendants,
Case No. 1:19-cv-00481 (Filed Jan. 29, 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. 28, 2019. The Northern District of Illinois Court
Clerk assigned Case No. 1:19-cv-01145 to the proceeding.
The Plaintiff brings this class action complaint against NCAA to
obtain redress for injuries sustained as result of Defendant's
reckless disregard for the health and safety of Worcester
Polytechnic Institute Student-Athletes.
The Robert 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 2492: Schultz Suit v. NCAA over Safety Issues Consolidated
--------------------------------------------------------------
A case, Scott Schultz, individually and on behalf of all others
similarly situated, individually and on behalf of all others
similarly situated, the Plaintiff, vs. NATIONAL COLLEGIATE ATHLETIC
ASSOCIATION and Concordia University, the Defendants, Case No.
1:19-cv-00492 (Filed Jan. 29, 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. 28, 2019. The Northern District of Illinois Court Clerk
assigned Case No. 1:19-cv-01160 proceeding.
The Plaintiff brings this class action complaint against NCAA to
obtain redress for injuries sustained as result of Defendant's
reckless disregard for the health and safety of Concordia
University Student-Athletes.
The Schultz 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 2492: Slack Action v. NCAA over Safety Issues Consolidated
--------------------------------------------------------------
A case, KEVIN SLACK, individually and on behalf of all others
similarly situated, the Plaintiff, vs. NATIONAL COLLEGIATE ATHLETIC
ASSOCIATION, the Defendant, Case No. 1:19-cv-00451 (Filed Jan. 28,
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. 27, 2019. The
Northern District of Illinois Court Clerk assigned Case No.
1:19-cv-01141 to the proceeding.
The Plaintiff brings this class action complaint against NCAA to
obtain redress for injuries sustained as result of Defendant's
reckless disregard for the health and safety of Student-Athletes.
The Slack 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 2492: Smith Suitv. NCAA over Health & Safety Issues Moved
-------------------------------------------------------------
A case, Paul Smith, individually and on behalf of all others
similarly situated, individually and on behalf of all others
similarly situated, the Plaintiff, vs. NATIONAL COLLEGIATE ATHLETIC
ASSOCIATION, the Defendant, Case No. 1:19-cv-00502 (Filed Jan. 29,
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. 28, 2019. The
Northern District of Illinois Court Clerk assigned Case No.
1:19-cv-01168 proceeding.
The Plaintiff brings this class action complaint against NCAA to
obtain redress for injuries sustained as result of Defendant's
reckless disregard for the health and safety of Student-Athletes.
The Smith 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 2492: Wagner Action v. NCAA over Safety Issues Consolidated
---------------------------------------------------------------
A case, Nick Wagner, individually and on behalf of all others
similarly situated, the Plaintiff, vs. NATIONAL COLLEGIATE ATHLETIC
ASSOCIATION, the Defendant, Case No. 1:19-cv-00457 (Filed Jan. 28,
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. 27, 2019. The
Northern District of Illinois Court Clerk assigned Case No.
1:19-cv-01151 to the proceeding.
The Plaintiff brings this class action complaint against NCAA to
obtain redress for injuries sustained as result of Defendant's
reckless disregard for the health and safety of Student-Athletes.
The Wagner 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 2492: Woods Action v. NCAA over Safety Issues Consolidated
--------------------------------------------------------------
A case, Brian Woods, individually and on behalf of all others
similarly situated, individually and on behalf of all others
similarly situated, the Plaintiff, vs. NATIONAL COLLEGIATE ATHLETIC
ASSOCIATION, the Defendant, Case No. 1:19-cv-00467 (Filed Jan. 29,
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. 28, 2019. The
Northern District of Illinois Court Clerk assigned Case No.
1:19-cv-01120 proceeding.
The Plaintiff brings this class action complaint against NCAA to
obtain redress for injuries sustained as result of Defendant's
reckless disregard for the health and safety of Student-Athletes.
The Woods 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 2591: Court Grants Watts Guerra, et al.'s Bid to Dismiss Suit
-----------------------------------------------------------------
In the case, IN RE: SYNGENTA AG MIR 162 CORN LITIGATION, This
Document Relates To: Kellogg, et al. v. Watts Guerra, LLP, et al.,
No.18-2408-JWL, MDL No. 2591, Case No. 14-md-2591-JWL (D. Kan.),
Judge John W. Lungstrum of the U.S. District Court for the District
of Kansas granted the motions of Defendants Watts Guerra, LLP,
Mikal Watts, and Francisco Guerra, in which most of the other
Defendants have joined; and Defendant Lowe Eklund Wakefield Co.,
LPA, to dismiss.
The action has been transferred into multi-district litigation,
over which the Court presides, involving claims by farmers and
others in the corn industry against various related entities known
collectively as Syngenta. On Dec. 7, 2018, the Court certified a
settlement class and approved a global settlement of claims against
Syngenta, including claims that had been pending in the MDL, in a
similar consolidated proceeding in Minnesota state court, and in
federal court in Illinois. The Court also awarded one third of
the settlement fund as attorney fees.
On Dec. 31, 2018, the Court allocated the attorney fee award among
various pools of attorneys (with further allocation within the
pools to be completed in the future by the three courts). In so
doing, it allocated a portion of the fee award to a pool to
compensate individually-retained private attorneys ("IRPAs"), and
it held that any attorney representing a client on a contingent fee
basis relating to the settled claims could recover attorney fees
only from the Court's fee award and the allocation pools.
Watts Guerra and various associated counsel filed individual
lawsuits against Syngenta in Minnesota state court on behalf of a
large number of clients. Those clients were generally excluded
from the litigation classes certified in the MDL and in Minnesota
state court. Watts Guerra agreed to the settlement, however, and
its clients were included in the settlement class. Watts Guerra
and associated counsel presently seek awards of attorney fees from
the Minnesota pool allocation and the IRPA pool allocation.
In the present suit (Kellogg), the Plaintiffs are six sets of corn
growers who were formerly represented by Watts Guerra and
associated counsel in the Syngenta litigation. They assert claims
against those attorneys, including claims under the federal
Racketeer Influenced and Corrupt Organizations ("RICO") Act,
Minnesota statutes, and common law. The Plaintiffs also seek to
assert those claims on behalf of a class of approximately 60,000
farmers who signed retainer agreements with the Defendants relating
to the Syngenta litigation.
In general, the Plaintiffs allege that the Defendants engaged in a
fraudulent scheme to maximize their attorney fees, in which the
Defendants pursued individual lawsuits while misrepresenting or
failing to disclose the possibility and benefits of participating
in class actions.
The Defendants now seek dismissal of those claims. They argue that
the Plaintiffs cannot satisfy the constitutional requirement of
standing.
Judge Lunstrum agrees and concludes that the Plaintiffs have failed
to satisfy their constitutional burden to establish standing. He
therefore granted the pending motions, and dismissed the action in
its entirety. He also granted the Plaintiffs' motion for leave to
file a surreply brief. He denied as moot the Plaintiffs' motion
for leave to file a supplemental exhibit. The motion by Joanna and
John Burke for reconsideration or review of the Magistrate Judge's
order denying their motion to intervene in the action is also
denied as moot.
A full-text copy of the Court's March 1, 2019 Memorandum and Order
is available at https://is.gd/F83UaD from Leagle.com.
All Plaintiffs, represented by Don M. Downing --
ddowning@grgpc.com
-- Gray, Ritter & Graham, PC, pro hac vice, Patrick J. Stueve --
stueve@stuevesiegel.com -- Stueve Siegel Hanson LLP, Richard L.
Coffman, The Coffman Law Firm, Scott A. Powell -- scott@hwnn.com
--
Hare Wynn Newell & Newton, pro hac vice & William B. Chaney --
wchaney@grayreed.com -- Gray Reed & McGraw, LLP, pro hac vice.
All Defendants, represented by Michael D. Jones --
michael.jones@kirkland.com -- Kirkland & Ellis, pro hac vice &
Thomas P. Schult -- tschult@berkowitzoliver.com -- Berkowitz
Oliver
Williams Shaw & Eisenbrandt, LLP.
Ellen K. Reisman, Special Master, represented by Ellen K. Reisman
-- tschult@berkowitzoliver.com -- Reisman Karron Greene LLP.
Stracener Farming Company, Plaintiff, represented by Clark W.
Mason
-- clark@clarkmason.com -- Clark Mason Attorneys, pro hac vice,
James J. Thompson, Jr. -- JT@JimThompsonLaw.com -- pro hac vice,
Jerry Obe Kelly, Kelly Law Firm, PA, pro hac vice, John Paul Byrd
-- wwinfo@paulbyrdlawfirm.com -- Paul Byrd Law Firm, PLLC, pro hac
vice, Martin J. Phipps -- mphipps@phippscavazos.com -- Phipps
Anderson Deacon LLP, Mikal C. Watts -- mcwatts@wattsguerra.com --
Watts Guerra, LLP & Nolan E. Awbrey, Riley Jackson, PC, pro hac
vice.
David Stracener, Plaintiff, represented by Clark W. Mason, Clark
Mason Attorneys, pro hac vice, James J. Thompson, Jr., pro hac
vice, Jerry Obe Kelly, Kelly Law Firm, PA, pro hac vice, John Paul
Byrd, Paul Byrd Law Firm, PLLC, pro hac vice, Martin J. Phipps,
Phipps Anderson Deacon LLP, Mikal C. Watts, Watts Guerra, LLP &
Nolan E. Awbrey, Riley Jackson, PC, pro hac vice.
Larry Petit, Plaintiff, represented by Clark W. Mason, Clark Mason
Attorneys, pro hac vice, James J. Thompson, Jr., pro hac vice,
Jerry Obe Kelly, Kelly Law Firm, PA, pro hac vice, John Paul Byrd,
Paul Byrd Law Firm, PLLC, pro hac vice, Martin J. Phipps, Phipps
Anderson Deacon LLP, Mikal C. Watts, Watts Guerra, LLP & Nolan E.
Awbrey, Riley Jackson, PC, pro hac vice.
Trans Coastal Supply Company Inc., Plaintiff, represented by Jayne
Conroy -- JConroy@simmonsfirm.com -- Simmons Hanly Conroy, Martin
J. Phipps, Phipps Anderson Deacon LLP, Mikal C. Watts, Watts
Guerra, LLP, Patrick J. Stueve, Stueve Siegel Hanson LLP, Paul J.
Hanly -- phanly@simmonsfirm.com -- Jr., Simmons Hanly Conroy,
Sarah
Burns, Simmons Hanly Conroy & William B. Chaney --
wchaney@grayreed.com -- Gray Reed & McGraw, LLP.
Luke Claas, Plaintiff, represented by Adam J. Levitt --
wchaney@grayreed.com -- Grant & Eisenhofer, PA, pro hac vice,
Edmund S. Aronowitz, Grant & Eisenhofer, PA, pro hac vice, J.
Brett
Milbourn -- BMILBOURN@WBSVLAW.COM -- Walters Bender Strohbehn &
Vaughan, PC, James J. Pizzirusso, Hausfeld LLP, pro hac vice,
Martin J. Phipps, Phipps Anderson Deacon LLP, Mikal C. Watts,
Watts
Guerra, LLP, Paul D. Lundberg -- paul@lundberglawfirm.com --
Lundberg Law Firm, PLC, pro hac vice & Thomas V. Bender --
TBENDER@WBSVLAW.COM -- Walters Bender Strohbehn & Vaughan, PC.
Meinke Farms, Plaintiff, represented by Adam J. Levitt, Grant &
Eisenhofer, PA, pro hac vice, Edmund S. Aronowitz, Grant &
Eisenhofer, PA, pro hac vice, J. Brett Milbourn, Walters Bender
Strohbehn & Vaughan, PC, James J. Pizzirusso, Hausfeld LLP, pro
hac
vice, Martin J. Phipps, Phipps Anderson Deacon LLP, Mikal C.
Watts,
Watts Guerra, LLP, Paul D. Lundberg, Lundberg Law Firm, PLC, pro
hac vice & Thomas V. Bender, Walters Bender Strohbehn & Vaughan,
PC.
Cargill International SA, Defendant, represented by Clifford M.
Greene -- cgreene@greeneespel.com -- Greene Espel PLLP, Erin
Sindberg Porter -- esindbergporter@greeneespel.com -- Greene Espel
PLLP, Janine W. Kimble, Greene Espel PLLP, John W. Ursu --
jursu@greeneespel.com -- Greene Espel PLLP, Martin J. Phipps,
Phipps Anderson Deacon LLP, Mikal C. Watts, Watts Guerra, LLP & X.
Kevin Zhao -- kzhao@greeneespel.com -- Greene Espel PLLP.
Syngenta Biotechnology, Inc., Third Party Plaintiff, represented
by
D. Scott Aberson -- scott.aberson@maslon.com -- Maslon Edelman
Borman & Brand, LLP, David S. Chipman, CASA of Shawnee County, pro
hac vice, Edwin J.U. -- edwin.u@kirkland.com -- Kirkland & Ellis,
Michael D. Jones -- michael.jones@kirkland.com -- Kirkland &
Ellis,
Patrick F. Philbin -- patrick.philbin@kirkland.com -- Kirkland &
Ellis & Thomas P. Schult -- tschult@berkowitzoliver.com --
Berkowitz Oliver Williams Shaw & Eisenbrandt, LLP.
Syngenta Corporation, Third Party Plaintiff, represented by David
S. Chipman, CASA of Shawnee County, pro hac vice.
Syngenta Seeds, Inc., Third Party Plaintiff, represented by David
S. Chipman, CASA of Shawnee County, pro hac vice.
Cargill International SA, Defendant, represented by Clifford M.
Greene, Greene Espel PLLP, Erin Sindberg Porter, Greene Espel
PLLP,
Janine W. Kimble, Greene Espel PLLP, John W. Ursu, Greene Espel
PLLP, Martin J. Phipps, Phipps Anderson Deacon LLP, Mikal C.
Watts,
Watts Guerra, LLP & X. Kevin Zhao, Greene Espel PLLP.
MDL 2672: Court Denies Bids to Issue Suggestion of Remand to JPML
-----------------------------------------------------------------
In the case, IN RE: VOLKSWAGEN "CLEAN DIESEL" MARKETING, SALES
PRACTICES, AND PRODUCTS LIABILITY LITIGATION. This Order Relates
To: MDL Dkt. Nos. 3597, 3611, 3641, 3653, MDL No. 2672 CRB (JSC)
(N.D. Cal.), Judge Charles R. Breyer of the U.S. District Court for
the Northern District of California denied the ECF Nos. 3597, 3611,
3641, and 3653 motions to issue a suggestion of remand to the
Judicial Panel on Multidistrict Litigation.
The ECF Nos. 3597, 3611, 3641, and 3653 motions were filed on
behalf of certain Plaintiffs who, for the most part, initiated
cases against Volkswagen in federal courts outside of the Northern
District of California and who had their cases transferred to the
Court as part of the MDL. In their motions, these Plaintiffs have
asked the Court, as the transferee district court, to issue a
suggestion of remand to the Judicial Panel on Multidistrict
Litigation.
Judge Breyer declines to issue a suggestion of remand at this time.
In multidistrict litigation, remand to transferor district courts
is appropriate when centralized pretrial proceedings have run their
course. The centralized pretrial proceedings in the case have not
yet reached that point. To the contrary, continued consolidation
will eliminate duplicative discovery, prevent inconsistent pretrial
rulings, and conserve the resources of the parties, their counsel,
and the judiciary, all of which are factors that the counsel
against remand. The Judge will issue one or more scheduling orders
governing further proceedings in these cases in due course.
A full-text copy of the Court's Feb. 27, 2019 Order is available at
https://is.gd/fgKbm4 from Leagle.com.
Nicholas Benipayo, Plaintiff, represented by Robert B. Carey --
rob@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, pro hac vice,
Steve W. Berman -- steve@hbsslaw.com -- Hagens Berman Sobol Shapiro
LLP, pro hac vice & Thomas Eric Loeser -- toml@hbsslaw.com --
Hagens Berman Sobol Shapiro LLP, pro hac vice.
Nadine Bonda, Plaintiff, represented by Adam M. Stewart --
astewart@shulaw.com -- Shapiro Haber & Urmy LLP & Thomas G. Shapiro
-- tshapiro@shulaw.com -- Shapiro Haber and Urmy, LLP.
Brian Connelly, Plaintiff, represented by Thomas G. Shapiro,
Shapiro Haber and Urmy, LLP.
Volkswagen Group of America, Inc., a New Jersey Corporation,
Defendant, represented by Amie Adelia Vague --
avague@lightfootlaw.com -- Lightfoot Franklin & White, Casey Erin
Lucier -- clucier@mcguirewoods.com -- McGuireWoods LLP, Charles J.
Baker, III -- chuck.baker@wbd-us.com -- Womble Carlyle Sandridge
and Rice, Colin Hampton Tucker -- ctucker@rhodesokla.com -- Rhodes
Hieronymus Jones Tucker & Gable, Dana Woodrum Lang --
dana.lang@wbd-us.com -- Womble Carlyle Sandridge and Rice, David M.
Eisenberg -- eisenberg@bscr-law.com -- Sterchi, Cowden & Rice, LLC,
Henry Buist Smythe, Jr. -- henry.smythe@wbd-us.com -- Womble
Carlyle Sandridge and Rice, Howard Feller --
hfeller@mcguirewoods.com -- McGuireWoods LLP, William R. Scherer --
wscherer@conradscherer.com -- Conrad and Scherer, LLP, J. Randolph
Bibb, Jr. -- rbibb@lewisthomason.com -- Lewis, Thomason, King,
Krieg & Waldrop, P.C., James K. Toohey -- tooheyj@jbltd.com --
Johns & Bell LTD, Jeffrey Lance Chase -- JChase@herzfeld-rubin.com
-- Chase Kurshan Herzfeld & Rufin LLC, Jeffrey S. Rugg --
jrugg@bhfs.com -- Brownstein Hyatt Farber Schreck, LLP, Jennifer
Marino Thibodaux -- jthibodaux@gibbonslaw.com -- Gibbons PC.
MDL 2672: Court Denies Bids to Remand VWGoA Clean Diesel Suit
-------------------------------------------------------------
In the case, IN RE: VOLKSWAGEN "CLEAN DIESEL" MARKETING, SALES
PRACTICES, AND PRODUCTS LIABILITY LITIGATION. This Order Relates
To: MDL Dkt. No. 3648, 3651, 3652, 3656, MDL No. 2672 CRB (JSC)
(N.D. Cal.), Judge Charles R. Breyer of the U.S. District Court for
the Northern District of California denied ECF Nos. 3648, 3651,
3652, and 3656 motions to remand.
The Court recently denied ECF No. 3654, a motion to remand that was
filed by counsel at Daniels, Fine, Israel, Schonbuch & Lebovits LLP
and the Knight Law Group LLP on behalf of the Plaintiffs in 34
separate cases that were originally filed in California state court
and then removed by Volkswagen Group of America, Inc. to federal
court.
The ECF Nos. 3648, 3651, 3652, and 3656 motions to remand are
identical to the ECF No. 3654 motion. They were filed by the same
counsel on behalf of the same Plaintiffs, and they track verbatim
the arguments raised in ECF No. 3654. Because they are identical,
Judge Breyer denied them for the same reasons stated in the Court's
order denying ECF No. 3654.
A full-text copy of the Court's Feb. 27, 2019 Order is available at
https://is.gd/AhIOGC from Leagle.com.
Nicholas Benipayo, Plaintiff, represented by Robert B. Carey --
rob@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, pro hac vice,
Steve W. Berman -- steve@hbsslaw.com -- Hagens Berman Sobol Shapiro
LLP, pro hac vice & Thomas Eric Loeser -- toml@hbsslaw.com --
Hagens Berman Sobol Shapiro LLP, pro hac vice.
Nadine Bonda, Plaintiff, represented by Adam M. Stewart --
astewart@shulaw.com -- Shapiro Haber & Urmy LLP & Thomas G. Shapiro
-- tshapiro@shulaw.com -- Shapiro Haber and Urmy, LLP.
Brian Connelly, Plaintiff, represented by Thomas G. Shapiro,
Shapiro Haber and Urmy, LLP.
Volkswagen Group of America, Inc., a New Jersey Corporation,
Defendant, represented by Amie Adelia Vague --
avague@lightfootlaw.com -- Lightfoot Franklin & White, Casey Erin
Lucier -- clucier@mcguirewoods.com -- McGuireWoods LLP, Charles J.
Baker, III -- chuck.baker@wbd-us.com -- Womble Carlyle Sandridge
and Rice, Colin Hampton Tucker -- ctucker@rhodesokla.com -- Rhodes
Hieronymus Jones Tucker & Gable, Dana Woodrum Lang --
dana.lang@wbd-us.com -- Womble Carlyle Sandridge and Rice, David M.
Eisenberg -- eisenberg@bscr-law.com -- Sterchi, Cowden & Rice, LLC,
Henry Buist Smythe, Jr. -- henry.smythe@wbd-us.com -- Womble
Carlyle Sandridge and Rice, Howard Feller --
hfeller@mcguirewoods.com -- McGuireWoods LLP, William R. Scherer --
wscherer@conradscherer.com -- Conrad and Scherer, LLP, J. Randolph
Bibb, Jr. -- rbibb@lewisthomason.com -- Lewis, Thomason, King,
Krieg & Waldrop, P.C., James K. Toohey -- tooheyj@jbltd.com --
Johns & Bell LTD, Jeffrey Lance Chase -- JChase@herzfeld-rubin.com
-- Chase Kurshan Herzfeld & Rufin LLC, Jeffrey S. Rugg --
jrugg@bhfs.com -- Brownstein Hyatt Farber Schreck, LLP, Jennifer
Marino Thibodaux -- jthibodaux@gibbonslaw.com -- Gibbons PC.
MDL 2879: Dorfman Suit vs Marriott over Data Breach Consolidated
----------------------------------------------------------------
A class action lawsuit titled Robert Dorfman, Individually and on
Behalf of a Class of all Others Similarly Situated, the Plaintiff,
vs. MARRIOTT INTERNATIONAL, INC., and Starwood Hotels & Resorts
Worldwide LLC, the Defendants, an David J Kimmel, Michael C.
Christner, and Thomas Stabile, interested parties, Case No.
3:18-cv-01982 (Filed Dec. 5, 2019), was transferred from the U.S.
District Court for the District of Connecticut, to the U.S.
District Court for the District of Maryland (Greenbelt) on Feb. 27,
2019. The District of Maryland Court Clerk assigned Case No.
8:19-cv-00507-PWG to the proceeding.
The Plaintiffs allege violation of customers' privacy rights.
The Dorfman case is being consolidated with MDL No. 2879 in re:
Marriott International, Inc., Customer Data Security Breach
Litigation. The MDL was created by Order of the United States
Judicial Panel on Multidistrict Litigation on Feb. 6, 2019. These
actions -- which are putative nationwide and/or statewide consumer
class actions -- share factual issues concerning a
recently-disclosed breach of Marriott's Starwood guest reservation
database from 2014 to 2018. In its Feb. 6, 2019 Order, the MDL
Panel found that the factual overlap among these actions is
substantial, as they all arise from the same data breach, and they
all allege that Marriott failed to put in to place reasonable data
protections. Many also allege that Marriott did not timely notify
the public of the data breach. Centralization will eliminate
duplicative discovery, prevent inconsistent pretrial rulings on
class certification and other issues, and conserve the resources of
the parties, their counsel, and the judiciary. Presiding Judge in
the MDL is Hon. Judge. Paul W. Grimm. The lead case is
8:19-md-02879-PWG.[BN]
Attorneys for the Defendants:
Daniel R Warren, Esq.
BAKER AND HOSTETLER LLP
Key Tower 127 Public Square Ste. 2000
Cleveland, OH 44114
Telephone: (216) 861-7145
Facsimile: (216) 696-0740
E-mail: dwarren@bakerlaw.com
- and -
Gilbert S Keteltas, Esq.
Lisa M Ghannoum, Esq.
BAKER AND HOSTETLER LLP
1050 Connecticut Ave. NW Ste. 1100
Washington, DC 20036
Telephone: (202) 861-1530
Facsimile: (202) 861-1783
E-mail: gketeltas@bakerlaw.com
lghannoum@bakerlaw.com
METLIFE INC: Court Dismisses All Defendants in Roycroft Class Suit
------------------------------------------------------------------
MetLife, Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on February 22, 2019, for the
fiscal year ended December 31, 2018, that the court has dismissed
all the defendants in the case, Roycroft v. MetLife, Inc., et al.
(S.D.N.Y., filed June 18, 2018).
Plaintiff filed this putative class action on behalf of all persons
due benefits under group annuity contracts but who did not receive
the entire amount to which they were entitled. Plaintiff asserts
claims for unjust enrichment, accounting, and restitution based on
allegations that the Company failed to timely pay annuity benefits
to certain group annuitants.
Plaintiff seeks declaratory and injunctive relief, as well as
unspecified compensatory and punitive damages, and other relief.
The court dismissed this matter as to all defendants on January 15,
2019.
MetLife, Inc. engages in the insurance, annuities, employee
benefits, and asset management businesses. It operates through five
segments: U.S.; Asia; Latin America; Europe, the Middle East and
Africa; and MetLife Holdings. MetLife, Inc. was founded in 1863 and
is headquartered in New York, New York.
METLIFE INC: Still Defends Newman Class Action in Illinois
----------------------------------------------------------
MetLife, Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on February 22, 2019, for the
fiscal year ended December 31, 2018, that the company continues to
defend a putative class action lawsuit entitled, Newman v.
Metropolitan Life Insurance Company (N.D. Ill., filed March 23,
2016).
Plaintiff filed this putative class action alleging causes of
action for breach of contract, fraud, and violations of the
Illinois Consumer Fraud and Deceptive Business Practices Act, on
behalf of herself and all persons over age 65 who selected a
Reduced Pay at Age 65 payment feature on their long-term care
insurance policies and whose premium rates were increased after age
65.
Plaintiff seeks unspecified compensatory, statutory and punitive
damages, as well as recessionary and injunctive relief.
On April 12, 2017, the court granted MLIC's motion to dismiss the
action. Plaintiff appealed this ruling and the United States Court
of Appeals for the Seventh Circuit reversed and remanded the case
to the district court for further proceedings.
The Company intends to defend this action vigorously.
MetLife, Inc. engages in the insurance, annuities, employee
benefits, and asset management businesses. It operates through five
segments: U.S.; Asia; Latin America; Europe, the Middle East and
Africa; and MetLife Holdings. MetLife, Inc. was founded in 1863 and
is headquartered in New York, New York.
MOMENTA PHARMACEUTICALS: Still Faces LOVENOX-Related Suit
---------------------------------------------------------
Momenta Pharmaceuticals, Inc. said in its Form 10-K report filed
with the U.S. Securities and Exchange Commission on February 22,
2019, for the fiscal year ended December 31, 2018, that the company
continues to defend a class action lawsuit filed by The Hospital
Authority of Metropolitan Government of Nashville and Davidson
County, Tennessee, d/b/a Nashville General Hospital, or NGH,
related to the drug LOVENOX.
On October 14, 2015, The Hospital Authority of Metropolitan
Government of Nashville and Davidson County, Tennessee, d/b/a
Nashville General Hospital, or NGH, filed a class action suit
against the company and Sandoz AG (Sandoz) in the United States
District Court for the Middle District of Tennessee on behalf of
certain purchasers of LOVENOX or generic Enoxaparin Sodium
Injection.
The complaint alleges that, in connection with filing the September
2011 patent infringement suit against Amphastar and Actavis, the
company and Sandoz sought to prevent Amphastar from selling generic
Enoxaparin Sodium Injection and thereby exclude competition for
generic Enoxaparin Sodium Injection in violation of federal
anti-trust laws.
NGH is seeking injunctive relief, disgorgement of profits and
unspecified damages and fees. In December 2015, the company and
Sandoz filed a motion to dismiss and a motion to transfer the case
to the United States District Court for the District of
Massachusetts.
On March 21, 2017, the United States District Court for the Middle
District of Tennessee dismissed NGH's claim for damages against the
company and Sandoz, but allowed the case to move forward, in part,
for NGH's claims for injunctive and declaratory relief. In the same
opinion, the United States District Court for the Middle District
of Tennessee denied the company's motion to transfer.
On June 9, 2017, NGH filed a motion to amend its complaint to add a
new named plaintiff, the American Federation of State, County and
Municipal Employees District Council 37 Health & Security Plan, or
DC37. NGH and DC37 seek to assert claims for damages under the laws
of more than 30 different states, on behalf of a putative class of
indirect purchasers of Lovenox or generic enoxaparin.
On June 30, 2017, the company and Sandoz filed a brief opposing the
motion to amend the complaint. On December 14, 2017, the District
Court granted NGH's motion to amend. In January 2018, the company
and Sandoz filed three motions to dismiss the amended complaint. On
December 6, 2018 the District Court granted one of the motions,
granted one in part and denied one.
Momenta said, "As a result the suit will continue pursuant to the
surviving portions of the amended complaint. While the outcome of
litigation is inherently uncertain, we believe this suit is without
merit, and we intend to vigorously defend ourselves in this
litigation."
Momenta Pharmaceuticals, Inc., a biotechnology company, focuses on
the discovery and development of novel biologic therapies for the
treatment of rare immune-mediated diseases in the United States. he
company was formerly known as Mimeon, Inc. and changed its name to
Momenta Pharmaceuticals, Inc. in September 2002. Momenta
Pharmaceuticals, Inc. was founded in 2001 and is headquartered in
Cambridge, Massachusetts.
MONSANTO COMPANY: Aldridges Sue over Sale of Herbicide Roundup
--------------------------------------------------------------
JAMES ALDRIDGE and KIMBERLY ALDRIDGE, the Plaintiffs, v. MONSANTO
COMPANY, the Defendants, Case No. 4:19-cv-00378-PLC (E.D. Mo.,
March 1, 2019), seeks to recover damages suffered by Plaintiffs, as
a direct and proximate result of the Defendant's negligent and
wrongful conduct in connection with the design, development,
manufacture, testing, packaging, promoting, marketing, advertising,
distribution, labeling, and/or sale of the herbicide Roundup (TM),
containing the active ingredient glyphosate.
The Plaintiffs maintain that Roundup (TM) and/or glyphosate is
defective, dangerous to human health, unfit and unsuitable to be
marketed and sold in commerce, and lacked proper warnings and
directions as to the dangers associated with its use. The
Plaintiff's injuries, like those striking thousands of similarly
situated victims across the country, were avoidable.
The Plaintiffs bring this action for personal injuries sustained by
exposure to Roundup (TM), which contains the active ingredient
glyphosate and the surfactant polyethoxylated tallow amine (POEA).
As a direct and proximate result of being exposed to Roundup, the
Plaintiff developed diffuse Non-Hodgkin's Lymphoma.
Roundup refers to all formulations of Defendant's 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, Roundup
Original 2k Herbicide, Roundup Original II Herbicide, Roundup Pro
Concentrate, Roundup Pro Dry Herbicide, and Roundup Promax.[BN]
The Plaintiffs are represented by:
Seth S. Webb, Esq.
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
MONSANTO COMPANY: Baggett Sues over Sale of Herbicide Roundup
-------------------------------------------------------------
RONALD BAGGETT, the Plaintiff, v. MONSANTO COMPANY, the Defendants,
Case No. 4:19-cv-00381 (E.D. Mo., March 1, 2019), seeks to recover
damages suffered by Plaintiff, as a direct and proximate result of
the Defendant's negligent and wrongful conduct in connection with
the design, development, manufacture, testing, packaging,
promoting, marketing, advertising, distribution, labeling, and/or
sale of the herbicide Roundup (TM), containing the active
ingredient glyphosate.
The Plaintiff maintains that Roundup (TM) and/or glyphosate is
defective, dangerous to human health, unfit and unsuitable to be
marketed and sold in commerce, and lacked proper warnings and
directions as to the dangers associated with its use. The
Plaintiff's injuries, like those striking thousands of similarly
situated victims across the country, were avoidable.
The Plaintiff brings this action for personal injuries sustained by
exposure to Roundup (TM), which contains the active ingredient
glyphosate and the surfactant polyethoxylated tallow amine (POEA).
As a direct and proximate result of being exposed to Roundup, the
Plaintiff developed diffuse Non-Hodgkin's Lymphoma.
Roundup refers to all formulations of Defendant's 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, Roundup
Original 2k Herbicide, Roundup Original II Herbicide, Roundup Pro
Concentrate, Roundup Pro Dry Herbicide, and Roundup Promax.[BN]
The Plaintiffs are represented by:
Seth S. Webb, Esq.
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
MONSANTO COMPANY: Beasley Sues over Sale of Herbicide Roundup
-------------------------------------------------------------
JOSEPH BEASLEY, the Plaintiff, v. MONSANTO COMPANY, the Defendants,
Case No. 4:19-cv-00383 (E.D. Mo., March 1, 2019), seeks to recover
damages suffered by Plaintiff, as a direct and proximate result of
the Defendant's negligent and wrongful conduct in connection with
the design, development, manufacture, testing, packaging,
promoting, marketing, advertising, distribution, labeling, and/or
sale of the herbicide Roundup (TM), containing the active
ingredient glyphosate.
The Plaintiff maintains that Roundup (TM) and/or glyphosate is
defective, dangerous to human health, unfit and unsuitable to be
marketed and sold in commerce, and lacked proper warnings and
directions as to the dangers associated with its use. The
Plaintiff's injuries, like those striking thousands of similarly
situated victims across the country, were avoidable.
The Plaintiff brings this action for personal injuries sustained by
exposure to Roundup (TM), which contains the active ingredient
glyphosate and the surfactant polyethoxylated tallow amine (POEA).
As a direct and proximate result of being exposed to Roundup, the
Plaintiff developed diffuse Non-Hodgkin's Lymphoma.
Roundup refers to all formulations of Defendant's 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, Roundup
Original 2k Herbicide, Roundup Original II Herbicide, Roundup Pro
Concentrate, Roundup Pro Dry Herbicide, and Roundup Promax.[BN]
The Plaintiffs are represented by:
Seth S. Webb, Esq.
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
MONSANTO COMPANY: Bevers Sue over Sale of Herbicide Roundup
-----------------------------------------------------------
TERRI J. BEVER and BRUCE A. BEVER, the Plaintiffs, v. MONSANTO
COMPANY, the Defendants, Case No. 3:19-cv-01237-VC (E.D. Mo., Feb.
18, 2019), seeks to recover damages suffered by Plaintiffs, as a
direct and proximate result of the Defendant's negligent and
wrongful conduct in connection with the design, development,
manufacture, testing, packaging, promoting, marketing, advertising,
distribution, labeling, and/or sale of the herbicide Roundup (TM),
containing the active ingredient glyphosate.
The Plaintiffs maintain that Roundup (TM) and/or glyphosate is
defective, dangerous to human health, unfit and unsuitable to be
marketed and sold in commerce, and lacked proper warnings and
directions as to the dangers associated with its use. The
Plaintiffs' injuries, like those striking thousands of similarly
situated victims across the country, were avoidable.
The Plaintiffs bring this action for personal injuries sustained by
exposure to Roundup (TM), which contains the active ingredient
glyphosate and the surfactant polyethoxylated tallow amine (POEA).
As a direct and proximate result of being exposed to Roundup, the
Plaintiff developed diffuse Non-Hodgkin's Lymphoma.
Roundup refers to all formulations of Defendant's 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, Roundup
Original 2k Herbicide, Roundup Original II Herbicide, Roundup Pro
Concentrate, Roundup Pro Dry Herbicide, and Roundup Promax.[BN]
The Plaintiffs are represented by:
Seth S. Webb, Esq.
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
MONSANTO COMPANY: Christian Sues over Sale of Herbicide Roundup
---------------------------------------------------------------
BARBARA CHRISTIAN, the Plaintiff, v. MONSANTO COMPANY, the
Defendants, Case No. 4:19-cv-00366 (E.D. Mo., Feb. 28, 2019), seeks
to recover damages suffered by Plaintiff, as a direct and proximate
result of the Defendant's negligent and wrongful conduct in
connection with the design, development, manufacture, testing,
packaging, promoting, marketing, advertising, distribution,
labeling, and/or sale of the herbicide Roundup (TM), containing the
active ingredient glyphosate.
The Plaintiff maintains that Roundup (TM) and/or glyphosate is
defective, dangerous to human health, unfit and unsuitable to be
marketed and sold in commerce, and lacked proper warnings and
directions as to the dangers associated with its use. The
Plaintiff's injuries, like those striking thousands of similarly
situated victims across the country, were avoidable.
The Plaintiff brings this action for personal injuries sustained by
exposure to Roundup (TM), which contains the active ingredient
glyphosate and the surfactant polyethoxylated tallow amine (POEA).
As a direct and proximate result of being exposed to Roundup, the
Plaintiff developed diffuse Non-Hodgkin's Lymphoma.
Roundup refers to all formulations of Defendant's 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, Roundup
Original 2k Herbicide, Roundup Original II Herbicide, Roundup Pro
Concentrate, Roundup Pro Dry Herbicide, and Roundup Promax.[BN]
The Plaintiffs are represented by:
Seth S. Webb, Esq.
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
MONSANTO COMPANY: Dillard Sues over Sale of Herbicide Roundup
-------------------------------------------------------------
KIMBERLY DILLARD, the Plaintiffs, v. MONSANTO COMPANY, the
Defendants, Case No. 4:19-cv-00356 (E.D. Mo., Feb. 27, 2019), seeks
to recover damages suffered by Plaintiffs, as a direct and
proximate result of the Defendant's negligent and wrongful conduct
in connection with the design, development, manufacture, testing,
packaging, promoting, marketing, advertising, distribution,
labeling, and/or sale of the herbicide Roundup (TM), containing the
active ingredient glyphosate.
The Plaintiffs maintain that Roundup (TM) and/or glyphosate is
defective, dangerous to human health, unfit and unsuitable to be
marketed and sold in commerce, and lacked proper warnings and
directions as to the dangers associated with its use. The
Plaintiff' injuries, like those striking thousands of similarly
situated victims across the country, were avoidable.
The Plaintiffs bring this action for personal injuries sustained by
exposure to Roundup (TM), which contains the active ingredient
glyphosate and the surfactant polyethoxylated tallow amine (POEA).
As a direct and proximate result of being exposed to Roundup, the
Plaintiff developed diffuse Non-Hodgkin's Lymphoma.
Roundup refers to all formulations of Defendant's 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, Roundup
Original 2k Herbicide, Roundup Original II Herbicide, Roundup Pro
Concentrate, Roundup Pro Dry Herbicide, and Roundup Promax.[BN]
The Plaintiffs are represented by:
Seth S. Webb, Esq.
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
MONSANTO COMPANY: Emeterios Sue over Sale of Herbicide Roundup
--------------------------------------------------------------
ROY EMETERIO AND DELORES EMETERIO, the Plaintiffs, v. MONSANTO
COMPANY, the Defendants, Case No. 4:19-cv-00348 (E.D. Mo., Feb. 27,
2019), seeks to recover damages suffered by Plaintiffs, as a direct
and proximate result of the Defendant's negligent and wrongful
conduct in connection with the design, development, manufacture,
testing, packaging, promoting, marketing, advertising,
distribution, labeling, and/or sale of the herbicide Roundup (TM),
containing the active ingredient glyphosate.
The Plaintiffs maintain that Roundup (TM) and/or glyphosate is
defective, dangerous to human health, unfit and unsuitable to be
marketed and sold in commerce, and lacked proper warnings and
directions as to the dangers associated with its use. The
Plaintiff' injuries, like those striking thousands of similarly
situated victims across the country, were avoidable.
The Plaintiffs bring this action for personal injuries sustained by
exposure to Roundup (TM), which contains the active ingredient
glyphosate and the surfactant polyethoxylated tallow amine (POEA).
As a direct and proximate result of being exposed to Roundup, the
Plaintiff developed diffuse Non-Hodgkin's Lymphoma.
Roundup refers to all formulations of Defendant's 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, Roundup
Original 2k Herbicide, Roundup Original II Herbicide, Roundup Pro
Concentrate, Roundup Pro Dry Herbicide, and Roundup Promax.[BN]
The Plaintiffs are represented by:
Seth S. Webb, Esq.
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
MONSANTO COMPANY: Holmeses Sue over Sale of Herbicide Roundup
-------------------------------------------------------------
BARRY HOLMES and PATRICIA HOLMES, the Plaintiffs, v. MONSANTO
COMPANY, the Defendants, Case No. 4:19-cv-00353 (E.D. Mo., Feb. 27,
2019), seeks to recover damages suffered by Plaintiffs, as a direct
and proximate result of the Defendant's negligent and wrongful
conduct in connection with the design, development, manufacture,
testing, packaging, promoting, marketing, advertising,
distribution, labeling, and/or sale of the herbicide Roundup (TM),
containing the active ingredient glyphosate.
The Plaintiffs maintain that Roundup (TM) and/or glyphosate is
defective, dangerous to human health, unfit and unsuitable to be
marketed and sold in commerce, and lacked proper warnings and
directions as to the dangers associated with its use. The
Plaintiff' injuries, like those striking thousands of similarly
situated victims across the country, were avoidable.
The Plaintiffs bring this action for personal injuries sustained by
exposure to Roundup (TM), which contains the active ingredient
glyphosate and the surfactant polyethoxylated tallow amine (POEA).
As a direct and proximate result of being exposed to Roundup, the
Plaintiff developed diffuse Non-Hodgkin's Lymphoma.
Roundup refers to all formulations of Defendant's 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, Roundup
Original 2k Herbicide, Roundup Original II Herbicide, Roundup Pro
Concentrate, Roundup Pro Dry Herbicide, and Roundup Promax.[BN]
The Plaintiffs are represented by:
Seth S. Webb, Esq.
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
MONSANTO COMPANY: Irvins Sue over Sale of Herbicide Roundup
-----------------------------------------------------------
SUSAN IRVIN AND PERRY IRVIN, the Plaintiffs, v. MONSANTO COMPANY,
the Defendants, Case No. 4:19-cv-00360 (E.D. Mo., Feb. 27, 2019),
seeks to recover damages suffered by Plaintiffs, as a direct and
proximate result of the Defendant's negligent and wrongful conduct
in connection with the design, development, manufacture, testing,
packaging, promoting, marketing, advertising, distribution,
labeling, and/or sale of the herbicide Roundup (TM), containing the
active ingredient glyphosate.
The Plaintiffs maintain that Roundup (TM) and/or glyphosate is
defective, dangerous to human health, unfit and unsuitable to be
marketed and sold in commerce, and lacked proper warnings and
directions as to the dangers associated with its use. The
Plaintiff' injuries, like those striking thousands of similarly
situated victims across the country, were avoidable.
The Plaintiffs bring this action for personal injuries sustained by
exposure to Roundup (TM), which contains the active ingredient
glyphosate and the surfactant polyethoxylated tallow amine (POEA).
As a direct and proximate result of being exposed to Roundup, the
Plaintiff developed diffuse Non-Hodgkin's Lymphoma.
Roundup refers to all formulations of Defendant's 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, Roundup
Original 2k Herbicide, Roundup Original II Herbicide, Roundup Pro
Concentrate, Roundup Pro Dry Herbicide, and Roundup Promax.[BN]
The Plaintiffs are represented by:
Seth S. Webb, Esq.
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
MONSANTO COMPANY: Jacksons Sue over Sale of Herbicide Roundup
-------------------------------------------------------------
BRUCE JACKSON AND CATALINA JACKSON, the Plaintiffs, v. MONSANTO
COMPANY, the Defendants, Case No. 4:19-cv-00334(E.D. Mo., Feb. 27,
2019), seeks to recover damages suffered by Plaintiffs, as a direct
and proximate result of the Defendant's negligent and wrongful
conduct in connection with the design, development, manufacture,
testing, packaging, promoting, marketing, advertising,
distribution, labeling, and/or sale of the herbicide Roundup (TM),
containing the active ingredient glyphosate.
The Plaintiffs maintain that Roundup (TM) and/or glyphosate is
defective, dangerous to human health, unfit and unsuitable to be
marketed and sold in commerce, and lacked proper warnings and
directions as to the dangers associated with its use. The
Plaintiff' injuries, like those striking thousands of similarly
situated victims across the country, were avoidable.
The Plaintiffs bring this action for personal injuries sustained by
exposure to Roundup (TM), which contains the active ingredient
glyphosate and the surfactant polyethoxylated tallow amine (POEA).
As a direct and proximate result of being exposed to Roundup, the
Plaintiff developed diffuse Non-Hodgkin's Lymphoma.
Roundup refers to all formulations of Defendant's 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, Roundup
Original 2k Herbicide, Roundup Original II Herbicide, Roundup Pro
Concentrate, Roundup Pro Dry Herbicide, and Roundup Promax.[BN]
The Plaintiffs are represented by:
Seth S. Webb, Esq.
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
MONSANTO COMPANY: McRight Sues over Sale of Herbicide Roundup
-------------------------------------------------------------
WILLIAM MCRIGHT, the Plaintiff, v. MONSANTO COMPANY, the
Defendants, Case No. 4:19-cv-00407-NAB (E.D. Mo., March 6, 2019),
seeks to recover damages suffered by Plaintiff, as a direct and
proximate result of the Defendant's negligent and wrongful conduct
in connection with the design, development, manufacture, testing,
packaging, promoting, marketing, advertising, distribution,
labeling, and/or sale of the herbicide Roundup (TM), containing the
active ingredient glyphosate.
The Plaintiff maintains that Roundup (TM) and/or glyphosate is
defective, dangerous to human health, unfit and unsuitable to be
marketed and sold in commerce, and lacked proper warnings and
directions as to the dangers associated with its use. The
Plaintiff's injuries, like those striking thousands of similarly
situated victims across the country, were avoidable.
The Plaintiff brings this action for personal injuries sustained by
exposure to Roundup (TM), which contains the active ingredient
glyphosate and the surfactant polyethoxylated tallow amine (POEA).
As a direct and proximate result of being exposed to Roundup, the
Plaintiff developed diffuse Non-Hodgkin's Lymphoma.
Roundup refers to all formulations of Defendant's 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, Roundup
Original 2k Herbicide, Roundup Original II Herbicide, Roundup Pro
Concentrate, Roundup Pro Dry Herbicide, and Roundup Promax.[BN]
The Plaintiff is represented by:
Kirk J. Goza, Esq.
GOZA & HONNOLD LLC.
9500 Nall Ave. Suite 400
Overland Park, KS 66207
Telephone: (913) 451-3433
Facsimile: (913) 839-0567
E-mail: kgoza@gohonlaw.com
MONSANTO COMPANY: Rice Sues over Sale of Herbicide Roundup
----------------------------------------------------------
HERBERT RICE, Personal Representative of LORI CLAY-RICE,
(deceased), the Plaintiff, v. MONSANTO COMPANY, the Defendants,
Case No. 4:19-cv-00384 (E.D. Mo., March 1, 2019), seeks to recover
damages suffered by Plaintiff, as a direct and proximate result of
the Defendant's negligent and wrongful conduct in connection with
the design, development, manufacture, testing, packaging,
promoting, marketing, advertising, distribution, labeling, and/or
sale of the herbicide Roundup (TM), containing the active
ingredient glyphosate.
The Plaintiff maintains that Roundup (TM) and/or glyphosate is
defective, dangerous to human health, unfit and unsuitable to be
marketed and sold in commerce, and lacked proper warnings and
directions as to the dangers associated with its use. The
Plaintiff's injuries, like those striking thousands of similarly
situated victims across the country, were avoidable.
The Plaintiff brings this action for personal injuries sustained by
exposure to Roundup (TM), which contains the active ingredient
glyphosate and the surfactant polyethoxylated tallow amine (POEA).
As a direct and proximate result of being exposed to Roundup, the
Plaintiff developed diffuse Non-Hodgkin's Lymphoma.
Roundup refers to all formulations of Defendant's 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, Roundup
Original 2k Herbicide, Roundup Original II Herbicide, Roundup Pro
Concentrate, Roundup Pro Dry Herbicide, and Roundup Promax.[BN]
The Plaintiffs are represented by:
Seth S. Webb, Esq.
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
MT GOX: Ex-CEO Loses Motion to Strike Class Action
--------------------------------------------------
Steve Kaaru, writing for CoinGeek, reports that a U.S. court has
ruled against a motion by Mark Karpeles to stay a lawsuit against
him. The former CEO of the now-defunct Mt. Gox had made the motion
in court, urging it to allow him enough time for an ongoing case in
Japan to be determined. According to Mr. Karpeles, the proceedings
from the case in Japan are likely to fully compensate the
plaintiffs.
The two plaintiffs, Antony Motto and Gregory Greene are former Mt
Gox clients who lost their money when the exchange went under. The
two moved to court, holding Mr. Karpeles personally liable for
their losses.
The ruling against Mr. Karpeles' motion to stay was made by Judge
Gary Feinerman of the Illinois Northern District Court. As reported
by Finance Feeds, Judge Feinerman ruled that the motion to stay and
the alternative to strike class allegations was "granted in part
and denied without prejudice in part."
Mr. Karpeles had sought to have the court stay the case so as to
save the court from using unnecessary resources and to eliminate
unnecessary legal expenses. He argued that upon the conclusion of
the proceedings in the Tokyo court, the plaintiffs would receive
compensation. Mt Gox recovering some of the lost crypto and the
consequent rise in the market were some of the two factors his
motion hinged on.
In the alternative, he had moved that the court strike the class
action lawsuit, claiming it wasn't the best way to litigate the
issue.
The embattled Mr. Karpeles also faces criminal charges in Japan
according to a report by a Japanese media outlet. Prosecutors at
the Tokyo District Court accused Mr. Karpeles of embezzling
customers' funds for his personal use in the midst of the infamous
2011 hack. According to the report, Mr. Karpeles used some of the
proceeds to invest in a software development venture and the rest
for personal use.
Mr. Karpeles also faces charges of data manipulation on the Mt Gox
trading system. He also reportedly fabricated customers' balances,
a charge he has vehemently denied.
Since filing for liquidation in 2014 after losing 850,000 Bitcoin
Core (BTC) tokens, Mt. Gox has been involved in endless court
battles with its former customers. At the time, the BTC tokens were
collectively worth $480 million. A report later emerged claiming
that the exchange, which was once the largest in the world, had
recovered some of the BTC.
Note: Tokens on the Bitcoin Core (SegWit) chain are referenced as
BTC coins; tokens on the Bitcoin Cash ABC chain are referenced as
BCH, BCH-ABC or BAB coins.
Bitcoin Satoshi Vision (BSV) is today the only Bitcoin project that
follows the original Satoshi Nakamoto whitepaper, and that follows
the original Satoshi protocol and design. BSV is the only public
blockchain that maintains the original vision for Bitcoin and will
massively scale to become the world's new money and enterprise
blockchain. [GN]
NATIONAL CREDIT: June 28 Filing Due of Dipositional Docs in Cortes
------------------------------------------------------------------
In the case, MIKE CORTES, on Behalf of Himself and all Others
Similarly Situated, Plaintiff, v. NATIONAL CREDIT ADJUSTERS,
L.L.C., Defendant, Case No. 2:16-cv-00823-MCE-EFB (E.D. Cal.),
Judge Morrison C. England, Jr. of the U.S. District Court for the
Eastern District of California extended the Parties' deadline to
file dispositional papers pursuant to Local Rule 160 to June 28,
2019.
On Jan. 18, 2019, the Parties participated in a mediation with
Martin Quinn, Esq., at JAMS in San Francisco, California. On Feb.
5, 2019, they executed a binding Term Sheet setting out an
agreement to settle all claims in the action on a class basis. On
Feb. 6, 2019, upon stipulation of the Parties and notice of the
settlement, the Court vacated all remaining pretrial deadlines and
ordered the Parties to file dispositional papers pursuant to Local
Rule 160 by Feb. 28, 2019.
The Parties are still working on drafting the full class settlement
agreement (along with all of the relevant exhibits thereto, i.e.,
long form and short-form notice documents, proposed final approval
and judgment orders, etc.). Once the full class settlement
agreement is executed, the Plaintiff intends to file a motion for
preliminary approval of the settlement and provide the Court with a
copy of the executed class settlement agreement at that time.
Due to the extensive time needed to draft (and negotiate) the full
class action settlement agreement and the motion for preliminary
approval, the Parties anticipate that they will be able to execute
the class action settlement agreement and that the Plaintiff will
be able to file a motion for preliminary approval within 120 days
of the filing. Therefore, they stipulated and agreed, and Judge
England granted, that the Parties' deadline to file dispositional
papers pursuant to Local Rule 160 will be extended to June 28,
2019.
A full-text copy of the Court's March 5, 2019 Order is available at
https://is.gd/mvbRJ3 from Leagle.com.
Mike Cortes, Plaintiff, represented by Yeremey Olegovich Krivoshey
-- ykrivoshey@bursor.com -- Bursor & Fisher, P.A.
National Credit Adjusters, L.L.C., Defendant, represented by Debbie
P. Kirkpatrick -- dkirkpatrick@sessions.legal -- Sesions Fishman
Nathan & Israel, LLP & James Kevin Schultz --
jschultz@sessions.legal -- Sessions Fishman Nathan & Israel, LLP.
NATIONAL GENERAL: Suit over Wells Fargo Insurance Program Pending
-----------------------------------------------------------------
National General Holdings Corp. said in its Form 10-K report filed
with the U.S. Securities and Exchange Commission on February 25,
2019, for the fiscal year ended December 31, 2018, that the company
continues to defend a consolidated multi-district class action
litigation in the United States District Court for the Central
District of California.
The Company is a defendant in a consolidated multi-district class
action litigation in the United States District Court for the
Central District of California alleging improper practices in the
placement of insurance in the historical and no longer existing
collateral protection insurance program for Wells Fargo.
National General said, "Management believes that the Company's
actions were, at all times, in compliance with applicable
requirements and that the Company has a meritorious defense in the
litigation. Management estimates the probable net pre-tax impact to
the Company to resolve this matter is $10,000."
National General Holdings Corp., a specialty personal lines
insurance holding company, provides various insurance products and
services in the United States, Bermuda, Luxembourg, and Sweden. The
company was formerly known as American Capital Acquisition
Corporation. National General Holdings Corp. was founded in 1939
and is headquartered in New York, New York.
NETGEAR INC: 4 Securities Class Action Filed in California
----------------------------------------------------------
Netgear Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on February 22, 2019, for the
fiscal year ended December 31, 2018, that the company has been
named as defendant in four securities class action lawsuits
entitled, John Pham v. Arlo Technologies, Inc., NETGEAR Inc., et
al., Chirag Patel v. Arlo Technologies, Inc., NETGEAR, Inc., et
al., Athanasios Perros v. NETGEAR, Inc., et al., and Ashot
Vardanian et al. v. Arlo Technologies, Inc., NETGEAR, Inc., et al.
On January 9, 2019 and January 10, 2019, February 1, 2019 and
February 8, 2019, the Company was sued in four separate securities
class action suits in Superior Court of California, County of Santa
Clara, along with Arlo Technologies, individuals, and underwriters
involved in the spin-off of Arlo.
All four complaints allege violations of the Securities Act of 1933
based on statements made in the Registration Statement filed with
the Securities and Exchange Commission (SEC).
Netgear said, "It is too early to reasonably estimate any financial
impact to the Company resulting from this litigation matter."
Netgear Inc. designs, develops and markets networking products for
home users and small businesses worldwide. The company, based in
Santa Clara, Calif., was founded in 1996.
NEW ENGLAND MOTOR: Workers' WARN Class Action Settled
-----------------------------------------------------
Michael Catarevas, writing for FleetOwner, reports that drivers and
other employees of bankrupt less-than-truckload carrier New England
Motor Freight (NEMF) have accepted a negotiated package that
includes higher severance pay, according to an attorney
representing the workers.
Charles A. Ercole, a Philadelphia-based attorney at Klehr Harrison
Harvey Branzburg, told Fleet Owner in an exclusive interview and
follow-up e-mail the company's decision to settle and avoid a
drawn-out legal process was right for both sides.
Elizabeth, NJ-based NEMF, which employed more than 1,700 drivers,
ceased operations and filed for Chapter 11 bankruptcy on Feb. 11.
The privately held firm was founded in 1977 and served the
northeastern United States and parts of Canada.
Its parent company is the Shevell Group, which ranks No. 80 on the
2019 Fleet Owner For-Hire 500 listing. The company's vice president
is Nancy Shevell, wife of Paul McCartney.
Workers filed a class-action lawsuit against NEMF, claiming the
company's acted in violation of the Worker Adjustment and
Retraining Notification (WARN) Act, which requires employers with
100 or more employees to give 60 calendar-days-notice of plant
closings and mass layoffs.
"On Friday (March 1), federal bankruptcy Judge John K. Sherwood
approved a severance package for 2,500 employees of New England
Motor Freight who were laid off without notice when the company
filed bankruptcy in mid-February," said Mr. Ercole.
"Because of our WARN Act lawsuit, the severance package was
increased at the last minute by 20 percent ($2.7 million) so that
each employee will basically receive an additional week's pay --
meaning that every full-time employee (union and non-union) will
get 8 weeks of fully paid health care benefits and at least 14.5
day's pay (and up to five weeks pay if employees had unused
vacation and paid time off greater than two weeks)."
Mr. Ercole said an earlier package negotiated by the union was not
satisfactory. As a result, the law firm was retained by more than
500 NEMF workers.
The negotiations took place over several days and were not very
contentious, said Mr. Ercole, because both sides wanted it settled
Mr. quickly. Mr. Ercole said the agreement is for the most part a
win for the workers.
"Feedback is very positive," he concluded. "One of the reasons we
did it is because these cases can go on for years. Now people will
get money immediately, when they need it the most, right now. [GN]
NIKE INC: Loses Bid to Scale Back Gender Bias Class Action
----------------------------------------------------------
Peter Blumberg, writing for Bloomberg News, reports that Nike Inc.
lost its first attempt to scale back a class-action lawsuit
accusing the athletic apparel giant of systematic pay
discrimination against female employees.
The company sought to block the four women who sued in August from
proceeding collectively on behalf of other employees, but a federal
magistrate judge said it's too early to limit who's covered by the
case. The magistrate's findings will be reviewed by a district
judge.
The four former employees alleged that Nike mistreats women by
relying on their salary history in setting their starting pay,
marginalizing their performance to stifle their career growth, and
largely ignoring sexual harassment. A lawyer for the plaintiffs
said when the case was first filed that if it clears the difficult
hurdle of attaining class-action status, she expects at least 500
more women to join.
Last year, Nike announced that in the wake of a review of its pay
structure, including pay equity, it was increasing the salaries of
about 7,400 workers worldwide.
A spokesman for Nike declined to comment.
The case is Cahill v. Nike Inc., 3:18-cv-01477, U.S. District
Court, District of Oregon. [GN]
NIO INC: Sidoli Says Vehicle Sales & Revenues Report Misleading
---------------------------------------------------------------
The case, MARK SIDOLI, on behalf of himself and all others
similarly situated, the Plaintiff, vs. NIO INC., BIN "WILLIAM" LI,
and LOUIS T. HSIEH a/k/a TUNG-JUNG HSIEH, the Defendants, Case No.
3:19-cv-01320-WHO (N.D. Cal., March 12, 2019), is a securities
fraud action brought under Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934 and Rule 10b-5 promulgated
thereunder by the Securities Exchange Commission commenced by the
Plaintiff on behalf of all persons and entities who purchased the
publicly traded ADSs of Nio from January 10, 2019 through March 5,
2019, inclusive.
Nio designs, manufactures and sells electric vehicles in the
People's Republic of China, the U.S., Germany and the U.K. The
Company reportedly has been compared to Tesla Inc.
The Company launched its first volume manufactured electric
vehicle, the seven-seater "ES8," in December 2017 and started
delivering vehicles to customers in June 2018. The ES8 is an
all-aluminum alloy body, premium electric SUV that Nio states
offers exceptional performance, functionality and mobility
lifestyle.
In September 2018, Neo became the first Chinese all-electric car
company to debut on the New York Stock Exchange. On September 11,
2018, Nio closed its initial public offering of 160 million ADSs at
an offering price of $6.26 per ADS, raising over $1 billion. The
Company estimated that it would receive net proceeds of
approximately $955 million from the offering.
In December 2018, the Company launched a five-seater ES6, with
delivery expected to begin in late March 2019, and a six-seater
version of the ES8. During the Class Period, Defendants represented
that sales of Nio's ES8 were significantly growing, reaching 11,348
vehicles for the year ended December 31, 2018, and that the Company
experienced "solid ramp-up in production and delivery in 2018,
which demonstrated our 6 execution capabilities," and represented
that demand for the ES8 and ES6 was strong.
In the third quarter of 2018, the Company delivered 3,268 ES8s. In
the fourth quarter of 2018, Nio delivered 7,980 ES8s, representing
growth of over 144% in ES8 deliveries. However, unknown to
investors, by the beginning of the Class Period, demand for Nio's
vehicles was materially declining and the Company was experiencing
material adverse trends that were negatively affecting the
Company's sales and revenue.
Defendants' representations through the Class Period caused Nio
ADSs to trade at artificially inflated prices. On January 29, 2019,
after the close of trading, the Company filed a report with the SEC
on Form 6-K that contained "Management's Discussion and Analysis of
Financial Condition and Results of Operations" that repeated the
Company's sales through December 31, 2018 and disclosed a proposed
offering of $650 million in convertible senior notes.
According to UBS, on a conference call on January 30, 2019 to
discuss the proposed issuance of $650 million in convertible notes,
Nio's management reassured investors that demand was strong for the
ES8 and ES6 and that any change in Chinese government subsidies
would have "much less impact" on Nio because premium car buyers are
less price sensitive and that Nio management "expects demand to be
resilient." In other words, Nio represented that even if the
Chinese government lowered or eliminated electric car subsidies,
demand would remain strong for its vehicles.
On January 30, 2019, Nio ADS increased from a closing price of
$6.94 per ADS on January 29, 2019, to close at $7.46 per ADS on
January 30, 2019, an increase of $0.52 per ADS or approximately 8%
on heavier than usual volume of over 28 million ADSs.
On February 4, 2019, the Company disclosed the closing of the $650
million convertible senior notes offering. On February 24, a
segment aired on 60 Minutes concerning Nio. The Defendant Li
represented that Nio exceeded its goal of delivering 10,000 cars in
2018 and was ramping up production.
On February 25, 2019, the following trading day, Nio ADSs increased
from a close on February 22, 2019 of $8.17 per ADS, to close at $9
per ADS on February 25, 2019, an increase of over 10% on very heavy
volume of over 52 million ADSs.
Then, just nine days later, on March 5, 2019, after the close of
the market, Nio disclosed its fourth quarter and full year ended
December 31, 2018 financial results. Defendants shocked investors
when they disclosed that for January 2019, the Company delivered
1,805 ES8s, a decline of over 45% from December 2018, and for
February 2019, the Company delivered 811 ES8s, a decline of over
55% from January 2019 deliveries. Further, the Company stated that
it expected between 3500 and 3800 ES8 sales for the quarter ending
March 31, 2019 -- just 884-1184 sales in March 2019, representing a
decline of over 52% over fourth quarter 2018 sales.
Defendant Li's representations were materially false and misleading
because he failed to disclose that Nio's deliveries of ES8s during
January and February 2019 materially declined, that the negative
trends would continue to negatively affect the Company's vehicle
sales and revenues through the second quarter of 2019, and that the
Company's "made-to-order" model of business had experienced
material manufacturing difficulties for at least six months, the
lawsuit says.[BN]
Attorneys for the Plaintiff:
Laurence D. King, Esq.
Mario M. Choi, Esq.
KAPLAN FOX & KILSHEIMER LLP
350 Sansome Street, Suite 400
San Francisco, CA 94104
Telephone: (415) 772-4700
Facsimile: (415) 772-4709
E-mail: lking@kaplanfox.com
mchoi@kaplanfox.com
- and -
Robert N. Kaplan, Esq.
Jeffrey P. Campisi, Esq.
KAPLAN FOX & KILSHEIMER LLP
850 Third Avenue, 14th Floor
New York, NY 10022
Telephone: (212) 687-1980
Facsimile: (212) 687-7714
E-mail: rkaplan@kaplanfox.com
jcampisi@kaplanfox.com
NISSAN MOTOR: Robins Geller Tapped as Class Action Lead Counsel
---------------------------------------------------------------
Law360 reports that Robbins Geller Rudman & Dowd LLP has been
tapped as lead counsel for a Michigan pension fund and plaintiffs
in a proposed class action stemming from ex-Nissan Motor Co.
chairman pay scandal. [GN]
NORTHCENTRAL PIZZA: Gonzalez Files Class Action in Ca. Super. Ct.
-----------------------------------------------------------------
A class action lawsuit has been filed against Northcentral Pizza
LLC. The case is styled as Maria Gonzalez, on behalf of all others
similarly situated, Plaintiff v. Northcentral Pizza LLC, Mejet
Management Inc and Does 1-100, Defendants, Case No.
34-2019-00252018-CU-OE-GDS (Cal. Super. Ct., Sacramento Cty., March
7, 2019).
The docket of the lawsuit states the case type as other
employment.
Northcentral Pizza, LLC is in the Pizza Restaurants business.[BN]
The Plaintiff is represented by:
Galen T. Shimoda, Esq.
Shimoda Law Corp
9401 East Stockton Boulevard, Suite 200
Elk Grove, CA 95624
Tel: 916-525-0716
NORTHERN CALIFORNIA: Filing of 1st Amended Osegeuda Suit Allowed
----------------------------------------------------------------
In the case, JOSEPH OSEGUEDA, individually and on behalf of all
similarly situated and/or aggrieved employees of Defendants in the
State of California, Plaintiff, v. NORTHERN CALIFORNIA INALLIANCE;
and DOES 1 THROUGH 50, inclusive, Defendants, Case No.
2:18-cv-00835-WBS-EFB (E.D. Cal.), Judge William B. Shubb of the
U.S. District Court for the Eastern District of California granted
the Plaintiff leave to file a First Amended Complaint.
on Feb. 22, 2018, the Plaintiff, on behalf of himself and others
purportedly similarly situated, filed the individual, class action,
PAGA representative action, and collective action against the
Defendant, alleging the following 11 causes of action: (1) failure
to provide meal periods; (2) failure to provide rest periods; (3)
failure to pay minimum and regular wages; (4) failure to pay all
overtime wages; (5) failure to provide required sick leave; (6)
failure to indemnify necessary business expenses; (7) failure to
provide accurate itemized wage statements and written notice of
sick leave; (8) failure to timely pay all wages due upon separation
of employment; (9) violation of Business & Professions Code section
17200, et seq.; (10) violation of the Private Attorneys General
Act; and (11) violation of the Fair Labor Standards Act.
The Plaintiff wishes to amend the Complaint to dismiss without
prejudice the first, second, and fifth causes of action and
allegations in support thereof. The Defendant has reviewed the
Plaintiff's proposed First Amended Complaint and agrees, in the
interests of efficiency, to stipulate to permit the Plaintiff to
file the First Amended Complaint without the need to file a motion
for leave to amend.
The Parties agree that, in entering into the Stipulation, the
Defendant does not waive its right to contest the Plaintiff's First
Amended Complaint in any way, nor does it waive any defense
permissible under the law.
The Parties, by and through their counsel of record, stipulated,
and Judge Shubb granted, that the Plaintiff be granted leave to
file a First Amended Complaint. The Plaintiff will file the First
Amended Complaint within 10 days of the date of the Order.
A full-text copy of the Court's March 1, 2019 Stipulated Order is
available at https://is.gd/Al8ZE2 from Leagle.com.
Joseph Osegueda, Plaintiff, represented by Nicole Rachelle Roysdon,
GrahamHollis, APC, Graham S.P. Hollis, GrahamHollis, APC & Vilmarie
Cordero, Graham Hollis A.P.C.
Northern California Inalliance, Defendant, represented by Matthew
Charles Jaime -- mjaime@mathenysears.com -- Matheny Sears Linkert
and Jaime LLP & Robert W. Sweetin -- rsweetin@mathenysears.com --
Matheny Sears Linkert & Jaime LLP.
NORTHUP GRUMAN: Among Defendants in Tax Privacy Class Action
------------------------------------------------------------
Daniel Seiden, writing for Bloomberg Law, reports that defense
contractors stationed at an intelligence base in Australia
fraudulently misled American employees as to their potential tax
liability in order to coerce them into signing away privacy rights,
according to a class action complaint.
Northrop Grumman, AECOM, General Dynamics, and Raytheon Co.
convinced the employees to sign documents waiving their right to
keep personal tax information private after misinforming them that
the failure to sign would subject their paychecks to being taxed by
Australia. [GN]
OBALON THERAPEUTICS: Hearing on Bid to Dismiss Set for April 11
---------------------------------------------------------------
Obalon Therapeutics, Inc. said in its Form 10-K report filed with
the U.S. Securities and Exchange Commission on February 22, 2019,
for the fiscal year ended December 31, 2018, that the court has
scheduled a hearing for April 11, 2019, on the motion to dismiss
filed in the consolidated Hustig v. Obalon Therapeutics, Inc., et
al., Case No. 3:18-cv-00352-AJB-WVG, and Cook v. Obalon
Therapeutics, Inc. et al., Case No. 3:18-cv-00407-CAB-RBB suits.
On February 14 and 22, 2018, plaintiff stockholders filed class
action lawsuits against the Company and certain of its executive
officers in the United States District Court for the Southern
District of California (Hustig v. Obalon Therapeutics, Inc., et
al., Case No. 3:18-cv-00352-AJB-WVG, and Cook v. Obalon
Therapeutics, Inc. et al., Case No. 3:18-cv-00407-CAB-RBB). On July
24, 2018, the court appointed Inter-Local Pension Fund GCC/IBT as
lead plaintiff.
On October 5, 2018, plaintiffs filed an amended complaint. The
amended complaint alleges that the Company and certain of its
executive officers made false and misleading statements and failed
to disclose material adverse facts about its business, operations,
and prospects in violation of Sections 10(b) (and Rule 10b-5
promulgated thereunder) and 20(a) of the Exchange Act. The amended
complaint also alleges violations of Section 11 of the Exchange Act
arising out of the Company's initial public offering. The
plaintiffs seek damages, interest, costs, attorneys' fees, and
other unspecified equitable relief.
The underwriters from the company's initial public offering have
also been named as defendants in this case and the company have
certain obligations under the underwriting agreement to indemnify
them for their costs and expenses incurred in connection with this
litigation. The Company believes the complaint is without merit,
and on December 4, 2018, the Company moved to dismiss the amended
complaint.
The court has scheduled a hearing for April 11, 2019 on the motion
to dismiss.
Obalon Therapeutics, Inc., a vertically integrated medical device
company, focuses on developing and commercializing medical devices
to treat people who are obese and overweight. The company offers
the Obalon balloon system designed to provide weight loss in obese
patients. Obalon Therapeutics, Inc. was founded in 2008 and is
headquartered in Carlsbad, California.
OHIO NATIONAL: Faces Lawsuits Over Brokers' Trail Commissions
-------------------------------------------------------------
Greg Land, writing for Law.com, reports that Ohio National Life
Insurance Co. is weathering a legal storm after announcing late
last year that it will no longer pay ongoing "trail" commissions to
brokers and advisers who sold and serviced its variable annuities
from 2012 through 2018.
At least 10 lawsuits have been filed in federal courthouses around
the country since the insurer and its affiliates curtailed the
payments to tens of thousands of brokers and stopped selling the
annuities.
According to court filings, Ohio National and its subsidiaries sold
more than $10 billion in new variable annuities between those
years, with between 50,000 and 75,000 independent broker-dealers
being paid regular commissions until the insurer unilaterally
terminated its contracts with them last year.
The lawsuits claim Ohio National breached agreements under which
the brokers were guaranteed to receive trail commissions until the
annuities were surrendered or annuitized -- i.e. converted into
fixed, regular payments by the purchaser.
Ohio National declined to comment, but it has raised a simple
defense in one early motion for summary judgment: The payments were
only to be made while the selling contracts were in force. Once the
contracts were terminated, the insurer no longer had any obligation
to honor them.
The tide of litigation began in September when Ohio National sent
"termination letters" to broker-dealers saying it was cancelling
their contracts to sell variable annuities and would no longer pay
the commissions on existing annuities effective Dec. 12.
In one of the first lawsuits, Texas broker Lance Browning filed a
putative class action in Ohio's Southern District on Nov. 6
asserting that the cancellation of his commissions would cost him
nearly $90,000 a year on existing annuities he sold.
Two days later, Arkansas-based financial brokerage and financial
advisory firm Veritas Independent Partners filed another putative
class action in Ohio's Southern District. Since then, other
broker-dealers have filed complaints in Alabama, California,
Indiana, Massachusetts, Minnesota, Mississippi, New Jersey and
Texas.
They name Ohio National Life insurance, Ohio National Life
Assurance Corp., Ohio National Equities Inc. and Ohio National
Financial Services Inc. as defendants.
The contracts at issue involved annuities with a "Guaranteed
Minimum Income Monthly Benefit Rider," which promise a monthly
retirement payment regardless of how well the underlying
investments perform.
The brokers and dealers were offered several options for what
percentage of their commissions they would take up front and how
much would be paid in an ongoing trailing commission. According to
selling agreements cited in the cases, the trailing commissions
were to be paid "until the contract is surrendered or annuitized."
But, in the words of the Veritas complaint, the insurer "concluded
the pool of Ohio National's GMIB Annuity Contracts were
unprofitable," and that it was in its best interest to exit as many
as possible.
Where it could not do so, "Ohio National decided to eliminate
paying commission obligations" regardless of its contracts with the
brokers and dealers, Veritas claims.
The insurer's parent company, Ohio National Financial Services, may
have been under some financial pressure at the time of the
decision: In September, both Moody's and Standard & Poor's
downgraded the insurer's credit rating outlook to "negative,"
although both remain relatively strong at A and A2, respectively.
Ohio National announced that same month it would "exclusively focus
on growing its life and disability income insurance product lines
going forward," citing a "continuously changing regulatory
landscape, the sustained low interest rate environment, and the
increasing cost of doing business, as well as growth opportunities
and the company's competitive strengths."
In October, it promoted senior vice president Rocky Coppola to
chief financial officer, and in November elevated former vice
chairman and chief administrative officer Barbara Turner to new
president and COO.
In a November article for ALM publication ThinkAdvisor,
broker-dealer adviser Jon Henschen wrote that "Ohio National's
$24.9 billion worth of variable annuity contracts equates to 59
percent of its total assets" and, like other insurers, "is under
financial duress due to offering overly generous guarantees in the
[variable annuity] contracts it sold in years past."
In a motion for summary judgment in the Veritas litigation, Ohio
National pointed to language in the selling agreement noting that
it "remains in force and will be paid on a particular contract
[individual annuity] until the contract is surrendered."
"Such language unequivocally establishes that the termination of
the selling Agreement also terminated any obligation of the [Ohio
National] contracting parties to continue paying trail commissions
as to individual variable annuity products," said the Jan. 21
motion, filed by Marion Little and Christopher Hogan of Columbus'
Zeiger, Tigges & Little.
The agreement contained a provision allowing it to be terminated
"at the option of any party upon 60 days written notice to the
other parties," it said, which was met by the Sept. 21 termination
letters.
The Veritas litigation was filed by James Hadden, Geoffrey Moul,
Brian Murphy and Joseph Murray of Columbus' Murray Murphy Moul &
Basil, who did not respond to a request for comment.
In the Browning case, Ohio National filed for judgment on the
pleadings, arguing the plaintiff was not a party to agreement
between the insurer and the company he was under contract with,
meaning has no standing to bring a claim.
The Browning case was filed by David Meyer, Matthew Wilson, John
Camillus and Michael Boyle Jr. of Meyer Wilson's Columbus office,
and Dennis Concilla of Carlile Patchen & Murphy, also in Columbus.
Mr. Concilla said he reviewed several of the selling agreements
Ohio National had with its broker-dealers, and that -- while there
are differences among them -- "they all basically say, 'Here's our
product, you're going to sell it, we'll pay you commissions and our
obligation to pay extends beyond the life of the contract.'"
Some of the agreements contain a provision reserving Ohio
National's right to change the commission rate, which he said is
not unusual. But the agreements did not give Ohio National the
right to simply stop paying the commissions and keep the money.
Mr. Concilla noted that the broker-dealers were offered the option
of taking a larger up-front lump commission and smaller trailing
commissions, or bigger commissions over the life of the annuity.
Mr. Concilla added it made no sense for any of them to selected the
latter if there were the possibility of the insurer simply cutting
them off.
Mr. Concilla said the lawyers in the various cases have been in
contact, but there has been no discussion on consolidating the
litigation.
Mr. Concilla said that Ohio National was not alone in getting out
of the annuity business.
"Other companies are no longer offering them," he said. "But none
have told their broker-dealers, 'we're no longer going to pay you
for the products you sold.'"
Ohio National preceded its termination program by repeatedly
pressuring annuity holders to cash them out and invest in other
options, Mr. Concilla said.
"I knew about it early because I own some of these contracts," he
said.
Mr. Concilla said he bought the annuities when he heard that he
could get a guaranteed 6 percent annual return on his investment
with a higher percentage if the market went up, but that the rate
of return would stay the same even if the market dipped.
"I thought it was a good addition to my portfolio," he said.
Once Ohio National decided to get out of the annuities business, he
said the insurer sent him several letters urging him to dump them
in favor of another investment option, which he declined to do.
"I think [Ohio National] finally realized it wasn't a good deal for
them, but it was a good deal for the buyers," he said. [GN]
ORACLE CORP: Averts Class Action Over 401(k) Plan Fees
------------------------------------------------------
Jacklyn Wille, writing for Bloomberg Law, reports that Oracle Corp.
defeated a class action challenge to the 401(k) plan record-keeping
fees it paid to Fidelity, but two challenges to individual
investment options remain for trial.
The investors in Oracle's $12 billion 401(k) plan couldn't show the
company acted imprudently with respect to the record-keeping fees
they claimed were excessive, Judge Robert E. Blackburn of the U.S.
District Court for the District of Colorado held. [GN]
ORACLE CORP: Summary Judgement Bid in Troudt ERISA Suit Partly OK'd
-------------------------------------------------------------------
In the case, DEBORAH TROUDT, et al., individually and as
representatives of a class of plan participants, on behalf of the
Oracle Corporation 401(k) Savings and Investment Plan, Plaintiffs,
v. ORACLE CORPORATION, et al., Defendants, Civil Action No.
16-cv-00175-REB-SKC (D. Colo.), Judge Robert E. Backburn of the
U.S. District Court for the District of Colorado granted in part
and denied in part the Defendants' Motion for Summary Judgment
filed on April 16, 2018.
The Plaintiffs, individually and as representatives of other
participants in the Oracle Corporation 401(k) Savings and
Investment Plan, allege the Defendants breached their fiduciary
duties in the management of the Plan, in violation of the Employee
Retirement Income Security Act of 1974 ("ERISA").
The Plan is one of the largest in the country, with more than
65,000 participants and over $12 billion in assets. As a defined
contribution plan, the Plan allows participants to contribute up to
40% of their compensation to the Plan, which Oracle matches. The
Plan currently offers some 30 different investment options.
Oracle is a named fiduciary of the Plan and a Plan administrator.
Defendant Oracle Corporation 401(k) Committee, composed of Oracle
employees (the individually named Defendants in the suit), is also
a Plan fiduciary. In addition to its other duties, the Committee
both monitors the fees paid to Fidelity Management Trust Co., the
designated recordkeeper and trustee for the Plan, and guides the
selection, monitoring, and removal and replacement of Plan
investments. Those decisions are informed by an Investment Policy
Statement ("IPS") and assisted by an independent consultant, Mercer
Investment Counseling, which assists the Committee in monitoring
and managing the Plan's investment options and costs.
Before addressing the substance of the Plaintiffs' claims, Judge
Backburn first address their evidentiary objections to certain
evidence submitted in support of the summary judgment motion and
consider the Defendants' statute of limitations arguments.
He overrules the Plaintiffs' objections and will consider the
documents if and where appropriate. He finds that the Plaintiffs
objections based on hearsay and lack of foundation are wholly
conclusory and completely undeveloped. He is neither required nor
inclined to guess at the substance of such arguments. Similarly,
the Plaintiffs' attempt to substantiate their arguments by way of
their reply creates no inclination or obligation on my part to
address them.
He also finds that ERISA's statute of repose is applied properly to
limit the Plaintiffs' claims to matters occurring on or after Jan.
22, 2010, six years prior to the date the complaint was filed. The
Defendants' motion for summary judgment is granted to that extent.
The class definitions approved in his Order Re: Plaintiffs' Motion
for Class Certification will be amended to reflect the limitation.
The Judge now turns to the specific claims asserted in the matter.
As to Count I, he finds that the Plaintiffs have no evidence to
suggest that the Defendants' alleged lack of prudence caused losses
to the Plan. Absent such proof, these aspects of their breach of
fiduciary duty claim would fail even if the evidence substantiated
an actual lack of prudence on the Defendants' part, which it does
not. Accordingly, the Defendants are entitled to summary judgment
on this aspect of Count I.
Assuming arguendo Mr. Geist's opinion on the matter is sufficient
to create a genuine dispute of material fact as to liability,
without his further opinion that less costly alternatives were
available, the Judge finds that the Plaintiffs have no evidence
that the Plan could have paid less for recordkeeping services than
it did, and therefore that it suffered compensable losses. Without
such evidence of damages, the claim also must fail. The
Defendants' motion will be granted as to this aspect of Count I as
well.
Although the sales team's efforts occasionally led to requests for
information from the Plan, there is absolutely no evidence of any
directives, suspect or otherwise, flowing back from the sales team
or senior management to the Plan. At best, the Plaintiffs can say
only that Committee members were "aware" of Oracle and Fidelity's
business relationship. To draw any further, more sinister,
conclusion would be nothing more than rank speculation, and is
therefore insufficient to create a genuine dispute fo material fact
for trial. Summary judgment is appropriate as to this final
iteration of Count I as well.
As to Count II, the Judge finds that the Plaintiffs have failed to
establish individual standing by asserting a direct injury, either
for themselves individually or for the class as a whole. Indeed,
the Plaintiffs essentially concede this argument by failing to
address it at all in response to the motion for summary judgment.
He therefore grants the motion insofar as it implicates the PIMCO
Fund.
Next, he grants the motion for summary judgment as to Count II
insofar as it implicates the initial decision to include the TCM
Fund in the Plan. The motion as to this count is denied as to
allegations implicating the Artisan Fund and the decision to retain
the TCM Fund.
Counts III and IV are derivative of the first two counts. In Count
III, the Plaintiffs allege Oracle failed to adequately monitor the
actions of other plan fiduciaries, by (1) failing to ensure the
Committee employed a prudent process for evaluating the Plan's
recordkeeping fees; and (2) failing to recognize the breach of
fiduciary duty caused by the selection and retention of
poor-performing investment options. Count IV contends that by
engaging Fidelity for unreasonable compensation and offering
imprudent investments, defendants caused the Plan to directly or
indirectly furnish services to a party in interest, in violation of
29 U.S.C. Section 1006(a)(1)(C), and/or to transfer Plan assets to
a party in interest, in violation of 29 U.S.C. Section
1106(a)(1)(D).
Insofar as Count III is based on the allegedly imprudent investment
in the Artisan Fund and the allegedly imprudent retention of the
TCM Fund, the Judge finds that the Defendants argue only that the
claim fails for the same reasons as its substantive counterpart in
Count II. As he has denied summary judgment as to these aspects of
Count II, this argument is moot. The motion therefore will be
denied as to Count III to the extent that claim is based on the
investment in the Artisan Fund and the non-time-barred aspects the
claim implicating the TCM Fund.
Finally, the Judge finds that the Plaintiffs fail to address, much
less explain, how any Plan fiduciary engaged in a prohibited
transaction with respect to the decisions to retain the Artisan
Fund or the TCM Fund. There is no evidence suggesting that
Fidelity was involved with either of those decisions or has control
of or interests in those funds. The funds themselves are not
parties in interest under ERISA. Because the Plaintiffs have
failed to raise a genuine dispute of material fact, he grants the
Defendants' motion for summary judgment as to this claim.
Judge Backburn granted in part and denied in part the Defendants'
motion for summary judgment. Based on those rulings, he perceives
the claims remaining for determination at trial are (1) the
allegedly imprudent investment in the Artisan Fund (Count II); (2)
the allegedly imprudent retention of the TCM Fund (Count II); (3)
the alleged failure to monitor the breach of fiduciary duty in the
retention of these two allegedly imprudent investments. All other
claims in the suit are dismissed with prejudice.
He granted the motion is granted with respect to the following
claims: (1) Count I; (2) Count II insofar as it is based on the
allegedly imprudent investments in the PIMCO Fund and the decision
to include the TCM Fund in the Plan; (3) Count III insofar as it is
based on the allegations of Count I and on the allegedly imprudent
investment in the PIMCO Fund and the decision to include the TCM
Fund in the Plan alleged in Count II; and (4) Count IV. He denied
the motion in all other respects.
He dismissed with prejudice the following claims: (a) Count I; (b)
Count II insofar as it is based on the allegedly imprudent
investments in the PIMCO Fund and the decision to include TCM Fund;
(c) Count III insofar as it is based on the allegations of Count I
and on the allegedly imprudent investments in the PIMCO Fund and
the decision to include the TCM Fund in the Plan alleged in Count
II; and (d) Count IV.
At the time judgment enters, judgment with prejudice will enter on
behalf of the Defendants, Oracle Corp.; Oracle Corporation 401(k)
Committee; Gayle Fitzpatrick; John Gawkowski; Dan Sharpley; Peter
Shott; Mark Sunday; and Amit Zavery, and against plaintiffs,
Deborah Troudt; Brad Stauf; Susan Cutsforth; Wayne Seltzer; Michael
Harkin; Miriam Wagner; and Michael Foy, individually and as
epresentatives of a class of plan participants, on behalf of the
Oracle Corporation 401(k) Savings and Investment Plan, as to the
following claims: (a) Count I; (b) Count II insofar as it is based
on the allegedly imprudent investments in the PIMCO Fund and the
decision to include the TCM Fund in the Plan; (c) Count III insofar
as it is based on the allegations of Count I and on the allegedly
imprudent investments in the PIMCO Fund and the decision to include
the TCM Fund alleged in Count II; and (d) Count IV.
His Order Re: Plaintiffs' Motion for Class Certification, filed
Jan. 30, 2018, is amended as follows:
a. The certification of the Excessive Fee Class is vacated;
b. The definitions of the Imprudent Investment Class A
(Artisan Fund) and the Imprudent Investment Class B (TCM Fund) are
amended, as follows:
(1) Imprudent Investment Class A (Artisan Fund): All Plan
participants and beneficiaries, excluding the Defendants, who
invested in the Artisan Fund between Jan. 22, 2010, and June 22,
2015, and whose investment in the Fund underperformed relative to
the Russell 2000 Index; and
(2) Imprudent Investment Class B (TCM Fund): All Plan
participants and beneficiaries, excluding the Defendants, who
invested in the TCM Fund between Jan. 22, 2010, and April 8, 2013,
and whose investment in the Fund underperformed the Russell 2500
Growth Index.
The objections stated in the Plaintiffs' Objections to Untimely
Produced Documents Relied on by Defendants in Their Motion for
Summary Judgment, filed May 22, 2018, are overruled.
On March 18, 2019, at 10:30 a.m. (MDT), the counsel for the parties
will contact the Court's administrative assistant at (303) 335-2350
to schedule the matter for a combined Final Pretrial Conference and
Trial Preparation Conference and trial.
A full-text copy of the Court's March 1, 2019 Order is available at
https://is.gd/0jJNbw from Leagle.com.
Deborah Troudt, Brad Stauf, Susan Cutsforth, Wayne Seltzer, Michael
Harkin, Miriam Wagner & Michael Foy, individually and as
representatives of a class of plan participants, on behalf of the
Oracle Corporation 401(k) Savings and Investment Plan, Plaintiffs,
represented by Heather Lea, Schlichter Bogard and Denton, LLP,
James Redd, Schlichter Bogard and Denton, LLP, Kurt Charles
Struckhoff, Schlichter Bogard and Denton, LLP, Michael Armin Wolff,
Schlichter Bogard and Denton, LLP, Troy Andrew Doles, Schlichter
Bogard and Denton, LLP & Jerome Joseph Schlichter, Schlichter
Bogard and Denton, LLP.
Oracle Corporation & Oracle Corporation 401(k) Committee,
Defendants, represented by Brian T. Ortelere --
brian.ortelere@morganlewis.com -- Morgan Lewis & Bockius, LLP,
Christopher Joseph Boran -- christopher.boran@morganlewis.com --
Morgan Lewis & Bockius, LLP, Jeremy P. Blumenfeld --
jeremy.blumenfeld@morganlewis.com -- Morgan Lewis & Bockius, LLP &
Richard B. Benenson -- rbenenson@bhfs.com -- Brownstein Hyatt
Farber Schreck, LLP.
Gayle Fitzpatrick, John Gawkowski, Dan Sharpley, Peter Shott, Mark
Sunday & Amit Zavery, Defendants, represented by Brian T. Ortelere,
Morgan Lewis & Bockius, LLP, Christopher Joseph Boran, Morgan Lewis
& Bockius, LLP & Richard B. Benenson, Brownstein Hyatt Farber
Schreck, LLP.
PARKING REIT: SIPDA Says Proxy Statements Misleading
----------------------------------------------------
SIPDA REVOCABLE TRUST, by Trenton J. Warner, Director, on behalf of
itself and all others similarly situated, the Plaintiff, vs. THE
PARKING REIT, INC., MICHAEL V. SHUSTEK, ROBERT J. AALBERTS, DAVID
CHAVEZ, JOHN E. DAWSON, SHAWN NELSON, NICHOLAS NILSEN and ALLEN
WOLFF, the Defendants, Case No. 2:19-cv-00428 (D. Nev., March 12,
2019), seeks damages and injunctive relief in connection with
Defendants' use of false and misleading proxy statements to obtain
shareholder approval for the merger (the 10 "MVP Merger") of
Parking REIT (then known as MVP REIT II, Inc.) and MVP REIT I, and
related charter amendments.
The case is a class action against The Parking REIT, Inc. and
certain of its current and former officers and directors on behalf
of all public shareholders of the Company and MVP Monthly Income
Realty Trust, Inc. between August 11, 2017 and December 15, 2017.
The MVP Merger was announced in May 2017 and consummated on
December 15, 2017. The MVP Merger was effectuated via separate
false and misleading proxy statements disseminated to shareholders
of MVP REITs I and II, respectively, on or about August 15 Most
notably, the proxy statements failed to disclose that two major
reasons for the MVP Merger and certain charter amendments were (i)
to pave the way for an amended advisory agreement designed to
benefit Defendant Michael V. Shustek ("Shustek") financially in the
event of an internalization of Parking REIT's advisory function or
a change of control transaction; and (ii) to give Shustek the
unfettered ability to cause Parking REIT to internalize its
advisory function or otherwise terminate Parking REIT's advisor,
MVP Realty Advisors, LLC's ("Advisor"), contract with Parking REIT
and thereby trigger an enormous termination fee of up to $21
million for Advisor.
The proxy statements also failed to disclose that Defendant Shustek
had caused MVP REITs I and II to violate Financial Industry
Regulatory Authority ("FINRA") rules in 25 connection with
underwriting compensation and disclosure thereof in connection with
their offerings of stock to the public. The Plaintiff's allegations
on information and belief are based on the Plaintiff's counsels'
investigation, which includes review of the Company's regulatory
filings, publicly-available news articles, weblog postings, and
other publicly-available information.
Parking REIT's Advisor, which also managed MVP REIT II prior to the
MVP Merger, is managed and indirectly owned in part by Defendant
Shustek, via two entities known as Vestin Realty Mortgage I, Inc.
("VRM I") and Vestin Realty Mortgage II, Inc. ("VRM II"). Shustek
owns 15.7% of VRM I, which in turn owns 40% of Advisor. Shustek
also owns 31.8% of VRM II, which in turn owns 60% of Advisor.
In connection with the merger and otherwise, Shustek caused Parking
REIT (whose companywide net asset value or "NAV" was only $161.2
million as of May 2018) to pay Advisor $6.8 million in fees in
2017, including asset management fees of $1.2 million, acquisition
fees of $1.96 million, and merger fees of $3.6 million. The $3.6
million was payable as a result of the completion of the MVP
Merger.
Not content to collect this steady stream of money over and above
the $6.8 million that Advisor extracted from the Company in 2017,
Shustek had also set in place a plan to amend the Company's charter
to eliminate impediments that stood in the way of an even larger
payday. Thus, Shustek caused the Company and MVP REIT I to
implement charter amendments that eliminated a provision in the
Company's charter providing that "a majority of the Independent
Directors may terminate the Advisory Agreement on 60 days' written
notice without cause or penalty, and, in such event, the Advisor
will cooperate with the Corporation and the Operating Partnership
in making an orderly transition of the advisory function."
The charter amendments eliminated any requirement that the Advisor
may be terminated "without cause or penalty" and, indeed,
essentially gave Parking REIT's Board of Directors carte blanche
authority to enter into any advisory arrangement it wishes. After
obtaining approval for the MVP Merger and charter amendments under
false pretenses, on September 21, 2018 Shustek then surreptitiously
caused the Company to enter into a new Third Amended and Restated
Advisory Agreement ("TARAA") with the Advisor that contains
multiple terms far less advantageous to the Company than the Second
Amended and Restated Advisory Agreement ("SARAA") that it is
intended to replace. The TARAA was negotiated by a special
committee of the Board including three members, two of whom are
former board members of VRM II. The TARAA becomes effective upon
completion of the Company's listing on the Nasdaq Global Market.
The TARAA provides for a termination fee of up to $21 million
payable to Advisor in the event that the Company engages in a
change-of-control transaction or internalizes its advisory
function. The SARAA, by contrast, called for no termination fee and
could be terminated without cause by the Board on 60 days' notice.
This outrageous windfall for Advisor is justified by Defendants in
the TARAA as follows: "[i]n recognition of the upfront effort
required by the Advisor to structure and acquire our assets and the
Advisor's commitment of monies and resources to our business and
operations for which the Advisor would be entitled to but, has not
received, reimbursement from us, and as consideration for the
Advisor's release and performance of its other obligations upon
termination of the amended advisory agreement, we will pay the
Advisor a termination fee."
Thus, the Company obtained approval for the necessary charter
amendments under false pretenses, then essentially gifted Advisor a
materially more advantageous agreement with the Company in exchange
for no real consideration. If Parking REIT completes its Nasdaq
listing, Advisor will likely pocket up to $21 million, the lawsuit
says.[BN]
Attorneys for the Plaintiff:
Martin L. Welsh, Esq.
LAW OFFICE OF HAYES & WELSH
199 North Arroyo Grande Blvd., Suite 200
Henderson, NV 89074
Telephone: 702-434-3444
Facsimile: 702-434-3739
E-mail: mwelsh@lvlaw.com
- and -
Donald J. Enright, Esq.
LEVI & KORSINSKY LLP
1101 30th Street, NW, Suite 115
Washington, DC 20007
Telephone: (202) 524-4292
Facsimile: (202) 333-2121
E-mail: denright@zlk.com
- and -
Christopher J. Gray, Esq.
LAW OFFICE OF CHRISTOPHER J. GRAY P.C.
360 Lexington Ave, 14th Floor
New York, NY 10017
Telephone: (866) 966-9598
Facsimile: (212) 937-3139
E-mail: chris@investorlawyers.net
- and -
Joshua B. Kons, Esq.
LAW OFFICES OF JOSHUA B. KONS, LLC
100 Pearl Street, 14th Floor
Hartford, CT 06103
Telephone: (860) 920-5181
Facsimile: (860) 920-5174
E-mail: joshuakons@konslaw.com
PARWELL INVESTMENTS: McCarthy Attorney Discusses Carriage Motions
-----------------------------------------------------------------
Scott Robinson, Esq. -- srobinson@mccarthy.ca -- of McCarthy
Tetrault, in an article for Lexology, reports that In Chu v.
Parwell Investments Inc. et al, 2019 ONSC 700, released on February
15, 2019, Belobaba J. places front and center the growing
importance of class counsel fees in carriage motions. The cases
before the court on that motion were effectively equal on most
factors, such as experience and resources of counsel, the proposed
plaintiffs and defendants, the framing of the causes of action, and
the state of preparation. The fee arrangement emerged as the one
and only determinative factor in awarding carriage. The outcome
here perhaps points to where the law of carriage may be headed.
The Nature of Carriage Motions
When different representative plaintiffs bring different class
actions against the same defendant(s) about the same alleged
wrongdoing, and the plaintiffs or their counsel cannot agree to
work together, a "carriage motion" will typically be heard to
determine which proposed plaintiff's case and counsel will be
permitted to proceed, and which will be stayed. Carriage is a
notoriously murky area of class actions in common law Canada.[1]
The courts have attempted to develop a test of various factors to
consider when awarding carriage, but to date, no one factor is held
out to be determinative, and the list remains non-exhaustive.[2]
From a defendant's perspective, carriage offers a prime opportunity
to enjoy a front row seat as proposed class counsel pick at
weaknesses in each other's cases in open court. While defendants
have standing on carriage motions, the general custom to date has
been to not make submissions, but rather to listen, watch, and
wait.
Class Counsel Fees as the Critical Factor
So far, courts have been called to employ a holistic analysis and
"resist a 'tick the boxes' approach to carriage motions" -- "[t]he
issue is not which law firm 'wins' on the most factors. Rather, it
is the best interests of the class and fairness to the defendants,
having regard to access to justice, judicial economy and behaviour
modification."[3] However, as class action jurisprudence has
matured, experienced class counsel has typically come to know what
cases can be certified, and what it takes to mount a reasonable
carriage offensive. Their skills have generally become equal in
framing and progressing their proposed class actions. This makes
the traditional comparative analysis on carriage difficult -- and
perhaps artificial.
It is therefore worth questioning whether the only meaningful
factor that can and should differentiate between the competing
cases helmed by experienced class counsel is the fee arrangement
between class counsel and the respective representative plaintiffs.
This is typically divulged in the carriage records before the
court. In other words, in a mature class actions bar, courts may
perhaps simply inquire into who can do the best job for the
cheapest price, since lower legal and administrative costs
typically means higher recovery for the class.
Chu is a step in this direction. Assuming a reasonable hypothetical
settlement amount, Belobaba J. compared what each consortium would
charge the class in fees and other costs if they were to prevail as
carriage counsel, with reference to their retainer agreements and
any related funding agreements. In the end, a "fair-minded
comparison of the fees and funding factor" resulted in only one
"objectively measurable differentiation" – one consortium would
charge a higher contingency percentage than the other – and
"[t]his difference will have a significant multi-million-dollar
impact on the actual damages that will be paid out to the class
members."[4] This outcome was all that mattered for Belobaba J. in
Chu.
Revisiting a "Reverse Auction"
Realistically, if fees are indeed going to be the deciding issue on
carriage motions going forward, then perhaps it is time to revisit
the notion of "reverse auctions" on fees by class counsel on
carriage motions. While not employing it, Belobaba J. raised this
idea in a Canadian context in 2014 in Mancinelli v. Barrick Gold,
where he queried whether the competing consortiums would lower
their contingency percentage if granted carriage, declaring "[a]s
is often the case with product purchase decisions, when the goods
or services being compared are otherwise indistinguishable, price
can be the determinative factor".[5]
The Ontario Court of Appeal did not dismiss this hypothetical
approach when upholding Belobaba J.'s decision in Mancinelli in
2016, where it referred to the possibility of a "reverse auction"
and noted that some U.S. courts have indeed instituted competitive
bidding procedures in carriage cases.[6] But the Court of Appeal
did issue a caution:
There is room for debate about whether auctioning the right to
represent the class will be in the best interests of the class. Is
it in the best interests of the class to be represented by counsel
who is prepared to take on the onerous professional and financial
challenges of serving as class counsel at the lowest price? Will
such counsel have a strong incentive to settle the case to recover
their discounted fee at the earliest moment? Will such counsel be
vulnerable to being ground down by the defence? On the other hand,
is an auction a legitimate proxy for market realities? The issue
does not call for a decision in this case and I would leave it, if
necessary, for another day.[7]
A fee-driven approach by Belobaba J. in Chu may have benefits. It
removes the need to spend time, costs, and judicial resources on
assessing an open-ended list of factors that very often lead to
confusion and a lack of predictability for all parties involved.
Whether Chu signals the future for carriage disputes in a field of
otherwise evenly matched class counsel and capabilities, remains to
be seen.[8] So too does the issue of whether any fee-driven
approach to carriage will lead to adoption of the "reverse
auction". Until that time, defence counsel can continue to listen,
watch, and wait -- and take good notes -- as proposed class counsel
battle it out on the traditional carriage factors, for all to see.
[GN]
POST UNIVERSITY: Squire Pattons Attorney Discusses Class Action
---------------------------------------------------------------
Zarish Baig, Esq. -- zarish.baig@squirepb.com -- of Squire Patton
Boggs (US) LLP, in an article for insideARM, reports that we have
all heard it from putative class counsel before: "I can't entertain
a settlement offer on an individual basis." Sure you can, as one
recent decision out of the Southern District of Florida makes
clear.
In Davis v. Post Univ., Inc., No. 18-81004-CIV, 2019 U.S. Dist.
LEXIS 17521 (S.D. Fla. Feb. 1, 2019), the Plaintiff argued that the
Defendant should not be allowed to make a Rule 68 Offer of Judgment
prior to a decision on whether the putative class would be
certified, pursuant to Rule 23. After recognizing the difficult
position the offer put Class Counsel in -- sort of a conflict of
interest, no? -- the Court ultimately determined that the rules
tolerate such maneuvers by Defendants and the Rule 68 offer should
not be stricken.
The facts of the case are pretty straightforward: the Plaintiff
contends that the Defendant failed to heed stop calling requests
from her and other class members. So, she sued the Defendant in a
putative nationwide TCPA class action. Back in 2018, the Defendant
offered -- via a Rule 68 offer -- to settle the case for US$10,000.
Notably, the Defendant did not argue that the case was thereby
mooted – a common, if not often ineffective, strategy in
TCPAworld -- but merely sought to take advantage of the
post-judgment fee shifting paradigm the statute affords. (According
to Rule 68(d), if the judgment that the offeree finally obtains is
not more favorable than the unaccepted offer, then the offer must
pay the costs incurred after the offer was made.)
Rather than accepting the offer, the Plaintiff moved to strike it.
She argued the offer was a "bad faith attempt to defeat a class
action by creating conflict between her and the putative class
members," and stating the court had jurisdiction to strike the
offer under Rule 23(d) and/or its inherent power. Defendant
University argued that since it had been past the 14 days since the
offer had been made, it had expired, and thus, was inadmissible and
moot except for purposes of fee shifting after final judgment was
entered (Rule 68(d)). The Plaintiff, in response, argued that
because the Motion to Strike was made while the offer was still
valid, under Federal Code of Civil Procedure 6, it was still valid.
The court determined that the offer had expired and was no longer
valid and did not find "good cause" to extend the time for the
rather odd purpose of striking it.
In analyzing these issues, the court walked through the tension
that exists between Rules 68 and 23. Specifically, courts have
recognized that "offers to individual named plaintiffs have the
potential to undercut close court supervision of class action
settlements, create conflicts of interests for named plaintiffs,
and encourage premature class certification motions." Weiss v.
Regal Collections, 385 F.3d 337 (3d Cir. 2004). As Davis points
out, courts have not taken a uniform approach to resolving this
tension, but in the view of at least that one court, whatever
complications may arise, the current rules create no exception on
the timing of Rule 68 offers in putative class actions. Hence Davis
refused to strike the offer.
So there you have it, TCPAworld -- no matter how uncomfortable a
Rule 68 offer may make a TCPA class representative (or her
counsel), they remain perfectly viable under the federal rules.
[GN]
PROSHARES SHORT: Johnson Fistel Files Securities Class Action
-------------------------------------------------------------
Johnson Fistel, LLP on Feb. 27 disclosed that it has filed a class
action on behalf of purchasers of ProShares Short VIX Short-Term
Futures ETF shares ("SVXY" or the "Fund") (NASDAQ: SVXY) or options
pursuant to the May 15, 2017 Registration Statement and/or between
May 15, 2017 and February 5, 2018 (the "Class Period").
The Private Securities Litigation Reform Act of 1995 permits any
investor who purchased shares of SVXY pursuant to the Registration
Statement and/or during the Class Period to seek appointment as
lead plaintiff. A lead plaintiff acts on behalf of all other class
members in directing the litigation. The lead plaintiff can select
a law firm of its choice. An investor's ability to share in any
potential future recovery is not dependent upon serving as lead
plaintiff. If you wish to serve as lead plaintiff, you must move
the Court no later than April 1, 2019. If you wish to discuss this
action or have any questions concerning this notice or your rights
or interests, please contact Jim Baker (jimb@johnsonfistel.com) at
619-814-4471. If emailing, please include a phone number.
Additionally, you can [Click here to join this action].There is no
cost or obligation to you.
The complaint charges ProShares Trust II, ProShares Capital
Management LLC, certain of their officers and/or directors and the
underwriters of SVXY shares offered for sale during the Class
Period with violations of the Securities Exchange Act of 1934 and
the Securities Act of 1933. The CBOE Volatility Index, or "VIX,"
seeks to measure the expected volatility of the S&P 500. The Fund
is benchmarked to the S&P 500 VIX Short-Term Futures Index (the
"Index"), an investable index of VIX futures contracts. The
investment objective for the Fund during the Class Period was to
achieve results for a single day that matched (before fees and
expenses) the inverse (-1x) of the daily performance of the Index.
The complaint alleges that, in the Registration Statement and
during the Class Period, defendants made false and misleading
statements and/or failed to disclose adverse information regarding
the risks of investing in the Fund. Specifically, the Registration
Statement failed to disclose that the Fund was threatened with
catastrophic losses as a result of the Fund's flawed design and the
low-volatility environment and acute liquidity risks that existed
during the Class Period. In addition, during the Class Period
defendants made substantially similar false and misleading
statements as those contained in the Registration Statement in
numerous financial reports and draft prospectuses and registration
statements filed with the SEC.
On Monday, February 5, 2018, the stock market declined, with the
S&P 500 Index ("SPX") dropping 4% amid concerns about rising bond
yields and higher inflation. The market turbulence triggered the
flaw concealed in the SVXY, as the crowded market for VIX futures
contracts spiraled out of control. The VIX rocketed upward to a
high of 38.80 during the day, from a close of 17.31 on Friday,
February 2, 2018 -- a 124% daily spike. The Index experienced a
similar surge, as the price of the VIX futures contracts on which
it was based jumped at the end of the trading day. The price of
SVXY shares, which track the inverse of the Index, declined. By the
close of trading on February 5, 2018, the price of SVXY had dropped
to $71.82 per share, from the prior close of $105.60 per share, a
32% decline. By market open on February 6, 2018, the price of SVXY
shares had plummeted to a low of $11.11, a one-day decline of 90%
from the prior day's high of $107.19 per share.
Investors in SVXY pursuant to the May 15, 2017 Registration
Statement and/or between May 15, 2017 and February 5, 2018 can join
this action. There is no cost or obligation to you.
About Johnson Fistel, LLP
Johnson Fistel, LLP -- https://www.johnsonfistel.com -- is a
nationally recognized shareholder rights law firm with offices in
California, New York, and Georgia. The firm represents individual
and institutional investors in shareholder derivative and
securities class action lawsuits. [GN]
RENEWAL BY ANDERSEN: Traynor Asserts Breach of Disabilities Act
---------------------------------------------------------------
Renewal by Andersen, LLC is facing a class action lawsuit filed
pursuant to the Americans with Disabilities Act. The case is styled
as Yaseen Traynor, on behalf of himself and all others similarly
situated, Plaintiff v. Renewal by Andersen, LLC, Defendant, Case
No. 1:19-cv-02116 (S.D. N.Y., March 7, 2019).
Renewal by Andersen, LLC is an international window and door
manufacturing enterprise.
The Plaintiff is represented by:
Dov Michael Mittelman, Esq.
Stein Saks, PLLC
285 Passaic Street
Hackensack, NJ 07601
Tel: (201) 282-6500
Email: mittelmandov@yahoo.com
RESTAURANTS BRANDS: 4 Suits over No-Poaching Policy Filed
---------------------------------------------------------
Restaurant Brands International Limited Partnership said in its
Form 10-K report filed with the U.S. Securities and Exchange
Commission on February 22, 2019, for the fiscal year ended December
31, 2018, that the company has been named as defendant in four
class lawsuits alleging violation of Section 1 of the Sherman Act
by incorporating an employee no-solicitation and no-hiring clause
in the standard form franchise agreement all Burger King
franchisees.
On October 5, 2018, a class action complaint was filed against
Burger King Worldwide, Inc. ("BKW") and Burger King Corporation
("BKC") in the U.S. District Court for the Southern District of
Florida by Jarvis Arrington, individually and on behalf of all
others similarly situated.
On October 18, 2018, a second class action complaint was filed
against Restaurant Brands International Inc. (RBI), BKW and BKC in
the U.S. District Court for the Southern District of Florida by
Monique Michel, individually and on behalf of all others similarly
situated.
On October 31, 2018, a third class action complaint was filed
against BKC and BKW in the U.S. District Court for the Southern
District of Florida by Geneva Blanchard and Tiffany Miller,
individually and on behalf of all others similarly situated.
On November 2, 2018, a fourth class action complaint was filed
against RBI, BKW and BKC in the U.S. District Court for the
Southern District of Florida by Sandra Muster, individually and on
behalf of all others similarly situated.
These complaints allege that the defendants violated Section 1 of
the Sherman Act by incorporating an employee no-solicitation and
no-hiring clause in the standard form franchise agreement all
Burger King franchisees are required to sign. Each plaintiff seeks
injunctive relief and damages for himself or herself and other
members of the class.
Restaurant Brands said, "While we currently believe these claims
are without merit, we are unable to predict the ultimate outcome of
these cases."
Restaurant Brands International Limited Partnership operates and
franchises quick service restaurants. The company operates through
three segments: Tim Hortons, Burger King, and Popeyes. The company
was formerly known as New Red Canada Limited Partnership and
changed its name to Restaurant Brands International Limited
Partnership in December 2014. The company was founded in 1954 and
is headquartered in Toronto, Canada. Restaurant Brands
International Limited Partnership is a subsidiary of Restaurant
Brands International Inc.
RIPPLE: XRP Class Action to Remain in Federal Court
---------------------------------------------------
Nathan Rodriguez, writing for Chainbits, reports that a judge has
decided to rule out an ongoing class action lawsuit, which is
specifically aimed at Ripple. As far as the decision is concerned,
it has to remain in federal court. This simply gives the company a
slight leverage moving forward.
Minor Yet Meaningful Victory
The U.S. District Judge of the Northern District of California
named Phyllis Hamilton ruled recently that a class action lawsuit
filed against the payments firm -- including its affiliated
individuals and subsidiaries -- should not be transferred all the
way back to the lower courts. The decision came after lawyers for
the aforementioned company first moved directly to district court
in 2018.
According to Kobre Kim lawyer named Jake Chervinsky, this might be
a minor victory for the entire Ripple organization. However, as far
as everyone in the company is concerned, it is definitely a
victorious one.
A partner at Anderson Kill named Stephen Palley said in a previous
report that, in most cases, corporate defendants are likely to feel
more comfortable, especially when cases are with federal courts.
Mr. Palley explained that this is because lower court juries and/or
judges tend to locally select and, as a result, the chances of
being sympathetic to plaintiffs are high.
Mr. Chervinsky agreed to the statement Mr. Palley provided. The
attorney even noted that Ripple indeed fought hard in order for the
case to be brought at a federal court level.
The case involving the payments company centers on the digital
currency XRP. The plaintiffs, in particular, allege that the
company issued the crypto as an unregistered securities offering.
But as far as the firm is concerned, these claims have no
substantial value; hence, false.
The subsidiary of XRP II called Ripple Labs and its CEO
Brad Garlinghouse are named defendants in the case. The official
report states that there are other individuals involved in the
ongoing case.
The Long Term
Despite the company's win on the recent jurisdictional phase, the
case is expected not to really go to trial for years. This,
according to Mr. Chervinsky, is possible if the case really goes to
trial at all. Basically, the lawsuit is claimed to be moving past a
handful of other stages, with a possibility of motion to dismiss
being the first one.
Ripple will reportedly argue that the complaint has failed to state
a claim that is legally cognizable as far as the law is concerned.
And this could likely be the description even if one has to assume
that the claims are true. [GN]
RIT TECHS: N.J. Court Grants Motion to Dismiss Class Action
-----------------------------------------------------------
Shearman & Sterling LLP, in an article for Mondaq, reports that on
February 22, 2019, Judge Kevin McNulty of the United States
District Court for the District of New Jersey granted defendants'
motion to dismiss a putative class action against an Israeli-based
technology company ("Company") and its senior officers, asserting
violations of Sections 10(b) and 20(a) of the Exchange Act of 1934,
and Rule 10b-5. Padgett v. RIT Techs. Ltd., No. 2:16-cv-4579, 2019
WL 913154 (D.N.J. Feb. 22, 2019). Plaintiffs alleged defendants
failed to disclose the extent of the Company's reliance on an
agreement with a non-exclusive distributor to provide its products
and services in the Commonwealth of Independent States region
("CIS"). [GN]
RIVERBOAT DELTA: Ross Files Class Action in Ca. Super. Ct.
----------------------------------------------------------
A class action lawsuit has been filed against Riverboat Delta King
Inc. The case is styled as Anthony Ross and Vivian Tran, on behalf
of other members of the general public similarly situated,
Plaintiffs v. Riverboat Delta King Inc. and Does 1-100, Defendants,
Case No. 34-2019-00252462-CU-OE-GDS (Cal. Super. Ct., Sacramento
Cty., March 14, 2019).
The docket of the lawsuit states the case type as other
employment.
The Riverboat Delta King, Inc. operates a riverboat hotel. Its
amenities include lodging amenities, restaurants offering casual
and fine dining, bar and grill services, live entertainment,
professional theaters, and a wine school, as well as facilities for
weddings, banquets, and meetings. The company was founded in 1927
and is based in Sacramento, California.[BN]
The Plaintiff is represented by:
Edwin Aiwazian, Esq.
LAWYERS for JUSTICE PC
410 Arden Ave Ste 203
Glendale, CA 91203
Tel: (818) 265-1020
Fax: (818) 265-1021
Email: edwin@lfjpc.com
RORA LLC: Seeks to Hire Pick & Zabicki as Special Counsel
---------------------------------------------------------
RORA LLC, seeks authority from the U.S. Bankruptcy Court for the
Eastern District of New York to employ Pick & Zabicki LLP, as
special transaction counsel to the Debtor.
RORA LLC requires Pick & Zabicki to assist the Debtor in the
negotiation and consummation of a proposed auction sale of the
Debtor's real property a commercial condominium unit known as Unit
A, 404 East 79th Street, New York, New York.
Pick & Zabicki will be paid at the hourly rates of $405-$475.
Pick & Zabicki will also be reimbursed for reasonable out-of-pocket
expenses incurred.
Douglas J. Pick, partner of Pick & Zabicki LLP, assured the Court
that the firm is a "disinterested person" as the term is defined in
Section 101(14) of the Bankruptcy Code and does not represent any
interest adverse to the Debtor and its estates.
Pick & Zabicki can be reached at:
Douglas J. Pick, Esq.
PICK & ZABICKI LLP
369 Lexington Avenue, Suite 1200
New York, NY 10017
Tel: (212) 695-6000
About RORA LLC
RORA LLC, a New York limited liability company organized in March
2011, owns and operates a parking garage located at 404 E. 79th
Street, Manhattan, New York.
RORA LLC, based in Brooklyn, NY, filed a Chapter 11 petition
(Bankr. E.D.N.Y. Case No. 19-40354) on Jan. 21, 2019. In the
petition signed by Robert Litwin, manager, the Debtor estimated $1
million to $10 million in both assets and liabilities. Lawrence F.
Morrison, Esq., at Morrison Tenenbaum, PLLC, serves as bankruptcy
counsel to the Debtor, and Pick & Zabicki LLP, is special
transaction counsel.
S&D CARWASH: Blumenthal Nordrehaug Files OT Wage Class Action
-------------------------------------------------------------
The Sacramento employment law attorneys at Blumenthal Nordrehaug
Bhowmik De Blouw LLP, filed a class action lawsuit against S&D
Carwash Management LLC , alleging that the company violated The
Private Attorney General Act and allegedly failed to lawfully
calculate and pay their employees the correct overtime. The class
action lawsuit against S&D Carwash is currently pending in the
Sacramento County Superior Court, Case No. 34-2019-00251338.
The lawsuit filed against S&D Carwash alleges the company (a)
failed to provide PLAINTIFF and the other AGGRIEVED EMPLOYEES for
all of the hours they worked, including overtime, (b) failed to
properly record and provide legally required meal and rest periods,
(c) failed to provide accurate itemized wage statements, (d) failed
to pay wages when due, all in violation of the applicable Labor
Code sections listed in Labor Code Sections §§ 201, 202, 203,
204, 226(a), 226.7, 510, 512, 558, 1194, 1198, and the applicable
Industrial Wage Order(s), and thereby gives rise to statutory
penalties as a result of such conduct. PLAINTIFFS hereby seek
recovery of civil penalties as prescribed by the Labor Code Private
Attorney General Act of 2004 as the representatives of the State of
California for the illegal conduct perpetrated on PLAINTIFFS and
the other AGGRIEVED EMPLOYEES.
PAGA is a mechanism by which the State of California itself can
enforce state labor laws through the employee suing under the PAGA
who do so as the proxy or agent of the state's labor law
enforcement agencies. An action to recover civil penalties under
PAGA is fundamentally a law enforcement action designed to protect
the public and not to benefit private parties. The purpose of PAGA
is not to recover damages or restitution, but to create a means of
"deputizing" citizens as private attorneys general to enforce the
Labor Code.
For more information about the class action lawsuit against S&D
Carwash Management LLC, call (800) 568-8020 to speak to an
experienced California employment attorney today.
Blumenthal Nordrehaug Bhowmik De Blouw LLP is a labor law firm with
law offices located in San Diego County, Riverside County, Los
Angeles County, Sacramento County, and San Francisco County. The
firm has a statewide practice of representing employees on a
contingency basis for violations involving unpaid wages, overtime
pay, discrimination, harassment, wrongful termination and other
types of illegal workplace conduct. [GN]
SC DATA: Article III Standing Needed Prior to Settlement Approval
-----------------------------------------------------------------
Esther Slater McDonald, Esq., Tonya M. Esposito, Esq., and Jonathan
Huie, Esq., of Seyfarth Shaw LLP, in an article for Mondaq, report
that on January 8, 2019, Judge Grasz, writing for an Eighth Circuit
panel, reiterated the need for district courts to determine Article
III standing before approving class settlements. The appeal stemmed
from a putative class action wherein U.S. District Court Judge
Nanette Laughrey decided to enforce the parties' tentative
settlement agreement without first deciding the standing issue.
Plaintiff filed the class action suit in Missouri state court in
February 2016 alleging that SC Data Center (SC Data) had committed
violations of the Fair Credit Reporting Act (FCRA). SC Data later
removed the case to federal court. The parties reached a tentative
settlement agreement in May 2016, just days prior to the Supreme
Court's decision in Spokeo v. Robins, which held that the Ninth
Circuit failed to determine Article III standing prior to deciding
a FCRA claim. In July 2016, SC Data unsuccessfully moved to dismiss
the class action citing plaintiff's lack of standing. Judge
Laughrey held that the named plaintiff's standing to bring the FCRA
claim had no bearing on her standing to enforce the parties'
class-action settlement encompassing unnamed plaintiffs.
Thereafter, the parties submitted their class-action settlement
agreement, and Judge Laughrey later approved it.
On appeal, SC Data argued that Judge Laughrey erred by not
evaluating the standing issue before enforcing the settlement. The
Eighth Circuit agreed and noted that Article III standing is a
prerequisite that must be determined not only from the outset but
also throughout the life of the case. The Court held that a
district court's decision to approve or reject a settlement is a
form of court judgment, and a court must possess subject matter
jurisdiction to enter a judgment. Absent jurisdiction, "the court
cannot act."1
The Eighth Circuit rejected plaintiff's argument that Judge
Laughrey need not have assessed the standing issue because SC Data
cannot avoid a settlement agreement based on a change in law that
might have affected its settlement calculus. Instead, the Court
reasoned that Spokeo was not a substantive change in law that
affected the parties' settlement strategy but was merely a
reiteration of the law of standing. The Court vacated Judge
Laughrey's approval of the settlement agreement and remanded the
case for determination of the standing issue.
This decision highlights the need for clients to examine whether
standing exists before agreeing to a class action settlement.
Furthermore, the Eighth Circuit opinion may make it more difficult
for parties to reach class action settlements when there is a
standing issue, particularly if a court determines that standing is
required for each putative class member. Here, however, the Eighth
Circuit did not address the issue of whether standing is required
for each, individual putative class member.
Seyfarth Shaw continues to monitor the developments involving class
actions and will keep its readers apprised of updates. [GN]
SEIU LOCAL: Faces Suit Over Failure to Comply with Janus Ruling
---------------------------------------------------------------
Dave Lemery, writing for Watchdog.org, reports that Pennsylvania
lawmakers were warned last fall that if the state didn't amend its
laws to comply with the terms of the U.S. Supreme Court's landmark
Janus v. AFSCME ruling, the result could be a host of legal
complications. That warning is now ringing true.
The nonprofit Liberty Justice Center has filed a pair of lawsuits
against Pennsylvania unions, claiming they failed to comply with
the Janus ruling. The Liberty Justice Center represented plaintiff
Mark Janus of Illinois in the original Supreme Court case, and its
lawyers are now aiming to help workers across the country who
should be benefiting from that case.
The Janus ruling involved so-called "fair share fees" that public
sector unions have collected from nonmembers across the country.
The premise of these fees was that even nonmembers enjoyed the
benefits of collective bargaining, and therefore it was proper to
expect them to pay some portion of the costs to support the union.
The majority of the Supreme Court ruled, however, that because
unions are politically active, compelling workers to support a
union financially is effectively an unconstitutional restraint of
their freedom of association rights as guaranteed by the First
Amendment.
One of the new lawsuits, Oliver v. SEIU Local 668, involves a
caseworker for the Pennsylvania Department of Human Services,
Shalea Oliver. For six months after the Janus ruling, the Liberty
Justice Center says, the state of Pennsylvania continued to take
money from her paycheck on behalf of the union even though she had
resigned as a union member and demanded that the deductions stop.
"This is a blatant violation of Shalea's First Amendment rights,"
Jeffrey Schwab, senior attorney at the Liberty Justice Center, said
in a news release. "The Commonwealth is deducting union dues from
her paycheck without her explicit permission. The Supreme Court was
clear in Janus: Government employers cannot deduct union dues from
workers' paychecks unless workers have told them to."
The Liberty Justice Center argues that any consent workers gave for
union dues to be deducted pre-Janus became immediately null and
void upon the issuance of the Supreme Court ruling.
"Consent cannot be assumed; it must be voluntary, knowing and shown
by clear and compelling evidence," the center said in its news
release. "Therefore, anything that an employee signed before Janus
authorizing union dues be withheld cannot constitute affirmative
consent because at the time it was signed the employee was given an
unconstitutional choice of paying the union as a member and paying
the union as a nonmember."
The case was filed in the U.S. District Court for the Eastern
District of Pennsylvania in Philadelphia.
In the second lawsuit, the center is representing four Lebanon
County mental health workers under similar circumstances, saying
that the county continued to collect union dues without their
permission. That case, Adams v. Teamsters Local 429, was filed in
the U.S. District Court for the Middle District of Pennsylvania in
Harrisburg.
These aren't the only lawsuits working through the court system
relating to Pennsylvania's compliance with Janus. In January,
attorneys for The Fairness Center filed suit on behalf of three
workers in Pennsylvania's Department of Labor and Industry stating
that their request to quit their union was ignored and then
rejected. The Fairness Center's lawsuit seeks class action status
on behalf of any other state worker who may have experienced
similar circumstances.
These lawsuits follow an October hearing of the Senate Majority
Policy Committee in which lawmakers were warned that failure to
take legislative action to affirm compliance with the Janus ruling
would certainly lead to extensive litigation. [GN]
SERVIS ONE: Rivera's Class Cert. Bid Denied
-------------------------------------------
The Hon. Brian J. Davis entered an order in the lawsuit captioned
ALEXI RIVERA, Individually and on behalf of a class of persons
similarly situated and YERIKA M. RIVERA, Individually and on behalf
of a class of persons similarly situated v. SERVIS ONE, INC., a
foreign corporation, Case No. 3:17-cv-00722-BJD-JBT (M.D. Fla.):
1. overruling the Plaintiffs' Objections to Magistrate Judge
Joel B. Toomey's Report and Recommendation;
2. adopting the Report and Recommendation as the opinion of
the Court;
3. denying the Plaintiffs' Motion for Class Certification and
Incorporated Memorandum of Law; and
4. ordering the parties to file on or before March 18, 2019, a
Case Management Report notifying the Court how the parties
intend to proceed in this case.
On September 1, 2017, Plaintiffs Alexi Rivera and Yerika M. Rivera
filed the Class Action Amended Complaint against the Defendant
alleging that it attempted to collect mortgage debts from them and
other individuals by sending them monthly mortgage statements and
placing calls to their cell phones using an automatic telephone
dialing system and/or a prerecorded voice after the debts were
discharged in bankruptcy. The Plaintiffs allege claims against the
Defendant for violation of the Fair Debt Collection Practices Act,
the Florida Consumer Collection Practices Act, and the Telephone
Consumer Protection Act.
The Plaintiffs sought to certify classes for the FDCPA, FCCPA, and
TCPA claims. Specifically, the Plaintiffs seek certification for
one FCCPA class with a FDCPA subclass, and a separate TCPA class.
The Plaintiffs define the proposed FCCPA class as:
All persons within the state of Florida who, within the two
years prior to the filing of the initial Complaint in this
action through the date that Notice issues to the Class: (a)
had a residential mortgage loan serviced by [Defendant]
after default; (b) received a Chapter 7 discharge of the
mortgage debt serviced by [Defendant]; and (c) were
subsequently sent a Mortgage Statement substantially the
same form as Exhibit "A" which referenced payments due on
the previously discharged mortgage debt.
The Plaintiffs define the proposed FDCPA subclass as those FCCPA
class members falling within the above definition, who received the
subject mortgage statements within one year prior to the filing of
the initial Complaint. The Plaintiffs define the proposed TCPA
class as:
All persons in the United States who, within the four years
prior to the filing of the initial Complaint in this matter
through the date that Notice issues to the class,: (a) had
a residential mortgage loan serviced by [Defendant] while
in default; (b) received a Chapter 7 discharge of the
mortgage debt serviced by [Defendant]; and (c) to whom
Defendant,, subsequent to the discharge order, placed a
non-emergency telephone call to their cellular telephone
number using an automatic telephone dialing system and/or
an artificial or prerecorded voice.
In the Report, the Magistrate Judge recommends that the Plaintiffs
failed to establish that the proposed classes are "adequately
defined and clearly ascertainable," and that Plaintiffs failed to
establish predominance under Rule 23 (b)(3) of the Federal Rules of
Civil Procedure. The Plaintiffs Object to the Magistrate Judge's
findings and argue that the Court should grant their Motion.
In the Report, the Magistrate Judge recommends that the Plaintiffs
failed to propose an administratively feasible method by which
class members can be identified because an individual
account-by-account review of approximately 4,000 to 6,000 accounts
would be required. The Magistrate Judge also recommends that
Plaintiffs also failed to establish that common issues of the
proposed classes predominate over individual issues.[CC]
SH MANAGEMENT: Cranberry Files Civil Rights Suit in Ohio
--------------------------------------------------------
A class action lawsuit has been filed against SH Management. The
case is styled as Robert Cranberry, on behalf of himself and all
others similarly situated, Plaintiff v. SH Management and its
agents and subordinates and Nicole McWilliams in her capacity as
manager of Owls Nest Apartments, Defendants, Case No.
1:19-cv-00544-DCN (N.D. Ohio, March 12, 2019).
The docket of the case states the nature of suit as Rent Lease &
Ejectment filed pursuant to the Civil Rights Act.
SH Management is a business management consultant in Klang,
Malaysia.[BN]
The Plaintiff appears PRO SE.
STAMPS.COM INC: Faces Securities Class Action in California
-----------------------------------------------------------
Federman & Sherwood on March 4 disclosed that on February 28, 2019,
a class action lawsuit was filed in the United States District
Court for the Central District of California against Stamps.com,
Inc. (NASDAQ: STMP). The complaint alleges violations of federal
securities laws, Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934 and Rule 10b-5, including allegations of
issuing a series of material or false misrepresentations to the
market which had the effect of artificially inflating the market
price during the Class Period, which is May 3, 2017 through
February 21, 2019.
Plaintiff seeks to recover damages on behalf of all Stamps.com,
Inc. shareholders who purchased common stock during the Class
Period and are therefore a member of the Class as described above.
You may move the Court no later than Monday, April 29, 2019 to
serve as a lead plaintiff for the entire Class. However, in order
to do so, you must meet certain legal requirements pursuant to the
Private Securities Litigation Reform Act of 1995.
If you wish to discuss this action, obtain further information and
participate in this or any other securities litigation, or should
you have any questions or concerns regarding this notice or
preservation of your rights, please contact:
Robin Hester
FEDERMAN & SHERWOOD
10205 North Pennsylvania Avenue
Oklahoma City, OK 73120
Email to: rkh@federmanlaw.com
Or, visit the firm's website at www.federmanlaw.com [GN]
STANFORD GROUP: Ponzi Scheme Case Transferred to Baton Rouge
------------------------------------------------------------
Stephanie Riegel, writing for Business Report, reports that a
federal district judge in Texas has ruled a class action lawsuit
involving some 900 or so mostly Baton Rouge-based victims of the
Stanford Group's Ponzi scheme will be transferred to the U.S Middle
District Court in Baton Rouge.
Though the ruling virtually escaped public notice when it was
issued in late January, it has potentially huge significance for
the suit's claimants: Not only will the case be tried in local
court, a likelihood anyway, but all the procedural motions and
discovery will take place here, where much of the fraud was
perpetrated and where the victims still live.
"This is significant because of the importance of the case to the
Baton Rouge community," says attorney Phil Preis, who represents
the claimants and has been involved in the Stanford litigation for
nearly a decade. "The importance of the issues and the age of the
plaintiffs should result in the court expediting the treatment of
it."
The class action lawsuit is one of more than a dozen still wending
its way through the courts exactly 10 years after federal
investigators raided the offices of the Stanford Group, ultimately
exposing a nearly $8 billion Ponzi scheme that sent the firm's
founder, R. Allen Stanford to prison for life.
Not all of Stanford's Louisiana investors -- who, collectively,
lost an estimated $1 billion when Stanford collapsed -- are part of
the class action. The claimants in the class number about 900 and
are part of a group that invested their retirement savings as
rollover IRAs into certain fraudulent CDs sold in Baton Rouge by
Stanford Trust Co., one of the Stanford entities.
Together, those claimants lost about $250 million, Mr. Preis
estimates, though their lawsuit seeks damages that could bring the
total amount due to nearly $500 million.
The defendant in the case is SEI Investments Company, the
Pennsylvania-based financial services provider that administered
Stanford's investments. The suit alleges SEI is liable for having
misreported on clients' monthly statements the value of their
Stanford investments.
The recent ruling transferring the case means victims of the
scheme, at least those in the class, are closer than ever to
recovering a substantial portion of their savings, Mr. Preis
believes. Still, a trial is at least 18 months away at the
earliest.
Might there be a settlement?
Mr. Preis say SEI has not indicated it wants to negotiate, though
once a class action suit appears headed to trial that is the usual
outcome.
"But we're proceeding as though it will be tried," he says. [GN]
STATE FARM: Faces Class Action Over Total Loss Reports
------------------------------------------------------
John Huetter, writing for Repairer Driven News, reports that
Columbus, Ga., man late last year sued State Farm, Mitchell and
J.D. Power, claiming that the insurer's use of Mitchell and J.D.
Power's Work Center Total Loss reports undervalued his 2006 Pontiac
Torrent in violation of the Georgia Total Loss Regulations.
Larry Relf said State Farm elected for option 4 of the Georgia
Total Loss rules, which states an insurer can use "(a)ny source for
determining statistically valid fair market values" which meet
three requirements:
(i) The source shall give primary consideration to the values of
vehicles in the local market area, or may consider data on vehicles
outside the area when comparable vehicles have not been available
for data collection in the local market area.
(ii) The source's database shall produce values for at least 85% of
all makes and models for at least the last fifteen (15) model
years, taking into account the values of all major options for such
vehicles.
(iii) The source shall produce fair market values based on current
data available from the area surrounding the location where the
insured vehicle was principally garaged or a necessary expansion of
parameters (such as time and area) to assure statistical validity.
(Minor formatting edits.)
Mr. Relf alleged in Relf v. State Farm et al that Work Center Total
Loss was "statistically invalid" and violated the Georgia
regulation, though his lawsuit said he wasn't seeking a "private
right of action" under that rule.
"The WCTL Valuation Methodology assigns actual cash values for
total loss vehicles in an amount that is significantly lower than
those assigned by published and publicly available valuation
models, such as NADA, Blackbook, and Kelly Bluebook," Mr. Relf's
lawsuit states.
He said its 5-step methodology described in an Exhibit was flawed:
"None of these steps relating to comparable vehicles, calculating
base values or making condition adjustments (step 4) are based on
statistically valid methodologies, algorithms, values or
computations," Mr. Relf's lawsuit stated. "Each step is, in fact,
statistically invalid and does not result in a proper valuation for
total loss vehicles in Georgia.
"Specifically, the WCTL Valuation Methodology for identifying
'comparable' vehicles and for making purported 'equating'
adjustments for equipment, options and mileage are statistically
invalid."
Mr. Relf took particular exception with how J.D. Power and
Mitchell's Work Center Total Loss made "downward condition
adjustments," calling this "a major aspect of the fraudulent scheme
to under-value total losses" and "completely unvalid." The price
cuts were "wholly arbitrary and are not based on any statistical,
objective, valid, or verifiable data," the lawsuit stated.
Mr. Relf alleged the Work Center Total Loss values were frequently
"not intended to yield a value for comparable vehicles, but are
calculated to yield a substantially lesser amount." (Emphasis
his.)
Mr. Relf's 2006 Torrent received a $6,646.99 base value in Work
Center Total Loss, but the software knocked off $298.77 because of
its condition -- an amount he said he should have been granted. He
provided a copy of the valuation as an exhibit; that document rates
the vehicle as a 2.81, or "Good" condition, compared to what it
concluded was 3.02 for typical vehicles. It calls the mileage of
his Torrent unknown.
The loss report used a radius of 200 miles from Mr. Relf's ZIP Code
and reported typical mileage was 107,000 miles.
Mr. Relf alleged that State Farm had "actual knowledge" the Work
Center Total Loss reports were "statistically invalid and unlawful"
and "concealed from Plaintiff that its purported total loss
valuations were based upon the statistically invalid and unlawful
WCTL Valuation Methodology."
He said the market values and negative adjustments represented a
"significant underpayment" of total losses.
State Farm response
State Farm wrote in a memo supporting a motion to dismiss that Mr.
Relf offered no proof for these allegations.
"Plaintiff does not articulate why the methodologies employed by
the WCTL valuation tool are 'invalid,' instead settling for
generic, conclusory averments," State Farm wrote. ". . . Nor does
Plaintiff meaningfully articulate how he believes State Farm was
aware of the alleged problems with the WCTL valuation tool.
Instead, he states in a conclusory fashion that State Farm 'knew'
the WCTL valuation tool was inaccurate."
Mr. Relf sought class-action status for the litigation. He defined
the class as everyone whose vehicle was declared a total loss by
State Farm in a first-party claim since Dec. 12, 2012, in Georgia,
so long as State Farm used the Work Center Total Loss system and
whose vehicle's estimated value was adjusted downward.
He sought for the class damages equivalent to any negative
condition adjustment assessed by State Farm.
Mr. Relf is suing State Farm on separate counts of breach of
contract, bad faith and civil conspiracy and both J.D. Power and
Mitchell on separate counts of tortious interference with a
contract, breach of contract and civil conspiracy.
State Farm said Mr. Relf's lawsuit was "well beyond the one-year
time period" allowed under his policy, which prohibited him for
suing for bad faith and breach of contract. The carrier said
"well-settled Georgia law" found insurance contracts could have
shorter statutes of limitations than state law.
"Beyond that, the Complaint is nothing more than conclusory
allegations stacked upon formulaic averments," it said. ". . .
Plaintiff's claims are nothing more than a backdoor attempt to
assert a private right of action to enforce a provision of
Georgia's Total Loss Regulation, something Georgia courts have
repeatedly rejected."
State Farm pointed out that nothing in Mr. Relf's policy bound it
to any specific total loss value methodology, and Relf couldn't
bring a private right of action under the total loss regulation
holding State Farm to such a requirement. (Mr. Relf's lawsuit
expressly states that he wasn't bringing such a private right of
action.) It was up to Georgia's insurance commissioner to enforce
that regulation, State Farm said.
"The State of Georgia retains the ability to evaluate consumer
complaints and to choose to initiate an action against an insurance
company that it deems has violated the insurance statutes and
regulations," State Farm wrote. "So any violation of the (Motor
Vehicle Accident Reparations Act) should first be pursued through
the established administrative process and not through private
litigation."
Even if Mr. Relf could sue under the total loss regulation, he
didn't provide any evidence of how State Farm's methodology
violated it, State Farm said.
"Other than Plaintiff's repeated conclusory assertions that the
WCTL valuation tool uses a 'statistically invalid' methodology for
reducing the value of the vehicle, the Complaint is bereft of any
detail or substance as to how State Farm violated the Georgia Total
Loss Regulation," State Farm wrote.
Mr. Relf said precedent supporting his allegations existed in the
federal Hamon v. Farmers et al litigation. The Eastern District of
Oklahoma court refused to grant motions by J.D. Power and Mitchell
to dismiss the third amended complaint in that case, "which
asserted the same substantive allegations," according to his
lawsuit.
However, J.D. Power, Mitchell, and plaintiff Tim Hamon ultimately
stipulated to dismiss the case and have the two companies pay their
own costs. The other defendant, Farmers, also stipulated with Mr.
Hamon to end the case and for each to pay their own costs; another
court document suggests a settlement might have been reached
between those two parties.
"Were the Hamon discovery and Hamon expert reports regarding the
invalidity of WCTL Valuations not subject to a Protective Order in
that case, Plaintiff and the Class would make more detailed
allegations regarding the invalidity of the Methodology including,
specifically -- but not exclusively -- Defendants' selection of
'comparable' vehicles, 'projected sold adjustments,' and 'condition
adjustments,'" Mr. Relf's lawsuit states. "Indeed, the Third
Amended Complaint in the Hamon action included such allegations."
"Out of an abundance of caution regarding the Hamon Protective
Order, Plaintiff intentionally has limited the facts alleged herein
regarding the statistical invalidity of the WCTL Valuation
Methodology. Nonetheless, the Hamon expert reports and related
discovery obtained by Plaintiff Hamon establish that J .D. Power
and Mitchell are fully on notice of the plausibility of the claims
and of the issues relating to WCTL Valuations. The Hamon Protective
Order does not preclude J .D. Power and Mitchell from providing
Plaintiff Hamon's expert reports to State Farm in this action."
Mitchell and J.D. Power said in a motion to dismiss that the
Southern District of New York found that references to legal
proceedings "that did not result in an adjudication" are immaterial
and Oklahoma law "materially differs" from Georgia's total loss
law. "In short, nothing about Hamon is instructive with regard to
the viability of Plaintiff's complaint," they wrote.
State Farm said it wasn't a party to Mr. Hamon and expressed
skepticism about what it depicted as a black box argument.
"And even though anything that might be of value from the Hamon
case is subject to a protective order, Plaintiff assures the Court
that the plausibility of his claims would be self-evident were
these materials revealed," the carrier wrote.
J.D. Power and Mitchell
J.D. Power and Mitchell both argued in a separate Feb. 8 memo
supporting a joint motion to dismiss that Relf's beef would be with
State Farm, not either of them.
"However, for reasons that are not at all clear, Plaintiff also
attempts to drag Mitchell and J.D. Power into this insurance
coverage dispute and try to hold Mitchell and J.D. Power liable for
State Farm's alleged underpayment of an insurance claim," the two
information providers wrote in a Feb. 8 memo supporting their
motion to dismiss. "Plaintiff does not (and cannot) allege that
either Mitchell or J.D. Power had any relationship with Plaintiff,
or that Mitchell or J.D. Power played any direct role in the
handling of Plaintiff's insurance claim."
They also argued that they weren't responsible for what State Farm
did with their product -- which they "vigorously" insisted was
valid.
"Even assuming arguendo that the WCTL produces statistically
invalid valuations (and Mitchell and J.D. Power vigorously dispute
Plaintiff's allegation that the WCTL methodology is somehow
invalid), it still cannot result in an induced breach because State
Farm controls how it settles total loss claims, with no input, much
less coercion, from either Mitchell or J.D. Power," the companies
wrote. "And, Plaintiff does not allege any facts supporting such
control or coercion by Mitchell or J.D. Power." (Emphasis theirs.)
Mr. Relf had accused Mitchell and J.D. Power of tortious
interference because they knew State Farm had policies like Relf's,
which required the carrier to "properly investigate the value of
Plaintiff's total loss claim using a fair and statistically valid
valuation system or methodology, and then to properly pay Plaintiff
the appropriate value of his total loss."
He said they knew State Farm would use their Work Center Total Loss
to set total loss values and "typically would refuse to increase
total loss valuations beyond the WCTL Valuations and that State
Farm settled the majority of its total loss claims based upon WCTL
Valuations provided by J.D. Power and Mitchell."
By selling a product they knew to produce "statistically invalid
and wholly arbitrary" amounts "for the specific purpose of enabling
State Farm to underpay the claims of total loss insureds, including
Plaintiff," J.D. Power and Mitchell were interfering with his
contract, Relf said.
J.D. Power and Mitchell said their software runs whenever State
Farm activates it "within a matter of seconds, without active
involvement, participation, or even knowledge by Mitchell – much
less by J.D. Power. Plaintiff also does not (and cannot) allege
that either Mitchell or J.D. Power had specific knowledge of State
Farm's insurance contract with the named Plaintiff."
They also argued that "allowing a tortious interference claim to
proceed based on generalized knowledge of a category of contracts
would expand the tort of tortious interference well beyond anything
recognizable under Georgia law."
Mr. Relf's breach of contract claim against Mitchell and J.D. Power
argued that their collaboration let State Farm outsource the
calculations needed to meet its obligations for total loss claims.
This made him and the other class members "intended third-party
beneficiaries" of contracts State Farm allegedly breached with
their product, he said.
Mitchell and J.D. Power said Mr. Relf didn't present any facts that
Mitchell intended for its contract with State Farm to benefit him.
Their motion also pointed out that J.D. Power was even farther
removed from Mr. Relf's experience than Mitchell.
"Plaintiff does not allege that there is any contract between J.D.
Power and State Farm, much less any relationship whatsoever between
J.D. Power and Plaintiff," their motion stated. "Rather, all
Plaintiff can allege is a relationship between J.D. Power and
Mitchell, a separate and independent relationship between Mitchell
and State Farm, and yet another separate and independent
relationship between State Farm and Plaintiff."
In other total loss litigation news, a Washington state federal
case against First National involving CCC valuations (though CCC
isn't named as a defendant) survived a motion to dismiss by the
insurer last summer and was amended in November 2018. A similar
federal Washington state case against Allstate was amended in
January but doesn't appear to have been challenged with motions to
dismiss or for summary judgment. [GN]
SYNEOS HEALTH: April 30 Lead Plaintiff Motion Deadline Set
----------------------------------------------------------
Rosen Law Firm, a global investor rights law firm, reminds
purchasers of the securities of Syneos Health, Inc. (NASDAQ:SYNH)
from May 10, 2017 through February 27, 2019, inclusive (the "Class
Period") of the important April 30, 2019 lead plaintiff deadline in
the first-filed class action commenced by the firm. The lawsuit
seeks to recover damages for Syneos Health investors under the
federal securities laws.
To join the Syneos Health class action, go to
https://www.rosenlegal.com/cases-1522.html or call Phillip Kim,
Esq. or Zachary Halper, Esq. toll-free at 866-767-3653 or email
pkim@rosenlegal.com or zhalper@rosenlegal.com for information on
the class action. [GN]
TERRILL OUTSOURCING: Sperber Files FDCPA Suit in S.D. New York
--------------------------------------------------------------
A class action lawsuit has been filed against Terrill Outsourcing
Group, LLC et al. The case is styled as Shlomie Sperber also known
as: Shlomo Sperber individually and on behalf of all others
similarly situated, Plaintiff v. Terrill Outsourcing Group, LLC
doing business as: Superlative RM, JHPDE Finance 1 LLC, Defendants,
Case No. 7:19-cv-02147-KMK (S.D. N.Y., Mar. 8, 2019).
The Plaintiff filed the case under the Fair Debt Collection
Practices Act.
Terrill Outsourcing Group, LLC doing business as: Superlaive-RM
Superlative RM is a financial and business services company.[BN]
The Plaintiff is represented by:
Dov Michael Mittelman, Esq.
Stein Saks, PLLC
285 Passaic Street
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: mittelmandov@yahoo.com
TIM HORTONS: Third-Party Funder Approval Win for Plaintiff Bar
--------------------------------------------------------------
Aidan Macnab, writing for Canadian Lawyer, reports that the
approval of a third-party funder for a class action brought by Tim
Hortons franchisees against their franchisor is a win for the
plaintiffs' side class action bar and part of the increased
acceptance of third-party funding in Canada, say lawyers.
JB & M Walker Ltd v. TDL Group, where the court approved
third-party litigation funding, will give class action plaintiffs
more choice of representation, says Andrew Winton --
awinton@lolg.ca -- a partner at Lax O'Sullivan Lisus Gottlieb LLP.
"It makes class action more acceptable to not just well-funded
firms but to other firms who would otherwise be willing to take on
class action cases but are concerned about the contingencies," says
Winton, whose firm often acts on a contingency fee basis and in
class actions and acted last year for litigation funder Bentham IMF
in an approval for third-party funding motion in the Loblaws bread
price-fixing case David v. Loblaw.
"It opens the door for more creative arrangements in order to
enable clients to attain the council they want," says Naomi
Loewith, investment manager and legal counsel at Bentham IMF. While
contingency fees allow lawyers to take on clients without money,
Ms. Loewith says, the lawyer still has to work without fees in the
interim.
"This opens the door for law firms to be fully paid their hourly
fees, which really enables a much wider group of law firms to now
do class action," she says.
With first contingency fees and then the law society's class
proceeding fund, which will pay for disbursements and costs, Ms.
Loewith says litigation funding is the next step in the evolution
of financing class actions. Litigation funding is well established
in Australia, the U.K. and the U.S. and Loewith says it is now
"taking off" in Canada.
JB & M Walker Ltd v. TDL Group involved the alleged misuse of
advertising funds by TDL Group, which franchisees pay into as part
of their franchise agreement. To fund the litigation, the Tim
Hortons franchisees entered a deal with Galactic TH Litigation
Funders LC and it was approved on Feb. 11 by Superior Court Justice
Edward Morgan. Ms. Loewith says that, unlike commercial litigation,
for example, class actions and insolvency cases, because the court
has a supervisory role to protect the interests of the parties not
appearing in court -- such as the class members -- the third-party
funding needs to be approved by the court.
In his decision, Morgan wrote that according to the Class
Proceedings Act and as per the test laid out in Houle v St. Jude
Medical Inc., a third-party funder needs court approval, and to be
approved the agreement cannot be "champertous or illegal and it
must be a fair and reasonable agreement that facilitates access to
justice while protecting the interests of the defendants."
Mr. Winton says that, in approval motions for litigation funding
agreements, the court's primary concern is that the third party not
be exerting control over the plaintiffs.
"And that seems to be the animating feature of the analysis. Where
control remains vested with the plaintiffs, then the agreement
generally will be approved," he says.
The collection of franchisees suing their company had been
bankrolled by the Great White North Franchisee Association, but the
alliance of Tim Hortons franchisees was no longer able to fund the
litigation as of last summer and the plaintiffs could not afford it
on their own. In similar cases, lawyers may wait to be paid until
the case concludes and the class proceedings fund handles the
disbursements and costs, but that arrangement was not sufficient
here because plaintiff's counsel could not work under those
conditions.
Galactic TH Litigation Funders LC, a New York City-based company,
was required to agree to attorn to the court's jurisdiction,
respect confidentiality of all communication related to the case
and abide by the undertaking rule, and, under their agreement,
there can be no termination of the funding arrangement without
court approval.
Apart from paying lawyers while they work on the case, the
financial commitment of a security for costs also makes pursuing
class actions prohibitive because neither plaintiffs or their
defendants have the funds on hand, says Mr. Winton.
"If someone is in a class action with multiple defendants, the
costs that you'd be seeking for security could be quite sizable.
You could be looking very quickly at getting into a seven-figure
order for security," Mr. Winton says.
Under their agreement, Galactic promised to post security if
necessary, pay for any costs award made against the plaintiff and
respect the deemed undertaking rule from the Rules of Civil
Procedure. This means documents or other evidence they are made
aware of through their involvement in the proceedings cannot be
used outside of the proceedings. The motion also included an
affidavit from chairman and CEO of Galactic Frederick Schulman,
showing the company had assets of $33 million and net equity of $29
million, satisfying Morgan of their ability to meet their
obligations.
For its trouble, the plaintiffs will pay Galactic between 22 and 26
per cent of the settlement or award, which, along with the lawyer
fees, would still be well below a "typical 33-per-cent-plus
contingency fee arrangement," which Morgan said satisfied him that
the funder was not being overcompensated.
In Houle, Justice Paul Perell said of the usefulness of third-party
funders: "Class counsel firms are few and those firms take on only
a fraction of the cases that would gratify the goals and policies
of the class action regime."
Jennifer Dolman, a partner at Osler Hoskin & Harcourt LLP in
Toronto, is counsel for the defendant TDL Group Corp. and declined
Legal Feed's request for comment.
Richard Quance -- richard@himprolaw.com -- of Himelfarb Proszanski
is acting for the plaintiffs and could not be reached for comment
before deadline. [GN]
TOKYO ELECTRIC: US Sailors' Fukushima Radiation Class Suit Tossed
-----------------------------------------------------------------
Bianca Bruno, writing for Courthouse News Service, reported that
hundreds of American sailors who filed two class actions claiming
to have suffered physical abnormalities, cancer and death stemming
from exposure to radiation while on a humanitarian mission to
Fukushima, Japan in 2011 were dealt a blow on March 4 when their
cases were dismissed, paving the way for their claims to be brought
in Japan.
U.S. District Judge Janis Sammartino found in a "close call" in two
separate orders, class actions brought against Tokyo Electric Power
Company, or TEPCO, and General Electric, should be dismissed
without prejudice so the service members' claims could be brought
in Japan if they choose to revive them.
The Navy sailors brought two class action cases against TEPCO and
GE in 2012 and 2017 over claims they've suffered -- or will suffer
in the future -- serious physical injuries, cancer and death due to
radiation they were exposed to while serving on the USS Ronald
Reagan.
The sailors were sent on a humanitarian mission to deliver aid and
supplies following the earthquake, tsunami and nuclear meltdown of
a reactor designed by GE and operated by TEPCO that followed the
natural disaster in Fukushima in March 2011.
Judge Sammartino previously dismissed the 2017 class action without
prejudice, finding the court lacked jurisdiction over the acts
related to the meltdown of the Fukushima-Daiichi Nuclear Power
Plant.
In November, the parties gathered in Judge Sammartino's courtroom
to argue whether or not the Southern District of California had
personal jurisdiction over the claims, which could be brought in
Japan under its Compensation for Nuclear Damage Act.
Under Japan's Compensation for Nuclear Damage Act, GE, as
manufacturer of the nuclear reactor, is shielded from liability
which falls on the operator of a nuclear plant. Claims can still be
brought against TEPCO, however, which has already paid over $70
billion to compensate those affected by the disaster.
Former Sen. John Edwards, an attorney for the class members,
previously told Judge Sammartino if the cases were dismissed in the
U.S., the sailors wouldn't "go to Japan and hire Japanese lawyers,"
effectively foreclosing their claims.
In her order on March 4, Judge Sammartino found under
choice-of-law that Japanese law should apply to the claims after
weighing the competing interests of California law, which would
include product liability claims against GE, and Japanese law,
which has an interest in imposing liability "based on and
consistent with the Compensation Act" and Japan's "large investment
in responding to the disaster."
While the judge found both jurisdictions have a "strong interest"
in its laws being applied to the claims, Japan's interest outweighs
California's.
"The court finds no convincing support for plaintiffs' assertion
that Japanese law will leave them with 'minimal and insufficient
damages' requiring the U.S. Government or California to pick up the
financial balance," Judge Sammartino wrote.
"While plaintiffs' contention that litigating in the Japanese forum
will be exponentially more difficult than litigating in California
may be true, plaintiffs have shown no law or facts that indicate
that the Japanese forum is closed to any of the named, or unnamed,
plaintiffs," she added.
Judge Sammartino dismissed the claims against GE pursuant to the
Compensation Act.
As for the claims against TEPCO, Judge Sammartino echoed her
findings regarding the claims against GE finding Japan would be
"more impaired" than California if its laws were not applied to the
sailors' claims, especially in light of the Japanese government's
creation of the Nuclear Damage Compensation and Decommissioning
Facilitation Fund, NDF, providing $75 billion to TEPCO to resolve
claims stemming from the nuclear disaster.
"The Japanese government explained that if United States' law is
applied, it could result in inconsistent adjudication of claims,
which would be 'highly corrosive to the integrity of the
compensation system,' not only for reasons of fairness to the
claimants, but also the continued viability of funding of the NDF,"
Judge Sammartino wrote.
The class members are represented by former Sen. John Edwards and
Catharine Edwards with Edwards Kirby in North Carolina, Charles
Bonner and Cabral Bonner of Sausalito, California and Paul Garner
of Carlsbad California.
Mr. Garner called the dismissal an "incredible travesty of
justice."
"Any suggestion that these U.S. humanitarians, who are sick and
dying, are able to or can receive meaningful compensation in Japan
is a total fiction. We intend to take further steps to obtain our
clients' American constitutional rights to seek redress for the
defendants' admitted culpability for their wanton harm in the
United States justice system," Garner said in an email.
TEPCO is represented by Gregory Stone -- Gregory.Stone@mto.com --
with Munger Tolles and Olson.
Ryounosuke Takanori, a global communications manager for TEPCO,
said in an email: "We understand that the court agreed with our
view. We will look into the court's ruling and continue to respond
to this case appropriately."
GE is represented by Michael Schissel --
michael.schissel@arnoldporter.com -- with Arnold & Porter Kaye
Scholer. [GN]
TOYOTA MOTOR: Plaintiffs Propose Sienna Sliding Door Settlement
---------------------------------------------------------------
David A. Wood, writing for CarComplaints.com, reports that a Toyota
Sienna sliding door class action settlement has been proposed by
plaintiffs and the automaker after minivan owners complained about
doors that had problems when opening and closing.
The proposed settlement includes all 2011-2018 Siennas, many that
were recalled in 2016 because the motor circuits in the power
sliding doors could cause blown fuses.
Owners complained about sliding doors that opened while driving if
the door latches were unlatched.
Based on allegations in the lawsuit, the plaintiffs claim the front
and rear latch circuits fail, the pulleys and cables in the power
doors fail, the switches fail and the door hinges are defective.
According to the proposed terms, Toyota will offer a "customer
confidence program" to pay for repairs to the Sienna sliding door
parts if they are related to the opening and closing operations of
the power sliding doors in manual and power modes.
The settlement, if approved by the judge, will also provide
extended warranty coverage for parts related to the doors.
Toyota Sienna sliding door cable sub-assembly
The sliding door sub-assembly, center hinge assembly, fuel door pin
and hinge will be covered for 10 years following the date of the
final judgment order.
Toyota Sienna sliding door front lock assembly
For 2017-2018 minivans and certain 2016 Siennas to which current
warranty enhancement program ZH4 does not apply, coverage for the
sliding door front lock assembly will begin 10 years following the
date of the final judgment order.
For 2011-2015 Siennas and for certain 2016 models already covered
by the ZH4 extended warranty, coverage will be extended to 10 years
from the normal nine years offered by the ZH4 warranty.
Toyota Sienna sliding door rear lock assembly
For 2016-2018 minivans and certain Siennas to which current
warranty enhancement program ZH4 does not apply, coverage for the
sliding door rear lock assembly will begin 10 years following the
date of the final judgment order.
For 2011-2014 Siennas and certain 2015 to which extended warranty
ZH5 applies, the warranties will be extended to 10 years, one year
more than the nine years offered by ZH5.
Toyota Sienna G04 recall remedy kit
For 2011-2016 minivans, the G04 recall remedy kit is subject to a
one-year replacement part warranty that will be extended to two
years.
The proposed sliding door settlement will also provide a loaner
vehicle for minivans undergoing repairs, and dealers will be
expected to inspect any Sienna sliding doors a customer has
concerns about. Each Sienna will be eligible for one inspection
within one year of the final judgment of the lawsuit.
Affected Sienna customers may also submit claims for previous
out-of-pocket expenses to repair the power sliding doors. However,
claim forms must be submitted with supporting documents to show
those expenses.
Lawyers for Sienna customers will receive $7 million for fees,
costs and expenses.
Sienna customers may learn more and find claim forms at
ToyotaSiennaDoorSettlement.com.
The Toyota Sienna sliding door class action lawsuit was filed in
the U.S. District Court for the District of Connecticut -
Simerlein, et al. v. Toyota Motor Corporation, et al.
The plaintiffs are represented by Beasley, Allen, Crow, Methvin,
Portis & Miles, P.C., DiCello Levitt, Wolf Haldenstein Adler
Freeman & Herz. [GN]
TRANSGENOMIC INC: Campbell's Section 20(a) Claim Dismissal Flipped
------------------------------------------------------------------
In the case, Jesse Campbell, Individually and on Behalf of All
Others Similarly Situated, Plaintiff-Appellant, v. Transgenomic,
Inc.; Paul Kinnon; Precipio, Inc., Defendants-Appellees, Case No.
18-2198 (8th Cir.), Judge William Duane Benton of the U.S. Court of
Appeals for the Eighth Circuit reversed the district court's
dismissal of the Section 20(a) claim.
In October 2016, biotechnical company Transgenomic and
cancer-diagnostics company Precipio, agreed to form Precipio, Inc.
Transgenomic filed a proxy statement with the Securities and
Exchange Commission and sent it to Transgenomic shareholders. They
voted to approve the merger in June 2017.
Campbell brought a class action for former Transgenomic
shareholders against Transgenomic, post-merger Precipio, and Paul
Kinnon, Transgenomic's former president, CEO, interim CFO,
secretary, and director. The Amended Complaint alleges that
Transgenomic and Kinnon violated Sections 14(a) and 20(a) of the
Securities Exchange Act and SEC Rule 14a-9 by disseminating a false
and materially misleading proxy statement that failed to give
Transgenomic shareholders an accurate picture of Precipio's value.
Campbell alleges that the proxy statement was materially misleading
because it omitted Precipio's projected net income/loss (which the
Transgenomic board reviewed before approving of the merger). The
proxy statement also omitted expenses that would allow investors to
independently calculate Precipio's net income/loss from its revenue
projections and gross profit.
Transgenomic denies that the omission of net income/loss is
materially misleading because the proxy statement fully disclosed
other important metrics such as projected unlevered free cash
flows, revenue projections, and gross profit.
The district court dismissed, ruling that, as a matter of law, any
omissions or misstatements in the proxy statement were not
materially misleading. It dismissed for failure to state a claim.
It thought that the question was -- because a proxy statement need
not disclose all financial information -- the crux of the analysis
is where the proxy statement chooses to disclose a financial
valuation, it does so. Campbell appeals.
Judge Benton holds the district court's inquiry wrong. He finds
that pre-merger Precipio's projected net income/loss is not trivial
information. Net income "may be of more significance to investors"
than revenue. The disclosure of Precipio's net income/loss figures
could have significantly altered the total mix by informing
shareholders about pre-merger Precipio's net income/loss. It
cannot be determined as a matter of law whether a reasonable
investor would have considered [pre-merger Precipio's projected net
income/loss] significant at the time.
Additionally, he finds that the proxy statement did disclose gross
profit projections for pre-merger Precipio. By omitting the
(allegedly) significantly lower projections for Precipio's net
income/loss, the proxy statement may have presented Precipio in a
false light that was materially misleading. Because a reasonable
investor may have viewed disclosure of Precipio's net income/loss
as having "significantly altered the 'total mix' of information
made available," the materiality of the omission was improperly
resolved as a matter of law.
Campbell alleges that the proxy statement is also materially
misleading because it mislabels a "Revenue distribution" table.
The Judge finds that the clues cited by Transgenomic do not mean
that the "Revenue distribution" table is not materially misleading.
The point of a proxy statement, after all, should be to inform,
not to challenge the reader's critical wits. Whether a reasonable
investor would decipher from other clues in the proxy statement
that "Precipio" in the "Revenue distribution" table refers to
"pre-merger Precipio" is a question for the trier of fact.
Finally, the Judge finds that Campbell's 20(a) allegation against
Kinnon is also sufficient. Campbell sufficiently pled: (1) a
`primary violator' violated the federal securities laws; (2) Kinnon
actually exercised control over the general operations of the
primary violator; and (3) Kinnon possessed the power to determine
the specific acts or omissions upon which the underlying violation
is predicated. Because Campbell's complaint contains sufficient
factual matter, accepted as true, to state a claim to relief that
is plausible on its face, the dismissal of the Section 20(a) claim
is reversed.
Based on the foregoing, Judge Benton reversed the judgment, and
remanded the case for further proceedings consistent with his
Opinion.
A full-text copy of the Court's March 1, 2019 Opinion is available
at https://is.gd/kDEmkG from Leagle.com.
James J. Frost -- dmaloneylaw@aol.com -- for Defendant-Appellee.
Mark Francis Enenbach, for Defendant-Appellee.
David W. Rowe -- drowe@krbklaw.com -- for Plaintiff-Appellant.
Juan E. Monteverde -- jmonteverde@monteverdelaw.com -- for
Plaintiff-Appellant.
Miles D. Schreiner -- mschreiner@monteverdelaw.com -- for
Plaintiff-Appellant.
Emily S. Unger -- eunger@goodwinlaw.com -- for Defendant-Appellee.
Deborah S. Birnbach -- dbirnbach@goodwinlaw.com -- for
Defendant-Appellee.
Massie P. Cooper -- massie.cooper@troutman.com -- for
Defendant-Appellee.
Tucker D. DeVoe -- tdevoe@goodwinlaw.com -- for
Defendant-Appellee.
Jay D. Koehn -- JKoehn@mcgrathnorth.com -- for Defendant-Appellee.
Joshua Bone -- jbone@goodwinlaw.com -- for Defendant-Appellee.
ULTA BEAUTY: Class Action Over Used Makeup Can Proceed
------------------------------------------------------
Lauren Zumbach, writing for Chicago Tribune, reports that Ulta
Beauty customers who claim the cosmetics retailer resold used
makeup as if it were new will get to have their day in court.
A federal court judge in Chicago ruled on Feb. 26 that a lawsuit
seeking class-action status on behalf of consumers in 18 states,
including Illinois, can proceed, according to court filings.
Allegations that Bolingbrook-based Ulta put returned cosmetics back
on shelves to be sold at full price arose in January 2018, when a
person claiming to be a former employee described repackaging
products in a Twitter post that quickly went viral.
A California woman filed the lawsuit, which seeks unspecified
damages, later that month, and 21 more Ulta customers have since
joined, including two from Illinois.
Judge Jorge Alonso dismissed Ulta's argument that the consumers'
claims were too vague and based on allegations from a just a
handful of employees and social media posts, saying consumers can't
be expected to know the details of the company's practices.
Ulta said it was pleased with the ruling because it narrowed the
plaintiffs' claims.
"We remain confident in the company's position on the remaining
claims, which we continue to believe are without merit," Ulta
spokeswoman Karen Twigg May said in an emailed statement.
Judge Alonso agreed with Ulta that consumers can't claim harm if
they purchased products that were new and unused, since "there was
no defect or risk of harm in the products they purchased, and
therefore no overpayment or injury," according to the Feb. 26 court
filing.
The judge also limited the case to consumers from the 18 states
represented by plaintiffs named in the lawsuit.
In March, Ulta CEO Mary Dillon denied allegations the company sold
used, damaged or expired products during a call discussing the
company's financial results.
Ms. Dillon said Ulta was reinforcing appropriate procedures for
handling returns and had seen no indication that the publicity
around the claims had hurt the company's brand. That remains the
case, Ms. Twigg May said.
Sales at stores open at least 14 months rose 7.8 percent during the
three months ending Nov. 3, down from a 10.3 percent increase
during the same period the year before, Ulta said in December.
But growth in the U.S. beauty industry overall has slowed after
several years of rising spending, Stephanie Wissink, managing
director and consumer products analyst at Jefferies, said in an
email. That has "far more impact" on Ulta's results than factors
like the lawsuit, she wrote. [GN]
UNDER ARMOUR: Bid to Dismiss Maryland Securities Suit Underway
--------------------------------------------------------------
Under Armour Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on February 25, 2019, for the
fiscal year ended December 31, 2018, that the motion to dismiss the
case entitled, In re Under Armour Securities Litigation, is
pending.
On March 23, 2017, three separate securities cases previously filed
against the Company in the United States District Court for the
District of Maryland (the "Court") were consolidated under the
caption In re Under Armour Securities Litigation, Case No.
17-cv-00388-RDB (the "Consolidated Action").
On August 4, 2017, the lead plaintiff in the Consolidated Action,
North East Scotland Pension Fund, joined by named plaintiff Bucks
County Employees Retirement Fund, filed a consolidated amended
complaint (the "Amended Complaint") against the Company, the
Company's Chief Executive Officer and former Chief Financial
Officers, Lawrence Molloy and Brad Dickerson.
The Amended Complaint alleges violations of Section 10(b) (and Rule
10b-5) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") and Section 20(a) control person liability under
the Exchange Act against the officers named in the Amended
Complaint, claiming that the defendants made material misstatements
and omissions regarding, among other things, the Company's growth
and consumer demand for certain of the Company's products.
The class period identified in the Amended Complaint is September
16, 2015 through January 30, 2017. The Amended Complaint also
asserts claims under Sections 11 and 15 of the Securities Act of
1933, as amended (the "Securities Act"), in connection with the
Company's public offering of senior unsecured notes in June 2016.
The Securities Act claims are asserted against the Company, the
Company's Chief Executive Officer, Mr. Molloy, the Company's
directors who signed the registration statement pursuant to which
the offering was made and the underwriters that participated in the
offering. The Amended Complaint alleges that the offering materials
utilized in connection with the offering contained false and/or
misleading statements and omissions regarding, among other things,
the Company's growth and consumer demand for certain of the
Company's products.
On November 9, 2017, the Company and the other defendants filed
motions to dismiss the Amended Complaint. On September 19, 2018,
the Court dismissed the Securities Act claims with prejudice and
the Exchange Act claims without prejudice. The lead plaintiff filed
a Second Amended Complaint on November 16, 2018, naming the Company
and Mr. Plank as the remaining defendants.
The Company and the defendant filed a motion to dismiss on January
17, 2019, which is still pending with the Court.
The Company continues to believe that the claims previously
asserted in the Consolidated Action are without merit and intends
to defend the lawsuit vigorously. However, because of the inherent
uncertainty as to the outcome of this proceeding, the Company is
unable at this time to estimate the possible impact of the outcome
of this matter.
Under Armour Inc. designs, develops, markets, and distributes a
range of apparel and accessories using synthetic microfiber
fabrications in the U.S. and internationally. The company was
founded in 1995 and is headquartered in Baltimore.
UNDER ARMOUR: Suit over MyFitnessPal Application Breach Ongoing
---------------------------------------------------------------
Under Armour Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on February 25, 2019, for the
fiscal year ended December 31, 2018, that the company continues to
defend a consumer class action lawsuit related to the company's
MyFitnessPal application and website.
In early 2018, an unauthorized third party acquired data associated
with the Company's Connected Fitness users' accounts for the
Company's MyFitnessPal application and website.
A consumer class action lawsuit has been filed against the Company
in connection with this incident, and the Company has received
inquiries regarding the incident from certain government regulators
and agencies.
The Company does not currently consider these matters to be
material and believes its insurance coverage will provide coverage
should any significant expense arise.
No further updates were provided in the Company's SEC report.
Under Armour Inc. designs, develops, markets, and distributes a
range of apparel and accessories using synthetic microfiber
fabrications in the U.S. and internationally. The company was
founded in 1995 and is headquartered in Baltimore.
UNITED HEALTHCARE: Amended Scheduling Deadlines in Samson Granted
-----------------------------------------------------------------
In the case, FRANTZ SAMSON, a Washington resident, individually and
on behalf of all others similarly situated, Plaintiff, v.
UNITEDHEALTHCARE SERVICES, INC., Defendant, Case No.
2:19-cv-00175-JLR (W.D. Wash.), Judge James L. Robart of the U.S.
District Court for the Western District of Washington, Seattle, has
issued an order amending the case schedule.
The Plaintiff filed his putative class action complaint in King
County Superior Court on Jan. 9, 2019. On Feb. 5, 2019, the
Defendant removed the action to the Court. On Feb. 8, 2019, the
parties stipulated that good cause existed to extend the deadline
for the Defendant's response to the complaint so it could
investigate the conduct alleged in the complaint and prepare its
response. The Court granted that extension, and ordered that the
Defendant's response to the Plaintiff's complaint is due on March
14, 2019.
On Feb. 20, 2019, the Court issued its Order Regarding Initial
Disclosures, Joint Status Report, and Early Settlement. In that
Order, the Court set the following deadlines: (1) the parties must
complete their FRCP 26(f) Conference by March 6, 2019; (2) the
parties must serve initial disclosures by March 20, 2019; and (3)
the Plaintiff must file the parties' Combined Joint Status Report
and Discovery Plan by March 27, 2019.
The parties agreed and stipulated that good cause exists to
continue each of these deadlines by two weeks so that the Defendant
has sufficient time to investigate the conduct at issue in the
complaint, and the Defendant can file its response to the complaint
before the parties engage in their FRCP 26(f) discovery
conference.
Accordingly, the parties requested that the initial scheduling
deadlines be extended as follows:
a. Deadline for FRCP 26(f) Conference: March 20, 2019
b. Initial Disclosures Pursuant to FRCP 26(a)(1): April 3,
2019
c. Combined Joint Status Report and Discovery Plan as
Required by FRCP 26(f) and Local Civil Rule 26(f): April 10, 2019
Pursuant to the stipulation, and good cause appearing, Judge Robart
granted the amended scheduling deadlines.
A full-text copy of the Court's March 1, 2019 Stipulated Order is
available at https://is.gd/AFmCho from Leagle.com.
Frantz Samson, a Washington resident, individually, Plaintiff,
represented by Aarthi Manohar -- amanohar@kohnswift.com -- KOHN
SWIFT & GRAF PC, pro hac vice, Beth E. Terrell --
bterrell@terrellmarshall.com -- TERRELL MARSHALL LAW GROUP PLLC,
James A. Francis -- info@consumerlawfirm.com -- FRANCIS & MAILMAN
PC, pro hac vice, Jennifer Rust Murray --
jmurray@terrellmarshall.com -- TERRELL MARSHALL LAW GROUP PLLC,
John Soumilas, FRANCIS & MAILMAN PC, pro hac vice, Jonathan Shub --
jshub@kohnswift.com -- KOHN SWIFT & GRAF PC, pro hac vice, Kevin
Laukaitis -- klaukaitis@kohnswift.com -- KOHN SWIFT & GRAF PC, pro
hac vice & Adrienne McEntee -- amcentee@terrellmarshall.com --
TERRELL MARSHALL LAW GROUP PLLC.
UnitedHealthCare Services Inc, Defendant, represented by Nipun
Patel -- Nipun.Patel@hklaw.com -- HOLLAND & KNIGHT LLP, pro hac
vice, Paul Bond -- Paul.Bond@hklaw.com -- HOLLAND & KNIGHT LLP, pro
hac vice, Zalika Pierre -- Zalika.Pierre@hklaw.com -- HOLLAND &
KNIGHT, pro hac vice, Kristin Mariko Asai -- Kristin.Asai@hklaw.com
-- HOLLAND & KNIGHT & Shannon Lea Armstrong --
Shannon.Armstrong@hklaw.com -- HOLLAND & KNIGHT.
UNITED NATURAL: Claims in Cortez Suit Over Unpaid Wages Narrowed
----------------------------------------------------------------
In the case, RICHARD B. CORTEZ, Plaintiff, v. UNITED NATURAL FOODS,
INC., et al., Defendants, Case No. 18-cv-04603-BLF (N.D. Cal.),
Judge Beth Labson Freeman of the U.S. District Court for the
Northern District of California, San Jose Division, (i) denied the
Plaintiff's motion to remand; (ii) granted in part and denied in
part the Defendants' motion to dismiss the complaint for failure to
state a claim under Federal Rule of Civil Procedure 12(b)(6); and
(iii) denied the Defendants' motion to strike under Rule 12(f).
Cortez brings the putative class action against his employers
Defendants United Natural Foods, Inc. ("UNFI") and United Natural
Foods West, Inc. for various California state law wage and hour
violations. Cortez worked as a delivery driver for the Defendants
from June 2016 to August 2017.
The Plaintiff brings the action on behalf of two subclasses of
individuals employed by the Defendants in California within the
four-year period preceding the filing of the action: (1) those
persons employed by the Defendants as delivery drivers; and (2)
persons employed by the Defendants to whom the Defendants issued
wage statements. The Plaintiff alleges that similarly situated
drivers experienced each of the problems.
The Plaintiff alleges that he was required to use personal cell
phones for work, but that the Defendants did not begin reimbursing
him until July 2017, when they began providing $20/month, though
that amount did not sufficiently reimburse the Plaintiff. The
Defendants also routinely required the Plaintiff to work longer
than 5 hours without rest or meal breaks. The Plaintiff alleges
the Defendants should have known about this failure to provide
breaks because they were aware of the drivers' delivery locations
and schedules. He never signed a meal period waiver. The
Defendants did not pay the Plaintiff an additional hour of
compensation for these missed breaks. Because they did not pay the
Plaintiff for these missed breaks, the Defendants failed to include
any meal and rest break compensation on their wage statements.
For a portion of the Plaintiff's employment UNFI did not pay him
for all of his hours worked or all of his overtime, though he
routinely worked more than 8 hours a day and 40 hours a week
without additional compensation. He also routinely received driver
bonuses, but this amount was not included in his regular rate of
pay, thus resulting in inaccurate overtime rates. Because of these
failures, the Defendants failed to provide accurate wage statements
to him. Also, for all employees (not just delivery drivers), the
Defendants failed to provide on the wage statements either the last
four digits of the employees' social security numbers or their
employee identification numbers.
Based on these allegedly unlawful acts by the Defendants, the
Plaintiff filed the instant Complaint in Santa Clara County
Superior Court on June 18, 2018, bringing the following seven
causes of action: (1) failure to indemnify employees for necessary
expenses under Cal. Lab. Code Section 2802; (2) failure to provide
rest and meal breaks in violation of Cal. Lab. Code Sections 226.7
and 512; (3) failure to provide accurate, itemized wage statements
in violation of Cal. Lab. Code Section 226(a); (4) failure to pay
regular and overtime wages in violation of Cal. Lab. Code Sections
510, 558, 1194; (5) failure to pay wages when due in violation of
Cal. Lab. Code Sections 201, 202, 203, 204, 204b; (6) unfair
business practices under Cal. Bus. & Prof. Code Section 17200, et
seq., for these labor code violations; and (7) a claim under the
Private Attorneys General Act ("PAGA"). The Plaintiff seeks
various relief, including damages of $4,999,999.99, and reasonable
attorneys' fees. The Defendants were served on June 28, 2018. Not.
On July 30, 2018, the Defendants removed the action to the Court,
asserting that the Court has diversity jurisdiction under the Class
Action Fairness Act ("CAFA") because (i) diversity of citizenship
exists between at least one putative class member and one
Defendant; (ii) the aggregate number of putative class members in
all proposed classes is 100 or greater; and (iii) the amount placed
in controversy by the Complaint exceeds, in the aggregate, $5
million, exclusive of interest and costs.
As to these requirements, the Defendants first alleged that UNFI is
incorporated in Delaware with a principal place of business in
Rhode Island, while the Plaintiff is a citizen of California, thus
satisfying the diversity of citizenship. Second, they submitted a
declaration by Anne Mosher, National Payroll Services Manager of
UNFI and its subsidiaries, averring that the Defendants employed
approximately 653 delivery drivers in California during the
relevant period and at least 3,723 employees received wage
statements during that period. Third, the Defendants calculated
that the amount in controversy is ostensibly $5 million.
Judge Freeman denied the Plaintiff's motion to remand. She holds
that the Defendants have sufficiently proven that the Plaintiff's
request for reasonable attorneys' fees puts an additional
$1,130,175 in controversy ($4,520,700 × 0.25 = $1,130,175). When
this amount is added to the amount in controversy created by the
wage statement claim ($4,520,700), the total amount in controversy
in the action totals $5,650,875, and thus satisfies the final CAFA
requirement.
The Judge granted in part and denied in part the Defendants' motion
to dismiss. She denied the Defendants' motion to dismiss the
Plaintiff's first, sixth, and seventh causes of action; and granted
their motion to dismiss the Plaintiff's second, third, fourth, and
fifth causes of action with leave to amend.
She finds that (i) the Plaintiff has alleged that the Defendants
knowingly required drivers to use their cell phones and failed to
reimburse them sufficiently for such use; and (ii) the Plaintiff
alleges a violation of Labor Code Section 2802 for the Defendants'
failure to indemnify.
The Judge denied the Defendants' motion to strike. She finds that
each of the questions is a disputed legal issue, for which both
sides cite supporting case authority. Likewise, the Plaintiff must
amend most of the relevant claims, and that amendment may cure
several of these issues, particularly given the Defendants' strong
arguments on several of these fronts. Moreover, the legal
questions at issue do not appear to be those that might cause
over-burdensome discovery and mar the litigation in such a way that
deciding these issues at this stage is necessary to avoid the
expenditure of time and money that must arise from litigating
spurious issues by dispensing with those issues prior to trial.
Finally, she notes that the California Supreme Court in its pending
case Stewart v. San Luis Ambulance, Inc., may soon resolve the
first issue presented as to whether meal and rest break hours count
as "wages" for wage statement claims.
Unless otherwise stipulated, the Plaintiff will file a First
Amended Complaint by March 29, 2019. Failure to meet the deadline
to file an amended complaint or failure to cure the deficiencies
identified in the Order will result in dismissal of the Plaintiff's
claims with prejudice.
A full-text copy of the Court's Feb. 27, 2019 Order is available at
https://is.gd/g3zVKf from Leagle.com.
Richard B. Cortez, on behalf of himself, and all others similarly
situated, Plaintiff, represented by Rachel E. Davey --
rachel@workmanawpc.com -- Workman Law Firm, PC & Robin Gibson
Workman -- robin@workmanlawpc.com -- Workman Law Firm, PC.
United Natural Foods, Inc. & United Natural Foods West, Inc.,
Defendants, represented by John S. Battenfeld --
john.battenfeld@morganlewis.com -- Morgan, Lewis & Bockius LLP,
Andrea Lynn Fellion -- andrea.fellion@morganlewis.com -- Morgan,
Lewis & Bockius LLP, Michael J. Puma --
michael.puma@morganlewis.com -- Morgan, Lewis n Bockius LLP, pro
hac vice & Sean Patrick Wilson -- sean.wilson@morganlewis.com --
Morgan Lewis and Bockius LLP.
UNITED STATES: Immigrant Parents Seeking Reunification with Kids
----------------------------------------------------------------
Julie Small, Max Rivlin-Nadler and Vianey Contreras, writing for
KQED News, report that U.S. Customs and Border Protection took 28
families into custody on March 2 who are seeking to be reunified
with children, according to immigration attorneys.
Dozens of immigrant parents whose children were taken from them at
the border last year showed up en masse at the U.S.-Mexico border
on March 2 seeking to re-enter the country.
Attorneys for the 28 families say all of the parents who presented
themselves at the Calexico West Port of Entry have a legal right to
be reunited with their children under a federal class-action
settlement.
On June 26, 2018, U.S. District Judge Dana Sabraw ordered the Trump
Administration to stop separating migrant families and reunite
roughly 2,800 kids in U.S. custody with their parents.
At the time, government officials told the court that more than 400
mothers and fathers had already been deported without their
children.
Immigration officials gave the parents two choices: have their
children returned to them in their home countries or leave them in
the U.S. to pursue an asylum claim on their own.
"Parents were becoming increasingly desperate," said Erika
Pinheiro, an immigration attorney with the non-profit Al Otro Lado
who accompanied the families to submit their asylum claims.
The government also agreed to consider letting the parents back
into the US to be with their children. Ms. Pinheiro says parents
who asked to return submitted those requests on December 15.
"The government had 30 days to respond," she said. "Then there was
a government shutdown."
In a text message on March 3, Ms. Pinheiro said CBP officers
initially said they "had no capacity" to process the families'
claims, but later in the day took physical custody of their
applications for asylum and admitted all of them into CBP custody
by 8 pm on March 2.
Many of the parents are traveling with their other children,
including a 3-month-old, because they did not want to be separated
again.
One father from Honduras -- who asked to be referred to as Mr. M
because he feared for his family's safety -- traveled to the U.S.
in April 2018 with his teenage son. After they crossed the Rio
Grande from Reynoso, Mexico to Texas, they were taken into
custody.
Mr. M said when immigration officials threatened to take him away
from his son, the boy cried, "'Daddy, don't leave me!'"
"He grabbed onto me," Mr. M. said. "He held on tight. And I held
onto him too."
They were separated and Mr. M was not told the whereabouts of his
son.
At first, Mr. M refused to sign a voluntary departure order but
eventually relented. When he returned to Honduras with the news, he
said the boy's mother became inconsolable.
His mother "would cry every day and she wasn't eating anymore,"
said Mr. M, choking back tears. "Since I was stronger, I had to go
back."
Mr. M's son was eventually released from government custody to
relatives in the U.S. [GN]
UNITED STATES: Prelim Injunction Bid in CAM Program Suit Partly OKd
-------------------------------------------------------------------
In the case, S.A., et al., Plaintiffs, v. DONALD J. TRUMP, et al.,
Defendants, Case No. 18-cv-03539-LB (N.D. Cal.), Magistrate Judge
Laurel Beller of the U.S. District Court for the Northern District
of California, San Francisco Division, granted in part and denied
in part the Plaintiffs' motion for a preliminary injunction.
Under the Immigration and Nationality Act ("INA"), the Secretary of
Homeland Security has discretion to parole foreign nationals into
the United States "temporarily" and "only on a case-by-case basis
for urgent humanitarian reasons or significant public benefit."
Parole does not constitute admission in a valid immigration or
nonimmigrant status, but it allows a foreign national to enter and
physically be present in the United States.
In 2014, the government instituted a program called the Central
American Minors ("CAM") Program, which allowed parents who were
lawfully present in the United States to apply to bring their
children and other qualifying family members in three countries --
Honduras, Guatemala, and El Salvador ("Northern Triangle") -- into
the United States. A Program goal was to discourage children from
making the long and dangerous journey from the Northern Triangle to
the United States to try to reunite with their parents. The
Program sought to achieve this goal by allowing applicant parents
to apply for their beneficiary children while the children remained
in their original countries.
The CAM Program had two components: a refugee component and a
parole component. U.S. Citizenship and Immigration Services
("USCIS"), an agency within the U.S. Department of Homeland
Security ("DHS"), first evaluated beneficiaries to see if they
qualified for refugee status. If the beneficiaries qualified,
USCIS referred them for approval as refugees under the CAM Refugee
Program. If they did not qualify, USCIS automatically considered
them for parole into the United States under the CAM Parole
Program.
In January 2017, following a change in presidential
administrations, Pres. Donald Trump issued an Executive Order that
(among other things) directed the Secretary of Homeland Security to
"take all appropriate action" to ensure that DHS exercised its
parole authority "only on a case-by-case basis" and "only when an
individual demonstrates urgent humanitarian reasons or a
significant public benefit derived from such parole."
Beginning in January or February 2017, DHS stopped processing CAM
Program applications and began a review of the CAM Parole Program.
In August 2017, DHS announced that it was terminating the CAM
Parole Program. It also announced that it was rescinding the
decisions it had previously made under the Program for 2,714
beneficiaries whom it had conditionally approved for parole but who
had not yet traveled to the United States.
The Plaintiffs in the case -- applicant parents lawfully residing
in the United States who applied to the CAM Program, their
beneficiary children in Northern Triangle countries, and the
nonprofit immigrant-rights organization CASA -- filed the putative
class-action lawsuit, bringing claims under the Administrative
Procedure Act ("APA"), the Due Process Clause, and the
equal-protection component of the Due Process Clause, and a claim
for equitable estoppel. The claims challenge as unlawful DHS'
termination of the CAM Parole Program and its decision to rescind
en masse its prior decisions to conditionally approve parole for
the 2,714 beneficiaries (including named beneficiary-children
Plaintiffs in the case).
The Defendants moved to dismiss the Plaintiffs' claims. On Dec.
10, 2018, the Court granted in part and denied in part the
Defendants' motion to dismiss. It dismissed the Plaintiffs'
due-process, equal-protection, and equitable-estoppel claims and
dismissed the APA claims challenging DHS' termination of the CAM
Parole Program going forward. It denied the Defendants' motion to
dismiss the the Plaintiffs' APA claims challenging DHS' decision to
mass-rescind conditional approvals of parole that issued before DHS
terminated the Program in August 2017. The Court held that DHS
acted arbitrarily and capriciously when it failed to take into
account and address the serious reliance interests of participants
who were conditionally approved for parole when it mass-rescinded
those approvals.
The Plaintiffs moved for a preliminary injunction (1) enjoining DHS
from terminating the CAM Parole Program and (2) vacating DHS'
mass-rescission of conditional approvals of parole. With respect
to the second request, they do not seek an injunction mandating
that DHS admit any particular Program beneficiary into the United
States. Instead, they seek only an order requiring DHS to continue
to process the conditionally approved beneficiaries under the
procedures that it had in place for processing the beneficiaries
before it terminated the Program.
The Court held two hearings on the Plaintiffs' motion: one on Oct.
30, 2018 (a hearing on the Plaintiffs' motion for a preliminary
injunction and the Defendants' then-pending motion to dismiss) and,
following two rounds of supplemental briefing, a second hearing on
Feb. 14, 2019 on the Plaintiffs' preliminary-injunction motion.
Judge Beller granted in part and denied in part the Plaintiffs'
motion for a preliminary injunction. She denied the Plaintiffs'
motion to enjoin DHS from terminating the CAM Parole Program going
forward.
The Judge granted the motion to require DHS to continue to process
the 2,714 conditionally approved beneficiaries under the procedures
that it had in place for processing the beneficiaries before it
terminated the Program and orders the following:
1. DHS' decision to mass-rescind conditional approvals for the
2,714 beneficiaries conditionally approved for parole but who had
not traveled to the United States is vacated.
2. DHS must continue the post-conditional-approval processing
for the 2,714 beneficiaries under the policies and procedures for
processing beneficiaries that it had in place before January 2017,
including the procedures described in USCIS' publication CAM Parole
Program: Information for Conditionally Approved Applicants (Exhibit
48 in the administrative record). DHS is preliminarily enjoined
from adopting any policy, procedure, or practice to not process the
beneficiaries or to place their processing on hold en masse.
Nothing in the Order prevents DHS from placing any beneficiary's
processing on hold on an individualized basis to the extent that it
could do so under the policies and procedures it had in place
before January 2017.
3. By March 21, 2019, DHS must submit to the court and counsel
its plan for processing these 2,714 beneficiaries with benchmarks
for assessing compliance.
4. Nothing in the order compels DHS to reach any particular
outcome with respect to the processing of any individual
beneficiary or prevents DHS from exercising its discretion with
respect to the parole of any individual beneficiary.
5. Nothing in the order prevents DHS from reconsidering its
decision to mass-rescind conditional approvals of parole, including
the serious reliance interests of participants conditionally
approved for parole.
A full-text copy of the Court's March 1, 2019 Order is available at
https://is.gd/Z6w7Nx from Leagle.com.
S.A., J.A., A.B., R.C., on behalf of himself and as Guardian Ad
Litem for J.C., a minor child, M.C., D.D., G.E., on behalf of
himself and as Guardian Ad Litem for B.E., a minor child, J.F., on
behalf of himself and as Guardian Ad Litem for H.F. and A.F., minor
children, on behalf of themselves and on behalf of a class of all
similarly situated individuals & CASA, Plaintiffs, represented by
Daniel B. Asimow -- daniel.asimow@arnoldporter.com -- Arnold &
Porter Kaye Scholer LLP, John A. Freedman --
john.freedman@arnoldporter.com -- Arnold and Porter Kaye Scholer
LLP, David Jonathan Weiner -- david.weiner@arnoldporter.com --
Arnold & Porter Kaye Scholer LLP, Justin Bryan Cox, National
Immigration Law Center, Kathryn Claire Meyer, International Refugee
Assistance Project, Linda Evarts, International Refugee Assistance
Project & Mariko Hirose .
Donald J. Trump, in his official capacity as President of the
United States, U.S. Department of Homeland Security, U.S.
Citizenship and Immigration Services, Kirstjen Nielsen, in her
official capacity as Secretary of Homeland Security, Michael R.
Pompeo, in his official capacity as Secretary of State, L. Francis
Cissna, in his official capacity as Director of U.S. Citizenship
and Immigration Services, United States of America & U.S.
Department of State, Defendants, represented by Wendy M. Garbers,
United States Attorney's Office & Alison E. Daw, US Attorney's
Office.
UNITED STATES: Ruling on IRS' PTIN Fee in Montrois Suit Vacated
---------------------------------------------------------------
In the case, BRITTANY MONTROIS, CLASS OF MORE THAN 700,000
SIMILARLY SITUATED INDIVIDUALS AND BUSINESSES, ET AL., Appellees,
v. UNITED STATES OF AMERICA, Appellant, Case No. 17-5204 (D.C.
App.), Judge Padmanabhan Srikanth Srinivasan of the U.S. Court of
Appeals for the District of Columbia Circuit (i) vacated the
judgment of the district court that IRS lacks statutory authority
to charge the fee; and (ii) remanded the case for further
proceedings.
Tax-return preparers are persons who prepare clients' tax returns
for compensation. The IRS regulations require preparers to obtain
from the agency (and renew annually) a unique identifying number
known as a Preparer Tax Identification Number ("PTIN"). Preparers
must list that PTIN on any return they prepare.
In 2010, the IRS began charging tax-return preparers a fee to
obtain and renew PTINs. The fee is designed to recoup the costs to
the agency of issuing and maintaining a database of PTINs. As
authority to exact the PTIN fee, the IRS relies on the Independent
Offices Appropriations Act, which allows federal agencies to charge
fees for services in certain conditions.
A group of tax-return preparers challenged the first set of
regulations: the registered-tax return preparer system establishing
a registration and credentialing system for preparers. The
Plaintiffs argued that the IRS lacks authority under the Internal
Revenue Code to establish a licensing system for tax-return
preparers.
The Court agreed and invalidated the registered tax-return preparer
regulations. Because its invalidation of the registered-tax return
program meant that there was no longer an agency-administered
credentialing scheme in effect, its decision in Loving v. IRS, had
the effect of reinstating a regime in which anyone who wishes to
prepare tax returns for others can do so as long as she obtains a
PTIN (and pays the associated fee), without needing to satisfy any
credential requirements.
In 2014, after the Court issued its decision in Loving, several
tax-return preparers initiated the instant in the appeal. The
preparers challenge the lawfulness of the IRS' assessment of a fee
for providing them a PTIN. They argue that the PTIN fee is
contrary to the Independent Offices Appropriations Act and is
arbitrary and capricious.
While the case was pending before the district court, the IRS
reduced the amount of the PTIN fee from $50 to $33 (not including a
vendor fee). The IRS adjusted the PTIN fee in the wake of the
Court's decision in Loving. A portion of the original PTIN fee was
to have been used to pay the costs of the registered tax-return
preparer program invalidated in Loving, and the IRS reduced the
amount of the PTIN fee to cover the costs of those portions of the
PTIN program that remained in effect after Loving.
The district court, after certifying a Plaintiffs' class of
tax-return preparers, granted summary judgment in the preparers'
favor in relevant part. The court upheld the IRS' requirement that
preparers obtain a PTIN. But the court invalidated the PTIN fee
charged by the IRS on the ground that the fee violates the
Independent Offices Appropriations Act
The court reasoned in part that, for an assessment to qualify as a
fee under that Act as opposed to an unauthorized general tax, the
assessment must relate to a specific benefit conferred to an
identifiable set of users. But in the case, the court emphasized,
essentially any person can obtain a PTIN after Loving invalidated
the PTIN eligibility criteria, such that the PTIN program, in the
court's view, could no longer be said to benefit a particular set
of individuals rather than the public in general. The court also
rejected the IRS' argument that the PTIN fee could be sustained
based on an interest in protecting tax-return preparers' social
security numbers. It believed that the agency had not adequately
raised or explained that rationale when it issued the rule
establishing the fee.
The IRS now appeals.
Judge Srinivasan finds that (i) Section 7422(a) did not require the
tax-return preparers to submit their claims to the IRS before
bringing this action in federal court; (ii) to the extent the
tax-return preparers believe that the amount of the PTIN fee is out
of step with the narrowed scope of remaining PTIN-related
functions, those concerns pertain to the reasonableness of the fee,
not to whether a fee can be assessed in the first place; (iii) the
IRS acted within its statutory authority under the Independent
Offices Appropriations Act in charging tax-return preparers a fee
to obtain and renew PTINs; and (iv) the IRS' decision to charge a
fee at all was adequately grounded in services lying within its
authority, and thus was not arbitrary and capricious.
The Judge concludes that the IRS acted within its authority under
the Independent Offices Appropriations Act in charging tax-return
preparers a fee to obtain and renew PTINs. He further concludes
that the IRS' decision to charge the fee was not arbitrary and
capricious. He vacated the judgment of the district court and
remandes for further proceedings, including an assessment of
whether the amount of the PTIN fee unreasonably exceeds the costs
to the IRS to issue and maintain PTINs.
A full-text copy of the Court's March 1, 2019 Opinion is available
at https://is.gd/aLZXsR from Leagle.com.
Gilbert S. Rothenberg, Attorney, U.S. Department of Justice, argued
the cause for appellant. With him on the briefs were Jessie K. Liu,
U.S. Attorney, and Richard Farber and Norah E. Bringer, Attorneys.
Jonathan E. Taylor argued the cause for appellees. With him on the
brief were Deepak Gupta -- deepak@guptabeck.com -- William H.
Narwold -- bnarwold@motleyrice.com -- Allen Buckley --
ab@allenbuckleylaw.com -- Louis Bograd, and Christopher S. Rizek --
crizek@capdale.com -- Elizabeth S. Smith -- esmith@motleyrice.com
-- entered an appearance.
Allen Buckley was on the supplemental brief for
plaintiffs-appellees.
UNITEDHEALTHCARE INSURANCE: Cert. of Classes Sought in Hill Suit
----------------------------------------------------------------
Bryon Hack and Tom Donney, Plaintiffs in the lawsuit styled JENEE
HILL, on behalf of herself and all others similarly situated v.
UNITEDHEALTHCARE INSURANCE COMPANY, Case No. 8:15-cv-00526-DOC-KES
(C.D. Cal.), move the Court for an order certifying this class:
All persons covered under health plans insured or
administered by UnitedHealth Group, Inc., through its
wholly-owned or controlled subsidiaries, including
UnitedHealthCare Insurance Company and United HealthCare
Services, Inc., issued to private employers, whose requests
for lumbar artificial disc replacement surgery were denied
at any time within the applicable statute of limitations, or
whose requests for that surgery will be denied in the
future, on the ground that lumbar artificial disc
replacement is "Unproven." Excluded from this Class are
persons who are members of the de novo class certified in
Hill v. UnitedHealthCare Insurance Company,
Case No. SACV15-00526 DOC (RNBx).
In the alternative, the Plaintiffs move for an order certifying
these subclasses:
* All persons covered under self-funded health plans or
third-party insurers administered by UnitedHealth Group,
Inc., through its wholly-owned or controlled subsidiaries,
including UnitedHealthCare Insurance Company and United
HealthCare Services, Inc., issued to private employers,
whose requests for lumbar artificial disc replacement
surgery were denied at any time within the applicable
statute of limitations, or whose requests for that surgery
will be denied in the future, on the ground that lumbar
artificial disc replacement is "Unproven". Excluded from
this Class are persons who are members of the de novo class
certified in Hill v. UnitedHealthCare Insurance Company,
Case No. SACV15-00526 DOC (RNBx); and
* All persons covered under fully insured health plans,
insured and administered by UnitedHealth Group, Inc.,
through its wholly-owned or controlled subsidiaries,
including UnitedHealthCare Insurance Company and United
HealthCare Services, Inc., issued to private employers,
whose requests for lumbar artificial disc replacement
surgery were denied at any time within the applicable
statute of limitations, or whose requests for that surgery
will be denied in the future, on the ground that lumbar
artificial disc replacement is "Unproven". Excluded from
this Class are persons who are members of the de novo class
certified in Hill v. UnitedHealthCare Insurance Company,
Case No. SACV15-00526 DOC (RNBx).
Plaintiff Byron Hack concurrently moves and does move for leave to
file a First Amended Complaint in order to add Tom Donney as a
class representative in this matter. The purpose of adding Mr.
Donney is to moot any potential typicality or adequacy issues
affecting the claims of the existing Lead Plaintiff, Byron Hack.
The Plaintiffs also ask the Court to appoint them as class
representatives and appoint their counsel as Class Counsel.[CC]
Plaintiffs JENEE HILL and BYRON HACK, on behalf of themselves and
all others similarly situated, are represented by:
Robert S. Gianelli, Esq.
Joshua S. Davis, Esq.
Adrian J. Barrio, Esq.
GIANELLI & MORRIS, A LAW CORPORATION
550 South Hope Street, Suite 1645
Los Angeles, CA 90071
Telephone: (213) 489-1600
Facsimile: (213) 489-1611
E-mail: rob.gianelli@gmlawyers.com
joshua.davis@gmlawyers.com
adrian.barrio@gmlawyers.com
Plaintiff JENEE HILL, on behalf of herself and all others similarly
situated, is represented by:
Glenn R. Kantor, Esq.
KANTOR & KANTOR LLP
19839 Nordhoff Street
Northridge, CA 91324
Telephone: (818) 886-2525
Facsimile: (818) 350-6272
E-mail: gkantor@kantorlaw.net
trozelle@kantorlaw.net
VERITIV OPERATING: Arbitration Ruling in Pereyda Suit Partly Okayed
-------------------------------------------------------------------
In the case, FRANK PEREYDA, Plaintiffs and Respondents, v. VERITIV
OPERATING COMPANY, Defendants and Appellants, Case No. D073208
(Cal. App.), Judge Judith L. Haller of the Court of Appeals of
California for the Fourth District, Division One, affirmed in part
and reversed in part the trial court's order denying Veritiv's
motion to compel Plaintiffs Pereyda, Alan French, and Lupe Ramirez
to arbitrate their claims.
Five employees sued their employers, Veritiv Operating Co. and
Veritiv Corp., alleging wage and hour violations on behalf of
themselves and a class of similarly situated workers, and seeking
penalties under the Private Attorney General Act of 2004 ("PAGA").
With respect to three of these Plaintiffs (Pereyda, French, and
Ramirez), Veritiv moved to dismiss the class claims and to compel
individual arbitration on the non-PAGA claims. The court denied
the motion based primarily on its finding that Veritiv did not
prove these Plaintiffs had agreed to arbitrate their claims.
Veritiv appeals the Order. Veritiv contends the court erred in
refusing to order each of the three Plaintiffs to individual
arbitration on their non-PAGA claims because each agreed to be
bound by the Unisource Arbitration Agreement and the agreement
governs the current disputes between Veritiv (Unisource's
successor) and Veritiv's employees.
Judge Haller finds that in any event, the court's written ruling
reflects that it did not rely solely on the deficiencies in the
initial declaration of Douglas DeCaire, a general manager of
Veritiv Operating, to reach its factual conclusion. Specifically,
the court found Unisource did have a policy of requiring employees
to sign arbitration agreements, but was unwilling to assume this
policy was followed as to Ramirez. This conclusion was reasonable,
particularly given Ramirez's denials that she signed the agreement;
the absence of a signed acknowledgement form; and a lack of any
evidence showing Unisource adhered to certain procedures for
confirming each employee had signed the acknowledgement form. In
the end, it was Veritiv's burden to show Ramirez had agreed to
arbitration. The court had an ample basis to find that Veritiv did
not satisfy this burden.
In light of her determination that substantial evidence supports
the court's conclusion that the signature on the acknowledgement
form was not French's signature and that the court's failure to
consider certain evidence was not prejudicial, the Judge rejects
Veritiv's suggestion that the Court should reconsider the facts to
reach its own factual determination. The Judge holds that the
Court does not reweigh the evidence and must draw all reasonable
inferences in support of the court's factual conclusions. The fact
the evidence could have supported a contrary finding has no bearing
on this substantial evidence analysis. Conflicts and even testimony
which is subject to justifiable suspicion do not justify the
reversal of a judgment, for it is the exclusive province of the
trial judge or jury to determine the credibility of a witness and
the truth or falsity of the facts upon which a determination
depends.
Finally, the Judge finds that the court erred in refusing to order
Pereyda's non-PAGA claims to arbitration and enforcing Pereyda's
class action waiver contained in the arbitration agreement to which
he agreed. Veritiv requests that the Court issues orders staying
the litigation of the French and Ramirez claims pending the
resolution of Pereyda's arbitration proceedings. She declines to
do so. This is a matter for the trial court in the first instance.
Judge Haller vacated the Court's Nov. 17, 2017 order denying
Veritiv's motion to compel arbitration of the claims asserted by
Plaintiffs Pereyda, French, and Ramirez. She entered a new order
denying Veritiv's motion to compel arbitration of all claims
asserted by Plaintiffs French and Ramirez and denying Veritiv's
request that their class claims be dismissed. She also entered a
new order granting Veritiv's motion to compel arbitration on an
individual basis of all claims asserted by Pereyda, except for the
PAGA claims. She dismissed Pereyda as a named Plaintiff in the
class claims and will determine whether to stay Pereyda's PAGA
litigation pending the completion of the arbitration of his
individual claims.
The parties are to bear their own costs.
A full-text copy of the Court's Feb. 27, 2019 Opinion is available
at https://is.gd/5Zp1ri from Leagle.com.
Seyfarth Shaw, Timothy M. Rusche -- trusche@seyfarth.com -- Timothy
M. Fisher -- tfisher@seyfarth.com -- and Kiran A. Seldon --
kseldon@seyfarth.com -- for Defendants and Appellants.
AMARTIN LAW and Alisa A. Martin, for Plaintiffs and Respondents.
VICTORIA: Class Action Mulled Over Bellarine Cancer Rates
---------------------------------------------------------
Benjamin Preiss, writing for Sydney Morning Herald, reports that a
law firm has hit out at the Victorian chief health officer's
investigation of cancer rates on the Bellarine Peninsula where a
worrying number of young adults have died in recent years.
Gordon Legal, which has an office in Geelong, confirmed it had been
approached by up to 10 families who had been affected by cancer in
the region.
The firm says the chief health officer's report into "potential
cancer clusters" and the historical use of agricultural pesticides
in the area had failed to address the concerns of many community
members about a possible connection between cancer and pesticides.
Gordon Legal's principal lawyer Rachel Schutze said the report had
found no unusual excess of cancers associated with the chemical
dieldrin but criticised the "robustness of the data" in the report
and its conclusion.
The law firm has written to the chief health officer outlining its
concerns.
"We simply need more information on the circumstances surrounding
all of these people from the Bellarine getting sick," Ms Schutze
said.
A spate of young people aged in their 20s and 30s who lived in the
area have died in recent years from illnesses such as lymphoma and
other blood cancers.
A spokesman for the Department of Health and Human Services said it
was already following up concerns raised by some residents at an
"open house".
"It is important to note that international research has not found
strong evidence that dieldrin causes the cancers of concern to the
residents, and the chief health officer report did not find
increased rates of those cancer," he said.
However, the community concerns could ultimately result in a class
action led by Gordon Legal although that is considered a long way
off, if it was to proceed.
In January the chief health officer released a report that found no
evidence of higher numbers of specific cancers, including breast,
liver, non-Hodgkin lymphoma, multiple myeloma, brain cancers and
leukaemia than would be expected.
The report said dieldrin had not been identified "as an agent that
results in the cancers cited in the media."
The Age first reported the concerns about possible cancer clusters
in December last year. However, people who live in the Bellarine
Peninsula believe there may be more cases of cancer than initially
thought. [GN]
VOYA FINANCIAL: Advance Trust's COI Class Suit in Minn. Ongoing
---------------------------------------------------------------
Voya Financial, Inc. said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on February 22, 2019, for
the fiscal year ended December 31, 2018, that the company continues
to defend a putative class action styled, Advance Trust & Life
Escrow Services, LTA v. ReliaStar Life Insurance Company (USDC
District of Minnesota, No. 1:18-cv-02863).
On October 6, 2018, the Company received Advance Trust & Life
Escrow Services, LTA v. ReliaStar Life Insurance Company (USDC
District of Minnesota, No. 1:18-cv-02863) (filed October 5, 2018),
a putative class action in which Plaintiff alleges that the
Company's universal life insurance policies only permitted the
Company to rely upon the policyholders' expected future mortality
experience to establish the cost of insurance, and that as
projected mortality experience improved, the policy language
required the Company to decrease the cost of insurance.
Plaintiff alleges that the Company did not decrease the cost of
insurance as required, thereby breaching its contract with its
policyholders, and seeks class certification.
The Company denies the allegations in the complaint, believes the
complaint to be without merit, and will defend the lawsuit
vigorously.
No further updates were provided in the Company's SEC report.
Voya Financial, Inc. operates as a retirement, investment, and
employee benefits company in the United States. It operates through
four segments: Retirement, Investment Management, Employee
Benefits, and Individual Life. The company was formerly known as
ING U.S., Inc. and changed its name to Voya Financial, Inc. in
April 2014. Voya Financial, Inc. was incorporated in 1999 and is
based in New York, New York.
VOYA FINANCIAL: Awaits Court OK on Bid to Drop Barnes Suit
----------------------------------------------------------
Voya Financial, Inc. said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on February 22, 2019, for
the fiscal year ended December 31, 2018, that its motion to dismiss
the class action lawsuit entitled, Barnes v. Security Life of
Denver, remains pending.
Cost of insurance litigation also includes Barnes v. Security Life
of Denver (USDC District of Colorado, No. 1:18-cv-00718) (filed
March 27, 2018).
A putative class action in which the plaintiff alleges that his
insurance policy only permitted the Company to rely upon his
expected future mortality experience to establish and increase his
cost of insurance, but the Company instead relied upon other,
non-disclosed factors to do so.
Plaintiff alleges breach of contract and conversion claims against
the Company and also seeks declaratory relief.
The Company denies the allegations in the complaint, believes the
complaint to be without merit, and intends to defend the matter
vigorously.
On May 15, 2018, the Company moved to dismiss the conversion claim
from the complaint. Plaintiff has opposed the motion.
The parties await the court's decision.
Voya Financial, Inc. operates as a retirement, investment, and
employee benefits company in the United States. It operates through
four segments: Retirement, Investment Management, Employee
Benefits, and Individual Life. The company was formerly known as
ING U.S., Inc. and changed its name to Voya Financial, Inc. in
April 2014. Voya Financial, Inc. was incorporated in 1999 and is
based in New York, New York.
VOYA FINANCIAL: Bid to Nix Amended Goetz Complaint Still Pending
----------------------------------------------------------------
Voya Financial, Inc. said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on February 22, 2019, for
the fiscal year ended December 31, 2018, that its motion to dismiss
the complaint in the case, Goetz v. Voya Financial and Voya
Retirement Insurance and Annuity Company (USDC District of
Delaware, No. 1:17-cv-1289) (filed September 8, 2017), is still
pending.
A putative class action in which plaintiff, a participant in a
401(k) plan, seeks to represent other participants in the plan as
well as a class of similarly situated plans that "contract with
[Voya] for recordkeeping and other services."
Plaintiff alleges that "Voya" breached its fiduciary duty to the
plan and other plan participants by charging unreasonable and
excessive recordkeeping fees, and that "Voya" distributed
materially false and misleading 404a-5 administrative and fund fee
disclosures to conceal its excessive fees.
The Company denies the allegations, which it believes are without
merit, and intends to defend the case vigorously.
Plaintiff filed an amended complaint on January 4, 2018, and the
Company filed a motion to dismiss the amended complaint on February
8, 2018.
No further updates were provided in the Company's SEC report.
Voya Financial, Inc. operates as a retirement, investment, and
employee benefits company in the United States. It operates through
four segments: Retirement, Investment Management, Employee
Benefits, and Individual Life. The company was formerly known as
ING U.S., Inc. and changed its name to Voya Financial, Inc. in
April 2014. Voya Financial, Inc. was incorporated in 1999 and is
based in New York, New York.
WALMART: Faces Class Action in Hawaii Over Kona Coffee Labeling
---------------------------------------------------------------
Keller and Heckman LLP, in an article for Lexology, reports that
Section 43(a) of the Lanham Act (15 U.S.C. 1125) permits a civil
action for, among other reasons, "false designation of origin." To
prevail, a plaintiff must prove the designation of origin is false,
that it is used in a commercial advertisement (e.g., a label) in
interstate commerce, that it deceives or is likely to deceive in a
material way, and it has caused or is likely to cause competitive
or commercial injury to the plaintiff.
A group comprising all of the coffee farmers in the Kona District
of the Big Island of Hawaii filed a class action on February 27,
2019 in the U.S. District Court for the Western District of
Washington against the producers and sellers of 19 brands of coffee
that are identified as "Kona" but allegedly contain no Kona coffee
or only trace amounts. Defendants include sellers such as Walmart,
Costco, Amazon, Safeway, Kroger, Cost Plus/World Market, and Bed
Bath & Beyond as well as several producers based in Hawaii and in
the mainland. The plaintiffs point out that only 2.7 million
pounds of coffee are grown in the Kona region each year, but more
than 20 million pounds of coffee are labeled with the name and they
offer a report on analytical testing of trace metals in the
allegedly counterfeit coffee to prove that it was not produced in
the Kona region (which is said to yield coffee with a distinct
flavor profile that commands premium prices).
A Hawaiian newspaper reports that the attorneys representing the
Kona coffee growers in the Lanham Act lawsuit also plan to file
another class-action lawsuit based on the same claims on behalf of
consumers who bought allegedly fraudulent Kona coffee.
The designation of origin for Kona coffee can be distinguished from
the use of common cheese names which, as reported here, have been
the subject of longstanding trade disputes between the United
States and the European Union. Whereas "Kona" is clearly used to
indicate coffee grown in the Kona region of Hawaii, parmesan and
other some other names are used generically to indicate a specific
style of cheese and are not necessarily geographical indicators
that imply the cheese is produced in a certain place, such as
Parma, Italy. [GN]
WEIGHT WATCHERS: Robbins Geller Files Securities Class Action
-------------------------------------------------------------
Robbins Geller Rudman & Dowd LLP on March 4 disclosed that a class
action has been commenced on behalf of purchasers of Weight
Watchers International, Inc. (NASDAQ:WTW) common stock during the
period between May 4, 2018 and February 26, 2019 (the "Class
Period"). This action was filed in the Southern District of New
York and is captioned Potts v. Weight Watchers Int'l, Inc., et al.,
No. 19-cv-2005.
The Private Securities Litigation Reform Act of 1995 permits any
investor who purchased Weight Watchers common stock during the
Class Period to seek appointment as lead plaintiff. A lead
plaintiff acts on behalf of all other class members in directing
the litigation. The lead plaintiff can select a law firm of its
choice. An investor's ability to share in any potential future
recovery is not dependent upon serving as lead plaintiff. If you
wish to serve as lead plaintiff, you must move the Court no later
than 60 days from March 4, 2019. If you wish to discuss this action
or have any questions concerning this notice or your rights or
interests, please contact plaintiff's counsel, Samuel H. Rudman or
Mary K. Blasy of Robbins Geller at 800/449-4900 or 619/231-1058, or
via e-mail at djr@rgrdlaw.com. You can view a copy of the complaint
as filed at http://www.rgrdlaw.com/cases/wwinc/.
The complaint charges Weight Watchers, certain of its officers and
its controlling shareholder with violations of the Securities
Exchange Act of 1934. Weight Watchers is a subscription-based
commercial weight-management program that offers various products
and services to assist weight loss and maintenance
internationally.
The complaint alleges that during the Class Period, defendants made
false and misleading statements and/or failed to disclose adverse
information regarding Weight Watchers' business, operations and
prospects. Specifically, the complaint alleges defendants failed to
disclose that Weight Watchers was experiencing diminished
subscriber demand attributable to the onslaught of new competing
smartphone fitness apps, meal-delivery services, and other tech
advances that were driving down Weight Watchers' new subscriber
growth and its subscriber retention rates; that diminished
subscriber growth, when coupled with a much larger number of fourth
quarter subscription lapses than Weight Watchers typically
experienced, made it highly unlikely that the Company would retain
four million subscribers by the end of 2018; that Weight Watchers
was not on track to grow its subscriber count to five million or to
drive annual revenues to more than $2 billion by the end of 2020;
and that a decreased subscriber count would result in decreased
revenues and profits. As a result of defendants' false statements
and/or omissions, the price of Weight Watchers common stock was
artificially inflated to more than $103 per share during the Class
Period.
On November 1, 2018, Weight Watchers announced disappointing
financial results for the third quarter of 2018, ended September
30, 2018. Weight Watchers reported that it had lost 300,000
subscribers in the quarter, bringing its subscriber count down to
4.2 million, causing the Company's reported net revenues of $366
million to significantly underperform the $379 million defendants
had led the market to expect. On this news, the price of Weight
Watchers common stock declined almost 30%, to close at $48.13 per
share on November 2, 2018.
Then on February 26, 2019, after the close of trading, Weight
Watchers announced its financial results for the 2018 fourth
quarter and fiscal year. The fourth quarter subscriber count had
fallen again, this time to 3.9 million, and defendants admitted
that enrollment would continue declining during fiscal year 2019
("FY19"), with CEO Mindy Grossman conceding that even though
January is typically the best time for health-focused brands,
January had been a particularly "hard month" for Weight Watchers.
The Company said that it was now only targeting revenues of $1.4
billion during FY19, nowhere near the $2 billion in annual revenues
it had been projecting it would achieve by the end of 2020 and well
below the nearly $1.7 billion it had led the market to expect for
FY19. Weight Watchers also disclosed that it was now only targeting
earnings per share of $1.25 to $1.50 for FY19, far lower than the
$3.36 defendants had led the market to expect. The price of Weight
Watchers common stock declined 34% on this news, falling $10.20 per
share to close at $19.37 per share on February 27, 2019.
Plaintiff seeks to recover damages on behalf of all purchasers of
Weight Watchers common stock during the Class Period (the "Class").
The plaintiff is represented by Robbins Geller, which has extensive
experience in prosecuting investor class actions including actions
involving financial fraud.
Robbins Geller is one of the world's leading law firms representing
investors in securities litigation. With 200 lawyers in 10 offices,
Robbins Geller has obtained many of the largest securities class
action recoveries in history. For five consecutive years, ISS
Securities Class Action Services has ranked the Firm in its annual
SCAS Top 50 Report as one of the top law firms in both amount
recovered for shareholders and total number of class action
settlements. Robbins Geller attorneys have helped shape the
securities laws and recovered tens of billions of dollars on behalf
of aggrieved victims. Beyond securing financial recoveries for
defrauded investors, Robbins Geller also specializes in
implementing corporate governance reforms, helping to improve the
financial markets for investors worldwide. Please visit
http://www.rgrdlaw.comfor more information. [GN]
WELLS FARGO: Court Allows Filing of Cotton Class List Under Seal
----------------------------------------------------------------
In the case, In re: CHRISTOPHER DEE COTTON ALLISON HEDRICK COTTON,
Chapter 13, Debtors, CHRISTOPHER DEE COTTON and ALLISON HEDRICK
COTTON, on behalf of themselves and all others similarly-situated,
IGNACIO PEREZ, And GABRIELA PEREZ, On behalf of themselves and all
others similarly-situated, Plaintiffs, v. WELLS FARGO & CO. and
WELLS FARGO BANK, N.A., Defendants, Case No. 3:18-cv-00499-RJC,
Case No. 14-30287 (W.D. N.C.), Judge Robert J. Conrad, Jr. of the
U.S. District Court for the Western District of North Carolina,
Charlotte Division, granted the Plaintiffs' Unopposed Motion for
Leave to File Documents Under Seal.
The Plaintiffs may file the list of the names and addresses of all
the Class Members to whom the Settlement Administration sent the
class notice, as required by Section 7 of the class action
settlement agreement, under permanent seal.
A full-text copy of the Court's March 1, 2019 Order is available at
https://is.gd/Gxgw03 from Leagle.com.
Christopher Dee Cotton & Allison Hedrick Cotton, Plaintiffs,
represented by Abelardo Limon, Jr., Limon Law Office, pro hac vice,
Caitlyn Nicole Wells -- info123@kblawtx.com -- Kellett & Bartholow
PLLC, pro hac vice, Frederick Leigh Henderson, Jr., Sigmon &
Henderson, PLLC, Karen Lynn Kellett, Kellett & Bartholow PLLC, pro
hac vice, O. Max Gardner, III & Theodore O. Bartholow, III --
thad@kblawtx.com -- Kellett & Bartholow PLLC, pro hac vice.
Ignacio Perez & Gabriela Perez, Plaintiffs, represented by Karen
Lynn Kellett, Kellett & Bartholow PLLC, Theodore O. Bartholow, III,
Kellett & Bartholow PLLC, Caitlyn Nicole Wells, Kellett & Bartholow
PLLC & Frederick Leigh Henderson, Jr., Sigmon & Henderson, PLLC.
Wells Fargo & Co. & Wells Fargo Bank, N.A., Defendants, represented
by William Carter Mayberry -- bmayberry@mcguirewoods.com -- McGuire
Woods LLP.
WESTPAC: Common Funder Orders Legal, Federal Court Rules
--------------------------------------------------------
Grace Ormsby, writing for Lawyers Weekly, reports that common fund
orders are legal and not unconstitutional, as decided in a Federal
Court appeal by Westpac against an 85,000-strong customer class
action.
Shine Lawyers, who acted on behalf of any persons (and
superannuation funds) that had obtained insurance issued by Westpac
Life on the recommendation of financial advisers at Westpac, St
George Bank, Bank of Melbourne, BankSA, and BR Advice, called it a
"significant legal win for class action group members in accessing
justice".
The case was funded by JustKapital Litigation Pty Limited, and
Shine Lawyers said a common fund order had been sought to ensure
appropriate funding terms applied "so that all groups could benefit
from the funding support offered by the funder".
His Honourable Justice Michael Lee made that order in September
last year, which was then appealed by Westpac.
The March 1 Full Court decision to dismiss the appeal affirmed the
position and value in administering justice in class actions, Shine
Lawyers said.
The judgment found that judges have the power to make such orders
and such orders are consistent with the overall objective of the
class actions regime, with the Full Court awarding costs to Shine
Lawyers.
Shine Lawyers' national special counsel for class actions, Jan
Saddler, said the firm welcomed the Full Court decision "in making
a determination in relation to the very important issue Common Fund
Orders so that plaintiffs, group members and all interested
stakeholders now have a clear understanding of the position".
She said they "believe that common fund orders in open class
proceedings play an important part in protecting the interests of
and to ensure fairness for lead applicants and all group members".
Ms Saddler noted that the decision also supports the role of
litigation funders in class actions for increasing access to
justice "for the prosecution of genuine claims by plaintiffs who
would otherwise lack the resources to pursue a claim". [GN]
WILLIAM WARREN: Beatty Sues Over Unpaid Overtime Wages
------------------------------------------------------
Mariah Beatty, Zulma Madera and Martha Delgadillo, individuals, on
behalf of themselves and on behalf of all persons similarly
situated, Plaintiffs, v. William Warren Properties, Inc., a
California Corporation; and Does 1 through 50, Inclusive,
Defendants, Case No. 30-2019-01055704-CU-OE-CXC (Ca. Super. Ct.,
Orange Cty., March 8, 2019) requests recovery of all unpaid wages,
including overtime wages according to proof, interest, statutory
costs, as well as the assessment of any statutory penalties against
Defendant, in a sum as provided by the California Labor Code and/or
other applicable statutes.
The Defendant failed and continues to fail to accurately calculate
and pay Plaintiffs and the other members of the California Class
for their overtime worked, asserts the complaint. Defendant
unlawfully and unilaterally failed to accurately calculate wages
for overtime worked by Plaintiffs and other members of the
California Class in order to avoid paying these employees the
correct overtime compensation. As a result, Plaintiffs and the
other members of the California Class forfeited wages due them for
working overtime without compensation at the correct overtime
rates, adds the complaint.
Plaintiffs were employed by the Defendant in California as
non-exempt employee from September 2013 to May 2018.
William Warren Properties, Inc. is a California corporation with
its principal place of business located in Santa Monica,
California.[BN]
The Plaintiffs are represented by:
Norman B. Blumenthal, Esq.
Kyle R. Nordrehaug, Esq.
Aparajit Bhowmik, Esq.
BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW LLP
2255 Calle Clara
La Jolla, CA 9203 7
Phone: (858)551-1223
Facsimile: (858) 551-1232
Website: www.bamlawca.com
WUXI PHARMATECH: Faces Securities Class Action
----------------------------------------------
The Schall Law Firm, a national shareholder rights litigation firm,
on March 4 announced the filing of a class action lawsuit against
WuXi PharmaTech (Cayman) Inc. ("WuXi" or "the Company") (NYSE: WX)
for violations of Secs. 10(b) and 20(a) of the Securities Exchange
Act of 1934 and Rule 10b-5 promulgated thereunder by the U.S.
Securities and Exchange Commission.
Investors who purchased the Company's shares between September 1,
2015 and December 10, 2015, inclusive (the ″Class Period″), are
encouraged to contact the firm before April 23, 2019.
We also encourage you to contact Brian Schall, or Sherin Mahdavian,
of the Schall Law Firm, 1880 Century Park East, Suite 404, Los
Angeles, CA 90067, at 424-303-1964, to discuss your rights free of
charge. You can also reach us through the firm's website at
www.schallfirm.com, or by email at brian@schallfirm.com.
The class, in this case, has not yet been certified, and until
certification occurs, you are not represented by an attorney. If
you choose to take no action, you can remain an absent class
member.
According to the Complaint, the Company made false and misleading
statements to the market. WuXi failed to provide material
information and made misrepresentations in public statements to
investors, making it impossible for them to make an informed
decision about the proposed merger between the Company and New WuXi
Life Science Limited and WuXi Merger Limited for approximately
$3.62 billion. The Company planned to spin-off the subsidiaries as
publicly-traded entities for their own gain. Based on these facts,
the Company's public statements were false and materially
misleading throughout the class period. When the market learned the
truth about WuXi, investors suffered damages.
Join the case to recover your losses.
The Schall Law Firm represents investors around the world and
specializes in securities class action lawsuits and shareholder
rights litigation. [GN]
XEROX CORP: Shareholders' Bid to Revive Merger Suit Claims Nixed
----------------------------------------------------------------
Xerox Corporation said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on February 25, 2019, for the
fiscal year ended December 31, 2018, that the Supreme Court of the
State of New York, Appellate Division, has denied the request of
putative class plaintiffs to reinstate certain claims related to a
merger deal between the company and FUJIFILM Holdings Corporation.
In February 2018, five complaints, including four putative class
actions (which have been consolidated), were filed by Xerox
shareholders in the Supreme Court of the State of New York County,
in connection with the proposed transaction to combine Xerox and
Fuji Xerox.
All of the complaints name as defendants Xerox, its directors, and
Fujifilm. The complaint in one of the actions also names as a
defendant Ursula M. Burns, the former Chief Executive Officer of
Xerox. The plaintiffs allege, among other things, that Xerox's
directors breached their fiduciary duties in negotiating,
approving, and purportedly making false and misleading disclosures
about the Fuji Transaction, and that Fujifilm aided and abetted
those breaches.
The complaint in one of the actions further alleges that Xerox and
the director defendants engaged in common law fraud by purportedly
failing to disclose information about the joint venture agreements
between Xerox and Fujifilm. The Fuji Transaction Shareholder
Lawsuits seek injunctive relief preventing the previously proposed
transactions, and/or additional disclosures by Xerox's directors,
unspecified damages from Xerox's directors, costs and attorneys'
fees, as well as other relief.
One of the Fuji Transaction Shareholder Lawsuits was brought by
Darwin Deason, a Xerox shareholder ("Deason I"). Another complaint
was filed by Mr. Deason against Xerox and its directors in the same
Court on March 2, 2018 ("Deason II") alleging that defendants
breached their fiduciary duties by refusing Mr. Deason's request
for a waiver of the deadline for nomination of a new slate of Xerox
directors. In Deason II, Mr. Deason sought to enjoin Xerox and its
directors from enforcing Xerox's advance notice by-laws, thereby
allowing Mr. Deason to proceed with the nominations, as well as
costs, fees, and other relief.
On April 27, 2018, the Court issued decisions and orders granting
plaintiffs' preliminary injunction motions, which (i) enjoined
Xerox from "taking any further action to consummate the change of
control transaction between Xerox and Fuji that was announced on
January 31, 2018 pending a final determination of the claims
asserted in the underlying action;" (ii) enjoined Xerox from
enforcing its advance notice bylaw provision requiring shareholders
to nominate directors for election at the 2018 annual shareholder
meeting by December 11, 2017; and (iii) required Xerox to waive
such advance notice bylaw provision to permit the noticing of a
slate of director nominees for election at the 2018 annual
shareholder meeting, and denying defendants' motions to dismiss.
On May 1, 2018, Xerox entered into a Director Appointment,
Nomination and Settlement Agreement (the "Initial Settlement
Agreement") with Mr. Deason and Carl C. Icahn and certain of his
affiliates who were also Xerox shareholders (the "Icahn Group"),
among others, that would have resolved Deason I, Deason II and the
pending proxy contest in connection with Xerox's 2018 Annual
Meeting of Shareholders. The Initial Settlement Agreement expired
by its terms on May 3, 2018 without becoming effective.
On May 7, 2018, defendants filed with the Supreme Court of the
State of New York, Appellate Division, First Judicial Department,
notices of appeal of, and motions to stay pending appeal, the lower
Court's decision and order.
Defendants also moved the appellate court for interim relief
ordering that the appeal be heard on an expedited basis. At a
hearing before the appellate court on May 7, 2018, the appellate
court ruled that the appeals would be heard on an expedited basis
and granted a partial interim stay allowing Xerox and Fujifilm to
take steps to seek regulatory approvals related to the Fuji
Transaction pending a ruling from the appellate court on
defendants' motions to stay pending appeal.
On May 13, 2018, a second Director Appointment, Nomination and
Settlement Agreement (the "Final Settlement Agreement") with
respect to Deason I, Deason II and the pending proxy contest in
connection with Xerox's 2018 Annual Meeting of Shareholders that
was initiated by the Icahn Group was signed on behalf of Mr.
Deason, the Icahn Group and all defendants except Fujifilm, and a
memorandum of understanding regarding settlement of the putative
class case was signed by all defendants except Fujifilm.
Pursuant to the settlements, the settling defendants withdrew their
appeal and motion to stay in Deason I and Deason II. The settling
defendants also withdrew their motion to stay in the putative class
case. The Court entered a stipulation of discontinuance as to the
settling parties in Deason II on May 14, 2018, and agreed on June
22, 2018 to do the same in Deason I.
On June 14, 2018, Fujifilm filed answers in Deason I and the
putative class case, along with cross-claims against the members of
the Xerox Board (as constituted before May 13, 2018) and a
third-party complaint against Xerox director Jonathan Christodoro,
seeking contribution for any potential award against Fujifilm for
aiding and abetting purported breaches of fiduciary duties.
On June 19, 2018, the putative class plaintiffs filed a motion for
preliminary approval of a stipulation of settlement that would
resolve the claims asserted by the plaintiffs in the putative class
case against all defendants, other than Fujifilm.
Carmen Ribbe, the plaintiff in the derivative action, and Fujifilm
filed oppositions to the motion on July 10, 2018.
On June 22, 2018, the Court entered an order denying a joint motion
by the putative class plaintiffs and the settling defendants to
dissolve the injunction in the putative class case as against the
settling defendants, and entered an order denying Fujifilm's motion
to dissolve the injunctions in the putative class case and Deason I
in their entirety.
On July 16, 2018, the Court held a hearing concerning the putative
class plaintiffs' motion for preliminary approval of the settlement
in the putative class case. The Court indicated that it was not
inclined to consider motions for approval of the settlement prior
to considering whether the putative class should be certified.
On August 2, 2018, the Appellate Division entered orders
recognizing the Xerox defendants' withdrawal of their appeal in the
Deason cases and denying all appellants' motions to stay pending
determination of appeals in the Deason and putative class cases.
On August 2, 2018, the Appellate Division entered orders (i) at
their request, deeming withdrawn the Xerox defendants' appeal and
motion to stay in the Deason cases; (ii) upon their request,
deeming withdrawn the Xerox defendants' motion to stay, pending
determination of appeal, the putative class case; and (iii) denying
Fujifilm's motion to stay pending determination of its appeals in
the Deason and putative case cases.
On September 21, 2018, putative class plaintiffs filed a motion for
certification of a settlement class and a motion to transmit notice
of the proposed settlement to the proposed class.
On October 17, 2018, derivative plaintiff Carmen Ribbe and Fujifilm
filed oppositions to the putative class plaintiffs' motion to
transmit notice to the proposed class. The class has not yet been
certified, and preliminary approval has not been granted.
The Appellate Division heard oral argument on September 25, 2018 on
Fujifilm's appeal of the Court's decision. On October 16, 2018, the
Appellate Division entered a decision and order reversing the
Court's rulings, ordering that the claims brought against Fujifilm
in the cases by Mr. Deason and the purported class be dismissed,
and further ordering that the preliminary injunction of the
proposed Fuji Transaction be dissolved (the "Appellate Decision and
Order").
On November 15, 2018, the putative class plaintiffs filed with the
Appellate Division a motion seeking the opportunity to reargue
Fujifilm's appeal or, in the alternative, for leave to appeal the
Appellate Decision and Order to the New York State Court of
Appeals.
On December 6, 2018, pursuant to the Appellate Decision and Order,
the Court entered a judgment dismissing the complaints against
Fujifilm in Deason I and the putative class case. The Court further
issued orders denying the putative class plaintiffs' motion for
class certification, without prejudice to renewing the motion after
the outcome of any appeals of the Appellate Decision and Order.
On January 8, 2019, the Court entered an order staying all further
proceedings in Deason I and the putative class case until thirty
days after exhaustion of appeals, including any appeals to the New
York State Court of Appeals, of the Appellate Decision and Order.
On January 9, 2019, the Court entered an order denying the putative
class plaintiffs' motion to transmit notice to the proposed class,
without prejudice to renewal of their motion at a later time.
On October 31, 2018 and January 3, 2019, respectively, Xerox and
the Xerox director defendants in the putative class case filed with
the Appellate Division a request and motion seeking an extension,
until after any decision regarding approval of settlement of the
putative class action, of the deadline by which to perfect their
appeal of the Court's April 27, 2018 decision and order.
On February 21, 2019, the Appellate Division issued an order
denying the putative class plaintiffs' motion seeking to reargue
Fujifilm's appeal or, in the alternative, for leave to appeal the
Appellate Decision and Order to the New York State Court of
Appeals.
Xerox will vigorously defend these lawsuits to the extent that the
proceedings continue as to Xerox. At this time, however, it is
premature to make any conclusion regarding the probability of
incurring material losses in these lawsuits. Should developments
cause a change in the company's determination as to an unfavorable
outcome, or result in a final adverse judgment or settlement, there
could be a material adverse effect on the company's results of
operations, cash flows and financial position in the period in
which such change in determination, judgment, or settlement
occurs.
Xerox Corporation designs, develops, and sells document management
systems and solutions worldwide. It offers intelligent workplace
services, including managed print services; digitization services;
and digital solutions, such as workflow automation, personalization
and communication software, and content management. Xerox
Corporation was founded in 1906 and is headquartered in Norwalk,
Connecticut.
[*] Class Action Filings v. Food Beverage Companies Up 9% in 2018
-----------------------------------------------------------------
Elaine Watson, writing for Food Navigator, reports that the number
of class action filings against food and beverage companies rose 9%
to 158 in 2018, with firms vulnerable to legal action on a host of
fronts, from slack fill to natural claims, says law firm Perkins
Coie. [GN]
[*] ILR Publishes Report on Broken Securities Class Action System
-----------------------------------------------------------------
Shearman & Sterling LLP, in an article for Mondaq, reports that on
February 25, 2019, the U.S. Chamber of Commerce's Institute of
Legal Reform (the "ILR") published a report entitled "Containing
the Contagion: Proposals to Reform the Broken Securities Class
Action System" (the "Report"). The Report describes various trends
and problems affecting the securities class action system, which
have led to the filing of securities cases "reaching levels not
seen since before the enactment of the Private Securities
Litigation Reform Act (PSLRA) in 1995." According to the Report,
the three main drivers of the steep increase in securities
litigation filings are: (1) cases alleging misstatements in
connection with M&A activity; (2) so-called "event-driven
litigation," whereby securities class actions are triggered by
unexpected adverse events, such as fires, explosions, data
breaches, and the like; and (3) the U.S. Supreme Court's decision
in Cyan Inc. v. Beaver County Employees Retirement Fund (138 S. Ct.
1061 (2018)). [GN]
[*] Worker Misclassification Class Actions on the Rise in Canada
----------------------------------------------------------------
Barry Kuretzky, Esq. -- bkuretzky@littler.com -- and Rhonda B.
Levy, Esq. -- rlevy@littler.com -- of Littler Mendelson, in an
article for Mondaq, report that it appears there is a movement
afoot in Ontario to change behavior around the classification of
employees as independent contractors. Beginning in 2015, we began
to see a number of class action lawsuits that allege
misclassification and claim significant monetary liability. They
include claims for employee entitlements under the Employment
Standards Act, 2000 (ESA), including minimum wage, overtime pay,
vacation pay, public holiday pay, and premium pay; claims for
Canada Pension Plan and Employment Insurance contributions owed to
employees; claims for adverse tax consequences sustained by
employees as a result of the alleged misclassification; and claims
for general, punitive, aggravated, and exemplary damages.
In addition to creating a risk of significant financial exposure
for the defendant companies, these lawsuits often result in damage
to their reputations in the media. Media attention also has the
effect of encouraging others who believe they have been incorrectly
classified to jump on the class action bandwagon.
The jurisprudence in these cases has not yet developed beyond the
legal issues to be decided at the certification stage. If the
courts find in favour of the plaintiffs when the substantive issues
are finally litigated, employers that are misclassifying employees
as independent contractors could be vulnerable to significant
financial liability. In 2019, we expect to have at least one
decision on the merits to look to for guidance.
Class Action Proceedings in Ontario Alleging the Misclassification
of Employees as Independent Contractors
The class action proceedings in Ontario alleging the
misclassification of employees as independent contractors suggest
that it is not just start-up and gig economy employees who are
alleging misclassification. The lawsuits indicate that established
companies with significant workforces are not immune to such
claims.
To date, there have been five class action lawsuits in Ontario
alleging the misclassification of employees as independent
contractors. The first lawsuit was filed in the spring of 2015,
and the most recent lawsuit was filed in the fall of 2018. We
suspect there may be more to come. Individuals covered by the
classes in these lawsuits vary widely. They include door-to-door
sales agents, food delivery drivers, lawyers, teachers, and
television production workers. In addition to claims for benefits
and protections of the ESA, the quantum of damages claimed for the
classes in these lawsuits range from $30 million to $200 million,
in claims for some or all of general, punitive, aggravated, and
exemplary damages. Two of the class actions have already been
certified. A summary judgment motion is scheduled to be heard in
June 2019 with respect to one of them, and the decision rendered
will be the first on the merits. At this time, neither a trial
date nor a motion date has been set for the other certified class
action. The remaining class action lawsuits are putative class
actions, meaning that it remains to be seen if the courts will
decide that they merit certification. A certification motion was
heard in February 2019 regarding one of the putative class actions;
however the court's decision has not been released.
Distinguishing Between an Independent Contractor and an Employee
The courts have developed tests that examine the substance of the
relationship between the worker and the business for the purpose of
determining whether the worker is an employee or an independent
contractor. A single factor will not determine the nature of the
relationship; a court will look at the nature of the relationship
in its totality. The following are some of the characteristics
that will be considered when the class actions discussed above are
considered on their merits:
Does the business exercise control over the worker's activities
(where, when, and how the work is performed)? If so, the worker is
more likely to be an employee.
Does the worker provide his own tools and equipment? If so, the
worker is more likely to be an independent contractor.
Has the worker taken a financial risk and is there opportunity to
share in the profit? If so, the worker is more likely to be an
independent contractor.
Is the worker integrated into the business' operations (does he
perform essential functions for the business)? If so, the worker
is more likely to be an employee.
Is the worker's ability to perform work for others restricted? If
so, the worker is more likely to be an employee.
Does the worker have the power to delegate work to others or hire
helpers? If so, the worker is more likely to be an independent
contractor.
Although the title of the parties' agreement and its language may
suggest that the intention was to create an independent contractor
agreement, a court will weigh the factors listed above to determine
whether the substance of the relationship is consistent with that
intention.
Who Has the Onus of Proving that a Worker is Not an Employee?
Effective November 27, 2017, Bill 148, Fair Workplaces, Better Jobs
Act, 2017 amended the ESA by placing the burden on the employer to
prove that a worker is not an employee for the purposes of the ESA.
This reversal of the onus did not last long; when a new government
was elected, it announced that pursuant to Bill 47, Making Ontario
Open for Business Act, the burden of proving that a worker is an
employee would revert back to the employee effective January 1,
2019.
What Is the Bottom Line for Companies in Ontario?
Companies in Ontario that engage workers to provide services may be
vulnerable to significant liability if the workers are
inappropriately treated as independent contractors rather than
employees. To avoid liability in such cases, the companies must
not assume that a court would consider their view of the nature of
the relationship determinative of the issue. Titling a hiring
agreement an "Independent Contractor Agreement" will not be
persuasive if the tests the courts have established cannot be
satisfied in favour of an independent contractor finding. To help
avoid liability for misclassification, when companies enter into
relationships with workers, they should actively ensure that the
arrangement satisfies the criteria the courts have identified as
indicative of an independent contractor arrangement; the language
of the hiring agreement should be consistent with such a finding.
In addition, as part of a risk assessment exercise, companies that
already have workers who are classified as independent contractors
should proactively review both the workers' agreements and the
substantive nature of their relationship. The prompt correction of
an incorrect classification may help a company avoid or diminish
significant financial liability. Finally, as we expect at least
one class action proceeding in 2019 to substantively determine
whether employees were misclassified as independent contractors, we
strongly encourage Ontario companies with workers who have been
designated independent contractors to watch vigilantly as these
developments unfold. [GN]
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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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