/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/190909.mbx C L A S S A C T I O N R E P O R T E R Monday, September 9, 2019, Vol. 21, No. 180 Headlines 45 MERCER: Fails to Pay Proper Wages, Ballinas et al. Claim ACACIA COMMS: MOU Reached over Dismissal of Cisco Merger Suits ACTION TOWING: Adikhanov Sues over Deceptive Billing Practices ADVENTURE BOUND: Murphy Asserts Breach of Disabilities Act ALPHA CONSTRUCTION: Bid to Certify Class in Torres-Tinajero Denied ALTA MESA: Continues to Defend Securities Class Suit in Texas AMERICAN MIDSTREAM: Sold to ArcLight Too Cheaply, Thomas Asserts ANGLIN'S BEACH: Court Denies Bid for Class Certification ANGLIN'S BEACH: Vertilus Moves for Class Certification and Notice AO SMITH: Bid to Appoint Lead Plaintiff Underway APPLE INC: Court OKs Admin Bid to Relate Cameron, Sermons Cases ATLANTIC COLLECTION AGENCY: Gonzalez Sues over FDCPA Violations AXOS FINANCIAL: Appeal in Calif. Securities Class Suit Underway AXOS FINANCIAL: Appeal in Mandalevy Class Suit Underway BANK OF AMERICA: Key et al. Sue over Overdraft Fees BILOXI HMA: Henley Files Class Suit in Mississippi BIMBO BAKERIES: Burke et al. Seek OT Premium Pay BIMBO BAKERIES: Oddo Seeks to Certify FLSA Collective Action BIOTIME INC: Case Management Hearing in Lampe Suit on Sept. 17 BOB MOORE: Court Stays Class Claims Pending Arbitration BRINKER INTERNATIONAL: Has Incurred $4.2MM in Cyber Security Suit BURFORD CAPITAL: Faces Merz Securities Suit in E.D. New York CALVARY PORTFOLIO SERVICES: Neumann Suit Transferred to S.D.N.Y. CANCER GENETICS: Bid to Dismiss NJ Consolidated Suit Still Pending CARDINAL HEALTH: Continues to Defend Louisiana Sheriffs Fund Suit CARDINAL HEALTH: Facing Bellwether Trial in Opioid Suit in October CARRIZO (MARCELLUS): Court Denies Common Benefit Fund in Slamon CASA SYSTEMS: Hook Sues over 2017 IPO CBE GROUP: Placeholder Bid for Class Certification Filed CBS CORP: Bid to Dismiss New York Consolidated Class Suit Pending CEMTREX INC: Court Approves Securities Class Action Settlement CHAMPION PETFOODS: Reitman et al Seek to Certify Class CHI NEBRASKA: Has Made Unsolicited Calls, Blackbourn Suit Claims CHICO'S FAS: Mediation in Fisher Class Suit Next Month CHICO'S FAS: Petition for Rehearing in Altman Suit Pending CHILDREN'S PLACE: Court Lifts Stay in Rael Class Action CORNERSTONE BUILDING: Still Defends Voigt Class Suit COSTCO WHOLESALE: Demurrer to Complaint in Littlejohn Affirmed CREDIT SUISSE: Court Narrows Claims in E. Halbert Securities Suit CUSHMAN & WAKEFIELD: Underpays Appraisers, Bursey Alleges D & A SERVICES: Spera Sues over Collection Letter, Unfair Interest D. & B. CORP: Breached 2013 Settlement, Jenks Claims DESMOND FOODS: Suggs Seeks Overtime Pay DIAMOND RESORTS: Spurling et al. Seek to Recover Unpaid Wages DLING MEDICAL AESTHETIC: Wang Sues over Labor Law Violations DOTERRA INTERNATIONAL: Jones Files ADA Class Suit in New York DYCK O'NEAL INC: Cheeks Sues over FDCPA Violations FACEBOOK, INC: Adkins Seeks to Certify Two Classes FIELDWORK, INC: "Damasco" Bid for Class Certification Filed FLINT, MI: Mich. App. Flips Dismissal of Contaminated Water Suit FORD MOTOR: Court Denies Class Certification Bid in C. Van Suit FRIENDLY'S MANUFACTURING: Fields Files Fraud Class Suit in New York FRONTLINE ASSET: Placeholder Bid for Class Certification Filed GENERAL ELECTRIC: Court Issues Confidential Info Production Order GOLUB CAPITAL: Bushansky Suit Over Fifth Ave. Merger Underway HAIN CELESTIAL: Stockholders' Consolidated Class Suit Still Stayed HECLA MINING: Faces 2 Securities Class Suits in SDNY HERTZ CORPORATION: Conditional Class Certification Sought HERTZ CORPORATION: Court Narrows Claims in Bradley Suit HICKORY RIDGE: Murphy Files ADA Class Action in New York HR STAFFING: Martinez-Zungia Sues Over Unpaid Minimum & OT Wages HUDSON VALLEY: Objections to Denial of Spoliation Sanctions Junked HUNTINGTON NATIONAL: Ohio Flips Appeals Ruling in Cheatham IRA Suit ILLINOIS: Court Denies Class Certification & Tosses Perconti Suit INDIANA: Jeffers' Pro Se Rights Dismissed as Class Suit INSTANT CHECKMATE: Fischer et al. Suit Transferred to N.D. Ill. INTEL CORP: Mishandled Retirement Plan Investment, Anderson Says JARROW FORMULAS: Bid for Class Certification Denied KEURIG GREEN: Diaz Files ADA Class Suit in New York KIDDING AROUND: Conner Files Class Suit under Disabilities Act LABORATORY CORP: Covance Faces Mitchell Class Suit in Pennsylvania LABORATORY CORP: Faces Ignacio Class Suit in California LABORATORY CORP: Faces Jan Class Action Suit in California LAKE ARBOR 80M TIC: Russell et al. Suit Transferred to W.D.N.C. LAND O'FROST: Accused by Kelly of Reprisal Over Use of FMLA Leave LANNETT CO: Conspiracy Claims in Generic Drugs Suit Stand LANNETT CO: Final Settlement Approval Hearing Set for Feb. 2020 LANNETT CO: Suit over Drug Pricing Methodologies Underway LEGAL & GENERAL: Life Insurance Policy Violates RICO, Suits Say LOANCARE LLC: Court Denies Dismissal of Hamilton FDCPA Suit LOUISIANA: Class of Medicaid Recipients Certified in AJ Suit LUMENTUM HOLDINGS: Oclaro Still Defends Karri Class Action LVNV FUNDING: Bowman Files Class Suit under FDCPA MACHOL & JOHANNES: Class Settlement in A. Blanks Suit Has Final OK MCNEIL GROUP: Agrees to Certification of Class in Harbour Suit METROPOLITAN LIFE: 9th Circuit Appeal in Martin Suit Still Pending METROPOLITAN LIFE: Continues to Defend Miller Class Action METROPOLITAN LIFE: Still Defends Julian & McKinney Suit MHC LAKE GEORGE: Murphy Alleges Violation under ADA MIDLAND CREDIT: Atwood Sues over Debt Collection Practices MIDLAND CREDIT: Balluch Sues over Debt Collection Practices MIDWEST RECEIVABLE: Court Stays Bid for Class Certification MISS LASER: Underpays Technicians, Caicedo Soto Suit Alleges MONAT GLOBAL: Jones Alleges Violation under ADA MUNCHERY, INC: Phillips et al. Seek to Certify Class NEBRASKA: Court Refuses to Strike Expert Declarations in Sabata NETAPP INC: Faces Securities Class Suit in California NOVAVIVE USA: Fauley's Bid to Certify Class Denied as Premature OMEGA HEALTHCARE: Appeal in Securities Class Action Ongoing OMEGA HEALTHCARE: Appointment of Lead Pltf. in Bushansky Pending OMEGA HEALTHCARE: MedEquities Realty Trust Faces Scarantino Suit OMEGA HEALTHCARE: Russell Suit v. MedEquities Realty Trust Ongoing ORRSTOWN FINANCIAL: Bid for Protective Order Granted in Part ORTHO MATTRESS: Cal. App. Affirms Arbitration Denial in Banuelos OS RESTAURANT: Court Takes Class Cert. Bid under Submission PFIZER INC: Class Suits Related to Adalimumab Biosimilars Ongoing PFIZER INC: Continues to Defend Lipitor-Related Antitrust Suits PFIZER INC: Continues to Defend Saline Solution Class Suit PFIZER INC: Hormone Therapy Consumer Class Action vs. Wyeth Ongoing PHILADELPHIA CONSOLIDATED: Huck Suit Transferred to N.D. Georgia PILLARS PROTECTION: O'Byant Wins Collective Class Certification PLURALSIGHT INC: Faces Suit over 40% Drop in Share Price PORTFOLIO RECOVERY: Class Certification Sought in Johnson Suit PREMIER NUTRITION: Certification of 9 Joint Juice Classes Sought PRESSED JUICERY: Brooks Files Class Suit in California Under ADA QUINCY BIOSCIENCE: Karathanos Suit Transferred to S.D. New York RAYMOND JAMES: Final Settlement Approval Hearing Set for Oct. 25 RECEIVABLES MANAGEMENT: Seeks Prelim. Nod of Coulter Class Deal RHODE ISLAND: Chapdelaine, et al Seek to Certify Class RITE AID: Faces Product Liability Lawsuit in Connecticut ROCHELLE PROPERTY: Has Made Unsolicited Calls, Beaudet Claims ROUNDY'S ILLINOIS: Class Certification Sought in Haugen Suit RUTHERFORD COUNTY, TN: KW Seeks to Certify 3 Classes of Arrestees S-L DISTRIBUTION: Macedonia Moves to Certify Distributors Class SAEXPLORATION HOLDINGS: Bodin Sues over 34% Drop in Share Price SAEXPLORATION HOLDINGS: Faces Bodin Class Suit in Texas SALESFORCE.COM INC: Curtis Challenges Tableau Software Merger Deal SALESFORCE.COM INC: Scheufele Suit v. Tableau Software Ongoing SARATOGA ESCAPE: Murphy Alleges Violation under ADA SIFCO INDUSTRIES: Still Defends Wage-and-Hour Suit in California SINCLAIR BROADCAST: Bid to Nix Maryland Securities Suit Pending SINCLAIR BROADCAST: Continues to Defend 22 Price-Fixing Class Suits SOUTHERN COMPANY: Court Certifies Class in Securities Suit SPEEDWAY MOTORSPORTS: Thompson Balks at Sonic Financial Deal SPIN MASTER: Conner Asserts Breach of ADA SPRINKLES CUPCAKES: Brooks Files ADA Class Suit in California STERLING BUSINESS FORMS: Garcia Sues over Civil Rights Violations TARONIS TECHNOLOGIES: Continues to Defend Shareholders Class Suit TAYLOR FARMS: Court Denies Prelim Approval of Workers' Settlement THESY LLC: Tyksinski Sues over Personal Data Theft UBIQUITI INC: Consolidated Class Suit in New York Ongoing ULTIMATE NUTRITION: Kingsbury Seeks to Recover WARN Act Damages UNITED PARCEL SERVICE: Ramirez Seeks Minimum Wage, OT Pay VERU INC: Court Dismisses Amended Complaint in Aspen Merger Suit VISION PRECISION HOLDINGS: Martinez Suit Transferred to E.D. Cal. WELLS FARGO: Hernandez et al. Seek Certification of Classes WESTERN DIGITAL: Final Settlement Approval Hearing This Month WHITE COUNTY, TN: Bilbrey et al. Sue Sheriff Dept., Seek OT Pay ZEBRA TECHNOLOGIES: Warren Suit Moved to E.D. New York ********* 45 MERCER: Fails to Pay Proper Wages, Ballinas et al. Claim ----------------------------------------------------------- MIGUEL BALLINAS, and MIGUEL TEJEDA individually and on behalf of all others similarly situated, Plaintiff v. 45 MERCER RESTAURANT, LLC, d/b/a GALLI; HOST RG 45, LLC; LOCAL WEST, LLC d/b/a LOCAL WEST; HOST RG 54, LLC, d/b/a BILL'S; HOST RG 40, LLC d/b/a PRINTERS ALLEY; CAMP 1382, LLC d/b/a CAMPAGNOLA; RED ONE PLAZA, LLC, d/b/a LUCY'S CANTINA; ROYAL, LDV RG LUCY, LLC; IMIAN 550, LLC, d/b/a PUBLICANS; CURT HUEGEL; ASH HEDLI; JOHN W. HEIL III; SEI HOON CHU; and RICHARD WEISFISCH, Defendants, Case No. 1:19-cv-07766 (S.D.N.Y., Aug. 19, 2019) seeks to recover from the Defendants unpaid wages and overtime compensation, interest, liquidated damages, attorneys' fees, and costs under the Fair Labor Standards Act. The Plaintiffs were employed by the Defendants as non-exempt employees. 45 Mercer Restaurant, LLC, d/b/a Galli owns and operates as a restaurant. [BN] The Plaintiff is represented by: C.K. Lee, Esq. Taimur Alamgir, Esq. LEE LITIGATION GROUP, PLLC 148 West 24th Street, 8th Floor New York, NY 10011 Telephone: (212) 465-1188 Facsimile: (212) 465-1181 ACACIA COMMS: MOU Reached over Dismissal of Cisco Merger Suits -------------------------------------------------------------- Acacia Communications, Inc. said in its Form 8-K filing with the U.S. Securities and Exchange Commission filed on August 27, 2019, 2019, that the plaintiffs in the O'Brien Action, the Rosenblatt Action and the Mac Action have entered into a memorandum of understanding in which these plaintiffs agreed to dismiss with prejudice their individual claims and to dismiss without prejudice the class claims asserted, in relation to the company's merger agreement with Cisco Systems. Inc. On July 8, 2019, the Company entered into an Agreement and Plan of Merger (the "Merger Agreement") with Cisco Systems, Inc., a California corporation (the "Parent"), and Amarone Acquisition Corp., a Delaware corporation and a wholly owned subsidiary of the Parent (the "Merger Sub"). On July 8, 2019, Acacia Communications, Inc., a Delaware corporation (the "Company"), entered into an Agreement and Plan of Merger (the "Merger Agreement") with Cisco Systems, Inc., a California corporation (the "Parent"), and Amarone Acquisition Corp., a Delaware corporation and a wholly owned subsidiary of the Parent (the "Merger Sub"), providing for the acquisition of the Company by the Parent through the merger of the Merger Sub with and into the Company (the "Merger"), with the Company surviving the Merger as a wholly owned subsidiary of the Parent. On August 5, 2019, a lawsuit, captioned Jiang v. Acacia Communications, Inc., et al., Civil Action No. 1:19-cv-07267, was filed against the Company and each of the Company's directors in the United States District Court for the Southern District of New York alleging violations of Sections 14(a) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act") and Rule 14a-9 promulgated thereunder against the defendants for allegedly disseminating a materially incomplete and misleading preliminary proxy statement in connection with the proposed Merger. On August 5, 2019, a putative class action lawsuit, captioned O'Brien v. Acacia Communications, Inc., et al., Civil Action No. 1:19-cv-01463 (the "O'Brien Action"), was filed against the Company and each of the Company's directors in the United States District Court for the District of Delaware alleging that the Company's directors breached their fiduciary duties by, among other things, agreeing to the proposed Merger without taking steps to obtain adequate, fair and maximum consideration under the circumstances and engineering the proposed Merger to improperly benefit themselves, Company management and/or the Parent without regard for the Company's public stockholders, and that the Company and its directors violated Sections 14(a) and 20(a) of the Exchange Act by disseminating a materially incomplete and misleading preliminary proxy statement in connection with the proposed Merger. On August 6, 2019, a putative class action lawsuit, captioned Rosenblatt v. Acacia Communications, Inc., et al., Civil Action No. 1:19-cv-01470 (the "Rosenblatt Action"), was filed against the Company and each of the Company's directors in the United States District Court for the District of Delaware alleging violations of Sections 14(a) and 20(a) of the Exchange Act and Rule 14a-9 promulgated thereunder against the defendants for allegedly disseminating a false and misleading preliminary proxy statement in connection with the proposed Merger. On August 7, 2019, a lawsuit, captioned Mac v. Acacia Communications, Inc., et al., Civil Action No. 1:19-cv-11706 (the "Mac Action"), was filed against the Company and each of the Company's directors in the United States District Court for the District of Massachusetts alleging violations of Sections 14(a) and 20(a) of the Exchange Act and Rule 14a-9 promulgated thereunder against the defendants for allegedly disseminating a materially deficient and misleading preliminary proxy statement in connection with the proposed Merger. The plaintiffs in these lawsuits seek various forms of injunctive and declaratory relief, as well as awards of damages, costs, expert fees and attorneys' fees. On August 27, 2019, the Company and the plaintiffs in the O'Brien Action, the Rosenblatt Action and the Mac Action entered into a memorandum of understanding in which these plaintiffs agreed to dismiss with prejudice their individual claims and to dismiss without prejudice the class claims asserted in those actions, in return for the Company's agreement to make the supplemental disclosures set forth herein. The Company believes that no further supplemental disclosure is required under applicable laws and that the definitive proxy statement filed by the Company with the Securities and Exchange Commission (the "SEC") on August 7, 2019 (the "Proxy Statement") disclosed all material information required to be disclosed therein. However, to avoid the risk of the O'Brien Action, the Rosenblatt Action and the Mac Action delaying or adversely affecting the proposed Merger and to minimize the expense of defending such actions, it has agreed, pursuant to the terms of the memorandum of understanding, to make certain supplemental disclosures related to the proposed Merger, all of which are set forth below and which should be read in conjunction with the Proxy Statement. The memorandum of understanding will not affect the amount of the merger consideration that the Company’s stockholders are entitled to receive in the proposed Merger or the timing of the special meeting of the Company’s stockholders, scheduled for September 6, 2019, to, among other things, consider and vote upon a proposal to adopt the Merger Agreement. A copy of the supplemental disclosure is available at https://bit.ly/2HBPk7x. Acacia Communications, Inc., incorporated on June 2, 2009, provides high-speed coherent interconnect products. The company is based in Maynard, Massachusetts. ACTION TOWING: Adikhanov Sues over Deceptive Billing Practices -------------------------------------------------------------- A class action complaint has been filed against Action Emergency Management Services, Inc. for unjust enrichment. The case is captioned ABDUMALIK ADIKHANOV, on behalf of himself and all others similarly situated, Plaintiff, vs. ACTION EMERGENCY MANAGEMENT SERVICES, INC., d/b/a ACTION TOWING, Defendant, Case No. 19-2335B (Mass. Cmmw., Suffolk Cty., July 23, 2019). Plaintiff alleges that the Defendant is unlawful, unfair and/or deceptive billing practices as it relates to its involuntary towing services. Specifically, Plaintiff contends that Action Towing has a practice of demanding and/or collecting impermissible amounts of money in connection with its involuntary towing practices in violation of Massachusetts law. Action Emergency Management Services, Inc. is a domestic corporation, maintaining a principal office and registered agent in Suffolk County, Massachusetts. The company provides towing, transportation, road service and repairs to individuals and businesses in Massachusetts. [BN] The Plaintiff is represented by: Brian P. McNiff, Esq. John R. Yasi, Esq. Michael C. Forrest, Esq. FORREST, LAMOTHE, MAZOW, MCCULLOUGH YASI & YASI, P.C. 2 Salem Green, Suite 2 Salem, MA 01970 Telephone: (617)231-7829 E-mail: bmcniff@forrestlamothe.com ivasi@forrestlamothe.com mforrest@forrestlamothe.com ADVENTURE BOUND: Murphy Asserts Breach of Disabilities Act ---------------------------------------------------------- Adventure Bound Camps, Inc. is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as James Murphy, on behalf of himself and all other persons similarly situated, Plaintiff v. Adventure Bound Camps, Inc., Defendant, Case No. 1:19-cv-08060 (S.D. N.Y., Aug. 28, 2019). ABC provides up to week-long traveling day & overnight summer camps for campers 10-15 yrs old.[BN] The Plaintiff is represented by: Zare Khorozian, Esq. Zare Khorozian Law, LLC 1047 Anderson Avenue Fort Lee, NJ 07024 Tel: (201) 957-7269 Email: zare@zkhorozianlaw.com ALPHA CONSTRUCTION: Bid to Certify Class in Torres-Tinajero Denied ------------------------------------------------------------------ In the case, PEDRO TORRES-TINAJERO, on behalf of himself and all other similarly situated persons, Plaintiffs, v. ALPHA CONSTRUCTION OF THE TRIAD, INC. and JEFFREY W. ALLEY, Defendants, Case No. 1:18CV160 (M.D. N.C.), Judge William L. Osteen, Jr. of the U.S. District Court for the Middle District of North Carolina denied without prejudice the Torres-Tinajero's Motion for Class Certification and for Approval of Class Notice and Method of Distribution. The Plaintiff brought the case as both a collective action pursuant to the Fair Labor Standards Act of 1938 ("FLSA"), and a class action under the North Carolina Wage and Hour Act ("NCWHA"). The Court has federal question jurisdiction over the Plaintiff's FLSA claim, and can exercise supplemental jurisdiction over his NCWHA claims. ThePlaintiff's FLSA claim is for unpaid overtime wages. He Plaintiff brings two NCWHA claims, one of which he alleges in the alternative to the FLSA claim. His first NCWHA claim is based on the Defendants' failure to pay overtime wages when due on the scheduled payday under N.C. Gen. Stat. Section 95-25.6. The Plaintiff's second NCWHA claim, which he alleges in the alternative to the FLSA claim, is for unpaid overtime wages under N.C. Gen. Stat. Section 95-25.4. The Plaintiff moves to certify a class as to the payday claim under N.C. Gen. Stat. Section 95-25.6 or, in the alternative, a class as to the NCWHA overtime claim under N.C. Gen. Stat. Section 95-25.4. He moved to certify a class when he did, on Jan. 23, 2019, to comply with Local Rule 23.1(b)'s deadline, which Magistrate Judge Peake extended until Feb. 1, 2019. Under Local Rule 23.1(b), a plaintiff has 90 days from filing a class action complaint to move to certify a class. That 90-day window does not apply to a motion for conditional certification of collective action under the FLSA. And the Plaintiff does not move contemporaneously for conditional certification of collective action under the FLSA because he has not obtained any of the discovery necessary to conclusively establish that the Plaintiff's employment was subject to 'enterprise coverage' under the FLSA. Judge Osteen concludes that granting the Plaintiff's motion at this time would be imprudent. The Judge extends the Plaintiff's time to file a motion for class certification under Federal Rule of Civil Procedure 23 pending further discovery. If necessary, the Magistrate Judge may extend the discovery deadline, which is currently Sept. 30, 2019. The Plaintiff may renew his motion, or file a new one, when he seeks collective action treatment of his FLSA claim. The Judge therefore denied the Plaintiff's Motion for Class Certification and for Approval of Class Notice and Method of Distribution, without prejudice as described. A full-text copy of the Court's July 24, 2019 Memorandum Opinion and Order is available at https://is.gd/J2mepX from Leagle.com. PEDRO TORRES-TINAJERO, ON BEHALF OF HIMSELF AND ALL OTHER SIMILARLY SITUATED PERSONS, Plaintiff, represented by ROBERT JAMES WILLIS -- rwillis@rjwillis-law.com -- ALPHA CONSTRUCTION OF THE TRIAD INC., Defendant, pro se. JEFFREY W. ALLEY, Defendant, pro se. ALTA MESA: Continues to Defend Securities Class Suit in Texas ------------------------------------------------------------- Alta Mesa Resources, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on August 27, 2019, for the fiscal year ended December 31, 2018, that the company continues to defend putative securities class action suits in Texas. On January 30, 2019, the Company, James T. Hackett, its interim Chief Executive Officer and Chairman of the Board, certain of its former and current directors, Thomas J. Walker, its former Chief Financial Officer, and Riverstone Investment Group LLC were named as defendants in a putative securities class action filed in the United States District Court for the Southern District of New York ("SDNY Complaint"). The plaintiff, Plumbers and Pipefitters National Pension Fund, alleges that the defendants disseminated a false and misleading proxy statement in connection with the Business Combination and, therefore, violated Section 14(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and Rule 14-9 promulgated thereunder. In addition, the plaintiff alleges that Riverstone and the individual defendants violated Section 20(a) of the Exchange Act. The plaintiff is seeking compensatory and/or rescissory damages against the defendants. The District Court transferred this action to the U.S. District Court for the Southern District of Texas. On March 14 and 19, 2019, two additional putative securities class action complaints were filed in the U.S. District Court for the Southern District of Texas ("SDTX Complaints") against the same defendants named in the SDNY Complaint, and Harlan H. Chappelle and Michael A. McCabe, the company's former President and Chief Executive Officer and Chief Financial Officer, respectively. These complaints include the same claims asserted in the initial complaint, but also add claims under Section 10(b) of the Exchange Act and Rule 10b-5 promulgated thereunder against the company and certain of its current and former officers and directors on behalf of all persons or entities who purchased or otherwise acquired Silver Run or AMR securities between March 24, 2017, and February 25, 2019. The new claims are based upon alleged misstatements contained in the company's proxy statement and made after the Business Combination. The plaintiffs seek compensatory and/or rescissory damages against the defendants. Alta Mesa said, "The outcome of the above securities class action complaints is uncertain, and while we believe that we have valid defenses to the plaintiff's claims and intend to defend the lawsuits vigorously, no assurance can be given as to the outcome of the lawsuits." Alta Mesa Resources, Inc., together with its consolidated subsidiaries, is an independent exploration and production company focused on the acquisition, development, exploration and exploitation of unconventional onshore oil and natural gas reserves in the eastern portion of the Anadarko Basin in Oklahoma. The company operatez in two reportable business segments - Upstream and Midstream. The company is based in Houston, Texas. AMERICAN MIDSTREAM: Sold to ArcLight Too Cheaply, Thomas Asserts ---------------------------------------------------------------- CRAIG W. THOMAS, individually and on behalf of all others similarly situated, Plaintiff v. STEPHEN W. BERGSTROM; JOHN F. ERHARD; PETER A. FASULLO; DONALD R. KENDALL, JR.; LYNN L. BOURDON, III; DANIEL R. REVERS; JOSEPH W. SUTTON; LUCIUS H. TAYLOR; GERALD A. TYWONIUK; and AMERICAN MIDSTREAM GP, LLC n/k/a THIRD COAST MIDSTREAM HOLDINGS, LLC, Defendants, Case No. 20190641 (Del. Ch., Aug. 14, 2019) seeks relief for the bad faith conduct of American Midstream GP, LLC, its Board of Directors, and its purportedly independent Conflicts Committee in connection with ArcLight Energy Partners Fund V, L.P.'s acquisition of all issued and outstanding AMID common units through its subsidiary. According to the complaint, the Defendants "opportunistically and in bad faith" designed and timed the ArcLight Acquisition and otherwise manipulated the Company's unit price to deprive common unitholders of the full value of their investments, violating the terms of the Composite Fifth Amended and Restated Agreement of Limited Partnership ("LPA") and the implied covenant of good faith and fair dealing. The Conflicts Committee also acted in bad faith, knowing of, but disregarding, this manipulation along with other material information in approving the Acquisition. On March 18, 2019, two weeks before filing its Form 10-K for the year 2018 ("2018 Form 10-K"), the Company announced that the Conflicts Committee had approved the Acquisition, by which Magnolia Infrastructure Holdings, LLC ("Magnolia"), a subsidiary of ArcLight and a 23% indirect owner of American Midstream, would acquire all issued and outstanding AMID common units not already owned by Magnolia or its affiliates at the unfairly low price of $5.25 per common unit. The Acquisition materially undervalued AMID in order to benefit ArcLight. American Midstream opportunistically timed the Acquisition to take advantage of perceived and temporary operational and financial issues, including several manufactured by it or its affiliate ArcLight, in disregard for the long-term value and prospects of AMID's business. The Company's unaffiliated unitholders, however, will actually net less than $5.25 per unit as a result of ArcLight's maneuvering. Just prior to the closing of the Acquisition, ArcLight caused the conversion of the Company's preferred units, which ArcLight exclusively held, into common units. Conversion was not required to effectuate the Acquisition, and the Plaintiff can discern no legitimate Acquisition-related purpose for the conversion. But, as with other material aspects of the Acquisition, the conversion handicapped common unitholders, in this case by shifting a portion of ArcLight's tax liability onto the Company's unaffiliated common unitholders while solely providing ArcLight with the benefits arising from the corresponding taxable loss. American Midstream GP LLC owns and operates a diversified portfolio of natural gas midstream energy assets. The Company provides midstream services in the Gulf Coast and Southeast regions of the United States. [BN] The Plaintiff is represented by: Samuel L. Closic, Esq. Kevin H. Davenport, Esq. Mary S. Thomas, Esq. PRICKETT, JONES & ELLIOTT, P.A. 1310 King Street Wilmington, DE 19801 Telephone: (302) 888-6500 ANGLIN'S BEACH: Court Denies Bid for Class Certification -------------------------------------------------------- In the class action lawsuit styled as SHUBERT VERTILUS, the Plaintiff, vs. ANGLIN'S BEACH CAFE, LLC, and SPIRO MARCHELOS, the Defendants, Case No. 0:19-cv-61462-RKA (S.D. Fla.), the Hon. Judge Roy K. Altman entered an order on Aug. 28, 2019: 1. denying without prejudice Plaintiff's motion for default judgment; and 2. denying Plaintiff's motion for class certification. The Plaintiff may file an amended motion for default judgment. That amended motion must describe, in detail, any proposed attorney's fees and costs, including counsel's hours and rates, the Court says. The Plaintiff has neither identified similarly situated class members or pointed to class members who wish to opt into this lawsuit. Instead, the Plaintiff, in rather conclusory fashion, says only that: (1) "Defendants have failed to pay myself and similarly situated employees minimum wage for all hours worked and overtime for all hours worked in excess of 40 in a given work week"; (2) "Plaintiff and all other similarly situated individuals routinely are not paid minimum wage for all hours worked"; and (3) "there are numerous other employees employed as hourly kitchen staff who were not paid full and proper overtime and minimum wage for all hours worked". The Plaintiff brought this action to recover unpaid minimum and overtime wages -- along with liquidated damages -- under the Fair Labor Standards Act.[CC] ANGLIN'S BEACH: Vertilus Moves for Class Certification and Notice ----------------------------------------------------------------- The Plaintiff in the lawsuit styled SHUBERT VERTILUS, and all others similarly situated v. ANGLIN'S BEACH CAFE, LLC, an active Florida limited liability company; and SPIRO MARCHELOS, individually, Case No. 0:19-cv-61462-RKA (S.D. Fla.), filed with the Court a motion for certification as a collective action and issuance of court supervised notice. On June 12, 2019, the Plaintiff filed his complaint alleging violations of the Fair Labor Standards Act. He alleges that he was not paid overtime and minimum wage pursuant to the FLSA.[CC] The Plaintiff is represented by: Michael L. Elkins, Esq. MLE LAW 633 S. Andrews Ave., Suite 500 Fort Lauderdale, FL 33301 Telephone: (954) 401-2608 E-mail: melkins@mlelawfirm.com - and - Joshua M. Entin, Esq. ENTIN LAW GROUP, P.A. 633 S. Andrews Ave., Suite 500 Fort Lauderdale, FL 33301 Telephone: (954) 761-7201 E-mail: josh@entinlaw.com AO SMITH: Bid to Appoint Lead Plaintiff Underway ------------------------------------------------ A. O. Smith Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 8, 2019, for the quarterly period ended June 30, 2019, that a putative class member has filed a motion seeking to be named lead plaintiff in the class action suit, entitled, Henry Bleier v. A. O. Smith Corporation, et al. On May 28, 2019, a putative securities class action lawsuit was filed in the U.S. District Court for the Eastern District of Wisconsin against the Company and certain of its current or former officers. This action, captioned Henry Bleier v. A. O. Smith Corporation, et al., asserts securities fraud claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, and seeks damages and other relief based upon the allegations in the complaint. Although the named plaintiff voluntarily dismissed his complaint on August 2, 2019, another putative class member filed a motion seeking to be named lead plaintiff in the case, and the Court has until August 26, 2019 to rule on that motion. A. O. Smith Corporation, incorporated on July 9, 1986, operates through two segments: North America and Rest of World. The Company's Rest of World segment primarily consists of China, Europe and India. Both segments manufacture and market comprehensive lines of residential and commercial gas, gas tankless and electric water heaters, as well as water treatment products. Both segments primarily manufacture and market in their respective regions of the world. The company is based in Milwaukee, Wisconsin. APPLE INC: Court OKs Admin Bid to Relate Cameron, Sermons Cases ---------------------------------------------------------------- On August 22, 2019, the Ninth Circuit Court of Appeals issued a mandate in Robert Pepper v. Apple, Inc., Case No. 11-cv-06714. The United States District Court for the Northern District of California issued an order granting the two Administrative Motions by defendant Apple Inc.'s to Consider Whether Cases Should Be Related Pursuant to Civil L.R. 3-12, namely Cameron v. Apple, Inc., Case No. 19-cv-03074-WHA (Cameron) and Sermons v. Apple, Inc., Case No. 19-cv-03796-WHA (Sermons). Here, the defendant in all three cases is the same. The plaintiffs differ and their relationship to the defendant also differs. However, each case stems from the use of the exact same technology and the economics regarding that same technology. The time periods overlap, albeit one case is significantly longer than the other two. Procedurally, even though one case has a long history, discovery has not begun in any case. Given the Court's understanding of the cases, it also appears that discovery will overlap. Having reviewed the parties' filings, the Court finds that significant economies exist in terms of case management and resolution of motions inextricably tied to an understanding of the technology, platform markets, and the transactions at issue. Opposing plaintiffs' arguments against relating Cameron and Sermons to the Pepper action do not persuade. The argument that plaintiffs in Cameron and Sermons are app developers and therefore the cases do not present substantially similar parties fails. Although plaintiffs' relationships to defendant differ, the alleged breakdown in those relationships, which form the bases of plaintiffs' complaints, center around the same technology and economic structures. Cameron plaintiffs' argument that the property at issue is not substantially the same similarly fails. Plaintiffs misconstrue the Supreme Court's statement regarding conflicting claims to the common fund. The Court's statement does not, as plaintiffs suggest, mean that the property at issue is not substantially similar. As the Court explained, if the consumer class prevails, they will be entitled to the full amount of the unlawful overcharge that they paid to Apple as the overcharge has not been passed on by anyone to anyone. Plaintiffs' argument that there is no risk of conflicting results if the cases are not related is unpersuasive. Plaintiffs rely on surface differences in the damages theories presented, however as the Court previously noted, courts routinely relate cases in which the theories of damages differ. Moreover, the fact that both sets of plaintiffs seek injunctive relief presents a sufficient risk of inconsistent results to warrant relation. Finally, relating these actions would, contrary to plaintiffs' argument, avoid unduly burdensome duplication of effort. All three cases are currently in a similar procedural posture and have yet to begin substantial discovery and so efficiency gains will be achieved in discovery. Moreover, given overlap, relating both actions to Pepper would prevent unnecessary duplication of judicial effort and resources. Accordingly, the Court grants Apple's motions to relate the Cameron and Sermons actions. A full-text copy of the District Court's dated August 22, 2019 Order is available at https://tinyurl.com/y24lfnbp from Leagle.com. Robert Pepper, Stephen H. Schwartz & Edward W. Hayter, Plaintiffs, represented by Betsy Carol Manifold -- manifold@whafh.com -- Wolf Haldenstein Adler Freeman & Herz, LLP, Mark Carl Rifkin- rifkin@whafh.com -- Wolf Haldenstein Adler Freeman & Herz LLP, Rachele R. Byrd -- Byrd@whafh.com -- Wolf Haldenstein Adler Freeman & Herz LLP, Matthew Moylan Guiney -- guiney@whafh.com -- Wolf Haldenstein Adler Freeman Herz LLP, pro hac vice & Michael Milton Liskow -- liskow@gmail.com -- The Sultzer Law Group, P.C. Harry Bass, Plaintiff, represented by Betsy Carol Manifold, Wolf Haldenstein Adler Freeman & Herz, LLP, Mark Carl Rifkin, Wolf Haldenstein Adler Freeman & Herz LLP, Rachele R. Byrd, Wolf Haldenstein Adler Freeman & Herz LLP & Michael Milton Liskow, The Sultzer Law Group, P.C. Eric Terrell, Plaintiff, represented by Mark Carl Rifkin, Wolf Haldenstein Adler Freeman & Herz LLP, Matthew Moylan Guiney, Wolf Haldenstein Adler Freeman Herz LLP, pro hac vice &Rachele R. Byrd, Wolf Haldenstein Adler Freeman & Herz LLP. James Blackwell & Crystal Boykin, Plaintiffs, represented by Mark Carl Rifkin, Wolf Haldenstein Adler Freeman & Herz LLP & Rachele R. Byrd, Wolf Haldenstein Adler Freeman & Herz LLP. Apple Inc., Defendant, represented by Christopher S. Yates -- chris.yates@lw.com -- Latham & Watkins LLP, Daniel Murray Wall -- dan.wall@lw.com -- Latham & Watkins LLP, Sadik Harry Huseny -- sadik.huseny@lw.com -- Latham & Watkins LLP, Cynthia Richman -- crichman@gibsondunn.com -- Gibson Dunn and Crutcher LLP, pro hac vice, Daniel Glen Swanson -- dswanson@gibsondunn.com -- Gibson, Dunn & Crutcher LLP, Melissa Phan -mphan@gibsondunn.com -- Gibson Dunn, Richard Joseph Doren, Gibson Dunn Crutcher, 333 S Grand Ave, Los Angeles, CA 90071 & Theodore Joseph Boutrous, Jr. -- tboutrous@gibsondunn.com -- Gibson, Dunn & Crutcher LLP. Donald R. Cameron & Pure Sweat Basketball, Inc., Miscellaneouss, represented by Steve W. Berman -- steve@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP. ATLANTIC COLLECTION AGENCY: Gonzalez Sues over FDCPA Violations --------------------------------------------------------------- A class action complaint has been filed against Atlantic Collection Agency Inc. et al. for alleged violations of the Fair Debt Collection Practices Act (FDCPA). The case is captioned Pedro Gonzalez, III, on behalf of himself and all others similarly situated, Plaintiff, v. Atlantic Collection Agency Inc. et al, Defendants, Case No. 3:19-cv-01130-JCH (D. Conn., July 23, 2019). This consumer credit-related lawsuit is assigned to Hon. Judge Janet C. Hall. Atlantic Collection Agency Inc. is a debt collection agency in East Lyme, Connecticut. The company specializes in medical debt collection. [BN] The Plaintiff is represented by: Benjamin Wolf, Esq. JONES, WOLF & KAPASI, LLC One Grand Central Place 60 East 42nd Street, 46th Floor New York, NY 10165 Telephone: (646) 459-7971 Facsimile: (646) 459-7971 E-mail: bwolf@legaljones.com - and – Joseph K. Jones, Esq. JONES, WOLF & KAPASI, LLC One Grand Central Place 60 East 42nd Street, 46th Floor New York, NY 10165 Telephone: (646) 459-7971 Facsimile: (646) 459-7973 E-mail: jkj@legaljones.com AXOS FINANCIAL: Appeal in Calif. Securities Class Suit Underway --------------------------------------------------------------- Axos Financial, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on August 28, 2019, for the fiscal year ended June 30, 2019, that the appeal in the consolidated class action suit entitled, In re BofI Holding, Inc. Securities Litigation, Case #: 3:15-cv-02324-GPC-KSC, remains pending. On October 15, 2015, the Company, its Chief Executive Officer and its Chief Financial Officer were named defendants in a putative class action lawsuit styled Golden v. BofI Holding, Inc., et al, and brought in United States District Court for the Southern District of California (the "Golden Case"). On November 3, 2015, the Company, its Chief Executive Officer and its Chief Financial Officer were named defendants in a second putative class action lawsuit styled Hazan v. BofI Holding, Inc., et. al, and also brought in the United States District Court for the Southern District of California (the "Hazan Case"). On February 1, 2016, the Golden Case and the Hazan Case were consolidated as In re BofI Holding, Inc. Securities Litigation, Case #: 3:15-cv-02324-GPC-KSC (the "Class Action"), and the Houston Municipal Employees Pension System was appointed lead plaintiff. The plaintiffs allege that the Company and other named defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, and Rule 10b-5 promulgated thereunder, by failing to disclose wrongful conduct that was alleged in a complaint filed in connection with a wrongful termination of employment lawsuit filed on October 13, 2015 (the "Employment Matter") and that as a result the Company's statements regarding its internal controls, as well as portions of its financial statements, were false and misleading. On March 21, 2018, the Court entered a final order dismissing the Class Action with prejudice. Subsequently, the plaintiff filed a notice of appeal and opening brief and the Company has filed its answering brief. Axos Financial, Inc. operates as the holding company for BofI Federal Bank that provides consumer and business banking products in the United States. The company offers deposits products, including consumer and business checking, demand, savings, and time deposit accounts. Axos Financial, Inc. was incorporated in 1999 and is based in San Diego, California. AXOS FINANCIAL: Appeal in Mandalevy Class Suit Underway ------------------------------------------------------- Axos Financial, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on August 28, 2019, for the fiscal year ended June 30, 2019, that the appeal from a court decision in the case, Mandalevy v. BofI Holding, Inc., et al., remains pending. On April 3, 2017, the Company, its Chief Executive Officer and its Chief Financial Officer were named defendants in a putative class action lawsuit styled Mandalevy v. BofI Holding, Inc., et al, and brought in United States District Court for the Southern District of California (the "Mandalevy Case"). The Mandalevy Case seeks monetary damages and other relief on behalf of a putative class that has not been certified by the Court. The complaint in the Mandalevy Case (the "Mandalevy Complaint") alleges a class period that differs from that alleged in the First Class Action, and that the Company and other named defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, and Rule 10b-5 promulgated thereunder, by failing to disclose wrongful conduct that was alleged in a March 2017 media article. On December 7, 2018, the Court entered a final order granting the defendants' motion and dismissing the Mandalevy Case with prejudice. Subsequently, the plaintiff filed a notice of appeal and opening brief and the Company has filed its answering brief. Axos Financial, Inc. operates as the holding company for BofI Federal Bank that provides consumer and business banking products in the United States. The company offers deposits products, including consumer and business checking, demand, savings, and time deposit accounts. Axos Financial, Inc. was incorporated in 1999 and is based in San Diego, California. BANK OF AMERICA: Key et al. Sue over Overdraft Fees --------------------------------------------------- A class action complaint has been filed against Bank of America, N.A. and Bank of America Corporation for unjust enrichment and breach of contract in connection with their practices of systematically assessing improper overdraft fees, overdraft protection transfer fees, and withdrawal limit fees to the personal checking and savings accounts of its customers. The case is captioned IMANI NIA KEY; FERNANDO DE CESPEDES; and HOLLY DILLON, individually and on behalf of all others similarly situated, Plaintiffs, v. BANK OF AMERICA, N.A.; and BANK OF AMERICA CORPORATION, Defendants, Case No. 1:19-CV-23020 (S.D. Fla., July, 19 2019). Specifically, on April 6, 2016, April 25, 2016, June 3, 2016, August 3, 2016, and August 12, 2016, Bank of America breached the Deposit Agreement and Schedule of Fees by charging Plaintiff De Cespedes $12.00 overdraft protection transfer fees as a result of nonrecurring debit card transactions for which insufficient available funds existed in his primary deposit account balance to cover, even though there were insufficient available funds available in Plaintiff De Cespedes's linked savings account to cover both the amounts of the insufficient funds in his primary deposit account balance and the applicable $12.00 overdraft protection transfer fees. Additionally, on May 31, 2016, Bank of America breached the Deposit Agreement and Schedule of Fees by charging Plaintiff Key a $12.00 overdraft protection transfer fee as a result of an ATM transaction for which insufficient available funds existed in her primary deposit account balance to cover, even though there were also insufficient available funds available in Plaintiff Key's linked savings account to cover both the amount of the insufficient funds in her primary deposit account balance and the applicable $12.00 overdraft protection transfer fee. Bank of America is incorporated in Delaware and maintains its headquarters and principal place of business in Charlotte, North Carolina. Bank of America provides, inter alia, retail banking products and services to consumers, including personal checking accounts and debit cards. Bank of America operates banking centers throughout Florida and the United States. [BN] The Plaintiffs are represented by: Frank S. Hedin, Esq. HEDIN HALL LLP 1395 Brickell Ave, Suite 900 Miami, FL 33131 Telephone: (305) 357-2107 Facsimile: (305) 200-8801 E-mail: fhedin@hedinhall.com - and - Robert Ahdoot, Esq. AHDOOT & WOLFSON, PC 10728 Lindbrook Drive Los Angeles, CA 90024 Telephone: (310) 474-9111 Facsimile: (310) 474-8585 E-mail: rahdoot@ahdootwolfson.com BILOXI HMA: Henley Files Class Suit in Mississippi -------------------------------------------------- A class action lawsuit has been filed against Biloxi H.M.A., LLC. The case is styled as Kimberly Henley, on behalf of herself and all others similarly situated, Plaintiff v. Biloxi H.M.A., LLC doing business as: Merit Health Biloxi a Mississippi Limited Liability Company, Community Health Systems, Inc., a Delaware Corporation, John and Jane Does 1 through 25, inclusive, Defendants, Case No. 1:19-cv-00544-HSO-JCG (S.D. Miss., Aug. 27, 2019). The case type is stated as Diversity-Other Contract. Biloxi H.M.A. LLC is in the General Medical and Surgical Hospitals business.[BN] The Plaintiff is represented by: Christopher C Van Cleave, Esq. Van Cleave Law, P.A. 146 Porter Avenue Biloxi, MS 39530 Tel: (228) 432-7826 Fax: (228) 456-0998 Email: christopher@vancleavelaw.com BIMBO BAKERIES: Burke et al. Seek OT Premium Pay ------------------------------------------------ A class action complaint has been filed against Bimbo Bakeries USA, Inc. and Bimbo Foods Bakeries Distribution, LLC for alleged violations of the Fair Labor Standards Act (FLSA) and the New York Labor Law (NYLL). The case is captioned ERIC BURKE, CRAIG BARKER, RICK CALTON, ARTHUR SALISBURY, WILLIAM CORY TANNER, BRIAN TANNER, and TONY WEAVER, on behalf of themselves and all others similarly situated, Plaintiffs, v. BIMBO BAKERIES USA, INC. and, BIMBO BAKERIES DISTRIBUTION, LLC, Defendants, Case No. 5:19-CV-0902-MAD-ATB (N.D.N.Y., July 23, 2019). Plaintiffs allege that the Defendants misclassified them as independent contractors instead of employees under the NYLL from April 10, 2014 to the present. Plaintiffs assert claims as a class action pursuant to Federal Rule of Civil Procedure 23, alleging that Defendants violated the New York Labor laws by making unlawful deductions from their wages, failing to comply with the recordkeeping and notice requirements of the NYLL and failing to pay an overtime premium when Plaintiffs worked more than forty hours per week. Headquartered in Horsham, Pennsylvania, Bimbo Bakeries and their affiliates are engaged in the manufacturing, delivery, and sale breads and baked goods to grocery stores and other outlets across the United States under the brand names Sara Lee, Nature's Harvest, and others. [BN] The Plaintiffs are represented by: Samuel A. Alba, Esq. FRIEDMAN & RANZENHOFER, P.C. 74 Main Street P.O. Box 31 Akron, NY 14001 Telephone: (716)-542-5444 E-mail: Sam@legalsurvival.com - and - Harold L. Lichten, Esq. Matthew W. Thomson, Esq. LICHTEN & LISS-RIORDAN, P.C. 729 Boylston St., Suite 2000 Boston, MA 02116 Telephone: (617) 994-5800 E-mail: hlichten@llrlaw.com mthomson@llrlaw.com BIMBO BAKERIES: Oddo Seeks to Certify FLSA Collective Action ------------------------------------------------------------ In the class action lawsuit styled as CHRISTOPHER ODDO, et al., on behalf of themselves and those similarly situated, the Plaintiffs, vs. BIMBO BAKERIES U.S.A. INC., the Defendant, Case No. 2:17-cv-04775-PD (E.D. Pa.), the Plaintiffs move the Court for an order: 1. conditionally certifying collective action pursuant to the Fair Labor Standards Act on behalf of: "all individuals who, during at least one workweek during the time period from September 11, 2014 through the present 1) worked for Defendant as a Route Sales Representative or Route Sales Professional and 2) drove a Bimbo vehicle with a Gross Vehicle Weight Rating of 10,000 pounds or less on his or her route"; and 2. appproving Court-authorized notice to the putative class.[CC] Attorneys for the Plaintiffs are: Matthew D. Miller, Esq. Joshua S. Boyette, Esq. Justin L. Swidler, Esq. Richard S. Swartz, Esq. SWARTZ SWIDLER, LLC 1101 Kings Highway North, Suite 402 Cherry Hill, NJ 08034 Telephone: (856) 685-7420 Facsimile: (856) 685-7417 BIOTIME INC: Case Management Hearing in Lampe Suit on Sept. 17 --------------------------------------------------------------- BioTime, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 8, 2019, for the quarterly period ended June 30, 2019, that a case management conference in Lampe v. Asterias Biotherapeutics, Inc. et al., has been set for September 17, 2019. On March 8, 2019, the company acquired the remaining ownership interests in Asterias Biotherapeutics, Inc. via merger. On February 19, 2019, a putative shareholder class action lawsuit was filed (captioned Lampe v. Asterias Biotherapeutics, Inc. et al., Case No. RG19007391) in the Superior Court of the State of California, County of Alameda challenging the Asterias Merger. On March 1, 2019, Asterias made certain amendments and supplements to its public disclosures regarding the Asterias Merger (the "Supplemental Disclosures"). On May 3, 2019, an amended class action complaint (the "Amended Complaint") was filed. The Amended Complaint names BioTime, Patrick Merger Sub, Inc., the Asterias board of directors, one member of BioTime's board of directors, and certain stockholders of both BioTime and Asterias. The action was brought by two purported stockholders of Asterias, on behalf of a putative class of Asterias stockholders, and asserts breach of fiduciary duty and aiding and abetting claims under Delaware law. The Amended Complaint alleges, among other things, that the process leading up to the Asterias Merger was conflicted and inadequate, and that the proxy statement filed by Asterias with the Securities and Exchange Commission omitted certain material information, which allegedly rendered the information disclosed materially misleading. The Amended Complaint seeks, among other things, that a class be certified, the recovery of monetary damages, and attorneys' fees and costs. On June 3, 2019, defendants filed demurrers to the Amended Complaint. Plaintiffs' counsel subsequently indicated that, after reviewing the demurrers and analyzing certain documents produced by defendants, Plaintiffs wished to voluntarily dismiss the action with prejudice as to themselves, and without prejudice as to the unnamed putative class members. Plaintiffs' counsel also indicated that, independent of their decision to voluntarily dismiss the action, Plaintiffs believe they have a claim for attorneys' fees and expenses in connection with the purported benefit conferred on Asterias stockholders by the Supplemental Disclosures (the "Fee Claim"). On July 26, 2019, the parties entered into a stipulation to stay the briefing schedule on the demurrers and to take the hearing on the demurrers off calendar so that the parties could discuss the Fee Claim (the "Stipulation"). On July 29, 2019, the Court entered the Stipulation as an order, took the demurrer hearing off calendar, and set a case management conference for September 17, 2019. Thereafter, the parties began negotiating the Fee Claim and, on August 5, 2019, agreed in principle to resolve the Fee Claim for $200,000. The parties intend to submit a stipulation to the Court seeking dismissal of the action with prejudice as to the named Plaintiffs and without prejudice as to the unnamed putative class members, and seeking approval of the negotiated Fee Claim. BioTime continues to believe that the claims and allegations in the action lack merit, but believes that it is in BioTime's shareholders' best interest for the action to be dismissed and to resolve the Fee Claim in a timely manner without additional costly litigation expenses. BioTime, Inc., a clinical-stage biotechnology company, focuses on developing and commercializing therapies for the treatment of degenerative diseases in the United States and internationally. BioTime, Inc. was founded in 1990 and is headquartered in Alameda, California. BOB MOORE: Court Stays Class Claims Pending Arbitration ------------------------------------------------------- The United States District Court for the Western District of Oklahoma issued an Order granting in part and denying in part Defendants' Motion to Stay and Compel Arbitration in the case captioned (1) LESLIE BROWN, individually; (2) LESLIE BROWN, parent and next friend of H.B., a minor child; and (3) LESLIE BROWN, on behalf of all other putative plaintiffs, similarly situated, Plaintiffs, v. (1) BOB MOORE AUTO GROUP, L.L.C., a domestic limited liability company; (2) BMAG LUXURY 1, L.L.C., a domestic limited liability company; (3) JOZEF DAREN DABROWSKI; (4) TONY G. GRISSOM, individually and acting in his official capacity as an agent of Bob Moore Auto Group, L.L.C. and BMAG Luxury 1, L.L.C.; (5) JOHN DOE TOWING SERVICES; (6) JOHN DOE TOW TRUCK DRIVER # 1; and (7) JOHN DOE TOW TRUCK DRIVER # 2, Defendants. Case No. CIV-19-409-R. (W.D. Okla.). This dispute began with a car sale. Plaintiff Leslie Brown alleges that she purchased a 2010 Audi Q5 SUV for her minor daughter, H.B., from a Bob Moore auto dealership. Plaintiffs filed this suit asserting claims for conversion, embezzlement, fraud, conspiracy to commit fraud, theft, breach of the peace, false imprisonment, intentional infliction of emotional distress, and violations of the Fair Debt Collection Practices Act and the Oklahoma Consumer Protection Act. The Defendants move to stay this action and compel all claims asserted by Plaintiffs1 against them to bilateral arbitration. Standard of Review The parties agree, and the contract evinces, that this dispute is governed by the Federal Arbitration Act (FAA). The FAA applies to all arbitration agreements involving commerce, and creates a body of federal substantive law of arbitrability, applicable to any arbitration agreement within coverage of the Act. Here, Plaintiffs challenge, among other things, the existence of an agreement to arbitrate. Conversely, the Bob Moore Defendants argue that an arbitration agreement exists and that it contains a broad delegation clause. Plaintiffs argue, broadly, that (1) no arbitration agreement exists (2) BMAG and BMAG Luxury 1 are not parties to the contract and, therefore, cannot enforce it (3) H.B. is not a party to the contract and, therefore, cannot be compelled to arbitrate her claims and (4) the arbitration agreement is unenforceable for a host of reasons. Defendants, on the other hand, argue that Plaintiffs' claims are subject to arbitration and that Leslie Brown has waived her right to bring claims on behalf of a putative class. The Arbitration Agreement's Existence and Signatories The Court starts with Plaintiffs' challenge to the making and existence of the arbitration agreement itself. When parties dispute the making of an agreement to arbitrate, a jury trial on the existence of the agreement is warranted unless there are no genuine issues of material fact regarding the parties' agreement. Thus, the party moving to compel arbitration bears the initial burden of presenting evidence sufficient to demonstrate the existence of an enforceable agreement and the opposing party's failure, neglect, or refusal to arbitrate; if it does so, the burden shifts to the nonmoving party to raise a genuine dispute of material fact regarding the existence of an agreement or the failure to comply therewith. As noted above, questions about the making of arbitration agreements turn on state law contract formation principles. Under Oklahoma law, a contract is simply an agreement to do or not to do something, requiring (1) parties capable of contracting (2) those parties' consent; (3) a lawful object and (4) sufficient consideration. In support of their motion to compel, Defendants have submitted the Retail Purchase Agreement, which Leslie Brown signed on the day she purchased the vehicle. Attached to this is the Agreement to Arbitrate, which also bears Ms. Brown's signature. A Bob Moore Auto Group logo appears in the top left corner of these documents; under Dealership Name on the Agreement to Arbitrate, BMAG Luxury 1, LLC is listed. Defendant Dabrowski also signed both agreements as the Authorized Dealership Representative. Thus, Defendants have produced sufficient evidence that they and Ms. Brown entered into an arbitration agreement. In response, Plaintiffs argue that no arbitration agreement existed. Specifically, they contend that, while BMAG Luxury's name appears on the Agreement to Arbitrate, it does not appear on the Retail Purchase Agreement. And, say Plaintiffs, because the underlying Retail Purchase Agreement was between BMAG and Ms. Brown, the Agreement to Arbitrate between BMAG Luxury and Ms. Brown is invalid. This argument is unconvincing. Both agreements are signed by Defendant Dabrowski, an agent of Bob Moore. Moreover, Ms. Brown specifically alleges that she entered into a contract with the Dealerships to purchase" the vehicle in question. Faced with the Bob Moore Defendants' evidence of an arbitration agreement, Ms. Brown, as a nonmovant, must raise a genuine issue of material fact regarding the arbitration agreement's existence. Her assertions about which Defendants are listed on which documents do not call into question the existence or making of the arbitration agreement overall. Thus, the Court finds that Ms. Brown entered into an arbitration agreement when she purchased the vehicle. Plaintiffs also deploy these same arguments, and others, to question whether BMAG and BMAG Luxury may enforce the arbitration agreement, and whether claims Leslie Brown brings on behalf of H.B. are subject to arbitration. While the existence of the arbitration agreement is straightforward, the issue of non-signatories' rights and liabilities is more involved. First, Ms. Brown argues that BMAG and BMAG Luxury lack standing to compel arbitration because they are not signatories to the arbitration agreement. As noted above, Ms. Brown explicitly alleges that she contracted with the Dealerships, BMAG and BMAG Luxury and that the Retail Purchase and Arbitration Agreements were both signed by Defendant Dabrowski, an employee and agent of the Dealerships. While the general rule is that a non-signatory to an arbitration agreement cannot compel a signatory to that agreement, an exception to this rule is where a signatory to the contract containing an arbitration clause raises allegations of substantially interdependent and concerted misconduct by both the nonsignatory and one or more of the signatories to the contract. Plaintiffs' complaint alleges that the causes of action arise out of a RETAIL PURCHASE AGREEMENT dated September 27, 2018 and that all of the Defendants have engaged in a pattern and practice and used deceit, unlawful conduct, breach of the peace, fraud, misrepresentation, and conversion against the Plaintiffs. As Plaintiffs group Defendants' together in their allegations, BMAG and BMAG Luxury, even treated as non-signatories, may compel arbitration here. Regarding H.B., Leslie Brown's minor daughter, however, the Court agrees with Ms. Brown: H.B.'s claims are not subject to arbitration because H.B. is not a party to the arbitration agreement. The Tenth Circuit recently decided a case similar to this one, involving children who were non-signatories to an arbitration agreement signed by their parent-plaintiff. In Jacks v. CMH Homes, Inc., Ms. Jacks brought claims individually and on behalf of her children regarding a manufactured home she purchased from defendant CMH. Jacks, 856 F.3d at 1303-04. CMH moved to compel arbitration; the district court granted the motion as to Ms. Jacks, but denied it as to her children because they were non-signatories to the agreement. Id. Affirming the district court, the Tenth Circuit held that CMH had failed to carry its burden of establishing that the non-signatory children could be held to the arbitration agreement. Like CMH, Defendants here fail to establish that claims brought on behalf of H.B. by Ms. Brown are subject to arbitration. First, Defendants argue that H.B.'s claims are subject to arbitration because they arise out of the vehicle purchase agreement. But this argument similar to the intertwined claims theory discussed above does not govern situations, such as this one, where signatory-defendants seek to compel arbitration with a non-signatory-plaintiff. Second, Defendants' reliance on a direct benefits estoppel theory under which a non-signatory plaintiff seeking the benefits of a contract is estopped from simultaneously attempting to avoid the contract's burdens, such as the obligation to arbitrate disputes and citation omitted, is unavailing. Remaining Arguments by the Parties Having found an existing arbitration agreement that the Bob Moore Defendants may enforce against claims brought by Ms. Brown in her individual capacity, but not against claims brought by Ms. Brown on behalf of H.B., the next step is to determine whether the Agreement to Arbitrate contains a delegation provision. If it does, then the Court will compel arbitration and stay proceedings unless Plaintiffs specifically challenge the enforceability of the delegation provision. The Agreement to Arbitrate contains the following language: By entering into this Agreement to Arbitrate (Agreement), Customer(s) and Dealership agree to settle by binding arbitration (4) any dispute with respect to the existence, scope or validity of this Agreement. The Court holds that this language, especially in comparison with similar provisions held to constitute delegation clauses, is clear and unmistakable evidence that the parties agreed to arbitrate arbitrability. Given that the parties have agreed to arbitrate arbitrability, the Court will compel arbitration unless Plaintiffs specifically attack the delegation clause. Plaintiffs challenge the arbitration agreement on the following grounds: (1) the agreement is oppressive, one-sided, and discriminatory (2) the agreement is coercive (3) the agreement is unenforceable (4) Plaintiffs' claims do not fall within the agreement's scope and (5) Defendants have committed fraud against the Plaintiffs. None of these arguments are specifically leveled against the delegation clause. Indeed, Plaintiffs never even mention delegation. Thus, in light of the unchallenged delegation clause in the parties' arbitration agreement, the Court must stay proceedings and compel arbitration of Leslie Brown's individual claims. Defendants' Motion to Compel Arbitration is hereby GRANTED IN PART and DENIED IN PART. Those claims against the Bob Moore Defendants brought by Ms. Brown on behalf of herself are subject to arbitration and are, therefore, stayed. Claims against Defendants brought by Ms. Brown on behalf of a putative class are also stayed, as the question of whether Ms. Brown waived her right to bring such claims must be determined by the arbitrator. Finally, those claims brought by Ms. Brown on behalf of her daughter, H.B., are not subject to arbitration. Therefore, these claims, along with claims against the remaining, non-moving Defendants, shall proceed in this Court. A full-text copy of the District Court's dated August 22, 2019 Order is available at https://tinyurl.com/yyr47tej from Leagle.com. Leslie Brown, Individually, Leslie Brown, Parent and Next Friend of H.B., a minor Child & Leslie Brown, On behalf of all other putative plaintiffs, similarly situated, Plaintiffs, represented by Laurence K. Donahoe, LKDLAW PC, 113 E. Noble Avenue, Guthrie, Oklahoma 73044 Bob Moore Auto Group LLC, a Domestic Limited Liability Company, BMAG Luxury 1 LLC, a Domestic Limited Liability Company & Jozef Daren Dabrowski, Defendants, represented by Jared R. Boyer , HB Law Partners PLLC & Rodney K. Hunsinger, II, HB Law Partners PLLC, 4217 28th Ave. NW, Suite 101, Norman, OK 73069 BRINKER INTERNATIONAL: Has Incurred $4.2MM in Cyber Security Suit ----------------------------------------------------------------- Brinker International, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on August 22, 2019, for the fiscal year ended June 30, 2019, that the company has incurred costs of $4.2 million related to a 2018 cyber security incident. On May 12, 2018, the company issued a public statement notifying guests that the company had discovered that credit and debit card numbers and related payment card information may have been acquired from Chili's locations without authorization as a result of a malware attack. The Company engaged third-party forensic firms and cooperated with law enforcement to investigate the matter. Based on the investigation of the company's third-party forensic experts, the company believes most Company-owned Chili's restaurants were impacted by the malware during time frames that vary by restaurant, but the company believes in each case began no earlier than March 21, 2018 and ended no later than April 22, 2018. As a result of the incident, the company has been assessed with financial responsibility by certain payment card companies for card issuer losses, card replacement costs and other charges issued by payment card companies. In addition, the company is the defendant in a purported class action lawsuit, alleging that the company negligently failed to provide adequate security to protect the payment card information of the plaintiffs, causing those individuals to suffer financial losses. The company may also be subject to fines and penalties imposed by state and federal regulators relating to or arising out of the incident. In the future the company may become subject to additional claims for purportedly fraudulent transactions arising out of the actual or alleged theft of credit or debit card information, and the company may also become subject to additional lawsuits or proceedings relating to the incident. While the company do not acknowledge responsibility to pay any such amounts imposed or demanded, these proceedings and demands may result in significant related settlement costs. Brinker said, "Since the incident, through June 26, 2019, we have incurred costs of $4.2 million related to the cyber security incident, and expect to incur significant legal and professional services expenses associated with the incident in future periods. Although we maintain cyber liability insurance, we are not able to reliably forecast all of the losses that may occur as a result of the incident or whether such costs will be covered by insurance. It is possible that our losses will be in excess of our cyber liability insurance coverage applicable to the incident. If losses exceed our cyber liability insurance coverage such excess losses could have a material adverse effect on our financial condition or results of operations in future periods." Brinker International, Inc., together with its subsidiaries, owns, develops, operates, and franchises casual dining restaurants in the United States and internationally. As of June 27, 2018, it owned, operated, or franchised 1,686 restaurants comprising 997 company-owned restaurants and 689 franchised restaurants under the Chili's Grill & Bar and Maggiano's Little Italy brand names. The company was founded in 1975 and is based in Dallas, Texas. BURFORD CAPITAL: Faces Merz Securities Suit in E.D. New York ------------------------------------------------------------ STEPHEN MERZ, Individually and on behalf of all others similarly situated v. BURFORD CAPITAL LIMITED, SIR PETER MIDDLETON GCB, CHRISTOPHER BOGART, JONATHAN MOLOT, AND CHARLES PARKINSON, Case No. 1:19-cv-04807 (E.D.N.Y., Aug. 21, 2019), seeks to recover compensable damages caused by the Defendants' violations of the federal securities laws under the Securities Exchange Act of 1934. The Plaintiff, a shareholder, alleges that the Defendants made false and/or misleading statements and/or failed to disclose that: (1) Burford has been manipulating its metrics, including return on invested capital ("ROIC") and internal rate of return ("IRR"), to create a misleading picture of investment returns to investors; (2) these manipulations hid the fact that the Company is at high risk for a liquidity crunch and is already arguably insolvent; and (3) as a result of the misconduct, the Defendants' statements about Burford's business, operations, and prospects were materially false and misleading. As a result of the Defendants' wrongful acts and omissions, and the precipitous decline in the market value of the Company's common shares, the Plaintiff and other Class members have suffered significant losses and damages. Burford is a litigation-financing company, offering services for clients participating in litigation, arbitration, assert recovery, and other legal finance activities. Burford is based in the United Kingdom, and has one of its primary business offices in New York City. The Individual Defendants are directors and officers of the Company.[BN] The Plaintiff is represented by: Phillip Kim, Esq. Laurence M. Rosen, Esq. THE ROSEN LAW FIRM, P.A. 275 Madison Ave., 34th Floor New York, NY 10016 Telephone: (212) 686-1060 Facsimile: (212) 202-3827 E-mail: pkim@rosenlegal.com lrosen@rosenlegal.com CALVARY PORTFOLIO SERVICES: Neumann Suit Transferred to S.D.N.Y. ---------------------------------------------------------------- The case, David Neumann, individually and on behalf of all other similarly situated consumers, v. Cavalry Portfolio Services, LLC, Case No. 33234/2019, was transferred from the Rockland County Supreme Court to the United States District Court for the Southern District of New York on July 19, 2019. In this complaint, Plaintiff alleges that the Defendant has violated the Fair Debt Collection Act. This consumer credit-related lawsuit is now assigned to Hon. Judge Nelson Stephen Roman. The United States District Court for the Southern District of New York has opened Case No. 7:19-cv-06750-NSR for further proceedings. Founded on 2002, Cavalry Portfolio Services, LLC is engaged in the acquisition and management of non-performing consumer loan portfolios. Its principal place of business is at 500 Summit Lake Drive, Suite 400 Valhalla, New York. [BN] Attorneys for Defendant: Thomas Robert Dominczyk, Esq. MAURICE & NEEDLEMAN, P.C. 5 Walter E. Foran Blvd. Suite 2007 Flemington, NJ 08822 Telephone: (908) 237-4550 Facsimile: (908) 237-4551 E-mail: tdominczyk@mauricewutscher.com CANCER GENETICS: Bid to Dismiss NJ Consolidated Suit Still Pending ------------------------------------------------------------------ Cancer Genetics, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 19, 2019, for the quarterly period ended June 30, 2019, that the motion to dismiss filed in the class action suit entitled, In re Cancer Genetics, Inc. Securities Litigation, is still pending. On April 5, 2018 and April 12, 2018, purported stockholders of the Company filed nearly identical putative class action lawsuits in the U.S. District Court for the District of New Jersey, against the Company, Panna L. Sharma, John A. Roberts, and Igor Gitelman, captioned Ben Phetteplace v. Cancer Genetics, Inc. et al., No. 2:18-cv-05612 and Ruo Fen Zhang v. Cancer Genetics, Inc. et al., No. 2:18-06353, respectively. The complaints alleged violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and SEC Rule 10b-5 based on allegedly false and misleading statements and omissions regarding the company's business, operational, and financial results. The lawsuits sought, among other things, unspecified compensatory damages in connection with purchases of the company's stocks between March 23, 2017 and April 2, 2018, as well as interest, attorneys' fees, and costs. On August 28, 2018, the Court consolidated the two actions in one action captioned In re Cancer Genetics, Inc. Securities Litigation (the "Securities Litigation") and appointed shareholder Randy Clark as the lead plaintiff. On October 30, 2018, the lead plaintiff filed an amended complaint, adding Edward Sitar as a defendant and seeking, among other things, compensatory damages in connection with purchases of CGI stock between March 10, 2016 and April 2, 2018. On December 31, 2018, Defendants filed a motion to dismiss the amended complaint for failure to state a claim. On March 1, 2019, lead plaintiff filed its opposition to the motion to dismiss. On April 15, 2019, defendants filed their reply in further support of their motion to dismiss. Defendants' motion remains pending before the Court. Cancer Genetics said, "The Company is unable to predict the ultimate outcome of the Securities Litigation and therefore cannot estimate possible losses or ranges of losses, if any." Cancer Genetics, Inc. develops, commercializes, and provides molecular and biomarker-based tests and services in the United States, Europe, and Asia. Cancer Genetics, Inc. was founded in 1999 and is based in Rutherford, New Jersey. CARDINAL HEALTH: Continues to Defend Louisiana Sheriffs Fund Suit ----------------------------------------------------------------- Cardinal Health, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on August 20, 2019, for the fiscal year ended June 30, 2019, that the company continues to defend a class action suit initiated by Louisiana Sheriffs' Pension & Relief Fund. In August 2019, the Louisiana Sheriffs' Pension & Relief Fund filed a purported class action complaint against Cardinal Health and certain current and former officers and employees in the United States District Court for the Southern District of Ohio purportedly on behalf of all purchasers of the company's common shares between March 2015 and May 2018. The complaint alleges that the defendants violated Sections 10(b) and 20(a) of the Securities and Exchange Act of 1934 by making misrepresentations and omissions related to the integration of the Cordis business and inventory and supply chain problems within the Cordis business, and seeks to recover unspecified damages and equitable relief for the alleged misstatements and omissions. Cardinal said, "We believe that the claims asserted in this complaint are without merit and intend to vigorously defend against them. Due to the early stage of this proceeding, it is not possible to reasonably estimate the amount of any possible loss or range of loss in this matter." Cardinal Health, Inc. operates as an integrated healthcare services and products company in the United States and internationally. It provides medical products and pharmaceuticals, and solutions that enhance supply chain efficiency for hospitals, healthcare systems, pharmacies, ambulatory surgery centers, clinical laboratories, and physician offices. Cardinal Health, Inc. was founded in 1979 and is headquartered in Dublin, Ohio. CARDINAL HEALTH: Facing Bellwether Trial in Opioid Suit in October ------------------------------------------------------------------ Cardinal Health, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on August 20, 2019, for the fiscal year ended June 30, 2019, that a court has ordered that a bellwether trial involving two county plaintiffs begin in October 2019. Pharmaceutical wholesale distributors, including the company, have been named as defendants in approximately 2,500 lawsuits relating to the distribution of prescription opioid pain medications. These lawsuits have been filed in various federal, state, and other courts by a variety of plaintiffs, primarily counties, municipalities and political subdivisions. Plaintiffs also include unions and other health and welfare funds, hospital systems and other healthcare providers, as well as individuals. Of these lawsuits, 95 are purported class actions. The lawsuits seek equitable relief and monetary damages based on a variety of legal theories including various common law claims, such as negligence, public nuisance and unjust enrichment as well as violations of controlled substance laws, the Racketeer Influenced and Corrupt Organizations Act and various other statutes. These lawsuits also name pharmaceutical manufacturers, retail pharmacy chains and other entities as defendants. The vast majority of these lawsuits were filed in U.S. federal court and have been transferred for consolidated pre-trial proceedings in a Multi-District Litigation proceeding in the U.S. District Court for the Northern District of Ohio. The court, among other things, has ordered that a bellwether trial involving two county plaintiffs begin in October 2019. Motions for summary judgment have been filed by plaintiffs and defendants. In addition, 18 state attorneys general have filed lawsuits against distributors, including the company, in various state courts. Several of these lawsuits, including lawsuits filed by the New York, Ohio and Washington Attorneys General, as well as other cases pending in state court, are currently scheduled to go to trial in the second half of fiscal year 2020 or early fiscal 2021. In addition to the 18 state attorneys general that have filed suit, 43 state attorneys general have formed a multi-state task force to investigate the manufacturing, distribution, dispensing and prescribing practices of opioid medications. Cardinal said, "We have received requests related to the multi-state investigation, as well as separate civil investigative demands, subpoenas or requests for information from these and other state attorneys general offices. We are cooperating with the offices conducting these investigations." In connection with these proceedings, distributors continue to discuss possible resolution with various parties, including state attorneys general and representatives of the MDL plaintiffs. Cardinal said, "We are vigorously defending ourselves in all of these opioid-related matters. Given the uncertainty surrounding these lawsuits and investigations, we are unable to predict their outcome or estimate a range of reasonably possible losses, but the defense and resolution of these lawsuits could have a material adverse effect on our results of operations, financial condition, cash flows and liquidity or have adverse reputational or operational effects on our business." Cardinal Health, Inc. operates as an integrated healthcare services and products company in the United States and internationally. It provides medical products and pharmaceuticals, and solutions that enhance supply chain efficiency for hospitals, healthcare systems, pharmacies, ambulatory surgery centers, clinical laboratories, and physician offices. Cardinal Health, Inc. was founded in 1979 and is headquartered in Dublin, Ohio. CARRIZO (MARCELLUS): Court Denies Common Benefit Fund in Slamon --------------------------------------------------------------- The United States District Court for the Middle District of Pennsylvania issued a Memorandum Opinion denying Plaintiffs' Motion seeking an Order Establishing Common Benefit Fund in the case captioned JAMES SLAMON, Plaintiff, v. CARRIZO (MARCELLUS) LLC, et al., Defendants. No. 3:16-CV-02187. (M.D. Pa.). Presently before the Court is the Motion of Plaintiff James Slamon and Plaintiff's counsel LeVan Law Group and Berger Montague PC seeking an Order from this Court establishing a Common Benefit Fund. Plaintiff James Slamon claims that he and other similarly situated individuals were paid royalties on their oil and gas leases that were improperly calculated by Defendants, Reliance Marcellus II LLC, Reliance Holdings USA, Inc. On October 3, 2016, Slamon filed a five-count Complaint in the Court of Common Pleas of Susquehanna County, Pennsylvania seeking declaratory relief for breach of the terms of the Lease (Count I) and alleging breach of contract (Count II) breach of contract through a breach of the implied duty of good faith and fair dealing (Count III) and breach of fiduciary duty (Count IV) and requesting an accounting (Count V). Plaintiff and Plaintiff's counsel summarize their theory in support of their Motion for the Establishment of a Common Fund as follows: In essence, the putative Class Member is releasing the exact claims at issue in this case that have been vigorously pursued by Plaintiff and Class Counsel for nearly two years. The consideration for giving up these claims against BKV, Carrizo, and Reliance is, according to the terms of the Release, TEN DOLLARS ($10.00), but, in reality, is the signing bonus monies, which range from $100 to more than $260,000. There can be little doubt that the signing bonus is exactly what it appears to be a settlement offer to settle the claims in the instant case. BKV then sets forth its reasons why the motion of Plaintiff and Plaintiff's counsel should be denied. First, BKV argues that if it completes its settlement with potential class members before class certification, then the Court is without jurisdiction to order the recipients to contribute a portion of their payments to compensate Class Counsel. In other words, because there has been no class certification and the potential class members do not have individual lawsuits pending before the Court, the Court does not have authority to order that the potential class members contribute a portion of their settlements for payment of Class Counsel's fees. Second, BKV argues that because there has been no certification of a class, no proper notice of the action and no opportunity to opt out, there is no basis upon which to conclude that any absentee plaintiff has consented to being subject to the Court's jurisdiction. Further, BKV asserts that to the extent that the curative communication from BKV to the lessors was proper notice of this action, the settling lessors are expressly choosing not to be a party to this litigation, which they have a right to do. A review of the governing case law and the current posture of this action demonstrate that Plaintiff's Motion for an Order Establishing a Common Benefit Fund must be denied. First, there has been no class certification under Fed.R. Civ. P. 23 in this case. Plaintiff filed his Motion for an Order Establishing a Common Benefit Fund on August 30, 2018, and 11 months later, moved for the first time for class certification. That motion is not yet ripe as Defendants' responses are due on September 3, 2019, and Plaintiff's reply thereafter on October 21, 2019. Second, Plaintiff has not achieved the status of a successful litigant, either by judgment or settlement of his claim. Third, there is no clear nexus between Plaintiff's filing of his Complaint and this Court's denial of Defendants' motions to dismiss Plaintiff's Complaint (with the exception of Count IV for breach of fiduciary duty and the settlement offers which BKV made in accordance with this Court's Memorandum Opinion and Order filed July 27, 2018, which granted as modified Plaintiff's Motion for Expedited Emergency Relief Pursuant to Federal Rule of Civil Procedure 23(d), ordered the BKV Defendants to provide Plaintiff's counsel with the identity of all putative Class Members and which further ordered that BKV send a curative notice, the text of which is set forth in Doc. 58-1, to all putative Class Members to whom BKV had sent the communication which Plaintiff's Motion deemed to be false or misleading and which extended the deadline to such putative Class Members for responding to BKV's settlement offers until August 31, 2018. The Court's Order of July 27, 2018, also declared not enforceable any previously executed cover letter, Full and Final Release, and/or Lease Amendment and Ratification that any putative Class Member had executed and returned to BKV unless and until the Class Member re-signs and returns the Materials after receipt of the proposed curative notice. Plaintiff has not submitted sufficient evidence that any settlement offers accepted by members of the putative class were so accepted as a result of Plaintiff's lawsuit. BKV asserts that it commenced negotiation for amendments to the oil and gas leases to which the putative Class Members, as lessors, were party with it or its predecessors, Defendants Carrizo and Reliance, before Plaintiff's suit was filed. Moreover, as this Court has previously ruled, Defendants may negotiate settlement with potential members of a class prior to class certification. Despite the extensive explanation offered to members of the putative class and, perhaps more importantly, notwithstanding this Court's Order rendering unenforceable any prior execution of a cover letter, release, or lease amendment so as to allow putative Class Members an opportunity to decide against settling their claims against BKV and the other Defendants in light of the intent of Plaintiff to seek class certification, various lessors nonetheless again entered into releases and lease amendments with BKV in exchange for valuable consideration. From this sequence of events, the Court cannot draw the inferences which Plaintiff argues should be drawn: (1) that the filing of Plaintiff's lawsuit and its actions thereafter in opposing motions to dismiss and engaging in discovery present a clear nexus between those actions and the individual settlements undertaken by various lessors (2) so as to allow the conclusion that this lawsuit has conferred a substantial benefit upon the settling lessors which (3) requires the establishment of a common benefit fund. A full-text copy of the District Court's dated August 22, 2019 Memorandum Opinion is available at https://tinyurl.com/y3klcj6k from Leagle.com. Janie Slamon, as Executrix of the Estate of James Slamon, Plaintiff, represented by Gerard M. Karam, Mazzoni and Karam, 321 Spruce Street, Suite 201, Scranton, PA, 18503, Peter H. LeVan, Jr. -- plevan@levanlawgroup.com -- LeVan Law Group LLC, Shanon J. Carson -- scarson@bm.net -- Berger Montague PC & Glen L. Abramson -- gabramson@bm.net -- Berger & Montague, P.C. Carrizo (Marcellus) LLC, Defendant, represented by Amy L. Groff -- amy.groff@klgates.com -- K&L Gates LLP & David R. Fine -- david.fine@klgates.com -- K&L Gates LLP. Reliance Marcellus II, LLC, Defendant, represented by Justin H. Werner -- jwerner@reedsmith.com -- Reed Smith LLP, Stefanie Lepore Burt -- sburt@reedsmith.com -- Reed Smith LLP & Alex G. Mahfood -- amahfood@reedsmith.com -- Reed Smith LLP. Reliance Holdings USA, Inc., Defendant, represented by Justin H. Werner, Reed Smith LLP & Stefanie Lepore Burt, Reed Smith LLP. CASA SYSTEMS: Hook Sues over 2017 IPO ------------------------------------- DONALD HOOK, Individually and on Behalf of All Others Similarly Situated, the Plaintiff, v. CASA SYSTEMS, INC., WEIDONG CHIEN, LUCY XIE, JOE TIBBETTS, BILL STYSLINGER, BRUCE R. EVANS, GARY HALL, JERRY GUO, MORGAN STANLEY & CO. LLC, MACQUARIE CAPITAL (USA) INC., LLC, RAYMOND JAMES & ASSOCIATES, INC., NORTHLAND SECURITIES, INC., AND SUMMIT PARTNERS, the Defendants, Case No. 654548/2019 (N.Y. Sup., Aug. 9, 2019), asserts non-fraud, strict liability claims under Sections 11, 12, 15 of the Securities Act of 1933 against Casa, certain of Casa's officers and directors, and the underwriters of an initial public stock (IPO). The Plaintiff brings the securities class action on behalf of all persons who purchased or otherwise acquired Casa common stock pursuant or traceable to the Registration Statement and Prospectus issued in connection with Casa's December 15, 2017 IPO. The Defendants used a negligently-prepared false and misleading Registration Statement to lure investors into buying Casa's common stock pursuant to its IPO by omitting material information regarding its core business. Casa is a hardware and software technology company that principally sells its products to cable service providers in order for them to deliver voice, video and data services.[BN] Counsel for the Plaintiff and the Proposed Class are: Stanley D. Bernstein, Esq. Michael S. Bigin, Esq. BERNSTEIN LIEBHARD LLP 10 East 40th Street New York, NY 10016 Telephone: (212) 779 1414 Facsimile: (212) 779 3218 E-mail: bernstein@bernlieb.com bigin@bernlieb.com - and - Guillaume Buell, Esq. THORNTON LAW FIRM LLP 1 Lincoln Street Boston, MA 02111 Telephone: (617) 720 1333 Facsimile: (617) 720 2445 E-mail: gbuell@tenlaw.com CBE GROUP: Placeholder Bid for Class Certification Filed -------------------------------------------------------- In the class action lawsuit captioned as MARYANN OLSZEWSKI, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. THE CBE GROUP, INC., the Defendant, Case No. 2:19-cv-01253-JPS (E.D Wisc.), the Plaintiff asks the Court for an order certifying a class, appointing the Plaintiff as class representative, and appointing Ademi & O'Reilly, LLP as Class Counsel, and for such other and further relief as the Court may deem appropriate. The Plaintiff further asks that the Court stay this class certification motion until an amended motion for class certification is filed, and that the Court grant the parties relief from the local rules' automatic briefing schedule and requirement that Plaintiffs file a brief and supporting documents in support of this motion. To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion. Damasco v. Clearwire Corp., 662 F.3d 891, 896 (7th Cir. 2011), overruled on other grounds, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015) ("The pendency of that motion [for class certification] protects a putative class from attempts to buy off the named plaintiffs."). While the Seventh Circuit has held that the specific procedure described in Campbell-Ewald cannot force the individual settlement of a class representative's claims, the same decision cautions that other methods may prevent a plaintiff from representing a class. Fulton Dental, LLC v. Bisco, Inc., 860 F.3d 541, 545-46 (7th Cir. 2017).[CC] Attorneys for the Plaintiffs are: Mark A. Eldridge, Esq. John D. Blythin, Esq. Jesse Fruchter, Esq. Ben J. Slatky, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482-8000 Facsimile: (414) 482-8001 E-mail: jblythin@ademilaw.com meldridge@ademilaw.com jfruchter@ademilaw.com bslatky@ademilaw.com CBS CORP: Bid to Dismiss New York Consolidated Class Suit Pending ----------------------------------------------------------------- CBS Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 8, 2019, for the quarterly period ended June 30, 2019, that the defendants' motions to dismiss the consolidated "Samit and Lantz" class suit remain pending. On August 27, 2018 and on October 1, 2018, each of Gene Samit and John Lantz, respectively, filed putative class action suits in the United States District Court for the Southern District of New York, individually and on behalf of others similarly situated, for claims that are similar to those alleged in the amended complaint described below. On November 6, 2018, the Court entered an order consolidating the two actions. On November 30, 2018, the Court appointed Construction Laborers Pension Trust for Southern California as the lead plaintiff of the consolidated action. On February 11, 2019, the lead plaintiff filed a consolidated amended putative class action complaint against the Company, certain current and former senior executives and members of the Board. The consolidated action is stated to be on behalf of purchasers of the Company's Class A Common Stock and Class B Common Stock between September 26, 2016 and December 4, 2018. This action seeks to recover damages arising during this time period allegedly caused by the defendants' purported violations of the federal securities laws, including by allegedly making materially false and misleading statements or failing to disclose material information, and seeks costs and expenses as well as remedies under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder. On April 12, 2019, the defendants filed motions to dismiss this action, which are pending. The Company believes that the claims are without merit and is currently unable to determine a range of potential liability, if any. CBS said, "Accordingly, no accrual for this matter has been made in the Company's consolidated financial statements." CBS Corporation operates as a mass media company worldwide. The company operates in four segments: Entertainment, Cable Networks, Publishing, and Local Media. The company was founded in 1986 and is headquartered in New York, New York. CEMTREX INC: Court Approves Securities Class Action Settlement -------------------------------------------------------------- Cemtrex, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 19, 2019, for the quarterly period ended June 30, 2019, that the company has reached a settlement in the securities class action litigation before the U.S. District Court for the Eastern District of New York. Three securities class action complaints were filed against the company and certain of its executive officers in the U.S. District Court for the Eastern District of New York on February 24, 2017. Under the requirements of the Private Securities Litigation Reform Act of 1995, these three alleged class actions, as well as any further related actions, were consolidated into a single lawsuit on March 9, 2018. A follow-on, related derivative complaint also was filed against the company and its executive officers and directors in New York State court on April 10, 2017. That derivative action has been stayed by agreement of the parties until after the motion to dismiss process in the consolidated alleged class actions has run its course. Pursuant to a stipulated District Court schedule, plaintiffs filed an Amended Consolidated Class Action Complaint on May 7, 2018. The company filed a motion to dismiss this class action with the Court on July 6, 2018. On October 4, 2018, the Company reached a settlement on the securities class action litigation through a mediator for an amount of $625,000 and also reached a settlement on Derivative action for an amount of $100,000. This settlement is subject to a final court approval which will take several months. The settlement amounts shall be paid by the Company's insurance carrier. No further updates were provided in the Company's SEC report. Cemtrex, Inc. (CETX) is a diversified technology company that's driving innovation in a wide range of sectors, including smart technology, virtual and augmented realities, advanced electronic systems, industrial solutions, and intelligent security systems. The company is based in Brooklyn, New York. CHAMPION PETFOODS: Reitman et al Seek to Certify Class ------------------------------------------------------ In the class action lawsuit styled as JENNIFER REITMAN, CAROL SHOAFF and ERIN GRANT, individually and on behalf of a class of similarly situated individuals, the PLAINTIFFS, vs. CHAMPION PETFOODS USA, INC. and CHAMPION PETFOODS LP, the DEFENDANTS, Case No. 2:18-cv-01736-DOC-JPR (C.D. Cal.), the Plaintiffs move the Court to enter an order: 1. certifying a class of: "all persons residing in of the State of California who purchased the Dog Food 1 from July 1, 2014 to the present"; 2. certifying a Pentobarbital Subclass of: "all persons residing in the State of California who purchased JBS Dog Foods between January 2016 and December 2018". 3. appointing themselves as Class Representatives; and 4. appointing Lockridge Grindal Nauen P.L.L.P.; Gustafson Gluek, PLLC; Cuneo Gilbert & LaDuca LLP; Robbins Arroyo LLP; and Lite DePalma Greenberg, LLC as Class Counsel.[CC] Attorneys for the Plaintiffs are: Rebecca A. Peterson, Esq. Robert K. Shelquist, Esq. LOCKRIDGE GRINDAL NAUEN P.L.L.P. 100 Washington Avenue South, Suite 2200 Minneapolis, MN 55401 Telephone: (612) 339-6900 Facsimile: (612) 339-0981 E-mail: rapeterson@locklaw.com rkshelquist@locklaw.com - and - Kevin A. Seely, esq. Steven M. McKany, esq. ROBBINS ARROYO LLP 600 B Street, Suite 1900 San Diego, CA 92101 Telephone: (619) 525-3990 Facsimile: (619) 525-3991 E-mail: kseely@robbinsarroyo.com smckany@robbinsarroyo.com - and- Daniel E. Gustafson, Esq. Karla M. Gluek, Esq. Joseph C. Bourne, Esq. Raina C. Borrelli, Esq. GUSTAFSON GLUEK, PLLC Canadian Pacific Plaza 120 South 6th Street, Suite 2600 Minneapolis, MN 55402 Telephone: (612) 333-8844 Facsimile: (612) 339-6622 E-mail: dgustafson@gustafsongluek.com kgluek@gustafsongluek.com jbourne@gustafsongluek.com rborrelli@gustafsongluek.com - and - Charles Laduca, Esq. Katherine Van Dyck, Esq. CUNEO GILBERT & LADUCA, LLP 4725 Wisconsin Ave NW, Suite 200 Washington, DC 20016 Telephone: 202-789-3960 Facsimile: 202-789-1813 E-mail: kvandyck@cuneolaw.com charles@cuneolaw.com - and - Joseph Depalma, Esq. Susana Cruz Hodge, Esq. LITE DEPALMA GREENBERG, LLC 570 Broad Street, Suite 1201 Newark, NJ 07102 Telephone: (973) 623-3000 E-mail: jdepalma@litedepalma.com scruzhodge@litedepalma.com CHI NEBRASKA: Has Made Unsolicited Calls, Blackbourn Suit Claims ---------------------------------------------------------------- APRIL BLACKBOURN, individually and on behalf of all others similarly situated, Plaintiff v. CHI NEBRASKA d/b/a CHI HEALTH, Defendant, Case No. 8:19-cv-00352 (D. Neb., Aug. 17, 2019) seeks to stop the Defendants' practice of making unsolicited calls. Chi Nebraska D/B/A Chi Health provides nursing and health-related care to patients. [BN] The Plaintiff is represented by: Mark L. Javitch, Esq. JAVITCH LAW OFFICE 480 S. Ellsworth Ave San Mateo, CA 94401 Telephone: (650) 781-8000 Facsimile: (650) 648-0705 CHICO'S FAS: Mediation in Fisher Class Suit Next Month ------------------------------------------------------ Chico's FAS, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 28, 2019, for the quarterly period ended August 3, 2019, that mediation in Fisher v. Chico's FAS, Inc., is set for October 22, 2019. In May 2019, the Company was named as a defendant in Fisher v. Chico's FAS, Inc., a putative class action filed in the United States District Court for the Southern District of California. The complaint alleges that the Company advertised fictitious prices and corresponding phantom discounts on its made-for-outlet products in its Chico's outlets in violation of California's Unfair Competition Laws, California's False Advertising Laws and the California Consumer Legal Remedies Act. The plaintiff seeks disgorgement of the Company's profits and alleged unjust enrichment resulting from such advertising practices, injunctive relief, a corrective advertising campaign, as well as attorneys' fees and costs. The Company was served on May 10, 2019. The parties have scheduled a mediation date of October 22, 2019. Additionally, the parties have jointly asked the court to extend Companys response deadline to November 22, 2019. Chico's FAS, Inc. operates as an omnichannel specialty retailer of women's private branded casual-to-dressy clothing, intimates, and complementary accessories. It operates under the Chico's, White House Black Market (WHBM), and Soma brand names. The company also sells its products through catalogs and its Websites. Chico's FAS, Inc. was founded in 1983 and is headquartered in Fort Myers, Florida. CHICO'S FAS: Petition for Rehearing in Altman Suit Pending ---------------------------------------------------------- Chico's FAS, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 28, 2019, for the quarterly period ended August 3, 2019, that the petition for rehearing in the class action suit entitled, Altman v. White House Black Market, Inc., remains pending. In July 2015, White House Black Market, Inc. ("WHBM") was named as a defendant in Altman v. White House Black Market, Inc., a putative class action filed in the United States District Court for the Northern District of Georgia ("District Court"). The complaint alleges that WHBM, in violation of federal law, willfully published more than the last five digits of a credit or debit card number on customers' point-of-sale receipts. The plaintiff seeks an award of statutory damages of $100 to $1,000 for each alleged willful violation of the law, as well as attorneys' fees, costs and punitive damages. WHBM denies the material allegations of the complaint and believes the case is without merit. On February 12, 2018, the District Court issued an order certifying the class. On April 9, 2018, the District Court, sua sponte, issued an order granting WHBM's earlier 2016 request to appeal, to the Eleventh Circuit Court of Appeals ("Eleventh Circuit"), the District Court's ruling that the plaintiff has standing to maintain the lawsuit. On April 19, 2018, WHBM filed a petition for review in the Eleventh Circuit. In the meantime, the District Court stayed all further proceedings in the case pending the outcome of the appeal in the Eleventh Circuit. On July 12, 2018, the plaintiff and WHBM notified the Eleventh Circuit that the plaintiff and WHBM had reached a class settlement on all claims and therefore voluntarily dismissed WHBM's appeal to the Eleventh Circuit. On August 2, 2018, the District Court reopened the case for purposes of reviewing/approving the proposed settlement. On October 22, 2018, the plaintiff filed the settlement papers with the District Court, along with a motion to stay the District Court's consideration of the settlement pending the Eleventh Circuit's final disposition of Muransky v. Godiva Chocolatier, Inc., in which the Eleventh Circuit held, in an opinion issued October 3, 2018, that the display of the first five and last four digits of a credit or debit card number on a customer's receipt given at the point of sale establishes a "concrete injury" sufficient to confer Article III standing, enabling the customer to maintain a lawsuit. The motion to stay was granted on November 15, 2018. A petition for rehearing on the October 2018 opinion was filed in the Muransky case on October 24, 2018. The Eleventh Circuit issued a new opinion on April 22, 2019, sua sponte, superseding the October 2018 opinion, and reaffirming the establishment of Article III standing in the Muransky case. A petition for rehearing on that April 2019 opinion was filed on May 13, 2019 and is currently pending before the Eleventh Circuit. The Muransky opinion, if not altered on the petition for rehearing, would bind the District Court in the Altman case and likely establish that the plaintiff has standing to maintain her lawsuit against WHBM. In such event, the stay will be lifted and the proposed settlement will be reviewed by the District Court. Chico's FAS said, "If the Eleventh Circuit does not find standing in the Muransky case, the parties have agreed to submit the proposed settlement to the Superior Court for Cobb County, Georgia for approval. The proposed settlement would not have a material adverse effect on the Company's consolidated financial condition or results of operations." Chico's FAS said, "However, no assurance can be given that the proposed settlement will be approved. If the proposed settlement is rejected and the case were to proceed as a class action and WHBM were to be unsuccessful in its defense on the merits, then the ultimate resolution of the case could have a material adverse effect on the Company's consolidated financial condition or results of operations." Chico's FAS, Inc. operates as an omnichannel specialty retailer of women's private branded casual-to-dressy clothing, intimates, and complementary accessories. It operates under the Chico's, White House Black Market (WHBM), and Soma brand names. The company also sells its products through catalogs and its Websites. Chico's FAS, Inc. was founded in 1983 and is headquartered in Fort Myers, Florida. CHILDREN'S PLACE: Court Lifts Stay in Rael Class Action ------------------------------------------------------- The Children's Place, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 27, 2019, for the quarterly period ended August 3, 2019, that the stay in Rael v. The Children's Place, Inc., has been lifted. The Company is a defendant in Rael v. The Children's Place, Inc., a purported class action, pending in the U.S. District Court, Southern District of California. In the initial complaint filed in February 2016, the plaintiff alleged that the Company falsely advertised discount prices in violation of California's Unfair Competition Law, False Advertising Law, and Consumer Legal Remedies Act. The plaintiff filed an amended complaint in April 2016, adding allegations of violations of other state consumer protection laws. In August 2016, the plaintiff filed a second amended complaint, adding an additional plaintiff and removing the other state law claims. The plaintiffs' second amended complaint seeks to represent a class of California purchasers and seeks, among other items, injunctive relief, damages, and attorneys' fees and costs. The Company engaged in mediation proceedings with the plaintiffs in December 2016 and April 2017. The parties reached an agreement in principle in April 2017, and signed a definitive settlement agreement in November 2017, to settle the matter on a class basis with all individuals in the U.S. who made a qualifying purchase at The Children's Place from February 11, 2012 through the date of preliminary approval by the court of the settlement. The settlement is subject to court approval and provides for merchandise vouchers for class members who submit valid claims, as well as payment of legal fees and expenses and claims administration expenses. The court stayed the matter in April 2018, pending an appellate court ruling in another lawsuit to which the Company is not a party. In June 2019, the court entered an order lifting the stay. The settlement, if ultimately approved by the court, will result in the dismissal of all claims through the date of the court’s preliminary approval of the settlement. However, if the settlement is rejected by the court, the parties will likely return to litigation, and in such event, no assurance can be given as to the ultimate outcome of this matter. In connection with the proposed settlement, the Company recorded a reserve for $5.0 million in its consolidated financial statements in the first quarter of 2017. The Children's Place, Inc. operates as a children's specialty apparel retailer. The company operates through two segments, The Children's Place U.S. and The Children's Place International. The company was formerly known as The Children's Place Retail Stores, Inc. and changed its name to The Children's Place, Inc. in June 2014. The Children's Place, Inc. was founded in 1969 and is headquartered in Secaucus, New Jersey. CORNERSTONE BUILDING: Still Defends Voigt Class Suit ---------------------------------------------------- Cornerstone Building Brands, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 7, 2019, for the quarterly period ended June 30, 2019, that the company continues to defend a class action suit initiated by Gary D. Voigt. On August 14, 2009, the Company entered into an Investment Agreement (as amended, the "Investment Agreement"), by and between the Company and Clayton, Dubilier & Rice Fund VIII, L.P., a Cayman Islands exempted limited partnership ("CD&R Fund VIII"). In connection with the Investment Agreement and the Stockholders Agreement dated October 20, 2009 (the "Old Stockholders Agreement"), CD&R Fund VIII and CD&R Friends & Family Fund VIII, L.P., a Cayman Islands exempted limited partnership ("CD&R FF Fund" and, together with CD&R Fund VIII, the "CD&R Fund VIII Investor Group") purchased convertible preferred stock of the Company, which was converted into shares of our common stock on May 14, 2013. On December 11, 2017, the CD&R Fund VIII Investor Group completed a registered underwritten offering of 7,150,000 shares of the Company's Common Stock at a price to the public of $19.36 per share (the "2017 Secondary Offering"). Pursuant to the underwriting agreement, at the CD&R Fund VIII Investor Group request, the Company purchased 1.15 million of the 7.15 million shares of the Company’s Common Stock from the underwriters in the 2017 Secondary Offering at a price per share equal to the price at which the underwriters purchased the shares from the CD&R Fund VIII Investor Group. The total amount the Company spent on these repurchases was $22.3 million. Ply Gem Holdings was acquired by CD&R Fund X and Atrium Intermediate Holdings, LLC, GGC BP Holdings, LLC and AIC Finance Partnership, L.P. (collectively, the "Golden Gate Investor Group") and merged with Atrium on April 12, 2018 (the "Ply Gem-Atrium Merger"). Pursuant to the terms of the Merger Agreement, on November 16, 2018, the Company entered into (i) a stockholders agreement (the "New Stockholders Agreement") between the Company, and each of the CD&R Fund VIII Investor Group, CD&R Pisces Holdings, L.P., a Cayman Islands exempted limited partnership ("CD&R Pisces", and together with the CD&R Fund VIII Investor Group, the "CD&R Investor Group") and the Golden Gate Investor Group (together with the CD&R Investor Group, the "Investors"), pursuant to which the Company granted to the Investors certain governance, preemptive and subscription rights and (ii) a registration rights agreement (the "New Registration Rights Agreement") between the Company and each of the Investors, pursuant to which the Company granted the Investors customary demand and piggyback registration rights, including rights to demand registrations and underwritten shelf registration statement offerings with respect to the shares of the Company's Common Stock that are held by the Investors following the consummation of the Merger. Pursuant to the terms of the New Stockholders Agreement, the Company and the CD&R Fund VIII Investor Group terminated the Old Stockholders Agreement. Pursuant to the terms of the New Registration Rights Agreement, the Company and the CD&R Fund VIII Investor Group terminated the Registration Rights Agreement, dated as of October 20, 2009 (the "Old Registration Rights Agreement"), by and among the Company and the CD&R Fund VIII Investor Group. On November 14, 2018, an individual stockholder, Gary D. Voigt, filed a putative class action complaint in the Delaware Court of Chancery against Clayton, Dubilier & Rice, LLC (CD&R), Clayton, Dubilier & Rice Fund VIII, L.P. (CD&R Fund VIII), and certain directors of the Company. Voigt purports to assert claims on behalf of himself, on behalf of a class of other similarly situated stockholders of the Company, and derivatively on behalf of the Company, the nominal defendant. An amended complaint was filed on April 11, 2019. The amended complaint asserts claims for breach of fiduciary duty and unjust enrichment against Clayton, Dubilier & Rice Fund VIII, L.P., (CD&R Fund VIII) and Clayton, Dubilier & Rice, LLC (CD&R), and for breach of fiduciary duty against the director defendants in connection with the Merger. Voigt seeks damages in an amount to be determined at trial. The Company intends to vigorously defend the litigation. Cornerstone Building Brands, Inc., formerly NCI Building Systems, Inc., incorporated on December 23, 1991, is a manufacturer and marketer of metal products in North America. The Company's operating segments include Engineered building systems, Metal components, Insulated Metal Panels and Metal coil coating. The company is based in Cary, North Carolina. COSTCO WHOLESALE: Demurrer to Complaint in Littlejohn Affirmed --------------------------------------------------------------- The Court of Appeals of California, First District, Division Three, issued an Opinion affirming the Trial Court's Order granting Defendant's Demurrer to Complaint in the case captioned LARRY LITTLEJOHN, Plaintiff and Appellant, v. COSTCO WHOLESALE CORPORATION, Defendant and Respondent. No. A144440. (Cal. App.). Plaintiff and appellant Larry Littlejohn is seeking to recover amounts he paid in sales tax reimbursement to Costco Wholesale Membership, Inc. (Costco) on his purchases of Ensure dietary supplement. When the Court first considered this lawsuit, the Court held that Littlejohn was unable to state a claim because he could show neither that the state of California was unjustly enriched by any overpayment of tax on sales of Ensure, nor that the Board of Equalization (Board) ever concluded that refunds were owed on such purchases. Because there has been no legal determination that consumers are entitled to a refund for sales tax reimbursement paid on purchases of Ensure, we again hold that Littlejohn cannot state a cause of action. The trial court's order sustaining the demurrer to Littlejohn's complaint without leave to amend is affirmed. Littlejohn's complaint alleged three causes of action against Costco premised on the charged sales tax reimbursement. Two of them challenged the charges as unlawful business practices proscribed by Business and Professions Code section 17200, et seq. The trial court held that these causes of action were governed by Loeffler v. Target Corp.(2014) 58 Cal.4th 1081 (Loeffler), and sustained Costco's demurrer. The Court agreed. Loefflermade clear that it is for the Board in the first instance to interpret and administer an intensely detailed and fact specific sales tax system governing an enormous universe of transactions. Administrative procedures must be exhausted before the taxpayer may resort to court. Accordingly, the Court rejected Littlejohn's unlawful business practices causes of action because they would have required the court, not the Board, to determine the taxability of Ensure. The record contains four documents that Littlejohn claims demonstrate such a legal determination. They are a legal ruling of the Board's tax counsel that appears in the annotations, a letter from tax counsel to an individual consumer, a letter from the Board to Littlejohn, and a 2013 Tax Information Bulletin published by the Board. All of them contain a statement that sales of Ensure beginning in 2006 are not taxable. Indeed, it appears the Board has not taken action to collect tax on the sales of Ensure products since 2006. That much seems clear and cannot be reasonably disputed. The other documents on which Littlejohn relies provide no better support for his claimed right to sue. For similar reasons that the Court decline to give legal effect to the opinion of counsel, the Court decline to give effect to the March 2013 letter by a Board auditor. The March 13 letter is written in response to an e-mail inquiry by a consumer. It is not advice to a taxpayer, nor does it address particular sales transactions over a specific time. It merely directs the inquiring consumer to address a possible claim of refund with the appropriate retailer. As the Court said in Littlejohn I, even though the Board considers sales of Ensure non-taxable, none of the documents Littlejohn relies upon were issued in response to an inquiry about refunds or address whether tax paid by retailers on sales of Ensure products would be refunded. The judgment is affirmed. A full-text copy of the Cal. App.'s dated August 22, 2019 Opinion is available at https://tinyurl.com/yyeuzwx6 from Leagle.com. CREDIT SUISSE: Court Narrows Claims in E. Halbert Securities Suit ----------------------------------------------------------------- The United States District Court for the Northern District of Alabama, Southern Division, issued a Memorandum Opinion granting in part and denying in part Defendants' Motion to Dismiss in the case captioned ERICH HALBERT, et al., Plaintiffs, v. CREDIT SUISSE AG, et al., Defendants. Civil Action No. 2:18-cv-00615-AKK. (N.D. Ala.). Erich, Sherri, and John Halbert bring this action against Credit Suisse, AG and Janus Index & Calculation Services, LLC for alleged violations of federal and state securities laws and common law causes of action stemming from a market-wide volatility spike. The Halberts claim Credit Suisse sold them high-risk securities in the days leading up to this volatility spike, but failed to disclose that the Defendants intended to facilitate the collapse of these securities by hedging against them, and then profit off their collapse by redeeming the securities at a fraction of their earlier value. The Defendants have moved to dismiss the federal securities claims for failure to sufficiently allege misrepresentation, scienter, and loss causation. They also contend that the state securities law and common law claims fail as a matter of law. The opinion is divided as follows. In Section A, the court, first, finds that the Halberts have adequately alleged standing for their Section 10(b) claims premised on the allegedly false Intraday Indicative Values on February 5, 2018. Second, the court finds that, the Halberts adequately alleged material misstatements or omissions under Section 10(b) premised on the allegedly false Intraday Indicative Values, but not with respect to the alleged omissions in the Offering Documents and, therefore, their Section 11 claims also fail. Third, the court finds that the Halberts have not alleged scienter for their Section 10(b) claims. Because the Halberts' claims fail on the issues of misrepresentation and scienter, the court does not reach the issue of loss causation. Next, in Section B, the court finds that the Halberts have pled violations of Alabama Code Sections 8-6-19(a)(2) and (c), based on the allegedly false Intraday Indicative Values. Finally, in Section C the court finds that the Halberts have pled breach of contract against Credit Suisse and negligent misrepresentation against Janus, and that the rest of their common law claims fail. The Federal Securities Law Claims The Halberts assert securities claims under Section 10(b) of the Exchange Act, and SEC Rule 10b-5, as well as under Section 11 of the Securities Act. Standing under Section 10(b) As an initial matter, the Defendants contend that the Halberts lack standing to assert their Section 10(b) claim with respect to the alleged misrepresentations of the Intraday Indicative Value on February 5, 2018 because they failed to allege that they purchased or sold the XIV ETNs during the one-hour window when Defendants purportedly misrepresented the value. Doc. However, although the Halberts do not specifically allege that they bought and sold XIV ETNs within the one-hour period when the Intraday Indicative Value allegedly failed to update, they do allege that they bought and sold XIV ETNs on February 5 and 6, 2018. The Defendants further contend that the Halberts have merely alleged impermissible holding claims that the allegedly false Intraday Indicative Values on February 5, 2018 induced them to hold, rather than to buy or sell, their XIV ETNs. In ruling on a motion to dismiss, however, the court's review is limited to the allegations in the complaint, incorporated exhibits, central and undisputed extrinsic documents, and judicially-noticed documents and facts. The court cannot, and does not, consider unpleaded allegations in the parties' briefs. Accordingly, at this stage of the proceedings, the Halberts have adequately alleged standing for their Section 10(b) claim premised on the allegedly false Intraday Indicative Values on February 5, 2018. Material Misrepresentations under Section 10(b) and Section 11 To state a claim under Section 11 of the Securities Act, or a misrepresentation claim under Section 10(b) and Rule 10b-5(b) of the Exchange Act, a complaint must allege the misstatement or omission of a material fact. A statement is misleading under the securities laws if in the light of the facts existing at the time of the statement a reasonable investor, in the exercise of due care, would have been misled by it. Alleged Omissions Concerning Hedging and Plan to Collapse and Accelerate the XIV ETNs The Halberts allege that Credit Suisse and Janus made materially misleading statements in the Offering Documents concerning Credit Suisse's anticipated hedging and its conflict of interests with investors in the XIV ETNs. To support this contention, the Halberts quote in their Amended Complaint the allegedly misleading statements from the Offering Documents,5and argue that, under Section 11 and Section 10(b), the quoted statements in the Offering Documents were materially misleading.6 The Halberts maintain the Defendants failed to disclose that they knew Credit Suisse's hedging would inevitably cause the XIV ETNs to collapse during the next volatility spike due to inadequate market liquidity and the number of outstanding XIV ETNs, and that Credit Suisse intended to profit from this collapse by subsequently accelerating and redeeming the XIV ETNs and, thus, had an active conflict of interest with investors in the XIV ETNs. To analyze claims about purported misstatements or omissions, the court must assess the Section 11 claim information as it existed at the time the registration statement became effective or in the case of a Section 10(b) claim, whether a reasonable investor would find the alleged misstatement misleading in the light of the facts existing at the time of the statement. In that respect, here, the Halberts' assertion that Credit Suisse knew its hedging would cause the XIV ETNs to crash during the next volatility spike, due to the size of the XIV ETNs and the inadequate liquidity of the market, is merely speculative, and lacks any of the factual allegations that are required to support such a conjecture. Moreover, where, as here, allegations regarding misleading omissions are made on information and belief, the PSLRA requires, for Section 10(b)(5) claims, that the complaint state with particularity all facts on which that belief is formed. However, the Halberts fail to allege facts indicating what the alleged liquidity issues were, how or why the Defendants were aware of them, or how the Defendants knew that hedging in a market with liquidity issues and 16,275,000 outstanding XIV ETNs would inevitably cause the value of the XIV ETNs to plummet. And, to the extent that such information was public knowledge, Defendants did not have a duty to include forecasts based on a range of historical VIX volatility because historical volatility data and the volatility trends are publicly available. Similarly, the Halberts' allegations that the Defendants knew Credit Suisse intended to profit off the collapse of the XIV ETNs are speculative at best. The allegations appear to be based on a retrospective analysis, i.e. that, because Credit Suisse engaged in hedging activities and the XIV ETNs collapsed, Credit Suisse must have intended, at the time it issued the Offering Documents, to depress the value of the XIV ETNs through hedging in order to declare an Acceleration Event. Such allegations that a defendant knew and should have disclosed that volatility-linked notes would become worthless in two years, for example, are insufficient to sustain a claim and courts have rejected securities claims that were based on a backward-looking assessment that interprets, in the context of later events, the statements that plaintiff has identified as untrue or misleading at the time they were made. In other words, the Halberts have not plausibly alleged that the Defendants knew that they would profit off the Halberts by hedging and accelerating the XIV ETNs during a volatility spike, and have failed to plead a material omission based on a failure to disclose Credit Suisse's alleged plan to profit off the collapse of the XIV ETNs. Scienter under Section 10(b) With respect to each act or omission alleged to violate Section 10(b), a complaint must state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind. Drawing all reasonable inferences in favor of the Halberts, the Halberts allege three distinct Section 10(b) claims against each defendant: (1) misrepresentations in the Offering Documents concerning Credit Suisse's anticipated hedging, its plan to profit by collapsing and accelerating the XIV ETNs, and the accuracy of Intraday Indicative Values, in violation of Rule 10b-5(b) (2) the allegedly false Intraday Indicative Values on February 5, 2018 in violation of Rule 10b-5(b) and (3) the Defendants' fraudulent scheme to manipulate the XIV ETNs' value by hedging and failing to update the Intraday Indicative Value in violation of Rule 10b-5(a) and (c). As to these contentions, the Defendants generally contend that the Halberts have failed to plead scienter under Section 10(b). Therefore, although the Defendants do not separately address the Halberts' scheme liability/market manipulation claims under Rule 10b-5(a) and (c) the court will consider whether the Halberts have alleged scienter for these claims. Finally, because all the claims arise from the same set of facts and allegations and, therefore, an analysis of scienter for each claim requires consideration of the same aggregate of allegations, Credit Suisse The Halberts attempt to plead scienter for their Section 10(b) claims against Credit Suisse by alleging, in part: (1) Credit Suisse had the motive and opportunity to profit by hedging against the XIV ETNs in order to cause an Acceleration Event, and ultimately did profit by doing so (2) Credit Suisse knew that a volatility spike was imminent, and that hedging would cause the XIV ETNs to crash due to insufficient market liquidity and the large number of outstanding XIV ETNs (3) Credit Suisse knew or should have known the Intraday Indicative Values did not reflect the actual value of the XIV ETNs for approximately one hour on February 5, 2018, which made an Acceleration Event more likely. Summary To close, while the Halberts have adequately pleaded false or misleading statements against the Defendants premised on the Intraday Indicative Values on February 5, 2018, they failed to adequately allege material omissions in the Offering Documents and scienter for any of their claims under Section 10(b) of the Exchange Act. In particular, the Halberts' allegations do not give rise to a strong inference of scienter against either Credit Suisse or Janus for their misrepresentation claims under Rule 10b-5(b) or their market manipulation claims under Rule 10b-5(a) and (c). And, the Halberts have failed to adequately plead violations of Section 11 of the Securities Act based on the alleged misrepresentations in the Offering Documents. Therefore, the Defendants' motion is due to be granted as to the federal securities law claims. Alabama Blue Sky Law The Defendants contend that the Halberts also fail to plead a valid claim against Credit Suisse under the Alabama Blue Sky Law, Alabama Code Section 8-6-19. The Halberts allege that Credit Suisse violated Section 8-6-19(a)(2) based on the alleged omissions in the Offering Documents and the allegedly false Intraday Indicative Values. Alternatively, the Halberts allege that Credit Suisse violated Section 8-6-19(c) by materially aiding the unlawful sale of a security within the meaning of Alabama's Blue Sky Law. Alabama Code Section 8-6-19(a)(2) To plead a violation of Section 8-6-19(a)(2), a plaintiff must plausibly allege (1) a sale or an offer to sell a security (2) by means of a false statement or omission (3) of material fact and (4) the ignorance of the buyer as to the untruth or omission. Section 8-6-19 is a strict liability statute: there need be no showing of reckless disregard' for the truth of a representation or that such representations were knowingly made. Credit Suisse contends that, because the alleged misrepresentations are not actionable under Section 11 of the Securities Act or Section 10(b) of the Exchange Act, the Halberts cannot state a claim under Section 8-6-19(a)(2). See Altrust Fin. Servs., Inc. v. Adams, 76 So.3d 228, 236 (Ala. 2011) (quoting Buffo v. State, 415 So.2d 1158, 1161-62 (Ala. 1982)). Moreover, in applying Section 8-6-19(a)(2), the Alabama Supreme Court has explicitly relied on the same standard for materially misleading statements or omissions under Sections 12(a)(2) and 11 of the Securities Act, and Section 10(b) of the Exchange Act. Accordingly, because the same standards for determining materially misleading statements or omissions are applicable under both federal securities law and Section 8-6-19(a)(2), the court finds that the Halberts fail to plead materially misleading statements and omissions relating to Credit Suisse's hedging and the alleged scheme under Section 8-6-19(a)(2) for the same reasons it fails to plead such misrepresentations under Section 11 of the Securities Act and Section 10(b) of the Exchange Act. Alabama Code Section 8-6-19(c) The Halberts also allege, in the alternative, that Credit Suisse violated Section 8-6-19(c) by materially aiding in the unlawful sale of a security. Section 8-16-19(c) imposes secondary liability on certain persons who materially aid in the conduct giving rise to liability under subsection (a) or (b). As discussed, the Halberts have adequately alleged a violation of Section 8-16-19(a)(2) based on the allegedly false Intraday Indicative Values, and, therefore, have alleged a predicate violation under Section 8-6-19(c). Moreover, the Defendants offer no argument as to why the Halberts' allegations are insufficient to plead that Credit Suisse materially aided in the conduct giving rise to liability under Section 8-6-19(a)(2). Thus, the motion to dismiss the 8-6-19(c) claim also fails. State Common Law Claims The Halberts plead that Credit Suisse's alleged failure to update the Intraday Indicative Value was a breach of contract, and that the Defendants' failure to update the Intraday Indicative Value also gives rise to claims for negligence, wantonness, negligent misrepresentation, fraudulent misrepresentation, and fraudulent suppression. Breach of Contract As an initial matter, the court must determine whether the Halberts are correct that the Offering Documents constitute a binding contract between Credit Suisse and the Halberts who purchased the XIV. The basic elements of a contract are an offer and an acceptance, consideration, and mutual assent to the essential terms of the agreement. The Halberts, however, do not identify what they believe were the offer and acceptance in this case. Assuming the Offering Documents constituted the purported offer and the Halberts purchase of the XIV ETNs constituted the purported acceptance, the contract formed would be a unilateral one in which one party makes an offer or promise which invites performance by another, and performance constitutes both acceptance of that offer and consideration. Therefore, the court finds that the Halberts have sufficiently plead mutuality of obligation and the existence of a contractual duty to calculate and disseminate the Intraday Indicative Value. For these reasons, the motion to dismiss the breach of contract claim is due to be denied. Negligence and Wantonness The Halberts allege negligence and wantonness claims against Credit Suisse and Janus based on their alleged failure to update the Intraday Indicative Value on February 5, 2018. Here, the Halberts allege a contractual breach based on Credit Suisse's failure to perform its obligations under the Offering Documents when it did not keep up the Intraday Indicative Value as promised. Basically, drawing all reasonable inferences in their favor, the Halberts allege that Credit Suisse breached the Offering Documents by failing to calculate the Intraday Indicative Value every 15 seconds based on a VIX Futures Index that incorporated real time prices of the relevant VIX futures contracts. Relatedly, with respect to their negligence and wantonness claims, the Halberts allege also that Credit Suisse breached its duty to regularly update the Intraday Indicative Value. However, the Halberts have failed to identify any source of this duty other than the Offering Documents. Thus, because the duties and breaches alleged by the Halberts would not exist but for the contractual relationship between the parties, the proper avenue for seeking redress is a breach of contract claim, not a wantonness or negligence claim. Accordingly, the negligence and wantonness claims against Credit Suisse fail. Misrepresentation and Suppression Claims The Halberts allege negligent and fraudulent misrepresentation claims, and fraudulent suppression claims, against Credit Suisse and Janus. To establish a prima facie case of fraudulent or negligent misrepresentation, a plaintiff must show: (1) that the representation was false (2) that it concerned a material fact (3) that the plaintiff reasonably relied on the false representation and (4) that actual injury resulted from that reliance. The Halberts have alleged negligent misrepresentation claims against Janus based on the allegedly false Intraday Indicative Values on February 5, 2018, but have failed to allege misrepresentation and suppression claims against either Credit Suisse or Janus premised on the alleged omissions in the Offering Documents. The Halberts have failed to plead violations of Section 11 of the Securities Act or Section 10(b) of the Exchange Act. However, the Halberts have adequately plead violations of the Alabama Code Section 8-6-19(a)(2) and (c) against Credit Suisse based on the allegedly false Intraday Indicative Values. Furthermore, the Halberts have adequately plead breach of contract against Credit Suisse and negligent misrepresentation against Janus, but the remainder of their state common law claims fail. The court will issue a separate order consistent with this opinion. A full-text copy of the District Court's dated August 22, 2019 Memorandum Opinion is available at https://tinyurl.com/yxzzhnn2 from Leagle.com. Erich Halbert, Sherri Halbert & John Halbert, Plaintiffs, represented by Cason M. Kirby -- cason@campbellpartnerslaw.com -- CAMPBELL PARTNERS & Stephen D. Wadsworth, CAMPBELL PARTNERS, 505 20th St N, Ste 1600, Birmingham, AL 35203-4622 Credit Suisse AG, Defendant, represented by David G. Januszewski -- djanuszewski@cahill.com -- CAHILL GORDON & REINDEL LLP, pro hac vice, Herbert S. Washer -- hwasher@cahill.com -- CAHILL GORDON & REINDEL LLP, pro hac vice, Richard Jon Davis -- rdavis@maynardcooper.com -- MAYNARD COOPER & GALE, Sesi V. Garimella -- sgarimella@cahill.com -- CAHILL GORDON & REINDEL LLP, pro hac vice & Sheila C. Ramesh -- sramesh@cahill.com -- CAHILL GORDON & REINDEL LLP, pro hac vice. Janus Index and Calculation Services LLC, Defendant, represented by Adam P. Plant, BATTLE & WINN LLP, 2901 2nd Ave S, Ste 220, Birmingham, AL 35233, Gillian Groarke Burns -- gillian.burns@cwt.com -- Cadwalader, Wickersham & Taft LLP, pro hac vice, Jared Stanisci -- jared.stanisci@cwt.com -- CADWALADER, WICKERSHAM & TAFT, LLP, pro hac vice, Jason M. Halper -- jason.halper@cwt.com -- CADWALADER WICKERSHAM & TAFT, pro hac vice, Robert E. Battle, BATTLE & WINN LLP, The Martin Biscuit Building, 2901 2nd Avenue South, Suite 220, Birmingham, AL 35233 & Richard Jon Davis -- rdavis@maynardcooper.com -- MAYNARD COOPER & GALE. CUSHMAN & WAKEFIELD: Underpays Appraisers, Bursey Alleges --------------------------------------------------------- PATRICK BURSEY, individually and on behalf of all others similarly situated, Plaintiff v. CUSHMAN & WAKEFIELD, INC.; and CUSMAN & WAKEFIELD OF COLORADO, INC., Defendants, Case No. 1:19-cv-02344 (D. Colo., Aug. 16, 2019) is an action against the Defendant's failure to pay the Plaintiff and the class overtime compensation for hours worked in excess of 40 hours per week. The Plaintiff Bursey was employed by the Defendants as appraiser. Cushman & Wakefield, Inc. provides real estate services. The Company represents clients in buying, selling, financing, leasing, managing, and valuing assets. Cushman & Wakefield also provide strategic planning and research, portfolio analysis, site selection, and space location services. [BN] The Plaintiff is represented by: John Neuman, Esq. Beatriz Sosa-Morris, Esq. SOSA-MORRIS NEUMAN, PLLC 5612 Chaucer Drive Houston, TX 77005 Telephone: (281) 885-8630 Facsimile: (281) 885-8813 E-mail: jneuman@smnlawfirm.com bsosamorris@smnlawfirm.com D & A SERVICES: Spera Sues over Collection Letter, Unfair Interest ------------------------------------------------------------------ A class action complaint has been filed against D&A Services, LLC et al. for alleged violations of the Fair Debt Collection Practices Act. The case is captioned CHRIS J. SPERA, individually and on behalf of a class of similarly situated individuals, Plaintiff, v. D & A SERVICES, LLC., doing business as D & A Services; THE BUREAUS, INC. and BUREAUS INVESTMENT GROUP PORTFOLIO NO 15 LLC, and BUREAUS INVESTMENT GROUP III, LLC, Defendants, Case No. 1:19-cv-04873 (N.D. Ill., July 19, 2019). Among other things, Plaintiff alleges that D&A Services' debt collection letter failed to identify the date and amount of purported charge-off of the subject debt. He also claims that the Defendants improperly added interest to the subject debt. Moreover, this consumer credit-related lawsuit is assigned to Hon. Judge Andrea R. Wood. D & A Services, LLC is a debt collection agency with a principal place of business at 1400 E. Touhy Ave, Suite G2, Des Plaines, Illinois. [BN] The Plaintiff is represented by: James C. Vlahakis, Esq. SULAIMAN LAW GROUP, LTD. 2500 South Highland Avenue, Suite 200 Lombard, IL 60148 Telephone: (630) 575-8181 E-mail: jvlahakis@sulaimanlaw.com D. & B. CORP: Breached 2013 Settlement, Jenks Claims ---------------------------------------------------- A class action complaint has been filed against D. & B. Corp., d/b/a The Golden Banana, and Mark Filtranti for civil contempt of court. The case is captioned KAYLA L. JENKS, on behalf of herself and all others similarly situated, Plaintiffs, v. D. & B. CORP., d/b/a THE GOLDEN BANANA, Mark Filtranti, and Its Other Corporate Presidents, Defendants, Case No. 1977CV01042A (Mass. Cmmw., July 22, 2019). Plaintiffs bring this action pursuant to Rule 65.3 of the Massachusetts Rules of Civil Procedure. On July 3, 2013, the Court approved a class action settlement agreement which called for Defendants to pay $900,000 to class members. The settlement agreement states that Defendants will make annual payments varying between $100,000 and $200,000 over the course of six years. The fourth of these payments was $200,000 and was due on Sept. 1, 2018. On Aug. 29, 2018, Defendants requested to revise the payment schedule and make payments of $100,000 every nine months, and plaintiffs accepted this revision. Under the revised payment schedule, Defendants owe $100,000 on July 1, 2019. On June 29, 2019 Plaintiffs emailed counsel for Defendants to remind him of the July 1 deadline, then again Plaintiffs reminded counsel of the July 1 payment on July 5, and 9, 2019. Although Defendant's counsel promised three times to find out when the payment would be made and alert Plaintiffs, he has never done so. To this point, Defendants have not made the required payment, or contacted Plaintiffs to explain when the payment will be made. By refusing to comply with the Court's July 3, 2013 Order, Defendants' actions constitute contempt of Court. D. & B. Corp. is a corporation that operates Golden Banana Gentlemen's Club in Peabody, Massachusetts. Mark Filtranti is the President and owner of D & B Corp. The Plaintiff is represented by: Tod A. Cochran, Esq. PYLE ROME EHRENBERG PC 2 Liberty Square, 10th Floor Boston, MA 02109 Telephone: (617) 367-7200 E-mail: tcochran@pylerome.com DESMOND FOODS: Suggs Seeks Overtime Pay --------------------------------------- A class action complaint has been filed against Desmond Foods LP for alleged violations of the California Labor Code and the California Business and Professions Code. The case is captioned Tyson Suggs and on behalf of all others similarly situated vs. Desmond Foods LP, Case No. 34-2019-00260891-CU-OE-GDS (Cal. Super., Sacramento Cty., July 19, 2019). In this complaint, Plaintiff alleges that the Defendant failed to pay premium and regular rate of wages, failed to pay overtime compensation, failed to provide meal breaks, failed to authorize and permit rest breaks, failed to timely pay final wage upon termination, failed to provide accurate itemized wage statements, and engaged in unfair business practices. Desmond Foods LP is a California Limited Partnership with its principal place of business in Sacramento California. [BN] The Plaintiff is represented by: Kane Moon, Esq. MOON & YANG, APC 1055 W. Seventh St. Suite 1880 Los Angeles, CA 90017 Telephone: (213) 232-3128 Facsimile: (213) 232-3125 DIAMOND RESORTS: Spurling et al. Seek to Recover Unpaid Wages ------------------------------------------------------------- A class action complaint has been filed against Diamond Resorts International et al. for alleged violations of the Hawaii Revised Statutes Section 388-2. The case is captioned DOMINIQUE SPURLING, DONOVAN CHANG, and FLORENCE MIGUEL, Individually and on behalf of all others similarly situated, Plaintiff, v. DIAMOND RESORTS INTERNATIONAL; DOE DEFENDANTS 1-50, Defendants, Case No. 19-1-1158-08-JPC (Hawaii Cir., July 23, 2019). Plaintiffs allege that the Defendants failed to pay and failed to timely pay them and the members of the putative class all of their earned wages as required under Hawaii Revised Statutes Section 388-2. Diamond Resorts International, a limited liability company, has conducted business in Honolulu, Hawaii and has owned and operated the following hotels in the State of Hawaii: The Modern Honolulu (The Modern), Ka'anapali Beach Club (the Ka'anapali), The Point at Poipu (The Point). [BN] The Plaintiffs are represented by: James J. Bickerton, Esq. Bridget G. Morgan-Bickerton, Esq. BICKERTON LAW GROUP 745 Fort Street, Suite 801 Honolulu, Hawaii 96813 Telephone: (808) 599-3811 Facsimile: (808) 694-3090 DLING MEDICAL AESTHETIC: Wang Sues over Labor Law Violations ------------------------------------------------------------ A class action complaint has been filed against Dling Medical Aesthetic Center, Inc. for alleged violations of the California Labor Code and the California Business & Professions Code. The case is captioned HSIN-YU WANG, an individual, Plaintiff, vs. DLING MEDICAL AESTHETIC CENTER, INC., a California Corporation, XIAOQIN "KELLY" LING, an individual, and DOES 1 to 80, inclusive, Defendants, Case No. 19STCV25708 (Cal. Super., Los Angeles Cty., July 23, 2019). Among other things, Plaintiff alleges that the Defendants violated the Labor Code by failing to pay minimum, straight, overtime wages, failing to reimburse necessary expenses, and failing to provide meal and rest periods. Dling Medical Aesthetic Center, Inc. is a business entity located in Los Angeles County, State of California, operating as a medical spa at 9525 E. Las Tunas Dr., Temple City, CA, 91780. Xiaoqin “Kelly” Ling an officer, director, owner, and/or managing agent of Dling. [BN] The Plaintiff is represented by: Steven D. Kramar, Esq. H. Mark Madnick, Esq. KRAMAR MADNICK, LLP 16133 Ventura Boulevard, Suite 585 Encino, CA 91436-2405 Telephone: (818) 380-3500 Facsimile: (818) 380-3505 E-mail: SDKramar@KramarMadnick.com HMMadnick@KramarMadnick.com DOTERRA INTERNATIONAL: Jones Files ADA Class Suit in New York ------------------------------------------------------------- Doterra International, LLC is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Kahlimah Jones, individually and as the representative of a class of similarly situated persons, Plaintiff v. Doterra International, LLC, Defendant, Case No. 1:19-cv-04923 (E.D. N.Y., Aug. 28, 2019). Doterra International, LLC is a global developer and manufacturer of aromatherapy and essential oils.[BN] The Plaintiff is represented by: Dan Shaked, Esq. Shaked Law Group, P.C. 14 Harwood Court, Suite 415 Scarsdale, NY 10583 Tel: (917) 373-9128 Email: shakedlawgroup@gmail.com DYCK O'NEAL INC: Cheeks Sues over FDCPA Violations -------------------------------------------------- A class action complaint has been filed against Dyck O'Neal, Inc. for alleged violations of the Fair Debt Collection Practices Act (FDCPA). The case is captioned Nakia Cheeks, individually, and on behalf of all similarly situated consumers, Plaintiff, v. Dyck O'Neal, Inc., Defendant, Case No. 8:19-cv-02148-GJH (D. Md., July 22, 2019). This consumer credit-related lawsuit is assigned to Hon. Judge Jarrod Hazel. Founded in August 1988, Dyck O'Neal, Inc. operates as a debt collector. The company serves banking, mortgage insurance, legal, and real estate industries. [BN] The Plaintiff is represented by: Kathy Lynn Ducassou, Esq. 2383 Sundew Terrace Baltimore, MD 21209 Telephone: (410) 624-5524 Facsimile: (410) 624-5524 E-mail: ducassou@aol.com FACEBOOK, INC: Adkins Seeks to Certify Two Classes -------------------------------------------------- In the class action lawsuit styled as STEPHEN ADKINS, an individual and Michigan resident, on behalf of himself and all others similarly situated, the Plaintiffs, vs. FACEBOOK, INC., the Defendant, Case No. 3:18-cv-05982-WHA (N.D. Cal.), the Plaintiff will move the Court on October 31, 2019, for an order: 1. certifying, under Rule 23(b)(2), their claims for declaratory relief on behalf of the Declaratory Relief Class: "all Facebook users whose personally identifiable information (PII) was compromised in the data breach announced by Facebook on September 28, 2018. The proposed Class Representative for the Declaratory Relief Class is Stephen Adkins."; 2. certifying, under Rule 23(b)(3), the Damages Class with the same definition of Declaratory Relief Class. The Plaintiff seeks to damages for the diminished value of his and class members' PII, and for the costs of credit monitoring. The proposed Class Representative for the Damages Class is Stephen Adkins; and 3. appointing Andrew N. Friedman of Cohen Milstein Sellers & Toll PLLC, John A. Yanchunis of Morgan & Morgan Complex Litigation Group, and Ariana H. Tadler of Tadler Law LLP as Class Counsel. Excluded from all Classes are Defendants, any entity in which Facebook or its successors Whether Facebook's security is still inadequate to protect user PII.[CC] Attorneys for the Plaintiff are: Andrew N. Friedman, Esq. COHEN MILSTEIN SELLERS & TOLL PLLC 1100 New York Ave. NW, Fifth Floor Washington, DC 20005 Telephone: (202) 408-4600 Facsimile: (202) 408-4699 E-mail: afriedman@cohenmilstein.com - and - John A. Yanchunis, Esq. MORGAN & MORGAN COMPLEX LITIGATION GROUP 201 N. Franklin St., 7th Floor Tampa, FL 33602 Telephone: 813/223-5505 Facsmile: 813/2223-5402 E-mail: jyanchunis@ForThe People.com - and - Ariana J. Tadler, Esq. TADLER LAW, LLP atadler@TadlerLaw.com One Penn Plaza New York, NY 10119 Telephone: (212) 946-9453 Facsimile: (212) 273-4375 FIELDWORK, INC: "Damasco" Bid for Class Certification Filed ----------------------------------------------------------- In the class action lawsuit styled as DIXIE PLUMBING SPECIALTIES, INC., a Georgia corporation, individually and as the representative of a class of similarly-situated persons, the Plaintiff, v. FIELDWORK, INC., a Delaware corporation, and FIELDWORK CHICAGO-SCHAUMBURG, INC., FIELDWORK CHICAGO, INC., and FIELDWORK CHICAGO DOWNTOWN, INC., Illinois corporations, the Defendants, Case No. 1:19-cv-05821 (N.D. Ill.), the Plaintiff asks the Court for an order: 1. certifying a "Damasco" motion for class certification of: "all persons who (1) on or after four years prior to the filing of this action, (2) were sent telephone facsimile messages of material advertising the commercial availability or quality of any property, goods, or services by or on behalf of Defendant, (3) from whom Defendant did not obtain "prior express invitation or permission" to send fax advertisements, or (4) with whom Defendant did not have an established business relationship, and (5) where the fax advertisements did not include an opt-out notice compliant with 47 C.F.R. section 64.1200(a)(4)(iii)"; 2. appointing Plaintiff as the class representative; and 3. appointing Plaintiff's attorneys as class counsel. The Plaintiff will file its memorandum after Rule 23 discovery has been completed. The parties need to meet and confer and propose a Rule 23 discovery schedule to this Court and Plaintiff respectfully requests a status conference with the Court as soon as practicable. The Defendants sent the Plaintiff and others a standardized form advertisement. The Plaintiff anticipates that the proposed class definition will change after discovery defines the precise contours of the class and the advertisements that were sent. Plaintiff requests leave to submit a brief and other evidence in support of this motion after discovery about the class elements has been completed. The Plaintiff submits its Motion for Class Certification pursuant to Damasco v. Clearwire Corp., 662 F.3d 891, 896 (7th Cir. 2011) (holding plaintiffs "can move to certify the class at the same time that they file their complaint" and "the pendency of that motion protects a putative class from attempts to buy off the named plaintiffs"), overruled in part by Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015) (overruling Damasco “to the extent [it] hold[s] that a defendant's offer of full compensation moots the litigation or otherwise ends the Article III case or controversy" but not commenting on effect of a "placeholder" motion if plaintiff's individual claim becomes moot for some other reason); Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (Jan. 20, 2016) (holding “an unaccepted settlement offer or offer of judgment does not moot a plaintiff's case," and "a would-be class representative with a live claim of her own must be accorded a fair opportunity to show that certification is warranted").[CC] Attorneys for the Plaintiff are: Ryan M. Kelly, Esq. ANDERSON + WANCA 3701 Algonquin Road, Suite 500 Rolling Meadows, IL 60008 Telephone: 847/368-1500 Facsimile: 847/368-1501 E-mail: rkelly@andersonwanca.com FLINT, MI: Mich. App. Flips Dismissal of Contaminated Water Suit ---------------------------------------------------------------- The Court of Appeals of Michigan issued an Opinion reversing the District Court's judgment grating Defendant's Motion for Summary Judgment in the case captioned DORIS COLLINS, and all others similarly situated, ROBIN PLEASANT, JASON PHINSEE, LEE MCDONALD, and CONLEY COLLISION, INC., Plaintiffs-Appellants, v. CITY OF FLINT, Defendant-Appellee. No. 345203. (Mich. App.). In this class-action lawsuit arising out of the Flint water crisis, plaintiffs Doris Collins, on behalf of herself and all others similarly situated, along with Robin Pleasant, Jason Phinsee, Lee McDonald, and Conley Collision, Inc., appeal the trial court's order granting summary disposition to defendant, the city of Flint. The city of Flint changed their water source from the city of Detroit to drawing water from the Flint River. The discovery that the water provided to Flint residents from the Flint River was dangerous resulted in the filing of thousands of lawsuits. The instant lawsuit was filed in 2016, alleging breach of contract, unjust enrichment, a breach of the implied warranties of fitness, a violation of the Michigan Consumer Protection Act, and conversion. On appeal, plaintiffs argue that the trial court erred when it granted summary disposition under MCR 2.116(C)(8) on their unjust enrichment claim. STANDARD OF REVIEW A motion for summary disposition under MCR 2.116(C)(8) tests the legal sufficiency of a claim by the pleadings alone. In reviewing a trial court's decision on a (C)(8) motion, this Court accepts as true all factual allegations supporting the claim and reasonable inferences that may be drawn from them. Unjust enrichment is an equitable doctrine. Unjust enrichment of a person occurs when he has and retains money or benefits which in justice and equity belong to another. In order to sustain a claim of unjust enrichment, a plaintiff must establish (1) the receipt of a benefit by the defendant from the plaintiff and (2) an inequity resulting to the plaintiff because of the retention of the benefit by the defendant. In this case, plaintiffs argue that they have pleaded a valid unjust enrichment claim because defendant received an inequitable benefit by accepting residents' water payments in exchange for contaminated and undrinkable water. Stated differently, plaintiffs claim defendant has inequitably profited by accepting the water payments at the expense of its residents. Defendant, however, sets forth two main arguments: (1) an unjust enrichment claim is barred on grounds of governmental immunity and (2) even if it is not barred on such grounds, summary disposition is still appropriate because (a) there is no implied contract to serve as the basis for an unjust enrichment claim (b) plaintiffs' unjust enrichment claim fails because there is no genuine issue of fact that defendant fulfilled its obligation to provide water service and (c) plaintiffs' unjust enrichment claim fails because they have an adequate remedy at law and did not exhaust their administrative remedies. In light of our Supreme Court's decision in Genesee Co, the Court agrees that the trial court erred when it granted summary disposition under MCR 2.116(C)(8) in favor of defendant. GOVERNMENTAL IMMUNITY The Court first addresses defendant's argument that plaintiffs' unjust enrichment claim fails because they have not pleaded in avoidance of governmental immunity. Our Supreme Court recently answered this very question. In Genesee Co, the defendant, Genesee County, served as the administrator for certain employee health insurance plans. After conducting an audit, the insurer, Blue Cross Blue Shield of Michigan, determined that the payment of the county's collective premiums resulted in a significant overpayment, which was then refunded back to Genesee County. Based on this rule, the Court held that the plaintiff's unjust enrichment claim was not barred on grounds of governmental immunity because the GTLA does not provide governmental immunity for those seeking compensatory damages for breach of contract and claims seeking a remedy other than compensatory damages. Because the plaintiff was seeking a remedy other than compensatory damages, i.e., restitution, his action did not sound in tort or contract, and his claim survived summary disposition. In this case, plaintiffs' claim for unjust enrichment is not barred by governmental immunity. As in Genesee Co, plaintiffs have alleged a claim that is neither grounded in tort nor contract in which the remedy sought is compensatory damages. Rather, plaintiffs seek restitution for their payments for water services. Therefore, defendant is not entitled to governmental immunity. UNJUST ENRICHMENT Plaintiffs argue that the trial court ultimately erred when it held that they failed to state a claim upon which relief can be granted. In particular, plaintiffs argue that the trial court erred because it misapplied Borg-Warner to the facts of this case when ruling on the unjust enrichment claim. While The Court agrees with plaintiffs regarding the trial court's application of Borg-Warner to this case, The Court further concludes that in light of Genesee Co,the question of whether the unjust enrichment claim involved an implied contract in law versus an implied contract in fact under Borg-Warner is no longer relevant. In applying Borg-Warner, the trial court held that delivery of water in exchange for payment of the water bills is not sufficient consideration to create an implied contract necessary to bring a claim for unjust enrichment. In fact, Borg-Warner did not involve unjust enrichment or any other equitable doctrine, but instead acknowledged that governmental tort immunity does not apply to contract claims, and decided whether the elements for an implied contract were satisfied. Although some contract claims involve equitable remedies, contract damages constitute a remedy in law. Our Supreme Court in Borg-Warner simply did not consider the equitable doctrine of unjust enrichment as plaintiffs invoked it in this case. Regardless, the decision in Genesee Co makes clear that an unjust enrichment claim is independent of a cause of action based in contract. Therefore, the trial court erred when it granted defendant's motion for summary disposition based on Borg-Warner. Defendant, however, argues two alternative bases for affirming the trial court's decision. First, defendant asserts that plaintiffs' unjust enrichment claim fails because it provided water services to plaintiffs as required under the applicable ordinances. Second, defendant claims that plaintiffs had an adequate remedy at law and failed to exhaust their administrative remedies. These arguments fail. Defendant's first argument is essentially that plaintiffs have not set forth a valid claim for unjust enrichment because defendant provided water service as required under Flint's city ordinance, and plaintiffs were obligated to pay for the water service received. Therefore, plaintiffs have not shown that defendant retained a benefit at plaintiffs' expense. This argument fails for obvious reasons. Unjust enrichment is grounded in the idea that a party shall not be allowed to profit or enrich himself inequitably at another's expense. Plaintiffs have stated a valid claim for unjust enrichment because they allege to have paid for water that was poisonous. It is clear that defendant retained a benefit in keeping the payments for water that proved to be undrinkable. Plaintiffs also allege to have incurred a huge expense in not only being provided contaminated water, but having to pay for that contaminated water. Thus, plaintiffs have stated a valid unjust enrichment claim upon which relief could be granted. Defendant's second argument is that, because all residents are entitled by ordinance to a mandatory hearing to dispute a water bill that they believe is unusually large, plaintiffs failed to exhaust their administrative remedies. The Court disagrees. Defendant's argument implicates the doctrine of primary jurisdiction. Defendant invokes the exhaustion doctrine not in connection to an administrative agency, but rather with its own internal procedures, whereby its city administrator, or a person that officer designates for the purpose, acts as referee when determining the validity of a utility billing dispute. Defendant points out that plaintiffs do not assert in their complaint that they had sought relief through the mechanism set forth in the Flint city ordinances, but neither does defendant assert that it asked the trial court to dismiss the action below, or at least stay proceedings so that possible administrative avenues could be pursued. Therefore, defendant's argument fails. The trial court thus erred when it granted summary disposition under MCR 2.116(C)(8) in favor of defendant because plaintiffs have stated a claim upon which relief may be granted. A full-text copy of the Mich. App.'s dated August 22, 2019 Order is available at https://tinyurl.com/y68pot8y from Leagle.com. LOYST FLETCHER, JR., 718 Beach St, Flint, Michigan 48502, BRENDA R. WILLIAMS -- Brenda.Halliburton-Williams@abhms.org -- for DORIS COLLINS/ALL OTHERS SIMILARLY SITUATED, Plaintiff-Appellant. FORD MOTOR: Court Denies Class Certification Bid in C. Van Suit --------------------------------------------------------------- The United States District Court for the Northern District of Illinois, Eastern Division, issued a Memorandum Opinion and Order denying Plaintiffs’ Motion for Class Certification in the case captioned CHRISTIE VAN, et al., Plaintiffs, v. FORD MOTOR COMPANY, Defendant. Case No. 14-cv-8708. (N.D. Ill.). The Plaintiffs are women who currently are employed or who were employed at one of the two Chicago-area Ford Motor Company facilities, the Chicago Assembly Plant and the Chicago Stamping Plant. Plaintiffs seek to represent a class of all present and former female employees who worked at the Assembly Plant or the Stamping Plant. Plaintiffs and other putative class members have been subjected to a pervasively sexual, hostile, intimidating and abusive work environment at Defendant's Plants. Female employees at the Plants have been forced to work in an environment containing sexually explicit graffiti, carvings, and drawings. Plaintiffs propose that the class be defined as: All women working at the Ford Chicago Assembly Plant and Chicago Stamping Plant from January 2012 to present. The parties do not dispute that Plaintiffs' proposed class satisfies Rule 23(a)'s numerosity requirement or Rule 23's implicit ascertainability requirement. The Defendant argues, however, that Plaintiffs fail to satisfy Rule 23(a)'s commonality, typicality, and adequacy requirements. Defendant further argues that Plaintiffs cannot satisfy the requirements of any Rule 23(b) subsection. Commonality under Rule 23(a)(2) Plaintiffs contend that they have met their burden of establishing commonality by identifying significant proof that Defendant operated under a general policy of discrimination, which is an acceptable method of establishing commonality. Plaintiff asserts that these common questions and issues regarding the extensive and far-reaching practice of sexual harassment and retaliation at the Plants are at the core of all the Title VII claims held by the proposed class in this case. However, in their opening brief, Plaintiffs fail to connect these purported questions to the elements of their claims. As noted in Defendant's response brief, the Court specifically directed that should Plaintiffs again move for class certification Plaintiffs should address to what extent the elements of their claims can be decided on a class-wide basis. The Court therefore turns to an analysis of the elements of the sexual harassment claims that Plaintiffs seek to bring. Pattern-and-Practice Analysis Plaintiffs must prove that discrimination was the company's standard operating procedure the regular rather than the unusual practice. This method of proving discrimination often comes up in the context of hiring practices. For example, if an employer has an established policy of making employment decisions with racial animus in violation of Title VII, it is likely that any specific employment decision also violates Title VII, and if a particular decision was not discriminatory, the employer is in the best position to show why. Thus, as noted by Plaintiffs, the liability phase in a pattern-and-practice case does not require showing that each individual member of the class was a victim of the employer's discriminatory policy, since proof of the pattern or practice supports an inference that any particular employment decision during the period in which the discriminatory policy was in force was made pursuant to that policy. However, it is not clear to the Court that such a claim can be brought in the context of this case. Plaintiffs claim that Defendant has maintained a policy of failing to take prompt remedial action in response to credible allegations of harassment. Specifically, Plaintiffs contend that Defendant as a rule has allowed known harassers to remain in the workplace, failed to discipline harassers despite the harassment being witnessed by supervisors, threatened female complainants with termination or otherwise reprimanded female complainants, assigned less desirable tasks to women who did not submit to sexual advances, among other conduct. Although Plaintiffs cite to allegations in the second amended complaint to support these assertions, which are insufficient to carry Defendant's burden of satisfying Rule 23, Plaintiffs renewed motion for class certification elsewhere identifies anecdotal evidence that certain of Defendant's employees have engaged in such conduct. Even assuming these facts to be true, however, a finding that an employer had a pattern or practice of tolerating sexual harassment in violation of Title VII does not necessarily establish that an individual claimant was exposed to harassment or that the harassment an individual claimant suffered violates Title VII. The Court therefore concludes that Plaintiffs cannot establish liability on their individual sexual hostile work environment claims based on a pattern-and-practice theory. Instead, the Court will look to whether any of the elements of Plaintiffs' sexual hostile work environment claims can be addressed on a class-wide basis. Sexual Hostile Work Environment To establish a hostile work environment claim, a plaintiff must show that she was (1) subjected to unwelcome sexual conduct, advances, or requests (2) because of her sex (3) that were severe or pervasive enough to create a hostile work environment and (4) that there is a basis for employer liability. The Plaintiffs argue that there is a common question with respect to whether Plaintiffs are women and therefore part of a protected class because this can be established by answering a single common question of whether women make up the proposed class. However, even if the proposed class definition limits the class to women, putative class members still would need to show that they fall within the scope of the class definition. Moreover, it is well established that superficial common questions like whether each class member shares a characteristic or suffered a violation of the same provision of law are not enough to establish commonality. The Plaintiffs also argue that there are common questions with respect to whether harassment was severe or pervasive enough to establish a hostile work environment (i.e., to affect a term, condition, or privilege of employment. As noted by Plaintiffs, this element requires that Plaintiffs establish that they were subjected to sufficiently severe and pervasive conditions that were both subjectively and objectively hostile. To qualify as hostile, the work environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so. Plaintiffs contend that it is obvious that the objective hostility component can be addressed as a common question because the reasonableness standard can be applied to the conduct and the environmental factors that make up the hostile work environment. Plaintiffs further contend that questions such as whether sexual batteries and assaults, requests for sexual favors, stories of sexual conquests, constantly staring and requiring women to bend over, and threats of sexual assault were commonplace, are subject to common proof. However, because the objective hostility component still depends on the specific conduct to which each named Plaintiff and putative class member was exposed, Plaintiffs' arguments miss the mark. Although Plaintiffs have presented the Court with evidence indicating that named Plaintiffs and putative class members were exposed to a wide-range of conduct that certainly would support hostile work environment claims, the evidence does not suggest that named Plaintiffs and putative class members all were exposed to the same conduct. To the contrary, the evidence indicates that named Plaintiffs and putative class members were exposed to a wide range of purported misconduct from exposure to sexual graffiti, to quid pro quo sexual propositions, to rape . The Plaintiffs similarly argue that they can establish on a class-wise basis that they and putative class members were exposed to harassment on the basis of sex. However, if named Plaintiffs and putative class members cannot establish that they even were exposed to the same conduct on a class-wide basis, they cannot address on a class-wide basis whether the differing conduct to which they were exposed was based on sex. The Plaintiffs have not established that an actionable corporate policy existed. Plaintiffs have not presented statistical evidence on that point. And Plaintiffs' anecdotal evidence is insufficient to establish an actionable policy of failing to take prompt remedial action in response to credible allegations of improper conduct, especially in light of the fact that Defendant did discipline salaried employees for sexual harassment. The Court therefore concludes that Plaintiffs have not met their burden of satisfying Rule 23(a)'s commonality requirement. Typicality under Rule 23(a)(3) Rule 23(a)(3) requires that the claims or defenses of the representative parties are typical of the claims or defenses of the class. Claims of class representatives and class members are typical if they arise from the same practice or course of conduct and are based on the same legal theory. Plaintiffs recognize that each class member may have witnessed and/or been subjected to different styles of sexual harassment, depending on the individual perpetrator and their own reaction. Still, Plaintiffs argue that minor variations in their experiences cannot defeat typicality. However, as discussed above, the wide range of allegations at issue in this case cannot accurately be characterized as minor variations. With such wide-ranging allegations, named Plaintiffs' claims cannot be said to have the same essential characteristics as the claims of the class at large. Named Plaintiffs' and putative class members' claims depend on exposure to differing conduct, by different employees of Defendant, in different areas of the Plants, on different shifts, and with different resolutions. Under such circumstances, named Plaintiffs cannot be expected to vigorously litigate issues relating to these crucial aspects of all putative class members' claims, making denial of class certification for lack of typicality appropriate. For example, with no named Plaintiffs from the MP&L department at the Assembly Plant, it is not clear to the Court why any named Plaintiff would have the incentive to establish the extent to which improper conduct was occurring in that department. By attempting to tie together the claims of all named Plaintiffs and putative class members by using an objective hostile work environment analysis, Plaintiffs undermine the claims of those who were exposed to the most egregious misconduct. As the Court has observed at prior hearings in this case, if the Plaintiffs who experienced the most severe misconduct identified in the allegations and deposition testimony in this case can convince a jury that Defendant was aware of that misconduct and did nothing to stop and/or punish it, they may be entitled to a large verdict far larger than any reasonable verdict based on proven allegations of exposure to sexist graffiti or exposure to isolated comments that did not bother them. To date, Plaintiffs have not made a showing that any two individuals much less the class they seek to certify experienced the same misconduct in the same way. Perhaps they can with further effort. But for all of these reasons, the Court concludes that Plaintiffs have not at this juncture satisfied Rule 23(a)'s typicality requirement. Adequacy of Representation under Rule 23(a)(4) Defendant argues that Plaintiffs fail to satisfy Rule 23(a)(4)'s adequacy requirement because (1) the class is permeated by conflicts of interest (2) Plaintiffs' pursuit of this case in the face of the EEOC Conciliation Agreement and their attempted interreference with that agreement render them inadequate class representatives and (3) Plaintiffs' counsel is not adequate. The Court addresses each of these arguments in turn. Conflicts of Interest Defendant argues that conflicts of interest among named Plaintiffs and putative class members bars class certification. Specifically, Defendant argues that Plaintiffs cannot satisfy the adequacy requirement because certain named Plaintiffs' and putative class members also are accused of engaging in the misconduct at issue in this case. Due process requires that absent class members be adequately represented in order to be bound by a court's judgment. Furthermore, Illinois Rule of Professional Conduct 1.7 expressly prohibits undertaking a representation of one client that is "directly adverse to another client. Accordingly, courts have found inadequate representation where plaintiffs sought to represent a class that included those who allegedly participated in the wrongful conduct. In this case, on the other hand, Defendant has identified evidence that named Plaintiffs and putative class members contributed to the sexually hostile work environment that Plaintiffs challenge. Plaintiff Van accuses her then supervisor and co-Plaintiff Cephani Miller of making inappropriate comments. Specifically, Ms. Van testified that Ms. Miller retaliated against her and asked Ms. Van whether she thought everyone was sexually harassing her because she's so sexy. Ms. Van in turn was accused of engaging in misconduct by putative class member Shanetta Myles. Specifically, Ms. Myles indicated in an interview that Ms. Van commented on Ms. Myles's weight and body parts. According to Ms. Myles, Ms. Van also stated give me some of those titties. Similarly, putative class member Rosetta Smith submitted an affidavit indicating that Maria Price openly discussed her sexual preferences in the workplace. Ms. Price also would greet male employees with a hug and often would blow kisses at them. Ms. Price testified that Carmel Gregory was interested in a romantic relationship with Ms. Price and would constantly call Ms. Price to the office upstairs and tell her how pretty she was and stop giving Ms. Gregory the babydoll eyes and just to get to know her. Indeed, in Ms. Price's EEOC Charge, Ms. Price listed Ms. Gregory as one of her sexual harassers. Plaintiffs also note that an employee of Defendant testified that Labor Relations representative Natalie Dahringer told him that Plaintiff Van would need to drop her case before she would be moved out of her location where she was being harassed. Although Ms. Dahringer denies this, there is conflicting testimony on the issue. Plaintiff Helen Allen-Amos accused Monique Johnson of acting inappropriately by always grabbing on men, sitting on their laps, and squeezing their butts when she hugged the men. Defendant's response brief outlines numerous other examples of allegations of misconduct against women working at the Plants. Plaintiffs propose that the Court also could eliminate conflicts of interest by certifying a subclass of women who have been accused of engaging in sexual harassment and/or contributing to a sexually hostile work environment. However, such a definition would be impermissible vague. Avoiding vagueness is important `because a court needs to be able to identify who will receive notice, who will share in any recovery, and who will be bound by a judgment. The Court has no way of knowing at this time whether any named Plaintiff or putative class member will be accused of engaging in misconduct. In addition to the vagueness problem, conflicts would still remain within the group of class members accused of misconduct. Specifically, that group still would include women who allege that they were harassed by other women within the sub-class. For example, Ms. Van, who has been accused of misconduct, presumably would be in that sub-class with Ms. Miller, against whom Ms. Van has made allegations of misconduct. Plaintiffs' proposed subclasses do not eliminate the conflicts identified by Defendant. The Court therefore concludes that Plaintiffs fail to satisfy Rule 23(a)'s adequacy requirement and denies Plaintiffs' motion for class certification on that basis. EEOC Conciliation Agreement Defendant argues that Plaintiffs' pursuit of this case in the face of the 2017 EEOC Conciliation Agreement and their attempted interference with that agreement render them inadequate class representatives. Rule 23(a)(4)'s adequacy requirement is not met where class representatives fail to act in the best interests of the unnamed members of the class and do not keep the interests of the entire class at the forefront. As noted by Plaintiffs, many claimants had their claims denied through the EEOC conciliation process. To the extent that these putative class members have viable claims, it cannot be said that these putative class members already have adequate remedies in place. Defendant also argues that Plaintiffs and Plaintiffs' counsel have proven their inadequacy by opposing the interests of putative class members first by filing an emergency motion to prevent their co-workers from even receiving the Claims Forms that would enable them to benefit from the Agreement that the EEOC negotiated on their behalf, and later by filing a motion to stay the distribution of award notices to those whom the Panel identified as eligible for an award. Plaintiffs have identified reasons for having concerns regarding the EEOC claims process. Although the Court previously declined to interfere with the EEOC claims process, noting that there was no reason why putative class members who decided to file claims forms should not be permitted to determine for themselves whether they want to settle their claims as part of the conciliation process or pursue other avenues of relief, the Court is not persuaded that Plaintiffs' efforts relating to the EEOC claims process demonstrate a failure to act in the best interests of putative class members. Adequacy of Counsel The Court denied Plaintiffs' initial motion for class certification based on Plaintiffs' failure to establish the adequacy of class counsel. Since Plaintiffs filed their initial motion for class certification, however, Plaintiffs have added attorneys from the law firm of Romanucci & Blandin LLC as class counsel. Although the qualifications of the attorneys from Romanucci & Blandin LLC are not disputed, the Court continues to have concerns regarding the adequacy of counsel as structured. To begin, Plaintiffs indicate that Mr. Hunt will continue to control pivotal aspects of this case. Specifically, Plaintiffs indicate that Mr. Hunt will continue his lead role in client communication, motion practice, and arguments with the company of Mr. Romanucci. Although attorneys from Romanucci & Blandin LLC will act as co-counsel, Mr. Hunt had co-counsel in Warnell, Mr. Hunt's prior federal class-action lawsuit in which he was sanctioned and which resulted in numerous malpractice lawsuits. The Court therefore is not satisfied that the addition of Romanucci & Blandin LLC eliminates the adequacy concerns the Court outlined in its prior decision denying Plaintiffs' initial motion for class certification. The Court notes that Plaintiffs' counsel also fail to raise arguments available to Plaintiffs. For example, Defendant argues that Plaintiffs could not certify any issue for class treatment under Rule 23(c)(4) because that rule still requires that the requirements of Rule 23(a) and (b) be met. The Court agrees with Defendant's characterization of the law with respect to the Rule 23(a) requirements. Rule 23(c)(4) does not exempt class representatives from the threshold requirements of Rule 23(a). Plaintiffs fail entirely to address that authority, even though it could be helpful to their case for certification under Rule 23(c)(4). Instead, Plaintiffs simply respond that they have satisfied the requirements of Rule 23(a) and (b). In sum, the Court still has concerns regarding the adequacy of class counsel. Although these concerns about counsel would not alone be sufficient to deny certification on adequacy grounds, coupled with the significant conflicts of interest identified above, the Court concludes that Plaintiffs have not satisfied Rule 23(a)'s adequacy requirement. Rule 23(b) Requirements Rule 23(b)(3) To certify a Rule 23(b)(3) class, Plaintiffs must demonstrate predominance and superiority. It requires that the questions of law or fact common to class members predominate over any questions affecting only individual members. The predominance inquiry tests whether the proposed class is sufficiently cohesive to warrant adjudication by representation. Plaintiffs satisfy predominance requirement only if they can show that common questions represent a significant aspect of a case and can be resolved for all members of a class in a single adjudication. Here, the Court agrees that Plaintiffs fail to meet their burden of establishing that common issues predominate. As discussed above, Plaintiffs cannot proceed on a pattern and practice theory for their damages claims. Furthermore, Plaintiffs have not identified any common issues in this case. Even if Plaintiffs could proceed on a pattern and practice theory or could otherwise establish employer liability on a class-wide basis, the Court still would conclude that common issues do not predominate, as highly-individualized hearings still would be necessary for each named Plaintiff and each putative class member. Plaintiffs argue that to the extent that individual issues remain they can be handled through streamlined mechanisms" such as affidavits and proper auditing procedures. As the district court in that case noted, the individual questions had straightforward binary answers and the parties could utilize a form affidavit, with accompanying audit procedures, to address those questions. The individual questions here are much more complex. Even assuming that Plaintiffs could establish a basis for employer liability on a class-wide basis, hundreds if not thousands of individual hearings still would be necessary to resolve the remaining elements of Plaintiffs' hostile work environment claims. The Court therefore concludes that common issues do not predominate. Turning to the second prong of Rule 23(b)(3), which is satisfied when a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. A class action is the superior method for managing litigation if no realistic alternative exists. The Defendant argues that Plaintiffs here have two superior methods for evaluating adjudicating class claims the EEOC conciliation process and individual damages suits. Plaintiffs respond that the EEOC conciliation process is inadequate. Specifically, Plaintiffs contend that (1) the awards given were lower than the tier amounts identified in the agreement, (2) the conciliation process resulted in the denial of more than one-third of the claims submitted by women, and (3) the claims process was mechanical and inflexible. With respect to the first argument, although the awards given were lower than the tier amounts identified $10,000, $20,000, or $30,000, depending on the seriousness of the claim), the awards still were consistent with the terms of the 2017 Conciliation Agreement. Furthermore, claimants were informed of the amount of their awards before they decided whether they would accept their respective awards. The fact that the award amounts are lower than the presumptive tier amounts does not itself make the EEOC conciliation process inadequate. The Plaintiffs' third argument, that the claims process was mechanical and inflexible because it failed to adequately distinguish claimants based on the relative severity of the conduct they experienced, likewise is unpersuasive. In making this argument, Plaintiffs cite to the fact that a putative class member who submitted a claim describing egregious sexual harassment only was offered an award of $24,086.80. Specifically, this putative class member's claim form indicates that she was harassed and assaulted by numerous employees, including a manager. By way of example, the putative class member indicates that an area manager threatened her, hit her, choked her, and forced her into a sexual relationship. In another example, the putative class member indicates that she inappropriately was touched while on Defendant's premises at least weekly from 2015 to early 2017. The putative class member goes on to allege additional harassment by numerous employees of Defendant. The Court agrees that the alleged conduct identified by this putative class member is appalling. However, for such severe claims and there may be many such claims in the putative class here individual Title VII lawsuits are a very viable option, with significant money damages and attorneys' fees providing the incentive to litigate. And those who entered the conciliation process were under no obligation to take the money offered if they felt they could do better in litigation. That leaves Plaintiffs' second argument, that the conciliation process resulted in the denial of more than one-third of the claims submitted by women. Without more information regarding why these claims were denied, the Court is unable fully to evaluate this argument. In other words, Plaintiffs have not shown that the damages available to any of the putative class members whose claims were denied as part of the EEOC conciliation process were too insignificant to provide them the incentive to pursue their claims individually. The Plaintiffs have not met their burden of demonstrating that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy as required to certify a class under Rule 23(b)(3). The Court denies the Plaintiffs' motion for class certification. A full-text copy of the District Court's dated August 22, 2019 Memorandum Opinion and Order is available at https://tinyurl.com/yyu54fyd from Leagle.com. Helen Allen, Charmella Leviege, Maria Price, Christie Van, Jacqueline Barron, Theresa Bosan, Keturah Carter, Michelle Dahn, Tonya Exum, Jeannette Gardner, Arlene Goforth, Christine Harris, Orissa Henry, Lawanda Jordan, Danielle Kudirka, Terri Lewis-Bledsoe, Constance Madison, Cephani Miller, Miyoshi Morris, Stephanie Szot, Shirley Thomas-Moore, Rose Thomas, Toni Williams, Bernadette Clyburn, Angela Glenn, Ladwyna Hoover, Latricia Shanklin, Antoinette Sullivan, Derricka Thomas & Nichea Walls, Plaintiffs, represented by Keith L. Hunt, Keith L. Hunt & Associates, P.C., 55 W Monroe St Ste 3600, Chicago, IL, 60603-5026, Antonio Maurizio Romanucci -- aromanucci@rblaw.net -- Romanucci & Blandin, LLC, Bhavani Keeran Raveendran -- braveendran@rblaw.net -- Romanucci & Blandin LLC, Bradley Edwin Faber, Hunt & Associates, P.C., 55 W Monroe St Ste 3600, Chicago, IL, 60603-5026, Bryce Thomas Hensley -- bhensley@rblaw.net -- Romanucci & Blandin, LLC, Nicolette A. Ward - nward@rblaw.net -- Romanucci & Blandin, LLC & Stephan David Blandin - sblandin@rblaw.net -- Romanucci & Blandin. Shranda Campbell, Plaintiff, represented by Christopher Cooper, Law Office of Christopher Cooper, Inc., 79 W Monroe St., Ste 1213, Chicago, IL 60603 Ford Motor Company, Defendant, represented by Kathleen M. Nemechek, Berkowitz Oliver LLP, Timothy Scott Millman, Berkowitz Oliver LLP, 2600 Grand Boulevard, Suite 1200, Kansas City, MO 64108, Andrea Ruth Lucas -- alucas@gibsondunn.com -- Gibson, Dunn & Crutcher LLP, pro hac vice, Curtiss Scott Schreiber -- schreiber@dbmslaw.com -- Donohue Brown Mathewson & Smyth, Eugene Scalia, Gibson, Dunn & Crutcher LLP, pro hac vice, Jocelyn A. Villanueva, Berkowitz Oliver LLP, 2600 Grand Boulevard, Suite 1200, Kansas City, MO 64108, Karen Kies DeGrand -- karen.degrand@dbmslaw.com -- Donohue, Brown, Mathewson & Smyth LLC, Katherine V.A. Smith -- ksmith@gibsondunn.com -- Gibson, Dunn & Crutcher LLP, pro hac vice, Mark Howard Boyle -- mark.boyle@dbmslaw.com -- Donohue, Brown, Mathewson & Smyth, Meagan Pearl Vanderweele, Donohue Brown Mathewson & Smyth LLC, 140 S Dearborn St. Ste. 800, Chicago, Illinois, Molly T. Senger -- msenger@gibsondunn.com -- Gibson, Dunn & Crutcher LLP, pro hac vice, Naima Lillian Farrell -- nfarrell@gibsondunn.com -- Gibson, Dunn & Crutcher LLP, pro hac vice, Nicholas Lee Divita, Berkowitz Oliver LLP & Stephen M. Bledsoe, Berkowitz Oliver Williams Shaw & Eisenbrandt LLP, 2600 Grand Boulevard, Suite 1200, Kansas City, MO 64108 Brittney Carlisle, Respondent, represented by Keith L. Hunt, Keith L. Hunt & Associates, P.C. MS. DAWN FARON, Intervenor, represented by Christopher Cooper, Law Office of Christopher Cooper, Inc. FRIENDLY'S MANUFACTURING: Fields Files Fraud Class Suit in New York ------------------------------------------------------------------- A class action lawsuit has been filed against Friendly's Manufacturing and Retail, LLC. The case is styled as Miranda Fields and Jane Doe, individually and on behalf of all others similarly situated, Plaintiffs v. Friendly's Manufacturing and Retail, LLC, Defendant, Case No. 1:19-cv-04924 (E.D. N.Y., Aug. 28, 2019). The case type is stated as Fraud or Truth-In-Lending. Friendly's Manufacturing and Retail, LLC (trade name Friendly's) is in the Family Restaurant Chain business.[BN] The Plaintiff is represented by: Spencer I. Sheehan, Esq. Sheehan & Associates, P.C. 505 Northern Boulevard, Suite 311 Great Neck, NY 11021 Tel: (516) 303-0552 Fax: (516) 234-7800 Email: Spencer@spencersheehan.com FRONTLINE ASSET: Placeholder Bid for Class Certification Filed -------------------------------------------------------------- In the class action lawsuit captioned as CYNTHIA JOHNSON, Individually and on Behalf of All Others Similarly Situated, the Plaintiff, v. FRONTLINE ASSET STRATEGY, LLC, the Defendant, Case No. 2:19-cv-01252-PP (E.D. Wisc.), the Plaintiff asks the Court for an order certifying a class, appointing the Plaintiff as class representative, and appointing Ademi & O'Reilly, LLP as Class Counsel, and for such other and further relief as the Court may deem appropriate. The Plaintiff further asks that the Court stay this class certification motion until an amended motion for class certification is filed, and that the Court grant the parties relief from the local rules' automatic briefing schedule and requirement that Plaintiffs file a brief and supporting documents in support of this motion. To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion. Damasco v. Clearwire Corp., 662 F.3d 891, 896 (7th Cir. 2011), overruled on other grounds, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015) ("The pendency of that motion [for class certification] protects a putative class from attempts to buy off the named plaintiffs."). While the Seventh Circuit has held that the specific procedure described in Campbell-Ewald cannot force the individual settlement of a class representative's claims, the same decision cautions that other methods may prevent a plaintiff from representing a class. Fulton Dental, LLC v. Bisco, Inc., 860 F.3d 541, 545-46 (7th Cir. 2017).[CC] Attorneys for the Plaintiffs are: Mark A. Eldridge, Esq. John D. Blythin, Esq. Jesse Fruchter, Esq. Ben J. Slatky, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482-8000 Facsimile: (414) 482-8001 E-mail: jblythin@ademilaw.com meldridge@ademilaw.com jfruchter@ademilaw.com bslatky@ademilaw.com GENERAL ELECTRIC: Court Issues Confidential Info Production Order ----------------------------------------------------------------- The United States District Court for the District of Massachusetts issued an Order on Production and Exchange of Confidential Information in the case captioned In re GE ERISA LITIGATION. This Document Relates To: ALL ACTIONS. Master File No. 1:17-cv-12123-IT. (D. Mass.). This Order shall govern the handling, production, or exchange of any Material by any Party to this Action, and the handling, production or exchange of any Material by any non-Party that is either a Producing Party or Receiving Party. A full-text copy of the District Court's dated August 22, 2019 Opinion is available at https://tinyurl.com/y29ursx5 from Leagle.com. Brian Sullivan, Individually and on behalf of a class of all persons simlarly situated and on behald of the GE RETIREMENT SAVINGS PLAN, Plaintiff, represented by Lee Squitieri, Squitieri & Fearon, LLP, 32 E 57th St Fl 12, New York, New York 10022, pro hac vice, Theodore M. Hess-Mahan -- thess-mahan@hutchingsbarsamian.com -- Hutchings, Barsamian, Cross and Mandelcorn, LLP, Jacob A. Walker -- jake@blockesq.com -- Block & Leviton LLP, James S. Notis, Gardy & Notis, LLP, 440 Sylvan Avenue, Suite 110 Englewood Cliffs, New Jersey 07632, pro hac vice, Jason M. Leviton -jason@blockesq.com -- Block & Leviton LLP, pro hac vice, Jeffrey C. Block -- jeff@blockesq.com -- Block & Leviton LLP & Mark C. Gardy, Gardy & Notis, LLP, 440 Sylvan Avenue, Suite 110 Englewood Cliffs, New Jersey 07632, pro hac vice. General Electric Company, GE Asset Management Incorporated, Dmitri Stockton, Ralph Richard Layman, Rochelle Lazarus, Matthew Simpson, Francisco DSouza, Robert Lane, James Tisch, Matthew Zakrzewski, Marjin Dekkers, Mary Schapiro, Susan Hockfield, John J. Brennan, Benefit Plans Investment Committee, Michael Cosgrove, W. Geoffrey Beattie, GE Pension Board, Andrea Jung, David Wiederecht, James Mulva, Jeffrey Immelt, Don Torey, John Flannery, GEAM Committee, George Bicher, Jessica Holscott, James Rohr, Greg Hartch, Jeanne LaPorta, Paul Colonna, GE Board of Directors, Roger Penske, Matt Cribbins, Keith Sherin, Sam Nunn, Alan Lafley, James Cash, John Samuels, Carol Anderson, Douglas Warner, Kelly Lafnitzegger, Brian Worrell, Susan Peters, Jamie Miller, Jan Hauser, Ann Fudge, Robert Swieringa, Sharon Daley, John Lynch, Tracie Winbigler, Jeff Bornstein, Puneet Mahajan & Trevor Schauenberg, Defendants, represented by Alison V. Douglass -adouglass@goodwinlaw.com -- Goodwin Procter, LLP, Jaime A. Santos -- jsantos@goodwinlaw.com -- Goodwin Procter LLP & James O. Fleckner -- jfleckner@goodwinlaw.com -- Goodwin Procter, LLP. Dan Torey, Matthew Wiederecht & John Walker, Defendants, represented by James O. Fleckner, Goodwin Procter, LLP. GOLUB CAPITAL: Bushansky Suit Over Fifth Ave. Merger Underway ------------------------------------------------------------- Golub Capital BDC, Inc. said in its Form 8-K filing with the U.S. Securities and Exchange Commission filed on August 26, 2019, 2019, that the company continues to defend a class action suit entitled, Bushansky v. Golub Capital BDC, Inc., et al. On November 27, 2018, Golub Capital BDC, Inc., a Delaware corporation ("GBDC"), entered into an Agreement and Plan of Merger (as amended, the "Merger Agreement") with Golub Capital Investment Corporation, a Maryland corporation ("GCIC"), Fifth Ave Subsidiary Inc., a Maryland corporation and wholly owned subsidiary of GBDC ("Merger Sub"), GC Advisors, LLC, a Delaware limited liability company and investment adviser to each of GBDC and GCIC ("GC Advisors"), and, for certain limited purposes, Golub Capital LLC. The Merger Agreement provides that, subject to the conditions set forth in the Merger Agreement, Merger Sub will merge with and into GCIC, with GCIC continuing as the surviving company and as a wholly-owned subsidiary of GBDC (the "Merger"), and, immediately thereafter, GCIC will merge with and into GBDC, with GBDC continuing as the surviving company (together with the Merger, the "Mergers"). On August 12, 2019, Mr. Stephen Bushansky filed a putative shareholder class action against GBDC and the individual members of GBDC's Board of Directors (collectively, the "GBDC Board") in the Supreme Court of the State of New York, County of New York (the "Court"). The case is captioned Bushansky v. Golub Capital BDC, Inc., et al., Index. No. 654576 (the "Merger Litigation"). Mr. Bushansky's lawsuit alleges breach of fiduciary duty claims against GBDC and the GBDC Board in connection with the solicitation of stockholder approval of the Mergers contemplated by the Merger Agreement. Mr. Bushansky alleges, among other things, that GBDC's definitive proxy statement included in the prospectus filed with the Securities and Exchange Commission pursuant to Rule 497 of the Securities Act of 1933, as amended, on July 15, 2019 (the "Proxy Statement") omitted certain information that he claims is material. Mr. Bushansky requests that the Court enjoin the transactions contemplated by the Merger Agreement unless the GBDC Board causes GBDC to make additional disclosures. Mr. Bushansky requests attorneys' fees and damages in an unspecified amount. On August 23, 2019, Mr. Bushansky requested accelerated briefing for the entry of a preliminary injunction to require GBDC to make additional disclosures prior to conducting a shareholder vote on the Mergers by filing a proposed order to show cause. The Court has not approved the request for an order to show cause, and the defendants have not yet answered or otherwise responded to the complaints in the foregoing actions. Golub Capital BDC, Inc., incorporated on November 9, 2009, is an externally managed, non-diversified, closed-end, management investment company. The Company's investment objective is to generate current income and capital appreciation by investing primarily in senior secured and one stop loans of the United States middle-market companies. It may also selectively invest in second lien and subordinated loans of, and warrants and minority equity securities in the United States middle-market companies. The company is based in New York, New York. HAIN CELESTIAL: Stockholders' Consolidated Class Suit Still Stayed ------------------------------------------------------------------ The Hain Celestial Group, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on August 29, 2019, for the fiscal year ended June 30, 2019, that the stockholders' consolidated class action suit remains stayed. On April 19, 2017 and April 26, 2017, two class action and stockholder derivative complaints were filed in the Eastern District of New York against the Board of Directors and certain officers of the Company under the captions Silva v. Simon, et al. (the "Silva Complaint") and Barnes v. Simon, et al. (the "Barnes Complaint"), respectively. Both the Silva Complaint and the Barnes Complaint allege violation of securities law, breach of fiduciary duty, waste of corporate assets and unjust enrichment. On May 23, 2017, an additional stockholder filed a complaint under seal in the Eastern District of New York against the Board of Directors and certain officers of the Company. The complaint alleged that the Company's directors and certain officers made materially false and misleading statements in press releases and SEC filings regarding the Company's business, prospects and financial results. The complaint also alleged that the Company violated its by-laws and Delaware law by failing to hold its 2016 Annual Stockholders Meeting and includes claims for breach of fiduciary duty, unjust enrichment and corporate waste. On August 9, 2017, the Court granted an order to unseal this case and reveal Gary Merenstein as the plaintiff (the "Merenstein Complaint"). On August 10, 2017, the court granted the parties stipulation to consolidate the Barnes Complaint, the Silva Complaint and the Merenstein Complaint under the caption In re The Hain Celestial Group, Inc. Stockholder Class and Derivative Litigation (the "Consolidated Stockholder Class and Derivative Action") and to appoint Robbins Arroyo LLP and Scott+Scott as Co-Lead Counsel, with the Law Offices of Thomas G. Amon as Liaison Counsel for Plaintiffs. On September 14, 2017, a related complaint was filed under the caption Oliver v. Berke, et al. (the "Oliver Complaint"), and on October 6, 2017, the Oliver Complaint was consolidated with the Consolidated Stockholder Class and Derivative Action. The Plaintiffs filed their consolidated amended complaint under seal on October 26, 2017. On December 20, 2017, the parties agreed to stay Defendants' time to answer, move, or otherwise respond to the consolidated amended complaint through and including 30 days after a decision was rendered on the motion to dismiss the Amended Complaint in the consolidated Consolidated Securities Action. On March 29, 2019, the Court in the Consolidated Securities Action granted Defendants' motion, dismissing the Amended Complaint in its entirety, without prejudice to replead. Co-Lead Plaintiffs in the Consolidated Securities Actions filed a second amended complaint on May 6, 2019. The parties to the Consolidated Stockholder Class and Derivative Action agreed to continue the stay of Defendants' time to answer, move, or otherwise respond to the consolidated amended complaint. The stay is continued through 30 days after the Court rules on the motion to dismiss the Second Amended Complaint in the Consolidated Securities Action. The Hain Celestial Group, Inc. manufactures, markets, distributes, and sells organic and natural products. The company operates in seven segments: the United States, United Kingdom, Tilda, Ella's Kitchen UK, Canada, Europe, and Cultivate. The Hain Celestial Group, Inc. was founded in 1993 and is headquartered in Lake Success, New York. HECLA MINING: Faces 2 Securities Class Suits in SDNY ---------------------------------------------------- Hecla Mining Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 8, 2019, for the quarterly period ended June 30, 2019, that the company is defending against two class action suits in the U.S. District Court for the Southern District of New York. On May 24, 2019, a purported Hecla stockholder filed a putative class action lawsuit in U.S. District Court for the Southern District of New York against Hecla and certain of its executive officers, one of whom is also a director. The complaint, purportedly brought on behalf of all purchasers of Hecla common stock from March 19, 2018, through and including May 8, 2019, asserts claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder and seeks, among other things, damages and costs and expenses. Specifically, the complaint alleges that Hecla, under the authority and control of the individual defendants, made certain false and misleading statements and allegedly omitted certain material information regarding Hecla's Nevada Operations unit. The complaint alleges that these actions artificially inflated the market price of Hecla common stock during the class period, thus purportedly harming investors. A second suit was filed on June 19, 2019, alleging virtually identical claims. Hecla Mining said, "We cannot predict the outcome of these lawsuits or estimate damages if plaintiffs were to prevail. We believe that these claims are without merit and intend to defend them vigorously." Hecla Mining Company, together with its subsidiaries, discovers, acquires, develops, and produces precious and base metal properties worldwide. The company offers lead, zinc, and bulk flotation concentrates to custom smelters and brokers; and unrefined gold and silver bullion bars to precious metals traders. Hecla Mining Company was founded in 1891 and is headquartered in Coeur d'Alene, Idaho. HERTZ CORPORATION: Conditional Class Certification Sought --------------------------------------------------------- In the class action lawsuit styled as BAMIDELE AIYEKUSIBE, MISCHELE HIGGINSON, AND SHANTAL BROWN-WINN, individually and on behalf of all others similarly situated, the Plaintiffs, vs. THE HERTZ CORPORATION and DTG OPERATIONS, INC., the Defendants, Case No. 2:18-CV-0816-UA-MRM (M.D. Fla.), the Parties ask the Court to enter an Order: 1. conditionally certifying a collective action under 29 U.S.C. section 216(b): "all persons who worked for Defendants The Hertz Corporation and DTG Operations, Inc. in the positions of Function Manager or Location Manager, at any time from July 1, 2017 to the present" 2. reserving Defendants a right to file a motion for decertification of the conditionally certified class; 3. adopting a Stipulation providing that: a. Within 21 days of the entry of the Court's Order adopting this Stipulation, Defendants shall produce to a mutually agreeable Notice Administrator and Plaintiff's counsel a list with the names, last known physical addresses, telephone numbers, and dates of employment for all individuals who worked for Defendants The Hertz Corporation and DTG Operations, Inc. in the positions of Function Manager or Location Manager, at any time from July 1, 2017 to the present. b. Plaintiffs' counsel agrees to the following conditions regarding the list: (1) Plaintiffs'counsel will not contact anyone on the list during the notice period -- only the Notice Administrator may do so; (2) Plaintiffs' counsel will treat the list as confidential and as "attorneys'eyes only"; and (3) Plaintiffs' counsel agrees to destroy all copies of the list within 14 days of the conclusion of this case and the exhaustion of any appeals, and will notify Defendants' counsel of doing so. c. The Parties shall refrain from initiating contact with any individuals disclosed by Defendants pursuant to this Stipulation and the Order on this Stipulation for reasons related to this action; except for as provided for in this Order, upon leave of the Court, or after a Consent to Join has been filed for such individual. d. Within 30 days of the Court's issuance of an Order on this Stipulation, the Plaintiffs'counsel will take reasonable actions to facilitate the Notice Administrator issuing initial Notice via U.S. Mail to all individuals whose contact information was provided by Defendants pursuant to this Stipulation and the Order on this Stipulation. Such Notice shall be in the form of the Notice, and include the parties agreed upon Consent to Join form. The Notice will not be provided to any individual who has previously filed a Consent to Join in this case, or who files a Consent to Join within 25 days of entry of the Order on this Stipulation. e. Within 30 days of sending the initial Notice, the Notice Administrator shall be permitted to issue a "reminder" Notice that is identical in all respects to the initial Notice, with a blind copy to Defendants' counsel. The "reminder” Notice need not be provided to any individual who has filed a Consent to Join. f. Plaintiffs' counsel may not post the Notice to any firm website. g. The Notice Administrator may create a website for the purposes of posting the identical Notice and Consent to Joint Form, and links or incorporated system which may allow for electronic signing and collection of the Consent to Join form. The website shall have no other content. Alternatively the Notice Administrator may post the notice and content on its own website in duplication of the notice and consent form and with links or instructions for electronically signing and submitting the consent to join form. h. Plaintiffs' counsel shall endeavor to file with the Court any Consent to Join forms received from opt-in Plaintiffs within one week of receipt. Unless the Parties permit late filings, or good cause can be shown for why consent was not provided by the deadline, all Consent to Join forms must be postmarked or facsimile time-stamped no later than the 60th day after the date of mailing of the first Notice by Plaintiffs' counsel.[CC] Attorneys for the Plaintiffs are: Mitchell L. Feldman, Esq. FELDMAN LEGAL GROUP 6940 W. Linebaugh Avenue, Suite 101 Tampa, FL 33625 Telephone: (813) 639-9366 Facsimile: (813) 639-9376 E-mail: MLF@feldmanlegal.us kimp@feldmanlegal.us Attorneys for Hertz and DTG Operations, Inc. are: John E. Phillips, Esq. Reed L. Russell, Esq. Erin L. Malone, Esq. PHELPS DUNBAR LLP 100 South Ashley Drive, Suite 1900 Tampa, FL 33602-5311 Telephone: (813) 472-7865 Facsimile: (813) 472-7570 E-mail: john.phillips@phelps.com reed.russell@phelps.com erin.malone@phelps.com HERTZ CORPORATION: Court Narrows Claims in Bradley Suit ------------------------------------------------------- The United States District Court for the Southern District of Illinois issued an Order granting in part and denying in part Defendant's Motion for Summary Judgment in the case captioned EMMA BRADLEY, on behalf of herself and all others similarly situated, Plaintiff, v. THE HERTZ CORPORATION, Defendant. Case No. 3:15-CV-652-NJR-RJD. (S.D. Ill.). Plaintiff Emma Bradley, a Missouri citizen, filed this putative class action against Hertz alleging that she and a class of consumers who rented vehicles from Hertz were compelled by Hertz to pay improper, deceptive, unfair and unethical fees. The Missouri Merchandising Practices Act The MMPA is a consumer protection statute created to supplement the common law definition of fraud and to preserve fundamental honesty, fair play and right dealings in public transactions. To succeed on a cause of action under the MMPA, a plaintiff must prove that: (1) she purchased or leased merchandise (2) the merchandise was for personal, family, or household purposes (3) she suffered an ascertainable loss of money and (4) the loss was the result of an unlawful act, as defined by the statute. Misrepresentation Claims (Count I and IV) Hertz argues it is entitled to summary judgment on Bradley's misrepresentation claims for two reasons. First, Bradley admitted that Hertz never misrepresented anything to her. Second, Bradley cannot show that any alleged misrepresentations in the website descriptions caused her an ascertainable loss when she never saw the descriptions she claims are deceiving. As a preliminary matter, the Court disagrees with Hertz's argument that the fee names must have led her to book the reservation with Hertz. The MMPA does not have a reliance requirement that is, a consumer need not prove that she relied on the unfair act in deciding to purchase or lease the merchandise. Instead, the MMPA requires a causal connection only between the unfair or deceptive merchandising practice and the plaintiff's ascertainable loss. In other words, the unlawful practice must have caused Bradley a loss, but it need not have caused Bradley to make a purchase. Nevertheless, the Court finds that both of Bradley's misrepresentation claims fail as a matter of law, because she cannot prove that any misrepresentation caused her a loss. Bradley testified that she never received or saw a document from Hertz that was deceiving or misrepresented the facts with respect to either the Energy Surcharge or the VLCR. In fact, the only evidence in the record indicating Hertz ever harmed Bradley is her testimony that the charges on her receipt were inaccurate because the fees were higher than they should have been not that the names or descriptions of the fees were factually inaccurate or misleading. Because Bradley admitted that Hertz has never misrepresented anything to her, Counts I and IV must fail. Even if Bradley had not made these admissions in her deposition, her claims, at least with regard to the website descriptions, fail for another reason: Bradley could not have suffered an ascertainable loss when she admits she has never to this day viewed the alleged misrepresentations on Hertz's website. The Court agrees with Judge Sykes in her dissent that nothing more is needed than an allegation that the plaintiff viewed the defendant's website, which contained the alleged misrepresentations at the motion to dismiss stage. At the summary judgment stage, however, Bradley has the burden of proof of demonstrating the essential elements of her case. Here, she has failed to do so. Because Bradley never read the website descriptions, she cannot prove any causal connection between the alleged misrepresentations and any loss she suffered. Accordingly, summary judgment is granted to Hertz on Counts I and IV. Omission Claims (Counts II and V) Hertz next argues that it is entitled to summary judgment on Bradley's claims that Hertz omitted material facts related to the fees. With regard to the Energy Surcharge, Bradley alleges that Hertz failed to inform consumers that it: was imposing the Energy Surcharge even though energy costs were declining; based the Energy Surcharge on projected 2008 costs without reviewing them after the fact and discovering the projections failed to come to fruition; included non-energy related costs of replacement tires and water utilities; kept the Energy Surcharge in place even after becoming aware of economic projections indicating 2009 fuel costs were expected to decline drastically. With regard to the VLCR, Bradley claims Hertz failed to inform consumers that: only 12 percent of the VLCR actually recovers licensing costs; even considering all costs the VLCR does recover, it generally results in an overcharge; because the VLCR is charged as a percentage of the daily rate, it does not provide a fair allocation of Hertz's costs among its customers; the fee was different for different cars even though the licensing expense was the same; the way the fee was calculated reflected the limitations of Hertz's computer system; and the fee is not based on the percentage of licensing expense attributable to the consumer's rental Hertz asserts that these alleged omissions are just another way to say that Hertz misrepresented the truth. Furthermore, Hertz asserts, Bradley has failed to show that the omissions were material when there is no evidence she would have found it important to know how Hertz calculates its fees when deciding whether to rent a vehicle from Hertz. Finally, Hertz contends that Bradley has not shown that any alleged omissions caused her a loss when she never saw the statements with the alleged omissions. In response, Bradley argues it is irrelevant whether there is evidence that she would have found it important to know how Hertz calculates its fees when deciding whether to rent a car from the company. Rather, the Court should consider whether there is any evidence that a reasonable consumer would find a fact important to consider in deciding whether to rent from Hertz. Here, that evidence exists in the form of her expert's testimony that a consumer would be more willing to choose Hertz than another rental company because of Hertz's terms and explanations. Despite Bradley's arguments to the contrary, the Court finds that her omission claims, which only relate to the website descriptions, fail as a matter of law because she never read the website descriptions in the first place. Bradley is correct that the Court should use a reasonable consumer standard in determining whether an omitted fact would be important to the purchasing decision, but while the reasonable consumer standard is relevant to whether a practice is unlawful under the MMPA, it is not relevant to whether there was an ascertainable loss to the plaintiff. Here, Bradley never viewed the website descriptions that contained the alleged omissions, so she cannot prove that, but for the omissions, she would not have sustained a loss. Just as with her misrepresentation claims, Bradley cannot prove she suffered an ascertainable loss as a result of Hertz's omissions. Accordingly, Hertz is entitled to summary judgment on Counts II and V. Unfair Practices Claims (Counts III and VI) Lastly, Hertz argues that Bradley's unfair practices claims in Counts III and VI fail as a matter of law because she is essentially relabeling her misrepresentation and omission claims as unfair practices. Because she cannot show causation with regard to those claims, Hertz argues, her unfair practices claims should also fail. Bradley, on the other hand, argues that her unfair practices claims relate to the actual miscalculation of the fees, not Hertz's representations regarding what the fees pay for. For example, Bradley alleges that Hertz: based its calculation of the Energy Surcharge on projections of costs that did not come to fruition; With regard to the VLCR, Bradley claims Hertz engaged in unfair practices in that: 88 percent of the costs Hertz included in the VLCR were not costs it incurred for licensing and registering its vehicles; Hertz persistently overcharges for those costs and does not reimburse customers for the overcharges; and Hertz unfairly and unethically sets the VLCR as a percentage of its daily rates rather than a flat fee, resulting in an inequitable allocation of costs among consumers. Although Hertz couches Bradley's unfair practices claims as mere restatements of her misrepresentation claims, the Court is not convinced. As pleaded, the alleged unfair practices are independent acts that a jury could find to be unlawful under the MMPA. The unfair practices are not relying on the same baseline allegation that Hertz misled consumers by hiding information. Of course, there is still a causation requirement. Bradley must be able to prove that Hertz's unfair practices caused her to suffer an ascertainable loss. In the Third Amended Complaint, Bradley claims that, as a result of Hertz's acts as described above, she and the class she seeks to represent suffered an ascertainable loss when they paid more than they should have for both the Energy Surcharge and the VLCR (See Doc. 148). Hertz has neither argued the merits of this allegation nor presented any evidence demonstrating that this claim ultimately would fail as a matter of law. Accordingly, the Court declines to grant summary judgment on Bradley's unfair practices claims in Counts III and VI. The Court grants in part and denies in part the Motion for Summary Judgment filed by Defendant The Hertz Corporation. Counts I, II, IV, and V are dismissed with prejudice as to named Plaintiff Emma Bradley. A full-text copy of the District Court's dated August 22, 2019 Memorandum and Order is available at https://tinyurl.com/yyr47tej from Leagle.com. Emma Bradley, on behalf of themselves and all others similarly situated, Plaintiff, represented by Anthony S. Bruning, Bruning Law Firm, Anthony S. Bruning, Jr., Bruning Law Firm, 555 Washington Ave, Saint Louis, MO, 63101-1249 -- Kevin P. Green -- kevin@ghalaw.com -- Goldenberg Heller & Antognoli PC, Mark C. Goldenberg -- mark@ghalaw.com -- Goldenberg Heller & Antognoli PC, Richard S. Cornfeld, Law Office of Richard S. Cornfeld, 1010 Market St # 1605, Saint Louis, MO, 63101, Thomas P. Rosenfeld -- tom@ghalaw.com -- Goldenberg Heller & Antognoli PC, Daniel Scott Levy, Law Office of Richard S. Cornfeld, 1010 Market St # 1605, Saint Louis, MO, 63101, David G. Bender -- DBENDER@ROSENBLUMGOLDENHERSH.COM -- Rosenblum, Goldenhersh et al., Edward M. Roth, Bruning Law Firm, 555 Washington Ave, Saint Louis, MO, 63101-124, Jessica C. Gittemeier -- JGITTEMEIER@ROSENBLUMGOLDENHERSH.COM -- Rosenblum, Goldenhersh et al. & Richard S. Bender -- rbender@rgsz.com -- Rosenblum, Goldenhersh et al. The Hertz Corporation, Defendant, represented by Andrew J. Lichtman -- alichtman@jenner.com -- Jenner & Block LLP, Daniel J. Weiss -- dweiss@jenner.com -- Jenner & Block, LLP, Jacob D. Alderdice -- jalderdice@jenner.com -- Jenner & Block LLP, Joel T. Pelz -- jpelz@jenner.com -- Jenner & Block, LLP, John F. Ward, Jr.- jward@jenner.com -- Jenner & Block, LLP, Ross B. Bricker -- rbricker@jenner.com -- Jenner & Block, LLP & William D. Heinz -- wheinz@jenner.com -- Jenner & Block, LLP. HICKORY RIDGE: Murphy Files ADA Class Action in New York -------------------------------------------------------- Hickory Ridge RV Resort Inc. is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as James Murphy, on behalf of himself and all other persons similarly situated, Plaintiff v. Hickory Ridge RV Resort Inc., Defendant, Case No. 1:19-cv-08053 (S.D. N.Y., Aug. 28, 2019). Hickory Ridge RV Resort Inc. is an RV Park with an 18 hole, par-72 professional golf course, located between Rochester and Buffalo, near Niagara Falls and just 1.5 miles from the Erie Canal walking trails .[BN] The Plaintiff is represented by: Zare Khorozian, Esq. Zare Khorozian Law, LLC 1047 Anderson Avenue Fort Lee, NJ 07024 Tel: (201) 957-7269 Email: zare@zkhorozianlaw.com HR STAFFING: Martinez-Zungia Sues Over Unpaid Minimum & OT Wages ---------------------------------------------------------------- MARIA MARTINEZ-ZUNGIA, individually and on behalf of all others similarly situated v. HR STAFFING SOLUTIONS, INC., a corporation; CLW Foods, LLC, a limited liability company; and DOES 1-20, inclusive, Case No. 19STCV29270 (Cal. Super., Los Angeles Cty., Aug. 21, 2019), alleges that the Defendants have engaged in a uniform policy and systematic scheme of wage abuse against the Plaintiff and their other non-exempt employees by, among other things, failing to provide meal and rest breaks and failing to pay minimum and overtime wages. HR Staffing Solutions Inc. provides staffing services to various employers throughout the Los Angeles area. CLW Foods, LLC sells and distributes meat products to various restaurants throughout Southern California. The Plaintiff is unaware and ignorant of the true names and capacities of the Doe Defendants.[BN] The Plaintiff is represented by: Caspar Jivalagian, Esq. Vache A. Thomassian, Esq. KJT LAW GROUP, LLP 230 N. Maryland Avenue, Suite 306 Glendale, CA 91206 Telephone: (818) 507-8525 Facsimile: (818) 507-8588 E-mail: caspar@KJTlawgroup.com vache@kjtlawgroup.com - and - Christopher A. Adams, Esq. ADAMS EMPLOYMENT COUNSEL 230 N. Maryland Avenue, Suite 306 Glendale, CA 91206 Telephone: (818) 425-1437 E-mail: CA@AdamsEmploymentCounsel.com HUDSON VALLEY: Objections to Denial of Spoliation Sanctions Junked ------------------------------------------------------------------- The United States District Court for the Southern District of New York issued an Opinion and Order overruling Plaintiffs' objection on Judge decision to deny Plaintiffs' Motion for Spoliation Sanctions in the case captioned JOSE RIVERA, individually and on behalf of all persons similarly situated, Plaintiff, v. HUDSON VALLEY HOSPITALITY GROUP, INC.; GOLDFISH RESTAURANTS, INC.; MICHAEL CASARELLA; and ATHANASIOS STRATIGAKIS. Defendants. No. 17-CV-5636 (KMK). (S.D.N.Y.). Plaintiff brings this putative Class Action against Hudson Valley Hospitality Group, Inc. Goldfish Restaurants, Inc., Michael Casarella and Athanasios Stratigakis, asserting claims for failure to pay overtime wages under the Fair Labor Standards Act of 1983 (FLSA) and Articles 6 and 19 of the New York Labor Law (NYLL). The Plaintiff objects to Judge Smith's decision not to impose spoliation sanctions. Specifically, Plaintiff argues that: (1) Judge Smith erred in holding that Plaintiff failed to establish that Defendants violated a duty to preserve Plaintiff's time records (2) Judge Smith erred in holding that Plaintiff failed to establish that Defendants destroyed the original time records after the lawsuit began, and thus failed to establish that Defendants had a culpable state of mind (3) Judge Smith erred in holding that an adverse inference instruction was not warranted and (4) Judge Smith erred by not awarding Plaintiff attorneys' fees. Application Duty to Preserve Under FLSA and NYLL The Plaintiff argues that Judge Smith incorrectly held that an employer can destroy its original, contemporaneous time records within the statutory periods prescribed by the FLSA and NYLL's record keeping requirements. The Plaintiff first argues that Judge Smith cited the incorrect provision of law when she applied 12 N.Y.C.R.R. Section 142, rather than 12 N.Y.C.R.R. Section 146, which pertains specifically to the hospitality industry. However, the recordkeeping standards included in these two provisions are substantively identical. Under 12 N.Y.C.R.R. Section 142-2.6, Every employer shall establish, maintain, and preserve for not less than six years, weekly payroll records. Under 12 N.Y.C.R.R. Section 146-2.1(a), Every employer shall establish, maintain, and preserve for at least six years weekly payroll records. Thus the application of Section 142 rather than Section 146 is, at most, harmless error. Next, Plaintiff interprets Section 146-2.1(e), which provides that employers, including those who maintain their records containing the information required by this section shall make such records or sworn certified copies thereof available at the place of employment upon request of the commissioner, and NYLL Section 195(4), which provides that an employer must establish, maintain, and preserve for not less than six years contemporaneous, true, and accurate payroll records, to mean that employers must keep the original versions of all employee time records, and argues Judge Smith committed clear error by holding otherwise. However, there is nothing in the statutory language mandating the preservation of original time records, rather than preserving the same information contained in those time records in another format. Indeed, the word original appears nowhere in Section 146-2.1 or Section 195(4). Although Plaintiff argues that his conclusion reflects well-settled law, he cites only a single case in support of this proposition, issued in 1972. Even if that case was binding on this Court, the court there was not evaluating the culpability of a party who spoliated evidence, but rather determining whether a government contractor failed to maintain adequate and accurate payroll records as required by 41 U.S.C. Section 36, a statute not at issue in this Action. The Court therefore finds no clear error in Judge Smith's conclusion that Defendants' failure to retain the original handwritten time records violated any duty to preserve payroll records under state law. Plaintiff's argument that Judge Smith misinterpreted the regulations pertaining to the FLSA is similarly unavailing. Federal regulations require that every employer shall maintain and preserve payroll or other records and that each employer shall preserve for at least 3 years from the last date of entry, all payroll or other records containing the employee information and data required under any of the applicable sections of this part. As Judge Smith observed, none of these requirements require that such records must be original and absolutely contemporaneous with the work so recorded. Judge Smith held that so long as employee work records are (a) accurate, (b) are prepared at or near the time of work performed, and (c) are maintained, the requirements of 29 C.F.R. Section 516.5 are satisfied. Absent any caselaw to the contrary, the Court finds that Judge Smith's conclusion was not clear error. Plaintiff did not adduce any evidence suggesting that the records produced by the Defendant were inaccurate. Plaintiff suggests that without original copies of the handwritten records, there is no proof that Defendants did not simply make up some fake time records once they were sued. The Court finds only that Judge Smith did not clearly err in holding that the failure to retain the handwritten timesheets on which electronic payroll records are based does not, without more, violate the obligation to preserve such records warranting spoliation sanctions. Culpable State of Mind The state of mind of the alleged spoliator determines what standard is necessary to prove relevance. The level of culpability is important because when bad faith is found, the court presumes relevance and when a party is grossly negligent, relevance is presumed under certain circumstances and a movant need not separately demonstrate the relevance of the material. Judge Smith held that the evidence as to whether Defendants acted with a culpable state of mind is equivocal at best. She reasoned that the inconclusive nature of Casarella's testimony, in which he was unable to identify exactly when the originals were discarded, and the absence of any other evidence on the subject, precluded her from finding that the records were destroyed after the start of the litigation. Because Plaintiff failed to offer any evidence of bad faith, Judge Smith did not clearly err in holding that Plaintiff failed to demonstrate that Defendants acted with a culpable state of mind. Relevance to Plaintiff's Claims To prove relevance, the party must show that the destroyed evidence was relevant' to the party's claim or defense such that a reasonable trier of fact could find that it would support that claim or defense. Judge Smith held that there is no evidence in the record that the contents of the handwritten time records differ in any way from the typewritten time records contained in the Excel spreadsheets and that the original timesheets are therefore not relevant to any claim or defense. Furthermore, Judge Smith found that even if Defendants negligently destroyed the handwritten timesheets, an adverse inference instruction would not be an appropriate sanction because any claim of prejudice is speculative. The Court finds no clear error in Judge Smith's conclusions. Because Plaintiff failed to introduce any evidence that the handwritten records would reveal something that contradicts the typewritten records, his claim that the original timesheets were relevant fails. Plaintiff argues that the mere fact that the handwritten copies were lost demonstrates that they would have contradicted the typewritten records. Plaintiff cites no case that supports this argument. Nor could he, as the caselaw supports the notion that the mere loss of original copies of evidence does not automatically warrant preclusion of that evidence or an adverse inference instruction. However, the Court agrees with Judge Smith's finding that although an adverse inference instruction is unwarranted, evidence of the destruction of the original handwritten time records as well as the creation of the Excel spreadsheets may be admissible at trial. New Evidence Plaintiff seeks to introduce metadata evidence showing that the handwritten records were destroyed after the litigation had begun, as well as evidence from class discovery, proffered for the first time in Plaintiff's Reply, showing that Defendants did not have records, handwritten or computerized, for any other back of the house kitchen staff employee. While the Court is generally not precluded from considering additional evidence not submitted by a party to a magistrate judge when reviewing a report and recommendation issued by such a judge on a dispositive motion pursuant to Rule 72(b) of the Federal Rules of Civil Procedure, there is nothing in Rule 72(a) of the Federal Rules of Civil Procedure which states that it may do so on a non-dispositive issue, such as that decided here. Indeed, the Court has not found a case in which Rule 72(a) objections are sustained based on evidence not presented to the magistrate judge and Plaintiff concedes that "there are no cases on record on which objections were sustained based on additional evidence, but argues that this case should be the first. In light of the overwhelming caselaw in the Second Circuit indicating that courts may not consider evidence not presented to the magistrate judge in connection with the original non-dispositive motion, the Court declines to consider the new evidence submitted by Plaintiff. A full-text copy of the District Court's dated August 22, 2019 Opinion and Order is available at https://tinyurl.com/y2lsk5fa from Leagle.com. Jose Rivera, Individually and on behalf of all persons similarly situated, Plaintiff, represented by Jordan Alexander El-Hag, El-Hag and Associates, P.C., 777 westchester Ave, Suite 101, White Plains, NY, 10604 Michael Casarella, Athanasios Stratigakis, Hudson Valley Hospitality Group, Inc. & Goldfish Restaurants, Inc., Defendants, represented by Mark Anthony Rubeo, Jr. , Reisman, Rubeo & McClure, LLP, 151 Broadway, Hawthorne, NY, 10532-1103 & Sharman Toby Propp , Sharman T. Propp, Attorney At Law, 138 Sleepy Hollow Rd., Briarcliff Manor, NY 10510 HUNTINGTON NATIONAL: Ohio Flips Appeals Ruling in Cheatham IRA Suit ------------------------------------------------------------------- The case captioned Paul Cheatham I.R.A., Appellee, v. Huntington National Bank, Appellant. No. 2018-0184. (Ohio), presents a question of first impression regarding the rights of a bondholder to seek redress for injuries suffered by a prior holder of the bonds. At common law, only the person who suffered the injury can, absent assignment of a chose in action, seek redress for the injury. The Sixth District Court of Appeals found a statutory exception to the common-law rule for securities under R.C. 1308.16(A) (Ohio's codification of Uniform Commercial Code ("UCC") 8-302), which states that "a purchaser of a certificated or uncertificated security acquires all rights in the security that the transferor had or had power to transfer." The court of appeals held that this statute allows a purchaser of a bond to assert a breach-of-contract claim that accrued before the bondholder's purchase because the purchaser acquired the rights of one who held the bond when the breach allegedly occurred. The Supreme Court of Ohio reversed the judgment of the court of appeals. The Cheatham IRA filed a class-action complaint, alleging that Huntington had breached the trust indenture. It alleged that the trust indenture required Huntington to exercise the rights and power vested in it by the trust indenture using the same degree of care and skill that a prudent person would exercise or use under the circumstances in the conduct of that person's own affairs. It further alleged that Huntington allowed the Villa North project to be mismanaged despite having available to it different remedies that could have protected the interests of the bondholders. The Cheatham IRA asked the court to certify a class of more than 50 bondholders who owned bonds secured by the Villa North project. The trial court held that commonality had not been established. It found that the Cheatham IRA had alleged numerous breaches of the trust indenture over a significant period of time and that the original bondholders' claims based on those breaches did not transfer to subsequent purchasers under the rights in the security language in R.C. 1308.16(A). On appeal, the Sixth District Court of Appeals reversed. That court noted that the Cheatham IRA had phrased the issue as whether the purchaser of a bond acquires causes of action that arose, under the terms of a Trust Indenture, prior to the time that the bondholder acquired the bonds. The court of appeals held that a contract claim for breach of the Trust Indenture, whether asserted against the trustee or the obligor, arises out of the contract with the bondholders and is thus a right in the security' that automatically transfers to subsequent purchasers pursuant to R.C. 1308.16(A). The law distinguishes the rights inuring to the possession of property from personal rights or claims that remain with the seller or transferor of that property after sale to another. A personal right is known as a chose in action, meaning a proprietary right in personam, such as a debt owed by another person, a share in a joint-stock company, or a claim for damages in tort. There is no question that the Cheatham IRA purchased its bonds after Huntington allegedly breached the trust indenture. There is likewise no question that the Cheatham IRA has not been assigned any rights to causes of action by a party who held the bonds at a time when the Cheatham IRA alleges that Huntington's alleged breach occurred. The Cheatham IRA has stated that its class certification effort is based upon the fundamental proposition that the purchase of one of the bonds at issue in this case gives the purchaser all of the rights in that bond that the seller had prior to the sale. That includes any claim that the seller had against Huntington Bank. The trial court noted that the Cheatham IRA conceded that if its interpretation of R.C. 1308.16 is incorrect, class certification is not justified in this case. The court of appeals erred to the extent that it held that a breach-of-contract claim that accrued before the sale of a bond automatically transferred with the bond under R.C. 1308.16(A). While language in R.C. 1308.16(A) stating that a purchaser of a certificated or uncertificated security acquires all rights in the security that the transferor had or had power to transfer might superficially support the conclusion that it provides for the automatic assignment of any rights held by the prior bondholder, the drafting history of this section shows that it does not apply to transfers of choses in action. The clearest statement of intent behind R.C. 1308.16(A) is contained in the Official Comment to that section: Subsection (a) provides that a purchaser of a certificated or uncertificated security acquires all rights that the transferor had or had power to transfer. This statement of the familiar shelter' principle is qualified by the exceptions that a purchaser of a limited interest acquires only that interest, subsection (b), and that a person who does not qualify as a protected purchaser cannot improve its position by taking from a subsequent protected purchaser, subsection (c). In other words, after property has passed into the hands of a bona fide purchaser, subsequent purchasers, even those with notice of asserted defenses, take clear of the defense. The reason is to protect the bona fide purchaser so that he can sell what he has purchased. As an expression of the shelter rule, Section 8-302(a) does not define rights in the security' as any right associated with the security that the transferor had or had power to transfer. Instead, the phrase had or had power to transfer' stands for the unremarkable proposition that people cannot transfer rights that they do not own or control. The Court holds that R.C. 1308.16(A) does not operate to allow the automatic assignment of rights upon a transfer of title; it sets forth only the shelter rule of securities the transferee takes all rights in the thing transferred that the transferor had the power to give. It follows that absent specific assignment of a chose in action for breach of contract, the trust indenture here does not automatically assign that right. The Cheatham IRA has, by virtue of being a bondholder, standing to enforce the terms of the trust indenture, but that does not mean that it was assigned a chose in action that accrued before it owned the bonds. The Cheatham IRA has been clear that its claim is based on Huntington's alleged failure to act upon notice of the initial default. Only those who owned the bonds at the time of the original default could bring an action for that breach of the trust indenture. This case came to the state Supreme Court on appeal from a judgment finding that the court of common pleas erred by refusing to certify a class action on grounds that the class lacked commonality. A class action is a representative action in which a plaintiff sues a defendant on behalf of a group or class of absent persons who have suffered harm similar in kind to the named plaintiff. As applicable here, the Cheatham IRA relies on Civ.R. 23(B)(3) as a basis for certifying a class: the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The Cheatham IRA concedes that if a breach-of-contract claim did not automatically transfer, a class action is no longer viable. The Court therefore reverses the judgment of the Sixth District Court of Appeals, and the Court remands to the court of common pleas for further proceedings. A full-text copy of the state Supreme Court's dated August 22, 2019 Opinion is available at https://tinyurl.com/y2swmu3g from Leagle.com. Strauss Troy, 150 E 4th St #4, Cincinnati, OH 4520 and Ronald R. Parry, 150 E 4th St., The Federal Reserve Bldg., Cincinnati, OH, 45202-4018, for appellee. Porter, Wright, Morris & Arthur, L.L.P., Kathleen M. Trafford -- ktrafford@porterwright.com -- J. Philip Calabrese, 950 Main Ave. Ste. 500, Cleveland, Ohio and Jay A. Yurkiw, 41 South High Street Suite 2900 Columbus, OH 43215, for appellant. Thompson Hine, L.L.P., Scott A. King -- Scott.King@ThompsonHine.com -- Brian J. Lamb -- Brian.Lamb@ThompsonHine.com -- and Terry W. Posey Jr. -- terry.posey@thompsonhine.com -- urging reversal for amicus curiae American Bankers Association. Dennis D. Hisch, 303 E Broad Street, Columbus, OH, 43215-3201, urging reversal for amici curiae commercial-law professors. ILLINOIS: Court Denies Class Certification & Tosses Perconti Suit ----------------------------------------------------------------- The Hon. Matthew F. Kennelly issued an order in the lawsuit captioned Thomas Perconti (B-38657) v. John Baldwin, et al., Case No. 1:19-cv-03566 (N.D. Ill.), denying the Plaintiff's motion for class certification and dismissing his complaint. If the Plaintiff wants to proceed with this action, he must submit an amended complaint that complies with this order, Judge Kennelly ruled. Failure to submit an amended complaint by September 23, 2019, will result in summary dismissal of this action, Judge Kennelly added. The Court defers ruling on the Plaintiff's motion for attorney representation. The Clerk of Court is directed to send the Plaintiff an amended complaint form and instructions along with a copy of this order. Thomas Perconti, an Illinois prisoner, has filed a pro se lawsuit under 42 U.S.C. Section 1983 concerning his experiences at the Stateville Correctional Center. The Plaintiff, who is incarcerated at the Lawrence Correctional Center, makes occasional trips to Stateville's Northern Reception and Classification Center (NRC) to attend court. Sometimes the trips are monthly but other times months elapse between trips, with each trip resulting in a stay of about two weeks before the Plaintiff is returned to Lawrence. "Suffice it to say that Plaintiff does not like his visits to the NRC. His 91-page complaint consists of 38 single-spaced, typed pages of allegations accompanied by 53 pages of exhibits that largely reiterate the issues asserted in his allegations. The scope of the allegations are wide-ranging and cover nearly every aspect of an inmate's experience at the NRC," according to the Order. Judge Kennelly opined that the Plaintiff's complaints about the conditions at the NRC are, for the most part, generalized insofar as he would like to bring this lawsuit as a class action. He may not, however, represent a class pro se, Judge Kennelly noted. "In other words, Plaintiff may not pursue in this lawsuit claims about every event or adverse condition he experienced or heard about at the NRC. He must limit his allegations to events that occurred and matters that he (not others) experienced, at identifiable times and identifiable places. He also may not combine unrelated claims into a single lawsuit, which means that he may not bring claims concerning the conditions in his cell in the same lawsuit as claims concerning a denial of religious services or allegedly retaliatory conduct involving, for instance, a denial of yard time," Judge Kennelly said.[CC] INDIANA: Jeffers' Pro Se Rights Dismissed as Class Suit ------------------------------------------------------- The United States District Court for the Southern District of Indiana, Indianapolis Division, issued an Order dismissing Prisoner's Pro Se Complaint in the case captioned NATHANIEL JEFFERS, Plaintiff, v. ROBERT E. CARTER, et al. Defendants. No. 1:19-cv-03278-JRS-DLP. (S.D. Ind.). Because the plaintiff is a prisoner as defined by 28 U.S.C. Section 1915A(c), this Court has an obligation under 28 U.S.C. Section 1915A(b) to screen his complaint before service on the defendants. Plaintiff Nathaniel Jeffers is a prisoner currently incarcerated at the Pendleton Correctional Facility (Pendleton). He brings this civil rights action under 42 U.S.C. The complaint names the following defendants: 1) Commissioner Robert E. Carter; 2) Warden Dushan Zatecky; and 3) Assistant Warden Duane Alsip. The plaintiff sues each defendant in his individual and official capacity. He seeks compensatory and punitive damages and injunctive relief. The plaintiff alleges that Pendleton is overcrowded. He alleges that the Warden and Assistant Warden have started double-bunking inmates. He also alleges that due to the overcrowding and being on lockdown, medical treatments have been delayed and denied. He alleges many inmates have suffered from delayed treatment. The plaintiff further alleges that Pendleton is understaffed which has led to denials of recreation and visitation. He alleges that violence among the prison inmates has increased. Also on his list of complaints is the number of hours between meals, that the nutritional value of meals is not adequate for grown men, and the kitchen equipment is not properly sanitized. Finally, he complains that the Indiana Department of Correction (IDOC) has revised the grievance policies to make it more difficult for inmates to complete the process. He alleges that these conditions violate his Eighth Amendment rights. Pursuant to the Eighth Amendment, prison officials have a duty to provide humane conditions of confinement, meaning, they must take reasonable measures to guarantee the safety of the inmates and ensure that they receive adequate food, clothing, shelter, and medical care. To state a claim under the Eighth Amendment, a plaintiff must allege facts sufficient to support a claim that the conditions of his confinement resulted in the denial of the minimal civilized measure of life's necessities, and that the defendants were deliberately indifferent to the conditions in which he was held. The overarching problem with the plaintiff's complaint is that he does not allege that he has suffered any compensable injury as a result of overcrowding or the other conditions he describes. Section 1983 allows for recovery only by a party injured by a deprivation of any rights, privileges, or immunities secured by the Constitution and laws. Double-bunking in prison is not per se unconstitutional. The plaintiff alleges no violence or other injuries that he suffered as a result of double-bunking and overcrowding. The plaintiff's double-bunking claim is dismissed for failure to state a claim upon which relief can be granted. Absent an allegation that the plaintiff has a serious medical condition and has been denied necessary treatment, he cannot state a viable Eighth Amendment claim for deliberate indifference. The plaintiff's denial of medical care claim is dismissed for failure to state a claim upon which relief can be granted. While nutritional food and opportunity for exercise are two of life's necessities, the plaintiff has not alleged that he has been denied meals on a regular basis, lost weight as a result of lack of food, been denied access to the commissary to purchase additional food, or been denied the ability to exercise in or outside of his cell. Again, because he has not alleged that he has suffered these or other types of harm, his inadequate food and recreation claims are dismissed for failure to state a claim upon which relief can be granted. With respect to the change in the IDOC grievance policies, no action lies under § 1983 unless a plaintiff has asserted the violation of a federal right. The plaintiff's allegations of violations of or changes in IDOC policy does not support a claim under section 1983 and are therefore dismissed for failure to state a claim upon which relief can be granted. Finally, the complaint contains no allegations of personal wrongdoing on the part of Commissioner Carter. Individual liability under Section 1983 requires personal involvement in the alleged constitutional deprivation. Any claim against Commissioner Carter is dismissed for failure to state a claim upon which relief can be granted. The complaint must be dismissed for failure to state a claim upon which relief can be granted. Motion to Maintain Suit as a Class Action A non-attorney cannot bring claims on behalf of anyone else in federal court. Here, the complaint is being dismissed for failing to state a claim upon which relief can be granted. For that reason and because the plaintiff is pro se, the plaintiff's motion to maintain suit as a class action is denied. If the plaintiff fails to respond to this order to show cause, the case will be dismissed in accordance with 28 U.S.C. Section 1915A(b) for failure to state a claim upon which relief can be granted, without further notice. A full-text copy of the District Court's dated August 22, 2019 Order is available at https://tinyurl.com/y4frg2ne from Leagle.com. NATHANIEL JEFFERS, Plaintiff, pro se. ROBERT E. CARTER, Commissioner of IDOC, Defendant, pro se. DUSHAN ZATECKY, Warden, Defendant, pro se. DUANE ALSIP, Assistant Warden, Defendant, pro se. INSTANT CHECKMATE: Fischer et al. Suit Transferred to N.D. Ill. --------------------------------------------------------------- The case, Fischer et al v. Instant Checkmate LLC., Case No. 2019-CH-07517 (Filed on June 21, 2019), was transferred from the Illinois Circuit Court of Cook County to the United States District Court for the Northern District of Illinois on July 22, 2019. The removal of this case is based on the diversity of citizenship of the parties and the amount in controversy. This class action lawsuit is now assigned to Hon. Judge Charles R. Norgle, Sr. Instant Checkmate LLC is a public records search service in the United States. It offers online background checks. [BN] Attorneys for Defendant: Aimee Elizabeth Graham, Esq. DENTONS US LLP 233 South Wacker Drive Suite 5900 Chicago, IL 60606 Telephone: (312) 876-8000 E-mail: aimee.graham@dentons.com - and - Natalie J. Spears, Esq. DENTONS US LLP 233 South Wacker Drive Suite 5900 Chicago, IL 60606 Telephone: (312) 876-8000 E-mail: natalie.spears@dentons.com INTEL CORP: Mishandled Retirement Plan Investment, Anderson Says ---------------------------------------------------------------- WINSTON R. ANDERSON, individually and on behalf of all others similarly situated, Plaintiff v. INTEL CORPORATION INVESTMENT POLICY COMMITTEE; INTEL RETIREMENT PLANS ADMINISTRATIVE COMMITTEE; FINANCE COMMITTEE OF THE INTEL CORPORATION BOARD OF DIRECTORS; CHRISTOPHER C. GECZY; RAVI JACOB; DAVID S. POTTRUCK; ARVIND SODHANI; RICHARD TAYLOR; TERRA CASTALDI; RONALD D. DICKEL; TIFFANY DOON SILVA; TAMI GRAHAM; CARY KLAFTER; STUART ODELL; CHARLENE BARSHEFSKY; JOHN J. DONAHOE; REED E. HUNDT; JAMES D. PLUMMER; STACY SMITH; ROBERT H. SWAN; TODD UNDERWOOD; INTEL 401(K) SAVINGS PLAN and INTEL RETIREMENT CONTRIBUTION PLAN, Defendants, Case No. 5:19-cv-04618 (N.D. Cal., Aug. 9, 2019) alleges violation of the Employee Retirement Income Security Act of 1974. The Plaintiff alleges in the complaint that the Defendants breached their fiduciary duties by investing billions of dollars in retirement savings in unproven and unprecedented investment allocation strategies featuring high-priced, low-performing illiquid and opaque hedge funds. The Plaintiff is a participant in the Plans and brings this action on behalf of a class of similarly situated participants as a class action to recover relief on behalf of the Plans against the Intel Retirement Plans Investment Policy Committee ("the Investment Committee") and its members, the Intel Retirement Plans Administrative Committee ("the Administrative Committee") and its members, the Finance Committee of the Intel Corporation Board of Directors ("the Finance Committee") and its members, and the Chief Financial Officers of Intel Corporation ("the Chief Financial Officers"). The Investment Committee designed and implemented retirement investment strategies, a suite of target date portfolios ("Intel TDFs") with a dynamic allocation model and a multi-asset fund with a fixed allocation model ("Intel GDFs") that deviated greatly from prevailing professional investment standards for such retirement strategies in several critical ways—chief among them investing billions in hedge funds, private equity, and commodities—and then as investment returns repeatedly lagged peers and benchmarks did nothing while billions of dollars in retirement savings were lost. The Investment Committee deviated from the standard of care of similarly-situated plan fiduciaries who select target date funds for their plans that include little or no exposure to these strategies. The Investment Committee (a) failed to properly monitor the performance and fees of the Intel TDFs and Intel GDF in the Plans and to properly investigate the availability of lower-cost investment alternatives with similar or superior performance, and (b) failed to properly monitor and evaluate the unconventional, high-risk allocation models adopted for these custom investment options, which excessively allocated assets of the Plans to speculative investments. Additionally, the Administrative Committee failed to provide adequate disclosures associated with the custom investment options' heavy allocation to hedge funds and private equity, and either misinformed or failed to inform participants about the allocation mix of their account balances and the allocation strategy of the custom target-date options. Finally, the Finance Committee and the Chief Financial Officers failed to monitor the Investment and Administrative Committees. As a result of these imprudent decisions and inadequate processes, Defendants caused the Plans and many participants in the Plans to suffer substantial losses in retirement savings. Intel Corporation Investment Policy Committee is a named fiduciary of the Intel 401(k) Savings Plan and the Intel Retirement Contribution Plan. [BN] The Plaintiff is represented by: R. Joseph Barton, Esq. BLOCK & LEVITON LLP 1735 20th St NW Washington DC 20009 Telephone: (202) 734-7046 Facsimile: (617) 507-6020 E-mail: joe@blockesq.com - and - Joseph Creitz, Esq. CREITZ & SEREBIN LLP 100 Pine Street, Suite 1250 San Francisco, CA 94111 Telephone: (415) 466-3090 Facsimile: (415) 513-4475 E-mail: joe@creitzserebin.com - and - Gregory Y. Porter, Esq. BAILEY & GLASSER LLP 1054 31st Street, NW, Suite 230 Washington, DC 20007 Telephone: (202) 463-2101 Facsimile: (202) 463-2103 E-mail: gporter@baileyglasser.com - and - Major Khan, Esq. MAJOR KHAN LLC 1120 Avenue of the Americas, Suite 4100 New York, NY 10036 Telephone: (646) 546-5664 Facsimile: (646) 546-5755 JARROW FORMULAS: Bid for Class Certification Denied --------------------------------------------------- In the class action lawsuit styled as Collin Shanks, the Plaintiff, v. Jarrow Formulas, Inc., the Defendant, Case No. 2:18-cv-09437-PA-AFM (C.D. Cal.), the Court denied the Plaintiff's motion for class certification of: "all persons who, since November 6, 2014, purchased in the United States (or alternatively in California, if the Court does not certify a nationwide class), for personal or household use, and not for resale or distribution, a 16 oz. or 32 oz. Jarrow Organic Extra Virgin or Jarrow Regular Coconut Oil whose label did not bear a disclosure statement of the type required by 21 C.F.R. 101.13(h)." Even assuming a per se violation, the Plaintiff still must be able to demonstrate "what portion of the sale price was attributable to the value consumers placed on the [challenged] statements." Rahman v. Mott's LLP, 13CV03482, 2014 WL 6815779 (N.D. Cal. Dec. 3, 2014). The Plaintiff has not met his burden of showing, by a preponderance of the evidence, what portion of the sale of Defendant's coconut oil products was attributable to the value consumers placed on the challenged statements, because Plaintiff has not introduced any evidence that any consumer other than himself actually relied on the challenged statements and paid a premium for Defendant's products based on that reliance, the lawsuit says.[CC] KEURIG GREEN: Diaz Files ADA Class Suit in New York --------------------------------------------------- Keurig Green Mountain, Inc. is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Edwin Diaz, on behalf of himself and all others similarly situated, Plaintiff v. Keurig Green Mountain, Inc., Defendant, Case No. 1:19-cv-08039 (S.D. N.Y., Aug. 28, 2019). Keurig Green Mountain, Inc. operates as a beverage company. The Company produces and sells coffee, hot cocoa, teas, beverages, and other related products.[BN] The Plaintiff appears PRO SE. The Defendant is represented by: Joseph H Mizrahi, Esq. Cohen & Mizrahi LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Tel: (929) 575-4175 Fax: (929) 575-4195 Email: joseph@cml.legal KIDDING AROUND: Conner Files Class Suit under Disabilities Act -------------------------------------------------------------- Kidding Around NYC, Inc. is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Mary Conner, individually and as the representative of a class of similarly situated persons, Plaintiff v. Kidding Around NYC, Inc., Defendant, Case No. 1:19-cv-04909 (E.D. N.Y., Aug. 28, 2019). Kidding Around Nyc, Inc. (trade name Kidding Around) is in the Children's Toys and Games, except Dolls business.[BN] The Plaintiff is represented by: Dan Shaked, Esq. Shaked Law Group, P.C. 14 Harwood Court, Suite 415 Scarsdale, NY 10583 Tel: (917) 373-9128 Email: shakedlawgroup@gmail.com LABORATORY CORP: Covance Faces Mitchell Class Suit in Pennsylvania ------------------------------------------------------------------ Laboratory Corporation of America Holdings said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 8, 2019, for the quarterly period ended June 30, 2019, that Covance, Inc. has been named as a defendant in a class action suit entitled, Mitchell v. Covance, Inc. et al. On July 1, 2019, a class action lawsuit, Mitchell v. Covance, Inc. et al., was filed in the United States District Court for the Eastern District of Pennsylvania. Plaintiff alleges that certain individuals employed by Covance Inc. and Chiltern International Inc. were misclassified as exempt employees under the Fair Labor Standards Act and the Pennsylvania Minimum Wage Act and were thereby not properly paid overtime compensation. The lawsuit seeks monetary damages, liquidated damages, and recovery of attorneys' fees and costs. The Company will vigorously defend the lawsuit. Laboratory Corporation of America Holdings operates as an independent clinical laboratory company worldwide. It operates through two segments, LabCorp Diagnostics and Covance Drug Development. The company was founded in 1971 and is headquartered in Burlington, North Carolina. LABORATORY CORP: Faces Ignacio Class Suit in California ------------------------------------------------------- Laboratory Corporation of America Holdings said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 8, 2019, for the quarterly period ended June 30, 2019, that the company has been named as a defendant in a class action suit entitled, Ignacio v. Laboratory Corporation of America. On June 10, 2019, the Company was served with a class action lawsuit, Ignacio v. Laboratory Corporation of America, filed in Superior Court of the State of California for the County of Los Angeles. Plaintiff alleges that non-exempt employees based in California were not properly paid overtime compensation, minimum wages, meal and rest break premiums, were not indemnified for business expenses, did not receive compliant wage statements, and were not properly paid wages upon termination of employment. Plaintiff asserts these actions violate various California Labor Code provisions and constitute an unfair competition practice under California law. The lawsuit seeks monetary damages, liquidated damages, injunctive relief, and recovery of attorney's fees and costs. The Company will vigorously defend the lawsuit. Laboratory Corporation of America Holdings operates as an independent clinical laboratory company worldwide. It operates through two segments, LabCorp Diagnostics and Covance Drug Development. The company was founded in 1971 and is headquartered in Burlington, North Carolina. LABORATORY CORP: Faces Jan Class Action Suit in California ---------------------------------------------------------- Laboratory Corporation of America Holdings said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 8, 2019, for the quarterly period ended June 30, 2019, that the company has been named as a defendant in a class action suit entitled, Jan v. Laboratory Corporation of America. On June 26, 2019, a class action lawsuit, Jan v. Laboratory Corporation of America, was filed in the Superior Court for the State of California for the County of Sacramento. Plaintiff alleges that non-exempt employees based in California were not properly paid meal and rest break premiums, did not receive compliant wage statements, and were not properly paid wages upon termination of employment. Plaintiff asserts these actions violate various California Labor Code provisions and constitute an unfair competition practice under California law. The lawsuit seeks monetary damages, liquidated damages, injunctive relief, and recovery of attorney's fees and costs. The Company will vigorously defend the lawsuit. Laboratory Corporation of America Holdings operates as an independent clinical laboratory company worldwide. It operates through two segments, LabCorp Diagnostics and Covance Drug Development. The company was founded in 1971 and is headquartered in Burlington, North Carolina. LAKE ARBOR 80M TIC: Russell et al. Suit Transferred to W.D.N.C. --------------------------------------------------------------- The case, Russell et al v. Lake Arbor 80M TIC, LLC et al, Case No. 19-cvs-11761, was transferred from Mecklenburg County Superior Court to the United States District Court for the Western District of North Carolina on July 17, 2019. The case is now assigned to Hon. Judge Frank D. Whitney. The United States District Court for the Western District of North Carolina opened Case No. 3:19-cv-00338-FDW-DSC for further proceedings. Lake Arbor 80M TIC, LLC is doing business as Lake Arbor Apartments. It manages an apartment complex in Charlotte, North Caronila. [BN] Attorneys for Defendant: Erik M. Rosenwood, Esq. HAMILTON STEPHENS STEELE MARTIN, PLLC 525 N. Tryon Street Suite 1400 Charlotte, NC 28244-2020 Telephone: (704) 227-1078 Facsimile: (704) 344-1117 E-mail: Erik@rosenwoodrose.com - and - Jennifer K. Van Zant, Esq. BROOKS, PIERCE, MCLENDON, HUMPHREY & LEONARD, LLP P. O. Box 26000 Greensboro, NC 27420 Telephone: (336) 271-3132 Facsimile: (336) 232-9132 E-mail: jvanzant@brookspierce.com - and - Whitaker Boykin Rose, Esq. BAUCOM, CLAYTOR, BENTON, MORGAN & WOOD P.O. Box 35246 Charlotte, NC 28235 Telephone: (704) 376-6527 Facsimile: (704) 376-6207 E-mail: wrose@rosenwoodrose.com - and – D. J. O'Brien, III, Esq. BROOKS PIERCE MCLENDON HUMPHREY & LEONARD 2000 Renaissance Plaza 230 North Elm Street Greensboro, NC 27401 Telephone: (336) 383-8850 Facsimile: (336) 232-9195 E-mail: dobrien@brookspierce.com LAND O'FROST: Accused by Kelly of Reprisal Over Use of FMLA Leave ----------------------------------------------------------------- EVA KELLY, on Behalf of herself and All Others Similarly-situated v. LAND O'FROST, INC., Case No. 4:19-cv-00103-JHM-HBB (W.D. Ky., Aug. 21, 2019), alleges violations of the Family and Medical Leave Act. The Defendant's termination of the Plaintiff in retaliation for her exercise of her rights to apply for intermittent FMLA leave and request FMLA leave on the day of her termination interfered with, restrained, and denied her rights under the FMLA, and otherwise violated the FMLA, according to the complaint. The Defendant is an Illinois For-Profit Corporation. The Defendant has registered itself with the Kentucky Secretary of State as having a principal office in Lansing, Illinois. Land O'Frost offers food products. The Company provides ready-to-eat processed meat and other associated food products.[BN] The Plaintiff is represented by: Mark N. Foster, Esq. LAW OFFICE OF MARK N. FOSTER, PLLC P.O. Box 869 Madisonville, KY 42431 Telephone: (270) 213-1303 E-mail: MFoster@MarkNFoster.com LANNETT CO: Conspiracy Claims in Generic Drugs Suit Stand --------------------------------------------------------- Lannett Company, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on August 28, 2019, for the fiscal year ended June 30, 2019, that a court has denied the defendants' joint motion to dismiss conspiracy claims in the class action suit related to alleged price-fixing of generic drugs. On September 25, 2018, two other alleged direct purchasers filed a purported class action complaint alleging an overreaching, industry-wide horizontal and vertical conspiracy involving the company, numerous other generic pharmaceutical manufacturers, and various pharmaceutical distributors to allocate markets and fix prices generally for a variety of generic drugs. The case has been added to the multidistrict litigation. On December 21, 2018, the plaintiffs filed an amended complaint. On February 21, 2019, the Company and the other defendants filed motions to dismiss the overarching conspiracy claims. On August 15, 2019, the Court denied the defendants' joint motion to dismiss the overarching conspiracy claims, but has yet to decide an individual motion filed by the Company to dismiss the overarching conspiracy claims as to it. Lannett said, "The Company believes that it acted in compliance with all applicable laws and regulations. Accordingly, the Company disputes the allegations set forth in these class actions and plans to vigorously defend itself from these claims." Lannett Company, Inc. develops, manufactures, packages, markets, and distributes generic versions of brand pharmaceutical products in the United States. The company offers solid oral and extended release, topical, liquid, nasal, and oral solution finished dosage forms of drugs that address a range of therapeutic areas, as well as ophthalmic, patch, foam, buccal, sublingual, suspension, soft gel, and injectable dosages. Lannett Company, Inc. was founded in 1942 and is based in Philadelphia, Pennsylvania. LANNETT CO: Final Settlement Approval Hearing Set for Feb. 2020 --------------------------------------------------------------- Lannett Company, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on August 28, 2019, for the fiscal year ended June 30, 2019, that a final hearing to consider approval of the settlement in a Pennsylvania class action suit has been set for February 7, 2020. In October 2018, a putative class action lawsuit was filed against the Company and two of its officers in the federal court for the Eastern District of Pennsylvania, alleging that the Company, its Chief Executive Officer and its Chief Financial Officer damaged the purported class by making false and misleading statements in connection with the possible renewal of the Company's distribution agreement with Jerome Stevens Pharmaceuticalsthe (JSP Distribution Agreement). In December 2018, counsel for the putative class filed an amended complaint. The Company moved to dismiss the amended complaint in January 2019. In March 2019, the Court granted in part and denied in part the Company's motion to dismiss. In May 2019, the Company filed an answer to the amended complaint. During May and June 2019, the parties negotiated a proposed settlement and agreed to settle the litigation, by which the Company agreed to pay the sum of $300,000 without an admission of liability and subject to the negotiation of the terms of a stipulation of settlement and approval by the Court. In July 2019, counsel for the putative class filed a motion for preliminary approval of the proposed settlement and on July 31, 2019, the Court issued an Order granting the motion and scheduling a hearing for final approval of the settlement for February 7, 2020. Lannett Company, Inc. develops, manufactures, packages, markets, and distributes generic versions of brand pharmaceutical products in the United States. The company offers solid oral and extended release, topical, liquid, nasal, and oral solution finished dosage forms of drugs that address a range of therapeutic areas, as well as ophthalmic, patch, foam, buccal, sublingual, suspension, soft gel, and injectable dosages. Lannett Company, Inc. was founded in 1942 and is based in Philadelphia, Pennsylvania. LANNETT CO: Suit over Drug Pricing Methodologies Underway --------------------------------------------------------- Lannett Company, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on August 28, 2019, for the fiscal year ended June 30, 2019, that the company continues to defend a class action suit related to the company's drug pricing methodologies and internal controls. In November 2016, a putative class action lawsuit was filed against the Company and two of its officers in the federal court for the Eastern District of Pennsylvania, alleging that the Company damaged the purported class by including in its securities filings false and misleading statements regarding the Company's drug pricing methodologies and internal controls. An amended complaint was filed in May 2017, and the Company filed a motion to dismiss the amended complaint in September 2017. In December 2017, counsel for the putative class filed a second amended complaint, and the Court denied as moot the Company's motion to dismiss the first amended complaint. The Company filed a motion to dismiss the second amended complaint in February 2018. In July 2018, the court granted the Company's motion to dismiss the second amended complaint. In September 2018, counsel for the putative class filed a third amended complaint. The Company filed a motion to dismiss the third amended complaint in November 2018. In May 2019, the court denied the Company's motion to dismiss the third amended complaint. In July 2019, the Company filed an answer to the third amended complaint. The Company believes it acted in compliance with all applicable laws and plans to vigorously defend itself from these claims. The Company cannot reasonably predict the outcome of the suit at this time. Lannett Company, Inc. develops, manufactures, packages, markets, and distributes generic versions of brand pharmaceutical products in the United States. The company offers solid oral and extended release, topical, liquid, nasal, and oral solution finished dosage forms of drugs that address a range of therapeutic areas, as well as ophthalmic, patch, foam, buccal, sublingual, suspension, soft gel, and injectable dosages. Lannett Company, Inc. was founded in 1942 and is based in Philadelphia, Pennsylvania. LEGAL & GENERAL: Life Insurance Policy Violates RICO, Suits Say --------------------------------------------------------------- GERTRUDE H. ALLEN; MARIANNE E. ALLEN; LAURIE L. ALLEN; and RONALD WM. COLE, as Trustees of 1988 TRUST FOR ALLEN CHILDREN individually and on behalf of all others similarly situated, Plaintiffs v. LEGAL & GENERAL AMERICA, INC.; BANNER LIFE INSURANCE COMPANY; FIRST AMERICAN INSURANCE UNDERWRITERS, INC.; and JONATHAN GOLDSTEIN, Defendants, Case No. 4:19-cv-04729-KAW (N.D. Cal., Aug. 13, 2019) seeks to recover damages that the Plaintiffs and the Class sustained in connection with their purchase of, ownership of and participation in the Life Insurance Policies that Defendants designed, developed, promoted, sold, and issued. The complaint also alleges the Defendants' breach of fiduciary duty, negligent misrepresentation, disgorgement, rescission, fraud, violations of the Racketeer Influenced and Corrupt Organizations Act. According to the complaint, there is conspiracy among the Defendants to prey on elderly individuals by marketing and selling to them a product that did not actually exist. The Defendants targeted elderly individuals seeking to obtain permanent life insurance that would last the remainder of their lives. Such individuals were in a particularly vulnerable position as their age made it difficult to obtain permanent life insurance at an affordable cost. The Defendants purported to offer a solution for this dilemma to bring peace of mind to these individuals. In reality, what the Defendants marketed and sold to these individuals was a sham. The Defendants developed flexible premium universal life insurance policies that purportedly had three features that would collectively keep the death benefit on the policies in place for the remainder of the Insured's life: (1) a low 20-year Monthly Guarantee Premium (marketed as a "term alternative"); (2) a grace period provision that would keep the policy in force after 20 years as long as the account value was sufficient to cover the monthly deduction (the "Grace Period"); and (3) and Extension of Maturity Date endorsement that would keep the death benefit in force beyond age 100 with no further premiums. The Defendants then marketed and sold these insurance policies. The Defendants and Other Participants designed the Banner Policies to have an initial 20-year term during which the premiums were guaranteed to remain level. Based on written promises and representations contained in the life insurance contracts and the in-force illustrations prepared by the Defendants and provided to the Plaintiffs and members of the Class, the Banner Policies were further designed so that, at the expiration of the Guaranteed Period, the policies could be extended through the Grace Period until the Insured reached the age of 100 with the payment of additional premiums, at which point the death benefit would remain in place for the remainder of the Insured's life with no additional premiums due after the attainment of age 100. At the time the Plaintiffs and members of the Class purchased the Banner Policies, the Defendants represented in the policy documents that the value of the policy account during the Guaranteed Period would remain at or above $0, that it would never go negative during the Guaranteed Period, unless there were loans taken out against the policy. The Defendants reiterated this representation each year during the Guaranteed Period in the annual account statements that were sent to the Plaintiffs and members of the Class. Unbeknownst to the Plaintiffs and members of the Class, the Defendants were secretly keeping a second set of books that purported to show a deficit account accruing and increasing annually on each of the policies. Specifically, the Defendants secretly allocated "costs" to each of the Banner Policy accounts on a separate, undisclosed set of books, such that each account carried a "deficit" from the outset that continued to grow throughout the Guaranteed Period. The amount of the Deficit Account, the basis for the Deficit Account, or even the fact that such a Deficit Account existed were never disclosed to the Plaintiffs and members of the Class at the time they purchased the Banner Policies. The Defendants sent annual account statements to the Plaintiffs and members of the Class purporting to disclose the "value" of the respective Banner Policy accounts, but these account statements made no mention of the Deficit Account purportedly growing in each account and consistently showed a value of $0 or more. Moreover, the life insurance contracts provided to the Plaintiffs and members of the Class when the Banner Policies were purchased contained a "Statement of Policy Cost and Benefit Information" that purported to show the value of the account through the expiration of the Guaranteed Period. The Statement of Policy Cost and Benefit Information for each Banner Policy indicated an "end of year account value" at the expiration of the Guaranteed Period of $0 or more. Based on this secret second set of books, the Defendants would then demand that the Purchasers, or other owner of the policy at the time, pay the balance of the enormous Deficit Account in order to keep the policies in place for the first year after the expiration of the Guaranteed Period. In the Plaintiffs' case, the Banner Defendants demanded that the Plaintiffs pay a premium of $5,876,215.11 in order to keep the policy in place, even though the death benefit remained the same -- only $1,000,000 for year 21. The amount of the premiums due in year 21 to keep the Banner Policies in place was (1) unconscionable on its face; and (2) inconsistent with the numerous written representations from the Defendants in the life insurance contracts, illustrations and annual account statements regarding the value of the Banner Policies. None of these facts were disclosed to the Plaintiffs or members of the Class at the time they purchased the Banner Policies. Despite the Defendants' written promises and representations, the Banner Policies were never designed to provide a permanent death benefit through the remainder of the Insureds' lives. Rather, the Defendants intentionally, and without the knowledge of the Plaintiffs and members of the Class, designed the Banner Policies so that the policies could not be extended beyond the Guaranteed Period unless the Purchaser, or other owner of the policy at the time, paid the unconscionable premium that the Banner Defendants demanded in year 21, that included the balance of the undisclosed Deficit Account. Legal & General America, Inc. provides insurance services. The Company offers life insurance, retirement planning, and claim settlement services. Legal & General America serves customers in the United States. [BN] The Plaintiffs are represented by: Kyle G. Bates, Esq. Ryan M. Hecht, Esq. SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP 200 Powell Street, Suite 1400 Emeryville, CA 94608 Telephone: (415) 421-7100 Facsimile: (415) 421-7105 E-mail: kbates@schneiderwallace.com rhect@schneiderwallace.com - and - David R. Deary, Esq. W. Ralph Canada Jr., Esq. Jevin R. Sloan, Esq. LOEWINSOHN FLEGLE DEARY SIMON LLP 12377 Merit Drive, Suite 900 Dallas, TX 75251 Telephone: (214) 572-1700 Facsimile: (214) 572-1717 E-mail: DavidD@lfdslaw.com RalphC@lfdslaw.com JevenS@lfdslaw.com LOANCARE LLC: Court Denies Dismissal of Hamilton FDCPA Suit ----------------------------------------------------------- The United States District Court for the Northern District of Illinois, Eastern Division, issued a Memorandum Opinion and Order denying Defendants' Motion to Dismiss in the captioned DERICK L. HAMILTON, Plaintiff, v. LOANCARE, LLC, Defendant. No. 19 C 0554. (N.D. Ill.). The Plaintiff on behalf of all others similarly situated, filed a complaint against Defendant, LoanCare, LLC, pertaining to a letter Hamilton received concerning a debt from a real estate mortgage. Hamilton brings the claim for violation of the Fair Debt Collection Practices Act (FDCPA). Hamilton's claim is for a violation of the Fair Debt Collection Practices Act (FDCPA), LoanCare moves to dismiss the claim, arguing that the Complaint fails to state a cause of action for three reasons: (1) the Waiver Notice is not collection activity under the FDCPA (2) the Waiver Notice was sent to Hamilton's attorney's rather than Hamilton and no competent attorney would have been deceived by the notice; and (3) if the competent attorney standard is not applied, the unsophisticated consumer would still not have been misled by the Waiver Notice. The Court will address the first two of these arguments. Whether the Waiver Notice is collection activity under the FDCPA The FDCPA generally prohibits debt collectors from engaging in abusive, deceptive, or unfair debt-collection practices. Pursuant to Section 1692e of the FDCPA, a debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Loancare does not dispute that it qualifies as a debt collector, but argues that the Waiver Notice was not sent in connection with the collection of a debt because the Waiver Notice did not make an express demand for payment, list a payment due date, or threaten consequences should the debtor fail to pay. Whether a communication was sent in connection with the collection of a debt is a commonsense inquiry and a question of objective fact, to be proven like any other fact. While there is no bright-line rule to determine whether a communication from a debt collector was made in connection with the collection of a debt, the Seventh Circuit identified three factors courts should consider: 1) the absence of a demand for payment 2) the nature of the parties' relationship and 3) the purpose and context of the communications viewed objectively. The third factor, the purpose and context of the communications viewed objectively, also weighs in favor of applying the FDCPA at least at the pleadings stage. Here, the Waiver Notice expressly stated there remains a deficiency of $49.867.54, and included a disclaimer in all caps and bold stating, TO THE EXTENT THE FAIR DEBT COLLECTION PRATICES ACT (FDCPA) IS APPLICABLE, PLEASE BE ADVISED THAT THIS COMMUNICATION IS FROM A DEBT COLLECTOR AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. Given the overall context, here, where (1) the relationship between Loancare and Hamilton is solely one of debt collector/debtor (2) the letter identified a deficiency balance and (3) the letter included a disclaimer that this communication is from a debt collector and any information obtained will be used for that purpose; the Court finds that a reasonable consumer could plausibly view the communication as one in connection with the collection of a debt. Loancare argues that the presence of a bankruptcy disclaimer in the Waiver Notice strongly favors granting the motion to dismiss. But, as Hamilton correctly asserts, the presence of a bankruptcy disclaimer is not dispositive. Numerous courts have found communications to be in connection with an attempt to collect a debt despite the inclusion of a bankruptcy disclaimer. Loancare also argues that a reasonable consumer could not plausibly believe the purpose of this communication was to collect a debt because the Waiver Notice explicitly stated that Loancare waives its right to collect the unpaid deficiency balance and will not pursue Hamilton for any portion of the deficiency balance. Although admittedly a close call, the Court agrees with Hamilton, at least at the pleadings stage, that given the context here of the exclusive debt collector/debtor relationship between Loancare and Hamilton, and the fact that the letter identified a deficiency balance and included a debt collector disclaimer, a reasonable consumer could view this communication as debt collection activity despite the waiver language. When taken as a whole and construed in the light most favorable to the plaintiffs, the Court finds that, from the perspective of a reasonable consumer, the amended complaint plausibly alleges that the purpose of the Waiver Notice was to collect a debt. The Court now turns to Loancare's next argument that any alleged false or misleading communication in the Waiver Notice is not actionable under the FDCPA when subject to the competent attorney standard. Whether Loancare's false and misleading representation is actionable under the competent attorney standard When a case involves alleged false representations to a debtor's attorney, the Seventh Circuit has found that the relevant inquiry is whether a competent attorney, even if he is not a specialist in consumer debt law, would be deceived by the representation.The Seventh Circuit has held that there is not an actionable FDCPA violation where a competent attorney would be able to determine whether his client continued to owe a debt and would therefore not be deceived by the communication. Loancare points out, and Hamilton does not dispute, that although Hamilton is the recipient named in the Waiver Notice, the Waiver Notice was sent to the office suite of Hamilton's lawyers in the present cause of action. Loancare argues that given this, the heightened competent attorney standard as opposed to the unsophisticated consumer standard should be used. Because the Waiver Notice was sent to Hamilton's attorney, the Court will apply the competent attorney standard" in its analysis. Here, Hamilton alleges that the Waiver Notice contained an implicit false representation, that the deficiency balance in excess of the maximum home loan guaranty was owed up to the date it was waived by the deficiency holder. Although admittedly another close determination, the Court finds at this early stage of the litigation, without expressing an opinion on the ultimate merits of Hamilton's claim, that Hamilton has plausibly alleged that a competent attorney would be unable to discover the falsity of the representation without an investigation; and thus the misrepresentation would be actionable. Accordingly, Loancare's motion to dismiss is denied. A full-text copy of the District Court's dated August 22, 2019 Memorandum Opinion and Order is available at https://tinyurl.com/yyta82vk from Leagle.com. Derrick L. Hamilton, Plaintiff, represented by Joseph Scott Davidson, Sulaiman Law Group, Ltd. & Mohammed Omar Badwan, Sulaiman Law Group, Ltd, 2500 South Highland Avenue, Suite 200, Lombard, IL, 60148 Loancare, LLC, Defendant, represented by Charles Michael Baum, Fidelity National Law Group, 105 Eisenhower Pkwy Ste 103, Roseland, NJ 07068-1640 LOUISIANA: Class of Medicaid Recipients Certified in AJ Suit ------------------------------------------------------------ The Hon. Brian A. Jackson certified a class in the lawsuit styled A.J., a minor child by and through his mother, DONNELL CREPPEL, ET AL. v. REBEKAH GEE, in her official capacity as secretary of the Louisiana Department of Health, ET AL., Case No. 3:19-cv-00324-BAJ-RLB (M.D. La.). The class is defined as: All current and future Medicaid recipients under the age of twenty-one (21) in Louisiana who are certified in the Children's Choice Waiver, or the New Opportunities Waiver, the Supports Waiver, or the Residential Options Waiver who are also prior authorized to receive extended home health services or intermittent nursing services which do not require prior authorization, but are not receiving some or all of the hours of extended home health services or intermittent nursing services as authorized by Defendants. The Advocacy Center and National Health Law Program is appointed to serve as class counsel.[CC] LUMENTUM HOLDINGS: Oclaro Still Defends Karri Class Action ---------------------------------------------------------- Lumentum Holdings Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on August 27, 2019, for the fiscal year ended June 29, 2019, that Oclaro, Inc. continues to defend itself from a class action suit entitled, SaiSravan B. Karri v. Oclaro, Inc., et al. On December 10, 2018, we completed a merger with Oclaro, Inc. ("Oclaro"), a provider of optical components and modules for the long-haul, metro and data center markets. Oclaro's products provide differentiated solutions for optical networks and high-speed interconnects driving the next wave of streaming video, cloud computing, application virtualization and other bandwidth-intensive and high-speed applications. In connection with the company's acquisition of Oclaro, seven lawsuits were filed by purported stockholders of Oclaro challenging the proposed merger (the "Merger"). Two of the seven suits were putative class actions filed against Oclaro, its directors, Lumentum, Prota Merger Sub, Inc. and Prota Merger, LLC: Nicholas Neinast v. Oclaro, Inc., et al., No. 3:18-cv-03112-VC, in the United States District Court for the Northern District of California (filed May 24, 2018) (the "Neinast Lawsuit"); and Adam Franchi v. Oclaro, Inc., et al., No. 1:18-cv-00817-GMS, in the United States District Court for the District of Delaware (filed June 9, 2018) (the "Franchi Lawsuit"). Both the Neinast Lawsuit and the Franchi Lawsuit were voluntarily dismissed with prejudice. The other five suits, styled as Gerald F. Wordehoff v. Oclaro, Inc., et al., No. 5:18-cv-03148-NC (the "Wordehoff Lawsuit"), Walter Ryan v. Oclaro, Inc., et al., No. 3:18-cv-03174-VC (the "Ryan Lawsuit"), Jayme Walker v. Oclaro, Inc., et al., No. 5:18-cv-03203-EJD (the "Walker Lawsuit"), Kevin Garcia v. Oclaro, Inc., et al., No. 5:18-cv-03262-VKD (the "Garcia Lawsuit"), and SaiSravan B. Karri v. Oclaro, Inc., et al., No. 3:18-cv-03435-JD (the "Karri Lawsuit" and, together with the other six lawsuits, the "Lawsuits"), were filed in the United States District Court for the Northern District of California on May 25, 2018, May 29, 2018, May 30, 2018, May 31, 2018, and June 9, 2018, respectively. These five Lawsuits named Oclaro and its directors as defendants only and did not name Lumentum. The Wordehoff, Ryan, Walker, and Garcia Lawsuits have been voluntarily dismissed, and the Wordehoff, Ryan, and Walker dismissals were with prejudice. The Karri Lawsuit has not yet been dismissed. The Ryan Lawsuit was, and the Karri Lawsuit is, a putative class action. The Lawsuits generally alleged, among other things, that Oclaro and its directors violated Section 14(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and Rule 14a-9 promulgated thereunder by disseminating an incomplete and misleading Form S-4, including proxy statement/prospectus. The Lawsuits further alleged that Oclaro's directors violated Section 20(a) of the Exchange Act by failing to exercise proper control over the person(s) who violated Section 14(a) of the Exchange Act. The remaining Lawsuit (the Karri Lawsuit) currently purports to seek, among other things, damages to be awarded to the plaintiff and any class if the Merger is consummated, and litigation costs, including attorneys’ fees. The defendants intend to defend the Karri Lawsuit vigorously. No further updates were provided in the Company's SEC report. Lumentum Holdings Inc. manufactures and sells optical and photonic products in the Americas, the Asia-Pacific, Europe, the Middle East, and Africa. The company operates through two segments, Optical Communications and Commercial Lasers. Lumentum Holdings Inc. was incorporated in 2015 and is headquartered in Milpitas, California. LVNV FUNDING: Bowman Files Class Suit under FDCPA ------------------------------------------------- A class action lawsuit has been filed against LVNV Funding LLC. The case is styled as Pia Bowman, on behalf of herself individually and all others similarly situated, Plaintiff v. LVNV Funding LLC, Defendant, Case No. 1:19-cv-08078 (S.D. N.Y., Aug. 28, 2019). The docket of the case states the nature of suit as Consumer Credit filed pursuant to the Fair Debt Collection Practices Act. LVNV Funding, LLC is a debt purchasing agency.[BN] The Plaintiff is represented by: Novlette Rosemarie Kidd, Esq. Fagenson & Puglisi 450 Seventh Avenue, Suite 704 New York, NY 10123 Tel: (212) 268-2128 Fax: (212) 268-2127 Email: nkidd@fagensonpuglisi.com MACHOL & JOHANNES: Class Settlement in A. Blanks Suit Has Final OK ------------------------------------------------------------------ The United States District Court for the District of Colorado issued an Order granting Plaintiff Alannah Blanks' Unopposed Motion for Final Approval of Class Action Settlement in the case captioned ALANNAH BLANKS, on behalf of herself and all others similarly situated, Plaintiff, v. MACHOL & JOHANNES, LLC, Defendant. Civil Action No. 18-cv-02291-CMA-KMT. (D. Colo.). Settlement Classes: Pursuant to Federal Rule of Civil Procedure 23(b)(3), the Court certifies two classes (the Settlement Classes, composed of Class Members): The FCRA Settlement Class includes all Colorado consumers who have had their TransUnion consumer reports/credit scores published in various judicial court actions by Defendant within two years of the date of the filing of this actionand The FDCPA Settlement Class includes all Colorado consumers who have had their TransUnion consumer reports/credit scores published in various judicial court actions by Defendant within one year of the date of the filing of this action. Class Representative and Class Counsel: The Court finally certifies Plaintiff Alannah Blanks as the Class Representative and Thomas L. Lyons, Jr. as Class Counsel. Settlement Approval: The Court finds that the settlement of the lawsuit, on the terms and conditions set forth in the Settlement Agreement , is in all respects fundamentally fair, reasonable, adequate, and in the best interest of the Class Members, especially in light of the benefits to the Class Members; the strength of the Plaintiff's case; the complexity, expense, and probable duration of further litigation; the risk and delay inherent in possible appeals; and, the limited amount of any potential total recovery for the class. Service Award for Class Representative: The Court approves a service award of $5,000.00 to the Class Representative, Plaintiff Alannah Blanks. Attorneys' Fees: The Court approves attorneys' fees of $50,000.00 to be paid to Class Counsel. A full-text copy of the District Court's dated August 22, 2019 Order is available at https://tinyurl.com/yxfc76uv from Leagle.com. Alannah Blanks, on behalf of herself and all others similarly situated, Plaintiff, represented by Thomas John Lyons, Jr., Consumer Justice Center, P.A., 367 Commerce Court, Vadnais Heights, MN 55127 Machol & Johannes, LLC, Defendant, represented by Alan Daniel Schindler, Timmins, LLC & Edward P. Timmins, Timmins, LLC, 450 E 17th Ave Unit 210, Denver, CO, 80203-1254 MCNEIL GROUP: Agrees to Certification of Class in Harbour Suit -------------------------------------------------------------- The parties in the lawsuit titled William Harbour, Individually and on behalf of other members of the general public similarly situated v. McNeil Group, Inc d/b/a Pinnacle Metal Products, Case No. 2:19-cv-01545-EAS-CMV (S.D. Ohio), jointly agree to conditionally certify the collective action and provide notice to the putative class members under the Fair Labor Standards Act. The Parties jointly submit as Exhibit A the proposed Notice and Consent to Join forms ("Notice Packet") to be authorized by the Court. The Parties agree that within 14 days of the Court entering an Order approving the Parties Joint Stipulation, the Defendant shall provide to the Plaintiff's Counsel a list containing the names, last known addresses (including zip code), phone numbers, and e-mail addresses of these employees: All current and former hourly employees of Defendant, who worked over 40 hours in any workweek during the previous three (3) years through the date of final disposition of this case, and were not paid time and half for the hours they worked over 40 because of Defendant's use of "comp time" or its practice to bank hours worked over 40 in any given workweek to apply them to subsequent workweeks. The Plaintiff's counsel shall mail Exhibit A to the Putative Collective Class Members via First Class U.S. Mail within 7 days of receiving the list. The Putative Collective Class Members shall have 60 days from the date the Notice Packet is mailed to return their Consent to Join form and opt-in to this case. The Plaintiff's counsel will mail a reminder post-card to the Putative Collective Class Members via First Class U.S. Mail 30 days after the initial mailing of the Notice Packet. The Plaintiff's counsel may e-mail the Notice Packet to all Putative Collective Class Members whose Notice Packets are returned as "undeliverable" by the United States Post Office. If there is no e-mail address for the Putative Collective Class Member, then Plaintiff's counsel may call the Putative Collective Class Member only to obtain the current mailing address or e-mail address to re-mail the Notice Packet. Neither party shall contact any of the Putative Collective Class Members for the purpose of discussing the subject matter of or their participation in this lawsuit through the end of the opt-in period, except that either counsel may respond to inquiries from the Putative Collective Class Members during this time. The Plaintiff's Counsel may contact the Putative Collective Class Members after they have opted in. Nothing in the Stipulation shall be construed as a prohibition on the Defendant's interactions with any of the potential opt-in plaintiffs in the normal course of their business.[CC] The Plaintiff is represented by: Matthew J.P. Coffman, Esq. COFFMAN LEGAL, LLC 1550 Old Henderson Rd., Suite 126 Columbus, OH 43220 Telephone: (614) 949-1181 Facsimile: (614) 386-9964 E-mail: mcoffman@mcoffmanlegal.com The Defendant is represented by: Sara H. Jodka, Esq. DICKINSON WRIGHT PLLC 150 E. Gay Street, Suite 2400 Columbus, OH 43215 Telephone: (614) 744-2943 Facsimile: (844) 670-6009 E-mail: sjodka@dickinsonwright.com METROPOLITAN LIFE: 9th Circuit Appeal in Martin Suit Still Pending ------------------------------------------------------------------ Metropolitan Life Insurance Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 8, 2019, for the quarterly period ended June 30, 2019, that the appeal to the U.S. Court of Appeals for the Ninth Circuit in the case, Martin v. Metropolitan Life Insurance Company, is still pending. Plaintiffs filed this putative class action lawsuit on behalf of themselves and all California persons who have been charged compound interest by Metropolitan Life Insurance Company in life insurance policy and/or premium loan balances within the last four years. Plaintiffs allege that Metropolitan Life Insurance Company has engaged in a pattern and practice of charging compound interest on life insurance policy and premium loans without the borrower authorizing such compounding, and that this constitutes an unlawful business practice under California law. Plaintiffs assert causes of action for declaratory relief, violation of California's Unfair Competition Law and Usury Law, and unjust enrichment. Plaintiffs seek declaratory and injunctive relief, restitution of interest, and damages in an unspecified amount. On April 12, 2016, the court granted Metropolitan Life Insurance Company's motion to dismiss. Plaintiffs appealed this ruling to the United States Court of Appeals for the Ninth Circuit. The Company intends to defend this action vigorously. No further updates were provided in the Company's SEC report. Metropolitan Life Insurance Company, together with its subsidiaries, provides insurance, annuities, employee benefits, and asset management services in the United States. The company was incorporated in 1868 and is based in New York, New York. Metropolitan Life Insurance Company is a subsidiary of MetLife, Inc. METROPOLITAN LIFE: Continues to Defend Miller Class Action ---------------------------------------------------------- Metropolitan Life Insurance Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 8, 2019, for the quarterly period ended June 30, 2019, that the company continues to defend a class action suit entitled, Miller, et al. v. Metropolitan Life Insurance Company (S.D.N.Y., filed January 4, 2019). Plaintiff filed a second amended complaint in this putative class action, purporting to assert claims on behalf of all persons who replaced their MetLife Optional Term Life or Group Universal Life policy with a Group Variable Universal Life policy wherein Metropolitan Life Insurance Company allegedly charged smoker rates for certain non-smokers. Plaintiff seeks unspecified compensatory and punitive damages, as well as other relief. The Company intends to defend this action vigorously. No further updates were provided in the Company's SEC report. Metropolitan Life Insurance Company, together with its subsidiaries, provides insurance, annuities, employee benefits, and asset management services in the United States. The company was incorporated in 1868 and is based in New York, New York. Metropolitan Life Insurance Company is a subsidiary of MetLife, Inc. METROPOLITAN LIFE: Still Defends Julian & McKinney Suit ------------------------------------------------------- Metropolitan Life Insurance Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 8, 2019, for the quarterly period ended June 30, 2019, that the company continues to defend a class action suit entitled, Julian & McKinney v. Metropolitan Life Insurance Company (S.D.N.Y., filed February 9, 2017). Plaintiffs filed this putative class and collective action on behalf of themselves and all current and former long-term disability ("LTD") claims specialists between February 2011 and the present for alleged wage and hour violations under the Fair Labor Standards Act, the New York Labor Law, and the Connecticut Minimum Wage Act. The suit alleges that Metropolitan Life Insurance Company improperly reclassified the plaintiffs and similarly situated LTD claims specialists from non-exempt to exempt from overtime pay in November 2013. As a result, they and members of the putative class were no longer eligible for overtime pay even though they allege they continued to work more than 40 hours per week. Plaintiffs seek unspecified compensatory and punitive damages, as well as other relief. On March 22, 2018, the Court conditionally certified the case as a collective action, requiring that notice be mailed to LTD claims specialists who worked for the Company from February 8, 2014 to the present. The Company intends to defend this action vigorously. No further updates were provided in the Company's SEC report. Metropolitan Life Insurance Company, together with its subsidiaries, provides insurance, annuities, employee benefits, and asset management services in the United States. The company was incorporated in 1868 and is based in New York, New York. Metropolitan Life Insurance Company is a subsidiary of MetLife, Inc. MHC LAKE GEORGE: Murphy Alleges Violation under ADA --------------------------------------------------- MHC Lake George, L.L.C. is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as James Murphy, on behalf of himself and all other persons similarly situated, Plaintiff v. MHC Lake George, L.L.C. and MHC Property Management, LLC, Defendants, Case No. 1:19-cv-08058 (S.D. N.Y., Aug. 28, 2019). MHC Lake George, L.L.C. owns and operates premier manufactured housing communities in the western United States.[BN] The Plaintiff is represented by: Zare Khorozian, Esq. Zare Khorozian Law, LLC 1047 Anderson Avenue Fort Lee, NJ 07024 Tel: (201) 957-7269 Email: zare@zkhorozianlaw.com MIDLAND CREDIT: Atwood Sues over Debt Collection Practices ---------------------------------------------------------- ROCKY L. ATWOOD, individually and on behalf of all others similarly situated, Plaintiff v. MIDLAND CREDIT MANAGEMENT INC., Defendant, Case No. 3:19-cv-01514-L-RBB (S.D. Cal., Aug. 13, 2019) seeks to stop the Defendant's unfair and unconscionable means to collect a debt. Midland Credit Management, Inc., a licensed debt collector, assists customers in resolving past-due financial obligations through various education and payment plans. The company was founded in 1953 and is based in San Diego, California. Midland Credit Management, Inc. operates as a subsidiary of Encore Capital Group, Inc. [BN] The Plaintiff is represented by: Nicholas M. Wajda, Esq. WAJDA LAW GROUP, APC 3111 Camino Del Rio North, Suite 400 San Diego, CA 92108 Telephone: (619) 649-2492 E-mail: nick@wajdalawgroup.com - and - James C. Vlahakis, Esq. SULAIMAN LAW GROUP, LTD. 2500 South Highland Avenue, Suite 200 Lombard, IL 60148 Telephone: (630) 581-5456 E-mail: jvlahakis@sulaimanlaw.com MIDLAND CREDIT: Balluch Sues over Debt Collection Practices ----------------------------------------------------------- MICHAEL BALLUCH, individually and on on behalf of all others similarly situated, Plaintiff v. MIDLAND CREDIT MANAGEMENT, INC., Defendant, Case No. 3:19-cv-01514-L-RBB (S.D. Cal., Aug. 13, 2019) seeks to stop the Defendant's unfair and unconscionable means to collect a debt. Midland Credit Management, Inc., a licensed debt collector, assists customers in resolving past-due financial obligations through various education and payment plans. The company was founded in 1953 and is based in San Diego, California. Midland Credit Management, Inc. operates as a subsidiary of Encore Capital Group, Inc. [BN] The Plaintiff is represented by: Nicholas M. Wajda, Esq. WAJDA LAW GROUP, APC 3111 Camino Del Rio, Suite 400 San Diego, CA 92108 Telephone: (619) 649-2492 E-mail: nick@wajdalawgroup.com - and - James C. Vhalakis, Esq. SULAIMAN LAW GROUP, LTD 2500 South Highland Avenue, Suite 200 Lombard, IL 60148 Telephone: (630) 581-5456 E-mail: jvlahakis@sulaimanlaw.com MIDWEST RECEIVABLE: Court Stays Bid for Class Certification ----------------------------------------------------------- In the class action lawsuit styled as PAULA RODZ, the Plaintiff, v. MIDWEST RECEIVABLE SOLUTIONS, LLC, the Defendant, Case No. 19-CV-1191 (E.D. Wisc.), the Hon. Judge William E. Duffin entered an order on Aug. 27, 2019, granting Plaintiff's motion to stay further proceedings on the motion for class certification. On August 19, 2019, the plaintiff filed a class action complaint. At the same time, she filed what the court commonly refers to as a "protective" motion for class certification. The Plaintiff moved to certify the class described in the complaint but also moved the court to stay further proceedings on that motion. In Damasco v. Clearwire Corp., 662 F.3d 891, 896 (7th Cir. 2011), the court suggested that class‐action plaintiffs "move to certify the class at the same time that they file their complaint." "The pendency of that motion protects a putative class from attempts to buy off the named plaintiffs." However, because parties are generally unprepared to proceed with a motion for class certification at the beginning of a case, the Damasco court suggested that the parties "ask the district court to delay its ruling to provide time for additional discovery or investigation." The Plaintiff's motion to stay further proceedings on the motion for class certification is granted. The parties are relieved from the automatic briefing schedule set forth in Civil Local Rule 7(b) and (c). Moreover, for administrative purposes, it is necessary that the Clerk terminate the plaintiff’s motion for class certification. However, the motion will be regarded as pending to serve its protective purpose under Damasco.[CC] MISS LASER: Underpays Technicians, Caicedo Soto Suit Alleges ------------------------------------------------------------ MICHELLE CAICEDO SOTO, individually and on behalf all others similarly situated, Plaintiff v. MISS LASER INC. D/B/A MISS LASER; FRIDA KOYUNOV; EMANUEL ARABOV; and JOSEF YUNAEV, Defendants, Case No. 1:19-cv-04745 (E.D.N.Y., Aug. 17, 2019) seeks to recover from the Defendants unpaid wages and overtime compensation, interest, liquidated damages, attorneys' fees, and costs under the Fair Labor Standards Act. The Plaintiff Caicedo Soto was employed by the Defendants as technician. Miss Laser Inc. d/b/a Miss Laser offers laser hair removal treatments. [BN] The Plaintiff is represented by: John Troy, Esq. TROY LAW, PLLC 41-25 Kissena Boulevard Suite 119 Flushing, NY 11355 Telephone: (718) 762-1324 MONAT GLOBAL: Jones Alleges Violation under ADA ----------------------------------------------- Monat Global Corp. is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Kahlimah Jones, individually and as the representative of a class of similarly situated persons, Plaintiff v. Monat Global Corp., Defendant, Case No. 1:19-cv-04913 (E.D. N.Y., Aug. 28, 2019). Monat Global Corp. is an international hair product corporation.[BN] The Plaintiff is represented by: Dan Shaked, Esq. Shaked Law Group, P.C. 14 Harwood Court, Suite 415 Scarsdale, NY 10583 Tel: (917) 373-9128 Email: shakedlawgroup@gmail.com MUNCHERY, INC: Phillips et al. Seek to Certify Class ---------------------------------------------------- In the class action lawsuit styled as Joshua James Eaton Phillips and Christina Brooks, on behalf of themselves and all others similarly situated, the Plaintiffs, vs. Munchery, Inc., the Defendant, Case No. 3:19-cv-00469-JSC (N.D. Cal.), the Plaintiffs move the Court for an order, in furtherance of their claims under the Worker Adjustment Retraining and Notification and California Labor Code: "(a) certifying a 28 class, pursuant to Rule 23(a) and 23(b)(3) of the Federal Rules of Civil Procedure, comprised of (i) Plaintiffs and all persons who worked at, were based out of, received assignments from, or reported to Defendant's facility at 200 Shaw Road, South San Francisco, California, (ii) who were terminated without cause, as part of, or as the result of, a mass layoff or plant closing ordered by Defendant and carried out on or about January 21, 2019 and within 30 days of that date or in reasonable anticipation of or as the reasonably foreseeable consequence of the mass layoff or plant closing ordered by Defendant on or about January 21, 2019, (iii) who are "affected employees" within the meaning of 29 U.S.C. section 2101(a)(5) and (iv) who have not filed a timely request to opt-out of the class, (b) appointing Outten & Golden LLP as Class Counsel, (c) appointing Plaintiffs as the Class Representatives, (d) approving the form and manner of Notice, and (e) and such further relief as this Court may deem proper."[CC] Attorneys for Plaintiffs and the other similarly situated former employees are: Gail C. Lin, Esq. OUTTEN & GOLDEN LLP One California Street, Suite 1250 San Francisco, CA 94111 Telephone: (415) 638-8800 Facsimile: (415) 638-8810 E-mail: gl@outtengolden.com - and - Jack A. Raisner, Esq. René S. Roupinian, Esq. OUTTEN & GOLDEN LLP 685 Third Avenue, 25th Floor New York, NY 10017 Telephone: (212) 245-1000 E-mail: jar@outtengolden.com rsr@outtengolden.com NEBRASKA: Court Refuses to Strike Expert Declarations in Sabata --------------------------------------------------------------- The United States District Court for the District of Nebraska issued an Order issued an Order denying Defendants' Motion to Strike Expert Declarations in the case captioned HANNAH SABATA, et al, on behalf of themselves and all others similarly situated, Plaintiffs, v. NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICES, et al., Defendants. No. 4:17CV3107. (D. Neb.). The Plaintiffs, inmates within the custody and control of the NDCS, filed this proposed class action against Defendants NDCS and its administrators and medical staff, asserting violations of the plaintiffs' civil and constitutional rights. Plaintiffs' claims arise out of their allegations that Nebraska state prisons are overcrowded, under-resourced, and understaffed, and that prisoners are consistently deprived of adequate health care, including medical, dental, and mental health care, and denied accommodations for their disabilities. The Defendants move to strike the entire expert declarations of Margo Schlanger, Eldon Vail, Craig Haney and Pablo Stewart and portions of the expert declarations of Jay Shulman and Marc Stern offered by Plaintiffs in support of their Motion for Class Certification. Rule 702 of the Federal Rules of Evidence provides that an expert witness may offer an opinion if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue (b) the testimony is based on sufficient facts or data (c) the testimony is the product of reliable principles and methods; and(d) the expert has reliably applied the principles and methods to the facts of the case. In this case, the Court finds that the expert opinions offered by Margo Schlanger, Eldon Vail, Craig Haney, Pablo Stewart, Jay Shulman, and Marc Stern are sufficiently reliable in light of the available evidence and purpose for which they were offered. Each declaration sets forth the expert's qualifications, experience, and facts and data upon which the expert's opinions were based. As stated above, at the class certification stage the Court is to examine the reliability of the expert testimony in light of the existing state of the evidence and with Rule 23's requirements in mind. The proponent of class certification must demonstrate that the Rule 23(a) requirements of numerosity, commonality, typicality, and fair and adequate representation exist and that one of the three subsections of Rule 23(b) have been met. The Court concludes that Plaintiffs' experts' opinions assist in this determination. In particular, the experts' opinions relate to the commonality requirement, which requires the plaintiff to demonstrate that the class members `have suffered the same injury and that a classwide proceeding will generate common answers apt to drive the resolution of the litigation. The expert opinions also relate to typicality, which is generally considered to be satisfied if the claims or defenses of the representatives and the members of the class stem from a single event or are based on the same legal or remedial theory and means that there are other members of the class who have the same or similar grievances as the plaintiff. Although Defendants suggest that Plaintiffs' experts' opinions are deficient because they do not address all of the requirements of Rule 23(a), there is no such requirement that the experts do so. The Defendants further argue that the expert declarations should be stricken because they are based on insufficient or inadequate data and facts, including some opinions offered without the expert visiting a Nebraska prison or citing Nebraska-specific statistics. However, as a general rule, the factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility. Such testimony should be excluded only if it 'is so fundamentally unsupported that it can offer no assistance to the jury.' Here, the court is equipped to evaluate and determine what weight, if any, to afford relevant expert testimony when determining whether Plaintiffs satisfied the prerequisites of Rule 23 to certify the class and subclasses. A full-text copy of the District Court's dated August 22, 2019 Order is available at https://tinyurl.com/y3648hwv from Leagle.com. Hannah Sabata, on behalf of themselves and all others similarly situated, Dylan Cardeilhac, on behalf of themselves and all others similarly situated, James Curtright, on behalf of themselves and all others similarly situated, Jason Galle, on behalf of themselves and all others similarly situated, Richard Griswold, on behalf of themselves and all others similarly situated, Michael Gunther, on behalf of themselves and all others similarly situated, Angelic Norris, on behalf of themselves and all others similarly situated, Isaac Reeves, on behalf of themselves and all others similarly situated, Zoe Rena, on behalf of themselves and all others similarly situated & Brandon Sweetser, on behalf of themselves and all others similarly situated, Plaintiffs, represented by Aaron T. Goodman -- aaron.goodman@dlapiper.com -- DLA PIPER LAW FIRM, pro hac vice, Amy Fettig, AMERICAN CIVIL LIBERTIES UNION -- NATIONAL PRISON PROJECT, 915 15th Street, NW, 7th Floor, Washington DC 2005, pro hac vice, Amy A. Miller, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, 915 15th Street, NW, 7th Floor, Washington DC 2005, Andrew D. Day -- andrew.day@dlapiper.com -- DLA PIPER US LAW FIRM, pro hac vice, Anna P. Bitencourt Emilio, NATIONAL ASSOCIATION OF THE DEAF LAW & ADVOCACY CENTER, 8630 Fenton Street Suite 820 Silver Springs, MD 20910, pro hac vice, Benjamin Bien-Kahn -- bbien-kahn@rbgg.com -- ROSEN, BIEN LAW FIRM, pro hac vice, Brittany Shrader, NATIONAL ASSOCIATION OF THE DEAF LAW & ADVOCACY CENTER, 8630 Fenton Street Suite 820 Silver Springs, MD 20910, pro hac vice, Christopher M. Young -- christopher.young@dlapiper.com -- DLA PIPER LAW FIRM, pro hac vice, David C. Fathi, AMERICAN CIVIL LIBERTIES UNION -- NATIONAL PRISON PROJECT, 915 15th Street, NW, 7th Floor, Washington DC 2005, pro hac vice, Dawn M. Jenkins -- dawn.jenkins@dlapiper.com, DLA PIPER LAW FIRM, pro hac vice Nebraska Department of Correctional Services, Scott Frakes, In his official capacity as Director of the Nebraska Department of Correctional Services, Harbans Deol, In his official capacity as Director of Health Services of the Nebraska Department of Correctional Services, Nebraska Board of Parole & Julie Micek, In her official capacity as the Board of Parole Acting Parole Administrator, Defendants, represented by Benjamin M. Goins, ATTORNEY GENERAL'S OFFICE, Danielle L. Rowley, ATTORNEY GENERAL'S OFFICE, Katherine O'Brien, ATTORNEY GENERAL'S OFFICE, Ryan S. Post, ATTORNEY GENERAL'S OFFICE & Scott R. Straus, ATTORNEY GENERAL'S OFFICE. Marshall Lux, Movant, represented by Shawn D. Renner -- srenner@clinewilliams.com -- CLINE, WILLIAMS LAW FIRM. NETAPP INC: Faces Securities Class Suit in California ----------------------------------------------------- NetApp, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 19, 2019, for the quarterly period ended July 26, 2019, that the company faces a purported securities class action lawsuit in the United States District Court for the Northern District of California. On August 14, 2019, a purported securities class action lawsuit was filed in the United States District Court for the Northern District of California, naming as defendants NetApp and certain of its executive officers. The complaint alleges that the defendants violated Section 10(b) and 20(a) of the Securities Exchange Act of 1934, as amended, and SEC Rule 10b-5, by making materially false or misleading statements with respect to the company's financial guidance for fiscal 2020, as provided on May 22, 2019. Members of the alleged class are purchasers of the Company's stock between May 22, 2019 and August 1, 2019, the date the company provided revised financial guidance for fiscal 2020. The complaint alleges unspecified damages based on the decline in the market price of our shares following the issuance of the revised guidance on August 1, 2019. NetApp said, "We believe the complaint is without merit and intend to defend the case vigorously." NetApp, Inc. (NetApp), incorporated on November 1, 2001, provides software, systems and services to manage and store customer data. The Company enables enterprises, service providers, governmental organizations, and partners to envision, deploy and evolve their information technology (IT) environments. The company is based in Sunnyvale, California. NOVAVIVE USA: Fauley's Bid to Certify Class Denied as Premature --------------------------------------------------------------- The Clerk of the U.S. District Court for the Northern District of Illinois made a docket entry in the case entitled Shaun Fauley v. NovaVive USA Inc., et al., Case No. 1:19-cv-05301 (N.D. Ill.), relating to the motion for class certification pending before the Honorable Edmond E. Chang. The minute entry states that the Plaintiff has filed a motion for class certification, but it is premature because none of the necessary discovery has been finished. To the extent that the Plaintiff filed the motion to prevent mootness if the defense were to offer full relief, that is no longer necessary after the decision in Campbell−Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016). To the extent that the Plaintiff is concerned about the question left open by Campbell−Ewald (whether payment of funds into an account to be paid to Plaintiff or deposited with the Court should require entry of judgment), the premature certification motion is still unnecessary, because the Court will not enter judgment without allowing the Plaintiff to file an objection to entry of judgment, including whether the relief is full or whether that procedure is even proper, according to the Notification of Docket Entry. Hence, the motion for class certification is denied without prejudice.[CC] OMEGA HEALTHCARE: Appeal in Securities Class Action Ongoing ----------------------------------------------------------- Omega Healthcare Investors, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 8, 2019, for the quarterly period ended June 30, 2019, that the appeal in the consolidated class action suit in New York remains pending. On November 16, 2017, a purported securities class action complaint captioned Dror Gronich v. Omega Healthcare Investors, Inc., C. Taylor Pickett, Robert O. Stephenson, and Daniel J. Booth was filed against the Company and certain of its officers in the United States District Court for the Southern District of New York (the "Court"), Case No. 1:17-cv-08983-NRB. On November 17, 2017, a second purported securities class action complaint captioned Steve Klein v. Omega Healthcare Investors, Inc., C. Taylor Pickett, Robert O. Stephenson, and Daniel J. Booth was filed against the Company and the same officers in the United States District Court for the Southern District of New York, Case No. 1:17-cv-09024-NRB. Thereafter, the Court considered a series of applications by various shareholders to be named lead plaintiff, consolidated the two actions and designated Royce Setzer as the lead plaintiff. Pursuant to a Scheduling Order entered by the Court, lead plaintiff Setzer and additional plaintiff Earl Holtzman filed a Consolidated Amended Class Action Complaint on May 25, 2018 (the "Securities Class Action"). The Securities Class Action purports to be a class action brought on behalf of shareholders who acquired the Company's securities between May 3, 2017 and October 31, 2017. The Securities Class Action alleges that the defendants violated the Securities Exchange Act of 1934, as amended (the "Exchange Act"), by making materially false and/or misleading statements, and by failing to disclose material adverse facts about the Company's business, operations, and prospects, including the financial and operating results of one of the Company's operators, the ability of such operator to make timely rent payments, and the impairment of certain of the Company's leases and the uncollectibility of certain receivables. The Securities Class Action, which purports to assert claims for violations of Section 10(b) of the Exchange Act and Rule 10b-5 promulgated thereunder, as well as Section 20(a) of the Exchange Act, seeks an unspecified amount of monetary damages, interest, fees and expenses of attorneys and experts, and other relief. The Company and the officers named in the Securities Class Action filed a Motion to Dismiss on July 17, 2018 and the Court heard Oral Argument on February 13, 2019. On March 25, 2019, the Court entered an order dismissing with prejudice all claims against all defendants. On April 22, 2019, the plaintiffs filed a Notice of Appeal with the United States District Court for the Southern District of New York, notifying the Court that they are appealing the Court's order of dismissal with prejudice to the United States Court of Appeals for the Second Circuit. On June 10, 2019, the plaintiffs filed their appeal brief with the United States Court of Appeals for the Second Circuit, on July 15, 2019, the Company filed its opposition brief, and on July 29, 2019, the Plaintiffs filed their reply brief in further support of the appeal. Omega Healthcare Investors, Inc. is a real estate investment trust (REIT). The Company invests in and provides financing to the long-term care industry. Omega operates healthcare facilities in the United States which are operated by independent healthcare operating companies. The company is based in Hunt Valley, Maryland. OMEGA HEALTHCARE: Appointment of Lead Pltf. in Bushansky Pending ---------------------------------------------------------------- Omega Healthcare Investors, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 8, 2019, for the quarterly period ended June 30, 2019, that the motion for appointment of lead plaintiff in the class action suit entitled, Bushansky v. MedEquities Realty Trust, Inc., et al., remains pending. On May 17, 2019, Omega Healthcare Investors, Inc. (Omega) and OHI Healthcare Properties Limited Partnership (Omega OP) completed their merger with MedEquities Realty Trust, Inc. ("MedEquities") and its subsidiary operating partnership and the general partner of its subsidiary operating partnership. Pursuant to the Agreement and Plan of Merger, as amended by the First Amendment to the Agreement and Plan of Merger, dated March 26, 2019, (the "Merger Agreement") Omega acquired MedEquities and MedEquities was merged with and into Omega (the "Merger") at the effective time of the Merger with Omega continuing as the surviving company. On March 17, 2019, a purported stockholder of MedEquities filed a class action lawsuit against MedEquities and members of the MedEquities board of directors in the United States District Court for the Middle District of Tennessee. Bushansky v. MedEquities Realty Trust, Inc., et al., Case 3:19-cv-00231. The complaint alleges, among other things, that MedEquities and its directors violated Section 14(a) of the Securities Exchange Act by making materially incomplete and misleading statements in, and/or omitting certain information that is material to stockholders from, the Combined Proxy Statement and Form S-4, relating to the merger. The complaint seeks, among other things, an injunction preventing the consummation of the merger and, in the event the merger is consummated, rescission of the merger or damages, plus attorneys' fees and costs. By Stipulation and Order dated May 15, 2019, the United States District Court for the Middle District of Tennessee stayed all deadlines in the action pending, among other things, the appointment of a lead plaintiff and the designation of an operative complaint or the filing of an amended complaint. By Order filed on July 9, 2019, the Court, in response to a joint motion by the parties, continued the Initial Case Management Conference scheduled for July 16, 2019 and confirmed that all the deadlines in the cases were stayed until after a ruling on any motion to dismiss the operative complaint or amended complaint or until Defendants have filed an answer to the complaint or amended complaint. In addition, the plaintiff in this action on July 10, 2019 filed a motion asking that he be appointed lead plaintiff and that his counsel be appointed lead counsel. Omega Healthcare Investors, Inc. is a real estate investment trust (REIT). The Company invests in and provides financing to the long-term care industry. Omega operates healthcare facilities in the United States which are operated by independent healthcare operating companies. The company is based in Hunt Valley, Maryland. OMEGA HEALTHCARE: MedEquities Realty Trust Faces Scarantino Suit ---------------------------------------------------------------- Omega Healthcare Investors, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 8, 2019, for the quarterly period ended June 30, 2019, that MedEquities Realty Trust, Inc. is defending against a class action suit entitled, Scarantino v. McRoberts et al. On May 17, 2019, Omega Healthcare Investors, Inc. (Omega) and OHI Healthcare Properties Limited Partnership (Omega OP) completed their merger with MedEquities Realty Trust, Inc. ("MedEquities") and its subsidiary operating partnership and the general partner of its subsidiary operating partnership. Pursuant to the Agreement and Plan of Merger, as amended by the First Amendment to the Agreement and Plan of Merger, dated March 26, 2019, (the "Merger Agreement") Omega acquired MedEquities and MedEquities was merged with and into Omega (the "Merger") at the effective time of the Merger with Omega continuing as the surviving company. On February 22, 2019, a purported stockholder of MedEquities filed a derivative and class action lawsuit against MedEquities, members of the MedEquities board of directors, and the Company in the Circuit Court for Baltimore City, Maryland. Scarantino v. McRoberts et al., Case No. 24-c-19-001027, alleges, among other things, breaches of fiduciary duties by the MedEquities' board of directors in connection with its approval of the merger and the omission from the Form S-4 of certain information that is material to stockholders. The complaint seeks, among other things, an injunction preventing the consummation of the merger and, in the event the merger is consummated, rescission of the merger or damages, plus attorneys' fees and costs. The plaintiff has not served summonses upon the defendants in this action. Omega Healthcare Investors, Inc. is a real estate investment trust (REIT). The Company invests in and provides financing to the long-term care industry. Omega operates healthcare facilities in the United States which are operated by independent healthcare operating companies. The company is based in Hunt Valley, Maryland. OMEGA HEALTHCARE: Russell Suit v. MedEquities Realty Trust Ongoing ------------------------------------------------------------------ Omega Healthcare Investors, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 8, 2019, for the quarterly period ended June 30, 2019, that MedEquities Realty Trust, Inc. continues to defend a class action suit entitled, Russell v. MedEquities Realty Trust, Inc., et al., Case No. C-03-CV-19-000721. On May 17, 2019, Omega Healthcare Investors, Inc. (Omega) and OHI Healthcare Properties Limited Partnership (Omega OP) completed their merger with MedEquities Realty Trust, Inc. ("MedEquities") and its subsidiary operating partnership and the general partner of its subsidiary operating partnership. Pursuant to the Agreement and Plan of Merger, as amended by the First Amendment to the Agreement and Plan of Merger, dated March 26, 2019, (the "Merger Agreement") Omega acquired MedEquities and MedEquities was merged with and into Omega (the "Merger") at the effective time of the Merger with Omega continuing as the surviving company. On March 29, 2019, a purported stockholder of MedEquities filed a class action lawsuit against MedEquities and members of the MedEquities board of directors in the Circuit Court of Maryland, Baltimore City, Maryland alleging, among other things, that MedEquities and members of the MedEquities board of directors breached their fiduciary duties by: (i) failing to fulfill their fiduciary oversight function; (ii) authorizing the filing of a materially incomplete and misleading proxy statement/prospectus; and (iii) authorizing in the company's Amended and Restated Bylaws the enactment of an exclusive venue designation whereby the Circuit Court for Baltimore City, Maryland is the sole and exclusive forum for certain litigation against the company, or if that court does not have jurisdiction, the U.S. District Court for the District of Maryland, Baltimore Division (the "Exclusive Venue Bylaw"). Russell v. MedEquities Realty Trust, Inc., et al., Case No. C-03-CV-19-000721. The complaint seeks, among other things, an injunction preventing the special meeting of MedEquities stockholders to vote on the transaction and, in the event the transaction is implemented, rescission of the transaction or damages, a declaration that the Exclusive Venue Bylaw is invalid, an injunction preventing the enforcement of the Exclusive Venue Bylaw, and attorneys’ fees and costs. On May 10, 2019, the parties filed a stipulation requiring plaintiff to file, within 30 days of the closing of the merger, an amended complaint or notify defendants that plaintiff does not intend to file an amended complaint, and requiring defendants to respond to plaintiff's pleading or amended pleading within 60 days thereafter. Omega Healthcare said, "As of this date, the plaintiff has neither filed an amended complaint nor notified that he does not intend to file an amended complaint." Omega Healthcare Investors, Inc. is a real estate investment trust (REIT). The Company invests in and provides financing to the long-term care industry. Omega operates healthcare facilities in the United States which are operated by independent healthcare operating companies. The company is based in Hunt Valley, Maryland. ORRSTOWN FINANCIAL: Bid for Protective Order Granted in Part ------------------------------------------------------------ Orrstown Financial Services, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 8, 2019, for the quarterly period ended June 30, 2019, that a court has entered an Order partially granting Orrstown's motion for protective order, ruling that all deposition discovery in the case is stayed pending a decision on The Southeastern Pennsylvania Transportation Authority's (SEPTA's) motion for leave to file a third amended complaint. On May 25, 2012, The Southeastern Pennsylvania Transportation Authority (SEPTA) filed a putative class action complaint in the U.S. District Court for the Middle District of Pennsylvania against the Company, the Bank and certain current and former directors and executive officers (collectively, the "Defendants"). The complaint alleges, among other things, that (i) in connection with the Company's Registration Statement on Form S-3 dated February 23, 2010 and its Prospectus Supplement dated March 23, 2010, and (ii) during the purported class period of March 24, 2010 through October 27, 2011, the Company issued materially false and misleading statements regarding the Company's lending practices and financial results, including misleading statements concerning the stringent nature of the Bank's credit practices and underwriting standards, the quality of its loan portfolio, and the intended use of the proceeds from the Company's March 2010 public offering of common stock. The complaint asserts claims under Sections 11, 12(a) and 15 of the Securities Act of 1933, Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder, and seeks class certification, unspecified money damages, interest, costs, fees and equitable or injunctive relief. Under the Private Securities Litigation Reform Act of 1995 ("PSLRA"), motions for appointment of Lead Plaintiff in this case were due by July 24, 2012. SEPTA was the sole movant and the Court appointed SEPTA Lead Plaintiff on August 20, 2012. Pursuant to the PSLRA and the Court's September 27, 2012 Order, SEPTA was given until October 26, 2012 to file an amended complaint and the Defendants until December 7, 2012 to file a motion to dismiss the amended complaint. SEPTA's opposition to the Defendant's motion to dismiss was originally due January 11, 2013. Under the PSLRA, discovery and all other proceedings in the case were stayed pending the Court's ruling on the motion to dismiss. The September 27, 2012 Order specified that if the motion to dismiss were denied, the Court would schedule a conference to address discovery and the filing of a motion for class certification. On October 26, 2012, SEPTA filed an unopposed motion for enlargement of time to file its amended complaint in order to permit the parties and new defendants to be named in the amended complaint time to discuss plaintiff's claims and defendants' defenses. On October 26, 2012, the Court granted SEPTA's motion, mooting its September 27, 2012 scheduling Order, and requiring SEPTA to file its amended complaint on or before January 16, 2013 or otherwise advise the Court of circumstances that require a further enlargement of time. On January 14, 2013, the Court granted SEPTA's second unopposed motion for enlargement of time to file an amended complaint on or before March 22, 2013. On March 4, 2013, SEPTA filed an amended complaint. The amended complaint expands the list of defendants in the action to include the Company's independent registered public accounting firm and the underwriters of the Company's March 2010 public offering of common stock. In addition, among other things, the amended complaint extends the purported 1934 Exchange Act class period from March 15, 2010 through April 5, 2012. Pursuant to the Court's March 28, 2013 Second Scheduling Order, on May 28, 2013, all defendants filed their motions to dismiss the amended complaint, and on July 22, 2013, SEPTA filed its "omnibus" opposition to all of the defendants' motions to dismiss. On August 23, 2013, all defendants filed reply briefs in further support of their motions to dismiss. On December 5, 2013, the Court ordered oral argument on the Orrstown Defendants' motion to dismiss the amended complaint to be heard on February 7, 2014. Oral argument on the pending motions to dismiss SEPTA's amended complaint was held on April 29, 2014. The Second Scheduling Order stayed all discovery in the case pending the outcome of the motions to dismiss, and informed the parties that, if required, a telephonic conference to address discovery and the filing of SEPTA's motion for class certification would be scheduled after the Court's ruling on the motions to dismiss. On April 10, 2015, pursuant to Court order, all parties filed supplemental briefs addressing the impact of the U.S. Supreme Court's March 24, 2015 decision in Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund on defendants’ motions to dismiss the amended complaint. On June 22, 2015, in a 96-page Memorandum, the Court dismissed without prejudice SEPTA's amended complaint against all defendants, finding that SEPTA failed to state a claim under either the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended. The Court ordered that, within 30 days, SEPTA either seek leave to amend its amended complaint, accompanied by the proposed amendment, or file a notice of its intention to stand on the amended complaint. On July 22, 2015, SEPTA filed a motion for leave to amend under Local Rule 15.1, and attached a copy of its proposed second amended complaint to its motion. Many of the allegations of the proposed second amended complaint are essentially the same or similar to the allegations of the dismissed amended complaint. The proposed second amended complaint also alleges that the Orrstown Defendants did not publicly disclose certain alleged failures of internal controls over loan underwriting, risk management, and financial reporting during the period 2009 to 2012, in violation of the federal securities laws. On February 8, 2016, the Court granted SEPTA's motion for leave to amend and SEPTA filed its second amended complaint that same day. On February 25, 2016, the Court issued a scheduling Order directing: all defendants to file any motions to dismiss by March 18, 2016; SEPTA to file an omnibus opposition to defendants’ motions to dismiss by April 8, 2016; and all defendants to file reply briefs in support of their motions to dismiss by April 22, 2016. Defendants timely filed their motions to dismiss the second amended complaint and the parties filed their briefs in accordance with the Court-ordered schedule, above. The February 25, 2016 Order stays all discovery and other deadlines in the case (including the filing of SEPTA's motion for class certification) pending the outcome of the motions to dismiss. The allegations of SEPTA's second amended complaint disclosed the existence of a confidential, non-public, fact-finding inquiry regarding the Company being conducted by the SEC. As disclosed in the Company's Form 8-K filed on September 27, 2016, on that date the Company entered into a settlement agreement with the SEC resolving the investigation of accounting and related matters at the Company for the periods ended June 30, 2010, to December 31, 2011. As part of the settlement of the SEC's administrative proceedings and pursuant to the cease-and-desist order, without admitting or denying the SEC's findings, the Company, its Chief Executive Officer, its former Chief Financial Officer, its former Executive Vice President and Chief Credit Officer, and its Chief Accounting Officer, agreed to pay civil money penalties to the SEC. The Company agreed to pay a civil money penalty of $1,000,000. The Company had previously established a reserve for that amount which was expensed in the second fiscal quarter of 2016. In the settlement agreement with the SEC, the Company also agreed to cease and desist from committing or causing any violations and any future violations of Securities Act Sections 17(a)(2) and 17(a)(3) and Exchange Act Sections 13(a), 13(b)(2)(A) and 13(b)(2)(B), and Rules 12b-20, 13a-1 and 13a-13 promulgated thereunder. On September 27, 2016, the Orrstown Defendants filed with the Court a Notice of Subsequent Event in Further Support of their Motion to Dismiss the Second Amended Complaint, regarding the settlement with the SEC. The Notice attached a copy of the SEC's cease-and-desist order and briefly described what the Company believed were the most salient terms of the neither-admit-nor-deny settlement. On September 29, 2016, SEPTA filed a Response to the Notice, in which SEPTA argued that the settlement with the SEC did not support dismissal of the second amended complaint. On December 7, 2016, the Court issued an Order and Memorandum granting in part and denying in part defendants’ motions to dismiss SEPTA's second amended complaint. The Court granted the motions to dismiss the Securities Act claims against all defendants, and granted the motions to dismiss the Exchange Act Section 10(b) and Rule 10b-5 claims against all defendants except Orrstown Financial Services, Inc., Orrstown Bank, Thomas R. Quinn, Jr., Bradley S. Everly, and Jeffrey W. Embly. The Court also denied the motions to dismiss the Exchange Act Section 20(a) claims against Quinn, Everly, and Embly. On January 31, 2017, the Court entered a Case Management Order establishing the schedule for the litigation and, on August 15, 2017, it entered a revised Order that, among other things, set the following deadlines: all fact discovery closes on March 1, 2018, and SEPTA's motion for class certification is due the same day; expert merits discovery closes May 30, 2018; summary judgment motions are due by June 26, 2018; the mandatory pretrial and settlement conference is set for December 11, 2018; and trial is scheduled to begin on January 7, 2019. On December 15, 2017, the Orrstown Defendants and SEPTA exchanged expert reports in opposition to and in support of class certification, respectively. On January 15, 2018, the parties exchanged expert rebuttal reports. SEPTA's motion for class certification was due March 1, 2018, with the Orrstown Defendants' opposition due April 2, 2018, and SEPTA’s reply due April 23, 2018. On February 9, 2018, SEPTA filed a Status Report and Request for a Telephonic Status Conference asking the Court to convene a conference to discuss the status of discovery in the case and possible revisions to the case schedule. On February 12, 2018, the Orrstown Defendants filed their status report to provide the Court with a summary of document discovery in the case to date. On February 27, 2018, SEPTA filed an unopposed motion for a continuance of the existing case deadlines pending a status conference with the Court or the issuance of a revised case schedule. On February 28, 2018, the Court issued an Order continuing all case management deadlines until further order of the Court. On March 27, 2018, the Court held a telephonic status conference with the parties to discuss outstanding discovery issues and case deadlines. On May 2, 2018, the parties filed a joint status report. On May 10, 2018, the Court held a follow-up telephonic status conference at which the parties reported on the progress of discovery to date. Party and non-party document discovery in the case has continued. To date, SEPTA has taken a few non-party depositions. On August 9, 2018, SEPTA filed a motion to compel the production of Confidential Supervisory Information (CSI) of non-parties the Board of Governors of the Federal Reserve System (FRB) and the Pennsylvania Department of Banking and Securities, in the possession of Orrstown and third parties. On August 23, 2018, the Orrstown Defendants filed a response to the motion to compel. On August 30, 2018, the FRB filed an unopposed motion to intervene in the Action for the purpose of opposing SEPTA's motion to compel, and on September 27, 2018, the FRB filed its brief in opposition to SEPTA's motion. On October 11, 2018, SEPTA filed its reply brief in support of its motion to compel. On February 12, 2019, the Court denied SEPTA's motion to compel the production of CSI on the ground that SEPTA had failed to exhaust its administrative remedies. On April 11, 2019, SEPTA filed a motion for leave to file a third amended complaint. The proposed third amended complaint seeks to reassert the Securities Act claims that the Court dismissed as to all defendants on December 7, 2016, when the Court granted in part and denied in part defendants' motions to dismiss SEPTA's second amended complaint. The proposed third amended complaint also seeks to reassert the Exchange Act claims against those defendants that the Court dismissed from the case on December 7, 2016. Defendants' briefs in opposition to SEPTA's motion for leave to file a third amended complaint were filed on April 25, 2019. SEPTA filed a reply brief in further support of its motion for leave to file a third amended complaint on May 9, 2019. That motion is pending. On June 13, 2019, Orrstown filed a motion for protective order to stay discovery pending resolution of SEPTA's motion for leave to file a third amended complaint. On June 19, 2019, former defendants Smith Elliott Kearns & Company, LLC and the underwriters joined in Orrstown's motion for protective order. On June 25, 2019, SEPTA filed its opposition to Orrstown's motion. On July 9, 2019, Orrstown filed a reply brief in further support of its motion. On July 17, 2019, the Court entered an Order partially granting Orrstown's motion for protective order. Orrstown said, "The Company believes that the allegations of SEPTA's second amended complaint, and the allegations of the proposed third amended complaint, are without merit and intends to defend itself vigorously against those claims. It is not possible at this time to estimate reasonably possible losses, or even a range of reasonably possible losses, in connection with the litigation." Orrstown Financial Services, Inc. operates as the holding company for Orrstown Bank that provides commercial banking and trust services in the United States. The company provides its banking and bank-related services through branches located in Berks, Cumberland, Dauphin, Franklin, Lancaster, Perry, and York counties of Pennsylvania, as well as Washington County, Maryland. Orrstown Financial Services, Inc. was founded in 1919 and is headquartered in Shippensburg, Pennsylvania. ORTHO MATTRESS: Cal. App. Affirms Arbitration Denial in Banuelos ---------------------------------------------------------------- The Court of Appeals of California, Fourth District, Division Two, issued an Opinion affirming the Trial Court's judgment denying Defendants' RAMIRO BANUELOS, Plaintiff and Respondent, v. ORTHO MATTRESS, INC. INC., Defendant and Appellant. No. E070393. (Cal. App.). Defendant and appellant Ortho Mattress, Inc. (Ortho) appeals the denial of its petition to compel arbitration against plaintiff and respondent Ramiro Banuelos. As alleged, Ortho employed Banuelos as a salesperson from 2016 to 2017 and failed to provide meal and rest breaks or other entitlements under the Labor Code. In 2017, Banuelos filed a class action complaint, which was later amended to bring a single PAGA claim as an aggrieved employee on behalf of the state. Ortho petitioned to compel arbitration, arguing that Banuelos received a copy of Ortho's Mutual Arbitration Policy (MAP) and signed an applicable arbitration agreement when he was first hired. The trial court denied the petition. Applicable Law Under the PAGA, an aggrieved employee may bring a civil action personally and on behalf of other current or former employees to recover civil penalties for Labor Code violations. In a PAGA action, the relevant question is not only whether the aggrieved employee bringing the action is a party to the arbitration agreement, but also whether the state is. It is well settled that the state is the real party in interest in a PAGA action. Neither party contends here that Banuelos entered into a postdispute arbitration agreement. This is unsurprising, given that Banuelos alleges he sent the Agency written notice in December 2017, approximately two years after he signed his arbitration agreement. The state is therefore not bound by the arbitration agreement. There is no indication in the record that the state has otherwise expressed its consent to arbitration here. Accordingly, the trial court properly denied Ortho's petition. Ortho advances several arguments in contending the PAGA claim should be arbitrated. The Court considers each in turn. Delegation Clause First, Ortho contends that the trial court should never have considered whether the PAGA claim should be arbitrated, but rather should have allowed the arbitrator to decide it in the first instance. Ortho notes that the arbitration agreement incorporated the AAA's arbitration rules, which provided in part that the arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope or validity of the arbitration agreement or to the arbitrability of any claim or counterclaim. Such a provision is sometimes referred to as a delegation clause. Ortho asserts that, pursuant to the delegation clause, the trial court was wrong to have reached the question of arbitrability at all. Cases interpreting the Federal Arbitration Act (FAA), however, have held that the threshold issue of whether the delegation clause is even applicable to a certain party must be decided by the Court, and Ortho does not point us to any cases to the contrary. This principle has been recently affirmed by the United States Supreme Court: to be sure, before referring a dispute to an arbitrator, the court determines whether a valid arbitration agreement exists. The Court concludes that the trial court was correct to consider whether the delegation clause applied to the state. Moreover, the trial court correctly determined that the delegation clause did not apply. Non-PAGA Relief Second, Ortho argues that the trial court incorrectly treated Banuelos as bringing only a PAGA claim despite the fact that the complaint alleges Labor Code violations and requests certain types of relief not covered by the PAGA. A motion to compel arbitration is not the proper procedural vehicle for sorting through alleged defects in the complaint. Ortho needs to challenge the defects it believes are in the complaint; and then, if there are private, non-PAGA actions, seek arbitration on those matters. Whether or not Banuelos's complaint contains non-PAGA claims is therefore not a ground for reversal here. Individual PAGA Claim Fourth, Ortho asserts that Banuelos is entitled to pursue civil penalties for PAGA claims in his own name and that at least his individual claim should be arbitrated. This is contradicted, however, by the fact that the state is the real party in interest in a PAGA action and that the PAGA is simply a procedural statute allowing an aggrieved employee to recover civil penalties for Labor Code violations that otherwise would be sought by state labor law enforcement agencies. As our cases have held, a single representative claim cannot be split into an arbitrable individual claim and a nonarbitrable representative claim. Ortho disputes that the state is the real party in interest in a PAGA action, citing Villacres v. ABM Industries, Inc. (2010) 189 Cal.App.4th 562 (Villacres). The plaintiff in Villacres filed a PAGA action against his employer despite previously participating in a class action alleging similar violations against the same employer. The PAGA action was filed just days after the previous class action was settled, and the trial court granted summary judgment for the employer on res judicata grounds, which the Court of Appeal affirmed. Villacres does not support Ortho here. For one, the opinion does not state when the plaintiff met the statutory requirements to bring a PAGA action, so it is not clear whether the general release contained in his class action settlement agreement operated on a predispute or postdispute basis. Regardless, even if Villacres stood for the idea that a plaintiff could forego a PAGA claim on a predispute basis, Iskanian which our Supreme Court decided four years after Villacres makes that position no longer tenable. Severance Fifth, Ortho argues that Banuelos can be compelled to arbitration here even if the class action waiver in his arbitration agreement were severed. Our holding that the state is not bound by the arbitration agreement, however, does not depend on the existence or operation of the class action waiver. Accordingly, whether the class action waiver is severable or not does not affect our result. FAA Finally, Ortho argues that affirming the trial court's ruling would violate the FAA in two ways. First, Ortho contends that affirming the trial court would effectively create a rule barring enforcement of the arbitration agreement as to PAGA claims, which would run afoul of the FAA because a State cannot categorically exempt certain claims from arbitration. As Ortho points out, when state law prohibits outright the arbitration of a particular type of claim, the analysis is straightforward: The conflicting rule is displaced by the FAA. But the Court is not barring enforcement of arbitration agreements as to PAGA claims, which, the Court have said, can be arbitrated; rather, the Court is barring enforcement of arbitration agreements against non-parties. The order is affirmed. A full-text copy of the Cal. App.'s dated August 22, 2019 Opinion is available at https://tinyurl.com/y2xkndvc from Leagle.com. Hill, Farrer & Burrill, James A. Bowles -- jbowles@hillfarrer.com -- and Elissa L. Gysi -- egysi@hillfarrer.com -- for Defendant and Appellant. Blumenthal Nordrehaug Bhowmik De Blouw, Norman B. Blumenthal, and Kyle R. Nordrehaug, 2255 Calle Clara La Jolla, CA 92037, for Plaintiff and Respondent. OS RESTAURANT: Court Takes Class Cert. Bid under Submission ----------------------------------------------------------- In the class action lawsuit styled as Lloyd T. Briggs III, the Plaintiff v. OS Restaurant Services, LLC, et al., the Defendants, Case No. 2:18-cv-08457-JAK-AFM (C.D. Cal.), the Hon. Judge John A. Kronstadt has taken Defendants' motion for partial summary judgment and Plaintiff's motion for class certification under submission. The Court said it is inclined to grant-in-part Defendants' Motion for Partial Summary Judgment as to the Ninth Cause of Action, the Tenth Cause of Action, and the Request for Injunctive Relief. The Court said Plaintiff's Motion for Class Certification satisfies the requirements of Fed. Rule Civ. Proc. 23(a) numerosity, commonality and typicality, but that the Court needs additional information from counsel before reaching a view on whether the terms of Fed. R. Civ. P. 23(b) are satisfied. Counsel address the Court.[CC] Attorneys for the Plaintiffs are: Allen B. Felahy, Esq. FELAHY EMPLOYMENT LAWYERS 550 S Hope St, Ste 2655 Los Angeles, CA 90071-2647 Telephone: (323) 645-5197 Facsimile: (323) 645-5198 E-mail: afelahy@felahylaw.com - and - Yashdeep Singh, Esq. YASH LAW GROUP 3 Pointe Dr Ste 304, Brea, CA 92821-7604 Telephone: (714) 494-6244 Facsimile: (714) 406-2722 E-mail: ysingh@yashlaw.com Attorneys for the Defendants are: Jason C. Ross, Esq. Kyle W. Nageotte, Esq. James M. Peterson, Esq. HIGGS FLETCHER & MACK 401 West A Street, Suite 2600 San Diego, CA 92101 Telephone: (619) 595-4249 Facsimile: (619) 696-1410 E-mail: info@higgslaw.com PFIZER INC: Class Suits Related to Adalimumab Biosimilars Ongoing ----------------------------------------------------------------- Pfizer Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 8, 2019, for the quarterly period ended June 30, 2019, that the company together with AbbVie Inc. continues to defend against purported class action suits related to Adalimumab Biosimilars. Beginning in March 2019, purported class actions relating to Humira and adalimumab biosimilars were filed in the United States District Court for the Northern District of Illinois against AbbVie Inc. (AbbVie), certain affiliates of AbbVie, and other pharmaceutical manufacturers. Pfizer is a named defendant in three of the actions. The plaintiffs seek to represent nationwide and multi-state classes consisting of persons and/or entities who are indirect purchasers of Humira from January 1, 2017 until the allegedly unlawful antitrust effects cease. Against Pfizer, the plaintiffs generally allege that Pfizer's and AbbVie's 2018 licensing agreements, resolving all global intellectual property matters for Pfizer's proposed adalimumab biosimilar, delayed market entry of Pfizer's biosimilar product in the U.S. in violation of federal antitrust laws, various state antitrust or consumer protection laws, and unjust enrichment laws. Plaintiffs seek injunctive relief and treble damages for alleged overcharges for Humira since 2017. No further updates were provided in the Company's SEC report. Pfizer Inc. discovers, develops, manufactures, and sells healthcare products worldwide. It offers medicines and vaccines in various therapeutic areas, including internal medicine, vaccines, oncology, inflammation and immunology, and rare diseases under the Lyrica, Chantix/Champix, Eliquis, Ibrance, Sutent, Xalkori, Inlyta, Xtandi, Enbrel, Xeljanz, Eucrisa, BeneFix, Genotropin, and Refacto AF/Xyntha brands. Pfizer Inc. was founded in 1849 and is headquartered in New York, New York. PFIZER INC: Continues to Defend Lipitor-Related Antitrust Suits --------------------------------------------------------------- Pfizer Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 8, 2019, for the quarterly period ended June 30, 2019, that the company continues to defend itself from purported class action suits over sales of Lipitor. Beginning in November 2011, purported class actions relating to Lipitor were filed in various federal courts against, among others, Pfizer, certain affiliates of Pfizer, and, in most of the actions, Ranbaxy, Inc. (Ranbaxy) and certain affiliates of Ranbaxy. The plaintiffs in these various actions seek to represent nationwide, multi-state or statewide classes consisting of persons or entities who directly purchased, indirectly purchased or reimbursed patients for the purchase of Lipitor (or, in certain of the actions, generic Lipitor) from any of the defendants from March 2010 until the cessation of the defendants' allegedly unlawful conduct (the Class Period). The plaintiffs allege delay in the launch of generic Lipitor, in violation of federal antitrust laws and/or state antitrust, consumer protection and various other laws, resulting from (i) the 2008 agreement pursuant to which Pfizer and Ranbaxy settled certain patent litigation involving Lipitor, and Pfizer granted Ranbaxy a license to sell a generic version of Lipitor in various markets beginning on varying dates, and (ii) in certain of the actions, the procurement and/or enforcement of certain patents for Lipitor. Each of the actions seeks, among other things, treble damages on behalf of the putative class for alleged price overcharges for Lipitor (or, in certain of the actions, generic Lipitor) during the Class Period. In addition, individual actions have been filed against Pfizer, Ranbaxy and certain of their affiliates, among others, that assert claims and seek relief for the plaintiffs that are substantially similar to the claims asserted and the relief sought in the purported class actions described above. These various actions have been consolidated for pre-trial proceedings in a Multi-District Litigation (In re Lipitor Antitrust Litigation MDL-2332) in the U.S. District Court for the District of New Jersey. In September 2013 and 2014, the District Court dismissed with prejudice the claims by direct purchasers. In October and November 2014, the District Court dismissed with prejudice the claims of all other Multi-District Litigation plaintiffs. All plaintiffs have appealed the District Court's orders dismissing their claims with prejudice to the U.S. Court of Appeals for the Third Circuit. In addition, the direct purchaser class plaintiffs appealed the order denying their motion to amend the judgment and for leave to amend their complaint to the U.S. Court of Appeals for the Third Circuit. In August 2017, the U.S. Court of Appeals for the Third Circuit reversed the District Court's decisions and remanded the claims to the District Court. Also, in January 2013, the State of West Virginia filed an action in West Virginia state court against Pfizer and Ranbaxy, among others, that asserts claims and seeks relief on behalf of the State of West Virginia and residents of that state that are substantially similar to the claims asserted and the relief sought in the purported class actions described above. No further updates were provided in the Company's SEC report. Pfizer Inc. discovers, develops, manufactures, and sells healthcare products worldwide. It offers medicines and vaccines in various therapeutic areas, including internal medicine, vaccines, oncology, inflammation and immunology, and rare diseases under the Lyrica, Chantix/Champix, Eliquis, Ibrance, Sutent, Xalkori, Inlyta, Xtandi, Enbrel, Xeljanz, Eucrisa, BeneFix, Genotropin, and Refacto AF/Xyntha brands. Pfizer Inc. was founded in 1849 and is headquartered in New York, New York. PFIZER INC: Continues to Defend Saline Solution Class Suit ---------------------------------------------------------- Pfizer Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 8, 2019, for the quarterly period ended June 30, 2019, that Hospira and Hospira Worldwide, Inc. continue to defend a consolidated class action suit related to intravenous saline solution. Beginning in November 2016, purported class actions were filed in the U.S. District Court for the Northern District of Illinois against Hospira, Hospira Worldwide, Inc. and certain other defendants relating to intravenous saline solution. Plaintiffs seek to represent a class consisting of all persons and entities in the U.S. who directly purchased intravenous saline solution sold by any of the defendants from January 1, 2013 until the time the defendants' allegedly unlawful conduct ceases. Plaintiffs allege that the defendants' conduct restricts output and artificially fixes, raises, maintains and/or stabilizes the prices of intravenous saline solution sold throughout the U.S. in violation of federal antitrust laws. Plaintiffs seek treble damages (for themselves and on behalf of the putative classes) and an injunction against defendants for alleged price overcharges for intravenous saline solution in the U.S. since January 1, 2013. All of these actions have been consolidated in the U.S. District Court for the Northern District of Illinois. In July 2018, the District Court granted defendants' motions to dismiss the consolidated amended complaint without prejudice. Plaintiffs filed a second amended complaint in September 2018. Pfizer said, "On February 3, 2017, we completed the sale of our global infusion systems net assets, HIS, which includes intravenous saline solution, to ICU Medical. The litigation is the subject of cross-claims for indemnification by both Pfizer and ICU Medical under the purchase agreement." No further updates were provided in the Company's SEC report. Pfizer Inc. discovers, develops, manufactures, and sells healthcare products worldwide. It offers medicines and vaccines in various therapeutic areas, including internal medicine, vaccines, oncology, inflammation and immunology, and rare diseases under the Lyrica, Chantix/Champix, Eliquis, Ibrance, Sutent, Xalkori, Inlyta, Xtandi, Enbrel, Xeljanz, Eucrisa, BeneFix, Genotropin, and Refacto AF/Xyntha brands. Pfizer Inc. was founded in 1849 and is headquartered in New York, New York. PFIZER INC: Hormone Therapy Consumer Class Action vs. Wyeth Ongoing ------------------------------------------------------------------- Pfizer Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 8, 2019, for the quarterly period ended June 30, 2019, that Wyeth LLC continues to defend itself from the Hormone Therapy Consumer class action lawsuit. A certified consumer class action is pending against Wyeth in the U.S. District Court for the Southern District of California based on the alleged off-label marketing of its hormone therapy products. The case was originally filed in December 2003. The class consists of California consumers who purchased Wyeth's hormone-replacement products between January 1995 and January 2003 and who do not seek personal injury damages therefrom. The class seeks compensatory and punitive damages, including a full refund of the purchase price. No further updates were provided in the Company's SEC report. Pfizer Inc. discovers, develops, manufactures, and sells healthcare products worldwide. It offers medicines and vaccines in various therapeutic areas, including internal medicine, vaccines, oncology, inflammation and immunology, and rare diseases under the Lyrica, Chantix/Champix, Eliquis, Ibrance, Sutent, Xalkori, Inlyta, Xtandi, Enbrel, Xeljanz, Eucrisa, BeneFix, Genotropin, and Refacto AF/Xyntha brands. Pfizer Inc. was founded in 1849 and is headquartered in New York, New York. PHILADELPHIA CONSOLIDATED: Huck Suit Transferred to N.D. Georgia ---------------------------------------------------------------- The case, RONALD HUCK and PEGGY HUCK, Individually and on behalf of all those similarly situated, Plaintiffs, v. PHILADELPHIA CONSOLIDATED HOLDING CORP. D/B/A PHILADELPHIA INSURANCE COMPANIES, and PHILADELPHIA INDEMNITY INSURANCE COMPANY, Defendants, 2019-0083851-CV, was removed from Cobb County Superior Court to the United States District Court for the Northern District of Georgia on July 23, 2019. The removal of this case is pursuant to the Class Action Fairness Act (CAFA). The minimal diversity requirement under CAFA is satisfied in this case because (a) Plaintiffs are citizens of Georgia, and (b) Defendants are not citizens of Georgia. The United States District Court for the Northern District of Georgia has opened Case No. 1:19-cv-03336-AT for further proceedings. In this complaint, Plaintiffs allege that on or about Jan. 7, 2014, their home suffered a water loss that was covered under an insurance policy issued by Defendants. Plaintiffs further allege that Defendants failed to assess for or pay diminished value arising out of that loss. Philadelphia Consolidated is a Pennsylvania corporation with its principal place of business in Bala Cynwyd, Pennsylvania. [BN] Attorneys for Defendants: Jeffrey A. Zachman, Esq. DENTONS US LLP 303 Peachtree Street, NE. Suite 5300 Atlanta, GA 30308 Telephone: (404) 527-4000 Facsimile: (404) 527-4198 E-mail: jeff.zachman@dentons.com - and - Richard L. Fenton, Esq. DENTONS US LLP 233 South Wacker Drive, Suite 5900 Chicago, IL 60606-6462 Telephone: (312) 876-8000 Facsimile: (312) 876-7934 E-mail: richard.fenton@dentons.com PILLARS PROTECTION: O'Byant Wins Collective Class Certification --------------------------------------------------------------- In the class action lawsuit styled as ROBERT BRANDON CAVANESS O'BRYANT, on behalf of himself and others similarly situated, the Plaintiff, v. PILLARS PROTECTION SERVICES, LLC, the Defendant, Case No. 2:19-cv-01354-GCS-KAJ (S.D. Ohio, Aug. 29, 2019), the Hon. Judge George C. Smith entered an order: 1. granting Plaintiff's Motion, as amended by the terms of the Stipulation filed by the parties; 2. certifying a collective class of: "current or former Security Guards employed by Pillars Protective Services, LLC, who worked at least 35 hours in any single workweek during the three years prior to Aug. 29, 2019"; 3. approving form and substance of the Notice filed in the action; 4. approving form and substance of the Consent Form filed in the action; and 5. directing Clerk to remove from the Court’s pending motions list, the Motion for Conditional Class Certification and Court-Supervised Notice to Potential Opt-In Plaintiff. The parties have agreed to, and the Court approves, the following timeline in connection with the dissemination of the Notice: a. No later than 14 days after the date of this Order: Defendant to provide names and contact information of putative class members to class counsel. b. No later than 14 days after class counsel receives contact information from Defendant: Class counsel to send the Notice and Consent Form (Notice Packet) to the putative class via U.S. first-class mail and electronic mail. c. At the conclusion of the Notice Period: Parties to schedule status conference with the Court.[CC] PLURALSIGHT INC: Faces Suit over 40% Drop in Share Price -------------------------------------------------------- CITY OF BIRMINGHAM FIREMEN'S AND POLICEMEN'S SUPPLEMENTAL PENSION SYSTEM, individually and on behalf of all others similarly situated, Plaintiff v. PLURALSIGHT, INC.; AARON SKONNARD; and JAMES BUDGE, Defendants, Case No. 1:19-cv-07563 (S.D.N.Y., Aug. 13, 2019) is an action on behalf of all persons or entities that purchased or otherwise acquired Pluralsight common stock from August 2, 2018 through July 31, 2019, inclusive, seeking to pursue remedies under the Securities Exchange Act of 1934. According to the complaint, on July 31, 2019, after the close of the markets, Pluralsight announced disappointing financial results for the second quarter ended June 30, 2019, and that its billings growth rate had sharply deteriorated from over 40% to just 23% year-over-year. The Company blamed its declining growth in billings on sales execution challenges and other issues with its salesforce. Pluralsight also disclosed that its Chief Revenue Officer was resigning. In response to these disclosures, Pluralsight's share price plummeted. The stock price fell $12.13 per share in a single day -- a nearly 40% drop -- to close at $18.56 per share on August 1, 2019. Pluralsight, Inc. operates as a software company. The Company provides a platform which offers assessments, learning paths and courses to businesses and individuals seeking to enhance their programming and IT related skill sets. Pluralsights serves customers around the world. [BN] The Plaintiff is represented by: Steven B. Singer, Esq. SAXENA WHITE P.A. 10 Bank Street, 8th Floor White Plains, NY 10606 Telephone: (914) 437-8551 Facsimile: (888) 631-3611 E-mail: ssinger@saxenawhite.com - and - Joseph E. White, III, Esq. SAXENA WHITE P.A. 150 East Palmetto Park Road, Suite 600 Boca Raton, FL 33432 Telephone: (561) 394-3399 Facsimile: (561) 394-3382 E-mail: jwhite@saxenawhite.com - and - David R. Kaplan, Esq. SAXENA WHITE P.A. 12750 High Bluff Drive, Suite 475 San Diego, CA 92130 Telephone: (858) 997-0860 Facsimile: (858) 369-0096 E-mail: dkaplan@saxenawhite.com PORTFOLIO RECOVERY: Class Certification Sought in Johnson Suit -------------------------------------------------------------- Jumoka Johnson moves the Court to certify the class described in the complaint of the lawsuit styled JUMOKA JOHNSON, Individually and on Behalf of All Others Similarly Situated v. PORTFOLIO RECOVERY ASSOCIATES, LLC, Case No. 2:19-cv-01240 (E.D. Wisc.), and further asks that the Court both stay the motion for class certification and to grant the Plaintiff (and the Defendant) relief from the Local Rules setting automatic briefing schedules and requiring briefs and supporting material to be filed with the Motion. Dicta in the Supreme Court's decision in Campbell-Ewald Co. v. Gomez, left open the possibility that a defendant facing a class action complaint could moot a class representative's case by depositing funds equal to or in excess of the maximum value of the plaintiff's individual claim with the court and having the court enter judgment in the plaintiff's favor prior to the filing of a class certification motion, the Plaintiff asserts, citing Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016). To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion. Damasco v. Clearwire Corp., 662 F.3d 891, 896 (7th Cir. 2011), overruled on other grounds, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015) ("The pendency of that motion [for class certification] protects a putative class from attempts to buy off the named plaintiffs."). While the Seventh Circuit has held that the specific procedure described in Campbell-Ewald cannot force the individual settlement of a class representative's claims, the same decision cautions that other methods may prevent a plaintiff from representing a class, the Plaintiff tells the Court, citing Fulton Dental, LLC v. Bisco, Inc., No. 16-3574, 2017 U.S. App. LEXIS 10839 *9-10 (7th Cir. June 20, 2017). The Plaintiff asserts that one defendant has attempted a similar tactic by sending a certified check to the proposed class representative. Bonin v. CBS Radio, Inc., No. 16-cv-674-CNC (E.D. Wis.); see also Severns v. Eastern Account Systems of Connecticut, Inc., Case No. 15-cv-1168, 2016 U.S. Dist. LEXIS 23164 (E.D. Wis. Feb. 24, 2016). The Plaintiff is obligated to move for class certification to protect the interests of the putative class, the Plaintiff avers. As the Motion to certify a class is a placeholder motion as described in Damasco, the parties and the Court should not be burdened with unnecessary paperwork and the resulting expense when short motion to certify and stay should suffice until an amended motion is filed, the Plaintiff contends. The Plaintiff also asks to be appointed as class representative, and for the appointment of Ademi & O'Reilly, LLP, as class counsel.[CC] The Plaintiff is represented by: John D. Blythin, Esq. Mark A. Eldridge, Esq. Jesse Fruchter, Esq. Ben J. Slatky, Esq. Denise L. Morris, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482-8000 Facsimile: (414) 482-8001 E-mail: jblythin@ademilaw.com meldridge@ademilaw.com jfruchter@ademilaw.com bslatky@ademilaw.com dmorris@ademilaw.com PREMIER NUTRITION: Certification of 9 Joint Juice Classes Sought ---------------------------------------------------------------- The Plaintiffs in nine class action lawsuits will move the Court on November 7, 2019, for an order: 1. certifying the following nine Classes and appointing each respective Plaintiff as Class representative for his or her state. The Classes to be certified are defined as: "all persons who purchased Joint Juice in the States of Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, New Mexico, New York, and Pennsylvania from March 1, 2009 up to and including the date class notice is disseminated"; and 2. appointing Timothy G. Blood of the law firm of Blood Hurst & O'Reardon, LLP as class counsel for each Class. Excluded from each Class are: the Defendant, its parents, subsidiaries, affiliates, officers, and directors; those who purchased the Joint Juice Products for the purpose of resale; all persons who make a timely election to be excluded from the Class; the judge to whom this case is assigned and any immediate family members thereof; and those who assert claims for personal injury. The nine class action lawsuits are: "VINCENT D. MULLINS, individually and on behalf of all others similarly situated, the Plaintiff, v. PREMIER NUTRITION CORPORATION f/k/a JOINT JUICE, INC., the Defendant, Case No. 3:16-cv-06685-RS (N.D. Cal)"; "VINCENT D. MULLINS, individually and on behalf of all others similarly situated, the Plaintiff, v. PREMIER NUTRITION CORPORATION f/k/a JOINT JUICE, INC., the Defendant, Case No. 3:16-cv-06703-RS (N.D. Cal)"; "VINCENT D. MULLINS, individually and on behalf of all others similarly situated, the Plaintiff, v. PREMIER NUTRITION CORPORATION f/k/a JOINT JUICE, INC., the Defendant, Case No. 3:16-cv-06704-RS (N.D. Cal)"; "VINCENT D. MULLINS, individually and on behalf of all others similarly situated, the Plaintiff, v. PREMIER NUTRITION CORPORATION f/k/a JOINT JUICE, INC., the Defendant, Case No. 3:16-cv-06708-RS (N.D. Cal)"; "VINCENT D. MULLINS, individually and on behalf of all others similarly situated, the Plaintiff, v. PREMIER NUTRITION CORPORATION f/k/a JOINT JUICE, INC., the Defendant, Case No. 3:16-cv-06721-RS (N.D. Cal)"; "VINCENT D. MULLINS, individually and on behalf of all others similarly situated, the Plaintiff, v. PREMIER NUTRITION CORPORATION f/k/a JOINT JUICE, INC., the Defendant, Case No. 3:16-cv-06980-RS (N.D. Cal)"; "VINCENT D. MULLINS, individually and on behalf of all others similarly situated, the Plaintiff, v. PREMIER NUTRITION CORPORATION f/k/a JOINT JUICE, INC., the Defendant, Case No. 3:16-cv-07078-RS (N.D. Cal)"; "VINCENT D. MULLINS, individually and on behalf of all others similarly situated, the Plaintiff, v. PREMIER NUTRITION CORPORATION f/k/a JOINT JUICE, INC., the Defendant, Case No. 3:16-cv-07090-RS (N.D. Cal)"; and "VINCENT D. MULLINS, individually and on behalf of all others similarly situated, the Plaintiff, v. PREMIER NUTRITION CORPORATION f/k/a JOINT JUICE, INC., the Defendant, Case No. 3:17-cv-00054-RS". The following are the respective Plaintiff seeking for appointment for each Class: Susan Caiazzo (Florida), Case No. 3:16-cv-06685-RS Donna Lux (Connecticut), Case No. 3:16-cv-06703-RS Annette Ravinsky (Pennsylvania), Case No. 3:16-cv-06704-RS Arthur Sandoval (New Mexico), Case No. 3:16-cv-06708-RS Sandra Dent (Illinois), Case No. 3:16-cv-06721-RS Beverly Avery (Michigan), Case No. 3:16-cv-07078-RS Marilyn Spencer (Maryland), Case No. 3:16-cv-07090-RS Eric Fishon (New York), Case No. 3:16-cv-06980-RS Mary Trudeau (Massachusetts), Case No. 3:17-cv-00054-RS[BN] Attorneys for the Plaintiffs are: BLOOD HURST & O'REARDON, LLP TIMOTHY G. BLOOD (149343) THOMAS J. O’REARDON II (247952) 501 West Broadway, Suite 1490 San Diego, CA 92101 Telephone: 619 338-1100 Facsimile: 619 338-1101 E-mail: tblood@bholaw.com toreardon@bholaw.com PRESSED JUICERY: Brooks Files Class Suit in California Under ADA ---------------------------------------------------------------- Pressed Juicery, Inc. is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Valerie Brooks, individually and on behalf of all others similarly situated, Plaintiff v. Pressed Juicery, Inc., a Delaware corporation, Defendant, Case No. 2:19-cv-01687 KJM-CKD (E.D. Cal., Aug. 28, 2019). Pressed Juicery is a cold-pressed juice brand.[BN] The Plaintiff is represented by: Thiago Merlini Coelho, Esq. Wilshire Law Firm 3055 Wilshire Blvd 12th Floor Los Angeles, CA 90010 Tel: (213) 381-9988 Fax: (213) 381-9989 Email: thiago@wilshirelawfirm.com QUINCY BIOSCIENCE: Karathanos Suit Transferred to S.D. New York --------------------------------------------------------------- The case, John Karathanos, on behalf of himself and all others similarly situated, the Plaintiff, vs. Quincy Bioscience Holding Company, Inc., a corporation; Quincy Bioscience, LLC, a limited liability company; Prevagen, Inc., doing business as: Sugar River Supplements a corporation; Quincy Bioscience Manufacturing, LLC, a limited liability company Mark Underwood, individually and as an officer of Quincy Bioscience Holding Company, Inc., Quincy Bioscience, LLC, and Prevagen, Inc.; and Michael Beaman, individually and as an officer of Quincy Bioscience Holding Company, Inc., Quincy Bioscience, LLC, and Prevagen, Inc., Defendants, Case No. 2:17-cv-01091 (Feb. 27, 2017), was transferred from the U.S. District Court for the Eastern District of New York, to the U.S. District Court for the Southern District of New York (Foley Square) on Aug. 28, 2019. The Southern District of New York Court Clerk assigned Case No. 1:19-cv-08023-RA to the proceeding. The suit demands $5 million in damages and alleges violation of the Racketeer Influenced and Corrupt Organizations Act. The case is assigned to the Hon. Judge Ronnie Abrams.[BN] Attorneys for the Plaintiff are: Daniel Robert Lapinski, Esq. MOTLEY RICE LLC 210 Lake Drive East, Suite 101 Cherry Hill, NJ 08002 Telephone: (856) 667-0500 Facsimile: (856) 667-5133 E-mail: dlapinski@motleyrice.com - and - Kevin P. Roddy, Esq. WILENTZ, GOLDMAN & SPITZER, P.A. 90 Woodbridge Center Drive, Suite 900 Woodbridge, NJ 07095 Telephone: (732) 855-6402 Facsimile: (732) 726-6686 E-mail: kroddy@wilentz.com Attorneys for the Defendants are: Geoffrey White Castello, III, Esq. KELLEY DRYE & WARREN LLP 200 Kimball Drive Parsippany, NJ 07054 Telephone: (973) 503-5922 Facsimile: (973) 503-5950 E-mail: gcastello@kelleydrye.com - and - Joshua Simon, Esq. Matthew R. Orr, Esq. William P. Cole, Esq. CALL & JENSEN 610 Newport Center Drive, Suite 700 Newport Beach, CA 92660 Telephone: (949) 717-3000 Facsimile: (949) 717-3100 E-mail jsimon@calljensen.com morr@calljensen.com wcole@calljensen.com - and - Glenn T. Graham, Esq. Jaclyn Marie Metzinger, Esq. KELLEY DRYE & WARREN LLP One Jefferson Road, 2nd Floor Parsippany, NJ 07054 Telephone: (973) 503-5917 Facsimile: (973) 503-5950 E-mail: ggraham@kelleydrye.com jmetzinger@kelleydrye.com - and - Jeffrey S. Jacobson, Esq. DRINKER BIDDLE & REATH LLP 1177 Avenue of the Americas, 41st Floor New York, NY 10036 Telephone: (212) 248-3191 E-mail: jeffrey.jacobson@dbr.com RAYMOND JAMES: Final Settlement Approval Hearing Set for Oct. 25 ---------------------------------------------------------------- Raymond James Financial, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 8, 2019, for the quarterly period ended June 30, 2019, that a court has set a hearing date of October 25, 2019 for final approval of the settlement. On February 17, 2015, Jyll Brink ("Brink") filed a putative class action complaint in the U.S. District Court for the Southern District of Florida (the "District Court") under the caption Jyll Brink v. Raymond James & Associates, Inc. (the "Brink Complaint"). The Brink Complaint alleges that Brink, a former customer of RJ&A, was charged a fee in her Passport Investment Account, and that the fee included an unauthorized and undisclosed profit to RJ&A in violation of its customer agreement and applicable industry standards. The Passport Investment Account is a fee-based account in which clients pay asset-based advisory fees and certain processing fees for ongoing investment advice and monitoring of securities holdings. The Brink Complaint seeks, among other relief, damages in the amount of the difference between the actual cost of processing a trade, as alleged by Brink, and the fee charged by RJ&A. On October 19, 2018, the District Court certified a class of former and current customers of RJ&A who executed a Passport Agreement and were charged processing fees during the period between February 17, 2010 and February 17, 2015. On February 11, 2016, Caleb Wistar ("Wistar") and Ernest Mayeaux ("Mayeaux") filed a putative class action complaint in the District Court under the caption Caleb Wistar and Ernest Mayeaux v. Raymond James Financial Services, Inc. and Raymond James Financial Services Advisors, Inc. (as subsequently amended, the "Wistar Complaint"). Similar to the Brink Complaint, the Wistar Complaint alleges that Wistar and Mayeaux, former customers of Raymond James Financial Services, Inc. ("RJFS") and Raymond James Financial Services Advisors, Inc. ("RJFSA"), were charged a fee in RJFS and RJFSA's Passport Investment Account and that the fee included an unauthorized and undisclosed profit to RJFS and RJFSA in violation of its customer agreement and applicable industry standards. The Wistar Complaint seeks, among other relief, damages in the amount of the difference between the actual cost of processing a trade, as alleged by Wistar and Mayeaux, and the fee charge by RJFS and RJFSA. On April 5, 2019, the parties to the Brink Complaint and the Wistar Complaint agreed in principle to an aggregate settlement of $15 million. On June 11, 2019, the parties filed a Stipulation of Settlement and Joint Motion for Preliminary Approval of Class Action Settlement and Certification of the Settled Subclasses. On June 12, 2019, the District Court entered an order preliminarily approving the Class Action Settlement and set a hearing date of October 25, 2019 for final approval of the settlement. Raymond James said, "While the hearing for final approval has been set, the settlement remains subject to approval by the District Court. The settlement amounts for both complaints were included in "Other payables" in our Condensed Consolidated Statement of Financial Condition as of June 30, 2019." Raymond James Financial, Inc., through its subsidiaries, engages in the underwriting, distribution, trading, and brokerage of equity and debt securities, and the sale of mutual funds and other investment products in the United States, Canada, Europe, and internationally. It operates in five segments: Private Client Group (PCG), Capital Markets, Asset Management, RJ Bank, and Other. The company was founded in 1962 and is headquartered in St. Petersburg, Florida. RECEIVABLES MANAGEMENT: Seeks Prelim. Nod of Coulter Class Deal --------------------------------------------------------------- The parties in the lawsuit captioned JOSHUA COULTER, individually and on behalf of all others similarly situated v. RECEIVABLES MANAGEMENT SYSTEMS, Case No. 2:17-cv-03970-JS (E.D. Pa.), jointly move the Court for an order certifying the case to proceed as a class action and granting preliminary approval of the Parties' Class Settlement Agreement. The class consists of: All consumers who were sent an initial collection letter from Defendant, with an address in Chester County, Pennsylvania, during the period of September 5, 2016 to March 3, 2017, attempting to collect a consumer debt, which stated: "If you feel that this balance may be due from your insurance carrier, please contact your carrier prior to contacting the representative at the extension listed below." The Plaintiff filed this class action lawsuit pursuant to the Fair Debt Collection Practices Act, which alleges that RMS violated the FDCPA by sending consumers written collection communications that misleadingly suggested that the Plaintiff could dispute the alleged RMS debt by calling RMS, when in fact, a dispute must be made in writing to be effective under the FDCPA.[CC] The Plaintiff is represented by: Ari H. Marcus, Esq. MARCUS & ZELMAN, LLC 701 Cookman Avenue, Suite 300 Asbury Park, NJ 07712 Telephone: (732) 695-3282 Facsimile: (732) 298-6256 E-mail: Ari@MarcusZelman.com The Defendant is represented by: Thomas Collins, Esq. BUCHANAN INGERSOLL & ROONEY PC 409 N. 2nd Street, Suite 500 Harrisburg, PA 17101 Telephone: (717) 237-4800 Facsimile: (717) 233-0852 E-mail: thomas.collins@bipc.com RHODE ISLAND: Chapdelaine, et al Seek to Certify Class ------------------------------------------------------ In the class action lawsuit styled as THEODORE CHAPDELAINE, et al., the Plaintiffs, v. PETER NERONHA, in his official capacity as Attorney General of the State of Rhode Island, et al., the Defendants, Case No. 1:15-cv-00450-JJM-LDA (D.R.I., Aug. 27, 2019), Theodore Chapdelaine, Frederick Kenney, and Richard Moreau ask the Court for an order: 1. certifying a class of: "all persons currently residing in, and those who may in the future relocate to, the State of Rhode Island who were or are convicted of offenses that require registration under the Sexual Offender Registration and Community Notification Act of the State of Rhode Island, chapter 11-37.1 of the General Laws of the State of Rhode Island, and have been, or will be, assigned to "tier" or "level" and are therefore subject to the Residency Prohibition and the 2020 Residency Prohibition contained in section 11-37.1-10(d). Excluded from the class are any persons as to whom a criminal charge or indictment for alleged violation of the Residency Prohibition is pending." 2. appointing Plaintiffs as representatives of the certified class; and 3. appointing Plaintiffs' counsel as class counsel.[CC] Attorneys for the Plaintiffs are: Lynette Labinger, Esq. LABINGER LAW 128 Dorrance Street Box 710 Providence, RI 02903 Telephone: (401) 465-9565 -tel E-mail: LL@labingerlaw.com - and - John E. MacDonald, Esq. LAW OFFICE OF JOHN E. MACDONALD, INC. One Turks Head Place, Suite 1440 Providence, RI 02903 Telephone: (401) 421-1440 -tel Facsimile: (401) 421-1442 -fax E-mail: jm@jmaclaw.com RITE AID: Faces Product Liability Lawsuit in Connecticut -------------------------------------------------------- A class action complaint has been filed against Rite Aid of Connecticut, Inc. and Maxi Drug, Inc. for alleged tort liability. The case is captioned John Howell, individually and on behalf of all others similarly situated, v. Rite Aid of Connecticut, Inc. et al., Case No. HHD-CV-19-6114418-S (Conn. Super., July 17, 2019). This product liability lawsuit is filed in Hartford County, Connecticut. Headquartered in Cumberland County, Pennsylvania, Rite Aid is a drugstore chain in the United States. [BN] The Plaintiff is represented by: BROWN PAINDIRIS & SCOTT LLP 100 Pearl Street Hartford, CT 061034506 Telephone: (203) 522-3343 ROCHELLE PROPERTY: Has Made Unsolicited Calls, Beaudet Claims ------------------------------------------------------------- GALINA BEAUDET, individually and on behalf of all others similarly situated, Plaintiff v. ROCHELLE PROPERTY SOLUTIONS, LLC, Defendant, Case No. 8:19-cv-02054 (M.D. Fla., Aug. 18, 2019) seeks to stop the Defendants' practice of making unsolicited calls. Rochelle Property Solutions, LLC offers real estate investment services providing real estate solutions of all types. [BN] The Plaintiff is represented by: Manuel S. Hiraldo, Esq. HIRALDO P.A. 401 E. Las Olas Boulevard, Suite 1400 Ft. Lauderdale, FL 33301 Telephone: (954) 400-4713 E-mail: mhiraldo@hiraldolaw.com ROUNDY'S ILLINOIS: Class Certification Sought in Haugen Suit ------------------------------------------------------------ The Plaintiffs in the lawsuit titled JAMES HAUGEN AND CHRISTIAN GOLDSTON, on behalf of themselves, and all other Plaintiffs similarly situated, known and unknown v. ROUNDY'S ILLINOIS, LLC D/B/A MARIANO'S, Case No. 1:18-cv-07297 (N.D. Ill.), filed with the Court their Motion for Stage-One Conditional Certification and Notice to Putative Class Members.[CC] The Plaintiffs are represented by: John W. Billhorn, Esq. BILLHORN LAW FIRM 53 W. Jackson Blvd., Suite 401 Chicago, IL 60604 Telephone: (312) 853-1450 E-mail: jbillhorn@billhornlaw.com RUTHERFORD COUNTY, TN: KW Seeks to Certify 3 Classes of Arrestees ----------------------------------------------------------------- The Plaintiffs in the lawsuit entitled K.W., EX REL KANISA DAVIS; A.B., EX REL SANDRA BRIEN; AND J.B., EX REL JAQUELINE BRINKLEY, DYLAN J. GEERTS v. RUTHERFORD COUNTY, TENNESSEE, Case No. 3:17-cv-01014 (M.D. Tenn.), submit their revised motion for certification of three classes: A. Arrest Class (certification sought under Rule 23(b)(3) for compensatory damages): All persons who have been taken into custody by a Rutherford County Sheriff's deputy for a juvenile unruly or misdemeanor delinquent charge, where the child was taken into custody on or after July 20, 2016 or the child was born on or after July 20, 1999, and: 1. The Sheriff's file reflects that no law enforcement officer personally witnessed the alleged offense; 2. The alleged offense was not for runaway, violation of probation, violation of valid court order, domestic assault, driving under the influence, a traffic offense in connection with a motor vehicle collision, or stalking; and, 3. The arrest was not made pursuant to a previously-issued court arrest order based on individualized findings that a summons would be ineffective; B. Injunctive Detention Class (certification sought under Rule 23(b)(2) for declaratory and injunctive relief): All children who may, in the future, be securely detained at the Rutherford County Juvenile Detention Center on a delinquent or unruly charge where: 1. The child is not charged with the delinquent offense of Aggravated Assault, any form of robbery, any form of kidnapping, any form of criminal homicide, any rape or sexual battery offense, Aggravated Arson, or any illegal weapons offense; 2. The child is not charged with a felony delinquent offense, probation violation, or aftercare violation while the child: a) Is already on supervised probation; b) Is already awaiting court action on a previously alleged delinquent offense; c) Is alleged to have escaped or absconded from a juvenile facility, institution, or other court-ordered placement; or d) Has, within the previous twelve months, been charged with failing to appear at any juvenile court hearing or committing a violent felony delinquent offense involving a risk of serious bodily injury or death; e) Has, within the previous twelve months, been adjudicated delinquent of a felony delinquent offense; 3. There are not "special circumstances" justifying the secure detention because of a risk of immediate harm to the child if he or she is not securely detained; 4. The child is not alleged to be an escapee from a secure juvenile facility or institution; 5. The child is not wanted in another jurisdiction for a felony delinquent offense; 6. The child is not charged as an unruly child for violating a valid court order; and C. Detention Damages Class (certification sought under Rule 23(b)(3) for compensatory damages): All persons who have been securely detained at the Rutherford County Juvenile Detention Center on a delinquent or unruly allegation, where the person was detained on or after October 14, 2015, or the person was born on or after October 14, 1998, and the Juvenile Court and Juvenile Detention Center files reflect: 1. The person was not charged with the delinquent offense of Aggravated Assault, any form of robbery, any form of kidnapping, any form of criminal homicide, any rape or sexual battery offense, Aggravated Arson, or any illegal weapons offense; 2. The person was not charged with a felony delinquent offense, probation violation, or aftercare violation while the person: a) Was already on supervised probation; b) Was already awaiting court action on a previously alleged delinquent offense; c) Was alleged to have escaped or absconded from a juvenile facility, institution, or other court-ordered placement; or d) Had, within the previous twelve months, been charged with failing to appear at any juvenile court hearing or committing a violent felony delinquent offense involving a risk of serious bodily injury or death; e) Had, within the previous twelve months, been adjudicated delinquent of a felony delinquent offense. 3. No court order was issued within 24 hours of the detention, excluding nonjudicial days, documenting "special circumstances" justifying the secure detention because of a risk of immediate harm to the person if he or she was not securely detained; 4. The person was not alleged to be an escapee from a secure juvenile facility or institution; 5. The person was not wanted in another jurisdiction for a felony delinquent offense; and 6. The person was not charged as an unruly child for violating a valid court order already in effect.[CC] The Plaintiffs are represented by: Wesley B. Clark, Esq. BRAZIL CLARK, PLLC 2706 Larmon Dr. Nashville, TN 37204 Telephone: (615) 984-4681 Facsimile: (615) 514-9674 E-mail: wesley@brazilclark.com - and - Kyle F. Mothershead, Esq. LAW OFFICE OF KYLE MOTHERSHEAD 414 Union St., Suite 900 Nashville, TN 37219 Telephone: (615) 982-8002 Facsimile: (615) 229-6387 E-mail: kyle@mothersheadlaw.com - and - Mark J. Downton, Esq. THE LAW OFFICE OF MARK J. DOWNTON 2706 Larmon Dr. Nashville, TN 37204 Telephone: (615) 984-4681 Facsimile: (615) 514-9674 E-mail: lawyerdownton@gmail.com The Defendant is represented by: Randall Mantooth, Esq. HUDSON, REED & MCCREARY, PLLC 16 Public Square North P.O. Box 884 Murfreesboro, TN 37133 Telephone: (615) 893-5522 E-mail: rmantooth@mborolaw.com S-L DISTRIBUTION: Macedonia Moves to Certify Distributors Class --------------------------------------------------------------- The Plaintiff in the lawsuit entitled MACEDONIA DISTRIBUTING INC., on behalf of itself and all others similarly situated v. S-L DISTRIBUTION COMPANY, LLC, Case No. 8:17-cv-01692-JVS-KES (C.D. Cal.), moves for an order certifying a class defined as: All individuals or entities in the state of California who, as of May 2017, were a party to a Distributor Agreement with S-L Distribution Company, LLC and whose Distributor Agreements were terminated as part of S-L's 2017 system-wide termination of Distributor Agreements. Macedonia also asks the Court to appoint it as Class representative, and to appoint its counsel, Tycko & Zavareei LLP and Spangenberg Shibley & Liber LLP, as Class Counsel. The Court will commence a hearing on December 16, 2019, at 1:30 p.m., to consider the Motion.[CC] The Plaintiff is represented by: Annick M. Persinger, Esq. V Chai Oliver Prentice, Esq. TYCKO & ZAVAREEI LLP 1970 Broadway, Suite 1070 Oakland, CA 94612 Telephone (510) 254-6808 Facsimile (510) 210-0571 E-mail: apersinger@tzlegal.com vprentice@tzlegal.com - and - Hassan A. Zavareei, Esq. TYCKO & ZAVAREEI LLP 1828 L Street, NW, Suite 1000 Washington, DC 20036 Telephone (202) 973-0900 Facsimile (202) 973-0950 E-mail: hzavareei@tzlegal.com - and - Stuart E. Scott, Esq. SPANGENBERG SHIBLEY & LIBER LLP 1001 Lakeside Avenue East, Suite 1700 Cleveland, OH 44114 Telephone (216) 696-3232 Facsimile (216) 696-3924 E-mail: sscott@spanglaw.com SAEXPLORATION HOLDINGS: Bodin Sues over 34% Drop in Share Price --------------------------------------------------------------- JOHN BODIN, individually and on behalf of all others similarly situated, Plaintiff v. SA EXPLORATION HOLDINGS, INC.; JEFF HASTINGS; BRIAN BEATTY; and BRENT WHITELEY, Defendants, Case No. 4:19-cv-03089 (S.D. Tex., Aug. 18, 2019) is a class action on behalf of persons or entities who purchased or otherwise acquired publicly traded SAExploration securities from March 15, 2016 through August 15, 2019, inclusive, seeking to recover compensable damages caused by the Defendants' violations of the federal securities laws under the Securities Exchange Act of 1934. On March 15, 2016, the Company filed a Form 10-K for the fiscal year ended December 31, 2015 (the "2015 10-K"). The 2015 10-K was signed by Defendants Hasting, Beatty, and Whiteley. The 2015 10-K contained signed certifications pursuant to the Sarbanes-Oxley Act of 2002 ("SOX") by Defendants Beatty and Whiteley attesting to the accuracy of financial reporting, the disclosure of any material changes to the Company's internal control overfinancial reporting and the disclosure of all fraud. The 2015 10-K stated that "management has concluded that we maintained effective internal control over financial reporting as of December 31, 2015." The 2015 10-K also provided that there "were no changes in our internal control over financial reporting that occurred during the fourth quarter of the period covered by this report that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting." The statements were materially false and misleading because they misrepresented and failed to disclose the following adverse facts pertaining to the Company's business, operations, and prospects, which were known to Defendants or recklessly disregarded by them. Specifically, Defendants made false and misleading statements and failed to disclose that: (1) the Company improperly did not classify Alaska Seismic Ventures, LLC ("ASV") as a variable interest entity; (2) the Company had a controlling financial interest in ASV, which required the Company to consolidate ASV in its financial statements; (3) the Company had deficient internal controls over financial reporting; (4) these practices were likely to lead to an investigation of the Company by the SEC; (5) SAExploration would be forced to delay the filing of its quarterly report for the quarter ended June 30, 2019; and (6) as a result, Defendants' statements about SAExploration's business, operations and prospects were materially false and misleading and/or lacked a reasonable basis at all relevant times. On August 15, 2019, the Company announced in a press release that the SEC was conducting into certain accounting matters that arose in 2015-2016. The Company also announced that it would restate its previously issued financial statements for fiscal years 2015-2018 and delay filing its 10-Q for the quarter ended June 30, 2019. The Company further announced that Defendant Hastings had been placed on administrative leave and resigned as Chairman, and that Defendant Whiteley had been terminated. On this news, the Company's shares fell $1.13 per share or over 34% to close at $2.14 per share on August 16, 2019, damaging investors. Trading volume on that date was unusually high. SAExploration Holdings Inc. operates as a holding company. The Company offers a full range of seismic data services including surveying, program design, logistical support, data acquisition, processing, camp services, catering, environmental assessment, and community relations. SAExploration serves oil and gas companies worldwide. [BN] The Plaintiff is represented by: R. Dean Gresham, Esq. STECKLER GRESHAM COCHRAN PLLC 12720 Hillcrest Rd, Suite 1045 Dallas, TX 75230 Telephone: (972) 387-4040 Facsimile: (972) 387-4041 E-mail: dean@stecklerlaw.com - and - Phillip Kim, Esq. Laurence M. Rosen, Esq. THE ROSEN LAW FIRM, P.A. 275 Madison Avenue, 34th Floor New York, NY 10016 Telephone: (212) 686-1060 Facsimile: (212) 202-3827 E-mail: pkim@rosenlegal.com lrosen@rosenlegal.com SAEXPLORATION HOLDINGS: Faces Bodin Class Suit in Texas ------------------------------------------------------- SAExploration Holdings, Inc. said in its Form 8-K filing with the U.S. Securities and Exchange Commission filed on August 22, 2019, that the company faces a putative class action suit entitled, John Bodin v. SAExploration Holdings, Inc., et al. Case No. 4:2019cv03089. On August 18, 2019, a purported stockholder, John Bodin (the "Plaintiff"), filed a putative class action lawsuit against the Company and certain current and former executive officers named therein (the "Defendants") in the U.S. District Court for the Southern District of Texas captioned John Bodin v. SAExploration Holdings, Inc., et al. Case No. 4:2019cv03089. Plaintiff seeks to represent a class of stockholders who purchased or otherwise acquired publicly traded securities of the Company from March 15, 2016 through August 15, 2019 (the "Covered Period"). The complaint generally alleges that the Defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and SEC Rule 10b-5 by making false and misleading statements in the periodic reports the Company filed with the SEC during the Covered Period. The complaint requests damages, including interest, and an award of reasonable costs and expenses, including counsel and expert fees. SAExploration Holdings, Inc., incorporated on February 2, 2011, is an internationally focused oilfield services company. The Company offers a range of seismic data acquisition and logistical support services in Alaska, Canada, South America and Southeast Asia to customers in the oil and natural gas industry. The company is based in Houston, Texas. SALESFORCE.COM INC: Curtis Challenges Tableau Software Merger Deal ------------------------------------------------------------------ Salesforce.com, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 23, 2019, for the quarterly period ended July 31, 2019, that the company has been named as a defendant in a class action suit initiated by Marcy Curtis related to its merger with Tableau Software, Inc. On August 1, 2019, pursuant to an Agreement and Plan of Merger dated June 9, 2019, the Company acquired all of the outstanding capital stock of Tableau, which provides a self-service analytics platform that enables users to easily access, prepare, analyze, and present findings in their data. In July 2019, three civil actions were filed against Tableau Software, Inc. ("Tableau") and each of the members of Tableau's board of directors as of the dates of the complaints asserting claims under Sections 14(e), 14(d), and 20(a) of the Exchange Act challenging the adequacy of certain public disclosures made by Tableau concerning its proposed transaction with Salesforce. Salesforce was named as a defendant in one of these three actions. Specifically, Shiva Stein, a purported Tableau stockholder, commenced an action in the United States District Court for the District of Delaware (the "Stein Action"); Marcy Curtis, a purported Tableau stockholder, commenced a putative class action in the United States District Court for the District of Delaware (the "Curtis Action"); and Cathy O'Brien, a purported Tableau stockholder, commenced an action in the United States District Court for the Southern District of New York (the "O'Brien Action"). Salesforce was named as a defendant in the Curtis Action. The plaintiffs seek, among other things, an injunction that would have prevented the acquisition of Tableau by Salesforce, rescission of the transaction or rescissory damages, an accounting by the defendants for all damages caused to the plaintiffs, and the award of attorneys' fees and expenses. Tableau has not answered the complaint in the Curtis, or O'Brien Actions, and Salesforce has not answered the complaint in the Curtis Action. Salesforce.com, Inc. develops enterprise cloud computing solutions with a focus on customer relationship management. The company offers Sales Cloud to store data, monitor leads and progress, forecast opportunities, and gain insights through analytics and relationship intelligence, as well as deliver quotes, contracts, and invoices. The company was founded in 1999 and is headquartered in San Francisco, California. SALESFORCE.COM INC: Scheufele Suit v. Tableau Software Ongoing -------------------------------------------------------------- Salesforce.com, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 23, 2019, for the quarterly period ended July 31, 2019, that Tableau Software, Inc. continues to defend "Scheufele" class action suit in the U.S. District for the Southern District of New York. On August 1, 2019, pursuant to an Agreement and Plan of Merger dated June 9, 2019, the Company acquired all of the outstanding capital stock of Tableau, which provides a self-service analytics platform that enables users to easily access, prepare, analyze, and present findings in their data. In July and August 2017, two substantially similar securities class action complaints were filed against Tableau Software, Inc. ("Tableau") and two of its now former executive officers. The first complaint was filed in the U.S. District for the Southern District of New York (the "Scheufele Action"). The second complaint was filed in the U.S. District Court for the Western District of Washington and was voluntarily dismissed on October 17, 2017. In December 2017, the lead plaintiff in the Scheufele Action filed an amended complaint, which alleged that between February 5, 2015 and February 4, 2016, Tableau and certain of its executive officers violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act") and Rule 10b-5 promulgated thereunder, in connection with statements regarding Tableau's business and operations by allegedly failing to disclose that product launches and software upgrades by competitors were negatively impacting Tableau’s competitive position and profitability. The amended complaint sought unspecified damages, interest, attorneys' fees and other costs. In February 2018, the lead plaintiff filed a second amended complaint (the "SAC"), which contains substantially similar allegations as the amended complaint, and added as defendants two of Tableau’s now former executive officers and directors. Defendants filed a motion to dismiss the SAC in March 2018, which was denied in February 2019. Defendants filed an answer to the SAC in March 2019, and subsequently amended their answer in April 2019. Salesforce.com, Inc. develops enterprise cloud computing solutions with a focus on customer relationship management. The company offers Sales Cloud to store data, monitor leads and progress, forecast opportunities, and gain insights through analytics and relationship intelligence, as well as deliver quotes, contracts, and invoices. The company was founded in 1999 and is headquartered in San Francisco, California. SARATOGA ESCAPE: Murphy Alleges Violation under ADA --------------------------------------------------- Saratoga Escape Lodges & RV Resort, Inc. is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as James Murphy, on behalf of himself and all other persons similarly situated, Plaintiff v. Saratoga Escape Lodges & RV Resort, Inc., Defendant, Case No. 1:19-cv-08063 (S.D. N.Y., Aug. 28, 2019). Saratoga Escape Lodges & RV Resort, Inc. offers Adirondack cabin rentals, campsites, RV hook-up sites, and amenities like swimming pools, mini golf and tennis courts.[BN] The Plaintiff is represented by: Zare Khorozian, Esq. Zare Khorozian Law, LLC 1047 Anderson Avenue Fort Lee, NJ 07024 Tel: (201) 957-7269 Email: zare@zkhorozianlaw.com SIFCO INDUSTRIES: Still Defends Wage-and-Hour Suit in California ---------------------------------------------------------------- SIFCO Industries, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 16, 2019, for the quarterly period ended June 30, 2019, that the company continues to defend a purported wage-and-hour class action suit in California. The Company is a defendant in a purported class action lawsuit filed in the Superior Court of California, County of Orange, arising from employee wage-and-hour claims under California law for alleged meal period, rest break, hourly and overtime wage calculation, timely wage payment and necessary expenditure indemnification violations; failure to maintain required wage records and furnish accurate wage statements; and unfair competition. As mentioned previously, the Company records reserves for legal disputes and other matters in accordance with the generally accepted accounting principles in the United States of America ("GAAP"), the ultimate outcomes of these types of matters are inherently uncertain. Actual results may differ significantly from current estimates. Given the current status of this matter, the Company has not recorded a loss as the Company does not have a reasonable basis on which to establish an estimate. No further updates were provided in the Company's SEC report. SIFCO Industries, Inc. produces and sells forgings and machined components primarily for the aerospace and energy markets in the United States and Europe. It was founded in 1916 and is headquartered in Cleveland, Ohio. SINCLAIR BROADCAST: Bid to Nix Maryland Securities Suit Pending --------------------------------------------------------------- Sinclair Broadcast Group, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 8, 2019, for the quarterly period ended June 30, 2019, that the motion to dismiss the class action suit entitled, In re Sinclair Broadcast Group, Inc. Securities Litigation, case No. 1:18-CV-02445-CCB, is pending. On August 9, 2018, Edward Komito, a putative Company shareholder, filed a class action complaint (the "Initial Complaint") in the United States District Court for the District of Maryland (the "District of Maryland") against the Company, Christopher Ripley and Lucy Rutishauser, which action is now captioned In re Sinclair Broadcast Group, Inc. Securities Litigation, case No. 1:18-CV-02445-CCB (the "Securities Action"). On March 1, 2019, lead counsel in the Securities Action filed an amended complaint, adding David Smith and Steven Marks as defendants, and alleging that defendants violated the federal securities laws by issuing false or misleading disclosures concerning (a) the Merger prior to the termination thereof; and (b) the Department of Justice (DOJ) investigation concerning the alleged exchange of pacing information. The Securities Action seeks declaratory relief, money damages in an amount to be determined at trial, and attorney's fees and costs. On May 3, 2019, Defendants filed a motion to dismiss the amended complaint, which motion has been opposed by lead plaintiff. The Company believes that the allegations in the Securities Action are without merit and intends to vigorously defend against the allegations. Sinclair Broadcast Group, Inc. operates as a television broadcasting company in the United States. It owns or provides various programming, operating, sales, and other non-programming operating services to television stations. The company was founded in 1986 and is headquartered in Hunt Valley, Maryland. SINCLAIR BROADCAST: Continues to Defend 22 Price-Fixing Class Suits ------------------------------------------------------------------- Sinclair Broadcast Group, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 8, 2019, for the quarterly period ended June 30, 2019, that the company is aware of 22 putative class action lawsuits related to exchange of pacing data. According to Sinclair, 22 putative class action lawsuits were filed against the Company following published reports of the Department of Justice (DOJ) investigation into the exchange of pacing data within the industry. On October 3, 2018, these lawsuits were consolidated in the Northern District of Illinois. The consolidated action alleges that the Company and eight other broadcasters conspired to fix prices for commercials to be aired on broadcast television stations throughout the United States and engaged in unlawful information sharing, in violation of the Sherman Antitrust Act. The consolidated action seeks damages, attorneys' fees, costs and interest, as well as injunctions against adopting practices or plans that would restrain competition in the ways the plaintiffs have alleged. The Company believes the lawsuits are without merit and intends to vigorously defend itself against all such claims. No further updates were provided in the Company's SEC report. Sinclair Broadcast Group, Inc. operates as a television broadcasting company in the United States. It owns or provides various programming, operating, sales, and other non-programming operating services to television stations. The company was founded in 1986 and is headquartered in Hunt Valley, Maryland. SOUTHERN COMPANY: Court Certifies Class in Securities Suit ---------------------------------------------------------- The United States District Court for the Northern District of Georgia, Atlanta Division, issued an Opinion and Order granting Plaintiffs' Motion for Class Certification in the case captioned MONROE COUNTY EMPLOYEES' RETIREMENT SYSTEM and ROOFERS LOCAL NO. 149 PENSION FUND, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, v. THE SOUTHERN COMPANY, THOMAS A. FANNING, ART P. BEATTIE, EDWARD DAY, VI, G. EDISON HOLLAND, JR., JOHN C. HUGGINS, AND THOMAS O. ANDERSON, Defendants. Civil Action No. 1:17-cv-00241-WMR. (N.D. Ga.). Roofers Local No. 149 Pension Fund and Monroe County Employees' Retirement System, as putative class representatives, seek damages for Defendants' alleged violations of Section 10(b) of the Securities Exchange Act of 1934, Rule 10b-5 promulgated thereunder, and Section 20(a) of the Exchange Act. The operative complaint in this action is the Consolidated Complaint for Violations of the Federal Securities Laws. The Plaintiffs seek certification of a Class consisting of: All persons who purchased or otherwise acquired The Southern Company common stock between April 25, 2012 and October 30, 2013, inclusive (the Class Period), and were damaged thereby. Here, the Plaintiffs seek certification by Rule 23(b)(3), which requires that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. Rule 23(a) Numerosity To satisfy the numerosity requirement of Rule 23(a)(1), a movant must show that the class is so numerous that joinder of all members is impracticable. Defendants do not dispute numerosity. Further, Plaintiffs have furnished evidence demonstrating that Southern Company's average number of shares outstanding during the Class Period was 872.5 million. Thus, the Court finds Plaintiffs have satisfied their burden under the numerosity requirement. Commonality Rule 23(a)(2) requires a showing that questions of law or fact are common to the class. Generally, where plaintiffs allege that the action is a result of a unified scheme to defraud investors, the element of commonality is met. Defendants do not dispute commonality. In addition, Plaintiffs allege that all Class members have been harmed as a result of a common course of conduct arising from a common set of material misrepresentations and omissions that Defendants made during the Class Period. Thus, there is a well-defined community of interest in the questions at issue, which include, inter alia: 1. Whether Defendants violated the 1934 Act; 2. Whether Defendants omitted and/or misrepresented material facts; 3. Whether Defendants knew or recklessly disregarded that their statements were false and misleading; and 4. Whether Defendants' statements and/or omissions artificially inflated the price of Southern Company common stock and the extent and appropriate measure of damages. Thus, Plaintiffs have shown that this case presents common questions of law and fact. Typicality Rule 23(a)(3) requires that the class representative's claims or defenses be typical of the claims or defenses of the putative class. A class representative's claim is typical if there is a nexus between the class representative's claims or defenses and the common questions of fact or law which unite the class. Here, as with the other Rule 23(a) requirements, Defendants do not dispute typicality. Further, the proposed class representatives, Roofers Local No. 149 and Monroe County, purchased Southern Company common stock during the Class Period, as did all putative Class members. Thus, Plaintiffs have shown their claims are typical of those of the Class. Adequacy Rule 23(a)(4) requires that the representative parties will fairly and adequately protect the interests of the class. Courts in the Eleventh Circuit examine a two-prong test for adequacy: (1) whether any substantial conflicts of interest exist between the representatives and the class and (2) whether the representatives will adequately prosecute the action. Defendants do not challenge the adequacy requirement, and the Court finds Plaintiffs are adequate. First, there are no substantial or fundamental conflicts of interest between Plaintiffs and the Class. Like other potential Class members, Roofers Local No. 149 and Monroe County purchased Southern Company common stock at market prices during the Class Period and were allegedly injured by the same alleged material misrepresentations and omissions that injured all proposed Class members. Plaintiffs' interests in establishing Defendants' liability and maximizing the recovery are aligned with the interests of absent Class members. Furthermore, Roofers Local No. 149 and Monroe County have demonstrated their willingness and ability to serve as class representatives. Plaintiffs have supervised and monitored the progress of the litigation, have participated in discussions with Lead Counsel concerning case developments, have reviewed Court filings, understand their duty to the Class and are committed to vigorously prosecuting this action to maximize recovery for all Class members. In other words, Plaintiffs have demonstrated a willingness to assert and defend the interests of putative Class members. Thus, the Court finds that Roofers Local No. 149 and Monroe County are adequate. In conclusion, the Court finds that Plaintiffs have satisfied all of the Rule 23(a) requirements. Rule 23(b)(3) Plaintiffs seek certification pursuant to Rule 23(b)(3), which requires a showing that common questions of fact or law predominate over any individual questions and that maintaining the action as a class action is superior to other available methods for adjudicating the controversy. Rule 23(b)(3). Predominance Rule 23(b)(3) requires that the questions of law or fact common to class members predominate over any questions affecting only individual members. This requirement tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation. It is not necessary that all questions of fact or law be common, but only that some questions are common and that they predominate over individual questions. Considering whether questions of law or fact common to class members predominate' begins, of course, with the elements of the underlying cause of action. The elements of a private securities fraud claim based on violations of Section 10(b) and Rule 10b-5 are: (1) a material misrepresentation or omission by the defendant (2) scienter (3) a connection between the misrepresentation or omission and the purchase or sale of a security; (4) reliance upon the misrepresentation or omission (5) economic loss and (6) loss causation. Despite the many common issues identified above as part of the Rule 23(a) analysis, Defendants contend that individual issues regarding reliance and damages predominate over any common inquiries. The Court addresses these arguments in turn. Reliance The reliance element ensures that there is a proper connection between a defendant's misrepresentation and a plaintiff's injury. The traditional and most direct way a plaintiff can demonstrate reliance is by showing that he was aware of a company's statement and engaged in a relevant transaction based on that specific misrepresentation. In this case, Plaintiffs invoke Basic's presumption of reliance in order to demonstrate that common issues of reliance predominate over individual issues. Defendants do not dispute that the alleged misrepresentations were publicly known or that Plaintiffs purchased Southern Company common stock between the time the alleged misrepresentations were made and the end of the Class Period. Rather, Defendants argue only that Plaintiffs fail to show the market for Southern Company stock during the Class Period was efficient, which they say precludes Plaintiffs' invocation of the fraud-on-the-market presumption of reliance. Further, Defendants contend that even if Plaintiffs have established that the market for Southern Company stock was efficient during the Class Period such that they can invoke the fraud-on-the-market presumption, Defendants have rebutted the presumption. The Court addresses Plaintiff's showing of market efficiency and Defendants' attempt to rebut the presumption in turn. Market Efficiency The Court finds that all of the traditional indicia of efficiency outlined by the Eleventh Circuit in Regions existed with respect to Southern Company stock during the Class Period, and neither Defendants nor their expert dispute this fact. First, millions of shares changed hands daily during the Class Period. Specifically, the average daily and weekly trading volumes for Southern Company common stock during the Class Period were 4.5 million and 22.5 million shares, respectively. Because Plaintiffs have shown and Defendants do not dispute that the traditional indicia of efficiency are satisfied, the Court finds that Plaintiffs have established market efficiency. Damages Defendants contend that Plaintiffs have failed to articulate a common damages methodology capable of calculating class-wide damages. First, Defendants argue that Plaintiffs have failed to proffer a damages model tailored to the needs of the case specifically, how Plaintiffs would calculate damages allegedly suffered by investors who bought stock at different times; prices; and levels of inflation. Second, Defendants argue that Plaintiffs' damages model is inconsistent with their alleged theory of liability, violating the Supreme Court's holding in Comcast Corp. v. Behrend, 569 U.S. 27, 133 S.Ct. 1426 (2013). Notably, however, Professor Gompers does not opine that damages cannot be calculated on a class-wide basis; he merely claims that Professor Feinstein fails to propose a model that does so. Plaintiffs, on the other hand, argue that the damages model proposed by Professor Feinstein is capable of measuring damages on a class-wide basis, that the model is consistent with Plaintiffs' theory of liability, and that Defendants' arguments are based on a mischaracterization of Plaintiffs' theory of liability in this case. It is axiomatic that individualized damages calculations are generally insufficient to foreclose class certification, and particularly so where the central liability question is common to each class member. Thus, at the class certification stage, while the Court must determine whether Plaintiffs have articulated a damages model capable of calculating damages stemming from the Defendants' actions on a class-wide basis, a determination in the negative is not necessarily fatal to class certification. Rather, if damages cannot be ascertained by a methodology applicable to all class members, the Court must then consider whether questions of individual damages overwhelm the questions of liability that are subject to common proof. Nevertheless, because the Court finds that Plaintiffs have proffered a damages model consistent with their theory of liability and capable of calculating damages on a class-wide and per share basis, the Court does not need to reach the latter inquiry. The Court finds that Plaintiffs have articulated a damages model that is capable of calculating damages on a class-wide basis. First, Plaintiffs' sole theory of liability misrepresentations regarding the Kemper Plant giving rise to their sole alleged harm, artificial stock inflation, is straightforward. Second, Professor Feinstein's proposed damages model has been accepted in securities fraud class actions in cases like this one, where Plaintiffs seek out-of-pocket damages to recover artificial inflation caused by Defendants' misrepresentations. Plaintiffs' theory of liability is straightforward, and their class-wide damages model is appropriately articulated at this stage. Moreover, Plaintiffs do not allege that the underlying risks vis-a-vis the Kemper Plant changed over time. The Court finds that Plaintiffs' proffered damages model satisfies Rule 23(b)(3). Superiority Before certifying a class under Rule 23(b)(3), the Court must find that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. Rule 23(b)(3). To make this decision, the Court considers: (A) the class members' interests in individually controlling the prosecution or defense of separate actions (B) the extent and nature of any litigation concerning the controversy already begun by or against class members (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum and (D) the likely difficulties in managing a class action. Defendants do not contest that a class action is the superior method for adjudicating this case, and the Court finds this requirement satisfied. Absent class members have little interest in individually controlling separate actions, as the amount of individual damages is likely to be relatively small. The Court is not aware of any securities fraud litigation concerning this controversy that has already begun by or against absent class members. Concentrating litigation of the claims in this forum is desirable, as Southern Company is headquartered in this District and many of the acts alleged in the Complaint occurred in this District. Finally, any difficulties in managing a class action do not outweigh the benefits of certifying a class in this case. The Court finds that adjudicating this case as a class action is the superior method. The Court finds that Plaintiffs have established the requirements for class certification under Rule 23(a) and 23(b)(3). Consequently, Plaintiffs' motion for class certification and appointment of Class Representatives and Class Counsel is granted. The Court certifies the following Class: All persons who purchased or otherwise acquired The Southern Company common stock between April 25, 2012 and October 30, 2013, inclusive (the Class Period), and were damaged thereby. A full-text copy of the District Court's dated August 22, 2019 Opinion and Order is available at https://tinyurl.com/y3wra3o2 from Leagle.com. Monroe County Employees' Retirement System, Individually and on Behalf of All Others Similarly Situated, Plaintiff, represented by Daniel S. Drosman -- dand@rgrdlaw.com -- Robbins Geller Rudman & Dowd, LLP, pro hac vice, Darryl J. Alvarado -- dalvarado@rgrdlaw.com -- Robbins Geller Rudman & Dowd, LLP, John C. Herman -- jherman@hermanjones.com -- Herman Jones LLP, Thomas C. Michaud -- tmichaud@vmtlaw.com -- Vanoverbeke Michaud & Timmony, P.C. & Scott H. Saham -- scotts@rgrdlaw.com -- Robbins Geller Rudman & Dowd, LLP. Roofers Local 149 Pension Fund, Plaintiff, represented by Austin P. Brane -- abrane@rgrdlaw.com -- Robbins Geller Rudman & Dowd, LLP, Darryl J. Alvarado, Robbins Geller Rudman & Dowd, LLP, Henry Rosen -- henryr@rgrdlaw.com -- Robbins Geller Rudman & Dowd, LLP, pro hac vice, Hillary B. Stakem -- hstakem@rgrdlaw.com -- Robbins Geller Rudman & Dowd, LLP, pro hac vice, Rachel A. Cocalis -- RCocalis@rgrdlaw.com -- Robbins Geller Rudman & Dowd, LLP, Regis C. Worley, Jr. -- rworley@rgrdlaw.com -- Robbins Geller Rudman & Dowd, LLP, Scott H. Saham, Robbins Geller Rudman & Dowd, LLP, pro hac vice, Daniel S. Drosman, Robbins Geller Rudman & Dowd, LLP & John C. Herman, Herman Jones LLP. The Southern Company, Thomas A. Fanning, Art P. Beattie, Edward Day, VI & G. Edison Holland, Jr., Defendants, represented by Kristin Murphy -- kristin.murphy@lw.com -- Latham & Watkins, Michele Johnson -- michele.johnson@lw.com -- Latham & Watkins, Sarah A. Tomkowiak -- sarah.tomkowiak@lw.com -- Latham & Watkins, William R. Baker, III -- william.baker@lw.com -- Latham & Watkins, pro hac vice, Ashley Heintz -- aheintz@jonesday.com -- Jones Day, Janine Cone Metcalf -- jmetcalf@jonesday.com -- Jones Day, Joseph E. Finley -- jfinley@jonesday.com -- Jones Day, Michael Joseph McConnell -- mmcconnell@jonesday.com -- Jones Day, Robert Watts -- rwatts@jonesday.com -- Jones Day & Walter W. Davis -- wwdavis@jonesday.com -- Jones Day. John C. Huggins & Thomas O. Anderson, Defendants, represented by Sarah A. Tomkowiak, Latham & Watkins, Ashley Heintz, Jones Day, Janine Cone Metcalf, Jones Day, Joseph E. Finley, Jones Day & Robert Watts, Jones Day. SPEEDWAY MOTORSPORTS: Thompson Balks at Sonic Financial Deal ------------------------------------------------------------ JOHN THOMPSON, Individually and On Behalf of All Others Similarly Situated, the Plaintiff, v. SPEEDWAY MOTORSPORTS, INC., O. BRUTON SMITH, MARCUS G. SMITH, WILLIAM R. BROOKS, B. SCOTT SMITH, BERNARD C. BYRD, JR., MARK M. GAMBILL, JAMES P. HOLDEN, TOM E. SMITH, SONIC FINANCIAL CORPORATION, and SPEEDCO, INC., the Defendants, Case No. 1:19-cv-01597-UNA (D. Del., Aug. 28, 2019), stems from a proposed transaction announced on July 24, 2019, pursuant to which Speedway Motorsports will be acquired by Sonic Financial Corporation and Speedco, Inc. On July 23, 2019, Speedway's Board of Directors caused the Company to enter into an agreement and plan of merger with Sonic. Pursuant to the terms of the Merger Agreement, Merger Sub commenced a tender offer to acquire all of Speedway's outstanding common stock for $19.75 per share in cash. The Tender Offer is scheduled to expire on September 16, 2019. On August 16, 2019, the Defendants filed a Solicitation/Recommendation Statement with the United States Securities and Exchange Commission in connection with the Proposed Transaction. The Solicitation Statement omits material information with respect to the Proposed Transaction, which renders the Solicitation Statement false and misleading. The Plaintiff brings this action as a class action on behalf of himself and the other public stockholders of Speedway. Excluded from the Class are defendants herein and any person, firm, trust, corporation, or other entity related to or affiliated with any Defendant. As of July 19, 2019, there were 40,853,902 shares of Speedway common stock outstanding, held by hundreds, if not thousands, of individuals and entities scattered throughout the country.[BN] Attorneys for the Plaintiff are: Richard A. Maniskas, Esq. RM LAW, P.C. 1055 Westlakes Drive, Suite 300 Berwyn, PA 19312 Telephone: (484) 324-6800 Facsimile: (484) 631-1305 E-mail: rm@maniskas.com - and - Gina M. Serra, Esq. Seth D. Rigrodsky, Esq. Brian D. Long, Esq. RIGRODSKY & LONG, P.A. 300 Delaware Avenue, Suite 1220 Wilmington, DE 19801 Telephone: (302) 295-5310 Facsimile: (302) 654-7530 E-mail: sdr@rl-legal.com bdl@rl-legal.com gms@rl-legal.com SPIN MASTER: Conner Asserts Breach of ADA ----------------------------------------- Spin Master, Inc. is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Mary Conner, individually and as the representative of a class of similarly situated persons, Plaintiff v. Spin Master, Inc., Defendant, Case No. 1:19-cv-04910 (E.D. N.Y., Aug. 28, 2019). Spin Master, Inc. is a mobile application and games developing company which has developed an application for iOS users named Air Hogs.[BN] The Plaintiff is represented by: Dan Shaked, Esq. Shaked Law Group, P.C. 14 Harwood Court, Suite 415 Scarsdale, NY 10583 Tel: (917) 373-9128 Email: shakedlawgroup@gmail.com SPRINKLES CUPCAKES: Brooks Files ADA Class Suit in California ------------------------------------------------------------- Sprinkles Cupcakes CA, LLC is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Valerie Brooks, individually and on behalf of all others similarly situated, Plaintiff v. Sprinkles Cupcakes CA, LLC, a California corporation, Defendant, Case No. 2:19-cv-01688-KJM-KJN (E.D. Cal., Aug. 28, 2019). Sprinkles Cupcakes is a Beverly Hills, California-based cupcake bakery chain established in 2005.[BN] The Plaintiff is represented by: Thiago Merlini Coelho, Esq. Wilshire Law Firm 3055 Wilshire Blvd 12th Floor Los Angeles, CA 90010 Tel: (213) 381-9988 Fax: (213) 381-9989 Email: thiago@wilshirelawfirm.com STERLING BUSINESS FORMS: Garcia Sues over Civil Rights Violations ----------------------------------------------------------------- An employment-related class action complaint has been filed against Sterling Business Forms Inc. The case is captioned Joseph Garcia, on behalf of all others similarly situated, vs. Sterling Business Forms Inc., an Oregon Corporation, Case No. 34-2019-00260886-CU-OE-GDS (Cal. Super., Sacramento Cty., July 19, 2019). This civil rights-related lawsuit is assigned to the Department 47 of the California Superior Court. Sterling Business Forms Inc. is an office supply store located at 4119 N Freeway Blvd # A, Sacramento, California. [BN] The Plaintiff is represented by: Kane Moon, Esq. Moon & Yang, APC 1055 W. Seventh St. Suite 1880 Los Angeles, CA 90017 Telephone: (213) 232-3128 Facsimile: (213) 232-3125 TARONIS TECHNOLOGIES: Continues to Defend Shareholders Class Suit ----------------------------------------------------------------- Taronis Technologies, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 19, 2019, for the quarterly period ended June 30, 2019, that the company continues to defend a class action suit initiated by the company's shareholders. On April 15, 2019, the company received notice that a class action lawsuit was filed on behalf of its shareholders who purchased shares of the Company, f/k/a MagneGas Applied Technology Solutions, Inc. from January 28, 2019 through February 12, 2019, inclusive. The lawsuit seeks to recover damages for the Company's investors under the federal securities laws. Taronis said, "The litigation is in the early stages and it is unknown whether it will have a financial impact on the Company." Taronis Technologies, Inc., a technology-based company, focuses on addressing the constraints on natural resources primarily in the United States. The company offers MagneGas, a hydrogen-based synthetic fuel that is used as an alternative to acetylene and other natural gas derived fuels for metal cutting and other commercial uses. The company was formerly known as MagneGas Applied Technology Solutions, Inc. and changed its name to Taronis Technologies, Inc. in January 2019. Taronis Technologies, Inc. was founded in 2005 and is headquartered in Clearwater, Florida. TAYLOR FARMS: Court Denies Prelim Approval of Workers' Settlement ----------------------------------------------------------------- The United States District Court for the Eastern District of California issued an Order denying Plaintiffs' Motion for Preliminary Approval of a Settlement in the case captioned MARIA DEL CARMEN PENA, et al., Plaintiffs, v. TAYLOR FARMS PACIFIC, INC., et al., Defendants. Case No. 2:13-cv-01282-KJM-AC. (E.D. Cal.). The Plaintiffs move for preliminary approval of a settlement reached with the defendants in this long-pending class action. The Plaintiffs were hourly employees at the Tracey plants. Plaintiffs filed this action seeking to represent a class of defendants' current and former employees arising from the following core allegations: (1) defendants did not properly compensate plaintiffs for time spent donning and doffing equipment (2) defendants did not provide plaintiffs with rest breaks and meal breaks required under California labor law and (3) defendants did provide plaintiffs with paychecks in the form and timely manner required under California labor law. LEGAL STANDARD There is a strong judicial policy favoring settlement of class actions. To determine whether a proposed class action settlement is fair, reasonable and adequate, courts consider several factors, as relevant, including: (1) [T]he strength of the plaintiff's case (2) the risk, expense, complexity, and likely duration of further litigation (3) the risk of maintaining class action status throughout the trial (4) the amount offered in settlement (5) the extent of discovery completed and the stage of the proceedings (6) the experience and view of counsel (7) the presence of a governmental participant and (8) the reaction of the class members of the proposed settlement. Upon review of the plaintiffs' filing, the court concludes that although plaintiffs have adequately addressed most outstanding issues the court identified at hearing, they still have not sufficiently explained the proposed class on whose behalf they wish to settle or the terms of their settlement, which precludes the court's ability to exercise its proper role here. Accordingly, the court is unable to grant the motion on the present record. Plaintiffs Have Not Shown the Settlement Class Satisfies Rule 23 Even if the parties have agreed to settle a case on a class-wide basis, the court must determine whether the proposed class satisfies all the requirements of Rule 23(a) (numerosity, typicality, commonality, and adequacy of representation) and either Rule 23(b)(1), (2), or (3). Here, the court previously certified several subclasses but denied certification of other subclasses. The settlement agreement defines the Settlement Class as: All former and current non-exempt hourly employees who worked at Taylor Farms Pacific, Inc.'s Tracy, California facilities during the relevant time period. For purposes of this Settlement Agreement, non-exempt hourly employees' includes employees and direct hires of Taylor Farms Pacific, Inc. as well as temporary workers who provided services to Taylor Farms, Pacific, Inc. The Plaintiffs do not explain how class members' shared employment status presents a common contention that is capable of classwide resolution and will resolve an issue that is central to the validity of each one of the claims in one stroke. This showing is what commonality requires. Instead, perhaps tacitly acknowledging the shortcoming in their briefing on this certification prerequisite, plaintiffs argue it is routine for courts to alter or expand previously certified classes for purposes of certifying a settlement class and in order for Taylor Farms to finally conclude the claims made in the operative complaint, any settlement must necessarily include all such claims even though not covered by this Court's certification order. In other words, plaintiffs do not make an argument for commonality, they make an argument for the court's foregoing a commonality analysis in favor of approving their settlement. This argument is not persuasive, but it is emblematic of plaintiffs' approach to the Rule 23 analysis here. It is certainly possible that the proposed settlement class satisfies Rule 23's requirements, and this order should not be construed as finding otherwise. But plaintiffs provide no concrete explanation of the relevant details of the entire settlement class they seek to certify and they omit any cogent showing of how that class satisfies Rule 23. The court cannot approve their motion on this record. Reasonableness While plaintiffs' motion provides some explanation of the facts and circumstances that led them to believe the settlement amount reached is adequate, here as well they provide little detail. Counsel's supplemental declaration provides additional information, but appears to address only meal break violations and not all claims the expanded settlement class will release. Assuming plaintiffs choose to renew their motion, they must more completely explain how those additional claims are accounted for in the settlement, or, alternatively, why they need not be accounted for despite being released under the parties' agreement. While the court acknowledges and strives to further the strong judicial policy favoring settlement, it cannot simply rubber stamp a class action settlement because it promises recovery and follows years of hard-fought litigation. The motion is DENIED without prejudice to a renewed motion that adequately addresses the court's remaining concerns described above. A full-text copy of the District Court's dated August 22, 2019 Order is available at https://tinyurl.com/yxf2oxxs from Leagle.com. Maria del Carmen Pena, Consuelo Hernandez, Leticia Suarez, Rosemary Dail & Wendell T. Morris, Plaintiffs, represented by Stuart Rowe Chandler -- stuart@chandlerlaw.com -- Law Office Of Stuart R. Chandler, Alexander Russell Wheeler -- awheeler@parrislawyers.com -- Parris Law Firm, Eric Daniel Rouen -- rouenlaw@att.net -- Law Office of Eric D. Rouen, Kitty Kit Yee Szeto -- kszeto@parrislawyers.com -- Parris Law Firm, Naomi C. Pontious -- NPontious@meyersfozi.com -- Meyers Fozi & Dwork, LLP, Patricia K. Olive -- rrexparris@rrexparris.com -- Parris Law Firm & Philip A. Downey, The Downey Law Firm, LLC, Po Box 1021, Unionville, PA, 19375 pro hac vice. Taylor Farms Pacific, Inc., Doing business as Taylor Farms, Defendant, represented by Jesse Alvin Cripps, Jr. -- jcripps@gibsondunn.com -- Gibson Dunn and Crutcher LLP. Abel Mendoza, Inc., Defendant, represented by Justin G. Donner -- justin.donner@mccormickbarstow.com -- McCormick Barstow Sheppard Wayte & Carruth, LLP, Laura A. Wolfe, McCormick, Barstow, Sheppard, Wayte & Carruth LLP, 7647 N. Fresno Street, Fresno, CA 9372 & Wade M. Hansard -- justin.donner@mccormickbarstow.com -- McCormick Barstow Sheppard Wayte & Carruth LLP. Manpower, Inc., Defendant, represented by Simerdip Khangura, Littler Mendelson PC & Gregory G. Iskander -- giskander@littler.com -- Littler Mendelson, P.C. THESY LLC: Tyksinski Sues over Personal Data Theft -------------------------------------------------- A class action complaint has been filed against Thesy, LLC, d/b/a Element Vape, for its failure to implement a reasonably adequate cybersecurity prevention, detection, and response protocol which led to his private personal information, and that of other members of the putative class, being compromised and exposed over an extended period of time in a cybersecurity attack. The case is captioned ARTUR TYKSINSKI, individually and on behalf of similarly situated individuals, Plaintiff, THESY, LLC, a California limited liability corporation, Defendant, Case No. 2019CH08518 (Ill. Cir., Cook Cty., July 19, 2019). Plaintiff alleges that the Defendant for breach of express agreements and for violations of the Illinois Consumer Fraud and Deceptive Business Practices Act. Thesy, LLC, is a California limited liability corporation that transacts business in Illinois, including in Cook County, under the d/b/a Element Vape. The company operates a website dedicated to the marketing and sale of certain electronic "vape" products. [BN] The Plaintiff is represented by: David L. Gerbie, Esq. Timothy P. Kingsbury, Esq. McGUIRE LAW, P.C. 55 W. Wacker Dr., 9th Fl. Chicago, IL 60601 Telephone: (312) 893-7002 E-mail: dgerbie@mcgpc.com UBIQUITI INC: Consolidated Class Suit in New York Ongoing --------------------------------------------------------- Ubiquiti Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on August 21, 2019, for the fiscal year ended June 30, 2019, that the company continues to defend a consolidated class action suit in New York. On February 21, 2018, a purported class action, captioned Paul Vanderheiden v. Ubiquiti Networks, Inc. et al., No. 18-cv-01620 (the "Vanderheiden Action"), was filed in the United States District Court for the Southern District of New York against the Company and certain of its current and former officers. The Vanderheiden Action complaint alleges that the defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder by making false and/or misleading statements, including purported overstatements of the Company's online community user engagement metrics and accounts receivable. On February 28, 2018 and March 13, 2018, substantially similar purported class actions, captioned Xiya Qian v. Ubiquiti Networks, Inc. et al., No. 18-cv-01841 (the "Qian Action") and John Kho v. Ubiquiti Networks, Inc. et al., No. 18-cv-02242 (the "Kho Action", together with the Vanderheiden Action and the Qian Action, the "Class Actions"), respectively, were filed in the United States District Court for the Southern District of New York. On October 24, 2018, the court consolidated the Class Actions and appointed lead plaintiff and lead counsel (the "Consolidated Class Action"). Plaintiff filed its Consolidated Amended Complaint on December 24, 2018. On March 21, 2019, Defendants informed the Court that they were prepared to move to dismiss the Consolidated Amended Complaint but that, consistent with the Court's individual practices, they would refrain from filing that motion pending receipt of further guidance from the Court. Ubiquiti said, "While the Company believes that the Consolidated Class Action is without merit and plans to vigorously defend itself, there can be no assurance that the Company will prevail. The Company cannot currently estimate the possible loss or range of losses, if any, that it may experience in connection with this litigation." Ubiquiti Inc. develops technology platforms for high-capacity distributed Internet access, unified information technology, and consumer electronics for professional, home and personal use. The company categorize its solutions in to three main categories: high performance networking technology for service providers, enterprises and consumers. The company is based in New York, New York. ULTIMATE NUTRITION: Kingsbury Seeks to Recover WARN Act Damages --------------------------------------------------------------- CHRIS KINGSBURY, on behalf of himself and all others similarly situated v. ULTIMATE NUTRITION, INC. and PROSTAR, INC., Case No. 3:19-cv-01299 (D. Conn., Aug. 21, 2019), seeks to recover damages in the amount of 60 days' pay and Employee Retirement Income Security Act benefits arising from the Defendants' violation of the Plaintiff's rights under the Worker Adjustment and Retraining Notification Act of 1988. On August 17, 2019, and thereafter, the Defendants, as a single employer, ordered the termination of the Plaintiff's employment together with the termination of all other employees, who worked at or reported to the Facilities as part of a mass layoff and/or plant closing as defined by the WARN Act for which they were entitled to receive 60 days advance written notice under the WARN Act, according to the complaint. Ultimate is incorporated in the state of Connecticut with a facility located at 21 Hyde Road, in Farmington, Connecticut. Prostar was a Connecticut corporation with its principal place of business located at 7 Corporate Ave., in Farmington, Connecticut. The Defendants jointly maintained, owned, and operated facilities located at 7 Corporate Ave., at 21 Hyde Rd., and at 1 Hartford Square, in New Britain, Connecticut.[BN] The Plaintiff is represented by: David Rintoul, Esq. ZELDES, NEEDLE & COOPER, PC 1000 Lafayette Blvd., 7th Floor Bridgeport, CT 06604 Telephone: (203) 333-9441 E-mail: drintoul@znclaw.com - and - Stuart J. Miller, Esq. LANKENAU & MILLER, LLP 132 Nassau Street, Suite 1100 New York, NY 10038 Telephone: (212) 581-5005 Facsimile: (212) 581-2122 E-mail: sjm@lankmill.com - and - Mary E. Olsen, Esq. M. Vance McCrary, Esq. THE GARDNER FIRM 182 St. Francis Street, Suite 103 Mobile, AL 36602 Telephone: (251) 433-8100 Facsimile: (251) 433-8181 E-mail: molsen@thegardnerfirm.com vmccrary@thegardnerfirm.com - and - THE NLG MAURICE AND JANE SUGAR LAW CENTER FOR ECONOMIC AND SOCIAL JUSTICE, A NON-PROFIT LAW FIRM 4605 Cass Ave. Detroit, MI 48201 Telephone: (313) 993-4505 UNITED PARCEL SERVICE: Ramirez Seeks Minimum Wage, OT Pay --------------------------------------------------------- A class action complaint has been filed against United Parcel Service, Inc. and Enrique Evangelista for alleged violations of the Fair Labor Standards Act (FLSA) and the New York Labor Law (NYLL). The case is captioned LUIS RAMIREZ, individually and on behalf of all others similarly situated, UNITED PARCEL SERVICE, INC. D/B/A UPS, GUFFANTI GROUP INC., and ENRIQUE EVANGELISTA, as an individual, Defendants, Case No. CV19-4188 (E.D.N.Y., July 19, 2019). Plaintiff alleges that the Defendants have violated the overtime and minimum wage provisions of the FLSA and the NYLL. In addition, Plaintiff asserts that the Defendants failed to comply the notice and recordkeeping requirements, the wage statement requirements and the spread of hours compensation under the NYLL. United Parcel Service, Inc. (UPS) is a foreign business corporation organized under the laws of Ohio with a principal executive office at 55 Glenlake Parkway NE, Atlanta, Georgia. UPS is a corporation authorized to conduct business under the laws of New York. Guffanti Group Inc. maintains its principal executive office at 28-24 Steinway Street, Astoria, New York. [BN] The Plaintiff is represented by: Roman Avshalumov, Esq. HELEN F. DALTON & ASSOCIATES, P.C. 80-02 Kew Gardens Road, Suite 601 Kew Gardens, NY 11415 Telephone: (718) 263-9591 VERU INC: Court Dismisses Amended Complaint in Aspen Merger Suit ---------------------------------------------------------------- Veru Inc.said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 8, 2019, for the quarterly period ended June 30, 2019, that the court has denied plaintiffs' motion for summary judgment, granted defendants' motion for summary judgment on all counts, dismissed the Amended Consolidated Complaint, and entered final judgment in favor of all defendants. In response to the Aspen Park Pharmaceuticals, Inc. (APP) Acquisition, two purported derivative and class action lawsuits were filed against the Company and certain of its officers and directors in the Circuit Court of Cook County, Illinois, captioned Glotzer v. The Female Health Company, et al., Case No. 2016-CH-13815, and Schartz v. Parrish, et al., Case No. 2016-CH-14488. These lawsuits were originally filed on or about October 21, 2016 and November 7, 2016, respectively. On January 9, 2017, these two lawsuits were consolidated. On March 31, 2017, the plaintiffs filed a consolidated complaint. The consolidated complaint named as defendants Veru, the members of its board of directors prior to the closing of the APP Acquisition and the members of our board of directors after the closing of the APP Acquisition. The consolidated complaint alleged, among other things, that the directors breached their fiduciary duties, or aided and abetted such breaches, by consummating the APP Acquisition in violation of the Wisconsin Business Corporation Law and NASDAQ voting requirements and by causing the company to issue the shares of its common stock and Series 4 Preferred Stock to the former stockholders of APP pursuant to the APP Acquisition in order to evade the voting requirements of the Wisconsin Business Corporation Law. The consolidated complaint also alleged that Dr. Steiner, a director and the Chairman, President and Chief Executive Officer of Veru and a co-founder of APP, and Dr. Fisch, a director and Vice Chairman of Veru and a co-founder of APP, were unjustly enriched in receiving shares of our common stock and Series 4 Preferred Stock in the APP Acquisition. On May 5, 2017, the defendants filed a motion to dismiss the consolidated complaint. On August 15, 2017, the court entered an order dismissing without prejudice the claims that the post-acquisition directors aided and abetted the alleged breaches of fiduciary duties by the pre-acquisition directors and that Dr. Steiner and Dr. Fisch were unjustly enriched. The court did not dismiss the claims that the company's directors prior to the closing of the APP Acquisition breached their fiduciary duties and the claims that Veru consummated the APP Acquisition in violation of the Wisconsin Business Corporation Law and NASDAQ voting requirements. On November 30, 2018, plaintiffs filed an Amended Consolidated Complaint. The Amended Consolidated Complaint makes allegations similar to those in the original consolidated complaint as to the claims that were not dismissed and names as defendants Veru and the members of its board of directors prior to the closing of the APP Acquisition. The Amended Consolidated Complaint also makes claims against Dr. Steiner for allegedly aiding and abetting the pre-acquisition directors' breach of fiduciary duty and for unjust enrichment. Like the original consolidated complaint, which was previously dismissed in part, the Amended Consolidated Complaint seeks equitable relief, including rescission of the APP Acquisition, money damages, disgorgement of the shares of our common stock and Series 4 Preferred Stock issued to Dr. Steiner, and costs and expenses of the litigation, including attorneys' fees. On December 14, 2018, the defendants filed their answer to the Amended Consolidated Complaint wherein they denied any and all liability and asserted additional defenses. On January 14, 2019, the plaintiffs filed a motion for class certification. On May 6, 2019, the Court granted plaintiffs' motion and certified a class consisting of "All holders of common stock of the Female Health Company as of October 31, 2016 and their successors in interest, excluding the named defendants to the Action and any person, firm, trust, corporation or other entity related to or affiliated with any of the Defendants." The parties filed cross-motions for summary judgment on April 15, 2019. On July 10, 2019, the Court denied plaintiffs' motion for summary judgment, granted defendants' motion for summary judgment on all counts, dismissed the Amended Consolidated Complaint, and entered final judgment in favor of all defendants. Plaintiffs have a right to appeal the final judgment. Veru will continue vigorously defending itself on appeal if necessary. Veru said, "No amount has been accrued for possible losses relating to this litigation as any such losses are not both probable and reasonably estimable." Veru Inc. operates as an oncology and urology biopharmaceutical company. The company operates through two segments, Commercial, and Research and Development. The company was formerly known as The Female Health Company and changed its name to Veru Inc. in July 2017. Veru Inc. was founded in 1896 and is headquartered in Miami, Florida. VISION PRECISION HOLDINGS: Martinez Suit Transferred to E.D. Cal. ----------------------------------------------------------------- The case, MAYRELI MARTINEZ, on behalf of herself and all others similarly situated, and on behalf of the general public, v. Plaintiff, VISION PRECISION HOLDINGS, LLC and DOES 1-100, Defendants, Case No. BCV-19-101374 (Filed on May 17, 2019), was transferred from the Kern County Superior Court to the United States District Court for the Eastern District of California on July 22, 2019. The removal of this case is pursuant to Class Action Fairness Act of 2005 (CAFA). The federal court has jurisdiction over this action under the CAFA which amended 28 U.S.C. Section 1332 to provide that a putative class action is removable to federal court if the proposed class consists of at least 100; the amount in controversy exceeds $5,000,000, exclusive of interest and costs; and one member of the proposed class is a citizen of a state different from any defendant. The United District Court for the Eastern District of California assigned Case No. 1:19-cv-01002-DAD-JLT to the proceeding. Vision Precision Holdings is an optical retailer in the United States. The company has 50 locations nationwide. [BN] Attorneys for the Defendants: Michele Haydel Gehrke, Esq. Anne Cherry Barnett, Esq. REED SMITH LLP 101 Second Street, Suite 1800 San Francisco, CA 94105-3659 Telephone: +1 (415) 543-8700 Facsimile: +1 (415) 391-8269 E-mail: mgehrke@reedsmith.com abamett@reedsmith.com - and - Mara D. Curtis, Esq. Brittany M. Hernandez, Esq. REED SMITH LLP 355 South Grand Avenue, Suite 2900 Los Angeles, CA 90071-1514 Telephone: +1 (213) 457-8000 Facsimile: +1 (213) 457-8080 E-mail: mcurtis@reedsmith.com brnhernandez@reedsmith.com WELLS FARGO: Hernandez et al. Seek Certification of Classes ----------------------------------------------------------- Alicia Hernandez et al., individually and on behalf of all others similarly situated, the Plaintiffs, vs. Wells Fargo & Company and Wells Fargo Bank, N.A., Defendants, Case No. 3:18-cv-07354-WHA (N.D. Cal.), Alicia Hernandez, Emma White, Troy Frye, Coszetta Teague, Russell and Brenda Simoneaux, John and Yvonne Demartino, Rose Wilson, Tiffanie Hood, Cyndi Floyd, and Diana Trevino will move the Court on October 17, 2019, for an order: 1. certifying these class and sub-classes: Nationwide Class: "all persons who between 2010 and 2018 (i) qualified for a home loan modification or repayment plan pursuant to the requirements of government-sponsored enterprises (such as Fannie Mae and Freddie Mac), the Federal Housing Administration (FHA), the U.S. Department of Treasury's Home Affordable Modification Program (HAMP); and (ii) were not offered a home loan modification or repayment plan by Wells Fargo due to excessive attorneys fees being included in the loan modification decisioning process" [State] Unfair Practices Sub-class: "all members of the Nationwide Class whose home loan was secured by real property located in [State]". [California / Georgia] Wrongful Foreclosure Sub-class: "all members of the Nationwide Class whose home loan was secured by real property located in [California / Georgia] whose home Wells Fargo sold in foreclosure". 2. appointing themselves as class representatives; 3. appointing Michael L. Schrag of Gibbs Law Group LLP and Richard M. Paul III of Paul LLP as co-lead class counsel pursuant to Rule 23 of the Federal Rules of Civil Procedure. [CC] Counsel for the Plaintiffs and the Proposed Classes are: Michael L. Schrag, Esq. Joshua J. Bloomfield, Esq. Linda P. Lam, Esq. GIBBS LAW GROUP LLP 505 14th Street, Suite 1110 Oakland, CA 94612 Telephone: (510) 350-9700 Facsimile: (510) 350-9701 E-mail: mls@classlawgroup.com jjb@classlawgroup.com lpl@classlawgroup.com - and - Richard M. Paul III, Esq. Ashlea G. Schwarz, Esq. Laura C. Fellows, Esq. PAUL LLP 601 Walnut Street, Suite 300 Kansas City, MO 64106 Telephone: (816) 984-8100 Facsimile: (816) 984-8101 E-mail: Rick@PaulLLP.com Ashlea@PaulLLP.com Laura@PaulLLP.com WESTERN DIGITAL: Final Settlement Approval Hearing This Month ------------------------------------------------------------- Western Digital Corporation said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on August 27, 2019, for the fiscal year ended June 28, 2019, that the court in the class action suit involving SanDisk has granted the motion for preliminary approval of the parties' settlement and scheduled a hearing to consider final approval of the deal for September 2019. Beginning in March 2015, SanDisk and two of its officers, Sanjay Mehrotra and Judy Bruner, were named in three putative class action lawsuits filed with the U.S. District Court for the Northern District of California. Two complaints are brought on behalf of a purported class of purchasers of SanDisk's securities between October 2014 and March 2015, and one is brought on behalf of a purported class of purchasers of SanDisk's securities between April 2014 and April 2015. The complaints generally allege violations of federal securities laws arising out of alleged misstatements or omissions by the defendants during the alleged class periods. The complaints seek, among other things, damages and fees and costs. In July 2015, the District Court consolidated the cases and appointed Union Asset Management Holding AG and KBC Asset Management NV as lead plaintiffs. The lead plaintiffs filed an amended complaint in August 2015. In January 2016, the District Court granted the defendants' motion to dismiss and dismissed the amended complaint with leave to amend. In February 2016, the District Court issued an order appointing as new lead plaintiffs Bristol Pension Fund; City of Milford, Connecticut Pension & Retirement Board; Pavers and Road Builders Pension, Annuity and Welfare Funds; the Newport News Employees' Retirement Fund; and Massachusetts Laborers’ Pension Fund (collectively, the "Institutional Investor Group"). In March 2016, the Institutional Investor Group filed an amended complaint. In June 2016, the District Court granted the defendants' motion to dismiss and dismissed the amended complaint with leave to amend. In July 2016, the Institutional Investor Group filed a further amended complaint. In June 2017, the District Court denied the defendants' motion to dismiss. In September 2018, the District Court granted the Institutional Investor Group's motion to certify a class of all persons and entities who purchased or otherwise acquired SanDisk's publicly traded common stock between October 2014 and April 2015, excluding those who purchased or otherwise acquired SanDisk's publicly traded common stock during the class period but who sold their stock prior to the first corrective disclosure in March 2015. The Institutional Investor Group alleged artificial inflation in the price of SanDisk's publicly traded common stock of $9.04 per share from October 16, 2014 through March 25, 2015, $2.26 per share on March 26, 2015, and $1.35 per share from March 27, 2015 through April 15, 2015. In March 2019, the parties reached a settlement of all claims in this matter, subject to formal ratification by party representatives and approval by the court. In May 2019, the court granted the motion for preliminary approval and scheduled a hearing on the final approval for September 2019. The charge related to the settlement was recorded in Selling, general and administrative expense. Western Digital Corporation develops, manufactures, and sells data storage devices and solutions worldwide. The company sells its products under the HGST, SanDisk, and WD brands to original equipment manufacturers, distributors, resellers, cloud infrastructure players, and retailers. Western Digital Corporation was founded in 1970 and is headquartered in San Jose, California. WHITE COUNTY, TN: Bilbrey et al. Sue Sheriff Dept., Seek OT Pay --------------------------------------------------------------- A class action complaint has been filed against the White County Sheriff Department and Sheriff Steve Page for alleged violations of the Fair Labor Standards Act (FLSA). The case is captioned JEWELL BILBREY, CRAIG CAPPS, DANIEL HAGGARD, CHRIS ISOM, GREG MATTHEWS, Plaintiffs, v. WHITE COUNTY SHERIFF DEPARTMENT, and STEVE PAGE, SHERIFF, Defendants, Case No. 2:19-cv-00058 (M.D. Tenn., July 22, 2019). Plaintiffs bring this claim individually and as part of a collective action, under the FLSA, 29 U.S.C. Section 216(b), on behalf of other employees of Defendants who were denied overtime compensation, straight time compensation, and were worked "off the clock." Accordingly, Plaintiffs seek to recover overtime compensation, non-overtime compensation, liquidated damages, interest, and attorneys' fees and cost pursuant to the FLSA. White County Sheriff Department is a law enforcement agency that serves and protects the citizens of White County, their rights and property. Sheriff Steve Page currently leads this law enforcement agency. [BN] The Plaintiffs are represented by: Robin C. Moore, Esq. ROBIN MOORE ATTORNEY AT LAW 220 Main Street St. P.O. Box 182 Carthage, TN 37030 Telephone: (615) 735-1100 Facsimile: (615) 735-2598 E-mail: robin@robinmoorelaw.com - and - Dana R. Looper, Esq. FRY, FRY, KNIGHT, & LOOPER 165 E. Spring Street Cookeville, TN 38501 Telephone: (931) 526-5594 Facsimile: (931) 526-5441 E-mail: danalooper@danalooperlaw.com ZEBRA TECHNOLOGIES: Warren Suit Moved to E.D. New York ------------------------------------------------------ The case, CITY OF WARREN POLICE AND FIRE RETIREMENT SYSTEM, Individually and on Behalf of All Others Similarly Situated, the Plaintiff, vs. ZEBRA TECHNOLOGIES CORPORATION, ANDERS GUSTAFSSON and MICHAEL C. SMILEY, the Defendants, Case No. 2:17-cv-04412 (Filed July 26, 2017), was removed from the U.S. District Court for the Eastern District of New York, to the U.S. District Court for the Northern District of Illinois on Aug. 28, 2019. The Northern District of Illinois Court Clerk assigned Case No. 1:19-cv-05782 to the proceeding. The suit is assigned to the Hon. John Z. Lee. The case is a securities class action on behalf of all persons who purchased Zebra common stock between March 17, 2015 and May 9, 2016, inclusive, seeking to pursue remedies under the Securities Exchange Act of 1934. Zebra Technologies Corporation is a public company based in Lincolnshire, Illinois, USA, that manufactures and sells marking, tracking and computer printing technologies.[BN] Attorneys for the Plaintiff are: Alan I. Ellman, Esq. LABATON SUCHAROW LLP 140 Broadway New York, NY 10005 Telephone: (212) 907-0700 E-mail: aellman@labaton.com - and - David A. Rosenfeld, Esq. Robert D. Gerson, Esq. Samuel H. Rudman, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 58 South Service Road, Suite 200 Melville, NY 11747 Telephone: (631) 367-7100 E-mail: drosenfeld@rgrdlaw.com rgerson@grdlaw.com srudman@rgrdlaw.com Attorneys for the Defendants: Andrew W. Stern, Esq. James Wallace Ducayet, Esq. Walter C. Carlson, Esq. SIDLEY AUSTIN LLP 787 Seventh Avenue New York, NY 10019 Telephone: (212) 839-5397 E-mail: astern@sidley.com jducayet@sidley.com wcarlson@sidley.com Attorneys Movants Gerardo Birkenfeld, City of Taylor Police and Fire Retirement System, and Steve Sylvander, individually and on behalf of all others similarly situated are: Kim E. Miller, Esq. KAHN SWICK & FOTI, LLC 500 5th Ave., Suite 1810 New York, NY 10110 Telephone: (212) 696-3730 E-mail: kim.miller@ksfcounsel.com - and - Lindsay K. La Marca, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 58 S Service Rd., Suite 200 Melville, NY 11747 Telephone: (631) 367-7100 E-mail: llamarca@rgrdlaw.com - and - Adam M Apton, Esq. LEVI & KORSINSKY, LLP 1101 30th Street NW, Suite 115 Washington, DC 22201 Telephone: (202) 524-4290 E-mail: aapton@zlk.com - and - Nicholas Porritt, Esq. LEVI & KORSINSKY LLP 1101 30th Street, Nw, Suite 115 Washington, DC 20007 Telephone: (202) 524-4293 E-mail: nporritt@zlk.com ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2019. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. 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