/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/190409.mbx C L A S S A C T I O N R E P O R T E R Tuesday, April 9, 2019, Vol. 21, No. 71 Headlines 180 TENTH HOTEL: Faces Lopez ADA Suit in S.D. New York ABBVIE INC: Suppressed Market Competition for Humira, Union Claims ABC PHONES: Chavarin-Aguilar Suit Removed to C.D. California ACE ATTORNEY: Underpays Couriers, Diaz Suit Alleges ALBERTSON'S LLC: Raziano et al. Seek Unpaid Compensation ALTICE TECHNICAL: Mingo Sues over Alleged Improper Wage Practices APPLE INC: Court Narrows Claims in iPhone Touchscreen Defect Suit AXOGEN INC: Continues to Defend Einhorn Class Action BANK OF AMERICA: Dallas Employees Trust Asserts Sherman Act Breach BANK OF AMERICA: Mortgage Lenders Wins Certification of OT Suit BDJ TRUCKING: Yata et al. Seek to Certify Equipment Lessee Class BILATERAL CREDIT: Del Moral Asserts Breach of FDCPA BONNIER CORPORATION: Friske Seeks to Certify Subscribers Class BRIDGEPOINT EDUCATION: May 10 Lead Plaintiff Motion Deadline Set BRITISH AMERICAN: Jones Suit v. American Tobacco Still Dormant BURLINGTON COAT: Fails to Pay Proper Wages, Thames Suit Alleges CAMPING WORLD: Geis Securities Class Action in Illinois Underway CARILLON TOWER: Yao Seeks to Certify Class of Chinese Nationals CHARTER COMMUNICATIONS: Davis Seeks Unpaid Overtime Wages CHICO'S FAS: Court Shelves Altman Settlement CHILDREN'S PLACE: Rael Class Action Remains Stayed CLEAR CHANNEL: Settlement of GAMCO Asset Management Suit Approved CLOSET CANDY: Mclean Sues for Invasion of Privacy, Harassment COLGATE ENTERPRISE: Faces Amay Suit over Labor Law Violations CORIZON HEALTH: Court Narrows Claims in B. Morrelli's FLSA Suit CRAIG MCKENZIE: Gruber Files Class Action in Minnesota CV SCIENCES: Bid to Dismiss Consolidated Smith Class Suit Underway CVR REFINING: Bought Common Unitholders on the Cheap, Barai Says CVR REFINING: Mikulich Contests Public Common Unitholders' Buyout CVS PHARMACY: Tashjian Sues over Solicitation of Prescriptions DECKERS OUTDOOR: Rivera Files Class Suit in Cal. Super. Ct. DEL TACO: Discovery Still Ongoing in Former Calif. Employee Suit DIPLOMAT PHARMACY: Still Defends Class Action in Michigan DOYLE MOVING: Rodriguez Seeks Wages & Overtime for Laborers ESSEX 123 INC: Fails to Pay Proper Wages, Romero et al. Claim FARMLAND PARTNERS: April 15 Deadline to Answer Amended Complaint FIAT CHRYSLER: Faces Maccariella Suit Over Vehicle Emission Issues FOCAL POINT: Fuentes Suit Asserts BIPA Violation FREEDOM BOAT: Donde Sues Over Illegal Telemarketing Practices FRY'S ELECTRONICS: Traynor Sues Over Blind-Inaccessible Website FUBU: Traynor Files Class Action Under ADA GENIE ENERGY: IDT Energy Still Defends Mackey & Hernandez Suit GLOBAL MANAGEMENT: Underpays Cooks, Niwano Suit Alleges GOLDEN STATE OVERNIGHT: Underpays Drivers, Laguna Suit Alleges GOULET PEN: Traynor Files ADA Suit in S.D. New York GRUBHUB: Faces Class Action Over "Sham Telephone Orders" HAMILTON BANCORP: Faces Parshall Class Action HD SUPPLY: Discovery Ongoing in Shareholders Class Suit in Georgia HILLS PET NUTRITION: Faces Brown Suit in District of Kansas HLO COLLECTION: Schmidt Alleges Violation under FDCPA HOAMBRECKER ENTERPRISES: Molloy Seeks Wage & Overtime Pay HOT TOPIC: Soukhaphonh Seeks to Certify Class & Subclass HOTEL ON RIVINGTON: Lopez Files ADA Class Action in NY HUMANA AT HOME: Court Certifies 4 FLSA Classes INTEGRATED TECH: Monplaisir et al Seek Unpaid Wages for Technicians J & L FIBER SERVICES: Angel Alleges Unlawful Compensation System JKR PROPERTY: Violates ADA, Lopez Suit Asserts JOHN TILLEY: Rhodes Files Prisoner Civil Rights Suit in Kentucky JOHN'S COFFEE: Rivera Seeks Minimum Wage and Overtime Pay LA BOOM: Court Denies Summary Judgment in R. Duran's Suit LEX HOTEL: Lopez Suit Asserts Disabilities Act Breach LIVANOVA PLC: Faces 210 Claims at March 18 over 3T Device Defect LONG BEACH, CA: Demurrer to Evidence in W. Marquez's Suit Reversed LYFT INC: Oliver Sues over Unauthorized Text Messages MAMMOTH ENERGY: Still Faces Putative Class Action in Puerto Rico MARRIOTT INTERNATIONAL: Boyd Sues Over Data Breach MARRIOTT INTERNATIONAL: Murphy Suit Moved to District of Maryland MARRIOTT INTERNATIONAL: Raab Suit Moved to District of Maryland MBI ENERGY: Overtime Compensation for Wireline Engineers Sought METROPOLITAN LIFE: 9th Circuit Appeal in Martin Suit Still Pending METROPOLITAN LIFE: Continues to Defend Miller Class Action METROPOLITAN LIFE: Court Approves Settlement in Voshall Class Suit METROPOLITAN LIFE: Non-Certification of Sales Practice Suit Upheld METROPOLITAN LIFE: Owens Class Action Ongoing METROPOLITAN LIFE: Roycroft Class Action Dismissed METROPOLITAN LIFE: Still Defends Julian & McKinney Suit MICHAELS COMPANIES: Court Approves Accord in FCRA-Related Suits MICRON TECHNOLOGY: Faces 3 Class Suits in New York MIDLAND CREDIT: Tillman Files Class Suit under FDCPA in Arkansas MOBILE TELESYSTEMS: Salim Says Financial Report Misleading MONEY MAP: Carfagno Sues Over Unsolicited Text Messages MONSANTO COMPANY: Butkovich Sues for Injuries Over Roundup Exposure MONSANTO COMPANY: Cossentinos Sue over Sale of Herbicide Roundup NATIONAL ASSOCIATION: Says Antitrust Class Action Baseless NATIONAL FOOTBALL: Ryan et al. Sue over Non-Calls by Referees NATIONWIDE CREDIT: Has Made Unsolicited Calls, Stines Suit Claims NCC BUSINESS: Elhendi Suit Asserts TCPA Violation NEW MEXICO: 10th Cir. Affirms Dismissal of Bail System Suit NORTH CAROLINA: Inmate's ADA Retaliation Claim Dismissed O'BRIEN STEEL: Stecker Seeks OT Wages for Sales Representatives PARK KITCHEN: Court Dismisses N. Allison's Wage & Hour Suit PASCHEN MANAGEMENT: Faces Morales Labor Suit in Ventura County PROSPERA HOTELS: Anton Alleges Mishandling of Credit Card Info PURDUE PHARMA: Cass County Sues Over Deceptive Marketing for Opioid REPUBLIC SERVICES: Harris Alleges Violation under FLSA RESTORATION ROBOTICS: Continues to Defend Securities Suit in Cal. RIP CURL INC: Traynor Files ADA Suit in S.D. New York RUNNING WAREHOUSE: Traynor Files Class Action Under ADA SHERWOOD FORD: Alberta Court Tosses Class Action Over Commissions SI FINANCIAL: Faces Parshall Class Action in Baltimore SOHO HOTEL: Lopez Files ADA Suit in S.D. New York SOUTHERN OHIO: Howard Seeks Unpaid Minimum, Overtime Wages STATE FARM: Faces Abraham Suit over PIP Claim SUPERIOR ENERGY: Womack Seeks OT Pay for Flowback Operators SYNEOS HEALTH: Continues to Defend Vaitkuviene Class Suit TEMPOE LLC: Deborah Rule Sues over Unwanted Phone Calls TESLA: No Class Action Yet Over Recent EV Price Cut TETRAPHASE PHARMACEUTICALS: Bid to Transfer IGNITE3 Suit Pending THOMAS DART: Hacker's Class Certification Bid Denied TRANSGENOMIC INC: Securities Class Action Dismissal Reversed U.S. XPRESS: Green Files Suit Over Unlawful Wage Deductions UBER TECHNOLOGIES: Settles Driver Misclassification Suit for $20MM UNIFIN INC: Harper Asserts FDCPA Class Action in Tennessee VISIONSTREAM: Line Workers' Lawyers Prepare to File Class Action WAWA INC: Cunningham et al. Seek to Certify Classes WEINSTEIN KARP: McLean Files TCPA Suit in C.D. Calif. WELLS FARGO: Court Continues Renewed Class Certification Motion WILHELMINA INTERNATIONAL: Discovery Still Ongoing in Shanklin Suit WILHELMINA INTERNATIONAL: Roberta Little Now Sole Plaintiff [*] Congress Considering New Privacy Law to Govern Data Breaches ********* 180 TENTH HOTEL: Faces Lopez ADA Suit in S.D. New York ------------------------------------------------------ A class action lawsuit has been filed against 180 Tenth Hotel, LLC d/b/a The High Line Hotel. The case is styled as Victor Lopez, On Behalf of Himself And All Other Persons Similarly Situated, Plaintiff v. 180 Tenth Hotel, LLC d/b/a The High Line Hotel, ADR Provider, Case No. 1:19-cv-02716 (S.D. N.Y., Mar. 26, 2019). The Plaintiff filed the case under the Americans with Disabilities Act. The High Line Hotel is a historic hotel in the West Chelsea neighborhood in the borough of Manhattan, New York City.[BN] The Plaintiff is represented by: Jeffrey M. Gottlieb, Esq. 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (212) 228-9795 Fax: (212) 982-6284 Email: nyjg@aol.com ABBVIE INC: Suppressed Market Competition for Humira, Union Claims ------------------------------------------------------------------ The case, UFCW LOCAL 1500 WELFARE FUND, on behalf of itself and all others similarly situated, the Plaintiff, v. ABBVIE INC., ABBVIE BIOTECHNOLOGY LTD., AMGEN INC., SAMSUNG BIOEPIS CO., LTD., MYLAN INC., MYLAN PHARMACEUTICALS, INC., SANDOZ, INC., FRESENIUS KABI USA, LLC, PFIZER INC., and MOMENTA PHARMACEUTICALS, INC., the Defendants, Case No. 1:19-cv-01873 (N.D. Ill., March 18, 2019), arose from the Defendants' alleged anticompetitive scheme to restrain competition in the market for Humira (TM) and its biosimilar competitors in the United States. Humira (adalimumab) is a biologic injectable therapy indicated to treat a variety of chronic conditions, including rheumatoid arthritis, ankylosing spondylitis, psoriatic arthritis, plaque psoriasis, Crohn's disease (adult and pediatric), and ulcerative colitis. Humira is sold primarily in the United States and Europe. For over 15 years, Humira has been a blockbuster drug. Indeed, Humira is presently the best-selling prescription drug in the world with over $130 billion in total sales since its launch. Humira is the single largest revenue source for AbbVie, with sales of nearly $20 billion in 2018 alone, which account for approximately 61% of the company's global revenues. Humira's price to patients has skyrocketed over the past decade. Per patient costs doubled from $19,000 per year in 2012 to more than $38,000 in 2018 (after rebates). Humira's list price, absent rebates, can now reach $50,000 per year per patient. Many other pharmaceutical manufacturers have sought to launch lower-priced adalimumab "biosimilars" -- generic versions of Humira that treat the same underlying conditions -- to garner their own share of the enormous U.S. market for this biologic. However, despite eight other manufacturers developing adalimumab biosimilars -- three of which have received Food and Drug Administration approval -- AbbVie has successfully prevented all biosimilars from launching in the U.S. market through widespread anticompetitive conduct that has allowed it to maintain its monopoly and supracompetitive prices. AbbVie has erected significant barriers to entry to block biosimilar competition. Specifically, AbbVie has created and employed an exclusionary "patent thicket" -- an unlawful scheme whereby it secured over 100 patents designed solely to insulate Humira from any biosimilar competition in the U.S. for years to come. Then, AbbVie entered into illegal market division agreements with the remaining Defendants in a concerted effort to delay biosimilar entry in the U.S. until at least 2023. Meanwhile, patients in Europe do not have to wait, as AbbVie agreed to earlier entry dates, thereby permitting biosimilar competitors to launch there. This trade-off meant that the lower price for Humira in Europe was subsidized by the much higher price in the United States where AbbVie unlawfully maintained its monopoly. The primary patent for Humira expired in December 2016. However, in order to create its patent thicket, AbbVie has applied for nearly 250 patents since its biologic was first developed, 89% of which were filed after the FDA's approval of its initial new drug application. Humira is now blanketed by over 100 issued patents. Many of the Humira patents expire in 2034, over three decades since the drug's launch. The sheer number of patents makes it "nearly impossible for any biosimilar to feasibly litigate all of these patents." The long duration and extensive scope of AbbVie's patent thicket blocks biosimilar entry regardless of whether parts of the thicket die from time to time as AbbVie patents may be adjudged invalid or non-infringed. AbbVie has abused the patent system -- collecting dozens and dozens of patents, many of which are overlapping and non-inventive -- as a means to block competition in the U.S. market. It simply is not feasible for biosimilar manufacturers to engage in time-consuming and expensive patent litigation against this mass of dubious patents. Condemnation of this practice has been intense. Industry commentators, the former Commissioner of the Food and Drug Administration ("FDA"), and a very recent U.S. Congressional investigation have criticized the use of patent thickets to deter biosimilar competition. For example, FDA Commissioner Scott Gottlieb remarked in April 2018 that manufacturers are employing "schemes to hamstring biosimilar competition" with "patent Top AbbVie executives directly benefit from thwarting biosimilar entry and raising Humira prices to exorbitant levels. The company's policy directly links financial compensation to Humira revenue goals. Last year, for example, CEO Richard Gonzalez took home $21.27 million, with $3.9 million as a performance-based cash incentive award. AbbVie's scheme to keep out biosimilar competition has cost the U.S. healthcare system billions of dollars. For example, Wells Fargo analyst David Maris calculated that AbbVie's 9.7% price hike on Humira in 2018 cost the country's healthcare system approximately $1.2 billion. Absent Defendants' anticompetitive conduct, the Plaintiff and members of the Classes would have been able to purchase adalimumab biosimilars as early as January 1, 2017 (the expiration of Humira's primary patent), at significantly lower prices than AbbVie has charged. The injury to the Plaintiff and the Classes is ongoing, as there still is no biosimilar alternative to AbbVie's Humira available to purchase in this country. A market division agreement by rivals is "anticompetitive regardless of whether the parties split a market within which both do business or whether they merely reserve one market for one and another for the other."[BN] Counsel for UFCW Local 1500 Welfare Fund and the Proposed Classes: Michael J. Freed, Esq. Steven A. Kanner, Esq. Robert J. Wozniak, Esq. Brian M. Hogan, Esq. FREED KANNER LONDON & MILLEN LLC 2201 Waukegan Road, Suite 130 Bannockburn, IL 60015 Telephone: (224) 632-4500 E-mail: skanner@fklmlaw.com mfreed@fklmlaw.com rwozniak@fklmlaw.com bhogan@fklmlaw.com - and - Gregory S. Asciolla, Esq. Jay L. Himes, Esq. Christopher J. McDonald, Esq. Robin A. van der Meulen, Esq. Brian Morrison, Esq. Domenico Minerva, Esq. LABATON SUCHAROW LLP 140 Broadway New York, NY 10005 Telephone: (212) 907-0700 Facsimile: (212) 818-0477 E-mail: gasciolla@labaton.com jhimes@labaton.com cmdconald@labaton.com rvandermeulen@labaton.com bmorrison@labaton.com dminerva@labaton.com - and - Roberta D. Liebenberg, Esq. Jeffrey S. Istvan, Esq. Paul Costa, Esq. Adam J. Pessin, Esq. FINE, KAPLAN AND BLACK, R.P.C. One South Broad Street, 23rd Floor Philadelphia, PA 19107 Telephone: (215) 567-6565 Facsimile: (215) 568-5872 E-mail: rliebenberg@finekaplan.com jistvan@finekaplan.com pcosta@finekaplan.com apessin@finekaplan.com ABC PHONES: Chavarin-Aguilar Suit Removed to C.D. California ------------------------------------------------------------ The case captioned Wendy Chavarin-Aguilar, an individual, on behalf of herself and a class of others similarly situated Plaintiff, v. ABC Phones of North Carolina, Inc., a Corporation; and DOES 1 to 20, inclusive, Defendants, Case No. 19STCV04996 was removed from the Superior Court in the State of California, County of Los Angeles to the United States District Court for the Central District of California on March 26, 2019, and assigned Case No. 2:19-cv-02244. Plaintiff commenced this class action and Private Attorney General Act case against the Defendants on February 15, 2019. In her Complaint, Plaintiff alleges claims for: (1) Failure to Provide Meal Periods; (2) Failure to Provide Rest Periods; (3) Failure to Pay Overtime; (4) Failure to Pay Wages When Due; (5) Failure to Pay Wages on Termination; (6) Failure to Provide Accurate Wage Statements; (7) Failure to pay Meal and Rest Period Premiums; (8) Unfair Competition; and (9) Violations of PAGA. Although not alleged as a separate count, Plaintiff also alleges that she can recover (on a representative basis) penalties pursuant to the PAGA.[BN] The Defendants are represented by: Robert L. Shipley, Esq. Brandon S. Gray, Esq. ROBERT L. SHIPLEY, APLC 2784 Gateway Road, Suite 104 Carlsbad, CA 92009 Phone: +1 760 438 5199 Facsimile: +1 760 438 3706 Email: rshipley@shipleylaw.com bgray@shipleylaw.com ACE ATTORNEY: Underpays Couriers, Diaz Suit Alleges --------------------------------------------------- ROBERTO DIAZ, individually and on behalf of all others similarly situated, Plaintiff v. ACE ATTORNEY SERVICES, INC.; and DOES 1 through 50, inclusive, Defendants, Case No. 19STCV06695 (Cal. Super., Los Angeles Cty., Feb. 27, 2019) is an action against the Defendants for unpaid regular hours, overtime hours, minimum wages, wages for missed meal and rest periods. Plaintiff Diaz was employed by the Defendants as courier, court runner, and process server. Ace Attorney Services, Inc. provides legal support services in California. The company's services include service of process, court services, court filing, court research, messenger services, and special delivery services. [BN] The Plaintiff is represented by: Thomas A. Kearney, Esq. KEARNEY LITTLEFIELD, LLP 3436 N. Verdugo Road, Suite 230 Glendale, CA 91208 Telephone: (213) 473-1900 Facsimile: (213) 473-1919 - and - Brandon Littlefield, Esq. LITTLEFIELD LAW 11400 W. Olympic Blvd., Suite 200 Los Angeles, CA 90064 Telephone: (213) 785-8802 ALBERTSON'S LLC: Raziano et al. Seek Unpaid Compensation -------------------------------------------------------- MICHAEL RAZIANO, BRIAN TRAISTER, and CHRIS VALDEZ, on behalf of themselves and all others similarly situated, the Plaintiff, vs. ALBERTSON'S, LLC, a Delaware Limited Liability Company; and DOES 1 through 50, Inclusive, the Defendants, Case No. 19STCV09574 (Cal. Sup., March 21, 2019), seeks to recover unpaid compensation, including reporting time pay; reimbursement of reasonably incurred business expenses; sick pay claims (including denial of the right to use sick pay and violation of local ordinances); payment of wages due during and upon termination of employment; invasion of privacy; and statutory and civil penalties, interest and attorneys' fees and costs, pursuant to the California Labor Code. The Defendants had a consistent policy and practice of failing to pay the Plaintiffs and similarly-situated employees all wages due, including reporting time pay. The Defendants knowingly and willfully failed to provide accurate wage statements to non-exempt employees, including Plaintiffs, which did not include accrued sick time, the accurate total hours and pay for reporting time, and all rates of pay, or deductions made. Albertsons LLC operates a chain of grocery stores. The Company offers pharmacy and deli products, seafood, fruit, vegetables, flowers, baked goods, beer, and wine. Albertsons serves consumers throughout the United States.[BN] Attorneys for the Plaintiffs, on behalf of themselves and all others similarly situated: Michael D. Singer, Esq. Marta Manus, Esq. COHELAN KHOURY & SINGER 605 C Street, Suite 200 San Diego, CA 92101 Telephone: (619) 595-3001 Facsimile: (619) 595-3000 E-mail: msinger@ckslaw.com mmanus@ckslaw.com - and - Roger Carter, Esq. THE CARTER LAW FIRM 23 Corporate Plaza Drive, Suite 150 Newport Beach, CA 92660 Telephone: (949) 254-7500 Facsimile: (949) 629-2501 E-mail: roger@carterlawfmn.net - and - Marc H. Phelps, Esq. THE PHELPS LAW GROUP 23 Corporate Plaza Drive, Suite 150 Newport Beach, CA 92660 Telephone: (949) 629-2533 Facsimile: (949) 629-2501 E-mail: Marc@phelpslawgroup.com ALTICE TECHNICAL: Mingo Sues over Alleged Improper Wage Practices ----------------------------------------------------------------- CLINTON MINGO, on behalf of himself and all others similarly situated, the Plaintiff, vs. ALTICE TECHNICAL SERVICES, the Defendant, Case No. 601560/2019 (N.Y. Sup., March 18, 2019), alleges that Defendant has engaged and continue to engage in illegal and improper wage practices. These practices include requiring Engineers to perform work without compensation during meal breaks; failing to pay Engineers overtime of time and one-half their regular rate of pay for all hours worked over 40 in a week; failing to pay Engineers overtime pay at the correct overtime rate because it failed to include shift differentials that were given to Plaintiff and other Engineers when calculating the overtime rate of pay; and failing to provide accurate wage statements. The Plaintiff brings the action on behalf of himself and all other similarly situated non exempt hourly paid outside plant engineer employed by Altice Technical Services in Nassau County in the State of New York at any time during the period commencing six years prior to the filing of this action and continuing until such further date as the practices complained of are discontinued. During the Class Period, the Defendant employed in excess of 40 engineers. The Defendant systematically failed and refused to pay them for all compensable hours worked. The Class Members arc so numerous that joinder of all members in one proceeding is impracticable. Altice Technical Services deploys and implements cutting edge video, internet and voice products and networks to consumer.[BN] Attorneys for the Plaintiff and the putative New York Class: Louis Ginsberg, Esq. THE LAW FIRM OF LOUIS GINSBERG, P.C. 1613 Northern Boulevard Roslyn, NY 11576 Telephone: (516) 625-0105 APPLE INC: Court Narrows Claims in iPhone Touchscreen Defect Suit ----------------------------------------------------------------- The United States District Court for the Northern District of California, San Jose Division, issued an Order granting in part and denying in part Defendant's Motion for Summary Judgment in the case captioned HOMAS DAVIDSON, et al., Plaintiffs, v. APPLE, INC., Defendant. Case No. 16-CV-04942-LHK. (N.D. Cal.). The Plaintiffs bring this putative class action against Defendant Apple, Inc. (Apple) based on Apple's alleged failure to disclose an alleged defect with the iPhone 6 and iPhone 6 Plus. According to the Plaintiffs, the iPhones suffer from an alleged material manufacturing defect that causes the touchscreen to become unresponsive to users' touch inputs (touchscreen defect). Apple's Pre-Release Knowledge of the Touchscreen Defect The Plaintiffs claim that Apple knew about the touchscreen defect before releasing the iPhone 6 and iPhone 6 Plus. The Plaintiffs argue that Apple has long known that strain on the logic board from bending of the phone causes precisely the type of harm Plaintiffs allege. Apple's Post-Release Knowledge of the Touchscreen Defect The Plaintiffs also claim that Apple knew of the touchscreen defect after the iPhones' release. Internal Apple emails revealed that Apple employees were aware of news stories and customer complaints about the iPhone 6 Plus bending. Within the first two weeks of the iPhones' launch, Apple began to hear of issues from customers complaining about touch responsiveness. At issue in the instant motion for summary judgment are: (1) a Colorado Consumer Protection Act (CCPA) claim (2) a Florida Deceptive and Unfair Trade Practices Act (FDUTPA) claim (3) a Washington Consumer Protection Act (WCPA) claim (4) an Illinois Consumer Fraud and Deceptive Trade Practices Act (ICFDTPA) claim and (5) a Texas Deceptive Trade Practices Act (TDTPA) claim. Colorado Consumer Protection Act (CCPA) Claim To state a claim under the CCPA, a plaintiff must show: (1) that the defendant engaged in an unfair or deceptive trade practice (2) that the challenged practice occurred in the course of defendant's business, vocation, or occupation (3) that it significantly impacts the public as actual or potential consumers of the defendant's goods, services, or property; (4) that the plaintiff suffered injury in fact to a legally protected interest and (5) that the challenged practice caused the Plaintiff's injury. Apple moves for summary judgment on the basis that the alleged touchscreen defect does not exist and that if it did exist, Apple did not know of its existence; that Colorado Plaintiff Justin Bauer did not review the iPhone 6 Plus box before his iPhone 6 Plus purchase; and that Apple disclosed to consumers that dropping the iPhone would potentially damage the phone. In its motion, Apple presents evidence challenging the existence of the alleged touchscreen defect in the iPhone 6 and the iPhone 6 Plus. For example, prior to launch, Apple subjected the iPhone 6 and 6 Plus to sit testing, which showed that extensive repetitive bending of the enclosure is insufficient to cause the alleged touchscreen defect. According to Apple's expert Dr. Reinhold Dauskardt, who reviewed Apple's internal testing protocols, Apple's rigorous testing employed very considerable loads that replicate real-world conditions. Nonetheless, the Court finds that summary judgment is not appropriate because, at a minimum, the Plaintiffs have shown that there is a genuine issue of material fact as to whether the alleged touchscreen defect exists, whether Apple had knowledge of its existence, and whether Apple engaged in an unfair or deceptive trade practice by failing to disclose it. For instance, Apple's senior manager of iPhone quality Jason Fu admitted in an internal email: enclosure bending likely contributed to the stress causing trace-crack near the Meson chip. The CCPA requires a showing that the defendant engaged in an unfair or deceptive trade practice. In light of the internal Apple communications and slide decks describing the alleged touchscreen defect and associating it with enclosure bending despite Apple's internal testing of the iPhone 6 and 6 Plus, which indicate that enclosure bending is not a cause of the alleged touchscreen defect, the Plaintiffs have sufficiently demonstrated that there is a genuine issue of material fact as to whether Apple engaged in an unfair or deceptive trade practice by withholding information about the alleged touchscreen defect. Apple disputes the timing of its knowledge of the alleged touchscreen defect. However, that dispute underscores that there are material factual disputes that preclude summary judgment. Thus, for the reasons stated above, summary judgment is denied as to the CCPA claim. Florida Deceptive and Unfair Trade Practices Act (FDUTPA) Claim To state a claim under the FDUTPA, there are three elements: (1) a deceptive act or unfair practice (2) causation and (3) actual damages. A deceptive act occurs if there is a representation, omission, or practice that is likely to mislead the consumer acting reasonably in the circumstances, to the consumer's detriment. Apple moves for summary judgment on the basis that the alleged touchscreen defect does not exist and that if it did exist, Apple did not know of its existence; that Florida Plaintiff John Borzymowski did not review the iPhone 6 Plus box before his iPhone 6 Plus purchase and that Apple disclosed to consumers that dropping the iPhone would potentially damage the phone. Apple has cited evidence of its internal testing, both pre-release and post-release of the iPhone 6 and 6 Plus, which do not show enclosure bending as a root cause of the alleged touchscreen defect. However, the Court finds that summary judgment is not appropriate because, at a minimum, Plaintiffs have shown that there is a genuine issue of material fact as to whether the alleged touchscreen defect exists, whether Apple had knowledge of its existence, and whether Apple engaged in a deceptive act or unfair practice by failing to disclose it. Thus, for the reasons stated above, summary judgment is denied as to the FDUTPA claim. Washington Consumer Protection Act (WCPA) Claim To state a claim under the WCPA, a plaintiff must prove (1) an unfair or deceptive act or practice (2) occurring in trade or commerce (3) affecting the public interest (4) injury to a person's business or property and (5) causation. Apple moves for summary judgment on the basis that the alleged touchscreen defect does not exist and that if it did exist, Apple did not know of its existence; that Washington Plaintiffs William Bon and Matt Muilenberg did not review the iPhone boxes before their iPhone purchases and that Apple disclosed to consumers that dropping the iPhone would potentially damage the phone. Apple has cited evidence of its internal testing, both pre-release and post-release of the iPhone 6 and 6 Plus, which do not show enclosure bending as a root cause of the alleged touchscreen defect. However, the Court finds that summary judgment is not appropriate because, at a minimum, Plaintiffs have shown that there is a genuine issue of material fact as to whether the alleged touchscreen defect exists, whether Apple had knowledge of its existence, and whether Apple engaged in an unfair or deceptive act or practice by failing to disclose it. The Plaintiffs have cited documents showing that Apple may have known about the alleged touchscreen defect and concealed it from product advertising. Specifically, Plaintiffs have cited Apple employee emails and Apple slide decks confirming Apple's knowledge of a quality issue related to solder cracking near the Meson chip, and that the iPhone enclosure bending likely contributed to the issue. Thus, for the reasons stated, summary judgment is DENIED as to the WCPA claim. Illinois Consumer Fraud and Deceptive Trade Practices Act (ICFDTPA) Claim To state a claim under the ICFDTPA, a plaintiff must establish: (1) the defendant's deception (2) the defendant intended that the plaintiff rely on that deception (3) the deception occurred in commerce (4) the plaintiff suffered actual damage and (5) the deception proximately caused the damage. Apple moves for summary judgment on the basis that the alleged touchscreen defect does not exist and that if it did exist, Apple did not know of its existence; that Illinois Plaintiff Eric Siegal did not review the iPhone 6 Plus box before his iPhone 6 Plus purchase; and that Apple disclosed to consumers that dropping the iPhone would potentially damage the phone. Apple also alleges that Apple did not engage in deception, that Plaintiff Siegal suffered no injury, and that the alleged deception did not cause Plaintiff Siegal's injury. The Court agrees with Apple that Plaintiff Siegal has not suffered actual damage, which is an element of an ICFDTPA claim. In the FACC, Plaintiff Siegal alleges that he paid $150 to replace his defective iPhone 6 Plus with another iPhone 6 Plus on September 26, 2016. Plaintiffs contend that Plaintiff Siegal suffered actual damage by having to pay $150 to replace his defective iPhone 6 Plus. Similarly, in his deposition, Plaintiff Siegal testified that after his phone manifested the alleged touchscreen defect, he paid $150 for a replacement phone. However, the FACC's allegation and Plaintiff Siegel's deposition testimony that he paid $150 for a replacement iPhone 6 Plus is contradicted by third-party Verizon's records, which indicate that Plaintiff Siegal was not charged anything for his replacement iPhone 6 Plus. Specifically, Plaintiffs' FACC alleged that on September 26, 2016, Plaintiff Siegal paid $150 to a Verizon store to obtain a replacement for his defective iPhone 6 Plus. However, Verizon's records from September 26, 2016 show a $0.00 charge for the replacement iPhone 6 Plus that Plaintiff Siegal received. As aforementioned, one of the required elements of an ICFDTPA claim is actual damage to the Plaintiff. Plaintiffs have failed to raise a genuine issue of material fact as to whether Plaintiff Siegal suffered actual damage resulting from Apple's alleged omission of the touchscreen defect because Plaintiff Siegal concedes that he paid nothing for his iPhone 6 Plus and Verizon's records show that Plaintiff Siegal paid nothing for his replacement iPhone 6 Plus. Thus, Apple's motion for summary judgment as to the ICFDTPA claim is GRANTED. Texas Deceptive Trade Practices Act (TDTPA) Claim To state a nondisclosure claim under the TDTPA, a plaintiff must prove: (1) the defendant knew information regarding the goods or services, (2) the information was not disclosed, (3) there was an intent to induce the consumer to enter into the transaction through the failure to disclose, and (4) the consumer would not have entered into the transaction had the information been disclosed. Apple moves for summary judgment on the basis that the alleged touchscreen defect does not exist and that if it did exist, Apple did not know of its existence; that Texas Plaintiff Taylor Brown did not review the iPhone 6 Plus box before his iPhone 6 Plus purchase; and that Apple disclosed to consumers that dropping the iPhone would potentially damage the phone. Also, Apple alleges that Apple did not have any information to disclose regarding the alleged touchscreen defect, that Plaintiff Brown suffered no injury, and that Plaintiff Brown's decision to purchase the iPhone 6 Plus was independent of any omission of information about the alleged touchscreen defect by Apple. The Court agrees with Apple that the Plaintiffs have failed to satisfy prong (4) of a TDTPA claim because Plaintiffs have failed to show that Plaintiff Brown would not have purchased his iPhone 6 Plus had the alleged touchscreen defect been disclosed. Plaintiff Brown's deposition testimony fails to mention what Plaintiff Brown would have done had the omitted information been disclosed. The Plaintiffs fail to cite any other document, including a declaration or affidavit from Plaintiff Brown. Thus, the Plaintiffs fail to show that Plaintiff Brown would not have purchased his iPhone 6 Plus if the alleged touchscreen defect had been disclosed. Here, Plaintiffs' Exhibit 31 merely describes the Apple's statements that Plaintiff Brown reviewed prior to purchasing his iPhone 6 Plus. Neither Exhibit 31 nor any evidence or affidavit shows that Plaintiff Brown would not have purchased his iPhone 6 Plus had Apple disclosed the alleged touchscreen defect. Thus, Plaintiffs have failed to satisfy prong (4) of a TDTPA claim. Therefore, Apple's motion for summary judgment is granted as to the TDTPA claim. Apple's motion for summary judgment is granted as to the Illinois Consumer Fraud and Deceptive Trade Practices Act claim, Texas Deceptive Trade Practices Act claim, and Plaintiff Bauer's claim for injunctive relief. Because the Court has granted summary judgment on the Illinois and Texas claims, Apple's motion for summary judgment is denied as moot as to the claims for injunctive relief of Illinois Plaintiff Eric Siegal and Texas Plaintiff Taylor Brown. Apple's motion for summary judgment is denied as to the Colorado Consumer Protection Act claim, Florida Deceptive and Unfair Trade Practices Act claim, and Washington Consumer Protection Act claim. A full-text copy of the District Court's February 25, 2019 Memorandum Decision and Order is available at http://tinyurl.com/yyw7lowsfrom Leagle.com. Thomas Davidson, Todd Cleary, Jun Bai, William Bon, Adam Benelhachemi, Brooke Corbett, Matt Muilenburg, Kathleen Baker, Taylor Brown, Michael Pajaro, Heirloom Estate Services, Inc., John Borzymowski & Justin Bauer, Plaintiffs, represented by David Christopher Wright -- dcw@mccunewright.com -- McCune Wright Arevalo, LLP, Gregory F. Coleman -- greg@gregcolemanlaw.com -- Greg Coleman Law PC, Adam A. Edwards -- adam@gregcolemanlaw.com -- Greg Coleman Law PC, pro hac vice, Bruce Daniel Greenberg -- bgreenberg@litedepalma.com -- Lite Depalma Greenberg LLC, pro hac vice, Joseph G. Sauder -- jgs@mccunewright.com -- McCuneWright, LLP, pro hac vice, Matthew David Schelkopf -- mds@mccunewright.com -- McCuneWright LLP, pro hac vice, Mitchell M. Breit -- mbreit@simmonsfirm.com -- SIMMONS HANLY CONROY, LLC, pro hac vice, Paul J. Hanly, Jr. -- phanly@simmonsfirm.com -- Simmons Hanly Conry LLC, pro hac vice, Richard Christian Harlan, Larson O'Brien LLP, Stephen Gerard Larson, Larson O'Brien LLP, Susana Cruz Hodge -- scruzhodge@litedepalma.com -- Lite DePalma Greenberg, LLC, pro hac vice & Richard D. McCune, Jr. -- rdm@mccunewright.com -- McCune Wright Arevalo, LLP. Apple, Inc., Defendant, represented by Arturo J. Gonzalez -- agonzalez@mofo.com -- Morrison & Foerster LLP, David Ramraj Singh -- david.singh@weil.com -- Weil, Gotshal and Manges LLP, Alexandria Armida Amezcua -- aamezcua@mofo.com -- Morrison & Foerster LLP, Ashley K. Nakamura , Morrison Foerster, LLP, Christopher Leonard Robinson , Morrison & Foerster LLP, David Michael Walsh, Esq. -- dwalsh@mofo.com -- Morrison & Foerster, Diane P. Sullivan – diane@sullivan@weil.com -Weil, Gotshal and Manges LLP, pro hac vice, Penelope Athene Preovolos -- ppreovolos@mofo.com -- Morrison & Foerster LLP, Sabrina Larson -- slarson@mofo.com -- Morrison and Foerster, LLP & Tiffany Cheung -- tcheung@mofo.com -- Morrison & Foerster LLP. AXOGEN INC: Continues to Defend Einhorn Class Action ---------------------------------------------------- AxoGen, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on February 26, 2019, for the fiscal year ended December 31, 2018, that the company continues to defend itself from a class action suit entitled, Einhorn v. Axogen, Inc., et al. On January 9, 2019, Plaintiff Neil Einhorn, on behalf of himself and others similarly situated, filed a putative class action complaint in the United Stated District Court for the Middle District of Florida alleging violations of the federal securities laws against Axogen, Inc., certain of its directors and officers ("Individual Defendants"), and Axogen's 2017 Offering Underwriters and 2018 Offering Underwriters (collectively, with the Individual Defendants, the "Defendants"), captioned Einhorn v. Axogen, Inc., et al., No. 8:19-cv-00069 (M.D. Fla.). Plaintiff asserts that Defendants made false or misleading statements in connection with the Company's November 2017 registration statement issued regarding its secondary public offering in November 2017 and May 2018 registration statement issued regarding its secondary public offering in May 2018, and during a class period of August 7, 2017 to December 18, 2018. In particular, Plaintiff asserts that Defendants issued false and misleading statements and failed to disclose to investors: (1) that the Company aggressively increased prices to mask lower sales; (2) that the Company's pricing alienated customers and threatened the Company's future growth; (3) that ambulatory surgery centers form a significant part of the market for the Company's products; (4) that such centers were especially sensitive to price increases; (5) that the Company was dependent on a small number of surgeons whom the Company paid to generate sales; (6) that the Company's consignment model for inventory was reasonably likely to lead to channel stuffing; (7) that the Company offered purchase incentives to sales representatives to encourage channel stuffing; (8) that the Company's sales representatives were encouraged to backdate revenue to artificially inflate metrics; (9) that the Company lacked adequate internal controls to prevent such channel stuffing and backdating of revenue; (10) that the Company's key operating metrics, such as number of active accounts, were overstated; and (11) that, as a result of the foregoing, Defendants' positive statements about the Company's business, operations, and prospects, were materially misleading and/or lacked a reasonable basis. Axogen was served on January 15, 2019. On February 4, 2019, the court granted the parties' stipulated motion which provided that Axogen is not required to file a response to the complaint until thirty days after Plaintiff files a consolidated amended complaint, which will not occur until 30 days after the court appoints a lead plaintiff and lead counsel. Plaintiff is seeking compensatory damages, reimbursement of expenses and costs, including counsel and expert fees and such other relief as the court deems just and proper. The Company and Individual Defendants dispute the allegations and intend to vigorously defend against the Complaint. AxoGen, Inc. provides surgical solutions for physical damage or transection to peripheral nerves. AxoGen, Inc. is headquartered in Alachua, Florida. BANK OF AMERICA: Dallas Employees Trust Asserts Sherman Act Breach ------------------------------------------------------------------ Dallas Area Rapid Transit Employees Defined Benefit Retirement Plan and Trust and Sheet Metal Workers' Local 19 Pension Fund, on behalf of themselves and all others similarly situated, Plaintiffs, v. BANK OF AMERICA, N.A., BARCLAYS CAPITAL INC., BNP PARIBAS SECURITIES CORP., CITIGROUP GLOBAL MARKETS INC., DEUTSCHE BANK SECURITIES INC., HSBC SECURITIES (USA) INC., HSBC BANK PLC, J.P. MORGAN CHASE BANK, N.A., J.P. MORGAN SECURITIES LLC, MERRILL LYNCH, PIERCE, FENNER & SMITH INC; NOMURA SECURITIES INTERNATIONAL, INC., TD SECURITIES (USA) LLC, WELLS FARGO SECURITIES, LLC, Defendants, Case No. 1:19-cv-02715 (S.D. N.Y., March 26, 2019) seeks treble damages, attorneys' fees, reasonable expenses, and cost of suit for violations of the Sherman Act. The Defendants violated that charter by conspiring to fix prices and restrain competition in the market for unsecured bonds issued by Government-Sponsored Enterprises ("GSEs") from at least as early as January 1, 2012 through June 1, 2018. GSEs issue debt in order to fund their activities. Investors can also buy or sell at resale previously issued GSE bonds from dealers on the secondary market. In addition to dominating underwriting in the primary market for GSE bonds, Defendants are among the largest such dealers in the secondary market. As competitors in the secondary market for GSE bonds, absent collusion, the Defendants have an incentive to compete vigorously for the business of their investor clients. But because Defendants were not satisfied with the bid-offer spreads that would result from genuine competition in the market for GSE bonds, they colluded to rig the market. Without any ethical walls between syndicate and secondary trading activities, the Defendants' GSE bond traders could exchange--on a large scale--inside information pertaining to primary issuances by the GSEs, which they could use to their advantage. The Defendants' conspiracy severely harmed Plaintiffs and the Class and restrained competition in the market for GSE bonds. Plaintiffs and the Class entered into billions of dollars' worth of GSE bond transactions with the Defendants during the Class Period. As a result of their conspiracy, Defendants padded their own profits, and their personnel received huge annual bonuses, by cheating Plaintiffs and the Class out of potentially billions of dollars. The Defendants also directly injured each Class member resulting in potentially billions of dollars in damages, says the complaint. Plaintiff Dallas Area Rapid Transit Employees' Defined Benefit Retirement Plan and Trust is a pension fund headquartered in Dallas, Texas. Bank of America, N.A. is a federally chartered national banking association with its principal place of business in Charlotte, North Carolina.[BN] The Plaintiffs are represented by: Michael B. Eisenkraft, Esq. Sharon K. Robertson, Esq. Cohen Milstein Sellers & Toll PLLC 88 Pine Street, 14th Floor New York, NY 10005 Phone: (212) 838-7797 Email: meisenkraft@cohenmilstein.com srobertson@cohenmilstein.com - and - Carol V. Gilden, Esq. Cohen Milstein Sellers & Toll PLLC 190 South LaSalle Street, Suite 1705 Chicago, IL 60603 Phone: (312) 357-0370 Email: cgilden@cohenmilstein.com - and - Christina D. Saler, Esq. Cohen Milstein Sellers & Toll PLLC 3 Logan Square, 1717 Arch Street, Suite 3610 Philadelphia, PA 19103 Phone: (267) 479-5700 Email: csaler@cohenmilstein.com - and - Brent W. Johnson, Esq. Robert A. Braun, Esq. Cohen Milstein Sellers & Toll PLLC 1100 New York Ave. NW, Fifth Floor Washington, DC 20005 Phone: (202) 408-4600 Email: bjohnson@cohenmilstein.com rbraun@cohenmilstein.com BANK OF AMERICA: Mortgage Lenders Wins Certification of OT Suit --------------------------------------------------------------- Law360 reports that a group of Bank of America mortgage lenders who alleged they were wrongly denied overtime won conditional certification to pursue a class action against the financial giant. [GN] BDJ TRUCKING: Yata et al. Seek to Certify Equipment Lessee Class ---------------------------------------------------------------- In the class action lawsuit HAMIMI YATA and JASMIN ZUKANCIC, individually and on behalf of others similarly situated, the Plaintiffs, v. BDJ TRUCKING CO. and SENAD MUJKIC, the Defendants, Case No. 1:17-cv-03503 (N.D. Ill.), the Plaintiffs ask the Court for an order: 1. certifying a class of: "all individuals or entities that signed equipment leases with BDJ between April 1, 2013 and April 1, 2017"; 2. appointing the Plaintiffs as class representatives, appointing Christopher J. Wilmes and Matthew J. Piers of Hughes Socol Piers Resnick & Dym as class counsel; and 3. directing notice of class action be mailed to the class.[CC] Attorneys for the Plaintiffs: Christopher J. Wilmes, Esq. Matthew J. Piers, Esq. HUGHES, SOCOL, PIERS, RESNICK & DYM, LTD. 70 West Madison Street, Suite 4000 Chicago, IL 60602 Telephone: 312 580-0100 BILATERAL CREDIT: Del Moral Asserts Breach of FDCPA --------------------------------------------------- A class action lawsuit has been filed against Bilateral Credit Corp, LLC. The case is styled as Marivel Del Moral on behalf of herself individually and all others similarly situated, Plaintiff v. Bilateral Credit Corp, LLC, Defendant, Case No. 2:19-cv-01632 (E.D. N.Y., March 21, 2019). The docket of the case states the nature of suit as Consumer Credit filed pursuant to the Fair Debt Collection Practices Act. Bilateral Credit Corp LLC is a debt collection agency with offices in New York and East Providence, Rhode Island.[BN] The Plaintiff is represented by: Novlette Rosemarie Kidd, Esq. Fagenson & Puglisi 450 Seventh Avenue, Suite 704 New York, NY 10123 Tel: (212) 268-2128 Fax: (212) 268-2127 Email: nkidd@fagensonpuglisi.com BONNIER CORPORATION: Friske Seeks to Certify Subscribers Class -------------------------------------------------------------- In the class action lawsuit REBECCA FRISKE, individually and on behalf of all others similarly situated, the Plaintiff, v. BONNIER CORPORATION, a Delaware corporation, the Defendant, Case No. 2:16-cv-12799-DML-EAS (E.D. Mich.), the Plaintiff moves the Court for an Order: 1. conditionally certifying the action as a class action, for settlement purposes only, on behalf of: "all Michigan residents who subscribed to or received one or more subscriptions to a Bonnier publication between July 28, 2010 and the date of Preliminary Approval of the Settlement Agreement, and who did not purchase such subscription(s) through a Third-Party Subscription Agent"; and 2. appointing herself as class representative and appointing her counsel, Carlson Lynch, LLP and the Law Offices of Daniel O. Myers, as class counsel. In connection with its role as a publisher, Defendant obtained Plaintiff's personal information, including her name, address and subscription history. The Plaintiff alleges that Defendant then made this information available to third parties without her consent. The Plaintiff has alleged that Defendant's conduct violates the Video Rental Privacy Act. The VRPA forbids individuals "engaged in the business of selling at retail, renting, or lending books or other written materials" from "disclosing to any person, other than the customer, a record or information concerning the purchase, lease, rental, or borrowing of those materials by a customer that indicates the identity of the customer." Bonnier publishes magazines that are sold to consumers throughout the United States, including to Michigan residents. The Plaintiff, a Michigan resident, subscribes to Boating magazine, which is published by Defendant.[CC] Attorneys for the Plaintiff: Gary F. Lynch, Esq. Jamisen A. Etzel, Esq. CARLSON LYNCH, LLP 1133 Penn Avenue, 5th Floor Pittsburgh, PA 15232 E-mail: glynch@carlsonlynch.com jetzel@carlsonlynch.com - and - Daniel Myers, Esq. THE LAW OFFICES OF DANIEL O. MYERS 818 Red Drive, Suite 210 Traverse City, MI 49684 E-mail: dmyers@domlawoffice.com BRIDGEPOINT EDUCATION: May 10 Lead Plaintiff Motion Deadline Set ---------------------------------------------------------------- Bragar Eagel & Squire, P.C. on March 11 disclosed that a class action lawsuit has been filed in the U.S. District Court for the Southern District of California on behalf of all persons or entities who purchased or otherwise acquired Bridgepoint Education, Inc. (NYSE: BPI) securities between March 8, 2016 and March 7, 2019 (the "Class Period"). Investors have until May 10, 2019 to apply to the Court to be appointed as lead plaintiff in the lawsuit. The complaint alleges that throughout the class period defendants made false and/or misleading statements and/or failed to disclose that: (1) Bridgepoint's processes for recording revenue for its Corporate Full Tuition Grant program were inaccurate; (2) Bridgepoint maintained deficient internal controls; (3) due to the foregoing deficiencies, Bridgepoint was prone to and did commit material accounting errors related to revenue, provision for bad debts, accounts receivable and deferred revenue, which resulted in the overstatement of revenue and expenses; and (4) as a result, Bridgepoint's public statements were materially false and misleading at all relevant times. If you purchased Bridgepoint securities during the Class Period or continue to hold shares purchased before the Class Period, have information, would like to learn more about these claims, or have any questions concerning this announcement or your rights or interests with respect to these matters, please contact Brandon Walker or Melissa Fortunato by email at investigations@bespc.com, or telephone at (212) 355-4648, or by filling out this contact form. There is no cost or obligation to you. Bragar Eagel & Squire, P.C. -- http://www.bespc.com-- is a New York-based law firm concentrating in commercial and securities litigation. For additional information concerning the Bridgepoint lawsuit, please go to https://bespc.com/bpi/. [GN] BRITISH AMERICAN: Jones Suit v. American Tobacco Still Dormant -------------------------------------------------------------- British American Tobacco p.l.c. said in its Form 20-F filed with the U.S. Securities and Exchange Commission on March 15, 2019, for the fiscal year ended December 31, 2018, that there is "currently no activity" in the case styled Jones v. American Tobacco Co., Inc. The case is a putative class action filed in December 1998 in the Circuit Court, Jackson County, Missouri. It was brought by a plaintiff on behalf of a putative class of Missouri tobacco product users and purchasers against various defendants, including R.J. Reynolds Tobacco Company (RJRTC), Lorillard Tobacco Company (Lorillard Tobacco) and Brown & Williamson Holdings, Inc. (B&W), alleging that the plaintiffs' use of the defendants' tobacco products has caused them to become addicted to nicotine, and seeking an unspecified amount of compensatory and punitive damages. British American Tobacco p.l.c. provides cigarettes and other tobacco products worldwide. It manufactures vapor and tobacco heating products; oral tobacco and nicotine products, such as snus, tobacco-free nicotine pouches, and moist snuff; cigars; and e-cigarettes. The Company offers its products under the Dunhill, Kent, Lucky Strike, Pall Mall, Rothmans, Newport, Camel, Natural American Spirit, Vogue, Viceroy, Kool, Peter Stuyvesant, Craven A, Benson & Hedges, John Player Gold Leaf, State Express 555, and Shuang Xi brands. The Company sells its products to retail outlets. British American Tobacco p.l.c. was founded in 1902 and is headquartered in London, the United Kingdom. BURLINGTON COAT: Fails to Pay Proper Wages, Thames Suit Alleges --------------------------------------------------------------- MARLON THAMES, individually and on behalf of all others similarly situated, Plaintiff v. BURLINGTON COAT FACTORY; BURLINGTON COAT FACTORY DIRECT CORPORATION; BURLINGTON COAT FACTORY OF TEXAS, INC.; and DOES 1-50, inclusive, Defendants, Case No. 34-2019-00251435 (Cal. Super., Sacramento Cty., Feb. 27, 2019) seeks to recover from the Defendant unpaid wages and overtime compensation, interest, liquidated damages, attorneys' fees, and costs. Plaintiff Thames was employed by the Defendants as hourly, non-exempt employee. Burlington Coat Factory Direct Corporation operates as a subsidiary of Burlington Coat Factory Investments Holdings, Inc. The company engages in the retailing of branded apparel products. The company provide ladies sportswear, menswear, coats, family footwear, baby furniture, accessories, home decor, and gifts; designer and fashion shoes; and baby clothing and other merchandise products. The company's Web site features merchandise items, shopping cart functionality, item search capability, and a secure online payment processing system. It offers refunds for merchandise purchased through its online shopping website if the merchandise is returned within a prescribed period of time. The company was incorporated in 1997 and is based in Burlington, New Jersey. [BN] The Plaintiff is represented by: Larry W. Lee, Esq. DIVERSITY LAW GROUP, P.C. 515 S. Figueroa St., Suite 1250 Los Angeles, CA 90071 Telephone: (213) 488-6555 Facsimile: (213) 488-6554 - and - William L. Marder, Esq. POLARIS LAW GROUP, LLP 501 San Benito Street, Suite 200 Hollister, CA 95023 Telephone: (831) 531-4214 Facsimile: (831) 634-0333 CAMPING WORLD: Geis Securities Class Action in Illinois Underway ---------------------------------------------------------------- Camping World Holdings, Inc. has been named as a defendant in a putative class action complaint by Daniel Geis, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2018. On February 22, 2019, a putative class action complaint styled Daniel Geis v. Camping World Holdings, Inc., et al. was filed in the Circuit Court of Cook County, Illinois, Chancery Division, on behalf of all purchasers of Camping World Class A common stock in and/or traceable to the Company's initial public offering on October 6, 2016 ("Geis Complaint"). The Geis Complaint names as defendants Camping World, certain of the Company's officers and directors, and the underwriters of the offering, and alleges violations of Sections 11, 12(a)(2), and 15 of the Securities Act of 1933 based on allegedly materially misleading statements or omissions of material facts necessary to make certain statements not misleading. Camping World Holdings, Inc., through its subsidiaries, provides a portfolio of services, protection plans, products, and resources for recreational vehicle (RV) owners and camping enthusiasts. Camping World Holdings, Inc. was founded in 1966 and is headquartered in Lincolnshire, Illinois. CARILLON TOWER: Yao Seeks to Certify Class of Chinese Nationals --------------------------------------------------------------- In the class action lawsuit Ying Yao, on behalf of herself and all others similarly situated Plaintiffs, v. Carillon Tower/Chicago LP; Forefront EB-5 Fund (ICT) LLC; Tizi LLC d/b/a Local Government Regional Center of Illinois; TD Bank N.A.; Symmetry Property Development II LLC; and Fordham Real Estate LLC, the Defendants, Case No. 1:18-cv-07865 (N.D. Ill.), the Plaintiffs move the Court for an Order certifying a class consisting of: "The 89 Chinese nationals who are limited partners in the Carillon Tower/Chicago LP and who have each paid $550,000.00 into that partnership." The investment was as admitted by Jason Ding, the agent and representative for Defendants Symmetry Property Development II LLC, Forefront EB-5 Fund (ICT) LLC, and Carillon Tower/Chicago LP. The Defendants comprise the Developer, Project Owner, General Partner and Escrow Agent of a commercial development project that contemplated the construction of a high-rise building at the corner of Wabash and Superior in Chicago. The Plaintiffs are Chinese nationals seeking permanent immigration status in the United States by way of I-526 petitions registered through the UCSIS with associated individual investment in an EB-5 Fund that would create jobs in the local economy pursuant to the construction and development of the project. The investment was made in 2015 but no shovel been put into the ground, and the Plaintiffs and members of the Class want their money back with interest and fees. Excluded from the Class are Defendant and its subsidiaries and affiliates; all persons who make a timely election to be excluded from the Class; governmental entities; and the judge to whom this case is assigned and any immediate family members thereof.[CC] Counsel for the Plaintiffs: Douglas Litowitz, Esq. 413 Locust Place Deerfield, IL 60015 Telephone: (312) 622-2848 E-mail: Litowitz@gmail.com - and - Glen J. Dunn, Jr., Esq. GLEN J. DUNN & ASSOCIATES, LTD. 121 W. Wacker Drive, Suite 1414 Chicago, IL 60601 Telephone: (312) 880-1010 E-mail: gdunn@gjdlaw.com CHARTER COMMUNICATIONS: Davis Seeks Unpaid Overtime Wages --------------------------------------------------------- La Sonji Davis, individually and on behalf of other individuals similarly situated, Plaintiffs, v. CHARTER COMMUNICATIONS, INC., a Delaware corporation (formerly known as TIME WARNER CABLE); and DOES 1-10, inclusive, Defendants, Case No. 3:19-cv-00752-B (S.D. N.Y., March 25, 2019) seek relief and damages for the Defendants' violation of the Fair Labors Standards Act. Plaintiff alleges both she and the members of the putative class were denied meal breaks and their time records in Kronos were altered to show they took breaks when in fact they did not. Plaintiff was unable to take her meal breaks approximately 3 out of every 5 shifts due to employer related work deadlines, notes the complaint. In addition, Plaintiff alleges both she and the members of the putative class were unable to take rest breaks due to work deadline issues. Accordingly, Plaintiff and the other putative class members were not compensated for their hours worked for meal and rest breaks, which would have equated to overtime since they were already working full-time, says the complaint. Plaintiff worked for Defendants' call center in Irving, Texas from May 2014 to January 2017 and was out on disability from September to December 2016. Defendant CHARTER COMMUNICATIONS, INC., is a Delaware Corporation.[BN] The Plaintiff is represented by: Paul N. Schlemmer, Esq. THE SCHLEMMER FIRM, LLC 830 Third Avenue, Fifth Floor New York, NY 10022 Phone: (212) 390-8030 Facsimile: (212) 390-8010 Email: paul@schlemmerfirm.com CHICO'S FAS: Court Shelves Altman Settlement -------------------------------------------- Chico's FAS, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on March 19, 2019, for the fiscal year ended December 31, 2018, that the motion to stay the District Court's consideration of the settlement in the case, Altman v. White House Black Market, Inc., pending the Eleventh Circuit's final disposition of Muransky v. Godiva Chocolatier, Inc., has been granted. In July 2015, White House Black Market, Inc. ("WHBM") was named as a defendant in Altman v. White House Black Market, Inc., a putative class action filed in the United States District Court for the Northern District of Georgia ("District Court"). The complaint alleges that WHBM, in violation of federal law, willfully published more than the last five digits of a credit or debit card number on customers' point-of-sale receipts. The plaintiff seeks an award of statutory damages of $100 to $1,000 for each alleged willful violation of the law, as well as attorneys' fees, costs and punitive damages. WHBM denies the material allegations of the complaint and believes the case is without merit. On February 12, 2018, the District Court issued an order certifying the class. On April 9, 2018, the District Court, sua sponte, issued an order granting WHBM's earlier 2016 request to appeal, to the Eleventh Circuit Court of Appeals ("Eleventh Circuit"), the District Court's ruling that the plaintiff has standing to maintain the lawsuit. On April 19, 2018, WHBM filed a petition for review in the Eleventh Circuit. In the meantime, the District Court stayed all further proceedings in the case pending the outcome of the appeal in the Eleventh Circuit. On July 12, 2018, the plaintiff and WHBM notified the Eleventh Circuit that the plaintiff and WHBM had reached a class settlement on all claims and therefore voluntarily dismissed WHBM's appeal to the Eleventh Circuit. On August 2, 2018, the District Court reopened the case for purposes of reviewing/approving the proposed settlement. On October 22, 2018, the plaintiff filed the settlement papers with the District Court, along with a motion to stay the District Court's consideration of the settlement pending the Eleventh Circuit's final disposition of Muransky v. Godiva Chocolatier, Inc., in which the Eleventh Circuit held, in an opinion issued October 3, 2018, that the display of the first five and last four digits of a credit or debit card number on a customer's receipt given at the point of sale establishes a "concrete injury" sufficient to confer Article III standing, enabling the customer to maintain a lawsuit. The motion to stay was granted on November 15, 2018. A petition for rehearing was filed in the Muransky case on October 24, 2018 and is currently pending before the Eleventh Circuit. The Muransky opinion, if not altered on the petition for rehearing, would bind the District Court in the Altman case and likely establish that the plaintiff has standing to maintain her lawsuit against WHBM. In such event, the stay will be lifted and the proposed settlement will be reviewed by the District Court. If the Eleventh Circuit does not find standing in the Muransky case, the parties have agreed to submit the proposed settlement to the Superior Court for Cobb County, Georgia for approval. The proposed settlement would not have a material adverse effect on the Company’s consolidated financial condition or results of operations. Chico's FAS said, "However, no assurance can be given that the proposed settlement will be approved. If the proposed settlement is rejected and the case were to proceed as a class action and WHBM were to be unsuccessful in its defense on the merits, then the ultimate resolution of the case could have a material adverse effect on the Company's consolidated financial condition or results of operations. Chico's FAS, Inc. operates as an omnichannel specialty retailer of women's private branded casual-to-dressy clothing, intimates, and complementary accessories. It operates under the Chico's, White House Black Market (WHBM), and Soma brand names. Chico's FAS, Inc. was founded in 1983 and is headquartered in Fort Myers, Florida. CHILDREN'S PLACE: Rael Class Action Remains Stayed -------------------------------------------------- The Children's Place, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on March 21, 2019, for the fiscal year ended February 2, 2019, that the class action entitled, Rael v. The Children's Place, Inc., remains stayed. The Company is a defendant in Rael v. The Children's Place, Inc., a purported class action, pending in the U.S. District Court, Southern District of California. In the initial complaint filed in February 2016, the plaintiff alleged that the Company falsely advertised discount prices in violation of California's Unfair Competition Law, False Advertising Law, and Consumer Legal Remedies Act. The plaintiff filed an amended complaint in April 2016, adding allegations of violations of other state consumer protection laws. In August 2016, the plaintiff filed a second amended complaint, adding an additional plaintiff and removing the other state law claims. The plaintiffs' second amended complaint seeks to represent a class of California purchasers and seeks, among other items, injunctive relief, damages, and attorneys' fees and costs. The Company engaged in mediation proceedings with the plaintiffs in December 2016 and April 2017. The parties reached an agreement in principle in April 2017, and signed a definitive settlement agreement in November 2017, to settle the matter on a class basis with all individuals in the U.S. who made a qualifying purchase at The Children's Place from February 11, 2012 through the date of preliminary approval by the court of the settlement. The settlement is subject to court approval and provides for merchandise vouchers for class members who submit valid claims, as well as payment of legal fees and expenses and claims administration expenses. The court has stayed the matter, pending an appellate court ruling in another lawsuit to which the Company is not a party. The company said, "The settlement, if ultimately approved by the court, will result in the dismissal of all claims through the date of the court's preliminary approval of the settlement. However, if the settlement is rejected by the court, the parties will likely return to litigation, and in such event, no assurance can be given as to the ultimate outcome of this matter. In connection with the proposed settlement, the Company recorded a reserve for $5.0 million in its consolidated financial statements in the first quarter of Fiscal 2017." The Children's Place, Inc. operates as a children's specialty apparel retailer. The company operates through two segments, The Children's Place U.S. and The Children's Place International. The company was formerly known as The Children's Place Retail Stores, Inc. and changed its name to The Children's Place, Inc. in June 2014. The Children's Place, Inc. was founded in 1969 and is headquartered in Secaucus, New Jersey. CLEAR CHANNEL: Settlement of GAMCO Asset Management Suit Approved ----------------------------------------------------------------- Clear Channel Outdoor Holdings, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on March 5, 2019, for the fiscal year ended December 31, 2018, that the settlement agreement in GAMCO Asset Management, Inc. v. Hendrix, et al., has been approved by the court. On August 27, 2018, the stockholder of CCOH that had filed the derivative lawsuit in the Court of Chancery of the State of Delaware, captioned GAMCO Asset Management Inc. v. iHeartMedia Inc. et al., C.A. No. 12312-VCS (GAMCO Asset Management Inc.) filed a putative class action lawsuit in the Court of Chancery of the State of Delaware, captioned GAMCO Asset Management, Inc. v. Hendrix, et al., C.A. No. 2018-0633-JRS. The complaint names as defendants the Sponsor Entities and the members of CCOH's board of directors. The complaint alleges that minority shareholders in CCOH during the period November 8, 2017 to March 14, 2018 were harmed by decisions of the CCOH Board and the intercompany note committee of the Board relating to the Due from iHeartCommunications Note. Specifically, the complaint alleges that (i) the members of the intercompany note committee breached their fiduciary duties by not demanding payment under the Intercompany Note and issuing a simultaneous dividend after a threshold tied to the Company's liquidity had been reached; (ii) the CCOH board of directors breached their fiduciary duties by approving the Third Amendment rather than allowing the Intercompany Note to expire; (iii) the CCOH board of directors breached their fiduciary duties by not demanding payment under the Intercompany Note and issuing a simultaneous dividend after a threshold tied to the Company's liquidity had been reached; (iv) the Sponsor Entities breached their fiduciary duties by not directing the CCOH board of directors to permit the Intercompany Note to expire and to declare a dividend. The complaint further alleges that the Sponsor Entities aided and abetted the Board's alleged breach of fiduciary duties. The plaintiff sought, among other things, a ruling that the CCOH board of directors, the intercompany note committee, and the Sponsor Entities breached their fiduciary duties and that the Sponsor Entities aided and abetted the Board’s breach of fiduciary duty; and an award of damages, together with pre- and post-judgment interests, to the putative class of minority shareholders. On December 16, 2018, the Debtors, the Company, GAMCO Asset Management, Inc., Norfolk County Retirement System entered, the Sponsor Entities, and the Delaware Settlement Parties, through their respective counsel, entered into the Settlement Agreement that embodies the terms of (i) a global settlement of all direct or derivative claims by or on behalf of GAMCO and Norfolk, both individually and on behalf of the putative class of public shareholders of the Company, against certain members of the Company's board of directors, the Sponsor Entities, iHeartCommunications, iHeartMedia, the company and the Debtors, including the derivative lawsuit in the Court of Chancery of the State of Delaware and (ii) the Separation in accordance with the iHeart Plan of Reorganization. The Settlement Agreement contemplates that upon the Separation, (i) the cash sweep arrangement under the Corporate Services Agreement will terminate, (ii) any agreements or licenses requiring royalty payments to the Debtors for trademarks or other intellectual property will terminate and (iii) a new transition services agreement will supersede and replace the existing Corporate Services Agreement. The Debtors agreed to waive (i) the set-off for the value of the intellectual property transferred, including royalties and (ii) the repayment of the post-petition intercompany balance outstanding in favor of the Debtors as of December 31, 2018. In addition, the Settlement Agreement provides that after the Separation, (i) iHeartCommunications will provide the iHeart Line of Credit in an aggregate amount not to exceed $200 million for a period of no more than three years following the effective date of the iHeart Plan of Reorganization, (ii) iHeartMedia will indemnify CCOH for 50 percent of certain tax liabilities imposed on the company's in connection with the Separation on or prior to the third anniversary of the Separation in excess of $5.0 million, with iHeartMedia's aggregate liability limited to $15.0 million, and (iii) iHeartMedia will reimburse the company for one-third of potential costs relating to certain agreements between the company and third parties in excess of $10.0 million of such costs up to the first $35.0 million of such costs such that iHeartMedia will not bear more than $8.33 million of such costs. The parties agreed that the Company will recover 14.44 percent in cash on its allowed claim of $1,031.7 million under the Due From iHeartCommunications Note, and to mutual releases, including a release of all claims that have been asserted, could have been asserted or ever could be asserted with respect to the iHeart Chapter 11 Cases and the actions. The Settlement Agreement was approved by the United States District Court for the Southern District of Texas and the Bankruptcy Court in connection with the confirmation of the iHeart Chapter 11 Cases on January 22, 2019. Clear Channel Outdoor Holdings, Inc., an outdoor advertising company, owns and operates advertising display faces in the United States and internationally. It operates through two segments, Americas Outdoor Advertising and International Outdoor Advertising. The company was incorporated in 1995 and is headquartered in San Antonio, Texas. Clear Channel Outdoor Holdings, Inc. is a subsidiary of iHeartCommunications, Inc. CLOSET CANDY: Mclean Sues for Invasion of Privacy, Harassment ------------------------------------------------------------- MARY MCLEAN, individually and on behalf of all others similarly situated v. CLOSET CANDY BOUTIQUE, LLC, an Arizona Limited Liability Company, Case No. 9:19-cv-80362 (S.D. Fla., March 15, 2019), seeks injunctive relief under the Telephone Consumer Protection Act to halt the Defendant's alleged illegal conduct, which has resulted in the invasion of privacy, harassment, aggravation, and disruption of the daily life of thousands of individuals. Closet Candy Boutique, LLC, is an Arizona limited liability company whose principal office is located in Phoenix, Arizona. The Company is an online women's boutique.[BN] The Plaintiff is represented by: Andrew J. Shamis, Esq. SHAMIS & GENTILE, P.A. 14 NE 1st Avenue, Suite 1205 Miami, FL 33132 Telephone: (305) 479-2299 E-mail: ashamis@shamisgentile.com - and - Scott Edelsberg, Esq. EDELSBERG LAW, PA 19495 Biscayne Blvd #607 Aventura, FL 33180 Telephone: (305) 975-3320 E-mail: scott@edelsberglaw.com COLGATE ENTERPRISE: Faces Amay Suit over Labor Law Violations ------------------------------------------------------------- An employment-related class action complaint has been filed against Colgate Enterprise Corp., CS Bridge Corp., Old Time Scaffolding, Inc., Michael O'Farrell and Peter O'Farrell for violations of Fair Labor Standards Act and New York Labor Law. The case is captioned HENRY OSWALDO AMAY and ARMANDO AMAY, individually and on behalf of all others similarly situated, Plaintiffs, -against- COLGATE ENTERPRISE CORP., CS BRIDGE CORP., OLD TIME SCAFFOLDING, INC., and MICHAEL O'FARRELL and PETER O'FARRELL, as individuals, Defendants, Case No. 1:19-cv-02651 (S.D.N.Y., March 25, 2019). The Plaintiffs seek compensatory damages and liquidated damages in an amount exceeding $100,000. Colgate Enterprise Corp., CS Bridge Corp. and Old Time Scaffolding, Inc., owned and operated by Peter and Michael O'Farrell, are corporations organized and authorized under the laws of New York with a principal executive office at 1470 Bruckner Boulevard, Bronx, New York 10473. [BN] The Plaintiffs are represented by: Roman Avshalumov, Esq. HELEN F. DALTON & ASSOCIATES, PC 80-02 Kew Gardens Road, Suite 601 Kew Gardens, NY 11415 Telephone: (718) 263-9591 Facsimile: (718) 263-9598 CORIZON HEALTH: Court Narrows Claims in B. Morrelli's FLSA Suit --------------------------------------------------------------- The United States District Court for the Eastern District of California issued a Memorandum Decision and Order granting in part and denying in part Defendants' Motion to Dismiss in the case captioned BRUCE MORRELLI, et al., Plaintiffs, v. CORIZON HEALTH, INC., a Delaware corporation, and DOES 1 through 25, inclusive Defendants. No. 1:18-cv-1395-LJO-SAB. (E.D. Cal.). The Plaintiffs were employed by the Defendant as Licensed Vocational Nurses (LVNs) and Registered Nurses (RNs) to provide health care services at correctional facilities in Tulare County. The Plaintiffs, on behalf of themselves and others similarly situated, allege the Defendant established and carried out a policy which violated California's wage-and-hour laws in that the Plaintiffs and putative class members were not paid wages according to California law for hours they were required to work such as during statutory lunch and break periods and for overtime hours. The Plaintiffs filed a complaint against the Defendant stating seven causes of action pursuant to California Law: (1) failure to pay overtime (2) failure to provide compliant meal breaks (3) failure to provide compliant rest breaks (4) failure to pay minimum wages (5) failure to provide accurate wage statements (6) failure to pay all wages due and owing at the time of employment termination (7) and for violation of California's Unfair Business Practices Act. The original complaint was dismissed, the Plaintiffs filed a First Amended Complaint (FAC), and presently before the Court is the Defendant's Motion to Dismiss the FAC. Plaintiffs' Overtime Claims The Plaintiffs allege the Defendant violated California Labor Code Section 510 by failing to pay the Plaintiffs overtime wages for the shifts they worked in excess of 8 hours per day and double-time compensation for shifts exceeding 12 hours. In relevant part, Section 510(a) provides, eight hours of labor constitutes a day's work. Any work in excess of eight hours in one workday and any work in excess of 40 hours in any one workweek and the first eight hours worked on the seventh day of work in any one workweek shall be compensated at the rate of no less than one and one-half times the regular rate of pay for an employee. Any work in excess of 12 hours in one day shall be compensated at the rate of no less than twice the regular rate of pay for an employee. Overtime Compensation for Shifts Exceeding 8 Hours Per Day The Defendant again argues the Plaintiffs' overtime claims are insufficiently plead because (1) the Plaintiffs fail to allege a specific workweek when any one of them worked overtime hours for which they were not compensated; (2) the Plaintiffs' allegations lack personal knowledge because they are made on information and belief which cannot be credited as true; and (3) the Defendant was approved to offer an alternative workweek schedule of three 12-hour shifts per week, thus the Plaintiffs cannot state overtime claims based on those 12-hour shifts. The Plaintiffs argue they are not required to allege a particular instance of unpaid overtime because the Plaintiffs have pled they worked three 12-hour shifts each workweek, and they are owed 4.5 hours of half-time wages -- i.e., their allegations are sufficiently specific under Landers v. Quality Communications, Inc., 771 F.3d 638 (9th Cir. 2014). The Plaintiffs also contend Defendant's alternative workweek schedule argument is subject to factual and legal disputes about whether any election for an alternative work schedule is effective as to Plaintiffs and the putative class, and this cannot be resolved at the pleading stage. The Defendant responds that the only exception to the specific-instance pleading requirement of Landers occurs when a plaintiff has alleged other factual matter sufficient to allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The Defendant argues the Plaintiffs have pled nothing more than a conclusory assertion they regularly worked more than 8 hours per day, occasionally more than 12 hours per day, and were not properly compensated with overtime pay. The Court finds that the Plaintiffs' overtime claims for shifts worked in excess of eight hours is sufficiently pled. In Landers, the Ninth Circuit considered the pleading standard post-Twombly and Iqbal for wage and hour claims under the FLSA (Fair Labor Standards Act). The plaintiff in Landers alleged the defendants failed to pay him the wages he was due, but provided no detail regarding a given workweek when he was not paid his wages. While the plaintiff had alleged he worked more than 40 hours per week for the defendants, he never alleged what conditions forced him to work longer than 40 hours per week or how frequently his workweek exceeded 40 hours. He offered only generalized theories about how the defendants implemented various policies that resulted in the failure to pay proper overtime. Notably absent from these allegations was any detail regarding how any of these policies applied to the plaintiff, or gave an example of a particular workweek where he was subject to policies that resulted in the failure to properly compensate him with overtime pay. In affirming dismissal of the plaintiff's claim, the court noted a plaintiff could establish a plausible [FLSA overtime claim by estimating the length of her average workweek during the applicable period and the average rate at which she was paid, the amount of overtime wages she believes she is owed, or any other facts that will permit the court to find plausibility. The Court notes that the Plaintiffs here have done more than allege they worked more than 8 hours per day for which they were not properly compensated. Plaintiff allege their normal and assigned work schedule was three 12-hour shifts per week for which they were not paid any overtime. This is distinct from the factual allegations considered in Landers or of those considered by other federal appellate courts whose opinions Landers cited with approval. The Defendant argues the Plaintiffs' allegations are insufficient to the extent they are made on information and belief and not their personal knowledge. Setting aside a longer discussion of whether information and belief pleading is acceptable post-Iqbal and Twombly, even if the allegations based on information and belief render that particular allegation insufficient, the use of that phrase as it pertains to the overtime claims for shifts longer than 8 hours does not invalidate any essential allegation. Plaintiffs allege they are informed and believe that the Defendant, and each of them, paid the Plaintiffs and class members straight time wages for each twelve[-]hour shift worked. Disregarding this allegation, the Plaintiffs nonetheless allege they were not paid overtime wages for hours they worked in excess of 8 hours per day. Double-Time Compensation for Work Performed Beyond 12 Hours in a Shift Pursuant to California Labor Code Section 510(a), work in excess of 12 hours in one day shall be compensated at the rate of no less than twice the regular rate of pay for an employee. The FAC alleges the Plaintiffs occasionally worked more than 12 hours per shift. The FAC alleges an example of when a shift longer than 12 hours was required: when the RN or LVN who was scheduled to relieve the Plaintiffs or class members after their regularly scheduled twelve (12) hour shift called in sick or did not show up to work, the Plaintiffs or class members were required to remain at work, continuing their patient care, until a replacement could be found. This threadbare allegation lacks plausibility: it does not indicate what occasionally meant for any one of the named Plaintiffs, or in lieu of that, provide a specific example of when an over-twelve-hour shift was required of one of the named Plaintiffs and the amount of time they ended up working past 12 hours in that particular instance. Exact dates are not required, but there must be facts that provide an inference this happened on at least one occasion. This claim to double-time recovery is not well pled. Overtime for Workweeks Longer than 40 Hours The Plaintiffs are unable to allege a plausible claim for overtime based on a workweek that is longer than 40 hours. The Plaintiffs allege only that they worked three 12-hour shifts per week. Even in the proposed SAC, the Plaintiffs only allege three 12.5 hour shifts per week which is still not more than 40 hours per week. There is only a single allegation the Plaintiffs occasionally worked more than 40-hours per week. The Plaintiffs do not describe how often this happened or facts from which it can be inferred they actually worked more than 40 hours in any given week of their employment. This claim of violation of Section 510 merely tracks the statutory language and is insufficient to state a plausible claim for overtime based on a workweek longer than 40-hours. This bare allegation of an overtime violation under Section 510 is dismissed, and it is clear from the proposed SAC that Plaintiffs are unable to marshal additional facts to state a cognizable claim on this ground. Meal and Rest Break Claims The California Labor Code requires employers to provide off-duty meal periods of at least 30 minutes for each day worked of five hours or more, and to provide a second meal period of at least 30 minutes for each day worked of 10 hours or more. The Defendant argues the Plaintiffs' meal- and rest-break claims are not pled with enough factual specificity to render it plausible that meal and rest-break violations occurred. The Defendant maintains the Plaintiffs fail to cite a single example of such an occasion where they had to forego breaks, and not a single Plaintiff alleges that he or she was ever the only nursing professional staffed on a shift or was, on at least one specific occasion, prohibited from leaving the premises as a result of the Defendant's policies or practices. The Plaintiffs note they never alleged they all worked at the same county facility or that they worked solely at one county facility the allegation they worked alone as a sole nursing professional on a scheduled shift is not implausible. The Plaintiffs also maintain their allegations of what precluded them from meal breaks are not conclusory and threadbare they specifically allege the policy that precluded them from taking breaks during their shift and that they were forced to punch out during their breaks even though they were not relieved of all their duties. The Court therefore finds that the Plaintiffs meal- and rest-break claims are adequately alleged. Unpaid Minimum Wages California Labor Code Section 1194 requires employers to pay at least minimum wages for all the time Plaintiffs and putative class members were suffered or permitted to work or were under their employer's control. The Plaintiffs allege the Defendant automatically deducted time from the Plaintiffs' total hours worked for meal periods that were not provided, during which times the Plaintiffs and putative class members were working and/or remained under the Defendant's control in that they were not permitted to leave the work premises. The Defendant argues this claim is predicated entirely on the Plaintiffs' meal- and rest-break claims, which the Defendant maintains are insufficiently pled. However, the Plaintiffs meal- and rest-break claims are adequately stated. The Plaintiffs unpaid minimum wage claim predicated on the meal-and rest-break claims is therefore viable. Failure to Provide Accurate Wage Statements California Labor Code Ssection 226 requires employers to provide employees with an accurate itemized statement in writing showing nine critical payroll elements. The Defendant first argues the Plaintiffs' allegations supporting their inaccurate wage statement claim are conclusory and must be dismissed. This claim is predicated in large part on the Defendant's purported failure to pay overtime due for every shift the Plaintiffs worked and for all meal- and rest-breaks which the Plaintiffs allegedly missed because of the policy they were to remain on property and available for work during their breaks. The Plaintiffs have adequately alleged they received wage statements that were silent as to the total hours they worked (e.g., overtime hours and meal and rest breaks), the wage statements were inaccurate for that reason, and they could not promptly and easily determine the total hours worked and the applicable hourly rates -- e.g., regular, overtime and double-time rates. The Court concludes the Plaintiffs sufficiently allege an injury under Section 226, and their inaccurate wage-statements claim is viable. Waiting Time Penalties Claim and California Business & Professions Code Section 17200 The Plaintiffs' Sixth Cause of Action arises under California Labor Code Sections 201, 202, and 203 which require employers to pay all wages due and owing immediately upon an employee's involuntary termination of employment, and within 72 hours to employees who quit voluntarily. The Plaintiffs allege that the Defendant failed to pay the Plaintiffs all wages due on employment termination because the Defendant knew it had failed to pay overtime or double-time wages and wages had been deducted for off-duty meal periods that were not provided. The Defendant argues they are predicated on the overtime, minimum wage, and meal/rest break claims which the Defendant maintains are all deficiently pled. The predicate claims are adequately alleged. As the allegations pertaining to those claims are incorporated by reference, the wait-time penalty and Section 17200 claims are sufficiently pled. As to waiting time penalties, the Plaintiffs allege their employment was involuntarily terminated in June 2018 when the Defendant lost its contract with Tulare County. The Plaintiffs further allege they were not paid for any overtime or missed meal and rest breaks which are all wages that allegedly should have been paid at termination. This claim is sufficiently pled. Pertaining to Section 17200, because Plaintiffs have alleged sufficient predicate claims, the Section 17200 claim is also viable. Accordingly, the Defendant's Motion to Dismiss is granted as follows: a. the Plaintiffs' Cal. Labor Code Section 510 claim for failure to pay overtime compensation for shifts exceeding 40 hours in a workweek is dismissed with prejudice and without leave to amend; b. the Plaintiffs' Cal. Labor Code Section 510 claim for double-time compensation for shifts longer than 12 hours in a day is dismissed with leave to amend as set forth in the proposed Second Amended Complaint; and c. the Plaintiffs' prayer for injunctive relief is dismissed with prejudice and without leave to amend. The Defendant's Motion to Dismiss is denied in all other respects. The Court directs the Plaintiffs to file their proposed SAC with the noted amendments. A full-text copy of the District Court's February 25, 2019 Memorandum Decision and Order is available at http://tinyurl.com/y628kqkvfrom Leagle.com. Bruce Morrelli, Plaintiff, represented by Andrew Butler Jones -- ajones@wagnerjones.com -- Wagner and Jones, Daniel M. Kopfman, Wagner and Jones & Lawrence Mark Artenian, Wagner, Jones, Kopfman & Artenian LLP. Jose Rojas, Janice Andres, Sandra Cruz-Perez, Victoria Martinez, Veronica Vizcarra & Laura Padilla, Plaintiffs, represented by Daniel M. Kopfman, Wagner and Jones & Lawrence Mark Artenian, Wagner, Jones, Kopfman & Artenian LLP. Corizon Health, Inc., a Delaware corporation, Defendant, represented by Barbara Allyn Blackburn -- bblackburn@littler.com -- Littler Mendelson & Britney Noelle Torres -- btorres@littler.com -- Littler Mendelson, P.C. CRAIG MCKENZIE: Gruber Files Class Action in Minnesota ------------------------------------------------------ A class action lawsuit has been filed against McKenzie, et al. The case is styled as Jon D Gruber, Individually and on Behalf of All Others Similarly Situated, Plaintiff v. Craig M McKenzie, Timothy R Brady, Gabriel G Claypool, Michael L. Reger, Terry H Rust, Paul M Crownie, David J Fellon, Gary L Alvord, James L Thornton, Ryan R. Gilbertson, Ryan R. Gilbertson, Joseph Clark Reger, individually and as Custodian for W.J.R. and J.M.R. (UTMA), Weldon W. Gilbertson, individually and as Custodian for H.G. (UTMA), and as Trustee of the Ryan Gilbertson 2012 Family Irrevocable Trust, Total Depth Foundation, Jessica C Gilbertson also known as: Jessica Medlin, Kellie Tasto as Custodian for H.G. (UTMA), Defendants, Case No. 0:19-mc-00019 (D. Minn., Mar. 26, 2019). The nature of suit is stated as Civil Miscellaneous Case. Craig M. McKenzie, is the former chief executive officer at ZaZa Energy Corporation.[BN] The Plaintiff appears pro se. The Defendants are represented by: Michael E Rowe, Esq. Dorsey & Whitney LLP 50 S 6th St Ste 1500 Mpls, MN 55402-1498 Phone: (612) 492-6724 Fax: (612) 340-2828 Email: rowe.michael@dorsey.com CV SCIENCES: Bid to Dismiss Consolidated Smith Class Suit Underway ------------------------------------------------------------------ CV Sciences, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on March 12, 2019, for the fiscal year ended December 31, 2018, that the company is seeking dismissal of a consolidated class action lawsuit initiated by David Smith. On August 24, 2018, David Smith filed a purported class action complaint in Nevada District Court alleging certain misstatements were contained in financial filings that led to stock price fluctuations and resulting financial harm. Several additional individuals filed similar claims. On November 15, 2018, the Court consolidated the actions and appointed Richard Ina, Trustee for the Ina Family Trust as Lead Plaintiff for the consolidated actions. On January 4, 2019, Counsel for Lead Plaintiff Richard Ina, Trustee for the Ina Family Trust filed a "consolidated amended complaint". On March 5, 2019, the company filed a motion to dismiss the action. CV Sciences said, "Management intends to vigorously defend the allegations. Since no discovery has been conducted and the case remains stayed, an estimate of the possible loss or recovery cannot be made at this time." CV Sciences, Inc. operates as a life science company. It operates through two segments, Specialty Pharmaceuticals and Consumer Products. CV Sciences, Inc. was founded in 2010 and is based in Las Vegas, Nevada. CVR REFINING: Bought Common Unitholders on the Cheap, Barai Says ---------------------------------------------------------------- BHARAT H. BARAI, INDIVIDUALLY AND AS TRUSTEE OF BHARAT H. BARAI, MD & PANNA B. BARAI, MD TRUST FBO SUNITI MEDICAL CORPORATION MPP & TRUST UA 11/30/87 on behalf of themselves and all other similarly situated former unitholders of CVR REFINING, LP v. CVR REFINING, LP, CVR ENERGY, INC., CVR REFINING HOLDINGS, LLC, CVR REFINING GP, LLC, ICAHN ENTERPRISES, L.P., CARL C. ICAHN, SUNGHWAN CHO, JONATHAN FRATES, DAVID L. LAMP, ANDREW LANGHAM, LOUIS J. PASTOR, KENNETH SHEA, JON R. WHITNEY, AND GLENN R. ZANDER, Case No. 2019-0210 (Del. Ch., March 15, 2019), alleges that the Defendants, among other things, breached the terms of the First Amended and Restated Agreement of Limited Partnership of CVR Refining, LP, dated as of January 23, 2013 (the "Partnership Agreement"). This suit challenges the multi-step plan by which Icahn Enterprises, L.P. ("Icahn"), an investment firm controlled by Carl Icahn, acting through various entities, weaponized a call right in the limited partnership agreement of the CVR Refining, LP (the "Partnership") in order to buy out the Partnership's public common unitholders on the cheap. The Partnership is an oil refiner and marketer of transportation fuels organized as a limited partnership under the laws of the state of Delaware. It is headquartered in Sugar Land, Texas. CVR Refining GP, LLC (the "General Partner") is a limited liability company organized and existing under the laws of the state of Delaware, and is an indirectly wholly owned subsidiary of CVR Energy through CVR Holdings. The General Partner is the general partner of the Partnership, and has direct responsibility for conducting the Partnership's business and managing its operations. CVR Holdings is a limited liability company organized and existing under the laws of the state of Delaware, and is an indirectly wholly owned subsidiary of CVR Energy. CVR Holdings owns and controls the General Partner. CVR Energy is a corporation organized and existing under the laws of the state of Delaware. The Partnership, CVR Holdings, and the General Partner are now wholly owned subsidiaries of CVR Energy. At all relevant times, CVR Energy controlled the General Partner. Icahn is a limited partnership organized and existing under the laws of the state of Delaware. At all relevant times, Icahn and its affiliates owned approximately 82% of the outstanding common stock of CVR Energy. At all relevant times, Icahn either directly or indirectly controlled the actions of CVR Energy, CVR Holdings, the General Partner, and thus the Partnership. Carl Icahn served as Chairman of the Board of the General Partner from January 2013 until July 2018, as well as Chairman of the Board of CVR Energy from June 2012 until July 2018. At all relevant times, Carl Icahn, directly or indirectly, wholly owned the general partner of Icahn and owned approximately 91% of Icahn's outstanding depositary units. The other Individual Defendants are directors and officers of one or more of the Corporate Defendants.[BN] The Plaintiffs are represented by: Joel Friedlander, Esq. Jeffrey Gorris, Esq. Christopher P. Quinn, Esq. FRIEDLANDER & GORRIS P.A. 1201 N. Market Street, Suite 2200 Wilmington, DE 19801 Telephone: (302) 573-3500 E-mail: jfriedlander@friedlandergorris.com jgorris@friedlandergorris.com cquinn@friedlandergorris.com - and - Jessica Zeldin, Esq. ROSENTHAL MONHAIT & GODDESS 919 N. Market Street P.O. Box 1070 Wilmington, DE 19899-1070 Telephone: (302) 656-4433 E-mail: jzeldin@rmgglaw.com - and - Mark Lebovitch, Esq. Adam Wierzbowski, Esq. BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP 1251 Avenue of the Americas New York, NY 10020 Telephone: (212) 554-1400 E-mail: markl@blbglaw.com adam@blbglaw.com - and - Lawrence Deutsch, Esq. Michael Dell'Angelo, Esq. Barbara A. Podell, Esq. BERGER MONTAGUE PC 1818 Market Street, Suite 3600 Philadelphia, PA 19103 Telephone: (215) 875-3062 E-mail: ldeutsch@bm.net mdellangelo@bm.net bpodell@bm.net - and - Lawrence P. Eagel, Esq. Brandon Walker, Esq. Marion Passmore, Esq. BRAGAR EAGEL & SQUIRE, PC 885 Third Avenue, Suite 3040 New York, NY 10022 Telephone: (212) 308-5858 E-mail: eagel@bespc.com walker@bespc.com passmore@bespc.com - and - Frank A. Bottini, Jr., Esq. BOTTINI & BOTTINI, INC. 7817 Ivanhoe Avenue, Suite 102 La Jolla, CA 92037 Telephone: (858) 914-2001 E-mail: fbottini@bottinilaw.com CVR REFINING: Mikulich Contests Public Common Unitholders' Buyout ----------------------------------------------------------------- ED MIKULICH, on behalf of himself and all other similarly situated former unitholders of CVR REFINING, LP v. CVR REFINING, LP, CVR ENERGY, INC., CVR REFINING HOLDINGS, LLC, CVR REFINING GP, LLC, ICAHN ENTERPRISES, L.P., CARL C. ICAHN, SUNGHWAN CHO, JONATHAN FRATES, DAVID L. LAMP, ANDREW LANGHAM, LOUIS J. PASTOR, KENNETH SHEA, JON R. WHITNEY, and GLENN R. ZANDER, Case No. 2019-0213- (Del. Ch., March 15, 2019), arises out of the Defendants' alleged unlawful scheme and plan to enable Carl Icahn to exercise a call right to buy out CVR Refining, LP's (the "Partnership's") public common unitholders at less than half their deserved consideration. In January 2019, CVR Refining GP, LLC (the "General Partner"), the general partner of the Partnership, held the call right to purchase all common units held by the public "at the greater of (x) the Current Market Price as of the date three days prior to the date that the notice . . . is mailed or (y) the highest price paid by the General Partner or any of its Affiliates for any such Limited Partner Interest of such class purchased during the 90-day period preceding the date that the notice . . . is mailed" (the "Call Right"). Before this assignment, the Plaintiff alleges, Carl Icahn and the Defendants, including the General Partner, caused a significant decrease in the price of the Partnership's common units, which permitted them to exercise the General Partner's call right at a lower price than otherwise would have been paid for the common units. The Plaintiff contends that this unlawful scheme was in breach of the implied covenant of good faith and fair dealing incorporated in the First Amended and Restated Agreement of Limited Partnership of CVR Refining, LP, dated as of January 23, 2013. The Partnership is a Delaware limited partnership, and maintains its principal executive offices in Sugar Land, Texas. The General Partner is a Delaware limited liability company, and is an indirectly wholly owned subsidiary of CVR Energy through CVR Holdings. The General Partner is the general partner of the Partnership and conducts and operates the Partnership's business. CVR Refining Holdings, LLC, is a Delaware limited liability company indirectly wholly owned by CVR Energy. CVR Holdings owns and controls the General Partner, and at all relevant times owned 97,315,764 common units of the Partnership, or approximately 66% of the outstanding common units. Icahn Enterprises, L.P. ("IEP") is a Delaware limited partnership, with depositary units listed for trading on the Nasdaq under the ticker symbol "IEP." At all relevant times IEP and its affiliates owned approximately 82% of the outstanding common stock of CVR Energy. Carl Icahn has served as Chairman of the Board of the General Partner from January 2013 through July 2018, and as Chairman of the Board of CVR Energy from June 2012 through July 2018. Defendant Icahn owns and has owned the general partner of IEP, and owned approximately 91% of IEP's outstanding depository units. Defendant Icahn, at all relevant times, directly or indirectly controlled the actions of IEP, CVR Energy, CVR Holdings, the General Partner, and the Partnership. The other Individual Defendants are directors and officers of one or more of the Corporate Defendants.[BN] The Plaintiff is represented by: Ryan M. Ernst, Esq. O'KELLY ERNST & JOYCE, LLC 901 Market Street, Suite 1000 Wilmington, DE 19801 Telephone: (302) 778-4000 Facsimile: (302) 295-2873 E-mail: rernst@oelegal.com - and - Donald J. Enright, Esq. Elizabeth K. Tripodi, Esq. LEVI & KORSINSKY, LLP 1101 30th Street, N.W., Suite 115 Washington, DC 20007 Telephone: (202) 524-4290 Facsimile: (202) 337-1567 E-mail: denright@zlk.com etripodi@zlk.com CVS PHARMACY: Tashjian Sues over Solicitation of Prescriptions -------------------------------------------------------------- CHARLES TASHJIAN, individually and on behalf of all others similarly situated, Plaintiff v. CVS PHARMACY, INC.; CVS HEALTH CORPORATION; and CVS CAREMARK INC., Defendants, Case No. 19-06550 (Mass. Super., Suffolk Cty., Feb. 27, 2019) alleges that the Defendants' scheme of soliciting prescriptions from consumers' medical providers which the Defendants could then sell to consumers constitutes violation of the Breach of the Fiduciary Duty of Confidentiality, Negligence, Breach of Privacy, and Tortious Misappropriation of Private and Personal Information. According to the complaint, the Defendants falsely represented to the medical providers that the Defendants had spoken with the consumer, and that the consumer requested that the Defendants contact the medical providers to obtain certain prescription medicines. The Defendants' scheme was perpetrated despite the fact that the Defendants knew that their pharmacists had not, in fact, spoken to the consumers about contacting the medical providers and the consumers had not, requested that Defendants contact the medical providers. As part of the scheme, the Defendants never notify the medical providers or the patient that the Defendants were being compensated for sending the letters, nor did the scheme notify the medical providers that the Defendants had not spoken with the consumer, and that the consumer did not request the Defendants to send the letters. CVS Pharmacy, Inc. operates pharmacy and drug stores in the United States. Its drug stores offer health products and medicines; vitamins; and personal care, skin care, beauty, and home health care products. The company also provides drug information; health information; and new, transfer, refill, and transfer prescriptions. The company sells products through its retail and online stores. CVS Pharmacy, Inc. was formerly known as CVS, Inc. and changed its name to CVS Pharmacy, Inc. in February 1997. The company was incorporated in 1969 and is based in Woonsocket, Rhode Island. CVS Pharmacy, Inc. operates as a subsidiary of CVS Health Corporation. [BN] The Plaintiff is represented by: Robert E. Mazow, Esq. Michael C. Forrest, Esq. FORREST LAMOTHE MAZOW MCCULLOUGH YASI & YASI, P.C. 2 Salem Green, Suite 2 Salem, MA 01970 Telephone: (617) 231-7829 E-mail: rmazow@forrestlamothe.com mforrest@forrestlamothe.com DECKERS OUTDOOR: Rivera Files Class Suit in Cal. Super. Ct. ----------------------------------------------------------- A class action lawsuit has been filed against Deckers Outdoor Corporation. The case is styled as Luis Rivera, individually and on behalf of all others similarly situated, Plaintiff v. Deckers Outdoor Corporation, a Delaware corporation, Deckers Retail, LLC, a California limited liability company d/b/a UGG, Does 1-100, inclusive, Defendants, Case No. CGC19574786 (Cal. Super. Ct., San Francisco Cty., Mar. 26, 2019). The case type is stated as "Other Non-Exempt Complaints". Deckers Outdoor Corporation, together with its subsidiaries, designs, markets, and distributes footwear, apparel, and accessories for casual lifestyle use and high performance activities.[BN] The Plaintiff is represented by Stanley D. Saltzman, Esq. DEL TACO: Discovery Still Ongoing in Former Calif. Employee Suit ---------------------------------------------------------------- Del Taco Restaurants, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on March 18, 2019, for the fiscal year ended January 1, 2019, that discovery is still ongoing in the purported class action suit initiated by a former employee of the company. In March 2014, a former Del Taco employee filed a purported class action complaint alleging that Del Taco has not appropriately provided meal breaks and failed to pay wages to its California hourly employees. Discovery is in process and Del Taco intends to assert all of its defenses to this threatened class action and the individual claims. Del Taco has several defenses to the action that it believes should prevent the certification of the class, as well as the potential assessment of any damages on a class basis. Del Taco said, "Legal proceedings are inherently unpredictable, and the Company is not able to predict the ultimate outcome or cost of the unresolved matter. However, based on management's current understanding of the relevant facts and circumstances, the Company does not believe that these proceedings give rise to a probable and estimable loss and should not have a material adverse effect on the Company's financial position, operations or cash flows. Therefore, Del Taco has not recorded any amount for the claim as of January 1, 2019." No further updates were provided in the Company's SEC report. Del Taco Restaurants, Inc. operates a chain of fast food restaurants. The company consists of two separate Mexican fast-food groups, 79 Del Taco units and 36 Taco Villa restaurants. The company offers Mexican food items, such as tacos, burritos, quesadillas, burgers, French fries, and soft drinks. The company was incorporated in 1983 and is based in Atlanta, Georgia. Del Taco Restaurants, Inc. operates as a subsidiary of W.R. Grace & Co. DIPLOMAT PHARMACY: Still Defends Class Action in Michigan --------------------------------------------------------- Diplomat Pharmacy, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on March 18, 2019, for the fiscal year ended December 31, 2018, that the company continues to defend a putative class action complaint filed in the U.S. District Court for the Eastern District of Michigan. On November 10, 2016, a putative class action complaint was filed in the U.S. District Court for the Eastern District of Michigan against Diplomat Pharmacy, Inc. and certain officers of the Company. Following the appointment of lead plaintiffs and lead counsel, an amended complaint was filed on April 11, 2017. The amended complaint alleges violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 in connection with public filings made between February 29, 2016 and November 2, 2016 (the "potential class period"). The plaintiff seeks to represent a class of shareholders who purchased stock in the potential class period. The complaint seeks unspecified monetary damages and other relief. The Company filed a motion to dismiss the amended complaint on May 24, 2017. The court issued orders denying the Company's motion to dismiss on January 19, 2018 and the Company's motion for reconsideration of its motion to dismiss on August 9, 2018. Diplomat Pharmacy said, "Management believes the complaint and allegations to be without merit and intends to vigorously defend itself against the action. The Company is unable at this time to determine whether the outcome of the litigation would have a material impact on its results of operations, financial condition or cash flows." No further updates were provided in the Company's SEC report. Diplomat Pharmacy, Inc. operates as an independent specialty pharmacy in the United States. The company operates through Specialty and PBM (pharmacy benefit management) segment. The company was founded in 1975 and is headquartered in Flint, Michigan. DOYLE MOVING: Rodriguez Seeks Wages & Overtime for Laborers ----------------------------------------------------------- ALBERTO RODRIGUEZ, on behalf of himself and all others similarly situated, the Plaintiff, vs. DOYLE MOVING & STORAGE, INC., a Colorado corporation, and ANGELA DOYLE, an individual, the Defendants, Case No. 1:19-cv-00826 (D. Colo, March 19, 2019), seeks wages for all hours worked and overtime compensation at the proper regular rates of pay under the Colorado Minimum Wage Order and the Fair Labor Standards Act of 1938. The action is brought on behalf of all persons employed by Doyle Moving and Storage, Inc. in any of the following positions: Lumpers (day laborers paid on a daily basis) Warehousemen, Movers, Packers, Unloaders, and individuals holding comparable positions with different titles ("Laborers") employed by DMS. The Plaintiff began his employment with DMS as a Laborer in or around April 2018, and was terminated from his employment on March 16, 2019. During his employment, Plaintiff, like most DMS employees, was expected to fill numerous roles with DMS depending on the needs of the day. In a typical day, the Plaintiff could be involved in packing and moving household goods from a dwelling to a truck, driving the truck to the warehouse, unloading the truck (including operating a forklift), and related tasks. The same is true of all members of the Collectives and the Colorado Classes, though as a general matter the duties of women members of the Collectives and the Colorado Classes are restricted to packing due to the physical strength required for the other tasks. According to the complaint, DMS lacks a policy in which Laborers are permitted regular breaks during the day, and Laborers typically do not receive breaks required by the Colorado Wage Order.Laborers regularly work over 40 hours in each workweek. However, because of DMS's manipulations of the time records (and in particular the automatic deduction of thirty minutes per work day, or two and a half hours per workweek, assuming five work days), not all hours are even counted in calculating pay for Laborers. Laborers often work more than 12 hours in a work day. On those occasions on which the (manipulated and inaccurate) time records reflect hours exceeding 12 in a work day or 40 in a workweek, DMS pays for there excess hours at straight time rather than paying the overtime premium (time-and-a-half) required by FLSA and the Colorado Wage Order.[BN] Attorneys for the Plaintiff: Paul F. Lewis, Esq. Michael D. Kuhn, Esq. Andrew E. Swan, Esq. LEWIS | KUHN | SWAN PC 620 North Tejon Street, Suite 101 Colorado Springs, CO 80903 Telephone: (719) 694-3000 Facsimile: (866) 515-8628 E-mail: plewis@lks.law mkuhn@lks.law aswan@lks.law ESSEX 123 INC: Fails to Pay Proper Wages, Romero et al. Claim ------------------------------------------------------------- JOSE ROMERO; and ALBERTO GUEVARA, individually and on behalf of all others similarly situated, Plaintiffs v. ESSEX 123 INC. d/b/a CHAMPION PIZZA; NEW ASTORIA CORP. d/b/a CHAMPION PIZZA; KEH CORP. d/b/a CHAMPIOIN PIZZA; NJK CORP. d/b/a CHAMPION PIZZA COLUMBUS; MHS PIZZA CORP. d/b/a CHAMPION PIZZA LUDLOW; RIGHT; RIGHT BRAIN PIZZA BRAIN PIZZA CORP. d/b/a CHAMPION PIZZA; TAE SUN KIM a/k/a EDWARD KIM; JOSEPH GUEVARA; and HAKKI AKDENIZ, Defendants, Case No. 1:19-cv-01690 (S.D.N.Y., Feb. 22, 2019) seeks to recover from the Defendant unpaid wages and overtime compensation, interest, liquidated damages, attorneys' fees, and costs. The Plaintiff Romero was employed by the Defendants as counter worker. The Plaintiff Guevara was employed as pizza maker, cook, and delivery worker. Essex 123 Inc. d/b/a Champion Pizza manufactures food products. The Company specializes in pizzas. [BN] The Plaintiffs are represented by: Louis Pechman, Esq. Vivianna Morales, Esq. Jaime Sanchez, Esq. PECHMAN LAW GROUP PLLC 488 Madison Avenue, 17th Floor New York, NY 10022 Telephone: (212) 583-9500 E-mail: pechman@pechmanlaw.com morales@pechmanlaw.com sanchez@pechmanlaw.com FARMLAND PARTNERS: April 15 Deadline to Answer Amended Complaint ---------------------------------------------------------------- In the case, Mariconda v. Farmland Partners Inc., the defendants' deadline to respond to the consolidated amended complaint is April 15, 2019, according to Farmland Partners Inc.'s Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2018. On July 11, 2018, a purported class action lawsuit, captioned Kachmar v. Farmland Partners, Inc. (the Kachmar Action"), was filed in the United States District Court for the District of Colorado against the Company and certain of its officers by a purported Company stockholder. The complaint alleges, among other things, that the Company's disclosure related to the FPI Loan Program was materially false and misleading in violation of the Securities Exchange Act of 1934, as amended, and Rule 10b-5 promulgated thereunder. On August 17, 2018, a second purported class action, captioned Mariconda v. Farmland Partners Inc. (the "Mariconda Action") was filed in the United States District Court for the District of Colorado, alleging substantially identical claims as the Kachmar Action. Several purported shareholders moved to consolidate the Kachmar Action and the Mariconda Action and for appointment as Lead Plaintiff. On November 13, 2018, the plaintiff in the Kachmar action voluntarily dismissed the Kachmar Action. On December 3, 2018, the court appointed two purported FPI shareholders, the Turner Insurance Agency, Inc. and Cecilia Turner (the "Turners"), as lead plaintiffs in the Mariconda Action. The Turners filed a consolidated amended complaint in the Mariconda Action on March 11, 2019. The defendants' deadline to respond to the consolidated amended complaint is April 15, 2019. The Company said that it can provide no assurances as to the outcome of this litigation or provide an estimate of related expenses at this time. Farmland Partners Inc. is an internally managed real estate company that owns and seeks to acquire high-quality North American farmland and makes loans to farmers secured by farm real estate. The company is based in Denver, Colorado. FIAT CHRYSLER: Faces Maccariella Suit Over Vehicle Emission Issues ------------------------------------------------------------------- JAMES MACCARIELLA, JR., on behalf of himself and all others similarly situated v. FIAT CHRYSLER AUTOMOBILES N.V., and FCA US LLC, Case No. 2:19-cv-10791-SJM-APP (E.D. Mich., March 15, 2019), alleges that Fiat Chrysler consumers did not receive what they paid for when they bought or leased one of these gasoline-powered vehicles: a. 2011-2016 MY Dodge Journey (FWD); b. 2011-2014 MY Chrysler 200/Dodge Avenger (FWD); c. 2011-2012 MY Dodge Caliber (FWD, CVT); and d. 2011-2016 MY Jeep Compass/Patriot (FWD, CVT). Mr. Maccariella, the owner of two Class Vehicles, a 2015 Jeep Patriot and a 2016 Jeep Compass, contends that he would not have purchased the Class Vehicles, or would have paid less for his vehicles, had he known that they would not comply with emission standards; that they require one or more emissions repairs to become emissions compliant; that they may not retain their resale value; and that they may not in the future achieve the advertised performance and/or fuel economy. FCA US LLC is a Delaware limited liability company. Fiat Chrysler Automobiles N.V. is FCA's corporate parent. In 2009, Fiat's predecessor, Fiat S.p.A., began its acquisition of FCA's predecessor, Chrysler Group LLC. The acquisition was completed in January 2014, at which time Chrysler Group LLC became a wholly-owned indirect subsidiary of Fiat and was renamed FCA US LLC. FCA's principal place of business and headquarters is located in in Auburn Hills, Michigan. FCA is a motor vehicle manufacturer and a licensed distributor of new, previously untitled motor vehicles. Like its predecessor, Chrysler, FCA is one of the "Big Three" American automakers, in addition to Ford and General Motors. FCA distributes and sells new and unused passenger cars and motor vehicles under the Chrysler, Dodge, Jeep, Ram, and Fiat brands. Major divisions of FCA also include Mopar, its automotive parts and accessories division, and SRT, its performance automobile division. Fiat, the corporate parent of FCA, is a Dutch corporation headquartered in London. Fiat owns numerous European automotive brands in addition to FCA's American brands, including Maserati, Alfa Romeo, Fiat Automobiles, Fiat Professional, Lancia, and Abarth. As of 2018, Fiat Chrysler is the eighth largest automaker in the world by sales alone.[BN] The Plaintiff is represented by: Lynn Lincoln Sarko, Esq. Gretchen Freeman Cappio, Esq. Ryan McDevitt, Esq. Rachel Morowitz, Esq. KELLER ROHRBACK L.L.P. 1201 Third Avenue, Suite 3200 Seattle, WA 98101 Telephone: (206) 623-1900 Facsimile: (206) 623-3384 E-mail: lsarko@kellerrohrback.com gcappio@kellerrohrback.com rmcdevitt@kellerrorhback.com rmorowitz@kellerrohrback.com - and - Alison Chase, Esq. KELLER ROHRBACK L.L.P. 801 Garden Street, Suite 301 Santa Barbara, CA 93101 Telephone: (805) 456-1496 Facsimile: (205) 456-1497 E-mail: achase@kellerrohrback.com FOCAL POINT: Fuentes Suit Asserts BIPA Violation ------------------------------------------------ Alfredo Fuentes, individually, and on behalf of all others similarly situated, Plaintiff, v. Focal Point Exports, LTD, and Focal Point, LLC, Defendants, Case No. 2019CH03890 (Circuit Ct., Cook Cty., March 26, 2019) is a class action complaint pursuant to the Illinois Code of Civil Procedure seeking to redress and curtail Defendants' unlawful collection, use, storage, and disclosure of Plaintiffs sensitive and proprietary biometric data. Recognizing the need to protect its citizens from situations like these, Illinois enacted the Biometric Information Privacy Act ("BIP A"), specifically to regulate companies that collect, store and use Illinois citizens' biometrics, such as handprints. Notwithstanding the clear and unequivocal requirements of the law, the Defendants disregard their employees' statutorily protected privacy rights and unlawfully collect, store, disseminate, and use employees' biometric data in violation of BIPA. Plaintiff has never been informed of any biometric data retention policy developed by any the Defendant, nor has he ever been informed of whether any Defendant will ever permanently delete his biometric data. Plaintiff has never been provided with, nor ever signed, a written release allowing any the Defendant to collect, store, use, or disseminate his biometric data. Plaintiff has continuously and repeatedly been exposed to the risks and harmful conditions created by each Defendant's violations of BIPA, notes the complaint. Accordingly, Plaintiffs seek an Order: (1) declaring that Defendants' conduct violates BIPA; (2) requiring Defendants to cease the unlawful activities; and (3) awarding liquidated damages to Plaintiff and the proposed Class. Plaintiff Alfredo Fuentes worked for Focal Point as a Quality Inspector from August of 2018 until February of 2019. Defendant Focal Point Exports, LTD, is a corporation organized and existing under the laws of the State of Illinois.[BN] The Plaintiff is represented by: Ryan F. Stephan, Esq. James B. Zouras, Esq. Catherine T. Mitchell, Esq. STEPHAN ZOURAS, LLP 100 N. Riverside Plaza, Suite 2150 Chicago, IL 60606 Phone: 312.233.1550 Fax: 312.233.1560 Email: rstephan@stephanzouras.com jzouras@stephanzouras.com cmitchell@stephanzouras.com FREEDOM BOAT: Donde Sues Over Illegal Telemarketing Practices ------------------------------------------------------------- Aaron Donde, individually and on behalf of all others similarly situated, Plaintiff, v. Freedom Boat Club LLC, a Florida company, Defendant, Case No. 0:19-cv-60785 (S.D. Fla., March 26, 2019) is an action under the Telephone Consumer Protection Act ("TCPA"), a federal statute enacted in response to widespread public outrage about the proliferation of intrusive, nuisance telemarketing practices. Plaintiff never consented to receive FBC's text messages, which were placed to him for telemarketing purposes. Because telemarketing campaigns generally send text messages to hundreds of thousands or even millions of potential customers en masse, the Plaintiff bring this action on behalf of proposed nationwide classes of other persons who received illegal telemarketing text messages from or on behalf of the Defendant. Plaintiff Donde is a Broward County, Florida resident. Freedom Boat Club LLC is a Florida limited liability company with its principal place of business in Venice, FL.[BN] The Plaintiff is represented by: Avi R. Kaufman, Esq. Rachel E. Kaufman, Esq. KAUFMAN P.A. 400 NW 26th Street Miami, FL 33127 Phone: (305) 469-5881 Email: kaufman@kaufmanpa.com rachel@kaufmanpa.com FRY'S ELECTRONICS: Traynor Sues Over Blind-Inaccessible Website --------------------------------------------------------------- YASEEN TRAYNOR, on behalf of himself and all others similarly situated, Plaintiffs, v. FRY'S ELECTRONICS, INC., Defendant, Case No. 1:19-cv-02693-RA (S.D. N.Y., March 26, 2019) is a civil rights action against the Defendant for its failure to design, construct, maintain, and operate its website to be fully accessible to and independently usable by Plaintiff and other blind or visually-impaired people. Because Defendant's website, www.frys.com is not equally accessible to blind and visually-impaired consumers, it violates the the Americans with Disabilities Act ("ADA"), notes the complaint. Plaintiff seeks a permanent injunction to cause a change in the Defendant's corporate policies, practices, and procedures so that the Defendant's website will become and remain accessible to blind and visually-impaired consumers. Plaintiff is a visually-impaired and legally blind person who requires screen-reading software to read website content using his computer. Defendant is an electronics retailer that operates www.frys.com.[BN] The Plaintiff is represented by: Dov Mittelman, Esq. STEIN SAKS, PLLC 285 Passaic Street Hackensack, NJ 07601 Phone: (201) 282-6500 Fax: (201) 282-6501 Email: Mittelmandov@yahoo.com FUBU: Traynor Files Class Action Under ADA ------------------------------------------ A class action lawsuit has been filed against FUBU The Collection, L.L.C. The case is styled as Yaseen Traynor, on behalf of himself and all others similarly situated, Plaintiff v. FUBU The Collection, L.L.C., Defendants, Case No. 1:19-cv-02686 (S.D. N.Y., Mar. 26, 2019). The Plaintiff filed the case under the Americans with Disabilities Act. FUBU is an American hip hop apparel company. It includes casual wear, sports wear, a suit collection, eyewear, belts, and shoes.[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 GENIE ENERGY: IDT Energy Still Defends Mackey & Hernandez Suit -------------------------------------------------------------- Genie Energy Ltd. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on March 19, 2019, for the fiscal year ended December 31, 2018, that IDT Energy continues to defend a class action lawsuit initiated by Scott Mackey and Daniel Hernandez. On October 5, 2018, named plaintiffs Scott Mackey and Daniel Hernandez filed a putative class action complaint against IDT Energy in the United States District Court for the Northern District of Illinois alleging violations of the Telephone Consumer Protection Act, 47 U.S.C. Section 227 et seq. The named plaintiffs filed the suit on behalf of: (1) a putative Cell Phone class consisting of all persons in the U.S. to whom IDT Energy and/or a third party acting on IDT Energy's behalf allegedly made one or more telemarketing calls promoting IDT Energy's goods or services to their cellular telephone number through the use of an automatic telephone dialing system or an artificial or prerecorded voice within the four year period preceding the filing of the complaint and (2) a putative Do-Not-Call class consisting of all persons in the U.S. who allegedly received more than one call from IDT Energy and/or some party acting on IDT Energy's behalf promoting IDT Energy's goods or services in a 12-month period on their cellular phone or residential telephone line and whose number appears on the National Do-Not-Call registry within the four year period preceding the filing of the complaint. On November 30, 2018, IDT Energy filed its Answer and Defenses to the complaint and the parties will now proceed to engage in discovery in accordance with a scheduling order entered by the Court on January 18, 2019. IDT Energy denies the allegations in the complaint, which it believes to be completely, meritless and plans to vigorously defend this action. Genie Energy said, "Based upon the Company's preliminary assessment of this matter, a loss is not considered probable, nor is the amount of loss, if any, estimable as of December 31, 2018." Genie Energy Ltd., through its subsidiaries, operates as a retail energy provider; and an oil and gas exploration company. The company operates through three segments: Genie Retail Energy; Afek Oil and Gas, Ltd.; and Genie Oil and Gas. It resells electricity and natural gas to residential and small business customers primarily in the Eastern and Midwestern United States; and offers energy brokerage and advisory services. Genie Energy Ltd. was incorporated in 2001 and is headquartered in Newark, New Jersey. GLOBAL MANAGEMENT: Underpays Cooks, Niwano Suit Alleges ------------------------------------------------------- JUNJI NIWANO, individually and on behalf of all others similarly situated, Plaintiff v. GLOBAL MANAGEMENT USA, INC.; JS WORLD, LLC; JK PRIME HOUSE, LLC; JAESUNG KIM; JAE KYUNG SON; and DONG C. SON, Defendants, Case No. 1:19-cv-00968-MHC (N.D. Ga., Feb. 27, 2019) is an action against the Defendants for unpaid regular hours, overtime hours, minimum wages, wages for missed meal and rest periods. The Plaintiff Niwano was employed by the Defendants as cook. Global Management USA, Inc. doing business as Kiku Japanese Steak & Sushi, Kiku Japanese House, and/or Sushi Kiku, engaged in the restaurant business. [BN] The Plaintiff is represented by: Brian G. Kim, Esq. BRIAN KIM, PC 1815 Satellite Blvd. #303 Duluth, GA 30097 Telephone: (678) 878-4200 Facsimile: (404) 878-4208 E-mail: brian@briankimpc.com GOLDEN STATE OVERNIGHT: Underpays Drivers, Laguna Suit Alleges -------------------------------------------------------------- RAUL LAGUNA, individually and on behalf of all others similarly situated, Plaintiff v. GOLDEN STATE OVERNIGHT DELIVERY SERVICE, INC.; COPAN EXPRESS, INC.; JUAN F. PERDOMO; and DOES 1-100, inclusive, Defendants, Case No. 19CV343326 (Cal. Super., Santa Clara Cty., Feb. 27, 2019) is an action against the Defendants for failure to pay minimum wages, overtime compensation, authorize and permit meal and rest periods, provide accurate wage statements, and reimburse necessary business expenses. Plaintiff Laguna was employed by the Defendants as driver. Golden State Overnight Delivery Service Inc. provides ground and overnight delivery services in California and Utah, and select metropolitan areas of Nevada, Arizona, and New Mexico. Its services also include pickup, shipping, delivery, and package tracking, as well as customer service. The company serves casual shippers, small to medium sized businesses, and large distributors. It was founded in 1995 and is based in Pleasanton, California. [BN] The Plaintiff is represented by: Marco A. Palau, Esq. Joseph D. Sutton, Esq. Eric S. Trabucco, Esq. 212 9th Street, Suite 314 Oakland, CA 94607 Telephone: (510) 269-4200 Facsimile: (408) 657-4684 E-mail: marco@advocatesforworkers.com jds@advocatesforworkers.com est@advocatesforworkers.com GOULET PEN: Traynor Files ADA Suit in S.D. New York --------------------------------------------------- A class action lawsuit has been filed against The Goulet Pen Company, LLC. The case is styled as Yaseen Traynor, on behalf of himself and all others similarly situated, Plaintiff v. The Goulet Pen Company, LLC, Defendants, Case No. 1:19-cv-02698 (S.D. N.Y., Mar. 26, 2019). The Plaintiff filed the case under the Americans with Disabilities Act. Goulet Pens provides fountain pen enthusiasts the most personal online shopping experience through comprehensive education and exemplary service.[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 GRUBHUB: Faces Class Action Over "Sham Telephone Orders" -------------------------------------------------------- Christian Hetrick, writing for Philly.com, reports that a Philadelphia-area restaurant chain claims that Grubhub, the online food delivery and takeout platform, has "stolen" millions of dollars from small businesses by charging them for "sham telephone orders," according to a proposed class-action lawsuit. The suit, filed in federal court by a pair of Tiffin Indian food restaurants, alleges that Grubhub has charged commissions for phone calls that did not generate food orders. The Tiffin chain, founded by Wharton MBA and ex-investment banker Munish Narula, argues that Grubhub's actions ate into restaurants' revenues for more than seven years. Tiffin claims it's bringing the case on behalf of the roughly 80,000 restaurants that Grubhub works with across the country. The case is seeking unspecified damages and restitution. The lawsuit also wants a judge to bar Grubhub from charging businesses for customer calls that don't result in food orders. Grubhub, which declined comment on March 11, filed a motion to send the case to arbitration. In court filings, the Chicago-based company has said it did not act deceptively nor breach its contracts with the two Tiffin eateries named as plaintiffs. The two restaurants, located in Elkins Park and Mount Airy, are part of a chain of 10 Tiffin eateries in the region. Tiffin's lawyer, Catherine Pratsinakis, declined comment. Narula did not return a request for comment. Founded in 2004, Grubhub allows customers to find local restaurants and place food orders through its online platform. Restaurants pay a commission, typically a percentage of the order (Tiffin pays 15 percent per order, court documents show). Grubhub, which recently expanded its Philadelphia presence with a Center City tech hub, competes with other food delivery services such as UberEats, and DoorDash. Grubhub generated $1 billion in revenue in 2018, an increase of more than 46 percent from the $683.1 million collected in 2017. The company says it serves 17.7 million active diners. According to the lawsuit, reported by Philadelphia Magazine in January, Grubhub also charges businesses when customers place orders using unique phone numbers found on its online platform. Grubhub tracks the calls and bills the restaurants accordingly, imposing a fee based on a monthly average of previous commissions charged to the restaurant, according to the complaint filed in December in the U.S. District Court for the Eastern District of Pennsylvania. But Grubhub does not verify whether the calls actually result in food orders and relies solely on the length of the phone call to justify charging commissions, the suit says. Tiffin cited examples of customers calling to ask about ingredients, existing orders, and hours of operation -- calls that the eatery said resulted in charges from Grubhub. In one case last year, a woman called a Tiffin restaurant through the phone number listed on Grubhub's platform, asking questions about the menu because she had food allergies, the complaint says. She proceeded to place an order through Grubhub's website, and Grubhub charged Tiffin twice for both the call and online order. According to the complaint, a Grubhub worker told Narula, the Tiffin founder and president, that the platform charges commissions for calls that exceed 45 seconds, regardless of whether a customer places a food order. In a 2013 post on Quora, Grubhub founder Mike Evans wrote that there are a "few key indicators" that show whether a call is an order. "Among them are time of call (during business hours), duration of call, exclusion of multiple call from same number, etc.," Evans wrote at the time. "It turns out to be possible to predict with a high degree of accuracy which calls are orders or not." Making matters worse for small businesses, Tiffin argues, is that customers often place calls through Grubhub because an internet search for restaurants using Google could list Grubhub's ad before the restaurant's website. Tiffin said Grubhub orders make up nearly 15 percent of the Indian chain's revenues. Grubhub's lawyer asked a judge to send the case to arbitration, noting its contracts with the Tiffin eateries contain an arbitration clause with a class-action waiver. Tiffin's lawyers have not yet responded to the motion. [GN] HAMILTON BANCORP: Faces Parshall Class Action --------------------------------------------- Hamilton Bancorp, Inc. said in its Form 8-K filing with the U.S. Securities and Exchange Commission filed on March 12, 2019, that the company is facing a putative class action lawsuit entitled, Parshall v. Carol Coughlin, et al. On October 23, 2018, Hamilton Bancorp, Inc. (the "Company") and Orrstown Financial Services, Inc. ("Orrstown") entered into an agreement and plan of merger (the "Merger Agreement") under which the Company will merge with and into Orrstown, with Orrstown as the surviving company (the "Merger"). On March 5, 2019, Paul Parshall, a purported individual stockholder of the Company, filed, on behalf of himself and all of the Company’s stockholders other than the named defendants and their affiliates (the "Purported Class"), a derivative and putative class action complaint in the Circuit Court for Baltimore City, Maryland, captioned Paul Parshall v. Carol Coughlin et. al., naming each Company director, Orrstown and the Company as defendants (the "Parshall Action". The Parshall Action alleges, among other things, that the Company's directors breached their fiduciary duties to the Purported Class in connection with the Merger, and that the Proxy Statement/Prospectus omitted certain material information regarding the Merger. The relief sought by the Parshall Action includes preliminary and permanent injunction from proceeding with, consummating, or closing the proposed Merger, damages, including attorneys' and experts' fees, and rescission and rescissory damages if the proposed Merger is completed. While the Company believes that the Actions lack any merit and that the disclosures in the Proxy Statement/Prospectus comply fully with applicable law, in order to avoid the expense, nuisance and distraction of litigation the Company and Orrstown have determined to voluntarily supplement the Proxy Statement/Prospectus with a supplemental disclosures . Nothing in the Supplemental Disclosures shall be deemed an admission of the legal necessity or materiality under applicable law of the Supplemental Disclosures. To the contrary, the Company and Orrstown specifically deny all allegations that any of the Supplemental Disclosures, or any other additional disclosures, were or are required. A copy of the supplemental disclosure is available at https://goo.gl/wHx6WU. Hamilton Bancorp, Inc. provides commercial banking services. The company was incorporated in 2016 and is based in Ephrata, Pennsylvania. HD SUPPLY: Discovery Ongoing in Shareholders Class Suit in Georgia ------------------------------------------------------------------ HD Supply, Inc.said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on March 19, 2019, for the fiscal year ended February 3, 2019, that discovery is ongoing in the consolidated class action lawsuit before the Northern District of Georgia. On July 10, 2017 and August 8, 2017, shareholders filed putative class action complaints in the U.S. District Court for the Northern District of Georgia, alleging that HD Supply and certain senior members of its management (collectively, the "securities litigation defendants") made certain false or misleading public statements in violation of the federal securities laws between November 9, 2016 and June 5, 2017, inclusive (the "original securities complaints"). Subsequently, the two securities cases were consolidated, and, on November 16, 2017, the lead plaintiffs appointed by the Court filed a Consolidated Amended Class Action Complaint (the "Amended Complaint") against the securities litigation defendants on behalf of all persons other than the securities litigation defendants who purchased or otherwise acquired the Company's common stock between November 9, 2016 and June 5, 2017, inclusive. The Amended Complaint alleges that the securities litigation defendants made certain false or misleading public statements, primarily relating to the Company's progress in addressing certain supply chain disruption issues encountered in the Company's Facilities Maintenance business unit. The Amended Complaint asserts claims against the securities litigation defendants under Sections 10(b) and 20(a) of the Exchange Act and SEC Rule 10b-5, and seeks class certification under the Federal Rules of Civil Procedure, as well as unspecified monetary damages, pre-judgment and post-judgment interest, and attorneys' fees and other costs. On September 19, 2018, the Court granted in part and denied in part the securities litigation defendants' motion to dismiss. The matter is now in discovery. No further updates were provided in the Company's SEC report. HD Supply, Inc. operates as an industrial distribution company in North America. The company operates in two segments, Facilities Maintenance and Construction & Industrial. The company was formerly known as The Home Depot Supply, Inc. and changed its name to HD Supply, Inc. in December 2006. HD Supply, Inc. is headquartered in Atlanta, Georgia. HD Supply, Inc. is a subsidiary of HD Supply Holdings, Inc. HILLS PET NUTRITION: Faces Brown Suit in District of Kansas ----------------------------------------------------------- A class action has been filed against Hills Pet Nutrition, Inc. The case is captioned as JOSEPH W. BROWN, individually and on behalf of all others similarly situated, HILLS PET NUTRITION, INC., Defendant, Case No. 2:19-cv-02110-CM-TJJ (D. Kan., Feb. 27, 2019). The case is assigned to District Judge Carlos Murguia and referred to Magistrate Judge Teresa J. James. Hill's Pet Nutrition, Inc. produces and markets pet food. The company was formerly known as Hill Packing Company and founded in 1939 and is headquartered in Topeka, Kansas. It operates as a subsidiary of Colgate-Palmolive Co. [BN] The Plaintiff is represented by: Isaac L. Diel, Esq. SHARP MCQUEEN PA 6900 College Blvd., Suite 285 Overland Park, KS 66211 Telephone: (913) 661-9931 Facsimile: (913) 661-9935 E-mail: idiel@sharpmcqueen.com HLO COLLECTION: Schmidt Alleges Violation under FDCPA ----------------------------------------------------- A class action lawsuit has been filed against HLO Collection Services, LLC. The case is styled as David Schmidt, individually and on behalf of all others similarly situated, Plaintiff v. HLO Collection Services, LLC and John Does 1-25, Defendants, Case No. 4:19-cv-00542 (E.D. Mo., March 20, 2019). The docket of the case states the nature of suit as Consumer Credit filed pursuant to the Fair Debt Collection Practices Act. HLO Collection Services, LLC is engaged in the debt collection business.[BN] The Plaintiff is represented by: Yaakov Saks, Esq. Stein Saks, PLLC 285 Passaic Street Hackensack, NJ 07601 Tel: (201) 282-6500 Email: ysaks@steinsakslegal.com HOAMBRECKER ENTERPRISES: Molloy Seeks Wage & Overtime Pay --------------------------------------------------------- The case, RION L. MOLLOY, on behalf of himself and all other similarly situated persons, the Plaintiffs, vs. HOAMBRECKER ENTERPRISES, LLC, d/b/a The Station, and JANET M. HOAMBRECKER, the Defendants, Case No. 5:19-CV-6030 (W.D. Mo., March 21, 2019), targets Defendants' deliberate failure to pay its employees their earned wages in violation of the Fair Labor Standards Act as well as Missouri state laws. Defendants' policy and practice is to deny minimum wage and overtime pay to its hourly employees. The Plaintiff and all other similarly situated employees, worked for Defendants and was paid an hourly wage. The lawsuit is brought as a collective action under FLSA and as a state law class under Rule to recover unpaid wages and related penalties and damages owed to Plaintiff, and all other similarly situated employees, the lawsuit says. The Station is a combination gas station, liquor store, convenience mart, and pizza establishment that operates in Kansas City and Parkville, Missouri.[BN] Attorneys for the Plaintiff and the Class: Matthew R. Crimmins, Esq. Virginia Stevens Crimmins, Esq. CRIMMINS LAW FIRM, LLC 214 S. Spring Street Independence, MO 64050 Telephone: 816-974-7220 Facsimile: 855-974-7020 E-mail: m.crimmins@crimminslawfirm.com v.crimmins@crimminslawfirm.com - and - Heather J. Hardinger, Esq. THE MEYERS LAW FIRM, LC 503 One Main Plaza 4435 Main Street Kansas City, MO 64111 Telephone: 816-444-8500 Facsimile: 816-444-8508 E-mail: hhardinger@meyerslaw.com HOT TOPIC: Soukhaphonh Seeks to Certify Class & Subclass -------------------------------------------------------- In the class action lawsuit DIANA SOUKHAPHONH, individually and on behalf of all others similarly situated, the Plaintiff, vs. HOT TOPIC, INC., a California corporation, the Defendant, Case No. 2:16-cv-05124-DMG-AGR (C.D. Cal.), the Plaintiff will move the Court for an order on May 17, 2019, granting certification of class and subclass, and appointing class counsel. The class is defined as: "all persons whose cellular telephone numbers were contained in the file transmitted by Hot Topic to the company known as Impact Mobile identified as HT_IM-Opt_in_OneTime.ZIP on September 22, 2015 and who thereafter received one or more of the below described text messages from the shortcode telephone number 86742." The subclass is defined as: "all persons who received the following text message from the shortcode telephone number 86742: "Thanks! Ur subscribed to Hot Topic Alerts: 8msg/mo. Reply STOP to Cancel, HELP for Help. For info visit www.4u2entr.com/hottopic info. Msg&Data rates may apply." The action arises out of Defendant Hot Topic, Inc.'s practice of sending advertising and telemarketing text messages en masse to consumers and presents a textbook case for class certification. Hot Topic, a retail chain specializing in selling clothing through brick and mortar stores and a website, sent millions of impersonal an promotional advertising and telemarketing text messages to over one million cellular telephone numbers between November 1, 2015 and December 26, 2015.[CC] Attorneys for the Plaintiff and the Putative Class: David P. Milian, Esq. CAREY RODRIGUEZ MILIAN GONYA LLP 1395 Brickell Avenue, Suite 700 Miami, FL 33131 Telephone: (305) 372-7474 Facsimile: (305) 372-7475 E-mail: dmilian@careyrodriguez.com ecf@careyrodriguez.com - and - Robert Ahdoot, Esq. Tina Wolfson, Esq. AHDOOT & WOLFSON, P.C. 10728 Lindbrook Drive Los Angeles, CA 90024 Telephone: (310) 474-9111 Facsimile: (310) 474-8585 E-mail: rahdoot@ahdootwolfson.com twolfson@ahdootwolfson.com HOTEL ON RIVINGTON: Lopez Files ADA Class Action in NY ------------------------------------------------------ A class action lawsuit has been filed against The Hotel On Rivington Managing Member Corp. d/b/a The Hotel On Rivington. The case is styled as Victor Lopez, On Behalf of Himself And All Other Persons Similarly Situated, Plaintiff v. The Hotel On Rivington Managing Member Corp. d/b/a The Hotel On Rivington, Defendant, Case No. 1:19-cv-02717 (S.D. N.Y., Mar. 26, 2019). The Plaintiff filed the case under the Americans with Disabilities Act. The Hotel on Rivington is a 20-story luxury hotel on Rivington Street between Ludlow and Essex Street in Downtown Manhattan.[BN] The Plaintiff is represented by: Jeffrey M. Gottlieb, Esq. 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (212) 228-9795 Fax: (212) 982-6284 Email: nyjg@aol.com HUMANA AT HOME: Court Certifies 4 FLSA Classes ---------------------------------------------- In the class action lawsuit DAVERLYNN KINKEAD et al., individually and on behalf of all others similarly situated, the Plaintiffs, vs. HUMANA AT HOME, INC. et al., the Defendants, Case No. 3:15-cv-01637-JAM (D. Conn.), the Hon. Judge Jeffrey Alker Meyer entered an order: 1. granting Plaintiffs' second motion to amend complaint; and 2. granting in part and denying in part Plaintiffs' motion for class certification. The Court certifies the following classes: Connecticut Effective Date class, consisting of: "all home healthcare workers employed by defendants in Connecticut who worked in excess of 40 hours in a week between January 1, 2015, and October 12, 2015"; New York Effective Date class, consisting of: "all home healthcare workers employed by defendants in New York who worked in excess of 40 hours in a week including at least one 24-hour live-in shift between January 1, 2015, and October 12, 2015"; Connecticut Unpaid Hours class, consisting of: "all home healthcare workers employed by defendants in Connecticut who worked 24-hour live-in shifts between January 1, 2015, and January 25, 2016"; and New York Unpaid Hours class, consisting of: "all home healthcare workers employed by defendants in New York who worked 24-hour live-in shifts between November 11, 2009 and the present." The Plaintiffs are home healthcare workers employed by defendant Humana, Inc. and its corporate affiliates. They have filed this collective and class action lawsuit alleging that Humana has unlawfully failed to pay them time-and-a-half overtime wages and unlawfully failed to pay them for the number of hours that they worked. They bring their claims under the federal Fair Labor Standards Act, as well as under the Connecticut Minimum Wage Act and New York Labor Law.[CC] INTEGRATED TECH: Monplaisir et al Seek Unpaid Wages for Technicians ------------------------------------------------------------------- PAUL MONPLAISIR, JACKY CHARLES, and STERLING FRANCOIS, on behalf of themselves and all others similarly situated, the Plaintiffs, vs. INTEGRATED TECH GROUP, LLC and ITG COMMUNICATIONS LLC, the Defendants, Case No. 3:19-cv-01484 (N.D. Cal., March 21, 2019), alleges that Defendants failed to pay for all hours worked, minimum wage and overtime wages in violations of the Fair Labor Standards, the Pennsylvania Minimum Wage Act, and the Pennsylvania Wage Payment and Collection Law. The case is a collective and class action complaint against ITG to challenge its policies and practices of denying proper payment of all wages (including minimum, regular, and overtime wages, expense reimbursement, and improper deductions), compensation for nonproductive work time, as well as ITG's failure to authorize, permit, and/or make available rest periods and meal periods. The Plaintiffs and members of the putative Collective and Classes are current and former non-exempt employees of ITG, who carried out ITG's installation service business. The Plaintiffs seek to represent other current and former non-exempt employees who work as Technicians in this collective and class action. The Plaintiffs allege ITG has engaged in an unlawful pattern and practices in violation of the FLSA and the applicable laws of the states of California and Pennsylvania, the lawsuit says. Integrated Tech Group LLC was founded in 2013. The Company's line of business includes the warehousing and storage of a general line of goods.[BN] Attorneys for the Plaintiffs, the Collective, and putative Classes: Carolyn H. Cottrell, Esq. Ori Edelstein, Esq. Michelle S. Lim, Esq. SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP 2000 Powell Street, Suite 1400 Emeryville, CA 94608 Telephone: (415) 421-7100 Facsimile: (415) 421-7105 E-mail: ccottrell@schneiderwallace.com oedelstein@schneiderwallace.com mlim@schneiderwallace.com - and - Sarah R. Schalman-Bergen, Esq. Stacy Savett, Esq. Shoshana Savett, Esq. BERGER MONTAGUE PC 1818 Market Street, Suite 3600 Philadelphia, PA 19103 Telephone: (215) 875-3000 Facsimile: (215) 875-4604 J & L FIBER SERVICES: Angel Alleges Unlawful Compensation System ---------------------------------------------------------------- A class action complaint has been filed against J & L Fiber Services, Inc. for violations of Fair Labor Standards Act of 1938 and Wisconsin's Wage Payment and Collection Laws. The case is captioned HECTOR ANGEL, on behalf of himself and all others similarly situated, Plaintiff, v. J & L FIBER SERVICES, INC., 831 Progress Avenue Waukesha, Wisconsin 53186, Defendant, Case No. 19-cv-420 (E.D. Wis., March 25, 2019). The Plaintiff seeks for unpaid overtime compensation, unpaid agreed upon wages, liquidated damages, costs, attorney’s fees, declaratory and/or injunctive relief. J & L Fiber Services, Inc., is a privately owned company headquartered in Portland, Oregon -- but with a location in Waukesha, Wisconsin -- that provides production and manufacturing services in the pulp and paper industries. [BN] The Plaintiff is represented by: Scott S. Luzi, Esq. WALCHESKE & LUZI, LLC Brookfield, WI 53005 Telephone: (262) 780-1953 Facsimile: (262) 565-6469 E-mail: jwalcheske@walcheskeluzi.com sluzi@walcheskeluzi.com JKR PROPERTY: Violates ADA, Lopez Suit Asserts ----------------------------------------------- A class action lawsuit has been filed against JRK Property Holdings, Inc. The case is styled as Victor Lopez, On Behalf of Himself And All Other Persons Similarly Situated, Plaintiff v. JRK Property Holdings, Inc., Defendant, Case No. 1:19-cv-02713 (S.D. N.Y., Mar. 26, 2019). The Plaintiff filed the case under the Americans with Disabilities Act. JRK Property Holdings is a Los Angeles-based real estate holding and property management company.[BN] The Plaintiff is represented by: Jeffrey M. Gottlieb, Esq. 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (212) 228-9795 Fax: (212) 982-6284 Email: nyjg@aol.com JOHN TILLEY: Rhodes Files Prisoner Civil Rights Suit in Kentucky ---------------------------------------------------------------- A class action lawsuit has been filed against John Tilley. The case is styled as Casey Rhodes, individually and on behalf of all others similarly situated, Plaintiff v. John Tilley, James Erwin and Randy White, Defendants, Case No. 3:19-cv-00019-GFVT (E.D. Ky., March 20, 2019). The docket of the case states the nature of suit as Civil Rights-other filed pursuant to the Prisoner Civil Rights. The Plaintiff is represented by: Aaron Joseph Bentley, Esq. Belzley, Bathurst & Bentley P.O. Box 278 Prospect, KY 40059 Tel: (502) 690-6054 Email: abentley3b@gmail.com - and - Camille Bathurst, Esq. Belzley, Bathurst & Bentley P.O. Box 278 Prospect, KY 40059 Tel: (502) 292-2452 Email: camillebathurst@aol.com - and - Gregory Allen Belzley, Esq. Belzley, Bathurst & Bentley P.O. Box 278 Prospect, KY 40059 Tel: (502) 292-2452 Email: gbelzley@aol.com JOHN'S COFFEE: Rivera Seeks Minimum Wage and Overtime Pay --------------------------------------------------------- JOSE RIVERA On Behalf of Himself and All Others Similarly Situated, the Plaintiffs, vs. P.R. CREPE LTD. d/b/a JOHN'S COFFEE SHOP, GEORGE TSINIAS and NIKOLAS TSINIAS, the Defendants, Case No. 1:19-cv-02430 (S.D.N.Y., March 19, 2019), seeks to recover damages and equitable relief based upon Defendants' flagrant and willful violations of Plaintiffs' rights guaranteed to him by the minimum wage and overtime provisions of the Fair Labor Standards Act and the New York Labor Law. According to the complaint, the Plaintiff worked for Defendants -- Restaurant and its owners/managers. Throughout his employment, the Defendants required the Plaintiff to work, and Plaintiff did work, more than 40 hours per week. However, Defendants failed to pay Plaintiff at the minimum wage or overtime rate of pay of 1-1/2 times his regular rate of pay for each hour that Plaintiff worked per week in excess of 40, as the FLSA and the NYLL require. Furthermore, Defendants failed to pay Plaintiff for his spread of hours in violation of NYLL. Lastly, Defendants failed to furnish Plaintiff with accurate and/or any wage statements on each payday as the NYLL requires or provide Plaintiff with a wage notice containing the criteria enumerated under the NYLL. Defendants paid and treated of all their non-managerial employees who worked for them in the same manner.[BN] Attorneys for the Plaintiff: Amit Kumar, Esq. LAW OFFICES OF WILLIAM CAFARO 108 West 39th Street, Suite 602 New York, NY 10018 Telephone: (212) 583-7400 E-mail: AKumar@Cafaroesq.com LA BOOM: Court Denies Summary Judgment in R. Duran's Suit --------------------------------------------------------- The United States District Court for the Eastern District of New York issued an Opinion and Order denying Plaintiffs' Motion for Summary Judgment on the issue of defendant's liability in the case captioned RADAMES DURAN, on behalf of himself and all others similarly situated, Plaintiff, v. LA BOOM DISCO, INC., Defendant. No. 17-cv-6331 (ARR) (CLP)(E.D.N.Y.). Radames Duran brings this action against La Boom Disco, Inc. for alleged violations of the Telephone Consumer Protection Act (TCPA). The Plaintiff claims that the defendant, a nightclub in Queens, N.Y., sent him numerous text messages over a two-year period in violation of the TCPA. As the statute makes clear, there are three exceptions to the general prohibition on autodialer calls: (1) a call made for emergency purposes (2) a call made with the prior express consent of the called party and (3) a call made to collect government debts. The TCPA provides for a private right of action allowing a plaintiff to recover $500 for each violation or $1500 if the violation is willful or knowing. Defendant cannot avoid TCPA liability on the ground that plaintiff consented to the text messages. The Federal Communication Commission defines advertisement as any material advertising the commercial availability or quality of any property, goods, or services and telemarketing as the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person. The calling party bears the burden of demonstrating prior express written consent. The Defendant appears to argue that the prior express consent standard governs this case and that defendant received such consent when plaintiff provided his phone number to defendant.Defendants need not have obtained prior express written consent from plaintiff. While defendant is correct that giving one's number to a caller satisfies the prior express consent standard for non-advertising and non-telemarketing calls, the only text in this case that was not an advertising or telemarketing text was defendant's initial text to plaintiff granting him free admission to a particular event. The subsequent texts which advertised events at defendant's nightclub and encouraged plaintiff to purchase ticket clearly fall under the FCC's definition of advertisement or telemarketing. Thus, while plaintiff's act of giving his number to defendant constituted sufficient consent to receive the initial text, this action did not grant defendant permission to send subsequent advertising and telemarketing texts. Here, defendant has not met its burden of demonstrating prior express written consent for the advertising and telemarketing texts. Thus, defendant cannot avoid liability on a consent theory. ExpressText and EZ Texting do not qualify as autodialers as a matter of law, and summary judgment against plaintiff is therefore appropriate. The TCPA defines an ATDS as equipment which has the capacity (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers. The question of what qualifies as an ATDS has generated substantial questions over the years. The FCC and the courts have attempted to clarify the definition of an ATDS through various administrative orders and judicial opinions, but the definition remains unclear. The Court finds it useful to provide an overview of the relevant orders and opinions in order to arrive at my understanding of the law. The Court ultimately conclude that the pre-2015 FCC guidance on autodialer functions remains good law, and that under this guidance, the ExpressText and EZ Texting programs do not qualify as autodialers. Autodialer definition The 2003 FCC Order A predictive dialer is an automated dialing system that uses a complex set of algorithms to automatically dial consumers' telephone numbers in a manner that predicts the time when a consumer will answer the phone and a telemarketer will be available to take the call. The FCC rejected the industry members' argument and held that predictive dialers do fall under the statutory definition of an ATDS. Regarding the use of a database of numbers, the FCC wrote: "In the past, telemarketers may have used dialing equipment to create and dial 10-digit telephone numbers arbitrarily. As one commenter points out, the evolution of the teleservices industry has progressed to the point where using lists of numbers is far more cost effective. To exclude equipment that uses predictive dialing software from the definition of automated telephone dialing equipment simply because it relies on a given set of numbers would lead to an unintended result." The 2015 FCC Order and ACA International In 2015, the FCC again addressed the statutory definition of an autodialer. The FCC mainly focused on the meaning of the word capacity under the statute. Adopting a broad interpretation, the FCC held that the TCPA's reach extends to devices with the potential ability to function as an autodialer. In ACA International, the D.C. Circuit invalidated several aspects of the 2015 Order, including the FCC's definition of capacity. The court found that extending TCPA liability to equipment with the future capacity to meet the definition of an autodialer invites the conclusion that all smartphones are autodialers. Thus, the court held, the FCC's interpretation of the statute is an unreasonably, and impermissibly, expansive one. The D.C. Circuit also struck down the portion of the 2015 Order describing the requisite functions of an autodialer, reasoning that the FCC offered competing explanations that failed to satisfy the requirement of reasoned decisionmaking. The court noted that by reaffirming its 2003 Order, the FCC appeared to confirm its prior determination that equipment can meet the statutory definition of an autodialer even if it has no capacity itself to generate random or sequential numbers (and instead can only dial from an externally supplied set of numbers. The Impact of ACA International Currently, federal courts are in disagreement over whether ACA International's invalidation of the 2015 Order also invalidated the analogous portions of the 2003 and 2008 Orders concerning predictive dialers. While the Second Circuit plainly held that the 2015 Order had been invalidated, the court nowhere explicitly addresses the validity of the prior FCC Orders. The Second Circuit, however, only analyzed the meaning of capacity under the statutory language itself. As discussed earlier, the court declined to weigh in on the requisite functions of an autodialer. Importantly, the invalidation of the 2015 Order does not have the same impact on capacity as it does on autodialer functions. Regarding capacity, the invalidation of the 2015 Order forces courts to analyze capacity under the statute, because the FCC had not offered prior guidance on the term. While courts in this circuit do not appear to have addressed the issue, a growing number of courts in other circuits have. Many courts have upheld the validity of the prior FCC Orders, in large part because ACA International does not clearly address the validity of these Orders. Courts finding that the invalidation of the 2015 Order implicitly invalidates the prior FCC Orders generally engage in a two-part analysis. First, the courts cite to the D.C. Circuit's holding that the 2015 Order is invalid because it offers competing views as to whether an autodialer must be able to generate random or sequential numbers. Second, the courts conclude that the 2003 Order must also offer a competing view, because as the D.C. Circuit noted, both the 2003 and 2015 Orders drew a distinction between numbers that are randomly or sequentially generated and numbers that come from lists. This line of reasoning is incorrect. As discussed earlier, the 2003 Order clearly holds that equipment that calls from a list can meet the statutory definition of an autodialer. While the D.C. Circuit did bring attention to the 2003 Order's distinction between randomly or sequentially generated numbers and a list of numbers, it did so only to reinforce its understanding of the 2015 Order, i.e., that the FCC's use of dialing random or sequential numbers meant generating those numbers and then dialing them. Only the 2015 Order contained a contradiction, however, by stating that equipment must have the capacity to dial random or sequential numbers in order to qualify as an autodialer. Because the logic behind invalidating the 2015 Order does not apply to the prior FCC Orders, the Court concludes that the invalidation of the 2015 Order does not implicitly invalidate the prior FCC Orders. The Court will therefore continue to rely on those Orders to interpret the definition of an autodialer. Express Text and EZ Texting The Court interprets the prior FCC Orders as holding that equipment can meet the definition of an autodialer if it pulls from a list of numbers, so long as the equipment also has the capacity to dial those numbers without human intervention. The Plaintiff concedes that the programs at issue lack the ability to generate randomized or sequential numbers. Because the Courts do not understand the prior FCC Orders as requiring random or sequential number generation, the Courts do not find that the programs' reliance on a database of numbers disqualifies them from TCPA coverage; rather, the Court concludes that they do not qualify as autodialers because they are not capable of dialing numbers without human intervention. In sum, because a user determines the time at which the ExpressText and EZ Texting programs send messages to recipients, they operate with too much human involvement to meet the definition of an autodialer. Summary judgment for plaintiff is therefore improper. Further, since plaintiff's motion turns on whether the programs qualify as autodialers, The Court concludes that all of the evidentiary materials that plaintiff might submit in response to a motion for summary judgment on this issue are before the court. Because the record reveals no material dispute as to how the programs work, and the Court finds that the programs are not autodialers as a matter of law, a sua sponte grant of summary judgment against plaintiff is appropriate. Accordingly, the Plaintiff's motion for summary judgment is denied. A full-text copy of the District Court’s February 25, 2019 Opinion and Order is available at http://tinyurl.com/y3gv6ozffrom Leagle.com. Radames Duran, on behalf of himself and all others similarly situated, Plaintiff, represented by Anne Seelig, Lee Litigation Group, PLLC, Taimur Alamgir, Lee Litigation Group, PLLC, William M. Brown, Lee Litigation Group, PLLC & C.K. Lee, Lee Litigation Group, PLLC. La Boom Disco Inc., Defendant, represented by Christopher R. Lynn. LEX HOTEL: Lopez Suit Asserts Disabilities Act Breach ----------------------------------------------------- A class action lawsuit has been filed against Lex Hotel LLC. The case is styled as Victor Lopez, On Behalf of Himself And All Other Persons Similarly Situated, Plaintiff v. Lex Hotel LLC, Defendant, Case No. 1:19-cv-02721 (S.D. N.Y., Mar. 26, 2019). The Plaintiff filed the case under the Americans with Disabilities Act. Lexington Hotel LLC operates as a hotel. The Company offers accommodations, lobby lounge, valet parking, food, meetings, and other recreational facilities.[BN] The Plaintiff is represented by: Jeffrey M. Gottlieb, Esq. 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (212) 228-9795 Fax: (212) 982-6284 Email: nyjg@aol.com LIVANOVA PLC: Faces 210 Claims at March 18 over 3T Device Defect ---------------------------------------------------------------- LivaNova PLC said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on March 18, 2019, for the fiscal year ended December 31, 2018, that the company is facing 210 filed and unfiled claims worldwide involving its 3T device. The Company is currently involved in litigation involving its 3T device. The litigation includes a class action complaint in the U.S. District Court for the Middle District of Pennsylvania, federal multi-district litigation in the U.S. District Court for the Middle District of Pennsylvania, various U.S. state court cases and cases in jurisdictions outside the U.S. As of March 18, 2019, the company is aware of approximately 210 filed and unfiled claims worldwide, with the majority of the claims in various federal or state courts throughout the United States. The complaints generally seek damages and other relief based on theories of strict liability, negligence, breach of express and implied warranties, failure to warn, design and manufacturing defect, fraudulent and negligent misrepresentation or concealment, unjust enrichment, and violations of various state consumer protection statutes. The class action, filed in February 2016, consists of all Pennsylvania residents who underwent open heart surgery at WellSpan York Hospital and Penn State Milton S. Hershey Medical Center between 2011 and 2015 and who currently are asymptomatic for NTM infection. Members of the class seek declaratory relief that the 3T devices are defective and unsafe for intended uses, medical monitoring, damages, and attorneys' fees. The company has appealed the District Court's class certification. The class action and cases in federal court have been stayed as a result of the federal multi-district litigation. However, cases in state courts in the U.S. and in jurisdictions outside the U.S continue to progress. As a result of information that the company learned in the fourth quarter of 2018, the company recognized a $294.0 million provision, which represents its best estimate of the Company's liability for these matters. While the amount accrued represents the company's best estimate, the actual liability for resolution of these matters remains uncertain and may vary from our estimate. Total coverage under the Company's product liability insurance policies is $32.9 million, once the self-retention limit of $11.0 million is met. LivaNova said, "While the Company has not currently recorded a receivable for recovery under the insurance policies as of December 31, 2018, the Company intends to pursue recovery under the policies in connection with the future settlement of the litigation involving our 3T device." LivaNova PLC, a medical device company, designs, develops, manufactures, and sells therapeutic solutions worldwide. It operates in two segments, Cardiovascular (CV) and Neuromodulation (NM). The company was founded in 1987 and is headquartered in London, the United Kingdom. LONG BEACH, CA: Demurrer to Evidence in W. Marquez's Suit Reversed ------------------------------------------------------------------ The Court of Appeals of California, Second District, Division Seven, issued an Opinion reversing the judgment of the District Court sustaining the Defendant's Demurrer to Evidence in the case captioned WENDY MARQUEZ et al., Plaintiffs and Appellants, v. CITY OF LONG BEACH, Defendant and Respondent. No. B282270. (Cal. App.). Plaintiffs Wendy Marquez and Jasmine Smith appeal from a judgment of dismissal entered after the trial court sustained without leave to amend the demurrer filed by the City of Long Beach (City) to plaintiffs' class action complaint. The Plaintiffs alleged causes of action for violations of the Labor Code and the Industrial Welfare Commission's (IWC) wage orders based on the City's alleged failure to pay workers employed as pages and recreation leader specialists wages at or above the statewide minimum wage. The trial court found the authority to determine employee compensation was reserved to the City as a charter city under article XI, section 5 of the California Constitution, and the state could not impose a minimum wage for the City's employees because the City's compensation of its employees was not a matter of statewide concern. On appeal, plaintiffs contend the Legislature's interest in the provision of a living wage to all workers is a matter of statewide concern, and the minimum wage requirement is appropriately tailored to address that concern. The City's Demurrer In its demurrer, the City argued the plaintiffs' claims were barred under the home rule doctrine because wages set by charter cities are municipal affairs, not subject to state regulation. The City also asserted in its reply that charter cities did not come within the statutory definition of employers subject to the minimum wage requirement. Further, the wages to be paid to the City's pages and recreation leadership specialists were set by a memorandum of understanding (MOU) between the union representing those employees and the City, ratified by the City Council. According to the City, application of the minimum wage to its employees would unlawfully impair the MOU. The Trial Court Erred in Sustaining the City's Demurrer California's minimum wage law Over a century ago, the Legislature responded to the problem of inadequate wages and poor working conditions by establishing the IWC, giving it authority to investigate various industries and promulgate wage orders establishing minimum wages, maximum work hours, and conditions of labor. In 2013 the Legislature again enacted graduated increases in the minimum wage, effective July 1, 2014 ($9.00 per hour) and January 1, 2016 ($10.00 per hour). Most recently, effective January 1, 2017 the Legislature set a series of graduated increases in the minimum wage to take effect each year on January 1, culminating in a $15.00 per hour minimum wage for all covered employees effective January 1, 2023, with limited exceptions. Section 1182.12, subdivision (b)(3), also provides that for purposes of this subdivision setting the minimum wage, employer' includes the state, political subdivisions of the state, and municipalities. The home rule doctrine and state regulation of charter city and county wages and other employment relations. Charter cities are specifically authorized by our state Constitution to govern themselves, free of state legislative intrusion, as to those matters deemed municipal affairs. Article XI, section 5, subdivision (a), of the California Constitution represents an affirmative constitutional grant to charter cities of all powers appropriate for a municipality to possess and includes the important corollary that so far as municipal affairs' are concerned, charter cities are supreme and beyond the reach of legislative enactment. However, a charter city's authority to enact legislation is not unlimited The Legislature may regulate as to matters of statewide concern even if the regulation impinges to a limited extent' citation on powers the Constitution specifically reserves to counties. In areas considered municipal affairs, the general law of the state prevails over local law only where the general law is reasonably related and narrowly tailored to resolution of an issue of statewide concern. The Supreme Court has considered the extent to which the state may regulate charter city employee compensation and other employment issues many times. In Popper, the Supreme Court addressed the constitutionality of two 1897 state statutes specifying the salaries for various ranks of police officers and firefighters employed by municipalities of the first class. (Popper, supra, 123 Cal. at pp. 456-457, 459.) The court invalidated the statutes, concluding the pay of firemen and policemen clearly falls within the term municipal affairs. In City of Pasadena v. Charleville (1932) 215 Cal. 384 (Charleville), the Supreme Court held the City of Pasadena, as a charter city, was not required to comply with the Public Works Wage Rate Act of 1931, which required that any contract for public works pay the prevailing wage for the type of work in the locality in which the work was to be performed. The court concluded the Legislature lacked the authority to bind the city to the statutory scheme because the construction of public works projects was a municipal affair. Most recently, the Supreme Court in City of Vista revisited the issue of the constitutionality of state prevailing wage laws for public works projects. (City of Vista, supra, 54 Cal.4th at p. 552.) There, a federation of labor unions sought to compel the City of Vista to pay the prevailing wage in the local construction industry, as required by state law. Under this analytical framework, the court must consider (1) whether the city ordinance at issue regulates an activity that can be characterized as a municipal affair (2) whether there is an actual conflict between [local and state law (3) whether the state law addresses a matter of statewide concern and (4) whether the law is reasonably related to resolution' of that concern and narrowly tailored' to avoid unnecessary interference in local governance. If the court is persuaded that the subject of the state statute is one of statewide concern and that the statute is reasonably related to its resolution and not unduly broad in its sweep, then the conflicting charter city measure ceases to be a municipal affair pro tanto and the Legislature is not prohibited by article XI, section 5(a), from addressing the statewide dimension by its own tailored enactments. The state minimum wage law is designed to address a statewide concern for the health and welfare of workers and is reasonably related to its purpose. To determine whether the state's minimum wage law may be applied to the City, as a charter city, we apply the four-part analysis set forth by the Supreme Court in City of Vista. Compensation of charter city employees is a municipal affair under section 5 of article XI of the California Constitution There is no question that salaries of local employees of a charter city constitute municipal affairs. Article XI, section 5, subdivision (b)(4), of the state Constitution, confers to charter cities plenary authority subject only to the restrictions of this article, to provide for the compensation of their deputies, clerks and other employees. The minimum wage requirement is in conflict with the City's resolution and MOU setting wages. The Court must first determine the existence of an actual conflict between the state and local laws at issue before proceeding to the difficult state constitutional question of which law governs a particular matter. The Plaintiffs and the City contend there is no conflict, but for different reasons. They are both incorrect. The wage orders' minimum wage provisions apply to the City, the Court rules. The City contends sections 1182.12 and 1194 do not by their terms apply to charter cities, thus obviating any conflict. The Court disagrees. Although the City is correct that during the relevant period in 2016 former sections 1182.12 and 1194 were silent as to whether they applied to state and local governments, the relevant IWC wage orders were not. In actions under section 1194 to recover unpaid minimum wages, the IWC's wage orders do generally define the employment relationship, and thus who may be liable. Accordingly, an employee who sues to recover unpaid minimum wages actually and necessarily sues to enforce the wage order. Here, the express terms of IWC Wage Order Nos. 4-2001, section 1(B), and 10-2001, section 1(C), make their minimum wage provisions applicable to any city. Section 4 of both applicable wage orders requires every employer to pay a specified minimum wage to its employees. And neither wage order contains an exception from the minimum wage requirements for public entity employers such as the City. The minimum wage requirement cannot be reconciled with the City's charter and the enactments of its council. The Plaintiffs contend there is no conflict between the state minimum wage law and the City Charter because the City is free to determine the wages of its employees, so long as those wages are at or above the state minimum. However, the City's charter provides that wages for the City's employees are to be set by the City Council. Thus, the City's enactment setting subminimum wages conflicts with the state's minimum wage requirements. Because there is an actual conflict between the state minimum wage law and the City Charter, the Court considers whether the minimum wage is a matter of statewide concern. The minimum wage for California workers is a matter of statewide concern. When, as here, state law and the ordinances of a charter city actually conflict and the Court must decide which controls, the hinge of the decision is the identification of a convincing basis for legislative action originating in extramunicipal concerns, one justifying legislative supersession based on sensible, pragmatic considerations. The Legislature's interest in the provision of a living wage also directly implicates the state's own coffers because employees receiving wages below the statewide minimum are more likely to receive state-funded public assistance. The legislative history accompanying the 2013 statute setting the $10.00 per hour minimum wage notes projected savings on state public assistance spending. As the Supreme Court observed in Johnson v. Bradley (1992) 4 Cal.4th 389, 407, We do not doubt that conservation of the state's limited funds is a statewide concern. The court concluded, however, that a state law ban on public funding of political campaigns was not justified by a statewide interest because the ban would impact the local funding of campaigns, not state funding. While the views of the Legislature are not binding on this court, they are relevant and entitled to great weight. In this case, the concerns that led the Legislature to adopt and increase the statewide minimum wage justify application of the minimum wage to all employees, including those of charter cities. Beginning in 1913, the Legislature has consistently acted, whether directly or through the IWC, to ensure those employed in California are paid a wage sufficient to provide for their health and well-being. The Court's conclusion is bolstered by the scope of the state's minimum wage mandate. A state law of broad general application is more likely to address a statewide concern than one that is narrow and particularized in its application. Here, the state's minimum wage requirement is of broad general application, applying to every industry regulated by the IWC wage orders, and to the private and public sectors alike. This is in contrast to the state compensation laws the Supreme Court has invalidated under the home rule doctrine. Considered in light of the Legislature's goal of ensuring workers earn a sufficient wage to provide the necessities of life and raise them above the poverty level, the Court concludes the minimum wage law addresses a statewide concern that justifies' the state's interference in what would otherwise be a merely local affair. The minimum wage is appropriately tailored to address the statewide concern in the health and welfare of workers. Under the fourth and final inquiry, the Court determines whether the law is reasonably related to resolution' of the statewide concern and narrowly tailored to avoid unnecessary interference in local governance. Here, the statewide concern in worker health and welfare is reasonably related to the imposition of a minimum wage. As discussed above, the minimum wage law does not deprive the City completely of its authority to determine wages. Rather, the law sets a floor based on the Legislature's judgment as to the minimum income necessary for a living wage within this state. The City retains authority to provide wages for its employees above that minimum as it sees fit. The minimum wage requirement therefore intrudes less on local authority than the prevailing wage laws, mandatory binding arbitration requirements, and prohibitions on cost-of-living pay increases held invalid by the Supreme Court. Application of the minimum wage requirement does not unconstitutionally impair the MOU between plaintiffs and the City. The City contends in the alternative that enforcement of the state minimum wage against it would unconstitutionally impair the negotiated MOU between the City and plaintiffs. This argument lacks merit. Both the United States and California Constitutions prohibit laws impairing the obligation of contracts under certain circumstances. The City's claim fails because it has identified no valid contract existing at the time of the legislative action at issue. When the relevant MOU was enacted by resolution of the City Council in September 2015, the statute setting the minimum wage at $10.00 per hour effective January 1, 2016 had already been enacted by the Legislature two years earlier. In short, the legislation could not impair the contract because at the time of the legislation's enactment the contract had not yet been entered into by the parties. Thus, any agreement by plaintiffs to work for less than the minimum wage does not relieve the City of its duty to pay plaintiffs at or above the minimum wage. Accordingly, the judgment is reversed. A full-text copy of the Cal. App.'s February 25, 2019 Opinion is available at http://tinyurl.com/y2nm4tlcfrom Leagle.com. Weinberg, Roger & Rosenfeld, David A. Rosenfeld -- drosenfeld@unioncounsel.net -- Lisl R. Soto -- lsoto@unioncounsel.net -- and Alejandro Delgado -- adelgado@unioncounsel.net -- for Plaintiffs and Appellants. Rutan & Tucker and George W. Shaeffer, Jr. -- bshaeffer@rutan.com -- for Defendant and Respondent. LYFT INC: Oliver Sues over Unauthorized Text Messages ----------------------------------------------------- ANTHONY A. OLIVER, individually and on behalf of a class similarly situated individuals, the Plaintiff, vs. Lyft, Inc., a Delaware Corporation, the Defendants, Case No. 3:19-cv-01488 (N.D. Cal., March 21, 2019), seeks to stop the Defendant's practice of making unauthorized text message calls to consumers' cellular telephones in violation of the Telephone Consumer Protection Act, despite the Plaintiff entering "stop" in response text messages to the Defendant. According to the complaint, in a misguided effort to promote its ride-sharing service to former drivers, Lyft, an operator of a nationwide ride-sharing network, engaged in an invasive and unlawful form of outreach through the transmission of unauthorized text message calls to the cellular telephones of consumers throughout the nation. By effectuating unauthorized text message calls, the Defendant has violated the called parties' statutory rights and has caused consumers actual harm, not only because consumers were subjected to the aggravation and invasion of privacy that necessarily accompanies unauthorized automated text messages, but also because consumers, like the Plaintiff, must frequently pay their cell phone service providers or incur a usage allocation deduction from their calling plans for the receipt of such messages, notwithstanding that the text messages were made in violation of specific legislation on the subject, the lawsuit says. Lyft, Inc. is a transportation network company based in San Francisco, California and operating in the United States and Canada. It develops, markets, and operates the Lyft mobile app. Launched in June 2012, Lyft operates in approximately 300 U.S. cities, and provides over 1 million rides per day.[BN] Attorneys for the Plaintiff and the Putative Class Members: Edwin I. Aimufua, Esq. LAW OFFICES OF EDWIN I. AIMUFUA 11150 Sepulveda Blvd, Suite A Mission Hills, CA 91345-1126 Telephone: (747) 246 4141 Facsimile: (818) 855 1118 E-mail: eia@aimufualaw.com MAMMOTH ENERGY: Still Faces Putative Class Action in Puerto Rico ---------------------------------------------------------------- Mammoth Energy Services, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on March 18, 2019, for the fiscal year ended December 31, 2018, that the company continues to defend a class action lawsuit in the Commonwealth of Puerto Rico, Superior Court of San Juan, Puerto Rico. On June 27, 2018, the Company's registered agent notified the Company that it had been served with a putative class action lawsuit titled Wendco of Puerto Rico Inc.; Multisystem Restaurant Inc.; Restaurant Operators Inc.; Apple Caribe, Inc.; on their own behalf and in representation of all businesses that conduct business in the Commonwealth of Puerto Rico vs. Mammoth Energy Services Inc.; Cobra Acquisitions, LLC; D. Grimm Puerto Rico, LLC; Aseguradoras A, B & C; John Doe; Richard Doe, in the Commonwealth of Puerto Rico Superior Court of San Juan. The plaintiffs allege negligent acts by the defendants caused an electrical failure in Puerto Rico resulting in damages of at least $300 million. The Company believes this claim is without merit and will vigorously defend the action. Mammoth Energy said, "However, the Company continues to evaluate the facts and circumstances and at this time is not able to predict the outcome of this lawsuit or whether it will have a material impact on the Company's financial position, results of operations or cash flows." No further updates were provided in the Company's SEC report. Mammoth Energy Services, Inc. operates as an oilfield service company. The company operates in three segments: Infrastructure Services, Pressure Pumping Services, and Natural Sand Proppant Services. The company was founded in 2014 and is headquartered in Oklahoma City, Oklahoma. MARRIOTT INTERNATIONAL: Boyd Sues Over Data Breach -------------------------------------------------- William Boyd, Individually and On Behalf of All Others Similarly Situated, Plaintiff, v. Marriott International, Inc. and Starwood Hotels & Resorts Worldwide LLC, Defendants, Case No. 4:19-cv-00205-JM (E.D. Ark., March 26, 2019) is a proposed class action on behalf of all persons who have suffered, and continue to suffer, financial losses and increased data security risks arising as a direct result of the Defendants' failure to safeguard their personal information. This action arises from a four-year long data breach experienced by the Defendants wherein the data of over 500 million customers of Marriott's Starwood division was compromised. The Defendants' laxity and security deficiencies were so significant that hackers were not only able to breach Defendants' systems, but they were able to go undetected for a four-year time period. As one privacy expert stated, "They can say all they want that they take security seriously, but they don't if you can be hacked over a four-year period without noticing." The Defendants' security failures put Plaintiff's and Class and Subclass members' personal information at serious, immediate, and ongoing risk, resulting in costs and expenses to Plaintiff and members of the Class and Subclass in time spent and the loss of productivity in taking time to address and attempt to ameliorate, mitigate and deal with the actual and future consequences of the theft of their personal information, says the complaint. Plaintiff is a citizen of Pulaski County, Arkansas. Plaintiff provided Defendants with his PII. Marriott International, Inc. is a publicly-traded corporation with its principal place of business at 10400 Fernwood Road, Bethesda, Maryland 20817.[BN] The Plaintiff is represented by: Joseph Henry, Esq. Tiffany Wyatt Oldham, Esq. David Slade, Esq. CARNEY BATES & PULLIAM, PLLC 519 W. 7th St. Little Rock, AR 72201 Phone: (501) 312-8500 Fax: (501) 312-8505 MARRIOTT INTERNATIONAL: Murphy Suit Moved to District of Maryland ----------------------------------------------------------------- The class action lawsuit titled BRYAN E. MURPHY, individually and on behalf of all others similarly situated, Plaintiff v. MARRIOTT INTERNATIONAL, INC., Defendant, Case No. 1:19-cv-00609, was removed from the U.S. District Court for the Northern District of Illinois, to the U.S. District Court for the District of Maryland on February 27, 2019. The District Court Clerk assigned Case No. 8:19-cv-00524-PWG to the proceeding. The Case is assigned to the Hon. Judge Paul W. Grimm. The Murphy suit is a member case in the multi-district litigation proceeding, MDL No. 2879. Marriott International, Inc. operates, franchises, and licenses hotel, residential, and timeshare properties worldwide. Marriott International, Inc. was founded in 1927 and is headquartered in Bethesda, Maryland. [BN] The Plaintiff is represented by: Brian Murray, Esq. Lee Albert, Esq. GLANCY PRONGAY & MURRAY 230 Park Avenue, Suite 530 New York, NY 10169 Telephone: (212) 682-5340 Facsimile: (212) 884-0988 E-mail: bmurray@glancylaw.com lalbert@glancy.com - and - Kasif Khowaja, Esq. Frank Castiglione, Esq. THE KHOWAJA LAW FIRM, LLC 8 South Michigan Avenue, Suite 2600 Chicago, IL 60603 Telephone: (312) 356-3200 Facsimile: (312) 386-5800 E-mail: kasif@khowajalaw.com fcastiglione@khowajalaw.com The Defendants are represented by: Daniel R. Warren, Esq. Lisa M Ghannoum, 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 lghannoum@bakerlaw.com - and - Gilbert S. Keteltas, 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 MARRIOTT INTERNATIONAL: Raab Suit Moved to District of Maryland --------------------------------------------------------------- The class action lawsuit titled SUSAN GOLDFINE RAAB, individually and on behalf of all others similarly situated, Plaintiff v. MARRIOTT INTERNATIONAL INC; STARWOOD HOTELS & RESORTS WORLDWIDE INC, Defendants, Case No. 1:18-cv-08007, was removed from the U.S. District Court for the Northern District of Illinois, to the U.S. District Court for the District of Maryland on February 27, 2019. The District Court Clerk assigned Case No. 8:19-cv-00522-PWG to the proceeding. The Case is assigned to the Hon. Judge Paul W. Grimm. The Raab suit is a member case in the multi-district litigation proceeding, MDL No. 2879. Marriott International, Inc. operates, franchises, and licenses hotel, residential, and timeshare properties worldwide. Marriott International, Inc. was founded in 1927 and is headquartered in Bethesda, Maryland. [BN] The Defendants are represented by: Daniel R Warren, Esq. Lisa M Ghannoum, 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 lghannoum@bakerlaw.com - and - Gilbert S Keteltas, 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 MBI ENERGY: Overtime Compensation for Wireline Engineers Sought --------------------------------------------------------------- TIMOTHY WARREN, individually and on behalf of all others similarly situated, the Plaintiff, vs. MBI ENERGY SERVICES, INC.; MISSOURI BASIN WELL SERVICE, INC. d/b/a MBI ENERGY; and HIGH PLAINS INC., the Defendants, Case No. 1:19-cv-00800 (D. Colo., March 18, 2019), seeks to recover overtime compensation for the Plaintiff and his similarly situated co-workers -- salaried wireline engineers and all other similar workers -- who work or have worked for MBI Energy Services, Inc., Missouri Basin Well Service, Inc., and High Plains Inc. in the United States under the Fair Labor Standards Act, and Colorado Wage Laws, and orth Dakota Wage Law. MBI has made several significant and strategic acquisitions to position itself as a broad-based oilfield services company, including, among other services, wireline units. In this regard, MBI acquired High Plains, Inc. in 2011, and officially merged High Plains, Inc. with MBI Energy in June 2016, to increase its well completion and wireline services. Accordng to the complaint, in order to offer its completion services, MBI Energy employs several hundreds of oilfield workers throughout the United States, including oilfield workers to support its cased-hole wireline division for completions and well intervention services it offers its clients. The Plaintiff and similarly situated Wireline Engineers work on the oil well sites and typically work at least 12-hour shifts, 7 days a week, for weeks at a time, all while in some of the harshest working conditions. In order to avoid paying Wireline Engineers overtime for hours worked in excess of 40 per workweek, the Defendants uniformly misclassified them as exempt from the overtime provisions of the Fair Labor Standards Act and corresponding state wage and hour laws. Despite this classification, the Plaintiff and similarly situated Wireline Engineers have non-exempt primary duties. In this regard, Wireline Engineers have non-exempt primary duties that involve operating a wireline truck's winch, lowering tools down wells, setting wireline plugs, setting lines in the well site, rigging up and rigging down well sites, and completing route client/company checklists. Moreover, Wireline Engineers cannot hire or fire employees, nor are they involved in the interview process. As such, Wireline Engineers are non-exempt employees under the FLSA and corresponding state wage and hour laws. Established in North Dakota in 1979, MBI Energy has grown to a $600 million company and is a leader in completion and well intervention and water management and logistics. MBI has established its presence in the Williston Basin in North Dakota and the Rocky Mountain region, and has further expanded to offer services in the Eagle Ford play in Texas, the Marcellus play in Pennsylvania, and the Niobrara play in Wyoming. Moreover, as explained by MBI Energy CEO Jim Arthaud in Energy & Mining International Magazine, MBI Energy's workforce has grown from 200 to "more than 1,600 employees" in recent years. In May 2018, global investment firm Cerberus Capital Management acquired MBI Energy to continue its expansion in to the oilfield services market.[BN] Attorneys for the Plaintiff and Putative Collective and Classes: Richard (Rex) Burch, Esq. BRUCKNER BURCH PLLC 8 Greenway Plaza No. 1500 Houston, TX 77046 Telephone: (713) 877-8788 - and - Joseph A. Fitapelli, Esq. Armando A. Ortiz, Esq. FITAPELLI & SCHAFFER, LLP 28 Liberty Street, 30th Floor New York, NY 10005 Telephone: (212) 300-0375 METROPOLITAN LIFE: 9th Circuit Appeal in Martin Suit Still Pending ------------------------------------------------------------------ Metropolitan Life Insurance Company said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on March 19, 2019, for the fiscal year ended December 31, 2018, that the appeal to the U.S. Court of Appeals for the Ninth Circuit in the case, Martin v. Metropolitan Life Insurance Company, is still pending. Plaintiffs filed this putative class action lawsuit on behalf of themselves and all California persons who have been charged compound interest by Metropolitan Life Insurance Company in life insurance policy and/or premium loan balances within the last four years. Plaintiffs allege that Metropolitan Life Insurance Company has engaged in a pattern and practice of charging compound interest on life insurance policy and premium loans without the borrower authorizing such compounding, and that this constitutes an unlawful business practice under California law. Plaintiffs assert causes of action for declaratory relief, violation of California's Unfair Competition Law and Usury Law, and unjust enrichment. Plaintiffs seek declaratory and injunctive relief, restitution of interest, and damages in an unspecified amount. On April 12, 2016, the court granted Metropolitan Life Insurance Company's motion to dismiss. Plaintiffs appealed this ruling to the United States Court of Appeals for the Ninth Circuit. The Company intends to defend this action vigorously. No further updates were provided in the Company's SEC report. Metropolitan Life Insurance Company, together with its subsidiaries, provides insurance, annuities, employee benefits, and asset management services in the United States. The company was incorporated in 1868 and is based in New York, New York. Metropolitan Life Insurance Company is a subsidiary of MetLife, Inc. METROPOLITAN LIFE: Continues to Defend Miller Class Action ---------------------------------------------------------- Metropolitan Life Insurance Company said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on March 19, 2019, for the fiscal year ended December 31, 2018, that the company continues to defend a class action suit entitled, Miller, et al. v. Metropolitan Life Insurance Company (S.D.N.Y., filed January 4, 2019). Plaintiff filed a second amended complaint in this putative class action, purporting to assert claims on behalf of all persons who replaced their MetLife Optional Term Life or Group Universal Life policy with a Group Variable Universal Life policy wherein Metropolitan Life Insurance Company allegedly charged smoker rates for certain non-smokers. Plaintiff seeks unspecified compensatory and punitive damages, as well as other relief. The Company intends to defend this action vigorously. Metropolitan Life Insurance Company, together with its subsidiaries, provides insurance, annuities, employee benefits, and asset management services in the United States. The company was incorporated in 1868 and is based in New York, New York. Metropolitan Life Insurance Company is a subsidiary of MetLife, Inc. METROPOLITAN LIFE: Court Approves Settlement in Voshall Class Suit ------------------------------------------------------------------ Metropolitan Life Insurance Company said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on March 19, 2019, for the fiscal year ended December 31, 2018, that the court has approved the parties' settlement in Voshall v. Metropolitan Life Insurance Company . Plaintiff filed this putative class action lawsuit on behalf of himself and all persons covered under a long-term group disability income insurance policy issued by Metropolitan Life Insurance Company to public entities in California between April 8, 2011 and April 8, 2015. Plaintiff alleges that Metropolitan Life Insurance Company improperly reduced benefits by including cost of living adjustments and employee paid contributions in the employer retirement benefits and other income that reduces the benefit payable under such policies. Plaintiff asserts causes of action for declaratory relief, violation of the California Business & Professions Code, breach of contract and breach of the implied covenant of good faith and fair dealing. The parties reached a settlement, which the court approved on January 3, 2019. Metropolitan Life Insurance Company, together with its subsidiaries, provides insurance, annuities, employee benefits, and asset management services in the United States. The company was incorporated in 1868 and is based in New York, New York. Metropolitan Life Insurance Company is a subsidiary of MetLife, Inc. METROPOLITAN LIFE: Non-Certification of Sales Practice Suit Upheld ------------------------------------------------------------------ Metropolitan Life Insurance Company said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on March 19, 2019, for the fiscal year ended December 31, 2018, that the Court of Appeal for Ontario has affirmed the lower court's decision to not certify the sales practices claims in the Ontario regarding Sun Life Assurance Company's of Canada Indemnity Claim. In 2006, Sun Life Assurance Company of Canada ("Sun Life"), as successor to the purchaser of Metropolitan Life Insurance Company's Canadian operations, filed a lawsuit in Toronto, seeking a declaration that Metropolitan Life Insurance Company remains liable for "market conduct claims" related to certain individual life insurance policies sold by Metropolitan Life Insurance Company that were subsequently transferred to Sun Life. In January 2010, the court found that Sun Life had given timely notice of its claim for indemnification but, because it found that Sun Life had not yet incurred an indemnifiable loss, granted Metropolitan Life Insurance Company's motion for summary judgment. In September 2010, Sun Life notified Metropolitan Life Insurance Company that a purported class action lawsuit was filed against Sun Life in Toronto alleging sales practices claims regarding the policies sold by Metropolitan Life Insurance Company and transferred to Sun Life (the "Ontario Litigation"). On August 30, 2011, Sun Life notified Metropolitan Life Insurance Company that another purported class action lawsuit was filed against Sun Life in Vancouver, BC alleging sales practices claims regarding certain of the same policies sold by Metropolitan Life Insurance Company and transferred to Sun Life. Sun Life contends that Metropolitan Life Insurance Company is obligated to indemnify Sun Life for some or all of the claims in these lawsuits. In September 2018, the Court of Appeal for Ontario affirmed the lower court's decision to not certify the sales practices claims in the Ontario Litigation. These sales practices cases against Sun Life are ongoing, and the Company is unable to estimate the reasonably possible loss or range of loss arising from this litigation. Metropolitan Life Insurance Company, together with its subsidiaries, provides insurance, annuities, employee benefits, and asset management services in the United States. The company was incorporated in 1868 and is based in New York, New York. Metropolitan Life Insurance Company is a subsidiary of MetLife, Inc. METROPOLITAN LIFE: Owens Class Action Ongoing --------------------------------------------- Metropolitan Life Insurance Company said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on March 19, 2019, for the fiscal year ended December 31, 2018, that the company continues to defend a class action lawsuit entitled, Owens v. Metropolitan Life Insurance Company (N.D. Ga., filed April 17, 2014). Plaintiff filed this class action lawsuit on behalf of persons for whom Metropolitan Life Insurance Company established a Total Control Account ("TCA") to pay death benefits under an ERISA plan. The action alleges that Metropolitan Life Insurance Company's use of the TCA as the settlement option for life insurance benefits under some group life insurance policies violates Metropolitan Life Insurance Company's fiduciary duties under the Employee Retirement Income Security Act of 1974. As damages, plaintiff seeks disgorgement of profits that Metropolitan Life Insurance Company realized on accounts owned by members of the class. In addition, plaintiff, on behalf of a subgroup of the class, seeks interest under Georgia's delayed settlement interest statute, alleging that the use of the TCA as the settlement option did not constitute payment. On September 27, 2016, the court denied Metropolitan Life Insurance Company's summary judgment motion in full and granted plaintiff's partial summary judgment motion. On September 29, 2017, the court certified a nationwide class. The court also certified a Georgia subclass. Metropolitan Life said, "The Company intends to defend this action vigorously." No further updates were provided in the Company's SEC report. Metropolitan Life Insurance Company, together with its subsidiaries, provides insurance, annuities, employee benefits, and asset management services in the United States. The company was incorporated in 1868 and is based in New York, New York. Metropolitan Life Insurance Company is a subsidiary of MetLife, Inc. METROPOLITAN LIFE: Roycroft Class Action Dismissed -------------------------------------------------- Metropolitan Life Insurance Company said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on March 19, 2019, for the fiscal year ended December 31, 2018, that the court has dismissed the class action suit entitled, 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 Metropolitan Life Insurance Company and MetLife, Inc. 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. Metropolitan Life Insurance Company, together with its subsidiaries, provides insurance, annuities, employee benefits, and asset management services in the United States. The company was incorporated in 1868 and is based in New York, New York. Metropolitan Life Insurance Company is a subsidiary of MetLife, Inc. METROPOLITAN LIFE: Still Defends Julian & McKinney Suit ------------------------------------------------------- Metropolitan Life Insurance Company said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on March 19, 2019, for the fiscal year ended December 31, 2018, that the company continues to defend a class action suit entitled, Julian & McKinney v. Metropolitan Life Insurance Company (S.D.N.Y., filed February 9, 2017). Plaintiffs filed this putative class and collective action on behalf of themselves and all current and former long-term disability ("LTD") claims specialists between February 2011 and the present for alleged wage and hour violations under the Fair Labor Standards Act, the New York Labor Law, and the Connecticut Minimum Wage Act. The suit alleges that Metropolitan Life Insurance Company improperly reclassified the plaintiffs and similarly situated LTD claims specialists from non-exempt to exempt from overtime pay in November 2013. As a result, they and members of the putative class were no longer eligible for overtime pay even though they allege they continued to work more than 40 hours per week. Plaintiffs seek unspecified compensatory and punitive damages, as well as other relief. On March 22, 2018, the Court conditionally certified the case as a collective action, requiring that notice be mailed to LTD claims specialists who worked for the Company from February 8, 2014 to the present. The Company intends to defend this action vigorously. No further updates were provided in the Company's SEC report. Metropolitan Life Insurance Company, together with its subsidiaries, provides insurance, annuities, employee benefits, and asset management services in the United States. The company was incorporated in 1868 and is based in New York, New York. Metropolitan Life Insurance Company is a subsidiary of MetLife, Inc. MICHAELS COMPANIES: Court Approves Accord in FCRA-Related Suits --------------------------------------------------------------- The Michaels Companies, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on March 19, 2019, for the fiscal year ended February 2, 2019, that the California Superior Court has approved the parties' settlement of a class action alleging illegal background checks. On December 11, 2014, Michaels Stores, Inc. (MSI) was served with a lawsuit, Christina Graham v. Michaels Stores, Inc., filed in the U.S. District Court for the District of New Jersey by a former employee. The lawsuit is a purported class action, bringing plaintiff's individual claims, as well as claims on behalf of a putative class of applicants who applied for employment with Michaels through an online application, and on whom a background check for employment was procured. The lawsuit alleges that MSI violated the Fair Credit Reporting Act ("FCRA") and the New Jersey Fair Credit Reporting Act by failing to provide the proper disclosure and obtain the proper authorization to conduct background checks. Since the initial filing, another named plaintiff joined the lawsuit, which was amended in February 2015, Christina Graham and Gary Anderson v. Michaels Stores, Inc., with substantially similar allegations. The plaintiffs sought statutory and punitive damages as well as attorneys' fees and costs. Following the filing of the case in New Jersey, five additional purported class action lawsuits with six plaintiffs were filed, Michele Castro and Janice Bercut v. Michaels Stores, Inc., in the U.S. District Court for the Northern District of Texas, Michelle Bercut v. Michaels Stores, Inc. in the Superior Court of California for Sonoma County, Raini Burnside v. Michaels Stores, Inc., in the U.S. District Court for the Western District of Missouri, Sue Gettings v. Michaels Stores, Inc., in the U.S. District Court for the Southern District of New York, and Barbara Horton v. Michaels Stores, Inc., in the U.S. District Court for the Central District of California. All of the plaintiffs alleged violations of the FCRA. In addition, the Castro, Horton and Janice Bercut lawsuits also alleged violations of California's unfair competition law. The Burnside, Horton and Gettings lawsuits, as well as the claims by Michele Castro, have been dismissed. The Graham, Janice Bercut and Michelle Bercut lawsuits were transferred for centralized pretrial proceedings to the District of New Jersey. On January 24, 2017, the Company's motion to dismiss for lack of standing was granted, and the court declined to rule on the merits of plaintiffs' claims. The dismissal order was stayed for 30 days to allow the plaintiffs to amend their complaints. Because there were no amendments filed, two of the three centralized cases were dismissed and subsequently appealed to the U.S. Court of Appeals for the Third Circuit, and the remaining case (Michelle Bercut) was remanded to California Superior Court. The parties reached a class settlement which was approved by the California Superior Court on October 10, 2018. The resolution of the lawsuits did not have a material effect on our consolidated financial statements. The Michaels Companies, Inc. owns and operates arts and crafts specialty retail stores for Makers and do-it-yourself home decorators in North America. It operates Michaels stores that offer approximately 45,000 stock-keeping units (SKUs) in crafts, home decor and seasonal, framing, and paper crafting. The Michaels Companies, Inc. was founded in 2013 and is headquartered in Irving, Texas. MICRON TECHNOLOGY: Faces 3 Class Suits in New York -------------------------------------------------- Micron Technology, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on March 21, 2019, for the quarterly period ended February 28, 2019, that the company has been named as a defendant in three class action lawsuits in New York. On January 23, 2019, a complaint was filed against Micron and two of its officers, Sanjay Mehrotra and David Zinsner, in the U.S. District Court for the Southern District of New York. The lawsuit purports to be brought on behalf of a class of purchasers of our stock during the period from June 22, 2018 through November 19, 2018. Subsequently two substantially similar cases were filed in the same court adding one of our former officers, Ernie Maddock, as a defendant and alleging a class action period from September 26, 2017 through November 19, 2018. The three complaints allege that defendants committed securities fraud through misrepresentations and omissions about purported anticompetitive behavior in the DRAM industry and seek compensatory and punitive damages, fees, interest, costs, and other appropriate relief. Micron Technology, Inc., through its subsidiaries, manufactures and markets dynamic random access memory chips (DRAMs), static random access memory chips (SRAMs), flash memory, semiconductor components, and memory modules. The company is based in Boise, Idaho. MIDLAND CREDIT: Tillman Files Class Suit under FDCPA in Arkansas ---------------------------------------------------------------- A class action lawsuit has been filed against Midland Credit Management, Inc. The case is styled as Devonna Tillman also known as: Fricks, Devonna, individually and on behalf of all others similarly situated, Plaintiff v. Midland Credit Management, Inc., Midland Funding LLC and John Does 1-25, Defendants, Case No. 4:19-cv-04030-SOH (W.D. Ark., March 20, 2019). The docket of the case states the nature of suit as Consumer Credit filed pursuant to the Fair Debt Collection Practices Act. Midland Credit Management, Inc., a licensed debt collector, assists customers in resolving past-due financial obligations through various education and payment plans. The company was founded in 1953 and is based in San Diego, California. Midland Credit Management, Inc. operates as a subsidiary of Encore Capital Group, Inc.[BN] The Plaintiff is represented by: Yaakov Saks, Esq. Stein Saks, PLLC 285 Passaic Street Hackensack, NJ 07601 Tel: (201) 282-6500 Email: ysaks@steinsakslegal.com MOBILE TELESYSTEMS: Salim Says Financial Report Misleading ---------------------------------------------------------- SHAYAN SALIM, Individually and on behalf of all others similarly situated, the Plaintiff, vs. MOBILE TELESYSTEMS PJSC, ANDREI A. DUBOVSKOV, ALEXEY V. KORNYA, and ANDREY KAMENSKY, the Defendants,Case No. 1:19-cv-01589 (E.D.N.Y., March 19, 2019), is a federal securities class action on behalf of a class consisting of all persons and entities other than Defendants who purchased or otherwise acquired the publicly traded securities of Mobile TeleSystems from March 19, 2014 through March 7, 2019, both dates inclusive. According to the complaint, on March 18, 2014, the Company announced that had "received a voluntary request for documents and information regarding [its] business in Uzbekistan from the United States Securities and Exchange Commission regarding investigations into the activities of unaffiliated parties." On March 19, 2014, the Company disclosed that "the United States Department of Justice also is conducting a parallel investigation related to Mobile's former operations in Uzbekistan which concerned Mobile and not merely the activities of unaffiliated parties." On April 24, 2014, the Company filed a Form 20-F with the SEC, which provided its financial results and position for the fiscal year ended December 31, 2013. The 2013 20-F was signed by Defendant Dubovskov. The 2013 20-F contained signed certifications pursuant to the Sarbanes-Oxley Act of 2002 by Defendants Dubovskov and Kornya attesting to the accuracy of financial reporting, the disclosure of any material changes to the Company's internal controls over financial reporting, and the disclosure of all fraud. On November 20, 2018, the Company disclosed that it had reserved approximately $840 million as the potential liability concerning investigations by the SEC and the DOJ into its former operations in Uzbekistan. On this news, shares of Mobile TeleSystems' stock price fell $0.64 per share or nearly 8% to close at $7.45 per share on November 20, 2018. On March 7, 2019, the DOJ reported that the Company and its subsidiary entered into an agreement to pay $850 million in penalties to the United States to resolve charges arising from its role in a scheme to pay $420 million in bribes in Uzbekistan. Shares in Mobile TeleSystems' stock fell $0.24 per share or over 3% to close at $7.54 per share on March 7, 2019, damaging investors. As a result of Defendants' wrongful acts and omissions, and the precipitous decline in the market value of the Company's securities, the Plaintiff and other Class members have suffered significant losses and damages. Mobile TeleSystems purports to provide telecommunication services in Russia, Ukraine, Turkmenistan, and Armenia. The Company is incorporated in the Russian Federation with headquarters in Moscow, Russia. The Company's securities are traded on the New York Stock Exchange under the ticker symbol "MBT."[BN] Counsel for the Plaintiff: Phillip Kim, Esq. Laurence M. Rosen, Esq. THE ROSEN LAW FIRM, P.A. 275 Madison Ave., 34th Floor New York, NY 10016 Telephone: (212) 686-1060 Facsimile: (212) 202-3827 E-mail: pkim@rosenlegal.com lrosen@rosenlegal.com MONEY MAP: Carfagno Sues Over Unsolicited Text Messages ------------------------------------------------------- Terri Carfagno, individually and on behalf of all others similarly situated, Plaintiff, v. Money Map Press, LLC, Defendant, Case No. 8:19-cv-00728 (M.D. Fla., March 26, 2019) is a putative class action under the Telephone Consumer Protection Act ("TCPA"), arising from the Defendant's knowing and willful violations of the TCPA. According to the complaint, the Defendant engages in unsolicited telemarketing directed towards prospective customers with no regard for consumers' privacy rights. The Defendant's telemarketing consists of sending text messages to consumers soliciting them to purchase its goods and/or services. The Defendant caused thousands of unsolicited text messages to be sent to the cellular telephones of Plaintiff and Class Members, causing them injuries, including invasion of their privacy, aggravation, annoyance, intrusion on seclusion, trespass, and conversion. Through this action, Plaintiff seeks injunctive relief to halt the Defendant's illegal conduct. Plaintiff also seeks statutory damages on behalf of herself and Class Members, and any other available legal or equitable remedies resulting from the illegal actions of Defendant. Plaintiff is a natural person who, at all times relevant to this action, was a resident of Sarasota County, Florida. Defendant is a Maryland corporation who sells literary subscriptions to consumers which include self-help financial courses and documents.[BN] The Plaintiff is represented by: Michael Eisenband, Esq. EISENBAND LAW, P.A. 515 E. Las Olas Boulevard, Suite 120 Ft. Lauderdale, FL 33301 Phone: 954.533.4092 Email: MEisenband@Eisenbandlaw.com - and - Manuel S. Hiraldo, Esq. HIRALDO P.A. 401 E. Las Olas Boulevard, Suite 1400 Ft. Lauderdale, FL 33301 Phone: 954.400.4713 Email: mhiraldo@hiraldolaw.com MONSANTO COMPANY: Butkovich Sues for Injuries Over Roundup Exposure ------------------------------------------------------------------- David Butkovich and Candice Butkovich, Plaintiffs, v. Monsanto Company, Defendant, Case No. 4:19-cv-00653 (E.D. Mo., March 26, 2019) is an action for 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, containing the active ingredient glyphosate. In 1996, the New York Attorney General ("NYAG") filed a lawsuit against Monsanto based on its false and misleading advertising of Roundup products. Among the representations the NYAG found deceptive and misleading about the human and environmental safety of Roundup. Monsanto did not alter its advertising in the same manner in any state other than New York, and on information and belief still has not done so today. The results of these studies were confirmed in recently published peer-reviewed studies and were at all times available and/or known to Defendant. The Defendant knew or should have known that Roundup is more toxic than glyphosate alone and that safety studies on Roundup, Roundup's adjuvants and "inert" ingredients, and/or the surfactant POEA were necessary to protect Plaintiff from Roundup. The Defendant failed to appropriately and adequately test Roundup, Roundup's adjuvants and "inert" ingredients, and/or the surfactant POEA to protect Plaintiff from Roundup. The Defendant fraudulently, intentionally, and/or negligently misrepresented to the public, and to the Plaintiffs, both directly and by and through the media, the scientific literature and purported "community outreach" programs, the safety of Roundup products, and/or fraudulently, intentionally, and/or negligently concealed, suppressed, or omitted material, adverse information regarding the safety of Roundup, says the complaint. Plaintiffs are residents and citizens of Bond County, Illinois who endured personal injuries sustained by exposure to Roundup. Defendant advertises and sells goods, specifically Roundup, in the State of Missouri.[BN] The Plaintiffs are represented by: Seth S. Webb, Esq. BROWN & CROUPPEN, P.C. 211 North Broadway, Suite 1600 St. Louis, MO 63102 Phone: (314) 222-2222 Facsimile: (314) 421-0359 Email: sethw@getbc.com MONSANTO COMPANY: Cossentinos Sue over Sale of Herbicide Roundup ---------------------------------------------------------------- FRANCIS J. COSSENTINO, and DIANA LYNN COSSENTINO, the Plaintiffs, v. MONSANTO COMPANY, the Defendants, Case No. 1:19-cv-00210-TSB (S.D. Ohio, March 19, 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: Damon B. Willis, Esq. EWING & WILLIS 6009 Brownsboro Park Blvd., Suite B Louisville, KY 40207 Telephone: (502) 585-5800 Facsimile: (502) 585-5858 E-mail: damonwillislawyer@yahoo.com - and - Jennifer A. Moore, Esq. Ashton Rose Smith, Esq. MOORE LAW GROUP, PLLC 1473 S. Fourth Street Louisville, KY 40208 Telephone: (502) 717-4080 Facsimile: (502) 717-4086 E-mail: jennifer@moorelawgroup.com ashton@moorelawgroup.com NATIONAL ASSOCIATION: Says Antitrust Class Action Baseless ---------------------------------------------------------- The Real Deal reports that it takes aim at some of the central tenets of the U.S. real estate business: Multiple Listing Services and buyer's broker's commissions. A new class action lawsuit alleges that the National Association of Realtors, along with the "Big Four" -- Realogy, HomeServices of America, RE/MAX and Keller Williams -- violated federal antitrust law by conspiring to require home sellers to pay buyer's broker's commissions at inflated rates. The suit was first reported by Inman. The complaint, filed March 6, takes aims at NAR rules that require all brokers to offer buyer broker compensation when listing a property on a MLS, saying this has driven up costs to the seller and stifled competition. "Because most buyer brokers will not show homes to their clients where the seller is offering a lower buyer broker commission, or will show homes with higher commission offers first, sellers are incentivized when making the required blanket, non-negotiable offer to procure the buyer brokers' cooperation by offering a high commission," the complaint reads, "Absent this rule, buyer brokers would be paid by their clients and would compete to be retained by offering a lower commission." Filed on behalf of Christopher Moehrl, a homeseller from Minnesota, the lawsuit also says it will represent any home sellers who sold property and paid a broker commission in the last four years in specific geographic areas covered by different regional MLSs. This includes areas in Texas, Maryland, North Carolina, Ohio, Colorado, Michigan, Florida, Nevada, Wisconsin, Minnesota, Pennsylvania, Arizona, Virginia, Utah and the District of Columbia. If other homesellers joined the class action, the defendants could find themselves potentially liable for millions of dollars. NAR responded by calling the lawsuit "baseless." "The U.S. Courts have routinely found that Multiple Listing Services are pro-competitive and benefit consumers by creating great efficiencies in the homebuying and selling process," Mantill Williams, a spokesperson for NAR, told Inman. "NAR looks forward to obtaining a similar precedent regarding this filing." On its website, NAR argues that MLSs and their accompanying rules encourage both competition and cooperation among brokers to the benefit of the consumer. "The real estate market is competitive, and the business is unique in that competitors must also cooperate with each other to ensure a successful transaction. MLS systems facilitate that cooperation," NAR's website states. "MLSs are a powerful force for competition. They level the playing field so that the smallest brokerage in town can compete with the biggest multi-state firm." [GN] NATIONAL FOOTBALL: Ryan et al. Sue over Non-Calls by Referees ------------------------------------------------------------- DANIEL RYAN; and BARBARA RYAN, individually and on behalf of all others similarly situated, Plaintiffs v. NATIONAL FOOTBALL LEAGUE, INC.; ROGER GOODELL; WILLIAM VINOVICH, III; PATRICK TURNER; GARY CAVALETTO; and ALBERTO RIVERON, Defendants, Case No. 2:19-cv-01811-SM-DMD (E.D. La., Feb. 27, 2019) is an action against the Defendants over violation of league rules. According to the complaint, the referee during the football game ignored the fouls committed by one of the team's defender that changed the outcome of the game. Also, the failure of the Defendants to appropriately and publicly acknowledge, investigate and take appropriate action per their own league rules concerning the intentional non-calls was a violation of fan trust and the very integrity of the game. National Football League, Inc. owns and operates a football league in the United States and internationally. The company offers news, videos, teams, players, scores, schedules, stats, and standings; and online services, such as game rewind, field pass, game pass, tools and widgets. It provides its services through online, radio, mobile, and TV. National Football League, Inc. was formerly known as American Professional Football Association and changed its name to National Football League, Inc. in June 1922. The company was founded in 1920 and is based in New York, New York. It has operations in Canada, China, France, Japan, Mexico, and the United Kingdom. [BN] The Plaintiffs are represented by: Cle Simon, Esq. SIMON LAW OFFICES 122 Representative Row Lafayette, LA 70505 Telephone: (337) 232-2000 Facsimile: (337) 234-9274 E-mail: cle@simonlawoffices.com - and - Kevin R. Duck, Esq. DUCK LAW FIRM, L.L.C. 5040 Ambassador Caffery Parkway, Ste. 200 Lafayette, LA 70508 Telephone: (337) 406-1144 Facsimile: (337) 406-1050 E-mail: krd@ducklawfirm.com NATIONWIDE CREDIT: Has Made Unsolicited Calls, Stines Suit Claims ----------------------------------------------------------------- JULIANA STINES, individually and on behalf of all others similarly situated, Plaintiff v. NATIONWIDE CREDIT, INC., Defendant, Case No. 1:19-cv-00967-LMM (N.D. Ga., Feb. 27, 2019) seeks to stop the Defendant's practice of making unsolicited calls. Nationwide Credit, Inc., a collection agency, provides customer relationship and accounts receivable management services. The company was founded in 1947 and is based in Tempe, Arizona. Nationwide Credit, Inc. operates as a subsidiary of Altisource Portfolio Solutions S.A. [BN] The Plaintiff is represented by: Shireen Hormozdi, Esq. 1770 Indian Trail Lilburn Road, Suite 175 Norcross, GA 30093 Telephone: (678) 395-7795 Facsimile: (866) 929-2434 E-mail: shireen@norcrosslawfirm.com - and - Gary M. Klinger, Esq. KOZONIS & KLINGER, LTD. 4849 N. Milwaukee Ave., Ste. 300 Chicago, IL 60630 Telephone: (312) 283-3814 Facsimile: (773) 496-8617 E-mail: gklinger@kozonislaw.com - and - Michael L. Greenwald, Esq. GREENWALD DAVIDSON RADBIL PLLC 5550 Glades Road, Suite 500 Boca Raton, FL 33431 Telephone: (561) 826-5477 Facsimile: (561) 961-5684 E-mail: mgreenwald@gdrlawfirm.com NCC BUSINESS: Elhendi Suit Asserts TCPA Violation ------------------------------------------------- MOHAMED ELHENDI, individually and on behalf of all others similarly situated, Plaintiff, v. NCC BUSINESS SERVICES, INC., and DOES 1 through 10, inclusive, Defendant, Case No. 8:19-cv-00576 (C.D. Cal., March 26, 2019) seeks damages, injunctive relief, and any other available legal or equitable remedies, resulting from the illegal actions of Defendant in negligently, knowingly, and/or willfully contacting Plaintiff's cellular telephone, in violation of the Telephone Consumer Protection Act ("TCPA"). In its efforts to collect the alleged debt owed from Plaintiff, the Defendant used an "automatic telephone dialing system," to place its daily calls to Plaintiff seeking to collect an alleged debt owed. The Defendant did not possess Plaintiff's "prior express consent" to receive calls using an automatic telephone dialing system or an artificial or prerecorded voice on his cellular telephone, says the complaint. Furthermore, Plaintiff orally revoked any and all consent to be contacted using an automated telephone dialing system, to the extent any ever existed. Despite Plaintiff's oral revocation of consent to be called, Defendant continued to call Plaintiff, the complaint asserts. Plaintiff, MOHAMED ELHENDI is a natural person residing in Orange County in the state of California. NCC BUSINESS SERVICES, INC. is company engaged in collection activity in connection with debts allegedly owed to it.[BN] The Plaintiff is represented by: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. Meghan E. George, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St., Suite 780 Woodland Hills, CA 91367 Phone: 323-306-4234 Fax: 866-633-0228 Email: tfriedman@toddflaw.com abacon@toddflaw.com mgeorge@toddflaw.com NEW MEXICO: 10th Cir. Affirms Dismissal of Bail System Suit ----------------------------------------------------------- The United States Court of Appeals, Tenth Circuit, issued an Opinion affirming the District Court's judgment granting Defendant's Motion to Dismiss in the case captioned DARLENE COLLINS; BAIL BOND ASSOCIATION OF NEW MEXICO; RICHARD MARTINEZ; BILL SHARER; CRAIG BRANDT; cARL TRUJILLO, Plaintiffs-Appellants, v. CHARLES W. DANIELS; EDWARD L. CHAVEZ; PETRA JIMENEZ MAEZ; BARBARA J. VIGIL; JUDITH K. NAKAMURA; NEW MEXICO SUPREME COURT; NAN NASH; THE SECOND JUDICIAL COURT; HENRY A. ALAINZ; ROBERT L. PADILLA; BERNALILLO COUNTY METROPOLITAN COURT; JAMES NOEL; BERNALILLO COUNTY; BOARD OF COUNTY COMMISSIONERS, COUNTY OF BERNALILLO, Defendants-Appellees. Nos. 17-2217 and 18-2045. (10th Cir.). This is a Section 1983 case that challenges the constitutionality of New Mexico's system of bail. Plaintiffs-Appellants Darlene Collins, the Bail Bond Association of New Mexico (BBANM), and five New Mexico state legislators allege that New Mexico's system of bail violates the Excessive Bail Clause of the Eighth Amendment, as well as the procedural and substantive components of the Due Process Clause of the Fourteenth Amendment. The district court granted the Defendants' motion to dismiss because it found that BBANM and the Legislator Plaintiffs lack standing, the Defendants are immune from suit, and the Plaintiffs failed to state a claim. BBANM The Plaintiffs argue that BBANM has standing because it (1) has associational standing and (2) has third-party standing to assert the constitutional rights of potential customers who will be denied bail. In reality, whether BBANM has standing is only a question of third-party standing. An association has standing to raise the claims of its members, only if: (a) its members would otherwise have standing to sue in their own right (b) the interests it seeks to protect are germane to the organization's purpose and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. The Court need only consider the first prong of associational standing. Because BBANM's members are not criminal defendants, they do not possess the Eighth and Fourteenth Amendment rights asserted in the Plaintiffs' complaint. Therefore, like BBANM itself, BBANM's members only have standing if they can assert the constitutional rights of criminal defendants. The Legislator Plaintiffs A threshold question in the legislator standing inquiry is whether the legislator-plaintiffs assert an institutional injury. Individual legislators may not support standing by alleging only an institutional injury. An institutional injury constitutes some injury to the power of the legislature as a whole rather than harm to an individual legislator. The Plaintiffs suggest that the Legislator Plaintiffs have standing to challenge the 2017 Rules because the rules represent an unconstitutional usurpation of legislative] power by the New Mexico Supreme Court. Darlene Collins The Defendants do not challenge Collins's standing on appeal, though they did unsuccessfully raise the issue before the district court in their motion to dismiss. The Court can raise issues of standing and mootness sua sponte because the Court have an independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party. In summary, BBANM and the Legislator Plaintiffs lack standing to assert the claims raised in this case; Collins has standing to seek damages and retrospective declaratory relief based on the alleged violation of her Eighth and Fourteenth Amendment rights; but Collins's claims for prospective declaratory and injunctive relief are moot. Therefore, we turn to the question of whether Defendants are immune to Collins's claims for damages and retrospective declaratory relief. The Court review de novo whether Defendants are immune from suit. The proponent of a claim to absolute immunity bears the burden of establishing the justification for such immunity. Three immunity doctrines are at issue in this case, sovereign immunity, judicial immunity, and legislative immunity. Sovereign Immunity Per the Eleventh Amendment, states may not be sued in federal court unless they consent to it in unequivocal terms or unless Congress, pursuant to a valid exercise of power, unequivocally expresses its intent to abrogate the immunity. This prohibition encompasses suits against state agencies[ and suits against state officials acting in their official capacities. Amendment's prohibition on suits against states in federal court by seeking to enjoin a state official from enforcing an unconstitutional statute. Collins has sued three New Mexico courts and various state officials in their official capacities to obtain declaratory and injunctive relief. New Mexico has not consented to this suit and Congress has not abrogated New Mexico's immunity from Plaintiffs' Section 1983 claims. Therefore, the Court must decide whether the New Mexico courts named as defendants are entitled to sovereign immunity and whether Ex parte Young allows Collins to proceed against the state officials in their official capacities. Collins's claims against the state officials in their official capacities also fail. Collins cannot proceed under Ex parte Young because she only has standing to seek retrospective declaratory relief. Therefore, sovereign immunity also bars Collins's claims against the individual defendants in their official capacities. Judicial Immunity Like other forms of official immunity, judicial immunity is an immunity from suit, not just from ultimate assessment of damages. The immunity applies only to personal capacity claims. At issue here is whether the chief judges and court executive officers of the Second Judicial District Court and the Bernalillo County Metropolitan Court are immune from Collins's claims for damages. In two sentences of their complaint, Plaintiffs allege that the Second Judicial District Court and the Bernalillo County Metropolitan Court adopted and implemented the Arnold Tool. In the district court, Plaintiffs argued that these were administrative, not judicial, acts. The district court found that judicial immunity barred Plaintiffs' claims against the chief judges and court executive officers, in their individual capacities, because Plaintiffs' claims targeted the judicial act of implementing the 2017 Rules. In their briefing on appeal, Plaintiffs never discuss how the district court erred when analyzing judicial immunity. In a single clause from the section of their Opening Brief discussing Rule 11 sanctions, Plaintiffs passingly characterize adoption of the Arnold Tool as a ministerial decision. Plaintiffs have abandoned their argument regarding judicial immunity by failing to address the district court's analysis or cite authority for their position. Legislative Immunity Absolute legislative immunity attaches to all actions taken in the sphere of legitimate legislative activity. Whether an act is legislative turns on the nature of the act, rather than on the motive or intent of the official performing it. A state court and its members are immune from suit when acting in their legislative capacity, such as by promulgating rules of general application that are statutory in character. In summary, sovereign immunity bars Collins's claims against the state courts and state officials in their official capacities; the Plaintiffs have abandoned their argument regarding judicial immunity, which disposes of Collins's claims against the state court chief judges and court executive officers in their individual capacities; and legislative immunity bars Collin's claims against the supreme court justices in their individual capacities. To bring it all together, Collins is the only Plaintiff with standing, but the Defendants are immune to her claims, so we do not address the merits of Collins's claims that the 2017 Rules and the Arnold Tool violate the Eighth and Fourteenth Amendments. Rather, the Court turn to the issue of sanctions. A sanction order against an attorney currently of record is not a final decision for purposes of a Section 1291 appeal where the underlying controversy remains unresolved. Even once the merits of a case have been resolved, an appeal from the award of sanctions may not be taken until the amount has been determined. Here, the district court's order imposing Rule 11 sanctions is a final appealable order because the substance of the case has been resolved and the parties have stipulated that the sanction is $14,868.00. The funds have been deposited in the registry of the district court, where they are earning interest. The Plaintiffs' standing arguments ignored controlling precedent. Under Kowalski, 543 U.S. at 131-34, BBANM and its members lack standing to assert the constitutional rights of criminal defendants. Under Kerr II, 824 F.3d at 1214-17, the Legislator Plaintiffs lack standing to assert an institutional injury. When the Plaintiffs were confronted with these binding authorities in the Defendants' motion to dismiss and motion for Rule 11 sanctions, the Plaintiffs unreasonably attempted to distinguish themselves from the plaintiffs in Kowalski and Kerr II. The Plaintiffs' arguments regarding immunity suffer from similar infirmities. Most glaringly, the Plaintiffs maintained that any argument regarding sovereign immunity was just not applicable in this case because Congress waived sovereign immunity for individual state actors by enacting Section 1983. It also offers no explanation why the Plaintiffs thought the New Mexico Supreme Court, the Second Judicial District Court, and the Bernalillo County Metropolitan Court were proper defendants. The Plaintiffs' arguments regarding judicial and legislative immunity fare little better. The Plaintiffs abandoned their arguments about judicial immunity by failing to adequately brief them on appeal. Accordingly, the Plaintiffs have not shown how the district court abused its discretion when finding that the Plaintiffs' arguments regarding judicial immunity were not supported by existing law. The Court ordinarily review a denial of a motion to amend a pleading for abuse of discretion. However, when denial is based on a determination that amendment would be futile, our review for abuse of discretion includes de novo review of the legal basis for the finding of futility. While the Defendants' motion to dismiss and motion for Rule 11 sanctions were pending, the Plaintiffs sought leave to amend their complaint to add a new claim: that the Defendants violated the Plaintiffs' First Amendment right to freedom of speech by moving for sanctions. The district court denied the motion to amend as futile because the First Amendment does not protect frivolous claims, so the Rule 11 Motion was not a retaliatory act to punish the Plaintiffs, but rather, an acceptable pleading expressly allowed by the Federal Rules of Civil Procedure. The right of access to the courts is an aspect of the First Amendment right to petition the Government for redress of grievances. As discussed when affirming the district court's imposition of Rule 11 sanctions, the Plaintiffs' arguments regarding standing and immunity were baseless. Therefore, the district court correctly found that the Plaintiffs' motion to amend was futile; the Defendants' motion for Rule 11 sanctions did not interfere with the Plaintiffs' First Amendment rights. Accordingly, the Court affirms. A full-text copy of the Tenth Circuit's February 25, 2019 Opinion is available at http://tinyurl.com/y4my9qpqfrom Leagle.com. Richard Westfall -- rwestfall@halewestfall.com -- Hale Westfall, Denver, Colorado (A. Blair Dunn and Dori E. Richards, Western Agriculture, Resource and Business Advocates, LLP, Albuquerque, New Mexico, with him on the briefs), appearing for Appellants. Ari Biernoff, Office of the New Mexico Attorney General, Santa Fe, New Mexico, appearing for Appellees Charles W. Daniels, Edward L. Chavez, Petra Jimenez Maez, Barbara J. Vigil, Judith K. Nakamura, the New Mexico Supreme Court, Nan Nash, the Second Judicial Court, Henry Alainz, Robert Padilla, the Bernalillo County Metropolitan Court, and James Noel. Brandon Huss, The New Mexico Association of Counties, Santa Fe, New Mexico, on the brief for Appellee County Commissioners of the County of Bernalillo. NORTH CAROLINA: Inmate's ADA Retaliation Claim Dismissed -------------------------------------------------------- PAUL SEELIG, the Plaintiff, vs. KENNETH LASSITER, et al., the Defendants, Case No. 5:18-CT-3206-D (E.D.N.C.), the Hon. Judge James C. Denver entered an order on March 18, 2019: 1. granting in part Plaintiff's motion for appointment of counsel; 2. appointing North Carolina Prisoner Legal Services, a non-profit legal services firm, to assist the Plaintiff with conducting discovery; 3. dismissing Seelig's section 1983 claim, the John Doe Defendants, and all Defendants in their individual capacities; 4. dismissing Seelig's request for punitive damages and Seelig's request for compensatory damages based on Seelig's ADA retaliation claim (Seelig may proceed with his ADA claims, but he must file a response to this order explaining the specific role of each defendant in his ADA claims on or before April 5, 2019. The amended complaint will be subject to further frivolity review.); and 5. directing the clerk to send Seelig a form section 1983 complaint with a copy of the order (Seelig's failure to file an amended complaint will result in the dismissal of the action). Kenneth Lassiter is North Carolina Prisons Director. On August 7, 2018, Paul Seelig, a state inmate proceeding pro se and in forma pauperis, filed a complaint under 42 U.S.C. section 1983 and the Americans with Disabilities Act. Seelig moves for appointment of counsel, to reassign this action to another judge, for class certification, and for a preliminary injunction. In addition, a second inmate, Ricky Banks, has filed motions for sanctions and a writ of mandamus. The Court said Seelig has not plausibly alleged that he is likely to succeed on the merits, that he is likely to suffer irreparable harm absent injunctive relief, that the balance of equities tips in his favor, or that an injunction is in the public interest. Thus, the court denies the motion.[BN] O'BRIEN STEEL: Stecker Seeks OT Wages for Sales Representatives --------------------------------------------------------------- LINDA STECKER, individually and on behalf of all others similarly situated, Plaintiff, v. O'BRIEN STEEL SERVICE CO., the Defendant, Case No. 19-CV-400 (E.D. Wisc., March 19, 2019), alleges that O'Brien has failed to compensate the Plaintiff and the class members for overtime wages dues in violation of the Fair Labor Standards Act of 1938 and Wisconsin's wage and hour laws. Stecker contends that since March 19, 2016, O'Brien has had a common policy and practice of failing to compensate its Inside Sales Representatives for all hours worked in excess of 40 in a given workweek and failing to factor certain non-discretionary bonuses into the overtime rates of the Inside Sales Representatives for purposes of determining overtime compensation. According to the complaint, the Plaintiff and the Wisconsin Class work, or have worked, for O'Brien as Inside Sales Representatives at O'Brien's Wisconsin locations at times since March 19, 2017. Since March 19, 2016, O'Brien has employed Plaintiff Stecker and the Classes as Inside Sales Representatives with a primary duty of selling O'Brien's steel products. O'Brien has failed to properly compensate Plaintiff Stecker and the Classes at one and one-half times their respective, regular rates of pay for all hours worked in excess of 40 in a workweek in violation of the FLSA and in violation of Wisconsin law, the lawsuit says. O'Brien processes and sells steel products used in a variety of industries, including the construction, mining, agriculture, and railroad industries, among others.[BN] Attorneys for the Plaintiffs: Timothy P. Maynard, Esq. Larry A. Johnson, Esq. Summer H. Murshid, Esq. HAWKS QUINDEL S.C. 222 East Erie Street, Suite 210, PO Box 442 Milwaukee, WI 53201-0442 Telephone: 414-271-8650 Facsimile: 414-271-8442 E-mail: ljohnson@hq-law.com smurshid@hq-law.com tmaynard@hq-law.com PARK KITCHEN: Court Dismisses N. Allison's Wage & Hour Suit ----------------------------------------------------------- The United States District Court for the District of Oregon, Portland Division, issued an Opinion and Order granting Defendants' Motion for Summary Judgment, alleging the doctrine of claim preclusion bars further adjudication in in the case captioned NANCY ALLISON and HOLLY BURNEY, both in their individual capacities and, in addition, as a collective action on behalf of others similarly situated, Plaintiffs, v. SCOTT DOLICH and ANNA JOSEPHSON, indivuals; and PARK KITCHEN LLC and THE BENT BRICK, LLC, Oregon limited liability companies, Defendants. Case No. 3:14-cv-01005-AC. (D. Or.). Plaintiffs Nancy Allison and Holly Burney filed this collective1 and individual action against their former employer seeking money damages and declaratory relief for violations of the Fair Labor Standards Act (FLSA). In the Second Amended Complaint filed, the Plaintiffs alleged the Defendants violated the Act by requiring the Plaintiffs, and collective members, to participate in a mandatory invalid tip pool in violation of 29 U.S.C. Section 203(m) and, consequently, violated 29 U.S.C. Section 206 by failing to pay them the federal minimum wage when such wage was due. Three days after filing the Federal Complaint, the Plaintiffs initiated a second lawsuit in the Circuit Court of the State of Oregon for the County of Multnomah. In the Second Amended Individual and Class Action Complaint, the Plaintiffs alleged violations of Oregon's wage and hour laws, as well as numerous equitable and common law claims, against Dolich, Josephson, Park Kitchen, and Bent Brick. The Defendants now move for summary judgment in the Federal Action on the grounds that the Plaintiffs' claims are barred by the doctrine of claim preclusion. Claim preclusion, or res judicata, generally prohibits a party from relitigating the same claims that were raised or could have been raised in a prior action. Oregon case law displays a strong allegiance to the doctrine of claim preclusion. Unlike issue preclusion, claim preclusion does not require actual litigation of an issue of fact or law nor does it require that the determination of the issue be essential to the final or end result reached in the action, claim or proceeding (Drews v. EBI Companies, 310 Or. 134, 140, 795 P.2d 531, 535 (1990)). Rather, for claim preclusion to apply, a party simply must have had the opportunity to litigate, whether or not it was used, and finality in the previous action. The Defendants allege the State and Federal Actions ultimately stem from the same factual allegations: that these particular Defendants, particularly with respect to tips, did not pay these particular Plaintiffs the amounts Plaintiffs claim that they should have. The Defendants also allege the claims in both Actions could have been litigated in one proceeding, and therefore the imposition of claim preclusion is warranted in this Action. The Plaintiffs disagree, arguing the Defendants have failed, in a variety of ways, to prove claim preclusion applies. Specifically, the Plaintiffs allege (1) the Defendants waived res judicata by failing to timely plead a preclusion defense and by acquiescing to dual litigation in multiple forums (2) every claim of every plaintiff was not decided on the merits against every defendant (3) the State and Federal Actions do not involve the same parties (4) the State and Federal Actions do not involve the same factual transaction and (5) there was not a full and fair opportunity to litigate the claims together. Whether Defendants Timely Pleaded Res Judicata Waiver Under Federal Rule of Civil Procedure 8(c) The Plaintiffs challenge the Defendants' assertion of res judicata, arguing they failed to properly plead a preclusion defense or to plead it with adequate specificity. Consequently, the Plaintiffs claim the Defendants' assertion of res judicata is untimely in this case. The Defendants counter that until the jury trial concluded and final judgment became imminent in the State Action, there was no basis on which to plead a preclusion defense. Thus, the Defendants allege they raised the issue "as soon as practicable under the circumstances. The court agrees with the Defendants. A preclusion defense was unavailable until a final judgment issued in the State Action, and the Defendants filed this Motion in the Federal Action shortly after jury and bench verdicts were rendered for the Plaintiffs in state court. In fact, the issue was fully briefed by both parties before final judgment was entered in the State Action on February 19, 2019. The Defendants thus asserted res judicata almost immediately upon learning its availability was imminent. Waiver by Acquiescence Waiver by acquiescence is a recognized exception to the doctrine of claim preclusion. The exception is implicated when a plaintiff pursues multiple actions involving the same claim simultaneously rather than sequentially. When such circumstances arise, the defendant waives her right to rely on claim preclusion if she acquiesces to defending multiple lawsuits by failing to timely object to the plaintiffs pursuit of parallel litigation. The Plaintiffs argue the Defendants have waived their ability to rely on res judicata because they have acquiesced to litigating in multiple forums. Specifically, the Plaintiffs allege that while the Defendants objected vociferously in the State Action, they failed to do so in this case, and never suggested that a final judgment in the State Action would preclude resolution of the Federal Action. The Defendants refute the Plaintiffs' arguments, recounting their numerous attempts to consolidate the litigation, including removing the State Action to this court. Consequently, the Defendants allege they have done everything short of scream from the mountaintops that they sought to litigate this case in a single federal forum. Here, the Defendants have attempted from the outset to utilize multiple procedural devices to force the Plaintiffs to consolidate the two actions into a single proceeding in one forum. At no point have the Defendants delayed objection to the Plaintiffs' pursuit of dual litigation, nor have they sat on their rights in either court. The Defendants have objected vigorously and often to the Plaintiffs' unilateral and affirmative pursuit of dual actions, and notified both courts that parallel litigation was pending in both forums. The Plaintiffs' argument that the Defendants acquiesced to dual litigation by failing to object in this action is meritless. The Defendants therefore have not waived their right to assert a preclusion defense here. Whether Every Claim Was Decided on the Merits in the State Action The Plaintiffs contend that at least some claims in the State Action were not resolved on their merits, alleging the state court ruled plaintiffs' retaliation claims against the individual defendants would not be included in the trial because defendants allegedly had insufficient notice of a recent change in the law allowing them. The Defendants counter that each of the Plaintiffs' retaliation claims were resolved on the merits by the state court's entry of summary judgment or at trial. The Defendants explain the state court declined to allow only one of six retaliation claims to move forward against Dolich and Josephson individually because it was unclear in the State Complaint whether the claim was asserted against them as individuals. The Plaintiffs' argument is unavailing. Evidence in the record indicates only one of six separate retaliation claims adjudicated in the State Action were alleged against Dolich and Josephson individually, while four were alleged solely against Park Kitchen and one against Defendants generally. Whether the State and Federal Actions Involve the Same Parties The Plaintiffs do not dispute the State and Federal Actions involve the same defendants, but allege the two actions do not involve the same plaintiffs. At oral argument on the Motion, the Plaintiffs specifically argued opt-in plaintiff Mary Bartlett (Bartlett) was not a party to the State Action and therefore is not subject to preclusion in this case. The record before the court, however, reveals that Bartlett is listed in the Plaintiffs' exhibits summarizing relevant records and alleged damages among the minimum wage, wrongful deduction, and tip-theft class members in the State Action. In fact, the state filings submitted here demonstrate Bartlett was entitled to damages as a member of both the successful minimum wage and wrongful deduction classes. The Federal and State Actions therefore involved the same parties and the Plaintiffs' arguments to the contrary are meritless. Whether the State and Federal Actions Involve the Same Factual Transaction The Defendants allege the State and Federal Actions unquestionably flow from the same factual transaction. Specifically, the Defendants cite a number of similarities between the two, arguing both cases involve the same parties; the same allegedly unlawful policy of pooling tips among managers and front-of-the-house and back-of-the-house employees; the same paychecks, rates of pay and pay dates and the same allegedly unlawful motivation for terminating. The Plaintiffs do not dispute that Allison and Burney's individual claims in the Federal and State Actions are based on identical facts. Rather, the Plaintiffs argue two separate transactions are involved here: (1) the Defendants' taking of the Plaintiffs' tips and failing to pay them; and (2) the Defendant's failure to pay the appropriate federal minimum wage. Time Time is a significant factor that requires the reviewing court to consider whether enough events giving rise to the second claim occurred prior to the initiation of the first claim so the party against whom preclusion is sought could have combined the later claims with the earlier ones. The Plaintiffs contend the events giving rise to the State and Federal Action are different in time because the tip claims in the State Action are based on the Defendants' failure to pay the Plaintiffs' tips in a weekly tip check, whereas the Federal Action is based on the Defendants' failure to pay the federal minimum wage in a biweekly paycheck. The Defendants' tip-pooling practices within an overlapping period of time, and the Defendants' liability stemming from those practices had already arisen at the time both lawsuits were filed. Indeed, the Plaintiffs admitted to this court and conceded in multiple documents that all of their claims could have been filed together in one action, but that they affirmatively chose not to do so. The time factor therefore weighs in favor of preclusion. Space Closely related to the time factor, the space criterion requires the court to consider whether the events giving rise to liability are physically far removed from each other. The wrongful acts in both the State and Federal Actions allegedly occurred in identical physical locations: Park Kitchen and the Bent Brick, restaurants located in the City of Portland. The Plaintiffs claim the dissimilar violations at issue in the State and Federal Actions were different in place, but they do not allege, and the record does not reflect, the violations at issue in either case occurred in any location other than Park Kitchen or the Bent Brick. The space factor thus weighs in favor of preclusion. Origin The origin factor refers to the harm at issue whatever it was that caused the party against whom preclusion is asserted to complain in the first place. The Plaintiffs allege the origin of the harm in the State and Federal Actions is different because the State Action is based on the Defendants' taking and nonpayment of the Plaintiffs' tips, while the Federal Action is based on Defendants' failure to pay minimum wage. The Defendants take a broader view, arguing the harm in both the State and Federal Actions originated largely from the taking and redistribution of the Plaintiffs' tips pursuant to the tip-pooling policy, which included wrongfully distributing tips to both front- and back-of-house employees and management. The source of the complaint in the Federal Action was the Defendants' failure to pay the Plaintiffs the minimum wage to which they were entitled as a result of the Defendants taking their tips pursuant to an invalid tip pool. The origin of the harm in both cases thus is the reduction in pay inflicted on the Plaintiffs' through mandatory participation in the invalid tip pool. The origin factor weighs in favor of preclusion. Motivation Motivation, which may be viewed objectively or subjectively and can be a pivotal consideration, requires the court to consider whether the defendants committed a series of acts against the plaintiff motivated by a common plan or scheme. Here, the Defendants' acts against Plaintiffs in both actions were motivated by a common scheme: the invalid tip pool. The Defendants' failure to pay the appropriate minimum wage was also due to adherence to the invalid tip-pooling policy because the scheme effectively lowered Plaintiffs' wages below the federal minimum wage rate. Motivation therefore weighs in favor of preclusion. Convenience The convenience factor requires the court to consider issues of trial convenience, and whether the party against whom preclusion is sought had the ability to try the various claims at issue in a single proceeding. In the State Action, the Plaintiffs alleged that the Defendants wrongfully took ownership of Plaintiffs' tips by requiring them to participate in an invalid tip pool and failed to pay them the tips to which they were entitled. In the Federal Action, Plaintiffs alleged Defendants' invalid tip pool lowered their effective minimum wage rate below the federal minimum to which they were entitled. Both actions relied on the same pay and time records, the same witnesses, proof of the same events occurring during the same time period, and Allison and Burney's testimony which was virtually identical in both cases. The Plaintiffs, however, argue the State and Federal Actions could not have been conveniently litigated in one proceeding. Specifically, Plaintiffs allege fewer than 40 members made up each subclass for the state claims too few to meet the numerosity requirement for class certification in federal court. The Plaintiffs provide no authority, from this district or otherwise, to support the proposition that a class or subclass of fewer than 40 members cannot be certified. Furthermore, Plaintiffs have failed to point to any evidence in the record of this case that supports an inference of this court's unwillingness to certify a class or subclass composed of less than 40 members. There is no reason to believe that the classes would need to be further broken down beyond the minimum wage, wrongful deduction, and tip theft classes, as Plaintiffs suggested in oral argument. The factors considered in determining whether numerosity is met thus would have favored finding the requirement is met here. Plaintiffs' contention that numerosity would have prevented litigating the State and Federal Actions together in a single forum are unpersuasive. The convenience factor thus weighs in favor of preclusion. Similarity of Acts Finally, the court must consider the similarity between the acts that caused harm to the plaintiff. If the acts giving rise to the harm complained of are very different, such as a physical assault and a forgery, the argument for preclusion is diminished. Here, the acts about which the Plaintiffs complain in the two cases are different, but the acts combine to cause a single form of harm. The State Action alleged tort and equitable claims stemming from the theft of Plaintiffs' tips whereas the Federal Action alleged a statutory violation under federal law for failing to pay the required minimum wage. Though these acts are different on their face, they both harm the Plaintiffs by withholding the pay to which they are entitled. Whether All Claims Could Have Been Fully and Fairly Litigated Together The Plaintiffs claim formal barriers create an exception to the preclusive effect that might otherwise bar their federal claims. Specifically, the Plaintiffs allege the numerosity required for class certification in federal actions, Oregon's constitutional right to a non-unanimous jury verdict, inadequate notice to the state class action members, and the substantial question of whether this court would have exercised supplemental jurisdiction over the state law claims created formal procedural barriers preventing the Plaintiffs from litigating both their class action state law claims and federal FLSA claims together in one lawsuit. The Plaintiffs' objections hold little weight. First, as discussed in Section III-E, supra, the numerosity requirement for class action certification in a federal forum does not bar the Plaintiffs from bringing their claims in one action. Plaintiffs have provided no evidence or authorities to suggest that this court would have denied class certification based on a failure to meet the numerosity requirement. Second, that a plaintiff who files in state court may take advantage of the unique non-unanimous jury rule provided by the Oregon Constitution is of no consequence to whether or not Plaintiffs could have fully and fairly litigated their state and federal claims together. Third, the Plaintiffs' claim that binding the parties to the state class action would violate their due process rights since they did not receive proper notice that final judgment might preclude their federal claims is unpersuasive. Finally, supplemental jurisdiction would have applied to the state claims if the Plaintiffs had brought all of their claims in one suit. There is nothing about the facts or legal theories involved in either action that are unique or extraordinary such as to create an exception. The Plaintiffs have provided no opinions from this district, much less this court, that support their suggestion that supplemental jurisdiction might not have been exercised. Accordingly, the Defendants' Motion is granted. A full-text copy of the District Court's February 25, 2019 Opinion and Order is available at http://tinyurl.com/y4vgold4from Leagle.com. Nancy Allison, both in her individual capacity and, in addition, as a collective action on behalf of others similarly situated, Holly Burney, both in her individual capacity and, in addition, as a collective action on behalf of others similarly situated, Rebecca Elroy, Teal Garrels, Elizabeth McElligott, Bradford Bohrer, Tiffany Cheri Cordeiro, Camille Titus, Nate Hillenkamp, True Name:, Mark MacMinn, Beth Harding, Suzanne Latham, Nicholaus Petersen, also known as Nic Petersen, Faith Holifield, Brandon Page, Eric Pavey, Nicola Breuer, Lauren Boden, Mary Bartlett, Deanna Ternes, Andrea Baiz-Escobedo & Tara Gower, Plaintiffs, represented by Jon M. Egan, Jon M. Egan, P.C. Scott Dolich, individual, Park Kitchen LLC, an Oregon limited liability company, Anna Josephson, individual & The Bent Brick, LLC, Defendants, represented by John Baird Dudrey -- john.dudrey@stoel.com -- Stoel Rives LLP & Karen L. O'Connor -- karen.oconnor@stoel.com -- Stoel Rives LLP. Anthony Motschenbacher, Interested Party, represented by Stephen P. Rickles, The Rickles Law Firm, PC. PASCHEN MANAGEMENT: Faces Morales Labor Suit in Ventura County -------------------------------------------------------------- An employment-related class action lawsuit has been filed against Paschen Management Corporation. The case is captioned as COBY MORALES, individually and on behalf of all others similarly situated, Plaintiff v. PASCHEN MANAGEMENT CORPORATION; and MCDONALDS USA LLC, Defendants, Case No. 56-2019-00525405-CU-OE-VTA (Cal. Super., Ventura Cty., Feb. 27, 2019). Paschen Management Corporation, doing business as Mcdonald's, operates as a fast food restaurant. The Company provides burger, sandwich, drink, salad, and chicken products. Mcdonald's serves customers in the State of California. [BN] PROSPERA HOTELS: Anton Alleges Mishandling of Credit Card Info -------------------------------------------------------------- A class action complaint has been filed against Prospera Hotels, Inc. for violations of the Fair and Accurate Credit Transactions Act amendment to the Fair Credit Reporting Act (FCRA). The case is captioned KELLY ANTON, individually and on behalf of others similarly situated, Plaintiff, v. PROSPERA HOTELS, INC. d/b/a HYATT HOUSE AT ANAHEIM RESORT/CONVENTION CENTER, a California corporation, Defendant, Case No. 5:19-cv-00534 (C.D. Cal., March 25, 2019). The Plaintiff alleges that the defendant knowingly or recklessly providing Plaintiff and Class members with electronically printed receipts that bear 10 of the 16 digits instead of the last five digits. The FCRA unequivocally states that no person who accepts credit cards or debit cards for the transaction of business shall print more than the last 5 digits of the card number or the expiration date upon any receipt provided to the cardholder at the point of the sale or transaction. By printing 10 of 16 digits, Defendant risked that Plaintiff's and Class members' credit card numbers would be compromised. Accordingly, Plaintiff seeks statutory penalties pursuant to 15 U.S.C. Sec. 1681n on behalf of herself and similarly situated Class members who paid for Defendant's services with a credit or debit card. Prospera Hotels, Inc is a California corporation with its principal place of business located at 333 City Boulevard West, Suite 1900, Orange, California 92868. It is a fully integrated hotel real estate and investment company providing expertise in development, operations, project management, Prospera’s portfolio consists of five hotels and resorts of various brands located throughout Anaheim, California. [BN] The Plaintiff is represented by: Annick M. Persinger, Esq. Tanya Koshy, Esq. TYCKO & ZAVAREEI LLP 1970 Broadway, Ste 1070 Oakland, CA 94612 Telephone: (510) 254-6808 E-mail: apersinger@tzlegal.com tkoshy@tzlegal.com - and – Andrew J. Shamis, Esq. Garrett O. Berg, Esq. SHAMIS & GENTILE, P.A. 14 NE 1st Avenue, Suite 400 Miami, FL 33132 Telephone: (305) 479-2299 E-mail: ashamis@shamisgentile.com gberg@shamisgentile.com - and – Scott Edelsberg, Esq. Jordan D. Utanski, Esq. EDELSBERG LAW, P.A. 2875 NE 191st Street, Suite 703 Aventura, FL 33180 Telephone: (305) 975-3320 E-mail: scott@edelsberglaw.com utanski@edelsberglaw.com PURDUE PHARMA: Cass County Sues Over Deceptive Marketing for Opioid ------------------------------------------------------------------- Cass County, North Dakota and the City of Grand Forks, North Dakota, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, v. Purdue Pharma L.P., The Purdue Frederick Company, Inc., Purdue Pharmaceutical Products L.P., Purdue Products L.P., Rhodes Pharmaceuticals L.P., Richard S. Sackler, Jonathan D. Sackler, Mortimer D.A. Sackler, Kathe A. Sackler, Ilene Sackler Lefcourt, Beverly Sackler, Theresa Sackler, David A. Sackler, Trust for the Benefit of Members of the Raymond Sackler Family, Endo International plc, Endo Health Solutions Inc., Endo Pharmaceuticals, Inc., Par Pharmaceutical, Inc., Par Pharmaceutical Companies, Inc., Janssen Pharmaceuticals, Inc., Janssen Pharmaceutica, Inc. n/k/a Janssen Pharmaceuticals, Inc., Ortho- McNeil-Janssen Pharmaceuticals, Inc. n/k/a Janssen Pharmaceuticals, Inc., Teva Pharmaceutical Industries Ltd., Teva Pharmaceuticals USA, Inc., Cephalon, Inc., Allergan plc f/k/a Actavis plc, Allergan Finance LLC f/k/a Actavis, Inc. f/k/a Watson Pharmaceuticals, Inc., Watson Laboratories, Inc., Actavis LLC, Actavis Pharma, Inc. f/k/a Watson Pharma, Inc., Insys Therapeutics, Inc., Mallinckrodt plc, Mallinckrodt LLC, SpecGx LLC, Cardinal Health, Inc., McKesson Corporation, and AmerisourceBergen Corporation, Defendants, Case No. 3:19-cv-00055-DLH-ARS (D. N.D., March 26, 2019) arises from the opioid epidemic nuisance created by Defendants and seeks to recover damages incurred as a result of Defendants' actions and omissions. North Dakota, like many states across the country, is facing an unprecedented opioid addiction epidemic. In 2015, there were approximately 466,000 opioid prescriptions written (60 prescriptions per 100 people) in North Dakota. In 2016, the state's medical examiners reported 54 Opioid Related Overdose Deaths. The complaint asserts that drug manufacturers' deceptive marketing and sale of opioids to treat chronic pain is one of the main drivers of the opioid epidemic. Historically, prescription opioids had been used for short-term, post-surgical and trauma-related pain, and for palliative end-of-life care primarily in cancer patients. The prevailing and accurate understanding of the enormous risks and limited benefits of long-term opioid use constrained drug manufacturers' ability to drive sales. In order to decrease reasonable concerns about opioids and to maximize profits, opioid manufacturers, including defendants Purdue, the Sackler Defendants, Janssen, Endo, Cephalon, Insys, Mallinckrodt and Actavis ("Marketing Defendants") engaged in a concerted, coordinated strategy to shift the way in which doctors and patients think about pain and, specifically, to encourage the use of opioids to treat not just the relative few who suffer from acute post-surgical pain and end-stage cancer pain, but the masses who suffer from common chronic pain conditions. The Marketing Defendants deliberately conceived these strategies to create, and in fact did create, an entirely new "health care" narrative--one in which opioids are considered safe and effective for long-term use and any pain is aggressively treated regardless of the long-term costs, notes the complaint. The Marketing Defendants' intention was to normalize aggressive prescribing of opioids for various kinds of pain by downplaying the very real risks of opioids, especially the risk of addiction, and by exaggerating the benefits of use. False messages about the safety, addictiveness and efficacy were disseminated by infiltrating professional medical societies and crafting and influencing industry guidelines in order to disseminate false and deceptive pro-opioid communiques under the guise of science and truth, the complaint asserts. The Defendants were aware of the quantities and frequency with which those drugs were distributed to entities in and around Plaintiffs' areas. However, the Defendants persisted in failing to report suspicious sales as required by state and federal law. Their failure to follow the law significantly contributed to rising addiction and overdose rates in Plaintiffs' jurisdictions, says the complaint. Cass County is the most populous county in North Dakota, with a population of more than 175,000 people. It is home to the largest city in North Dakota, Fargo. Defendants are regularly engaged in the business of manufacturing and distributing prescription opioids, either directly or indirectly through third-party related entities, in this State.[BN] The Plaintiffs are represented by: Joseph A. Wetch, Jr., Esq. SERKLAND LAW FIRM 10 Roberts Street North Fargo, ND 58108 Phone: 701.232.8957 Email: jwetch@serklandlaw.com - and - AELISH M. BAIG, Esq. MATTHEW S. MELAMED, Esq. ROBBINS GELLER RUDMAN & DOWD LLP Post Montgomery Center One Montgomery Street, Suite 1800 San Francisco, CA 94104 Phone: 415.288.4545 Fax: 415.288.4534 Email: aelishb@rgrdlaw.com mmelamed@rgrdlaw.com - and - PAUL J. GELLER, Esq. MARK J. DEARMAN, Esq. DOROTHY P. ANTULLIS, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 120 East Palmetto Park Road, Suite 500 Boca Raton, FL 33432 Phone: 561.750.3000 Fax: 561.750.3364 Email: pgeller@rgrdlaw.com mdearman@rgrdlaw.com dantullis@rgrdlaw.com - and - THOMAS E. EGLER, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 655 West Broadway, Suite 1900 San Diego, CA 92101 Phone: 619.231.1058 Fax: 619.231.7423 Email: tome@rgrdlaw.com REPUBLIC SERVICES: Harris Alleges Violation under FLSA ------------------------------------------------------ A class action lawsuit has been filed against Republic Services Incorporated. The case is styled as Antoinette Harris and Jasmine Roebuck, individually and on behalf of all others similarly situated, Plaintiffs v. Republic Services Incorporated, Republic Services Customer Resource Center West LLC and Republic Services Customer Resource Center East LLC, Defendants, Case No. 2:19-cv-01891-JJT (D. Ariz., March 21, 2019). The docket of the lawsuit states the case type as Fair Labor Standards Act. Republic Services, Inc is the second largest provider of non-hazardous solid waste collection, transfer, disposal, recycling, and energy services in the United States, as measured by revenue.[BN] The Plaintiffs are represented by: Austin Winters Anderson, Esq. Anderson2X PLLC 819 N Upper Broadway Corpus Christi, TX 78401 Tel: (361) 452-1279 Fax: (361) 452-1284 Email: austin@a2xlaw.com - and - Corey R Feltre, Esq. Lubin & Enoch PC 349 N 4th Ave. Phoenix, AZ 85003 Tel: (602) 234-0008 Fax: (602) 626-3586 Email: corey@lubinandenoch.com - and - Nicholas Jason Enoch, Esq. Lubin & Enoch PC 349 N 4th Ave Phoenix, AZ 85003 Tel: (602) 234-0008 Fax: (602) 626-3586 Email: nick@lubinandenoch.com - and - Stanley Lubin, Esq. Lubin & Enoch PC 349 N 4th Ave Phoenix, AZ 85003 Tel: (602) 234-0008 Fax: (602) 626-3586 Email: stan@lubinandenoch.com RESTORATION ROBOTICS: Continues to Defend Securities Suit in Cal. ----------------------------------------------------------------- Restoration Robotics, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on March 20, 2019, for the fiscal year ended December 31, 2018, that the company continues to defend a class action lawsuit entitled, In re Restoration Robotics, Inc. Securities Litigation. On May 23, 2018, a putative shareholder class action complaint was filed in Superior Court of the State of California, County of San Mateo (the "Superior Court"), captioned Wong v. Restoration Robotics, Inc., et al., No. 18CIV02609. On June 21, 2018 and June 28, 2018, two putative class action complaints were filed in the United States District Court for the Northern District of California, captioned Guerrini v. Restoration Robotics, Inc., et al., No. 5:18-cv-03712-EJD and Yzeiraj v. Restoration Robotics, Inc., et al., No. 5:18-cv-03883-BLF, respectively. On July 24, 2018, the U.S. Northern District Court related the Guerrini and Yzeiraj actions and reassigned the Yzeiraj action to Judge Edward J. Davila. The Wong and Guerrini complaints names the company as defendants, and certain of its current and former executive officers and directors, certain of the company's venture capital investors and the underwriters in the company's initial public offering (IPO). The Yzeiraj complaint names the company as defendants and certain of its current and former executive officers and directors. The Wong complaint asserts claims under Sections 11, 12(a)(2) and 15 of the Securities Act of 1933, or the Securities Act. The Guerrini and Yzeiraj complaints assert claims under Sections 11 and 15 of the Securities Act. The complaints all allege, among other things, that our Registration Statement filed with the SEC on September 1, 2017 and the Prospectus filed with the SEC on October 13, 2017 in connection with the company's IPO were inaccurate and misleading, contained untrue statements of material facts, omitted to state other facts necessary to make the statements made not misleading and omitted to state material facts required to be stated therein. The complaints seek unspecified monetary damages, other equitable relief and attorneys' fees and costs. On August 8, 2018, the company, along with certain of its current and former executive officers and directors, filed a motion to dismiss the Wong complaint based on the forum selection clause designating the federal district courts as the exclusive forum for claims arising under the Securities Act contained in our Amended and Restated Certificate of Incorporation, and which asked the court in the alternative to stay the Wong action. Also, on August 8, 2018, the venture capital investor and underwriters' defendants in the Wong action filed demurrers to the Wong complaint, and the company, along with certain of the company's current and former executive officers and directors, joined in the venture capital investor defendants' demurrer. A hearing on the company's motion to dismiss and the demurrers to the Wong complaint was held on October 24, 2018. The company is unable to predict the date on which the Superior Court will issue any decision at this time. On October 2, 2018, the U.S. Northern District Court granted a Motion for Consolidation of Related Actions, Appointment as Lead Plaintiff and Approval of Lead Counsel filed by Plaintiff Edgardo Guerrini, which consolidated the Guerrini and Yzeiraj actions under the caption In re Restoration Robotics, Inc. Securities Litigation, Case No. 5:18-cv-03712-EJD. The U.S. Northern District Court held an initial hearing on January 24, 2019. Restoration Robotics said, "We believe that these lawsuits are without merit and we intend to vigorously defend against these claims." Restoration Robotics, Inc., a medical device company, develops and commercializes image-guided robotic systems in the United States and internationally. The company was founded in 2002 and is headquartered in San Jose, California. RIP CURL INC: Traynor Files ADA Suit in S.D. New York ----------------------------------------------------- A class action lawsuit has been filed against Rip Curl, Inc. The case is styled as Yaseen Traynor, on behalf of himself and all others similarly situated, Plaintiff v. Rip Curl, Inc., Defendants, Case No. 1:19-cv-02701 (S.D. N.Y., Mar. 26, 2019). The Plaintiff filed the case under the Americans with Disabilities Act. Rip Curl is an Australian designer, manufacturer, and retailer of surfing sportswear.[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 RUNNING WAREHOUSE: Traynor Files Class Action Under ADA ------------------------------------------------------- A class action lawsuit has been filed against Running Warehouse, LLC. The case is styled as Yaseen Traynor, on behalf of himself and all others similarly situated, Plaintiff v. Running Warehouse, LLC, Defendants, Case No. 1:19-cv-02707 (S.D. N.Y., Mar. 26, 2019). The Plaintiff filed the case under the Americans with Disabilities Act. Running Warehouse, LLC is a privately held company in San Luis Obispo, CA and is a Single Location business, categorized under Wholesale Shoes.[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 SHERWOOD FORD: Alberta Court Tosses Class Action Over Commissions ----------------------------------------------------------------- Timothy Froese, Esq. -- tfroese@mccarthy.ca -- and Kyle McMillan, Esq., -- kmcmillan@mccarthy.ca -- of McCarthy Tétrault LLP, in an article for Mondaq, reports that the Alberta Court of Queen's Bench recently struck a proposed class proceeding as an abuse of process, refused to allow the proposed representative plaintiff (a non-lawyer) to represent the proposed class, declared the plaintiff to be a vexatious litigant, and restricted his future access to the Court. In Biley v Sherwood Ford Limited, 2019 ABQB 95, the Court considered three separate actions by a self-represented plaintiff, including a $11 million proposed class action. Justice Kendell rejected the plaintiff's argument that "[s]elf represented class actions may be the only realistic way this large class of vulnerable people receives justice" and held that the class action was "futile, abusive litigation" and the plaintiff was a "busybody" litigant with no legitimate interest in the proposed class action. The plaintiff launched the proposed class action against his former employer, an Edmonton car dealership, alleging that it had unlawfully withheld commissions from its sales employees, including himself. However, he had already commenced an individual civil claim against his former employer based on the same alleged conduct. This led the Court to find that the plaintiff had no legitimate interest in the class action, and it was merely "duplicate collateral attack litigation" and evidence of the plaintiff's abusive intent. Also problematic was the plaintiff's attempt to represent other class members, despite being self-represented, as section 106 of the Legal Profession Act (Alberta) prohibits non-lawyers from engaging in the practice of law. The plaintiff attempted to rely on exceptions in section 106(2) that allow a person to represent themselves in court on matters in which they are a party. The Court followed the 2012 Alberta Queen's Bench case of Champagne v Sidorky and rejected the plaintiff's argument, noting that section 106(2) does not allow a non-lawyer to represent any other person, even if the non-lawyer is also a party in the same matter. Interestingly, the plaintiff seems to have been aware of the novelty of his self-representative-plaintiff application because he also argued that self-representation on behalf of a class was a necessary step in the evolution of the legal system in order to provide adequate access to justice. The plaintiff attempted to frame his class action suit as "Public Interest Litigation", citing Canada (Attorney General) v Downtown Eastside Sex Workers United Against Violence Society. Justice Kendell discussed the numerous problems with this approach, including that the class action was based on claims in tort and contract rather than constitutional challenges and that the class members could commence their own individual claims if they felt that the defendant had withheld commissions. The Court took into consideration the entire suite of litigation – including an earlier class action against another car dealership - in its detailed analysis of abusive litigation and vexatious litigants. It struck the class action under Rule 3.68 of the Alberta Rules of Court and used its inherent jurisdiction to declare the proposed representative plaintiff to be a vexatious litigant, imposing broad restrictions on his future access to Alberta courts. This case not only confirms that self-represented litigants cannot be representative plaintiffs in class actions, but underscores the importance of guarding against the misuse of class proceedings. The procedural mechanisms of class actions are intended to enhance judicial efficiency and access to justice, not to be abused for vexatious purposes. [GN] SI FINANCIAL: Faces Parshall Class Action in Baltimore ------------------------------------------------------ SI Financial Group, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on March 19, 2019, for the fiscal year ended December 31, 2018, that the company has been named as a defendant in a putative class action lawsuit in the Circuit Court for Baltimore County entitled, Parshall v. Mark Alliod, et al. On February 20, 2019, one purported SI Financial stockholder filed a putative class action lawsuit against SI Financial, Berkshire Hills and the members of the SI Financial board of directors in the Circuit Court for Baltimore County, captioned Parshall v. Mark Alliod, et al., Docket No. C-03-CV-19-000124 (the "Complaint"). The plaintiff, on behalf of himself and similarly-situated SI Financial stockholders, generally alleges that the defendants breached their fiduciary duties to SI Financial and its stockholders in connection with a Merger Agreement. Berkshire Hills Bancorp, Inc. (NYSE: BHLB) ("Berkshire") and SI Financial Group, Inc. (NASDAQ: SIFI) ("SIFI") announced in December the signing of a definitive merger agreement under which Berkshire will acquire SIFI and its subsidiary, Savings Institute Bank and Trust Company ("Savings Institute"), in an all-stock transaction valued at $180 million based on Berkshire's stock price as of the close of business on December 10, 2018. On April 2, 2019, SI Financial announced that its stockholders approved the merger deal at a meeting of the Company's stockholders held on April 2. The stockholders of the Company also approved the non-binding proposal with respect to the merger-related compensation payable to the executive officers of the Company. Subject to the receipt of the required regulatory approvals and the satisfaction of customary closing conditions, the parties expect to close the merger in the second quarter of 2019. The Complaint alleges that the defendants failed to secure adequate value for SI Financial stockholders in connection with the Merger and that the registration statement filed with the SEC on February 4, 2019 contains materially incomplete information regarding the Merger. The plaintiff seeks injunctive relief, rescission of the Merger or rescissory damages (if the Merger is consummated), other unspecified damages, and an award of attorneys' fees and expenses. SI Financial Group, Inc. operates as the holding company for Savings Institute Bank and Trust Company that provides various financial services to consumers and businesses. SI Financial Group, Inc. was founded in 1842 and is headquartered in Willimantic, Connecticut. SOHO HOTEL: Lopez Files ADA Suit in S.D. New York ------------------------------------------------- A class action lawsuit has been filed against SoHo Hotel Owner, LLC d/b/a 11 Howard Hotel. The case is styled as Victor Lopez, On Behalf of Himself And All Other Persons Similarly Situated, Plaintiff v. SoHo Hotel Owner, LLC d/b/a 11 Howard Hotel, ADR Provider, Case No. 1:19-cv-02719 (S.D. N.Y., Mar. 26, 2019). The Plaintiff filed the case under the Americans with Disabilities Act. Soho Hotel Owner LLC owns hotel and restaurant properties. The company was incorporated in 2014 and is headquartered in New York, New York.[BN] The Plaintiff is represented by: Jeffrey M. Gottlieb, Esq. 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (212) 228-9795 Fax: (212) 982-6284 Email: nyjg@aol.com SOUTHERN OHIO: Howard Seeks Unpaid Minimum, Overtime Wages ---------------------------------------------------------- Nathan Howard, On behalf of himself and those similarly situated, Plaintiff, v. Southern Ohio Pizza, Inc.; Louis Metro; and Karen Metro, Defendants, Case No. 1:19-cv-00222-TSB (S.D. Ohio, March 26, 2019) seeks appropriate monetary, declaratory, and equitable relief based on the Defendants' willful failure to compensate Plaintiff and similarly situated individuals with minimum wages and overtime wages as required by the Fair Labor Standards Act ("FLSA"), the Ohio Constitution, and the Ohio Minimum Wage Fairness Act ("OMFWSA"). The Defendants repeatedly and willfully violated the Fair Labor Standards Act, the OMFWSA, Section 34a, and the Ohio Prompt Pay Act by failing to adequately reimburse delivery drivers for their delivery-related expenses, thereby failing to pay delivery drivers the legally mandated minimum wage wages for all hours worked, asserts the complaint. All delivery drivers at the Wright Bros. stores, including Plaintiff, have been subject to the same or similar employment policies and practices, including policies and practices with respect to wages and reimbursement for work-related expenses, says the complaint. Plaintiff has worked at Southern Ohio Domino's for approximately 5 years in Monroe, Ohio. Defendants operate approximately 20 Domino's Pizza franchises in Ohio and Indiana.[BN] The Plaintiff is represented by: Andrew R. Biller, Esq. Biller & Kimble, LLC Of Counsel to Markovits, Stock & DeMarco, LLC 4200 Regent Street, Suite 200 Columbus, OH 43219 Phone: (614) 604-8759 Facsimile: (614) 340-4620 Email: abiller@billerkimble.com - and - Andrew P. Kimble, Esq. Philip J. Krzeski, Esq. Biller & Kimble, LLC Of Counsel to Markovits, Stock & DeMarco, LLC 3825 Edwards Road, Suite 650 Cincinnati, OH 45209 Phone: (513) 715-8711 Facsimile: (614) 340-4620 Web: www.billerkimble.com Email: akimble@billerkimble.com pkrzeski@billerkimble.com STATE FARM: Faces Abraham Suit over PIP Claim --------------------------------------------- A class action complaint has been filed against State Farm Mutual Automobile Insurance over a Personal Injury Protection (PIP) claim. The case is captioned ANNA ABRAHAM, MARK ANDERSON, RONALD DRAKE, LUTYSHIA EMERSON, LA VERNE GALLANT, EDGELL JUSTIN, and CYNTHIA OLIVER, Plaintiffs, V. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant, Case No. 2019CH03821 (Ill. Cir, Cook County, March 25, 2019). This complaint seeks class-wide declaratory relief and class-wide injunctive relief for defendant State Farm Mutual Automobile Insurance Company's failure to comply with a uniform legal standard under which the defendant must provide to its insurance policy holders a meaningful written explanation, within the statutory 30-day deadline of each affected state's Personal Injury Protection (PIP) statute, of (i) its inability or purported inability to complete its investigation of a given PIP claim within that statutory 30-day deadline, and (ii) its withholding of payment of benefits for a given PIP claim within that same statutory 30-day deadline. Defendant State Farm Mutual Automobile Insurance Company is an Illinois corporation with a principal place of business at One State Farm Plaza, Bloomington, IL 61710. It is engaged in the business of insurance, and regularly sells automobile insurance (including PIP coverage) within the states of Delaware, Florida, Hawaii, Kansas, Kentucky, Massachusetts, Michigan, Minnesota, New York, North Dakota, Oregon, Pennsylvania, Texas, and Utah. [BN] The Plaintiffs are represented by: Adrienne W. Brown Chan, Esq. STEVENS & CHAN, CHARTERED 200 West Superior Street, Suite 410 Chicago, IL 60654 Telephone: (312)786-2244 - and - John S. Spadaro, Esq. JOHN SHEEHAN SPADARO, LLC 54 Liborio Lane Smyrna, DE 19977 Telephone: (302)235-7745 SUPERIOR ENERGY: Womack Seeks OT Pay for Flowback Operators ----------------------------------------------------------- AARON WOMACK, individually and on behalf of all others similarly situated, the Plaintiff, v. SUPERIOR ENERGY SERVICES-NORTH AMERICA SERVICES, INC. d/b/a INTEGRATED PRODUCTION SERVICES, INC., the Defendant, Case No. 7:19-cv-00074 (W.D. Tex., March 18, 2019), seeks to recover unpaid overtime wages and other damages from the Defendant under the Fair Labor Standards Act. According to the complaint, IPS utilized the services of Flowback Operators like Womack to work on its behalf. Many of the Flowback Operators IPS employed, including Womack, were staffed to IPS by third-party entities. Womack, and the other Flowback Operators like him who worked for, or on behalf of IPS, regularly worked more than 40 hours a week. But IPS did not pay Womack or the other Flowback Operators overtime. . Instead of paying overtime as required by the FLSA, IPS improperly classified these workers as independent contractors and paid them a daily rate with no overtime compensation in violation of the FLSA. From approximately September 2017 until February 2018, Womack worked for IPS as a Flowback Operator, the lawsuit says. IPS is North America's leading provider of coiled tubing, nitrogen, and plunger lift services and products with an operational presence in every basin around the United States.[BN] Attorneys for the Plaintiff: Andrew W. Dunlap, Esq. Michael A. Josephson, Esq. JOSEPHSON DUNLAP 11 Greenway Plaza, Suite 3050 Houston, TX 77046 Telephone: 713 352-1100 Facsimile: 713-352-3300 E-mail: mjosephson@mybackwages.com adunlap@mybackwages.com - and - Richard J. (Rex) Burch, Esq. BRUCKNER BURCH PLLC 8 Greenway Plaza, Suite 1500 Houston, TX 77046 Telephone: 713 877-8788 Facsimile: 713 877-8065 E-mail: rburch@brucknerburch.com SYNEOS HEALTH: Continues to Defend Vaitkuviene Class Suit --------------------------------------------------------- Syneos Health, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on March 18, 2019, for the fiscal year ended December 31, 2018, that the company continues to defend a class action lawsuit entitled, Vaitkuviene v. Syneos Health, Inc., et al. On December 1, 2017, the first of two virtually identical actions alleging federal securities law claims was filed against the company and certain of its officers on behalf of a putative class of the company's shareholders. The first action, captioned Bermudez v. INC Research, Inc., et al, No. 17-09457 (S.D.N.Y.), names as defendants the company, Michael Bell, Alistair MacDonald, Michael Gilbertini, and Gregory S. Rush (the "Bermudez action"), and the second action, Vaitkuviene v. Syneos Health, Inc., et al, No. 18-0029 (E.D.N.C.), filed on January 25, 2018, names as defendants the company, Alistair MacDonald, and Gregory S. Rush (the "Vaitkuviene action"). Both complaints allege similar claims under Section 10(b) and Section 20(a) of the Securities Exchange Act of 1934 on behalf of a putative class of purchasers of the company's common stock between May 10, 2017 and November 8, 2017 and November 9, 2017. The complaints allege that the company published inaccurate or incomplete information regarding, among other things, the financial performance and business outlook for inVentiv's business prior to the Merger and with respect to the combined company following the Merger. On January 30, 2018, two alleged shareholders separately filed motions seeking to be appointed lead plaintiff and approving the selection of lead counsel. These motions remain pending. On March 30, 2018, Plaintiff Bermudez filed a notice of voluntary dismissal of the Bermudez action, without prejudice, and as to all defendants. On May 29, 2018, the Court in the Vaitkuviene action appointed the San Antonio Fire & Police Pension Fund and El Paso Firemen & Policemen's Pension Fund as Lead Plaintiffs and, on June 7, 2018, the Court entered a schedule providing for, among other things, Lead Plaintiffs to file an amended complaint by July 23, 2018 (later extended to July 30, 2018). Lead Plaintiffs filed their amended complaint on July 30, 2018, which also includes a claim against the same defendants listed above, as well as each member of the board of directors at the time of the INC Research-inVentiv Health merger vote in July 2017, contending that the inVentiv merger proxy was misleading under Section 14(a) of the Act. Lead Plaintiffs seek, among other things, orders (i) declaring that the lawsuit is a proper class action and (ii) awarding compensatory damages in an amount to be proven at trial, including interest thereon, and reasonable costs and expenses incurred in this action, including attorneys' fees and expert fees, to Lead Plaintiffs and other class members. Defendants filed a Motion to Dismiss Plaintiffs' Amended Complaint on September 20, 2018. Lead Plaintiffs filed a Response in Opposition to such motion on November 21, 2018, and Defendants filed a Reply to such response on December 5, 2018. Syneos said, "We and the other defendants deny the allegations in these complaints and intend to defend vigorously against these claims." Syneos Health, Inc. operates as an integrated biopharmaceutical solutions company in North America, Europe, the Middle East, Africa, the Asia-Pacific, and Latin America. It operates through two segments, Clinical Solutions and Commercial Solutions. Syneos Health, Inc. was incorporated in 2010 and is headquartered in Morrisville, North Carolina. TEMPOE LLC: Deborah Rule Sues over Unwanted Phone Calls ------------------------------------------------------- DEBORAH RULE, individually and on behalf of all others similarly situated, the Plaintiff, vs. TEMPOE, LLC d/b/a WHY NOT LEASE IT, a Delaware limited liability company, the Defendant, Case No. 1:19-at-00201 (E.D. Cal., March 19, 2019), seeks to stop Defendant's practice of placing prerecorded calls and calls using an "automatic telephone dialing system" to the cellular telephones of consumers nationwide without their prior express consent; enjoin the Defendant from continuing to place prerecorded and autodialed telephone calls to consumers who did not provide their prior express consent to receive them; and obtain redress for all persons injured by Defendant's conduct. The case addresses Tempoe's repeated pattern of practice of calling consumers on their cell phone using prerecorded calls and an autodialer who have no direct relationship with Tempoe. Tempoe conducted a wide-scale debt-collection and information-collection campaign that features the repeated making of unwanted autodialed phone calls to consumers' cellular telephones without consent, all in violation of the Telephone Consumer Protection Act. According to the complaint, by placing prerecorded and autodialed calls, the Defendant collectively caused Plaintiff and the members of the Classes actual harm and cognizable legal injury. Furthermore, Defendant made the calls knowing they interfered with Plaintiff's and the other members of the Classes' use and enjoyment of, and the ability to access their cellphones, including the related data, software, and hardware components.[BN] Attorneys for the Plaintiff: Amanda Benedict, Esq. LAW OFFICE OF AMANDA BENEDICT 7710 Hazard Center Drive, Ste E104 San Diego, CA 92108 Telephone: (760) 822-1911 E-mail: amanda@amandabenedict.com - and - Avi R. Kaufman, Esq. KAUFMAN P.A. 400 NW 26 th Street Miami, FL 33127 Telephone: (305) 469-5881 E-mail: kaufman@kaufmanpa.com - and - Stefan Coleman, Esq. 201 S. Biscayne Blvd, 28 th Floor Miami, Fl 33131 Telephone: (877) 333-9427 Facsimile: (888) 498-8946 E-mail: Law@StefanColeman.com TESLA: No Class Action Yet Over Recent EV Price Cut --------------------------------------------------- Luna Lin, writing for KrASIA, reports that Chinese Tesla owners who have reportedly been exploring a class action lawsuit against the premium electronic carmaker now say they don't plan to take immediate legal action over the recent price cut. Tesla's move to woo more Chinese buyers by drastically cutting prices of its premium electronic vehicles (EV) was met with dismay from those who purchased their Teslas shortly before the price cut. Liao Zongyi, a Tesla owner in Changsha bought his Model X in late February and told KrASIA he lost RMB 200,000 (US$29,742) because he bought his car just three days before it became cheaper. But he and other Tesla owners with a similar fate are now distancing themselves from the idea to file a class action suit against Tesla. "We have been in discussion with the dealers, and there's no plan for class action yet," Liao said in a phone interview with KrASIA on March 11. "We might have some news tomorrow," he added, hinting at a possible solution between Tesla and the disgruntled Chinese owners. A group of Tesla owners reportedly staged a mini-protest in front of a Tesla store in Changsha. [GN] TETRAPHASE PHARMACEUTICALS: Bid to Transfer IGNITE3 Suit Pending ---------------------------------------------------------------- In the Ignite3-related class action suit against Tetraphase Pharmaceuticals, Inc., the defendants' request to transfer the case to the U.S. District Court for the District of Massachusetts remains pending, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2018. The Company said, "In July 2018, a purported securities class action lawsuit was filed against us, our chief executive officer, our chief scientific officer and the underwriters of our July 2017 public offering, in the United States District Court for the Southern District of New York. The complaint is brought on behalf of an alleged class of those who purchased our securities pursuant and/or traceable to our July and August 2017 public offering and those who purchased our securities between March 8, 2017 and February 13, 2018. The complaint purports to allege claims arising under Sections 10 and 20 of the Exchange Act of 1934, as amended, and Sections 11 and 15 of the Securities Act of 1933, as amended. The complaint generally alleges that the defendants violated the federal securities laws by, among other things, making material misstatements or omissions concerning IGNITE3. The complaint seeks, among other relief, unspecified compensatory damages, attorneys' fees, and costs. The defendants have moved to transfer the lawsuit to the United States District Court for the District of Massachusetts. We believe we have valid defenses against these claims, and will engage in a vigorous defense of such litigation." Tetraphase Pharmaceuticals, Inc., a clinical-stage biopharmaceutical company, develops various antibiotics for the treatment of serious and life-threatening multidrug-resistant infections. The company was founded in 2006 and is headquartered in Watertown, Massachusetts. THOMAS DART: Hacker's Class Certification Bid Denied ---------------------------------------------------- In the class action lawsuit Gerald Hacker, the Plaintiff, v. Thomas Dart, et al., the Defendants, Case No. 1:17-cv-04282 (N.D. Ill.), the Hon. Judge John Z. Lee entered an order denying Hacker's Rule 23 motion for class certification. According to the docket entry made by the Clerk on March 18, 2019, a status hearing is set for April 18, 2019 at 9:15 a.m.[CC] TRANSGENOMIC INC: Securities Class Action Dismissal Reversed ------------------------------------------------------------ Shearman & Sterling LLP, in an article for Lexology, reports that on March 1, 2019, the United States Court of Appeals for the Eighth Circuit reversed the dismissal of a class action arising from the merger of a biotechnical company ("Biotech Company") and a cancer-diagnostics company ("Diagnostics Company") against the Biotech Company, its former president, and the company that was formed by the merger ("Post-Merger Company"). Campbell v. Transgenomic, Inc., No. 18-2198, 2019 WL 983676 (8th Cir. Mar. 1, 2019). Plaintiffs, former shareholders of the Biotech Company, allege that defendants violated Sections 14(a) and 20(a) of the Securities Exchange Act ("Exchange Act"), and Rule 14a-9 promulgated thereunder, by providing a materially false and misleading proxy statement to shareholders that failed to accurately convey the value of the Diagnostics Company. Judge John M. Gerrard of the United States District Court for the District of Nebraska dismissed the case and held that the alleged misstatements and omissions were immaterial as a matter of law. Plaintiffs appealed and the Eighth Circuit reversed the judgment, holding that whether the alleged misstatements and omissions were material was a question for the trier of fact. The Eighth Circuit first considered the allegations that omissions in the proxy statement were materially misleading. Plaintiffs alleged that the proxy statement failed to provide the Diagnostics Company's projected net income and loss as well as certain expenses that could have allowed investors to independently calculate the net income and loss. The District Court found that the alleged omissions were not materially misleading because there was no obligation to disclose all financial figures, and the information already provided was done so "honestly." The Eighth Circuit disagreed, noting that net income and loss can be particularly valuable information for investors and that the omission of this information here may have cast the Diagnostics Company "in a false light that was materially misleading." Furthermore, the disclosure of the omitted figures could have "significantly altered the total mix" of information available to shareholders. The Court held that the question of the alleged omissions' materiality was improperly resolved as a matter of law. The Eighth Circuit also considered the allegations that certain statements in the proxy statement were materially misleading. Plaintiffs alleged that defendants ambiguously labeled a revenue table in a way that caused investors to believe it was in reference to the Diagnostics Company's revenue, thus suggesting an inflated value. Defendants argued that a reasonable investor would be able to infer that the table referred to the Post-Merger Company based on context and references to other financial data in the proxy statement. The Eighth Circuit held that whether the allegedly ambiguous labeling was materially misleading could not be determined as a matter of law and would have to be addressed by a trier of fact. Having found that plaintiffs adequately pleaded a primary violation under Section 14(a) of the Exchange Act, the Eighth Circuit held that plaintiffs' allegations under Section 20(a) against the former president of the Diagnostics Company were also sufficient, and reversed the dismissal of that claim. [GN] U.S. XPRESS: Green Files Suit Over Unlawful Wage Deductions ----------------------------------------------------------- APRIL GREEN, on behalf of herself and those similarly situated, Plaintiff, v. U.S. Xpress Enterprises, Inc., U.S. Xpress, Inc., and U.S. Xpress Leasing, Inc., and John Does 1-20, Defendants, Case No. 1:19-cv-00092 (E.D. Tenn., March 26, 2019) seeks to redress the Defendants' violations of the Fair Labor Standards Act ("FLSA"). The complaint asserts that the Defendants erroneously designated Plaintiff and those similarly situated as independent contractors and unlawfully deducted from and withheld portions of the wages owed to them. Specifically, the Defendants required Plaintiff and those similarly situated to cover the costs of the Defendants, intentionally reducing their wages below the minimum wage, says the complaint. Plaintiff worked for Defendants as a commercial truck driver from in or around September of 2018 through in or around January of 2019. Defendants are companies engaged in the business of hauling and delivery of freight by truck.[BN] The Plaintiff is represented by: Justin L. Swidler, Esq. SWARTZ SWIDLER, LLC 1101 Kings Highway North, Suite 402 Cherry Hill, NJ 08034 Phone: (856) 685-7420 Fax: (856) 685-7417 UBER TECHNOLOGIES: Settles Driver Misclassification Suit for $20MM ------------------------------------------------------------------ Joel Rosenblatt, writing for Boston Globe, reports that Uber Technologies Inc. will pay $20 million to settle California lawsuits challenging the company's classification of drivers as independent contractors, and not employees owed the benefits of traditional employment. Resolution of the long-standing fight over benefits and pay comes as Uber is preparing for its initial public offering later this year. The litigation attacked the ride-sharing company's business model of treating its drivers as contractors to avoid the costs of paying a minimum wage, overtime, sick leave and health insurance. The cases turned on whether drivers were essentially forced by their contracts to resolve any conflicts one-on-one, behind the closed doors of private arbitration and forbidden to join forces in class-action lawsuits. Drivers argued Uber made it onerous for them to opt-out of the arbitration provisions. [GN] UNIFIN INC: Harper Asserts FDCPA Class Action in Tennessee ---------------------------------------------------------- A class action lawsuit has been filed against Unifin, Inc. The case is styled as Jeffrey Harper, individually and on behalf of all other similarly situated, Plaintiff v. Unifin, Inc., Jefferson Capital Systems, Inc., John Does 1-25, Defendants, Case No. 3:19-cv-00101 (E.D. Tenn., Mar. 26, 2019). The Plaintiff filed the case under the Fair Debt Collection Practices Act. Unifin, Inc. is a full service BPO and Accounts Receivable Management firm. Jefferson Capital Systems, LLC provides payment rewards, bankruptcy collection, and debt collection services.[BN] The Plaintiff is represented by: Yaakov Saks, Esq. Stein Saks, PLLC 285 Passaic Street Hackensack, NJ 07601 Phone: (201) 282-6500 ext 101 Fax: (201) 282-6501 Email: ysaks@steinsakslegal.com VISIONSTREAM: Line Workers' Lawyers Prepare to File Class Action ---------------------------------------------------------------- Alex Ashton, writing for RNZ, reports that Line workers are being told they have a strong case for proving they are employees, not contractors, and could be in for a windfall. They are preparing a class action against Chorus subcontractor Visionstream, saying the company's system is driving them to bankruptcy. Line workers say they feel bullied and exploited. Visionstream pays a set-price for each job, which workers said was well below what it should be. Some weeks they worked 60 hours but did not earn enough to cover their costs. They could even have pay deducted if there are any problems with their work down the line. At the same time, their contracts stipulated they be available from 7 in the morning, until 7 at night, seven days a week. A worker -- who was leaving the industry in his 50s because of Visionstream -- painted a grim picture. "I have hatred. I find them bullies. No heart, no soul, no feelings, no sense of decency or values. As far as I'm concerned, they've destroyed me." Law firm Shine Lawyers suspected thousands of workers could be owed money and encouraged them to come forward to join the action. Employment lawyer Barbara Buckett said it was a strong case. "They're wearing Chorus livery, they're directed where to work, their work is allocated, and it's controlled by Chorus," she said. "I think it's got legs in it." But she added that the devil would be in the detail. "I think that the real issue's going to come back to what we call the fundamental legal test - whether they're free to go and work somewhere else. "It looks as though they're not." Another employment lawyer Danny Gelb agreed the line workers had a strong case. He said their lack of control over hours worked was an argument for being classed as employees. But Mr Gelb said they could hypothetically earn more or less depending on how fast they completed a job, which was an argument for being contractors. He said if they proved themselves to be employees, they could be in for a windfall. "Potentially holiday pay . . . each worker's entitled to four weeks paid holiday pay each year, whereas a contractor's not entitled to any holiday pay. "As a contractor, there's no minimum wage as such -- but being an employee, an employer must pay minimum wage." The telecommunication's organiser for E tū union, Joe Gallagher, said members were keen to join the class action. But he said many were scared to come forward - despite being in dire situations. "Some of these guys can work 225 hours a month, and the primary contractor can deduct money from their account, some of them can end up with $80 a month. "They invest in all this equipment on these promises of growing a business, but it doesn't materialise. This guy I was talking to is [also] working as a chef in a restaurant." Chorus, which contracted Visionstream, said it heard the contractors woes, and separate complaints made to the Labour Inspectorate. It was reviewing its contracting model and said changes were likely. "It's in everybody's best interests that people feel like they're getting a fair go. We want a highly engaged and highly skilled workforce. "Without meaning to pre-empt the probable outcomes of the independent review that we've commissioned, I think we can probably anticipate that there's likely to be some structural changes." Visionstream had not responded to repeated requests for comment. [GN] WAWA INC: Cunningham et al. Seek to Certify Classes --------------------------------------------------- In the case, JOHN J. CUNNINGHAM, DAVID CIUFFETELLI, BENJAMIN DIDONATO and JOHN RUCKI, JR., the Plaintiffs, vs. WAWA, INC., RETIREMENT PLANS COMMITTEE OF WAWA, INC., JARED G. CULOTTA, MICHAEL J. ECKHARDT, JAMES MOREY, CATHERINE PULOS, HOWARD B. STOECKEL, DOROTHY SWARTZ, RICHARD D. WOOD, JR., KEVIN WIGGINS and CHRISTOPHER D. WRIGHT, the Defendants, and WAWA, INC. EMPLOYEE STOCK OWNERSHIP PLAN, the Nominal Defendant, Case No. 2:18-cv-03355-PD (E.D. Pa.), the Plaintiffs move the Court for an order that Counts I-X be certified and maintained as a class action pursuant to Fed.R.Civ.P. Rule 23(a) and Rule 23(b)(1), (b)(2), or, alternatively, under Rule 23(b)(3). The case is a lawsuit brought under the Employee Retirement Income Security Act of 1974, against Defendants Wawa Inc., the Committee Defendants (consisting of the Retirement Plans Committee of Wawa, Inc. and its members Jared G. Culotta, Michael J. Eckhardt, James Morey, Catherine Pulos, and Dorothy Swartz) and the Trustee Defendants, (i.e. Richard D. Wood, Jr., Howard B. Stoeckel, and Christopher D. Wright). The Plaintiffs bring Counts I-IV, IX, and X as a class action pursuant to Fed. R. Civ. P. 23(a) and (b), on behalf of a Class consisting of: "All Participants in the Wawa, Inc. Employee Stock Ownership Plan ("Wawa ESOP") with account balances greater than $5,000.00 as of the date that they terminated employment whose accounts were liquidated on or after September 12, 2015 and the beneficiaries of such participants." Plaintiffs Ciuffetelli and Rucki bring Counts VI and VIII as a class action pursuant to Fed. R. Civ. P. 23(a) and (b), on behalf of the Terminated Pre-2014 Employee Subclass, which pursuant to the Parties' prior Stipulation as to Certain Class Certification Issues, is defined as: "All Participant members of the Class who were employed by Wawa and participated in the ESOP before January 1, 2014 and who terminated employment on or after January 1, 2015 except for Participants whose accounts were liquidated due to death, disability or a voluntary request for distribution, and the beneficiaries of such participants." Plaintiffs Cunningham and DiDonato bring Counts V, VI, VII and VIII as a class action pursuant to Fed. R. Civ. P. 23(a) and (b), on behalf of the Retired Employee Subclass, which pursuant to the Parties' prior Stipulation, is defined as: "All Participant members of the Class who Retired 1 between January 1, 2011 and December 31, 2014 except for Participants whose accounts were liquidated due to death, disability or a voluntary request for distribution, and the beneficiaries of such Participants." Excluded from the Class and the Subclasses are: (a) Defendant Trustees and members of the Defendant Committee and their immediate families the current officers and directors fo Defendant Wawa and their immediate families; (b) participants who were members of the Class in Pfeifer v. Wawa, No. 2:16-cv-00497-PD (E.D. Pa.); and (c) the legal representatives, successors, heirs, and assigns of any such excluded persons. Count I alleges that the Committee Defendants and the Trustee Defendants breached their fiduciary duties under ERISA by causing or permitting the forced sale of the Wawa stock in the ESOP accounts of Plaintiffs and the Class that was for less than fair market value and was not for adequate consideration. Count II alleges that Wawa and the Trustee Defendants engaged in prohibited transactions in violaton of ERISA because the Trustee Defendants failed to ensure that Wawa paid no less than fair market value for Wawa shares purchased by Wawa in the liquidation of the ESOP accounts of Plaintiffs and the Class and Wawa profited from those transcations. Count III alleges that the Trustee Defendants Wood and Stoeckel engaged in a prohibited transaction in violaton of ERISA because they dealt with the assets of the ESOP in their own interest, acted on behalf of the ESOP when their own interests were adverse to that of the ESOP and received consideration in connection with these transactions involving Plaintiffs and the Class. Count IV alleges that the Committee Defendants and the Trustee Defendants breached their fiduciary duties under ERISA in failing to act in accordance with the terms of the Plan in connection with the transfer and liquidation of the ESOP accounts of Plaintiffs and the Class. Count V claims that the Committee Defendants and Trustee Defendants breached their fiduciary duties under ERISA by making omissions or misrepresentations or to Plaintiffs Cunningham and DiDonato and the Retired Employee Subclass about their rights under the Plan, including the right hold Wawa stock after termination of employment. Count VI alleges that Wawa violated ERISA, by enacting and applying the 2014 Plan Amendment and the 2015 Plan Amendments to Plaintiffs and both the Retired Employee Subclass and the Terminated Pre-2014 Employee Subclass. Count VII seeks an injunction against all Defendants that the 2015 Amendment is invalid as to Plaintiffs Cunningham, DiDonato and the Retired Employee Subclass and these Plaintiffs and this Subclass are entitled to have the Plan reformed accordingly so that their rights and benefits are determined in accordance with its terms in effect when they terminated or retired. Count VIII alleges that the Committee Defendants violated ERISA, by providing Plaintiffs and the Retired Employee Subclass and the Terminated Pre-2014 Employee Subclass with Summary Plan Descriptions (SPDs) that did not meet those standards at least to information about their ability remain participants in the ESOP and remain invested in Wawa stock after employees terminated employment. Count XI claims that Defendant Wawa breached its fiduciary duties to Plaintiffs and the Class under ERISA by failing to monitor the other fiduciaries who breached their duties or engaged in prohibited transactions. Count X seeks a determination against all Defendants by Plaintiffs and the Class that the Plan's attempts to relieve its fiduciaries of liability for fiduciary breaches is void pursuant to ERISA and any fiduciary who agreed to such indemnification breached their fiduciary duties under ERISA.[CC] WEINSTEIN KARP: McLean Files TCPA Suit in C.D. Calif. ----------------------------------------------------- A class action lawsuit has been filed against Weinstein, Karp & Associates, Inc. The case is styled as Kyle McLean, individually and on behalf of others similarly situated, Plaintiff v. Weinstein, Karp & Associates, Inc., DOES 1 through 10, inclusive, Defendants, Case No. 2:19-cv-02251 (C.D. Cal., Mar. 26, 2019). The Plaintiff filed the case under the Telephone Consumer Protection Act. Weinstein, Karp & Associates, Inc. is a collection agency located in Pasadena, California.[BN] The Plaintiff is represented by: Amir J Goldstein, Esq. Amir J Goldstein Law Offices 8032 West Third Street Suite 201 Los Angeles, CA 90048 Phone: (323) 937-0400 Fax: (866) 288-9194 Email: ajg@consumercounselgroup WELLS FARGO: Court Continues Renewed Class Certification Motion --------------------------------------------------------------- In the class action lawsuit Taysir Tayeh, et al., the Plaintiff, v. Wells Fargo Bank, N.A., et al., the Defendant, Case No. 1:16-cv-11223 (N.D. Ill.), the Hon. Judge Rebecca R. Pallmeyer entered an order continuing Plaintiffs' renewed motion for class certification. According to the docket entry made by the Clerk on March 18, 2019, the Motion hearing was held on the day. The Plaintiffs' renewed motion for class certification is entered and continued. WILHELMINA INTERNATIONAL: Discovery Still Ongoing in Shanklin Suit ------------------------------------------------------------------ Wilhelmina International, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on March 20, 2019, for the fiscal year ended December 31, 2018, that discovery is ongoing in the putative class action lawsuit initiated by Alex Shanklin. On October 24, 2013, a putative class action lawsuit was brought against the Company by former Wilhelmina model Alex Shanklin and others (the "Shanklin Litigation"), in New York State Supreme Court (New York County) by the same lead counsel who represented plaintiffs in a prior, now-dismissed action brought by Louisa Raske (the "Raske Litigation"). The claims in the Shanklin Litigation initially included breach of contract and unjust enrichment allegations arising out of matters similar to the Raske Litigation, such as the handling and reporting of funds on behalf of models and the use of model images. Other parties named as defendants in the Shanklin Litigation include other model management companies, advertising firms, and certain advertisers. On January 6, 2014, the Company moved to dismiss the Amended Complaint in the Shanklin Litigation for failure to state a claim upon which relief can be granted and other grounds, and other defendants also filed motions to dismiss. On August 11, 2014, the court denied the motion to dismiss as to Wilhelmina and other of the model management defendants. Further, on March 3, 2014, the judge assigned to the Shanklin Litigation wrote the Office of the New York Attorney General bringing the case to its attention, generally describing the claims asserted therein against the model management defendants, and stating that the case "may involve matters in the public interest." The judge's letter also enclosed a copy of his decision in the Raske Litigation, which dismissed that case. Plaintiffs retained substitute counsel, who filed a Second and then Third Amended Complaint. Plaintiffs' Third Amended Complaint asserts causes of action for alleged breaches of the plaintiffs' management contracts with the defendants, conversion, breach of the duty of good faith and fair dealing, and unjust enrichment. The Third Amended Complaint also alleges that the plaintiff models were at all relevant times employees, and not independent contractors, of the model management defendants, and that defendants violated the New York Labor Law in several respects, including, among other things, by allegedly failing to pay the models the minimum wages and overtime pay required thereunder, not maintaining accurate payroll records, and not providing plaintiffs with full explanations of how their wages and deductions therefrom were computed. The Third Amended Complaint seeks certification of the action as a class action, damages in an amount to be determined at trial, plus interest, costs, attorneys' fees, and such other relief as the court deems proper. On October 6, 2015, Wilhelmina filed a motion to dismiss as to most of the plaintiffs' claims. The Court entered a decision granting in part and denying in part Wilhelmina's motion to dismiss on May 26, 2017. The Court (i) dismissed three of the five New York Labor Law causes of action, along with the conversion, breach of the duty of good faith and fair dealing and unjust enrichment causes of action, in their entirety, and (ii) permitted only the breach of contract causes of action, and some plaintiffs' remaining two New York Labor Law causes of action to continue, within a limited time frame. The plaintiffs and Wilhelmina each appealed and the decision was affirmed on May 24, 2018. On August 16, 2017, Wilhelmina timely filed its Answer to the Third Amended Complaint, and discovery in this action is continuing. The Company believes the claims asserted in the Third Amended Complaint are without merit, and intends to continue to vigorously defend the action. No further updates were provided in the Company's SEC report. Wilhelmina International, Inc. provides fashion model and talent management services. The company engages in the representation and management of models, entertainers, artists, athletes, and other talent to various clients. Wilhelmina International, Inc. was founded in 1967 and is headquartered in Dallas, Texas. WILHELMINA INTERNATIONAL: Roberta Little Now Sole Plaintiff ----------------------------------------------------------- Wilhelmina International, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on March 20, 2019, for the fiscal year ended December 31, 2018, that the company continues to defend a class action lawsuit initiated by Shawn Pressley but leaves Roberta Little as the sole named plaintiff. On June 6, 2016, another putative class action lawsuit was brought against the Company by former Wilhelmina model Shawn Pressley and others (the "Pressley Litigation"), in New York State Supreme Court (New York County) by the same counsel representing the plaintiffs in the Shanklin Litigation, and asserting identical, although more recent, claims as those in the Shanklin Litigation. The Amended Complaint, asserting essentially the same types of claims as in the Shanklin action, was filed on August 16, 2017. Wilhelmina filed a motion to dismiss the Amended Complaint on September 29, 2017, which was granted in part and denied in part on May 10, 2018. Some New York Labor Law and contract claims remain in the case. Discovery is proceeding, and Ms. Pressley has withdrawn from the case, leaving Roberta Little as the sole named plaintiff in the Pressley Litigation. The Company believes the claims asserted in the Pressley Litigation are without merit, and intends to continue to vigorously defend the action. No further updates were provided in the Company's SEC report. Wilhelmina International, Inc. provides fashion model and talent management services. The company engages in the representation and management of models, entertainers, artists, athletes, and other talent to various clients. Wilhelmina International, Inc. was founded in 1967 and is headquartered in Dallas, Texas. [*] Congress Considering New Privacy Law to Govern Data Breaches ---------------------------------------------------------------- Daniel Wilf-Townsend, Esq. -- daniel@guptawessler.com -- of Gupta Wessler PLLC, in an article for The Washington Post, reports that in 2016, Uber was hacked. The hackers stole personal information -- including driver's license numbers, cellphone numbers, and email addresses -- from 50 million riders and 7 million drivers. Uber then did not disclose it for a year, paying ransom to the hackers and withholding the risks of identity theft from its customers and the public at large. The massive breach echoed an incident 10 years earlier, in which a Countrywide Financial employee stole millions of customers' private information, according to federal investigators, including bank account information and Social Security numbers. Countrywide's customers went to court and won a class-action settlement that provided free credit monitoring and reimbursed anyone who lost money. But when Uber's customers tried to band together in a class action and sue, they were thrown out of court. The reason? Between 2006 and 2016, they had effectively lost the right to protect themselves in court as part of a dramatic change in American law: the rise of forced arbitration. Right now, Congress is considering a new federal privacy law -- the kind that would govern these kinds of massive data breaches. There's lots of momentum behind such a law, with support from many Democrats and Republicans, and even major tech companies such as Apple, Google and AT&T. But nearly all of the proposals on the table have ignored the crucial issue of forced-arbitration clauses in consumer contracts. Companies use these clauses to prevent customers from suing them, often leaving no practical options for consumers whose rights have been violated. No matter what rights a new federal privacy law purports to provide, those rights could be hard to enforce unless the law also addresses forced arbitration. [Big tech firms still don't care about your privacy] Public awareness of the problems associated with arbitration clauses is growing, as the #MeToo movement has shed light on how they can prevent employees from suing employers over sexual harassment and other forms of discrimination. But arbitration clauses -- a few words inserted into contracts that prevent customers or employees from going to court -- can turn up in just about any commercial transaction. Large companies often use them to prevent people whose rights have been violated en masse from joining in a class action. You might think, for instance, that Uber's customers should have been able to hold it to account just like Countrywide was. But Uber's terms of service contain an arbitration clause; if you've ever used Uber, it's almost a sure bet that you're bound by the clause, regardless of whether you realized you were giving up your rights (though it ended this practice last year for sexual misconduct allegations). These clauses get their legal power from the Federal Arbitration Act, a law passed nearly a century ago. For most of its existence, the law did not affect many people: It was designed to apply mainly to businesses dealing with each other and not to their consumers or employees. But a string of Supreme Court decisions over the last 20 years dramatically broadened the law's scope, often with only a narrow majority of the court's conservative members supporting the expansion. Now, companies are allowed to require their customers and employees to sign contracts that essentially waive any effective remedy for broad categories of legal claims. Arbitration clauses are especially harmful when it comes to the Internet, because almost everything we do online involves a contract. When your ISP delivers a Web page to your computer, when you buy something online or share a photo or video, when you send an email to a friend -- all of these actions take place under a company's terms and conditions, the one-size-fits-all contracts that we each must accept if we want to use a company's services. Those terms often contain an arbitration clause. Even though these terms of service are nonnegotiable, hard to decipher and rarely read, courts generally enforce them. And because arbitration clauses are empowered by federal law, states can do little to change their own laws to protect citizens from them. [Facebook could easily make privacy the default. It still hasn't.] Companies have learned to use arbitration clauses to evade what limited state and federal privacy laws exist. In 2013, for instance, Yahoo suffered a massive data breach. Because its customers were not all bound by an arbitration clause, they were able to band together in a class action and go to court to argue that Yahoo had legally inadequate data security. But then Verizon acquired Yahoo in 2017 and rolled out a new contract complete with an arbitration clause forbidding class actions -- ensuring that no similar lawsuits can be brought in the future. This tactic is widespread. Courts have recently forced arbitration, for instance, on people alleging that Barnes and Noble unlawfully shared customer information with Facebook; that the corporate transparency site Glassdoor publicly revealed anonymous contributors' information; and that Snapchat has been illegally gathering and storing its users' biometric information. In these disputes, the problem isn't that there's no law on the books, it's that arbitration clauses prevent people from enforcing the laws that already exist. And those are just the cases that we know of because someone tried to go to court anyway. The deeper problem with arbitration clauses is that they prevent legitimate claims from being made in the first place, especially when they forbid class actions. Nobody is going to hire a lawyer to dispute a wrongfully added charge of $5 or $6 on their monthly Internet bill; combining many such claims is often the only feasible way for private citizens to enforce their legal rights. When that route is not available, many potential claims will just never be made. The rare consumer who does decide to take a dispute to arbitration has to plead their case in front of a private arbitrator, who, unlike a judge, usually rules in secret. The result is that the rest of us -- other consumers, other companies, and law enforcement entities -- may never know the extent of a company's legal violations, or even whether the people who brought the lawsuits were victorious. But the limited data available indicate that success rates are shockingly low. A review of one arbitration company by the consumer group Public Citizen, for example, found that in a sample of 19,000 cases, the arbitrator ruled against consumers 94 percent of the time. [Why didn't Equifax protect your data? Because corporations have all the power.] When private citizens can't bring lawsuits, the enforcement of the law rests entirely with government officials. The Federal Trade Commission, for instance, has entered into a settlement with Uber regarding the data breach mentioned above, as has a nationwide coalition of attorneys general. But the recent record of public enforcement is mixed, at best. Public agencies have limited resources, and they can be hard-pressed to tackle violations by some of the world's largest companies. The FTC has repeatedly been criticized for failing to enforce its long-standing consent decrees against Facebook and Google, and for refusing to enforce antitrust laws against Google despite the recommendations of its own staff. More broadly, the Trump administration has staffed federal agencies with leaders who are often explicitly anti-enforcement, hitting home the fragility of a system that does not allow consumers and citizens to defend their own interests. Any new privacy law should include a "private right of action," meaning a provision that allows individuals to sue someone who violates their rights under the law, as the ACLU's Neema Singh Guliani argued persuasively in a recent New York Times op-ed. But that's only a first step, because it is precisely those rights to sue that individuals can be forced to give up through arbitration clauses. To be more than just words on a page, a new federal privacy law will have to include a specific exemption from the Federal Arbitration Act. There is precedent for this: The Dodd-Frank Act, for instance, prohibited forced arbitration in mortgage agreements; the Military Lending Act barred it for consumer loans to troops; legislation introduced in the House of Representatives last term would ban it for claims of sex discrimination. Because so many privacy issues arise online, and because so much online activity is governed by contracts, a new privacy law is a natural candidate for a similar provision. An arbitration carve-out in a federal privacy law wouldn't fix all of the problems surrounding arbitration. Ultimately, the Federal Arbitration Act should be amended to scale back some of the Supreme Court's more far-reaching decisions. But given the consensus building around the need for greater consumer protections online, it's important to ensure that whatever laws Congress passes are as effective as possible. There are many debates ahead about just what a new privacy law should look like. Whatever the outcome of those discussions, though, forced arbitration should not be on the table. [GN] ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2019. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000. *** End of Transmission ***