/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/190521.mbx C L A S S A C T I O N R E P O R T E R Tuesday, May 21, 2019, Vol. 21, No. 101 Headlines 3M COMPANY: Cousino Sues over Defective Combat Arms Earplugs ADT LLC: Fitzhenry Sues Over Unauthorized Pre-Recorded Calls ALABAMA: Sutton Files Civil Rights Class Action ALISAL UNION: Bid to Dismiss Suit on Blood Test Needles Reuse Nixed ALLSTATE CORP: Seeks Dismissal of Stacking Benefits Class Action AMYRIS INC: Schall Law Firm Files Securities Fraud Class Suit APPLE INC: iPhone Users Sue Over Defective Audio APPLIED UNDERWRITERS: Leave to Refile Class Certification Bid Nixed ATLANTIC LOTTERY: Borden Ladner Attorney Discusses Court Ruling AUBURN MAIN JAIL: Footage Released After $1.4MM Lawsuit Settlement BILLINGS, MO: Appeals Class Action Status of Residents' Suit BOEING CO: Schall Law Firm Files Securities Fraud Class Suit BOEING CO: Thornton Law Firm Probing Securities Laws Violations BRUNSWICK COUNTY: D.R. Horton Files Class Suit Over Water Fees CALIFORNIA PROTECTION: Blumenthal Files Suit for Security Guards CALIFORNIA: More Women Prison Workers Come Forward in New Suit CAPITAL OF HARRISBURG: Epperson Suit May Proceed in Forma Pauperis CAPTAINS HOUSE: Andrews Suit Alleges ADA Violation CAPTAINS MANOR: Andrews Asserts Breach of Disabilities Act CHEETAH MOBILE: Masterson Class Action Voluntarily Dismissed CHEETAH MOBILE: Still Defends Marcu Class Action in New York CHINA ZENIX: Continues to Defend New Jersey Class Action COLGATE-PALMOLIVE: ERISA Class Suit in New York Still Ongoing CONAGRA BRANDS: Lieff Cabraser Files Securities Fraud Class Action CORRECTIONS CORP: Tenn. Shareholder Class Action Certified CROTHALL LAUNDRY: Does not Provide Rest Periods, Villacana Says DAVITA INC: Kahn Swick Probing Securities Law Violations DETROIT, MI: ACLU Files Class Action Over Bail System DOLLAR GENERAL: Class Action Over Obsolete Motor Oils Certified DR. JAMES GOYDOS: Facing 160 Charges in Class Action Suit FALLSBURG, NY: Pere Files Tort Class Suit in New York FANNIE MAE: Baltimore Files Major Antitrust Lawsuit FERDINAND MARCOS: Martial Law Victims Challenge Lawyers' Fees FIAT CHRYSLER: Car Owners Get $3K in 3.0L Ecodiesel Settlement FIRST HAWAIIAN: Final Approval in Suit v. Unit Set for Aug. 6 FLORIDA: 7th Cir. Affirms Dismissal of PDN Services Suit FORD MOTOR: Drake Sues Over Inaccurate Fuel Economy Ratings FRANKLIN RESOURCES: Agreement in Fernandez-Cryer Suit Pending FTD COMPANIES: Figueroa Alleges Violation Under ADA FTS INTERNATIONAL: Hagens Berman Files Securities Class Suit GEICO GENERAL: 11th Cir. Flips Summary Judgment in A&M Suit GENERAL MOTORS: Corvette Owner Sues Over Defective Wheels GLEN MILLS: Former Students File Class Action Over Abuse GLOBAL BROKERAGE: Judge Dismisses Securities Class Action GREEN TREE INN: Knowles Asserts Breach of ADA in Illinois GRIMMWAY ENTERPRISES: Carrillo Files Class Suit in Calif. Ct. HEALTHCARE SERVICES: Kirby McInerney Files Securities Fraud Suit HELIUS MEDICAL: Pomerantz Law Firm Investigates Securities Claims INTEL CORP: Preliminary Settlement Approval Hearing This Month INTEL CORP: Still Defends Security Vulnerabilities-Related Suits IOOF HOLDINGS: Faces Shareholder Class Action in New South Wales JONES DAY: Responds to Gender Discrimination Class Action KERN RIDGE: Carrillo Files Class Suit in Calif. Ct. LA CARETTA: Diners File Class Action Lawsuit Over Norovirus LET'S EAT OUT: Settlement in Cope Labor Suit Has Prelim Approval LION BIOTECH: Allocation Plan of Net Rabkin Settlement Fund Granted LION BIOTECH: Rabkin Securities Suit Settlement Has Final Approval LOGMEIN INC: Continues to Defend Wasson Class Suit M.J. BROTHERS: Hearing on Rodriguez Deal Prelim Approval Vacated MAGNUM REAL ESTATE: Fischler Asserts Breach of ADA MARKEL CORP: Reveals Internal Review Findings Amid Class Action MATTEL INC: Continues to Defend Calif. Consolidated Class Suit MATTEL INC: Faces Class Suits Related to Fisher-Price Sleeper MATTEL INC: Wyatt Class Action Ongoing MDL 2286: Reconsideration of Arbitration Order in TCPA Suit Denied MID-CENTURY INSURANCE: Halford Files Insurance-related Class Action MULTICARE HEALTH: Cadiz Denied Leave to Proceed in Forma Pauperis NABRIVA THERAPEUTICS: Schall Law Firm Files Securities Fraud Suit NATIONAL IMAGING: 3d Cir. Affirms Dismissal of Mauthe TCPA Suit NCAA: Grant-in-Aid Cap Antitrust Suit Settlement/Fee Award Affirmed NEW ENGLAND FITNESS: Summary Judgment in Kauffman Suit Reversed NEW JERSEY: Court Narrows Claims in Special Education Suit NEW YORK WHEEL: Gilbane Building Co Files Class Suit in New York NIO INC: Robbins Arroyo Files Securities Fraud Class Suit NORTHEAST ILLINOIS REGIONAL: Cary Hits Illegal Discharge NORTHLAND GROUP: George Files FDCPA Suit in North Carolina ONECOIN LTD: Silver Miller Files Class Suit Over Pyramid Scheme OVERHILL FARMS: Zamora Labor Suit Removed to C.D. Cal. P.F. CHANG'S: Proskauer Rose Attorneys Discuss Court Ruling PARTS EXPRESS: Figueroa Asserts Breach of Disabilities Act PERSONALIZATIONMALL.COM: Figueroa Files Class Suit Under ADA PHILADELPHIA, PA: Ex-Mayor Files Class Suit Over Tax Increases PONZIOS RD: Summary Judgment Bid in Casco Wage Suit Partly Granted QUIXOTE VENTURES: Pa. Super. Affirms Summary Judgment in Klein Suit ROBIN INDUSTRIES: Byerly Seeks Overtime Pay for Off-the-Clock Work RYB EDUCATION: Consolidated Qian & Wang Suit Voluntarily Dismissed RYB EDUCATION: Qian Class Action Remains Stayed RYB EDUCATION: Says Zhang Class Suit in Preliminary Stages SAN FRANCISCO, CA: Filing of 2nd Amended Lil' Man Suit Denied STATE FARM: Court Dismisses Vang Suit without Prejudice TELUS COMMS: Blake Cassels Attorneys Discuss Court Ruling TELUS COMMS: Davies Ward Attorneys Discuss Court Ruling TFI INT'L: Wins Court OK of $4.74MM Settlement in Flores FLSA Suit TOYOTA MOTOR: Class Action Over Camry Air Con Smell Certified TRICOR AMERICA: Cal. App. Affirms Arbitration Bid Denial in Velarde TUOLUMNE COUNTY, CA: $450K Deal in Ferzich FLSA Suit Has Approval U.S. XPRESS: Robbins Arroyo Files Securities Fraud Class Suit UBER: Glasgo Sues Over Nuisance Telemarketing Practices UBER: Has $132MM Earmarked for Settling Drivers' Suits VALVE SOFT: Quinault Nation Sues Over CS:GO Skins Betting VANDA PHARMACEUTICALS: Kuznicki Law Files Securities Fraud Suit VI DEVELOPMENT: Cuaya Sues Over Unpaid Minimum, Overtime Wages VIRGINIA BEACH: Bid to Decertify Class in Andreana Suit Denied VIRGINIA TAN: Class Suit Over $30MM Ponzi Scheme Certified VISA INC: Renewed Bid for Class Cert. in EMV Chip Suit Pending VISALUS INC: Faces $925MM Damages in Robocall Class Action WAL-MART ASSOCIATES: Chaves Hits Discrimination, Illegal Discharge WALMART: Pontiac Retirees Set to Get Settlement Payout WEINSTEIN CO: Court Narrows Claims in 1st Amended Geiss RICO Suit WINN MGMT: Uncashed Funds Distribution to Legal Aid at Work Granted ZALE DELAWARE: Leos Suit Removed to E.D. California ZILLOW GROUP: Faces Legal Action Over Co-Marketing Program [*] Carlton Says Class Action Defense Spending Continues to Rise [*] U.S. Chamber Institute Calls for TCPA Class Action Reform ********* 3M COMPANY: Cousino Sues over Defective Combat Arms Earplugs ------------------------------------------------------------ The case, BRADLY COUSINO, the Plaintiff, vs. 3M COMPANY, the Defendant, Case No. 0:19-cv-01160 (D. Minn., May 1, 2019), seeks to hold 3M liable for hearing loss or damage Plaintiff 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: Yvonne M. Flaherty, Esq. LOCKRIDGE GRINDAL NAUEN P.L.L.P. 100 Washington Avenue South, Suite 2200 Minneapolis, MN 55401 Telephone: (612) 339-6900 E-mail: ymflaherty@locklaw.com - and - Roberto Martinez, Esq. Francisco R. Maderal, 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 ADT LLC: Fitzhenry Sues Over Unauthorized Pre-Recorded Calls ------------------------------------------------------------ Mark Fitzhenry, individually and on behalf of all others similarly situated, Plaintiff, v. ADT LLC, a Delaware company, and SAFE STREETS USA LLC, a Delaware company, Defendants, Case No. 9:19-cv-80626-DMM (S.D. Fla., May 10, 2019) seeks to stop Defendants from making unauthorized pre-recorded voice message calls promoting ADT's home alarm services, and to obtain redress for all persons similarly injured by its conduct. This case is brought to enforce the consumer-privacy provisions of the Telephone Consumer Protection Act ("TCPA"), a federal statute enacted in 1991 in response to widespread public outrage about the proliferation of intrusive, nuisance telemarketing practices. It challenges Defendants' practice of making unauthorized pre-recorded voice message calls to consumers promoting ADT's home alarm services. ADT's contact with the general public is limited, and it instead relies on a series of "Authorized Dealers," such as Safe Streets to offer its goods and services. To increase its sales, and as part of a general cold-call based marketing scheme, Safe Street markets ADT's services using pre-recorded voice message calls to consumers, says the complaint. Plaintiff Fitzhenry is a South Carolina resident. ADT offers home alarm services.[BN] The Plaintiff is represented by: Avi R. Kaufman, Esq. Rachel E. Kaufman, Esq. KAUFMAN P.A. 400 NW 26th Street Miami, FL 33127 Phone: (305) 469-5881 Email: kaufman@kaufmanpa.com rachel@kaufmanpa.com ALABAMA: Sutton Files Civil Rights Class Action ----------------------------------------------- A class action lawsuit has been filed against Steve Marshall. The case is styled as Lena Sutton, on behalf of herself and those similarly situated, Plaintiff v. Steve Marshall, in his official capacity as the Attorney General of the State of Alabama, Defendant, Case No. 4:19-cv-00660-SGC (N.D. Ala, May 1, 2019). The lawsuit arises under Civil Rights Act. Steve Marshall is the Attorney General of the State of Alabama.[BN] The Plaintiff is represented by: Allan L Armstrong, Esq. ARMSTRONG LAW CENTER LLC 2820 Columbiana Road Birmingham, AL 35216 Tel: (205) 205-1529 Fax: (866) 601-2692 Email: armstrong.atty@gmail.com - and – Brian M Clark, Esq. WIGGINS CHILDS PANTAZIS FISHER & GOLDFARB The Kress Building 301 19th Street North Birmingham, AL 35203-3204 Tel: (205) 314-0500 Fax: (205) 254-1500 Email: Bclark@wigginschilds.com - and – Darrell L Cartwright, Esq. CARTWRIGHT LAW CORPORATION PO Box 383204 Birmingham, AL 35238-3204 Tel: (205) 222-5900 Fax: (205) 823-5374 Email: dcartwright@gmail.com ALISAL UNION: Bid to Dismiss Suit on Blood Test Needles Reuse Nixed ------------------------------------------------------------------- In the case, MARIO V., et al., Plaintiffs, v. HENRY ARMENTA, et al., Defendants, Case No. 18-cv-00041-BLF (C.D. Cal.), Judge Beth Labson Freeman of the U.S. District Court for the Northern District of California, San Jose Division, denied the separate motions of Armenta and Diana Garcia to dismiss the operative second amended complaint ("SAC") for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). The putative class action arises from blood sugar testing done on students at Dr. Oscar F. Loya Elementary School without the knowledge or consent of the students' parents. In the original complaint, the Plaintiffs -- comprising the students who were tested and their parents -- asserted claims under 42 U.S.C. Section 1983 and state law against the teacher who performed the testing, Armenta; the school principal, Garcia; the school; and the Alisal Union School District. All the Defendants filed Rule 12(b) motions to dismiss. The motions were granted in part and denied in part, after which the Plaintiffs filed a first amended complaint and later, by stipulation, the operative SAC. In the SAC, the Plaintiffs have dropped all but Claims 1 and 2 of the original compliant, both asserted under Section 1983. Claim 1, which is asserted against both Armenta and Garcia, asserts a deprivation of liberty interests protected by the Fourteenth Amendment, including parents' rights to make medical decisions regarding their children and students' rights to be protected from harm while at school. Claim 2, which is asserted only against Armenta, asserts a deprivation of privacy interests protected by the Fourth Amendment. Armenta and Garcia move to dismiss those claims under Rule 12(b)(6). They both brought prior Rule 12(b) motions to dismiss. Judge Freeman finds that Armenta could have, but did not, assert that Claims 1 and 2 fail to state a claim under Rule 12(b)(6). Instead, Armenta attacked only the state law claims in his first Rule 12(b)(6) motion. Garcia's first motion did argue failure to state a claim with respect to Claim 1, but not on the grounds currently asserted. In her first motion, Garcia argued that Claim 1 was deficient because it did not allege precisely when Garcia learned of Armenta's conduct. The Court denied Garcia's motion to dismiss Claim 1 on that basis. Garcia now raises new grounds for dismissal of Claim 1, which she could have raised in her first motion. The Judge declines to exercise its discretion to consider the Defendants' successive Rule 12(b)(6) motions. The Plaintiffs filed their original complaint more than a year ago, and the Defendants' first motions to dismiss were litigated more than eight months ago. The issues now raised by Defendants could have, and under the Federal Rules should have, been litigated then. The Defendants have not offered any explanation as to why they failed to raise their current failure-to-state-a-claim defenses in their first motions to dismiss, or why the Plaintiffs should be prejudiced by potential delay in litigating those defenses at this late date. Accordingly, Judge Freeman denied the Defendants' motions to dismiss the SAC. A full-text copy of the Court's April 17, 2019 Order is available at https://is.gd/yHliQS from Leagle.com. Mario V., Geraldine Julie B., I.G.V., A Minor by and through their Guardian Ad Litem, Y.G., A Minor by and through their Guardian Ad Litem, O.D.G., A Minor by and through their Guardian Ad Litem, Christina G., Oscar G., Alicia P., Hugo P. & A.P.H., A Minor by and through their Guardian Ad Litem, Plaintiffs, represented by Charles A. Bonner -- cbonner799@aol.com -- Law Offices of Bonner & Bonner & Adam Cabral Bonner -- cabral@bonnerlaw.com -- Law Offices of Bonner & Bonner. Henry Amenta, Defendant, represented by Christopher Edward Panetta -- CPanetta@FentonKeller.com -- Fenton & Keller A Professional Corporation. Diana Garcia, Defendant, represented by Eric James Bengtson -- ebengtson@davisyounglaw.com -- Davis and Young, APLC. ALLSTATE CORP: Seeks Dismissal of Stacking Benefits Class Action ---------------------------------------------------------------- Max Mitchell, writing for Law.com, reports that in their first salvo against a series of proposed class action lawsuits over rejected stacking benefits, insurance companies have contested whether the "seismic" decision by the Pennsylvania Supreme Court that led to those lawsuits can be applied retroactively. Both Allstate and the Government Employees INsunrace Company (GEICO) in March filed motions seeking to dismiss the class actions that were brought against them in the wake of the state Supreme Court's decision in Gallagher v. Geico. That ruling determined that using household exclusions to bar recovery of stacked benefits violated the Motor Vehicle Financial Responsibility Law because the clauses acted as "de facto waiver[s]" for the coverage. The proposed class actions against Geico and Allstate, as well as three other carriers, hinge on arguments that the insurance companies improperly used household exclusions to bar stacked coverage as far back as 1990. But the companies, in motions to dismiss filed recently, are pushing back, arguing that benefits denied before the recent Gallagher decision were done so based on established court precedent that specifically allowed the practice. "In issuing its policies and setting these premiums, Geico Casualty relied on [Erie Insurance Exchange v.] Baker and the well-settled law in Pennsylvania validating the household vehicle exclusion," Geico contended. "To now hold Geico Casualty retroactively to the new rule set out in Gallagher would require Geico Casualty to 'pay on a risk it did not knowingly insure, or collect a premium to underwrite.'" In a motion to dismiss filed March 28, Allstate made similar arguments. "During the time period relevant to the claims alleged in the complaint, Gallagher was not the law," Allstate contended. "On the contrary, the argument that household exclusions violate the MVFRL had been consistently rejected by the Pennsylvania Supreme Court, the Third Circuit and other Pennsylvania courts." In making their arguments, the carriers pointed to Baker, which was decided in 2009, and Geico v. Ayers, which was decided in 2011, both of which upheld the use of the household exclusion. The decision in Gallagher, which the justices issued in January, split with those rulings, but contended that its holding did not go against principles of stare decisis because the court split evenly in Ayers and the holding in Baker was a plurality. Regardless of stare decisis issues, the defendants argued, the decisions amounted to binding precedent, and the new holding amounted to a rule change that should only affect litigation going forward. The defendants further cited language in the Gallagher decision that they contend indicates that the ruling was meant to be read prospectively. However, in a response filed in late March in the action against Geico, lead plaintiff Francis Butta contended that Gallagher was not a rule change, but rather was simply the first time a majority of the court decided the issue. "The decision in Gallagher merely interprets the stacking provisions of the MVFRL vis a vis the household exclusion," Butta said in the March 22 filing. "No new legal principal has been established." Butta further argued that, in the wake of additional Supreme Court precedent, remediation for injured parties, rather than cost containment for the insurance industry, should be viewed as the overriding consideration regarding the applicability of the MVFRL. Along with Geico and Allstate, Donegal Mutual Insurance Co., Pennsylvania National Mutual Insurance Co. and USAA Casualty Insurance Co. are also facing proposed class actions over their rejection of stacking benefits. USAA and Penn National have not yet filed substantive motions, and Donegal filed a motion last month seeking to have the case transferred from the Philadelphia Court of Common Pleas to the Lancaster County Court of Common Pleas. In an emailed statement, Peter Speaker of Thomas, Thomas & Hafer, who is representing Pennsylvania National Mutual Insurance Co., said there is broad language in the Gallagher opinion, but not all of that language speaks to the true holding in the case. "The court was very careful to explain that it was deciding only the precise issue before the court, which was whether the exclusion was valid in a case where one insurance company covered all the vehicles under stacked policies but unilaterally decided to put them on separate policies. And the court was careful to explain that the decision was not disturbing any of the Supreme Court's prior decisions, several of which have upheld the household vehicle exclusion and similar exclusions," Speaker said. "So, the true scope remains to be determined." Jim Haggerty, Esq. -- jhaggerty@hgsklawyers.com -- of Haggerty, Goldberg, Schleifer & Kupersmith and Scott Cooper, Esq. of Schmidt Kramer are representing the plaintiffs. Haggerty did not return a call for comment. Kymberly Kochis, Esq. -- kymberlykochis@eversheds-sutherland.com -- of Eversheds Sutherland is representing Geico. Joseph Mayers, Esq. -- jmayers@themayersfirm.com -- of The Mayers Firm is representing Donegal Mutual Insurance. Mark Levin, Esq. -- LEVINMJ@BALLARDSPAHR.COM -- of Ballard Spahr is representing Allstate. Kochis, Mayers and Levin each did not return a call for comment April 3 afternoon. When reached by phone, Jay Williams, Esq. -- jwilliams@schiffhardin.com -- of Schiff Hardin, who is representing USAA, said, "No comment." [GN] AMYRIS INC: Schall Law Firm Files Securities Fraud Class Suit ------------------------------------------------------------- The Schall Law Firm, a national shareholder rights litigation firm, announces the filing of a class action lawsuit against Amyris, Inc. (NASDAQ: AMRS) for violations of Sec. 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder by the U.S. Securities and Exchange Commission. Investors who purchased the Company's shares between March 15, 2018 and March 19, 2019, inclusive (the "Class Period"), are encouraged to contact the firm before June 3, 2019. We also encourage you to contact Brian Schall, or Sherin Mahdavian, of the Schall Law Firm, 1880 Century Park East, Suite 404, Los Angeles, CA 90067, at 424-303-1964, to discuss your rights free of charge. You can also reach us through the firm's website at www.schallfirm.com, or by email at brian@schallfirm.com. The class, in this case, has not yet been certified, and until certification occurs, you are not represented by an attorney. If you choose to take no action, you can remain an absent class member. According to the Complaint, the Company made false and misleading statements to the market. Amyris did not have appropriate resources to accurately track and account transactions. The Company in fact suffered from a material weakness of internal controls over financial reporting. This weakness left the Company unable to file its Annual Report in a timely manner. Based on these facts, the Company's public statements were false and materially misleading throughout the class period. When the market learned the truth about Amyris, investors suffered damages. Join the case to recover your losses. Contact: Brian Schall, Esq. Sherin Mahdavian, Esq. The Schall Law Firm 1880 Century Park East, Suite 404 Los Angeles, CA 90067 Tel: 310-301-3335 Website: www.schallfirm.com Email: info@schallfirm.com brian@schallfirm.com [GN] APPLE INC: iPhone Users Sue Over Defective Audio ------------------------------------------------ Brianna Castelli, Karen Lyvers and Matthew White, individually, and on behalf of all others similarly situated, Plaintiff, v. Apple Inc., Defendant, Case No. 19-cv-03026, (N.D. Ill., May 3, 2019) seeks all damages and appropriate injunctive and/or declaratory relief for violations of the Magnuson-Moss Warranty Act and the Illinois Consumer Fraud and Deceptive Practices Act. Apple is engaged in the manufacture, sale and distribution of cell phones and related equipment and services throughout the world with a large share of its business done in California. Plaintiffs purchased iPhone 7 units whose speaker button "greyed out" and became inoperable only after purchase. Since then, all audio function ceased including making or receiving calls. The Apple store refused to honor its warranty. [BN] Plaintiff is represented by: Gregory F. Coleman, Esq. Adam A. Edwards, Esq. Rachel Soffin, Esq. William A. Ladnier, Esq. GREG COLEMAN LAW PC 800 S. Gay Street, Suite 1100 Knoxville, TN 37929 Telephone: (865) 247-0080 Facsimile: (865) 522-0049 Email: greg@gregcolemanlaw.com adam@gregcolemanlaw.com rachel@gregcolemanlaw.com will@gregcolemanlaw.co - and - Hassan A. Zavareei, Esq. Andrea R. Gold, Esq. TYCKO & ZAVAREEI LLP 1828 L Street, NW, Suite 1000 Washington, DC 20036 Telephone: (202) 973-0900 Facsimile: (202) 973-0950 Email: hzavareei@tzlegal.com agold@tzlegal.com - and - Annick Persinger, Esq. TYCKO & ZAVAREEI LLP 1970 Broadway, Suite 1070 Oakland, CA 94612 Telephone: (510) 254-6808 Facsimile: (202) 973-0950 Email: apersinger@tzlegal.com - and - Nick Suciu III, Esq. BARBAT, MANSOUR & SUCIU PLLC 1644 Bracken Rd. Bloomfield Hills, MI 48302 Tel: (313) 303-3472 Email: nicksuciu@bmslawyers.com APPLIED UNDERWRITERS: Leave to Refile Class Certification Bid Nixed ------------------------------------------------------------------- In the cases, SHASTA LINEN SUPPLY, INC., on behalf of itself and all others similarly situated, Plaintiff, v. APPLIED UNDERWRITERS, INC.; APPLIED UNDERWRITERS CAPTIVE RISK ASSURANCE COMPANY, INC.; CALIFORNIA INSURANCE COMPANY; and APPLIED RISK SERVICES, INC., Defendants, PET FOOD EXPRESS LTD, and ALPHA POLISHING, INC. d/b/a GENERAL PLATING CO., on behalf of themselves and all others similarly situated, Plaintiffs, v. APPLIED UNERWRITERS, INC.; APPLIED UNDERWRITERS CAPTIVE RISK ASSURANCE COMPANY, INC.; CALIFORNIA INSURANCE COMPANY, INC., and APPLIED RISK SERVICES, INC., Defendants, Case Nos. 2:16-cv-158 WBS AC, 2:16-cv-1211 WBS AC (E.D. Cal.), Judge William B. Shubb of the U.S. District Court for the Eastern District of California denied Alpha Polishing's Request for Leave to File a Renewed Motion for Class Certification. Plaintiffs Shasta Linen, Pet Food, and Alpha Polishing initiated these representative actions against Applied; Applied Underwriters Captive Risk Assurance, Inc.; Applied Risk Services, Inc. and California Insurance Co., Inc., alleging that the Defendants fraudulently marketed and sold workers' compensation insurance programs to California employers in violation of state and federal law. After consolidating the two actions for pre-trial purposes only, the Court denied the Plaintiffs' motion for class certification. The Plaintiffs then filed an ex parte application requesting a status conference. On April 15, 2019, the Court held a status conference, which addressed the following issues: (1) whether Plaintiff Alpha Polishing should be granted leave to file a renewed motion for class certification; (2) whether the Plaintiffs should be allowed to communicate with putative class members to develop additional evidence in support of such a motion; (3) possible modifications to the scheduling order; (4) the possibility of separate trials; and (5) whether the Court should set a settlement conference. Alpha Polishing argues that the Court should allow a renewed motion for class certification under Federal Rule of Civil Procedure 23 because it has proposed a narrower class definition that it believes resolves many of the Court's concerns regarding certification. Alpha Polishing's newly proposed class would consist of all California participants in the Defendants' insurance programs that paid more under the Defendants' Reinsurance Participation Agreement than they would have under guaranteed cost workers' compensation insurance policies issued by California Insurance Co. Alpha Polishing would seek class certification only on its claim under the unlawful prong of California's Unfair Competition Law. Judge Shubb finds that Alpha Polishing has not provided the Court with any explanation for why it could not have pursued this narrowed class definition in the initial motion for class certification. The Plaintiffs are pursuing certification in their New York putative class action of essentially the same class as the new one it now seeks to certify in the case, albeit under the state law of a different jurisdiction. Allowing Alpha Polishing leave to bring arguments they could have raised earlier would place an undue burden on the Defendants and waste the Court's limited resources. Moreover, the newly proposed class does not resolve the Court's concerns identified in the prior order denying class certification. In that prior order, it denied the Plaintiffs' motion for class certification on superiority grounds under Rule 23(b)(3). The Court found, in part, that each class member had a significant interest in controlling its own litigation due to the large damages at issue in this dispute. That finding remains the same, even in the context of the newly proposed class. Where over 60% of potential class members have a significant monetary interest in controlling their individual actions, a class action is not a superior means of resolving this dispute. Alpha Polishing provides the court with no authority in support of this assertion. Lastly, the Judge believes that the newly defined class presents many of the same manageability concerns that the Court confronted in its previous order. The newly proposed class definition excludes all putative members who have pursued individual actions, even those with claims outside of the scope of the proposed class. The Judge would still have to determine which class members are then excluded from the present action and craft an accurate and appropriate class notice taking those findings into account. Further, the existence of these other actions would still remain a relevant factor in that there is still a risk that the putative class action could result in a disposition inconsistent with those other actions. Basedon the foregoing, Judge Shubb denied Alpha Polishing's Request for Leave to File a Renewed Motion for Class Certification. Because he denied Alpha Polishing leave to file a renewed motion for class certification, the Judge denied as moot the Plaintiffs' request to communicate with the putative class members to develop additional evidence in support of the Motion. The cases captioned Shasta Linen Supply, Inc. v. Applied Underwriters, Inc., Case No. 2:16-cv-00158-WBS-AC and Pet Food Express Ltd. v. Applied Underwriters, Inc., Case No. 2:16-cv-0211-WBS-AC are consolidated for the purposes of trial. Even though some evidence at trial may not be admissible as to all the Plaintiffs, there is no risk of jury confusion or prejudice because the cases will be tried as a bench trial. These actions are referred to the court's Voluntary Dispute Resolution Program ("VDRP"). Within 14 days of the Order, the parties will contact the Court's VDRP administrator, Sujean Park, at (916) 930-4278 or SPark@caed.uscourts.gov, to start the process of selecting an appropriate neutral. The parties will carefully review and comply with Local Rule 271, which outlines the specifications and requirements of the VDRP. The parties will complete the VDRP session no later than June 14, 2019. Any party that objects to the referral to the VDRP will file its objections within seven days of the Order. Such objections will clearly outline why that party believes that the action is not appropriate for referral to the VDRP. A full-text copy of the Court's April 17, 2019 Order is available at https://is.gd/zCwYbb from Leagle.com. Pet Food Express Ltd., a California corporation and all those similarly situated, Plaintiff, represented by Glen L. Abramson -- -- Berger Montague PC, pro hac vice, John Douglas Moore -- jmoore@hennetzel.com -- Law Office of John Douglas Moore, Kevin Page, Cummings & Page, LLP, pro hac vice, Peter R. Kahana -- pkahana@bm.net -- Berger Montague, pro hac vice, Steven M. O'Connor -- soconnor@oconnorlawfirm.com -- O'Connor Redd, LLP, pro hac vice & Yechiel Michael Twersky -- mitwersky@bm.net -- Berger Montague, pro hac vice. Alpha Polishing, Inc., Doing business as, Plaintiff, represented by Kevin Page, Cummings & Page, LLP & Glen L. Abramson, Berger Montague PC, pro hac vice. Applied Underwriters, Inc., Defendant, represented by Spencer Y. Kook -- skook@mail.hinshawlaw.com -- Hinshaw & Culbertson LLP, Travis R. Wall -- twall@mail.hinshawlaw.com -- Hinshaw & Culbertson LLP, Amanda L. Morgan, DLA Piper LLP & Shand Scott Stephens -- shand.stephens@dlapiper.com -- DLA Piper LLP. Applied Underwriters Captive Risk Assurance, Inc., Defendant, represented by Shand Scott Stephens, DLA Piper LLP, Spencer Y. Kook, Hinshaw & Culbertson LLP & Travis R. Wall, Hinshaw & Culbertson LLP. California Insurance Company, Inc., Defendant, represented by Spencer Y. Kook, Hinshaw & Culbertson LLP & Travis R. Wall, Hinshaw & Culbertson LLP. Applied Risk Services, Inc., Applied Underwriters Captive Risk Assurance Company, Inc. & California Insurance Company, Defendants, represented by Jeanette Barzelay, DLA Piper LLP, Travis R. Wall, Hinshaw & Culbertson LLP, Amanda L. Morgan, DLA Piper LLP & Shand Scott Stephens, DLA Piper LLP. Applied Underwriters Captive Risk Assurance, Inc. & California Insurance Company, Inc., Counter Claimants, represented by Spencer Y. Kook, Hinshaw & Culbertson LLP & Travis R. Wall, Hinshaw & Culbertson LLP. Applied Underwriters, Inc., Counter Claimant, represented by Jeanette Barzelay, DLA Piper LLP, Spencer Y. Kook, Hinshaw & Culbertson LLP & Travis R. Wall, Hinshaw & Culbertson LLP. Pet Food Express Ltd., a California corporation and all those similarly situated, Counter Defendant, represented by Glen L. Abramson, Berger Montague PC, pro hac vice, John Douglas Moore, Law Office of John Douglas Moore, Kevin Page, Cummings & Page, LLP, pro hac vice, Peter R. Kahana, Berger Montague, pro hac vice, Steven M. O'Connor, O'Connor Redd, LLP, pro hac vice & Yechiel Michael Twersky, Berger Montague, pro hac vice. Applied Underwriters Captive Risk Assurance Company, Inc. & California Insurance Company, Counter Claimants, represented by Travis R. Wall, Hinshaw & Culbertson LLP. Alpha Polishing, Inc., Counter Defendant, represented by John Douglas Moore, Law Office of John Douglas Moore, Kevin Page, Cummings & Page, LLP & Glen L. Abramson, Berger Montague PC, pro hac vice. ATLANTIC LOTTERY: Borden Ladner Attorney Discusses Court Ruling --------------------------------------------------------------- Martin Abadi, Esq. -- MAbadi@blg.com -- of Borden Ladner Gervais LLP, in an article for Mondaq, reports that writing for the majority of the Newfoundland Court of Appeal, Justice Green has recently provided welcome elucidation of the ever-elusive "waiver of tort" doctrine within the context of class action proceedings. In Atlantic Lottery Corporation Inc. v. Babstock, the Court addressed the intractable debate of whether "waiver of tort" constitutes an independent cause of action or a remedy and, incidentally, whether such determination can be made at the certification stage of a class action without the benefit of a full factual record. In the past, other courts have been reticent to decide the issue at a pleadings or certification stage, without the benefit of a full factual record as it "involves matters of policy that should not be determined at the pleadings stage" (see, for example, Serhan Estate v. Johnson & Johnson, 85 O.R. (3d) 665 (Div. Ct.), leave to appeal to C.A. ref'd Oct. 16, 2006, leave to appeal to S.C.C. ref'd. [2006] S.C.C.A. No. 494). According to the Newfoundland Court of Appeal, the answer is that waiver of tort is a cause of action and — apparently — that no full factual record is needed to make that determination. In Babstock, the claimants alleged that video lottery terminals were deceptive. Among other causes of action, they alleged negligence on the part of the gaming corporation that operated the terminals, but did not claim any specific damages. Instead, they claimed to "waive" the tort of negligence in favour of a claim to "a remedy in restitution", so as to ensure that the appellant Lottery Corporation "should retain no benefit from the breaches pleaded." Additionally, the claimants pleaded waiver of tort as a separate cause of action which, as the Court noted, in itself attracts remedies of constructive trust, disgorgement, and accounting. Justice Green concluded that the application judge did not err in deciding not to strike the claims based on waiver of tort (or, as Justice Green re-labelled them, "claims based on unjust enrichment gained by alleged tortious wrongdoing"), as it was not plain and obvious that such claims could not succeed (the standard under the first requirement of the test for certification). Justice Green pointed out that the waiver of tort analysis "is in some respects affected by terminological and conceptual confusion and inconsistency, not only in the pleadings and in the arguments that have been presented, but also in the case law and academic writings in the area." Accordingly, Justice Green provided the following definitions: "[94] I propose therefore to limit the use of the term restitution to situations where the remedy includes the reversal of a transfer of wealth from the defendant to the claimant. I will use the term disgorgement to describe the remedy that involves the award to the claimant of a benefit acquired by the defendant from a source that does not necessarily include a deprivation to the claimant. The term unjust enrichment can describe any enrichment of the defendant, however that enrichment is derived, and which a court determines to be unjust, thus justifying either a restitutionary or disgorgement remedy." Justice Green further noted that "the law has progressed to the point where it is reasonable to conclude that, depending on proof at trial, a court could find on the facts as pleaded that a claim for disgorgement is actionable . . . . based on unjust enrichment of the appellant as a result of tortious wrongdoing." Such a claim, where it is based on a claim of negligence, does not depend on proof of damage to individual tort victims. Proving a breach of a duty of care, i.e. the "wrong that forms the basis of the tort", is sufficient. Waiver of tort has often been described by legal commentators as an oxymoron. In Babstock, Justice Green concluded that "waiver of tort" "is now a misnomer" causing "much confusion in current jurisprudence on the subject" and that it "does not depend on an artificial concept of "waiver" (i.e. a giving-up of a fully independently-actionable tort in favour of another claim), but on separate wrongful conduct leading not to injury to the claimant but to the unjust acquisition of a benefit." Accordingly, proclaiming that the "time has come to jettison the terminology of waiver of tort", Justice Green effectively moved to recognize waiver of tort as a separate cause of action that allows for a restitutionary or disgorgement remedy where certain defined circumstances apply. [GN] AUBURN MAIN JAIL: Footage Released After $1.4MM Lawsuit Settlement ------------------------------------------------------------------ David Matthews, writing for New York Daily News, reports that a California jail was compelled to release footage of corrections officers beating and tasing a mentally ill inmate after settling a class-action lawsuit for $1.4M. After abuse allegations led to three officials at Auburn Main Jail in Auburn, California getting fired, a class-action lawsuit was filed by 500 inmates filed by civil rights attorney Mark Merin, Esq. -- mark@markmerin.com The jail tried to keep records of the abuse out of public view, but were unsuccessful. A security video released as part of the lawsuit settlement shows guards beating 28-year-old Beau Bangert who was on suicide watch at the time. The video shows Bangert adopting a fighting stance and laughing before guards rush him and knock him into a wall. As two guards hold Bangert's arms and another holds his neck from behind, a fourth guard punches, kicks, and knees the inmate. At another point Bangert is punched and tased while one arm and is neck are held. The guard who punches and kicks Bangert places him in a choke hold several times in the video. As Bangert does not fight back or fall to the ground, four more guards enter the cell and deliver more blows. Finally, the inmate falls to the ground and an officer remarks, "There's blood, be careful." Later in the video Bangert is shown sitting in a safety chair and wearing a white anti-spitting mask as he is medically examined. Afterward he is wheeled back into the room on the chair and the mask is removed while another officer records images of his face. They demonstrated total insensitivity and it was clearly an abusive gang attack on a defenseless individual,' attorney Merin said of Bangert's treatment. 'And it showed absence of training and malevolence on the part of the deputies who participated.' Two deputies, Jeffrey Villaneuva and Robert Madden, and Sergeant Megan Yawa were fired over the abuse allegations. Yawa was accused of filing false reports, but her case was dismissed. Villaneuva and Madden pleaded no contest to felony assault charges. "We brought these alleged misdeeds to your attention when they occurred in 2017, and to continue to be transparent," said Lt. Andrew Scott for the Placer County Sheriff's Office in a video statement. "We wanted to be the first to release these videos to you as well once litigation involving these incidents is over, however some of that litigation is still unresolved." The judge said that since the three criminal cases for the fired officers were over, the video should be released because there were "no ongoing civil cases whose jury pools might be tainted." Bangert will receive $50,000 as part of the class action and received a separate $250,000 settlement. "We are auditing their response to claims of use of force and excessive force, and I think that process will improve the response of the jail personnel to the conduct of inmates," an attorney who worked with Merin said. [GN] BILLINGS, MO: Appeals Class Action Status of Residents' Suit ------------------------------------------------------------ Rob Rogers, writing for Billings Gazette, reports that Billings, Montana attorneys are appealing a district court decision that classified a lawsuit against the city as a class action, a move that opened the suit to thousands of city residents. A ruling in April by Cascade County District Judge Gregory Pinski allowed the suit in Yellowstone County District Court to move forward as a class action lawsuit, which brings in every city resident who paid a franchise fee on their water, wastewater or solid waste disposal bill, a group of almost 35,000 people. The fight started when a group of seven Billings residents sued the city, arguing that the franchise fee was essentially an illegal tax collected by the city and that by charging it, the city violated their rights. Billings started charging franchise fees in 1992; 4% for water and wastewater services, and 5% for solid waste disposal services. The city ended the practice last summer. The class action designation last month moved the lawsuit one step closer to a hearing and, depending on the final ruling, could mean the city will be responsible for compensating nearly 35,000 residents who have been charged franchise fees. The city filed its appeal against the class action designation with state Supreme Court on May 9. [GN] BOEING CO: Schall Law Firm Files Securities Fraud Class Suit ------------------------------------------------------------ The Schall Law Firm, a national shareholder rights litigation firm, on April 10 announced the filing of a class action lawsuit against The Boeing Company ("Boeing" or "the Company") (NYSE: BA) for violations of Secs. 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder by the U.S. Securities and Exchange Commission. Investors who purchased the Company's shares between January 8, 2019 and March 21, 2019, inclusive (the "Class Period"), are encouraged to contact the firm before June 10, 2019. We also encourage you to contact Brian Schall, or Sherin Mahdavian, of the Schall Law Firm, 1880 Century Park East, Suite 404, Los Angeles, CA 90067, at 424-303-1964, to discuss your rights free of charge. You can also reach us through the firm's website at www.schallfirm.com, or by email at brian@schallfirm.com. The class, in this case, has not yet been certified, and until certification occurs, you are not represented by an attorney. If you choose to take no action, you can remain an absent class member. According to the Complaint, the Company made false and misleading statements to the market. Boeing's 737 MAX airplanes were not as safe as past airplanes manufactured by the Company. Boeing attempted to work around these safety deficiencies with engineering "hacks" and "optional" safety add-ons to address concerns. Most airlines did not purchase the safety options offered by the Company. The FAA granted the Company its own oversight and certification of the new Maneuvering Characteristics Augmentation Systems, a conflict of interest based on Boeing's rush to bring the 737 MAX to market. Based on these facts, the Company's public statements were false and materially misleading throughout the class period. When the market learned the truth about Boeing, investors suffered damages. Join the case to recover your losses. The Schall Law Firm -- http://www.schallfirm.com-- represents investors around the world and specializes in securities class action lawsuits and shareholder rights litigation. CONTACT: The Schall Law Firm Brian Schall, Esq., Sherin Mahdavian, Esq., Office: 310-301-3335 Cell: 424-303-1964 info@schallfirm.com [GN] BOEING CO: Thornton Law Firm Probing Securities Laws Violations --------------------------------------------------------------- Boeing shareholders who purchased or acquired Boeing stock (NYSE ticker: BA) between Jan. 1, 2019 and May 10, 2019, and are interested in learning about their potential rights to recover in a securities class action lawsuit pending against Boeing, please email the Thornton Law Firm at shareholder@tenlaw.com, or call 617-531-3933. Thornton Law Firm LLP is investigating a securities class action on behalf of shareholders and investors who purchased the securities of The Boeing Company (NYSE ticker: BA). The investigation involves possible violations of the federal securities laws by Boeing. According to the lawsuit, Boeing prioritized profitability ahead of airplane safety. Boeing may have misled investors about the sustainability of Boeing's core Commercial Airplanes segment by maintaining that the Boeing 737 MAX was a safe airplane. Boeing made these statements all while concealing the full extent of safety problems caused by the placement of larger engines on the 737 MAX that changed the handling characteristics of the 737 MAX from previous models. These handling characteristics included the danger of the increased pitch-up tendencies. These changes required special safety features, some of which Boeing installed only as "extras" or "optional features." As a result of Boeing's alleged misconduct, as the news about Boeing's alleged misconduct was revealed, Boeing's (BA) stock plunged nearly $70 per share, from approximately $440 a share to $372 a share, the complaint alleges. If you purchased or otherwise acquired Boeing stock (BA) between January 1, 2019 and May 10, 2019, you may have a claim for damages. Please: Contact: Thornton Law Firm's shareholder rights team Email: shareholder@tenlaw.com, Phone: 617-531-3933 [GN] BRUNSWICK COUNTY: D.R. Horton Files Class Suit Over Water Fees -------------------------------------------------------------- Johanna Ferebee, writing for Port City Daily, reports that D.R. Horton, a publicly-traded company that calls itself "America's Largest Homebuilder," filed a class-action federal lawsuit against Brunswick County in March. Asking for in excess of $5 million, D.R. Horton claims the county collected illegal water and wastewater fees as a prerequisite to providing utility service at its numerous residential projects. The allegedly illegal fees cut into the company's profits, creating greater expenses, according to the suit. Impact fees Referred to as impact, capacity, capital recovery or system development fees, litigation surrounding the fees among builders and municipalities has increased over the last two years. In fact, D.R. Horton's suit -- filed March 5 in the United States District Court -- is at least the third filed in the Cape Fear region regarding allegedly illegal impact fees. A North Carolina Supreme Court case found impact fees charged to fund future service costs to be unlawful in 2016. Then in 2017, the General Assembly passed House Bill 436. The bill legalized and clarified the fees – now dubbed "system development fees" — under certain conditions. Utility providers can't assess the fees arbitrarily. The fees must be based on a professional analysis, used to recoup capital improvement costs to service new development. Last fiscal year, Brunswick County charged $1,150 in water and $4,000 for wastewater connection for a three-bedroom unit in "capital recovery fees." During that time, the county issued 1,307 residential permits — with new construction valued at $459.1 million — according to its most recent permit report. With five months left in the current fiscal year, the county has already issued 1,475 residential permits as of January. Ann Hardy, Brunswick County's manager, said the county was served about two weeks ago. She said the county intends to defend its stance that the fees were charged lawfully. "We have not yet filed a response," Hardy wrote in an email on March 28. "We will defend the county's position that the county's utility system development fees were appropriately charged and collected." Claims D.R. Horton's class action claims Brunswick County charged these fees with "deliberate indifference" to the company's constitutional rights. Under the Fourteenth Amendment, the government is prohibited from depriving property rights without due process. This alleged constitutional violation, among other reasons, is cited as grounds for the suit D.R. Horton filed the case in United States District Court rather than Brunswick County Superior Court. The suit argues Brunswick County was aware, or should have been aware, that its actions violated both federal and state law. Municipalities were warned in 1982, the suit states, when the North Carolina Supreme Court cautioned local governments that they may lack the power to charge for future services. Brunswick County illegally collected in excess of $5 million between June of 2015 and June 2018, the suit alleges. D.R. Horton has filed a similar federal lawsuit against the City of Charlotte and its water utility, Charlotte Water (formerly known as the Charlotte-Mecklenburg Utility Department). Filed on January 11 in the Western District of United States District Court of North Carolina, the class-action suit also includes a half-dozen other home builders as co-plaintiffs. In that suit, the companies claim the same amount -- at least $5 million plus 6 percent interest -- is owed. In mid-March, Charlotte's attorney filed a motion to dismiss the case, but it is still currently pending. Third case in Cape Fear region When the law changed two years ago, it did not retroactively authorize utility providers to charge the illegal fees. With a three year statute of limitation, some builders that believe they were assessed illegally between September 2015 and June 2018 are pursuing legal action to get their money back. Mecklenburg-based J.A.C.K. Development, LLC, and Wilmington-based Coastal Cypress Building Company, founded by Steve Swain, filed a class action suit against Cape Fear Public Utility Authority (CFPUA) in August 2018. The suit claims CFPUA's baseless collection of fees -- charged with no concrete plan -- "shocks the conscience." (D.R. Horton's suit also uses this same legal jargon.) That same month, the Town of Leland entered into a tolling agreement with Bill Clark Homes Wilmington. The agreement preserves Bill Clark Homes right to enter a lawsuit, of which it has not yet filed. It precludes Leland from claiming statutes of limitations in a future suit, and claims the company overpaid utility impact fees for several years. Then, in September 2018, Wilmington-based Plantation Building Company filed a class action suit against the town, alleging the same thing. Both Leland and CFPUA denied the builders' claims. According to the lead attorney for plaintiffs that filed cases against Leland and CFPUA, the firm Whitfield, Bryson & Mason LLP has filed several similar suits across the state. [GN] CALIFORNIA PROTECTION: Blumenthal Files Suit for Security Guards ---------------------------------------------------------------- The security services company is the target of a proposed class action complaint filed by their California security guards who allege the company failed to provide meal and rest periods to their employees. The Los Angeles labor law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP, filed a class action lawsuit against California Protection and Investigation Services, Inc., alleging that the company failed to provide mandatory meal and rest breaks to its security guard employees. The California Protection and Investigation Services, Inc., lawsuit, Case No. 19STCV14719, is currently pending in the Los Angeles County Superior Court for the State of California. According to the class action complaint's allegations, the company's security guard employees were allegedly unable to take off duty meal breaks due to their rigorous work schedules. California labor laws require an employer to provide an employee required to perform work for more than five (5) hours during a shift with, a thirty (30) minute uninterrupted meal break prior to the end of the employee's fifth (5th) hour of work and a second uninterrupted meal break when employees are required to work ten (10) hours. The complaint alleges that the company did not provide their security guard employees who forfeited meal breaks additional compensation under the law. According to the lawsuit, California Protection and Investigation Services, Inc., allegedly failed and continues to fail to accurately calculate and pay employees for their overtime worked. The class action lawsuit further alleges, in violation of the applicable sections of the California Labor Code and the requirements of the Industrial Welfare Commission ("IWC") Wage Order, California Protection and Investigation Services, Inc., as a matter of company policy, practice and procedure, intentionally and knowingly failed to compensate its employees at the correct rate of pay for all overtime worked. If you think your company is violating the California Labor Code and would like to know if you qualify to make a claim, please contact: Nicholas J. De Blouw, Esq. Phone: (800)-568-8020 Email: nick@bamlawca.com [GN] CALIFORNIA: More Women Prison Workers Come Forward in New Suit -------------------------------------------------------------- Tori Cooper, writing for KERO 23ABC News, reports that in 2018, Sarah Coogle, a California Department of Corrections and Rehabilitation (CDCR) peace officer, filed a lawsuit against the CDCR saying her job led to the death of her unborn baby. Now, six other women working for the CDCR have come forward with a new class action lawsuit similar to hers. Tehachapi State Prison guard Sarah Coogle said, "I can't go back to work because It's incredibly difficult to put on that uniform, to wear that badge knowing this department is what caused me to lose my baby," Coogle said. Ms. Coogle filed a lawsuit last April 2018 against the CDCR after she said she was denied reasonable accommodations while she was pregnant and eventually fell while responding to a prison fight in July of 2017. Coogle lost her unborn baby two months after the fall in September of 2017. Coogle's story sparked six other women across the state to also come forward with similar claims hoping for similar outcomes in other counties. "About 27 weeks pregnant I was asked to do a mandatory overtime shift which would have resulted in an extra six hour shift on top of the eight hour shift that I had already worked. I had informed them at that time... that hey I'm about seven months pregnant I'm having a hard time going up and down the stairs especially with my duty belt and everything. They didn't really seem to care, told me they were going to write me up for it," Angela Powell said. Powell works at the Vacaville Prison and is one of six women now filing the class action lawsuit against the department. The California Correctional Peace Officer's Association (CCPOA) Union said, "The CCPOA team concluded that the old policy wasn't broken and shouldn't be fixed. The CCPOA team disagreed with the basic regulation change so strongly the CCPOA team chose not to put the stamp of approval on the idea." [GN] CAPITAL OF HARRISBURG: Epperson Suit May Proceed in Forma Pauperis ------------------------------------------------------------------ In the case, CHRIS JONATHAN EPPERSON, Plaintiff, v. CAPITAL OF HARRISBURG, et al., Defendants, Case No. 1:19-cv-00475-LJO-SAB (E.D. Cal.), Magistrate Judge Stanley A. Boone of the U.S. District Court for the Eastern District of California (i) granted the Plaintiff's application to proceed in forma pauperis; and (ii) struck from record the Plaintiff's complaint for being unsigned. On April 12, 2019, Plaintiff Epperson filed an unsigned complaint along with an application to proceed in forma pauperis in the action. His application demonstrates entitlement to proceed without prepayment of fees. Notwithstanding the Order, the Magistrate Judge does not direct that service be undertaken until the Court screens the complaint in due course and issues its screening order. Magistrate Judge Boone holds that unsigned documents cannot be considered by the Court, and the Plaintiff's complaint will be stricken from the record on that ground. Upon review of the complaint, the Plaintiff is advised of the legal standards that would appear to apply to his claims. The Magistrate Judge finds that the Plaintiff's complaint is devoid of any factual allegations. The Plaintiff brings the action against Benjamin Harrison, however Mr. Harrison died in 1791. As Mr. Harrison died more than 200 years ago, it is unclear how the Plaintiff can state a claim against him in this action for monetary damages. However, since the complaint has been stricken from the record as being unsigned, the Plaintiff will be provided the opportunity to file a signed complaint. Should his complaint fail to include facts to state a plausible claim that he is entitled to relief, the Court will recommend that the action be dismissed for failure to state a claim. The Plaintiff also cites 28 U.S.C. Section 1291, which limits the jurisdiction of the Court of Appeals to appeals of "final decisions of the district court." "The final judgment rule would not provide jurisdiction for this court to hear an appeal of the decision of any court. Further, Plaintiff has not cited any case in which a final judgment has issued, and, since Mr. Harrison died in 1791, an appeal from any judgment in a case against him would appear to be well beyond the time limit to file an appeal. Finally, as the Plaintiff was recently advised in another case before the Court, simply listing the parties and providing unclear recitations of seemingly random terms is not sufficient. He must explain his case with specificity. Further, the previous order also advised that the Plaintiff cannot bring a class action. He is a non-lawyer proceeding without counsel. It is well established that a layperson cannot ordinarily represent the interests of a class. His privilege to appear in propria persona is a privilege that is personal to him and he has no authority to appear as an attorney for others than himself. . Accordingly, Magistrate Judge Boone granted the Plaintiff's application to proceed in forma pauperis. He struck from record the Plaintiff's complaint for being unsigned. Within 14 days of the date of service of the Order, the Plaintiff will file a signed complaint. If he fails to file a complaint in compliance with the Order or the complaint does not allege facts to demonstrate that he is entitled to relief, the Court will recommend that the action be dismissed for failure to state a claim. A full-text copy of the Court's April 17, 2019 Order is available at https://is.gd/z4kucH from Leagle.com. Chris Jonathan Epperson, Plaintiff, pro se. CAPTAINS HOUSE: Andrews Suit Alleges ADA Violation -------------------------------------------------- Captains House Inn of Chatham, Inc. is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Victor P. Andrews, on behalf of himself and all others similarly situated, Plaintiff v. Captains House Inn of Chatham, Inc., Defendant, Case No. 1:19-cv-11032 (D. Mass., May 1, 2019). Captains House Inn of Chatham, Inc. is a 4-star hotel and offers an on-site fitness center.[BN] The Plaintiff is represented by: C.K. Lee, Esq. Lee Litigation Group PLLC 30 E39th Street, 2nd Flr. New York, NY 10016-2555 Tel: (212) 465-1188 Email: cklee@leelitigation.com CAPTAINS MANOR: Andrews Asserts Breach of Disabilities Act ---------------------------------------------------------- The Captains Manor Inn LLC is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Victor P. Andrews, on behalf of himself and all others similarly situated, Plaintiff v. The Captains Manor Inn LLC, Defendant, Case No. 1:19-cv-11018 (D. Mass., April 30, 2019). The Captains Manor Inn LLC is a premier cape Cod bed and breakfast inn; a romantic B&B getaway in the national registry historic district of Falmouth, Massachusetts.[BN] The Plaintiff is represented by: C.K. Lee, Esq. Lee Litigation Group PLLC 30 E39th Street, 2nd Flr. New York, NY 10016-2555 Tel: (212) 465-1188 Email: cklee@leelitigation.com CHEETAH MOBILE: Masterson Class Action Voluntarily Dismissed ------------------------------------------------------------ Cheetah Mobile Inc. said in its Form 20-F report filed with the U.S. Securities and Exchange Commission on April 26, 2019, for the fiscal year ended December 31, 2018, that the class action suit entitled, Michael Masterson v. Cheetah Mobile Inc., et al., hass been voluntarily dismissed. On November 8, 2017, a putative shareholder class action lawsuit was filed in the United States District Court for the Central District of California against our company and certain of our officers: Michael Masterson v. Cheetah Mobile Inc., et al., Case No. 2:17-cv-08141-R-AFM (C.D. Cal.). The action alleged that certain press releases and SEC filings made by the company relating to its business and operating results contained false or misleading statements in violation of the federal securities laws. On June 27, 2018, the court granted the motion to dismiss the case filed by our company and one of the individual defendants. On October 22, 2018, the plaintiff voluntarily dismissed the case against all remaining defendants without prejudice. Cheetah Mobile Inc. operates as a mobile Internet company worldwide. The company was formerly known as Kingsoft Internet Software Holdings Limited and changed its name to Cheetah Mobile Inc. in March 2014. Cheetah Mobile Inc. was incorporated in 2009 and is headquartered in Beijing, the People's Republic of China. CHEETAH MOBILE: Still Defends Marcu Class Action in New York ------------------------------------------------------------ Cheetah Mobile Inc. said in its Form 20-F report filed with the U.S. Securities and Exchange Commission on April 26, 2019, for the fiscal year ended December 31, 2018, that the company and certain of its current and former officer continue to defend a class action suit entitled, Marcu v. Cheetah Mobile Inc., et al., Case No. 1:18-cv-11184, filed on November 30, 2018 in the U.S. District Court for the Southern District of New York. The action was purportedly brought on behalf of a class of persons who allegedly suffered damages as a result of their trading in the Company's ADRs between April 21, 2015 and November 27, 2018. The action alleges that the Company made false or misleading statements regarding the Company's business and operations in violation of the Sections 10(b) and 20(a) of the U.S. Securities Exchange Act of 1934, and Rule 10b-5 promulgated thereunder. On February 8, 2019, the court entered an order appointing lead plaintiffs in this action. On February 13, 2019, the court approved a scheduling stipulation for the filing of the plaintiffs' amended complaint and defendants' responsive pleadings. On March 28, 2019, an amended complaint was filed. Cheetah Mobile said, "The action remains at its preliminary stages. We believe the case is without merit and intend to defend the actions vigorously." Cheetah Mobile Inc. operates as a mobile Internet company worldwide. The company was formerly known as Kingsoft Internet Software Holdings Limited and changed its name to Cheetah Mobile Inc. in March 2014. Cheetah Mobile Inc. was incorporated in 2009 and is headquartered in Beijing, the People's Republic of China. CHINA ZENIX: Continues to Defend New Jersey Class Action -------------------------------------------------------- China Zenix Auto International Limited said in its Form 20-F report filed with the U.S. Securities and Exchange Commission on April 26, 2019, for the fiscal year ended December 31, 2018, that the company continues to defend a putative class action suit in the U.S. District Court for the District of New Jersey. On October 31, 2018, a putative class action complaint was filed in the United States District Court for the District of New Jersey against the company and certain of its officers alleging violations of the federal securities laws with respect to the delisting of the company's shares on the New York Stock Exchange. The action is in its preliminary stages. China Zenix said, "Other than the aforementioned action, we are currently not a party to, and are not aware of any threat of, any legal, arbitral or administrative proceedings, which, in the opinion of our management, is likely to have a material adverse effect on our business, financial condition or results of operations. We may from time to time become a party to various legal, arbitral or administrative proceedings arising in the ordinary course of our business." China Zenix Auto International Limited designs, manufactures, and sells commercial vehicle wheels to aftermarket and original equipment manufacturers in the People's Republic of China and internationally. China Zenix Auto International Limited was founded in 2003 and is headquartered in Zhangzhou, the People's Republic of China. China Zenix Auto International Limited is a subsidiary of Newrace Limited. COLGATE-PALMOLIVE: ERISA Class Suit in New York Still Ongoing ------------------------------------------------------------- Colgate-Palmolive Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on April 26, 2019, for the quarterly period ended March 31, 2019, that the company continues to defend itself from a putative class action suit involving its Employees' Retirement Income Plan. In June 2016, a putative class action claiming that residual annuity payments made to certain participants in the Colgate-Palmolive Company Employees’ Retirement Income Plan (the "Plan") did not comply with the Employee Retirement Income Security Act was filed against the Plan, the Company and certain individuals in the United States District Court for the Southern District of New York. This action has been certified as a class action. The relief sought includes recalculation of benefits, pre- and post-judgment interest and attorneys' fees. The Company is contesting this action vigorously. Colgate-Palmolive said, "Since the amount of any potential loss from this case currently cannot be reasonably estimated, the range of reasonably possible losses in excess of accrued liabilities disclosed above does not include any amount relating to the case." No further updates were provided in the Company's SEC report. Colgate-Palmolive Company, together with its subsidiaries, manufactures and sells consumer products worldwide. The company operates through two segments, Oral, Personal and Home Care; and Pet Nutrition. Colgate-Palmolive Company was founded in 1806 and is headquartered in New York, New York. CONAGRA BRANDS: Lieff Cabraser Files Securities Fraud Class Action ------------------------------------------------------------------ The law firm of Lieff Cabraser Heimann & Bernstein, LLP announces that class action litigation has been filed on behalf of investors who purchased or otherwise acquired the securities of Conagra Brands, Inc. (NYSE: CAG) between June 27, 2018 and December 19, 2018, inclusive (the "Class Period"), including purchasers in Conagra's secondary public offering of common stock (the "Offering") on or about October 9, 2018. If you purchased or otherwise acquired Conagra securities during the Class Period, including in the Offering, you may move the Court for appointment as lead plaintiff by no later than April 23, 2019. A lead plaintiff is a representative party who acts on behalf of other class members in directing the litigation. Your share of any recovery in the actions will not be affected by your decision of whether to seek appointment as lead plaintiff. You may retain Lieff Cabraser, or other attorneys, as your counsel in the actions. Conagra investors who wish to learn more about the litigation and how to seek appointment as lead plaintiff should click here or contact Sharon M. Lee of Lieff Cabraser toll-free at 1-800-541-7358. Background on the Conagra Securities Class Litigation Conagra, headquartered in Chicago, manufactures and markets packaged foods for retail consumers, restaurants, and institutions and has a portfolio of well-known food brands such as Slim Jim and Orville Redenbacher's. In June 2018, Conagra announced that it would acquire Pinnacle, another food company with its own portfolio of brands. To finance that transaction, Conagra announced a secondary public stock offering in October 2018 to raise more than $600 million. The action alleges that, throughout the Class Period, Conagra and certain of its senior executives misrepresented and failed to disclose to the market that: i) Conagra performed inadequate due diligence in connection with its acquisition of Pinnacle; ii) the performance of Pinnacle's leading brands was not deteriorating due to intensified competition, but rather to its own subpar innovation and executional missteps; iii) Pinnacle's business was performing so poorly that it had to push promotional deals to retailers to try and boost sales; and iv) as a result of the foregoing, Conagra's public statements regarding its acquisition of Pinnacle were materially false or misleading when made. The market began to learn of Conagra's alleged misconduct on December 20, 2018, when the Company announced that net sales for the Pinnacle segment of its business were "below expectations due to weak performance across a range of significant brands." In a conference call that same day, Conagra's Chief Executive Officer and President, Sean Connolly, stated that there had been a "deterioration in the legacy Pinnacle business over the course of the calendar year 2018" as "growth stalled" for Birds Eye, Duncan Hines, and Wish-Bones. Connolly stated that "Pinnacle overextended new items in the same demand pools, favored high margins over high-quality and highly competitive products and missed some major consumer trends," and acknowledged that "the challenges that the Pinnacle business face have been largely self-inflicted due to subpar innovation and executional missteps." Following this news, between the close on December 19 and December 24, 2018, Conagra's stock price fell $8.13, or nearly 28%, to close at $20.96 on December 24, 2018. For more information about Lieff Cabraser and the firm's representation of investors, please visit http://www.lieffcabraser.com. Contact: (for Media Inquiries Only) Sharon M. Lee, Esq. Lieff Cabraser Heimann & Bernstein, LLP Telephone: 1-800-541-7358 Website: www.lieffcabraser.com [GN] CORRECTIONS CORP: Tenn. Shareholder Class Action Certified ---------------------------------------------------------- Dave Solomon, writing for New Hampshire Union Leader, reports that the question of whether New Hampshire needs to commit $26 million immediately to the construction of a new secure forensic psychiatric hospital has become a point of dispute in state budget deliberations. Gov. Chris Sununu included the funding in his budget proposal submitted to the Legislature in February, but House budget writers removed it, saying the project needs more study before funding. While the issue works its way through the budgeting process, one thing has become apparent: There is no shortage of private companies interested in building and operating the facility, and one of them is a contributor to the Sununu campaign who's hired a lobbyist with links to the Sununu family. The Department of Health and Human Services was already at work on the project long before Sununu announced plans to include the $26 million in his budget. The department posted a request for information from potential bidders last fall and got three responses, all of which were made public earlier this year on the DHHS website. The three responses came from CoreCivic of Nashville, Tenn.; Correct Care Recovery Solutions of Deerfield Beach, Fla.; and NeuroInternational of Sarasota, Fla. While Correct Care and NeuroInternational have origins as providers of residential treatment for behavioral health, CoreCivic is the rebranded version of Corrections Corporations of America (CCA), which operates private prisons. CoreCivic is not proposing to operate the secure forensic psychiatric hospital, but is proposing a real estate-only solution, in which it would own the hospital and lease it to the state. The management and staffing of the facility would be carried out by the government or contracted to another vendor. CoreCivic does not currently own or operate any secure psychiatric hospitals. Class action lawsuit CCA has been named in a number of lawsuits alleging unsafe conditions that led to deaths. On March 28, shareholders suing CoreCivic were granted class action status by a U.S. District Court Judge in Nashville for a lawsuit claiming the company inflated stock prices by misrepresenting the quality and value of its services. The lawsuit claims Corrections Corporation of America "ran unsafe, low quality prisons that caused multiple deaths and did not save money." "The allegations made in lawsuits are not confirmed as fact until a jury or a court renders a verdict," said a company spokesperson in an email. In the last gubernatorial campaign, Sununu's Democratic opponent, former state Sen. Molly Kelly, called on Sununu to return campaign contributions from for-profit prison companies involved in immigrant detention, including $10,000 from CoreCivic. The Secretary of State register of lobbyists shows that CoreCivic also hired New Hampshire lobbyist Marc Brown. He confirmed on April 12 that he represents CoreCivic, but declined to comment further. Brown has a connection to the Sununu family through his association with principals in the Profile Strategy Group, based in Exeter, and co-founded by Sununu's brother Michael Sununu. The governor's campaign adviser Jamie Burnett, was a principal with Profile Strategy, and until April of last year the president of Advantage Government Affairs, where his partners included Marc Brown. Decades long struggle New Hampshire has struggled since the 1980s with the fact that its most challenging mental health patients have been housed at a secure unit in the state prison. The push toward a secure unit associated with the state's psychiatric hospital has been motivated by a desire to get mental health patients out of the prison setting. Sununu has been a supporter of the effort to build a new SPU and was well aware of the DHHS request for information when it went out last fall. "We've always said that's a key priority for us," said Sununu at the time. "We have to find out what is best, whether it's building a whole new unit or transferring those who are in the SPU into a better facility. Whatever it is, the state has to do something. This is one of those issues that has gone on long enough." The DHHS made clear last fall that its posting of a request for information was not intended to result in a contract or agreement, but was designed only to help the state decide whether it would be more efficient to build and run the facility on its own, or contract with an outside firm. "Before any contract is awarded, it is fully vetted by the Department of Health and Human Services, and voted on by the Executive Council, allowing for full public transparency," said Sununu's spokesman Ben Vihstadt. "Michael Sununu is not a registered lobbyist in the state of New Hampshire and has had no contact with Gov. Sununu regarding the SPU, and absolutely no organization or lobbyist that has business before the state of New Hampshire receives preferential treatment." Political hot potato The SPU has become a political hot potato as the House and Senate passed amendments addressing its fate last on April 11. The House did not go so far as to restore the full funding requested by Sununu, but did pass an amendment appropriating $1.2 million for engineering and design studies. At almost the same time, the Senate passed an amendment allocating the full $26 million, but then tabled it for inclusion in budget negotiations with the House and governor. "The fact remains that Gov. Sununu included $26 million in his budget to build a new, secure forensic hospital. The Democrats' $1.2M plan fails to fund the new, secure forensic hospital that Gov. Sununu proposed, which would have ended the emergency department boarding crisis and ensured that mental health patients have the support they need," said Vihstadt. "These families have waited over 20 years for a solution to this crisis." [GN] CROTHALL LAUNDRY: Does not Provide Rest Periods, Villacana Says --------------------------------------------------------------- EMILIANO VILLACANA, individually and on behalf of other persons similarly situated, Plaintiffs, v. CROTHALL LAUNDRY SERVICES INC., an active Delaware Corporation; and DOES 1 through 10, Defendants, Case No. 19STCV16330 (Cal. Super. Ct., Los Angeles Cty., May 10, 2019) is a class action lawsuit arising out of the failure of Defendant to provide rest periods at the proper intervals, to provide legally compliant wage statements, and to pay all wages owed to terminated or separated employees in a timely manner. The Defendants had a consistent policy of failing to allow their employees, including Plaintiff, rest periods for at least 10 minutes per 4 hours, or a major fraction worked, and failing to pay such employees 1 hour of pay at their regular rate of compensation for each workday that the rest period is not provided, or other compensation, as required by California state and wage and hour laws, says the complaint. Plaintiff Villacana was hired around April 10, 2018 and terminated on or about May 16, 2018. Defendants offer laundry services.[BN] The Plaintiff is represented by: Zorik Mooradian, Esq. Haik Hacopian, Esq. MOORADIAN LAW, APC 5023 N. Parkway Calabasas Calabasas, CA 91302 Phone: (818) 876-9627 Facsimile: (888) 783-1030 Email: zorik@mooradianlaw.com haik@mooradianlaw.com DAVITA INC: Kahn Swick Probing Securities Law Violations -------------------------------------------------------- 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 DaVita Inc. (DVA). On December 25, 2016, an article by the New York Times highlighted the relationship between the American Kidney Fund ("AKF"), a charity that helps patients pay for kidney dialysis, and its largest donors, including DaVita, suggesting that the AKF had denied charitable premium assistance ("CPA") to patients of dialysis companies who did not donate to it. Then, on January 6, 2017, the Wall Street Journal reported that the Company had received subpoenas from federal prosecutors seeking "the production of information related to charitable premium assistance" in connection with its ties to the AKF. On February 1, 2017, a securities class action lawsuit was filed against the Company alleging that it made false and/or misleading statements and/or failed to disclose its scheme to steer patients into unneeded insurance plans in order to maximize profits, using the AKF to facilitate the improper practices. Recently, the court presiding over the case denied the Company's motion to dismiss, allowing the case to move forward. KSF's investigation is focusing on whether DaVita's officers and/or directors breached their fiduciary duties to DaVita'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 DaVita 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/nyse-dva/ to learn more. Contact: Lewis Kahn, Esq. Managing Partner Kahn Swick & Foti, LLC 1100 Poydras St., Suite 3200 New Orleans, LA 70163 Phone: 1-877-515-1850 Website: www.ksfcounsel.com. Email: lewis.kahn@ksfcounsel.com [GN] DETROIT, MI: ACLU Files Class Action Over Bail System ----------------------------------------------------- Aleanna Siacon, writing for Detroit Free Press, reports that a lawsuit filed on April 14 in federal court claims the bail system at the Michigan's largest district court discriminates against the poorest of defendants who are left awaiting trial behind bars, often for minor offenses, when they can't afford to pay bond. The class-action lawsuit filed by the ACLU of Michigan, the national ACLU and the law firm Covington & Burling says the bail system in place at the 36th District Court in Detroit should be overhauled. "A person's freedom should not depend on how much money they have," Dan Korobkin, ACLU of Michigan deputy legal director, said in a news release. "Bail was originally intended to ensure a person returns to court to face charges against them. But instead, the money bail system has morphed into mass incarceration of the poor. It punishes people not for what they've done but because of what they don't have." The lawsuit was filed in U.S. District Court on behalf of seven black plaintiffs and argues that when someone's freedom depends on their ability to pay bail, there is "a clear violation of due process and equal protection," the ACLU said. According to the news release, Michigan's court rules mandate "meaningful inquiry into an arrested person's ability to pay bail, and requires pretrial release without cash bail except in extraordinary circumstances such as a truly severe flight risk or danger to the community." In addition, defendants are supposed to be provided attorneys to represent them while bond is being set. "These requirements are blatantly violated in the 36th District Court, where arraignments last only a few minutes, defendants appear without counsel, ability-to-pay determinations are not conducted, and 85% of those who are arraigned while under arrest are required to pay cash bail in order to be released," the release said. Chief Judge Nancy M. Blount, the five magistrates who set bail at arraignments in 36th District Court and Wayne County Sheriff Benny Napoleon are named as defendants in the lawsuit, which seeks "systemic reforms to Detroit's pretrial bail system," the ACLU said. The Free Press was unable to reach anyone at 36th District Court or the Sheriff's Office for comment on April 14. The Sheriff's Office said it "does not comment on matters of civil litigation in which it is a named party." "Detroiters deserve a justice system that is smart, fair, and works for everybody," said Aaron Lewis, a partner at Covington, which is co-lead counsel in the lawsuit. "The cash bail system is devastating to families, it separates parents from their children, it harms communities and businesses, and it wastes taxpayer dollars keeping people locked in jail who should be at home." The ACLU said it observed hundreds of court proceedings before filing the lawsuit. The organization claims: * Most bail arraignments are done via video teleconference between a 36th District courtroom and the Detroit Detention Center Guards allegedly tell defendants off-camera that the only purpose of the arraignment is to plead "not guilty" and to only answer the judge's questions with "yes" or "no." * Arraignments typically last 2-4 minutes with bail set in less than a minute, and defendants are not asked if they can pay bail, allowed to ask questions or complain if they can't afford it. * The defendants in 95% of these cases do not have an attorney. * Arrestees who can afford to pay bail are routinely released from custody upon payment. Arrestees who are otherwise identical, but are too poor to purchase their release, remain in jail because of their indigency. The ACLU also noted that 62% of the the 1,600-plus people in Wayne County jails are pre-trial detainees who usually cannot afford bail, and these pre-trial detainees cost taxpayers an estimated $164,000 per day. People of color are also disproportionately impacted by the use of bail and are more likely to be jailed due to an inability to pay, the ACLU said. "36th District Court's broken bail system is wreaking devastating consequences in a city where the population is nearly 80 percent African American," Twyla Carter, senior staff attorney with the ACLU's Criminal Law Reform Project said in the statement. "In addition to being unconstitutional, this further impoverishes people who are already facing extraordinary challenges and enduring severe racial disparities in our criminal legal system." One of the seven plaintiffs, Davontae Ross, was arrested on April 11 for failing to appear at a hearing over a minor ticket: staying in a park after dark, according to the lawsuit. He's in jail, unable to afford the $200 bail, the lawsuit says. In February, Michigan Chief Justice Bridget McCormack announced an effort to try to reduce jail costs by setting reasonable bonds. Five courts are participating, but the Detroit court isn't among them. [GN] DOLLAR GENERAL: Class Action Over Obsolete Motor Oils Certified --------------------------------------------------------------- David A. Wood, writing for CarComplaints.com, reports that a Dollar General oil lawsuit has been certified as a class action for customers in 16 states who allege DG Auto SAE 10W-30, DG Auto SAE 10W-40 and DG Auto SAE 30 motor oils are obsolete. A combination of at least 18 lawsuits, the multidistrict litigation alleges Dollar General places the cheaper obsolete oil next to more expensive oils manufactured by name-brand companies. According to the plaintiffs, the oil lawsuit was filed because the products can damage vehicles since the oil isn't for use in modern-day engines. Attorneys for Dollar General argue fine print on the oil bottles clearly says DG Auto SAE 10W-30 and DG Auto SAE 10W-40 oils are "not suitable for use in most gasoline powered automotive engines built after 1988" and "may not provide adequate protection against the build-up of engine sludge." In addition, DG Auto SAE 30 oil containers have small print that says, "not suitable for use in most gasoline powered automotive engines built after 1930," and "use in modern engines may cause unsatisfactory engine performance or equipment harm." According to Dollar General, allegations made in the lawsuit aren't sound because all the oils come with warranties, and the company allegedly shouldn't be held responsible just because consumers didn't read the warnings. Dollar General also says it knew the motor oil was obsolete but didn't see a problem because legitimate consumer markets allegedly exist for the oil. In addition, the company says market research shows many customers keep their vehicles up to 12 years. The plaintiffs responded by arguing Dollar General had discussed in a 2015 business meeting the possibility of updating the motor oil from API SF to API SN, something that finally occurred between October 2015 and February 2016. The API SN motor oils are recommended for use in car engines manufactured after 1988. The SF and SA motor oils were reduced in price and moved to separate locations in the lawn and garden sections. But according to the plaintiffs, the damage was already done because Dollar General sold millions of quarts of the obsolete oil worth $156 million. The plaintiffs say they suffered legal injuries as result of the obsolete 10W-40, 10W-30, and SAE 30 DG oil and wouldn't have purchased it if the labels wouldn't have been deceptive and if the placement of the products wouldn't have been deceptive. The judge ruled the plaintiffs proved their case for a class action that now includes unjust enrichment and consumer protection claims for customers in 16 states. However, Judge Gary A. Fenner decided the plaintiffs failed in their arguments for a nationwide class action over unjust enrichment claims, multistate implied warranty claims and statewide implied warranty claims. The Dollar General oil lawsuit now includes consumers in the following 16 states who purchased DG SAE 10W-30 or DG SAE 10W-40 for use in vehicles manufactured after 1988, or DG SAE 30 for use in vehicles manufactured after 1930. California: All consumers who purchased the affected oil since February 8, 2012. Colorado: All consumers who purchased the affected oil since February 15, 2013. Florida: All consumers who purchased the affected oil at any time. Illinois: All consumers who purchased the affected oil since since February 15, 2013. Kansas: All consumers who purchased the affected oil since February 2013. Kentucky: All consumers who purchased the affected oil since February 15, 2014. Maryland: All consumers who purchased the affected oil since December 2011. Michigan: All consumers who purchased the affected oil since February 2010. Minnesota: All consumers who purchased the affected oil since February 15, 2010. Missouri: All consumers who purchased the affected oil since February 15, 2011. Nebraska: All consumers who purchased the affected oil since February 2012. New Jersey: All consumers who purchased the affected oil since December 2009. New York: All consumers who purchased the affected oil since December 2009. North Carolina: All consumers who purchased the affected oil since 2010. Ohio: All consumers who purchased the affected oil since 2011. Wisconsin: All consumers who purchased the affected oil since from May 8, 2011, to the present. The Dollar General oil lawsuit was filed in the U.S. District Court for the Western District of Missouri - IN RE: Dollar General Corp. Motor Oil Marketing and Sales Practices Litigation. The multidistrict litigation includes the following cases: Wait v. Dollar General Corporation, et al. Vega v. Dolgencorp, LLC Brown v. Dollar General Corporation, et al. Barfoot, et al. v. Dolgencorp, LLC Solis v. Dollar General, et al. Meyer v. Dollar General Corporation, et al. Foppe v. Dollar General Corporation, et al. Mccormick v. Dolgencorp, LLC Gooel v. Dolgencorp, LLC Sheehy v. Dollar General Corporation, et al. Oren v. Dollar General Corporation, et al. Harvey v. Dollar General Corporation, et al. Flinn v. Dolgencorp, LLC Gadson v. Dolgencorp, LLC Fruhling v. Dollar General Corporation, et al.. Sisemore v. Dolgencorp, LLC Deck v. Dollar General Corporation Hill v. Dolgencorp, LLC [GN] DR. JAMES GOYDOS: Facing 160 Charges in Class Action Suit --------------------------------------------------------- Amanda Hoover, writing for NJ Advance Media for NJ.com, reports that a woman employed at the Rutgers Cancer Institute of New Jersey has sued a former top doctor there after he allegedly recorded her and at least 28 others in the bathroom over a nine month period. The civil suit comes after authorities brought 160 criminal charges against Dr. James Goydos, a former professor of surgery and melanoma treatment specialist at Rutgers Robert Wood Johnson Medical School. The criminal counts ranges from invasion of privacy, official misconduct, burglary, computer theft, impersonation, wiretapping, falsely implicating another, coercion, hindering, possession of an assault rifle and possession of a prohibited device. The woman, who is not identified in the lawsuit, filed the class action complaint in Middlesex County Superior Court on March 22, and an amended version was filed April 1. It comes after various news articles, including reporting by NJ Advance Media, detailed the indictment in February. Goydos, 58, of New Brunswick, resigned from his $437,000 salaried, tenured position in December, shortly after the indictment was returned by a grand jury. He maintains his innocence and contends he was framed by higher-ups at RCINJ for speaking out against grant fraud and his claim that the center sought to earn more money at the expense of patient care. Last month, he pushed back against the charges with his own civil suit slamming RCINJ, RWJ Barnabas health and several top doctors. The class action suit filed by the woman, who worked with Goydos and used the bathroom in question, accuses him of "intentional infliction of emotion distress," and "negligence." The 26 women and three others, whose genders have not been disclosed, were subject to "mental anguish, embarrassment and severe emotional distress," according to the claim. Steve Fearon, Esq. -- stephen@sfclasslaw.com -- an attorney of the New York-based Squitieri & Fearon representing the woman, said the firm has received calls from others who may have been filmed in the bathroom, and he is working to determine how many of those who came forward are on camera. "We look forward to pursuing these claims for women who reasonably expected privacy and a safe space when they used the women's room at Rutgers but instead were recorded by Dr. Goydos," his firm said in a statement. The lawsuit filed by Goydos elaborated on the videotaping allegations, saying he was accused of wiring a camera in the bathroom to the office of Dr. Steven Libutti, director of the Cancer Institute of New Jersey and Senior Vice President on Oncology Services at RWJ Barnabas Health, in an attempt to frame him. In his suit, Goydos claims an elaborate set up to frame him after Libutti deemed him a "troublemaker" for his whistleblower efforts. Those included accusing Libutti of directing researchers to lie while seeking grant funding in the ever-competitive field. Goydos is expected back in court to face the criminal charges against him May 20. An attorney for Goydos did not immediately return a requests for comment. [GN] FALLSBURG, NY: Pere Files Tort Class Suit in New York ----------------------------------------------------- A class action lawsuit has been filed against Town of Fallsburg. The case is styled as Scott Brandler Pere, Josef Coates, Lisa Lerman, Jacob Farkas, Arthur o/b/o themselves & all others similarly situated, Plaintiffs v. Town of Fallsburg, Fallsburg Waste Water Plant Department, Town of Fallsburg Department of Public Works, Loch Sheldrake Wastewater Treatment Plant, Lochmor Municipal Golf Course aka Lochmor Gold Course, Defendant, Case No. 369/2019 (N.Y. Sup., May 2, 2019). The nature of suit is stated as Tort. Fallsburg is a town in Sullivan County, New York, United States. The town is in the eastern part of the county. The population was 12,870 at the 2010 census.[BN] The Plaintiffs are represented by: GERMAN RUBENSTEIN, LLP 19 WEST 44TH ST, SUITE 1500 NEW YORK, NY 10036 Tel: (646) 365-0347 The Defendant is represented by: FISHMAN DECEA & FELDMAN, Esq. 84 BUSINESS PARK DR, SUITE 200 ARMONK, NY 10504 Tel: (914) 285-1400 FANNIE MAE: Baltimore Files Major Antitrust Lawsuit --------------------------------------------------- Jenny Fulginiti, writing for WBAL Baltimore, reports that Baltimore City is going after some big financial institutions in a class action antitrust lawsuit. The lawsuit alleges price-fixing and conspiracy in the Fannie Mae/Freddie Mac bond market. City Solicitor Andre Davis said he's bringing the suit to protect city taxpayer interests. "We have focused on those inside the city and outside the city who pose a risk of harm, financial harm or other harm, to the people of Baltimore," Davis said. Davis said the city has filed the class-action antitrust suit seeking to recover damages for a price-fixing conspiracy in the sale and purchase of debt issued by the Federal National Mortgage Association, or Fannie Mae, and the Federal Home Loan Mortgage Corp., also known as Freddie Mac. They are referred to as "FFBs," short for Fannie and Freddie bonds. "We have filed a lawsuit against Fannie Mae-sponsored banks, including Citibank, Bank of America and a number of others who we have firm evidence to show these banks conspired to increase the cost of these FFBs," Davis said. Defendants include Bank of America, Barclays, Citi, Credit Suisse, Deutsche Bank, First Tennessee Bank, Goldman Sachs, Jefferies Group LLC, JP Morgan, Merrill Lynch, Pierce, Fenner & Smith Inc., UBS and other unnamed co-conspirators. Davis said in a statement that FFBs are favored by municipalities because they are generally considered safe investments that provide a high degree of liquidity. The U.S. Department of Justice has opened a criminal investigation into price manipulation by bank traders in the secondary FFB market. Davis said the city pursues recoveries when they learn that large banks have colluded to increase prices on complex financial instruments, overcharging the city by millions of dollars. Davis said pharmaceutical companies have encouraged doctors to push powerful drugs into the community. During the conspiracy period of 2009 though 2014, the city of Baltimore paid almost $1 billion for 108 FFBs, city officials said.[GN] FERDINAND MARCOS: Martial Law Victims Challenge Lawyers' Fees ------------------------------------------------------------- Patricia Denise M. Chiu, writing for Philippine Daily Inquirer, reports that complainants in the class action suit for human rights violations against the estate of dictator Ferdinand Marcos have registered their protest over what they call "exorbitant" lawyers' fees that will be paid to American lawyer Robert Swift and his colleagues. In an interview with the Inquirer, Jake Almeda Lopez, a claimant and member of the class action, said the work Swift and his associates did should not be rewarded so handsomely, to the point that they will get more than the claimants, or even the Philippine government. 'Work much easier' "The work of lawyers in a class suit is much easier than an ordinary case, where all complainants have to be heard by the court," Lopez said, adding that the Hawaii class action should be "revisited." However, lawyer Rodrigo Domingo, the local counterpart of Swift, said that the case was "a complex one" that involved appearances in three continents, and that the 30-percent fee was not exorbitant. "The attorney's fees are not exorbitant because it is contingent on Swift's winning the case, and he gets nothing if he loses," Domingo said. Earlier, a US court ordered the distribution of $13.75 million to martial law victims who were part of the class action lawsuit. Judge Real set the fees The money was allocated for the victims in a settlement agreement reached in January 2019 as their share of $32 million obtained from the sale of four paintings, including a Monet, acquired by Marcos' widow, Imelda. Under the deal, the government was to receive $4 million and the remainder to be split between Golden Buddha Corp. and the estate of Roger Roxas, who reportedly discovered the so-called Yamashita treasure. According to Domingo, Judge Manuel Real, who presided over the lawsuit in Hawaii against Marcos, set the 30 percent lawyers' fees. "Class notices were sent to qualified claimants and they were given time to object," Domingo said. 'Fair, reasonable' Domingo added that since there were no objections from members of the class action, the fee was ruled "fair, reasonable and adequate under US law." However, Lopez argued that even though there were objections, it was difficult for a protesting claimant to explain his position before the court. "Requiring a protesting claimant to personally appear in the Hawaii court or to file a formal pleading which requires the services of a US lawyer is expensive," Lopez said. Another group of claimants, Samahan ng Ex-Detainees Laban sa Detensyon at Aresto, said that they also felt that the lawyer's fees were exorbitant. [GN] FIAT CHRYSLER: Car Owners Get $3K in 3.0L Ecodiesel Settlement -------------------------------------------------------------- Sean Murray, writing for HotCars, reports that owners of a Jeep Grand Cherokee or Ram 1500 equipped with a 3.0-L EcoDiesel are about to get a big payday. Way back in 2017, Fiat Chrysler was sued by US and state regulators over the 3.0-L EcoDiesel engine. Apparently, FCA engineers had fitted certain vehicles equipped with those engine with software that was designed to fib on emissions tests. Allegedly, anyway. Fiat continues to deny the charges and is admitting no wrongdoing even though they're sending out a lot of money to pay fines and pay off a class-action lawsuit. FCA reached a settlement with regulators in said class-action suit earlier in January that saw the Italian/American carmaker set aside $800,000 to pay off diesel owners and the feds. Now we've got details on just how much everyone is going to get. Owners of Jeep Grand Cherokees and Ram 1500 pickups equipped with a 3.0-L EcoDiesel engine built between 2014 and 2016 can expect a cheque in the mail for $3,075. That represents the settlement cash as negotiated by lawyers working for the EPA, Carb, and private vehicle owners. In addition to the cash, FCA has agreed to get all vehicle owner's software updated free of charge. Owners will also get an extended warranty that goes for 10 years or 120,000 miles, whichever comes first. "The settlements contain no findings of wrongdoing, nor admission of any wrongdoing, by FCA," the carmakers said in a prepared statement. "The updated software does not affect average fuel economy, drivability, durability, engine noise, vibration, or other driving characteristics of the vehicles." Owners will have 21 months to get their vehicle in for the update. About 100,000 vehicles are expected as part of this recall. Those that can do math will note that this only amounts to roughly $300 million in payouts. The rest will go to the EPA and CARB as part of the settlement. The government will always get what's owed, after all. [GN] FIRST HAWAIIAN: Final Approval in Suit v. Unit Set for Aug. 6 ------------------------------------------------------------- First Hawaiian, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on April 26, 2019, for the quarterly period ended March 31, 2019, that the final settlement approval hearing in the purported class action suit involving First Hawaiian Bank has been set for August 6, 2019. On January 27, 2017, a putative class action lawsuit was filed by a Bank customer alleging that First Hawaiian Bank (FHB) improperly charged an overdraft fee in circumstances where an account had sufficient funds to cover the transaction at the time the transaction was authorized but not at the time the transaction was presented for payment, and that this practice constituted an unjust and deceptive trade practice and a breach of contract. The lawsuit further alleged that FHB's practice of assessing a one-time continuous negative balance overdraft fee on accounts remaining in a negative balance for a seven-day period constituted a usurious interest charge and an unfair and deceptive trade practice. On October 2, 2018, the parties reached an agreement in principle to resolve this class action lawsuit. In connection with the anticipated settlement agreement, the Company recorded an expense of approximately $4.1 million during the three months ended September 30, 2018. During the three months ended March 31, 2019, the Court entered an order preliminarily approving the settlement agreement, pursuant to which the Company funded a $4.1 million settlement account. The final approval hearing has been set for August 6, 2019. First Hawaiian, Inc. operates as a bank holding company for First Hawaiian Bank that provides a range of banking services to consumer and commercial customers in the United States. It operates in three segments: Retail Banking, Commercial Banking, and Treasury and Other. The company was formerly known as BancWest Corporation and changed its name to First Hawaiian, Inc. in April 2016. The company was founded in 1858 and is headquartered in Honolulu, Hawaii. First Hawaiian, Inc. is a subsidiary of BancWest Corporation. FLORIDA: 7th Cir. Affirms Dismissal of PDN Services Suit -------------------------------------------------------- In the case, A.R., by and through her next friend, Susan Root, C.V., by and through his next friends, Michael and Johnette Wahlquist, M.D., by and through her next friend, Pamela DeCambra, C.M., by and through his next friend, Norine Mitchell, T.H., by and through her next friend, Paolo Annino, A.G., by and through his next friend Gamal Gasser, Plaintiffs-Appellants, B.M., by and through his next friend, Kayla Moore, et al., Plaintiffs, v. SECRETARY FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION, in her official capacity, STATE SURGEON GENERAL, in his official capacity as the State Surgeon General and Secretary of the Florida Department of Health, KRISTINA WIGGINS, in her official capacity as Deputy Secretary of the Florida Department of Health and Director of Children's Medical Services, STATE SURGEON GENERAL JOHN ARMSTRONG, MD, DEPUTY SECRETARY DR. CELESTE PHILIP, INTERIM SECRETARY JUSTIN M. SENIOR, Agency for Health Care Administration, CASSANDRA G. PASLEY, Director of Children's Medical Services, Defendants-Appellees, eQHEALTH SOLUTIONS, INC., a Louisiana non-profit corporation, et al., Defendants. UNITED STATES OF AMERICA, Consol Plaintiff, v. THE STATE OF FLORIDA, Consol Defendant, Case No. 17-13572 (7th Cir.), the U.S. Court of Appeals for the Eleventh Circuit affirmed the district court's dismissal of a putative class action challenging Florida's provision of medical services to Medicaid-recipient, medically fragile children. The case concerns medically fragile children -- children with medical conditions so serious as to require medical apparatus or procedures to sustain their lives. Each of the Plaintiffs-Appellants is medically fragile. M.D., C.V., C.M., and other medically fragile children sought private-duty nursing ("PDN") services for their gravely needed, specialized, and intensive medical care. PDN services are one-on-one nursing services provided to individuals who require more in-depth care than a hospital or nursing facility can provide. Florida's Medicaid program covers medically necessary PDN services provided to Medicaid-recipient children. But at the time the medically fragile Plaintiffs sought these services, four Florida policies allegedly reduced coverage of PDN services for them. The first was Florida's definition of "medically necessary," which excluded from coverage services that were "primarily intended for the convenience of the recipient, the recipient's caretaker, or the provider." Second, Florida Medicaid covered PDN services only for children who were "unable to attend a Pediatric Prescribed Extended Care" ("PPEC") Center: an institution in which children received out-of-home care for up to twelve hours a day, seven days a week. Third, if authorized, Florida PDN services to medically fragile children were "decreased over time as parents and caregivers were taught skills to care for their child and became capable of safely providing that care or as the child's condition improves. Fourth, Florida inconsistently administered Pre-Admission Screening and Resident Review ("PASRR") screenings resulting in denial of medically necessary services, including PDN care. Applying these policies, the State routinely denied PDN services to medically fragile children. Without the in-home nursing care the children needed, their families had no choice but to place them in nursing facilities, a result their families desperately sought to avoid. Two groups of medically fragile children, through their legal guardians, sued Florida officials seeking systemic changes to the State's administration of Medicaid services to such children. The first group, children who were institutionalized—that is, residing in Florida nursing homes—alleged that the State had inappropriately screened them for, and denied them Medicaid coverage for, services that would have allowed them to remain in their homes. The second group, children who remained at home and received Medicaid-funded PDN services, alleged that the State's policies, including application of the convenience standard, reduced the availability of those services and put them at risk of unnecessary institutionalization. The Plaintiffs sought certification of a class of all current and future Medicaid recipients in Florida under the age of 21, who are (1) institutionalized in nursing facilities, or (2) medically complex or fragile and at risk of institutionalization in nursing facilities. After the district court consolidated their cases, the Plaintiffs filed an amended complaint with five counts. Counts 1 through 4 challenged Florida's policies, practices, and regulations to reduce PDN services. Counts 1 and 2 specifically alleged violations of Title II of the Americans with Disabilities Act ("ADA"), and the Rehabilitation Act, respectively. Under these counts, the Plaintiffs alleged that Florida's policies violated each Act by placing them at risk of segregation in institutional settings and by denying them medically necessary services, including PDN services. Counts 3 and 4 alleged claims under 42 U.S.C. Section 1983 for violations of the United States Medicaid Act. Specifically, the Plaintiffs alleged in Count 3 that the AHCA's regulatory definition of "medical necessity" and the Defendants' policies for providing PDN services, below the level that is medically necessary, violated the Early and Periodic Screening, Diagnostic, and Treatment ("EPSDT") provisions of the federal Medicaid statute. And Count 4 alleged that Florida's policies limited the provision of PDN services, resulting in delays and denials of medically necessary care to the Plaintiffs in violation of the Medicaid Act's "reasonable promptness" provision, which requires assistance to be provided with reasonable promptness to eligible individuals. Finally, Count 5 challenged the State's administration of the PASRR provisions of the Nursing Home Reform Amendments of 1987 ("NHRA") to the Medicaid Act. This claim alleged that Florida's administration of its PASRR program failed to comply with the NHRA, resulting in wrongful admission of children to, or retention of children in, nursing facilities. The Plaintiffs sought certification of a class under Federal Rule of Civil Procedure 23(b)(2) and for declaratory and injunctive relief on all five claims. After a year of litigation, including discovery, the State moved to dismiss the complaint because, beginning in 2013, it had discontinued its application of the convenience standard to PDN services. The district court denied the motion to dismiss. Another year passed, and the administrative rule changes concerning the PPEC prioritization and PASRR screenings became final. Again, the State moved to dismiss. Because the State still had not amended its regulatory definition of "medically necessary" in Rule 59G-1.010(166), however, the district court denied its motion for a second time. The district court subsequently dismissed the claims of one of the Plaintiffs, A.R., when she moved to Colorado, and of two other Plaintiffs, T.H. and A.G., when they turned 21, on the ground that as legal adults they were no longer subject to the challenged policies. The district court next dismissed Count 5, concluding that the challenge to the PASRR screenings concerned only institutionalized children and that, due to death or dismissal, no institutionalized children remained as parties to the case. It also denied the Plaintiffs' motion for class certification because the proposed class was inadequately defined and unascertainable and because class certification was unnecessary. Thus, the case was reduced from five to four claims and from a potential class action to only three Plaintiffs, none of whom was institutionalized. Florida then moved for summary judgment, again arguing that the remaining claims -- Counts 1 through 4 -- were moot given Florida's new, final Rule 59G-4.261(4). The new rule provided that the convenience standard contained in the general definition of "medical necessity" in Rule 59G-1.010(166) "shall not be applicable when determining the medical necessity of PDN services.'" The State also pointed out that it had been more than three years since it had last applied the convenience standard in deciding whether to cover PDN services. Treating Florida's motion for summary judgment as a Federal Rule of Civil Procedure 12(b)(1) motion to dismiss, a magistrate judge determined that the case was moot because the State had terminated all the challenged policies and nothing suggested that the policies would be reinstated if the suit [were] terminated." Doc. 634 at 25. The magistrate judge rejected what he characterized as the Plaintiffs' attempts on the eve of trial to again rewrite the complaint and expand the scope of this case to the provision of other medically necessary services beyond PDN. Adopting the magistrate judge's recommendation, the district court dismissed all remaining claims. This appeal followed. On appeal, the Plaintiffs challenge the district court's dismissal of their claims in four ways. First, they argue that the district court improperly dismissed Counts 1 through 4 as moot, both because the court improperly limited the scope of the lawsuit to PDN services and because Florida might renege on its policy changes. Second, they argue that the district court erred in dismissing Count 5 because the remaining Plaintiffs could maintain that claim despite the fact that they were not presently institutionalized. Third, they object to the dismissal of Plaintiffs A.R., A.G., and T.H. from the case on mootness or lack of standing grounds because they had either moved away from Florida or turned 21. Fourth, they argue that the district court improperly denied class certification. The Court holds that because Counts 1 through 4 of the complaint specifically challenged Florida's policies relating to Medicaid coverage of PDN services and Florida unambiguously changed its policies through formal rule-making to exempt PDN services from the convenience standard, prohibit prioritization of PPEC over PDN services, abolish the caregiver preference, and mandate complete PASRR screenings, the district court properly dismissed Counts 1 through 4 as moot. That leaves the Court with Count 5 of the complaint, which concerns Florida's administration of the PASRR provisions of the NHRA in compliance with federal law. The district court dismissed the PASRR claim because it was brought on behalf of children who were institutionalized, yet no Plaintiff in the case remained in an institution. The Plaintiffs concede that none of the Plaintiffs who resided in nursing institutions when the complaint was filed remains institutionalized. But they argue that they nevertheless can challenge the PASRR program because Florida's allegedly flawed administration of the program puts remaining Plaintiffs C.V., M.D., and C.M. at risk of unnecessary institutionalization. The Court rejects this argument because Count 5 of the complaint clearly specified that "institutionalized Plaintiffs" challenged the State's administration of the PASRR program and that only "institutionalized Plaintiffs and members of the sub-class of institutionalized Plaintiffs" were harmed by it. Count 5 did not allege any claims on behalf of non-institutionalized children who might be at risk of being institutionalized. Because Counts 1 through 4 are moot given Florida's unequivocal policy changes and because no institutionalized Plaintiff remains in the case to bring Count 5, the district court correctly dismissed the case in its entirety. It affirmed the district court's dismissal. A full-text copy of the Court's April 17, 2019 Order is available at https://is.gd/fTfMDB from Leagle.com. Paolo Annino, for Plaintiff-Appellant. Ira A. Burnim -- irab@bazelon.org -- for Plaintiff-Appellant. John Armando Boudet -- john.boudet@gray-robinson.com -- Andre V. Bardos -- andy.bardos@gray-robinson.com -- Stuart F. Williams -- swilliams@hensonefron.com -- Steven Howard Schwartz , Caryl Kilinski, Christopher N. Johnson -- christopher.johnson@gray-robinson.com -- Harry Osborne Thomas, George N. Meros, Jr., William Eugene Gandy, Jr., Andrew Taylor Sheeran -- andrew.sheeran@ahca.myflorida.com -- David A. Boyer, Thomas A. Crabb, Molly Paris, Leslei Gayle Street, Allison G. Mawhinney, Ashley Hoffman Lukis, Jennifer Ann Tschetter -- jennifert@carltonfields.com -- Jay Patrick Reynolds, H. Justin Park, Lindsey Weinstock, Eliza Dermody, Elizabeth Erin McDonald, Victoria Thomas, Brittany Adams Long, Steven J. Schwartz -- sschwartz@ssfpc.com -- Jennifer Mathis, Alison Nodvin Barkoff, Kathryn Lesley Rucker, U.S. Attorney Service — Southern District of Florida, for Defendant-Appellee. Edward Joseph Grunewald, for Plaintiff-Appellant. Christopher B. Lunny -- clunny@radeylaw.com -- for Plaintiff-Appellant. Matthew W. Dietz -- info@justdigit.org -- for Plaintiff-Appellant. Lisa Charli Goodman -- lgoodman@justdigit.org -- for Plaintiff-Appellant. Beth Esposito, for Plaintiff-Appellant. FORD MOTOR: Drake Sues Over Inaccurate Fuel Economy Ratings ----------------------------------------------------------- Dillon Drake, on behalf of himself and all others similarly situated, Plaintiff v. Ford Motor Company, a Delaware corporation, Defendant, Case No. 2:19-cv-14165-XXXX (S.D. Fla., May 10, 2019) is a class action on behalf of all purchasers and lessees of Ford F-150 vehicles against Defendant for its failure to accurately represent EPA fuel economy ratings. Fuel economy is such an important factor in the purchase of a vehicle that its disclosure to consumers is mandated by law. Moreover, in order for fuel economy ratings to be meaningful, the Environmental Protection Agency ("EPA") requires auto manufacturers to use specific testing methods and procedures from which fuel economy calculations can be fairly assessed and then subsequently compared across all vehicle makes and models. Over the past several years, the consuming public has been plagued by abuses among auto manufacturers who have purposefully skewed and misrepresented fuel consumption and emission results in an effort to dupe the consuming public into purchasing their vehicles. Justifiably, consumers relied on the representations, purchased vehicles whose material attributes were misrepresented and as a result suffered financial loss. Ford itself is no stranger to such behavior, and indeed was implicated only a few years ago when a study revealed discrepancies as high as 20 percent between stated and real-world fuel economy estimates for its 2013 Fusion and C-Max hybrids. As result of the study, and ensuing litigation, Ford was forced to adjust its consumption estimates on those vehicles and subsequently restated fuel economy results for several other of its 2013-2014 models. Despite the importance of accurate and reliable fuel economy and emission representations, Ford's checkered history, recidivist tendencies, and blind desire for economic gain have resulted in the matter complained of herein. Upon information and belief, the F-150, Ford's best-selling flagship pickup truck, was subject to this flawed testing and subsequently sold to the consuming public with inaccurate fuel economy figures. Indeed, less than two months after its announcement, Ford revealed that the U.S. Department of Justice opened a criminal investigation over its flawed emissions-certification processes, specifically focusing on the auto maker's road-load estimations and coastdown procedures that are used to determine EPA fuel-efficiency figures. Consumers, such as the Plaintiff, reasonably relied on Ford's representations in making their decision to purchase Ford vehicles and were damaged as a result, says the complaint. Plaintiff Dillon Drake is a resident of Sebring Park, Florida and owner of a F150 Raptor vehicle, ("Vehicle"). Ford Motor Company is a Delaware company with its principal place of business in Dearborn Michigan.[BN] The Plaintiff is represented by: John A. Yanchunis, Esq. MORGAN & MORGAN COMPLEX LITIGATION GROUP 201 N. Franklin Street, 7th Floor Tampa, FL 33602 Phone: (813) 223-5505 Email: jyanchunis@forthepeople.com - and - Mike Morgan, Esq. MORGAN & MORGAN COMPLEX LITIGATION GROUP 20 N. Orange Avenue, Suite 1600 Orlando, FL 32801 Email: MMorgan@forthepeople.com FRANKLIN RESOURCES: Agreement in Fernandez-Cryer Suit Pending ------------------------------------------------------------- Franklin Resources, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on April 26, 2019, for the quarterly period ended March 31, 2019, that the company is still awaiting the Court's approval of the settlement agreement in the consolidated Fernandez-Cryer lawsuit. In July 2016, a former employee filed a class action lawsuit captioned Cryer v. Franklin Resources, Inc., et al. in the United States District Court for the Northern District of California against Franklin, the Franklin Templeton 401(k) Retirement Plan ("Plan") Investment Committee ("Investment Committee"), and unnamed Investment Committee members. The plaintiff asserts a claim for breach of fiduciary duty under the Employee Retirement Income Security Act ("ERISA"), alleging that the defendants selected mutual funds sponsored and managed by the Company (the "Funds") as investment options for the Plan when allegedly lower-cost and better performing non-proprietary investment vehicles were available. The plaintiff also claims that the total Plan costs, inclusive of investment management and administrative fees, are excessive. The plaintiff alleges that Plan losses exceed $79.0 million and seeks, among other things, damages, disgorgement, rescission of the Plan's investments in the Funds, attorneys' fees and costs, and pre- and post-judgment interest. In November 2017, a second former employee, represented by the same law firm, filed another class action lawsuit relating to the Plan in the same court, captioned Fernandez v. Franklin Resources, Inc., et al. The plaintiff filed an amended complaint in February 2018, naming the same defendants as those named in the Cryer action, as well as the Franklin Board of Directors, the Plan Administrative Committee, individual current and former Franklin directors, and individual current and former Investment Committee members. The plaintiff in this second lawsuit asserts the same ERISA breach of fiduciary duty claim asserted in the Cryer action, as well as claims for alleged prohibited transactions by virtue of the Plan's investments in the Funds and for an alleged failure to monitor the performance of the Investment Committee. The plaintiff alleges that Plan losses exceed $60.0 million and seeks the same relief sought in the Cryer action. In April 2018, the court consolidated the Fernandez action with the existing Cryer action. Franklin Resources said, "While management strongly believes that the claims asserted in the consolidated litigation are without merit, in order to avoid protracted litigation, on December 3, 2018, Franklin elected to enter into an agreement-in-principle to resolve the matter for a cash payment of $13.9 million, which the Company has accrued. In addition, Franklin agreed, among other Plan changes, to increase its existing matching contributions from 75% to 85% for eligible participant salary deferrals for a period of three years. The agreement is subject to court approval." No further updates were provided in the Company's SEC report. Franklin Resources, Inc. is a publicly owned asset management holding company. Through its subsidiaries, the firm provides its services to individuals, institutions, pension plans, trusts, and partnerships. Franklin Resources, Inc. was founded in 1947 and is based in San Mateo, California with an additional office in Hyderabad, India. FTD COMPANIES: Figueroa Alleges Violation Under ADA --------------------------------------------------- FTD Companies, Inc. is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Jose Figueroa, on behalf of himself and all others similarly situated, Plaintiff v. FTD Companies, Inc., Defendant, Case No. 1:19-cv-03918 (S.D. N.Y., May 1, 2019). FTD Companies, Inc., together with its subsidiaries, operates as a floral and gifting company primarily in the United States, Canada, the United Kingdom, and the Republic of Ireland. It operates through three segments: U.S. Consumer, Florist, and International.[BN] The Plaintiff is represented by: Joseph H Mizrahi, Esq. Cohen & Mizrahi LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Tel: (917) 299-6612 Fax: (929) 575-4195 Email: joseph@cml.legal FTS INTERNATIONAL: Hagens Berman Files Securities Class Suit ------------------------------------------------------------ Hagens Berman Sobol Shapiro LLP alerts investors in FTS International Inc. (NYSE: FTSI) to the securities class action pending in the Dallas County, Texas District Court. If you purchased or otherwise acquired FTS International securities and suffered losses contact Hagens Berman Sobol Shapiro LLP. For more information about the case click https://www.hbsslaw.com/cases/FTSI or contact Reed Kathrein, who is leading the firm's investigation, by calling 510-725-3000 or emailing FTSI@hbsslaw.com. According to the complaint, Defendants misled investors during FTS' initial public offering by concealing adverse facts about FTS' business including, in part: (a) the Company faced intense and increasing competition; (b) the Company was not positioned to capitalize on increased demand for hydraulic fracturing services but was positioned to lose market share and suffer decelerating revenue growth; and, (c) the Company's spike in revenues from related parties leading up to its IPO offering was temporary. By mid-February 2019, a little more than one year after the Company's IPO, the price of FTS shares had eroded nearly 50%. "We're focused on investors' losses and the extent to which Defendants may have misled investors," said Hagens Berman partner Reed Kathrein. Whistleblowers: Persons with non-public information regarding FTS International should consider their options to help in the investigation or take advantage of the SEC Whistleblower program. Under the new program, whistleblowers who provide original information may receive rewards totaling up to 30 percent of any successful recovery made by the SEC. For more information, call Reed Kathrein at 510-725-3000 or email FTSI@hbsslaw.com. Contact: Reed Kathrein, Esq. Hagens Berman Sobol Shapiro LLP Telphone: 510-725-3000 Website: https://www.hbsslaw.com/cases/FTSI Email: FTSI@hbsslaw.com reed@hbsslaw.com [GN] GEICO GENERAL: 11th Cir. Flips Summary Judgment in A&M Suit ----------------------------------------------------------- In the case, A&M GERBER CHIROPRACTIC LLC, as assignee of Conor Carruthers, on behalf of itself and all others similarly situated, Plaintiff-Appellee, v. GEICO GENERAL INSURANCE COMPANY, Defendant-Appellant, Case No. 17-15606 (11th Cir.), Judge Clyde Roger Vinson of the U.S. Court of Appeals for the Eleventh Circuit reversed the District Court's order granting summary judgment for Gerber. Conor Carruthers was involved in a car accident on March 18, 2015, after which he sought medical services from A&M. At the time, Carruthers was covered under an automobile insurance policy issued by GEICO. Pursuant to Florida's Motor Vehicle No-Fault Law, the policy provided him with $10,000 in personal injury protection ("PIP") benefits. To be entitled to the full $10,000, however, the statute required that Carruthers -- like all PIP beneficiaries -- be diagnosed by an authorized health care provider with an "emergency medical condition"; without such a diagnosis, he was limited to $2,500 in benefits. It is undisputed that Carruthers was not diagnosed with an EMC at the time the case was filed. It is also undisputed that, despite the lack of an EMC finding, GEICO paid Carruthers/Gerber $7,311 in PIP benefits pre-suit, well in excess of the $2,500 cap. Even though Carruthers received almost triple the amount in PIP benefits that he was entitled to, Gerber believed that GEICO had misinterpreted certain language in its automobile policies and that the misinterpretation resulted in GEICO consistently underpaying PIP benefits as a "general business practice." Specifically, the policy contains an endorsement identified as FLPIP (01-13), and that endorsement (under the heading "PAYMENTS WE WILL MAKE") references fee schedules pursuant to which GEICO will pay 80% of benefits that are medically necessary. The endorsement goes on to state: "For all other medical services, supplies, and care GEICO will pay 200% of the allowable amount under a Medicare Part B fee schedule, subject to a limitation of 80% of the maximum reimbursable allowance under workers' compensation." Below that statement, GEICO added the following: "A charge submitted by a provider, for an amount less than the amount allowed above, will be paid in the amount of the charge submitted." The underlying dispute in this case hinges on whether this single sentence is the operative language of the policy for health care provider bills of less than 200% of the fee schedule. GEICO has taken the position that the policy is an "80/20 policy" pursuant to which it was required to pay the lower of 80% of the fee schedule amount or 80% of the charged amount, while insureds are required to pay the remaining 20% as co-insurance. To supports its position, GEICO relied, inter alia, on a document mailed or provided to its PIP policyholders effective on or after Jan. 1, 2013, and identified as M608 (01-13). Shortly after the action was removed to federal court, and while its motion to remand was pending, Gerber filed an amended complaint. The amended complaint was largely the same as the original complaint, but it added another sentence to re-emphasize that "the action does not assert a claim for any monetary relief," and it deleted the request for a declaration that GEICO's misinterpretation of the disputed policy language "constitutes a breach of the insurance Policy." Thus, as amended, the complaint clarified that it only sought declaratory relief and that there was no claim for breach of contract or request for money damages related thereto. In July 2017 -- more than two years after the underlying car accident, and ten months after the litigation was filed -- Carruthers obtained an EMC medical diagnosis. On cross motions for summary judgment, GEICO argued, inter alia, that Gerber lacked standing at the outset of the lawsuit because it was undisputed that GEICO had paid Gerber more than $2,500 before the case was filed, even though he had not been diagnosed with an EMC at that time. By order dated Nov. 17, 2017, the District Court disagreed with GEICO and found there was standing. It also ruled that M608 (01-13) was not an endorsement (but rather was merely a notice) and, thus, it was not part of the policy. Applying a textual interpretation of the FLPIP (01-13) endorsement, the District Court granted summary judgment for Gerber and held that, under the disputed provision, when a health care provider bills for covered services in an amount less than 200% of the fee schedule, GEICO is required to pay the charge as billed without any reduction. GEICO now appeals, arguing that Gerber lacked standing to bring the case. It further argues that the District Court erred in certifying the class; in limiting the documents that comprise the policy (that is, in failing to treat M608 (01-13) as an endorsement); and in ruling for Gerber on the merits as to the policy interpretation question. Judge Vinson holds that whether and to what extent Gerber might be injured is beside the point because the proper inquiry in the case must focus on the potential future injury to Carruthers, not to Gerber or other members of the class. And he can see no potential future threat to Carruthers, other than the possibility that he may someday be in another car accident; sustain an injury entitling him to PIP benefits; and still be insured by GEICO under the same or a similar policy being interpreted the same way, thereby having this issue present itself again. But, that is too contingent to constitute a "substantial likelihood" of future injury. The Judge concludes that the absence of a claim for money damages or substantial likelihood that Carruthers will suffer a future injury -- both of which Gerber was careful to avoid alleging in the case -- Gerber has no standing to pursue the case. He recognizes that the appeal raises an important issue for GEICO's Florida PIP policyholders and for medical providers treating them. And he recognizes, too, that the lawsuit has been pending for several years and has consumed a lot of both judicial and attorney resources. If he could, the Judge would reach the merits and give finality to the questions presented. But he cannot. In the absence of standing, a court is not free to opine in an advisory capacity about the merits of a plaintiff's claims. Again, standing is 'perhaps the most important' jurisdictional doctrine, and, as with any jurisdictional requisite, courts are powerless to hear a case when it is lacking. Because the Court has no jurisdiction to entertain the suit, and neither did the District Court, the decision must be reversed and the case remanded with instructions to dismiss the complaint for lack of standing. A full-text copy of the Court's April 19, 2019 Order is available at https://bit.ly/2w6dIIg from Leagle.com. Mark S. Fistos -- mark@pathtojustice.com -- for Plaintiff-Appellee. Edward H. Zebersky -- ezebersky@zpllp.com -- for Plaintiff-Appellee. Todd S. Payne -- tpayne@zpllp.com -- for Plaintiff-Appellee. Bryan Scott Gowdy -- bgowdy@appellate-firm.com -- for Plaintiff-Appellee. Steven R. Jaffe -- steve@pathtojustice.com -- for Plaintiff-Appellee. Gary M. Farmer, Sr., for Plaintiff-Appellee. Thomas L. Hunker -- thomas.hunker@csklegal.com -- for Defendant-Appellant. Michael Trent Lewenz -- mlewenz@zpllp.com -- for Plaintiff-Appellee. Peter Weinstein -- peter.weinstein@csklegal.com -- for Defendant-Appellant. GENERAL MOTORS: Corvette Owner Sues Over Defective Wheels --------------------------------------------------------- Alanis King, writing for Jalopnik, reports that another class-action lawsuit over the seventh-generation Chevrolet Corvette made it to federal court, but this one isn't about its performance on track. It's, instead, over something that can affect owners anywhere -- certain C7 rims, the lawsuit claims, are prone to cracking and bending at "extremely low mileages." Perhaps most importantly, though, the lawsuit also claims they're also prone to not falling under General Motors' warranty. The April 30 filing, found and written about by Car Complaints, is a class-action complaint on behalf of anyone in the U.S. who bought or leased any 2015 or newer Corvette Z06 models, as well as anyone with 2017 or newer Grand Sport models. The lawsuit claims General Motors knew of "widespread" problems with the rims, has denied the issue, and is "systematically denying coverage" of the wheels under their three-year, 36,000-mile bumper-to-bumper warranties. GM has yet to file a response in court, according to online records, but Jalopnik has reached out to the company for comment on the lawsuit and any response it may have to the allegations. We'll update this story if we hear back. The lawsuit was filed against GM by Anthony Nardizzi, who claims he leased a new 2018 Corvette from Santa Paula Chevrolet in California in June 2018. What happened next, the lawsuit says, wasn't part of the plan: Upon purchasing the vehicle from the dealership, Mr. Nardizzi had the vehicle brought directly to Impression Auto Salon. CalChrome, a third-party wheel finisher, picked up the rims to have them coated. While inspecting the vehicle, CalChrome took a video showing that the rims were bent. Nardizzi, the lawsuit says, replaced the wheels for $7,500 out of pocket. When he complained to the dealership and asked for the wheels to be covered in its bumper-to-bumper warranty, the lawsuit claims the dealership said the wheels were "warped because of Mr. Nardizzi's driving and that GM would not cover any portion of the repair." When he contacted GM directly, it says, GM agreed to cover $1,200 of the $7,500 cost. But for most, the lawsuit claims GM's been blaming the defect on "potholes or other driver error" despite alleged internal data on the problem. The suit claims GM knew about the issue even before Nardizzi's lease, citing numerous forum posts, complaints to the U.S. National Highway Traffic Safety Administration, and a late-2018 Car and Driver story about a 2017 Corvette Grand Sport in their long-term fleet that had three bent wheels at around 6,500 miles. Two were fixed, the story said, but one had to be completely replaced for a crack. Car and Driver also said their wheels weren't covered under warranty, costing $1,119 for repairs. By not covering the repairs, the lawsuit alleges GM's breaching its bumper-to-bumper warranty—citing a line that GM agrees to cover any vehicle defect aside from "slight noise, vibrations, or other normal characteristics of the vehicle due to materials or workmanship occurring during the warranty period." The lawsuit says that had Nardizzi known about the defect, as it claims GM did, he either wouldn't have bought the car or would've paid less. From the lawsuit: Although GM was sufficiently aware of the Rim Defect from preproduction testing, design failure mode analysis, calls to its customer service hotline, and customer complaints made to dealers, this knowledge and information was exclusively in the possession of GM and its network of dealers and, therefore, unavailable to consumers. [...] GM's omissions were material to Plaintiff Nardizzi. Had GM disclosed its knowledge of the Rim Defect before he purchased his Corvette, Plaintiff Nardizzi would have seen and been aware of the disclosures. In addition to the monetary concerns, the lawsuit mentions the potential safety issues with defective wheels -- one NHTSA complaint, it says, involved an owner who noticed a vibration at highway speeds. "Took the vehicle into the dealer and was told that the wheel was bent," the lawsuit quotes the complaint as saying. "Service manager stated that this was happening to many Corvettes and was due to the stiffness of the tire and the weakness of the factory wheel. GM has denied a claim under warranty." Nardizzi's requesting a jury trial, and asking for the court to determine that GM is financially responsible for notifying any affected owners about the defect, a voluntary recall, an amount of damages for Nardizzi and other affected owners to be proven at trial, the costs of attorney fees, and any applicable interest. Until that happens -- if that happens -- it sounds like most owners will just have to pay out of pocket for their repairs.[GN] GLEN MILLS: Former Students File Class Action Over Abuse -------------------------------------------------------- The Associated Press reports that four former students at the nation's oldest reform school have filed a federal class-action lawsuit alleging that they were abused and denied an education. The Juvenile Law Center says the suit against Glen Mills Schools in suburban Philadelphia was filed on April 10. An investigation by The Philadelphia Inquirer this year detailed decades of alleged abuse and cover-ups at the 193-year-old campus. The state revoked all the school's licenses, weeks after ordering all remaining students be removed from the campus about 25 miles west of Philadelphia. Glen Mills spokeswoman Aimee Tysarczyk says the school wasn't aware of the suit until they heard about it in the media. She says attorneys are evaluating the suit. The lawsuit asks for compensation and punitive damages for the plaintiffs, legal fees and other relief. [GN] GLOBAL BROKERAGE: Judge Dismisses Securities Class Action --------------------------------------------------------- Shearman & Sterling LLP, in an article for JDSupra, reports that on March 28, 2019, Judge Ronnie Abrams of the United States District Court for the Southern District of New York largely denied a motion to dismiss a putative class action asserting claims under the Securities Exchange Act of 1934 and Rule 10b-5 thereunder. In re Global Brokerage, Inc., 17-cv-00916 (RA) (S.D.N.Y. Mar. 28, 2019). Plaintiffs principally alleged that defendants, a foreign exchange trading and services company and certain of its executives, made misleading statements or omissions regarding (a) the company's reliance on an agency-trading model and (b) the nature of payments the company received from another company, "Effex," that had been spun-off from the defendant company. The Court had dismissed plaintiffs' prior amended complaint without prejudice, holding, inter alia, that plaintiffs had not adequately alleged scienter. The Court held, however, that plaintiffs' second amended complaint adequately alleged actionable misrepresentations and scienter as to the majority of claims and all but one individual defendant. Plaintiffs alleged that the company falsely claimed to use an agency-trading model whereby it would find the best foreign exchange rate for its customers and treat all market makers the same. In fact, plaintiffs alleged, the company routed the majority of customers' orders to Effex, which held contrary trading positions and paid "kickbacks" tied to its trading profits and losses to the defendants. Slip op. at 8-10. The Court held that plaintiffs sufficiently alleged that defendants were responsible for actionable misstatements that its agency-trading model was "fundamental to [its] core business philosophy" under which it acted as a "credit intermediary, or riskless principal." Id. at 19. While defendants argued that these statements did not imply that all trading providers were treated equally, the Court determined that plaintiffs sufficiently alleged that the company was falsely "leading customers to believe that it was not profiting from taking positions against its customers' interests." Id. at 20. The Court also held that plaintiffs adequately alleged the company made false and misleading statements regarding purported "order flow" payments from Effex to the company. While defendants disclosed generally that the company made payments for order flow, the Court found plaintiffs sufficiently alleged that these statements were misleading because they failed to disclose that the challenged payments were essentially profit-sharing agreements with a single market making company. Id. at 21-22. Plaintiffs also asserted that defendants violated GAAP by failing to disclose Effex as a "Variable Interest Entity" -- because it was allegedly subject to defendants' determination about whether to route customer orders there and was dependent on defendants for business -- or, alternatively, as a "related company" because it had been started by the defendant company, funded with an interest-free loan from it, and shared a close relationship. Id. at 10-11. The Court agreed and held that, although GAAP violations alone, without more, would be insufficient to support a claim for securities fraud, in this case plaintiffs had sufficiently alleged other independent misrepresentations and the alleged GAAP violations did not stand alone. The Court dismissed, however, plaintiffs' claims that regulatory investigations had not been properly disclosed, holding that the company's disclosure that the CFTC was examining the relationship between the company and one of its liquidity providers was sufficient and that the existence of a tolling agreement did not render legal action "highly likely or imminent." Id. at 27-28. The Court also found that plaintiffs had adequately pleaded scienter with respect to two individual defendants who were alleged to have been "heavily involved in the creation and funding" of the market making company, having hired an individual to create the high frequency trading algorithm at issue, provided him with start-up capital, and oversaw the spin-off of the company. Id. at 31-32. However, the Court held that plaintiffs failed to plausibly allege scienter as to another individual defendant, and instead merely stated in conclusory and "boilerplate" fashion that he "must have been aware" as CFO that the order flow payments were, in reality, a form of profit-sharing. Id. at 33. Finally, the Court held that loss causation was adequately alleged and that there was "little doubt" that the disclosure -- which included disclosure of a regulatory settlement and an order that the company effectively stop doing business within the United States -- had an "immediate and tangible effect," as the next day the company's stock allegedly lost half its value and its notes allegedly fell 37%. Id. at 36. [GN] The cases are IN RE GLOBAL BROKERAGE, INC. f/k/a FXCM INC. SECURITIES LITIGATION, Nos. 1:17-cv-00916-RA, 1:17-cv-01028-RA, No.1:17-cv-02506-RA., 1:17-cv-00955-RA (S.D.N.Y.). A full-text copy of the Opinion & Order dated March 28, 2019, is available at https://tinyurl.com/y39azotc from Leagle.com. Tony Khoury, individually, Tony Khoury, on behalf of all others similarly situated & Brian Armstrong, Plaintiffs, represented by Phillip C. Kim, The Rosen Law Firm P.A. 683 CAPITAL PARTNERS, LP, Plaintiff, represented by Phillip C. Kim, The Rosen Law Firm P.A. & Joshua Evan Baker, The Rosen Law Firm, P.A. Ying Zhao, Consolidated Plaintiff, represented by Jeremy Alan Lieberman, Pomerantz LLP & Joseph Alexander Hood, II, Pomerantz LLP. Sergey Regukh, Movant, represented by Matthew Moylan Guiney, Wolf Haldenstein Adler Freeman & Herz LLP & Phillip C. Kim, The Rosen Law Firm P.A. Hany Sikaik, Movant, represented by Roger Alan Sachar, Jr., Newman Ferrara LLP. Thomas Kelly, Movant, represented by Lesley Frank Portnoy, Glancy Prongay & Murray LLP. Adi Damty & Abed Latif, Movants, represented by Jennifer Sarnelli, Gardy & Notis, LLP. Shipco Transport, Inc., Movant, represented by Phillip C. Kim, The Rosen Law Firm P.A. & Joshua Evan Baker, The Rosen Law Firm, P.A. Moshe Ariel, Movant, represented by David Avi Rosenfeld, Robbins Geller Rudman & Dowd LLP. Wendy Howell, Gene Segalis, John Dearborn & Timothy Black, Movants, represented by Jeremy Alan Lieberman, Pomerantz LLP. FXCM Inc., William Ahdout, James Brown, Robin E. Davis, Margaret Deverell, Kenneth Grossman, Arthur Gruen, Eric LeGoff, Janelle G Lester, Bryan Reyhani, David Sakhai, Nicola Santoro, Jr., David S Sassoon, Ryan Silverman & Eduard Yusupov, Defendants, represented by Israel Dahan, King & Spalding LLP, Chelsea Jean Corey, King and Spalding LLP, Evan Claire Ennis, King & Spalding LLP, Paul Richard Bessette, King and Spalding LLP & Peter Joseph Isajiw, King & Spalding LLP. Dror Niv & Ornit Niv, Defendants, represented by Israel Dahan, King & Spalding LLP, Chelsea Jean Corey, King and Spalding LLP, Evan Claire Ennis, King & Spalding LLP, Paul Richard Bessette, King and Spalding LLP, Peter Joseph Isajiw, King & Spalding LLP & Rebecca Matsumura, King & Spalding LLP. Global Brokerage, Inc. f/k/a FXCM Inc., Consolidated Defendant, represented by Chelsea Jean Corey, King and Spalding LLP, Evan Claire Ennis, King & Spalding LLP, Israel Dahan, King & Spalding LLP, Paul Richard Bessette, King and Spalding LLP, Peter Joseph Isajiw, King & Spalding LLP & Rebecca Matsumura, King & Spalding LLP. Kathy Gray, ADR Provider, represented by Thomas James McKenna, Gainey McKenna & Egleston. GREEN TREE INN: Knowles Asserts Breach of ADA in Illinois --------------------------------------------------------- Green Tree Inn, LLC is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Carlton Knowles, on behalf of himself and all others similarly situated, Plaintiff v. Green Tree Inn, LLC, Defendant, Case No. 3:19-cv-00464 (S.D. Ill., April 30, 2019). Green Tree Inn, LLC is a select-service owner, operator and franchisor of the GreenTree Inn hotel brand.[BN] The Plaintiff is represented by: C.K. Lee, Esq. Lee Litigation Group PLLC 30 E39th Street, 2nd Flr. New York, NY 10016-2555 Tel: (212) 465-1188 Email: cklee@leelitigation.com GRIMMWAY ENTERPRISES: Carrillo Files Class Suit in Calif. Ct. ------------------------------------------------------------- A class action lawsuit has been filed against Grimmway Enterprises, Inc. The case is styled as Rhina Beatriz Carrillo, individually, and on behalf of others similarly situated, Plaintiff v. Grimmway Enterprises, Inc., a California Corporation, Grimmway Farm, an Unknown Business Form and Ma Medina Farm Labor Services, Inc., a California Corporation, Defendants, Case No. BCV-19-101196 (Cal. Super., April 30, 2019). The nature of suit is stated as other employment - civil unlimited. Grimmway Enterprises, Inc., doing business as Grimmway Farms, grows, produces, and supplies fruits and vegetables to customers in the United States and internationally. The company offers carrots, potatoes, juice concentrates, and frozen products; and organic products, such as green and red cabbage, lettuces, cauliflower, broccoli, celery, green and red bell peppers, red onions and radishes, leeks, and more. It offers its products through retail partners. The company was founded in 1968 and is based in Bakersfield, California.[BN] The Plaintiff is represented by: Matthew J. Matern, Esq. Matern Law Group, PC - Los Angeles 1230 Rosecrans Ave., Suite 200 Manhattan Beach, CA 90266 Tel: (855) 888-2577 Fax: (310) 531-1901 HEALTHCARE SERVICES: Kirby McInerney Files Securities Fraud Suit ---------------------------------------------------------------- The law firm of Kirby McInerney LLP announces that a class action lawsuit has been filed in the U.S. District Court for the Eastern District of Pennsylvania on behalf of those who acquired Healthcare Services Group, Inc. (NASDAQ: HCSG) securities during the period from April 11, 2017 to March 4, 2019 (the "Class Period"). Investors have until May 21, 2019 to apply to the Court to be appointed as lead plaintiff in the lawsuit. The lawsuit alleges that Healthcare Services Group engaged in a scheme to deceive the market by misrepresenting the value of the Company's business and prospects by overstating its earnings and concealing the significant defects in its internal controls. On March 4, 2019, the Healthcare Services Group disclosed that it would delay the release of its annual report on Form 10-K with the SEC. The Company admitted that it received a letter and subpoena from the SEC asking questions about how the Company calculates its EPS. On this news, shares of Healthcare Services Group fell $4.96 per share, or 13.14%, to close at $32.78 on March 4, 2019. If you acquired Healthcare Services Group securities during the Class Period, have information, or would like to learn more about these claims please: Contact: Thomas W. Elrod, Esq. Kirby McInerney LLP Phone: (212) 371-6600 Website: www.kmllp.com Email: investigations@kmllp.com telrod@kmllp.com [GN] HELIUS MEDICAL: Pomerantz Law Firm Investigates Securities Claims ----------------------------------------------------------------- Pomerantz LLP is investigating claims on behalf of investors of Helius Medical Technologies, Inc. ("Helius" or the "Company") (HSDT). Such investors are advised to contact Robert S. Willoughby at rswilloughby@pomlaw.com or 888-476-6529, ext. 9980. The investigation concerns whether Helius and certain of its officers and/or directors have engaged in securities fraud or other unlawful business practices. On April 10, 2019, Helius disclosed that the U.S. Food and Drug Administration ("FDA") had declined the Company's request for De Novo classification and clearance of its Portable Neuromodulation Stimulator device. The FDA stated that it lacked sufficient data to determine the relative contributions of the device and physical therapy in clinical studies. On this news, Helius's stock price fell $44.11 per share, or 66.18%, to close at $2.10 per share on April 10, 2019, damaging investors. With offices in New York, Chicago, Los Angeles, and Paris, The Pomerantz Firm -- http://www.pomerantzlaw.com-- concentrates its practice 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. CONTACT: Robert S. Willoughby Pomerantz LLP rswilloughby@pomlaw.com [GN] INTEL CORP: Preliminary Settlement Approval Hearing This Month -------------------------------------------------------------- Intel Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on April 26, 2019, for the quarterly period ended March 31, 2019, that the preliminary hearing to approve the settlement of the consolidated class action suit related to the company's acquisition of McAfee, Inc., is scheduled for May 2019. On August 19, 2010, the company announced that it had agreed to acquire all of the common stock of McAfee, Inc. (McAfee) for $48.00 per share. Four McAfee shareholders filed putative class-action lawsuits in Santa Clara County, California Superior Court challenging the proposed transaction. The cases were ordered consolidated in September 2010. Plaintiffs filed an amended complaint that named former McAfee board members, McAfee, and Intel as defendants, and alleged that the McAfee board members breached their fiduciary duties and that McAfee and Intel aided and abetted those breaches of duty. The complaint requested rescission of the merger agreement, such other equitable relief as the court may deem proper, and an award of damages in an unspecified amount. In June 2012, the plaintiffs' damages expert asserted that the value of a McAfee share for the purposes of assessing damages should be $62.08. In January 2012, the court certified the action as a class action, appointed the Central Pension Laborers' Fund to act as the class representative, and scheduled trial to begin in January 2013. In March 2012, defendants filed a petition with the California Court of Appeal for a writ of mandate to reverse the class certification order; the petition was denied in June 2012. In March 2012, at defendants' request, the court held that plaintiffs were not entitled to a jury trial and ordered a bench trial. In April 2012, plaintiffs filed a petition with the California Court of Appeal for a writ of mandate to reverse that order, which the court of appeal denied in July 2012. In August 2012, defendants filed a motion for summary judgment. The trial court granted that motion in November 2012, and entered final judgment in the case in February 2013. In April 2013, plaintiffs appealed the final judgment. The California Court of Appeal heard oral argument in October 2017, and in November 2017, affirmed the judgment as to McAfee's nine outside directors, reversed the judgment as to former McAfee director and chief executive officer David DeWalt, Intel, and McAfee, and affirmed the trial court's ruling that the plaintiffs are not entitled to a jury trial. At a June 2018 case management conference following remand, the Superior Court set an October hearing date for any additional summary judgment motions that may be filed, and set trial to begin in December 2018. In July 2018, plaintiffs filed a motion for leave to amend the complaint, which the court denied in September 2018. Also in July 2018, McAfee and Intel filed a motion for summary judgment on the aiding and abetting claims asserted against them; in October 2018, the court granted the motion as to McAfee and denied the motion as to Intel. The parties agreed in principle to settle the case in late October 2018, and finalized the settlement agreement in March 2019. The settlement agreement calls for an aggregate payment by defendants of $11.7 million. Intel's contribution to the settlement will be immaterial to its financial statements. Plaintiffs filed a motion for preliminary approval of the settlement in March 2019, which is scheduled for hearing in May 2019. Intel Corporation offers computing, networking, data storage, and communication solutions worldwide. It operates through Client Computing Group, Data Center Group, Internet of Things Group, Non-Volatile Memory Solutions Group, Programmable Solutions Group, and All Other segments. The company was founded in 1968 and is based in Santa Clara, California. INTEL CORP: Still Defends Security Vulnerabilities-Related Suits ---------------------------------------------------------------- Intel Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on April 26, 2019, for the quarterly period ended March 31, 2019, that the company continues to defend multiple class action suits related to security vulnerabilities. In June 2017, a Google research team notified the company and other companies that it had identified security vulnerabilities (now commonly referred to as "Spectre" and "Meltdown") that affect many types of microprocessors, including the company's products. As is standard when findings like these are presented, the company worked together with other companies in the industry to verify the research and develop and validate software and firmware updates for impacted technologies. On January 3, 2018, information on the security vulnerabilities was publicly reported, before software and firmware updates to address the vulnerabilities were made widely available. Numerous lawsuits have been filed against Intel and, in certain cases, the company's executives and directors, in U.S. federal and state courts and in certain courts in other countries relating to the Spectre and Meltdown security vulnerabilities, as well as another variant of these vulnerabilities ("Foreshadow") that has since been identified. As of April 24, 2019, 48 consumer class action lawsuits and three securities class action lawsuits have been filed. The consumer class action plaintiffs, who purport to represent various classes of end users of our products, generally claim to have been harmed by Intel's actions and/or omissions in connection with the security vulnerabilities and assert a variety of common law and statutory claims seeking monetary damages and equitable relief. Of the consumer class action lawsuits, 44 have been filed in the U.S., two of which have been dismissed; two have been filed in Canada; and two have been filed in Israel. In April 2018, the U.S. Judicial Panel on Multidistrict Litigation ordered the U.S. consumer class action lawsuits consolidated for pretrial proceedings in the U.S. District Court for the District of Oregon. Intel filed a motion to dismiss that consolidated action in October 2018, and a hearing on that motion was held in February 2019. In the case pending in the Superior Court of Justice of Ontario, an initial status conference has not yet been scheduled. In the case pending in the Superior Court of Justice of Quebec, the court entered an order in October 2018, staying that case for one year. In Israel, both consumer class action lawsuits were filed in the District Court of Haifa. The District Court denied the parties' joint request for a stay in the first case. Intel filed a motion to stay the second case, and a hearing on that motion has been scheduled for July 2019. In the securities class action litigation, the lead securities class action plaintiffs, who purport to represent classes of acquirers of Intel stock between October 27, 2017 and January 9, 2018, generally allege that Intel and certain officers violated securities laws by making statements about Intel's products that were revealed to be false or misleading by the disclosure of the security vulnerabilities. The securities class actions have been consolidated and are pending in the U.S. District Court for the Northern District of California. Defendants filed a motion to dismiss those actions in August 2018, which the court granted in March 2019. The court's order granted plaintiffs leave to amend their complaint, but in April 2019 plaintiffs notified the court that they would not re-plead or appeal. Defendants subsequently filed a motion for entry of final judgment, which is set for hearing in May 2019. Additional lawsuits and claims may be asserted on behalf of customers and shareholders seeking monetary damages or other related relief. We dispute the claims described above and intend to defend the lawsuits vigorously. Intel said, "Given the procedural posture and the nature of these cases, including that the proceedings are in the early stages, that alleged damages have not been specified, that uncertainty exists as to the likelihood of a class or classes being certified or the ultimate size of any class or classes if certified, and that there are significant factual and legal issues to be resolved, we are unable to make a reasonable estimate of the potential loss or range of losses, if any, that might arise from these matters." Intel Corporation offers computing, networking, data storage, and communication solutions worldwide. It operates through Client Computing Group, Data Center Group, Internet of Things Group, Non-Volatile Memory Solutions Group, Programmable Solutions Group, and All Other segments. The company was founded in 1968 and is based in Santa Clara, California. IOOF HOLDINGS: Faces Shareholder Class Action in New South Wales ---------------------------------------------------------------- James Mickleboro, writing for The Motley Fool, reports that the embattled financial services company The IOOF Holdings Limited revealed that it has been served with a class action. This certainly is disappointing news for current shareholders considering the IOOF share price is already down 33% since this time last year. What is the class action? Late on April 12 IOOF announced that it has been served with a class action proceeding filed by Quinn Emanuel Urquhart & Sullivan in the Supreme Court of New South Wales on behalf of certain shareholders of IOOF who acquired shares between May 27 2015 and August 9 2018. According to the class action's website, Quinn Emanuel's claim against IOOF arises from evidence given by the wealth manager at the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry. The evidence concerned breaches by IOOF's subsidiaries, and directors and officers, of their obligations as superannuation trustees. Following these revelations at the Royal Commission, and the announcement of various proceedings against IOOF's subsidiaries and officers related to those breaches by APRA, IOOF shares lost over 35% of their value. Quinn Emanuel alleges that between May 27 2015 and August 9 2018 IOOF contravened its continuous disclosure obligations under the ASX Listing Rules and engaged in misleading or deceptive conduct. IOOF has called the class action "speculative and without foundation" and reiterated that it takes its continuous disclosure obligations seriously. Adding that it "does not engage in misleading or deceptive conduct. IOOF intends to defend this claim." [GN] JONES DAY: Responds to Gender Discrimination Class Action --------------------------------------------------------- Debra Cassens Weiss, writing for ABA Journal, reports that Jones Day is responding to a gender bias lawsuit with a statement that cites an "inclusive culture" and a partnership that includes 240 women. A $200 million lawsuit filed April 3 had alleged that the firm has a "fraternity culture" in which female lawyers have to participate if they hope to get ahead. The would-be class action said female associates at Jones Day are discriminated against based on gender, pregnancy and maternity. The suit criticized the firm's secretive system in which partnership and pay decisions are made by the managing partner. Statistics tell a different story, according to Jones Day. The majority of female partners at the firm are mothers who took family leaves and often worked flexible schedules, the statement says. The American Lawyer reports that female lawyers make up just over 26% of the Jones Day partnership, based on a count of 919 partners provided to the publication in 2018. That's slightly more than the average of 23.36% reported for the nation's major law firms in 2018 by the National Association for Law Placement. Jones Day cited these statistics: * Eighteen out of 35 U.S. lawyers promoted to partnership in January were women, and almost three-quarters of them had taken or were on family leave at the time of promotion. In January 2018, 14 out of 33 U.S. lawyers promoted to partnership were women, and 71% of them had taken family leave. * Almost 70% of the U.S. women promoted to partnership over the past decade had taken or were on family leave at the time of their promotion to partnership. * Seventeen of the firm's offices and regions, including its largest region, are led by female partners, almost all of whom have children. * The firm's 17-member partnership committee, which advises on partner admissions and compensation, has five women, all of whom took family leave while working at Jones Day. * The firm's largest practice group is co-chaired by a female trial lawyer, and its issues and appeals practice is chaired by a female partner who became the practice leader while working part time. "These statistics belie the recent claims of six former associates (four unnamed) that women -- and, in particular, women who take family leave -- cannot succeed at Jones Day," the statement said. "The claims of pay discrimination -- made only 'on information and belief,' without any factual support -- are equally without merit. The distorted picture of the firm portrayed in the complaint is not Jones Day. We will litigate this case in court, not in the media, and are confident we will prevail." The new lawsuit was filed by Sanford Heisler Sharp, which also filed a gender bias lawsuit against the law firm last year on behalf of a fired partner. [GN] KERN RIDGE: Carrillo Files Class Suit in Calif. Ct. --------------------------------------------------- A class action lawsuit has been filed against Kern Ridge Growers, LLC. The case is styled as Rhina Beatriz Carrillo, individually, and on behalf of others similarly situated, Plaintiff v. Kern Ridge Growers, LLC, a California limited liability company, Kern Ridge Growers, Inc., a California Corporation and MA Medina Farm Labor Services, Inc., a California Corporation, Defendants, Case No. BCV-19-101197 (Cal. Super., April 30, 2019). The nature of suit is stated as other employment - civil unlimited. Kern Ridge Growers, LLC produces, packs, markets, and distributes conventional and organic grown carrots. The company offers organic and conventional carrots, peppers and chili peppers, and citrus fruits. It serves customers through sales representatives. Kern Ridge Growers, LLC was founded in 1973 and is based in Arvin, California. The company ships its carrots to export markets from Canada to Mexico and Dubai.[BN] The Plaintiff is represented by: Matthew J. Matern, Esq. Matern Law Group, PC - Los Angeles 1230 Rosecrans Ave., Suite 200 Manhattan Beach, CA 90266 Tel: (855) 888-2577 Fax: (310) 531-1901 LA CARETTA: Diners File Class Action Lawsuit Over Norovirus ----------------------------------------------------------- Live 5 News Web Staff reports that three people who say they got norovirus after eating at a Summerville Mexican restaurant in 2018 have now filed a class action lawsuit on behalf of all the people who got sick after eating there last November and December. The suit states that La Caretta is liable for all damages for each person who ate and got sick at the restaurant in the 1500 block of Old Trolley Road. According to the lawsuit, La Carreta knew or should have known the the food was unfit or unreasonably dangerous to eat. The three people are seeking punitive and actual damages from the restaurant. According to a report released by the South Carolina Department of Health and Environmental Control, the restaurant had temporarily closed on Dec. 5 after 10 people became ill. At the time of the closure, a sign on the front door of the business stated,"Voluntarily closing until further notice. Sorry for the inconvenience. -Management." The restaurant was reopened two weeks later. DHEC then released their full findings in which they reported more than 280 complaints were submitted to DHEC's Food Safety Complaint system. According to DHEC, a single complainant may involve multiple individuals. Following the initial complaints, authorities said there was an attempt to contact each complainant requesting that each person potentially impacted complete an online survey. Officials say a total of 332 people completed the survey in which 290 people reported becoming sick after eating at the restaurant and 42 patrons said they did not have any signs of illness. In addition, six patrons provided samples for testing, and each tested positive for norovirus, according to DHEC's report. During the initial stages of the investigation, DHEC officials said the symptoms suggested a "viral gastrointestinal illness" which is contagious and can cause vomiting and diarrhea. Infection can be spread by direct contact with an ill person, consuming contaminated food or beverage, and or touching contaminated surfaces. DHEC made an on-site visit on Dec. 5, and instructed the management regarding a recommended thorough, deep cleaning of the restaurant and exclusion of any ill employees. [GN] LET'S EAT OUT: Settlement in Cope Labor Suit Has Prelim Approval ---------------------------------------------------------------- In the case, OLIVIA COPE, on behalf of herself and all others similarly situated, known and unknown, Plaintiff, v. LET'S EAT OUT, INCORPORATED d/b/a BUFFALO WILD WINGS, JEREMY BOYER, individually, JAMES BRUNO, Individually, BRUNO MANAGEMENT COMPANY, INC., BRUNO ENTERPRISES, INC. TOO, WING BACKS, INC., SOONERS OR LATER, INC., HOT TEX, INC., and SPREADING OUR WINGS, INC. Defendants, Case No. 6:16-cv-03050-SRB (W.D. Mo.), Judge Stephen R. Bough of the U.S. District Court for the Western District of Missouri, Southern Division, granted Cope's motion for preliminary approval of the Settlement. After having read and considered the Settlement Agreement, the exhibits attached to it, and the briefing submitted in support of preliminary approval of the Settlement, Judge Bough preliminarily approved the Parties' Settlement as fair, reasonable and adequate. He finds that the notice of the Settlement to the Class Members is justified because the Parties have shown that the Court will likely be able to approve the Settlement Agreement under Rule 23(e)(2) and will likely be able to certify the Settlement Classes for purposes of judgment, since the Classes were already certified during the course of the litigation. He also finds that he will likely be able to certify the following Settlement Classes pursuant to Fed. R. Civ. P. 23: a. All current and former servers and bartenders working at any of the Defendants' Buffalo Wild Wings restaurants in Missouri who, at any time from Feb. 10, 2014 until May 31, 2015, were paid sub-minimum, tip-credit rates of pay ("Missouri Minimum Wage Act Class"); and b. All current and former servers and bartenders working at any of the Defendants' Buffalo Wild Wings restaurants who, at any time from Feb. 10, 2011 until May 31, 2015, were paid sub-minimum, tip-credit rates of pay ("Missouri Common Law Class"). These Settlement Classes are proper and coextensive with the Classes that were previously certified by the Court pursuant to Rule 23 on May 10, 2017. The Judge approved the formulas for allocation of settlement payments set forth in the Settlement Agreement as a fair and reasonable method for calculating and distributing the settlement payments to the Class Representative, the Class Members, and the Opt-in Plaintiffs. Douglas M. Werman, Sarah J. Arendt, and Zachary C. Flowerree of Werman Salas P.C. and Rowdy B. Meeks of Rowdy Meeks Legal Group LLC will serve as the Class Counsel, and Plaintiff Olivia Cope will serve as the Class Representative. The Judge approved RG2 Claims Administration LLC to act as the Settlement Administrator pursuant to the Settlement Agreement. He approved, as to form and content, the Notice of Settlement attached as Exhibit C to the Settlement Agreement, and the Class Notice and the Claim Form attached as Exhibit D to the Settlement Agreement. Within 60 days of the initial mailing of the Class Notice, the Class Members who wish to receive a settlement award must fill out and return a Claim Form, either electronically or by mail, to the Settlement Administrator. A Final Approval Hearing will be held before the Court on Sept. 5, 2019, at 10:00 a.m. At the Final Approval Hearing, the Court will determine whether the proposed Settlement, and any application for a Service Award and Attorney's Fees and Costs, will be approved. All papers in support of the Settlement will be filed no later than seven days before the Final Approval Hearing. A full-text copy of the Court's April 17, 2019 Order is available at https://is.gd/wr2yTt from Leagle.com. Olivia Cope, On behalf of Herself and All Others Similarly Situated, Plaintiff, represented by Douglas M. Werman -- dwerman@flsalaw.com -- pro hac vice, Sarah J. Arendt -- sarendt@flsalaw.com -- pro hac vice, Zachary C. Flowerree -- zflowerree@flsalaw.com -- pro hac vice & Rowdy B. Meeks -- Rowdy.Meeks@rmlegalgroup.com -- Rowdy Meeks Legal Group LLC. Let's Eat Out, Incorporated, doing business as Buffalo Wild Wings, Defendant, represented byKirsten A. Milton -- Kirsten.Milton@jacksonlewis.com -- Jackson Lewis PC, pro hac vice, Kyle B. Russell -- Kyle.Russell@jacksonlewis.com -- Jackson Lewis PC & Paul DeCamp -- PDeCamp@ebglaw.com -- Epstein, Becker & Green, PC, pro hac vice. Jeremy Boyer, individually, Bruno Management Company, Inc., Bruno Enterprises, Inc. Too, Wing Backs, Inc., Sooners or Later, Inc., Hot Tex, Inc. & Spreading Our Wings, Inc., Defendants, represented by Kirsten A. Milton, Jackson Lewis PC, pro hac vice, Kyle B. Russell, Jackson Lewis PC & Ryan P. Lessmann, Jackson Lewis PC, pro hac vice. James Bruno, Defendant, represented by Kyle B. Russell, Jackson Lewis PC & Ryan P. Lessmann, Jackson Lewis PC, pro hac vice. LION BIOTECH: Allocation Plan of Net Rabkin Settlement Fund Granted ------------------------------------------------------------------- In the case, JAY RABKIN, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. LION BIOTECHNOLOGIES, INC., MANISH SINGH, MICHAEL HANDELMAN, and KAMILLA BJORLIN, Defendants, Case No. 3:17-cv-02086-SI (N.D. Cal.), Judge Susan Illston of the U.S. District Court for the Northern District of California, San Francisco Division, approved the Lead Plaintiff's proposed plan of allocation of the Net Settlement Fund. The matter came on for hearing on April 12, 2019 on the Lead Plaintiff's motion to determine whether the proposed Plan of Allocation created by the Settlement should be approved. Having considered and determined the fairness and reasonableness of the proposed Plan of Allocation, Judge Illstons approved the Plan of Allocation. Her Order incorporates by reference the definitions in the Stipulation of Settlement and Release dated as of Sept. 28, 2018. Pursuant to and in compliance with Rule 23 of the Federal Rules of Civil Procedure, the Judge finds and concludes that due and adequate notice was directed to the Settlement Class Members. An aggregate of 21,240 copies of the Notice were mailed to the potential Settlement Class Members and nominees, and there are no objections to the Plan of Allocation. The formula for the calculation of the claims of Claimants as set forth in the Plan of Allocation provides a fair and reasonable basis upon which to allocate the proceeds of the Net Settlement Fund among the Settlement Class Members. The Plan of Allocation is, in all respects, fair and reasonable to the Settlement Class. Any appeal or any challenge affecting the Judge approval regarding any plan of allocation of the Net Settlement Fund will in no way disturb or affect the finality of the Judgment. There is no just reason for delay in the entry of the Order, and immediate entry by the Clerk of the Court is expressly directed. A full-text copy of the Court's April 17, 2019 Order is available at https://is.gd/0wSrsK from Leagle.com. Leonard Desilvio, Individually and on behalf of all others similarly situated, Plaintiff, represented by Laurence M. Rosen -- lrosen@rosenlegal.com -- The Rosen Law Firm, P.A.. Jay Rabkin, Individually and on Behalf of All Others Similary Situated, Plaintiff, represented by Eli Greenstein -- egreenstein@ktmc.com -- Kessler Topaz Meltzer & Check, LLP, Geoffrey C. Jarvis, Kessler Topaz Meltzer & Check, LLP, Jennifer Lauren Joost, Kessler Topaz Meltzer and Check LLP, Megan Koneski, Kessler Topaz Meltzer Check, LLP, Naumon A. Amjed -- namjed@ktmc.com -- Kessler Topaz Meltzer Check, LLP, Paul Aaron Breucop, Kessler Topaz Meltzer & Check, LLP & Ryan Thomas Degnan -- rdegnan@ktmc.com -- Kessler Topaz Meltzer Check, LLP. LION BIOTECHNOLOGIES, INC., also known as Iovance Biotherapeutics, Inc. & MICHAEL HANDELMAN, Defendants, represented by Norman J. Blears -- NBLEARS@SIDLEY.COM -- Sidley Austin LLP, Matthew James Dolan -- MDOLAN@SIDLEY.COM -- Sidley Austin LLP, Robin Eve Wechkin -- RWECHKIN@SIDLEY.COM -- Sidley Austin LLP & Sara B. Brody -- SBRODY@SIDLEY.COM -- Sidley Austin LLP. MANISH SINGH, Defendant, represented by Francisca Minghao Mok, Reed Smith LLP & James Lohman Sanders, Reed Smith LLP. KAMILLA BJORLIN, Defendant, represented by Edward Gartenberg, Gartenberg Gelfand Hayton & Selden LLP & Brett E. Heeger, Gartenberg Gelfand Hayton LLP. The Lion Investor Group, Movant, represented by Lesley F. Portnoy -- lportnoy@glancylaw.com -- Glancy Prongay & Murray LLP. Su Yee Lynn Ho, Sriram Sundareswaran, Manfred E. Strauch & Kevin Fong, Movants, represented by Jennifer Pafiti -- jpafiti@pomlaw.com -- Pomerantz LLP & Jeremy A. Lieberman -- jalieberman@pomlaw.com -- Pomerantz LLP. LION BIOTECH: Rabkin Securities Suit Settlement Has Final Approval ------------------------------------------------------------------ In the case, JAY RABKIN, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. LION BIOTECHNOLOGIES, INC., MANISH SINGH, MICHAEL HANDELMAN, and KAMILLA BJORLIN, Defendants, Case No. 3:17-cv-02086-SI (N.D. Cal.), Judge Susan Illston of the U.S. District Court for the Northern District of California, San Francisco Division, granted final approval of the Settlement. The Parties have entered into the Stipulation of Settlement and Release dated Sept. 28, 2018, that provides for a complete dismissal with prejudice of the claims asserted against the Defendants in the Action on the terms and conditions set forth in the Stipulation, subject to the approval of the Court. By Order dated Nov. 30, 2018, the Court: (a) preliminarily approved the Settlement; (b) provisionally certified the Settlement Class solely for the purpose of effectuating the Settlement; (c) directed that notice of the proposed Settlement be provided to the Settlement Class Members; (d) provided the Settlement Class Members with the opportunity either to exclude themselves from the Settlement Class or to object to the Settlement; and (e) scheduled a hearing regarding final approval of the Settlement. Due and adequate notice has been given to the Settlement Class. Judge Illston conducted a hearing on April 12, 2019. Having reviewed and considered the Stipulation, all papers filed and proceedings held herein in connection with the Settlement, all oral and written comments received regarding the Settlement, and the record in the Action, she finally certified, solely for purposes of effectuating the Settlement, the Action as a class action on behalf of a Settlement Class defined as all persons and entities who purchased or otherwise acquired Lion common stock between Sept. 27, 2013 and April 10, 2017, inclusive, and who were damaged thereby. The Lead Plaintiff is appointed as the Settlement Class Representative, and Kessler Topaz Meltzer & Check, LLP, as the Settlement Class Lead Counsel. Pursuant to, and in accordance with, Rule 23 of the Federal Rules of Civil Procedure, the Judge fully and finally approved the Settlement set forth in the Stipulation in all respects (including, without limitation: the amount of the Settlement; the Releases provided for therein; and the dismissal with prejudice of the claims asserted against the Defendants in the Action), and finds that the Settlement is, in all respects, fair, reasonable, and adequate to the Settlement Class. The Action and all of the claims asserted against the Defendants in the Action by the Lead Plaintiff and the other Settlement Class Members are dismissed with prejudice. The Parties will bear their own costs and expenses, except as otherwise expressly provided in the Stipulation. Separate orders will be entered regarding approval of a plan of allocation and the motion of the Lead Counsel for an award of attorneys' fees and reimbursement of Litigation Expenses. Such orders will in no way affect or delay the finality of the Judgment and will not affect or delay the Effective Date of the Settlement. There is no just reason to delay the entry of the Judgment and immediate entry by the Clerk of the Court is expressly directed. A full-text copy of the Court's April 17, 2019 Order is available at https://is.gd/Klz9hm from Leagle.com. Leonard Desilvio, Individually and on behalf of all others similarly situated, Plaintiff, represented by Laurence M. Rosen -- lrosen@rosenlegal.com -- The Rosen Law Firm, P.A.. Jay Rabkin, Individually and on Behalf of All Others Similary Situated, Plaintiff, represented by Eli Greenstein -- egreenstein@ktmc.com -- Kessler Topaz Meltzer & Check, LLP, Geoffrey C. Jarvis, Kessler Topaz Meltzer & Check, LLP, Jennifer Lauren Joost, Kessler Topaz Meltzer and Check LLP, Megan Koneski, Kessler Topaz Meltzer Check, LLP, Naumon A. Amjed -- namjed@ktmc.com -- Kessler Topaz Meltzer Check, LLP, Paul Aaron Breucop, Kessler Topaz Meltzer & Check, LLP & Ryan Thomas Degnan -- rdegnan@ktmc.com -- Kessler Topaz Meltzer Check, LLP. LION BIOTECHNOLOGIES, INC., also known as Iovance Biotherapeutics, Inc. & MICHAEL HANDELMAN, Defendants, represented by Norman J. Blears -- NBLEARS@SIDLEY.COM -- Sidley Austin LLP, Matthew James Dolan -- MDOLAN@SIDLEY.COM -- Sidley Austin LLP, Robin Eve Wechkin -- RWECHKIN@SIDLEY.COM -- Sidley Austin LLP & Sara B. Brody -- SBRODY@SIDLEY.COM -- Sidley Austin LLP. MANISH SINGH, Defendant, represented by Francisca Minghao Mok, Reed Smith LLP & James Lohman Sanders, Reed Smith LLP. KAMILLA BJORLIN, Defendant, represented by Edward Gartenberg, Gartenberg Gelfand Hayton & Selden LLP & Brett E. Heeger, Gartenberg Gelfand Hayton LLP. The Lion Investor Group, Movant, represented by Lesley F. Portnoy -- lportnoy@glancylaw.com -- Glancy Prongay & Murray LLP. Su Yee Lynn Ho, Sriram Sundareswaran, Manfred E. Strauch & Kevin Fong, Movants, represented by Jennifer Pafiti -- jpafiti@pomlaw.com -- Pomerantz LLP & Jeremy A. Lieberman -- jalieberman@pomlaw.com -- Pomerantz LLP. LOGMEIN INC: Continues to Defend Wasson Class Suit -------------------------------------------------- LogMeIn, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on April 26, 2019, for the quarterly period ended March 31, 2019, that the company continues to defend a securities class action suit entitled, Wasson v. LogMeIn, Inc. et al. On August 20, 2018, a securities class action lawsuit, referred to herein as the Securities Class Action, was initiated by purported stockholders of the Company in the U.S. District Court for the Central District of California against the Company and certain of its officers, entitled Wasson v. LogMeIn, Inc. et al. (Case No. 2:18-cv-07285). On November 6, 2018 the case was transferred to the District of Massachusetts (Case No. 1:18-cv-12330). The lawsuit asserts claims under Sections 10(b) and 20(a) of the Securities and Exchange Act of 1934 based on alleged misstatements or omissions concerning renewal rates for the Company's subscription contracts. The Company believes the lawsuit lacks merit and intends to defend it vigorously. No further updates were provided in the Company's SEC report. LogMeIn, Inc. provides a portfolio of cloud-based communication and collaboration, identity and access, and customer engagement and support solutions. LogMeIn, Inc. was founded in 2003 and is headquartered in Boston, Massachusetts with additional locations in North America, South America, Europe, Asia, and Australia. M.J. BROTHERS: Hearing on Rodriguez Deal Prelim Approval Vacated ---------------------------------------------------------------- In the case, VICTOR RODRIGUEZ, et al., Plaintiffs, v. M.J. BROTHERS, INC., et al., Defendants, Case No. 1:18-cv-00252-LJO-SAB (E.D. Cal.), Magistrate Judge Stanley A. Boone of the U.S. District Court for the Eastern District of California vacated the April 24, 2019 hearing on the Plaintiffs' motion for preliminary approval of a class action settlement. Currently before the Court is the Plaintiffs' motion which was continued to April 24, 2019. On April 17, 2019, the Plaintiff filed supplemental briefing addressing issues raised in a findings and recommendations that has since been vacated. Having reviewed the record, the Magistrate finds the matter suitable for decision without oral argument. Accordingly, he vacated the previously scheduled hearing set on April 24, 2019, iand the parties need not appear at that time. A full-text copy of the Court's April 19, 2019 Order is available at https://bit.ly/2W7Ahuv from Leagle.com. Victor Rodriguez, on behalf of themselves and all others similarly situated, Estreberto Valdez, on behalf of themselves and all others similarly situated, Miguel Esparza, on behalf of themselves and all others similarly situated & Francisco Banda, on behalf of themselves and all others similarly situated, Plaintiffs, represented by John Edward Hill, Law Offices Of John E. Hill, A Professional Corporation & Enrique Martinez, Law Offices of John E. Hill. M.J. Brothers, Inc., a California Corporation, Eduardo Martin, Daniel Martin, Fernando Martin & Ronald Martin, Defendants, represented by Faith Lisle Driscoll -- fdriscoll@theemployerslawfirm.com -- Barsamian & Moody, Patrick Moody -- pmoody@theemployerslawfirm.com -- Barsamian and Moody & Ronald H. Barsamian -- ronbarsamian@aol.com -- Barsamian & Moody. MAGNUM REAL ESTATE: Fischler Asserts Breach of ADA -------------------------------------------------- Magnum Real Estate Group LLC is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Brian Fischler, individually and on behalf of all other persons similarly situated, Plaintiff v. Magnum Real Estate Group LLC doing business as: 196 Orchard, Defendant, Case No. 1:19-cv-03833 (S.D. N.Y., April 30, 2019). Magnum Real Estate Group LLC develops and manages condominiums and residential properties. The company is based in New York, New York.[BN] The Plaintiff is represented by: Christopher Howard Lowe, Esq. Lipsky Lowe LLP 630 Third Avenue New York, NY 10017-6705 Tel: (212) 392-4772 Fax: (212) 444-1030 Email: chris@lipskylowe.com MARKEL CORP: Reveals Internal Review Findings Amid Class Action --------------------------------------------------------------- Andrew G. Simpson, writing for Insurance Journal, reports that Markel Corp. said that an internal review conducted by outside counsel found "no evidence that personnel of its CATCo unit acted in bad faith in exercising business judgment in the setting of reserves and making related disclosures during late 2017 and early 2018." Last December, Markel reported that the U.S. Department of Justice, U.S. Securities and Exchange Commission and Bermuda Monetary Authority were conducting inquiries into loss reserves recorded in late 2017 and early 2018 at Markel CATCo Investment Management Ltd. and its subsidiaries. The inquiries are limited to CATCo and do not involve the company or its other subsidiaries. Markel retained outside counsel to conduct an internal review. The company said its outside counsel has met with the U.S. and Bermuda government authorities and reported the findings from the internal review. Markel said it continues to fully cooperate with the inquiries and does not know at this time the duration or results. CATCo Investment Management manages portfolios of investments linked to reinsurance risks accessed through its reinsurance company, Markel CATCo Re. Markel Corp. previously reported that the internal review into the loss reserves led to the disclosure of a personal relationship between two CATCo executives that Markel said violated company policy. The two are no longer with the company. The fired executives, Anthony Belisle, Markel CATCo's former chief executive officer, and Alissa Fredricks, Markel CATCo's former chief executive officer for Bermuda, have sued Markel over the firing, claiming they violated no company policy in effect at the time. They allege the company amended its personnel policy just days before their termination but after millions of dollars in bonuses had vested, in an apparent attempt to create a justification for the firings. The two allege they are owed $77 million. Markel is also facing a potential class action shareholder lawsuit over the reserve statements that are being investigated. New York law firm Bragar Eagel & Squire in mid-January said it filed the class action U.S. District Court for the Southern District of New York on behalf of purchasers of Markel Corp. securities between July 26, 2017 and December 6, 2018. [GN] MATTEL INC: Continues to Defend Calif. Consolidated Class Suit -------------------------------------------------------------- Mattel, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on April 26, 2019, for the quarterly period ended March 31, 2019, that the company continues to defend a consolidated class action suit pending before the U.S. District Court for the Central District of California A purported class action lawsuit is pending in the United States District Court for the Central District of California, (consolidating Waterford Township Police & Fire Retirement System v. Mattel, Inc., et al., filed June 27, 2017; and Lathe v. Mattel, Inc., et al., filed July 6, 2017) against Mattel, Christopher A. Sinclair, Richard Dickson, Kevin M. Farr, and Joseph B. Johnson alleging federal securities laws violations in connection with statements allegedly made by the defendants during the period October 20, 2016 through April 20, 2017. In general, the lawsuit asserts allegations that the defendants artificially inflated Mattel's common stock price by knowingly making materially false and misleading statements and omissions to the investing public about retail customer inventory, the alignment between point-of-sale and shipping data, and Mattel's overall financial condition. The lawsuit alleges that the defendants' conduct caused the plaintiff and other stockholders to purchase Mattel common stock at artificially inflated prices. On May 24, 2018, the Court granted Mattel's motion to dismiss the class action lawsuit, and on June 25, 2018, the plaintiff filed a motion informing the Court he would not be filing an amended complaint. Judgment was entered in favor of Mattel and the individual defendants on September 19, 2018. The plaintiff filed his Notice of Appeal on October 16, 2018 and his opening appellate brief on February 25, 2019. Mattel, Inc., a children's entertainment company, designs and produces toys and consumer products worldwide. The company operates through North America, International, and American Girl segments. The company was founded in 1945 and is headquartered in El Segundo, California. MATTEL INC: Faces Class Suits Related to Fisher-Price Sleeper ------------------------------------------------------------- Mattel, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on April 26, 2019, for the quarterly period ended March 31, 2019, that the company and Fisher-Price, Inc. are facing class action suits related to the Fisher-Price Rock 'n Play Sleeper. Purported class action lawsuits against Fisher-Price, Inc. and Mattel, Inc. have been filed in the United States District Courts for the Western District of New York (Drover-Mundy, et. al. v. Fisher-Price, Inc., et al., filed April 18, 2019, and Mulvey v. Fisher-Price, Inc., et al., filed April 19, 2019), the District of New Jersey (Kimmel v. Fisher-Price, Inc., et al., filed April 11, 2019), and the Central District of California (Black v. Mattel, Inc., et al., filed April 23, 2019). The lawsuits assert claims for false advertising, negligent product design, breach of warranty, fraud, and other claims in connection with the marketing and sale of the Fisher-Price Rock 'n Play Sleeper (the "Sleeper"). In general, the lawsuits allege that the Sleeper should not have been marketed and sold as safe and fit for prolonged and overnight sleep for infants. The lawsuits propose consumer classes comprised of those who purchased the Sleeper as marketed as safe for prolonged and overnight sleep, and/or a class of all children who sustained an injury or death due to the alleged defective design of the Sleeper, and their parents. The lawsuits purport to certify classes nationwide and in particular states, and seek unspecified compensatory damages, punitive damages, statutory damages, restitution, disgorgement, attorneys' fees, costs, interest, declaratory relief, and/or injunctive relief. Mattel believes that the allegations in the lawsuits are without merit and intends to vigorously defend against them. A reasonable estimate of the amount of any possible loss or range of loss cannot be made at this time. A fifth purported class action seeking to certify a consumer class, and seeking similar remedies, has been threatened against Fisher-Price and Mattel but has not yet been filed. Mattel, Inc., a children's entertainment company, designs and produces toys and consumer products worldwide. The company operates through North America, International, and American Girl segments. The company was founded in 1945 and is headquartered in El Segundo, California. MATTEL INC: Wyatt Class Action Ongoing -------------------------------------- Mattel, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on April 26, 2019, for the quarterly period ended March 31, 2019, that the company continues to defend a purported class action suit entitled, Wyatt v. Mattel, Inc., et al. A purported class action lawsuit is pending in the United States District Court for the Central District of California (Wyatt v. Mattel, Inc., et al., filed March 6, 2019) against Mattel, Ynon Kreiz, and Joseph J. Euteneuer alleging federal securities laws violations in connection with statements allegedly made by the defendants during the period February 7, 2019 through February 15, 2019. In general, the lawsuit alleges that the defendants artificially inflated Mattel's common stock price by knowingly making materially false and misleading statements and omissions to the investing public about demand for and supply of Mattel's products and the impact on Mattel's business, operations, and prospects for 2019. The lawsuit alleges that the defendants' conduct caused the plaintiff and other stockholders to purchase Mattel common stock at artificially inflated prices. The lawsuit seeks unspecified compensatory damages, attorneys' fees, expert fees, and/or costs. Mattel believes that the allegations in the lawsuit are without merit and intends to vigorously defend against them. A reasonable estimate of the amount of any possible loss or range of loss cannot be made at this time. Mattel, Inc., a children's entertainment company, designs and produces toys and consumer products worldwide. The company operates through North America, International, and American Girl segments. The company was founded in 1945 and is headquartered in El Segundo, California. MDL 2286: Reconsideration of Arbitration Order in TCPA Suit Denied ------------------------------------------------------------------ In the case, IN RE: MIDLAND CREDIT MANAGEMENT, INC. TELEPHONE CONSUMER PROTECTION LITIGATION, Case No. 11md2286-MMA (MDD), No. 16cv2157-MMA (MDD)., 16cv2768-MMA (MDD) (S.D. Cal.), Judge Michael M. Anello of the U.S. District Court for the Southern District of California denied the Plaintiffs' motion for reconsideration of the Court's order granting the Defendants' motion to compel arbitration of the Plaintiffs' claims on an individual basis. Lead Plaintiffs William Baker, Curtis Bentley, and Emir Fetai, bring the putative class action for alleged violations of the Telephone Consumer Protection Act ("TCPA"). The Plaintiffs each opened a credit card account with Citibank, N.A. Both credit card agreements contain a South Dakota choice-of-law provision and identical arbitration agreements. The credit card agreements also state that they may assign any or all of their rights and obligations under the Agreement to a third party. Citibank ultimately sold both accounts to Midland. The bills of sale and assignment state that Citibank assigned to Midland both of the Plaintiffs' accounts. The purchase and sale agreements governing those sales state that Citibank assigned to Midland all right, title, and interest in the Plaintiffs' accounts. On Jan. 31, 2019, the Court granted in part Defendants Midland Funding, LLC, Midland Credit Management, Inc. ("MCM"), and Encore Capital Group's motion to compel Bentley and Baker ("Plaintiffs") to arbitrate their individual claims, strike class allegations, and stay the case pursuant to the Federal Arbitration Act ("FAA"). Specifically, the Court granted the Defendants' motion to compel arbitration of the Plaintiffs' claims on an individual basis, stayed their individual member actions, denied the Defendants' request to stay the putative class action in the Multi-District Litigation ("MDL"), and denied the Defendants' request to strike class allegations. The Plaintiffs move for reconsideration of the Court's Order, or alternatively, for certification for immediate interlocutory appeal. They contend the Court committed clear error in four ways: (1) finding that Citibank could retain and assign its right to arbitrate; (2) finding the credit card agreements govern the relationship between the parties; (3) considering the redacted Purchase and Sale Agreements attached to Defendants' reply; and (4) interpreting the plain language of the arbitration agreements. Mtn. at 4. Defendants oppose each of these assertions. The Defendants filed a response in opposition, to which the Plaintiffs replied. Judge Anello finds that he is not left with the definite and firm conviction that a mistake has been committed and, therefore, the Plaintiffs have not shown clear error or manifest injustice. The Plaintiffs have not provided the Court with any legal basis to find manifest error or law in its interpretation of the plain language of the arbitration agreements. It was not clear error for the Court to find that Citibank assigned the right to compel arbitration to Midland based on the documents the Defendants proffered. The Plaintiffs' arguments do not alter that decision and the Court is not "left with the definite and firm conviction" that it erred in finding that Citibank assigned its right to compel arbitration to Midland. Accordingly, the Judge denied the Plaintiffs' motion for reconsideration. The Plaintiffs argue if the Court does not grant their motion for reconsideration, it should certify its Order for interlocutory appeal. The Judge holds that the Plaintiffs have not proven the requirements of 28 U.S.C. Section 1292(b). The proceeding to rbitration, as opposed to certification of interlocutory appeal, will advance the termination of the Plaintiffs individual member cases. Further, as noted by the Defendants, the MDL putative class action will proceed with the third named Plaintiff, Mr. Fetai, regardless of whether the Plaintiffs individual member actions are arbitrated. As such, the Judge denied the Plaintiffs' request to certify the Court's Order for interlocutory appeal. Based on the foregoing, Judge Anello denied the Plaintiffs' motion. The parties are to proceed to arbitration as per the Court's prior Order. The Plaintiffs' individual member actions (16cv2157-MMA (MDD) and 16cv2768-MMA (MDD)) remain stayed and administratively closed. A full-text copy of the Court's April 17, 2019 Order is available at https://is.gd/X3V40q from Leagle.com. William Baker, Individually and on Behalf of All Others Similarly Situated, Plaintiff, represented by David E. Bower -- dbower@monteverdelaw.com -- Monteverde & Associates P.C. Midland Credit Management Inc., Midland Funding LLC & Encore Capital Group, Inc., Defendants, represented by Amy M. Gallegos -- agallegos@jenner.com -- Jenner & Block LLP & Edward D. Totino -- edward.totino@dlapiper.com -- DLA Piper LLP. MID-CENTURY INSURANCE: Halford Files Insurance-related Class Action ------------------------------------------------------------------- A class action lawsuit has been filed against Mid-Century Insurance Company. The case is styled as Todd Halford, individually and on behalf of all others similarly situated, Plaintiff v. Mid-Century Insurance Company, Defendant, Case No. 1:19-cv-01077-JDB-jay (W.D. Tenn., May 1, 2019). The docket of the case states the nature of suit as Insurance asserting Diversity-Breach of Contract. MID-Century Insurance Company provides insurance services.[BN] The Plaintiff is represented by: James Brandon McWherter, Esq. GILBERT RUSSELL MCWHERTER SCOTT BOBBITT PLC 341 Cool Springs Blvd., Suite 230 Franklin, TN 37067 Tel: (615) 354-1144 Fax: (731) 664-1540 Email: bmcwherter@gilbertfirm.com MULTICARE HEALTH: Cadiz Denied Leave to Proceed in Forma Pauperis ----------------------------------------------------------------- In the case, TASI Q. CADIZ, Plaintiff, v. MULTICARE HEALTH SYSTEM, Defendant, Case No. C19-5244 RBL (W.D. Wash.), Judge Ronald B. Leighton of the U.S. District Court for the Western District of Washington, Tacoma, denied Cadiz's Motion for Leave to Proceed in forma pauperis. The matter is before the Court on Cadiz's Motion, supported by his proposed complaint. Cadiz seeks to sue Multicare for breach of contract negligence harassment/retaliation and civil rights violations. It appears he also seeks to represent a class of similarly situated persons. The basis for Cadiz's claims is not at all clear from his complaint. It appears that he was using a Multicare restroom near its emergency room when someone opened the door, exposing him. He was ultimately asked to leave. The rest of the 44-page complaint is filled with conclusory statements about Multicare's obligations and intentions, filled with adjectives and legal citations, but no facts. Judge Leighton holds that Cadiz's proposed complaint does not meet the plausibility standard. He has not identified any individual who did anything to him, or explained why what they did violated any of his contractual or constitutional or other rights, or how it amounted to actionable discrimination. The Judge also holds that as a pre so litigant, Cadiz may represent himself, only; he cannot represent a class of similarly situated people, even if a corporation's employee's opening a restroom door was the sort of claim that could otherwise lead to a class action against the corporation. In light of the foergoing, Judge Leighton denied Cadiz's Motion for leave to proceed in forma pauperis. Cadiz will pay the filing fee or file an amended complaint within 21 days of the Order, or the case will be dismissed. Any amended complaint should focus on the "who, what, when, where, and why" of a factual story. Acres of adjectives, legal citations, and conclusory statements are not required and are not enough to state a viable claim. His complaint should identify who did what to him, when where and why, and then plausibly articulate why that conduct is actionable in the Court. The incident he has described thus far does not state a plausible claim. A full-text copy of the Court's April 19, 2019 Order is available at https://bit.ly/2HqkjUp from Leagle.com. Tasi Q. Cadiz, Plaintiff, pro se. NABRIVA THERAPEUTICS: Schall Law Firm Files Securities Fraud Suit ----------------------------------------------------------------- The Schall Law Firm, a national shareholder rights litigation firm, announces the filing of a class action lawsuit against Nabriva Therapeutics plc (NASDAQ: NBRV) for violations of Sec. 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder by the U.S. Securities and Exchange Commission. Investors who purchased the Company's shares between November 1, 2018 and April 30, 2019, inclusive (the "Class Period"), are encouraged to contact the firm before July 8, 2019. We also encourage you to contact Brian Schall, or Sherin Mahdavian, of the Schall Law Firm, 1880 Century Park East, Suite 404, Los Angeles, CA 90067, at 424-303-1964, to discuss your rights free of charge. You can also reach us through the firm's website at www.schallfirm.com, or by email at brian@schallfirm.com. The class, in this case, has not yet been certified, and until certification occurs, you are not represented by an attorney. If you choose to take no action, you can remain an absent class member. According to the Complaint, the Company made false and misleading statements to the market. Nabriva's manufacturers were incapable of maintaining good manufacturing practices. Because these manufacturers would be subject to inspection as part of the Company's New Drug Application for CONTEPO with the FDA. The poor manufacturing practices were likely to hurt the chances of the New Drug Application to be approved. Based on these facts, the Company's public statements were false and materially misleading throughout the class period. When the market learned the truth about Nabriva, investors suffered damages. Join the case to recover your losses. Contact: Brian Schall, Esq. Sherin Mahdavian, Esq. The Schall Law Firm 1880 Century Park East, Suite 404 Los Angeles, CA 90067 Tel: 310-301-3335 Website: www.schallfirm.com Email: info@schallfirm.com brian@schallfirm.com [GN] NATIONAL IMAGING: 3d Cir. Affirms Dismissal of Mauthe TCPA Suit --------------------------------------------------------------- In the case, ROBERT W. MAUTHE, M.D., P.C., INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, Appellant, v. NATIONAL IMAGING ASSOCIATES, INC, Case No. 18-2119 (3d Cir.), Judge Morton Ira Greenberg of the U.S. Court of Appeals for the Third Circuit affirmed the District Court's dismissal under Fed. R. Civ. P. 12(b)(6) of Mauthe's class-action complaint under the Telephone Consumer Protection Act ("TCPA"), entered on April 25, 2018. On Sept. 23, 2014, Mauthe received a satisfaction survey relating to the quality of its services, via fax, from the Defendant. Mauthe alleges that he did not have an established business relationship with defendant, implying that he did not know why the Defendant sent the survey to him. Mauthe charges that the fax was an unsolicited advertisement that the Defendant sent to him in violation of the TCPA because it contained the Defendant's name, promoted the quality of its services, and referred its recipient to a website to which he could send his responses to the questions in the survey. Mauthe also alleges that the fax was a pretext to increase awareness and use of the Defendant's healthcare management services and to increase traffic to its website, www.RadMD.com. He alleges that at least 39 other similarly-situated persons or entities received the fax, and he sought to advance a class-action claim against the Defendant, for each person or entity that was sent one or more telephone facsimile messages about healthcare services available through www.RadMD.com. Judge Greenberg understands Mauthe's real theory behind his claim, that the Defendant may have intentionally sent the fax survey to dozens of recipients unsolicited as some sort of nonobvious promotion of its services. However, even though the complaint makes generalized class action allegations, it does not specifically identify a single recipient of the fax that Mauthe received without solicitation, by a recipient other than Mauthe. If the complaint had included explicit factual allegations of other identified individuals receiving this fax survey without solicitation that circumstance might have been material to the analysis, but it did not make such explicit allegations. Thus, the theory of liability based on a nonobvious promotion of tge Defendant's services through the sending of multiple faxes is a mere conclusory statement rather than a factual allegation. In fact, based on the factual allegations in the complaint, the Judge finds that it was just as plausible that the Defendant sent the fax to Mauthe by mistake, and not because it was attempting to make a sale to him. Even construing the complaint in the light most favorable to Mauthe, his allegations did not raise his TCPA claim above the speculative level. Accordingly, Judge Greenberg finds that the District Court did not err in holding that the fax survey was not an advertisement, and he affirmed its April 25, 2018 dismissal order. A full-text copy of the Court's April 17, 2019 Opinion is available at https://is.gd/tGw5IP from Leagle.com. Phillip A. Bock -- phil@classlawyers.com -- (argued), Daniel J. Cohen, David M. Oppenheim -- david@classlawyers.com -- Bock Hatch Lewis & Oppenheim, 134 North La Salle Street, Suite 1000, Chicago, IL 60602. Richard E. Shenkan -- rshenkan@shenkanlaw.com -- Shenkan Injury Lawyers LLC, 6550 Lakeshore Street, West Bloomfield, MI 48323, Attorneys for Appellant. Michael E. Baughman -- baughmanm@pepperlaw.com -- (argued), Pepper Hamilton, 3000 Two Logan Square, 18th and Arch Streets, Philadelphia, PA 19103. Eric S. Merin -- merine@pepperlaw.com -- 777 South 20th Street, Philadelphia, PA 19146, Attorneys for Appellee. NCAA: Grant-in-Aid Cap Antitrust Suit Settlement/Fee Award Affirmed ------------------------------------------------------------------- The U.S. Court of Appeals for the Ninth Circuit affirmed the district court's approval of the settlement and fee award in the case, In re: NATIONAL COLLEGIATE ATHLETIC ASSOCIATION ATHLETIC GRANT-IN-AID CAP ANTITRUST LITIGATION (This document relates to ALL ACTIONS except Jenkins v. Nat'l Collegiate Athletic Ass'n, N.D. Cal. No. 14-cv-278-CW), SHAWNE ALSTON; et al., Plaintiffs-Appellees, DARRIN DUNCAN, Objector-Appellant, v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, The NCAA; et al., Defendants-Appellees, No. 18-15054 (9th Cir.). In the underlying class action, student athletes who attended Division I schools challenge a NCAA bylaw that capped the maximum grant-in-aid at less than the full cost of attendance at those schools. In January of 2015, after the Plaintiffs filed suit, the NCAA amended its bylaws to allow member schools to provide up to the full cost of attendance in athletic aid. As to the Plaintiffs' damage claims, the parties reached a settlement that requires defendants to pay $208,664,445 to some 53,000 class members. After deducting attorneys' fees and expenses, the average recovery for the class members who played sports for four years is approximately $6,000. The district court approved the settlement of the Plaintiffs' damage claims and awarded $41,732,889 in attorneys' fees and $3,184,274.38 in expenses. Class member Darrin Duncan objected to the fee award and now appeals the district court's approval of the settlement and fee award. The Appellate Court finds that Duncan appealed the district court's approval of the settlement. His briefs, however, do not challenge the settlement generally, but instead concern only the district court's award of attorneys' fees. The Plaintiffs ask the Court to impose sanctions on that basis, arguing that the appeal of the settlement approval has not actually been prosecuted and is delaying the distribution of funds to class members. But to address this concern, the Plaintiffs could have moved the district court to require Duncan to post an appeal bond. Moreover, the Court finds that although the Plaintiffs contend that Duncan's appeal is unrelated to the district court's settlement approval, it has held that attorneys' fees provisions included in proposed class action settlement agreements are, like every other aspect of such agreements, subject to the determination whether the settlement is 'fundamentally fair, adequate, and reasonable,' and so the reasonableness of the settlement is not wholly distinct from the reasonableness of attorneys' fees, as the Plaintiffs suggest. The Court therefore disagrees that Duncan's appeal of the approval settlement was purely vexatious, and so denied the motion for sanctions. It accordingly affirmed. A full-text copy of the Court's April 17, 2019 Memorandum is available at https://is.gd/dzQcUv from Leagle.com. NEW ENGLAND FITNESS: Summary Judgment in Kauffman Suit Reversed --------------------------------------------------------------- In the case, JOSEPH KAUFFMAN, JR., and KRYSTAL KAUFFMAN, on behalf of themselves and other persons similarly situated, Plaintiffs-Respondents, v. NEW ENGLAND FITNESS SOUTH, INC., d/b/a PLANET FITNESS, Defendant-Appellant, Case No. A-1789-17T1 (N.J. Super. App. Div.), the Superior Court of New Jersey, Appellate Division, (i) reversed the trial court's orders granting summary judgment to the Plaintiff and the class certification; and (ii) remanded for the trial court to enter judgment in favor of the Defendant. The Plaintiffs filed the putative class action, alleging an exculpatory clause in the Defendant's health club membership agreement violated the Truth-in-Consumer Contract, Warranty and Notice Act ("TCCWNA"). Plaintiff Krystal Kauffman entered into a membership agreement with Defendant Planet Fitness, to join its health club facility. The agreement contained an exculpatory clause releasing defendant from liability for any injury sustained while using the facility. Fifteen months later, Krystal cancelled her membership because of financial difficulties. She had used the health club 10 times. During that time, she did not sustain any injury while using the equipment, the locker room facilities, or walking through the Defendant's parking lot. Therefore, the exculpatory clause was never invoked against her. In their complaint, the Plaintiffs alleged the Defendant violated the TCCWNA, the Health Club Services Act ("HCSA"), and the Consumer Fraud Act ("CFA"). The crux of the complaint alleged the Defendant's membership agreement violated the clearly established rights of the Plaintiffs and members of the putative class because it contained an overly broad exculpatory clause. Thereafter, the Plaintiffs moved to certify a class consisting of all people who signed a membership agreement with the Defendant during a seven-year timeframe. The Plaintiffs also moved for partial summary judgment as to liability on their TCCWNA claim and violations of the HCSA. In turn, the Defendant filed a motion for partial summary judgment, claiming the exculpatory clause in the membership agreement did not violate a clearly established legal right as required under the TCCWNA. The trial judge found Krystal had standing to pursue her TCCWNA action because she signed the membership agreement and was subject to its terms, making her an aggrieved consumer within the meaning of the statute. However, because Joseph did not enter into a written contract with the Defendant for membership at the club, he was not an aggrieved consumer and, therefore, did not have standing to pursue a TCCWNA claim. The Judge also determined the exculpatory clause in the membership agreement violated a clearly established legal right under state law. He relied on Martinez-Santiago v. Pub. Storage, to support his conclusion that the responsibility of a seller was clearly established with regard to premises liability to business invitees. Orders were entered granting summary judgment to Krystal as to liability on her TCCWNA claim, granting class certification, appointing Krystal as the class representative, and granting the Defendant's summary judgment motion as to Joseph's action. The Court granted the Defendant leave to file an interlocutory appeal and stayed all further proceedings pending the Supreme Court's issuance of a decision in Spade v. Select Comfort Corp. Following the April 16, 2018 Spade opinion, the Court lifted the stay, and with the guidance and clarification provided in the Supreme Court's ruling, it considered the Defendant's appeal. The Court holds that it is undisputed that Krystal did not suffer any physical harm while using the Defendant's facility. Although she claimed the Defendant did not maintain its parking lot properly in the winter, she did not slip or fall or suffer any adverse consequence from the alleged poor maintenance. Moreover, Krystal admitted at her deposition she had "no gripe with Planet Fitness." Rather, she seeks damages and class certification because she signed a membership agreement that included an exculpatory clause. In the aftermath of Spade, Krystal's assertions are not sufficient to deem her an "aggrieved consumer" under the TCCWNA. The exculpatory clause was never invoked against her. Her proofs do not establish she suffered any adverse consequences from executing the agreement. Rather, she fits the scenario of the consumer described by the Supreme Court in Spade who executed a contract that violated a clearly established legal right, but received its furniture on schedule and as ordered. That consumer, who incurred no monetary damages or adverse consequences suffered no harm and is not an aggrieved consumer. Neither is Krystal. Because Krystal lacks standing under the TCCWNA, she cannot be the named representative of the proposed class. It is well established that, in order to bring a class action lawsuit, the named representative must individually have standing to bring their claims. Without standing, the Plaintiffs' putative class action is improper, because the Plaintiff herself lacks standing as a member of the putative class. For these reasons, the Court reversed the orders granting summary judgment to the Plaintiff and the class certification. It remanded for the trial court to enter judgment in favor of the Defendant. A full-text copy of the Court's April 17, 2019 Opinion is available at https://is.gd/ZwH5EH from Leagle.com. Anthony R. Twardowski -- artwardowski@zarwin.com -- (Zarwin, Baum, DeVito, Kaplan, Schaer & Toddy, PC,) of the Pennsylvania bar, admitted pro hac vice, argued the cause for appellant (Zarwin, Baum, DeVito, Kaplan, Schaer & Toddy, PC, and Anthony R. Twardowski, attorneys; Eitan D. Blanc -- edblanc@zarwin.com -- and Anthony R. Twardowski, on the briefs). Charles N. Riley -- criley@lockslaw.com -- argued the cause for respondents (Locks Law Firm, LLC, and Law Office of Charles N. Riley, LLC, attorneys; Michael A. Galpern, Andrew P. Bell, James A. Barry -- jbarry@lockslaw.com -- and Charles N. Riley, on the brief). NEW JERSEY: Court Narrows Claims in Special Education Suit ---------------------------------------------------------- In the case, J.A., individually and on behalf of J.A., a minor child, and on behalf of all others similarly situated, Plaintiffs, v. MONROE TOWNSHIP BOARD OF EDUCATION, NEW JERSEY DEPARTMENT OF EDUCATION, LAMONT REPOLLET Acting Commissioner of Education, NEW JERSEY OFFICE OF ADMINISTRATIVE LAW, JEFFREY R WILSON Administrative Law Judge, Defendants, Case No. 1:18-cv-09580-NLH-KMW (D. N.J.), Judge Noel H. Hillman of the U.S. District Court for the District of New Jersey (i) granted in part and denied in part the Defendants' motions to dismiss the Plaintiffs' complaint; and (ii) granted in part the Plaintiffs' motion to file an amended complaint. J.A. is 11-years old and disabled. The primary diagnosis is autism with other secondary diagnoses. She is eligible for special education and related services under the Individuals with Disabilities Education Act ("IDEA"), and protection under Section 504 of the Rehabilitation Act; the Americans with Disabilities Act ("ADA"); New Jersey's Special Education Law; and the New Jersey Law Against Discrimination ("NJLAD"). J.A. lives with her parents, J.A. and J.A., in Gloucester County, New Jersey. On May 3, 3016, an individualized education program ("IEP") was implemented for her at Oak Knoll Elementary School in the Monroe Township Board of Education ("MTBOE") school district. The IEP was amended on May 9, 2017 for the following year. J.A.'s parents were dissatisfied with how MTBOE handled the May 3, 2016 IEP, and they were further dissatisfied with the May 9, 2017 IEP. As a result, on May 24, 2017, the J.A. family filed a Request for Due Process Hearing with the New Jersey Department of Education ("NJDOE") Office of Special Education Programs ("OSEP"). The IDEA guarantees that every child with a disability receive a free appropriate public education ("FAPE") from her public school if that school receives federal funding. One of the IDEA's procedural safeguards guaranteed to children with disabilities and their parents is an opportunity for any party to present a due process complaint with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child. From the date of filing the due process complaint, the parties have 30 days within which to settle or otherwise resolve the dispute. This so-called "resolution period" totals 30 days, and if the case is not resolved, it proceeds to a hearing. Thereafter, if no adjournments are sought and granted, a final decision must be rendered within 45 days after the end of the 30-day resolution period ("45 Day Rule"). The New Jersey DOE OSEP provides an essentially identical procedure. The Plaintiffs claim that the state Defendants have violated the 45 Day Rule in their individual situation because as of the date they filed their complaint in the Court -- May 23, 2018 -- their administrative case was still pending, and they would not have another hearing before the ALJ until June 11, 2018, which was 383 days from the end of the resolution period and well beyond the 45 Day Rule. In addition, or as an adjunct, to their individual case, the Plaintiffs have advanced a putative class action pursuant to Federal Civil Procedure Rule 23 for alleged systemic due process violations arising from the way New Jersey adjudicates FAPE disputes between families and local schools. More specifically, the class claims are asserted on behalf of themselves and all persons who filed Requests for Due Process Hearings ("DP Complaints") for violations of special education laws with the NJDOE during the period Jan. 1, 2011 through March 23, 2018 and who, after the case was transferred to the OAL, did not receive a decision within 45 days. The Plaintiffs also advance class action claims against the state Defendants alleging that NJDOE's use of the OAL as the adjudicative body to resolve special education disputes is systemically flawed because assigned ALJs lack training, knowledge, and jurisdiction (Counts One through Four). The Plaintiffs' individual claims focus on the May 2017 Due Process Complaint, claiming that J.A. has been denied a FAPE in violation of the IDEA, Rehabilitation Act, ADA, and NJLAD. They seek judicial review of the ALJ's denial of their Motion to Amend their Request for a Due Process Hearing, Motion for Independent Educational Evaluations ("IEEs"), and Motion to Strike (Counts Five through Eleven) When the Plaintiffs filed their complaint, their Due Process Complaint before the OAL was still pending. On Oct. 10, 2018, they filed a second action in the Court, Civil Action 18-14838, regarding a subsequent decision by the ALJ regarding their May 2017 Due Process Complaint and another consolidated Due Process Complaint. In the second case, the Plaintiffs appeal the ALJ's Oct. 2, 2018 Order denying their Motion to Preclude Evidence based on MTBOE's alleged violation of the "5 Day Exchange Rule" in contravention of the IDEA and the NJAC. Currently pending before the Court are the Defendants' motions to dismiss the Plaintiffs' complaint. The Defendants argue, among other points, that because of the ongoing nature of the Plaintiffs' Due Process Complaint in the administrative forum, the Plaintiffs' claims should be dismissed for failure to exhaust administrative remedies. Also pending is the Plaintiffs' motion to file an amended complaint in order to add additional named Plaintiffs as the class representatives. Judge Hillman finds that the Plaintiffs have asserted two different cases in one -- a putative class action against the state Defendants for alleged systemic problems with compliance with the 45 Day Rule and a challenge to hearing officer qualifications, coupled and intertwined with an individual appeal of J.A.'s personal due process complaints regarding her claim against MTBOE that she has been denied FAPE. In the view of the Judge, the two cannot proceed together. With regard to the Plaintiffs' individual claims, the Judge finds that the Plaintiffs' continuation of the May 2017 Due Process Complaint after filing the suit, as well as the filing of a second Due Process Complaint and proceeding with a consolidated Due Process Complaint before the OAL, warrants the dismissal of the Plaintiffs' individual claims. Those claims, which necessarily turn on the individual and unique circumstances of J.A.'s due process complaints, are plainly unexhausted and must be dismissed. In contrast, the Plaintiffs' claims of systematic failure fall within a clear exception to the exhaustion requirement and will be allowed to proceed in the Court. On balance, and to promote the orderly consideration of the Plaintiffs' systemic claims, the Judge deems it best to deny the state Defendants' motion in that regard without prejudice pending the Plaintiffs' submission of an amended class action complaint consistent with the Opinion, applicable pleading standards and jurisdictional constraints. In sum, Judge Hillam ordered the following: (1) The Plaintiffs' claims against MTBOE and the state Defendants regarding J.A.'s individual due process complaints will be dismissed for failure to exhaust administrative remedies (Count Five - Appeal Pursuant to 20 U.S.C. Section 1415(i) against Defendants MTBOE, ALJ Wilson - Motion to Amend DP Complaint; Count Six - Appeal Pursuant to 20 U.S.C. Section 1415(i) against Defendants MTBOE, ALJ Wilson - Motion for IEEs; Count Seven - Appeal Pursuant to 20 U.S.C. Section 1415(i) against Defendants MTBOE, ALJ Wilson - Motion to Strike; Count Eight - Denial of FAPE against MTBOE; Count Nine - Violation of Section 504 against MTBOE; Count Ten - Violation of ADA against MTBOE; Count Eleven - Vilation of NJLAD against MTBOE); (2) Plaintiffs' putative class action claims against the state Defendants for their alleged violations of the 45 Day Rule and for their claim that hearing officers are not properly qualified may proceed (Count One - Class Action - Systemic Violation of the 45-Day Rule as a Denial of FAPE against Defendants NJDOE, Repollet, OAL, and ALJ Wilson; Count Two - Class Action - Systemic Violation of Hearing Officer Qualifications against Defendants NJDOE, Repollet, OAL, and ALJ Wilson; Count Three - Class Action - Declaratory Judgment against Defendants NJDOE, Repollet, OAL, and ALJ Wilson; Count Four - Class Action - Violation of Plaintiffs' Rights Under 42 U.S.C. Section 1983 against Defendants NJDOE, Repollet, OAL, and ALJ Wilson); and (3) The Plaintiffs may file an amended class action complaint to include the additional named class members; but (4) The Plaintiffs will only advance claims on behalf of individuals who have the proper standing to advance such claims; and (5) The state Defendants retain their right to challenge the Plaintiffs' amended complaint by way of a renewed motion to dismiss on any grounds not resolved in the Opinion. A full-text copy of the Court's April 19, 2019 Opinion is available at https://bit.ly/2w3ZBD5 from Leagle.com. J. A. & J. A., individually and on behalf of J.A., a minor child, and on behalf of all others similarly situated, Plaintiffs, represented by ROBERT CRAIG THURSTON -- info@thurstonlawpc.com -- Thurston Law Offices LLC. MONROE TOWNSHIP BOARD OF EDUCATION, Defendant, represented by WILLIAM S. DONIO -- wdonio@cooperlevenson.com -- COOPER LEVENSON, P.A. NEW JERSEY DEPARTMENT OF EDUCATION, LAMONT REPOLLET, Acting Commissioner of Education, NEW JERSEY OFFICE OF ADMINISTRATIVE LAW & JEFFREY R WILSON, Administrative Law Judge, Defendants, represented by CAROLINE GENETT JONES, STATE OF NEW JERSEY OFFICE OF THE ATTORNEY GENERAL & LAUREN AMY JENSEN, STATE OF NEW JERSEY OFFICE OF THE ATTORNEY GENERAL. NEW YORK WHEEL: Gilbane Building Co Files Class Suit in New York ---------------------------------------------------------------- A class action lawsuit has been filed against New York Wheel LLC. The case is styled as Gilbane Building Company, individually and on behalf of all others similarly situated, Plaintiff v. New York Wheel LLC, New York Wheel Owner LLC, New York Wheel Investor LLC, Richard A. Marin and Andrew Ratner, Defendants, Case No. 151051/2019 (N.Y. Sup., May 1, 2019). The New York Wheel was a proposed 630-foot-tall giant Ferris wheel to be located at St. George in Staten Island, New York City. It was to be located alongside the site of the proposed Empire Outlets retail complex.[BN] The Plaintiff is represented by: ERNSTROM & DRESTE, LLP, Esq. 925 CLINTON SQUARE ROCHESTER, NY 14604 Tel: (585) 473-3100 The Defendant is represented by: GREENBERG TRAGER & HERBST 767 3RD AVENUE, 12TH FLOOR NEW YORK, NY 10017 Tel: (212) 688-1900 NIO INC: Robbins Arroyo Files Securities Fraud Class Suit --------------------------------------------------------- Shareholder rights law firm Robbins Arroyo LLP announces that purchasers of Nio Inc. (NYSE: NIO) filed a class action complaint against the company for alleged violations of the Securities and Exchange Act of 1934 between January 10, 2019 and March 5, 2019. Nio designs, manufactures, and sells electric vehicles in the People's Republic of China, the U.S., Germany, and the U.K. Nio Accused of Inflating Company's Outlook Amid Decreasing Demand and Disappointing Sales According to the complaint, on January 10, 2019, Nio represented that it had exceeded its 2018 delivery goal of its premium electric vehicles. On March 5, 2019, defendants disclosed the truth - that sales were declining and material negative trends would negatively impact Nio's sales and revenues through at least the second quarter 2019. Nio had delivered just 1,805 ES8 vehicles in January 2019, a 45% decline from December 2018, and just 811 ES8 vehicles in February 2019, a 55% decline from January 2019. Over two days of trading, Nio's ADSs declined over 30% to close at just $7.09 on March 7, 2019, and continues to decline. Nio Shareholders Have Legal Options Concerned shareholders who would like more information about their rights and potential remedies can contact attorney Leo Kandinov at (800) 350-6003, LKandinov@robbinsarroyo.com, or via the shareholder information form on the firm's website. Contact: Leo Kandinov, Esq. Robbins Arroyo LLP 5040 Shoreham Place San Diego, CA 92122 Telephone: (619) 525-3990 Toll Free: (800) 350-6003 Website: www.robbinsarroyo.com Email: LKandinov@robbinsarroyo.com [GN] NORTHEAST ILLINOIS REGIONAL: Cary Hits Illegal Discharge -------------------------------------------------------- Countess Cary, on behalf of herself and similarly situated individuals, Plaintiff, v. Northeast Illinois Regional Commuter Railroad Corporation, Defendants, Case No. 19-cv-03014, (N.D. Ill., May 3, 2019), seeks compensation for the extra hour at the minimum wage rate for each shift lasting more than ten hours and the two 15-minute breaks as mandated by New York labor law. Northeast Illinois Regional Commuter Railroad Corporation operates as "Metra," a commuter rail system serving Cook, DuPage, Will, Lake, Kane and McHenry counties in Northeastern Illinois where Cary, a 61-year old African American woman, worked from 1998 until October 2018 as Director of Equal Employment Opportunity and Employee Relations. She claims that she was constructively discharged after an extended period of discrimination, harassment and retaliation. [BN] Plaintiff is represented by: Linda Debra Friedman, Esq. STOWELL & FRIEDMAN, LTD. 303 W. Madison St., Suite 2600 Chicago, IL 60606 Tel: (312) 431-0888 Email: lfriedman@sftld.com NORTHLAND GROUP: George Files FDCPA Suit in North Carolina ---------------------------------------------------------- A class action lawsuit has been filed against Northland Group, Inc. The case is styled as Bernard L. George, individually and on behalf of all others similarly situated, Plaintiff v. Northland Group, Inc. and Radius Global Solutions, LLC, Defendants, Case No. 3:19-cv-00207 (W.D. N.C., May 1, 2019). The docket of the case states the nature of suit as Consumer Credit filed pursuant to the Fair Debt Collection Practices Act. Northland Group, Inc. provides accounts receivable management and collection services to national credit grantors, debt buyers, and student loan lenders and servicers. The company was founded in 1982 and is based in Edina, Minnesota.[BN] The Plaintiff is represented by: Arthur H. Piervincenti, Esq. Arthur H. Piervincenti, P.A. 631-200B Brawley School Road, Box 225 Mooresville, NC 28117 Tel: (704) 997-9529 Fax: (704) 230-0413 Email: arthur@lawahp.com ONECOIN LTD: Silver Miller Files Class Suit Over Pyramid Scheme --------------------------------------------------------------- Cali Haaning, writing for Crowdfund Insider, reports that lawyers at the Silver Miller law firm have filed a class action suit against founders and pervaders of OneCoin, an alleged global cryptocurrency pyramid scheme that bilked investors out of an estimated $4 billion dollars. Ruja Ignatova, Konstantin Ignatov, Sebastian Greenwood and Mark Scott are named as defendants in the suit. Konstantin Ignatov was arrested March 6, 2019, at the Los Angeles International Airport and charged with wire fraud conspiracy for marketing OneCoin, "a fraudulent cryptocurrency… operat(ing) as a multi-level marketing network through which members receive commissions for recruiting others to purchase cryptocurrency packages." Ignatov's sister, Ruja Ignatov, was also charged with wire fraud, securities fraud, and money laundering in absentia. She remains at large. Ruja Ignatova disappeared in October 2017 around the same time she was indicted in the US. At the time, her absence was explained as "maternity leave" by remaining OneCoin leadership. She has not been seen since. In the press release announcing Konstantin Ignatov's arrest, New York County District Attorney, Cyrus R. Vance, Jr., stated: "As alleged in the indictment, these defendants executed an old-school pyramid scheme on a new-school platform, compromising the integrity of New York's financial system and defrauding investors out of billions. Our Office urges all crypto investors to scrutinize investment opportunities, recognize the prevalence of fraud in this underregulated space, and proceed with caution." Investigators allege that OneCoin possessed no valid public blockchain and that, "…the value of OneCoin is determined internally and is not based on market supply and demand." Despite the lack of fundamentals, "The purported value of a OneCoin has steadily grown from EUR0.50 to approximately EUR29.95 per coin, as of January 2019." The Ignatov's are originally from Bulgaria, and OneCoin originated there. The US Department of Justice claims Ignatova was well aware of the fraudulent nature of her undertaking, and once, ". . . described her thoughts on the 'exit strategy' for OneCoin. The first option (was) . . . 'Take the money and run and blame someone else for this . . .'" If detained and convicted, Ignatova, 38, could face up to 25 years in prison. Her bother, Konstantin, 33, faces a maximum of 20 years in prison. The class action filing against OneCoin submitted by Silver Miller describes OneCoin as: ". . . (A) purported cryptocurrency that never really existed, on a blockchain that never really existed, born from mining farms that never really existed, yet fraudulently sold to investors throughout the world through a densely-packed multi-level-marketing system that ultimately amassed a reported Four Billion Dollars ($4,000,000,000.00) in revenues." The filing also details OneCoin promotions in the United States, which the firm says began in 2015, "with an ‘official launch party' in cities all across the country." Regulators in Uganda, Nigeria, Bulgaria, Italy, Germany, Samoa, Singapore and other countries have all issued notices warning consumers to be wary of OneCoin.[GN] OVERHILL FARMS: Zamora Labor Suit Removed to C.D. Cal. ------------------------------------------------------ The case captioned Marlen A. Beltran Zamora, an individual, and on behalf of others similarly situated, Plaintiff, v. Overhill Farms Inc. and Does 1 through 50, inclusive, Defendants, Case No. 19STCV10854 (Cal. Super., March 29, 2019), was removed to the U.S. District Court for the Central District of California on May 3, 2019 under Case No. 19-cv-03891. Zamora seeks unpaid overtime wages and interest thereon, redress for failure to authorize or permit required meal periods, statutory penalties for failure to provide accurate wage statements, waiting time penalties in the form of continuation wages for failure to timely pay employees all wages due upon separation of employment, reimbursement of business-related expenses, failure to maintain time-keeping records, injunctive relief and other equitable relief, reasonable attorney's fees, costs and interest under California Labor Code and applicable Industrial Wage Orders. [BN] Plaintiff is represented by: Matthew J. Matern, Esq. Andrew J. Sokolowski, Esq. Brittany R. Gibson, Esq. MATERN LAW GROUP, PC 1230 Rosecrans Avenue, Suite 200 Manhattan Beach, CA 90266 Telephone: (310) 531-1900 Facsimile: (310) 531-1901 Email: mmatern@maternlawgroup.com ASokolowski@maternlawgroup.com bgibson@maternlawgroup.com Overhill Farms is represented by: Mark J. Payne, Esq. TROUTMAN SANDERS LLP 5 Park Plaza, Suite 1400 Irvine, CA 92614 Tel: (949) 622-2732 Email: mark.payne@troutman.com P.F. CHANG'S: Proskauer Rose Attorneys Discuss Court Ruling ----------------------------------------------------------- Mark W. Batten, Esq., -- mbatten@proskauer.com -- Samantha L. Regenbogen, Esq. -- sregenbogen@proskauer.com -- and Thomas B. Fiascone, Esq. -- tfiascone@proskauer.com -- of Proskauer Rose LLP,in an article for The National Law Review, report that on Friday April 12, 2019, the Massachusetts Supreme Judicial Court confirmed that plaintiffs seeking to bring class actions asserting Massachusetts Wage Act ("Wage Act") violations must meet the certification standards set by Massachusetts Rule of Civil Procedure 23 ("Rule 23"), and cannot avail themselves of a lower bar to class certification. In Gammella v. P.F. Chang's China Bistro, Inc., plaintiff Felice Gammella argued that the Commonwealth's Wage Act (Mass. Gen. L. ch. 149, Sec.Sec. 148, 150) provides its own standard for class certification, separate and distinct from the more rigorous Rule 23. Siding with the defendant, the SJC held that Wage Act claims must be brought under Rule 23. The Wage Act's language conferring the right for employees to bring claims individually or on a class basis does not, in itself, provide a lower certification standard. Rather, the court held, the language merely authorizes employees seeking certification to proceed under Rule 23. Accordingly, employees seeking to certify classes asserting Wage Act claims will still have to meet the usual Rule 23 requirements. Also in front of the SJC was the question of whether a Rule 68 offer of judgment to a single named plaintiff in a potential class action can moot the plaintiff's claim if the plaintiff both rejected the offer and notified of his intent to appeal a denied class certification motion. Weighing in on the issue for the first time, the SJC joined the majority of courts and held that a plaintiff's claim would not become moot in that scenario. The SJC ultimately reversed the superior court's denial of the plaintiff's motion for class certification, reversed the grant of the defendant's motion to dismiss for mootness on the Rule 68 point, and remanded the case for further proceedings. [GN] PARTS EXPRESS: Figueroa Asserts Breach of Disabilities Act ---------------------------------------------------------- Parts Express International, Inc. is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Jose Figueroa, on behalf of himself and all others similarly situated, Plaintiff v. Parts Express International, Inc., Defendant, Case No. 1:19-cv-03905 (S.D. N.Y., May 1, 2019). Parts Express has provided electronic parts and accessories to the audio/video industry since 1986.[BN] The Plaintiff is represented by: Joseph H Mizrahi, Esq. Cohen & Mizrahi LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Tel: (917) 299-6612 Fax: (929) 575-4195 Email: joseph@cml.legal PERSONALIZATIONMALL.COM: Figueroa Files Class Suit Under ADA ------------------------------------------------------------ Personalizationmall.com, LLC is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Jose Figueroa, on behalf of himself and all others similarly situated, Plaintiff v. Personalizationmall.com, LLC, Defendant, Case No. 1:19-cv-03915 (S.D. N.Y., May 1, 2019). Personalizationmall.Com, Inc. was founded in 1998. The company's line of business includes the retail sale of combined lines of gifts and novelty merchandise, souvenirs, greeting cards, holiday decorations, and miscellaneous small art goods.[BN] The Plaintiff is represented by: Joseph H Mizrahi, Esq. Cohen & Mizrahi LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Tel: (917) 299-6612 Fax: (929) 575-4195 Email: joseph@cml.legal PHILADELPHIA, PA: Ex-Mayor Files Class Suit Over Tax Increases -------------------------------------------------------------- John N. Mitchell, writing for The Philadelphia Tribune, reports that former Mayor John Street filed a class action lawsuit in Common Pleas Court in an effort to prevent Mayor Jim Kenney's real estate assessment increases. The plaintiff in the suit is Robert L. Cunningham, an elderly resident of North Philadelphia who has lived in his current home for almost 48 years. According to the suit, Cunningham has received a 61% tax increase. "This is the most egregious distortion of the democratic process that I have seen in 50 years," Street said in a late afternoon press release on May 10. "No other administration since the enactment of the 1951 Home Rule Charter has had the capacity or the inclination to raise hundreds of millions of real estate tax dollars without a vote of council. This is the most blatant and flagrant perversion of by a modern-day mayor and a clear violation of one of democracy's pillars -- taxation without representation." The lawsuit names Kenney, Finance Director Rob Dubow and Chief Assessment Officer Michael Piper as defendants. It seeks "declaratory, injunctive and mandamus relief for taxpayers who have been over-assessed and charged too much for their properties." The suit claims that more than 200,000 residential properties across the city have been over-assessed. "It's a shame that former Mayor Street is using his law license to execute a political stunt in the form of a frivolous lawsuit," Kenney spokesman Mike Dunn said in an email. "It is a needless distraction from the recent public debate regarding property assessments -- a debate which has been productive and has had meaningful results, including reforms that were initiated by OPA (Office of Property Assessment). "By the way, there are numerous legal errors in the filing, not the least of which is that a class action suit is inappropriate, because every taxpayer has the right to appeal their assessment -- which is why courts have said class actions are inappropriate in this context." Former Mayor Street has endorsed state Sen. Anthony Hardy Williams in his underdog effort to unseat Kenney in the May 21 Democratic primary. Williams says the assessment increase is "driven by the failure of the Mayor Kenney to address the gentrification crises." Said Williams: "Mayor Kenney is the first mayor to abuse the authority given the city's chief executive to unilaterally raise taxes through the assessment process. These taxes are driving out Philadelphians from their homes and their neighborhoods." Property values increased 5% citywide in the new round of reassessments for 2020, issued in April, while residential values rose 3.9%. More than 80,000 homeowners will see their property values decrease and nearly 34,000 will not experience any change. Last year, property assessments skyrocketed 10.5% citywide, which led to audits that found inaccuracies and deficiencies with the office's 2019 assessments. Kenney later rolled out a series of reforms, including altering the office's methodology for calculating property assessments, which was used for this year's assessments. Philadelphia is exempt from a state law requiring property assessments be revenue-neutral. Although Kenney did not include a property tax hike in his proposed budget, the increase in property values was expected to increase the city's revenue by $53 million over last year. [GN] PONZIOS RD: Summary Judgment Bid in Casco Wage Suit Partly Granted ------------------------------------------------------------------ In the case, OSCAR CASCO, individually and on behalf of all others similarly situated, Plaintiff(s), v. PONZIOS RD, INC. d/b/a METRO DINER; and Doe Defendants 1-10, Defendant(s), Civil No. 16-2084 (RBK/JS) (D. N.J.), Judge Robert B. Kruger of the U.S. District Court for the District of New Jersey, Camden Vicinage, granted in part Plaintiffs Casco and Tina Blemings' motion for partial summary judgment. The employment dispute concerns whether Defendant Ponzios RD, doing business as Metro Diner, could pay its "tipped employees" like bussers and servers less than the minimum wage by using a "tip credit" under the Fair Labor Standards Act ("FLSA") and the New Jersey Wage and Hour Law ("NJWHL"). On April 14, 2016, Casco brought the action (which Blemings subsequently joined) on behalf of a nationwide collective class as a collective action under the FLSA. Casco also brought a class action under Federal Rule of Civil Procedure 23 on behalf of himself and a New Jersey class of tipped employees. The Complaint contains five counts: (1) FLSA minimum wage violations (Count One); (2) FLSA overtime wage violations (Count Two); (3) New Jersey minimum wage violations (Count Three); (4) New Jersey overtime violations (Count Four); and (5) a New Jersey common law unjust enrichment claim (Count Five). In answering the Complaint, the Defendant denied, among other things, that it failed to properly notify tipped employees of its intention to claim a tip credit and pay them less than the minimum wage. The Plaintiffs now seek summary judgment under the FLSA and the NJWHL as to the defense that the Defendant complied with the legal requirements to pay its tipped employees less than the minimum wage by claiming a tip credit. Throughout the pendency of the Plaintiffs' summary judgment motion, discovery continued in the case. On Nov. 9, 2018, Magistrate Judge Schneider granted the Defendant leave to conduct discovery of the 10 opt-in Plaintiffs and extended pretrial factual discovery until Feb. 28, 2019. On Feb. 22, 2019, Judge Schneider subsequently extended the pretrial factual discovery deadline to April 30, 2019. Most recently, Judge Schneider directed all the Plaintiffs who have not yet responded to the Defendant's discovery requests to do so by March 8, 2019. Shortly thereafter, the Defendant filed a letter to Judge Schneider dated March 13, 2019, stating that some opt-in Plaintiffs have still not responded to the Defendant's discovery requests and seeking leave to conduct discovery of six alternative opt-in Plaintiffs. The Defendant, however, filed no affidavit with the Court to show that it could not adequately respond to the Plaintiffs summary judgment motion without that discovery. In fact, the Defendant opposed the Plaintiff's motion. The Plaintiffs argue that they are entitled to summary judgment for two reasons, one legal and one factual. First, the Plaintiffs contend that the Defendant did not comply with the legal notification requirements to claim a tip credit under the FLSA and the NJWHL. Second, and assuming arguendo that the Court does not wish to address the notification issue, the Plaintiffs contend that the facts of the case demonstrate that Defendant could not properly claim a tip credit. In opposition, the Defendant argues that the information it gave to its tipped employees satisfied the legal requirements to take a tip credit and that the facts do not support the Plaintiffs' claim that the Defendant lost its right to claim a tip credit. The Defendant also claims that genuine disputes of material fact prevent summary judgment and that summary judgment is premature because of outstanding discovery of the opt-in Plaintiffs. Judge Kruger agrees with the Plaintiffs' legal argument that the Defendant did not meet the notification requirement to take a tip credit under the FLSA and thus need not reach the parties' fact-based arguments at this time. He will not delay ruling on summary judgment because the Defendant's request is procedurally improper. The Defendant did not file a Rule 56(d) affidavit with its opposition to the Plaintiffs' motion for summary judgment or at any time thereafter. Therefore, "as a procedural matter alone," the Judge rejects the Defendant's attempt to delay summary judgment. But as to the same claim under the NJWHL, the Judge holds that the Plaintiffs have not met their burden to obtain summary judgment. He cannot conclude that the Plaintiffs are entitled to judgment as a matter of law on the tip credit issue under the NJWHL. The Judge opines that the Plaintiffs have provided the Court with no information on the more specific issue here of how New Jersey law treats an employer's ability to meet minimum wage obligations through tip credits. They also fail to conduct any analysis comparing its text to the text of Section 203(m), which, unlike the NJWHL, explicitly states that the FLSA's tip credit provision will not apply with respect to any tipped employee unless such employee has been informed by the employer of the provisions of this subsection. They also fail to direct the Court to any regulations or authorities interpreting any provision of the NJWHL in tandem with the FLSA with respect to the tip credit issue. Accordingly, the Plaintiffs' motion for summary judgment under the NJWHL is denied, without prejudice. The Judge expresses no opinion on the proper construction of the NJWHL as it relates to an employer's notification obligations before it may attempt to claim a tip credit. For these reasons, Judge Kruger granted in part the Plaintiffs' motion, and summary judgment is entered in their favor and against the Defendant on the tip credit issue under the FLSA. An Order will issue. A full-text copy of the Court's April 17, 2019 Opinion is available at https://is.gd/et80Hf from Leagle.com. OSCAR CASCO, individually and on behalf of all others similarly situated, Plaintiff, represented by GERALD D. WELLS -- gwells@cwg-law.com -- Connolly Wells & Gray, LLP & LAWRENCE KALIKHMAN -- lkalikhman@kalraylaw.com -- KALIKHMAN & RAYZ, LLC. PONZIOS RD, INC., doing business as, Defendant, represented by RALPH R. SMITH, III, CAPEHART & SCATCHARD & KELLY ESTEVAM ADLER, CAPEHART & SCATCHARD PA. QUIXOTE VENTURES: Pa. Super. Affirms Summary Judgment in Klein Suit ------------------------------------------------------------------- In the case, ELLEN KLEIN, BARBARA JONES, ELIZABETH STANKOVICS AND DAWN ROWLANDS, INDIVIDUALY, AND ALL OTHERS SIMILARLY SITUATED Appellants, v. QUIXOTE VENTURES, LLP AND LIFETIME MANUFACTURE HOMES, LLP, Case No. 2258 EDA 2018 (Pa. Super.), Judge Dan Pellegrini of the Superior Court of Pennsylvania affirmed the Northampton County Court of Common Pleas' order of summary judgment entered on July 16, 2018, in favor of Quixote. On May 17, 2012, Tenants Klein, Jones, Stankovics and Rowlands, filed a class action complaint against Quixote (a manufactured home park landlord), Lifetime Manufacture Homes, LLP (Lifetime) (a manufactured home dealer), Forks Chestnut Hill Corporation (a general partner of Lifetime), and Albert Jinks (Jinks) (a limited partner in Quixote and Lifetime). The Tenants' homes were all situated in a community called Jacob's Farm that was owned and operated by Quixote. The Tenants sought to be named as the class representatives of all residents of Jacob's Farm who bought homes from Lifetime, but the class was never certified. In their action, the Tenants asserted, inter alia, that Quixote and Lifetime violated the Mobile Home Park Rights Act ("MHPRA"). Specifically, they claimed that those two parties violated the MHPRA by (a) requiring them to purchase porches, decks, garages and other upgrades from Lifetime, and (b) failing to timely disclose lumber surcharge fees which increased the total price of their homes. These alleged violations of the MHPRA arose from terms in the Tenants' home purchase contracts with Lifetime and their leases with Quixote to reserve the lots on which their homes would be placed. In April 2005, at closing, the last of the four-named Tenants completed her purchase with Lifetime and signed her lease with Qu ixote. The other three Tenants had completed their purchases and signed their leases earlier. Prior to their respective closings, each Tenant was given an advance copy of the lease with Quixote, as well as a disclosure form stating that the agreed purchase price could be subject to an increase if the builder assessed lumber surcharge fees. They were also provided with a one-page "Questions and Answers" sheet which stated that "all decks and garage construction must be by Lifetime." It is undisputed that all four Tenants possessed the above documents several months prior to their closing dates. Further, all of the closing costs and purchase prices, including the lumber surcharges, were due at closing. While they dispute the legality of certain costs and lease terms, the Tenants do not maintain that any such costs or terms were ever withheld from them prior to finalizing their home purchases and signing their leases. In 2008, the Tenants held a community meeting with other residents of Jacob's Farm to discuss various topics such as potential legal claims regarding lumber surcharges and construction restrictions in their leases. It is not clear from the record what occurred at that meeting to prompt the present action nor is it evident why the Tenants waited until May 2012 to file suit. In February 2013, Lifetime filed a preliminary objection in the nature of a demurrer to the Tenants' then-operative complaint. Lifetime averred that the Tenants had failed to state a cause of action against it because the MHPRA did not govern the conduct of the dealers of mobile or manufactured homes such as Lifetime. Agreeing, the trial court dismissed all claims against Lifetime. The claims against Jinks were dismissed for similar reasons on May 9, 2014. After years of further litigation, Quixote (Jacobs' Farm's owner and operator) moved for summary judgment. The trial court granted the motion, stating in its order that due to the prior dismissal of all claims against Lifetime and Jinks, its ruling was based only on the conduct of the distinct entity identified as Quixote. Rejecting the Tenants' argument that all of the Defendants should be treated as a single entity, the trial court granted Quixote's motion because none of the Tenants' claims were predicated on Quixote's conduct. As a separate basis for granting summary judgment, the trial court determined that the statute of limitations had run prior to the filing of the Tenants' original complaint. The Tenants appealed from the order granting summary judgment in favor of Quixote and now raise the following issues in their brief: A. Whether the trial court erred or otherwise abused its discretion in granting summary judgment because there are genuine issues of material fact regarding whether the [Tenants] were required to purchase certain upgrades, such as decks and garages, from Lifetime and whether the Appellee(s) violated the MHPRA by requiring this. B. Whether the trial court erred or otherwise abused its discretion in granting summary judgment because there are genuine issues of material fact that the appellees imposed improper lumber sur-charges and failed to timely disclose same in violation of the MHPRA. C. Whether the trial court erred or otherwise abused its discretion regarding the Court's June 26, 2013 decision to dismiss Lifetime and the trial court's July 16, 2018 decision stating that it was constrained by same. D. Whether the trial court erred or otherwise abused its discretion in granting summary judgment because there are genuine issues of material fact that the statutes of limitations was not violated and/or this decision should have been left to the jury to decide. Viewing the present facts in the light favorable to the Tenants, Judge Pellegrini finds that their causes of action were reasonably discoverable in 2005. The Tenants do not dispute that the precise terms of the subject lumber surcharges and building restrictions were disclosed in advance of their closings. Nothing in the record suggests that the Tenants were in any way hindered from immediately assessing the legality of those surcharges and building restrictions. In fact, one of the four Tenants admitted that she first disputed them in 2005, soon after the relevant purchase and lease conditions went into effect. Accordingly, there is no basis for a jury to conclude that the limitations period was tolled by operation of the discovery rule, and the Tenants' claims are time-barred. Having resolved the appeal on those procedural grounds, the Judge finds it unnecessary to address the merits of any of the other issues presented in the Tenants' brief. He affirmed and entered judgment. A full-text copy of the Court's April 17, 2019 Memorandum is available at https://is.gd/tyfwyk from Leagle.com. James W. Sutton, III -- jsutton@vslaws.com -- The Law Offices Of James W. Sutton III, for Appellant, Ellen Klein, Barbara Jones, Elizabeth Stankovics, Dawn Rowlands. Devin John Chwastyk -- dchwastyk@mwn.com -- McNees Wallace & Nurick LLC, for Appellee, Quixote Ventures, LLP. Daniel E. Cohen -- dec@schrlaw.com -- Seidel, Cohen, Hof & Reid, LLC, for Appellee, Lifetime Manufacture Homes, LLP. ROBIN INDUSTRIES: Byerly Seeks Overtime Pay for Off-the-Clock Work ------------------------------------------------------------------ Sarah Byerly, on behalf of herself and all others similarly situated, Plaintiff, v. Robin Industries, Inc., Defendant, Case No. 19-cv-01004, (N.D. Ohio, May 3, 2019), seeks unpaid overtime compensation, liquidated damages, attorneys' fees and costs under the Fair Labor Standards Act and the Ohio Minimum Fair Wage Standards Act. Robin Industries is a custom molder of elastomers and plastics for a wide variety of markets. Byerly worked for Robin as a non-exempt, hourly-paid worker. According to the complaint, Robin would round the employees' start time to the start of their scheduled shift and would round off their end time to the end of their scheduled shift for purposes of calculating employees' pay. [BN] Plaintiff is represented by: Hans A. Nilges, Esq. Shannon M. Draher, Esq. NILGES DRAHER LLC 7266 Portage Street, N.W., Suite D Massillon, OH 44646 Telephone: (330) 470-4428 Facsimile: (330) 754-1430 Email: hans@ohlaborlaw.com sdraher@ohlaborlaw.com - and - Jeffrey J. Moyle, Esq. NILGES DRAHER LLC 614 W. Superior Ave., Suite 1148 Cleveland OH 44113 Telephone: (216) 230-2955 Facsimile: (330) 754-1430 Email: jmoyle@ohlaborlaw.com RYB EDUCATION: Consolidated Qian & Wang Suit Voluntarily Dismissed ------------------------------------------------------------------ RYB Education, Inc. said in its Form 20-F report filed with the U.S. Securities and Exchange Commission on April 26, 2019, for the fiscal year ended December 31, 2018, that the consolidated Qian v. RYB Education, Inc. et al. and Wang v. RYB Education, Inc. et al. was voluntarily dismissed without prejudice. The company and certain of its directors and officers were named as defendants in two putative class actions filed in the United States District Court for the Southern District of New York: Qian v. RYB Education, Inc. et al., Case No. 1:17-cv-09261-KPF (S.D.N.Y.) and Wang v. RYB Education, Inc. et al., Case No. 1:17-cv-09320-UA (S.D.N.Y.). The complaints in both actions allege that the company's registration statements contained misstatements or omissions regarding the company's business, operation, and compliance in violation of the U.S. securities laws. The complaints state that the plaintiffs seek to represent a class of persons who allegedly suffered damages as a result of their trading in the company's securities between September 27 and November 22, 2017, and allege violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, and Rule 10b-5 promulgated thereunder, and Sections 11 and 15 of the Securities Act of 1933. On January 3, 2018, the court entered an order consolidating the two cases. On June 18, 2018, the consolidated action was voluntarily dismissed without prejudice. RYB Education, Inc. provides early childhood education service in the People's Republic of China. The company offers kindergarten services to 2-6-year-old children; and play-and-learn centers services for the joint participation of 0-6-year-old children and their adult family members to promote children's development, foster bonding with family, and prepare them for their entry into kindergartens and primary schools. The company was formerly known as Top Margin Limited and changed its name to RYB Education, Inc. in June 2017. RYB Education, Inc. was founded in 1998 and is based in Beijing, China. RYB EDUCATION: Qian Class Action Remains Stayed ----------------------------------------------- RYB Education, Inc. said in its Form 20-F report filed with the U.S. Securities and Exchange Commission on April 26, 2019, for the fiscal year ended December 31, 2018, that the case entitled, Qian v. RYB Education, Inc. et al., Case No. 17CIV05494, has been stayed on forum non conveniens grounds. The company, certain of its directors and officers, and certain underwriters for its initial public offering were named as defendants in a putative class action filed in the Superior Court of the State of California for the County of San Mateo: Qian v. RYB Education, Inc. et al., Case No. 17CIV05494. The complaint alleges that the company's registration statements contained misstatements or omissions regarding its business, operations and prospects in violation of the U.S. securities laws. The complaint states that the plaintiffs seek to represent a class of persons who allegedly suffered damages as a result of their purchase or other acquisition of the company's securities in connection with its initial public offering on or about September 27, 2017, and alleges violations of Sections 11, 12(a)(2) and 15 of the Securities Act of 1933. On September 5, 2018, the case was stayed on forum non conveniens grounds. RYB Education, Inc. provides early childhood education service in the People's Republic of China. The company offers kindergarten services to 2-6-year-old children; and play-and-learn centers services for the joint participation of 0-6-year-old children and their adult family members to promote children's development, foster bonding with family, and prepare them for their entry into kindergartens and primary schools. The company was formerly known as Top Margin Limited and changed its name to RYB Education, Inc. in June 2017. RYB Education, Inc. was founded in 1998 and is based in Beijing, China. RYB EDUCATION: Says Zhang Class Suit in Preliminary Stages ---------------------------------------------------------- RYB Education, Inc. said in its Form 20-F report filed with the U.S. Securities and Exchange Commission on April 26, 2019, for the fiscal year ended December 31, 2018, that the company continues to defend a class action suit entitled, Zhang v. RYB Education, Inc. et al. The company and certain of its directors and officers were named as defendants in a putative class action filed in the Supreme Court of the State of New York for the County of Queens: Zhang v. RYB Education, Inc. et al., Index No. 717923/2018. The complaint alleges that the company's registration statements contained misstatements or omissions regarding its business, operations and prospects in violation of the U.S. securities laws. The complaint states that the plaintiffs seek to represent a class of persons who allegedly suffered damages as a result of their purchase or other acquisition of the company's securities in connection with its initial public offering on or about September 27, 2017, and alleges violations of Sections 11, 12(a)(2) and 15 of the Securities Act of 1933. RYB Education said, "This case remains in its preliminary stage, we express no opinion on the likelihood of any unfavorable outcome or any estimate of the amount or range of any potential loss." RYB Education, Inc. provides early childhood education service in the People's Republic of China. The company offers kindergarten services to 2-6-year-old children; and play-and-learn centers services for the joint participation of 0-6-year-old children and their adult family members to promote children's development, foster bonding with family, and prepare them for their entry into kindergartens and primary schools. The company was formerly known as Top Margin Limited and changed its name to RYB Education, Inc. in June 2017. RYB Education, Inc. was founded in 1998 and is based in Beijing, China. SAN FRANCISCO, CA: Filing of 2nd Amended Lil' Man Suit Denied ------------------------------------------------------------- In the case, LIL' MAN IN THE BOAT, INC., Plaintiff, v. CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants, Case No. 17-cv-00904-JST (N.D. Cal.), Judge Jon S. Tigar of the U.S. District Court for the Northern District of California denied the Plaintiff's motion for leave to file a second amended complaint. Lil' Man operates a charter vessel out of South Beach Harbor. South Beach Harbor is a "full service marina" on the San Francisco Bay, operated by the San Francisco Port Commission. The harbor has two "guest docks" relevant to the litigation, known as the North Dock and the South Dock. In 2016, harbormaster Joe Monroe and his staff asked commercial vessels using South Beach Harbor to sign a new landing agreement. Lil' Man refused to sign the agreement. In February 2017, Lil' Man brought the suit as a putative class action, asserting four claims under 42 U.S.C. Section 1983: violation of the Tonnage Clause of the United States Constitution; violation of the First Amendment right to petition; violation of the Commerce Clause; and violation of the Rivers and Harbors Act. Lil' Man also asserted claims under the Bane Act, which the Court dismissed on the Defendants' motion. Lil' Man amended its complaint in August 2017. On Sept. 6, 2017, the parties appeared for a case management conference, and the Court issued a scheduling order setting Sept. 15, 2017 as the deadline to amend the pleadings. On Jan. 11, 2018, the parties filed a stipulated request to allow Lil' Man to file a second amended complaint. The Court denied the request the following day because the parties provided no explanation of good cause for the failure to comply with the deadline to amend the pleadings set forth in the scheduling order. Thereafter, the Defendants moved for judgment on the pleadings as to the First Amendment claim and the claims for violation of California Business and Professions Code Section 23300. The Court granted that motion in September 2018. In October 2018, Lil' Man moved for class certification on its remaining claims. The Court denied the motion for lack of numerosity. In January 2019, the Court held a further case management conference and set March 15, 2019 as the deadline to file a motion to amend the pleadings. On the day of the deadline, Lil' Man moved to file a second amended complaint. The Defendants oppose the motion. Lil' Man seeks leave to file a second amended complaint to add a claim for retaliation under 42 U.S.C. Section 1983 arising from facts that arose after the litigation was filed, and after the Plaintiff was last permitted leave to amend its complaint. Specifically, Lil' Man alleges that the Defendants shut down, then tore down, the North Dock in retaliation for Lil' Man's filing of the lawsuit. The closure of the North Dock allegedly occurred on April 24, 2017; the North Dock was removed by the Defendants entirely in 2018. As an initial matter, Judge Tigar notes that the motion is controlled by Rule 16 of the Federal Rules of Civil Procedure, and not Rule 15 as Lil' Man's motion suggests. The Court previously set Sept. 15, 2017 as the deadline to amend the pleadings, and the present motion was filed a year-and-a-half after that date. T hus, Lil' Man must demonstrate good cause before the Court will allow amendment. Lil' Man argues that it understood the Court's January 2019 order to have "implicitly modified the prior case management order" which set Sept. 15, 2017 as the deadline to amend the pleadings. The Court did not intend to, and did not, modify its prior case management order. It merely set a deadline for the filing of the Plaintiff's motion. In fact, the Court reminded the Plaintiff of the need to show good cause at the Jan. 30, 2019 case management conference. Moreover, in January 2018, the Court denied a stipulated request to allow Lil' Man to file a second amended complaint due to the parties' failure to make the good cause showing required by Rule 16. The inference Lil' Man draws from the setting of a motion deadline is not reasonable. Lil' Man next attempts to demonstrate diligence and good cause by separating its allegation that Defendants shut down the North Dock from its allegation that they closed the North Dock, and focusing the Court on the latter event. Because the argument was made for the first time on reply, the Judge need not consider it. The argument also fails, however, considered on the merits. The Plaintiff's proposed amended complaint makes clear that the City's actions were all part of one alleged course of conduct. That course of conduct began in April 2017. Waiting until March 2019 to file a proposed amended complaint does not demonstrate diligence. Finally, Lil' Man asserts that its proposed amendments respond to the Court's orders granting partial judgment on the pleadings, and denying Lil Man's motion for class certification. These matters do not require amendment of the complaint. For the foregoing reasons, Judge Tigar denied Lil' Man's motion for leave to file a second amended complaint. A full-text copy of the Court's April 19, 2019 Order is available at https://bit.ly/2HmYC7n from Leagle.com. Lil' Man in the Boat, Inc., a California Corporation, Plaintiff, represented by David Raymond Ongaro -- dongaro@ongaropc.com -- Ongaro PC, Amelia D. Winchester -- awinchester@ongaropc.com -- Ongaro PC & Glen Elliot Turner -- gturner@ongaropc.com -- Ongaro PC. City and County of San Francisco, San Francisco Port Commission, operating under the title Port of San Francisco, Elaine Forbes, Interim Executive Director, Peter Daley, Deputy Director, Maritime the San Francisco Port, Jeff Bauer, Deputy Director of Real Estate, the San Francisco Port & Joe Monroe, Harbormaster, South Beach Harbor, Pier 40, Defendants, represented by Tara M. Steeley -- tara.steeley@sfgov.org -- San Francisco City Attorney's Office. STATE FARM: Court Dismisses Vang Suit without Prejudice ------------------------------------------------------- In the case, Chee Vang, et al., Plaintiffs, v. State Farm Mutual Automobile Insurance Company, et al., Defendants, Case No. CV-18-03870-PHX-DWL (D. Ariz.), Judge Dominic W. Lanza of the U.S. District Court for the District of Arizona (i) granted the Defendants' motion to dismiss; (ii) denied as moot the Defendants' prior motion to dismiss; (iii) denied as moot the Plaintiffs' Motion for Leave to File Sur-Reply; and (iv) dismissed without prejudice the amended complaint. The Plaintiffs are State Farm policyholders residing in Minnesota. Each was injured in an automobile accident that occurred in Minnesota. Each received treatment from chiropractor Jer Lee, D.C. at the Chiro Health Clinic in Minnesota, as well as from other Minnesota-based providers. This chiropractor, however, didn't receive timely payment from State Farm because he had been flagged by an internal State Farm anti-fraud program that sought to identify which doctors cause State Farm to pay the most in automobile-accident bodily-injury claims. Each alleges State Farm delayed payment using a scheme targeting racial and ethnic minorities for sham fraud investigations. According to the Plaintiffs, this program is actually an elaborate scheme to avoid paying claims by racial and ethnic minorities and members of immigrant communities across the United States. Accordingly, they seek to assert anti-discrimination claims against State Farm under the Patient Protection and Affordable Care Act, 42 U.S.C. Section 18116, and under 42 U.S.C. Section 1981. Notably, all of the Plaintiffs reside in Minnesota. That's also where the car accidents occurred, where the chiropractor is based, and where the State Farm claims specialists were located at the time they made the challenged decisions to delay payment. The only connections between the conduct at issue in the case and the state of Arizona are that (1) State Farm used an Arizona "mail drop" during the time period in question and (2) State Farm reassigned some of the claims to an Arizona-based claims specialist in September 2018, which is after the key events occurred. On Nov. 6, 2018, te Plaintiffs filed a complaint alleging that State Farm systematically targets healthcare providers serving minority populations and, in turn, knowingly discriminates against minority insureds like themselves. On Dec. 18, 2018, State Farm moved to dismiss the complaint for lack of personal jurisdiction and failure to state a claim, or alternatively, to transfer under 28 U.S.C. Section 1631. On Jan. 8, 2019, the Plaintiffs filed an amended complaint. On Jan. 22, 2019, State Farm filed the motion seeking dismissal or, alternatively, a transfer of venue under 28 U.S.C. Section 1631 now pending before the Court. Judge Lanza cannot conclude that State Farm is "at home" in Arizona. State Farm is not subject to general jurisdiction in Arizona. General jurisdiction is accordingly absent. State Farm's Arizona contacts paint only part of the general-jurisdiction picture. The Plaintiff focus solely on State Farm's in-state activities. Though indisputably substantial and continuous, the relative significance of these contacts remains uncertain at best. The Plaintiffs' arguments concerning specific jurisdiction fare no better. The Judge finds that the Plaintiffs are residents of Minnesota, suffered injuries from automobile accidents in Minnesota, received treatment in Minnesota from providers in Minnesota, submitted insurance claims in Minnesota, and, until September 2018, had those claims assigned to claim specialists in Minnesota -- the same specialists who allegedly delayed payment pursuant to a company-wide policy that discriminates against racial and ethnic minorities. The investigations that ensued undoubtedly focused on witnesses and evidence located in Minnesota as well. The eventual reassignment of some claims to an Arizona-based claim specialist did not alter their fundamentally Minnesotan character. It follows, then, that the Plaintiffs cannot establish their claims would not have arisen but for State Farm's Arizona-related activities. The Plaintiffs include, in their opposition brief, a cursory request for jurisdictional discovery if the Court concludes that personal jurisdiction is lacking. This request will be denied. The Juge finds that although jurisdictional discovery should be permitted where pertinent jurisdictional facts are in dispute, denial is proper"when it is clear that further discovery would not demonstrate facts sufficient to constitute a basis for jurisdiction. Such is the case here. The Plaintiffs do not explain, with any specificity, what evidence they expect jurisdictional discovery to produce. Accordingly, Judge Lanza (i) granted the Defendants' motion to dismiss; (ii) denied as moot the Defendants' prior motion to dismiss; and (iii) denied as moot the Plaintiffs' Motion for Leave to File Sur-Reply. He dismissed without prejudice the amended complaint. The Clerk of Court is directed to enter judgment accordingly and will terminate the case. A full-text copy of the Court's April 17, 2019 Order is available at https://is.gd/sCTQTZ from Leagle.com. Chee Vang, on behalf of themselves and all others similarly situated, Vee Vang, on behalf of themselves and all others similarly situated, Xeng Thao, on behalf of themselves and all others similarly situated & Yeng Her, on behalf of themselves and all others similarly situated, Plaintiffs, represented by David Walfred Asp -- dwasp@locklaw.com -- Lockridge Grindel Nauen PLLP, Eric Neil Linsk -- rnlinsk@locklaw.com -- Lockridge Grindel Nauen PLLP, Hart Lawrence Robinovitch -- hart.robinovitch@zimmreed.com -- Zimmerman Reed PLLP & Susan E. Ellingstad -- seellingstad@locklaw.com -- Lockridge Grindel Nauen PLLP. State Farm Mutual Automobile Insurance Company & State Farm Fire and Casualty Company, Defendants, represented by Erin Elizabeth Bradham -- erin.bradham@dentons.com -- Dentons US LLP, Frank Falzetta -- ffalzetta@sheppardmullin.com -- Sheppard Mullin Richter & Hampton LLC, Jennifer Marie Hoffman -- jhoffman@sheppardmullin.com -- Sheppard Mullin Richter & Hampton LLP & Karl Michael Tilleman -- karl.tilleman@dentons.com -- Dentons US LLP. TELUS COMMS: Blake Cassels Attorneys Discuss Court Ruling --------------------------------------------------------- Bradley Berg, Esq. -- brad.berg@blakes.com -- and Max Shapiro, Esq. -- max.shapiro@blakes.com -- of Blake, Cassels & Graydon LLP, in an article for JDSupra, report that on April 4, 2019, a majority of the Supreme Court of Canada (SCC) in TELUS Communications Inc. v. Wellman (Wellman) decided that business customer claims in a class action should be stayed pursuant to arbitration clauses in the standard terms and conditions of those customers' contracts. It further concluded that the Ontario Arbitration Act did not provide courts with jurisdiction to refuse to stay class member claims that are covered by a valid arbitration clause. LOWER COURT DECISIONS The plaintiff filed a proposed class action against TELUS alleging overbilling on behalf of about two million Ontario residents with standard form mobile phone service contracts. The proposed class included both consumers who purchased plans for personal use and non-consumers (business customers) who purchased plans for business use. The standard form contracts contained an arbitration clause which, by virtue of the Ontario Consumer Protection Act, did not apply to the consumer contracts. However, the business customers did not fall within those consumer provisions and TELUS moved to stay the claims of those customers in reliance on the arbitration clause in their contracts. The court dismissed TELUS's motion at first instance, allowing the consumer and business customer claims to proceed together in the class action. In so doing, the court held that section 7(5) of the Arbitration Act granted it the discretion to refuse a stay where it would not be reasonable to separate the matters dealt with in the arbitration agreement from other matters. The Court of Appeal for Ontario dismissed TELUS's appeal. Justice van Rensburg for the majority agreed with the first instance judge's interpretation of section 7(5) of the Arbitration Act. Justice Blair concurred in the result, though expressed reservations about whether that provision extended to the interconnection of several arbitration agreements involving different parties, and whether non-consumers ought to be able to sidestep an arbitration clause by adding consumer claims and wrapping all claims in the cloak of a class proceeding. SCC DECISION Justice Moldaver, writing for the five-judge SCC majority, allowed the appeal and concluded that the Arbitration Act required that the business customer claims be stayed. Four justices dissented. The majority identified the overriding issue on the appeal as the proper interpretation of section 7(5) of the Arbitration Act, rather than underlying policy concerns regarding the merits of enforcing arbitration clauses contained in standard form contracts. As a matter of statutory interpretation, the majority noted that section 7(1) of the Arbitration Act establishes a general rule that the court must stay a proceeding commenced in respect of a matter that is the subject of an arbitration agreement. Section 7(5), which provides an exception to this general rule, has two requirements. First, the arbitration agreement must deal with only some of the matters over which the proceeding was commenced. Second, it must be reasonable to separate the matters dealt with in the arbitration agreement from the other matters. If these conditions are met, the court has discretion to allow the matters that are not dealt with in the arbitration agreement to proceed in court but must nonetheless stay the proceedings in respect of the matters dealt with in the arbitration agreement. The majority concluded that the first precondition was not met because the sole matter at issue in the proposed TELUS class action (alleged overbilling) was dealt with in the business customers' arbitration agreements. As such, a stay of their claims was mandatory. The majority reasoned that the legislature made a careful choice to exempt only consumers from the ordinary enforcement of arbitration agreements, and non-consumers (here, the TELUS business customers) ought to be held to their bargains. While the majority acknowledged the importance of promoting access to justice and avoiding multiple proceedings, absent express direction from the legislature, these policy concerns should not be permitted to override the objectives pursued by the Arbitration Act – including that parties to a valid arbitration agreement abide by their agreement. For the dissent, Justices Abella and Karakatsanis emphasized policy concerns. They interpreted section 7(5) of the Arbitration Act in a manner that maintains the courts' discretion to refuse to stay arbitrable claims if it is unreasonable to separate them from non-arbitrable claims. IMPLICATIONS It follows from Wellman that valid arbitration clauses in commercial agreements should be enforced even where this will exclude certain persons from class actions. This decision affirms that courts will not lightly set aside the legislative objective of enforcing valid arbitration clauses on policy grounds in class actions. It also confirms that arbitration clauses contained in standard form agreements (sometimes called contracts of adhesion because they are not negotiated) "will generally be enforced" absent legislative language to the contrary. Going forward, companies that have such clauses in their commercial agreements can expect more certainty and predictability in those clauses being upheld by the courts. In this regard, Wellman reinforces the importance of careful drafting for both bespoke and standard form contracts that include arbitration clauses. Parties will wish to consider whether to include either broad language to the effect that all claims arising out of, or in relation to, the contract shall be determined through arbitration or more tailored language to exclude certain matters from arbitration. [GN] TELUS COMMS: Davies Ward Attorneys Discuss Court Ruling ------------------------------------------------------- Derek D. Ricci, Esq. -- dricci@dwpv.com -- Anthony M.C. Alexander, Esq., -- aalexander@dwpv.com -- and Rui Gao, Esq. -- rgao@dwpv.com -- of Davies Ward Phillips & Vineberg LLP, in an article for Lexology, report that in its recent ruling in TELUS Communications Inc. v Wellman, 2019 SCC 19 (Wellman), the Supreme Court of Canada held that business customers of TELUS that entered into mandatory arbitration agreements cannot seek relief in court by participating in a class action together with consumers. In Wellman, a narrow majority of the Supreme Court ruled that for consumers as a protected category of litigant, the right to seek redress by way of class action takes precedence over any contrary promise to resolve disputes through arbitration. For all other litigants, however, the importance of enforcing an arbitration agreement trumps the right of these parties to participate in a class proceeding covering the same subject matter. Key Takeaways * Non-consumers cannot simply disregard otherwise-binding arbitration agreements by "piggybacking" on the claims of consumers. * The decision represents a departure from a line of case law in Ontario and some other provinces, and brings the law in these provinces in line with the law in British Columbia. * Arbitration clauses are enforceable against non-consumers even if they are included in standard-form contracts. * Non-consumers may, however, still be able to challenge the enforceability of standard-form arbitration clauses by arguing that those clauses are invalid due to unconscionability. Background The case involved an Ontario class proceeding that had been brought against TELUS on behalf of two groups of the company's customers: (i) consumers who purchased its telecom services, and (ii) businesses that purchased these services. Both groups alleged that TELUS had improperly "rounded up" billable airtime to the next minute without disclosing this practice. Both sets of customers had executed agreements promising to resolve disputes exclusively by way of binding arbitration. The difficulty for TELUS is that Canadian consumer protection legislation generally treats mandatory arbitration agreements as unenforceable against consumers and thus ineffective to prevent consumers from participating in class actions. However, that legislation grants no such protection to non-consumers (such as TELUS's business customers). Despite this distinction, the courts below had rejected TELUS's challenge to the make-up of the class action and had allowed the class action to proceed on behalf of both consumers and business customers of TELUS. In doing so, the courts below had followed a line of case law to the effect that, under the Ontario Arbitration Act, the court has the discretion to refuse to grant a stay of claims that are subject to a valid arbitration agreement if it would not be reasonable to separate them from non-arbitrable claims. Courts in provinces where similar arbitration legislation was enacted (such as Manitoba and Alberta) have also adopted this reasoning. Decision of the Supreme Court of Canada The Supreme Court divided 5-4, with the majority ruling that the courts below had erred by refusing to stay that portion of the class action that involved claims by TELUS's business customers. As the majority noted, the Ontario Arbitration Act requires that all disputes that involve a matter that falls within an arbitration agreement must be arbitrated, rather than litigated. Because the dispute regarding overbilling was unquestionably captured by the TELUS arbitration agreement, it was not a matter that could be properly pursued by way of class proceeding. This conclusion would have precluded both consumers and business customers from participating in the class action were it not for the special treatment granted to consumers under the applicable consumer protection legislation. Because of that unique protection, those TELUS customers who were considered consumers were not bound by their arbitration agreements and were consequently permitted to proceed with the class action. In contrast, the majority affirmed that those same arbitration clauses are enforceable against non-consumers, even if these clauses are contained in standard-form contracts. Had the legislature wished to render such agreements unenforceable outside the consumer context, it could have done so. In reaching this decision, the majority effectively rejected the relevant case law in Ontario and some other provinces, and affirmed the approach that the Supreme Court of Canada had previously adopted in the British Columbia case of Seidel v TELUS Communications Inc., 2011 SCC 15. Importantly, however, the majority left open the possibility that standard-form arbitration clauses could still be challenged (even in non-consumer contracts) through the doctrine of unconscionability. Notably, the Ontario Court of Appeal found a mandatory arbitration clause -- incorporated into a standard-form employment contract -- to be unconscionable, and thus unenforceable, in Heller v Uber Technologies, 2019 ONCA 1. The Ontario Court of Appeal emphasized that the plaintiffs in that case had "no reasonable prospect of being able to negotiate any of the terms" of the agreement, and there was "a significant inequality of bargaining power" between the parties. Going beyond the facts in the Wellman case, the majority also clarified that, under the Ontario Arbitration Act (and similar legislation in other provinces), the default rule is that the court must stay a court proceeding if at least one subject matter of the proceeding is covered by an arbitration agreement, even if the proceeding involves other matters not covered by the arbitration agreement. In those circumstances, the court can exercise its discretion to grant a partial stay over claims that are not dealt with in the arbitration agreement if certain conditions are met; but the court has no discretion to refuse to grant a stay of claims that are subject to a valid arbitration agreement. [GN] TFI INT'L: Wins Court OK of $4.74MM Settlement in Flores FLSA Suit ------------------------------------------------------------------ In the case, PHILLIP FLORES, et al., Plaintiffs, v. TFI INTERNATIONAL INC., et al., Defendants, Case No. 12-cv-05790-JST (N.D. Cal.), Judge Jon S. Tigar of the U.S. District Court for the Northern District of California (i) granted Plaintiffs Philip Flores and Darah Duong's Unopposed Motion for Approval of Joint Stipulation of Settlement, and Attorneys' Fees and Costs; and (ii) denied their unopposed administrative motion to file a document under seal. The Plaintiffs claim that Defendants TFI International Inc., TForce Final Mile, LLC, and Velocity Express, LLC, misclassified Velocity Express delivery drivers -- including the Plaintiffs -- as independent contractors, thereby depriving them of minimum wages and overtime. Though Velocity Express required its drivers to sign an Independent Contractor Agreement, it nonetheless exerted substantial control over the drivers' work. On Nov. 9, 2012, the Plaintiffs filed the lawsuit as a putative collective action under the FLSA and putative class action pursuant to Rule 23 of the Federal Rules of Civil Procedure, alleging violations of the FLSA, the California Labor Code, and California's Unfair Competition Law. On June 3rd, 2013, the Court granted the Plaintiffs' motion to conditionally certify a FLSA collective action for the class of all current and former delivery drivers of Velocity Express, LLC who signed the 2009 Independent Contractor Master Agreement, and who are or were employed to deliver goods to its clients at any time in the last three years, who worked over eight hours per workday or 40 hours per workweek, and were not paid a minimum wage or overtime for hours worked over 40 in a workweek or hours worked over 8 in a workday. It approved a modified version of the proposed notice and consent form for additional class members to opt in to the litigation. The parties represent that they had previously twice attempted to mediate their claims with the assistance of Mark Rudy, but those attempts were unsuccessful due to outstanding issues regarding liability. They engaged in a third round of mediation during discovery for the Tranche 1 Plaintiffs, including an all-day mediation session and multiple follow-up conferences, resulting in the Settlement before the Court. On Oct. 26, 2018, the Plaintiffs filed the unopposed motion for settlement approval. The Court heard argument on the motion on Nov. 15, 2018. At the hearing, the Court expressed the concerns about the proposed settlement identified later in the order. To respond to these concerns, the parties filed a supplemental joint statement on Nov. 28, 2018, supported by a further declaration from the Plaintiff's counsel. The Plaintiffs' counsel then filed a further supplemental declaration in support on Dec. 17, 2018. On Jan. 25, 2019, the Plaintiffs' counsel filed yet a further declaration, detailing the counsel's efforts at notice tothe members of the collective action and the response by participating drivers. Under the terms of the Settlement, the Defendants agree to pay a maximum amount of $4.74 million. The Settlement allocates that amount as follows: (1) $1.85 million for the participating Plaintiffs; and (2) $2.9 million for the Plaintiffs' counsel's attorneys' fees and costs, including the costs of administering the Settlement. The Claims Amount will first be used to satisfy the $62,500 judgment the Court awarded to Boconvi and Mack. In addition, 13% of the Claims Amount, or $240,500, will be allocated to the subset of participating Plaintiffs who provided services in California, in exchange for the release of their California law claims. The remaining $1,547,000 will be allocated to all the participating Plaintiffs. The Claim Share of each participating Plaintiff (both as to the California-specific and general amounts) will be determined in proportion to the number of weeks worked by that the Plaintiff during the qualifying period. The Plaintiffs' counsel have calculated the number of qualifying weeks for each Plaintiff using data provided by the Defendants. The Defendants also agree to dismiss the pending appeal of the Boconvi action. In exchange, the Plaintiffs agree to release all claims that were pled in the Flores Action. The Settlement requires each Plaintiff to affirmatively opt to participate and establishes a process for securing their participation. By Oct. 25, 2018 -- one day prior to filing the motion with the Court -- the Plaintiffs' counsel mailed each Plaintiff notice of the Settlement. If a Challenging Driver's dispute is not resolved by Nov. 15, 2018, the Settlement provides that the Court will adjudicate each challenge. Any Plaintiff whose challenge is not resolved in their favor will be "deemed a Non-Participating Driver" and excluded from the Settlement. Finally, the Settlement contemplates a fourth class of the Plaintiffs: those who fail to timely respond to the mailed notice by Nov. 14, 2018 ("Absentee Participating Drivers"). Those Plaintiffs will have an additional thirty days, until Dec. 14, 2018, to respond. The Settlement does not allow these Plaintiffs to challenge their individual share. For those Plaintiffs who fail to respond within the 51-day period, the Court shall, on Dec. 17, 2018, enter an order administratively dismissing the claim of that Absentee Participating Driver. Any Non-Participating Driver's share of the Claims Amount will be "ratcheted back" by the Defendants and subtracted from the Settlement fund. However, any dismissed Absentee Participating Driver's share will be reallocated among the participating Plaintiffs. If 5 or more of the 367 Plaintiffs become Absentee Participating Drivers, Challenging Drivers, or Non-Participating Drivers, then the Defendants may withdraw from the Settlement by Dec. 17, 2018. In the event that the Settlement is funded, checks will be sent to the participating Plaintiffs. Those checks must be cashed within 90 days; the funds of any uncashed checks will be reallocated to a cy pres recipient designated by the Court. As events unfolded, many of these provisions became superfluous. By Nov. 13, 2018, 357 of 367 of the opt-in Plaintiff drivers had consented to participate in the Settlement (and two additional drivers had already had their claims adjudicated by the Court). Of the remaining eight drivers, two agreed to dismiss their claims with prejudice and not participate; one driver died with no identifiable heirs; and one driver was in bankruptcy proceedings, and the trustee verbally consented to the Settlement and stated an intention to seek approval from the bankruptcy court. The remaining four drivers had not responded by Nov. 13, 2018. Between Nov. 13, 2018 and Dec. 17, 2018, three of the remaining drivers contacted the Plaintiffs' counsel to consent to the settlement. As for the one remaining driver, the Plaintiffs' counsel made at least 20 attempts to contact him using priority mail and telephone, including leaving messages on a verified telephone number in both English and Spanish. That driver did not respond in any way to these efforts. The Plaintiffs' counsel has stated an intention to move to withdraw as counsel for that driver. No driver has challenged the terms of the Settlement. In connection with the motion for settlement approval, the Plaintiffs have filed an administrative motion to file under seal the notice that the Plaintiffs' counsel sent to each Plaintiff to alert them to the Settlement and their window to participate. The Plaintiffs contend that the notices are attorney-client privileged communications. They have filed a declaration in support of sealing. Judge Tigar denied the motion to seal. He cannot conclude that the notice documents to individual drivers are privileged because the Plaintiffs' counsel shared them with Defendants when they filed their motion to seal. Under the attorney-client privilege, it is a general rule that attorney-client communications made in the presence of, or shared with, third-parties destroys the confidentiality of the communications and the privilege protection that is dependent upon that confidentiality. The Clerk is ordered to file the documents on the public docket. The Judge concludes that (i) the Settlement resolves a bona fide dispute under the FLSA; (ii) given the risks to both sides, the Settlement is a fair and reasonable compromise; and (iii) the $2.9 million award to the Plaintiffs' counsel and the $246,187.97 in compensable costs in the litigation are reasonable. For the foregoing reasons, Judge Tigar granted the parties' motion for approval of their collective action settlement agreement. A full-text copy of the Court's April 17, 2019 Order is available at https://is.gd/I2cATX from Leagle.com. Phillip Flores, Plaintiff, represented by Timothy J. Becker, Johnson Becker, PLLC, Alexandra Whitney Robertson, Johnson Becker, PLLC, Caleb Marker -- caleb.marker@zimmreed.com -- Zimmerman Reed LLP, pro hac vice, Charles R. Ash -- cash@sommerspc.com -- Sommers Schwartz, P.C., pro hac vice, Christopher Paul Ridout, -- christopher.ridout@zimmreed.com -- Zimmerman Reed LLP, Jacob R. Rusch, Johnson Becker, PLLC, Jason J. Thompson, Sommers Schwartz, P.C., pro hac vice, Jennell Kristine Shannon, Johnson Becker, PLLC, pro hac vice, Jesse L. Young, Sommers Schwartz, P.C., Molly Elizabeth Nephew, Johnson Becker, PLLC, Neil B. Pioch, Sommers Schwartz, P.C., pro hac vice & Rod M. Johnston, Sommers Schwartz, P.C., pro hac vice. Darah Doung, individually and on behalf of all similarly situated individuals, Plaintiff, represented by Timothy J. Becker, Johnson Becker, PLLC, Alexandra Whitney Robertson, Johnson Becker, PLLC, pro hac vice, Caleb Marker, Zimmerman Reed LLP, pro hac vice, Charles R. Ash, Sommers Schwartz, P.C., pro hac vice, Christopher Paul Ridout, Zimmerman Reed LLP, Jacob R. Rusch, Johnson Becker, PLLC, Jason J. Thompson, Sommers Schwartz, P.C., pro hac vice, Jennell Kristine Shannon, Johnson Becker, PLLC, pro hac vice, Jesse L. Young, Sommers Schwartz, P.C., Molly Elizabeth Nephew, Johnson Becker, PLLC, Neil B. Pioch, Sommers Schwartz, P.C., pro hac vice & Rod M. Johnston, Sommers Schwartz, P.C., pro hac vice. TFI International Inc., a Foreign Corporation, Defendant, represented by Robert G. Hulteng -- rhulteng@littler.com -- Littler Mendelson, P.C., Alexander Hurd Scherbatskoy, Littler Mendelson, P.C., Andrew Michael Spurchise -- aspurchise@littler.com -- Littler Mendelson, P.C., Blair Amelia Copple -- bcopple@littler.com -- Littler Mendelson, P.C., Emily Erin O'Connor -- eoconnor@littler.com -- Littler Mendelson, P.C. & Paul Edward Goatley -- pgoatley@fisherphillips.com -- Littler Mendelson, P.C. TForce Final Mile, LLC, a Foreign Limited Liability Company, Defendant, represented by Robert G. Hulteng, Littler Mendelson, P.C., Andrew Michael Spurchise, Littler Mendelson, P.C., Emily Erin O'Connor, Littler Mendelson, P.C. & Paul Edward Goatley, Littler Mendelson, P.C. Ms. Elsa Lazarte, Miscellaneous, represented by Daniel Martinez de la Vega -- dvega@vegalawyer.com -- Law Offices of Daniel Vega. TOYOTA MOTOR: Class Action Over Camry Air Con Smell Certified ------------------------------------------------------------- David A. Wood, writing for CarComplaints.com, reports that a Toyota Camry air conditioning smell class action lawsuit has been certified for California owners and lessees of 2012-2015 Camrys. The lawsuit was filed by Camry drivers Gloria Ortega and Alfred Salas, both who claim the smells are enough to scare anyone out of the cars. Plaintiff Ortega says she owns a 2012 Toyota Camry that she uses each day along with the air conditioning. But the air conditioner allegedly emits an old moldy smell Ortega claims is like dirty socks. However, she says the smell dissipates "within seconds" after she turns the air conditioning to "recirc" mode. Plaintiff Salas owns a 2014 Camry and uses the air conditioning system every day, and each day allegedly has to cope with a smell "like dried-up urine in a fabric that's been out in the sun." Once the air conditioning "kicks in" the odor disappears and "completely" goes away after ten minutes. However, the plaintiff claims the "stench" is strongest after using the air-conditioning. According to the lawsuit, Camry occupants get sick from the mold that builds up on the evaporators that collect heat from the passenger cabins. In addition to moisture, the plaintiffs claim outside vents allow dead insects and leafy materials to enter the air conditioning systems. Toyota has allegedly known about the air conditioning smells because dealers have been sent technical service bulletins about owners who complained about bad odors. The judge ruled there is no doubt Ortega's Camry is fit for its ordinary purpose because she has driven tens of thousands of miles over a period of years, but the same can't be said of the Camry owned by plaintiff Salas. The smell described by Salas is different, typically will last a longer time and he says he must keep the windows cracked open while the air conditioning is on. Judge Fernando M. Olguin also ruled there is evidence to support the argument of design defects in the Camrys, although Toyota denies it. According to the ruling, there are "triable issues regarding the existence of a design defect that causes the foul odors at issue, and whether such odors are material." The Toyota Camry air conditioning smell class action lawsuit was filed in the U.S. District Court for the Central District of California - Salas, et al., v. Toyota Motor Sales, U.S.A. Inc., et al. The plaintiffs are represented by Capstone Law APC. [GN] TRICOR AMERICA: Cal. App. Affirms Arbitration Bid Denial in Velarde ------------------------------------------------------------------- In the case, JOAN VELARDE, Plaintiff and Respondent, v. TRICOR AMERICA, INC., Defendant and Appellant, Case No. A153351 (Cal. App.), Judge Mark B. Simons of the Court of Appeals of California for First District, Division Five, affirmed the trial court's order denying Tricor's petition to compel arbitration. In 2017, Velarde filed a wage and hour class action complaint against Tricor. Tricor filed a petition to compel arbitration, arguing the parties had executed a contract requiring arbitration of their disputes. It submitted three documents as evidence of the contract. First, Tricor submitted a February 2016 memorandum to employees stating Tricor is implementing an arbitration agreement. The second document Tricor submitted as evidence of the contract was a blank version of the two-page Arbitration Agreement, without the preceding memorandum. Third, it submitted a page containing only the line, "I have read the foregoing Mutual Agreement to Arbitrate Disputes, understand it and agree to abide by its terms," with the signature blocks completed by the Plaintiff and a Tricor representative. Tricor submitted declarations providing that, in February 2016, Tricor's Human Resources Manager attached the memorandum and Arbitration Agreement to each employee's paycheck; the Office Manager at Velarde's location "arranged for" employee paychecks and any attached documents to be distributed to each employee's "cubby"; and some employees, after signing the Arbitration Agreement, tore off the portion of the second page below the line of asterisks and returned only that portion to Tricor. At his deposition, the Plaintiff authenticated his signature on the torn-off page containing the Arbitration Agreement's signature block. He also testified he did not receive the entire Arbitration Agreement from Tricor, had never seen it, and had not discussed an arbitration agreement with anyone at Tricor. The Plaintiff testified it was Tricor's policy that everything be signed without questioning it or else one would lose the job. The trial court denied Tricor's motion to compel arbitration, finding Tricor failed to meet its moving burden of demonstrating the existence of an agreement to arbitrate this controversy. The trial court credited the Plaintiff's consistent statements that he did not receive the arbitration agreement. If he did sign the one-page signature sheet, it was because it was placed in his cubby and Tricor employees were expected to blindly sign everything or risk losing their jobs. The Plaintiff testified that he was never made aware that he was signing an arbitration agreement when given the one-page signature sheet to execute. Tricor filed a motion to strike the Plaintiff's respondent's appendix, arguing none of the appendix's five documents were part of the trial court record. Judge Simons disregards any references in the Plaintiff's response brief to the materials in his appendix. Because of this disregard, he denies as moot Tricor's motion to strike the Plaintiff's response brief or to order him file a new brief without references to the materials in his appendix. Tricor also seeks monetary sanctions against the Plaintiff for his violation of rule 8.124(g). The Judge has stricken the Plaintiff's appendix and declines to impose additional sanctions. Tricor argues the trial court erred in overruling its evidentiary objections. The Judge agrees in part, but finds the error harmless. He finds that the Plaintiff's use of his own deposition testimony was authorized by section 2025.620, subdivision (c)(1). As to other evidence, he finds that the trial court erred in admitting the Plaintiff's declarations. The authentication of the Spanish declaration does not address the Plaintiff's failure to provide an interpreter's certification with the English translation. However, the Judge also agrees with the Plaintiff that his deposition testimony provides the critical evidence in the case. The trial court's error in admitting the Plaintiff's declarations and discovery responses was harmless, and he does not rely on this evidence in his resolution of the appeal. Tricor argues the evidence shows the Plaintiff received the entire Arbitration Agreement. The Judge holds that the Plaintiff's deposition testimony, credited by the trial court, provides substantial evidence supporting the court's finding that the Plaintiff did not receive the entire Arbitration Agreement. Tricor also argues tge Plaintiff's execution of the signature page constitutes, as a matter of law, his agreement to be bound by the Arbitration Agreement. The Judge concludes that the executed signature page does not, as a matter of law, bind the Plaintiff to the terms of the Arbitration Agreement. In light of the foregoing, Judge Simons affirmed the Order. The Respondent is awarded his costs on appeal. A full-text copy of the Court's April 17, 2019 Opinion is available at https://is.gd/CkIVUh from Leagle.com. TUOLUMNE COUNTY, CA: $450K Deal in Ferzich FLSA Suit Has Approval ----------------------------------------------------------------- In the case, MARK KERZICH and TIMOTHY WERTZ, on behalf of themselves and all similarly situated individuals, Plaintiffs, v. COUNTY OF TUOLUMNE, Defendants, Case No. 1:16-cv-01116-DAD-SAB (E.D. Cal.), Judge Dale A. Drozd of the U.S. District Court for the Eastern District of California granted the parties' renewed motion for approval of their FLSA settlement agreement. The complaint in the action was filed on July 28, 2016, alleging that the Defendants had violated the FLSA by under-paying municipal employees' overtime when the employees accepted cash in lieu of healthcare benefits, following the holding in Flores v. City of San Gabriel. A scheduling order was entered on Nov. 1, 2016, setting a deadline for non-expert discovery to be completed by June 9, 2017 and expert discovery to be completed by Sept. 20, 2017. Prior to the passing of the discovery deadline, the parties stipulated to conditional certification of the action on Feb. 23, 2017. No substantive motion practice took place. A magistrate judge of the Court held two separate settlement conferences in the action, one on Oct. 2, 2017 and the other on Oct. 23, 2017. A settlement was reached following the second of those settlement conferences. After a hearing before Judge Drozd, and after supplemental briefing provided by the parties, on Aug. 14, 2018, the Court denied approval of the settlement agreement without prejudice. Following that denial, the parties engaged in an additional round of settlement negotiations under the direction of Magistrate Judge Barbara A. McAuliffe. The revised settlement agreement currently before the court is the product of those negotiations. The proposed settlement essentially encompasses three theories of liability the Plaintiffs have alleged against the Defendant. The first directly follows the decision in Flores v. City of San Gabriel, and alleges that any cash payments made to plaintiffs in lieu of healthcare benefits must be included in the calculation of overtime wages. The second theory is an expansion of the holding in Flores, and seeks to have the total payments for healthcare benefits made by defendant on behalf of the Plaintiffs included in the calculation of overtime, regardless of whether they were paid as cash directly to the Plaintiffs or were in the form of healthcare benefits secured for the Plaintiffs. Finally, the Plaintiffs seek to settle what they denote as their "canine claim," which concerns alleged underpayment of the dDefendant's canine police officers. The settlement agreement proposes a total payment of $450,000. This total amount is designated to the following categories: $227,000 in damages to the Plaintiffs for both Flores theories of liability; $25,000 in damages for the canine claim; $6,000 total as incentive payments, awarding $3,000 each to plaintiffs Kerzich and Wertz; and $192,000 in attorneys' fees and costs to the Plaintiffs' counsel. Notably, and in contrast to the prior proposed settlement, the Plaintiffs' counsel is not now seeking a further award of contingency fees. Judge Drozd is satisfied that there is a bona fide dispute at issue in the case. He also finds that proposed settlement is fair and reasonable. Given the counsels' level of experience, and given the prevailing rates in the Eastern District of California, the Judge finds the fee award proposed in the settlement reasonable. Lastly, he approves an incentive award in the amount of $3,000 to each of the named Plaintiffs. The named Plaintiffs will receive slightly more than double what the remaining Plaintiffs will receive, which is comparable to incentive awards previously found reasonable by the Court. For the reasons set forth, Judge Drozd approved the Settlement Agreement as fair, reasonable, and just in all respects as to the Plaintiffs and the parties will perform the Settlement Agreement in accordance with its terms. The Notice of Collective Action Settlement Claim Form and Release to be sent to all the Plaintiffs is approved. The Judge has made no findings or determination regarding the law, and the Motion and any exhibits and any of the other documents or written materials prepared in conjunction with the motion and order will not constitute evidence of, or any admission of, any violation of the law. Simpluris, Inc. will administer the issuance of the Claim Form and Release to all the Plaintiffs, receive and process completed Claim Form and Releases, issue payments to the Plaintiffs with appropriate withholdings, issue payments to the Plaintiffs' counsel, and otherwise manage the Settlement Amount as set forth in the Settlement Agreement. The Judge dismissed the action with prejudice. The Clerk of Court is directed to close the case. A full-text copy of the Court's April 19, 2019 Order is available at https://bit.ly/2JS8wj0 from Leagle.com. Mark Kerzich, on behalf of themselves and all similarly situated individuals & Timothy Wertz, on behalf of themselves and all similarly situated individuals, Plaintiffs, represented by Gary Marc Messing -- gary@majlabor.com -- Messing Adam & Jasmine LLP, Jason H. Jasmine -- jason@majlabor.com -- Messing Adam & Jasmine LLP & Donald Paul Bird, II -- Paul@MAJLabor.com -- Messing Adam & Jasmine LLP. County of Tuolumne, Defendant, represented by Arthur A. Hartinger -- ahartinger@publiclawgroup.com -- Renne Sloan Holtzman Sakai, LLC & Kevin P. McLaughlin, Renne Sloan Holtzman Sakai LLP. U.S. XPRESS: Robbins Arroyo Files Securities Fraud Class Suit ------------------------------------------------------------- Shareholder rights law firm Robbins Arroyo LLP announces that purchasers of U.S. Xpress Enterprises, Inc. (NYSE: USX) filed a class action complaint on April 2, 2019, against the company for alleged violations of the Securities and Exchange Act of 1933 pursuant to the company's June 2018 initial public offering ("IPO"). U.S. Xpress operates as an asset-based truckload carrier that provides services primarily in the U.S. According to the complaint, U.S. Xpress held its IPO in June 2018, offering its stock at $16.00 per share and generating over $245 million in proceeds based on misleading offering documents. In particular, U.S. Xpress failed to disclose that a shortage of trucks and employees and unexpected costs were negatively impacting the company's financial outlook. On November 1, 2018, the company revealed higher wages and independent contractor costs, lower than expected recruitment levels, and a higher insurance expense. On this news, the price of U.S. Xpress's stock dropped almost 30%, to close at just $7.10 per share on November 2, 2018, more than half the price of its IPO just months earlier, and has yet to recover. U.S. Xpress Shareholders Have Legal Options Concerned shareholders who would like more information about their rights and potential remedies can contact attorney Leo Kandinov at (800) 350-6003, LKandinov@robbinsarroyo.com, or via the shareholder information form on the firm's website. Contact: Leo Kandinov, Esq. Robbins Arroyo LLP 5040 Shoreham Place San Diego, CA 92122 Telephone: (619) 525-3990 Toll Free: (800) 350-6003 Website: www.robbinsarroyo.com Email: LKandinov@robbinsarroyo.com [GN] UBER: Glasgo Sues Over Nuisance Telemarketing Practices ------------------------------------------------------- MICHAEL GLASGO, individually, and on behalf of others similarly situated, Plaintiff, v. UBER TECHNOLOGIES, INC., a Delaware corporation, Defendant, Case No. 4:19-cv-02486-KAW (S.D. Fla., May 10, 2019) is an action arising under the federal Telephone Consumer Protection Act ("TCPA"), a remedial statute enacted in 1991 in response to consumer outrage over the proliferation of intrusive, nuisance telemarketing practices. UBER TECHNOLOGIES, INC.'s ("Uber") business is predicated on instantaneous automatic text message communications with its customers, yet despite this, Uber failed to take any corrective action to curb their violative practice of sending automated verification code text messages. Uber knew it was flagrantly violating the TCPA. However, Uber failed to take effective action to stop the violations, and chose to save on the costs of solving the problem at the expense of the privacy and frustration of its customers, says the complaint. Plaintiff Michael Glasgo is a natural person who was a resident of Hillsborough County, Florida. Uber Technologies, Inc. is a multinational corporation that provides transportation services that connects passengers to automobile drivers via Uber's iPhone and various smartphone applications.[BN] The Plaintiff is represented by: Scott D. Owens, Esq. SCOTT D. OWENS, P.A. 3800 S. Ocean Dr., Ste. 235 Hollywood, FL 33019 Phone: 954-589-0588 Fax: 954-337-0666 Email: scott@scottdowens.com - and - Leo W. Desmond, Esq. DESMOND LAW FIRM, P.C. 5070 Highway A1A, Suite D Vero Beach, FL 32963 Phone: 772.231.9600 Facsimile: 772.231.0300 Email: lwd@desmondlawfirm.com UBER: Has $132MM Earmarked for Settling Drivers' Suits ------------------------------------------------------ Drew Millard, writing for The Outline, reports that in a prospectus filed with the SEC prior to its IPO, Uber explained that its entire strategy was to dominate the transportation ecosystem, from taxi services to buses meal delivery to trucking to those e-scooter things that everyone hates, and outlast its competitors by hoping everyone else runs out of money before they do. Drivers around the world recently engaged in a 24-hour strike to protest Uber's IPO, as well as the fact that the company classifies them as "independent contractors" rather than actual employees. The company is also dealing with a class-action lawsuit brought by drivers who are fighting their independent contractor status, which it's currently attempting to settle while it's still in the "lose all our money on purpose" phase of its business. While the company claimed in a May 9 SEC filing that it believes "drivers are independent contractors," Uber clearly doesn't believe that too hard, because the filing goes on to reveal that Uber has $132 million squirreled away to pay to 60,000 drivers who are suing to be considered employees. Uber also notes that it has already given $20 million to its drivers to settle a similar lawsuit and expects the amount of settlement money it will shell out this year "will fall within an approximate range of $146 million to $170 million." [GN] VALVE SOFT: Quinault Nation Sues Over CS:GO Skins Betting --------------------------------------------------------- Casino.org reports that the Quinault Nation, a Native American tribe that operates a casino in the state of Washington, has filed a lawsuit against Valve Software accusing the gaming firm of facilitating and encouraging illegal online gambling through skins betting related to games like Counter Strike: Global Offensive (CS:GO). The lawsuit, which was filed in the Superior Court for the state of Washington in Grays Harbor County, was first reported by GeekWire on April 12. Lawsuit: Valve Engaging in Unfair Competition The Quinault Nation, which operates the Quinault Beach Resort & Casino in Ocean Shores, Washington, accuses Valve of fostering an environment in which illegal gambling can flourish. The suit also alleges that Valve is engaging in unfair competition with licensed and regulated casinos in Washington, which have to deal with extensive regulation in order to operate. In addition, the lawsuit references Valve's use of so-called "loot crates," which have been investigated as a potential form of gambling by regulators around the world. This is far from the first time that Valve has had to deal with the issue of skins betting. Skins, in this context, refer to cosmetic upgrades that players can purchase or unlock during gameplay. Players routinely swap these designer weapons with each other or sell them for cash. But on some third-party websites, users can also wager their skins in games of chance. A typical system has players put in an item as a bet, after which a random winner is chosen to win the entire pool of skins. The skins can also be wagered as bets on esports competitions. Skins Betting Rampant Despite Shutdown Efforts In 2016, a lawsuit was filed on behalf of a Connecticut resident who accused Valve of knowingly allowing illegal gambling sites to flourish. Valve then attempted to shut down many of the major skins betting sites with cease and desist letters, threatening operators with the loss of their Steam accounts. However, that seemed to do little to slow the rate of skins gambling. While Valve doesn't actually run any of these sites, they do get some benefits from their existence. The skins betting operations have to use Valve's software to facilitate the buying and selling of the items, and Valve takes a cut from each transaction. That's not to mention just how much the explosion of skins betting has fueled CS:GO's rise as a major esport. "Valve has profited handsomely for years from illegal online gambling, and has made only token efforts to stop it," the Quinault lawsuit reads. The lawsuit comes on the heels of a new class-action lawsuit against Big Fish, a Seattle-based social casino that has become a frequent target of legal action in Washington. Because state laws define gambling as "risking something of value on the outcome of a contest of chance," at least one federal court has rules that even the virtual chips in a play money casino could qualify as "something of value." That definition might play a critical role in the Quinault lawsuit against Valve as well. The filing references previous class action cases over skins betting that have gone to arbitration in the state of Washington. "Arbitrators ruled that Skins were a thing of value in that what the users were doing was gambling and was illegal," the lawsuit reads. [GN] VANDA PHARMACEUTICALS: Kuznicki Law Files Securities Fraud Suit --------------------------------------------------------------- The securities litigation law firm of Kuznicki Law PLLC issues the following notice on behalf of shareholders of the following publicly traded companies. Shareholders who purchased shares in these companies during the dates listed below are encouraged to contact the firm regarding possible appointment as lead plaintiff and a preliminary estimate of their recoverable losses. If you wish to choose counsel to represent you and the class, you must apply to be appointed lead plaintiff and be selected by the Court. The lead plaintiff will direct the litigation and participate in important decisions including whether to accept a settlement for the class in the action. The lead plaintiff will be selected from among applicants claiming the largest loss from investment in the respective securities during the class periods. Members of the class will be represented by the lead plaintiff and counsel chosen by the lead plaintiff. No classes have yet been certified in the actions below. Appointment as lead plaintiff is not required to partake in any recovery. Vanda Pharmaceuticals Inc. (NASDAQ: VNDA) Investors Affected: November 4, 2015-February 11, 2019 A class action has commenced on behalf of certain shareholders in Vanda Pharmaceuticals Inc. The filed complaint alleges that defendants made materially false and/or misleading statements and/or failed to disclose that: (1) Vanda was engaged in a fraudulent scheme in which it promoted the off-label use of Fanapt and Hetlioz; (2) Vanda was fraudulently receiving drug reimbursements from the government by abusing Medicare, Medicaid, and Tricare programs; (3) as a result of the scheme, Vanda faced legal action from the government; (4) Vanda's promotional materials for Fanapt and Hetlioz were false and misleading, garnering regulatory scrutiny from the U.S. Food and Drug Administration; and (5) as a result, defendants' statements about Vanda's business, operations and prospects were materially false and misleading and/or lacked a reasonable basis at all relevant times. Kuznicki Law PLLC is committed to ensuring that companies adhere to responsible business practices and engage in good corporate citizenship. The firm seeks recovery on behalf of investors who incurred losses when false and/or misleading statements or the omission of material information by a Company lead to artificial inflation of the Company's stock. Contact: Daniel Kuznicki, Esq. Kuznicki Law PLLC 445 Central Avenue, Suite 334 Cedarhurst, NY 11516 Phone: (347) 696-1134 Cell: (347) 690-0692 Fax: (347) 348-0967 Email: dk@kclasslaw.com [GN] VI DEVELOPMENT: Cuaya Sues Over Unpaid Minimum, Overtime Wages -------------------------------------------------------------- VICTOR COYOTL CUAYA, on behalf of himself, FLSA Collective Plaintiffs and the Class, Plaintiff, v. VI DEVELOPMENT GROUP, LLC d/b/a BREAD & BUTTER, 570 KCBS CORP. d/b/a BREAD & BUTTER, 401 KCBS CORP. d/b/a BREAD & BUTTER, 462 BKCS LTD. d/b/a BREAD & BUTTER, BKCS LTD. d/b/a BREAD & BUTTER, K&H 14 INC. d/b/a BREAD & BUTTER, FOOD & BEYOND LLC, d/b/a BREAD & BUTTER, TERENCE PARK, and BYUNG IL PARK, Defendants, Case No. 1:19-cv-04290 (S.D. N.Y., May 10, 2019) seeks to recover from Defendants: unpaid minimum wages, unpaid overtime, compensation for unpaid off-the-clock work, unpaid spread of hours premium, statutory penalties, liquidated damages, and attorneys' fees and costs pursuant to the Fair Labor Standards Act ("FLSA") and the New York Labor Law ("NYLL"). Plaintiff worked a combined total of more than 40 hours each workweek. However, Defendants failed to pay him all of the overtime premium due for those hours he worked in excess of 40 each workweek. Similarly, FLSA Collective Plaintiffs and Class Members were not paid their overtime premium for hours that they worked in excess of 40 each workweek, says the complaint. Plaintiff VICTOR COYOTL CUAYA was hired by Defendants to work as a cook for Defendants' Deli Restaurant in or around 2010 and was terminated in January 2019. Defendants operate a chain of deli restaurants as a single integrated enterprise under the shared trade name "Bread & Butter".[BN] The Plaintiff is represented by: C.K. Lee, Esq. Anne Seelig, Esq. LEE LITIGATION GROUP, PLLC 148 West 24th Street, 8th Floor New York, NY 10011 Phone: 212-465-1188 Fax: 212-465-1181 VIRGINIA BEACH: Bid to Decertify Class in Andreana Suit Denied -------------------------------------------------------------- In the case, JOSEPH H. ANDREANA, et al. Plaintiffs, v. VIRGINIA BEACH CITY PUBLIC SCHOOLS, and SCHOOL BOARD OF THE CITY OF VIRGINIA BEACH, Defendants, Civil Action No. 2:17-cv-574 (E.D. Va.), Judge Raymond A. Jackson of the U.S. District Court for the Eastern District of Virginia, Norfolk Division, denied the Defendants' Motion for Decertification. The action stems from a series of allegations of age discrimination against Virginia Beach public schools. The Plaintiffs claims that in 2015, Defendants Virginia Beach City Public Schools and the School Board of Virginia Beach informed all 104 Computer Resource Specialist ("CRS") employees that the position would cease to exist, and the Defendants would create only 84 Instructional Technology Specialist ("ITS") positions. The Defendants allegedly required all former CRSs to reapply to the new ITS positions, directly competing with other employees and the general public. Of the 104 former CRSs, 99 of them applied to be ITSs, while there were 100 other applicants. The Defendants used a "screening and evaluation process and policy" in selecting candidates for the ITS positions. The Plaintiffs claim that this process and policy was willfully discriminatory because it disregarded older candidates in favor of younger ones. They allege that the Defendants selected individuals for the ITS position based on age, even though the Plaintiffs allegedly were better qualified and met all expectations in carrying out their duties as CRSs. As a result of this alleged discrimination, the Plaintiffs allegedly were forced to accept positions with the Defendants at lower pay or retire. Named Plaintiff Joseph Andreana filed his Complaint for the collective action on Nov. 7, 2017 and alleged three claims under the Age Discrimination in Employment Act of 1967: disparate treatment, disparate impact, and pattern and practice discrimination. On May 9, 2018, the Court issued two Orders in the instant case. In its first Order, the Court conditionally certified the collective action under 29 U.S.C. Section 216(b). In its second Order, the Court granted in part the Defendant's motion to dismiss after finding that it did not have subject matter jurisdiction over the pattern and practice discrimination claim, but keeping the disparate treatment and disparate impact claims intact. On May 23, 2018, the Court approved Andreana's collective action notice. All additional Plaintiffs needed to file their notices to opt in by Aug. 21, 2018. After two opt-in Plaintiffs were dropped from the action, 11 Plaintiffs remain in the collective action. On March 11, 2019, the Defendants filed the instant Motion, which argues that the Plaintiffs are not similarly situated to allow a collective action under Section 216(b) for either their disparate treatment or disparate impact claims. The Plaintiffs filed a response in opposition on March 21, 2019, to which the Defendants replied on March 27, 2019. The Plaintiffs requested a hearing on the matter. Judge Jackson finds that where the plaintiffs hold similar titles, are located in the same location, and allege similar conduct, as the Plaintiffs do so, disparate treatment and disparate impact claims may continue in a collective action. Among the Plaintiffs, there are common questions of law, factual issues and relief sought. Therefore, the Judge finds the factual and employment settings factor of the decertification analysis weighs in favor of the Plaintiffs. The Judge also finds that a collective action does not necessitate that "there be no differences among class members," nor does it prohibit individualized inquiry "in connection with fashioning the specific relief or damages to be awarded to each class member." The Defendant has not shown that these defenses require substantial individualized determinations that would not lead to efficient adjudication. Therefore, the individualized defense factor of the decertification analysis weighs in favor of the Plaintiffs and supports the Court's finding that certified class treatment of the Plaintiffs' claims is appropriate. Finally, he finds that the fairness and procedural considerations factor supports the Plaintiffs. The Defendants contend that if the action is not decertified, it will need to prepare for eleven mini-trials of each Plaintiff because the claims are vastly different. However, the members of the collective share a common issue: whether the Defendants did not rehire the Plaintiffs as ITSs because of their age. Each individual Plaintiff would be unlikely to pursue his or her claim alone because of the costs involved relative to the damages sought. The fairness and procedural considerations factor weighs against the Defendants. For the reasons he stated, Judge Jackson concludes that the Plaintiffs are similarly situated to proceed as a collective. He denied the Defendant's Motion to Decertify the FLSA collective action class. He ordered the case to proceed as a collective action as conditionally certified, subject to the modifications in class membership previously ordered by the Court. The Clerk is directed to provide a copy of the Order to counsel and parties of record. A full-text copy of the Court's April 19, 2019 Memorandum Opinion and Order is available at https://bit.ly/2JOaEIz from Leagle.com. Joseph H. Andreana, Marie Gerdes, Philip M Hull, Lyn E Hebert, Gary Lennon, Victoria P Wilmouth, Deborah J Sholar, Patricia Kay Fesser, Mary-Ellen Davis, Gary Viado & Mary N. Smead, Plaintiffs, represented by James Richard Theuer -- jim@theuerlaw.com -- James R. Theuer PLLC. Virginia Beach City Public Schools & School Board of the City of Virginia Beach, Defendants, represented by Ann Katherine Sullivan -- slesoken@asksullivan.com -- Sullivan Law Group, P.L.C., Deborah Yeng Collins, Sullivan Law Group, P.L.C. & Melissa Morris Picco, Sullivan Law Group, P.L.C.. VIRGINIA TAN: Class Suit Over $30MM Ponzi Scheme Certified ---------------------------------------------------------- Bethany Lindsay, writing for CBC.ca, reports that a B.C. judge has certified a class action lawsuit filed against a West Vancouver woman who ran a $30-million Ponzi scheme -- allegedly with the help of her husband and son. North Vancouver's Jastram Properties Ltd. claims it lost more that $4.8 million in investments in Virginia Tan's fraud, according to a judgment from B.C. Supreme Court. Justice Joyce DeWitt-Van Oosten certified the claim as a class action on April 2, 2019, writing that at least 165 investors could be included in the suit. "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," the judge wrote. Two years ago, Tan admitted to the B.C. Securities Commission that she'd fraudulently raised at least $30 million from investors between 2011 and 2015. She agreed to a $3-million penalty, but as of November 2018, had yet to pay. Her husband, Patrick, and their adult son, Marcus, allegedly helped her raise the money. Jastram's suit says they repeated her lies about a non-existent investment opportunity and hid what was really happening. Six related companies are also named as defendants in the suit. A 'very safe' investment The class action alleges the elder Tans diverted the ill-gotten money to their son, and used it to purchase homes and other assets in his name or in the name of corporations he directed. That included six properties in Surrey, 24 in Fort St. John and one on the Sunshine Coast, according to the judge's decision. Jastram's director, Lale Doetsch, filed an affidavit saying she met Virginia Tan during a dinner at the Hollyburn Country Club in the summer of 2012. B.C. securities commission receives $4.8M penalty payment from partners in Ponzi scheme " Virginia Tan explained to me that she was providing bridge financing and she only lent money to people she knew who mainly operated businesses that were waiting to get paid for government jobs they had done," the affidavit says. "She said she had virtually no clients who defaulted and because of that the investments were very safe." Altogether, Jastram invested $6.6 million with the Tans but only received $1.8 million in returns, the suit says. According to her settlement agreement with the BCSC, Tan took the money in exchange for promissory notes, pledging to repay the investments within time frames ranging from one month to two years, at annualized rates of between 16 and 21 per cent. When the terms in those notes expired, many of the targets renewed their investments in exchange for new promissory notes. "Since Tan earned no business income, she made interest and principal payments to investors with funds raised from other investors," the agreement says. "Tan also co-mingled a relatively small amount of her personal funds with investor funds in her bank accounts, and used these accounts to make payments to investors." B.C. man who defrauded former Google exec gets house arrest By late 2015, she was out of money, and could no longer make the phoney interest payments. Jastram hired a forensic accounting firm last year to look into the Tans' operations, and their researchers found the scheme was "characteristic of and consistent with both the formal definition as well as an authoritative description of a Ponzi Scheme," the judgment says. Virginia and Patrick Tan were forced into bankruptcy in 2016. They are the subject of multiple other lawsuits, some of which may be joined into the class action. The allegations in the suit have not been proven in court. [GN] VISA INC: Renewed Bid for Class Cert. in EMV Chip Suit Pending -------------------------------------------------------------- Visa Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on April 26, 2019, for the quarterly period ended March 31, 2019, that the Plaintiffs in the EMV Chip Liability Shift, filed a renewed motion for class certification on July 16, 2018, following an earlier denial of the motion without prejudice. Plaintiffs' renewed motion was terminated without prejudice to reinstatement on October 17, 2018, but was subsequently reinstated and is currently pending. Visa Inc. operates as a payments technology company worldwide. The company facilitates commerce through the transfer of value and information among consumers, merchants, financial institutions, businesses, strategic partners, and government entities. Visa Inc. was incorporated in 2007 and is headquartered in San Francisco, California. VISALUS INC: Faces $925MM Damages in Robocall Class Action ---------------------------------------------------------- Law360 reports that an Oregon federal jury handed down a verdict in a certified class action that could subject health supplement marketer ViSalus to $925 million in robocall damages. [GN] The case is LORI WAKEFIELD, individually and on behalf of a class of others similarly situated, Plaintiffs, v. VISALUS, INC., Defendant, Case No. 3:15-cv-1857-SI (D. Or.). WAL-MART ASSOCIATES: Chaves Hits Discrimination, Illegal Discharge ------------------------------------------------------------------ Rosa M. Chaves, and other similarly-situated individuals, Plaintiff, v. Wal-Mart Associates, Inc., Defendants, Case No. 19-cv-00847, (M.D. Fla., May 3, 2019), seeks damages and injunctive relief for violations of the Family and Medical Leave Act of 1993. Wal-Mart Associates, Inc. operates Walmart Supercenter Store in Ocoee, Florida where Chaves worked as a full-time, hourly-paid department manager. Chaves is Puerto Rican by birth and claims to be harassed and discriminated because of her Hispanic ethnicity, mocking her accent, assigning her to the night shift most of the time and intentionally altering her clock-in time to make her appear late. She developed hypertension and filed for leave. She was eventually terminated for "excessive" absenteeism from her illness. [BN] Plaintiff is represented by: Zandro E. Palma, Esq. ZANDRO E. PALMA, P.A. 9100 S. Dadeland Blvd., Suite 1500 Miami, FL 33156 Telephone: (305) 446-1500 Facsimile: (305) 446-1502 Email: zep@thepalmalawgroup.com WALMART: Pontiac Retirees Set to Get Settlement Payout ------------------------------------------------------ Bill Laitner, writing for Detroit Free Press, reports that it was 2012 when a pint-sized David north of Detroit took on a well-known Goliath in Arkansas. Their epic struggle ended. Contrary to early predictions, a federal court in Arkansas approved a deal welcomed by David -- that is, the puny City of Pontiac General Employees Union Pension Fund. After a seven-year slug fest in and out of court, Pontiac's pensioners achieved a favorable settlement in a lawsuit over stock prices against the world's largest retailer, Walmart. These 1,200 retirees of city government in Pontiac, who live on modest pensions, have yet to receive official notification. And their joint nest egg of about $500 million soon will get merely a modest infusion of perhaps $20,000 or $30,000 -- the amount has yet to be calculated, their California lawyers say. But that's just a fraction of the total payout that retired city unionists in Pontiac have extracted from Walmart, on behalf of countless others nationwide and still more folks around the world. Under a settlement approved by a judge, Walmart is on the hook for a daunting $160 million. That sum that will go to make whole not only the Pontiac retirees but every Walmart stockholder across the nation and around the world who was cheated when investors were misled in a 2011 Walmart report to investors, according to allegations in the court filings. The report white-washed a massive bribery scandal by Walmart in Mexico, according to a review of the allegations by U.S. District Judge Susan Hickey in the Western District of Arkansas. Asked to comment, Walmart spokesman Randy Hargrove, from the company's headquarters in Bentonville, Arkansas, said. "There's really not much we're saying other than we're pleased with the final approval of this settlement." Under the settlement, "there was no decision on the merits of the case," Hargrove added, in an email. Walmart had slightly more to say back in October, after the two sides reached a preliminary agreement to settle the lawsuit. At that time, Walmart Executive Vice President and General Counsel Karen Roberts said: "We are pleased both sides could reach a resolution that ends this litigation. Years ago, we began making investments that have established a leading, comprehensive, worldwide ethics and compliance program for our business." The dollar amount of the recovery per share of stock won't be a windfall. It will vary from shareholder to shareholder, according to the prices they paid to buy the stock during a specific period. Investors who qualify will get back only what they lost, attorneys said. Still, the legal settlement put a big smile on Pontiac's former mayor, Walter Moore, 73, chairman of the city workers' pension fund. Moore said he's proud that the city's pensioners stood up to Walmart on behalf of numerous stockholders. "We in the public employee plans -- we have to take on these big companies because if we don't, nobody will," Moore said, over a salad in downtown Pontiac. Judge had a big stick Moore has followed the twists and turns of the complex case, and he said he's grateful to the federal judge in Western District of Arkansas: "She was amazing. She was soft-spoken but carried a big stick, you know?" The settlement is poised to benefit thousands of Walmart stockholders across the nation -- individuals as well as many pension funds, large and small -- who as plaintiffs had charged they'd been cheated by the retailing behemoth, said San Diego attorney Jason Forge, one of nine lawyers from three law firms who argued on behalf of Walmart investors in the class-action lawsuit. The Pontiac pensioners were the lead plaintiffs, suing "on behalf of all others similarly situated," according to the lawsuit. "There were many different class members, but Pontiac stepped up and represented everyone," said Forge, who grew up in Farmington Hills and attended law school at the University of Michigan. "They said, 'On behalf of everybody who bought high and sold low, we want to sue to recover those losses.' So this was for pensioners across the entire country," he said. As is typical in class actions, Forge and his colleagues spent years on the case without pay or any reimbursement for expenses, all the while hoping for a share of a big settlement. They'll get it. The three firms fighting for Pontiac's pensioners and for countless other stockholders would've earned nothing if their side had lost. Now they and the consultants they hired will share in a $48-million payday, Forge said. He said owners of Walmart stock should be grateful to Pontiac's former mayor, who steadfastly nudged the pension fund's board members into suing. "If it wasn't for the Walter Moores of the world, a lot of individual shareholders would suffer in situations like this. The government doesn't get the job done in these cases. It's really up to the courts to expose these situations and punish corruption," said Forge, who signed key briefs in the case on behalf of his law firm– Robbins Geller Rudman & Dowd in San Diego. Meanwhile, an investigation of Walmart by federal authorities is grinding slowly on with no end in sight, he said. Blue vests and bribes In the long-running securities class-action lawsuit just settled, which will be known to generations of future law school students as City of Pontiac General Employees' Retirement System v. Wal-Mart Stores Inc., the small union pension plan represented any individual or group anywhere that bought "or otherwise acquired" Walmart stock between December 8, 2011, and April 20, 2012. Walmart in 2018 was listed by Forbes magazine as the world's largest company, both in revenues -- more than $500 billion -- and in staff size, with 2.2 million employees. According the judge's Report and Recommendation, the company apparently loomed large in unethical dealings too. First, that judge's report reiterated the lawsuit's allegations: that Walmart was guilty of years of corruption, as it spread about $24 million in bribes across Mexico so that it could rapidly overcome zoning and political hurdles to become in short order Mexico's biggest retailer. Then, after the bribes came to the attention of Walmart's top executives, emails showed that company brass covered up the illegal deals for years, according to the allegations. Finally, just when the retailer's to management learned that the New York Times would soon expose the bribery, after a former Walmart executive tipped off a reporter, Walmart -- instead of coming clean with investors -- filed false statements about the corruption with the Securities and Exchange Commission that misled countless investors, according to the New York Times' account. The result? Investors, including many pension funds, bought the stock when it was priced above $60 and then saw it drop about 5% immediately after the New York Times' Pulitzer Prize-winning article came out in April 2012, the lawsuit goes on to charge. As seems to occur often in complex legal cases, the initial wrong-doing was not so much the stumbling block for this particular Goliath. Instead, it was the subsequent cover-up of the corruption that made humongous Walmart vulnerable to the legal slings of a small pension fund situated 30 miles north of Detroit. Still, the little guys took on a giant in federal court and came out smiling. The hope and promise behind this case were enough to draw the attention not only of the New York Times but also from numerous financial publications. News stories about the historic settlement helpful to the Pontiac pension fund and to many other Walmart investors splashed Walter Moore's name and references to Pontiac onto numerous legal and stock-watching websites, from Yahoo Finance to Law360.com, as well as into the pages of the New York Times. The financial outcome, but even more the moral victory of Pontiac's pensioners, "makes me feel so good," Moore said. [GN] WEINSTEIN CO: Court Narrows Claims in 1st Amended Geiss RICO Suit ----------------------------------------------------------------- In the case, LOUISETTE GEISS et al., Plaintiffs. v. THE WEINSTEIN COMPANY HOLDINGS LLC, et al., Defendants, Case No. 17 Civ. 9554 (AKH) (S.D. N.Y.), Judge Alvin K. Hellerstein of the U.S. District Court for the Southern District of New York granted in part and denied in part the Defendants' motion to dismiss the First Amended Complaint. The action by 10 Plaintiffs -- Zoe Brock, Caitlin Dulany, Louisette Geiss, Larissa Gomes, Katherine Kendall, Nannette Klatt, Melissa Sagemiller, Sarah Ann Thomas, Melissa Thompson, and Jane Doe -- individually and on behalf of a class, against Harvey Weinstein, his former companies, and certain officers and directors of those companies, charges that H. Weinstein sexually harassed and assaulted them between 1993 and 2011, and that the other defendants knew of, facilitated, and covered up his misconduct. The Plaintiffs filed their original complaint on Dec. 6, 2017. The Defendants moved to dismis. The Court held oral argument on Sept. 12, 2018. It dismissed the complaint with leave to replead and ordered that the two related cases -- the Geiss class action, involving the TWC Subclass, and the Dulany class action, involving the Miramax Subclass, then under docket no. 18 Civ. 4857 -- proceed together via one amended complaint. The Plaintiffs filed the FAC on Oct. 31, 2018. The FAC contains 18 counts, including four federal claims for violations of the Trafficking Victims Protection Act ("TVPA") (Counts I and II) and Racketeer Influenced and Corrupt Organizations Act ("RICO") (Counts V and VI), and fourteen state claims for negligent supervision and retention (Counts III and IV), battery (Counts VII and VIII), assault (Counts IX and X), false imprisonment (Counts XI and XII), intentional infliction of emotional distress (Counts XIII and XIV), negligent infliction of emotional distress (Counts XV and XVI), and ratification (Counts XVII and XVIII). The state law claims fall into two categories: (i) allegations against Miramax Film NY, LLC; The Walt Disney Co., Disney Enterprises, Inc., Buena Vista International, Inc.; and certain officers of these companies, for conduct occurring before Sept. 30, 2005; and (ii) allegations against The Weinstein Co. Holdings, LLC ("TWC") and certain officers and directors of TWC for conduct occurring after Sept. 30, 2005. Irwin Reiter, a Vice President at Miramax and then TWC, was dismissed from the lawsuit on Dec. 13, 2018. The Defendants again moved to dismiss under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, and the Court held oral argument on those motions on March 13, 2019. Judge Hellerstein (i) denied Harvey Weinstein's motion to dismiss the TWC Subclass's TVPA claim (Count I), and (ii) dismissed all other claims against all other Defendants (Counts II - XVIII). The Judge finds that the TVPA participation claims (Count II) fail to allege receipt of a benefit from participation in sex trafficking, the RICO claims (Counts V and VI) fail to allege injury to business or property caused by a RICO violation, and the state law claims (Counts III, IV, VII - XVIII) are untimely under the applicable statutes of limitations. Accordingly, the Miramax Subclass has no remaining claims, there are no remaining claims against any of the Corporate Defendants, and no remaining claims against any of the Individual Defendants, except Count I against Harvey Weinstein. Jane Doe's state law claims are dismissed without prejudice. All other dismissals are with prejudice. The Clerk will terminate the open motions (ECF Nos. 199, 239, 241, 246, 254, and 272). The remaining parties will appear for a status conference on June 4, 2019 at 11:00 a.m. A full-text copy of the Court's April 17, 2019 Order and Opinion is available at https://is.gd/0lKEba from Leagle.com. Louisette Geiss, individually and on behalf of all others similarly situated, Katherine Kendall, individually and on behalf of all others similarly situated, Zoe Brock, individually and on behalf of all others similarly situated, Sara Ann Thomas, individually and on behalf of all others similarly situated, Melissa Sagemiller, individually and on behalf of all others similarly situated & Nannette Klatt, individually and on behalf of all others similarly situated, Plaintiffs, represented by Elizabeth A. Fegan -- beth@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, Robert Bruce Carey -- rob@hbsslaw.com -- Hagens, Berman, Sobol, Shapiro, LLP, Shelby Smith -- shelbys@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, Steve W. Berman -- steve@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, Whitney K. Siehl, Hagens Berman Sobol Shapiro LLP & Jason Allen Zweig -- jasonz@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP. Jane Doe, Nannette May, Melissa Thompson, Caitlin Dulany & Larissa Gomes, Plaintiffs, represented by Whitney K. Siehl, Hagens Berman Sobol Shapiro LLP & Elizabeth A. Fegan, Hagens Berman Sobol Shapiro LLP. The Weinstein Company Holdings LLC, Defendant, represented by Gerald Leonard Maatman, Jr. -- gmaatman@seyfarth.com -- Seyfarth Shaw LLP, Karen Yasmine Bitar -- kbitar@seyfarth.com -- Seyfarth Shaw LLP, Lorie Elizabeth Almon -- lalmon@seyfarth.com -- Seyfarth Shaw LLP, Lynn A. Kappelman -- lkappelman@seyfarth.com -- Seyfarth Shaw LLP & Scott Roblan Rabe -- srabe@seyfarth.com -- Seyfarth Shaw LLP. Miramax Film NY, LLC, Defendant, represented by Laura R. Washington, Latham & Watkins LLP & Marvin S. Putnam, Latham & Watkins LLP. Harvey Weinstein, Defendant, represented by Phyllis Kupferstein, Kupferstein Manuel LLP, Brian Pete, Lewis Brisbois Bisgaard & Smith LLP & Elior Daniel Shiloh, Lewis Brisbois Bisgaard & Smith LLP. Robert Weinstein, Defendant, represented by Abigail Flynn Coster, Schulte Roth & Zabel LLP, Barry A. Bohrer, Schulte Roth & Zabel LLP, Brian Theodore Kohn, Schulte, Roth & Zabel LLP & Gary Stein, Schulte Roth & Zabel LLP. WINN MGMT: Uncashed Funds Distribution to Legal Aid at Work Granted ------------------------------------------------------------------- In the case, ADAM GOODWIN, Plaintiff, v. WINN MANAGEMENT GROUP, LLC, Defendant, Case No. 1:15-cv-00606-DAD-EPG (E.D. Cal.), Judge Dale A. Drozd of the U.S. District Court for the Eastern District of California granted the parties' joint stipulation to distribute uncashed funds to cy pres recipient Legal Aid at Work. On Feb. 23, 2018, the Court granted final approval of the class action and FLSA settlement reached in the case. According to the parties, the unclaimed funds resulting from the settlement in the matter total $3,162.51. On March 12, 2019, the Court-appointed Settlement Administrator, CPT Group, Inc., informed the counsel that the California Department of Industrial Relations ("DIR") would not accept the unclaimed wage claim funds because the funds collected and sent were not investigated by the DIR and because the amounts due to workers were not confirmed by the DIR. Because the DIR will not accept the unclaimed funds, the parties have identified Legal Aid at Work as the alternate cy pres recipient of those unclaimed funds. The parties represent to the Court that Legal Aid at Work operates several free legal clinics and helplines that were specifically created to provide direct, individualized help to workers across California. These clinics include: Workers' Rights Clinic, Workers' Disability Law Clinic, and Wage Claim Clinic. They also represent that naming Legal Aid at Work as the cy pres recipient will account for the nature of the instant lawsuit, which alleged unpaid overtime and penalties, the objectives of the underlying statute, and the interests of the silent class members. Based on this information provided by the parties, Judge Drozd is satisfied that Legal Aid at Work is an appropriate cy pres recipient of the unclaimed funds in the case. Accordingly, he granted the parties' joint stipulation to distribute uncashed funds to cy pres recipient Legal Aid at Work. A full-text copy of the Court's April 17, 2019 Order is available at https://is.gd/XarSLa from Leagle.com. Adam Goodwin, individually and individually on behalf of all others similarly situated, Plaintiff, represented by Michael Malk -- mm@malklawfirm.com -- Michael Malk, Esq., Apc. Winn Management Group LLC, a Massachusetts Limited Liability Company, Defendant, represented by Mark J. Jacobs -- mjacobs@laborlawyers.com -- Fisher & Phillips LLC & Shaun Jordan Voigt -- svoigt@fisherphillips.com -- Fisher & Phillips LLP. ZALE DELAWARE: Leos Suit Removed to E.D. California --------------------------------------------------- The case captioned CAROLINA LEOS, on behalf of herself and others similar situated, Plaintiff, v. ZALE DELAWARE, INC., a Delaware corporation; and DOES 1 to 100, Inclusive, Defendants, Case No. 34 2019-00253281 was removed from the Superior Court of the State of California in and for the County of Sacramento to the United States District Court for the Eastern District of California on May 9, 2019, and assigned Case No. 2:19-at-00363. Plaintiff's Complaint asserts six causes of action: Failure to pay overtime wages at the legally required rate in violation of Cal. Lab. Code and the Industrial Welfare Commission's ("IWC") Wage Orders; Failure to pay meal and rest break premiums at the legally required rate in violation of Cal. Lab. Code and the IWC Wage Orders; Failure to pay minimum wage or overtime pay for all hours worked in violation of Cal. Lab. Code and the IWC Wage Orders; Failure to provide complete and accurate wage statements in violation of Cal. Lab. Code; Failure to timely pay unpaid wages due at time of separation of employment in violation of Cal. Lab.; and Unfair business practices in violation of California's Unfair Competition Law ("UCL").[BN] The Defendants are represented by: Matthew C. Kane, Esq. Amy E. Beverlin, Esq. MCGUIREWOODS LLP 1800 Century Park East, 8th Floor Los Angeles, CA 90067 Phone: (310) 315-8200 Fax: (310) 315-8210 Email: mkane@mcguirewoods.com abeverlin@mcguirewoods.com - and - Sylvia J. Kim, Esq. Two Embarcadero Center, Suite 1300 San Francisco, CA 94111 Phone: (415) 844-9944 Fax: (415) 844-9922 Email: skim@mcguirewoods.com ZILLOW GROUP: Faces Legal Action Over Co-Marketing Program ---------------------------------------------------------- NewsOK.com reports that Zillow is back in hot water: A class-action suit against the online realty giant is moving forward after insider whistleblowers alleged that the company designed its controversial "co-marketing" program to violate federal anti-kickback laws. Zillow termed the charges "without merit" and says it intends to "vigorously defend" itself. Best known to the general public for its Zestimates property-valuation feature, Zillow is a multibillion-dollar, publicly traded behemoth whose principal revenues come from advertising placed by realty agents. So-called "premier" agents and brokers, who receive prominent placement on Zillow-listed home sites, pay hundreds or thousands of dollars a month in advertising fees to the company. Premier agents need not be the highest-volume or most successful agents in their area; they simply need to pay for the label. Zillow earned nearly $900 million, two-thirds of its corporate revenue, in fees from agents paying for ads last year, according to the company's latest filing with the Securities & Exchange Commission. In 2013, Zillow rolled out a program whereby realty agents could have large portions of their advertising fees paid for by lenders who share advertising costs with them. Buyers interested in a particular property could then contact not only an agent but a lender to shepherd them through the financing process. The idea proved wildly popular among agents and lenders. For paying part of an agent's Zillow advertising fees -- initially up to a maximum of 90 percent, later revised to 50 percent -- a lender could get hot leads directly to active buyers. For realty agents, the attraction was obvious. Hey, why not? Lenders will subsidize my costs. However, a federal law known as RESPA -- the Real Estate Settlement Procedures Act -- prohibits payment of fees for business referrals among realty, mortgage and title industry providers that are not for services actually rendered. In April 2017, the Consumer Financial Protection Bureau informed Zillow that it was investigating whether its co-marketing program violated the law's prohibition against kickbacks. Zillow negotiated with the CFPB, but last year, after the Trump administration appointed a new CFPB director, the agency abruptly dropped the case. Meanwhile, investors who said they purchased Zillow stock at inflated prices relying on company executives' statements that its co-marketing concept did not violate federal law filed a class-action suit alleging securities fraud. A district court judge later dismissed portions of the suit but allowed the plaintiffs to file an amended complaint if they presented conclusive evidence that the co-marketing scheme violated RESPA. They appear to have done so successfully, at least enough to convince a federal district court judge to put the case back on track. Last November, the plaintiffs filed their amended complaint, bolstered by testimony from two unnamed Zillow insiders. The first: a regional sales manager for the company who alleged that lenders participated in the program because they "expected real estate agents to refer business." The second: a sales and operations trainer who alleged that "every agent and lender knew that the co-marketing program was for the lender to get leads and referrals. ... It was understood that lenders were paying for referrals." Whenever the second insider "spoke to Zillow about potential concerns with the co-marketing program," she was told "not to ask questions," according to the court. She also alleged that she knew of a lender who had been paying 100 percent of a realty agent's fees for 2.5 years. Both whistleblowers provided "consistent testimony regarding how agents and lenders used the (program) to provide mortgage referrals in exchange for advertising payments," according to the court. In his decision, which was handed down April 19, Judge John C. Coughenour, of the U.S. district court in Seattle, said "the court can draw a reasonable inference that Zillow designed the co-marketing program to allow agents to provide referrals to lenders in violation of RESPA." Asked for his take on the case, Marx Sterbcow, Esq. -- marx@yourrealestatelawyer.com -- a nationally known RESPA lawyer based in New Orleans, told me "the court certainly seems to suggest there is a lot of smoke involving the legality of Zillow's" program. If the whistleblowers' allegations are correct, he said, "it could cause (mortgage companies) and banks to pull completely out" of the program, for fear of violating RESPA themselves, and being exposed to major legal jeopardy. The significance for buyers, sellers and owners? The case is still out on the alleged federal law violations, but now when you see "premier" agents linked up in marketing efforts with lenders, you have a better idea about what's really going on.[GN] [*] Carlton Says Class Action Defense Spending Continues to Rise ---------------------------------------------------------------- The eighth annual Carlton Fields Class Action Survey reveals a continuing rise in class action defense spending, driven by more matters per company facing these cases, and, collectively, more complex, high risk, and bet-the-company matters than ever reported in past surveys. In total, companies spent $2.46 billion defending class actions in 2018 and spending and the number of class actions defended by company are expected to increase again in 2019. It was the fourth consecutive annual rise in spending after steadily decreasing expenditures from 2010 to 2014. The number of companies that reported facing class actions in 2018 dropped slightly to 54%, but the average number of matters per company increased from 6.3 in 2017 to 7.8 in 2018. The 2019 Carlton Fields Class Action Survey is based on interviews with general counsel or senior legal officers at 395 Fortune 1000 and other large companies across a variety of industries. The survey found that labor and employment cases remain the most common type of class action, accounting for 28.7% of matters and 26.1% of spending. In the past five years, nearly two-thirds of companies have faced at least one labor and employment class action and, overwhelmingly, companies report that wage and hour matters are their top concern in this category. "As predicted, class action defense spending rose again in 2018 and this is likely to continue through 2019," said Julianna McCabe, director of Carlton Fields' Class Action Survey and chair of the firm's National Class Actions practice group. "As the resources and financing available to pursue these costly matters have become increasingly available, the volume and complexity of the class actions filed continues to rise. In-house legal departments are dedicating significant resources to these cases and relying on outside counsel for help in making early assessments of their win-loss probabilities, among other factors." While most companies have not yet faced a data privacy class action, survey results show that they predict these cases as the next wave. The percentage of companies making such a prediction nearly doubled from last year's survey, increasing from 28.9% to 54.3%. Eighty-six percent of companies have an action plan in place to address and limit the impact of a data breach, including class action exposure. Nearly 9% of companies identified collective actions under the European Union's new privacy regulation (the GDPR) as a next wave, a significant enough number that it was reported separately in the survey. Approximately two-thirds of companies reported concern stateside, about the impending California Consumer Privacy Act. Among additional key findings: -- Companies increased their use of contractual arbitration clauses in 2018, and the percentage of companies that included class action waivers in their arbitration agreements increased to near 50%. More companies now use arbitration clauses that bar class actions than in any previous survey. -- Exposure, win probability, the relevant case law and facts, and reputational impact were the class action risk variables companies ranked as most important, and more than 95% of companies report relying on outside counsel for an early assessment of win-loss probability. -- Increasingly, companies facing class actions employ a case-by-case approach to class action management, 53.2% reporting that they defend at the right cost, assessing each case separately. Only 10.6% say they prefer to settle such matters early, while 21.3% take an aggressive stance and 14.9% employ a "defend at all costs" strategy. -- Still, cases filed as class actions are most often resolved by settlement, with 53.1% of companies reporting that settlements typically occur pre-certification. Thirty-nine percent of matters filed as class actions are settled on an individual basis. -- Companies are taking notice of the impact of the political climate in Washington on their management of class actions, with 23.5% of companies reporting that it affects regulatory oversight and involvement relevant to class actions. -- The use of alternative fee arrangements (AFAs) in class actions declined slightly in 2018. More companies identified fixed fees as a successful type of AFA for class actions than any other type of arrangement. -- Finally, while most companies have not seen a reduction in class action discovery costs as a result of the federal proportionality standard, companies employ a host of strategies to control electronic discovery costs: among others, the aggressive negotiation of reasonable search terms; the use of a single e-discovery vendor; and the filing of motions to stay or for cost-shifting. The Carlton Fields Class Action Survey is widely recognized as a powerful resource for in-house counsel who want to manage class actions effectively and efficiently. Participating companies in the 2019 survey had an average annual revenue of $14.8 billion and median annual revenue of $6.7 billion. They operate in more than 25 industries, including banking and financial services, consumer goods, energy, high tech, insurance, manufacturing, pharmaceuticals, professional services, and retail trade. To download the 2019 Carlton Fields Class Action report, please visit www.classactionsurvey.com. About Carlton Fields Carlton Fields -- http://www.carltonfields.com-- has more than 300 attorneys and government and financial services consultants serving clients from offices in California, Connecticut, Florida, Georgia, New Jersey, New York, and Washington, D.C. The firm is known for its national litigation practice, including class action defense, trial practice, white-collar representation, and high-stakes appeals; its insurance practice, including life and financial lines, property and casualty, reinsurance, and title insurance; its regulatory practice; and its handling of sophisticated business transactions and corporate counseling for domestic and international clients. (Carlton Fields practices law in California through Carlton Fields, LLP.) [GN] [*] U.S. Chamber Institute Calls for TCPA Class Action Reform ------------------------------------------------------------- ACA International disclosed that a new video released by the U.S. Chamber Institute for Legal Reform discusses the importance of updating the antiquated Telephone Consumer Protection Act so that it is more reflective of real-world, modern technology and no longer serves as a vehicle for frivolous lawsuits. "What's worse than getting a call or text from a spammer? How about trial lawyers who make tens of millions of dollars off everyone's misery?" the message states. Additionally, unclaimed money from class action lawsuits is often awarded to interest groups, which give those advocates another (monetary) reason to fight for a broad definition of an auto dialer. Due to the importance of open communication between businesses and consumers in the methods they prefer and the impact of the TCPA requirements on legitimate callers, ACA International continues to advocate with the FCC and Congress for a clear interpretation of the law, definition of an autodialer and compliance expectations that will prevent frivolous class action litigation. The FCC must act to clarify its interpretations of the TCPA as directed by the D.C. Circuit Court of Appeals (D.C. Circuit) after the decision in ACA Int'l v. FCC. [GN] ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2019. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000. *** End of Transmission ***