/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/190509.mbx C L A S S A C T I O N R E P O R T E R Thursday, May 9, 2019, Vol. 21, No. 93 Headlines 3M COMPANY: Mendez Sues over Defective Combat Arms Earplugs 3M COMPANY: Wright Sues over Defective Combat Arms Earplugs ABBVIE: Several Organizations Join Antitrust Class Action ALLEN COUNTY, IN: Partial Summary Judgment Bid in Barnhart Granted AMAZING HOME: Court Conditionally Certifies Class in Rivas Suit AMERICAN MEDICAL RESPONSE: Romo Sues over Debt Collection Calls AMERICAN SECURITY: Chatfield Suit Removed to S.D. Florida APYX MEDICAL: Pritchard Sues over Artificially Inflated Stock Price ARS NATIONAL: Vitanza-Stephens Files FDCPA Suit in E.D. New York ASCENDA USA: Charlot FLSA Suit Transferred From Arizona to Colorado ASUS COMPUTER: Brekhus Suit Moved to N.D. California Court AT&T MOBILITY: Morrison Sues over Collection of Geolocation Data ATONOMI LLC: Hunichen Seeks Return of $25MM Under Wash. Sec. Act AVENTURA CJ: Fente Sues Over Unsolicited Telemarketing Under FLSA BANK OF AMERICA: Lopez et al. Seek to Certify Class of Employees BARTELLHOTELS MANAGEMENT: Does not Pay Proper Wages, Sanchez Says BCC FOOD: Castillo Seeks Unpaid Overtime Wages for Managers BLUE CROSS: Wun-Ling Suit Removed From Super. Ct. to C.D. Calif. BP EXPLORATION: Claims Admin to Show Settlement Acct. Justification BROOKLYN HISTORICAL: Cartagena Seeks Overtime Pay CANADIAN FOOTBALL: Still in Discussions Over Concussion Case CARE.COM INC: Block & Leviton Files Securities Class Action CAVALRY PORTFOLIO: Wallace Files FDCPA Suit in E.D. New York CCC INFO: Denial of Bids to Compel Appraisal in Milligan Affirmed CENTRAL MAINE POWER: Customers' Class Suit on Hold Until October CHILDREN'S PLACE: Mendieta to Recoup Unpaid Overtime Wages CHOICE HOTELS: Bid to Dismiss Amended DiFlavis FLSA Suit Denied CIGNA CORP: Reed Smith Attorney Discusses 2nd Cir. Ruling CINETOPIA LLC: Viers Files ADA Suit in W.D. Washington COLONIAL PARKING: Court Grants Bid to Amend Abraha ERISA Suit COLUMBUS VILLAGE: Almazo Vidal, et al. Seek Unpaid Wages COMPLIANCE ENVIROSYSTEMS: Seeks Dismissal of Lewis Class Action CONNECTICUT: Court Grants Bid for Leave to File Amended FAPE Suit CONSOLIDATED WORLD: Approval of Notice Plan Sought COTTON PATCH: Norred Files Action Over Subminimum Hourly Wages CUSTOM AUTO: Doss Sues Over Unpaid Overtime Wages DENKA PERFORMANCE: Butler Appeals E.D. La. Judgment to 5th Cir. ELY'S TIRE: Violates FLSA, Fish Suit Asserts EVERGREEN ADULT: Fails to Pay Overtime Under FLSA, Lee Suit Says EVERYDAY BEAUTY: Lin et al. Seek to Certify Class Action EXTREME NETWORK: June 20 Settlement Fairness Hearing Set EXXON MOBIL: Court Denies Bid to Dismiss LeBlanc and Beasley Claims EXXON MOBIL: Ninth Circuit Appeal Filed in Goldstein Class Suit EXXON: Victoria, BC Mayors Reconsidering Class Action Plan FACEBOOK INC: Ex-Post Moderator Files Class Action FIRST ADVANTAGE: Cherry FCRA Class Suit Removed to W.D. Missouri FIRST CHOICE: May 28 Lead Plaintiff Motion Deadline Set FITBIT: Settles Class Action Over Defective Sleep Tracker Devices FORSTER & GARBUS: Bid for Responses in Safont Suit Partly Granted FORSTER & GARBUS: Stessel FDCPA Suit Removed to S.D. New York FOX RUN: Hawk Seeks Unpaid Minimum Wages, Damages GEORGIA: Court Denies Bid for Joinder in Wright Suit GPB CARS 12: Page Files Consumer Credit Suit in New Jersey GROSSMAN & KARASZEWSKI: Hochhauser Files FDCPA Class Action HCSG WEST: Barrientos Brings Suit Under Calif. Wage & Hour Laws HEALTHCARE SERVICES: Kahn Swick Files Securities Fraud Suit HERBERT P. SEARS: Thompson Brings Suit Under FDCPA HIRERIGHT LLC: Bid to Transfer Gray FCRA Suit to M.D. Tenn. Denied HUNTER WARFIELD: Vazquez Suit Transferred From E.D. to M.D. Pa. IDAHO: High Court Might Weigh Public Defender Class Suit INOGEN INC: Rosen Law Firm Files Securities Fraud Class Suit ISLE OF CAPRI: Wage Class Action Scheduled for Trial Next Year JIFFY LUBE: Faces Migyanko Suit over Handicapped Accessibility KARL E. THOMAS: Tenants Sue Landlord Over Unlawful Lease Terms KIA MOTORS: Casas Files Suit Over Vehicles' Engine Defect KIMBERLY-CLARK CORP: Judge Refuses to Kick Avenatti Off Case KIND LLC: Years-Long Stay of False Marketing Suit Lifted KRAFT HEINZ: Kuznicki Law Files Class Action Over False Statements LAOS: Hmong Exiles Petition Supreme Court for Writ of Certiorari LAZZONI USA: Fischler Files ADA Suit in S.D. New York LENDLEASE: Faces Investor Class Action Over Share Price Plunge LG ELECTRONICS: Faces Class Action in U.S. Over Fridge Compressor LIBERATO RESTAURANT: Ramirez Seeks OT Pay, Minimum Wage for Drivers LIFEGUARD AMBULANCE: Loper Class Suit Removed to N.D. Alabama LL BEAN: California Judge Dismisses Return Policy Lawsuit LOUISVILLE METRO: Healey et al. Seek to Certify Class M.K. MORSE: Benton Seeks Unpaid Overtime Compensation MAINE OXY-ACETYLENE: Discounted Stock Repurchase Unfair, Says Glynn MALCOLM S. GERALD: 11 Cir. Flips FDCPA Claim Dismissal in Holzma MATT MARTORELLO: Weddle v. Williams Moved From Colo. to Virginia MCKINLEY HOMEBUILDERS: Jackson Hits Unpaid Wages, Discrimination MDL 2672: Bid to Remand Cook to Alabama State Court Denied MDL 2672: Brooks Clean Diesel Suit Remanded to State Court MDL 2672: McGowan Clean Diesel Suit Remanded to State Court MDL 2848: Hedlund Suit vs. Merck over Zostavax Consolidated MDL 2885: Amaro et al. Suit over Defective Earplugs Consolidated MDL 2885: Britton vs 3M over Combat Arms Earplugs Consolidated MDL 2885: Coyaso Suit Consolidated in 3M Earplug Litigation MDL 2885: Dufresne-Yidi Suit Consolidated in 3M Earplug Litigation MDL 2885: Garcia Suit Consolidated in 3M Earplug Litigation MDL 2885: Gould et al. Suit over Combat Arms Earplugs Consolidated MDL 2885: Lynch Suit Consolidated in 3M Combat Earplug Litigation MDL 2885: McDonagh Suit Consolidated in 3M Earplug Litigation MDL 2885: Smith Suit over Combat Arms Earplugs Consolidated MDL 2885: Stokes Suit Consolidated in 3M Combat Earplug Litigation MDL 2885: Torres Suit Consolidated in 3M Combat Earplug Litigation MDL 2885: Wimberley Suit over Combat Arms Earplugs Consolidated MENDAKOTA CASUALTY: Graves Sues Over Insurance Policy Breach MERCHANT INDUSTRY: Fabricant Sues Over TCPA Violation MIDLAND CREDIT: Class in Knight FDCPA Suit Has Prelim Approval MIDLAND CREDIT: Dipisa Files FDCPA Suit in E.D. New York MIDLAND CREDIT: Johnson Files FDCPA Suit in E.D. New York MOBILE TELESYSTEMS: Bragar Eagel Woos Investors for Class Suit MONSANTO CO: Oleyar Seeks to Recover Damages for Roundup Injuries MOPHIE INC: Hid Juice Pack's Low Capacity, Dolar Suit Says MOWI ASA: Bagels & Baguettes Sues Over Salmon Price-fixing NATIONAL RECOVERY: Dicristo Files FDCPA Suit in E.D. New York NATIONWIDE MUTUAL FIRE: Onley Alleges Breach of Insurance Deal NEW YORK HEALTH CARE: Class Action Lower Court Rulings Reversed NORTHBOUND INVESTMENTS: Does not Pay Proper OT Wages, Says Suit NPS PROPERTY: Discrimination Victims' Suit Enlarged as Class Action NUTANIX INC: Pomerantz Investigating Securities Fraud Claims OHIO MULCH: Carter Seeks Unpaid Overtime Under Ohio Wage Act ORACLE CORP: Workers Seek Jury Trial in 401(k) Class Action ORLANS PC: Garland Seeks to Certify Class & Subclasses PARADISE OAKS: Young Files Class Suit in Cal. Super. Ct. PETER THOMAS: Court Partly Grants Bid to Dismiss Miller Suit PLS FINANCIAL: Seeks Fifth Circuit Review of Vine Suit Ruling PNC BANK: Minor et al. Seek to Certify Collective FLSA Class POSCO: Massive Class Action Expected to Demand Payment From State PRATT LLC: Chavez Suit Remanded to State Court PRATT ROBERT: Chavez Appeals N.D. California Decision to 9th Cir. PREMIERE CENTER: Bush Sues Over Unsolicited Telemarketing Calls RACK ROOM: Goldschmidt Seeks to Certify TCPA Class RIPPLE LABS: Token Purchasers File Class Action Suit RIPPLE: Class Suit Still at Federal Court; May 21 Deadline Set RIUTEL FLORIDA: Honeywell Files ADA Suit in S.D. Florida ROTHMANS BENSON: Class Suit Ruling Forces PM Unit to Bankruptcy ROUND ONE: Wilson Seeks Penalties for Missed Meal, Rest Breaks SHARP GROSSMONT: Admits Recording of Gynecological Procedures SINEMIA: Faces Class Action Following Customer Complaints SITO MOBILE: Kahn Swick Probing Executives SNAP: Kessler Topaz to Remain in Charge of Class Action SOUTHLAND ROYALTY: Exclusion of Moores Testimony in Ulibarri Denied SPORTS RESEARCH: Capaci Sues Over Product's Misleading Claims STANFORD UNIVERSITY: Student Linked to Bribery Scandal Expelled SUTHERLAND GLOBAL: Can Compel Arbitration in Thompson TCPA Suit SWEPI LP: Walney Appeals Class Decertification Order to 3rd Cir. TIDAL BASIN HOLDING: Nelson Seeks OT Premium Pay TRAILER BRIDGE: Diaz Files Suit to Recover Unpaid Overtime Wages TURTLE CREEK: Ochoa Files FDCPA Suit in N.D. Texas UBS FINANCIAL: Hsu Appeals N.D. California Ruling to 9th Circuit UCLA HEALTH: Terms of $7.5MM Cyber Attack Class Action Settlement UNITED HEALTHCARE: 10th Circuit Appeal Filed in Fedor FLSA Suit UNITED STATES: Ct. Addresses Discovery Dispute in Veterans APA Suit UNITED STATES: Identification of Separated Families to Take 2 Yrs UNITED STATES: Prelim Injunction in Immigrant Rights Suit Issued UNIVERSAL FIDELITY: Watts Files FDCPA Suit in E.D. New York VIRGINIA TAN: Judge Certifies $30MM Ponzi Scheme Class Action VITAL PHARMA: Imran & Madison Suits Over False Ad Consolidated WARREN COUNTY, OH: Ct. Certifies Class in Adoption Assistance Suit WASHINGTON: Settles CRT Antitrust Class Action for $39MM WATKINS AND SHEPARD: Watkins Stayed Pending Sampson, IBT Resolution WAYFAIR LLC: Hamilton Suit Removed to N.D. California WEBB & GERRITSEN: Violates Wisconsin Wage Laws, Klahn Suit Says WELLS FARGO: Rogers Sues over Credit Background Checks WESTJET: Unions Slow to Address Sexual Assault Case WHIRLPOOL CORP: Ct. Junks Objections to Discovery Master's Report WHITE DOVE: Cooper Seeks Correct Overtime Wages WILDERNESS ALTERNATIVE: Bid to Certify Class in Walker Suit Denied YALAHA BAKERY: Berrios Seeks Regular and Overtime Wages, Damages ZESTFINANCE INC: Faces Turner et al. Suit over Usurious Loans ********* 3M COMPANY: Mendez Sues over Defective Combat Arms Earplugs ----------------------------------------------------------- The case, ANTONIO MENDEZ, individually and on behalf of others similarly situated, the Plaintiff, vs. 3M COMPANY, the Defendant, Case No. 3:19-cv-01175-MCR-GRJ (S.D. Fla., April 9, 2019), seeks to hold 3M liable for hearing loss or damage they allegedly suffered while serving variously in the U.S. military, including during foreign conflicts. The Plaintiff contends that Combat Arms TM Earplugs, Version 2 ("CAEv2") manufactured and sold by Aearo were defectively designed and failed to provide adequate hearing protection. 3M denies these allegations. CAEv2, designed by Aearo in close collaboration with the U.S. military, represented a revolutionary breakthrough in hearing protection for service members. CAEv2 helped servicemembers better maintain situational awareness (e.g., to hear nearby voice commands) while also maintaining some protection from gunfire and other higher decibel sounds. CAEv2 met the U.S. military's specifications and helped the military provide hearing protection to service members. Despite knowing of the dangerous defects in its earplugs, Defendant sold the Dual-ended Combat ArmsTM earplugs to the branches of the U.S. military for more than a decade without providing the U.S. military and/or Plaintiff with any warning of said defects, causing Plaintiff and other service members similar permanent injuries, such as hearing loss.[BN] Attorneys for the Plaintiff: Roberto Martinez, Esq. Francisco R. Maderal, Esq. Lazaro Fields, Esq. COLSON HICKS EIDSON, P.A. 255 Alhambra Circle, Penthouse Coral Gables, FL 33134 Telephone: (305) 476.7400 Facsimile: (305) 476.7444 E-mail: bob@colson.com frank@colson.com laz@colson.com 3M COMPANY: Wright Sues over Defective Combat Arms Earplugs ----------------------------------------------------------- The case, ANTONIO J. WRIGHT, the Plaintiff, vs. 3M COMPANY, the Defendant, Case No. 1:19-cv-01908-WMR (N.D. Ga., April 29, 2019), seeks to hold 3M liable for hearing loss or damage they allegedly suffered while serving variously in the U.S. military, including during foreign conflicts. The Plaintiff contends that Combat Arms TM Earplugs, Version 2 ("CAEv2") manufactured and sold by Aearo were defectively designed and failed to provide adequate hearing protection. 3M denies these allegations. CAEv2, designed by Aearo in close collaboration with the U.S. military, represented a revolutionary breakthrough in hearing protection for service members. CAEv2 helped servicemembers better maintain situational awareness (e.g., to hear nearby voice commands) while also maintaining some protection from gunfire and other higher decibel sounds. CAEv2 met the U.S. military's specifications and helped the military provide hearing protection to service members. Despite knowing of the dangerous defects in its earplugs, Defendant sold the Dual-ended Combat ArmsTM earplugs to the branches of the U.S. military for more than a decade without providing the U.S. military and/or Plaintiff with any warning of said defects, causing Plaintiff and other service members similar permanent injuries, such as hearing loss.[BN] Attorneys for the Plaintiff: J. Parker Miller, Esq. Rhon E. Jones, Esq. William R. Sutton, Esq. Andrew F. Banks, Esq. BEASLEY, ALLEN, CROW, METHVIN, PORTIS, & MILES, P.C. 4200 Northside Parkway NW Building One, Suite 100 Atlanta, GA 30327 Telephone: (404) 751-1162 Facsimile: (334) 954-7555 E-mail: Parker.Miller@BeasleyAllen.com Rhon.Jones@BeasleyAllen.com William.Sutton@BeasleyAllen.com Andrew.Banks@BeasleyAllen.com ABBVIE: Several Organizations Join Antitrust Class Action --------------------------------------------------------- Eric Sagonowsky, writing for FiercePharma, reports that AbbVie's Humira protection strategy has made headlines almost daily as critics multiply -- and so do legal threats. More plaintiffs are piling into court claiming the company illegally quashed competition with a "patent thicket" and a "pay-for-delay" deal. Since a grocery workers' union in New York filed its lawsuit March 18, several other organizations have joined the fight. Police officers in Miami, the mayor and city council in Baltimore, plus groups representing pipefitters and electrical workers in Minnesota have filed class actions with similar complaints, according to court filings. A union representing heavy machine operators in New York also sued. The lawsuits allege AbbVie blocked competition to Humira by creating a "patent thicket" that effectively prevents biosimilar makers from reaching the market. Backed by the "thicket," the company sued biosim makers and settled on 2023 launch dates, delaying the entry of low-cost copycats. Humira's main patent expired in 2016. The recent lawsuits also list Amgen as a defendant. In those cases, plaintiffs say Amgen will get a payout by being the first to reach a settlement with AbbVie. Under its settlement, Amgen can launch its biosimilar in January 2023, while other competitors won't hit the market until June that year at the earliest. An AbbVie representative said the allegations are "factually inaccurate and legally baseless." "AbbVie's settlement agreements resolved complex intellectual property issues and provide biosimilar access more than 10 years before our last Humira patent expires," she added. "They do not involve any payments or other incentives from AbbVie to induce resolution." A spokeswoman for Amgen said the company is "reviewing the complaints and will vigorously defend our actions." She said the company's settlement was "procompetitive and not anticompetitive because it allows Amgen's product to come to the US market years before the expiration of all of AbbVie's asserted patents." Amgen will pay a royalty to AbbVie under the deal, she added. AbbVie won't pay Amgen. At a recent Congressional hearing, AbbVie CEO Richard Gonzalez acknowledged the biosim deals may not be "popular," but he said AbbVie sought to strike a "reasonable balance" with the moves. Some of Humira's patents don't expire until long after 2023, he pointed out. One biosim maker has opted not to settle. Boehringer Ingelheim has leveled similar allegations in court, alleging AbbVie pursued overlapping and non-inventive patents to protect Humira. Meanwhile, in Europe, biosims have already rolled. There, they're hurting AbbVie's pricing power and stealing market share. In fact, a publication in the Netherlands recently reported that the company is aggressively discounting there in order to keep business. Some biosim companies have pulled back from the market in response, according to the report. AbbVie's Humira is the world's best-selling drug, generating nearly $20 billion last year. The company hopes it can protect sales for the med in the coming years as its new launches pick up steam. Skyrizi, a new immunology med, recently won its first global approval in Japan. AbbVie is also counting on upadacitinib to post strong sales growth upon a launch, expected this year. [GN] ALLEN COUNTY, IN: Partial Summary Judgment Bid in Barnhart Granted ------------------------------------------------------------------ In the case, IAN BARNHART, Individually and on behalf of all others similarly situated, Plaintiff, v. DAVID GLADIEUX, in his official capacity, Defendant, Cause No. 1:17-CV-124-TLS (N.D. Ind.), Judge Theresa L. Springman of the U.S. District Court for the Northern District of Indiana, Fort Wayne Division, granted the Defendant's Motion for Partial Summary Judgment. On March 27, 2017, the Plaintiffs filed their Class Action Complaint against Defendant Gladieux, in his official capacity. The Plaintiffs filed an Amended Complaint on June 6, 2017, a First Amended Motion for Class Certification, and a Second Amended Complaint on Aug. 15, 2017. The Plaintiffs allege that the Defendant refused to provide the Plaintiffs with absentee ballots or alternative access to the polls in violation of the Fourteenth Amendment and seeks damages pursuant to 42 U.S.C. Section 1983. On Nov. 13, 2017, the Court dismissed the Plaintiffs' First Amended Motion for Class Certification. In that Order, the Court found that, although Plaintiff Barnhart was not incarcerated until after the date in which he could request an absentee ballot, he could not vote solely because he was a pretrial detainee in the Allen County Jail and the Defendant did not provide any means for Plaintiff Barnhart to exercise his right to vote. On March 7, 2018, Plaintiff Barnhart filed a Second Motion to Certify the Class, which was granted on May 17, 2018. The Court certified the class of all individuals held at the Allen County Jail on Nov. 8, 2016, who on that date were U.S. citizens, residents of Indiana, were at least eighteen years of age, were not serving a sentence for a conviction of a felony crime, had not previously voted in the 2016 general election, were provided neither an absentee ballot nor transportation to a voting center, and were registered to vote or had been denied the opportunity to vote while held in the Allen County Jail. On July 23, 2018, the Defendant filed a Motion for Partial Summary Judgment, seeking to dismiss the claims of the Class Members incarcerated in the Allen County Jail on Oct. 31, 2016. The Defendant argues that the Plaintiffs have failed to demonstrate that the October Class Members were unable to vote by absentee ballot under Allen County Jail policy or practice. The Defendant argues that the October Class Members were freely able to vote by absentee ballot under both express Allen County Jail policy and Indiana law. Thus, he argues, no policy or practice of the Allen County Sheriff's Department caused any alleged constitutional injury. The Defendant does not move for summary judgment for Class Members booked into the Allen County Jail after the Oct. 31, 2016 deadline to request an absentee ballot, as issues of fact that preclude an entry of summary judgment. On Aug. 20, 2018, the Plaintiffs filed a Response to the Defendant's Motion for Partial Summary Judgment. On Sept. 4, 2018, the Defendant filed a Reply in Support of Motion for Partial Summary Judgment. On Sept. 27, 2018, with the Court's permission, the Plaintiffs filed a sur-response to the Defendant's Motion for Partial Summary Judgment. Judge Springman cannot say that the policy within the Jail Rules was insufficient without evidence that the Class Members attempted to exercise their rights pursuant to the policy. Accordingly, the Plaintiffs have failed to establish that there was an omission in the Jail Rules, and therefore does not need to address whether there was a corresponding widespread practice that violated the Class Members' right to vote. In addition, the Plaintiffs' evidence, the petition and affidavits do not demonstrate that there was an attempt to exercise the right to vote via absentee ballot. Without such an affirmative attempt, the Defendant could not have had a basis to think that the training was inadequate. That the October Class Members were eligible to vote via absentee ballot and failed to do so does not mean that the Defendant was on notice that training was inadequate. Thus, the Plaintiffs have not demonstrated that there is a genuine dispute of material fact as to whether the Defendant's failure to train resulted in the disenfranchisement of the October Class Members. Judge Springman concludes that the Plaintiffs have not demonstrated that there is a genuine issue of material fact for trial with respect to the October Class Members. For the foregoing reasons, he granted the Defendants' Motion for Partial Summary Judgment. Accordingly, he dismissed without prejudice the claims of the Class Members incarcerated in the Allen County Jail on Oct. 31, 2016. The claims of the Class Members incarcerated in the Allen County Jail after that date remain pending. A full-text copy of the Court's April 3, 2019 Opinion and Order is available at https://is.gd/deC3gr from Leagle.com. Ian Barnhart, individually and on behalf of all others similarly situated, Plaintiff, represented by Christopher C. Myers, Christopher C Myers & Associates & David W. Frank, Christopher C Myers & Associates. David Gladieux, in his official capacity, Defendant, represented by J. Spencer Feighner -- jsf@hallercolvin.com -- Haller & Colvin PC & John O. Feighner -- jfeighner@hallercolvin.com -- Haller & Colvin PC. AMAZING HOME: Court Conditionally Certifies Class in Rivas Suit --------------------------------------------------------------- In the class action lawsuit, RICARDO RIVAS, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, the Plaintiffs, vs. AMAZING HOME COMMUNITY SERVICES, LLC & ADELA SEGO VIA, the Defendants, Case No. 5:19-cv-00086-OLG (W.D. Tex.), the Hon. Judge Orlando L. Garcia entered an order: 1. conditionally certifying collective action under the Fair Labor Standards Act section 216 and and authorizing Plaintiff's counsel, Lawrence Morales II and Allison S. Hartry of The Morales Firm, P.C., to issue opt-in notices and consent forms to the following Class: "all current and former hourly employees employed by Defendants from [three years prior to the date the notice is issued to the present who worked more than forty hours in at least one workweek and were not paid an overtime premium of one-and-one- half times their hourly rate for those hours"; 2. directing the Defendants to produce to Plaintiff's counsel in a usable electronic format no later than 10 days from the entry of the Court's Order: the names, last-known residential addresses, and dates of employment of all hourly employees who meet the parameters of the Class; and 3. authorizing the Notice and Consent to Join to be issued immediately to the Class Members.[CC] AMERICAN MEDICAL RESPONSE: Romo Sues over Debt Collection Calls --------------------------------------------------------------- A class action complaint has been filed against American Medical Response Ambulance Service, Inc. (AMR) for violations of the Telephone Consumer Protection Act (TCPA) and the Rosenthal Fair Debt Collection Practices Act (RFDCPA). The case is captioned DEBRA ROMO, individually and on behalf of all others similarly situated, Plaintiff, vs. AMERICAN MEDICAL RESPONSE AMBULANCE SERVICE, INC. D/B/A AMR, and DOES 1 through 10, inclusive, Defendant, Case No. 5:19-cv-00707 (C.D. Cal., April 17, 2019). In its efforts to collect an alleged debt owed from Plaintiff Debra Romo, AMR used an automatic telephone dialing system, violating the FLSA. During all relevant times, AMR did not possess Romo's prior express consent to receive calls using an automatic telephone dialing system or an artificial or prerecorded voice on her cellular telephone. AMR has also violated the RFDCPA in multiple ways, including but not limited to causing a telephone to ring repeatedly or continuously to annoy Romo and to communicating with Romo at times or places which were known or should have been known to be inconvenient for Romo. AMR is a medical response company engaged in collection activity in connection with debts allegedly owed to it. The company is headquartered in Greenwood Village, Colorado and maintains offices in the state of California. [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 Telephone: 323-306-4234 Facsimile: 866-633-0228 E-mail: tfriedman@toddflaw.com abacon@toddflaw.com mgeorge@toddflaw.com AMERICAN SECURITY: Chatfield Suit Removed to S.D. Florida --------------------------------------------------------- The case captioned as ANTONIO CHATFIELD, LORENZO PATTERSON, and others similarly situated, Plaintiffs, v. AMERICAN SECURITY GROUP A-1, INC. a Florida Profit Corporation, d/b/a A-1 LOCK AND KEY a/k/a A-1 LOCK & KEY, MICHAEL NETTLES, individually, Defendants, Case No. 2019-008485-CA was removed from the 11th Judicial Circuit in and for Miami-Dade County, Florida to the United States District Court for the Southern District of Florida on April 26, 2019, and assigned Case No. 1:19-cv-21641. Plaintiffs assert claims against Defendants for Recovery of Overtime Compensation and Recovery of Minimum Wages pursuant to the Fair Labor Standards Act ("FLSA") (Counts I and III) and for Recovery of Minimum Wages arising under state law (Count II). In Counts I-III of the Complaint, Plaintiffs seek monetary relief on behalf of themselves and similarly situated individuals pursuant to FLSA and state law.[BN] The Defendants are represented by: ROBERT M. EINHORN, ESQ. ALAINA B. KARSTEN, ESQ. ZARCO EINHORN SALKOWSKI & BRITO, P.A. One Biscayne Tower 2 S. Biscayne Blvd., 34th Floor Miami, FL 33131 Phone: (305) 374-5418 Facsimile: (305) 374-5428 Email: reinhorn@zarcolaw.com akarsten@zarcolaw.com Secondary Email: acs@zarcolaw.com npico@zarcolaw.com APYX MEDICAL: Pritchard Sues over Artificially Inflated Stock Price ------------------------------------------------------------------- A securities class action complaint has been filed against Apyx Medical Corporation and CEO Charles D. Goodwin for violations of Sections 10(b) and 20(a) of the Securities and Exchange Act. The case is captioned KYLE PRITCHARD, Individually and On Behalf of All Others Similarly Situated, Plaintiff, v. APYX MEDICAL CORPORATION f/k/a/ BOVIE MEDICAL CORPORATION, and CHARLES D. GOODWIN, Defendants, Case No. 8:19-cv-00919 (M.D. Fla., April 17, 2019). Plaintiff Kyle Pritchard alleges that Defendants have carried out a plan, scheme and course of conduct intended to deceive the investing public and cause them to purchase Apyx's securities at artificially inflated prices. Defendants have also employed devices, schemes, and artifices to defraud; made untrue statements of material fact and/or omitted to state material facts necessary to make the statements not misleading; and engaged in acts, practices, and a course of business which operated as a fraud and deceit upon the purchasers of the company's securities in an effort to maintain artificially high market prices for Apyx's securities in violation of Section 10(b) of the Exchange Act and Rule 10b-5. Apyx is incorporated under the laws of Delaware and its principal executive offices are located in Clearwater, Florida. Apyx's common stock trades on the NASDAQ exchange under the symbol APYX. Apyx was formerly known as Bovie Medical Corporation, and its stock traded on the New York Stock Exchange under the symbol BVX until Jan 1, 2019. Headed by CEO Charles D. Goodwin, this medical technology company purportedly develops J-Plasma, a plasma-based surgical product for cutting, coagulation and ablation of soft tissue. It markets and sells J-Plasma under the brand name Renuvion Cosmetic Technology. It also claims that it has developed J-Plasma/Renuvion for use in dermal resurfacing procedures. [BN] The Plaintiff is represented by: Leo W. Desmond, Esq. DESMOND LAW FIRM, P.C. 5070 Highway A1A, Suite D Vero Beach, FL 32963 Telephone: 772.231.9600 Facsimile: 772.231.0300 E-mail: lwd@desmondlawfirm.com - and – Lionel Z. Glancy, Esq. Robert V. Prongay, Esq. Lesley F. Portnoy, Esq. Charles H. Linehan, Esq. Pavithra Rajesh, Esq. GLANCY PRONGAY & MURRAY LLP 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 Telephone: (310) 201-9150 Facsimile: (310) 201-9160 ARS NATIONAL: Vitanza-Stephens Files FDCPA Suit in E.D. New York ---------------------------------------------------------------- A class action lawsuit has been filed against ARS National Services Inc. The case is styled as Joann Vitanza-Stephens on behalf of himself and all others similarly situated, Plaintiff v. ARS National Services Inc., Defendant, Case No. 2:19-cv-02408 (E.D. N.Y., April 25, 2019). The Plaintiff filed the case under the Fair Debt Collection Practices Act. ARS National Services, Inc. offers accounts receivable management services. It caters to financial services organizations; banks; and credit card companies. The company is based in Escondido, California.[BN] The Plaintiff is represented by: Mitchell L. Pashkin, Esq. 775 Park Avenue, Ste. 255 Huntington, NY 11743 Phone: (631) 335-1107 Email: mpash@verizon.net ASCENDA USA: Charlot FLSA Suit Transferred From Arizona to Colorado ------------------------------------------------------------------- Samantha Charlot, Individually and on behalf of all others similarly situated v. Ascenda USA, Inc. d/b/a 24-7 InTouch, An Arizona Corporation, Case No. 2:19-cv-00333, was transferred on April 16, 2019, from the U.S. District Court for the District of Arizona to the U.S. District Court for the District of Colorado (Denver). The Colorado District Court Clerk assigned Case No. 1:19-cv-01112 to the proceeding. The lawsuit is a collective action to recover overtime wages and liquidated damages brought pursuant to the Fair Labor Standards Act.[BN] The Plaintiff is represented by: Nicholas J. Enoch, Esq. Corey R. Feltre, Esq. Stanley Lubin, Esq. LUBIN & ENOCH, P.C. 349 North Fourth Avenue Phoenix, AZ 85003-1505 Telephone: (602) 234-0008 Facsimile: (602) 626-3586 E-mail: nick@lubinandenoch.com corey@lubinandenoch.com stan@lubinandenoch.com - and - Austin W. Anderson, Esq. Clif Alexander, Esq. ANDERSON ALEXANDER, PLLC 819 North Upper Broadway Corpus Christi, TX 78401 Telephone: (361) 452-1279 Facsimile: (361) 452-1284 E-mail: austin@a2xlaw.com clif@a2xlaw.com ASUS COMPUTER: Brekhus Suit Moved to N.D. California Court ---------------------------------------------------------- The case, Edward Brekhus, an individual, on behalf of himself, the general public, and those similarly situated, the Plaintiff, vs. ASUS Computer International, the Defendant, Case No. CGC-18-571553, was removed from the Superior Court of California, San Francisco County, to the U.S. District Court for the California Northern District (San Francisco) on April 29, 2019. The Northern District of California Court Clerk assigned Case No. 3:19-cv-02304 to the proceeding. The suit demands $5,000,000,000. AsusTek is a Taiwan-based multinational computer and phone hardware and electronics company headquartered in Beitou District, Taipei, Taiwan.[BN] The Plaintiff appears pro se. Attorneys for ASUS Computer: Robert Brett Bader, Esq. SACKS, RICKETTS & CASE LLP 177 Post Street, Suite 650 San Francisco, CA 94108 Telephone: (415) 504-3148 E-mail: rbader@srclaw.com AT&T MOBILITY: Morrison Sues over Collection of Geolocation Data ---------------------------------------------------------------- A class action lawsuit seeks redress against AT&T for its alleged reckless and negligent violations of customer privacy rights. The Plaintiff and Class Members are AT&T customers. The action arises out of Defendant's collection of geolocation data and the unauthorized dissemination to third-parties of the geolocation data collected from its users' cell phones. According to the complaint, AT&T admittedly sells customer geolocation data to third-parties, including but not limited to data aggregators, who in turn, are able to use or resell the geolocation data with little or no oversight by AT&T. The case is captioned as TYLER MORRISON 4217 SKYVIEW BALTIMORE, MD 21211 on his own behalf and on behalf of all others similarly situated, the Plaintiffs, vs. AT&T MOBILITY, LLC 1025 Lenox Park Blvd. Atlanta, GA 30319 Serve on: Department of Assessment and Taxation Corporate Charter Division 301 W. Preston Street Room 801 Baltimore, MD 21201, the Defendant, Case No. 1:19-cv-01257-JKB (D. Md., April 29, 2019).[BN] Attorneys for the Plaintiffs: Cory L. Zajdel, Esq. Jeffrey C. Toppe, Esq. David M. Trojanowski, Esq. Z LAW, LLC 2345 York Road, Ste. B-13 Timonium, MD 21093 Telephone: (443) 213-1977 E-mail: clz@zlawmaryland.com jct@zlawmaryland.com dmt@zlawmaryland.com ATONOMI LLC: Hunichen Seeks Return of $25MM Under Wash. Sec. Act ---------------------------------------------------------------- CHRIS HUNICHEN, individually and on behalf of all others similarly situated, Plaintiff, v. Atonomi LLC, a Delaware LLC, CENTRI Technology, Inc., a Delaware Corporation, Vaughan Emery, David Fragale, Rob Strickland, Kyle Strickland, Don Deloach, Wayne Wisehart, Woody Benson, Michael Mackey, James Salter, and Luis Paris, Defendants, Case No. 2:19-cv-00615 (W.D. Wash., April 25, 2019) is a suit seeking the return of approximately $25,000,000, together with statutory interest and attorneys' fees, which Defendants procured from investors through the sale of unregistered securities in violation of the Washington Securities Act. The Act forbids the sale of unregistered securities, and allows purchasers of unregistered securities to assert joint and several liability against anyone whose acts were substantial contributing factors in the sales transaction. The Act requires sellers and controllers to return the purchase price of unregistered securities plus statutory 8% interest from the date of sale, together with reasonable attorneys' fees. In spring 2018, Atonomi LLC ("Atonomi"), a wholly owned subsidiary of CENTRI Technologies, Inc. ("CENTRI"), raised approximately $25,000,000 through the sale of unregistered securities through an "Initial Coin Offering," or "ICO." Atonomi as seller, and the remaining defendants, as persons who substantially contributed to the Atonomi ICO, thereby violated the WSA through their sale of unregistered securities they called "coins," or "tokens," which they sold in the ICO. The securities sold in the ICO were neither registered as required under the Act, nor subject to any exemption from registration. The ICO resulted in the sale of approximately $25,000,000 in unregistered securities, and therefore every defendant is jointly and severally liable for $25,000,000 in refunded sales proceeds, together with 8% interest dating from the spring 2018 sale, and attorneys' fees, says the complaint. Plaintiff Chris Hunichen invested $191,250 in the Atonomi ICO on February 22, 2018. Defendant Atonomi is a Delaware Limited Liability Company with a principal place of business in Seattle, Washington.[BN] The Plaintiff is represented by: Joel B. Ard, Esq. Ard Law Group PLLC P.O. Box 11633 Bainbridge Island, WA 98110 Phone: (206) 701-9243 - and - Angus F. Ni, Esq. AFN Law PLLC 506 2nd Ave, Suite 1400 Seattle, WA 98104 Phone: (646) 543-7294 AVENTURA CJ: Fente Sues Over Unsolicited Telemarketing Under FLSA ----------------------------------------------------------------- Manuel Fente Jr., individually and on behalf of all others similarly situated, Plaintiff, v. Aventura CJ, LLC d/b/a Aventura Chrysler Jeep Dodge Ram, Defendant, Case No. 1:19-cv-21597 (S.D. Fla., April 25, 2019) seeks to secure redress for violations of the Telephone Consumer Protection Act ("TCPA"). To promote its services, Defendant engages in unsolicited marketing, harming thousands of consumers in the process. This case arises from Defendant's unauthorized text messages and calls to cellular subscribers who never provided Defendant with prior express consent, as well as cellular subscribers who expressly requested not to receive Defendant's text messages. As a result, Defendant caused thousands of text messages and calls to be sent to the cellular telephones of Plaintiff and Class Members who either never provided Defendant with consent to contact them or who had revoked any prior express consent, says the complaint. Plaintiff is a natural person who was a resident of Miami-Dade County, Florida. Defendant is an automotive dealership that sells vehicles for individuals and businesses.[BN] The Plaintiff is represented by: Andrew J. Shamis, Esq. Garrett O. Berg, Esq. SHAMIS & GENTILE, P.A. 14 NE 1st Avenue, Suite 1205 Miami, FL 33132 Phone: 305-479-2299 Email: ashamis@shamisgentile.com gberg@shamisgentile.com BANK OF AMERICA: Lopez et al. Seek to Certify Class of Employees ---------------------------------------------------------------- In the class action lawsuit LAURA LOPEZ, SAM WILLIS, individually and on behalf of all others similarly situated, the Plaintiffs, vs. BANK OF AMERICA, NATIONAL ASSOCIATION and DOES 1 through 10, inclusive, the Defendants, Case No. 3:18-cv-02346-VC (N.D. Cal.), the Plaintiffs will move the Court on June 27, 2019, for class certification of: "employees of Defendant Bank of America ("BofA") employed as Small Business Bankers ("SBB") in California from March 14, 2013 to the present." The Plaintiffs move for class certification of their claim for overtime compensation brought pursuant to the state's Labor Code. The Plaintiffs allege they have been misclassified as exempt and not paid overtime compensation for overtime hours worked. The Defendant is relying primarily on the outside sales exemption which requires that the employee be outside the employer’s place of business most of the time, the lawsuit says.[CC] Attorneys for the Plaintiffs and the putative class: Edward J. Wynne, Esq. George R. Nemiroff, Esq. WYNNE LAW FIRM Wood Island 80 E. Sir Francis Drake Blvd., Ste. 3G Larkspur, CA 94939 Telephone: (415) 461-6400 Facsimile: (415) 461-3900 E-mail: ewynne@wynnelawfirm.com gnemiroff@wynnlawfirm.com BARTELLHOTELS MANAGEMENT: Does not Pay Proper Wages, Sanchez Says ----------------------------------------------------------------- ROSA MORALES SANCHEZ, individually and on behalf others similarly situated, Plaintiff, v. BARTELLHOTELS MANAGEMENT COMPANY, a California corporation; and DOES 1 through 20, inclusive, Defendants, Case No. 37-2019-00021555-CU-OE-CTL (Cal. Super. Ct., San Diego Cty., April 25, 2019) seeks monetary relief against Defendants on behalf of herself and all others similarly situated in California to recover, among other things, unpaid wages and benefits, interest, attorneys' fees, costs and expenses. Through this action, Plaintiff alleges that Defendants have engaged in a systematic pattern of wage and hour violations unfair the California Labor Code and Industrial Welfare Commission ("IWC") Wage Orders, all of which contribute to Defendants' deliberate unfair competition. The Defendants knew or should have known that Plaintiff and Class Members were entitled to receive wages for all time worked (including minimum wages and overtime wages) and that they were not receiving all wages earned for work that was required to be performed in violation of the Labor Code and IWC Wage Orders, notes the complaint. Plaintiff was employed by Defendants as non-exempt employees at Defendants' California business locations. Defendants operate hotels in California.[BN] The Plaintiff is represented by: SAMUELA. WONG, ESQ. KASHIF HAQUE, ESQ. JESSICA L. CAMPBELL, ESQ. AEGIS LAWFIRM, PC 9811 Irvine Center Drive, Suite 100 Irvine, CA 92618 Phone: (949) 379-6250 Facsimile: (949) 379-6251 BCC FOOD: Castillo Seeks Unpaid Overtime Wages for Managers ----------------------------------------------------------- JULIO CASTILLO, on behalf of himself and others similarly situated, Plaintiff, v. BCC FOOD HALL LLC, a Florida Limited Liability Company, d/b/a LA CENTRALE, and JACOPO GIUSTINIANI, individually, Defendants, Case No. 2:19-cv-01632-GCS-CMV (S.D. Ohio, April 26, 2019) is an action on behalf of Plaintiff and other current and former employees of Defendants who have worked as salaried "Assistant Managers," however variously titled, seeking unpaid overtime wages, liquidated damages, and the costs and reasonable attorneys' fees of this action under the provisions of the Fair Labor Standards Act of 1938 ("FLSA"). Throughout Plaintiff's employment with Defendants during the 3-year statute of limitations period between approximately March 2018 and December 2018, Plaintiff regularly worked in excess of 40 hours per week but Defendants failed to pay Plaintiff time and one-half wages for all of his actual overtime hours worked each week as required by the FLSA, asserts the complaint. Plaintiff was hired by Defendant in the position known as "Assistant Retail Manager," a/k/a "Assistant Manager," in approximately March 2018. BCC FOOD HALL LLC, a Florida Limited Liability Company, d/b/a LA CENTRALE and JACOPO GIUSTINIANI, have owned and operated an Italian food hall.[BN] The Plaintiff is represented by: Keith M. Stern, Esq. KEITH M. STERN LAW OFFICE OF KEITH M. STERN, P.A. 80 SW 8th Street, Suite 2000 Miami, FL 33130 Phone: (305) 901-1379 Email: employlaw@keithstern.com - and - Hazel Solis Rojas, Esq. LAW OFFICE OF HAZEL SOLIS ROJAS, P.A. 3105 NW 107th Avenue, Suite 400 Doral, FL 33172 Phone: (305) 558-8402 Email: hazel@solisrojaslaw.com BLUE CROSS: Wun-Ling Suit Removed From Super. Ct. to C.D. Calif. ---------------------------------------------------------------- The lawsuit titled Wun-Ling Chang, M.D., Inc. v. Blue Cross of California, et al., Case No. 19STCV02777, was removed on April 16, 2019, from the Superior Court of the State of California for the County of Los Angeles to the U.S. District Court for the Central District of California (Los Angeles). The District Court Clerk assigned Case No. 2:19-cv-02930-VAP-JC to the proceeding. The lawsuit arises from insurance-related disputes.[BN] Plaintiff Wun-Ling Chang, M.D., Inc., on behalf of itself and all others similarly situated, is represented by: Adrian J. Barrio, Esq. Howard Loring Rose, Esq. Robert S. Gianelli, Esq. GIANELLI AND MORRIS ALC 550 South Hope Street Suite 1645 Los Angeles, CA 90071 Telephone: (213) 489-1600 Facsimile: (213) 489-1611 E-mail: adrian.barrio@gmlawyers.com loring.rose@gmlawyers.com rob.gianelli@gmlawyers.com - and - Christopher D. Edgington, Esq. Don A. Ernst, Esq. M. Taylor Ernst, Esq. ERNST LAW GROUP 1020 Palm St. San Luis Obispo, CA 93401 Telephone: (805) 541-0300 Facsimile: (805) 541-5168 E-mail: ce@ernstlawgroup.com dae@ernstlawgroup.com te@ernstlawgroup.com Defendants Blue Cross of California doing business as: Anthem Blue Cross, and Anthem Blue Cross Life and Health Insurance Company are represented by: Amir Shlesinger, Esq. Kenneth N. Smersfelt, Esq. Benjamin Charles Watson, Esq. REED SMITH LLP 355 South Grand Avenue Suite 2900 Los Angeles, CA 90071-1514 Telephone: (213) 457-8000 Facsimile: (213) 457-8080 E-mail: ashlesinger@reedsmith.com ksmersfelt@reedsmith.com bwatson@reedsmith.com BP EXPLORATION: Claims Admin to Show Settlement Acct. Justification ------------------------------------------------------------------- In the case, BP EXPLORATION & PRODUCTION, INCORPORATED; BP AMERICA PRODUCTION COMPANY; BP, P.L.C., Requesting Parties-Appellants, v. CLAIMANT ID 100195328, Objecting Party-Appellee, Case No. 18-30562 (5th Cir.), Judge Carl E. Stewart of the U.S. Court of Appeals for the Fifth Circuit remanded to the district court in order to remove the expenses from the calculation of Variable Profit that correspond with related-party revenue, or to have the Claims Administrator provide a sufficient accounting justification demonstrating there is no violation of the Settlement Agreement. The case arises out of the Settlement Agreement negotiated between BP and class action representatives in response to the catastrophic discharge of oil after BP's Deepwater Horizon offshore drilling rig exploded and sank in 2010. The Settlement Agreement permits individuals and entities that experienced economic and property damage from that disaster to recover from BP through a Court Supervised Settlement Program. Business Economic Loss claims are calculated under the Settlement Agreement by comparing the "actual profit of a business during a defined post-spill period in 2010 to the profit that the claimant might have expected to earn in the comparable post-spill period of 2010." There are several steps used to calculate a claimant's total award under the Settlement Agreement. The appeal focuses on the calculation of "Step 1 Compensation." That compensation reflects the reduction in a claimant's profit between a period selected by the claimant that post-dates the Deepwater Horizon discharge of oil into the Gulf of Mexico, called "the 2010 Compensation Period," and comparable months of the "Benchmark Period" prior to the discharge. Step 1 Compensation is a calculation of any reduction in Variable Profit from the earlier period to the later one. Variable Profit is the sum of the monthly revenue over the relevant period minus "the corresponding variable expenses from revenue over the same time period." At issue in the appeal is Policy 328 v.2 adopted by the Claims Administrator. It directs the Settlement Program's accountants to review claims to exclude in their Business Economic Loss calculations any income of the kind "not typically earned as revenue under the normal course of operations." The Policy directs exclusion of "related party transactions that are not arm's length transactions." It also states that the "Claims Administrator in his discretion may require that the claimant provide further explanation and/or additional documentation underlying the monthly revenue and related expense accounts in question." The claimant operates a motor vehicle dealership. The claimant filed a claim under the Settlement Agreement in March 2013. The Claims Administrator requested information concerning transactions between the claimant and two related entities. The claimant submitted the information, which generally showed that certain vehicles purchased by the claimant were sold to the two related entities at cost. The Claims Administrator could not determine whether transactions between the claimant and the related entities were arms-length transactions, and therefore decided to exclude the revenue from those transactions due to Policy 328 v.2. It did not exclude the earlier costs of those same vehicles from the calculation. The Claims Administrator ultimately awarded the claimant about $2.5 million. The central point on the appeal is that the Claims Administrator calculated Variable Profit for the post-disaster period by removing related-party revenue from the revenue total for that period but did not remove the corresponding related-party expenses. The result was that the Variable Profit for the post-disaster period was lower, i.e., the loss was greater, than if the related-party revenue remained in the calculation or the related-party expenses had been removed. As the Variable Profit in the period after the disaster decreases, the award for lost profits to the claimant increases. BP sought review of that award by an Appeal Panel. BP challenged the Claims Administrator's treatment of the claimant's related-party transactions. BP claimed that the Claims Administrator erred by failing to remove corresponding related-party expenses when it removed the related party revenue from the Variable Profit calculations. BP's appeal included a proposed award of $0, whereas the claimant's proposed award was the amount awarded by the Claims Administrator. The Appeal Panel ruled in favor of the claimant, finding that it was proper to exclude the related-party revenue from the calculation of compensation and that the related-party expenses were properly included because the claimant had to buy and pay for the vehicles that it sold to the related party at cost. Pursuant to the "baseball appeals" process required by the Settlement Agreement in which an Appeal Panel selects the party's Final Proposal closest to the correct result "and no other amount," the claimant's Final Proposal was accepted and BP's was rejected. BP then sought discretionary review in the district court, which was denied. Judge Stewart concludes that the Settlement Agreement is not being followed given the manner in which Policy 328 v.2 is being applied, or that an inadequate explanation for that approach has been provided. It is also the case that several examples of the application of this Policy appear to exist. Consequently, the decision not reviewed by the district court actually contradicted or misapplied the Settlement Agreement. Therefore, with respect, he concludes the district court abused its discretion when it declined to grant review. The Judge remanded to the district court in order to remove the expenses from the calculation of Variable Profit that correspond with related-party revenue, or to have the Claims Administrator provide a sufficient accounting justification demonstrating there is no violation of the Settlement Agreement. The claimant's request for sanctions is denied. A full-text copy of the Court's April 3, 2019 Order is available at https://is.gd/rmLokF from Leagle.com. Don Keller Haycraft -- dkhaycraft@liskow.com -- for Requesting Party-Appellant. Robert H. Murphy -- rmurphy@mrsnola.com -- for Objecting Party-Appellee. Peter Brooks Sloss -- psloss@mrsnola.com -- for Objecting Party-Appellee. James Andrew Langan , for Requesting Party-Appellant. Brett Salvador Lala -- brett@gctaxlaw.com -- for Objecting Party-Appellee. Devin Chase Reid -- dcreid@liskow.com -- for Requesting Party-Appellant. Jeffrey Bossert Clark, Sr., for Requesting Party-Appellant. Aaron Lloyd Nielson, for Requesting Party-Appellant. George W. Hicks, Jr., for Requesting Party-Appellant. David Weiner -- deweiner@ebglaw.com -- for Requesting Party-Appellant. Paul Desbon Cordes, Jr. -- paul@gctaxlaw.com -- for Objecting Party-Appellee. BROOKLYN HISTORICAL: Cartagena Seeks Overtime Pay ------------------------------------------------- MARGARJTA CARTAGENA, individually and on behalf of all others similarly situated, the Plaintiff, vs, THE BROOKLYN HISTORICAL SOCIETY, OCEAN GROUP INC., and JASON PffiTRANGELI, PATRICK VALENTINE, BEATRICE PORTO, and CELESTINO MENDEZ, as individuals, the Defendants, Case No. cv-19-2507 (E.D.N.Y., April 29, 2019). seeks to recover overtime pay puruant to the Fair Labor Standards Act and the New York Labor Law. According to the complaint, Ms. Cartagena was employed by Defendants from September 2010 until April 2018. Her primary duties were as a cleaner, while performing other miscellaneous duties. She worked approximately 84 or more hours per week at The Brooklyn Historical Society from in or around April 2013 until in or around April 2018. But Defendants did not pay Plaintiff time and a half for hours worked over 40, a blatant violation of the overtime provisions contained in the FLSA and NYLL. The Defendants willfully failed to post notices of the minimum wage and overtime wage requirements in a conspicuous place at the location of their employment as required by both the NYLL and the FLSA. The Defendants willfully failed to keep accurate payroll records as required by both NYLL and the FLSA. As a result of these violations of Federal and New York State labor laws, the Plaintiff seeks compensatory damages and liquidated damages.[BN] Attorneys for the Plaintiff: Roman Avshallunov, Esq. HELEN F. DALTON & ASSOCIATES, P.C. 80-02 Kew Gardens Road, Suite 601 Kew Gardens, NY 11415 Telephone: 718-263 -9591 CANADIAN FOOTBALL: Still in Discussions Over Concussion Case ------------------------------------------------------------ Gord Holder, writing for Ottawa Citizen, reports that the Canadian Football League is still in discussions with representatives of plaintiffs in a four-year-old class-action lawsuit over concussions, but there's still no guarantee that those talks will lead to a settlement, CFL commissioner Randy Ambrosie said April 3. "We're actively pursuing a resolution. I'd say that, like most things that relate to the Canadian Football League and the people I get to work with, they want to do good work and they want to do good things, and I live that every day," Ambrosie said in an interview following his 52-minute appearance before the House of Commons Subcommittee on Sports-Related Concussions. "But you know what? We go into this issue with the goal of ultimately resolving it in a positive, constructive way and I think that we are on that path. "Of course, between here and there, you don't know. But what I can tell you is the way we approach these issues, it's done honourably and it's done with the intention of a positive outcome." The class-action lawsuit was filed in 2015, with former CFL players Eric Allen and Korey Banks as representative plaintiffs. Since then, more than 200 other former players or their families have signed on, seeking damages for every player who practised or played games with CFL teams between 1952 and 2014. That group includes Canadian Football Hall of Fame inductee Alondra Johnson, a linebacker with the B.C. Lions, Calgary Stampeders and Saskatchewan Roughriders between 1989 and 2004, plus the families of former Ottawa Rough Riders Rod Woodward, Gary Schreider and Dennis Duncan. The lawsuit claimed the CFL and its teams knew or ought to have known about the long-term health risks from concussions. That claim has not been tested in court or in arbitration. A separate grievance filed by former CFL receiver Arland Bruce, who also claimed he was allowed to return to game action even though he was still experiencing symptoms from a concussion, is in arbitration. In March 2018, the Supreme Court of Canada decided not to hear an appeal of British Columbia court rulings that required Bruce to go to arbitration because he had been a member of the CFL Players' Association. Ambrosie said the Bruce grievance was "part of that overall conversation, but I can't comment specifically on that case." [GN] CARE.COM INC: Block & Leviton Files Securities Class Action ----------------------------------------------------------- Block & Leviton LLP (www.blockesq.com), a Boston based securities litigation firm representing investors nationwide, has filed a securities fraud class action against Care.com, Inc. (NYSE: CRCM) and certain of its officers alleging violations of the federal securities laws. The Complaint, filed in the United States District Court, District of Massachusetts (Boston), located at 1 Courthouse Way, Boston, Massachusetts, 02210, and captioned Toussaint v. Care.com, Inc., et al., No. 19-cv-10628, alleges that between March 27, 2015 and April 1, 2019 (the "Class Period"), Defendants made false and/or misleading statements, as well as failed to disclose material adverse facts, with respect to the manner in which the Company vets the caregivers and day-care providers listed on its website. A judge has not yet been assigned. If you purchased Care.com shares during the Class Period and wish to serve as a lead plaintiff, you must move the Court no later than June 3, 2019. As a member of the class, you may seek to file a motion to serve as a lead plaintiff or take no action and remain an absent class member. If you wish to become involved in the litigation or have questions about your legal rights, you are encouraged to contact attorney Dan DeMaria at (617) 398-5660, by email at dan@blockesq.com, or by visiting http://shareholder.law/care. Block & Leviton LLP was recently ranked 4th among securities litigation firms by ISS for recoveries in 2017. The firm represents many of the nation's largest institutional investors and numerous individual investors in securities litigation throughout the country. Indeed, its lawyers have recovered billions of dollars for its clients. CONTACT: Dan DeMaria, Esq. BLOCK & LEVITON LLP Tel: (617) 398-5660 260 Franklin Street, Suite 1860 Boston, MA 02110 Email: dan@blockesq.com [GN] CAVALRY PORTFOLIO: Wallace Files FDCPA Suit in E.D. New York ------------------------------------------------------------ A class action lawsuit has been filed against Cavalry Portfolio Services, LLC. The case is styled as Zakema T. Wallace individually and on behalf of all others similarly situated, Plaintiff v. Cavalry Portfolio Services, LLC, Defendant, Case No. 1:19-cv-02425 (E.D. N.Y., April 25, 2019). The Plaintiff filed the case under the Fair Debt Collection Practices Act. Cavalry Portfolio Services, LLC provides financial resolution services. Its services cover various areas, such as collection account and debt control.[BN] The Plaintiff is represented by: Craig B. Sanders, Esq. Barshay Sanders, PLLC 100 Garden City Plaza, Suite 500 Garden City, NY 11530 Phone: (516) 203-7600 Fax: (516) 281-7601 Email: csanders@barshaysanders.com CCC INFO: Denial of Bids to Compel Appraisal in Milligan Affirmed ----------------------------------------------------------------- In the case, LORENA M. MILLIGAN, individually and on behalf of all others similarly situated, Plaintiff-Appellee, v. CCC INFORMATION SERVICES INC., Defendant-Appellant, GEICO GENERAL INSURANCE COMPANY, Defendant-Appellant, Docket Nos. 18-1405-cv, 18-1407-cv (La. App.), Judge Gerald E. Lynch of the U.S. Court of Appeals for the Second Circuit affirmed the U.S. District Court for the Eastern District of New York's order denying GEICO's and CCC's motions to compel Milligan to comply with a provision of her policy requiring her to submit disputes over the amount of loss to a panel of appraisers. Milligan leased a 2015 Lexus automobile in March 2015. The lease agreement with Lexus Financial Services, the company from which she leased the Lexus, stated the purchase price of the car as $51,400. Milligan obtained an insurance policy with GEICO to cover bodily injury and property damage to the Lexus. Approximately two months after leasing the vehicle, Milligan was involved in a rollover accident that resulted in the Lexus being damaged beyond repair. Shortly thereafter, Milligan submitted a claim to GEICO. GEICO obtained a Market Valuation Report from CCC, which valued Milligan's vehicle at $45,924. GEICO paid Milligan's lienholder, Toyota Lease Trust, $45,924 on the claim. On Jan. 15, 2016, Milligan filed the putative class action complaint asserting claims against GEICO and CCC for breach of contract, negligence, unjust enrichment, and violations of New York insurance law ("Regulation 64"), and New York General Business Law Section 349 (which bans unfair and deceptive trade practices), seeking damages and declaratory and injunctive relief. The complaint invokes federal jurisdiction pursuant to the Class Action Fairness Act of 2005. The thrust of Milligan's complaint is that GEICO violated Regulation 64, a New York State insurance regulation that requires an insurer, in the case of a total loss of a current model year vehicle, to reimburse the owner for the reasonable purchase price less any applicable deductible and depreciation allowances. Milligan alleges that her vehicle was a "current model year" automobile as defined by Regulation 64. She contends, however, that rather than paying her the reasonable purchase price of a new identical vehicle on the date of loss less any applicable deductible and depreciation allowances, as required by Regulation 64, GEICO paid Milligan the amount contained in CCC's Market Valuation Report, which calculated her loss using the average of three similar dealer vehicles that were available or recently sold in the marketplace at the time of the valuation. Milligan's complaint sets forth class allegations suggesting that the practices alleged affected many GEICO insureds. On March 8, 2016, GEICO's counsel communicated a demand for appraisal to Milligan's counsel pursuant to Section III of the Policy. In the letter, GEICO demanded, inter alia, suspension of the instant lawsuit and the identification by Milligan of an appraiser to participate in the appraisal process. Milligan's counsel promptly responded, asserting that the demand was untimely, citing correspondence with a GEICO claims representative dated July 21, 2015. The July 2015 communications make clear that by July 3, 2015, Milligan had already filed a claim with GEICO and GEICO had already paid $45,924 to Toyota Lease Trust. Milligan's counsel further disputed that the amount paid was the correct amount owed under the Policy. GEICO and CCC then moved to dismiss Milligan's complaint and to compel appraisal. The district court referred the motions to Magistrate Judge Gary R. Brown for a Report and Recommendation ("R&R"). Judge Brown then issued an R&R that recommended granting in part and denying in part the Defendants' motions to dismiss and denying the motion to compel appraisal. The R&R concluded that Milligan's breach of contract claim against GEICO was well pleaded. The R&R also recommended dismissing Milligan's claim under Regulation 64 because that statute does not contain a private right of action, and her negligence claims against both GEICO and CCC because she failed to plead that either company owed her any duty in tort. However, the R&R recommended that Milligan's claim for deceptive business practices, pursuant to New York General Business Law Section 349, proceed against both GEICO and CCC. Finally, the R&R recommended that the district court denies GEICO's motion to compel appraisal. The R&R also suggested that appraisal was inappropriate in the case because the appraisal sought would effectively constitute an opinion on the extent and nature of the coverage provided under the Policy, and under New York law an appraiser may not resolve legal questions regarding interpretation of the Policy. The district court adopted the R&R in its entirety. GEICO and CCC timely filed notices of appeal seeking the Court's review of the district court's denial of their motions to compel appraisal. Judge Lynch finds that Milligan's complaint does not explain what she believes would satisfy Regulation 64's requirement that she be paid the reasonable purchase price on the date of loss of a new identical vehicle. At oral argument, however, her counsel clarified that in Milligan's view, the Regulation requires the insurer to pay her the sticker price of a new identical vehicle. GEICO, defending the methodology applied by CCC, contends that Regulation 64 permits it to determine the reasonable purchase price of a vehicle as of the date of loss by reference to evidence of the prices actually paid for such vehicles in the relevant market at or about the relevant time. Whichever view is correct, the disagreement presents a legal question regarding the meaning of Regulation 64, which is for the district court to decide. The Judge further concludes that the district court properly denied CCC's motion to compel appraisal. CCC was not a signatory to the Policy and has no other contractual relationship with Milligan. It argues that under the doctrine of equitable estoppel it is entitled to enforce the appraisal provision of the Policy against Milligan. Under certain circumstances we have compelled signatories to an arbitration agreement to arbitrate their claims against non-signatories if the relationship among the parties, the contracts they signed, and the issues that had arisen among them discloses that the issues the nonsignatory is seeking to resolve in arbitration are intertwined with the agreement that the estopped party has signed. However, any right CCC might have to request appraisal on a theory of equitable estoppel is derivative of GEICO's contractual right to do so. As CCC admitted at oral argument, if GEICO has no right to an appraisal CCC would have no right as well. Because the Judge affirms the district court's denial of GEICO's motion to compel appraisal, he similarly affirms the denial of CCC's motion to do the same. For the reasons he stated, Judge Lynch affirmed the order of the district court denying the Defendants' motions to compel appraisal. A full-text copy of the Court's April 3, 2019 Order is available at https://is.gd/oolnAO from Leagle.com. KEITH ALTMAN, Excolo Law Group, Southfield, MI, (Ari Kresch, Excolo Law Group, Southfield, MI, Sharon S. Almonrode -- ssa@miller.law -- Dennis A. Lienhardt, The Miller Law Firm, P.C., Rochester, MI, on the brief) for Plaintiff-Appellee. KATHLEEN LALLY -- kathleen.lally@lw.com -- Latham & Watkins LLP, Chicago, IL, ( Mark S. Mester -- mark.mester@lw.com -- Latham & Watkins LLP, Chicago, IL, Benjamin W. Snyder -- benjamin.w.snyder@lw.com -- Latham & Watkins LLP, Washington, DC, on the brief) for Defendant-Appellant CCC Information Services Inc. MERRIL BISCONE -- merril.biscone@rivkin.com -- Rivkin Radler LLP, Uniondale, NY (Cheryl F. Korman, Rivkin Radler LLP, Uniondale, NY, on the brief) for Defendant-Appellant GEICO General Insurance Company. CENTRAL MAINE POWER: Customers' Class Suit on Hold Until October ---------------------------------------------------------------- Lori Valigra, writing for WGME, reports that a complaint by customers seeking a class-action lawsuit against Central Maine Power for alleged high billing is on hold until the end of October. "The justice wants to see what happens at the [Maine Public Utilities Commission] before ruling on the motion," said Sumner Lipman, Esq., one of the lawyers attempting to gain class-action status for the lawsuit. Lipman made his comments in an update written on March 19, 2019, to Jud Hopkins, the liaison between the lawyers and a Facebook group of more than 7,700 members called CMP Ratepayers Unite. Hopkins shared Lipman's note updating the case on the closed CMP Ratepayers Unite Facebook page. That group states as its mission that it is a forum to unite all CMP customers who have seen a dramatic increase in their energy bill that cannot or will not be explained by CMP. The complaint was first filed in July 2018 in Cumberland County Superior Court, but since has been moved to the Business and Consumer Court in Portland. It initially focused on alleged overbilling and CMP's lack of response to customer complaints, but in August was amended with a complaint alleging fraud in the way CMP tried to blame customers for the high bills. The complaint alleges that more than 97,000 CMP customers have been overcharged 50 percent or more on their utility bills, and another 200,000 customers have been overcharged up to 50 percent. In his update on March 19, Mr. Lipman wrote that the defendants in the case, CMP and its parent, Avangrid, filed a motion to dismiss the complaint on the basis that the PUC has exclusive and primary jurisdiction. The court has not ruled on that motion, he said. However, he said the court stayed the current proceedings until the end of October, halting further legal action on the case in court. "The justice wants to see what happens at the PUC before ruling on the motion," he said. The PUC had initiated an investigation into the high bills in 2018. Many customer bills spiked following the October 2017 wind storm, which coincided with CMP's changeover of its customer billing and customer support systems. The commission launched a full investigation into the high bills in January 2019 after it received a report on the storm response from an independent auditor. The PUC has split what was once one case on the bills and customer service issues into two cases, one focusing on the high rates and CMP's smart meter billing system and the other on customer service. "We'd like to see something done for the people," Hopkins said in a phone interview on March 21 while driving to a two-day technical conference at the PUC on the independent auditor's report. "So far, we have received nothing from CMP and they have shown no accountability for the high rates." "We are hopeful the PUC will represent the public and not a foreign corporation and be accountable for the obvious overbilling and poor customer service," she said. The conference allows intervenors like Hopkins who are involved in the case to get questions answered by the auditor, Liberty Consulting Group of Pennsylvania. Hopkins was accompanied to the PUC meeting by fellow CMP Ratepayers Unite members and intervenors Lauren Loomis and Valery Harris. The Liberty report found that weather, for the large part, was the culprit for high bills, although it did find some irregularities affecting certain customers. The report also blamed CMP management for poor customer service in explaining the problems to ratepayers. However, ratepayers continue to complain about high bills on the CMP Ratepayers Unite Facebook page and in public comments on the PUC website. Lipman said that in response to the court granting a stay, the lawyers for the class-action lawsuit filed separate motions to reconsider that ruling and to modify the order. "If our motion is granted or the order is modified, we will seek to add additional plaintiffs as well as add additional defendants," Lipman wrote. He said he also expects some changes in the legal team representing the plaintiffs. He said attorney John Pottle, Esq. -- jpottle@eatonpeabody.com -- of Eaton Peabody based in Bangor has just been hired to represent the interests of class-action lawsuit before the commission. [GN] CHILDREN'S PLACE: Mendieta to Recoup Unpaid Overtime Wages ---------------------------------------------------------- EDWINS R. MENDIETA, and other similarly-situated individuals, Plaintiff v. THE CHILDREN'S PLACE, INC., Defendant, Case No. 3 1:19-cv-21585-FAM (M.D. Fla., April 25, 2019) is an action to recover money damages for unpaid overtime wages under the laws of the United States. This Court has jurisdiction pursuant to the Fair Labor Standards Act ("FLSA"). The complaint relates that Plaintiff worked more than 40 hours every week period, but he was not paid for overtime hours. Plaintiff clocked in and out, and Defendant was able to check the hours worked by Plaintiff and other similarly situated employees. However, the Defendant willfully failed to pay Plaintiff overtime at the rate of time and a half his regular rate, for every hour that he worked in excess of 40, in violation of the FLSA, says the complaint. Plaintiff was employed by Defendant from December 01, 2003 to April 03, 2019. THE CHILDREN'S PLACE is a specialty retailer of children's clothing and accessories. Defendant has a fleet of stores across Miami-Dade County, the United States and Canada.[BN] The Plaintiff is represented by: Zandro E. Palma, Esq. ZANDRO E. PALMA, P.A. 9100 S. Dadeland Blvd., Suite 1500 Miami, FL 33156 Phone: (305) 446-1500 Facsimile: (305) 446-1502 Email: zep@thepalmalawgroup.com CHOICE HOTELS: Bid to Dismiss Amended DiFlavis FLSA Suit Denied --------------------------------------------------------------- In the case, GINA DIFLAVIS, Plaintiff, v. CHOICE HOTELS INTERNATIONAL, INC. et al., Defendants, Civil Action No. 18-3914 (E.D. Pa.), Judge Gene E.K. Pratter of the U.S. District Court for the Eastern District of Pennsylvania denied Choice Hotel's Motion to Dismiss the amended complaint, including on the alternative, to strike the class allegations. During her brief tenure as a housekeeper at a Clarion Hotel, DiFlavis alleges that she suffered violations of the Fair Labor Standards Act ("FLSA") and Pennsylvania Minimum Wage Act ("MWA"). She now seeks relief, on a class action and collective action basis, on behalf of herself and others similarly situated. Ms. DiFlavis was employed as a full-time hourly housekeeper at the Clarion Hotel in Essington, PA for approximately three months from early -- June 2018 until late-August 2018. She alleges that she was only paid for 36 hours of work per week even though she worked, on average, 50 to 55 hours per week. Ms. DiFlavis also contends that she was not paid an overtime rate of $13.50 per hour when she worked in excess of 40 hours per week. According to Ms. DiFlavis, the Defendants are aware of the violations because they maintain the Rules and Regulations that result in violations. She argues that the Rules and Regulations calculate housekeeper's pay based on work hours and room totals that supervisors enter into the payroll system, not based on actual recorded time and room service records. Ms. DiFlavis asserts that Choice Hotels and Rama are joint employers. Although Rama owned and operated the Essington hotel where she worked, she alleges that Choice Hotels exercised significant operational control over all Clarion Hotels, including establishing, mandating, and implementing the compensation, hours of work, overtime, scheduling and timekeeping Rules and Regulations at issue in this matter and providing training and guidance on these Rules and Regulations to Clarion Hotel owners, general managers, and staff. Choice Hotels moves to dismiss the complaint pursuant to Rule 12(b)(6) or, in the alternative, to strike the collective and class action allegations pursuant to Rule 12(f). Choice Hotels primarily argues that Ms. DiFlavis has not sufficiently alleged that Choice Hotels is a joint employer. Alternatively, it argues that the class and collective action claims should be stricken or limited to the Clarion Hotel in Essington because that is the only hotel where Choice Hotels and Rama are alleged to be joint employers. Based on the allegations in the amended complaint, Judge Pratter finds that Ms. DiFlavis has alleged enough to persuade the Court that it is plausible that Choice Hotels was her joint employer. The Rules and Regulations are such that it appears Choice Hotels had significant oversight over franchisees, which could have led to the alleged overtime violations in the case. The FLSA's broad definition of employer works in Ms. DiFlavis' favor at this early juncture of the case and helps her complaint to survive the motion to dismiss challenge. Choice Hotels can raise these arguments again at summary judgment when the record is more fully developed and the extent of the relationship between the parties is clearer. Choice Hotels also argues that Ms. DiFlavis is required to allege which employer was her "primary employer" and her failure to do so requires dismissal. The Judge finds that Choice Hotels has been adequately notified as to the basis for Ms. DiFlavis' claims. Although it may not ultimately bear out that Choice Hotels was Ms. DiFlavis' joint employer, she has pled enough to survive a motion to dismiss. As to Choice Hotels' move to strike the collective and class action allegations or, in the alternative, limit Ms. DiFlavis' claims to similarly-situated workers at the Clarion Hotel in Essington because that is the only location at which she alleges Choice Hotels and Rama are joint employers, the Judge finds that the case is not among the rare few where the complaint itself demonstrates that the requirements for maintaining a class action cannot be met. Based on the facts pled, it is plausible that a class and collective action may be warranted in the case. And discovery will allow the Court to make a fully informed ruling on the propriety of FLSA conditional certification and Rule 23 class certification once the parties file such motions. For the reasons set out in his Memorandum, Judge Pratter denied Choice Hotel's Motion to Dismiss the amended complaint, including on the alternative, to strike the class allegations. An appropriate order follows. A full-text copy of the Court's April 5, 2019 Memorandum is available at https://is.gd/H87sOh from Leagle.com. GINA DIFLAVIS, FOR HERSELF AND ALL OTHERS SIMILARLY SITUATED, Plaintiff, represented by DAVID J. COHEN -- dcohen@stephanzouras.com -- STEPHAN ZOURAS LLP, JAMES B. ZOURAS, STEPHAN ZOURAS LLP & RYAN F. STEPHAN, STEPHAN ZOURAS LLP. CHOICE HOTELS INTERNATIONAL, INC., Defendant, represented by JOSEPH J. CENTENO -- joseph.centeno@bipc.com -- Buchanan Ingersoll & Rooney PC & JARED PICKELL -- jared.pickell@bipc.com -- Buchanan Ingersoll & Rooney PC. RAMA CONSTRUCTION CO., INC., Defendant, represented by RICHARD J. DEFORTUNA -- rdefortuna@paisnerlitvin.com -- PAISNER LITVIN LLP. CIGNA CORP: Reed Smith Attorney Discusses 2nd Cir. Ruling --------------------------------------------------------- Stephen J. McConnell, Esq. -- smcconnell@reedsmith.com -- of Reed Smith, in an article for Mondaq, reports that when the blog receives a case that is a bit off-center, involving odd facts or a different area of law, we grab it as our weekly writing assignment. If it's a criminal matter, our claim is premised on our stint as a prosecutor. The case is a securities class action, permitting us to relive our days fending off shareholders' actions in the 1980s. Most of those actions were filed by a very, very famous, nay, infamous, plaintiff lawyer in SoCal who ended up in the hoosegow. Every time a company's stock price dropped, it seemed like this guy had a buddy who owned a couple of shares. His firm would tap a couple of computer keys and produce a class action complaint in minutes. The whole thing reeked of sleaze. Good times. At least, those good times are back, baby. Here is one of the better opening paragraphs in a judicial opinion we have read in a while: "This case presents us with a creative attempt to recast corporate mismanagement as securities fraud. The attempt relies on a simple equation: first, point to banal and vague corporate statements affirming the importance of regulatory compliance; next, point to significant regulatory violations; and voila, you have alleged a prima facie case of securities fraud! The problem with this equation, however, is that such generic statements do not invite reasonable reliance. They are not, therefore, materially misleading, and so cannot form the basis of a fraud case." Singh v. Cigna Corp., 2019 WL 102597 (2d Cir. March 5, 2019). The Second Circuit can still occasionally sing when it comes to securities fraud cases. What gave rise to Judge Cabranes's lyricism? A large health services organization bought a Medicare insurer. With the aging of the health services organization's customers, it looked like a smart play. And, at least for a while, it was. Of course any entity doing Medicare business is subject to extensive federal regulations. The acquiring health services organization not only recognized that fact, it embraced it. Indeed, it not only embraced that fact, it bragged about its regulatory compliance. In the "Regulation" section of the company's 2013 Form 10-K, the company said it "established policies and procedures to comply with applicable requirements." Similarly, in a section titled "Medicare Regulations," the company asserted that it "expect[s] to continue to allocate significant resources" to various compliance efforts. In December 2014, the company published a pamphlet titled "Code of Ethics and Principles of Conduct." The pamphlet includes statements from senior executives affirming the importance of compliance and integrity. The 2014 Form 10-K continued the theme, with a statement that the company "expect[s] to continue to allocate significant resources" to "continue to allocate significant resources" to compliance. Sadly, as we all know, regulatory compliance can be hard. During the period these statements were released, the company's Medicare operations experienced a series of compliance failures. The government conducted an extensive audit of the company's Medicare operations and, in early 2016, it informed the company that the company had "substantially failed to comply" with regulatory requirements regarding coverage determinations, appeals, benefits administration, compliance program effectiveness and similar matters. The next day, the company filed a Form 8-K disclosing its receipt of the government audit conclusions and the accompanying sanctions. The -- wait for it (but not too long) -- over the next four days, the company's stock price fell substantially. Then -- wait for it (but not too long) -- barely a week later, this shareholder class action was filed, alleging violations of federal securities laws. The plaintiff claimed that the statements about regulatory compliance were materially misleading, constituting fraud under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Securities and Exchange Commission Rule 10b-5. The district court dismissed the complaint for want of materially false statements and scienter. The Second Circuit did not reach the scienter (meaning deceptive intent) requirement, because it was obvious that the statements about regulatory compliance were not materially false. Focus on that word "material." In the securities world, something is "material" if a reasonable stockholder would rely on it in making a decision whether or not to buy or sell stock. Here, the issue is whether a reasonable stockholder would rely on the statements in question "as representations of satisfactory legal compliance" by the company. The answer was a resounding No. A reasonable stockholder would not "consider these statements important in deciding whether to buy or sell shares of stock." So what? (We envision you asking that question. You are, after all, a bitter and contentious lot.) If you are reading this blog, odds are that you do not do a whole lot of securities litigation. But the notion of materiality is relevant to drug and device litigation. Or, at least, it should be. We might call it causation, but it's really the same thing. It comes down to whether the alleged misstatement truly made any difference. Too many courts presiding over our cases are overly eager to throw the question to the jury as being fact-bound. But if a court in a securities action can indulge in a little bit of common sense, why can't courts in product liability actions? We have seen drug and device plaintiffs allude to statements of regulatory compliance as the bases for fraud claims. But if there's a single consumer out there who decided to ingest a drug or have a device implanted because a company bragged about its regulatory compliance, we will eat our law school Securities casebook. At this moment we are feeling deeply nostalgic about our days as a securities litigator. That cannot be good. [GN] CINETOPIA LLC: Viers Files ADA Suit in W.D. Washington ------------------------------------------------------ A class action lawsuit has been filed against Cinetopia, LLC. The case is styled as David Viers, Vicki March individually and on behalf of all others similarly situated, Oregon Communication Access Project an Oregon Corporation, The Washington Communication Access Project a Washington Corporation, Association of Late Deafened Adults (ALDA) an Illinois Corporation, Plaintiffs v. Cinetopia, LLC, a Washington Limited Liability Company, Defendant, Case No. 3:19-cv-05346 (W.D. Wash., April 25, 2019). The Plaintiff filed the case under the Americans with Disabilities Act. Cinetopia LLC owns and operates movie theaters. It also offers live pre-show music and in-theater restaurant services.[BN] The Plaintiffs are represented by: Conrad Reynoldson, Esq. WASHINGTON CIVIL AND DISABILITY ADVOCATE 4115 ROOSEVELT WAY NE STE B SEATTLE, WA 98105 Phone: (206) 876-8515 Fax: (206) 876-8515 Email: conrad@wacda.com COLONIAL PARKING: Court Grants Bid to Amend Abraha ERISA Suit ------------------------------------------------------------- In the case, Berthe Benyam Abraha, et al., Plaintiffs, v. Colonial Parking, Inc., et al., Defendants, Civil Action No. 16-680 (CKK) (D. D.C.), Judge Colleen Kollar-Kotelly of the U.S. District Court for the District of Columbia granted the Plaintiffs' Motion to Amend to Their Complaint. The Plaintiffs have moved for leave to amend their Complaint. Defendants Colonial and FCE Benefits Administrators, Inc. oppose, citing delay, prejudice, and futility. The Plaintiffs bring the putative class action against their former employer, Colonial, and its benefits plan administrator, FCE, for the Defendants' alleged violations of the Employee Retirement Income Security Act of 1974. In separate counts against Colonial and FCE, the Plaintiffs' two-count Complaint alleges that the Defendants breached various fiduciary, co-fiduciary, and other obligations under ERISA. When both the Defendants moved to dismiss these allegations in the Complaint under Federal Rule of Civil Procedure 12(b)(6), the Court found that the Plaintiffs had stated a claim in nearly all respects. After a hotly contested period of discovery, the Court denied without prejudice the Plaintiffs' motion for class certification, finding that inadequacies in the parties' briefing inhibited the Court's assessment of the merits. Those deficiencies warranted an opportunity for the Plaintiffs to amend their Complaint and seek the Court's leave to file it, if the Defendants would not consent. The parties proceeded to brief the Plaintiffs' motion to amend, punctuated only by an unsuccessful period of mediation. The Plaintiffs' reply brief attached expert reports that the Defendants had marked as confidential or containing confidential information pursuant to the parties'Stipulated Confidentiality Agreement and Protective Order. That public filing drew the Defendants' immediate objections, which resulted in the Court's decision to seal the attachments containing Colonial's expert reports and to defer a decision as to the portion of Colonial's request seeking sanctions for the Plaintiffs' breach of the Protective Order. Briefing having concluded, the Plaintiffs' motion to amend is now ripe for decision. The Court will address Colonial's ripe motion for sanctions in a separate ruling. Judge Kollar-Kotelly finds that the Plaintiffs propose an Amended Complaint that substantially expands their allegations against Colonial and FCE. Their premise for tripling the length of the Complaint is that the voluminous discovery in the matter -- which concluded prior to their motion -- has given the Plaintiffs greater insight into the Defendants' alleged violations of ERISA. Th e Plaintiffs explain that they substantially expanded allegations regarding two original claims in what are now Count One Relating to Excessive Fees and Count Three Relating to the Dependent Coverage. They also describe four new claims that are not identified in the Original Complaint, but purportedly arise from the same breaches of fiduciary duty that were asserted in it. Those new claims consist of a payroll tax claim, an interest earnings claim, an ACEC Plan surplus claim, and a Forge Plan surplus claim. The first three of those "claims" appear to be nestled within Count Two Relating to the ACEC Plan and the DUB Benefit, as evidenced, for example, by the three separate requests for relief falling under Count Two. Count Four Relating to the Forge Plan Surplus clearly covers the last of the Plaintiffs' admittedly new claims. At the threshold, the Judge disposes of the Defendants' efforts to defend against the Plaintiffs' motion based on an incorrect standard. She holds she need not consider the appropriate standard for a motion filed after a scheduled deadline. Rule 15(a) is the correct standard for a motion to amend a complaint that does comply with the Court's schedule. Setting aside Rule 16(b), the Defendants' main argument for undue delay is that the Plaintiffs knew about their new claims for a long time -- but did not seek leave to amend any sooner. Yet, the Judge holds that the delay does not weigh heavily against the Plaintiffs when they attribute their amendments to the fruits of discovery, which concluded only shortly before they filed their motion with the Court's permission. Although the Plaintiffs could have moved sooner without the Court's permission, she cannot say, in the current posture, that their decision not to do so was in error. The Defendants also attribute prejudice to any new claims that would become operative only after discovery has concluded. While Defendants have given some examples of further discovery that they would pursue if the Plaintiffs' Amended Complaint were operative, Defendants have not given the level of detail necessary to win the Court's consent just yet. That deficiency could be remedied through a discovery plan setting forth the parameters, in detail, for Defendants' further discovery. Lastly, Defendants urge various grounds for finding that the Amended Complaint would be futile. The Court need deal only with their arguments that the Amended Complaint would not withstand a motion to dismiss. See In re Interbank Funding Corp. Sec. Litig., 629 F.3d at 218. Notably, the Court already denied, in large part, Defendants' motion to dismiss the operative complaint. It is not immediately apparent that the expanded allegations about excessive fees and dependent coverage render the broader claims more susceptible to dismissal. Nor does the minimal briefing about the merits of Plaintiffs' proposed new claims clearly demonstrate their futility. Moreover, the amended pleading attempts to address the further criteria expressly identified by the Court when it denied the Plaintiffs' motion for class certification. The Plaintiffs incorporate allegations that featured in their class certification briefing but not in the Complaint; allegations pertinent to a "fraudulent concealment" rebuttal to the Defendants' statute of limitations defense; allegations specific to each named Plaintiff; and a proposed class definition derived in part from the class certification briefing. The Judge finds that none of the Defendants' other arguments affect the Court's exercise of its discretion. For the foregoing reasons, and in an exercise of her discretion, Judge Kollar-Kotelly granted the Plaintiffs' Motion to Amend to Their Complaint. The case will proceed under the Plaintiffs' Amended Complaint, which will be separately docketed as of the date. The Defendants will respond to the Plaintiffs' Amended Complaint by no later than April 19, 2019. By no later than April 26, 2019, the parties will submit a notice consisting of a Joint Discovery Plan. That Plan will identify, with specificity, the further discovery that Colonial and FCE propose based on the Amended Complaint, including a timeline for such discovery. Plaintiffs will identify any such discovery that the Defendants already received as to the now-operative claims. Because a premise of the Amended Complaint is that the Plaintiffs already have discovery to support their allegations, the Plaintiffs will not be permitted further discovery. A separate Order accompanies the Memorandum Opinion. A full-text copy of the Court's April 5, 2019 Order is available at https://is.gd/m426DE from Leagle.com. BERTHE BENYAM ABRAHA, as individuals and on behalf of all others similarly situated, ESAYAS AKALU, as individuals and on behalf of all others similarly situated, SAMUEL HABTEWOLED, as individuals and on behalf of all others similarly situated & GEDLU MELKE, as individuals and on behalf of all others similarly situated, Plaintiffs, represented by Susan Ruth Baron & Edward A. Scallet -- ted@eascolaw.com -- EASCOLAW, PLLC. COLONIAL PARKING, INC., Defendant, represented by Attison L. Barnes, III -- abarnes@wileyrein.com -- WILEY REIN LLP. FCE BENEFIT ADMINISTRATORS, INC., Defendant, represented by Michael J. Schrier -- mjschrier@duanemorris.com -- DUANE MORRIS, LLP, Marc A. Koonin -- MAKoonin@duanemorris.com -- DUANE MORRIS LLP, pro hac vice & Robert D. Eassa -- rDEassa@duanemorris.com -- SEDGWICK LLP, pro hac vice. COLUMBUS VILLAGE: Almazo Vidal, et al. Seek Unpaid Wages -------------------------------------------------------- Catalino Faustino Almazo Vidal, Edy Santiago Hernandez Mencia, Elcias Lorenzo Mejia Sapon, Hector Sutuj, Martin Itzep Alvarez, Miguel Alex Quiej Lopez, Ricardo Morales, Ruben Catu Ajmac, Santiago Antonio Lopez, Hermenegildo Miqueas Tayun Ixcoy, Jacinto Francisco Sapon Ajche, Juan Noe Vasquez Baten, Sotero Neri Flores, and Gregorio Lopez Hernandez, individually and on behalf of others similarly situated, Plaintiffs, v. COLUMBUS VILLAGE LLC (D/B/A BAREBURGER), BARE CITY TWO, LLC (D/B/A BAREBURGER), BB ONE, LLC (D/B/A BAREBURGER), EAST SIDE BURGERS LLC (D/B/A BAREBURGER), BB 57 LLC (D/B/A BAREBURGER), GEORGIOS TZANIDAKIS, MICHAEL PITSINOS, EDGAR RAMOS, MANNY DOE, and MARIA DOE, Defendants, Case No. 1:19-cv-03675 (S.D. N.Y., April 25, 2019) seeks unpaid minimum and overtime wages including applicable liquidated damages, interest, attorneys' fees and costs pursuant to the Fair Labor Standards Act of 1938 ("FLSA"), and for violations of the N.Y. Labor Law ("NYLL"), and the "spread of hours" and overtime wage orders of the New York Commissioner of Labor. The complaint asserts that Plaintiffs worked for Defendants in excess of 40 hours per week, without appropriate minimum wage, overtime, and spread of hours compensation for the hours that they worked. Defendants failed to maintain accurate recordkeeping of the hours worked and failed to pay Plaintiffs appropriately for any hours worked, either at the straight rate of pay or for any additional overtime premium. Furthermore, Defendants failed to pay Plaintiffs the required "spread of hours" pay for any day in which they had to work over 10 hours a day. The Defendants maintained a policy and practice of requiring Plaintiffs and other employees to work in excess of 40 hours per week without providing the minimum wage and overtime compensation required by federal and state law and regulations, says the complaint. Plaintiffs are former employees of Defendants who were employed as delivery workers. Defendants operate fast food restaurants located in multiple neighborhoods in Manhattan.[BN] The Plaintiffs are represented by: Michael Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 4510 New York, NY 10165 Phone: (212) 317-1200 Facsimile: (212) 317-1620 COMPLIANCE ENVIROSYSTEMS: Seeks Dismissal of Lewis Class Action --------------------------------------------------------------- A Request for Judicial Intervention was filed on April 17, 2019, in the lawsuit entitled NICHOLAS LEWIS, individually and on behalf of all other persons similarly situated v. COMPLIANCE ENVIROSYSTEMS, LLC, SUEZ WATER ENVIRONMENTAL SERVICES, INC., and SUEZ WATER LONG ISLAND, INC., Case No. 602878/2019 (N.Y. Sup., Nassau Cty., February 28, 2019). The RJI was filed by the Defendants seeking dismissal of the complaint/petition. The action is brought on behalf of Named Plaintiff Nicholas Lewis and a putative class of individuals, who performed construction related work for the Defendants to recover wages and benefits, which the Named Plaintiff and members of the putative class were contractually entitled to receive for work performed in public sewers, including work performed in Nassau County (the "Public Works Projects").[BN] The Plaintiff is represented by: Lloyd R. Ambinder, Esq. Jack L. Newhouse, Esq. VIRGINIA & AMBINDER, LLP 40 Broad Street, 7th Floor New York, NY 10004 Telephone: (212) 943-9080 E-mail: lambinder@vandallp.com jnewhouse@vandallp.com The Defendants are represented by: FERRARA FIORENZA PC 5010 Campuswood Dr. East Syracuse, NY 13057 Telephone: (315) 437-7600 - and - RIVKIN RADLER LLP 926 RXR Plaza West Tower Uniondale, NY 11556-0926 Telephone: (516) 357-3000 Facsimile: (516) 357-3333 CONNECTICUT: Court Grants Bid for Leave to File Amended FAPE Suit ----------------------------------------------------------------- In the case, D.J., through his parent O.W., on behalf of a class of those similarly situated, Plaintiff, v. CONNECTICUT STATE BOARD OF EDUCATION, Defendants, Case No. 3:16-cv-01197 (CSH) (D. Conn.), Judge Charles S. Haight, Jr. of the U.S. District Court for the District of Connecticut granted retroactively the Plaintiff's Motion for Leave to File the Proposed Amended Complaint. Plaintiff D.J., through his parent O.W., brings the putative class action against the Connecticut State Board of Education, alleging violation of the Individuals with Disabilities Education Act ("IDEA"). Plaintiff D.J. is an individual with a disability who turned 21 years old on May 29, 2016. D.J. had been receiving a free appropriate public education ("FAPE") through the Hartford School District until June 30, 2016, the end date of the school year in which he turned 21. D.J. and co-Plaintiff O.W., his parent and guardian, brought the purported class action to establish the rights of Plaintiff D.J. and the class he seeks to represent to a FAPE under the IDEA until the age of 22. Under Connecticut law, a student who has not yet received a regular high school diploma remains eligible for special education through the end of the school year in which that student turns 21 years of age. The IDEA and its implementing regulations state that the obligation to provide a free appropriate public education to children with disabilities between the ages of 3 and 21, inclusive, does not apply to children with disabilities who have graduated from high school with a regular high school diploma. Such a diploma must be fully aligned with State standards. The Plaintiff filed a Complaint on July 15, 2016, alleging that he had not received a high school diploma, and that the FAPE he had been receiving pursuant to the IDEA had terminated at the end of the school year in which he turned 21. The Plaintiff seeks to certify a class of all individuals who would have otherwise qualified to continue receiving a FAPE but for turning 21, because they have not or had not yet earned a regular high school diploma. The Plaintiff also seeks a declaration that the Connecticut laws which terminate the entitlement of Connecticut students receiving a FAPE under the IDEA at the end of the school year in which the student turns 21 are inconsistent with the IDEA "because they apply only to special education students and not to non-special education students. Discovery concluded in August 2017, and in September 2017 the Plaintiff filed a motion seeking class certification and a motion for summary judgment. The motion for summary judgment was accompanied by an affidavit from O.W., D.J.'s parent, stating that D.J. earned a diploma from Hartford Public High School in or about 2013. However, he continued to receive educational and related services from Hartford Public High School until on June 30, 2016. This statement appeared to contradict the Plaintiff's allegation in the Complaint that D.J. had not received a high school diploma. On the basis of O.W.'s sworn statement, the Board challenged the Plaintiff's class certification and summary judgment motions, arguing that D.J.'s claims are moot because he obtained a high school diploma and that, for the same reason, he was not an adequate class representative. In response, the Plaintiff submitted a second affidavit from O.W. stating that officials at Hartford High School offered D.J. a high school diploma from Hartford Public High School in 2013. When D.J was offered this diploma, as his guardian, O.W. refused to accept it. D.J. was taking programs through Hartford High School. O.W. was told that if D.J. accepted the diploma he would not be able to continue with those programs. O.W. understood that the diploma was kept in the school office. Even though Hartford High School said that he could graduate, O.W. knew that he had not learned any skills that would allow him to live independently or to support himself. Starting in 2015, D.J. no longer attended classes at Hartford High School. In light of the facts that had surfaced regarding the Plaintiff's possible receipt of a diploma, the Court issued a Memorandum and Order on March 23, 2018 that raised the issue of standing sua sponte. It concluded that the present record was insufficient to determine the Plaintiff's standing to bring suit, and authorized further discovery on the issue for further consideration at an evidentiary hearing. Consistent with this ruling, the Plaintiff deposed Hartford Board of Education employee Dr. June M. Sellers. Shortly before the scheduled evidentiary hearing, the Plaintiff's counsel informed the Court and the counsel for the Board that, in an effort to resolve the standing issue raised by this Court sua sponte they intended to seek to substitute the current Plaintiff with a different individual and would also seek to file an amended complaint. The Board would not consent to permit amendment. However, the Board indicated "general agreement" that if the amendment were allowed, the current briefing would still apply. On June 15, 2018, the parties informed the Court that the parties had not reached agreement and that the Plaintiff would prepare a motion for leave to file the Amended Complaint. That motion to amend has now been filed by the Plaintiff. Through the motion, the Plaintiff requests leave to file an Amended Complaint that would substitute another individual, designated as A.R., as the Plaintiff in place of D.J. Such amendment, the Plaintiff contends, will avoid unnecessary litigation regarding the standing issue. In that regard, Judge Haight holds that the Plaintiff is mistaken. While Rule 15(a), governing amendments to pleadings, is liberally applied, it does not extend to cases where Plaintiff attempts to use an amendment to cure a standing defect. In consequence, he must first address the threshold issue of whether the Plaintiff can establish standing. He finds that O.W.'s affidavit and Dr. Sellers' deposition testimony indicate that D.J.'s access to a FAPE was terminated because he turned 21 -- not due to his purported high school diploma. This denial of services that the Plaintiff otherwise would have received demonstrates injury for purposes of Article III standing, and is entirely traceable to the Board's enforcement of the regulation at issue. Additionally, the Plaintiff's injury could be redressed by judicial action, such as granting the Plaintiff's request for compensatory education. Having concluded that D.J. has standing, the Judge must now determine whether the Plaintiff should be permitted to amend the Complaint to substitute A.R. as a Plaintiff. He finds that the Defendant has provided no authority suggesting that the potential for increased liability can constitute undue prejudice, and he sees no reason that it should -- the Court "freely grants" discretionary motions to amend, notwithstanding the fact that they rarely seek to narrow the scope of liability. There is good cause to permit amendment. The Plaintiff's motion for class certification and the cross-motions for summary judgment are fully briefed and the parties agree as a general matter that the completed briefing will continue to apply. Re-litigating a substantively identical matter would be wasteful of the parties' and the Court's time and resources: this is the rare case in which permitting amendment is the more expeditious course of action. Finally, the Judge notes that the Plaintiff's claims for prospective and declaratory relief became moot when he turned 22 during the pendency of the litigation. Under these circumstances, courts have routinely held that adding a new representative is "appropriate, or even required," to protect the rights of the proposed class. For the foregoing reasons, Judge Haight granted the Plaintiff's Motion for Leave to File the Proposed Amended Complaint retroactively. The previously filed Amended Complaint becomes the operative complaint in the action. A full-text copy of the Court's April 5, 2019 Ruling is available at https://is.gd/jWR3Yc from Leagle.com. D. J., through his parent O.W., on behalf of a class of those similarly situated, Plaintiff, represented by Jason H. Kim -- jkim@schneiderwallace.com -- Schneider Wallace Cottrell Konecky Wotkyns LLP, pro hac vice, Catherine E. Cushman -- info@disrightsct.org -- Disability Rights Connecticut & Sonja Deyoe -- sld@the-straight-shooter.com -- Law Offices of Sonja L. Deyoe. Connecticut State Board of Education, Defendant, represented by Darren P. Cunningham, Attorney General's Office & Ralph E. Urban, Attorney General's Office. CONSOLIDATED WORLD: Approval of Notice Plan Sought -------------------------------------------------- The Plaintiffs in two class action lawsuits ask the Court for an order: 1. approving a notice plan and forms of notice; and 2. allowing Class members 60 days from the effectuation of Plaintiffs' notice plan to exclude themselves from the Class. The Plaintiffs' notice plan proposes sending individual notice to members of the class who have been identified and utilizing internet media, a press release, a website, and a toll-free number to disseminate notice to members of the class who have not been identified. Plaintiffs' notice administrator has opined that the notice plan described below, which has been approved by numerous other courts in Illinois and elsewhere around the country, will reach over 70% of class members and is the best practicable under the circumstances. The two lawsuits are: "ANGEL BAKOV and JULIE HERRERA, individually and on behalf of all others similarly situated, the Plaintiffs, v. CONSOLIDATED WORLD TRAVEL, INC. d/b/a HOLIDAY CRUISE LINE, a Florida corporation, Defendant, Case No. 1:15-cv-02980 (N.D. Ill.)"; - and - "KINAYA HEWLETT, on Behalf of Herself and all Others Similarly Situated, the Plaintiff, v. CONSOLIDATED WORLD TRAVEL, INC. d/b/a HOLIDAY CRUISE LINE, the Defendant, Case No. 1:17-cv-00973 (N.D. Ill.).[CC] Attorneys for the Plaintiff: Katrina Carroll, Esq. Kyle A. Shamberg, Esq. Jeremy Nash, Esq. LITE DEPALMA GREENBERG, LLC 111 W. Washington Street, Suite 1240 Chicago, IL 60602 Telephone: (312) 750-1265 E-mail: kcarroll@litedepalma.com kshamberg@litedepalma.com jnash@litedepalma.com - and - Yitzchak Kopel, Esq. BURSOR & FISHER P.A. 888 Seventh Avenue New York, NY 10019 Telephone: (646) 837-7127 E-mail: ykopel@bursor.com - and - Jeffrey Grant Brown, Esq. JEFFREY GRANT BROWN P.C. 221 North LaSalle Street, Suite 1414 Chicago, IL 60601 Telephone: (312) 789-9700 E-mail: jeff@jgbrownlaw.com - and - Joseph J. Siprut, Esq. Todd L. McLawhorn, Esq. SIPRUT PC 17 N. State Street, Suite 1600 Chicago, IL 60602 Telephone: (312) 236-0000 E-mail: jsiprut@siprut.com tmclawhorn@siprut.com - and - Robert Ahdoot, Esq. Tina Wolfson, Esq. AHDOOT & WOLFSON, PC 1016 Palm Avenue West Hollywood, CA 90069 Telephone: (310) 474-9111 E-mail: rahdoot@ahdootwolfson.com twolfson@ahdootwolfson.com COTTON PATCH: Norred Files Action Over Subminimum Hourly Wages -------------------------------------------------------------- Ian Norred, Individually, and on behalf of all others similarly situated, Plaintiffs, v. Cotton Patch Cafe, LLC, Defendant, Case No. 3:19-cv-01010-G (N.D. Tex., April 26, 2019) is a complaint against Defendant for violations of the Fair Labor Standards Act ("FLSA"). The complaint alleges that the Defendant has a policy or practice of paying their employee servers, including Plaintiff, subminimum hourly wages under the tip credit provisions of the FLSA. Specifically, Defendant unlawfully (1) failed to inform Plaintiff and Class Members of the tip credit; (2) did not allow Plaintiff and Class Members to retain all of their tips; (3) required Plaintiff and Class Members to perform non-tipped work that was unrelated to Plaintiff and Class Members' tipped occupation (i.e., "dual jobs"); and (4) required Plaintiff and Class Members to perform non-tipped work that, although related to Plaintiff and Class Members' tipped occupation, exceeded 20% of their time worked during each workweek, says the complaint. Plaintiff Ian Norred was employed by Defendant within the three-year period preceding the filing of this lawsuit. Defendant operates a chain of restaurants commonly known as Cotton Patch Cafe with locations in Arkansas, New Mexico, Oklahoma, and Texas.[BN] The Plaintiff is represented by: Drew N. Herrmann, Esq. Pamela G. Herrmann, Esq. HERRMANN LAW, PLLC 801 Cherry St., Suite 2365 Fort Worth, TX 76102 Phone: 817-479-9229 Fax: 817-887-1878 Email: drew@herrmannlaw.com pamela@herrmannlaw.com CUSTOM AUTO: Doss Sues Over Unpaid Overtime Wages ------------------------------------------------- Joshua Doss, Individually and on Behalf of All Those Similarly Situated, Plaintiff v. Custom Auto Service, Inc., and Kevin Strayhorn, Defendants, Case No. 4:19-cv-00296-KGB (E.D. Ark., April 25, 2019) is an action under the Fair Labor Standards Act, ("FLSA"), and the Arkansas Minimum Wage Act ("AMWA"), for declaratory judgment, monetary damages, liquidated damages, prejudgment interest, and costs, including reasonable attorneys' fees, as a result of Defendant's failure to pay Plaintiff overtime compensation for all hours that Plaintiff worked in excess of 40 hours per workweek. According to the complaint, the Defendant schedules Plaintiff to work more than 40 hours per week. During the time that Defendant paid Plaintiff on a piece-rate basis, Defendant did not ever pay Plaintiff one and one-half times Plaintiffs regular rate. In other words, during the time that Defendant paid Plaintiff on a piece-rate basis, Defendant paid Plaintiff no more than his regular piece-rate, even when Plaintiff worked more than 40 hours per week. Plaintiff Doss is a current employee of Defendant. Custom Auto Service, Inc., is an Arkansas for-profit corporation which operates an auto repair business at 401 Custom Lane, Little Rock, Arkansas 72206.[BN] The Plaintiff is represented by: Josh Sanford, Esq. SANFORD LAW FIRM, PLLC One Financial Center 650 South Shackleford Road, Suite 411 Little Rock, AR 72211 Phone: (501) 221-0088 Facsimile: (888) 787-2040 Email: josh@sanfordlawfirm.com DENKA PERFORMANCE: Butler Appeals E.D. La. Judgment to 5th Cir. --------------------------------------------------------------- Plaintiff Juanea L. Butler filed an appeal from a Court ruling in her lawsuit entitled Juanea Butler v. Denka Performance Elastomer LLC, et al., Case No. 2:18-CV-6685, in the U.S. District Court for the Eastern District of Louisiana, New Orleans. As reported in the Class Action Reporter on April 16, 2019, the Hon. Martin Feldman entered an order regarding Consent Motion to Postpone Submission Date and to Extend Time to Oppose Class Certification in the lawsuit. Judge Feldman ruled that the Plaintiff's Motion for Class Certification is dismissed without prejudice, to be re-filed and re-noticed for hearing, if necessary, after the ruling upon the Plaintiff's pending Motion for Leave to File Second Amended Class Action Complaint. The environmental tort litigation arises from the production of neoprene at the Pontchartrain Works Facility ("PWF") in St. John the Baptist Parish. Neoprene production allegedly exposes those living in the vicinity of the PWF to concentrated levels of chloroprene well above the upper limit of acceptable risk, and may result in a risk of cancer more than 800 times the national average. Plaintiff Butler has lived in LaPlace, Louisiana since 1998. She sued the DOH, the DEQ, Denka, and DuPont, seeking class certification, damages, and injunctive relief in the form of abatement of chloroprene releases from her industrial neighbor, the PWF. The appellate case is captioned as Juanea Butler v. Denka Performance Elastomer LLC, et al., Case No. 19-30286, in the U.S. Court of Appeals for the Fifth Circuit.[BN] Plaintiff-Appellant JUANEA L. BUTLER, Individually and as representative of all others similarly situated Danny Dustin Russell, Esq. RUSSELL LAW FIRM, L.L.C. 733 E. Airport Avenue Baton Rouge, LA 70806 Telephone: (225) 307-0088 E-mail: danny@dannyrusselllaw.com Defendant-Appellee DENKA PERFORMANCE ELASTOMER LLC is represented by: James Conner Percy, Esq. JONES WALKER, L.L.P. 8555 United Plaza Boulevard 4 United Plaza Baton Rouge, LA 70809 Telephone: (225) 248-2130 E-mail: jpercy@joneswalker.com Defendant-Appellee E.I. DUPONT DE NEMOURS AND COMPANY is represented by: Deborah DeRoche Kuchler, Esq. KUCHLER POLK WEINER, L.L.C. 1615 Poydras Street New Orleans, LA 70112 Telephone: (504) 592-0691 E-mail: dkuchler@kuchlerpolk.com Defendant-Appellee LOUISIANA STATE, Through the Department of Environmental Quality, is represented by: Lawrence E. Marino, Esq. OATS & MARINO 100 E. Vermilion Street Gordon Square Lafayette, LA 70501 Telephone: (337) 233-1100 Defendant-Appellee LOUISIANA STATE, Through the Department of Health; Incorrectly named as Louisiana State Through the Department of Health and Hospitals, is represented by: Timothy W. Hardy, Esq. ROEDEL, PARSONS, KOCH, BLACHE, BALHOFF & MCCOLLISTER, A.L.C. 8440 Jefferson Highway Baton Rouge, LA 70809 Telephone: (225) 929-7033 E-mail: thardy@roedelparsons.com ELY'S TIRE: Violates FLSA, Fish Suit Asserts --------------------------------------------- KENNETH FISH, individually, on behalf of himself, and all others similarly situated Plaintiff, v. ELY'S TIRE, INC. a Florida corporation, and ELIAS DAMMOUS, individually, Defendants, Case No. 0:19-cv-61068 (S.D. Fla., April 26, 2019) is an action arising under the Fair Labor Standards Act ("FLSA") to seek redress for Defendants' violations of the FLSA. According to the complaint, the Defendants failed to compensate Plaintiff at the required federal minimum wage rate. The Defendants also failed to compensate Plaintiff at the statutorily prescribed overtime rate of time-and-one-half for all hours worked in excess of 40 per week. The wage violations committed by Defendants were willful and/or intentional, as Defendants knew of the minimum wage and overtime requirements of the FLSA and recklessly or intentionally failed to compensate Plaintiff in accordance with such requirements, says the complaint. Plaintiff began working for Defendants as a non-exempt employee and assisted with tire-related services such as changing new and used tires for various vehicles in or about November 2017. ETI operates and specializes in performing tire-related services to automobiles and motorcycles, including computerized alignments, brakes, suspension, and front-end work and was founded by Defendant, DAMMOUS.[BN] The Plaintiff is represented by: JORDAN RICHARDS, ESQ. MELISSA SCOTT, ESQ. USA EMPLOYMENT LAWYERS-JORDAN RICHARDS, PLLC 805 E. Broward Blvd. Suite 301 Fort Lauderdale, FL 33301 Phone: (954) 871-0050 Email: Jordan@jordanrichardspllc.com Jill@jordanrichardspllc.com Melissa@jordanrichardspllc.com Jake@jordanrichardspllc.com Stephanie@jordanrichardspllc.com EVERGREEN ADULT: Fails to Pay Overtime Under FLSA, Lee Suit Says ---------------------------------------------------------------- EUN YONG LEE, JONG KOOK BYEON, CHUNG-KIL CHO, KWON JUN PARK, HYUNG JONG KIM, SU WON CHAE, for themselves and all others similarly situated v. EVERGREEN ADULT DAYCARE CENTER, INC., JAMES KOO, YOUNG YOON, and JOHN DOES or JANE DOES 1–30, Case No. 1:19-cv-02247 (E.D.N.Y., April 17, 2019), alleges that the Defendants have denied proper wage and overtime benefits to their employees, in violation of the Fair Labor Standards Act. Evergreen Adult Daycare Center, Inc., is organized under New York law. The Individual Defendants are officers, managers or employees of Evergreen. The exact identities of the Doe Defendants are presently unknown to the Named Plaintiff. The Defendants operate an adult daycare center located at 150-12 Roosevelt Avenue, in Flushing, New York.[BN] The Plaintiffs are represented by: Michael S. Kimm, Esq. KIMM LAW FIRM 333 Sylvan Avenue, Suite 106 Englewood Cliffs, NJ 07632 Telephone: (201) 569-2880 E-mail: msk@kimmlaw.com EVERYDAY BEAUTY: Lin et al. Seek to Certify Class Action -------------------------------------------------------- Lanqing Lin and other plaintiffs move the Court for an Order: 1. certifying this action as a class action pursuant to Federal Rule of Civil Procedure 23; 2. appointing Plaintiffs Lanqing Lin, Yong Shan Su, Lixian Qian, En Lin Xiao, and Mei Hui Jiang as class representatives; 3. appointing Troy Law, PLLC as class counsel; 4. permitting Plaintiffs to circulate a class action notice by direct mail to the class members; and 5. granting such other relief as the Court deems just and proper. The case is captioned as LANQING LIN, YONG SHAN SU, LIXIAN QIAN, EN LIN XIAO, and MEI HUI JIANG, on their own behalf and on behalf of others similarly situated, and LINGMIN YANG, on her own behalf, the Plaintiffs, v. EVERYDAY BEAUTY AMORE INC.; EVERYDAY BEAUTY ARITAUM CORP.; EVERYDAY BEAUTY MISSHA CORP.; EVERYDAY AMORE LLC; EVERYDAY BEAUTY SHOP, INC.; EVERYDAY GROUP LLC; EVERYDAY BEAUTY ARITAUM LAB INC.; EVERYDAY BEAUTY CORP.; EVERYDAY BEAUTY LG INC.; EVERYDAY BEAUTY NATURE COLLECTION CORP.; EVERYDAY BEAUTY SHISEIDO CORP.; EVERYDAY BEAUTY SUPPLY INC.; JOHN DOE CORP. 1; JOHN DOE CORP. 2; JOHN DOE CORP. 3; JOHN DOE CORP. 4; JOHN DOE CORP. 5; JOHN DOE CORP. 6; JOHN DOE CORP. 7; JOHN DOE CORP. 8; JOHN DOE CORP. 9; JOHN DOE CORP. 10; JOHN DOE CORP. 11; XIU QING SU, and XIN LIN, the Defendants, Case No. 18-cv-00729 (E.D.N.Y.).[CC] Attorneys for the Plaintiffs: John Troy, Esq. 41-25 Kissena Boulevard, Suite 119 Flushing, NY 11355 Telephone: (718) 762-1324 Facsimile: (718) 762-1342 E-mail: troylaw@troypllc.com EXTREME NETWORK: June 20 Settlement Fairness Hearing Set -------------------------------------------------------- The following statement is being issued by Labaton Sucharow LLP regarding the Extreme Networks Securities Litigation: UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION IN RE EXTREME NETWORKS, INC. SECURITIES LITIGATION This Document Relates to: All Actions. CLASS ACTION Master File No. 3:15-cv-04883-BLF SUMMARY NOTICE OF PENDENCY OF CLASS ACTION, PROPOSED SETTLEMENT, AND MOTION FOR ATTORNEYS' FEES AND EXPENSES TO: ALL PERSONS AND ENTITIES THAT PURCHASED OR OTHERWISE ACQUIRED THE PUBLICLY TRADED COMMON STOCK AND EXCHANGE-TRADED CALL OPTIONS, AND/OR SOLD PUT OPTIONS, OF EXTREME NETWORKS, INC., DURING THE PERIOD FROM SEPTEMBER 12, 2013 THROUGH APRIL 9, 2015. YOU ARE HEREBY NOTIFIED, pursuant to an Order of the United States District Court for the Northern District of California, that Lead Plaintiff Arkansas Teacher Retirement System, on behalf of itself and the proposed Settlement Class, and Extreme Networks, Inc. ("Extreme" or "the Company"), Charles W. Berger, Kenneth B. Arola, and John T. Kurtzweil (collectively, the "Individual Defendants," and with the Company, "Defendants"), have reached a settlement in the above-captioned action (the "Action") in the amount of $7,000,000 in cash (the "Settlement Amount") that, if approved by the Court, will resolve all claims in the Action.1 A hearing will be held before the Honorable Beth Labson Freeman of the United States District Court for the Northern District of California in Courtroom 3, 5th Floor, Robert F. Peckham Federal Building & United States Courthouse, 280 South 1st Street, San Jose, CA 95113 at 1:30 p.m. on June 20, 2019 to, among other things, determine whether (1) the Settlement should be approved by the Court as fair, reasonable, and adequate; (2) the Plan of Allocation for distribution of the Settlement Amount, and any interest thereon, less Court-awarded attorneys' fees, Notice and Administration Expenses, Taxes, and any other costs, fees, or expenses approved by the Court (the "Net Settlement Fund") should be approved as fair, reasonable, and adequate; and (3) to approve the application of Lead Counsel for an award of attorneys' fees of no more than 25% of the Settlement Fund (or up to $1,750,000) and payment of expenses of no more than $230,000 from the Settlement Fund, which may include the expenses of Lead Plaintiff pursuant to the Private Securities Litigation Reform Act of 1995. The Court may change the date of the Settlement Hearing without providing another notice. You do NOT need to attend the Settlement Hearing in order to receive a distribution from the Net Settlement Fund. IF YOU ARE A MEMBER OF THE SETTLEMENT CLASS, YOUR RIGHTS WILL BE AFFECTED BY THE SETTLEMENT AND YOU MAY BE ENTITLED TO SHARE IN THE NET SETTLEMENT FUND. If you have not yet received the full Notice of Pendency of Class Action, Proposed Settlement, and Motion for Attorneys' Fees and Expenses (the "Notice") and a Proof of Claim and Release form ("Claim Form"), you may obtain copies of these documents by contacting the Claims Administrator or visiting its website: Extreme Networks, Inc. Securities Litigation, c/o KCC Class Action Services, P.O. Box 505026, Louisville, KY 40233-5026, (866) 526-6266, www.ExtremeNetworksSecuritiesLitigation.com. Inquiries may also be made to Lead Counsel: Labaton Sucharow LLP, Carol C. Villegas, Esq., 140 Broadway, New York, NY 10005, (888) 219-6877, www.labaton.com, settlementquestions@labaton.com. If you are a Settlement Class Member, to be eligible to share in the distribution of the Net Settlement Fund, you must submit a Claim Form postmarked or received no later than June 6, 2019. If you are a Settlement Class Member and do not timely submit a valid Claim Form, you will not be eligible to share in the distribution of the Net Settlement Fund, but you will nevertheless be bound by any judgments or orders entered by the Court in the Action. If you wish to exclude yourself from the Settlement Class, you must submit a written request for exclusion in accordance with the instructions set forth in the Notice such that it is received no later than May 23, 2019. If you are a Settlement Class Member and do not exclude yourself from the Settlement Class, you will be bound by any judgments or orders entered by the Court in the Action. Any objections to the Settlement, Plan of Allocation, and/or Lead Counsel's Fee and Expense Application must be filed with the Court in accordance with the instructions set forth in the Notice such that they are postmarked or filed no later than May 23, 2019. PLEASE DO NOT CONTACT THE COURT, DEFENDANTS, OR DEFENDANTS' COUNSEL REGARDING THIS NOTICE. Dated: April 8, 2019 BY ORDER OF THE UNITED STATES DISTRICT COURT FORTHE NORTHERN DISTRICT OF CALIFORNIA 1 The complete terms of the Settlement are in the Stipulation and Agreement of Settlement, dated November 30, 2018, which can be viewed at www.ExtremeNetworksSecuritiesLitigation.com. [GN] EXXON MOBIL: Court Denies Bid to Dismiss LeBlanc and Beasley Claims ------------------------------------------------------------------- In the case, WARREN LESTER, ET AL. v. EXXON MOBIL CORP., ET AL., SECTION "L" (2), Civil Action No. 14-1824 (E.D. La.), Judge Eldon N. Fallon of the U.S. District Court for the Eastern District of Louisiana denied the two motions to dismiss without prejudice filed by the Plaintiffs Herman LeBlanc and Donnie Beasley. The Plaintiffs in the instant Lester action were allegedly exposed to naturally occurring radioactive material associated with the cleaning of used oilfield pipe at pipe yards in Harvey, Louisiana, including the "Grefer Tract," nearby tracts of land, and tracts of land in other locations in Louisiana, Texas, Mississippi, and Oklahoma. These Plaintiffs are individuals residing in several states who either worked at, or lived near, these facilities. The Lester Plaintiffs, a number of whom allege to have contracted cancer from NORM, seek damages for personal injury, medical monitoring, property damage, and punitive damages. Lester has a lengthy procedural history. In 2002, over 600 Plaintiffs filed a single petition seeking damages in Civil District Court for the Parish of Orleans, State of Louisiana. Since 2002, the state court proceedings have disposed of various Plaintiffs' claims through "trial flights," settlements, or other dismissals, such that just over 500 Plaintiffs now remain. The state court has systemically grouped up to 12 Plaintiffs' like-claims together for trial flights. According to the Plaintiffs, none of the completed trial flights have had preclusive effect on subsequent trial flights. One of the Plaintiffs included in the Lester petition was Cornelius Bottley, who died from esophageal cancer in 2012. On July 16, 2014, three members of his surviving family filed a separate Bottley action, also in Civil District Court in Orleans Parish. On July 31, 2014, with an upcoming trial flight, these Bottley Plaintiffs moved the state court to transfer and consolidate their case with the Lester state action. Based on this motion for consolidation, Bottley Defendant Exxon Mobil Oil removed both Lester and Bottley to the Court under the Class Action Fairness Act ("CAFA"). The Plaintiffs moved to remand the cases to state court. The Court, however, denied remand on Oct.23, 2014, and consolidated Lester and Bottley. It explained that the Plaintiffs' motion to consolidate in state court constituted a "proposal for joint trial," particularly where over 500 Plaintiffs remained at the time the motion to consolidate was filed . Thus, CAFA bestowed federal "mass action" jurisdiction. The Plaintiffs appealed the decision, and in June 2018, the Fifth Circuit upheld the Court's denial of the motion to remand. Subsequently, on Jan. 31, 2019, Shell moved for summary judgment; however, after finding there were still significant issues of material fact regarding Shell's contribution to the Plaintiffs' injuries, the Court denied Shell's motion. The instant motions relate to two Lester Plaintiffs -- Donnie Beasley and Herman LeBlanc. These Plaintiffs' claims have been pending in the action since 2005. On Dec. 19, 2016, Beasley was diagnosed with a bone tumor on his spine, which was subsequently determined to be multiple myeloma. On July 30, 2018, LeBlanc was diagnosed with bladder cancer. Rather than amending their claims in the instant matter to include additional Defendants, Beasley and LeBlanc filed separate suits in Louisiana State Court. Of the nine defendants in the state court action, seven are also Defendants before the Court in Lester. Both Beasley and LeBlanc filed motions pursuant to Federal Rule of Civil Procedure 41(a)(2) seeking dismissal of their claims before the Court without prejudice. In their motions, the Plaintiffs assert they filed their claims in state court to avoid naming additional Defendants in the Lester mass action. Next, they contend the Defendants will not suffer any legal prejudice if the claims currently before the Court are dismissed. Finally, the Plaintiffs argue the state forum offers them an opportunity to have their cases tried more quickly in light of the recent developments in their cancers, which they contend could become more severe quickly, without warning. The Defendants first argue the Plaintiffs' motions are an attempt to avoid the Court's order denying the Plaintiffs' motion to remand and the Fifth Circuit's ruling affirming that order. Next, they contend that granting the Plaintiffs' motion would deprive them of their lis pendens defense in Plaintiffs' pending state court actions. Judge Fallon finds that the adverse ruling the Defendants point to is the Court's denial of the Plaintiffs' motion to remand. He notes that forum shopping is an insufficient basis upon which to establish legal prejudice. Moreover, even assuming the Plaintiffs are attempting to avoid the Court's denial of their motion to remand, the Fifth Circuit affirmed the district court's grant of the Plaintiffs' motion to dismiss without prejudice in Manchack, despite the district court's having previously denied the Plaintiffs' motion to remand. Thus, the Judge will not deny the Plaintiffs' motion on this basis. With respect to the Defendants' losing the availability of their lis pendens exception in state court, the defense is not absolute, such as an exception based on the statute of limitations; rather, the exception of lis pendens simply forces the case to proceed in the court in which the case was first filed. Again, the same law would apply to the Plaintiffs' claims regardless of whether the case proceeds in state or federal court. Because granting the Plaintiffs' motion to dismiss would not allow them to select a different body of law unfavorable to the Defendants' position, the Judge will not deny the Plaintiffs' motion to dismiss on this basis. Finally, the Defendants argue they will suffer legal prejudice from the dismissal of these two Plaintiffs, as (1) the case has been pending before the Court since August 2014, (2) the parties have undergone extensive motions practice, and (3) allowing both the CAFA mass action and the two prospective individual actions to proceed simultaneously will force the Defendants to litigate substantially similar claims in multiple venues. The Judge finds that not only are the Plaintiffs seeking to dismiss only two of their claims, both LeBlanc and Beasley have refiled their claims in two separate state courts. Thus, allowing dismissal of LeBlanc's and Beasley's claims would require the Defendants to defend suits based on substantially similar claims in three different venues. In addition, the case has been pending before the Court since August 2014. Since removal, the Court has ruled on the Plaintiffs' motion to remand, which was affirmed by the Fifth Circuit, and, although the Court found it was filed prematurely, the Court has also considered the Defendants' motion for summary judgment. While he does not find the Plaintiffs filed their motion to dismiss to avoid these rulings, the Judge does find the parties have invested substantial time and effort in litigating this case and therefore will suffer legal prejudice should the Court grant the Plaintiffs' motions to dismiss. Moreover, the Plaintiffs have not offered any curative actions the Court could take to prevent Defendants from suffering legal prejudice. As a result, the Judge will deny the Plaintiffs' motions to dismiss without prejudice. For the foregoing reasons; Judge Fallon denied the motions to dismiss without prejudice filed by Plaintiffs LeBlanc and Beasley. A full-text copy of the Court's April 5, 2019 Order is available at https://is.gd/Qc0HeC from Leagle.com. Warren Lester, Alfreda Marshall, David Quinn, Demetria Sterling, Dawn Humphries, Joseph LeBlanc, Sr., Jeffrey Guidry, Eugenio Mallol, Antionette Clark, Wade Bethley, Charles Paine, III, Rebekah Paine, Renee Deris, Kevin Pollard, Harold Singleton, Arthur Russell, Jr., Darlene Roche, Leo Pollard, Ronald Williams, John Williams, Sr., John Gros, III, Jack Roy, Clarence Ross, Earl Williams, Jr, Merlin Williams, Sr, John Hendrix, Jr., Leonardus Meerman, Alan Humphries, Bruce Ingram, An Nguyen, Vi Nguyen, Thoa Vo, Judy Mark, Milton Thompson, Laura Arcement, Robert Arcement, Don Hymel, Clarence Washington, Adam LeBoeuf, Laura LeBoeuf, John Cade, Eric Harrison, Calvin Plaisance, Jr., Mary Favorite, James Autin, Sr., David Hervey, Gregrey Liberta, Jeffrey Liberta, Lyle Ragas, Cedric Watts, Norman Abreo, John Booth, Jr., Louis Brown, Jr, Richard Fritz, Rosetta Williams, Timothy Crowley, Mediamolle Leo, Othe Nash, Raymond Schaeffer, Pierre Orlandez, Sr., Janice Toups, Aquanette Granger, Marylee Calvey, John Oleszkowicz, John Lester, Hermina McCall, Ronald ODonley, Dallas Antoine, Wanda Lester, Warren Lester, Jr., Montreal Matthews, Ronald Watts, Alvin Campbell, Sr., Linda Wickem, Ventress Degree, Antonia Scott, Joseph Scott, Cheryl Nicholas, Janice Lew, Kevin Nicholas, Francis Mends Johnson, Rose Johnson, Charles Green, Sr., Joseph Ruffin, Ernest Sauls, Dolin Calvey, Richard Shrieves, Raymond Hoffmann, Glenda OChery, Robert Ashley, Warren Hock, Roland Fonseca, Kevin Babineaux, J Lindsey, Wallace Lanasa, Jr., Nola Toups, Kent Arcement, Michael Babineaux, George Martinez, Billy King, Ernest Peters, Alexander Raymond, Roger Laviolette, Lloyd Baise, Laura Borders, Kenny Coutee, Oscar Lomax, Calvin Nicholas, Melkile Favorite, Ivy Nash, Louis Banks, Edward Williams, Lawrence Jackson, Leonard Stevenson, James Usin, Alma Loston, Alfrida Loston, Clark Murphy, Dennis Hock, Jr., Vanessa Mitchell, Lawrence Batiste, Clarence George, Roselee Gaston, Rayfield Gaston, Jr., Oscar Jasmine, Sterling Harris, Jeffery Lang, Randy Coleman, Joseph Johnson, Tilman Guidry, Ernest Aguilard, Elvira Aguilard, John Celistan, Jr., Raymond Patin, Barbara Wilson, Margaret Patin, Hakeem Wakeelah, Roland Fleming, Rayfield Gaston, III, Charles Napoleon, Jr., Tannard Darrensburg, Paris Dardar, Joseph Battle, Ernest Mayho, Lionel Gaston, Noble Morton, Jr., Mae Rivet, George Singleton, Barbara Hamilton, Richard Matthews, Jr., Page Girtley, Willis Jackson, Darrel Clarks, Thomas Robinson, Morris Patin, (Hameen), Minnie Patterson, Ethel Henry, Antoinette Magee, Louis Orear, Jr., Lionel Helton, Jimmy Lanette, Lois Walker, Timothy Richard, Denise Lew, Arthur Mitchell, Marva Ceasar, David Brown, Sr., George Bowie, Bobby Bolden, Kerry Dixon, Earl Sevin, Morris Bias, Jr., Denise Jones, Jackie Hebert, David Washington, Jerry Chaisson, Wanda LeBlanc, Carlton LeBlanc, Theodore Stamps, III, Wilfred Adams, Arthur Keys, Barry Humphries, William Walker, Sr., Elwood Dixon, Mae Spears, Henry Roussell, Victor McCaskill, Gaynell Smith, Garfield Gaston, Carolyn Levier, Ahrionne Levier, Aldo Hernandez, Shirley Watts-Robinson, Reginald Price, Magee Winston, Warren Pierce, Maxine Stevenson, Artis Buckley, Deidre Allen, Wilbert Allen, III, Lum Davis, Jr., L.J. Harper, Jr., Eula Scott, Murphy Gautreaux, Arlen Whelan, Charles LeBoeuf, Cecilia Cummings, Steven Brignac, Charles Carter, Sr., Wilton Gary, Sr., Darlene Jenkins, Andrew Burnett, Andrew Nason, Jerry Daniels, Jarmaine Seltzer, Willie Hills, Albert Lloyd, Julien Arcement, Jr., James Dufrene, Jr., Raymond Guidry, Grace Guidry, Russell Todaro, Brandy DiMaggio, Pam Todaro, Ella Todaro, Camille Todaro, Melanie Langeau, Kathleen Lavalla, Todd Lavalla, Samuel Lavalla, George Thomas, Jr., Sylvester Johnson, William Brown, Dr., Horace Crappel, Gloria Crappel, Brant Griffin, Kevin Sider, James Jackson, Bryan Bournes, George Tracy, Jimmie McGee, Carla Simmons, Frank Morris, Raymond Schaefer, James Perry, Willis Clofer, Kirbie Hawkins, Darrell Wilson, Johnny Riley, Charles Cross, Hector Martinez, Mark Russell, Avis Russell, Edward Russell, Raymond Hill, Roy Jacks, Edward Dabney, Lercy Dabney, Jr., Percy Burns, Henry Stokes, David Hill, James Lee, Laddies Jones, Jr., Merian Cross, Lonzo Taylor, Kenneth Honora, Samella Addison, Janet Addison, Jimmy Merchant, Michelle Nicholas, Stanley Harris, Sr, Wayne Hill, Steve Ricard, Robert Stokes, Leo Coleman, Freddie Carter, Sr., Henry Thompson, Delores Johnson, Orlandez Pierre, Fred Wilson, Jr, Marion Burks, Richard Schwary, Kenneth Gaines, Joseph Paul, Jr., Earl Williams, III, Jeffery Duckett, Reginald Hadley, Lorraine Davis, Carnel Allen, Charles Hadley, Lawrence Dorsey, Sherman Gaston, Wynesta Gaston, David Snedecor, Monroe Turner, David Lackey, Jr, Barbara Lackey, Donald Johnson, Terral Johnson, Mason Saulsberry, Jr, Joseph Baudion, Joseph Hadley, Louis Fulton, Jr, Christopher Ford, Larry Bourg, Albert Lewis, Jr., Genevea Marshall, Joseph Thomas, III, Paul Plaunche, Tyrone Boyd, Roy Rome, Jr, Roland Bougere, Robert Williams, Rose Brown, Clifford Pierre, Winston Whitten, Charles Davis, Jr, James Roussell, Louis Coleman, Jessie Clark, Milton Carter, Jr, J D Frazier, Gerald Hunter, Porter Edwards, Tong Tran, Eddie Fitzgerald, Allan Lepine, Ruth Lepine, Hayes Lepine, Kevin Meredith, Joe Frazier, Donald Hill, Hilton Clark, Fred Adams, Isiah Parker, Thomas Breaux, Jr, Maxine Harris, John Harris, III, Damion Harris, Rosie Page, Ruby Paige, Randy Thortorn, Terry Joseph, Trelldrieke Addison, Dirk Addison, Joann Stevenson, Lawrence Davis, Teresa Davis, Leroyal Hester, Sr, Rod Robin, Carlo Blanda, Russell Champ, Randolph Harris, Edna Semien, Salvador Lebella, Glenn Cuccia, Eddie Fonseca, Herman Fonseca, Sr, Jeanette Houston, Thomas Saylor, Betty Thomas, Edward Jackson, III, Kenneth Walker, Kenneth Lew, Jr., Reynard Mitchell, Rodell Houston, Jr., Rodell Houston, Sr., Selina Tipton, William Clarke, Alex Henry, Kim Walker, King Robinson, Alvin Richardson, Jr., Wiley Dorsey, Jr., Larry Bourg, Jr., Dan Crowley, Sr., Ruby Bowie, William Brown, Francis Turner, Yvette Burks, Eugene Young, Robert Goudy, Clarence Harris, Jr., Freddie Harris, Renee Harris, Tina Kreig, Alvin Comeaux, Frank Miller, Shareta Miller, Edward Lee, Lloyd Vercher, Flowers Wilson, Russell Jack, Sr., Claude Dupre, Jr., Lee Pellegrin, Sr., Clyde McGill, Joseph Baker, Hanson Theriot, Willie Boldens, Harold Harris, Wayne Townsend, Robert Jacquot, Preston McGee, Jr., Theodore Gatlin, Earl Johnson, Richard Grear, Gillbert Hoffpauir, Derryl Himel, Sr., Billy Lebouef, Jr., Russell Jasmine, Philip Breaux, James Day, Earl Gautreaux, David Williams, Leon Hill, Alvin Beaubouef, Sr., Irving Benoit, Aubrey Smalls, Rufus Jean-Batiste, Walter Lemieux, Jr., Augusta Genorta, Leonard Grace, Henry Mang, Hal Jenkins, Tamika Brown, Nerry Landry, Ion Verret, Gilda Knighton, Roger Coursey, Rene Domangue, Mytaya Semien, John Dupont, Terry Lovern, Andrew Wright, Sr., Ervin Porche, Sr., Roosevelt Scott, John Barrios, Leeroy Babin, Jr., William Hebert, Hayward Bourque, H. Jackson, Harold Quellette, Willis Touchet, Wardell Brignac, James Lewis, Terry Young, Jimmie Gray, Sidney Howard, Margaret Teague, Angela Lawrence, Shala Allen-Miller, Anita Miller, Kim Smith, Edna Raymond, obo Frank Raymond, Jr., deceased, Earl Boullion, Jr., Earnest Wilson, Sr., Eva Wilson, John Julien, Sr., Rodney Wilson, Freddie Credear, Carmen Teague, Keith Duhon, Larry Duhon, Peter Duhon, Byron Mansion, Sr., Lionel Ayo, James Smith, also known as, Mary Doris, Yacheka Brown, Marquette Smith, Mickey Chaney, Clarence Gamble, William Cook, Joyce Cook, Isaac Smith, Reginald Raymond, obo Frank Raymond, Jr., deceased, Preston Jack, Sr., Gregory Wilson, Sr, Eugene Thompson, Jr., Sidney Manison, III, Wilson Bowie, Jr., Charlotte Istre, Bert Istre, Laddie Batiste, Don Harris, Herbert Teague, Julia Caldwell, Lionel Singleton, Raoul Toups, Marlon Edwards, Donald Steel, Clinton Mikel, Louis Noel, Barry Mayon, Michael Wilson, David Perry, James Braud, Robin Rodrigue, Karen Rodrigue, Rodney Morehead, Patricia Judy, Curtis Dixon, Houston Slate, Joseph Berry, Jeffrey Harmond, Andrew De Lotte, Melvin Brown, Darryl Elliott, Simon Elliser, Earl Hamilton, Detroit Roy, Evelyn Lirette, Stuart Lirette, Randy Luke, Joseph Batiste, Deborah Desereaux, Judy Perrin, Harris Lanette, Darryl Lirette, Isabella Tinson, Danny Blanchard, Glenn Coulon, Michelle Chauvin, Travis Lirette, Daisy Sylve, Darren McDonald, Thomas Willette, Jr., Cecil Breaux, Cory Paige, Valeria Paige, Vivian Paige, Joseph Page, Carlos Paige, Melanie McMullen, Betty Reed, Lloyd Folse, JoAnn Folse, Alvin Miller, Joseph Palmer, Sean Raymond, Lester Drennan, Gaylen Spencer, Joycelyn Jasmine, Jack Page, Ira Simoneaux, Jr., Richard Benoit, Giles Lanasa, Melanie Scioneaux, Onise Lirette, Janel Edwards, Albert Williams, Victor Bonilla, Wilbert Miller, Sidney Maise, Angela Pollard, Earleen Miller, Macey R. Aucoin, Sterling J. Aucoin, III, Armand F. Bellanger, Sr., Jessica Billiot, Walter T. Bonnie, Jr., Leroy J. Bottley, Berkline Boudreaux, Sr., Bruce Campbell, Danielle R. Champine, Byron Davis, Sherman Farr, Sr., Sherman R. Farr, Jr., John E. Fleming, Dennis A. Foret, Michael E. Grygo, Alan Williams, Sr., Clarence Hall, Jr., Robert Johnson, Christopher J. Johnson, Isaiah J. Kellup, Jr., Lawrence B. Knight, Herman LeBlanc, Jr., Stella C. Lirette, Deyond Lloyd, Mose Lloyd, Tony L. Louviere, Robert McCall, Stephen C. Niehaus, Garland R. Oldham, Gary I. Price, Michael J. Thomas, Rosalie Williams, Stephen Yancey, Kawana Valet, for decedent, Leroy Valet, Kerry Valet, for decedent, Leroy Valet, Kenneth Valet, for decedent, Leroy Valet, Karen Alexie Rodrigue, Felix Alexie, Jr., Kevin Alexie, Michelle Alexie, Morris Bowie, Harold Bowie, Cora M. Chess, Brenda Washington, Diane Lawrence, Roy Chess, Mary Bradley Doris, Parnell M. Doris, Kevin A. Doris, Gerard Doris, Charell Doris Ellis, Daryl R. Doris, Charlene B. Boquet, Nedra B. Detiveaux, Doris Young, as tutrix of her minor child, Terrell Young, Jennifer Hurst, Alice Junior, Randy Junior, Lionel Junior, II, Landa Boyd, Kristin Johnson, Lezia M. Parsley, Charles C Parsley, Natalie P. Brown, Angela R. Parsley, Diana Verret, James Verret, II, Angele Verret Ridge, Sheri Dunlavy, Jerry Lynn Dunlavy, Casey Dunlavy, Adrienne J. Ingram, Jovanna Thompson, Darryle Johnson, Wanda Raymond, obo Frank Raymond, Jr., deceased, Marie Stevenson, obo Frank Raymond, Jr., deceased, Aje Edwards, obo Frank Raymond, Jr., deceased, Ja'don Charles, obo Frank Raymond, Jr., deceased, Frank Raymond, III, obo Frank Raymond, Jr., deceased, Shirley Bottley, Jovane Benoit, Juajuan Benoit, Christi Allen, on behalf of decedent, Ronald Allen, Natasha Allen Burns, on behalf of decedent, Ronald Allen, Ronda Allen, on behalf of decedent, Ronald Allen, Jessica Allen, on behalf of decedent, Ronald Allen, Tiffiny Allen, on behalf of decedent, Ronald Allen, Teon Allen, on behalf of decedent, Ronald Allen, James Mead, #591 & Richard Mead, #591, Plaintiffs, represented by Timothy John Falcon, Falcon Law Firm, Jarrett S. Falcon, Falcon Law Firm, Jeremiah A. Sprague, Falcon Law Firm, Juan C. Obregon -- Juan.Obregon@jacksonlewis.com -- Jackson Lewis, P.C., Kevin David Micale, Smith Stag, LLC, Michael G. Stag, Stag Liuzza, LLC & Stuart Housel Smith, Smith Stag, LLC. Joseph Grefer, Camille Grefer, Rosemarie Grefer Haase & Henry Grefer, Defendants, represented by Gladstone N. Jones, III -- gjones@jonesswanson.com -- Jones, Swanson, Huddell & Garrison, LLC, Eberhard D. Garrison -- egarrison@jonesswanson.com -- Jones, Swanson, Huddell & Garrison, LLC, Jacqueline Alexandra Stump & Kevin Earl Huddell -- khuddell@jonesswanson.com -- Jones, Swanson, Huddell & Garrison, LLC. ExxonMobil Oil Corporation, Movant, represented by Glen Marion Pilie -- glen.pilie@arlaw.com -- Adams & Reese, LLP, David M. Stein, Pugh, Accardo, Haas, Radecker & Carey, Donald Cole Massey, Couhig Partners, LLC, E. Paige Sensenbrenner, Adams & Reese, LLP, Martin Alan Stern, Adams & Reese, LLP, Roland M. Vandenweghe, Jr., Adams & Reese, LLP, Ronald J. Sholes -- ronald.sholes@arlaw.com -- Adams & Reese, LLP & Valeria M. Sercovich -- valeria.guey@arlaw.com -- Adams & Reese, LLP. EXXON MOBIL: Ninth Circuit Appeal Filed in Goldstein Class Suit --------------------------------------------------------------- Plaintiffs Arnold Goldstein, John Covas and Gisela Janette La Bella filed an appeal from a Court ruling in their lawsuit styled Arnold Goldstein, et al. v. Exxon Mobil Corporation, et al., Case No. 2:17-cv-02477-DSF-SK, in the U.S. District Court for the Central District of California, Los Angeles. As previously reported in the Class Action Reporter, the Plaintiffs bring the action in the wake of the Torrance Refinery's February 18, 2015 explosion which registered a 1.7 magnitude earthquake, sending flames and ash into the sky and fueling fears among the families, residents, and workers in proximity to the Refinery. The appellate case is captioned as Arnold Goldstein, et al. v. Exxon Mobil Corporation, et al., Case No. 19-80048, in the United States Court of Appeals for the Ninth Circuit.[BN] Plaintiffs-Appellants ARNOLD GOLDSTEIN, an individual, individually and on behalf of all others similarly situated; JOHN COVAS, an individual, individually and on behalf of all others similarly situated; and GISELA JANETTE LA BELLA are represented by: Matthew Kendall Edling, Esq. SHER EDLING, LLP 100 Montgomery Street, Suite 1410 San Francisco, CA 94104 Telephone: (628) 231-2500 E-mail: matt@sheredling.com - and - Daniel Joseph Bass, Esq. Matthew J. Matern, Esq. Tagore Olivier Subramaniam, Esq. MATERN LAW GROUP 1230 Rosecrans Avenue, Suite 200 Manhattan Beach, CA 90266 Telephone: (310) 531-1900 Facsimile: (310) 531-1901 E-mail: dbass@maternlawgroup.com mmatern@maternlawgroup.com tagore@maternlawgroup.com Defendants-Appellees EXXON MOBIL CORPORATION, a New Jersey corporation; PBF ENERGY INC., a Delaware corporation; TORRANCE REFINING COMPANY LLC, a Delaware Limited Liability Company; PBF ENERGY WESTERN REGION LLC; PBF HOLDING COMPANY LLC, a Delaware Limited Liability Company; PBF ENERGY COMPANY LLC, a Delaware Limited Liability Company; and STEVEN STEACH are represented by: Mark Randall Oppenheimer, Esq. O'MELVENY & MYERS LLP 1999 Avenue of the Stars, 8th Floor Los Angeles, CA 90067 Telephone: (310) 553-6700 E-mail: roppenheimer@omm.com Defendant-Appellees EXXON MOBIL CORPORATION, a New Jersey corporation, is represented by: Dawn Sestito, Esq. O'MELVENY & MYERS LLP 400 South Hope Street, 18th Floor Los Angeles, CA 90071 Telephone: (213) 430-6352 E-mail: dsestito@omm.com EXXON: Victoria, BC Mayors Reconsidering Class Action Plan ---------------------------------------------------------- Todd Shepherd, writing for The Washington Free Beaconn, reports that the mayor of Victoria, British Columbia told a local radio show she's no longer convinced that launching lawsuits against energy producers like Exxon, Shell, and BP is the best use of the city's resources towards the goal of fighting climate change, suggesting localities may be reconsidering such efforts. The Victoria City Council, representing a city just a three hour ferry ride northwest from Seattle, originally passed a motion in January in support of filing a class-action lawsuit against the world's major oil producers to seek damages the city believes it has suffered due to climate change. "Since we passed the original motion, I have had some second thoughts," Mayor Lisa Helps told CBC's Daybreak North. "I think there might be more prudent and more timely approaches." "Time is running out and fighting lawsuits is probably not the best way to spend our time, when we've got a planet to save," she added later. Her comments suggest the appetite for such efforts, which kicked off in 2017 when local governments on the coasts filed nuisance suits against top energy producers, is waning. "It was easy enough to say yes to the climate litigation proposal when it first appeared on the agenda," said Stewart Muir, executive director of the Resource Works Society, which believes the lawsuits could create significant economic damage. "This has been the case in a lot of communities where the seemingly innocuous proposal has been passed without anyone giving it much thought. It looks like this is what happened in Victoria." "When both the local chamber of commerce and the hotels association protested Council's decision to buy into the climate litigation campaign, it appears the mayor might have started looking more closely at the issue," he continued. "As hoteliers and small business owners know, Victoria is utterly dependent on hydrocarbon-based fuels. The summertime cruise ship business brought 260 visits to the city's cruise terminal in 2018, and those ships burn a lot of fuel oil. The local airport is a growth story and is currently expanding its departure hall to accommodate increasing flights." Spencer Walrath, Research Director for Energy In Depth, a project of the Independent Petroleum Association of America, echoed those comments. "It's great to see Mayor Helps reconsidering her position on Victoria's potential climate lawsuit," Walrath said. "It seems she's read the tea leaves and seen that these lawsuits are going nowhere. Litigation will do nothing to reduce emissions and is nothing more than an empty gesture that delays real action on climate change. Other mayors and local leaders should follow her example and consider ways they can work with their local communities and business leaders." Since the original activity in 2017, the federal lawsuit shared between San Francisco and Oakland has been dismissed, although the cities are currently appealing. Another lawsuit involving a set of smaller governments in California was sent back down to state court, a development that did not bode well for the plaintiffs. After the numerous filings based in California, the zeal for similar legal action spread to East Coast governments such as Baltimore and Rhode Island in 2018. Also, in November of that year, the Pacific Coast Federation of Fishermen's Associations also filed a civil action, becoming one of the first non-governmental entities to file similar claims. Currently, the District of Columbia Attorney General's office is reviewing bids from outside law firms or legal teams in support of an "investigation and potential litigation" under the government's banner as well. Most, if not all, of the government-initiated suits are being handled as contingency fee arrangements with third-party attorneys in which the attorneys handling the work are only paid if a judgment is awarded to the government. Many former attorneys general, mainly Republicans, have been highly critical of these kinds of arrangements saying they invite ethical challenges, especially about broadening the scope of a state's law enforcement powers. [GN] FACEBOOK INC: Ex-Post Moderator Files Class Action -------------------------------------------------- Sarah Jeong, writing for The New York Times, reports that in an opinion article Facebook's chief executive, Mark Zuckerberg, said he agreed with the growing consensus that Facebook -- and other social media companies -- should be subject to more regulation. The article, published in four countries and three languages, was fated to be misunderstood from the start. His first suggestion was to create an independent body so users could appeal Facebook's moderation decisions. Over the past few years, Facebook has caught fire from all sides for its content moderation. Some say hate speech should be censored more aggressively. At the same time, the company has been accused of censoring conservative viewpoints. And for years, it has been roundly criticized for its puritanical ban on female nipples. But if Facebook had its way, the ultimate authority would no longer lie with Facebook -- or Twitter or YouTube or other competitors. That job would fall to unspecified "regulators." "Regulation could set baselines for what's prohibited and require companies to build systems for keeping harmful content to a bare minimum," Mr. Zuckerberg wrote. For a company exhausted by a year of scandal, a regulatory scapegoat is just what the doctor ordered. If you don't like what we do, why don't you try it for a change? American legal experts were incredulous. Daphne Keller of the Stanford Center for Internet and Society accused Facebook of proposing an unconstitutional system, knowing it was impossible. In an initial statement, Ben Wizner of the American Civil Liberties Union said it was a violation of the First Amendment. The Electronic Frontier Foundation claimed it would violate the freedom of expression guaranteed by the Universal Declaration of Human Rights. Facebook's head of public policy, Kevin Martin, explained that while Mr. Zuckerberg's reference to "regulation" might mean actual government intervention in France, Germany and Ireland, it meant only private sector self-regulation in the United States. This kind of faux regulation is nothing new. Among the examples cited were Finra, a nongovernmental financial industry "regulator"; the Motion Picture Association of America, which rates films; and the Entertainment Software Rating Board, which rates video games. (After this clarification, the A.C.L.U.'s Mr. Wizner agreed that independent bodies like the M.P.A.A. are not unconstitutional). But none of these examples deal with directly regulating speech. Social media content moderation is a different beast entirely. Slapping a label on a video game isn't the same as banning distribution of the video game. Facebook avoided bringing up the Hays Code, the closest corollary to what they propose. The M.P.A.A.'s current rating system is a pale shadow of Hollywood's old Hays Code, the now-laughable list of rules that for years had onscreen husbands and wives sleeping in separate beds. The Code was developed voluntarily by the studios in hopes of avoiding government censorship. It zealously policed depictions of romance, crime, law enforcement and the clergy. When the Supreme Court held that motion pictures were protected by the First Amendment in 1952, enforcement of the code diminished. Facebook's proposal is a bow to public opinion. Last year, a coalition of advocacy groups published the Santa Clara Principles -- new baseline rules for how content moderation should work. The principles focus most heavily on the right to appeal decisions -- particularly in conjunction with "new independent self-regulatory mechanisms" created in collaboration with industry. All this sounds like what The Verge's Casey Newton calls "a Facebook Supreme Court." It's almost as though the Santa Clara Principles were developed by a room full of lawyers. Hammer, meet nail. Due process would be much welcomed in a world where people believe simultaneously that Facebook takes down too little content or too much. But due process is costly, even after removing high-billing lawyers from the equation. Consider that the Supreme Court, with a budget of nearly $90 million, receives 8,000 petitions a year -- most of which are rejected. Meanwhile, according to a class-action lawsuit filed by an ex-Facebook moderator, "moderators are asked to review more than 10 million potentially rule-breaking posts per week." No wonder content moderation on the big platforms doesn't so much resemble an unpleasant visit to the Department of Motor Vehicles as it does a re-enactment of the horror film "The Purge." Due process is a luxury good. We're not likely to see a Facebook Supreme Court -- not an American one, in any event. The Hays Code died after the First Amendment was extended to movies; a Hays Code for the internet will probably be dead on arrival. In a confused, fractured world, Facebook would be glad to stick to a single global standard. This is perhaps why Mr. Zuckerberg offers full-throated praise of the European Union's privacy standard, the General Data Protection Regulation, in his op-ed. The fracture of the internet into different spheres of influence would be bad for his business, and to that end, the company would much rather impose European sensibilities on the American internet than deal with multiple standards. So, while the American government has its hands tied behind its back by the Constitution, the French, the Germans and the Irish will set their own bar for online speech. In the future, American speech -- at least online -- may be governed by Europe. [GN] FIRST ADVANTAGE: Cherry FCRA Class Suit Removed to W.D. Missouri ---------------------------------------------------------------- The lawsuit titled Cherry v. First Advantage Background Services Corp., Case No. 19CN-CC00011, was removed on April 17, 2019, from the Circuit Court of Clinton County, Missouri, to the U.S. District Court for the Western District of Missouri. The District Court Clerk assigned Case No. 5:19-cv-06052-DGK to the proceeding. The lawsuit is brought over alleged violations of the Fair Credit Reporting Act.[BN] Plaintiff George Cherry, on behalf of himself and all others similarly situated, is represented by: Charles Jason Brown, Esq. Jayson A. Watkins, Esq. BROWN & WATKINS, LLC 301 S. US 169 Highway Gower, MO 64454 Telephone: (816) 505-4529 Facsimile: (816) 424-1337 E-mail: brown@brownandwatkins.com watkins@brownandwatkins.com Defendant First Advantage Background Services Corp. is represented by: Dana T. Cutler, Esq. JAMES W. TIPPIN & ASSOCIATES 21 West Gregory Blvd. Kansas City, MO 64114-1105 Telephone: (816) 471-8575 Facsimile: (816) 421-0243 E-mail: dtcutler@tippinlawfirm.com FIRST CHOICE: May 28 Lead Plaintiff Motion Deadline Set ------------------------------------------------------- Rosen Law Firm, a global investor rights law firm, on April 6 announced the filing of a class action lawsuit on behalf of purchasers of the securities of First Choice Healthcare Solutions, Inc. (OTC:FCHS) from April 1, 2014 through November 14, 2018, inclusive (the "Class Period"). The lawsuit seeks to recover damages for First Choice investors under the federal securities laws. To join the First Choice class action, go to http://www.rosenlegal.com/cases-register-1544.htmlor call Phillip Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or cases@rosenlegal.com for information on the class action. NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN ONE. YOU MAY RETAIN COUNSEL OF YOUR CHOICE. YOU MAY ALSO REMAIN AN ABSENT CLASS MEMBER AND DO NOTHING AT THIS POINT. AN INVESTOR'S ABILITY TO SHARE IN ANY POTENTIAL FUTURE RECOVERY IS NOT DEPENDENT UPON SERVING AS LEAD PLAINTIFF. According to the lawsuit, defendants throughout the Class Period made false and/or misleading statements and/or failed to disclose that: (1) defendants retained Elite Stock Research, Inc. to falsely promote First Choice securities to investors in order to materially inflate the price of First Choice stock; (2) Christian Romandetti, Sr., First Choice's former CEO, President, and Chairman of the Board of Directors, participated in a scheme to materially inflate the price of First Choice securities through an unlawful, paid promotional campaign, in which Romandetti personally profited; (3) defendants were in violation of First Choice's internal compliance policies including its Compliance Program, Code of Ethics, and Disclosure Policy, by participating in the pump and dump scheme; and (4) a primary cause of fluctuations in First Choice's stock price was the unlawful campaign, in which Romandetti directly participated, that caused the price of First Choice stock to be inflated while at the same time allowed others to dump their First Choice stock for profit. When the true details entered the market, the lawsuit claims that investors suffered damages. A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than May 28, 2019. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. If you wish to join the litigation, go to http://www.rosenlegal.com/cases-register-1544.htmlor to discuss your rights or interests regarding this class action, please contact Phillip Kim, Esq. of Rosen Law Firm toll free at 866-767-3653 or via e-mail at pkim@rosenlegal.com or cases@rosenlegal.com. Rosen Law Firm -- http://www.rosenlegal.com-- represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. Rosen Law Firm was Ranked No. 1 by ISS Securities Class Action Services for number of securities class action settlements in 2017. The firm has been ranked in the top 3 each year since 2013. [GN] FITBIT: Settles Class Action Over Defective Sleep Tracker Devices ----------------------------------------------------------------- News4JAX reports that Fitbit has agreed to settle a class-action lawsuit which claims its sleep tracker devices are defective and do not work as advertised. It only includes the FitBit Flex, One or Ulta models that were registered online. Florida purchases must have been made between September 1, 2009 and October 27, 2014. If you bought yours in Georgia, it must have been done between March 26, 2014 and October 27, 2014. You can get up to $12.50 and must include the e-mail you used to register your Fitbit. The deadline to apply is May 30. [GN] FORSTER & GARBUS: Bid for Responses in Safont Suit Partly Granted ----------------------------------------------------------------- In the case, SCOTT SAFONT, Plaintiff, v. FORSTER & GARBUS, LLP, LVNV FUNDING LLC, SHERMAN FINANCIAL GROUP, LLC, MARK A. GARBUS, and RONALD FORSTER, Defendants, Case No. 18 CV 00356 (WFK) (CLP) (E.D. N.Y.), Magistrate Judge Cheryl L. Polak of the U.S. District Court for the Eastern District of New York granted in part and denied in part the Plaintiff's request for responses. On Jan. 18, 2018, Safont, on behalf of himself and all others similarly situated, commenced the action against the Defendants, pursuant to the Fair Debt Collection Practices Act ("FDCPA"). According to the Complaint, the case stems from a lawsuit filed by Forster & Garbus on behalf of LVNV to recover a past due debt owed to LVNV. On Feb. 1, 2019, the Plaintiff filed a letter informing the Court of discovery disputes over certain documents withheld by the Defendants. Specifically, the Defendants have objected to the Plaintiff's Interrogatories Nos. 1-10, and Requests for Production Nos. 2-14, 23, 24, and 26-32. They argue that the requests are overbroad, burdensome, vague, and seek legal conclusions. The Plaintiff alleges that the Defendants' objections are conclusory and therefore improper. Request for Production No. 4 seeks documents that show each seller of the account associated with the Plaintiff. The Defendants previously indicated that they did not possess the requested documents. In their latest response, they indicate that they have no documents responsive to this request. Magistrate Judge Polak therefore finds that this dispute is resolved. The Plaintiff argues that his Requests for Production Nos. 23, 24, and 29 are relevant to the claims in the Complaint. Request No. 23 seeks procedures, work standards, manuals, instructions, and guidance issued to Forster & Garbus, LLP by or on behalf of LVNV or regarding Forster & Garbus' work for LVNV. Request No. 24 seeks a copy of the agreement between LVNV and Forster & Garbus, between Resurgent Capital and Forster & Garbus, and/or between Sherman Financial Group, LLC and Forster & Garbus. Request No. 29 seeks information relating to the collection, ownership, and beneficial interest in the collection of the debt at issue in the case. The Magistrate finds that Requests Nos. 23 and 24 are reasonably calculated to lead to the discovery of admissible evidence, and directs defendants to respond. With respect to Request No. 29, she finds the phrasing to be vague, and Orders the Plaintiff to revise his request. Request No. 26 seeks the notes, documents, spreadsheets, Excel files, and electronic files sent to Forster & Garbus before the Plaintiff was served with the lawsuit for past due debt. Request No. 27 seeks a copy of the documents setting forth the actions which Forster & Garbus requires of their attorneys regarding the documents and information to be reviewed before one of their attorneys signs a Summons and Complaint and approves it for filing and service. Request No. 28 seeks the notes, documents, spreadsheets, Excel files, and electronic files reviewed by the attorney in the matter before that attorney signed the complaint against the Plaintiff. The Defendants object to these requests, characterizing them as vague, irrelevant, and burdensome. The Magistrate finds that the information sought by Requests for Production Nos. 26, 27, and 28 and Interrogatories 3 and 4 are relevant, and directs the Defendant to respond to them. To the extent that the Defendants believe that some of the requested documents are protected by the attorney client privilege or the work product doctrine, they are directed to provide a privilege log in accordance with Rule 26 of the Federal Rules of Civil Procedure and Local Civil Rule 26.2 of the Local Rules of the U.S. District Court for the Eastern District of New York. With respect to Requests for Production Nos. 16 and 17, the Plaintiff requests that the Defendants revise their responses to indicate that they have no responsive documents besides the documents bearing Bates Nos. 1-70. The Defendants indicate that they will make this revision, so the Magistrate finds that this dispute is resolved. The Plaintiff explains that Requests Nos. 2, 3, and 5-14, as well as Interrogatories 1, 2, and 5-10 are relevant in order to determine whether a class can be certified. Request No. 2 seeks a] copy of each lawsuit filed by Defendant Forster & Garbus against an individual between March 1, 2017 and the present to attempt to collect debt, where Defendant LVNV is the creditor. Request No. 3 seeks a copy of each notice or communication sent to the debtor notifying the debtor of the assignment of the debt for each lawsuit responsive to Request No. 2. Interrogatory No. 1 requests the number of letters materially identical or substantially similar to the one that the Plaintiff received. Interrogatory No. 2 requests the number of lawsuits filed by Defendant Forster & Garbus against an individual between March 1, 2017 and the present to attempt to collect debt, where Defendant LVNV is the creditor, and which one or more Defendants is treating or has designated or classified or labeled the debt as a consumer debt. The Magistrate directs the Defendants to respond to Requests Nos. 5-14 and Interrogatories Nos. 5-10. Even if there is uncertainty as to the proper parties for the case, she finds that the requests are reasonably calculated to lead to the discovery of admissible evidence. In addition, although defendants claim that the Plaintiff seeks to harass defendants by making this request, they have failed to explain how such a request is harassing. Based on the foregoing, Magistrate Judge Polak granted in part and denied in part the Plaintiff's request for responses. The Clerk is directed to send copies of the Order to the parties either electronically through the Electronic Case Filing system or by mail. A full-text copy of the Court's April 3, 2019 Order is available at https://is.gd/HVFWIb from Leagle.com. Scott Safont, Plaintiff, represented by Mitchell L. Pashkin -- mpash@verizon.net. Forster & Garbus, LLP, LVNV Funding LLC, Sherman Financial Group, LLC, Mark A. Garbus & Ronald Forster, Defendants, represented by Arthur Sanders -- asanders@bn-lawyers.com -- Barron & Newburger, P.C. & Mitchell Lee Williamson -- mwilliamson@bn-lawyers.com -- Barron & Newburger, PC. FORSTER & GARBUS: Stessel FDCPA Suit Removed to S.D. New York ------------------------------------------------------------- The lawsuit titled Liba Stessel, on behalf of herself and others similarly situated v. Forster & Garbus LLP, Capital One Bank and Bulldog Process Service, LLC, Case No. EF001975-2019, was removed on April 16, 2019, from the New York Supreme Court, County of Orange, to the U.S. District Court for the Southern District of New York (White Plains). The District Court Clerk assigned Case No. 7:19-cv-03389 to the proceeding. The lawsuit is brought over alleged violations of the Fair Debt Collection Practices Act.[BN] Defendant Capital One Bank is represented by: Philip A. Goldstein, Esq. MCGUIREWOODS LLP 1251 Avenue of the Americas, 20th Floor New York, NY 10020 Telephone: (212) 548-2167 Facsimile: (212) 715-6275 E-mail: pagoldstein@mcguirewoods.com FOX RUN: Hawk Seeks Unpaid Minimum Wages, Damages ------------------------------------------------- AMBER HAWK, On Behalf of Herself and All Other Similarly Situated Individuals, Plaintiff v. JAMES M. DEASCENTIS d/b/a FOX RUN GENTLEMEN'S CLUB, Defendants, Case No. 2:19-cv-01659-JLG-EPD (S.D. Ohio, April 27, 2019) is a class and collective action against Defendant seeking damages, back-pay, restitution, liquidated damages, prejudgment interest, reasonable attorney's fees and costs, and all other relief that the Court deems just, reasonable and equitable in the circumstances. Specifically, Plaintiff complains that Defendant misclassified Plaintiff and all other members of the class and collective as "independent contractors" when they should have been classified as "employees." As a result, Defendant failed to pay Plaintiff and all other members of the class and collective minimum wage compensation they were entitled to under the Federal Fair Labor Standards Act ("FLSA") and the Ohio Minimum Wage Law ("OMWL"), says the complaint. Plaintiff was employed as an exotic dancer by Defendant at Fox Run in Lockbourne, Ohio for the period of about 2012 through 2018. Defendant is an individual that does business under the trade name "Fox Run" and operates as a gentlemen's club featuring female exotic dancers.[BN] The Plaintiff is represented by: Andrew S. Goldwasser, Esq. Phillip A. Ciano, Esq. CIANO & GOLDWASSER, LLP ETON Tower 28601 Chagrin Blvd., Suite 250 Beachwood, OH 44122 Phone: (216) 658-9900 Facsimile: (216) 658-9920 Email: asg@c-g-law.com pac@c-g-law.com - and - Gregg C. Greenberg, Esq. ZIPIN, AMSTER, & GREENBERG, LLC 8757 Georgia Avenue, Suite 400 Silver Spring, MD 20910 Phone: (301) 587-9373 Email: GGreenberg@ZAGFirm.com GEORGIA: Court Denies Bid for Joinder in Wright Suit ---------------------------------------------------- In the case, TAMARKUS LAKEITH WRIGHT, Plaintiff, v. Warden BRUCE CHATMAN, et al., Defendants, Civil Action No. 5:16-cv-00490-TES-MSH (M.D. Ga.), Judge Tilman E. Self, III of the U.S. District Court for the Middle District of Georgia, Macon Division, denied the Plaintiff's Motion for Joinder. The U.S. Magistrate Judge construes the Plaintiff's motion as one for class certification and recommends denying it because a pro se prisoner-plaintiff may not bring a class action lawsuit on behalf of other prisoners. The parties filed no timely objections to the Magistrate Judge's recommendation. Having thoroughly reviewed the matter, Jugde Self adopted the Magistrate Judge's Report and Recommendation and made it order of the Court. Accordingly, he denied the Plaintiff's Motion for Joinder. A full-text copy of the Court's April 5, 2019 Order is available at https://is.gd/TUVWGV from Leagle.com. TAMARKUS LAKEITH WRIGHT, Plaintiff, pro se. Warden BRUCE CHATMAN, GDCP, JUNE BISHOP, Deputy Warden of Security, GDCP, WILLIAM POWELL, Deputy Warden, GDCP, WILLIAM MCMILLIAN, Unit Manager, GDCP, RUFUS LOGAN, Unit Manager, GDCP, RODNEY MCCLOUD, Superintendent, Telfair State Prison, JAMES MCMILLIAN, Unit Manager, MICHAEL CANNON, Superintendent, CALDWELL, Deputy Warden, BETTY DEAN, Tier Segregation Program Director, COMMISSIONER HOMER BRYSON, VICTOR WALKER, Regional Director, TIMOTHY WARD, Assistant Commissioner & RICK JACOBS, Regional Director, Defendants, represented by ELIZABETH MCRARY CROWDER. GPB CARS 12: Page Files Consumer Credit Suit in New Jersey ---------------------------------------------------------- A class action lawsuit has been filed against GPB CARS 12, LLC et al. The case is styled as RACHAEL A PAGE on behalf of herself and others similarly situated, Plaintiff v. GPB CARS 12, LLC doing business as: NORTH PLAINFIELD NISSAN, NISSAN EXTENDED SERVICES NORTH AMERICA, G.P., NATION MOTOR CLUB LLC also known as: NSD also known as: NATION SAFE DRIVERS, Defendants, Case No. 3:19-cv-11513 (D. N.J., April 26, 2019). The nature of suit is stated as Consumer Credit filed pursuant to the Truth in Lending Act. GPB CARS 12, LLC offers a new and used automobile dealership, also service and parts.[BN] The Plaintiff is represented by: DAVID C. RICCI, ESQ. LAW OFFICE OF DAVID C. RICCI, LLC 51 JFK PARKWAY FIRST FLOOR WEST SHORT HILLS, NJ 07078 Phone: (973) 218-2627 Fax: (973) 206-6955 Email: dricci@njconsumerlawyer.com GROSSMAN & KARASZEWSKI: Hochhauser Files FDCPA Class Action ----------------------------------------------------------- A class action lawsuit has been filed against Grossman & Karaszewski, PLLC. The case is styled as Hindy Hochhauser individually and on behalf of all others similarly situated, Plaintiff v. Grossman & Karaszewski, PLLC, Defendant, Case No. 1:19-cv-02468 (E.D. N.Y., April 26, 2019). The Plaintiff filed the case under the Fair Debt Collection Practices Act. Grossman & Karaszewski, PLLC is a debt collection law office located in East Amherst, NY.[BN] The Plaintiff is represented by: Craig B. Sanders, Esq. Sanders Law PLLC 100 Garden City Plaza, Suite 500 Garden City, NY 11530 Phone: (516) 203-7600 Fax: (516) 281-7601 Email: csanders@barshaysanders.com HCSG WEST: Barrientos Brings Suit Under Calif. Wage & Hour Laws --------------------------------------------------------------- ALMA BARRIENTOS, on behalf of herself and all others similarly situated, Plaintiff, v. HCSG WEST LLC, a New Jersey limited liability company; and DOES 1 through 100, Inclusive Defendants, Case No. 19STCV14541 (Cal. Super. Ct., Los Angeles Cty., April 26, 2019) seeks civil penalties for violation of the California Labor Code, under the Private Attorneys General Act ("PAGA"). The Defendants have had a consistent policy or practice of failing to pay wages, including minimum and overtime wages, to Plaintiff and other non-exempt aggrieved employees in the State of California in violation of California state wage and hour laws as a result of, including but not limited to, unevenly rounding time worked. The Defendants have further failed to pay Plaintiff and other similarly aggrieved employees the full amount of their wages owed to them upon termination and/or resignation as required by Labor Code sections 201 and 202, says the complaint. Plaintiff was employed by Defendants as a non-exempt employee at their facilities in the State of California. HCSG WEST LLC ("HCSG"), is, and at all times relevant hereto was, a limited partnership organized and existing under and by virtue of the laws of the State of Delaware.[BN] The Plaintiff is represented by: Michael Nourmand, Esq. James A. De Sario, Esq. Melissa M. Kurata, Esq. THE NOURMAND LAW FIRM, APC 8822 West Olympic Boulevard Beverly Hills, CA 90211 Phone: (310) 553-3600 Fax: (310) 553-3603 HEALTHCARE SERVICES: Kahn Swick Files Securities Fraud Suit ----------------------------------------------------------- Kahn Swick & Foti, LLC ("KSF") and KSF partner, former Attorney General of Louisiana, Charles C. Foti, Jr., remind investors that they have until May 21, 2019 to file lead plaintiff applications in a securities class action lawsuit against Healthcare Services Group, Inc. (NasdaqGS: HCSG), if they purchased the Company's securities between April 11, 2017 and March 4, 2019, inclusive (the "Class Period"). This action is pending in the United States District Court for the Eastern District of Pennsylvania. If you purchased shares of Healthcare Services and would like to discuss your legal rights and how this case might affect you and your right to recover for your economic loss, you may, without obligation or cost to you, contact KSF Managing Partner Lewis Kahn toll-free at 1-877-515-1850 or via email (lewis.kahn@ksfcounsel.com), or visit https://www.ksfcounsel.com/cases/nasdaqgs-hcsg/ to learn more. If you wish to serve as a lead plaintiff in this class action, you must petition the Court by May 21, 2019. The Lawsuit Healthcare Services and certain of its executives are charged with failing to disclose material information during the Class Period, violating federal securities laws. On March 4, 2019, the Company disclosed an ongoing investigation by the SEC regarding its EPS calculation and reporting practices, including the receipt of a subpoena in March 2018, and that because of these circumstances and its own internal review of the matter, it was unable to file its 2018 10-K report on time. On this news, the price of Healthcare Services Group's shares plummeted. The case is Koch v. Healthcare Services Group, Inc., 19-cv-1227. Contact: Lewis Kahn, Esq. Managing Partner Kahn Swick & Foti, LLC 1100 Poydras St., Suite 3200 New Orleans, LA 70163 Telephone: 1-877-515-1850 Website: www.ksfcounsel.com. Email: lewis.kahn@ksfcounsel.com [GN] HERBERT P. SEARS: Thompson Brings Suit Under FDCPA -------------------------------------------------- CHRISTIE THOMPSON, individually and on behalf of all others similarly situated, Plaintiffs, v. HERBERT P. SEARS CO., INC. DBA HP SEARS, and DOES 1-10, inclusive, Defendant, Case No. 8:19-cv-00754 (C.D. Cal., April 25, 2019) is a case arising as a result of false, deceptive, and unfair debt-collection practices promulgated nationwide by Defendant, in its collection letter campaigns wherein Defendant misrepresents consumer and debtor rights. In particular, Plaintiff alleges that within the year preceding the filing of this Complaint, Defendant attempted to collect debts from her and other consumers and debtors by systematically sending them mail-based collection correspondence that overshadow the disclosure requirements under Federal and State statutes in violation of the Fair Debt Collection Practices Act ("FDCPA"). Plaintiff alleges that Defendant made misrepresentations and omissions in its communications with Plaintiff in connection with the alleged debt, which is inherently deceptive and misleads the least-sophisticated consumer into making payments without apprising them of their rights under both Federal and State laws. Plaintiff is a natural person residing in Orange County, State of California who is allegedly obligated to pay a debt. Defendant is a company that uses any instrumentality of interstate commerce or the mails in its business, the principal purpose of which is the collection of any debts; it also regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.[BN] The Plaintiff is represented by: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. Meghan E. George, Esq. Thomas E. Wheeler, 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 twheeler@toddflaw.com HIRERIGHT LLC: Bid to Transfer Gray FCRA Suit to M.D. Tenn. Denied ------------------------------------------------------------------ Judge Nanette K. Laughrey of the U.S. District Court for the Western District of Missouri, St. Joseph Division, denied HireRight's motion to transfer the case, MICHAEL GRAY, Plaintiff, v. HIRERIGHT, LLC, Defendant, Case No. 5:18-cv-06177-NKL (W.D. Mo.), to the U.S. Court for the Middle District of Tennessee. Plaintiff Gray applied in August 2018 for employment with Communications Solutions, LLC ("CS"), and after interviewing him, CS hired him. He worked at CS for approximately two weeks, at which time CS told him that his employment was being terminated because his consumer report, which had been generated by HireRight, indicated that he had lied during the hiring process concerning the absence of a criminal record in the last seven years. Specifically, the report indicated that Mr. Gray had been charged with or convicted of felony charges within the seven years preceding his employment application. Mr. Gray advised CS that he had not been charged or convicted of any crime in the last seven years. CST nonetheless terminated Mr. Gray on the basis of HireRight's purportedly inaccurate, misleading, and incomplete consumer report. HireRight is a background screening company. Its U.S. hub of operations for North American public criminal record processing and its operations department for the United States are in Nashville, Tennessee. Id. "The operations department is responsible for creating, maintaining, and implementing policies and procedures regarding the preparation and delivery of background reports, including compliance with the FCRA. HireRight states that the individuals with knowledge of the implementation of those procedures, including as specifically applied to this case, are located in Tennessee. The team of "Investigative Specialists" that perform the research and analysis that may be included in the background reports are primarily located in Tennessee. Of HireRight's 1,900 employees, 260 are in Tennessee. In contrast, HireRight has just one employee based in Missouri, a person who works from home in a "technical support capacity" and does not process background reports. Mr. Gray initiated a putative class action against HireRight on Nov. 6, 2018, alleging violations of the FCRA. He alleges that HireRight produced a consumer report concerning the Plaintiff that was inaccurate, misleading, and incomplete, and that HireRight's failure to utilize procedures designed to comply with the unambiguous mandates of the FCRA when producing consumer reports is negligent, reckless and willful. He seeks to represent three nationwide classes defined as follows: (1) all individuals who were the subject of one or more consumer reports in which the Defendant identified an individual as having a felony or misdemeanor record in the last seven years when they did not, from Nov. 6, 2013, through the conclusion of the matter; (2) all individuals who were the subject of one or more consumer reports in which the Defendant identified the court records as being within the last seven years but included records beyond seven years, from Nov. 6, 2013, through the conclusion of the matter; and (3) all individuals who were the subject of one or more consumer reports in which the Defendant failed to include information specifying that the consumer had no criminal records in the last seven years from Nov. 6, 2013, through the conclusion of the matter. He seeks statutory and punitive damages as well as costs and attorneys' fees, but not actual damages. After removing Mr. Gray's proceeding from state court to federal court, HireRight moved for transfer of the case to the Middle District of Tennessee. Judge Laughrey denied HireRight's motion to transfer the case. She finds that the factor of the parties' convenience thus does not weigh in favor of either forum. Further, neither Tennessee nor Missouri appears more convenient for members of the putative class. At best, the prospect of a nationwide class is a neutral factor. Next, she finds that the judicial economy slightly favors the current forum, as the Court now has some familiarity with the alleged facts, and HireRight has not suggested that similar actions already are pending in the Middle District of Tennessee. Mr. Gray's choice of forum of course weighs against transfer, but because this is a purported nationwide class action, Mr. Gray's preference is given less than the "substantial weight" ordinarily afforded a plaintiff's choice of forum. While the convenience factors are neutral, the interests-of-justice analysis favors the current forum. The statute permitting transfers of civil actions does so only insofar as it is in the interest of justice. Because she cannot find that the interest of justice warrants transfer, the Judge deems transfer inappropriate. For these reasons, Judge Laughrey denied HireRight's motion to transfer the case. A full-text copy of the Court's April 5, 2019 Order is available at https://is.gd/uL0l2s from Leagle.com. Michael Gray, Plaintiff, represented by Charles Jason Brown -- brown@brownandwatkins.com -- Brown & Watkins, LLC & Jayson A. Watkins -- watkins@brownandwatkins.com -- Brown & Watkins, LLC. HireRight, LLC, Defendant, represented by Cindy D. Hanson -- cindy.hanson@troutman.com -- Troutman Sanders, pro hac vice, Harrison Scott Kelly -- scott.kelly@troutman.com -- Troutman Sanders, pro hac vice, Patrick Farley Dillard -- patrick.dillard@troutman.com -- Troutman Sanders, pro hac vice & Matthew Duff Turner -- mturner@armstrongteasdale.com -- Armstrong Teasdale LLP. HUNTER WARFIELD: Vazquez Suit Transferred From E.D. to M.D. Pa. --------------------------------------------------------------- The lawsuit styled VAZQUEZ v. HUNTER WARFIELD, INC., et al., Case No. 2:19-cv-01486, was transferred on April 17, 2019, from the U.S. District Court for the Eastern District of Pennsylvania to the U.S. District Court for the Middle District of Pennsylvania (Harrisburg). The Middle District Court Clerk assigned Case No. 1:19-cv-00655-JEJ to the proceeding. The lawsuit arises from alleged violations of the Fair Debt Collection Practices Act.[BN] Plaintiff Maria Vazquez, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED, is represented by: Robert P. Cocco, Esq. ROBERT P. COCCO PC 1500 Walnut St., Suite 900 Philadelphia, PA 19102 Telephone: (215) 351-0200 E-mail: rcocco@rcn.com IDAHO: High Court Might Weigh Public Defender Class Suit -------------------------------------------------------- Tommy Simmons, writing for Idaho Press, reports that a district court judge on March 19, 2019, recommended the Idaho Supreme Court weigh in on a civil lawsuit filed against the state, which claims Idaho's criminal public defense system is inadequate. The case of Tucker v. State of Idaho, filed in 2015, was set for a 40-day court trial to begin in April. As that date loomed, both sides of the lawsuit asked 4th District Court Judge Samuel Hoagland to rule on the matter. In his written response on March 19, Hoagland declined to issue a ruling and recommended both sides ask the Idaho Supreme Court to examine it instead. He issued a stay on the trial date until then. It's the latest act in the long story line of Idaho's struggle to establish a constitutionally adequate public defender system, after a national agency in 2010 found none of the Idaho public defenders' offices it surveyed lived up to the requirements laid out in the U.S. Constitution. What the National Legal Aid and Defender Association, the group that conducted the study, did find in Idaho in 2010, however, were "systemic deficiencies." The report left the Idaho Legislature with the task of fixing those deficiencies, and those conducting the report noted their faith in lawmakers to do so, pointing out Louisiana quadrupled its public defenders' budgets and overhauled its system in 2007 while still reeling from the effects of Hurricane Katrina. The job has proven problematic for Idaho, however, and the lawsuit -- filed by the ACLU, the ACLU of Idaho, and the global law firm Hogan Lovells -- sought to address those difficulties. Current system Unlike some states, Idaho does not have a state public defender system. Idaho's 44 counties are left to manage public defense systems for themselves. They have four options under Idaho law when they do: they can establish county public defender office, as Ada and Canyon counties do, they can contract with an established public defender office, they can join with another county in the same judicial district and establish a public defender's office, or they may contract with a private defense attorney. According to court documents, 31 counties contract with private attorneys. Ada, Bannock, Bonner, Bonneville, Canyon, Gooding, Jefferson, Kootenai and Twin Falls counties have their own public defender offices, and Cassia, Minidoka, Power and Oneida counties have joint offices. The piecemeal system has created problems, according to the ACLU's lawsuit. For example, in many counties, county commissioners only spoke with prosecutors, not defense attorneys, about how to fund the county public defender's office, according to minutes from commissioners' meetings. That left open the possibility public defenders' offices might not be funded as well as prosecutors' offices. Additionally, in 28 Idaho counties, defense attorneys must "obtain permission (from commissioners) to access investigative resources" — meaning resources they would use to help investigate their client's case. The lawsuit also identifies problems in court. It claims in 16 county courthouses, there is no place for attorneys to meet with clients in private, although it does not identify which counties those are. Many times, defense attorneys aren't even able to be present with defendants when they first appear in court after their arrest. "Because public defenders in most instances do not have the staff or resources to be present at initial appearances, indigent defendants are most often left to fend for themselves during these critical proceedings, without the assistance of counsel," according to the 2015 complaint the ACLU filed on behalf of four indigent criminal defendants who said they didn't receive adequate representation in court. "Counsel at this stage is especially important to, among other things, presenting reasoned legal arguments to reduce bail ... advising their clients about how to plead, and negotiating with prosecutors regarding potential plea agreements and pretrial release terms." Defense attorneys are often crushed under heavy caseloads, the complaint alleges — in Kootenai County in 2014, for instance, four of the 15 public defenders in the office handled "well over" 400 cases each. Idaho's Legislative Services Office in 2014 found in at least six counties "individual public defenders are responsible for handling more than twice the work that one attorney should ever take on," according to the complaint. The Idaho Public Defense Commission In 2014, a year before the ACLU filed the lawsuit, the Legislature created the Idaho Public Defense Commission, a team made up of nine people: two representatives from the legislature, one appointed by the Idaho Supreme Court, and six appointed by the governor. Its job was to address public defense problems. "When it was initially created, it really had no power at all," Ritchie Eppink, Esq. attorney for the ACLU of Idaho, told the Idaho Press on March 21. After the ACLU filed its lawsuit in 2015, Eppink said, the legislature gave the commission the power to craft standards and to distribute a certain amount of money to public defenders' offices. But the funding the commission has provided, Eppink said, was "not enough to match the state's addiction to prosecution and incarceration." According to court documents, "it appears that about 17 counties would have attorneys with excessive caseloads under the (commission's) proposed workload standards." The lawsuit Attorneys for the ACLU filed the lawsuit in 2015. In January 2016, the 4th District Court dismissed the suit, the grounds of "standing, ripeness and separation of powers," according to the website for the ACLU of Idaho. Attorneys appealed the case to the Idaho Supreme Court, and in April 2017 the court's justices ruled the suit could continue, however. The scheduling of the 40-day court trial in April came after that. The goal of the lawsuit, Eppink told the Idaho Press, is to compel Idaho to establish a public defense system that complies with its residents' Sixth Amendment right to a competent defense attorney. It's not the only such case in the country either. In the ruling he handed down on March 19, Hoagland pointed out that despite the fact that people have sued states over public defense systems before, "the United States Supreme Court has not weighed in on the standard to be applied in lawsuits challenging public defender systems, and the approach taken by lower courts varies widely." That's why, Hoagland wrote, the case is a matter for the Idaho Supreme Court to examine. There are legal questions in the case that would establish precedent. For example, Hoagland wrote he was uncertain if each individual plaintiff in the case had to prove they'd each "personally suffered some or all of the harms identified." Plus, Hoagland continued, attorneys for the state argued the case's plaintiffs must prove their rights had actually been violated, while the ACLU of Idaho claimed simply the risk of those violations occurring should be enough to prompt an order from a judge to change the public defense system. In his writing, Hoagland appeared concerned any ruling he offered would result in an appeal -- and that the case would then drag on even longer. He recommended the case's players appeal the case to the Idaho Supreme Court again to ask justices what the "appropriate legal standard" is in the matter. [GN] INOGEN INC: Rosen Law Firm Files Securities Fraud Class Suit ------------------------------------------------------------ Rosen Law Firm, a global investor rights law firm, announces the filing of a class action lawsuit on behalf of purchasers of the securities of Inogen, Inc. (NASDAQ: INGN) from November 8, 2017 through February 26, 2019, inclusive (the "Class Period"). The lawsuit seeks to recover damages for Inogen investors under the federal securities laws. To join the Inogen class action, go to https://www.rosenlegal.com/cases-register-1529.html or call Phillip Kim, Esq. or Zachary Halper, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or zhalper@rosenlegal.com for information on the class action. NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN ONE. YOU MAY RETAIN COUNSEL OF YOUR CHOICE. YOU MAY ALSO REMAIN AN ABSENT CLASS MEMBER AND DO NOTHING AT THIS POINT. AN INVESTOR'S ABILITY TO SHARE IN ANY POTENTIAL FUTURE RECOVERY IS NOT DEPENDENT UPON SERVING AS LEAD PLAINTIFF. According to the lawsuit, defendants throughout the Class Period made false and/or misleading statements and/or failed to disclose that: (i) Inogen had overstated the true size of the total addressable market ("TAM") for its portable oxygen concentrators and had misstated the basis for its calculation of the TAM; (ii) Inogen had falsely attributed its sales growth to the strong sales acumen of its salesforce, when in reality it was due in large part to sales tactics designed to deceive its elderly customer base; (iii) the growth in Inogen's domestic business-to-business sales to home medical equipment ("HME") providers was inflated, unsustainable and was eroding direct-to-consumer sales; and (iv) very little of Inogen's business was actually coming from the more stable Medicare market. When the true details entered the market, the lawsuit claims that investors suffered damages. A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than May 6, 2019. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. If you wish to join the litigation, go to https://www.rosenlegal.com/cases-register-1529.html Contact: Laurence Rosen, Esq. Phillip Kim, Esq. Zachary Halper, Esq. The Rosen Law Firm, P.A. 275 Madison Avenue, 34th Floor New York, NY 10016 Telephone: (212) 686-1060 Toll Free: (866) 767-3653 Fax: (212) 202-3827 Website: www.rosenlegal.com Email: lrosen@rosenlegal.com pkim@rosenlegal.com zhalper@rosenlegal.com [GN] ISLE OF CAPRI: Wage Class Action Scheduled for Trial Next Year -------------------------------------------------------------- Steve Vockrodt, writing for The Kansas City Star, reports that a lawsuit filed by a card dealer at the Isle of Capri casino in Kansas City claiming that wages of hourly employees were miscalculated is scheduled for trial next year. Cynthia Larson, who has been a card dealer since 2013, alleges that Isle of Capri rounded off employee time cards in such a way that hourly workers were not paid for time they were actually on the clock. Larson's lawsuit also contends that Isle of Capri violated wage laws for employees making tips. Judge Ortrie Smith of the U.S. District Court for the Western District of Missouri scheduled a jury trial for July 2020. In December, he ruled that Larson's lawsuit can proceed as a collective action case, which is similar to a class action that allows several people with similar allegations to bring claims under one lawsuit. Isle of Capri's parent company, Eldorado Resorts Inc., did not respond to a request for comment. In a regulatory filing, the company said broadly that no lawsuits currently pending against the company were considered material to its finances. Eldorado bought Isle of Capri in Kansas City in 2017. Larson's lawsuit said that the casino's time card system could track when employees clocked in and clocked out by the minute, but would round those times off by 15-minute intervals. For example, an employee showing up and clocking in between 7:53 or 8:07 a.m. would be considered as having arrived for their shift at 8 a.m. The lawsuit says that the casino kept an attendance policy that warned employees against clocking in after their scheduled start time. As a result, Larson's lawsuit said several employees would show up earlier than their shift, clock in beforehand but not receive pay for the minutes they had worked. Over time, the lawsuit says, employees accumulated time that they worked but for which they were not paid. The lawsuit also alleges that Isle of Capri violated rules under the Federal Labor Standards Act concerning employees who are paid under the minimum wage but make up the difference through tips. The lawsuit seeks unpaid wages, overtime wages and other damages. Isle of Capri is one of four casinos on the Missouri side of the Kansas City region and one of 13 licensed casinos in Missouri. In February, Isle of Capri attracted 142,200 visitors and made $5.2 million in adjusted gross revenue, the lowest for both metrics among casinos in Kansas City and St. Louis, according to figures from the Missouri Gaming Commission. [GN] JIFFY LUBE: Faces Migyanko Suit over Handicapped Accessibility -------------------------------------------------------------- A class action complaint has been filed against Jiffy Lube International, Inc. for violations of the Title III of the American Disabilities Act (ADA) and its implementing regulations in connection with Defendant's failure to provide and ensure equal access for individuals with mobility disabilities who patronize Defendant's automotive service centers. The case is captioned RONALD J. MIGYANKO, individually and on behalf of all others similarly situated, Plaintiff, v. JIFFY LUBE INTERNATIONAL, INC., Defendant, Case No. 2:19-cv-00438-NBF (W.D. Pa., April 17, 2019). Plaintiff alleges that Defendant's properties are not fully accessible to persons with mobility disabilities. Defendant has also failed to make reasonable modifications to its policies, practices, and procedures that are necessary to provide its goods, services, facilities, and accommodations to individuals with mobility disabilities. By failing to undertake efforts to ensure that no individual with a disability is excluded, denied services or otherwise treated differently than other individuals, Defendant subjects Plaintiff and those similarly situated to discrimination and unequal treatment in violation of the ADA. Accordingly, Plaintiff seeks declaratory and injunctive relief, enjoining Defendant from continuing its discriminatory conduct, including an order directing Defendant to make readily achievable alterations to its facilities to remove physical barriers to access and make its facilities fully accessible to and independently usable by people with disabilities to the extent required by the ADA; an order requiring Defendant to make all reasonable modifications in policies, practices, or procedures necessary to afford all offered goods, services, facilities, privileges, advantages or accommodations to individuals with disabilities on a full and equal basis; and a declaration determining that Defendant’s policies and practices of discrimination result in a violation of Title III of the ADA and its implementing regulations; an award of attorneys’ fees, expenses, and costs associated with pursuit of this litigation; and any other such relief that this Court deems just and proper. Jiffy Lube International, Inc. is a Delaware corporation, headquartered at 150 N. Dairy Ashford Road, Houston, Texas. The company owns, operates, leases, franchises, and/or controls approximately 2,000 automotive service centers across the United States, and approximately 50 throughout Pennsylvania. [BN] The Plaintiff is represented by: R. Bruce Carlson, Esq. Kelly K. Iverson, Esq. Bryan A. Fox, Esq. CARLSON LYNCH, LLP 1133 Penn Avenue, 5th Floor Pittsburgh PA, 15222 Telephone: (412) 322-9243 Facsimile: (412) 231-0246 E-mail: bcarlson@carlsonlynch.com kiverson@carlsonlynch.com bfox@carlsonlynch.com - and - Patrick W. Michenfelder, Esq. Chad Throndset, Esq. THRONDSET MICHENFELDER, LLC Cornerstone Building One Central Avenue West, Suite 203 St. Michael, MN 55376 Telephone: (763) 515-6110 Facsimile: (763) 226-2515 E-mail: pat@throndsetlaw.com chad@throndsetlaw.com KARL E. THOMAS: Tenants Sue Landlord Over Unlawful Lease Terms -------------------------------------------------------------- ENRIQUETT A CORTE and ALY ARO GONZALES, on behalf of themselves and all similarly situated individuals, Plaintiffs, v. KARL E. THOMAS, SR., individually and d/b/a "Thomas PROPERTIES, Defendants, Case No. 2019CH05365 (Circuit Ct., Cook Cty., Ill., April 26, 2019) seeks to vindicate the rights of aggrieved tenants. In or around the Spring of 2018, Plaintiffs' ceiling began to cave in. As a result of that damage, water began leaking into Plaintiffs' unit. The Plaintiffs repeatedly requested that Defendant repair the leak. Plaintiffs captured several videos of water pouring into their unit through holes in the roof and ceiling. The Defendant instead told Plaintiffs to repair the roof themselves. Plaintiffs could not afford to repair the roof for the entire building. Plaintiffs' lease did not require them to repair the roof to the subject matter property. As a result, Plaintiffs again requested that Defendant repair the roof and stop the leaks. The Defendant responded by telling Plaintiffs that if they did not stop complaining, he would report them to ICE and have them deported. As a result, Plaintiffs were forced to collect the water in buckets as it poured into their units. Karl Thomas is a Cook County slumlord who forces his tenants, largely immigrants, to be both residents and unpaid workforce under a name "Thomas Properties" that he doesn't own. Thomas uses illegal leases, doesn't maintain his properties, and forces his tenants to repair conditions in their own units for free, even when those conditions include severe water damage or toxigenic mold, says the complaint. Plaintiffs applied to rent the subject matter property on or about August 29, 2012. Defendant held himself out as the owner of a business called "Thomas Properties".[BN] The Plaintiff is represented by: Sheryl Ring, Esq. Open Communities Legal Assistance Program 990 Grove Street, Suite 500 Evanston, IL 60201 Phone: (847) 501-5760 Email: sheryl@open-communities.org KIA MOTORS: Casas Files Suit Over Vehicles' Engine Defect --------------------------------------------------------- GRACIELA CASA and GABRIEL CASAS, JR., on behalf of himself and others similarly situated, Plaintiffs, v. KIA MOTORS AMERICA, INC. and DOES 1 through 10, inclusive, Defendants, Case No. 19STCV14457 (Cal. Super. Ct., Los Angeles Cty., April 25, 2019) seeks to redress KMA's violations of California and Illinois' consumer fraud statutes, and also seeks recovery for Defendant's breach of express warranty, breach of implied warranty, breach of the duty of good faith and fair dealing, and common law fraud. On August 13, 2013, Plaintiffs purchased a 2013 Kia Optima vehicle identification number 5XXGR4A64DG204934, (hereafter "Subject Vehicle"), which was manufactured and or distributed by Defendant. The Defendant undertook to preserve or maintain the utility or performance of the Subject Vehicle or to provide compensation if there is a failure in utility or performance for a specified period of time. The warranty provided, in relevant part, that in the event a defect developed with the Subject Vehicle during the warranty period, Plaintiffs could deliver the Vehicle for repair services to Defendant's representative and the Subject Vehicle would be repaired. During the warranty period, the Subject Vehicle contained or developed defects. According to the complaint, the Defendants knew since 2009, if not earlier, that the 2011-2016 KIA Optima, 2011-2016 KIA Sportage, 2012-2016 KIA Sorento, 2011-2016 Hyundai Sonata, and 2013-2016 (hereafter "KIA Vehicles") contained one or more design and/or manufacturing defects in their engines (hereafter "Engine Defect") that results in the restriction of oil flow through the connecting rod bearings, as well as to other vital areas of the engine. Plaintiffs allege that prior to Plaintiffs acquiring the Vehicle, Defendant was well aware and knew that 2.0L GDI engine installed on the Subject Vehicle was defective but failed to disclose this fact to Plaintiffs at the time of sale and thereafter. Plaintiffs purchased the Subject Vehicle from a person or entity engaged in the business of manufacturing, distributing, or selling consumer goods at retail. KMA was engaged in the design, development, manufacture, distribution, marketing, selling, leasing, warranting, servicing, and repair of automobiles.[BN] The Plaintiff is represented by: Tionna Dolin, Esq. Sean Crandall, Esq. Strategic Legal Practices APC 1840 Century Park East, Suite 430 Los Angeles, CA 90067 Phone: (310) 929-4900 Facsimile: (310) 943-3838 Email: tdolin@slpattorney.com scrandall@slpattorney.com KIMBERLY-CLARK CORP: Judge Refuses to Kick Avenatti Off Case ------------------------------------------------------------ Law360 reports that a California federal judge declined to kick indicted attorney Michael Avenatti and his now-defunct firm Eagan Avenatti LLP off a $450 million class action over defective surgical gowns against Kimberly-Clark Corp. [GN] KIND LLC: Years-Long Stay of False Marketing Suit Lifted -------------------------------------------------------- Lawrence I. Weinstein, Jennifer Yang, and Russell Kostelak, writing for The National Law Review, report that Judge William H. Pauley III in the Southern District of New York lifted a years-long stay in a lawsuit against KIND LLC concerning the allegedly false marketing of KIND snack products as "all-natural" and "non-GMO." In re KIND LLC "Healthy and All Natural" Litigation, No. 15-MD-2645. The "all-natural" claims were originally stayed in 2016 in light of ongoing FDA rulemaking regarding the use of "natural" labeling, and the "non-GMO" claims were subsequently stayed in early 2018 pending the USDA's establishment of a national disclosure standard for bioengineered food. In December 2018, the USDA promulgated its "non-GMO" rules through the National Bioengineered Food Disclosure Standard, which became effective in February 2019. The FDA, however, is continuing its lengthy deliberative process. In considering this delay, Judge Pauley concluded that "[i]t is time for this multi-district litigation to move forward." Plaintiffs filed this lawsuit in 2015, alleging that KIND deceptively marketed certain products as "all-natural" and "non-GMO" even though they purportedly contain synthetic and genetically modified ingredients, in violation of New York and other state laws. In September 2016, Judge Pauley stayed the "all-natural" claims pursuant to the doctrine of primary jurisdiction, to wait for the FDA rulemaking process to run its course and provide guidance on the definition of the term "natural." In March 2018, the Court also granted KIND's motion to stay the "non-GMO" claims pending USDA action on a national disclosure standard for bioengineered food, which was expected to occur in July 2018. At the same time, the Court denied plaintiffs' motion to lift the stay of the "all natural" claims. In doing so, Judge Pauley recognized the "glacial pace" of the FDA in defining the term "natural." However, because there was a significant interest in litigating the "all natural" and "non-GMO" claims together, the Court continued to stay the "all natural" claims, but only through August 15, 2018—two weeks after the date on which the USDA was expected to promulgate the "non-GMO" standard. In doing so, the Court noted that the justification for lifting the stay on the "all natural" claims would be "substantially stronger" if the FDA failed to provide guidance by this date. The USDA promulgated its "non-GMO" rules through the National Bioengineered Food Disclosure Standard on Dec. 21, 2018. The Court, therefore, found in its February 2019 decision that there was no reason to continue the stay as to plaintiffs' "non-GMO" claims. However, all parties were in agreement that the "non-GMO" claims should not proceed without the "all natural" claims, again putting at issue whether the stay of the "all natural" claims should be lifted as well, despite the continued absence of FDA guidance on the definition of the term "natural." Judge Pauley noted that courts have split on the question of whether to lift similar stays of "natural" claims pending FDA rulemaking: some have declined to do so, others have lifted stays, and some have chosen not to stay these types of claims at all. But citing his prior determination that if the FDA provided no further guidance by August 2018, "the basis for lifting the stay w[ould] be substantially stronger, and that there was no reason to continue to stay the "non-GMO" claims, the Court concluded that the stay of the "all natural" claims should be lifted in this case. As a result, this lawsuit that began in 2015 will now proceed to discovery. In the meantime, KIND petitioned the FDA last week to update its regulations on nutrient content labeling because, in KIND's view, current regulations permit manufacturers to use nutrient content labeling in a way that misleads the public by concealing the use of added sugars and trans fats in products marketed as contributing to a healthy diet. Watch this space for further developments in-KIND. [GN] KRAFT HEINZ: Kuznicki Law Files Class Action Over False Statements ------------------------------------------------------------------ The securities litigation law firm of Kuznicki Law PLLC issues the following notice on behalf of shareholders of various publicly traded companies, including Kraft Heinz Company. Shareholders who purchased shares in these companies during the dates listed below are encouraged to contact the firm regarding possible appointment as lead plaintiff and a preliminary estimate of their recoverable losses. If you wish to choose counsel to represent you and the class, you must apply to be appointed lead plaintiff and be selected by the Court. The lead plaintiff will direct the litigation and participate in important decisions including whether to accept a settlement for the class in the action. The lead plaintiff will be selected from among applicants claiming the largest loss from investment in the respective securities during the class periods. Members of the class will be represented by the lead plaintiff and counsel chosen by the lead plaintiff. No classes have yet been certified in the actions below. Appointment as lead plaintiff is not required to partake in any recovery. The Kraft Heinz Company (NASDAQ: KHC) Investors Affected: July 6, 2015 - February 21, 2019 A class action has commenced on behalf of certain shareholders in The Kraft Heinz Company. The filed complaint alleges that defendants made materially false and/or misleading statements and/or failed to disclose: (i) Defendants misrepresented that the Zero Based Budgeting ("ZBB") and other cost-saving measures would deliver increased profitability while simultaneously maintaining base business momentum; (ii) Defendants failed to disclose known trends that were negatively impacting the Company's organic sales growth and profitability; (iii) Defendants falsely represented the ability of the Company's pipeline of new products to generate organic growth; (iv) Defendants falsely stated that "main-stays like Oscar Mayer [and] Kraft cheese" were "tangible drivers of [a] turnaround in the second half of 2018"; (v) Defendants failed to disclose known trends that resulted in the intangible asset impairments associated with the Company's Oscar Mayer and Kraft brands; and (vi) Defendants failed to disclose known trends that resulted in the goodwill impairments affecting its U.S. Refrigerated and Canada Retail divisions. [GN] LAOS: Hmong Exiles Petition Supreme Court for Writ of Certiorari ---------------------------------------------------------------- Plaintiffs Hmong 1, et al., filed with the Supreme Court of United States a petition for a writ of certiorari filed in the matter styled Hmong 1, et al., Petitioners v. Lao People's Democratic Republic, et al., Case No. 18-1315. Response is due on May 17, 2019. The Lower Court Case is titled Hmong 1, et al., Petitioners v. Lao People's Democratic Republic, et al., Case No. 17-16828, in the United States Court of Appeals for the Ninth Circuit. Petitioners Hmongs 1 - 5 attempted to bring this action under the Alien Tort Statute, 28 U.S.C. Section 1350 ("ATS"), for atrocities allegedly committed by the Defendants in Laos as part of a campaign to destroy the Hmong people to the root. The Ninth Circuit affirmed the District Court's Judgment of Dismissal for lack of subject-matter jurisdiction. Two questions are presented: 1. Whether petitioners/survivors of the atrocities committed by the Laos communist government met their pleading burden under the Alien Tort Claims Act by alleging that the USA conducted a secret war in Laos; made a verbal request and agreement with the King of Laos to hire Hmong people in Laos to fight the secret war in Laos; made a solemn promise from USA President to King of Laos to protect the Hmong no matter who won or lost the war; brought over substantial stockpiles of highest grade (CIA grade) level guns, ammunition, air planes, barrels of poison; all of which was conducted planned out of CIA, Langley, Virginia as official acts of the US government, and then later brokered a peace treaty forced upon the Laos Royals that was immediately thereafter breached by the Laos Communist; resulting in the communist taking possession of all the US CIA weapons, and turning those very weapons into weapons of a genocide against the Hmong people of Laos; and 2. Whether the immunities afforded to heads of state invoked by the Suggestion of Immunity submitted by the United States of America pursuant to 28 USC section 517 for the Laos President and Prime Minister are inapplicable to this case because it involves claims of war crimes involving genocide, sex crimes, torture, evisceration, and other mayhem committed openly against the Hmong people in Laos. As previously reported in the Class Action Reporter, the Ninth Circuit on Jan. 14 tossed a Hmong woman's proposed class action accusing Laos and several of its highest-ranking government officials of trying to exterminate Hmong people who fought in the Vietnam War as part of the CIA's "secret army." In an unsigned memorandum, the three-judge panel affirmed findings that the unidentified woman failed to establish subject-matter jurisdiction under the Alien Tort Statute because her allegations weren't connected with events in the United States. "Because plaintiff does not allege facts sufficient to establish federal jurisdiction, the district court could not have granted her default judgment," the 4-page memorandum said. The Plaintiff, who lives in an unspecified location in Southeast Asia, sued Laos, its then-president Choummaly Sayasone and several government ministers in November 2015 following the killing of her husband in what she called "the official campaign in Laos to terminate Hmong people." According to the complaint, Laos' communist government launched a campaign immediately after the end of the Vietnam War to "exterminate to their last root" Hmong people in Laos who had helped the CIA fight Vietcong guerillas on the border between Laos and Vietnam as part of a CIA-backed "secret army." The Laotian government "then proceeded to do exactly that and sent the full force of their firepower into the jungles of Laos where hundreds of thousands of Hmong veterans of the 'Secret War' and their descendants were located, killed, maimed, tortured, raped, and poisoned both the Hmong people and the jungle/their environment [including poisoning of the water systems and food systems]," the woman claimed in her lawsuit.[BN] Petitioners HMONG 1, HMONG 2, HMONG 3, HMONG 4, AND HMONG 5, FICTITIOUSLY NAMED INDIVIDUALS, are represented by: Herman A.D. Franck, Esq. FRANCK & ASSOCIATES 910 Florin Road, Suite 212 Sacramento, CA 95831 Telephone: (916) 447-8400 Facsimile: (916) 447-0720 E-mail: franckherman@hotmail.com Respondents LAO PEOPLE S DEMOCRATIC REPUBLIC, et al., are represented by: Noel J. Francisco, Esq. SOLICITOR GENERAL UNITED STATES DEPARTMENT OF JUSTICE 950 Pennsylvania Avenue, NW Washington, DC 20530-0001 Telephone: (202) 514-2203 E-mail: SupremeCtBriefs@USDOJ.gov LAZZONI USA: Fischler Files ADA Suit in S.D. New York ----------------------------------------------------- A class action lawsuit has been filed against Lazzoni USA Inc. The case is styled as Brian Fischler Individually and on behalf of all other persons similarly situated, Plaintiff v. Lazzoni USA Inc., Defendant, Case No. 1:19-cv-03756 (S.D. N.Y., April 26, 2019). The Plaintiff filed the case under the Americans with Disabilities Act. Lazzoni manufactures high quality, contemporary, functional, modern furniture and offers complimentary interior design service in New York and New Jersey.[BN] The Plaintiff is represented by: Douglas Brian Lipsky, Esq. Lipsky Lowe LLP 630 Third Avenue Fifth Floor New York, NY 10017 Phone: (212) 392-4772 Fax: (212) 444-1030 Email: doug@lipskylowe.com LENDLEASE: Faces Investor Class Action Over Share Price Plunge -------------------------------------------------------------- Sarah Danckert, writing for The Sydney Morning Herald, reports that the company building the delayed NorthConnex project in Sydney is facing a class action from investors over its November share price plunge, caused in part by it revealing it was behind schedule on the multibillion-dollar road development. Investors, represented by Maurice Blackburn, are taking action against construction giant Lendlease over its share tumble in November following a surprise $350 million write-down on its engineering business that includes the major Sydney road project. Maurice Blackburn has started taking registrations for a class action against the global builder and developer. The law firm alleges Lendlease broke the Corporations Act by failing to properly inform its shareholders about serious issues in its engineering and services arm and by engaging in misleading and deceptive conduct. Lendlease saw its shares tumble on the day of the write-down announcement to $14.25 after closing strongly on November 8 at $17.45. The share fall wiped billions from the company's market capitalisation over a period of five trading days. At the time, Lendlease said it was reviewing the division. Lendlease further updated the market in late February, saying the engineering and services business would no longer be a required part of the group's strategy and it would book restructuring costs of between $450 million and $550 million. Lendlease told the market at the time that its engineering and services business had been hit by wet weather, a slowdown in work on Sydney's NorthConnex, and some other project problems. Lendlease is also the main contractor on Melbourne's flagship infrastructure project -- the Melbourne Metro Tunnel Project. The NorthConnex project is expected to be delivered six months after schedule. The tunnel is due for completion in 2020. Investors who bought ordinary Lendlease shares between February 21 and November 8 can participate in the claim. A funder has been secured to fund the class action as well. At the time, Lendlease said it was reviewing the division. Lendlease further updated the market in late February, saying the engineering and services business would no longer be a required part of the group's strategy and it would book restructuring costs of between $450 million and $550 million. Lendlease told the market at the time that its engineering and services business had been hit by wet weather, a slowdown in work on Sydney's NorthConnex, and some other project problems. Lendlease is also the main contractor on Melbourne's flagship infrastructure project -- the Melbourne Metro Tunnel Project. The NorthConnex project is expected to be delivered six months after schedule. The tunnel is due for completion in 2020. Investors who bought ordinary Lendlease shares between February 21 and November 8 can participate in the claim. A funder has been secured to fund the class action as well. [GN] LG ELECTRONICS: Faces Class Action in U.S. Over Fridge Compressor ----------------------------------------------------------------- David Richards, writing for ChannelNews, reports that a class action lawsuit filed in the USA against LG Electronics is gathering momentum with owners claiming that food is "going off" because of a faulty refrigerator compressor and that LG is forcing owners to pay for a compressor fix despite a 10-year warranty. Documentation filed in an Illinois federal court against LG claims that frozen items thaw and ". . . cause water to leak from the refrigerator onto the consumers' kitchen floors." In some cases, defendants allege they are ". . . being charged for replacement parts, despite such parts being covered under warranty." Other claims are that "The Compressor Defect prevents the refrigerators from cooling consumers' food and beverages, ultimately causing the food and beverages to spoil…" Michael Lindsley of Waldo in Sheboygan County bought his LG refrigerator five years ago. His compressor had a 10-year warranty. "It simply started making a really loud noise and ice started actually melting," said Lindsley. The refrigerator started leaking and his food was spoiled. He contacted LG for repairs and ended up waiting five months before it was fixed. He said appliance vendors working with LG told him it wasn't worth their time to make the repairs since LG didn't pay them enough for the service. Lawyers for the defendants claim that "all" LG refrigerators are impacted? ChannelNews knows of no cases in Australia or of any of their local LG refrigerators being affected by the alleged faulty compressors. On a Facebook page called "LG Life is NOT GOOD," people from all over the country are complaining about older refrigerators and new ones and all different kinds. In the USA lawyers are pointing media to the Consumer Affairs' website where they claim there are "thousands" of complaints. (See Here) The compressor is a central part of an appliances' cooling process. Some consumers have apparently run into issues with the compressors, including outright failures. The problem has affected refrigerators across different price categories ranging from $1,400 to $7,000 and has rendered the appliances in need of repair within just a few years of use. The plaintiffs involved in the case claim they would not have purchased an LG refrigerator if they knew that there were known issues with the compressors. The US National Association of Home Builders claims the average lifespan of a refrigerator is approximately 13 years. LG reportedly claims that its refrigerators should have about a have a 20-year lifespan. As part of the class-action suit, the affected customers are seeking to have costs associated with fixing the compressor compensated. That includes paying for necessary parts and repairs, as well as reimbursement for food that was spoiled by the malfunctioning appliances and time spent without a working refrigerator. LG has not publicly commented on the class-action suit. [GN] LIBERATO RESTAURANT: Ramirez Seeks OT Pay, Minimum Wage for Drivers ------------------------------------------------------------------- An employment-related class action complaint has been filed against M.L. San Jose Enterprises, Corp., and Manuel Antonio Liberato for alleged violations of the Fair Labor Standards Act (FLSA), the New York Labor Law, and the supporting New York State Department of Labor Minimum Wage Order for Miscellaneous Industries and Occupations. The case is captioned JOSE RAMIREZ, individually and on behalf of others similarly situated, - against - M.L. SAN JOSE ENTERPRISES, CORP., (d/b/a LIBERATO RESTAURANT) and MANUEL ANTONIO LIBERATO, jointly and severally, Case No. 1:19-cv-03429 (S.D.N.Y., April 17, 2019). Plaintiff Jose Ramirez accuses M. L. San Jose Enterprises, Corp, trading as Liberato Restaurant, of failing to pay its delivery car drivers the premium overtime compensation for all hours worked beyond 40 per workweek. Plaintiff Ramirez also asserts that the Defendants have violated the FLSA prohibition against kickbacks by requiring that Plaintiff and the FLSA Collective to purchase, insure, and maintain a vehicle, in order to perform his duties as a car delivery driver and by depriving them of minimum wages free and clear because the costs associated with owning and maintaining a vehicle cut into Plaintiff's minimum wages and overtime. M.L. San Jose Enterprises, Corporation owns, controls and operates Liberator Restaurant, a Latin American restaurant located at 10 W. Burnside Ave. Bronx, New York. Owner-operator Manuel Antonio Liberato determines the wages and compensation of employees, establishes the schedules of employees, maintains employee records, and has the authority to hire and fire employees. [BN] The Plaintiff is represented by: Fausto E. Zapata, Jr., Esq. THE LAW OFFICES OF FAUSTO E. ZAPATA, JR., P.C. 277 Broadway, Suite 206 New York, NY 10007 Telephone: (212) 766-9870 E-mail: fz@fzapatalaw.com LIFEGUARD AMBULANCE: Loper Class Suit Removed to N.D. Alabama ------------------------------------------------------------- The lawsuit captioned Loper v. Lifeguard Ambulance Service LLC, Case No. 01-CV-19-901153.00 was removed on April 17, 2019, from the Circuit Court of Jefferson County, Alabama, to the U.S. District Court for the Northern District of Alabama (Southern). The District Court Clerk assigned Case No. 2:19-cv-00583-JHE to the proceeding. The nature of suit is stated as other fraud.[BN] Plaintiff Heather Loper, on behalf of herself and all others similarly situated, is represented by: Andrew Phillip Campbell, Esq. John Parker Yates, Esq. CAMPBELL GUIN WILLIAMS GUY AND GIDIERE LLC 505 20th Street North Suite 1600 Birmingham, AL 35203 Telephone: (205) 224-0750 Facsimile: (205) 383-2647 E-mail: andy.campbell@campbellguin.com Parker.Yates@campbellguin.com - and - Kristopher O. Anderson, Esq. CLARK PARTINGTON 4725 Main Street, Ste. F222 Orange Beach, AL 36561 Telephone: (251) 245-8595 Facsimile: (251) 271-0445 E-mail: kanderson@clarkparkington.com Defendant Lifeguard Ambulance Service LLC is represented by: Douglas L. McCoy, Esq. Edward Thomas Rowe, Esq. Rodney R. Cate, Esq. HAND ARENDALL HARRISON SALE, LLC P.O. Box 123 Mobile, AL 36601 Telephone: (251) 694-6255 Facsimile: (251) 694-6375 E-mail: dmccoy@handarendall.com erowe@handarendall.com rcate@handarendall.com - and - Mark D. Hess, Esq. HAND ARENDALL HARRISON SALE, LLC 1801 5th Avenue North, Suite 400 Birmingham, AL 35203 Telephone: (205) 324-4400 Facsimile: (205) 322-1163 E-mail: mhess@handarendall.com LL BEAN: California Judge Dismisses Return Policy Lawsuit --------------------------------------------------------- Lori Valigra Bangor, writing for The Keene Sentinel, reports that a district court judge in California on March 14, 2019, dismissed the third of four lawsuits filed against outerwear retailer L.L. Bean after it changed its lifetime return policy in February 2018. All four lawsuits, in California, Massachusetts, Illinois and New York, sought class-action status, with the plaintiffs asking for damages allegedly suffered when L.L. Bean put a time limit on returns. L.L. Bean cited fraud and lost revenue as the reasons for the policy change. In its recent financial performance release, the company said changes to the return policy have cut fraudulent and abusive returns. However, it did not reveal the financial benefits from the policy change. The California lawsuit was filed May 4, 2018, by William A. Shirley of Berkeley. It sought class-action status, and was similar to the first lawsuit filed Feb. 12 in Illinois Northern District Court by lead plaintiff Victor Bondi of Chicago, and two subsequent lawsuits. The second was filed Feb. 28, 2018, in New York by Anita Berger and the third on April 24 in Massachusetts by Benjamin Pershouse. Of the four plaintiffs, Pershouse was the only one to have tried to return an item to L.L. Bean, according to court documents. He was unsuccessful. His case is ongoing in Massachusetts. In dismissing the complaint by Shirley, U.S. District Judge Yvonne Gonzalez Rogers wrote, "Shirley alleges no current, concrete injury. At best, Shirley alleges a hypothetical future harm that would arise if he attempts to return an item he purchased before February 2018, and L.L. Bean denies the return for reasons other than those in the current return policy. Such speculative injuries do not establish standing."[GN] LOUISVILLE METRO: Healey et al. Seek to Certify Class ----------------------------------------------------- In the class action lawsuit, JACOB HEALEY, et al., the PLAINTIFFS-Movants, v. LOUISVILLE METRO GOVERNMENT, et al., the DEFENDANTS, Case No. 3:17-cv-00071-RGJ-RSE (W.D. Ky.), the Plaintiff-Movants Jacob Healey, James Michael Jarvis, Jr., Cynthia Dawn Yates, and Betty Melloan ask the Court to certify a class consisting of: "all persons who, since February 3, 2016, were imprisoned, detained or incarcerated more than four hours after: (a) entry of an order directing their release; and/or (b) their satisfaction of their term of incarceration set by prior court order." Movants seek injunctive and declaratory relief to reduce overdetentions at Louisville Metro Department of Corrections if not stop them entirely.[CC] Counsel for the Movants: James D. Ballinger, Esq. Ballinger Law, PLLC 3610 Lexington Road Louisville, KY 40207 Telephone: (502) 426-3215 E-mail: jim@kentuckytrial.com - and - Gregory A. Belzley, Esq. Camille A. Bathurst, Esq. Aaron Bentley, Esq. BELZLEY, BATHURST & BENTLEY P.O. Box 278 Prospect, KE 40059 Telephone: (502) 292-2452 E-mail: gbelzley@aol.com camillebathurst@aol.com abentley3B@gmail.com M.K. MORSE: Benton Seeks Unpaid Overtime Compensation ----------------------------------------------------- Anthony Benton, on behalf of himself and all others similarly situated, Plaintiff, v. THE M.K. MORSE COMPANY, Defendant, Case No. 5:19-cv-00933-JRA (N.D. Ohio, April 25, 2019) is a case challenging the policies and practices of Defendant that violate the Fair Labor Standards Act ("FLSA"), as well as the Ohio Minimum Fair Wage Standards Act ("OMFWSA"). Plaintiff, the FLSA Class and the Ohio Class frequently worked more than 40 hours in a single workweek, entitling them to overtime compensation under the FLSA and the OMFWSA. However, they were not paid all of the overtime compensation they earned, says the comaplaint. Plaintiff worked for Defendant as an hourly, non-exempt employee within this district and division within the last three years. Defendant is an Ohio corporation.[BN] The Plaintiff is represented by: Shannon M. Draher, Esq. Hans A. Nilges, Esq. NILGES DRAHER LLC 7266 Portage Street, NW, Suite D Massillon, OH 44646 Phone: (330) 470-4428 Fax: (330) 754-1430 Email: hans@ohlaborlaw.com sdraher@ohlaborlaw.com - and - Robi J. Baishnab, Esq. 34 N. High St., Ste. 502 Columbus, OH 43215 Phone: (614) 824-5770 Fax: (330) 754-1430 Email: rbaishnab@ohlaborlaw.com MAINE OXY-ACETYLENE: Discounted Stock Repurchase Unfair, Says Glynn ------------------------------------------------------------------- Ernest J. Glynn, Jeffrey T. MacDonald, Douglas K. Johnson and Joshua T. Richardson, individually and on behalf of all others similarly situated, Plaintiffs, v. MAINE OXY-ACETYLENE SUPPLY CO. and DANIEL GUERIN, Defendants, Case No. 2:19-cv-00176-NT (D. Me., April 25, 2019) is a class action arising from Defendant Maine Oxy's establishment of an Employee Stock Ownership Plan ("ESOP"), the subsequent acquisition of 49% of the company by its employees, and the Defendants' unlawful efforts to repurchase the shares for a fraction of their value. At a minimum, the Defendants intentionally and/or negligently misrepresented the value of the employees' 49% share of the company in order to facilitate the repurchase of the employee stock at a steep discount, to the direct financial benefit of the Defendants and to the wrongful detriment of the Plaintiffs and the Class, says the complaint. Plaintiffs were employees of Maine Oxy and participants in Maine Oxy's ESOP. Maine Oxy is a supplier of welding equipment, industrial and specialty gases that was founded in 1929 and incorporated in the State of Maine in 1935.[BN] The Plaintiffs are represented by: Thomas L. Douglas, Esq. DOUGLAS MCDANIEL & CAMPO LLC, PA 90 Bridge Street, Suite 100 Westbrook, ME 04092 Phone: (207) 591-5747 Email: tdouglas@douglasmcdaniel.com - and - Jeffrey P. Russell, Esq. Bloomer Russell & Beaupain 175 Exchange St. Bangor, ME 04401 Phone: (207) 942-7110 Email: jeff@bloomerrussell.com - and - Lauren Thomas, Esq. Law Office of Lauren Thomas, Esq. 18 Wild Rose Ave. South Portland, ME 04106 Phone: (207) 619-4149 Email: laurenthomaslaw@gmail.com MALCOLM S. GERALD: 11 Cir. Flips FDCPA Claim Dismissal in Holzma ---------------------------------------------------------------- In the case, STEPHEN HOLZMAN, Plaintiff-Appellant, v. MALCOLM S. GERALD & ASSOCIATES, INC., LVNV FUNDING, LLC, Defendants-Appellees, Case No. 16-16511 (11 Cir.), Judge Julie Carnes of the U.S. Court of Appeals for the Eleventh Circuit affirmed in part and reversed in part the district court's ruling dismissing the Plaintiff's Fair Debt Collection Practices Act ("FDCPA"), claims pursuant to Rule 12(b)(6) and declining to exercise jurisdiction over the Plaintiff's Florida Consumer Collection Practices Act claim. Defendant LVNV is a debt collector that purchases and attempts to collect on time-barred debts. In 2015, LVNV purchased such a debt, which had been incurred by the Plaintiff on a personal credit card years prior and had subsequently been charged off by the original creditor in 2007. LVNV retained Defendant Malcolm Gerald & Associate to collect the debt on LVNV's behalf. Like LVNV, Malcolm is a debt collector for purposes of the federal and state statutes at issue in the litigation. In connection with its collection efforts, Malcolm sent the Plaintiff a collection letter. After receiving the collection letter, the Plaintiff filed a putative class action complaint against the Defendants asserting federal claims under the federal FDCPA, and its state corollary, the Florida Act. In support of his FDCPA claims, the Plaintiff alleged that (1) the letter was "false, deceptive, or misleading" in violation of Section 1692e of the FDCPA because it could lead a consumer to believe that there were legal consequences to not making the requested payment when, in fact, the statute of limitations barred legal enforcement of the debt; and (2) attempting to collect on the Plaintiff's time-barred debt via the letter constituted an "unfair or unconscionable" practice in violation of Section 1692f of the FDCPA. The Plaintiff further alleged that the letter violated the Florida Act because it falsely asserted a legal right that Defendants knew did not exist. The Defendants moved to dismiss the Plaintiff's complaint pursuant to Federal Rule 12(b)(6). In an oral ruling and following a hearing on the motion, the district court dismissed the Plaintiff's FDCPA claims with prejudice. In support of its ruling, the court cited Freyermuth v. Credit Bureau Services, Inc., Huertas v. Galaxy Asset Management, and Ehrich v. Convergent Outsourcing, Inc., for the legal principle that the FDCPA permits debt collectors to seek voluntary repayment of time-barred debt so long as the debt collector does not initiate or threaten legal action in connection with its debt collection efforts. It determined that the letter the Plaintiff received did not contain any language that could be interpreted as initiating or threatening legal action. Thus, accepting the legal principle announced in Freyermuth, Huertas, and Ehrich, the court concluded that the Plaintiff's allegations did not assert a plausible violation of the FDCPA. In so ruling, the district court distinguished Daugherty v. Convergent Outsourcing, Inc., Buchanan v. Northland Group., Inc., and McMahon v. LVNV Funding, LLC,in which the Fifth, Sixth, and Seventh Circuits, respectively, held that a collection letter offering to "settle" a time-barred debt, but not threatening litigation, could nonetheless serve as the basis for an FDCPA claim. The district court noted that the collection letter Plaintiff received offered to "resolve" his time-barred debt, not "settle" it. According to the court, the "settle" language used in the letters at issue in Daugherty, Buchanan, and McMahon was more akin to a threat of legal action than the "resolve" language used in the letter Plaintiff received. Consequently, the court determined that the Plaintiff could not state a viable FDCPA claim under the rationale of Daugherty, Buchanan, or McMahon. Having dismissed the Plaintiff's FDCPA claims, the district court declined to exercise pendant jurisdiction over the Plaintiff's Florida Act claim. The court thus dismissed this claim without prejudice. The Plaintiff appeals the dismissal of his FDCPA and Florida Act claims. He argues that he has presented a plausible claim that the collection letter he received from Defendants was "false, deceptive, or misleading" in violation of Section 1692e of the FDCPA, given that the debt referenced in the letter was legally unenforceable. In addition, the Plaintiff argues that the general practice of attempting to collect time-barred consumer debts is per se "unfair or unconscionable" in violation of § 1692f of the FDCPA. Assuming his federal claims are revived pursuant to either argument, the Plaintiff asserts that his state claim should be reinstated and addressed on the merits. Judge Holzman finds that it is at least plausible that the collection letter the Defendants sent to the Plaintiff would have been "false, deceptive, or misleading" to the "least sophisticated" recipient of the letter, in violation of Section 1692e of the FDCPA. As the Plaintiff has thus stated a claim for relief under Section 1692e of the FDCPA, the district court's order dismissing the Plaintiff's Section 1692e claim pursuant to Rule 12(b)(6) is reversed, Although he finds that the Plaintiff has stated a plausible claim that the Defendants' collection letter was misleading under Section 1692e, the Judge rejects the Plaintiff's claim that the general practice of attempting to collect on time-barred debt is per se unfair or unconscionable in violation of 1692f of the FDCPA. Accordingly, he affirmed the district court's dismissal of the Plaintiff's claim under Section 1692f. The district court did not dismiss the Plaintiff's Florida claim on substantive grounds, but rather declined to exercise pendent jurisdiction over it after dismissing the Plaintiff's federal FDCPA claims. In light of his reversal of the ruling as to the Plaintiff's claim under Section 1692e of the FDCPA, the Judge holds that the Plaintiff's Florida claim should be reinstated for consideration on the merits. For the foregoing reasons, Judge Holzman affirmed in part and reversed in part the district court's ruling dismissing the Plaintiff's FDCPA claims pursuant to Rule 12(b)(6) and declining to exercise jurisdiction over the Plaintiff's Florida Act claim. The case is remanded to the district court for further proceedings consistent with the Opinion. A full-text copy of the Court's April 5, 2019 Opinion is available at https://is.gd/Wy9Hrd from Leagle.com. Dale Thomas Golden -- dgolden@gsgfirm.com -- for Defendant-Appellee. Alexander Daniel Weisberg -- aweisberg@carlemon.com -- for Plaintiff-Appellant. David Neal McDevitt -- dmcdevitt@thompsonconsumerlaw.com -- for Plaintiff-Appellant. MATT MARTORELLO: Weddle v. Williams Moved From Colo. to Virginia ---------------------------------------------------------------- The lawsuit titled Weddle v. Williams, et al., Case No. 1:18-mc-00225, was transferred on April 16, 2019, from the U.S. District Court for the District of Colorado to the U.S. District Court for the Eastern District of Virginia (Richmond). The Virginia District Court Clerk assigned Case No. 3:19-mc-00015-REP to the proceeding. In June 2017, the Respondents filed suit in the Eastern District of Virginia, alleging that Defendant Matt Martorello ("Defendant Martorello") and others (collectively "Defendants") engaged in a "criminal enterprise established with the intent of evading state usury laws." Specifically, the Respondents allege that Defendants employed a "rent-a-tribe" business model, whereby a payday lending scheme associates with a Native American tribe "in an attempt to cloak itself in the privileges and immunities enjoyed by the tribe -- or to at least create the illusion that it enjoys tribal immunity."[BN] Respondents Lula Williams, Gloria Turnage, George Hengle, Dowin Coffy and Marcella P. Singh, on behalf of themselves and all others similarly situated, are represented by: Jennifer Rust Murray, Esq. TERRELL MARSHALL LAW GROUP PLLC 936 North 34th St., Suite 300 Seattle, WA 98103-6689 Telephone: (206) 816-6603 Facsimile: (206) 319-5450 E-mail: jmurray@terrellmarshall.com Third-Party Defendant Matt Martorello is represented by: Michelle Lynne Alamo, Esq. ARMSTRONG TEASDALE LLP 4643 S Ulster Street, Suite 800 Denver, CO 80237 Telephone: (720) 722-7189 Facsimile: (720) 200-0679 E-mail: malamo@armstrongteasdale.com - and - Richard Lawrence Scheff, Esq. ARMSTRONG TEASDALE LLP 1500 Market Street, 12th Floor East Tower Philadelphia, PA 19102 Telephone: (215) 246-3469 Facsimile: (215) 569-8228 E-mail: rlscheff@armstrongteasdale.com Movant Jennifer Weddle is represented by: William Daniel Hauptman, Esq. Carolyn J. Fairless, Esq. WHEELER TRIGG O'DONNELL LLP 370 17th Street, Suite 4500 Denver, CO 80202-5647 Telephone: (303) 244-1800 Facsimile: (303) 244-1879 E-mail: hauptman@wtotrial.com fairless@wtotrial.com MCKINLEY HOMEBUILDERS: Jackson Hits Unpaid Wages, Discrimination ---------------------------------------------------------------- JESSICA JACKSON, CHRISTINA HICKS, LARRY HICKS, AND STEPHEN DICKERSON, Individually and On Behalf of All Others Similarly Situated, Plaintiffs, v. MCKINLEY HOMEBUILDERS, INC., MCKINLEY DEVELOPMENT COMPANY, INC., HB AMERICAN GROUP, INC. d/b/a HB RESTAURANT MANAGEMENT, DENALI LAND DEVELOPMENT, INC., YELLOW ROSE COMMERCIAL ASSETS, INC., COTTONWOOD COMMERCIAL ASSETS, INC., GREY MOSS INVESTMENT GROUP, INC., AMERICA FOCUS GROUP, LLC, AMERICA & CHINA INVESTMENT SERVICE CENTER, INC., CFA CABINETRY (DALLAS) LLC., CLEVELAND GRAND OAKS RESERVE HOA, INC., TEXAS CONSTRUCTION MATERIALS, INC., VMC TOOL SOLUTIONS LLC, 7S ALLIANCE, LLC, RENCOTX CONSULTING, LLC, & JIAYOU GONG, YI ZHAO, YUHAI ZHAO, JIE ZHOU, FANG ZHAO, DAVID NEMETH, Individually, Defendants, Case No. 4:19-cv-01544 (S.D. Fla., April 26, 2019) is a collective action and lawsuit on behalf of Plaintiffs and all other similarly situated employees to recover unpaid regular and overtime wages from Defendants. This is a collective action complaint brought on behalf of a class of individuals who were employed by Defendants and whom Defendants classified as exempt or independent contractors. Defendants employed Plaintiffs for various roles and titles within the organization. Defendants did so to avoid having to pay staff appropriately. The Defendants misclassified Plaintiffs as exempt and failed to pay overtime wages in violation of the Fair Labor Standards Act of 1938 ("FLSA"), asserts the complaint. Plaintiff Jessica Jackson further alleges racial discrimination. Plaintiffs were individuals who were employed by Defendants. McKinley Homebuilders, Inc. is a domestic for-profit corporation doing business in the state of Texas.[BN] The Plaintiffs are represented by: Samantha Martinez, Esq. 325 Heights Blvd. Houston, TX 77007 Phone: (713) 333-3270 Telecopier: (713) 333-3275 Email: sam@mtzfirm.com MDL 2672: Bid to Remand Cook to Alabama State Court Denied ---------------------------------------------------------- Judge Charles R. Breyer of the U.S. District Court for the Northern District of California denied the Plaintiffs' motion to remand the case, IN RE: VOLKSWAGEN "CLEAN DIESEL" MARKETING, SALES PRACTICES, AND PRODUCTS LIABILITY LITIGATION. This Order Relates To: MDL Dkt. No. 3659 Crook v. VWGoA, No. 3:17-cv-1977-CRB, MDL No. 2672 CRB (JSC) (N.D. Cal.), to Alabama state court. The Plaintiffs are three individuals who each bought a Volkswagen or Audi 2.0-liter TDI diesel-engine car, and who opted out of the Court-approved 2.0-liter class action settlement. They allege that VWGoA and Volkswagen AG marketed Volkswagen and Audi TDI diesel-engine cars as having low emissions, good gas mileage, and an environmentally-friendly engine. To obtain these benefits, the Plaintiffs allege that they agreed to pay premium prices for the cars. In fact, the cars did not have low emissions and were not good for the environment. And not only were the cars' emissions higher than represented, but VW knew this. VW knew that the cars could not perform as promised and had specifically developed and installed software in them that detected and evaded emissions testing. During testing, the cars appeared to satisfy governing emission standards; but when the cars were on the road, they emitted nitrogen oxides at up to 40 times the legal limits. VW has since admitted that it equipped its TDI diesel-engine cars with emissions-cheating software and that it intentionally deceived U.S. regulators and U.S. consumers about the cars' emissions. The Crook complaint includes four claims against VW. The claims are for (1) fraudulent concealment, (2) fraudulent misrepresentations, (3) violation of the Alabama Deceptive Trade Practices Act ("DTPA"), and (4) unjust enrichment. The Plaintiffs seek remedies which include actual and punitive damages and attorneys' fees. VWGoA removed Crook to federal court, in part on the basis of diversity jurisdiction. VW AG was not served and did not join the notice of removal. The Plaintiffs responded by filing a motion to remand. The Plaintiffs do not dispute that there is complete diversity of citizenship between them, on the one hand, and VWGoA and VW AG on the other. They have, however, made a factual attack on VWGoA's amount-in-controversy allegations. VWGoA, in responding to the Plaintiffs' factual attack, has submitted evidence of the amount in controversy. That evidence falls into three categories: proof of actual damages in dispute, proof of punitive damages in dispute, and proof of attorneys' fees in dispute. In considering the evidence, the Court must determine whether a preponderance of it supports that the $75,000 threshold has been passed. Judge Breyer found that the Plaintiffs do not dispute that there is complete diversity of citizenship between them, on the one hand, and VWGoA and VW AG on the other. Also, a preponderance of the evidence supports that the amount-in-controversy requirement is met. The Judge therefore concluded that it has diversity jurisdiction over Crook. Accordingly, he denied the motion to remand. A full-text copy of the Court's April 5, 2019 Order is available at https://is.gd/iET5vz from Leagle.com. Nicholas Benipayo, Plaintiff, represented by Robert B. Carey -- rob@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, pro hac vice, Steve W. Berman -- steve@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, pro hac vice & Thomas Eric Loeser -- toml@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, pro hac vice. Nadine Bonda, Plaintiff, represented by Adam M. Stewart -- astewart@shulaw.com -- Shapiro Haber & Urmy LLP & Thomas G. Shapiro -- tshapiro@shulaw.com -- Shapiro Haber and Urmy, LLP. Brian Connelly, Plaintiff, represented by Thomas G. Shapiro, Shapiro Haber and Urmy, LLP. Volkswagen Group of America, Inc., a New Jersey Corporation, Defendant, represented by Amie Adelia Vague -- avague@lightfootlaw.com -- Lightfoot Franklin & White, Casey Erin Lucier -- clucier@mcguirewoods.com -- McGuireWoods LLP, Charles J. Baker, III -- chuck.baker@wbd-us.com -- Womble Carlyle Sandridge and Rice, Colin Hampton Tucker -- ctucker@rhodesokla.com -- Rhodes Hieronymus Jones Tucker & Gable, Dana Woodrum Lang -- dana.lang@wbd-us.com -- Womble Carlyle Sandridge and Rice, David M. Eisenberg -- eisenberg@bscr-law.com -- Sterchi, Cowden & Rice, LLC, Henry Buist Smythe, Jr. -- henry.smythe@wbd-us.com -- Womble Carlyle Sandridge and Rice, Howard Feller -- hfeller@mcguirewoods.com -- McGuireWoods LLP, William R. Scherer -- wscherer@conradscherer.com -- Conrad and Scherer, LLP, J. Randolph Bibb, Jr. -- rbibb@lewisthomason.com -- Lewis, Thomason, King, Krieg & Waldrop, P.C., James K. Toohey -- tooheyj@jbltd.com -- Johns & Bell LTD, Jeffrey Lance Chase -- JChase@herzfeld-rubin.com -- Chase Kurshan Herzfeld & Rufin LLC, Jeffrey S. Rugg -- jrugg@bhfs.com -- Brownstein Hyatt Farber Schreck, LLP, Jennifer Marino Thibodaux -- jthibodaux@gibbonslaw.com -- Gibbons PC. MDL 2672: Brooks Clean Diesel Suit Remanded to State Court ---------------------------------------------------------- Judge Charles R. Breyer of the U.S. District Court for the Northern District of California remanded the case, IN RE: VOLKSWAGEN "CLEAN DIESEL" MARKETING, SALES PRACTICES, AND PRODUCTS LIABILITY LITIGATION. This Order Relates To: MDL Dkt. No. 3642 Brooks, No. 3:17-cv-3308-CRB, MDL No. 2672 CRB (JSC) (N.D. Cal.), to the state court where it was filed. The Plaintiffs are a couple who bought a Volkswagen TDI diesel-engine car. They filed their case in Florida state court and named Volkswagen Group of America, Inc. ("VWGoA"), Volkswagen AG ("VW AG"), and Direct B, LLC, doing business as Brandon Volkswagen as the Defendants. VWGoA removed the case to federal court based on federal-question jurisdiction. Pending now is the Plaintiffs' motion to remand their case to state court. Judge Breyer granted the motion. He finds that the Plaintiffs' complaint is materially the same as complaints that the Court examined in a recent Order in which it held that it lacked federal-question jurisdiction. He adopted the same reasoning in the instant matter; the Court does not have federal-question jurisdiction over Plaintiffs' case. VWGoA argues that removal was alternatively appropriate on the basis of diversity jurisdiction. VWGoA removed the Plaintiffs' case only based on federal-question jurisdiction. Because federal-question jurisdiction is lacking, the Plaintiffs' case was not properly removed, and the Judge cannot now consider a ground for removal that VWGoA did not identify in its notice of removal. The Ninth Circuit's decision in Williams v. Costco Wholesale Corp., does not warrant a different conclusion. The court held there that if the defendant's removal notice identifies a valid ground for removal, then even if that ground for removal disappears (e.g., if the basis for removal was federal-question jurisdiction and all federal claims are later dismissed), the district court must retain jurisdiction on any other ground apparent from the complaint, even if that ground was not identified in the notice of removal. Because VWGoA did not identify a valid basis for removal in its removal notice, Williams does not apply, and the Judge cannot now consider a separate ground for removal that VWGoA raised for the first time in opposition to the Plaintiffs' motion to remand. The Clerk of the Court will remand the case to the state court where it was filed. A full-text copy of the Court's April 5, 2019 Order is available at https://is.gd/iKW6pv from Leagle.com. Nicholas Benipayo, Plaintiff, represented by Robert B. Carey -- rob@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, pro hac vice, Steve W. Berman -- steve@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, pro hac vice & Thomas Eric Loeser -- toml@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, pro hac vice. Nadine Bonda, Plaintiff, represented by Adam M. Stewart -- astewart@shulaw.com -- Shapiro Haber & Urmy LLP & Thomas G. Shapiro -- tshapiro@shulaw.com -- Shapiro Haber and Urmy, LLP. Brian Connelly, Plaintiff, represented by Thomas G. Shapiro, Shapiro Haber and Urmy, LLP. Volkswagen Group of America, Inc., a New Jersey Corporation, Defendant, represented by Amie Adelia Vague -- avague@lightfootlaw.com -- Lightfoot Franklin & White, Casey Erin Lucier -- clucier@mcguirewoods.com -- McGuireWoods LLP, Charles J. Baker, III -- chuck.baker@wbd-us.com -- Womble Carlyle Sandridge and Rice, Colin Hampton Tucker -- ctucker@rhodesokla.com -- Rhodes Hieronymus Jones Tucker & Gable, Dana Woodrum Lang -- dana.lang@wbd-us.com -- Womble Carlyle Sandridge and Rice, David M. Eisenberg -- eisenberg@bscr-law.com -- Sterchi, Cowden & Rice, LLC, Henry Buist Smythe, Jr. -- henry.smythe@wbd-us.com -- Womble Carlyle Sandridge and Rice, Howard Feller -- hfeller@mcguirewoods.com -- McGuireWoods LLP, William R. Scherer -- wscherer@conradscherer.com -- Conrad and Scherer, LLP, J. Randolph Bibb, Jr. -- rbibb@lewisthomason.com -- Lewis, Thomason, King, Krieg & Waldrop, P.C., James K. Toohey -- tooheyj@jbltd.com -- Johns & Bell LTD, Jeffrey Lance Chase -- JChase@herzfeld-rubin.com -- Chase Kurshan Herzfeld & Rufin LLC, Jeffrey S. Rugg -- jrugg@bhfs.com -- Brownstein Hyatt Farber Schreck, LLP, Jennifer Marino Thibodaux -- jthibodaux@gibbonslaw.com -- Gibbons PC. MDL 2672: McGowan Clean Diesel Suit Remanded to State Court ----------------------------------------------------------- Judge Charles R. Breyer of the U.S. District Court for the Northern District of California remanded the case, IN RE: VOLKSWAGEN "CLEAN DIESEL" MARKETING, SALES PRACTICES, AND PRODUCTS LIABILITY LITIGATION. This Order Relates To: MDL Dkt. No. 3640 McGowan, 3:16-cv-3204-CRB McGowan, 3:16-cv-4742-CRB, MDL No. 2672 CRB (JSC) (N.D. Cal.), to the state court where it was filed. Edward Robert McGowan is an individual who bought a Volkswagen TDI diesel-engine car in 2010. After he learned that the car used a defeat device to evade emission standards, he filed suit in Louisiana state court against VWGoA, Volkswagen AG, and VW Credit Leasing, LTD. VW AG and VW Credit each filed a notice of removal, and VWGoA consented to removal. The Defendants alleged in their notices that removal was appropriate based on federal question and diversity jurisdiction. Pending now is the Plaintiff's motion to remand his case to state court. Judge Breyer granted the motion. He finds that the Plaintiff's complaint is materially the same as complaints that the Court examined in a recent Order in which it held that it lacked federal-question jurisdiction. He adopted the same reasoning in the instant matter; the Court does not have federal-question jurisdiction over the Plaintiff's case. Although the Defendants also removed the Plaintiff's case based on diversity jurisdiction, they have since acknowledged that diversity jurisdiction is lacking. The Court will therefore not retain the case on the basis of diversity jurisdiction. Judge Breyer concludes the Court lacks subject-matter jurisdiction over the Plaintiff's case. As a result, the Clerk of the Court will remand the case to the state court where it was filed. A full-text copy of the Court's April 5, 2019 Order is available at https://is.gd/rCq04c from Leagle.com. Nicholas Benipayo, Plaintiff, represented by Robert B. Carey -- rob@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, pro hac vice, Steve W. Berman -- steve@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, pro hac vice & Thomas Eric Loeser -- toml@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, pro hac vice. Nadine Bonda, Plaintiff, represented by Adam M. Stewart -- astewart@shulaw.com -- Shapiro Haber & Urmy LLP & Thomas G. Shapiro -- tshapiro@shulaw.com -- Shapiro Haber and Urmy, LLP. Brian Connelly, Plaintiff, represented by Thomas G. Shapiro, Shapiro Haber and Urmy, LLP. Volkswagen Group of America, Inc., a New Jersey Corporation, Defendant, represented by Amie Adelia Vague -- avague@lightfootlaw.com -- Lightfoot Franklin & White, Casey Erin Lucier -- clucier@mcguirewoods.com -- McGuireWoods LLP, Charles J. Baker, III -- chuck.baker@wbd-us.com -- Womble Carlyle Sandridge and Rice, Colin Hampton Tucker -- ctucker@rhodesokla.com -- Rhodes Hieronymus Jones Tucker & Gable, Dana Woodrum Lang -- dana.lang@wbd-us.com -- Womble Carlyle Sandridge and Rice, David M. Eisenberg -- eisenberg@bscr-law.com -- Sterchi, Cowden & Rice, LLC, Henry Buist Smythe, Jr. -- henry.smythe@wbd-us.com -- Womble Carlyle Sandridge and Rice, Howard Feller -- hfeller@mcguirewoods.com -- McGuireWoods LLP, William R. Scherer -- wscherer@conradscherer.com -- Conrad and Scherer, LLP, J. Randolph Bibb, Jr. -- rbibb@lewisthomason.com -- Lewis, Thomason, King, Krieg & Waldrop, P.C., James K. Toohey -- tooheyj@jbltd.com -- Johns & Bell LTD, Jeffrey Lance Chase -- JChase@herzfeld-rubin.com -- Chase Kurshan Herzfeld & Rufin LLC, Jeffrey S. Rugg -- jrugg@bhfs.com -- Brownstein Hyatt Farber Schreck, LLP, Jennifer Marino Thibodaux -- jthibodaux@gibbonslaw.com -- Gibbons PC. MDL 2848: Hedlund Suit vs. Merck over Zostavax Consolidated ----------------------------------------------------------- The case, CHARLOTTE HEDLUND the Plaintiff, vs. MERCK & CO., INC., MERCK SHARP & DOHME CORP., the Defendants, Case No. 9:18-cv-81504 (E.D. Pa., April 29, 2019), seeks to recover damages including medical expenses; the loss of accumulations; and other economic damage. In June 7, 2016, Plaintiff was inoculated with Defendants' Zostavax vaccine at the Walmart pharmacy in Murfreesboro, Tennessee for routine health maintenance and for its intended purpose: the prevention of shingles (herpes zoster). Shortly after receiving Defendants' Zostavax vaccine, on or about June 24, 2016, Plaintiff suffered debilitating injuries including bilateral facial cellulitis, abscesses to her face and eyes and peri orbital soft tissue swelling and edema which caused severe pain and disfigurement resulting in hospitalization for approximately four days As a direct and proximate result of Merck's defective Zostavax vaccine, Plaintiffs symptoms have resulted in physical limitations not present prior to using Merck's product and caused by the Zostavax vaccine. Plaintiff also experiences mental and emotional distress due to resulting physical limitations and seriousness of her condition and has suffered economic losses due to her inability to work. The Hedlund case is being consolidated in MDL No. 2848 Re: Zostavax (Zoster Vaccine Live) Products Liability Litigation, pursuant to an order by the United States Judicial Panel on Multidistrict Litigation entered on August 2, 2018. All actions involve common factual questions arising out of allegations that Zostavax, a live vaccine for the prevention of shingles, caused plaintiffs to develop shingles or other injuries triggered by exposure to the live, attenuated varicella zoster virus contained in the vaccine, and that defendants did not provide sufficient warning of the risks to healthcare providers or consumers. Issues concerning the design, testing, manufacture, regulatory approval, labeling, and marketing of Zostavax are common to all actions. Centralization will eliminate duplicative discovery; prevent inconsistent pretrial rulings on Daubert issues and other pretrial matters; and conserve the resources of the parties, their counsel and the judiciary. In its August 2, 2018 order, the MDL Panel found that these actions involve common questions of fact, and that centralization will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation. The Panel concluded that the Eastern District of Pennsylvania is an appropriate transferee district for this litigation. Seven actions are pending in this district, and they are the earliest filed and most advanced actions in this litigation. The record indicates that the Merck facilities involved in the development, manufacturing, labeling, and marketing of Zostavax are located in Pennsylvania and nearby at its New Jersey headquarters. Thus, many of the common documents and witnesses likely will be located in this area. Merck & Co. is an American pharmaceutical company and one of the largest pharmaceutical companies in the world.[BN] Attorneys for Plaintiff: Nicholas R. Rockforte, Esq. PENDLEY, BAUDIN & COFFIN, L.L.P. 24110 Eden Street Plaquemine, LA 70765 Telephone: (225) 687-6396 Facsimile: (225) 687-6398 E-mail: nrockforte@pbclawfirm.com MDL 2885: Amaro et al. Suit over Defective Earplugs Consolidated ---------------------------------------------------------------- The class action lawsuit titled ANTONIO AMARO, JR., RYAN M. DOWNEY, KARL FLEMING, DEMIEN FRAN, KEVIN A. GARDNER, SR., JOSEPH ALLEXANDER GROLL, SR., ISSAC MALONE, CLAYTON ANTHONY MAYNARD, KEITH B. MENDES, RONALD NEUMEISTER, ANDREW JOSEPH ONDISH, TRAVIS JAMES RUBLE, BRIAN ANTHONY SALOIS, AND DOUGLAS TRUSSELL,, the Plaintiffs, v. 3M COMPANY, the Defendants, Case No. 19-cv-913 (Filed April 2, 2019), was transferred from the U.S. District Court for the District of Minnesota to the U.S. District Court for the Northern District of Florida (Pensacola) on April 29, 2019. The Northern District of Florida Court Clerk assigned Case No. 3:19-cv-01170-MCR-GRJ to the proceeding. The Plaintiffs seek to hold 3M liable for hearing loss or damage they allegedly suffered while serving variously in the U.S. military, including during foreign conflicts. They contend that Combat Arms TM Earplugs, Version 2 ("CAEv2") manufactured and sold by Aearo were defectively designed and failed to provide adequate hearing protection. 3M denies these allegations. CAEv2, designed by Aearo in close collaboration with the U.S. military, represented a revolutionary breakthrough in hearing protection for service members. CAEv2 helped servicemembers better maintain situational awareness (e.g., to hear nearby voice commands) while also maintaining some protection from gunfire and other higher decibel sounds. CAEv2 met the U.S. military's specifications and helped the military provide hearing protection to service members. The Amaro case is being consolidated with MDL 2885 in re: 3M Combat Arms Earplug Products Liability Litigation. The MDL was created by Order of the United States Judicial Panel on Multidistrict Litigation on April 3, 2019. These actions share common factual questions and centralization will eliminate duplicative discovery; prevent inconsistent pretrial rulings on Daubert issues and other pretrial matters; and conserve the resources of the parties, their counsel, and the judiciary. In the April 3, 2019 Order, the MDL Panel found that the actions in this MDL involve common questions arising out of allegations that the Defendants' Combat Arms earplugs were defective, causing plaintiffs to develop hearing loss and/or tinnitus. Issues concerning the design, testing, sale, and marketing of the Combat Arms earplugs are common to all actions. Presiding Judge in the MDL is Hon. Judge M. Casey Rodgers. The lead case is 3:19-md-02885-MCR-GRJ.[BN] Attorneys for the Plaintiffs: Jacob R. Jagdfeld, Esq. JOHNSON BECKER PLLC 444 Cedar Street, Suite 1800 Saint Paul, MN 55101 Telephone: (612) 436-1810 Facsimile: (612) 436-1801 E-mail: jjagdfeld@johnsonbecker.com - and - Stacy Kathryn Hauer, Esq. Timothy J Becker, Esq. JOHNSON BECKER PLLC 444 Cedar Street, Suite 1800 Saint Paul, MN 55101 Telephone: (612) 436-1806 Facsimile: (612) 436-1801 E-mail: shauer@johnsonbecker.com tbecker@johnsonbecker.com Counsel for 3M Company: Benjamin Hulse, Esq. Jerry W. Blackwell, Esq. S. Jamal Faleel, Esq. BLACKWELL BURKE P.A. 431 South Seventh Street, Suite 2500 Minneapolis, MN 55415 Telephone: (612) 343-3248 Facsimile: (612) 343-3205 E-mail: blackwell@blackwellburke.com bhulse@blackwellburke.com jfaleel@blackwellburke.com MDL 2885: Britton vs 3M over Combat Arms Earplugs Consolidated -------------------------------------------------------------- The case, LOUIS BRITTON, JR., the Plaintiff, vs. 3M COMPANY, AEARO HOLDINGS, LLC, AEARO INTERMEDIATE, LLC AEARO, LLC and AEARO TECHNOLOGIES, LLC, the Defendants, Case No. 3:19-cv-01200-RV-EMT (N.D. Fla., April 29, 2019), seeks to hold 3M liable for hearing loss or damage the class allegedly suffered while serving in various capacities in the U.S. military, including during foreign conflicts. The Plaintiff contends that Combat Arms TM Earplugs, Version 2 ("CAEv2") manufactured and sold by Aearo were defectively designed and failed to provide adequate hearing protection. 3M denies these allegations. CAEv2, designed by Aearo in close collaboration with the U.S. military, represented a revolutionary breakthrough in hearing protection for service members. CAEv2 helped servicemembers better maintain situational awareness (e.g., to hear nearby voice commands) while also maintaining some protection from gunfire and other higher decibel sounds. CAEv2 met the U.S. military's specifications and helped the military provide hearing protection to service members. The Britton case is being consolidated with MDL 2885 in re: 3M Combat Arms Earplug Products Liability Litigation. The MDL was created by Order of the United States Judicial Panel on Multidistrict Litigation on April 3, 2019. These actions share common factual questions and centralization will eliminate duplicative discovery; prevent inconsistent pretrial rulings on Daubert issues and other pretrial matters; and conserve the resources of the parties, their counsel, and the judiciary. In the April 3, 2019 Order, the MDL Panel found that the actions in this MDL involve common questions arising out of allegations that the Defendants' Combat Arms earplugs were defective, causing plaintiffs to develop hearing loss and/or tinnitus. Issues concerning the design, testing, sale, and marketing of the Combat Arms earplugs are common to all actions. Presiding Judge in the MDL is Hon. Judge M. Casey Rodgers. The lead case is 3:19-md-02885-MCR-GRJ.[BN] Attorneys for the Plaintiff: Michael W. Gaines, Esq. Tim L. Bowden, Esq. LAW OFFICES OF TIM BOWDEN 306 Northcreek Blvd., Suite 200 Goodlettsville, TN 37072 Telephone: (615) 859-1996 Facsimile: (615) 859-1921 E-mail: mwgaines01@gmail.com bowden_law@bellsouth.net MDL 2885: Coyaso Suit Consolidated in 3M Earplug Litigation ----------------------------------------------------------- The lawsuit titled ACHIQUE COYASO v. 3M COMPANY, AEARO HOLDINGS, LLC, AEARO INTERMEDIATE, LLC, AEARO, LLC, AND AEARO TECHNOLOGIES, LLC, Case No. 1:19-cv-00097, was transferred on April 16, 2019, from the U.S. District Court for the District of Hawaii to the U.S. District Court for the Northern District of Florida (Pensacola). The Florida District Court Clerk assigned Case No. 3:19-cv-00670-MCR-GRJ to the proceeding. The lawsuit is consolidated in the multidistrict litigation captioned IN RE: 3M COMBAT ARMS EARPLUG PRODUCTS LIABILITY LITIGATION, MDL No. 3:19-md-02885-MCR-GRJ. The lawsuit arises out of an alleged extensive fraud that 3M perpetrated on the United States Government and the men and women, who served in the United States Armed Forces. From approximately 2003 through 2015, 3M sold to the USAF tens of thousands of dual-ended Combat Arms Earplugs, version 2 ("Combat Arms Earplugs") which 3M falsely represented as meeting the military's specifications, including that they were suitable for use as hearing protection for military personnel and that they were free from all defects that impair their serviceability. All the while, 3M knew the Combat Arms Earplugs were defective and would expose service members to the extremely dangerous and disabling noise the Combat Arms Earplugs were supposed to protect against.[BN] The Plaintiff is represented by: John Francis Perkin, Esq. Brandee J.K. Faria, Esq. James Wade, Esq. PERKIN & FARIA, LLLC 841 Bishop Street, Suite 1000 Honolulu, HI 96813 Telephone: (808) 523-2300 Facsimile: (808) 697-5304 E-mail: perkin@perkinlaw.com bjkfaria@perkinlaw.com jwade@perkinlaw.com MDL 2885: Dufresne-Yidi Suit Consolidated in 3M Earplug Litigation ------------------------------------------------------------------ The lawsuit entitled JONATHAN N. DUFRESNE-YIDI, on behalf of himself and all others similarly situated v. 3M COMPANY, Case No. 0:19-cv-60739, was transferred on April 16, 2019, from the U.S. District Court for the Southern District of Florida to the U.S. District Court for the Northern District of Florida (Pensacola). The Northern District Court Clerk assigned Case No. 3:19-cv-00652-MCR-GRJ to the proceeding. The lawsuit is consolidated in the multidistrict litigation styled IN RE: 3M COMBAT ARMS EARPLUG PRODUCTS LIABILITY LITIGATION, MDL No. 3:19-md-02885-MCR-GRJ. Plaintiff Jonathan N. Dufresne-Yidi brings this federal Complaint against 3M: (1) on his own behalf to recover damages for his personal injuries incurred while in training and/or on active military duty, resulting from Defendant's defective and unreasonably dangerous product, the Dual-ended Combat Arms(TM) earplugs (Version 2 CAEv.2) ("Dual-ended Combat Arms(TM) earplugs"), and (2) on behalf of himself and all other similarly-situated individuals, requested to establish a Court-supervised fund to provide medical monitoring to active-duty and veteran service members of the armed forces of the United States of America due to their increased risk from using 3M's defective products, and to extend some of the claims deadlines for fraudulent tolling.[BN] The Plaintiff is represented by: Adam M. Moskowitz, Esq. Howard M. Bushman, Esq. Joseph M. Kaye, Esq. THE MOSKOWITZ LAW FIRM, PLLC 2 Alhambra Plaza, Suite 601 Coral Gables, FL 33134 Telephone: (305) 740-1423 E-mail: adam@moskowitz-law.com howard@moskowitz-law.com joseph@moskowitz-law.com - and - R. Seth Crompton, Esq. HOLLAND LAW FIRM, LLC 300 N. Tucker Blvd., Suite 801 St. Louis, MO 63101 Telephone: (314) 241-8111 Facsimile: (314) 241-5554 E-mail: scrompton@allfela.com MDL 2885: Garcia Suit Consolidated in 3M Earplug Litigation ----------------------------------------------------------- The lawsuit titled ROBERTO GARCIA, on behalf of himself and all others similarly situated v. 3M COMPANY, Case No. 1:19-cv-21005, was transferred on April 16, 2019, from the U.S. District Court for the Southern District of Florida to the U.S. District Court for the Northern District of Florida (Pensacola). The Northern District Court Clerk assigned Case No. 3:19-cv-00659-MCR-GRJ to the proceeding. The lawsuit is consolidated in the multidistrict litigation captioned IN RE: 3M COMBAT ARMS EARPLUG PRODUCTS LIABILITY LITIGATION, MDL No. 3:19-md-02885-MCR-GRJ. The action arises out of alleged serious and permanent personal injuries sustained by the Plaintiff, a veteran of the United States military, as well as thousands of similarly situated veterans, who all risked their lives while defending the country. The Plaintiff contends he specifically used the Defendant's dangerously defective Dual-ended Combat Arms(TM) earplugs while deployed in Afghanistan and during other training and combat exercises. The Defendant sold the Dual-ended Combat Arms(TM) earplugs to the U.S. military for more than a decade without the military and/or the Plaintiff having any knowledge of the defect(s) and failed to adequately warn the military and/or the Plaintiff of the defect(s).[BN] The Plaintiff is represented by: Adam Matthew Moskowitz, Esq. Howard Mitchell Bushman, Esq. Joseph M. Kaye, Esq. THE MOSKOWITZ LAW FIRM, PLLC 2 Alhambra Plaza, Suite 601 Coral Gables, FL 33134-5269 Telephone: (305) 740-1423 Facsimile: (786) 298-5737 E-mail: adam@moskowitz-law.com howard@moskowitz-law.com joseph@moskowitz-law.com - and - R. Seth Crompton, Esq. HOLLAND LAW FIRM, LLC 300 N. Tucker Blvd., Suite 801 St. Louis, MO 63101 Telephone: (314) 241-8111 Facsimile: (314) 241-5554 E-mail: scrompton@allfela.com The Defendant is represented by: Suzanne Marie Aldahan, Esq. HOLLAND AND KNIGHT 215 Royal Palm Way Boca Raton, FL 33432 Telephone: (561) 213-3932 E-mail: suzanne.aldahan@hklaw.com MDL 2885: Gould et al. Suit over Combat Arms Earplugs Consolidated ------------------------------------------------------------------ The class action lawsuit titled GUY F. GOULD, ADRIAN LUMUN HUTCHISON, JOSE JAIME IBARRA, III, TERRY NELSON IRVIN, JR., WILLIAM DEVIA JACKSON, BRANDIE JOHNSON, JOSHUA ETHAN JORDAN, TRAVIS S. PAINTER, and ISMAIL MALIIK SCOTT, the Plaintiffs, v. 3M COMPANY, the Defendant, Case No. 19-cv-784 (Filed March 20, 2019), was transferred from the U.S. District Court for the District of Minnesota to the U.S. District Court for the Northern District of Florida (Pensacola) on April 29, 2019. The Northern District of Florida Court Clerk assigned Case No. 3:19-cv-01150-MCR-GRJ to the proceeding. The Plaintiffs seek to hold 3M liable for hearing loss or damage they allegedly suffered while serving variously in the U.S. military, including during foreign conflicts. They contend that Combat Arms TM Earplugs, Version 2 ("CAEv2") manufactured and sold by Aearo were defectively designed and failed to provide adequate hearing protection. 3M denies these allegations. CAEv2, designed by Aearo in close collaboration with the U.S. military, represented a revolutionary breakthrough in hearing protection for service members. CAEv2 helped servicemembers better maintain situational awareness (e.g., to hear nearby voice commands) while also maintaining some protection from gunfire and other higher decibel sounds. CAEv2 met the U.S. military's specifications and helped the military provide hearing protection to service members. The Gould case is being consolidated with MDL 2885 in re: 3M Combat Arms Earplug Products Liability Litigation. The MDL was created by Order of the United States Judicial Panel on Multidistrict Litigation on April 3, 2019. These actions share common factual questions and centralization will eliminate duplicative discovery; prevent inconsistent pretrial rulings on Daubert issues and other pretrial matters; and conserve the resources of the parties, their counsel, and the judiciary. In the April 3, 2019 Order, the MDL Panel found that the actions in this MDL involve common questions arising out of allegations that the Defendants' Combat Arms earplugs were defective, causing plaintiffs to develop hearing loss and/or tinnitus. Issues concerning the design, testing, sale, and marketing of the Combat Arms earplugs are common to all actions. Presiding Judge in the MDL is Hon. Judge M. Casey Rodgers. The lead case is 3:19-md-02885-MCR-GRJ.[BN] Attorneys for the Plaintiffs: Jacob R. Jagdfeld, Esq. JOHNSON BECKER PLLC 444 Cedar Street, Suite 1800 Saint Paul, MN 55101 Telephone: (612) 436-1810 Facsimile: (612) 436-1801 E-mail: jjagdfeld@johnsonbecker.com - and - Stacy Kathryn Hauer, Esq. Timothy J Becker, Esq. JOHNSON BECKER PLLC 444 Cedar Street, Suite 1800 Saint Paul, MN 55101 Telephone: (612) 436-1806 Facsimile: (612) 436-1801 E-mail: shauer@johnsonbecker.com tbecker@johnsonbecker.com Counsel for 3M Company: Benjamin Hulse, Esq. Jerry W. Blackwell, Esq. S. Jamal Faleel, Esq. BLACKWELL BURKE P.A. 431 South Seventh Street, Suite 2500 Minneapolis, MN 55415 Telephone: (612) 343-3248 Facsimile: (612) 343-3205 E-mail: blackwell@blackwellburke.com bhulse@blackwellburke.com jfaleel@blackwellburke.com MDL 2885: Lynch Suit Consolidated in 3M Combat Earplug Litigation ----------------------------------------------------------------- The lawsuit entitled SEAN LYNCH, individually and on behalf of all others similarly situated v. 3M COMPANY, a Delaware Corporation., Case No. 1:19-cv-00273, was transferred on April 17, 2019, from the U.S. District Court for the District of Columbia to the U.S. District Court for the Northern District of Florida (Pensacola). The District Court Clerk assigned Case No. 3:19-cv-00709-MCR-GRJ to the proceeding. The lawsuit is consolidated in the multidistrict litigation captioned IN RE: 3M COMBAT ARMS EARPLUG PRODUCTS LIABILITY LITIGATION, MDL No. 3:19-md-02885-MCR-GRJ. The lawsuit seeks relief on behalf of Lt. Sean Lynch and a Class of all military personnel, who have used 3M's Combat Arms(TM) Earplugs. The lawsuit seeks medical monitoring for the Plaintiff and the Class to help diagnose and/or mitigate hearing loss and hearing related maladies resulting from the use of 3M's defective product.[BN] Plaintiff SEAN LYNCH, individually and on behalf of all other similarly situated individuals, is represented by: Jessica Hamman Meeder, Esq. MURPHY, FALCON & MURPHY 1 South Street, Suite 2300 Baltimore, MD 21202 Telephone: (410) 951-8744 E-mail: jessica.meeder@murphyfalcon.com - and - Steven William Teppler, Esq. EDELSON MCGUIRE LLP 5715 Firestone Ct. Sarasota, FL 34238 Telephone: (941) 487-0050 Facsimile: (941) 870-4403 E-mail: steppler@timecertain.com - and - John A. Yanchunis, Esq. MORGAN & MORGAN COMPLEX LITIGATION GROUP 201 N. Franklin Street, 7th Floor Tampa, FL 33602 Telephone: (813) 223-5505 Facsimile: (813) 223-5402 E-mail: jyanchunis@ForThePeople.com - and - Kevin S. Hannon, Esq. THE HANNON LAW FIRM, LLC 1641 Downing Street Denver, CO 80218 Telephone: (303) 861-8800 E-mail: khannon@hannonlaw.com Defendant 3M COMPANY, a Delaware Corporation, is represented by: Kimberly O. Branscome, Esq. KIRKLAND & ELLIS LLP 333 South Hope Street Los Angeles, CA 90071 Telephone: (213) 680-8400 E-mail: kimberly.branscome@kirkland.com - and - Robert B. Ellis, Esq. KIRKLAND & ELLIS LLP 300 N Lasalle Chicago, IL 60654 Telephone: (312) 862-2000 E-mail: robert.ellis@kirkland.com MDL 2885: McDonagh Suit Consolidated in 3M Earplug Litigation ------------------------------------------------------------- THOMAS MCDONAGH, on behalf of himself and all others similarly situated v. 3M COMPANY, Case No. 9:19-cv-80253, was transferred on April 16, 2019, from the U.S. District Court for the Southern District of Florida to the U.S. District Court for the Northern District of Florida (Pensacola). The Northern District Court Clerk assigned Case No. 3:19-cv-00663-MCR-GRJ to the proceeding. The lawsuit is consolidated in the multidistrict litigation styled IN RE: 3M COMBAT ARMS EARPLUG PRODUCTS LIABILITY LITIGATION, MDL No. 3:19-md-02885-MCR-GRJ. The Plaintiff alleges that he wore 3M's Dual-ended Combat Arms(TM) earplugs while in training and in the field and while in active duty. He contends that he now suffers from bilateral hearing loss as a direct result of 3M's admittedly defective products. This case seeks, among other things, damages for Mr. McDonagh as a direct result of him using these defective ear plugs while serving the country.[BN] The Plaintiff is represented by: Adam M. Moskowitz, Esq. Howard M. Bushman, Esq. Adam A. Schwartzbaum, Esq. Joseph M. Kaye, Esq. THE MOSKOWITZ LAW FIRM, PLLC 2 Alhambra Plaza, Suite 601 Coral Gables, FL 33134 Telephone: (305) 740-1423 E-mail: adam@moskowitz-law.com howard@moskowitz-law.com adams@moskowitz-law.com joseph@moskowitz-law.com - and - R. Seth Crompton, Esq. HOLLAND LAW FIRM, LLC 300 N. Tucker Blvd., Suite 801 St. Louis, MO 63101 Telephone: (314) 241-8111 Facsimile: (314) 241-5554 E-mail: scrompton@allfela.com The Defendant is represented by: Suzanne Marie Aldahan, Esq. HOLLAND AND KNIGHT 215 Royal Palm Way Boca Raton, FL 33432 Telephone: (561) 213-3932 E-mail: suzanne.aldahan@hklaw.com MDL 2885: Smith Suit over Combat Arms Earplugs Consolidated ----------------------------------------------------------- The case, MARK SMITH, the Plaintiff, vs. 3M COMPANY, AEARO HOLDINGS, LLC, AEARO INTERMEDIATE, LLC AEARO, LLC and AEARO TECHNOLOGIES, LLC, the Defendants, Case No. 3:19-cv-01202-MCR-HTC (N.D. Fla., April 29, 2019), seeks to hold 3M liable for hearing loss or damage they allegedly suffered while serving variously in the U.S. military, including during foreign conflicts. The Plaintiff contend that Combat Arms TM Earplugs, Version 2 ("CAEv2") manufactured and sold by Aearo were defectively designed and failed to provide adequate hearing protection. 3M denies these allegations. CAEv2, designed by Aearo in close collaboration with the U.S. military, represented a revolutionary breakthrough in hearing protection for service members. CAEv2 helped servicemembers better maintain situational awareness (e.g., to hear nearby voice commands) while also maintaining some protection from gunfire and other higher decibel sounds. CAEv2 met the U.S. military's specifications and helped the military provide hearing protection to service members. The Smith case is being consolidated with MDL 2885 in re: 3M Combat Arms Earplug Products Liability Litigation. The MDL was created by Order of the United States Judicial Panel on Multidistrict Litigation on April 3, 2019. These actions share common factual questions and centralization will eliminate duplicative discovery; prevent inconsistent pretrial rulings on Daubert issues and other pretrial matters; and conserve the resources of the parties, their counsel, and the judiciary. In April 3, 2019 Order, the MDL Panel found that the actions in this MDL involve common questions arising out of allegations that the Defendants' Combat Arms earplugs were defective, causing plaintiffs to develop hearing loss and/or tinnitus. Issues concerning the design, testing, sale, and marketing of the Combat Arms earplugs are common to all actions. Presiding Judge in the MDL is Hon. Judge M. Casey Rodgers. The lead case is 3:19-md-02885-MCR-GRJ.[BN] Attorneys for the Plaintiff: Michael W. Gaines, Esq. Tim L. Bowden, Esq. LAW OFFICES OF TIM BOWDEN 306 Northcreek Blvd., Suite 200 Goodlettsville, TN 37072 Telephone: (615) 859-1996 Facsimile: (615) 859-1921 E-mail: mwgaines01@gmail.com bowden_law@bellsouth.net MDL 2885: Stokes Suit Consolidated in 3M Combat Earplug Litigation ------------------------------------------------------------------ The lawsuit titled SHAYNE STOKES, on behalf of himself and all others similarly situated v. 3M COMPANY, Case No. 2:19-cv-14098, was transferred on April 16, 2019, from the U.S. District Court for the Southern District of Florida, Fort Pierce Division, to the U.S. District Court for the Northern District of Florida (Pensacola). The Northern District Court Clerk assigned Case No. 3:19-cv-00661-MCR-GRJ to the proceeding. The lawsuit is consolidated in the multidistrict litigation captioned IN RE: 3M COMBAT ARMS EARPLUG PRODUCTS LIABILITY LITIGATION, MDL No. 3:19-md-02885-MCR-GRJ. The action arises out of serious and permanent personal injuries sustained by the Plaintiff, a veteran of the United States military, as well as thousands of similarly situated veterans, who all risked their lives while defending the country. The Plaintiff contends he used 3M's defective earplugs in training and/or on active military duty domestically and abroad. He specifically used the Defendant's dangerously defective Dual-ended Combat Arms(TM) earplugs while deployed in Iraq and during other training and combat exercises. The Defendant sold the Dual-ended Combat Arms(TM) earplugs to the U.S. military for more than a decade without the military and/or the Plaintiff having any knowledge of the defect(s) and failed to adequately warn the military and/or the Plaintiff of the defect(s).[BN] The Plaintiff is represented by: Adam M. Moskowitz, Esq. Howard M. Bushman, Esq. Joseph M. Kaye, Esq. THE MOSKOWITZ LAW FIRM, PLLC 2 Alhambra Plaza, Suite 601 Coral Gables, FL 33134 Telephone: (305) 740-1423 E-mail: adam@moskowitz-law.com howard@moskowitz-law.com joseph@moskowitz-law.com - and - R. Seth Crompton, Esq. HOLLAND LAW FIRM, LLC 300 N. Tucker Blvd., Suite 801 St. Louis, MO 63101 Telephone: (314) 241-8111 Facsimile: (314) 241-5554 E-mail: scrompton@allfela.com The Defendant is represented by: Suzanne Marie Aldahan, Esq. HOLLAND AND KNIGHT 215 Royal Palm Way Boca Raton, FL 33432 Telephone: (561) 213-3932 E-mail: suzanne.aldahan@hklaw.com MDL 2885: Torres Suit Consolidated in 3M Combat Earplug Litigation ------------------------------------------------------------------ The lawsuit entitled NOEL TORRES, on behalf of himself and all others similarly situated v. 3M COMPANY, Case No. 1:19-cv-21001, was transferred on April 16, 2019, from the U.S. District Court for the Southern District of Florida to the U.S. District Court for the Northern District of Florida (Pensacola). The Northern District Court Clerk assigned Case No. 3:19-cv-00656-MCR-GRJ to the proceeding. The lawsuit is consolidated in the multidistrict litigation styled IN RE: 3M COMBAT ARMS EARPLUG PRODUCTS LIABILITY LITIGATION, MDL No. 3:19-md-02885-MCR-GRJ. The lawsuit is brought on behalf of the Plaintiff and other veterans to recover damages for their personal injuries incurred while in training and/or on active military duty, resulting from the Defendant's defective and unreasonably dangerous product, the Dual-ended Combat Arms(TM) earplugs. The Dual-ended Combat Arms(TM) earplugs were provided for single use while the Plaintiff was deployed and during his pre-deployment training. The Plaintiff alleges he now suffers from hearing loss as a direct result of 3M's admittedly defective products.[BN] The Plaintiff is represented by: Adam M. Moskowitz, Esq. Howard M. Bushman, Esq. Joseph M. Kaye, Esq. THE MOSKOWITZ LAW FIRM, PLLC 2 Alhambra Plaza, Suite 601 Coral Gables, FL 33134 Telephone: (305) 740-1423 E-mail: adam@moskowitz-law.com howard@moskowitz-law.com joseph@moskowitz-law.com - and - R. Seth Crompton, Esq. HOLLAND LAW FIRM, LLC 300 N. Tucker Blvd., Suite 801 St. Louis, MO 63101 Telephone: (314) 241-8111 Facsimile: (314) 241-5554 E-mail: scrompton@allfela.com The Defendant is represented by: Suzanne Marie Aldahan, Esq. HOLLAND AND KNIGHT 215 Royal Palm Way Boca Raton, FL 33432 Telephone: (561) 213-3932 E-mail: suzanne.aldahan@hklaw.com MDL 2885: Wimberley Suit over Combat Arms Earplugs Consolidated --------------------------------------------------------------- The case, GERALD WIMBERLEY, the Plaintiff, vs. 3M COMPANY, AEARO HOLDINGS, LLC, AEARO INTERMEDIATE, LLC AEARO, LLC and AEARO TECHNOLOGIES, LLC, the Defendants, Case No. 3:19-cv-01204-RV-MJF (N.D. Fla., April 29, 2019), seeks to hold 3M liable for hearing loss or damage they allegedly suffered while serving variously in the U.S. military, including during foreign conflicts. The Plaintiff contend that Combat Arms TM Earplugs, Version 2 ("CAEv2") manufactured and sold by Aearo were defectively designed and failed to provide adequate hearing protection. 3M denies these allegations. CAEv2, designed by Aearo in close collaboration with the U.S. military, represented a revolutionary breakthrough in hearing protection for service members. CAEv2 helped servicemembers better maintain situational awareness (e.g., to hear nearby voice commands) while also maintaining some protection from gunfire and other higher decibel sounds. CAEv2 met the U.S. military's specifications and helped the military provide hearing protection to service members. The Wimberley case is being consolidated with MDL 2885 in re: 3M Combat Arms Earplug Products Liability Litigation. The MDL was created by Order of the United States Judicial Panel on Multidistrict Litigation on April 3, 2019. These actions share common factual questions and centralization will eliminate duplicative discovery; prevent inconsistent pretrial rulings on Daubert issues and other pretrial matters; and conserve the resources of the parties, their counsel, and the judiciary. In the April 3, 2019 Order, the MDL Panel found that the actions in this MDL involve common questions arising out of allegations that the Defendants' Combat Arms earplugs were defective, causing plaintiffs to develop hearing loss and/or tinnitus. Issues concerning the design, testing, sale, and marketing of the Combat Arms earplugs are common to all actions. Presiding Judge in the MDL is Hon. Judge M. Casey Rodgers. The lead case is 3:19-md-02885-MCR-GRJ.[BN] Attorneys for the Plaintiff: Michael W. Gaines, Esq. Tim L. Bowden, Esq. LAW OFFICES OF TIM BOWDEN 306 Northcreek Blvd., Suite 200 Goodlettsville, TN 37072 Telephone: (615) 859-1996 Facsimile: (615) 859-1921 E-mail: mwgaines01@gmail.com bowden_law@bellsouth.net MENDAKOTA CASUALTY: Graves Sues Over Insurance Policy Breach ------------------------------------------------------------ Gregory Graves, on behalf of himself and all others similarly situated, Plaintiff, v. Mendakota Casualty Company, Defendant, Case No. 2019CH05372 (Circuit Ct., Cook Cty., Ill., April 26, 2019) is a class action lawsuit by Plaintiff, the named insured under a Mendakota automobile policy issued for private passenger auto physical damage coverage, including collision or physical damage other than collision, which requires payment of "Actual Cash Value" or "ACY" in the case of a total loss of the insured vehicle. One of the coverages Defendant offers is collision or physical damage other than collision coverage. Upon information and belief, Defendant systematically underpaid not just Plaintiff but numerous other putative class members, asserts the complaint. Moreover, Defendant failed to pay the amounts it owed its insureds for losses for total loss vehicles insured with ACY collision coverage. This lawsuit is brought by Plaintiff individually and on behalf of all other similarly situated insureds who suffered damages due to Defendant's practice of refusing to pay full ACV payments or full total loss payment ("FTLP") to first-party total loss insureds on physical damage coverage, including collision or physical damage other than collision coverage. Specifically, as a matter of policy, Defendant fails to include both sales tax and vehicle title transfer and vehicle registration fees ("Vehicle Title and Registration Fees") in its calculation of ACV when paying FTLP to its insureds, which is a breach of the insurance policy, says the complaint. Plaintiff owned a 2016 Jeep Grand Cherokee Laredo (VINIC4RJFAG1GC414027) and insured the vehicle with Defendant. Defendant is a large private-passenger automobile insurance company that operates, among other states, in Illinois.[BN] The Plaintiff is represented by: Douglas A. Millen, Esq. Robert J Wozniak, Esq. Brian M Hogan, Esq. FREED KANNER LONDON & MILLENLLC 2201 Waukegan Road, Suite 130 Bannock bum, IL 60015 Phone: (224) 632-4500 Facsimile: (224) 632-4521 Email: dmillen@fklmlaw.com rwozniak@tklmlaw.com bhogan@fklmlaw.com - and - Melissa S. Weiner, Esq. PEARSON, SIMON & WARSHAW, LLP 800 LaSalle Avenue, Suite 2150 Minneapolis, MN 55402 Phone: (612) 389-0600 Facsimile: (612) 389-0610 Email: mweiner@pswlaw.com - and - Scott Edelsberg, Esq. Jordan D. Utanski, Esq. EDELSBERG LAW, PA 19495 Biscayne Blvd. #607 Aventura, FL 33180 Phone: (305) 975-3320 Email: scott@edelsberglaw.com utanski@edelsberglaw.com - and - Andrew J. Shamis, Esq. SHAMIS & GENTILE, P.A. 14 NE 1st Avenue, Suite 400 Miami, FL 33132 Phone: (305) 479-2299 Email: ashamis@shamisgentile.com - and - Jeff Ostrow, Esq. Jonathan Streisfeld, Esq. KOPELOWITZ OSTROW FERGUSON WEISELBERG GILBERT One West Las Olas, Suite 500 Fort Lauderdale, FL 33301 Phone: (954) 525-4100 Facsimile: (954) 525-4300 Facsimile: (786) 623-0915 Email: ostrow@kolawyers.com streisfeld@kolawyers.com MERCHANT INDUSTRY: Fabricant Sues Over TCPA Violation ----------------------------------------------------- Terry Fabricant, individually and on behalf of all others similarly situated, Plaintiff, v. MERCHANT INDUSTRY, LLC, a New York Limited Liability Company, Defendant, Case No. 2:19-cv-03313 (C.D. Cal., April 25, 2019) seeks redress under the Telephone Consumer Protection Act ("TCPA") for Defendant's practice of placing automated telemarketing calls to cellular telephone numbers without prior express written consent. In order to sell Swipe4Free, Defendant purchases "leads" (i.e., names and contact information of potential buyers) from third parties and then places automated telemarketing calls to those "leads." The Defendant used VanillaSoft software to both manage its list of leads and to place the automated telephone calls. According to the complaint, the Defendant did not have Plaintiff's prior express written consent to place these calls. Defendant's calls harmed Plaintiff by violating his rights under the TCPA. Defendant's calls harmed Plaintiff by causing the very harm that Congress sought to prevent--a "nuisance and invasion of privacy." The Defendant's calls harmed Plaintiff by trespassing upon and interfering with his rights and interests in his cellular telephone, says the complaint. Plaintiff Fabricant is an individual and a resident of Los Angeles County, California. Defendant sells credit card processing equipment marketed as "Swipe4Free" to small businesses.[BN] The Plaintiff is represented by: PATRIC A. LESTER, ESQ. CONSUMER ATTORNEY ADVOCATES, INC. 5694 Mission Center Road, #385 San Diego, CA 92108 Phone: (619) 665-3888 Fax: (314) 241-5777 Email: pl@lesterlaw.com - and - TIMOTHY J. SOSTRIN, ESQ. KEOGH LAW, LTD 55 W. Monroe St., Suite 3390 Chicago, IL 60603 Phone: (312) 726-1092 Fax: (312) 726-1093 Email: TSostrin@KeoghLaw.com MIDLAND CREDIT: Class in Knight FDCPA Suit Has Prelim Approval -------------------------------------------------------------- In the case, RENEISHA KNIGHT, v. MIDLAND CREDIT MANAGEMENT INC, Civil Action No. 17-3118 (E.D. Pa.), Judge Mark A. Kearney of the U.S. District Court for the Eastern District of Pennsylvania granted the Plaintiff's Motion for class certification under Federal Rule of Civil Procedure 23. Finding that the Plaintiff amply satisfied prerequisites for a class under Federal Rule of Civil Procedure 23(a) and (b)(3), the Judge preliminarily certified the action to proceed as a class action for violations of the Fair Debt Collection Practices Act under Federal Rule of Civil Procedure 23(b)(3) on behalf of the Class defined as all consumers with an address in Philadelphia County, Pennsylvania who received collection letters from Midland Credit Management, Inc. dated on or after July 14, 2016 in substantially the same form as Exhibit A attached to the Second Amended Complaint, concerning debts incurred primarily for personal, household, or family purposes and originally owed to Capital One Bank, N.A. He appointed Reneisha Knight as the Class representative, and the Plaintiff's counsel, Zemel Law, LLC, as the Class Counsel. The Class Counsel shall, as soon as practicable, confer with the Defendant's counsel regarding appropriate notice to the Class compliant with Federal Rule of Civil Procedure 23(c)(2)(B). As soon as possible and no later than April 16, 2019, the Plaintiff's counsel will move under our Policies, including describing both parties' position on any remaining irreconcilable objection to the negotiated notice, to approve a form and protocol for notice to the Class to satisfy due process including under Rule 23. The opposition to the proposed notice will be filed within five days of the Class Counsel's motion for approval. A full-text copy of the Court's April 5, 2019 Order is available at https://is.gd/fLamsb from Leagle.com. RENEISHA KNIGHT, ON BEHALF OF HERSELF AND ALL OTHER SIMILARLY SITUATED CONSUMERS, Plaintiff, represented by ALEXANDER R. FERRANTE -- aferrante1@verizon.net -- GOLD & FERRANTE, DANIEL ZEMEL, ZEMEL LAW LLC & ELIZABETH EASLEY APOSTOLA, ZEMEL LAW LLC. MIDLAND CREDIT MANAGEMENT INC., Defendant, represented by ANDREW M. SCHWARTZ -- amschwartz@mdwcg.com -- MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN PC & STEPHEN KEIM -- sgkeim@mdwcg.com -- MARSHALL DENNEHEY. MIDLAND CREDIT: Dipisa Files FDCPA Suit in E.D. New York -------------------------------------------------------- A class action lawsuit has been filed against Midland Credit Management, Inc. The case is styled as Matthew T. Dipisa individually and on behalf of all others similarly situated, Plaintiff v. Midland Credit Management, Inc., Defendant, Case No. 2:19-cv-02467 (E.D. N.Y., April 26, 2019). The Plaintiff filed the case under 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.[BN] The Plaintiff is represented by: Craig B. Sanders, Esq. Sanders Law PLLC 100 Garden City Plaza, Suite 500 Garden City, NY 11530 Phone: (516) 203-7600 Fax: (516) 281-7601 Email: csanders@barshaysanders.com MIDLAND CREDIT: Johnson Files FDCPA Suit in E.D. New York --------------------------------------------------------- A class action lawsuit has been filed against Midland Credit Management, Inc. The case is styled as Robert J Johnson individually and on behalf of all others similarly situated, Plaintiff v. Midland Credit Management, Inc., Defendant, Case No. 1:19-cv-02479 (E.D. N.Y., April 26, 2019). The Plaintiff filed the case under 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.[BN] The Plaintiff is represented by: Craig B. Sanders, Esq. Sanders Law PLLC 100 Garden City Plaza, Suite 500 Garden City, NY 11530 Phone: (516) 203-7600 Fax: (516) 281-7601 Email: csanders@barshaysanders.com MOBILE TELESYSTEMS: Bragar Eagel Woos Investors for Class Suit -------------------------------------------------------------- Bragar Eagel & Squire, P.C., announces that a class action lawsuit has been filed in the U.S. District Court for the Eastern District of New York on behalf of all persons or entities who purchased or otherwise acquired Mobile TeleSystems PJSC (NYSE: MBT) securities between March 19, 2014 and March 7, 2019 (the "Class Period"). Investors have until May 20, 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) Mobile TeleSystems and its subsidiary were involved in a scheme to pay $420 million in bribes in Uzbekistan; (2) consequently, Mobile TeleSystems knew or should have known it would be forced to pay substantial fines to the U.S. government after disclosing in 2014 that the U.S. Department of Justice and Securities and Exchange Commission were investigating its Uzbekistan operations; (3) Mobile TeleSystems' level of cooperation with the U.S. government and remediation was lacking; (4) due to the aforementioned misconduct, Mobile TeleSystems would be forced to pay approximately $850 million in criminal penalties to the U.S. government; and (5) as a result, defendants' public statements were materially false and/or misleading at all relevant times. If you purchased Mobile TeleSystems 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, Esq. Melissa Fortunato, Esq. Bragar Eagel & Squire, P.C. Telephone: (212) 355-4648 Website: www.bespc.com Email: investigations@bespc.com fortunato@bespc.com walker@bespc.com [GN] MONSANTO CO: Oleyar Seeks to Recover Damages for Roundup Injuries ----------------------------------------------------------------- LORETTA OLEYAR v. MONSANTO COMPANY, Case No. 3:19-cv-00133 (E.D. Tenn., April 17, 2019), seeks to recover damages for the alleged injuries sustained by the Plaintiff as the direct and proximate result of the wrongful conduct and negligence of the Defendant in connection with the design, development, manufacture, testing, packaging, promoting, marketing, advertising, distributing, labeling, and selling of the herbicide Roundup(R), containing the active ingredient glyphosate. Ms. Oleyar maintains that Roundup(R) 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. Monsanto Company is a Delaware corporation with a principal place of business in St. Louis, Missouri. Monsanto is a multinational agricultural biotechnology corporation and the world's leading producer of glyphosate.[BN] The Plaintiff is represented by: Daniel V. Parish, Esq. WOLFF ARDIS, P.C. 5810 Shelby Oaks Drive Memphis, TN 38134 Telephone: (901) 763-3336 Facsimile: (901) 763-3376 E-mail: dparish@wolffardis.com - and - Jason Edward Ochs, Esq. OCHS LAW FIRM, PC 690 US 89, Suite 206 PO Box 10944 Jackson, WY 83001 Telephone: (307) 739-3959 Facsimile: (307) 235-6910 E-mail: Jason@ochslawfirm.com MOPHIE INC: Hid Juice Pack's Low Capacity, Dolar Suit Says ----------------------------------------------------------- DAN DOLAR, individually and on behalf of those similarly sisturated, PLAINTIFF, V. MOPHIE, INC., a California corporation, DEFENDANT, Case No. 30-2019-01066228-CU-BT-CXC (Cal. Super. Ct., Orange Cty., April 25, 2019) seeks redress for Defendant's unlawful, unjust, unfair, and deceptive practices in misrepresenting the capacity of its products in violation of state law during the applicable statute of limitations period. A power bank with a higher capacity, as is expressed in milliampere-hours ("mAh"), has a greater ability to recharge PEDs compared to a power bank with a lower capacity. The primary value and main differentiator is the power bank's capacity as compared to other power banks. Thus, consumers prefer and are willing to pay a premium for power banks with higher mAh ratings. Unfortunately for consumers, testing has shown that the Defendant's Products' actual capacity is substantially lower than what Mophie represents, notes the complaint. By deceiving consumers about the Products' capacity, Mophie is able to sell more of, and charge more for, the Products, than it could if they were labeled accurately. Further, Mophie was also motivated to mislead consumers to take away market share from competing products, thereby increasing its own sales and profits, says the complaint. Plaintiff purchased a Juice Pack compatible with his Pixel XL phone in 2017. Mophie manufactures, markets, and distributes for sale to consumers nationwide and in California a number of Power Banks under the Powerstation and Juice Pack labels.[BN] The Plaintiff is represented by: Nathan M. Smith, Esq. BROWN, NERI, SMITH & KHAN, LLP 11601 Wilshire Blvd, Suite 2080 Los Angeles, CA 90025 Phone: (310) 593-9890 Fax: (310) 593-9980 Email: nate@bnsklaw.com - and - D. Greg Blankinship, Esq. Sara K. Bonaiuto, Esq. FINKELSTEIN, BLANKINSHIP, FREI-PEARSON & GARBER, LLP 445 Hamilton Ave, Suite 605 White Plains, NY 10601 Phone (914) 298-3290 Email: gblankinship@fbfglaw.com sbonaiuto@fbfglaw.com - and - E. Michelle Drake, Esq. Joseph C. Hashmall, Esq. BERGER MONTAGUE PC 43 SE Main Street, Suite 505 Minneapolis, MN 55414 Phone (612) 594-5999; (612) 584-4470 Email: emdrake@bm.net jhashmall@bm.net MOWI ASA: Bagels & Baguettes Sues Over Salmon Price-fixing ---------------------------------------------------------- Bagels & Baguettes, on behalf of itself and all others similarly situated, Plaintiff, v. Mowi ASA (fka Marine Harvest ASA), Marine Harvest USA, LLC, Marine Harvest Canada, Inc., Ducktrap River of Maine LLC, Grieg Seafood ASA, Grieg Seafood BC Ltd., Bremnes Seashore AS, Ocean Quality AS, Ocean Quality North America Inc., Ocean Quality USA Inc., Ocean Quality Premium Brands, Inc., SalMar ASA, Leroy Seafood Group ASA, Leroy Seafood USA Inc., and Scottish Sea Farms Ltd., Defendants, Case No. 1:19-cv-21579 (S.D. Fla., April 25, 2019) is a lawsuit arising from unlawful coordination of the price of farm-raised salmon and salmon products derived therefrom which were sold by Defendants between July 1, 2015 and the present in violation of federal antitrust law and various state antitrust and unfair competition, consumer protection and unfair trade practices, and unjust enrichment laws. The European Commission ("EC") recently confirmed "that on 19 February 2019 its officials carried out unannounced inspections in several Member States at the premises of several companies in the sector of farmed Atlantic salmon." The EC commenced its investigation by sending a letter in early February 2019 to the world's dominant suppliers of farm-raised salmon and their affiliates, in which it explained that it had received information that the companies--Defendants--are "participating in or have participated in anti-competitive agreements and/or concerted practices related to different ways of price coordination in order to sustain and possibly increase the prices for Norwegian salmon". Plaintiff seeks to represent a Nationwide Class consisting of all commercial and institutional purchasers in the United States and its territories that purchased farm-raised salmon and/or products derived therefrom ("Farm-Raised Salmon"), once or more, other than directly from Defendants, entities owned or controlled by Defendants, or other producers of farm-raised salmon or products derived therefrom, from July 1, 2015 to the present, says the complaint. Mowi ASA (fka Marine Harvest ASA) ("Mowi") is a Norwegian seafood company with operations in several countries around the world.[BN] The Plaintiff is represented by: Samueal J. Dubbin, Esq. DUBBIN & KRAVETZ, LLP 1200 Anastasia Avenue Coral Gables, FL 33134 Phone: (305) 371-4700 Email: sdubbin@dubbinkravetz.com - and - Jonathan W. Cuneo, Esq. Daniel Cohen, Esq. Jennifer Kelly, Esq. Blaine Finley, Esq. CUNEO GILBERT & LADUCA, LLP 4725 Wisconsin Ave., NW, Suite 200 Washington, DC 20016 Phone: (202) 789-3960 Email: jonc@cuneolaw.com danielc@cuneolaw.com jkelly@cuneolaw.com bfinley@cuneolaw.com - and - Don Barrett, Esq. David McMullan, Esq. BARRETT LAW GROUP, P.A. P.O. BOX 927 404 Court Square Lexington, MS 39095 Phone: (662) 834-2488 Email: dbarrett@barrettlawgroup.com dmcmmullan@barrettlawgroup.com NATIONAL RECOVERY: Dicristo Files FDCPA Suit in E.D. New York ------------------------------------------------------------- A class action lawsuit has been filed against National Recovery Solutions, LLC. The case is styled as Mark Dicristo individually and on behalf of all others similarly situated, Plaintiff v. National Recovery Solutions, LLC, Defendant, Case No. 2:19-cv-02470 (E.D. N.Y., April 26, 2019). The Plaintiff filed the case under the Fair Debt Collection Practices Act. National Recovery Solutions LLC was founded in 2006. The company's line of business includes collection and adjustment services on claims and other insurance related issues.[BN] The Plaintiff is represented by: Craig B. Sanders, Esq. Barshay Sanders, PLLC 100 Garden City Plaza, Suite 500 Garden City, NY 11530 Phone: (516) 203-7600 Fax: (516) 281-7601 Email: csanders@barshaysanders.com NATIONWIDE MUTUAL FIRE: Onley Alleges Breach of Insurance Deal -------------------------------------------------------------- A class action complaint has been filed against Nationwide Mutual Fire Insurance Company for alleged breach of insurance contract and violation of Georgia law. The case is captioned WILLA ONLEY, individually and on behalf of all those similarly situated, Plaintiff, v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Defendant, Case No. 5:19-cv-00141-MTT (M.D. Ga., April 17, 2019). Georgia law and Defendant's insurance policies with Plaintiff Willa Onley and the putative class members have required Defendant to assess for and, where found, pay damages for diminution in value of Defendant's insureds' properties resulting from covered insurance claims. Despite these obligations, Defendant has reportedly failed to assess its insureds' properties for diminution in value and has never paid its insureds for any diminution in value which their properties may have incurred. In violation of Georgia law and in breach of its insurance contract with Plaintiff, Defendant failed to perform an assessment of Plaintiff's property for diminution in value that exists despite physical repairs of the water damage and failed to pay Plaintiff for such diminution in value to her insured home or deny the existence of diminished value. Nationwide Mutual Fire Insurance Company is a foreign insurance company that is incorporated in Ohio, and which maintains its principal place of business at One West Nationwide Boulevard, 1-04-701, Columbus, Ohio 43215-2220. The company is a licensed insurer in the state of Georgia. [BN] The Plaintiff is represented by: Adam P. Princenthal, Esq. PRINCENTHAL &MAY, LLC 750 Hammond Drive Building 12, Suite 200 Atlanta, GA 30328 Telephone: (678) 534-1980 E-mail: adam@princemay.com - and - Richard Kopelman, Esq. Clint W. Sitton, Esq. KOPELMAN SITTON LAW GROUP, LLC 5855 Sandy Springs Circle, Suite 300 Atlanta, GA 30328 Telephone: 404-351-5900 E-mail: clint@kopelmansitton.com richard@kopelmansitton.com - and - C. Cooper Knowles, Esq. THE LAW OFFICE OF C. COOPER KNOWLES, LLC 750 Hammond Drive Building 12, Suite 350 Atlanta, GA 30328 Telephone: (770) 668-2081 E-mail: cknowles@cckfirm.com - and - Michael J. Brickman, Esq. Kimberly Keevers Palmer, Esq. Nina Fields Britt, Esq. James C. Bradley, Esq. RICHARDSON, PATRICK,WESTBROOK & BRICKMAN, LLC 1037 Chuck Dawley Blvd., Bldg. A (29464) Post Office Box 1007 Mount Pleasant, SC 29465 Telephone: (843) 727-6500 E-mail: mbrickman@rpwb.com kkeevers@rpwb.com nfields@rpwb.com jbradley@rpwb.com NEW YORK HEALTH CARE: Class Action Lower Court Rulings Reversed --------------------------------------------------------------- Lisa M. Griffith, Esq. -- lgriffith@littler.com -- and Ira D. Wincott, Esq. -- iwincott@littler.com -- of Littler Mendelson, in an article for Mondaq, report that the day most anxiously anticipated (or dreaded) by the vast home care industry in New York has arrived, and a huge sigh of relief from home care agencies and New Yorkers who rely on their services can be heard across the state. An industry that has been fraught with hundreds of class action lawsuits was given the green light on March 26, 2019, to continue to follow the New York Department of Labor's (NY DOL) interpretative guidance and pay home care aides for 13 hours of a 24-hour shift, so long as the workers are afforded 8 hours for sleep breaks (5 of which are uninterrupted) and 3 hours for meal breaks. The April 2 decision in Andryeyeva v. New York Health Care, Inc. and Moreno v. Future Care Health Care Services, Inc., reversed lower appellate court and trial court rulings that refused to give deference to the NY DOL's interpretive guidance and directed that home care aides were entitled to compensation for every hour of a 24-hour shift, regardless of breaks. An alternative decision would have been devastating and quite literally could have led to the collapse of the industry. The Court of Appeals remanded to the lower courts the issue of whether class action treatment of cases is appropriate where home care aides do not receive the requisite sleep and meal breaks and are nonetheless paid for only 13 hours of a 24-hour shift. [GN] NORTHBOUND INVESTMENTS: Does not Pay Proper OT Wages, Says Suit --------------------------------------------------------------- ADAM ABRAHAM HERNANDEZ and all others similarly situated, Plaintiff, v. NORTHBOUND INVESTMENTS CORPORTION d/b/a BACCI'S PIZZA & PASTA, CHRISTOPHER M. GRAW, and DANIEL C. THOMPSON, Defendants, Case No. 3:19-cv-00996-G (N.D. Tex., April 25, 2019) is an action arising under the Fair Labor Standards Act ("FLSA"). The Defendants have employed several other similarly situated employees like the Plaintiff who have not been paid overtime for work performed in excess of 40 hours weekly and/or minimum wages as required by the Fair Labor Standards Act as a result of being paid set weekly salaries regardless of the hours actually worked from the filing of this complaint back at least three years, says the complaint. Plaintiff ADAM ABRAHAM HERNANDEZ worked for Defendants as a cook at a "Bacci's Pizza & Pasta" restaurant in Addison, Texas from on or about October 6, 2016 through on or about April 3, 2019. NORTHBOUND INVESTMENTS CORPORATION d/b/a BACCI'S PIZZA & PASTA is a company that regularly transacts business within Dallas County and Denton County.[BN] The Plaintiff is represented by: J.H. Zidell, Esq. Robert L. Manteuffel, Esq. Joshua A. Petersen, Esq. J.H. ZIDELL, P.C. 6310 LBJ Freeway, Ste. 112 Dallas, TX 75240 Phone: 972-233-2264 Fax: 972-386-7610 Email: zabogado@aol.com rlmanteuffel@sbcglobal.net josh.a.petersen@gmail.com NPS PROPERTY: Discrimination Victims' Suit Enlarged as Class Action ------------------------------------------------------------------- Maura McDermott, writing for Newsday.com, reports that a federal discrimination lawsuit against a company that owns and manages at least five Suffolk County apartment complexes was amended in an effort to make it a class action that would cover others who allegedly faced discrimination in seeking rentals. The lawsuit filed in U.S. District Court in Central Islip accused Lindenhurst-based NPS Property Corp. of discriminating against people based on their race, disability and source of income. In a statement, an attorney for NPS, Ilene Jaroslaw, Esq. said, "We believe the plaintiffs are deliberately mischaracterizing the facts and the law in this complaint. The properties in question house members of various races and nationalities, able-bodied and disabled persons, and subsidized and unsubsidized tenants. Like landlords throughout the New York metropolitan region, our clients welcome all renters who meet standard income and credit requirements." A judge would need to grant permission for the suit to proceed Esq NPS Property Corp as a class-action case. An attorney for the plaintiffs, Brian Corman, Esq. -- bcorman@cohenmilstein.com -- of the Washington, D.C., office of Cohen Milstein Sellers & Toll, said they have until Aug. 30 to seek class-action status. Jaroslaw said NPS will argue the case should not be allowed to go forward with class-action status. In the original lawsuit filed in June, West Babylon resident Doreen Kernozek and two housing groups, Long Island Housing Services and Suffolk Independent Living Organization, charged NPS with discriminating against Kernozek because she is disabled and receives a federal subsidy for people with disabilities, and also against others on the basis of their race, disability and source of income. NPS acknowledged in a September filing Kernozek tried to rent an apartment but said it did not discriminate against her or anyone else. The court document filed on March 22 added one plaintiff, Lori Gerardi of Patchogue, who charged NPS with discriminating against her because she is disabled and receives a federal housing subsidy for disabled people. The federal Fair Housing Act and state and local laws prohibit bias based on race and disability. Suffolk and Nassau county laws forbid discrimination based on source of income, such as government subsidies. Gerardi said in the amended lawsuit she was told by an NPS representative that tenants must have an income that is at least double the monthly rent, regardless of subsidies. That policy, as well as others in place at NPS properties, would "discourage anyone who … had a disability-based subsidy from applying or from even inquiring about the apartments," Corman said. The lawsuit seeks a change in policy to stop discrimination at NPS properties, he said. In the suit, Gerardi said she was turned down twice for apartments at South Shore Gardens, also known as South Shore Commons, a West Babylon complex operated by NPS. In 2017 Gerardi was told the complex had "reached its quota" for those receiving disability-related subsidies, and in 2018 she was told her income was not high enough and her subsidy would not be taken into consideration, according to the lawsuit. Gerardi, 54, has osteoarthritis, vascular disease, epilepsy, cancer and ruptured spinal discs, the lawsuit said. Before she joined the suit, the court filings focused on bias allegedly faced by Kernosek and by people hired by Long Island Housing Services to test for bias. In November 2016, Kernosek, who is disabled due to severe osteoporosis and high blood pressure, applied for an apartment at NPS' Holiday Square complex in West Babylon. She was rejected due to her low income, even though her subsidy covered most of the rent and she could afford the rest, the lawsuit stated. Suffolk Independent Living, which had been helping Kernosek find housing, contacted Long Island Housing Services to complain. Before either of the women applied for apartments at the complexes, Long Island Housing Services had been sending "testers" to NPS properties to check for discrimination, according to the lawsuit. The group filed complaints with federal, state and county agencies in 2017, alleging consistent patterns of bias against people who are African-American, disabled or recipients of government subsidies. [GN] NUTANIX INC: Pomerantz Investigating Securities Fraud Claims ------------------------------------------------------------ Pomerantz LLP is investigating claims on behalf of investors of Nutanix, Inc. ("Nutanix" or the "Company") (NASDAQ: NTNX). Such investors are advised to contact Robert S. Willoughby at rswilloughby@pomlaw.com or 888-476-6529, ext. 9980. The investigation concerns whether Nutanix and certain of its officers and/or directors have engaged in securities fraud or other unlawful business practices. On February 28, 2019, Nutanix issued a press release announcing the Company's financial and operating results for the second fiscal quarter of 2019. In the press release, Nutanix advised investors that "[l]ooking head, our third quarter guidance reflects the impact of inadequate marketing spending for pipeline generation and slower than expected sales hiring. We took a critical look at these areas and have taken actions to address them." Later that day, on a conference call discussing the Company's financial results, Nutanix revealed that despite its previous representations that the Company had been investing in sales and marketing and growing its business, in actuality Nutanix had held flat or decreased lead generation, the key driver of pipeline. As a result, Nutanix had missed its pipeline targets and Nutanix's financial guidance for upcoming quarters was significantly negatively impacted. Following these disclosures, Nutanix's stock price fell $16.39 per share, more than 32%, to close at $33.70 per share on March 1, 2019. With offices in New York, Chicago, Los Angeles, and Paris, The Pomerantz Firm -- http://www.pomerantzlaw.com-- is acknowledged as one of the premier firms in the areas of corporate, securities, and antitrust class litigation. Founded by the late Abraham L. Pomerantz, known as the dean of the class action bar, the Pomerantz Firm pioneered the field of securities class actions. Today, more than 80 years later, the Pomerantz Firm continues in the tradition he established, fighting for the rights of the victims of securities fraud, breaches of fiduciary duty, and corporate misconduct. The Firm has recovered numerous multimillion-dollar damages awards on behalf of class members. [GN] OHIO MULCH: Carter Seeks Unpaid Overtime Under Ohio Wage Act ------------------------------------------------------------ RAY CARTER, NATHAN DUNKLE, AND JASON BORDEN, on behalf of themselves and others similarly situated, Plaintiffs, v. OHIO MULCH SUPPLY, INC. and JIM WEBER II, Defendants, Case No. 2:19-cv-01632-GCS-CMV (S.D. Ohio, April 26, 2019) is a complaint against Defendant for their failure to pay employees overtime wages, seeking all available relief under the Fair Labor Standards Act of 1938 ("FLSA"), the Ohio Minimum Fair Wage Standards Act ("the Ohio Wage Act"); and the Ohio Prompt Pay Act ("OPPA"). Plaintiffs and Defendants' other hourly non-exempt employees at their Universal Road Facility regularly worked more than 40 hours per week, but they were not paid one and one-half times their regular rate for all of hours worked over 40 as a result of Defendants' automatic meal deduction policy, says the complaint. This resulted in unpaid overtime. Plaintiffs were jointly employed by Defendants. Ohio Mulch Supply, Inc. is a domestic for-profit corporation that operates and conducts substantial business activities in the Southern District of Ohio and jointly operates numerous stores throughout Ohio.[BN] The Plaintiffs are represented by: Matthew J.P. Coffman, Esq. COFFMAN LEGAL, LLC 1550 Old Henderson Road, Suite 126 Columbus, OH 43220 Phone: 614-949-1181 Fax: 614-386-9964 Email: mcoffman@mcoffmanlegal.com - and - Peter Contreras, Esq. Contreras Law, LLC 1550 Old Henderson Road, Suite 126 Columbus, OH 43220 Phone: 614-787-4878 Fax: 614-957-7515 Email: peter.contreras@contrerasfirm.com ORACLE CORP: Workers Seek Jury Trial in 401(k) Class Action ----------------------------------------------------------- Jacklyn Wille, writing for Bloomberg Law, reports that Oracle Corp. workers continue to push for a jury trial in their class action challenging the investment options in their $12 billion 401(k) plan. The workers say their claims are triable by jury because they seek to hold the Oracle defendants personally liable for the plan's monetary losses. This is a legal claim that can go before a jury, not an equitable claim that must be heard by a judge, the workers say in an April 2 filing. [GN] ORLANS PC: Garland Seeks to Certify Class & Subclasses ------------------------------------------------------ FREDDIE GARLAND, individually and on behalf of all others similarly situated, the Plaintiff, vs. ORLANS PC, et al., the Defendants, Case No. 2:18-cv-11561-DPH-RSW (E.D. Mich.), the Plaintiff asks the Court for an order: 1. taking class certification and to set briefing schedule the motion under advisement but deferring any further briefing or hearing on it for the time being: Class: "all persons to whom Orlans PC caused to be sent any version of the Orlans PC Foreclosure Letter in connection with mortgages conveyed for residential real property, which was not returned as undelivered by the U.S. Post Office"; Fair Debt Collection Practices Act Subclass "all individuals to whom Orlans PC caused to be sent any version of the Orlans PC Foreclosure Letter in connection with mortgages conveyed for residential real property in the United States, dated one year or less from the filing of the original Complaint in this action, which was not returned as undelivered by the U.S. Post Office, through the date that the Court issues an order certifying any class requiring notice in this matter, and through the date of entry of final judgment as to any class for which notice is not required under Federal Rule of Civil Procedure 23"; and RCPA Subclass "all individuals to whom Orlans PC caused to be sent any version of the Orlans PC Foreclosure Letter in connection with mortgages conveyed for residential real property in Michigan, which was not returned as undelivered by the U.S. Post Office, dated from six years prior to the filing of the Complaint through the date that the Court issues an order certifying any class requiring notice in this matter, and through the date of entry of final judgment as to any class for which notice is not required under Federal Rule of Civil Procedure 23" 2. establishing a discovery and briefing schedule for class certification; 3. scheduling a hearing on Plaintiff's Motion for Class certification in the future, after the issues have been fully briefed; 4. certifying the classes, as supplemented by any further modification and briefing after discovery, and appointing Plaintiff as class representative and his counsel as class 0 counsel; and 5. ordering such further relief as this Court deems just and appropriate.[CC] Attorneys for the Plaintiff and the Proposed Class: Andrew J. McGuinness, Esq. 122 S Main St, Suite 118 P.O. Box 7711 Ann Arbor, MI 48107 Phone: (734) 274-9374 E-mail: drewmcg@topclasslaw.com - and - Samuel G. Firebaugh, Esq. FIREBAUGH & ANDREWS PLLC 38545 Ford Rd, Ste 104 Westland, MI 48185 Telephone: (734) 722-2999 E-mail: samuelgfirebaugh@hotmail.com Attorneys for the Defendants: I. W. Winsten, Esq. Bruce L. Segal, Esq. HONIGMAN MILLER SCHWARTZ AND COHN LLP 660 Woodward Avenue, Suite 2290 Detroit, MI 48226 Telephone: (313) 465-7608 E-mail: iwinsten@honigman.com bsegal@honigman.com PARADISE OAKS: Young Files Class Suit in Cal. Super. Ct. -------------------------------------------------------- A class action lawsuit has been filed against Paradise Oaks Youth Services. The case is styled as Vanetta Young, Individually and on behalf of all similarly situated individuals, Plaintiff v. Paradise Oaks Youth Services, a California domestic nonprofit, Does 1-10, Defendants, Case No. 34-2019-00255174-CU-OE-GDS (Cal. Super. Ct., Sacramento Cty., April 25, 2019). The case type is stated as "Other Employment". Paradise Oaks Youth Services is a non-profit corporation licensed by the State Department of Social Services that began providing services in the Sacramento County.[BN] The Plaintiff is represented by Daniel F Gaines, Esq. PETER THOMAS: Court Partly Grants Bid to Dismiss Miller Suit ------------------------------------------------------------ In the case, KARI MILLER and SAMANTHA PAULSON, on behalf of themselves and those similarly situated, Plaintiffs, v. PETER THOMAS ROTH, LLC; PETER THOMAS ROTH GLOBAL, LLC; PETER THOMAS ROTH LABS LLC; and DOES 1-100, Defendants, Case No. C 19-00698 WHA (N.D. Cal.), Judge William Alsup of the U.S. District Court for the Northern District of California granted in part and denied in part Defendants Peter Thomas Roth, LLC and Peter Thomas Roth Global, LLC's motion to dismiss for lack of personal jurisdiction. The Plaintiffs are California residents who have filed a putative class action alleging false advertising regarding certain cosmetic products. They sued four entities bearing the name of Peter Thomas Roth, alleging all claims against each Defendant equally: PTR LLC; PTR Global; Peter Thomas Roth Designs, LLC; and Peter Thomas Roth Labs, LLC. The motion to dismiss is brought by two Defendants, PTR LLC and PTR Global only. As PTR Labs filed an answer to the Plaintiffs' complaint and does in fact manufacture, advertise and sell cosmetic products in California and operates a marketing and sales website, PTR Labs is not part of the motion to dismiss. The Plaintiffs allege that all the Defendants are "large skin care companies that market, advertise and sell" the "Water Drench" and "Rose Stem Cell" products at issue in their complaint. The "Water Drench" products represent that the active ingredient, hyaluronic acid, will draw moisture from the atmosphere into the user's skin and will hold 1,000 times its weight in water for up to 72 hours. The Rose Stem Cell products represent that rose stem cells are capable of repairing, regenerating, and rejuvenating human skin (Dkt. Specifically, the Plaintiffs assert six causes of action against PTR LLC, PTR Global, and PTR Labs arising from the manufacture and sale of each of both Rose Stem Cell Products and Water Drench Products, including (1) violation of the Consumer Legal Remedies Act, California Civil Code Section 1750, et seq.; (2) violation of Business and Professions Code Section 17500, et seq.; (3) fraud, deceit, and/or misrepresentation; (4) negligent misrepresentation; (5) violation of Business and Professions Code Section 17200, et seq.; and (6) unjust enrichment. Defendants PTR LLC and PTR Global have moved pursuant to Rule 12(b)(2) to dismiss for lack of personal jurisdiction, arguing that neither company purposefully directs any activity into California, the Plaintiffs' claims do not arise from either the Defendant's activities in California, and haling them into court in California would be unreasonable. As to PTR LLC, the Plaintiffs argue that it is subject to personal jurisdiction in California for two reasons: First, PTR Labs' website clearly stated that website users interact with and contract with PTR LLC (via Terms of Service and privacy agreement on the website). Second, PTR LLC purposefully availed itself of the benefits and protections of California law by settling a separate, unrelated case in this forum, when PTR Labs and PTR LLC were called on to pay civil fines for failure to provide health and safety warnings pursuant to Proposition 65 for a sunscreen sold in California. As to PTR Global, the Plaintiffs argue that it is subject to personal jurisdiction in California because PTR Labs acts as an agent for PTR Global. Judge Alsup finds that the jurisdictional questions arising from the supposed "typographical mistake" of naming PTR LLC on PTR Labs' website are enough to hold the subject open for jurisdictional evidentiary discovery. The Plaintiffs will have 75 days to conduct jurisdictional discovery. Thereafter, both sides may file supplements due two weeks later. He also finds that the Plaintiffs cannot establish personal jurisdiction over PTR LLC based solely on the argument that PTR LLC purposefully availed itself of the benefits and protection of California law by settling a Proposition 65 case in this forum. As to whether PTR Labs' California connections may be attributed to PTR Global under an agency theory for the purpose of establishing personal jurisdiction, the Judge finds that the Plaintiffs fail to show that PTR Global has minimum contacts with California. The connection of an address shared by PTR LLC and PTR Global fails to show control over PTR Labs. Finally, as to whether the Plaintiffs may have limited jurisdictional discovery, the Judge finds that the question of whether the presence of PTR LLC on PTR Labs' website was a typographical mistake or reflected some other connection between the two companies that would confer jurisdiction over PTR LLC in the action is serious enough to hold PTR LLC in for the present purpose of jurisdictional discovery regarding facts related to the website. Therefore, the Plaintiffs' request for a continuance to conduct further jurisdictional discovery against PTR LLC is granted. While the Plaintiffs allege in their opposition that PTR Global is in a principal-agent relationship with PTR Labs, they only provide conclusory allegations, not facts. Conclusory allegations are unsupported and fail to make a prima facie showing that the exercise of jurisdiction is proper. Therefore, the Plaintiffs' request for a continuance to conduct further jurisdictional discovery against PTR Global is denied. Based on the foregoing, Judge Alsup denied Defendant PTR LLC's motion to dismiss. The Plaintiffs' request for a continuance to conduct further jurisdictional discovery against PTR LLC is granted, with 75 days of jurisdictional discovery, to end on June 20, 2019. Thereafter, both sides may file supplements due July 2, 2019. The Judge granted Defendant PTR Global's motion for dismissal. The Plaintiffs' request to conduct further jurisdictional discovery against PTR Global is denied. A full-text copy of the Court's April 5, 2019 Order is available at https://is.gd/Aomzvf from Leagle.com. Kari Miller, on behalf of themselves and those similarly situated & Samantha Paulson, on behalf of themselves and those similarly situated, Plaintiffs, represented by Anthony J. Patek, Gutride Safier LLP, Seth Adam Safier -- seth@gutridesafier.com -- Gutride Safier LLP, Adam Gutride -- adam@gutridesafier.com -- Gutride Safier LLP, Kristen Gelinas Simplicio -- Kristen@gutridesafier.com -- Gutride Safier LLP, Kyle Wayne Wilson & Todd M. Kennedy -- todd@gutridesafier.com -- Gutride Safier LLP, pro hac vice. Peter Thomas Roth, LLC, Peter Thomas Roth Global, LLC & Peter Thomas Roth Labs LLC, Defendants, represented by Brad Michael Scheller, pro hac vice, Daniel J. Herling -- djherling@mintz.com -- Mintz Levin Cohn Ferris Glovsky & Popeo P.C., Nicole V. Ozeran -- NVOzeran@mintz.com -- Mintz Levin Cohn Ferris Glovsky and Popeo, P.C. & Nada I. Shamonki -- nshamonki@mintz.com -- Mintz Levin Cohn Ferris Glovsky Popeo. PLS FINANCIAL: Seeks Fifth Circuit Review of Vine Suit Ruling ------------------------------------------------------------- Defendants PLS Financial Services, Incorporated and PLS Loan Store of Texas, Incorporated, filed an appeal from a Court ruling in the lawsuit styled Lucinda Vine, et al. v. PLS Financial Services, Inc., et al., Case No. 4:18-CV-450, in the U.S. District Court for the Eastern District of Texas, Sherman. The appellate case is captioned as Lucinda Vine, et al. v. PLS Financial Services, Inc., et al., Case No. 19-90010, in the U.S. Court of Appeals for the Fifth Circuit.[BN] Plaintiffs-Respondents LUCINDA VINE, on behalf of themselves and for all others similarly situated, and KRISTY POND, on behalf of themselves and for all others similarly situated, are represented by: Howard Mark Burck, Esq. Daniel Raymond Dutko, Esq. HANSZEN LAPORTE, L.L.P. 14201 Memorial Drive Houston, TX 77079 Telephone: (713) 522-9444 E-mail: mburck@hanszenlaporte.com dutko@hanszenlaporte.com - and - Ryan Kees Higgins, Esq. RUSTY HARDIN & ASSOCIATES, LLP 1401 McKinney Street Houston, TX 77010 Telephone: (713) 652-9000 E-mail: rhiggins@rustyhardin.com - and - M. Mitchell Moss, Esq. SCOTTHULSE, P.C. 201 E. Main Street El Paso, TX 79901 Telephone: (915) 546-8217 E-mail: mmos@ScottHulse.com Defendants-Petitioners PLS FINANCIAL SERVICES, INCORPORATED, and PLS LOAN STORE OF TEXAS, INCORPORATED, are represented by: J. Austen Irrobali, Esq. Jonathan R. Patton, Esq. TILLOTSON LAW 1807 Ross Avenue Dallas, TX 75201 Telephone: (214) 382-3041 E-mail: airrobali@tillotsonlaw.com patton@tillotsonlaw.com - and - Jeffrey Mark Tillotson, Esq. TILLOTSON LAW 750 N. Saint Paul Street Dallas, TX 75201 Telephone: (214) 382-3040 E-mail: jtillotson@tillotsonlaw.com PNC BANK: Minor et al. Seek to Certify Collective FLSA Class ------------------------------------------------------------ In the class action lawsuit CASEY MINOR and ALEXIS YARBROUGH, individually and on behalf of all other similarly situated individuals, the Plaintiffs, v. PNC BANK, NA, the Defendant, Case No. 1:19-cv-00114-PLM-RSK (W.D. Mich.), the Plaintiffs move the Court pursuant to Section 16(b) of the Fair Labor Standards Act for entry of an order: 1. conditionally certifying a proposed collective FLSA class; 2. implementing a procedure whereby Court-approved Notice of Plaintiffs' FLSA claims is sent (via U.S. Mail, e-mail and text message) to: "all current and former Customer Service & Support Representatives who worked for PNC Bank, NA ("Defendant") at any of its call center facilities at any time on or after February 12, 2016 through judgment; and 3. requiring Defendant to identify all putative collective action members by providing a list of their names, last known addresses, dates and location of employment, phone numbers, and e-mail addresses in electronic and importable format within 10 days of the entry of the order.[CC] Attorneys for Plaintiffs and the Putative Collective/Class Members: Rod M. Johnston, Esq. Matthew L. Turner, Esq. Rod M. Johnston, Esq. SOMMERS SCHWARTZ, P.C. One Towne Square, 17th Floor Southfield, MI 48076 Telephone: (248) 355-0300 E-mail: mturner@sommerspc.com rjohnston@sommerspc.com POSCO: Massive Class Action Expected to Demand Payment From State ----------------------------------------------------------------- Jang Yee-ji, writing for The Hankyoreh, reports that government investigation findings attributing a 2017 earthquake in Pohang, North Gyeongsang Province, in South Korea, to drilling and water pumping by the Pohang Geothermal Energy Power Plant has the legal community focusing on the scale and scope of state compensation for the unprecedented "manmade" seismic disaster. In view of the large number of residents affected, some are predicting an "astronomical" sum when the compensation decision comes. A court appraisal of the government investigation cited variables including the scope of government employee responsibility. Prior to the government's publication of its findings, a group of 1,156 Pohang residents -- including members of the group Pan-Citizen Headquarters for Countermeasures in Response to the Pohang Earthquake -- requested a suit demanding compensation from the state, the geothermal power company Nexgeo, and Korean steel maker POSCO, which invested facilities and funding. A similar suit was filed in October 2018 by 71 residents. The number of residents taking part in lawsuits appears likely to grow substantially in the wake of the government investigation report on the earthquake's cause. Affected residents claim the government was at fault from the stage of selecting a site for the geothermal power plant. The complaint filed by the residents with the court stressed the state's responsibility, claiming that the "construction of a geothermal power plant in Heunghae Township in Pohang's Buk (North) district, which has the potential for triggering earthquake due to an active fault, was planned at the state level as part of a new and renewable energy project implemented under the Lee Myung-bak administration." Issue of whether government was aware of active fault line and ignored it. A judge said on March 21, 2019,, that factors such as cause-and-effect relationships, deliberateness, and unlawfulness are typically considered when deciding compensation. "In court, the determination of government fault will focus on whether they knew ahead of time about the active fault's presence and predicted the possibility of an earthquake," the judge said. This suggests the battle will focus on whether the government was aware of the active fault line's presence in the first place, whether it knowingly disregarded it, and, if it was aware, whether it had an objective basis for concluding it presented a low risk when it proceeded with the project. The findings published by the government do not in themselves offer immediate proof of the government's responsibility for compensation. "They would also need to debate the credibility of the investigation findings in court. We'll have to wait and see how the government responds to these findings going ahead," said a second judge. A third judge said, "The announcement is beneficial from the standpoint of the affected residents filing the suit in terms of gaining an early advantage." "If the project did go ahead despite government employees predicting the possibility of the earthquake, a high level of liability could be recognized," the judge predicted. Incident constitutes environmental pollution Given the unprecedented nature of the legal battle over an artificially induced earthquake, the residents' lawyers are working overtime to develop their argument. The position of the attorneys equates the earthquake with its vibrations and the resulting damages. Their argument holds that if the earthquake was triggered by shock waves (vibrations) affecting the fault in the process of pumping water in and out at high pressures, this constitutes an incident of environmental pollution. In particular, they note that the Act on Liability for Environmental Pollution Damage, which was enacted in December 2014, defines damages resulting from "vibrations" as a form of environmental pollution. The legal representatives are also claiming that POSCO "abetted" the activity. "POSCO was part of the consortium for the Pohang Geothermal Power Plant," explained Seoul Central Law Firm attorney Lee Gyeong-woo, Esq. who is one of the lawyers tasked with the case. "Having invested geothermal plant equipment and billions of won in funding for pump rental and other costs, they bear responsibility for compensation," Lee said. [GN] PRATT LLC: Chavez Suit Remanded to State Court ---------------------------------------------- Magistrate Judge Nathaniel M. Cousins of the U.S. District Court for the Northern District of California granted the Plaintiff's motion to remand the case, JUAN CHAVEZ, Plaintiff, v. PRATT (ROBERT MANN PACKAGING), LLC, Defendant, Case No. 19-cv-00719-NC (N.D. Cal.), to the Monterey County Superior Court. Chavez worked for Pratt as an hourly-paid, non-exempt employee from August current and former California employees of Pratt, consisting of 263 hourly employees and 1,183 temporary workers. Chavez and the putative class members are residents of California. Pratt is an LLC; its parent company was incorporated in Delaware and its principal place of business is in Georgia, so Pratt is a citizen of Delaware and Georgia for jurisdictional purposes. Chavez alleges that Pratt failed to compensate him and other class members for all hours worked, missed meal periods, and missed rest breaks. This failure to compensate included not receiving overtime wages, not receiving at least minimum wage, not receiving an additional hour of pay when a meal period or rest period was missed, not paying wages owed at discharge or resignation, not creating complete and accurate wage statements, and not keeping complete and accurate payroll records. When he started working at Pratt, Chavez signed an arbitration agreement. Chavez filed suit in Monterey County Superior Court with eight causes of action: (1) violation of California Labor Code Sections 510 and 1198 - unpaid overtime; (2) violation of California Labor Code Sections 226.7 and 512(a) - unpaid meal period premiums; (3) violation of California Labor Code Section 226.7 - unpaid rest period premiums; (4) violation of California Labor Code Sections 1194 and 1197 - failure to pay minimum wage; (5) violation of California Labor Code Sections 201 and 202 - failure to pay wages owed upon discharge or resignation; (6) violation of California Labor Code Section 226(a) - failure to provide complete and accurate wage statements; (7) violation of California Labor Code Sections 2800 and 2802 - failure to reimburse for necessary expenditures; and (8) violation of California Business & Professions Code Sections 17200 — unlawful business practices. Chavez seeks attorneys' fees and punitive damages as well as the statutory damages applicable to the violations alleged. Pratt removed the action to the Court under CAFA. Because the Court's jurisdiction should be determined first and foremost, the Order addresses the motion to remand before addressing the motion to compel arbitration. Pratt's notice of removal alleges that (1) the class includes over 100 members, (2) minimal diversity is satisfied, and (3) the amount in controversy exceeds $5 million. Chavez does not challenge that the class size is over 100 members or that minimal diversity is satisfied. The first two requirements for CAFA are therefore met. Chavez opposes Pratt's calculation of the amount in controversy, so the question before the Court is whether Pratt has established by a preponderance of the evidence that the amount in controversy exceeds $5 million. To meet its burden to show that the amount of controversy is over $5 million, Pratt provides a calculation of approximate meal and rest period penalties, unpaid final wages, wage statement penalties, unpaid overtime, minimum wage violations, and attorney's fees totaling $5,007,640. The data used in these calculations is established in a declaration of its Human Resources Manager, Dalia Quintero. Chavez challenges most of Pratt's calculations, but does not submit any evidence of his own to show that different calculation. Judge Cousins finds that the total amount placed in controversy in Pratt's notice of removal and supporting evidence is $4,620,387.50: Meal and Rest Period Penalties $1,189,812 (1 each per employee per week) Unpaid Final Wages (100% $2,060,400 violation rate) Unpaid Overtime $446,098 (20 minutes per employee week) Attorney's Fees (25%) $924,077 Total $4,620,387 As this is below the $5 million threshold required for original federal court jurisdiction under CAFA, the Judge finds that it does not have jurisdiction to hear the case. Therefore, he granted Chavez's motion to remand to the Superior Court of Monterey County. The Clerk of Court is ordered to remand the case promptly to the Superior Court. Because she has resolved the jurisdictional question above and determined that it lacks jurisdiction over the case, the Judge does not address the motion to compel arbitration. A full-text copy of the Court's April 5, 2019 Order is available at https://is.gd/qyWJ6l from Leagle.com. Juan Chavez, individually, and on behalf of other members of the general public similarly situated, Plaintiff, represented by Daniel J. Park -- dpark@justicelawcorp.com -- Justice Law Corporation & Douglas Han -- dhan@justicelawcorp.com -- Justice Law Corporation. Pratt (Robert Mann Packaging), LLC, a Delaware Company, Defendant, represented by Michael Neil Westheimer -- michael.westheimer@ogletree.com -- Ogletree, Deakins, Nash, Smoak & Stewart, P.C. & Jared Lee Palmer -- jared.palmer@ogletreedeakins.com -- Ogletree, Deakins, Nash, Smoak & Stewart, P.C.. PRATT ROBERT: Chavez Appeals N.D. California Decision to 9th Cir. ----------------------------------------------------------------- Defendant Pratt (Robert Mann Packaging), LLC, filed an appeal from a Court ruling in the lawsuit titled Juan Chavez v. Pratt (Robert Mann Packaging), LLC, Case No. 5:19-cv-00719-NC, in the U.S. District Court for the Northern District of California, San Jose. The appellate case is captioned as Juan Chavez v. Pratt (Robert Mann Packaging), LLC, Case No. 19-80049, in the United States Court of Appeals for the Ninth Circuit.[BN] Plaintiff-Respondent JUAN CHAVEZ, individually, and on behalf of other members of the general public similarly situated, is represented by: Douglas Han, Esq. JUSTICE LAW CORPORATION 410 Arden Avenue Glendale, CA 91203 Telephone: (818) 230-7502 Facsimile: (818) 230-7259 E-mail: dhan@justicelawcorp.com Defendant-Petitioner PRATT (ROBERT MANN PACKAGING), LLC, a Delaware Company, is represented by: Michael Neil Westheimer, Esq. OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. Steuart Tower One Market Plaza San Francisco, CA 94105 Telephone: (415) 442-4810 E-mail: michael.westheimer@ogletree.com PREMIERE CENTER: Bush Sues Over Unsolicited Telemarketing Calls --------------------------------------------------------------- KATIE BUSH, individually and on behalf of all others similarly situated, Plaintiff, v. PREMIERE CENTER FOR COSMETIC SURGERY OF TAMPA, INC., a Florida corporation, Defendant, Case No. 1:19-cv-21584-MGC (S.D. Fla., April 25, 2019) seeks to secure redress for violations of the Telephone Consumer Protection Act ("TCPA"). To promote its services, Defendant engages in unsolicited marketing, harming thousands of consumers in the process, says the complaint. Through this action, Plaintiff seeks injunctive relief to halt Defendant's illegal conduct, which has resulted in the invasion of privacy, harassment, aggravation, and disruption of the daily life of thousands of individuals. Plaintiff also seeks statutory damages on behalf of herself and members of the class, and any other available legal or equitable remedies, says the complaint. Plaintiff is a natural person who was a resident of Miami-Dade County, Florida. Defendant is a plastic surgery center that offers a variety of cosmetic treatments.[BN] The Plaintiff is represented by: Andrew J. Shamis, Esq. Garrett O. Berg, Esq. SHAMIS & GENTILE, P.A. 14 NE 1st Avenue, Suite 1205 Miami, FL 33132 Phone: 305-479-2299 Email: ashamis@shamisgentile.com gberg@shamisgentile.com - and - Scott Edelsberg, Esq. EDELSBERG LAW, PA 19495 Biscayne Blvd #607 Aventura, FL 33180 Phone: 305-975-3320 Email: scott@edelsberglaw.com RACK ROOM: Goldschmidt Seeks to Certify TCPA Class -------------------------------------------------- In the class action lawsuit MAXWELL GOLDSCHMIDT, individually and on behalf of all others similarly situated, the Plaintiff, v. RACK ROOM SHOES, INC., a foreign for-profit corporation, the Defendant, Case No. 1:18-cv-21220-KMW (S.D. Fla.), the Plaintiff ask the Court for an order: 1. certifying a class with respect to his claim related to Defendant's violation of the Telephone Consumer Protection Act: "all persons within the United States who created a Rack Room Rewards account at the point-of-sale at a Rack Room store and either provided their cellular telephone number in person at that time or subsequently through Defendant's website, and who were then sent a Rewards Program Message, using the SalesForce Marketing Cloud platform, containing the same language as the text messages received by Plaintiff on June 19, 2017, August 4, 2017, November 22, 2018, or February 8, 2018, to said person's cellular telephone number"; 2. designating himself as class representative; and 3. designating law firms of Hiraldo P.A., Edelsberg Law, P.A., and Beaumont Costales LLC as class counsel. Rack Room operates shoe stores nationwide. As part of a comprehensive marketing strategy, Rack Room launched a "rewards" program designed to encourage repeat business. To promote the rewards program. At issue here are the following four Rewards Program Messages Plaintiff and the Class received on June 19, 2017, August 4, 2017, November 22, 2018, and February 8, 2018.[CC] Counsel for the Plaintiff and the Putative Class: Scott Edelsberg, Esq. EDELSBERG LAW, P.A. 2875 NE 191 st ST, No. 703 Aventura, FL 33180 Telephone: 305-975-3320 E-mail: scott@edelsberglaw.com - and - Manuel S. Hiraldo, Esq. HIRALDO P.A. 401 E. Las Olas Boulevard, Suite 1400 Ft. Lauderdale, FL 33301 E-mail: mhiraldo@hiraldolaw.com Telephone: 954-400-4713 - and - Roberto Luis Costales, Esq. Emily A. Westermeier, Esq. Jonathan M. Kirkland, Esq. BEAUMONT COSTALES LLC 3801 Canal Street, Suite 207 New Orleans, LA 70119 Telephone: 504-534-5005 E-mail: rlc@beaumontcostales.com RIPPLE LABS: Token Purchasers File Class Action Suit ---------------------------------------------------- Robbins Geller Rudman & Dowd LLP said that a class action has been commenced on behalf of purchasers of Ripple Labs Inc. ("Ripple") tokens ("XRP") during the period between July 3, 2015 through the present (the "Class Period"). This action was filed in California Superior Court, San Mateo County, and subsequently removed to the Northern District of California. The action is captioned In re Ripple Labs Inc. Litig., Case No. 18-cv-06753. The Private Securities Litigation Reform Act of 1995 permits any investor who purchased XRP during the Class Period to seek appointment as lead plaintiff. A lead plaintiff acts on behalf of all other class members in directing the litigation. The lead plaintiff can select a law firm of its choice. An investor's ability to share in any potential future recovery is not dependent upon serving as lead plaintiff. If you wish to serve as lead plaintiff of the purported class, you must move the Court no later than 60 days from today. If you wish to discuss this action, receive a copy of the complaint, or have any questions concerning this notice or your rights or interests, please contact plaintiff's counsel, Brian O'Mara of Robbins Geller at 800/449-4900 or 619/231-1058, or via e-mail at bomara@rgrdlaw.com. The complaint charges Ripple, Ripple's wholly owned subsidiary, XRP II, LLP, and certain of Ripple's controlling senior executives and directors with violations of the Securities Act of 1933 ("Securities Act"). The complaint alleges that defendants sold unregistered securities to investors in violation of Sections 5, 12(a)(1), and 15 of the Securities Act. Defendants are liable in their capacities as issuers, statutory sellers, and/or direct or indirect offerors of XRP. Plaintiff seeks to recover damages on behalf of all purchasers of XRP during the Class Period (the "Class"). Contact: Brian O'Mara, Esq. Robbins Geller Rudman & Dowd LLP Telephone; 800/449-4900 619/231-1058 Email: bomara@rgrdlaw.com [GN] RIPPLE: Class Suit Still at Federal Court; May 21 Deadline Set -------------------------------------------------------------- Akash Girimath, writing for AMBCrypto, reports that Ripple's long-pending class action lawsuit has taken a step further as the courts have denied the plaintiff's motion to move the case to the state courts and asked the plaintiffs to appoint a lead plaintiff/class representative. There are four cases against Ripple that allege that XRP is a security and that Ripple violated state and federal laws by failing to register it as a security. The four cases were brought forward by Zakinov, Oconer, Coffey, and Greenwald. Jake Chervinsky, Esq. -- jake.chervinsky@kobrekim.com -- a lawyer at Kobre & Kim LLP, tweeted the developments: "Last month, the federal court denied the plaintiffs' motions to return to state court, so the case will now stay federal. At the time, I called this a "minor but meaningful" victory for Ripple. It's a battle they fought hard to win, but a small one at the start of a long war." The judgment on the class action suit as explained by Jake Chervinsky is binding on the whole class. If Ripple resolved one class action, it would mean that XRP wouldn't be labeled as "security" for all the plaintiffs. The court has set a schedule for the litigation this year and the next phase of litigation include appointing a lead plaintiff, re-filing a consolidated complaint, and responding to the complaint. The court has provided the plaintiffs until May 20, 2019, to appoint a lead plaintiff and select a counsel for representing the class lead plaintiff. Jake Chervinsky explained the next step in his tweet: ". . . after lead plaintiff & lead counsel are appointed, the Court's order gives them 45 days to file a new consolidated complaint asserting every legal violation that the class believes Ripple committed. At the very earliest, the consolidated complaint will be due in July." Ripple will be provided 45 days to respond to the consolidated complaint by the lead plaintiff, and it could take until September 2019 for Ripple to come up with a response on the matter. As suggested by Chervinsky, Ripple could also respond to the complaint by motion to dismiss, giving Ripple 30 additional days to reply. [GN] RIUTEL FLORIDA: Honeywell Files ADA Suit in S.D. Florida -------------------------------------------------------- A class action lawsuit has been filed against RIUTEL FLORIDA, INC. The case is styled as Cheri Honeywell, Lanie Quarterman, individually and on behalf of all others similarly situated, Plaintiffs v. RIUTEL FLORIDA, INC., Defendant, Case No. 1:19-cv-21644-XXXX (S.D. Fla., April 26, 2019). The Plaintiff filed the case under the Americans with Disabilities Act. Riutel Florida, Inc. filed as a Domestic for Profit Corporation in the State of Florida.[BN] The Plaintiffs are represented by: Jessica Lynn Kerr, Esq. Jessica L.Kerr, P.A. dba The Advocacy Group 200 S.E. 6th Street, Suite 504 Fort Lauderdale, FL 33301 Phone: (954) 282-1858 Fax: (844) 786-3694 Email: service@advocacypa.com ROTHMANS BENSON: Class Suit Ruling Forces PM Unit to Bankruptcy --------------------------------------------------------------- MercoPress reports that Philip Morris International Inc. on March 22, 2019, said its Canadian unit, Rothmans, Benson & Hedges Inc (RBH), was granted creditor protection, following a tobacco class action ruling in Quebec. Morris International said it would deconsolidate RBH from its financial statements, and it cut its full-year 2019 diluted earnings per share forecast to at least US$4.90 at prevailing exchange rates, from at least US$5.28 in the forecast it made on March 4, shortly after the ruling in Quebec. The Court of Appeal of Quebec upheld the bulk of a 2015 decision that awarded around CUS$15 billion (US$11.19 billion) to smokers in the Canadian province, a blow to several big tobacco companies, including RBH. On an adjusted basis, the current forecast for full-year 2019 represents earnings per share growth of at least 8% over last year, the Marlboro cigarette maker said. The deconsolidation, which will not have an impact on the company's current annualized dividend rate, will result in an estimated one-time non-cash charge of about US$ 0.10 per share, it said. The operating cash flow for full-year 2019 is now estimated to be about US$ 9.5 billion, down from "at least US$ 10 billion" in the forecast it made on Feb. 7. The creditor protection process, granted by the Ontario Superior Court of Justice, will allow RBH to carry on its business in the ordinary course, Philip Morris added. [GN] ROUND ONE: Wilson Seeks Penalties for Missed Meal, Rest Breaks -------------------------------------------------------------- GILBERT WILSON, on behalf of himself and others similarly situated, Plaintiff, v. ROUND ONE ENTERTAINMENT INC. and DOES 1 to 100, inclusive, Defendants, Case No. 19STCV14492 (Cal. Super. Ct., Los Angeles Cty., April 25, 2019) is a class action lawsuit seeking unpaid wages and interest thereon for Defendants' failure to provide meal periods and rest periods; statutory penalties for failure to provide accurate wage statements; waiting time penalties in the form of continuation wages for failure to timely pay employees; injunctive relief and other equitable relief; reasonable attorney's fees pursuant to Labor Code costs; and interest brought on behalf of Plaintiff and others similarly situated. The complaint alleges that Defendants failed to count Plaintiff and similarly situated employees' "on duty" meal periods as hours worked. In addition, Defendants failed to provide meal period premium wages to Plaintiff and other similarly situated employees to compensate them for workdays they did not authorize or permit Plaintiff and similarly situated employees to take duty-free meal periods. The Defendants also maintained a policy, practice, and/or procedure that failed to provide premium wages to Plaintiff and similarly situated employees to compensate them for workdays they did not receive legally-compliant duty-free rest periods as required by California law, says the complaint. Plaintiff was employed by Defendants as an hourly non-exempt employee from on or about August 2016 through January 2019. CONTINENTAL CURRENCY is authorized to do business within the State of California.[BN] The Plaintiff is represented by: Joseph Lavi, Esq. Vincent C. Granberry, Esq. LAVI & EBRAHIMIAN, LLP 8889 W. Olympic Blvd., Suite 200 Beverly Hills, CA 90211 Phone: (310) 432-0000 Facsimile: (310) 432-0001 Email: jlavi@lelawfirm.com vgranberry@lelawfirm.com SHARP GROSSMONT: Admits Recording of Gynecological Procedures ------------------------------------------------------------- Ephrat Livni, writing for Quartz, reports that the Sharp Grossmont Hospital in San Diego, California and Sharp HealthCare are terribly sorry. Yes, admits Sharp president and CEO Chris Howard in an April 4 letter, hospital authorities did secretly record numerous private gynecological procedures in three "Women's Center" rooms. But they didn't mean to do it. They promise that all the recordings are locked away in a safe and that they won't do it again. The letter comes after a series of lawsuits made the hospital's error a matter of public knowledge. In 2016, patients sued Sharp HealthCare and Sharp Grossmont Hospital, alleging privacy violations and negligence stemming from the video recordings, as Buzzfeed News reported in March. But a court denied the plaintiffs' request to be heard in a class action lawsuit. So in March, 81 women signed on to a similar suit; the plaintiffs argue that, from July 2012 to June 2013, the healthcare provider secretly recorded everything from births to hysterectomies to sterilizations and more without warning patients. The plaintiffs only knew that they had been covertly recorded because a third-party administrator told them, their lawyer tells WBAL TV. Now, Sharp says it wants to address the "community" directly and explain what actually happened. Since lawsuits are pending, however, Sharp isn't actually saying that much. What it did reveal in its letter is that the company began the secret recordings, using motion sensor cameras in computers, as part of an internal drug investigation. After receiving reports of missing equipment and drugs in the anesthesia carts in the three rooms serving women, the hospital authorities interviewed personnel and tried to find the culprit because "[u]nauthorized removal or misuse of medication by a doctor or other medical professional can present a threat to patient safety," the letter explains. "We would never want to put our patients at risk for this kind of harm," Howard writes. When the investigation yielded no information, Sharp installed cameras on the carts, intending only to record what was happening in the carts' immediate vicinity. Things didn't go as planned, though. It turned out that the cameras were recording extremely private procedures of hundreds of women over nearly a year. According to the complaint, patients were "at their most vulnerable." The women captured on video (paywall) were "conscious and unconscious, partially robed on operating room tables, undergoing medical procedures and communicating with their doctors and medical personnel." The complaint, filed in California state court, alleges that Sharp not only violated patient privacy by using the secret cameras, but was also negligent in handling the recordings. Videos were stored on computers in hospital rooms and weren't password protected. There's no log to document who might have viewed them. Allison Goddard, an attorney for the plaintiffs, told CNN. "It's horrifying to think that, especially in today's day and age of the ubiquity of videos on the internet, if one of those videos were to get in the wrong hands, there's no controlling it. It takes your own medical care outside your own control." [GN] SINEMIA: Faces Class Action Following Customer Complaints --------------------------------------------------------- Brian Heater, writing for TechCrunch, reports that when Sinemia first came across our radar, the company was happily riding the wave of anti-MoviePass publicity. With its chief competition in the midst of what looked to be a historic collapse, Sinemia happily grabbed headlines as a what looked to be like a more stable alternative for movie ticket subscriptions. Last July, at the height of MoviePass' meltdown, we asked Sinemia co-founder and CEO Rifat Oguz how he planned to avoid a similar fate. "By not providing unlimited tickets. But providing two tickets for $9.99 with more flexible options and features, we might not have grown as fast as MoviePass, but we've grown more sustainably," he answered, happy to contrast the two companies. Another key difference between the two competitors is that Sinemia isn't public, so any struggles it's had over the past year have largely been out of the public eye. Not entirely, however. Not in the age of social media. As I noted in a piece, every Sinemia story that's run on this site, no matter how minor, has been bombarded with a deluge of Twitter criticism. It's a wide-ranging laundry list of complaints at first glance. Sinemia's Twitter support team appears to be working overtime to address them, but the sheer number of critical responses is unlike anything I've seen doing this job. The primary complaints generally fall into three separate, but sometimes overlapping, categories. 1. Hidden fees 2. Cancellations without refunds 3. Widespread app problems Earlier, we spoke to Oguz about the service's ongoing issues. It was a short call, squeezed between meetings the executive was running to at CinemaCon in Las Vegas. "As CEO, I can say, we're still learning," he said in a humble tone. "I think we're learning in a way. As we spoke, Sinemia issued a press release noting the launch of "two new customer service websites." It's not the kind of announcement companies tend to brag about in PR emails, but it seems clear the sheer volume of negative feedback has caused Sinemia to be more proactive in highlighting the steps it's taking to address its very vocal, angry subscribers. It echoes a move made by the company, when it sent its announcement of a new $15-a-month Always Unlimited plan accompanied by a lengthy "Account Termination Media Alert" that outlined its aggressive moves in March to cancel accounts over "fraudulent activity and/or misuse of the service." Like MoviePass before it, Sinemia began a process of terminating accounts en masse for violations of terms and generally gaming the system. In a statement, the service gave the following reasons as cause for potential account termination. -- Unauthorized use of the Sinemia card/cardless outside of its intended purposes, resulting in fraudulent financial activity. For example, this could be purchasing concessions at the theater instead of a movie ticket. -- Using multiple Sinemia accounts on the same device. -- Not checking in at the theater before or after your movie. -- Seeing the same movie more than three times. -- Creating multiple Sinemia accounts for the same person. -- Sharing one's Sinemia membership to buy tickets for other people. This includes not only people buying tickets and selling to others but also people sharing their own tickets with friends and family members. -- Manipulation of location data resulting in deceptive ticket purchases. For example, faking GPS data on a phone. -- Reasonable suspicion of fraud and/or abuse. But while cancellation complaints do appear to have accelerated in March, the truth is that negative feedback against the service dates back further. In late February, Pennsylvania law firm Chimicles Schwartz Kriner & Donaldson-Smith filed a class action suit in Delaware (not to be confused with the on-going patent dispute with MoviePass), the state in which the now largely Los Angeles and Turkey-based company was incorporated. The 50-page filing doesn't mince words, with statements like, "Sinemia fleeces consumers with an undisclosed, unexpected, and not-bargained-for processing fee each time a plan subscriber goes to the movies using Sinemia's service." Benjamin F. Johns, a partner and plaintiff in the case against Sinemia, told TechCrunch that the firm has received more than 2,000 complaints from current or former Sinemia subscribers. "I'll be very transparent about our litigation strategy: we want to certify a class consisting of all of the Sinemia consumers who were harmed in the same way by the same defective conduct, and then get the case in front of a jury as quickly as possible," the lawyer said in a statement to TechCrunch. "We think our clients and the thousands of others like them have compelling stories to tell, and we look forward to having an opportunity to present it in court." Asked whether the 2,000 number sounded high, Oguz simply responded, "No. It's a small number if you compare it with our user base." Because it's not a publicly traded company, Sinemia is not required to disclose such numbers, and the executive didn't offer much in the way of specifics, only saying that it has "grown almost 50 percent month over month for the last 15 months." Oguz did address growing customer complaints around Sinemia's app. Like many of the other ongoing issues with the service, complaints run the gamut. The most commonly cited, however, involve things like double charges, error messages and frequent pop-ups explaining that the app is "down for maintenance." According to users, these kinds of issues have the tendency to pop up when trying to purchase tickets to popular features like Captain Marvel and Us. Oguz discussed the maintenance issues in a recent interview with IndieWire that the publication describes as, "at times[…]contentious," adding that he "express[ed] surprise" upon hearing some of these complaints read back to him. The tone of our own conversation was ultimately a bit less combative than that interview, with Oguz admitting that Sinemia's app has been experiencing issues. "Yeah," he answered, agreeing to the premise that the app's problems appear to be "pretty widespread." It's for that reason, he explained, that Sinemia is launching two independent service websites to address the problems with the app and account terminations. "We are taking it seriously," he insisted. "We are looking at every comment. We didn't found the company a year ago. It started about five years ago. We are taking every negative comment very seriously." At the very least, a pending lawsuit and months of wall-to-wall customer complaints on Twitter and Reddit do appear to have moved the needle somewhat. Just how much and how Sinemia will approach disgruntled users going forward remains to be seen. But like MoviePass before it, it's hard to shake the notion that so much negative publicity has left an irreparable mark on the company just as it started to make a name for itself -- not to mention a sea of irate consumers in its wake. Fittingly, Oguz's comments echo those of Ted Farnsworth. In our recent interview, the CEO of MoviePass parent Helios and Matheson suggested that the service was a victim of its own success, growing the service faster than its staff could ultimately manage. Similarly, Oguz told us, "Our subscriber numbers have grown more than expected. Even after last August, we weren't expecting to go that much, that fast. When we're growing, we're also improving ourselves, and we're trying to find a way to maintain and to sustain." But as difficult as managing that success may have been for the company, its greatest challenge is still ahead of it: convincing thousands of disgruntled fans -- and possibly a courtroom -- that its worst days are behind it. [GN] SITO MOBILE: Kahn Swick Probing Executives ------------------------------------------ Former Attorney General of Louisiana, Charles C. Foti, Jr., Esq., a partner at the law firm of Kahn Swick & Foti, LLC ("KSF"), announces that KSF has commenced an investigation into SITO Mobile, Ltd. (NasdaqCM: SITO). On January 3, 2017, the Company disclosed negative quarterly results for the quarter ending December 31, 2016 that were "negatively affected this year by restrained advertising spending during a period of heightened and elongated media focus on this year's U.S. election." The results contradicted positive statements made previously by the Company's Chief Executive Officer Jerry Hug on November 14, 2016 regarding revenue growth with "a very positive outlook for the remainder of this year and throughout 2017" and that there would not be a significant drop off from the election. Thereafter, the Company and certain of its executives were sued in a securities class action lawsuit, charging them with failing to disclose material information, violating federal securities laws. Recently, the court presiding over that case denied the Company's motion to dismiss in part, allowing the case to move forward. KSF's investigation is focusing on whether SITO's officers and/or directors breached their fiduciary duties to SITO's shareholders or otherwise violated state or federal laws. If you have information that would assist KSF in its investigation, or have been a long-term holder of SITO shares and would like to discuss your legal rights, you may, without obligation or cost to you, call toll-free at 1-877-515-1850 or email KSF Managing Partner Lewis Kahn ( lewis.kahn@ksfcounsel.com ), or visit https://www.ksfcounsel.com/cases/nasdaqcm-sito/ to learn more. Contact: Lewis Kahn, Esq. Managing Partner Kahn Swick & Foti, LLC 1100 Poydras St., Suite 3200 New Orleans, LA 70163 Telephone: 1-877-515-1850 Website: www.ksfcounsel.com. Email: lewis.kahn@ksfcounsel.com [GN] SNAP: Kessler Topaz to Remain in Charge of Class Action ------------------------------------------------------- Alison Frankel, writing for Reuters, reports that U.S. District Judge Stephen Wilson of Los Angeles ruled on April 2 that a group of Snap investors should serve as the lead plaintiff in a securities class action claiming the company failed to disclose discouraging user data in advance of its March 2017 IPO. The judge picked the coalition of five shareholders over two candidates with bigger losses, including the New Mexico State Investment Council. His ruling means that Kessler Topaz Meltzer & Check, which represents the newly appointed Snap investor group, will remain in charge of a case it has been litigating since May 2017. Scratching your head over why a lead plaintiff was just appointed in a case that has been under way for two years? It's a complicated story, as I'll explain, but one that I suspect will be increasingly familiar as institutional investors step back from securities class actions and leave leadership of the litigation to individual investors. The Snap lead plaintiff drama is a precautionary tale. Kessler Topaz first won appointment to serve as lead counsel in the Snap class action back in September 2017, representing an investor who lost about $300,000 during the period of time allegedly tainted by Snap's inadequate disclosures. The firm sank thousands of hours into the case, developing evidence that last year prompted the Justice Department and the Securities and Exchange Commission to subpoena Snap about its IPO disclosures. Snap has said that it is cooperating with the government inquiries. It contends its IPO disclosures were "accurate and complete" and that the shareholder fraud class action is meritless. Snap counsel Boris Feldman of Wilson Sonsini Goodrich & Rosati declined comment for this story. By last summer, Kessler Topaz had survived Snap's motion to dismiss and was set to litigate a motion to certify the class. The case even had a scheduled trial date. But there was a snag: The court-appointed lead plaintiff didn't want to stay in the case because of health concerns. Kessler Topaz offered a solution. It had already proposed additional shareholders as class representatives. Snap had even deposed them. So Kessler Topaz suggested swapping in those shareholders as lead plaintiffs. The substitution, it said, would allow the class action to move ahead efficiently, with new lead plaintiffs who were fully up to speed on the case. Snap's lawyers at Wilson Sonsini Goodrich & Rosati cried foul, arguing that the Private Securities Litigation Reform Act explicitly prohibits lawyers from driving shareholder fraud cases. Judge Wilson put Kessler Topaz's client in charge, not the law firm. So if the client wants to drop out, Wilson Sonsini said, the judge should reopen the process of selecting a lead plaintiff. Judge Wilson agreed. In January, he said new shareholders -- and new plaintiffs' lawyers -- could bid to take over the litigation. The competition was brisk -- hardly a surprise since the case was already poised for class certification. Faruqi & Faruqi filed a motion for a single Snap investor who claimed to have lost nearly $1.7 million. Labaton Sucharow asked for the New Mexico fund, with claimed losses of about $1.1 million, to be appointed. Kessler Topaz moved for the appointment of five newly emerged Snap shareholders who lost a total of about $500,000. Three other candidates with smaller losses also threw in their hats. As you know, judges typically look first at the investor with the biggest losses when they're picking plaintiffs to lead securities class actions. Faruqi's client, therefore, was the presumptive lead. But Judge Wilson had already passed him over back in 2017 when he selected Kessler Topaz's former client instead. Faruqi lawyers argued that the judge should consider their client anew because of tweaks to the proposed class period. Kessler Topaz and the New Mexico fund countered that regardless of the class period, Faruqi's client bought a large percentage of his Snap shares after revelations of the alleged fraud. If he were to be appointed lead, the opposing briefs said, Snap would argue that a class can't be certified because Faruqi's client didn't rely on its alleged misrepresentations when he made the decision to buy Snap shares. The New Mexico fund had the next-biggest losses. And under the PSLRA, institutional investors have an edge over individual shareholders in lead plaintiff contests because Congress was of the view that pension funds are more likely than small shareholders to be independent decisionmakers. But as other lead plaintiff candidates pointed out to Judge Wilson, the New Mexico fund had cashed out of Snap before the end of the class period – and then, like Faruqi's client, bought additional shares after the alleged fraud was revealed. Kessler Topaz and its client also took a bashing in opposition briefs from other candidates. Faruqi and Labaton argued that the Snap shareholder group was an ad hoc contrivance, concocted by Kessler Topaz solely to secure a lead role for the law firm. In the end, Judge Wilson decided the Kessler group was the best of his options. Faruqi's client, he said, wasn't an optimal class representative, despite his big loss, because of Snap's potential arguments based on his purchase of shares after the alleged fraud was exposed. The New Mexico fund had the same problem, the judge said, in addition to potential standing issues from uncertainty about which state officials can authorize the fund to sue. It could well be that the fund would eventually beat Snap defense arguments, Judge Wilson said, but the shareholder class should not bear the cost of litigating them. That left the Kessler group. The judge acknowledged that ad hoc groups aren't ideal, but said there's plenty of precedent holding that they are "not necessarily inadequate." In this case, he said, Kessler's clients had submitted a joint declaration promising to exercise the requisite oversight of their lawyers but also to make sure the case moves quickly to a resolution. Judge Wilson did not say so explicitly, but he seems to have taken into account Kessler Topaz arguments that the class would suffer if a new shareholder firm took over with the case on the cusp of class certification. Reuters' Ms. Frankel mailed Thomas Dubbs and Francis McConville of Labaton, who represent the New Mexico fund; Richard Gonnello of Faruqi, who represents the individual investors with the biggest Snap losses; and Sharan Nirmul of Kessler, who has been leading the litigation against the company. None of them responded. "I said above that I believe we're going to see more of the kind of lead plaintiff drama that played out in the Snap case. According to Cornerstone Research, institutional investors have been retreating from leadership of securities class actions since about 2012. Individual shareholders were appointed to be in charge of about 60 percent of the shareholder fraud cases filed in 2018. Unlike pension funds and other institutions, individuals develop health issues, like the lead plaintiff in Snap, or post dumb things on social media, like the court-appointed lead plaintiff in a San Francisco federal court class action against the cryptocurrency enterprise Tezos," Ms. Frankel said. "That case, as I've written, is following the same path as the Snap litigation, with plaintiffs' lawyers asking U.S. District Judge Richard Seeborg to allow them to substitute different investors for the shareholder he originally appointed. Judge Seeborg held a hearing on the motion, which is opposed by other plaintiffs' firms, in March but hasn't yet ruled. I suspect the judge will talk about the Snap case when he issues his opinion." [GN] SOUTHLAND ROYALTY: Exclusion of Moores Testimony in Ulibarri Denied ------------------------------------------------------------------- In the case, GERALD ULIBARRI and WHITE RIVER ROYALTIES, LLC, Plaintiffs, v. SOUTHLAND ROYALTY COMPANY, LLC, Defendant. Consolidated for purposes of class certification with: GERALD ULIBARRI, Plaintiff, v. ENERGEN RESOURCES CORPORATION, Defendant, Case Nos. 1:16-cv-215-RB-JHR, 1:18-cv-294-RB-SCY (D. N.M.), Judge Robert C. Brack of the U.S. District Court for the District of New Mexico denied Defendant's Daubert Motion to Exclude Testimony of Terry A. Moores. In the dispute over the calculation of natural gas royalty payments, the Plaintiffs seek to bring their claims on behalf of a putative class of similarly situated leaseholders. Southland holds the lessee's interest in numerous lease agreements under which it produces natural gas from "gas only" wells in New Mexico. The Plaintiffs hold the lessors' interests in several such lease agreements. They allege that, since Jan. 1, 2015, Southland has consistently underpaid royalties it owes on the sales proceeds of natural gas and related products produced under these lease agreements by not basing payments on the actual sale proceeds of the natural gas products. Instead, they argue, Southland undervalues the natural gas products and consistently deducts "post-production costs," like treatment and processing, from their royalty payments. The Plaintiffs allege that, pursuant to their lease agreement language, their royalty payments are meant to be calculated solely based on sale proceeds and not adjusted for the cost of post-production processing. The Plaintiffs seek to bring the action on behalf of a putative class including all individuals and entities who have been paid royalties by Southland at any time since Jan. 1, 2015, and hold a lessor's interest in a lease agreement that contains one of four different types of royalty payment provisions. The four types of royalty provisions that delineate the proposed class include: "proceeds royalty provisions," "gross proceeds royalty provisions," "greater of market value or gross proceeds royalty provisions," and "gross proceeds without deduction of post-production costs royalty provisions." The Plaintiffs subsequently retained Mr. Moores to conduct the title examination work which Southland stated was necessary in order to properly identify the persons who have been lessors of record under each of the 325 Lease Agreements. Mr. Moores is a landman who currently works as a managing member of SandStoneLand, LLC -- an independent landman firm specializing in the four corners region and Wyoming. He has decades of similar experience performing title examination and land work contracting services for various clients. As of the date of his initial report, Mr. Moores had identified approximately 320 persons or entities that have held and/or currently hold the lessor's interests under the applicable oil and gas leases. Since then, he has updated the summary with newly identified leaseholders three times and provided Southland with additional title documents "purportedly supporting the chain of title" eight times. Using Mr. Moores' lists of identified leaseholders, the Plaintiffs' counsel has made a comparison of persons identified by Mr. Moores as being lessors after Jan. 1, 2015 under 253 of the 325 Leases to persons identified in royalty accounting data produced by Southland. Similarly, the Plaintiffs' counsel also compared Southland's royalty accounting data to the individuals and entities identified as original lessors in the relevant lease agreements, as well as some of their heirs. Through this process, the Plaintiffs' counsel had identified 497 putative class members on Feb. 1, 2019. Southland argues that Mr. Moores' testimony and report should be excluded for three reasons. First, because the Plaintiffs failed to comply with the Court's expert deadlines with respect to the disclosure of Mr. Moores' expert report and supporting facts and data. Second, Southland argues that Mr. Moores' opinions are unreliable. Finally, Southland argues that Mr. Moores's report is not relevant to the class certification issue because it fails to link the royalty owners paid by Southland to the owners identified from his title examination and thus is irrelevant to a determination as to the members of the proposed class. Judge Brack denied the Defendant's Daubert Motion to Exclude Testimony of Terry A. Moores. He finds that (i) Mr. Moores is qualified as a title examination expert and his testimony is relevant; (ii) Mr. Moores' report is sufficiently based on reliable data, methods, and principles; and (iii) the supplements to Mr. Moores' report are not new opinions. A full-text copy of the Court's April 3, 2019 Memorandum Opinion and Order is available at https://is.gd/dQjlng from Leagle.com. Gerald Ulibarri, on behalf of himself and a class of similarly situated persons, Plaintiff, represented by A. Michael Chapman, Newbold Chapman & Geyer, P.C., George Barton -- gab@georgebartonlaw.com -- Law Offices of George Barton, P.C. & Stacy Burrows -- stacy@georgebartonlaw.com -- Law Offices of George sA. Barton, PC. Energen Resources Corporation, Defendant, represented by Bradford C. Berge -- bberge@hollandhart.com -- Holland & Hart LLP & Christopher A. Chrisman -- cachrisman@hollandhart.com -- Holland & Hart LLP, pro hac vice. Energen Resources Corporation, Counter Claimant, represented by Christopher A. Chrisman, Holland & Hart LLP, pro hac vice, Bradford C. Berge, Holland & Hart LLP & Christopher A. Chrisman, Holland & Hart LLP. Gerald Ulibarri, on behalf of himself and a class of similarly situated persons, Counter Defendant, represented by A. Michael Chapman, Newbold Chapman & Geyer, P.C., George Barton, Law Offices of George Barton, P.C. & Stacy Burrows, Law Offices of George A. Barton, PC. SPORTS RESEARCH: Capaci Sues Over Product's Misleading Claims ------------------------------------------------------------- FRANK CAPACI on behalf of himself and all others similarly situated, Plaintiff, v. SPORTS RESEARCH CORPORATION, a California Corporation, Defendant, Case No. 2:19-cv-03440 (C.D. Cal., April 26, 2019) challenges Defendant's misleading weight loss claims relating to their product, alleging violations of the California Consumer Legal Remedies Act ("CLRA"), Unfair Competition Law ("UCL"), and False Advertising Law ("FAL"). The Defendant Sports Research Corporation markets "Sports Research Garcinia Cambogia" a dietary supplement that Defendant falsely claims is an effective aid in "weight management" and "appetite control", despite the fact that the Product's only purportedly active ingredients, Hydroxycitric Acid ("HCA") and extra virgin organic coconut oil, are scientifically proven to be incapable of providing such weight-loss benefits. Plaintiff read and relied upon Defendant's claims when purchasing the Product and was damaged as a result, says the complaint. Plaintiff Frank Capaci purchased Garcinia Cambogia supplements for personal and household use and not for resale at a GNC store. Defendant develops, manufactures, promotes, markets, distributes, and/or sells the Products across the United States, including to hundreds of consumers in California and New Jersey.[BN] The Plaintiff is represented by: RONALD A. MARRON, ESQ. MICHAEL T. HOUCHIN, ESQ. LAW OFFICES OF RONALD A. MARRON 651 Arroyo Drive San Diego, CA 92103 Phone: (619) 696-9006 Facsimile: (619) 564-6665 Email: ron@consumersadvocates.com mike@consumersadvocates.com STANFORD UNIVERSITY: Student Linked to Bribery Scandal Expelled --------------------------------------------------------------- Erin Woo, writing for The Stanford Daily, reports that Stanford has rescinded the admission of a female student whose application was linked with the bribery scandal rocking college admissions nationwide, the University announced on April 2. The former student included fabricated sailing credentials in her application, which is grounds for expulsion according to University practice. Though she was accepted through the standard process and not as a recruited athlete, her admission was followed by a $500,000 contribution to Stanford's sailing program paid through former head coach John Vandemoer, who was fired after agreeing to plead guilty for accepting donations in exchange for recommending non-sailors as recruited athletes. The student, who has not been publicly identified, is no longer on Stanford's campus, and her credits have been vacated by the University, the April 2 press release states. News of her expulsion comes just four days after Stanford admitted its newest class. Although the University no longer releases admissions statistics, President Marc Tessier-Lavigne and Provost Persis Drell wrote that no members of the Class of 2023 applicant pool -- and no other currently enrolled students -- are associated with the admissions scandal, the largest ever prosecuted by the Department of Justice. The multi-million dollar scheme was masterminded by William Rick Singer, the founder of a college preparatory business known as the Key Worldwide Foundation. Singer, who pleaded guilty to multiple charges, charged parents -- including 11 Bay Area parents and Stanford affiliates -- thousands of dollars to artificially inflate their children's standardized test scores. In some cases, Singer also bribed athletic directors, including Vandemoer, to recommend clients' children as recruited athletes. On March 12, Vandemoer pleaded guilty to accepting $270,000 in bribes linked to two students who did not ultimately attend the University. He has not yet faced charges for the $500,000 associated with the expelled student's acceptance. Amid a national reckoning on meritocracy and the college admissions system -- and a class action lawsuit accusing Stanford and seven other universities implicated in the scandal of fraudulent admissions processes -- the scandal has set in motion a cascade of changes at the University. Varsity recruits proposed by coaches will now undergo a separate background check by a Stanford Athletics executive. Previously, only the recommending coach was responsible for reviewing such credentials. Stanford confirmed the pre-admittance athletic biography of all recruits since 2011 after learning of the bribery scheme. Additionally, the University plans to conduct a "comprehensive external review" of procedures surrounding athletic recruitment and financial contributions to athletic programs. "We know that this episode has jarred the trust of many Americans in the college admissions process, and it has prompted many questions from the Stanford community," Tessier-Lavigne and Drell wrote. "We are determined to take the right steps at Stanford to ensure the integrity of our process and to work toward rebuilding that trust." [GN] SUTHERLAND GLOBAL: Can Compel Arbitration in Thompson TCPA Suit --------------------------------------------------------------- In the case, JAMES THOMPSON, Plaintiff, v. SUTHERLAND GLOBAL SERVICES, INC., Defendant, Case No. 17 C 3607 (N.D. Ill.), Judge Ruben Castello of the U.S. District Court for the Northern District of Illinois, Eastern Division, granted the Defendant's renewed motion to compel arbitration. The Plaintiff, on behalf of himself and a putative class of individuals who allegedly received unsolicited telephone calls, brings the action against the Defendant pursuant to the Telephone Consumer Protection Act ("TCPA" ). The Plaintiff is an individual who resides in the Northern District of Illinois and allegedly received unsolicited phone calls from the Defendant, a New York corporation headquartered in Pittsfield, New York, that AT&T Services, Inc. contracted with to call AT&T customers. The Plaintiff registered for AT&T's U-verse Internet service and accepted the accompanying terms of service in March 2016. The terms of service provide that "AT&T and you agree to arbitrate all disputes and claims between you and AT&T." "AT&T" is defined in the terms of service to include "AT&T Corporation" and all local entities that provide AT&T U-Verse Internet service, which for the Plaintiff -- who resided in Illinois -- was Illinois Bell Telephone Co. Michael Shannon Barker, AT&T's Vice President of Service Delivery, declares that AT&T hired the Defendant to make phone calls to AT&T customers as part of AT&T's proactive churn management ("PCM") program. The services under the program were carried out in accordance with a "Call Center Master Service Agreement" ("MSA") and a separate work order ("PCM Order"). Under the PCM Order, the Defendant was to provide English and Spanish customer service support over the telephone to AT&T customers for the purpose of reducing AT&T customer churn by, among other things, proactively troubleshooting and resolving customer connectivity, home computer, and network issues. Pursuant to the PCM program, the Defendant made three calls to the Plaintiff on Dec. 24, 2015. The Defendant placed these calls because the Plaintiff had registered for AT&T's U-Verse service but had not yet installed the necessary equipment. Kristina Carter, AT&T's Lead Product Marketing Manager, declares that AT&T retained control over both the manner and means of the Defendant's calls on AT&T's behalf, and that AT&T required Defendant to hold itself out as AT&T when making calls to AT&T customers. On May 12, 2017, the Plaintiff filed a complaint against AT&T alleging violations of the TCPA. He amended his complaint twice, and the second amended complaint, filed on May 10, 2018, is the operative complaint. It advances one count for violation of the TCPA against AT&T, Illinois Bell, and the Defendant for the allegedly unsolicited calls that he received. The Plaintiff brings the action on behalf of himself and a putative class consisting of persons who received phone calls from the Defendant on or after May 12, 2013, and persons who received a pre-recorded message from the Defendant. On June 19, 2018, the Plaintiff voluntarily dismissed AT&T and Illinois Bell from the action without prejudice. On June 15, 2018, the Defendant moved to compel arbitration. The Court denied the Defendant's motion without prejudice, finding that the U-Verse terms of service are enforceable and rejecting the Plaintiff's argument of unconscionability. It concluded, however, that the Defendant had failed to provide sufficient evidence that it was AT&T's agent so as to warrant the arbitration agreement's application in the case. As a result, the Court permitted the Plaintiff to take discovery on the relationship between the Defendant and AT&T to test whether Defendant was AT&T's agent. On Jan. 11, 2019, after discovery concluded on the agency issue, the Defendant filed a renewed motion to compel arbitration. It argues that it acted as AT&T's agent when it made calls to the Plaintiff, thereby making the arbitration agreement enforceable as to any dispute between the Plaintiff and the Defendant. In support of its motion, the Defendant presents declarations from AT&T employees and the contract between the Defendant and AT&T. The Defendant argues that the evidence shows it was AT&T's agent because AT&T retained significant control over how the Defendant was to carry out its obligations. The Defendant also contends that it had actual authority to affect AT&T's legal relationships. It argues that, as a result, any disputes between it and the Plaintiff are covered by the arbitration agreement in the U-Verse terms of service. The Plaintiff, on the other hand, argues that no enforceable arbitration agreement exists between the parties. In his view, the calls at issue arose before he accepted the online terms of service containing the arbitration provision. He also argues that the Defendant has no right to enforce his arbitration agreement with AT&T because the Defendant is neither a party to that contract nor an intended beneficiary under the contract. He contends that the arbitration agreement is between the Plaintiff and Illinois Bell and Illinois Bell's agents, not between AT&T and its agents. Thus, according to him, it does not matter if the Defendant was AT&T's agent because the arbitration agreement only covers Illinois Bell's agents. Finally, the Plaintiff argues that the Defendant was not an agent of AT&T but instead hired by AT&T as an independent contractor. Judge Castello finds that the arbitration agreement in the U-Verse terms of service identifies the class to which the Defendant belongs -- Illinois Bell's "affiliates." There is also a clear intent in the arbitration agreement to benefit Illinois Bell's affiliates and provide them the legal right to dispute claims with the Plaintiff in arbitration. Thus, the Defendant can enforce the arbitration agreement as a third-party beneficiary because it is an affiliate of Illinois Bell. Accordingly, whether under a theory of agency, third-party beneficiary, or simply the Defendant being a party to the arbitration agreement, the Defendant has the right to enforce the arbitration agreement against the Plaintiff. The Judge, therefore, compels arbitration and stays the case. Because AT&T exerted significant control over the Defendant, the Judge finds that AT&T's control over Defendant can be grouped into two categories: (1) control over the Defendant's customer calls, and (2) control over employment decisions and supervision of the Defendant's work. He rejects the Plaintiff's arguments challenging the agency relationship between the Defendant and AT&T. Because the case involves marketing calls to the Plaintiff, the Defendant acted as AT&T's agent and not an independent contractor. In addition, Illinois agency law requires courts to rely on the facts of each case to determine whether an agency relationship exists regardless of contractual labels. A written contract is not conclusive of the relationship between the alleged agent and the alleged principal. Thus, even if the agreement between AT&T and the Defendant had exclusively labeled Defendant as an "independent contractor," Illinois agency law requires the Court to look beyond that provision and find that the Defendant is AT&T's agent because the evidence shows AT&T had control over the Defendant and that the Defendant could affect AT&T's legal relationships. Accordingly, the Judge grants the motion to compel arbitration. For the foregoing reasons, Judge Castello granted the Defendant's renewed motion to compel arbitration. He stayed all further proceedings in the matter until the parties have completed arbitration of the dispute. A full-text copy of the Court's April 3, 2019 Memorandum Opinion and Order is available at https://is.gd/h7DDEZ from Leagle.com. James Thompson, individually and on behalf of others similarly situated, Plaintiff, represented by Alexander Holmes Burke -- aburke@burkelawllc.com -- Burke Law Offices, LLC & Daniel J. Marovitch -- dmarovitch@burkelawllc.com -- Burke Law Offices, LLC. Sutherland Global Services, Inc., Defendant, represented by Mark E. Shure -- mshure@em3law.com -- Edwards Maxson Mago & Macaulay, LLP & Susan A. Stoddard -- stoddard@em3law.com -- Edwards Maxson Mago & Macaulay, LLP. SWEPI LP: Walney Appeals Class Decertification Order to 3rd Cir. ---------------------------------------------------------------- Plaintiffs Rodney A. Bedow, Sr. and Thomas J. Walney filed an appeal from the District Court's order decertifying the class in their lawsuit titled Thomas Walney, et al. v. SWEPI LP, et al., Case No. 1-13-cv-00102, in the U.S. District Court for the Western District of Pennsylvania. As previously reported in the Class Action Reporter, the Plaintiffs contend that class members were promised the bonus monies as an incentive for signing their Leases, but the bonuses were never paid. In their operative pleading, they asserted claims for breach of contract, among other things. The appellate case is captioned as Thomas Walney, et al. v. SWEPI LP, et al., Case No. 19-8013, in the United States Court of Appeals for the Third Circuit.[BN] Plaintiffs-Petitioners THOMAS J. WALNEY and RODNEY A. BEDOW, SR., individually and on behalf of all others similarly situated, are represented by: Joseph E. Altomare, Esq. 700 Rockwood Drive Titusville, PA 16354 Telephone: (814) 657-0350 E-mail: jaltomar@msn.com Defendants-Respondents SWEPI LP and SHELL ENERGY HOLDING GP LLC are represented by: Daniel M. McClure, Esq. NORTON ROSE FULBRIGHT US LLP 1301 McKinney Street Fulbright Tower, Suite 5100 Houston, TX 77010 Telephone: (713) 651-5159 E-mail: dan.mcclure@nortonrosefulbright.com - and - Jeremy A. Mercer, Esq. PORTER WRIGHT MORRIS & ARTHUR LLP 6 PPG Place, Third Floor Pittsburgh, PA 15222 Telephone: (412) 235-1491 E-mail: jmercer@porterwright.com TIDAL BASIN HOLDING: Nelson Seeks OT Premium Pay ------------------------------------------------ A class action lawsuit has been filed against Tidal Basin Holdings, Inc. and Vanguard Emergency Management for failing to compensate Plaintiff Adam Nelson and other house inspectors at the rate of time and one half their regular rate of pay for all hours worked over 40 in a workweek as required under the Fair Labor Standards Act (FLSA). The case is captioned ADAM NELSON, on Behalf of Himself and on Behalf of All Others Similarly Situated, Plaintiff, v. TIDAL BASIN HOLDING, INC. and VANGUARD EMERGENCY MANAGEMENT, Defendants, Civil Action No. 5:19cv00030 (W.D. Va., April 17, 2019). Plaintiff Adam Nelson accuses the Defendants of violating the FLSA by misclassifying him and other housing inspectors as independent contractors instead of as employees. Tidal Basin Holdings, Inc. is a Virginia for-profit corporation. The company owns, controls, and operates Vanguard Emergency Management. Headquartered in Virginia, Vanguard provides housing inspection services for those individuals whose homes have been damaged by a natural disaster. [BN] The Plaintiff is represented by: Don J. Foty, Esq. KENNEDY HODGES, L.L.P. 4409 Montrose Blvd., Ste. 200 Houston, TX 77006 Telephone: (713) 523-0001 Facsimile: (713) 523-1116 E-mail: dfoty@kennedyhodges.com - and - Gabriel A. Assaad, Esq. KENNEDY HODGES, L.L.P. 4409 Montrose Blvd., Ste. 200 Houston, TX 77006 Telephone: (713) 523-0001 Facsimile: (713) 523-1116 E-mail: gassaad@kennedyhodges.com - and - Ricardo J. Prieto, Esq. 11 Greenway Plaza, Suite 1515 Houston, TX 77046 Telephone: (713) 621-2277 Facsimile: (713) 621-0993 E-mail: rprieto@eeoc.net TRAILER BRIDGE: Diaz Files Suit to Recover Unpaid Overtime Wages ---------------------------------------------------------------- LISSETTE M. DIAZ, and other similarly-situated individuals, Plaintiff v. TRAILER BRIDGE, INC. Defendant, Case No. 3:19-cv-00470 (M.D. Fla., April 25, 2019) is an action to recover money damages for unpaid overtime wages pursuant to the Fair Labor Standards Act ("FLSA"). Plaintiff worked in excess of 40 hours every week period and she was paid a salary, but she was not paid for overtime hours, asserts the complaint. Plaintiff's duties were non-exempted in nature and did not qualify to meet the requirements of any FLSA overtime exemption and Plaintiff was entitled to be paid overtime hours at the rate of time and one half her regular rate, the complaint says. Plaintiff was employed by Defendant from April 03, 2000 to April 01, 2019. TRAILER BRIDGE is full-service Ocean Carrier, specializing in imports, exports, freight consolidation and logistics solutions.[BN] The Plaintiff is represented by: Zandro E. Palma, Esq. ZANDRO E. PALMA, P.A. 9100 S. Dadeland Blvd., Suite 1500 Miami, FL 33156 Phone: (305) 446-1500 Facsimile: (305) 446-1502 Email: zep@thepalmalawgroup.com TURTLE CREEK: Ochoa Files FDCPA Suit in N.D. Texas -------------------------------------------------- A class action lawsuit has been filed against Turtle Creek Assets, Ltd. The case is styled as Daniel Ochoa on behalf of himself and all others similarly situated, Plaintiff v. Turtle Creek Assets, Ltd., Defendant, Case No. 4:19-cv-00348-Y (N.D. Tex., April 27, 2019). The Plaintiff filed the case under the Fair Debt Collection Practices Act. Turtle Creek Assets Ltd is a legal services company based out of 1010 Turtle Creek Blvd St, Dallas, Texas, United States.[BN] The Plaintiff is represented by: Michael S. Agruss, Esq. Agruss Law Firm LLC 4809 N. Ravenswood Ave, Suite 419 Chicago, IL 60640 Phone: (312) 224-4695 Fax: (312) 253-4451 Email: michael@agrusslawfirm.com UBS FINANCIAL: Hsu Appeals N.D. California Ruling to 9th Circuit ---------------------------------------------------------------- Plaintiff Darru K. Hsu filed an appeal from a Court ruling in the lawsuit styled Darru Hsu v. UBS Financial Services, Inc., Case No. 3:11-cv-02076-WHA, in the U.S. District Court for the Northern District of California, San Francisco. The lawsuit alleges violations of securities laws. As previously reported in the Class Action Reporter, the Plaintiff accuses UBS Financial Services of using illegal "hedge clauses" in its investment-adviser agreements to limit its liability and waive its fiduciary duties. The appellate case is captioned as Darru Hsu v. UBS Financial Services, Inc., Case No. 19-15756, in the United States Court of Appeals for the Ninth Circuit. Plaintiff-Appellant DARRU K. HSU, Individually and as Trustee of the Darru K. Hsu and Gina T. Hsu Living Trust U/AO5/O5/03; individually and on behalf of all others similarly situated, AKA Ken, of San Jose, California, appears pro se. The briefing schedule in the Appellate Case is set as follows: -- Transcript must be ordered by May 15, 2019; -- Transcript is due on June 14, 2019; -- Appellant Darru K. Hsu's opening brief is due on July 24, 2019; -- Appellee UBS Financial Services, Inc.'s answering brief is due on August 26, 2019; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Defendant-Appellee UBS FINANCIAL SERVICES, INC., is represented by: David C. Powell, Esq. MCGUIREWOODS LLP Two Embarcadero Center, Suite 1300 San Francisco, CA 94111 Telephone: (415) 844-1970 E-mail: dpowell@mcguirewoods.com - and - Ashley L. Shively, Esq. REED SMITH LLP 101 Second Street, Suite 1800 San Francisco, CA 94105 Telephone: (415) 543-8700 E-mail: ashively@reedsmith.com UCLA HEALTH: Terms of $7.5MM Cyber Attack Class Action Settlement ----------------------------------------------------------------- Class-action litigation arising from a cyber attack announced in July 2015 by UCLA Health has been settled by mutual agreement of the plaintiffs and The Regents of the University of California. On February 21, 2019, the judge overseeing the case granted preliminary approval of the proposed settlement, which provides long-term protection for the current and former patients whose personal information was in the attacked computer network. Under the proposed settlement, UCLA Health admits no wrongdoing. It maintains that it was not liable for the cyber attack and that, following an extensive investigation, there continues to be no evidence that the cyber attackers actually accessed or acquired personal or medical information. The parties are entering into this agreement to avoid the expense of further litigation and to provide benefits to the individuals whose information was maintained in UCLA Health's computer network. The proposed settlement terms include: Two years of free credit monitoring, identity protection services, an insurance package and related benefits available to all settlement class members even if they previously obtained the one-year credit monitoring package offered by UCLA Health in 2015. A $2 million fund that will be used to reimburse settlement class members who incurred costs seeking to protect against, or remedy, identity theft. $5.5 million beyond currently budgeted spending -- plus any money remaining in the claims reimbursement fund -- for the purpose of expediting and implementing cybersecurity enhancements to the UCLA Health computer network. An independent settlement administrator will manage the settlement and claims process overseen by the judge. The administrator has set up a website -- www.UCLAHealthCyberSettlement.com -- as well as a customer service line at 1-888-262-4479, to provide information regarding the settlement, including how to register for credit monitoring and identity protection services and how to submit claims for reimbursement. Protecting patient privacy is essential to UCLA's mission. Maintaining data security requires constant vigilance, and UCLA Health applies extensive resources and works with leading experts to enhance preparedness and combat the ongoing threat of cyber attacks. SOURCE: Superior Court, County of Los Angeles [GN] UNITED HEALTHCARE: 10th Circuit Appeal Filed in Fedor FLSA Suit --------------------------------------------------------------- Plaintiff Dana Fedor filed an appeal from a Court ruling in the lawsuit entitled Fedor v. United Healthcare, Inc., et al., Case No. 1:17-CV-00013-MV-KBM, in the U.S. District Court for the District of New Mexico - Albuquerque. As previously reported in the Class Action Reporter, the lawsuit seeks overtime pay, pre- and post-judgment interest for attorneys' fees, costs and disbursements and additional relief under the Fair Labor Standards Act and the New Mexico Wage Law. The appellate case is captioned as Fedor v. United Healthcare, Inc., et al., Case No. 19-2066, in the United States Court of Appeals for the Tenth Circuit.[BN] Plaintiff-Appellant DANA FEDOR, and all others similarly situated, is represented by: J. Derek Braziel, Esq. LEE & BRAZIEL, LLP 1801 N. Lamar Street, Suite 325 Dallas, TX 75202 Telephone: (214) 749-1400 E-mail: jdbraziel@l-b-law.com - and - Jack Siegel, Esq. SIEGEL LAW GROUP 2820 McKinnon, Suite 5009 Dallas, TX 75201 Telephone: (214) 790-4454 E-mail: jack@siegellawgroup.biz Defendants-Appellees UNITED HEALTHCARE, INC. and UNITED HEALTHCARE SERVICES, INC. are represented by: J. Mark Ogden, Esq. Cory Glen Walker, Esq. LITTLER MENDELSON P.C. 2425 East Camelback Road, Suite 900 Phoenix, AZ 85016-4242 Telephone: (602) 474-3600 E-mail: mogden@littler.com cgwalker@littler.com UNITED STATES: Ct. Addresses Discovery Dispute in Veterans APA Suit ------------------------------------------------------------------- Judge Charles S. Haight, Jr. of the U.S. District Court for the District of Connecticut has issued an order addressing a dispute about pretrial discovery in the case, TYSON MANKER, on behalf of himself and all others similarly situated, and NATIONAL VETERANS COUNCIL FOR LEGAL REDRESS, on behalf of itself, its members, and all others similarly situated, Plaintiffs, v. RICHARD V. SPENCER, Secretary of the Navy, Defendant, Civil Action No. 3:18-cv-372 (CSH) (D. Conn.). The Plaintiffs are veterans of the United States Navy and Marine Corps. The Defendant is Secretary of the Navy. The Plaintiffs, who were discharged from the service with less than honorable discharges, allege that they were denied discharge upgrades by the Naval Discharge Review Board ("NDRB") in a manner violative of the APA and the Due Process Clause of the Fifth Amendment. Specifically, the Plaintiffs contend that they had diagnoses of post-traumatic stress disorder ("PTSD"), traumatic brain injury ("TBI"), or PTSD-related conditions at the time of discharge, attributable to their military service. That circumstance, the Plaintiffs assert in the action, entitle them to discharge upgrades which the NDRB has wrongfully withheld. They condemn the NDRB's denial of discharge upgrades as arbitrary and capricious, the hallmark of liability for violating the APA. When the complaint was first filed, there were two named Plaintiffs, asserting claims on behalf of themselves and also as representatives of a purported class. In an opinion reported at Manker v. Spencer, the Court certified a class consisting of all Navy, Navy Reserve, Marine Corps and Marine Corps Reserve veterans of the Iraq and Afghanistan Era who had comparable discharge histories. The counsel for the parties conducted a planning conference and submitted a Report pursuant to Fed. R. Civ. P. 26(f), from which a stark and dramatic dispute emerges with respect to the permissible scope of pretrial discovery. The Defendant Secretary takes the position that since the Plaintiffs claim an APA violation, there is no need for a Local Rule 26(f) report, initial disclosures, or discovery in the case. The Defendant concludes that because judicial review under the APA is confined to the administrative records, it follows that discovery would be limited to the administrative record of the two lead Plaintiffs. The Plaintiffs' position is that since they have alleged systemic and systematic failures to properly implement existing law and guidance, which are not reflected in any agency decision record, it follows that discovery will be needed on all matters related to the causes of action and the defenses raised in the pleadings, including an encyclopedic list of the Defendant's policies, procedures, and practices related to discharge upgrade applications; training of NDRB personnel and board members; incidence of PTSD, TBI and other related mental health conditions within the veterans; and the Department of Defense, Navy and Marine Corps personnel involved in NDRB policy, practice, or review. Stated briefly, discovery is visualized by the Plaintiffs into practically everything and by the Defendant into almost nothing. The Court conducted an early hearing to explore these extremes. The counsel for the parties reiterated their conflicting contentions about pretrial procedures. That question had not been previously briefed. The Court directed briefing. The counsel exchanged main briefs. The briefs are well-structured, comprehensive, and replete with citations to case law. The Order determines what will happen next in the sensitive and important case. Judge Haight concludes that the suggested time of 90 additional days for the limited production is excessive, given the exigencies of the case and the limited amount of production contemplated. It is not plausible to think that the Navy requires 90 days to locate and produce the NDRB administrative records for these two veterans. During the hearing, the Court benefitted from the telephonic presence and assistance of Lieutenant Commander Jonathan Dowling, "Agency Counsel," who had confirmed in a previous conversation with Mr. Nelson that the Secretary could produce the full administrative records "within 90 days." It was Mr. Nelson who proposed that amount of time amount to Lt. Cdr. Dowling, id., who presumably would also have answered affirmatively if Mr. Nelson had specified "three years," and whose given answer stopped short of claiming that the Navy would require the full 90 days, an assertion the Court would have questioned if made. Upon consideration, the Judge will enter an Order that will require production of the documents specified on or before May 20, 2019, which is 45 days from the date of the Order. The Judge thinks it right to make clear that the full scope of permissible discovery in the case remains for decision by the Court. That is and remains the underlying question. Nothing in his Memorandum or accompanying Order is intended to decide or intimate the Court's view with respect to the underlying question. The purpose of the Order is to expedite the production of the relevant administrative records of the two lead Plaintiffs in the class action. That production will permit the Court to answer the underlying questions about discovery, not answer them. For the foregoing reasons, Judge Haight directed the Defendant to produce to the counsel for the Plaintiffs by May 20, 2019, the full administrative records of the two lead Plaintiffs in this action relating to the application of those Plaintiffs for discharge upgrades. In addition to the records referred to, the Defendant is directed to produce to the counsel for the Plaintiffs, by May 20, 2019, the documents referred to in the Defendant's brief. If any party wishes any document referred to in the Order to be filed under seal or otherwise held in confidence, the parties are directed to agree upon an appropriate order and submit it to the Court, or failing agreement, apply to the Court for resolution of the issue. A full-text copy of the Court's April 5, 2019 Memorandum and Order is available at https://is.gd/CjZ0uR from Leagle.com. Tyson Manker, on behalf of himself and all others similarly situated & National Veterans Council for Legal Redress, on behalf of itself, its members, and all others similarly situated, Plaintiffs, represented by Jessica A. Martinez , Jenner & Block LLP, Michael J. Wishnie -- michael.wishnie@ylsclinics.org -- Jerome N. Frank Legal Services, Jeremy M. Creelan -- jcreelan@jenner.com -- Jenner & Block, LLP, Jeremy H. Ershow -- jershow@jenner.com -- Jenner & Block LLP, Nicole Taykhman -- ntaykhman@jenner.com -- Jenner & Block LLP & Susan J. Kohlmann -- skohlmann@jenner.com -- Jenner & Block LLP. Richard V Spencer, Secretary of the Navy, Defendant, represented by David Christopher Nelson, U.S. Attorney's Office. UNITED STATES: Identification of Separated Families to Take 2 Yrs ----------------------------------------------------------------- Christopher Carbone, writing for Fox News, reports that it could take the United States government up to two years to identify thousands of additional children separated from their parents by the authorities at the border with Mexico, according to a new court filing. The White House outlined on April 5 how it plans to identify which family members might have been separated by examining thousands of records using data analysis, statistical science and manual review, reports Reuters. A judge in San Diego expanded the number of migrant families that the U.S. may be required to reunite as part of a class-action lawsuit filed by the American Civil Liberties Union (ACLU). Earlier this year, the Office of Inspector General at the U.S. Department of Health and Human Services reportedly said the agency had identified far more children in addition to the 2,737 initially included in the suit. "Defendants estimate that identifying all possible children ... would take at least 12 months, and possibly up to 24 months," the government wrote in the April 5 filing, according to Reuters. It added that the time frame would be affected by the efficacy of its predictive statistical model, the manpower it can dedicate to the manual review, and any follow-up meetings required. In a statement on April 6, the ACLU's lead attorney for the case, Lee Gelernt, told Reuters that the group strongly opposed the government's proposed plan and accused it of not treating the separations with the necessary urgency. President Trump seemed to back off on his threat to completely shut down the southern border, saying he was pleased with steps that Mexico had taken. "Let's see if they keep it done," he said of Mexico. "Now, if they don't, or if we don't make a deal with Congress, the border's going to be closed, 100 percent." He also said that he might only close "large sections of the border" and "not all of it." He added that his posturing was "the only way we're getting a response." [GN] UNITED STATES: Prelim Injunction in Immigrant Rights Suit Issued ---------------------------------------------------------------- In the case, YOLANY PADILLA, et al., Plaintiffs, v. US IMMIGRATION AND CUSTOMS ENFORCEMENT, et al., Defendants, Case No. C18-928 MJP (W.D. Wash.), Judge Marsha J. Pechman of the U.S. District Court for the Western District of Washington, Seattle, granted the Plaintiffs' Motion for Preliminary Injunction. Under the Immigration and Nationality Act ("INA"), detained asylum seekers who are determined by Defendant ICE to have a credible fear of persecution are entitled to request release from custody during the pendency of the asylum process. The initial decision of whether the detainees may be released is made by Defendant Department of Homeland Security ("DHS"), and the asylum seekers may request review of the DHS determination before an immigration judge ("IJ") by means of a bond hearing. The agencies' own guidelines and regulations reflect a recognition of the significance of the deprivation of liberty and the need for expeditious processing of these requests. The DHS regulations allow for bond hearings even prior to the agency filing immigration charges. The critical nature of the interest at stake is reflected in an underlying theme calling for hearings of this nature to be held as expeditiously as possible. Despite this mandate, the Plaintiffs have submitted a plethora of declarations reflecting a practice by Defendant Executive Office for Immigration Review ("EOIR") of delaying bond hearings for members of this class for weeks, even months, following a hearing request. The members of the Bond Hearing class face other obstacles to securing their freedom. At the bond hearing, the IJ bases his or her decision on an evaluation of whether the asylum seeker poses a danger to the community and is likely to appear at future proceedings. Unique among civil detention hearings, however, EOIR places the burden of establishing these factors on the detainees instead of the government. An asylum seeker denied bond can appeal the IJ's decision to the Board of Immigration Appeals ("BIA") or seek another bond hearing in front of the IJ based on a material change in circumstances. But the potential appellant must make the decision of whether to appeal without the aid of a record of the initial bond proceeding or a written decision detailing the reasons for the ruling. There is no requirement that immigration courts record their proceedings or provide a transcript thereof, and the IJs do not release a written decision unless an administrative appeal of the bond decision has already been filed. In addition to the deprivation of liberty, detainees face a number of other hardships attendant upon their incarceration: separation from their families, substandard conditions, subpar medical and/or mental health care, and decreased access to legal assistance and the other resources required to pursue their goal of asylum (leading to a decreased likelihood of success). The stakes are high, and the obstacles to success can loom even higher. Pending before the Court are (i) the Plaintiffs' Motion for Preliminary Injunction; (ii) the Defendants' Opposition to Plaintiffs' Motion for Preliminary Injunction; and (iii) the Plaintiffs' Reply in Support of Motion for Preliminary Injunction. Judge Pechman concludes that the Plaintiffs of the Bond Hearing Class have succeeded in establishing all the requisite elements for a granting of their request for injunctive relief: a likelihood of success on the merits, irreparable harm if their relief is not granted, a balance of equities in their favor, and that the public interest will be benefited by the relief they seek. Accordingly, she granted the requested relief and ordered that Defendant EOIR institute the following procedural safeguards within 30 days of theOrder: 1. Conduct bond hearings within seven days of a bond hearing request by a class member, and release any class member whose detention time exceeds that limit; 2. Place the burden of proof on Defendant Department of Homeland Security in those bond hearings to demonstrate why the class member should not be released on bond, parole, or other conditions; 3. Record the bond hearing and produce the recording or verbatim transcript of the hearing upon appeal; and 4. Produce a written decision with particularized determinations of individualized findings at the conclusion of the bond hearing. The clerk is ordered to provide copies of the Order to all the counsel. A full-text copy of the Court's April 5, 2019 Order is available at https://is.gd/fPiF7u from Leagle.com. Yolany Padilla, Ibis Guzman, Blanca Orantes & Baltazar Vasquez, Plaintiffs, represented by Kristin Macleod-Ball, AMERICAN IMMIGRATION COUNCIL, pro hac vice, Leila Kang -- leila@nwirp.org -- NORTHWEST IMMIGRANT RIGHTS PROJECT, Matt Adams -- matt@nwirp.org -- NORTHWEST IMMIGRANT RIGHTS PROJECT, Trina Realmuto, AMERICAN IMMIGRATION COUNCIL, pro hac vice & Aaron Korthuis, NORTHWEST IMMIGRANT RIGHTS PROJECT. US Immigration and Customs Enforcement, also known as, US Department of Homeland Security, also known as, US Customs and Border Protection, also known as, United StatesCitizenship and Immigration Services, also known as, Thomas Homan, Acting Director of ICE, Kirstjen M Nielsen, Secretary of DHS, Kevin K. McAleenan, Acting Commissioner of CBP, L Francis Cissna, Director of USCIS, Marc J Moore, Seattle Field Office Director, ICE, Executive Office for Immigration Review, Lowell Clark, Warden of the Norwest Detention Center in Tacoma, Charles Ingram, Warden of the Federal Detention Center in SeaTac, Washington, David Shinn, Warden of the Federal Correctional Institute in Victorville, CA & William P Barr, United States Attorney General, Defendants, represented by Joseph A. Darrow, US DEPARTMENT OF JUSTICE, Lauren C. Bingham, US DEPARTMENT OF JUSTICE & Sarah S. Wilson, US DEPARTMENT OF JUSTICE. James Janecka, Warden of the Adelanto Detention Facility, Defendant, represented by Sarah S. Wilson, US DEPARTMENT OF JUSTICE. UNIVERSAL FIDELITY: Watts Files FDCPA Suit in E.D. New York ----------------------------------------------------------- A class action lawsuit has been filed against Universal Fidelity LP. The case is styled as Richard Watts on behalf of himself and all others similarly situated, Plaintiff v. Universal Fidelity LP, Defendant, Case No. 2:19-cv-02494 (E.D. N.Y., April 28, 2019). The Plaintiff filed the case under the Fair Debt Collection Practices Act. Universal Fidelity LP, also known as UFLP, provides billing, collection, and call center services for companies; and federal, state, and local governments.[BN] The Plaintiff is represented by: Mitchell L. Pashkin, Esq. 775 Park Avenue, Ste. 255 Huntington, NY 11743 Phone: (631) 335-1107 Email: mpash@verizon.net VIRGINIA TAN: Judge Certifies $30MM Ponzi Scheme Class Action ------------------------------------------------------------- Keith Fraser, writing for The Province, reports that a judge has certified a class action lawsuit against a West Vancouver woman at the centre of an alleged $30 million Ponzi scheme. The B.C. Supreme Court has certified a class-action lawsuit against a West Vancouver woman allegedly involved in a $30-million Ponzi scheme. In April 2017, in a settlement agreement with the B.C. Securities Commission, Virginia Tan admitted that she had fraudulently raised at least $30 million from investors in a scheme that ran from 2011-2016. She agreed to pay $3 million to settle the matter and was ordered to cease trading in any securities or exchange contracts. A number of lawsuits were filed after the settlement with Jastram Properties Ltd., (JPL), one of the investors, filing a class-action suit against Tan, her husband Patrick, her son Marcus and their related companies. The class-action suit alleges that Virginia and Patrick Tan operated an investment scheme that involved soliciting and receiving investments in a non-existent enterprise in exchange for promissory notes that they failed to honour. It's alleged that the funds received by them were fraudulently diverted to Marcus Tan and used to purchase assets and properties in his name or for his benefit. The properties include six properties at a condo development in Surrey and 24 properties in Fort St. John. A trustee in the bankruptcy proceedings for Virginia and Patrick Tan informed JPL that 240 investors with the scheme had been identified, with 165 of those investors receiving less money back from the couple than the principal amount they invested. Court heard that between May 2012 and March 2015, JPL claimed it had invested $6.6 million with Virginia Tan through a series of instalments. When the scheme was exposed in 2016, JPL claims it only got back about $1.8 million on its investments, leaving $4.8 million outstanding. "Based on a generous review of the notice of civil claim, I am satisfied that if the facts stated by JPL are true, the pleadings disclose causes of action in fraud, fraudulent conversion and fraudulent conspiracy," B.C. Supreme Court Justice Joyce DeWitt-Oosten said in a ruling released April 3. The judge concluded that JPL had shown that as a representative plaintiff it had the capacity to fairly and adequately represent the proposed class of 165 investors and that "judicial economy" would be enhanced by a class-action proceeding. A lawyer for the couple told the judge that he intended to withdraw as their counsel before the hearing and had no instructions on the certification application. The judge said in her view that the couple had been given sufficient notice of the application and she considered it appropriate to proceed with the matter. [GN] VITAL PHARMA: Imran & Madison Suits Over False Ad Consolidated -------------------------------------------------------------- Judge Jon S. Tigar of the U.S. District Court for the Northern District of California consolidated the cases, ISMAIL IMRAN, et al., Plaintiffs, v. VITAL PHARMACEUTICALS, INC., Defendant, KUUMBA MADISON, Plaintiff, v. VITAL PHARMACEUTICALS, INC., Defendant, Case Nos. 18-cv-05758-JST, 18-cv-06300-JST (N.D. Cal.). In their operative first amended complaint, the Imran Plaintiffs, Imran and Zach Hess, allege that VPX misrepresented the contents and effects of its line of BANG energy drinks. Based on these representations, the Plaintiffs assert putative class claims for (1) violations of California's Consumer Legal Remedies Act ("CLRA"); (2) violations of California's Unfair Competition Law ("UCL"); violations of California's False Advertising Law ("FAL"); (4) deceptive acts or practices under New York law; (5) false advertising under New York law; (6) breach of express warranty; (7) unjust enrichment; and (8) fraud. Plaintiff Madison likewise alleges that VPX's marketing of the BANG drinks is deceptive and false. Like the Imran Plaintiffs, Madison also brings putative class claims for (1) violations of the UCL; (2) violations of the FAL; (3) violations of the CLRA; and (4) breach of express warranty. In addition, Madison asserts claims for breach of the implied warranty of merchantability and for a declaratory judgment. The parties have identified Imran and Madison as two out of five false advertising class actions brought regarding BANG energy drinks. The Imran action was filed first, on Sept. 19, 2018. On Oct. 12, 2018, Plaintiff Terrell Barker filed a similar putative class action in the Northern District of Illinois -- Barker v. Vita Pharmaceuticals, Inc. Three days later, on Oct. 15, 2018, attorneys from those same three firms representing Barker filed the Madison action in the district. Two more actions were subsequently filed in the Southern District of Florida -- St. Fort-Nwabuku v. Vital Pharmaceuticals, Inc., was filed on Nov. 19, 2018, and Nguyen v. Vital Pharmaceuticals, Inc., was filed Jan. 30, 2019. On Nov. 26, 2018, the Court granted Madison's motion to relate the two cases. VPX then filed motions to transfer Imran, Barker, and Madison to the Southern District of Florida. Barker voluntarily dismissed his claims without filing an opposition to the transfer motion. As for Imran and Madison, the Court continued the hearings on the respective motions to the same date. Pursuant to the schedule set by the Court, the Imran and Madison Plaintiffs then filed a motion to consolidate the two cases and to appoint the interim lead class counsel. Based on the Plaintiffs' uncontested plausible allegations, the Court has subject matter jurisdiction over these actions under the Class Action Fairness Act of 2005 ("CAFA") because the putative class includes at least 100 members, the parties and class members are minimally diverse, and the amount in controversy exceeds $5 million. Judge Tigar explains that transfer is permissible only if the action could have been brought in the Southern District of Florida. A district court is one in which an action could have been brought originally if (1) it has subject matter jurisdiction; (2) the defendants would have been subject to personal jurisdiction; and (3) venue would have been proper. He finds that the factors favoring transfer do not outweigh Madison's choice of forum and the benefits of retaining his California law claims. Nor has VPX provided a convincing reason to deviate from the preference for the first-filed forum. Accordingly, he denies VPX's motion to transfer venue in Madison. As to VPX's motion to transfer venue in Imran, the Judge finds that VPX offers additional reasons why the Imran Plaintiffs' choice of forum deserves less weight. First, VPX notes that Imran resides in the Eastern District of California, while Hess resides in the Southern District of New York. Second, VPX suggests that the Plaintiffs' counsel filed in this district to avoid an unfavorable ruling in Karhu v. Vital Pharmaceuticals, Inc., where a Southern District of Florida court denied class certification in a different action against VPX involving "a dietary supplement called VPX Meltdown Fat Incinerator. Finally, while VPX emphasizes that Imran includes a New York plaintiff and New York causes of action, Imran, these facts do not significantly weaken the California interests involved. Nor do they make a stronger case for Florida's interest in the controversy. Accordingly, the Judge also denies VPX's motion to transfer venue in Imran. Given that the Imran and Madison Plaintiffs have moved to consolidate, Imran and VPX argues that the cases should be transferred to Florida for consolidation, there is no dispute that consolidation is appropriate. In light of the overlapping nature of the factual allegations and the legal claims, the Judge agrees as well. VPX's only argument in opposition to thie motion is that consolidation is premature until the Court resolves the motions to transfer. Because that point is now moot, the Judge grants the motion to consolidate. The Plaintiffs propose that the Court appoint three firms as co-interim class counsel. Two firms, Nathan & Associates and Bursor & Fisher, P.A., currently represent Imran and Hess. The third, Barbat, Mansour & Suciu PLLC, is one of four firms representing Madison. The Judge concludes that approval of this proposal is premature. First, the Plaintiffs do not indicate that these appointments are required to resolve any rivalry between the involved firms, nor any uncertainty as to their respective roles. Second, the Plaintiffs suggest that appointment is necessary because there is 'uncertainty' about who is acting on behalf of the putative class because this action has spawned two copycat cases in Florida. Finally, if the Court were to appoint interim lead counsel, it would be unlikely to appoint three different firms for that role. The Judge therefore denies the Plaintiffs' motion to appoint interim counsel. In sum, Judge Tigar (i) denied VPX's motions to transfer, (ii) granted the Plaintiffs' motion to consolidate, and (iii) denied without prejudice the Plaintiffs' motion to appoint the interim class counsel. A full-text copy of the Court's April 5, 2019 Order is available at https://is.gd/XzVw4y from Leagle.com. Ismail Imran & Zach Hess, on behalf of themselves and all others similarly situated, Plaintiffs, represented by Reuben D. Nathan -- rnathan@nathanlawpractice.com -- Nathan & Associates, APC, Joel Dashiell Smith -- jsmith@bursor.com -- Bursor & Fisher, P.A. & Lawrence Timothy Fisher -- ltfisher@bursor.com -- Bursor & Fisher, P.A. Vital Pharmaceuticals, Inc., a Florida corporation, Defendant, represented by Michael D. Kanach -- mkanach@grsm.com -- Gordon Rees Scully Mansukhani LLP, Holly L.K. Heffner -- hheffner@grsm.com -- M.D. Scully -- mscully@grsm.com -- Gordon Rees Scully Mansukhani, LLP & Timothy K. Branson -- tbranson@grsm.com -- Gordon Rees Scully Mansukhani LLP. Kuumba Madison, Movant, represented by Jonathan Shub -- jshub@kohnswift.com -- Kohn, Swift & Graf, P.C. WARREN COUNTY, OH: Ct. Certifies Class in Adoption Assistance Suit ------------------------------------------------------------------ The United States District Court for the Southern District of Ohio, Western Division, issued a Report and Recommendation granting Plaintiffs' motion to certify the class in the case captioned ADOPTIVE FAMILY #1 AND THEIR DAUGHTER A, et al., Plaintiffs, v. WARREN COUNTY, OHIO/WARREN COUNTY BOARD OF COMMISSIONERS, Defendant. Case No. 1:18-cv-179. (S.D. Ohio). Plaintiffs Adoptive Families #1, #2, and #3 are families who have adopted children with special needs after serving them as foster parents. They seek to represent a class of all current and potential adoptive parents, and their adopted children, who are eligible to receive subsidies under Title IV-E of the Adoption Assistance and Child Welfare Act and who fall under the jurisdiction of Warren County Children Services. The Plaintiffs allege that Warren County denies eligible children adoption assistance to which they are entitled and obstructs families' access to such assistance in violation of the United State Constitution and Title IV-E. The Plaintiffs seek declaratory and injunctive relief against Warren County for these alleged violations. The Plaintiffs move for class certification under Fed. R. Civ. P. 23(a) and (b)(2). They seek to represent a class consisting of all current and potential adoptive parents and their adopted children who are eligible to receive subsidies under Title IV-E of the Adoption Assistance and Child Welfare Act who fall under the jurisdiction of Defendant Warren County, Ohio and/or Warren County Public Children's Services Association. Numerosity Rule 23(a)(1) requires that the class be so numerous that joinder of all members is impracticable. There is no strict numerical test for determining numerosity. There are 160 adoptive families in Warren County and the putative class is so numerous that joinder would be impracticable. Warren County has not argued that the proposed class does not meet the numerosity element. The Court therefore concludes that plaintiffs have satisfied the numerosity requirement of Rule 23(a)(1). Commonality Rule 23(a)(2) mandates the existence of questions of law or fact common to the class. There are questions of fact and law common to all of the proposed class members. Warren County has alleged a common defense in this case: that plaintiffs do not have an enforceable right to adoption assistance payments under 42 U.S.C. Section 673 because payment of the subsidy is within the discretion of the State administering Title IV-E funds. Warren County contends that states have the discretion in determining when and in what amounts to provide adoption assistance subsidies. Whether adoptive families have an enforceable right to adoption assistance subsidies under the federal statute is a question shared by all adoptive families in Warren County. Warren County's arguments relate to the merits of the underlying case as to whether Warren County has a policy or practice that limits adoption assistance subsidies in a way that violates federal law. The Court's task is not to resolve the merits of plaintiffs' claims or Warren County's defenses at this juncture but to assess whether plaintiffs have raised common questions of fact or law that meet the Rule 23 requirements for class action certification. While the specific amount of the adoption assistance subsidy may vary from family to family, the factual issues concerning the policies and practices Warren County follows in setting adoption subsidies, the criteria used and the types of expenses it will consider in the adoption subsidy process will be the same for each class member. Resolution of plaintiffs' claims will advance the litigation as a whole and affect each member of the class. The common questions of fact and law outlined above meet the requirements of Rule 23(a)(2). Therefore, the Court finds the commonality requirement is satisfied. Typicality Rule 23(a)(3) requires that the claims or defenses of the representative parties be typical of the claims or defenses of the class. A claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members, and if his or her claims are based on the same legal theory. Warren County argues that class certification is inappropriate because the named plaintiffs' claims are atypical of the putative class members. First, Warren County asserts that the named plaintiffs lack standing to pursue the class claims for declaratory and injunctive relief. Second, Warren County argues that the named plaintiffs' claims are not typical of the proposed class. To establish standing, a plaintiff must demonstrate that (1) he or she has suffered an injury (2) the injury is traceable to the defendant's conduct and (3) a federal court decision is likely to redress the injury. There is no question that all three named Adoptive Families had a live, actionable claim for injunctive relief at the time they filed suit. At the time of the filing of the amended complaint, none of the Adoptive Families had renegotiated their adoption assistance subsidy agreements. In addition, all of the named Adoptive Families were subject to the policies and practices challenged in this case at the time their original adoption assistance subsidies were determined. Warren County also argues that the claims of the named class representatives are not typical of the putative class because Adoptive Families #1 and #2 have renegotiated their adoption subsidies for amounts that meet or exceed the amounts they were receiving for foster care maintenance payments, and Adoptive Family #3 has voluntarily disengaged from the adoption assistance process. Warren County essentially reiterates the same arguments it made regarding standing, which for the reasons discussed above do not render the claims of the named Adoptive Families #1 through #3 atypical of the putative class. Plaintiffs challenge the process used by Warren County in negotiating adoption assistance subsidies and will be subjected to the very same process at each renegotiation of such subsidies. The named plaintiffs' interests are aligned with those of the putative class, and the injunctive and declaratory relief sought will inure to the benefit of all class members. The Court concludes plaintiffs have established that the proposed class meets the typicality requirement of Rule 23(a)(3). Adequacy of Representation Under Rule 23(a)(4), plaintiffs must demonstrate that the representative parties will fairly and adequately protect the interests of the class. The Sixth Circuit has "articulated two criteria for determining adequacy of representation: 1) the representatives must have common interests with unnamed members of the class, and 2) it must appear that the representatives will vigorously prosecute the interests of the class through qualified counsel. The named plaintiffs challenge Warren County's policies and practices in determining adoption assistance subsidies that apply to all adoptive families and there is no indication that the interests of Adoptive Families #1, #2, and #3 are antagonistic to those of the putative class members. The Court concludes that plaintiffs will fairly and adequately protect the interests of the class. With regard to the qualifications of counsel, plaintiffs allege their counsel is qualified, experienced and able to conduct the instant litigation, and Warren County does not argue that plaintiffs' counsel is unqualified. Based on plaintiffs' representations and Warren County's lack of opposition, the Court finds the final Rule 23(a) requirement is met. Accordingly, the Plaintiffs' motion to certify the class is granted. A full-text copy of the District Court's February 28, 2019 Report and Recommendation is available at https://tinyurl.com/y5mjvm86 from Leagle.com. Adoptive Family #1 and Their Daughter A., Individually and on behalf of class of similarly situated children and parents, Adoptive Family #2 and Their Children B. and C., Individually and on behalf of class of similarly situated children and parents & Adoptive Family #3 and Their Children D. and E., Plaintiffs, represented by Barbara Thornell Ginn, Jennifer Lynn Branch, Gerhardstein & Branch Co. LPA, Mary Caroline Hyatt, Gerhardstein & Branch Co LPA & Alphonse Adam Gerhardstein, Gerhardstein & Branch Co. LPA. Warren County, Ohio/Warren County Board Of Commissioners, Defendant, represented by John Stephen Teetor, Isaac Wiles Burkholder & Teetor, LLC, Kathryn M. Horvath, Warren County Prosecutor's Office & Aaron Michael Glasgow, Isaac, Wiles, Burkholder & Teetor, LLC. WASHINGTON: Settles CRT Antitrust Class Action for $39MM -------------------------------------------------------- If You Are a Washington Consumer Who Bought a Television or Monitor Between March 1, 1995 and November 25, 2007 That Contained a Cathode Ray Tube You May Be Eligible to Participate in a Settlement. The Washington State Attorney General reached a settlement in an antitrust lawsuit involving the price of cathode ray tubes ("CRTs") incorporated into televisions and computer monitors. A CRT is a vacuum tube that was used to display images in televisions and monitors before LCD, Plasma, and LED display technologies became popular. Who is included in the settlement? The settlement benefits Washington consumers (individuals and businesses) and Washington state governmental entities that purchased one or more CRT television(s) or CRT monitor(s) between March 1, 1995 and November 25, 2007: Washington consumers: You are eligible to participate in the settlement if you or your business: -- purchased a CRT television or CRT monitor between March 1, 1995 and November 25, 2007; and -- resided or had headquarters in Washington at the time of purchase; and -- purchased the CRT television or CRT monitor from a retailer (or someone other than the manufacturer of the CRT component part); and -- purchased the CRT television or CRT monitor for your own use and not for resale. Washington state governmental entities: The Washington State Attorney General also settled claims on behalf of the state governmental entities that participated in the lawsuit. What do the settlements provide? The settlements total more than $39 million. More details are in the Settlement Agreements and other documents available at www.crtsettlement.atg.wa.gov. The cost of administering the settlements, as well as the Washington State Attorney General's attorney fees and costs, will come out of the Settlement Fund. A portion of the Settlement Fund will be distributed to the state governmental entities that participated in the lawsuit. Claims from individual and business consumers in Washington will be paid out of the remainder of the Settlement Fund. The amount you or your business could expect to receive will vary depending on the number of CRT television(s) and/or CRT monitor(s) purchased, up to a maximum of $20 per CRT monitor and $6 per CRT television. However, your recovery could be a smaller amount than the maximum because there is a limited amount of money in the Settlement Fund. The amount paid per CRT television and CRT monitor and the number of claims allowed per consumer will depend on the number of claims submitted. It is also possible that all or a portion of the fund will be distributed to charities, governmental entities, or other beneficiaries depending on the number of claims submitted. How can I get a payment? You must submit a Claim Form to get a payment. You can submit a Claim Form online or by mail. The deadline to submit a Claim Form is May 16, 2019. Claim forms are available at www.crtsettlement.atg.wa.gov or by calling 1-800-332-9084. You do not need to pay a fee to participate in this settlement. Claims must be filed by the claimant, and not by a third-party, with payments to go directly to the claimant. For More Information: 1-800-332-9084 http://www.crtsettlement.atg.wa.gov/[GN] WATKINS AND SHEPARD: Watkins Stayed Pending Sampson, IBT Resolution ------------------------------------------------------------------- In the case, TOM DOTY, individually and on behalf of all others similarly situated, Plaintiff, v. WATKINS AND SHEPARD TRUCKING, INC., a Montana corporation, and DOES 1-10, inclusive, Defendant, Case No. 3:19-cv-05236-RBL (W.D. Wash.), Judge Ronald B. Leighton of the U.S. District Court for the District of Washington, Tacoma, has issued a stipulate order staying the case pending (i) Washington Supreme Court's resolution of certified question in Sampson v. Knight Transportation, Inc.; and (ii) the Ninth Circuit's decision in International Brotherhood of Teamsters, Local 2785 v. FMCSA. On Feb. 25, 2019, Plaintiff Doty filed the operative putative Class Action Complaint for Unpaid and Wrongfully Withheld Wages in the action in the Superior Court of the State of Washington in and for Pierce County. On March 28, 2019, Defendant Watkins removed the Plaintiff's state court action to the Court, invoking the subject matter jurisdiction of the Court under the Class Action Fairness Act ("CAFA"). In his Complaint, the Plaintiff alleges, inter alia, that in Carranza v. Dovex Fruit Co., the Washington Supreme Court held that employers who pay agricultural workers on a piece-rate basis must compensate the workers on a separate hourly basis for time spent performing activities that are outside the scope of the piece rate picking work, and that the Defendant's piece-rate compensation system is virtually indistinguishable from the piece rate scheme in Carranza. He further alleges that, in Sampson v. Knight Transportation, Inc., the court recognized that while non-productive time claims were previously denied class certification, and the grounds that such claims were not cognizable under Washington law, the court's prior holdings were called into question by the Washington Supreme Court's recent ruling in Caranza. Based upon Plaintiff's interpretation of Carranza and Sampson, the Complaint asserts causes of action for (1) Violations of RCW 49.46.020, 090 for Failure to Pay Minimum Wage for All Hours Worked, (2) Violation of RCW 49.52.050(2) for Failure to Satisfy Wage Obligations Assumed Through Contract, and (3) Double Damages for Willful and Intentional Withholding of Wages Pursuant to RCW 49.52.050, 070 stemming therefrom . The district court in Sampson concluded that the law underlying the Plaintiffs' on duty, not driving claim is not clearly determined, and that the Washington Supreme Court is in a better position than the Court to answer the question, and therefore certified the following question to the Washington Supreme Court: "Does the Washington Minimum Wage Act require non-agricultural employers to pay their piece-rate employees per hour for time spent performing activities outside of piece-rate work?" The briefing on the district court's certified question in Sampson has been completed in the Washington Supreme Court as of Dec. 21, 2018, and the Washington Supreme Court has scheduled Sampson for oral argument for May 16, 2019, and has not rendered its decision in that proceeding. The parties agree that the Washington Supreme Court's resolution of the question certified in Sampson could directly impact the disposition of the Plaintiff's claims asserted in the action, which assert an on-duty, not driving time unpaid wages claim similar to that asserted by the plaintiffs in Sampson. In his Complaint, and relying on Demetrio v. Sakuma Bros., Inc., the Plaintiff also alleges that, under Washington law, employers paying employees on a piece-rate scheme must pay workers for rest periods separate and apart from the piece. On Dec. 21, 2018, the Federal Motor Carrier Safety Administration ("FMCSA") issued an Order granting the American Trucking Associations' and the Specialized Carriers and Rigging Association's petition requesting a determination that California's meal and rest break rules are preempted under 39 U.S.C. Section 31141 as applied to property-carrying commercial motor vehicle ("CMV") drivers, which differed from an earlier decision it had made in 2008 that: FMCSA cannot entertain the petition. Because the California meal and rest break rules are not regulations on commercial motor vehicle safety, the Agency has no authority to preempt them under 49 U.S.C. 31141. The FMCSA's Dec. 21, 2018 Order also noted that 20 States in addition to California regulate, in varying degrees, meal and rest break requirements, including Washington. On Dec. 27, 2018, the International Brotherhood of Teamsters ("IBT") filed a Petition for Review of the FMCSA's Dec. 21, 2018 Order in the U.S. Court of Appeals for the Ninth Circuit, requesting the court review and reverse the FMCSA's preemption decision, which matter has since been consolidated with three other pending appeals against the FMCSA and the U.S. Department of Transportation ("DOT") involving the FMCSA's preemption decision by joint motion of the parties. Pursuant to that same Joint Motion, the parties' in the consolidated actions have agreed that petitioners' opening briefs will be filed on April 29, 2019, and the FMCSA and DOT will file their answering briefs on May 28, 2019. The parties agree that the FMCSA's Dec. 21, 2018 Order's validity, significance, potential application to other states, and prospective versus retroactive applicability are all disputed legal issues, some of which may be resolved through the Ninth Circuit's resolution of IBT's Petition for Review, including without limitation the parties' disputed issues of whether and to what extent the FMCSA's Dec. 21, 2018 Order is applicable and/or its temporal effectiveness in relation to Washington's rest break laws, and whether and to what extent Washington's rest break laws are preempted by the FMCSA's hours of service regulations. The Plaintiff, on the one hand, and the Defendant, on the other hand, stipulated and agreed, and Judge Leighton approved, that: 1. The Court has subject matter jurisdiction over this action under CAFA; 2. The dates set forth in the Court's Order Regarding Initial Disclosures, Joint Status Report, and Early Settlement and all other deadlines currently set in the action be vacated, including without limitation the Plaintiff's deadline to move for class certification under LCR 23(i)(3); 3. The action be stayed, in its entirety and for all purposes, pending the Washington Supreme Court's decision on the certified question in Sampson v. Knight Transportation, Inc., Wash. S.Ct. Case No. 96264-2, and the Ninth Circuit's decision International Brotherhood of Teamsters, Local 2785 v. FMCSA, 9th Cir. Case No. 18-73488, on the International Brotherhood of Teamsters' Petition for Review of the FMCSA's Order granting a determination of preemption; 4. Within 14 days of the Washington Supreme Court's decision in Sampson and/or the Ninth Circuit's decision in IBT, whichever decision is issued first, the parties will file a joint status report with the Court that (1) informs the Court regarding that court's decision and (2) sets forth the parties' respective and/or collective positions as to whether the stay should remain in effect pending a decision in the other action; a. If the parties agree that the stay should be lifted after the first-issued decision, the parties' joint status report will also provide the Court with agreed-upon and/or proposed deadlines for [i] the Defendant to respond to the complaint by answer, motion, or otherwise; [ii] the Plaintiff to move for class certification under Fed. R. Civ. P. 23; and [iii] initial disclosures and submission of the parties' Joint Status Report and Discovery Plan. b. If the parties agree that the stay should not be lifted after the first-issued decision, the parties' joint status report will be submitted within 14 days following the second-issued decision and will provide the Court with agreed-upon and/or proposed deadlines for [i] the Defendant to respond to the complaint by answer, motion, or otherwise; [ii] the Plaintiff to move for class certification under Fed. R. Civ. P. 23; and [iii] initial disclosures and submission of the parties' Joint Status Report and Discovery Plan. 5. Unless otherwise ordered by the Court in response to the parties' joint status report as referenced above, (a) the Defendant's 21-day deadline to respond to the complaint by answer, motion, or otherwise, and (b) the Plaintiff's presumptive deadline under LCR 23(i)(3) to move for class certification, will commence running upon the Court lifting the stay of the action. In the event the Stipulated Motion is not granted by the Court, then those deadlines will commence running upon the Court's entry of its Order to that effect. 6. By entering into and submitting the Stipulated Motion, the parties fully reserve, and do not waive or limit, their respective rights, claims, remedies, defenses, and positions in this action, including as to the issues recited. A full-text copy of the Court's April 5, 2019 Order is available at https://is.gd/UwE18l from Leagle.com. Tom Doty, individually and on behalf of all others similarly situated, Plaintiff, represented by Brian Walter Denlinger, ACKERMANN & TILAJEF, P.C., Craig Ackermann, ACKERMANN AND TILAJEF PC & India Lin Bodien. Watkins and Shepard Trucking Inc, a Montana Corporation, Defendant, represented by Kasey D. Huebner -- khuebner@millsmeyers.com -- MILLS MEYERS SWARTLING. WAYFAIR LLC: Hamilton Suit Removed to N.D. California ----------------------------------------------------- The case captioned as LIONESHA HAMILTON, individually, and on behalf of other members of the general public similarly situated, Plaintiff, v. WAYFAIR LLC, an unknown business entity; and DOES 1 through 100, inclusive, Defendants, Case No. RG19006990 was removed from the Superior Court for the County of Alameda to the United States District Court for the Northern District of California on April 26, 2019, and assigned Case No. 3:19-cv-02291-JCS. Plaintiff alleges that "she and the other class members have been personally injured by Defendants' unlawful business acts and practices" and that "she and the other class members are entitled to restitution of the wages withheld and retained by Defendants during a period that commences four years preceding the filing of this Complaint".[BN] The Defendants are represented by: Jon D. Meer, Esq. Bethany A. Pelliconi, Esq. SEYFARTH SHAW LLP 2029 Century Park East, Suite 3500 Los Angeles, CA 90067-3021 Phone: (310) 277-7200 Facsimile: (310) 201-5219 Email: jmeer@seyfarth.com bpelliconi@seyfarth.com - and - Paul J. Leaf, Esq. SEYFARTH SHAW LLP 601 South Figueroa Street, Suite 3300 Los Angeles, CA 90017-5793 Phone: (213) 270-9600 Facsimile: (213) 270-9601 Email: pleaf@seyfarth.com WEBB & GERRITSEN: Violates Wisconsin Wage Laws, Klahn Suit Says --------------------------------------------------------------- JUSTIN KLAHN, on behalf of himself and all others similarly-situated, Plaintiff, v. WEBB & GERRITSEN, INC., Defendant, Case No. 2:19-cv-00605-WED (E.D. Wis., April 25, 2019) is a collective and class action brought pursuant to the Fair Labor Standards Act of 1938 ("FLSA"), and Wisconsin's Wage Payment and Collection Laws ("WWPCL") for unpaid overtime compensation, unpaid agreed upon wages, liquidated damages, costs, attorneys' fees, declaratory and/or injunctive relief, and/or any such other relief the Court may deem appropriate. The complaint says the Defendant operated (and continues to operate) an unlawful compensation system that deprived current and former Sales Service employees of their wages earned for all compensable work performed each workweek, including at an overtime rate of pay for each hour worked in excess of 40 hours in a workweek. Defendants improperly classified said employees as "exempt" for compensation purposes under the FLSA and WWPCL. In reality, Plaintiff and all other current and former Sales Service were "non-exempt" employees under the FLSA and WWPCL and legally entitled to an overtime rate of pay for each hour worked in excess of 40 hours in a workweek, says the complaint. Plaintiff was hired by Defendant as a Sales Service employee n approximately November 2014. Webb & Gerritsen, Inc., is a food and beverage wholesale distribution company headquartered in New Berlin, Wisconsin.[BN] The Plaintiff is represented by: James A. Walcheske, Esq. Scott S. Luzi, Esq. David M. Potteiger, Esq. WALCHESKE & LUZI, LLC 15850 W. Bluemound Road, Suite 304 Brookfield, WI 53005 Phone: (262) 780-1953 Fax: (262) 565-6469 Email: jwalcheske@walcheskeluzi.com sluzi@walcheskeluzi.com dpotteiger@walcheskeluzi.com WELLS FARGO: Rogers Sues over Credit Background Checks ------------------------------------------------------ A class action complaint has been filed against Wells Fargo Bank, N.A. for alleged violation of the Fair Credit Reporting Act (FCRA). The case is captioned WYLIE S. ROGERS, individually, and on behalf of all others similarly situated, Plaintiff, v. WELLS FARGO BANK, N.A., Defendant, Case No. 1:19-cv-02596 (N.D. Ill., April 17, 2019). Rogers seeks redress from Wells Fargo's actions in knowingly obtaining Plaintiff's credit report without a permissible purpose, in violation of the FCRA. Wells Fargo had obtained his credit report from Experian on Sept. 6, 2017, after Plaintiff's bankruptcy discharge. Defendant's misrepresentation and false certification that it had a permissible purpose to access Plaintiff's credit report resulted in Experian releasing highly confidential and sensitive personal information concerning Plaintiff to Defendant. Consequently, Plaintiff has suffered damages in the form of invasion of privacy and fear that he may be a victim of identity theft. Wells Fargo is a national banking institution, mortgage lender, and mortgage servicer. Its principal place of business is located at 101 N. Phillips Avenue, Sioux Falls, SD. Wells Fargo regularly furnishes consumer credit information to the major reporting agencies, including Experian, Equifax, and TransUnion. [BN] The Plaintiff is represented by: Mohammed O. Badwan, Esq. Marwan R. Daher, Esq. SULAIMAN LAW GROUP, LTD 2500 S Highland Ave, Suite 200 Lombard, IL 60148 Telephone: (630) 575-8181 E-mail: mbadwan@sulaimanlaw.com mdaher@sulaimanlaw.com WESTJET: Unions Slow to Address Sexual Assault Case --------------------------------------------------- Alex McKeenStar, writing for The Star, reports that the former flight attendant who launched a class-action lawsuit against WestJet after she alleged sexual assault by a pilot says the unions now representing pilots and flight attendants have been slow to take up the cause. Those unions say they believe sexual harassment in the airline industry needs to be addressed but argue there's little they can do for Mandalena Lewis' case because she is not a member of either organization. "The fact of the matter is (sexual assault in the airline industry) has been a historic and systemic problem that has not yet been uprooted," Lewis said in an interview on April 5. "They've been hiding; straight up, the unions have been hiding." Court documents filed in 2016 in B.C. Supreme Court say Lewis was on a stopover in Hawaii in January 2010 when an unnamed WestJet pilot allegedly pulled her onto a hotel bed and proceeded to kiss and grope her. The allegations have not been tested in court. The court document says that after she reported the alleged incident, the Calgary-based company changed Lewis' work schedule to avoid overlap with the pilot, which left her with fewer working hours. It also alleges she was instructed to keep quiet out of respect for the pilot's privacy. Lewis was subsequently fired for insubordination. She proposed a class-action lawsuit in 2017 on behalf of current and former female flight attendants at WestJet, which she said has failed to implement anti-harassment programs. WestJet has denied that allegation. Lewis then made extensive efforts to raise awareness about the case on Twitter and by demonstrating at YVR airport in support of other former flight attendants facing similar battles. She hoped the new unions could help with those efforts to raise awareness. At the time of her alleged assault, neither WestJet pilots nor flight attendants were unionized. Lewis herself was part of an effort to get employee representation for the flight attendants. They are represented now. As of last summer, flight attendants are backed by the Canadian Union of Public Employees (CUPE), the largest public-sector union in the country. The pilots got certification with the Air Line Pilots Association (ALPA), the world's largest pilot union, in 2017. Lewis has contacted CUPE and pilot representatives about her alleged assault -- expecting on the recommendation of her unionized friends and family that they could help her raise awareness about the case and the problems of sexual harassment in the industry. Since her employment was terminated before the CUPE union drive, Lewis was not a CUPE member. CUPE offered general words of support to Lewis in February, when approached by the Star following news that an appeal court would allow the certification of her class action to go forward. "What happened to Mandalena Lewis should not have happened, and she has the support of CUPE," said Lou Arab of the Canadian Union of Public Employees Alberta, where the flight attendants' union is based, in a previous interview. "As a union of flight attendants, obviously we are very concerned about the issue. We think WestJet employees need more significant protection." But Lewis said that was the first time she heard a public statement from CUPE on her case -- which, as a class action that proposes to capture both current and former WestJet flight attendants, could directly involve their members. Lewis has reached out repeatedly to CUPE employees over Facebook messenger asking for advice and, especially, public support for her cause. She's received sympathy and well-wishes but little else. "The fact that it takes someone to come forward, to go through what I'm going through, to be begging them for help," she said. "What I would have done is show up the next day, have a protest, have a rally, have signs ready." A CUPE spokesperson reached on April 5 said Arab's comments still stand and that the union won't get involved in the class action. Lewis told a pilot who is now a WestJet ALPA executive member what happened to her in the summer of 2016 -- before the pilots had unionized. "When I initially called him I thought he was going to react like my partner when I told him. Like we need to react right now and get organized," Lewis said. He listened to her, Lewis said, but hasn't heard from him since. In a statement to the Star, ALPA spokesperson Robert Lynch said "ALPA takes any claims of assault or harassment extremely seriously and we encourage all flight crews to report instances of harassment so that they can be addressed appropriately." The union does not appear to have an anti-sexual harassment policy on its website and did not respond on the record to questions about why it has not made a statement on Lewis' case. With files from Jenny Peng [GN] WHIRLPOOL CORP: Ct. Junks Objections to Discovery Master's Report ------------------------------------------------------------------ The United States District Court for the Eastern District of Michigan, Southern Division, issued an Order overruling Plaintiffs' objections and Defendant's objections to the discovery master's report and recommendation in the case captioned TOBY SCHECHNER, et al., Plaintiffs, v. WHIRLPOOL CORPORATION, Defendant. Case No. 2:16-cv-12409. (E.D. Mich.). The litigation is a putative class action in which Plaintiffs allege that Whirlpool's marketing and advertising for its ovens with AquaLift self-cleaning technology (AquaLift ovens) were false, deceptive, and misleading because the ovens did not clean as effectively as advertised. Defendant's Objection Regarding Mr. Weir's Conjoint Analysis The Defendant argues that Mr. Weir's conjoint analysis failed to take into account supply-side considerations such as the effect that marketplace competition among manufacturers and retailers had on the price retailers might have charged for AquaLift partial-clean' ovens, regardless of what consumers might have been willing to pay for them. Defendant argues that Mr. Weir's use of real world price points does not reflect the interplay of supply and demand absent the alleged self-cleaning misrepresentation. Prices are set by supply and demand. To be reliable, then, Plaintiffs' analysis of prices must cover both supply-side and demandside considerations. Here, Mr. Weir's conjoint analysis sufficiently considered supply-side considerations. He analyzed the prices for self-cleaning ovens and partially selfcleaning ovens and the price premiums between the two. Allegedly, Defendant supplied partially self-cleaning ovens instead of fully self-cleaning ovens. The price premium for partially self-cleaning ovens captured the differential for partially cleaning ovens as allegedly supplied. Mr. Weir's exclusion of additional supply-side factors goes to the weight of his opinion, not its admissibility. The Court therefore overrules Defendant's objection regarding supply-side considerations in Mr. Weir's conjoint analysis. Defendant's Objection Regarding Mr. Weir's Hedonic Regression Analysis Defendant argues that Mr. Weir's hedonic regression analysis could not isolate the impact of only AquaLift ovens' disputed cleaning performance on customer preference. Defendant points out that AquaLift ovens also include cleaning benefits and non-cleaning benefits, such as a larger window and cavity and improved cooktop performance. Defendant therefore objects to Mr. Sharkey's statement that it is not the Court's role to determine facts related to which alleged features an AquaLift Oven may contain or which alleged features are important to consumers. A preponderance of the evidence shows that Mr. Weir's hedonic regression analysis is verifiable and comports with established scientific principles. Defendant does not dispute that hedonic regression is a valid statistical tool. And the analysis is relevant to the issues in the case, as it attempts to identify a price premium associated with the self-cleaning label at issue. The alleged deficiencies that Defendant identifies in Mr. Weir's hedonic regression analysis namely, the failure to consider non-cleaning benefits of AquaLift Ovens— goes to the strength of his opinion, not its reliability. The Court therefore overrules Defendant's objection regarding Mr. Weir's hedonic regression analysis. The Defendant's Objection to Mr. Sharkey's Statement about Whether Mr. Weir's Fixed-Percentage Price Premium Approach Needed to Undertake Highly Individualized Inquiry The Defendant next objects to Mr. Sharkey's conclusion that an individual damages inquiry is not required at the admissibility stage because Plaintiffs pursue a benefitof-the-bargain theory of recovery. Defendant concedes that Mr. Sharkey's finding that Mr. Weir's fixed-percentage price premium approach was relevant to prove Plaintiffs' benefit-of-the-bargain theory was sufficient to deny Defendant's motion under Rule 702. The Defendant's objection takes Mr. Sharkey's statement out of context. As Defendant recognizes, the Court appointed Mr. Sharkey to address the admissibility of expert opinions. Mr. Sharkey was observing Plaintiffs' characterization of their damages theory for the purposes of determining whether Mr. Weir's analysis was relevant and reliable enough to be admissible. Mr. Weir's fixed percentage price premium approach is sufficiently relevant and reliable to be admissible. The Court therefore overrules Defendant's objection regarding Mr. Sharkey's statement about individualized inquiry. Plaintiffs' Objection Regarding Dr. Simonson's Conclusions About Consumer Expectations The Plaintiffs argue that Dr. Simonson was not qualified to conclude that consumers had unrealistic or inaccurate perceptions of self-cleaning effectiveness because he does not have a technical background and did not conduct any technical tests about the ovens' self-cleaning ability. They criticize Dr. Simonson for relying on too few documents in determining that there was a discrepancy in consumer expectations of ovens' self-cleaning effectiveness. Dr. Simonson has extensive expertise in consumer behavior and consumer research. He is therefore qualified to measure and observe consumers' perceptions and expectations about the effectiveness of ovens' self-cleaning feature. But, in forming his opinion, Dr. Simonson not only reviewed another manufacturer's manual for its pyrolytic self-cleaning oven but also studied Defendant's documents detailing the process of cleaning an AquaLift oven. Dr. Simonson thus based his opinions upon sufficient facts and data his survey results and Defendant's product user guides and instructions. The documents are sufficiently reliable and relevant to his opinions about consumer expectations. His opinions about a discrepancy in consumer expectations of ovens' self-cleaning effectiveness are therefore admissible. The Court will overrule Plaintiffs' objection. Plaintiffs' Objection Regarding Dr. Simonson's Assumption that AquaLift Self-Clean is Not a Standalone Product Feature The Plaintiffs argue that Dr. Simonson failed to consider evidence that AquaLift self-clean is an isolated product feature. They criticize him for relying on the deposition of Defendant's general manager and a small subset of documents. Dr. Simonson based this statement on deposition testimony and pertinent product-related documents. Dr. Simonson's assumption, then, is rooted in sufficient facts and data to be reliable. Admissibility of Dr. Simonson's opinion does not turn on whether the AquaLift self-clean feature is actually isolatable as an economic matter. The Court will overrule Plaintiffs' objection. Plaintiffs' Objection Regarding Dr. Simonson's Use of a Modified Home Depot Advertisement and Dr. Simonson's Survey of "Pyrolytic Self-Clean Technology" Instead of "Self-Clean" The Plaintiffs renew their arguments that Dr. Simonson's opinions are unreliable because his survey used a modified Home Depot advertisement and because it asked respondents the meaning of pyrolytic self-clean instead of "self-clean" technology. First, Plaintiffs argue that the modification of the advertisement which added AquaLift before self-cleanhanged the prominence of the terms in the advertisement. Dr. Simonson's modification of the advertisement was minor and was not so removed from reality as to render his opinions unreliable. Dr. Simonson left most of the advertisement unchanged. Second, Plaintiff's argue that Dr. Simonson's testing of the meaning of pyrolytic self-cleaning did not capture consumers' understanding of self-cleaning, because testing the meaning of pyrolytic self-cleaning (1) was irrelevant to the case or Plaintiffs' allegations and (2) confused respondents. Testing the meaning of pyrolytic self-cleaning is not irrelevant to the case or Plaintiffs' allegations. Pyrolytic self-cleaning is a more traditional form of selfcleaning that is not present in AquaLift ovens. Dr. Simonson found that consumers had unrealistic expectations of self-cleaning features. Testing whether consumers misunderstood pyrolytic self-cleaning was therefore relevant to whether consumers misperceived the AquaLift self-cleaning feature specifically or self-cleaning features generally. The Court therefore overrules Plaintiffs' objections to Mr. Sharkey's conclusions regarding Dr. Simonson's opinions. It will deny Plaintiffs' motion to strike the opinions of Dr. Simonson. Plaintiffs' Objection Regarding Dr. Ugone's Opinion on the Isolatability of the AquaLift Feature The Plaintiffs object that the Report did not address their arguments regarding Dr. Ugone's conclusion that the AquaLift feature was not isolatable. The Court is not persuaded by Plaintiffs' arguments that attack Dr. Ugone for ignoring Defendant's advertisements which suggest that AquaLift was a standalone feature. Dr. Ugone did not opine that AquaLift and other benefits were never marketed together; instead, he opined that they were positively correlated and had a positive impact on oven prices. Dr. Ugone concluded that Mr. Weir's coefficient on AquaLift captured the additional value attributable to the cleaning features and the additional value attributable to the non-cleaning features for which Named Plaintiffs are not claiming damages. The existence of webpages marketing AquaLift and other benefits together does not render Dr. Ugone's conclusion unreliable. Dr. Ugone relied upon sufficient facts and data in concluding that Mr. Weir failed to isolate AquaLift from other benefits. His opinion is therefore admissible. Plaintiffs' Objection Regarding Dr. Ugone's Conclusion that Individual Inquiry is Necessary Plaintiffs object that the Report did not explicitly analyze their argument that Dr. Ugone's conclusion that individualized inquiry was needed should be stricken as a legal conclusion. They take issue with Dr. Ugone's conclusion that the individual inquiries such as consumer expectations, purchase drivers, and consumers' satisfaction with AquaLift's cleaning ability are needed to quantify the consumers' injuries. A witness may not testify to a legal conclusion. But an opinion is not objectionable just because it embraces an ultimate issue. An expert testifying about factual issues may state opinions that suggest the answer to the ultimate issue. Dr. Ugone made an economic conclusion, not a legal conclusion, about whether individualized inquiry was necessary. Mr. Weir had calculated an average price premium across the putative class. Dr. Ugone criticized Mr. Weir for assuming that all individuals in the group experienced the effect captured by the average. He opined that Mr. Weir's calculated average did not account for real economic variations among individual consumers. The Court will not strike Dr. Ugone's opinion that individualized inquiry is needed. Plaintiffs' Objection Regarding Dr. Ugone's Bias Plaintiffs object to Mr. Sharkey's conclusion that Dr. Ugone's alleged bias was not disqualifying, arguing that the Report understated Dr. Ugone's bias. Whether Dr. Ugone is unlikely to embrace classwide damages does not render his testimony inadmissible. Allegations of an expert's bias go to credibility, not admissibility. Dr. Ugone did not unquestioningly oppose classwide damages. Instead, Dr. Ugone's response to Mr. Weir's testimony applied his educated understanding of economic principles to the facts and theory of the case. Dr. Ugone has an extensive background in economics, so he has sufficient specialized knowledge to assist the finders of fact in deciding the issues of the case. Plaintiffs' attacks on Dr. Ugone for his predisposition against classwide damages go to the weight of his opinions. The Court will overrule their objection. Plaintiffs' Objections Regarding Absence of Conjoint Analysis by Dr. Ugone Plaintiffs object that Dr. Ugone could not testify as to his expertise in surveytaking and market simulation and therefore could not opine pertaining to conjoint analysis. But Dr. Ugone's response to Mr. Weir's price premium calculation presented essentially economic criticisms. Dr. Ugone is qualified to testify about economics, so his economic critiques of Mr. Weir's opinions are admissible. For example, Dr. Ugone criticized Mr. Weir's methodology for failing to account fully for supply-side factors, such as including competitors' products, and to predict market prices. Dr. Ugone relied upon the software documentation to conclude that Mr. Weir measured willingness-to-pay and not price premium and that Mr. Weir interpreted his market simulation as market equilibrium. Dr. Ugone thus provided fundamentally economic observations about Mr. Weir's conclusions and methodology. Dr. Ugone's lack of direct experience in conducting consumer surveys or utilizing Sawtooth software goes to the weight of his opinions and not their admissibility. The Court will overrule Plaintiffs' objection and deny their motion to strike Dr. Ugone's opinions. Plaintiffs' Objection Regarding Dr. Rauschenberger's Methodology Plaintiffs' arguments about Dr. Rauschenberger's use of the stripe test go to the weight, not the admissibility, of his conclusion. The stripe test is sufficiently scientifically reliable. It is a standardized and reproducible method of measuring the cleaning performance of ovens and simulates reasonable levels of soiling with different foodstuffs that the average consumer may encounter when cleaning his or her oven. Even though he did not use the Consumer Reports method, he did utilize monster mash soil material in his stripe test. In any event, Dr. Rauschenberger is not required to use every available testing method for his conclusions to be admissible. The Court will overrule Plaintiffs' objection on this ground. Plaintiffs' Objection Regarding Dr. Rauschenberger's Expertise Plaintiffs' argument that Dr. Rauschenberger lacks sufficient expertise to render his third conclusion is not convincing. Plaintiffs have already acknowledged that Dr. Rauschenberger's comparison test was meant to determine what a consumer would do with different ovens under naturalistic circumstances. The test and Dr. Rauschenberger's third conclusion is therefore tied to his expertise in humanfactors psychology and is relevant to Dr. Rauschenberger's other conclusions interpreting Defendant's materials about AquaLift technology. Dr. Rauschenberger has valid psychological expertise and his testimony can assist the trier of fact. The value of his human-factors expertise and asserted lack of cleaning experience in a cleaning experiment goes to the weight, not the admissibility, of his opinion. The Court will overrule Plaintiffs' objection and deny Plaintiffs' motion to strike Dr. Rauschenberger's opinions. Accordingly, the Plaintiffs' objections and the Defendant's objections to the discovery master's report and recommendation are overruled. A full-text copy of the District Court's February 28, 2019 Order is available at https://tinyurl.com/y3z4lnwc from Leagle.com. Morley Witus, Special Master, represented by pro se. Toby Schechner, Barbara Barnes, Kathryn Limpede, Mary Ellen Thome, Richard Thome, Louise Miljenovic, Laura Bliss, Beverly Simmons & Candace Oliarny, Plaintiffs, represented by Jonah H. Goldstein, Robbins Geller Rudman and Down LLP, Lucas F. Olts -- lolts@rgrdlaw.com -- Robbins Geller Rudman and Dowd LLP, Mark Samuel Reich -- mreich@rgrdlaw.com -- Robbins Geller Rudman & Down LLP, Martha J. Olijnyk – mjo@miller.law -- The Miller Law Firm, Sharon S. Almonrode -- ssa@miller.law -- The Miller Law Firm, P.C., Stuart Andrew Davidson -- SDavidson@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP & E. Powell Miller -- epm@miller.law -- The Miller Law Firm. Whirlpool Corporation, Defendant, represented by Howard B. Iwrey – hiwrey@dykema.com -- Dykema Gossett, James P. Feeney – jfeeney@dykema.com -- Dykema Gossett, Jessica G. Scott -- scott@wtotrial.com -- Wheeler Trigg O'Donnell LLP, Julian Richard Ellis, Jr., Wheeler, Trigg, O'Donnell, LLP, Laura J. McNabb -- mcnabb@wtotrial.com -- Wheeler Trigg O'Donnell & Michael T. Williams -- williams@wtotrial.com -- Wheeler Trigg O'Donnell LLP. WHITE DOVE: Cooper Seeks Correct Overtime Wages ----------------------------------------------- MARK COOPER, on behalf of himself and all others similarly situated, Plaintiff, v. WHITE DOVE MATTRESS LTD., Defendant, Case No. 1:19-cv-00931 (N.D. Ohio, April 25, 2019) is a case challenging the policies and practices of Defendant that violated the Fair Labor Standards Act ("FLSA"), as well as the Ohio wage-and-hour laws, and Ohio Revised Code which requires prompt payment of earned wages. The complaint asserts that Defendant failed to include the non-discretionary attendance bonuses in Plaintiff's regular rate for purposes of computing overtime pay due to Plaintiff, thereby underpaying Plaintiff's overtime pay. Plaintiff has worked for Defendant as an hourly non-exempt employee in one of Defendant's Ohio offices in this district and division. Defendant is an Ohio corporation with its principal place of business in Cuyahoga County.[BN] The Plaintiff is represented by: Christopher J. Lalak, Esq. Jeffrey J. Moyle, Esq. NILGES DRAHER LLC 614 West Superior Avenue, Suite 1148 Cleveland, OH 44113 Phone: 216.230.2955 Email: clalak@ohlaborlaw.com jmoyle@ohlaborlaw.com WILDERNESS ALTERNATIVE: Bid to Certify Class in Walker Suit Denied ------------------------------------------------------------------ In the case, JOHN WALKER, LISA WALKER, C.G., a minor child, ROY PROVOST, AMY PROVOST, and J.P. a minor child, individually and on behalf of all others similarly situated, Plaintiffs, v. WILDERNESS ALTERNATIVE SCHOOL, INC., a Montana Corporation, Defendant, Case No. 4:18CR3006 (D. Mont.), Judge Donald W. Molloy of the U.S. District Court for the District of Montana, Missoula Division, (i) denied the Plaintiffs' Motion for Class Certification; and (ii) granted Wilderness' Motion to Deny Class Certification. Plaintiffs John Walker, Lisa Walker, and their minor son C.G., along with Roy Provost, Amy Provost, and their minor son J.P., represent a putative class challenging the marketing practices of Defendant Wilderness, a residential addiction treatment center in Marion, Montana. C.G. and J.P.'s parents sent them to the Wilderness Alternative School for treatment in April 2018. John Walker claims he spoke with Wilderness employee Chase Sewall about concerns that C.G. would attempt to run away if sent to the program. According to Walker, Sewall responded that Wilderness was a suitable place for C.G. and that there was "nowhere to run." Similarly, Roy and Amy Provost claim they spoke with Wilderness employee Ben Dorrington about concerns that J.P. was a flight risk. (Id. at 9, ¶ 29.) They claim Dorrington assured them that J.P. would be unable to escape. Both the Walkers and Provosts claim they relied on these assurances in deciding to send their sons to Wilderness. C.G. arrived at Wilderness on April 13. J.P. arrived on April 18. On April 19, J.P. broke into multiple Wilderness buildings, apparently looking for cigarettes. The next day, J.P. and another resident left Wilderness, purportedly by hitchhiking, and were later returned by police. On April 23, 2018, C.G. and J.P. left together in a truck owned by Wilderness. The Plaintiffs claim Wilderness left the truck's keys unsecured, which allowed the boys to escape. Wilderness denies leaving the keys unsecured and responds that C.G. and J.P. committed a criminal act in taking the truck. In any event, C.G. and J.P. did not return to Wilderness after leaving in the truck on April 23. On Sept. 5, 2018, the Plaintiffs sued Wilderness for fraud in the inducement, negligent misrepresentation, negligent infliction of emotional distress, and violations of the Montana Unfair Trade Practices and Consumer Protection Act. The crux of the Complaint is that Wilderness falsely represented it would provide a safe place for C.G. and J.P. The Plaintiffs sought to represent a putative class of all United States persons who have purchased Services from WTC and persons who have been provided Services from the applicable limitation period(s), through the filing date of the Complaint. The Court's Dec. 5, 2018 Scheduling Order set a March 6, 2019 deadline for class certification motions to be fully briefed. Wilderness filed a motion to deny class certification on February 19. On February 27, the Plaintiffs received an extension of the March 6 deadline. They filed a motion for class certification on March 11, 2019. Their motion amends the class definition to all United States persons who have purchased Services from WTC and persons who have been provided Services who were misled by WTC regarding the nature and extent of WTC's services, were induced into purchasing Services from WTC in reliance on WTC's misrepresentations and did not receive the promised Services. Judge Molloy finds that the proposed class fails to meet the numerosity and typicality requirements of Federal Rule of Civil Procedure 23 (a). Because the Plaintiffs have failed to establish the prerequisites to class certification under Rule 23(a), the Judge need not address the requirements of Rule 23(b). Accordingly, he (i) denied the Plaintiffs' Motion for Class Certification; and (ii) garnted Wilderness' Motion to Deny Class Certification. Because subject matter jurisdiction in the case is premised only on the Class Action Fairness Act, and the Plaintiffs have not pled an alternative basis for jurisdiction, the Judge dismissed the case without prejudice for lack of jurisdiction. A full-text copy of the Court's April 5, 2019 Order is available at https://is.gd/oqyDXy from Leagle.com. John Walker, Lisa Walker, C.G., a Minor Child, Roy Provost, Amy Provost & J.P., a Minor Child, individually and on behalf of others similarly situated, Plaintiffs, represented by Keith L. Gross -- keith@grosslaw.com -- GROSS LAW GROUP & Timothy M. Bechtold -- tim@bechtoldlaw.net -- BECHTOLD LAW FIRM. Wilderness Alternative School, Inc., a Montana Corporation, Defendant, represented by Justin K. Cole -- jkcole@GARLINGTON.COM -- GARLINGTON LOHN & ROBINSON, PLLP & Robert C. Lukes -- rclukes@GARLINGTON.COM -- GARLINGTON LOHN & ROBINSON, PLLP. YALAHA BAKERY: Berrios Seeks Regular and Overtime Wages, Damages ---------------------------------------------------------------- MADELINE BERRIOS, and other similarly-situated individuals, Plaintiff, v. YALAHA BAKERY LLC, HEINZ JUERGEN KLUMB, and ANNE MARIE KLUMB, individually, Defendants, Case No. 5:19-cv-00208 (M.D. Fla., April 25, 2019) is a cause of action brought by Plaintiff as a collective action to recover from Defendants regular wages, overtime compensation, liquidated damages, and the costs and reasonable attorney's fees under the provisions of the Fair Labor Standards Act ("FLSA"), on behalf of herself and all other current and former employees similarly situated to Plaintiff who worked in excess of 40 hours during one or more weeks on or after January 2018, without being properly compensated. According to the complaint, Plaintiff worked in excess of 40 hours every week period. However, she was not paid for overtime hours. Plaintiff clocked in and out, and Defendants were able to track the hours worked by Plaintiff and other similarly situated individuals. Therefore, during the relevant period of employment, Defendants willfully failed to pay Plaintiff overtime wages at the rate of time and one-half her regular rate for every hour that she worked in excess of 40, in violation of the FLSA, says the complaint. Plaintiff MADELINE BERRIOS was employed by Defendants as a full-time non-exempt employee from approximately January 28, 2018 to March 27, 2019. YALAHA BAKERY LLC is a Florida corporation, having place of business in Lake County, Florida.[BN] The Plaintiff is represented by: Zandro E. Palma, Esq. ZANDRO E. PALMA, P.A. 9100 S. Dadeland Blvd., Suite 1500 Miami, FL 33156 Phone: (305) 446-1500 Facsimile: (305) 446-1502 Email: zep@thepalmalawgroup.com ZESTFINANCE INC: Faces Turner et al. Suit over Usurious Loans ------------------------------------------------------------- A class action complaint has been filed against ZestFinance, Inc., BlueChip Financial, doing business as Spotloan, and Douglas Merrill for violations of state and federal laws for the usurious interest and fees they charged to their borrowers. The is captioned DIANNE TURNER, LULA WILLIAMS, RENEE GALLOWAY, MARKETA BASS, JOHN GLATT, GWENDOLYN BECK, ANASTASIA SHERMAN, SHEILA BURNS, STANIE HAGGINS, KEISHA HAMM, DAVID HAWKINS, SHEILA SIMMONS, FAITH THOMAS, DASHAWN HUNTER, TONEKIA SHOWELL, SONJI GRANDY, REGINALD JONES, AND SUSIE ALLEN, individually and on behalf of all others similarly situated, Plaintiffs, v. ZESTFINANCE, INC., BLUECHIP FINANCIAL d/b/a Spotloan, and DOUGLAS MERRILL, Defendants, Case No. 3:19-cv-00293-REP (E.D. Va., April 17, 2019). Plaintiffs allege that Defendants are engaged in rent-a-tribe scheme to make online short-term loans (commonly called "payday loans") that carry triple-digit interest rates, often exceeding 400%. In a rent-a-tribe scheme, the payday lender--which does most of its lending over the internet--affiliates with a Native American tribe to attempt to insulate itself from federal and state law by piggy-backing on the tribe's sovereign legal status and its general immunity from suit under federal and state laws. In this case, non-tribal entities ZestFinance and Douglas Merrill provided the capital, marketing, underwriting, and other resources for BlueChip Financial dba Spotloan ("BlueChip"), a purportedly tribal entity in North Dakota that makes usurious loans to persons located throughout the United States. Accordingly, Plaintiffs, on behalf of themselves and the class members, seek to recover damages and penalties under state and federal law. ZestFinance, Inc. is a Delaware corporation headquartered in Los Angeles, California. BlueChip Financial dba Spotloan is a purportedly tribal corporation located in Belcourt, North Dakota, and incorporated under the laws of the Turtle Mountain Band of Chippewa Indians. [BN] The Plaintiffs are represented by: Kristi C. Kelly, Esq. Andrew J. Guzzo, Esq. Casey S. Nash, Esq. KELLY GUZZO, PLC 3925 Chain Bridge Road, Suite 202 Fairfax, VA 22030 Telephone: (703) 424-7572 Facsimile: (703) 591-0167 E-mail: kkelly@kellyguzzo.com aguzzo@kellyguzzo.com asey@kellyguzzo.com - and - Leonard A. Bennett, Esq. Elizabeth W. Hanes, Esq. Craig C. Marchiando, Esq. CONSUMER LITIGATION ASSOCIATES, P.C. 763 J. Clyde Morris Boulevard, Suite 1-A Newport News, VA 23601 Telephone: (757) 930-3660 Facsimile: (757) 930-3662 E-mail: lenbennett@clalegal.com elizabeth@clalegal.com craig@clalegal.com - and - E. Michelle Drake, Esq. John G. Albanese, Esq. BERGER & MONTAGUE, P.C. 43 SE Main Street, Suite 505 Minneapolis, MN 55414 Telephone: (612) 594-5999 Facsimile: (612) 584-4470 E-mail: emdrake@bm.net jalbanese@bm.net - and - Beth E. Terrell, Esq. Jennifer Rust Murray, Esq. Elizabeth A. Adams, Esq. TERRELL MARSHALL LAW GROUP PLLC 936 North 34th Street, Suite 300 Seattle, WA 98103 Telephone: (206) 816-6603 Facsimile: (206) 319-5450 E-mail: bterrell@terrellmarshall.com jmurray@terrellmarshall.com eadams@terrellmarshall.com - and - Matthew Wessler, Esq. GUPTA WESSLER PLLC 1735 20th Street, NW Washington, DC 20009 Telephone: (202) 888-1741 Facsimile: (202) 888-7792 E-mail: matt@guptawessler.com ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2019. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. 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 ***